Otunba Adekunle Ojora V. Agip Nigeria Plc. & Anor (2004)

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OGUNBIYI, J.C.A.

The motion on notice in this matter is dated and filed on the 15th July, 2003 and also brought pursuant to the following provisions:

1. Sections 242 (1) and 243(a) of the 1999 Constitution.
2. Section 25(4) of the Court of Appeal Act.
3. Order 3 Rules 3 and 4(1) of the Court of Appeal Rules and
4. Inherent jurisdiction of the Court.

The initial application sought and prayed for 13 orders but same, consequent to a withdrawal and striking out of prayers 1 and 2 on the 12th May, 2004, were reduced to 11.

The application is supported by 39 paragraphs affidavit filed on the said 15th July, a further affidavit filed on the 24th July, both 2003 and also a 2nd further affidavit filed on the 23rd February, 2004. The respondents on their part filed a 9 paragraph counter-affidavit on the 14th April, 2004, whilst the applicant filed a reply to the counter-affidavit on the 24th May, 2004.

Pursuant to the order made by this court on the 12th May, 2004, both parties filed their written submissions dated and filed 25th May, and 21st June, 2004 respectively. The applicant further filed a reply to the respondents’ written submission dated the 28th June, 2004.

On the 28th September, 2004 counsel adopted their briefs of arguments with the applicant’s learned counsel Mr. Nojim Tairu urging the court to exercise its discretion in granting the prayers sought, while Mr. Ademola Akinrele (SAN) vehemently argued in favour of refusing same.

It is pertinent to mention that this application emanated from the two decisions of the Federal High Court dated 22nd January, and 7th April, 2003.

It is also the consensus of both patties particularly where the respondents’ counter-affidavit did not controvert paragraphs 3 and 4 of the affidavit in support of the motion that:

“3 The applicant is a share holder of Agip Nigeria Plc and the Chairman of the Board of Directors of the Company up to 22 August 2002…

4. Agip Nig. Plc is a public Limited liability company with 60% of its issued capital held by Messrs Agip Petroli International B.V. (an Italian Company) until recently whilst the remaining 40% is held by Nigerians. The Applicant is the largest single Nigerian Shareholder of the Company with 5802050 units of ordinary shares of 50K each.”

Per the said ruling dated 22nd January, 2004 attached to the 2nd further affidavit and marked exhibit LA – 1A, the Federal High Court delivered a consolidated decision on three separate applications, wherein it refused both the applicant’s application and the shareholders’ application but granted the joint petition, by – sanctioning the scheme of merger between the two companies. One of such applications was filed on the 24th October, 2002 in suit No.FHC/L/CS/961/2002 seeking for two prayers for ajoinder as a respondent party and also staying all other actions and proceedings in respect of the proposed merger between the two applicants in the substantive suit pending the final determination by the Supreme Court in Appeal No.SC/351/2002 between the two applicants to the merger. The two other sets of applications were filed on the 19th day of December, 2002, in the same FHC and bearing the same suit No. stated supra by two separate sets of applicants. The first was an application for the joinder of three shareholders of AGIP NIG. PLC. Whilst the other application was by way of a joint petition filed by the two companies, that is to say AGIP NIG PLC and UNIPETROL NIG PLC praying the court to sanction the scheme of merger between the two companies pursuant to section 100 of the investment and Securities Act. These are all evidenced at paragraphs 26, 27 and 29 of the applicant’s affidavit in support which facts are not controverted by the respondent.

Being dissatisfied with the decision of the Federal High Court the applicant appealed to the Court of Appeal on the same 22nd January, 2003. His notice of Appeal marked exhibit LA-2 as exhibited in the further affidavit filed on the 24th July, 2003 is evident and clearly specified at paragraph 30 of his affidavit in support. Consequent to the foregoing, the applicant on the 28th January, 2003 applied to the court below seeking inter alia leave to appeal the decision of 22nd January, 2003 as a person having an interest in the matter.

That the applicant also sought from the court below some ancillary reliefs pursuant to the provisions of section 100 of the Investments and Securities Act particularly with respect to the preparation and delivery to the Corporate Affairs Commission of the Annual Return of Agip Nig Plc for the year 2003 and payment of Directors fee to him for the year 2002. That by its ruling per exhibit LA – 4 in further affidavit filed 24th July, and delivered on the 7th April, 2003, the prayers sought for were refused.

Again, being dissatisfied with the decision of the court below on the ancillary reliefs sought in the application supra, the applicant filed a notice of appeal against same on the 17th April, 2003 – marked exhibit LA – 5 in the said further affidavit of 24th July, 2003. It is again expedient to restate that the facts poised to above are all borne out in the affidavit in support of the applicant’s motion at paragraphs 30, 31,32,33 and 34 and to which the respondent do not object.

It is against the back ground of all said and done as spelt out supra that the applicant, by his motion the subject matter of this application, is seeking the leave of this court to appeal as an interested person against the said two resentful decisions of the Federal High Court as spell in the motion paper.