Prince Abdul Rasheed Adesupo Adetona & 2 Ors V. Igele General Enterprises Ltd (2011)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is an appeal against the decision of the Court of Appeal, Lagos Division delivered on the 10th March, 2005 whereby the court dismissed the appeal lodged by the Appellants against the ruling of the High court of Lagos state, which dismissed Appellants’ preliminary objection dated 16th October, 2010 filed by the Appellants in which they sought to strike out the Respondents’ suit on the ground that the suit arose from the exercise of powers and duties of a Receiver/Manager and therefore falls within the operations of the Companies and Allied Matters Act, over which the Federal High court has exclusive jurisdiction by virtue of the provision of section 251, (1)(e) of the 1999 constitution of the Federal Republic of Nigeria.

I shall briefly recount the events which culminated in the suit of the Respondent at the trial court for N2 million general and/or exemplary damages against the Appellants jointly and severally. Sometime in June, 2000, the 1st Appellant took over the management of the 2nd Appellant following his appointment as Receiver/Manager of the 2nd Appellant by the 3rd Appellant. On 7th December, 2000 (six months after the takeover), the 1st Appellant in the purported exercise of his duties broke into and locked up the premises at 27A Fatai Atere Way, Matori Mushin, Lagos, which premises also housed the Respondents office and warehouse.

The Respondent has averred that the 1st Appellant refused it access to its office and warehouse in which its chemicals and other properties worth millions of naira were kept until 6th April, 2001, in spite of efforts by the Respondent to convince him to open up the premises. By a Notice of preliminary objection dated 16th October, 2001, the appellants challenged the jurisdiction of the trial court to hear and determine the suit on the ground that the Federal High court is the court vested with jurisdiction in respect of the subject matter of the suit. In his ruling, Oshodi (J) upheld the objection and held that the court has jurisdiction to entertain the suit and dismissed the preliminary objection. The appellants by a Notice of Appeal dated 21st May, 2002 lodged an Appeal against the ruling of the trial court. In accordance with the court of appeal Rules, the parties filed and exchanged briefs of argument and the appeal was heard on 2nd February, 2005. The Lower Court in its Judgment on 10th March, 2005 dismissed the appeal and upheld the decision of the trial court assuming jurisdiction to entertain action instituted by the Respondent.

Being dissatisfied with this decision the appellants further appealed to this Court by a Notice of appeal dated 23rd day of March, 2005.

The Appellants’ sole issue raised for determination of the appeal reads thus:

“whether the Court of Appeal was right in its decision that the High court of Lagos State has jurisdiction to entertain the suit instituted by the Respondent. (Grounds 1 and 2 of the Notice of Appeal).”

In the Respondent’s brief the sole issue he identified in this appeal is:

“whether, from the Respondent’s claim and the circumstances of this case, the Court of Appeal was right in holding that the High court of Lagos state has jurisdiction to entertain the Respondent, suit.”

This appeal came up for hearing on 18th October, 2010 wherein the appellants’ counsel Olatunde Adejuyigbe Esq. adopted and relied on the Appellants’ brief of argument. He made no further amplification on the sole issue presented for determination of the appeal. However, he did not hesitate in urging this court to allow the appeal. Similarly, learned counsel for the Respondent Olanrewaju Osinaike Esq., having adopted the Respondent’s brief and relied on the same, cursorily urged this court to dismiss Appellants’ appeal in its entirety and uphold the decision of the lower court directing that the High court of Lagos state should proceed with the trial of the suit.

Learned counsel for the Appellants in the brief he settled for the Appellants submitted that it is trite law that in considering whether or not a court has jurisdiction to entertain the subject matter of a suit the writ of summons and Statement of Claim must be perused carefully in order to determine which court is vested with jurisdiction over the subject matter of the suit. In support of this submission, he cited: ADEYEMI v. OPEYORI (1976) 9-16 SC.31, OREMO II v. ADEKANYE (2004) 13 NWLR (pt.891) 572. It is therefore urged that the writ of summons and statement of Claim filed by the Respondent at the trial court must be examined by this court in determination of this appeal. Particular reference was made to paragraphs 5, 6, 7, 8, 9 and 10 of the Appellants’ statement of claim which were reproduced in the brief of argument. Referring further to s.393 of the Companies and Allied Matters Act. Cap. C.20 LFN 2004, learned counsel submitted that it confers on the 1st Appellant, being a person appointed as Receiver of the property of the 2nd Appellant, the power to take possession of and protect the property. That the court is not concerned at this stage with the propriety or otherwise of the powers exercised by the 1st Appellant over the whole premises aforesaid.

