HONEYWELL FLOUR MILLS PLC (RC.NO. 55495)
ECOBANK NIGERIA LTD (RC. NO. 89773
SAMUEL CHUKWUDUMEBI OSEJI: This appeal challenges the Ruling of the Federal High Court, Lagos Division delivered by M.N. YUNUSA J. on the 4th day of December 2015.
The Respondent herein had as Plaintiff in the lower court filed a petition dated and filed on the 9th of November 2015 sought the following reliefs against the Defendant (now Appellant).
WHEREOF your Petitioner therefore humbly prays as follows:-
a. That HONEYWELL FLOUR MILLS PLC with Registration No. 55495 be WOUND UP by the court under the provisions of Sections 409 (1) and 410 (1) (b) of Companies and Allied Matter Act, Cap C20 Laws of the Federation of Nigeria, 2004.
b. Or such other Order(s) may be made in the premise as this Honorable Court consider just in the circumstance.
Contemporaneous with the said petition the Respondent filed a motion Exparte on the same 9-11-2015 seeking five orders against the Appellant and other parties.
In a nutshell, the Respondents case was that the Oceanic Bank PLC (which it has now acquired with all its liabilities, rights and obligations) entered into an import finances Facility/Revolving Product Finance Facility and overdraft facility agreement with the Appellant.
Sequel to the said acquisition it embarked on a process of recovery of the huge sum of money said to be owed by the Appellant as a result of the credit facilities. Sometimes in July 2013, the Appellant through the Chairman of Honeywell Group Limited, OBA OTUDEKO proposed the payment of the sum of N3.5 Billion out of the N5.5 Billion owed by the Appellant and other sister companies under the Honeywell Group Ltd.
The proposal by the Chairman of the Group to pay the sum of N3.5 Billion was accepted by the Respondent on certain conditions, part of which was the payment of the sum of N500 Million immediately and the remaining balance before the Central Bank of Nigeria (CBN) examiners leave the bank on inspection as was clearly stated in the letters exchanged by the parties on the 22-7-2013 which is based on the in principle agreement. The Appellant was fully aware that the CBN examiners will leave the bank by the end of August 2013 and on the basis of which the concession to pay the sum of N3.5 Billion was made by the Respondent in order to balance its acquired accounts.
The Appellant subsequently defaulted in the bullet and staggered repayment of the indebtedness as suggested by OBA OTUDEKO, the Chairman of Honeywell Group Limited on behalf of the defaulting Appellant and other sister companies. This led to a series of correspondences and proposals by the Appellant urging the Respondent to accept the said sum of N3.5 Billion as full payment to settle the indebtedness and which proposal was not agreeable to the Respondent given the failure of the Appellant to honour the in principle agreement.
The intervention of the Bankers Committee and the sub-committee on Ethics and Professionalism did not yield positive results and the Appellant took the option to institute an action in the Federal High Court Lagos Division in Suit No FHC/L/CS/1219/2015.
The said Suit was filed on 6-8-2015 wherein the Appellant sought inter alia, the specific performance of the in principle agreement of 22-7-15. During the proceedings of the court presided over by M.B IDRIS J., the Learned Trial Judge made an order for the parties to maintain status quo ante Bellum.
The Respondent felt that it has been exposed to scrutiny by the Central Bank of Nigeria and other statutory bodies and consequently filed a petition for winding-up on 16-10-15 followed with applications for interim/interlocutory reliefs seeking to preserve the assets and funds of the Appellant pending the appointment of a provisional liquidator and the hearing of the petition before the lower court.
The Respondents petition for winding-up filed on 16-10-15 was assigned to J.T. TSOHO J. who heard the Exparte application for interim reliefs towards preserving the assets/funds of the Appellant and declined to grant same but directed that the Respondent put the Appellant on notice and Suit adjourned.
The Respondent however filed a notice of discontinuance of the said petition in Suit No FHC/L/CP/1569/2015.
On 9-11-15, the Respondent filed a fresh petition for winding-up against the Appellant vide Suit No FHC/L/CP/1689/2015 and contemporaneous with same, it filed another motion exparte seeking an interim order for the preservation of the Assets/funds of the Appellant. The Suit was assigned to M.N.YUNUSA J who entertained the motion Exparte on 18-11-2015 and granted same.
Upon being notified of the grant of the Exparte orders in Suit No FHC/L/CP/1689/2015 the Appellant filed a motion on notice on 24-11-2015 seeking the order of the said court to discharge the Exparte orders so granted and dismiss the petition before it on grounds of abuse of court process amongst others.
The Respondent herein filed a counter affidavit to oppose the said motion and also filed a motion on notice seeking the order of court to dismiss the said motion on notice for being an abuse of process.
The two applications were then taken together and in a Ruling delivered by YUNUSA J. on 4-12-2015, the court declined to vacate or discharge all the interim orders made but rather varied them by allowing the Appellant access to withdraw the sum of N15 Million per week for the running/overhead expenses and also suspended the order for advertisement of the petition for winding-up.
The lower court also refused to grant the Respondents application to dismiss the Appellants motion.
The Appellant was dissatisfied with the said Ruling delivered on 4-12-15 and consequently filed a Notice of Appeal with 9 grounds of Appeal on 14-12-2015. The Respondent also filed a Notice of Cross-appeal dated 9-11-2015.
Briefs of argument were subsequently filed and served and same were adopted by the parties at the hearing of the appeal on the 22-2-2016.
The Appellants brief of argument is dated and filed on 23-12-2015, while the Appellants reply brief to the Respondents brief of argument is dated and filed on 1-2-2016.
The Respondent/Cross-appellants brief of argument is dated and filed on 22-1-2016 but deemed filed on 27-1-16 and the Respondents reply to the Preliminary objection as well reply to the Cross-respondents brief is dated and filed on 17-2-16 and deemed properly filed and served on 22-2-2016.
The hearing of the appeal was however preceded by the moving of the Notice of Preliminary objection filed by the Respondent on the 22-1-2016. The said Notice of preliminary objection seeks the striking out of the Appellants Notice of Appeal dated 14-12-2015 for being incompetent on the following grounds.
(a) Trial courts interlocutory ruling, subject of Appellants Notice of Appeal was in respect of (APPELLANTs) motion on notice dated 9th day of November, 2015.
(b) Ruling of the trial court is an interlocutory decision of the trial court in respect of Appellants application.
(c) Section 14 of the Court of Appeal Act, mandatorily CONDITIONS the obtainment of leave before filing of an appeal of this link.
(d) Section 241 (1) (b) of the 1999 Constitution, allows only the filing of an appeal as of right (without leave) when grounds therein are of questions of law alone.
(e) GROUNDS 1, 2, 3, 4, 5, 6, 7 AND 8 in the Notice of Appeal questions the trial courts decision to uphold the ex-parte order made against the Appellant on 18th November, 2015 after the evaluation of facts.
(f) The decision of trial courts to uphold the interim orders made on 18th day of November, 2015 is a question of mixed of law and fact as it falls on the evaluation of facts by the lower court before the application of the law. OGBECHIE VS. OGBECHIE (1986) 2 NWLR (PT. 23) SC 484.
(g) As held in ABDUL VS. C.P.C. (2014) 1 NWLR (PT.1388) PG 299, @ PG 322-324, a ground of appeal which complains that the decision of the trial court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses is purely a ground of fact which requires leave.
