NOTES ON UNITED BANK FOR AFRICA PLC v OTUNBA OLUTOLA SENBORE & NIGERIAN MOBILE TELECOMMUNICATIONS LTD (MTEL) (IN LIQUIDATION) CA/A/894/2017 UNREPORTED DELIVERED ON 28TH JUNE 2019

The Petitioner, Nigerian Mobile Telecommunications Limited presented a winding up petition to the Federal High Court inter alia for inability to pay its debts, the company being insolvent. The 1st Respondent was appointed as Liquidator on the 14th March 2014. The 1st Respondent as liquidator of MTEL, on 1st December, 2015 brought an application within the Petition against the Appellant bank (UBA PLC) who were not parties in the winding up petition, for recovery of the sum of N685,390,365.25 that was expressly admitted as due and payable by the Appellant as banker to the 2nd Respondent Bank which sum the company was prima facie entitled pursuant to sections 440 and 443(1) of the Companies & Allied Matters Act 1990 and Section 20 of the Evidence Act 2011.

The Court of Appeal in a unanimous decision decided a novel and recondite point of law on whether the Respondent as Applicant in the lower court can bring a summary judgement application in a winding up petition. The Appellate Court per his Lordship Hon. Justice TINUADE AKOMOLAFE-WILSON (JCA) cleared the air on a procedural law involving Insolvency Practice in a compulsory winding up by the court. The Court of Appeal in affirming the decision of the lower court, agreed with the argument of Mr Adetokunbo Jaiye-Agoro for the Respondents that the bringing of an application within a Petition for winding up is likened to summary judgment applications in most State High Court Civil Procedure Rules by virtue of sections 440 and 443(1) of the Companies and Allied Matters Act 1990. (Page 13 of the judgment). The Applicant need not file a fresh action by writ of summons but bring a summary judgment application against the Appellant as banker of the company for the sum due which sum the company is prima facie entitled.

The Appellant raised the following issues for determination. Whether the Respondent ought to file a fresh action? Whether leave was obtained under section 417 and 425(1) CAMA? Whether the application was an abuse of the process of the court and whether the Appellant can deny an admission having regard to contradictions and inconsistencies in their narrative? The Court of Appeal resolved all the issues raised by the Appellant Bank in favour of the Respondents. The Court of Appeal affirmed the decision of the lower court in holding that the Appellant Bank having expressly and emphatically admitted owing MTEL the sum of N685,390,365.25 is estopped from later denying such a statement. The Court of Appeal held that the trial court was right to order the Appellant Bank to pay the sum of N685,390,365.25 into the Respondent’s Liquidation account on the basis of documentary admission. .( See pages 25-27 of the Judgment).

Dissatisfied with the judgment, the Appellants have filed a Notice of Appeal to the Supreme Court.

DATED FEBRUARY 2020

G. Ofodile Okafor (SAN) & CO (Appellant’s counsel)

Jaiye Agoro & Co (Respondent’s counsel)