SIGMA ENGINEERING & CONSTRUCTION LIMITED v. NIGERIA AIRWAYS LIMITED & ORS. (2013)

SIGMA ENGINEERING & CONSTRUCTION LIMITED v. NIGERIA AIRWAYS LIMITED & ORS.

(2013)LCN/5888(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of February, 2013

CA/A/102/2008

RATIO

COURT: THE ATTITUDE OF THE COURT ON THE APPROPRIATE WAY TO INSTITUTE AN ACTION BY ORIGINATING SUMMONS

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

SIGMA ENGINEERING & CONSTRUCTION LIMITED Appellant(s)

AND

1. NIGERIA AIRWAYS LTD (IN LIQUIDATION)
2. ADE BABINGTON-ASHAYE
3. CPL PROPERTIES & INVESTMENTS LTD.
4. THE MINISTER IN THE PRESIDENCY/CHAIRMAN FEDERAL CAPITAL DEVELOPMENT AUTHORITY
5. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
6. THE ATTORNEY-GENERAL OF THE FEDERATION Respondent(s)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): On the 30th of November 2007, Justice S. J. Adah of the Federal High Court Abuja, delivered a judgment in favour of the 1st, 2nd and 3rd respondents herein, as applicants at the trial court. This appeal arose from that judgment.
The facts in brief, are that the plot in dispute, Plot No. 390 Central Area Abuja and covered by certificate of occupancy No.FCT/ABU/MISC/3033 dated 16/8/89 was allocated to the 1st respondent herein. On the 9/7/2004, the Federal High Court issued a winding-up Order, liquidating the 1st respondent and appointed the 2nd respondent herein, as the liquidator. He then assigned the property in dispute by outright sale, to the 3rd respondent herein, for the sum of N150 million.
By a Notice of Revocation dated the 10/5/05 and said to have been served on the 1st and 2nd respondents on 31/8/05, the title of the 1st respondent in the land in dispute, was revoked by the 4th respondent herein, and it was re-allocated to the appellant herein, who sought for, and obtained the permission of the 5th respondent to develop the property. The appellant, it was said, moved into the plot in dispute and commenced development, an action considered as trespass and destruction of property by the 1st and 2nd respondents, since they contended that there was no valid revocation and re-allocation of the land in dispute, especially as the Order of liquidation by the Federal High Court was still subsisting and they had not been served with any notice of revocation. The 1st, 2nd, and 3rd respondents’ complaint to the 4th respondent did not yield any fruitful result for them. They therefore commenced an action at the Federal High Court, by Originating Summons dated the 13/9/06, seeking for 19 Declaratory Reliefs, the most crucial, being –
(a) An Order setting aside the purported revocation of certificate of occupancy No. FCT/ABU/MISC/3033 in the name of 1st Applicant and covering Plot No. 390 Central Area Abuja for being ab initio invalid illegal, null and void.
(b) An Order setting aside any document of title or certificate of occupancy relating to Plot No. 390 Central Area Abuja belonging to the 1st Applicant issued by the 1st and 2nd Respondents in favour of the 4th Respondent or to any person not deriving title from the 1st and 2nd Applicants.
(c) A declaration that there is a valid and subsisting sale/assignment agreement with respect to the 1st Applicant’s property in dispute, between the 2nd Applicant (acting for the 1st Applicant) and the 3rd Applicant.
(d) A declaration that the forcible entry by the 4th Respondent upon the Land in dispute on the 7/9/06 while the 1st applicant was in peaceable possession thereof, and the subsequent destruction of the 1st Applicant’s extensive improvements thereon in the circumstances of this case, are wrongful and illegal.
(e) An Order of injunction restraining the 4th Respondent forthwith from perpetrating further acts of trespass and wanton destruction of the improvements in dispute belonging to and in possession of the 1st Applicant.
(f) The sum of N30 million as special damages against the 4th Respondent for trespass and wanton destruction of the 1st Applicant’s structures on the property in question.
(g) The sum of 20 million being general damages against all the Respondents. Alternatively.
(h) A declaration that the purported revocation of the Certificate of Occupancy No. FCT/ABU/MISC/3033 in respect of Plot No. 390 Central Area Abuja, under the circumstances, is null and void for failure to comply with the procedure laid down in Section 28 of the Land use Act for a valid revocation.
The Appellant filed a Notice of preliminary objection dated the 28th of February 2007, contending amongst other grounds, that the suit was wrongly commenced by way of Originating Summons. The 4th and 5th respondents also filed a Notice of Preliminary objection dated the 16/1/07, on the ground that the action was statute-barred. The respondents to the preliminary objection filed counter-affidavits. Thereafter, the respondents to the Suit also filed counter-affidavits to the affidavits in support of the Originating Summons. The trial court overruled the Preliminary Objection and granted all the reliefs prayed for in the Originating Summons, except “reliefs 17 and 18.” He awarded general damages in favour of the respondents herein, against the appellant herein, in the sum of N5 million.
