Agip (Nigeria) Ltd. V Agip Petroleum International & 7 Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

O. ADEKEYE, J.S.C

The appeal and cross-appeal, are against the ruling of the Lagos Division of the Court of Appeal delivered on the 22nd of July, 2002. at the court of trial, the Federal High Court Lagos, the minority share holders of the appellant sued the respondents on behalf of the company, in a derivative action and the cassus belli was meant to restrain the sale of 60% (sixty percent) shareholding in the 1st respondent company, Agip Petrol International B.V., to the 2nd respondent Unipetrol Nigeria Plc. to the endorsement on the writ filed by plaintiffs against the defendants jointly and severally, the claim read as follows:-

(1) A declaration that the purported sale of the 1st defendants’ 225,902,969 (Two Hundred and Twenty-Five Million, Nine Hundred and Two Thousand, Nine Hundred and Sixty Nine) shares in the plaintiffs at the instance of the Directors who are in control and the other defendants in this suit in favour of the 2nd defendants is illegally, unlawful and constitute a fraud on the plaintiffs and its members and other persons having interest therein.

(2) An order nullifying and/or invalidating such purported sale, alienation and./or transfer of the said shares from the 1st defendant to the 2nd defendant.

(3) An order restraining the defendants whether by themselves and/or their agents, privies, representatives or any person acting for and or through them or on their behalf from dealing in the 1st defendants’ shares of the plaintiffs.

(4) An order that the plaintiffs bear the cost of the legal representatives in this suit.

The plaintiffs brought two exparte applications on the 11th of February, 2002 and the 18th of February, 2002 respectively.

The application filed on the 18th of February prayed the trial court for the under-mentioned orders:-

(1) An order of the interlocutory injunction restraining the defendant by themselves, agents, privies, representatives whomsoever acting for them and or on their behalf from selling, alienating, disposing, transferring and/or

(2) An order to serve the 1st, 3rd – 15th defendants by substituted means through the company Secretary of the plaintiffs and such services be deemed as proper.

(3) An order of interim injunction restraining the defendants whether by themselves, agents, privies, representatives and whomsoever acting for and on their behalf from selling, alienating, disposing, transferring and/or parting possession with the shares held by the 1st defendant in the plaintiff company pending the hearing and determination of the motion on notice.

In the application filed on the 18th of February, 2002, the plaintiff prayed the court for:-

“An order pursuant to section 303 of the Companies and Allied Matters Act (CAMA) Cap 59 Laws of the Federation 1990 granting leave to the applicant to bring this action in the name and or on behalf of the plaintiffs i.e. Agip Nigeria Plc.”

In view of the foregoing applications; the trial court on the 27th of February, 2002 in its considered ruling held that:-