OYO STATE PAPER MILLS LIMITED & ORS v. NIBEL COMPANY NIGERIA LIMITED (2016)

OYO STATE PAPER MILLS LIMITED & ORS v. NIBEL COMPANY NIGERIA LIMITED

(2016)LCN/8223(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of February, 2016

CA/IB/258/2013

RATIO

APPEAL: THE IMPLICATION OF ANY FINDING OF THE COURT FOR WHICH THERE IS NO APPEAL
It is trite law that, any finding of the Court for which there is no appeal, is deemed conceded to and therefore established. per. HARUNA SIMON TSAMMANI, J.C.A.

ISSUE ESTOPPEL: WHETHER A PARTY IS ESTOPPED FROM LITIGATING ON AN ISSUE WHICH HAD BEEN PREVIOUSLY LITIGATED AND PRONOUNCE UPON BY THE COURT

I find it necessary to state at this juncture that, the law as settled is that a party is estopped from litigating on an issue which had been previously litigated and pronounced upon by the Court. For a party to successfully plead issue estoppel, it must be shown that:
(a) The issue raised is one that has been raised and decided by the Court;
(b) The judicial decision which gave rise to the estoppel or created the estoppel is final; It therefore mean that an interlocutory decision will not give rise to a successful plea of issue estoppel;
(c) The parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which estoppel is raised;
Issue estoppel therefore arises where an issue had earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes again in question in any subsequent proceedings between the same parties. Issue estoppel may arise in the same proceeding, where the issue had been raised and determined in an earlier stage of the proceedings, and is again raised at a later stage of the same proceedings. See Bamgbegbin v. Oriare (2009) 13 NWLR (Pt, 158) P. 370; Makun v. Federal University of Technology, Minna (2011) 18 NWLR (Pt. 1278) P. 190 and Nikbgbatse v, Opuye (2010) 14 NWLR (Pt. 1213) P.50. To determine whether an issue in question constitutes issue estoppel, a Court would look at the issues that call for determination in the case and the issue that was resolved in the previous decision. A party relying on issue estoppels must therefore show that the issues raised and determined in the previous decision were the same as those in the present suit. See Oshoboja v. Dada (2009) 18 NWLR (Pt. 1172) P. 188 and Ikeni v. Efamo (1996) 5 NWLR (Pt. 445) P. 64. per. HARUNA SIMON TSAMMANI, J.C.A.

COURT: JURISDICTION; WHEN JURISDICTION CAN BE RAISED

Jurisdiction being the life wire of any suit, can be raised at any time, either before the Court hearing the matter on appeal. That being so, even where a Court has decided on its jurisdiction to hear a matter, the same matter of jurisdiction may be raised before the same Court, at a later stage of the proceeding, if fresh facts have emerged which take the matter out of the jurisdiction of the Court. Thus, My Lord, I. T. Muhammad, JSC in the case of A & S.B. Co. (Nig.) Ltd v. F.C.M.B. Ltd (2013) 10 NWLR (pt, 1363) p. 501 at p. 528 paragraphs D – E held that:-
The position of the law as adumbrated somewhere, is that where the Court of Appeal has ruled that the lower Court lacks jurisdiction over a matter, this decision would not estop the same Court from “reversing itself” in the same case between the same parties (as in this case) on the issue of jurisdiction should fresh arguments or some other relevant statutes on the matter be brought to its attention as in the case of Akinbobola v. Plisson Fisko Nigeria Limited (1991) 1 NWLR (pt. 167) 270 at pp. 276-277. per. HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

1. OYO STATE PAPER MILLS LIMITED
2. MINISTRY OF TRADE AND CO-OPERATIVES, OYO STATE
3. OYO STATE FINANCE AND INVESTMENT CORPORATION
4. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, OYO STATE Appellant(s)

AND

NIBEL COMPANY NIGERIA LIMITED Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Federal High Court, sitting at Ibadan, delivered by A. O. Adejumo-Obaseki, J (as he then was) on the 16th day of April, 2013.

?By a petition for winding up of the 1st Appellant dated and filed on the 30th August, 2012, the Respondent as the petitioner sought the following reliefs:
(a) That Oyo State Paper Mills Limited be wound up by the Court under the provisions of the Companies and Allied Matters Act, Cap C20, Laws of the Federation, 2004; and
(b) For such order or other orders as the Honourable Court may deem fit to make in the circumstances.

Several documents were filed along with the petition, and which petition was duly verified by an affidavit deposed to by one Alaiyeluwa Adesesan Afolorunsho Oguntayo, the Managing Director of the Petitioner/Appellant, on the 30/08/2012. See pages 1 – 113 of the main Record of Appeal transmitted to this Court on the 23/7/2013. However, the Appellants filed a Motion dated the 2nd day of October, 2012,wherein they contested the competence of the petition. The said Motion which is at pages 1 and 2

of the Additional Record of Appeal, prayed the Court for:
(1). AN ORDER DISMISSING and/or striking out this petition in limine as the petitioner failed to satisfy the prerequisite conditions to the commencement of the instant petition before this Honourable Court
(2) AN ORDER DECLARING the instant petition as being incompetent and simultaneously constitutes an abuse of Court process.
(3). AND FOR SUCH further orders(s) as this Honourable Court may deem fit to make in the circumstances.

The Grounds upon which the objection was predicated are:
(a) That none of the statutory required steps to be taken before petition for winding up proceedings is filed, was satisfied before the instant petition was filed
(b) That the petitioner had all along since the incorporation of the 1st Respondent/Applicant administering, controlling and/or overseeing the affairs of the 1st Respondent/Applicant in one capacity or the other.
(c) That whatever purported shortcomings that be attributed to the 1st Respondent/Applicant, same were caused or occasioned by the action or inaction of the petitioner.
?
The Motion was supported by an affidavit and

a written Address. The Respondent on record who was the petitioner opposed the Motion and accordingly filed a counter-Affidavit and a written Address. See pages 1-48 of the Additional Record of Appeal. Ruling on the objection or Motion, the learned trial Judge held as follows:
?In this case, the Respondent has filed the Motion on a preliminary objection asking that the petition failed to meet the requirement of statute – CAMA. I have examined that affidavit attached and found that it is an answer to the petition but not on the allegation contained therein. These facts go to the root of the petition and not precondition to the petition. The petition is governed by CAMA and winding up rules Respondents have fallen on the Federal High Court Procedure Rules and find are triable in the hearing of the petition. The Respondent has in my view failed to back up Paragraphs 10,11, 12, 13,14, 16, 22 and 23 therein.
The Winding-Up Rules, 2001, in Rules 24, 25 and 23(5) says:- failure to appear in compliance with the rules, appearance shall be with special leave. Rules 25(1) says affidavit of opposition shall be with 10 copies of service. The

Respondents filed counter-Affidavit on 23/10/12 and petition is on the 19/10/12, the Respondent is yet to regularize the statement of Defence which was filed on 19/11/12. The rule requires an affidavit and not a statement of Defence to be filed. The objection ought to be filed along with affidavit in reply to petition, there is no leave to do this, at this stage, I found the application is yet to comply with the rule. The Motion is incompetent and struck out. The Respondent shall comply with the rule.”

In essence therefore, the learned trial Judge struck out the Motion, and invariably the objection of the Appellants at that stage for being premature. That is, after observing in the preceding paragraph of the Ruling that, the issues raised in the Motion go to the root of the petition and therefore, not pre-conditions to the petition. In other words, that the issues canvassed in the Motion go to the substance of the petition and therefore only triable at the hearing of the petition. See pages 52 – 53 of the Additional Record of Appeal.
?
Consequent upon that Ruling, which was delivered on the 17/12/2012, the Appellants filed their Affidavit in

Opposition to the petition. It was dated the 30/1/12 but filed on the 30/1/2013. See pages 114 ? 122 of the Main Record of Appeal. The Respondent as Petitioner had by then filed a Motion on Notice pursuant to Order 19 Rules 1 and 2 of the Companies Winding-Up Rules, 2001 praying for:
“AN ORDER granting leave to the Petitioner/Applicant to advertise the Petition for the winding-up of the 1st Respondent – Oyo State Paper Mills Limited, dated the 30th August, 2012, by one (1) insertion each in the Gazette of the Federal Government; the punch Newspaper being a Newspaper circulating throughout Nigeria and the Tribune Newspaper circulating locally in lbadan, Oyo State, where the registered office of the 1st Respondent is situated.?

In support of the Application was an affidavit of six (6) paragraphs deposed to by Oba Adesesan Afolorunsho Oguntayo, the Managing Director of the Petitioner, now Respondent. The said Motion was dated and filed the 12/12/2012. See pages 161 – 164 of the main Record. The reaction of the Appellants on record was to file a Motion on Notice, dated and filed the 11/2/2013, praying for:
1. AN ORDER STRIKING OUT the

Claimant/Respondent’s application for advertisement of the petition for winding up of the 1st Defendant/Applicant which is pending before the Honourable Court as same is unlawful and/or incompetent.
2. AND FOR SUCH further Order(s) as this Honourable Court may deem fit to make in the circumstances.
THE GROUNDS for filing the motion are that:
(a) The Defendants/Applicants are not in any way indebted to the Petitioner/Respondent.
(b) The Petitioner/Respondent has not disclosed any specific amount of money being owed her by the Defendants/Applicants.
(c) The purported indebtedness of the petitioner/Respondent is seriously being disputed by the Defendants/Applicants.
(d) The condition precedent to exercise of jurisdiction by this Honourable Court over the Petitioner/Respondent’s application which is the existence of debt has not been fulfilled and/or not applicable to the instant suit.
(e) This Honourable Court is not a debt recovered and as such lacks jurisdiction to entertain the application for advertisement of the instant petition.”
?
In response to this motion, the Petitioner/Respondent on record, filed a

Counter-Affidavit of 10 paragraphs deposed to by Okwudilichukwu Ajibo, a Legal Practitioner in the form of Okunowo, Okunowo of counsel for the petitioner. see pages 83-90 of the Additional Records. Both parties filed written addresses and in a Ruling delivered on the 16th day of April, 2013, the learned trial Judge dismissed the Respondents/Appellants, motion of 11/2/2013 for being an abuse of Court process, and granted leave to the petitioner to advertise the petition in the manner as prayed in the motion of 12/12/12, It is against that Ruling that the Appellants are aggrieved with, and have therefore filed this appeal.

The Notice of Appeal which is contained in pages 186-189 of the main Record of Appeal consists of only two Grounds of Appeal, which I endeavour to reproduce below:
GROUND ONE
The learned trial Judge erred in law in granting the application of the Respondent dated the 12th day of December, 2012 for leave to advertise the winding up petition filed by the Respondent as petitioner for the winding up of the Appellant Company.
PARTICULARS
(i) The Respondent’s petition at the lower Court was based on the grounds that the 1st

appellant was indebted to it and that it was a contributory of the 1st appellant company.
(ii) The amount of the debt which the respondent alleged that the 1st Appellant was owing was not stated, and in any case, the debt was disputed by the appellants.
(iii) The petition is not sustainable on the ground that the respondent is a contributory of the 1st appellant as on the petition as presented and the state of the record, the respondent did not make out a case that it is entitled to present the petition as a contributory.
GROUND TWO
The learned trial Judge erred in law in granting the application of the respondent dated the 12th day of December, 2012 for leave to advertise the winding up petition filed by the respondent as petitioner for the winding up of the 1st Appellant company when the ground being relied upon in the petition is that it is just and equitable to wind up the 1st appellant.
PARTICULARS
(i) When a petition for the winding up of a company is based on the ground that it is just and equitable to wind up the company; the petitioner ought to show all the following in the petition.
(a) That the contributory, the

petitioner has no other remedy apart from the winding up.
(b) That the petitioner is not acting unreasonably.
(c) That the petition is not opposed by the majority shareholders.
(ii) The respondent as a petition (sic) in the lower Court as can be gathered from the record did not show all these grounds.
(iii) In the premises of (i) and (ii) above, the petition ought to have been struck out.

Now, the parties complied with the Rules of this Court by filing Briefs of Arguments. The Appellant(s) Brief of Arguments is the Amended Appellants’ Brief of Arguments prepared by M. B. Ganiyu; Esq. It was dated the 06/9/13 and filed the 25/5/15. One issue was distilled therein for determination as follows:
“Whether the lower Court was right to have granted leave to the Respondent to advertise the petition for winding-up in the light of the applicable law?”

The Respondent’s Brief of arguments settled by Olufemi Okunowo; Esq was dated and filed the 26/11/13 but deemed filed the 03/11/2014. Therein, a sole issue was nominated for determination as follows:
“Whether the lower Court rightly exercised its judicial power in granting leave to

advertise the petition for winding-up of Oyo State Paper Mills Limited.”

In response, the Appellant filed a Reply Brief. Same was dated the 29/12/2014 and filed the 30/1/15 but deemed filed on the 12/11/2015.

