Companhia Brasifeira De Infraestrutura (Infaz) V. Cobec Nigeria Limited (2018)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
The appellant, Companhia Brasifeira De Infraestrutura (INFAZ) filed a Winding Up Petition before the Federal High Court, Lagos on the ground that the relationship between the Petitioner, Respondent and the Respondent’s chairman, Chief Ogunbanjo, had deteriorated. And pursuant to Rule 10 of the Companies Winding Up Rules, 1983, the Petitioner brought a motion on notice dated 18 March, 1992 seeking an order to advertise the Petition filed.
The Respondent, in opposition to the application of the petitioner filed a 19 paragraphs affidavit opposing the Petition. The Respondent also filed a Motion on Notice dated 31 March, 1992 seeking an order of Court striking out/staying/dismissing the Petition filed.
The grounds for opposing the Petition were:-
(a) that the Petitioner was neither a creditor nor a contributory;
(b) that they are not one of the persons allowed to present a Petition under Section 407 of the Companies and Allied Matters Act 1990;
(c) that the Petitioner was not a party to the Joint Venture Agreement (PVA) entered into with Companhia
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Brosileira De Entrepostos E Commercio and the Nigeria partners;
(d) that the Petitioner is not a known legal entity;
(e) that Companhia Brasieira De Entrepostos E Commercio of Brazil was the only foreign shareholder known to the Respondent.
In opposition to the Motion by the Respondent, the Petitioner filed a 4 paragraph affidavit dated 5 July, 1992 annexing Exhibits AA – AA2.
In his ruling delivered on 3 November 1992, Edet J of the Federal High Court, Lagos struck out the Petition and the motion to advertise the Petition for being illegal. The trial Judge held that for the change of name of the Petitioner in Brazil to be legally cognizable in Nigeria, it must also conform with Section 31(3),(5),(6)(7) and (8) of the Companies and Allied Matters Act 1990. It was also held that the Petitioner, INFAZ of Brazil is not a legal person in Nigeria and therefore cannot be a creditor or shareholder in the Respondent’s Company.
The Petitioner was dissatisfied with the Ruling of the Federal High Court and filed a Notice of appeal containing two grounds of appeal. The Court of Appeal in dismissing the appeal held that since no foreign law,
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in particular Brazilian Law, governing the consequence of change in the name of the company was placed before the Court and none was pleaded, it follows that to legally effect a change of name, the Petitioner ought to have complied with conditions contained in Section 31 of CAMA.
The Court further held that once there is doubt as to the legal identity of a legal fiction or personality which has undergone metamorphosis by way of change in name as in the instant case, a Court of law must get that doubt cleared before allowing the new legal entity to proceed with a winding up petition.
Being aggrieved with the judgment of the Lower Court delivered on 26 November, 2003, the appellant further appealed to the Supreme Court in its Notice of Appeal dated 8 December, 2003 and filed on 19 December, 2003. The Notice of Appeal was amended by an order of Court dated 12 January, 2017 and filed on 18/1/2017 but was deemed filed on 11 April, 2017. The Amended Notice of Appeal contained three grounds of appeal from which the appellant distilled two issues in the Amended Appellant’s Brief also deemed filed on 11 April, 2017.
The two issues are:-
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Whether the Court of Appeal was right in holding that the Appellant ought to have complied with the conditionality contained in Section 31(1) to (8) of CAMA also enumerated in the judgment of the Court on page 267 of the record of Appeal. (Distilled from grounds 1 and 2 of the Amended Notice of Appeal).
Whether the Court of Appeal was right in holding that the appellant was not a contributing shareholder of the Respondent. (Distilled from Ground 3 of the Amended Notice of Appeal).The Respondent also amended its brief filed on 6 April, 2017 and was deemed duly filed on 11 April, 2017 in which it raised two issues for determination which are as follows:-
- Whether on the facts of this case and in law the Appellant/Petitioner has a locus to institute winding up proceedings against the respondent and/or
- Whether anyone not coming within the permissible persons under Section 410 of the Company and Allied Matters Act 1990 can make an application to the Court for the winding up of a company by way of Petition.This appeal stems from the statement by the Court below that if there is a change in the name of the foreign company evidence of compliance with the law
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of the land where it was incorporated must be given.
