Titilayo Plastic Industries Limited & Ors V. Chief Joshua Abesi Fagbola (2019)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Benin Division delivered on 7th August 2003, setting aside the Ruling of the Federal High Court, Akure Division, delivered on 27th July, 2000.

The brief facts that gave rise to the dispute between the parties are as follows: The respondent was the Managing Director and Chief Executive Officer of the 1st appellant. During his tenure, the 1st appellant sought a loan facility from the 2nd appellant for a period of 5 years. It was secured by a Deed of Floating Debenture dated 21st April, 1998 over the 1st appellant’s assets. The debenture also empowered the 2nd appellant to appoint a receiver/manager for the 1st appellant in the event of a default in the repayment of the facility. The 1st appellant defaulted in the repayment of the facility. A receiver/manager in the name of one Simeon Ololade Fadeyibi was appointed for the 1st appellant and the appointment was duly registered at the Corporate Affairs Commission. In fulfillment of his mandate, the receiver/manager requested for a statement of the

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affairs of the 1st appellant.

The respondent, although duly notified of the appointment of the receiver/manager, was uncooperative and failed to provide the information. The present appellants, on 23/3/2000, instituted an action by way of Originating Summons before the Federal High Court, Akure (the trial Court) seeking the following reliefs against the respondent:

1. A declaration that the right of the 3rd plaintiff [Owena Bank Plc.] as the holder of a floating debenture over the assets of the 1st plaintiff [Titilayo Plastics Industries Ltd.] having arisen, the appointment of the 2nd plaintiff [Simeon Fadeyibi] as a Receiver/Manager of the assets of the 1st plaintiff vide Deed of Appointment dated 27/12/99 is proper, valid and subsisting.
2. A declaration that as the Receiver/Manager of the 1st plaintiff, the 2nd plaintiff is entitled to the possession of all the assets and monies of the 1st plaintiff (excluding land) wherever located.
3. A declaration that the 2nd plaintiff as Receiver/Manager of the 1st plaintiff is entitled to exercise any and/all the powers conferred on him by the security documents and any other Law in that

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regard.

4. An order that the defendant immediately deliver the Statement of Affairs of the 1st plaintiff to the 2nd plaintiff herein.

5 An order of injunction restraining the defendant herein, his agents, servants and privies from acting or further acting, managing, or holding himself out, carrying out in any manner whatsoever and howsoever exercising by delegating or otherwise the powers of Director, Manager, Chief Executive of the 1st plaintiff or interfering with or obstructing the exercise of the powers of the Receiver/Manager of the 2nd plaintiff over the assets of the 1st plaintiff so long as the Receiver/Manager subsists.

6. An order of injunction restraining or ordering the defendant whether by himself or by his servants, agents or privies whomsoever and howsoever from further entering into, upon and from remaining upon the 1st plaintiff’s premises situate at 57 Oyemekun Road, Akure, Ondo State and factory at kilometre 4 Oba Ile Road, Akure, Ondo State, or wheresoever or remaining in possession of the business premises and assets of the 1st plaintiff’s bank accounts irrespective of wherever the said assets of the 1st plaintiff may

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presently be during subsistence of the 1st plaintiff’s receivership by the 2nd plaintiff.”

They filed a 24-paragraph affidavit in support with five exhibits. They also sought and obtained several interim ex parte orders of injunction against the respondent.

After being served with the Originating Summons, the respondent filed a motion dated 5/4/2000 challenging the jurisdiction of the trial Court to entertain the suit and seeking the discharge of the interim orders made in favour of the appellants. He sought the following reliefs:

“1. An extension of time within which to apply to discharge the interlocutory orders of the Court made on 23/3/2000 on Ex-parte Motion.

2. A discharge of the 6 (six) orders made on 23/3/2000 on Ex-parte Motion.
3. An order striking out this Suit for having been irregularly filed since the Originating Summons had not been regularly issued.
4. An order striking out this suit having been wrongly commenced by way of Originating Summons contrary to the Rules of Court in that there are disputed facts in this suit.
5. An order striking out this suit in that the plaintiffs’ interests are not the same

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such as to be able to maintain a joint suit in this case.

6. And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances of this case.”

The appellants filed a counter affidavit to the application with one exhibit attached thereto.

On 17/4/2000, while the formal application was pending, the respondent’s former counsel, Chief Fesobi, made an oral application for the discharge of the interim orders on the ground that they had lapsed by effluxion of time. It was refused. The substantive motion on notice was eventually argued. In the course of argument, the respondent’s counsel, Chief Wole Olanipekun, SAN, withdrew prayers 1 and 2 of the motion. In a considered ruling delivered on 27/7/2000, the subsisting prayers 3 5 were refused. It is worthy of note that the interim orders were subsequently replaced with interlocutory orders on 16/10/2000 with the consent of the parties.