Arguing on the sole issue, learned counsel for the Appellant after summarizing the essence of the petition for winding-up, contended that, the essential reason for granting leave to advertise the petition can be found in the Ruling of the learned trial Judge at pages 182 – 184 of the Records were the learned trial Judge held that:
“The crux of this matter is whether the Court can grant the leave to advertise the petition,
Respondent’s counsel relied on Nwako v. Abagwe (2003) FWLR (Pt. 180) Pg. 1407 at 1410. winding-up Rules, Rule 19(1):
?No petition shall be advertised until the Judge before whom the petition is first mentioned in respect:
2(a) the petition shall be advertised 15 days before hearing.
(3) A petition not advertised within the two weeks prescribed or in the manner prescribed shall be struck out unless for sufficient reason given the Court otherwise orders.”
It is therefore clear that such advert

shall be done any time before hearing the petition and the period is 15 days.
As at today, hearing has not been taken, on the last adjourned date 19/11/2012, the Respondent challenged jurisdiction of the Court and urged that the petition be dismissed. The Motion was filed on 12/12/2013 and it was moved after the Preliminary Objection was dismissed. Therefore, I agree that the application for advert is incompetent; it was properly filed in accordance with the rules
On the Motion of the Defendant – I have ruled on the above that the applicant is timely. The issue of filing a Motion on the issue, I am of the opinion that a counter-Affidavit would have sufficed, the Court have ruled extensively on the earlier motion of the Respondent, again, the Affidavit evidence was on the actual challenge to the petition. This same issue was raised in the application of 3/10/2012 which was said to be incompetent and struck out. It is not a basis for refusing an order to advertise, it is statutory requirement. Suffice to state that the petition was presented by a contributory and is on the same grounds;
(1) Default is made in delivering the statutory report

to the commission or in holding the statutory meetings.
(2) The company is unable to pay its debts.
Respondent has filed a response to the petition and has in this Motion dwelt largely on the debt not being being specific and is disputed and that the Federal High Court its (sic) not a debt recovery Court. The action is not based on debt owed simpliciter.
Petitioner dwelt largely on the competency of the Motion and relied on… He further relied on… that the application is an abuse of Court process. This Motion of 11/2/2013 is a backdoor way of challenging what was struck out and what is more is, these are facts of the petition. It is largely an abuse of Court process and the issue can only be raised again at the hearing of the petition. It is largely an abuse of Court process and the issue can only be raised again at the hearing of the petition. In that regard, I hereby dismiss the Motion of 11/2/2013 for abuse of Court process. I grant the Motion to advertise in its entirety.?

Learned Counsel for the Appellant then submitted that, the Court below, ought not to have granted the leave to advertise the petition in the light of the

applicable law as interpreted by the Supreme Court. That, on the evidence on record, the ground being relied on for the petition is that, it is just and equitable to wind-up the 1st Appellant. Learned counsel then submitted that the law is that, when a petition for winding-up of a company is based on the ground that it is just and equitable to wind-up the company, the Petition ought to disclose the following:
(a) That, as contributory the petitioner has no other remedy apart from the winding-up.
(b) That the petitioner is not acting unreasonably.
{c) That there will be asset for distribution.
(d) That the petition is not opposed by the majority shareholders.

That from the records, the petitioner did not show all the above stated conditions. That, it therefore means that the application for leave to advertise the Petition should be refused and the petition dismissed. Furthermore, the Petitioner having disclosed that it holds 20% of the shares of the 1st Appellant, while the Oyo State Government owns 80% of the shares, it means that the Petition was presented by a minority shareholder. That, the Appellants who are the majority

shareholders are opposed to the Petition, thus the Petition should not be allowed. The case of Ado Ibrahim & Co. Ltd v, Bendel Cement Co. Ltd (2007) 15 NWLR (Pt.1058) was cited in support. Learned counsel for the Appellants then contended that, the facts in the Ado Ibrahim case are on all fours with the facts of this case. We were accordingly urged to hold that, the petitioner presented the petition on the grounds that it is just and equitable to wind-up the 1st Appellant and that the Appellants who are the majority shareholders, having opposed the petition, leave to advertise the petition should not have been granted.

Learned counsel for the Respondent contended that, in its ruling to advertise the Petition, the learned trial Judge dismissed the Appellants motion dated and filed the 11/2/2013 on the ground that it is an abuse of Court process, as the issues canvassed thereon had already been examined by the earlier Ruling of that Court delivered on the 17/12/2012, which was an application by the Appellants challenging the competence of the petition. That, the trial Court was right, in that, having determined the issues, it could no more visit same

both by the Affidavit in opposition to the motion to advertise or by motion. The cases of Shanu v. Afribank (Nig.) Plc (2002) 6 S.C. (Pt.2) P. 135 at 148; Ukaegbu v. Ugoli (1991) 6 NWLR (Pt. 196) P. 127; Ogbgu v. Ndiribe (1992) 6 NWLR (Pt. 25) P. 40; Adone v. Ikebudu (2001) 7 S.C. (Pt. 3) P.22 and Anwoyi v. Shodeke (2006) 6 S.S P.38 and 46 were then cited to submit that, the learned trial Judge having determined on the issue of the competence of the Petition vide its Ruling of 17/12/2012, it was excluded or stopped from again raising the same issues while considering the application to advertise the petition for winding-up. That there is no appeal against the Ruling of 17/12/12, wherein the competence of the petition was determined, therefore it remains binding on the Appellants.

Learned counsel for the Respondent went on to submit that, the petition filed by the Respondent is neither brought as a creditor nor is it in respect of any debt owed by the 1st Appellant to the Respondent. That, the issue was raised by the motion of 02/10/12 and the trial Court ruled vide the motion of 17/12/2012 that the Petition was brought by the Respondent as a

contributory and not as a creditor. He referred to Section 410(1) (d) of the Companies and Allied Matters Act (CAMA) 1990 and Paragraphs 6 and 13 of the petition to further contend that the Respondent as Petitioner did not aver that it is a Creditor to the 1st Appellant. Paragraphs 10,11,12 and 14 of the petition for winding-up were further referred to, and to further submit that, the issues and arguments canvassed by the Appellants on the Respondent initiating the petition as a creditor are therefore misapprehended by the Appellants. That Section 409 (c) of CAMA gives statutory support to Paragraphs 10,11,12,13,14,15,17,18,19,20,23,24 and 25 of the petition for winding-up. Furthermore, that the issue of whether the Respondent as contributory has other remedies apart from the winding-up and whether the Respondent (Petitioner) is not acting unreasonably, are not issues touching on the competence of the petition, but are matters of evidence to be determined at the hearing of the petition. Section 411 (2) of the CAMA was cited in support. It was also contended that, a Petitioner who as contributory brings a petition for winding-up, cannot be expected to allege and

prove that the majority shareholders do not oppose that petition in a circumstance where he is alleging that the conduct of the majority shareholders is oppressive to the minority. The case of Re Middleborough Assembly Rooms Co. (1880) 14 Ch. D. p. 104 was relied upon.

