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In The Supreme Court of Nigeria On
Friday , 12th day of January, 1990 SC 42/1988
Before
Their Lordships
Between
And
Judgement
of the Court Delivered by Salihu Modibbo Alfa Belgore. J.S.C.
On the 16th day of October, 1989, I allowed this appeal and reserved to today my reasons for so doing. I now give my
The
appellants were defendants at the Federal High Court, Port Harcourt, to a suit
by the respondent company, Chika Brothers Ltd., claiming as follows:- (1)
A declaration that the plaintiff is not and has never been a shareholder
of the 1st defendant. (2) A declaration that the said sum of
(3) The sum of
(4) Interest on the said
In
paragraph 3 of the respondent's statement of claim, it was averred as follows: The second defendant who resides in Aba within the jurisdiction of this Honourable Court is the founder and Managing Director of the 1st defendant. He shall hereinafter be called 'the 2nd defendant' and both the defendant and the 2nd defendant shall hereinafter together be referred to as 'the Defendants.' The defendant was at all times material to this action Managing Director of the 1St defendant and acted as its Chairman. The
appellant filed joint statement of defence and traversed paragraph 3 of
Statement of Claim as follows: The defendants admit paragraph 3 of the Statement of Claim to the extent that the 2nd defendant was the Chairman, founder and Managing Director of the 1st defendants. The defendants however explain that by the 7th extra ordinary meeting of the 1St defendant held on the 25th of October, 1976, the 2nd defendant ceased to be the Chairman of the 1st defendants. Chika Akanu Agu Chairman of the plaintiff Company was appointed the Chairman of the 1st defendants while the 2nd defendant retained his position as the Managing Director of the 1st defendants. The defendants will at the trial rely on the Minute Book of the 1st defendants at pages 49 and 51. During
the hearing of evidence, D. Okorie Onyemanwa Okorie, the second defendant (now
second appellant), identified the Minute Book of first appellant and through
him, counsel for the appellant sought to tender the said Minutes Book. The
respondent's counsel, Mr. Umezuruike, was recorded by learned trial Judge as
follows: The
defence has objection. He (sic) says it does not comply with the provision (sic)
of section 382 of the Companies Act, 1968 in that it does The
counsel had not with him the reference of the case he cited and nothing more
about it. But to this submission, Mr. Njoku of counsel, for the defendants (now
appellants) urged the Court to hold that the Minute Book complied with S.382 of
Companies Act, 1968 and that the minutes were pasted on it in the regular way
with no indication of any tampering with the book. Learned
trial Judge in a ruling held that the Minute Book did not comply with S.382 of
Companies Act and therefore for that non-compliance was not a Minute Book. That
the court went beyond the argument of the parties and considered section 138 of
Companies Act, instead of 5.382 thereof. This is because S.138 of the Act
actually created the Minute Book and made it evidence of what transpires at the
company's proceedings of directors or general meetings. (S. 138(1) refers). But
it is S.382 of the Act that explains what the contents of the book should be and
how it is to be kept. It states: 382
(1) Any register, index, minute book or book of account required by this
Decree to be kept by a company may be kept either by making entries in bound
books or by recording the matters in question in any other manner in accordance
with accepted commercial usage. (2) Where any such register, index, minutes book or book of account is not kept by making entries in a bound book, but by some other means, adequate precaution must be taken for guarding against falsification and for facilitating its discovery and where default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a fine... But
the section creating the minutes book is S.138 which states that: (1) Every company shall cause minutes of all proceedings of general meetings, all proceedings at meetings of its directors, and where there are managers, all proceedings at meetings of its managers to be entered in books kept for that purpose. The
court of first instance alludes mainly to S.138(1) (supra) and relied on the
decision in Onwuka v. Taywami & 0rs. (1968) 2 A.L.R. (Commercial)
310 and reference made in that case of English case of Hearts of Oak
Assurance Company Ltd. y'. James Flower & Sons (1936) Ch. D, 76. The
Court of Appeal upheld decision of the trial court that the minute book tendered
offended section 382 and S.138 of Companies Act. To my mind, the Court of Appeal
adverted more to the state of the law, but never considered whether the facts
thereto establish the legal position supported the judgment of the trial court.