The respondent was dissatisfied with the ruling of the trial Court and consequently lodged an appeal at the Court of Appeal, Benin Division. In a considered judgment delivered on 7/8/2003, the Court allowed the

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appeal, set aside the ruling and struck out the Originating Summons on the following grounds:

1. That the life span of the ex-parte order made on 23/3/2000 was 14 days and it had lapsed due to effluxion of time having regard to the provisions of Order 9 Rule 12 (1) & (2) of the Federal High Court (Civil Procedure) Rules, 2000, which were the applicable rules at the time the application was argued.
2. That the suit was contentious and ought to have been initiated by way of a writ of summons rather than by originating summons. The Court also held that the Originating Summons was bad for non-compliance having not been signed by either the Registrar or the Presiding Judge.
3. That the Receiver/Manager was not entitled to sue in his own name without an order of Court.
4. It also held that the difference between Simeon Fadeyibi, as contained in the originating summons and Simeon Ololade Fadeyibi said to have been appointed Receiver/Manager is not a mere misnomer but a fundamental defect.

The appellants are unhappy with this verdict and have therefore filed an appeal before this Court vide their notice of appeal filed on 5/11/2003

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containing 6 grounds of appeal.

At the hearing of the appeal on 19/2/2019, O. BADEWOLE ESQ., adopted and relied on the appellants’ brief filed on 9/8/2017 but deemed filed on 14/11/2017 along with their reply brief filed on 8/11/17 but deemed filed on 14/11/17. AYODEJI MOSES OLATUBORA ESQ., adopted and relied on the respondent’s brief filed on 8/11/2018 but deemed filed on 19/2/19.

The appellants formulated 4 issues for determination as follows:

1, Whether the Court below was right or wrong in striking out the Originating Summons filed by the appellants. (Grounds 1 & 2)

2. Whether the Court below was right or wrong when it held that the orders made against the respondent automatically lapsed after 14 days from the date when the application to discharge the orders was filed. (Ground 3)
3. Whether the Court below rightly or wrongly made findings on the appointment of the receiver when the issue was neither raised as a ground of appeal nor as an issue for determination in the Respondent’s brief of argument at the Court below. (Ground 4)
4. Whether the Court below rightly or wrongly held that there were anomalies in the name of

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the 3rd appellant in the Originating Summons and the notice of appointment as receiver.

On his part, the respondent distilled only 2 issues for determination thus:

1. Having regard to the clear and unambiguous provisions of Order 9 Rules 12 (1) and (2) of the Federal High Court (Civil Procedure) Rules, 2000, whether the Court of Appeal was not right to have held that the interim orders of injunction granted on 23rd March, 2000 had automatically lapsed.
2. Having regard to the various defects in the Originating Summons in this suit, whether the Court of Appeal was not right to have struck out the Originating Summons having held same to be improperly constituted.

A careful perusal of the issues formulated by the parties reveals that the appellants’ 4 issues can be subsumed in the two issues formulated by the respondent. The appellants’ issues 1, 3 and 4 deal with the striking out of the Originating Summons which is covered by the respondent’s issue 2 while the appellants’ issue 2 is the same as the respondent’s issue 1. In my view, the 2 issues that arise for consideration in this appeal are:

1. Whether the lower Court was right when

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it held that the interim orders made against the respondent lapsed after 14 days from the date the application to discharge the orders was filed

2. Whether the lower Court was right to have struck out the Originating Summons on the ground that it was improperly constituted

Issue 1

Whether the lower Court was right when it held that the interim orders made against the respondent lapsed after 14 days from the date the application to discharge the orders was filed

In support of this issue, learned counsel for the appellant reviewed the facts surrounding the interim orders of injunction made ex-parte. He recalled that on 23/3/2000, the ex-parte orders granted were to last until the determination of the motion on notice. Before the date fixed for the hearing of the motion on notice, an application was filed on behalf of the respondent dated 5/4/2000 for the discharge of the interim ex-parte orders. As stated in the introductory part of this judgment, an oral application for the discharge of the orders was made prior to the hearing of the formal application. The oral application was refused on 17/4/2000. In the course of arguing the

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substantive application to discharge the interim ex-parte orders, Chief Wole Olanipekun, SAN, the new counsel for the respondent withdrew prayers 1 and 2 for the discharge of the orders. The prayers and submissions made in respect thereof were accordingly struck out in the course of the ruling delivered on 27/7/2000 (see page 66 lines 2 16 of the record).

It is the contention of learned counsel for the appellants that since prayers 1 and 2 seeking the discharge of the interim ex-parte orders were withdrawn and there was no appeal against the earlier refusal of the respondent’s oral application, there was no decision on the issue that could form the basis for the consideration by the lower Court of whether or not a motion was required to set aside the said order.

Apparently arguing in the alternative, learned counsel argued that there was no basis for the decision to set aside the interim orders made on 23/3/2000. He submitted that Order 9 Rule 12 (1) and (2) relied upon by the lower Court envisages a pending formal application. He submitted that in the absence of a pending formal application, the provisions of Order 9 Rule 12 (1) and (2)

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could not be relied upon for the discharge of the ex-parte orders by effluxion of time. He noted that from the record, the interim orders had been replaced by an interlocutory order of injunction granted by the consent of both parties. He contended that in the circumstances there was no ex-parte order capable of being vacated or discharged in existence at the time the lower Court delivered its judgment.

