➥ CASE SUMMARY OF:
Oboh & Anor v. Nigeria Football League Ltd. & Ors. (SC.841/2016, January 28, 2022)
by Branham Chima.
➥ SUBJECT MATTER
Garnishee proceeding;
Trial court overruling itself;
Functus officio;
Unveiling corporate vail;
➥ CASE FACT/HISTORY
On 9th July, 2013, at the suit of the named Appellants (as Claimants) at the High Court of Lagos State (Coram: O. A. Adefope-Okojie, J) “judgment as per the award of the Tax Master given on 28th September, 2012 in the sum of Two Hundred and Thirty-Three Million, Nine Hundred and Fifteen Thousand, Six Hundred and Forty Four Naira (N233,915,644.00) (was entered) in favour of the Claimants” and against the sole defendant, NIGERIA FOOTBALL LEAGUE LIMITED, at the said trial Court.
The award of the Chief Registrar/Tax Master, affirmed and incorporated into the final decision on the 9th July, 2013 by the trial Court (O. A. Adefope- Okojie, J. (as she then was)] was made on 28th September, 2012. The Appellants, as judgment creditors, in exercise of their rights and powers under Section 287(3) of the Constitution, providing inter alia that the decision of a High Court shall be enforced in any part of the Federation by all authorities and persons and the Court itself, proceeded by way of garnishee proceedings at the trial High Court to enforce the judgment dated 9th July, 2013. They proceeded against the League Management Company Limited and First Bank of Nigeria Plc, respectively the 2nd and 3rd Respondents in this appeal, as Garnishees. On 18th July, 2013, the trial High Court (G. N. Onyeabo, J.) granted “the garnishee order nisi against the garnishees attaching the sum owing in satisfaction of the judgment entered on 9th July, 2013 in favour of the judgment creditors”. G. N. Onyeabo J. further ordered that at the garnishees shall enter appearances within fourteen (14) days and shall file an affidavit to show cause why the order nisi should not be made absolute, attaching as exhibits – copies of the Statement of Account of the Judgment Debtor held by them”. G. N. Onyeabo, J. further ordered “the garnishees or their representatives shall also appear on the return date here fixed for 8th August, 2013 …”
In the meantime O. A. Adefope-Okojie, J (as she then was), whose judgment was being enforced, heard the application for garnishee order absolute. On 21st January, 2014, she rendered her ruling, the subject of this appeal. Adefope-Okojie, J, in the said ruling seemed to have imposed on herself the burden and function of reviewing, renouncing, reneging and negating her decision of 9th July, 2013. In her ruling on the application for garnishee order absolute, Adefope-Okojie, J, had therein inter alia considered the Memorandum of Understanding on which the cause of action of the Claimants/Judgment Creditors (now the Appellants) was predicated. She found at page 447 of the record, among others, that “The Judgment Debtor, Nigeria Football League, I note, is not a party or a signatory to this agreement” and that “in addition, by the terms of this Memorandum, it is the League Management Company Limited that a Licence is given to administer football ‘together with all rights appertaining to the Nigeria Premier League’ “on this, she concluded that she was hesitant, in the circumstances, to “hold the 1st Garnishee bound to the Memorandum of Understanding to which it was not a party”. Further in the same ruling, Adefope- Okojie, J observed that Okorowo, J of the Federal High Court in the suit no. FHC/ABJ/CS/179/2010 had on 20th January, 2012 declared that the incorporation of the Nigeria Football League Limited, the Defendant/Respondent, “illegal and void – and also that (it) cannot administer football in all its ramifications”. It was on these bases that she declared/ruled that “an order absolute, as requested, cannot be made in the circumstances disclosed above”. She accordingly discharged the order nisi made by Onyeabo, J on 18th July, 2013.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether the lower Court was right in affirming the decision of Adefope-Okejie, J refusing to enforce her own judgment which determined the liability of the 1st Respondent to pay contractual debt in favour of the Appellants?
