First African Trust Bank Ltd. & Anor V. Basil O. Ezegbu & Ors. (1993)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C.

This is an appeal from an interlocutory decision of the Court of Appeal, which arose out of an interlocutory decision of the Federal High Court presided over by Jinadu, J.

Originally there were two separate actions filed in the Federal High Court, Lagos – namely Suit No. FHC/L/M67/91 and FHC/L/M69/91. Both suits were consolidated, and throughout the trial the plaintiffs in Suit No. FHC/L/M67/91 who were also the defendants in Suit No. FHC/L/M69/91, were referred to as “the plaintiffs”. Similarly the defendants in Suit No. FHC/L/M68/91 who were also the plaintiffs in Suit No. FHCIL/M69/91 were referred to as “the defendants”. I will, in this judgment, simply refer to the appellants as “the plaintiffs” and the respondent as “the defendants”.

The main issue is controversy between the two parties was as to the true ownership of the 1st plaintiff bank. While the plaintiffs maintained that the true members of the 1st plaintiff bank were the shareholders whose names appeared in the first register, Exh. B, the defendant’s case was that the register Exh. B was not the true register of the true owners of the bank as it was prepared mainly for the artificial purpose of complying with the Central Bank time schedule for obtaining a banking license. It was their case that the true owners of the bank are the persons who had actually been allotted shares by the Board of Directors and who had actually paid their subscriptions in full, and whose names appeared in the second register: Exh. L.

At the trial, both parties called a number of witnesses and tendered a number of documentary exhibits in support of their respective claims. At the conclusion of the case, after due consideration of all the submissions made by each party in support of their respective claims, the learned trial judge, on the 1st day of November, 1991 gave judgment in favour of the plaintiffs. In that judgment he made a number of findings which, in fact are not relevant to the appeal before this court. He also made a number of consequential orders. The order which is relevant to this appeal, reads as follows:

“I therefore order in accordance with the order sought in the defendants originating summons that extraordinary general meeting of the members of the 1st plaintiff be called at which only the members mentioned in claim 3 of the plaintiff’s amendment statement of claim who are the only members of the 1st plaintiff are attend including the five defendants adjudged to be members of the 1st plaintiff by this court and the meeting should be convened by the Company Secretary Miss Nkemenna and notices thereof must be served on all the 20 shareholders whose names appear in Exhibit B. The meeting should be held within 14 days from today with 3 days notices issued to all the 20 members including the five defendants.”

Being dissatisfied with the judgment, the defendants appealed against that decision and simultaneously applied to the Federal High Court praying the court to suspend its order directing the holding of the extra-ordinary General Meeting until the determination of the appeal. That motion reads as follows:

“TAKE NOTICE that this Honourable Court will be moved on Monday the 11th day of November, 1991 at the hour of 9 o’clock in the forenoon or so soon thereafter as Counsel can be heard on behalf of the defendants/appellants in Suit No. FHC/L/M67/91 and plaintiff/appellants in Suit No. FHC/L/M69/91 for an Order that:

(i) The order made in the judgment of this Honourable Court for the summoning of a meeting of the members of the 1st plaintiff bank on the basis of the register of members Exh. B consisting of 20 names be suspended until the determination of the appeal lodged herein.

(ii) The affairs of the bank should continue to be run by the existing signatories of the bank under the supervision of the Director of Banking Supervision of the Central Bank of Nigeria.

(iii) Restraining the 2nd plaintiff in FHCIL/M67/91 and the defendants in FHC/L/M69/91 their servants and/or agents from interfering in the day-to-day operations of the bank by its officers and employees or from retaining the keys of the bank (which they seized on the 1st of November, 1991) until the determination of the appeal lodged herein.

(iv) Directing the 2nd plaintiff to cause the premises of the 1st plaintiff Bank to be re-opened for business and to hand over to the Officers of the Bank the keys of the doors, offices and rooms of the Bank to the Officers from whom they were seized on Friday the 1st of November, 1991 until the determination of the appeal filed herewith.

And for such further or other order or orders as this Honourable Court may deem fit to make in the circumstances.

Dated this 4th day of November, 1991.”