DEMATIC NIGERIA LIMITED V INI OKON UDO UTUK AND THE LIQUIDATOR (UTUK MOTORS LIMITED)

Legalpedia Citation: (2022-01) Legalpedia 92827 (SC)

In the Supreme Court of Nigeria

Holden At Abuja

Fri Jan 21, 2022

Suit Number: SC.277/2009

CORAM

MUSA DATTIJO MUHAMMAD

PARTIES

DEMATIC NIGERIA LIMITED

APPELLANTS

INI OKON UDO UTUK

THE LIQUIDATOR (UTUK MOTORS LIMITED)

RESPONDENTS

AREA(S) OF LAW

APPEAL, COMPANY LAW, CONSTITUTIONAL LAW, COURT, INTERPRETATION OF STATUTE, JURISDICTION, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS

The initial Petitioner Okon Udo Utuk as a Director/ Chief Executive officer of Utuks Group of Companies consisting of: (1) Utuks Construction & Marketing & Co. Ltd., (2) Utuks Motors Ltd., (3) Utuks Drainage Ltd., (4) Century Transport Ltd had petitioned for the winding-up of Utuks Motors Ltd, at the Federal High Court. Consequent upon the petition, the trial Court appointed the Deputy Chief Registrar of the Federal High Court (now the present 2nd Respondent) as Provisional Liquidator for the purpose of taking over and managing the property of Utuks Motors Ltd. pending the determination of the main petition for winding up. One of the properties of Utuks Motors Ltd. which the Provisional Liquidator was to take over and manage was the property at No. 149, Ikot Epene Road, Uyo, Akwa Ibom State. The property in question prior to the appointment of the Provisional Liquidator had been mortgaged to the First Bank of Nigeria Plc, as security for loan obtained by Utuks Motors Ltd. Based on the Mortgage Deed, the Bank appointed the firm of Adetona & Co. Receiver/Manager to foreclose the mortgaged property and realize the indebtedness of Utuks Motors Ltd. The Receiver/Manager sold the property to the Appellant (Dematic Nigeria Ltd). The Provisional Liquidator filed a motion pursuant to Sections 424 (1) (a), 425 (1) (a), 413 and 414 of the Companies and Allied Matters Act (herein after referred to as CAMA) at the trial Court seeking an order to void the sale of the property and an order vesting the specific property at No. 149, Ikot Ekpene Road, Uyo in his custody for the purpose of valuation pending the winding up of the company. The trial Court in his ruling held in favour of the present Appellant who is the buyer of the present property. Upon appeal to the Court of Appeal, the court set aside the ruling of the trial court and voided the sale of the property to the Appellants. Dissatisfied with the decision of the Appellate court, the Appellant has appealed to the Supreme Court.

HELD

Appeal Dismissed

ISSUES

Whether Section 422(9) of Companies and Allied Matters Act 1990 now Section 585(9) of CAMA 2020 and Section 417 now Section 580 endows the 1st Respondent with capacity to appeal to the lower Court and whether the lower Court had jurisdiction to entertain the matter

RATIONES DECIDENDI

RIGHT OF APPEAL- WHETHER AN EXERCISE OF THE RIGHT OF APPEAL, CAN BE QUASHED BY A SUBSIDIARY LEGISLATION

“The right to appeal is a statutory right provided for by Section 241 (a) of the 1999 Constitution (as altered).

In the first instance, as a general principle, no legislation can take away the right of appeal. A subsidiary legislation to the Constitution may regulate the exercise of the right of appeal, but the right cannot be overtly quashed.

I agree with both Respondents’ counsel that an appeal is a continuation of the suit from which the appeal emanated. See Dr. Mgo Iweka v. SCOA Ltd (2000) LPELR -1563(SC).

I agree with the opinion of the learned 2nd Respondent’s counsel that the general position of the law is that the right of appeal enures to all parties at trial as of right against a final decision. See Elelu Habeeb v. Attorney General of the Federation (2012) 13 NWLR Pt. 1318 Pg. 423 at 465- 46; First Bank v. TSA Industries Ltd. (2010) LPELR- 1283 (SC) 42; Osuji v. Ekeocha (2009) 16 NWLR Pt. 1166 Pg. 8.” PER H.M. OGUNWUMIJU, J.S.C