EGBE v. GEORGE & ANOR (2021)

EGBE v. GEORGE & ANOR

(2021)LCN/15122(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 26, 2021

CA/B/283/2011

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

PETER JAMES ASIFO EGBE (ALSO KNOWN AS PETER JAMES AZIZA) APPELANT(S)

And

MRS. ADEBISI GEORGE 2. MR. ANTHONY BOBMANUEL (SUED AS ADMINISTRATORS OF THE ESTATE OF LATE MADAM CATHERIN EFEJUKU) RESPONDENT(S)

RATIO

EFFECT OF A VAGUE GROUND OF APPEAL

A Ground of Appeal which is vague, such as the aforementioned Grounds Two, Three and Four herein, cannot be of any assistance in resolving an alleged complaint against a judgment as the error complained against is incapable of being identified in order to be adequately addressed. This Court is therefore unable to disagree with learned Respondents’ Counsel that Grounds Two, Three and Four are not vague but also fails to have the particulars and errors stated as required and therefore offends against the Rule of Court and must be struck out. See OSASONA vs. AJAYI & ORS (2004) LPELR-2790 SC; OSAWARU vs. EZEIRUKA (1978) 6-7 (SC) 135 AT 137; SARAKI vs. KOTOYE (1990) 4 NWLR (PT. 143) 144 AT 160. The said Grounds Two, Three and Four having been found to be grossly incompetent also affects the competence of all the issues formulated there from and shall be liable to be struck out. See LAMBERT vs. NIGERIA NAVY (2006) 7 NWLR (PT. 980) 514; PETER vs. OKOYE (2002) FWLR (PT. 110) 1864; UGO vs. OBIEKWE (1989) 1 NWLR (PT. 99) 514. PER FREDERICK OZIAKPONO OHO, J.C.A.

WHO CAN SEEK A RELIEF TO REGULARIZE ANY PERCEIVED IRREGULARITIES IN THE CONDUCT OF THE COMPANY’S MEETING OR IN THE APPOINTMENT OF A DIRECTOR OR MAINTAIN AN ACTION WHERE A WRONG IS DONE TO THE COMPANY

The settled position of the law is that matters regarding the holding of a Company’s meeting or appointment of Directors of the Company are statutorily structured as matters exclusively within the internal affairs of the company and as such, no party except the Company itself can seek a relief to regularize or rectify any perceived irregularities in the conduct of the Company’s meeting or in the appointment of a director. See the old case of FOSS vs. HARBOTTLE (1843) 2 HARE 461, which plays the role of a gatekeeper regulating as it were the controlled circumstances where a member/shareholder may bring an action in respect of matters concerning the company. The Rule in FOSS vs. HARBOTTLE (Supra) has since been codified in Section 299 of the CAMA, which provides thus: “Subject to the provision of this Act, where irregularities has been committed in the course of a company’s affairs or any wrong has been done to the company, only the company can sue to remedy that wrong and only the company can rectify the irregular conduct.” Arising from the foregoing Rule and perhaps, by parity of reasoning, if in a situation where a wrong done to the Company, the Company remains the ‘proper Plaintiff, so that only the Company may sue and an individual shareholder (or group of shareholders) or members may not sue (‘proper plaintiff rule’), then how appropriately can the status of this Appellant be classified in this case? Here is a case in which the Appellant is neither a shareholder/member nor director of the Company and yet had sought Orders in Court about some perceived wrongs done to the Company. Learned Respondents’ Counsel cited the case of MOZLEY vs. ALSTON (Supra) where two shareholders tried unsuccessfully to restrain four directors of the Company from acting as directors when they should retired on rotation under the articles. The Court in that case held that their action must fail because the acts complained of were wrongs done to the Company and that only the Company could therefore sue. See the case of YALAJU-AMAYE vs. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD & ORS (1990) LPELR-3511 (SC), where the apex Court per KARIBI-WHYTE, JSC had this to say on the subject: “The rule in Foss v. Harbottle (supra) as formulated was very clearly explained in Edwards v. Halliwell (1950) 2 All E.R. 1064 at 1066 where Jenkins, L.J. stated it as follows- “The rule in Foss v. Harbottle, as I understand it, comes to mean no more than this. First, the proper plaintiff in an action in respect of a wrong alleged to be done to a company or association of persons is prima facie the company or the association of persons itself. Secondly, where the alleged wrong is a transaction which might be made binding on the company or association and on all its members by a simple majority of the members, no individual member of the company is allowed to maintain an action in respect of that matter for the simple reason that, if a mere majority of the company or association is in favour of what has been done, then cadit quaestio. Thus the company or association is the proper plaintiff in all actions in respect of injuries done to it. No individual will be allowed to bring actions in respect of acts done to the company which could be ratified by a simple majority of its members…” PER FREDERICK OZIAKPONO OHO, J.C.A.

WHAT IS A RESPONDENT’S NOTICE

A Respondent’s Notice ordinarily, simply postulates that the approach of the Court below the case, was correct but that his conclusions had failed to take into consideration other factors which supports its decision and thereby contends that the judgment of the trial Judge ought to be varied or affirmed on other grounds, than the ones relied upon by the Court below. PER FREDERICK OZIAKPONO OHO, J.C.A.

WHEN CAN IT BE SAID THAT A RESPONDENT’S NOTICE HAS BEEN VALIDLY RAISED

This Court is fortified by the lucid observations of the apex Court in the case of ARISONS TRD. & ENGR. CO. LTD vs. MIL. GOV. OF OGUN STATE & ORS. (2009) LPELR-554 per MUHAMMAD, JSC when the Court had this to say on the subject: “Let me first and foremost draw attention that a Respondent’s Notice as provided by Order 3 Rule 14(2) of the Court of Appeal Rules is not and does not represent a Notice of Appeal. This is because a Respondent’s Notice does not contemplate a situation where the applicant will be entitled to ask for a complete reversal in his favour of findings of fact made against him on certain issues contested in the case, though he may have succeeded on other issues. The Respondents’ Notice filed in this appeal arose from the appeal on hand. I have perused the grounds upon which the Respondents’ Notice was predicated. I have carefully perused, compared and contrasted with the reliefs claimed in the appeal and I am contented that the respondents were neither asking for a complete reversal of the findings of fact made against them nor did they ask for anything that would have fundamentally altered the case. See: ADELEKE V. AKINOLUGBADE (1987) 3 NWLR (part 60) 214 at page 216; ATTORNEY GENERAL OYO STATE V. FAIRLAKES HOTELS (No.2) Supra. The Respondents’ Notice in this matter, in my view, was validly raised.” PER FREDERICK OZIAKPONO OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the Federal High Court, sitting in Benin (hereinafter referred to as: “the Court below”) Coram: ADAMU HOBON, J delivered on the 5th day of July, 2011 dismissing the Appellant’s Motion on Notice dated the 22nd October, 2010 due to reasons of failure to disclose valid Grounds to justify the setting aside of the lower Court’s Order of 24th February, 2009- directing the Respondent to convey the meeting of GHORODEMI LIMITED as the only surviving member of the Company.

The brief fact of this case is that the Respondent brought an Originating Ex-parte Summons dated 26th January, 2009. By the Originating Ex-parte Summons, the Respondent sought an order to convene an Extra-ordinary General Meeting of Ghorodemi Limited “the company”. At the time of making the application, the Respondent was the only surviving director of the Company. As such, it was necessary to appoint another director in place of the deceased Fred Egbe to meet the statutory requirement for a minimum of two directors. The Trial Court granted the request on February 24, 2009. Pursuant to the

Court Order, the Respondent convened an extra-ordinary general meeting. At the meeting, Mrs. Adebisi George was appointed a director of the Company.

