First African Trust Bank Ltd. & Anor V. Basil O. Ezegbu & Ors. (1993)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C.

This is an appeal from an interlocutory decision of the Court of Appeal, which arose out of an interlocutory decision of the Federal High Court presided over by Jinadu, J.

Originally there were two separate actions filed in the Federal High Court, Lagos – namely Suit No. FHC/L/M67/91 and FHC/L/M69/91. Both suits were consolidated, and throughout the trial the plaintiffs in Suit No. FHC/L/M67/91 who were also the defendants in Suit No. FHC/L/M69/91, were referred to as “the plaintiffs”. Similarly the defendants in Suit No. FHC/L/M68/91 who were also the plaintiffs in Suit No. FHCIL/M69/91 were referred to as “the defendants”. I will, in this judgment, simply refer to the appellants as “the plaintiffs” and the respondent as “the defendants”.

The main issue is controversy between the two parties was as to the true ownership of the 1st plaintiff bank. While the plaintiffs maintained that the true members of the 1st plaintiff bank were the shareholders whose names appeared in the first register, Exh. B, the defendant’s case was that the register Exh. B was not the true register of the true owners of the bank as it was prepared mainly for the artificial purpose of complying with the Central Bank time schedule for obtaining a banking license. It was their case that the true owners of the bank are the persons who had actually been allotted shares by the Board of Directors and who had actually paid their subscriptions in full, and whose names appeared in the second register: Exh. L.

At the trial, both parties called a number of witnesses and tendered a number of documentary exhibits in support of their respective claims. At the conclusion of the case, after due consideration of all the submissions made by each party in support of their respective claims, the learned trial judge, on the 1st day of November, 1991 gave judgment in favour of the plaintiffs. In that judgment he made a number of findings which, in fact are not relevant to the appeal before this court. He also made a number of consequential orders. The order which is relevant to this appeal, reads as follows:

“I therefore order in accordance with the order sought in the defendants originating summons that extraordinary general meeting of the members of the 1st plaintiff be called at which only the members mentioned in claim 3 of the plaintiff’s amendment statement of claim who are the only members of the 1st plaintiff are attend including the five defendants adjudged to be members of the 1st plaintiff by this court and the meeting should be convened by the Company Secretary Miss Nkemenna and notices thereof must be served on all the 20 shareholders whose names appear in Exhibit B. The meeting should be held within 14 days from today with 3 days notices issued to all the 20 members including the five defendants.”

Being dissatisfied with the judgment, the defendants appealed against that decision and simultaneously applied to the Federal High Court praying the court to suspend its order directing the holding of the extra-ordinary General Meeting until the determination of the appeal. That motion reads as follows:

“TAKE NOTICE that this Honourable Court will be moved on Monday the 11th day of November, 1991 at the hour of 9 o’clock in the forenoon or so soon thereafter as Counsel can be heard on behalf of the defendants/appellants in Suit No. FHC/L/M67/91 and plaintiff/appellants in Suit No. FHC/L/M69/91 for an Order that:

(i) The order made in the judgment of this Honourable Court for the summoning of a meeting of the members of the 1st plaintiff bank on the basis of the register of members Exh. B consisting of 20 names be suspended until the determination of the appeal lodged herein.

(ii) The affairs of the bank should continue to be run by the existing signatories of the bank under the supervision of the Director of Banking Supervision of the Central Bank of Nigeria.

(iii) Restraining the 2nd plaintiff in FHCIL/M67/91 and the defendants in FHC/L/M69/91 their servants and/or agents from interfering in the day-to-day operations of the bank by its officers and employees or from retaining the keys of the bank (which they seized on the 1st of November, 1991) until the determination of the appeal lodged herein.

(iv) Directing the 2nd plaintiff to cause the premises of the 1st plaintiff Bank to be re-opened for business and to hand over to the Officers of the Bank the keys of the doors, offices and rooms of the Bank to the Officers from whom they were seized on Friday the 1st of November, 1991 until the determination of the appeal filed herewith.

