LEGALPEDIA ELECTRONIC CITATION: LERCA/L/709/2014
AREAS OF LAW:
Action, Appeal, Company Law, Interpretation Of Statute, Labour Law, Law Of Banking, Law Of Evidence, Practice And Procedure, Statute, Words And Phrases
SUMMARY OF FACTS
The genesis of the case is that the Appellants were approached by the pre-merger officials of the Respondent to invest in the proposed merger of several banks that metamorphosed to the Respondent-Bank. This was said to be in line with the Re-Capitalization policy of the then Federal Government directing the existing banks to raise their capital bases to certain mark within a stipulated time frame. Overtures were said to have been made to the Appellants that, should they invest as shareholders in the proposed bank; the 2nd Appellant will be made a director for life in the Respondent-Bank. To this end, the sum of N2, 000,000,000.00 (Two Billion Naira) was said to have been invested by the Appellants. Apparently, in line with the assurance, the 2nd Appellant was made a Non-Executive Director of the Respondent-bank on 22/12/2005 and was equally appointed to some of the standing committees of the bank until 15/5/2012 when he was removed at an Annual General Meeting held on that date. The ground for the removal was to the effect that the 2nd Appellant had attained 70 years of age. Being dissatisfied, the Appellants then as “Plaintiffs” initiated a suit against the Respondent herein at the Federal High Court Lagos, vide an Originating Summons for various declarative reliefs and Orders. The trial court held that the originating summons lacked merit and it consequently struck out. Dissatisfied with the decision of the trial court, the Appellant has filed a notice of appeal to the Court of Appeal contending amongst others that the removal of the 2nd Appellant as a director of the Respondent, contravened the Articles of Association of the Respondent and is in violation of the Companies and Allied Matters Act.
ISSUES FOR DETERMINATION
ISSUES FOR DETERMINATION – DUTY OF COURT TO EITHER ADOPT OR REFORMULATE ISSUES FOR DETERMINATION
“I have carefully perused the grounds contained in the Notice of Appeal, the issues formulated therefrom as well as the arguments canvassed by the counsel to the respective parties, and the resolution of this appeal, and I shall have regard to the issues formulated by the parties with the intention of either adopting or reformulating same, as required by law, towards the effective determination of the appeal. See the case of Bankole v Pelu (1991) 8 NWLR (Pt 211) 523 and Gov. Ekiti State v Olubanwo (2017) 3 NWLR (PT 1551) 1 at 23.” PER A.O.OBASEKI – ADEJUMO,J.C.A
CORPORATE PERSONALITY –CONCEPT OF CORPORATE PERSONALITY
“It is an elementary knowledge of corporate law that upon the fulfillment of incorporation requirements, an incorporated company assumes a corporate personality status. Much has been said in expounding the law on who is a “corporate person” and what the concept of corporate personality entails, the concept foist a status of “body corporate” on the company in that the company becomes a sue juris with all the powers of a natural person of full capacity, see Section 38 of CAMA. This confers on the company, the ability to sue and consequently be sued, as provided in Section 37 of CAMA; and held by the court in the often-cited cases of Salome v Salome & Co Ltd(1877) AC 22 and ACB Plc v Emostrade Ltd (2002) 8 NWLR(Pt 770) at 505.” PER A.O.OBASEKI – ADEJUMO,J.C.A
REGIMENTED PERSONALITY – NATURE OF REGIMENTED PERSONALITY
“Nevertheless, a company appears to be more “regimented personality”, a person whose entire dealing is subject to the strict compliance with the dictate of the laws, hence major recourse is had to the Companies and Allied Matters Act, 1990 (CAMA), and other similar statutes which BOFIA is principally one in the case of a bank, for it to be properly and effectively governed and regulated.” PER A.O.OBASEKI – ADEJUMO,J.C.A
MEMORANDUM AND ARTICLES OF ASSOCIATION – IMPORT OF SECTIONS 33 & 41 (1) OF COMPANIES AND ALLIED MATTERS ACT ON THE MEMORANDUM AND ARTICLES OF ASSOCIATION
“I am cautious in reaching any conclusion, other than take guidance what the legislature have provided under Sections 33 & 41 (1) of CAMA to regulate the affairs of companies, particularly as it affects the instant case. The relevant provisions of CAMA are hereunder reproduced:
INTERPRETATION OF STATUTORY PROVISIONS – DUTY OF COURTS IN THE INTERPRETATION OF STATUTORY PROVISIONS