Learned Counsel for the Respondent also relied on Section 410 of the CAMA to submit that, there is nothing that disqualifies a minority shareholder from bringing a petition for winding-up. On the contention of the Appellants that a Petitioner ought to show in the petition for winding up that there are assets available for distribution, learned counsel relied on Section 410(4) to submit that a petition for winding-up may be presented even where there are no available assets for distribution upon winding-up. The cases of Adeyemi-Bero v. LSPDC & Anor (2012) 12 S.C. (Pt.1) P.98 at 106 and F.B.N Plc & 3 Ors v. Maiwada & 1 Or (2012) 5 S.C. (Pt.3) P.1 at 6 were cited to urge us to give effect to Section 410(4) of the CAMA.

On the case of Ado Ibrahim & Co. Ltd v. Bendel Cement Co. Ltd (supra) cited and relied on by the Appellants, learned counsel for the Respondent submitted

that, the petition in that case was grounded only on facts of the existence of a debt and the inability of the Respondent to pay its debt and that though the Appellant had relied on the just and equitable rule, did not aver to facts in the petition to support the requirements of that rule. That, in the instant case, the Respondent averred to those grounds in Paragraphs 6,7, 13, 14, 15, 17, 19, 20,21, 22 and 23 of the petition filed on the 30/8/2012, and further demonstrated her interest as a contributory at Paragraphs 10,11,12 and 13 of the petition. It was therefore submitted that, the Court below, rightly exercised its judicial power to grant the order to advertise the petition, the Respondent having fulfilled the statutory provisions stipulated in Order 19 the Companies Winding-Up Rules, 2001. The case of Plateau State v. A. G; of the Federation (2006) 1 S.C. (Pt.1) P. 1 at 60 and C.P.C. v. I.N.E.C & 41 Ors (2011) 12 S.C (Pt. V) P. 86 was then cited to further contend that, the order of advertisement of the petition having already been executed, there is no more a live issue in this appeal to be adjudicated upon by this Court pursuant to Section 6 of

the Constitution of the Federal Republic of Nigeria, 1999. That, while the Notice of Appeal against the Ruling granting leave to advertise the petition was filed on the 24/4/2013, the order of leave to advertise was effected on the 18/4/2013. We were therefore urged to dismiss the appeal.

Replying on points of law, learned counsel for the Appellants contended that, the argument of the Respondent that the issue formulated for determination by the Appellant is incompetent, is untenable, as it has to be appreciated that by the nature of the grounds of appeal in this appeal, the Appellants have challenged the competence of the petition and therefore the jurisdiction of the Court below to hear the petition. The often cited case of Madukolu v. Nkemdilim (1962) 2 SCNLR P. 341 at 348 was cited in support. Furthermore, that under Nigerian Law, estoppel does not apply to prevent a party who had earlier raised the issue of competence of an action unsuccessfully from raising the same issue at a later stage of the same proceedings. In other words, where a Court has ruled on the issue of jurisdiction one way or the other, would not be barred from entertaining a

challenge to its jurisdiction and even delivering a ruling contrary to an earlier one in the same proceeding. The cases of Akinbola v. Plisson Fisko Nig. Ltd (1991) 1 NWLR (Pt. 167) P. 270 and Abiola & Sons Bottling Co. v. F.C.M.B Ltd (2013) 10 NWLR (Pt. 1363) P. 511 at 528 were cited in support.

On the argument of the Respondent that the grounds of appeal be struck out in so far as they question the competence of the petition, learned counsel for the Appellants contended that they are not raising the issue for the first time in this appeal, and that the parties are agreed that the issue was raised at the trial Court, but the Court failed to consider same. That it is therefore incorrect to argue, as done by the Respondent that, the issue of jurisdiction which is inherent in the Notice of Appeal is being raised for the first time on appeal. That, in any case, the issue being one of competence of the petition, it can be raised for the first time in this Court. The cases of Olowu v. Nigerian Army (2011) 18 NWLR (Pt. 1279) P. 659 at 686 and N.N.P.C. v. Orhiowasele (2013) 13 NWLR (Pt. 1371) P. 211 were then cited in support.
?
It was further submitted

by learned counsel for the Appellant that, under the Nigerian Law, upon hearing an application to advertise a petition in winding-up proceeding, the Court can determine the issue of competence of otherwise of the petition by even raising same suo motu. The Ado Ibrahim case (supra) at pages 555 Paragraphs B and C, G-H, 556 Paragraphs A – B and 557 Paragraphs B – E were cited in support.

On the contention of the Respondent that Respondent who is a contributory and petitions for the winding-up of the Company can not be required to allege and prove that majority of the shareholders do not oppose the petition especially where he contends that the conduct of the majority shareholders is oppressive to him (petitioner), learned counsel contended that, such argument is contrary to the decision of the Supreme Court in the Ado Ibrahim case (supra). That where a minority shareholder alleges in the petition for winding-up that it is just and equitable to wind up the Company, he must satisfy the conditions as laid down by the supreme court in the Ado Ibrahim case (supra). In that guise, learned counsel for the Appellant submitted that, the English cases cited by the

Respondent in support of his argument do not represent the law in Nigeria, in view of the decision of the Supreme Court in the Ado Ibrahim (supra). The cases of Ojora v. Agip (Nig.) Plc (2014) 1 NWLR (Pt.1387) P. 150 at 193 Paragraphs A-G and Ajomale v. Yaduat (1991) 5 NWLR (Pt. 191) P. 257 at 287 Paragraphs C-H were then cited in support. On that note, learned counsel for the appellant urged us to hold that the petition for winding-up is incompetent and to have same struck out.

Now, the issue to be determined in this appeal is, whether the trial Court was right when it granted leave to the Petitioner/Respondent to advertise the petition as required by Order 19 of the Companies Winding-Up Rules, 2001. The said Order 19 stipulates as follows:
“19 – (1) No petition shall be advertised until the Judge hearing the petition or a Judge before whom the petition is first mentioned in open Court so orders.
(2). The order for advertisement of the petition shall be as follows:-
(a) The petition shall be advertised fifteen clear days before the hearing.
(b) The petition shall be advertised once or as many times as the Court may direct, in the

Gazette and in one National Daily Newspaper and one other newspaper circulating in the State where the registered office, or principal or last known principal place of business, as the case may be, of such Company is or was situate, or in such other newspaper as shall be directed by the Court.
(c) ..
(3) A petition not advertised within the time prescribed or in the manner prescribed shall be struck out, unless, for sufficient reason given, the Court otherwise orders.”