And for such further or other order or orders as this Honourable Court may deem fit to make in the circumstances.

Dated this 4th day of November, 1991.”

The motion was fixed for hearing before Jinadu, J. on the 11th November, 1991. But before the application could be heard on the day fixed, the plaintiff had, on 9/5/91 held the meeting and had taken far reaching decisions not withstanding the fact that they had been served with copies of the pending application for the stay of the Extraordinary General Meeting. When the defendants’ application to suspend the Extraordinary General Meeting. Meeting came up for hearing on 11th November, 1991, the defendants’ counsel informed the court that he could not properly proceed with his application praying the court to suspend its order relating to the holding of the Extraordinary General Meeting because his application had been overtaken by events as the said meeting has already been held on the 9th November, 1991. He therefore made an oral application to the court to exercise its disciplinary jurisdiction to set aside all the decisions taken at the General Meeting held on 9th November, 1991. After hearing arguments of both counsel on the matter he learned trial Judge adjourned his ruling to 18th November, 1991 which he delivered on that day refusing the defendants’ application. The defendants there after filed an interlocutory appeal against the ruling of the Federal High Court and simultaneously filed an application in the Court of Appeal dated 21st November, 1991. That motion reads as follows:

“MOTION ON NOTICE

TAKE NOTICE that this Honourable Court will be moved on the day of November, 1991 at the hour of 9 o’clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the defendants/appellants for an order pending the determination of the appeal filed herein:

(i) Setting aside the proceedings and decision of the General Meeting of the 1st plaintiff held on Saturday the 9th of November, 1991.

(ii) Nullifying any decisions taken or the implementation or any implementation thereof and in particular reinstating all employees of the bank whose appointments were terminated after the date of the said meeting.

(iii) Generally restoring the status quo ante, at the 1st plaintiff/ respondent bank, as at the date of the judgment delivered on the 1st of November, 1991.

And for such further or other order or orders as this Honourable court may deem fit to make in the circumstances.

Dated this 21st day of November, 1991.”

The Court of Appeal heard the application and in the lead ruling of Niki Tobi, J.C.A. (with which Sulu-Gambari and Kalgo, J.J.C.A. concurred), the learned Justice of Appeal granting the application concluded as follows:

“After a careful consideration of the application, I am of the view that the learned trial Judge was rather hesitant in the whole matter. In order to do justice in this matter, it is a very important part of this court’s armoury to grant the application and it is hereby granted. For the avoidance of doubt, the following orders are made pending the determination of the appeal, if the appeal ever comes before us:

(1) An order setting aside the proceedings and decision of the General Meeting of the 1st plaintiff held on Saturday the 9th of November, 1991.

(2) An order nullifying any decisions taken or the implementation or any implementation thereof and in particular reinstating all employees of the bank whose appointments were terminated as enumerated in paragraph 26 of the affidavit in support sworn by Emmanuel Ejike.

(3) An order generally restoring the status quo ante before the date of the delivery of the judgment on 1st November, 1991;

I make no order as to costs.”

This appeal, by the plaintiffs, is from that ruling.

Two Notices of Appeal were filed. The first Notice of Appeal consisting of 7 grounds of appeal deal with of law alone, and they are as follows:

“Grounds of Appeal

(i) The Court of Appeal erred in law in entertaining the application of the defendants/appellants when it had no jurisdiction to do so, either under the Constitution or the Rules of Court or the Federal

Court of Appeal Act.

Particulars of Error

(a) The defendants elected to appeal against the ruling of the Federal High Court delivered on 18/11/91, and thereby invoked the appellate jurisdiction conferred on the Court of Appeal by Section 220 of the 1979 Constitution.

(b) Notwithstanding the aforementioned appeal, the defendants also filed the motion dated 1/11/91 claiming the same reliefs or substantially the same reliefs as those claimed in their aforementioned appeal.

(c) The power of the Court of Appeal to grant the reliefs prayed for in the defendants’ motion on notice dated 21/11/91 derives from the inherent jurisdiction of that court.

