HAJIYA UMMU AMINU VS DR. MOHAMMED JULDE SULEIMAN
April 4, 2025ABUBAKAR SANI DANLADI & ANOR V USMAN UDI & ORS
April 4, 2025Legalpedia Citation: (2019) Legalpedia (CA) 16991
In the Court of Appeal
HOLDEN AT LAGOS
Thu May 2, 2019
Suit Number: CA/L/996/2008
CORAM
PARTIES
MISS FUNMILAYO ROTOLA AYODELE WILLIAMS APPELLANTS
GLAXOSMITHKLIN CONSUMER NIGERIA PLC RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Appellant filed an action on the grounds that the Defendant/Respondent held its Thirty – Sixth Annual General Meeting without serving a valid Notice of meeting on her. The said meeting was held on a particular date at the Shell Muson Centre, Onikan, Lagos, while the notice of the said Annual General Meeting was posted to the Appellant eight days after the meeting but the Appellant did not receive the said notice until some weeks after the event. All these were due to the attitude of the Respondent in ensuring that those statutorily entitled to notice of its Annual General Meeting are not properly served with a valid notice of meeting. This attitude of the Respondent deprived the Appellant her statutory right to attend and speak at the Respondent’s Thirty – Sixth Annual General Meeting and the Appellant was highly devastated with this serious deprivation and disenfranchisement. She wrote a letter to the Respondent wherein she expressed her displeasure and disappointment over the ugly incident and in response, the Respondent wrote series of letters admitting the late delivery of the said notice of Annual General Meeting, but wrongly attributed the delay to accidental omission. Dissatisfied with the way and manner the Respondent handled the matter at its early stage when amicable settlement was being explored, the Appellant commenced an action by way of originating summons against the Respondent before the Federal High Court Lagos, claiming a declaration that the Plaintiff is a Shareholder in the Defendant’s Company, and is entitled to be notified of and enabled to attend and or participate in the Defendant’s Annual General Meeting, a declaration that the Defendant’s Notice of its Thirty-Sixth Annual General Meeting which was posted on 30th May, 2007 and which the Plaintiff received on 26th June 2007, whereas the said meeting was to be held and indeed held on Tuesday 22nd May, 20007 is improper, same having failed to comply with the relevant provisions of Companies and Allied Matter Act 1990, amongst others. The Respondent filed its counter affidavit and the trial court set down the originating summons and other processes for hearing. Upon the hearing of the originating summons and other processes, the court in its ruling granted part of the reliefs of the Appellant while declining other reliefs. Dissatisfied with the decision of the trial court, the Appellant filed a notice of appeal to the Court of Appeal contending that the trial court was wrong to decline other reliefs of the Appellant.
HELD
Appeal Allowed
ISSUES
Whether the Respondent’s failure to serve the Appellant with a notice of its Thirty – Six Annual General Meeting before the meeting was held on 22/5/2007 was as a result of an accidental omission and whether the Court below was right to have relied on the Newspaper publications in Exhibits E 7 F in arriving at its decision that the failure to serve the Appellant with the notice of the said meeting was as result of an accidental omission and thus does not vitiate the meeting and decisions reached therein? Whether the Appellant is entitled to the cost of the action as claimed against the Respondent and whether the Court was right in refusing to grant relief F on cost of the action as claimed by the Appellant against the Respondent?
RATIONES DECIDENDI
ISSUE FOR DETERMINATION – WHETHER AN ISSUE FOR DETERMINATION NOT DISTILLED FROM ANY VALID GROUND OF APPEAL IS COMPETENT
“In law a decision of the trial Court or any Court for that matter, not appealed against remains binding on the parties to all intents and purpose and therefore, cannot be the subject of any arguments in the briefs of the parties. Furthermore, an issue for determination cannot be distilled from a non existing ground of appeal. In other words, an issue for determination not based on or related to or distilled from any valid ground of appeal exist in vacuo and thus incompetent and not worthy of any consideration by the Court. I have scanned through the six grounds of appeal and I find, and as so aptly and unassailably contended by the learned Senior Advocate for the Respondent, that none of these six grounds of appeal complained about the decision of the Court below to decline to grant relief F claimed by the Appellant against the Respondent. In law therefore, such an issue, as in Appellant’s issue five, is incompetent and thus liable to be struck out and I hereby so strike it out.”
