Ini Okon Udo Utuk V. The Liquidator (Utuks Construction Marketing Co. Ltd.) Anor (2009)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal by the appellant against part of the ruling of A, Abdu- Kafarati of the Federal High Court, Calabar, in Suit No. FHC/CA/M1/93 delivered on 23/5/95.

The brief facts of the case on appeal are as follows: The 1st respondent as the Liquidator and official Receiver filed a motion dated 6/1/95, seeking for an order declaring’ the advertisement and sale of the properties of Utuks Construction and Marketing Co. Ltd. void, which properties were sold on Public Auction by one Ben Ekpo & Company of No. 58, Iboko Street, Uyo, the .Auctioneer to Mercantile Bank Plc. The properties are:

1. No. 45, Ekpanya Street, Uyo.
2. No. 50 NEPA Line, Uyo.
3. Two (2) number Storey Buildings along Ekprii Nsukara Road, Uyo.
4. No. 44 Brooks Street, Uyo.

The said motion also sought for an order vesting the above named properties in the custody of the 1st respondent, who was for the provisional Liquidator.

The appellant in this appeal filed an affidavit in support of the 1st respondent’s motion together with some exhibits marked Exhibits A, A 1 and A2. Utuks Construction and Marketing Company ltd. filed a counter-affidavit through one Engr. Bassey Okon, the Secretary of the Company.

The 2nd respondent, who is the purchaser of the properties, the subject of this appeal also filed a counter-affidavit in opposition to the application filed by the 1st respondent. After hearing the submissions of the respondent’s counsel to the parties, the court in its ruling delivered on 23/5/95 set aside the sale of the property at 44 Brooks Street, Uyo, as being void and upheld the sale of the properties at:

(a) No. 45, Ekpanya Street, Uyo.

(b) No. 50 NEPA Line, Uyo.

(c) Two (2) number Storey Buildings along Ekprii Nsukara Road, Uyo.

Dissatisfied with the Ruling and Orders of the trial court, the appellant appealed to this court on two grounds. The grounds of appeal are as follows:

“GROUNDS OF APPEAL

1. That the learned trial judge erred in law in failing to make any findings of fact as to whether the sales carried out by the auctioneers appointed by Mercantile Bank of Nigeria Plc. during the pendency of the winding up proceedings were valid sales.

Particulars of Error

(a) The learned trial judge did not advert his mind to the issues of law canvassed by the parties in their affidavit evidence.

(b) The provisions of Sections 413 and 414 of the Companies and Allied Matters Decree, 1990, are mandatory and are in no way subject to the consent, or otherwise of the parties to the transaction.