OKEZIE v. C. B.N.: On whether the requirement of raising questions in originating summons before reliefs claimed is absolute -: An insight into the Supreme Court landmark decision.

BONIFACE EBERE OKEZIE
RASHEED OLATUNDU
BASIL UBAH
WAHEED SONIBARE
V.
CENTRAL BANK OF NIGERIA
NIGERIA DEPOSIT INSURANCE CORPORATION
THE ATTORNEY GENERAL OF THE FEDERATION
MALLAM LAMIDO SANUSI
FUNKE OSIBODU
(for herself and as representing the persons for 4th respondent appointed to the board of the 6th respondent)
UNION BANK PLC

CITATION: [2020]15 NWLR PT.1747 AT 181. Courtesy: Moruff O. Balogun Esq.

Summary of Facts:
The 4th respondent herein, Mallam Lamido Sanusi, who was then the Governor of Central Bank of Nigeria, on 14th August, 2009, issued an order removing all the executive directors of the 6th respondent, Union Bank Plc and appointed the 5th respondent, Funke Osibodu, and others to replace them.

Similarly, by the same order, the sum of N120 Billion was injected into the 6th respondent on the ground that it was weak, undercapitalized and/ or insolvent and therefore unreliable and unsafe financial institution.

The 4th respondent published his actions and accusations against the 6th respondent, which he threatened to turn over to the 2nd respondent, the Nigeria Deposit Insurance Corporation, or sell it outrightly to foreign investors.

As a result of the declared crisis in the 6th respondent, its erstwhile directors who had been removed were handed over to the Economic and Financial Crimes Commission (EFCC), the original 7th respondent, for investigation and possible recovery of depositors lost funds.

The appellants herein, who are shareholders of the 6th respondent, filed an originating summons at the Federal High Court, Lagos, under section 303 of the Companies and Allied Matters Act, 1990 (CAMA) and Rule 2 of the Companies Proceedings Rules, seeking leave of the court to challenge the action of the 4th respondent on behalf of the 6th respondent, that is by derivative action.

In the originating summons, the appellants did not raise any questions for answer, but set out their claims, inter alia: an order granting leave to the applicants to bring the action in the name and on behalf of the 7th respondent; a declaration that the purported sacking by the 4th respondent of all the directors of the 6th respondent and replacing them with the 5th respondent was unlawful, ultra vires, null and void, injunctive reliefs, and; damages.

In response to the originating summons, the 1st, 2nd, 3rd, 4th, 5th and 6th respondents each filed a memorandum of conditional appearance and issued a notice of preliminary objection challenging the competence of the suit and the jurisdiction of the Federal High Court to hear and determine the appellants’ action.

The preliminary objection was heard and upheld by the trial court on the ground that the originating Summons did not contain questions for determination.

Dissatisfied, the appellants appealed to the Court of Appeal, which dismissed the appeal for lacking in merit.

Further dissatisfied, the appellants appealed to the Supreme Court. In determining the appeal, the Supreme Court considered the provisions of Order 3, rules 6-9 of the Federal High Court (Civil Procedure) Rules, 2009 which provide:

“6”: Any person claiming to be entitled under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.

“7”: Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of such questions of construction for a declaration as to the right claimed.

“8”: A Judge shall not be bound to determine such question of construction if in the Judge’s opinion, it ought to be determined on originating summons but may make such orders as the Judge deems fit.

“9”: An originating summons shall be in the forms 3, 4, or 5 to these Rules, with such variations as circumstances may require”

HELD: Unanimously allowing the appeal.

The following issues were raised and determined by the Supreme Court:

On Whether the requirement of raising questions in originating summons before reliefs claimed is absolute –
By virtue of Order 3 rule 9(1) of the Federal High Court (Civil Procedure) Rules, 2009 an originating summons shall be in the forms 3, 4 or 5 to the Rules, with such variations as circumstances may require.
This means that the provisions of Order 3 rule 7 are not absolute. If the provision in Order 3 rule 7 were absolute, the provision in Order 3 rule 9 (1) would have been unnecessary. If a plaintiff desires to raise questions in his originating summons, he will resort to Form 3, which is a general form. However, a party who does not desire to raise questions in his originating summons can avail himself of the use of the special Form 4, as it is not necessary to raise questions in the originating Summons. Form 5 is the requisite Form for ex-parte originating summons.

