NIGERIAN NATIONAL PETROLEUM CORPORATION v. SLB CONSORTIUM LIMITED & ORS
(2014)LCN/7186(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of May, 2014
CA/A/276/M/2012
RATIO
WHETHER FOR THE GRANT OF APPPLICATION FOR EXTENSION OF TIME THE APPLICANT MUST GIVE GOOD REASON FOR THE DELAY
The law is quite settled that an application of this nature is not granted as a matter of mere course or routine See Enyibros Ltd v. N.D.I.C. (2007) 29 NSCQR (Pt. 2) 1553. The applicant must, by his affidavit evidence, give good and substantial reasons for the delay. Secondly, the applicant’s proposed notice of appeal prima facie shows why the appeal should be heard. See Ifekaudu v. Uzoegwu (2008) 34 NSCQR (Pt. 1) 651. Per MOORE A. A. ADUMEIN, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
NIGERIAN NATIONAL PETROLEUM CORPORATION Appellant(s)
AND
1. SLB CONSORTIUM LIMITED
2. THE CHIEF REGISTRAR FEDERAL HIGH COURT
3. UNION BANK OF NIGERIA Respondent(s)
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Lead Ruling): By this motion on notice dated 24/05/2012 and filed on the same date, the applicant is seeking the following relief:
“1. An Order extending the time within which the applicant may seek leave to appeal on grounds of mixed law and facts and/or simply facts against the decision of the Abuja Division of the Federal High Court coram Honourable Justices Idris Auta (hereinafter referred to as “the Court below”) in Suit No. FHC/ABJ/CS/921/2011 (SLB Consortium Limited v. Chief Registrar, Federal High Court & 2 Ors) delivered on 24th January 2012,
2. An Order extending time within which the applicant may appeal on grounds of mixed law and facts and/or simply facts against the decision of the Court below in Suit No. FHC/ABJ/CS/921/2011 (SLB Consortium Limited v. Chief Registrar, Federal High Court & 2 Ors) delivered on 24th January 2012.
3. An Order granting leave to the applicant to appeal on grounds of mixed law and facts and/or simply facts against the decision of the Court below in Suit No. FHC/ABJ/CS/921/2011 (SLB Consortium Limited v. Chief Registrar, Federal High Court & 2 Ors) delivered on 24th January 2012.
The grounds for the application are:
“(i) On 24th January 2012, the applicant, by a motion on notice dated 23rd January 2012, raised an objection to the jurisdiction of the court below to hear the 1st respondent’s originating summons in Suit No. FHC/ABJ/CS/921/2011 on the ground that the suit constitutes an abuse of court process and comprises claims which have been subject of a decade of litigation and is presently statute-barred.
(ii) The said motion on notice of the applicant also sought an order setting aside the ex-parte order of the court below made as far back as 28th November 2011 and effectively preventing the applicant from accessing funds which the applicant is lawfully entitled to by virtue of a Supreme Court judgment to that effect.
(iii) However, the court below directed that the applicant’s motion on notice which raised the [1] issue of jurisdiction, [2] discharge of pending ex-parte orders and [3] abuse of court process shall be heard in conjunction with the 1st respondent’s substantive suit. In effect, the ex-parte order made on 28th November 2011 has been made to abide the determination of the substantive suit without hearing or granting any motion on notice by the 1st respondent to the effect. Despite the fact that the 1st respondent had such a pending motion on notice.
(iv) Being dissatisfied with this decision of the court below, the applicant filed an application on 30th January 2012, seeking leave of the court below to appeal to this honourable court on grounds of mixed law and facts and/or simply facts. Immediately thereafter, the applicant took steps to get a date for the hearing of the said application within 14 days from the delivery of the decision sought to be appealed against.
(v) However, the court below fixed the hearing of the said applicant’s application seeking leave to appeal for the 1st of March 2012. The 1st of March 2012 is not within the 14 days after the date of the decision of the court below sought to be appealed against, and as such, the jurisdiction of the court below to hear the said application became extinguished by operation of law on 1st February 2012.
(vi) The lapse of the jurisdiction of the court below to hear and determine the applicant’s application seeking leave to appeal within the stipulated period of 14 days has necessitated the instant application by virtue of Order 7 Rule 6 of the Rules of this honourable court.
(vii) Prior to the instant application, the applicant had previously filed a similar application to this honourable court on 8th February 2012 which was entered as CA/A/41/M/2012 and subsequently struck out by this honourable court on 23rd May 2012.
