Whether Receiver/Manager Can Act When his Appointment is a Subject of Litigation

In the Court of Appeal 

In the Lagos Judicial Division

Holden at Lagos

On Monday, the 13th day of April, 2026

Before Their Lordships

Joseph Eyo Ekanem

Danlami Zama Senchi

Uwabunkeonye Onwosi

Justices, Court of Appeal

APPEAL NO. CA/LAG/CV/1031/2025

Between

1. ECOBANK LIMITED

2. ACCESS BANK PLC.

3. FIRST CITY MONUMENT BANK LIMITED

4. FIDELITY BANK PLC.                  APPELLANTS

5. KEYSTONE BANK LIMITED

6. STERLING BANK PLC.

7. UNITED BANK FOR AFRICA PLC.

8. ZENITH BANK PLC.

9. FBNQUEST TRUSTEES LIMITED

               And

KEPCO ENERGY RESOURCES NIGERIA LIMITED                    RESPONDENT                    

(Lead Judgement delivered by Honourable Joseph Eyo Ekanem, JCA)

Facts

The 1st to 8th Appellant entered into contract with the Respondent for the grant of loan facilities to the tune of US $278,000,000.00. Multi-Facilities Agreement dated 23rd May, 2013 was executed by the parties in furtherance of the contract. This Agreement was subsequently amended, with the Second Amended and Restated Facility Agreement dated 31st December, 2019. Security deeds were also executed between the parties to secure the facilities. The 9th Appellant acted as the mandated lead arranger and facility agent. 

Following a dispute in respect of the transaction, the Appellants, purporting to act pursuant to the powers vested in them under the security deeds, appointed a Receiver/Manager over the Respondent on 19th June, 2025. The Deed of Appointment was registered with the Corporate Affairs Commission on 25th June, 2025. Meanwhile, after the meeting of parties to resolve the dispute ended in a stalemate, the Respondent pro-actively took out a Writ of Summons with a Statement of Claim at the Federal High Court, Lagos, seeking various declaratory and injunctive reliefs against the Appellants, in respect of the facility and the security deeds. It sought, among others, a declaration that by the CBN Circular titled “Currency Substitution and Dollarisation of the Nigerian Economy” dated 17th April, 2015 and 21st May, 2015, as well as the circular titled – “Granting of Foreign Currency Loans to Non-Dollar Generating Business” dated 4th August, 2015, it is unlawful for the Appellants to maintain or continue to maintain, settle or continue to settle domestic transactions in foreign currency, or issue or maintain loans denominated in foreign currency to a customer who does not generate receivables in foreign currency. The Respondent also filed motion ex-parte, and motion on notice for an order of interlocutory injunction restraining the Appellants and their agents from calling in or accelerating the facility prematurely; appointing a Receiver/Manager over the undertakings/affairs of the Respondent; enforcing or taking steps to enforce any share security or any other security granted over the assets of the Respondent or its sponsors, further to the disputed debt.

The court heard and granted the ex-parte application on 24th June, 2025, making an order of interim injunction restraining the Appellants from interfering with the res of the suit, including the appointment of a Receiver/Manager, pending the determination of the motion on notice. Upon service of the processes and drawn-up order on the Appellants, they filed a motion on notice seeking to set aside the ex-parte order, and an order declining jurisdiction to entertain the suit. On 22nd July, 2025, the trial curt heard submissions on both applications, and delivered a composite ruling thereon. The court dismissed the motion and prayers of the Appellants, except for the order restraining the appointment of a Receiver/Manager. The court, however, granted the reliefs sought in the motion on notice, filed by the Respondent.

Aggrieved by the decision, the Appellants filed this appeal. The Respondent filed a preliminary objection urging the court to strike out or dismiss the appeal, or strike out the Appellant’s brief of argument for proliferation of issues, and on the basis that the issues did not arise from any ground of appeal. 

Issues for Determination

The appellate considered the issues raised by the Respondent as apt for the determination of the appeal, and adopted them. They are:

1. Considering the facts and circumstances of the case before it, whether the lower court as right in refusing to decline jurisdiction as sought by the Appellants herein.