(d) By reason of the foregoing “it is not competent for the Court before which the motion seeking to invoke its inherent powers is brought to there and then decide the issue still pending in the Court of Appeal.” See Akilu v. Fawehinmi (1989) 21 NWLR (Pt.122) at 199 G-H or (1989) NSCC (Pt. 1) 461 at p. 502 lines 11-13 per Nnaemeka-Agu, J.S.C.

(e) The decision of the Court of Appeal to grant the reliefs prayed for by the defendants in the motion on notice dated 21/11/91 unjustly deprives the plaintiffs of their constitutional right to conrest the appeal mentioned in paragraph (a) hereof.

(ii) Court of Appeal erred in law in granting the prayers of the defendants/appellants when their decision pre-empted and determined the proceedings in another appeal not yet before them. The plaintiffs will rely on the particulars set out under ground (i) in support of this ground of appeal.

(iii) The Court of Appeal erred in law in failing to uphold the of the plaintiff/respondents to the effect that ground 3 of the grounds of appeal in support of the defendants/appellants appeal from the judgment of the court delivered on 1/11/91 is misconceived, frivolous and unsustainable. Accordingly there was absolutely no basis whatsoever for the prayer of the defendants/appellants in the court below for stay.

(iv) The court below erred in law failing to give the plaintiffs/respondents adequate time and opportunity to prepare for and file necessary papers to the affidavit evidence and to the application file on the behalf of the defendants/appellants.

(v) Even if it had jurisdiction to entertain the defendants’ motion on notice dated 21/11/91, the court below erred in law in granting an order which the defendants never prayed for.

Particulars of Error

(a) In their motion on notice dated 21/11/91, one of the defendants’ prayers was for an orderly generally restoring the status quo ante, “as at the date of the Judgment on the 1st of November, 1991.”

(b) In its judgment in relation to the said prayer the court of Appeal granted an order generally restoring the status quo ante-

“before the date of the delivery of the judgment is presumed to be correct until it is set aside by the order of a superior court on appeal, it can never be right (without first deciding that the judgment is wrong) to make an order “restoring the status quo ante” before the date of the delivery of the judgment”

(iv) The court below erred in law in failing to observe that the defendants did not and could not have appealed against the order of the Federal High Court convening an Extraordinary General Meeting of the plaintiff bank and accordingly the question of stopping the meeting so convened for the purpose of ‘Preserving the res pending appeal can never arise”

Further Particulars of Error

(a) The order to convene the meeting was made by the Federal High Court in accordance with the claim therefore by the defendants;

(b) It is the case for both parties that the deadlock which had arisen in the Board can be resolved by trying the issue or controversy as to who were the members of the company so that they can meet to reconstitute the Board;

(c) In the premises, the order of court was virtually made with the consent of the parties;

(d) There is no basis for the suggestion that it is necessary to stop holding the meeting of 9/11/91 in order to preserve the “res” in the defendants’ appeal. In particular, Ground 3 of the defendants’ grounds of appeal cannot be treated as basis for stopping the said meeting.

(vii) If (which is denied) it had jurisdiction to entertain the defendants’ motion dated 21/11/91, the court below erred in law in making the orders prayed for “pending the determination of the appeal before us.”

Particulars of Error

(a) The decision of the Court of Appeal only dealt with the invocation of the disciplinary powers of that court to undo what had been done and no consideration was given nor were arguments presented to the court on the merit of prayer (iii} in the said motion.

(b) The Court of Appeal failed to appreciate that its decision to set aside the proceedings of and decisions taken at the meeting of 9/11/91 was a distinct and separate exercise from the consideration of the merits of prayer (iii):

(c) The orders made by the Court of Appeal were orders which were, in the circumstances unreasonable and which no tribunal, properly instructed in the law applicable, would or ought to have made.”

The second Notice of Appeal dealing with questions other than questions of law alone reads as follows:

“GROUNDS OF APPEAL

(i) The court below failed to give the plaintiffs a fair hearing by insisting on taking the defendants’ motion on notice dated 21/11/91 on 3/12/91 thereby giving the plaintiffs a grossly inadequate time to prepare an answer to the 39 paragraph affidavit of the said defendants.

