Prince (Dr.) B. A. Onafowokan & Ors. V. Wema Bank Plc. & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

This appeal is against the decision of the Court of Appeal, Lagos Division in its judgment delivered on 25th March, 2004 wherein that Court set aside the decision of the Federal High Court Lagos, striking out suit No. FHC/L/CS/346/2001. The suit was instituted by a Writ of Summons and a Statement of Claim filed on 11th April, 2000 by the Respondents as Plaintiffs against the Appellants as Defendants claiming Declaratory and injunctive reliefs. On being served with the Writ of Summons and the Statement of Claim, the Defendants, without filing a statement of Defence, reacted by filing a Notice of Preliminary Objection to the competence of the action dated 1st July, 2000, contending that the trial Court lacked jurisdiction to adjudicate over the matter because the Plaintiffs had no locus standi to institute the action and urged the Court to strike out the action.

In its Ruling delivered on 9th February, 2001, the trial Court upheld the Preliminary Objection of the Defendants and struck out the action.

Dissatisfied with this Ruling, the Plaintiffs appealed against it to the Court of Appeal which after hearing the appeal, allowed it, set aside the Ruling of the trial Court and remitted the case to the trial Court for hearing the action on the merit by another Judge. The Defendants who were the Respondents at the Court of Appeal who lost in that Court, are now on appeal to this Court on a Notice of Appeal containing two grounds of appeal from which the following two issues were raised in the Appellants brief of argument.

(i) Whether the Court of Appeal was right when it allowed the appeal of the Respondent when it held that the 3rd Respondent (a Receiver appointed for just one property) did not need leave of Court to bring or defend any action or other legal proceedings in the name and on behalf of the Company under Section 393(3) of the Companies and Allied Matters Act, 1990 when the Respondents did not plead the material facts to enable them enlist in aid the provisions of the said Section 393(3) of the Companies and Allied Act, 1990 and when the said Section was interpreted in vacuo by the Court without relating it to the facts of the case.

(ii) Whether the Court of Appeal was right in holding that the preliminary objection taken at the Federal High Court appeared to be premature even though it was clear from the onset that none of the Respondents pleaded any fact which would have allowed the Receiver to sue without the leave of Court i.e that he was appointed Receiver for the whole or substantially the whole of the Company’s property under Section 393(3) and schedule 11 of the Companies and Allied Matters Act, 1990 or which could have made the Court to so infer.

In the 1st Respondent’s brief of argument, in addition to the Notice of Preliminary Objection raised on the alleged incompetence of ground 1 of the Appellants ground of appeal together with its three particulars and issue 1 arising from that ground, two issues were also identified from the two grounds of appeal. Although the issues are differently worded from those framed in the Appellant’s brief of argument, in substance the issues are the same. In what appears to be a spirit of sharing of responsibilities between the Respondents in dealing with the Appellants appeal, the 2nd and 3rd Respondents in their joint Respondents brief of argument, also decided to attack the second ground of appeal which was not included in the 1st Respondent’s Preliminary Objection, in their own Preliminary Objection to ground 2 of the Appellants ground of appeal and issue 2 arising from it as being incompetent. Subject to the ruling on their Preliminary Objection, the 2nd and 3rd Respondents also formulated two issues substantially the same as those in the Appellant’s brief earlier quoted in this judgment.

Starting with the Preliminary Objection of the 1st Respondent to ground 1 of the grounds of appeal, that ground at pages 288 – 289 of the record of appeal reads –

“(1.) The Court below erred in law when it allowed the appeal of the Plaintiffs/Respondents as regards the 3rd Plaintiff/Respondent’s non requirement of leave of the Court to institute or defend an action in the name of the Company (2nd Plaintiff/Respondent) having regard to Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matters Act CAP 59 Laws of the Federation of Nigeria 1990.

PARTICULARS

(a.) Before the Receiver can be (sic) enlist in aid the provisions of Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matters Act CAP 59 Laws of the Federation of Nigeria 1990 he must specifically plead and state in the Statement of Claim that he was appointed for the whole or substantially the whole of a Company’s property.

(b.) In the absence of such material pleading, the lower Court cannot infer that he was so appointed for the whole or substantially the whole of the Company’s property so as to make the requirement of leave of the High Court unnecessary.

(c.) Where it is thus not shown clearly that he was so appointed for the whole or substantially the whole of a Company’s property it would be wrong to enlist in aid the provisions of Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matters Act CAP 59 Laws of the Federation of Nigeria 1990 to circumvent the need for the leave of the Court.

