CITCO COMMUNICATIONS LTD & ANOR v. DAILY TIMES & ORS (2020)

CITCO COMMUNICATIONS LTD & ANOR v. DAILY TIMES & ORS

(2020)LCN/14487(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, July 27, 2020

CA/L/133/2014

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

1. CITCO COMMUNICATIONS LTD 2. MIKANO INTERNATIONAL LTD APPELANT(S)

And

DAILY TIMES OF NIGERIA PLC 2. DSV LIMITED 3. FOLIO COMMUNICATIONS LTD 4. FIDELIS ANOSIKE 5. NOEL ANOSIKE 6. THE ATTORNEY GENERAL OF LAGOS STATE RESPONDENT(S)

RATIO

WHEN AN APPEAL AGAINST THE DECISION OF A LOWER COURT IS DEEMED TO HAVE BEEN BROUGHT

By the provisions of Order 6, Rule 10 of the Court of Appeal Rules, an appeal against the decision of a Lower Court to this Court is deemed to have been brought when the Notice of Appeal has been filed in the Registry of the Court below (Lower Court). See Izedonmwen v. UBN, Plc., (2012) 6 NWLR (Pt. 1295) 1 @ 26, Para. F-G; Dada v. Sikuade (2014) 17 NWLR (Pt. 1435) 72; I. B. W. A. Ltd. V. Pavex Inter. Co. Nig. Ltd. (2000) 7 NWLR (Pt. 663) 105; Okotie v. Olughur (1995) 5 SCNJ, 217; SPDCN Ltd. V. Agbara (2014) 2 NWLR (Pt. 1497) 421. PER GARBA, J.C.A.

WHETHER OR NOT A COURT HAS JURISDICTION TO ENTERTAIN A COURT PROCESS FILED IN ANOTHER COURT

In fact and the law, no Court has the requisite jurisdiction to entertain a Court process filed in another Court; higher or lower in the judicial hierarchy, in the conduct of its own proceeding as each Court, created or established by the Constitution or other statutes, is specifically vested/conferred with distinct judicial power and authority or jurisdiction peculiar to it and no Court can usurp or arrogate to itself, jurisdiction vested in another Court and not conferred on it by either the Constitution or other statutes, as the case may be. Adesina v. Kola (1993) 7 SCNJ, 79, (1993) 1 NWLR (Pt. 298) 182; Egharevba v. Eribo (2010) 9 NWLR (Pt. 1199) 411; Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 169; Lekwot v. Judicial Tribunal (1997) 8 NWLR (Pt. 515) 22. PER GARBA, J.C.A.

WHETHER OR NOT COUNSEL FOR PARTIES IN AN APPEAL SHOULD IDENTIFY AND INDICATE THE GROUNDS OF EITHER AN APPEAL, CROSS APPEAL OR A RESPONDENT’S NOTICE FROM WHICH ISSUES THEY FORMULATE FOR DETERMINATION IN THER BRIEFS OF ARGUMENT

Diligent practice in the Appellate Courts for many years now, require that Counsel for parties in a appeals should clearly identify and indicate the grounds of either an appeal, cross-appeal or a Respondent’s Notice from which issues they formulate for determination in their briefs of argument, are/were derived. See Anuakwua v. Ohia (1985) 5 NWLR (Pt. 40) 150; UBN, Ltd. V. Odusote (1995) 9 NWLR (Pt. 421) 558 @ 577-8; SPDCN Ltd. V. Edamkue (2009) 14 NWLR (Pt. 1160) 1; Ezeja v. State (2006) AFWLR (Pt. 309) 1535; Nig. Ports, Plc v. B. P. Pte.Ltd (2012) 18 NWLR (Pt. 1333) 454.In Akinlagun v. Oshoboja (2006) ALL FWLR (Pt. 325) 53 @ 82, paragr. D. E.,Ogbuagu, JSC, stated that: –“The consequence of failure to do so; relate/distil/identify such issue or issues with the ground or grounds of appeal, is that such issue or issues, is or are liable to be struck out.”PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgement of the Federal High Court (Lower Court) in Suit No. FHC/L/CS/426/2010 entered in favour of the 1st & 2nd Respondents and delivered on the 13th of December, 2013. In brief, the 1st & 2nd Respondents instituted the suit against the Appellants and 3rd – 6th Respondents, and sought declarations, order setting aside the sale of the 1st Respondent’s property by the 3rd-5th Respondents to the Appellants during the pendency of petitions for winding-up of the 1st Respondent and injunction against the Appellants and the 3rd-6th Respondents in respect of the property. Aggrieved by the decision of the Lower Court to enter judgement in favour of the 1st & 2nd Respondents, the Appellants brought the appeal vide the Notice of Appeal dated and filed on 17th of December, 2013, which appears at pages 3036-3045 of Vol. VIII of the Record of Appeal, on fifteen (15) grounds.

Four (4) issues are said to arise from the grounds for decision by the Court in the Appellant’s brief filed on 23rd of November, 2014 as follows: –

“i. Did the Learned Trial Judge not abdicate his judicial responsibility by failing to decide one way or the other the competence of the 1st and 2nd Respondents to rely or invoke the provision of Section 413 of Companies and Allied Matters Act, 1990 to void the sale of the property situate at Plots G1 & 6, 11 and 12 Daily Times Estate (formerly known as Wemabod Estate), Ashogbon Close, off Adeniyi Jones Avenue, Ikeja, Lagos State to the Appellants, when that issue was raised and argued by the parties? (Ground 1 of the Notice of Appeal)
ii. Whether or not the Learned Trial Judge was correct in the interpretation of Section 413 of Companies and Allied Matters Act, 1990 to void the sale of the property situate at Plot G 1, 7, 6, 11 and 12 Daily Times Estate (formerly known as Wemabod Estate), Ashogbon Close, off Adeniyi Jones Avenue, Ikeja, Lagos State to the 1st Appellant when no winding up order was made pursuant to winding-up proceedings in Petition No. FHC/L/1012/09 and No.FHC/L/CP/869/2005 which were relied upon by the 1st and 2nd Respondents. (This issue is tied to ground 2 as contained in the Notice of Appeal).
iii. Was the learned Judge correct in

holding that the 2nd Respondent has the locus standi to institute this action and as such the suit was not an abuse of Court process after having found that the 3rd to 4th Respondents were the majority Shareholders of the 1st Respondent company and none of the reliefs claimed was personal to the 2nd Respondent? (This issue is tied to Grounds 4 and 10 as contained in the Notice of Appeal)
iv. Was the Learned Trial Judge correct in setting aside the sale of the property situate at Plots G 1 & 6, 11, and 12 Daily Times Estate (formerly known as Wemabod Estate), Ashogbon Close, off Adeniyi Jones Avenue, Ikeja, Lagos State to the 1st Appellant by the 1st Respondent having regard to the evidence before the Court? (This issue is tied to Grounds 3, 5, 6, 7, 8, 9, 13 and 14 of the Grounds of appeal).”

For the 1st & 2nd Respondents, their brief of argument was filed on the 13th of May, 2016, deemed on 16th of May, 2016, in which the Notice of Preliminary Objection (NPO) dated 11th of November, 2014 was argued and the following issues are formulated for determination in the appeal.
“(i) Whether the learned trial judge was right in holding

that the 1st and 2nd Respondents were entitled to the Declaratory relief provided for under Section 413 of the Companies and Allied Matters Act voiding dispositions of property of the Company after the commencement of winding up proceedings.
(ii) Whether the learned trial judge was right to follow the established principles in the interpretation of statutes as provided for by superior Courts in the Nigerian jurisprudence in interpreting Section 413 CAMA.
(iii) Whether the learned trial judge was right in holding that the 1st and 2nd Respondents had the locus standi to bring this action and as such the suit is not an abuse of the processes of the Court.
(iv) Whether the learned trial judge was right to hold that upon the success of the principal reliefs the grant of ancillary and consequential orders became necessary and natural.”

The Appellants filed a Reply brief on the 27th of May, 2016 to respond to the 1st & 2nd Respondents objection and other points arising from their brief.

As required by prudent and diligent practice, I would first deal with the objection by the 1st & 2nd Respondents which challenges the competence

of the appeal and in consequence, of the Court to adjudicate over it.

The law is now elementary in the appellate Courts that it is only a competent Notice of Appeal that can properly and validly invoke and vest, the requisite competence or/and jurisdiction on an appellate Court to entertain and adjudicate over an appeal against the decision of a Lower Court. Anadi v. Okoli (1972) 7 SC, 57, (1977) 3 SC, 112, (1977) ALL NLR, 23; Co-op. Bank Ltd. V. Ogwuru (1991) 1 NWLR (Pt. 168) 458; Shell Int. Pet. B. v. F. B. I. R. (2004) 3 NWLR (Pt. 859) 46; Uwazurike v. A. G. Federation (2007) 8 NWLR (Pt. 1035) 1; FBN, Plc. V. T. S. A. Ind. Ltd. (2010) 15 NWLR (Pt. 1216) 247.

The law is also trite that when a Court lacks the requisite competence/jurisdiction to adjudicate over a matter or an appeal in case of the appellate Courts, all steps and proceedings conducted in the matter or appeal will be null and void abinitio and so in futility. Madukolu v. Nkemdilim (1962) 1 ALL NLR, 587; SkenConsult Ltd. V. Ukey (1981) 1 SC, 6; Benin Rubber Producers Lted. V. Ojo (1997) 9 NWLR (Pt. 521) 388; Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99; Umanah v. Attah (2006) 17 NWLR (Pt.

1009) 503.

I should state that a 12 paragraphs Affidavit was filed in support of the objection by the 1st & 2nd Respondents. In addition, there is no record before the Court to indicate or show that the 3rd-6th Respondents to the appeal filed briefs of argument or any other processes for the purpose of the determination of the appeal even though they were duly served with all material processes thereof.

It is however worthy of note that the 3rd – 5th Respondents have filed an appeal No: CA/L/1056/14 against the same judgment of the Lower Court.

Now, the primary ground upon which the objection is premised is that the Appellants failed/refused to pay the costs ordered by the Lower Court in the judgement appealed against to be paid before taking any or further steps in the proceedings. The order of the Lower Court was that: –
“This cost must be paid by the Defendants as adjudged before the Defendants take any or further steps in the proceedings.”

The arguments in support of the objection are that the Appellants as defendants in the case before the Lower Court have the unqualified obligation to obey the order on costs

before filing the notice of this appeal, as a subsisting order of a Court of competent jurisdiction and should not be allowed to disobey it, on the authority of, inter alia, Babatunde v. Olatunji (2000) 2 SC, 9; Govt., GGS. V. Tukur (1989) 4 NWLR (Pt. 117) 592 @ 609 and Alims Nig. Ltd. V. UBA, Plc (2007) ALL FWLR (Pt. 348) 971. It is also the case of the Learned Counsel for the 1st & 2nd Respondents that the Lower Court has nullified the Notice of Appeal filed by the Appellant in its Ruling on the application by the Appellants for stay of execution of the judgement appealed against and so there is no valid Notice of Appeal to sustain the appeal.Agu v. Odofin (1992) 3 SCNJ, 161 @ 172; Adelekan v. Ecu Line NV (2006) 12 NWLR (Pt. 993) 33 @ 56 and Odunze v. Nwosu (2007) 3 NWLR (Pt. 1050) 1 @ 28, on the nature of a Notice of Appeal as the foundation of a valid appeal and Madukolu v. Nkemdilim (supra) indicated to be reported in (1962) ALLNLR (Pt. II) 581 @ 589-90 on the argument that the appeal has not been initiated by due process of the law since it has been nullified by the Lower Court. The Court is urged to so hold and strike or dismiss the entire appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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For the Appellants, an 11-paragraph Counter Affidavit was filed on the 24th of April, 2015 to which were attached copies of documents marked as Exhibits MA1, MA2, MA3 and MA4.