(ii) The court below erred in law and on the facts in failing to observe that their failure to give the plaintiffs adequate time as aforementioned they contravened the plaintiff’s legal rights guaranteed under Section 33 of the 1979 Constitution.

(iii) The court below erred in law and on the facts in holding that (a) the defendants’ counsel told the Federal High Court that “he had just seen the Newspapers that morning and drew the attention of the court to the publication in one of them that the meeting had been held” and (b) Emmanuel Ejidike (one of the defendants) “read in the newspaper only on the morning of 11th November, 1991 that the meeting in question was held on 9th November, 1991.”

Particulars of Error

(a) In the narration by the learned trial Judge of the address of learned counsel for the defendants it is clear that what he (Ajayi) said was that he was told that the meeting had been held but his clients did not attend for reasons stated by him to the court;

(b) Mr. Ejidike’s affidavit did not contain the statement attributed to him by the Court of Appeal.

The court below was wrong in coming to the conclusion that the defendants’ counsel made an oral application to the learned trial Judge.

(iv) The court below was made wrong in coming to the conclusion that the defendants’ counsel made oral application to the learned trial Judge.

Particulars of Error

(a) It was the defendants’ motion on notice dated 4/11/91 and no other cause or matter that was before the court when counsel for the defendants addressed the learned trial judge;

(b) Counsel for the defendants addressed the learned trial Judge in the (with respect) erroneous belief that he could urge the court to grant him reliefs which were not specifically set forth in his motion on notice;

(c) If counsel for the defendants had wanted to make a fresh oral application he would have complied with the provisions of the applicable rules of court.

(v) The court below erred in law and on the facts in holding that “there exists special circumstances which made it impossible or impracticable to file the application in the court below.

Particulars of Error

(a) The main reason for the conclusion reached by the court below was the alleged failure of Jinadu, J. to fix a date for an ex parte motion and a motion on notice dated 13/11/91 filed on behalf of the defendants;

(b) In coming to the conclusion aforesaid, the court below failed to consider the content of paragraph 39 of Chief Ralph Obioha’s affidavit and the document (Exhibit 7 to that affidavit) which supports what the Chief swore to;

(c) Both parties were before the court on 18/11/91 and it does not appear that the defendants made any complaint to the court;

(d) The Court of Appeal virtually made a finding of bias against Jinadu, J. when the material upon which they based such a severe inference was totally inadequate to support such finding;

(e) The Court of Appeal did not take account of the fact that the plaintiffs were not given adequate time to search the High Court file and offer affidavit evidence to show what in fact happened.

(vi) The court below was wrong on the facts and also in law in regard to the references and comments which they made to the appointment of Receiver/ Manager by Jinadu, J. before the commencement of trial in this action.

Particulars of Error

(a) Since the attention of the Court of Appeal was drawn to the fact that there was an appeal pending before them in regard to the appointment of Receiver Manager, the court should have refrained from making the references and comments which they made regarding the appointment;

Alternatively

(b) There was no application (oral or written) by either party for the appointment of a Receiver/Manager. In making the appointment Jinadu J. acted suo motu.

4. Reliefs Sought From the Supreme Court:

To set aside the order of the Court of Appeal and striking out the application of the defendants in the court below and or dismiss the same and or order a re-hearing thereon.”

In his brief of argument. Chief William, S.A.N. for the plaintiffs formulated the following issues for determination in this appeal:

(i) Whether the Court of Appeal had jurisdiction to entertain or determine the prayers contained in the Motion on Notice filed by the defendants and dated 21/11/91 when:

(a) There was an appeal initiated by a Notice of Appeal dated 21/11/91 filed by the defendants raising the same or substantially the same questions as those raised in the aforementioned Motion on Notice.