By a Motion on Notice dated October 22, 2010 however, the Appellant who is neither a member, director nor contributory of the Company, nor a representative or nominee of a member, director or contributory of the company sought to set aside the ex-parte order granted on February 24, 2009 and all other acts done by the Respondent pursuant to that Order. The Appellant has requested the relief in this appeal merely on the basis of his putative claim to entitlement to succession of the Estate of Late Fred Egbe, a deceased member of the company (the Deceased).

The question of the Appellant’s paternity in relation to the Deceased is the subject of a matter pending before the Lagos High Court in Suit No. LD/141/2009. On July 5, 2011, the Trial Court dismissed the Appellant’s application to set aside its order of February 24, 2009 and arrived at the following conclusions: The Order was not in excess of the power of the Court below to convene a meeting of the company in the circumstance. The Court only directed

the Respondent to convene a meeting and: “if thought fit” pass the resolution in the schedule to the application.
1. The Order of 24th February, 2009 was properly made; and cannot be invalidated on any of the grounds stated in Appellant’s Motion.
2. The Appellant failed to disclose grounds justifying the exercise of the Trial Court’s jurisdiction to set aside the Order.
3. The Appellant merely alleged procedural irregularities in the mode of commencement of the action and abuse of judicial process. The issue of abuse of Court process was misconceived because the suit before the Trial Court was filed on 26th January, 2009 before the Appellant subsequently filed Suit No: FHC/L/CS/12/2009 pending before Federal High Court, Lagos.

Dissatisfied with the Ruling of the Trial Court, the Appellant filed a Notice of Appeal dated 18th July, 2011. Subsequently, the Appellant filed another Notice of Appeal dated 26th September, 2011 in respect of the same Ruling. Following the death of the Respondent (Madam Catherin Efejuku), the Respondents by a Motion on Notice dated November 30, 2018 applied to be substituted as the Respondents being the

appointed administrators of her estate. On February 5, 2019 this Honourable Court allowed the Respondents’ (Mrs. Adebisi George and Mr. Anthony Bob- Manuel) to be substituted as the Respondents in this appeal. Consequently, on March 8, 2019, the Appellant filed his Notice of Appeal date February 27, 2019 and Appellant’s Brief of Argument dated February 27, 2019 but filed March 8, 2019.

ISSUES FOR DETERMINATION:
The Appellant nominated two (2) issues for the determination of this Appeal, thus:
1. Whether the Order of Court made on the 24th of February 2009 was validly made?
2. Whether the Court ought to have considered the validity of the acts done and decisions taken at the meeting held pursuant to the Order of Court and what Order the Court ought to have made in the circumstances?

On the part of the Respondents, a total of three (3) issues were nominated for the determination of this Appeal, thus:
1. Can the Appellant (who is neither a member, director, legal representative of a deceased shareholder/member of Ghorodemi Limited) apply to set aside the Trial Court’s Order directing the Respondent to convene the company’s

meeting; or complain of any irregularity in the company’s affairs?
(Ground One of Form 10B-Notice of Intention to contend that Judgment of the Court below should be affirmed on Grounds other than those relied upon by the Court below)
2. Was the Trial Court’s Order of 24th February 24, 2009 directing the Respondent to convene the meeting of Ghorodemi Limited validly made; and was the meeting held pursuant to the Order and the decisions taken valid?
(Grounds 1, 2, 3 and 4 of the Notice of Appeal dated 26th September, 2011 and Ground 1 of the Notice of Appeal dated 18th July, 2011)
3. Is the Trial Court not functus officio in respect of its Order made on 24th February, 2009 directing the conduct of the company’s meeting?
(Ground 2 of form 10B-notice of intention to contend that judgment of the Court below should be affirmed on grounds other than those relied upon by the Co below)

Apart from nominating these issues, the Respondent also filed two separate Notices. The one is a Notice of the Respondent’s Intention to Rely on a Preliminary Objection brought pursuant to Order 7 (2) and (3) of the Court of Appeal Rules, 2016; while

the other is a Notice of Intention of the Respondent to contend that judgment of the Court below should be affirmed on Grounds other than those relied upon by the Court below filed in Form 10B. The merit or otherwise of these Notices were copiously argued in the body of the Briefs of Argument in the Record.

DETERMINATION OF THE NOTICE OF PRELIMINARY OBJECTION
The objection taken by Respondents is that the Appeal is fundamentally incompetent and should be struck out; or dismissed as an abuse of judicial process and failure to comply with the Rules of this Court. The Notice is predicated on the following Grounds:
1. The Appellant failed to state clearly the Particulars and nature of errors of law complained of in Grounds Two, Three and Four of the Notice of Appeal dated February 27, 2019. Consequently the Grounds are vague and defective.
2. Grounds Two, Three and Four of the Notice of Appeal dated February 27, 2019 and filed March 8, 2019 are argumentative and consequently incompetent for violation of the mandatory provision of Order 7 Rule 2 (3) and Rule 3 of the Court of Appeal Rule, 2016.
3. Issues One and Two of the Appellant’s

Brief of Argument dated February 27, 2019 and filed March, 8, 2019 are incompetent because they were formulated from incompetent Grounds of Appeal.

On the question of vague Grounds, learned Counsel referred this Court to Grounds Two, Three and Four of the Notice of Appeal dated February 27, 2019 which also contended that are not only vague, but also argumentative and consequently defective. Counsel further contended that the Appellant failed to state clearly the particulars and nature of errors of law complained of in the grounds in violation of Order 7 Rule 2 (2-3) and (3) of the Court of Appeal Rules 2016.

In addition, Counsel contended that by mere critical examination of Grounds Two, Three and Four of the Notice of Appeal dated February 27, 2019 it will be glaring that the Grounds are vague and argumentative and that worse still, the Appellant failed to set out the particulars to give sufficient clarity to the nature of error complained of. Learned Counsel cited the case of OKWUAGBALA vs. IKWUEME (2010) 19 NWLR (PT. 1226) 54 AT 67 PARA A-F where the apex Court affirmed the decision of the Court of Appeal striking out a similar defective Notice

of Appeal and held as follows:
“From the above, it is clear that the alleged misdirection complained of in the judgment of the trial Court was not quoted or reproduced neither are the relevant particulars relating to the alleged misdirection given in these particulars… See Oge v. Ede (1995) 3 NWLR (pt. 385) 564; Bank of the North Ltd v. Bello (2000) 7 NWLR (PT. 664) 244 at 253 paras E-F where this Court clearly stated the law as follows:
It is well settled by a long line of decided cases that when a ground of appeal alleges either an error in law or misdirection in law;…
Full and substantial particulars of the alleged error or misdirection must be given.
It is obvious that from whatever angle one looks at the issue, it must fail as the lower Court was very right in coming to the conclusion it did with regards to the preliminary objection.”

Arising from the foregoing, learned Counsel urged this Court to strike out Grounds Two, Three and Four of the Notice of Appeal dated February 27, 2019 for being incurably incompetent, Apart from this, Counsel also urged this Court to strike out Issue One of the Brief of Argument (distilled

from Grounds 1 and incompetent Ground 4) and Issue Two (distilled from the incompetent Grounds 2 and 3). The contention of Counsel is that this was the treatment given to similar issues formulated in FOLAMI vs. OKEGE (2008) ALL FWLR (PT. 416) 1895 AT 1910, PARAS. C-E. Finally, the Respondents urged this Court to strike out the appeal in its entirety.

