CONSOLIDATION CONTRACTORS (OIL AND GAS) COMPANY SAL v. MR. MUNIB MASIRI
(2010)LCN/3618(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of March, 2010
CA/L/430/2009
RATIO
PROCEDURE: PURPOSE OF THE RULES OF APPELLATE PROCEDURE
The prime purpose of the rules of appellate procedure… that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely; that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information to the other side of the precise nature of the complaint of the appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding that it did not conform to a particular form”. PER PAUL ADAMU GALINJE, J.C.A.
APPEAL: WHAT ARE APPEALS ARGUED ON
The law is settled that appeals in this Court are argued on the basis of the issues formulated from the grounds of appeal and not on the basis of the grounds of appeal. See Order 17 rules 2 and 10 of the Court of Appeal Rules 2007.
In Khalil v. Yar’Adua (2003) 16 NWLR (Pt. 847) 446 at 479 paragraph G-H, this Court said:-
“Again, no issue from the issues formulated by the Appellant seems to cover that ground. It is trite law that any ground of appeal which is not covered by an issue for determination is deemed abandoned and liable to be struck out”.
See Gbade v. Gbafe (1996) 6 NWLR (Pt.455) 417; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373 at 422; Onifade v. Olayiwola (1990) NWLR (Pt. 161) 130 at 175; UAC (Nig) Ltd. v. Global Transport SA (1996) 5 NWLR (Pt. 448) 291. PER PAUL ADAMU GALINJE, J.C.A.
JUSTICES:
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
IBRAHIM M MUSA SAULAWA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
CONSOLIDATION CONTRACTORS (OIL AND GAS) COMPANY SAL – Appellant(s)
AND
MR. MUNIB MASIRI – Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): By a motion ex-parte dated the 14th day of November, 2008 the Respondent herein, who is the judgment creditor in a judgment which was delivered on the 28th July, 2006 by the High Court of Justice Queens Bench Division commercial Court, London, sought for the following reliefs at the Federal High Court, Lagos: –
‘1. An order extending time within which the Judgment Creditor may apply to register and enforce the judgment delivered by the Queens Bench Division of the High Court of Justice in England in this suit on 28th July 2006, the quantum orders made on 15th June, 2007 and 5th October, 2007.
2. An order of this Honourable Court registering as the judgment of this Honourable Court the following Judgments and orders of the Queens Bench Division of the High Court of Justice in England (Commercial Court) in case No. 2004 folio 124, case No. 2004 Folio 831 between the above  named parties.
(i) The judgment dated 28th July, 2006.
(ii) Order dated 15th June, 2007 by Mrs. Justice Gloster D B E.
(iii) Order dated 5th October, 2007 by Mrs. Justice Gloster D B E.
(iv) Order dated 11th February, 2008 by Mrs. Justice Gloster D B E.
(v) Order dated 9th April, 2008 by Mr. Justice Tomlinson.
AN INTERIM ORDER prohibiting the Judgment Debtor i.e. Consolidated Contractors (Oil and Gas) Company SAL from disposing, transferring or registering in favour of any person at the Corporate Affairs Commission, Abuja its ownership interest of any of its shared in:
(a) CCC Energy Nigeria Ltd
(b) CCOG Nigeria Ltd pending the final determination of the motion on Notice filed in this matter.
4. AN ORDER GRANTING LEAVE TO THE Judgment Creditor to serve the Ex-parte order of this Honourable Court and the motion on notice and all other processes to be issued in this matter on the Judgment Debtor, Consolidated Contractors (Oil and Gas) Company SAL, at their office at Bir Hassan Sursock Street, P. O. Box 11-2254, Riad EL Solh, Beirut 1107-2100 Lebanon through DHL Courier Services.
AND FOR SUCH further or other orders as this Honourable Court may deem fit to make in the circumstances.
