ABDULMALIK EGBUNIKE, ESQ VS MARC & MEI NIGERIA LTD

CORAM

TASLIM O. ELIAS, JUSTICE SUPREME COURT

ABDULLAHI MUSTAPHA

PARTIES

ABDULMALIK EGBUNIKE, ESQEQUITORIAL TRUST BANK PLC? PLAINTIFF(S)

DEFENDANTS

AREA(S) OF LAW

SUMMARY OF FACTS

This Ruling is as a result of two applications filed by the 1st and 2nd Defendants as well as the 3rd, 4th, 5th and 6th Defendants, all seeking to displace the 1st Plaintiff in this suit. The two applications were taken together. The Defendants sought the 1st Plaintiff’s displacement as a receiver of the 1st Defendant by virtue of the 5th Defendant’s appointment as a receiver of the 1st Defendant.

HELD

Application dismissed

ISSUES

Whether the 1st Plaintiff should be displaced as the Receiver of the 1st Defendant company in view of the 5lh Defendant’s appointment of KUNLE OGUNBA Esq. as the Receiver of the same 1st Defendant company

RATIONES DECIDENDI

RECEIVER – FUNCTION OF A RECEIVER

“A person appointed a Receiver of any property of a company shall subject to the rights of prior incumbrancers, take possession of and protect the property, receive the rents and profits and discharge all out-goings in respect thereof and realize the security or the benefit of those on whose behalf he is appointed, but unless appointed manager he shall not have power to carry on any business or undertaking”. PER MUSTAPHA J

FLOATING CHARGE – WHEN CAN A FIXED CHARGE ON A PROPERTY HAVE PRIORITY OVER A FLOATING CHARGE

“A fixed charge on any property shall have priority over a floating charge affecting that property unless the terms on which the floating charge was granted prohibited the company from granting any later charge having priority over the floating charge and the person in whose favour such later charge was granted had actual Notice of that prohibition at the time when the charge was granted to him”. PER MUSTAPHA J

LEGAL MORTGAGE – THE EXISTENCE OF A PRIOR LEGAL MORTGAGE IS NOT A BAR TO THE APPOINTMENT OF A RECEIVER

“The position of the law is that the existence of a prior legal mortgage is not a bar to the appointment of a Receiver by a subsequent incumbrancer unless the prior legal mortgagee is in possession”. PER MUSTAPHA J