In arguing against the objection, it is pointed out that there is no further Affidavit from the 1st & 2nd Respondents to controvert the averments in the Counter Affidavit, which are therefore deemed established on the authority of Ajomale v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) 266 @ 282-3. On that basis, the Court is urged to hold that by Exhibits MA2 and MA3, it is established that the Appellants paid the costs awarded by Lower Court against them in the judgment appealed against on the 16th of December, 2013, i.e., a day before the Notice of Appeal was filed, thereby complying with the order by the Lower Court.

It is also submitted that the Notice of Appeal though filed in the Lower Court’s Registry, was a process of this Court which that Court has no power to nullify in the Ruling on the application for stay of execution delivered on 11th April, 2014 and reliance was placed on Akinnawo v. Orotusin (2014) 15 NWLR (Pt. 1431) 435 @ 448-9. Then citing

Abba v. SPDCN Ltd. (2013) 11 NWLR (Pt. 1364) 86 @ 101-2, it is argued that the Notice of Preliminary Objection is incompetent since it has all the qualities of a motion because an Affidavit was filed in support thereof when it is supposed to be on point(s) of law alone that do not require facts in an Affidavit. The Court is urged to dismiss the objection.

I should start a resolution of the objection by saying that there is no dispute that the Appellants filed the aforenamed Notice of Appeal against the judgement of the Lower Court which was a final decision of that Court, sitting as a first instant or trial Court, in exercise of the right of appeal guaranteed by the Constitution and in accordance with the requirements of Section 24 (2) (a) of the Court of Appeal Act. As rightly stated by the Learned SAN who settled the Appellants’ brief and Appellants’ Reply brief, the Notice of Appeal is a process of the Court of Appeal and that is clearly borne out by the Heading of the Notice of Appeal filed by the Appellants, i.e., “THE COURT OF APPEAL, HOLDEN AT LAGOS” which is in compliance with the requirement of Order 7, Rule 2(1) of the Court of Appeal Rules, 2016

that a Notice of Appeal shall be in the pro-forma FORM 3 set out in the First Schedule to the Rules. The Notice of Appeal was filed in the Registry of the Lower Court in line with the provisions of Orders 6, Rule 10 and 7, Rule 7 of the Court of Appeal Rules only because the judgement/decision appealed against to which it relates, was delivered by the Lower Court whose Registry is charged with the initial responsibility and duty to compile the Record of all relevant processes filed by the parties and proceedings conducted by that Court in the case culminating into the judgement/decision appealed against and transmit same to this Court for the purpose of hearing and determination of the appeal under the provisions of Order 8, Rule 1. It is only when the Notice of Appeal was duly filed by an Appellant in the Registry of the Lower Court that it will formally be aware of the appeal for the duty to compile and transmit the Record of Appeal to the Court to be undertaken. By the provisions of Order 6, Rule 10 of the Court of Appeal Rules, an appeal against the decision of a Lower Court to this Court is deemed to have been brought when the Notice of

Appeal has been filed in the Registry of the Court below (Lower Court). See Izedonmwen v. UBN, Plc., (2012) 6 NWLR (Pt. 1295) 1 @ 26, Para. F-G; Dada v. Sikuade (2014) 17 NWLR (Pt. 1435) 72; I. B. W. A. Ltd. V. Pavex Inter. Co. Nig. Ltd. (2000) 7 NWLR (Pt. 663) 105; Okotie v. Olughur (1995) 5 SCNJ, 217; SPDCN Ltd. V. Agbara (2014) 2 NWLR (Pt. 1497) 421.
So the Notice of appeal is a process of this Court filed in the Court pursuant to and under the provisions of the Court of Appeal Act and the Rules of the Court and so clearly is not a process filed before the Lower Court for the purpose of its proceedings over which it possesses or can ever claim to possess or have the judicial power and authority or competence to adjudicate.
Being a trial or first instant Court, the Lower Court has no legitimate and lawful authority and power or jurisdiction to entertain, adjudicate over or deal with in any judicial capacity, a Court process filed in and before the Court of Appeal for the purpose of an appeal brought before it. In fact and the law, no Court has the requisite jurisdiction to entertain a Court process filed in another Court; higher or lower in the

judicial hierarchy, in the conduct of its own proceeding as each Court, created or established by the Constitution or other statutes, is specifically vested/conferred with distinct judicial power and authority or jurisdiction peculiar to it and no Court can usurp or arrogate to itself, jurisdiction vested in another Court and not conferred on it by either the Constitution or other statutes, as the case may be. Adesina v. Kola (1993) 7 SCNJ, 79, (1993) 1 NWLR (Pt. 298) 182; Egharevba v. Eribo (2010) 9 NWLR (Pt. 1199) 411; Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 169; Lekwot v. Judicial Tribunal (1997) 8 NWLR (Pt. 515) 22.
Furthermore, the order by the Lower Court on payment of costs awarded against the Appellants, as Defendants, was that the costs must be paid before taking any or further steps in the proceedings before that Court and not before taking any step in proceedings before another Court. The filing of the Notice of Appeal did not constitute and was not taking any or further step in the proceedings of the Lower Court to be a violation, non-compliance or disobedience of the order on costs. That being the position, the Lower Court had no

competence, judicial power and authority to adjudicate over a Court or judicial process not filed in its or for the purpose of its proceedings and its purported nullification of the Notice of Appeal; a Court or judicial process not before it, was ultra vires its judicial authority and power and patently without the requisite jurisdiction.
In addition and finally, there are the unchallenged and uncontroverted averments in paragraphs 3(g) and (1) in the Counter Affidavit of the Appellants and the Exhibits MA2 and MA3 attached thereto, which are deemed true and established in law, showing that the Appellants, in fact, paid the costs awarded against them in the judgement appealed against on the 16th of December, 2013 before filing the Notice of Appeal against the said judgement. Since the costs awarded by the Lower Court against the Appellants had been paid before filing the Notice of Appeal, even if it was a process of that Court or it constituted taking any or further step in the proceedings before it, the Lower Court lacked and was bereft of the judicial power to void or nullify the Notice of Appeal because it was filed in compliance with and obedience to

the order on payment of the costs contained in the judgement appealed against.
Apparently, from whatever angle it is considered, the purported nullification of the Appellants’ Notice of Appeal against decision/judgement of the Lower Court, is not based on any cognisable ground in law and so is unsustainable as a complete misconception and nullity, ab initio. The objection to the competence of the appeal on sole ground of the said nullification by the Lower Court is a gross misconception on the part of Learned Counsel for the 1st & 2nd Respondents of the position of the law on the nature of a Notice of Appeal against the decision/judgement of a Lower Court to this Court. For being a gross misconception and wanting in merit, the objection by the 1st and 2nd Respondents to the competence of the appeal is liable to be dismissed.

Before sealing my decision on the objection, I would mention that the Learned SAN for the Appellants is right when he said that the law is that a preliminary objection, by its nature deals or is supposed to deal strictly with points of law which do not require and should not depend on statements of facts in an Affidavit

which may be or are disputable and so may need further proof. In addition to the statement of Galadima, JSC., in Abba v. SPDCN, Ltd (supra) cited by the Learned Silk for the Appellants, see also the earlier case of A. G., Federation v. ANPP (2003) 18 NWLR (Pt. 851) 182 @ 207.
In this case, since the Appellants have filed a Counter Affidavit in response to the Affidavit filed by the 1st & 2nd Respondents in support of the objection and the objection considered on its merit, no prejudice was occasioned by the filing of the Affidavit by the 1st & 2nd Respondents on an objection which is predicated entirely on a gross misconception of law, as demonstrated earlier. On the whole, the objection for lacking in merit is dismissed.

I now deal with the appeal.
The issues for determination formulated in the Appellants’ brief appear to represent the precise complaints by the Appellants as embedded in the grounds of the appeal and so would be used for decision on it.

However, this position notwithstanding, I should say that as can be noticed easily, the Learned Counsel for the 1st & 2nd Respondents did not identify and indicate the grounds

of appeal from which the issues set out in the brief for determination were formulated since the 1st & 2nd Respondents did not file a cross appeal or a Respondent’s Notice from which Issues could be distilled and submitted for consideration and decision by the Court in the appeal. Diligent practice in the Appellate Courts for many years now, require that Counsel for parties in a appeals should clearly identify and indicate the grounds of either an appeal, cross-appeal or a Respondent’s Notice from which issues they formulate for determination in their briefs of argument, are/were derived. See Anuakwua v. Ohia (1985) 5 NWLR (Pt. 40) 150; UBN, Ltd. V. Odusote (1995) 9 NWLR (Pt. 421) 558 @ 577-8; SPDCN Ltd. V. Edamkue (2009) 14 NWLR (Pt. 1160) 1; Ezeja v. State (2006) AFWLR (Pt. 309) 1535; Nig. Ports, Plc v. B. P. Pte.Ltd (2012) 18 NWLR (Pt. 1333) 454.In Akinlagun v. Oshoboja (2006) ALL FWLR (Pt. 325) 53 @ 82, paragr. D. E.,Ogbuagu, JSC, stated that: –
“The consequence of failure to do so; relate/distil/identify such issue or issues with the ground or grounds of appeal, is that such issue or issues, is or are liable to be struck out.”

A calm reading of the Appellants’ grounds of appeal, reveals that none of the four (4) issues formulated in the 1st and 2nd Respondents’ brief are directly traceable and derivable from the grounds and in law, liable to be struck out for being irrelevant for the purpose of the determination of the appeal in the absence of any grounds at all, from which they are formulated. As Respondents who did not file a cross-appeal or Respondent’s Notice in the Appeal, I agree with the Learned SAN for the Appellants, that the 1st& 2nd Respondents are quarantined and bound in the formulation of issues, to the grounds contained on the Appellants’ Notice of Appeal. See Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177; Amadi v. NNPC (2000) 6 SC (Pt. 1) 66 @ 72; Shitta-Bey v. A. G., Federation (1998) 10 NWLR (Pt. 570) 392; Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137; Nig. Customs Service v. Bazuaye (2006) 3 NWLR (Pt. 967) 303; W. A. C. Ltd v. Yankara (2008) 4 NWLR (Pt. 1077) 323; Eyo v. Okpa (2010) 6 NWLR (Pt.1191) 611. For not being related to and derivable from the grounds contained on the Appellants’ Notice of Appeal, the

Issues formulated in the 1st & 2nd Respondents’ brief are liable to be struck out.

This position of the law as it is, I intend to consider the relevant submissions made in the 1st & 2nd Respondents’ brief in response to the arguments canvassed on the Issues in the Appellants’ brief which I would also consider together.

Appellants’ Submissions:
The submissions under Issue One (1) are that the Lower Court failed to decide the issue joined by the parties as to whether the provision of Section 413 of the Companies and Allied Matters Act, 1990 (CAMA) could be invoked by the 1st & 2nd Respondents to void the sale of the property in dispute by the 1st Respondent to the Appellants. It is pointed out that the Appellant canvassed before the Lower Court that the 1st & 2nd Respondents not being creditors, contributors and receivers could not rely on the said provisions as the basis for the action to set aside the sale and reference was made to Issue 2 submitted by the Appellants in their final address.

The Learned SAN argues that though the Lower Court dealt with the issue of the 1st & 2nd Respondents only in

respect of authority to institute the action, it failed to consider whether either or both of them were competent in law to invoke and rely on Section 413 in the proceedings and that had it considered the issue, it would have come to the conclusion that the section was not available to them and could not have been employed by both of them in the case. The law, it is submitted, is that a Court has the duty to consider and determine all issues properly raised by the parties as failure to do so would amount to a denial of fair hearing, on the authority of Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 @ 435. Section 413 was set out and the Court is invited to, for it can, under Section 15 of the Court of Appeal Act, examine and make a pronouncement on it. According to the Learned Silk, the section was enacted for the protection of creditors and that it could not be employed by the company that sold its assets or by any of the shareholders. Section 418 of CAMA was cited and it is contended that, had the Lower Court given a proper consideration to it, it would have come to the conclusion that Section 413 having been enacted for the benefit of creditors and

contributors, was not available to the 1st Respondent’s company. The Court is urged to hold that since the 1st& 2nd Respondents are neither Creditors nor Contributors as envisaged under Section 418, Section 413 is not available to them.

