CANSCO DUBAI LLC v. SEAWOLF OILFIELDSERVICES LTD & ANOR

CITATION: (2018) LPELR-43674(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON MONDAY, 15TH JANUARY, 2018Suit No: CA/L/1191/15

Before Their Lordships:

CHIDI NWAOMA UWA Justice, Court of AppealHAMMA AKAWU BARKA Justice, Court of AppealBOLOUKUROMO MOSES UGO Justice, Court of Appeal

BetweenCANSCO DUBAI LLC - Appellant(s)

And1. SEAWOLF OILFIELD SERVICES LIMITED2. MIKE IGBOKWE (SAN)(Receiver/Manager of Seawolf Oilfield ServicesLtd)

- Respondent(s)

RATIO DECIDENDI

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1. COMPANY LAW - RECEIVER/MANAGER: Duty of a person appointed receiver/manager of the whole or any part of the undertaking of acompany"It is not in doubt that the 2nd respondent was appointed Receiver/Manager of the 1st respondent by Asset Management Company ofNigeria (AMCON) an agency of the Federal Government, therefore, the 2nd Respondent is an agent of AMCON and was acting on behalf ofAMCON.See, paragraph 6 of the affidavit in support of the appellant's motion ex parte, page 100 of the records. The appellant having submittedits claims to an administrative body ought to have awaited the outcome of the internal process before resorting to the Court. There wasno decision/action taken on the claims before the 2nd Respondent (Receiver) before the petition was filed. The decision would havedetermined whether a winding up petition would be necessary or not. The reason why the appellant sought the appointment of aprovisional liquidator for which she obtained the ex-parte interim orders of 20th May, 2015 was for the preservation of the assets of the1st Respondent from dissipation, paragraph 15 of the affidavit in support of the motion ex-parte page 100 of the printed records, this wastaken care of by the appointment of the 2nd Respondent as a Receiver/manager of the 1st Respondent thus, making it unnecessary toappoint another person to perform the same functions being performed by the 2nd Respondent. Paragraph 15 reads thus:"The orders sought are principally meant to preserve the funds and assets of the 1st Respondent which will be used to liquidate the 1stRespondent's indebtedness to the petitioner and other creditors likely to be interested in the proceedings."The above deposition makes the interim orders granted by the lower Court on 20th May, 2015 unnecessary. The reason being that thefunctions of a liquidator and Receiver/manager are the same, they are appointed to perform the same/similar functions contrary to theview of the learned counsel to the appellant that their roles are different. Section 425 of the CAMA outlines the powers and functions of aliquidator while a combination of Section 393 of CAMA and Schedule Eleven of the same CAMA outlines the powers and functions of aReceiver/Manager. The above provisions were well outlined by the learned counsel to the Respondents contrary to the submissions of thelearned counsel to the Appellant that the appointment of the 2nd respondent to protect the interest of AMCON does not extend to theAppellant and any other creditor of the 1st Respondent. Also, contrary to the argument of the learned counsel to the Appellant that theappointment of a provisional liquidator was necessary as a next step to winding up proceedings and a means of protecting the assets ofthe 1st Respondent from being dissipated by the 2nd Respondent during the pendency of the winding up petition, I hold that theappointment of the 2nd Respondent as the Receiver/Manager of the 1st Respondent by AMCON should allay the fears of the Appellant inrespect of the assets of the 1st Respondent.The crux of the appeal is the preservation of the assets of the 1st respondent from dissipation for which the appellant went to the lowerCourt to seek orders of interim injunction ex parte to preserve the assets pending the appointment of a provisional liquidator who was tocarry out the same function on appointment. The lower Court was right in its view that since the 2nd respondent had been appointedReceiver/Manager of the 1st Respondent which the appellant had knowledge of; therefore, there should not have been any apprehensionon the part of the appellant that the assets of the 1st respondent would be dissipated. Part of the duty of a Receiver/Manager and aprovisional liquidator is to preserve assets and undertakings of the company.In the case of PROVISIONAL LIQUIDATOR OF TAPP INDUSTRIES LIMITED & ANOR v. TAPP INDUSTRIES LTD & ORS (1995) LPELR - 2928 (SC);(1995) 5 NWLR (PT. 393) P. 9, the Apex Court held that:"the main object of appointing a provisional liquidator is the preservation of the property of the company to be wound up, all otherconditions attached to any such appointment can only go towards strengthening that main objective and not derogate from suchprincipal objective." Similarly, the appointment of a Receiver/manager under Schedule 11 of CAMA is to preserve the assets of thecompany when it is in danger of dissipation amongst other functions. Their functions are similar and it was premature and anticipatory toappoint a provisional liquidator when the 2nd Respondent was already appointed Receiver/Manager for the same purpose for which theappellant were granted the interim orders that were discharged.I agree totally with the submissions of the learned counsel to the respondents that under Section 390 (1) and (2), the Receiver owes thecompany a duty at all times to act in the best interest of the company and not only to act as agent of his appointer, AMCON. For clarity,Section 390 (1) and (2) provide as follows:"390 (1) A Receiver or Manager of any property or undertaking of a company appointed out of Court under a power contained in anyinstrument shall, subject to Section 393 of this Act, be deemed to be an agent of the person or persons on whose behalf he is appointedand, if appointed manager of the whole or any part of the undertaking of a company shall be deemed to stand in a fiduciary relationshipto the company and observe the utmost good faith towards it in any transaction with it or on its behalf.(2) such a manager shall -(a) act at all times in what he believes to be the best interests of the company as a whole so as to preserve its assets, further its businessand promote the purposes for which itwas formed, and in such manner as a faithful, diligent, careful and ordinarily skillful manager would act in the circumstances;(b) in considering whether a particular transaction or cause of action is in the best interest of the company as a whole may have regardto the interest of the employees, as well as the members of the company, and when appointed by, or as a representative of a specialclass of members or creditors may give special, but not exclusive consideration to the interests of that class."The Receiver is to act in good faith and render account of all his activities pursuant to Section 398 of CAMA, the 2nd Respondent istherefore not only an agent of his appointer AMCON. I am at one with the submissions of the learned counsel to the respondents that theReceiver appointed under 390 of CAMA above is not different from any one appointed by any other means. On the functions of theReceiver/manager being similar to those of the provisional liquidator, see also, the case of NIGERIA BANK FOR COMMERCE AND INDUSTRYAND ANOR V. ALFIJIR (MINING) (NIG) LTD (1999) LPELR - 2015 (SC); (1999) 14 NWLR (PT. 638) P. 176; (1999) 12 SC (PT. III) P. 109, theSupreme Court held that:"A Receiver/manager whether appointed by a Court or under a deed of debenture as in this case, must be impartial and subject to theterms and conditions of his appointment." (per Kalgo, JSC at p. 25, PARAS D - F)."His Lordship Ogwuegbu, JSC at p. 34, PARAS A - E in the same case held that:"The 2nd Appellant by his appointment was required to manage the plaintiffs company with a view to the beneficial realization of thesecurity of the 1st appellant on whose behalf he was appointed, and in the performance of his duties, he owed a duty of care and goodfaith. See, Section 393 (2) of the Companies and Allied Matters Act, Cap. 59, of Laws of the Federation of Nigeria, 1990, which provides:"393 (2): A person appointed manager of the whole or any part with a view to the beneficial realisation of the security of those on whosebehalf he is appointed." All of the above debunks the argument of the learned counsel to the appellant that the 2nd respondent wouldonly be acting in the interest of the appointing body AMCON and not the company and the assets being dissipated which necessitated thepetition before the lower Court for the liquidation of a company already in Receivership when the same claims formed the basis of thepetition by the appellant which had been submitted to the 2nd respondent who was yet to consider and take a decision on the claims.The trial Court's view cannot be faulted that the petitioner is encouraged to await the consideration and determination of its claim by the2nd Respondent rather than bringing or filing a petition for the liquidation of a company already in receivership."Per UWA, J.C.A. (Pp.35-42, Paras. A-C) - read in context

