NBM Bank Limited V. Oasis Group Limited (2004)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

The respondent sued the appellant in the Federal High Court by a writ of summons filed on the 23rd of October 2002 claiming the following reliefs:

“(i) A declaration that the valuation of the defendant’s share carried out by KPMG Audit is not fair value of the defendant’s shares.

(ii) A declaration that the reliance by the defendant on valuation carried out by KPMG Audit is in contravention of the defendant’s Articles of Association.

(iii) A declaration that the decision of the defendant as manifested by the resolution of its Board on 18th defendant and consequently a nullity.

(iv) An order setting aside the valuation report of KMPG Audit on the ground that it does not conform with the requirements of the defendant’s Articles of Association.

(v) An order setting aside the decision of the defendant made through its Board of Directors on 18th October, 2002 as it relates to the disposal of the plaintiff’s shares in the defendant, as constituting a breach of the Articles of Association of the defendant.

(vi) An order of perpetual injunction restraining the defendant, whether itself, its servant, agents, privies and/or representatives from taking any further step(s) whatsoever, in disposing of, perfecting the transfer of, parting with title in or otherwise in anyway further dealing with the plaintiff’s shares in the defendant other than on the basis of a fair value as required by the defendant’s Articles of Association.”

The parties exchanged pleadings. In a motion filed on the 23rd of October, 2002, the respondent sought the following reliefs from the trial court:

“1. An order of interlocutory injunction restraining the defendant whether by itself, its servants, agents, privies and/or representatives from taking any further step(s) whatsoever in disposing of, perfecting the transfer of, parting with title in, or otherwise in anyway further dealing with plaintiff’s shares in the defendant or issuing and/or delivering new share certificates covering or in respect of the plaintiff’s shares to any person whatsoever or reflecting the transfer of the said shares against the names of the transferees in the register of members of the defendant or to remove or expunge the name of the plaintiff from the register of members of the defendant pending the determination of this suit.

2. An order of interlocutory injunction restraining the defendant whether by itself, its servants, agents, privies and/or representatives from preventing the plaintiff from exercising its proprietary right over the 400,000,000 50k shares held by it in the defendant bank pending the determination of this suit.
3. An order of interlocutory injunction restraining the defendant whether by itself, its servants, agents, privies and/or representatives, and anyone claiming any rights in respect of the 400,000,000 50k shares held by the plaintiff in the defendant bank (which are the subject matter of this suit) from exercising same proprietary rights whatsoever on the said 400,00,000 50k shares in the defendant bank pending the determination of this suit.”

The appellant filed a counter-affidavit in opposition to the motion. The learned senior counsel for both parties strenuously argued the motion before the High Court which granted the order of injunction sought by the respondent. Dissatisfied with that ruling, the appellant has appealed to this court and the learned senior counsel for it filed a brief of argument and identified one issue for determination as follows:

“Whether having regard to the factors determining the grant of injunction, it can be said that the plaintiff has satisfied the conditions which may warrant the grant of its application?.”

The learned senior counsel for the respondent also filed a brief and identified one issue for determination thus:

“Whether in the light of the affidavit evidence including the vital exhibits placed before it, the lower court was justified in granting the interlocutory reliefs designed to protect the proprietary interest of the respondent during the pendency of this suit?.”