BONIFACE EBERE OKEZIE & ORS. v. CENTRAL BANK OF NIGERIA & ORS. (2012)

BONIFACE EBERE OKEZIE & ORS. v. CENTRAL BANK OF NIGERIA & ORS.

(2012)LCN/5104(CA)

In The Court of Appeal of Nigeria

On Thursday, the 19th day of January, 2012

CA/L/693/2010

RATIO

THE ISSUE OF THE PROCEDURE TO BE FOLLOWED IN COMMENCING AN ACTION BY ORIGINATING SUMMONS

The issue of the procedure to be followed in commencing an action by originating summons is well settled by case law. See FAMFA OIL LIMITED v. ATTORNEY-GENERAL OF THE FEDERATION & ANOR (2003) 18 NWLR (Pt.852) 453 per Belgore J.S.C (as he then was) at page 467; OSSAI V. WAKWAH (2006) 4 NWLR (Pt.969) 208; AJAGUNGBADE v. ADEYELU II (2001) 16 NWLR (Pt.738) 126; NBN V. ALAKIJA (1978) 9 – 10 S.C. 59. PAM v. MOHAMMED (2008) Vol. 40 1 WRN 67 at 147. In OBASANYA V. BABAFEMI (2000) 15 NWLR (Pt. 689) 1 this court held at page 17 thus which is quite opposite to the present case: – “Before a proceeding can be commenced by originating summons, the construction of a written law or instrument made there under or deed or will or contract or other document must be in issue. It means that in any of such cases certain questions must have arisen for determination with reference to such document and it is these questions and the accompanying reliefs or prayers that embody the issues for determination in the action. PER. KUMAI BAYANG AKAAHS J.C.A.

JUSTICES

KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

1. BONIFACE EBERE OKEZIE
2. RASHEED OLATUNDU
3. BASIL UBA
4. WAHEED SONIBARE Appellant(s)

AND

1. CENTRAL BANK OF NIGERIA
2. NIGERIA DEPOSIT INSURANCE CORPORATION
3. ATTORNEY-GENERAL OF THE FEDERATION
4. MALLAM LAMIDO SANUSI
5. FUNKE OSIBODU
(For Herself and as representing the persons the 4th Respondent appointed to the Board of the 7th
Respondent
6. THE ECONOMIC & FINANCIAL CRIMES COMMISSION
7. UNION BANK PLC Respondent(s)

