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Air Via V. Oriental Airlines (2004) CLR 4(a) (SC)

Judgement delivered on April 23rd 2004

Brief

  • Winding up petition
  • Allegation of indebtedness

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 filing 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 affidavits as having been properly filed.

The Petition was served on the Respondent and the Petitioner (Appellant) brought an application to advertise the said Petition.

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. The 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 in this Court to hold otherwise. It is therefore my humble view that judging from the records in it’s entirety as now before this Court vis-a-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 which allowed the appeal. Appellant was not satisfied and appealed to the Supreme Court.

    Issues

    Whether the court of appeal was right to have struck out the petition of the...

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