1. I have considered the Notice of Motion application dated 21.11.23 together with the affidavit in support sworn on even date and the supplementary affidavit sworn on 13 December 2023 and the replying affidavit sworn in opposition to the application dated 7.12.23 and the grounds of opposition, submissions of counsel, and the relevant law.
2. The Petitioner is seeking an injunctive relief restraining the respondent from filing further suits, complaints, and proceedings, criminal and or civil, in nature, and seeks the appointment of an interim liquidator.
3. The Petitioner submitted that the companies in question have only two shareholders, the applicant and the respondent. Further, that the substratum of the company seized to exist several years ago. At present, the company has no assets, and only exists on paper.
4. Counsel contended that the Respondent has been attacking an arbitral award and judgment of this court, affirming the arbitral award, and which had been adopted by as an order of the court. He pointed out that the court of appeal agreed with the applicant, that the respondent herein had not displayed any resolution thus far in the ongoing proceedings.
5. Counsel submitted that there are over 20 applications subsisting in relation to the parties, and that there is a deadlock between the parties. He pointed out that the parties have not filed any annual returns over the last few years.
6. In opposition to the application, Counsel submitted that the current proceedings are meant to achieve what the applicant has sought in other proceedings, namely to kill the companies. He argued there are ongoing matters in relation to the parties, where the present question, and subject matter of the application is alive in those proceedings. He submitted that if an adverse order were to be made at this interlocutory stage, and before a full hearing, those proceedings would be undermined.
7. Further, Counsel contended that the substratum of the company is indeed intact, contrary to the applicant’s submission. Counsel referred the court to the annual returns and CR12 exhibited as evidence of the relevant shareholding.
8. Counsel submitted that the parties had engaged in discussion in relation to sale and purchase of the applicant’s shareholding. The same is a live matter that ought to be resolved prior to winding up the company. He submitted that there is an alternative route available to winding up, namely the purchase of those shares.
9. He referred the court to the Articles of Association of the Company, which he submitted provides for a casting vote where there is deadlock. Accordingly, he contended that there is no basis for liquidation arising out of deadlock.
10. He submitted that denying the right to a party to file suit, or lodging a complaint is denial of fair hearing, and ought not be granted at an interim stage. Further, that these reliefs have been sought in a previous suit and were determined and rejected by the court.
11. I have considered the submission of the parties together with the affidavits sworn in support and in opposition together with the applicable law. Based on the reasons stated by Counsel I am of the view that the present application is premature.
12. I am unable to find evidence that the Petition has been submitted to the Official Receiver for approval. I have not seen a certificate of Compliance filed by the Official Receiver, and I not see any evidence of notice of gazettement or advertisement of the Petition. All the above are mandatory steps to be taken by a petitioner prior to an order of liquidation by the court.
13. I do not think that the court may make such an order of liquidation at an interim stage without the necessary safe guards having been complied with given the draconian and final nature of an order of liquidation.
14. Further, I note that the present application was filed against the respondent, and not the company, which is the subject of the liquidation order. The petition therefore seeks to make the person, and not the Company the subject matter of a liquidation order.
15. Finally, the Petition is grounded on section 424 (1) (g), which speaks to circumstances in which the court finds that it is just and equitable to liquidate a company. Given the reasons stated above, I am not persuaded that this ground has been met at the present and interlocutory stage.
16. Nor am I of the view that the various injunctive reliefs ought to be granted based on the evidence before me, especially because there are ongoing and live matters presently before various courts. I am also alive to the fact that those prayers may have already been determined in relation to the same subject matter by another court of concurrent jurisdiction.
17. As a consequence, and based on the reasons set out above, and the reasons put forward by counsel, I dismiss the applicant’s Notice of Motion dated 21st November 2023 with costs to the respondent.
2. The Petitioner is seeking an injunctive relief restraining the respondent from filing further suits, complaints, and proceedings, criminal and or civil, in nature, and seeks the appointment of an interim liquidator.
3. The Petitioner submitted that the companies in question have only two shareholders, the applicant and the respondent. Further, that the substratum of the company seized to exist several years ago. At present, the company has no assets, and only exists on paper.
4. Counsel contended that the Respondent has been attacking an arbitral award and judgment of this court, affirming the arbitral award, and which had been adopted by as an order of the court. He pointed out that the court of appeal agreed with the applicant, that the respondent herein had not displayed any resolution thus far in the ongoing proceedings.
5. Counsel submitted that there are over 20 applications subsisting in relation to the parties, and that there is a deadlock between the parties. He pointed out that the parties have not filed any annual returns over the last few years.
6. In opposition to the application, Counsel submitted that the current proceedings are meant to achieve what the applicant has sought in other proceedings, namely to kill the companies. He argued there are ongoing matters in relation to the parties, where the present question, and subject matter of the application is alive in those proceedings. He submitted that if an adverse order were to be made at this interlocutory stage, and before a full hearing, those proceedings would be undermined.
7. Further, Counsel contended that the substratum of the company is indeed intact, contrary to the applicant’s submission. Counsel referred the court to the annual returns and CR12 exhibited as evidence of the relevant shareholding.
8. Counsel submitted that the parties had engaged in discussion in relation to sale and purchase of the applicant’s shareholding. The same is a live matter that ought to be resolved prior to winding up the company. He submitted that there is an alternative route available to winding up, namely the purchase of those shares.
9. He referred the court to the Articles of Association of the Company, which he submitted provides for a casting vote where there is deadlock. Accordingly, he contended that there is no basis for liquidation arising out of deadlock.
10. He submitted that denying the right to a party to file suit, or lodging a complaint is denial of fair hearing, and ought not be granted at an interim stage. Further, that these reliefs have been sought in a previous suit and were determined and rejected by the court.
11. I have considered the submission of the parties together with the affidavits sworn in support and in opposition together with the applicable law. Based on the reasons stated by Counsel I am of the view that the present application is premature.
12. I am unable to find evidence that the Petition has been submitted to the Official Receiver for approval. I have not seen a certificate of Compliance filed by the Official Receiver, and I not see any evidence of notice of gazettement or advertisement of the Petition. All the above are mandatory steps to be taken by a petitioner prior to an order of liquidation by the court.
13. I do not think that the court may make such an order of liquidation at an interim stage without the necessary safe guards having been complied with given the draconian and final nature of an order of liquidation.
14. Further, I note that the present application was filed against the respondent, and not the company, which is the subject of the liquidation order. The petition therefore seeks to make the person, and not the Company the subject matter of a liquidation order.
15. Finally, the Petition is grounded on section 424 (1) (g), which speaks to circumstances in which the court finds that it is just and equitable to liquidate a company. Given the reasons stated above, I am not persuaded that this ground has been met at the present and interlocutory stage.
16. Nor am I of the view that the various injunctive reliefs ought to be granted based on the evidence before me, especially because there are ongoing and live matters presently before various courts. I am also alive to the fact that those prayers may have already been determined in relation to the same subject matter by another court of concurrent jurisdiction.
17. As a consequence, and based on the reasons set out above, and the reasons put forward by counsel, I dismiss the applicant’s Notice of Motion dated 21st November 2023 with costs to the respondent.