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2. COMPANY LAW - WINDING UP: Whether notice of exparte interim order of injunction in a winding up proceeding must be served onthe parties against whom the order is sought"On the Respondent's Notice, the provisions of Order 4 of Companies Winding-Up Rules, Cap C20 Laws of the Federation, 2010 prohibitsthe presentation of ex-parte applications in winding up proceedings. I agree with learned counsel that such applications must be by wayof motion notice of which must be given to the parties against whom the order is sought. The service of the motion on persons to beaffected by the grant of the reliefs sought by such motions is required. see, PROVISIONAL LIQUIDATOR, TAPP INDUSTRY LTD V. TAPPINDUSTRY LTD (SUPRA) and ANAKWENZE & ORS V. TAPP INDUSTRY LTD (1992) 7 NWLR (PT. 252) 142 at 157, PARAS C - D. Therefore, theex-parte interim orders of injunction granted by the lower Court which were later discharged ought not to have been granted. The interimorders sought at the lower Court ought to have been served on the respondents so that the respondents could be heard before the orderof 20th May, 2015, short of this, it is a breach of the respondents' right to fair hearing which is enough to invalidate the proceedings ifallowed to stand. HONEYWELL FLOUR WILLS PLC V. ECOBANK NIGERIA LIMITED (2016) 16 NWLR (PT. 1539) 387 at 425 - 426. On thisnote, the decision of the lower Court is also affirmed on the ground of inappropriateness of the grant of the ex-parte interim orders ofinjunction in a winding up petition contrary to Order 4 of the Winding Up Rules."Per UWA, J.C.A. (Pp. 42-43, Paras. E-E) - read in context

3. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Reason why the court must first consider and resolve a preliminaryobjection whenever it is raised"It is trite that where a preliminary objection has been raised challenging the competence of part of the issues raised or the entire case,same has to be looked into and resolved first before going into the rest of the issues where only part of the issues is being objected to,but where it is the entire appeal, same would be looked into only if the objection fails, where it succeeds, it would dispose of the entireappeal."Per UWA, J.C.A. (P. 27, Paras. D-F) - read in context

4. PRACTICE AND PROCEDURE - CONSISTENCY IN PRESENTATION OF A CASE: Whether a party can maintain on appeal a casedifferent from that which was presented at the lower Court"It is a well-established principle of law that a party will not set out on appeal, a case different from what was canvassed and determinedat trial Court. See, ATANDA v. HON. COMMISSIONER FOR LANDS AND HOUSING, KWARA STATE AND ANOR (2017) LPELR - 42346 (SC) atpp. 30-31, PARAS E-A; DAGACI DERE VS. DAGACI EBWA (2006) 7 NWLR (PT. 979) page 382 at 420 - 421; UKPONG VS. COMMISSIONERFOR FINANCE (2006) 19 NWLR (PT 1013) PAGE 187 at 221 and AJIDE V. KELANI (1985) 3 NWLR (PT. 12) 248 at 269."Per UWA, J.C.A. (P.29, Paras. B-D) - read in context

5. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Aim/essence of a preliminary objection"...the aim or essence of a preliminary objection is to terminate a case at an early stage, to save time and energy considering a fruitlessmatter in a Court's proceedings. It is to foreclose the hearing of a matter to save time. In the case of an appeal, the hearing of the appealto save time. See, OKAFOR v. NWUDE (1999) 7 S.C. (PT 1) 106, YARO V. AREWA CONSTRUCTION LTD & ORS (2007) 6 SCNJ 418 and EFETv. INEC & ORS (2011) LPELR - 8109 (SC); (2011) 1 - 2 SC (PT. 111) P. 61; (2011) 7 NWLR (PT 1247) P. 423. In essence, where apreliminary objection is to only a ground and an issue which will not terminate the entire appeal, there is no point raising it, since theother grounds and issues would sustain the appeal and the main issue at stake."Per UWA, J.C.A. (P. 31, Paras. B-E) - read in context

6. PRACTICE AND PROCEDURE - ABUSE OF COURT/JUDICIAL PROCESS(ES): What constitute abuse of Court process"The abuse of Court process occurs where two similar processes are used in respect of the exercise of the same right. see, AGWASIM ANDANOR v. OJICHIE & ANOR (2004) LPELR - 256 (SC); (2004) 10 NWLR (PT. 882) P. 613; (2004) SC (PT 11) P. 160; OKORODUDU v.OKOROMADU (1977) 3 SC 21; OYEGBOLA V. ESSO OF WEST AFRICA INC. (1966) 1 ALL NLR 170, HARRIMAN V. HARRIMAN (1989) 5 NWLR(PT. 119) 6 and more recently OYEYEMI & ORS V. OWOEYE & ANOR (2017) LPELR - 41903 (SC). In CHIEF VICTOR UMEH AND ANOR V.PROFESSOR MAURICE IWUH AND ORS (2008) VOL. 41 WRN A at 18 LINES 5 - 10 (SC), the Apex Court described abuse of Court processthus:"It is settled law that generally, abuse of Court process contemplates multiplicity of suits between the same parties in regard to the samesubject matter and on the same issue. See, OGOEJEOFO v. OGOEJEOFO (2006) 3 NWLR (PT. 996) 205 and OKAFOR V. ATTORNEYGENERAL OF ANAMBRA (2001) 7 WRN 77; (2001) FWLR (pt. 58) 1127; (1991) 6 NWLR (PT 200) 659; (1991) 9 - 10 SC NJ 107. The bottomline of these authorities in regard to abuse of process is that, to institute an action during the pendency of another suit claiming the samerelief is an abuse of Court is to put an end to the suit..."Per UWA, J.C.A. (Pp. 33-34, Paras. C-D) - read in context

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CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading

Judgment): The appeal is against the Ruling of the Federal

High Court delivered on the 6th day of November, 2015 in

Suit No. FHC/L/CP/677/2015 upholding the Respondents'

Preliminary objection and dismissing the Winding Up

Petition filed by the Appellant as petitioner.

The background facts are that the Appellant filed a Winding

Up Petition at the lower Court dated 12th May, 2015 in

praying that the 1st Respondent may be wound up by the

Court under the provisions of the Companies and Allied

Matters Act, CAP C20, Laws of the Federation of Nigeria,

2004.

The appellant also filed a Motion Ex-parte dated 12th May,

2015, seeking preservative Orders of injunction and leave

for the advertisement of the winding up proceedings. On

the 2nd day of June, 2015, the appellant, having complied

with the order of the lower Court to advertise the Winding

up Petition, filed a Motion on Notice seeking the Order of

the lower court to appoint a provisional liquidator.

The Respondents filed a conditional Notice of intention to

appear in the Petition and a Motion on Notice dated 2nd

June, 2015. The

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Appellant's Motion on Notice sought an order discharging

and/or vacating the interim orders of injunction and/or

striking out the name of the 2nd Respondent from the

petition and striking out and/or dismissing the petition. The

Respondents further filed a Motion on Notice dated 12th

June, 2015 praying the Lower Court to stay or suspend the

execution of the interim orders of injunction pending the

hearing and determination of the Respondents' Motion on

Notice dated 2nd June, 2015.

