Nashtex International Ltd V. Habib Nig. Bank Ltd & Anor. (2007)

LawGlobal-Hub Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

By an ex-parte originating summons dated 26/10/04 the respondents herein as applicants applied to the High Court of Katsina State, Malumfashi Judicial Division for the following orders:

1. “AN ORDER confirming the appointment of Abbas A. Machika Esq., the 2nd Applicant herein, of the Law Firm of A.A. Machika & Co. of No. 33 Yahaya Madaki Way, Katsina, as the Receiver/Manager to manage the undertakings, goodwill, properties and assets of the Respondent pursuant to his appointment by Deed of Appointment dated 19th October, 2004, made under the Mortgage Debenture dated 3rd March, 1998, and duly registered at the Corporate Affairs Commission, and also registered in the Katsina State Lands Registry as Instrument No: KTR 107 at page 107 of Vol. 14 in the register of lands.
2. AN ORDER directing the Receiver to take such steps as may be necessary to realize the assets of the Respondent with a view to paying its indebtedness to the 1st Applicant.
3. AN ORDER of this Honourable Court directing the Commissioner of Police, Katsina State Police Command, his nominee or any police officer shall assist (sic) the 2nd Applicant in the exercise of his duties as Receiver/Manager of the Respondent.
4. AND for such further orders (sic) this Honourable Court may deem fit to make in the circumstances.”

The originating summons was supported by a 17-paragraph affidavit and a 16-paragraph affidavit of urgency. The court granted the orders sought on 29/10/04. The orders were executed on 30/10/04. It was on this date that the appellant became aware of the proceedings for the first time. On 5/11/04 the appellant filed a motion on notice seeking the following reliefs:

1. “An order setting aside the order of the lower court dated 29th day of October, 2004 granted the respondents.
2. An order setting aside the execution of the order of the lower court dated 29th day of October, 2004 carried out on the 30th October, 2004.
3. An order of the lower court re-opening the applicant’s factory closed based on the order of this Court dated 29th October, 2004.
4. Any other order or further orders as this Honourable Court may deem fit to make in the circumstances.”

The grounds for the application contained in the schedule thereto are as follows:

1. “This Honourable Court lacks requisite jurisdiction to grant the Court order dated the 29th day of October, 2004 in favour of the respondent.
2. This suit is an abuse of Court process in Suit No. K/340/2003 pending before Kano State High Court of Justice.”

The learned trial Judge heard submissions from learned counsel to the parties and in a considered ruling delivered on 9/12/04 dismissed the application. The appellants were dissatisfied with the ruling and appealed to this court by their notice of appeal dated 10/12/04 containing three grounds of appeal. The grounds of appeal are as follows:

1. The learned trial Judge erred in law when he held that

“This court is a court of competent jurisdiction to give the order of the court dated 29th October, 2004″.

PARTICULARS OF ERROR

a. By the combined effect of Sections 251(1) (e) of the 1999 Constitution, Section 7(1) (c) of the Federal High Court Act Cap. 134 1990 and Section 650 (1) of the Companies and Allied Matters Act, 1990, only the Federal High Court is vested with jurisdiction to give the order of the court dated 29th day of October, 2004.

b. The court order dated 29th October, 2004 does not only confirm the appointment of the 2nd respondent as receiver ‘manager but also clothed him with power to take such steps as may be necessary to realize the assets of the respondent with a view to paying its indebtedness to the 1st respondent.

2. The learned trial Judge erred in law when he held that the appellant has failed to establish an abuse of judicial process.

PARTICULARS OF ERROR

a. The appellant filed a 12 paragraphs affidavit to support its motion on notice dated 5th November, 2004 together with 4 Exhibits tagged Exhibits A to D.

b. The respondents did not file any counter affidavit to the said affidavit in opposition of the appellant’s said motion.

3. The ruling is against the weight of evidence placed before the court.”

In its brief of argument dated 15/11/05 and deemed filed on 13/2/06 the appellant formulated two issues for determination. They are:

1. Whether by the combined effects of Sections 251(1)(e) of the 1999 Constitution of the Federal Republic of Nigeria, Section 7 (1) (c) of the Federal High Court Act Cap. 134 Laws of the Federation 1990 and Section 650(1) of the Companies and Allied Matters Act, Laws of the Federation 1990 the learned trial Judge was right to have held that “This court is a court of competent jurisdiction to give the order of the court dated 29th October, 2004”. (Ground 1)
2. Whether having regard to the affidavit evidence placed before the lower court together with the exhibits attached the lower court was right to have held that the appellant failed to establish an abuse of judicial process by the respondents. (Grounds 2 & 3)

The respondents filed a joint brief of argument dated 30/3/06 and filed on 12/4/06. They adopted the issues formulated by the appellant.