The Respondent filed yet another application by motion on notice dated the 14th November, 2008 praying the lower Court for the following: –
‘1. AN ORDER attaching all shares belonging to Consolidated Contractors Oil and Gas Company SAL in CCC Energy Nigeria Limited and CCOG Nigeria Ltd for the purpose of satisfying the judgment debt in this matter.
2. AN ORDER directing the Chief Registrar of this Honourable Court to conduct a valuation and disposal by sale or through other means, of all shares held in the name and/or belonging to Consolidated Contractors Oil and Gas SAL in the following companies: CCC Energy Nigeria Limited and CCOG Nigeria Limited and applying the proceeds thereof to satisfy (in whole or part) the judgment debt in this action which stood at US (sic) 65,832,128.37 Million as at 12th November, 2008.
AND FOR SUCH further or other orders as this Honourable Court may deem fit to make in the circumstances.
On the 21st day of November, 2008, Auta J. of the Federal High Court Lagos heard the motion Ex-parte and granted all the prayers therein and adjourned the case to the 5th of December, 2008 for hearing.
By a motion on notice dated the 2nd December, 2008 and filed on the 4th of December, 2008, the Appellants asked for the following reliefs: –
‘1. An order setting aside, the issuance and the service of the Ex-parte application dated 14.11.08, motion on Notice Dated 14.11.08 and all other processes on the judgment Debtor, AND SUCH FURTHER or other orders as the Honourable Court may deem fit to make in the circumstances,
AND TAKE FURTHER NOTICE that the grounds upon which this application shall be made are as follows: –
1. The Ex-parte application, motion on notice and all other court processes were issued for service outside the jurisdiction of this Honourable Court without the leave of court for the issuance of the processes. The Judgment Debtor/Applicant was not given the mandatory thirty (30) days to respond to the processes before a hearing date was fixed by the court.
In reaction to this application, the Respondent filed a counter affidavit of eight paragraphs. The Application was heard on the 16th December, 2008 and in a reserved and considered ruling which was delivered on the 16th March, 2009, Auta J. held that the Respondent had by paragraph 4 of the motion ex-parte applied for leave to serve the exparte order and the motion on notice and all other processes to be issued in this matter on the Judgment Debtor at their Head office in Lebanon by DHL Courier Services. The learned trial Judge further held that as far as the law is concerned, the Respondent had sought and obtained the required leave to serve all Court processes on the Judgment Debtor abroad as such there was proper service.
On the issue of the mandatory 30 days between the date of service of the processes and the hearing date, the trial Judge held as follows: –
‘Clearly the Judgment Debtor was not given the required 30 days to enter appearance and to defend the action. The Judgment Debtor has not complied with the said requirement, but it is enjoined on all courts to do substantial justice and not technical justice. The failure to grant the Judgment Debtor the required 30 days is an irregularity which the court can rectify by the provisions of Order 3, Rule 1 & 2 of the rules of this court. The Judgment Debtor has been served and a counsel entered appearance on his behalf. The Judgment Debtor did not tell this Court how the non-compliance with 30 days notice has prejudiced him. The Court holds that this is an irregularity and will not make the processes filed null and void. But in the interest of justice since the Judgment Debtor is rightly insisting in the requisite 30 days notice (sic) The court grants the Judgment Debtor 30 days from today to enter appearance and to defend the case in the interest of justice.’ (The ruling is at pages 309-321 of the record of this appeal).
The Appellants are unhappy with the ruling. Being aggrieved they have brought this appeal. Their notice of appeal dated 30th March, 2009 and filed the same day contains two grounds of appeal which I reproduce hereunder as follows:-
‘The learned Judge erred when he held that,It is clear from the content of paragraph 4 of the Motion Ex-parte that the Plaintiff applied for leave to serve the Ex-parte order and the Motion on Notice and all other processes to be issued in this matter on the Judgment Debtor at their Head Office in Lebanon by DHL Courier Services. The Court granted the said prayer on 21/1/08. As far as the law is concerns, the Plaintiff has sought obtained the leave of the Court to serve and issue the Courts processes on the Judgment Debtor abroad. They are therefore proper (sic) served.
PARTICULARS OF ERROR
(i) A plaintiff is mandatory required by law to obtain leave to issue an originating process which is to be served out of the jurisdiction.
(ii) By virtue of governing law processes commencing registration and enforcement of a foreign judgment are originating processes to be treated as writ of summons.
(iii) It is well settled that failure to fulfill a condition precedent to the institution of an action is fatal, and robs the Court of jurisdiction.
(iv) the Judgment Creditor/Respondent only applied for and was granted leave to serve out of jurisdiction, as opposed to issuance of the originating process commanding a foreign defendant to submit to jurisdiction.
(v) The issue before the court was one of issuance and not service, yet learned trial judge concluded only that there was proper service’.
In line with the relevant rules of this Court, parties filed and exchanged briefs of argument. The Appellant formulated only one issue for determination of this appeal at page 2 of its brief of argument dated and filed on the 13th July, 2009. The sole issue reads as follows: –
‘Whether the Court below was right in assuming jurisdiction over the matter’.
The Respondent however formulated two issues for determination of this appeal at page 6 of its brief of argument dated and filed on the 12th of August, 2009. These issues are hereunder reproduced as follows:-
‘1. Whether the court processes in the proceedings were validly issued and served on the Appellant as required by law.
2. Whether there was a need, and non-compliance with the requirement, to give the Appellant a 30 days notice of the processes served, as to deprive it of its right to fair hearing.
The Appellant reacted to the Respondent’s brief of argument by its reply brief dated and filed on the 26th August, 2009.
Before I delve into the submissions of counsel on the respective issues formulated by parties, I will like to consider the objection raised and argued at pages 5-6 of the Respondent’s brief of argument to the competence of the sole issue formulated by the Appellant and the Appellant’s reaction to the objection in its reply brief.
Mr. Olumide Aju, learned counsel for the Respondent submitted that the sole issue for determination of the appeal as formulated by the Appellant in this appeal does not arise from any of the grounds of appeal and it is therefore incompetent and should be struck out along with all the argument canvassed thereon. In a further argument, learned counsel submitted that the issue of jurisdiction never arose out of the argument canvassed at the lower Court and was therefore not one of the issues decided by the lower court. According to the learned counsel, none of the two grounds of appeal relates to the question of want of jurisdiction of the lower Court. Learned counsel then cited the authority in Enemuo v. Duru (2004) 9 NWLR (Pt. 877) 75 at 101 where Fabiyi, J.C.A. (as he then was) held: –
‘Lastly on issue of jurisdiction, the Appellant tried to rake up a point that the petition is not in tune with paragraph 4 (7) of the 1st Schedule to the Act. I am unable to see any ground of appeal which relates to this point. An issue for determination in an appeal must be based on a ground of appeal. An issue cannot just emerge from the blues. To my mind the issue is incompetent and deserves no real consideration’.
Learned counsel also cited the decision in Comptoir Commercial & Ind. S.P.R. ltd v. Ogun State Water Corporation & Anor. (2002) 9 NWLR (Pt. 773) 629 at 659 to buttress his submission.
Dr. Ekwueme and Mr. Olaniwun Ajayi, learned counsel for the Appellant disagreed with the submissions of the learned counsel for the Respondent on this score. According to them, the issue of jurisdiction was sufficiently raised before the lower Court because the motion on notice dated 2nd December 2008 substantively challenged the jurisdiction of the lower Court.
In a further argument, learned counsel submitted that the particular (iii) of the first ground of appeal clearly stated that the lower Court was robbed of its jurisdiction in the following words: –
“It is well settled that failure to fulfil1 a condition precedent to the institution of an action is fatal, and robs the court of jurisdiction”.
