OLUSEYI ABIODUN MAKINDE & ORS v. ORON ENGINEERING SERVICES (U.K.) LIMITED (2014)

OLUSEYI ABIODUN MAKINDE & ORS v. ORON ENGINEERING SERVICES (U.K.) LIMITED

(2014)LCN/6771(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of January, 2014

CA/L/874/2008

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

1. OLUSEYI ABIODUN MAKINDE
2. MIANNAYA AJA ESSIEN
3. MAKON GROUP LIMITED
4. ORION PROJECT SERVICES NIG. LTD. Appellant(s)

AND

ORION ENGINEERING SERVICES (U.K.) LTD. Respondent(s)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

It has long been settled that Jurisdiction is the legal authority which a court must have to decide matters that are litigated before it. It is fundamental and in fact the lifeline to the exercise by a court of its power of adjudication. It has also been decided in a long line of cases that when the issue of jurisdiction is raised in a proceeding it should be attended to and resolved before embarking on a consideration of the merits of the case. See B.A.S.F. (Nig) Ltd v Faith Ent. Ltd. (2010) 4 NWLR (Pt.1183) 104; African Press of Nigeria v. Federal Republic of Nigeria (1985) 1 NWLR (Pt.6) 137 @ 165; Crown Merchant Bank Ltd v. Leadway Ass. (1997) 11 NWLR (Pt.529) 405 412.
It is also the law that whenever there is a motion or an application to dismiss, or strike out or otherwise terminate an application or process and another motion or application to regularize the same application or process, the latter should be heard and determined in priority over the former- AG. Federation v Fafunwa-Onikoyi (2006) 18 NWLR (Pt.1010) 51 at 88-89 paras H-A
The question that confronts us here then is whether this principle applies even when the application to terminate is presented as an issue of jurisdiction as in the instant case. In considering the order in which competing applications should be heard, this court held as follows in N.D.D.C. V. Precision Association Ltd (2006) 16 NWLR Pt.2006 527 @ 557 paras C-D:
“Where there are two competing applications, one to terminate the matter midstream because of an irregularity and the other to sustain the matter by curing the irregularity, a court will first take the latter application. By the election, the court is inclined to saving the life of the suit for hearing on the merits. If the irregularity is curable and is cured because it does not affect the jurisdiction and competence of the court to adjudicate on the matter, then the application to terminate the matter is struck out”. PER IYIZOBA, J.C.A.

WHETHER OR NOT A VERIFYING AFFIDAVIT ATTACHED TO A PETITION CAN BE AMENDED

There is no doubt from the provision of Rule 18 (1) of the Winding-Up Rules 2007 that a verifying affidavit attached to a petition can be amended and that time can be extended for the filing of the verifying affidavit attached to a Petition. See the observation of this court in N.D.D.C. v. Precision Association Ltd (2006) 16 NWLR (Pt.2006) 527 at 559-560 paras E-C:
“There is no law which says that a court cannot grant leave to amend in order to regularize or remedy a writ of summons or other court process. The heydays of technicalities are now gone for good. The court is more interested in doing substantial justice. Reliance on technicalities lead to injustice. The judicial process malfunctions and is discredited when it is bogged down by technicalities and thrives on technicality. At all times therefore, technicalities should be eschewed and the determination to do substantial justice should remain the preferred option”
If a writ of summons can be amended, then every other Originating Process may be amended as long as such an amendment will not cause injustice to the opposing party. PER IYIZOBA, J.C.A.

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Tijjani Abubakar J of the Federal High Court Lagos in Suit No FHC/L/CS/1111/2006 delivered on the 25th day of July 2007 granting the Respondent leave to amend its petition and amongst other things to substitute the initial verifying affidavit attached to its Petition with a fresh verifying affidavit.

On the 22nd of December 2006, the Respondent filed a petition in the Federal High Court Lagos Division praying the Court to wind up Orion Project Services Nig. Ltd, (the 4th Appellant Company) pursuant to Section 408 (a) of the Companies and Allied Matters Act 1990. The petition was supported by a verifying affidavit deposed to by one Taiwo Adesina, a Legal Practitioner in the Law Firm of the Respondent’s Solicitor. On the same 22nd December 2006, the Federal High Court, pursuant to a Motion Exparte filed by the Respondent ordered that the shareholders of the 4th Appellant maintain the status quo pending the hearing and determination of the Motion on Notice. It is important to point out that the two shareholders of the 4th Appellant are the 3rd Appellant, a company incorporated and doing business in Nigeria and the Respondent, a Company incorporated and based in the United Kingdom.

The 1st and 2nd Appellants are not shareholders but Directors representing the 3rd Appellant in the Board of the 4th Appellant.

The Respondent subsequently commenced Contempt proceedings against the 1st and 2nd Appellants for alleged disobedience of the Court order to maintain the status quo as a result of which the Appellants filed series of Applications. On 7th February 2007, the Appellants filed a Motion on Notice consolidating all their previous applications into one application which amongst other things sought to strike out the Respondent’s petition for want of jurisdiction. The Respondent then filed a Motion dated 20th February 2007 seeking to amend its Petition by amending the Parties’ clause to reflect the 4th Appellant as the 1st Petitioner; substitute the initial verifying affidavit deposed to by Taiwo Adesina, the Legal Practitioner with a new verifying affidavit deposed to by Mr. Keith Brown, the Managing Director of the 4th Appellant; and to extend the time within which the fresh verifying affidavit could be filed.

On the 4th of July 2007, when the matter came up for hearing, the Appellants’ Counsel requested the Court to take the Appellants’ objection challenging the jurisdiction of the Lower Court first before proceeding to hear any other application. The Lower Court refused and took the Respondent’s application for amendment first. At the conclusion of arguments, the court granted all the prayers of the Respondent.

The Appellants, dissatisfied with the Ruling of the Trial Judge filed a Notice of Appeal containing 2 grounds of appeal, out of which they distilled 2 issues for determination as follows:-

1. Whether the Learned Trial Judge should have taken the Appellants’ Motion dated the 7th of February 2007 first and ruled one way or the other before taking the Respondent’s Motion dated the 20th of February 2007, to amongst other things amend the petition.

2. Whether the Learned trial judge was right to have proceeded to grant the prayers sught ont he Respondent’s Motion dated the 20th of February 2007 in view of the fundamental issues raised by the Appellants to the competency of the Petition and the locus standi of the Respondent as per the Appellants’ Motion dated the 7th of February 2007.

The Respondent also formulated two issues for determination as follows:-

1. Whether the Learned Trial Judge correctly-exercised his discretion in hearing and determining the Respondent’s Motion dated 20th February 2007 before the Appellants’ Motion dated 7th February 2007.

2. Whether the Learned Trial Judge correctly exercised his discretion in granting the Respondent’s aforesaid application dated 20th February 2007.

The issues formulated by the Appellants and the Respondent are the same in substance. I will therefore adopt the 2 issues formulated by the Appellants in the determination of this appeal.

APPELLANTS’ ARGUMENTS

ISSUE ONE

Learned Counsel for the Appellant relying on the cases of Nya v Edem (2005) 4 NWLR Pt 917 345 at paras 370 paras C-E and Oyibo v Toluhi (1995) 7 NWLR (Pt.408) 480 @ 493 submitted that jurisdiction is a threshold issue which should be dealt with at the earliest opportunity when raised in any proceeding. Counsel submitted that once there was an application challenging the jurisdiction of the Court, the only jurisdiction the Court had was the jurisdiction to hear the application challenging its jurisdiction first and rule one way or another. Counsel referred to African Press of Nigeria v Federal Republic of Nigeria (1985) 1 NWRL Pt.6 137 at 165; Crown Merchant Bank Ltd v Leadway Ass. (1997) 11 NWLR Pt.529 405 @ 412 and further submitted that when an action is not competent or properly constituted, the Court is robbed of the jurisdiction to entertain same and must therefore deal with the objection challenging its jurisdiction first. He relied on Ofia v Njem (2006) 11 NWLR (Pt.992) 652 @ 663.

Counsel citing various cases including Fawehinmi v Abacha & Ors (1996) 9 NWLR (Pt.47) NWLR 405 710 @ 734; Obaba & Ors v Military Governor Kwara State & Ors (1994) Pt.336 26 @ 40 submitted that the issue of jurisdiction is so fundamental that if a Court fails to address it, the defect will render the whole proceedings a nullity. Counsel attempted to distinguish the case of Nalsa and Team Associates v NNPC (1991) 8 NWLR (Pt 212) 652 on which the Learned Trial Judge placed heavy reliance in his judgment on the basis that the objection in the Nalsa case was to the competency of the appeal whereas the objection on jurisdiction in the instant case was as to the competency of the action. Counsel submitted further that the decision in the Nalsa case is consistent with the position of appellate courts to the competency of appeals but that the same does not apply when the issue of jurisdiction is raised in the lower court is as to the competency of an action.

