ASSET MANAGEMENT NOMINEES LIMITED & ANOR v. FORTE OIL PLC & ORS (2017)

ASSET MANAGEMENT NOMINEES LIMITED & ANOR v. FORTE OIL PLC & ORS

(2017)LCN/10176(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of July, 2017

CA/L/1135/2015

RATIO

COURT OF CO-ORDINATE JURISDICTION: THE POSITION OF THE LAW ON THE NEED FOR CAUTION IN MAKING ORDERS IN MATTERS THAT ARE PENDING IN OTHER COURTS OF CO-ORDINATE JURISDICTION

On the need for caution in making orders in matters that are pending in other Courts of co-ordinate jurisdiction, the Supreme Court, per the noble Lord, Pats Acholonu, JSC in Nigeria Intercontinental Merchant Bank Ltd v. Union Bank of Nigeria Ltd (supra) also reported in (2004) LPELR-2003(SC), (2004) 18 NSCQR 134, put it graphically:

“The theory of justice to which we adhere rests a priori on the premise that there must be certainty and the parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. of co-ordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter involving the same parties i.e. each relying on his own whims, caprices, prejudices and sometimes a vaunting ego, makes nonsense and mockery of the law.”

In his contributory opinion, Ejiwunmi, JSC said:

“Where a Court was clearly aware that another Court of coordinate jurisdiction is seized of a case with the same parties and the same subject matter before it as found in this appeal, it is an abuse of process for that Court to continue with the hearing of the case and proceed to make orders as was done in this case.”

See also Dumez Nigeria Plc v. U.B.A. Plc (2006) 14 NWLR (Pt. 1000) 515, (2006) LPELR-7635(CA) where this Court, per Rhodes-Vivour, JCA (as he then was) cautioned:

“Once a Judge is aware of a case in his, or another jurisdiction on the same subject matter as the one before him such situation calls for caution. Nowadays this is common and Judges should not allow it to occur. If they do and proceed with the trial as if all is well, there is a real likelihood of two conflicting decisions at the end of trial which would end up polluting the streams of justice which ought to be kept pure at all times.” The learned trial Judge acted in line with standard judicial practice by recognizing the need to exercise caution in the grant of reliefs v-xvii. This caution exercised by the learned trial Judge demonstrated no miscarriage of justice meted out on the Appellants. Issues 3 and 4 are therefore resolved against the Appellants. PER ONYEKACHI AJA OTISI, J.C.A.

LOCUS STANDI: MEANING OF LOCUS STANDI; THE EFFECT OF THE LACK OF LOCUS STANDI TO INSTITUTE AN ACTION

Locus standi is the legal capacity of a party to commence or institute proceedings in Court of law; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669 at 684-685; Odeneye v. Efunga (1990) 11-12 S.C. 122. To contend that a party has no locus standi is to contend that he has no right to appear and be heard in a matter; A.G. Kaduna State v. Hassan (1985) LPELR-617(SC). The issue of locus standi is not determined by the success or the merits of the case. What is important is that the claimant has sufficient interest in or legal rights in the subject matter. It is in the claim of the claimant in the originating processes that must reveal the personal interest of the claimant to institute the action. The originating process must reveal that the civil rights and obligations of the claimant are being violated or in danger of being infringed or violated by the act of the defendant. Where no such personal interest is disclosed, the claimant would have no locus standi to institute the action; Yesufu v. Governor Edo State (2001) 6 S.C. 56; Oloriode v. Oyebi (1984) LPELR-2591(SC); A-G, Adamawa State v. A-G, Federation (2005) 12 S.C. (Pt. 11) 133; UBA Plc v. BTL Industries Ltd (2006) 12 S.C. 6. Where a party has no locus standi to institute an action, the Court would have no jurisdiction to hear him and the suit or where there are more than one party, the name of the party without locus standi must be struck out; Basinco Motors Ltd v. Woermann-Line & Anor (2009) 13 NWLR (Pt. 1157) 149 S.C.; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669. Opobiyi v. Muniru (2011) LPELR-8232(SC). PER ONYEKACHI AJA OTISI, J.C.A.

COMPANY LAW: WHETHER THE LEGAL PERSONALITY OF A SUBSIDIARY COMPANY IS DISTINCT FROM THAT OF ITS PARENT COMPANY

In the recent case of Bulet Int’l (Nig.) Ltd & Anor v. Olaniyi & Anor (2017) LPELR-42475(SC), the Apex Court of the land, per Kekere-Ekun, JSC, espoused once more the status of a parent company and its subsidiary thus:

“The concept of corporate personality was established a long time ago in the case of Salomon v. Salomon & Company Ltd. (1897) AC 22 to the effect that a company is a legal entity distinct from its members. It has a distinct legal personality and is capable of suing and being sued in its corporate name. A company is a different person altogether from the subscribers to the memorandum and is neither an agent nor a trustee for them. It also has the capacity to enter into any agreement in its corporate name. See: Marina Nominees Ltd v. F.B.I.R. (1986) NWLR (Pt. 20) 48; Afolabi & Ors v. Western Steel Works Ltd & Ors (2012) 17 NWLR (Pt. 1329) 286. See also Section 37 & 38 of the CAMA. A subsidiary company has its own separate legal personality. In general, the acts of a subsidiary company cannot be imputed to the parent company and vice versa. See Union Beverages Ltd. v. Pepsi Cola International Ltd. & Ors. (supra). The lower Court was right when it held that the liquidation of Commerce Bank Plc could not and did not affect transactions validly entered into by the 2nd respondent.”

In his contributory judgment therein, Eko, JSC said:

“In any case, the 2nd Respondent, C.B. Ventures Ltd, upon its incorporation, had acquired a legal personality that made it distinct from its parent company, Commerce Bank Plc. That is the undeniable corporate personality recognized in law since the decision in SALOMON v. SALOMON LTD (1897) AC 22… to impute the life and transactions of the 2nd Respondent to the fortunes of its parent company cannot sail. See: UNION BEVERAGES LTD. v. PEPSI COLA INTERNATIONAL LTD. & ORS. (1994) 4 NWLR (Pt. 330) 1 AT 6.” PER ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

1. ASSET MANAGEMENT NOMINEES LIMITED
2. SKYE BANK PLC
(Formerly Mainstreet Bank Limited) Appellant(s)

AND

1. FORTE OIL PLC
(Formerly African Petroleum Plc)
2. ZENON PETROLEUM AND GAS LIMITED
3. MR. FEMI OTEDOLA Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Lagos Division in Suit No: FHC/L/CS/1082/2014, Coram T. J. Tsoho, J., delivered on June 30, 2015.

?The suit leading to this appeal was instituted by the Appellants by Originating Summons together with the supporting affidavit, exhibits and a written address. In response, the Respondents filed a notice of preliminary objection to the jurisdiction of the Court and also a counter affidavit with written address to the Originating Summons. The lower Court consolidated the hearing and determination of both the Preliminary Objection and the Originating Summons, and delivered judgment thereon on 30/6/2015. The Preliminary Objection of the Respondents succeeded in part, while some of the questions formulated for determination in the Originating Summons as well as some of the reliefs sought therein were resolved in favour of the Appellants. The Appellants, being aggrieved by the said judgment filed two Notices of Appeal on 31/8/2015 and on 28/9/2015. The Appellants abandoned the earlier Notice of Appeal filed on

31/8/2015 and relied on the Notice of Appeal filed on 28/9/2015 upon eight grounds of appeal; pages 263?272 of the Record of Appeal.

The parties exchanged Briefs of Argument, including a Reply Brief, which were all adopted on 11/5/2017 by Dr. Charles Mekwunye for the Appellants and by Victor Ogude, Esq. for the Respondents. Dr. Mekwunye for the Appellants urged the Court to allow the appeal, while for the Respondent, Mr. Ogude abandoned arguments in support of a preliminary objection to the competence of the notice of appeal as regards the 2nd Appellant, contained in paragraphs 4.01 – 4.07 of the Respondents’ Brief and urged the Court to dismiss the appeal. The arguments in support of the said Preliminary Objection, being withdrawn, is hereby struck out.

The Appellants formulated five issues for determination as follows:
i. Whether the lower Court did not fail in its duty as a Court when it refused to answer questions 6-11 in the affirmative and grant reliefs v-xvii in favour of the Appellants given that the issues therein which were submitted to the lower Court and as canvassed by the Appellants were neither challenged nor refuted by

the Respondents? (distilled from ground 3.1 and ground 3.2).
ii. Whether the lower Court did not fail in its duty as a Court when it refused to answer questions 7 and 8 in the originating summons in favour of the Appellants and grant reliefs v-xvii notwithstanding that after the Federal Government sold their shares through B.P.E. to Sadiq Petroleum Nigeria limited in 2000, the Federal Government had no interest to pass onto the 2nd and 3rd Respondents and therefore that the 2nd and 3rd Respondents were not the strategic investors and cannot validly assume the management of the 1st Respondent (distilled from ground 3.3).
iii. Whether the lower Court did not deny the Appellant the justice when it refused to make any pronouncement on the Appellants’ reliefs v-vii sought for in their originating summons after having declared that the Appellants rightfully acquired 30% majority shares/interest and are strategic investors and/or managers of the 1st Respondent thereby rendering its judgment inconclusive and inchoate? (distilled from grounds 3.4, 3.5 and 3.8).
iv. Whether the lower Court did not make contradictory and conflicting findings in his

judgment and also made findings on issues which were not before it thereby denying justice to the Appellants? (distilled from ground 3.6).
v. Whether the lower Court was right when it partly upheld the objection of the Respondents in this suit by striking out the name of the 2nd Appellant as a party to this suit on the ground of lack of locus standi? (distilled from ground 3.7).