In the instant case, the Respondent on record, filed a Motion on Notice, dated and filed on the 12/12/2012 seeking for leave to advertise the petition pursuant to Order 19 Rules (1) and (2) of the Companies Winding-Up Rules, 2001. The Appellants who were Respondents to the petition filed a Counter-Affidavit thereto. See pages 161 – 162 of the main Records and 77 – 82 of the Additional Records. However, the Appellants also filed a Motion on Notice, wherein they prayed the Court to strike out the Motion for Advertisement of the petition. It would appear from the record of appeal that, the Motion to advertise the petition and

Appellants, Motion to strike same out were argued and a single Ruling delivered thereon. A careful consideration of the Appellants? counter-Affidavit filed in opposition to the Motion to advertise would show that, the main reason for opposing the application is as deposed to in Paragraphs 5, 6, 7 and 8 of the said Counter-Affidavit which state:
“5. That the instant petition which was filed on 30th August, 2012 had come up at one time or the other before this Honourable Court for hearing since 12/11/2012.
6.That the Respondents had among other things filed and argued preliminary Objection against the petition in question.
7. That save the otherwise engagement of this Honourable Court on 12/12/2012 when the Ruling was scheduled to be delivered in the instant petition, this Honourable Court would have ruled one way or the other in respect of the Respondents’ aforesaid Preliminary Objection.
8. That by the clear provision(s) of the Companies Winding-Up Rules, Cap. C20, Laws of the Federation, 2004, time within which, the instant application ought to be filed had elapsed.?
?
The import of the above reproduced depositions is that,

the Motion seeking for leave to advertise the petition was not filed within the stipulated time prescribed by the Companies Winding-Up Rules , 2001. The Rules stipulate that;
“the petition shall be advertised fifteen clear days before the hearing.”

Ruling on the application, the learned trial Judge held at page 183 of the Main Record of Appeal as follows:
“It is therefore clear that such advert shall be done any time before hearing of the petition and the period is 15 days.
As at today, hearing has not been taken, on the last adjourned date 19/11/2012, the Respondent challenged jurisdiction of the Court and urged that the petition be dismissed. The Motion was filed on 12/12/2013 and it was moved after the Preliminary Objection was dismissed.
Therefore, I do not agree that the application for advert is incompetent; it was properly filed in accordance with the rules.?
?
In other words, it was the view of the learned trial Judge that, at the time the Motion to advertise the petition was filed, hearing in the petition had not commenced. The learned trial Judge therefore did not consider any other step or proceeding that had taken

place, including the Appellants? Motion of 02/10/2012, which challenged the competence of the petition, as part of the hearing of the petition. Having carefully perused the Grounds of Appeal and the particulars thereof, I find that none of the two Grounds of Appeal filed, question the findings and conclusion of the learned trial Judge that the Motion to advertise the petition was filed within time. In other words, there is no appeal against the findings of the trial Court on the issue. It is trite law that, any finding of the Court for which there is no appeal, is deemed conceded to and therefore established.

A careful consideration of the Grounds of Appeal and arguments of counsel thereon clearly show that, this appeal is centered on the ruling or holding of the trial Court that the petition is incompetent and therefore, the learned trial Judge was in error when he granted leave to the Respondent to advertise it. The challenge to the Motion to advertise, aside the Counter-Affidavit filed against it by the Appellants, was opposed vide the Appellants’ Motion filed on the 11/2/2013. See pages 83 – 90 of the Additional Records of Appeal. The

decision of the learned trial Judge on the said Motion is at pages 183 – 184 of the Main Record of Appeal.
Therein, the learned trial judge held that:
“…..The issue of filing a Motion on the issue I am of the opinion that a Counter-Affidavit would have sufficed, the Court having ruled extensively on the earlier Motion of the Respondent, again, the affidavit evidence was on the actual challenge to the petition. This same issue was raised in the application of 3/10/2012 which was said to be incompetent and struck out.
It is not a basis for refusing an order to advertise, it is Statutory requirement. Suffice to say that the petition was presented by a contributory and is on the same grounds;
(1) Default is made in delivering the statutory report to the commission or in holding the statutory meetings.
(2) The Company is unable to pay its debts.
The Respondent has filed a response to the petition and has in this Motion dwelt largely on the debt not being specific and disputed and that the Federal High Court it’s (sic) not a debt recovery Court. The action is not based on a debt owed simpliciter.
Petitioner dwelt largely on the

competency of the Motion and relied on….. He further relied….. that the application is an abuse of Court process. This Motion of 11/2/2013 is a backdoor way of challenging what was struck out and what is more is these are facts for the petition. It is largely an abuse of Court process and the issue can only be raised again at the hearing of the petition.?

In essence, it was the finding and conclusion of the learned trial Judge that, the issue of competence of the petition had been decided vide Motion filed on the 2/10/2012. Ruling on the Motion was delivered on the 17/12/12. See pages 49 – 53 of the additional Records. It is however contended by the Appellants that, the Court below ought not to have granted the leave to advertise the petition. While conceding that sequel to the Respondent’s application for leave to advertise the petition, the Appellants had filed a Preliminary Objection seeking the dismissal of the petition. That the thrust of the Preliminary Objection was on the ground that the petition was presented on the basis of a bonafide debt which is disputed. That the grounds for objecting to the Motion to advertise the petition was

that, the petition having been found to be presented on the basis that it is just and equitable to wind-up the company (1st Appellant), the conditions for presenting a petition on that ground had not been satisfied by the Respondent as to merit grant of leave to advertise the Petition.

The Respondent argues that, the issue of competence of the petition had been determined by the trial Court vide its ruling of 17/12/2012 and therefore could no more be revisited by the trial Court. That the only remedy available to the Appellants was to appeal that Ruling, but they did not. Furthermore, that the issue of competence of the petition was settled by Ruling of 17/12/2012 and not that of the 16/4/2013, which is now the subject of this appeal. It was therefore contended by learned counsel for the Respondent that, the Appellants having not appealed the Ruling of 17/12/2012, the present appeal against the Ruling of 16/4/2013 is incompetent and should be struck out.

I find it necessary to state at this juncture that, the law as settled is that a party is estopped from litigating on an issue which had been previously litigated and pronounced upon by the Court.