(h) No leave of either the lower court or that of this appellate court was first sought and obtained before the filing of Appellants Notice of Appeal, dated 14th day of December, 2015.
The Respondents argument in support of the said Preliminary Objection is contained in paragraphs 3.0 to 3.28, pages 4 to 8 of the Respondent/Cross-appellants brief of argument. Therein it was submitted that the appeal emanated from the interlocutory Ruling of the lower court and going by the provision of Section 241(b) and 272(1) of the 1999 Constitution an Appellant can appeal as of right from the High Courts to the Court of Appeal only where the ground of appeal involves question of law alone but with leave of the High Courts or the Court of Appeal on other grounds involving questions of facts.
Learned Senior Counsel for the Respondent then submitted that grounds 1, 2, 3, 4, 6, 7, 8 and 9 in the Appellants Notice of Appeal dated 14-12-2015 involves issue of fact or at best mixed law and facts.
On ground one it was contended that the Appellants complaints were about the decision of the lower court of 4-12-15 which was premised on appraisal of set of facts before it as it relates to discharge of interim orders made on 18-11-15 and the application of law thereon and this borders on mixed law and facts.
On Grounds 2 and 7 it was argued that they fall under the guide provided in the case of OGBECHIE VS ONOCHIE (1986) 2 NWLR (PT 23) 484 as they relate to the lower courts evaluation of facts before the application of the law.
Grounds 3, 4, 6 and 7 were said to complain about the discretionary use of jurisdictional vires of the lower court on the usage of the word mareva injunction as in preservative order of court. The case of OLORUNKUNLE VS ADIGUN & ORS (2012) LPELR (8024) CA and OGBECHIE VS ONOCHIE (Supra) were cited to contend that all the aforementioned grounds are grounds of mixed law and facts as espoused in the two cases.
For Grounds 5, 8 and 9 it was submitted that the Appellants complaint were in respect of admittance or denial of indebtedness to the petitioner and the failure to consider and rule on fundamental issues raised before the lower court in which case the said grounds reek of facts and facts alone. Further authorities were cited in support which includes ABDUL VS CPC (2014) 1 NWLR (PT 1388) 299 at 322; GARUBA VS OMOKHADION (2011) 15 NWLR (PT 1269) 145; PRUDENCE BANK PLC VS OBADAKI (2012) 2 NWLR (PT 1285) 504 and RE THE VESSEL M.V. LUPEX (1993) 2 NWLR (PT 278) 670 at 683.
This court was then urged to uphold the preliminary objection and strike out the appeal.
Replying on the said preliminary objection, Learned Senior Counsel for the Appellant referred to Section 241(i) (f) (ii) of the 1999 Constitution to submit that the clear and unambiguous wordings of the section extends to a right of appeal without leave in respect of decisions where an injunction is granted as in the instant case where an Exparte Order of injunction was made by the lower on 18-11-2015. He then referred to CALABAR CENTRAL CO-OPERATIVE AND THRIFT SOCEITY LTD VS EKPO (2008) 1-2 SC 229 where the Supreme Court held that, where words used in a statute are clear and unambiguous, they require no interpretation, but direct application of same by the courts and Section 241 (i) (f) (ii) is very clear that an Appellant can appeal as of right in respect of decisions where an injunction has been granted.
Furthermore, on when appeals can arise as of right, Learned Senior Counsel referred to the case of FBN VS TSA INDUSTRIES LTD (2010) 15 NWLR (PT 1216) 247 at 291-292; COMEX LTD VS NAB LTD (1997) 3 NWLR (PT 496) 643 and CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD Supra at 273-275.
To further support and justify the stance that the nine grounds of appeal are grounds of law, Learned Senior Counsel gave a detailed analysis of the content of each ground with authorities in support where necessary and consequently urged this court to dismiss the preliminary objection.
I am minded to reproduce the said 9 grounds of appeal which shorn of their particulars are set out below:-
The Learned Trial Judge erred in law and came to a perverse decision in his ruling of 4th December, 2015, whereby he refused to discharge/set aside his ruling/orders made ex-parte (against the Appellant) on the 18th November, 2015.
The Learned Trial Judge, by his ruling of 4th December, 2015, erred in law in his failure to discharge the ex-parte orders made against the Appellant on 18th November, 2015.
The Learned Trial Judge misdirected himself in law and came to a preserve decision in holding, by his ruling of 4th December, 2015 that the orders made by him are in the nature of a mareva injunction.
The lower court misdirected itself in law and came to a preserve decision in its variation of its order of 18th November, 2015, (vide its ruling of 4th December, 2015) to the extent that the Appellant should be allowed to withdraw a cumulative amount of N15, 000,000 a week either from a single or all of its accounts.
The Leaned Trial Judge erred in law and came to a perverse decision by holding that Appellant did not deny indebtedness to the petitioner, and that the interest of justice demands that the order of 18th November, 2015 should be sustained.
Having rightly suspended the ex-parte order for publication of the statutory and procedural notices, the lower court misdirected itself in law in its refusal to discharge all its orders of 18th November, 2015, as well as striking out the entire petition/proceedings before it.
The lower court erred in law and also came to a perverse decision in its refusal to set aside the ex-parte orders made by it on 18th November, 2015 as well as the prayer for stay of proceedings for arbitration, on the ground that Appellant had taken steps in the proceedings.
The Learned Trial Judge misdirected himself in law and came to a perverse decision in his failure to consider and rule on substantial parts of the fundamental issues raised before him by the Appellant in moving its application dated 23rd November, 2015 and filed 24th November, 2015.
The Learned Trial Judge erred in law and came to a perverse decision when it refuse to grant, by treating as unchallenged, the Appellants application dated 23rd November, 2015 for the discharge of the ex-parte orders granted by it and striking out/dismissal of the action.
I have carefully reviewed the above set out grounds of appeal with the particulars, vis-à-vis the relevant authorities on the determinants of when a ground of appeal is that of law, facts or mixed law and facts.
A case in point where a detailed guide was provided is CHIEF OF AIR STAFF VS IYEN (2005) 6 NWLR (PT 922) 496 where the Supreme Court held at pages 541 to 542 that:-
A ground of appeal is a ground of law if the grounds deal exclusively with the interpretation or construction of the law without resort to the facts.
In this respect, the court is involved in the interpretation or construction of either the Constitution or the statute with no reference to any factual situation.
A ground of appeal which alleged a mis-application of law to the facts of the case is a ground of law. On the other hand a ground of appeal is one of mixed law and fact when the ground deals with both law and fact. It is a mixed grill of law and facts so to say. A ground of appeal is one of fact where the grounds deal exclusively with the facts of a case and the facts only.
In the determination of the grounds of appeal, the courts in most cases refer to the particulars if there are particulars. This will enable the court to have a full view of the ground of appeal and come to the conclusion whether it is a ground of law, or one of mixed law and fact or facts simpliciter.
This is because the tag name of ground of law by the Appellant does not necessarily make it so.
Equally in OGBECHIE VS ONOCHIE cited Supra by Learned Senior Counsel for the Appellant the Supreme Court made it quite clear that:-
There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower court of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one that would require questioning the evaluate of facts by the lower court before the application of the law in which case it would amount to question of mixed law and fact.
