DOWELL SCHLUMBERGER NIGERIA LIMITED & ORS v. NOAH ANIEKAN & ANOR
(2018)LCN/12491(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of July, 2018
CA/OW/39/2018(R)
RATIO
APPEAL: PRELIMINARY OBJECTION
“Accordingly, a preliminary objection is to be filed only when there is a fundamental defect in the Appellant’s process in an appeal as its purpose is to terminate an appeal, principally on ground of incompetence. Clement Odunukwe Vs Dennis Ofomata & Anor. (2010) LPELR SC 294/2003; Ndigwe Vs Nwude (1999) 11 NWLR (Pt. 626) 314; NEPA Vs ANGO (2001) 15 NWLR (Pt.737) 627. By the nature and purpose of preliminary objection, the procedure is only adopted for the hearing of an appeal and not for any other process. In other words, preliminary objection cannot be raised in normal interlocutory applications which come up in the usual conduct of the business of the Court. Zenith Bank Plc Vs Chief Arthur John &Anor (2015) LPELR 24315 (SC); SPDC Vs Amadi (2011) 14 NWLR (Pt. 1265) 157. Seeking to terminate a notice of motion by way of preliminary objection is unknown to our rules of Court. Such practice has been held by the Apex Court to be outside the contemplation of Order 2 Rule 9 of the Supreme Court Rules, which is akin to Order 10 of the Court of Appeal Rules. It is therefore my view that the preliminary objection raised by the Respondent in challenge of Applicant’s notice of motion, is not proper in law and as such incompetent. (Underlining mine)” PER ITA GEORGE MBABA, J.C.A.
FUNDAMENTAL RIGHT: RIGHT OF PARTIES
“That, in my view, cannot be lawfully done, as to do so, would amount to shutting Appellants/Applicants out and denying them the right to be heard before a decision is taken against them. See Section 36(1) of the 1999 Constitution, as amended, on the need to respect the rights of parties to be heard before a decision is reached against them. Rear Admiral Francis Echie Agbiti Vs Nigerian Navy (2011) LPELR 2944 (SC); A.G. Rivers State Vs Ude & Ors (2006) LPELR 626 (SC); Nwokocha Vs A.G. Imo State (2016) LPELR 40077 (SC); Sylva Vs INEC & Ors (2015) LPELR 24447 (SC).” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. DOWELL SCHLUMBERGER NIG. LTD
2. TRANS-OCEAN SERVICES NIG. LTD
3. SEDCO FOREX NIG. LTD Appellant(s)
AND
1. NOAH ANIEKAN
2. NIGERIA INTERNATIONAL BANK LTD
(FORMERLY CITI BANK LTD) Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Lead Ruling):
Appellant filed a Motion on Notice on 15/2/2018 in this Court, seeking:
(1) An order staying the execution of the garnishee order absolute made by the Honourable Justice A. Lewis – Allagoa of the Federal High Court, Owerri in Suit No. FHC/OW/FJ/04/2017 on 19th January, 2018 pending the determination by this Honourable Court of the substantive appeal filed by the Appellants/Applicants in this appeal.
(2) An order restraining the 2nd Respondent/Respondent from paying the sum of N254,848,476.66 or any other sum at all, from the Account of the 1st Appellant/Applicant with the 2nd Respondent/Respondent, to the Station Registrar of the Federal High Court, Owerri, for onward transmission to the 1st Respondent/Respondent or the 1st Respondent/Respondent’s Counsel, E.B. Ukiri Esq., pending the determination by this Honourable Court of the substantive appeal, filed by the Appellants/Applicants in this appeal.
(3) An order restraining the 2nd Respondent/Respondent from complying with the order of the Hon. Justice A. Lewis Alogoa made on 9th February, 2018, directing the 2nd Respondent/Respondent to pay the sum of N254,848,476.77 or any other sum from the account of the 1st Appellant/Applicant with the 2nd Respondent/Respondent to the Station Registrar of the Federal High Court, Owerri for onward transmission to the 1st Respondent/Respondent or the 1st Respondent/Respondent’s Counsel, E.B. Ukiri Esq., pending the determination by this Honourable Court of the substantive appeal filed by the Appellants/Applicants in this appeal.
(4) An order restraining the 2nd Respondent/Respondent from complying with the undertaking it made in the Federal High Court, Owerri on 9th February, 2018 to pay the sum of N254,848,476.77 or any other sum from the account of the 1st Appellant/Applicant to the Station Registrar of the Federal High Court, Owerri for onward transmission to the 1st Respondent/Respondent or Counsel, E.B. Ukiri Esq?