Definitions of “Contributory” in Section 403 of CAMA and the 6th Edition of Black’s Law Dictionary, at page 329 were referred to and the Court is prayed to resolve the issue in Appellants’ favour.

For Issue two (2), it is submitted for the Appellants that having regard to Sections 413-418 of CAMA, mere presentation of winding-up proceedings which never crystallized into winding-up orders being made, cannot render void any disposition of assets made in the course of the winding-up proceedings, especially as in the case before the Lower Court where the two (2) winding-up proceedings alleged to be pending against the 1st Respondent were either discontinued or withdrawn and were struck out. Exhibits “DW (6)”, “DW10(6)” and “E” are referred to and it is said that it was clear there was no winding-up order against the 1st Respondent resulted from both

Exhibits “B” and “C”. Learned SAN maintains that where no winding-up order has been made pursuant to a winding-up petition, there can be no question of interpretation of Section 413, which should be considered along with other sections and not in isolation as the Lower Court was said to have done. Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) 169 @ 197, said to have been cited before the Lower Court, is referred to and it is contended that it took a rather narrow and simplistic view in interpreting Section 413 by holding that mere presentation of winding-up petition was enough to void disposition of assets made in the course of the proceedings. Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344 @ 399 was cited on the law that absurdity is to be avoided by a Court in the interpretation of statutory provisions and, again, it is said that in the absence of a winding-up order being made pursuant to Exhibits “C” and “D”, Section 413 is not applicable, on the persuasive authority of the English and Indian cases of Re: TW Construction Ltd (1954) ALL ER, 744 @ 747; Miles Aircraft Ltd. (Application for Barclay’s Bank Ltd v. Erlangers Ltd)

(1948) 1 ALL E. R., 225 @ 226 and Orkay Ind. Ltd. V. The State of Maharashtra (2000) 5 BOM CR, 14, wherein Section 153 of the English Company Act and Section 536 of the Companies Act, Indian, both of which are said to be impari materia with the provision of Section 413 of CAMA, were interpreted. The Court is urged to hold that a communal reading of Sections 413-418 can only mean that Section 413 only applies when a winding-up order has been made and to resolve the issue in favour of the Appellants.

Under Issue three (3), the arguments are that the finding of the Lower Court on the locus standi of the 1st & 2nd Respondents to institute the action was at variance with the case put forward by them. That the case of the 2nd Respondent was not predicated on its right to sue as a minority shareholder, but on the judgement Exhibit “D” which had been set aside, as noted by the Lower Court and so it ought to have held that the 2nd Respondent had no locus standi to institute the action in the name of the 1st Respondent since the platform on which the right to sue was based, had been set aside. Exhibits “H”, “2”,

“H3” and “H4” are referred to and it is further contended that the Lower Court rather than holding that the 2nd Respondent has no authority or competence to sue, relied on Section 300 of CAMA to hold that the 2nd Respondent could file the action as a minority shareholder which, even if that was the case of 2nd Respondent, it would lack the authority to institute the action using of the 1st Respondent as the 1st Plaintiff.

On the authority of Osolu v. Osolu (2003) 11 NWLR (Pt. 832) 608 @ 631 and Fagbenro v. Arobadi (2006) 7 NWLR (Pt. 978) 172 @ 183, it is said that the Lower Court was wrong to make a case different from the one put forward by the 2nd Respondent on its authority to institute the action. In further argument, it is said that since the Lower Court found that at the time of the sale in question, the 3rd Respondent had, as majority shareholder, nominated the 4th & 5th Respondents as Directors of the 1st Respondent and that Exhibit “D” had been set aside, it was contradictory to speculate over the outcome of a pending case and that the 2nd Respondent can make a claim to be the majority shareholder if it was

shown that the 3rd Respondent did not actually pay for the shares allotted to it. Nwachukwu v. State (2002) 2 NWLR (PT. 751) 366 @ 385; R. E. A. N., Plc. v. Anumnu (2003) 6 NWLR (Pt. 815) 52 @ 104 and Musa v. Ehidiamhen (1994) 3 NWLR (Pt. 334) 544 @ 566-7 are cited on the duty of a Court not rely on speculations for its decisions. In addition, the Learned SAN submits that it is trite that where any wrong was done against a company, it is only the company that has the locus standi to sue and that looking at the reliefs claimed in the case before the Lower Court, none was maintainable at the instance of the 2nd Respondent as personal to it. Bakare v. Ajose-Adeogun (2014) 6 NWLR (Pt. 1403) 320 @ 350-1 is cited on when a party will be held to be without locus standi in a suit and the Court is called upon to resolve the issue in Appellants’ favour.

The submissions on Issue four (4) are that based on the facts before the Lower Court and its finding that the 3rd Respondent was the majority shareholder who nominated the 4th-5th Respondents as Directors of the 1st Respondent, it erred to hold that the 3rd-5th Respondents had no authority to bind the 1st

Respondent at the time of sale in question.

The Lower Court was also said to be wrong in rejecting the resolutions of the Board of the 1st Respondent for the sale; Exhibits DW83 and DW87, on the ground that they were not filed with the Corporate Affairs Commission (CAC) as required under Section 237(1) of CAMA which is not applicable to the class of resolutions in the Exhibits. Furthermore, it is the case of the Appellants that in setting aside “DW83” and “DW87”, the Lower Court did not consider the established principle of law that a party cannot benefit from its own wrong, since even if the resolutions are required to be filed at Corporate Affairs Commission, the duty was on the 1st Respondent to file them and cannot be allowed to benefit from its own failure to do so.

In the alternative, it is argued that Section 237 merely provided for penalty for non-filing and not the rejection of the resolutions which were admitted without objection. Enekwe v. I. M. B. Nig. Ltd (2006) 19 NWLR (Pt. 1013) 146 @ 181 and Adedeji v. N. B. N. Ltd (1989) 1 NWLR (Pt. 96) 212 @ 226-7 are referred to on the law that a party cannot gain or benefit

from its own wrong and it is submitted that since the 1st Respondent did not seek that the resolutions be set aside, the Lower Court, on the authority of Obueke v. Nnamchi (2012) 5 SC (Pt. 2) 1 @ 34, erred in setting aside the said resolutions, thus granting a relief not sought by the 1st & 2nd Respondents without jurisdiction.

The evidence of PW1; the 2nd Respondent’s witness, under cross-examination at pages 243 and 250-251 of Vol. 1 of the Record of Appeal, was referred to and it is submitted that the burden of whether there was a Board meeting of the 1st Respondent for the approval of the sale in question was an internal affair of the 1st Respondent for which the Appellants cannot be held responsible, but that the witness had stated that he wanted to buy the property in dispute and had paid One Hundred Million Naira (N100,000,000.00) in advance but the sale was aborted because the property was an uncompleted building. In view of the evidence of 4th Respondent, which was to have been discountenanced by the Lower Court, it is further submitted that the decision by Lower Court that the sale in question was done without the consent of the 1st

Respondent cannot be supported. Also, that the 1st Respondent benefited from the sale since by the evidence in Exhibit “D4”, Exhibit H17 and Exhibit “DW9” proceeds from the sale were deposited in its Account with oceanic Bank International, Plc. The Lower Court is said to have no basis for preferring the evidence of PW1, said to be contradictory and inconsistent, to that of DW4 (4th Respondent) which was not challenged on the authority of 1st Respondent for the sale and benefits therefrom.

It is the further case of the Appellants that the Lower Court was wrong in relying on Exhibit “D” as constituting an action pending which affected the sale in question when the property was not the subject matter of the action, relying on Ajuwon v. Akanni (1993) 9 NWLR (Pt. 316) 182 @ 197; Enyibros Foods Processing Co. Ltd v. N. D. I. C (2007) 9 NWLR (Pt. 1039) 216 @ 251 and Bua v. Dauda (2003) 13 NWLR (Pt. 838) 657 on when the doctrine of lis pendens applies.

In the alternative, it is said that none of the reliefs in Exhibit “D” related to the property sold to the Appellants and that since Exhibit “D”

was set aside, the notice of the pendency of the case therein given to the Appellants’ Solicitors was no longer live at the time the judgement against was delivered.

The Court is urged, in conclusion, to allow the appeal based on the foregoing arguments, set aside the judgement by the Lower Court and dismiss the suit before the Court.

1st and 2nd Respondents’ Submissions:
The submissions in response to the Appellants’ arguments on Issue One (1) are contained at pages 12-13 of the 1st & 2nd Respondent’s brief and are to the effect that the Lower Court, at pages 3003 and 3006 of Vol. VII of the Record of Appeal, considered and resolved the Issues 2-4 of the 2nd Appellant and that its finding on illegality entitling the 1st & 2nd Respondents to sue has not been appealed against and remains subsisting and binding.

Also, that the definitions of “contributory” by the Appellants shows that the 2nd Respondent is a contributor to the 1st Respondent and the Court is called upon to resolve the issue in favour of the 1st & 2nd Respondents.

On the 1st & 2nd Respondents’ Issue II, it is

submitted that the interpretation of Section 413 of Companies and Allied Matters Act by the Lower Court is right and consistent with the principles of interpretation of statutes in Nigeria as established in cases including Bello v. A. G. Oyo State (1986) 5 NWLR (Pt. 45) 828; Ejuetami v. Olaiya (2001) 12 SC (Pt. II) 175 @ 187; Adewumi v. A. G., Ekiti State (2002) 1 SC, 47 @ 70-1; A. G., Federation v. A. G., Abia State (2002) FWLR (Pt. 102) 1 @ 216 and The MV Caroline Maersk v. Nokoy Invest. Ltd. (2002) FWLR (Pt. 113) 241 @ 243.

It is submitted that by the provision of Section 414 of CAMA, once winding-up proceedings commence, all assets of a company become “clothed with immunity to judicial process and not when an order winding-up is made.” On the authority of Swiss Air Transport Co. Ltd. V. African Cont. Bank Ltd. (1991) AWLR 39 @ 41 and Adesanoye v. Adewole (2000) 5 SC, 124, it is said that Lower Court was right not to have applied the interpretation in the English and Indian cases cited by the Appellants which would have retrospective effect on the Companies and Allied Matters Act, in view of the decisions in Cotecna Int. Ltd. V. Ivory Merch. Bank Ltd

(2006) 4 SC (Pt. 1) 1 and Obi v. INEC (2007) 7 SC, 268. Learned Counsel for the 1st & 2nd Respondents argues that the submissions by the Appellants that Exhibits “B” and “C” were discontinued and withdrawn completely ignored Exhibits PP6, PP7, PP8 and PP9 which were all pending in respect of the winding-up, at the time of the sale in question and pages 2809-2829 of Vol. VII of the Record of Appeal, are referred. The Court is urged to resolve the issue in favour of the 1st & 2nd Respondents.

On their Issue III, it is submitted again, that the Lower Court was right to hold that the 1st & 2nd Respondents have the locus standi to institute the action since they were affected by the illegality in the sale of the property of the 1st Respondent and that the 2nd Respondent instituted the suit in Exhibit “G” which was later settled for the continued survival of the 1st Respondent and led to the reconstitution of the Board. That the 2nd Respondent stepped into the Suit No. FHC/L/CP/869/2005 to pay the debt liability and instituted the suit in Exhibit “D” to counter the Suit No.

