Legalpedia Citation: (2010) Legalpedia (SC) 16313
In the Supreme Court of Nigeria
Fri Jan 22, 2010
Suit Number: SC. 351/2002
CORAM
PARTIES
AGIP (NIGERIA) LTD APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
Under the umbrella of the Nigerian Shareholders Solidarity Association, ten individuals instituted action on behalf of the appellant, Agip (Nigeria) Plc to prevent Agip Petrol International from transferring or selling the 60% shares it owned in the appellant to Unipetrol Nigeria Ltd.
HELD
The writ of summons was incurably bad and therefore a nullity. All orders and judgment made in pursuance of a void writ are themselves void.
ISSUES
(1) Whether in the prevailing circumstance the Court of Appeal was right or erred in declaring that the issuance and service of the writ of summons in this case are null and void. ?
RATIONES DECIDENDI
ESSENCE OF SERVICE OF COURT PROCESSES.
‘Issue of service of process is an essential aspect of our procedural law as it a jurisdictional issue. It is a condition precedent to the competency of court in assuming jurisdiction, and adjudicating over the legal rights of litigants. Any matter or proceedings affected by lapse in the service of process suffers a fundamental flaw. It is therefore a radical and threshold issue. It is the door to the inner chambers of adjudication. Hence it is the conclusion in numerous judicial authorities that it is the fulfillment of such condition precedent like service of process which clothes the courts with competency. It equally gives the party served the opportunity of being heard, present his case and call witnesses.’ Per Adekeye JSC
DERIVATIVE ACTION
A derivative action also known as a shareholder derivative suit is a law suit brought by a shareholder on behalf of a company against a third party. Often the third party is an insider of the corporation such as the directors or executive officers. For over 150 years the rule in Foss v. Harbottle (1843) 2 Hare 461 has been a familiar part of the company landscape. The rule prevents claims by shareholders for reflective losses and provides that if a wrong is done to a company then the company is usually the proper claimant in respect of that wrong. Derivative suits are unique because under the traditional corporate law, management is responsible for bringing and defending the corporation against suit.’ Per Adekeye JSC
CASES CITED
African Newspapers of Nigeria v. Federal Republic of Nigeria, (1995) 2 NWLR pt. 6 pg 137. Ajao v. Alao (1986) 5 NWLR pt. 45 pg. 802 Asore v. Lemonu (1994) 7 NWLR pt. 356 pg. 284 Bamgboye v. University of Ilorin (1999) 10 NWLR pt. 622 pg. 290 Wema Bank Ltd. v. Odulaja (2000) 7 NWLR pt. 663 Pg. 1.
STATUTES REFERRED TO
Company Proceedings Rules 1992Companies and Allied Matters Act