Air Via Limt V Oriental Air Line Limited (2004)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, JSC

This is an appeal by the Appellant against the judgment of the Court of Appeal sitting at Lagos per Dahiru Musdapher. E.O. Ayoola J. C.A. (as they then were) and M.O. Onalaja. JJCA delivered on 20th April, 1998. wherein the lower court

allowed the appeal of the Respondent herein and struck out the Winding-up Petition filed by the Appellant before the Lagos Division of the Federal High Court.

The Appellant herein (as Petitioner) in the winding-up petition brought under the Companies and Allied Matters Act. Cap.59 of Laws of the Federation of Nigeria 1990 (hereinafter referred to in short as CAMA) had commenced the Winding-Up proceedings against the Respondent in the trial Court by filing the Petition at pages 3- 34 of the Record. The Petition was served on the Respondent and the petitioner (Appellant) brought an application to advertise the said petition, the relevant paragraphs giving rise to the action commenced in the Federal High Court of Lagos averring as follows:

“5. The petitioner states that on or about the 23rd day of November 1990, the Petitioner and respondent entered into a written Wet Lease Agreement (hereinafter called “the agreement”) for international and domestic civil air transportation for term of 2 (two) years commencing on the 12th day of December 1990. The petitioner shall rely on the Agreement in proof of this averment.

Further to the above, the Petitioner states that as at the 30th day of June 1991, when the sum of US $1, 431, 450.00 (One Million Four Hundred and Thirty One Thousand Four Hundred and Fifty United States Dollars) was due and payable by the Respondent to the Petitioner in respect of the agreement, the Respondent had only paid to the Petitioner the sum of US $590.305.00 (Five Hundred and Ninety Thousand Three Hundred and Five Dollars) thereby leaving as outstanding the sum of US $841.545.00 (Eight Hundred and Forty One Thousand Five Hundred and Forty Five Dollars) in its account with the Petitioner.

By mutual agreement of the parties, the sum of $17,600.00 (Seventeen Thousand Six Hundred US Dollars) was adducted from the aforementioned outstanding amount, bringing

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the total outstanding amount to $823,545.00 (Eight Hundred and Twenty Thousand, Five Hundred and Forty Five US Dollars).

The Petitioner states that as at 12th of July 1991, the sum of $823,545.00 (Eight Hundred and Twenty Three Thousand Five Hundred and Forty Five US Dollars) was outstanding against the Respondent, in favor of the Petitioner.

The Petitioner states that it continued to demand for the outstanding sum due to it after the termination of the Agreement, all to no avail.

The Petitioner states that upon its instructions, its solicitors, Messer, Babalakin & Co. of 24A Campbell Street Lagos, Nigeria, wrote a letter of demand to the Respondent for the outstanding amount due. However the respondent failed, refused and/or neglected to pay the same. The Petitioner shall rely on the letter dated 24th April 1992 written by Messrs Babalakin & Co. to the Respondent at the Adjudication of this action.

The Petitioner further states that by its letter dated 23rd April 1993 signed by a principal officer of the Petitioner and delivered at the Respondent’s head office at 217/219, Apapa Road, Iganmu, Lagos, it made a demand for the above mentioned amount outstanding from the Respondent and the Respondent has neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the Petitioner. The Petitioner shall rely on the said letter at the hearing of this petition.

The Petitioner states that the Respondent is unable to pay its debts.