(5) An order restraining the Hon. Justice A. Lewis Allagoa of the Federal High Court, Owerri from further issuing any process in purported execution or enforcement of the garnishee order absolute he made on 19th January, 2018 in Suit No. FHC/OW/FJ/04/2017 pending the determination by this Honourable Court of the substantive appeal filed by the Appellants/Applicants in this appeal.
(6) An order restraining the Station Registrar of the Federal High Court, Owerri from paying over to the 1st Respondent/Respondent or the 1st Respondent/Respondent’s Counsel, the sum of N254,848,476.77 or any other sum that he may receive or may have received from the 2nd Respondent/Respondent, pending the determination by this Honourable Court of the substantive appeal filed by Appellants/Applicants’.
(7) An order staying the contempt proceedings against the 2nd Respondent, its Managers, Officers, employees or any person in respect of the enforcement of the garnishee order absolute made by the Lower Court in Suit No. FHC/OW/FJ/04/2017, which contempt proceeding is pending in the Federal High Court, Owerri, pending the determination of by this Honourable Court of the substantive appeal filed by the Appellants/Applicants in this appeal.
(8) And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
Appellants/Applicants stated the grounds for bringing the application and swore to an affidavit of 33 paragraphs to support the application, with Exhibits attached. The 1st Respondent filed a Counter-affidavit on 19/2/2018 to oppose the application. And because the 1st Respondent, (Noah Aniekan) did not want this Court to entertain the above Application, he, on 20/2/2018, filed NOTICE OF PRELIMINARY OBJECTION, pursuant to Sections 6 and 243(a) of the 1999 Constitution of Nigeria; Order 6 Rule 4 and Order 10 of Court of Appeal Rules, 2016; Rules 15, 17, 24, 30, 31, 32 and 35 of the Rules of Professional Conduct, against the hearing of the Application, and seeking an Order dismissing the said motion, in limine, for being grossly and irremediably incompetent, and thereby depriving this Honourable Court of the requisite jurisdiction to entertain, and dismissing the same (motion for stay) as same is a gross abuse of Court process.
The grounds for which 1st Respondent predicated the preliminary objection were:
“(i) The appeal upon which the motion for stay of execution is based, having been filed by a non-party to the garnishee proceedings before the lower Court and no leave was obtained before same was filed.
(ii) The Motion is incompetent before the Court of Appeal in the 1st instance.
(iii) The motion is seeking reliefs which this Hon. Court has no power to grant.
(iv) Some of the reliefs sought in the motion neither arise nor derive from the decision of the lower Court and have no nexus with the Notice of Appeal filed against the decision of the Lower Court, but are rather fresh and outside the purview of the grounds of Appeal and reliefs sought in the substantive appeal.
(v) The motion seeks reliefs against persons who are not parties to both the Suit before the Lower Court and the substantive appeal.
(vi) Some of the reliefs sought do not inure to the Appellants as same would confer no benefit on them, nor would same prevent any harm to them.
(vii) Some of the contents of the motion are vexatious, grossly odious to the due administration of justice and in breach of the ethical Rules of Professional Conduct in the legal profession.
The 1st Respondent filed an address on 26/2/18 which articulated the above grounds of the objection. He emphasized that a garnishee proceedings is strictly between the judgment creditor and the garnishee; that the fact that it emanated from the judgment in a Suit in which the judgment debtor was a party, and it is the judgment debtors money that will eventually be paid to settle the debt, does not make the judgment debtor a party to the garnishee proceedings. He relied on the case of FBN PLC Vs FCMB PLC (2014) ALL FWLR (Pt. 751) 1451 at 1478 ? 1478; Denton-West Vs Muoma (2008) ALL FWLR (Pt. 433) 1423 at 1441 – 1442.
Appellants/Respondents filed their written address on 18/4/18, which was deemed duly filed on 15/5/18 to react to the preliminary objection. Counsel stated that the alleged judgment sum emanated from a decision of Federal High Court, Port Harcourt in PHC/802/2004, in which a judgment debt of N80,000,000 was awarded to the 1st Respondent on 29/7/2013 and that there is a pending appeal at Court of Appeal Port Harcourt Division in CA/PH/787/2013 and another appeal at the Supreme Court in SC/170/2017, over some aspect of the case. But despite the pendency of those appeals, the 1st Respondent crossed over to Federal High Court, Owerri to enforce the said N80,000,000 Judgment debt, now increased to over N254, 848,476.77 by 1st Respondent; that the trial Court made the Order, despite the said pending appeals and the fact that the issue emanated from Federal High Court, Port Harcourt, Rivers State.
