Gombe V P.W. (Nigeria) Limited (1995)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C. 

The Petitioner by an amended petition filed in the Federal High Court, Ilorin on the 17th October, 1988 prayed as follows:-

“(i) That P.W. (Nigeria) Limited be wound-up by the Court under the provision of the Companies Act 1968.

(ii) And for such further order(s) as may be just to make in the circumstance.

(iii) Your humble petitioner will at the hearing of the petition rely on the Certificate of Incorporation of the Company. Photostat copy of the letter ref. No. CAD/CR/POL.200/13 and the letters stated in paragraphs above and or any other document or documents in any way connected with the petition.”

While the petition was still pending the petitioner brought an interlocutory application in these terms:-

(1) An order that P.W. of Dublin, its servants or agents or howsoever, be restrained from holding out itself as having proprietary interest either as shareholder or Director or Managing Director in the respondent company and to render accounts for the period Mr. H. V. Flinn or any other person (representative of P.W. Dublin) was Managing Director of the respondent company.

(2) An order of the Honourable Court that an independent manager other than the present ones be appointed to manage and control the affairs of the company and to receive all monies, profits, rents and or interests due or receivable by the respondent company pending the determination of this case.

(3) An order of the court directing the Registrar of Companies to strike out the name of P.W. Dublin from the list of member shareholder of P.W. (Nigeria) Limited.

(4) A declaration that the purported allotment of shares to P.W. Dublin is invalid, null and void and of no effect whatsoever.

(5) An order that P.W. Dublin through its agent Mr. H.V. Flinn make reparation for and refund of all monies, properties movable and immovable made to the said P.W. Dublin in the course of the invalid allotment and exercise of proprietary rights in the respondent company.

AND FOR such further order(s) as the Honourable court may deem fit to make in the circumstance.”

The application was supported by an affidavit and a further affidavit all sworn to by the petitioner. The respondent also filed its own counter-affidavit and further counter-affidavit. In a considered ruling the learned trial Judge Eigbedion J., struck out the name of one Mr. H.V. Flinn whom the petitioner chose to have made a party in the suit without the leave of court and then dismissed the application thus:-

“As I held herein before, the application is a misconceived one, as I find no basis for bringing (the application. Secondly, it is my considered opinion, that the Rule in Foss V. Harbottle (1843) 2 Hg 461 applies to this application. Having so held, the orders sought by the petitioner/applicant must, and are hereby refused.