FHC/L/CP/1012/2009 by Afribank for the winding-up of 1st Respondent and to establish that the 3rd Respondent did not pay for any of the shares allotted to them, but used the 1st Respondent to actually pay for its own shares. It is maintained that the 2nd Respondent has very substantial investment and stake in the 1st Respondent to have the locus to institute the action before the Lower Court, on the authority of Oloriode v. Oyebi (1984) 1 SCNLR, 390 and that the Lower Court did not manufacture facts since Exhibit “D” is still valid and subsisting. Learned Counsel said there is none of the features of abuse of Court process in the case before the Lower Court and he urges that the issue be resolved in favour of the 1st& 2nd Respondents.

Under their Issue IV, it is contended that the Lower Court was right to have set aside the sale in question as an ancillary and consequential relief to the principal reliefs in the case. It is also the case of the 1st & 2nd Respondents that the Appellants and 3rd-5th Respondents did not show that the Board of the 1st Respondent met and authorized the sale in question and that the evidence shows that the

4th & 5th Respondents were not Directors of the 1st Respondent in 2004, but only became Directors in 2006 as shown in Exhibits H4, H5, H6, H7 and H8. Section 65 of Companies and Allied Matters Act (CAMA) is referred to and the Court is urged to resolve the issue in 1st & 2nd Respondents’ favour. Ogbahon v. Reg. Trustees of CCCG (2002) 1 (Pt. 749) 675 @ 701 and Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 266 @ 297 are cited on the power of the Lower Court to set aside the sale in question as a consequential relief which need not to have been specifically claimed and it is further argued that the 3rd-5th Respondents failed to show evidence that the 1st Respondent benefited from the sale in question. It is the case of Learned Counsel that the evidence of PW1 was not contradictory or inconsistent, materially or substantially, citing Makinde v. Akinwale (2000) 2 NWLR (Pt. 645) 435 @ 450; Gira v. State (1996) 4 NWLR (PT. 443) 375 @ 389 and Wachukwu v. Onwunwanne (2011) 14 NWLR (Pt. 1266) 1 on when evidence is said to be contradictory or inconsistent as to affect its credibility.

In further argument, Learned Counsel said that the principle of

lispendens, as enunciated in Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 @ 445-6 applies to the case before the Lower Court in view of the suits in Exhibits “B1”, “B2” “C”, “Pp6”, “Pp7”, “Pp9” and Exhibit “D” which were pending but ignored by the Appellants and 3th-5th Respondents at the time of the sale of the property in question and the Court is urged to resolve the issue in favour of the 1st -2nd Respondents.

In conclusion, the Court is prayed to dismiss the appeal in its entity and uphold the judgement of the Lower Court.

In the Appellants Reply’s brief, it is said that the 1st & 2nd Respondent’s brief did not answer the arguments under Issue 1 in the Appellants’ brief and so, on the authority of Okongwu v. NNPC (1989) 4 NWLR (Pt. 115) 296 @ 309, the 1st & 2nd Respondents are deemed to concede to the points canvassed therein.

The 1st & 2nd Respondents’ Issue II is said to be purely academic in nature and did not address the live issue of whether the Lower Court was right to have invoked Section 413 to set aside the sale in

question when no winding-up order was made by the 1st Respondent.

Again, the 1st & 2nd Respondents brief was said to have missed and did not answer the Appellants’ arguments under Issue III and it is argued that they have been unable to show the locus standi of the 2nd Respondent to institute the action in the name of the 1st Respondent.

On Issue IV, it is submitted that in an appeal against the main reliefs, ancillary or consequential reliefs stand or fall with their fate and the law is that it is not every pronouncement by the Lower Court that should constitute an appeal. Further, that the Appellants have appealed against the order setting aside the sale in question and argued same under their Issue 4. Exhibit “DW108” is referred to as evidence that the 1st Respondent benefited from the sale in question as the 1st & 2nd Respondents obtained an injunction to prevent the 1st – 4th Respondents from clearing the printing machines imported with part of the proceeds of the same for the 1st Respondent.

Resolution:
As a foundation, the Learned SAN for the Appellants is right that the law requires all Courts to consider,

deal with, determine and make pronouncements on all relevant and material issues properly raised and placed before them by the parties in all cases, before arriving at their final decisions therein. This is one of the firmly established principles of law in our judicial jurisprudence that is so well known such that it ordinarily, requires no citation of judicial authorities in which it was repeatedly stated and restated. However, for completeness, Fawehinmi v. Abacha (1996) 9 NWLR (Pt. 475) 710; Brawal Shipping Ltd. V. Onwudike Co. Ltd. (2000) 11 NWLR (Pt. 678) 387; Kraus Thompson Org. Ltd v. Univ. of Calabar (2004) 9 NWLR (Pt. 879) 631; Abubakar v. Yar’Adua (2008) 19 NWLR (Pt. 1120) 1; S. C. C. Nig. Ltd v. Anya (2012) 9 NWLR (Pt. 1305) 213; Egharevba v. FRN (2016) 10 NWLR (Pt. 1521) 431 would suffice. The law is also that where a Court omits, fails or refuses to consider, determine and make pronouncement on material issues placed properly before it by any or all the parties before arriving at its final decision in a case and the omission, failure or refusal occasioned prejudice to the case of the party affected thereby resulting in a miscarriage of

justice, the decision would not stand on the ground that the right to fair hearing of the party affected, was breached or violated in the determination of its rights and obligation by the Court. Judicial authorities on this position of the law, like the one above, galore and include the cases cited supra, as well as A. G. Federation v. A. I. C. Ltd (2000) 10 NWLR (Pt. 675) 293; Osasona v. Ajayi (2004) 14 NWLR (Pt. 894) 527; Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Shoy Int. Ltd. V. A. E. P. B. (2013) 8 NWLR (Pt. 357) 625; Abiola v FRN (2015) 7 NWLR (Pt. 1457) 125.

In this appeal, the complaint by the Appellants is that the Lower Court failed to consider and determine the issue of the competence of the 1st & 2nd Respondents to rely or invoke the provisions of Section 413 of Companies and Allied Matters Act to void the sale in question, which was said to have been raised and argued by the parties. In order to find out whether the Appellants’ complaint is right, resort must be had to the issues raised and argued by the parties in their Final Addresses as well as the judgement appealed against,

though may be lengthy. The issues first and here they are. In the 1st Appellant’s (as 1st Defendant) unpaginated final Address dated the 27th but filed on 29th of November, 2012 before Lower Court (which appears at pages 2556 to 2575 of Vol. VI of the Record of Appeal) the three (3) issues submitted for determination in the case were as follows:
“l. Whether going by the pleadings and evidence before the Court, the plaintiff have established that winding up orders were made against the 1st Plaintiff Company pursuant to Section 413 of the Companies and Allied Matters Act, 1990, to void the sale of the property situate at Plots G1 7 6, 11 and 12 Daily Times Estate (formerly known as Wemabod Estate) Ashogbon Close, off Adeniyi Jones Avenue, Ikeja, Lagos State to the 1st Defendant.
II. Whether the sale of the 1st Plaintiff’s property situate at Plots G1 & 6, 11 and 12 Daily Times Estate (formerly known as Wemabod Estate), Ashogbon Close, off Adeniyi Jone Avenue, Ikeja, Lagos State to the 1st Defendant is not caught by the doctrine of lis pendens to void same.
III. Whether having regard to the pleadings, the evidence and

circumstances of this case, the sale of the property situate at Plots G1 & 6, 11 and 12 Daily Times Estate (formerly known as Wemabod Estate) Ashogbon Close, off Adeniyi Jones Avenue, Ikeja, Lagos State to the 1st Defendant was done without the consent or authority of the 1st Plaintiff.”

The issues submitted in the 2nd Appellant’s (2nd Defendant) final Address, dated the 24th, but filed on the 27th August, 2012 (which is at pages 2417 to 2456 of Vol. VI of the Record of Appeal) were thus: –
“(1) Whether having regard to the parties before the Court, the reliefs claimed as well as the facts generally relevant to the transaction forming the subject matter of this suit, has the jurisdiction of the Court been invoked bonafide or put simply is this action not an abuse of the Court’s process.
(2) Have the Plaintiffs established before the Court the fact that any winding up order has been made against the 1st Plaintiff’s company Daily Times of Nigeria Plc so as to be able to invoke the provisions of Section 413 of CAMA to void the transaction forming the subject matter of this action.
(3) Whether having regard to

the evidence before the Court, the sale to the 1st Defendant of the property situate at plots G1 and 6, 11 and 12 Daily Times formerly known as Wemabod Estate Ashogbon Close off Adeniyi Jones Avenue, Ikeja, Lagos State by the 1st Plaintiff, the said transaction could be held to have been without the consent or authority of the 1st Plaintiff.
(4) Whether the doctrine of lis pendens can be invoked to void the sale to the 1st Defendant of the property situate at plots G1 & 6, 11 and 12 Daily Times formerly known as Wemabod Estate Ashogbon Close off Adeniyi Jones Avenue, Ikeja, Lagos State by the 2nd Plaintiff and if so at whose instance.
(5) Whether 2nd Plaintiff has disclosed any reasonable cause of action against the 2nd Defendant in this action.”

For the 3rd-5th Respondents (as 3rd -5th Defendants), the three (3) issues nominated for decision in their Final Address dated and filed on 1st of November, 2012 (it appears at pages 2489 to 2502 of Vol. VI of the Record of Appeal) were in the following terms: –
“(1) Whether the 1st Plaintiff having taken benefit of the proceeds of sale of its property and assets can allege

illegality relying on the provisions of Section 413 of the Companies and Allied Matters Act, 1990 to urge this Honourable Court to set aside the sale.
(2) Whether the property, the subject matter of the litigation having been sold subject to a board resolution validly passed can be set aside by this Honourable Court without any relevant and material evidence in contradiction.
(3) Whether the Plaintiffs possess the legal capacity to institute the action and to seek the reliefs set out in the writ of summons and statement of claim.”

In the 6th Respondent’s (6th Defendant) Final Address dated 12th, but filed on the 15th of November, 2012 (which is at pages 2515 to 2526 of Vol VI of the Record Appeal), the following four (4) issues were submitted for determination by the Lower Court: –
“i. Whether the depositions contained in the Plaintiff’s witness statement on Oath filed in reply to the 6th Defendant Amended Statement of Defence dated the 16th February, 2012, is competent.
ii. Whether the 6th Defendant is under any legal obligation to enter caveat/caution on the Registered Deed of the 1st Plaintiff.

iii. Whether this Honourable Court can make prohibitive order to restrain the 6th Defendant from doing an act already completed.
iv. Having regard to the claim made in this action, whether the Plaintiffs have disclosed a reasonable cause of action against the 6th Defendant.”

Lastly, the 1st & 2nd Respondents’ (as Plaintiffs) in the Final Address dated 2nd and filed on the 4th of January, 2013 (which Lower Court complained was “a very lengthy Written Address” in its judgement at pages 3001 of Vol. VII of the Record Appeal), formulated the following issues for decision by the Lower Court:
“(i) Whether Section 413 CAMA is applicable to this case by virtue of Winding Up Proceedings pending against the 1st plaintiff at the time the transaction to dispose of its property was entered into and if the answer is in the affirmative; whether any transaction to dispose of the 1st plaintiff’s property in such circumstances in NOT illegal, null and void.
(ii) Whether the 1st plaintiff’s properties or assets can be validly alienated, sold and transferred by any individuals without the mandate or authority of the

Board of Directors or general meeting of the 1st plaintiff.
(iii) Whether parties or persons whose status in the 1st plaintiff company were subject of challenge by law suit and brought to notice of relevant parties can at the same time transact in the properties of the said company without being caught by the doctrine of lis pendens.
(iv) Whether in the circumstances of this case, it is not proper to make consequential order setting aside any purported alienation, assignment, sale or transfer of the 1st plaintiff’s right, title and interests and make further consequential orders directing the return of all title documents and also make consequential injunctive orders restraining recognition, approval and/or granting consent by Lagos State Government and make consequential injunctive order restraining entry, encroachment and/or trespass on the plaintiffs properties and also put a stoppage by injunction be restraining meddlesomeness, sale or alienation of the Plaintiff’s properties.”

