Gresham Life Assurance Society (Nig) Ltd v. The Registrar of companies Colonel A. A. Ochefu (1973)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N. 

This is an appeal from the judgment of George, J., Suit No. M/97/1969 delivered in the Lagos High Court on 10th August, 1970 and in which he dismissed the petition of the petitioners, herein appellants, for a winding-up order under the supervision of the court in accordance with the provision of the Companies Decree No. 51 of 1968. The petitioners’ prayers read as follows:

“(i) That the Gresham Life Assurance Society (Nigeria) Limited be wound up under the supervision of the court in accordance with the provision of the Companies Decree No. 51 of 1968.

(ii) That Babatunde Olusola Benson be appointed liquidator.

(iii) That the policy holders under the existing Nigerian policies who wish to continue paying premiums to keep their contracts in force until maturity be allowed to do so, which is the procedure usually permitted in these circumstances.

(iv) That the said liquidator so appointed be empowered to receive premiums on the policy and pay the sums assured by such policies as and when they come due.

(v) That the court may make such further order as shall be just.”

In their petition the petitioners, so far as is material in these proceedings, aver as follows:

“1. The Gresham Life Assurance Society (Nigeria) Limited (hereinafter called “the company”) was on the 18th day of November, 1968 by virtue of sections 393 and 369 of the Companies Decree, No. 51 of 1968 deemed to be incorporated in Nigeria.

2. That before the said 18th day of November, 1968 the company was a foreign company originally registered pursuant to the English Joint Stock Companies Act, 1844 with a deed of settlement dated the 3rd day of July, 1848 and later incorporated in England under the English Companies Act, 1862-1890 and registered in Nigeria under section 239 of the Companies Act, Cap. 37 of the Laws of the Federation of Nigeria.
3. That the capital of the said company is 100,000 pounds fully subscribed and is divided into 20,000 shares of 5 pounds each numbered 1,972,000 inclusive.
4. That the object of the company consists in the assurance of human life for its whole term or any less period . . .
5. That in pursuance of its said object, the said company had and operated a branch office at 5 -7 Balogun Street, Lagos, Nigeria, and the company was duly registered in Nigeria under section 239 of the Companies Act, Cap. 37 of the Laws of the Federation of Nigeria.
6. That by a letter dated 15th day of January, 1969 and in accordance with section 369 of the Companies Decree the principal officer of the company gave notice to the Registrar of Companies that the company does not intend to carry on business in Nigeria.
7. That as a result of the aforesaid notice given to the Registrar of Companies, it is now obligatory by virtue of sec. 396 (2) of the Companies Decree No. 51 of 1968 that the company be wound up under the supervision of the court.”

The petitioners, in pursuance of their business, appointed Mr Alfred Thomas Cain, General Manager of Guinea Insurance Company Limited (which is registered with an established place of business at 5 – 7 Balogun Street, Lagos) as their principal resident agent in Nigeria by virtue of a general power of attorney dated 4th June, 1969 (ex. ATC). Included in the power of attorney is the power to sue and defend suits in court, to instruct solicitors in connection therewith and to take proceedings for winding up the petitioners’ business in Nigeria. Mr. Cain duly appointed Messrs. S.O. Shobowale-Benson and Company as the petitioners’ solicitors and the latter thereupon caused notices of the petition for the winding-up to be advertised in the Official Gazette of the Federal Republic of Nigeria of 10th July, 1969 (ex. SAJ. 1) and in the Daily Times of Nigeria of 21st July, 1969 (ex. SAJ. 2).

On seeing the advertisement in the Daily Times of Nigeria, Colonel A. A. Ochefu, a Nigerian Army Officer and one of the creditors/policy holders of the petitioners, applied to the court for leave to oppose the petition. The petitioners were duly put on notice. After hearing the parties, the court ordered as follows:

“It is ordered that the applicant be granted leave to file an affidavit in opposition to the winding-up petition within 7 days.

It is further ordered that the respondents be granted within which to file counter-affidavit.”

Those referred to as the “respondents” in the above order are the petitioners. In pursuance of the above order, Colonel Ochefu filed an affidavit opposing the motion wherein he deposed, inter alia, as follows: