The Court of Appeal sitting in Lagos has dismissed an application filed by Ecobank Nigeria Limited seeking to wind-up Honeywell Flour Mills Plc.
The appellate court in a judgment delivered by Justice Biobele Georgewill and unanimously agreed to by Justices Tom Yakubu and Gabriel Kolawole, held that the appeal filed by Honeywell through its counsel, Mr. Bode Olanipekun (SAN) had merit.
“Suit No: FHC/L/CP/1689/2015 Ecobank Nigeria Ltd v Honeywell Flour Mills Plc is hereby dismissed for constituting an abuse of court process. There shall be cost of N200,000 against the respondent in favour of the appellant,” the court held.
Honeywell Flour Mills Plc; Anchorage Leisures Limited and Siloam Global Limited had sued Ecobank in suit No: FHC/L/CS/1219/2015, asking the court to declare that they were no longer indebted to Ecobank, having paid an agreed sum of N3.5billion as the full and final payment of their debt to the bank.
The court, however, made an order that all parties should maintain status quo in the matter.
During the pendency of the suit, Ecobank proceeded to file a winding-up petition against Honeywell on October 16, 2015 in Suit No: FHC/L/CP/1569/2015 along with a motion ex-parte, seeking five orders against Honeywell. But Justice T. Tsoho of the Federal High Court, Lagos, refused the application, adjourned the case and directed the applicant to put Honeywell on notice.
Instead of putting Honeywell on notice as directed by the court, Ecobank on November 9, 2015 filed a subsequent winding-up petition against Honeywell before Justice M.N Yunusa in Suit No: FHC/L/CP/1689/2015 over the same subject matter as the earlier petition.
Justice Yunusa granted Ecobank’s winding-up petition.
Following the court’s decision, Honeywell filed a Motion on Notice on November 24, 2015 praying the court to discharge the ex-parte orders and to dismiss the second petition on the grounds of abuse of court process, amongst others.
Justice Yunusa in his ruling delivered on December 4, 2015 declined Honeywell’s application by refusing to vacate all the ex-parte orders and also refused to dismiss Ecobank’s petition.
Dissatisfied with the court’s decision Honeywell through Olanipekun filed a Notice of Appeal on December 14, 2015, asking the appellate court to set aside Justice Yunusa’s ruling and dismiss Ecobank’s petition for being an abuse of the process of court.
Honeywell’s arguments
Olanipekun had submitted before the appellate court that in law, an abuse of court process occurs where a party uses the court mala-fide.
The Senior Advocate also submitted that it was clear that the petition filed by Ecobank on November 9, 2015 is abusive of the earlier petition it had filed on October 16, 2015 and contended that both petitions filed by Ecobank against Honeywell were in respect of the same subject matter and same issues arising from the alleged indebtedness of Honeywell to Ecobank.
Olanipekun, therefore, urged the court to hold that the subsequent petition filed on November 9, 2015 over the same matter clearly constituted an abuse of court process, since a determination of any of the earlier suits filed over the same subject matter would finally determine the rights and liabilities of the parties.
He urged the court to dismiss Ecobank’s second winding-up petition in order to stop the continued abuse of the process of court.
Ecobank’s arguments
In its response, Ecobank through its counsel, Kunle Ogunba (SAN), argued that the petition before the court was not an abuse of the court process on the ground that Suit No: FHC/L/CS/1219/2015 was not instituted by Ecobank and that neither did it maintain any counter-claim in the suit to warrant the argument by Honeywell that the present petition constitutes an abuse of court process.
Ecobank had submitted that the suits were not instituted over the same subject matter contrary to the contention of Honeywell.
It argued that while Suit No: FHC/L/CS/1219/2015 is patently predicated on the subject matter of July 22, 2013 agreement by three defaulters, the instant petition is to wind-up Honeywell for its inability to pay up its debt.
Ogunba contended that the subject matter of both suits are not the same and urged the court to discountenance Honeywell’s argument to that effect and dismiss the appeal for lacking in merit.
Honeywell’s reply
But Honeywell, through his counsel, urged the court to hold that since Ecobank has not denied filing two petitions simultaneously over the same subject-matter, the situation of abuse of court process was worsened by the fact that Ecobank had to file a notice of discontinuance in the case where its prayers for ex-parte orders were refused by one judge, so as to file a case in another court on the same day before another judge in order to have its ways to get the court grant the same Ex-parte orders earlier refused by the first judge.
The verdict
Justice Georgewill in his lead judgment held: “In law an allegation of abuse of court process is a very serious allegation, which must be established by the person so alleging with sufficient materials before the court. The sufficient material need not be an affidavit if on the face of the processes filed it is obvious that the party by his own showing is guilty of abusing the process of the court.
“However, where such facts are not apparent on the face of the process filed, then it is incumbent on the party so alleging to place before the court, mostly by way of affidavit evidence, the material sufficient enough to warrant the finding of an abuse of court process in his favour against the other party, failing which such an allegation is taken as unproved and an objection must fail.
“On the undisputed established facts in this appeal, therefore, what better words can be use to describe the slippery and very obvious forum shopping ways of the respondent (Ecobank) to file one suit after another without any legal justification, as none has been shown in this appeal, over the same subject-matter and between the same parties merely on account of its perceived pressures emanating from the presence of the Central Bank Examiners in the respondent’s bank to check its final books?
“In law, a subsequent suit such as Suit No: FHC/L/CP/1689/2015: Ecobank Nigeria Ltd v Honeywell Flour Mills Plc premised on such faulty foundation and merely intended to, and had indeed achieved, the wasting of the time and resources of the appellant (Honeywell), is one which is nothing but a process in want of bona fide and thus constitutes an abuse of the process of court, which to all intents and purpose was not meant to serve any useful purpose and was indeed dead on arrival.
“I, therefore, unhesitantly so pronounce it dead on arrival, a pronouncement which the court below had shied away from making but which it ought to have made.
“In the circumstances, therefore, the extant sole issue is hereby resolved in favour of the appellant against the respondent and I hold firmly that Suit No: FHC/L/CP/1689/2015 Ecobank Nigeria Ltd v Honeywell Flour Mills Plc filed on November 9, 2015 constitute an abuse of the processes of the court.
“In the light of my findings above, I hold that this appeal has merit and ought to be allowed on sole issue of abuse of court process as remitted to this court for determination by the Supreme Court in its judgment. Consequently, I hereby so allow it.
“In the result, that part of the ruling the Federal High Court, Lagos Division, Coram: M.N. Yunusa J, in Suit No: FHC/L/CP/1689/2015: Ecobank Nigeria Ltd v Honeywell Flour Mills Plc delivered 4/12/2015, in which court below declined to grant the appellant’s application seeking to dismiss the respondent’s petition on ground of abuse of court process is hereby set aside.”