For the Respondents, the following Issues were formulated for determination:
(1) Whether the issues and reliefs sought for by the Appellants in their originating summons at the lower Court were unchallenged by the Respondents.
(2) Whether having regards to the evidence placed before the lower Court and the state of the law the findings of facts and/or conclusions reached by the lower Court were right and/or justifiable.
(3) Whether the Appellants right of fair hearing was breached and/or otherwise impaired by the lower Court.
?(4) Whether the decision of the lower Court partly upholding the Respondents notice of preliminary objection and striking out the name of the 2nd Appellant from the suit for want of locus standi was proper in the circumstances.

I must observe that while the Appellants were quite verbose in formulation of the issues for determination, the Respondents on the other hand, sought to be concise. Nevertheless, I shall adopt and consider the issues as formulated by the Appellants in the following tranches: Issue 1 and 2 as formulated by respective parties together; Issues 3 and 4 as formulated by the Appellants together with Issue 3 as formulated by the Respondents; and Issue 5 as formulated by the Appellants together with Issue 4 as distilled by the Respondents.

Issues 1 and 2
It was submitted for the Appellants that a Court must rely on any lawful evidence that had neither been challenged nor controverted for its decision. This being because any unchallenged evidence is deemed admitted in law; relying on Military Gov. of Lagos State & Ors v. Adeyiga & Ors (2012) LPELR-7836. The cases of Nwankwo v. Yar’adua (2010) LPELR-2109 also reported in (2010) 12 NWLR (Pt. 1209) 518; Sifax Nigeria Ltd & Ors v. Migfo Nigeria Ltd & Anor (2015) LPELR-24655 were relied on to submit that a party who fails to challenge, respond and or refute the issues

submitted to a Court for determination, would be deemed to have conceded to the issues. It was contended that the lower Court failed to follow the above principles of law when, despite its findings at pages 246-247 of the Record of Appeal, it declined to make any pronouncement on questions 6-11 submitted to it for adjudication in the Originating Summons, on issues relating to how the Appellants acquired the strategic investors right in the 1st Respondent and/or as between the Appellants and the 2nd?3rd Respondents, who was the sole strategic investor of the 1st Respondent; and failed to grant reliefs v-xvii therein in favour of the Appellants. That when a Court fails to pronounce upon issues submitted to it for consideration and determination, it amounts to a failure to perform a statutory duty; relying on Ovunwo & Anor v. Woko (2011) LPELR-2841(SC). It was submitted that this failure amounted a miscarriage of justice against the Appellants and a breach of the lower Court’s statutory duties. It was further submitted that the affidavit evidence in support of the Originating Summons was not challenged or controverted as it related to who is the sole

strategic investor of the 1st Respondent. In the absence of any evidence on how the 2nd?3rd Respondents became strategic managers of the 1st Respondent, the trial court ought to have relied solely on the unchallenged evidence of the Appellants. It was submitted that the basis for refusal by the lower court to make the pronouncements was unfounded and not supported by evidence. That the outcome of a pending litigation and intervention of Securities and Exchange Commission (S.E.C.) and or any Federal Government agency had nothing to do with the right sought for by the Appellants herein. That the finding of fact by a Court on any issue must be based on the material facts placed before it or issues joined by the parties; relying onJulius Berger Nigeria Ltd. v. Ede (2002) LPELR-5779(CA), (2003) 8 NWLR (Pt. 823) 526. There was no material evidence placed before the lower Court or issues joined by the parties to show that there was ever any pending litigation over the Federal Government’s involvement in the acquisitions of shares of the 1st Respondent or that the intervention of S.E.C. has led to doubts over who is the strategic core investor of the 1st

Respondent which warranted the lower Court to refuse to make any pronouncements on the said questions 6-11. That the intervention of S.E.C. had nothing to do with the privatization exercise of 2000 which is the root of title of Sadiq Petroleum Ltd through which the Appellants acquired their interest, but on the public offering of the 1st Respondent in 2008. The Court was urged to resolve this issue in favour of the Appellants and hold that they were entitled to the grant of Reliefs v-xvii as sought in the Originating Summons.

?In reply, the Respondents submitted that they did not at any time admit or leave the Appellants’ claims unchallenged. The response of the Respondents had been that the right of strategic investor and or right to manage the 1st Respondent was no longer available to the Appellants on the footing that the 1st Respondent no longer owned or had any shares or majority shares in the 1st Respondent given their confiscation and subsequent sale to the Respondents and that the 2nd Appellant lacked the locus standi to present the claims comprised in the originations summons. Paragraphs 3-8 of the Respondents’ counter affidavit and annexed

Exhibits FO3-FO5 were relied on. The Appellants in paragraphs 8(c) and 12(a) of the Appellants’ reply to the counter affidavit of the Respondents did not fault the contents of Exhibits FO3-FO5 but merely stated that the confiscation of their shares was unlawful and that the said unlawful confiscation was the subject of two pending civil suits at the Federal High Court. That in admitting that they had filed civil suits to challenge the confiscation of their shares and the intervention by regulatory authorities in the shareholding structure and management of the 1st Respondent, the Appellants had conceded the point that as at 2014 when their suit was instituted at the lower Court, they no longer enjoyed the status of strategic investors or holders of the majority shares in the 1st Respondent to enable them exercise management powers. It was further submitted that the admitted civil suits challenging the confiscation of the shares left the lower Court with no option other than to tread cautiously. The legality of the intervention of S.E.C. and AMCON in the 1st Respondent’s management and shareholding rights in the 1st Respondent being subjudice, the lower Court

was duty bound to have refrained from making any adverse pronouncements thereon. The decision of the lower Court in this regard was not an abdication of judicial duty but was justified in order to avoid any judicial confusion that could arise from conflicting judgments. The Court was urged to resolve this issue in favour of the Respondents.

?In the Reply Brief, the Appellants argued that the contentions of the Respondents were untenable. There were two different categories of shares involved. There were shares acquired through the privatization exercise of the Federal Government through BPE in 2000 (Exhibit 1 attached to the supporting affidavit) and shares acquired under public offer of the 1st Respondent in 2008. The Appellants’ case at the lower Court and in this appeal was about unlawful denial of their rights acquired following their acquisition of the privatization shares in 2000 as shown in Exhibits 1 and 2. That it was the Respondents who introduced the public offer shares and the rights attaching thereto. The lower Court made a finding on these categories of shares at pages 222-223 of the Record of Appeal, which was not appealed against. The

counter affidavit did not answer to the depositions in the affidavit in support of the originating summons in respect of the rights pertaining to the privatization shares lawfully acquired by the Appellants but dealt only with public offer shares whose acquisition on the directive of S.E.C. is being challenged in other Courts. That the only litigation in respect of the privatization shares is before this Court. The Respondents did not respond to the depositions of the Appellants and the trial Court ought to have acted thereon. Balonwu v. Obi (2007) LPELR-4255(CA), (2007) 5 NWLR (Pt. 1028) 488, inter alia, was relied on. The Court was urged to discountenance the submissions on Exhibits FO3-FO5, which the Appellants were alleged not to have faulted in their Reply Affidavit of 20/4/2015. It was submitted that this was a fresh issue that did not arise from the decision of the lower Court or from the Notice of Appeal. This Court cannot determine the point freshly made on appeal without leave of Court, relying on Unity Bank Plc v. Bouari (2008) All FWLR (Pt. 416) 1825 at 1843; Emenike v. P.D.P. (2012) LPELR-7802(SC). It was further submitted, assuming without

conceding, that the Appellants specifically denied the Respondents’ claim on Exhibit FO3-FO5 in paragraphs 7-12 of the Appellants’ Reply Affidavit at pages 174-175 of the Record of Appeal. The Court was urged to hold that Exhibits FO3-FO5 were irrelevant to the privatization shares in issue herein.

?On Issue 2, the Appellants argued that the failure of the lower Court to make any pronouncements in respect of questions 7 and 8 in the Originating Summons in favour of the Appellants notwithstanding that the 2nd and 3rd Respondents were not able to contradict or controvert the unchallenged evidence that they were not the strategic investors and cannot validly assume management of the 1st Respondent has led to a grave miscarriage of justice. That the lower Court ought to have acted on the uncontroverted evidence of the Appellants to find in their favour. The cases of Military Gov. of Lagos State & Ors v. Adeyiga & Ors (supra); Nwankwo v. Yar’adua (supra) and Sifax Nigeria Ltd & Ors v. Migfo Nigeria Ltd & Anor (supra) were relied on. It was contended that upon the acquisition of 30% shares of the 1st Respondent by Sadiq Petroleum Nigeria Ltd

from the Bureau of Public Enterprise (B.P.E.) in the year 2000 during privatization exercise, the 2nd and 3rd Respondents could not have acquired any other legitimate interest in the 1st Respondent either from the Nigerian National Petroleum Corporation (N.N.P.C.) or any other agency of the Federal Government as they alleged given that there were no shares of the 1st Respondent left to be transferred and or sold to any other body. The only shares of the 1st Respondent left and which was divested by the Federal Government was the 30% purchased by the Appellants from Sadiq Petroleum in November, 2005 as shown by Exhibit 2 attached to the affidavit in support. That it follows that neither N.N.P.C. nor B.P.E. nor the Federal Government had any other shares of the 1st Respondent to transfer to and or sell to the 2nd and 3rd Respondents. Neither the Federal Government through B.P.E. or through any other agency could still have retained any title to the 30% shares of the 1st Respondent. It was submitted that any claim to have acquired any interest from the Federal Government through B.P.E. or N.N.P.C. or any of its agencies was illegal and contrary to the maxim nemo

dat quod non habet. Reliance was placed on Gbadamosi & Ors. v. Akinloye & Ors (2013) LPELR-20937(SC); Omiyale v Macaulay (2009) LPELR-2640(SC). It was further submitted, assuming without conceding that the 2nd and 3rd Respondents acquired any interest in the 1st Respondent through the Federal Government, the interest of the Appellants, which was acquired first from the same source ought to prevail being first in time; relying on Rabiu v. Adebajo (2012) 15 NWLR (Pt. 1322) 125. The Court was urged to resolve this issue in favour of the Appellants.