“It is well known in legal circle that the obligation of the court in interpreting the foregoing statutory provisions is to carry out the construction of the statute in order to bring to light the intention of the legislature, the draftsman. In the meantime, this involves the construction of the plain meaning of the words used in the provision of such statute in its ordinary sense. See: Skye Bank v Iwu (2017) LPELR – 42595(SC) and Amaechi v INEC (2008) 5 (Pt 1080) 227.” PER A.O.OBASEKI – ADEJUMO,J.C.A
ARTICLE OF ASSOCIATION – SIGNIFICANCE OF THE ARTICLE OF ASSOCIATION OF A COMPANY
“It is apparent, from the provisions of Section 33 as reproduced above, that the any code of conduct that touches on the operation and management of any company, including the Respondent is to be prescribed by the Article of Association of the Company; a fortiori, by the provisions of Section 41(1) of CAMA, the said Article of Association signifies a contract under seal between the company and its officer on one hand, and the officers of the company and the members on the other hand. This is the decision of the court in United Foam Products Ltd v Opobiyi (2017) LPELR – 43166 (CA).” PER A.O.OBASEKI – ADEJUMO,J.C.A
ARTICLES OF ASSOCIATION –WHETHER THE ARTICLES OF ASSOCIATION OF A COMPANY CAN BE AMENDED
“The law has stated emphatically as reproduced above; a company is governed and regulated through its registered Articles of Association and no more.
However, it is important to note that the Act magnanimously provides for valid amendment of the Articles of Association of any incorporated company, such amendment may be in form of alteration or addition. And it is to the effect that such alteration and/or any addition will have the same validity as the other provisions contained in the initial or original Articles before the Amendment. See Section 48 (1) (2) of CAMA and the case of Yalaju – Amaye v A.R.E.C (1990) NWLR (Pt 145) 422.” PER A.O.OBASEKI – ADEJUMO,J.C.A
MEMORANDUM OF ASSOCIATION -IMPORTANCE OF THE MEMORANDUM OF ASSOCIATION AFTER INCORPORATION OF A COMPANY
“Let me quickly refer to the decision in National Palm Produce Association Of Nigeria v Udom & Ors (2013) LPELR – 21134 on importance of the Memorandum of Association after incorporation of a company; effect of going outside the scope of the stated objects in the memorandum. The court held:
“…The questions can be determined only by an examination of the contents of Exhibit “A” which is the Memorandum and Articles of Association of the 1st appellant. Section 41(1)-(4) of the Companies and Allied Matters Act Cap C20 Laws of the Federation of Nigeria, 2004 reads as follows: “41 (1) Subject to the provisions of this Act, the memorandum and articles, when registered, shall have the effect of a contract under seal between the company and its members and officers and between the members and officers themselves whereby they agree to observe and perform the provisions of the memorandum and articles, as altered from time to time in so far as they relate to the company, members, or officers as such. (2) … (3) Where the memorandum or articles empower any person to appoint or remove any director or other officer of the company, such power shall be enforceable by that person notwithstanding that he is not a member or officer of the company. (4) In any action by any member or officer to enforce any obligation owed under the memorandum or articles to him and any other member or officer, such member or officer may, if any other member or officer is affected, by the alleged breach of such obligation with his consent, sue in a representative capacity on behalf of himself and all other members or officers who may be affected other than any who are defendants and the provisions of Part XI of this Act shall apply.” The parties in this appeal are bound to observe and perform the provisions of the memorandum and articles of association of the National Palm Produce Association of Nigeria Limited by Guarantee. All the acts of the respondents are ultra-vires the memorandum and articles of the 1st appellant. They are accordingly declared null and void.“(Underlining Mine)per TUR, J.C.A (PP. 23-24, PARAS. B-D)”
HEARSAY EVIDENCE – CONCEPT OF HEARSAY EVIDENCE
“It will be pertinent to affirm succinctly here what is and what amounts to hearsay evidence. Our law reports are replete with the emphasis on settled position of the law on this subject. See the case of Obot v State (2014) LPELR – 23130 (CA) where this court aptly held that;
“hearsay evidence is evidence which does not derive its value solely from the credit given to the witness himself but which rests also, in part, on the veracity and competence of some other person. Thus, where a third party relates a story to another as proof of the contents of a statement, such story is hearsay”. See also Adeta v Nigerian Army (2016) LPELR-40235(CA) and Judicial Service Commission v Omo (1990) 6 NWLR (Pt 157) 407 CA.