Dissatisfied with the judgment, the appellant filed a Notice of Appeal and four grounds on the 18/12/07, which he subsequently amended with the leave of court on the 22/2/2010.
The four grounds of appeal without their particulars are: –
(1) The learned trial court, erred in Law and thereby occasioned miscarriage of Justice when it held as follows inter alia.
“…….from the claims of the plaintiffs and the processes filed in this case there is nothing suggestive of any dispute of facts that will prohibit the deployment of Originating Summons in this case.”
(2) The learned trial judge erred in Law which error has led to miscarriage of justice when he held that:
“……since the Defendants/Objectors have not proved that the notice of revocation was received as requested by Section 28(6), (7) of the Land Use Act, on 31/8/05 as alleged, time in this case cannot be computed from that date.”
(3) The learned trial judge erred in Law which error has led to a transparent miscarriage of justice in holding that:
“……from the provision of Section 413 and 414 of the Companies and Allied Matters Act, any disposition of the property of the 1st plaintiff in any form without the leave of court is null and void.”
(4) The learned trial judge misdirected himself in the Affidavit evidence which error has occasioned miscarriage of justice in holding that:
“……on the issue of general damages relief 19, the plaintiffs have from the facts before the court suffered some general damages which must be awarded to the plaintiffs. 4th Defendant entered the premises and knocked off the structure of the 1st plaintiff under construction. A sum of N5 million damages is therefore awarded in favour of the plaintiffs against the 4th Defendant.”
The appellant’s brief deemed filed on the 1/2/2011, was settled by its counsel A. C. Mustapha. In it, four Issues for determination were identified thus: –
1. Whether or not there was sufficient dispute of fact at the lower court in determination of the issues thereby precluding the use of Originating Summons?
2. Whether or not the provisions of Section 413 and 414 of the Companies and Allied Matters Act ended or limited the exercise of the statutory powers of the 4th Respondent to revoke under the Land Use Act and whether any such revocation amounted to “Acts of disposition” contemplated under the provisions of Section 413 and 414 of the said Act.
3. Whether or not the 1st and 2nd Respondents were served with the Notice of Revocation as contemplated by the relevant provisions of the Land Use Act and if answered in the affirmative, whether considering the express provisions of the Public Officers Protection Act, the entire Suit was not statute barred at the time it was instituted at the lower court?
4. Whether there was any proof before the court without taking oral evidence to show that no Appellant “knocked off” the structures of the 1st Respondent thereby warranting the award of general damages in the sum of N5 million against the appellant in favour of the 1st and 2nd Respondents?
In the 1st, 2nd and 3rd respondents’ brief produced in very tiny characters, straining the eyes, filed on the 9/12/11 by Jumbo Festus, their learned counsel, four Issues were also identified as follows: –
1. Whether the learned trial court was not right to have held that there was nothing suggestive of any dispute of facts that would prohibit the deployment of Original Summons in the case at the trial court.
2. Whether the learned trial court was not right to have held that from the provisions of Section 413 and 414 of the Companies and Allied Matters Act, any disposition of the property of the 1st Respondent in any form without the leave of court is null and void.
3. Whether the letter of revocation dated 10th May 2005 and allegedly served on the 1st and 2nd Respondents on 31st August 2005, amounts to a valid revocation of the 1st Respondent’s Right of Occupancy in view of the provisions of Section 28(6), (7) of the Land Use Act, and whether 1st, 2nd and 3rd Respondents’ Suit was statute barred at the trial court.
4. Whether the award of N5 million Naira by the Honorable trial court as general damages in favour of the 1st, 2nd and 3rd Respondents was not proper in the light of available affidavit and documentary evidence on record.
The Issues identified by the appellant and the 1st, 2nd and 3rd respondents are very similar. I shall utilise the Issues identified by the appellant in resolving this appeal.
ISSUES NO. 1
Whether the learned trial court was not right to have held that there was nothing suggestive of any dispute of facts that would prohibit the deployment of Originating Summons in the case at the trial court.
