CORAM
JUSTICE ABDULLAHI MUSTAPHA
PARTIES
AFRICAN CONTINENTAL BANK LTD PETITIONER(S)
RESPONDENTS / APPELLANT
AREA(S) OF LAW
SUMMARY OF FACTS
African Continental Bank filed a petition before this court for winding up of the Nigerian Casino Company for inability to pay its judgment debt of N2,446,734.37 (Two million four hundred and forty six thousand, seven hundred and thirty four naira thirty seven kobo). While the petition was pending, the petitioner filed a misfeasance summons praying for a declaration that the six directors in the summons are guilty of misfeasance and breach of trust to the company. Upon service of the summons on the directors the 1st Respondent brought a motion under Order 4 Rule 5(2) and Order 27 Rules 1, 2 and 3, Order 31 Rule 19 of the Federal High Court (Civil Procedure) Rules 1976, Section 9 of the Federal High Court Act 1973 Order 2 Rule 2 of the Supreme Court of England and the inherent juris¬diction of this court for an Order that the misfeasance summons be dismissed or struck out against him. In a considered ruling, the summons was dismissed but while same was before the court, the 2nd Respondent brought a similar motion for the dismissal of the misfeasance summons against him which is the subject of this ruling.
HELD
Motion allowed
ISSUES
None
RATIONES DECIDENDI
MISFEASANCE SUMMONS – WHEN CAN A MISFEASANCE SUMMON BE ISSUED AGAINST A DIRECTOR
“Thus while it is wrong to contend that the conduct of a particular director must have been examined before a misfeasance summons is issued against him it is equally wrong to say that such a summons can be issued against any director without proof of impropriety on the part of the director during the course of winding up of the company” PER MUSTAPHA J
MISFEASANCE ACTION – PURPOSE OF A MISFEASANCE ACTION
“The main purpose of the misfeasance action is indeed to examine into the conduct of the Respondents and compel them to repay or restore the money or property of the company that they have misapplied, retained or committed misfeasance or breach of trust thereof” PER MUSTAPHA J
MISFEASANCE AND BREACH OF TRUST – MEANING OF MISFEASANCE AND BREACH OF TRUST
“Misfeasance and breach of trust is said to include a breach by a promoter director, liquidator or officer of his duty to the company the direct consequence of which has been a misapplication or loss of its assets, for which he could be made responsible in an action” PER MUSTAPHA J
CASES CITED
NONE
STATUTES REFERRED TO
Companies and Allied Matters Act Cap. 59The Federal High Court (Civil Procedure) Rules 1976?