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<p class="MsoNormal" style="text-align:justify"><u>REPRESENTATION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">M. Adeniran and M. Oddiri, for the claimants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">J. C. Ugo, with Miss Oluwadamilola Akinrinade and N. J. Inyang, for the defendants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>RULING<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">The claimants by a complaint dated and filed on 3<sup>rd</sup> June 2013 (with the accompanying originating processes) are claiming against the defendants for the following reliefs –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.5in; mso-text-indent-alt:-.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>i.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An interim order of Court directing the defendants to pay the sum of (N7,095,806.06) (Seven Million and Ninety Five Thousand, Eight Hundred and Six Naira, Six Kobo) to the lawful Administrators of the Estate of late Chief Y. C. Onwechekwa and/or to the Chief Registrar of the National Industrial Court, pending the determination of the substantive suit.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.5in; mso-text-indent-alt:-.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>ii.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->A declaration that the full entitlements/dues/benefits of the late Chief Y. C. Onwuchekwa from the 1<sup>st</sup> defendant is the sum of N13,348,056.06 (Thirteen Million, Three hundred and Forty Eight Thousand and Fifty Six Kobo).<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.5in; mso-text-indent-alt:-.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>iii.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->An order directing the defendants jointly and severally to pay to the Estate of Chief Y. C. Onwuchekwa a total sum of N13,348,056.06 (Thirteen Million, Three hundred and Forty Eight Thousand and Fifty Six Kobo), being his full entitlements/dues/benefits and interests, calculated at the rate of about 21% per annum from July 2004 until final payment is made.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.5in; mso-text-indent-alt:-.25in;mso-list:l0 level1 lfo1"><!--[if !supportLists]--><span style="font-stretch: normal; font-size: 7pt;"> </span>iv.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Further and other reliefs<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants entered formal appearance and then filed a motion on notice (supported by an affidavit and a written address) praying that the suit be dismissed or struck out for lack of jurisdiction, competence and proper service on the defendants. The grounds upon which the motion was filed are –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo2"><!--[if !supportLists]-->1)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The basis of the claimants’ claims in this suit is that the 1<sup>st</sup> defendant is the owner of VON Automobiles Nigeria Limited (formerly VOLKSWAGEN OF NIGERIA LTD) owing to the privatization exercise carried out in 2005 by Bureau of Public Enterprises on behalf of the Federal Government of Nigeria with respect to the 35% Federal Government of Nigeria’s shares in VOLKSWAGEN OF NIGERIA LTD.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo2"><!--[if !supportLists]-->2)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->By virtue of the dilution of shares in 2010, Barbedos Ventures Limited (BVI) clandestinely acquired over and above 78% equity of VOLKSWAGEN OF NIGERIA LTD and has since then been steering the affairs of VOLKSWAGEN OF NIGERIA LTD including changing its name to VON Automobiles Nigeria Limited. Barbedos Ventures Limited (BVI) is a limited liability company owned and incorporated by Mr. Sunil Vaswani and his brothers in British Virgin Island.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo2"><!--[if !supportLists]-->3)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->As at the date of the commencement of this suit, the 1<sup>st</sup> defendant has ceased to be the owner of VON Automobiles Nigeria Limited.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo2"><!--[if !supportLists]-->4)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The 1<sup>st</sup> defendant ceasing to be the owner of VON Automobiles Nigeria Limited (formerly VOLKSWAGEN OF NIGERIA LTD) is a feature in this case which prevents this Honourable Court from exercising its jurisdiction in the matter.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo2"><!--[if !supportLists]-->5)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The 1<sup>st</sup> defendant herein being a minority shareholder in VON Automobiles Nigeria Limited (formerly VOLKSWAGEN OF NIGERIA LTD) is not a proper party to this suit.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo2"><!--[if !supportLists]-->6)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The 1<sup>st</sup> defendant is only a minority shareholder and cannot be made to shoulder the burdens of the claims of the claimant. The 1<sup>st</sup> defendant has only about 17% of the total shares in the company.