The appellant filed a Counter Affidavit dated 19th June,

2015 to the Respondents' Motion on Notice dated 2nd June,

2015. The Appellant also filed a Counter Affidavit dated

24th June, 2015 to the Respondents' Motion on Notice

dated 12th June, 2015.

The Respondents' Motion on Notice dated 2nd June, 2015

was argued on the 26th day of October, 2015. In its Ruling

the lower Court dismissed the petition of the Appellant,

upheld the submissions of the Respondents and declined

jurisdiction to hear the petition and subsequently dismissed

the entire winding up petition. It is against the Ruling that

the Appellant has appealed to this Court being unhappy

with the outcome. The following

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issues were distilled for the determination of the appeal

thus:

Issue 1.

"Whether or not the function of a liquidator is in

tandem with the duties of a Receiver/Manager of a

company as provided for in Section 393 of the

Companies and Allied Matters Act, 1990 (Issue

arising from Ground A)

Issue 2

Whether or not the appointment of the 2nd

Respondent as the Receiver/Manager of the 1st

Respondent is sufficient to alley (sic) the Petitioner's

apprehension in respect of the dissipation of the 1st

Respondent's assets or funds in the bank. (Issue

arising from Ground B)

Issue 3

Whether or not the Appellant’s Winding-up Petition

was inappropriate in spite of its claims presented to

the 2nd Respondent. (Issue arising from ground C)

Issue 4

Whether or not the Honourable Court ought to have

vacated the order of Mareva injunction granted on the

20th of May, 2015 (Issue arising from ground D."

The Respondents on their part distilled the following two

issues for the determination of the appeal:

1. "Considering the facts and circumstances of the

Petition presented before the lower Court, whether

the lower Court was not

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right when it declined jurisdiction to entertain the

petition of the appellant (Grounds A, B, and C of the

Notice of Appeal).

2. Having regard to the petition presented before the

lower Court, vis-a-vis settled positions of the law,

whether the lower Court was not right when it

vacated/discharged its earlier ex parte orders of

interim injunction (Ground D of the Notice of

Appeal)."

In arguing his first issue, the learned counsel to the

appellant Qudus Mumuney Esq. with Tobi Rosiji Esq. relied

on his brief of argument filed on 15/3/16 but, deemed filed

on 18/10/17 and a reply brief filed on 3/10/17 but, deemed

filed on 18/10/17. The learned counsel adopted both briefs

in urging us to allow the appeal, set aside the Ruling of the

lower Court and direct the lower Court to determine the

winding up Petition filed against the 1st Respondent.

In arguing his first issue, it was submitted that the lower

Court in its Ruling held that the function of a liquidator is

in tandem with the duties of a Receiver/Manager of a

Company as provided for in Section 393 of the Companies

and Allied Matters Act, 1990 (hereafter referred to as

"CAMA") on this basis, the

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lower Court upheld the preliminary objection of the

Respondents and dismissed the Appellant's petition for

winding up. Further, that the Ruling is to the effect that the

appointment of a Receiver/Manager by a debenture holder

pursuant to Section 390 and 393 CAMA is equivalent to the

appointment of a Liquidator pursuant to the provisions of

Section 422 of CAMA and Rule 21 of the Winding Up Rules.

The trial Court’s Ruling implies that the appointment of a

Receiver/Manager forecloses the option of presenting a

winding up petition by a creditor company. It was

submitted that the institution of the receivership is

designed to safeguard the subject matter of security for the

benefit of the persons entitled to it or to protect same from

some damage or jeopardy which threatens it. See,

ATUANYA V. ATUANYA (1994) 1 NWLR (PT. 322) P.

572. Further, that receivership guarantees the debt or

other obligation owed by the debtor by ensuring the

preservation of the property pending the realization of the

security. It was argued that there is a clear difference

between a receiver/manager appointed by a debenture

holder pursuant to the provisions of Sections 390 and 393

of

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CAMA and the appointment of an official receiver by the

Court pursuant to Section 419 of CAMA. Sections 390, 393

(1) and (2), 422 and Rule 21 of the Winding Up Rules were

reproduced for clarity.

It was argued that from the provisions of Sections 390 and

393 (1) and (2) of CAMA, a Receiver/Manager appointed

pursuant to an instrument by a debenture holder is an

agent of the debenture holder for the purpose of securing

the assets of the debtor and nothing more. On the legal

status of a receiver/manager appointed by a debenture,

see, CHRISTLIEB PLC V. MAJEKODUNMI (2009) ALL

FWLR (PT. 472) 1042 at 1046. Further, that the purpose

of appointing a Receiver/Manager for a Company is to work

towards paying outstanding debt or redeeming security or

freeing property from some jeopardy for the benefit of

creditors or debenture holders or on whose behalf the

appointment is made. Such a Receiver/Manager would not

act in the interest of a third party and would not be bound

legally to settle debt due to third parties other than the

beneficiaries of the Receiver/Manager's appointment.

It was argued that the 2nd Respondent was appointed a

Receiver/Manager pursuant to an

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instrument in line with the provisions of Section 390 and

393 of "CAMA", such appointment being distinct from the

appointment of a Liquidator pursuant to Section 422 of

"CAMA" and Rule 21 of the Winding up Rules. It was

concluded on this issue that the Appellant's application for

the appointment of a provisional liquidator for the purpose

of the winding up proceeding was made in line with the

provision of the winding up rules and ought not to have

been dismissed by the lower Court. Further, that the

function of a liquidator under a winding up proceeding is

clearly different from the status of a Receiver/Manager in

receivership.

In the appellant's second issue, it was submitted that the

lower court in its Ruling encouraged the Appellant to wait

for the consideration and determination of its claim by the

2nd Respondent rather than bringing or filing a petition for

the liquidation of a company already in receivership. It was

submitted that the 2nd Respondent was appointed the

Receiver/Manager of the 1st Respondent by a Deed of

Appointment dated 10th December, 2013 by Asset

Management corporation of Nigeria ("AMCO") in exercise

of its powers set out in

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Section 48 of the Asset Management Corporation of Nigeria

Act 2010 ("AMCON Act") and by virtue of the Loan

Purchase and Limited Service agreement dated 31st

December, 2010. Section 48 of the "AMCON ACT" was

reviewed. While interpreting Section 390 of "CAMA", it was

argued that the sole aim of appointing the 2nd Respondent

by "AMCON" is for the purpose of realizing its debt from

the 1st Respondent and nothing more, see Section 393 (2)

of "CAMA".

It was further argued that the appointment of the 2nd

Respondent to protect the interest of "AMCON" does not

extend to the Appellant and any other creditor of the 1st

Respondent. It was argued that the 2nd Respondent is by

law seen as the agent of "AMCON" and as such, his only

obligation is to secure the assets of the 1st Respondent for

the purpose of realizing the debt owed to "AMCON" by the

1st Respondent pursuant to the Loan purchase and Limited

Service Agreement dated 31st December, 2010 and the

Deed of Appointment of the 2nd Respondent dated 10th

December, 2013 by "AMCON". It was contended that the

2nd Respondent's appointment is distinct from the

appointment subject to Section 389 of "CAMA".

