MR. KELVIN IHESIABA & ORS v. CHIEF MATHEW OCHEPA
(2015)LCN/7910(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of June, 2015
CA/J/22/2013
RATIO
COMPANY LAW: POWER OF A RECEIVER; THE PROVISION OF THE COMPANY AND ALLIED MATTERS ACT ON THE POWER OF A RECEIVER TO INSTITUTE PROCEEDINGS OR DEFEND ANY ACTION OR OTHER LEGAL PROCEEDINGS IN THE NAME AND ON BEHALF OF THE COMPANY RESIDES IN THE RECEIVER OR MANAGER
The averments contained in the statement of claim runs counter to the provisions of Section 393(1)-(5) of the Companies and Allied Matters Act (supra) which reads as follows:
“(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 Schedule 11 of this Act.
(4) As from the date of appointment of a receiver or manager, the powers of the directors or liquidators in a members’ voluntary winding up to deal with the property or undertaking over which he is appointed shall cease unless and until the receiver or manager is discharged.
(5) If, on the appointment of a receiver or manager, the company is being wound up under the provision relating to creditors’ voluntary winding up, or the property concerned is in the hands of some other officer of the Court, the liquidator or officer shall not be bound to relinquish control of such property to the receiver or manager except under the order of the Court.”
As from the date of the appointment of a receiver or manager, the powers of the directors or liquidators as the case may be, shall cease unless and until the receiver or manager is discharged. Section 567(1) of the Act (supra) defines a “Director” to include “any person occupying the position of director by whatever name called, and includes any person in accordance with whose directions or instructions the directors of the company are accustomed to act.”
From the date a receiver was appointed the control and management of the affairs of Makeri Smelting Co. Ltd. hitherto exercised by the respondent as Managing and Chief Executive Director ceased. Schedule 11 made pursuant to Section 393(3) of the Companies and Allied Matters Act Cap. C20 (supra) titled “Powers of Receivers and Managers of the whole or substantially the whole of Company’s Property” is couched as follows:
“1. Power to take possession of, collect, and get in the property of the company and, for that purpose, to take such proceedings as may seem to him expedient.
2. Power to sell or otherwise dispose of the property of the company by public auction or private contract.
3. Power to raise or borrow money and grant security therefor over the property of the company.
4. Power to appoint a solicitor or accountant or other professionally qualified person to assists him in the performance of his functions.
5. Power to bring or defend any action or other legal proceedings in the name and on behalf of the company.
6. Power to refer to arbitration any question affecting the company.
7. Power to effect and maintain insurances in respect of the business and property of the company.
8. Power to use the company’s seal.
9. Power to do all acts and to execute in the name and on behalf of the company and deed, receipt or other document.
10. Power to draw, accept, make and endorse any bill of exchange or promissory note in the name and on behalf of the company.
11. Power to appoint any agent to do any business which he is unable to do himself or which can more conveniently be done by an agent and power to employ and dismiss employees.
12. Power to do all such things (including the carrying out of works) as may be necessary for the realization of the property of the company.
13. Power to make any payment which is necessary or incidental to the performance of his functions.
14. Power to carry on the business of the company.
15. Power to establish subsidiaries of the company.
16. Power to transfer to subsidiaries of the company the whole or any part of the business, and property of the company.
17. Power to grant or accept a surrender of a lease or tenancy of any of the property required or convenient for the business of the company.
18. Power to make any arrangement or compromises on behalf of the company.
19. Power to call up any uncalled capital of the company.
20. Power to rank and claim in the bankruptcy, insolvency, sequestration or liquidation of any person indebted to the company and to receive dividends, and to accede to trust deeds for the creditors of any such person.
21. Power to present or defend a petition for the winding up of the company.
22. Power to change the situation of the company’s registered office.
23. Power to do all other things incidental to the exercise of the foregoing powers.”
From the date a receiver or manager is appointed, the power to institute proceedings or defend any action or other legal proceedings in the name and on behalf of the company resides in the receiver or manager. The fact that a receiver or manager had been appointed does not extinguish the company; it still exists, and ought to be sued along with the receiver or manager as the case may be. The appellants have not challenged the striking out of Makeri Smelting Co. Ltd. from the proceedings. per. JOSEPH TINE TUR, J.C.A.