GENERAL AND SPECIAL DAMAGES- DISTINCTION BETWEEN GENERAL AND SPECIAL DAMAGES
“I note that when it comes to damages that a Court can award to a successful litigant on his pleading and evidence, the law as I understand it, and as buttressed by a plethora of decided cases as replete in our law reports, is that there is a distinction and very wide divide between special damages and general damages. These differences includes, though not intended as an exhaustive list of these differences, the following namely: 1: General damages need not be pleaded but special damages must be specifically pleaded; 2: General damages need not be proved but special damages must be specially proved; 3: In General damages the assessment is the duty of the Court but in special damages its assessment is based on what is specifically proved; 4. General damages refer to those damages, which flows naturally from the wrongful act of the Defendant but special damages are those damages which denotes those pecuniary losses which have crystallized in terms of cash and values before the trial. See Ijebu Ode Local Government V. Adedeji Balogun & Co (1991) 1 NWLR (Pt. 166) 36. See also Bello V. AG Oyo State (1986) 5 NWLR (Pt. 45) 828; UBN Ltd. V. Odusote Book Stores Ltd (1995) 9 NWLR (Pt. 421) 558.”
PROOF OF SPECIAL DAMAGES – DUTY OF A PARTY SEEKING SPECIAL DAMAGES
“It is settled law that though there is need to specifically plead and strictly prove special damages, the rule requires anyone asking for special damages to prove strictly that he did suffer such damages as he claimed, it does not means that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. However, what is required to establish entitlement to special damages is credible evidence of such a character as would suggest that the party is indeed entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight as usual in civil cases operates. Thus, special damages in most cases denote those pecuniary losses which have crystallized in terms of cash and values at the trial and must be specifically pleaded and strictly proved. See British Airways V. Atoyebi (Supra) @ p. 289. See also Emirate Airline V. Ngonadi (NO.1) (2014) 9 NWLR (Pt. 1413) 429 @ p. 495; Emirate Airline V. Ngonadi (No.2) (Supra) @ p. 545; Tsokwa Motors Nigeria Ltd V. UBA Plc (2008)2 NWLR (Pt. 1071) 347 @ p. 366; Ijebu Ode Local Government V. Adedeji Balogun & Co (1991) 1 NWLR (Pt. 166) 36; Bello V. AG Oyo State (1986) 5 NWLR (Pt. 45) 828; UBN Ltd. V. Odusote Book Stores Ltd (1995) 9 NWLR (Pt. 421) 558; Oshinjirin V. Elias (1970) All NLR 153; Warner International V. Federal Housing Authority (1993) 6 NWLR (Pt. 298) 148.”
CLAIM FOR COST OF ACTION – NATURE OF A CLAIM FOR COST OF ACTION
“My lords, a claim for cost of the action is in the nature of special damages and therefore, can only be granted upon strict proof by the Appellant since a claim for special damages is never granted as a matter of course. It must be specifically pleaded, itemized with its particulars and strictly proved by credible and cogent evidence at the trial as it denotes pecuniary losses that have crystallized in terms of cash and value at the time of the commencement of the action. See Ohadugha V. Garba (2000) 14 NWLR (Pt. 687) 226 @ p. 244. See also Nigerian Dynamic Ltd. V. Aguocha (2002) FWLR (Pt. 104) 630 @ p. 658.”
CLAIM FOR PAYMENT OF SOLICITOR’S FEE – WHETHER A CLAIM FOR PAYMENT OF SOLICITOR’S FEE AS DAMAGES IS RECOGNIZED IN OUR CIVIL JURISPRUDENCE
“In Ihekwoaba V. ACB Nig Ltd. (1998) 10 NWLR (571) 590, this Court per Akpabio JCA., had on this issue succinctly pronounced inter alia thus:
“The issue of damages as an aspect of Solicitors fees is not one that lends itself to support in this country. There is no system of costs taxation to get realistic figure. Costs are awarded arbitrarily and usually minimally. I do not therefore see why the Appellants will be entitled to general or any damages against the auctioneer or against the mortgagee who engaged time in the present case on the ground of Solicitors costs paid by them.”
