Common Law, Judicial Precedents and the Nigerian Receivership Procedure

Abstract

Are the Intercontractors principles still valid insolvency law in Nigeria under CAMA 2004? Before the enactment of the Companies and Allied Matters Act 1990 (CAMA), receivership in Nigeria was governed by case law, informal rules (of practice) and the Companies Decree 1968. At the time, Nigerian judges were heavily influenced by British case law, precedents were British, and the Nigerian Companies Decree was a transplant of the British Companies Act 1948. Against this background, the Supreme Court of Nigeria delivered the Intercontractors decisions in 1988, which subsequently governed the nature, status and powers of Nigerian receivers. In 1990, CAMA introduced a more robust receivership regime which prescribed the nature, status and powers of the receiver, reversing some of the Intercontractors principles. But the courts, particularly the Supreme Court, failed to enforce the relevant provisions of CAMA or to examine the applicability of the Intercontractors principles they conscientiously enforced. It is difficult to speak in absolutes when referring to these principles. The court which seeks to apply them must sift through the principles to determine whether they are applicable in the context in which they are to be used.

Keywords: Nigerian Receiver, Intercontractors, CAMA 1990, Receivership