ISSUE TWO

Learned Counsel submitted that the verifying affidavit sworn to by Taiwo Adeshina a lawyer in the Respondent’s Solicitor’s firm was fundamentally defective for non-compliance with the mandatory provisions of Rule 18(1) of the Companies Winding-Up Rules 2001 that the verifying affidavit shall be sworn to and filed by designated officers of the 4th Appellant within four days after the petition is presented and therefore cannot be substituted in the manner ordered by the lower court. Counsel argued that for the Respondent to properly bring its Petition pursuant to Section 408 (a) of the Companies and Allied Matters Act (CAMA), a special resolution must be duly passed at a meeting duly and properly convened and the resolution should require that the company be wound up by the court. In support of his argument, Counsel quoted Company Law and Practice in Nigeria by Orojo Vol. 1 page 513. Counsel submitted that however, from the affidavit evidence available to the lower court, no special resolution was passed to wind up the 4th Appellant by the Court.
Counsel submitted that the Learned Trial Judge had no jurisdiction to grant the amendments ordered because the Respondent had no locus standi to institute the Petition to wind-up the 4th Appellant under Section 408 (a) of CAMA in the first place as only the 4th Appellant itself is competent to pass a Special Resolution to wind itself up and to then present a Winding Up Petition before the Federal High Court to that end. Counsel submitted that time cannot be extended within which to file the verifying affidavit filed by Mr. Keith Brown because there was no valid Petition pending before the Learned Trial Judge in the first place. In support of this argument, Counsel cited the case of Spectra Limited v. Stabilini Visioni Limited (1999) 6 NWLR Pt 631 where Oguntade JCA as he then was stated

“…the Supreme Court held that a petition supported by a defective verifying affidavit ought to be struck out. Accordingly, the lower court ought to have struck out the petition of the petitioners…”

Counsel submitted further that the joinder of Orion Project Services Nigeria Limited (the 4th Appellant) as the 1st Petitioner was absurd and totally irregular because Orion Project Services Nigeria Limited was one of the Respondents to the Petition and also one of the Applicants who had filed an application challenging the jurisdiction of the Federal High Court to hear and entertain the Petition.

RESPONDENT’S ARGUMENTS

ISSUE ONE

Learned Counsel for the Respondent in his brief submitted that the Learned Trial Judge was right in hearing the Respondent’s Motion for amendment first because the said Motion sought to regularize the proceedings whereas the Motion challenging the jurisdiction of the court sought to terminate the proceedings.

Counsel submitted that it is trite that where there are two competing motions, one capable of terminating the proceedings and one seeking to regularize the same process, the practice has always been to give priority to hearing the Motion seeking to regularize the process. Counsel referred the Court to Mobil Producing (Nigeria) Oil Limited v. Monokpo (2003) 18 NWLR (Pt.852) 346 @ 432 paras F-H where Tobi JSC stated thus:

“Where there are two competing motions before a court of law, one urging the court to strike out or dismiss the action and the other asking for extension of time within which to regularize a procedural position, a court of law, which is a court of justice is required to take the latter motion first. It is only when the latter motion fails that the first one should be taken. This is because of the need for the court to
save the life of the action, if it is in law savable rather than burying it forever”

Counsel contended further that the principle relating to the order in which competing applications are to be taken applies even when the application to terminate is couched as an issue of jurisdiction. On this issue, Counsel referred the Court to A.G. Federation v Institute of Chartered Accountant of Nigeria & Ors (2002) 10 NWLR (Pt.776) 492 @ 507-508 paras G-A where in reviewing the decision of the Trial Court, the Court of Appeal stated thus:
“Where two applications are before the court, the one for the determination of who shall represent one of the parties in the matter and the other raising objection to the jurisdiction of the court to adjudicate in the matter, like those in the present matter, it seems to me that if the principle of fair hearing are to be adhered to, a proper exercise of judicial discretion of the court would find expression in the entertainment of the application for the determination of counsel representation.”

Counsel further submitted that the law is that where a party to an action detects an error in the proceedings which will adversely affect his chances, justice demands that she should not be denied the opportunity to amend his process. Counsel in this regard cited the case of BCE Consulting Eng v NNPC (2004) 3 NWLR (Pt.859) 1 @ 12 paras C-D where Galadima JCA stated:-
“It has been well settled in a number of cases that the courts will always assist the applicant who has a genuine application which is capable of ‘breathing life into the incompetent process’. Where a defect in proceeding which can be corrected and no miscarriage of justice would be occasioned to the opposing party and there is another seeking to nullify the court would in doing substantial justice consider the application to correct the defect”.

ISSUE TWO

Counsel submitted that the Federal High Court (FHC) is vested with jurisdiction to adjudicate on winding up petitions by virtue of Section 251 (1) (e) of the Constitution of the Federal Republic of Nigeria 1999 and the CAMA. Counsel submitted that consequently the FHC has jurisdiction to adjudicate over the winding up proceedings instituted by the Respondent and the 4th Appellant. Counsel submitted further that the Appellant’s application dated 7th February 2007 did not stricto sense challenge the jurisdiction of the court but at best challenged the initial petition and alleged irregularities on the face of the petition, which Counsel submitted the Court had jurisdiction to look into and adjudicate upon and which could not divest the Court of its jurisdiction to determine the winding up petition. Counsel cited the case of Shell Pet. Dev Co. v. H. B. Fishermen (2002) 4 NWLR (Pt.758) 505 @ 516 paras C-E where this Court explaining the meaning of Jurisdiction, held inter-alia;

“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, either charter or commission under which the court is constituted and may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance or as to area over which the jurisdiction extends or it may partake of both this character”.

Counsel submitted further that the issue of irregularity contained in the petition could best be a matter of procedural jurisdiction, which should not divest a court of jurisdiction. Counsel referred the court to Mobil v LASEPA (2002) 18 NWLR (Pt.798) 1 where the Supreme Court in determining the implication of a failure to serve Pre-action notice, differentiated between substantive jurisdiction and procedural jurisdiction and held as follows:

“…an irregularity in the exercise of jurisdiction should not be confused with a total lack of jurisdiction which takes cognizance of the general meaning of the word ‘jurisdiction’ as ‘the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision.”

Counsel submitted that a verifying affidavit attached to a petition can be amended and time can be extended for the filing of the verifying affidavit attached to a Petition. Counsel referred to Rule 181 and 182 (1) of the Companies Winding Up Rules 2001 which provides as follows:-

“the court may, in any case in which it shall see fit, extend or abridge the time appointed by the rules or fixed by any order of the court for doing any ad or taking any proceedings”.

“No proceedings under the Act or these rules shall be invalidated by any formal defect or by any irregularity unless the court before which an objection is made to the proceeding is of the opinion that injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of that court”.

Learned Counsel submitted that based on the above provisions, a verifying affidavit can be substituted and time extended to file a new affidavit. Counsel further submitted that the Appellants have not established how the defect in the initial verifying affidavit filed by the Respondent occasioned injustice to them. Counsel submitted further that the Appellants have also not established how in the event (though denied) injustice was occasioned; the same could not be remedied by an order of court. Counsel submitted that the case of Spectra Limited v Stabilini Visioni Limited (1999) 6 NWLR (Pt 631) which the Appellant cited is distinguishable and cannot avail the Appellant because the defective verifying affidavit in the Spectra’s case was not substituted or amended while in the instant case a competent verifying affidavit was substituted with the initial verifying affidavit filed. On the issue of locus standi and joinder of the 4th Appellant as 1st Respondent, Counsel submitted that the petition presented on the 22nd of December 2007 was filed by the Respondent and the 4th Appellant pursuant to a decision taken by the shareholders at an Extra-ordinary General meeting held on the 20th of December 2007 but that the Respondent inadvertently omitted to insert the name of the 4th Appellant on the petition due to the extreme urgency in securing a court order to prevent the 1st to 3rd Appellants from locking the office of the 4th Appellant. Counsel submitted that the Respondent applied to correct this error as well as change the relief it claimed in its Petition to a Winding Up under Section 408 (e) of CAMA since the 1st to 3rd Appellants refused to execute the Special Resolution prepared for the winding up of the 4th Appellant as agreed at the Extra-ordinary General meeting held on the 20th of December 2007.
Counsel submitted that based on the stated facts, the Respondent and the 4th Appellant are competent to file a petition to wind up the 4th Appellant and that the Learned Trial Judge acted within the ambit of the law and rightly exercised his discretion to grant the Respondent’s application dated 20th February 2007.

APPELLANTS REPLY BRIEF OF ARGUMENT

Counsel submitted that the issue of jurisdiction raised by the Appellants is not a matter of procedural law but that of substantive law. The Appellant cited the case of Madukolu & Ors v Nkemdilim 2 SCNLR 341; (1962) 2 ALL NLR 581 AT 589-590 where the Supreme Court held that:

“A Court is competent when

“i. …………….

ii. The subject matter of the suit is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

iii. The case comes before a court initiated by due process of law, and upon Fulfillment of any condition precedent to the exercise of jurisdiction”.

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication.”

