- CL|Winding Up of A Company|Ex Parte Order
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 (