RESOLUTION: IN APPELLANT’S FAVOUR.
A. THE COURT OF APPEAL WAS WRONG IN AFFIRMING THE TRIAL COURT’S RULING REFUSING TO ENFORCE THE GARNISHEE ABSOLUTE WHEN ORDER NISI HAS BEEN MADE
[‘When the trial Court (per Onyeabo, J) made the garnishee order nisi upon the affidavit (Form 25) of Oyetuga Olugbenga Joseph (on behalf of the Judgment Creditors) filed on 16th July, 2013, I should take it, on the presumption of regularity (Section 168(1) of Evidence Act, 2011), that the trial Court (Onyeabo, J.) made the order nisi having been satisfied by the averments that the amounts of the debts due and owing or accruing for the 1st garnishee to the Judgment Debtor are lodged in bank accounts, one of which is with the 2nd Garnishee” and “that the 2nd Garnishee, First Bank Plc of No. 35, Marina Lagos State are bankers to the 1st Garnishee who maintains Accounts No. 2023185845 at 2nd Garnishee’s Central Business District Abuja Branch where the title sponsorship fees to the tune of over N500,000,000 accruing to the Judgment Debtor in respect of the 2012/2013 Nigeria Premier Football League season – was deposited” and further “that the said account is still in credit to the tune of about N160,000,000.00. On 18th July, 2013 Onyeabo, J made Order Nisi against both “garnishees attaching the sum in satisfaction of the judgment entered on 9th July, 2013 in favour of the Judgment Creditor. The 2nd Garnishee, the 3rd Respondent, had been consistently dubious and dodgy on the fact averred, and accepted by Onyeabo, J, that at the time the order nisi was made it had in favour of the 1st Garnishee N500,000,000.00 lodged with it. Adefope-Okojie, J did not address the fact like the lower Court. I do not think any power or jurisdiction enures to the Court before which application for garnishee absolute is pending to constitute itself into an appellate Court to review the money judgment being enforced.’
‘Both Onyeabo, J who made the order nisi and Adefope-Okojie, J who entered the judgment being enforced and who refused the order absolute were all Judges of Lagos State High Court exercising co-ordinate jurisdiction. Adefope-Okojie, J was, of course, functus officio and totally lacked any power or jurisdiction to review the final judgment she delivered on 9th July, 2013 and rendering it unenforceable upon any fresh evidence, albeit extraneous facts, not available to her on or before 9th July, 2013 under the guise of exercising the judicial discretion to grant or not to grant the garnishee order absolutely sought. My firm view of the ruling of Adefope-Okojie, J at pages 443 – 448 of the record is that the learned trial judge had erroneously arrogated to her Court appellate jurisdiction to review the judgment entered on 9th July, 2013. The power or function of the trial Court at this stage is neither to conduct a fresh trial nor appellate hearing to the review the judgment being enforced to see whether it was rightly or wrongly decided and therefore enforceable or not enforceable. Section 287(3) of the Constitution makes it mandatory that the final decision of the High Court subsisting and not set aside by a Court of competent jurisdiction, shall be enforced by all authorities and persons, and by the Court itself or by Court of subordinate jurisdiction. The appellate jurisdiction conferred on the Court of Appeal by Section 241(1) of the Constitution to review final decisions of the High Court is not there to be whimsically usurped by the High Court under the guise of judgment enforcement proceedings.’
‘The lower Court had confused itself on the status of the 1st Respondent, the Judgment Debtor. It erroneously held it out as a garnishee against whom an order nisi was made. The 1st Respondent is the principal judgment debtor, and not a garnishee against whom an order nisi was made. This error has the fundamental effect on its affirming that the decision of Okorowo, J in FHC/ABJ/CS/179/2010 had declared its incorporation as illegal and void. The only issue in the proceedings for garnishee absolute is whether the sum indebted to the judgment debtor found prima facie to be held by the garnishee, which sums in the order nisi had been already attached by Court order, should be finally paid over to the Judgment Creditor. The indebtedness of the judgment debtor to the judgment creditor is no longer an issue like the judgment debtor’s capacity to be sued for owing the adjudged debt.’]