Learned counsel further submitted that whereas the grouse of the Respondent, as ventilated in the statement of claim, is clearly about the acts and conduct of the 1st Appellant in locking up the whole premises of the 2nd Appellant in the exercise of his powers under section 393(1) of the companies and Allied Matter Act. (supra). It is submitted that only the Federal High court that can exercise jurisdiction over the subject matter of the suit.

Reliance was placed on the cases of FAGBOLA v. KCCIMA (2006) 1 6 NWLR (pt.977) 439 at 450- 451; MAKERI SMELTING CO. LTD v ACCESS BANK (NIG) PLC (2002) 7 NWLR (pt.766) 447, and WEMA BANK PLC v. CHRIS ROCK LAB IND. LTD (2002) 8 NWLR (pt.770) 614 at 630-631.

In the light of the above submission learned counsel has urged this court to resolve the sole issue for determination in the negative in favour of the Appellants.

Learned counsel for the Respondent in the brief he prepared, agreeing with the Appellants, stated though, repeatedly, that in determining whether or not a court has jurisdiction to entertain the subject matter of a suit, the writ of summons and the statement of claim must be carefully examined so as to see the reliefs claimed. Reliance was placed on the cases of MUSTAPHA v. GOVERNOR OF LAGOS STATE (1987)2 NWLR (pt.58)539, 568; TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (pt.117) 517, 549 and ONUORAH v KPPC (2005) 6 NWLR (pt.921) 393. Learned counsel further supported his submission with paragraphs 5 – 25 of the Respondent’s statement of claim at the trial court. It is therefore the contention of the Respondent at the trial court that it has been a tenant in the premises of the 2nd Appellant prior to the appointment of the 1st Respondent as Receiver/Manager of the 2nd Appellant. That the Respondent is contending that it is a different and separate entity from the 2nd Appellant. Learned counsel cited the case of 7UP BOTTLING CO. LTD. and ors. v ABIOLA and SONS LIMITED (2001)13 NWLR (pt.730) 469 and contended that the Respondent was not under receivership. He also cited and relied on TRADE BANK Plc V BENILUX NIGERIA LIMITED (2003)9 NWLR (Pt.825) 416. He however, meticulously considered and distinguished other cases cited in support of the submissions of the learned counsel for the appellants. I shall however consider these authorities more closely in the course of my consideration of the sole issue presented for determination.

In their arguments on the sole issue, both learned counsel for the parties correctly stated the often-stated principle of law in determining whether or not a court has jurisdiction to entertain the subject matter of a suit. That is that the writ of summons and the Statement of claim must be carefully examined. See OPITI v. OGBEIWI (1992) 4 NWLR (pt.234) 184 at 195; ADEYEMI v OPEYORI (1976) 9-10 SC.31 at 49. It is well settled that where there is no jurisdiction to hear and determine a cause or matter, everything done in such want of jurisdiction is a nullity. See MUSTAPHA v. GOVERNOR OF LAGOS STATE (1987) NWLR (pt.58)

The salient facts of this appeal are not in dispute. It is common ground that the Appellants and the Respondent relied on the Respondent’s writ of summons and Statement of Claim, for this proposition of law, whilst the learned counsel relied on the averments in paragraphs 5, 6, 7, 8, 9, and 10 of the statement of claim as germane to the determination of the appeal, the learned counsel for the Respondent reproduced paragraphs 5 – 10, 12 -23 and 25 and relied on the averments. I have thought it necessary to reproduce the said paragraphs where it was averred as follows:

”5. On the 7th day of December 2000 after the plaintiff and her staff have closed for the day’s work, the 1st defendant with the aid of some law enforcement agents and private security men broke into and forcefully took over the plaintiff’s office and warehouse premises at no. 27A Fatai Atere Way, Matori, Mushin Lagos and locked up the whole premises on behalf of the 3rd defendant.

