Metal Construction (W.A) Ltd & Ors V. Mrs. D.A. Migliore & Anor (1979)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C. 

On the 25th day of June, 1979 we dismissed this appeal and ordered –

“1. That the Register of Shares showing the deceased member, Mr. Sergio Migliore as owner of 107500 shares of N2.00 each should be rectified within 7 days of today and the names of the respondents herein be substituted, for that of the deceased, as current owners of the said 107500 shares;

2. That within two days of the said rectification of the Register aforesaid that the appellants herein (and the 1st appellant who has never objected to the endorsement in the said Register of the names of the respondents as owners of the shares aforesaid in particular) should deliver to the respondents herein a new shares certificate for the number of shares aforesaid, as Administrators of the estates of Sergio Migliore (deceased).”

The appeal came as a further appeal, from the Federal Court of Appeal, Lagos, arising from a judgment delivered by the Federal Revenue Court, Lagos, in which the former court affirmed the judgment of the lower court but ordered rectification of the Register before the delivery of the new shares certificates to the administrators of the estates of the deceased member.

Before us on appeal, Chief Rotimi Williams appeared for all the appellants, although we drew his attention to the fact that the 1st appellant had always had a separate legal representative, and from the nature of what was contained in the record, the 1st appellant did not oppose the application of the respondents in the Federal Revenue Court; it appeared to us surprisingly that he could have been described as an appellant before us, but, nevertheless, we allowed learned counsel to argue the case since he said he represented all the appellants. He intimated us that he did not intend to put forward any arguments on the grounds of appeal relating to the findings of fact by the Federal Revenue Court, and they were abandoned. He based his submission on law. The grounds of law which he argued most extensively read as follows:-

“The learned Judges of the Federal Court of Appeal erred in law and did grave injustice to the appellants by deciding the appeal upon grounds not relied upon by the Judge in his judgment and by granting a relief not prayed for either in the court below or in the Court of Appeal particularly when-

(a) there was no application in the court below or before the Federal Court of Appeal to amend the claim on the Originating Summons;

(b) no notice was served on the appellants that the respondents will or intend to contend that the decision of the Federal Revenue Court should be varied or that it should be affirmed on grounds other than those relied on by that court;

(c) no arguments were invited from counsel and no opportunity was given to prepare arguments on whether or not

(i) it is approriate for the Court of Appeal to grant a relief other than that claimed by the respondents in their Originating Summons; and

(ii) whether on the facts and circumstances herein it was approriate to grant such other relief as aforesaid.”

The facts of this case are not in dispute. The originating summons which reads:-

“Let the above-named MENTAL CONSTRUCTION (WEST AFRICA) LIMITED whose registered office is situate at 13, Burma Road, Apapa and TAIWO OKEOWO, of 20A, Ajose Street, Maryland, Ikeja, Director of the respondent Company, Metal Construction (West Africa) Limited and OLATUNDE AYOOLA of Plot 3-6, Alhaji Adejumo Avenue, Ilupeju Industrial Estate, Ikeja, an officer of the respondent Company, Metal Construction (West Africa) Limited, attend one of the Judges sitting at the Federal Revenue Court Lagos on Friday the 21st day of March 1977 at the hour of nine o’clock in the forenoon on the hearing of an application by the above-named applicants for:

(a) An order pursuant to Section 82 of the above-mentioned Decree that the respondent Company, Metal Construction (West Africa) Limited and the Directors and officers thereof do forthwith deliver to the Applications a Certificate for 107500 shares of N2.00 each in the capital of the respondent Company, Metal Construction (West Africa) Limited in accordance with the Companies Decree 1968 and the Articles of Association of the said company;