The Appellant submitted that there are several features in the instant case which prevented the Lower Court from exercising its jurisdiction and that the action was not initiated by due process of law and upon the fulfillment of the conditions precedent to the exercise of jurisdiction. Counsel submitted that the objection to jurisdiction was therefore based on substantive law and not procedural law.
Counsel submitted that the provisions of Rule 18 (1) of the Companies Winding-Up Rules 2001 are mandatory as the section uses the word ‘shall’. Counsel argued further, relying on Ugwu v. Ararume (2007) 6 S.C, (Pt.1) 88 @ 123 it that the law is that where the word ‘shall’ is used in statutes-it means that what is required to be done is mandatory and not permissive. Counsel also submitted that the general provisions of Rule 182 of the Companies Winding-Up Rules 2001 do not override the specific provisions of Rule 18 (1) of Companies Winding-Up Rules 2001 as the law is that where there are two provisions one general and one specific, the court is entitled to presume that the draftsman intended the specific provision to govern the matter. Counsel cited Schroder & Co v. Major & Co Ltd (1982) 2 NWLR (Pt.101) 1 @ 27.
In response to the Respondent’s submission that the Appellants did not show how the defect in the initial verifying affidavit filed by the Respondent occasioned injustice to the Appellants or how the same cannot be remedied by an order of court, Counsel submitted that the Appellants filed a Counter-affidavit sworn to by Cynthia Ewetuya on the 19th of February 2007 detailing how the initial verifying affidavit occasioned injustice to them in that the Respondent used the order obtained by the defective verifying affidavit to terrorize, harass and intimidate the Appellants.

RESOLUTION

ISSUE ONE:

It would seem that in order to resolve this question, the Court has to take a look at the irregularity sought to be cured. There are three categories of irregularities that may face a court proceeding. The first category is irregularities that do not affect the jurisdiction of the Court ab initio. Where for instance, the Motion to dismiss an action is brought on ground of default of pleadings or lack of diligent prosecution, such an irregularity does not affect the jurisdiction of the Court in any way and justice demands that the application to regularize the proceedings should be heard first. The second category is where the irregularity sought to be cured affects the jurisdiction and competence of the court to adjudicate on the matter but the irregularity is curable, in the sense that the Court can grant an order to correct the irregularity. Again, in such a situation, justice demands that the application to regularize the proceedings should be heard first. The third category is where there is a total lack of jurisdiction on the part of the court. For instance if the Respondent in the instant case had filed its petition in the High Court of Lagos State or where a Petitioner files a Petition for the Dissolution of Marriage in the Federal High Court. A defect in jurisdiction in this third category cannot be corrected. The only jurisdiction the Court would have therefore when faced with a challenge of jurisdiction in this third category is to hear the application challenging its jurisdiction first and rule one way or another before taking any other application.

The challenge to the jurisdiction of the court in the instant case belongs to the second category of irregularities. The Appellants are not challenging the authority of the court to decide the petition before it, but irregularities on the face of the petition filed by the Respondent. The position of this court in the case of N.D.D.C. V Precision Association Ltd (Supra) which I am inclined to follow is that an application to regularize an action should be taken before one seeking to dismiss the same where the irregularity is curable because that irregularity does not affect jurisdiction, as well as in a situation where curing the irregularity will also correct the defect in the jurisdiction of the court.

This Court also observed as follows in the above case:-
“The Court is obliged to assist an applicant who has an application which is capable of breathing life into an incompetent process. Accordingly, where there is a defect in proceeding which can be corrected and no miscarriage would be occasioned to the opposing party, and there is another motion seeking to nullify the proceeding, the court would in doing substantial justice consider the application which seek to correct the defect”. N.D.D.C. V Precision Association Ltd (Supra) at 557 paras E-F

An incompetent process would invariably rob a Court of its jurisdiction and for a party to be seeking to nullify a proceeding; the opposing party must have made a costly mistake which in many cases would have affected the jurisdiction of the Court. However, the Courts have consistently held that an application which is capable of breathing life into a process and saving it should be heard first. I am therefore inclined to agree that this principle applies in this case though the application to terminate is presented as an issue of jurisdiction. Further, I think it is a matter within the discretion of a trial court to decide to hear the application to save the process first. If the decision of the trial court is correct on the face of it, the decision will not be tampered with by the appellate court merely because the application challenging jurisdiction was not taken first. I hold that the lower court rightly exercised its discretion to hear and determine the Respondents Motion dated 20th February 2007 before the Appellants’ Motion dated 7th February 2007.

ISSUE TWO:

In order to consider the question whether a verifying affidavit attached to a petition can be amended and whether time can be extended for the filing of a verifying affidavit attached to a petition, the two parties have referred to Rules 18 (1), 181 and 182 (1) of the companies winding Up Rules 2001 which Provide as follows:-

18(1) “Every petition shall be verified by an affidavit referring thereto. Such affidavit shall be made by the petitioner, or by one of the petitioners, if more than one or, in case the petition is presented by a company by some director, secretary, or other principal officer thereof and shall be sworn and filed within four days after the petition is presented, and such affidavit shall be sufficient prima facie evidence of the statements in the petition”.