The issue of pure fact is easier to determine.
In AMUDA VS ADELODUN (1997) 5 NWLR (PT 506) 480, the Apex Court in addressing the issue of classification of grounds of appeal relied on NWADIKE VS IBEKWE (1987) 4 NWLR (PT 67) 718 to observe that:-
It is more difficult to distinguish between a ground of appeal based on error of law and a ground of appeal on mixed law and fact as the line of distinction is always very thin. Care must therefore be taken not to inadvertently convert a ground based on mixed law and fact into a ground based on error of law.
Similarly in ONIFADE VS OLAYIWOLA (1990) 7 NWLR (PT 161) 13, it was held that, it should be abundantly clear that the line of demarcation between mixed law and fact on one hand and law on the other is very thin. It was for this reason that counsel have been advised that prudence demands that they should seek leave in most cases excepting where a ground is obviously that of law.
It is also trite law that grounds of appeal that are of facts or mixed law and facts requires leave of the lower court or this court before it can be argued in this court. In the absence of such leave being sought and obtained the grounds are incompetent and must be struck out. See OKWUAGBALA VS IKWUEME (2010) 19 NWLR (PT 1226) 54; GENERAL ELECTRIC COMPANY VS HARRY AYOADE AKANDE (2010) 18 NWLR (PT 1225) 596.
On the basis of the above cited authorities and same acting as a guide, I have examined the 9 grounds of appeal and their particulars as applicable. My view is that grounds 1, 2, 3, 4, 7, 8 and 9 are grounds of law stricto sensu and accordingly does not require the leave of this court to appeal on the aforementioned grounds by virtue of Section 241 (1) (6) of the 1999 Constitution as amended.
However, grounds 4, 5 and 6 questions the exercise of discretion by the Learned Trial Judge which is a ground of mixed law and fact and as such needs the leave of court before it can be filed and argued.
See FIRST FUEL LTD VS NNPC (2007) 2 NWLR (PT 1018) 276 where the Supreme Court held that a ground of appeal challenging the exercise of discretion by a Trial Judge is one of mixed law and fact. See also OKEKE VS OKEKE (2013) LPELR (22565) CA; OLORUNKUNLE VS ADIGUN (Supra).
The leave of the lower court or this court was not sought and obtained to file and argue the said grounds 4, 5 and 6 and this accordingly renders them incompetent and liable to be struck out. See ALHAJI ABUBAKAR VS ABUBAKAR WAZIRI (2008) LPELR (54) SC COKER VS UBA (1997) ALL NLR 34; COMEX LTD VS NIGERIA ARAB BANK LTD (1997) 3 NWLR (PT 496) 643.
Consequently grounds 4, 5 and 6 in the Appellants Notice of Appeal filed on 14-12-2015 are hereby struck out for failure to obtain leave of this court before filing same. Accordingly, issue 4 formulated from the said grounds of appeal is hereby struck out given that it cannot stand in vacuo and based on the trite law that issues for determination must derive from, or relate to a ground or grounds of appeal. See SPDC (NIG) LTD VS EDAMKUE (2009) LPELR (3048) SC ADAH VS ADAH (2001) 2 SCNJ 90; OWHONDA VS EKPECHI (2003) 9 SCNJ 1 at 20.
In the final result, the Respondents preliminary objection succeeds in part to the extent that grounds 4, 5 and 6 of the Notice of Appeal filed on 14-12-15 are struck out while grounds 1, 2, 3, 7, 8 and 9 are enough to sustain the Appeal.
On the main appeal, the Appellant formulated 7 issues from the 9 grounds of appeal which now excludes grounds 4,5 and 6 that have been struck out together with issue No. 4 in the Appellants brief of argument.
That leaves the Appellant with 6 issues formulated for determination as follows:-
(1) Whether the lower court was not in grave error and also acted in breach of Appellants right to fair hearing in its refusal to consider and pronounce on several diverse and fundamental issues validly raised before it by the Appellant. (Ground 8)
(2) Considering the clear provisions of applicable winding-up rules, whether the lower court did not act without jurisdiction in granting exparte orders if so granted and its subsequent failure to discharge same. (ground 1).
(3) Considering the facts and circumstances of the case before the lower court, whether the said court was not wrong in failing to treat the Suit before it as an abuse of court process. (Ground 2)
(4) Struck out by this court.
(5) Whether the lower court was correct to have considered the appropriateness or otherwise of the grant of mareva injunction in making a decision on Appellants motion of 23rd November, 2015. (Ground 3)
(6) Considering the contractual arbitration agreement in the facility agreement between the parties as presented by the Respondent, whether the lower court was not wrong in refusing Appellants alternative prayer for stay of proceedings pending arbitration on the ground that Appellant had already taken steps thereby waiving its right to such a relief. (Ground 7)
(7) In view of Respondents reaction to Appellants motion dated 23rd November 2015, whether the lower court was not in error in failing to treat same as unchallenged. (Ground 9)
In the Respondents brief of argument four issues were formulated for determination. To wit:-
(1) Whether the lower court was right both in law and on the facts presented to have refused to discharge its interm orders of 18th November, 205 in the Ruling delivered on 4th December 2015?
(2) Whether preservative reliefs sought via exparte application of the Respondent dated 9th November, 2015 can amount to Mareva injunction as the Learned Trial Judge called it in his Ruling of 4th December, 2015?
(3) Whether the Learned Trial Judge was wrong in upholding the interim orders via its Ruling of 4th December 2015.
(4) Whether the lower court was right to have dismissed Cross-appellants Notice of Preliminary objection without resolving issue of abuse raised therein and inspite of the existence of form 49 filed in FHC/L/CS/1219/2015 brought to its attention?
Issue I in the Respondents brief of argument encapsulates the Appellants issue 1, 2 and 3, while issue 2 is similar to the Appellants issue 5. Issue 3 in the said Respondents brief covers the Appellants issues 6 and 7.
The Respondents issue 4 relates to the Cross-appeal and as such will be dealt with when considering the cross-appeal.
In the light of the above, I will adopt the issue as raised in the Appellants brief of argument in the resolution of this appeal.
I will however take issues 1, 2 and 3 together as they relate to the Respondents issue I.
ISSUES 1, 2 and 3
Dwelling on Issue I, Learned Senior Counsel for the Appellant catalogued a number of issues he said were presented to the lower court but were not pronounced upon. The first is the abuse of court process involving Suit No FHC/L/CP/1569/2015 and FHC/L/CS/1219/2015. Secondly, the legal issue that it was improper for the lower court to have granted orders of injunction exparte against some persons who were not parties in the Suit before the lower court.
Thirdly, the impropriety of granting exparte orders against the Appellant in a winding-up petition without being put on notice, and fourthly, the legal issue as to the incompetence of Respondents counter-affidavit and written address.
It was then submitted that failure of a court to consider all issues validly placed before it is not only an abdication of responsibility but a breach of partys fundamental right to fair hearing. The following authorities were cited in support. UZUDA VS EBIGAH (2009) ALL FWLR (PT 493) 1224; OVUNWO VS WOKO (2011) 17 NWLR (PT 1277) 522; OKONJI VS NJOKAMMA.(1991) 7 NWLR (PT 202) 131 at 150.