All that the case of Onwuka v. Taywami & Ors (supra) decided
in regard to minute book can be summarised as follows: Entries made on loose sheets of paper, whether kept in a file or fastened together between covers, are not admissible in evidence as minutes entered in a book within the meaning of S.73 of the Companies Act (Cap. 37) Laws of Nigeria, 1958, and pasting them into a book at a later stage does not make them evidence. Section
73 of the Companies Act, 1958 is slightly different from S.138 of the Companies
Act, 1968, but their interpretation should not bring difficulty as they are
virtually in pan mate,7a. But the decision in Onwuka's case
(supra), is based on Hearts of Oak Assurance Co. Ltd. v. James Flower
& Sons (supra). However, this latter case concerned a book consisting of
a number of loose sheets of paper fastened together in two covers which weretendered in evidence. The documents were "in such physical condition that
at any moment, if any one wishes to do so he can take any number of leaves out
and substitute any number of other leaves. It is a thing with which any one
disposed to be dishonest can easily tamper." It was held therefore to
offend English Companies Act, 1929, S.120, which is in pari materia with our S.382
of the Companies Act, 1968. At the time the case was decided in 1936, there
seemed to be no authority on that point concerning the minute book. In
the present appeal, there is a world of difference between the facts before the
court and the law. Before a book is rejected as minute book, there must be
raised an objection as to its admissibility, challenging its authenticity
either as to falsification, or tampering, or not being in the proper form or
that the book totally fails to answer the requirements of S.382(2) Companies
Act, 1968. To simply assert that it did not answer the requirements of the
section without more, is not enough; specific acts of non-conformity with the
subsection must be pointed out. What transpired before the trial court as quoted
earlier on certainly fell short of the requirements needed before the rejection
of the book. The respondent's counsel acted prematurely. However,
the book now in court and marked as "Rejected Exhibit" is a bound
volume titled "MINUTE BOOK." The pleading of the appellant quoted
earlier on, clearly stated in paragraph 3 that reliance would be placed on pages
49 and 51 of the minute book. The book is a bound volume with ledger index and
it contains 480 pages. All the minutes are typed on foolscap paper and pasted to
odd pages i.e. every other odd number page from page 1. In
the minutes relevant to the instant appeal, pages 49 and 51, contain the
pastings. Page 50 does not contain anything just as every other even number page
from page 2 to page 48 contains no pasting of minutes. In the respondent's
counsel's submission, there is no allegation of falsification or tampering; bald
allegation of offending section 382 or 138 of the Act is not enough. In Hearts
of Oak case (supra), the documents were in loose form for appreciable period
before they were held together in two volumes (not bound). whereas in cases
after 1948, the courts in England and Australia have looked the other way from
decisions like Hearts of Oak (supra) and Re A Solicitor ex pane
"The Prothonotary" (1939) 56 N.S.W.W.N. 53 and have held
that it will be sufficient for minutes to be recorded in a rough scrapbook as in
the old case of Legal & General Life Ass. Co. V. Gill (1878) 4 O.V.R.
204; or minutes pasted into a book were sufficient and that any person
challenging them was to call for evidence as to when they were entered in order
to show that they were not made within the proper period - Donohue V. Joynton
Smith (1948) 22 A.L.J. 62. This is because of the Companies Act, 1948 (11
and 12 Geo 6 c. 36) whose provisions in S.145 and S.436 are the same as our
S.138 and 382 respectively of Companies Act, 1968. Similar provisions exist in
Australia. It
is for the foregoing reasons that I found merit in this appeal and allowed it by
setting aside the decision of the Court of Appeal which upheld the trial court's
ruling. Judgment Delivered By Obaseki. J.S.C.
