Christlieb Plc & Ors V. Ademola Majekodunmi & Ors (2008)

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REGINA OBIAGELI NWODO, J.C.A.

The Respondent Applicants Ademola Majekodunmi and Dr. Ime Ebong by way of Motion on Notice dated 4 September 2007 filed the same date pursuant to Order 4 Rules 3 and 5 of the 2007 Court of Appeal Rules and S15 of the Court of Appeal Act and the inherent power of the Court seeks the following orders:

“1. An ORDER voting and or suspending the interim orders of the Federal High Court per Honourable Justice I. I. Ejiofor in Suit No. FHC/L/CS/1208/05 – CHRISTLIEB PLC & ORS VS. ADEMOLA MAJEKODUNMI & ANOR of 12th December, 2005 and 29th March, 2006 pending the determination of the Appeal dated and filed on 7th March, 2007 by the Appellants/Respondents;

2. An ORDER allowing, the Respondents/Applicants to take possession of the assets, premises, goods and property of CHRISTLIEB PLC situate at No. 39, Creek Road, Apapa, Lagos and the fixtures and buildings thereon which the Appellants had taken possession of since 9th May, 2006 as the Suit No. FHC/L/CS/1208/05 – CHRISTLIEB PLC & ORS VS. ADEMOLA MAJEKUDUNMI & ANOR had been dismissed on the 6th of March, 2007;
3. An ORDER directing the Chief Registrar/Deputy Sheriff of the Federal High Court to assist the Respondents! Applicants in securing the possession of the assets, premises, goods and property of CHRISTLIEB PLC situate at No. 39, Creek Road, Apapa, Lagos and the fixtures and buildings therein which the Appellants had taken possession of since 9th May, 2006 as the Suit No. FHC/L/CS/1208/05 – CHRISTLIEB PLC & ORS VS. ADEMOLA MAJEKODUNMI & ANOR had been dismissed on the 6th of March, 2007;
4. An ORDER directing the Inspector-General of Police and Deputy Inspector General of police Zone II, the Commissioner of Police, Lagos State Command and the Deputies, Assistants and all other officers under their command/control to assist the Respondents/Applicants in securing the possession of the assets, premises, goods and property of CHRISTLIEB PLC situate at No. 39 Creek Road, Apapa, Lagos, which the Applicants/Respondents had taken possession of since 9th May, 2006 as the Suit No. FHC/L/SC/1208/05- CHRISTLIEB PLC & ORS VS. ADEMOLA MAJEKODUNMI & ANOR had been dismissed on the 6th of March, 2007;
5. An ORDER directing that inventory of the assets, goods and property of CHRISTLIEB PLC situate at No. 39, Creek Road, Apapa, Lagos be taken by the Inspector General of Police and Chief Registrar/Deputy Sheriff;
6. An ORDER directing the Appellants/Respondents to deposit the title documents of the property at No. 39, Creek Road, Apapa, Lagos belonging to CHRISTLIEB PLC in Appellants/Respondents’ possession with the Chief Registrar of this Honourable Court pending the determination of this Appeal as the Suit No. FHC/L/CS/1208/05 – CHRISTLIEB PLC & ORS VS. ADEMOLA MAJEKODUNMI & ANOR had been dismissed on the 6lh of March, 2007;
7. An ORDER allowing the Respondents/Applicants to pay the sum of N219, 738,051.64 (two hundred and nineteen million, seven hundred and thirty eight thousand, fifty one naira, sixty four kobo) to the Court in the name of the Deputy Chief Registrar alleged by the Appellants/Respondents to be the sum outstanding and due to the 3rd Appellants/Respondents from CHRISTLIEB PLC in Suit No. FHC/L/SC/1208/05 CHRISTLIEB PLC & ORS VS. ADEMOLA MAJEKODUNMI & ANOR by way of a bank guarantee pending the determination of this appeal;
8. An ORDER directing the Appellants/Respondents to discharge the charge by way of a Deed of legal mortgage dated Will May, 2005 registered at the lands Registry office, Lagos as charge on Title No. MO. 0828 on 22th June, 2005 of CHRISTLIEB PLC parcel of land situate at No. 39 Creek Road, Apapa, Lagos measuring 3.151 acres and more particularly delineated and shown verged “Red” on Survey Plan No. L.E.D.B/SD/40 annexed to the Land Certificate No. MO. 0828 dated 12th August, 1958 pending the determination of this appeal;
9. AND FOR SUCH further or other orders as this Honourable Court may deem fit to make it the circumstances of this application.

The Applicant set out 13 grounds as basis for the reliefs sought. In support also is a 10 paragraph affidavit deposed to by David Udoh exhibiting several documents filed in the Federal High Court as exhibit A, A1, A2, B, B1, C, C1, D1, D2, E, E1, E2, E3,E4, F, G, H, J.

In response to the application the learned counsel to the Respondents filed a Notice of Preliminary Objection on 17 December, 2007 dated 17 December, 2007 wherein he challenged the competence of the 1 & 2 Applicants/Respondents’ Motion on Notice dated 4 September, 2007 and a fortiori the Jurisdiction of this Honourable Court to hear and entertain same. The Notice of Objection is premised on the following 7 grounds:

“1. This Appeal No. CA/L/322/07 is instituted at the instance of the Appellants/Applicants and not the 1st and 2nd Respondents.