He added that there was no legal justification for the lower court to have refused to pronounce on issues validly raised by the Appellant before it by way of written addresses and this renders the Ruling of the lower court perverse and should be set aside. Vide OVUNWO VS WOKO (Supra); UNICAL VS AKINTUNDE (2013) 3 NWLR (PT 1340) 1 at 26; OTAPO VS SUNMONU (1987) 2 NWLR (PT 58) 587; NIGERIA ARAB BANK LTD VS COMEX LTD (1999) 6 NWLR (PT 608) 648.
On the orders made against non parties to the petition, it was submitted that before any adjudicating body can competently adjudicate on matter, all necessary parties must be before it. Vide, TIJANI NENBE V YESUFU ADETUNJI (1997) 1 SC 1 at 8; GREEN VS GREEN (1997) 3 NWLR (PT 61) 80.
Learned Senior Counsel then pointed out that the exparte orders made by the lower court were made against OBA OTUDEKO, banks and other financial institutions who are not parties before the court but now being subjected to orders for which they were not heard. This he argues is in breach of their right to fair hearing and therefore a nullity because orders of court cannot be made against non-parties to a Suit.
He relied on the following cases: OLUMESAN VS OGUNDEPO (1996) 2 NWLR (PT 433) 628 at 645; IDAKWO VS EJIGA (2002) 13 NWLR (PT 683) 156; AYOADE VS SPRING BANK PLC (2013) LPELR 20763 (CA); BIYOL VS IBRAHIM (2006) 8 NWLR (PT 981) 1 and NNAEMEKA VS CHUKWUOGOR (2007) 5 NWLR (PT 1026) 60.
On issue 2, Learned Senior Counsel referred to the Exparte orders made by the lower court to state that they were made against the Appellant and some other persons without notice of the motion seeking the said orders being served on them. This he argues, is contrary to the provisions of Order 4 of the Companies Winding-up Rules Cap. C20 LFN 2010.
He added that the said provisions are clear and unambiguous and therefore calls for no further interpretation by direct application of same. He cited the case of EKPO VS CALABAR CENTRAL CO-OPERATIVE SOCIETY (2008) 6 NWLR (PT 1083) 362.
Learned Senior Counsel also referred to the case of PROVISIONAL LIQUIDATOR, TAPP INDUSTRY LTD VS TAPP INDUSTRY LTD (19950 5 NWLR (PT 393) 9 where the Supreme Court also cited with approval of the case of ANAKWENZE VS TAPP INDUSTRY LTD (1992) 7 NWLR (PT 252) 142 at 157 to interpret Rule 4 of the Winding-up Rules by stating that:-
This Rule appears to allow for Exparte applications being brought except where an order is being sought against any person in which case such a person will have to be put on notice of the motion.
It was further submitted that the provisions of Order 4 of the winding-up rule align with the legal principle which disallows the grant of injunction against advancement of Trade and to cripple businesses. Vide DAEWOO (NIG) LTD VS HAZON (NIG) LTD (1988) 7 NWLR (PT 558) 438 at 449 and JOSIEN HOLDINGS LTD VS LORNAMEADS LTD (1995) 1 NWLR (PT 371) 254.
Furthermore, it was contended that from the proceedings of 18-11-15 when the Exparte orders were granted and the matter adjourned to 24-12-15 it become clear that the very essence and jurisprudence of the grant of Exparte orders had been negated because Exparte orders have been held by the Supreme Court to last for only a very short period of time as held in OGBONNA VS NURTW (1990) 3 NWLR (PT 141) 696 at 703.
He concluded by urging this court to apply the provisions of order 4 of the winding-up Rules and the authorities cited in support to resolve the issue in the Appellants favour.
On Issue 3, Learned Senior Counsel analysed the principle and concept of abuse of court process and cited authorities in support to posit that the petition filed by the Respondent at the lower court on 9-11-2015 is abusive of the earlier petition filed by the same Respondent on 16-10-2015 as well as Suit No. FHC/L/CS/1219/2015 filed on 4-8-2015.
He further explained that the content of Suit No FHC/L/CP/1689/2015 filed on 9-11-2015 is the same word for word with the one earlier filed on 16-10-2015 in Suit No FHC/L/CP/1569/2015 and the same applies to the motion Exparte filed therewith and which motion Exparte was heard by JUSTICE TSOHO on 27-10-2015 but declined to grant same and ordered that the Respondent in the said motion be put on notice but instead of complying with the said order the Respondent herein filed Suit No FHC/L/CP/1689/2015 together with the same Exparte application which was heard and granted by JUSTICE YUNUSA on 18-11-2015.
This he argues constitutes an abuse of court process of the worst dimension.
Further referring to Suit No FHC/L/CS/1219/2015 earlier filed by three Plaintiffs of which the Appellant is one of them and the Respondent herein is the sole Defendant. It was pointed that averments in the 51 paragraph statement of defence are in tandem with the averments in the present petition, subject matter of this appeal which means that the facts to be decided in Suit No FHC/L/CS/1219/2015 are the same with the instant case given that the outcome of Suit No FHC/L/CS/1219/2015 can either decide that the Appellant is no longer indebted to the Respondent having paid the sum of N3.5 Billion or that despite the said payment, the Appellant still owes obligation of further payment to the Respondent.
On the state of the law that where two suits relate to the same subject matter, the latter filed Suit would be classified as abuse of court process, the following authorities were cited. OKORODUDU VS OKOROMADU (1977) 3 SC 21; DINGYADI VS INEC (NO 2) (2010) 18 NWLR (PT 1224) 154; OGOEJOFO VS OGOEJOFO (2006) 3 NWLR (PT 966) 205; VICTOR UMEH VS MAURICE IWU (2008) 8 NWLR (PT 1089) 225 ARUBO VS AIYELERU (1993) 3 NWLR (PT 280) 126 at 142.
It was also contended that the lower court acknowledged that abuse of process was canvassed in the Appellants written address in support of its motion to set-aside but it conveniently ignored or failed to consider same. This court was then urged to dismiss the petition before the lower court for being abuse of process.
Responding on the Appellants issue 1, 2, and 3 as above summarized, the Learned Senior Counsel for the Respondent in their own issue I noted first of all that the crux of the Appellants motion on notice dated 14-12-2015 which led to the instant appeal was the refusal of the lower court to discharge the interim orders it made on 18-11-2015.
He then referred to the three prayers sought in the said motion on notice which he argued that the lower court duly considered in its Ruling.
While acknowledging that a court is bound to pronounce on every issue submitted before it, Learned Senior Counsel contended that a court of law is also not allowed to delve into the substantive matter at the interlocutory stage. Vide. ADAMU VS A.G NASARAWA STATE (2007) 6 NWLR (PT 1031)?
He further submitted that any pronouncement on the issue complained of by the Appellant will amount to delving into substantive issue before the lower court while delivering Ruling on the interlocutory application and thus result in prejudging the main Suit before the court. He referred to the case of UNIVERSITY PRESS LTD VS I.K. MARTINS (NIG) LTD (2000) 4 NWLR (PT 654) 584 at 595; GROUP DANOMI VS VOLTIC (NIG) LTD (2008) 7 NWLR (PT 1087) 637; OGUNSHOLA VS USMAN (2001) 14 NWLR (PT 788) 636; NORTH-SOUTH PETROLEUM (NIG) LTD F.G.N (2002) 17 NWLR (PT 797) 639.
