Chief R. A. Okoya & Ors Vs S. Antilli & Ors (1990)

LawGlobal-Hub Lead Judgment Report

AGBAJE J.S.C.

 The background material to this appeal is as follows. The plaintiffs, Chief R.A. Okoya, Mrs. K. Okoya and Albion Construction Ltd., sued the defendants, S. Santilli, A. Davanzo and Prince D.A. Ademiluyi in a Federal High Court Lagos Division, claiming against them the following reliefs:-

“(1) A declaration that the document, copies of which were lodged with the Registrar of Companies and the Federal Inland Revenue Department, to which the 1st and 2nd Plaintiffs were subscribers, is the only true memorandum and articles of association of the Albion Construction Co. Ltd.

(2) An injunction restraining the 1st, 2nd and 3rd defendants and/or any person acting with or on their direction or authority from conducting the affairs of the Albion Construction Co. Ltd. and in particular from operating the account of the said company in any Bank whatsoever on the basis of any memorandum and articles of association other than that mentioned in paragraph (3) hereof.

(3) A declaration that the 1st and 2nd Plaintiffs are the only lawful directors of the Albion Construction Co. Ltd. (4) A declaration that the purported appointment of the 1st and 2nd defendants as directors of the Albion Construction Co. Ltd. whether pursuant to the memorandum and articles of association of the said company or at the meeting of the Board of Directors of the Company held on 7.2.80 is illegal and null and void and of no effect.

(5) A declaration that the claim of the 1st and 2nd defendant to be owners of 40,000 shares each in the Albion Construction Co. Ltd. whether as subscribers to the memorandum and articles of association or pursuant to resolutions allegedly passed at a meeting of the Company’s Board of Directors held on 5/5/81 is unlawful and not maintainable in law or in fact. (6) A declaration that all shares held by the 3rd defendant in the Albion Construction Co. Ltd. were held by him in trust for the 1st Plaintiff and an order directing the said defendant to execute a transfer of the said shares to the 1st Plaintiff.

(7) An injunction restraining the 1st and 2nd defendants from holding themselves out as director of the 1st plaintiff company or from giving directions concerning the management and control of the said company unless and until duly appointed as directors of the said company.” After hearing the parties and their witnesses the learned trial Judge, Odunowo, J., gave his judgment in the case on 15th December, 1988 where he held as follows:-

“I am satisfied that the following decision must be made: (1) The document described as Memorandum and Articles of Association of Albion Construction Company Limited dated 16/9/76 and admitted in evidence in this action as Exhibit ‘A’ and to which the first and second plaintiffs were subscribers is the only true Memorandum and Articles of Association of the third plaintiff company.

(2) The nominal share capital of the third plaintiff company is N200,000.00 divided into 200,000 shares of N 1.00 each, and not as alleged by the defendants. (3) All the parties to this action are shareholders of the third plaintiff company: namely (1) Chief R.A. Okoya – 50% or 100,000 shares; (2) Mrs.K. Okoya – l % or 2,000 shares; (3) Mr. S. Santilli – 20% or 40,000 shares; (4) Mr. A. Davanzo – 20% or 40,000 shares; and (5) Prince D.A. Ademiluyi – 9% or 18,000 shares.

(4)The third defendant is hereby directed to execute an instrument of transfer in respect of 51% or 102,000 shares, which he holds on trust, of the first plaintiff. (5)The first, second and third defendants and/or any other person or persons acting with or on their direction or authority are hereby restrained from conducting the affairs of the third plaintiff company and in particular from operating the account of the said company in any bank whatsoever on the basis of any Memorandum and Articles of Association other than that mentioned in paragraph (1) above.”

By a notice of appeal dated 22/12/88, the defendants appealed against the whole of the decision of Odunowo, J., to the Court of Appeal, Lagos Division. For reasons hereinafter appearing in this judgment I will reproduce below the grounds of appeal in the notice of appeal without their particulars. They are as follows:- “(1) That the learned trial Judge erred in law and on the evaluation of the facts before the Court in awarding 51% percent of the adjudged 200,000 Authorised Share Capital to the 1st and 2nd Plaintiffs and in directing the 3rd Defendant to execute an instrument of transfer of the said 51 % shares to the 1st Plaintiff which the learned trial Judge adjudged the 3rd Defendant held in trust for the 1st Plaintiff.

(2) The learned trial Judge erred in law by adjudging that the 1st and 2nd Plaintiffs are Members of the 3rd Plaintiff Company. (3) The learned trial Judge erred in law in holding that the 3rd Defendant’s shareholding in the 3rd Plaintiff is 9% instead of the 21% which the Defendants had canvassed in their alternative position.

(4) The learned trial Judge erred in his evaluation of the facts and the application of law to those facts in holding and accepting the contention of the 1st and 2nd Plaintiffs that ‘the paid up share capital of the 3rd Plaintiff as at 31/5/81 stood at 200,000.” (5) That the learned trial Judge erred in law and in the evaluation of the facts placed before the court by failing to make a finding on the un-contradicted evidence that the Worker Trust held 10% of the authorised share capital of the 3rd Plaintiff. (6) The learned trial Judge erred in his evaluation of the facts before the court and in his application of law to those facts in holding that the presumption of regularity of the disputed Minutes in the minutes Book, Exhibit HH had not been displaced. (7) The learned trial Judge erred in accepting the authenticity of the Balance Sheets of the 3rd Plaintiff Company by which the paid up share Capital were supposedly made by the 1st Plaintiff, as at 31/5/81. (8) That the judgment is against the weight of evidence.”

There is a cross-appeal by the plaintiffs. As far as the present appeal is concerned, I need not say anything more about the plaintiffs’ appeal. Pursuant to an application by the defendants, for leave to appeal against the Judgment of Odunowo, J., of 15/12/88 and for a stay of Execution of the judgment, parties by their counsel appeared before Odunowo, J., on 22/12/88. For reasons hereinafter appearing in this judgment, it is necessary to set down some of the record of proceedings of that day, which is: “Chief F.R.A. Williams: When we came here this morning, we felt that there were two major defects in this application.