It was

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submitted that the 2nd Respondent is not under any

obligation to protect the interest of the Appellant and is not

empowered by any statute or instrument to request for

submission of evidence of claim as his appointment does

not cover such action, reference was made to the Deed of

Appointment of Receiver/Manager. Further, that while the

winding up petition of the Appellant was subsisting, the

2nd Respondent in violation of the order of the lower Court

proceeded to advertise the sale of the 1st Respondent's

asset, this was: before the dismissal of the winding up

petition. It was argued that the appointment of a

provisional liquidator became necessary as the next step to

the winding up proceeding and as a means of protecting

the assets of the 1st Respondent from being surreptitiously

dissipated by the 2nd Respondent during the pendency of

the winding up petition. The duty of a provisional liquidator

was given as to preserve the company's assets before a

winding up order is made. See, PROVISIONAL

LIQUIDATOR OF TAPP IND. VS. TAPP IND. LTD

(1995) 5 NWLR (PT. 393) 9 at 40. We were urged to

hold that the appointment of the 2nd Respondent as the

Receiver/Manager of the

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1st Respondent by "AMCON" should not have and did not

in any way allay the apprehension of the Appellant in

respect of dissipation of the assets of the 1st Respondent.

On the appellant's third issue, it was submitted that the suit

that led to this appeal is a Winding Up Petition brought

pursuant to Section 408 (d) and 409 (a) of "CAMA" and the

Companies Winding Up Rules 2001, to the effect that only

creditors of a company whose debt remained unpaid three

weeks after demand for payment of same has been made

can bring a Winding Up Petition. It was argued that all the

petitioner was required to show in the petition before the

Court is the fact that it is a creditor of the Company, that

the debts owed to it, has been demanded from the

Company, and that the company is insolvent and unable to

pay the debt. See, YINKA FOLAWIYO and SONS LTD

VS. T.A. HAMMOND PROJECTS LTD (1977) FRCR 14.

It was argued that the particulars of the Winding Up

petition were given in paragraphs 7 - 18 of its claim against

the 1st Respondent. It was argued that from the above

reproduced paragraphs, the Appellant established its claim

before the lower Court as well as the fact that the

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1st Respondent is unable to pay its debt. It was stressed

that the Appellant's petition was filed in compliance with

the provisions of "CAMA" and the winding Up Rules.

Further, that the appointment of a Receiver/Manager does

not foreclose or prevent a creditor from filing a petition for

Winding Up of the Company in appropriate circumstance. A

Winding up proceeding being a process by which a

company may be dissolved or its existence brought to an

end, the provisions of Section 401 (1) of "CAMA" was

highlighted as well as Section 408 of "CAMA".

It was submitted that the Appellant's petition for Winding

Up the 1st Respondent was premised on Section 408 (d) of

"CAMA", while the essence of a receivership is to redeem

the security of creditors or debenture holders in cases of

defaulting facilities, the essence of a Winding Up

proceeding is to bring to an end the life of a company.

Consequently, that the appointment of a Receiver/Manager

under Section 390 and 393 of "CAMA" are not in tandem

with the appointment of a provisional Liquidator for the

purpose of Winding Up a Company. Further, that the

position of the law, on "Receivership" and "Winding Up

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Proceedings" is that by their respective nature, a Winding

Up proceeding may be initiated against a company even

though the company is in receivership, we were referred to

the provisions of Section 401 (1) of "CAMA". It was

reiterated that the essence of a winding Up proceeding is

to bring an end the life of a company which could be done

based on various circumstances such as where the

company is unable to pay a debt due to a creditor pursuant

to Sections 408 (d) and 410 (1) (b) of "CAMA". Another

circumstance upon which Winding Up proceeding may be

commenced against a company was given as where a

receiver satisfies itself that the company is insolvent

pursuant to Section 410 (1) (c) of "CAMA". Further, that

the rights of all the parties identified in Section 410 (1) of

"CAMA" to commence a Winding up proceeding are

independent and exclusive to them respectively, neither is

subject to the other. It was submitted that the lower Court

erred when it dismissed the Appellant's Winding Up

Petition in its entirety and directing the Appellant to wait

for the outcome of the activities of the Receiver/Manager. It

was argued that the lower Court presumed that the only

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time a Winding Up proceeding could be commenced in the

cause of receivership is where it is the receiver so

appointed that initiates Winding Up proceeding under

Section 410 (3) of "CAMA".

It was argued that the clear provisions of Section 410 (3) of

"CAMA" is to the extent that the initiation of a Winding Up

proceeding is not exclusive to "the official receiver"

attached to the Court but, it may be initiated by any other

person authorized by the provisions of Section 410 (1) of

"CAMA", including a creditor. See CHIEF THEODORE

EZEOBI SAN V. DAILY TIMES OF NIGERIA PLC

(2013) LPELR - 20815 (CA).

It was concluded on this issue that the Appellant's relief

under the petition is for the Winding Up of the 1st

Respondent on the ground that the 1st Respondent is

unable to pay its debt. Consequently, the dismissal of the

winding up Petition in its entirety on the basis that the

Appellant ought to have waited for the determination of the

claim by the 2nd Respondent is erroneous.

On the fourth issue, it was submitted that in the Appellant's

Motion Ex parte dated 12th May, 2015 seeking for an order

of mareva injunctions restraining the 1st Respondent from

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dissipating its assets pending the appointment of a

Provisional Liquidator and the affidavit in support of the

said motion clearly specified the condition indicated is in

line with the case of DUROJAIYE V. CONTINENTAL

FEEDERS (NIG) LTD (2001) 10 NWLR (PT. 722) P.657

at 659. It was argued that the Appellant gave the

particulars of the 1st Respondent's assets which were in

danger of being disposed of and satisfied the condition

precedent to the grant of the mareva injunction. It was

argued that to vacate the order of mareva injunction, the

Respondent must show that the condition for the grant of

the order did not exist. Further, that by the nature of a

mareva injunction, it is unnecessary to have a pending

motion or notice or an "ascertainable event" as argued by

the Respondents, before an order of mareva injunction is

granted by the Court. See, E.S.C.S. LTD VS. N.M.B. LTD.

(2005) ALL FWLR (PT. 265) 1805 at 1811 where the

preconditions for the grant of mareva injunction were

itemized. It was concluded on this issue that the ground

upon which the trial Court vacated the mareva injunction

was that same has become unnecessary since the 1st

Respondent was already

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under the receivership of the 1st Respondent, the above

ground was said to be unknown.

On the part of the respondents, in reaction to the

submissions proffered on behalf of the appellant, the

learned counsel to the Respondents Olabode Olanipekun

Esq., appearing with Bolarinwa Awujoola Esq, Olajide

Salami Esq. raised a preliminary objection in his motion on

Notice filed on 14/9/17, where he prayed as follows:

"1. AN ORDER of this honourable Court striking out

Ground D of appellant's notice of appeal dated 17th

November, 2015.

2. FURTHER TO (1) ABOVE, AN ORDER striking out issue

four in appellant's brief of argument dated 14th March,

2016 formulated from the said Ground D, along with the

arguments presented thereon.

AND FOR SUCH further order or orders as this Honourable

Court may deem fit to make in the circumstances."

The grounds upon which the application was brought are as

follows:

a. "Ground D of the notice of appeal does not arise from the

decision of the lower court.

b. Further to (a) above, Ground D is a misrepresentation of

the decision of the lower Court.

c. Arising from (a) and (b) above, Ground D of the notice

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of appeal is incompetent and liable to be struck out.

d. Further to (c) above, Issue four in appellant's brief is

predicated on an incompetent ground of appeal.

e. Further to (d) above, Issue four and all arguments

presented thereon are incompetent and liable to be struck

out."