For a party to successfully plead issue estoppel, it must be shown that:
(a) The issue raised is one that has been raised and decided by the Court;
(b) The judicial decision which gave rise to the estoppel or created the estoppel is final; It therefore mean that an interlocutory decision will not give rise to a successful plea of issue estoppel;
(c) The parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which estoppel is raised;
Issue estoppel therefore arises where an issue had earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes again in question in any subsequent proceedings between the same parties. Issue estoppel may arise in the same proceeding, where the issue had been raised and determined in an earlier stage of the proceedings, and is again raised at a later stage of the same proceedings. See Bamgbegbin v. Oriare (2009) 13 NWLR (Pt, 158) P. 370; Makun v. Federal University of Technology, Minna (2011) 18 NWLR (Pt. 1278) P. 190 and Nikbgbatse v, Opuye (2010) 14 NWLR (Pt. 1213) P.50. To determine whether an issue in question

constitutes issue estoppel, a Court would look at the issues that call for determination in the case and the issue that was resolved in the previous decision. A party relying on issue estoppels must therefore show that the issues raised and determined in the previous decision were the same as those in the present suit. See Oshoboja v. Dada (2009) 18 NWLR (Pt. 1172) P. 188 and Ikeni v. Efamo (1996) 5 NWLR (Pt. 445) P. 64.

To determine the issue in this appeal, I find it necessary to consider whether the issues that arose and was determined upon in the motion of 03/10/2012 were the same as in the motion of 11/2/2013. The motions had earlier been reproduced in the course of this Judgment. In arguing the said motion, L.A. Ganiyu, Esq of counsel for Applicants in the motion had reproduced the provisions of Section 408, 409, 415, 422, 462 and 464 of CAMA to contend that, in initiating the Petition, the Respondent had failed to comply with the provisions of CAMA. He then submitted at page 29 of the Additional Records that:
“Suffice it to say that, the petitioner?s petition is vague and frivolous as it did not disclose the type of winding-up proceedings.

Therefore, the petition is incompetent. Your Lordship is humbly referred to Paragraphs 3, 4,11,12 and 13 of the affidavit in support of the Respondents/Applicants, application in this regard.”
The learned counsel went on to submit that:
“Furthermore, the instant unmeritorious petition filed by the petitioner constitutes an abuse of the processes of this Honourable Court as it is meant to expose the Respondents/Appellants to embarrassment without any justification and nothing more. It is respectfully submitted that action instituted to ridicule the adversary is an unmeritorious action which your Lordship is enjoined to discountenance, as same amounts to an abuse of Court process.”

It is clear therefore that, the Applicants/Appellants had by the motion of 03/10/2012, challenged the competence of the petition on the grounds that it did not disclose, the locus standi or capacity in which the Respondent initiated the Petition. It is also based on the grounds that it constitutes an abuse of Court process. Ruling on the application of 3/10/12, the learned trial Judge found at page 53 of the Additional Records of Appeal that:
“This is a winding

up proceedings brought under Section 408 of CAMA i.e. for failure to deliver Board of Directors Statutory report on meeting and inability to pay its debt; it is brought in capacity of a contributory and not a creditor, all that is required are statutorily stated and established, the petition could stand.
In this case, respondent has filed the motion on a preliminary objection asking that the petition failed to meet the requirement of statute of CAMA. I have examined that affidavit attached and find that it is an answer to the petition but not on the allegation contained therein. These facts go to the root of the petition and not pre-condition to petition.”

In respect of the motion dated and filed the 11/2/2013, which seeks an order of the Court striking out the application to advertise the petition, the grounds for the application and the affidavit in support particularly Paragraphs 5, 6 and 7 thereof, suggest that, the basis for seeking the striking out of the motion is that the Respondent initiated the petition as a creditor. This fact is also borne out of the arguments of counsel in support of the application. It is on that score that the learned

trial Judge found and held that the challenge to competency of the petition on the ground of capacity of the Respondent to present the petition for winding up, had been decided vide the motion of 03/10/2012. The learned trial Judge then concluded at page 184 of the Main Records that the capacity or locus standi of the Respondent to present the petition had been settled and can only be raised again at the hearing of the petition.

After a careful consideration of the motions of 3/10/12 and 11//2/13, I am of the view that the learned trial Judge was right when he held that the locus standi of the Respondent to present the petition had been settled vide the Appellants’ motion of 3/10/2012. Same could therefore not be raised again as done by the Appellants? Motion of 3/19/2012. Same could therefore not be raised again as done by the Appellants? Motion of 11/2/2013.
?
The Appellants have argued that, the learned trial Judge erred when he granted leave to the Respondent to advertise the petition. That, the ground upon which the Respondent built his petition is that, it is just and equitable that the Company (1st Respondent) be wound-up; and that

for the petition to be competent certain conditions must be satisfied. That failure to satisfy any or all of those conditions would not only mean that application for leave to advertise the petition would not be granted but that the petition would be dismissed. The Respondent is of the opinion that, the learned trial Judge rightly exercised his discretion to grant leave to the Respondent to advertise the petition, it having fulfilled the statutory provisions contained in Order 19 of the Companies Winding-Up Rules.

Now, having perused the Ruling of the Trial Court delivered on the 16/4/2013 in respect of the Motion to advertise and the Motion of the Appellant opposing that application, it is obvious that the issue of whether or not the Respondent did not satisfy the conditions for initiating the petition on the ground that it is just and equitable to wind up the 1st Respondent was never raised. The learned trial Judge therefore had no opportunity of pronouncing on it. That issue was never canvassed and therefore does not constitute a ratio for the decision. That is why, the learned counsel for the Appellants, relying on the case of Ado Ibrahim & Co.

Ltd v. Bendel Cement Co. Ltd (supra), urged us to set aside the orders made in the ruling of 16/4/13 by which the Respondent was granted leave to advertise the petition; and also to strike out the petition entirely.