This Court decided in Saeby Jernstoberi Maskinfabric A/S v. Olaogun Enterprises Ltd. (1999) 14 NWLR (Pt. 637) 128 which was cited to the Court below that the principle of law that a foreign corporation, duly created according to the laws of a foreign state recongnised by Nigeria, may sue or be sued in its corporate name in our Courts is part of the common law.
The Court per Ayoola JSC at p. 146 went further to state:-
“It suffices to say that the appellant company which was admitted by the respondent to be a limited liability company with its registered office in Copenhagen properly sued in its corporate name.”In the Saeby Jernstoberi Maskinfabric A/S case (supra) it had been argued by counsel on behalf of the respondent that even though it may be a legal entity in its country of incorporation, it had no artificial personality in Nigeria since the Companies Act is silent on whether a company such as the appellant would be allowed to sue or not. This Court held that the submission was misconceived.At the trial Court Edet J. concluded that the plaintiff (petitioner) was duly
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incorporated under the laws of Brazil and the Company had changed its name (see page 102 of the record of appeal). And in the Lower Court Aderemi JCA (as he then was) made the following findings:-
- Going by the facts of the case as agreed by both parties Companhia Brasileira De Entreposotos E Commercia (COBEC) is a contributory.
- The Company, Companhia Brasiliera De Entreposotos E Commercial (COBEC) can justifiably bring the petition. (See pages 264 and 266 of the record.
The respondent did not cross – appeal against the above findings to the Court below or to this Court. The consequence in law is that the said findings are deemed to be correct. See: Standard (Nig.) Engineering Co. Ltd Anor v. Nigerian Bank of Commerce of Industry (2006) 7 NWLR (Pt.978) 198. Professor Kasunmu SAN who argued the appellant’s case submitted that there is a presumption under Section 149 of the Evidence Act that exhibits AA – AA2 represent the position of the law in Brazil on the change of name of the appellant until the contrary is proved by the respondent who did not challenge the authenticity of Exhibits AA – AA2. I entirely
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agree with this submission. Section 149 of the Evidence Act provides:-
“149. When any document is produced before any Court purporting to be a document which by the law in force for the time being in any official character claimed by the person by whom it purports to be signed, the Court shall presume –
(a) that such seal, stamp or signature, is genuine; and
(b) that the person signing it held, at the time when he signed it, the judicial or official character which he claims, and the document shall be admissible for the same purpose for which it would be admissible in the country where the document is produced.”
In the ruling of the High Court at page 102 of the record of appeal Edet J. said:-
“I have carefully studied the arguments of both sides. There is no denying the fact that COBEC of Brazil changed its name in Brazil to INFAZ of Brazil. Exhibits AA AA2 testify to that fact. If Exhibits AA AA2 accord with the Brazilian trade law, then INFAZ and COBEC are one and the same company in Brazil.”
In view of the finding of the trial Court that exhibits AA – AA2 accorded with Brazilian law on the change of name, it was
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wrong for the Court of Appeal to embark on a futile exercise seeking evidence of compliance with the Brazilian law governing change of name of the company and proceeding to hold that once there is doubt as to the legal fiction or personality which has undergone some metamorphosis by way of change in name and there is no disclosure as to the legality of the change in name, a Court of law and justice must get that doubt patently cleared before allowing a new legal entity to proceed with winding up petition.
If COBEC in Brazil was changed to INFAZ it follows that INFAZ is a contributory shareholder of the respondent company and therefore has the locus standi to apply for the winding up of COBEC (NIGERIA) LIMITED.
The appeal is meritorious and it is hereby allowed. The judgment of the Court of Appeal, Lagos delivered on 26 November, 2003 in Appeal No.CA/L/237/95 is hereby set aside. The matter is remitted to the Chief Judge of the Federal High Court for assignment of suit No.FHC/L/CP/M14/92 to another Judge other than Edet J. for expeditious hearing. Costs of N500,000.00 is awarded to the appellant against the respondent.
SC.139/2005