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CaseLaw

Barbus & Co Nig Ltd V. Okafor-Udeji (2018) CLR 5(j) (SC)

Judgement delivered on the 18th day of May, 2018

Brief

  • Fresh point on appeal
  • Statement of claim
  • Locus Standi
  • Grounds of appeal & Issues for determination
  • Cause of action
  • Fresh point on appeal
  • Section 15 of the Court of Appeal Act 2004

Facts

The Respondent herein, who was applicant at the trial Court, commenced an action at the Federal High Court, Lagos, by notice of an Originating Motion dated 30th August, 2004 and sought the following reliefs:

  • 1
    An order for the rectification of the Register of members of the 1st Respondent company by the entry of the name of the Application, Mr. Azuka Joseph Okafor-Udeji therein as the bona fide holder of 50% (one half) of the total shareholdings in the 1st Respondent company.
  • 2
    A Declaration that the 1st Respondent company was floated to take over the partnership business trading under the name and style of Barbus & Co., equally owned by both the Applicant and the 2nd Respondent, and did so take the same over since incorporation.
  • 3
    An order restraining the 2nd Respondent from parading himself and members of his immediate family or further parading himself and members of his immediate family as the owners, members and/or shareholders of the 1st Respondent Company to the exclusion of the applicant herein.

And for such further and other orders as this Honourable Court may deem fit to make in the circumstance.

The grounds of the application were stated by the applicant/Respondent. The Respondent (as applicant) also filed a motion on notice for interlocutory injunction on same date being 30th August, 2004 praying for certain reliefs as contained at page 56 of the record. Both applications were supported respectively by 22 and 24 paragraph affidavit and Exhibits marked Ajo 1 - Ajo 16.

The Appellants herein, who were respondents at the trial Court, on 19th November, 2004, filed a notice of preliminary objection to the originating motion on notice and counter affidavit to the motion on notice for interlocutory injunction. The 22 paragraph affidavit/counter affidavit had two exhibits marked PC - 1 and PC -2 annexed thereto. In reply, the respondent filed a further and better affidavit and counter affidavit both dated 15th December, 2004.

The Notice of Preliminary objection dated 19th November, 2004 sought to dismiss the suit on the following grounds:

  • a
    That there was no reasonable cause of action.
  • b
    That the Respondent herein lacked the locus standi to institute the action.
  • c
    That the suit was not properly constituted.
  • d
    That the action is incompetent.

    • With the consent of counsel for both parties, the trial Court heard both the originating motion and the preliminary objection together.

    In a considered Ruling delivered on the 24th day of June, 2005, the learned trial Judge, Abdu Kafarati, J., on page 179 of the record held as follows:

    In the absence of any such evidence, I will agree with Mr. Chinedu Moore for the Respondents that the Plaintiff has no standing to institute this action, Where a party is held to have no locus standi to institute an action, the proper order to be made is that of striking out. It has been argued on behalf of the Respondents that the Applicant not having shown that he contributed to the formation of the 1st Respondent or subscribed to the memorandum and Articles of Association, he (the Applicant) cannot be said to have any cause of action against the Respondents. This I also agree with the learned counsel, I also find for the Respondents that the Applicant herein has not disclosed any reasonable cause of action against the Respondent's for the reliefs he is claiming. That being so, it is my considered view that the plaintiffs originating motion has no merit and deserves to be dismissed. It is accordingly dismissed with N5, 000 costs to Respondents.

    Dissatisfied with the above decision of the learned trial Judge, the Respondent herein appealed to the Court of Appeal and in its judgment delivered on the 16th day of July, 2009, the lower Court allowed the appeal, set aside the judgment of the trial Federal High Court and remitted the case back to the Chief Judge of the Federal High Court for assignment to another Judge to determine the matter on merit.

    The appellants herein were also dissatisfied with the judgment of the Court of Appeal and filed Notice of Appeal.

    Issues

    • 1
      Whether the learned Justices of the Court of Appeal were right...
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