Company Law (90)
HELD:
"...although the 2nd Appellant can be removed even if appointed as Director for life under Section 255 of the Companies and Allied Matters Act (CAMA), his purported removal did not comply with the provisions of Sections 262(2) and (3) and 266 of the Act and so invalid in law. See Longe v. FBN PLC (2010) 6 NWLR (1189) 1 cited in the lead judgment Omenka v. Morison Ind. Plc. (2000) 13 NWLR (638) 147. In the premises, he is entitled the reliefs sought in his action and I join the lead judgement in granting them as set out therein." HAKAIR LIMITED & ANOR v. STERLING BANK PLC(2019) LPELR-47638(CA) Per GARBA, J.C.A. (Pp. 59-60, Paras. E-A)
FACTS:
HELD:
"In resolving issue 3 of this appeal, regard would be had to the procedure employed by the Respondent to achieve the said removal; this is with a view to determine the validity of the removal of the 2nd Appellant as a Non-Executive Director of the Respondent at the 50th Annual General Meeting of 15/5/12. Whilst relying on Section 262 of CAMA, Articles 92, 93 & 94 of the Respondent's MEMART as well as the Supreme Court's decision in LONGE v FBN (Supra), the Appellants submitted that the removal of the 2nd Appellant was not validly carried out hence, is null and void. This was however contended by the Respondent, who reiterated that in line with the provisions of the Articles of Association of the Respondent, the removal of the 2nd Appellant as one of the Directors of the Respondent was validly carried out, the Respondent also maintained that the Board Policy among other regulations, alongside the Articles of Association, is applicable in the instance. Succinctly put, a director is a person duly appointed by the company to direct and manage the affairs of the company, he is one in whose direction and instructions the Directors are accustomed to act.
"The Black's Law Dictionary, 9th Edition defines partnership as a voluntary association of two or more persons who jointly own and carry on a business for profit. Foreign statute II a partnership is presumed to exist if the persons agree to share proportionally the business's profits or losses. The essential element common to all partnership is the pooling together of resources capital, labour and skill for the common benefit of the partners. Now the respondent herein was the plaintiff at the trial Court. By the provision of Sections 131 and 132 of the Evidence Act 2011, the burden of proving that the Kinsey Academy and the Kinsey College of Education were jointly owned by herself and the 1st Appellant as partners squarely rested on her.
"Two of the defects, which the lower Court found to be fundamental were the discrepancies in the name of the 3rd appellant and the institution of the suit in his personal capacity without leave of Court. The 3rd appellant's name as it appears on the originating summons is MR. SIMEON FADEYIBI while the name of the Receiver/Manager as contained in the Deed of Appointment of Receiver/Manager annexed to the summons is MR. SIMEON OLOLADE FADEYIBI. Could this be a mere misnomer, as held by the trial Court and as contended by the appellants? I think not. This Court stressed the importance of the order in which names are written in a professional capacity, in the case of: Esenowo Vs Ukpong (1999) 6 NWLR (Pt.608) 611 AT 617 E - G. In that case, the appellant, a medical doctor, was the Medical Director in charge of Memorial Specialist Clinic, Uyo. One Mr. Itrechio, a staff of the 2nd respondent, Mobil Producing Nigeria, submitted a bill issued by the appellant for reimbursement. He stated the name of the appellant as Dr. E.J. Esenowo. The 1st respondent, also a medical doctor, was an employee of the 2nd respondent. He was alleged to have falsely and maliciously written and published a libelous memo to one Moses I. Itam, whose duties included reimbursement of medical fees to the 2nd respondent's employees, stating that "Dr. E.J. Esonowo" is not registered with the Nigerian Medical Council and therefore the bill could not be reimbursed. At the trial Court, the appellant's claim for libel succeeded. The judgment was reversed on appeal to the Court of Appeal.
A company is an artificial person. Decisions for, and actions by it are taken by natural persons such as these people. Officers of a company involved in transaction involving the company and some other party are competent and compellable witnesses in a court of law if and when the transaction becomes subjection of litigation. This is also the case where an officer is employed by the company after the transaction was concluded, provided such an officer is fully briefed and documents relevant to the transaction are made available to him by his employers. Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (2006) 6 NWLR (Pt. 976) p.316. Interdrill Nig. Ltd .v. UBA[2017] 3-4 M.J.S.C
Under the Companies Wind Up Rules, 1983, a debt is proved against a wound-up Company by delivering or sending through post to the liquidator, an affidavit verifying the debt, which must contain or refer to the statement of account showing the particulars of the debt and whether the creditor is or not a secured creditor. The liquidator has the power to examine and admit or reject every proof lodged with it. It is only when a creditor is dissatisfied with the decision by the liquidator that he can apply to the court to reverse or vary the decision.- Akahall & Sons Ltd .v. N.D.I.C[2017] 1 M.J.S.C (Pt. III)[P. 15] Paras. F-G
By virtue of the provisions of Section 32(2) and (8) (b) and (c) of the Bankruptcy Act, A person having notice of any act of bankruptcy against the debtor shall not prove in bankruptcy for any debt or liability contracted by the debtor subsequently to the date of his so having the notice.
(8) For the purposes of this Act, “liability” include:-
By Section 493 of the Companies and Allied Matters Act, in the winding up of an insolvent company registered in Nigeria, the same rules shall prevail and be observed with regard to the respective rights of secured and unsecured creditors and to debts provable and to the valuation of annuities and future and contingent liabilities as are in force for the time being under the law of bankruptcy in Nigeria with respect to the estates of persons adjudged bankrupt, and all persons who in any such case would be entitled to prove for and receive dividends out of the assets of the company may come in under the winding up and make such claims against the company as they respectively are entitled to by virtue of this section.Akahall & Sons Ltd .v. N.D.I.C[2017] 1 M.J.S.C (Pt. III)[P. 13] Paras. D-G
"The grouse of the appellant in the other issue is that the Court below relied on Rule 4 of the Companies Winding Up Rules alone to void the ex - parte orders granted by the trial Court without considering other relevant laws and decisions. If the appellant understands the resolution of issue 2(B) just determined, there would be no need to go into this issue. This is what the appellant says in paragraphs 4.29, 4.30 and 4.31, at page 18 of his brief of argument.
"On the next issue for consideration which relates to the trial Court's refusal to discharge the ex-parte orders for various reasons as it did not accept the respondent's submission that the orders were inappropriately made on a matter for winding up which affected a third party thereby creating a miscarriage of justice. The Court below went against that trial Court's decision and reversed the situation setting aside the injunctive interim orders.