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo2"><!--[if !supportLists]-->7)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The claimants have no cause of action against the defendants herein.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo2"><!--[if !supportLists]-->8)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The defendants in this suit were not properly served in accordance with the rules of this Honourable Court.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo2"><!--[if !supportLists]-->9)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->In the circumstances, this Honourable Court lacks jurisdiction and or competence to entertain this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants then framed two issues for the determination of the Court, namely –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo3"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether from the facts and circumstances of this case, this Honourable Court has the jurisdiction and or competence to entertain this suit.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo3"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether personal service of the originating process on the 2<sup>nd</sup> and 3<sup>rd</sup> defendants/applicants and service on the registered address of the 1<sup>st</sup> defendant are condition precedent to activate the jurisdiction of this Honourable Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants chose to argue both issues together. Citing <i>Madukolu v. Nkemdilim</i> [1962] SCNLR 341; [1962] NSCC 374, the defendants submitted that there is a feature in this case that prevents the Court from exercising its jurisdiction, which is that the 1<sup>st</sup> defendant is no longer the owner of VON Automobiles Nigeria Limited (formerly Volkswagen of Nigeria Ltd) as alleged by the claimants in their statement of claim which same allegations formed the basis of their claim, referring to paragraphs 2, 3 and 4 of the statement of facts dated 30<sup>th</sup> May 2013 but filed on 3<sup>rd</sup> June 2013. That the claimants averred that the defendants became seised of the assets and liabilities of VON Automobiles Nigeria Limited (formerly VOLKSWAGEN OF NIGERIA LTD) vide a purchase of the FGN shares in the said company by the Bureau of Public Enterprises in 2006 but this fact had since 2010 changed. That the moment the basis of a claim collapses, the claim automatically collapses since one cannot build something on nothing, citing <i>Mcfoy v. UAC</i> [1962] AC 152. That this Court cannot close its eyes to these facts and assume jurisdiction in this matter since the defendants cannot be made to bear a burden that is not theirs. That the facts of the change in status of VON Automobiles Nigeria Limited (formerly VOLKSWAGEN OF NIGERIA LTD) are verifiable facts as the exhibits of the defendants show.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants went on to acknowledge that as at 2006, the 1<sup>st</sup> defendant had the majority shares in Volkswagen of Nigeria Ltd (now VON Automobiles Nigeria Ltd) and was at that time responsible for the payment of benefits f the staff of Volkswagen of Nigeria Ltd including the claimants. That the 1<sup>st</sup> defendant cleared all liabilities of Volkswagen of Nigeria Ltd save for those of the plaintiffs due to the internal crisis they had in the family. However, that as at 6<sup>th</sup> July 2010, the 1<sup>st</sup> defendant ceased to be responsible for the payment of the benefit of the staff of Volkswagen of Nigeria Ltd as it lost majority of shares to Barbedos Ventures Ltd (British Virgin Island) i.e. the Vaswani Brothers. That since ownership of the company changed hands, the present defendants are not the proper parties to the suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">After defining what a cause of action is, the defendants cited <i>Osigwe v. PSPLS Mgt. Consort. Ltd</i> [2009] 16 WRN 7 and <i>Ohakim v. Agbaso</i> [2010] 19 NWLR (Pt. 1226) 182, and then submitted that the claimants do not have any cause of action against the defendants and so the statement of claim should be struck out, referring to <i>NCC v. MTN</i> [2006] 38 WRN 64. That from the facts of this case, the claimants brought to wrong parties to court since at the time of filing this suit, the defendants were no longer in control/management of the defunct Volkswagen of Nigeria Ltd, the company having been taken over by Barbedos Ventures Ltd (BVI). Also that where the relief claimed cannot be gotten from the defendants before the court, the order would be made in vain and the whole trial a nullity. That as it is, none of the reliefs sought for by the claimants can be granted against the defendants, citing <i>Cotecna Int’l Ltd v. Churchgate (Nig) Ltd</i> [2011] 18 WRN 13. That the claims of the claimant should not be against the present defendants; as such, the Court should strike out the suit for non-disclosure of cause of action against the defendants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant proceeded to submit that the 1<sup>st</sup> defendant is a limited liability company regulated by the provisions of the Companies and Allied Matters Act (CAMA) 1990, which by section 78 enjoins that originating processes on a company must be served at the company’s registered office address. Section 78 of CAMA provides that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">A court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at, or sending it by post to, the registered office or head office of the company.