Per PETER- ODILI, J.S.C.:

“There is a need to keep the focus on the substantiality of justice and so each of these forms is valid as an originating summons for the determination of any question of right or of construction under an enactment. Form 3 makes provision for the formulation of questions for determination or construction while the other Form 2 only make provision for the statement of reliefs sought. Form 3 does not make any provision for the statement of reliefs sought in the action; it would seem to be complete with the statement of the questions. But it would be wrong to suggest that no other reliefs could be sought using that Form beyond determining the questions stated. In the same manner, it is a misconception to argue or suggest that no questions or issues of right or construction (on the basis of determined) may be determined on originating summons using either of the other Form 4 or Form 5 for the reason that such questions are not stated on the summons…
It follows that the principle to be applied with regard to originating summons is that it includes either questions for determination or a statement of the reliefs sought.”

On Requirement of raising questions in an originating summons before reliefs claimed-
By virtue of Order 3 rule 7 of the Federal High Court (Civil Procedure) Rules, 2009, any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed. There is clearly a provision in the Rule that has provided for the raising of questions in an originating summons before reliefs are claimed.

On Whether it is mandatory to raise questions in an originating summons before reliefs claimed –
The Federal High Court (Civil Procedure) Rules 2009 does not have such mandatory provision for raising questions in an originating summons before reliefs, as Order 7 rules 1 and 3 of the Federal High Court (Civil Procedure) Rules, 2000. Instead, Order 3 rule 9 (1) of the Federal High Court (Civil Procedure) Rules has given liberty to the plaintiff who is desirous of commencing an action by originating summons to choose between Form 3 and Form 4 depending on the circumstances of his case. If he chooses Form 4, he does not need to raise questions before setting out the reliefs which he seeks. In the instant case, there was sufficient provision in Order 3 rule 9(1) of the Federal High Court (Civil Procedure) Rules to sustain the originating summons of the appellants at the trial court.

On Need for court to be reluctant in dismissing action in limine –
Dismissal of an action in limine is the most punitive relief that a court can grant to a defendant against the plaintiff. Because of its punitive nature, courts of law are reluctant or loath in granting it. In other words, courts of law cannot grant the relief for the mere asking on the part of the defendant. There must be legal basis for the request and corresponding legal basis for granting it. In the instant case, the trial court was wrong in striking out the appellants’ suit that was filed when the Federal High Court (Civil Procedure) Rules, 2009 had come into effect.

On how to commence a derivative action in the name of a company-
A derivative action in which a party seeks leave to bring an action in the name and on behalf of a limited liability company, has the requirement of Rule 2 (2) of the Companies Proceedings Rules to be fulfilled by originating summons with the utilisation of the prescribed Forms 1 and 2 in the Schedule to the Rules, which require only that the reliefs sought on the originating summons be stated. In the instant case, the Court of Appeal rightly found that the applicable Rules were under the Companies and Allied Matters Act and so it was Form 2 of the Rules that applied, which did not require questions to be framed for determination on the body of the originating summons. The court, however, labored under the misconception that under the Federal High Court (Civil Procedure) Rules, 2009, an originating summons must contain questions for determination, particularly where it seeks a declaration or raises issues of construction of an enactment or statutory instrument.

On Duty on court not to shut out parties –
The paramount duty of courts is to do justice and not cling to technicalities that will defeat the ends of justice. It is more in the interest of justice that parties are afforded reasonable opportunity for their rights to be investigated and determined on the merit rather than that parties be shut out prematurely from being heard on the grounds of non-substantial compliance with rules of court. It is immaterial that there are technicalities arising from statutory provisions, or technicalities inherent in rules of court. So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated and failure to comply fully has not occasioned a miscarriage of justice, the proceedings will not be nullified. In this case, the Federal High Court (Civil Procedure) Rules, 2009 had afforded the appellants a variation of choices regarding which form to use in commencing their case. The courts below were therefore wrong to pitch their action in the provision of Order 3 rule 7 of the Federal High Court (Civil Procedure) Rules, 2009 alone.

Courtesy:
Moruff O. Balogun Esq.
IJEBU ODE, OGUN STATE.
08052871414.