It was further held that:
“a testimony will be regarded as hearsay where the person making the statement is not the one who either saw it, heard it, perceived it or gave it as his own personal opinion but rather as what was said to him (by) another person (sic).
per FASANMI, JCA in Salisu v Amusan (2010) LPELR – 9103 (CA). Even, the Apex court validates this position in Olalekan v The State (2001) LPELR – 2561 (SC), when KARIBI-WHYTE, JSC, held that:
“It is well established law that the evidence of a statement made to a witness by a person who is not called as a witness is called “hearsay” if the object of such evidence is to establish the truth of what is contained in the statement…”
The Supreme Court affirmed the law with judicial finality when it held that “neither the court nor the consent of the parties is capable of making such evidence admissible in law.” But we must ask the question here that “do facts deposed to in the Respondent’s set of affidavits fall into the judicial pitfall of hearsay evidence?” Of importance is the provision of section 115 (3) of the Evidence Act, 2011 which provides for instances that may qualify as exception to the general rule highlighted above. The provision is hereunder reproduced for the purpose of clarity.
115(3)When a person deposes to his belief in any matter or fact, and his belief is derived from any other source other than his own personal knowledge, he shall set forth explicitly the fact and circumstances forming the ground of his belief.”
AFFIDAVIT EVIDENCE – NATURE OF AFFIDAVIT EVIDENCE
“It is undisputed that affidavit evidence is a statement in writing made and signed by a person and declared by him on oath to be true. The Supreme Court held in the case of Magnusson v Koiki (1993) 9 NWLR (PT 317)287 at 297, per KUTIGI, JSC, that:
“Affidavit evidence upon which application or motions are largely decided are not the same thing as pleadings in Civil Suits which are written statements (and not evidence) generally of facts relied upon by a party to establish his case… unlike pleadings which will have to be supported by evidence at trial….”