He submitted that assuming, though not conceding, that Order 9 Rule 12 (1) was rightly applied, the order does not envisage the disposal of the application within 14 days of filing but rather that the application must be taken within 14 days of filing. He contended that once argument has commenced, there is no time limit within which arguments must be concluded and therefore, once argument had commenced on the application, Order 9 Rule 12 ceased to be applicable. He submitted further that the said provision must not be construed in isolation but must be construed in conjunction with Order 23 of the Rules, which empowers the Court to enlarge the time for doing anything prescribed by the rules. He relied on: Fashogbon Vs Layade (1999) 11 NWLR (Pt.628) 543 @

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555; Egolum Vs Obasanjo (1999) 7 NWLR (Pt.611) 358 @ 393 E F. He argued that pursuant to Order 23, the time prescribed under Order 9 Rule 12 could be enlarged thereby saving the interim orders made by the learned trial Judge which were to subsist until the hearing and determination of the motion on notice. He submitted that failure to adhere strictly to Order 9 Rule 12 would not nullify the ex-parte orders.

In reaction to the above submissions, learned counsel for the respondent reproduced the provisions of Order 9 Rules 10, 11 and 12 of the Federal High Court (Civil Procedure) Rules, 2000 and submitted that the said provisions, which are clear and unambiguous, must be given their natural and ordinary meaning. He referred to: Ojukwu Vs Obasanjo (2004) 12 NWLR (Pt.886) 169 @ 197; Awolowo Vs Shagari & Ors. (1979) 6 9 SC 51 @ 91 and several other authorities. He placed emphasis on the phrase shall automatically lapse” used in Rule 12 (2) and submitted that no further judicial pronouncement was required upon the expiration of 14 days after the party bound by the order had applied for it to be discharged, before it becomes

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automatically discharged. In other words, that the discharge of the ex-parte order by effluxion of time under the rules is automatic.

He referred to a recent decision of this Court in: Brittania-U (Nig.) Ltd. Vs Seplat Pet. Dev. Co. Ltd. (2016) 4 NWLR (Pt.1503) 541 @ 612, which approved an earlier decision of the Court of Appeal in Oliver Vs Dangote Ind. Ltd, (2009) 10 NWLR (Pt.1150) 467, to the effect that where an application to vary or discharge an interim order is not taken within 14 days of its being filed, the interim order would automatically lapse. He submitted that the implication of Order 9 Rule 12 is that an interim order is not expected to last more than 14 days under any circumstances. He submitted that in the circumstances, the interim orders of injunction granted on 23/3/2000 lapsed automatically 14 days after the respondent’s motion dated 5/4/2000 was filed.

He submitted that the contention that the ex-parte orders were to last until the determination of the motion on notice is an invitation to the Court to endorse illegality and is contrary to the decision in Brittania-U (Nig.) Ltd. Vs Seplat Pet. Dev. Co. Ltd. (supra).

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In his reply brief, learned counsel for the appellants merely repeated the submissions made in his main brief. This Court has observed, times without number, that the purpose of a reply brief is to respond to new issues raised in the respondents brief which were not addressed in the appellant’s brief. It is not to afford the appellant an opportunity to re-emphasise points already made in his main brief or to improve upon his submissions. See: Abdullahi Vs Military Administrator & Ors.(2009)15 NWLR (Pt.1165) 417; Dogo Vs The State (2013) LPELR-20175 (SC) @ 14 C E; Musaconi Ltd. Vs Mr. H. Aspinall (2013) LPELR-20745 (SC) @ 21 22 D B. The repetitive submissions shall be disregarded.

I have given careful consideration to the submissions of both learned counsel on this issue. There is one significant factor that learned counsel for the respondent appears to have overlooked. This is the fact that Chief Wole Olanipekun, SAN, in the course of arguing the application dated 5/4/2000, withdrew the prayers relating to the discharge of the interim orders granted ex-parte. At pages 11 & 12 of the ruling, which was the subject of the

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appeal to the lower Court, the learned trial Judge observed and ruled as follows:

“I have carefully considered the facts of this case as well as the submissions of the Counsels (sic: counsel). It may be recalled that Chief Olanipekun, SAN had made extensive submissions on 3rd May 2000. He stopped midway because the matter had to be adjourned due to time constraint. On the return date, being 15th May, 2000, the learned Senior Advocate continued with his address. But on that day he told the Court that he was relying on Order 8 Rule 12 (1) and (2) of the Rules of this Court. He went further to say that there is no need for this application and in fact applied to withdraw it. Professor Osipitan did not oppose that application but emphasised that all the submissions made by Chief Olanipekun, SAN on 3/5/2000 should be disregarded by the Court. In view of this position taken by the two Counsels (sic: counsel) I will disregard all the submissions made by Chief Olanipekun, SAN on 3/5/2000 and restrict my ruling to the submissions made on 15/5/2000. All the submissions made on 3/5/2000 in respect of prayers 1 and 2 are accordingly disregarded and also the said

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prayers are struck out…

By Order 8 Rule 12 of the then Federal High Court (Civil Procedure) Rules, 1999 the party affected by the ex-parte order will have to bring an application for its discharge or variation. As it is now, there cannot be said to be an application for the discharge, the prayers for discharge in the motion of 5/4/2000 and the submissions made thereon having been withdrawn by the learned Senior Advocate and struck out by this Court in this ruling.”