Order 7 Rule 2 (2-3) and (3) of the Court of Appeal Rules, 2016 provides thus:
“Where a Ground of Appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
The Notice of Appeal shall set forth concisely and under distinct heads the Grounds upon which the Appellant intends to rely at the hearing of the Appeal without any argument or narrative and shall be numbered consecutively”.
Subsection 3 of Order also provides, thus:
Any Ground which is vague or general in terms or which discloses no reasonable Ground shall not be permitted save the general Ground that the judgment is against the weight of evidence and Ground of Appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its

own motion or on application by the Respondent”.

The question to therefore address here is whether the said Grounds two, three and four aforesaid are indeed vague, argumentative or in deserving cases have failed to set out the particulars as required by the Rules? It will be apposite to reproduce the said Grounds here for the avoidance of any doubt, thus;
Ground Two:
“The learned trial judge erred in law in not considering the complaint of the Appellant that even if the Court was right in authorizing the holding of the meeting (which fact is not admitted) the decisions taken at the said meeting went beyond the Order of Court, and indeed has the effect of the validating the appointment of Mrs. Bisi George as a Director of the Company retrospectively from August, 2009 which appointment is the subject matter of Suit No. FHC/L/CS/63/2009 before the Federal High Court Lagos”.
Ground Three:
“The learned Trial Judge erred in law in failing to consider the complaint of the Appellant that even if the Order to hold a Court Ordered Meeting was validly made (which fact is not admitted) the said meeting which was held a day after the Order of

Court was made is irregular, null and void regard to Articles of the Company and the provisions of the Companies and Allied Matters Act as to the Notice periods to be given before the holding of such a meeting, the failure of which should have rendered the meeting and the decisions taken therein null and void”.
Ground Four:
“The learned trial Judge erred in law in holding that the complaint of the Appellant that the application for a Court ordered Meeting should have been brought ‘On Notice’ and not ‘Ex-parte’ is merely a breach of the Rules of Court as to procedure when in fact the complainant goes beyond mere procedural irregularity in that it is an infraction of the Company’s right to fair hearing”.

Against the backdrop of the foregoing, it is without doubt a fait accompli that the reproduced Grounds are variously vague, having not been provided with Particulars by the Rules, and also argumentative to say the least. This Court has had to subject the Grounds to a number of readings and even at that it was not easy comprehending what the Appellant had intended to achieve in the Grounds. To rather make matters worse, these Grounds alleging

misdirection or error in law have also failed to state clearly the particulars and the nature of the misdirection or error required to be exposed in line with the provision of the Court of Appeal Rules, 2016, Order 7 Rule 2(2-3). A Ground of Appeal which is vague, such as the aforementioned Grounds Two, Three and Four herein, cannot be of any assistance in resolving an alleged complaint against a judgment as the error complained against is incapable of being identified in order to be adequately addressed. This Court is therefore unable to disagree with learned Respondents’ Counsel that Grounds Two, Three and Four are not vague but also fails to have the particulars and errors stated as required and therefore offends against the Rule of Court and must be struck out. See OSASONA vs. AJAYI & ORS (2004) LPELR-2790 SC; OSAWARU vs. EZEIRUKA (1978) 6-7 (SC) 135 AT 137; SARAKI vs. KOTOYE (1990) 4 NWLR (PT. 143) 144 AT 160.
The said Grounds Two, Three and Four having been found to be grossly incompetent also affects the competence of all the issues formulated there from and shall be liable to be struck out. See LAMBERT vs. NIGERIA NAVY (2006) 7 NWLR (PT. 980)

514; PETER vs. OKOYE (2002) FWLR (PT. 110) 1864; UGO vs. OBIEKWE (1989) 1 NWLR (PT. 99) 514. To this end, Issue one of the Appellant’s Brief distilled from Grounds 1 and 4; and Issue Two distilled from Grounds 2 and 3 are hereby struck out.

Apart from the Notice of Preliminary Objection raised by Respondents, there is also raised a Respondent’s Notice disclosing the intentions of the Respondents to contend that judgment of the Court below should be affirmed on Grounds other than those relied upon by the Court below. This Notice was filed on the 5th day of April, 2019 and argued by Respondent’s Counsel along with other issues nominated by the Respondents for the determination of this Appeal. The said Respondent’s Notice shall therefore be taken along with the substantive Appeal. In the meantime, having struck out Appellant’s issues one and two, this Court still went ahead to consider the said issues in the determination of the Appeal, this Court being a penultimate Court.

The Appellant’s brief of argument dated 27-2-2019 and filed on 8-3-2019 was settled by E. I. EMMANUEL, ESQ., while the Respondents’ brief of argument dated 29-3-2019 and

filed on the 5-4-2019 was settled by MRS. V. O. M. LONGE. The Appellant also filed a Reply brief dated 30-4-2019 and filed on the 3-5-2019 but properly deemed filed and served on the 11-2-2021. On the 11-2-2021 at the hearing of this Appeal, learned Counsel for the parties adopted their respective briefs of argument on behalf of their clients with each urging upon this Court to resolve this Appeal in favour of their sides.

SUBMISSIONS OF COUNSEL TO THE PARTIES:
APPELLANT:
ISSUE ONE:
Whether the Order of Court made on the 24th of February 2009 was validly made?
In arguing this issue, Counsel contended that the orders granted by the Court below were in excess of the powers granted to the Court by Section 223 of the Companies and Allied Matters Act. According to learned Counsel, Section 223(1) gives the Court the power “to order a meeting of the company or board as the case may be, to be called, held or conducted in such manner as the Court thinks fit and where any such order is made may give such ancillary or consequential directions as it thinks expedient”. But that there is nothing in the Act which gives a Court the power to

enable a meeting to be called in order to pass a resolution that an individual be appointed as a director as was done in this case.

Counsel argued that Section 223(2) makes it clear that the ancillary or consequential directions that a Court may give under Section 223(1) include directions that a sole shareholder in the case of a general meeting or a sole director in the case of a board meeting may apply to Court for an order to take a decision which would bind all the members. Counsel argued that in effect, the Section 223 is in two stages; the first is for the shareholder to request a general meeting or for a director to request a board meeting and once the Court grants that request, the next stage is for that shareholder or director as the case may be to apply to the Court for an order to take a decision which would bind all the members. As far as Counsel was concerned, this was not the case in this matter.

He argued that in the case herein, the Court merely ordered that “it is hereby granted that an Extra Ordinary General meeting of Ghorodemi Limited may be convened for the purposes of and, if thought fit, passing as a special resolution, the

resolution set forth in the Schedule hereto, viz:- That Mrs. Adebisi George be and is hereby appointed as a director of the company in place of Mr. Fred Egbe, Deceased.” Thus, Counsel submitted that the Court could not so order under the Act. Counsel cited the case of IRO vs. PARK (1972) N.S.C.C. 699 where the apex Court considered a similar Section 128 under the Old Companies’ Decree 1968.

ISSUE TWO:
Whether the Court ought to have considered the validity of the acts done and decisions taken at the meeting held pursuant to the Order of Court and what Order the Court ought to have made in the circumstances?
In arguing this issue, Counsel brought to the attention of this Court the fact that the second prayer on the Appellant’s Motion on Notice was one for: “An Order setting aside all the acts done by the Respondent pursuant to the said Ex-parte Order of the Court dated the 24th day of February, 2009 in the said suit.” The argument of Counsel that followed here is that the Court did not consider this prayer of the Appellant while delivering his ruling. According to Counsel, the position of the law is that the Court has a duty to consider and

rule upon all issues tabled before it by the parties.

In the case of FEDERAL MINISTRY OF HEALTH AND ANOR vs. COMET SHIPPING AGENCIES (2009) 9 NWLR (PT. 1145)193, the Supreme Court held that the principle of adjudication fundamental to the administration of justice is that the Court is bound to consider every material aspect of a party’s case validly put before it. He added that any issue properly raised and canvassed before a trial Court or an Appellate Court must be given a fair hearing and considered in order to avoid a miscarriage of justice. See the cases of EGHAREVBA vs. OSAGIE (2009) 18 NWLR (PT. 1173) 299; ACTION CONGRESS vs. JANG (2009) 4 NWLR (PT. 1132) 475. Learned Counsel further contended that the issue of the acts and decisions taken by the Respondent pursuant to the order of Court granted on the 24th of February, 2009 was properly canvassed before the Court. But that in its ruling, the Court did not consider the arguments proffered in respect of those issues and made no pronouncements on the issues. Counsel submitted that this occasioned a miscarriage of justice on the Appellant. Learned Counsel listed a number of issues done and not done

which the Appellant wanted set aside but which the Court below declined to do.

RESPONDENT:
ISSUE 1:
Can the Appellant (who is neither a member, director, legal representative of a deceased shareholder/member of Ghorodemi Limited) apply to set aside the Trial Court’s Order directing the Respondent to convene the company’s meeting; or complain of any irregularity in the company’s affairs?
In arguing this issue, learned Respondent’s Counsel contended that the Appellant who is neither a member, director, legal representative of a deceased shareholder/member of Ghorodemi Limited has no right at all to apply to set aside the Trial Court’s Order directing the Respondent to convene the company’s meeting; or complain of any irregularity in the appointment of Director of the company as only the company or its members and directors can challenge the conduct of the company’s meeting or the appointment of directors.

Counsel further contended that without question, matters regarding the holding of a company’s meeting or appointment of directors of the company are statutorily recognized as matters exclusively within the internal affairs of the

company and as such, no party except the company itself can seek a relief to regularize or rectify any perceived irregularities in the conduct of the company’s meeting or in the appointment of a director. Counsel added that these irregularities do not in any event exist at all in this case.

The argument of Counsel is that under common law, the rule in FOSS vs. HARBOTTLE (1843) 2 HARE 461 controlled circumstances where a shareholder may bring an action in respect of matters concerning the company. He opined that the Rule operates as a filter to restrict actions against companies and those who run them. Counsel argued that this Rule has been codified in Section 299 of the Companies and Allied Matters Act, which provides that:
“Subject to the provision of this Act, where irregularities has been committed in the course of a company’s affairs or any wrong has been done to the company, only the company can sue to remedy that wrong and only the company can rectify the irregular conduct.”

The explanation of Counsel about the purport of the Rule is that where a wrong is done to the company, the company is the proper plaintiff, so that only the company

may sue and an individual shareholder (or group of shareholders) may not sue (‘proper plaintiff rule’). Interestingly, Counsel reiterated that the Applicant in this action is not even a shareholder or member of the company. See the case of MOZLEY vs. ALSTON 41. E.R. 833, where two (2) shareholders tried unsuccessfully to restrain four directors of the company from acting as directors when they should have retired on rotation under the articles. It was held that the action must fail because the acts complained of were wrongs done to the company and only the company could sue.

As far as Counsel is concerned, Nigerian case law recognizes the Rule in FOSS vs. HARBOTTLE (Supra), which the Supreme Court categorically upholds as the settled position of the law in a number of cases one of which is the case ofA.G, LAGOS STATE vs. EKO HOTELS LTD (2006) 18 NWLR (PT. 1011) 378 AT 455 – 456, the Supreme Court held that:
“I should take the rule in Foss vs. Harbottle (J 843) 2 Hare 461 because it is applicable here. The rule is that the company or association is the proper plaintiff in all actions in respect of injuries done to it. No individual will be allowed

to bring actions in respect of acts done to the company which could be ratified by a simple majority of its members, The rule has been applied in our Courts.”

The argument of learned Counsel is that there are statutory exceptions where personal action may be instituted against the company under Section 300 of the Companies and Allied Matters Act, but that this right is only available to members, without more and who are defined under Section 302 is defined as:
1. a personal representative of the deceased member; or
2. any person to whom shares have been transferred or transmitted by operation of law.

Based on the foregoing, Counsel submitted that the Appellant is neither an executor nor administrator of the deceased and so not a member at all of the company. Again, and as deposed to in paragraph 5 of the Counter-affidavit to Applicant’s Motion dated 22nd October, 2010 the Appellant is a stranger to the deceased and that his alleged paternity in relation to the deceased Fred Egbe is seriously in doubt and subject of Suit No: LD/141/2009: Peter Aziza v. Madam Efejuku & Ors pending before the Lagos High Court. At best, Counsel argued

that Appellant’s legal right is contingent upon the following:
A. successful proof of his paternity and beneficiary rights to the Estate of the deceased Fred Egbe in Suit No: LD/141/2009 before the Lagos High Court.
B. his appointment as one of the personal representatives of the Estate of Fred Egbe because the legal personal representatives of the deceased Fred Egbe are the only persons recognized by Section 155 (1) of CAMA as having any title to his interest in the company.
C. The transmission of the shares of the deceased to the personal representatives of the deceased as required by Section 155 (1) of Companies and Allied Matters Act.
D. The registration of the personal representatives or the beneficiaries (in whom title to the shares of the deceased has devolved) as members of the company as required by Sections 155 (2) and 79 (2) of Companies and Allied Matters Act.

Counsel also contended that the Appellant has not satisfied any of the statutory conditions adumbrated above as he neither proved his paternity in relation to the deceased nor obtained Letters of Administration. Counsel further argued that the allotment of

shares is even not enough as the settled position of the law now is that without the registration as a member in the company, in respect of the devolved shares, the allottee would not be a competent person to apply to the Court for the purposes of Section 300 of CAMA. See TIKA TORE PRESS LTD vs. ABINA & ORS (1973) ALL ER 334 AT 344; See also CONTRACT RESOURCES NIGERIA LIMITED & IFEANYICHUKWU E. R. OKONKWO vs. DOMINIC WENDE (1998) 5 NWLR (PT. 549) 243.

On the issue of the Appellants’ agitation on the issue of the failure to serve Statutory Notices, Counsel was rather terse in submitting that the Appellant is not entitled to receive notice of the company’s meeting and cannot complain of the alleged failure to give notice before holding the Extraordinary General Meeting and the Directors’ meeting. Curiously, he added that the Appellant did not state whether or not he falls under the categories of persons stipulated under Section 219 of CAMA as entitled to notice of meeting. He said in addition, that the Appellant cannot challenge the validity of the meeting on the basis that notice was not issued as he has no legal standing whatsoever to challenge

the meeting held pursuant to the Order of Court of February 24, 2009, for failure to issue notice to him or for any other reason whatsoever.

Apart from the foregoing, Counsel argued that in order to present a valid challenge to the meeting and the appointment of a Director, the Appellant must not only show that he is a member of the company he still has to demonstrate that he has interest in the directorship position. Counsel cited the case of AMUSU MOMOH vs. JIMOH OLOTU (1970) ALL NLR 121 AT 127.

ISSUE 2:
Was the Trial Court’s Order of 24th February 24, 2009 directing the Respondent to convene the meeting of Ghorodemi Limited validly made; and was the meeting held pursuant to the Order and the decisions taken valid?
In arguing this issue, learned Respondents’ Counsel contended that the Court below properly exercised its power under Section 223 of CAMA to order the Respondents to convene the company’s meeting. According to Counsel, the Order of Court granted on February 24, 2009 directing the holding of the meeting of the Company is legally valid. He said that Section 223 of CAMA provides for the power of the Court and the right of any

director or member of the Company to apply to Court for an order to hold a meeting of the Company in circumstances such as the instant case where there was only one surviving member and director of the company. It was further contended by Counsel that the decision, deliberation or resolution of such Court-ordered meeting is a matter of the internal affairs of the company and are specifically validated Section 223 (2) of CAMA.

In interpreting this provision, Counsel referred to the case of ORJI vs. DTM (NIG.) LTD. (2009) 18 NWLR (PT.1173) 467 AT 491 where the apex Court held that a director or member of a company can initiate an action in Court for the purpose of calling or conducting a meeting under Section 223(1). Clearly, this Supreme Court decision validates a situation, such as in the instant appeal, where the Trial Court exercised its discretion to order the meeting of the company because there was only one surviving member and director of the company and it had become impracticable to call a meeting of the company.

Learned Counsel also argued that the case of IRO vs. PARK (1972) NSCC 699, which was misapplied by the Appellant had earlier

clearly established that a member or director of a company may apply to Court to convene the meeting of the company. He said that in IRO vs. PARK (SUPRA), the Applicant, the only shareholder and Director of a company, requested an order of Court to allow him hold and conduct a meeting of the company pursuant to Section 128 of the then Companies Decree, (similar to Section 223 of CAMA). The Court per Coker JSC held:
“…Section 128(1) should be invoked where “for any reasons it is impracticable to call a meeting of a company” and that in such circumstances as described in the section, the Court may “order a meeting of the company to be called, held and conducted in such manner as the Court thinks fit”. The sub-section also empowers the Court to make “ancillary or consequential directions” as the Court thinks expedient in circumstances in which it may be necessary for such directions to be given as would make the holding and conduct of the meeting possible and/or effectual. Section 128(2) validates the deliberations and decisions taken at such a meeting insofar as such meeting is held in accordance with the provisions of Section 128(1).”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned Counsel also raised the question of whether the Respondent being the only surviving Director of the company has powers to appoint another Director to meet the requirement of CAMA that a company must have at least two Directors. The contention of Counsel is that going by the combined effect of Sections 246 and 249 of CAMA, the Respondent being the only Director and member of the company may appoint another Director to meet the statutory minimum.

As far as Counsel is concerned, the clear interpretation of these provisions (Sections 246 and 249 of the CAMA) is that the Respondents may appoint a person to fill the casual vacancy left by the demise of Late Fred Egbe. He said that where a casual vacancy is filled, the person may be approved by the General Meeting at the next Annual General Meeting and that this procedure was followed in this case when the Respondent applied to Court to hold the meeting and approved the appointment of Mrs. Bisi George as Director at the meeting. It was contended that in the circumstances of this case, it was impracticable for a meeting to be held as the Respondent was the only surviving member and Director; that

applying for a Court-ordered meeting, therefore became the last resort to ensure that the operation of the company is not stultified as a result of the death of the only other member and Director of the company.

Learned Counsel also contended that apex Court in the case of LONGE vs. FIRST BANK OF NIGERIA PLC (2010) 6 NWLR (PT. 1189) 1 AT 43 generally recognized the power of the Board of Directors to fill any casual vacancies on the board and that the only limit to the power of the board to fill up a casual vacancy is the power of the General Meeting to ratify or reject the appointment. But that where as in this case the appointment is ratified at the General Meeting of the company, the appointment is valid and not open to challenge by the instant Appellant who has no interest at all in the company or in the appointment of Directors of the company.

ISSUE 3:
Is the Trial Court not functus officio in respect of its Order made on 24th February, 2009 directing the conduct of the company’s meeting?
In arguing this issue, learned Counsel contended that the Appellant’s application, which was refused by the Trial Court, wrongly requested the

Court to reverse its own Order in contravention of the settled legal principle that a Court cannot review its own order once granted as the Court is functus officio. The order can only be reviewed by an appellate Court. Clearly, the Appellant did not demonstrate any justification to sustain its request to the Trial Court to review and set aside its own Order. Counsel finally urged this Court to dismiss this Appeal and affirm the decision of the Court below.

RESOLUTION OF APPEAL
The first issue nominated for the determination of this appeal is whether the Order of Court made on the 24th of February 2009 was validly made. It would be recalled that the bone of contention in this Appeal revolves around the Order made by the Court below on the 24th day of February, 2009 when the Court following a motion ex-parte filed by Madam Catherin Efejuku made the following Order on the 24th of February, 2009:
“An Order that an Extra-Ordinary General Meeting of Ghorodemi Limited may be convened for the purposes of and if thought fit passing as a special resolution, the resolution set forth in the schedule hereto”.

The contention of learned Appellant’s Counsel is that the Court below erred in law by making such an Order and that although the Court below has such powers conferred upon it by virtue of Section 223 of the Companies and Allied Matters’ Act, but that there is nothing in the said Section which gives a Court of law the power to enable a meeting to be called for purposes of passing a resolution that an individual be appointed as Director of a Company as was done in the instant case. Counsel cited the case ofIRO vs. PARK (Supra) in support of his contention where he said that the apex Court interpreted a similar provision as Section 223 of CAMA in the old Companies’ Act, of 1968 then Section 128(1), which is in pari materia with the Section 223 of the CAMA.
To begin with, this Court has had to take a careful and calm look at the Section 223 of the CAMA and without having to mince words, agree with learned Counsel that it is the Section of the CAMA that is designed to address the situation in the management of the Company where due to exigencies a shortfall in the membership of Company or board of directors has occurred and in this connection the need to examine the said

Section 223(2) of the CAMA in this regard, cannot be overemphasized. For the avoidance of any doubt, the said Section 223(2) of the CAMA is reproduced, thus;
1. If for any reason it is impracticable to call a meeting of a company or of the board of directors in any manner in which meetings of that company or board may be called, or to conduct the meeting of the company or board in the manner prescribed by the articles or this Act, the Court may, either of its own motion or on the application of any director of the company or of any member of the company who would be entitled to vote at the meeting in the case of the meeting of the company, and of any director of the company, in case of the meeting of the board, order a meeting of the company or board, as the case may be, to be called, held and conducted in such manner as the Court thinks fit, and where any such order is made, may give such ancillary or consequential directions as it thinks expedient.
2. It is hereby declared that the directions that may be given under Subsection (1) of this section shall include a direction that one member of the company present in person or by proxy in the case of a

meeting of the company, and one director in the case of the board may, apply to the Court for an order to take a decision which shall bind all the members.
3. Any meeting called, held and conducted in accordance with an order under Subsection (1) of this section, shall for all purposes be deemed to be a meeting of the company or of the board of directors duly called, held and conducted.
In interpreting Section 223 of the CAMA as reproduced here above the apex Court in ORJI vs. DTM (NIG) LTD. (2009) 18 NWLR (PT. 1173) 467 AT 491 cited by learned Respondent’s Counsel held that a director or member of a company can initiate an action in Court for the purpose of calling or conducting a meeting under Section 223(1). The apex Court’s decision clearly validates a situation, such as in the instant appeal, where the Trial Court exercised its discretion to order the meeting of the company because there was only one surviving member and director of the company and it had become impracticable to call a meeting of the company. Learned Respondent’s Counsel has contended that the Appellant misapplied the decision ofIRO vs. PARK (Supra) an issue this Court finds

unable to agree with as the apex Court had earlier established that a member or director of a company may apply to Court to convene the meeting of the company. In the said case of IRO vs. PARK (Supra) it is instructive to note that the Applicant, who had remained the only Shareholder and Director of a company, requested an order of Court to allow him hold and conduct a meeting of the company pursuant to Section 128 of the then Companies Decree, (similar to Section 223 of CAMA). The Court per COKER, JSC held:
“… Section 128(1) should be invoked where: “for any reasons it is impracticable to call a meeting of a company” and that in such circumstances as described in the Section, the Court may “order a meeting of the company to be called, held and conducted in such manner as the Court thinks fit”. The sub-section also empowers the Court to make “ancillary or consequential directions” as the Court thinks expedient in circumstances in which it may be necessary for such directions to be given as would make the holding and conduct of the meeting possible and/or effectual. Section 128(2) validates the deliberations and decisions taken at such a