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">That the registered office an or head office of the 1<sup>st</sup> defendant has at all times material been and is at No. 5 Junction road (Alkali Road/Jabi Road) Kaduna, Kaduna State. The defendants then referred to Order 7 Rule 6 of the National Industrial Court (NIC) Rules 2007, which provides as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Subject to any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or other process requiring personal service may be served on the organization by delivery to a director, secretary, trustee or other senior, principal or responsible officer of the organization, or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendants, the principal place of business and the registered office address of the 1<sup>st</sup> defendant has at all times been No. 5 Junction Road (Alkali Road/Jabi Road) Kaduna, Kaduna State. That the purported service of the originating processes in this suit on the 1<sup>st</sup> defendant at Km 18 Badagry Expressway, Ojo, Lagos is ineffective in law and same is in breach of the statutorily prescribed mode of service, citing <i>Mark v. Eke</i> [2004] 16 WRN 57 SC.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants went on that personal service of the originating processes on the 2<sup>nd</sup> and 3<sup>rd</sup> defendants herein is a condition precedent to the exercise of jurisdiction of this Court, citing Order 7 Rule 1(1) of the NIC Rules 2007, which provides that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Any notice or other document required or authorized by these Rules to be served on, or delivered to any person may be served on that person personally or sent by registered post or courier or left at that person’s address for service or, where no address for service has been given, the registered office, principal place of business or last known address, and any notice or other document required or authorized to be served on, or delivered to the court may be sent by registered post or courier or delivered to the Chief Registrar.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendants, serving the 2<sup>nd</sup> and 3<sup>rd</sup> defendants at Km 18 Badagry Expressway, Ojo, Lagos, has not complied with Order 7 Rule 1(1) of the NIC Rules 2007; and that the onus is on the claimants to show that they have complied with Order 7 Rule 1(1). That the 2<sup>nd</sup> and 3<sup>rd</sup> defendants are resident and based in Kaduna, and there was no application for substituted service on them at the purported place of service nor an order made to that effect. That in the absence of an order for substituted service, the 2<sup>nd</sup> and 3<sup>rd</sup> defendants have not been properly served in this matter. That the rules of court have provided for personal service, which must be obeyed, citing <i>Mako v. Umoh</i> [2010] LPELR-4463(CA) and <i>CCT & CS Ltd v. Ekpo</i> [2008] All FWLR (Pt. 418) 198 at 229.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants continued that service of originating process is fundamental to the exercise of jurisdiction, citing <i>Ngige v. Achukwu (No. 1)</i> [2005] 3 WRN 114 at 13 (wrong pagination) and <i>Madukolu v. Nkemdilim</i> (<i>supra</i>). That in the absence of a valid service of originating process of the court on the defendants, this Court lacks jurisdiction to proceed with the case, urging the Court to grant this application and dismiss the suit with substantial cost in favour of the defendants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In reaction, the claimants filed a counter-affidavit and a written address; and in the written address, the claimants adopted the two issues framed by the defendants, but argued them distinctly. As to whether this court has jurisdiction and or competence to entertain this suit, the claimants submitted that by the admission of the 1<sup>st</sup> defendant in their affidavit in support of their motion, the 1<sup>st</sup> defendant actually partook in the privatization exercise of the Federal Government and in the process purchased the defunct Volkswagen of Nigeria Ltd and a result became seized of the assets and liabilities of the said defunct company. That in carrying out its new role as owner of the defunct company, the 1<sup>st</sup> defendant commenced the process of settlement of entitlements of claims of staff of the defunct company. However, that the defendants claim that since the 1<sup>st</sup> defendant became a minority shareholder of the defunct Volkswagen of Nigeria Ltd as a result of the entrance of new owners who acquired majority shares in the said defunct company, then the 1<sup>st</sup> defendant cannot be held liable for the settlement of entitlements of the late Chief Y. C. Onwuchekwa. That the defendants have not denied that the 1<sup>st</sup> defendant is not part-owner of the said defunct company, but their argument is that since it has minority shares, then it cannot be held liable.