National Investment & Properties Co. Ltd Vs The Thompson Organisation Ltd & 2 Ors (1969)

LawGlobal-Hub Lead Judgment Report

LEWIS. JSC.

In Suit LD/696/1965 the plaintiffs claimed in their writ against the defendants jointly and severally as follows:-

“( 1) A declaration that the meeting of the Board of Directors of the 2nd defendant/company held at 5/11, Apongbon Street. Lagos, on 23rd November, 1965 was not properly and validly convened.

(2) A declaration that the decisions taken at the meeting referred to in claim (1) above arc invalid, ultra vires the 2nd defendant/company and of no effect whatsoever.

(3) A declaration that the appointment of the 3rd defendant Alfred Ehren by the 1st defendant/company as receiver of the 2nd defendant/company is invalid, ultra vires the said defendant/company and of no effect whatsoever.

(4) An injunction restraining the 1st and 2nd defendants , from giving effects to all or any of the decisions referred to in claim (2) above.

(5) An injunction restraining the 3rd defendant Alfred Ehren from acting: as receiver of the 2nd defendant/company and from interfering with the assets of the said company. 

(6) An injunction restraining all the defendants from disposing of any of the movable and immovable assets of the 2nd defendant/company and from dealing with any of the said assets of the 2nd defendant/company in any way not approved by the plaintiffs or not in accordance with the agreement subsisting between the plaintiff ;and the 1st and 2nd defendants or not in accordance with the Memorandum and Articles of Association of the 2nd defendant/company

(7) £500,000 against the 1st defendant for breach of the written agreement between them and the plaintiffs dated 31st December, 1962 and l4th May, 1963.”

On the 3rd of May. 1966 Sowemimo Ag. C. J. in the Lagos High Court dismissed the claims of the plaintiffs with 200 guineas cost and against that decision the plaintiffs have appealed to this Court. The claims arose out of the running of the Amalgamated Press of Nigeria Limited (the 2nd defendants) which inter alia published the Daily Express and Sunday Express newspapers.

Allied Newspapers Limited and Thomson International Limited were originally running in partnership the 2nd defendants with Allied Newspapers Limited holding 66,4 13 ‘A’ Ordinary shares in the company and Thomson International Limited holding 66,413 ‘B’ Ordinary shares.

A partnership agreement was first entered into on the 11th of August, 1960 (ex. D) between Thomson International Limited and Allied Newspapers Limited, but this was superceded by an agreement (ex .DI) of the 31st of December 1962 between Thomson International Limited, Allied Newspapers Limited and National Investment and Properties Company Limited (the plaintiffs) whereby the plaintiffs replaced Allied Newspapers Limited in accordance with the terms of that new agreement.

The agreement of the 31st of December, 1962 ex. D I) was in turn modified by a supplementary agreement of the 14th of May 1963, (ex. D2) between Thomson International Limited, the plaintiffs and Thomson Organisation Limited (the 1st defendants) whereby inter alia the 1st defendant replaced Thomson International Limited.

Certain debenture stock had been issued by the 2nd defendants consisting of (a) £970,903 of 60% ‘A’ debenture stock on the 24th of April, 1963 (ex ‘E’) with the l st defendants as registerd holders and (b) £40,000 of 6% “A” debenture stock on the 28th of November, 1963 (ex. EI) with the 1st defendants as registered holders and (c) £239,563. 3s.4d of 6% ‘B’ debenture stock On the 24th of May, 1963 (ex .‘E2’) with the plaintiffs as registered holders. There were also two mortgages entered into by the 2nd defendants with trustees on behalf of the 1st defendants dated the 9th of March, 1964 (ex. G) and supplemental thereto dated the 8th of July, 1965 (ex. GI ) both secured onthe debenture stocks exhibits E and EI. On the 23rd of November, 1965 the 1st defendants purported to act under the powers in exhibits E, EI,G, and GI and appointed by exhibit H the 3rd defendant as the receiver of the property charged by these debenture stocks and mortgages. On the same date, that is 23rd of November, 1965, at a meeting of the Board of Directors of the 2nd defendants it was resolved acccording to the minutes (ex. ‘W’)-   ‘That the company shall forthwith cease publication of the Daily Express and Sunday Express newspapers, while continuing to operate the companys commercial printing department for as long as prudent commercial considerations might dictate.’ In the present action the plaintiffs sought to challenge the validity of the meeting of the Board of Directors of the 23rd of November, 1965 and the decision taken thereat, together with the appointment of the 3rd defendant as the receiver: they also sought injunctions and claimed £500.000 damages for breach of the agreements exhibits DI and D2 all of which claims, as has been stated. were dismissed in the High Court. Chief Akin Olugbade has filed 11 grounds of appeal and in his very extensive arguments in regard to these he has ranged over a wide canvas, and indeed considerably overstepped his grounds of appeal.