2. The 1st and 2nd Respondents do not have a cross-appeal herein challenging the exparte and or interlocutory orders issued by the trial Federal High Court in Suit No. FHC/L/CS/1208/05 or indeed anything done in that suit pursuant to the orders aforesaid.
3. Not having challenged anything done in Suit No. FHC/L/CS/1208/05 or the orders issued therein or the execution of same, either by way of appeal or cross-appeal in this proceedings, it is not competent of the 1st and 2nd Respondents to seek to challenge same merely by instrumentality of the application dated 4th September 2007.
4. It is not open to a party who has not appealed against a decision to seek to set aside the decision or execution of orders made in that decision.
5. That 1st and 2nd Respondents have filed two separate appeals connected with decisions made in the Suit No. FHC/L/SC/1208/05 and which bear direct relationship with the reliefs endorsed on their application.
6. By abandoning these appeals which are still pending and seeking these reliefs vide the instrumentality of this appeal, the 1st and 2nd Respondents are engaged in forum shopping in abuse of the process of this Court.
7. The application dated 4th September 2007 made by the 1st and 2nd Respondents is ultra vires the 1st and 2nd Respondents, without foundation or basis, misconceived, adventurous and utterly unknown to our legal system”.

In support of the Notice is an 11 paragraph affidavit deposed to by Tola Oluwafemi, a legal practitioner; a 6 paragraph further and better affidavit filed on 16 April, 2008, a further and better affidavit filed on 21 May, 2008. Both deposed too by Rasheed Lawal.

The facts leading to the present applications are set out in the affidavit of the applicants as well as the further better affidavits of the Respondents. Briefly, the facts are as follows:

The 1st Appellant/Respondent CHRISTLIEB PLC applied and was given a trade finance facility for 400 million naira by the 3rd Appellant/Respondent – Santrust Securities Limited. The facilities were secured by a Deed of Legal Mortgage dated 10th May, 2005. Some disbursements were made to the 1st Appellant/Respondent. When the 1st Respondent did not respond to the Demand Notices to Pay, made by Santrust Securities Limited demanding the pay back of alleged outstanding sum of N219,738,051.64 (two hundred and nineteen million, seven hundred and thirty eight thousand and fifty one naira, sixty four kobo), the 3rd Appellant/Respondent acting on the Deed of the Legal Mortgage appointed the 2nd Appellant/Respondent as Receiver Manager of Christlieb Plc and proceeded to the Federal High Court. The Appellants/Respondents filed Suit No. FHC/L/CS/1208/05 on 22 May, 2005 by way of an Originating Summons seeking the several reliefs against the Defendants now Respondent Applicant in the lower court jointly and severally. He refer to the Originating Summons dated 22 November, 2005 exhibited as exhibit A.

The Appellants/Respondents also filed Motions for interim and interlocutory injunctions. The Appellant Respondent in his further affidavit averred that on the 12 of December, 2005, he obtained an interim order and on 29 March, 2006 an interlocutory order against the Respondent Applicants to take possession of the assets, goods, premises and property of CHRISTLIEB PLC. On 9 of May, 2006 the 2nd Appellant/Respondent took possession of assets and property of Christlieb Plc. The Respondents/Applicants aggrieved with the interim and interlocutory orders made in the lower court filed two Notices of Appeal against the interim and interlocutory orders. The two Notices of Appeal are in the application as Exhibits D1 and D2. Exhibit D1 is Notice of Appeal dated 20 December, 2005, D2 is the Notice of Appeal dated 29 March, 2006 filed same date, the Originating Summons on 22 January, 2007. The court below on the adjourned date for hearing of the Originating Summons, first heard the Notice of Objection filed by the Respondent Applicants, the Appellant Respondent did not react to the application. The court below on 6 March, 2007 after due consideration dismissed the suit of the Appellant/Respondent FHC/L/CS/1208/05 and adjourned the Applicant’s counter claim for hearing. Respondent Applicant in their counterclaim had claimed amongst other reliefs a declaration that the appointment of the Receiver was null and void and a setting aside of the interlocutory injunction granted on 29 May, 2006.

The Appellant Respondents dissatisfied with the dismissal of the Originating Summons filed a Notice of Appeal exhibited as Exhibit E1 dated 7 March, 2007. As a result of the dismissal of the Originating Summons, the 1st Respondent Applicants realizing that the lower court did not make any consequential order to the effect of vacating the injunctive orders went back to the Federal High Court to make an order to allow the Applicant repossess Christlieb Plc assets and property in view of the dismissal order.

The Appellant Respondent filed a Motion dated 8 March, 2007 in the court below praying for Stay of Execution, restraining order and Stay of Proceedings against the order of 6 March, 2007. The trial court in its considered ruling refused to stay execution of any decision of that court but granted stay of proceedings pending appeal. The trial court also refused to grant leave to the Respondents/Applicants to issue Writ of Execution and allow Applicants to take possession of CHRISTLIEB PLC and ruled he was funtus officio as stay of proceedings had been granted in the same Suit FHC/L/CS/1208/05 and that they were appeals pending. The Respondent Applicants then filed the present application in this court.

The Learned Senior Advocate R. Tarfa arguing the application orally on the 28 May, 2008 formulated six issues for determination. Chief A. Aribisala (SAN) in response to the application had filed a Notice of Preliminary Objection; he addressed the court on the competence of the application before the court. He did not formulate issues for determination.

I will first consider the Notice of Preliminary Objection before the determination of the Motion on Notice.