B. AFTER GRANTING THE ORDER NISI, THE TRIAL COURT WAS FUNCTUS OFFICIO IN OVERRULING ITSELF
[‘The law still remains that the trial High Court (Adefope-Okojie, J) having on 9th July, 2013 delivered its final judgment was functus officio and was totally bereft of any competence or authority in law to revisit it and render the said judgment nugatory and unenforceable in disobedience of Sections 241 and 287(3) of the Constitution. The decision of the trial High Court affirmed by the lower Court, now the subject of this appeal runs as counter-force against the authoritatively established judicial precedent on the principle when a judgment or Court becomes functus officio upon its judicial duty or function wholly accomplished and thereby lacking further judicial authority or legal competence to revisit and review same, not being an appellate body over its own final decision. There is no dearth of binding authorities on this. They include ALOR & ANOR v. CHRISTOPHER NGENE & ORS (2007) 17 NWLR (pt. 1062) 163; DINGYADI & ANOR v. INEC (2011) LPELR – 950 (SC); UKACHUKWU v. UBA (2005) 18 NWLR (pt. 956) 1; ANYAEGBUNAM v. AG, ANAMBRA STATE (2001) 6 NWLR (pt. 710) 532; MOHAMMED v. HUSSEINI (1998) 14 NWLR (pt. 584) 108.’
‘The Respondents, particularly the Garnishees in collaboration with the Judgment Debtor, have profusely harped on the alleged non-juristic personality of the 1st Respondent, the Judgment Debtor, to avoid enforcement. The two Courts below have unfortunately fallen into the snare, a fraudulently contrived artifice designed to render the final decision of the trial High Court (Adefope-Okojie, J) nugatory and unenforceable. The very adumbrated judgment of Okorowo, J in FCH/ABJ/CS.179/2010, claimed by the Respondents to have declared the incorporation of the 1st Respondent illegal and void was executory, as it clearly placed a further duty on a third party, the Corporate Affair Commission, to wind up the 1st Respondent. There is no evidence that, at all times material to the decision appealed, the winding up order had been carried out on duly executed.’]
.
.
.
✓ DECISION:
‘The lower Court erred in law in affirming the subsequent decision of the trial High Court, the intent and effect of which were deliberately to render its earlier final judgment and order of 9th July, 2013 nugatory and unenforceable. The summary of my foregoing stance is that the two Courts below were in error in respectively refusing, and affirming the refusal, to grant the garnishee order absolute. Consequently, I allow the appeal. The decision of the lower Court delivered on 24th June, 2016 in appeal no. CA/L/274/2014 is hereby set aside. The ruling and/orders of the trial High Court delivered on 21st January, 2014 in the suit no. M/145/2012 are also hereby set aside. In their place, an order granting the garnishee order absolute against the 2nd and 3rd Respondents, as the 1st and 2nd Garnishees, is hereby entered and that shall be the order of the trial High Court in the suit no. M/145/2012. Appeal allowed. Costs at N3,000,000.00 are hereby awarded in favour of the Appellants and against each Respondent.’
➥ FURTHER DICTA:
⦿ AN AMENDED NOTICE OF APPEAL OBLITERATES THE EARLIER NOTICE
Ordinarily, an amended notice of appeal completely obliterates the original notice of appeal amended. It no longer avails the appellant either to formulate his issues for the determination of the appeal therefrom or to argue his appeal on the original notice amended … I agree with the 3rd Respondent that it is the law that an appellant cannot rely on and argue his appeal on more than one notice of appeal because an issue in an appeal cannot be determined on two separate filed notices of appeal. CHUKWU v. THE STATE (2007) All FWLR 1224 at 1240. It also the law that a withdrawn notice of appeal is taken as abandoned. Upon amendment of the notice of appeal upon leave of Court, the amendment goes to the roots and the amended notice of appeal, superseding the original notice of appeal, has the effect of completely obliterating the original notice of appeal which is taken to have been abandoned. Technically, it no longer avails the appellant to rely on the original notice of appeal, it having been amended and deemed abandoned. — Ejembi Eko, JSC.
