African Petroleum Plc V. Albert Adeniyi & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the decision of the Federal High Court, Abuja Division in suit No. FHC/ABJ/PET/5/2002 delivered on the 15th of January, 2003.

The Appellant was the 1st Respondent in the Court below. The 1st and 2nd Respondents were the petitioners and the 3rd, 4th and 5th Respondents were all Respondents.

The petitioners in the Federal High Court commenced this matter by filing a petition dated 17th September, 2002 seeking the following reliefs.

(i) A DECLARATION that the appropriate authority vested with power by Section 314 of the Companies and allied Matters Act to cause an investigation to be conducted into the affairs of the 1st respondent which is a Company having Share Capital is the Corporate Affairs Commission. (ii) A DECLARATION that it is not lawful for the President of the Federal Republic of Nigeria to set up the 2nd Respondent presided over by the 3rd Respondent to investigate the affairs of the 1st Respondent which is a Company having a Share Capital.

(iii) A DECLARATION that in as far as the Commission of Inquiry to investigate the management of African Petroleum Plc (2nd respondent) presided over by the 3rd Respondent is not a body set up or appointed by the Corporate Affairs Commission, any investigation conducted or recommendation made or decision taken by the 2nd Respondent in respect of or in connection with or relation to the affairs of the 1st Respondent is illegal null and void.

(iv) A DECLARATION that it is not lawful for the Commission of inquiry to investigate the management of African Petroleum Plc (2nd Respondent) set up by the President of the Federal Republic of Nigerian and presided over by the 3rd Respondent to compel the 1st Respondent or any of its officers to submit or reveal to any information or record relating to or connected with the operation and management of the 1st Respondent.

(v) AN INJUNCTION restraining the 1st Respondent whether by itself its servants agents and or representatives from submitting or revealing or continuing to submit or reveal to the 2nd and 3rd Respondents or any of the members of the 2nd Respondent any information or record relating to or connected with the affairs or the 1st respondent.

(vi) AN INJUCTION restraining the 2nd and 3rd Respondents whether by themselves their members, agents and or representatives from carrying out any investigation into or otherwise interfering in any manner whatsoever with the affairs of the 1st Respondent.”

The 1st Respondent now the Appellant filed a Motion on Notice on 30/09/2002 without affidavit. Seeking the following reliefs:

“(a) Dismissing/Striking-out the Petition herein or striking out the name of the 1st Respondent/Applicant therefrom on the ground that it does not disclose a cause of action against the 1st Respondent/Applicant.

ALTERNATIVELY

(b) Striking out the Petition (in so far as it is meant to be a derivative action) on the ground that the petition is premature as no leave of this Honorable Court was sought and obtained before filing same as enjoined by Section 303 of the Companies and Allied Matters Act.

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