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimants, it is trite that as soon as the majority and minority shareholder bought over the defunct Volkswagen of Nigeria Ltd, they took over the assets and liabilities of the said defunct company. Consequently, issues such as the settlement of entitlements as in the instant case, has to be borne by both of them. Thus the minority shareholder can together with the majority shareholder be held jointly and severally liable for the payment of the entitlements of the late Chief Y. C. Onwuchekwa and the position of the defendants that the 1<sup>st</sup> defendant is not liable is not correct. That even if the 1<sup>st</sup> defendant is a minority shareholder of the defunct Volkswagen of Nigeria Limited, being a part-owner of the said defunct company, it is still a necessary party to the determination of the suit. As to who a necessary party is, the claimants referred to <i>Adisa v. Oyinwola</i> [2000] 6 SC (Pt. II) 47 at 75. That for this matter to be effectually and completely settled and for judgment to be binding on the 1<sup>st</sup> defendant, it is necessary the defendants remain parties in this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On this issue, the claimants concluded that since the defendants are not in denial that entitlements of Chief Y. C. Onwuchekwa need to be paid and this remedy ought to be enforced, then the jurisdiction of this Court in hearing the matter can be invoked as the Court has the competence to entertain this suit, since there is a cause of action, referring to <i>Bello v. AG Oyo State</i> [1986] 5 NWLR (Pt. 45) 828.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding whether personal service of the originating processes on the 2<sup>nd</sup> and 3<sup>rd</sup> defendants and service on the registered address of the 1<sup>st</sup> defendant are condition precedent to activate the jurisdiction of this Court, the claimants referred to Order 7 Rules 1 and 6 of the NIC Rules 2007 and section 78 of CAMA, all cited by the defendants. To the claimants, section 78 of CAMA requires service of court processes to be made subject to the Rules of Court; and Order 7 Rule 6 of the NIC Rules requires amongst others that service of originating processes could be effected by leaving same at the registered, principal or advertised office <i>or place of business of the organization within jurisdiction</i>. That the 1<sup>st</sup> defendant is not in denial that it had actually purchased the defunct Volkswagen of Nigeria Ltd during the privatization exercise of the Federal Government of Nigeria. In fact, that it had in the past been engaged in the payment of the entitlements of staff of the defunct Volkswagen of Nigeria Ltd through its office at Km 18, Badagry Expressway, Ojo, Lagos and had actually raised a cheque for the sum of “N7,095,086.06 (Seven Million, Ninety Five Thousand Naira, Eighty Six Naira, Six kobo)” in favour of the late Chief Y. C. Onwuchekwa at its office located at the said defunct Volkswagen of Nigeria Ltd, Km 18, Badagry Expressway, Ojo, Lagos, where it had been operating from for years.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants went on that the Rules of this Court require that the 2<sup>nd</sup> and 3<sup>rd</sup> defendants could be served the originating processes by the same being left at the last known addresses of the 2<sup>nd</sup> and 3<sup>rd</sup> defendants. That the originating processes in this suit were served on the defendants by leaving same at the place of business of the organization within jurisdiction and also the last known address of the 2<sup>nd</sup> and 3<sup>rd</sup> defendants. That from the documents exhibited by the 1<sup>st</sup> defendant, the 1<sup>st</sup> defendant is still part-owner of the defunct Volkswagen of Nigeria Ltd and still operates its business from the address of the said defunct company and the 2<sup>nd</sup> and 3<sup>rd</sup> defendants at all material times and till date have their offices at the said Km 18, Badagry Expressway, the premises of the defunct Volkswagen of Nigeria Ltd. That the 1<sup>st</sup> defendant stated in their affidavit dated 21<sup>st</sup> August 2014 that it had commenced proceedings in court challenging the ownership of the said defunct Volkswagen of Nigeria Ltd by the alleged new owners, which then means that it is contending that it still has full ownership of the defunct company and has its operations in the company. That it is because the originating processes were served at the said Km 18, Badagry expressway, Ojo, the place of business of the 1<sup>st</sup> defendant and the last known address of the 2<sup>nd</sup> and 3<sup>rd</sup> defendants, that the defendants became aware of the pendency of this suit, urging the Court to hold that the service effected on the defendants is proper service.