2. Did the lower court rightly make injunctive orders on notice, for the preservation of the res of the suit before it?

Arguments

On the preliminary objection raised by the Respondent, the Appellants contended that the objection did not conform with Form 11 of the Schedule to the Court of Appeal Rules. Arguing the preliminary objection, the Respondent submitted that issue two on page 20 of the Appellants’ brief of argument is additional issue to those raised at pages 5 and 6, thus, resulting in proliferation of issues. 

Arguing the substantive appeal, the Appellants contended that the trial court having rightly found that the appointment of a Receiver/Manager was a completed act which it lacked jurisdiction to restrain, the court was bound to give full effect to the statutory consequences of that finding. They questioned the court’s validation of the Respondent’s action which was commenced without the requisite authorisation of the Receiver/Manager, contrary to Section 556(3) of the Companies and Allied Matters Act (CAMA) 2020 and the Eleventh Schedule to the Act. They argued the trite position of law that, once a Receiver/Manager is appointed over the whole or substantial part of the assets of a company, he alone is imbued with power to institute or defend proceedings in the name of the company – DAGAZAU CARPETS LTD v BOKIR INTERNATIONAL CO. LTD. (2025) 8 NWLR (PT. 1992) 271, ONAFOWOKAN v WEMA BANK PLC. (2011) LPELR-2665(SC). The Appellants submitted that the findings of the trial court that a Receiver/Manager has been appointed, but the authorisation of the Receiver/Manager for commencement of the suit was not required, are mutually irreconcilable. They posited that the suit was incompetent ab initio, and the court lacked the jurisdiction to entertain the suit. They argued further that the Respondent cannot rely on ignorance of the law (appointment of the Receiver/Manager), to circumvent the clear statutory mandate under Section 556(3) of CAMA and binding judicial pronouncement of the Apex Court on the issue. The Appellants submitted further that, the reliance on “triable issue” by the Respondent cannot override the effect of a subsisting receivership, or derogate from the express provision of CAMA which vests exclusive power in the Receiver/Manager to sue and defend in name of the company.

The Respondent countered the submissions of the Appellant, arguing that the trial court did not acknowledge a due appointment of a Receiver/Manager, as the court was categorical that the suit challenges the appointment of a Receiver/Manager. More so, the issue before the court focused on whether an event of default had occurred to enable the Appellants appoint a Receiver/Manager. Relying on the decision in O.B.I. LTD. v UBN PLC (2009) 3 NWLR (PT. 1127) 129, the Respondent stated that an exception to the powers of a Receiver/Manager to sue on behalf of the company, is where his appointment is the subject of judicial proceedings. Further reference was made to SUIT NO. FHC/L/CS/1281/2025, to submit that the Appellants are by that suit, seeking a determination of whether the Receiver/Manager can exercise the functions of the said office. It relied further on Section 559 of CAMA to argue that it would be absurd to hold that without the requisite notice of the purported appointment of a Receiver/Manager to the company, the Respondent should have sought his authorisation before commencing the suit. It argued that ignorance of the existence of certain facts (as opposed to ignorance of the law), cannot be classified as forming part of inexcusable circumstances. The Respondent posited that the Appellants seek to orchestrate a scheme to enable them act as both Plaintiffs and Defendants, contrary to recognised principles of law. 

Court’s Judgement and Rationale

Deciding the preliminary objection of the Respondent and the challenge to its form as raised by the Appellants, the appellate court held that the wording of Order 10 rule 1 of the Court of Appeal Rules, does not mandate the use of Form 11 in giving the notice of preliminary objection. Though the form used by the Respondent slightly differs from Form 11, the law is that deviation from the form prescribed is not fatal, since generally forms in Schedules are inserted merely as examples and for convenience – Section 23 of the Interpretation Act; EGOLUM v OBASANJO (1996) LPELR-1046(SC). Regarding the objection, the court found that there is a difference between issue b and issue 2 raised by the Appellants. Highlighting the issues, the court held that the difference is minimal and minute, and the law does not concern itself with such inconsequential differences. The two issues in substance are the same, and the substance of the issues flow from the grounds of appeal. The preliminary objection was, thus, overruled.