APPEAL: ISSUES FOR DETERMINATION; WHETHER AN APPELLATE COURT WILL NOT DETERMINE ISSUES NOT PROPERLY BEFORE IT
The Appeal Court determines only lives issues. The Court will not pronounce on an issue not properly before it. See Chief John Oyegun vs. Chief Francis Arthur Nzeribe (2010) 6 SCNJ 74 and Wachukwu & Anor. vs. Onwunwanne & Anor. (2011) 5 SCNJ 197. per. JOSEPH TINE TUR, J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
1. MR. KELVIN IHESIABA
2. MR. SIMON ADAMU
3. MR. DANLADI ALI
4. MR. YOHANNA ABBA
5. MR. EMMANUEL OGBAKA
6. MR. GODWIN UKUNG
7. MR. JAMES MARI
8. MR. MICHAEL ABAH Appellant(s)
AND
CHIEF MATHEW OCHEPA Respondent(s)
JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment): The appellants alleged that at diverse occasions the respondent employed them to work as security guards in Makeri Smelting Company Ltd., a company under receivership at the time this suit was filed in the Court below on 15th December, 2005. Their appointments were in the course of performing their respective duties terminated without the payment of their individual salaries and allowances.
The respondent alleged in paragraph 4(a)-(h) of their defences that in the course of the performance of their duties it was discovered that 20 bags of columbite each weighing about 50kg i.e almost one ton, kept under key and lock disappeared from the premises on the 1st respondent. The appellants usually kept the keys to the warehouse where the columbite was stored. Police invited to investigate the theft found that an analyzing machine was also missing. Only the 2nd respondent filed a statement of defence on 31st May, 2006 denying liability. 2nd respondent prayed that the suit be struck out for lack of jurisdiction. Alternatively, that the name of the 2nd respondent should be struck out on the grounds that the 1st respondent is under receivership. The proper party to have been sued is the Receiver/Manager of the 1st respondent. The 2nd respondent was therefore misjoined in the proceedings, he being an agent of a disclosed principal. Counsel addressed the Court. Hon. Justice R.K. Sha (Mrs) of the High Court of Justice, Plateau State, sitting in Jos, in a considered ruling delivered on 5th February, 2009 struck out the substantive suit, holding at page 86 lines 19 to page 87 lines 1-2 of the printed record as follows:
“On the whole, I agree with learned Counsel to the 2nd defendant, Mr. Madugu that the suit of the plaintiffs is incompetent before the Court for reason of non-joinder and misjoinder. Learned plaintiffs’ Counsel had in his arguments submitted that the 2nd defendant was not competent to raise this objection on behalf of the 1st defendant, I think he can since it is a matter that affects the jurisdiction of this Court. In my view the objection succeeds. This suit is hereby struck out for lack of competence.”
Aggrieved by the ruling the appellants incorporated three grounds of appeal to their Notice of Appeal filed on 21st May, 2013 pursuant to an order of the Court of Appeal made on 17th May, 2012. The appellants filed a brief of argument on 4th July, 2013 with a deeming order made on 26th May, 2014. The respondent’s brief was settled by Solomon Umoh, SAN and filed on 10th September, 2014 with a deeming order on 3rd March, 2015. When the appeal came up for hearing on 24th March, 2015 Counsel adopted their respective briefs of argument. The learned silk referred to the preliminary objection filed on behalf of the respondent to the hearing of the substantive appeal on the following grounds:
“(1) The proper party i.e defendant is not before the Honourable Court.
PARTICULARS:
(a) The 1st defendant is a company under receivership.
(b) The proper defendant in this action is the receiver/manager of the 1st defendant.
(2) There is a misjoinder of 2nd defendant in this suit.
PARTICULARS:
(a) The 2nd defendant acted as an agent of a disclosed principal at all times material to this action.”