Learned counsel urged this Court to hold that the particulars of the ground of appeal is part of the ground of appeal and that ground of appeal expressly shows that the jurisdiction of the lower Court was been challenged. In support of the submission herein, learned counsel cited Ante v. University of Calabar (2001) 3 NWLR (Pt. 700) 239 at 253 paragraph G, where this Court stated as follows: –
“It is trite that the particulars of a ground of appeal form part of the ground of appeal. In other words, as particulars of a ground of appeal are part and parcel of the ground of appeal there can be no question that the complaint given in the particulars are to be regarded as mere addendum. The particulars of a ground are there to support and explain further the complaint raised in the ground of appeal”.
Still in argument, learned counsel submitted that in the likely event that this Court determines that jurisdiction was not expressly stated in the Appellant’s grounds of appeal, the grounds of appeal will not be incompetent as long as it gives the other side a reasonable idea of the substance of the appeal. In support learned counsel cited Hambe v. Hueze (2001) 4 NWLR (Pt. 703) 372 at 385-386 paragraphs H-A, where the Supreme Court said:-
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the court will look at the form rather than the substance.
The prime purpose of the rules of appellate procedure… that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely; that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information to the other side of the precise nature of the complaint of the appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding that it did not conform to a particular form”.
In a final argument on this preliminary issue, learned counsel for the Appellant submitted that the Appellant complied with the requirements of the rules of this Court as relates to formulation of grounds of appeal which is solely the measure for determining whether a ground of appeal is incompetent. Learned counsel then urged this Court to disregard the argument of the Respondent on this point and hold that the issue raised in the Appellant’s brief is incompetent. Here the urge by the learned counsel for the Appellant on the Court to hold that the sole issue raised in their brief is incompetent seems strange to me. If that is a slip, it is a very expensive one. By their training, counsel are taught to be careful in legal draughting. This is so because a word wrongly used is capable of changing the fortune of the party for whom the word is used. This is what learned counsel for the Appellant said at page 4 line 15: –
“The Appellant thus urges this honourable Court to disregard the argument of the Respondent on this point and hold that the issue raised in the Appellant’s brief is incompetent”
If the Appellant’s counsel agreed with the Respondent’s counsel that the issue is incompetent, there is then no need for extensive argument in the reply brief by the Appellant’s counsel. Be that as it may I have perused the argument put forward by learned counsel for the Respondent on the incompetency of the sole issue formulated by the Appellant. I am of the firm view that the competence of the Appellant’s grounds of appeal were never under attack by the Respondent. Rather the Respondent’s argument is that the competent grounds of appeal were abandoned because the only issue formulated by the Appellant did not arise from the said grounds of appeal. To that extent therefore the case of Hambe v. Hueze (Supra) is cited out of context. That authority deals solely with the grounds of appeal.
The law is settled that appeals in this Court are argued on the basis of the issues formulated from the grounds of appeal and not on the basis of the grounds of appeal. See Order 17 rules 2 and 10 of the Court of Appeal Rules 2007.
In Khalil v. Yar’Adua (2003) 16 NWLR (Pt. 847) 446 at 479 paragraph G-H, this Court said:-
“Again, no issue from the issues formulated by the Appellant seems to cover that ground. It is trite law that any ground of appeal which is not covered by an issue for determination is deemed abandoned and liable to be struck out”.
See Gbade v. Gbafe (1996) 6 NWLR (Pt.455) 417; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373 at 422; Onifade v. Olayiwola (1990) NWLR (Pt. 161) 130 at 175; UAC (Nig) Ltd. v. Global Transport SA (1996) 5 NWLR (Pt. 448) 291.
The Appellant has admitted that the particulars to the 1st ground of appeal have sufficiently raised the issue of jurisdiction. By that submission therefore, only the 1st ground of appeal is supported by the sole issue formulated by the Appellant. I will therefore spare that issue as having arisen from the first ground of appeal. No issue is formulated by the Appellant in support of the 2nd ground of appeal. Since no issue has been formulated from the 2nd ground of appeal, that ground is deemed, abandoned and liable to be struck out. See Ibiyemi v. FBN Plc (2003) 17 NWLR (Pt. 848) 196 at 205-206 paragraph G-A; Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) 446.