⦿ USING BOTH SIMILAR GROUNDS FROM ORIGINAL NOTICE OF APPEAL AND AMENDED NOTICE OF APPEAL
Equity follows the law and does always look at the substance and not the form. The 3rd Respondent on this point of his preliminary objection appears to be blighted by the form, and not the substance. Upon my careful perusal of grounds 1, 2, 3 & 6 of the Amended Notice of Appeal they appear to be substantially the replication of grounds 1, 2 & 3 of the original notice of appeal, grounds 4 in the original notice of appeal and the amended notice of appeal and the amended notice of appeal are identical. Similarly, ground 5 in the original notice of appeal was replicated, in ground 5 of the amended notice of appeal. The two grounds are identical. I do not, therefore, think that the respondents in the appeal have been misled, embarrassed or in any way prejudged by the Appellants merely indicating that their issue 1 has been formulated from original grounds 1, 2 & 3 as well as grounds 1, 2, 3 & 6 in the Amended Notice of Appeal. The Respondents similarly are not misled and prejudiced by the Appellants indicating that issues 2 & 3 are issues the subject of identical grounds 4 & 5 in both the original notice of appeal and the Amended Notice of Appeal respectively. Therefore, using blue pencil rule to discountenance, references, in the Appellants’ issues for determination of the appeal in their brief, to grounds 1, 2, 3, 4 & 5 in the original notice of appeal filed on 9th August, 2016 will, in the peculiar facts of this case, meet the ends of substantial justice. Courts these days strive to doing substantial justice as they now turn away from arcane technicality. — Ejembi Eko, JSC.
⦿ NON-JURISTIC PERSONA JOINTLY INITIATE APPEAL; OBJECT AT TRIAL STAGE; ISSUE OF JURISTIC PERSONA IS ONE OF FACT
The remaining point or ground for the 3rd Respondent’s preliminary objection: that the 2nd Appellant, being a non-juristic persona cannot jointly initiate this appeal with the 1st Appellant. The contention is roundly defeated by Order 2 Rule 8 of the extant Rules of this Court, enjoining inter alia that Notices of Appeal and other processes prepared in pursuance of the appellate jurisdiction of this Court for filing in accordance with the said rules, shall reflect the same title as that which obtained at the trial Court. There is no evidence, from the records, that any objection was raised at the lower Court, to the competence of the 2nd Appellant commencing the suit, the substance of this appeal, severally and/or jointly with the 1st Appellant. The 3rd Respondent, as the 2nd Garnishee, did not also raise this objection at the trial Court. He has the right in law to raise the objection, just as he could also compromise it or waive it. See ARIORI v. ELEMO (1983) LPELR – 552 (SC) … There is no evidence, from the records, that any objection was raised at the lower Court, to the competence of the 2nd Appellant commencing the suit, the substance of this appeal, severally and/or jointly with the 1st Appellant. The 3rd Respondent, as the 2nd Garnishee, did not also raise this objection at the trial Court. He has the right in law to raise the objection, just as he could also compromise it or waive it. See ARIORI v. ELEMO (1983) LPELR – 552 (SC). In LION OF AFRICA INSURANCE CO. LTD v. ESAN (1999) 8 NWLR (pt. 614) 197, the objection that “Mr. & Mrs. Esan” was not a juristic persona was raised timeously at the trial Court, and not at the appellate Court for the first time as a ground of appeal. The issue: whether “Emman I. Oboh & Associate” is, or is not, a juristic persona is one of facts. He who asserts must prove that the fact, as asserted, exists in order to be entitled to judgment on the facts asserted: Sections 131 & 132 Evidence Act, 2011. The fact that “Emman I. Oboh & Associates” is not, allegedly, a juristic persona is not one established by mere hunch or intuition of the objector. It must be established by empirical evidence. This is what distinguishes this case from, and renders irrelevant and inapposite MAERSK LINE v. ADDIDE INVESTMENT LTD. (2002) 1 NWLR (pt. 778) 317; SLB CONSORTIUM LTD v. NNPC (2011) 9 NWLR (pt. 1252) 317 to the preliminary objection of the 3rd Respondent, which objection is hereby overruled in its entirety. — Ejembi Eko, JSC.