The application was supported by a six paragraph affidavit

deposed to by Olajide Salami Esq., a Legal Practitioner in

the law firm of Wole Olanipekun & Co., counsel to the

Respondents/Applicants. The application was argued in the

Respondents' brief of argument filed on 14/9/17 but,

deemed filed on 18/10/17 at pages 3 - 7 which was adopted

and relied upon as the learned counsel’s argument in

support of the application. The learned counsel to the

Respondents in his argument, reproduced the orders the

appellant sought in their motion paper of 12th May, 2015

and the interim orders granted by the lower Court on 20th

May, 2015. The appellant's Prayers were for:

1. "AN ORDER OF INTERIM INJUNCTION restraining the

1st respondent from tempering (sic) with the funds in any

of the 1st respondent's bank account..."

2. AN ORDER OF INTERIM INJUNCTION restraining the

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1st respondent .... from tempering (sic) with, alienating,

tranferring ... the 1st respondent's moveable asset."

The lower Court granted the following interim orders:

1. "that the 1st respondent, its directors, staff,

management, employees, officers, agents, privies or any

other person or group of persons whatsoever under the 1st

respondent's authority or any other authority (howsoever

derived or sourced) are hereby restrained from operating,

withdrawing from or otherwise tempering (sic) with the

funds in any of the 1st respondents bank account under

whatsoever name or guise in any Bank or Financial

institution within Nigeria pending the appointment of a

PROVISIONAL LIQUIDATOR in furtherance of the petition

herein presented."

2. "that the 1st respondent, its Agent, Servants, and/or

privies from tempering (sic) with, alienating, transferring

or otherwise dissipating or otherwise appropriating the 1st

respondent's fixed and movable assets, properties,

machinery, tools of trade or other assets howsoever

described and called are hereby restrained pending the

appointment of a PROVISIONAL LIQUIDATOR in

furtherance of the Petition herein presented."

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It was submitted that, the Respondents later filed a motion

on Notice seeking several reliefs one of which was to set

aside/discharge its ex parte orders of interim injunction of

20th May, 2015. The lower Court in its Ruling vacated its

interim orders, part of which read as follows:

"in the circumstances of this case, the interim orders

earlier granted by this Court on the 20th of May, 2015 was

unnecessary… I hereby discharge and/or vacate the interim

orders of injunction granted by this Court on the 20th of

May, 2015."

It was submitted that there is a great difference between

the orders sought and granted by the lower Court which

was subsequently vacated/discharged and the complaint of

the appellant in Ground D of her grounds of appeal and

issue four (4) formulated therefrom. Further, that the order

vacated by the lower Court was misrepresented in the

grounds of appeal and the issue that has been faulted. See,

ILOABACHI VS. ILOABACHI (2000) 5 NWLR (pt. 656)

178 at 203. It was argued that the appellant has set up a

different case on appeal from what transpired at the trial

Court. It was argued that the issue of mareva injunction

was never

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presented or argued at the lower Court. It was argued that

ground D is incompetent and should be struck out. See,

AJIDE V. KELANI (1985) 3 NWLR (PT. 12) 248 at 269.

In response to the issues formulated by the appellant, the

learned counsel to the respondents formulated two issues

for the determination of the appeal as earlier highlighted in

this judgment.

The first issue in summary is whether the lower Court was

not right when it declined jurisdiction to entertain the

petition of the appellant? It was the argument of the

learned counsel that the appellate Court would only set

aside the decision of the lower Court only if the judgment is

found to be perverse, which was not the case here. It was

argued that the lower Court found that the appellant's

petition was premature and an abuse of Court process

since by filing claims before the 2nd respondent and

thereafter filing a winding up petition before the lower

Court, the appellant had a multiplicity of machinery in

motion in pursuance of the same rights or for the

attainment of the same purpose. See, AGWASIM VS.

OJICHIE (2004) 10 NWLR (PT. 882) 613 at 622 - 623.

It was stressed that the appellant's

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petition was speculative and abusive; we were urged to

affirm its dismissal by the lower Court. Further, that the

appellant ought to have waited for the outcome of the

pursuance of its claims before resort to any other remedy.

In respect of the claims the appellant presented to the 2nd

respondent, we were urged to note that the 2nd respondent

was appointed Receiver/Manager of the 1st Respondent by

Asset Management Company of Nigeria (AMCON) an

administrative body and an agency of the Federal

Government. It was argued that the 2nd Respondent is an

agent of AMCON which was conceded by the appellant who

ought to have waited for the outcome of its claims before

the administrative body before resort to the Court. It was

the contention of the learned counsel to the respondents

that the decision of the lower Court on the sameness of the

functions of a Liquidator and Receiver/Manager is

unassailable with reference to Section 425 of the

Companies and Allied Matters Act (CAMA) on the

powers/functions of a Liquidator on one hand and a

combination of Section 393 and Schedule Eleven of

"CAMA" on the powers/functions of a Receiver/Manager. It

was submitted that with

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the above provisions, the powers of the Liquidator and the

Receiver/Manager are in essence appointed to perform

similar functions contrary to the submissions of the learned

counsel to the appellant that their respective roles are

different. It was stressed that the duties and or functions of

the 2nd respondent as Receiver, and the duties of the

provisional liquidator sought to be appointed are one and

the same, in terms of the duty to preserve the assets and

undertakings of the company. We were urged to read

Section 393 of "CAMA" with Section 390 (1) and (2) of

"CAMA" to the effect that a Receiver appointed in the

manner the 2nd respondent was appointed owes its duties

to the company and must at all times act in the best

interest of the company contrary to the view of the

appellant that the 2nd respondent is only an agent to its

appointer without acknowledging the fact that the receiver

is bound to act at all times in the interest of the company. It

was concluded that the 2nd respondent is not only an agent

to his appointer. We were urged to resolve the appellant's

issues one, two and three against the appellant.

The learned counsel to the respondents

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argued his second issue, in addition to his motion on Notice

filed on 14/9/17 objecting to ground D and issue four in the

appellant's Notice of appeal and brief of argument

respectively, the issue as to whether the lower Court was

not right when it vacated/discharged its earlier ex - parte

orders of interim injunction? It was submitted that an order

of injunction cannot prohibit a completed act, in that if the

ex - parte orders of the lower Court are allowed to subsist,

it would have been superfluous and would have made in

vain. See, ADEOGUN V. FASHOGBON (2008) 17 NWLR

(PT. 1115) 149 at 193, to the effect that a Court would

not make an order that cannot be enforced.

It was argued that all the arguments proferred by the

appellant under its fourth issue are premised on the grant

of a mareva injunction by the lower Court whereas the

lower Court granted interim orders of injunction. It was

submitted that the appellant did not apply for a mareva

injunction and that reference was never made to the

requirements for obtaining a mareva injunction in the

motion ex - parte which led to the grant of the discharged

interim ex - parte orders. The principles of mareva

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injunction were not taken into account when the ex - parte

orders were granted. We were urged to resolve the

appellant's fourth issue against it and dismiss the appeal.

The learned counsel to the Respondents also filed a

Respondent's Notice on 14/9/17 deemed properly filed on

18/10/17 which was argued in the Respondents' brief of

argument contending that the decision of the lower Court

which gave rise to the appeal be affirmed on grounds other

than those relied on by the lower Court. The grounds relied

upon are as follows:

1. "That by the imperatives of Order 4 of the Companies

Winding -Up Rules, ex-parte orders are prohibited in

winding up proceedings.

2. Further to (1) above the ex-parte orders of the lower

Court were granted in violation of Order 4 of the

Companies Winding-Up Rules.

3. Arguments on the impropriety of presenting/granting ex-

parte orders in winding-up proceedings were canvassed

before the lower Court.

4. Although the decision of the lower Court in vacating the

ex-parte order is correct, it did not rely on grounds

available to it in discharging/vacating the ex-parte orders of

20th May, 2015.

5. Arising from

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(1) - (4) above, the decision of the lower Court ought to be

affirmed on other grounds."

A sole issue was formulated in the Respondents' Notice as

follows:

"Having regards to the provisions of Order 4 of the

Companies Winding-Up Rules, whether the lower Court had

jurisdiction to grant exparte orders in a winding-up

petition, as it did in the petition before it."

On the impropriety of ex-parte orders in winding up

petitions, reference was made to Order 4 of the Companies

Winding-Up Rules, Cap C20 Laws of the Federation, 2010.

It was submitted that the application should be by Motion

on Notice, to be served on persons to be affected by the

grants of the reliefs sought by such Motions. It was argued

that the lower Court was right to have discharged the ex-

parte orders in conformity with the position of the law. See

the Apex Court decision in PROVISIONAL LIQUIDATOR

TAPP INDUSTRY LTD VS. TAPP INDUSTRY LTD

(1995) 5 NWLR (PT. 393) 9, and ANAKWENZE & ORS

v. TAPP INDUSTRY LTD. (1992) 7 NWLR (PT 252) 142

at 157 PARAS C - D, a decision of this Court. Also,

HONEYWELL FLOUR MILLS PLC v. ECOBANK

NIGERIA LIMITED (2016) 16 NWLR (PT 1539) 387 at

425 - 426

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in which interim orders made ex-parte against the

Appellant were discharged by this Court. It was concluded

that the proceedings before the lower Court leading to the

grant of the ex-parte orders were in breach of the

Respondents' right to fair hearing which is enough to

invalidate the proceedings without the need to show the

same occasioned any damage or miscarriage of justice. See,

ADIGUN VS. AG OYO STATE (1987) 1 NWLR (PT 53)

678 at 721 - 722. PARA H - B and other authorities cited

and relied upon by learned counsel to the respondents. We

were urged to affirm the judgment of the lower Court on

the grounds of the illegality of the grant of the ex-parte

orders of injunction in a winding up petition as argued at

the lower Court premised on Order 4 of the Winding Up

Rules.

In the Appellant's reply brief filed on 3/10/17 but deemed

filed 18/10/17, the learned counsel to the appellant in

response to the respondents' Motion filed on 14/9/17

challenging ground D of the Notice of Appeal and the

Appellant's issue four, it was submitted that even though

the Appellant applied for interim orders of injunction, the

lower Court did not name it as such. It was argued

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that an interim order that has an effect of a Mareva

injunction could rightly be described as such. In defining

what a Mareva injunction is, it was likened to an order of

an interim injunction as sought before the lower Court

wherein the counter affidavit and address to the

Respondent's Motion at the lower Court, the appellant

argued that the nature of the order granted by the lower

Court was a Mareva Order. We were urged to retain the

appellant's issue four distilled from ground D of the Notice

of Appeal.

In response to the respondent's argument under their first

issue, it was submitted that the learned counsel to the

respondents misconceived Section 408 of the CAMA, 2004

and distinguished the facts in the present appeal from

those in UBA VS. MODE NIGERIA LIMITED (2000) 12

NWLR (PT 680) 16 at 22 - 21 referred to by the learned

counsel to the respondents, we were urged to

discountenance same.

In response to the second issue it was described that the

respondents' argument is misconceived, reference was

made to the appellant's resolution of her issues 1 - 3 in the

appellant's brief of argument.

In reaction to the

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Respondent's Notice, it was submitted that by virtue of

Order 9 Rule 4 of the Rules of this Court, the Respondents'

Notice was filed out of time on the other hand, without

conceding that it was filed within time, it was argued that

the Respondents' Notice was only in respect of part of the

ruling vacating the Order of Mareva Injunction and does

not touch on the order of the lower Court dismissing the

Appellant's petition. It was argued that the order made by

the lower Court was against the assets of the 1st

Respondent and not a person, therefore it could be brought

ex-parte and was properly brought ex-parte. We were

urged to allow the appeal.

It is trite that where a preliminary objection has been

raised challenging the competence of part of the issues

raised or the entire case, same has to be looked into and

resolved first before going into the rest of the issues where

only part of the issues is being objected to, but where it is

the entire appeal, same would be looked into only if the

objection fails, where it succeeds, it would dispose of the

entire appeal. The preliminary objection in the present case

challenged only ground D of the Appellant's

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Notice of Appeal and the Appellant's issue four formulated

therefrom.

The Appellant's prayer in her motion of 12th May, 2015

prayed for an "interim injunction" to restrain the 1st

respondent from tampering with the funds in any of the 1st

respondent's bank account and alienating, transferring the

1st Respondents moveable assets, page 98 of the printed

records of appeal. The lower Court on the 20th May, 2015

granted the interim orders as sought by the appellant. On

the 6th of November, 2015 the lower Court vacated the

interim orders of injunction earlier granted and held at

page 910 of the records thus:

"in the circumstances of this case, the interim orders

earlier granted by this Court on the 20th of May, 2015 was

unnecessary... I hereby discharge and/or vacate the interim

orders of injunction granted by this Court on the 20th of

May, 2015."

But, the appellant's Ground "D" of her Notice of Appeal

challenged the lower Court vacating the order of Mareva

injunction granted on the 20th of May, 2015. It is

noteworthy that the Ground "D" of the Notice of Appeal did

not reflect or challenge any part of the decision of the

lower Court being appealed

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against. The issue of grant and/or discharge of Mareva

injunction was not in issue and cannot arise now on appeal.

When the application ex parte for the grant of the interim

injunction that was subsequently discharged was moved,

there was no relief sought for a Mareva injunction, page

192 of the printed records. It is a well-established principle

of law that a party will not set out on appeal, a case

different from what was canvassed and determined at trial

Court. See, ATANDA v. HON. COMMISSIONER FOR

LANDS AND HOUSING, KWARA STATE AND ANOR

(2017) LPELR - 42346 (SC) at pp. 30-31, PARAS E-A;

DAGACI DERE VS. DAGACI EBWA (2006) 7 NWLR

(PT. 979) page 382 at 420 – 421; UKPONG VS.

COMMISSIONER FOR FINANCE (2006) 19 NWLR (PT

1013) PAGE 187 at 221 and AJIDE V. KELANI(1985) 3

NWLR (PT. 12) 248 at 269.

The learned counsel to the appellant in arguing his fourth

issue fully defined what a Mareva injunction is and the

conditions under which it could be granted. It is clear that

the order sought by the Appellant which was granted and

later discharged by the lower Court was an ex-parte order

of interim injunctions and not an order for a Mareva

injunction. The

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learned counsel to the Appellant in his reply brief had

argued that the ex-parte order granted by the lower Court

did not mention specifically the grant of interim orders in

its pronouncement. To this, I would say that the lower

Court granted the reliefs sought by the appellant as

applicant for interim orders pending the appointment of a

provisional liquidator. Again, the Appellant did not

challenge the order granted as worded by the lower Court.

