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Ecobank Nigeria Limited has urged the Supreme Court to set aside a Court of Appeal verdict on its winding-up petition against Honeywell Flour Mills Plc over an alleged 3.5billion debt.
Justice Mohammed Yunusa of the Federal High Court in Lagos last December 4 froze Honeywell’s accounts following an application by Ecobank’s lawyer, Mr. Kunle Ogunba (SAN) of the Insolvency Forte.
The judge later varied the order by allowing Honeywell to withdraw N15million per week pending hearing of the suit, which Honeywell appealed against.
The Court of Appeal ruled in Honeywell’s favour and discharged the restraining order. In the judgment delivered by Justice Abimbola Obaseki, the Court of Appeal set aside Justice Yunusa’s order on the ground of abuse of Order 4 of winding up rules.
The Court of Appeal held that Justice Yunusa made the ex-parte order without notice to Honeywell. She said it violated the rules guiding winding-up petitions.
According to her, the rules state that every application in such a petition shall be by motion on notice to the person against whom the order was to be made.
“Justice of the case demands that both sides be heard. The ruling of the Federal High Court is hereby set aside. The petition shall be assigned to another judge for necessary action. Parties shall bear their costs,” she held.
Justice Idris had last August 10 made an order of interim injunction restraining the bank from publishing the plaintiffs’ name as debtors and ordered parties to maintain status quo pending hearing of the plaintiffs’ suit.
But Honeywell said while the suit was pending, Ecobank filed other suits before other judges in a bid to recover its debt from Honeywell Group and its chairman Oba Otudeko. Honeywell’s lawyers, therefore, filed Form 48 and Form 49, urging the court to hold the bank in contempt.
But Justice Idris struck out the contempt proceedings on the basis that no proper service was effected on the alleged contemnors.
Ecobank has opted to approach the Supreme Court to set aside the entire judgment/decision of the Court of Appeal on the ground that the appellate court erred in law in setting aside the ex-parte orders made by Justice Yunusa.
The bank is urging the Supreme Court to hold that the Winding-up Rules did not outlaw the issuance of ex-parte orders, among other ground.
Besides, it said the Winding-up Rules did not provide for ex-parte orders, adding that it was provided for in the court’s Civil Procedure Rules.
“The Winding-Up Rules is a subsidiary legislation and not elevated to the rank of a statute. Rule 4 of the Winding Up Rules only provided for applications inter-parties and thus created a lacuna as it relates to ex-parte applications which can only be filled by the Civil Procedure Rules of the court,” the bank said.
Ecobank also appealed against the dismissal of its appeal challenging the jurisdiction of Justice Mohammed Idris of the Federal High Court in establishing a customer banker’s relationship in a related case.
The Court of Appeal had held that there was a banker-customer relationship between the parties.
However, the bank is praying the Supreme Court to hold that the Court of Appeal occasioned a gross miscarriage of justice by allowing the respondents the benefits of an “in-principle” agreement they were never party to.
Ecobank is also praying the Supreme Court to decide whether it was wrong to seek redress before other courts and whether it amounted to contempt of court.
“The learned justices of the Court of Appeal erred in law and occasioned a gross miscarriage of justice by failing to determine whether the learned trial judge, Justice Mohammed Idris, had power to even hear or consider the committal proceedings,” the bank said.
Ecobank has also urged the Court of Appeal to grant an order of injunction restraining Honeywell from taking advantage of the order discharging the interim/varied order pending the determination of the case by the Supreme Court.
The bank said the interim order was made to preserve Honeywell’s funds in some banks, namely Zenith, Access, Citibank, Standard Chartered, Wema, GTBank, Fidelity and Ecobank until the case is determined.
“There is an urgent need to preserve the res (subject-matter) of the appeal to avoid foisting a situation of helplessness on the Supreme Court, a superior court of record,” Ecobank said.
