BY FALODUN ARIFAYAN, ESQ.

CASE REVIEW OF

(2010) 6 N.W.L.R. (PT. 1189)

SYNOPSIS

TABLE OF CASES BRIEF FACTS OF THE CASE ISSUES FOR DETERMINATION ARGUMENT OF COUNSEL DECISION COMMENTS/CONCLUSION

TABLE OF CASES

LONGE V. FIRST BANK PLC PAGE 1

IKEYI V. CROWN REALITIES PLC PAGE 114

ANSA & ORS V. ETIM & ANOR PAGE 139

CASE NO.1

LONGE V. FIRST BANK PLC

PAGE I

BRIEF FACTS OF THE CASE- Appellant was suspended as MD/CE of Respondent

and his appointment was revoked whilst on suspension.

- He challenged the termination on the ground that he (a director) was not given notice of the BOD’s meeting which did the revocation in line with Section 266(1) of CAMA.

- Appellant prayed the court that lack of notice invalidates the meeting and termination.

- FHC dismissed the action. CA dismissed his appeal and suo motu raised the issue of the dichotomy between “Executive” and “Non-Executive” Director. SC upheld his appeal and ordered his reinstatement.

ISSUES FOR DETERMINATION

ISSUES DECIDED BY SC. Whether the CA was right in not considering the reply brief in its judgment.. Whether the CA was right in not pronouncing on the findings of fact of the trial court that the Appellant was appointed under the common law.. Whether the CA was right to speculate on an issue not before the court for determination.. Whether the CA was right in holding that although the Appellant was appointed pursuant to Article 105, he is not a director within the contemplation of CAMA and that the office of Executive Director is unknown to CAMA.

ARGUMENT OF COUNSEL

Preliminary objection to Respondent to Appellant’s issue 1 as the judgment of CA did not turn on whether the reply was properly filed.

ON ISSUE 1 Appellant:

Failure to consider reply brief = denial of fair hearing. issues not raised should not be raised by court.

ON ISSUES 2,3 & 4. Respondent :

suspension deprived appellant of right of notice

DECISION

SC Suspension is not removal as a

director Absence of notice invalidates the

removal The CA erred in raising the issue of

“executive” and “non executive director”.

Appellant is deemed to still be the MD/CE of the Respondent.

COMMENTS/CONCLUSION

Well reasoned judgment It will prevent companies from

circumventing the mandatory provisions of CAMA on requirement of notice vis-à-vis removal of Directors.

CASE NO. 2

IKEYI V. CROWN REALITIES PLC 114

BRIEF FACTS OF THE CASE Appellant bought a piece of land from

Respondent. Appellant paid N345, 700 for connection

of the property to water and electricity. Appellant later sued Respondent for

account and refund of excess. Trial court struck out matter at PTC for

want of issue to be decided by trial court. CA upheld the judgment

ISSUES FOR DETERMINATION

Whether TC can strike out the matter during PTC without hearing the parties when there are outstanding issues.

(Denial of fair hearing).Whether TC was right to refuse

Appellant’s leave to amend Statement of Claim in the light of the enactment of an Act.

ARGUMENT OF COUNSEL

ON ISSUES 1 & 2. Appellant : non determination of issue of account was a denial of fair hearing.. Respondent: Having filed a detailed Statement of Account, there was nothing from the Appellant to compare with it.

ON ISSUE 3

. Appellant: need to amend pleadings bcs PSRA makes it illegal for any person or org. to be involved in the G, D & T of electricity exceeding 1MV and 100 KW, respectively without a license from ERC. Respondent: amendment not permitted; it would allow appellant to create a new cause of action and

therefore prejudice the Respondent.

DECISION

On issues 1 & 2. The PTC judge was right to have struck out the matter since there were no issues left for trial. No infringement of fair hearing. (fair hearing is not hearing at all costs).

On issue 3. The PTC judge was right to refuse the amendment; it is retroactive and

overreaching.

COMMENTS/CONCLUSION On issue 1 & 2

. The PTC judge was wrong to have struck out the matter, suo motu, without calling on parties to address it on the propriety of doing so at that stage.

On issue 2. The court held rightly in refusing the application for amendment for the reasons given by the court.

CASE NO. 3

ANSA & ORS V. ETIM & ANOR 139

BRIEF FACTS OF THE CASE The Appellants sued for declaration of title

and trespass to land. Para 7 of the SOC states “the act of trespass began when suit No. C/88/76 was pending”.

The Defendant/Appellant prayed that the matter be struck out for being statute –barred. The trial court struck out the matter holding that the course of action arose over 30 years.

CA held that the TC acted prematurely and ordered a retrial.

ISSUES FOR DETERMINATION

Sole Issue:. Whether the trial court was right to hold that the action was statute barred.

ARGUMENT OF COUNSEL

Appellants: that although the SOC did not state when the

course of action arose, they became aware of the acts of trespass when their tenants were being harassed by Respondents and then had to sue. That the ct ought to have called evidence to

determine when the cause of action arose. Respondent: that the action was caught by statute of

limitation The pleadings disclose that the cause of action

arose when suit No. C/88/76 was pending.

DECISION

CA:

The word ‘Pending’ as used in paragraph 7 is a continuous verb and therefore makes indeterminate the actual time when the cause of action arose.

Plaintiffs/Appellants had some explanations to make as to when the cause of action arose

it is the duty of the trial court where the date when the cause of action arose is disputed not to determine it as a question of fact until evidence has been called on the issue.

the trial judge ought to have called evidence to determine when the cause of action arose.

COMMENTS/CONCLUSION

I agree with the CA that the SOC is not clear as to when the cause of action arose. It was therefore not right for the trial judge to strike out the matter in limine without calling evidence to determine the actual time the cause of action arose.