Mareva injunction was not reflected anywhere, also going

by the definition of Mareva injunction as defined in the

appellant's reply brief. The orders granted and later

vacated did not qualify to be termed Mareva injunction. The

learned counsel to the appellant had also argued that the

interim orders granted are Mareva injunctions, I do not

agree with the line of argument as what was sought,

granted and later discharged at the lower Court was not an

order of Mareva injunction. I hold that ground 'D' of the

Notice of Appeal did not arise from the decision of the

lower Court being appealed against, it is incompetent as

well as the appellant's fourth issue formulated therefrom.

There is merit in the preliminary objection

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which is sustained. Ground 'D' of the Notice of Appeal and

the appellant's issue four are incompetent, both are hereby

struck out.

Before I go into the other issues, it is noteworthy that the

aim or essence of a preliminary objection is to terminate a

case at an early stage, to save time and energy considering

a fruitless matter in a Court's proceedings. It is to foreclose

the hearing of a matter to save time. In the case of an

appeal, the hearing of the appeal to save time. See,

OKAFOR v. NWUDE (1999) 7 S.C. (PT 1) 106, YARO V.

AREWA CONSTRUCTION LTD & ORS (2007) 6 SCNJ

418 and EFET v. INEC & ORS (2011) LPELR - 8109

(SC); (2011) 1 - 2 SC (PT. 111) P. 61; (2011) 7 NWLR

(PT 1247) P. 423. In essence, where a preliminary

objection is to only a ground and an issue which will not

terminate the entire appeal, there is no point raising it,

since the other grounds and issues would sustain the

appeal and the main issue at stake. In the present appeal,

ground 'D' of the Notice of Appeal which was challenged in

the preliminary objection was argued in the Appellant's

fourth issue and fully responded to in the respondent's

second issue, it would have been

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easier, better and time saving to have addressed the issue

of the competence or otherwise of ground 'D' of the Notice

of Appeal and the appellant's issue four in the main appeal.

The remaining three issues formulated by the appellant are

captured in the respondents' first issue which I will utilize

in resolution of the crux of the appeal which reads thus:

"Considering the facts and circumstances of the petition

presented before the lower Court, whether the lower Court

was not right when it declined jurisdiction to entertain the

petition of the appellant?"

From the deposition of the respondents in paragraph 5(viii)

of the affidavit in support of the respondents' motion of

2/6/15 before the lower Court, at page 237 of the printed

records, in paragraph 5 (viii) of the Respondents'

applicants' application it was deposed as follows:

"The 1st respondent and its receiver/manager are currently

treating the petitioner's claim."

The same claim formed the basis for the presentation of the

petition by the appellant which had been submitted to the

2nd respondent who was yet to determine same. The

appellant as petitioner did not wait for

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consideration and determination of its claim by the 2nd

Respondent which ought to have been done before filing a

petition for the liquidation of a company already in

receivership. By the claims filed before the 2nd Respondent

and the subsequent filing of a winding up petition before

the lower Court it is in other words, setting up in motion

multiple machinery to attain the same rights or for the

same purpose, which amounts to an abuse of Court

process. If the 2nd Respondent as Receiver/Manager paid

the claim presented before him, the basis for the petition

would have been lost and would end up being abandoned or

overtaken by events. The abuse of Court process occurs

where two similar processes are used in respect of the

exercise of the same right. see, AGWASIM AND ANOR v.

OJICHIE & ANOR (2004) LPELR - 256 (SC); (2004) 10

NWLR (PT. 882) P. 613; (2004) SC (PT 11) P. 160;

OKORODUDU v. OKOROMADU (1977) 3 SC 21;

OYEGBOLA V. ESSO OF WEST AFRICA INC. (1966) 1

ALL NLR 170, HARRIMAN V. HARRIMAN (1989) 5

NWLR (PT. 119) 6 and more recently OYEYEMI & ORS

V. OWOEYE & ANOR (2017) LPELR - 41903 (SC). In

CHIEF VICTOR UMEH AND ANOR V. PROFESSOR

MAURICE IWUH AND ORS

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(2008) VOL. 41 WRN A at 18 LINES 5 - 10 (SC), the

Apex Court described abuse of Court process thus:

"It is settled law that generally, abuse of Court process

contemplates multiplicity of suits between the same parties

in regard to the same subject matter and on the same issue.

See, OGOEJEOFO v. OGOEJEOFO (2006) 3 NWLR (PT.

996) 205 and OKAFOR V. ATTORNEY GENERAL OF

ANAMBRA (2001) 7 WRN 77; (2001) FWLR (pt. 58)

1127; (1991) 6 NWLR (PT 200) 659; (1991) 9 - 10 SC

NJ 107. The bottom line of these authorities in regard to

abuse of process is that, to institute an action during the

pendency of another suit claiming the same relief is an

abuse of Court is to put an end to the suit..."

I agree with the learned counsel to the respondents that

the appellant having presented its claims before the 2nd

respondent, it is an acknowledgment that the 1st

respondent would be able to meet up any debt obligation (if

any) and if the debt is satisfied by the 2nd respondent then

the contention that the 1st respondent would not be able to

pay its debts would have been baseless which makes the

appellant's petition speculative. This justifies the dismissal

of the

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petition by the lower Court of the claims presented to the

2nd respondent through a petition. The appellant ought to

have awaited the outcome, before resorting to another

remedy in the Court.

It is not in doubt that the 2nd respondent was appointed

Receiver/Manager of the 1st respondent by Asset

Management Company of Nigeria (AMCON) an agency of

the Federal Government, therefore, the 2nd Respondent is

an agent of AMCON and was acting on behalf of AMCON.

See, paragraph 6 of the affidavit in support of the

appellant's motion ex parte, page 100 of the records. The

appellant having submitted its claims to an administrative

body ought to have awaited the outcome of the internal

process before resorting to the Court. There was no

decision/action taken on the claims before the 2nd

Respondent (Receiver) before the petition was filed. The

decision would have determined whether a winding up

petition would be necessary or not. The reason why the

appellant sought the appointment of a provisional

liquidator for which she obtained the ex-parte interim

orders of 20th May, 2015 was for the preservation of the

assets of the 1st Respondent from dissipation, paragraph

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15 of the affidavit in support of the motion ex-parte page

100 of the printed records, this was taken care of by the

appointment of the 2nd Respondent as a Receiver/manager

of the 1st Respondent thus, making it unnecessary to

appoint another person to perform the same functions

being performed by the 2nd Respondent. Paragraph 15

reads thus:

"The orders sought are principally meant to preserve the

funds and assets of the 1st Respondent which will be used

to liquidate the 1st Respondent's indebtedness to the

petitioner and other creditors likely to be interested in the

proceedings."

The above deposition makes the interim orders granted by

the lower Court on 20th May, 2015 unnecessary. The

reason being that the functions of a liquidator and

Receiver/manager are the same, they are appointed to

perform the same/similar functions contrary to the view of

the learned counsel to the appellant that their roles are

different. Section 425 of the CAMA outlines the powers and

functions of a liquidator while a combination of Section 393

of CAMA and Schedule Eleven of the same CAMA outlines

the powers and functions of a Receiver/Manager. The above

provisions were

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well outlined by the learned counsel to the Respondents

contrary to the submissions of the learned counsel to the

Appellant that the appointment of the 2nd respondent to

protect the interest of AMCON does not extend to the

Appellant and any other creditor of the 1st Respondent.