On the 16th day of October, 1989 after hearing the submissions of
counsel and reading the briefs filed together with the record of proceedings and
judgment in the court below, I found merit in this appeal and allowed the appeal
and reserved the delivery of my reasons for the judgment till today. I now
proceed to give it. Before
now, I have had the privilege of a preview of the Reasons for Judgment just
delivered by my learned brother, Belgore, J.S.C. I agree with all the opinions
expressed on the issues raised in the appeal for determination. The
only issue raised in this appeal is whether the Minute Book held inadmissible
and marked "Rejected" by the learned trial Judge because it did not
comply with section 382 of the Companies Act, 1968 is admissible or not. I
have myself examined the book. It is a bound Minute Book and had the title
"Minute Book" impressed on it. The minutes were typed and pasted on
alternate pages of the Minute Book but the typed pages are numbered serially in
respect of the meeting to which it relates. The relevant minutes are at pages 49
and 51 of the Book but the typed sheets are numbered pages where any such register, index, minute book or book of account is not kept by making entries in a bound book but by some other means, adequate precaution must be taken for guarding against falsification and for facilitating its discovery and where default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a fine. The
subsection deals with situation where the book is not kept by making entries in
a bound book. It is quite proper to observe that the rejected minute book
is a bound book and although the entries contained therein were not made by
hand, they were nevertheless entries but only in a type written form. It
cannot therefore be contended that the entries were not entries in
a bound book. The Court of Appeal was therefore in error to have affirmed the
ruling of the learned trial Judge rejecting the minute book from admission as
evidence in the proceedings. The book is relevant and it is admissible as
original document. It
is sad to observe that it was at the tail end of the proceedings in the High
Court that this interlocutory decision to reject the document was made. It is
even sadder to observe that the proceedings before the High Court had to be
stayed to allow the pursuit of appeal proceedings against the decision. Although
the hearing before this court did not take more than an hour to conclude, it
took 8 years for the appeal to travel from the High Court through the Court of
Appeal to this Court. If the plaintiff had allowed the learned trial Judge to
conclude the hearing and deliver his judgment, he could still have had the
opportunity to raise the issue of admissibility in the appeal courts. He would
have enjoyed the added advantage that if the point raised succeeded, the
decision in the case could have been reversed in his favour and the rights of
the parties in the matter determined finally. What is the position now? Although
the point raised before us has been upheld and resolved in the appellant's
favour, the rights of the parties cannot be determined finally in this Court as
hearing before the High court, Aba, had not been concluded. The case has to be
remitted to the High Court for hearing to proceed. In the meantime, information
has reached this court that the learned trial Judge conducting the trial is
dead. That being the case, trial has to commence de novo before another
Judge of the High Court of Imo State, Aba Judicial Division. It
is therefore necessary to emphasise that parties should not throw to the wind
the wisdom of leaving the prosecution of issues or points that can be It
was for the above reasons that I allowed the appeal and set aside the decision
of the Court of Appeal on the 16th day of October, 1989. Judgment Delivered By Uwais. J.S.C.
This is an interesting case on a company's minutes book. The appellants
were the defendants in the Federal High Court, Port Harcourt, where the
respondent company brought an action against them, inter a/ia, claiming
for a declaration that it was not and had never been a shareholder of the 1St
appellant. Pleadings were filed. In their amended joint statement of defence,
the appellants pleaded the following averments in paragraphs 7, 8, 10 and 11
thereof: (7)
At the 1St Annual General Meeting of the 1St defendants held at Bumaby
Vancouver, Canada, on the 17th of September, 1975, the 2nd defendant as
the Managing Director was authorised to invite Chika Agu of the plaintiffs'
Company amongst others to become members of the Company. The said Chika Agu was
and still is the Chairman of the board of directors of the plaintiffs. The
defendants will at the trial rely on the minutes of this meeting at pages 7, 11
of the Minutes book. (8) At the meetings of the 1St defendants held at Abriba between the 8th and
12th January, 1976, the said Chika Agu who was present at the meetings accepted