Learned counsel for the appellant referred to Order 2 Rule (2)(a) and (b) of the Federal High Court (Civil Procedure) Rules 2000 and the case of WAKWAH VS. OSSAI (2002) 2 NWLR (Pt. 752) 548 at 561 – 562 to submit that the use of Originating Summons as a means of commencing an action, is permitted only when the issue involves the interpretation of law or other instrument or where there is unlikely to be any substantial dispute of facts. He argued that when the appellant and the 4th and 5th respondents herein filed Notices of Preliminary Objections and counter-affidavits, fundamental disputes of facts germane to the determination of the action, arose, making the use of Originating Summons inappropriate. He cited FAMFA OIL LTD VS. A-G FEDERATION (2003) 9 – 10 SC. Counsel referred to disputes and conflicts on service of revocation notice, trespass and destruction of property and the approval to commence development which he said arose from the affidavits of the parties, and which ought to have been resolved only by the calling of oral evidence. He placed reliance on NPC VS. KRE LG (2001) 7 S.C. (Pt. III) 30 at 103 – 104; AKIN VS. AKINDUTIRE (1966) NLR 137; NWOSU VS. IMO AUTHORITY (1990) 2 NWLR (Pt. 135) 688 and ORIANKWO VS. ORIANKWO (2001) 5 NWLR (Pt. 707) 516 at 523. He urged us to resolve the Issue in favour of the appellant.
The reply of the 1st, 2nd and 3rd respondents through their learned counsel, is that the Originating Summons at the trial court centred upon the interpretation of the provisions of Sections 413, 414, 417, 418, 423, 425, 439, 455 and 449 of the Companies and Allied Matters Act 1990, Section 28 of the Land Use Act and the purported letter of revocation of the interest of the 1st respondent in respect of the plot in question. Since there are not fatal disputes, the procedure was rightly commenced, he argued. He referred to SAUDE VS. ABDULLAHI (1989) 4 NWLR (Pt. 116) 387; A-G BENDEL VS. A-G. FEDERATION (1981) ALL NLR 85; FAMA VS. A-G FEDERATION (2003) 18 NWLR (Pt. 852) 453; IRAKOJU VS. ADELEKE (2007) 4 NWLR (Pt. 1025) 423 and SALEH VS. MUNGONO (2006) 15 NWLR (Pt. 1101) 26 and submitted that the appellant has not been able to show any miscarriage of justice in the use of the Originating Summons procedure and that whatever technical irregularity has been shown, should not be used to defeat justice. Counsel emphasised that even if there were conflicts in the affidavit, they were not substantial enough to warrant the filling of pleadings and calling of oral evidence.
On declaratory reliefs, counsel referred to Order 40 Rules 1 and 2 of the Federal High Court Rules 2000 and the case of DIRECTOR SSS VS. AGBAKOBA (1999) 3 NWLR (Pt. 595) 314 at 354 to submit that they could be made upon an action commenced by Originating summons.
Learned counsel submitted that the trial court considered all the affidavit evidence and documents filed by the parties in coming to conclusion that there were no disputes of facts prohibiting the use of Originating Summons, and that it was entitled to so do – BISIMILLAHI VS. YAGBA EAST L.G. (2003) 4 NWLR (Pt. 810) 329 at 364. He urged us to resolve the Issue in favour of the 1st 2nd and 3rd respondents.
In the appellant’s reply contained in the Appellant’s Reply brief on this issue, learned counsel argued that the case of SAUDE VS. ABDULLAHI (Supra) relied upon by the 1st, 2nd and 3rd respondents, is not applicable here as the facts are different, and that issue of using Originating summons was not canvassed therein at all. Further, that revocation notice, was not is dispute in the case of SAUDE VS. ABDULLAHI (Supra). Counsel equally distinguished the cases of ETIM VS. OBOT (Supra); SALEH VS. MUNGONO (Supra) and EBOLA VS. CONSTAIN (West Africa) (2011) 6 NWLR (Pt. 1242) 111 at 134 as inapplicable.
Now, Order 2 Rule 2 (a) and (b) of the Federal High Court (Civil Procedure) Rules 2000, then applicable to the suit, provides: –
Order 2 rule (2) Proceedings may be begun by Originating Summons where –
(a) the sole or principle question at issue is, or is likely to be one of construction of written law, or of an instrument, or any deed, will, contract or document or some other question of law; or
(b) there is unlikely to be any substantial dispute of fact.
From the above, it is clear that when a Suit is principally about the construction of written law, instrument, deed, will, contract, document or some other question of law, or where there is no likelihood of the facts to be in dispute, the employment of Originating summons will be the appropriate method of commencing the suit. It is employed, when the action is friendly, where the parties agree on the facts and only seek for an interpretation or directive from the court. In such a scenario, the facts do not play a central role. See KEYAMO VS. HOUSE OF ASSEMBLY (2002) 12 S.C. (Pt. 1) 190 Per Iguh JSC. It follows therefore, that when the proceedings are hostile, the disputes are substantial, material and affecting the live issues in the case, it would not be proper to commence the Suit by Originating Summons. See PAM VS. MOHAMMED (2008) 16 NWLR (pt. 1112) 1; OBA ADEYALU II VS. OBA OYEWUNMI (2007) 14 NWLR (Pt. 1053) 1.