(b) No application was ever made to the Federal High Court for an order:

“Generally restoring the status quo ante as at the date of judgment delivered on the 1st of November,

1991,”

Pending the determination of the appeal against the final judgment of 1st November, 1991

(c) Notwithstanding the fact that the prayer contained in the aforementioned Motion on Notice was for an order:

“Generally restoring the status quo ante as at the time of judgment delivered on the 1st of November,

1991”

(d) The only arguments considered by the Court of Appeal in their ruling were those relating to the disciplinary powers of that court to undo what has been done pending the appeal against the judgment of the 1st November, 1991 and not the jurisdiction (which was in fact erroneously exercised) to determine the merits of the application for temporary relief pending the appeal.

(ii) Even if (which is not conceded) the Court of Appeal had jurisdiction to entertain and determine the prayers contained in the defendant’ s Motion On Notice dated 21/11/91, should a court properly instructed in the law applicable, have made the order which it made

The subsidiary issue for determination is whether the Court of Appeal was correct in making vital and important pronouncements on the appointment of a Receiver/Manager pending trial at the Federal High Court, when they were aware that an appeal was pending before that court on that very matter.

In his own brief of argument, Chief Ajayi, S.A.N., for the defendants also formulated issues for determination arising from the grounds of appeal filed, but having regard to the grounds of appeal and the submissions of both counsel, I am of the view that the resolution of the issues formulated by Chief Williams will lead to the proper determination of this appeal. I will therefore confine myself to those issues.

The first issue raised for determination in the plaintiffs’ brief is whether the Court of Appeal had jurisdiction to determine the prayer contained in the motion dated 21/11/91 when the appeal filed by the defendants on the same day raised the same or substantially the same question. Chief Williams in his brief drew the attention of the court to the defendants’ motion dated 21/11/91 which, prayed the Court for an order:

(i) Setting aside the proceedings and decisions of the General Meeting of the 1st plaintiff held on Saturday the 9th November, 1991.

(ii) Nullifying any decisions taken or the implementation or any implementation thereof and in particular reinstating all employees of the Bank whose appointments were terminated after the date of the said meeting.

(iii) Generally restoring the status quo ante, at the 1st plaintiff/respondent bank, as at the date of the judgment delivered on the 1st of November, 1991 and submitted that the very issue raised by the defendants’ pending appeal had been decided in advance by the Court of Appeal in its decision of 5/12/91. It was his contention that the Court of Appeal had no jurisdiction to do so, citing in support of his submission, the case of Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 (1989) NSCC (Pt.1) 4611. I am unable to accept this submission. I think the order made by the Court of Appeal in its ruling of 5th December, suspending the decisions of the meeting of 9th November is an interlocutory order pending the determination of the appeal. It cannot be said that the order has finally determined the appeal.

The second issue raised by Chief William (SAN) for the plaintiff on p. 5 of his brief is whether the Court of Appeal was right in granting to the defendants an order “generally restoring the status quo ante as at before the date of judgment delivered on 1st November 1991” when the prayer of the defendants was for an order:

“generally restoring the status quo ante as at the date of judgment delivered on the 1st of November, 1991.”

It was the submission of Chief Williams that the order should be set aside by this court as it was not the order asked for by the defendant.

While it is my view that a court should not generally grant to a party a relief not claimed by that party, there is nothing wrong in a court, in the exercise of its inherent power, to grant to a party a relief which, in the circumstances of the case that party is entitled to. In this case although prayer (iii) of the defendants’ motion dated 21st November, 1991 asked for an order:

“generally restoring the status quo ante, at the 1st plaintiff/respondent bank, as at the date of judgment delivered on the 1st of November, 1991.”

It is obvious from the submissions of their counsel that what was sought was the restoration of the status quo before the date of judgment which the Court of Appeal granted. In any case, it has not been shown that what the Court of Appeal granted was more than what the defendants prayed for. I see no substance in this appeal.

