Ecobank, Ogunba didn’t abuse court process, Appeal Court tells Honeywell

By Joseph Jibueze, Deputy News Editor

 

The Court of Appeal in Lagos has held that Ecobank Nigeria Limited and its counsel Mr Kunle Ogunba (SAN) did not abuse the court process in the bank’s debt recovery suit against Honeywell Group Limited.

Honeywell had petitioned the Legal Practitioners Privileges Committee (LPPC), accusing Ogunba of filing a multiplicity of suits before different judges of the Federal High Court on the same subject-matter.

Acting on the petition, the LPPC on January 11, 2018, withdrew Ogunba’s SAN rank.

It later restored it on September 20, 2018, following a review and after clearing the insolvency practitioner of wrongdoing.

Justice Jude Dagat of the Federal High Court had agreed with Honeywell’s lawyer Bode Olanipekun (SAN) by striking out a winding-up petition against Honeywell.

The judge held that the suit before him constituted an abuse of court process because it was “aimed at substantially overreaching and preempting the suit before Idris J. which is between the parties and in respect of the same subject-matter, i.e, debt”.

Dissatisfied, Ecobank appealed through Ogunba.

The Court of Appeal, in the lead judgment of Justice Obietonbara Daniel-Kalio, held that the lower court erred.

Citing Saraki v Kotoye (1992), Justice Daniel-Kalio held that an abuse of court process will arise when multiple actions are filed on the same subject matter against the same opponent on the same issues.

“Such action must be by the same party against the same opponents on the same issues in the multiple actions,” the Justice said.

He noted that Ecobank’s winding-up petition before Justice Dagat was against Honeywell Group, while in the matter before Justice Idris, the parties were Anchorage Leisures Limited, Siloam Global Limited and Honeywell Flour Mills Plc.

Justice Daniel-Kalio held: “Straight away, the parties are clearly not the same. Indeed, the respondent in the petition before the lower court Honeywell Group was not even a party in Suit No FHC/L/CS/1219/2015.

“While I appreciate the spirited arguments made by the respondent’s learned senior counsel about proof of indebtedness being a requirement for filing a winding-up process and the point that the respondent is a loan guarantor etc, it is my respectful view that such arguments are best addressed at a hearing of a petition.

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“The elephant in the room that cannot be ignored, in this instance, is the element of a multiplicity of suits involving the same parties.

“How does one square the circle on the question of lack of sameness of parties? Impossible.

“The ruling of the lower court striking out the petition is wrong as there was no abuse of court process; there was no multiplicity of suits involving the same parties.

“The ruling of the lower court is, therefore, hereby set aside. It is ordered that the Chief Judge of the Federal High Court shall re-assign the hearing of the appellant’s petition to another judge of the Federal High Court.”

The Appellate Court also dismissed Honeywell Group’s cross-appeal in which it contended that the lower court ought to have dismissed Ecobank’s suit rather than strike it out.

Dismissing the cross-appeal, Justice Daniel-Kalio held: “It will tantamount to embarking on a mere academic exercise to consider the arguments in this cross-appeal as it turns or revolves on the premise that the lower court’s decision in striking out the petition for being an abuse of court process was right.

“The courts are not to indulge academic exercises, which are best left for those in the citadels of learning. I will, therefore, peremptorily and without more, dismiss the cross-appeal. It is hereby dismissed.”

Two other Justices, Obande Ogbuinya and Onyekachi Otisi, concurred with the lead judgment.

Justice Ogbuinya held: “The absence of oneness of party nomenclature in the two suits made the charge of abuse of court process hurled against the appellant’s suit a pseudo-allegation.

“The lower court erred in law when it stigmatised it as an abuse of court process. In effect, I too, partially allow the appeal in the manner decreed in the erudite judgment. I dismiss the cross-appeal.”

Justice Otisi added: “I agree with the reasoning and conclusions therein, and adopt same as mine. I abide by the orders made in the lead judgment.”

The Court of Appeal also reached similar conclusions in Ecobank’s appeal in a sister case against Anchorage Leisures Limited, a subsidiary of Honeywell Group owned by Oba Otudeko.