Akebono Industrial Company Nigeria Limited & Ors V. Obinya Plastics Limited & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the leading Judgment)

By a petition dated the 29th day of April, 2010 and filed on the 5th May, 2010, the 1st, 2nd, 3rd and 4th respondents (as petitioners), prayed the Federal High Court sitting in Owerri for the following orders against the appellants and the 5th to 17th respondents to wit:

“(1) That 1st respondent be wound up by the court under the provisions of the Companies and Allied Matters Act.

(2) AN ORDER that the assets of the 1st respondent be shared in accordance with the shareholding structure between the petitioners and the 1st respondent.

(3) Any order that may be made in the circumstances.”

The facts which are relevant to the determination of this case are as contained in the petition as the appellants are not challenging any of the facts averred and even referred to these facts in their brief of argument. The salient facts as contained in paragraph 5 of the petition ire as follows:

1) The 1st to 3rd respondents were allotted shares of the 1st appellant and at this time the 4th respondent was already a shareholder in the said 1st-3rd respondents. After the allotment of the shares, share certificates were issued to the 1st to 3rd respondents and the 4th respondent became a signatory to the bank accounts of the 1st appellant.

2) Later, the 1st to 4th respondents discovered that even after issuing share certificates to them, the 1st to 4th appellants failed to effect the relevant changes at the Corporate Affairs Commission but instead they added three fictitious names to wit:

(i) Aziz Kagu (ii) Madu Kagu and (iii) Atomids Amakwe all of Plot 75 Monguno Road, Maiduguri, Borno State.

3) Thereafter, the 1st-4th respondents found out that there was no reflection of the share capital paid for and allotted to them.

In paragraph 14 of the said petition, the 1st-4th respondents herein made the following concluding statements to wit:

“14. The petitioners shall on the following grounds contend at the hearing that the 1st respondent has no lawful directors or shareholders and accordingly that a company without Directors/Shareholders has seized to exist:

(a) The Search Report has as Directors/Shareholders the names listed in sub-section 7 (b) above.

(b) The purported Annual Returns have other diverse names, some including a dead person, other including persons unknown and unidentified as Directors.