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:

“SCHEDULE

Delete the sentence ‘I therefore refuse the prayer to wind up the respondents but will make other orders under Section 312 aforesaid;”

The summons came up for hearing on 12th October 1992 and after addresses by learned leading counsel for the parties, the learned trial Judge ruled as follows:

“I am much grateful to both learned senior counsel for their kind words to me. I believe that a judge is sometime bound to fall into error and once the Judge finds out he should be bold enough to accept his mistake. I therefore grant the application of the petitioner and I delete the sentence at page 14 of my judgment which reads ‘I therefore refuse the prayer to wind up the respondents but will make other orders under section 312 aforesaid’ and substitute therefor the sentence ‘I therefore refuse the petitioner’s application for the advertisement of the winding up petitions: I however, call upon both learned senior counsel to address me on what order I should make under the provisions of Section 312 of the Companies and Allied Matters Act, 1990.”

This decision shall hereinafter be referred to as the second decision.” The matter was further adjourned to 16/10/92 for addresses on the order to make under Section 312 of the Act.

On 16th October, 1992, Chief Williams, S.A.N. addressed the court in which he sought leave to amend the petitions. Further hearing was adjourned for Mr. Sofola SAN to reply. This Mr. Sofola, SAN died on 6/11/92. Ruling was delivered on the application for amendment on the 11th December, 1992. The matter was adjourned to 26th January, 1993 for further addresses. On that day, petitioner’s counsel for the first time indicated that he intended to appeal against the first decision in the following words:

“I have been having second thought on the order made by the court on my application dated 5/10/92. I now think that this court’s order can only be corrected on appeal since it is a point upon which both, counsel and the court agreed the processing of the appeal should not take more than one month.”

After Mr. Ekumankama counsel for the respondents had expressed his surprise at the turn of events, the court ruled:

“Although I am not convinced that the ruling I make on Chief Williams application to correct a slip in my considered ruling on advertisement is wrong in law yet I will rather wait for a month requested by Chief Williams than embark on a fruitless exercise. I therefore adjourn this case as requested by Chief Williams SAN, to 5/3/93 for further argument.”

Meanwhile, the Petitioner had applied to the Court of Appeal for an amendment to his Notice of Appeal and for a departure from the rules. Both prayers were granted on 23/3/03. It would appear that the proceedings in the Court of Appeal in relation to the first appeal lasted much longer than anticipated by the Petitioner at the trial court. The trial court after various adjournments gave a final decision in the matter on 30/7/93. He adjudged as follows:

“1. That the petitions are accordingly hereby struck out with N2,000.00 costs in favour of the respondents.

2. That the majority shareholder Mr. Nnoruka shall buy the shares of the minority shareholder Mr. Ezenwa at a fair value to be assessed by Mr. Tajudeen Adedapo Odofin of Dapo Odofin & Company, Chartered Accountants of 15, St. Agnes Street, Off Birell Avenue, Sabo, Yaba who is hereby specifically appointed to assess the fair value of the shares of the minority shareholder in the four companies and his assessment shall form part of the order of this court.
3. That the majority shareholder is hereby ordered to pay to the minority shareholder any sums assessed by the appointed chartered Accountant as a fair value for the shares of the minority shareholder in the four companies.
4. That the names of the four companies should be changed by substituting new names for the said companies in compliance with the provisions of clause II of the Joint Venture Agreement dated 9th day of July 1989.
5. The Receiver/Manager is hereby granted a period of 3 (three) months ending 30/10/93 to finalise the affairs of the four companies with a view to handing over to the majority shareholder who will also pay for the shares of the minority as assessed by Mr. Odofin and who will also effect the change of names of the companies within a period of 3 months from 30/7/93.”

Being dissatisfied, the Petitioner on 23/8/93 filed an appeal to the Court of Appeal. This shall hereinafter be referred to as the second appeal.