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the claimants submitted that the fundamental objective of the Rules of this Court is for a just, efficient and speedy dispensation of justice; and that the defendants brought this motion to delay the trial of this matter. The claimants then urged the Court to dismiss the defendants’ motion in the interest of justice.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants reacted on points of law. To the defendants, the claimants in their written address agreed that as at the date this suit was commenced, the 1<sup>st</sup> defendant was a minority shareholder in Volkswagen of Nigeria Ltd but that even as a minority shareholder, the 1<sup>st</sup> defendant is liable jointly and severally with the majority shareholder for the claimants’ reliefs in this suit. The defendants then submitted that the fact of the 1<sup>st</sup> defendant being a minority shareholder of Volkswagen of Nigeria Ltd without more in law ousts the jurisdiction of this Court in entertaining this suit. The defendants then referred to <i>NDIC v. CBN</i> [2002] 7 NWLR (Pt. 766) 272, which enjoins courts to look at the statement of claim when determining the issue of jurisdiction, as well as paragraphs 2, 8 and 9 of the statement of facts. That the Court should note that the claimants did not sue the 1<sup>st</sup> defendant <i>qua</i> minority shareholder who is jointly liable to the claimants’ claims with the majority shareholder. That rather they sued the 1<sup>st</sup> defendant as the “new owner” and the party in “ownership and control” of Volkswagen of Nigeria Ltd. That the claimants’ argument that the 1<sup>st</sup> defendant as minority shareholder is jointly liable with the majority shareholder is not supported by their statement of facts that determines the Court’s jurisdiction.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants went on that courts do not act in vain. That any order or judgment made in this case against the 1<sup>st</sup> defendant who is not the majority shareholder of Volkswagen of Nigeria Ltd will be an order in vain as the 1<sup>st</sup> defendant will be unable to comply with such an order or judgment. That if the claimants decide not to proceed against the real “new owner” and the party in “ownership and control” of Volkswagen of Nigeria Ltd (who owns about 78% of the shares of Volkswagen of Nigeria Ltd) and prefers to proceed against a minority shareholder who is neither the “new owner” nor in “ownership and control” of Volkswagen of Nigeria Ltd, then it will only in the end obtain a hollow and empty judgment as it will be impossible for the 1<sup>st</sup> defendant to comply with such judgment or order. The Court was then referred to <i>Ohuka v. State</i> [1988] 1 NWLR (Pt. 72) 539 as authority for courts to yield to the possibility of performance of their orders and judgments otherwise the doctrine of impossibility will come to play.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendants then addressed the issue of service on the 2<sup>nd</sup> and 3<sup>rd</sup> defendants. To the defendants, the 2<sup>nd</sup> and 3<sup>rd</sup> defendants are individual private persons who by the Rules of this Court have to be served personally. That anything short of personal service renders the process incompetent. That the 2<sup>nd</sup> and 3<sup>rd</sup> defendants are domiciled outside Lagos State and need to be personally served the originating processes. That till date, they have not been so served. That dumping the processes meant to be served on them personally at the then gate of the defunct Volkswagen of Nigeria Ltd is an incompetent service, referring once again to Order 7 Rule 1 of the NIC Rules 2007, reiterating in the process arguments already canvassed in the main written address.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the issue of the 1<sup>st</sup> defendant challenging the dilution of its shares in the law court, the defendants argued that it does not follow thereby that the 1<sup>st</sup> defendant is hitherto the owner of VON Automobile Nigeria Ltd. That that suit instituted by the 1<sup>st</sup> defendant has not yet been determined and for the claimants to contend that the said action initiated by the 1<sup>st</sup> defendant is an indication that it is still the owner of VON Automobile of Nigeria is a mere assumption and/or speculation and is of no moment in law and moreover the claimants failed to depose to any facts forming the basis of their assumption. The defendants then urged the Court to reject the arguments and submissions of the claimants in their entirety and dismiss or strike out this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>COURT’S