(See page 66 lines 1 17, lines 32 36 and page 67 lines 1 – 2 of the record).

For ease of reference, prayers 1 and 2 referred to above and reproduced earlier in this judgment, were for:

1. An extension of time within which to apply to discharge the interlocutory orders of the Court made on 23/3/2000 on Ex-parte Motion.
2. A discharge of the 6 (six) orders made on 23/3/2000 on Ex-parte Motion.

Prayers 1 and 2 having been withdrawn and struck out, as rightly observed by learned counsel for the appellants, there was no decision by the learned trial Judge in respect of the discharge of the interim ex-parte orders, that could form the basis of an appeal

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to the lower Court. Since those prayers and the submissions thereon had been withdrawn and struck out, any views expressed by the learned trial Judge thereafter as to whether or not the orders made had lapsed automatically by effluxion of time, were made obiter. In other words, the views expressed did not form the ratio decidendi of the decision appealed against. The Court only rendered its decision in respect of the subsisting prayers 3 5. It is settled law that an obiter dictum cannot form the basis of a ground of appeal. See: U.T.C. Nig. Ltd. Vs Pamotei (1989) 2 NWLR (Pt.1031 244; Olufeagba Vs Abdur-Raheem (2009) 18 NWLR (Pt.1173) 384 @ 426 E; K.R.K. Holdings Nig. Ltd. Vs First Bank of Nig. Ltd. & Anor. (2017) 3 NWLR (Pt.1552) 326.

Ground 1 of the Notice of Appeal to the Court of Appeal dated 27/7/2000 at page 71 of the record, without its particulars, reads:

“The learned trial Judge erred in law and came to a wrong decision in failing to set aside the interim orders made by him on 23/3/2000 under and by virtue of the provisions of Order 9 Rules 12 (1) and (2) of the Federal High Court (Civil Procedure) Rules 2000.”

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The application to set aside or discharge the interim orders had been withdrawn. It is therefore quite obvious that there was no subsisting prayer before the Court in respect of those orders. The ground of appeal and the issue formulated therefrom before the lower Court were therefore incompetent. In so far as the issue did not arise from the ruling appealed against, the Court below erred in making a finding in respect thereof. I therefore resolve this issue in the appellants’ favour.

Issue 2

Whether the lower Court was right to have struck out the Originating Summons on the ground that it was improperly constituted

The issues raised by the appellants in this regard are in respect of the striking out of the Originating Summons on the following grounds:

a. That the subject matter of the suit is contentious and the suit ought to have been commenced by way of a writ of summons and pleadings.

b. That the originating summons was defective on the ground that it was not signed by the Presiding Judge or Registrar of the Court.

c. That there were anomalies in the name of the 3rd appellant as stated in the originating summons vis a vis the

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name contained in the notice of appointment of receiver.

It is contended on behalf of the appellants that at the stage at which the respondents counsel moved the Court to set aside the originating summons, he had not filed a counter affidavit to challenge any of the averments therein and therefore the averments in support of the originating summons were unchallenged.

Learned counsel submitted that there was also nothing to show that the documents exhibited to the originating summons would be incapable of resolving any conflict that might arise. He submitted that there was no basis for the finding that there was a likelihood of hostilities in the proceedings. He relied on the principle of law that averments in an affidavit which are not challenged are deemed admitted, as enunciated in several cases such as: Lawson-Jack Vs S.P.D.C. (Nig.) Ltd. (2002) 13 NWLR (Pt.783) 180 @ 197 C; A.G. Anambra State Vs Okeke (2002) 12 NWLR (Pt.782) 575 602 603 G A; Ajomale Vs Yaduat (No.2) (1991) 5 NWLR (Pt.191) 266 282 283 A A; Yar’Adua Vs Yandoma (2014) 11 12 MJSC 131 @ 179 G.

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He submitted that the learned trial Judge rightly held that the issue in contention is the interpretation of the documents attached to the originating summons and the provisions of the Companies and Allied Matters Act, 1990 as regards receivership. He asserted that originating summons procedure is the most appropriate mode of commencement of the action. He referred to: Makeris Co. Ltd. Vs Access Bank (Nig.) Plc. (2002) 7 NWLR (Pt.766) 447 @ 469 C G. He submitted further that in any event, the Court ought to have ordered the parties to file pleadings rather than strike out the suit. He referred to: Adeyelu II Vs Ajagungbade (2007) 14 NWLR (Pt.1053) 1; National Bank of Nigeria Vs Alakija (1978) 9 10 SC 59.

