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

LawGlobal-Hub Lead Judgment Report

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.

The prayers sought for by the applicant are categorised in three parts with the first two relating to the decisions dated 22nd January and 7th April, 2003, respectively, whilst the third category is an omnibus general prayer.

As a prerequisite to his main submission, the learned senior counsel to the respondent argued against the competence of the entire motion. His ground of contention was predicated on the failure of the applicant to first seek for extension of time within which to seek leave to apply as an interested party. The senior counsel cited the provision of order 3 rule 3(3) of the Court of Appeal rules, which same states as follows:

“Where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the refusal.”

The provision of section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria also reproduced states:-

“243. Any right of appeal to the Court of Appeal from the decision of the Federal High Court or a High Court conferred by this Constitution shall be-

(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the high Court or the Court of Appeal at the instance of any person having an interest in the matter…”

(Italics is for emphasis)

Further still and in the case of Re Madaki (1996) 7 NWLR (Pt.459) 153 at 163 -164 their Lordships of the apex court per Uwais, CJN delivering the lead judgment succinctly laid down the principle guidelines on a proposition on whether application for leave to appeal as an interested party has a time limit. At page 164 paragraphs A – B, his Lordship had the following to say:-

“Neither the Constitution nor the Court of Appeal Act or the Court of Appeal Rules prescribe any period within which an interested party may bring application for leave to appeal as “a person having an interest in the matter.”

So that when the applicant/respondent brought his application in the court below seeking:

“(1) Extension of time within which to apply for leave to appeal pursuant to sections 221 and 222(a) of the Constitution of the Federal Republic of Nigeria 1979, against a portion of the decision given by Ibadan High Court on 14th day of July, 1988,” he misconceived the procedure and acted wrongly to have asked for extension of time to seek leave to appeal as an interested party.”

It is apparent and obvious therefore that an interested party by the operation of S. 243(3) of the Constitution does not require a prayer for extension of time which does not run for a person who is merely seeking to appeal as a party interested. Without much ado and with due respect to the learned senior counsel for the respondent therefore, the argument in that respect does not in my humble opinion hold ground but that which is overruled. In otherwords, it is my view that the applicant is properly before the court and in respect of his application as rightly submitted by his learned counsel.

By the provision of order 3 rule 3(3) of the Court of Appeal Rules, it provides for where an application has been refused by the court below, which same may also be made to the Court of Appeal within fifteen days after the date of refusal. Order 3 rule 4 also empowers the court to enlarge the time provided by the rules for the doing of anything to which the rules apply. In the instant case, the applicant’s application for leave to appeal against the decision of the court below as an interested person was refused on 7th April, 2003, Paragraphs 31 and 33 of the affidavit in support of motion is evidenced and also Exhibit LA – 4 in the further affidavit filed on 24th July, 2003.

The paramount relevant factor and needing determination at this juncture is whether or not the applicant is an interested party in the matter at hand and therefore deserving the consideration and exercise of discretion in favour of his application. The learned senior Mr. Akerele for the respondent submitted in the negative and labelled the applicant, a busy-body. He further submitted that in the circumstance he is therefore not a person interested and deserving to be granted leave to appeal the decision of 22nd January, 2003 as a person interested. The learned respondents’ counsel proffered a number of reasons in support of his contention of who an interested party is. One of such was a test of whether or not the person could have been made a party to the proceedings. The authority of Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt. 10) p.806 at 815 was cited in support. Also, Nigerian Bottling Company Plc v. Osofisan (2000) 10 NWLR P. 675 p. 370. That having regard to the nature of the proceedings before the Federal High Court, the applicant could not have been made a party. His argument was vindicated on the reason that the proceedings before the Federal High Court was a special one for the merger of both respondent companies brought under section 100 of the Investments and Securities Act, 1999. That it is not the intendment of the Legislature by the statutory provisions that a minority shareholder in a public company, who is not in support of a merger of his company and another company, should apply to join the proceedings merely to oppose the merger.

Furthermore, the learned senior garnered that an applicant seeking leave to be joined as a party to a proceeding must show legal interest not a sentimental interest in the subject matter of the proceedings; the authority of Nigerian Bottling Company Plc v. Osofisan supra was cited to buttress his submission. That the applicant has not averred that the decision he is seeking to appeal has denied him of his share holding. That he has not shown the decision having removed him as a director of the 1st respondent company. That all the facts alleged in the affidavit in support of the motion show merely a sentimental interest in the subject matter of the proceedings as opposed to a legal interest.

