Ladipo Sanusi/
Pharma-Deko Plc has informed a Federal High Court, in Lagos, that it has filed an application seeking to commit to Prison two management staff of Guinness Nigeria Plc, for violating the law as stipulated under the Company and Allied Matters Act (CAMA).
The committal to prison proceeding arose in the course of a winding up petition instituted against Guinness over alleged debt of N175, 699, 317.99 million.
Pharma-Deko had in its winding-up petition, marked FHC/L/CP/69/2017, approached the Court to wind-up Guinness, over the said debt.
At the resumed hearing of the winding-up petition, counsel to Pharma-Deko, Chief (Mrs) A. Williams Akinjide (SAN), informed the court that her client had filed two motions in relation to the matter.
The first motion dated March 30, 2017, according to her, is seeking to commit to prison two top officers of Guinness, namely: Mr. Babatunde Abayomi Savage and Mr, Peter Ndegwa – the Chairman and Managing Director/Chief Executive Officer of the company respectively.
The second motion dated March 21, 2017, according to the senior lawyer, is seeking an injunction restraining Guinness, its directors, staff, agents and privies from making any application to Nigerian Stock Exchange Commission (SEC), in respect of Guinness’ stocks and shares or dealing in any of its assets.
Urging the Court to grant the two motions, Chief Akinjide said that the respondents had violated sections 413 and 415 of the Company and Allied Matters Act (CAMA), which enjoined them to seek the leave of the Court before they can deal in their accounts, shares, and issuing of right issues, once a winding-up petition had been filed.
She particularly stated that section 415 of CAMA made it clear that the winding-up petition stands once the petition is filed.
Counsel to Guinness, Mr. M. Mordi, in response to the petitioner’s application, said he had filed an application challenging the Court’s jurisdiction in entertaining the petition on the ground that the alleged debt was status bar, having been over eight years.
Mordi said his client’s application dated January 23, 2017, was also seeking for stay of commital proceedings against his client pending when the jurisdiction issue would be resolved.
The lawyer added that as a result of the petition, the Security and Exchange Commission, SEC, had written to the company to put on hold its proposed N40 billion right issues.
He also informed the Court that they kept the draft of the N175 million which the petitioner is demanding for with the Court’s Deputy Chief Registrar (DCR) pending when the matter is concluded and that there is nothing to fear by the plaintiff.
Responding to Guinness’ submission, Chief Akinjide said that the respondents’ submission had shown that they have no regards for the Provisions of CAMA.
The presiding judge, Justice Hadizat Rabiu-Shagari, adjourned till Monday April 10, 2017, for hearing of all pending applications.
In the winding-up petition argued by Chief Akinjide, Pharma-Deko, is urging the court to wind-up Guinness, due to inability to pay an undisputed contractual debt of N175, 699, 317.99 million. Marked FHC/L/CP/69/2017, the petition was filed and argued before the Court, by Mrs. E. Etomi, of Chief Rotimi Williams’ Chambers.
Pharma-Deko is also urging the Court to appoint an official Receiver, as a provisional liquidator.
The petitioner also stated that its request to wind-up the respondent was pursuant to the provision of the Companies and Allied Matters Act Cap. C20, Laws of the Federation of Nigeria, 2004.
The petitioner in an affidavit of verifying winding-up petition deposed to by its production manager, Olukayode Isola, averred that it entered into a canning with Guinness, and as a result of breach of contract by the company, an arbitration proceedings was conducted in accordance with the contract on the basis of which an award was made on July 1, 2016.
It also stated that Guinness Nigeria Plc participated in the proceedings fully and received the award at the same time it received it.
It added that by the award referred to, Guinness is contractually indebted to it in the sum of N175, 699, 317.99.
It stated further that all efforts since July 1, 2016, to get the contractual debt paid had been ignored or refused by the Guinness, even after writing and forwarding several demand notices in pursuant to statutory laws.
In response to the winding-up proceedings, Guinness urged the Court to strike out the suit in its entirety for want of jurisdiction.
In its affidavit in support of the motion for striking out of the suit deposed to by Rotimi Odusola, the Guinness’ legal director and Company Secretary, stated that by the notice of Arbitration dated February 10, 2010, Pharma-Deko instituted an arbitration against Guinness, alleging a breach of contract and unlawful termination of contract canning agreement dated July 2006.
It averred that upon the conclusion of the Arbitration, the sole arbitrator published a final award on July 1, 2016, of N195, 167, 986. 87. It was subsequently corrected and republished on August 1, 2016, in favour of Pharma-Deko.
It however stated that upon the counter-claim filed by the Pharma-Deko, the Arbitrator awarded the sum of N21, 222, 421.43, to Guinness Nigeria Plc, thereby leaving a balance of N175, 699, 317. 99.
It added that Pharma-Deko Plc only presented the winding-up proceedings under the guise or pretext that Guinness Nigeria Plc, is insolvent, adding that winding-up proceedings is not the proper mode of enforcing an arbitral award as set out in the law regulating arbitration proceedings in Nigeria.
It also stated that the award is statue barred and unenforceable in law.
Consequently Guinness urged the Court to strike out Pharma-Deko’s winding-up petition for want of jurisdiction.
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