The Apex Court further stated that affidavit evidence is deserved of being given weight, especially where there is no conflict or upon resolution of same by oral evidence. See Nwosu v Imo State Environmental Authority (Supra) and Shitta-Bey v AGF (1998) 10 NWLR (PT. 570) 392. The Supreme Court had warned in the case of Okoye v Centre Point Merchant Bank (Supra) that affidavit evidence is not sacrosanct and that “affidavit evidence cannot change the legal position as the process of affidavit is evidence and not law”. See Kraus Thompson Org v NIPSS (2004) 17 NWLR (PT 901) P44 per Tobi, JSC.” PER A.O.OBASEKI – ADEJUMO,J.C.A
AFFIDAVIT EVIDENCE – TEST FOR DETERMINING FACTS AND CIRCUMSTANCES OF AFFIDAVIT EVIDENCE
“The Supreme Court has provided sufficient guide on the test for knowing facts and circumstances of any affidavit evidence, it was stated the test is to “examine each of the paragraphs deposed to in the affidavit” and such test will be passed if and only if, it is “such that a witness may be entitled to adduce them in his testimony on oath and are legally admissible as evidence to prove a fact in issue or dispute.” See General & Aviation Services Ltd v Thahal (2004) 10 NWLR (PT 880) 50.” PER A.O.OBASEKI – ADEJUMO,J.C.A
AFFIDAVIT EVIDENCE – WHETHER COUNSEL CAN MAKE DEPOSITIONS IN AFFIDAVIT
“It has been said times without number that counsel can depose to non-contested applications or its staff depose to affidavit of facts so that the need in some cases to resolve conflict in affidavit may arise and counsel may have to be put in the witness stand to be cross examined in a matter he is acting counsel and not party. In this respect, any purported non-compliance with Section 115(1), (2) & (4) of the Evidence Act will not stand. See Alhaji Adekunle Agbalajobi & Anor v Governor Of Lagos State (2017) LPELR – 41955 (CA); Dr Maja v Samoris (2002) 7 NWLR (PT 765) 178; Alhaji Kachalla Musa v Attorney-General Of Taraba State & Anor (2014) LPELR – 24183(CA).” PER A.O.OBASEKI – ADEJUMO,J.C.A
AFFIDAVIT EVIDENCE- CIRCUMSTANCES WHERE IT WOULD BE UNSAFE FOR THE COURT TO RELY ON AFFIDAVIT EVIDENCE
“This Court in Bakare v Oduneye (2010) LPELR – 3844 had cause to hold, in the circumstance where it would be unsafe for the court to rely on affidavit evidence, thus;
“Where a deposition in an affidavit is based on information and belief such evidence ought not to be acted upon unless the Court can ascertain the source of the information and belief and unless the facts deposed to be corroborated by someone who speaks from his own personal knowledge. See Maja v. Samouris (2002) 7 N.W.L.R. (pt.765) SC 78; Re J. L. Young Manufacturing Co. Ltd. (1900) 2 CH 758 at 754.”per NWODO, J.C.A (P. 15, PARAS. A-C).”
DIRECTORS – MEANING OF A DIRECTOR
“Succinctly put, a director is a person duly appointed by the company to direct and manage the affairs of the company. He is one in whose direction and instructions the Directors are accustomed to act. See Sections 244, 245 & 650(1) of CAMA and the decisions in Olufosoye v Fakorede (1993) 1 NWLR (Pt 272) 747, SC; Marine Management Association Inc & Anor v National Maritime Authority (2012) LPELR – 20618 (SC), where the court have consistently described a Director as the alter ego of the company.” PER A.O.OBASEKI – ADEJUMO,J.C.A
REMOVAL OF DIRECTORS – PROCEDURE FOR THE REMOVAL OF DIRECTORS
It is crucial to ask the question that; “What laws and procedures are applicable in removal of a director of a public company like the instant respondent?” It is a restatement of the law that a director may generally be removed from office and that the manner of removal may be as specified in the Articles of Association of the concerned company, otherwise recourse by default would be made to the statutory provisions. See Iwuchukwu v Nwizu (1994) 7 NWLR (PT 357) 379. The Supreme Court provided the necessary guide in its decision in Longe v FBN (Supra) wherein it was stated that provisions of Section 262 of CAMA is relevant in the instance. It was further stated that the power to remove a director under the Articles of Association of a company is made subject to provisions of CAMA, non-compliance of which would render nugatory any exercise so conducted. This court pointed out in the case of Cadbury Nigeria Plc v Oni (2012) LPELR – 19821 (CA), the relevance of Section 266 of the Act in this instance as well. For clarity, the provisions of Section 262(1) & (2) and Section 266(1) – (3) of the Act is reproduced hereunder:
262(1). A company may by ordinary resolution remove a director before the expiration of his period of office, notwithstanding anything in its articles or in any agreement between it and him.
(2). A special notice shall be required of any resolution to remove a director under this section, or to appoint some other person instead of a director so removed, at the meeting at which he is removed, and on receipt of notice of an intended resolution to remove a director under this section, the company shall forthwith send a copy of it to the director concerned, and the director (whether or not he is a member of the company) shall be entitled to be heard on the resolution at the meeting.