Deciding the substantive appeal, on issue one, the Court of Appeal analysed the findings of the trial court and came to the decision that the trial court found that the Appellants had appointed a Receiver/Manager before the commencement of the suit. And in line with Section 556(3) of CAMA, upon his appointment, the Receiver/Manager is deemed to be an agent and the alter ego of the company. The powers of the directors to act for the company become suspended and only the Receiver/Manager can sue or defend an action on behalf of the company in the name of the company in regard to the assets under his control or covered by the debenture – O.B.I. Ltd v UBN PLC (Supra). However, there is an exception to the general position of the law stated in the above paragraphs, to wit: the company or the directors may bring a suit to challenge the appointment of the Receiver or his continuance in office as such, or in respect of assets outside the control of the Receiver, in which case the consent of the Receiver is not required. 

Considering the Statement of Claim filed by the Respondent, the court found that the Respondent challenges the appointment of the Receiver/Manager and the calling in of the credit facility on the basis that an event of default had not occurred in line with the Second Amended and Restated Facility Agreement, among others. In this case, the consent or authorisation of the Receiver/Manager is not required. It is immaterial that the cases relied on by the Respondent, didn’t consider a situation where the Receiver/Manager had been appointed prior to the commencement of the suit. Importantly, this suit though commenced in ignorance of the said appointment, challenges the appointment anticipatorily.  It is not for the court at this stage, to delve into the probability of success of the case.

The appellate court also distinguished the present case from its earlier decision in Appeal No. CA/LAG/PRE/ROA/CV/1283M1/2025 – FBNQUEST MERCHANT LTD & ANOR v NESTOIL LTD & ORS., stating that the said decision has no bearing on the present case. In the NESTOIL case, the court disqualified Counsel who sought to appear for the company in receivership, in an application by the creditors of the company to ask for directions in respect of the activities of the Receiver/Manager. That suit was not a challenge to the appointment of the Receiver/Manager, as it is in this case.

Being an intermediate court, the Court of Appeal decided the other issues before it. On the position of the Respondent that the Appellants by SUIT NO. FHC/L/CS/1281/2025 submitted the propriety of the appointment of the Receiver/Manager to the determination of the court, the appellate court found that there is no relief in the said action which supports the position of the Respondent. What the Appellants submitted to the court relates to judicial sanctioning of the appointment. Further, Section 559(1)(a) of CAMA which prescribes the immediate notification of the company of an appointment of a receiver, is to enable the Receiver or Manager and the company to comply with the requirements and timelines as provided in subsections 1(b) and (c) and 2 of Section 559. The only sanction for default as stated in Section 559(7) is penalty for each day of default, as prescribed by the Corporate Affairs Commission in its Regulations. The penalty does not include deferment of the powers of the Receiver. The court also found that the issue of fair hearing raised by the Respondent is not applicable, as a party needs to establish his locus standi to file the suit before activating his right to fair hearing. 

Deciding issue two, the Court of Appeal held that further to its finding that the consent of the Receiver/Manager to institute an action is not required where the appointment is being challenged, it follows that the court needs to preserve the res of the dispute, so it will not be dissipated pending the determination of the suit. The trial court properly exercised its discretion in granting the restraining order as there are triable issues in the suit, and damages cannot be adequate to compensate the Respondent in this case. The issue was also resolved against the Appellants.

The Court of Appeal agreed with the lower court that: “….it is better for the Receiver/Manager whose appointment is still the subject of litigation, not to engage in any act that is capable of destroying the res in this case. More justice will result in making him not to act pursuant to his appointment, than to allow him to so act, which is capable of destroying the res in litigation in this case”.

On the whole, the court adjudged the appeal as unmeritorious, and affirmed the decision of the trial court.

Appeal Dismissed.

Representation 

A.B. Ogunba, SAN with O.T. Ogunba, O.K. Ogunba, M.B. Ottun, I.M. Kush and M.O. Olope for the Appellants.

Bode Olanipekun, SAN and Dr Remi P. Olatubura, SAN with O. Adekoya, R. Nkannebe, Adeola Akinyemi, Mariam Oyede, E. Fagbolade and Ayomide Ajayi for the Respondents.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)