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‘Court Judgement Binding On Parties Until Set Aside…’

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FACTS

This appeal is against the judgment of the Court of appeal, Lagos Division, Coram: Sidi Dauda Bage JCA (as he then was), Samuel Chukwudumebi Oseji and Abimbola O. Obaseki Adejumo JJCA, also referred to as Court below or lower Court which decision was delivered on the 30th day of March, 2016 wherein the Court below affirmed the consolidated ruling of the trial court delivered on the 15th day of July, 2016 per M. N. Yunusa J.

The respondents commenced the main suit in this appeal by a writ of summons dated 6th August 2015. The respondents’ reliefs before the trial court, amongst others, are for a declaration that they are not indebted to the appellant in any amount having paid the sum of N3,500,000,000.00 as full and final settlement of their indebtedness; and an order of perpetual injunction restraining the defendant from making any representation in any form, to any third party suggesting that any of the plaintiffs is indebted to it in any way.

On10th August, 2015, the trial court made an interim order directing parties in the suit to maintain the status quo ante bellum pending further orders of the court. The appellant was duly notified and served with a copy of the order made by the court. When the matter came up for hearing at the trial court on 29th September, 2015, counsel for the appellant stated in open court, that his client, being a responsible corporate citizen, would not act to impugn existing orders of court.

The respondent then challenged the jurisdiction of the trial court over the subject matter of the suit, claiming that only the State High Court had jurisdiction to hear the dispute. After raising a subject matter jurisdictional challenge and whilst awaiting the decision of the trial court on same, and contrary to the undertaking made by counsel, in flagrant disobedience to the pending interim order of the trial court, the appellant on 16th October, 2015 filed a winding-up petition against the 3rd respondent in Suit NO. FHC/L/CP/1569/2015 ECOBANK NIGERIA LIMITED v HONEYWELL FLOUR MILLS PLC based on a purported indebtedness of the 3rd respondent to the appellant. But it noted that the purported indebtedness of the 3rd respondent to the appellant, formed the subject matter of the main suit in this appeal and in respect of which the trial court had on 10th August, 2015 directed that parties should maintain status quo.

In the said Suit No. FHC/L/CP/1569/2015-Ecobank Nigeria Limited v Honeywell Flour Mills Plc, the appellant had sought ex-parte orders against the respondent, which were duly and rightly refused by the Federal High Court per Tsoho J. on 9th November, 2015. It was worthy of note that the said ex-parte orders were expressly declined in view of the pendency of the main suit in this appeal which, according to Tsoho J, clearly shows that the debt purporting to culminate in the winding up petition filed as Suit No. FHC/L/CP/1569/2015 was hotly disputed in the suit before the trial court and l thereafter ordered the 3rd respondent to be put on notice.

Apparently exasperated by the findings of Tsoho J refusing its ex-parte application and in furtherance of its continuous disregard for the pending interim orders made by the trial court, the appellant neither appealed this correct finding nor complied with the order of Tsoho J for the 3rd respondent to be put on notice, but rather, proceeded to file that exact same winding-up petition before another judge of the same Federal High Court (YUNUSA J) and same was designated Suit NO. FHC/L/CP/1689/2015 Ecobank Nigeria Limited v Honeywell Flour Mills Plc. On 18th November, 2015, Yunusa J granted the exact same ex-parte orders which were earlier refused by the Tsoho J.

Furthermore, on 16th October, 2015, the appellant filed another winding up petition against the 1st respondent herein in Suit No. FHC/L/CP/1570/2015 Ecobank Nigeria Ltd v Anchorage Leisures Ltd and in relation to subject matter of the suit before the trial court and on the 27th October, 2015.

It also obtained ex-parte orders of injunction against the 1st respondent before the said Yunusa J which violently conflicted with the pending interim orders of the trial court. Not done the appellant filed Suit No. FHC/L/CP/1572/2015 Ecobank Nigeria Ltd v Siloam Global Ltd against the 2nd respondent herein before a third judge of the same Federal High Court, Lagos. The appellant also sought ex-parte orders against the 2nd respondent in the said suit but same was declined on 6th November, 2015 and the 2nd respondent was ordered to be put on notice. Since the ex-parte application was declined, the appellant refused to serve the 2nd respondent with the said order until 20th November, 2015 it was served with the respondent’s contempt proceedings on 18th November, 2015.

It is pertinent to underscore the fact that Suit Nos. FHC/L/CP/1569/2015, FHC/L/CP/1689/2015, FHC/L/CP/1570/2015 and FHC/L/CP/1572/2015 are winding up petitions based on the alleged indebtedness of the respondents to the appellant, the subject-matter in the earlier pending suit commenced by the respondents before the trial Federal High Court. The said suits seem to constitute an attempt by the appellant to rubbish the extant interim orders of the lower court for parties to maintain the status quo and indeed to overreach the suit before the lower court for the respondents to be wound up when the purported indebtedness is seriously in dispute.