Also, contrary to the argument of the learned counsel to the

Appellant that the appointment of a provisional liquidator

was necessary as a next step to winding up proceedings

and a means of protecting the assets of the 1st Respondent

from being dissipated by the 2nd Respondent during the

pendency of the winding up petition, I hold that the

a p p o i n t m e n t o f t h e 2 n d R e s p o n d e n t a s t h e

Receiver/Manager of the 1st Respondent by AMCON should

allay the fears of the Appellant in respect of the assets of

the 1st Respondent.

The crux of the appeal is the preservation of the assets of

the 1st respondent from dissipation for which the appellant

went to the lower Court to seek orders of interim injunction

ex parte to preserve the assets pending the appointment of

a provisional liquidator who was to carry out the same

function on appointment. The lower Court was right in its

view that since the

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2nd respondent had been appointed Receiver/Manager of

the 1st Respondent which the appellant had knowledge of;

therefore, there should not have been any apprehension on

the part of the appellant that the assets of the 1st

respondent would be dissipated. Part of the duty of a

Receiver/Manager and a provisional liquidator is to

preserve assets and undertakings of the company.

In the case of PROVISIONAL LIQUIDATOR OF TAPP

INDUSTRIES LIMITED & ANOR v. TAPP INDUSTRIES

LTD & ORS (1995) LPELR - 2928 (SC); (1995) 5

NWLR (PT. 393) P. 9, the Apex Court held that:

"the main object of appointing a provisional liquidator is

the preservation of the property of the company to be

wound up, all other conditions attached to any such

appointment can only go towards strengthening that main

objective and not derogate from such principal objective."

Similarly, the appointment of a Receiver/manager under

Schedule 11 of CAMA is to preserve the assets of the

company when it is in danger of dissipation amongst other

functions. Their functions are similar and it was premature

and anticipatory to appoint a provisional liquidator when

the 2nd Respondent was already

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appointed Receiver/Manager for the same purpose for

which the appellant were granted the interim orders that

were discharged.

I agree totally with the submissions of the learned counsel

to the respondents that under Section 390 (1) and (2), the

Receiver owes the company a duty at all times to act in the

best interest of the company and not only to act as agent of

his appointer, AMCON. For clarity, Section 390 (1) and (2)

provide as follows:

"390 (1) A Receiver or Manager of any property or

undertaking of a company appointed out of Court under a

power contained in any instrument shall, subject to Section

393 of this Act, be deemed to be an agent of the person or

persons on whose behalf he is appointed and, if appointed

manager of the whole or any part of the undertaking of a

company shall be deemed to stand in a fiduciary

relationship to the company and observe the utmost good

faith towards it in any transaction with it or on its behalf.

(2) such a manager shall -

(a) act at all times in what he believes to be the best

interests of the company as a whole so as to preserve its

assets, further its business and promote the purposes for

which it

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was formed, and in such manner as a faithful, diligent,

careful and ordinarily skillful manager would act in the

circumstances;

(b) in considering whether a particular transaction or cause

of action is in the best interest of the company as a whole

may have regard to the interest of the employees, as well

as the members of the company, and when appointed by, or

as a representative of a special class of members or

creditors may give special, but not exclusive consideration

to the interests of that class."

The Receiver is to act in good faith and render account of

all his activities pursuant to Section 398 of CAMA, the 2nd

Respondent is therefore not only an agent of his appointer

AMCON. I am at one with the submissions of the learned

counsel to the respondents that the Receiver appointed

under 390 of CAMA above is not different from any one

appointed by any other means. On the functions of the

Receiver/manager being similar to those of the provisional

liquidator, see also, the case of NIGERIA BANK FOR

COMMERCE AND INDUSTRY AND ANOR V. ALFIJIR

(MINING) (NIG) LTD (1999) LPELR – 2015 (SC);

(1999) 14 NWLR (PT. 638) P. 176; (1999) 12 SC (PT.

III) P.

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109, the Supreme Court held that:

"A Receiver/manager whether appointed by a Court or

under a deed of debenture as in this case, must be

impartial and subject to the terms and conditions of his

appointment." (per Kalga, JSC at p. 25, PARAS D - F)."

His Lordship Ogwuegbu, JSC at p. 34, PARAS A - E in

the same case held that:

"The 2nd Appellant by his appointment was required to

manage the plaintiffs company with a view to the beneficial

realization of the security of the 1st appellant on whose

behalf he was appointed, and in the performance of his

duties, he owed a duty of care and good faith. See, Section

393 (2) of the Companies and Allied Matters Act, Cap. 59,

of Laws of the Federation of Nigeria, 1990, which provides:

"393 (2): A person appointed manager of the whole or any

part with a view to the beneficial realisation of the security

of those on whose behalf he is appointed."

All of the above debunks the argument of the learned

counsel to the appellant that the 2nd respondent would

only be acting in the interest of the appointing body

AMCON and not the company and the assets being

dissipated which necessitated the petition before the

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lower Court for the liquidation of a company already in

Receivership when the same claims formed the basis of the

petition by the appellant which had been submitted to the

2nd respondent who was yet to consider and take a

decision on the claims. The trial Court's view cannot be

faulted that the petitioner is encouraged to await the

consideration and determination of its claim by the 2nd

Respondent rather than bringing or filing a petition for the

liquidation of a company already in receivership. I agree

with the submissions of the learned counsel that the

petition was premature and an abuse of the Court process.

The appellant's fourth issue covered by the Respondent's

second issue was earlier struck out under the preliminary

objection.

On the Respondent's Notice, the provisions of Order 4 of

Companies Winding-Up Rules, Cap C20 Laws of the

Federation, 2010 prohibits the presentation of ex-parte

applications in winding up proceedings. I agree with

learned counsel that such applications must be by way of

motion, notice of which must be given to the parties against

whom the order is sought. The service of the motion on

persons to be affected by the grant

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of the reliefs sought by such motions is required. see,

PROVISIONAL LIQUIDATOR, TAPP INDUSTRY LTD V.

TAPP INDUSTRY LTD (SUPRA) and ANAKWENZE &

ORS V. TAPP INDUSTRY LTD (1992) 7 NWLR (PT.

252) 142 at 157, PARAS C - D. Therefore, the ex-parte

interim orders of injunction granted by the lower Court

which were later discharged ought not to have been

granted. The interim orders sought at the lower Court

ought to have been served on the respondents so that the

respondents could be heard before the order of 20th May,

2015, short of this, it is a breach of the respondents' right

to fair hearing which is enough to invalidate the

proceedings if allowed to stand. HONEYWELL FLOUR

WILLS PLC V. ECOBANK NIGERIA LIMITED (2016)

16 NWLR (PT. 1539) 387 at 425 - 426. On this note, the

decision of the lower Court is also affirmed on the ground

of inappropriateness of the grant of the ex-parte interim

orders of injunction in a winding up petition contrary to

Order 4 of the Winding Up Rules.

In the final analysis, the appeal is without merit, same is

hereby dismissed. The decision of the lower Court is hereby

affirmed.

I award costs of N100,000.00 (One Hundred

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Thousand Naira) against the Appellant to the Respondents.

HAMMA AKAWU BARKA, J.C.A.: I Agree.

BOLOUKUROMO MOSES UGO, J.C.A.: I agree.

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Appearances:

Qudus Mumuney, Esq. with him, Tobi Rosiji ForAppellant(s)

Olabode Olanipekun, Esq. with him, BolarinwaAwujoola, Esq, Olajide Salami, Esq. and AbiolaIbadin for the 1st and 2nd Respondents.For Respondent(s)

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