meeting insofar as such meeting is held in accordance with the – provisions of Section 128(1).”
The apex Court also cited with approval, in the case of IRO vs. PARK (Supra) the case of RE-EL SOMBERO LTD (1958) CH.D. 900 as follows:
“In re El Sombrero Ltd. (1958) Ch. D. 900, Wynn-Parry, J., dealing with the provisions of a section of the English Companies Act, 1945 (i.e. Section 135 which is in pari materia with Section 128 of the Companies Decree) ordered the holding of a meeting at which one member present might constitute the quorum and such meeting to be held in the offices of the company’s solicitors.
Arising from the foregoing, this Court therefore finds it unable to agree with learned Appellant’s Counsel that the Court below did not properly exercise its discretionary powers under Section 223 (1) when it ordered:
“That it is hereby granted that an Extra-Ordinary General Meeting of Ghorodemi Limited may be convened for the purposes of and if thought fit passing as a special resolution, the resolution set forth in the Schedule hereto…”
It may, perhaps be appropriate at this stage to critically examine and/or critique the

decision of the Court below most importantly with the view of subjecting it to critical review to see whether the Court went outside the powers conferred upon it in making the Orders made under Section 223 of the CAMA or not. It is of course clear from the Orders made that the Court neither dictated the business of the meeting nor directed the appointment of any director. It only ordered that “an Extraordinary General Meeting of Ghorodemi Limited may be convened for the purpose of “and if thought fit” passing as a special resolution, the resolution set forth in the schedule hereto…”
It is rather glaring, that by the use of the phrase: “if thought fit”, the Court below left no one in doubt that it effectively left the business to be carried out at the meeting entirely to the discretion of the company. Although the Court below was informed of the proposed resolution or the business of the meeting, it did not interfere with or restrict the powers of the company in running its affairs. The Company could have decided that it did not think it fit to appoint anyone as director and that would have ended the matter at that stage. Clearly, the Court below was not

unmindful of the limit of its powers under Section 223 and therefore restrained itself from interfering with the internal affairs of the company. Accordingly, the Trial Court, having re-examined its Order of February 24, 2009, held that: “In the present case, the Order of Court is only directed for convening of meeting for purpose of and if thought fit pass special resolution set forth in the schedule to the application” (See paragraph 3, page 189 of the Records).
As it still has to do with the Appellant’s interpretation of Section 223 of the CAMA where learned Appellant’s Counsel had contended that the Court’s Order of the 24th of February, 2009 was ineffectual if the Court in addition to ordering the holding of the meeting did not specifically make consequential directions such as those authorizing the only surviving member/director of the Company to hold the meeting. The fallacy inherent in that interpretation is that it introduces undue complexity and unnecessary twists and turns into a statutory procedure that was deliberately designed to mitigate the practical difficulty of continuing the operation of the company where there is only one surviving

director/member of the company.
On the issue still, where the Appellant suggests that the operation of Section 223 is in two stages and that the Respondent was required to first apply for the holding of the meeting; and after the conduct of the meeting apply to Court for an Order to take a decision which would bind all the members. The skewed interpretation is rather novel. Appellant cited no legal authorities to back up his suggestions and contrary to Appellant’s contention, Section 233 makes no provision for the so-called: “two-stages” of applying for a Court ordered meeting. In agreement with learned Respondent’s Counsel, the expediency, which in the first instance necessitated the application for the Court-ordered meeting, is that there is only one surviving member/director and it is thus impracticable to call a meeting. Once a Court, faced with this factual circumstance makes an order convening the meeting of the Company the order is effectual. Thus, Section 223 (2) provides thus:
“Any meeting called, held and conducted in accordance with an order under Subsection (1) of this section, shall for all purposes be deemed to be a meeting of the company

or of the board of directors duly called, held and conducted”.
It is in this regard that this Court is in total agreement with learned Respondent’s Counsel that Section 223(2) is a self-executing provision. According to the learned authors of Black’s Law Dictionary, 8th Edition at page 1391, a provision in any written law or instrument is self-executing when it is “effective immediately without the need of any type of implementing action”. Characteristically, Section 223 (2) is an example of such provision and that is why the meeting held pursuant to Sub-Section 1 of that Section is automatically deemed to be the meeting of the Company. There is a manifest legislative intention to immediately validate the meeting so far as it is held as ordered by the Court. The provision is complete in itself and does not need the aid of an enabling Court order or any intervening Court action to become fully operative. Consequently, there is no requirement at all that the surviving member/director must apply or re-apply to Court before the decisions or resolutions at the meeting can be binding on the company. Arising from the foregoing, the issue one is resolved

against the Appellant.

On the issue of whether the Appellant who is neither a member, director, legal representative of a deceased shareholder/member of Ghorodemi Limited apply to set aside the Trial Court’s Order directing the Respondent to convene the company’s meeting; or complain of any irregularity in the company’s affairs, nominated by the Respondents and distilled from their Notice of intention to contend that judgment of the Court below should be affirmed on Grounds other than those relied upon by the Court below, it is apposite at this stage to agree with learned Respondents’ Counsel that the Appellant who is neither a member, director, nor legal representative of a deceased shareholder/member of Ghorodemi Limited has no right at all to apply to set aside the Trial Court’s Order directing the Respondent to convene the company’s meeting; or complain of any irregularity in the appointment of Director of the company.
The settled position of the law is that matters regarding the holding of a Company’s meeting or appointment of Directors of the Company are statutorily structured as matters exclusively within the internal affairs of the

company and as such, no party except the Company itself can seek a relief to regularize or rectify any perceived irregularities in the conduct of the Company’s meeting or in the appointment of a director. See the old case of FOSS vs. HARBOTTLE (1843) 2 HARE 461, which plays the role of a gatekeeper regulating as it were the controlled circumstances where a member/shareholder may bring an action in respect of matters concerning the company. The Rule in FOSS vs. HARBOTTLE (Supra) has since been codified in Section 299 of the CAMA, which provides thus:
“Subject to the provision of this Act, where irregularities has been committed in the course of a company’s affairs or any wrong has been done to the company, only the company can sue to remedy that wrong and only the company can rectify the irregular conduct.”
Arising from the foregoing Rule and perhaps, by parity of reasoning, if in a situation where a wrong done to the Company, the Company remains the ‘proper Plaintiff, so that only the Company may sue and an individual shareholder (or group of shareholders) or members may not sue (‘proper plaintiff rule’), then how appropriately can the status

of this Appellant be classified in this case? Here is a case in which the Appellant is neither a shareholder/member nor director of the Company and yet had sought Orders in Court about some perceived wrongs done to the Company. Learned Respondents’ Counsel cited the case of MOZLEY vs. ALSTON (Supra) where two shareholders tried unsuccessfully to restrain four directors of the Company from acting as directors when they should retired on rotation under the articles. The Court in that case held that their action must fail because the acts complained of were wrongs done to the Company and that only the Company could therefore sue. See the case of YALAJU-AMAYE vs. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD & ORS (1990) LPELR-3511 (SC), where the apex Court per KARIBI-WHYTE, JSC had this to say on the subject:
“The rule in Foss v. Harbottle (supra) as formulated was very clearly explained in Edwards v. Halliwell (1950) 2 All E.R. 1064 at 1066 where Jenkins, L.J. stated it as follows- “The rule in Foss v. Harbottle, as I understand it, comes to mean no more than this. First, the proper plaintiff in an action in respect of a wrong alleged to be done