Further still that the proposed grounds of appeal exhibited to the applicant’s application do not in any way show how his personal interest would be secured by the appeal. Reference was made to the acid test in the case of Ojukwu vs Governor of Lagos State (supra) wherein it was made clear that an application for leave to appeal as an interested party is synonymous with an application for joinder.

That the applicants proposition can not stand in the light of the principles laid down in Ojukwu v. Governor of Lagos State (supra), and consequent to which he should be denied leave to appeal as an interested party.

By the provision of section 243(a) of the 1999 Constitution reproduced supra, there are two categories of persons who can appeal to the Court of Appeal from the decisions of a High Court in civil proceeding and these are:

(a) a party to the proceeding.

(b) a person having an interest in the matter; who certainly by virtue of his category requires leave of the court to maintain an appeal.

The learned applicant’s counsel on his submission argued that for one to qualify for leave to appeal as an interested person, he must be or likely to be affected or must have been deprived of something, which he is either enjoying presently or would otherwise have been entitled to. The authority he cited in support is the case of Societe Generale Bank Ltd v. Afekoro (1999) 11 NWLR (Pt. 628) 521. The counsel affirmatively reiterated that the applicant has been affected to the extent that a company of which he is a member has been merged with another, and by reason of that fact, his right to dividends which is the return on his investment is no longer dependent on the performance of the Board of the Company of which he was a member before the merger. Further reference was also made to the case of Obingwa L.G. v. Muoma (2001) 18 NWLR (Pt. 744) 71 and urged the court to apply the principle enunciated therein and hold that the applicant has an interest in this matter. The learned counsel further opined that there is no time limit for seeking leave to appeal as interested person. The authority In Re Madaki (supra) is well settled. Learned counsel urged us therefore to uphold the application as prayed.

With reference to the decision in the case of Societe Generale Bank Ltd v. Afekoro (supra) their Lordships of the apex court per Ogundare J.S.C., of blessed memory, in a well considered judgment in which a number of authorities were reviewed arrived at the following meaning of the expression on page 539 and said:-

“On the authorities, therefore, the expression “person having interest” is synonymous with person aggrieved”.

And a person aggrieved is a person who has suffered a legal grievance, a person against whom a decision has been given which has deprived him of something or refused him something or affected his right or title to something.”

Further related authorities substantiating the same principle of law are the cases of :-

(1) Jadesimi v. Okotie – Eboh In Re Lessey (1989) 4 NWLR (Pt. 113) 113 at 123.

(2) In Re Ugadu (1988) 5 NWLR (Pt. 93) 189 at 203.

(3) In Re Chief F.R.A. Williams (No.1) (2001) 9 NWLR (Pt.718) 329 at 340 and 342.

(4) Akande v. General Electric (1979) 3 LRN 187 at 192.

It is obvious that the conceptual underlying interest of the applicant is determinant upon whether or not he is in fact affected by the merger of the two respondents. In other words, a readily question apt to ask is whether the applicant has been deprived of something following the merger of the two companies?

On the depositions at paragraphs 3, 4 and 8 of the main affidavit in support of the application it is not controverted that the applicant is not only a share holder of Agip Nigeria Plc but the Chairman of the Board of Directors of the Company, up to 22nd August 2002.

The applicant is also the largest single Nigerian Shareholder of the Company with 5802050 units of ordinary shares. Also in his capacity as Director/Chairman of the said company, he was deprived of the opportunity of expressing his opinion on the take over bid. Further reference can also be made to the reply to counter affidavit of the respondents at paragraph 2 sub paras. (ii) and (iii) which same was deposed to on the authority of the applicant to the effect that:

“(ii) He retained his Directorship of the 1st respondent until the merger of the two companies when the Board of the 1st respondent was dissolved and the 2nd respondent took over all the assets of the 1st respondent.

(iii) By reason of the merger of the two companies, he had not only lost his Directorship of the 1st respondent but also its membership as all its members were compelled to take up the Shares of the 2nd respondent.

