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Malu vs. S. G. C. (Nig.) Ltd.

GABRIEL K. MALU

V

S. G. C. (NIG.) LTD

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM, JCA ( Presided )

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

IKECHI FRANCIS OGBUAGU, JCA

 CA/J/83/2001

WEDNESDAY, 2ND APRIL, 2003

ACTION - Action in the name of the company - Need for receiver to seek leave of court before bringing or defending

COMPANY LAW - Receiver - Action in the name of the company - Need for receiver to seek leave of court before bringing or defending

COMPANY LAW - Receiver/appointment of - Whether extinguishes legal personality of a company

COMPANY LAW - Receiver/manager - Appointment of - Purpose and effect of

COMPANY LAW - Receiver/manager - Leave to institute or defend action in the name of the debenture holder thereto - Discretion of court to grant - How exercised

COMPANY LAW - Receiver/manager - Application thereby to commence or defend action in the name of debenture holder - Need for to be by summons

                                            Malu vs. S. G. C. (Nig.) Ltd.                                                        535

LEGAL PERSONALITY - Company - Legal personality of - Whether extinguishes on the appointment of a receiver

PARTIES - Mis-joinder or non-joinder of - Whether affects the merit of a case

Issue:

Was the trial court right in holding that a limited liability company for which a receiver had been appointed could sue and be sued without joining the receiver?

Facts:

Appellant, as plantiff, at the trial court sued the respondent, claiming the sum of N1m as special damages for what he described as total failure of consideration. Respondent filed its statement of defence and counter-claim. Subsequently, appellant discontinued his suit and same was accordingly struck out and he thereafter filed a defence to the counter-claim, wherein, a notice of preliminary objection was filed. The ground for the objection, is that the respondent who is under receivership, had lost its legal personality and therefore, had no locus standi to sue or be sued except through the receiver, with the leave of court. In a considered ruling the trial court dismissed the objection. Dissatisfied, appellant appealed against the ruling.