In the case of Ado Ibrahim & Co. Ltd v. B.C.C. Ltd (supra), the Appellant therein, had filed a petition for the winding up of the Respondent alleging that the Respondent Company was indebted to it and also that the company was insolvent and unable to pay its debts. It was therefore averred that, in the circumstances it was just and equitable to have the Respondent company wound up. Upon the application of the Appellant/Petitioner for leave to advertise the petition the Respondent company filed a Preliminary Objection in which it prayed, inter alia, dismissal of the petition on the ground that the petition was incompetent because it was presented on the basis of a debt bonafide disputed. The Appellant however argued that, it had presented the petition in a dual capacity of a creditor of the Respondent and as a Contributor to the Respondent.?
In determining the Preliminary objection, the learned trial Judge found that the debt alleged by

the Appellant was in dispute and therefore the appellant could not present a petition for winding up of the company on the ground that the Respondent was unable to pay its debt. It was however determined by the trial Court that, the Appellant was entitled present a petition to wind the Respondent in its capacity as a contributor to the Respondent. The ruling of the trial Court was upheld on appeal. The Court of Appeal however went further to consider the competency of the petition on the basis of the affidavit evidence filed in support of and in opposition to the petition; and found that the Appellant?s petition did not satisfy the requirement for the winding up of the Respondent on the ground that it was just and equitable to do so. The step taken by the Court of Appeal, was endorsed on appeal by the Supreme Court which held, per My Lord, I. T. Muhammad, JSC at page 562 Paragraphs F ? H as follows:
“It should be noted that the learned trial Judge considered only Subsection (1) of Section 410. He completely ignored Subsection (2) of that section and other relevant sections of CAMA. This is the omission that the Court below spotted and went on,

consequently to correct, The Court below went ahead, rightly in my view, to set out the requirements of the law as stipulated by CAMA relating to presentation of a petition for winding-up a company under the just and equitable ground. The Court below properly and rightly too, assumed jurisdiction and powers of the trial Court by evaluating the depositions in the affidavit evidence which was placed before the trial Court and came to the final conclusion by making an order, allowing the appeal before it and striking out the petition before the trial Court on the ground that the petition could not succeed on the just and equitable ground for the winding up of the respondent Company.
The Supreme Court therefore held that, the Court of Appeal was right when it applied the powers granted it by Section 16 of the Court of Appeal Act, 1976 (now Section 15 of the Court of Appeal Act, 2004) to hear the appeal before it by way of a re-hearing. It was therefore found that, the Court of Appeal acted within its powers when it re-heard and determined whether the petition for winding up could succeed on the ground that it was just and equitable that the Respondent

be wound up as claimed by the Appellant, even though the merit of Petitioner’s petition as a contributory had not been raised in the proceedings before the trial Court. My Lord, I.T. Muhammad, JSC clarified the reason for taking such a step when he cited with reliance the case of Emir v, Imieyeh (1999) 4 SCNJ 1 at page 21 per Kalgo, JSC when he held at page 564 Paragraphs F ? G as follows:
I find it difficult to agree with the learned counsel for the Appellant that there was no fair hearing by the Court below when considering the affidavit evidence contained in the Record of appeal before it. The practice whereby an Appeal Court assumes the complete jurisdiction of a trial Court is never an innovation nor in doubt. It is a practice legally backed up by law and judicial precedence. It is resorted to by the Appeal Court in order to avoid unnecessary delays in the final settlement of disputes. I consider it to be a potent and very progressive means of quick dispensation of justice especially where the Courts are always inundated with long list of cases.”?
The Supreme Court therefore considered it that, it did not need any further

address on the matter before it could strike out the suit in the trial Court.
In the instant case, I have already resolved that the issue determined by the Court below, as canvassed in the Appellants’ Objection to the competence of the petition vide Motions of 3/10/2012 and 11/2/2013, related to the capacity in which the Respondent initiated the petition for the winding up of the 1st Appellant. Having thus resolved, it would not mean that the Appellants were estopped from raising the issue of the competence of petition at a later stage of the proceedings on other grounds not raised in the earlier Motions. Indeed, the issues raised in the grounds of appeal, though raised before the trial Court touch on the competence, and thus jurisdiction of the Court below to entertain the petition. Jurisdiction being the life wire of any suit, can be raised at any time, either before the Court hearing the matter on appeal. That being so, even where a Court has decided on its jurisdiction to hear a matter, the same matter of jurisdiction may be raised before the same Court, at a later stage of the proceeding, if fresh facts have emerged which take the matter out of the

jurisdiction of the Court. Thus, My Lord, I. T. Muhammad, JSC in the case of A & S.B. Co. (Nig.) Ltd v. F.C.M.B. Ltd (2013) 10 NWLR (pt, 1363) p. 501 at p. 528 paragraphs D – E held that:-
?The position of the law as adumbrated somewhere, is that where the Court of Appeal has ruled that the lower Court lacks jurisdiction over a matter, this decision would not estop the same Court from “reversing itself” in the same case between the same parties (as in this case) on the issue of jurisdiction should fresh arguments or some other relevant statutes on the matter be brought to its attention as in the case of Akinbobola v. Plisson Fisko Nigeria Limited (1991) 1 NWLR (pt. 167) 270 at pp. 276-277.?
The corollary to the above legal proposition is that, though the issues raised regarding the competence of the petition were not raised in the Court below, same can be raised before this Court, same being one of jurisdiction. In any case, this Court has the power by virtue of Section 15 of the Court of Appeal Act, 2004, to step into the shoes of the trial Court, to determine the issue. This is more so when the matter is one that is fought on

affidavit evidence. In that respect, I am of the view that, the affidavit evidence filed by the parties in favour, and against the petition are sufficient to determine the competence of the petition.

Now, it has been settled and has not been argued otherwise in this appeal, that the Respondent initiated the petition subject of this appeal as a contributory. After reading through the Affidavit in support of the petition which is at pages 3 – 10 of the Main Record of Appeal, I am of the view that, the relevant depositions for the resolution of the issue, are paragraphs 12,13,14,16,17,19,21,22,23,24 and 25 thereof. Those paragraphs read thus:-
?12. The recurrent expenses of the Company in staff salaries and other running costs continue to mount and thereby causing a further depletion of the assets of the Company.
13. These mounting trade losses and huge debts portfolio of the 1st Respondent is already adversely affecting and will continue to adversely affect the fortunes and investment of the Petitioner as a shareholder and contributory in the 1st Respondent Company.
14. The 1st Respondent is currently unable to carry on its business

by reason of its inability to pay its debts as aforesaid.
16. The Petitioner avers that:
(a) The 1st Respondent is both cash flow and balance sheet insolvent;
(b) The 1st Respondent is unable to pay its debts;
(c) The 1st Respondent has failed beyond resuscitation as a business concern, and
(d) The 1st Respondent has insufficient assets to meet its liabilities and there is no possibility that it will be able to carry on business profitably now or in the foreseeable future;
17. The Oyo State Government being the majority shareholder in the company has been running the 1st Respondent in a manner that is oppressive of the rights and interest of the Petitioner as the minority.
19. The Oyo State Government at diverse times, put the 1st Respondent Company under management and control of a Sole Administrator unilaterally appointed by the Oyo State Government thereby acting illegally and also further oppressing the petitioner as a minority.
21.The 1st Respondent company presently has no legally constituted Board of Directors through which it can continue to operate and carry on business.
22. The 1st Respondent company

has failed and/or neglected to file in with Corporate Affairs Commission, the statutory report of its Financial Statement, approved by the Board of Directors, as required by Law;
23. The 1st Respondent company has never called and/or held any Annual General Meeting of members as required by the Companies and Allied Matters Act, 2004.?