Upon becoming aware of the filing of the suits in paragraphs 2.7 above, the respondents, in line with the provisions of the Sheriffs and Civil Process Act, commenced a committal proceedings against the appellant. As required under the Act, the respondent caused the Registrar of the trial court to issue Form 48 (Notice of Consequences of Disobedience of Order of Court) on the appellant on 18th November, 2015 (see pages 3-7 of the record). Thereafter, and in accordance with the provisions of Sheriffs and Civil process Act, the appellant was served on 23rd November, 2015 with Form 49. Subsequently, the respondents filed a Motion on Notice pursuant to Order 35 Rules 1 and 2 of the Federal High Court (Civil Procedure) Rules 2009, seeking committal orders against the appellant through its alter ego and directing minds for gross disobedience of the order of the trial court. See pages 90-336 of the Record.

The appellant filed a counter affidavit and a written address against the respondent’s motion and also raised a preliminary objection against the originating processes in the committal proceedings (Forms 48 and 49) vide a Notice of Preliminary Objection dated 8th December, 2015 seeking the ‘’striking out of the respondent‘s FORMS 48 AND 49’’

On the 15th January, 2016, the trial court upheld the preliminary objection filed by the appellant and struck out the committal proceedings for lack of proof of service of the originating processes on the appellant. Strangely dissatisfied by the grant of its preliminary objection, the appellant appealed to the lower court seeking a determination of the merits of the contempt proceedings without specifically appealing the’ striking out of the contempt proceedings for want of jurisdiction by the trial court. Quite naturally, the lower court found the appeal as unwarranted and dismissed same having affirmed the trial court‘s lack of jurisdiction to determine the merits of the contempt proceedings.

ISSUES FOR DETERMINATION

i. Whether the Court of Appeal was right when it failed to determine the propriety of the learned trial Judge‘s hearing of the committal / processes thereby affirming an unjust breach of law of natural justice and appellant’s fair hearing.” (Distilled from grounds 2 and 4 in Notice of Appeal).

ii. Whether the Court of Appeal was right when it held that the justifiability of the committal proceedings was not in issue in the appeal determined by it when same is one of the main and principal complaint of the appellant.

ARGUMENT

This appeal really evokes very strange feelings in the light of the appellant whose application led to the striking out of the contempt proceedings in the first place at the trial court for a lack of jurisdiction and the same appellant inviting this court to sit on the merit of the said contempt proceedings on the basis that there was a breach of natural justice in circumstances where the said issue had not been articulated and determined at the Court of Appeal.

The curious and strangeness of this appeal is all the more highlighted though unfortunately in the heels of the abusive language of learned counsel in his lecturing sermonising of what he puts up as what the trial judge should or should not do. I must decry with seriousness the indecency of the language used on the learned trial judge in circumstances clearly unwarranted and unjustified. That a judge has no forum to defend himself is not a licence for being available for target practice in the use of indecent and deprecating words. I have to say so here and now so as to remind legal practitioners of the red line not to cross. I agree with learned counsel for the respondents that the point being made is that if the trial court does not have jurisdiction and the lower court has so affirmed the said findings which none of the parties has appealed against, the Supreme Court would also not have jurisdiction to determine the merits of the said committal proceedings.

The Case of Gblleve & Anor v Adingi (2014) 1-2 SC (Pt. 111) at 42 captured the situation appropriately thus:

“The issue of jurisdiction of the trial court to entertain the originating summons ab initio is fundamental to the competence of the appeal before this court. Where the originating process at the trial court is found not to confer jurisdiction on the court the proceedings are a nullity. The absence of jurisdiction has a ripple effect and taints the appellate courts, which would equally lack ‘jurisdiction to entertain appeals arising from the null: proceedings.” (Emphasis ours). See also SLB Consortium Ltd v NNPC (2011) 9 NWLR (Pt.1252) 317 at 336; Vab Petroleum Inc. v ‘Monah (2013) 14 NWLR (Pt.1374) 284 at 326.

All I see before me in this appeal is an entirely frivolous process which purpose, I am yet to understand except one views it through the precincts of an academic gymnastic display albeit with offensive language in terms opposite to the tenets of the legal profession. It follows that the invitation to this court to interfere with the well-grounded concurrent findings of the two courts below is vehemently rejected being baseless. See Idufueko v Pfizer Products Ltd (2014) 1 NWLR 3 (Pt.1420) 96 at 113; Ugba v Suswan (2014) 14 NWLR (Pt.1427) 264 at 315 where it was:

“Decisions in case law are meant to speak volume both in the given situation and for future guidance. Counsel is well advised to desist from filing unnecessary suits which are merely academic and yielding no benefits but mere waste of quality time.”

In the same vein as Inugba v Suswam, I dismiss appeal for being a waste of the Court‘s time. 1 award One Million Naira (N1,000,000.00) to the Respondents to be paid by the Appellant.

Mary Ukaego Peter Odili, JSC

Representations: G. C. Duru, with him is 0. A. Divine—For Appellant

Olabode Olanipekun, with him are; Faith Adarighofua, Shoia Bojuwoye, Opemipo Oiorunfemi, Koiawole Aro—For Respondents

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