6. On the 8th day of December 2000, when the Managing Director and other staff of the plaintiff got the said premises to resume work for the day, they met the whole premises locked up with private security men stationed there by the 1st defendant guarding the premises thereby denying the plaintiff and her staff access into their rented office and warehouse.
7. The plaintiff made several efforts to convince the 1st defendant and even his solicitors to allow them access to their office and warehouse but all to no avail. Some of these efforts includes personal visit of the plaintiff’s Managing Director to the 7th defendant’s and even his solicitors’ office where he showed them the plaintiff’s importation-documents to convince them of ownership of the chemicals but they were adamant and refused to open the premises for him except the 2nd defendant or her chairman pays all the money they owe the 3rd defendant.
8. The plaintiff averts that the 1st defendant is aware of the fact that the plaintiff is a tenant in the said premises through his and or his staff’s interaction with the plaintiff and her staff/directors since June 2000 when he first took over the running of the affairs of the 2nd defendant as a receiver/manager appointed by the 3rd defendant.
9. The plaintiff avers that on the 8th day of December 2000, Chief Oluyombo Akoni, the Chairman of the 2nd defendant wrote to the 1st defendant confirming the fact that the plaintiffs is a tenant in the said premises and should be allowed access to their office and warehouse but the 1st defendant still refused to allow the plaintiff to have access to the said premises…
10. On the 11th day of December 2000, the plaintiff’s solicitors, Messrs Olu Arotiba & Company wrote a letter to the 1st defendant which was copied to the 3rd defendant to reopen the said premises and allow the plaintiff have access to their office and warehouse in order to carry out their legitimate business but the 1st defendant still refused to do so..
11. The plaintiff avers that this action of the defendants totally paralysed her business since the month of December and January is a peak period of chemical business.
12. The plaintiff avers that as at the time of the defendants’ action aforesaid, the plaintiff have chemicals worth over N30,000,000.00k (Thirty million naira) in her warehouse in the premises which they did not allow her to sell to her customer all over Nigeria many of whom had earlier deposited large sums of money for the chemicals but their money had to be refunded by the plaintiff…
13. The plaintiff further avers that apart from the chemicals in the said warehouse, the plaintiff also have a container load of chemicals on a trailer truck that came into the premises shortly before the close of work on Thursday 7th December, 2000 and was to be offloaded on Friday 8th December, 2000 when the plaintiffs staff got to the premises only to discover that it has been locked up by the defendants…
14. All these chemicals were imported by the plaintiff with the aid of loans from WEMA SECURITIES AND FINANCE PLC to the tune of N20,000,000 (Twenty million naira) at 30% interest per annum and other charges with the aim of making profit during the December/January peak period of chemical business and then pay back, but the plaintiff could not honour her obligations to the company.
15. Moreover, before the action of the defendants aforesaid, the plaintiff had concluded arrangements for the importation of another container load of chemicals from Messrs THOSCO, GMBH, Germany containing 500 drums of petroleum Jelly and Vitamin C, Sodium Citrate plus other assorted chemicals worth U.S. Dollars $70,815.00 and U.S. Dollars $49,177.50 respectively and which was to be partly financed by a 90 days loan facility at 30% interest per annum by Emi capital resources limited and the plaintiff in the ratio of N5,796,250.00 to N2,000,000.00. This container was to be shipped on 15/12/2000 and due to arrive in Lagos on 31/12/2000 but the transaction had to be cancelled by the plaintiff as a result of the defendants’ action which paralysed his business and thereby did not allow her to raise the funds through the sale of his chemicals and unavailability of his warehouse to store the chemicals..
16. The plaintiff had to pay a penalty in the sum of U.S. Dollars $12,000.00 (Twelve thousand U.S. Dollars) to Messrs THOSCO GMBH, Germany for the cancellation…
17. The plaintiff avers that as a result of the defendants’ action aforesaid, her major business financiers, Wema Securities and Finance Plc stopped further credit exposures and other financial aids to the plaintiff and this has adversely affected her business.
18. The plaintiff further avers that the marriage ceremony of the plaintiffs secretary was also affected by the defendants’ action aforesaid as all the 110 dozens plastic gift items kept in her office for safekeeping could not be used for the ceremony which came up on 16th December, 2000. The plaintiff had to buy and print on a new set of plastics for the ceremony at a higher cost.
19. The plaintiff as a result of the defendants’ action had to divert another container load of chemicals that arrived her office and warehouse on the 9th day of December 2000 to a hurriedly rented warehouse at a rent of N20,000.00 per month …..
20. The plaintiff avers that apart from all these monumental monetary loss suffered by the plaintiff and her staff as a result of the defendants’ action, they also suffered a lot of embarrassment, harassment and emotional torture as they stayed in the open sun in front of the premises everyday to inform their customers who came from all over Nigeria of the situation of things some of whom call them “four-one-nine” and all sorts of unprintable names for her failure to deliver their chemicals to them.
21. The plaintiff avers that when the defendants eventually allowed the plaintiff to have access to her said office and warehouse on the 6th day of April 2001 two tons of the Aluminium hydroxide gel chemicals in her warehouse have expired…..
22. The plaintiff further avers that as a result of the defendants action the plaintiff had to rent a new office and warehouse at a higher costs than what she normally pays for her office/warehouse premises, which the defendants blatantly refused to allow the plaintiff to continue to use….
23. Whereof the plaintiff claims from the defendants jointly and or severally the sum of N20,000,000.00 (Twenty million naira only) being special, general and or exemplary damages suffered by the plaintiff as a result of the action of the defendants in taking over and locking up the plaintiff’s office and warehouse premises at No. 27A Fatai Atere Way, Matori Mushin Lagos.

