⦿ CASE SUMMARY OF:
Chief Theodore Ezeobi, S.A.N. v. Daily Times Of Nigeria Plc (2013) – CA
by NSA PaulPipAr
⦿ TAG(S)
– Winding up;
– Retainership;
– Remitting a case back to the trial court;
⦿ PARTIES
APPELLANT
Chief Theodore Ezeobi, S.A.N.
v.
RESPONDENT
Daily Times Of Nigeria Plc
⦿ CITATION
(2013) LPELR-20815(CA);
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Joseph Shagbaor Ikyegh, J.C.A
⦿ APPEARANCES
* FOR THE APPELLANT
– Appellant in Person.
* FOR THE RESPONDENT
– Mr. C. Nwachukwu (with Mr. T. Uzokwe).
AAA
⦿ FACT (as relating to the issues)
The appellant, a Senior Advocate of Nigeria (SAN), was at all material times an external solicitor of the respondent. In the course of the retainership, the respondent who was experiencing chronic financial instability accumulated debts of N18 million from the legal services rendered her by the appellant. Concerted effort was made by the appellant to recover the debt. It yielded no positive result, as the respondent’s liquidity had dried up. Sensing the respondent was cash strapped and could not discharge the admitted indebtedness, the appellant, as a creditor, filed a petition for the winding up of the respondent at the court below. By the calculation of the appellant, the liquidation of the respondent would afford him the opportunity to recover the N18 million admitted indebtedness from the sale or disposal of the assets of the respondents.
The appeal arose from a decision of the Federal High Court of Justice sitting in Lagos (the court below) refusing the motion brought by the appellant to direct the Official Receiver/Provisional Liquidator to protect the assets of the respondent pending the determination of the winding up petition filed by the appellant to liquidate the respondent.
⦿ ISSUE(S)
1. Whether having regard to the facts and circumstances so far of this winding up petition, some of the conclusions properly reached by the trial judge in the Ruling under appeal including that, “It is not in doubt that the petitioner is a creditor,” the learned trial Judge was right in going outside the prayers and reliefs in the motion paper as canvassed before the court by the parties, incorporating strange and irrelevant elements and purporting to determine the same and ending in, suo motu, striking out the entire winding up petition.
2. Whether, it was at all open to the trial Court to dictate to the petitioner/applicant which of various competing remedies the petitioner should pursue in a court of law.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED]
1 & 2. THE COURT OF APPEAL RESOLVED ISSUE 1 & 2 IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
RULING:
i. The holding of the court below (supra) which determined the motion in question had no bearing on the prayers in the motion paper (supra). For the prayers in the motion did not invite the court below to decided the propriety or otherwise of the appellant’s winding up petition. Nor did the motion request for the appointment of the Deputy Chief Registrar of the court below as interim or provisional Receiver/Manager of the respondent. It did not therefore matter that the respondent made submissions on the said issues which there alien to the motion in question. What was germane and called for the determination of the court below were the prayers in the said motion paper, not the submissions of the respondent that were not hinged on or tied to the said prayers, in my view. The subsisting order of Nyako, J., referred to by the court below had nothing to do with the removal of Chief Anthony Idigbe SAN as provisional Receiver/Manager of the respondent. It stated categorically on the issue that – “If it is the order of Ogie J. made on 8th April, 2005, then I must say that I fail to see where in that order, the DTN Plc the 1st plaintiff in this suit was placed under Receivership to Chief Anthony Idigbe SAN. The 1st plaintiff in that suit over which the SAN was made receiver is FCL i.e., the 2nd plaintiff in the action”.
ii. It had to do with the legal representation of the respondent which it settled in favour of Dr. D. V. Izinyon, SAN. So the court below misunderstood the said order and came to the erroneous decision that it related to the removal of Chief Anthony Idigbe, SAN, as Receiver/Manager to the respondent and his replacement therefore by N.D.I.C. All that the appellant requested in the motion paper was for the court below to order the current Receiver/Manager of the respondent to safeguard or protect the assets of the respondent and to, also, recover the monies belonging to the respondent that were in the hands of third parties for the monies to be in the safe custody of the respondent’s Receiver/Manager in order to ensure the solvency of the respondent so that in the event the winding up petitions succeeds funds will be available for the satisfaction of the debt owed the appellant by the respondent.
iii. I agree with the appellant that the court below erred by straying outside the prayers in the motion paper to enter an order striking but the winding up petition when there was no substantive prayer covering the said drastic order, and to also rule that it could not appoint its Deputy Chief Registrar provisional Receiver/Manager of the respondent when such a prayer was not asked for by the appellant or the respondent in the said motion over which the appellant and the respondent joined issues and argued before that court.
Having already allowed the appeal and set aside the ruling of the court below, the appropriate order to make which I hereby make is to remit the matter to the learned Chief Judge of the Federal High Court who shall assign it to another learned Judge of that Court for hearing and determination of the said motion. For the avoidance of doubt, the substantive action for the winding up of the respondent still subsists. Parties to bear their cost.
⦿ REFERENCED
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
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⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
It is trite that parties are bound by the prayer(s) in the motion paper. – Ikyegh, J.C.A. Ezeobi v. Times (2013)
So where a trial court misconceived or misdirected itself on the issue(s) before it as in this case and/or made a wrong assessment of the evidence before it, or where there was misbehaviour of a judge in the course of considering a case, the appropriate order after allowing the appeal is retrial of the matter. – Ikyegh, J.C.A. Ezeobi v. Times (2013)
* SUBSTANTIVE