Based on the above pleaded facts, the Respondent then prayed in paragraph 25 of the Affidavit that:
“25. It is just and equitable in the circumstances to wind-up the 1st Respondent Company.?

Based on the above stated facts, and more, it is not in doubt that the Respondent predicated her petition for winding-up of the 1st Appellant on the ground that, it is just and equitable that the said 1st Appellant be wound up. The grounds or circumstances under which a company may be wound up are as stated in Section 408 (a) – (e) of CAMA.. That provision stipulates that:
“408. A Company may be wound up by the Court if:
(a) the company has by special resolution resolved that the company be wound-up by the Court;
(b) Default is made in delivering the statutory report to the commission or in

holding the statutory meeting;
(c) The number of members is reduced below two;
(d) The company is unable to pay its debts;
(e) The Court is of opinion that it is just and equitable that the company should be wound up.”

Though it appears from the facts as deposed in the affidavit in support of the petition that the Respondent deposed to facts stating that, (i) the 1st Appellant has defaulted in delivering the statutory report to the commission, and in holding the statutory meeting and (ii) the 1st Appellant is unable to pay its debts, the law would appear to be that, a petition predicated on “the just and equitable clause” is best remedy suitable for contributories. This is so because, in law where a company is wound-up, every contributory to the company would be liable to contribute to the assets of the company in the event of its being wound-up. That being so, were a contributory initiates a petition for the Winding up of a company on the basis that it is just and equitable to wind up the company, it is incumbent on the petition to show that:
(a) A contributory who is the petitioner has no other remedy apart from the winding

up;
(b) The petitioner is not acting unreasonably;
(c) There will be assets for distribution (i.e. that he has something to benefit or interest in the winding up).
(d) The petition is not opposed by the majority shareholders
See also Section 411 (2) of the CAMA, 1990 and Ado Ibrahim & Coy. Ltd v. B.C.C. Ltd. (supra).

In the instant case, the Appellants had filed a Counter-Affidavit in opposition to the petition. The facts as disclosed in the respective affidavits of the parties show that the Appellants hold 80% of the shares of the 1st Appellant and therefore eminently qualify as the majority shareholders of the 1st Appellant. They filed a Counter-Affidavit in which they specifically deposed to the fact that they are opposed to the petition for winding-up of the 1st Appellant. The Petitioner also did not show by her affidavit that it has no remedy other than the Petition for winding-up of the 1st Respondent. There is also nothing to show that, in the event of the 1st Respondent being wound-up there will be surplus assets for distribution to the contributories. Rather, the Respondent would appear to paint a picture that the 1st

Respondent is in such a helpless or precarious position and has failed beyond redemption that it has no sufficient assets to meet its liabilities – See paragraph 16 (c) and (d) of the affidavit in support of the Petition. On the basis of the depositions of the Respondent, I am of the view that, the petition grounded on the fact that it is just and equitable to wind-up the 1st Appellant cannot stand.

On the above premise, I am of the firm view that the learned trial Judge failed to properly evaluate the affidavit evidence before him and the applicable law, when he granted leave to the Respondent to advertise the petition. The petition being incompetent, it was unreasonable and unjust to have same advertised. Though learned counsel for the Respondent argued that the Petition having been advertised, this Court can still set aside the advertisement already made. Accordingly, the finding I make here is that, the order to advertise the petition was made in error. The said advertisement done pursuant to the order is a nullity; and is accordingly set aside. The Petition based on the ground that it is just and equitable to wind up the 1st Respondent falls short of

the requirements of Section 411 (2) of the CAMA, 1990 and therefore incompetent. That being so, the Court below has no jurisdiction to hear and determine same.

Having found as above, it is clear that this appeal is meritorious. It is accordingly allowed. The ruling of the Federal High Court, Ibadan Division delivered on the 16/4/2013 is hereby set aside. Consequently, I order that the Petition filed on the 30th day of August, 2012 for the winding-up of the 1st Appellant is hereby struck out. I award fifty thousand Naira (N50,000.00) as cost against the Respondent in favour of the Appellants.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had the privilege of a preview of the judgment of my learned brother Haruna Simon Tsammani JCA. I agree with the judgment and I have nothing useful to add to it.

NONYEREM OKORONKWO, J.C.A.: Winding-up is a process whereby a company is brought to an end. In other words, it is the process of “killing” a corporate person and appointing an undertaker for its funeral.
Section 408 of Companies And Allied Matters Act provides circumstances under which a company may be wound-up. It states
“408. A company may

be wound-up by the Court if:
(a) The company has by special resolution resolved that the company be wound-up by the Court;
(b) Default is made in delivering the statutory report to the commission or in holding the statutory meeting;
(c) The number of members is reduced below two;
(d) The company is unable to pay its debts;
(e) The Court is of opinion that it is just and equitable that the company should be wound-up.
Four of the five grounds a, b, c, and e relates to the company itself and enure for its benefit or its members. Only (d) relate to creditors whom the company is owing.
Ordinarily, a creditor does not wish or desire the death of its debtor except in the most extreme case. Indeed most creditors pray for the life and success of their debtors so that they may be paid.
It is for these reasons that very stringent conditions are laid down for winding up proceedings and such rules are strictly construed lest a person albeit an artificial one is unlawfully killed.

?In this Proceedings on appeal, the proponents of winding up who were creditors rested their application for such winding up on (e) a ground specified

for contributories or owner’s of various kinds of the company whose interest are specially protected under the “just and equitable” principle.

They (the respondents) ought to have come under (d) and show that the company they want dead is unable to pay its debt.

Having come under the wrong base, it cannot be said that a winding up proceedings have seen initiated and anything done thereunder would be a nullity. This is the centra properentem rule.
This is the import of the clear analysis of this case admirably undertaken by my learned brother H.S. Tsammani JCA.
I agree entirely, with the analysis and the findings he made thereupon. I accede to the orders that were made.

Appearances

M.B. Ganiyu, Esq. with him, Samuel Adeniji, Esq. and B.S. Ajayi, Esq.For Appellant

AND

O. A. Okunowo, Esq.For Respondent