In the case of FEDERAL GOVERNMENT OF NIGERIA VS. ZEBRA ENERGY LTD (2002) 3 NWLR (Pt. 754) 471, the trial court had granted the reliefs sought in the action commenced by Originating summons, for declaratory reliefs and an injunction. The Court of Appeal affirmed the decision.
But in EKPUK VS. OKON (2002) 5 NWLR (Pt. 760) 445 at 481, this Court referred to the case of ORIANWO VS. ORIANWO (2001) 5 NWLR (Pt.707) 516, and held that an action for a declaration of title to land, ought not to be commenced by Originating Summons which does not admit of oral evidence. This Court though, went on to hold that the fact that an action was commenced wrongly by Originating Summons instead of by Writ of Summons, will not automatically result in up turning the decision. There must have been injustice or miscarriage of justice – SHUAIBU VS. ARAB BANK (1990) 5 NWLR (Pt. 551) 562.
In NATIONAL BANK OF NIGERIA VS. LADY ALAKIJA (1978) 9 – 10 S.C. 59 at 71, Eso JSC held,
“…..originating summons should only be applicable in such circumstances as where there is no dispute on question of facts or the likelihood of such dispute….”
In the Supreme Court decision of OSSAI VS. WAKWAH (2006) 4 NWLR (Pt. 969) 208, at 229 Mohammed JSC held that –
“although the merits of the originating summons as a way of initiating actions lie in the fact that proceedings commenced thereby are very expeditiously determined, care must be taken to use such proceedings only on resolving questions of law or construction of instruments made in exercise of powers under the law…. The dispute in the present case between the parties which dispute centred on the payment of arrears of rents and mesue profits….is obviously not suitable to be initiated by means of originating summons. Not only that the facts in issue are highly in dispute….the proceedings are not only likely to be contentious but also extremely hostile. To this end, the court below was quite right in holding that the proceedings ought not to have been initiated by originating summons…..”
The above case was followed by INAKOJU VS. ADELEKE (2007) 4 NWLR (Pt. 1025) 423 and OBA ADEYELU II VS. OBA OYEWUNMI (Supra). In ADEYELU II VS. OYEWUNMI (Supra) the Supreme Court per Ogbuagu JSC at page 14 in referring to NATIONAL BANK OF NIGERIA VS. LADY ALAKIJA (Supra); DOHERTY VS. DOHERTY (Supra) and OLOYO VS. ALEGBE (1983) 2 SCNLR 35 at 67, held that –
“It is now formally settled that an originating summons, is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable to make use of this procedure for hostile proceedings where the facts are in dispute as in the instant case leading to this appeal. The cases of DOHERTY VS. DOHERTY (Supra) and the other two case referred to by the court below have put to rest any doubt as to when it is appropriate to institute an action by originating summons……” (underlines mine).
In the originating summons culminating into the instant appeal, the principal and most important issues to my mind, raised there in, is whether there was a Notice of Revocation for the Plot in dispute served on the 1st respondent and when it was served. Closely following this, is the claim for damages for trespass and destruction of property. The question as to whether the 4th respondent can revoke the Plot in dispute when the 1st respondent is under liquidation or not, will arise only if the notice of revocation was served and when, to show that the property had been “disposed of”. Are there disputes or likelihood of disputes on the principal issues?
Pages 12 – 18 of the record of appeal show the affidavit in support of the Originating Summons, sworn to by Chinedu Umeh, a legal practitioner in the law firm of D.D. Dodo, the counsel to the 1st, 2nd and 3rd respondents. In it, at paragraph 19(b), the 1st respondent deposed to the fact that the land in dispute “is a partially developed with an uncompleted office block constructed by the 1st applicant with perimeter fencing….” Paragraph 19(d) at page 16 of the record is a deposition that the 2nd respondent received a letter from the 3rd respondent informing him of a “purported revocation” of the certificate of Occupancy in respect of the land in dispute. Paragraph 20 of the same affidavit is a deposition that counsel for the 1st respondent considered the purported revocation as a “wrong doing” and “illegal”. By paragraphs 22, 23 and 25 of the same affidavit in support of the Originating Summons, it was deposed that the 5th respondent had “purportedly and wrongfully reallocated the property in dispute to Sigma Engineering and Construction Limited” i.e. the appellant herein, who “forcibly entered upon the land on the 7th of September, 2006 defying resistance by the 1st and 3rd respondents security agents, and has destroyed, and continued to destroy the improvements on the property in dispute, with the aid of the Nigeria Police.