The first and second appeals came before the Court of Appeal and were consolidated. Briefs having been filed and exchanged and after oral arguments by learned leading counsel the court below allowed the two appeals. It set aside the first decision of 12/8/92 and the final decision of 30/7/93 and ordered that the matter be heard de novo by another Judge of the Federal High Court. It is against this decision that the respondents have appealed to this Court upon five original and 7 additional grounds of appeal, Written Briefs of arguments were filed and exchanged and at the oral hearing before us Mr. Kehinde Sofola SAN learned leading counsel for the respondents/appellants and Mr. T.E. Williams of counsel for the petitioner/respondent addressed us. The respondents/appellants shall hereinafter be referred to as appellants simpliciter while the petitioner/respondent shall also be referred to as respondent simpliciter.

In the appellants brief the following 11 questions have been set down as calling for determination in this appeal, to wit:

“(1) Whether or not the Court of Appeal was right to have held that the Petitioner filed an appeal on 25th August, 1992, against the decision of the Federal High Court of 12/8/92.

(2) Whether or not such an appeal, if filed on that date or on any other date, was competent.

(3) Whether or not in view of the amendment of the order of 12/8/92 made by consent of both parties on 12th October, 1992, against which there is no appeal, any of the two grounds of appeal in the first appeal has any leg to stand.

(4) Whether or not the Court of Appeal was right to have held that the Issues for determination raised in the first appeal arose from the grounds of appeal filed.

(5) Whether or not the Issues for determination raised in the second appeal arose from the grounds of appeal filed.

(6) As both parties admitted and the trial Court agreed that the offending sentence in the ruling of 12/8/92 was a slip and no party has resiled therefrom and the Petitioner duly applied to have it amended by its deletion under the slip rule and, not being opposed, the application having been granted and the sentence deleted, whether or not it was not a decision which could only have been reversed by way of a substantive appeal with leave in view of the provisions of section 220(2)(c) of the Constitution, 1979.

(7) Whether or not any Issue was validly before the Court of Appeal against the amendment of 12/10/92 of the order of 12th August, 1992 under the slip rule in view of the notice and grounds of appeal before it.

(8) Whether or not the Court of Appeal correctly comprehended the crucial issue for determination in the appeal

(9) Whether or not the grounds and issues in the two appeals were either the same or one subsumed into the other such that it became unnecessary to consider and decide the issue raised in the second appeal after deciding the first.

(10) Whether or not by first glossing over and not considering the issues raised by, and the orders made in the final judgment appealed against the subject of the second appeal, and the delay entailed thereby, the court below did justice between the parties.

(11) Whether or not on the facts, the respondent could complain of want of fair hearing before the final judgment of 30/7/93.”

I shall consider together questions 1-4, 6 and 7. I will deal next with the other questions together.

QUESTIONS 1-4, 6 & 7:

I have carefully considered the submissions made both in the written brief and oral argument on behalf of the appellants as to the existence or otherwise of the first appeal filed on 25/8/92. I am satisfied from the record of appeal before us that such an appeal was indeed filed, although for reasons that are not clear to me the existence of this appeal was never brought to the notice of the trial court up to and until after that court had made the second decision of 12/10/92. The respondent did not at anytime disclose this to the court either when he sought adjournment to bring in his application for the first decision to be corrected nor at the time the summons was being argued nor when ruling on it was given. This ominous silence however, cannot be taken as non-existence of the appeal. This disposes of Question (1).

There can be no doubt that that appeal was, at the time it was filed, competent but whether at the time it was, however, being heard by the court below, it ought to be entertained is another issue. The court below granted the respondents leave to file an amended Notice of Appeal. I have looked at both the original Notice of Appeal and the amended Notice of Appeal and I can see no difference whatsoever. Be that as it may, the amended Notice of Appeal contained two grounds namely:

“(1) The learned trial Judge misdirected himself in law when he proceeded to deliver a judgment after hearing arguments upon a Motion on Notice brought under rule 19 of the winding up rules for an order to advertise the petition herein.

(2) The learned trial Judge erred in law when he made the decision “I therefore refuse the prayer to wind up the respondents” without hearing arguments of counsel on the merits of the Petition to wind up the respondent’s Company.”

In the appellant’s brief filed by the petitioner, the questions for determination in the appeal were set out as hereunder:

“(1) Whether the court below has the jurisdiction or power to correct the error, which it admittedly made its judgment delivered on 12.8.92

(2) If the answer to the first question is in the negative, what order should this court make in the appeal before it.”

Appellants in their respondents brief gave notice of preliminary objection to the effect that the issues for determination as set out in the appellant’s Brief had no bearing whatsoever to the grounds of appeal and that arguments not having been proffered in respect of the appeal, it should be dismissed. A formal Notice of preliminary objection was subsequently filed to the same effect. In his lead judgment, Akanbi, P.C.A. with whom Sulu-Gambari and Kalgo, J.J.C.A. agreed, observed:

“Respondent’s counsel has in his brief questioned the competence of the Notice and amended Notice of Appeal filed by the appellants against the interlocutory decision of the trial court. First, it is said that the issues raised have no bearing whatsoever on the grounds of appeal. The point was also made that the issue identified is on ‘the jurisdiction or power (of the court) to correct error’ while the ground of appeal alleged a misdirection in law on the part of the trial Judge in that he proceeded to deliver judgment in the case without hearing arguments on the merit of the petition. It was argued that there was no nexus between the ground of appeal filed and the issues identified for determination. Put differently, the issues raised did not arise from or relate to the grounds of appeal filed. As an alternative proposition, learned counsel further argued that in any case, the two grounds of appeal are in themselves defective for the particulars of the alleged ‘misdirection’ or “errors” have not been stated. ‘Consequently, he contended that the grounds ought to be ‘deemed’ as having been abandoned and in consequence should be struck out.” ……

Having stated the objection raised, the learned President considered the law applicable and, quite correctly in my respectful view, observed:

“I agree with the submission and the legal authorities cited by respondents counsel that the issues identified in a brief must derive from or relate to the grounds of appeal filed. A long line of authority supports that contention; and so it can rightly be said that the law on the issue is trite. Indeed in the case of Fasoro v. Beyioku (1988) 2 NWLR (Pt,76) 263 at 270/271. Oputa J.S.C. said:

‘A question for determination has to be referrable to

(i) the case of the parties as pleaded

(ii) the judgment appeal (sic) from

(iii) the grounds of appeal on which the judgment is being attacked,namely the grounds of appeal.’

In Ayeni v. R.A. Agbeja CA/1/260/87 delivered on 21/7/89, I have myself said that –

‘the questions or issues raised for determination in any appeal must necessarily bear a certain relation to the grounds of appeal which in themselves are complaints of errors, commissions or omissions either in law on the facts or both made by a Judge in the judgment being appealed from. ” (Italics is mine)

…………….

Curiously enough the learned President determined the objection in these words:

“That said I must say that although the issues as defined in the appellant’s brief cannot be said to be of the best or to have really exemplified the deftness or adroitness normally expected of any master of brier writing, I agree with appellant’s counsel that the issues identified in the briefs in substance bear a certain relation to the grounds of appeal. In the first appeal, the grounds of appeal and the issues referred to the rectification order made by the trial Judge according to appellant’s counsel he (the Judge) had no power to do so;”

He dismissed the preliminary objection as relating to the first appeal.

With profound respect to the learned President and Justices of the court below, I think they are wrong in the conclusion reached. The questions set out in the appellant’s brief cannot by any stretch of imagination be said to be predicated on the grounds of appeal in the amended Notice of Appeal. Having agreed with this view, it is beholden on them to dismiss the appeal, the two grounds of appeal being deemed abandoned. The appeal before them was a complaint against the decision of the trial court made on 25/8/92. The decision made on 12/10/92 was not on appeal before them and they could not in the appeal against the decision made on 12/8/92 question the correctness or otherwise of the decision made on 12/10/92

This is more so, if the court below had adverted its mind to the fact that the decision made on 12/10/92 was a consent decision and an appeal against such a decision could only be with the leave of the trial High Court or of the Court of Appeal. See Section 220(2) (c) which provides:

“Nothing in this section shall confer any right of appeal

…………………………………………………….

(c) without the leave of a High Court or of the Court of Appeal, from a decision of the High Court made with the consent of the parties ……………”

To have allowed the appellant before them to attack the second decision made on 12/10/92 in the manner he did was to allow him to appeal against that decision without complying with the constitutional requirement of leave to appeal. Their Lordships ought to have upheld the preliminary objection and to have dismissed the first appeal. That disposes of Questions (4) and (7).

