Shinning Star Nigeria Ltd. & Anor. V. Aks Steel Nigeria, Ltd. & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

FRANCIS FEDODE TABAI, J.S.C.

This ruling is sequel to a motion dated the 28th July, 2010 and filed on the 29th of July, 2010. Motion prays for:-

1. An order of interlocutory injunction restraining the Respondents, their servants, agents privies or through any person howsoever except Mr. Olusegun Bamidele Ajayi, the Receiver/Manager appointed by the Court of Appeal from running, operating and/or managing the 1st Respondent pending the determination of the appeal now pending in the Supreme Court.

ALTERNATIVELY

2. An Order of interlocutory mandatory injunction to undo what has been done by restoring Mr. Olusegun Bamidele Ajayi who has been physically removed as the Receiver/Manager pending the determination of the said appeal in this Court i.e Supreme Court.
3. An order of interlocutory injunction restraining the 2nd and 3rd Respondents, their servants, agents privies or any person howsoever from acting as directors of the 1st Respondent or from interfering with Finance, Securities and other business of the 1st Respondent pending the determination of the appeal in the Supreme Court.
4. For such further order or orders which this Honourable Court may deem fit to make in the circumstances.

The grounds for the reliefs sought in the application are set out in 11 paragraphs. The application is supported by an affidavit of 25 paragraphs to which were attached Exhibits SCK1, SCK2, SCK3, SCK4, SCK5, SCK6, SCK7, SCK8, SCK9, SCK10, SCK11 and SCK12. On that same 29th of July, 2010, the 2nd Plaintiff/Applicant deposed to an affidavit of urgency of 26 paragraphs. The facts deposed to are substantially the same as those he deposed to in the 25 paragraph affidavit in support of the motion.

In opposition to the application Mr. Ayo Adesanmi counsel in the Law Firm of Chief Wole Olanipekun SAN for and on behalf of the 1st-3rd Dependants/Respondents (who are Respondent herein) deposed to a counter affidavit of 94 paragraphs to which were attached Exhibits 1- 23. This was on the 13/10/2010. On that same day, on behalf of the 1st – 3rd Respondents, Chief Wole Olanipekun SAN filed a Notice of preliminary objection to urge the dismissal or striking out of the motion. The grounds of the preliminary objection are that:-

The party on whose behest and/or for whose benefit the application is being sought is not an appellant before this court or a party to the appeal proceedings.

(ii) The entire application is incompetent

(iii) If countenanced at all and/or granted, the application will dispose of the appeal against the ruling complained of by the Appellant and also dispose of the appeal at the lower court.

(iv) The application is a gross abuse of the processes of superior courts of record in Nigeria as:

(a) While the Appellants appeal to the Court of Appeal against the decision of the trial High Court of 1st July, 2009 discharging the appointment of Olusegun Ajayi as the Receiver/Manager for the 1st Respondent and filed a motion at the lower court asking the lower court to upturn the discharge order of the trial High Court, thesame Appellants through thesame counsel instituted five different actions at the Federal High Court Lagos in the name of the said Olusegun Ajayi as a Receiver/Manager of the 1st Respondent in suit Nos. FHC/L/CS/898/09, FHC/L/CS/899/09, FHC/L/CS/900/09, FHC/L/CS/901/09 and FHC/L/CS/897/09 claiming far reaching injunctive reliefs against some banks named as Defendants.

(b) Appellants did not inform the Federal High Court, Lagos of the pendency of their substantive appeal and application at the Court of Appeal.

(c) Appellants did not inform the Federal High Court of the discharge of the appointment of Olusegun Ajayi as Receiver/Manager by another judge of the Federal High Court on 1st July, 2009.

(d) Appellants have deliberately hidden the facts adumbrated in (a) (b) and (c) supra before this court in their present application.

The Appellants/Applicants unilaterally changed the title of the case in their application from what it is/was in their Notice of Appeal filed in this court and from those of the parties appearing in the Ruling of the lower court appealed against.