This prompted the appellants to file a reply brief on 23rd March, 2015 with a deeming order made on 24th March, 2015. This was also adopted at the hearing of the appeal on 24th March, 2015. I shall consider the preliminary objection before I delve into the substantive appeal. The appellants named Chief Mathew Ochepa as the only respondent in the Notice of Appeal thereby dropping Makeri Smelting Company Ltd. (under Receivership) in the appeal proceedings. The legal effect is that the appellants have conceded to the ruling of the learned trial Judge.
The learned silk submitted that this appeal is incompetent on account of the parties, citing Adelekun vs. Oruku (2006) 11 NWLR (Pt.992) 625 at 646-647 paragraphs “E”-“B”; PPA vs. INEC (2012) 13 NWLR (Pt.1317) 215 at 237 paragraphs “C”-“E”. It was further contended that all appeals shall be by way of a rehearing under Order 6 rules 2(1) of the Court of Appeal Rules, 2011. As parties on appeal are different from parties in the Lower Court, the learned silk urged that the Notice of Appeal should be struck out, citing Odedo vs. INEC (2008) 17 NWLR (Pt.1117) 554 at 630.
The learned silk further urged this Court to hold that the appellants should be deemed to have conceded to the ruling of the learned trial Judge that the Court lacked jurisdiction to have entertained the substantive suit, which holding the appellants have not challenged on appeal, citing Gundiri vs. Nyako (2014) 2 NWLR (Pt.1391) 211 at 253 paragraphs “B”-“H”.
Learned silk again submitted that there were eight plaintiffs and two defendants in the Lower Court, all together adding to ten parties in litigation in suit No.PLD/J/474/2005 when Sha, J., ruled on 5th February, 2009. However there are eight appellants and one respondent on appeal bringing the total to nine parties. The order in which the appellants sued the respondents in the Lower Court has been altered as the 4th -6th appellants on the writ of summons and statement of claim are not the same as the order in which they were listed on the appellants’ Notice of Appeal contained in the record of proceedings.
Learned silk’s contention is that issues one and two distilled for determination by the appellants were not formulated from a competent notice and grounds of appeal and should be struck out, citing A.I.B. Ltd. vs. I.D.S. Ltd. (Without the law report); Akpan vs. Bob (2010) 17 NWLR (Pt.1223) 42 at 468; Ajuwa vs. S.P.D.C. (Nig.) Ltd. (2008) 10 NWLR (Pt.1094) 64 at 96 paragraph “H”; Abdul vs. C.P.C. (2014) 1 NWLR (Pt.1388) 299. Learned Counsel urged this Court to uphold the preliminary objection and strike out the substantive appeal.
Learned Counsel to the appellants’ argument is that the 1st defendant in the Court below is no longer a party in the appeal proceedings. That per se cannot render the Notice of Appeal incompetent. A party has the right to decide the persons to proceed against on appeal, citing Attorney-General, Rivers State vs. Attorney-General, Akwa-Ibom State (2011) 8 NWLR (Pt.1248) 31. Where a party has joint and several demands against one or more persons, such a party can proceed against all or any of the persons he chooses to sue. The party cannot be compelled to sue or join persons he has no claim against, citing Crown Flour Mills Ltd. vs. Pastor Kunle Aluko Olokun (2008) 254 at 282 paragraphs “C”-“D”. On the issue of parties, learned Counsel contended that in Adelakun vs. Oruku (supra) cited by the learned silk, the description of the parties in the Lower Court was different from that on appeal. The parties on appeal were not the same as at the trial Court.
These factors distinguished the facts in that appeal with the present under consideration hence the authorities cited by the learned silk in argument are inapplicable. Learned Counsel urged this Court to dismiss the preliminary objection and determine the appeal on the merit.
The preliminary objection hinges on the competency of the Notice and Grounds of Appeal including the named parties, whether they are same as appeared on the writ of summons and the statement of claim. I shall reproduce the Notice and Grounds of Appeal to show the named appellants and the respondent who will be directly to be directly affected by the result of this appeal to wit:
“GROUND ONE: The Honourable trial Court with utmost respect erred in law when it held that “the CAMA i.e the Companies and Allied Matters Act of 1990, as I have already said, clearly makes the Receiver a necessary party to any suit.”
