CHIEF GEOFFREY OZUEH & ORS. V. CHIEF ANTHONY EZEWEPUTA & ORS.
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of April, 2004
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
MONICA BOLN’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
- CHIEF GEOFFREY OZUEH
2. CHIEF ISAAC EZECHI
3. CHIEF SYLVANUS IGWILO
4. CHIEF JOSEPH EBUZOEME
5. CHIEF NELSON ENENDU
6. CHIEF JEROME UBA
7. CHIEF SYLVESTER NZELU (ODENIGBO)
8. CHIEF JOSEPH EWULUM
9. CHIEF AFAM OGENE
10. CHIEF BENEDICT IFIONU
11. CHIEF REUBEN OZURUMBA
12. CHIEF MICHAEL CHUKWUKA
13. CHIEF CHARLES OKAFORAGU
14. CHIEF ASIKA CHUKWUNEKE
15. CHIEF ERNEST ANOZIE
16. CHIEF UCHENNA ILOABUCHI Appellant(s)
- CHIEF ANTHONY EZEWEPUTA
2. NIGERIAN ASSOCIATION OF ROAD TRANSPORT OWNERS
3. ANTHONY UGBAJA Respondent(s)
OGUNBIYI, J.C.A.(Delivering the Lead Ruling): The motion on notice in this application is brought pursuant to sections 242(1) and 243(a) of the 1999 Constitution of the Federal Republic of Nigeria and Order 3 rule 3(3) of the Court of Appeal Rules, 2002 praying for the following orders:
“(a) extension of time within which to apply for leave to appeal and to appeal against the decision of the High Court of Enugu State;
(b) leave to appeal as interested persons against the judgment of High Court of Enugu State delivered on 11th August, 2003;
(c) leave to appeal against a judgment said to be made with the consent of the parties;
(d) extension of time within which to file notice and grounds of appeal.
And for such further and/or other order as to the court may seem fit.”
The grounds of the application are contained in the attached schedule.
In support of the application is an affidavit of 19 paragraphs sworn to by Chief Geoffrey Ozueh and chief Afam Ogene, the 1st and 9th applicants respectively who are registered members of the 1st defendant and therefore deposing at the request of the other applicants and on behalf of the registered members of the 1st defendant. Four exhibits “A”, “B”, “C”, and “D” are also attached to the motion paper.
On the 10th of February, 2004 when the motion was called up for hearing, the learned counsel Mr. I. E. Ogbuli on behalf of the applicants relied on all the paragraph’s of the affidavit in support as well as the exhibits also attached thereto. He also sought to rely on the further document, reply to counter-affidavit, of Chief Anthony Ezeweputa filed on the 19th November, 2003 as well as the exhibits “E” and “F” also attached.
The said learned counsel submitted and re-affirmed the constitutional right to appeal which avail the applicants as interested parties as long as they, either feel aggrieved or are affected by the decision complained against. Reference in support was made to section 243(a) of the 1999 Constitution. Also under reference is exhibit “C”, a certified true copy evidencing the motion on notice before the lower court for leave to appeal against the said decision, as well as exhibit “D” a certified true copy of the proceedings of the court refusing the said application. The counsel also relied upon the schedule attached to the motion paper and which states the proposed grounds of appeal.
The learned counsel on his submission asserted affirmatively that the applicants have complied with the conditions precedent in the bringing of this application. To support the constitutional right availing the applicants, he cited the decision in the authority of Goni v. Gambo (2003) 17 NWLR (Pt. 849) 411 at 418 paragraphs (g) ratio 2 where the right of appeal is constitutional and that which cannot be taken away so long as they can show that they are aggrieved parties or parties interested.
For the definition of parties interested, same is restated in Re-Madaki (1990) 4 NWLR (Pt. 143) 266 at 277 paragraphs (b-g) ratios 5 and 6. A further reference is the case of Ogunbiyi v. Mustapha (1996) 4 NWLR (Pt.442) 337 at 347 paragraph (e) ratio 1. Exhibits “E” and “E1” were also in reference for purpose of evidencing the bona fide nature of the identity cards of the applicants as members of Nigerian Association of Road Transport Owners (NARTO).
