SUBJECT MATTER – INTERLOCUTORY APPLICATION

SUMMARY OF FACT:

The Appellant/Applicant filed an application at the Supreme Court seeking to substitute the 2^ndAppellant who was deceased. The Appellant/Applicant also sought to substitute the 1^stRespondent-Bank of Credit & Commerce International (which subsequently became known as the African International Bank Limited) with Nigeria Deposit Insurance Corporation on the ground that the license of 1^st Respondent has been revoked by the Central Bank of Nigeria and that by the provisions of Section 40 of the Nigeria Deposit Insurance Corporation Act 2006 and Section 425 of the Companies and Allied Matters Act, Cap. C.20 LFN, 2004, the Nigeria Deposit Insurance Corporation shall be deemed to have been appointed the provisional liquidator of the 1st Respondent with power to defend any legal proceeding on behalf of the 1st Respondent. The substitution of the 2^nd Appellant was not opposed but however the 1^stRespondent filed a counter-affidavit to oppose the substitution of the 1^st Respondent with Nigeria Deposit Insurance Corporation. The Supreme Court held that the revocation of license of the 1st Respondent by the Central Bank on 16th January, 1998, did not necessarily remove the “life”, so to say, of the 1st Respondent thereby making it incapable of suing or being sued or barring   it from becoming an appellant or a respondent in the appeal process.

HELD:

The application for substitution was partially granted.

ISSUE FOR DETERMINATION

Now the central issue for determination in this application, going by the facts contained in the affidavit evidence is substitution: (a) for Alhaji Sikiru Amolegbe to substitute the 2nd appellant, Alhaji Yesufu Alabi Amolegbe and (b) for Nigeria Deposit Insurance Corporation to substitute Bank of Credit and Commerce International, 1st respondent on record.

RATIOS:

ADMITTED FACT–WHETHER AN AVERMENT IN AN AFFIDAVIT WHICH HAS NOT BEEN CATEGORICALLY DENIED WILL BE DEEMED TO BE ADMITTED BY THE OPPONENT

“It is trite as well that any averment in an affidavit which has not been categorically denied or controverted is deemed to be admitted by the opponent”. PER MUHAMMAD, J.S.C.

BURDEN OF PROOF– WHETHER THE LAW ALWAYS PLACE THE BURDEN OF PROOF IN CIVIL MATTERS ON THE PLAINTIFF/CLAIMANT /PETITIONER/APPLICANT, TO SATISFY THE COURT BY LEADING CONCRETE EVIDENCE WITH A VIEW TO ESTABLISHING HIS CLAIM

“It is pertinent for me, my lords, to reiterate the position of the law that in our adversarial system of litigation, the law, always places the burden of proof in civil matters on the plaintiff/claimant/petitioner/applicant, as the case may be, to satisfy the court by leading concrete, cogent and valid evidence with a view to establishing his claim. The Evidence Act is very clear on this and provides as follows: “135 (1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that these facts exist. 136 the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”  PER MUHAMMAD, J.S.C

SECTION 417- INTERPRETATION OF SECTION 417 OF THE COMPANIES AND ALLIED MATTERS ACT CAP.59

“S. 417 of the Companies and Allied Matters Act “Cap. 59 desirable. S. 417 ‘If a winding-up order is made or a provisional liquidator is appointed no action or proceeding shall be proceeded with or commenced against the company except by leave of the court given on such terms as the court may impose.’ My understanding of this section is that the fact of winding-up of a Company or the appointment of a liquidator does not by itself result in the death of a corporate body thereby removing its legal personality.” PER MUHAMMAD, J.S.C.

WINDING UP–DISTINCTION BETWEEN LIQUIDATION OF A COMPANY AND DISSOLUTION OF A COMPANY

“Now, winding up of a company involves the liquidation of the company/corporation so that assets are distributed to those entitled to receive them. Campell Black, says, liquidation is quite distinguishable from dissolution which is the end of the legal existence of a corporation. Liquidation may precede or follow dissolution (p.839 of Black’s Law Dictionary 5th ed.) thus, mere revocation of banking license of a bank, without more, as claimed by the applicant cannot bring to an end the juristic life of a bank or corporation. Likewise where a bank or corporation ceases to operate or closes its business that does not determine the   legal   existence of such   a   bank or corporation.” PER MUHAMMAD, J.S.C.

 WINDING UP–MODES OF WINDING UP A COMPANY

“In general, there are (3) three known modes of winding up a company viz: (a) by the court; (b) voluntarily; or (c) subject to the supervision of the court.” PER MUHAMMAD, J.S.C.