The respondent at paragraph 5 of their counter affidavit denied paragraphs 5, 6 and 7 of the affidavit in support. The said paragraphs questioned the purported take over bid transaction relating the acquisition of share holdings of Agip Petroli International B. V. in Agip Nigeria Plc under a sale and purchase agreement. In my humble opinion, the said depositions relate to the question whether or not the applicant is an interested party as envisaged by the application at hand. The same deduction also applies to paragraphs 17, 18 and 19 of the main affidavit which did not in any way deny the participation of the applicant in the Board of Directors meeting held in Rome wherein his cautionary contributions were ignored and consequent to which the deposition at paragraph 8 of the counter affidavit did not also address.

By paragraphs 26, 28 and 29 of the main affidavit in support of the motion, the applicant was refused his application to the court below for an order joining him as a party to the suit. On the authority of Obingwa L.G. v. Muoma supra, a Court of Appeal decision, it was held that a person who has applied for joinder in a suit but whose application has been refused by the court is entitled to leave to appeal against the final judgment that may ultimately be given in the suit, as a person having interest in the matter. Therefore, in the said authority under reference for instance Ogebe JCA at pages 81 – 82 had this to say among others:

“…even though the appellant has an interest to pursue the matter of the refusal of his application for joinder, it cannot be called a party within the meaning of Section 222 (a) of the 1979 Constitution to be entitled to a right of appeal without leave. At best it could only be a person having an interest in the matter, and for such a person, leave of the High Court or leave of this court to appeal is mandatory”.

The respondents’ counsel had submitted on the relevance of the applicable test of illegibility thus entitling the applicant as a party especially having regard to the nature of the proceedings before the Federal High Court relating to merger of the respondent companies which is brought pursuant to section 100 of the Investments and Securities Act, 1999; the provision the learned counsel argued contemplated that the parties are the merging companies.

By the notice of appeal against the decision of 22nd January, 2003 marked exhibit LA – 3 in the further affidavit of the applicant filed on the 24th July, 2003, as rightly submitted by the learned applicant’s counsel, the argument advanced by the respondent is the subject matter of the complaint in ground one of the said notice of appeal. In other words the ground presupposes the joinder of the applicant as a respondent and therefore complains of an error in law for the failure for doing so.

It is settled law that a court hearing an interlocutory application has no jurisdiction to make any pronouncement which has the effect of determining the issue at stake in the substantive matter. In other words, a court hearing an interlocutory application must avoid making any findings or determination which may prejudge the substantive matter. The following authorities are relevant and in support.

1. Ojukwu v. Government of Lagos State (1986) 3 NWLR (Pt.26) 39 at 45.
2. Kotoye v. Saraki (1994) 7 NWLR (Pt.357) 414 at 444 and 462 E.F.
3. Akapo v. Hakeem-Habeeb (1992) 6NWLR (Pt.247) 266 at 287 G.
4. Fasakin v. Fasakin (1994) 4 NWLR (Pt. 340) 597 at 622-623.
5. NNSC v. Sabana (1988) 2 NWLR (Pt. 74) 24 at 40.
6. Agbakoba v. Director SSS (1993) 7 NWLR (Pt. 305) 353 at 362 .

In Agbakoba v. Director S.S.S (supra) for instance, Tobi J.C.A. (as he then was) warned of the danger inherent in determining the substantive issues in a matter at an interlocutory stage. At page 362 therefore his Lordship had this to say among others:

“Learned counsel for the respondents posed two issues for determination in this motion. With respect none of the issues arise for determination at this interlocutory stage. They are issues which arise in the main appeal. We are not there yet. We cannot therefore take those issues now. We will be jumping the gun by doing so, and we can get “hurt” in the process … The law is elementary that a court of law should refrain from adjudicating and determining the merits of the matter at an interlocutory stage. See Col. Akilu v. Chief Fawehinmi (No.2) 19892 NWLR (Pt. 102) 122 at 175; …

A court of law, should on no account, deal with the live issue in the appeal at the interlocutory stage….since the Judge will be left with nothing to determine at the appeal stage, he should not take that precipitate step…”

(Italizing is mine).

The ultimate effect in my humble opinion is pre-emptive of the substantive suit and therefore negating the need and purpose of record evaluation by the Appeal Court or burden of proof by the trial court as the case may be. As rightly submitted by the learned applicant’s counsel the arguments advanced in the respondents’ address on the import of section 100 of the Investments and Securities Act 1999 are therefore premature at this stage.

On the need for the applicant to show legal and not sentimental interest as contemplated by the learned respondents’ counsel, it is my opinion that having regard to the cumulative effect of the respondents’ counter affidavit, same had failed to depose that the applicant is a minority shareholder in the 1st respondents’ company. This is more so especially in the light of paragraph 4 of the affidavit in support wherein the applicant deposed his largest single Nigerian shareholder of the Company with 5,802,050 units of Ordinary Shares of 50K each.