I may here again consider whether at the time the court below was entertaining the first appeal there was a decision in existence against which it could be said that the appellant therein was aggrieved. As stated earlier in this judgment, following the decision of 12/8/92 the present respondent filed a summons applying to have the decision rectified by the trial court. The application was heard and granted. The portion of the decision of 12/8/92 being objected to by the respondent had been care of by the second decision of 12/10/92. There was, therefore, no decision of 12/8/92 in existence that could be complained of. What the respondent ought to have done, if he honestly believed after 12/10/92 that the trial court had no jurisdiction to carry out the rectification was to have appealed with leave against the decision of 12/10/92. This disposes of Question (6).

Be all that as it may, it was argued in the court below and in this Court that by filing the summons to rectify the error in the decision of 12/8/92 the present respondent must be taken to have abandoned his appeal filed on 25/8/92 against the decision. The contention of the respondent was that there was no such abandonment.

The court below, per Akanbi, J.C.A. observed in the course of its judgment:

“I have earlier on pointed out that the first appeal to this Court against the rectification order and the application made to the trial Court by the appellant to rectify the slip, were live issues in the two courts. Something one might say, constitutes an abuse of the process of the Court. Unfortunately at the time the application to rectify the alleged slip was being considered, there was no undertaking or any suggestion or assurance of any kind that the appeal would be withdrawn if the rectification is effectuated. The withdrawal of the appeal was never made a condition for the grant of the order of rectification, that being so, I am unable to agree with respondents’ counsel that there was any abandonment of the appeal. Nor do I subscribe to the view that the application to rectify the slip has the effect of ‘extinguishing’ the appeal which was not struck out or dismissed pursuant to any order of Court. I may however observe in passing that the fact that the appeal was pursued after all strategic moves to save appellant’s case in the High Court, had failed, especially after the application for rectification had been made and granted, does give some cause for concern and it is not surprising that Kehinde Sofola Esq, SAN has in his submissions questioned the bona fides of the appellant in this matter and has therefore advocated that he should not be allowed to approbate and reprobate. In my view, Mr. Sofola would have been on stronger grounds if he or the Court below had directed attention to the subsisting appeal before a final decision on the application to rectify the alleged slip was made. Whatever the case, the appeal remained on the Court’s record and having been argued, what remains is for a decision thereon to be given on the merits.”

With respect I do not agree with the approach made by the court below in the passage above. If the court below had considered more deeply the conduct of the respondent, it would have struck out the appeal before it as being in abuse of the process of court. As the record of appeal shows, the existence of the appeal filed on 25/8/92 was never brought to the notice of the trial court. Mr. Sofola SAN, both before the Court below and before us, maintained that he was not aware of it. I have no reason to doubt counsel’s word in this respect, just as I have no reason to doubt Chief Williams word that he filed an appeal on 25/8/92. Having, after filing the appeal, applied to the court below for a rectification of the error contained in the decision of 12/8/92, one would expect that the respondent would not pursue the appeal of 25/8/92. By maintaining that appeal after the decision of 12/10/92 he was grossly in abuse of the process of court and the court below in its inherent jurisdiction, should have stopped him. It is trite law that the court has an inherent jurisdiction to protect itself from abuse or to see that its process was not abused by the proceeding without reasonable grounds so as to be vexatious and harassing .

Having regard to the conduct of the respondent I think it would be a scandal and disgrace to the administration of justice if he were allowed to maintain the appeal he filed on 25/8/92. He chose not to wait for that appeal to run its course. It was evident that his complaint was that the trial Judge did not limit the dismissal in that decision to the motion to advertise which was the issue before the court. He drew the Court’s attention to this error and applied to have the error corrected and this was done. Of what use would the appeal of 25/8/92 be to him that had not been achieved by the second decision of 12/10/92. As it turned out to be, he used his appeal to attack a decision procured by him at his own instance and against which he had not formally lodged an appeal as required under the Constitution. He should never have been allowed by the court below to abuse the process of the court in this manner. From his two grounds of appeal, it is evident that he was not challenging the merit of the trial court’s reasoning but rather the accidental error made by the learned trial Judge in not limiting his order of dismissal to the motion before him but to the petition that was yet to be argued. The conclusion I finally reach is that the respondent’s appeal of 25/8/92 should have been struck out by the court below as being in abuse of the process of court. The trial court could not have put him to his election as that court was unaware that he filed the appeal.