The learned counsel urged before us to hold that the applicants are either interested, aggrieved, or parties likely to be aggrieved. That with the purported judgment of the 11th August, 2003 having been signed by the consent of both parties, the provision of section 242(1) of the 1999 Constitution allows an appeal with leave of court sequel to same therefore.
The learned counsel finally argued in favour of the application to allow the applicants exercise their constitutional rights. While the plaintiff/respondent filed a counter-affidavit in reply to the motion, the 2nd defendant/respondent filed both counter and further counter-affidavits on his part and attached a number of documents.
Mr. Chuma Oguejiofor, Esq. of counsel on behalf of the plaintiff/respondent rightly conceded to the constitutional right to appeal, availing the applicants. However, he went further to reiterate the same law which lays down certain requirements as necessary prerequisite to allow the lee way to appeal. That the four prayers sought for are not specific enough especially with the application being out of time, and thus, the necessity of the trinity prayers. That the applicants were too much in a haste to have jumped into section 243(a) of the Constitution without first adhering to the necessary pre-ambles and consequent to which the motion is incompetent even on this ground alone. The learned counsel further argued that prayer C had not also complied with section 241(2)(c) of the Constitution. That by section 242(1) of the same Constitution, leave is mandatory where an appeal is on mixed law and facts. Reference to substantiate his arguments was made to the provision of section 303(1) and (2) of the Companies and Allied Matters Act (CAMA) 1990, wherein sub-section (2) in particular is mandatory in respect of a corporate company. That by the very nature of paragraph 12 of the affidavit in support of the motion, leave is also of a necessity and which same has not been sought for.
The counsel on this score urged that the application should also be struck out, as being incompetent.
On the merit of the application the learned same counsel argued and submitted that no good reasons were proffered for the exercise of the court’s discretion in the applicants’ favour. The authorities in support are Obodu v. Enarofia (1980) 5 – 7 SC 42, and Mobil Oil Ltd. v. Agadaigho (1988) 2 NWLR (Pt. 77) 383. That the deposition at paragraph 18 of the affidavit to the effect that the Judge went on leave is not sufficient a cogent and good reason to go by. The learned counsel further relied on section 243(a) of the Constitution, which same presupposes that the application for leave before the lower court must have been refused. This he argued is not the case with exhibit “D”, where the application was struck out for non-proper service. Furthermore, that by paragraph 12 of the same affidavit in support, it was required of the applicants to have attached the said resolution stated therein especially being a registered company, and which by section 303 of CAMA, the expectation is very imperative.
In further reference also made to sections 213(2) and 215(2) of the said CAMA, the learned counsel emphasized the incompetent nature of this application in the light of section 299 of the same CAMA. That going through the resume of the facts, there is no indication that the applicants are in the minority and therefore, are oppressed by the majority. That both parties are agreed that the company is part of the consent judgment.
Further still, he contended that the issue of minority or majority number of shares are not what is of relevant significance but rather the share holding based on section 299 of CAMA. The authority in point and relevant is Foss v. Harbotle (1843) 2 Hare 461. Further reference was made to sections 314, 315 and 321 of CAMA. The learned counsel on the totality urged that the application lacks merit and same should accordingly be dismissed.
The learned counsel, Mr. C. Arinze Onyia for the 1st defendant/respondent was indisposed and therefore asked for an adjournment to the 23rd February, 2004. On the same sought date, the said counsel in opposing the application, adopted the arguments and submissions of Chuma Oguejiofor, Esq. for the plaintiff/respondent. The said counsel however, in addition further submitted that the court should disregard exhibit “D” attached to the motion which he maintained did not tantamount to a refusal but a mere striking out. That the court should therefore strike out paragraphs 16 and 17 of the affidavit in support of the motion for misrepresenting the contents of exhibit “D”. That the application is incompetent because the conditions precedent have not been met. On the merit of the application, the learned counsel re-echoed the submission of Mr. Oguejiofor that the applicants have not adduced any cogent reason warranting the exercise of the discretion in their favour. That the application lacks merit and same should therefore be refused.
On behalf of the 2nd defendant/respondent, Mr. Ike Tagbo in principle also adopted the arguments by both the counsel for the plaintiff/respondent and that of the 1st defendant/respondent as well as the averments on their counter-affidavit and further counter-affidavit filed on the 1st December, 2003 and 21st January, 2004 respectively.
That by the averments of their counter-affidavit, the applicants have no locus standi because they are neither members, officers, nor can their names be found as registered members or share-holders of the 1st defendant company. That by producing their identity cards is not sufficient reason to accord them locus. That per exhibit ‘A’ which is the Memorandum and Articles of Association of the 1st defendant/respondent clause 5(a) and (b) relating to conditions of membership have not been shown to be satisfied.
Furthermore, that with the applicants having come under section 243(a) of the 1999 Constitution as a party interested, they must satisfy two conditions before they could be allowed to appeal against the judgment of the lower court. The said section, the counsel submitted, is in pari materia with section 222 of the 1979 Constitution. That the applicants have to scale the hurdle to show how their interests have been affected. Reference to further buttress his submission was made to the authority in the case of Hon. Justice Adenekan Ademola v. Harold Sodipo & 4 Ors. (1992) 7 NWLR (Pt. 253) 251; (1992) 7 SCNJ (Pt. 2) 417 ratio 1.
That the applicants have to show their personal interests having been affected as against that of the company, and must also fulfill the conditions necessary and laid down by the apex court in Re Ugadu (1988) 5 NWLR (Pt. 93) 189 where genuine and a recognizable interest must be shown.
On the third arm under Order 3 rule 4 of the Court of Appeal Rules, the counsel re-affirmed the two conditions which must be fulfilled, with the first expecting the applicant to show by affidavit good and substantial reasons for failure to appeal within time. This, the counsel maintained had not been ventured. On the existence of grounds of appeal, that there is neither any nor such proposed before the court showing a prima facie good cause for an exercise of discretion, which is not to be made in the absence of any material to work with, and in particular, adherence to Order 3 rule 2 of the rules of this court. That the application which complains of a grievance against the company ought to have been by way of leave, in compliance with the dictates of the case of Unipetrol (Nig.) Plc v. Agip (Nig.) Plc & Ors. (2002) 14 NWLR (Pt. 787) 312 ratios 1 and 2 in particular.
The learned counsel finally argued in favour of the dismissal of the application for being scandalous.
In his reply on points of law, the learned counsel Mr. Ogbuli impressed upon the court to disregard the submissions made on behalf of the respondents for a number of reasons.
First, on the reference made to Order 3 rule 2 of the rules of this court, that the order deals with what a notice of appeal must contain. That for an application of this nature, the proper provision applicable is Order 3 rule 3 sub rule (7) (c) and (d). That the application was filed within 15 days allowed by the law following the refusal to grant same and consequent to which they were not out of time.
On the interest shown by the applicants which needed to be protected, the learned counsel submitted of its necessity with reference to Re – Madaki (supra) and particularly emphasized the phrase ‘capable of being affected by this case’.
The learned counsel further made references at length to various sections of CAMA with specific reliance on section 26(6) to show the interests which the applicants are seeking to protect.
Finally, and on the mandatory nature of section 303 of CAMA and the rules in Foss v. Harbotle supra, the learned applicants’ counsel distinguished between a company limited by shares and that limited by guarantee. It follows, he asserted, that the authority of Unipetrol (Nig.) Plc v. Agip (Nig.) Limited (supra) on the question of derivative action is not applicable to the matter in issue; in other words, to a company limited by guarantee. Furthermore, that a derivative action is an exception to the rule in Foss v. Harbotle which restates that it is the company who ought to sue or the shareholder.
Thus, the applicability of section 303(1) of CAMA where the applicants are coming in to protect the interest of the company. In conclusion, the learned counsel emphasized the applicants’ constitutional rights to appeal, especially with them having complied with the conditions precedent in respect of a company limited by guarantee.
Constitutionally, the right to appeal is that which is guaranteed and also the prerogative of all parties. This is the cardinal principle upon which our constitutional framework is predicated. The said right which is fundamental and automatic to all who are parties to proceedings cannot therefore, in any way, be under-rated or taken away provided the exercise of such right is made within the confines of the rules and regulations giving rise to same. In other words, where such right ceases to be ‘as of right’, to a party as a result of his own making, the restoration must be subject to leave of court first sought and obtained.
Where however, persons are not parties as of right but seek to be recognized as such by reason of the effect of a court’s order, the outcome, which either affects, directly or otherwise appear to affect their interest, as is claimed to be the situation at hand, the circumstance of the position differs and is not on all four as relating to those of right.
As rightly argued and submitted by the learned applicant’s counsel therefore, the provision of section 243(a) of the 1999 Constitution affords a right to appeal as interested parties. The said right which obviously must be subject to certain laid down necessary conditions pre-requisite and in compliance with the due process of law before it could be availed for exercise.
It is also trite and had been often pronounced times without number that it is not sufficient for a court to be properly constituted with the subject matter properly before it, but is also in addition, very significant that the action must be properly initiated by the due process of law. Failure to satisfy the essentials, would certainly rob the court of jurisdiction, without which it would merely act in futility rendering proceedings a nullity and a mere fruitless academic exercise. All courts are therefore well informed not to engage in such exercise.
Following from the foregoing deductions, and having regard to the submissions made by the respondents’ counsel, their initial arguments all centred on the incompetent nature of the application before us. If same stands and is substantiated, the merit of the entire application would stand devoid of substance. It is significant in that respect therefore to first determine whether or not the application is competent.
The 1st leg of attack on the prayers relates to the precision of the application and the fact of its being out of time. Deducing from the very nature of the prayers sought on the motion paper dated, 11th and filed on the 12th November, 2003 it is not in controversy that the applicants are out of time and thus, the underlying reason for the prayers. In situations where parties to an action constitutionally lose their right to appeal for being out of time, the revival of such right must need be by way of the mandatory trinity prayers as rightly argued by the respondents’ counsel. If the expectation of this cannot be dispensed with in situations where the applicants are parties, it should have signaled the applicants that same should be of a greater necessity as it is in the case at hand where they are not parties as of right.
The provision of section 243(a) of the Constitution is in respect of right of appeal from the Federal High Court or a High Court in civil matters, ‘…at the instance of any other person having an interest in the matter…’. Prayer no (b) on the face of the motion paper states:
“(b) leave to appeal as interested persons against the judgment of the High Court of Enugu State delivered on 11th August, 2003.”
The said prayer (b) as rightly argued and submitted by the learned counsel, Mr. Chuma Oguejiofor and supported by the other respondents’ counsel is that which seeks to fulfill the provision of S.243(a) of the Constitution. In other words, by seeking leave to appeal as interested parties simplicita and without more, did not seem to indicate that the applicants either knew or were aware of their position by being out of time which should have first been taken care of before they could have brought themselves to the level where they thought they were. In other words, in the absence of an application for extension of time therefore, they have certainly overshot the hurdle expected of them before dabbling into section 243(a) of the Constitution. This certainly is very detrimental to their application.
Further still, by paragraph (c) of the prayers on the motion paper, same seeks ‘leave to appeal against a judgment said to be made with the consent of the parties’. The consideration of this prayer is predicated on the provision of section 241(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999 which same reproduced states:
“241(2) Nothing in this section shall confer any right of appeal;
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
With reference to the affidavit deposed to in support of the motion and the exhibits so attached, there is nowhere stated to show that any such compliance with the provisions of the Constitution giving the applicants the right to exercise of discretion, had in any way been complied with. These are matters of facts and must be placed before the court on the depositions.