(viii) The applicant’s proposed grounds of appeal against the decision of the court below constitute substantial and recondite issues of mixed law and facts which are fundamental to the jurisdiction of the court below to hear this substantive suit of the 1st respondent”
The application is supported with an affidavit of 8 paragraphs and exhibits AU, AU2 and AU3.
The 1st respondent filed a counter affidavit of 9 paragraphs in opposition to the motion.
In obedience to the order of this court directing the parties to file and exchange written addresses, the applicant’s written address was filed on 18/11/2013 and the 1st respondent’s written address was filed on 04/12/2013. The applicant filed a written reply on points of law on 06/11/2013.
The applicant identified the following sole issue for determination:-
“Whether the applicant is entitled to the orders sought in the instant application?”
The issue framed by the 1st respondent as arising for determination is:-
“Whether this is an appropriate case in which this honourable court ought to exercise its discretion in favour of the applicant.”
The parties have summarized the facts of the matter in their respective written addresses. However, for a comprehensive and proper understanding of this application all the paragraphs of the affidavit in its support are hereunder reproduced:
“I, AJOKPAOGHENE UTAKE, Adult, Male, Nigerian Citizen of No. 48, Aguyi Ironsi Street, Maitama, Abuja, do hereby state on oath as follows that:
1. I am a legal practitioner in the Law Firm of Messrs Babalakin & Co., Counsel to the applicant and I am involved in the conduct of this matter by virtue of which I am conversant with the facts thereof.
2. I have the consent and authority of the applicant and my employer to depose to this affidavit, and the facts deposed to hereunder are fact within my personal knowledge, pursuant to my aforesaid employment except where otherwise stated.
3. I was informed by Kabir Akanbi, Counsel seized with the conduct of this matter on 7th February 2012 at 3pm in our offices at No.48, Aguiyi Ironsi Street, Maitama, Abuja during a meeting on this matter and I verily believe him as follows:
i. Following the alleged breach of an agreement sometime in 1999, the applicant and the 1st respondent have been engaged in litigation since 30th June 2000 when the 1st respondent instituted Suit No. FHC/L/CS/645/2000 at the Lagos Division of the Federal High Court (‘trial Court”).
ii. In the course of the said litigation between the parties, the trial court entered judgment in favour of the 1st respondent and upon an application for stay of execution pending appeal by the applicant, the court ordered the applicant to pay the judgment sum of S7,155,053.00 (Seven Million One Hundred and Fifty Five Thousand Fifty Three Dollars) in an interest-yielding account.
iii. In compliance with the said order of the trial court which was subsequently affirmed by the Court of Appeal and the Supreme Court, the applicant deposited the judgment sum with the 3rd respondent in the name of the 2nd respondent.
iv. Subsequently, on 15th April 2011, the Supreme Court, in a considered Ruling in SC/180/2008, struck out the 1st respondent’s claim at the trial court (FHC/L/CS/645/2000) on the ground that same was commenced by an incompetent originating process.
v. The afore-stated Supreme Court Ruling consequentiality entitled the applicant to recover the colossal judgment sum deposited in the 2nd respondent’s bank account and brought an end to litigation between the parties which had spanned for over a decade.
vi. Furthermore, an important effect of the aforesaid Ruling of the Supreme Court is that every cause of action arising out of the alleged breach of the agreement in 1999 has become statute-barred by virtue of the extant Limitation Laws.
vii. In spite of the foregoing, the 1st respondent strangely instituted an action at the court below on 4th November 2011 claiming entitlement to the aforesaid judgment sum which was deposited by the applicant pursuant to an order of court under a suit which has been struck out by the apex court.
viii. The 1st respondent also sought and obtained an ex-parte order of this honourable court on 28th November 2011 to the effect that the 3rd respondent should maintain the status quo and withhold the sum deposited by the applicant under Suit No. FHC/L/CS/645/2000 pending the hearing and determination of the 1st respondent’s motion dated 4th November 2011 seeking similar preservative/injunctive orders.
ix. In reaction to the foregoing, the applicant filed an application on 23rd January 2012 which raised the [1] issue of jurisdiction, [2] discharge of pending ex-parte orders and [3] abuse of court process.
x. On 24th January 2012, the matter came up for hearing for the very first time and the applicant’s counsel urged the court below to first and foremost hear and determine the issue of abuse of court process before hearing the substantive suit or the 1st respondent’s interlocutory application.
xi. The 1st respondent’s counsel however contended that the applicant’s application on the issue of jurisdiction and abuse of court process should be heard along with the substantive suit.