As to whether the Court of Appeal had jurisdiction to entertain the prayers contained in the motion dated 21st November, 1991 when the only arguments considered by the Court related to its disciplinary power only to undo what had been done. I am in complete agreement with Chief Ajayi that the court had the jurisdiction to do so. The defendants’ application to the court was to persuade it to exercise that jurisdiction which it undoubtedly had. Whether the court wrongly exercised that jurisdiction by omitting to invite arguments on some other aspects of the application is, in my view, an entirely different matter.

Another issue raised for determination is whether the Court of Appeal was correct in making vital and important pronouncements on the appointment of a Receiver/Manager pending trial by the Federal High Court, when they were aware that an appeal was pending before that court on that very matter. It was the contention of Chief Williams that the finding of the Court of Appeal that he applied orally for the appointment of a receiver was not supported by any evidence and that that finding must be regarded as an error of law. Now, was the Court of Appeal, on the matter before it, wrong to have made a finding that Chief Williams did make an oral application to the learned trial Judge for appointment of a Receiver/Manager Having carefully perused the record of proceedings, I have no doubt in my mind that the Court of Appeal was right when they upheld the submission of Chief Ajayi that Chief Williams did make an oral application for the appointment of a Receiver/Manager. The learned Senior Advocate’s submission to the learned trial Judge on 10/6/91 as recorded by the trial judge makes this conclusion absolutely clear. On that day he is recorded to have said:

“Submits that the contention of the plaintiffs and that the register of members relied upon by the defendants is not the authentic register of members and that there is forgery of the register. The Managing Director of the Bank is also accused of concealing the true and authentic register of members. Submits that in this circumstance court cannot act on the register until the other side is heard in evidence. Submits that in this case the question of whether the other 18 members are members is irrelevant to the prosecution of this case. I agree that the burden of argument is on us to show that not withstanding the pendency of the dispute in the other suit FHC/L/M69/91 the Court can grant the plaintiffs prayer in claim I of the Statement of Claim. If we fail we have an alternative claim for the appointment of a Receiver/Manager.

Submits, there is no dispute that there are two factions and that the Managing Director belongs to one faction therefore why should he continue to manage the bank. In view of the nature of the allegation it is not fair to allow the Managing Director to continue to run the bank. Submits the management of a company is something separate and distinct from the powers of the shareholders. I refer to Feathstone v. Cooke, 16 L.R. Equity 298, 301, 302 Trade Auxiliary v. Vicers, 16 L.R. Equity 303 at 305. On the fact that the board in this case can function. I rely on Automatic Self Cleansing Fitter Syndicate Co. v. Cunning home (1906) 2 Ch. 34 at 44 Grammaphone & Typewriter Ltd v. Stanley (1908) 2 KB 89 at 105. Submits that until the whole case is finished we do not want the Managing Director to continue to run the affairs of the bank. I therefore submit that our case be heard and in the other case we ask for pleading.”

While it is true that there is nowhere in the record of proceedings specifically showing that Chief Williams made an oral application for the appointment of Receiver/Manager, a careful consideration of the learned Senior Advocate’s submission to the learned trial judge as set out above leaves no one in doubt that he did invite the learned trial Judge to do so. He indicated in clear terms, that his clients did not want the Managing Director to continue running the affairs of the 1st plaintiff Bank.

With regard to the issue relating to the comments said to have been made by the Court of Appeal on appointment of Receiver/Manager, it was the submission of Chief Williams that in his Ruling, Niki Tobi, J.C.A. made reference to the fact that the plaintiffs’ counsel made an oral application to Jinadu, J. for appointment of a Receiver and that the application was granted but when the defendants’ counsel made his own oral application to the same judge to set aside the proceedings of the Extraordinary General Meeting held on 9/11/91, his application was refused. It was his submission that since there was an appeal pending on the appointment of receiver, the Court of Appeal should not have made the comments which they did on the matter.

While it is my view that an appellate court should generally refrain from commenting on a matter which is pending on an appeal before it, in this particular case, it is difficult to see how the Court of Appeal could possibly avoid commenting on the circumstances relating to the appointment of Receiver/Manager by the learned trial Judge after both counsel had made submissions on the matter. In any case it has not been shown that the comments so made by the Court of Appeal are in any way, likely to prejudice the fair hearing of the pending appeal or occasion a miscarriage of justice.

