Okezie & Ors V. Cbn & Ors (2020)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALUMJE, J.S.C.

The 4th Respondent herein, Mallam Lamido Sanusi, who was then the Governor of Central Bank of Nigeria, on the 14th August 2009, issued an order removing all the executive Directors of the 6th Respondent, the Union Bank PLC and appointed the 5th Respondent, Funke Osibodu and others to replace them. Similarly, by the same order, the sum of one hundred and twenty Billion (N120 Billion) was injected into the 6th Respondent on the ground, that it was weak, undercapitalized and/or insolvent and therefore unreliable and an unsafe financial institution. The 4th respondent published his actions and accusations against the 6th Respondent which he threatened to turn over to the second Respondent, the Nigeria Deposit Insurance Corporation or sell it outrightly to foreign investors. As a result of the declared crisis in the 6th Respondent, its erstwhile directors who had been removed were handed over to the Economic and Financial Crimes Commission (EFCC) for investigation and possible recovery of depositors lost funds.

​The Appellant herein, who are shareholders of the 6th Respondent approached the Federal High Court, Lagos, where they challenged the action of the 4th Respondent by taking out an originating summons, filed on the 23rd of October, 2009. In the originating summons, the Appellants did not raise any questions for answer, but set out the following claims: –

1. An order Granting leave to the applicants to bring an/this action IN THE NAME OR ON BEHALF OF the 7th Respondent.
2. A Declaration that the appointment of the 4th Respondent as the Governor of Central Bank of Nigeria is contrary to the Central Bank of Nigeria Act (and/or inimical to the interests of the 7th Respondent), null and void.
3. A Declaration that the purported sacking by the 4th Respondent of all the directors of the 7th Respondent and replacement of them with the 5th Respondent is unlawful being in breach of the Banks and other Financial Institutions Act and/or the Central Bank of Nigeria Act, ultra vires the 4th Respondent, null and void.
4. A Declaration that the 4th Respondent’s exposure of the affairs of the 7th Respondent to adverse publicity in the local and foreign media with the consequence or attracting against the 7th respondent the prejudicial and false conclusions of the ignorant and uninformed is unethical, unprofessional and a breach of the duty of confidentiality which the 1st and 4th respondents owe to the 7th Respondent under the Central Bank of Nigeria Act and/or the Banks and other Financial Institutions Act.
5. An Order restraining the 4th respondent from further parading himself as the Governor of the Central Bank of Nigeria.
6. An Order restraining the 5th respondents from further parading themselves or in any manner acting as directors or other officers of the 7th respondent.
7. An Order restraining the 1st and 4th respondents from further making any prejudicial statements about the 7th Respondent to the public through any medium and in any forum.
8. An Order directing an independent audit of the books of the 7th Respondent against all relevant parameters and fundamentals, particularly the relationship between its liabilities and its asset base.
9. An Order directing the 6th Respondent to forthwith give an account of and pay over to the 7th respondent all monies it has received for the account of the 7th Respondent without any deductions whatsoever and restraining it from further receiving to its account any monies paid to it for the account of the 7th Respondent.
10. An Order restraining the 4th Respondent from turning over or purporting to turn over the control and management of the 7th Respondent to the 2nd Respondent and restraining the 2nd Respondent from taking over or purporting to take over the control and management of the 7th Respondent.
11. An Order restraining the Respondents from discussing, negotiating or entering into any arrangement with any person, institution or authority, including themselves and the Federal Government of Nigeria to dispose of any share of the 7th Respondent or howsoever to transfer the 7th Respondent or its control and management or any asset of the 7th Respondent to any person, institution or authority, including any of themselves or the Federal Government of Nigeria.
12. An Order restraining the 1st and 4th Respondents from making any deductions from the account of the 7th Respondent with the 1st Respondent or entering any debits on the account against the sum of N12 Billion (or any other sum) which the 4th Respondent claimed to have injected into the account without the request or consent of the 7th Respondent.
13. An Order for the reversal and replacement to the 7th Respondent of any interests paid to the 7th Respondent on the said N120 Billion and restraining the 7th Respondent from further making any such interest payments to the 1st Respondent.
14. An Order restraining the 6th Respondent from further inviting, arresting, detaining, prosecution, or further threatening to invite, arrest, detain, prosecute, or otherwise further intimidating or harassing any customer of the 7th respondent in relation to any loan or facility enjoyed by that person from the 7th Respondent legitimately.
15. The sum of N100 Billion being damages for injury to the goodwill and business of the 7th Respondent both present and future arising from the unlawful conduct of the 1st, 5th and 6th Respondents.