xii. In deciding the issue, the court below endorsed the above contention of the 1st respondent’s counsel and adjourned the matter to 1st March 2012 for hearing of the applicant’s application as well as the substantive suit. This decision of the court below is herewith annexed and marked as Exhibit AU1.
xiii. In effect, the above decision of the court below implies the grant of the 1st respondent’s pending application for interlocutory injunction/preservative order(s) which has not been heard by the court below.
xiv. The said decision of the court below is very prejudicial to the applicant since it is tantamount to an undue preservation of the ex-parte order made by the court below on 28th November 2011 as well as the grant of the 1st respondent’s pending and unheard application for interlocutory injunction and also amounts to a further deprivation of the applicant from its funds in the 3rd respondent’s custody which the applicant is lawfully entitled.
xv. The applicant is convinced that a determination of the issue of abuse of court process before hearing the substantive suit would ensure speedy and effective justice in this matter as the 1st respondent is clearly bent on taking the applicant through another bout of litigation without an iota of law in support of the 1st respondent’s action.
xvi. In view of the adverse and prejudicial effects of the decision of the court below to hear the applicant’s application along with the substantive suit, the applicant seeks to appeal against the said decision before the Court of Appeal upon the grounds of appeal stated in the applicant’s proposed notice of appeal. The proposed notice of the applicant is herewith annexed and marked as Exhibit AU2.
xvii. In furtherance of the applicant’s intention to appeal the said decision of the court below, the applicant filed a motion on notice at the court below dated 30th January 2012 seeking leave to appeal on grounds of mixed law and facts and/or simply facts. A certified true copy of this application is herewith annexed and marked as Exhibit AU3.
xviii. In order to ensure that the court below hears and determines the applicant’s aforementioned application seeking leave to appeal within the statutory period of 14 days from the date of the decision sought to be appealed against, the applicant also filed an affidavit of urgency at the court below on 30th January 2012 in order to demonstrate the urgency and expedient need to hear and determine the application on or before 7th February 2012.
xix. In spite of the applicant’s affidavit of urgency, the court below fixed the applicant’s motion on notice seeking leave to appeal for hearing on 1st March 2012.
xx. The jurisdiction of the court below to hear and determine the applicant’s motion on notice for leave to appeal became extinguished on 7th February 2012 thereby necessitating the instant application to this honourable court.
xxi. Prior to the instant application, the applicant had previously filed a similar application to this honourable court on 8th February 2012 which was entered as CA/A/41/M/2012 and subsequently struck out by this honourable court on 23rd May 2012.
4. I verily believe that the proposed notice of appeal (Exhibit AU2) raises substantial grounds of appeal and creates an exceptional circumstance to justify the grant of this application.
5. I verily believe that the applicant requires the an (sic) of this honourable court extending the time within which the applicant may appeal against the decision of the court below as the applicant is only entitled to appeal against the said decision within 14 days after same was delivered.
6. I verily believe that in making the instant application to this honourable court the applicant has not indulged in any unreasonable delay to disentitle the applicant from the favourable exercise of the discretion of this honourable court in the consideration of the instant application.
7. I verily believe that it is in the interest of justice and dignity of the process of the court to grant this application in view of the peculiar facts and circumstances of this case as highlighted in the instant application.
8. I depose to this affidavit in good faith and conscientiously believing its contents to be true and in accordance with the Oaths Act.”
Similarly, all the paragraphs of the 1st respondent’s counter affidavit are hereby reproduced:
“I, KANAYO P. ONYECHI, Nigerian, Legal Practitioner, of 1 – 9, Berkley Street, Onikan, Lagos do hereby make oath and say as follows:
1. That I am a legal practitioner in Adesokan & Co. Counsel to the 1st respondent and by virtue of my position I am conversant with the facts of this case and I have authority of the 1st respondent and my employers to swear to this affidavit.
2. That I have seen the affidavit of one Ajokpaoghene Utake sworn to in support of the applicant’s motion for leave to appeal to the court of Appeal against the decision of the Federal High Court delivered on January 24, 2012 and I say that paragraphs 3v, xiii, xv, xxi, 4 and 7 of the affidavit in support are inaccurate.
3. That the applicant has filed its counter affidavit and written address in respect of the substantive originating summons at the court below, without any serious controversy on matters of fact and all that remains is for the processes to be adopted and the matter reserved for judgment without the calling of witnesses.
4. That the applicant’s counter affidavit and written address to the originating summons at the court below contain the same objection as in its motion on notice of January 23, 2012.