A calm and careful reading of the above issues raised by all the parties, but particularly the Appellants and 3–6th Respondents as Defendants

before the Lower Court, would easily show that not one (1) of them specifically raised and submitted the issue of the 1st and 2nd Respondents’ competence to rely or invoke the provisions of Section 413 of CAMA to void the sale of the property in dispute, to the Lower Court for its determination in the case. Specifically, in none of the issues of the two (2) Appellants was the competence of the 1st and 2nd Respondents to rely or invoke the provisions of Section 413 of CAMA to void the sale of the property in dispute, raised even remotely or by apparent necessary implication.

None of the issues raised by the other parties, as stated earlier, challenges the competence of the 1st and 2nd Respondents to invoke and rely on Section 413 of CAMA to void the sale in question. The record of the issues raised and submitted by all the parties to the case before the Lower Court and to this appeal, as borne out by the Record of Appeal; which bind both the parties and the Court for the purpose of hearing and determination of the appeal; see NBC, Plc vs. Okwejiminor (1998) 8 NWLR (Pt. 561) 295, Texaco Panama Inc. vs. SPDCN Limited (2002) 5 NWLR (Pt. 759) 209,

Adegbuyi vs. A.P.C. (2015) 2 NWLR (Pt. 1442) 1, Brittania-U Nigeria Limited vs. Seplat Petroleum Development Company Limited (2016) 4 NWLR (Pt. 1503) 541, shows clearly that the neither the Appellants nor the other parties to the appeal raised and submitted the issue which the Appellants, by and under their issue 1 complained of, to the Lower Court for determination in their final addresses. For that reason, the complaint of failure by the Lower Court to consider and determine the said issue has no factual and legal basis to deserve further consideration by the Court. The need for resort to the judgement of the Lower Court in order to find out if indeed it considered and determined such an imagined and none existent issue, abates, as a consequence.

The issue 1 of the Appellants is resolved against them.

The complaint of the Appellants under their issue 2 is that the Lower Court is/was wrong to hold that the provision of Section 413 of CAMA is applicable to assets of a company once proceedings for its winding up were commenced and not until an order for winding up was made. The issue or complaint turns on the proper interpretation of the provision of

Section 413 of CAMA which says: –
“In winding up by the Court, any disposition of the property of the company, including things in action and any transfer of shares, or alteration in the status of the members of the company, made after the commencement of the winding up shall, unless the Court otherwise orders, be void.”
Perhaps, I should restate the law on the established principles or canons of judicial interpretation of statues generally, including the constitution as enunciated in the cases cited in the parties’ briefs.
The fundamental object and primary purpose of judicial interpretation of statutes for the purpose of their application to facts of a given case, is to ascertain and determine the intention of the legislature; the law giver, from the words and context of the provisions of the statute in question. Ansaldo Nigeria Limited vs. N.P.F.M.B. (1991) 2 NWLR (Pt. 174) 392, Ojukwu vs. Obasanjo (2004) 7 SC (Pt. 1) 117, Idehen vs. Idehen (1991) 6 NWLR (Pt. 198) 382, Okike vs. LPDC (2005) 3-4 SC, 49, N.P.A. Plc vs. Lotus Plastic Limited (2006) ALLFWLR (Pt. 297) 1023, Olofu vs. Itodo (2010) 18 NWLR (1225) 545,

Eze vs. Governor, Abia State (2010) 15 NWLR (Pt. 216) 324. For that reason, it is a cardinal principle of interpretation that if and when the words and other expressions employed and used by the legislature in making or enacting a statute are clear and unambiguous, the words shall be assigned their plain, grammatical and ordinary meanings for they best, in such circumstances, give an indication and show the intention of the legislature in providing for the statute. In such situations, the duty of a Court does not call for interpretation, strictly so called, but ascribing the ordinary, natural and plain meanings to the words in the straight forward way or manner they were used in the statute and so there will be no need to have resort to any extraneous aids for interpretation. Nwankwo vs. Yar’Adua (2010) 12 NWLR (Pt. 209) 578, Ekeogu vs. Aliri (1991) 3 NWLR (Pt. 179) 258, Atuyeye vs. Alamu (1987) 7 SCNJ, 98, Ndoma-Egba vs. Chukwuogor (2004) 2 SC (Pt. 1) 107, Nnonye vs. Anyichie (2005) 1 SC, (Pt. II) 96, Agbareh vs. Mimrah (2008) 2 MJSC, 134, Ojukwu vs. Obasanjo (supra). This approach is commonly known as the golden, literal rule or plain meaning rule and is

prescribed for all statutory construction by the Courts except where it will lead to manifest absurdity which cannot be attributed to the legislature.
The rule does not admit of importation into or exclusion of words not used or used in the statute by the Courts for whatever reasons in the guise of interpretation.
The Court cannot and is not to ascribe meanings to clear, plain and unambiguous provisions of a statute in order to make such provision conform to the Court’s own view of what they ought to be in accordance with what should be the tenets of sound social policy. See Attorney General of Federation vs. Guardian Newspaper Limited (1999) 9 NWLR (Pt. 618) 187, Okon vs. Ubi (2006) ALLFWLR (Pt. 328) 717, NPA, Plc vs. Lotus Plastics Limited (supra), Ararume vs. INEC (2007) 9 NWLR (Pt. 1038) 127, Buhari vs. Obasanjo (supra), Fawehinmi vs. I.G.P (2000) 7 NWLR (Pt. 665) 481 @ 529, Obomhense vs. Erhahon (1993) SCNJ (1993) SCNJ, 497, (1993) 1 NWLR (Pt. 303) 22, Araka vs. Egbue (2003) 17 NWLR (Pt. 848) 1, NDIC vs. Okem Enterprise Limited (2004) 10 NWLR (Pt. 880) 107, L.A.C. vs. A.A.N. Limited (2006) 2 NWLR (Pt. 963) 72, Amasike vs. Reg-General, CAC

(2010) 13 NWLR (Pt. 1211) 337, Yusufu vs. Obasanjo (2005) 18 NWLR (Pt. …) 119, Okoye vs. COP (2015) LPELR……
In its judgement, the Lower Court stated, at page 3016 of Vol. VII of the Record of Appeal, inter alia, after setting out the provision of Section 413 of CAMA, that: –
“Think this is a straight forward issue. Where words of an enactment are clear and unambiguous, it is the duty of the Court to give effect to them. In my view a winding up order need not be made before the provisions of Section 413 would become operational. A liquidator need not be appointed before Section 413 would become effective.”
From this concise statement, the Lower Court’s findings are that: –
(a) The provisions of the section are clear and unambiguous,
(b) It has the duty to give effect to the provisions,
(c) A winding up order needs not be made before the provisions become operational.
(d) A liquidator needs not be appointed before the provisions become effective.
In line with the settled principles of interpretation restated earlier, I am in complete agreement with Lower Court that the words used and

employed by the legislature in enacting the provisions of Section 413 are clear and unambiguous and for that reason, the Lower Court had the duty to give effect to them in their plain, ordinary and grammatical meanings. I would, in addition, say that the words in the provision of Section 413 of CAMA are simple and precise on their purport which is to protect the property, the shares, and the status of a company in winding up by the Court, after the commencement of the winding-up. By the provisions, unless or except the Court winding up the company otherwise orders or directs, any disposition of the property, including things in action, transfer of shares and alteration of the status of the company, after the commencement, beginning or start of the winding up, shall be and are rendered legally void or nullified statutorily. Simply, and beyond legally viable arguments, after the commencement or beginning of winding up of a company by the Court, the provisions of Section 413 will become applicable and effective to any disposition of the property, transfer of shares and alteration of the company in question, carried out, done or undertaken, to nullify and render

same void by operation of the law unless the Court otherwise orders or directs. A void act is one which has no legal effect or consequence, one which does not confer and is in law, incapable of conferring any legal right or title whatsoever, and it does not and cannot also impose any legal obligation or liability on any one or make any party liable to suffer any penalty or disadvantage in any case. See Okafor vs. Attorney General, Anambra State (1991) 6 NWLR (Pt. 200) 659, Buraimoh vs. Karimu (1999) 9 NWLR (Pt. 618) 310,Saleh vs. Monguno (2003) 1 NWLR (Pt. 801) 221, Oghoyone vs. Oghoyone (2010) 3 NWLR (Pt. 1182) 564, Dukul vs. Sambo (2006) ALLFWLR (Pt. 295) 746, Oyeneyin vs. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265.
Consequently, in their ordinary, plain and grammatical meanings, within context they are used and their explicit purport, the words in the provision of Section 413 of CAMA preserve and protect the entire assets in terms of physical property, shares and the status of a company in winding up by the commencement of the winding up. The Appellants and the 1st and 2nd Respondents in this appeal do not dispute the clear and unambiguous purport of the

provisions, but the Appellants strenuously argue and maintain that that the provisions only apply to preserve and protect the assets, shares and status of members of a company after a winding up order was made by the Court at the conclusion or end of the winding up proceedings. However, this argument either did not advert to the clear and express words of the provision or opted to ignore the plain grammatical meanings of the words “after the commencement of the winding up” deliberately employed and specifically used by the legislature in enacting the provisions.
I should break down the words and look at their individual ordinary meanings because it is a recognized principle of interpretation that the maker of any law does not use any word in vain nor indulge in tautology or in suplusage and so every word in a statute must be construed and given effect to in order to discover the real intention of the law maker.
See Idehen vs. Idehen (supra) also reported in (1991) 7 SCNJ (Pt. II) 196 @ 298, Bronik Motors vs. Wema Bank (1983) 1 SCNLR, 296, Tukur vs. Governor, Gongola State (supra), Oninbi vs. NEC (1998) 5 NWLR (Pt. 94) 323. The first of

the words is “after” which is defined at page 20 of the 6th Edition of Advanced Leaner’s Dictionary of Current English, edited by Sally Wehmeir, to mean, inter alia, “later than something or following something in time”, next to and following somebody or something in order of importance”.
In Babajo vs. Bawa (2011) LPELR-9204-(CA) this Court defined the word “after” used in the 1st schedule to the Electoral Act as follows: –
“The word “after” has been defined by the concise Oxford Dictionary at page 17 to mean inter alia’ later in time, following in time, later than; at a later time than; coming at a later time; behind; happening at a time subsequent to a reference time; later on; later; subsequently.”
The next operative word is “commencement” which comes from the word “commence” defined inSterling Bank, Plc vs. Falola (2014) LPELR-22529(CA) by Augie, JCA (now JSC) citing Dictionary.com, to mean “to begin, start”.
In reference to a legal action before a Court of law, this Court, per Odili, JCA (now JSC) in

International Standard Securities Limited vs. UBN (Registrars Dept.) (2009) LPELR-8788 (CA) referred to Egbe vs. Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ 20, and defined “commencement of action” as “nothing other than when the suit is first instituted, that is filed either by a writ or originating process.”
The 6th Edition of Advance Learners Dictionary, referred to earlier, at page 223 defines the word “commencement” as “1. (Formal) beginning.”
On its part, the last operative word is “winding-up” which, according to Rupert Haigh in Legal English Glossaries, at page 225, means “to bring a company to an end and distribute its assets to its creditors”. The 6th Edition of the Advanced Learner’s Dictionary, referred to earlier, at page 1367 defines “wind-up” to mean, among others, “to stop running a company, business, etc. and close it completely.”
In the Company Law and Practice in Nigeria, 3rd Edition by Dr. J.O. Orojo, at page 455, it was stated that “the normal way of putting an end to the “life” of a company is by winding-up.”