It seems quite clear to me that after careful reading of the above paragraphs of the Respondents (as plaintiff) averments the gravemen of the Respondent’s contention at the trial court can be summarized as follows:

(i) That the plaintiff is a tenant in premises No. 27A Fatai Atere way, Matori Mushin, Lagos, prior to the appointment of the 1st Appellant as Receiver/Manager of the 2nd Appellant. This status was known to the 1st Appellant herein upon his assumption of office as the Receiver/Manager.

(ii) The Respondent’s contention is that it is a different and separate entity from the 2nd Appellants over which the 1st appellant was appointed as Receiver/Manager.

(iii) The 1st Appellant had in the exercise of his functions detained the Respondents goods in the warehouse and also prevented it from carrying on its legitimate business and it thereby sustained losses for which it is asking by its reliefs to be compensated in the sum of N20,000,000.00 (Twenty Million naira ).

(iv) That the Respondent’s action is one of tort for detinue unlawful interference with business and trespass which a state High court has jurisdiction by virtue of section 272 of the 1999 constitution.

Emboldened by his position in defence of the 1st Appellants’ action, learned counsel has argued that section 393 (1) of the Companies and Allied Matters Act Cap C.20, Laws of the Federation of Nigeria 2004, confers on the 1st Appellant powers to take possession of and protect the Property at No. 27A FATAI ATERE WAY, MATORI MUSHIN LAGOS which forms part of the assets of the 2nd Appellant over which the 1st Appellant was appointed a Receiver/Manager.”

I am, to some extent, in agreement with this proposition. However, with due respect the learned counsel has failed to understand the mandate and powers of the Receiver/Manager in the circumstance. The provision of CAMA referred to does not empower the Receiver/manager to arbitrarily lock up the premises of other persons or detain their properties in the purported exercise of his power. The Appellants further argued that because the conduct complained of in the statement of Claim is attributable to the Receiver/Manager, the Federal High court must necessarily have jurisdiction. This argument to me is preposterous, it does not hold. This negates the capacity of the High Court to entertain a matter that is clearly within its jurisdiction. The Respondent seems to be suggesting that the Federal High court shall have jurisdiction to entertain any matter involving a Receiver/Manager or that the mere mention of his name in a claim makes it a proper one for the Federal High court to have jurisdiction to entertain. The position of the law is admirably captured and enhanced in the case of 7up BOTTLING CO. LIMITED & ORS v. ABIOLA and SONS LIMITED (supra). where the acts and conduct complained of are that of a Receiver/Manager. It was similarly argued on behalf of the Appellants in that case that because it was a Receiver/Manager who sold the Respondent’s properties, it was a matter which bordered on the operation of the companies and Allied Matters Act and falls within the exclusive jurisdiction of the Federal High Court. This Court Per ONU JSC discountenanced this argument and held that since there was an extant injunction restraining the Receiver/Manager from selling the Respondent’s properties, the sale of those properties amounted to conversion which is an action in tort over which the Kwara State High Court has jurisdiction.