266(1). Every director shall be entitled to receive notice of the directors’ meeting, unless he is disqualified by any reason under the Act from continuing with the office of director.
(2). There shall be 14 days’ notice in writing to all directors entitled to receive notice unless otherwise provided in the articles.
(3). Failure to give notice in accordance with subsection (2) of this section shall invalidate the meeting.”
– PER A.O.OBASEKI – ADEJUMO,J.C.A
REMOVAL OF DIRECTORS – PROCEDURE FOR THE REMOVAL OF DIRECTORS
“The insistence of the Respondent on the applicability of its board policy has been laid to rest having been held inapplicable earlier on in this judgment; it is then my opinion, that the procedure to remove a director in any public company is as permitted in its Articles premised on the statutes, CAMA especially and BOFIA based on the nature of business of the Respondent, being a bank. See Mr. Stanford Wariboko v Imago Group Of Company Enterprise Nig. (2014) LPELR – 2428 (CA), where this court spelt out the procedure for dismissal or removal of a director, in the following words:
“The manner of removal of directors is as stated in Section 262 of CAMA and provides as follows: SECTION 262 [REMOVAL OF DIRECTORS] 1. A company may by ordinary resolution remove a director before the expiration of his period of office, notwithstanding anything in its articles or in any agreement between it and him. 2. A special notice shall be required of any resolution to remove a director under this Section, or to appoint some other person instead of a director so removed, at the meeting at which he is removed, and on receipt of notice of an intended resolution to remove a director under this Section, the company shall forthwith send a copy of it to the director concerned, and the director (whether or not he is a member of the company) shall be entitled to be heard on the resolution at the meeting. 3. Where notice is given of an intended resolution to remove a director under this Section and the director concerned makes with respect to it representations in writing to the company (not exceeding a reasonable length) and requests their notification to members of the company, the company shall, unless the representations are received by it too late for it to do so – a. in any notice of the resolution given to members of the company, state the fact of the representations having been made; and b. send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company); and if a copy of the representations is not sent as required in this Section because it is received too late or because of the company’s default, the director may (without prejudice to his right to be heard orally) require that the representations shall be read out at the meeting: Provided that copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or any other person who claims to be aggrieved, the Court is satisfied that the rights conferred by this Section are being abused to secure needless publicity for defamatory matter and the Court may order the company’s costs on an application under this Section to be paid in whole or in part by the director, notwithstanding that he is not a party to the application. 4. A vacancy created by the removal of a director under this Section, if not filled at the meeting at which he is removed, may be filled as a casual vacancy. 5. A person appointed director in place of a person removed under this Section shall be treated, for the purpose of determining the time at which he or any other director is to retire, as if he had become director on the day on which the person in whose place he is appointed was last appointed a director. 6. Nothing in this Section shall be taken as depriving a person removed under it of compensation or damages payable to him in respect of the termination of his appointment as a director or of any appointment terminating with that as director, or as derogating from any power to remove a director which may exist apart from this Section. Underlining Mine By the wordings of Section 262 (7) Supra, in the matter of removal of Directors, it is clear that this Statute prevails over any provision in the Articles of Association of the company and is binding on the company. The provision above requires a special notice to remove a Director before the expiration of his term. The various types of notices have been defined in Section 217 of CAMA as follows:… SECTION 217 [LENGTH OF NOTICE FOR CALLING MEETINGS]. By Section 262 (2) of CAMA supra, a notice of the resolution to remove a Director must be given to him and he shall be entitled to be heard on the resolution at the meeting.” per ADEFOPE – OKOJIE,J.C.A (PP. 42-46, PARA. D)”
SPECIFIC PERFORMANCE – CONCEPT OF SPECIFIC PERFORMANCE
“The Supreme Court in the case of Ibekwe v Nwosu (2011) 9 NWLR (PT 1251) 1, explained specific performance to be a kind of remedy that oblige the exact doing of a contract in the specific form and manner in which it was made and in accordance with the precise terms agreed upon by parties. According to the court, it is:
“(t)he rendering, as nearly as practicable, of a promised performance through a judgment or a decree: a court ordered remedy that requires precise fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate….”See Black Law Dictionary, 9th edition, page 1529 and the case of Best Nig. Ltd v Blackwood Hodge Nig Ltd (2011) LPELR -776 (SC). It is an equitable remedy grantable at the discretion of court when it is satisfied that legal or common law remedy would not meet the end of justice. See Achonu v Okuwobi (2017) LPELR – 42102. The court is however admonished to exercise this discretionary power judicially and judiciously. Where it is certain to inflict hardship on the defendant, the court should refrain from granting same, as it is anchored on inadequacy of the remedy of damages at law. See Universal Vulcanizing Nig. Ltd v Ijesha United Trading & Transport Co Ltd (1992) LPELR – 3415 (SC); Ezenwa v Oko (2008) LPELR – 1206 (SC). The argument of the Appellants is that the court raised this issue on its own motion. Without doubt, once the provision of law stipulating a procedure is violated, the resultant action is void, and deemed not taken at all in the eyes of the law. See Longe v FBN (Supra).”