In support of the objection, learned Counsel to the 1st Respondent argued that the Appellants did not raise the issue of a perceived inadequacy in the Respondents pleadings in relation to Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matters Act at the Court of trial and therefore the learned trial Judge made no pronouncement on this issue and that the attempt by the Appellants, as Respondents at the Court below, to raise the issue in their brief, was resisted and turned down by that Court when the issue was struck out.

In their response to the 1st Respondent’s Objection, the Appellants have pointed out that the Preliminary objection not having been filed by Notice as required by Order 2 Rule 9 (1) and (2) of the Rules of this Court, merely raising it in the brief of argument, relying on the case of Nsirim v. Nsirim (1990) 3 N.W.L.R. (Pt. 138) 285 at 297, the Preliminary Objection is incompetent and should be struck out. On the substance of the objection, learned Counsel argued that the issue of the perceived inadequacy of the Plaintiffs’ pleadings in relation to Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matter Act, was clearly raised at the trial Court by the parties and therefore urged this Court to over rule the Preliminary Objection.

On the alleged failure of the 1st Respondent to comply with the provisions of Order 2 Rule 9(1) and (2) of the Rules of this Court in raising the Preliminary Objection, I observe that when this appeal was heard on 22nd February, 2011, this Court granted leave to the 1st Respondent to argue the Preliminary Objection already contained in the Respondents brief of argument. The Objection is not therefore deemed abandoned because it was filed and raised in the Respondent’s brief of argument. The Preliminary Objection is therefore quite in order and what remains now is to determine whether or not it can be sustained.

Although Order 8 Rule 2(2), (3) and (4) of the Rules of this Court have made provisions on how grounds of appeal contained in the Notice of Appeal should be framed by making sure that where a ground allege misdirection or error in law, the particular and the nature of the misdirection or error shall be clearly stated, that the ground shall be without any argument or narrative and that the ground shall not be vague or general in nature, these important guides are not the main basis on which ground 1 of the Appellant’s ground of appeal is being attacked by the 1st Respondent. The main complaint of the 1st Respondent on ground 1 is that the Appellant did not raise the issue of a perceived inadequacy in the Respondents’ pleadings in relation to Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matters Act at the Court of trial and therefore the trial Court did not make any pronouncement on the issue. However, the record of appeal at pages 94, 95 and 97 show quite clearly that the issue was indeed raised and canvassed at the trial Court. In any case, the learned Counsel to the 1st Respondent himself has indicated in paragraph 3.04 of the 1st Respondents brief that –

“Particulars (a.), (b.), (c.) of Ground 1 quoted above, reflect the main complaint of the Appellants before this Honourable Court against the decision of the Court below.”

Indeed, that is the whole purpose of a ground of appeal. The Appellant’s ground 1 therefore as quoted earlier in this judgment is a good ground of law even without the particulars. The Preliminary Objection to the ground is therefore over ruled because a ground of appeal is simply supposed to represent an Appellant’s complaint against the decision he is not satisfied with and which he has grouse against and wants an appellate Court to correct and remedy. See Ojeme v. Momodu 11 (1983) 1 S.C.N.L.R. 188.

Going to the Notice of Preliminary Objection by the 2nd and 3rd Respondents to ground 2 of the Appellants’ grounds of appeal, their main complaint against the ground is that it does not constitute an appeal against the decision or ratio decidendi of the Court of Appeal of 25th May, 2004 now on appeal; that the ground is merely attacking an obiter dictum of the Court below which by virtue of many decisions of this Court, such as Saraki v. Kotoye (1992) 9 N.W.L.R. (Pt.264) 155 at 184 and Egbe v. Alhaji (1990) 1 N.W.L.R. (Pt. 128) 545 at 590, is not appealable.

What the Appellants are saying on their ground 2 in their Appellants’ Reply brief is that the remarks of the Court below that the preliminary Objection taken at the trial Court was premature, relates to the other reason why the judgment of the trial Court was set aside and therefore urged this Court to rely on the case of Military Administrator of Benue State & Ors. v. Ulegede (2001) 17 N.W.L.R. (Pt.741) 194, to dismiss the Preliminary Objection.

The law is trite that a ground of appeal must be against a decision being appealed against and should constitute a challenge to the ratio of the decision. See M.B.N. Plc. v. Nwobodo (2005) 14 N.W.L.R. (Pt. 945) 379 and Egbe v. Alhaji (1990) 1 N.W.L.R. (Pt. 128) 546 at 590.

It is quite clear from the record of this appeal at pages 278 – 279 that although the Plaintiffs/Appellants before the Court of Appeal had raised as many as 4 issues in the Appellants’ brief for the determination of their appeal at the Court below, that Court determined the appeal on the 1st issue alone which reads –

“(i) whether the 3rd Plaintiff/Appellant as Receiver of the property of the 2nd Plaintiff/Appellant must obtain leave of Court to institute or defend an action in the name of the 2nd Plaintiff/Appellant having regard to Section 393(3) and Clause 5 of Schedule 11 of the Companies and Allied Matters Act CAP 59 laws of the Federation of Nigeria 1990 (Grounds 1 & 2 of the Notice of Appeal).

This issue was resolved by the Court below after quoting and considering the provisions of Section 393 of the Companies and Allied Matter Act before arriving at the decision that –

“From the provisions above it is clear that where the Receiver or Manager is appointed for the whole of the Property the powers conferred on him by the debentures by virtue of which he was appointed shall deemed to include the Powers specified in Schedule 11 of CAMA to bring or defend any or other legal proceedings in the name and on behalf of the Company.”

This is the main decision of the Court below in allowing the Plaintiffs/Appellants’ appeal. In other words it is the ratio decidendi of the decision. Any remarks or observation of that Court outside the determination of the power of the Receiver/Manager under Section 393(3) of the Companies and Allied Matters Act, is not part of that decision and is therefore an obiter dictum. Thus, as ground 2 of the Appellants’ grounds of appeal is NOT a complaint against the decision of the Court of Appeal being appealed against, is indeed incompetent as urged by the 2nd and 3rd Respondents and is accordingly hereby struck out. Consequently the 2nd issue in the Appellants brief of argument which was formulated from that ground of appeal now struck out, shall have no legs to stand upon in the consideration and determination of the appeal. I shall now proceed to determine this appeal on the remaining issue 1 in the Appellants’ brief of argument.

The crux of the appeal according to the Appellants is whether the Receiver/Manager appointed over the property of the Company by virtue of a Debenture Trust Deed, can invoke the provisions of Section 393(3) and Schedule 11 of the of the Companies and Allied Matters Act, 1990 without addressing the main contest between the parties which was whether the 3rd Respondent herein can enlist in aid the provisions of Section 393(3) and Schedule 11 of the Companies and Allied Matters Act, 1990 when neither he nor his appointee the 1st Respondent aver in their pleading, that is statement of claim, that the 3rd Respondent was appointed for the whole or substantially the whole of the 2nd Respondent’s property. Learned Counsel after quoting in full the provisions of the Act and the relevant Schedule 11, argued that the Court below merely interpreted the provisions of the Act in vacuo without basing the interpretation on the relevant facts relating to the property of the 2nd Respondent charged in the Debenture Trust Deed executed between the parties. Learned Counsel pointed out that only one single property was charged by the 2nd Respondent in favour of the 1st Respondent and as such the requirement of sub-section (3) of Section 393 of Companies and Allied Matters Act and Schedule 11 of the Act which required the appointment of Receiver/Manager for the whole or substantially the whole property of the Company, before the provisions could apply, was not addressed by the Court below in coming to the conclusion in the interpretation of the provisions. Citing and relying on several cases on the interpretation of statutes based on the facts in issue between parties to the dispute, learned Counsel to the Appellants submitted that the Plaintiffs/Respondents not having pleaded the material fact that the 3rd Respondent was appointed for the whole or substantially the whole of the property of the Company, then the Respondents, particularly the 1st and 3rd Respondents, cannot enlist in aid or seek cover under Section 393(3) of the Companies and Allied Matters Act when objection was raised to the competency of their action at the trial Court without seeking leave of trial Court before institution the action as was the position in Intercontractors Nigeria Ltd. v. N.P.F.M.B. (1988) 2 N.W.L.R. (Pt. 76) 280; Intercontractors Nigeria Ltd. v. U.A.C. (1988) 2 N.W.L.R. (Pt. 76) 303; Adegboyega v. Awu (1992) 7 N.W.L.R. (Pt. 255) 576 and Unibiz (Nigeria) Ltd. v. C.B.C.L. Ltd. (2003) 6 N.W.L.R. (Pt. 816) 402) at 427.