In Air France & Anor V. Chinyere Owuala (2018) LPELR – 45841 (CA) 1 @ pp. 85 – 87, I had the opportunity to consider the issue of claims for cost of litigation, either as cost of filing fees or payment of solicitors or as claim by a Solicitor for his fees and I had opined inter alia thus:
“On the claim by the Respondent for the payment of her solicitor’s fees under special damages against the Appellants, in law this head of claim for damages by way of solicitor’s fees and the subsequent award of same by the court below is alien to our civil jurisprudence as such claim is not legally recoverable. See Nwanji V. Coastal Services Nig. Ltd. (2004) 11 NWLR (Pt. 885) @ pp. 568 – 569; Guiness Nig. Plc. V. Nwoke (2000) 15 NWLR (Pt. 689) 135. Having reviewed the totality of the pleadings and evidence of the Respondents on this head of claim, I think a distinction must be drawn between claim by a Solicitor for his fees from his client for services rendered for which the court would in law if proved, through evidence of the services rendered and the bill of cost, which is usually agreed upon as required by the Rules of Professional Conduct and the Legal Practitioners Act, readily grant and a claim for professional fees not by Solicitor but by his client against an adversary in litigation, which the law frowns at as unethical and an affront to public policy for one party to pass on the burden of his Solicitors fees to the other party. If I may ask to whom would that other party then pass on his Solicitor’s fees for payment? I cannot now fathom!”
FINDINGS OF A TRIAL COURT-WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF A TRIAL COURT
“In my finding therefore, the Court below was right in declining to grant the said relief F claimed by the Appellant against the Respondent and in law an appellate Court has no business interfering with the correct findings of a trial Court even if the reason adduced and relied upon by the trial Court to arrive at the correct findings turns out to be wrong. See Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus:
“An appellate court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate court does not interfere. It is only where the misdirection has caused the court to come to a wrong conclusion that the appellate court will interfere….”See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.”
RE-EVALUATION OF EVIDENCE- INSTANCES WHERE THE APPELLATE COURT WOULD RE- EVALUATE EVIDENCE
“My lords, this issue deals with the correctness or otherwise of the findings of facts and decisions reached thereon by the Court below in declining to grant reliefs C, D and E as claimed by the Appellant against the Respondent. It is therefore, incumbent on this Court to review the totality of the evidence, both affidavit and documentary, as led by the parties as in the printed record to see whether or not the Court below did properly evaluated and appraised them and arrived at the correct findings of facts and made the right decisions on the rights and liabilities of the parties as was submitted to it for adjudication. I bear in mind the limitation to the exercise of the power of re – evaluation by this Court, which can be invoked only where or when it is shown that the trial Court had either shirked from its sacred duty and failed to carry out proper evaluation and appraisal of the evidence or had done so erroneously and had arrived at findings not supported by the weight of the evidence led before it. See Tsokwa Motors Nig. Ltd V. UBN Ltd (1996) 9 NWLR (Pt. 471) 129 @ p. 145, where the Supreme Court opined inter alia thus:
“It is trite law that a Court of Appeal will be slow to interfere with the findings of facts by a trial Court and will only do so if such findings are not supported by the weight of evidence are per-versed….Where a trial Court fails to evaluate the evidence on record or erroneously does so or the conclusion reaches is not supported by the evidence on record, then the Court of Appeal, in the interest of justice, must exercise its own of reviewing those facts and drawing the appropriate inferences from the proved facts. Even where the appeal turns on a question of facts, the Appellate Court has to bear in mind that its duty to rehear the case and the Court must reconsider the material before the Judge with such other materials as it may have decided to admit. The Appellate Court must not use its own mind to disregarding the judgment appealed from but carefully weighing and considering it, and not shirking from overruling it, if on full consideration it comes to the conclusion that it is wrong”
GENERAL MEETINGS OF A COMPANY – IMPORT OF SECTION 81,217,219 AND 221 OF THE COMPANIES AND MATTERS ACT ON THE CONDUCT OF GENERAL MEETINGS OF A COMPANY
“To aid proper analysis, I deem it pertinent to reproduce hereunder the relevant provisions of the Companies and Allied Matters Act 1990 as follows:
Section 81 provides as follows:
“Every member shall, notwithstanding any provision in the articles, have a right to attend any general meeting of the Company and to speak and vote on any resolution before the meeting”
Section 217(1) provides as follows:
“The notice required for all types of general meetings from the commencement of this Act shall be 21 days from the date on which the notice was sent out”.
Section 219(1)(a) provides as follows:
“The following persons shall be entitled to receive notice of a general meeting – (a) every member.”
Section 221(1) provides as follows:
“Failure to give notice of any meeting to person entitled to received shall invalidates the meeting unless such failure is an accidental omission on the part of the person or persons giving the notice”.
While Section 221(2) provides thus:
“Failure to give notice to a person entitled to it due to a misrepresentation or misinterpretation of the provisions of this Act, or of the articles shall not amount to an accidental omission for the purpose of the foregoing subsection”.
