FAILURE TO COMPLY WITH THE PROVISIONS OF THE WINDING-UP RULES ROBS THE COURT OF ITS JURISDICTION

CASE TITLE: ARGIJI PROPERTIES LTD v. AISHATU SHUAIBU IDRIS SABON BIRNI & ANOR (2018) LPELR-45858(CA)

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUGDMENT BY: TANI YUSUF HASSAN, J.C.A.

FACTS OF THE CASE: 
This is an interlocutory appeal against the Ruling of the Federal High Court, Abuja delivered on the 26th day of June, 2007 in Suit No. FHC/ABJ/PET/6/2006 by Hon. Justice B. F. M. Nyako.

The Respondents at the Federal High Court filed a petition and a Motion Ex-parte both on the 13th of September, 2006. The Motion Ex-parte prayed for the following orders:

1. An order of Interim Injunction, pending the determination of the Motion on Notice for Interlocutory Injunction restraining the Respondent, (appellant herein) its Directors, officers, agents or servants or any of them however, from removing or causing or permitting to be removed or taking any steps to remove out of jurisdiction of this Hon, Court any of the Company’s assets (money or goods) within the jurisdiction of this Court or from selling, disposing, alienating or transferring, charging or diminishing in value in any way howsoever the respective assets (money, goods or rand properties) within the jurisdiction and without prejudice to the generality of the foregoing in particular:

a. Any sums now or hereafter standing to the credit of the Respondent in at bank within the jurisdiction of this Court.

b. All landed properties, building within the Federal Capital Territory Abuja or elsewhere in Nigeria.

c. All motor vehicles registered in the name of Respondent, save that payment of staff salaries utility bill may be made by the Respondent.

2. An order of this Hon. Court directing the Respondent and Mrs Sariyu Olabisi Shu,aibu Sabon Birni, Managing Director and Chief Executive officer of the Respondent or any person sitting or exercising responsibility over the affairs of the Respondent to within 2 days of service of this order on the respondent make and serve on the petitioners’ solicitors an affidavit disclosing ail the assets of the Respondent, moveable and immovable, including lands, buildings, motor vehicles, bank accounts within or outside the jurisdiction of this Hon. Court, identifying with full particularity the nature of ail such assets and their whereabouts and whether the same be held in its name or held jointly or herd by nominees or otherwise on their behalf and without prejudice to the generality of the foregoing specifying:

a. The identity of all bank and other accounts in the Respondent sole name or jointly held or held by nominees or otherwise on their behalf and the sums standing to their credit in such accounts.

b. Any landed property, motor vehicles, generators, or other assets money or goods owned by the Respondent and the where about of the same and names and addresses of all persons who have or may have possession, custody or control of any such assets, money or goods, at the date of the service of this order.

3. An order of this Honourable Court appointing the Firm of Messrs Muhtari Dangana & Co., a reputable firm of chartered Accountants of plot 935 Azores Street, off Aminu Kano Crescent, Wuse 2 Abuja as Receivers/Managers to take immediate and full control of the Respondents Assets pending the hearing and determination of the substantive Motion on Notice for the appointment of a provisional liquidator. In the Alternative.

4. Directing the Deputy Chief Registrar of this Hon. Court or any fit and proper person to take immediate and full control of the Respondent’s assets pending the hearing and determination of the substantive motion on notice for the appointment of a provisional liquidator. ?

The Motion Ex-parte was supported by a 23 paragraph affidavit and five annexures marked as Exhibit “BSS1” – A Certified True Copy of the Memorandum of Association of the company, Exhibit “BSS2” – A Certified True Copy form CO2 of the Company, Exhibit “BSS3” certified True Copy of form CO7 on particulars of Directors of the Company, Exhibit “BSS4” – a letter and Exhibit “BSS5” is a caveat. On the 6th of October, 2006, the application was moved and the Federal High Court on a bench ruling granted the 2nd prayer on the motion ex-parte.

The appellant on the 25th of October, 2006 filed a Motion on Notice praying as follows:

1. An order setting aside the order made ex-parte by this Honourable Court dated 6th October, 2006 directing the Respondent/Applicant and Mrs. Sariyu Olabisi Shu’aibu Sabon Birni, Managing Director and Chief Executive officer of the Respondent/Applicant or any person sitting or exercising responsibility over the affairs of the Respondent/applicant to within 2 (two) days of the service of the order made and serve on the Registrar of this Honourable Court an affidavit disclosing all the assets of the Respondent/Applicant movable and immovable, including lands, buildings, motor vehicles, bank accounts within or outside the jurisdiction of this Honourable Court, identifying with full peculiarity the nature of all such assets and their whereabouts and whether the same be held in its name or held jointly or held by nominees or otherwise on their behalf and without prejudice to the generality of the forgoing specifying;

a) The identity of at bank and other accounts in the Respondent/Applicant’s sole name or jointly held or held by nominees or otherwise on their behalf and the sums standing to her credit in such accounts.

b) Any landed property, motor vehicles, generators or other assets, money or goods owned by the Respondent/applicant and the whereabout of the same and the names and addresses of all persons who have or may have possession, custody or control of any such assets, money or goods at the date of the service of this order, same having been made without jurisdiction and based on gross misrepresentation of facts.

2. An order striking out this suit.

3. And for such other or further order(s) as this Honourable Court may deem fit to make in the circumstances.

The application was supported by a twenty six paragraph affidavit. By the leave of Court, parties filed written addresses and adopted same. The Court on the 26th day of June, 2007 in its Ruling, refused the application, and struck out same. Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:
The Court determined the appeal on a sole issue couched as follows:
“Whether the trial Court was right when it failed to set aside the Ex-parte order of 6th October, 2006 same having been made in defiance of Rule 4 of the winding up Rules 2001 Cap C20 LFN, 2004, and upon incomplete facts, having lapsed/discharged by effluxion of time vide the operation of Order 9 Rule 12 of the Federal High court (Civil Procedure) Rules 2000.”

DECISION/HELD:
On the whole, the Court found merit in the appeal and accordingly allowed same. The order Ex-parte made on the 6th of October, 2006 was thereby set aside.

RATIO DECIDENDI:

• APPEAL – GROUND(S) OF APPEAL – Whether ground(s) of appeal as well as issue(s) formulated therefrom must arise from the decision appealed against and effect of failure thereof
• COMPANY LAW – WINDING UP – Effect of failure to comply with the provisions of the winding-up rules on the jurisdiction of the Court
• JUDGMENT AND ORDER – EX-PARTE ORDER – Effect of an ex-parte order made under a wrongful exercise of Court discretion