SPECIFIC PERFORMANCE – WHETHER THE COURT WILL ENFORCE SPECIFIC PERFORMANCE OF A CONTRACT OF SERVICE
“In understanding why, the lower court would raise the issue of specific performance suo motu in respect of breach of contract of service, it is important to understand what a contract of service is. A contract of service is a formal legally binding agreement which is between an employer and an individual who then becomes employed by the company, and this court held in Richard Omidiora & Anor v Federal Civil Service Commission & Ors held
“In law, the courts will not enforce specific performance of the mere contract of service or employment under common law. There is a wide difference between unlawful termination of appointment with statutory flavour & wrongful termination of appointment of contract of service or master servant relationship under common law” per OGUNWUMIJU, JCA (P.13, PARAS F – G).”
WRONGFUL DISMISSAL OF A DIRECTOR –WHETHER DAMAGES CAN BE AWARDED FOR WRONGFUL DISMISSAL OF A DIRECTOR
“The question that arises in our minds is; is a company – director relationship one of contract of service? The relationship between a company and a non-executive director is not as simple as that of master and servant such that the normal rules for termination and engagement would apply. It is rather a special relationship/ more like an investor that is statutory in nature. The Appellant is not only a shareholder but a director but represents a block in the formation of the company. The appointment and removal of directors is regulated by the CAMA, and therefore the rules of master and servant under the civil service rules or common law rules cannot be applicable. On whether the companies decree provides for damages in actions for wrongful dismissal of directors or managing directors, the Apex court in Yalaju-Amaye v Associated Registered Engineering Contractors (1990) LPELR – 3511(SC);
“I agree with the submission of counsel to the appellant that the Court of Appeal was wrong to have regarded the claim as one for wrongful dismissal of a servant by a master and for holding that the companies decree did not provide for damages in actions for wrongful dismissal of directors or managing directors. That damages could be awarded is clear from the provisions of section 175(6) of the Companies Decree which states as follows- “Nothing in this section shall be taken as depriving a person removed there under of compensation or damages payable to him in respect of the termination of his appointment as director or of any appointment terminating with that as director, or as derogating from any power to remove a director which may exist apart from this section.” This provision enables the award of monetary damages in actions founded on the removal of director, or managing director. Decided cases abound in support of the proposition that pecuniary damages may be claimed and if proved awarded in actions for wrongful dismissal of director or managing director. See Nelson v. James Nelson & Son Ltd. (1914) 2 KB.770; Southern Foundries (1926) Ltd. v. Shirlaw (1940) AC.701; Shindler v. Northern Raincoat Co. Ltd. (1960) 1 WLR.1038.”per KARIBI-WHYTE, J.S.C (PP. 45-46)”
ISSUES FOR DETERMINATION- DUTY ON THE TRIAL COURT TO PRONOUNCE ON ALL ISSUES BEFORE IT
“The Supreme Court in an admonition directed specifically to courts of first instance, held in Ito v Ekpe (2000) 3 NWLR (PT 650) 678, per BELGORE, JSC thus:
“Trial court must in considering its decision address all the issues before it. The issues are matters averred in the parties’ pleadings on which evidence has been led”.