to a company or association of persons is prima facie the company or the association of persons itself. Secondly, where the alleged wrong is a transaction which might be made binding on the company or association and on all its members by a simple majority of the members, no individual member of the company is allowed to maintain an action in respect of that matter for the simple reason that, if a mere majority of the company or association is in favour of what has been done, then cadit quaestio. Thus the company or association is the proper plaintiff in all actions in respect of injuries done to it. No individual will be allowed to bring actions in respect of acts done to the company which could be ratified by a simple majority of its members…”
It will be recalled that the Respondents herein deposed in paragraph 5 of their Counter-affidavit to Applicant’s Motion dated 22nd October, 2010, that the Appellant is a stranger to the deceased and that his alleged paternity in relation to the deceased Fred Egbe is seriously in doubt and subject of Suit No: LD/141/2009: Peter Aziza v. Madam Efejuku & Ors pending before the Lagos High Court. Having been

apprised of the foregoing, this Court is unable to disagree with learned Respondent’s Counsel that at best, the Appellant’s legal right is contingent upon the following:
1. Successful proof of his paternity and beneficiary rights to the Estate of the deceased Fred Egbe in Suit No: LD/141/2009 before the Lagos High Court, his appointment as one of the personal representatives of the Estate of Fred Egbe because the legal personal representatives of the deceased Fred Egbe are the only persons recognized by Section 155 (1) of CAMA as having any title to his interest in the company;
2. The transmission of the shares of the deceased to the personal representatives of the deceased as required by Section 155 (1) of Companies and Allied Matters Act;
3. The registration of the personal representatives or the beneficiaries (in whom title to the shares of the deceased has devolved) as members of the company as required by Section 155 (2) and 79 (2) of Companies and Allied Matters Act.
Against the backdrop of the situation in which the Appellant has not satisfied any of the statutory conditions listed here above, this Court is of the view that his

action at this stage is rather premature. This Court is however, not unmindful of the reactions of the Appellant in his Reply brief filed on the 3-5-2019 on the issue distilled from Ground 1 of From 10B, i.e., the Notice of Intention to contend that the trial Court’s judgment should be affirmed on grounds other than those relied upon by the trial Court. The only concern of the Appellant in the said Reply brief on the issue is that the Respondent’s Notice is not meant to raise fresh matters which had not come up for consideration before the Court below. This Court agrees with the Appellant on this point of concern, but disagrees that the Respondent’s Notice filed herein has raised issues which did not come up for consideration at the Court below. In the instant Appeal, the issue that Respondent’s Notice has distilled from Ground 1 of From 10B, is the question of the Appellant’s Locus standi vis-a-vis the Rule of FOSS vs. HARBOTTLE (Supra) and Section 299 of the CAMA, which was not only part of the subject matter in the Ruling of the Court below on the 26-3-2010 between the parties per OKECHUKWU J. OKEKE, J but also subject of the Appellant’s Reply Address on

points of law in Suit No: FHC/B/CS/12/2009 at pages 160 to 177 of the printed records.

It is instructive also that on the 3-2-2011, the same issues were raised, argued and adopted before the Court by the Respondents at the Court below and that their reason for making it the subject matter of their Respondents’ Notice encapsulated in their Ground 1 of Form 10B may not be unconnected with the fact that the Court had ruled in their favour and now requests that this Court should affirm the Ruling of the Court below on a Ground not relied upon by the Court below. Perhaps, the question to address here is what exactly is a Respondent’s Notice? A Respondent’s Notice ordinarily, simply postulates that the approach of the Court below the case, was correct but that his conclusions had failed to take into consideration other factors which supports its decision and thereby contends that the judgment of the trial Judge ought to be varied or affirmed on other grounds, than the ones relied upon by the Court below.
Usually Order 9 of the Court of Appeal Rules 2016, makes provisions for two forms of Respondent’s Notice and that in the instant case, the Respondents

have come under the second one under sub-Rule 2, which states:- (2) A Respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds other than those relied upon by that Court must give notice to that effect specifying the grounds of that contention. In the instant Appeal, the Respondents’ Notice was filed on the 5-4-2019 and the Appellants have not been heard to complain here that they were not served any Notices. The Respondents have done so and this Court is satisfied that the notice is quite valid and has merit. The intention, therefore of the Respondent here is that of affirmation and no more. This Court is fortified by the lucid observations of the apex Court in the case of ARISONS TRD. & ENGR. CO. LTD vs. MIL. GOV. OF OGUN STATE & ORS. (2009) LPELR-554 per MUHAMMAD, JSC when the Court had this to say on the subject:
“Let me first and foremost draw attention that a Respondent’s Notice as provided by Order 3 Rule 14(2) of the Court of Appeal Rules is not and does not represent a Notice of Appeal. This is because a Respondent’s Notice does not contemplate a situation where the applicant will

be entitled to ask for a complete reversal in his favour of findings of fact made against him on certain issues contested in the case, though he may have succeeded on other issues. The Respondents’ Notice filed in this appeal arose from the appeal on hand. I have perused the grounds upon which the Respondents’ Notice was predicated. I have carefully perused, compared and contrasted with the reliefs claimed in the appeal and I am contented that the respondents were neither asking for a complete reversal of the findings of fact made against them nor did they ask for anything that would have fundamentally altered the case. See: ADELEKE V. AKINOLUGBADE (1987) 3 NWLR (part 60) 214 at page 216; ATTORNEY GENERAL OYO STATE V. FAIRLAKES HOTELS (No.2) Supra. The Respondents’ Notice in this matter, in my view, was validly raised.”

By borrowing a leaf from the lucid observation of the apex Court on the issue, it is obvious that the Respondents’ Notice filed in this Appeal arose from the Appeal on hand. This Court has carefully perused the grounds upon which the Respondents’ Notice was predicated. That has also carefully perused, compared and contrasted with the

reliefs claimed in the Appeal and this Court is contented that the Respondents were neither asking for a complete reversal of the findings of fact made by the Court below nor did they ask for anything that would have fundamentally altered the case. To this end, this issue is once again resolved in favour of the Respondents.

On the issue three nominated by the Respondents, dealing with the question of whether the Court below was not functus officio in respect of its Order made on 24th February, 2009 directing the conduct of the company’s meeting, the simple contention was that the Court below cannot reverse its own Order in contravention of the settled legal principle that a Court cannot review its own order once granted as the Court is functus officio; and that the order so made can only be reviewed by an Appellate Court. This of course represents the general position of the law on the subject even though there are clear exceptions as in all other general principles of law, some of which the Appellant competently argued in his Reply brief. But what seems to be the million dollar question here is: did the Appellant demonstrate any justification to sustain

its request before the Court below to review and set aside its own Order? The answer here can only be rendered in the negative as even the Appellant’s Reply brief contains no such answer has been proffered anywhere.

Arising from the foregoing, all the issues nominated by the parties are resolved against the Appellant and this Appeal is therefore moribund as it is lacking in merit and accordingly dismissed. There are no orders as to cost.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading the draft of the leading judgment, in this appeal, just delivered by my learned Brother Dr. F.O. Oho, JCA and agree that the appeal is devoid of merits. I also dismiss the appeal accordingly.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: The Respondents. the beneficiary of the refusal of the Court below to set aside its Ex-parte Order made on 24/2/2009 but unsuccessfully sought to be set aside by the Appellant, had on 5/4/2019 filed a Respondents’ Notice to contend that the Ruling of the Court delivered on 5/7/2011 dismissing the Appellant’s Motion on Notice filed on 22/10/2010 be affirmed on grounds other than those relied upon by the Court below in

its Ruling appealed against by the Appellant. The contention in the Respondents’ Notice is that the Appellant is neither a Member, Director, Legal Representative of a deceased Shareholder or Member of Ghorodemi Limited lacks the right to apply to set aside the Ex-parte Order of the Court below directing the Respondents to convene a meeting of the said Company. The legal basis for this contention was that in law only the said Company or its Members of Directors can challenge the conduct of the meeting of the said Company or the appointment of its Directors.