Further, and by paragraph 3 also deposed in support, the applicant was not only a shareholder but a Chairman of the Board of Directors of the Company up to 22nd August, 2002. The seat had since been relinquished. There is no counter affidavit refuting the depositions.

Again on the nature of the order made by the court below in sanctioning the merger of the two companies the learned respondents’ counsel in his arguments firmly reiterated that same amounted to a consent judgment and to which section 241 (2)(c) of 1999 Constitution applies. The said counsel went further to distinguish between leave to appeal a consent judgment from leave to appeal a decision as a party interested, which he submitted is entirely different one from the other. That by the ruling of 22nd January, 2003 being a consolidated decision relating to three different applications, the part thereof where the court approved the scheme of merger of both respondent companies was a consent judgment, which the counsel argued, the applicant cannot appeal against, without obtaining leave of court.

Both counsels to parties to substantiate their arguments cited the authority in the case of Woluchem v. Wokoma (1974) 3 SC 153 wherein their Lordships of the apex court at pages 166 and 168 had the following to say among others:

“In order to have a consent judgment, the parties must be ad idem as far as the agreement is concerned; and the terms of settlement must be filed in court. When the court makes an order based upon such terms of settlement, there emerges a consent judgment, from which the parties could appeal only by leave of the court.”

(Italizing is mine for emphasis).

By the very phrase “when the court makes an order based upon such terms of settlement” the intentional deduction therefrom in my opinion, precludes an order made in the exercise of the discretion of the court and upon an application of settled principles of law which cannot amount to a consent judgment as rightly submitted by the learned applicants counsel. In other words and for instance, at page 23 of the Ruling of the lower court dated 22nd January, 2003 which is marked exhibit LA – 1A in the 2nd further affidavit filed on 23rd February 2004, in support of this application, the learned trial judge said at lines 8 – 15.

“There is no doubt that the court has broad discretion in approving or refusing to sanction the scheme as presented in any particular case. Nevertheless, I am of the view that such an exercise of discretion must be within the confines of the law. Again, I believe the principles guiding the courts in the exercise of such discretion have been spelt out in a plethora of cases as well as in statutes in particular our investment and securities Act 1999.”

The learned trial Judge in his determination considered a number of related authorities following which he concluded and thereby sanctioned the merger arrived at. As rightly submitted by the applicant’s counsel, it is obviously clear from the deduction that the learned trial Judge had the option of refusing to sanction the merger but he did not. The conceptual intendment of a consent order does not envisage an exercise of discretion on the part of the court. At least this cannot be deduced from the guiding principles to be followed in the consideration as spelt out by their Lordships in Woluchem v. Wokoma reproduced supra.

In my view therefore and contrary to the submission by the learned respondents’ counsel, the decision of the lower court in approving the scheme of merger of both respondent companies was not a consent judgment within the contemplation of section 241 (2)(c) of the 1999 Constitution. The authority of Woluchem v. Wokoma (supra) and under which the respondents’ counsel seeks leverage does not support his case.

In the light of the foregoing deductions it is my humble opinion that the applicant in this circumstance had made out a case as a person having an interest in the matter and is so properly before the court.

Having arrived at the said conclusion therefore, I make an order granting leave to the applicant to appeal the said decision of the Federal High Court dated 22nd January, 2003 in suit No. FHC/L/CS/961/2002 being a person having an interest in the matter.

With the order having thus made in favour of the applicant per his prayer No.3 of the motion paper, it is pertinent to mention that the applicant is now on the same pedestal as a party who was so properly before the court from the inception of the suit. It is necessary, though elementary, to recall, that prayer No.4 on the application had been by order of court dated 12th May, 2004 amended to read “An order enlarging the time within which the appellant/applicant may appeal the said decision.”

The said prayer 4 should therefore be taken together and along with 7, 8 and 9 which largely deal with an extension of time and leave to appeal, which is provided for by order 3 rule 3(3) of the Court of Appeal Rules as follows:

“Where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the refusal.”

The applicant’s application to the lower court for leave to appeal the decision of 22nd January, 2003 as a person interested was refused on 7th April, 2003. The applicant did not file a similar application for leave until 15th July, of the said year, a period of about three months after.