The CAMA did not define “winding-up” in Section 567 which is the interpretative section for words used in the part of the Act that deals with winding-up of a company. In the recent case of Oyo State Paper Mills Ltd. V. Nibel Co. Nig. Ltd. (2017) 3 NWLR (Pt. 1552) 215, “winding-up” was defined as “a process whereby the life of a company is brought to an end; the process of killing a corporate person and appointing an undertaker for its funeral, the liquidation of a company so that assets are distributed to those entitled to receive them.” See also Oredola Okeya Trading Co. Ltd. V. BCCI (2014) LPELR-22011(SC).
By these definitions of the operative words “after the commencement of winding-up” in Section 413, by their ordinary, plain and grammatical meanings, communally, is after the formal beginning, start, initiation or institution of the judicial process of ending the life of a company before a Court, as prescribed in Section 410 of CAMA, by way of a petition presented for winding-up pursuant to the provisions. The provision of Section 415 provides that: –
“415 Commencement of a winding up by the Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(1) Where, before the presentation of a petition for the winding up of a company by the Court, a resolution has been passed by the company for voluntary winding up, the winding up of the company shall be deemed to have commenced at the time of the passing of the resolution, and unless the Court, on proof of fraud or mistake, thinks fit otherwise to direct, all proceedings taken in the voluntary winding up shall be deemed to have been validly taken.
(2) In any case other case, the winding up of a company by the Court shall be deemed to commence at the time of the presentation of the petition for the winding up.”
The provisions in Subsection (2) emphatically prescribes that the winding-up of a company by the Court, except voluntary winding-up provided for under Subsection (1), shall be deemed to commence at the time of the presentation of the petition for winding-up in the Court.
In the result, by their ordinary, plain and grammatical meanings; since the they are very clear, unambiguous and even precise, the provisions of Section 413 of CAMA become applicable, operative, effective to the property, shares and status of members of a company

immediately and promptly upon and after the presentation of a petition for its winding-up before or in Court as provided for in the provisions of Section 410. The formal presentation of a winding up petition of a company before the Court automatically ignites and invokes the application of the provisions of Section 413 of CAMA to the property, shares and statues of the members of the company in question.
This was the decision of the Court in the case ofUtuk vs. The Liquidator Utuks Construction Marketing Company Limited (2009) LPELR-4322(CA) @ page 20-21 where Omokiri, JCA, stated that: –
“There is no dispute that the properties of the company were sold after proceedings for winding up has commenced, therefore, their sale whether by auction or by private treaty is void. The provision of Section 413 is mandatory, following the use of the word “shall”. As used in statues, contracts or the like, the word is generally imperative or mandatory. In common parlance, and in its ordinary signification, the term “shall” is a word of command and one which has always or which must be given a compulsory meaning as demoting

obligation. The word in ordinary usage, means must and is inconsistent with the concept of discretion. Thus when the word “shall” is “used in the context of a statute or in ordinary parlance, it means a command to do or not to do a particular act. There is no question of the exercise of discretion to do or not to do the envisaged act. See Ogidi vs. State (2005) 5 NWLR (Pt. 918) 286 at 327. In Onochie vs. Odogwu (2006) 6 NWLR (Pt. 975) 65 at 89 – 90, the Supreme Court held that: – “The word “shall” is used to express a command or exhortation, or what is legally mandatory. Its use in a statute or rules of Court makes it mandatory that the rule or provision must be observed. In the instant case, any properties of the company sold after the winding up proceedings started or commenced in February, 1993 is void. The question of the parties knowing or being aware of the winding up proceedings does not arise in the circumstance.”
The learned SAN for the Appellants has argued that having regard to the provisions of Section 418 of CAMA, where no winding up order was made pursuant to a winding up petition, there can be

no question of the interpretation or construction of Section 413. Section 418 provides that: –
“An order for winding up a company shall operate in favour of all the creditors and all the contributories of the company as if made on the joint petition of a creditor and of a contributory.”
What can easily be observed from these provisions is that they provide for the effect of a winding up order made by the Court at the end or conclusion of the winding up proceedings in respect of a company. On its part, Section 413, as shown before now, provides for the preservation and protection of the assets; property, shares and status of members of a company, on, upon and after the presentation of a winding up petition in respect of the company, in or before the Court, i.e. commencement of the winding up as stated in Section 415 above. So the two (2) Sections; 418 and 413 deal with and provide for completely unrelated, unconnected situations and effect in the process of the winding up of a company by the Court and cannot reasonably be said that the application of one is a condition precedent or dependent on the application of the order.

Specifically, the application of Section 413 does not depend on the application of the provision of Section 418 and it is applicable to winding up proceedings of a company after the commencement, beginning or start of the proceedings by the presentation of a petition for the winding up in or before the Court. Section 413 is applicable to winding up of a company before the order in Section 418 for winding up of the company was made at the end or conclusion of the winding up proceedings.
The above said, I wish to point out that the argument of the Learned Silk for the Appellants on the point at paragraph iii on page 11 of the Appellants’ Brief is not that the provisions of Section 413 do not apply after the commencement or beginning of winding-up by the presentation of a petition before the Court, but rather:
“We submit that having regard to the provision of Section 418 of Companies and Allied Matters Act, 1990, where no winding up order has been made pursuant to a winding up petition, there can be no question of any construction or interpretation of Section 413 of Companies and Allied Matter Act, 1990.”
Sections 412, 414 and

417 of Companies and Allied Matter Act were said not to have been given due regard by the Lower Court in its interpretation of section of Section 413.
The law is settled, by the authority of Ojukwu vs. Obasanjo (supra) cited in the Appellants’ Brief and legion of other cases including Obayuwana vs. Governor, Bendel State (2002) 12 SC, 147, Buhari vs. Obasanjo (2003) 17 NWLR (Pt. 850) 587, FRN vs. Osahon (2006) ALL FWLR (312) 1975, Ibrahim vs. Fulani (2010) 17 NWLR (Pt. 1222) 241, NPA, Plc vs. Lotus Plastics Limited (supra) Omoijahe vs Umoru (1999) 5 SCNJ, 280, Martins vs. COP (2012) 12 MJSC (Pt. II) 73, Ibekwe vs. Maduka (1995) 4 NWLR (Pt. 392) 1, that provisions of a statute should not be interpreted in isolation of other provisions, which should be considered as a whole, one in relation to the other, for the purpose of ascertaining the intention of the legislature.
Now, Section 412 deals with stay of proceedings by the Court when an action or other proceeding as against company is instituted or pending in any Court against a company under winding up.
Section 414 on its part, voids any attachment, sequestration, distress or execution in force

against the estate or effects of a company after the commencement of the winding up by the Court.
Section 417 provides that no action or proceedings shall be proceeded with or commence against a company if a winding up order is made or a provisional liquidator is appointed.
The learned SAN for the Appellants is right and I entirely agree with him, that the combined purport, aim and intention in the provisions of Section 412, 413, 414 and 417 of the Companies and Allied Matter Act is to protect the assets of a company while it undergoes and during winding up proceeding so that its assets are not dissipated before the winding up order is made at the conclusion of the proceeding.
With this submission, the learned SAN posits that the protection and preservation of the assets of the company takes effect and becomes applicable while the company undergoes winding up, and so during the pendency of the winding up proceeding, so that the assets would not be dissipated before the company is wound up by way of a winding up order to be made by the Court at the end or conclusion of the proceeding.
This position is specifically and precisely what the

provision of Section 413 provides for and seeks to expressly and clearly do; i.e. to preserve and protect the assets of a company after the commencement or beginning of the winding up proceeding by the presentation of a petition to the Court as prescribed by the Act, to await the conclusion and outcome of thereof so that the assets would not be annihilated, destroyed, wasted or otherwise dissipated before then which will render the proceedings nugatory and foist on the Court, a fait accomplit. It therefore stands to reason that the provision of section specifically aims, seeks and provides for the general and community purport and real intention of the legislature in the provisions of Section 412, 414, 417 and 418; i.e. the preservation and protection of the assets of a company undergoing winding up and during the pendency and before the conclusion and outcome of the winding up proceeding by the Court. To be meaningful and effective, the protection must take effect and become operative after the commencement or beginning of the winding up by the presentation of a petition in or before the Court and NOT at the conclusion of the winding up proceeding when an

order winding up the company is made, as the outcome of the petition.
The assets need preservation and the protection provided for in Section 413 even if (and more, when) the outcome of the petition did not result in winding up order and a winding up order is refused and not made by the Court. With respect, it will be absurd to say that the protection of the assets of a company undergoing winding up by the Court provided for in Section 413 only applies where the petition for winding up succeeds at the conclusion of the proceedings and a winding up order is made by the Court for the company to be wound up and not where the petition fails or did not succeed and the winding up order is not made by the Court, but rather one striking out or dismissing the petition, as the case may be, is made by the Court in or at the end or conclusion of the proceeding.
I am unable to accept the argument that the provision of Section 413 of Companies and Allied Matter Act only applies at the conclusion of winding up proceeding against a company when a winding up order is made by the Court in the above premises.
Like I have stated and demonstrated before now, the

words in the provision of Section 413 are clear, unambiguous and precise and the duty of the Court is to ascribe to them their explicit ordinary, plain and grammatical meanings in giving them effect without the need to have resort to external or extraneous aids. Since the words do not require or need interpretation by established principles of law and have been only interpreted by our Courts in Utuk case (supra), there was/is no need for resort to interpretation of similar provisions in foreign enactments and decision of foreign Courts thereon, of whatever status, which are merely persuasive; see Adesanya vs. President, Republic of Nigeria (1981) 5 SC, 12, Araka vs. Egbue (2003) 17 NWLR (Pt. 848), Olafisoye vs. FRN (2004) 4 NWLR (Pt. 864) 580, A. Oladeji Nigeria Limited vs. Nigeria Breweries Plc (2007) LPELR-160 (SC) in construction and application of the provision by the Lower Court.
Undoubtedly, whenever the need arises in appropriate cases, resort may be had to in the interpretation of provisions of foreign statutes/laws which are similar to those of our local statutes/laws, where the provisions of our statutes/laws are not clear and unambiguous to be

ascribed their plan, ordinary and grammatical meanings or where an absurdity will result therefrom, and so would require interpretation and where the provisions have not been interpreted by the Courts in Nigeria. In such cases, decision by foreign Courts on interpretations of such relevant similar foreign statutes/laws provide veritable aids for our Courts and often guided them in duty of interpretation of our local statutes/laws.
Like I stated before, the provisions of Section 413 do not require interpretation but ascription of plain, ordinary and grammatical meanings to the clear, simple and unambiguous words deliberately and specifically employed or used by the law giver to indicate and express its intention and purport of the provisions. I am of the firm view that the provisions should not be subjected to foreign interpretation of statutes which may be similar thereto in order to conform to what should or ought to be their plain, ordinary and grammatical meanings or what should be the tenets of sound commercial policy. Attorney General of Federation vs. Guardian Newspapers Limited (supra) Okon vs. Ubi (supra), NPA, Plc vs. Lotus Plastics Limited

(supra), Buhari vs. Obasanjo(supra) Ararume vs. INEC (supra).
For the above reasons, both Lower Court and the learned counsel for the 1st and 2nd Respondents are right that the provision of Section 413 of CAMA applies and becomes operative and effective upon the presentation, initiation or filing of a petition for the winding up of a company in or before the Court; that is, after the commencement of the winding up in or before the Court as provided therein. Issue 2 is accordingly resolved against the Appellants.