In the lead judgment, a draft copy of which I was privileged to have read in advance, just delivered by my lord, Dr. Frederick Oziakpono Oho JCA, the Respondents’ Notice was upheld by virtue of the very old English celebrated Rule in Foss V. Harbottle 1843 2 HARE 461 as well as its, apparently, codification in Section 299 of the Companies and Allied Matters Act 2004. See Edwards V. Halliwell 1950 2 All ER 1064. See also Mozley V. Alston 41 ER 833: Yalaju-Amaye V. Associated Registered Engineering Contractors Limited & Ors 1990 LPELR – 3511(SC).

Now, whilst it is true that a Respondent can

by an effective use of a Respondent’s Notice dislodge an appeal on the merit and obtained a favorable judgment of an appellate Court affirming the judgment of the lower Court even where it turns out the reason originally relied upon by the lower Court was wrong, yet the use of a Respondent’s Notice, I must reiterate has it own inherent disaster if misapplied by a Respondent. In Inspector General Of Police & Ors V. Peter O. Ikpila & Anor (2015) LPELR-40630(CA), this Court per Georgewill JCA, had cause to consider the proper use of a Respondent’s Notice and the dangers lurking therein if improperly used or misapplied by a respondent and pronounced inter alia thus:
“Now, the purpose of a Respondent’s Notice is that the judgment or decision appealed against should be affirmed on grounds other than those relied upon by the Court in reaching its decision appealed against. It is not a carte blank or an open cheque on which a Respondent could raise every contentions as he so wishes since in the grounds so relied upon by the Respondent must be apparent on the face of the printed record of appeal, having regards to the facts of the case, the

applicable and the judgment appealed against… I consider it pertinent at this juncture to point it at once that a Respondent wishing and desirous of filing a Respondent’s Notice must ponder on it more seriously and retrospectively in the light of the final conclusions reached in the judgment in his favor and not to venture or dabble into it lightly since as inherent in its nature and purport a Respondent’s Notice presupposes or concedes that the ground(s) relied on in favor of the Respondent in the judgment appealed against was wrong and the probability of the Respondent’s Notice, as in the instant case, being found to be lacking in merit. The saving grace for such a Respondent however, is the well settled position of the law that once the judgment of the Lower Court is correct, the fact that the reason relied upon is wrong will not by itself alone result into a setting aside of the judgment since an appellate Court is not so much concerned whether the reason(s) adduced right or wrong but rather concerned with whether the decision or conclusion reached was correct or wrong, if correct the reason given whether right or wrong is of no serious moment.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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See also Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198; Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134.”

Now, the Respondents had also argued. but very unsuccessfully too as found in the lead judgment with which I am in complete agreement, that the Court below having on 24/2/2009 made its Ex-parte Order in their favor had become functus officio to set same aside on the application of and at the instance of the Appellant. Indeed, these are the sort of arguments that readily calls into question the legality or otherwise of ex-parte Orders, for the Respondents who had obtained an Ex-parte Order, without notice to the Appellant felt aggrieved with the said Ex-parte Order, to turn round to contend that the Appellant ought not to be given even a hearing because the Court below which had granted the Ex-parte Order in favor of the Respondents without a hearing of the Appellant had become functus officio. What impudence.

In law, it is one thing to contend that the Appellant failed to make out any grounds for the Court below to set aside its Ex-parte Order, as found and applied in the lead judgment but it is quite

another thing, unsupported by the law, for the Respondents to contend as they did, but quite erroneously too, that the Court below is functus officio to consider whether or not to set aside its Ex-parte Order at the instance of the party adversely affected by it. The Latin phrase “functus officio” ordinarily means a task performed, having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. However, in practice the idea is that the specific duties and functions that an officer was legally empowered and charged to perform have now been wholly accomplished and thus, the officer has no further authority or legal competence based on the original commission. This is because the thing which originally had life had become dead or moribund after the performance of the duty or function by the authority. Thus, a Judge or Court, who has decided a question brought before him becomes “functus officio” and therefore, cannot review his own decision except on grounds of want of jurisdiction, fraud, illegality etc. See Alhaji Idris Alaya V. Engr. Adewumi Ademola Isaac (2019) LPELR – 46881

(CA) per Barka JCA.
It is settled law that once a Court of competent jurisdiction delivers its judgment on a matter, it cannot revisit or review or set aside the said judgment except under certain conditions and more importantly, a Court lack the jurisdiction to determine an issue it is “functus officio” in respect of the issue or where the proceedings relating to the issue is an abuse of Court process. See Black’s Law Dictionary, 6th Edition @ p. 673. See also Buhari V. INEC & Ors (2008) LPELR – 814 (SC); Dingyadi & Anor V. INEC & Ors (2011) LPELR – 950(SC).

Having said as above, I thought I should conclude this contribution to the rich analysis in the lead judgment by reiterating that in law, Ex-parte Orders of Court are constitutional and therefore, do not amount to breach of the provisions of Section 36(1) of the Constitution of Nigeria 1999 (as amended). Thus, Ex-parte proceedings, which are by their nature one-sided, is one in which the party seeking the Order must satisfy the Court, upon sufficient material being presented, that delay would occasion an irreparable damage or mischief, and that the Order sought

ought to be made in the absence of other party. In Ex-parte proceedings, it would appear that there are no and ought not be any determination yet of the rights, liabilities and obligations of the parties at that stage and therefore, such proceedings, unless otherwise tainted, does not constitute any breach of the right to fair hearing of the parties before the Court. See 7-Up Bottling Co. Ltd V. Abiola & Sons Ltd (1995) 5 NWLR (Pt. 383) 257 p. 277, where it was reiterated inter alia thus:
“If, as it was in this case, the learned trial Judge could not properly determine any contentious issue when the motion ex-parte for an order of interim injunction came before him, the question of giving an opportunity of being heard to the appellants before determining the application could not arise and the provisions of Section 33(1) of the Constitution (Now Section 36 (1)) were not applicable and were not violated.”
Thus, in generally, Ex-parte orders resulting from Ex-parte proceedings, unlike final decisions or even interlocutory decisions if I may add are temporary in nature, so that they do not involve the determination of the civil rights and

obligations of the parties in the proceedings as envisaged by Section 36 (1) of the Constitution of Nigeria 1999 (as amended). It follows therefore, that the Ex-parte Order made by the Court below on 24/2/2009 in favor of the Respondents is valid and thus can only be set aside either by the Court below or this Court in this appeal upon satisfactory proof by the Appellant that it was made either in want of jurisdiction or on misrepresentation or withholding or suppression of material facts and or obtained by fraud, illegality etc., all or none of as made out by the Appellant. See Alhaji Idris Alaya V. Engr. Adewumi Ademola Isaac (2019) LPELR – 46881(CA) per Barka JCA. See also First City Monument Bank Plc. V. Tamstel Nigeria Ltd & Ors (2017) LPELR – 42509 (CA) per Orji-Abadua JCA; Vaswani Trading Company V. Savalakh and Co (1972) All NLR 922.

It is for the above words of mine in adumbration of and for the fuller lucid reasoning so adroitly marshaled out in the lead judgment that I too hold that this appeal is bereft of any iota of merit and therefore, liable to be dismissed. I too hereby dismiss it. I shall abide by the consequential Orders made in

the lead judgment, including the Order as to no cost.

Appearances:

I. EMMANUEL, ESQ. For Appellant(s)

MRS. VICTORIA ALONGE For Respondent(s)