SPECIFIC PERFORMANCE – WHETHER COURT CAN GRANT SPECIFIC PERFORMANCE
“A court of law can grant specific performance once it is satisfied that what was done ought not to have been done. Having found that the lower court adopted the wrong approach, it behooves on this court to do justice and reverse the wrong.” PER A.O.OBASEKI – ADEJUMO,J.C.A
ORIGINATING SUMMONS – WHETHER SUIT COMMENCED BY ORIGINATING SUMMONS IS DEVOID OF DISPUTE
“In the case of University Of Jos & Anor v Aro (2019) LPELR – 46926 (CA) the court considered whether every matter commenced by originating summons is devoid of dispute and held thus:
“Another issue agitated by the parties was whether the suit was properly commenced by the use of originating summons. Counsel to the Appellants contended that the lower Court was wrong to have entertained the suit on an originating summons in view of the dispute in the facts as deposed in the affidavits and counter affidavits of the parties. It is elementary that facts make cases and that it is disputes in the facts that lead to litigation – Pam Vs Mohammed (2008) 16 NWLR (Pt 1112) 1. Thus, it is not the law that matters commenced by originating summons are devoid of dispute on the facts and the use of the procedure is proper as long as the dispute on the facts do not affect the live issues in the matter – Sani Vs Kogi State House of Assembly (2019) LPELR 46404(SC). Counsel to the Appellants did not show how the dispute on the facts in the instant case affected the live issues for determination in the matter. The agitation of the Appellants on the point was thus misconceived.” per ABIRU,J.C.A (PP. 37-38, PARAS. B-A)
The Apex Court also held in DSS & Anor v Agbakogba (1999) LPELR – 954 (SC) while stating the distinction between an originating summons and a writ of summons, thus:
“…an originating summons is not the same as writ of summons. In the case of the former no pleadings are employed while in the case of the latter there are pleadings in the form of statement of claim, statement of defence, reply etc. see Re: Busfield, Whaley v. Busfield (1886) 32 Ch. D 123 CA. at p.126 and Re Holloway, ex parte Pallister (1894) 2 Q.B. 163, C.A. at pp. 166 and 167. With the vital distinction between an originating summons and a writ of summons it was wrong of the learned trial Judge to bring to bear on this case the principle laid down by the cases of Wallersteiner’s (supra) and Ozowala (supra). The Court of Appeal was, therefore, right in holding that the trial court acted wrongly in following the principle in the cases mentioned to hold that the respondent’s prayer for a declaratory relief had failed.”per UWAIS,J.S.C (P. 27, PARAS. C-E)
Nevertheless, in Atago v Nwuche (2013) 3 NWLR (PT 1341) PG 337, the Supreme Court held as follows:
“The form of commencement of an action does not necessarily make it incompetent. It does not matter whether the action begun by writ of Summons or by Originating Summons. What is most important is the question of justice of the case”
See also; Famfa Oil v AGF (2003) 18 NWLR (PT 852) 453 and PDP v Abukar (NO 2) (2007) 3 NWLR (PT 1022) 515 at 544 P16, PARAS B-D.” PER A.O.OBASEKI – ADEJUMO,J.C.A
POWER OF THE COURT OF APPEAL –IMPORT OF SECTION 15 OF THE COURT OF APPEAL ACT ON THE POWER OF THE COURT OF APPEAL
“Section 15 of the Court of Appeal Act confers general powers on this court to the effect that it has jurisdiction to sit in the same manner as the trial court and make such orders as are just in the circumstance of the appeal before it.” PER A.O.OBASEKI – ADEJUMO,J.C.A
STATUTES REFERRED TO:
Companies and Allied Matters Act