In the second Notice of Appeal filed by Chief Williams, SAN, on behalf of the plaintiffs, the learned Senior Advocate formulated eight questions (other than questions of law alone) for determination as follows:

“(i) Whether the plaintiffs were given adequate time to answer the affidavit evidence of the defendants.

(ii) If the answer to question (i) is in the negative, was the right of the plaintiffs to a fair hearing guaranteed under Section 33 of the 1979 Constitution contravened

(iii) Whether the Court of Appeal was correct in holding that there were circumstances which made it impossible or impracticable for the defendants to apply to the Federal High Court for the reliefs prayer for in their motion on notice dated 21st November, 1991.

(iv) Whether the Court of Appeal was correct in holding that the defendants’ counsel in fact made an oral application to the Federal High Court when the defendants’ motion on notice dated 4/11/91 came up for hearing on 11/11/91.

(v) If the Supreme Court should find that it was correct for the Court of Appeal to comment on the appointment of a Receiver/Manager pending trial were the comments made by that Court valid

the question of what Chief Ajayi said before the Federal High Court 11/11/91 in relation to the National Concord of that date.

(vii) Was the Court of Appeal correct in holding that in the circumstances of this case the defendants were compelled by necessity to make an oral application.

(viii) Whether the Court of Appeal was correct in holding that the learned trial Judge failed to fix a date for Motion Ex Parte and a Motion on Notice tiled by the defendants dated 13th November, 1991.”

With regard to the first question raising the issue of fair hearing, Chief Williams submitted that the plaintiffs were served with the defendants’ motion dated 21/11/91 on 25th November, at 4.00 p.m. The hearing notice was for 2nd December, which was the first working day after the holidays as Wednesday, Thursday and Friday (27th-29th November) were public holidays. It was his submission that the Court of Appeal insisted that their counter-affidavit must be filed by 10 a.m. on the following day and that the hearing of their Motion must go on at 12 noon that day. He complained that the time given them to prepare their affidavit evidence was insufficient and submitted that failure on the part of the Court of Appeal to give them sufficient time to prepare their counter-affidavit amounted to a denial of fair hearing. I do not see any substance in this complaint as there is nothing on the record to show that the learned Senior Advocate applied for time to enable the plaintiffs prepare their affidavit which application was unreasonably refused.

As to whether the Court of Appeal was correct in holding that there were special circumstances which made it impossible or impracticable for the defendants to apply to the Federal High Court for the reliefs prayed for in their motion dated 21st November, 1991. I am of the view that the court was correct. Now, Order 3 rule 3(4) of the rules of the Court of Appeal provides that.

“Whenever under these Rules an application may be made either to the court below or to the Court it shall not be made in the first instance to the court except where there are special circumstances which make it impossible or impracticable to apply to the court below.”

In his lead ruling, Niki Tobi, J.C.A. dealt with this issue and after construing what, in his view, amounted to an impossible or impracticable act, concluded as follows:

“In the instant case, the learned trial Judge, by his failure to fix the motions for hearing had made it impossible or impracticable for the applicants to seek the reliefs in this court. The doors of the court were firmly locked against the applicants and they could only open them at the pain of possible deprivation on their part. In the circumstances, I hold that there exists special circumstance, which made it impossible or impracticable to file the application in the court below.”

I entirely agree with the reasoning and the conclusion of the learned Justice of Appeal

The next issue is whether the Court of Appeal was right in holding that the defendants’ counsel made an oral application to the Federal High Court when the defendants’ motion on notice dated 4/11/91 came up for hearing on 11/11/91. I have no difficulty in coming to the conclusion that Chief Ajayi for the defendants did make an oral application to Jinadu, J. on 11/11/91 urging the learned trial Justice make an order, as recorded by Jinadu, J. in his Ruling of 12/11/91: “setting aside the proceedings held as a result of the notice of meeting issued pursuant, to the order of this Court in its judgment and restore all parties affected to the positions which they were before this court’s judgment.” In that ruling, Jinadu, J. was of the view, agreeing with the submission of Chief Williams that “the court can only interfere in making the order sought if, and only if, there is a prayer to that effect contained in the motion paper.” He concluded in his ruling as follows:

“Having regard to the following, coupled with the fact that Chief Ajayi, S.A.N. did not seek the leave of this court to amend the prayers contained in his application to incorporate the prayer to set aside the proceedings at the meeting of the 1st respondent held on 11/11/91 this court cannot grant the said prayer which is accordingly hereby refused.”

