Air Via Limt V Oriental Air Line Limited (2004)
LAWGLOBAL HUB Lead Judgment Report
U. ONU, JSC
This is an appeal by the Appellant against the judgment of the Court of Appeal sitting at Lagos per Dahiru Musdapher. E.O. Ayoola J. C.A. (as they then were) and M.O. Onalaja. JJCA delivered on 20th April, 1998. wherein the lower court
allowed the appeal of the Respondent herein and struck out the Winding-up Petition filed by the Appellant before the Lagos Division of the Federal High Court.
The Appellant herein (as Petitioner) in the winding-up petition brought under the Companies and Allied Matters Act. Cap.59 of Laws of the Federation of Nigeria 1990 (hereinafter referred to in short as CAMA) had commenced the Winding-Up proceedings against the Respondent in the trial Court by filing the Petition at pages 3- 34 of the Record. The Petition was served on the Respondent and the petitioner (Appellant) brought an application to advertise the said petition, the relevant paragraphs giving rise to the action commenced in the Federal High Court of Lagos averring as follows:
“5. The petitioner states that on or about the 23rd day of November 1990, the Petitioner and respondent entered into a written Wet Lease Agreement (hereinafter called “the agreement”) for international and domestic civil air transportation for term of 2 (two) years commencing on the 12th day of December 1990. The petitioner shall rely on the Agreement in proof of this averment.
Further to the above, the Petitioner states that as at the 30th day of June 1991, when the sum of US $1, 431, 450.00 (One Million Four Hundred and Thirty One Thousand Four Hundred and Fifty United States Dollars) was due and payable by the Respondent to the Petitioner in respect of the agreement, the Respondent had only paid to the Petitioner the sum of US $590.305.00 (Five Hundred and Ninety Thousand Three Hundred and Five Dollars) thereby leaving as outstanding the sum of US $841.545.00 (Eight Hundred and Forty One Thousand Five Hundred and Forty Five Dollars) in its account with the Petitioner.
By mutual agreement of the parties, the sum of $17,600.00 (Seventeen Thousand Six Hundred US Dollars) was adducted from the aforementioned outstanding amount, bringing
PAGE| 3
the total outstanding amount to $823,545.00 (Eight Hundred and Twenty Thousand, Five Hundred and Forty Five US Dollars).
The Petitioner states that as at 12th of July 1991, the sum of $823,545.00 (Eight Hundred and Twenty Three Thousand Five Hundred and Forty Five US Dollars) was outstanding against the Respondent, in favor of the Petitioner.
The Petitioner states that it continued to demand for the outstanding sum due to it after the termination of the Agreement, all to no avail.
The Petitioner states that upon its instructions, its solicitors, Messer, Babalakin & Co. of 24A Campbell Street Lagos, Nigeria, wrote a letter of demand to the Respondent for the outstanding amount due. However the respondent failed, refused and/or neglected to pay the same. The Petitioner shall rely on the letter dated 24th April 1992 written by Messrs Babalakin & Co. to the Respondent at the Adjudication of this action.
The Petitioner further states that by its letter dated 23rd April 1993 signed by a principal officer of the Petitioner and delivered at the Respondent’s head office at 217/219, Apapa Road, Iganmu, Lagos, it made a demand for the above mentioned amount outstanding from the Respondent and the Respondent has neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the Petitioner. The Petitioner shall rely on the said letter at the hearing of this petition.
The Petitioner states that the Respondent is unable to pay its debts.
In the circumstances it is just and equitable that the Respondent should be wound up.”
PAGE| 4
The trial Federal High Court (per Kolo. J.) on 23rd February, 1994 delivered its Ruling – see pages 99 – 107A of the Record as follows:
“Coming this far the only point of importance raised by Mr. Azike in this application is in respect of demand notice contending that the present petition has not complied with the law in that regard. The 21st paragraph of the petition is relevant here in that it states that there was a letter dated 23/4/93 which was signed by a principal officer of the Petitioner and which was delivered at the Respondent’s head office at 217/219 Apapa Road, Iganmu, Lagos, and that this said letter made a demand of the Respondent to pay. This 21st paragraph ended that the “Petitioner shall rely on the said letter at the hearing of this petition.” it is my humble view that above has, on the face of it as now before this Court, substantially complied with the provisions of section 409(a) of CAMA moreso that the said 21st paragraph has not been denied except the general denial in the 6th paragraph of the affidavit in support of this application as already referred to earlier on in this Court to hold otherwise. It is therefore my humble view that judging from the records in its entirety as now before this Court vis-à-vis all that I have said above and of course the relevant law or laws as also dealt with in the above decided cases more particularly that of Folawiyo & Sons Ltd V. Hammond Projects (supra) (relied upon by Mr. Azike himself). I cannot but rule that this present application in its entirety cannot be granted and of necessity fails and I so rule.”
The Respondent (as Appellant) then appealed to the Court of Appeal (hereinafter referred to as the Court below). It amended its Notice of Appeal several times culminating in the one dated 9th February, 1998 and filed on 11th February, 1998. Brief of the Respondent (as Appellant) at the court below is at pages 227-250 of the Record while the Appellant’s (as Respondent) Brief is at pages 270-271 of the Record.
PAGE| 5
The Court below alter hearing the appeal delivered its judgment dated 20th April, 1998 inter alia as follows:
“The debt must be admitted or known or certain. In the instant case where the learned trial Judge merely opined that petition presented contains triable issues, then the petition for Winding-Up must be stayed pending the consideration of the triable issues in a proper forum. The Appellant has put up a plausible defence to the action in that he has a serious counter – claim and because it believes that the Respondent/Petitioner was liable to it on the same contract, it has neglected to pay what was claimed against it. In this kind of claim and counter – claim arising from breach of contract, the claims must first be established in a normal case before a Petition of Winding-Up can be embarked upon. See the Re London and Paris Banking Corp (supra).
In the result, this appeal succeeds. I set aside the Ruling of the lower court which Mohammed Kolo, J. delivered in this matter on the 23/2/1994. In its place. I strike out the petition filed for the Winding-Up of the Appellant’s company with costs assessed at N5. 000 (five thousand Naira) only in favour of the Appellant’s Company.”
Aggrieved by this decision the Respondent/Appellant/Respondent (in the rest of this judgment simply referred to as Appellant) has appealed to the Supreme Court on four grounds. The lone issue proffered for our determination from the four grounds by the Appellant reads:
Whether the Court of Appeal was right to have struck out the petition of the Appellant in the circumstances of the case.
On behalf of the Respondent the following six issues were submitted as arising for determination in this interlocutory judgment of the Court below, to wit:
PAGE| 6
(i) Whether the denial and counter-claim of the Respondent had materially and sufficiently disputed the debt as to justify the striking out of the Petition by the Court of Appeal.
(ii) Whether the Court of Appeal was right in its decision that in an action involving petition for winding up of a company the learned trial judge ought not to have confirmed or limited himself to the issue as to whether the petition has established a cause of action but should have gone further to show and consider whether the petition had satisfied the essential ingredients required to wind up a company under Section 408(d) namely, there was an existing debt which is not substantially disputed and that the company is unable to pay.
(iii) Whether the Record of Appeal is properly before the Court or whether it was filed in patent breach of Order 6 Rule 4 of the Supreme Court Rules 1985 as amended.
(iv) Whether the Brief of Argument of the Appellant is properly before the Court or whether it was filed in clear breach of Order 6 Rule 5(1) (a) of the Supreme Court Rules 1985 as amended.
(v) Whether the appeal is competent having regard to Section 21(3) of the Supreme Court Act Cap 424 1990 Laws of the Federation.
(vi) Whether it is proper for the Honourable Court to allow the Appellant to withdraw its earlier application of 15th May 2000 filed on 23rd May 2000 in respect of which the Respondent had joined issues with the Appellant by filing a Reply Brief.
PAGE| 7
STATEMENT OF FACTS
The Appellant herein commenced the action in the Federal High Court by a Petition dated 3rd June, 1993 and filed on 4th June, 1993 wherein it sought that the Appellant Company be wound up by the court pursuant to Section 408(d) and 409(a) of the Companies and Allied Matters Act. Cap.59. Laws of the Federation of Nigeria (“CAMA”) for its inability to pay its debts. In the Petition, the Appellant stated that pursuant to an aircraft lease transaction between itself and the Respondent, the latter was indebted to it in the sum of’ US$823. 545.00 (eight hundred and twenty three thousand five hundred and forty five US Dollars) being unpaid lease rentals, which the Appellant has refused to pay despite several demands. The Respondent also stated that it made a demand signed by one of its principal officers, for the payment of the said debt, but the Appellant had neglected to pay the same. The Appellant thereafter filed an affidavit verifying the Petition on 23rd June, 1996 (see pages 34- 41 of the Record), which was outside the time limited by the Companies Winding Up Rules. 1983, for the filing of such affidavits. In order to regularise this position, the Respondent brought an application for extension of time for filling the affidavit and for deeming the said affidavit as having been properly filed. By a ruling delivered on 2nd August 1993, the lower court granted the application, extended the time as prayed for and also deemed the affidavit as having been properly filed.
The Appellant also brought an application for the advertisement of the Petition. The Respondent then filed an application, which culminated in the ruling that was appealed to the court below. The said application together with the supporting affidavits and exhibits are to be found at pages 72 – 86 of the Record. The Appellant’s counter-affidavit together with the supporting exhibits are on pages 87-98 of the Record. The Respondent’s application for leave to advertise the petition is still pending at the lower Court.
PAGE| 8
In my consideration of the appeal, I intend to deal with the lone issue contained in the Appellant’s Brief which being succinct and to the point, is sufficient to dispose of the appeal.
At the oral hearing of this appeal on 27th January, 2004, learned counsel for the Appellant, Olawale Akoni Esq.. after adopting the Appellant’s Brief and Reply Brief conceded that in view of Section 233 of the Constitution of the Federal Republic of Nigeria, 1999 read together with Order 10 Rule 1 of the Supreme Court Rules he would withdraw issues 3.1 and 3.2. There being no objection by learned counsel for the Respondent, the two issues were struck out. The other issues not being substantial were equally withdrawn and struck out.
ARGUMENTS ON ISSUE 1
The part of the judgment of the court below appealed against is to be found in the leading judgment of Musdapher, JCA at pages 287-291 and 294 of the Record. It appears that the decision of the Court below was based on its holding that the Respondent had
“not only denied the existence of the debt in his (sic) affidavit but also made a counter – claim. It seems to me that the Appellant has established a prima facie case in which its indebtedness or otherwise must first be established in the suit before an order for winding up can be made.”
The court went on to hold as follows:
“I have carefully read the Ruling of the Court below and the learned trial judge arrived at his decision merely because the petition contains “some triable issues for determination.”
PAGE| 9
In other words, the petition discloses a reasonable cause of action. In my view, the learned trial judge erred in this respect. The petition for winding up of a Company for inability to pay debt or insolvency is not to be treated like a claim for the payment of debt. As mentioned above it is simply winding up of the Company for insolvency. The debt must be admitted or known or certain. In the instant case where the learned trial Judge merely opined that petition presented contains triable issues then the petition for Winding-up must be stayed pending the consideration of the triable issues in a proper forum. The Appellant has put up a plausible defence to the action in that he has a serious counter-claim and because it believes that the Respondent/Petitioner was liable to it on the same contract. It has neglected to pay what was claimed against it. In this kind of claim and counter claim arising from breach of contract, the claims must first be established in a normal case before a petition of Winding-Up can be embarked upon. See the Re London and Paris Banking Corp. (supra).”
The Appellant next submitted that in order to put the salient issues in this appeal in their proper perspective, it is important to ascertain and keep in mind the application, which the Respondent brought before the Federal High Court and which resulted in the ruling that was appealed against to the Court below. The Respondent had there sought the following prayers:
(i) an order restraining the Petitioner in the petition from taking any further proceedings upon the said petition whether by advertising the same or otherwise
(ii) that the petition be struck out: and
(iii) that the Petitioner should pay the cost of the motion and
(iv) such further and other orders.
PAGE| 10
The above prayers, the Appellant contended, should be borne in mind throughout the consideration of these submissions in this appeal, adding that it was not the winding-up petition itself that was being heard by the trial court.
At the trial court, it was the contention of the Respondent that the Petition was an abuse of court process and was brought mala fide to embarrass it and should therefore be struck out. In other words, it is asserted that there was no reasonable cause for bringing the petition since it is what the trial judge considered and made a finding upon. However, the Court below rightly, in my view, considered that this amounted to an error on the part of the trial court. From the judgment of the court below quoted above, all the trial court was required to consider was, whether there was a dispute as to the debt and no more. This analysis of the law, it is contended with the greatest respect to the learned justices of the court below is erroneous. What the Respondent requested from the trial court, was a termination of the Winding-Up proceedings at the preliminary stage or at least to restrain the Appellant from taking any further steps on it on the ground that the petition as presented was an abuse of process, and brought mala fide with a view to embarrass the Respondent. The Appellant therefore submitted with respect that what the court ought to concern itself with at that stage of the proceedings was whether the petition as presented was properly brought. It was up to the Respondent, it is maintained, to establish to the court that the process had qualities in it, which tended to show that it was not brought in good faith but merely to harass and embarrass. The case of Hansa International Construction Limited V. Mobil Producing Nigeria (1994) 9 NWLR (Part 366) 76 was called in aid for the view that the Court below held that the following conditions must be satisfied to have a successful winding-up petition viz:
(i) there must be a debt exceeding N2,000.00
PAGE| 11
(ii) a demand has been made for its repayment:
(iii) the company has neglected to pay for a period of three weeks from the day of demand; and
(iv) it must be a debt, which is not disputed on substantial grounds.
The Appellant further submitted that the learned trial judge was correct in considering whether the petition as presented, disclosed a reasonable cause of action or whether it was frivolous and further proceedings on it ought to be terminated in limine.
The next question posed is –
Was there a real dispute on the debt, which was relied upon by the Appellant? In other words, it is asked whether the debt relied upon by the Appellant as the foundation for the Winding-Up Petition was bona fide or substantially disputed as to render the Petition incompetent? It is conceded, asserted the Appellant, that the position of the law with regard to positions for the winding-up of a company for inability to pay its debts, is generally that such a petition is not to be used, as a machinery for trying a common law action. The machinery for winding-up petitions, it is further contended, is also not to be converted to an engine of debt collection in circumvention of the established legal procedure for instituting an action in an appropriate court for the collection of debts.
Furthermore, it is argued, it is trite that the debt in question must be one, which is seen plainly and objectively or acknowledged as owing. That such debt being a sum of money due by certain and express agreement as money owing to one person by another, is
PAGE| 12
demonstrated in the judgment of the Court below. It is also the law, it is emphasized, that where the debt is bona fide disputed, it will not be a proper ground to wind up a company. The essential facts relied upon by the Appellant as the foundation of the debt, are contained in paragraphs 5 to 12 of the Petition, the resume of which is that there was an Aircraft Lease Agreement between the parties signed on or about 23rd November 1990 pursuant to which two TV-154M aircraft together with technical personnel were leased by the Appellant to the Respondent for a term of 2 years. Under the agreement, it is maintained, lease rentals were required to be paid by the Respondent to the Appellant, calculated in a manner specified in the paragraphs of the Petition. In the course of this lease, it is added, a sum of $823,545.00 was due and outstanding from the Respondent to the Petitioner, based on these calculations.
On its part, the summary of the Respondent’s response to the debt as contained in paragraphs 5 and 6 of the affidavit in support of its application at page 73 of the Record, is that it is not indebted to the Petitioner in any amount whatsoever and that all the statements and averments relating to the indebtedness of the Respondent are untrue, false and malicious.