DECISION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">I heard learned counsel and considered all the processes filed in this case. I need to quickly resolve the issue of service of processes, which the defendants made as their issue 2. The sad thing is that the defendants’ arguments as to service of processes bring to the fore their counsel’s befuddlement in the assumption that this Court is same with the High Courts. We have always stressed the fact that this Court is a specialized court distinct from the High Courts and that counsel will do well to always bear this in mind when arguing cases before this Court. To start with, the continual reference by counsel to the defendants to ‘plaintiff’ instead of the more appropriate word ‘claimant’ used under the Rules of this Court is either an act of mischief or a blatant attempt at carrying the hangover of his practice in the High Courts to this Court. Secondly, by Order 7 Rule 1(1) of the Rules of this Court as cited by counsel to the defendants, counsel ought to know that by that provision, personal service is not the primary and superimposing mode of service that must be used first before any other can be attempted as obtains in the High Court. So the argument of the defendants in paragraph 4.12 of their written address that personal service of originating processes on the 2<sup>nd</sup> and 3<sup>rd</sup> defendants is a condition precedent to the exercise of jurisdiction (an argument repeated in paragraph 1.07 of the reply on points of law i.e. that the 2<sup>nd</sup> and 3<sup>rd</sup> defendants are individual private persons who by the NIC Rules have to be served personally), is not only faulty and wrong but mischievously smacking of the hangover of counsel’s High Court practice I alluded to earlier. This can be seen in the argument of counsel in paragraph 4.16 of their written address where counsel was generic in saying that “the rules of court has provided for personal service to be effected on parties”. So in knowing that the High Courts enjoin personal service, counsel to the defendants assumes this is necessarily the case in this Court. To, therefore, talk of lack of an application for, or order as to, substituted service as the defendants did in paragraph 4.15 of their written address is not only uncalled for but shows the puerility in the argument of the defendants’ counsel in that regard; unless counsel just does not know that substituted service is unnecessary under the Rules of this Court. I accordingly agree with the claimants’ argument that the service of the processes on the defendants accords with the NIC Rules. The argument of the defendants in that regard is misconceived and so is hereby rejected.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The other issue raised by the defendants relates to the competence of this suit and hence whether or not this Court has jurisdiction over it. Once the competence of a suit is raised, it is to the originating processes only that the Court must go, not any other process. The defendants acknowledged this fact, even citing <i>NDIC v. CBN</i> [2002] 7 NWLR (Pt. 766) 272 in support. It is surprising, therefore, that the defendants chose to file an affidavit deposing to facts that are outside of what the claimants put before the Court in their statement of facts. At best, the defendants can raise the issues they raised in their affidavit as their defence to the action, in which event if the Court agrees with them then the case can on merit be dismissed or struck out as the case may be. To question the competence of this suit and then do that by reference to extraneous facts (such as that the 1<sup>st</sup> defendant is no longer the owner of Volkswagen of Nigeria Ltd since it is a minority shareholder) not in the statement of facts is wrong. This of course is without prejudice to the right of the defendants to raise those facts in their defence as to the merit of the case. The claimant, for instance, in paragraphs 2 and 8 of the statement of facts pleaded that the 1<sup>st</sup> defendant assumed the ownership and control of Volkswagen of Nigeria Ltd having purchased same; and in paragraph 9 described the 1<sup>st</sup> defendant as the present owners of the company. All through the statement of facts, the claimants made it very clear that it is the defendants who are responsible for paying the entitlements of Chief Y. C. Onwuchekwa. Now, if the defendants have a contrary view and proof as to all of this, they can only bring this in their defence to the action in terms of the merit of the case. This is because, for purposes of determining the jurisdiction of the Court, it is the pleadings of the claimants that are relevant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is because of reference to these extraneous facts by the defendants that the claimants were compelled to react by contending that it is trite that majority and minority shareholders buying a company thereby take over the assets and liabilities of the company bought and so are jointly and