On this lone issue that remains for determination in this appeal, it is contended by the 1st Respondent that having regard to the pleadings of the Respondents, the Court below was right in holding that the 3rd Respondent did not require leave of Court to sue in the name and on behalf of the 2nd Respondent; that contrary to the submission of the Appellants, the Respondents statement of claim at pages 5 – 7 of the Record, contains sufficient material averments from which the Court of trial could have inferred or deduced that the 3rd Respondent was appointed by the 1st Respondent for the whole or substantially the whole of the property of the 2nd Respondent. Learned Counsel to the 1st Respondent referred to and quoted paragraphs 2, 3, 13, 14 and 15 of the Plaintiffs/Respondents’ Statement of Claim as providing such material to support the fact that 3rd Respondent was appointed Receiver/Manager for the whole or substantially the whole of the property of the 2nd Respondent without necessarily pleading the exact words used in the statute. With regard to the cases cited and relied upon by the Appellants on the requirement of leave of Court before the present action was instituted, learned Counsel argued that the cases are not relevant to the present case because Section 393(3) of CAMA was not in issue in the decisions in those cases and therefore urged this Court to dismiss the appeal.

The 2nd and 3rd Respondents’ stand on the lone issue for determination in this appeal is virtually the same as that of the 1st Respondent. Their learned Counsel relying on the decisions of this Court in several cases on pleadings, maintained that it is elementary rule of pleadings that facts must be pleaded but not law. Such cases include Obizuru v. Ozims (1985) 2 N.W.L.R. (Pt. 60) 167 at 179 and Anyawu v. Mbara (1992) 5 N.W.L.R. (Pt. 242) 386 at 398. In the instant case therefore, learned Counsel urged this Court to hold that there are enough facts in the Statement of Claim of the Plaintiffs/Respondents to support the interpretation of the provisions of Section 393 of the Companies and Allied Matters Act as found by the Court below to justify dismissing this appeal.

Taking into consideration that, this appeal arose from the Ruling of the Federal High Court on the Preliminary Objection raised by the Defendants/Appellants to the competence of the action field against them by the Plaintiffs/Respondents resulting in the upholding of the objection and termination of the action in-limine, the law on the procedure taken in the case is well settled. An application to dismiss an action on grounds of law may attack the jurisdiction of the Court simpliciter or raise the issue that the Plaintiff has not made out on the writ of summons and statement of claim a cause of action. In either case the Applicant is deemed to rely for his argument on the facts as stated by the Plaintiff in the statement of claim which for the purpose of such application are deemed accepted. See Ayanboye v. Balogun (1990) 5 N.W.L.R. (Pt. 151) 392 and Ege Shipping & Trading Industry Inco. & Ors. v. Tigris International Corporation (1999) 14 N.W.L.R. (Pt. 637) 70 at 88 – 89.

In the instant case, the Defendants/Appellants acted in accordance with the law when on being served with the Writ of Summons and the Statement of Claim, without waiting to file a Statement of Defence, brought their application to terminate the action on the main ground of law that the Plaintiffs/Respondent lacked the locus standi to institute the action. In taking this course therefore, the Appellants are deemed to have accepted and agreed with all the averments contained in the Statement of Claim. What calls for determination now is whether on the facts pleaded in the Statement of Claim, there are facts supporting the Plaintiffs/Respondents stand that the 3rd Respondent was appointed Receiver/Manager on the whole or substantially the whole property of the 2nd Respondent within the requirement of Section 393(3) of the Companies and Allied Matters Act 1990 as found by the Court below. For the avoidance of any doubt I quote below the relevant paragraphs 1 – 13 of the Statement of Claim dated 7th April, 2000 and filed at the trial Court on 11th April, 2000 which the Defendants/Appellants are deemed to have agreed with without any dispute as laid down by the law.

“1. The 1st Plaintiff is a Commercial Bank duly incorporated and licensed in Nigeria and has its Head Office at 54, Marina, Lagos.