181 “the court may, in any case in which it shall see fit, extend or abridge the time appointed by the rules or fixed by any order of the court for doing any act or taking any proceedings”.

182 (1) “No proceedings under the Act or these rules shall be invalidated by any formal defect or by any irregularity unless the court before which an objection is made to the proceeding is of the opinion that injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of that court”.

Rule 18 (1) above is not ambiguous on the requirement that a verifying affidavit should be sworn to by a principal officer of a company and I also find no ambiguity in the provisions of Rules 181 and 182 (2) to the effect that the Court may extend the time fixed by the rules for doing an act unless the court is of the opinion that extending time to correct the defect will lead to injustice that cannot be remedied by an order of the court.

Learned Counsel to the Appellants submitted that the provision of Rule 18 (1) are mandatory as that section uses the word ‘shall’ and that the law is that where the word ‘shall’ is used in statutes, it means that what is required to be done is mandatory and not permissive. Counsel also submitted that the general provisions of Rule 182 do not override the specific provisions of Rule 18 (1) as the law is that where there are two provisions one general and one specific, the court is entitled to presume that the draftsman intended the specific provision to govern the matter. Counsel cited Schroder & Co. v. Major & Co Ltd (1982) 2 NWLR (Pt.101) 1 at 27.

I have carefully studied the case of Schroder & Co v Major & Co Ltd (Supra) and the facts in that case are clearly distinguishable from the facts and circumstances of the instant case. In that case this Court as well as the Supreme Court was of the view that Order 6 Rule 16 of the High Court of Lagos State (Civil Procedure) Rules 1972 being a specific provision to deal with service of writ of summons was mandatory and must be strictly followed in the service of writ of summons and that the provisions of Order 6 Rule 15 of the said Rules which dealt generally with service of process or documents was not applicable to the service of writ of summons. In the instant case, Rule 182 (1) is what may be termed a ‘default’ rule that has a general application to the Winding Up Rules 2001 as well as the Companies and Allied Matters Act 1990 and which has a function of curtailing frivolous applications and undue adherence to technicalities at the expense of doing substantial justice in the course of court proceedings. If this Court accepts the submission of Learned Counsel on this issue, the implication will be that the provision of Rule 182 (1) is rendered otiose and of no consequence. This cannot be the intention of the drafters of the Winding-Up Rules 2001. Rule 182 (1) gives a court the power to exercise the discretion to allow irregularities to be remedied where the same will not result to injustice to the other party. To argue that this provision is not applicable where a specific rule has fixed a time frame for doing an act is ridiculous. Rule 182 (1) and similar provisions found in virtually every Procedural Law in fact complements specific provisions to ensure that justice is not sacrificed in the alter of technicalities. In any case, I am relieved to say the least, that Counsel did not make the same argument in respect to Rule 181 because if he did so, the implication will be that Courts would not have the discretion to extend time once a specific Rule of the Winding-Up Rules has fixed time for doing an act. The endorsement of such an argument will surely flood the appellate courts with cases on lack of fair hearing and miscarriage of justice.

