Oluseyi Abiodun Makinde & Ors V. Oron Engineering Services (U.k.) Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of Tijjani Abubakar J of the Federal High Court Lagos in Suit No FHC/L/CS/1111/2006 delivered on the 25th day of July 2007 granting the Respondent leave to amend its petition and amongst other things to substitute the initial verifying affidavit attached to its Petition with a fresh verifying affidavit.

On the 22nd of December 2006, the Respondent filed a petition in the Federal High Court Lagos Division praying the Court to wind up Orion Project Services Nig. Ltd, (the 4th Appellant Company) pursuant to Section 408 (a) of the Companies and Allied Matters Act 1990. The petition was supported by a verifying affidavit deposed to by one Taiwo Adesina, a Legal Practitioner in the Law Firm of the Respondent’s Solicitor.

On the same 22nd December 2006, the Federal High Court, pursuant to a Motion Exparte filed by the Respondent ordered that the shareholders of the 4th Appellant maintain the status quo pending the hearing and determination of the Motion on Notice. It is important to point out that the two shareholders of the 4th Appellant are the 3rd Appellant, a company incorporated and doing business in Nigeria and the Respondent, a Company incorporated and based in the United Kingdom.

The 1st and 2nd Appellants are not shareholders but Directors representing the 3rd Appellant in the Board of the 4th Appellant.

The Respondent subsequently commenced Contempt proceedings against the 1st and 2nd Appellants for alleged disobedience of the Court order to maintain the status quo as a result of which the Appellants filed series of Applications. On 7th February 2007, the Appellants filed a Motion on Notice consolidating all their previous applications into one application which amongst other things sought to strike out the Respondent’s petition for want of jurisdiction.

The Respondent then filed a Motion dated 20th February 2007 seeking to amend its Petition by amending the Parties’ clause to reflect the 4th Appellant as the 1st Petitioner; substitute the initial verifying affidavit deposed to by Taiwo Adesina, the Legal Practitioner with a new verifying affidavit deposed to by Mr. Keith Brown, the Managing Director of the 4th Appellant; and to extend the time within which the fresh verifying affidavit could be filed.

On the 4th of July 2007, when the matter came up for hearing, the Appellants’ Counsel requested the Court to take the Appellants’ objection challenging the jurisdiction of the Lower Court first before proceeding to hear any other application. The Lower Court refused and took the Respondent’s application for amendment first. At the conclusion of arguments, the court granted all the prayers of the Respondent.

The Appellants, dissatisfied with the Ruling of the Trial Judge filed a Notice of Appeal containing 2 grounds of appeal, out of which they distilled 2 issues for determination as follows:-

1. Whether the Learned Trial Judge should have taken the Appellants’ Motion dated the 7th of February 2007 first and ruled one way or the other before taking the Respondent’s Motion dated the 20th of February 2007, to amongst other things amend the petition.
2. Whether the Learned trial judge was right to have proceeded to grant the prayers sught ont he Respondent’s Motion dated the 20th of February 2007 in view of the fundamental issues raised by the Appellants to the competency of the Petition and the locus standi of the Respondent as per the Appellants’ Motion dated the 7th of February 2007.

The Respondent also formulated two issues for determination as follows:-

1. Whether the Learned Trial Judge correctly-exercised his discretion in hearing and determining the Respondent’s Motion dated 20th February 2007 before the Appellants’ Motion dated 7th February 2007.
2. Whether the Learned Trial Judge correctly exercised his discretion in granting the Respondent’s aforesaid application dated 20th February 2007.

The issues formulated by the Appellants and the Respondent are the same in substance. I will therefore adopt the 2 issues formulated by the Appellants in the determination of this appeal.

APPELLANTS’ ARGUMENTS

ISSUE ONE

Learned Counsel for the Appellant relying on the cases of Nya v Edem (2005) 4 NWLR Pt 917 345 at paras 370 paras C-E and Oyibo v Toluhi (1995) 7 NWLR (Pt.408) 480 @ 493 submitted that jurisdiction is a threshold issue which should be dealt with at the earliest opportunity when raised in any proceeding. Counsel submitted that once there was an application challenging the jurisdiction of the Court, the only jurisdiction the Court had was the jurisdiction to hear the application challenging its jurisdiction first and rule one way or another. Counsel referred to African Press of Nigeria v Federal Republic of Nigeria (1985) 1 NWRL Pt.6 137 at 165; Crown Merchant Bank Ltd v Leadway Ass. (1997) 11 NWLR Pt.529 405 @ 412 and further submitted that when an action is not competent or properly constituted, the Court is robbed of the jurisdiction to entertain same and must therefore deal with the objection challenging its jurisdiction first. He relied on Ofia v Njem (2006) 11 NWLR (Pt.992) 652 @ 663.