⦿ TRIAL COURT HAS POWER TO ENFORCE ITS OWN JUDGEMENT
The judgment subsists and remains binding on the parties until set aside; and it took immediate effect from the date it was pronounced. Section 287(3) of the Constitution enjoins the said trial Court to enforce its own judgment. — Ejembi Eko, JSC.
⦿ APPLICATION OF THE CORPORATE VEIL LIFTING IS NOT EXCLUSIVE TO THE FEDERAL HIGH COURT JURISDICTION
The doctrine of lifting the corporate veil has been utilised by the Courts when it becomes necessary to expose the individual hiding behind the corporate entity for the purpose of doing justice. The application of the doctrine is not exclusive to the jurisdiction of the Federal High Court. See Alade Vs Alic (Nigeria) Limited (2012) All FWLR (Part 563) 1849, Adeyemi Vs Lan & Baker Nigeria Limited (2000) 7 NWLR (Part 663) Oyebanji vs The State (2015) All FWLR (Part 800). In Alade v. Alic (Nig) Ltd (2012) All FWLR (Pt. 563) 1849, the action commenced in the High Court of Oyo State with the claimant claiming about Three Million Naira as damages for fraud committed against him by the 1st defendant – a limited liability company and plaintiff’s business partner, and the 2nd defendant – Managing Director of the 1st Defendant. The defendants opposed the action. The trial judge entered judgment for plaintiff against the defendants jointly and severely by lifting the veil of the 1st defendant. The defendants’ appeal to the Court of Appeal was successful. However, the plaintiff appealed to the Supreme Court and one of the issues for determination was whether the defendants/respondents could be held jointly and severally liable for damages occasioned as a result of a fraudulent breach of partnership agreement between the appellant and 1st respondent. In agreeing with the trial judge that the defendants should be jointly and severally liable for the fraudulent breach of the partnership agreement, the Supreme Court held that the Oyo High Court Judge rightly applied the principle of lifting the veil. His Lordship, Galadima JSC held at page 1862-1863E-B thus: “…One of the occasions when the veil of incorporation will be lifted is when the company is liable for fraud as in the instant case. In FDB Financial SERVICES Ltd v. Adesola (2002) NWLR (pt. 668) 170 at 173, this Court considering the power of Court to lift the veil of incorporation held thus: “The consequence of recognising the separate personality of a company is to draw a veil of incorporation over the company. One is therefore generally not entitled to go behind or lift this veil. However, since a statute will not be allowed to be used as an excuse to justify illegality or fraud, it is a quest to avoid the normal consequence of the statute which may result in grave injustice that the Court as occasion demands have to look behind and pierce the corporate veil.” Also, in Adeyemi v. Lan & Baker (Nig) Ltd (2000) 7 NWLR (Pt. 663) 33, it was held as follows:- “A party should not be allowed to benefit from its own wrong. This is encapsulated in the Latin maxim “Nullis commodium capere potest de injuria sua pria.” It is abundantly clear that the 2nd respondent was responsible for the management of the 1st respondent company and on him fell squarely the responsibility of rendering proper accounts of the partnership business on behalf of the said 1st respondent. It was as a result of this that the trial Court rightly looked beneath the facade and lifted the veil of incorporation to discover the thread that ties the 1st respondent and the 2nd respondent together as parties in conspiracy to commit fraud and committing that fraud. The 2nd