When this appeal came up on 18/4/18, for the Motion for stay of execution filed on 15/2/2018, 1st Respondent?s Counsel insisted that the preliminary objection be taken, first. The parties therefore adopted their written addresses and urged us accordingly.
RESOLUTION OF THE PRELIMINARY OBJECTION.
Can the 1st Respondent bring a preliminary objection to stop the hearing of the Appellants/Applicants’ motion for stay of execution of the garnishee order absolute, pending the determination of the Appeal against the substantive decision of the Lower Court, given the circumstances of this case?
As earlier stated, 1st Respondent’s position is that Appellants/Applicants cannot bring this motion for stay of execution, because they were not parties to the garnishee proceedings, being the judgment debtors; that the motion was incompetent, and was seeking reliefs which this Court cannot grant, as some of the reliefs sought neither arose nor derived from the decision of the Lower Court, but are rather fresh and outside the purview of the grounds of Appeal. Counsel also argued that the motion by Appellants/Applicants seek reliefs against persons who are not parties to both the Suit before the lower Court and the substantive appeal; that the reliefs sought would not inure to the parties any benefit or injury; that some of the contents of the motion are vexatious and grossly odious to the due administration of justice and in breach of the ethical Rules of Professional Conduct in the Legal Profession.
In my view, the obvious legal implication of this preliminary objection is that the legal issues, raised by the 1st Respondent, as grounds to justify denying Appellants/Applicants the hearing of the motion, also operate against it (preliminary objection), as the same cannot be entertained or discussed, without hearing the application and/or entertaining the appeal. There is no way the said issues or grounds can be resolved, without delving into the substance of the motion and/or the appeal, and without taking the Motion.
How can we stop the Appellants/Applicants from arguing their motion for stay of execution because they are/were not parties to the proceedings at the Lower Court, and had not obtained the leave of this Court to bring the application, or that the motion is incompetent, without our hearing the motion first and considering the issues, considering the obvious facts, that Appellants/Applicants’ names are listed on all the processes at the Court below, and in the Appeal processes, as parties to the Suit and to the Appeal?
That, in my view, cannot be lawfully done, as to do so, would amount to shutting Appellants/Applicants out and denying them the right to be heard before a decision is taken against them. See Section 36(1) of the 1999 Constitution, as amended, on the need to respect the rights of parties to be heard before a decision is reached against them. Rear Admiral Francis Echie Agbiti Vs Nigerian Navy (2011) LPELR 2944 (SC); A.G. Rivers State Vs Ude & Ors (2006) LPELR 626 (SC); Nwokocha Vs A.G. Imo State (2016) LPELR 40077 (SC); Sylva Vs INEC & Ors (2015) LPELR 24447 (SC).
And if it is true that this case arose from a decision of the Federal High Court, Port Harcourt, and appeal against it pending at the Court of Appeal, Port Harcourt Division of this Court, and another appeal pending at the Supreme Court over an order of the Court of Appeal, Port Harcourt, concerning variation of order which directed the payment of the judgment sum of N80,000,000.00 into Court, then there would be need to hear this Motion and the appeal, particularly, how the matter came to Federal High Court, Owerri, and in the sum claimed.
The law generally is that a party cannot be allowed to raise a preliminary objection in this Court to the hearing of a Motion, as there is no provision in our Rules for that. The Rules rather provides for a preliminary objection to the hearing of an appeal ‘Order 10 Rule 1 of the Court of Appeal Rules, 2016. A party is expected to file a Counter affidavit, to oppose a given motion or oppose same on points of law, when argued.’
The Order 10 Rule 1 of the Court of Appeal Rules, 2016, provides for preliminary objection to the hearing of Appeal, and it has always been interpreted to apply, only where a Respondent seeks to invoke the power of the Appellate Court to determine the appeal, in limine, not when he has complaint against one or more grounds of appeal, seeking to strike same out. See Nwaigwe & Anor Vs Amaechi & Ors (2017) LPELR 43080 (CA); SPDC Vs Ogolo & Ors (2016) LPELR 41307 (CA); Adejumo Vs Olawaiye (2014) 12 NWLR (Pt. 1421) 252.
