Josiah Cornelius Limited & Ors V. Chief Cornelius Okeke Ezenwa (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C. 

Chief Cornelius Okeke Ezenwa and one Chief J.O. Nnoruka together established four companies namely: Josiah Cornelius Limited, Master Malleable Fittings and Foundries Nigeria Limited, The Wheelbarrows, Hand-trucks and Carts and the Roadmaster Industries (Nigeria.) Limited.

The four companies were doing very well. At all times relevant to these proceedings Chief Ezenwa was the Executive Director of each of the four companies and held 40% of the shares in each company. Chief Nnoruka who held the majority shares of 60% in each of the companies was the Chairman and Managing Director of each company.

For undisclosed reasons relationship between the two shareholders soured subsequent upon which Ezenwa brought separate petitions at the Federal High Court Lagos to wind up the four companies. The four petitions were consolidated for hearing with Chief Ezenwa as the Petitioner and the four companies as respondents.

In the course of proceedings after attempts made by the court through a conciliator/receiver/ manager had failed to effect reconciliation, Chief Ezenwa brought an application before the court to advertise ‘the four petitions. The respondents resisted the application and after addresses by learned leading counsel, Chief F.R.A. Williams SAN for the Petitioner and Kehinde Sofola Esq. SAN for the respondents, the learned trial Judge in a written ruling termed “judgment” concluded:

“I therefore refuse the prayer to wind up the respondents but will make other orders under Section 312 aforesaid. But before deciding what power to invoke under the provisions of Section 312 aforementioned I must by law invite learned counsel on both sides to address the court. For this reason this matter will be adjourned to 16/9/92 for the addresses. Meanwhile the tenure of office of the Receiver/Manager is hereby extended to that date.

There is no order as to costs.”

This decision was given on the 12th of August 1992 and shall hereinafter be referred to as the first decision. Following this decision the Petitioner on 25/8/92 filed a Notice of Appeal which shall hereinafter be referred to as the first appeal. More on this appeal will be said in the course of this judgment.

Following the first decision the parties appeared before the learned trial Judge to address him on the order to be made pursuant to Section 312 of the Companies and Allied Matters Act. On 25/9/92 when the parties and their counsel were again brought before the court for the purpose of addressing it.

Learned leading counsel for the Petitioner observed as follows:

“I respectfully ask for an adjournment to apply for rectification of the slip in the judgment and order of the court delivered and made on 12/8/92.”

And learned leading counsel for the respondents reacted in these words:

“I have intended to argue that mere technicality should give way to substantial justice. I submit that the court is entitled to rectify the slip and there will no longer be any need to stay further proceedings on this matter or to proceed with an appeal, I do not oppose the application. ”

The court in a short Ruling granted the application. The Petitioner later filed the summons whereby he applied for an order “that the order made herein on Wednesday the 12th day of August be corrected in the manner set forth in the Schedule to this Summons…..” The Schedule read: