IN THE FEDERAL HIGH COURT
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT IKOYI
SUIT NO. FHC/L/CP/1367/2012
IN THE MATTER OF THE COMPANIES AND ALLIED MATTERS ACT
IN THE MATTER OF NEWSWATCH COMMUNICATION LIMITED
1. MR. NUHU WADA ARUWA
2. PROFESSOR JIBRIL AMINU PETITIONERS
1. NEWSWATCH COMMUNICATIONS LIMIITED
2. GLOBAL MEDIA MIRROR LIMITED
3. MR. JIMOH IBRAHIM RESPONDENTS
4. NEWSWATCH NEWSPAPERS LIMITED
5. CORPORATE AFFAIRS COMMISSION
JUDGMENT DELIVERED ON 20TH OCTOBER, 2014
ADEKUNLE OYESANYA, SAN
EYITAYO BAMISILE (MISS)
TOLUWASE BANKOLE (MISS)
For the Petitioners
FOLAKE ADENIYI (MISS)
For the 1st to 4th Respondents
-The argument that the 2nd Petitioner did not testify is of no moment where cases are contended in pleadings.
− The issues for determination must flow from the pleadings, proliferation of issues by the 1st - 4th Respondents is an attempt to take the Court outside the issues raised by the pleadings.
−The Court agrees with the Petitioners that the Onus lies on the Respondents to prove they have paid for the Shares. See Section 137(1) of Evidence Act.
− Mr. Oyesanya, SAN for the Petitioners has rightly submitted that the issue is whether parties have complied with the Share Purchase Agreement or not.
− The 2nd – 3rd Respondents had obligations to pay on or before completion date of the SPA of 5th May, 2011.
− The 1st – 4th Respondents ran from the case as raised by the Petitioners.
− It is common ground that several meetings were held before the meeting of 5th May, 2011 to bring in the 1st and 2nd Respondents into the 3rd Respondent.
− The Court refers to clause 4:31, 13.0, 13.2 of the SPA.
− The Petitioners gave evidence to show that the 2nd – 3rd Respondents have blatantly failed to pay for the Shares in the Company.
− They have not showed how and when they paid for the said Shares.
− Nothing in paragraph 11 and 18A of the Respondents’ Statement of Defence shows how they have paid for the Shares. There is no evidence in paragraph 3.0 that the Respondents have paid on or before 5th May, 2011. The Respondents have only given their interpretation to that paragraph.
− Whatever monies they spent was spent on Daily Mirror and was confirmed by DW2 during cross examination.
− The N510million was supposed to be paid for Shares and not for any other purpose, there is no evidence to show that the Shares have been paid for. Besides, it was a company called “GLOBAL FLEET” that paid the N14million, not any of the Defendants who contracted with the 1st Defendant.
− The Court agrees that the only way to show or to traverse that they have paid for any Shares is the production of receipt.
− Moses Jolayemi’s evidence goes to no issue because they were not contained in pleadings. So does Bisayo’s evidence.
− The court agrees that the findings of Abang J. in his Judgment in the earlier Suit in Suit No. FHC/L/CS/1054/2012 is not a ratio decidendi but an obita, and is therefore not binding on the Court. Abang J decided an issue that was not before it.
− In calm reflection of the reliefs, the court has come to the inevitable conclusion that the Petitioners have discharged the burden placed on them and have proved their case. While the 1st – 4th Respondents have failed woefully to discharge the burden placed on them.
− The case of the Petitioners have merits. The court grants all the reliefs as set out at the inception of this case (i.e. reliefs A – I), as set out on the Petition as follows:
(a) An Order setting aside the contract entered into between the 1st and 2nd Respondent Companies by virtue of document titled “SHARE PURCHASE AGREEMENT” - NEWSWATCH COMMUNICATIONS LTD
GLOBAL MEDIA MIRROR LIMITED
and executed by the parties therein on or about May, 2011;
(b) A Consequential Order setting aside the Form CAC2-Statement of Share Capital and Return of Allotment of Shares of the 1st Respondent company dated the 27th day of August, 2012 presented for filing by one Gloria A. Ukeje.
(c) An Order directing the 2nd and 3rd Respondent jointly and severally to pay special damages in the sum of N15,780,056 (Fifteen Million, Seven Hundred and Eighty Thousand, and Fifty-Six Naira) to the 1st Respondent Company being loss of Business profits since August 2012 till October 2012 when the 1st Respondent’s operations were unilaterally shut down by the 2nd and 3rd Respondents and to pay an average sum of N5million per month for every month that the 1st Respondent is shut down without production of its weekly magazine until the determination of this Suit.
PARTICULARS OF SPECIAL DAMAGES
(i) Loss of Profit for August 2012 = N 4,685,902
(ii) Loss of Profit for September 2012 = N 5,292,694
(iii) Loss of Profit for October 2012 = N 5,801,460
Total = N15,780,056
(d) Interest on the judgment sum at the rate of 21% per annum before judgment and 10% per annum thereafter until final liquidation thereof.
(e) An order directing the 1st Respondent to open its operations forthwith under a new receiver/manager to be appointed by this Honourable Court;
(f) An Order that any verified sums of money by the 2nd and/or 3rd Respondents in the 1st Respondent Company be refunded to them by the Receiver/Manager from the funds realized from the operations of the company;
(g) An Order of perpetual injunction restraining the 2nd and 3rd Respondents by themselves, their agents, servants or privies howsoever called from further interfering in or assuming management and control of the 1st Respondent Company in any manner whatsoever;
(h) An Order setting aside the Forms CAC 2 and Allied registration details of the 4th Respondent and directing the 5th Respondent not to honour or countenance any steps taken by the 2nd and 3rd Respondents thereupon, by themselves, their agents, servants and privies howsoever called;
(i) An Order of injunction restraining the 2nd and 3rd Respondents by themselves, their agents, servants and privies howsoever called from taking any further steps on the objects of the 4th Respondent Company i.e. from floating a new daily newspaper called Newswatch Daily in the name of the 1st Respondent Company.