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: –
- An order Granting leave to the applicants to bring an/this action IN THE NAME OR ON BEHALF OF the 7th Respondent.
- 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.
- 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.
- 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.
- An Order restraining the 4th respondent from further parading himself as the Governor of the Central Bank of Nigeria.
- An Order restraining the 5th respondents from further parading themselves or in any manner acting as directors or other officers of the 7th respondent.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
In reply Dr. K.U.K. Ekurueme leading Mr. Ahmad Belgore Esq., and other Learned Counsel for the Respondents submitted that the principal claims in the Appellants originating summons were not CAMA based, therefore, the Court of Appeal was right to have upheld the preliminary objection which was based on the submission that the provision of Rule 21 of the CPR limits the applicability or scope of the CPR to actions founded on any provision of any Section of part A of the Companies and Allied Matters Act. Learned Counsel differentiated the case of Agip (Nig.) Ltd v Agip Petroli International (Supra) and the instant case and contended that the facts are not the same. Learned Counsel submitted that the matter at the lower Court was decided on the basis of Order 3 Rules 6 and 7 of the High Court (Civil Procedure) Rules which rules show that an originating summons where a person relies upon in order to establish entitlement to a legal or equitable right must contain issues for determination. Learned Counsel conceded to the fact that Order 3 Rule 9(1) of the Federal High Court Rules provides for three forms, namely Forms 3, 4 and 5. Learned Counsel also concedes to the fact that Form 4, being a special form does not provide for questions for determination and therefore it is possible that the Federal High Court Rules accommodate Form 2 of the CPR, by virtue of form 4 in the Federal High Court Rules. However, Learned Counsel insists that Form 4 was not the appropriate Form to have been used for commencing the Appellant’s action. Finally, Learned Counsel urged this Court to resolve the sole issue in favour of the Respondents.
The Appellants’ claims as endorsed in the originating summons have been set out elsewhere in this judgment. I agree with the Learned Counsel for the Respondents that not all the claims of the Appellants are CAMA based. This therefore, makes it impossible for the originating summons to have been issued under the Companies Proceedings Rules which provides for issuing of originating summons as in Form, specified in the schedule to the Rules. The claims as constituted are not derivative actions as there are not claims against the directors of the 6th Respondent.
The decision of the lower Court to dismiss the appeal was based on Order 3 Rule 7 of the Federal High Court Rules 2009 and the case of Famfa Oil Ltd v Attorney-General of the Federation & Anor (2003) 18 NWLR (Pt.852) 453 and a host of other cases. Order 3 Rule 7 of the FHR 2009 provides as follows: –
“Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.”
There is clearly a provision in this Rule that has provided for the raising of questions in an originating summons before reliefs are claimed. However, this provision is not absolute. If the provision in Order 3 Rule 7 were absolute, the provision in Order 3 Rule 9(1) would have been unnecessary. This Rule provides as follows:-
“An originating summons shall be in the forms 3, 4 or 5 to these Rules, with such variations as circumstances may require.”
Learned Counsel for respective parties are ad idem that if a plaintiff desires to raise questions in his originating summons, he will resort to Form 3 which is a general form. However, a party who does not desire to raise questions in his originating summons can avail himself of the use of the special Form 4, as it is not necessary to raise questions in the originating summons. Form 5 is the requisite Form for ex-parte originating summons.
The Authority in Famfa Oil Ltd v Attorney-General of the Federation & Anor (Supra) and a host of other authority cited by the lower Court in support of its decision were decided under the Federal High Court (Civil Procedure) Rules 2000. Order 7 Rules 1 and 3 of the FHR 2000 made the following provisions: –
“7(1) The provisions of this order shall apply to all originating summons subject to any special provisions relating to originating summons under any enactment or Law (3) Every originating summons shall include a statement of the questions on which the plaintiff seeks the determination or direction of the Court or as the case may be concise statement of the relief or remedy claimed in the proceeding began by the originating summons with sufficient particulars to identify the causes of action in respect of which the plaintiff claims that relief or remedy.”
The Federal High Court (Civil Procedure) Rules 2009 does not have such mandatory provision. Instead Order 3 Rule 9(1) of the Federal High Court Rules has given liberty to the plaintiff who is desirous of commencing an action by originating summons to choose between Form 3 and Form 4 depending on the circumstances of his case. If he chooses Form 4, he does not need to raise questions before setting out the reliefs which he seeks. I think there is sufficient provision in Order 3 Rule 9(1) of the Rules of the Federal High Court to sustain the originating summons of the Appellants at the trial Court. Justice clearly does not reside in the Form of the processes of the Court. Where there are sufficient provisions in the Rules of the Court to sustain an action the rules of natural justice demand that parties should be heard with a view to resolving their dispute once and for all. It is in the interest of justice that parties are not shut out prematurely from being heard in accordance with the laid down procedures in the Courts Rules. This Court in Inakoju v Adeleke (2007) 4 NWLR (Pt. 1025) 427 at 574 paraa F-G, made this point clear when it held:-
“Dismissal of an action in limine is the most punitive relief that a Court can grant to a defendant against the plaintiff. Because of its punitive nature, Courts of Law are reluctant or loath in granting it. In other words, Courts of Law cannot grant the relief for the mere asking on the part of the defendant. There must be legal basis for the request and corresponding legal basis for granting it.”
I am of the firm view that the trial Court was wrong in striking out the Appellants’ suit that was filed when the Federal High Court Rules 2009 had come into effect. The sole issue formulated by the Appellants is resolved in their favour and against the Respondents. For the reasoning I have set out herein above, this appeal shall be and it is hereby allowed. The case is remitted to the Chief Judge of the Federal High Court to be assigned to a Judge other than Nyako J. for trial.
The Respondents jointly and severally shall pay to the Appellants, the sum of N600,00.00 as costs of prosecuting this appeal.