PARTICULARS:
(a) Schedule II on Section 393(3) of the Companies and Allied Matters Act of 1990 did not make a Receiver a necessary party in any suit but only gave the Receiver under clause 5 of the said Schedule “power to bring or defend any action or legal proceedings in the name and on behalf of the company.”
(b) Thus the writ of summons was addressed for service to the “The Receiver Manager, Makeri Smelting Company Ltd. No.58 Yakubu Gowon Way, Jos, Plateau State.
GROUND TWO: The trial Honourable Court with utmost respect, erred in law when it struck out the appellant’s suit for non-joinder of the 1st respondent’s Receiver Company as a party to the action or suit.
PARTICULARS:
(a) The writ of summons disclosed that the 1st respondent was under receivership.
(b) The writ of summons was addressed for service on two persons thus: “The Receiver Manager, Makeri Smelting Company Ltd. No.58 Yakubu Gowon Way, Jos, Plateau State.
(c) The 2nd respondent was not competent to raise the objection on behalf of the 1st respondent, having not filed a memo of appearance to that effect.
GROUND THREE: That the trial Honourable Court with utmost respect erred in law when it ruled that the appellants’ suit lack competence for misjoinder of the 2nd respondent to this action.
PARTICULARS:
(a) The appellants joint statement of claim (paragraph 2) discloses the fact that the 2nd respondent is the alter ego or control or directs or owns or engaged the appellants for the 1st respondent.
(b) The appellants’ joint statement of claim discloses sufficient facts on the relationship between the appellants and the respondent.
(c) Other grounds of appeal will be filed on receipt of the judgment and records.
RELIEFS SOUGHT FROM COURT OF APPEAL:
(a) Allow the appeal and set aside the ruling of the trial High Court made on 5th February, 2009.
(c) Transfer the hearing and/or trial of the suit and/or issues to another Court.
PERSONS DIRECTLY AFFECTED BY THE APPEAL:
1. Makeri Smelting Company (Under Receivership) – 1st respondent.
2. Chief Mathew Ochepa – 2nd respondent.
Dated this 4th day of July, 2011.
SGD.
PRINCE AKUZAMUS M.G. ANAKWE
PP: Akuzamus Anakwe & Associates.
For Service On:
1. The 1st respondent, the Receiver Manager, Makeri Smelting Co. Ltd., No.58 Yakubu Gowon Way, Jos.
2. The 2nd respondent, C/o His Solicitors, Solomon E. Umoh, Esq., Solomon E. Umoh & Co. No.10 Beach Road, Jos.
Filed pursuant to order of Court granted on the 17th day of May, 2012.”
Makeri Smelting Company to be affected by the outcome of this appeal is not a party in the Notice of Appeal.
The above is to be contrasted with the writ and statement of claim:
“BETWEEN:
9. Mr. Kelvin Ihesiaba
10. Mr. Simon Adamu
11. Mr. Danladi Ali
12. Mr. Godwin Ukung PLAINTIFFS
13. Mr. Yohanna Abba
14. Mr. Emmanuel Ogbaka
15. Mr. James Mari
16. Mr. Michael Abah
AND
3. Makeri Smelting Company Ltd.
(Under Receivership) DEFENDANTS.”
4. Chief Mathew Ochepa
Paragraph 14 of the statement of claim sets out the reliefs claimed by the appellants in the Lower Court as follows:
“14. Whereof the plaintiffs claim against the defendants jointly and severally the following:
(1) xxxxxxxxx
(2) The plaintiffs each also claim N1,000,000.00 (One Million Naira) general damages jointly and severally against the defendants for the suffering, pains and humiliation caused them.
(4) Refund of all NSIFT deductions made to each of the plaintiff.
(5) Refund of all the income taxes to each of the plaintiff.
(6) The cost of this action.”
An examination of the writ of summons and statement of claim will show that the appellants were claiming “against the defendants jointly and severally as follows:”
If upon striking out the name of Makeri Smelting Co. Ltd. appellants filed a joint Notice of Appeal but dropped Makeri Smelting Coy. Ltd. from the appeal to proceed against Chief Mathew Ochepa as the sole respondent in this appeal, I do not see what is wrong with that. Order 1 rule 5 of the Court of Appeal Rules, 2011 defines a respondent as follows:
“…in civil appeals, means, any party (other than the appellant) directly affected by the appeal; and in a criminal appeal means the person who undertakes the defence of the judgment appealed against.”