Accordingly the 2nd ground of appeal which complained about the judgment debtor not given 30 days to enter appearance and defend his case and the argument canvassed thereon are hereby struck out.
Now I will proceed to consider learned counsel’s argument in support of the sole issue for determination of this appeal. Even at the risk of repetition, I hereunder reproduced that issue as follows: –
‘Whether the Court below was right in assuming jurisdiction over the matter.
In support of this issue, Dr. Ekwueme and Olaniwun Ajayi, learned counsel for the Appellant submitted that it is trite law that where an originating process is to be served outside jurisdiction, a Plaintiff must obtain leave to issue the originating process. In a further argument, learned counsel submitted that Order 4 of the Reciprocal Enforcement of Judgments Act Cap 175, Laws of the Federation of Nigeria 1958 prescribes that a petition or motion for leave to register a foreign judgment is an originating process and is to be served as a writ, and as such the Respondent herein ought to have obtained leave to issue the motion prior to serving same out of the jurisdiction of the Court below. Still in argument learned counsel submitted that Order 7 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000 provides that no originating summons which, or notice of which, is to be served outside jurisdiction shall be issued without the leave of the Court. Learned counsel then contended that the ruling on appeal recognized the fact that the Respondent’s motion on notice dated 14th November, 2009 constitutes an originating process and that the Respondent was obliged to obtain leave of Court to issue it. On prayer 4 on the Motion Exparte, learned counsel insist that, that, prayer was for an order granting leave to the judgment creditor to serve the ex-parte order and that is not the same thing as leave to issue the originating processes. IN aid learned counsel cited The owner of the Arabella v. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182 at 206 paragraph D where the Supreme Court held that issuance of civil process and service of same are distinct though interrelated steps in civil litigation.
Finally on this issue, learned counsel submitted that the failure of the Respondent to obtain leave to issue a writ on the Appellant outside the jurisdiction of the lower Court renders the motion on notice dated 14th November, 2008 defective and the suit a nullity. In aid learned counsel cited Nwabueze v. Obi-Okoye (1988) 3 NSCC (Vol.19} 53 at 64 paragraphs 30-45 or (1988) 4 NWLR (Pt. 91) 664 at 686-689. On the whole learned counsel urged this Court to strike out the respondent’s motion on notice dated 14th November, 2008.
In his reaction to the submission of learned counsel for the Appellant, Mr. Olumide Aju, learned counsel for the Respondent submitted that the requirement to obtain leave to issue and serve a process is regulated by the rules of Court, and applies only in respect of originating processes. Such originating process is limited to petitions, writs and summons filed to commence or initiate an action and that any other process filed other than the initiating process is not an originating process. In a further argument, learned counsel submitted that the processes served on the Appellant at the lower Court were not originating processes and were therefore properly issued and served in line with the provisions of the law. Finally learned counsel urged this Court to hold that the processes served on the Appellant in this case were properly issued and served in accordance with the law.
I do agree with the submissions of the learned counsel for the Respondent that the processes that were ordered to be served on the Appellant (Judgment Debtor) are not originating processes as vehemently argued by the learned counsel for the Appellant. The decision in Nwabueze & Anr. V. Obi-Okoye is distinguishable from the instant case. The issue in controversy in that case was the issue of writ of summons, an originating process, whereas the order that was made by the lower Court had nothing to do with originating process. There is also no provision for a judgment debtor against whom an application for registration of judgment is made to apply for the originating processes to be set aside. This is so because registration of foreign judgment can be made upon an ex-parte application of the judgment creditor or on motion on notice. Where it is made on motion ex-parte, the judgment debtor may not be served. However a Judge seized with that application has the discretion to direct that the judgment debtor be put on notice. Whether the registration of foreign judgment is made upon an ex-parte application or a motion on notice where the judgment debtor did not make a defence, such judgment debtor shall not be barred from bringing an application to have the registration set aside. In Shona-Jason Ltd v. Omega Air Limited, (2006) 1 NWLR (Pt.960) 1 at 43 paragraph G – page 44 paragraph B this Court, per Onnoghen, J.C.A. (as he then was) held: –
‘From the above provisions, it is clear that the procedure for registration of a foreign judgment to which the ordinance applies, is to be upon a petition made ex-parte or on notice to a Judge.