Anybody who has read the whole of Jinadu, J’s ruling delivered on 18th November, 1991 would have no difficulty at all in coming to the conclusion that the “prayer” which was refused was Chief Ajayi’s oral application.

Issue No. (v) relating to the comments said to have been made by the Court of Appeal on appointment of a Receiver/Manager has been dealt with earlier in this judgment.

With regard to the issue of the resolution of the conflict of evidence by the Court of Appeal as to what happened in the Federal High Court on 11/11/91, paragraph 22 of the affidavit of Mr. Ejike in support of the motion on notice dated 21/11/91 reads as follows:

“When the Motion on Notice for the suspension of the orders of the learned trial Judge then came up on Monday 11th November, our counsel Chief G.O.K. Ajayi, S.A.N. informed the Court that he had just seen the Newspapers that morning and drew the attention of the Court to the publication in one of them that the meeting had been held and he thereupon made an oral application that the Court should set aside the proceedings of the meeting held on Saturday 9th November, 1991 as those proceedings were calculated to frustrate the exercise of the discretion of the Court to hear the application for the suspension of the order.”

Paragraph 31 of the counter-affidavit deposed to by Chief Obioha says:

“Paragraph 22 of the said affidavit is untrue in the sense that I never heard Chief Ajayi say that he had just read of the Saturday meeting in the newspapers that morning, nor did he expressly tell the court that he was making any oral application to the court”

While Mr. Ejike in his affidavit swore categorically that Chief Ajayi informed the court that he had just seen the publication in one of the newspapers that morning stating that the meeting had been held, all that Chief Obioha said in paragraph 31 of the counter-affidavit was that he never heard Chief Ajayi say so.

In the circumstances, in my view the Court of Appeal was justified in preferring the affidavit evidence of Mr. Emmanuel Ejike to that of Chief Obioha.

As to whether the Court of Appeal was correct in holding that in the circumstances of the case, the defendants were compelled by necessity to make an oral application. I would answer the question in the affirmative since that court found, as a fact, on the affidavit evidence before it that it was on the morning of 11th November, 1991, that the defendants knew that the meeting in question was held on Saturday, the 11th November, 1991.

The last point is whether the Court of Appeal was correct in holding that the learned trial Judge failed to fix a date for Motion ex parte and a Motion on Notice filed by the defendants dated 13th November, 1991. In my view the Court of Appeal was right in so doing. Paragraphs 31 to 35 of the affidavit of Mr. Emmanuel Ejike which stated specifically that the learned trial judge had failed to fix a date for the hearing of the motions have not been effectively controverted not even by paragraph 39 of the counter-affidavit which merely says:

“The contents of paragraphs 33, 34 and 35 of the affidavit cannot be true. Exhibit 7 shows that the motion filed on 13/11/91 must originally have been fixed for the 18th of November. It was served on Chief Rotimi Williams’ Chambers on 25/11/91 and is to come up for hearing on 3/12/91 (i.e. today).”

In the circumstances the learned Justice of Appeal was absolutely right in his finding that “here is no evidence that the motion was ever fixed by the learned trial Judge. And what is more, he has not up till this moment fixed the motion.”

Having given very careful consideration to all the arguments and submissions of learned counsel in the appeal. I have come to the conclusion that the decision of the Court of Appeal was right. The appeal therefore fails in its entirety and it is accordingly dismissed with N1000.00 costs awarded to the defendants.

---

SC.317/1991