The onus will be for the appellants to show how Chief Mathew Ochepa as respondent can be said to be a person to be directly affected by this appeal.
In my humble opinion the appellants are at liberty to appeal against any party named in the proceedings in the trial Court provided he is directly affected by the appeal. For instance, if no relief is claimed against a party, no issue is joined either in the Court of trial or on appeal. The proper order to make will be to strike out the name of such a party. See Isamotu Otanioku vs. Lawal Mustafa (1977) 11-12 SC 9. Therefore, if the appellant holds the view that Makeri Smelting Company Ltd. (Under Receivership) is not to be directly affected by the result or outcome of the appeal they reserve the right not to proceed against the company on appeal. An appeal is a continuation of the hearing that commenced in the Lower Court. See Order 6 rule 2(1) of the Court of Appeal Rules, 2011. The plaintiffs upon filing an appeal, are at liberty to decide who will be directly affected by the outcome of the appeal. And such a party would be named in the Notice of Appeal if there is any, to enable the processes to be effected upon him/her. Since the appellants were of the view that Makeri Smelting Company Ltd. (Under Receivership) would not be affected directly by the outcome of the appeal, there is no law which prohibits the appellants dropping the company’s name from the appeal proceedings. The order in which the names of the plaintiff appear in the Notice of Appeal does not in any way lead to a miscarriage of justice.
The appellants formulated the following issues for determination by this Court:
“1. Whether the receiver is a necessary party to this suit vis-Ã -vis paragraph 5 of the Eleventh Schedule to Section 393(3), and Section 393(3) Company and Allied Matters Act, 2004. This issue is distilled from grounds 1 and 2 of the grounds of appeal.
2. Whether the appellants’ suit lack competence for misjoinder of the respondent? This issue is distilled from ground 3 of the grounds of appeal.”
In considering these issues, I shall refer to page 84 lines 21 to page 87 lines 1-2 of the printed record reads as follows:
“A look at the names of the parties to this action given on the writs above show only two defendants, Makeri Smelting company Ltd., and Chief Ochepa.
The words “under receivership” added in italics under the name “Makeri Smelting Company Ltd.” appear to me merely explanatory. In my view, it explains the fact that the company is under a receiver. Even if the Court were to agree with the plaintiffs that “Receiver Manager” is a party to the suit, who is this Receiver Manager? Who is the person to be served? Infact no where is the name of the Receiver given in the writ. The persons the plaintiffs are suing are clearly stated on the writ as
1. Makeri Smelting Co. Ltd. and
2. Chief Mathew Ochepa.
It is only in the joint Statement of Claim that the Receiver’s name is mentioned. Indeed, it is my finding that the Receiver of the 1st defendant is not made a party to this action.
The next question is whether the Receiver of the 1st defendant is a necessary party whose absence in the suit renders the suit incompetent thereby robbing the Court of jurisdiction to hear same. Paragraph 5 of Schedule 11 to Section 393(3) of the Companies and Allied Matters Act (CAMA) of 1990 clearly makes the Receiver a necessary party to any suit concerning the company in question. Moreover, the second paragraph of the plaintiffs’ joint Statement of Claim (carelessly numbered paragraph 7 instead of paragraph (2) which disclosed who the Receiver is also showed the Receiver as the person in control of the 1st defendant. This paragraph says:
“The defendant is now under the control and management of the Receiver Manager, Messrs Danjuma Tyoden and Company, a firm of Legal Practitioner based here in Jos, Plateau State…”
The person in control of 1st defendant is Danjuma Tyoden and Company, common sense and the Law dictates that they be made a party. Indeed, it is elementary law that a Court cannot make any order against a party not before it. That apart, the CAMA i.e. the Companies Allied Matters Act of 1990, as I have already said, clearly makes the Receiver a necessary party to any suit. I therefore agree with all the submissions of learned Counsel for the 2nd defendant, A. Madugu, Esq., and hold that the Receiver of the 1st defendant company is a necessary party to this suit, and that having not been joined to this suit renders the suit incompetent.
