Private Networks Nigeria Limited V. Visa Investment And Securities Limited (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal is from a decision of the Federal High Court sitting in Lagos (the Court below) by which it dismissed the appellant’s preliminary objection to the winding up petition brought by the respondent against the appellant.

The respondent had obtained judgment in the sum of N294,652,054.81 against a company called Private Network Value Added Services Limited. The respondent upon motion ex parte at the Federal High Court, obtained an order of the Court lifting the veil of the Private Network Value Added Services Limited for the purpose of identifying her directors. Pursuant to the order lifting the corporate veil of Private Network Value Added Services Limited, the respondent discovered the appellant as the only incorporated company director of the judgment debtor. She filed a winding up petition against the appellant for the indebtedness of Private Networks Value Added Services Nigeria Limited. The appellant’s preliminary objection that she is not a proper party to the winding up petition and that the Court below does not have jurisdiction over the case was heard and dismissed by the

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Court below.

Not satisfied with the decision, the appellant filed a notice of appeal with two grounds of appeal vide pages 141 – 142 of the record of appeal (the record).

The respondent took preliminary objection to the appeal which was argued in pages 4 – 11 of the respondent’s brief of argument filed on 03-04-14, but deemed as properly filed on 05-10-15.

It was argued that the decision of the Court below that it had jurisdiction over the case was interlocutory vide page 124 – 140 of the record and the grounds of appeal being of mixed law and fact the leave of the Court was required to file the appeal and, not having obtained the requisite leave the appeal is incompetent and should be struck out vide Section 242 of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution), Gomez and Anor. V. C and S Society and Ors. (2009) 4- 5 SC (Pt.1) 156 AT 166 – 174, 179 – 180, Owoh v. Asuk (2008) SC (pt.1) 155 at 165 – 166, Order 7 rule 2 of the Court of Appeal Rules 2011 (the Rules of the Court) and Order 6 rule 3 and G thereof.

It was also argued that the application called for the exercise of the discretion of the

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Court which is an issue of mixed law and fact requiring the leave of the Court to appeal against it vide Ogunleye v. Military Administrator of Ondo State (1996) 9 NWLR (pt.471) 179 at 185, Anoghalu v. Oraelosi (1999) 10 – 12 S.C. 1, Ogbechie v. Onochie (1986) 3 SC (Reprint) 32 at 35, Bello v. INEC (2010) 2 – 3 SC (pt.11) 128 at 196, Dantata v. Mohammed (2000) 5 S.C. 1, Abubakar V. Waziri (2008) 6 -7 S.C. (Pt.11) 82 at 104 – 105, therefore the appeal should be struck out on the ground of incompetence vide Section 242(1) of the 1999 Constitution and Iroegbu v. Okwadu (1990) 10 SGNJ 87 at 103, Amadagun v. Ume (2007) 13 NWLR (pt.1051) 219, Union Bank Nig. Plc v. Sogunro and Ors. (2006) 7 S.C. (pt.111) 119 at 125 – 126, First Bank of Nigeria v. T.S.A. (2010) 15 NWLR (pt.1216) 247 at 279 274, Okwuagbala v. Ikwueme (2010) 19 NWLR (pt.1226) 62 at 70 and Anadi v. Okoli (1977) 3 S.C. (Reprint) 110 at 116.

It was submitted by the appellant in the reply brief that the grounds of appeal involve the questions of law alone and did not require the leave of the Court vide Abdul v. C.P.C. (2013) 5 – 7 MJSC (Pt.11) 27 – 29, Njemanze v. Njemanze (2013) 2 – 3 MJSC

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(pt.11) 30 at 46 – 49, Opuiyo v. Omoniwari (2007) 6 SC (pt.1) 35, consequently, the appellant urged that the preliminary objection should be overruled.