Co-operative & Commerce Bank (Nigeria) Ltd. Vs A.G. Of Anambra State (1992)

LawGlobal-Hub Lead Judgment Report

MICHAEL EKUNDAYO OGUNDARE, J.S.C 

When the two applications brought by the applicant were heard on 21st July, 1992 and at the conclusion of arguments, I ordered as prayed by the applicant and intimated that I would give my reasons later. I now proceed to give my reasons.

By two separate applications filed on 13th July, 1992 and 14th July, 1992 respectively the applicant sought for orders of this Court.

“(a) permitting the appeal to be heard within 6 months on grounds of urgency:

(b) waiving the filing of briefs for the appeal”

as to the first motion, and

“an order of stay of execution of the order of interlocutory injunction made by the Court of Appeal (Enugu Division) on the 17/6/92 pending the determination of the defendants’ appeal against the said ruling”

as to the second motion.

The two applications were taken together, Professor Kasunmu SAN of counsel for the applicant withdrew prayer (a) on the 1st motion paper and conceded in respect of prayer (b) that the Court could abridge the time for filing briefs rather than waiving the filing of briefs altogether. He strenuously argued the prayer for stay of execution.

In his address learned Senior Advocate observed that the applicant was a private company until the 25th September, 1991 when at an extra-ordinary general meeting, it was decided that it became a public limited company. Consequently, new articles were filed and some old ones were amended and shares were offered to the public in order to increase the applicant’s share capital to N50,000,000 (fifty million Naira) as required by law and as directed by the Central Bank of Nigeria. Learned Senior Advocate further observed that the former Anambra and Imo State Governments were shareholders in the applicant Company. Learned counsel referred the Court to pages 2 and 3 of the record of appeal now before us and observed that the injunction sought by the respondents to this application was against privatization of the company. He further observed that this was the order sought from the trial Federal High Court when the respondents brought their application for interim injunction. He submitted that what the applicant was doing was not privatisation but rather offering its shares to the public for the purpose of increasing its share capital to fifty million Naira. He observed that the completion board meeting of the applicant was held on 10/6/92 before the order of interlocutory injunction made by the Court of Appeal in Enugu. He submitted that the cheque of thirty million Naira paid by the respondents to the Central Bank of Nigeria might, under section 573(1) of the Companies and Allied Matters Act, amount to a deposit but not capitalisation. He further submitted that it was the applicant that stood to lose its license if the exercise to raise by public offer, the sum of thirty million Naira being the increase in share capital were not allowed to go on. He referred to Exhibit K001 at pages 151 to 152 of the record of appeal. He urged the Court to grant the stay prayed for.

Mr. Okolo SAN for the respondents submitted that the requirements of the Central Bank of Nigeria imposed on commercial banks for the increase in their capital to a minimum of fifty million Naira was distinct from a company offering share to the public. He referred to section 545 of the Companies and Allied Matters Act in support of his submission. Referring to page 172 of the record of appeal, the learned Senior Advocate observed that the applicant’s counsel agreed to the injunction that was granted by the Court below and could not therefore, now appeal against that injunction without leave of the Court or of this Court. He urged the Court not to disturb the injunction granted by the Court below. He further submitted that the applicant had been in breach of that injunction and referred to Exhibit 4 of the further counter affidavit and to paragraph 9 of the affidavit in support of the 2nd motion. He submitted that the Court would not aid a contemnor and went on to further submit that what the defendant was doing was privatisation.

Earlier on Mr. Okolo SAN had addressed the Court on the preliminary objection contained in his notice filed in Court and served on the applicant. He submitted in respect of his preliminary objection that the appeal as presently constituted was incompetent for failure to obtain leave of this court or the court below under section 213 of the Constitution. He submitted that the appeal being an appeal in an interlocutory matter could only be lodged with leave and as no leave was sought nor obtained, it was incompetent. On the second leg of his preliminary objection, learned counsel observed that the application for stay of execution was brought to this Court without the previous application for stay having been made to the Court of Appeal that is the court below. He referred to Order 2 rule 28(4) Supreme Court Rules and submitted that no special circumstances had been shown why the application should be made to this Court in the first instance. He observed that since the Court of Appeal made its ruling on 17/6/92 the applicant had brought two motions before that Court asking respectively for:

(a) an order to discharge the interlocutory injunction, and

(b) leave to appeal;