On the non-signing of the originating summons by the presiding Judge or registrar, he submitted that the finding of the learned trial Judge that the process was endorsed by the registrar and that the endorsement was sufficient in the absence of any provision for signature in the Forms, was not appealed against. He submitted that Ground 3 of the Notice of Appeal, which complained of the failure of the trial Court to strike out the originating summons for

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non-compliance with Order 7 of the Federal High Court (Civil Procedure) Rules, was a generalised complaint and not specifically related to the sufficiency or otherwise of the endorsement of the summons by the registrar, as found by the learned trial Judge. He submitted that in the absence of a specific ground of appeal addressing the issue, the finding of the trial Court ought not to have been disturbed by the lower Court.

Relying on Order 3 Rule 1 of the FHC (CP) Rules 2000 and the authorities of Famfa Oil Ltd. Vs A.G. Federation (2003) 18 NWLR (Pt.852) 453 @ 467 and Saude Vs Abdullahi (1989) 4 NWLR (Pt.116) 382, he submitted that even if it were conceded that the Presiding Judge or Registrar did not sign or endorse the originating summons, the failure is a mere procedural/administrative irregularity attributable to the officials of the trial Court, for which the appellants ought not to be penalised unless it is shown that the error occasioned a miscarriage of justice. He submitted that there was nothing before the Court to suggest that the respondent had suffered a miscarriage of justice. He submitted that the appellants had done all that was required

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of them by filing the originating summons and that it is the duty of the Court Registry to ensure that the process is duly signed/endorsed by the appropriate officer.

On the alleged anomalies in the name of the 3rd appellant, learned counsel submitted that the respondent was not misled as to his identity, as he failed to join issues on the matter in his affidavit. He submitted further that the lower Court disregarded the provisions of Order 27 Rule 1 of the FHC (CP) Rules, which empowers the Court to amend a process in order to bring all the issues in controversy before the Court.

Alternatively, he submitted that the difference, if any, between the name of the 3rd appellant as it appears on the originating summons and as it appears on the Notice of Appointment of Receiver, is a misnomer capable of being rectified through amendment at any stage of the proceedings before judgment and even at this apex Court. He referred to: Kode Vs Yussuf (2001) 4 NWLR (Pt.703) 392 415 A – B; Osasona Vs Ajayi (2004) 14 NWLR (Pt.894) 527 @ 543 544 B B. He submitted that since the suit was still at the interlocutory stage, the possibility of

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an amendment remained open.

He also argued that there was no ground of appeal relating to uncertainty or confusion on the appointment of the Receiver/Manager and therefore the finding of the lower Court in this regard goes to no issue. He submitted that the Court had no jurisdiction to decide on an issue not properly raised before it. He relied on: Idiok Vs The State (2008) 6 MJSC 36; Oshodi Vs Eyifunmi (2000) 13 NWLR (Pt.684) 298; Omnia Nig. Ltd. Vs Dyk Trade Ltd. (2007) ALL FWLR (Pt.394) 201.

In response, learned counsel for the respondent submitted that the lower Court was right in holding that the suit was wrongly commenced by originating summons. He submitted that it is the plaintiff’s claim that determines the jurisdiction of the Court and that a perusal of the affidavit in support of the originating summons shows that it contains hostile facts. He referred to pages 120 of the record as well as paragraphs 6,7,8,9,10,13,14,15,17,19,20 and 22 of the affidavit in support of the motion filed on 5/4/2000 for the discharge of the interim ex-parte orders and other reliefs at pages 23 25 of the record. He also referred to paragraphs

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11,12,13,14 and 15 of the further affidavit deposed to by the respondent on 20/4/2000 at pages 39 41 of the record. He submitted that a juxtaposition of the respondent’s averments with the averments in the affidavit in support of the originating summons shows that there are several areas of dispute or contest between the parties.

He submitted that the respondent’s averments were not challenged or controverted and are therefore deemed admitted. He submitted that it was immaterial that the respondent had not filed a counter affidavit at the time the issue of the competence of the suit was raised. Relying on Okwueze Vs Ejiofor (2000) 15 NWLR (Pt.690) 389 @ 409, he submitted that if the respondent had filed a counter affidavit, it would have amounted to a waiver. He argued that notwithstanding this fact, there was ample evidence before the Court from the averments in support of the motion challenging the Court’s jurisdiction to entertain the suit, showing anomalies and inconsistencies in the appellants’ case.

Relying on the authority of NDIC Vs CBN & Anor. (2002) 7 NWLR (Pt.766) 272 @ 296, he submitted that the Court must consider all

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materials properly placed before it in determining whether it has jurisdiction and that an objection to jurisdiction could be taken on the basis of the statement of claim, evidence received or by a motion supported by affidavit giving the facts upon which reliance is placed. In other words, that a determination as to whether the Court has jurisdiction or not depends on the materials available at the time the issue is raised. See also:Arjay Ltd. Vs A.M.S. Ltd. (2003) 7 NWLR (Pt.820) 577 @ 601; Nnonye Vs Anyichie (2005) 2 NWLR (Pt.910) 623 @ 647 648.

He submitted further, that even in the absence of a counter affidavit, the Court has a duty to examine the claim and determine whether the facts upon which the claim is based create a likelihood for disputation of the facts. He referred to:Ossai Vs Wakwah (2006) ALL FWLR (Pt.303) 239 @ 255; Intercontinental Bank Ltd. Vs Brifina (2012) 13 NWLR (Pt.1316) 1 @ 15.