KUMAI BAYANG AKAAHS J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court Lagos Division delivered on 16/6/2009 striking out the originating summons of the applicants for lacking questions for determination in Suit No.FHC/L/CS/1188/09. The appellants were the applicants in the said originating summons. The facts leading to this appeal may be briefly stated as follows:
On 14/8/2009, the 4th respondent in purported exercise of his powers as Governor of the Central Bank of Nigeria issued an order removing all the executive directors of Union Bank Plc (joined in the suit as 7th respondent) and appointed the 5th Respondents in their place. He also injected the sum of N120 billion into the bank which he accused of being weak, undercapitalized and for insolvent and therefore an unreliable and unsafe financial institution. He also instigated the 6th respondent to arrest and detain some customers of the bank and they were made to repay the loans granted to them by the bank. The 4th respondent also threatened to turn over the bank to the Nigeria Deposit Insurance Corporation (a statutory receiver and liquidator) also joined in the suit as 2nd respondent. The applicants being shareholders of the bank filed the originating summons by way of derivative action seeking leave of the court to challenge the action of the respondents on behalf of the bank and sought declaratory and restraining orders and also claimed N100 billion damages for injury to the goodwill and business of the 7th respondent both present and future arising from the unlawful conduct of the 1st, 5th and 6th respondents.
The 1st, 2nd, 4th, 5th and 7th respondents filed preliminary objection to the summons. On 12/1/2010 the applicants filed a motion praying the court to strike out or dismiss the preliminary objections of the respondents and enter judgment in favour of the applicants. On 16/3/2010 the court raised an issue on non statement of questions for construction or determination in the body of the originating summons which the respondents had already raised in their preliminary objections. Learned counsel for the parties addressed on the issue and on 16/6/2010 the court struck out the originating summons as incompetent because there were no questions for determination.
The applicants were dissatisfied with the decision and appealed against it in their Notice of Appeal dated 17/6/2010 containing two grounds of appeal. The 1st respondent also cross appealed. The appellants filed Notice of Preliminary objection to the cross-appeal. On 31/5/2011 the 6th respondent’s name was struck off from the appeal at the instance of the appellants.
On 5/12/2011 when the appeal was called, the cross appellant withdrew the cross – appeal. This led to the appellants abandoning ground 2 in the Notice of Appeal and withdrawing the arguments based on issue 2 which were struck out together with the preliminary objection to the cross appeal.
The parties filed briefs of argument with the exception of the 6th respondent even before the 6th respondent’s name was deleted from the appeal. The appellants also filed a reply brief.
In view of the striking out of Ground 2 and the second issue formulated for determination in the appellants’ brief the loan issue for determination in this appeal is:
“whether the lower court was right in its conclusion that the originating summons of the Applicants/appellants was incompetent for not containing questions for construction or determination.”
All the respondents adopted the appellants’ issue for determination. Since learned counsel had withdrawn Ground 2 of the appeal thereby leading to the striking out of the arguments on issue 2, all the arguments by counsel to the respondents on issue 2 are of no relevance to this appeal and they shall at best be ignored.
Learned counsel for the appellants argued that the originating summons followed the form specified in Form 2 of the Companies Proceedings Rules as mandated under Order 2 (2) of the said Rules and since the said Form 2 is an expedited form of originating summons it does not require the formulation of questions for determination. He said that the Companies Proceedings Rules (CPR) are the applicable Rules governing proceedings under the Companies and Allied Matters Act and that the Federal High Court Rules can apply only where the CPR is silent on the matter and cited Order 19 CPR and Order 56 Rule 1, Federal High Court Rules 2009 in support. He further argued by referring to Order 3 Rule 9(1) FHCR that even under the Federal High Court Rules it is not required that every form of originating summons must state or formulate questions for determination. He contended that the learned trial judge sought for and was addressed on the issue to mention Rule 2(2) and Form 2 of the CPR and Form 4 of the FHCR in the Ruling. He therefore submitted that it was a misconception on the learned trial judge’s conclusion that an originating summons which does not contain questions for determination is incompetent. He said the reference made in the Ruling to the Companies Winding Up Rules and other proceedings were absolutely strange to the proceedings before the lower court and urged this court to find and hold that the originating summons filed by the appellants being substantially in the form required by Rule 2(2) CPR is competent and the striking out of the summons was erroneous.
Learned counsel for the respondents submitted that having regard to the circumstances of this case, vis-a-vis the reliefs sought by the appellants, the originating summons filed by the appellants should of necessity contain questions for determination in order to be worthy of adjudication before a court of law. Reproducing Order 3 Rules 7 of the Federal High Court of Civil Procedure) Rules 2009 and the reliefs sought by the appellant it was submitted that in view of the reliefs sought, the lower court had to construe the provision of the Central Bank of Nigeria Act and the Banks and Other Financial Institutions Act to be able to determine whether or not the appellants are entitled to the relief sought. It is learned counsel’s contention that where a case is commenced by originating summons the court is required to answer certain questions formulated by the originating summons) either in the affirmative or otherwise and based on the answer to the question or questions formulated grant or refuse the reliefs claimed. The argument that the originating summons followed the form as specified at Form 2 in the schedule to the Companies Proceedings Rules was debunked when learned counsel argued that since the appellants’ originating summons seeks reliefs in respect of the Central Bank of Nigeria Act and the Banks and Other Financial Institutions Act and not under CAMA the CPR is not applicable. Learned counsel therefore urged this Court to reject the Appellants’ argument that they adopted the Form 2 prescribed in the schedule.