5. That taking the objection in the motion before the objection in the originating summons will mean hearing at the interlocutory stage, the same issues that has been raised in the substantive matter.
6. That in ordering that the 3rd defendant’s application which was filed on January 23, 2012 be heard along with the substantive originating summons, the court below followed the provisions of Order 29 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009 and the Supreme Court decision in Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 423 at 622 and 629.
7. That the applicant’s motion of January 23, 2012 included an application to discharge the order of interim injunction granted by this honourable court on November 28, 2011 which the applicant preferred to take before the 1st respondent’s motion on notice for interlocutory injunction.
8. That the applicant’s motion and the substantive originating summons both raise the same issue of jurisdiction, and thus they, by law take priority of hearing over the motion on notice for interlocutory injunction; the facts in support of which have not even been contradicted by way of a counter affidavit.
9. That I swear to this affidavit in good faith and in accordance with the Oaths Act.”
The applicant’s written address is of about 11 pages while the written reply on points of law is of 8 pages. The written address of the 1st respondent is also a comprehensive document of 8 pages. I have read the motion papers, including affidavit and exhibits in support thereof and the 1st respondent’s counter affidavit. In addition, I have read the comprehensive written addresses and the legal authorities cited by the learned counsel in this matter.
The law is quite settled that an application of this nature is not granted as a matter of mere course or routine See Enyibros Ltd v. N.D.I.C. (2007) 29 NSCQR (Pt. 2) 1553. The applicant must, by his affidavit evidence, give good and substantial reasons for the delay. Secondly, the applicant’s proposed notice of appeal prima facie shows why the appeal should be heard. See Ifekaudu v. Uzoegwu (2008) 34 NSCQR (Pt. 1) 651.
A perusal of paragraph 3 sub-paragraphs xiv – xxi of the affidavit in support of the application, reveal clearly the reason why the application for leave could not be heard and determined by the lower court until the time allowed expired. These paragraphs also explain the apparent delay in filing this application. The rather very scanty facts deposed to in the 1st respondent’s counter affidavit have not in any way answered the depositions in paragraphs 3 of the applicant’s affidavit.
The proposed notice of appeal was tendered by the applicant as exhibit AU2 reveals prima facie that there is reasonable cause why the proposed appeal should be heard.
To be very brief, having regard to the totality of the facts and circumstances of this application, I am of the view that the application has merit and it ought to be granted. This application succeeds and it is, therefore, granted as follows:-
1. AN ORDER IS HEREBY GRANTED extending the time within which the applicant may seek leave to appeal on grounds of mixed law and facts or simply facts against the decision of the Federal High Court, Abuja Division, presided over by Idris Auta, J. in Suit No. FHC/ABJ/CS/921/2011 (SLB Consortium Limited v. Chief Registrar, Federal High Court & 2 Ors) delivered on 24th January, 2012.
2. AN ORDER IS HEREBY GRANTED extending the time within which the applicant may appeal on grounds of mixed law and facts or simply facts against the decision of the Federal High Court, Abuja Division, presided over by Idris Auta, J. in Suit No. FHC/ABJ/CS/921/2011 (SLB Consortium Limited v. Chief Registrar, Federal High Court & 2 Ors) delivered on 24th January, 2012.
3. LEAVE IS HEREBY GRANTED to the applicant extending the time within which the applicant may appeal on grounds of mixed law and facts or simply facts against the decision of the Federal High Court, Abuja Division, presided over by Idris Auta, J. in Suit No. FHC/ABJ/CS/921/2011 (SLB Consortium Limited v. Chief Registrar, Federal High Court & 2 Ors) delivered on 24th January, 2012.
4. The applicant is hereby ordered to file its notice of appeal as proposed in exhibit AU2 in the Registry of the Federal High Court, Abuja Judicial Division, Abuja, within 14 days from today.
There is no order for costs.
AMIRU SANUSI, OFR, J.C.A.: I read before now the Ruling rendered by my learned brother, Adumein, JCA. I agree that the application has merit and deserves to be allowed and I too hereby do same. I endorse the orders made in the lead ruling.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the ruling just delivered by my learned brother, Adumein, JCA, and agree with the reasoning and conclusion reached by my learned brother. I also abide by the consequential orders made by my learned brother.
Appearances
Miss O. Obayuwana Esq.For Appellant
AND
Adewale Adesokan, Esq. with K. C. Ogbonna Esq. for the 1st Respondent
Both the 2nd and 3rd respondents were served on 14/02/2014For Respondent
