Titilayo Plastic Industries Limited & Ors V. Chief Joshua Abesi Fagbola (2019)

LAWGLOBAL HUB Lead Judgment Report

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

This is an appeal against the judgment of the Court of Appeal, Benin Division delivered on 7th August 2003, setting aside the Ruling of the Federal High Court, Akure Division, delivered on 27th July, 2000.

The brief facts that gave rise to the dispute between the parties are as follows: The respondent was the Managing Director and Chief Executive Officer of the 1st appellant. During his tenure, the 1st appellant sought a loan facility from the 2nd appellant for a period of 5 years. It was secured by a Deed of Floating Debenture dated 21st April, 1998 over the 1st appellant’s assets. The debenture also empowered the 2nd appellant to appoint a receiver/manager for the 1st appellant in the event of a default in the repayment of the facility. The 1st appellant defaulted in the repayment of the facility. A receiver/manager in the name of one Simeon Ololade Fadeyibi was appointed for the 1st appellant and the appointment was duly registered at the Corporate Affairs Commission. In fulfillment of his mandate, the receiver/manager requested for a statement of the

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affairs of the 1st appellant.

The respondent, although duly notified of the appointment of the receiver/manager, was uncooperative and failed to provide the information. The present appellants, on 23/3/2000, instituted an action by way of Originating Summons before the Federal High Court, Akure (the trial Court) seeking the following reliefs against the respondent:

1. A declaration that the right of the 3rd plaintiff [Owena Bank Plc.] as the holder of a floating debenture over the assets of the 1st plaintiff [Titilayo Plastics Industries Ltd.] having arisen, the appointment of the 2nd plaintiff [Simeon Fadeyibi] as a Receiver/Manager of the assets of the 1st plaintiff vide Deed of Appointment dated 27/12/99 is proper, valid and subsisting.
2. A declaration that as the Receiver/Manager of the 1st plaintiff, the 2nd plaintiff is entitled to the possession of all the assets and monies of the 1st plaintiff (excluding land) wherever located.
3. A declaration that the 2nd plaintiff as Receiver/Manager of the 1st plaintiff is entitled to exercise any and/all the powers conferred on him by the security documents and any other Law in that

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regard.

4. An order that the defendant immediately deliver the Statement of Affairs of the 1st plaintiff to the 2nd plaintiff herein.

5 An order of injunction restraining the defendant herein, his agents, servants and privies from acting or further acting, managing, or holding himself out, carrying out in any manner whatsoever and howsoever exercising by delegating or otherwise the powers of Director, Manager, Chief Executive of the 1st plaintiff or interfering with or obstructing the exercise of the powers of the Receiver/Manager of the 2nd plaintiff over the assets of the 1st plaintiff so long as the Receiver/Manager subsists.

6. An order of injunction restraining or ordering the defendant whether by himself or by his servants, agents or privies whomsoever and howsoever from further entering into, upon and from remaining upon the 1st plaintiff’s premises situate at 57 Oyemekun Road, Akure, Ondo State and factory at kilometre 4 Oba Ile Road, Akure, Ondo State, or wheresoever or remaining in possession of the business premises and assets of the 1st plaintiff’s bank accounts irrespective of wherever the said assets of the 1st plaintiff may

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presently be during subsistence of the 1st plaintiff’s receivership by the 2nd plaintiff.”

They filed a 24-paragraph affidavit in support with five exhibits. They also sought and obtained several interim ex parte orders of injunction against the respondent.

After being served with the Originating Summons, the respondent filed a motion dated 5/4/2000 challenging the jurisdiction of the trial Court to entertain the suit and seeking the discharge of the interim orders made in favour of the appellants. He sought the following reliefs:

“1. An extension of time within which to apply to discharge the interlocutory orders of the Court made on 23/3/2000 on Ex-parte Motion.