Chief Onwuka Kalu Vs Chief Victor Odili & Ors (1992)

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NNAEMEKA-AGU, J.S.C. 

In this interlocutory appeal, the parties have held drastically different views, including the configuration of the parties to this appeal. So, parties on both sides have stated the parties widely differently. But because of an issue in this appeal, I should retain the arrangement of the parties in the ruling before the Court of Appeal which led to this appeal.

The antecedents of this appeal are as interesting as the appeal itself. From an affidavit dated 20th January, 1992, Chief Onwuka Kalu (herein designated the “person interested”), Chief Victor I. Odili, Chief N.O. Nwojo, Chief J.I. Orji and Mr. K.A. Maduka have been shareholders and directors of the respondent/Bank. The person interested has been the Chairman of the Bank since 1988 and from the various proceedings before the Court he has not been removed. There was a dispute between the different shareholders as to the quantum of shareholding of individual members. This dispute went to the Lagos High Court as Suit No.LD/17I5/90 in which all the parties to this suit were parties. This was settled by the parties on 28th December, 1990 when the terms of settlement were made a consent judgment. Another suit in the Federal High Court (Suit No. FHC/L/23/90) on the election/appointment of the members of the Board of Directors was struck out on 13/5/91. Still pending between the parties at the date of the motion which led to the order, the subject of this appeal, were Suit Nos. LD/152/91 and LD/1063/91.

Then on 18th of July, 1991, by an originating summons No. FHC/L/M104/91 served only on the Bank, the applicant, Chief Odjli alone sued the Bank in the following terms:

“(1) that an Extraordinary General Meeting of the Company may be convened by the Court for the purpose of considering and if thought fit passing the Resolution set forth in the Schedule hereto;

(2) that the Court may give directions as to the manner in which the said Meeting is to be called, held and conducted and all such ancillary and consequential directions as it may think expedient;

(3) that the costs of this application be provided for;

(4) that the applicant herein be given liberty to make ancillary application(s) hereafter to this Honourable Court as may be necessary conducive or expedient to the foregoing prayer(s).

SCHEDULE

1. That the audited accounts for the period ending June 30, 1991 be and are hereby received and adopted.
2. That the capital of the company be increased to forty million naira by the creation of twenty-five million shares of N1 each.
3. That the 3rd Annual General Meeting of the Company shall be held on Thursday the 31st day of October 1991.

DATED the 10th day of SEPTEMBER 1991.

X X X X”

The application was supported by an affidavit of 14 paragraphs. Paragraph 6 of the affidavit in support runs thus;

“6. To the best of my knowledge information and belief for all practical purposes the Board is unable to act in respect of three vital and pressing matters, to wit-

(a) The consideration and submission of the audited accounts of the Bank for the period ending June 30 1991 to the General Meeting for its approval,