Learned Senior Counsel further emphasized that the issues the Appellant complained about that where not pronounced upon were issues formulated outside the reliefs sought before the lower court and the law is that such issues are deemed to be academic which the courts are reluctant to adjudicate upon as held in OLAIYA VS OYEDOKUN (2009) LPELR (4741) and ADELAJA VS ALADE (1999) 6 NWLR (PT 608) 544. He added that given the academic nature of the issues and the fact that considering them will amount to delving into the substantive matter, the issue of breach of fair hearing under Section 36 of the 1999 Constitution does not arise.
Responding on the Appellants issue 2, the Learned Counsel for the Respondent referred to Section 411 of the Companies and Allied Matters Act and Order 183 of Companies Winding-up Rules 2001 as well as Order 26 Rule 11 of the Federal High Court Rules 2009 to justify the interim order made by the lower court. Moreso, that no other party affected by the said interim order apart from the Appellant applied for a discharge of same.
It was further contended that going by the provision of Section 411 of CAMA and Order 183 aforementioned, Exparte orders can be made under the winding-up Rules 2001 and on the authority of PROVISIONAL LIQUIDATOR TAPP INDUSTIRES VS TAPP INDUSTIRES LTD Supra.
On the issue of abuse of process as contended by the Appellant, it was submitted by Learned Senior Counsel that there was no such abuse of process by the Respondent and that the case of AGWUASIM VS OJICHIE cited Supra by the Appellant should be discountenanced because non of the instances stated therein was breached by the Respondent.
It was further submitted that the continuous reference to Suit No FHC/L/CP/1569/2015 by the Appellant amounts to reviving a dead and buried issue because the said Suit was discontinued vide a Notice of discontinuance filed on 9-11-2015 as shown at pages 371 to 372 of the record. On the effect of a Notice of discontinuance he relied on the case of OGUNKUNLE VS ETERNAL SACRED ORDER, C&S (2011) 12 NWLR (PT 727) 359.
He added that at no point did the Respondent maintain two similar Suits against the Appellant having discontinued Suit No FHC/L/CP/1569/2015 before the interim orders subject of this appeal was granted. Furthermore, that there is no abuse of process as between Suit No FHC/L/1689/2015 because the first was claims via writ of summons while the latter was a petition for winding-up proceedings. Moreso that the ingredients of an abuse of process which are, cause of action, subject matter and same parties are not the same in the Suits referred to.
This court was then urged to resolve issues 1, 2, 3 against the Appellant.
The Appellants reply to the Respondents issue I is contained in pages 7 to 15 of the Appellants brief of argument and having perused same, shall be addressed in this judgment as the need arises.
Given the nature of this appeal, I will start with the emphasis that the said appeal is against the Ruling of the lower court delivered on 4-12-2015 as shown in the Notice of Appeal filed on 14-12-2015 and also confirmed in the Appellants brief of argument wherein paragraph 1.1 of page I the introduction read thus:-
This brief of argument is presented in respect of the Notice of Appeal dated the 14th day of December 2015 against the Ruling of the Federal High Court (lower court) CORAM YUNUSA J. delivered on the 4th day of December, 2015.
This observation is necessary in order to put the records straight.
On the first issue, which is the failure of the lower court to pronounce on some issues raised by the Appellant.
It is the duty of the court, whether of first instance or an appellate court to consider all the issues that have been joined by the parties and raised before it. This principle of adjudication is of great importance in the administration of justice given that issues canvassed and argued in court must be given judicial consideration and pronouncement in order to avoid allegation of lack of fair hearing or miscarriage of justice. See MARINE MANAGEMENT ASSOCIATES INC. VS NIGERIAN MARITIME AUTHORITY (2012)3 NWLR (PT 1333) 506; NATIONAL INSURANCE COMMISSION VS AMINU (2012)8 NWLR (PT 1302)330; AJAGB E VS OYEKOLA (2013) LPELR (19840) CAL OVUNWO VS WOKO (2011) 17 NWLR (PT 1277) 522; I.G.P. VS UBAN (2014) LPELR (23968).
In the instant case, the lower court noted in its Ruling at page 7 of the Record that the learned Senior Counsel for the Appellant under the sub heads of Abuse of process; Impropriety of granting Exparte orders against persons who are not parties to the petition; Impropriety of granting Exparte, orders in Petition for winding-up; Grant of Exparte Orders before order for leave to issue process; stay of proceedings and reference to arbitration. The Respondents Counsel was also at page 12 noted to have responded accordingly. I however observe that subsequently in the said Ruling, except for the pronouncements on the propriety of the grant of interim orders as well as whether an order of stay should be made pending arbitration, the other issues such as abuse of court process and Exparte orders made against persons who are not parties to the Petition were not considered in the said Ruling.
As earlier stated in this judgment, there is every necessity for a tribunal to make findings and pronounce on material and fundamental issues canvassed before it by the parties because failure to do so may result in a miscarriage of justice. See BRAWAL SHIPPING (NIG) LTD VS F.I. ONWADIKE CO. LTD (2000) 6 SCNJ 508 AT 522 where the Apex court held thus:-
The Supreme Court demands of an admonishes the lower courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. It has made this clear in its observation in several cases. Failure to do so may lead to miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial. Consequently there could be avoidable delay since it may be necessary to send case back to the resolved.
See also ORJI VS PDP (2009) 14 NWLR (PT 11610 310; SPRING BANK PLC VS DOKKIN VENTUREES (NIG) LTD (2012) LPELR (PT 79830 CA.
Now, on the said issue of impropriety of granting Exparte order against persons who are not party to the petition. For learned Senior Counsel for the Appellant, the act of the lower court in making Exparte orders against OBA OTUDEKO and some Banks and financial institutions who are not parties to the petition before it is a breach of their right to fair hearing and therefore a nullity.
It is the law that a court is not to make an order that will affect the interest of a non party to a suit given that it may infringe on the right to fair hearing. See OBIOR VS NNAMUA (2014) LPELR (23041) CA. I must add however that it depends on the nature of the order so made and whether such order is adverse to the interest of such party not joined. But more importantly, it seems to me that even in a situation where an order is made by a court and it affects the interest of a non party to a suit, the proper person to complain is the said party whose interest has been adversely affected. It is therefore not open to everyone to complain against such order. The complaint, by way of application to the court that made the order must come from the affected party not joined in the suit.
An analogous situation arose in the case of CHIME VS CHIME (2001) LPELR (849) SC wherein the Supreme Court upheld the decision of this court that for party to suit to apply for the proceedings to be nullified by reason of failure of service, it must sufficiently be established that he or she has not been served in respect of the proceedings and that the order made therein affects him. It is therefore not open to every party to a proceedings to make such an officious complaint, because if such complaints is sustainable it will yield startling results by giving an aggrieved party to the suit a second bite at the cherry.
In the instant case, it is therefore out of place for the Appellant to complain on behalf of the aforementioned OBA OTUDEKO, the banks and other financial institutions who have the freedom to complain in their own right if they feel aggrieved by the order of the lower court made on 18-11-2015.