Some of the reliefs sought by the 1st, 2nd and 3rd respondents in the Originating Summons are: –
(2) An order setting aside the purported revocation of the certificate of occupancy in the name of the 1st respondent, in respect of the property in dispute for being ab initio invalid, illegal, null and void.
(5) A declaration that the purported revocation of the said certificate of occupancy and the subsequent purported re-allocation of same to the appellant amounts to a clear violation of a subsisting court order and so ultra vires, illegal null and void.
(7) A declaration that the forcible entry by the appellant into the land in dispute and the subsequent destruction of the 1st respondent’s extensive improvements thereon, are wrongful and illegal.
(15) An order of injunction restraining the appellant from further trespass and wanton destruction of the improvements on the property in dispute and belonging to the 1st respondent.
(17) N30 million as special damages against the appellant for trespass and wanton destruction of the 1st respondent’s structures on the property in question.
(18) N20 million general damages against all the respondents.
ALTERNATIVELY:
(19) A declaration that the purported revocation of the certificate of occupancy in respect of the property in dispute, is null and void for failure to comply with the procedure laid down in Section 28 of the Land Use Act for a valid revocation.
The affidavit in opposition to the Originating Summons by the 4th and 5th respondents herein, as 1st and 2nd respondents in the Originating Summons, is at pages 270 – 272. By paragraphs 6 and 7 of this affidavit, the respondents deposed to the fact that one of the conditions attached to the certificate of occupancy granted to the 1st respondent, is to erect and complete building within 2 years from the date of commencement of the certificate and that the 1st respondent had breached this condition by failing to commence any meaningful development on the said plot. The depositions in paragraphs 11 and 12 show that as a result of the breach of the condition, the 4th respondent on 10/5/05 revoked the 1st respondent’s title to the land in question and served the notice of revocation on the 1st and 2nd respondents on the 31/8/05 by registered post. By paragraph 14, it was deposed that “contrary” to the deposition in paragraph 21 of the applicant’s affidavit, the 1st and 2nd applicants were duly served with the Notices of revocation of the certificate of occupancy.
The affidavit in opposition of the appellant, as the 4th respondent to the Originating Summons is contained at pages 258 – 262 of the record. Paragraph 6 thereof states –
“…..the averment that the property is partially developed with an uncompleted office block are blatant lies.”
The appellant deposed to the fact that when it was allocated the land in question by the 4th and 5th respondents, it obtained a letter of approval of its building plans on 30/11/06 and was asked to move to site within 30 days, and that the development control department of the 5th respondent ensured that the land in dispute
“was vacant prior to time the 2nd respondent allowed the 4th respondent (appellant) to move into the site.”
At paragraph 7(h) it deposed to the fact that –
“There was no construction at all on the site, the allegation of the Applicants that an office block was on the site is wholly untrue, a desperate move on the part of the Applicants to lay claim to a land they have long abandoned and given up.”
Paragraph (j) “The 4th Respondent did not meet the security personnel of the Applicants or any security personnel at the site prior to its entry into the site.”
I have gone to this length to re-produce excerpts of the relevant depositions contained in the affidavits of the parties. It is patently obvious, that the facts deposed to in the affidavits are riotously in dispute and they go to the material aspect of the suit. The 4th and 5th respondents have sworn that there was revocation of the land in dispute in respect of the 1st respondent and that the Notice of revocation was served on the 1st and 2nd respondents. The 1st and 2nd respondents have sworn that they have not been served with any revocation Notice and have denied vehemently, that they breached any of the terms contained in the certificate of occupancy. Further, there is a serious dispute as to whether there was any substantial development on the land in dispute or not and whether the appellant had destroyed same, entitling