The 6th Respondent in this appeal, was the 7th Defendant at the trial Court.

In response to the originating summons, the 1st, 2nd, 3rd, 4th, 5th, and 6th Respondents each filed a memorandum of conditional appearance and issued a Notice of preliminary objection challenging the competence of the suit and the jurisdiction of the Federal High Court to hear and determine the Appellants’ action.

The preliminary objection was heard and in a reserved and considered ruling delivered on the 16th June 2010, Nyako J. upheld the preliminary objection and struck out the suit on the ground that the originating summons did not contain questions for determination. This is what his lordship said:-

“Consequently, when an action is commenced by the originating summons procedure, there are no questions for determination under whatever rule, the served process cannot be competent.

When the originating processes on a suit are not competent, the Court has nothing to adjudicate on. The petitioner (Sic) suit commenced by originating summon’s which has no questions for determination is incompetent. I so find and hold consequently, there is no proper suit before this Court and, there is nothing to adjudicate on. The suit, being incompetent is thus struck out.”

Miffed by this ruling of the Federal High Court, Lagos, the Appellants appealed to the Court of Appeal, Lagos Division and submitted a lone issue for determination of their appeal. The lower Court heard the appeal and dismissed it for lacking in merit. The Appellants are again dissatisfied with the decision of the lower Court. Being aggrieved, they have brought this appeal. Their notice of appeal at pages 708-711 of the record of this appeal, filed on the 26th of January, 2012 contains one ground of appeal which I reproduce hereunder without its particulars, as follows:-

“The Court of Appeal erred in Law when it held that the originating summons of the plaintiffs/Appellants was bad for not containing formulated issues or questions for determination.”

Parties filed and exchanged briefs of argument. Mr. Chuks Nwachukwu, Learned Counsel for the Appellant formulated a lone issue for determination of this appeal and it reads as follows:-

“Whether the lower Court was right in its conclusion that the originating summons of the Appellants is incompetent and must be struck out for not containing questions for construction or determination.”

In arguing the appeal, Learned Counsel for the Appellants submitted that the lower Court erred in Law when it dismissed the Appellant’s appeal on the ground that the Appellants’ originating summons did not contain questions for determination. Learned Counsel cited in aid the format of originating summons in form 2 as provided in Rule 2(2) of the Companies Proceedings Rules 2001 (CPR) in support of the mode in which the Appellants commenced their action, and contended that the Form does not require that originating summons should have questions for determination when the claims are based on Companies and Allied Matters Act, (CAMA). In a further argument, Learned Counsel submitted that their action at the Federal High Court was a derivative action brought under Section 303 of the Companies and Allied Matters Act. Cap. C36, Laws of the Federation of Nigeria, 2004 and that such action under Rule 2(2) of the CPR is to be initiated with an originating summons, which does not contain questions or issues for determination.

In aid, Learned Counsel cited Agip (Nig.) Ltd v Agip Petroli International (2010) 5 NWLR (Pt.1187) 348. Still in argument, Learned Counsel submitted that it is clear that whether under the CPR or the Federal High Court (Civil Procedure) Rules, there is no basis for the conclusion of the two lower Courts that the originating summons of the Appellants is bad and must be struck out for not stating questions for determination. Learned Counsel made reference to Order 3 Rule 9 of the Federal High Court (Civil Procedure)Rules which provides that originating summons shall be as in Forms 3, 4 and 5 of these Rules with such variations as circumstances may require.