M C Investment Limited V. Professor J. T. Duncan (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court sitting in Lagos delivered on the 9th day of November, 2005 by Hon. Justice Abdulahi Mustapha.

The Respondent herein as Petitioner filed a winding up Petition against the Appellant as 1st Respondent and two others who are not parties to this appeal in the Federal High Court sitting at Lagos. In the Petition, the Respondent sought the following orders:-

a. MC Investments may be wound up by the Court under the provisions of the Companies and Allied Matters Act, 1990.

b. The second and third Respondents shall be personally responsible without any limitation of liability, for all the debts and other liabilities of the Company; and

c. Such other orders may be made in the premises as shall be just and equitable.

It is the case of the Respondent that on the 12th of November, 1992 he placed with the Appellant the sum of N1,000, 000.00 (One Million Naira only) for a 360 day period. Sometime in February 1993 he made an additional investment of N150,000.00 (One Hundred and Fifty Thousand Naira Only). By a letter dated the 23rd day of February, 1993 the

Appellant acknowledged the additional investment and agreed to merge same with the earlier investment of N1,000, 000,00 (One Million Naira Only) for a tenor of 80 (eighty) days at the interest rate of 8 percent per month. The Appellant made payments of the Respondent’s due and accrued interests till July, 1993 after which it ceased. The Appellant failed to pay up the balance notwithstanding repeated demands. Hence this suit was commenced at the lower court.

The Appellant did not file a counter affidavit to the Respondent’s Petition; instead he challenged the jurisdiction of the court to hear the Petition on the ground that the petition was incompetent because the failure by the Respondent to comply with the condition precedent laid down under Section 409 (a) of the Companies and Allied Matters Act.

Arguments of counsel were taken. In his judgment, the trial judge held that the Petition was incompetent but went ahead to award the sum of N950,000.00 (Nine Hundred and Fifty Thousand Naira Only) at the rate of 8% per annum (from 1994 when the suit was filed to the 9th day of November 2005, and thereafter interest at 6% per annum until judgment is liquidated).

The

Appellant being dissatisfied with the judgment has brought this appeal. The appeal was heard on the following briefs:-

1). the Appellant’s brief of argument filed 28th March, 2007.

2) the Respondent’s brief of argument filed on 25th day of April, 2012 but deemed properly filed and served on 23rd day of January, 2013.