Learned counsel for the Respondent made a point in his brief that the position of the Receiver/manager in the 7UP case (supra) when compared with the instant case, is quite stronger than that of the 1st Appellant herein because the Receiver/manager in the said 7up case was actually appointed in respect of the assets of the Respondent which he sold wrongly. In the case at hand the 1st Appellant though appointed a Receiver of the 2nd Appellant but not in respect of the Respondent’s office which he locked up and its good in the ware house which he detained in the purported exercise of his functions. In other words the Respondent is a different and separate entity from the 2nd Appellant over which the 1st Appellant was appointed a Receiver/Manager. Also in TRADE BANK PLC v. BENILUX LIMITED (2003), 9 NWLR (pt.825) 416, this court in considering the exclusive jurisdiction of the Federal High court in matters provided under the section 230 (1) (d) of the constitution (suspension and Modification) Decree No.107 of 1993, held that although there is no relationship of customer and banker between the respondent and the appellant which fact would ordinarily have conferred jurisdiction on the High court, the respondent’s case therein, was simply a tort of conversion and therefore actionable in the High Court of a State.

Therefore in the fight of the foregoing, I hold contrary view to the position taken by the appellant’s counsel in his submission that the court below “fell into grave error when it held that the claim is not related to or arose from performance of the duties and powers of the 1st, Appellant as Receiver/Manager of the 2nd Appellant.” It is my respectful view that the paragraphs of the statement of claim, as set out above support the decision of the lower court since the Respondent that it is merely a tenant and therefore a different and separate entity from the 2nd Appellant which is in receivership.

I am not unmindful of the reliance placed on the decision of the lower court by the learned counsel for the appellants. He has only picked up a portion of that judgment, and not the entire ratio upon which the matter was decided. The court below merely reiterated the matters upon which the Federal High court has jurisdiction under section 251(1) (e) of the 1999 constitution.

The Appellants in their brief further placed reliance on the decision of the court of Appeal in MAKERT SMELTING Co. LTD v. ACCESS BANK PLC (supra), where the court of Appeal rightly held that the Federal High court had jurisdiction to entertain the suit instituted by the Respondents, therein. The originating summons in this case raises the issue of duties, powers and liabilities of Receiver/Manager which is a matter arising from section 393 (1) (2) of the 1999 constitution, the Federal High Court has, to the exclusion of any other court, Jurisdiction to hear and determine civil causes and arising from the operations of the companies and Allied Matters Act or any other enactment regulating the operation of the companies and Allied matters Act of any enactment regulating the operation of companies incorporated under the Act.

What makes the instant case radically different from Makeri’s case is that the Receiver/Manager in that case was not sued by a third party for conversion or detinue nor did he violate the rights of a third party in the exercise of his functions.

The case of WEMA BANK PLC v. CHRISROCK LAB. IND. LTD. (2002) 8 NWLR (pt.770) p.614 was also cited to further support the Appellant’s contentions. I have carefully read the case. It does not help the appellants, case. It is however clear from the facts of that case that the grudge which the Plaintiff/Respondent had was against the Receiver/Manger to the effect that he had not performed the functions given to him bona fide. Again, I have observed that as canvassed in MAKERI case (supra), the claim of the Plaintiffs/Respondents in the WEMA case (supra) is radically different from the case at hand. In the latter case the Plaintiffs/Respondents are challenging the exercise of powers by the Receiver/Manager and at the same time challenging the validity of the mortgage debenture, whereas in the instant case, the Respondent, a third party, at the trial court is asking for damages in tort for detinue and disruption of its business.

In the light of the foregoing the appeal is dismissed for lacking in merit. The decision of the court below is affirmed. Consequently, the matter is remitted to the High Court of Lagos state for expeditious trial. I make no order as to costs.

SC.237/2005