CaseLaw
Lafferi (Nig.) Ltd. & Anor Vs. NAL Merchant Bank Plc. & Anor (2015) CLR 5(g) (SC)
Judgement delivered on May 22nd 2015
IN THE MATTER OF THE COMPANIES AND ALLIED MATTERS ACT, CAP 59 LFN 1990 AND IN THE MATTER OF MENNOIL PETROLEUM AND PETROCHEMICALS LIMITED
Brief
Facts
This is an appeal against the ruling of the Court of Appeal, Abuja Division delivered on 6th July, 2005 granting the respondents herein an enlargement of time within which to appeal against the judgment of the Federal High Court, Abuja delivered on 4th March, 2004.
The facts that led to this appeal are briefly stated as follows: The appellants herein were plaintiffs at the Federal High Court, Abuja in suit no. FHC/ABJ/CS/114/99 while the respondents and one Dr. Hamza Zayyad (now deceased) were the defendants. The appellants are shareholders and contributories in Mennoil Petroleum and Petrochemicals Ltd. (the nominal party) which was a customer of the 1st respondent bank. They sought declaratory and injunctive reliefs against the respondents and prayed inter alia for the nullification of the appointment, out of court, of Dr. Zayyad as the Receiver/Manager of the nominal party by the 1st respondent, for failure to comply with a condition precedent under the Companies and Allied Matters Act (CAMA) Cap. 59 LFN 1990 requiring notice of such appointment to be given to the Corporate Affairs Commission. They also sought the nullification of all acts, deeds and transactions already concluded by the Receiver/Manager under the receivership. Unfortunately, Dr. Zayyad died during the pendency of the suit and his name was struck out as a party.
By consent of the parties, the trial was conducted on the basis of affidavit and documentary evidence alone. No oral evidence was led. The suit was heard and concluded by Hon. Justice Okechukwu J. Okeke, who then adjourned for judgment. The judgment could not be delivered on the scheduled date, as the learned trial 3udge had been transferred from the Abuja division of the court to the Yenagoa division of the court in Bayelsa State. The judgment written by Okeke, J. and dated 14/4/2003 was eventually delivered by Hon. Justice Binta Nyako on 4/3/2004 almost a year later. The court granted five out of the six reliefs sought by the appellants resulting in the nullification of the appointment of the Receiver/Manager and all acts undertaken by him.
An appeal was promptly filed against the judgment by the respondents' solicitors, Emmanuel Toro & Co. They also filed an application for stay of execution pending the determination of the appeal. They wrote to inform the 1st respondent of the outcome of the suit and the steps taken in order to obtain formal approval. The 1st respondent however instructed them to discontinue the appeal along with the application for stay of execution as they had been overtaken by events. In compliance with their instructions, a motion on notice was filed before the trial court on 27/5/2004 for an order striking out the notice of appeal and the application for stay of execution. The court did not strike out the appeal but deemed it withdrawn. It nevertheless struck out the application for stay of execution. Subsequently however, the appellants took steps to execute the judgment against the respondents. The 1st respondent had a rethink and instructed its solicitors to pursue the appeal. The 2nd respondent, who had not been notified by learned counsel of the outcome of the suit, upon becoming aware, gave separate instructions to pursue the appeal. This gave rise to an application filed on 16/7/2004 for extension of time within which to appeal against the judgment of 4/3/2004. Despite stiff opposition from the appellants the lower court granted the application on 6/7/2005. The appellants are dissatisfied with the decision and have filed a notice of appeal before this court.
Issues
Whether, having regard to the circumstances of this case, the lower court was...