Chief Mrs. Bernadeth Nwada Ohanenye & Ors V. Ohanenye And Sons Limited & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Ruling of Federal High Court sitting at Umuahia, Abia State delivered on the 9th of March, 2011. The Respondents herein, who were Plaintiffs at the trial Court, had sued the Appellants claiming the following the reliefs;

1. A Declaration that the 1st-7th Defendants are not shareholders or Directors of the 1st Plaintiff.
2. A Declaration that the incorporation of the 8th Defendant is fraudulent in so far as the Defendants purport the 2nd Plaintiff to be party to it.
3. A Declaration that the letter dated 14th October, 2008 purportedly under the hand of the 2nd Plaintiff is a crude forgery.
4. A Declaration that the purported transfer of the 1st Plaintiffs’ landed properties known as No. 1 Clifford Road, Aba, Plot 122 Ikenegbu Layout Owerri and Plot 165 Fuel Plantation Layout GRA Aba to the 8th Defendant is fraudulent, illegal and null and void.
5. A Order canceling and/or setting aside the following instruments:-

a. Power

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of Attorney dated 2nd December, 2005 and registered as 1/1/773 at the Land Registry at Umuahia.

b. Power of Attorney dated 20th June, 2006 and Registered as 24/24/939 at the lands registry at Owerri.

c. Power of Attorney dated 2nd December, 2005 and registered as No. 26/26/880 at the lands registry at Umuahia.

6. An Order of Court compelling the 1st-8th Defendant to render a comprehensive account of their dealings with the funds, assets and other properties of the 1st Plaintiff since 2004 within 14 days of judgment.
7. An Order of Court compelling the Defendant to pay over to the Plaintiffs the sum of Nine Million, One Hundred and Thirty Eight Thousand, Six Hundred and Fifty Two, Eighty Three Kobo (N9,138,652.83) standing in account number 1071020003851 of the 8th Defendant at Union Bank Plc Factory Road, Aba.
8. An injunction perpetually restraining the Defendants by themselves, their agents, servants or howsoever from further interfering in the affairs of the 1st Plaintiff.

The Appellants as Defendants raised a Preliminary

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Objection challenging the competence of the suit on several grounds namely:

1. The suit purports to be a derivative action brought on behalf of the 1st Plaintiff Company by the 2nd Plaintiff.
2. There is no resolution by the directors of the Company, or an authorization pursuant to Section 63(3) of the Companies and Allied Matters Act, Laws of the Federation of Nigeria, approving the institution of the action.
3. The suit is premature as the authority or consent of the directors of the 1st Plaintiff Company was not first sought and obtained.
4. The suit offends Section 299 of the Companies and Allied Matters Act, Laws of the Federation of Nigeria.

In opposition to the grant of the Preliminary Objection, the Respondents filed a Reply to this Preliminary Objection, and a sole issue of law was set down for hearing, videlicet:

Whether the 1st Plaintiff is?in law, a Company within the contemplation of the Companies and Allied Matters Act?

Written addresses were ordered, exchanged and adopted by learned Counsel for the parties on the 13-12-2010 and on the

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