Skenconsult Nigeria Ltd & Anor V. Godwin Sekondy Ukey (1981)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

My Lords, the substance of this appeal before your Lordship’s court is the setting aside of two orders made by Ekeruche J., (as he then was) on 15th December, 1978 to wit:.

(a) That 42 refrigerated containers stolen at the Gate House, Parking Site Kokey Bendel State belonging to the 1st defendant company (i.e. 1st Appellant in these proceedings) be sold at once by the respondent by private treaty at any price which he can reasonably obtain for them and the proceeds of sale, after deducting the expenses thereof, be paid into court to abide the event in the action.

(b) An injunction to restrain the defendants (appellants) from doing various acts concerned with the management and administration of the 1st appellant company. In fact it was an order to restrain the 1st appellant company and to restrain the 2nd Appellant from carrying on various functions as Managing Director.
The facts which led to the present proceedings are briefly as follows:

The 2nd defendant, LARS POUL SKENSVED,(hereinafter referred to as 2nd appellant) and GODWIN SEKONDI UKEY (hereinafter referred to as respondent) were the Chairman/Managing Director and Director respectively of the Company, SKENCONSULT (NIGERIA) LTD., the 1st defendant in the proceedings in the High Court (hereinafter referred to as 1st appellant). A third party relevant in these proceedings is EMMANUEL OMETAN, a legal practitioner who is the Secretary/Legal Adviser of the 1st appellant. Following serious misunderstanding between the 2nd appellant and the respondent, the respondent instituted an action in the Bendel State High Court, Benin claiming various reliefs (to which I shall make reference in the course of this judgment) against the two appellants. The writ was dated 13th November, 1978 but the return date as endorsed thereon was 24th November, 1978. It is pertinent to mention at this stage that at the time the said suit was instituted, the address of the 1st appellant was 1, Chapel Street, Yaba, Lagos while that of 2nd appellant was 3A, Oduduwa Way, G.R.A., Ikeja, Lagos State.

Almost simultaneously with the filing of the writ of summons, the respondent on the 7th and 11th December, 1978 respectively, filed the two motions which resulted in the orders made on 15th December, 1978 and referred to above. The appellants, being totally aggrieved about these orders, filed a motion in the Bendel State High Court, Benin ,dated 2nd January, 1979, in the following terms:

“Take Notice that this Honourable Court will be moved on 9th of January 1979 at the hour of 9 o’clock in the fore noon or so soon thereafter as counsel for the defendants/applicants can be heard on their behalf for an order of this Honourable Court:-

Setting aside the order made by this Honourable Court on 15th day of December, 1978 and service of the writ of summons (and) the Motion on Notice dated 11th December, 1978 on the ground that such service was not in accordance with the provisions of the Sheriffs and Civil Process Act and also because the court has no jurisdiction to entertain the plaintiff’s claim.
(b)    Setting aside the aforesaid order on the alternative ground that there was a misrepresentation to the court in regard to the stand of the above named defendants/applicants on the motion dated 11th December, 1978……..”

I would like to mention here that although the terms of this motion do not appear to include a prayer for the setting aside of the order on the 42 Refrigerated containers also made on 15th December, 1978, pursuant to the motion filed by the respondent on 7th December, 1978, there is no doubt that the whole contest, both in the court of first instance, and in the Federal Court of Appeal (hereinafter referred to as the Court of Appeal) has been in respect of the setting aside of both orders. Indeed, in an  affidavit supporting the motion set down above, Dickson Dilibe Osuala, a legal practitioner, had in paragraphs 2, 5 and 7 deposed as follows:-

“(2) That the orders of this Honourable Court made on the 15th day of December, 1978 in the above suit were obtained by fraud and deceit…….

(5) That the said orders touch on the livelihood of the company and its very existence as a person at law

(7) That unless this application is heard with utmost promptitude and urgency, irretrievable injustice and loss shall be suffered by the defendants/appellants.”

In a counter-affidavit sworn to by the respondent, he deposed in paragraphs 8 and 9 as follows:-

“(8) That as soon as the order of this Honourable Court dated 15th December, 1978 was made I acted on it.