ACCIDENTAL -MEANING OF ACCIDENTAL OMISSION WITHIN THE CONTEXT OF SECTION 221(1) OF THE COMPANIES AND MATTERS ACT
“Now, what is the meaning of accidental omission within the context of Section 221 (1) of CAMA 1990 as would amount to an exception to the provision which invalidates a meeting held in contravention of the requirement of notice of meeting to a member of the Company entitled to receive such a notice of meeting? While on the one hand the word ‘accidental’ has been defined to mean;
“(i) Not having occurred as a result of anyone’s purposeful act or (ii) resulting from any event that could not have been prevented by human skill or reasonable foresight.”
“On the other hand, the word ‘omission’ has been defined to mean;
“A failure to do something, neglect of duty. The act of leaving something out or state of having been left out or of not having been done” See Black’s Law Dictionary (2004) Edited by Bam G. Garner, Ninth Edition, Thomson West @ pages 17 and 1197 respectively.”
COMPANY LAW, NOTICE OF MEETING – CONSEQUENCES OF A FAILURE TO SERVE A PERSON ENTITLED TO THE NOTICE OF MEETING
“The law, is and has always been, that except where it is shown that there has been an accidental omission, failure to serve notice of meeting by a Company on a person entitled by law to such notice would render the entire meetings and decisions reached therein invalid, null and void. See Baffa V. Odili (2001) 15 NWLR (Pt. 737) 709 @ p. 740, where Chukwuma – Eneh JCA (as he then was but later JSC) had opined inter alia thus:
“The summation of my conclusion in this appeal is that having failed to serve the notice of Meeting for 31/12/96 on the alternate Directors that is the 3rd and 5th Appellants the meeting for 31/12/96 has thereby been rendered invalid”
See also Sun Nig. Plc V. LMBS Ltd (2005) 12 NWLR (Pt. 940) 608 @ p. 631, where it was held inter alia thus:
“It is trite that a member of a Company or Shareholder thereof has right statutorily prescribed by virtue of the Shareholding which rights include attendance and voting at AGM”.
And in Yalayu Amave V. A. R. E. C. (1990) 4 NWLR (Pt 145) 422 @ p. 459 the Supreme Court per Uwais JSC., (as he then was but later CJN) puts it succinctly inter alia thus:
“………the question involved in this action concern his removal as Managing Director and appointment of 2nd Respondent as his successor. The Appellant alleged that he was not invited to the meeting of the Board of Directors that allegedly accepted his resignation from office and appointed the 2nd Respondent to succeed him. As Director he was entitled to be invited to the meeting just like any other Director. He therefore has a cause of action against the 1st -6th Respondent since his right was directly affected. Furthermore, as Shareholder of the 1st Respondent, the Appellant can bring actions are personal to him or wrong which affected the 1st Respondent”.
CERTIFICATION OF DOCUMENTS – COMBINE EFFECT OF SECTIONS 85, 86, 87, 102 AND 103 OF THE EVIDENCE ACT 2011 AND SECTIONS 2(2)(A), 4(1) AND (7) (C) OF THE NATIONAL LIBRARY ACT ON THE CERTIFICATION OF DOCUMENTS
“Simply put, once an original copy of a newspaper is produced in Court and it is relevant and duly pleaded as required by law, in my view, it is admissible in evidence without the need for further certification. However, where what is produced is not the original copy but a photocopy of the newspaper, as in the instant appeal, then of course, for the purposes of its authentication, it would require certification to be admissible in evidence. In my view this position appears to be the only logical legal inference deducible from a proper construction and combined effects of Sections 85, 86, 87, 102 and 103 of the Evidence Act 2011 and Sections 2(2)(a), 4(1) and (7) (c) of the National Library Act, CAP N 56 Laws of the Federation 1990.”
STATUTE THE NATIONAL LIBRARY ACT – IMPORT OF SECTION 4(1) OF THE NATIONAL LIBRARY ACT
“Now, by Section 4(1) of the National Library Act, it is provided as follows:
“the publishers of every book published in Nigeria shall within one month after the publication, deliver at his own expense to the National Library three copies of the book, two of which shall be kept in the National Library for permanent preservation and one of which shall be sent by the Director to the Ibadan University library”
However, by Section 4 (7) (c) of the National Library Act a book, three copies of which, is required to be kept with the National Library is defined as follows:
“a “book” to include “collective works such as encyclopaedias, dictionaries, year book or similar works, newspaper, magazines and similar periodicals.”