2. The 2nd Plaintiff is a Company incorporated in Nigeria having its registered office at Abimbola House, 24, Abimbola Street, Ilasamaja, Isolo, Lagos and has been in Receivership since the 14th day of March, 2000.
3. The 3rd Plaintiff, a Chartered Accountant, is the Receiver/Manager of the 2nd Plaintiff and has his office at No.4, Bunmi Joseph Close, Gbagada Phase II, Lagos.
4. The 1st, 2nd and 3rd Defendants are Directors and Officers of the 2nd Plaintiff and their last known address is at Abimbola House, 24, Abimbola Street, Ilasamaja, Isolo, Lagos.
5. The 2nd Plaintiff maintains a current account with the 1st Plaintiff and a consortium of Banks namely First Bank of Nigeria Plc; Diamond Bank Limited; Afribank Nigeria Plc, Eko International Bank Plc, Rims Merchant Bank Limited and Citizen International Bank Limited hereinafter called “the Consortium of Lenders.
6. The 2nd Plaintiff applied to the 1st Plaintiff and the Consortium of Lenders for credit facilities and same was granted by the 1st Plaintiff and the Consortium of Lenders.
7. The credit facility granted to the 2nd Plaintiff by 1st Plaintiff and the Consortium of lenders was secured by a Debenture Trust Deed dated 14th June, 1994 and a supplementary Debenture Trust Deed dated 19th September, 1996. The said Debenture Trust Deed and Supplementary Debenture Trust Deed were executed by the Consortium of Lenders. The Plaintiff shall rely on the said Debenture Trust Deed which is registered as 30/30/1958 and the Supplementary Debenture Trust Deed which is registered as 80/80/1987 at the Land Registry in the office at Lagos as well as the Certificate of Registration of a Debenture Trust Deed issued by the Corporate Affairs Commission dated 17th August, 1994 and 24th September, 1996 respectively the trial of this action.
8. By virtue of the Debenture Trust Deed referred to in paragraph 7 above, the 2nd Plaintiff created a first Charge in favour of the 1st Plaintiff over all the hereditaments buildings and property of the 2nd Plaintiff including Plants Machinery Equipment, Warehouse, Office Block and other real property lying situate and being at 24, Abimbola Street, Ilasamaja, Isolo, Lagos.
9. The 2nd Plaintiff failed to liquidate its debt to the 1st Plaintiff and the Consortium of lenders by virtue of the credit facilities.
10. The 2nd Plaintiff’s indebtedness to the 1st Plaintiff and the Consortium of Lenders on the credit facilities stood at N311,000,000 as at March 14, 2000.
11. The Plaintiff and Consortium of Lenders agreed with the 2nd Plaintiff to grant a memorandum on interest element on the sum due in December, 1997 with a view to encouraging the 2nd Plaintiff to pay its debt by way of a quarterly instalment of N30 Million but the 2nd Plaintiff defaulted in the agreed instalmental payment. The Plaintiffs will rely on the Memorandum of Understanding dated 15th December, 1997 executed by the 2nd Plaintiff as well as all the letters written by the 2nd Plaintiff on its inability to meet instalmental payments at the trial of this action.
12. The 1st Plaintiff made several demands on the 2nd Plaintiff and when the 2nd Plaintiff refused to meet its obligation to the 1st Plaintiff and the Consortium of Lenders, the 1st Plaintiff by its letter dated 11th November, 1998 foreclosed the security provided by the 2nd Plaintiff.
13. The 2nd Plaintiff failed to liquidate the debt to the 1st Plaintiff and the Consortium of Lenders and consequent upon its default the 1st Plaintiff in the due exercise of its Power under Clause 15 of the Debenture Trust Deed appointed the 3rd Plaintiff on the 14th day of March, 2000 as the Receiver/Manager of the 2nd Plaintiff. The Deed of Appointment and Notice of Appointment of the 3rd Plaintiff as the Receiver/Manager of the 2nd Plaintiff will be relied upon at the trial of the suit.

It is quite clear from the facts averred in these paragraphs that the 2nd Respondent Company is indebted to the 1st Respondent Bank and other Consortium of Lender Banks to the tune of N311,000,000.00 as at 14th March, 2000. It is also clear that by two separate Debentures Trust Deeds executed on 14th June, 1994 and 19th September, 1996, the 2nd Respondent Company created a first charge in favour of the 1st Respondent and other Consortium of Lending Banks over all the hereditaments Buildings and property of the 2nd Respondent Company including Plants, Machinery, Equipment, Warehouse, Office Block and Real Property at No. 24 Abimbola Street Ilasamaja Isolo Lagos.