the respondents to the award of special and general damages. The facts in this suit will play a central role and they are highly disputed facts. The proceedings are not only not friendly, they are hostile, with a party calling the other a ‘liar’. It follows therefore, that on the decided authorities earlier recounted in this judgment, showing that any doubt about the inappropriateness of commencing a disputed Suit on Originating Summons has been dissipated, this Suit ought not to have been commenced by means of an Originating Summons. The facts in dispute are material, substantial and affect the live issues in the case. Furthermore, when affidavit evidence are conflicting in an Originating Summons, especially in the instant matter where declarations are sought and whether property is in existence or not and who destroyed same if there was such destruction, oral evidence to resolve the material conflicts, is needed. See N.R.C. VS. CUDJOE (2008) 10 NWLR (Pt. 1095) 329 at 360 and NYA VS. EDEM (2000) 8 NWLR (Pt. 669) 349. I hold that the commencement of this suit by way of an Originating Summons was most improper in the circumstances, as also, the appellant did not appear to have had a full opportunity to defend the case, especially as to the alleged trespass and destruction of property he had seriously and vehemently contended was not in existence, which is tied to the alleged breach of the condition contained in the certificate of occupancy in respect of the disputed land, a breach which needs to be established and proved, most probably by oral evidence, for the reason given for the revocation to be sustainable. The rules of fair hearing had therefore really been breached. I recall the words of Mohammed JSC in OSSAI VS. WAKWAH (Supra) at 229 that:-
“To this end the court below was quite right in holding that the proceedings ought not to have been initiated by originating summons. The setting aside of the judgment of the trial High Court which emerged at the end of the wrong or improper proceedings, coupled with the ordering of a fresh hearing of the matter on pleadings by another judge of the Rivers state High Court is quite in order….”
In the result, Issue No. 1 is therefore resolved in favour of the appellant and against the respondents.
In ADYELU VS. OYEWUNMI (Supra), the Supreme Court held that this Court should express an opinion on the substantive issue, even if it holds that it has no jurisdiction. (KATO VS. CENTRAL BANK OF NIGERIA 9 NWLR (Pt. 214) 126 and PPA VS. PANALPINA (1973) 5 S.C. 77) as an alternative. But where the law is settled, such as the improper or inappropriateness of using Originating Summons for disputed facts or likely to be disputed, the court should not go into the substantive issue. In this wise, I find that it will be highly prejudicial to the parties herein, for me to go and express opinions as to whether there was a revocation and whether it was served on the 1st and 2nd respondents or not, and whether the 1st and 2nd respondents are in breach of the conditions in the certificate of occupancy, to justify the alleged revocation. Certainly, these issues and the issue of trespass and destruction of property cannot be determined fairly at this stage when there is no oral evidence. The issue of construction of the provision of the Companies and Allied Matters Act, cannot be undertaken in vacuo. I decline to do all these.
This appeal has merit and it succeeds on Issue No. 1, which is enough for the moment. The decision of the trial Federal High Court in its judgment delivered on the 30th of November 2008, in Suit No. FHC/ABJ/PET/2/04 is hereby set aside in its entirety. I order the Suit to be heard afresh on pleadings to be filed by the parties, before another judge of the Federal High Court. The Suit is remitted to the Hon. Chief Judge of the Federal High Court, for this purpose.
N30,000 costs to the appellant against all the Respondents.

HUSSEIN MUKHTAR, J.C.A.: I have had the opportunity of reading in draft the lead judgment just rendered by my learned brother, Yahaya, JCA. I agree entirely with his reasoning and conclusion. I too find merit in the appeal and it is accordingly allowed. I abide by all consequential orders made in the judgment inclusive of the one as to costs.

REGINA OBIAGELI NWODO, J.C.A.: I had read in draft before now, the judgment of my learned brother Yahaya, JCA just delivered. I agree with the reasoning contained therein and conclusion arrived thereat which I adopt as mine and allow the appeal.

Appearances

A. U. Mustapha with A. Adeyemo and Dayo Obalola for the Appellant.For Appellant

AND

Jumbo Festus appears with S. A. EigegeFor Respondent