It does appear to me that the real essence of the provisions of Section 4(1) of the National Library Act is to give impetus to the real objective for the setting up of the National Library as encapsulated in its primary function is as stated in Section 2(2)(a) of the National Library Act, which provides as follows:
“for the purpose of carrying out the general functions imposed on the Board… it shall be the duty of the Board, so far as its resources permits to assemble, maintain and extend a collection of books, periodicals, pamphlets, newspaper, maps, musical scores, films and recordings and such other matter as the Board considers appropriate for a library of the highest standing”.
CERTIFICATION OF A PUBLIC DOCUMENT – ESSENCE OF DEMANDING FOR A CERTIFIED COPY OF A PUBLIC DOCUMENT
“In the light of the above therefore, it is my view that it is not intended that the National Library shall become the authenticating body for original copies of newspapers and books kept in its custody except in cases of photocopies of original copies of newspapers and books kept with the National Library that would required to be authenticated to confirm it as the true copy of the copies kept with the National Library. Thus, once the copy of a newspaper produced is the original copy of the newspaper, including but not limited to the exact copy purchased from a vendor, it is admissible in evidence without any need for further certification. The above conclusion seems to me to flow directly from the succinct provisions of Section 86 (4) of the Evidence Act 2011, which provides as follows:
“Where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the contents of the rest; but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.”
The above position of the law has received judicial approval in the recent case of Kassim V. State (2017) LPELR – 42586 (SC), where the Supreme Court per Kekere – Ekun, JSC., had opined and held inter alia thus:
“Now, what really is the essence of the demand for a certified true copy of a public document? I think, and in agreement with Adekeye JSC., in Godwill & Trust Investment Limited V. Witt & Bush Limited (2011) LPELR – 1333 (SC), the essence of demanding for a certified copy of a public document is the assurance of the authenticity of the document vis-à-vis the original. And so why go for that assurance in the certified true copy vis-à-vis the original, when the original is available? And so, when the cap is in the market, the head is also in the market; there is no further need to take the cap home from the market in order to test it on the head. I, therefore, agree with the Court below that where the original copy of a document is available, it is admissible without the requirement of certification.”
Also in Uwua Udo V. The State (2016) 2 – 3 SC (Pt. 111) 29, the Supreme Court made it abundantly clear in holding that even a public document tendered in its original form is admissible in evidence by virtue of Sections 85 and 86 of the Evidence Act 2011. It follows therefore, in my view, and I so hold firmly that a newspaper produced in its original form is the primary document produced and thus needs no further certification to be admissible in evidence.”
PERVERSE DECISION – MEANING OF A PERVERSE DECISION
“In law, when it is said that a decision is perverse it means that it is persistent in error, different from what is reasonable or required and against the weight of evidence. Thus, a decision may be perverse where the trial Court took into account extraneous or inadmissible matters not to be taken into account or where the Court shuts its eyes to the obvious or where the conclusion reached does not flow from the established. It is also true that a finding of facts which is merely speculative and not based on any evidence before the Court is a perverse finding, so also is a finding preserve if it is unreasonable and unacceptable because it is wrong and completely outside the evidence before the trial Court. See CSS BookShop Ltd. V. The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310, where the Supreme Court had pointed out succinctly inter alia thus:
“A decision of a Court is perverse when it ignores the facts or evidence adduced and admitted before it and when considered as a whole amount to miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside.”
See also UBN PLC V. Chimieze (2014) LPELR – 22699 (SC), where the Supreme Court had opined inter alia thus:
“In a seemingly endless number of the decisions of this Court, it has been held that a decision of a Court is perverse when it ignores the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case an appellate Court is bound to interfere with such decision and set it aside.”
See also Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ P. 19; Fabiyi V. State (2013) LPELR – 21180 (CA); Atolagbe V. Shourn (1985) NWLR (Pt. 2) 360; Iwuoha & Anor V. NIPOST Ltd & Anor (2003) 8 NWLR (Pt. 822)308; Overseas Construction Company Nig. Ltd. V. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt. 13) 407; Ogunde V. Abdulsalam (2017) LPELR – 41875 (CA) per Georgewill JCA., @ pp. 34 – 35; Michael V. Access Bank Plc (2017) LPELR – 41981 (CA) per Georgewill JCA., @ pp. 38 – 39.
CASES CITED
None
STATUTES REFERRED TO
Companies and Allied Matters Act, 1990|Evidence Act|National Library Act|