The whole purpose of grounds of appeal is to give notice to the other side of the case they have to meet in the appellate court and if an appellant wishes to crave in aid errors or misdirections not falling within his grounds of appeal as filed he must either obtain leave to file additional grounds of appeal or obtain leave to amend his grounds of appeal. In particular, we must reiterate what this Court has said many times, that if errors of law are alleged then the errors complained of must be fully set out in the grounds of appeal. It is convenient here to deal with one other general matter.

Chief Akin Olugbade frequently asked us to look at the evidence adduced and not at the pleadings as it was the evidence that mattered. Now just as an appellant is bound by his grounds of appeal so at the earlier stage of the action both parties are bound by their pleadings and it is elementary that admissions in pleadings do not have to be proved. In so far as pleadings do not contain admissions then the matters alleged must be proved in evidence. but that evidence cannot derogate from the pleadings as Chief Akin Olugbade seems to us to think it could. See Idahosa v Oronsaye 4 FSC.166 at 171.

A plaintiff must call evidence to support his pleadings and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It makes no difference, as Chief Akin Olugbade suggested. that the other side did not object to the evidence or that the judge did not reject it.

It is of course, the duty of counsel to object to inadmissible evidence and the duty of the trial court any way to refuse to admit inadmissible evidence, but if notwithstanding this evidence is still through oversight or otherwise admitted then it is the duty of the court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.

This has long been the case but it is clearly set out in the judgment of this Court in Bada v. The Chairman L.E.D.B. SC. 501/65 of the 23rd of June, 1967. We cannot therefore look at or accept evidence on [he record here when it runs contrary to the pleadings of the plaintiffs. Chief Akin Olugbade first argued grounds I and S of his grounds of appeal together which read:- “(1) The learned trial judge misdirected himself in law and in fact when he held that a meeting of the Board of Directors of the 2nd defendants which took place on the 23rd of November, 1965 was a meeting of the debenture stock holders of A and B debentures.

(5) The learned trial judge misdirected himself in law by holding that a resolution of the Board of Directors of the 2nd defendants ceasing publication of their newspapers did not make a change in the objects of the 2nd defendants company. Such as would require a special resolution and the unanimous vote of the directors for the time being: It was here his submission that the meeting of the 23rd of November, 1965 was a meeting of the Board of Directors of the 2nd defendants not, as the learned trial judge stated in his judgment, of the debenture stockholders in categories ‘A’ and ‘B’.

We agree that the meeting of the 23rd of November, 1965 was a meeting of the Board of Directors but Chief Akin Olugbade then asks us to hold that that meeting was ultra vires as it was held contrary to Article 45 of the Articles of Association (ex. C) which reads:- ’45.

(1) The Directors may meet together for the despatch of business. adjourn or otherwise regulate their meetings as they think fit. At any meeting of the Directors each ‘A’ Director shall be entitled to one vote and each ‘B’ Director shall be entitled to two votes except on any Questions of Management (as below defined) when one of such . B Directors shall be entitled to three votes. In the case of an equality of votes the Chairman shall, except on any Question of Management, have a second vote or casting vote. The Chairman may, and the Secretary on the requisition of any Director shall, at any time summon a meeting of the Directors,

(2) ‘Questions of Management’ shall mean and include the following:- (i) The appointment of all expatriate staff; (ii) the dismissal of any member of the staff of the company whether Nigeria

Other Citation: (1969) LCN/1697(SC)