It is trite law that an application for extension of time to appeal has to satisfy the court of two conditions: while one is to show good and substantial reasons for failing to appeal within time, the other is whether the grounds of appeal disclose an arguable appeal. The learned respondents’ counsel argued and submitted that the applicant had not shown good and sufficient reasons for failing to file his applications for leave to appeal within time. The counsel cited Ibrahim v. Nathaniel Gbaa (1996) 8 NWLR (Pt. 467) P.497 at 506. The applicant in that case had obtained the ruling of the court against which they were seeking to appeal. Their Lordships of the Court of Appeal held that the applicants did not therefore have to wait for the compilation of the record of proceedings before filing their appeal.The same also applied to their application for departure from the rules while they have not filed their notice of appeal.

With the greatest respect to the arguments by the learned respondents’ counsel, the case under reference is remarkably distinguishable from the one in issue at hand. In other words, while the applicants in that case were parties to the initial suit and had obtained a copy of the ruling, different situation applies at hand where the applicants were still seeking leave as interested parties. Furthermore, by the affidavit in support of the motion in issue, particularly paragraphs 29, 30, 33 and 34 reveal that the two notices of appeal against the two decisions in this matter were both filed 22nd January, and 17th April, 2003 with the rulings having been delivered on the 22nd January and 7th April, 2003 respectively. The evidence of filing were evident per exhibits LA-2 and LA-5 attached to the further affidavit and which are not controverted. A similar circumstance was not the case in Major Shehu Ibrahim v. Nathaniel Gbaa’s case supra, which authority does not hold relevant in support of the arguments by the learned respondents’ counsel.

From the foregoing deductions therefore, the depositions at paragraphs 35 and 36 of the affidavit in support of the motion would have held against the applicant if and only if he had been an initial party to the suit and not otherwise. It follows also that the contention by the respondents’ counsel in accusing the applicant by embarking on a personal voyage of seeking for Certified True Copy of every document cannot be sustained, having regard to the provisional Interpretation of order 3 rule 3(7) of the Court of Appeal Rules cited.

Relevant authorities on the principles which should therefore guide the court in an application seeking leave and enlargement of time to appeal are clearly re-iterated in the decisions of:-

(i) Re Adewumi (1988) 3 NWLR (Pt. 83) 483.

(ii) Cooperative v. Ogwuru (1993) 3 NWLR (Pt. 284) 630

It is trite and required of the applicant not only to adduce good and substantial reasons for the delay in appealing, but must in addition show that the grounds of appeal disclose an arguable appeal.

It is relevant to further re-iterate on the onset that the duty placed upon the applicant at this stage is not requiring him to show that he would succeed on the two notices of appeal. All that is relevant and important is for him to show that the grounds of appeal are not frivolous or manifestly unsupportable.

With regard to the two notices of appeal they both raise substantial points of procedural and substantive laws. For instance with reference to the notice of appeal against the decision of 22nd January, 2003, an important point of procedure as to the mode of bringing an application for an order sanctioning a scheme of merger has been raised in ground three. Ground No four also raises an issue as to the illegality of the “take over” of Agip Nigeria Plc by Unipetrol Nigeria Plc and that by reason of that fact the court below ought not to have sanctioned the merger without resolving the issue of illegality. Another further issue raised relate to the applicable principle in applications for stay of proceedings in cross-actions.

The notice of appeal against the decision of 7th April, 2003, relates to the scope of the reliefs afforded by section 100 (3)(a) – (f) of the Investment and Securities Act 1999 which has been raised in ground two of the Notice of Appeal. A further issue at ground one of the notice also raised the question as to who can apply for reliefs under section 100(3) of the 1999 Act.

In my humble opinion and from the circumstance of the case, I hold that the applicant had made out a case warranting the exercise of discretion of this court in granting leave and extension of time within which to appeal, in this matter as sought for on his motion papers. Consequently therefore, and in respect of prayers 4, 7, 8 and 9 of the applicant’s motion paper, time is extended to today within which the appellant/applicant can appeal the decisions of the Federal High Court in suit No FHC/L/CS/961/2002 delivered on the 22nd January and 7th April, 2003.

In respect of the latter decision however, the applicant is in addition granted leave to appeal against the said ruling on grounds other than the grounds of law alone.

