Debayo & Sons Limited & Ors V. Tunji Gomez & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE ADAMU JAURO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Federal High Court Lagos, per Ajakaiye J, delivered on 16th December 2008, which disallowed a notice of discontinuance filed by five out of the twelve plaintiffs in suit No. FHC/L/CS/304/2002 pending before the court.

The facts giving rise to this appeal can be briefly summarized thus: The plaintiffs/respondents instituted the action in the court below against the 1st defendant/appellant company, three of its directors and the company secretary.

The reliefs sought by the plaintiffs were injunctive and declaratory orders in relation to the management of the 1st defendant company and compliance with the provisions of the Companies and Allied Matters Act 1990. The case was assigned to Kafarati, J and on his transfer; it was reassigned to commence de novo before Ajakaiyo, J. Before the commencement of the trial de novo, five out of the twelve plaintiffs filed a notice of discontinuance through their counsel, A.O. Olaosebikan Esq.

On the 17th November 2008 when trial was to commence, learned counsel for the defendants drew the attention of the court to the notice of discontinuance filed on 12th November, 2008 by five out of the twelve plaintiffs. Learned counsel for the other plaintiffs opposed the notice of discontinuance filed by the five plaintiff’s. In the ruling complained of, the learned trial judge discountenanced and disallowed the notice of discontinuance and held that the five plaintiffs remain co-plaintiffs until determination of the case.

Aggrieved and dissatisfied with the said ruling, the defendants appealed against it vide a notice of appeal anchored on four grounds, dated 29th December, 2008 and filed on 30th December, 2008. The four grounds of appeal shorn of their particulars are hereby reproduced thus:

1. The learned trial judge erred in law by his misunderstanding and misapplication of the legal principles established by the Supreme Court in Green v. Green, and had applied the principles of non-joinder and misjoinder of parties to the notice of discontinuance filed by the Appellants prior to the commencement of the trial of the action de novo.
2. The learned trial judge erred in law by his failure to consider that there are 22 shareholders of the 1st Defendant Company as against 15 shareholders that are presently before the court.
3. The ruling is contrary to establish legal principles and judicial precedents.
4. The learned trial Judge failed to consider order 12 r 16 of the Federal High Court rules which enable parties to have their names struck out in a summary manner at the trial of the action.”

In compliance with the rules of court, parties filed and exchanged their respective briefs of argument. Mrs. A.O. Marinho leading Mr. Ikechukwu Ezimora, adopted and relied on the appellant’s brief of argument filed on the 1st April, 2009. Learned counsel stated that the 2nd to 7th respondents did not file any brief of argument. Learned counsel submitted that the appellants formulated three issues for determination from the four grounds of appeal and urged the court to allow the appeal. Mr. Tunji Gomez who appeared in person as the 1st respondent, adopted and relied on the 1st respondents brief of argument filed on 6th May, 2009 in urging the court to dismiss the appeal.

Learned counsel stated that the notice of discontinuance was filed more than 14 days after settlement of pleadings without extension of time which is contrary to law. Learned counsel further argued that the appellants are not even the five plaintiffs that filed the notice of discontinuance, hence urged the court to dismiss the appeal. Mr. Debayo Doherty for the 2nd to 7th respondents conceded that they did not file any brief of argument. The appellant’s in their brief of argument distilled three issues for determination from the four grounds of appeal. The 1st respondent beside proffering arguments in respect of the three issues nominated by him, proceeded to advance arguments in response to the three issues raised by the appellants.

Having studied the record of proceedings vis a vis the briefs of argument, the following observations were made:-

(i) The defendants now appellants were not the parties that filed the notice of discontinuance, the refusal of which is now the subject of appeal and

(ii) The second relief as contained in the notice of appeal prayed for the striking out of the names of the appellants from the suit.

It is noteworthy to restate that the appellants were sued as defendants in the court below.

Based on the foregoing observations parties were invited to address the court on the following two issues, namely:-

(a) What is the locus of the appellants in filing this appeal when they were not the applicants aggrieved by the ruling of the lower court refusing to strike out the names of the 7th, 9th, 10th, 11th and 12th plaintiffs, and