The appellants were defendants at the Federal High Court, Port Harcourt, to a suit by the respondent company, Chika Brothers Ltd., claiming as follows:

In paragraph 3 of the respondent's statement of claim, it was averred as follows:

"The second defendant who resides in Aba within the jurisdiction of this Honorable Court is the founder and managing director of the 1st defendant. He shall hereinafter be called 'the 2nd defendant' and both the defendant and the 2nd defendant shall hereinafter together be referred to as 'the defendants.' The defendant was at all times material to this action managing director of the 1st defendant and acted as its chairman."

The appellant filed joint statement of defence and traversed paragraph 3 of statement of claim as follows:

"The defendants admit paragraph 3 of the statement of claim to the extent that the 2nd defendant was the chairman, founder and managing director of the 1st defendants. The defendants however explained that by the 7th extraordinary meeting of the 1st defendant held on the 25th of October 1976, the 2nd defendant ceased to be the chairman of the 1st defendants. Chika Akanu Agu chairman of the plaintiff company was appointed the chairman of the 1st defendants while the 2nd defendant retained his position as the managing director of the 1st defendants. The defendants will at the trial rely on the minute book of the 1st defendants at pages 49 and 51."

During the hearing of evidence, D. Okorie Onyemanwa Okorie, the second defendant (now second appellant), identified the minute book of first appellant and through him, counsel for the appellant sought to tender the said minutes book. The respondent's counsel, Mr. Umezuruike, was recorded by learned trial Judge as follows:

"The defence has an objection. He (sic) says it does not comply with the provision (sic) of section 382 of the Companies Act, 1968 in that it does not conform with precautions laid down in the section. In making this submission I would rely on the case of Oruwari & Ors. v. Okunna & Ors.

The counsel had not with him the reference of the case he cited and nothing more about it. But to this submission, Mr. Njoku of counsel, for the defendants (now appellants) urged the court to hold that the minute book complied with S.382 of Companies Act, 1968 and that the minutes were pasted on it in the regular way with no indication of any tampering with the book.

Learned trial Judge in a ruling held that the minute book did not comply with S.382 of Companies Act and therefore for that non-compliance was not a minute book. That the court went beyond the argument of the parties and considered section 138 of Companies Act, instead of S.382 thereof. This is because S.138 of the act actually created the minute book and made it evidence of what transpires at the company's proceedings of directors or general meetings. (S. 138(1) refers). But it is S.382 of the act that explains what the contents of the book should be and how it is to be kept. It states:

But the section creating the minutes book is S.138 which states that:

The court of first instance alludes mainly to S.138(1) (supra) and relied on the decision in Onwuka v. Taywami and Ors. (1968) 2 L.L.R. (Commercial) 310 and reference made in that case of English case of Hearts of Oak Assurance Company Ltd. v. James Flower & Sons (1936) Ch. D, 76. The Court of Appeal upheld decision of the trial court that the minute book tendered offended section 382 and S.138 of Companies Act.

The appellants, therefore, appealed against the ruling to the Court of Appeal. That court (Nasir, P.C.A., Nnaemeka-Agu, J.C.A,. as he then was, and Babalakin, J.C.A.) upheld the ruling of the trial court. In his lead judgment, Babalakin, J.C.A., concluded as follows:

"The necessity for keeping a company's minute’s book in strict compliance with the provisions of the Companies Act is indeed very important. I, therefore, uphold the learned trial Judge's conclusion that the minute’s book sought to be tendered by the appellant, which were typed loose sheets of the minutes which were subsequently pasted on the minutes book, does not constitute minutes book under the provisions of section 138 and 382 of the Companies Act, 1968 and was rightly rejected.

On the submission of learned counsel for the appellant that the learned trial Judge having come to the conclusion that the minutes were not made as entries in the minutes book, failed to consider whether the means adopted was in accordance with accepted commercial usage and its delivery whether the means guarded against falsification and for facilitating its discovery as provided in section 382(2) of the Companies Act, quoted above, I wish to emphasise that it was the duty of the learned counsel to present evidence of these matters to the court. He did not do so and the court cannot consider it.

This appeal is therefore, hereby dismissed."

The appellants, therefore, appealed further to this court.