Durumugo Resources Limited V. Zenith Bank PLC (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Federal High Court delivered by Hon. Justice P. I. AJOKU on the 5th July, 2012 wherein the Court below over ruled the objection of the Appellant challenging the jurisdiction of the Court to entertain the petition of the Respondent to wind up the Appellant company for being unable to pay its debts.

The Appellant had taken a loan from the Respondent on 17th October, 2007 and since then has failed to repay. The Respondent by way of a petition approached the Federal High Court seeking that the said Appellant company be wound up by the Court under Sections 409 (a) and 401 (1) (b) of the Companies and Allied Matters Act Cap C20 LFN 2004.

The Appellant filed a preliminary objection challenging the jurisdiction of the Court to entertain the said objection. The trial Court over ruled and assumed jurisdiction. Dissatisfied with the said ruling, the Appellant filed a Notice of Appeal dated 17th day of July, 2012 distilling 3 grounds of appeal.

The Appellant filed its Appellant’s brief of Argument dated 22nd day of February, 2013

1

filed on the same day but deemed on the 14/10/15 wherein it formulated 2 issues for determination as follows:

“1. Whether the learned trial judge Coram P. I. AJOKU, J. was right when he dismissed the objection of the Appellant against the hearing of the respondents’ petition when the state of indebtedness of the Appellant was in dispute in that:

a. The Appellant fervently disputed its indebtedness to the Respondent.

b. The Appellant is solvent, and operates as a growing concern

2. Whether the learned trial judge Coram P. I. Ajoku, J., was right when he suo motu raised the issue of the admissibility of Exhibits ‘A’ and A1′ attached to the Appellant’s Notice of Preliminary objection in his ruling dated 5/7/12 without calling on parties to address the Court or by oral evidence thereby infringing on the right of the Appellant to be fairly heard.”

The Respondent on its part filed its Respondent’s Brief on the 26th February, 2014 but deemed on the 14/10/15. It adopted the issues formulated by the Appellant but also raised a preliminary objection challenging the competence of this Honourable Court in entertaining the Appellant’s appeal.

2

The grounds upon which the objection is taken are as follows:

“a. The Appellants appeal is not as of right and needs a leave of Court before an appeal can lie to the Court of appeal.