Celtel Nigeria Ltd V. Econet Wireless Ltd & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

R.C. AGBO, J.C.A. (Delivering the Leading Judgment)

The appellant is the first defendant in Suit No. FCH/C/1S/172/2003. By paragraph 26 of the amended statement of claim, the plaintiff claimed of the defendant as follows:

“1. A declaration that the plaintiff is still a shareholder and member of the 1st defendant company.

2. A declaration that the 1st defendant’s letter of 24th November, 2003 removing the plaintiff’s name as shareholder and member of the 1st defendant company is illegal, null and void.
3. A declaration that all General Meetings (be they Annual or Extra Ordinary) of the 1st defendant held after the 13th November, 2003 and to which the plaintiff was not put on notice are irregular, illegal, null and void.
4. A declaration that all resolutions passed by the company in lieu of the holding of a general meeting pursuant to the provisions of section 234 of the Companies Allied Matters Act 1990 to which the plaintiff is not a party is irregular, illegal, null and void.
5. A declaration notwithstanding the provisions of Section 234 of the Companies and Allied Matters Act a resolution to effect change of name of the 1st defendant cannot be validly effected without complying with the provision s of Section 31(3) and 45(1) of Companies and Allied Matters Act amongst other provisions.
6. An order setting aside all resolutions and decisions taken at any such meetings as referred to in Claims 3 and 4 above.
7. A declaration that pending the determination of this suit and Suit No. FHC/L/962/2003 between the parties now pending before the Federal High Court, Lagos the 1st defendant cannot and should not transfer its assets including the (licence granted to it by the 2nd defendant) for the operation of a Global System for Mobile Networks (GSM) in Nigeria, to any other company and in particular any company incorporated and jointly owned by the 1st defendant and Vodacom and any other company.
8. An order setting aside any decision already taken by the 1st defendant in so far as a decision has been taken by it which is inconsistent to declaration (7) above.
9. An order of injunction against the 2nd defendant from giving any effect to any request made to it by the 1st defendant for the transfer of the licence granted to it by the 2nd defendant until the determination of this suit and Suit No. FHC/L/CS/962/2003.
10. An order of injunction restraining the 1st defendant from doing any of the acts set out in claim 7 above.
11. An order setting aside the resolution circulated by the 1st defendant, pursuant to the provisions of section 234 of Companies and Allied Matters Act, amongst its shareholders to the exclusion of the plaintiff for the change of company’s name.
12. An order setting aside the certificate of change of name issued by the 3rd defendant in the 1st defendant effecting a change of its corporate name from Econet Wireless Nigeria limited to Vee Networks limited.
13. Cost of this action as may be assessed by the court.”

Pleadings were filed and exchanged. The appellant as first defendant in paragraph 23 of the statement of claim pleaded paragraphs 5-26 as its pleadings in its counter claim. In paragraph 27 of the said pleadings, the appellant counterclaimed against the plaintiff as follows:

“27.1. An order rectifying the register of members of the claimant by deletion of the entry in respect of the defendant the same having been entered without, any or, sufficient cause.

27.2. An order of perpetual injunction restraining the defendant, (its agents, officers, directors, members or anyone whosoever claiming through it), from claiming to be, parading, holding out, or describing itself, as a member or shareholder of the claimant.”

The case proceeded to hearing. The plaintiff (1st respondent in this appeal) called three witnesses and closed its case. The appellant opened its defence, called one witness and filed a motion on notice praying the leave of the trial court to amend its statement of defence and counter-claim. The plaintiff/1st respondent opposed the application and filed a counter-affidavit. After exhaustive argument by both sides, the trial court ruled as follows on 14/3/2007:

“In Adekeye vs. Akin Olugbade supra, it was held that a court ought to refuse an application for amendment where (a) it will in anyway unfairly prejudice the opposite party; (b) it would cause unnecessary delay; (c) it is made mala fide or (d) it is quite irrelevant or useless or (e) it would merely raise technical issue. The plaintiff in paragraph 3(a) – (g) of the counter affidavit raises all these issues of bad faith; delay; prejudice etc, and that same is nowhere controverted or denied. And gloaning (sic) from the proposed amendments particularly paragraph 17 of same in my view raises fresh issues that are technical in nature which will undoubtedly cause unnecessary delay. On the strength of the foregoing; I could not but agree with the submission of Mr. Ojo on behalf of the plaintiff that the proposed amendment is in bad faith and is capable of prejudicing the plaintiff in this case. The application is therefore refused.”

The appellant, dissatisfied with this ruling, has filed this appeal. In the notice of appeal, the appellant set out five grounds of appeal to wit:

‘1. The learned trial judge erred in law when he refused the appellant’s application to further amend its statement of defence and counterclaim given that the proposed amendments are vital to a determination of the real issues in controversy between the parties.

2. The learned erred in law and on the facts when he held that the appellant’s proposed amendment of its statement of defence and counter-claim raised fresh issues that were technical in nature, would cause unnecessary delay, was brought male fide and would unfairly prejudice the 1st respondent.
3. The trial judge erred in law and on the facts in the exercise of his discretion.
4. The trial judge erred when he held that the court would only allow amendment upon strong justification.
5. The trial judge erred in refusing appellant’s application to amend its counter-claim.’

The parties exchanged briefs of argument. The appellant in its brief of argument distilled one issue for determination wit – ‘Whether the learned trial judge properly exercised his discretion in refusing the appellant’s application for an amendment of its further amended statement of defence and counter claim.’

The 1st respondent also distilled one issue for determination to wit:

‘Whether, having regard to the nature of the amendment sought by the appellant and the circumstances of the case before the learned trial judge, the decision of the learned trial judge to refuse to grant the appellant leave to amend its further amended statement of defence and counter-claim was based upon a proper exercise of judicial discretion’.

But for the play on words, the issues articulated by the appellant and 1st respondent are asking exactly the same question i.e.” did the trial court in its refusal of the appellant’s application to amend its pleadings act judicially and judiciously?” This is all the more, so as the basic requirement of the law relating to a court’s exercise of discretion is that it acts judicially and judiciously.