to be associated with the activities of the company as a member. As a result of
the acceptance he was given a copy of the 1St defendants'
document titled THE
INAGRINDUS GROUP OF COMPANIES-AN
INTERIM REPORT AND ACCOUNTS FOR 1975/76 FISCAL YEAR. The defendants will rely
on the copy of this and on the minutes book at the tnal." (10) At the sixth extraordinary General Meeting held at Cotonou in the
Republic of Benin on the 17th of July, 1976 at the residence of Chika Akanu Agu
the plaintiffs acquired 51% Equity shares in the 1St defendants Company and
Messrs Chika Akanu Agu, Ina K. Agu and Mark Okoroafor all of the plaintiffs
Company were appointed Directors of the 1St defendants. The defendants will
at the trial rely on the minutes at pages 37 and 39 of the 1st defendants'
minutes book (11) Chika Akanu Agu and other representatives of the plaintiffs namely Akanu
I. Agu, ma K. Agu and Irolo Nnam-Nmaju, Solicitor/Legal Adviser to the
plaintiffs, attended and participated at various formal and informal meetings of
the 1St
defendants
between January, 1976 and May, 1978. Defendants will at the trial rely on the
minutes of the 1st defendants at pages 15, 19, 23, 39, 41, 51 of the Minutes
Book." (Italics mine). At
the hearing of the suit before Osakwe, J., the 2nd appellant, as 2nd defendant,
gave evidence and the defence sought to tender through him the minutes book of
the 1st appellant. Counsel for the respondent, then as plaintiff, raised
objection to the admission of the minutes book on the ground that the minutes
book "does not comply with the provisions of section 382 of the Companies
Act, 1968 in that it does not conform with the precautions laid down in that
Section." In his ruling, upholding the objection, the learned trial
Judge stated as follows: Before
I go further, I think it is important to repeat here that section 73 of the old
Companies Act (Cap. 37 of the Laws of the Federation of Nigeria, 1958) is in
pari
materia with section 138 of the present Companies Act, (1968). It
seems to me that in Onwuka's case (supra) (1965 Lagos High Court Reports,
62), it took several months before the typed loose sheets of the minutes were
pasted in the Minutes Book. I do not think that the period between the time the
minutes were typed on the loose leaves and the time they were pasted on the
minutes books is the relevant factor to be considered. In my view, the issue is,
whether the minutes were written down in the minutes book in which case it would
have complied with the provisions of section 138 of the Companies Act, (1968)
(formerly section 73 of the old Companies Act) or whether the minutes were typed
in loose sheets and subsequently, at later time, pasted in the Minutes Book. In
the latter case it seems to me that it does not compiy with the provisions of
the law and falls completely outside the requirements. Such Minutes book in
such a case offends the provisions of section 138 of the Companies Act, 1968. I,
therefore, hold the view that this Minutes Book, sought to be tendered by the
defendants in this case, which, as I have seen it, are typed loose sheets of
the minutes which were subsequently pasted on the Minutes Book, does not
constitute Minutes Book under the provisions of section 138 and section 382 of
the Companies Act. It does not comply with those sections of the Company
Act." (parenthesis and italics mine). The
appellants, therefore, appealed against the ruling to the Court of Appeal. That
Court (Nasir, P.C. A., Nnaemeka-Agu, J.C.A,. as he then was, and Babalakin,
J.C.A.) upheld the ruling of the trial court. In his lead judgment, Babalakin,
J.C.A., concluded as follows: The
necessity for keeping a company's minutes book in strict compliance with the
provisions of the Companies Act is indeed very important. I,
therefore, uphold the learned trial Judge's conclusion that the minutes book
sought to be tendered by the appellant, which were typed loose On
the submission of learned counsel for the appellant that the learned trial Judge
having come to the conclusion that the minutes were not made as entries in the
minutes book, failed to consider whether the means adopted was in accordance
with accepted commercial usage and its delivery whether the means guarded
against falsification and for facilitating its discovery as provided in
section 382(2) of the Companies Act, quoted above, I wish to emphasise that it
was the duty of the learned counsel to present evidence of these matters to the
court. He did not do so and the court cannot consider it. This appeal is therefore, hereby dismissed. The
appellants, therefore, appealed further to this court. They formulated the
following issues in their brief of argument for determination by us: (1)
Whether the decisions in (a) Hearts of Oak Assurance Co. Ltd. v. James Flower
& Sons. (1936) Ch. 76 (b) Onwuka V. Taywani & 6 Ors. (1968)
A.L.R. Commercial 313(3), (c) Oruwari & Ors. y'.