respondent is therefore jointly and severally liable with the 1st respondent to make good all sums improperly paid out or accrued due to his failure to exercise the care necessary in the running of the 1st respondent.” (Underlining supplied). In Oyebanji v. State (2015) All FWLR (Pt. 800) 1256, the criminal trial commenced at the Oyo State High Court, where the appellant was charged for stealing a sum of money contrary to and punishable under Section 390(9) of the Criminal Code, Laws of Oyo State 1978. The money alleged to be stolen by the appellant was received by him in his capacity as managing director of Baminco Nigeria Ltd and the money was the property of Associated Commodities and Foodstuffs Nigeria Ltd that was engaged in a venture with Baminco Nigeria Ltd. The money was meant for the importation of certain goods, which Baminco Nigeria Ltd failed to purchase and the money was unaccounted for. The appellant was tried and convicted for stealing the money as the trial Court reasoned that the facts of the case required lifting the veil of Baminco Nigeria Ltd to reveal the appellant as the real fraudster. The appellant’s appeal to the Court of Appeal and the Supreme Court failed. Rhodes-Vivour JSC at pages 1279 1280 of the judgment stated as follows: “My Lords, after lifting the veil of incorporation of Baminco (Nig) Ltd, both Courts below were able to see that the appellant is the alter ego of Baminco (Nig) Ltd. He collected the sum off N1,180,593.75 (one million, one hundred and eighty thousand, five hundred and ninety-three Naira, seventy-five kobo) from Associated Commodities and Foodstuffs (Nig) Ltd to import tyres, tube and granulated sugar on the company’s behalf. The Courts further found that the sums collected by the appellant were not paid into Baminco Nig) Ltd’s account, neither was a letter of credit for the importation of the goods in the name of Baminco (Nig) Ltd. It becomes clear that the appellant never imported the goods or returned the money despite repeated demands. The appellant acted in his own interest and not on behalf of the company. The appellant’s acts amount to fraudulent conversion of N1,180,593.75 (one million, one hundred and eighty thousand, five hundred and ninety-three naira, seventy-five kobo). A clear case of stealing.” In the same judgment, Ogunbiyi JSC supported the application of the principle of lifting the veil of incorporation and said at page 1283 of the report, inter alia, as follows: “….The principle of ‘lifting the veil of incorporation’ is where it becomes expedient to expose the individual hiding behind the corporate entity, for the purpose of doing justice. The case is issued, especially with reference to the evidence of PW2, who described the appellant affirmatively as the ‘all in all’ of the company, gives the reason why the appellant should be exposed. The act against the company is fraudulent and depicts evidence of manipulation and deceit. In the absence of any evidence of a separate bank account in the name of Messrs Baminco (Nig) Ltd, the appellant’s dealings with the Associated Commodities was in his own person and capacity. He cannot now pretend and seek to wriggle out of it…”
➥ PARTIES:
⦿ APPELLANT
Emmanuel Oboh
Emmanuel Oboh & Associates
⦿ RESPONDENT
Nigeria Football League Limited
League Management Company Limited
First Bank of Nigeria Plc
➥ LEAD JUDGEMENT DELIVERED BY:
Ejembi Eko, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
P.O. Jimoh Lasisi SAN.
⦿ FOR THE RESPONDENT
A.O. Mustapha SAN.
Dero Daniels.
Lawal Ijaodola.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ WHAT IS GARNISHEE PROCEEDING?
