A. O. Obikoya V. The Registrar Of Companies And Official Receiver Of Pool House Group (Nigeria) Ltd. (1975)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

This is an appeal from the ruling of Dosunmu, J., in the Lagos High Court given on September 10, 1973 in respect of an application made to the court by the respondent under Section 226(1) of the Companies Decree 1968 seeking the sanction of the court to enable the applicant continue a court action which was originally instituted by the company before it was wound-up.

Learned counsel for the appellant complained that the learned Judge gave no reason for his ruling, pointing out also that the argument of counsel in the lower court was too short to be of much assistance. He sought permission and was allowed to argue all the seven grounds of appeal together. He submitted that even the trial Judge agreed that it is the jurisdiction of the High Court to allow the original action filed on July 31, 1970 to continue that is being challenged. Learned counsel contended that the application had wrongly been brought under Section 226(1) whereas it should have been brought under Section 218, if it should have been brought at all.

He referred to Humber & Co. v. John Griffitts Cycle Company (1901) 85 LTR.141 in support of his submission that even Section 218 of the Companies Decree, which is an exact copy of the (English) Act of 1948 and earlier legislation on the subject, cannot apply to enable the learned Judge to make the order.

In the alternative, learned counsel submitted that the learned trial Judge had no jurisdiction at all to make the order that the Liquidator could continue the action started on July 31, 1970. This, according to him, is because the original action of 1970 must be deemed to have abated in accordance with Section 8 of the Federal Revenue Court Decree 1973, as amended by Decree No. 38, of 1973 which in effect provides that the High Court can no longer proceed with any matter filed before August 1, 1973, whether it is either part-heard or still pending six months thereafter, that is to say, such actions must be deemed to have abated on January 31, 1974.

It was his contention that the original action was only still pending in the High Court on August 1, 1973, since no pleadings had yet been ordered. An application, which is the subject-matter of the present appeal, was commenced in the High Court on July 30, 1973 two days before the Federal Revenue Court was established and the court order being appealed against was made on September 10, 1973 after the main cause of action had abated and the High Court no longer had jurisdiction over such a pending cause or matter.

Now, this is not a simple matter because of the way the issue of jurisdiction of the trial court has been raised for the first time before us by learned counsel for the appellant. While he agreed that the point was never pleaded in the lower court nor was it made a specific ground of appeal before us, learned counsel submitted that we should accept his following ground as sufficient to enable him to argue that the trial court has no jurisdiction:

“(1) The learned trial Judge erred in law in making the Order complained of when the Court has no jurisdiction to make such order.

PARTICULARS OF ERROR

(c) There is no provision in the said Decree or in any other law which confers jurisdiction on the Court to sanction by the Official Receiver and Liquidator of the Company an action which was instituted by the Company before a winding up Order was made.

It was learned counsel’s submission that the reference to the “said Decree or in any other law” should be regarded as sufficient to show that the provisions of the Federal Revenue Court Decree of 1973 as amended by Decree No. 38 of the same year were also envisaged in his first ground of appeal where these words occur. We did not agree that this is sufficient pleading on the issue of general jurisdiction of the court which learned counsel has just raised. We think that there should have been a specific pleading of the particular legislation intended to be invoked on the appeal, and that it is quite insufficient merely to refer to “any other law”. In any case, we are of the view that all that the learned counsel was concerned with in all his seven grounds of appeal is to assert that the trial Judge had no jurisdiction to sanction the continuance of the original action by the Official Receiver and Liquidator of the respondent company. Until he raised the matter before us, he did not submit any argument nor had he pleaded that the learned trial Judge lacked jurisdiction to deal with the application at all.

Since, however, the learned trial Judge could no longer entertain the original action in respect of which the subsequent application was brought before him, it is clear that he lacked jurisdiction to make the order which he did make apparently per incuriam. If his attention had been directed to the provisions of the Federal Revenue Court Decree and its amendment, he would no doubt have decided not to entertain the application. We are of the opinion that, although learned counsel for the appellant would appear to be unfair in raising the question of jurisdiction in the manner in which he did, our rules of practice permit the issue of jurisdiction to be raised at any stage of the proceedings up to the final determination of an appeal by this court. This is because the existence or absence of jurisdiction in the court of trial goes to the root of the matter so as to sustain or nullify the trial Judge’s decision or order in respect of the relevant subject-matter. While we deprecate the manner of raising the matter on appeal in this case, we are constrained to agree with the submission that the order appealed against cannot stand in view of the provisions of Section 8 of the Federal Revenue Court Decree 1973 as amended by Decree No. 38 of the same year.

Learned counsel for the respondent on this appeal, although understandably taken a little aback by the manner in which the issue of jurisdiction had been raised by learned counsel for the appellant, agreed with our suggestion that the best way out might be to start a fresh action in the matter before the Federal Revenue Court.

The appeal therefore succeeds and it is allowed. The ruling of Dosunmu, J., in Suit No. SC./LD/508/70 given on September 10, 1973, together with the order for costs, is hereby set aside. In view of the opinion which we have expressed about the manner the question of jurisdiction was raised, we make no order in favour of the appellant as to costs.

Other Citation: (1975) LCN/2042(SC)