Starcola (Nigeria) Ltd & Anor. Vs Madam Taibatu Adeniji & 4 Ors (1972)

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LEWIS, JSC.

In Suit No. M/135/70, the appellants took out an originating Summons which according to the heading of the Summons was on the following basis:

“IN THE MATTER OF THE COMPANIES DECREE, 1968 AND IN THE MATTER OF STARCOLA (NIGERIA) LIMITED APPLICATION MADE UNDER: (1) ORDER 102 RULES 3(1) AND 3 (2) OF THE RULES OF THE SUPREME COURT OF ENGLAND (2) SECTION 12 OF THE HIGH COURT OF LAGOS ACT.”

And sought in the Originating Summons itself the following reliefs:-

“(a) For a declaration that the five applicants and the 2nd Respondent are Joint Promoters of the Company known as STARCOLA (Nigeria) Limited, the 1st Respondent herein.

(b) For a declaration that all the Applicants are entitled to subscribe the Memorandum of Association of the said Starcola (Nigeria) Limited and are entitled jointly with the 2nd Respondent to any benefit accruing or that may accrue to the promoters of the said company.

(c) For a declaration that the 2nd Respondent as from the 11th of May, 1970 is a trustee for himself and the Applicants as beneficiaries in respect of the affairs and dealings of the said Starcola (Nigeria) Limited.

(d) For a consequential order to amend the Register of Members of the said Starcola (Nigeria) Limited so as to include the names of the 1st-5th applicants as subscribers to the Memorandum of Association of the said Starcola (Nigeria) Limited and for such further or other consequential directions as to this Honourable Court may seem fit.”

As against the respondents who were Starcola (Nigeria) Limited (the company in question) as 1st respondent and Mr. D. Alalade who was in fact a member of that company as 2nd respondent. It was the case for the applicants on affidavit evidence that they had agreed with the 2nd respondent to promote a new company in which they were all to be subscribers to the Memorandum of Association, and to be allotted shares in the newly formed company, but that, though the 2nd respondent was directed to arrange the necessary registration of the proposed company, he in fact without informing the applicants registered the company (the 1st respondent) with only the 2nd respondent and one T. Durrand as the subscribers to the Memorandum and Articles of Association. The applicants, as we have indicated, filed their summons relying on the provisions of Section 115 of the Companies Decree, 1968 (which incidentally is in pari materia with Section 116 of the English Companies Act, 1948, dealing with the rectification of the register) which reads:-

“(1) If –

(a) the name of any person is, without sufficient cause, enter in or omitted from the register of members of a company; or

(b) default is made or unnecessary delay takes place in entering on the register the fact of any person having ceased to be a member; the person aggrieved, or any member of the company, or the company may apply to the court for rectification of the register.

(2) Where an application is made under this section, the court may refuse the application or order rectification of register and payment by the company of any damages sustained by the party aggrieved.

(3) On an application under this section the court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or alleged members on the one hand and company on the other hand, and generally may decide any question necessary or expedient to be decided for rectification of the register.