The complaint of the Appellant under issue 3 is that the Lower Court was wrong to hold that the 2nd Respondent had the locus standi to institute the action after finding that 3rd and 4th Respondents were majority shareholders of the 1st Respondent.
In the recent case of Centre for Oil Pollution Watch vs. NNPC (2019) 5 NWLR (Pt. 1660) 518 @ 584, the Supreme Court, per Kekere-Ekun JSC restated the principle of locus standi thus: –
“The concept of locus standi has not been statutorily defined. It is a development of case law. Essentially, it has been held to mean “standing to sue” It is the legal capacity to

institute or commence an action in a competent Court of law or Tribunal without let or hindrance from any person or body whatsoever in order to determine whether a party has the necessary locus, the Court would consider only the originating processes filed by the plaintiff. He must show sufficient interest in the subject matter of the suit, which interest would be affected by the action or the damage or injury he would suffer as a result of the action.
In the past, as evidenced by cases such as Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 @ 601-602 H-B, Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669; Senator Abraham Adesanya v. President of the Federal Republic of Nigeria &Anor (1981) 5 SC, 112; (1981) 2 NCLR 358; Iteogu v. L.P.D.C. (2009) 17 NWLR (Pt. 1171) 614, the Court adopted a restrictive approach to the issue of locus standi. It is however, interesting to note that even in Adesanya’s case (supra), it was held that whether a claimant has sufficient justifiable interest or sufferance of injury or damages depends on the facts and circumstances of each case.”
On his part, Eko JSC, at page 596-7 of the Report stated that: -<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“In the determination of the question; whether the plaintiff has standing to request adjudication upon an issue, this Court, in Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904) 149, identifies two things or factors to bear in mind, that is –
i. Locus Standi should be broadly determined with due regard to the corporate interest being sought to be protected bearing in mind who the plaintiff is or plaintiffs are per Uwais, JSC at pages 170, para. F and
ii. It is important to bear in mind that ready access to the Court is one of the attributes of civilized legal system… (h) is dangerous to limit the opportunity for one to canvass his case by rigid adherence to the ubiquitous principle inherent in locus standi which is whether a person has the stand in a case. The society is becoming highly dynamic and certain stands of yesterdays (may no longer stand in our present state of our social and political development” per Pats – Acholonu, JSC at page 177, paras D-F.”
Put simply, a party/plaintiff in a case would have the requisite legal standing to sue or locus standi, if by the facts set out in the originating process

i.e. the writ/statement of claim or originating summons, he shows sufficient legal right and interest which he seeks to protect in the action. As stated by the Apex Court above, it is the case presented by a party/plaintiff in writ/statement of claim alone that determine whether he possesses the requisite locus standi or legal standing to sue or to initiate the action.

In its judgment, the Lower Court at pages 3381-2 of Vol. VIII of the Record of Appeal, stated and held that: –
“There is also evidence before the Court that the 2nd Plaintiff acquired 40% of the shares of the 1st Plaintiff thereby being a co-investor and subsequently registered as a shareholder of the 1st Plaintiff. Though it seems to me without even going into the legality as to whether the 3rd defendant is a majority shareholder as there is evidence before the Court that the 3rd Defendant has not even paid for the shares claimed to have been acquired by it, the 2nd Plaintiff going by the 1st Plaintiff’s share structure is a minority shareholder Exhibit ‘D’ having … Plaintiff minority shareholder not a right to maintain this suit once … 300 a, c and d of

CAMA where is allegation that the 2nd Plaintiff having 40% of the shares of the 1st Plaintiff have right to question the conduct of the majority shareholder here it claim that there are irregularities in the process leading to disposal of the assets of the 1st Plaintiff.”

The question would now arise as to whether there are facts in the originating processes (writ and statement of claim) of the 1st and 2nd Respondents used for the initiation of the action, which was joint, that support the above position by the Lower Court.

The relevant facts contained in the statement of claim dated 1st April, 2010 which relate directly to the 2nd Respondent are in paragraphs 1, 2, 5, 6, 7, 8 – 41, 45 – 51, 55-6, 58-63, at page 17-28 of Vol. I of the Record of Appeal.

Briefly put, the facts are to the effect that the 2nd Respondent is a registered 40% shareholder of the 1st Appellant whose property were being dissipated by the 3rd – 5th Respondents without valid and lawful authority of the 1st Respondent which was at the material time undergoing winding up by the Court to the knowledge of the Appellants.

The reliefs sought from the

Lower Court as set out in paragraph 64 of the Statement of Claim are as follows: –
“i. A DECLARATION that by virtue of Section 413 of the Companies and Allied Matters Act 1990 any disposition of, or any contract or agreement for disposition of, or any contract or agreement for disposition of any asset or property of the 1st Plaintiff which was made after the commencement of the winding-up proceedings brought against the company is null, void and of no effect whatsoever.
ii. A DECLARATION that any alienation, sale or transfer of any asset or property of the 1st Plaintiff without the mandate or authority of the Board of Directors first had and obtained is null, void, and of no effect whatsoever having regard to the provisions of Section 65(a) and Section 66(a) (b) of the Companies and Allied Matters Act, 1990.
iii. A DECLARATION that the purported alienation, assignment, sale or transfer of the 1st Plaintiff’s title, rights, and interests in Plots G1 & 6, 11, and 12 Daily times Estate (formerly known as Wemabod Estate), Ashogbon close, Off Adeniyi Jones Avenue, Ikeja, Lagos State to the 1st and 2nd Defendants during the pendency of

the winding up proceedings in Petition No. FHC/L/1012/09 is illegal, null and void having regard to Section 413 of the Companies and Allied Matters Act, 1990.
iv. A DECLARATION that the purported alienation, assignment, sale or transfer of the 1st Plaintiff’s title, rights, and interests in Plots G1 and 6, 11, and 12 Daily Times Estate (formerly known as Wemabod Estate), Ashogbon Close, Off Adeniyi Jones Avenue, Ikeja, Lagos State to the 1st and 2nd Defendants during the pendency of the winding up proceeding of Petition No: FHC/L/CP/869/2005 is illegal, null and void having regard to Section 413 of the Companies and Allied Matters Act 1990.
v. A DECLARATION that the purported alienation, assignment, sale or transfer of the 1st Plaintiff’s title, rights and interests in Plots G1 & 6, 11, and 12 Daily Times Estate (formerly known as Wemabod Estate), Ashogbon close, Off Adeniyi Jones Avenue, Ikeja, Lagos State to the 1st and 2nd Defendants during the pendency of Suit No: FHC/L/CP/1328/09 is by virtue of the principle of lispendens illegal, null, void and of no effect.
vi. A DECLARATION that the purported alienation, assignment, sale

or transfer of the 1st Plaintiff’s title, rights, and interests in Plots G1 & 6, 11 and 12, Daily times Estate (formerly known as Wemabod Estate), Ashogbon Close, Off Adeniyi Jones Avenue, Ikeja, Lagos State, without the authority of the Board of Directors and the General Meeting of the 1st Plaintiff is illegal, null and void having regard to Section 65(a) and Section 66(a) and (b) of the Companies and Allied Matters Act 1990.
vii. AN ORDER setting aside the purported alienation, assignment, sale or transfer of the 1st Plaintiff’s rights, title and interests in Plots G1 & 6, 11 and 12 Daily times Estate (formerly known as Wemabod Estate), Ashogbon Close, Off Adeniyi Jones Avenue, Ikeja, Lagos State, to the 1st and 2nd Defendants.
viii. AN ORDER directing the 1st and 2nd Defendants to return to the 1st Plaintiff all its title documents in respect of Plots G1 & 6, 11 and 12 Daily times Estate (formerly known as Wemabod Estate), Ashogbon Close, Off Adeniyi Jones Avenue, Ikeja, Lagos State.
ix. AN ORDER of this Honourable Court restraining the 6th Defendant from recognizing, approving, registering or otherwise granting

consent to any purported alienation, sale, assignment or transfer of the 1st Plaintiff’s title, rights and interests in of Plots G1 & 6, 11 and 12 Daily times Estate (formerly known as Wemabod Estate), Ashogbon Close, Off Adeniyi Jones Avenue, Ikeja, Lagos State to the 1st and 2nd Defendants.
x. AN ORDER of perpetual injunction restraining the 1st and 2nd Defendants, whether by themselves or through their agents or privies from entering, encroaching or trespassing upon or any manner whatsoever interfering with the Plaintiffsâ enjoyment and possession of Plots G1 & 6, 11 and 12 Daily times Estate (formerly known as Wemabod Estate), Ashogbon Close, Off Adeniyi Jones Avenue, Ikeja, Lagos State.
xi. AN ORDER of perpetual injunction restraining the 3rd, 4th and 5th Defendants from meddling with or purporting to sell or alienate the 1st Plaintiffâs title, rights and interests in Plots G1 & 6, 11 and 12 Daily times Estate (formerly known as Wemabod Estate), Ashogbon Close, Off Adeniyi Jones Avenue, Ikeja, Lagos State, or any other property or assets of the 1st Plaintiff whether to the 1st and 2nd Defendant or any other person or persons.”

The Appellants do not under this issue dispute that the 2nd Respondent indeed, holds/held 40% of the shareholding of the 1st Respondent at the time material to the sale of the property in question which was the subject matter of the action before the Lower Court. From the aggregate of the facts contained in the statement of claim, prima facie, the 1st and 2nd Respondents have disclosed sufficient interest to be clothed with the requisite legal standing to sue or locus standi to initiate the action in order to protect the property of the 1st Respondent in which it possesses a 40% shareholding stake from the alleged unauthorized or unlawful annihilation or dissipation by the 3rd – 5th Respondents to its detriment or disadvantage.
The Appellants have not appealed against the finding by the Lower Court in the judgement appealed against at page 3026 of Vol. VII of the Record of Appeal, that the 2nd Respondent had/has a 40% shareholding in the 1st Respondent and so the finding remains extant and binding. SeeMaduabum vs. Nwosu (2010) 13 NWLR (Pt. 1212) 623, Nwaogu vs. Atuma(2013) 11 NWLR (Pt. 1364) 117, Braithwaite vs. Dalhatu (2016)

13 NWLR (Pt. 1528) 32.
Section 300 (c) (d) of Companies Allied Matters Act clearly vests the right of action in the 2nd Respondent as a member of the 1st Respondent to institute the action against the 3rd – 5th Respondents in respect of the sale of the property in question, as rightly stated by the Lower Court in the above portion of its judgement. In N.I.B. Investment W.A. vs. Omisore (2006) 4 NWLR (Pt. 969) 172, it was held that a member of a company can bring an action under Section 300(d) of Companies Allied Matters Act if he shows that: –
(a) the action is one seeking declaration and injunction to stop fraud,
(b) there has been an appropriation of the company’s property amounting to fraud,
(c) the wrong doer themselves control the company and
(d) that the directors themselves fail to take appropriate action redress the wrong done.
From the facts deposed to in the statement of claim of the action before the Lower Court, all these requirements have been fully and completely met or satisfied to vest and confer the 2nd Respondent the legal standing to sue or locus standi to initiate the action. See also

Gombe vs. PW Nigeria Limited (1995) 6 NWLR (Pt. 402), Daily Times Nigeria Plc vs. Akindeji (1998) 13 NWLR (Pt. 508) 22 @ 27, Ejikeme vs. Amaechi (1998) 3 NWLR (Pt. 542) 456. Even though the 2nd Respondent did not call itself a minority shareholder in the statement of claim, however, the facts in paragraphs 2, 11, 12 and 16 show that the 2nd Respondent is a shareholder and a member of the 1st Respondent who had 40% shareholding in the company and therefore held less than the majority of the total shareholding in the company. Clearly therefore, the 2nd Respondent at the material time, held minority percentage of the shareholding of the 1st Respondent and even without saying, was a minority shareholder in the company. In the circumstances, the Lower Court cannot rightly be accused or said to have made a case for the 2nd Respondent.
In addition, the statement that the 2nd Respondent was the minority shareholder was/is not contradictory to the statement that at the time of the transaction the 3rd Respondent was the majority shareholder because the minority shareholding by the 2nd Respondent was for the purpose of determining its right to initiate action jointly with the