The above conclusions dispose of Questions (1)-(4), (6) and (7). I may however, say that I do not consider it necessary in this appeal to decide whether or not the error made in the first decision of 12/8/92 was one that could be corrected under the “slip rule.”

QUESTIONS (5),(8) (11):

The appellants in their respondents brief in the court below also raised a preliminary objection to the second appeal on the same grounds as their objection to the first appeal. The second appeal was against the final decision of the trial court. There were two grounds of appeal to wit:-

“1. The learned trial Judge erred in law and or exercised his discretion wrongly in proceeding to the final determination of the petition when he was fully aware that the Court of Appeal has yet to determine the matter pending before it concerning the very same matter.

2. Even if (which is not conceded) it was proper for the learned trial Judge to give final judgment on the petition before the decision in the pending appeal he ought to have heard final address by counsel on both sides before doing so.”

In the appellant’s Brief in that appeal the following two questions were set out as calling for determination:

“(i) Was the decision of the learned trial Judge correct and sound when he failed to adjourn the trial until after the hearing and determination of the appeal before the Court of Appeal touching his power and jurisdiction to proceed with the trial

(ii) Was it right for the learned trial Judge to have written and delivered his judgment without giving the petitioner an opportunity of addressing him”

‘the appellant’s objection before the court below was that those questions did not arise out of the two grounds of appeal. The court below however, found:

“….the complaint in the second appeal and the issues distilled therefrom are referable to the decision of the trial court to proceed to give final judgment while the first appeal was still pending in the Court of Appeal.”

The objection was subsequently dismissed. It would appear that Question (i) was a challenge to the exercise of the trial court’s discretion to refuse an adjournment. I cannot see how that question can be said to be predicated on the two grounds of appeal. The court below, with respect, ought to have found that the preliminary objection taken to that question was well taken. The second question would appear to be predicated on the second ground of appeal and as regards that question the preliminary objection taken in the court below was rightly dismissed. That leaves me now to the consideration of whether the parties, particularly the respondent had a fair hearing in the trial court before final judgment was given.

I have considered the submissions made by learned counsel for the parties on this issue and the reason given by the court below (which reason the respondent fully adopted) for allowing the second appeal. I regret I cannot find a case of want of fair hearing established by the respondent. The reasoning of the court below, Per Akanbi, P.C.A. on this issue runs as follows:

“It suffices to say that having regard to the fact that the first appeal was pending in the Court of Appeal and a decision thereon may one way or the other affect the final outcome of the case, the learned trial Judge ought to have exercised a little more patience, grant the adjournment sought, so that, as he himself had on a previous occasion said the entire exercise would not be a fruitless exercise which unfortunately it has turned out to be.”

With profound respect to the learned President and Justices of the court below, I cannot see how a refusal to exercise “a little more patience” would amount to a denial of fair hearing. The law is clear, that is, that an appeal does not operate as a stay of execution or of proceedings. Any party appealing against the interlocutory decision of a court is under a duty to apply for stay of further proceedings pending appeal if he believes the result of his appeal will affect further proceedings in the matter.

Mr. T.E. Williams admitted as much for at one stage of the proceedings he intimated that an application for a stay of further proceedings would be brought. This was never done by the respondent. On the totality of the facts as gleaned from the record I cannot say that the respondent was ever denied fair hearing. The conclusion I finally reach is that the court below ought to have dismissed the second appeal as well.

Consequently I allow this appeal, I set aside the judgment of the court below. I restore the judgment of the Federal High Court given on the 30th July 1993. As there is no appeal against the decision of that court given on 12th October 1992, I say nothing on it and the order made by the learned trial Judge in his Ruling of 12/8/92 having been amended by subsequent order made on 12/10/92.

I say nothing on it either.

I award to the appellants N1,000.00 costs of this appeal.

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SC.102/1994