Akintan, JSC in UNION BANK OF NIGERIA PLC v. BONEY MARCUS INDUSTRIES LTD (2005) 13 NWLR (pt. 943) 654 at 666, are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available in execution. It is a specie of execution of adjudged debt for which ordinary methods of execution are inapplicable. By this process, the Court has power to order a third party to pay direct to the judgment creditor the debt due or accruing from him to the judgment debtor, as much of it as may be sufficient to satisfy the amount of judgment and the costs of the garnishee proceedings. The judgment creditor first makes the application to the Court for garnishee proceedings. The order of Court then comes in two stages. The first is garnishee order nisi which directs the garnishee to pay the sum covered by the application either to the Court or the judgment creditor within a stated time unless the party (the garnishee), against whom the order is made, shows good cause why the payment should be made. If no sufficient good cause is shown the Court then makes the garnishee order absolute directing the third party (the garnishee) to pay over the amount specified to the judgment creditor or to the Court, whichever is more appropriate. See CHOICE INVESTMENTS LTD v. JEROMNIMON (1981) QB 149 at 154 – 155; UNION BANK PLC v. BONEY MARCUS INDUSTRIES LTD (supra). At the stage of garnishee order nisi the amount standing to the credit of the judgment debtor in the hands of the third party (the garnishee) is, or has been, attached, that is garnished. In SOKOTO STATE GOVERNMENT v. KAMDAX NIG. LTD. (2004) 9 NWLR (pt. 878) 345 at 380, it was stated: “Where the judgment creditor has garnished the debt standing to the credit of the judgment debtor in the hands of the garnishee, upon service of the order nisi from the Court, the garnishee becomes a custodian of the whole of the judgment debtor’s funds attached.” See also AZUBUIKE v. DIAMOND BANK PLC (2014) 3 NWLR (pt. 1394) 116 (CA).
⦿ A COMPANY IN WINDING UP IS NOT DEAD YET; A COMPANY IS DEAD UPON DISSOLUTION
In Progress Bank of Nigeria Plc. V.O.K. Contact Point Holdings Limited (CA 3) (2008) 1 NWLR (Pt. 1069) 514, the Respondent obtained judgment against the appellant (a wound-up bank). The Appellant sought to appeal the decision but the Respondent filed an objection to the capacity of the Appellant to file a Notice of Appeal on the ground that, it was dead and that only its liquidator could file such appeal on its behalf. The Court of Appeal held thus:- “l must say straight away that, there is a world of difference between the winding-up of a company and the dissolution of a company. Under the provisions of Section 454 (1) and (2) of the Companies and Allied Matters Act, 1990, a company dies once the Court orders the dissolution of the company. The revocation of the company/bank and order of Court winding – up same does not indicate its death. The appointment of a liquidator is for the purpose of ensuring the smooth burial of the company. See Nzom v. Jinadu (1987) 1 NWLR (Pt. 51) 553; CCB (Nig.) Ltd V. Onwuchekwa (2000) 3 NWLR (Pt. 647) 65. There is nothing before us to show that Progress Bank of Nigeria Plc has been dissolved. It is so clear that the said bank is under a winding-up proceedings. In such a state, the bank is seriously ill, but not dead. That is the support of Section 417 of the Companies and Allied Matters Act, 1990. My Lords, a company/bank is certified dead on its dissolution, but where the bank as in this case is under winding up proceeding it has not died. It is gravely ill, it can sue and maintain an action in Court, but no action or proceeding can be brought against it except with the leave of the Court. In CCB (Nig) Ltd v. Onwuchekwa (2000) 3 NWLR (Pt. 647) page 65 at 75 the Court of Appeal said: “A company under winding up proceedings has not died. It is still alive but perhaps sick.”
⦿ SOME FOREIGN CASES ON LIFTING COMPANY VEIL
In Littlewoods Stores Ltd v. I.B.C. (1969)1 W.L.R. 1241 Lord Denning M.R. said: “The doctrine laid down in Salomon’s case has to be watched very carefully. It has been supposed to cast a veil over the personality of a limited liability company through which the Court cannot see. But that is not true. The Court can and often do draw aside the veil. They can and often do pull the mask. They look to see what really lies behind. The legislature has shown the way in group accounts and the rest. And the Court would follow suit.”
The English case of Jones v. Lipman (1962)1 WLR 832 exemplifies the situations in which the corporate veil will be lifted when a company is used as a mere facade concealing the true facts, which essentially means it is formed to avoid pre-existing legal obligations.
➥ REFERENCED (OTHERS)
