Can an officer of a company be held liable for dud cheques issued in the name of the company?

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Can an officer of a company be held liable, Dud cheques issued in the name of a company

PRINCIPLE:

“The Appellant who is the Managing Director of Basicon Engineering Company Ltd. was charged under Section 1(1) (b) (i ) of Dishonoured Cheques (Offences) Act 2004 for allegedly issuing out dud cheques. These cheques were issued to Emcyn Industries Ltd. by Basicon Engineering Company Ltd., both companies are duly registered with the Corporate Affairs Commission as required by the Companies and Allied Matters Act. The fact that Basicon Engineering Company Ltd. is duly registered as evidenced in Exhibit 7(B) which is a letter from Corporate Affairs Commission confirming that these two companies are registered and also Exhibits 5 and 5A which are letters from Fidelity Bank confirming that both registered companies have their company accounts with Fidelity Bank Plc. The contract, all the agreements/undertakings and documents leading up to the issuance of the alleged dud cheques were all executed in the name of the two registered companies. Ultimately, the alleged dud cheques were issued from one registered company to another registered company. The signatures on these documents belong to the Appellant as the Managing Director of his company and not in his personal capacity. The provision of the law is that when a company is registered, it becomes a legal entity with a distinct legal personality which can sue and be sued. See Section 65 of the Companies and Allied Matters Act, ABACHA V. A.G. FEDERATION (2014)18 NWLR (Pt. 1438) P.31 and MR. FORT IFEANYI DIKE V. KAY-KAY CONSTRUCTION

LTD.(2017)14 NWLR

(Pt. 1884) P.1. The fact that a company has been registered and becomes a legal personality does not bestow upon it the ability to carry out its functions personally; these functions are to be carried out by its officers and Directors, through

Annual General Meeting and Board Meetings. The law also provides that such

acts carried out by the officers of a registered company are deemed acts of the

company and the company is liable and responsible for these acts which were

carried out on its behalf. See SECTION

63(3) CAMA; ODUTOLA HOLDINGS LTD. V. LADEJOBI (2006) 12 NWLR

(PT.994) and IWUCHUKWU V. NWIZU (1994) 7 NWLR (PT. 357) 379 SC.

The reference of learned Counsel to the Respondent to Section 305 of the

Investment and Securities Act is misplaced in the instant appeal because the

Appellant was charged and tried under a different law that is Dishonoured

Cheques (Offences) Act, 2004. Therefore, the submission by the Respondent’s

Counsel that the Appellant who was in charge of the company shall be deemed to

be guilty of the offence and held liable is not tenable.

Section 305 of the Investments and Securities Act recognises two categories of

persons, the director responsible to the company for the conduct of the business

of the company and the company as a distinct entity. This was elicited per

Regina Obiageli Nwodo, JCA.

(OBM) in Olawepo V. S.E.C. as cited by the Respondent. This being the case,

the company ought to be held liable also, but there is no mention of the Appellant’s company in the charge sheet on whose behalf the Appellant acted. On the

contrary, Dishonoured Cheques (Offences) Act specifically made provisions for

registered companies to be charged and tried for the issuance of dud cheques

under Section 1(1) (b) (i ) of the Act.

The law clearly envisaged situations such as in the instant appeal and made

appropriate provisions for it. The Courts have been enjoined to accord the

natural meanings of words in documents, contracts and statutes where such

words are clear and unambiguous in order to ascertain the true intentions of the

makers. See UBN LTD. V. OZIGI (1994) 3

NWLR (Pt. 333) 385 and ALFOTRIN LTD. V. A.G. FEDERATION(1996)9

NWLR (Pt. 475) P.634 @ P. 638. This Court is bound by these laws. The

argument canvassed by the Respondent’s Counsel that the veil of incorporation

can be lifted whenever the interest of justice demands it is not applicable in the instant appeal. This being that this Court has held per Edozie, JCA (AHTW) in A.C.B. LTD. V. APUGO (1995) 6 NWLR (PT.399) P. 72 that;

“The circumstances under which the Courts lift the veil of incorporation for the purpose of paying regards to the economic realities behind the legal facade of incorporation are well defined. They include; (a) Where the number of members fall below the statutory minimum; (b) Where the company has been carried on in a reckless manner or with intent to defraud creditors; and (c) Where the company is a sham. Though the foregoing is not exhaustive of the circumstances under which the courts lift the veil of incorporation, the common trend in all the circumstances is that the company involved must have been guilty of some improper conduct to warrant the lifting of the veil to see who was behind the improper conduct. In the case under consideration, the conduct of the company was not in issue. The Appellant had not instituted any action against the company for the investigation of its affairs. There was therefore no basis for the request by the Appellant that the corporate veil of the company should be lifted.” None of the conditions for lifting the veil of incorporation have been made out in this appeal. There is no basis for the request that the corporate veil of the company be lifted when the company is not standing trial. The Appellant is a human person by the name of Nwabueze Akobundu and he has not been tried jointly with any other person nor body corporate. What veil is there to be lifted? The company who is the bearer of the alleged dud cheques was the appropriate person to face the charges at the trial Court. The Appellant ought not to be charged and tried for acts done on behalf of the company and in the name of the company.” Per DONGBAN-MENSEM, JCA.(Pp.10-15,Paras.D-C).

AKOBUNDU vs. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR-47667(CA)

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