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C.C.B. Plc v. Mbakwe

CO-OPERATIVE & COMMERCE BANK (NIG) PLC

V

A. O. MBAKWE

 (Carrying on Business in the Name and Style of A. O. Mbakwe and Sons Company)

COURT OF APPEAL

( PORT HARCOURT DIVISION )

IGNATIUS CHUKWUDI PATS-ACHOLONU,  J.C.A. (Presided)

MICHAEL EYARUOMA AKPIROROH,  J.C.A. ( Read the Lead Ruling )

ABOYI  JOHN  IKONGBEH,  J.C.A.

CA/PH/266/91

THURSDAY 22ND JUNE, 2000

COMPANY LAW - Winding up -Company wound up or under a winding up process -  Effect on legal personality of the company

COMPANY LAW - Dessolution of company as proof of death of legal personality

Issue:

Whether a company that has been  wound up or under a winding-up proceeding (but not yet dissolved) has legal personality to maintain an action?

Facts:

By a motion dated 7/4/2000, and filed on the same day, the appellant prayed for the following:-

“(1) An order suspending the delivery of the ruling of this Honourable court fixed for delivery for 13rd of April, 2000 or any other date pending the hearing of the Appellants’ reply to the preliminary objection of the Respondents.

  1. An order extending the time within which the Respondent shall file its reply.
  2. An order deeming the Appellant’s written reply to the Respondent’s objection filed in this court on the Respondent’s counsel as properly filed and served.
  3. An order substituting the name of the Appellant herein Co-operative

& Commerce Bank, Plc, now in liquidation with the name of Nigeria Deposit Insurance Corporation, the liquidator.”

The Respondent opposed the said application as being incompetent.  The respondent argued that the appellant, Co-operative and Commerce Bank Nig. Plc ceased to exist after its winding-up by the court, and having been wound up, it can neither sue nor be sued, and as such, it can not bring this application.

Held: ( Allowing the application )

1. On a company wound up or under a winding- up process not dead A company wound up or under a winding-up proceeding is not dead, it is alive but sick. A company dies on its dissolution.  So, a company under a winding-up proceeding still retains its legal personality.  [C.C.B. (Nig.) Ltd. vs. Onwuchekwa (2000) 3

N.W.L.R. (Pt. 647) 65 applied.] [ P. 2354, paras D - E ]

2 Whether appointment of a liquidator for a company results in the death of corporate personality -

The appointment of a liquidator for  a company does not by itself  result in the death of a corporate body or thereby remove its legal personality. Action or proceedings against the woundup Company and for whom a liquidator is appointed is

maintainable with the leave of court. In the instant case, Exhibit B does not show that the company is dead. [C.C.B. (Nig.) Ltd  vs. Onwuchekwa (2000) 3 NWLR (Pt.642) 65 followed] [P. 2354, para C]

Nigerian Case Referred to in the Judgment:

C.C.B. (Nig.) Ltd. vs. Onwuchekwa (2000) 3  N.W.L.R. (Pt. 647)  65

Nigerian statute Referred to in the Judgment:

Court of Appeal Act, Section 16.

Constitution of the Federal  Republic of Nigeria, 1999, Section 6.

Counsel:

Emeka Ngige, Esq. for the Appellant

Chief Dr. Ejike Ume (SAN) for the Respondent

AKPIROROH, J.C.A.  (Delivering the Lead Ruling):   By a motion dated 7/4/

2000, and filed on the same day, the appellants prayed for the following prayers:-

“(1) An order suspending the delivery of the ruling of this Honourable Court fixed for delivery for 13th of April, 2000 or any other date pending the hearing of the Appellants’ reply to the preliminariy

A

B

C

D

E

F

G

H