?In reply, the Respondents referred to the affidavit evidence and submitted that whilst the Respondents did not dispute the fact that the 1st Appellant purchased 30% shares from Sadiq Petroleum Nigeria Ltd in 2005, the Respondents did dispute the Appellants’ claims which were filed in 2014 requesting the lower Court to make a declaration to the effect that the Appellants still remained Strategic Investors majority shareholders and persons entitled to manage the affairs of the 1st Respondent as at 2014. In view of the Respondents’ concession that the 1st Appellant indeed purchased shares from Sadiq

Petroleum in 2005 at a time when the purchased shares carried the right of Strategic Investor, the lower Court had no difficulty in resolving questions 1-4 and reliefs i-iv in favour of 1st Appellant. Contrary to the Appellants’ assertion that the Federal Government had only 30% shares in the 1st Respondent which was sold on its behalf by the B.P.E., it was submitted that the evidence before the lower Court was that the Federal Government held 40% of the total shareholding of the 1st Respondent totaling 86,400,000 ordinary shares. Out of 40%, the Federal Government divested 30% of its shareholding amounting to 64,800,000 to Sadiq Petroleum Nigeria Ltd which left the Federal Government with 10% of the shares; paragraphs 9-10 of the supporting affidavit of the Originating Summons at page 9 of the Record of Appeal. That it was incorrect to state that the Federal Government had divested all its shareholding and retained nothing to transfer to the Respondents. The evidence before the lower Court was that from 2008 and beyond, the 1st Appellant’s majority shareholding was whittled down by the confiscation of some of its shares by regulatory authorities such as

S.E.C. and AMCON. By this act, the 2nd and 3rd Respondents became majority shareholders of the 1st Respondent. The Appellants who no longer controlled majority shares could only challenge the legality of the actions of S.E.C. and the legitimacy of the shareholding of the 2nd and 3rd Respondents in the 1st Respondent by two subsisting cases: Suit No FHC/L/CS/1534/2010: Afribank Nigeria Plc & 2 Ors v. The Securities and Exchange Commission & Anor and in Suit No. FHC/L/CS/160/13: Forte Oil Plc v. Mainstreet Bank Limited. The learned trial Judge had difficulty in the face of the evidence in declaring the Appellants as sole strategic investors of the 1st Respondent. It was submitted that the lower Court was right to have refrained from making pronouncements on issues pending in other Courts of co-ordinate jurisdiction that may give rise to conflicting judgments. The cases of N.I.M.B. Ltd v. U.B.N. Ltd (2004) 12 NWLR (Pt. 888) 599; Nworgu v. Njoku (2001) 14 NWLR (Pt. 734) 539 at 548 were relied on. The Court was urged to resolve this issue in favour of the Respondents.

?In their Reply Brief, the Appellants submitted that the Respondents cannot give

evidence or be heard now on its brief, instead of a Counter Affidavit, that the remaining 10% of the Federal Government shareholding in the 1st Respondent after it had divested 30% to Sadiq Petroleum (Nigeria) Limited was retained to be transferred to the Respondents; relying on Ogbonnaya v. F.B.N. PLC (2015) LPELR-24731. It was further submitted that whilst it is true and undisputed and as conceded by the Respondents that the 1st Appellant purchased 30% shares of the Federal Government stake in the 1st Respondent, the Respondents failed to acknowledge the fact that the Appellants had also averred that the remaining 10% out of the 40% stake of the Federal Government were offered to the general public and not to the 2nd and 3rd Respondents. The Appellants maintained that the 2nd and 3rd Respondents came to assume the management of the 1st Respondent through the back door and usurped the Appellants’ powers as strategic investors of the 1st Respondent. The 2nd and 3rd Respondents never traced their root of title to the ownership of shares and the management of the 1st Respondent. Given that 30% stake of the Federal Government in the 1st Respondent was acquired

by the Appellants whilst the remaining 10% was offered to the general public, the 2nd and 3rd Respondent acquired nothing from the Federal Government or anything through its agencies; Bureau of Public Enterprise (B.P.E.) or Nigeria National Petroleum Corporation (N.N.P.C.). That the Federal Government of Nigeria cannot give what it does not have, Nemo dot quad non habet. Reliance was placed on Isamotu A. Ashiru v. Adetoun Olukoya (2006) LPELR-SC.356/2001, also reported in (2006) 11 NWLR (Pt. 990) 1; New Resources Int?l Ltd. & Anor v. Ejike Oranusi, Esq. (2010) LPELR-4592(CA); Gadzama v. Rims Merchant Bank Ltd (1997) 4 NWLR (Pt. 498) 234.

The Appellants finally submitted that the finding of facts and conclusions reached by the lower Court were perverse, not based on affidavit evidence before it. That the lower Court contradicted itself and made out cases for the parties which were not submitted to it for consideration. The Court was urged to so hold and to reverse that part of the decision of the lower Court and grant all the reliefs of the Appellants.

?Questions 6-11 formulated for determination in the Originating Summons and reliefs

v-xvii, pages 5-6 of the Record of Appeal, were as follows:
6. WHETHER the right of strategic investor the right to manage the 1st Respondent is intrinsically attached to the 30% shares transferred to the 1st Applicant by Sadiq Petroleum (Nigeria) Limited.
7. WHETHER the Federal Government (though the Bureau of Public Enterprise), having disposed all its interests in 1st Respondent, Forte Oil Plc., (African Petroleum Plc.) thereafter, retains any interest and/or shares that it could subsequently transfer and/or sell to the 2nd and 3rd Respondents.
8. WHETHER the Federal Government (through the Bureau of Public Enterprise) having disposed of its rights to manage the 1st Respondent, Forte Oil Plc. (African Petroleum Plc) by the sale of 30% of its shares and the right of strategic investor to Sadiq Petroleum Nigeria Plc, can take any other part in the management of the 1st Respondent by the issuance of its securities.
9. WHETHER the 2nd and 3rd Respondents, not being strategic investors in Forte Oil Plc. (African Petroleum Plc.), can from 2006, validly assume management (whether partial or full management) of Forte Oil Plc. (African Petroleum

Plc.).
10. WHETHER in the face of obvious lack of any lawful interest in the 1st Respondent, Forte Oil Plc., (African Petroleum Plc.), the 2nd and 3rd Respondents are not meddlesome interlopers in the affairs of the 1st Respondent, Forte Oil Plc.
11. WHETHER the continued usurpation of the management right of the Applicants, the removal of its directors from the Board of the 1st Respondent and the refusal to pay dividend is not a continuing breach of the right of the Applicant.
WHETHER THE APPLICANTS PRAY THIS HONOARABLE COURT AS FOLLOWS:
v. A DECLARATION that the Applicants are the strategic investors and managers of African Petroleum Plc (now Forte Oil Plc).
vi. A DECLARATION that by virtue of their legal status as strategic investors in African Petroleum Plc., (now Forte Oil Plc), the Applicants have the legal rights to manage Forte Oil Plc.
vii. A DECLARATION that the 2nd and 3rd Respondents, not being strategic investors are meddlesome interlopers and therefore have no right whatsoever to assume management of Forte Oil Plc.
?viii. A DECLARATION that the 2nd and 3rd Respondents, not being managers of the 1st Respondent

(African Petroleum Plc., now Forte Oil Plc), cannot lawfully make any decision relating to the management of the company, 1st Respondent.
ix. A DECLARATION that all management decisions made by the 2nd and 3rd Respondents from 2010, in total disregard of and without the consent of the Applicants are null, void and of no effect.
x. A DECLARATION that all allotment of shares and issuance of other securities made by the Respondents pursuant to the management decisions reached by the 2nd and 3rd Respondents after November, 2005 are void and of no effect for having been made without proper authority.
xi. A DECLARATION that the removal of Nebolisa Arah and Osa Osunde, directors representing the Applicants on the Board of the 1st Respondent from the Board of the 1st Respondent sometime in 2010 is unlawful, null and void.
xii. AN ORDER that the 2nd and 3rd Respondent should hand over the management of 1st Respondent (African Petroleum Plc., now Forte Oil Plc.), to the Applicants.
xiii. AN ORDER that the 1st, 2nd and 3rd Respondents should pay to the Applicants all their outstanding dividends from 2008, after they unlawfully assumed management

of the 1st Respondent (Forte Oil Plc.)
xiv. AN ORDER nullifying all management decisions made by the 2nd and 3rd Respondents from 2010, in total disregard of and without the consent of the Applicants.
xv. AN ORDER nullifying all allotment of shares and issuance of other securities made by the Respondents pursuant to management decisions reached by the 2nd and 3rd Respondents after November, 2005.
xvi. AN ORDER nullifying all unlawful issuance of the securities and or shares of the 1st Respondent in favour of the 2nd Respondents.
xvii. AN ORDER that the 2nd and 3rd Respondent should pay the sum of N20,000,000,000.00 (Twenty billion Naira) for the usurpation/unlawful take-over of the management of the 1st Respondent.

