The defunct Oceanic Bank Plc (which the respondent has now acquired, including all its liabilities, rights and obligations) entered into an agreement in which a loan facility of N5,500,000,000.00 (Five Billion, Five Hundred Million Naira) was advanced to the appellant. Pursuant to the acquisition, the respondent commenced a process for recovery of the debt. In July, 2013 Oba Otudeko, the Chairman of Honeywell Group of Companies (parent company of the appellant) made a proposal to the respondent to pay N3,500,000,000.00 (Three Billion, Five Hundred Million Naira) of the debt. The proposal was accepted by the respondent on certain conditions, one of which was that the appellant paid N500,000,000.00 (Five Hundred Million Naira) immediately and pay the balance before the examiners and inspectors from the Central Bank of Nigeria leave the bank on the 22nd of July 2013. This was based on the “in principle agreement” in order to balance the books of the respondent. The appellant defaulted in payment and this led to a series of correspondence between both parties after which the appellant made another proposal to the respondent urging it to accept the sum of N3,500,000,000.00 (Three Billion, Five Hundred Million Naira) as full payment to settle the whole indebtedness.
The Banker’s Committee and the Sub-Committee on Ethics and Professionalism intervened in the matter but were unable to resolve the dispute following which, the appellant filed an action at the Federal High Court. The appellant sought among other reliefs, an order for specific performance of the “in principle agreement”. The trial judge made an order for maintenance of status quo ante bellum.
The respondent filed a petition for the winding-up of the appellant at the Federal High Court, Lagos Division. The petition was followed by ex parte application for interim/interlocutory reliefs in order to preserve the assets and funds of the appellant pending the appointment of a provisional liquidator and the hearing of the petition. The trial court heard the petition for winding-up but declined to grant the ex parte application and directed that the appellant be put on notice. The respondent filed an application for discontinuance of the petition.
On 9/11/2015, the respondent filed a fresh petition for winding-up against the appellant and followed it with another ex parte application seeking an interim order for the preservation of the assets of the appellant. The trial judge granted the application. The appellant filed a motion on notice praying the court to discharge the ex parte order and to dismiss the petition. The court refused to vacate the order but only reviewed it allowing the appellant access to withdraw the sum of N15,000,000.00 (Fifteen Million Naira) per week for the running expenses of the appellant.
The appellant was dissatisfied with the ruling of the trial court and consequently filed a notice of appeal at the Court of Appeal, Lagos Division. The appellant filed its brief of argument while the respondent filed a preliminary objection alongside its brief. One of the appellant’s grounds of appeal is to the effect that the trial court was wrong to have granted an ex parte order against it in violation of the Companies Winding-up Rules which states that such application should be made on notice.
Held: (Unanimously allowing the appeal)