He submitted that the issue as to whether or not originating summons procedure should be used is an issue of fair hearing. He referred to Adebayo Vs A.G. Ogun State (2008) 2 3 SC (Pt. II) 50 @ 61; Ossai Vs Wakwah (supra) @ 262.

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On whether the lower Court ought to have converted the originating summons to a writ of summons and ordered pleadings, he submitted that the Court had a discretion in the matter, which it exercised judicially and judiciously having regard to the unique circumstances of the case. He submitted that the fact that another Court, if faced with the same situation might have exercised its discretion differently does not make the exercise of discretion wrong. He relied on: Metal Const. (W.A.) Ltd. Vs Migliore (1990) 1 NWLR (Pt.126) 299 @ 312 314.

On the non-signing or endorsement of the originating summons by the presiding Judge or Registrar of Court, learned counsel argued that having regard to the provisions of Order 7 Rule 8 of the Rules, the signature of the Judge in chambers is a condition precedent to the valid issuance of the originating summons. He contended that the failure to comply with the provision means that the suit is not initiated by due process of law, which is one of the factors set out in Madukolu Vs Nkemdilim (1962) 1 ALL NLR 587 @ 595, which must exist before a Court can assume jurisdiction to entertain a suit. Relying on

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Kida Vs Ogunmola (2006) All FWLR (Pt.327) 402 @ 412 413; (2006) 13 NWLR (Pt.997) 377 @ 394, he submitted that failure to comply with Order 7 Rule 8 of the Rules renders the originating summons incompetent and that the lower Court was right in striking it out on the basis of a fundamental defect.

In response to the appellants’ contention that the lower Court determined an issue not properly raised before it, he drew the Court’s attention to grounds 2, 3, 4, 5 and 6 of the respondent’s notice of appeal to the lower Court and Issues 2 and 3 of the appellant’s brief predicated thereon (pages 94 98 of the record). He also referred to his Reply brief at pages 130 132 of the record. He submitted that the issue of the appointment of the Receiver was properly submitted to the lower Court for adjudication.

On the issue of the name of the 3rd appellant being a misnomer, learned counsel submitted that the discrepancy between his name as it appears on the originating summons and as it appears on the notice of appointment as receiver, is fundamental. He submitted that the Court has the power to suo motu examine the claim of the appellants

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as presented and raise and act on any defect therein whether or not the respondent filed a counter affidavit or made it an issue before the Court. He referred to: Intercontinental Bank Vs Brifina (supra). He contended that the suggestion by learned counsel for the appellants that the Court could order an amendment amounts to an admission against interest, as it amounts to an acknowledgment that there is a discrepancy which requires a remedy. He referred to: Odutola Vs Papersack Ltd. (2006) 18 NWLR (Pt.1012) 470 @ 494; Ipinlaiye II Vs Olukotun (1996) 6 NWLR (Pt.453) 140 @ 165. He submitted that the lower Court correctly interpreted the case of Esenowo Vs Ukpong (1999) 6 NWLR (Pt.608) 611 @ 617 to the effect that the discrepancy was not a mere misnomer but a fundamental defect. He submitted that this is more so in the peculiar circumstances of this case where the interim orders were granted by the trial Court in favour of the same party to whom the discrepancy relates.

In his reply brief, learned counsel for the appellants submitted that since the respondent’s counsel has admitted that the issue as to the anomaly in the name of the 3rd appellant was raised

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suo motu by the lower Court, its decision on the issue ought to be set aside on the basis of lack of fair hearing, since the appellants were not afforded the opportunity of being heard on the issue.

In light of the submissions made in respect of this issue, I have examined the record with a fine tooth comb in order to ascertain what were the issues before the lower Court based on the notice of appeal to that Court dated 27/7/2000 but filed on 3/8/2000.

Grounds 2, 3, 4, 5 and 6 of the notice of appeal are as follows:

Ground 2

The trial Judge misdirected himself in law by holding that originating summons is proper and appropriate for initiating the type of proceedings before him.

When

i. The proceedings are hostile.

ii. His ruling will deny the appellant his right to fair hearing.

iii. The rules of Court prohibit the commencement of the said type of proceedings through the use of originating summons.

Ground 3

The trial Judge misdirected himself in law in his failure and refusal to strike out the originating summons when it was clear that the said originating summons was not issued in accordance with the provisions

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of Order 7 of the Federal High Court (Civil Procedure) Rules 2003.

Ground 4

The trial Judge misdirected himself in law by holding that the 2nd plaintiff/respondent, MR. SIMEON FADEYIBI is one and the same person with MR. SIMEON OLOLADE FADEYIBI.

When

i. No explanation was offered to reconcile the two sets of names by the 2nd respondent.

ii. No affidavit was sworn to by the 2nd plaintiff/respondent on this vital issue.

iii. It is not an issue or matter of which this Court can take judicial notice.

iv. The 2nd plaintiff was not even present in Court throughout.