The Companies Proceedings and the Companies Winding Up Rules is the Subsidiary Legislation made pursuant to section 635[1) of the Companies and Allied Matters Act. It is statutory Instrument 14 of 1992. Rule 21 states as follows:-
“21 (1) These Rules shall apply to all proceedings taken out or arising from any provision of any
section of Part A of the Companies and Allied Matters Act.
(2) The forms set out in the Schedule to these Rules and any other form in use in ordinary civil proceedings of the court, where applicable, or any other forms which may from time to time, be made on order of the Chief Judge, may be used.”
Forms 1 and 2 to the Schedule are reproduced as follows:
“FORM 1
IN THE FEDERAL HIGH COURT
DIVISION HOLDEN AT
SUIT NO of 20
IN THE MATTER OF X LIMITED (registered name of the company as it appears in its certificate) FORM 2
Originating Summons
Heading as in Form 1)
Let I….of (address) or, if the respondent is a Company X Limited, whose registered office is situate address) within . . . days on or after service of this Summons on (him or it) inclusive of the day of such service, cause an appearance to be entered for (him or it) to this Summons, which is of (address and description) for an order of (specify the relief sought).
Dated the——–day of———20
This summons was taken out by A. B & Co. of (Address) Solicitor for the Applicant.”
The argument of the appellants is that Form 2 to the Schedule does not require the setting out of question or questions to be determined upon which the reliefs being sought are predicated.
The respondents countered this argument by stating that the recourse to the Companies Proceedings Rules and the adoption of Form 2 to the Schedule is inappropriate having regard to the circumstances of the case and that even if Form 2 of the Companies Proceedings Rules or any other forms have been used, since they are attached to the schedules and therefore incapable of conferring any rights or obligations they should not be adopted in a rigid manner but should be adopted to fit the circumstances of any case under consideration.
The dispute that has arisen is not limited to the operation of the Companies and Allied Matters Act but the action taken by the Governor of the Central Bank in sacking the entire Board of Directors of Union Bank Plc. and replacing it with his own nominees and taking other measures to undermine the power of the share holders such as threatening to place the bank under liquidation and using unorthodox means to recover loan facilities granted to the bank’s customers and injecting funds into the bank. Some of the reliefs which the appellants sought in the originating summons are contained in paragraphs 2, 3, 4, 6, 10, 11 and 15 of the process. They are as follows:
“2. A Declaration that the appointment of the 4th respondent as the Governor of Central Bank of Nigeria is contrary to the Central Bank of Nigeria Act (and/or inimical to the interests of the 7th respondent), null and void.
3. A Declaration that the purported sacking by the 4th respondent of all the directors of the 7th respondent and replacement of them with the 5th respondents is unlawful being in breach of the Banks and other Financial Institutions Act and/or the Central Bank of Nigeria Act, ultra vires the 4th respondent, null and void.
4. A Declaration that the 4th respondent’s exposure of the affairs of the 7th respondent to adverse publicity in the local and foreign media with the consequence or possibility of attracting against the 7th respondent the prejudicial and false conclusions of the ignorant and uninformed is unethical, unprofessional and a breach of the duty of confidentiality which the 1st and 4th respondents owe to the 7th respondent under the Central Bank of Nigeria Act and/or the Banks and other Financial Institutions Act.
6. An order restraining the 5th respondents from further parading themselves or in any other officers of the 7th respondent.
10. An order restraining the 4th respondent from turning over or purporting to turn over the control and management of the 7th respondent to the 2nd respondent from taking over or purporting to take over the control and management of the 7th respondent.
11. An order restraining the respondents from discussing, negotiating or entering into an arrangement with any person, institution or authority, including themselves and the Federal Government of Nigeria to dispose of any share of the 7th respondent or howsoever to transfer the 7th respondent or its control and management or any asset of the 7th respondent to any person, institution or authority, including any of themselves or the Federal Government of Nigeria.
15. The sum of N100 billion being damages for injury to the goodwill and business of the 7th respondent both present and future arising from the unlawful conduct of the 1st, 5th and 6th respondents.”
Learned counsel to the respondent have rightly argued that the originating summon filed by the appellants should of necessity contain questions for determination in order to be worthy of adjudication before a court of law. Order 3 Rule 7 of the Federal High Court (Civil Procedure) Rules 2009 deals with this issue. It provides as follows: –
“Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.”
The issue of the procedure to be followed in commencing an action by originating summons is well settled by case law. See FAMFA OIL LIMITED v. ATTORNEY-GENERAL OF THE FEDERATION & ANOR (2003) 18 NWLR (Pt.852) 453 per Belgore J.S.C (as he then was) at page 467; OSSAI V. WAKWAH (2006) 4 NWLR (Pt.969) 208; AJAGUNGBADE v. ADEYELU II (2001) 16 NWLR (Pt.738) 126; NBN V. ALAKIJA (1978) 9 – 10 S.C. 59. PAM v. MOHAMMED (2008) Vol. 40 1 WRN 67 at 147. In OBASANYA V. BABAFEMI (2000) 15 NWLR (Pt. 689) 1 this court held at page 17 thus which is quite opposite to the present case: –
“Before a proceeding can be commenced by originating summons, the construction of a written law or instrument made there under or deed or will or contract or other document must be in issue. It means that in any of such cases certain questions must have arisen for determination with reference to such document and it is these questions and the accompanying reliefs or prayers that embody the issues for determination in the action. This is not the situation with the plaintiffs case. There are no questions of construction of a written law posed for determination before the lower court upon any deed, will, contract or other document or written law whatsoever. Plaintiff simply brought before the court prayers or reliefs. I do not think there are materials placed before the learned trial court for her to determine the sustainability of the reliefs being sought. On their premise alone the lower court ought to have struck out the plaintiffs originating motion,
Since what has taken place in the present case was the same thing that was done in OBASANYA V. BABAFEMI supra, the striking out of the originating summons was in order. The appeal lacks merit and it is accordingly dismissed. I make no order on costs.