Counsel to the Appellants had submitted in the Appellants’ reply brief that the Appellants established how the defect in the initial verifying affidavit filed by the Respondent occasioned injustice to them. I am afraid that the submission of Learned Counsel that Respondent’s purported harassment and intimidation of the Appellants with the Order obtained by the defective verifying affidavit translates to injustice to the Appellants does not quite add up. If indeed the Respondent ‘harassed and intimidated’ the Appellants with the said Order, the purported harassment and intimidation cannot be linked specifically to the defective verifying affidavit. In other words, even if the verifying affidavit was not defective, the Respondent could have still ‘harassed and intimidated’ the Appellants with an order obtained by a valid affidavit. The Appellants have therefore not established how the defect in the initial verifying affidavit filed by the Respondent occasioned injustice to them.
The law is that an Appeal Court will not interfere with a Trial Court’s exercise of discretion even if the Appeal Court is of the view that it might have exercised the discretion differently. It is only when a Trial Court exercised the discretion upon a wrong principle or mistake of law or under a misapprehension of the facts or took irrelevant or extraneous matters or excluded relevant matters thereby occasioning injustice, that an Appeal Court will interfere with the exercise of that discretion in order to prevent injustice. – See Ogolo v. Ogolo (2006) 5 NWLR (Pt.972) 163 at 180-181 paras G – D
In the instant case, the Appellants have not established how the defect in the initial verifying affidavit occasioned injustice to them and there is no reason why this court should interfere with the Trial Court’s exercise of discretion.
The submission of the Appellants’ Counsel that for the Respondent to properly bring its Petition pursuant to Section 408 (a) of the Companies and Allied Matter Act (CAMA), a special resolution of the company must be duly passed is unassailable. However, the rules of the Federal High Court allow a party to amend its processes in order to properly present the real issues at stake as well as the parties before the Court. The Respondent in the affidavit in support of its Motion dated 20th February 2007 stated that it inadvertently omitted to insert the name of the 4th Appellant on the petition due to the extreme urgency in securing a court order to prevent the 1st to 3rd Appellants from locking the office of the appellant. The Responded stated further that in view of the denial by the 3rd Appellant that there was no resolution for the winding up of the 4th Appellant, it was necessary to amend the petition for winding up on the ground that it was just and equitable to do so under Section 408 (e) of the Companies and Allied Matters Act 1990.
It is trite as has been repeated various times that a Court is obliged to assist an applicant who has an application which is capable of breathing life into an incompetent process.The Respondent in this case realized that there was a defect in its Petition which required to be rectified and applied to the court to amend its process. The Lower Court in exercise of its discretion granted the application.
The Appellant’s submission that there are several features in the instant case which prevented the Lower Court from exercising its jurisdiction and that the action was not initiated by due process of law, relying on Madukolu v. Nkemdilim (Supra) is correct to the extent that the Respondent did not attempt to correct the purported defects which prevented the Court from exercising its jurisdiction. This is the essence of the principle that an application seeking to correct a defect will be heard before one seeking to nullify the proceeding. Once the application seeking to correct a defect is heard and granted, the irregularity disappears.
On this premise, I find nothing wrong with the Respondent’s averred intention to apply to the court to amend their petition for winding up on the ground that it was just and equitable to do so under Section 408 (e) of the Companies and Allied Matters Act 1990 in order to bring its petition properly before the Trial Court; since the 1st -3rd Appellants refused to sign the resolution required to bring the petition under Section 408 (a) of the CAMA.
Certainly the Respondent has the locus standi to institute the instant action. The term Locus standi denotes legal capacity to institute legal proceedings in a court of law. It is the right of a party to appear and be heard on a question before a court. See Pam v Mohammed (2008) 16 NWLR (Pt.1112) 1 Ratio 16 SC. In order to have Locus standi to commence an action a person has to have sufficient interest in the action and as well show that his legal rights or obligations have been or are in danger of being infringed: Ojukwu v. Ojukwu (2008) 18 NWLR (Pt.1119) Ratio 4.The Respondent being one of the two Shareholders of the 4th Appellant obviously has sufficient interest in any action involving the 4th Appellant.
On the amendment of the Petition to join Orion Project Services Nigeria Limited (the 4th Appellant) as the 1st Petitioner, I do not think that the Appellants’ assertion that Orion Project Services Nigeria Limited was the initial Respondent reflects the facts as stated in the Petition to wind up Orion Project Services Nigeria Limited. In line with the procedure for the presentation of a Petition for Winding up a Company under the Winding-Up Procedure Rules 2001, the heading of the Petition before the Federal High Court (pages 4-7 of the Record of Appeal) is as follows:

IN THE MATTER OF ORION PROJECT SERVICES NIGERIA LIMITED AND IN THE MATTER OF THE COMPANIES AND ALLIED MATTERS ACT 1990.