The affidavit evidence in support of the Originating Summons, pages 83?85 of the Record of Appeal, was as follows:
I, Tayo Ogunbanjo, Male, Christian, Nigerian Citizen of No. 51/55, Broad Street, Lagos Island, Lagos State, do herein make Oath and states as follows:
1. That I am a Legal Officer in Mainstreet Bank Limited, the 2nd Applicant deposed herein and I also have the authority of the Applicants to

depose to this affidavit.
2. That I know as of fact that the 1st Applicant is a Limited liability company incorporated in accordance with the Companies and Allied Matters Act, Laws of the Federation of Nigeria, 2004 as a special Purpose Vehicle of Afribank Nigeria Plc. (now Mainstreet Bank Limited), having its registered office at No. 94, Broad Street, Lagos Island, Lagos.
3. That I know as of fact that the 2nd Applicant is a Limited Liability Company duly incorporated in accordance with the Companies and Allied Matters Act, Laws of Federation of Nigeria, 2004 and carries on the business of banking with its principal place of business at No. 51/55 Broad Street, Lagos Island, Lagos.
4. That sometime in August, 2011, through the Central Bank of Nigeria intervention in Afribank Nigeria Plc., the 2nd Applicant acquired all the assets and certain liabilities of Afribank Nigeria Plc. (Afribank) and all its subsidiary companies (including Asset Management Nominees Limited), upon the revocation of Afribank’s banking license and now, it is known as Mainstreet Bank Limited.
5. That I know as of fact that the 1st Respondent is a Public Limited

Liability Company Incorporated in accordance with the Companies and Allied Matters Act, Laws of Federation of Nigeria, 2004 and carries on business as an oil producing, servicing distribution and retailing company with its principal place of business at 13, Walter Carrington Crescent, Victoria Island, Lagos State.
6. That I know as a fact that the 1st Respondent was formerly known as African Petroleum Plc and has, sometimes in May, 2012 metamorphosed into what is now known as Forte Oil Plc. (1st Respondent).
7. That I know as of fact that the 2nd Respondent is a Private Limited Liability Company Incorporated in accordance with the Companies and Allied Matters Act, Laws of Federation of Nigeria, 2004 and carries on business as a petroleum marketing company, with its principal place of business at 13b, Walter Carrington Crescent, Victoria Island, Lagos State.
8. That I know as of fact that the 3rd Respondent is the chairman and alter ego of the 2nd Respondent in this suit and resides in Lagos State.
9. That I know as of fact that prior to 1999, the Federal Government of Nigeria had 40% shares of the total shareholding of African Petroleum

Plc. (now Forte oil Plc.), which then amounted to 86,400,000 (Eighty-Six Million, Four hundred thousand) Ordinary shares of 50k (Fifty kobo) each.
10.That I know as of fact that:
a. In 2000, the Federal Government, pursuant to Public Enterprises (Privatization and Commercialization) Act, decided to divest itself of all its interest and/or shareholding in African Petroleum Plc. (Forte Oil Plc.) by transferring 30% of the shares of African Petroleum Plc., held by the Federal Government, then totaling 64,800,000 ordinary shares of 50 kobo each to a strategic investor who would manage and/or assume management of African Petroleum Plc. (Forte Oil Plc.), while the remaining 10% shares were offered to the public.
b. In implementation of its decision as stated above, the Federal Government, through the Bureau of Public Enterprises (the statutory body saddled with the responsibility of disposing government interests in Public Enterprises), entered into, prepared, executed and perfected a Share Sale/Purchase Agreement under seal with Sadiq Petroleum (Nigeria) Limited, dated 17th day of .November, 2000. The Share Sale/Purchase Agreement of 17th November,

2000 is hereto annexed and marked as Exhibit 1.
c. By virtue of the Share Sale/Purchase Agreement between the Bureau of Public Enterprises and Sadiq Petroleum (Nigeria) Limited, Sadiq Petroleum (Nigeria) Limited acquired 30% of the total shares held by the Federal Government in African Petroleum Plc. (Forte Oil Plc.)
d. With the execution of the Share/Purchase Agreement between Bureau of Public Enterprises and Sadiq Petroleum (Nigeria) Limited, Sadiq Petroleum (Nigeria) Limited became the strategic core investor in African Petroleum Plc. (Forte Oil Plc) (refer to the entire Share Sale Purchase Agreement, particularly, paragraphs G, H, & I and Clause 1 of the Agreement).
e. As at the time Sadiq Petroleum (Nigeria) Limited acquired the 30% shares of African Petroleum Plc. (Forte Oil Plc) from the Bureau of Public Enterprises, the Financial Report of African Petroleum Plc. (Forte Oil Plc.) for the year ended 1999, the Information Memorandum and Prospectus through which the sale of the shares were effected did not disclose any debt owed by African Petroleum Plc. (Forte Oil Plc) to the Federal Government and/or any of its agency.
f. In

November 2005, via a Share Purchase Agreement under seal, Sadiq Petroleum (Nigeria) Limited transferred all its shares in African Petroleum Plc. (Forte Oil Plc) together with its rights as Strategic Core Investors in African Petroleum Plc (Forte Oil Plc) and/or the management of African Petroleum Plc. (Forte Oil Plc.) to Afribank Nigeria Plc., through its Special Purpose Vehicle, Asset Management Nominees Limited, the 1st Applicant herein. The Share Purchase Agreement between Sadiq Petroleum (Nigeria) Limited and Asset Management Nominees Limited is hereby annexed and marked as Exhibit 2.
g. Following the Share Purchase Agreement as averred in Paragraph 10 (f) above, the Applicants appointed directors to the Board of the 1st Respondent in their capacity as strategic core investors.
h. Shortly, after Afribank Nigeria Plc, through its Special Purpose Vehicle, Asset Management Nominees Limited had acquired the controlling shares (30% shares) of African Petroleum Plc. (Forte Oil Plc.) and the Strategic Investor’s right, the 2nd Respondent, alleged through the 3rd Respondent that it had acquired the controlling shares in African Petroleum Plc.
i. The

2nd and 3rd Respondents also alleged that the 2nd Respondent had acquired its said shares in African Petroleum from the Federal Government without any written proof of such transaction.
j. The 2nd and 3rd Respondents also alleged that the shares the 2nd Respondent purportedly bought from the Federal Government was a debt of N10,195,000,000.00 owed by Afribank Petroleum Plc, (Forte Oil Plc) to the Federal Government, which debt was converted into shares and thereafter, sold to the 2nd Respondent by the Nigerian National Petroleum Corporation (N.N.P.C.).
k. No resolution was passed between 2000 to 2005 by African Petroleum Plc (Forte Oil Plc) converting any debt owed to the Federal Government into shares whatsoever or at all.
l. On the afore stated basis the 2nd and 3rd Respondents, attempted to take over the management of African Petroleum Plc, from Afribank Nigeria Plc. (and Asset Management Nominees Limited) sometime after November, 2005, as strategic investors and the 1st Applicant and Afribank Nigeria Plc. (now the 2nd Applicant), resisted all the attempts of the 2nd and 3rd Respondents with limited success.
m. However, shortly

thereafter in 2006, the 3rd Respondent used his political muscle and influence within Nigeria to forcefully and unlawfully wrestle and take-over the 1st Respondent from the Applicants, by causing various government bodies (i.e. S.E.C.) to unlawfully intervene in the internal management of the 1st Respondent.
n. Following (m) above, the 1st and 2nd Applicants were compelled to share management of the 1st Respondent with the 2nd and 3rd Respondents by the Applicants and the 2nd and 3rd Respondents appointing members to the Board of the 1st Respondent.
o. In 2010, the 2nd and 3rd Respondents purportedly caused a notice of Board meeting of the 1st Respondent to be issued, dated 24th September, 2010 for a Board meeting which was held on the 27th September, 2010. Whereat, the 2nd and 3rd Respondents purportedly removed Nebolisa Arah and Osa Osunde, who were nominees of the Applicants’ at the Board of the 1st Respondent (pursuant to the Applicants’ at the Board of the 1st Respondent (pursuant to the Applicants’ right as strategic investors) as directors of the 1st Respondent.
p. Therefore on the 27th September, 2010, the 2nd and 3rd Respondents

successfully removed all the nominees of the Applicants on the Board of the 1st Respondent as directors of the 1st Respondent.
q. The Applicants had repeatedly sought to regain their rights of strategic investor but the 3rd Respondent had in equal measure used his wealth and political influence to frustrate the efforts of the Applicants in enjoying their rights.
r. Although the 1st Applicant is a majority shareholder and strategic investor in the 1st Respondent, the 2nd and 3rd Respondents ensured that the Applicants are completely excluded from the management of the company since September, 2010.
s. After acquiring Afribank together with its special purpose vehicle, Asset Management Nominees Limited, in 2011, Mainstreet Bank Limited (2nd Applicant) realized that it is in fact the sole strategic investor in the 1st Respondent and therefore entitled to the sole management of the 1st Respondent, hence this application.
t. The Applicants want this Honourable Court to determine who, as between the Applicants and the 2nd and 3rd Respondents is the strategic investors (managers) of the 1st Respondent.
u. Upon perusing to files, the

Applicants observed that the 1st Respondent had not remitted and/or paid to it any dividend since 2008.
v. The illegal management of the 1st Respondent had created and allotted several shares to its directors without, the consent and/or knowledge of the Applicants, the majority shareholders of the company as the Applicants, had not been given any notice of the meeting of the 1st Respondent since 2010.
w. Since 2010, the Applicants have not received any notice of meeting of either the 1st Respondent’s Board meeting or the General meeting of the 1st Respondent and has thereby been deprived of their rights to attend the meetings of the 1st Respondent by the 2nd and 3rd Respondent.
11. That I know as of fact that since 2008, the 1st Respondent has been declaring dividends and has just declared dividend for the 2013 financial year but has not paid any dividend to the Applicants.
12. I was further informed by Dr. Charles D. Mekwunye of counsel, to the Applicants and I verily believe him that:
a. The N.N.P.C. had no right to transfer any Government shares in any company to the 2nd and 3rd Respondents or anybody whatsoever.
b. The

purported transaction between the N.N.P.C. and the 2nd and 3rd Respondents are illegal, null and void and of no effect.
c. The Bureau of Public Enterprise is the only legally empowered statutory body that can validly transfer government interest/shareholding in any company or enterprise.
d. N.N.P.C. cannot give what it does not have.
e. N.N.P.C.’s unlawful transfer of the Securities of the 1st Respondent is in breach of the rights of the 1st and 2nd Applicants and that this breach has continued to this date.