On issue 2 which is the epicenter of this appeal, the Appellants complaint is that the interim orders made Exparte by the lower court on the 18-11-2015 against the Appellant ought to be by way of motion on notice given the clear provisions of Order 4 of the Companies winding-up Rules 2010.
For the Respondent, the contention is that by the provisions of Section 411 of the companies and Allied Matters Act (CAMA) and Order 183 of the companies winding-up Rules 2010 Exparte Orders can be made as was done in the instant case by the lower court.
Order 4 of the Companies Winding-up Rules 2010 provides thus:-
Every application in court other than a Petition shall be made by motion, notice of which shall be served on every person against whom an order is sought not less than Five clear days before the day named in the notice of hearing the motion.
To my mind, the wordings of the order as set out above are very clear and unambiguous with regard to the purport and aim it is intended to achieve.
The law is trite that where the words of a statute are free from ambiguity, same will be given their ordinary grammatical meaning without the court resorting to any internal or external aid. It is the duty of the court to interpret the words of the law maker as used and apply same accordingly. See FIDELITY BANK PLC VS MONYE (2012) 10 NWLR (PT 1307) 1 at 31; A.G. NASARAWA STATE VS A.G. PLATEAU STATE (2012)10 NWLR (PT 1309) 419; ABUBAKAR VS NASAMU (NO. 2) (2012) 17 NWLR (PT 1330) 523.
In the said Order 4, the word shall was used twice which in my humble view implies mandatoriness, firstly that any application being made by a party in matters relating to a winding-up proceeding shall be by a way of a motion on notice, secondly, that the said motion on notice shall be served on every person against whom an order is being sought, not later than five days before the hearing of the said motion on notice.
Given the seriousness attributable to a petition for winding-up a corporate body it seems to me that Order 4 of the Companies Winding-up Rules 2010 does not give room for permissiveness to a party seeking to bring any application, moreso like the one under consideration wherein the assets of a going concern is sought to be frozen.
In NWANKWO VS YAR ADUA (2010)12 NWLR (PT 1209) 518, the Supreme Court was of the stance that the word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate and it is not permissive.
The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation. See also AMADI VS N.N.P.C. (2000) 10 NWLR (PT 674) 76; MBANG VS GLARDIAN NEWSPAPERS LTD (2010) LPELR (4479) CA.
Learned senior Counsel for the Respondent had referred to Section 411 of CAMA and Order 183 of the Companies Winding-up Rules 2010 as giving room for Exparte applications or Orders of this nature. The said section 411(i) reads thus:-
On hearing a winding-up petition the court may It, or adjourn the hearing conditionally or unconditionally, or make any interim order, or any other that it thinks fit, but the court shall not refuse to make a winding-up order on the ground only that the assets of the company have been mortgaged to an amount equal to or in excess of those assets, or that the company has no assets.
Order 183 of the Companies Winding-up Rules provides:-
In any proceedings in or before the court where no provision is made by these Rules, the courts (Civil Procedure) Rules shall apply.
Dealing first with Section 411(1) as above set out the provision to my mind does not bear any burden of comprehension. It simply provides a guide as to what the court before which a petition for winding-up is brought should do depending on the circumstance and issues presented to it by the parties. Practice and procedure in our system of administration of justice provides for methods in which applications are to be made to a court by a party and all these methods are embodied in what we refer to as Rules of Court which guides both the court and the parties in litigation on the dos and donts with the aim of a smooth, effective and efficient administration of justice.
In this regard, I see no conflict or confusion in the interpretation of section 411(1) of the Companies and Allied Matters Act and Order 4 of the Companies Winding-up Rules. While Section 411(1) provides a guide on what the court should do in a petition for winding-up proceedings which definitely must be based on applications before it. Order 4 of the winding-up Rules on the other hand provides for the manner in which any application other than a petition shall be made to the court hearing a petition for winding-up and the wordings therein does not give room for half measures. It therefore behoves any party seeking any relief from the court in a petition for winding-up to strictly comply with the said provisions. In the instant case, the Respondents application filed on 9-11-15 was made exparte and without notice of same being served on the Appellant. This no doubt constitutes a breach of the provisions of order 4 of the Companies winding-up Rules 2010.
As regards Order 183 of the said Winding-up Rules referred to by Learned Senior Counsel for the Respondent, I do not with due respect see its relevance here given the clear provision of same to the effect that where no provision is made by the Companies Winding-up Rules, the courts (Civil Procedure) Rules shall apply. In the case under consideration the Companies Winding-up Rules 2010 contains a clear provision on the method of making applications to the court hearing a petition for winding-up by stating in unequivocal terms that:-
Every application in court other than a petition shall be made by motion, notice of which shall be served on every person against whom the order is sought, not less than five clear days before the day named in the notice of hearing of the motion.
In the light of the above clear cut provision of Order 4 of the Companies winding-up Rules, there is definitely no basis to find recourse to the Federal High Court (Civil Procedure) Rules given the fact that no lacuna was created as to the method of making applications to the court with specific reference to winding-up proceedings.
Having addressed this issue of the propriety or possibility of Exparte applications given the provisions of the relevant Rules aforementioned. It will also be expedient if not germane, to explore the case laws as relating to Exparte applications. In the case of LEEDO PRESIDENTIAL MOTEL LTD VS BANK OF THE NORTH LTD (1998) 7 SCNJ 328 the Supreme expounded the principle that an application Exparte could be made in two main circumstances. To wit:-
(1) When from the nature of the application, the interest of the adverse party will not be affected.
(2) When time is the essence of the application and in these two situations a court will be right in exercising its discretion in granting a motion Exparte.
But where the motion brought before the court will affect the interest of the adverse party, a court of law should insist and order that the adverse party be put on notice.
It was further held therein that, justice demands that both sides are heard or given the opportunity to be heard before an order affecting the rights and obligation of one of them is made. This, it is said accords with the provisions of the constitution and Natural justice also demands it.
In the instant case, the said order Exparte made on 18/11/15 by the lower court and subsequently sought to be set aside by the Appellant reads thus:-
a. That an Order of Interim injunction is granted restraining the Respondent, its Chairman, Dr. OBA OTUDEKO its Directors, Staff, Management, employees, Officers, Agents, Privies or any other person or group of persons whatsoever under the Respondents authority or any other authority (howsoever derived or sourced) from operating, withdrawing from or otherwise tampering with the Respondents funds under whatsoever name or guise in any Bank or financial institution within Nigeria, pending the hearing and final determination of the application for the appointment of a PROVISIONAL LIQUIDATOR in furtherance of the Petition herein.
b. That a consequential Order directing and/or compelling the affected/concerned banks or financial institutions harbouring the Respondents account(s) to furnish the Petitioner/Applicant or its firm of Solicitors, the details of the credit outstanding in the Respondents account within 7 (seven) days of receipt of the enabling ORDER of this Court as certified and enrolled is granted.
c. That an Order of Interim Injunction is granted restraining the Respondent, its agents, servants and/or privies from tampering with, alienating, transferring or otherwise dissipating, appropriating the Respondents Fixed and Movable Assets, property(ies) coated at 6B, Mekunwen Road, Off Oyinkan Abayomi Drive, Ikoyi, Lagos or at any part of Nigeria, machinery, tools of trade or other Assets howsoever described and called pending the hearing and final determination of the application for the appointment of a PROVISIONAL LIQUIDATOR in furtherance of the Petition as herein presented.
d. That leave is granted to the Petitioner/Applicant to author the mandatory statutory and procedural notices as may be deemed fit in the official gazette and any Weekday Edition of Guardian Newspaper and/or Thisday Newspaper which Newspapers are published and circulated in Nigeria and more particularly within the registered office and principal place of business of the Respondent herein.
e. That leave is granted to the Petitioner/Applicant to issue the Originating Processes herein and subsequently effect the service of the Petition filed in this suit alongside the Motion on Notice, the enrolled Order of Court and other Originating Processes in this suit on the Respondent at its office situate at 6B, Mekunwen Road, Off Oyinkan Abayomi Drive, Ikoyi, Lagos.
f. That the matter is adjourned to the 30th day of November, 2015 for report of compliance.
