The Daily Times Of Nigeria & Ors. V. D. S. V. Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment)

This is one of three appeals against the decision of the Federal High court in respect of the dispute over the sale of the 1st Appellant to the 2nd Appellant, who emerged as the preferred bidder, when the Federal Government of Nigeria sold the 1st Appellant’s shares, pursuant to its privatization Programme.

To fulfill its obligation, the 2nd Appellant borrowed N750,000.00 from Hallmark Bank Plc., and offered the Respondent 40% of the shares for N500,000.00, which it paid to the Bureau of public Enterprises [BPE], and it was then registered as a shareholder by corporate Affairs commission [CAC]. In 2005, the Respondent filed suit No. FHC/L/CS/594/2005 at the Federal High court against the Appellants, and Nigerian stock Exchange as 4th Respondent, Hallmark Bank as 5th Respondent, Equatorial Trust Bank as 6th Respondent, BPE as 7th Respondent, and chief Anthony Idigbe SAN, as the 8th Respondent.

The parties subsequently settled out of Court, and a Consent Judgment was entered as per the terms of settlement by D. D. Abutu, J., (as he then was) on the 24th of April 2006, wherein it was agreed by the parties inter alia that-

“No party shall file any new action based on the matters, the subject of this Settlement Agreement, in any guise whatsoever save for the enforcement of this Agreement”.

However, in 2009, the Respondent and Afribank Nigeria Plc., filed a Petition under Section 311(1) of the Companies and Allied Matters Act of 1990 [CAMA], wherein they prayed the Federal High Court, Lagos, for the following reliefs –

1. A DECLARATION that FOLIO COMMUNICATIONS LTD. [2nd Appellant] – – did not pay for the 140, 252, 900 shores that is 56% shores allotted to DTN Plc. [1st Appellant].
2. A DECLARATION that 140, 252, 900 shares allotted to FOLIO COMMUNICATIONS LTD. [2nd Appellant] have reverted back to DTN Plc. [1st Appellant].
3. A DECLARATTON that DTN PLC paid for the 140, 252, 900 that is 55% of its shares.
4. A DECLARATT1N that FOLIO COMMUNICATION LTD. is No LONGER a shareholder of DAYLY TIMES OF NIGERIA (DTN) PLC.
5. A DECLARATION that the current issued shares in DTN PLC have been reduced to 93, 501, 936 ordinary shares held by DSV LTD. [Respondent] and 9,600 ordinary shares held by various shareholders.
6. A DECLARATTON that the use of the proceeds from the sale and mortgage of DTN properties and other minority shareholders in DTN PLC is oppressive against the petitioner [i.e. the Respondent] and other minority shareholders in DTN PLC and a breach of fiduciary relationship.
7. A DECLARATION that the debt due to AFRIBANK NIGERIA PLC IN the SUM Of N575,696,793.61, the subject of winding up proceedings in Suit No. FHC/L/CP/1072/09 is capable of being settled by the sale of the reverted shares of DTN PLC without winding up DAILY TIMES OF NIGERIA PLC.”

The Appellants, who were the 1st, 3rd to 6th Respondents, filed two processes on the 21st of December 2009; an “Affidavit in opposition to the Petition”, and a Motion on Notice praying the lower Court for an order “dismissing and striking out this Suit for want/lack of jurisdiction” on the following Grounds –

1. The suit of the Petitioner disclosed no cause of action.
2. The petitioner had by the consent Judgment entered in Suit No. FHC/L/CS/594/2005 waived her right and therefore has no right of action in respect of the matters grounding this Petition.
3. The petitioner had by the said Consent Judgment waived her right to litigate the issues as contained in the Petition.
4. No Right of action enures to the Petitioner.

The Application came up for hearing before O. J. Okeke, J., on 14/1/2010, and learned counsel for the Respondent, L. A. Idu, Esq., told the lower Court that –

“The petitioner’s answer to the 1st, 3rd – 6th Respondents’ said Motion on Notice is the petition itself. The Court is urged to take a look at the Petition in its entirety and refuse the 1st, 3rd – 6th Respondents’ Motion on Notice dated 27th December 2009”.

The lower Court adjourned the matter to 19/2/2010, “or any earlier date to be communicated to counsel” for Ruling/Judgment, but it later abridged the time from 19/2/2010 to 29/1/2010. However, before the lower Court could deliver the said Ruling/Judgment, the Appellants filed an Application dated 27/1/2010, wherein they sought for five reliefs, which included a prayer for the following –

Granting leave to the Applicants to raise the issue of jurisdiction to wit: locus standi by the petitioner to file the Petition in the first place and deeming the supplementary address on this issue as properly filed and served”.

The Respondent opposed the Application on the ground that -“it is not known to the Rules”, and “it is an attempt to arrest the Judgment” – The lower court stood down the matter and came back to deliver two Rulings and a Judgment. It dismissed the Application dated 21/12/2009 because the Petition contains “serious allegations on the way and manner the affairs of the 1st Respondent are run by the Respondents to the detriment of the 1st Respondent, etc., the “allegations relate to the acts done after the consent judgment of 24/2/2006”; and even without some paragraphs, the Petition “discloses a cause of action”

In its Ruling on the Application dated 27/1/2010, the lower court held that –

Though, couched as seeking the leave of court to re-open the argument in the matter – – it is nothing but on attempt to arrest the delivery of the Ruling/judgment fixed for this morning. Courts generally frown on arrest of Judgment, and the grant or refusal of Application for arrest of Judgment of a competent Court with jurisdiction to entertain the claim short turn on peculiar circumstances of each case – – – Notwithstanding the fact that on arrest of Ruling or Judgment is a stranger to the Rules of court, there is nothing in the grounds and affidavit in support to persuade this court to be favourably disposed to the Application – – The present Application is nothing but a ploy to unnecessarily delay the conclusion of the Petition. The – – Motion on Notice dated 27/1/2010 is unmeritorious, and it is hereby dismissed”.