Okuna
& Ors. Suit No. FRC/L/77P4 (unreported) were rightly followed
and applied to the instant case considering that these decisions were based on
section 120 of the Companies Act, 1926 of the United Kingdom and section 73 of
the former Companies Act, Cap.37 of the Laws of the Federation of Nigeria which
have no similar provision as section 382 of the Companies Act of 1968. (2) Whether the trial court could not have examined the minute book to
conclude whether or not the minute book was open to falsification just as it did
when it came to the conclusion by physical examination that the minute book
contained pasted loose sheets. (3) Whether section 90 of the Evidence Act was not applicable in matters relating to the Companies Act, 1968.
The
argument of Mr. Njoku, learned counsel for the appellants in support of the
first issue for determination is simple and straightforward. It is that the
Court of Appeal was in error when it failed to consider the import of section
382 of the Companies Act, 1968 as the United Kingdom Companies Act, 1929, on
which the decision in the Hearts of Oak Assurance Company's case (supra)
was based and the Nigerian Companies Act, Cap. 37 did not have the provisions of
that section (section 382). He, therefore, submitted that it was wrong for the
Court of Appeal to rely on the cases decided on the In
his reply, Mr. Umezuruike, learned counsel for the respondent argued that the
trial court did not refuse to admit the minutes book tendered on the authority
of the cases cited in the issue for determination, but because he found as a
fact that the minutes book tendered by the appellants did not qualify as a
minutes book not having been kept in strict compliance with the provisions of
section 382 of the Companies Act, 1968. He further argued that since the Court
of Appeal agreed with the finding of the trial court, there has been concurrent
findings on the fact; and therefore, the concurrent findings should not be
interfered with by this court. With
respect, I do not agree with the submissions of learned counsel for the
respondent. What both the trial court and the Court of Appeal were concerned
with was the construction of section 138 of the Companies Act, 1968 read
together with section 382 of the same Act, in order to decide whether the
minutes book tendered for admission qualified as a minutes book under the
provisions of the two sections of the 1968 Act. I think the submissions of
learned counsel for the appellants are well taken. In
the case of Onwuka V. Taywani (supra) Alexander, J. (as he then was)
relied on the decision in Hearts of Oak Assurance Company's case (supra)
to hold that the minutes book admitted in evidence as exhibit 1 6A was not
valid. The learned Judge said at pages 7~7 1 thereof as follows: On
the authority of Hearts of Oak Assurance Co. Ltd. V. James Flower & Sons (cited
above) I reject these minutes of the 19th July, 1963 as evidence of a meeting
which was supposed to have taken place on that date because the loose leaves on
which these minutes were supposed to have been recorded were not a 'book' within
the meaning of section 73 of the Companies Act Now
section 73 of Cap. 37 corresponded with section 120 of the Companies Act, 1929
(of the United Kingdom) on which the decision in Hearts of Oak's case was
based. The provisions of section 138 of the Companies Act, 1968 are
substantially the same as those of section 73 of Cap. 37 and section 120 of the
Companies Act, 1929 (of the United Kingdom). If, therefore the present case were
to be decided simply on the provisions of section 138 of the 1968 Act, it would
have been possible to follow the decision in Onwuka's case (supra). However,
the position of the law has since changed in both the United Kingdom and
Nigeria. In the United Kingdom a new Companies Act came into force in 1948 and
had with it section 436; the provisions of which were not available in the 1929
Act. The effect of the provisions of Section 436 was to overrule the decision in
Hearts of Oak's case-see Palmer's Corn-pany Law, 21st Edition,
foot-note No.1 at page 494. Similarly section 382 of our Companies Act, 1968
contains corresponding provisions with those of section 436. It reads: 382
(1) Any register, index, minute book, or book of account required by this
Decree (Act) to be kept by a company may be kept either by making entries in
bound books or by recording the matters in question in any other manner in
accordance with accepted commercial usage.