In reaction to the Originating Summons, the Respondent’s deposed to a counter affidavit, pages 83 ? of the Record of Appeal, as follows:
I, AKINLEYE OLAGBENDE, Male, Christian of 13, Walter Carrington Crescent, Victoria Island, Lagos do hereby make oath and state as follows.
1. That I am the General Counsel in the employment of the 1st Defendant herein that by virtue of my schedule of duties I am fully conversant with the facts of this case and I have the consent and authority of the Defendants herein to depose to this affidavit on their joint behalf.
2. That I have seen the affidavit in support of the

originating summons issued by the Plaintiffs herein and the attached exhibits.
3. That the depositions contained in the aforesaid supporting affidavit are false and calculated to mislead this Honourable Court.
4. That the 2nd Plaintiff is a separate and distinct entity from the 1st plaintiff.
5. That title and/or ownership of the shares which form the subject matter of this suit was never at anytime vested in the 2nd plaintiff.
6. That the aforesaid shares were not included as a part of the assets transferred to the 2nd plaintiff by the Asset Management Corporation of Nigeria.
7. That the 1st plaintiff’s interest in the shares have since been taken over by the Asset Management Corporation of Nigeria and transferred to a third party ZKL Nominees Limited. Attached hereto and marked exhibits FO-FO3 are copies of correspondence exchanged between the 1st Defendant, AMCON and S.E.C.
8. That the aforesaid shares totaling 127,942,154 units having been taken over or divested from the 1st plaintiff, the 1st plaintiff no longer retains any right or interest in the said shares. Attached hereto and marked exhibit FO4-FO5 are copies of the

resolution of the 1st Defendant dated the 28th March, 2014 and a certified true copy of the particulars of shareholders of the 1st Defendant.
9. That I was informed by Babanjide Kolu, SAN of Counsel on the 25th of November 2014 at about 2.00pm via a telephone conversation of the following facts which I verily believe to be true:
(a) That any allegation of fact questioning the transfer of shares by the N.N.P.C. or the B.P.C. cannot be determined in the absence of those parties.
(b)That this action is improperly constituted for want of proper parties.
(c) That the Plaintiff cannot enjoy any rights or benefits from shares which have been divested from them.

The Appellants filed a Reply to the Counter Affidavit of the Respondents to the Originating summons in which they denied the depositions of the Respondents.

?A careful study of the affidavit evidence of the parties will indeed reveal that there are two different categories of shares involved here. There was a privatization exercise conducted in 2000 by B.P.E. through which Sadiq Petroleum (Nigeria) Ltd purchased 64,800,000 shares of 50k each of African Petroleum Plc., the 1st

Respondent, on 17/11/2000, Exhibit 1 annexed to the supporting affidavit to the Originating Summons at pages 14?30 of the Record of Appeal. By the terms of the said Purchase Agreement, the Federal Government of Nigeria through NNPC as beneficial owner of 86,400,000 ordinary shares of 50k each being 40% of the nominal share capital of African Petroleum Plc., sold 30% of its shareholding, being 64,800,000 shares, to Sadiq Petroleum (Nigeria) Ltd as a strategic investor. As strategic investor, the purchaser Sadiq Petroleum (Nigeria) Ltd was to manage the privatized company, African Petroleum Plc. The shares were sold by B.P.E. on behalf of the Federal Government to the said Sadiq Petroleum (Nigeria) Ltd with full guarantee and free from all claims or encumbrances and with all the rights attached to the shares. The said Sadiq Petroleum (Nigeria) Ltd subsequently sold the said 64,800,000 shares to the 1st Appellant by a Share Purchase Agreement made on 28/11/2005 and annexed to the supporting affidavit of the Originating Summons as Exhibit 2, pages 33-38 of the Record of Appeal.

?The Appellants sought to acquire further interest in the 1st Respondent’s

shares totaling 127,942,154 units through a public offer of the 1st Respondent’s shares in 2008. The acquisition of the shares through this medium by the Appellants however was steeped in murky waters. S.E.C. alleged there were irregularities in the acquisition of the said shares and as sanction, confiscated them. The said shares were subsequently transferred to ZRL Nominees Ltd through Asset. Management Corporation of Nigeria (AMCON). The legality of the action of S.E.C. was deposed by the Appellants in their Reply to the Counter Affidavit of the Respondents, to be subject matter of pending litigation at the material time in two actions: Suit No. FHC/L/CS/160/2013: Forte Oil Plc v. Mainstreet Bank Ltd. and, Suit No. FHC/L/CS/1534/2010: Afribank Nigeria Plc & 2 Ors. v. The Securities and Exchange Commission. See paragraphs 7 and 8 of the Reply to the counter affidavit, pages 173-174 of the Record of Appeal. See also Exhibits FO1-FO3 attached to the Respondents’ counter affidavit to the Originating Summons and reproduced at pages 86-94 of the Record of Appeal. It is the position of the Appellants that the said shares acquired during the public offer of 2008

had no relevance to the suit leading to this appeal. In contention rather, were the shares acquired during the privatization exercise in 2000 through BPE.

The lower Court at page 238 of the Record of Appeal, acknowledged that the action was premised on the Share Purchase Agreement, dated 28/11/2005, Exhibit 2 annexed to supporting affidavit to the Originating Summons, by which the 1st Appellant acquired all the shares of African Petroleum Plc from Sadiq Petroleum (Nigeria) Ltd. These represent the shares purchased through BPE by a Share Purchase Agreement, Exhibit 1, the Share Purchase Agreement between BPE and the 1st Appellant, annexed to supporting affidavit to the Originating Summons. In its analysis of the terms of Exhibit 1, the lower Court found as follows, page 222-223 of the Record of Appeal:
“The effect of this is that the purchaser of A.P. shares in Exh. 2 would as per the terms of Exh. 1 inherit the status of a strategic investor.
?Apart from that, Clauses 1 and 2 in Exhibit 2 to the Originating Summons show that the negotiated consideration for the purchase of the shares was the total sum of N7b (Seven Billion Naira) and part

payment of N4b (Four Billion) was made and receipt of same was acknowledged by the seller. The acknowledgment of part-payment by the seller goes to show that the shares purportedly confiscated by S.E.C., which are referred to in Exhibits FO1 and FO2 attached to the affidavit in support of N.P.O. are not likely to be those acquired by the 1st Respondent from Sadiq Petroleum vide Exh. 2. This is because the basis for the purported confiscation of the shares as stated in Exhs. FO1 and FO2 was non-payment for allotted shares. Furthermore, the volume of shares and the total sum involved in Exh. 2 to Originating do not tally with those stated in Exhibits F01 and F02 to counter-affidavit.”

There was no appeal/cross appeal on this finding. The lower Court at page 247 of the Record of Appeal further made the following findings:
?”From the evidence placed before this Court, it is obvious that the 1st Applicant’s acquisition of 30% Shares of African Petroleum from Sadiq Petroleum [Nig. Ltd.] vide Exhibit 2 is not disputed. What has brought about a dispute between the parties is the 2008 sale of AP shares. Prior to that time, the acquisition by the 1st

Applicant of rights as the core or strategic investor vide Exh. 2 was not in doubt. It is in the event of the 2008 transaction that the dispute between the 1st Applicant and the 2nd and 3rd Respondents arose as to who is the core investor in the 1st Respondent’s Company.
While the Respondents have relied on Exhibits FO2 and FO3 annexed to their Notice of Preliminary Objection to assert that the shares in A.P. [now Forte Oil Plc] were transferred to them and they have control over the Company, it does not seem right to this Court that it could be presumed that the 1st Applicant became totally divested of its initial legitimate shareholding in the 1st Respondent by virtue of the later share transaction. Even if it could be argued that the divestment was by operation of law and in exercise of the regulatory powers of S.E.C., the 1st Applicant could not have been deprived of compensation.”

?From these findings, on which there was no appeal, the purchase or acquisition by the 1st Applicant of 30% shares of African Petroleum Plc, now Forte Oil Plc., the 1st Respondent, from Sadiq Petroleum (Nig.) Ltd. by virtue of Exhibit 2 was not in dispute. Apart from

the said 30% of the shares sold to Sadiq Petroleum Nigeria Ltd, which was subsequently acquired by the Appellants, the Federal Government still retained 10% of its interests in 1st Respondent. By virtue of the said 64,800,000 ordinary shares which represented 30% of the shares and by the terms of Exhibits 1 and 2, the Appellants become the strategic investor and in management of 1st Respondent; until the public offer of the 1st Respondent’s shares in 2008. The said public offer significantly changed the coloration of the status of the Appellants.

?The Appellants sought to acquire further interest in the 1st Respondent’s shares totaling 127,942,154 units through a public offer of the 1st Respondent’s shares in 2008. But, there were alleged ethical and other issues involving the purchase of these shares of the 1st Respondent by the Appellants through Fidelity Finance Ltd. whose Managing Director was Mr. Osa Osunde, who was also the Chairman of Afribank Plc and Vice Chairman of the 1st Respondent (African Petroleum Plc) at the material time. S.E.C. blocked the sale by confiscation of the shares. Following this sanction by S.E.C., the shares involved

amounting to 127,924,854 units were transferred to ZRL Nominees. In other words, while as at 2005 the Appellants had 64,800,000 share units which represented 30% of the shares at the time. But, by the public offer of 2008 when they sought to acquire further units, they lost a total of 127,924,854 share units. The said 127,924,854 share units were now acquired by the 2nd and 3rd Respondents. The affidavit evidence revealed that the confiscation of the said share units by S.E.C. is subject matter of litigation. The Appellants in their Reply Affidavit to the Counter Affidavit of the Respondents deposed in paragraphs 7(d) and 8(b), (c) that directives and consequent confiscation by S.E.C. was challenged by the Appellants in Suit No. FHC/L/CS/1534/2010: Afribank Nigeria Plc & 2 Ors v. The Securities and Exchange Commission & Anor. and in Suit No. FHC/L/CS/160/13: Forte Oil Plc v. Mainstreet Bank Limited; pages 173?174 of the Record of Appeal. At the material time, these suits were pending.

