ADEGBOYE IBIKUNLE V THE STATE
June 4, 2025ODUTOLA V. PAPERSACK NIG. LTD
June 4, 2025Legalpedia Citation: (2007-01) Legalpedia 75972 (SC)
In the Supreme Court of Nigeria
Abuja
Fri Jan 12, 2007
Suit Number: SC.284/2001
CORAM
ONU JUSTICE, SUPREME COURT
PARTIES
ADO IBRAHIM & COY. LTD
APPELLANTS
BENDEL CEMENT COY. LTD.
RESPONDENTS
AREA(S) OF LAW
COMPANY LAW – WINDING UP PETITION -GROUND ON WHICH PETITION SHOULD BE BROUGHT- POWER OF TO REHEAR A SUIT
SUMMARY OF FACTS
The appellant, a shareholder of the respondent company sought the winding up of the company on the grounds that it was irredeemably insolvent.
HELD
The petition is incompetent.
ISSUES
Was the court below right to have allowed the appeal on ground that the petition was not competent under the “just and equitable” ground of section 408(e) of CAMA 1990.
RATIONES DECIDENDI
REMEDY SUITABLE FOR CONTRIBUTORIES
‘A just and equitable ground for winding up a Company is a remedy most suitable for contributories. Where a contributory brings a petition under this head as was found by the trial court and where the trial court is of the opinion that the Petitioner is entitled to the order of winding up, it must make the order unless it appears to the court that some other remedy is available to the Petitioner and that he is acting unreasonably in seeking a winding up order instead of pursuing that other remedy (S.411 (2) of CAMA). Per Muhammad JSC
WHEN A CONTRIBUTORY CAN BRING AN ACTION FOR WINDING UP ON A JUST AND EQUITABLE GROUND
Other contingents to the making of such order include, inter alia, the following:-
The contributory must allege and prove that there will be assets for distribution.
That the petition is opposed by a majority of contributories. In this case the court will refuse to make that order unless the main objects of the Company have failed or became impracticable or that the substratum of the company was gone, e.g. where the Company is making a loss or is deeply indebted.
an order will be made where it is shown that the conduct of the majority is such as to constitute an oppression to the petitioning minority Per Muhammad JSC
DEFINITION OF A CONTRIBUTORY
‘A contributory has been defined to be every person liable to contribute to the assets of a company in the event of its being wound up and for the purposes of all proceedings for determining and all proceedings prior to the final determination of the persons who are to be deemed contributories.’ Per Muhammad JSC
WHEN THE COURT OF APPEAL CAN ASSUME JURISDICTION OF A TRIAL COURT
‘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 by judicial precedence. It is resorted to by the Appeal Courts in order to avoid unnecessary delays in the final settlement of disputes. ‘ Per Muhammad JSC
CASES CITED
1. Akpan v. Otong (1996) 10 N.W.L.R. (pt. 476) 108
2. Badejo v. Minister of Education (1996) 9-10 SCNJ 51
3. Fatuode v. Onwoamanam (1990) 2 N.W.LR. (Pt. 132) 322
4. IBWA v. Pavex International (2000) 4 SCNJ 200.
5. Okoya v. Santilli (1990) 2 N.W.LR (Pt 132) 322
STATUTES REFERRED TO
2. Court of Appeal Act of 1976 (now contained in the Laws of the Federation of Nigeria, 2004, vol. 4 Cap. C36
3. Court of Appeal Rules, 2001
4. Evidence Act Cap. 112 of LFN 1990 (now contained in LFN, 2004, Cap E14)
