Unibiz Nigeria Limited. V. Commercial Bank (Credit Lyonnais (Nig.) Limited) (2005)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

The appellant is the defendant. The respondent is the plaintiff. The appellant owed the respondent some money which the respondent claimed was N77,194,576.30 as at the end of September, 1999. The appellant failed to pay the amount. The respondent instituted an action by way of an originating summons for and on behalf of the receiver/manager against the appellant. The respondent asked for the following orders:

“1. An order of this honourable court directing the receiver to take steps as may be necessary to realize the assets of the respondent with a view to paying its outstanding to applicant.

2. An order of this honourable court restraining the respondent, its agents, privies and assigns including but not limited to its directors, and officers from doing anything that would prevent the receiver from performing his lawful duties as a receiver.”

The trial court granted the two orders. Dissatisfied, the appellant appealed to the Court of Appeal. While the appeal was pending, the appellant, through its Managing Director, Mr. Sunil Bhojwani, broke the gate of the appellant’s premises under receivership, in company of armed men in plain clothes, and moved away all cars and vehicles along with other assets in the premises under receivership.

The respondent, by an application dated 19th November, 1999 prayed the Court of Appeal for the following orders:

1. An order directing the defendant/appellant and more particularly its Managing Director and Chief Executive, Mr. Sunil Bhojwani to return to the premises of Unibiz Nigeria Limited (now in receivership) at 16 Idowu Taylor Street, Victoria Island, Lagos, all cars and vehicles unlawfully and forcibly removed from the premises of the said company on the 10th of November, 1999.
2. In the event that any or all of the said cars and vehicles have been sold, an order directing the defendant/appellant to disclose the names of the purchasers, the amount for which they were sold, and the payment to the Chief Registrar of the court of the amount realized from such sale.
3. An order committing the Managing Director/Chief Executive Officer of Unibiz Nigeria Limited to wit: Mr. Sunil Bhojwani to prison for aiding and abetting the flouting of the order of the High Court dated the 26th of October, 1999 which order was duly served on him.”

The appellant, on its part, filed an application dated 29th November, 1999 praying for the dismissal or striking out of the respondent’s application dated 19th November, 1999 on the ground that the respondent lacked locus standi to make the application. Both applications were argued together. The Court of Appeal held that it cannot at that stage decide on the issue of locus standi which was the fulcrum of the main appeal.

The court however made the following orders:

“1.The appellant and more particularly Sunil Bhojwani, Managing Director and Chief Executive, should as a matter of urgency return to the premises of the appellant (now in receivership) all the nine Toyota Camry Saloon cars, one Toyota Bus and one Daewoo Racer Saloon car forcibly removed from the said premises of the said appellant at 16, Idowu Taylor Street, Victoria Island,Lagos on the 10th November 1999.

2. In the event that any or all the said cars and vehicles have been sold, the appellant should fully account for the amount for which they were sold. Payment of the amount realized from such sale should be made to the Deputy Registrar of this court.”

Dissatisfied with the interlocutory decision, the appellant has come to this court. Brief were filed and exchanged. The appellant originally formulated the following three issues for determination:

“1. Whether the Court of Appeal was right in refraining from pronouncing on the locus standi of the respondent to bring the application leading to the decision of the court when it was manifestly clear that the respondent lacked the requisite locus standi in respect of the matter.

2. Whether the Court of Appeal did not lack jurisdiction to entertain the respondent’s application when the said application was not initiated in accordance with prescribed due process.
3. Whether the Court of Appeal should not have applied section 149(d) of the Evidence Act to resolve the issue as to whether or not the respondent took an inventory of the assets of the appellant on 27th October, 1999.”

The respondent formulated the following similar three issues for determination:

“1 Whether the Court of Appeal was right in refraining from pronouncing on the locus standi of the respondent to bring the application leading to the decision of the court.

2. Whether the Court of Appeal lacked jurisdiction to entertain the respondent’s application.
3. Whether the Court of Appeal was right not to have applied section 149(d) of the Evidence Act.”

The appellant withdrew issue No.1 when the appeal was heard. The issue was accordingly struck out. The appellant was therefore left with issues Nos. 2 and 3 which counsel argued.

Arguing issue No.2, learned counsel for the appellant, Mr. Babajide Koku, submitted that the order sought being one for injunction, the respondent ought to have complied with the provisions of Order IX rule 13(1) and (2) of the Judgment (Enforcement) Rules, Cap. 407. Citing section 72 of the Sheriff and Civil Process Act, learned counsel submitted that the proper procedure for enforcing an order of injunction is by the issuance of Forms 48 and 49 pursuant to the provisions of the Judgment (Enforcement) Rules, Cap. 407.