STAR DEEPWATER PETROLEUM LIMITED & ORS. v. A.I.C LIMITED & ORS.
(2010)LCN/3795(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of May, 2010
CA/L/610M/05
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
1. STAR DEEPWATER PETROLEUM LIMITED (an affiliate of Chevron Corp)
2. TEXACO NIGERIA OUTER SHELF LIMITED
3. PETROLEO BRASILEIRO NIGERIA LIMITED
4. STATOIL NIGERIA LIMITED
5. FAMFA OIL LIMITED Appellant(s)
AND
1. A.I.C LIMITED
2. MANNESMANN ANLAGENBAU AG
3. MANNESMANN DEMAG AG
4. TECHNIP OF FRANCE
5. TOTAL UPSTREAM NIGERIA LIMITED
(Garnishee in respect of EPSO Deepwater
AKPO Field Nigeria Project) Respondent(s)
HON. JUSTICE ADAMU JAURO, J.C.A: (Delivering the Leading Judgment) By an application dated and filed on the 25th September, 2009, the applicants herein prayed this court for the following reliefs:
“(a) an Order that the 2nd and 3rd respondents (i.e. Mannesmann Anlagenbau AG and Mannesmann Demag AG having merged and become transformed into Mannesmann Demag Krauss-Maffei GmbH) be substituted in this appeal with the said Mannesmann Demag Krauss-Maffei Gmbh;
(b) an Order that the notice of appeal and all other processes, documents and applications in this appeal as may be filed and served on the 2nd and 3rd respondents be now served on the said Mannesmann Demag Krauss-Maffei GmbH at its registered office at Wittelsbacherplatz, 2 – 80333, Munich, Germany by substituted means i.e. by courier namely Fedex Express Nigeria Limited or such other courier company as the court may direct.
And for such further order or other orders as this honourable court may deem fit to make in the circumstances.”
The grounds upon which the reliefs are anchored as stated on the face of the motion paper are as follows:
“(i) Despite several attempts in that regard, it has become impossible to serve the 2nd and 3rd respondents at their address on record at Mannesmannufer 4-40213, Dusseldorf, Germany; and
(ii) there is now evidence before this honourable Court that the 2nd and 3rd respondents have merged and transformed in a single corporate entity known as Mannesmann Demag Krauss Maffei GmbH with its registered address at Wittelsbacherplatz, 2 – 80333 Munich, Germany, a place outside the jurisdiction of this Honourable Court.”
Mr. Ladipo Soetan leading Mr. A. A. Sojirin for the appellants/applicants stated that the application is supported by a 12 paragraphed affidavit with 8 exhibits marked ‘STAR 1-8’ and a 9 paragraphs further affidavit filed on 5/6/09 with exhibits marked WK 15(a) to (k) and WK 16(a) to (k). Learned counsel placed reliance on all the paragraphs of the affidavit, the further affidavit and the exhibits attached. Learned counsel further stated that the 2nd and 3rd respondents still exist, but that they have been merged and transformed into another party. Learned counsel submitted that the 2nd and 3rd respondents being the judgment debtors, are necessary parties to the appeal. Learned counsel stated that the 4th and 5th respondents are not opposing the application and the grant of the application will not in any way affect the 1st respondent.
Learned counsel contended that this court has the power to grant the application and in support reference was made to the case of Commercial Bank (Credit Lyonnais) Nig Ltd v. Okoli & Ors (2009)5 NWLR (Pt. 1135) 446. Learned counsel further submitted that, the counter affidavit filed on 5/6/09 contains arguments, which run foul of the Evidence Act. In concluding learned counsel submits that the path of justice will best be served by the grant of the application, hence he urged that the application be granted.
Prof. A.B. Kasunmu SAN leading Prof. S.A. Adesanya SAN with Mr. A. J. Owonikoko and Mr. Waheed Kasali appeared for the 1st respondent in opposition to the application. In his response, Prof. Adesanya SAN submitted that by Order 6 Rule 10(3) of the Rules of Court, the applicants or their predecessors being 2nd and 3rd respondents, have already been disqualified from being served, hence not entitled to be heard. Learned senior counsel posits that substitution can only be made of a party entitled to be heard, the applicants having been disqualified, the application should not be granted. Learned senior counsel further submitted that the applicants being judgment debtors are not strictly entitled to be heard in garnishee proceedings, and reference was made to the case of PPMC Ltd & Anor V Delphi Petroleum Inc. (2005) 8 NWLR (Pt. 928)458. Learned senior counsel contended that the case of Commercial Bank Credit Lyonnais Vs Okoli cited by applicants is irrelevant as it did not deal with Order 6 Rule 10(3) of the Rules of this Court. Learned senior counsel made reference to page 18 line 19 of the ruling attached to the counter affidavit, marked exhibit ‘AF2’ and stated that, the 2nd and 3rd respondents had already been substituted by Technip of France i,e. 4th respondent. Learned senior counsel urged the court to strike out or dismiss the application as it is a ploy to frustrate the progress of the case.
Mr. Paul Usoro SAN leading Mr. Benson Akunya, Mrs. Onuka, Mr. C. Eze and Mr. O. Ayinla for the 4th respondent stated that they have no objection to the application. Learned senior counsel submits that Order 6 Rule 10(3) of the Rules of court only addressed the issue of service and not entitlement of a party to be heard, hence it does not preclude a respondent from being heard by a court. Learned senior counsel further submits that Order 6 Rule 10(3) must be read in conjunction with Rule 10(1) and that the said order is only applicable where service is effected by the court not as in this case, where service was by substituted means. Learned senior counsel contends that the important consideration in granting applications of this nature, is whether it serves the interest of justice or prejudices the other party. Mr. A.O. Ejiwunmi for the 5th respondent stated that he is not opposing the application.
The application herein is for the substitution of the 2nd and 3rd respondents herein with Mannesman Demag Kraus – Maffei Gmbh, as a consequence of merger. The 151 respondent objected to the application, anchoring the objection on Order 6(10)(3) of the Rules of court and the fact that judgment debtors are not supposed to be heard in garnishee proceedings. Order 6 Rule 10(3) of the Rules of court, provide thus:
“If any respondent fails or omits to file such notice of address for service it shall not be necessary to serve on him any other proceeding in the appeal or any notice of hearing thereof.”
As can be seen from the aforementioned provision, any respondent who fails to file notice of address for service, it shall not be necessary to serve on him other processes or notice of hearing.
The rule only precludes the service of other processes but does not affect the right of the respondent of being heard. Order 6 Rule 10(3) should be read in conjunction with Rule 10(1), and the service of the originating process in this case was served by substituted means not personal service as envisaged by the Rules. This to my mind has also created some peculiar and exceptional circumstances in the instant application.
The application herein is predicated upon an appeal against a ruling of the High Court of Lagos dated 4/11/05 in relation to a garnishee proceedings. The contention of the 1st Respondent, is that the parties sought to be substituted being judgment debtors, are not strictly entitled to be heard in garnishee proceedings. It is trite law, that garnishee proceedings though incidental to the judgment pronouncing the debt owed, the judgment debtor is not a necessary party to the said proceedings. See P.P.M.C. Ltd v. Delphi Pet. Inc (2005) 8 NWLR (Pt. 928) 458. In the instant case, the 2nd and 3rd respondents, having been made parties to the appeal, an application to substitute them cannot be said to be out of place.
Consequent upon the foregoing, I find merit in the application and it is hereby granted as prayed. There will be no order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I have before now read in draft the ruling just delivered by my learned brother JAURO JCA and I agree with both the reasoning and conclusions. I have nothing useful to add. I abide by all the orders contained in the lead ruling.
ADZIRA GANA MSHELIA, JCA: I have been afforded an opportunity of reading in advance the leading ruling of my learned brother, Jauro, JCA just delivered. I subscribe to the reasons given by him that the application is meritorious and same is granted. I also make no order as to costs.
Appearances
Mr. Ladipo Soetan with Mr. O. O. SojirinFor Appellant
AND
Prof. A.B. Kasunmu SAN with Prof. S.A. Adesanya SAN, Mr. A.J.
Owonikoko and Mr. Waheed Kasali
Mr. Paul Usoro SAN with Mr. Benson Akunya, Mr.S. Onuka, Mr.
C. Eze and O. Ayinla Esq.
Mr. A. O. EjiwunmFor Respondent