Further still and by his prayers 6 and 10 of the motion paper, the applicant is seeking for deeming orders from the court in respect of the two notices of appeal so as to regularize the filing of the said notices which same was done before leave was obtained. In support and to substantiate the credibility of his prayers, the applicant relied on the authority of the case of Erisi v. Idika (1987) 4 NWLR (Pt.66) 503. The notice of appeal in that case raised issues of mixed law and facts by reason of which leave of court was required to maintain the appeal. The Court of Appeal subsequently granted the appellants application for leave to appeal and also deemed the notice of appeal already filed as having been properly filed.

When the appeal came up in the Supreme Court, a preliminary objection was raised by the respondent on the ground that the notice of appeal was incompetent because it was filed before the grant of leave and that the deeming order of the Court of Appeal was not capable of giving life to the otherwise incompetent Notice of Appeal. Nnamani, JSC in delivering the lead judgment of the Supreme Court had the following to say among others at pages 511 – 512 while considering the inherent power of the court:

“It seems to me that the Court of Appeal had the power under its inherent jurisdiction to make the consequential order in the terms as per the drawn order.

“the notice and Grounds of Appeal exhibited with the motion paper is deemed to have been filed on 28/2/86.”

Be it remembered that these notice and grounds of appeal were at all material times before the Court of Appeal having been annexed to the motion papers praying for leave to appeal. If the consequential order was not made, the defendants/appellants would have prepared another notice and grounds of appeal filed same in the Registry and probably paid fees a second time…”

In the same vein in my humble opinion, and in the matter under consideration in this application, the refusal of same is synonymous to the applicant having to prepare another notice and ground of appeal, while similar exists before us and attached to the motion papers. That, in the language per the pronouncement of his Lordship Nnamani, J.S.C. in the case of Erisi v. Idika (supra),

“…would be reducing the process of court to mere mechanical exertions completely oblivious of any consideration for the much talked about speedy administration of justice.”

Much more, and on the inherent power of the court to make a deeming order Oputa J.S.C. in his contribution in the same authority (supra) at page 518 said:

“In this case the Court of Appeal had not merely statutory but even constitutional jurisdiction under Section 213(3) of our 1979 Constitution to grant leave to appeal on grounds of fact or mixed law and fact. Now in the exercise of that constitutional jurisdiction has it any inherent jurisdiction to make a consequential order regulating the proceedings by deeming the notice filed as properly filed? Under Order 2 rule 28(5), Supreme Court Rules 1985:

‘Order 2 rule 28 – 5

If leave to appeal is granted…by the court below the appellant shall file a notice of appeal.’

This simply means that in this case the consequential order of the court below has given a de jure recognition to what the appellants did defacta on the 28th February, 1986 that is taking their Notice of Appeal to the Registry of the court and paying the requisite filing fees. Secondly, in Abaye v. Offili and Ors. (1986) 1 S.C. 231 at p.278: (1986) 1 NWLR 134 at p. 148 in a lead judgment, my learned brother Uwais, J.S.C. held:

There is no doubt that the Court of Appeal, being a Superior Court of record under the 1979 Constitution of Federation of the Republic of Nigeria, has sufficient powers to make the consequential order. These powers are derived from different sources …”

A further related authority on the same principle is the case of Akeredalu v.Akinremi (1986) 2 NWLR (Pt. 25) 710 at 726 and 734.

In my humble opinion and based on the foregoing deductions arrived at, I hold that the applicant should also succeed on his prayers 6 and 10 of the motion papers as prayed. Consequently, an order is therefore made deeming as properly filed the notices of appeal dated and filed by the appellant/applicant on the 22nd January and 17th April against the decisions of Sanyaolu J delivered on the said same 22nd January and 7th April all in the year 2003 respectively and in suit no. FHC/L/CS/961/2002. The said notices of appeal are both attached and exhibited to the further affidavit in support of appellant’s/applicant motion dated 15th July 2003 and marked as exhibits LA – 2 and LA – 5 accordingly.

Prayer No.5 of the motion seeks for an order granting leave to the appellant/applicant to raise new points on appeal as contained in grounds 3 and 4 of the Notice of appeal dated 22nd January, 2003 against the said decision of the same date.

Needless to say that with the applicant not being a party on the onset at the lower court, it is not surprising that he is now raising an objection against the court’s jurisdiction and the order sanctioning the merger of the two companies as contained per grounds 3 and 4 of his notice of appeal against the decision of 22nd January, 2003.