SAULAWA, J.C.A.: Having read, before now, the briefs of argument of the learned counsel to the respective parties vis-a-vis the record of appeal, as a whole, I am in a total consonance with the reasoning and conclusion reached in the lead judgment just delivered by my learned brother Hon. Justice Akaahs JCA, to the effect that the instant appeal is devoid of merits.
I adopt the said reasoning and conclusion as mine, and accordingly dismiss the appeal. The ruling of the Federal High Court Lagos Judicial Division, delivered on 16/6/2009 in question, striking out the originating summons of the Appellants for lacking questions for determination in suit No. FHC/L/CS/1188/09, is hereby affirmed by me. There shall be no order as to costs.

PEMU, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my brother Kumai Bayang Akaahs J.C.A. I agree with his reasoning. However I shall add, that assuming one takes the view or argument that the Originating Summons followed the form specified in Form 2 in the Schedule to the Companies Proceedings, Rules, it is necessary to view the provisions of the Companies Proceedings and the Company Winding Up Rules which is the subsidiary legislation made pursuant to Section 635(1) of the Companies and Allied Matters Act. Rule 21 of the Statutory Instrument 14 of 1992 has this to say:
21(1) These Rules shall apply to all proceedings taken out or arising from any provisions of any Section of Part A of the Companies and Allied Matters Act.
(2) The forms set out in the Schedule to these Rules and any other form in use in ordinary civil proceedings of the Court, where applicable, or any other forms which may from time to time be made on order of the Chief Judge may be used,
A careful perusal of Subsection (2) connotes that the provision is conjunctive in nature. In other words, the forms set out in the Schedule to the Rules must be used in conjunction with any other form in use in ordinary civil proceedings of the Court.
Form 1 relating to the Federal High Court, referred to in the judgment requires that the reliefs sought must be specified.
I dare say that reliefs sought cannot be in vacuum. It has to be predicated on issues that had been determined by a Court of competent jurisdiction.
The gravamen of the case, is regarding action taken by the Governor of the Central Bank, in sacking the entire Board of Director of Union Bank Plc., and replacing them with his stooges.
Reliefs 1, 3 and 4 of the Originating Summons are declaratory in nature.
Reliefs 5, 10, 11 are for restraining orders, while Reliefs 15 is a claim for damages.
A cursory look at the declaratory reliefs sought, depict clearly that there is the need for the Court to interpret the construction of the following enactments- viz
In Relief (1) – The Central Bank of Nigeria Act.
In Relief (3) – The Banks and other Financial Institutions Act.
Same applies to relief 4.
It was therefore pertinent and indeed incumbent for the Appellant to provide questions for determination, and his failing to do so, necessitated the Court to strike out the Originating Summons as lacking in merit, which was rightly done.
The appeal is devoid of merit and the Originating Summons is incompetent and I subscribe to the consequential order made that there shall be no order as to costs.