The crucial issues then are what amounts to a bona fide dispute of a debt and whether the Respondent satisfied the same in this case? In answer, the Appellant maintains that the courts have held that such dispute must be genuine, not a sham but a real one based on substantial grounds. The case of In Re Great Britain Mutual Life Assurance Society (1880) 16 Ch.D 246 at page 253 where Jessel M.R said about winding-up petition in which the Respondent had not presented any evidence to support its alleged dispute of the debt in question, is in point or relevant as follows:
“…and in my opinion it is not sufficient for the Respondents upon a petition of this kind, to say, ‘We dispute the claim’. They must bring forward a prima facie case which satisfies the
PAGE| 13
Court that there is something which ought to be tried, either before the Court itself in any action, or by some other proceeding.”
The two cases of:
(i) Re Kings Cross Industrial Dwellings Company (1870) 11 L.R Eq. 149. and
(ii) Re Imperial Hydropathic Hotel Co. Black Pool Ltd (1882) 49 LT 147 were cited in support of the proposition thereof: adding, that the trial judge considered this issue and held that the debt had not been bona fide disputed especially at page 105 of the Record where he stated as follows:
“The above 10 paragraphs (paragraphs 5 & 6 inclusive), obviously, cannot be taken to have answered the petitioner’s assertions in the earlier quoted paragraphs 5 to 16 of the petition for the following reasons:
Nothing is said of the Lease said to have been signed on 23rd of November 1990 and which was to have taken effect on 12th day of December 1990
The Respondent’s 10 paragraphs above fail to show to the Court what was the position/relationship between the parties vis-à-vis the said Agreement in the period between 12th day of December 1990 and April 1992 when the Respondent is said to have sent the aircraft to the Petitioner in Bulgaria for repair works.”
Unfortunately, however, the Appellant contends, that the learned Justices of the Court below without reversing this finding still went on to hold that the Respondent had disputed the debt in question. It is further submitted that in order for the “dispute” to be a real, bona fide and substantial one, it must go to the particulars and meet the substance of the claim of
PAGE| 14
the petitioner. For instance, it is asked, is the dispute as to the basic lease rental price, or in respect of the quantum of the amount claimed or is it that there was no lease agreement at all between the parties or what exactly? The Respondent, it is pointed out, merely stated that it is not indebted and that everything stated in respect of the debt is malicious untrue and false. This, it is argued, cannot amount to a bona fide dispute in the circumstances. We are therefore urged to hold that the debt which formed the basis of the petition was not disputed bona fide or substantially.
THE COUNTER – CLAIM
The Black’s Law Dictionary defines counter-claim as “A claim presented by a defendant in opposition to or deduction from the claim of the plaintiff…… if established such will defeat or diminish the plaintiff’s claim.”
From the foregoing definitions of counter-claim, I am in agreement with the Respondent that it is a means whereby a debt could substantially and materially be disputed. It is conceded that the Respondent counterclaimed for the debt allegedly said to be owed by it when it stated in its affidavit wherein it counter-claimed for loss and damages suffered as a result of the withdrawal of aircraft by the Appellant of the sum of $100,280 earned on a transaction involving the use of the aircraft in lifting a cargo of persons by the Appellant when the aircraft was being retuned to the Respondent in Nigeria after the repairs of it by the Appellant.
It is argued next that the main ground upon which the court below based its conclusion that there was a dispute regarding the debt was that the Respondent has set up a counter claim against the Appellant. It appears that the court below took the position that once a company sets up a counter claim against the Petitioner in a Winding-Up Petition, the debt which forms the foundation of the Petition would be deemed to have been disputed. This
PAGE| 15
appears to be the only conclusion that can be reached from the judgment of the Court below it is further argued. At the trial court, it is contended, the judge had considered the counter-claim and came to the following conclusions:
“Granted that the Petitioner owes the Respondent the sum of $100,280.00 (an assertion still to be fully substantiated) that in my view is not enough to move this Court to hold that the present petition has no foothold before this Court now.”
In other words, it is argued that the mere fact that there is such an allegation of a possible counter debt, does not remove the fact that there is a certain debt which is owed by the Respondent to tile Appellant which tile Respondent had failed to pay and that the Petition could therefore not be faulted on that ground. The Court below however held a contrary view, as at page 294 of the Record it stated that:
“The Appeal has put up a plausible defence to the action in that it has a serious counter-claim and because it believes that the Respondent/Petitioner was liable to it on the same contract.”