1st Respondent at the time it was initiated or filed. Whether or not the 3rd Respondent was the majority shareholder in the 1st Respondent was subject to another action, but from the depositions in paragraphs 12 – 30 of the statement of claim; the relevant process to be considered in the determination of the question of the 2nd Respondent’s standing to sue or locus standi to institute the action, at the time, the action was filed, the 3rd Respondent was not the majority or even a shareholder in 1st Respondent company. The two statements referred to the status of the 3rd and 2nd Respondents respectively, at different times; time of transaction for the 3rd Respondent and time of institution of the action in respect of the 2nd Respondent.
This position as it is, I must say again, that it is the statement of claim of the action that determines whether or not the 2nd Respondent in particular, has and possesses the legal standing or locus standi to initiate the action before the Lower Court. Because of the facts in paragraphs 10, 11, 13 – 30 of the statement of claim, the 2nd Respondent prima facie, had the right and authority to initiate and

undertake the action at the instance and in the name of the 1st Respondent in addition to its own right, in order to protect their inextricably joint interest in the property, subject of the action. In view of the averments in paragraphs 27 – 29 of the statement of claim, the 2nd Respondent, again prima facie, not only had the authority, but the corporate duty and obligation to initiate the action to protect the best interest of the 1st Respondent in all its assets including the property in dispute. The provisions of Section 299 of Companies Allied Matters Act which provided that where an irregularity has been committed in the course of a company’s affairs or any wrong done to the company, only the company can sue to remedy the wrong, in line with its distinct and separate legal status as a juristic personality from its members or shareholders, is made subject to the provisions of the Act.
In the case of Ebhota vs. Plateau Investment & Property Development Company Limited (2005) 7 SC (Pt. III) 8 (2005) 15 NWLR (Pt. 948) 266, Ejiwunmi, JSC, stated that: –
“The phrase “subject to”, in the section is significant. The

expression is often used in statutes to introduce a condition, a proviso, a restriction and indeed a limitation.”
See also Tukur vs. Governor, Gongola State (supra) at page 517 where the legal effect of the phrase “subject to” was stated thus: –
“The expression “subject to” subordinates the provisions of the subject section to the section referred to which is intended not to be affected by the provision of the letter.”
See in addition, Oke vs. Oke (1974) 1 ALLNLR (Pt. 1) 443 @ 450, NDIC vs. Okem Enterprise Limited (2004) 10 NWLR (Pt. 880) 107, (2004) 18 NSCLR, 42, FRN vs. Osahon (supra), Oloruntoba-Oju vs. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83.
The provision of Section 299 of Companies Allied Matters Act is subordinated to the other provisions of the Companies Allied Matters Act on the otherwise exclusive right of a company to sue for a wrong committed against it. Such other provisions that Section 299 is subjected and subordinated to, include the later Sections 300 – 305 and 310-12 of Companies Allied Matters Act which therefore take precedence in application over Section 299 on the right

of a company to initiate an action in appropriate cases, which the case instituted by the 2nd Respondent jointly with the 1st Respondent before the Lower Court happens to be. The peculiar facts in paragraphs 11 – 29 of the statement of claim and the circumstances of the sale in the property in question clearly called for the application of these latter provisions of Companies Allied Matters Act in the determination of whether the 2nd Respondent had the locus standi to institute the action jointly with the 1st Respondent.
It must be remembered that at the stage determining whether a party/plaintiff possesses the legal standing/or locus standi to institute an action, the merit of the action; i.e. whether or not the action will succeed, is immaterial. This point was stated in the Centre for Oil Pollution Watch vs. NNPC (supra) at page 586 that: –
“An important factor when considering locus standi is the fact that whether or not a party has the locus institute an action is not dependent the merits of the case but whether the plaintiff has sufficient interest in the subject matter of the dispute. It is a condition precedent a determination on

the merits. See: Adesanya vs. President of The Federal Republic of Nigeria & Anor. (supra); Ojukwu vs. Ojukwu & Anor. (2008) 18 NWLR (Pt. 1119) 439, Owodunni vs. Regd Trustees of C.C.C. & Ors.(2000) 10 NWLR (Pt. 675) 315. At this stage, all that is being determined is whether the appellant has the locus standi to sue. Whether the suit will ultimately succeed is not for consideration at this stage.”
Accordingly, whether the 2nd Respondent will succeed in the action does not fall for consideration in the determination of its right as a member and even a minority shareholder of the 1st Respondent, to initiate the action to protect its stake and proprietary interest in the 1st Respondent’s property.
A member or a shareholder of a company has rights statutorily prescribed under the provisions of Companies Allied Matters Act by virtue of his/its shareholding in the company. See: Sun Insurance Nigeria Plc vs. LMBS Limited (2005) 12 NWLR (Pt. 940) 608.
It is also argued that none of the reliefs claimed was personal to the 2nd Respondent. This argument however overlooks that the reliefs sought in the action are joint reliefs for

the benefit of both the 1st Respondent as a corporate legal entity that the 2nd Respondent owns, along with others, as a member and substantial shareholder, which is to its benefit, also as a corporate legal entity with the legal capacity to sue and be sued. The reliefs are therefore personal to both the 1st and 2nd Respondents and would confer real benefit jointly to them if they were to be granted at end of the case. For that reason, the case of Bakare vs. Ajose-Adeogun (supra) as well as a galaxy of other judicial authorities on the principle of law on benefit accruing to a party from the case as one of the conditions for locus standi, support the standing of the 2nd Respondent to initiate the action, in the above circumstances.
Over all, for the reasons set out above, the suit cannot rightly be said to be an abuse of the Court’s process, which though incapable of precise definition; is recognized to involve improper or misuse of the judicial process of a Court which is wanting in bonafide, frivolous, vexatious, oppressive and generally intended to annoy and irritate an opponent and to pervert the system of administration of justice, deliberately.

See: Okafor vs. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659; Saraki vs. Kotoye (1992) 9 NWLR (Pt. 64) 156 @ 188; Olawore vs. Olanrewaju (1998) 1 NWLR (Pt. 534) 436 @ 455; Olutinrin vs. Agaka (1998) 6 NWLR (Pt. 554) 366 @ 375, JonPal vs. Afribank (2003) 8 NWLR (Pt. 822) 290. The suit before the Lower Court was initiated by a party who shows sufficient interest in the subject matter thereof and will derive real benefits therefrom to be clothed with the requisite legal standing to sue or locus standi to initiate it.

I find no merit in the arguments of the Appellants on the issue which is resolved against them.

The last complaint in Issue 4 is that the Lower Court erred in setting aside the sale in question having regard to the evidence before it. It may be recall that the argument by the Appellants under the issue are to the effect that the 1st Respondent authorized the sale of some of its property by Board resolutions and that the 3rd – 5th Respondents were found to be the majority shareholder and directors of the 1st Respondent at the time, had the mandate and authority to sell the property in dispute. Also, that the Lower Court was wrong to

reject the resolution and that the 1st Respondent benefited from the sale.

With the resolution of issue 2 and decision of the Court that the provision of Section 413 applied, took effect and became operative after the commencement of the winding up of the 1st Respondent before the Lower Court, and voided any disposition of property made or done during the pendency of the winding-up proceeding, it did not matter whether the sale was duly authorized or not before then, so long as the disposition was made or done after the commencement and during the pendency of the winding up proceedings.

The Appellants and the 3rd – 5th Respondents did not dispute the facts found by the Lower Court that the sale of the property in dispute was made, transacted and concluded while the suits or petitions for the winding up of the 1st Respondent in the Lower Court were pending. I also note the finding of the Lower Court which has not been appealed against, that although the decision in Exhibit “D” was set aside by this Court, the suit was ordered to be returned to the Lower Court for determination and it was, at the time of the judgment appealed against,

still pending (see page 2998 of Vol. VII of the Record of Appeal). In addition, there were suit FHC/L/CP.1012/09 and FHC/L/CP/869/05 also petitions for the winding up of the 1st Respondent pending at the time of the sale in question to the knowledge of the 3rd- 5th Respondents, as found by the Lower Court. Since the disposition of the property of the 1st Respondent by the 3rd – 5th Respondents was done, carried out, occurred or happened during the pendency of the winding up proceedings of the company before the Lower Court, the sale of the property in question was voided by the operation of the law and the Lower has the jurisdiction and duty, to, as a consequential order, set it aside. I have earlier referred to the judicial definitions of a “void act” in this judgment which the disposition of the 1st Respondent’s property during the pendency of winding up proceedings against it before the Lower Court is, by virtue of the operation and application of the provision of Section 413 of Companies Allied Matters Act. The law is elementary now, that a Court has the inherent power and authority to grant or make consequential order(s) which

is/are incidental, flow from its decision(s) of the man or principal issues in a case and is/are primarily meant to give full effect to the decision(s). A consequential order or relief does not need to claimed or asked for by any of the parties before it could be made by the Court in appropriate cases and is usually made by a Court suomotu for the purpose of giving effect to its decision or judgement in a case. See Afrotec Tech. Services Nigeria Limited vs. M.I.A. & Sons Limited (2000) 15 NWLR (Pt. 692) 730; Glomite Nigeria Limited vs. Shellborn Marine Company Limited (2004) 10 NWLR (Pt. 880) 92; Osuji vs. Ekeocha (2009) 16 NWLR (Pt. 1166) 81, Uduma vs. Arunsi (2012) 7 NWLR (Pt. 1298) 55, Kayili vs. Yilbuk (2015) 7 NWLR (Pt. 1457) 26.

In the case before the Lower Court, the 1st and 2nd Respondents specifically prayed in Relief IV for declaration that the sale of the property in question was void having regard to the provision of Section 413 of Companies Allied Matters Act which declaration was made, rightly as demonstrated, by the Lower Court.

In Relief VII, the 1st and 2nd Respondents sought an order, in consequence of the Relief IV, setting

aside the said void sale of the property in question, so the relief to set aside the sale was specifically claimed, asked or prayed for and in view of the declaration made and grant of Relief IV, the Lower Court has the jurisdiction, power and was therefore on the firm terrain of the law, to grant and make the consequential order setting aside the sale so as to give effect to the declaration made, notwithstanding any other evidence before it.

There is no merit in the arguments of the Appellants on the issue and it is resolved against them.

In the final result, since all the issues submitted by the Appellants for determination in the appeal have been resolved against them, the appeal is wanting in merit and fails.

It is dismissed accordingly with an order that parties bear their respective costs of prosecuting the appeal.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My Lord, the HON. JUSTICE M. L. GARBA, JCA graciously obliged me with a preview of the draft of the lead judgment which has just been delivered, and in which he found the appeal as lacking in merit and consequently dismissed it.

I agree with the analysis and resolution of the four (4)

issues which the appeal set down for determination and of the decision reached in the appeal.

I really do not have any addition to make as the lead judgment had painstakingly and in great details, comprehensively dealt with all the issues which the Appellants have raised as well as the 1st and 2nd Respondents’ Preliminary Objection which was rightly dismissed in the lead judgment.

I agree that the appeal be dismissed as it lacks merit and I abide with the consequential order made as to costs.
Appeal is dismissed.

BALKISU BELLO ALIYU, J.C.A.: I have read in draft the leading judgment of my learned brother MOHAMMED LAWAL GARBA, JCA. I agree with his conclusion that the appeal lacks merit and should be dismissed.

I too dismiss the Appeal and affirm the Judgment of the lower Court delivered on the 13/12/2013 in respect of suit No: FHC/L/CS/423/2010.
Appeal dismissed.

Appearances:

Chief O. Olanipekun (SAN), T. Pinhero (SAN), with them, K. Obafemi, E. Bwala, S. Bojuwoaye, A. Makinde, O. Salami, A. Kuwu and I. Adebambo For Appellant(s)

A. Idu – for the 1st and 2nd Respondents

3rd to 6th Respondents not represented For Respondent(s)