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SILHOUETTE-TRAVELS & TOURS LIMITED v. LEADERS & COMPANY LIMITED PUBLISHERS OF THIS DAY NEWSPAPER

(2017) LPELR-42982(CA)

In The Court of Appeal of Nigeria

On Thursday, the 14th day of September, 2017

CA/L/142/2012


Before Their Lordships

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria


Between

SILHOUETTE-TRAVELS & TOURS LIMITED - Appellant(s)

AND

LEADERS & COMPANY LIMITED
PUBLISHERS OF THIS DAY NEWSPAPER - Respondent(s)


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This is an Appeal against the Ruling of the Federal High Court sitting in Lagos in suit No. FHC/L/CP/652/2011 filed by the Appellant as Petitioner on the 25-5-2011 in which the Petitioner instituted a winding-up proceedings against the Respondent as Respondent. The Petitioner in the Court below had prayed for the grant of the following reliefs:
(a) That the Respondent be wound up by the Court under the provisions of the Companies and Allied Matters Act Cap C20, LFN 2004.
(b) That the Official Receiver or such other person(s) as the Court may deem fit be appointed as Liquidators to immediately liquidate the Respondent pursuant to Section 422 of the Companies and Allied Matters Act, Cap C20 Laws of the Federation of Nigeria, 2004.

In reacting to this suit, the Respondent filed a motion on notice dated 30-6-2011, praying the Court for the following Orders.
(1) AN ORDER striking out or dismissing the petition dated 25th day of May 2011 for being incompetent, an abuse of Court process and cannot be determined within the jurisdiction of this Honourable Court.
(2) AN ORDER of Injunction restraining the Petitioner from taking further proceedings upon the winding up petition whether by advertising or otherwise AND/OR an ORDER striking out any such application brought in respect of this Petition.

The Appellant in reply to the Respondent's motion filed a counter affidavit and written address accompanied with exhibits. The Respondent also filed a further and better affidavit in support of the motion on notice dated the 30-6-2011. The Appellant filed a motion on notice dated 6-6-2011 supported by an affidavit to advertise its petition. The Respondent filed an affidavit in opposition to the petition accompanied by exhibits.
 
On the 14-11-2011, the learned Judge of the Court below in a well-considered ruling delivered refused to order the advertisement of the Petition for winding up on the ground that there was nothing in the petition to indicate that the Respondent is not a going concern. The action was subsequently struck out.

It is against the Ruling of the Court below that the Appellant has brought this Appeal vide their Notice of Appeal filed on the 22-12-2011. 

However, the Respondent raised a preliminary objection on the following grounds:

GROUND ONE:
Whether Issue two as stated and argued by the Appellant in its Appellant's Brief is incompetent having not arisen from the decision of the lower Court and same ought to be struck out in the circumstance.


GROUND TWO:
Whether this Appeal is an abuse of the process of this Court, as such ought to be dismissed by this Honourable Court.

ISSUES:
The Court determined the appeal based on the preliminary objection raised by the Respondent.

DECISION/HELD:
On the whole, the Court of Appeal dismissed the appeal being an abuse of Court process.


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