The introductory part of the said Petition reads as follows:
‘THE HUMBLE PETITION of Orion Engineering Services (UK) Limited of Castleheather, Inverness, IC2 6M, United Kingdom (the Petitioner) shows as follows:
1. Orion Project Services Nigeria Limited (hereinafter called ‘the Company) was incorporated on the 10th day of November 2003 under the Companies and Allied Matters Act 1990 as a private company limited by shares.
The closing section of the Petition reads thus:
“YOUR PETITIONER therefore humbly prays as follows:
1. That Orion Project Nigeria Limited be wound up by the court in accordance with Section 408 (a) of the Company and Allied Matters Act 1990.
2. That the company may be ordered to pay the costs of this petition.”
A close study of the Petition before the Federal High Court with particular reference to the sections set out above do not reflect that Orion Project Services Nigeria Limited was sued as a Respondent to the Petition. The Petition which originated the winding-up process referred to Orion Project Services Nigeria Limited as ‘The Company’. Nowhere in the body of the Petition is Orion project Services Nigeria Limited referred to as a Respondent. Reading through the Records of Appeal, I saw that in some of the Affidavits deposed to on behalf of the Petitioner, Orion Project Services Nigeria Limited was referred to as ‘the Respondent Company ‘while interestingly, all the proceedings of court contained in the Record of Appeal captured Orion Project Services Nigeria Limited as ‘Plaintiff. See pages 92, 126, 133, 237, 291, 294, 297 and 299 of the Record of Appeal. Ironically, the Petitioner made provision for service of the Petition on Orion Project Services Nigeria Limited whereas Rule 17 (1) of the Company Winding-Up Rules provides that ‘every petition shall unless presented by the Company, be served on the company….’ The question here would then be why did the Petitioner serve the Petition on Orion Project Services Nigeria Limited if Orion Project Services Nigeria Limited was one of the parties that presented the petition.
Considering the above circumstances in totality, I am of the firm view that Orion Project Services UK Limited (The Petitioner) did not intend Orion Project Services Nigeria Limited to be on the ‘opposing side’ of this proceeding and that the Petitioner in deed inadvertently omitted to add Orion Project Services Nigeria Limited as the 1s Petitioner in its rush to secure a court order to prevent the 1st to 3rd Appellants from locking the office of Orion Project Services Nigeria Limited. This urgency would also explain why the Petitioner served the Petition on Orion Project Services Nigeria Limited which service was unnecessary. From all the surrounding circumstances, I find nothing absurd or curious in the amendment of the Petition to join Orion Project Services Nigeria Limited as the 1st Petitioner in order to bring the parties properly before the Court. The Appellants have not shown that the Trial Judge failed to exercise his discretion on this issue judiciously. This Court will therefore not interfere with the exercise of that discretion. I hold that the said joinder of Orion Project Services Nigeria Limited as the 1st Petitioner is valid.
The Learned Trial Judge correctly exercised his discretion in granting the Respondent’s application dated 20h February 2007. I accordingly hold that this appeal lacks merit. It is hereby dismissed. I affirm the Ruling of Tijjani Abubakar J. (as he then was) in Suit No.FHC/L/CS/1111/2006 delivered on the 25th day of July 2007. I make no order as to costs.

JOSEPH SHAGBAOR IKYEGH. J.C.A.: I was privileged to read in draft the painstaking judgment
prepared y my learned brother, Chinwe Eugenia Iyizoba, J.C.A., with which I agree and adopt as my judgment with this little addition.
The respondent’s motion dated 20-2-2007 was intended to cure a curable defect and infuse life into the petition. Whereas the appellant’s motion dated 7-2-2007 was to get rid of or destroy the petition in limine. The court below was therefore right to determine first the respondent’s motion that was to save the petition before hearing the appellant’s killer motion. The said exercise of discretion by the court below accorded with justice and fairplay, as it is the duty of the court to strive as much as possible and within permissible limit to have cases before it heard on the merits. See N.D.D.C. v. Precision Association Ltd. (2006) 16 NWLR 527 at557; Attorney General of the Federation v. Fafinwa-Onikoyi (2006) 18 NWLR 51 at 88 – 89.
The amendment of the petition to join Orion Project Services Nigeria Limited as the 1st Petitioner for the purpose of complete composition of the action as to parties was properly made by the court below. Even the Almighty God amended creation to bring into existence woman to complement man and complete the sphere of human creation. The essence of the power of amendment is therefore to make whole what has been left undone either inadvertently or by blunder or oversight, in order to avoid injustice. See Ojikutu v. Odeh 14 W.A.C.A. 540 at 541 thus –
“Blunders must take place from time to time, and it is unjust to hold that because a blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. All such cases of blunder may be remedied by payment of costs or the imposition of terms and conditions”.
That is why it is universal for rules of court to make provision for the amendment of process and/or proceeding before the court.
For the reasons rendered above and the comprehensive reasons contained in the lead judgment, I too see no substance in the appeal and hereby dismiss it and affirm the ruling of the court below (Tijjani Abubakar, J. (as he then was)). Parties to bear their costs.

RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft the lead Judgment just delivered by my brother CHINWE EUGENIA IYIZOBA JCA.
I agree with her opinion and conclusion.
The learned trial Judge, in my view exercised his discretion in granting the Respondent’s application dated 20tn February 2007. There is nothing to show that he did so erratically.
The Appeal lacks merit, and same is hereby dismissed. The Ruling of Tijjani Abubakar J. (as he then was) in suit No.FHC/L/CS/1111/2006 delivered on the 25th day of July 2007 is hereby affirmed.
No order as to costs.

Appearances

Alfred Akinjo Esq., with Adeola Gbadebo (Miss)For Appellant

AND

O. D. Nwaneri (Mrs)For Respondent