Issues 3 and 4 submitted for the determination of the lower Court, page 231 of the Record of Appeal, were:
3. Whether the 2nd and 3rd Respondents, not

being strategic investors in Forte Oil Plc (African Petroleum Plc) can validly assume management of Forte Oil Plc (African Petroleum Plc).
4. Whether the continued usurpation of the management right of the Applicants, the removal of its directors from the Board of the 1st Respondent and the refusal to pay dividend is not a continuing breach of the right of the Applicant.

The learned trial Judge noted, at page 246 of the Record of Appeal, that the Respondents did not address these issues. For the Appellants, their unchallenged position as strategic investor ought to have provided the impetus for the resolutions of questions 7 and 8 in their favour, being:
7. WHETHER the Federal government (through the Bureau of Public Enterprise), having disposed all its interests in 1st Respondent, Forte Oil Plc., (African Petroleum Plc.) thereafter, retains any interest and/or shares that it could subsequently transfer and/or sell to the 2nd and 3rd Respondents.
8. WHETHER the Federal Government (through the Bureau of Public Enterprise) having disposed of its rights to manage the 1st Respondent, Forte Oil Plc. (African Petroleum Plc) by the sale of 30%

of its shares and the right of strategic investor to Sadiq Petroleum Nigeria Plc, can take any other part in the management of the 1st Respondent by the issuance of its securities.

The difficulty expressed by the learned trial Judge in pronouncing upon the rights of the Appellants in this circumstance was evident. He said, page 248 of the record of Appeal:
“It is my respectful view that the interest acquired by the 1st Applicant vide Exh. 2 to the Originating Summons cannot be wished away. However, in the circumstances that the 2nd and 3rd Respondents have basis to claim having acquired all the shares in AP [now Forte Oil], it is not certain whose interest in the 1st Respondent is superior. There is evidence before this Court that the acquisition of shares of the 1st Respondent by the 2nd and 3rd Respondents is subject of pending litigation. It is therefore my humble view that until that issue is resolved, this Court cannot safely decide who is sole strategic investor in the 1st Respondent.”

?The learned trial Judge then held regarding questions 6-11 submitted for adjudication in the Originating Summons, page 250 of the Record of Appeal:

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“2. Question 6 attracts reservation and caution. The right to manage the 1st Respondent is rendered subject to intervening event[s]. For instance, in the con of this case, due to the purported intervention by the S.E.C., it is not presently certain who is sole strategic investor as between the 1st Applicant and the 2nd Respondent.
3. There is also reservation about Questions 7 & 8. This is because the involvement of the Federal Government [via the BPE] is allegedly by intervention through operation of law. It is an issue to be decided in pending litigation.
4. Question 9 requires caution. It can be answered when the strategic investor in the 1st Respondent clearly emerges.
5. Questions 10 & 11 are issues that are still being contested in pending litigation and cannot be properly granted now.”

I do not see any reason to fault these conclusions. As already noted, the Appellants deposed in paragraphs 7(d) and 8(b), (c) of the Reply Affidavit to the Counter affidavit of the Respondents at 172-176 of the Record of Appeal:
That contrary to paragraphs 7 & 8 of the Respondents’ Counter Affidavit, I know as a fact that:

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7 d. the unlawful confiscation of the 2nd Applicant’s shares via the underwriting agreement during the public offer of 2008 is now subject of the suit before this Honourable Court in Suit No: – FHC/L/CS/160/13 between Forte Oil Plc v. Mainstreet Bank Limited which is a distinct and separate matter from the shares subject matter of this suit acquired during the privatization programme in 2000;
8 b. SEC has no right to confiscate shares which has been legitimately acquired and paid for by the 2nd Applicant via the said underwriting agreement in respect of the 2008 public offer;
c. furthermore, the SEC directives were promptly challenged by the 2nd Applicant via Suit No. FHC/L/CS/1534/2010 between AFRIBANK NIGERIA PLC & 2 ORS v. THE SECURITIES AND EXCHANGE COMMISSION & ANOR;

?The trial Court, having been notified of litigation in respect of some of the issues submitted to it for adjudication pending in other Courts of coordinate jurisdiction could not have ignored the fact. A Court cannot simply continue with and determine a suit when there are earlier pending matters or applications in another Court or before it touching on related

issues; Abia State Co-Operative Federation Ltd v. Imo State Co-Operative Produce Marketing Association Ltd (2006) LPELR-5182(CA), (2007) 4 NWLR (Pt. 1024) 270. The trial Court therefore rightly took cognizance of these matters brought to its attention.

?The Appellants contended very strongly that the shares obtained by privatization are the subject matter of the present action and not the shares obtained through the public offer of 2008, which are in dispute in the pending matters. That may well be the case. However, it cannot be denied that there was a correlation. The Appellants were earlier or first in time in acquiring 64,800,000 share units and becoming the sole strategic investor in the 1st Respondent in 2005. This was not in dispute. By 2008, there was a public offer, in which the Appellants also participated. But, a dispute arose over the status of the said shares acquired by the Appellants during the public offer. SEC alleged irregularities on the part of the Appellants and confiscated the shares allotted, consequent upon which the 2nd and 3rd Respondents now acquired a total of 127,924,854 share units. Obviously, if the said 127,954,854 shares

are, at the determination of the pending litigation, adjudged to have been wrongfully confiscated from the Appellants and returned to them, the Appellants would easily have a total of about 192,754,854 shares. Thus, while recognizing the right of the Appellants as the strategic investor as at 2005, that position cannot safely be affirmed to have remained the same after the public offer of 2008 without the determination of the pending litigation. I therefore agree with the learned trial Judge that the orders sought by the Appellants could not be safely granted in the light of the evidence adduced before him. Issues 1 and 2 are accordingly resolved against the Appellants.

Issues 3 and 4
The Appellants contend that there was a miscarriage of justice by the failure of the learned trial Judge to make any pronouncement on the Appellants’ Reliefs v-xvii sought for in their Originating Summons in spite of the declaration that the Appellants rightfully acquired 30% majority shares/interest and are strategic investors and/or managers of the 1st Respondent. It was submitted that having found in favour of the Appellant that they rightfully acquired 30%

majority of the shares/interest and are strategic investors of the 1st Respondent as per Reliefs i-v, the lower Court ought to have unconditionally gone ahead to grant to the Appellant Reliefs v-xvii; this being because the orders sought for under Reliefs v-xvii are consequential upon the establishment of Reliefs i-v which the lower Court declared in favour of the Appellants. On the definition of a consequential relief, the cases of Eze & Ors v. Governor of Abia State & Ors (2014) LPELR-23276(SC); UBN Plc. v. Adom & Anor. (2002) LPELR-7173 were cited and relied upon. That the essence of a consequential relief is to give effect to the judgment which it follows even where it has not been specifically claimed for. But, that in this case the reliefs had been claimed. It was argued that it would amount to nothing if after the lower Court had affirmatively declared the Appellants the strategic investor and/or managers of the 1st Respondent it declined to grant them the legal right to manage the 1st Respondent or to resolve the right to control and manage the 1st Respondent which has been unlawfully taken from them. It is settled law that where there is a

breach of a right there is a remedy or that for every wrong there must be a remedy, ubi jus ibi remedium. The case of Amaechi v. I.N.E.C. (2008) LPELR-446(No. 3) (SC) inter alia, was relied on. The Court was urged to resolve this issue in favour of the Appellants and to hold that the Appellants are entitled to the grant of Reliefs v-xvii as contained in the Originating Summons and to exercise its powers under Section 15 of the Court of Appeal Act, 2004.

It was further submitted that the lower Court’s judgment was saddled with contradictory and conflicting findings on a given issue. A Court of law cannot make a decision in favour of a given position in its judgment and at the same time, turn around to take a contrary position. The Court cannot be approbating and reprobating, at the same time, over a given issue. Reliance was placed on Ngere & Anor. v. Okuruket & Ors (2014) LPELR-22883(SC); F.R.N. v. Iweka (2011) LPELR-9350(SC); Saror & Anor v. Suswam & Ors (2012) LPELR-8611(SC).

?The Respondents submitted that there had been no miscarriage of justice. The Appellants had not been denied fair hearing. The lower Court had also

dispassionately considered the issues presented by the Appellants. The Court was urged to resolve the issue in favour of the Respondents.

In the Reply Brief, it was submitted that the contention of the Appellants was not that they were not heard and afforded the opportunity to adopt their processes in the lower Court but that the lower Court after granting them reliefs i-iv as contained in the Originating Summons unjustly denied the Appellants the benefits of reliefs v-xvii which is, in effect the management rights of the 1st Respondent as the sole strategic investor. That justice was not served by the lower Court’s refusal to grant the Appellants reliefs v-xvii to enable the Appellants enjoy their recognized right.

