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Lower court is to adjourn sine die pending determination of appeal



APPEAL NO. CA/L/465/2014

By striking out the suit, the lower court failed to safeguard the case in the event that the Appellant’s case is caught up by the statute of limitation and the uncertain time frame within which the case would be decided on appeal. Even if the lower court feels that the instant case is dependent on the outcome of the appeal pending before the Supreme Court in SC/763/2013, it ought to have adjourned sine die until the appeal is settled. So held the Court of Appeal sitting in Lagos in a unanimous leading judgment delivered by His Lordship, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO JCA with his learned brothers, SIDI DAUDA BAGE and TIJJANI ABUBAKAR JJCA concurring while allowing the appeal. The parties were represented by B. SALIHU with K. OMOSEHIN for Appellant and FIDELIX ODITAH QC (SAN), with DR. KUBINGA UDOFA, KELLY AGBONZE and JOHNSON AGWU for Respondent.

This is an appeal against the judgment of the Federal High Court Lagos Judicial Division; Per ldris J. dated the 24th day of January 2014 wherein the court declined jurisdiction and struck out the Appellant’s suit.

The background facts of the case leading to this appeal seem quite simple and straightforward. In 2003, the Appellant was invited by the Respondent to join the Board of Directors as a Non-Executive Director. The Appellant’s acceptance was communicated to the Respondent by a letter dated 17th June 2003. However, sometime in 2006 and upon the receipt of the Respondent’s 2005 Annual

Report, the Securities and Exchange Commission (“SEC”) alleged that the Annual Report contained financial misstatements in respect of the Respondent’s account. In view of the allegation, the Respondent engaged the services of an independent firm of account consultants to investigate the allegation of financial misstatement alleged by SEC. Upon conclusion of its investigation, the firm forwarded a report of its findings to the Respondent which subsequently transmitted a copy of the Report to SEC.

SEC upon receiving the report set up an in-house committee to further investigate the matter. The in-house committee concluded that the Respondent and members of its Board of Directors including the Appellant have violated certain provisions of the Investment and Securities Act, Cap 124, Laws of the Federation of Nigeria, 2004 (“ISA”) and the rules made there under. SEC subsequently constituted the Administrative Proceedings Committee (“APC”) to try and determine the allegations made against the directors of the Respondent including the Appellant. By its decision published on 8th April 2008, the APC disqualified the Appellant from operating in the Nigerian Capital Market, from being employed in the financial services sector and from holding directorship positions in a public company for a period of five years from the date of the decision. Subsequently, the Respondent proceeded to remove the Appellant as a director and also made consequential filings at the Corporate Affairs Commission (“CAC”) to that effect. Thereafter, the Appellant commenced proceedings in the lower court challenging inter alia his removal as a director of the Respondent. The lower court declined jurisdiction and struck out the suit. Dissatisfied with the decision, CA/L/465/2014 the Appellant filed a Notice of Appeal dated the 8th of April 2014 on three grounds.

Appellant in his brief formulated three (3) issues for determination as follows: 1. “Whether the learned trial judge was right in declining jurisdiction and striking out this case without considering and determining the issue presented by the Appellant for determination? (Ground 1) 2. Whether the learned trial judge was right in relying on the pendency if Appeal No. SC/763/2013 in striking out this suit? (Ground 2)” 3. Assuming (without conceding) that the outcome of Appeal No. SC/763/2013 is relevant to the present case, whether the appropriate order to make was an order striking out the suit? (Ground 3)”

The Respondent on the other hand formulated a single issue for the determination of this appeal thus: 1. Whether the lower court was right to have struck out the proceedings having found that it lacked jurisdiction to pre-empt the decision of the Supreme Court in SC/763/2013?

In the Appellant’s brief, Counsel submits that the case of the Appellant in the suit which occasioned the present appeal is predicated on the unlawful removal of the Appellant as Director by the Respondent. Counsel argued that rather than the learned trial judge to consider and determine the Issues, he declined jurisdiction. It is Counsel’s submission that it is trite that a court is duty bound to consider and determine issues presented to it. He cited OKONJI v NJOKANMA [1999] 14 NWLR (PT 638) 250 at 270; BRAWAL SHIPPING NIG LTD v F. I. ONWADIKE [2000) 11 NWLR (PT 678) 387 at 403, Per UWAIFO JSC. Counsel submitted that in the instant case, the lower court did not pronounce on any of the issues presented to him but rather chose to ”act with great caution” and advised the parties to be patient and await the decision of the Supreme Court in Appeal No. SC/763/2013, which Counsel contended has no bearing on the present appeal that deals with the determination of the validity or otherwise of the Respondent’s removal of the Appellant as a director of the Appellant. Learned Counsel argued that by virtue of Section 251 (e) of the 1999 Constitution of the Federal republic of Nigeria (as amended), the lower court had exclusive jurisdiction to determine the questions presented before it and that the learned trial judge was duty bound to consider the question raised before it for determination.

On the second Issue, Appellant’s counsel contended that the decision of the lower court was in error and consequently caused the Appellant injustice. Arguing that the lower court based his decision on the pendency of an appeal to the Supreme Court (SC/763/2013) against the decision of this Court in Appeal No CA/L/ 13/2009, counsel submitted that the parties, issues and subject matter in Appeal No CA/L/ 13/2009 are entirely different from the case that led to the instant appeal. Counsel thus submitted and urged this court to hold that the decision of the Supreme Court in SC/763/2013 would have no bearing on the issues/ questions presented to the trial judge for determination. On the third issue, Counsel submitted that contended that assuming the learned trial judge was correct in acting with great caution and suggesting to the parties to be patient and await the decision of the Supreme Court in SC/763/2013, the appropriate order is not an order striking out the matter. Counsel submitted that the correct position was as demonstrated by this court in NIGERIAN SOFT DRINKS COMPANY v A-G, LAGOS STATE [1987] 2 NWLR (PT 57) 445, where the court “stood over” the matter pending the outcome of the Appeal at the Supreme Court Appeal in A-G, OGUN STATE v ABERUAGBA [1985] 1 NSCC 487. Counsel then submitted that the learned trial judge ought to have adopted that approach in the present case. He urged this court to hold that the decision of the trial judge striking out the matter relying on the pendency of Appeal No SC/763/2014 has no basis in law.

Arguing his brief, Respondent’s counsel referred to the judgment of the lower court at Pages 44 to 45 to submit that the lower court was plainly right to decline jurisdiction to pre-empt and second-guess the Supreme Court. Counsel submitted that it is beyond doubt that the Appellant’s claim in the lower court was inspired by his victory in this Court in Appeal No. CA/L/ 13/2009 on 29th January 2013. Counsel argued that the decision of this court in NIGERIAN SOFT DRINKS COMPANY v A-G, LAGOS STATE (supra), where it stayed/ adjourned the appeal sine die pending the determination of the Supreme Court Appeal in A-G, OGUN STATE v ABERUAGBA (supra) does not assist the Appellant because it involved the exercise of the court’s discretion on the facts of that case as no general principles of law or practice were laid down or discernible and that in this case, it has not been shown that the lower court acted perversely in the exercise of its discretionary case management powers. He cited OYEGUN V NZERIBE [2010] 16 NWLR (PT 1220) 568 at 580 G-H, 581 A-C; NIGERIAN LABORATORY CORP. v P.M.B LTD [2012] 15 NWLR (PT 1324) 505 at 528 E-H, 529 A-C.

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