severally liable for the payment of entitlements such as those in dispute in the instant case; and that the 1<sup>st</sup> defendant, as a minority shareholder, is a part-owner of the company in question, and so it is still a necessary party to the determination of this suit. The problem is that to none of these propositions of law did counsel to the claimants refer the Court to any authority beyond the simple phrase, “it is trite that…” Now, this thing about counsel using the phrase “it is trite (law) that…”, something that is now fashionable amongst counsel, when appropriate authorities should be cited and referred to by counsel, is a very lazy form of advocacy. That phrase can only be used for propositions of law that are so notorious that it is idle to refer to the authorities authenticating the propositions. Classical company law has it that it is the majority shareholder who owns the company and so takes controlling and management decisions, although the Court of Appeal held in <i>Okomu Oil Palm Ltd. v. Okpame</i><span style="font-family:"Verdana","sans-serif"; color:#009933;mso-bidi-font-weight:bold"> </span>[2006] LPELR-7708(CA); [2007] 3 NWLR (Pt. 1020) 71 held <i>Okomu Oil Palm Co. Ltd. v. Iserhienrhien</i> [2001] 6 NWLR (Pt. 710) at 660 SC to be good law in holding that having a controlling number of shares in a company is not synonymous with its ownership once it is incorporated as an entity of its own and having its own separate legal existence. The problem, however, is: how can it be said that a proposition that majority and minority shareholders buying a company are thereby jointly and severally liable for the liabilities of the company is one that can simply be supported by the phrase “it is trite (law) that…”? The authority of <i>Adisa v. Oyinwola</i> (<i>supra</i>) cited by the claimants simply states who a necessary party is and the necessity of joining same as a party, not even whether a minority shareholding company should be sued alongside the majority shareholder (company), which is the issue presently before this Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Even the defendants who vehemently argued that the fact that the claimants conceded that the 1<sup>st</sup> defendant is a minority shareholder of Volkswagen of Nigeria Ltd, which fact without more in law ousts the jurisdiction of this Court in entertaining this suit, did not refer to any authority to authenticate that proposition. Instead, they referred the Court to <i>NDIC v. CBN</i> [2002] 7 NWLR (Pt. 766) 272, a case that simply said that it is to the statement of claim that a court must go when considering the issue of jurisdiction. So what then do we have? Neither the defendants who raised the issue of being a minority shareholder and so not thereby being liable, nor the claimants who canvassed the opposite argument, were helpful to this Court in authenticating any of their respective contentions.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Yet the issue of the competence of the suit remains an issue. In paragraphs 12, 13 and 14 of the statement of facts, the claimants raised the issue of the lawful administrators of late Chief Y. C. Onwuchekwa. Even here, the claimants did not state in any of the paragraphs of the statement of facts that they are the lawful administrators to the Estate of Chief Y. C. Onwuchekwa. It is only as per the title of this suit that the claimants described themselves as suing as Administrators of the Estate of Young Chukwuma Onwuchekwa. In paragraph 18 of the statement of facts, the claimants talked of the 2<sup>nd</sup> defendant going to the Probate Division of the Lagos State High Court to confirm the authenticity of the letters of Administration presented to him by the Estate of late Chief Y. C. Onwuchekwa, which was duly confirmed as such. Yet, nowhere in the originating processes did the claimants frontload this vital document to show that they are indeed the lawful Administrators of the Estate of late Chief Y. C. Onwuchekwa, and hence have the locus to come to this Court as it pertains to this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As it is, therefore, the issues raised by the defendants as to the competence of this suit in terms of the liability of the defendants (in terms of being minority shareholders) are issues raised prematurely. They go to the defence of the merit of the case, not as issues of preliminary objection. The same is also true of the claimants’ failure to frontload the letters of Administration showing that the claimants are indeed the lawful Administrators of the Estate of late Chief Y. C. Onwuchekwa. The case shall accordingly proceed to trial with these issues subject to proof by the parties in terms of the merit of the case; I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Ruling is entered accordingly. I make no order as to cost.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center">……………………………………<o:p></o:p></p> <p class="MsoNormal" align="center" style="text-align:center">Hon. Justice B. B. Kanyip, PhD<o:p></o:p></p>