(2) Where any such register, index, minute book
or book of account is
not kept by making entries in a bound book, but by some other means, adequate
precautions shall be taken for guarding against falsification and for
facilitating its discovery.. . Commenting
on the provisions of section 436 of the U.K. Act, the learned authors of Palmer's
Company Law, 21st Edition, said on p.494 thereof; The minutes need not be kept in a bound book but may be recorded in loose-leaf books or in any other manner provided that adequate precaution is taken for guarding against falsification and facilitating discovery. In
my view this comment is equally as good for construing the provisions of section
382 of the Companies Act, 1968. With this in mind, I am of the opinion that both
the decisions in Onwuka's case and the decision of Akanbi, J. (as he then
was), in Oruwari's case (unreported) which followed the decision in the
former, cannot now be good law. Consequently, the learned trial Judge was wrong
in holding that "typed loose sheets of the minutes which were subsequently
pasted on the Minutes Book, does (sic) not constitute Minutes Book under the
provisions of section 138 and section 382 of Companies Act." And the Court
of Appeal was equally in error when it upheld the decision of the learned trial
Judge. In
the light of the foregoing it is not necessary to consider the second issue for
determination, as the question whether the minutes book tendered by the
appellants was open to falsification is a matter of the weight to be attached to
the minutes book once the minutes book is admitted in evidence. With
regard to the third issue for determination, the point was not argued by the
appellants in their brief of argument. It should therefore be taken as
abandoned. It
was for these and the reasons given by my learned brother, Belgore, J.S.C.,
which I had the opportunity of reading in draft, that I agreed on the 16th day
of October, 1989, that this appeal had merit and that it should be allowed with
~500.00 costs against the respondent. Judgment Delivered By Kawu. J.S.C.
This appeal came up for hearing on the 16th day of October, 1989, and
having heard counsel's submissions on that day I came to the conclusion that
there was some merit in the appeal and it was accordingly allowed. I then
indicated that I would, today, give my reasons for doing so. I have had the
privilege of reading in draft the lead "Reasons for Judgment" just
delivered by my learned brother, Belgore, J.S.C., and I am in complete agreement
with those reasons which I adopt as mine. In
my view the provisions of 5.138 of the Companies Act, 1968 simply make it
compulsory for any company to record, in a book, kept for the purpose all the
proceedings of its general meetings or the meetings of its directors and general
managers. These provisions do not deal with the manner in which such a book
should be kept. The relevant section dealing with the manner of keeping a
company's Minute Book is 5.382(1) of the Act which reads as follows: 382
(1) Any register, index, minute book or account required by this Decree to be kept
by a company may be kept either by making entries in bound books or by recording
the matters in question in any other manner in accordance with accepted
commercial usage. (2) Where any such register, index, minutes book or book of account is not kept by making entries in a bound book, but by some other means, adequate precaution must be taken for guarding against falsification and for facilitating its discovery and where default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a fine of five pounds and where the offence is a continuing one, shall in addition be liable to a fine of five pounds for every day during which the default continues. The
Minute Book sought to be tendered and which was marked "Rejected
Exhibit" is a bound volume clearly and boldly titled "MINUTE
BOOK", and there was no evidence whatsoever before the trial court that the
method of recording matters in the Book was in violation of any of the
provisions of the Act. In
my view the rejected Minute Book sufficiently satisfied the provisions of the
relevant law and that the trial court was in error to have based its decision on
peculiar facts of the decision in Onwuka i'. Taywani & Ors (1968) 2
A.L.R. (Commercial) 310, and so was the court below in Judgment Delivered By Agbaje. J.S.C.