Where the said petition is made ex-parte, the Judge may direct notice to be served on the judgment debtor , as in the present case. Now when the Court is satisfied, it then registers the judgment and an order to that effect is drawn up and when the said order is made upon a petition on notice (as in this case) the order shall be served on the judgment debtor. On the other hand, when the order is made upon an ex-parte petition, there is no provision that the same shall be served on the judgment debtor. The rules also require the order granting leave to register the judgment to state the time within which the judgment debtor is entitled to apply to set aside the registration. Finally the judgment debtor is empowered, at any time within the time limited by the said order granting leave to register the said judgment and after service on him of the notice of registration of the judgment to apply by petition to a judge to set aside the registration’.
In Shona-Jason Ltd v. Omega Air Ltd (Supra), it is clearly stated that the laws applicable to the registration of foreign judgments are:
1. The Reciprocal Enforcement of Judgment Act, 1922 Cap.175, laws of the Federation of Nigeria and Lagos, 1958
2. Foreign Judgments (Reciprocal Enforcement) Act, Cap 152, Laws of the Federation of Nigeria 1990; and
3. the rules of Court made pursuant to Section 6 of the Reciprocal Enforcement of Judgment Act, Cap. 175 of the Laws of the Federation of Nigeria 1958 which provides in Sections 1(1) and (2) as follows: –
‘1(1) Any application under s. 3(1) of the Reciprocal Enforcement of Judgment Ordinance for leave to have a judgment obtained in a superior Court in any part of Her Majesty’s Dominions outside Nigeria, to which the ordinance applies, registered in a High Court of Nigeria shall be made by petition ex-parte or on notice to a Judge.
(2) If the application is made ex-parte, the Judge to whom it is made may direct notice to be served on the judgment debtor’.
The originating process before the lower Court was the motion ex-parte and the Court was not under obligation to serve same on the Judgment Debtor. The subsequent order made upon the application ex-parte and the motion on notice of 14th November, 2008 are not originating processes and were therefore properly served. The only remedy available to the judgment Debtor is to bring an application to set aside the order of registration and the success of such application must be dependent upon good cause.
In all therefore I find no good reason to disturb the ruling of the lower Court. I find the appeal lacking in merit.
Accordingly, the sole issue is resolved in favour of the Respondent and the ground of appeal upon which it is formulated is hereby dismissed. The Respondent is entitled to the cost of this appeal which I assess at N30,000.00 against the Appellant.
IBRAHIM M. M. SAULAWA, J.C.A.: I have read before now, the lead judgment prepared and just delivered by my learned brother Galinje, J.C.A. I concur with the reasoning and conclusion therein contained, to the effect that the appeal is devoid of merit and same is hereby dismissed by me.
I abide by the order of cost of N30,000:00 awarded in favour of the Respondent, against the Appellant.
REGINA OBIAGELI NWODO, J.C.A.: I have been privileged to read the draft of the Judgment just delivered by my learned brother, Galinje J.C.A. I agree with the reasonings contained therein and the conclusion that this Appeal lacks merit.
Where a statute specifically stipulates the manner of commencing or initiating an action in relation to specified Reliefs then the commencement of an action by such form or process becomes the originating process. In the instance case, the originating process was the motion exparte which is the form of commencement specified under The Reciprocal Enforcement of Judgment Act, Cap 175 of the Laws of the Federation of Nigeria 1958.
The complaint of the Appellant that the originating process was not properly issued and served is not correct. The originating process was the Exparte Application that initiated the action in accordance with the Rules. This appeal is devoid of merit and accordingly dismissed. I abide by the order as to cost.
Appearances
Dr. Ekwueme and Mr. Olaniwun Ajayi For Appellant
AND
Mr. Olumide Aju For Respondent