Ground 5

The learned trial Judge erred in law by holding that the action is properly constituted

When

i. The 2nd and 3rd plaintiffs/respondents are asking for declarations or specific reliefs against the 14 plaintiff/respondent.

ii. The rules of Court forbid plaintiff from suing another plaintiff or asking for reliefs against same.

iii. The 2nd plaintiff/respondent is not suing as a Receiver of the 1st plaintiff/respondent and/or it is not endorsed against his name that he is suing as such.

Ground 6

The learned trial Judge

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misdirected himself in law by holding that the joinder of the 1st plaintiff in this action is a misnomer

When

i. He has not struck out the name of the 1st plaintiff.

ii. The action cannot stand in the absence of the 1st plaintiff.

iii. 2nd plaintiff is not suing as the Receiver of the 1st plaintiff.

iv. Action has not been commenced in compliance with the provisions of the CAMA (Companies and Allied Matters Act).

From these grounds of appeal, the appellant (now respondent) distilled Issues 2 and 3, to wit:

2. Whether or not the learned trial Judge properly held that the originating summons was properly issued in the circumstances of this case. (Grounds 2 and 3)
3. Whether the Court was right to have held that the case was properly constituted. (Grounds 4, 5 and 6).

Arguments in respect of Issue 2 covered the hostile nature of the proceedings and the non-signing of the originating summons by the presiding Judge or Court registrar. Arguments on Issue 3 covered the right of the receiver/manager to sue in his own name without the leave of Court, the proper constitution of the parties particularly as regards the 1st and

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3rd appellants and the discrepancy between the name of the 3rd appellant as endorsed on the originating summons and as contained in the notice of appointment of receiver.

I have carefully perused the ruling of the trial Court delivered on 27/7/2003 and I find that all these issues were argued before the Court and it made findings on them, which were rightly made the subject of grounds 2 6 of the notice of appeal. It is therefore not correct, as contended by learned counsel for the appellants, that the lower Court raised the issue of the discrepancy in the name of the 3rd appellant suo motu.

However, I do agree with learned counsel for the appellants that there was no appeal against the specific finding of the learned trial Judge at page 68 of the record that the originating summons was duly endorsed by the Court registrar. Ground 3 of the Notice of Appeal did not address the issue. There was therefore no basis for the issue of compliance with Order 7 being raised again before the lower Court.

It is relevant to note that the striking out of the originating summons was not based solely on the fact that the proceedings were hostile and

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ought to have been commenced by way of writ of summons and pleadings. Indeed, on that issue, all that the Court rightly observed was that the appellants ought to have approached the Court by way of writ of summons to enable the parties thrash out their positions unhindered.

Although the respondent did not file a counter affidavit to the originating summons, he raised the issue of the competence of the originating summons procedure by his motion on notice dated 5/4/2000. I have read paragraphs 6, 7, 8, 9, 10, 13, 14, 15, 17, 19, 20 and 22 of the affidavits in support of the application. Some of the issues raised therein are:

i. That the claim was premature as the loan obtained by the 1st appellant had not matured. It was due in the year 2003.

ii. That there is no valid debenture existing in respect of the transaction.

iii. That the 3rd appellant’s appointment was based on an invalid debenture.

iv. That there is no contract between the 2nd appellant and the respondent in his personal capacity.

v. That the respondent is not a party to the deed of debenture sought to be enforced.

vi. That there is no evidence of default on the

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part of the 1st appellant.

It is settled law that the originating summons procedure is used to determine questions of construction arising under a deed, will or other written instrument or for the interpretation of statutes. The procedure is used where the facts are not in dispute or where it is unlikely that the facts would be in dispute. Evidence is usually documentary and there is unlikely to be any dispute as to their existence. It is an expedited mode of hearing where the plaintiff merely seeks a declaration of his rights. See: Famfa Oil Ltd. Vs A.G. Federation (2003) 18 NWLR (Pt.852) 453 at 467; Inakoju Vs Adeleke (2007) 4 NWLR (Pt.1025) 423; Adeyelu II vs Oyewunmi & Ors. (2007) 14 NWLR (Pt.1053) 1; National Bank of Nig. & Anor. Vs Alakija & Anor. (1978) LPELR-1949 (SC) at 19 – 20 E -C.

In order to determine whether the proceedings were likely to be hostile or not, I agree with learned counsel for the respondent that the Court was entitled to consider the materials before it at the time the issue was raised. Having considered the averments in the affidavit in support of the motion dated 5/4/2000 and juxtaposing same with the

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questions raised by the appellants in the originating summons and the reliefs sought, I am of the view that the Court came to the correct conclusion that there were significant disputes on the facts and the suit ought to have been commenced by writ of summons and the filing of pleadings. However, as observed earlier, this was not the basis for the striking out of the originating summons.

In the course of the lead judgment, delivered by Muntaka-Coomassie, JCA (as he then was and now of blessed memory), several other defects were identified in the originating summons, which were found to be fundamental.

