In The Matter Of Companies Act In Re: Chief Saliu Bolaji Bakare V. In The Matter Of Bakado Line Ltd. (1969)
LawGlobal-Hub Lead Judgment Report
This appeal arose from a ruling of Caxton-Martins J. in the High Court of Lagos during an argument arising out of a petition for winding up the Bakado Line Ltd., a company incorporated under the Companies Act, Cap.37, now replaced by the Companies Decree.
It would appear that at the hearing of the petition, counsel for the petitioner after presenting the Petition for winding up and affidavits in support closed his case. The teamed judge then addressed counsel for the respondent (The Bakado Line Ltd.) who also replied that he was resting his case on his answer to the Petition and the affidavits filed in support.
At that stage, counsel for the petitioner made an application to the Court that he would like to cross-examine the deponent to the affidavits in support of the answer.
PAGE| 2 This application was opposed on the ground that the case for the petitioner had been closed and it would mean calling, further evidence. After hearing arguments on both sides, the learned judge m a reserved judgment, rightly in our view, granted the application and ordered the attendance of the deponent to the affidavit for cross-examination. As soon as the application was granted counsel for the respondent made a similar application for the deponent to the affidavits in support of the petition for winding up be called up for cross-examination.
The application was opposed but the judge ruled on the ground that since the application of the petitioner’s counsel had been granted the justice of the matter would be best met by granting the application of the other. He therefore granted leave to cross-examine the deponent to the affidavits in support of the petition.
The petitioner is aggrieved by this ruling and has appealed to this Court. Perhaps at this stage it should be mentioned that the respondent’s counsel filed on behalf of his client a notice that he intended at the hearing of the appeal to contend that the decision allowing the respondent to be cross-examined be varied. At the hearing of the appeal, however, counsel for the respondent said he meant this to be a cross-appeal.
As however, there was no argument by counsel on this notice, we make no further comments on it. It seems to us from the argument of counsel before the court below and in this Court that it is argued that under Order 38, Rule 2(3) Rules of the Supreme Court in England a deponent to an affidavit in support of a petition for winding up or a deponent to an affidavit to an answer by the respondent, is liable to be cross-examined on his affidavit on an application by the other side and if he failed to attend for cross-examination, his affidavit should be rejected and cannot be used as evidence. The point of difference appears to be at what point during the proceedings the application to call the deponent for cross-examination should be made.
The view we have taken of the matter is that when the first party relied on his petition and affidavit supporting it, if there was any question to ask him from his petition, this would be the time to cross-examine him. If he was not cross-examined then he would be entitled to close his case.
It is after this, that the 2nd party opens his case. If he relied on his answer and the affidavits supporting, the 1st party if he desired to do so, will cross-examine at this stage.
After the cross-examination the 2nd party closes his case. If the 2nd party failed to ask for leave to cross-examine 1st party before he (2nd party) opens his case, he cannot in our view, be said to follow the ordinary rules of procedure, if he (2nd party) asked for leave to cross-examine the 1st party subsequently.
PAGE| 3 To some extent winding up proceedings are special proceedings hence special provisions as to procedure are made in winding up rules.
If leave to cross-examine a deponent to an affidavit is granted and the deponent fails to appear as we point out before, his affidavit must be rejected, and where as in this case, a petitioner rested his case on his affidavits and closed his case, it would be unfair to him, if because he failed to appear for cross-examination in response to an order pursuant to an application made after the close of his case, the only evidence in which he had relied should stand in jeopardy of being rejected.
In the case of Stauss & Anor. v. Goldshmidt & Ors. (1892) 8 T.L.R. 239, where the circumstances were not dissimilar, the Court held that it would be wrong to accede to an application at that stage for the cross-examination of a deponent whose affidavit had already been accepted in evidence legitimately. Lord Coleridge, C.J. at page 240 of the report stated that:- “The affidavit had already been used and to reject it now would be to displace the defendants from a position they now legally occupied.”
We think that in the circumstances of the present case, the application to cross-examine the deponent to the affidavits of the petition was made too late and that the judge was wrong to have granted it.
The appeal is allowed and the order of Caxton-Martins J. in Suit M/144/68 made on the 21st January, 1969 whereby he ordered that the petitioner be produced for the purposes of cross-examination is set aside and it is ordered that the application to cross-examine him should be dismissed and this shall be the order of the court. The respondents will pay the costs of this appeal fixed at 25 guineas.
Other Citation: (1969) LCN/1725(SC)