ISSUED AT LAGOS, Under the Seal of the Court and the hand of the Presiding Judge this 27th day of October, 2015.
The Learned trial judge in a Ruling delivered on 4-12-2015 however refused to set aside the said interim order Exparte but opted to vary only order No. (1) and No.4 out of the six orders made therein.
To my mind, the grant of the interim orders of injunction by the lower court, particularly Orders No (1) and No (3) (whether varied or not) without any notice to the Appellant thereby affording it the opportunity to be heard on a matter that seeks to paralyse and immobilise a functional and ongoing corporate organization is an exercise of discretion too extreme and injudicious to be allowed to subsist given the negative socioeconomic impact it will have not only on the Appellant but also on its employees and society at large. Such a scenario no doubt demands that application on notice must be the only plausible option to enable the Appellant react and present its own side of the story before the court will decide which way the pendulum of discretion will swing. See LEEDO PRESIDENTIAL MOTEL LTD VS BANK OF THE NORTH LTD (supra).
In other words, going by the fact that the interest of the Appellant will be seriously affected if the interim orders are allowed to stand, the justice of the case demands that both sides be heard or at least given the opportunity to be heard before such an order with serious financial and economic implication can be granted. In the light of the above reasoning, this issue is resolved in favour of the Appellant. With the Resolution of the said issue a further discourse on issues 5, 6 and 7 will amount to an unnecessary academic exercise having become moot.
Issue 3 was raised but not addressed by the lower court and being a fundamental issue associated with the various Suits by the parties, it will best be considered first by the lower court hearing the Petition in Suit No FHC/L/CP/1689/2015.
On the whole, this appeal succeeds and it is accordingly allowed.
The Ruling of the Federal High Court delivered by M.N. YUNUSA J. on the 4th day of December 2015 is hereby set aside.
Consequently, it is ordered that the interim order of injunction granted by the lower court on the 18-11-2015 be and is hereby set aside.
It is also ordered that the Petition in Suit No FHC/L/CP/1689/2015 be reassigned to another judge for necessary action.
Parties to bear their costs.
The Notice of Cross-appeal is dated the 9th day of December 2015. The brief of argument in support of same is dated and filed on 22-1-2016 and deemed properly filed on 27-1-2016. The Cross appellants reply brief was filed on 17-2-2016 but deemed properly filed on 22-2-2016.
The Cross respondents brief of argument is dated and filed on 1-2-2016. Both parties adopted their respective briefs of argument at the hearing of this appeal on 22-2-2016. The cross appellant brief was not filed separately but embedded in the Respondents brief of argument and not in a distinct manner but inter-mixed with the said Respondents brief to the extent that the sole issue for determination in the cross appeal was listed as issue No. 4 among the issues for determination raised in the Respondents brief.
So it took a careful picking by this court to identify the said issue No.4 as connected with the cross appeal. This to my mind is not a tidy way to present a cross appeal or issues for determination derived there from. This court should not be burdened with the extra duty of picking and choosing which is what in a brief of argument.
Nonetheless, I have identified issue 4 in the Respondent/Cross appellants brief as forming the sole issue raised for determination in the cross-appeal, same having been shown to have been distilled from grounds 1 and 2 of the Notice of Cross-appeal. It reads thus:-
4. Whether the lower court was right to have dismissed cross appellants Notice of Preliminary Objection without resolving issue of abuse raised therein and inspite of the existence of Form 49 filed in FHC/L/CS/1219/2015 brought to its attention.
In the reply to the argument in respect of the cross appeal, the cross respondent formulated a sole issue for determination as follows:-
Whether the lower court was correct to have struck out Respondents motion dated 26th November, 2015.
The sole issue raised by the parties in their briefs of argument are in tandem and such will be considered accordingly.
It is also observed that the cross appellants Notice of cross appeal contains three grounds of appeal. The sole issue for determination was formulated from grounds 1 and 2 and none from grounds 3. The said ground 3 of the Notice of Cross appeal is therefore deemed abandoned. See EHOLOR VS OSAYANDE (1992)6 NWLR (PT 249) 524; IDAKWO VS IBRAHIM (2011) LPELR (8336) CA; EMESPO J. CONTINENTAL LTD VS CORONA SHIFA-RTSGESELLSCHAFT; GMBH & CO. (2006)11 NWLR (PT 991) 365; OJO VS KAMALU (2005)18 NWLR (PT 955)523; ALUFOHAI VS STATE (2012 LPELR (7917) CA.
On the issue raised for determination by the cross appellant, learned Senior Counsel submitted that the grouse with the Ruling of the lower court is hinged on the fact that the Respondents application was struck out without considering or giving any weight to the certified true copy of the form 49 which was earlier filed before IDRIS J. in Suit No FHC/L/Cs/1219/2015 and was brought to the attention of the lower court, CORAM YUNUSA J to establish that there was an abuse of court process and as such to strike out or stay proceedings of the Cross-respondents application dated 23-11-2015 pending the hearing and determination of the committal proceedings in Suit No FHC/L/CS/1219/2015.
It was further contended that the failure by a court to consider all issues before it leads to a miscarriage of justice. Vide MOGAJI VS ODOFIN (1978) 4 SC 91; ILOEGBUNAM VS OBIORA (2102) 4 NWLR (PT 1291) 405.
He added that the Learned Trial Judge misconstrued the intent of the Appellants application and ruled that he could not make pronouncement on a matter pending before his Learned brother M.B. IDRIS J. furthermore, that even if the Learned Trial Judge was minded not to strike out the Appellants application dated 23-11-2015 in the spirit of non-interference, he ought to have stayed further proceedings of the hearing of same given that the issue of the committal proceedings in Suit No FHC/L/CS/1219/2015 has been brought to his notice.
It was further submitted that the filing of the Appellants application dated 23-11-2015 and the subsequent striking out of the Respondents application complaining of the propriety of the Appellants application amount to a grave miscarriage of justice as the process employed by the Appellant to set aside the preservative orders amounted to an abuse of court process.
In the Appellant/Cross-respondents reply it was submitted by Learned Seniors Counsel that the lower court rightly struck out the Respondents application for the reason that it was premised on proceedings before another court. It was also contended that there is no ground of appeal against the decision of the lower court striking out the said application and as such the said decision remains subsisting. The following cases were cited in support. AKERE VS GOVERNOR OF OYO STATE (2012) 12 NWLR (PT 1314) 240; SCC (NIG) LTD VS ANYA (2012) 9 NWLR (PT 1305) 213 at 222.
