Taiwo Okeowo & Ors V. Mrs D.a Migliore & Ors (1979)

LawGlobal-Hub Lead Judgment Report

G. IRIKEFE, J.S.C.

This appeal deals with two rulings, namely:(a) that dated 27th June, 1977 by Belgore, J.and (b) That dated 25th November, 1977 by the same Judge.

The latter ruling as will appear hereafter in the judgment, was aimed at facilitating the implementation of the order made in the earlier ruling. At its inception, this matter ran into the teeth of formidable procedural opposition, which progressively lost its sting in the course of its journey through the Federal Revenue Court was invoked by the respondents herein by means of an originating summons which reads:

“Let all the parties concerned attend one of the Judges sitting at the Federal Revenue Court, Lagos on Monday the 18th day of April, 1977 at the hour of9 o’clock in the forenoon on the hearing of an application by the above-named applicants who are directors of the above-mentioned company , METAL CONSTRUCTION (WEST AFRICA) LIMITED;

(i) For a declaration that the 4th defendant’s appointment as Secretary to the said company is illegal, null and void and should be set aside;

(ii) That directions may be given as to the manner in which a meeting of the board of the said company may be summoned, held and conducted for the purpose of considering and if thought fit, passing the following resolution:

“That Mr. E. Olatunde Ayoola, Chartered Accountant, be and he is hereby removed as Secretary of the Company and that Mr. O.O. Ede, Legal Practitioner, be and is hereby appointed Acting Secretary of the Company and that the said Mr. E. Olatunde Ayoola do surrender forthwith to the said Mr. O.O. Ede all the company’s properties in his possession. ”

(iii) That all such ancillary and consequential directions may be given as the Court thinks fit.”

The appellants promptly moved the Federal Revenue Court to set aside or strike out the originating summons because, according to the contention of their counsel, an originating summons was inappropriate for this type of matter, adding that the correct procedure was by issuing a writ of summons.

The divers applications are supported by a mass of affidavit evidence which are set out in chronological order in the lead judgment, which has just been read by my learned brother, ANIAGOLU, J.S.C. Accordingly, I propose to confine myself to carrying only those portions of the evidence as are material in my contribution to this judgment.

The company, METAL CONSTRUCTION (WEST AFRICA) LIMITED, was incorporated in 1958 and by March, 1974, the entire authorised share capital were held by Sergio Migliore to the tune of 187,500 shares of N2 each and Delia Migliore (his wife) 12,500 shares. Both are Italian nationals. With the promulgation of the Nigerian Enterprises Promotions Decree (No.4 of 1972) now repealed and re-enacted as Decree No.3 of 1977 of the same name, it became compulsory for the Italian proprietors of the company to shed 40% of their share-holding to Nigerians. These shares were taken up by the 2nd and 3rd appellants herein in the percentage of 35 and 5 respectively. When this matter arose in 1977, the share-holding in the company was as follows:

NAME SHARES % HOLDING

POSITION IN COMPANY

MR. SERGIO MIGLIORE 107,500 53.75