However, in the absence of the respondent adducing any arguments against the said prayer No.5, it is an indication that he does not object to its being granted. The same deduction also applies to the general prayers 11 and 12, wherein the consolidation of the two appeals as rightly submitted by the learned applicant’s counsel would obviously save costs as well as time of parties and the court. This is especially where the two appeals arise out of the same matter and between same parties as it were.

In the decided authority of NASR v. Complete Home Enterprises (Nig) Ltd (1977) N.S.C.C. 244 at 230 cited by the learned applicant’s counsel, the principle is well enunciated that the purpose of consolidation is to save costs and time, where common question of law or fact would arise in the matter bearing sufficient importance in proportion to the rest of the subject matter of the action, to render it desirable that the whole should be disposed of at the same time.

From the arguments of counsel, the two appeals are interrelated wherein the decision of 7th April, 2003 arose out of that of 22nd January, 2003. The joint disposal of the two appeals would, as rightly argued by learned applicant’s counsel, in my humble opinion, be appropriate.

Further still and with the deeming order in filing the notices of appeal having been granted supra, the two appeals therefore become ripe for the records of appeal to be prepared and transmitted to this court. Prayer 12 in that respect therefore becomes appropriate also for the purpose of saving time.

In consequence, I am of the firm view that the applicant in this application had also made out arguments for the exercise of discretion in his favour in respect of prayers 5, 11 and 12 per his motion papers under consideration and in respect of which I make orders as follows:-

That leave is granted the appellant/applicant to raise new points on appeal as contained in grounds 3 and 4 of the Notice of Appeal dated 22nd January, 2003 against the said decision of the same date.

A further order is also made and consolidating the two appeals filed by the appellant/applicant vide Notice of Appeal dated and filed on 22nd January, 2003 against the decision of the court below delivered on the same date and Notice of Appeal dated and filed on 17th April, 2003 against the decision of the said same court delivered on 7th April, 2003 in suit No. FHC/L/961/2002.

An order of departure from the rules of this court is also made in favour of the appellant/applicant to compile the records of appeal to be used for the consolidated appeals, and treating the bundle of documents already compiled and marked “OTUNBA A.O.” as the record of appeal in this matter. A consequential order is also made that the respondents are free to file any further documents as seem appropriate.

In respect of the order of accelerated hearing sought for, in prayer 13, same in my opinion may not be necessary in the circumstance but rather that parties should follow the natural cause of events.

For purpose of recapitulation and summary of the orders made consequent to the applicant’s application I therefore make the following orders as follows:

(1) With the withdrawal of prayers 1 and 2 on the onset, same were accordingly struck out.

(2) In respect of prayer no. 3, leave is granted to the appellant/applicant to appeal the said decision of the Federal High Court, Lagos dated 22nd January, 2003 in suit No. FHC/L/CS/961/2002 being a person having an interest in the matter.

(3) Prayers 4, 7, 8 and 9 are also granted wherein time is extended to today within which the appellant/ applicant can appeal the decision of the Federal High Court in suit No. FHC/L/CS/961/2002 delivered on the 22nd January and 7th April, 2003. The applicant in addition is allowed to appeal the said ruling delivered on 7th April, 2003 on grounds other than the grounds of law alone.

(4) In respect of prayers 6 & 10, an order is further made deeming as properly filed the notices of appeal dated and filed by the appellant/applicant on the 22nd January and 17th April against the decisions delivered on the same January and 7th April all in the year 2003 respectively and in suit no. FHC/L/CS/961/2002.

(5) A further order is also made in respect of prayer 11, and consolidating the two appeals filed by the appellant/applicant vide notice of appeal dated and filed on 22nd January, 2003 against the decision of the court below delivered on the same date and notice of appeal dated and filed on 17th April, 2003 against the decision of the said court delivered on 7th April, 2003 in the said suit No. FHC/L/CS/961/2003.

(6) On prayer no.12, an order of departure from the rules of this court is made allowing the appellant/applicant to compile the record of appeal to be used for the consolidated appeals and treating the bundle of documents already compiled and marked “OTUNBA-A. O” as the record of appeal in this matter. The respondent is also free to file any further documents as seem appropriate.

(7) Finally and in respect of prayer 13, same is unnecessary and refused.

The appellant/applicant therefore succeeds on his motion paper as per the orders made supra. I would also make an order of N3,000 = costs to the respondents.

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Other Citations: (2004)LCN/1636(CA)