On the question whether the 2nd defendant is misjoined in the suit, I do not think the question deserves much attention. It does appear, with the greatest respect, that there is confusion in the mind of the plaintiffs, concerning who they should sue. After averring in paragraph 2 of their joint Statement of Claim (which paragraph is numbered 7) that 1st defendant is now under the control and management of a firm of Legal Practitioners, Danjuma Tyoden & Co., who have been made Receiver of the 1st defendant, they then turned round to state that:
“The 2nd defendant is the one who controls and/or directs the administration and expenditures of any money in the name of the 1st defendant.”
On the whole, I agree with learned Counsel to the 2nd defendant, Mr. Madugu that the suit of the plaintiffs is incompetent before the Court for reason of non-joinder and misjoinder. Learned plaintiffs’ Counsel had in his arguments submitted that the 2nd defendant was not competent to raise this objection on behalf of the 1st defendant, I think he can since it is a matter that affects the jurisdiction of this Court. In my view the objection succeeds. This suit is hereby struck out for lack of competence.”
Where the Receiver/Manager is not joined in the suit in the Court below and Makeri Smelting Company Ltd.’s name had been dropped from the Notice of Appeal, can the appellants maintain or continue with the appeal against the current respondent? I do not think so. The respondent is described in the writ of summons and statement of claim as the “Managing Director and Chief Executive” of Makeri Smelting Company Ltd., a disclosed principal.
In this appeal Chief Mathew Ochepa is not described in the writ of summons and the statement of claim as the receiver or manager but in paragraph 8 (rather 3) of the claim he is described as the “Managing Director, the Chief Executive Officer, and the alter ego, the determinant force and for persona behind the 2nd defendant… The 2nd defendant is the one who controls and/or directs the administration and expenditures of any money in the name of the 1st defendant.” Paragraph 3 of the 2nd defendant’s statement of defence pleads that, “The 2nd defendant admits paragraph 3 only to the extent that he was the Managing Director of the 1st defendant now under receivership.” The averments contained in the statement of claim runs counter to the provisions of Section 393(1)-(5) of the Companies and Allied Matters Act (supra) which reads as follows:
“(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 Schedule 11 of this Act.
(4) As from the date of appointment of a receiver or manager, the powers of the directors or liquidators in a members’ voluntary winding up to deal with the property or undertaking over which he is appointed shall cease unless and until the receiver or manager is discharged.
(5) If, on the appointment of a receiver or manager, the company is being wound up under the provision relating to creditors’ voluntary winding up, or the property concerned is in the hands of some other officer of the Court, the liquidator or officer shall not be bound to relinquish control of such property to the receiver or manager except under the order of the Court.”
As from the date of the appointment of a receiver or manager, the powers of the directors or liquidators as the case may be, shall cease unless and until the receiver or manager is discharged. Section 567(1) of the Act (supra) defines a “Director” to include “any person occupying the position of director by whatever name called, and includes any person in accordance with whose directions or instructions the directors of the company are accustomed to act.”
From the date a receiver was appointed the control and management of the affairs of Makeri Smelting Co. Ltd. hitherto exercised by the respondent as Managing and Chief Executive Director ceased. Schedule 11 made pursuant to Section 393(3) of the Companies and Allied Matters Act Cap. C20 (supra) titled “Powers of Receivers and Managers of the whole or substantially the whole of Company’s Property” is couched as follows:
“1. Power to take possession of, collect, and get in the property of the company and, for that purpose, to take such proceedings as may seem to him expedient.
2. Power to sell or otherwise dispose of the property of the company by public auction or private contract.
3. Power to raise or borrow money and grant security therefor over the property of the company.
4. Power to appoint a solicitor or accountant or other professionally qualified person to assists him in the performance of his functions.