Further still and with reference to the schedule of the proposed grounds of appeal attached to the applicant’s motion paper, the 1st proposed ground reproduced states as follows:
“(1) The person who alleges in evidence that he authorized the signing of the agreement on behalf of the 1st defendant/judgment debtor was not an officer of the applicant and in fact was not a registered member of the applicant when he alleged he authorized the 2nd defendant who is also not a member of the 1st defendant to sign the agreement and had no authority to authorize the signing of the said agreement.”
In keeping with the constitutional provision per section 242(1) where an appeal relates to mixed law and facts, it is mandatory that leave must first be sought and obtained. The said subsection states:
“242(1) Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
Having regard to the application and its entire ramification, there is no evidence of such leave having been obtained and placed before us. The court cannot act in a vacuum.
Sequel to paragraph 12 of the affidavit in support of the motion paper, same reproduced states as follows:
“12. We and the registered member we represent are unable to call a meeting and the persons unlawfully occupying the offices of chairman and secretary are unwilling to summon a general meeting of the registered member of the branch to ascertain by what authority Innocent Ohazurike committed the company to the said agreement or to pass a resolution for the company to appeal against the decision.”
From the said paragraph 12 in support of the motion, it pre-supposes affirmatively that the company is registered and same which must as rightly submitted by the respondents’ counsel be subject to section 303(1) and (2) of the Companies and Allied Matters Act (CAMA) 1990 which same reproduced states:
“303(1) Subject to the provisions of sub section (2) of this section, an applicant may apply to the court for leave to bring an action in the name or on behalf of a company, or to intervene in an action to which the company is a party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the company.
(2) No action may be brought and no intervention may be made under subsection (1) of this section, unless the court is satisfied that –
(a) the wrong doers are the directors who are in control and will not take necessary action;
(b) the applicant has given reasonable notice to the directors of the company of his intention to apply to the court under subsection (1) of this section if the directors of the company do not bring, diligently prosecute or defend or discontinue the action;
(c) the applicant is acting in good faith; and
(d) it appears to be in the best interest of the company that the action be brought, prosecuted, defended or discontinued.”
By the intendment of section 303 of CAMA, (supra) and taken together with paragraph 12 of the affidavit in support of the motion, expectations of facts are necessary materials to be placed before the court evidencing the assertion of the authority by the applicants, from the company they represent. The absence of such required leave as a pre-requisite is very detrimental to the applicants’ case.
I would also further wish to restate that by the very nature of the orders sought for by the applicants on their prayers on the motion paper, same I am afraid is not seeking or asking for anything specific if at all. In other words, there is no precision indicating what particular judgment of the High Court in Enugu State in respect of which orders are sought. It is a matter of common knowledge that there are more than one High Court in Enugu State, and the said High Courts were likely to have delivered more than one judgment on the date 11th August, 2003. The specific parties in the said consent judgment and the date agreed are also all material information necessary to have been placed before us.
Courts are not expected to make orders at large and without specific restrictions to that placed before them. It is not also its duty to go on a voyage of discovery in finding out what particular judgment was made and in respect of which the application prays. These are all necessary material information that must be placed before it as a matter of course.
There is the need for prayers to be specific, decisive, precise and to the point in such a way that there can be no question or ambiguity of what is asked for.
The said application from all indications is grossly and very much incompetent. The entire same which is incurable cannot stand as it lacks any foundation. Consequently, any attempt to consider the arguments and submissions as well as the decided authorities cited by all counsel would not serve any useful purpose, but a mere academic exercise in futility. This, I hold because with the application being incompetent, this court lacks jurisdiction to entertain any further proceedings related to the same.
In the result, I therefore make an order that the said motion dated 11th and filed on the 12th November, 2003 is hereby struck out for gross incompetence. I also make a further order that each party should bear his own costs.
Motion is accordingly struck out with no order as to costs.
