Honeywell Flour Mills Plc V Ecobank Nigeria Ltd (2018)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

FACTS – The respondent on 16th of October 2015, filed a Winding Up petition against the appellant before the Federal High Court, Lagos (the trial Court) in Suit No.FHC/L /1569/15 along with a Motion Exparte.

On the 27th of October, 2015 and in a well considered ruling, the trial Court refused to grant the orders, instead the trial judge directed the respondent to put the appellant on notice and adjourned the proceeding to a later date.

The learned counsel for the appellant stated that as a result of unsuccessful effort to obtain the Exparte orders against the appellant the petitioner re presented the application before Justice J. Tsoho who as well as refused to grant the Exparte orders and presented them to the Registry of the same as designated as NO.FHC/L/CP/1689/2015. On the 18th November, 2015, Justice Yunusa of the same Court granted the Exparte orders which had earlier been expressly declined by Justice Tsoho which are found at pages 39-49 of the Record, while the one granted by Justice Yunusa J., are found at pages 674-678 of the Record.

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The facts leading to the institution of this appeal is that, in satisfaction of the liabilities arising out of bank/customers relationship between the appellant and the respondent. Both parties agreed that the sum of N3.5 Billion be paid as full and final liquidation of the said indebtedness. After the payment of the sum was completed in January, 2014, the respondent still communicated to the appellant that it was indebted to it, despite the payment of N3.5 Billion, advancing various reasons.

In reaction, the appellant commenced Dispute resolution Proceedings before the Bankers’ Committee which comprises, the CBN, and a representation from both parties. The Committee reached a decision in favour of the appellant to the effect that the agreement to pay the sum N3.5 Billion in full and final liquidation of the appellant, was valid and that those payments discharged those obligations. It was stated that it was after the respondent’s insistence that the appellant was still indebted to it and the respondent’s refusal to abide by the Bankers Committee’s decision and the refusal to release all securities used as a collaboration that led to the commencement of Suit No.FHC/L/1219/15

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for the determination that the appellant was no longer indebted to the respondent, among other Prayers.

The learned appellant’s stated further that the respondent filed Suit No. FHC/1219/15 on the 6/10/15 (See pages 142-178) of the Record contending that the FHC did not have jurisdiction to hear the dispute between it and the appellant and that it is only the State High Court that could adjudicate in the dispute being a matter of simple contract between them. While that and the ruling on the issue of jurisdiction were all pending, the respondent yet commenced a Winding Up proceedings at the FHC on the same facts as those on which issues had been joined in Suit No.FHC/L/1219/2015. He stated that in view of the fact the Winding Up petition before Yunusa, J., was abusive of the one filed before Tsoho J., all of the same FHC, the appellant filed an application dated November 23rd, 2015 requesting the discharge of the Exparte order granted by Yunusa J. The trial Court, (coram Yunusa J.) heard the Appellant’s application but failed to discharge the Exparte orders.

On appeal to the Court below, the Exparte orders were discharged and the Court struck out

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some grounds of appeal before it, on the basis that leave to appeal was required in respect of the said grounds even though the appeal was in respect of grant of injunction by the trial Court. It is on this premise that the appellant has presented this appeal against the portion of the judgment of the Court below.

Parties filed and exchanged briefs of argument. An appellant Brief of Argument, settled by Olabode Olanipekun was filed on 15th August, 2016. In the said brief of argument, three issues were decoded for determination which are set out hereunder:-

1. Having regard to the fact that the appellant’s appeal at the lower Court arose in respect of a decision relating to the grant of interim orders of injunction against the appellant and also in respect of issues of pure law, whether the lower Court was not in error when it struck out grounds 4, 5 and 6 of the appellants Notice of Appeal before it (Ground I)
2. Whether the lower Court was not in grave error and also acted in breach of appellant’s right to fair hearing, when it refused to consider and pronounce on diverse fundamental issues validly raised before it by the appellant (Ground 2, 3, 5, 6, 7 and 8).

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Considering the facts and circumstances of the case before the lower Court, whether the said Court was not wrong in failing to dismiss the Winding Up Petition before it and the trial Court as an abuse of Court process. (Ground 4)On its part, the respondent filed a brief of argument on 30th May, 2017 which was deemed filed on 15/11/2017. Three issues for determination were proposed in the said brief which read as below:-

A. Whether the Appellants Notice of Appeal pursuant to the Ruling of the trial Court of 4th day December, 2015, and the grounds contained therein, are grounds of law alone or an APPEAL against grant or refusal of Injunction or appointment of receiver to justify the finding of same without leave if the trial Court or Court of Appeal being sought and obtained

B. Whether the petition herein presented by the respondent at the Registry of the trial Court constitutes abuse of judicial Process

C. Whether a superior Court is bound to make Pronouncement on any issue raised before it even when not validly raised or where Court is of the view that a consideration of an issue will dispose of the appeal

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A cursory look at the three issues raised by the parties leaves one in no doubt, that they are more or less the same or similar in con even though they differ in the wordings used in couching them, I think it will not be out of place, I will consider the 2nd issue for determination raised in the appellant’s brief of argument first which tallies with the third issue raised in the Respondents brief of argument, which borders on jurisdiction before considering the remaining two issues, if the need arises.

