Tate Industries Plc. V. Devcom Merchant Bank Ltd. (2000)

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IGE, J.C.A.

On 6/8/98, the Federal High Court ordered that the appellant/applicant company be wound up for inability to pay its debts and consequently appointed the official Receiver of the Federal High Court to take charge of the affairs of the company as required by law. The appellant/ applicant is dissatisfied with this order and has appealed to this court.

In the interim, the applicant filed a motion before the lower court seeking the following orders:-

(1) An injunction restraining the official Receiver of the Federal High Court from selling or in any other way parting with the properties of the Appellant/Applicant at the Otta Factory, Ogun State pending the determination of the appeal herein.

(2) An order that the business operations of the Appellant/Applicant at the Otta Factory site be carried on by the Appellant/Applicant under the supervision of the Official Receiver aforesaid pending the determination of the appeal.

(3) An order that the taking over and sealing of the factory premises of the Appellant/Applicant by the Official Receiver at Murtala Mohammed Way, Ilorin in execution of the winding up order of Federal High Court be set aside pending the determination of the appeal lodged against the order of the said court.

(4) An order that the business operation of the Ilorin factory of the Appellant/Applicant be allowed to be carried on by the Applicant as before as a going concern pending the determination of the appeal.”

While the above motion is pending before the lower court the Appellant/Applicant has filed a similar motion before the Court of Appeal seeking the following reliefs:-

“i. An injunction restraining the Official Receiver of the Federal High Court from selling or in any other way parting with the properties of the Appellant/Applicant at the Otta Factory, Ogun State pending the determination of the appeal herein.

ii. An order that the business operations of the Appellant/Applicant at the Otta Factory site be carried on by the Appellant/Applicant under the supervision of the Official Receiver aforesaid pending the determination of the appeal.

iii. An order that the taking over and sealing of the factory premises of the Appellant/Applicant by the Official Receiver at Murtala Mohammed Way, Ilorin in execution of the winding up order of Federal High Court be set aside pending the determination of the appeal lodged against the order of the said court.

iv. An order that the business operation of the Ilorin factory of the Appellant/Applicant be allowed to be carried on by the Applicant as before as a going concern pending the determination of the appeal.

v. An order for stay of further proceedings in respect of all the applications in Suit No. FHC/L/CP/1162/95 pending before the Federal High Court, Lagos.”

When the above motion was to be argued in this court, the Respondent filed a notice of preliminary objection saying that the application brought by the appellant/applicant constitutes an abuse of the process of the court and should be struck out. The grounds of objection are as follows:-