?I believe the resolution of these Issues 3 and 4 should flow from the resolution of the previous Issues 1 and 2. The trial Court rightly found that the Appellants had acquired 30% majority of the shares/interest and were strategic investors of the 1st Respondent as at 2005. The learned trial Judge from the evidence adduced before him rightly granted reliefs i-iv in favour of the Appellants. In reliefs v-xvii, the Appellants sought

the following orders:
v. A DECLARATION that the Applicants are the strategic investors and managers of African Petroleum Plc (now Forte Oil Plc).
vi. A DECLARATION that by virtue of their legal status as strategic investors in African Petroleum Plc., (now Forte Oil Plc), the Applicants have the legal rights to manage Forte Oil Plc.
vii. A DECLARATION that the 2nd and 3rd Respondents, not being strategic investors are meddlesome interlopers and therefore have no right whatsoever to assume management of Forte Oil Plc.
viii. A DECLARATION that the 2nd and 3rd Respondents, not being managers of the 1st Respondent (African Petroleum Plc., (now Forte Oil Plc), cannot lawfully make any decision relating to the management of the company, 1st Respondent.
ix. A DECLARATION that all management decisions made by the 2nd and 3rd Respondents from 2010, in total disregard of and without the consent of the Applicants are null, void and of no effect.
x. A DECLARATION that all allotment of shares and issuance of other securities made by the Respondents pursuant to the management decisions reached by the 2nd and 3rd Respondents after November, 2005

are void and of no effect, for having been made without proper authority.
xi. A DECLARATION that the removal of Nebolisa Arah and Osa Osunde, directors representing the Applicants on the Board of the 1st Respondent from the Board of the 1st Respondent sometime in 2010 is unlawful, null and void.
xii. AN ORDER that the 2nd and 3rd Respondent should hand over the management of 1st Respondent African Petroleum Plc., (now Forte Oil Plc.), to the Applicants.
xiii. AN ORDER that the 1st, 2nd and 3rd Respondents should pay to the Applicants all their outstanding dividends from 2008, after they unlawfully assumed management of the 1st Respondent (Forte Oil Plc.)
xiv. AN ORDER nullifying all management decisions made by the 2nd and 3rd Respondents from 2010, in total disregard of and without the consent of the Applicants.
xv. AN ORDER nullifying all allotment of shares and issuance of other securities made by the Respondents pursuant to management decisions reached by the 2nd and 3rd Respondents after November, 2005.
xvi. AN ORDER nullifying all unlawful issuance of the securities and or shares of the 1st Respondent in favour of the 2nd

Respondents.
xvii. AN ORDER that the 2nd and 3rd Respondent should pay the sum of N20,000,000,000.00 (Twenty Billion Naira) for the usurpation/unlawful take-over of the management of the 1st Respondent.

On these reliefs, the learned trial Judge held, page 251 of the Record of Appeal:
B. Reliefs V-VII are conditional upon the outcome of pending litigation.
C. Relief IX-XVII are declined.

?Again, I find no reason to disturb the findings and conclusions of the learned trial Judge, which I do not find to be perverse and which are in line with the evidence adduced. Let me reiterate for the sake of emphasis. By virtue of the purchase or acquisition by the 1st Applicant of 30% shares of the 1st Respondent from Sadiq Petroleum (Nig. Ltd.) by virtue of Exhibit 2, the Appellants became the strategic investor and in management of the 1st Respondent. A total of 64,800,000 share units represented the said 30%. There was subsequently a public offer in 2008. By the said public offer, the Appellants would have acquired an additional 127,924,854 units. But, there were alleged ethical and other issues involving the purchase of shares of the 1st

Respondent by the Appellants as a result of which S.E.C. sanctioned them. Following sanction by S.E.C., the 127,924,854 share units were confiscated and transferred to ZRL Nominees. The shares were subsequently acquired by the 2nd and 3rd Respondents. The result of the sanction by the Regulatory Authority thereby changed the composition of the shareholding of the 1st Respondent. Thus, while as at 2005 the Appellants had 64, 800,000 share units which represented 30% of the shares, by the public offer of 2008 in which they lost their bid to acquire an additional 127,924,854 share units, their shareholding become diluted. The directives and consequent confiscation by SEC is subject matter of litigation having been challenged by the Appellants in Suit No FHC/L/CS/1534/2010: Afribank Nigeria Plc & 2 Ors v. The Securities and Exchange Commission & Anor. and in Suit No. FHC/L/CS/160/13: Forte Oil Plc v. Mainstreet Bank Limited. At the material time, these suits were pending.

?The trial Court did not take into account extraneous matters which were not brought before it in the course of proceedings. In the light of the affidavit evidence, most of which

were supplied by the Appellants themselves, how could the learned trial Judge proceed to grant the orders sought by reliefs v-xvii? Such decision may well lead to anarchy in the corporate body concerned. The argument that neither S.E.C. nor AMCON has power to confiscate and or transfer shares of an owner are already the confessed contention of the Appellants before other Courts of co-ordinate jurisdiction; Suit No FHC/L/CS/160/13. It is for the Court seized of the matters to pronounce on the legality or otherwise of the action taken by S.E.C. The learned trial Judge herein could not have gone ahead to make any pronouncements or grant orders that may be in conflict or may preempt decisions of the Courts before which such matters are pending. On the need for caution in making orders in matters that are pending in other Courts of co-ordinate jurisdiction, the Supreme Court, per the noble Lord, Pats Acholonu, JSC in Nigeria Intercontinental Merchant Bank Ltd v. Union Bank of Nigeria Ltd (supra) also reported in (2004) LPELR-2003(SC), (2004) 18 NSCQR 134, put it graphically:
“The theory of justice to which we adhere rests a priori on the premise that there

must be certainty and the parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. of co-ordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter involving the same parties i.e. each relying on his own whims, caprices, prejudices and sometimes a vaunting ego, makes nonsense and mockery of the law.”
In his contributory opinion, Ejiwunmi, JSC said:
“Where a Court was clearly aware that another Court of coordinate jurisdiction is seized of a case with the same parties and the same subject matter before it as found in this appeal, it is an abuse of process for that Court to continue with the hearing of the case and proceed to make orders as was done in this case.”
See also Dumez Nigeria Plc v. U.B.A. Plc (2006) 14 NWLR (Pt. 1000) 515, (2006) LPELR-7635(CA) where this Court, per Rhodes-Vivour, JCA (as he then was) cautioned:
?”Once a Judge is aware of a case in his, or another jurisdiction on the same subject matter as the one before him such situation calls for caution. Nowadays this is common and Judges

should not allow it to occur. If they do and proceed with the trial as if all is well, there is a real likelihood of two conflicting decisions at the end of trial ? which would end up polluting the streams of justice which ought to be kept pure at all times.”

The learned trial Judge acted in line with standard judicial practice by recognizing the need to exercise caution in the grant of reliefs v-xvii. This caution exercised by the learned trial Judge demonstrated no miscarriage of justice meted out on the Appellants. Issues 3 and 4 are therefore resolved against the Appellants.

Issue 5
The trial Court had, in determining the preliminary objection raised by the Respondents on locus standi, ruled that while the 1st Appellant had locus standi to bring the action, the 2nd Appellant had none. For the Appellants, it was contended that the 1st Appellant was used as special purpose vehicle by Afribank Nigeria Plc, later known as Mainstreet Bank Ltd, and now Skye Bank Plc, the 2nd Appellant, to acquire 30% of the controlling shares of the 1st Respondent from Sadiq Petroleum Nigeria Limited in November, 2005. The 1st Appellant is a subsidiary

company owned by the said 2nd Appellant. That the 1st Appellant became a subsidiary of the 2nd Appellant by virtue of the 2nd Appellant’s acquisition of all the assets of Afribank Nigeria Plc, later Mainstreet Bank Ltd, upon the liquidation of Afribank Nigeria Plc by Nigerian Deposit Insurance Corporation (N.D.I.C.), which included the 1st Appellant. That being a subsidiary company, the 1st Appellant is under the full control and management of the 2nd Appellant in line with the provisions of Section 338 of Companies and Allied Matters Act (CAMA). The 2nd Appellant had shown its special interest in the matter, and was not only a desirable party but also a necessary party to this action. Reliance was placed on Jadesimi v. Okotie-Eboh; In re Lessey (1989) LPELR-20220; Olawoye v. Jimoh & Ors. (2013) LPELR-20344(SC); A-G, Fed. v. A-G, Abia State (2002) LPELR-632(SC). It was argued that the 2nd Appellant had shown that it had economic interest in the 1st Appellant which must be protected. The 2nd Appellant had every right to protect its investments and economic interest in the 1st Appellant. It was argued that this was sufficient to grant the 2nd Appellant locus

to maintain this action; locus standi or standing to sue being the legal right of a party to institute an action to be heard in litigation before a Court of law or tribunal. A person is said to have locus standi if he has shown sufficient interest in action and that his civil rights and obligations have been or are in danger of being infringed; relying on Olangunju v. Yahaya (1998) 3 NWLR (Pt. 542) 501; Ojukwu v. Ojukwu (2008) 18 NWLR (Pt. 1119) 439 at 457.

It was further submitted that the lower Court ought not to have followed the decision of this Court in Musa v. Ehidimhen (1994) 3 NWLR (Pt. 334) 544 to hold that the relationship between a parent company and its subsidiary is not apposite to agency when there was a more recent Court of Appeal case of Port Harcourt Refining Company Ltd. (PHRC) v. Imouh Okoro (2010) LPELR-4861 which held otherwise. That it is an elementary principle of law that when it comes to conflicting decisions of a Superior Court, the subordinate Court is enjoined to follow the one that is later in time; relying on Owor v. Christopher & Ors. (2008) LPELR-4813; Ansa v. R.T.P.C.N. (2008) 7 NWLR (Pt. 1086) 421 at 442-443. Based

on the above, it was submitted that the lower Court ought not to have struck out the name of the 2nd Appellant from this suit. The Court was urged to resolve this issue in favour of the Appellants and hold that the name of the 2nd Appellant was wrongly struck out by the lower Court and to restore it as a party in the lower Court and as an Appellant in this Court.