Two of the defects, which the lower Court found to be fundamental were the discrepancies in the name of the 3rd appellant and the institution of the suit in his personal capacity without leave of Court. The 3rd appellants name as it appears on the originating summons is MR. SIMEON FADEYIBI while the name of the Receiver/Manager as contained in the Deed of Appointment of Receiver/Manager annexed to the summons is MR. SIMEON OLOLADE FADEYIBI. Could this be a mere misnomer, as held by the trial Court and as contended by the appellants I think not.

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This Court stressed the importance of the order in which names are written in a professional capacity, in the case of: Esenowo Vs Ukpong (1999) 6 NWLR (Pt.608) 611 AT 617 E G. In that case, the appellant, a medical doctor, was the Medical Director in charge of Memorial Specialist Clinic, Uyo. One Mr. Itrechio, a staff of the 2nd respondent, Mobil Producing Nigeria, submitted a bill issued by the appellant for reimbursement. He stated the name of the appellant as Dr. E.J. Esenowo. The 1st respondent, also a medical doctor, was an employee of the 2nd respondent. He was alleged to have falsely and maliciously written and published a libellous memo to one Moses I. Itam, whose duties included reimbursement of medical fees to the 2nd respondent’s employees, stating that Dr. E.J. Esonowo is not registered with the Nigerian Medical Council and therefore the bill could not be reimbursed. At the trial Court, the appellant’s claim for libel succeeded. The judgment was reversed on appeal to the Court of Appeal. On further appeal to this Court, His Lordship, Belgore, JSC at page 617 E G (supra), in affirming the judgment of the lower Court and

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holding that the alleged libellous statement was justified, having regard to the entry in the register of the Nigerian Medical Council, had this to say:

“There is a world of difference between “J.E. Esenowo” and “EJ. Esenowo” for the purpose of registering a name in a professional register sanctioned by law. It allows for crooks and quacks alike to infiltrate into the profession if at random, a person can rearrange his initials or order in which his names are written. Exhibit H written by the first respondent queried the medical bills brought by PW6 as Exhibit E at page 92 (i.e. register of medical and dental practitioners for 1980) contained an entry thus:

“Esenowo, Johnson Esenowo”

The surname is Esenowo, the first and middle names being “Johnson” and “Esenowo” respectively. This will be rendered into “Dr. J.E. Esenowo” not “Dr. SJ. Esenowo” that the appellant in his pleading and evidence clearly claimed to be the correct name. First respondent stated clearly that “E.J. Esenowo” was not in Exhibit E, and that is very true.”

In the absence of any averment or documentary evidence explaining the discrepancy between the two names, the Court

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was right to hold that the discrepancy is a fundamental defect and not a mere misnomer, For instance, where a father and son bear the same names and/or initials, the only means of differentiating between them is by an additional name or a middle name or by affixing “Jnr.”, meaning Junior after the names. It is not for the Court to speculate, without evidence, that SIMEON FADEYIBI and SIMEON OLOLADE FADEYIBI are one and the same person.

The next issue is whether, even if the receiver/manager’s name was correctly stated on the originating summons, he ought to have instituted the action in his own name. The position of the law is that generally, a receiver/manager cannot maintain an action in his own name to recover goods or money to the possession of which he is entitled by virtue of his appointment as a receiver. In the case of Intercontractors Nig. Ltd. Vs U.A.C. (1988) 2 NWLR (Pt. 76) 303, this Court held that a receiver/manager has the power to institute and defend actions in the name of the debenture holder or the company entitled to the goods involved in his receivership but that it is essential for the receiver/manager to seek the prior leave of the

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Court to do so, as the Court has a discretion to exercise as to whether the action is in the interest of the estate and for the benefit of all concerned. This principle was also applied in Intercontractors (Nig) Ltd. Vs N.P.F.M.B. (1988) 2 NWLR (Pt. 76) 208 and Unibiz (Nig) Ltd Vs CBCL (Nig). Ltd. (2003) 6 NWLR (Pt. 816) 402.

However, in a recent decision of this Court in Onafowokan Vs Wema Bank Plc (2011) 12 NWLR (Pt. 1260) 24, the Intercontractor and Unibiz cases were distinguished on the ground that the provisions of Section 393 and Schedule 11 of CAMA, 1990 were not considered in those cases. The Court held that having regard to Section 393 and the Schedule to CAMA, 1990, a receiver/manager suing in the name of the company did not require leave to sue. The Court however reiterated the requirement for the receiver to sue in the company’s name.

In the instant case, the 3rd appellant instituted the action in his personal capacity without any indication that he was suing as receiver of the 1st appellant. Moreover, the suit was instituted against the respondent in his personal capacity, notwithstanding that, as the Managing Director/Chief Executive

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Officer of the 1st appellant, he was the agent of a disclosed principal i.e. the 1st appellant. I am of the considered opinion that the lower Court was right when it held that there were fundamental defects in the constitution of the suit and consequently struck out the originating summons.

This issue is accordingly resolved against the appellants.

In conclusion, notwithstanding the resolution of the first issue in the appellant’s favour, having held that the originating summons was rightly struck out for being defective, the appeal fails and is hereby dismissed. The parties shall bear their respective costs in the appeal.

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SC.205/2004