It is also plain from the undisputed facts averred, that the 2nd Respondent was in default in paying back the loan which led to the exercise of the powers of the lenders under Clause 15 of the Debenture Trust Deed to appoint the 3rd Respondent a Receiver/Manager over all the properties of the 2nd Respondent charged under the Debenture Trust Deeds. There is no doubt whatsoever that the appointment of the 3rd Respondent as a Receiver/Manager covers all the assets and property of the 2nd Respondent charged in the Debenture Trust Deeds to secure the loan granted to the 2nd Respondent. In the circumstances therefore, the appointment of the 3rd Respondent is completely within Section 393(3) of the Companies and Allied Matter Act for the whole or substantially the whole of the property of the 2nd Respondent to qualify him to enjoy the rights specified under Clause 5 of Schedule 11 of the Companies and Allied Matters Act, as rightly found by the Court below. Section 393(1), (2) and (3) of the Companies and Allied Matters Act in question state –

“393(1) A person appointed a receiver of any property of a Company shall subject to the rights of prior incumbrances take possession of and protect the property, receive the rents and profits and discharge all out-goings in respect thereof and realize the security for the benefit of those on whose behalf he is appointed, but unless appointed manager he shall not have power to carry on any business or undertaking.

(2) A person appointed manager of the whole or any part of the undertaking of a Company shall manage the same with a view to the beneficial realization of the security of those on whose behalf he is appointed.

(3) Without prejudice to subsection (1) or (2) of this section, where a receiver or manager is appointed for the whole or substantially the whole of a Company’s property, the powers conferred on him by the debentures by virtue of which he was appointed shall be deemed to include (except in so far as they are inconsistent with any of the provisions of those debentures) the powers specified in the Eleventh Schedule to this Act.”

The provisions are quite plain that where a receiver or manager is appointed for the whole or substantially the whole of a Company’s property, the powers conferred on him by the debentures by virtue of which he was appointed, shall be deemed to include, except in so far as they are inconsistent with any of the provisions of those debentures, the powers specified in the Eleventh Schedule to the Act. Since the Appellants in this case are not saying that there is any inconsistency in contents of the Debenture Trust Deeds on the powers to appoint a receiver/manager, the 3rd Respondent appointed by the powers expressed under paragraph 15 of the Debenture Trust Deed is deemed to have all powers specified in Schedule 11 of the Act including the power in Clause 5 to bring or defend any action or other legal proceedings in the name and on behalf of the 2nd Respondent Company. The only complaint of the Appellants in the instant case is that the Plaintiffs/Respondents in their statement of claim, did not plead the fact that the 3rd Respondent was appointed Receiver/Manager for the whole or substantially the whole property of the 2nd Respondent Company to qualify him to enjoy the powers of a Receiver/Manager under Section 393(3) of the Companies and Allied Matters Act and the 11th Schedule to the Act. The contents of paragraphs 1 to 13 of the statement of claim earlier quoted in this judgment particularly paragraph 8 thereof have shown that the Debenture Trust Deed had created a first charge over all and not only one as claimed by the Appellants, of the properties of the 2nd Respondent at 24 Abimbola Street, Ilasamaja Isolo, Lagos over which the 3rd Respondent was appointed a receiver/manager. This to me clearly shows compliance with the provisions of Section 393(3) of the Companies and Allied Mattes Act as found by the Court below. Thus, the Plaintiffs/Respondents having pleaded that the appointment of the 3rd Respondent as Receiver/Manager was over all the properties of the 2nd Respondent Company, the fact that the exact words of “the whole” or “substantially the whole” property of the Company was not used in the pleading, will not affect the fact that the appointment was made over all the property of the company at 24, Abimbola Street Ilasamaja Isolo Lagos. It is therefore not correct as claimed by the Appellants that the Court below merely interpreted the provisions of the Act in ‘vacuo.’

Consequently, as the appointment of the 3rd Respondent by 1st Respondent as Receiver/Manager over all the properties of the 2nd Respondent Company charged under the Debenture Trust Deeds was made in substantial compliance with Section 393(3) of the Companies and Allied Matters Act and Schedule 11 of that Act, the 3rd Respondent required no leave of Court to institute the action against the Appellants to recover the loan granted to the 2nd Respondent which is still awaiting liquidation. The cases of Intercontractors Nigeria Limited v. N.P.F.M.B. (supra) Intercontractors Nigeria Limited v. U.A.C. (supra), Adegboyega v. Awu (supra) and Unibiz (Nigeria) Limited v. C.B.C.L. Limited (supra) in which the provisions of Section 393(3) of the Companies and Allied Matters Act and Schedule 11 of that Act did not arise for consideration, are not relevant.

In the light of the foregoing, I find no merit at all in this appeal which is hereby dismissed. The judgment of the Court of Appeal including the order remitting the case to the trial Court for hearing the action on merit by another Judge of the trial Court is affirmed. I am not making any order on costs.

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SC.88/2004