In reply, the Respondents invited the Court to note that the Appellants have not disputed the fact that the 1st Appellant is a separate and distinct entity from the 1st Appellant. The position of the law is that a company has a distinct legal personality and identity from its shareholders, subscribers and promoters. It is not an agent of its shareholders and cannot be an agency of the shareholders; relying on Aso Motel Kaduna Ltd. v. Deyemo (2006) 7 NWLR (Pt. 978) 87; Okomu Oil Palm Co. Ltd v. Iserhienrhien (2001) 6 NWLR (Pt. 710) 660; Musa v. Ehidiamhen (1994) 3 NWLR (Pt. 334) 544; Union Beverages Ltd v. Pepsi Cola International Ltd. & Ors. (1994) 4 NWLR (Pt. 330) 1 at 16. The Court was urged to discountenance the arguments for the Appellants and resolve the issue against them.

?In

the Reply Brief, the Appellants acknowledged that the 2nd Appellant and the 1st Appellant are different legal entities, but submitted that their case was that the 1st Appellant is a subsidiary of the 2nd Appellant used by the 2nd Appellant as a special multipurpose vehicle to acquire the shareholding interest in the 1st Respondent and that the 1st Appellant is under the full control and supervision of the 2nd Appellant. The case of Port Harcourt Refining Company Ltd (P.H.R.C.) v. Imouh Okoro (supra) was again cited and relied on to submit that an agency role is created between the subsidiary and the parent company once the subsidiary company is under the complete control and management of the parent company. That the case of Musa v. Ehidiamhen (supra) cited and relied by the Respondents is no longer the law given that the case of Port Harcourt Refining Company Ltd (P.H.R.C.) v. Imouh Okoro (supra) is a later decision of the Court of Appeal. The Court was urged to allow this appeal and set aside the part of the judgment of the lower Court.

?Locus standi is the legal capacity of a party to commence or institute proceedings in Court of law; Thomas v.

Olufosoye (1986) 1 NWLR (Pt. 18) 669 at 684-685; Odeneye v. Efunga (1990) 11-12 S.C. 122. To contend that a party has no locus standi is to contend that he has no right to appear and be heard in a matter; A.G. Kaduna State v. Hassan (1985) LPELR-617(SC). The issue of locus standi is not determined by the success or the merits of the case. What is important is that the claimant has sufficient interest in or legal rights in the subject matter. It is in the claim of the claimant in the originating processes that must reveal the personal interest of the claimant to institute the action. The originating process must reveal that the civil rights and obligations of the claimant are being violated or in danger of being infringed or violated by the act of the defendant. Where no such personal interest is disclosed, the claimant would have no locus standi to institute the action; Yesufu v. Governor Edo State (2001) 6 S.C. 56; Oloriode v. Oyebi (1984) LPELR-2591(SC); A-G, Adamawa State v. A-G, Federation (2005) 12 S.C. (Pt. 11) 133; UBA Plc v. BTL Industries Ltd (2006) 12 S.C. 6. Where a party has no locus standi to institute an action, the Court would have no

jurisdiction to hear him and the suit or where there are more than one party, the name of the party without locus standi must be struck out; Basinco Motors Ltd v. Woermann-Line & Anor (2009) 13 NWLR (Pt. 1157) 149 S.C.; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669. Opobiyi v. Muniru (2011) LPELR-8232(SC).

It is well settled that a decision is authority for what it decides and nothing more. Each case must be considered on its own particular or peculiar facts or circumstances; Skye Bank Plc v. Akinpelu (2010) LPELR-3073(SC), (2010) 9 NWLR (Pt. 1198) 179; Tanko v. State (2009) 4 NWLR (Pt. 1131) 430, (2009) LPELR-3136(SC); Udo v. State (2016) LPELR-40721(SC). In the case of Port Harcourt Refining Company Ltd (P.H.R.C.) v. Imouh Okoro (supra), cited and relied upon by the Appellants, the issues before the Court bordered on whether the appellant therein, a subsidiary of N.N.P.C. was entitled to the benefit of a pre-action notice as provided under the N.N.P.C. Act, 1990; and whether the lower Court had jurisdiction to entertain the matter which arose from the status of employment of the respondent, the appellant being a subsidiary of N.N.P.C. and an

agency of the Federal Government. The Court, per Eko, JCA (as he then was), made reference to the earlier decision of this Court in Opuo v. N.N.P.C. & Anor (2001) 14 NWLR (Pt. 734) 552, which was on similar facts, wherein the Court considered provisions of the N.N.P.C. Act, 1990 and held that the relationship between the holding company, N.N.P.C., and its subsidiary, the 2nd respondent in the appeal, was apposite to agency, and that agency is used to connote the relationship which exists where one person has authority or capacity to create legal relations between a person occupying the position of principal and a third person. In Port Harcourt Refining Company Ltd (P.H.R.C.) v. Imouh Okoro (supra), the appellant therein, a subsidiary of N.N.P.C., had contended that issue of termination of the employment of the respondent therein arose from the management and administration of a Federal Government agency within the meaning of Section 251 of 1999 Constitution of the Federal Republic of Nigeria and within the jurisdiction of the Federal High Court not a State High Court. This Court also considered provisions of the N.N.P.C. Act, 1990 and the provisions of

Section 251 of the 1999 Constitution and upheld that contention. The said case cannot be relied upon to submit that a subsidiary company becomes an agent for the holding company in all matters.
In the recent case of Bulet Int’l (Nig.) Ltd & Anor v. Olaniyi & Anor (2017) LPELR-42475(SC), the Apex Court of the land, per Kekere-Ekun, JSC, espoused once more the status of a parent company and its subsidiary thus:
“The concept of corporate personality was established a long time ago in the case of Salomon v. Salomon & Company Ltd. (1897) AC 22 to the effect that a company is a legal entity distinct from its members. It has a distinct legal personality and is capable of suing and being sued in its corporate name. A company is a different person altogether from the subscribers to the memorandum and is neither an agent nor a trustee for them. It also has the capacity to enter into any agreement in its corporate name. See: Marina Nominees Ltd v. F.B.I.R. (1986) NWLR (Pt. 20) 48; Afolabi & Ors v. Western Steel Works Ltd & Ors (2012) 17 NWLR (Pt. 1329) 286. See also Section 37 & 38 of the CAMA. A subsidiary company has its own

separate legal personality. In general, the acts of a subsidiary company cannot be imputed to the parent company and vice versa. See Union Beverages Ltd. v. Pepsi Cola International Ltd. & Ors. (supra). The lower Court was right when it held that the liquidation of Commerce Bank Plc could not and did not affect transactions validly entered into by the 2nd respondent.”
In his contributory judgment therein, Eko, JSC said:
“In any case, the 2nd Respondent, C.B. Ventures Ltd, upon its incorporation, had acquired a legal personality that made it distinct from its parent company, Commerce Bank Plc. That is the undeniable corporate personality recognized in law since the decision in SALOMON v. SALOMON LTD (1897) AC 22… to impute the life and transactions of the 2nd Respondent to the fortunes of its parent company cannot sail. See: UNION BEVERAGES LTD. v. PEPSI COLA INTERNATIONAL LTD. & ORS. (1994) 4 NWLR (Pt. 330) 1 AT 6.”
The instant action was premised on the Share Purchase Agreement, dated 28/11/2005, Exhibit 2, annexed to supporting affidavit to the Originating Summons, by which the 1st Appellant acquired all the shares of the 1st

Respondent from Sadiq Petroleum (Nigeria) Ltd. In the said Exhibit 2, reproduced at page 33 of the Record of Appeal, the 1st Appellant which was described therein as:
a company incorporated in Nigeria under the Companies and Allied Matters Act 1990 with RC number 365153 whose registered and principal place of Business is situate at number 94, Broad Street, Lagos (hereinafter referred to as the “PURCHASER” which expression shall where the con so admits include its successors in title and assigns) of the other part.
It was this document that guided the transaction between the parties thereto and made the 1st Appellant the core strategic investor with managing rights over the 1st Respondent. No mention was made of the holding company of the 1st Appellant or of any rights or privileges that accrue to the said holding company, 2nd Appellant, in this document. The 2nd Appellant, a completely distinct legal personality, was not part of the agreement represented by Exhibit 2. I therefore agree with the learned trial Judge that the 2nd Appellant had no locus standi to institute action to enforce any agreement or transaction as represented by Exhibit 2.

Issue 5 is accordingly resolved against the Appellants.

In all, this appeal fails and is hereby dismissed. The decision of the Federal High Court, Lagos Division in Suit No: FHC/L/CS/1082/2014 delivered on June 30, 2015 is hereby affirmed.
Parties are to bear their costs.

JUMMAI HANNATU SANKEY, J.C.A.: I have had the advantage of a preview of the Judgment just delivered by my learned brother, Otisi, J.C.A.
I entirely agree with her reasoning and also with her conclusion that the Appeal should be dismissed.
I too will dismiss the Appeal. I abide by the consequential orders made in the lead Judgment, including the order as to costs.

JOSEPH EYO EKANEM, J.C.A.: I have had the opportunity of reading in advance the lead judgment of my learned brother, Otisi, JCA, which has just been delivered. I entirely agree with the same. For the reasons set out in the judgment, I also hold that the appeal is without merit and I accordingly dismiss the same.

?I abide by the consequential orders made in the lead judgment.

Appearances:

Dr. Charles Mekwunye with Ekene Nwonu, Esq.For Appellant(s)

Victor Ogude, Esq.For Respondent(s)

Appearances

Dr. Charles Mekwunye with Ekene Nwonu, Esq.For Appellant

AND

Victor Ogude, Esq.For Respondent

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