ISSUE NO. 2

As I posited supra, this issue is similar to the third issue raised in the respondent’s brief of argument. On this issue, the appellant in his brief of argument made a catalogue of complaints on the failure of the Court below to make pronouncement on some points raised before it which I will reproduce presently. The said Points include the followings:-

1. Whether the petition before the lower Court constitutes abuse of Court process in view of suit No. FHC/L/CP/1569/2015 – Eco Bank Nigeria Ltd Vs Honeywell Flour Mill Plc and Suit No. FHC/L/CS/1279/2015 – Anchorage Leisures Ltd & 2 Ors vs Eco Bank Nigeria Ltd.

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Whether the petition was aborted and liable to be struck out in view of the suspension of advertisement of Winding Up petition by the trial Court.

3. Whether or not the respondents counter affidavit and written address as argued in the appellants brief of argument before the lower Court were pronounced.
4. Whether the lower Court should order stay of Proceedings in view of the agreement by parties to go for arbitration as contained in the arbitration clause pending the out come of the arbitration proceedings.
5. Failure of the lower Court to make pronouncement on the issues 5, 6, and 7 which are distinct fundamental issues Presented before the lower Court for determination especially issue no. 5 which the appellant complained of denial of fair hearing by the trial Court for not affording the opportunity to hear his position.In arguing this appeal, the learned counsel for the appellant, distilled 3 issues for determination.

Issue No.1 deals with whether the Court was not in error when it struck out Grounds 4, 5 and 6 of the appellant’s notice of appeal when the issue before it relates only to the grant of interim orders against the appellant.

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The learned counsel to the appellant submitted that it was not in doubt that the appeal before the Court was in respect of the grant or Exparte orders against the appellant by the trial Court. He argued that since the appeal before the Court below arose from the decision of Court granting interim order of injunction against the appellant as well as in respect of issue of pure law, the appellant was well within its constitutional right of appeal as of right in approaching the lower Court, vide an appeal. He submitted that Section 241(1)(f) of the Constitution clearly gives right of appeal without leave against the decision, wherein injunction is granted. He contended that the Court below failed to appreciate the input of the appellant’s argument on the applicability of Section 241(1) of the Constitution which is not exhaustive as each condition is independent of the other and that the Court cannot import the requirement of condition(s) when considering condition(s) e.t.c. He cited the case of ATTAMAH v. ANGLICAN BISHOP OF NIGER (1999) 12 NWLR (pt. 633) 6.

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He argued further that even if the said grounds 4, 5 and 6 are subjected to the list in Section 241(1)(b) of the Constitution, same are grounds of law. He cited the case of FBN v TSA INDUSTRIES LTD [2010] 15 NWLR (pt. 1216) 247 at 291-292 where the Supreme Court itemised instances that would amount to grounds of appeal that are of pure law. He referred to the judgment of the Court below at page 1242 on the validity of ground 4, and submitted that having reached a decision that ground 4 was a ground of law, the Court below was without jurisdiction to revisit its decision on the said ground as it had become functus officio. He therefore submitted that the decision of the Court below to strike out Ground 4 of the appellant’s notice of appeal, is of no moment as it lacks power to take such decision. He cited the case of MOHAMMED v HUSSEINI (1998)14 NWLR (pt. 584)108 at 163. The learned counsel also referred to Grounds 5 and 6 and submitted that none of the 3 grounds seeks to question the exercise of discretion by the trial Court to have necessitated the leave of the Court. He then urged the Court to resolve this issue in favour of the appellant.

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ISSUE NO. 2

This issue deals with the failure of the Court below to consider and pronounce on some fundamental issues. The learned counsel for the appellant for instance listed 4 issues at page 13 of its brief, as examples of issues which the Court below refused to make pronouncement on. He stated that issue No. 5 relates to the breach of the appellant’s right to fair hearing by the trial Court when having raised the issue of mareva injunction suo motu without affording the FHC, which is the only Court with jurisdiction, to hear same while the suit filed by the appellant relates to a simple contract and can only be entertained by the State High Court. He stated that the challenge of the jurisdiction of the FHC is a subject of an appeal at the Supreme Court in SC.40/2016. He urged the Court to hold that the alleged abuse of Court Process by the appellant has not been made out.

ISSUE NO.3

Issue No.3 deals with whether a superior Court is bound to make pronouncement on any issue raised even when not validly raised.

The learned counsel for the respondent submitted that it is a settled principle of law, that the Court may

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consider all issues presented before it by parties and that it will be an exception where the Court concerned is of the view that a consideration of one of such issues is enough to dispose of the appeal. He cited the case of 7UP BOTTLING CO. v ABIOLA & SONS BOTTLING CO. LTD (2001) 6 SC among others. He submitted further that where issues are not validly raised, the Court is not bound to make any pronouncement on same.

He argued that this shows the conduct of the lower Court in withholding its pronouncement on other issues between parties is deliberate and not an omission on the part of the Court below which expressed its reasons for the action.

On arbitration, he submitted the allegation is in correct because the trial Court in its ruling clearly stated that an arbitration clause does not oust the jurisdiction of the Court and that the appellant had already taken steps in the proceedings. He referred to the judgment of the trial Court at pages 1081-1082. He argued that the appellant went beyond filing memorandum of appearance by filing Motion Exparte seeking to discharge interim order which include stay of proceedings.

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He argued that the appellant voluntarily assumed the risk of approaching the Court without first having recourse on the arbitration clause and cannot therefore be heard to complain about the non-compliance thereof by the respondent. He urged the Court to resolve this issue in favour of the respondent and to dismiss the appeal.

REPLY OF THE APPELLANT

The learned counsel to the appellant argued that issue no. 3 cannot be tied to any of the issues formulated for determination related to any ground of appeal.

As could be gleaned from the brief of argument filed by the respondents, it can be deduced that he conceded that the lower Court actually failed to make pronouncements on some or all the issues highlighted above as complained of by the appellant in the latter’s brief of argument. The learned respondent’s counsel however rightly argued that where an issue is subsumed by another issue, it is no longer necessary to make any pronouncement on the subsumed issue. See Adebayo vs AG Ogun State (2008)2-3 SC (Pt.II) 50; A.I.I.B. Ltd vs IDS Ltd & 2 Ors (2012)5 SC (pt.II) 112.

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Similarly, added the learned respondent’s counsel, where issues are not validly raised, the Court is not bound to make any pronouncement on it. He also as a concession of the complaint by the appellant’s counsel, admitted or agreed that the lower Court deliberately withheld its pronouncement on the issues raised and he argued, that the lower Court was faultless in withholding its pronouncement, as some of the issues complained of are mere academic issues which were not the crux or subject matter of the appeal. See Union Bank of Nigeria Ltd Vs Femi (1993) 5 NWLR (Pt. 295) 612; Adelaja v Alade (1999) 4 SC 81.

There is no gain saying that the lower Court had actually failed to make pronouncement on the issues highlighted above which were competently raised before the lower Court by the appellant. It is not correct to say that those issues were not important, crucial or apt for the determination of the case presented before the lower Court for determination by the appellant. Also on Issues No.s 5, 6 and 7 which the lower Court failed to consider and decide one way or other, it will also not be correct to say that they were subsumed by any of the other issues the lower Court made

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pronouncement on. The said issues which it failed to pronounce on which it glossed over are in my view, distinct and independent issues each of which stands on its own.

The Court below did not give convincing or cogent reason why it failed to make pronouncements on them except that it was “deliberate” as the learned counsel for the respondent stated in their brief of argument which said reason was not convincing at all.

It is trite law, that a Court of law should always make pronouncement on or must determine all the issues raised before it by parties. See 7Up Bottling Company vs Abiola Sons Bottling Company Ltd (2001)6 SC 73. In this instant appeal and as I stated supra, none of issues 5, 6 and 7 had not been subsumed by any other issue. This 2nd issue raised by the appellant is therefore hereby resolved in favour of the appellant against the respondent.

In the result, in view of my resolution of the 2nd issue in favour of the appellant, it will be premptous to proceed to consider at this stage, the other remaining two issues. It is therefore hereby ordered that this appeal be remitted to the lower Court for it to consider Issues No 5,

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6 and 7 which were validly raised and argued before it but were not determined by it, as well as the other complaint made by the appellant in his Amended Brief of Argument as itemised above. The Appeal therefore succeeds and is allowed. I make no order as to costs. Case is remitted to the Court below to consider the issues mentioned supra.

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SC.401/2016