Pefti (Nig) Ltd V. Utuk & Anor (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

JOHN INYANG OKORO, J.S.C. (Delivering the Lead Judgment)

This is an appeal against the judgment of the Court of Appeal sitting at Calabar, delivered on 17th day of March, 2009 wherein the decision of the trial Court was set aside and the 1st Respondent’s appeal allowed.

The brief facts of the case which has now led to this appeal are that the 1st Respondent’s father, one Okon Udo Utuk (now late and substituted with the 1st Respondent) filed suit No. FHC/CA/MI/93 on 11th February, 1993 wherein he petitioned the Court for winding up of UTUKS CONSTRUCTION & MARKETING COMPANY LIMITED. The petition was heard and the company wound up by order of Court on 26/6/1995.

While the said petition was pending at the trial Court, some landed properties belonging to the company were sold off by an auctioneer appointed by Mercantile Bank of Nigeria Plc to the Appellant in satisfaction of a Mortgage Deed executed between the company and the bank.

​The 2nd Respondent who was appointed the provisional liquidator, to take over and manage the properties of the company in the interest of creditors and contributors, upon becoming aware of the sale of the properties in a public auction, filed a motion on notice dated 26th January, 1995 seeking an order to void the advertisement and sale of the properties. The properties sold on public auction by Ben Ekpo & Company of No. 58, Iboko Street, Uyo Auctioneer to Mercantile Bank Plc are as follows:-

1. No. 45 Ekpanya Street, Uyo
2. No. 50 NEPA Line Uyo
3. Two (2) number storey building along Ekpri Nsukara road, Uyo
4. No. 44 Brook Street, Uyo

The motion also sought an order vesting the properties in the custody of the Provisional Liquidator for the purpose of valuation. The 1st Respondent deposed to a 9 paragraphs affidavit in support of the application while the company’s secretary, one Engineer Bassey Okon filed a counter affidavit opposing the application.

On 23rd May, 1995 the learned trial Judge validated the sale of those properties except the property situate at No. 44 Brooks Street, Uyo which was set aside on the ground that both Union Bank and Mercantile Bank have contending legal charges on the property.

​Dissatisfied with the ruling of the trial Court, the 1st Respondent appealed to the Court of Appeal which in its said judgment delivered on 17th day of March, 2009 allowed the appeal, set aside the ruling of the trial Court and voided the sale of those properties and ordered that they be vested in the custody of the liquidator in trust for members of the company and creditors.

Aggrieved by that decision, the Appellant has now appealed to this Court on 3 grounds contained in its amended notice of appeal dated 5th September, 2022.

Learned counsel for the Appellant, Yakubu Maikasuwa, Esq; distilled a sole issue for determination in the Appellant’s amended brief of argument filed on 6th September, 2022 as follows:-

” Whether the 1st Respondent’s appeal at the lower Court initiated by the Notice of Appeal dated 28th July, 1993 against the ruling of the trial Court delivered on 23rd May, 1993 is competent having regard to the provisions of Section 24(2)(a) of the Court of Appeal Act and Section 422(9) of the Companies and Allied Matters Act, 1990.”

​Francis Ekanem, Esq, and Austin Erhabor, Esq, of counsel for 1st and 2nd Respondents respectively both adopted the lone issue formulated by learned counsel for the Appellant in their respective briefs of argument deemed properly filed on 11th October, 2022.

Arguing the issue nominated for determination, learned counsel for the Appellant submitted that the ruling of the trial Court in suit No. FHC/CA/MI/1993 upon which the 1st Respondent’s appeal at the Court below was based, is an interlocutory decision. Thus, the statutory period allowed for an appeal to be filed going by the provision of Section 24(2) (a) of the Court of Appeal Act, is 14 days.

Learned counsel contended that the 1st Respondent’s appeal against the ruling delivered on 23/5/1993 having been filed on 28/7/1993, about 64 days after the ruling, without leave of Court as prescribed by Section 24(2)(a) of the Court of Appeal Act for interlocutory appeals, was incompetent.