This conclusion, it is submitted, is erroneous in that a look at the facts relating to this counter claim will clearly show that there is nothing serious about it whatsoever. In paragraphs 12-26 of the affidavit in support at pages 74-75 of the Record, the Respondent is said to have asserted that it sent one aircraft to the Appellant for repairs and that while returning it, the Appellant used it to airlift cargo for a person and that the sum of $100,280.00 was earned on the transaction which money ought to be paid over to the Respondent. It is further asserted that as a result of the withdrawal of the aircraft by the Appellant, the Respondent suffered loss and damages. In the first place, the Appellant flatly denied any such allegations in paragraphs 4. 5 and 6 of the Counter-Affidavit and further that regarding the amount allegedly owed, the trial Judge had held inter alia as follows:
PAGE| 16
“1. ……………………………….
………………………………..
The Respondents have not shown to this Court the full identity of the aircraft said to have been sent for repairs. Here I mean data like the registration number or numbers or said aircraft as is in the 6th paragraph of the Petition.”
In respect of the other legs of the cross-claim, Appellant submitted that they relate to alleged damages arising out of the withdrawal of the aircraft by the Petitioner, an action which they assert they were entitled to take due to the failure of the Respondent to fulfill its obligations under the Aircraft Lease Agreement. It is further submitted that the cross-claim of the Respondent was at best speculative and ambitious in all the circumstances of the case. Such a cross-claim put forward by the Respondent, it is added, was not sufficient to halt the Petition of the Appellant.
At this juncture, it is maintained, the mere fact the cross-claim is alluded to is not enough to halt an otherwise proper petition founded on a debt in respect of which there is no real or genuine dispute by the Respondent. The English case of Re Euro Hotel (Belgravia) Ltd (1975) 3 All E.R. 1075 was cited to the Court below but regrettably was not considered by that Court. In that case, it is submitted, the Court, faced with a similar application for injunction to restrain the advertisement of a winding-up petition on the ground that there was a counter-claim, found that it was at best spurious and could not justify the halting of the petition. This, it is submitted, is precisely what the, learned trial Judge did and correctly too. The court below it is then further said, did not carry out such an examination of the basis of the claim but merely concluded that it was “serious.” The learned Justices of the
PAGE| 17
court below, it is argued, were therefore said to be in error. The holding of Meggary, J. in the decision cited above was quoted in support thereof. It is then submitted that the learned Justices of the court below were therefore in error when they held that the Respondent has disputed the debt relied upon by the Appellant as the foundation for the existence of the debt in an affidavit as well as counter- claiming against the debt sought to be recovered which tantamounts to a genuine and bona fide disputation of the debt sued for by the Petitioner/Appellant. For purposes of clarity and for the avoidance of doubt, the Court below at page 290 of the Records held:
“A winding-up order will not be made on a debt which is disputed in good faith by the Company. Applying the above principles to the instant case, the Appellant herein not only denied the existence of the debt but in its affidavit also made a counter-claim. It seems to me that the Appellant has established a prima facie case in which the indebtedness or otherwise must first be established in a suit before an order for winding-up can be made.”
It is for this reason that, I agree with the Respondent submission that there are four probable methods of answering an allegation of indebtedness, to wit:
(i) To admit the debt
(ii) To deny the debt
(iii) To counter-claim against the debt
(iv) To set off against the debt.
In the instant case, the Appellant did not take up the first method, namely to admit the debt. Had the Respondent admitted the debt there would have been no contention on the part of
PAGE| 18
the Appellant. I am therefore of the view that the argument advanced at pages 10 and 11 of the Appellant’s Brief to fault the judgment of the Court below in this regard ignores the incontrovertible and unchallengeable fact that the opposite of admission of a debt is the denial of its existence thereof. The denial of the debt by the Respondent in the instant case was emphatic and therefore, in my view, amounts to disputation of the debt. To exemplify that the court below was right in its decision, the words “denial and counter-claim” need to be examined to discover their legal and literal connotation to show or establish that by no other means could the Respondent substantially or genuinely have disputed the debt other than by denial, counter-claim or set-off.
SC. 13/2000