He added that the Respondent did not challenge the ratio of the said decision of the lower court and this makes his appeal evidently academic.
Learned Senior Counsel also pointed out that in addition to the Respondents application which is the subject of the cross-appeal, the said Respondent also filed a counter-affidavit and a written address in support seeking for the dismissal of the same Appellants motion dated 23-11-2015 with the aim of achieving the same result. This he says amounts to an abuse of court process. He relied on the case of UBA VS MODE (NIG) LTD (2000) 12 NWLR (PT 686) 16 at 22-23 where a party filed two motions to achieve the same result and this court per TOBI JCA (as he then was) held that it was an abuse of court process. See also MANSON VS HALLIBURTON (2007) 2 NWLR (PT 1018) 211.
The Cross-appellants reply is contained in pages 17 to 22 of the Respondent/Cross-appellants reply brief of argument filed on 17-2-2016 and deemed properly filed on 22-2-2016 and the arguments therein have been taken note of.
I will start by addressing the contention by Learned Senior Counsel for the Appellant/Cross-respondent that the act of the Respondent/Cross-appellant in filing a counter-affidavit and a written address to oppose the Appellants application dated 23-11-2015 and at the same time filing a motion to dismiss same amounts to an abuse of court process on the part of the Cross-appellant.
This to my mind cannot be correct given the normal trend of reaction by a Respondent who is served a motion on notice and intends to oppose it.
He will of necessity file a counter-affidavit and a written address where applicable to justify the fact that he is opposing the prayers sought in the applicants motion.
This does not however stop him from filing another application by way of preliminary objection to have the same motion struck out for reason of one defect or the other. It is akin to a Defendant filing a statement of defence and also filing an application to have the Suit dismissed or struck out for being incompetent and at the appellate level a Respondent served with a notice of appeal and brief of argument has the freedom to file a Respondents brief of argument and at the same time file a notice of preliminary objection to dismiss the same appeal for whatever grounds he deems justifiable.
The case of UBA VS MODE (NIG) LTD and MANSON VS HALL IBURTON cited Supra by the Cross-respondents Counsel are quite distinguishable in the sense that they relate to two separate motions seeking the same reliefs as opposed to the instant case where the Respondent filed a counter-affidavit in response to an application, and filed a motion seeking to strike out the application for being defective or incompetent.
On the substance of this cross-appeal, the Learned Trial Judge in a ruling delivered on 4-12-2015 had in considering the Cross-appellants application challenging the competence of the Cross-respondent motion dated 23-11-2015 held at pages 26 to 27 of the additional
Record as follows:-
It is important to point out that the said Suit No FHC/L/CS/1219/15 was not filed in this court and the said form 49 was also not filed before the court. The issues are not properly placed before the court. The duty of the court is to hear matters on merit. The said motion is an incompetent process and is hereby struck out.
As much as I agree with the Learned Senior Counsel for the Cross-appellant that the said Ruling was very sketchy vis-à-vis the affidavit evidence and written address presented before the court. It still remains the decision of the court which is no doubt appealable. But given that the issue in contention is the Cross-respondents motion dated 23-11-2015 which issue has been fully addressed in the main appeal and prayer one therein granted by this court after setting aside the ruling of the lower court. A further discourse on the efficacy of same will no doubt amount to an exercise in futility because it has become a moot point.
In the circumstance, this Cross-appeal is hereby struck out.
Parties to bear their costs.
SIDI DAUDA BAGE: My Learned brother S.C. Oseji JCA, availed me a copy of the judgment just delivered in draft form. I adopt the reasonings and the conclusion reached in the lead judgment as mine. The cross-appeal is also struck out by me.
I abide by the order as to costs contained in the lead judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEIUMO, JCA: I had the privilege of reading in draft the leading judgment of my Lord OSEJI, JCA just delivered. In the aforesaid judgment his lordship has adequately dealt with all the issues submitted for the determination of the appeal and the cross-appeal. I just have a few words of mine to add.
My Lords, we are faced here with an issue bothering on the applicability or otherwise of Rules with respect to the special proceedings in court on the one hand which is rarely applied and one which relates to general proceedings in court, which litigants have fallen back on, albeit wrongly. I am not unaware that legal practitioners have before now, in companies winding-up proceedings, formed the habit of making applications therein based on the provision of the Federal High Court (Civil Procedures) Rules. I believe this omission, if I may deem it as such, is due to the fact that petition for the winding-up of companies pursuant to the Companies and Allied Matters Act, are filed at the Federal High Court. I must however say that it is no justification or an acceptable excuse that because the practice has been adopted up until now, the provision of the law should be jettisoned.
Companies winding-up proceedings, just like Election proceedings, are sui generis. It is largely governed by the provision of the law made specifically to regulate such proceedings. In this respect, Rule 2 of the Companies Winding-Up Rules, 2001 provides that the Rules shall apply to all proceedings in every winding up under the Companies and Allied Matters Act. Contrary to the argument of Respondent, it is only the provisions of the Companies Winding Up Rules and not that of the Federal High Court (Civil) Procedures) Rules that must be reckoned with, except where it is permitted under Rule 183 of the Companies Winding-Up Rules, which provides that in any proceeding before the Federal High Court, where no provision is made by the Rules, recourse shall be made to the Civil Procedure Rules of the Court. While the provision of the Companies Winding-Up Rules is specific to proceedings relating to the winding-up of a company, the Federal High Court (Civil Procedure) Rules contain general provisions on ordinary civil causes and matters. Therefore, it can be safely concluded that the Rules with respect to specific provision on winding-up proceedings will be invoked thereon. See KRAUS THOMPSON ORG. v NIPSS  17 NWLR (PT 901) 44; FBN PLC & ORS v MAIWADA & ORS (2012) LPELR - 9713 (SC).
To this extent, Rule 4 of the Companies Winding-Up Rules provides that:
"Every application in court other than a petition shall be by motion, notice of which shall be served on every person against whom an order is sought not less than five clear days before the day named in the notice for hearing of the motion."
It is beyond rhetoric that Rules of Court are made to be obeyed; non-compliance of which cannot be overlooked and treated as irregularity, especially with respect to the provision of Rule 4 reproduced above. See KALU v ODILI (1992) LPELR - 1653 (SC).
It is apparent from the above provision of the court that, save for petition, any application filed before the lower court in proceedings for the winding-up of a company shall be by motion on notice to the Respondent and served on the Respondent not less than five (5) days before the hearing of the motion by court. This provision of the Rules is clear, unequivocal and bereft of any ambiguity. It affords no discretion on the part of the Applicant. Where, as in the instant case, the provision of Rule 4 was not complied with, the application so filed is not only incompetent; even the court also lacks the requisite.
Chief Wole Olanipekun SAN with Oluyele Delano SAN, Ade Adedeji SAN, Olabode Olanipekun, Bolarinwa Awujola; faith Adarighofua, Michael Akinleye, Tolu Adetomiwa and Omosomi Omamegbe (Miss) for the Appellant.
A.B. Ogunba San with G.C Duru, O.O. Kushimo; A.O. Ajiboye and O.O. Philips for the Respondent/Cross-appellant.