Ikoya Properties V. MR. Seyi Sowemimo, San & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the Judgment of the Federal High Court, sitting in the Lagos Division delivered on the 22/2/2013 by E. O. Abang J. in suit No: FHC/L/CS/202/2012. The Appellant filed this suit against the Respondents on the 22nd day of February, 2012 via an originating summons dated 21st February, 2012 seeking the reliefs contained at pages 3-10 of the Record of appeal.

The Respondents filed a Preliminary Objection contained at pages 47-50 of the Records against the Appellant’s suit. Parties thereafter exchanged pleadings and in his considered Judgment delivered on the 22nd day of February, 2013, the learned trial Judge of the lower Court declined jurisdiction and dismissed the Appellant’s suit.

It is important to state the facts giving rise to this appeal in brief just to set the records straight. As may be seen from the composition of parties in this appeal. The Appellant is a Limited Liability Company duly registered with its full complement of Directors and other functionaries. On the other hand, the Respondents were made interim administrators of the personal Estate of Fred Egbe, SAN

1

(Late). It is also necessary to mention that the interim administrators were appointed by an order of Court made by OKE J, in suit number LD/141/09. Appellants main grievance was that as a Limited Liability Company it was not made a party at the lower Court while the suit was still pending. When the matter came on appeal in Appeal number CA/L/36/2011, the Respondents rushed back to OKE J, to obtain an ex-parte order granting them control and management of the Company on the ground that the Company Appellant and its properties constitute part of the estate of late Fred Egbe, SAN. The action of the Respondents peeved the Appellant who then rushed to the Federal High Court via Originating summons filed on the 22nd day of February, 2012 seeking for the determination of the following questions:

1. Whether by virtue of Section 63 of the Companies and Allied Matters Act LFN 2004, the Defendants who are neither agents, shareholders nor Directors of the Plaintiff Company can collect rents, take over, control and dissipate the Assets of the Plaintiff Company more particularly the building and appurtenances situate at No. 135 Awolowo Road, Ikoyi Lagos: No. 24 Ozumba

2

Mbadiwe Avenue, Victoria Island Lagos, No. 37 Kofo Abayomi Victoria Island Lagos, No. 3-5 Abebe Village Iganmu, Lagos, No. 7/9 Crowther Crescent, Apapa Lagos contrary to the intendment of the Companies and Allied Matters Act, LFN 2004.

2. Whether the defendants not being shareholders or Directors of the Plaintiff Company can seek to collect rent, take over and control and or dissipate the assets of the plaintiff and control its Bank accounts with First Bank of Nigeria Plc.
3. Whether the attempt towards collection of rent, take over control and dissipation of the assets of the Plaintiff Company is lawful and effectual having regard to the provisions of CAMA.

?Upon the determination of the questions submitted, the Plaintiff/Appellant then sought for the following Orders:

1. An Order setting aside any purported act of collection of rents, Eke over, control and or dissipation of the assets of the Plaintiff Company by the Defendants.
2. An Order of perpetual injunction restraining the Defendants from intermeddling, taking over, controlling and or dissipating any of the Assets of the Plaintiff Company and more particularly those Assets

3

that listed in the schedule hereto and from taking over its Bank accounts.

3. An Order of perpetual injunction restraining the Defendants whether by themselves agents, servants or privies from any attempt to sell, alienate or any manner whatsoever, dissipate the assets and properties of the Plaintiff Company.
4. And for such further or other Orders as the Court may deem fit to make in the circumstance.

The Respondents challenged the competence of the originating summons by way of preliminary objection particularly contending that the suit before the Federal High filed by the Appellants was an abuse of process and therefore urged the lower Court to dismiss it. The Respondents lined up series of issues in the preliminary objection ranging from the fact that the suit filed by the Appellant was an attempt to challenge the Order of Court of coordinate jurisdiction that is to say Order of the High Court of Lagos State, that the reliefs sought by the Plaintiff/Appellant in the originating summons is covered by the decision of the Lagos High Court and referred to the pending appeal in respect of the Order of the Lagos High Court made on the 16th day

4

of February, 2012, the suit according to Respondents is designed to over-reach the decision of the Lagos High Court and the Court of Appeal. Respondents also alleged that the suit filed by the Plaintiff/Appellant at the Federal High Court amounted to forum shopping. The learned trial Judge took the preliminary objection and delivered Judgment on the 22nd day of February, 2013 declining jurisdiction and dismissing the suit. The Appellant became nettled by the decision delivered by the lower Court and therefore headed to this Court and filed Notice of appeal on the 7th day of March, 2013 containing five grounds of appeal, the Notice of appeal is at pages 156-163 of the record of appeal, the grounds of appeal are reproduced as follows: