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  • N. I. D. B. Ltd v. Ambe Board Mills (Nig.) Ltd
  • 128
  • 2002-11-11
  • ₦ 200
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N. I. D. B. Ltd v. Ambe Board Mills (Nig.) Ltd

NIGERIAN INDUSTRIAL DEVELOPMENT BANK LTD.

V

AMBE BOARD MILLS (NIGERIA) LTD.

COURT OF APPEAL

( IBADAN DIVISION )

DALHATU ADAMU, JCA ( Presided )

FRANCIS FEDODE TABAI, JCA

OLUFUNLOLA OYELOLA ADEKEYE, JCA ( Read the Lead Judgment )

CA/I/M.30/96

TUESDAY, 27TH NOVEMBER, 2001

APPEAL - Brief writing - Bad brief - How treated by the Court of Appeal

COMPANY LAW - Winding-up - Winding-up petition based on inability of company to pay debt - Amount of indebtedness required to sustain same

COURT - Court process - Duly filed court process - Receipt of payment as evidence of

COURT - Duty of to do substantial justice rather than sustaining technical arguments

COURT - Findings of fact by lower court - Whether appellate court can substitute with its own findings

COURT - Judicial discretion - Primary objective of court while exercising same - When appellate court will interfere with exercise of discretion by lower courts

COURT - Res of litigation - Duty of court to preserve same - Rationale therefor - Need for court to exercise discretionary power for same judicially and judiciously

COURT - Stay of proceedings - Court’s discretionary power to grant same -  How exercised

PRACTICE AND PROCEDURE - Application for stay of proceedings Principles governing grant of

PRACTICE AND PROCEDURE - Application for stay of proceedings -

Whether granted as a matter of routine - When will not be granted

PRACTICE AND PROCEDURE - Application for stay of proceedings What applicant must show to sustain application

PRACTICE AND PROCEDURE - Stay of proceedings - Court’s discretionary power to grant same - How exercised

PRACTICE AND PROCEDURE - Stay of proceedings - Need for special circumstances to exist for court to order same

Issues:

1.            Whether the trial Judge was right in making an order staying further proceedings in the winding-up petition pending before the Federal High Court.

2.            Whether there was any legal evidence before the trial court to support the claim that there was an action pending at the Ondo State High Court.

3.            Whether the trial court was right in refusing to strike out identified paragraphs of the respondent’s supporting affidavit which were mere legal arguments and conclusions.

Facts:

This appeal emanated from the interlocutory ruling of the Federal High Court Ibadan, delivered on 23/10/95 against an application presented by the respondent, a limited liability company which lodged the application dated 31/10/94 in the winding-up petition filed by the appellant, a creditor to the respondent. The appellant claimed the sum of N2,046,000.00 as gross indebtedness of the respondent upon which the petition to wind up the respondent was brought due to the respondent’s inability to pay.

The applicant sought an order of court to either dismiss the petition or stay further proceedings in it pending the determination of suit No. AK/ 45 M/94 pending before an Akure High Court.

After hearing the application, the trial Judge stayed proceedings on

23 /10/95 in his considered ruling pending the ascertainment of the actual debt in the suit pending before the Akure High Court.

Dissatisfied, the appellant has now appealed to the Court of Appeal.