FABIYI, J.C.A.: I have read before now the ruling just handed out by my learned brother, Ogunbiyi, J.C.A. I completely agree that the application is grossly incompetent and should be struck out. The reasons appear legion. I wish to further highlight two of them; even if in a brief fashion.
There is no iota of doubt about it that ground 1 of the proposed grounds of appeal in the schedule attached to the application relates to facts; not law. Section 242(1) of the 1999 Constitution makes provision that leave be sought and obtained to appeal on grounds of mixed law and facts. No leave has been sought and none was granted by the High Court. And no prayer relates to same in this application under consideration. For this reason, the application is incompetent.
It is clear that under section 303(1) & (2) of the Companies and Allied Matters Act, 1990, the applicants require leave before they can appeal. Even if they are members of the company, they cannot go to court to protect the interest of the company without leave first sought and obtained. No leave in this direction was sought and none was obtained. It is only the company that should protect its interest except where the minority can establish that it is being oppressed. See Foss v. Harbotle (1883) 2 Hare 461.
For the two reasons stated above and of course, the fuller ones contained in the ruling of my learned brother, I, too, hereby come to the conclusion that the application is incompetent and should be struck out. I order accordingly. I endorse the order on costs.
DONGBAN-MENSEM, J.C.A.: The applicants, in a motion filed pursuant to the provisions of sections 242(1) and 243(a) of the Constitution of the Federal Republic of Nigeria 1999, seek the leave to appeal as interested persons against the judgment of the High Court of Enugu State delivered on the 11th August, 2003 in suit No.E/252/2001.
Paragraph one of the affidavit in support of the motion states that the applicants are members of the 1st defendant.
In paragraph two, the 1st defendant is said to be a body incorporated under the Companies and Allied Matters Act, Cap. 59 LFN 1990, (CAMA) with registration No. RC113153.
Section 303(1) and (2) of CAMA clearly sets out the procedure to be adopted by an interested/aggrieved party who seeks to intervene in a proceedings involving a body registered under CAMA, as the applicants in this case seek to do. The said section requires the applicant to first apply for the leave of court to bring the action to intervene.
Sub-paragraph 2 of section 303 makes the seeming discretion to apply for leave by the use of the word ‘may’ in sub-paragraph 1 to be mandatory because it states four conditions to be met. These are that the court must determine and be satisfied that:
“(a) the wrong doers are the directors who are in control, and will not take necessary action;
(b) the applicant has given reasonable notice to the directors of the company of his intention to apply to the court under subsection (1) of the this section if the directors of the company do not bring, diligently prosecute or defend or discontinue the action;
(c) the applicant is acting in good faith; and
(d) it appears to be in the best interest of the company that the action be brought, prosecuted, defended or discontinued.”
These conditions make an application for leave to apply to intervene an imperative. There is no such application before this court nor has it been shown that the trial court granted such an application. The submissions of learned counsel for the respondents have equally identified several other preliminary steps, which have not been taken. These omissions leave this court bereft of the jurisdiction to hear and determine the motion placed before us by the applicant.
The application is premature. In the circumstance, we are circumscribed and to go further would be a mere academic exercise an activity we are not bound to engage in. See Oyeneye v. Odugbesan (1972) 4 SC 244, and Nwobosi v. A.C.B. Ltd. (1995) 6 NWLR (Pt.404) 658 at 681.
My learned brother, Ogunbiyi, J.C.A. has fully addressed the issues requisite at this stage of the application. I agree with the conclusions made in the lead Ruling and accordingly hereby strike out the motion as incompetent.
All the consequential orders made in the lead judgment are hereby adopted as mine.
Application struck out.
J.E.O. Ogbuli, Esq. (with him, C. I. Ezugu, Esq., Jude Ndukwe, Esq.)For Appellant
Chuma Oguejiofor, Esq. – for the 1st Respondent
Arinze Onyia, Esq. – for the 2nd Respondent
Tagbo Ike, Esq. – for the 3rd RespondentFor Respondent