On 16th October, 1989, I allowed the appellants' appeal, I indicated then
that I would give my reasons for so doing today. I now proceed to do so. This
appeal is concerned with the admissibility of what is undoubtedly a book in a
bound volume sought to be put in evidence in the following circumstances in the
course of the following evidence of the 1st defence witness, the 2nd defendant
in this action: I
know the plaintiff Company. I know the first defendant Company in this suit. I
know the first witness for the plaintiff in this suit. I am the founder the
chairman of the first defendant company in this suit. Between 1975 and 1976 the
plaintiff had been a member of the first defendant company. On the inception of
the first defendant company, the plaintiff was not a subscriber of the
memorandum and Articles of Association of the first defendant company. At
a general meeting of the first defendant company held in Canada, I was
authorised to approach Mr. Chika Akanu Agu, the Chairman of the plaintiff
company and the first witness for the plaintiff amongst others to invite them to
become members of the first defendant company The
minutes of the meeting at which I was authorised to approach Mr. Chika Akanu
Kalu Agu to become a member of the first defendant's company should appear in
the minutes book of the first defendants company This
is the minutes book of the first defendants company. I seek to tender it. (The
defence has objection. He says it does not comply with the provision of Section
382 of the Companies Act, 1968 in that it does not conform with the precautions
laid down in that Section I also cite the case of Oruwari and Ors. v. Okunna and Ors. Suit No. FRC/L/77/74. I also refer the Court to the case of Onwuka V. Taywani and Ors. 1968 2 Africa Law Rep. Commercial also 1965 L.L.R. 62 at p.70. Also Hearts of Oak Assurance Coy. Ltd. V. James Flower 1936 Ch. D. P.76 The
objection was upheld. The Minutes Book was rejected by the learned Judge,
Osakwe, J., in his ruling of 4/3/83. In coming to this conclusion he held as
follows: I
therefore hold the view that this Minute Book, sought to be tendered by the
defendants in this case, which, as I have seen it, are typed loose Book,
does not constitute Minutes Book under the provisions of Section The
learned trial Judge permitted himself to be guided by the decision of Onwuka
v. Taywani & Ors. (1965) High Court of Lagos Law
Reports, page Companies
Act, 1929 (U.K.). The
ruling of Osakwe, J., was confirmed by Court of Appeal, Enugu Division. This
appeal involves the construction of the following provisions of the Companies
Act, 1968, sections 138 and 382 thereof: 138
(1) Every company shall cause minutes of all proceedings of general meetings, all
proceedings at meetings of its directors and, where there are managers, all
proceedings at meetings of its managers to be entered in books kept for that
purpose. (2) Any such minute if purporting to be signed by the chairman of the meeting
at which the proceedings were had, or by the chairman of the next succeeding
meeting, shall be evidence of the proceedings. (3) Where minutes have been made, in accordance with the provisions of this
section, of the proceedings at any general meeting of the company or meeting of
the directors or managers, then until the contrary is proved, the meeting shall
be deemed to have been duly held and convened and all proceedings had thereat to
have been duly had, and all appointments of directors, managers or liquidators
shall be deemed to be valid.
(4) If a company fails to comply with subsection (1) of this section, the company and every officer of the company who is in default shall be liable to a fine of fifty pounds. Section
382:- (1) Any register, index, minute book or book of account required by this
Decree to be kept by a company may be kept either by making entries in bound
books or by recording the matters in question in any other manner in accordance
with accepted commercial usage.
(2) Where any such register, index, minute book or book of account is not kept by making entries in a bound book, but by some other means, adequate precautions shall be taken for guarding against falsification and for facilitating its discovery and where default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a fine of fifty pounds, and where the offence is a continuing one, shall in addition be liable to a fine of five pounds for every day during which the default continues. Section
12 of the Companies Act, 1929, U.K. is in pari materia with section 138 of
our Companies Act, 1968. Section 120 of the 1929 Act U.K. is the same as section
145 of the Companies Act, 1948 (U.K.). It
is helpful too to refer to section 436 of the Companies Act, 1948 U.K. which
says: 436
Form of registers, etc. (1) Any register, index, minute book or book of account required by this Act
to be kept by a company may be kept either by making entries in bound books or
by recording the matters in question in any other manner. (2) Where any such register, index, minute book or book of account is not kept by making entries in a bound book, but by some other means, adequate precautions shall be taken for guarding against falsification and for facilitating its discovery, and where default is made in complying with this subsecti |