Tate Industries Plc. V. Devcom Merchant Bank Ltd. (2000)

LawGlobal-Hub Lead Judgment Report

IGE, J.C.A.

On 6/8/98, the Federal High Court ordered that the appellant/applicant company be wound up for inability to pay its debts and consequently appointed the official Receiver of the Federal High Court to take charge of the affairs of the company as required by law. The appellant/ applicant is dissatisfied with this order and has appealed to this court.

In the interim, the applicant filed a motion before the lower court seeking the following orders:-

(1) An injunction restraining the official Receiver of the Federal High Court from selling or in any other way parting with the properties of the Appellant/Applicant at the Otta Factory, Ogun State pending the determination of the appeal herein.

(2) An order that the business operations of the Appellant/Applicant at the Otta Factory site be carried on by the Appellant/Applicant under the supervision of the Official Receiver aforesaid pending the determination of the appeal.

(3) An order that the taking over and sealing of the factory premises of the Appellant/Applicant by the Official Receiver at Murtala Mohammed Way, Ilorin in execution of the winding up order of Federal High Court be set aside pending the determination of the appeal lodged against the order of the said court.

(4) An order that the business operation of the Ilorin factory of the Appellant/Applicant be allowed to be carried on by the Applicant as before as a going concern pending the determination of the appeal.”

While the above motion is pending before the lower court the Appellant/Applicant has filed a similar motion before the Court of Appeal seeking the following reliefs:-

“i. An injunction restraining the Official Receiver of the Federal High Court from selling or in any other way parting with the properties of the Appellant/Applicant at the Otta Factory, Ogun State pending the determination of the appeal herein.

ii. An order that the business operations of the Appellant/Applicant at the Otta Factory site be carried on by the Appellant/Applicant under the supervision of the Official Receiver aforesaid pending the determination of the appeal.

iii. An order that the taking over and sealing of the factory premises of the Appellant/Applicant by the Official Receiver at Murtala Mohammed Way, Ilorin in execution of the winding up order of Federal High Court be set aside pending the determination of the appeal lodged against the order of the said court.

iv. An order that the business operation of the Ilorin factory of the Appellant/Applicant be allowed to be carried on by the Applicant as before as a going concern pending the determination of the appeal.

v. An order for stay of further proceedings in respect of all the applications in Suit No. FHC/L/CP/1162/95 pending before the Federal High Court, Lagos.”

When the above motion was to be argued in this court, the Respondent filed a notice of preliminary objection saying that the application brought by the appellant/applicant constitutes an abuse of the process of the court and should be struck out. The grounds of objection are as follows:-

“a. A similar application is pending and part heard at the lower court before the Hon. Justice Abdulkadir Jega.

b. No ruling has been delivered in respect of the part heard application of which a similar one has been filed at the Court of Appeal.

c. There is no appeal against the ruling of the court dated 11th February, 1999.

d. There is no special circumstance to warrant the part heard application before the lower court not being concluded.”

In the course of their argument in court, the respondent’s counsel has submitted that the rules do not provide for simultaneous applications before the lower court and this court. He stated that the issue of bias if any should first go before the lower court. Counsel cited the case of Globe Motors Holding (Nig.) Ltd. v. Honda Manufacturing Co. Ltd. Japan & Anor. (1998) 5 NWLR (Pt.550) 373. He finally submitted that the applicant should go back to the lower court for a Ruling on its motion before that court.

The Applicant’s counsel in reply referred to cases where this court has given interpretation to Order 3 rule 24. He gave reason why the applicant has come here in spite of the similar application before the lower court. According to him, the learned trial Judge in the lower court had already taken a stand because he saw nothing wrong with the action of the Official Receiver who sealed up the Tate Factory in Ilorin when the application before him was still pending. He cited many cases including the following to buttress his arguments: Pepple v. Green (1990) 4 NWLR (Pt.142) 108; Irukwu v. Trinity Mills Insurance Brokers & Ors. (1997) 6 NWLR (Pt.507) 100; Comptroller of Nig. Prisons Services v. Adekanye & Ors. (1999) 6 NWLR (Pt.607) 381. He also relied on the Globes’ case (supra) and Order 1 rule 20(8) of Court of Appeal Rules. Order 1 rule 20(8) of the Court of Appeal Rules read thus:-

“The court shall have power to make orders by way of injunctions or the appointment of a Receiver or Manager and such other necessary orders for the protection of property or person pending the determination of an appeal to it even though no application for such an order was) made in the court below”.

(The italised are mine).

It is true that the intention of Order 1 rule 20(8) of the Court of Appeal Rules is to ensure a speedy access to this court when an injunction is sought. It seems to me that the Rules do not cover cases where similar application is pending before the lower court and also part heard by the said court. The similar application for an injunction etc. is being heard in the lower court and as at the time this application was filed in this court the matter had been argued before the lower court and ruling was adjourned to 29-2-2000.

To give the applicant a hearing in this court on a similar application which is already part heard by the lower court will amount to a clear case of abuse of the process of the court. The fact that a party should be given a free access to the court on question of injunction should not be taken as a liberty for a litigant to undermine respect for law and order and the integrity of the courts – See the case of Globe Motors Holdings Ltd. v. Honda Motor Co. Ltd. Japan & Anor. (1998) 5 NWLR (Pt.550) 373 at 381.

In the instant case, while a similar application is being heard in the lower court and not yet decided, the applicant has rushed to this court to seek the same orders in an attempt to forestall the ruling yet to be delivered by the lower court. There is no reason whatsoever to justify the hurry to this court. An applicant for an injunction must make proper use of judicial process and not run helter skelter from the court below to the Court of Appeal bringing similar applications simultaneously before the 2 courts. This is a clear case of abuse of court process and it must be discouraged.

On a final analysis, the preliminary objection succeeds and the application filed in this court on 15-3-99 is hereby struck out with N1,000.00 costs to the Respondent/Objector.

Other Citations: (2000)LCN/0765(CA)