5. Power to bring or defend any action or other legal proceedings in the name and on behalf of the company.
6. Power to refer to arbitration any question affecting the company.
7. Power to effect and maintain insurances in respect of the business and property of the company.
8. Power to use the company’s seal.
9. Power to do all acts and to execute in the name and on behalf of the company and deed, receipt or other document.
10. Power to draw, accept, make and endorse any bill of exchange or promissory note in the name and on behalf of the company.
11. Power to appoint any agent to do any business which he is unable to do himself or which can more conveniently be done by an agent and power to employ and dismiss employees.
12. Power to do all such things (including the carrying out of works) as may be necessary for the realization of the property of the company.
13. Power to make any payment which is necessary or incidental to the performance of his functions.
14. Power to carry on the business of the company.
15. Power to establish subsidiaries of the company.
16. Power to transfer to subsidiaries of the company the whole or any part of the business, and property of the company.
17. Power to grant or accept a surrender of a lease or tenancy of any of the property required or convenient for the business of the company.
18. Power to make any arrangement or compromises on behalf of the company.
19. Power to call up any uncalled capital of the company.
20. Power to rank and claim in the bankruptcy, insolvency, sequestration or liquidation of any person indebted to the company and to receive dividends, and to accede to trust deeds for the creditors of any such person.
21. Power to present or defend a petition for the winding up of the company.
22. Power to change the situation of the company’s registered office.
23. Power to do all other things incidental to the exercise of the foregoing powers.”
From the date a receiver or manager is appointed, the power to institute proceedings or defend any action or other legal proceedings in the name and on behalf of the company resides in the receiver or manager. The fact that a receiver or manager had been appointed does not extinguish the company; it still exists, and ought to be sued along with the receiver or manager as the case may be. The appellants have not challenged the striking out of Makeri Smelting Co. Ltd. from the proceedings.
The Appeal Court determines only lives issues. The Court will not pronounce on an issue not properly before it. See Chief John Oyegun vs. Chief Francis Arthur Nzeribe (2010) 6 SCNJ 74 and Wachukwu & Anor. vs. Onwunwanne & Anor. (2011) 5 SCNJ 197.
As for the respondent he is not a necessary party having proprietary interest in the subject matter in dispute and should not have been made a party in the Court below and in this appeal. See Ngwu vs. Ozorkwu (1999) 11-12 SCNJ 1 at 15. In Onibudo & Ors. vs. Akibu & Ors. (1982) 7 SC 60, Aniagolu, JSC said at page 72 that:
“The plaintiffs filed their statement of claim pursuant to the order of Court. It was clear, however, from the statement of claim, that at the close of the plaintiffs’ pleadings nothing by way of civil injury, had been alleged against either the named defendants or the Oko Owo Muslim Community.”
His Lordship held at page 75 of the judgment as follows:
“What the defendants should have done at the close of plaintiffs’ pleadings, was to move the Court, as they were perfectly entitled to do under the Rules, to strike out the claim, and the statement of claim, as disclosing no cause of action, against the defendants. This they did not do. Instead they proceeded to file their statement of defence and answer the plaintiffs’ pleadings.
Provisions have been made, in lieu of the old procedure of Demurer which in most cases have been abolished, in the High Court Rules of the various States in the country, for peremptorily disposing of cases at the close of plaintiffs’ statement of claim or at the close of both the plaintiff’s and defendant’s pleadings. The issue, in the Eastern States, for example, is dealt with under Order XXIX of the High Court Rules, 1963, Laws of Eastern Nigeria and, in the Western States, in Order 22 of the High Court Civil Procedure Rules. In each case the Court is empowered to dismiss the plaintiff’s case, or the defence, or strike out the pleadings of either the plaintiff or the defendant or both, or act upon any point of law on which the Court is satisfied the case may be disposed of, either in part or in whole.
The Court may do this, and often does this, without hearing any evidence (See: K. Onwonta vs. E.J. Minaise (1952) 14 WACA 77). The misconception held by some, based on Odiye vs. Obor (1974) 2 SC 21 at 31, that once pleadings have been filed by the plaintiff and the defendant, the Court is obliged to hear evidence and can only dispose of the case upon a determination of the evidence so heard, was recently rejected by this Court in SC.29/1981 Lasisi Fadare and Others vs. Attorney-General of Oyo State decided on 2nd April, 1982 (yet unreported). Part of what this Court held in the case was that:
“…the preliminary objection point of law can be taken after the receipt of the statement of claim and before any defence is filed. The party in such a case relies on point of fact in the statement of claim are conceded. If he fails, an order would be made by the Court ordering the filing of a statement of defence and the suit would proceed to trial.”
