IPBC Nigeria Limited & Ors V. Ibpc UK Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment)

The Respondent Company is registered in the United Kingdom, which supplies and installs electronic security equipment to Banks and other establishments. It is also a holder of 40% equity in the 1st Appellant Company.

In a Petition for Winding Up dated 16/11/2006 and presented at the Federal High Court, Lagos, it prayed that the said 1st Appellant company “be wound up by the court under the provisions of the Companies and Allied Matters Act of 1990” [CAMA].

The three Appellants entered a conditional appearance, and thereafter filed a Notice of Preliminary Objection. The Grounds for their Objection are –

1. That the Petitioner [Respondent herein] is not a juristic person.
2. That the Petitioner lacks the locus standi to institute this Petition.

The Preliminary Objection is supported by a 12-paragraph Affidavit deposed to by Akpofure David lbru, a legal practitioner. To counter same, the Respondent filed a 4-paragraph counter-Affidavit deposed to by one Emmanuel Edet, a Litigation Clerk in the law firm of SOFUNDE OSAKWE OGUNDIPE & BELOGORE.

But that is not all; the Affidavits before the Court include a 3-paragraph Further Affidavit with paragraph 2 thereof containing sub-paragraphs (i) to (xi); a 2-paragraph Further Counter-Affidavit; and a Further and Better Affidavit of 2 paragraphs with paragraph 2 thereof containing sub-paragraphs (i) to (xiii), and attached thereto are Notarized Certified Copies of 5 documents as Exhibits i.e.

• Exhibit B1 – “Certificate of Dissolution issued by the Registrar of Companies for England and Wales. Given at the Companies House, Cardiff dated 5/1/2007”.
• Exhibit B2 – “Notice of Appointment of Liquidator for voluntary Winding up of the said IBPC UK Limited [Respondent Company] that was duly filed at the Companies House United Kingdom”.
• Exhibit B3 – “Liquidators’ statement of Receipts and Payments filed by the Liquidators appointed to wind up the said IBPC UK Ltd., that was duly filed at the Companies House United Kingdom”
• Exhibit B4 -“Return of final Meeting in a Members’ Voluntary Winding Up, which was duly filed at the Companies House United Kingdom.
• Exhibit B5 – “FORM 4.70 – Members’ Voluntary Winding Up Declaration of Solvency Embodying a Statement of Assets and Liabilities, which was duly filed at the Companies House, United Kingdom”.

After hearing arguments from counsel, the learned trial Judge, T. Abubakar, J. (as he then was) delivered his Ruling on 10/12/2007, wherein he held that –

“- – The main basis of Applicants’ objection is that the Petitioner is not a juristic person, having been wound up. The Petitioner/Respondent contested the evidence of winding up and alleged that the document evidencing winding up is not genuine. I think considering the facts and circumstances of this objection, interest of justice will be better served if the objection is dismissed, and the Petition is heard and determined on its merit. I therefore accordingly dismiss the objection and order that this Petition be heard on its merit”.

Dissatisfied, the Appellants applied to this Court and were granted leave to appeal against the Ruling. They filed a Notice of Appeal containing 3 Grounds of Appeal against the said Ruling. Briefs of Argument were duly filed, and in the Appellants’ Brief of Argument prepared by Aherhe Akpojaro, Esq., it was submitted that the following issue calls for determination in this appeal-

“Whether the learned trial Court erred in law when it failed to rule on the evidence, contained in exhibits B1-B5, attached to the Further and Better Affidavit as to whether the Respondent is a juristic person, before holding that the Winding up Petition be heard on its merit”.

The Respondent disagreed with the issue as formulated, and argued in his Brief settled by Olanlokun Olodun, Esq. that it could be succinctly reframed thus –

“Whether the Appellants had established the lack of juristic personality in the Respondent by legally admissible evidence as alleged in the lower Court”.

Going through the processes filed, and considering the arguments canvassed for and against the preliminary objection, I am of the firm view that the issue at stake is simply whether the lower Court was right to dismiss the objection.

The Appellants pointed to Exhibits B1-B5 set out earlier, and submitted that though the Respondent purported to contest the veracity and authenticity of the Exhibits, it never expressly deposed that they were fake or not genuine, except to the extent expressed in paragraph 2(iv) of the Counter Affidavit, where it said that “the annexure relied upon to support the contention of the Applicant did not emanate from the regulatory statutory authority in England”.