The issue that a preliminary objection cannot lie against a motion was clearly brought out by Her Lordship, Onyemenam JCA,in the case of Egwu Vs Mainstreet Bank Ltd (2017) LPELR 43395 (CA), where she said:
‘Order 10 of the Court of Appeal Rules provides for Preliminary Objection in an appeal. As argued by the Appellant’s Learned Senior Counsel’ there is no place for preliminary objection in Notice of Motions in the Court of Appeal Rules. By the Order referred to, a preliminary objection is an objection to the hearing of an appeal that, if upheld, would render further proceedings before the Court impossible or unnecessary. Preliminary Objection does not seek to address issue(s) or delve into the merits of the appeal nor seek to determine any aspect of the merits of the appeal.
Accordingly, a preliminary objection is to be filed only when there is a fundamental defect in the Appellant’s process in an appeal as its purpose is to terminate an appeal, principally on ground of incompetence. Clement Odunukwe Vs Dennis Ofomata & Anor. (2010) LPELR SC 294/2003; Ndigwe Vs Nwude (1999) 11 NWLR (Pt. 626) 314; NEPA Vs ANGO (2001) 15 NWLR (Pt.737) 627.
By the nature and purpose of preliminary objection, the procedure is only adopted for the hearing of an appeal and not for any other process. In other words, preliminary objection cannot be raised in normal interlocutory applications which come up in the usual conduct of the business of the Court. Zenith Bank Plc Vs Chief Arthur John &Anor (2015) LPELR 24315 (SC); SPDC Vs Amadi (2011) 14 NWLR (Pt. 1265) 157. Seeking to terminate a notice of motion by way of preliminary objection is unknown to our rules of Court. Such practice has been held by the Apex Court to be outside the contemplation of Order 2 Rule 9 of the Supreme Court Rules, which is akin to Order 10 of the Court of Appeal Rules. It is therefore my view that the preliminary objection raised by the Respondent in challenge of Applicant’s notice of motion, is not proper in law and as such incompetent. (Underlining mine)
The above decision, and position of the law, was also applied by my Learned brother, Lokulo-Sodipe JCA, in the case of Nigeria Bottling Co. Ltd Vs Vacu-Nak Beverages (Nig) Ltd: CA/OW/116/2013, delivered on 28/5/2018. And, I think, it should be so, as it simply does not sound reasonable or proper for a party, as in this case, at hand, to just rise up to frustrate the hearing of a motion he thinks is incompetent, relying on grounds that can only be considered at the hearing of the main motion! The objector in such a situation, should rather be patient; allow the motion to be heard, while opposing the same, using the same particulars he would want to use to frustrate the hearing of the Motion. That way the application will be determined, finally, on its merits, in the overall interest of justice to the parties.
In that case of Zenith Bank Plc Vs John & Ors (2015) LPELR 24315 SC, the Supreme Court said, relying on SPDC Vs Amadi (2011) 14 NWLR (Pt.1266) 157 at 192:
‘Preliminary objection is the procedure to be adopted where a respondent opposes to the hearing of an appeal, the purpose of preliminary objection is to terminate the hearing of appeal in limine, either partially or totally? It must be emphasized that by Order 2 Rule 9(1) the procedure is adopted only for the hearing of an appeal and not for any other process.’
This preliminary Objection, therefore suffers the same legitimacy problems and is condemned to the same disability of incompetence, having been taken out under the Order 10 of the Court of Appeal Rules 2016 (among other laws) which is similar to the Order 2 Rule 9 of the Supreme Court Rules.
I dismiss the Preliminary Objection, with cost of N50,000.00 against the 1st Respondent, payable to the Appellants/Applicants.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had a preview of the ruling just delivered by my learned brother, Hon. Justice Ita George Mbaba, JCA. I agree entirely with him. My noble Lord and brother, Mbaba, JCA addressed all the salient points raised and argued in respect of the preliminary objection filed by the 1st respondent herein. I do not intend to add anything thereto. He has said it all. Thus, I am on the same page with my learned brother, that the preliminary objection is heavily laden and weighed down by incompetence which is gross and or monumental. I also dismiss it with costs as assessed in the ruling of my learned brother, Mbaba, JCA.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the ruling just delivered by my learned brother ITA G. MBABA JCA.
I entirely agree with the reasoning and conclusion therein.
I also dismiss the preliminary objection and abide by the order as to costs awarded in the lead ruling.
Appearances:
ONYINYE NDUBUISIFor Appellant(s)
E.B. UKIRI ESQ. WITH HIM, CHIDI B. NWORKA ESQ. FOR 1ST RESPONDENT/RESPONDENT OBJECTORFor Respondent(s)