In the Lagos State, from where this case originated, similar provision has been made which would have enabled the defendants to peremptorily have the case struck out or dismissed, without filing their statement of defence, or going into any form of trial. It is Order 22 of the High Court of Lagos Stat (Civil Procedure) Rules Cap. 52 Vol.III of the Laws of the Lagos State of Nigeria.”
In Osigwe vs. PSPLS (2009) 1 SCNJ 1 Musdapher, JSC held at page 16-17 that:
“I am of the view that the appellant has woefully failed to show the existence of any reasonable cause of action against the respondents herein. It is settled law that there must be a cause of action before an intending litigant can initiate any legitimate proceedings. A suit is aimed at vindicating some legal right or claim and such legal right can only arise when certain material facts arise. In the instant case the respondents were merely to register would be purchaser of shares under the scheme. It was not the function of any of the respondents herein to issue, for example, a prospectus or to carry out any of the statutory functions recited above. See Oshoboja vs. Amuda (1992) 7 SCNJ 317 at 326. It is only when facts establishing a civil right or obligation and facts establishing infraction or trespass on that right and obligation exist side by side that a cause of action is said to accrue. See Afolayan vs. Ogunrinde (1990) 1 NWLR (Pt.369) at 382. From the originating claim, I cannot find any reasonable cause of action revealed by the appellant against any of the respondents herein and it is settled law that it is only the Writ of Summons or the Statement of Claim that one has to look at to see if there is a cause of action. See Adesokan vs. Adegorolu (1977) 3 SCNJ 1.
Again, it is clear from the appellant’s pleading that each of the respondents herein is merely an agent of the BPE solely appointed for the registration of would be purchasers of the shares of the public Companies to be privatized. The respondent, also by the pleading of the appellant, are unmistakably agents of a revealed principal and as agents they cannot be liable under all the circumstances of this case. See Okafor vs. Ezenwa (supra). It is manifestly clear that the respondents acted at all the material times in this matter and in relation to PSPLS scheme as agents and on behalf of the PBE and in accordance with the directives of the BPE. Every action or in-action the appellant complained of against the respondent could only arise, if any, in the course of discharging the duties and responsibilities entrusted to them by a known and fully disclosed principal. An agent acting on behalf of a known and disclosed principal incurs no personal liability. See Niger Progress case (supra).”
On the whole, the preliminary objection succeeds. The appellants have not shown how and why the respondent is a person to be directly affected by the outcome or result of this appeal. The appeal stands dismissed. The ruling of the learned trial Judge is upheld. No order as to costs.
IBRAHIM SHATA BDLIYA, J.C.A.: My Lord, TUR, JCA availed me a draft copy of the judgment just delivered before now. Having read same, I agree entirely with the reasonings and decision arrived at therein. The appeal lacks merit, same ought to, and is hereby dismissed by me. I make no order as to costs.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had the ample opportunity of reading in draft the judgment delivered by my learned brother, JOSEPH TINE TUR, JCA who presided over the matter. My lord has painstakingly took his precious time to consider the issues raised in this appeal and I entirely agreed with the reasoning and conclusion therein. I have nothing useful to add and therefore uphold the preliminary objection to the appeal and dismissed same.
The ruling of the trial Court also upheld and made no order as to costs.
Appearances
T. G. Lengs, Esq.For Appellant
AND
Solomon Umoh, SAN with N. D. Gioaison, Esq.; Mrs. E. N. Eze, Esq.; J.E. Okonkwo, Esq.; F. B. Ede, Esq.; E. O. Oyadiji, Esq.; Y. Nze, Esq. (Mrs); Y. J. Kumsat, Esq.; N. M. Naron (Miss), Esq.; and R. S. Bello (Miss), Esq.For Respondent
