Bank Of Industry Limited V. Awojugbagbe Light Industries Limited (2018)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

The facts relevant for the determination of this appeal are these. The appellant and three others, as defendants filed a Motion on Notice wherein they contended that the plaintiff/respondents suit in an Ibadan High Court was incompetent, since the said plaintiff/respondent was in Receivership. Their contention was that the plaintiff/respondents suit could only be commenced by a Receiver. They urged the trial judge to strike out the suit.

The learned trial judge heard both sides and dismissed the motion. With that dismissal of the motion on Notice, the coast was clear for the plaintiff/respondent to proceed with his case.

The appellant was not satisfied with the Ruling, so he filed an appeal. The appeal was heard by the Court of Appeal, Ibadan Division. That Court agreed with the trial Court and dismissed the appeal.

The appellant was still not satisfied, this time with the judgment of the Court of Appeal, and so he filed an appeal to this Court.

Briefs of argument were filed and exchanged by counsel.

Learned counsel for the appellant T.A.B. Oladipo Esq

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filed an appellants brief on 11 October 2016 which was deemed duly filed and served on 4 July, 2017. He also filed a reply brief on 4 July 2017.

Learned Counsel for the respondent B. R. Omotoso, Esq filed a respondents brief on 22 May 2017 which was also deemed duly filed and served on 4 July, 2017.

The appellant formulated six issues for determination of this appeal. They are:

1. Whether the Court of Appeal was right in dismissing the appeal of the appellant without making finding on any of the issues of law that were raised in the brief of argument and reply brief of the appellant that the suit was instituted by the respondent when it was in receivership is incompetent and that on the proper construction of exhibit D1 and D2 there is an implied renewal of the appointment of the Receiver beyond the period of 3 months
2. Whether the Court of Appeal was right by not making finding on the specific issues of law that were raised before it, that on the admission of the Respondent that it lost the suit to challenge the appointment of the Receiver at the High Court, Court of Appeal and Supreme Court, the issue of validity

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of the appointment of the receiver cannot be reopened.

3. Whether in the absence of a competent plaintiff the Court can assume jurisdiction in a suit.
4. Whether the Court of Appeal was right by formulating in its judgment issues for determination that did not have their origin from the grounds of appeal of the appellant.
5. Whether the judgment of the Court of Appeal was not given without jurisdiction and a nullity same having been based on the Respondent’s action which had not been initiated in the trial Court by due process of law and upon fulfillment of the condition precedent to the exercise of the Court’s jurisdiction.
6. Whether the Court of Appeal was right in holding that the Respondent’s claims in the amended statement of claim conferred it with the right to seek the remedies claimed in the trial Court.

On his part, learned counsel for the Respondent formulated five issues for determination. They are: