NNPC v. INTERSTELLA COMMS. LTD & ORS (2021)

NNPC v. INTERSTELLA COMMS. LTD & ORS

(2021)LCN/14982(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, February 19, 2021

CA/OW/166/2020

RATIO

APPEAL: PURPOSE OF ORDER 10 RULE 1 OF THE COURT OF APPEAL RULES 2016

Now Order 10 Rule 1 of the Court of Appeal Rules, 2016 inures for the benefit of a Respondent and enables a Respondent to an appeal who believes or conceives that an appeal is not viable or is incompetent to pray the Court of Appeal to terminate the appeal in limine without going into the merit of the appeal. A preliminary objection filed pursuant to Order 10 Rule 1 aforesaid must be capable of bringing the appeal to an end. The ultimate objective is to tell the Court of Appeal that it has no jurisdiction to entertain the appeal for lack of jurisdiction. The purpose is to scuttle or prevent the hearing of an appeal on the ground that the Notice of Appeal is fundamentally defective or fatally incompetent. See:-
1. CHIEF UFIAKAIRO MONDAY EFET VS INEC (2011) 7 NWLR (PART 1247) 423 AT 438F – G and 443H – 444A-B per I. T. MUHAMMED, JSC (now CJN)
2. APC V INEC & ORS (2015) 8 NWLR (PART 1462) 531 AT 553 C – F per I. T. MUHAMMED, JSC (now CJN)
3. NONYE IWUNZE V. F.R.N (2014) 6 NWLR (PT.1404) 500 AT 596 D – E where the apex Court per OLABODE PHODES VIVOUR, JSC said:-
“The Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by rules of Court. The Court of Appeal would lack jurisdiction to hear an appeal if an appellant fails to comply with statutory provisions or the relevant rules of the Court.”
4. KLM ROYAL DUTCH AIRLINES V. JAMILAT ALOMA 2018 NWLR (PART 1601) 473 AT 400 G – H per KEKERE-EKUN, JSC who said:
“The purpose of a preliminary objection is to terminate the hearing of an appeal in limine. It is raised where the Respondent is satisfied that there is a fundamental defect in the appeal that would affect the Courts Jurisdiction to entertain it.”

Therefore, this Court is enjoined to examine and decide the merit or otherwise of a preliminary objection before the consideration of the appeal on the merit because if the objection succeeds, it brings the appeal to an abrupt end. See:
METROLINE (NIG) LIMITED & ORS VS. ALHAJI MUKHTAR MOHAMMED DIKKO (2021) 2 NWLR (PART 1761) 422 At 447 B – C per PETER-ODILI, JSC who said:
“There is no gainsaying that the preliminary objection would be answered before venturing into the appeal as the validity of the appeal has to be first decided to know if there is Jurisdiction in the Court to adjudicate.” PER PETER OLABISI IGE, J.C.A.

PROCESS: INTENT AND PURPOSES OF ALL SPECIE OF COURT PROCESSES

To all intent and purposes all specie of Court Process or Process constitute each of the different methods or modes by which an intending Plaintiff or Applicant can commence an action in the Federal High Court. Any method adopted translates into a Suit. In effect, all Originating Process(es) or Court Process or Process must be initiated and issued or begun in the manner provided for in the Rules of Court or Statute to make the Suit competent before the Court. See;
1. MR. A. ARUEZE & ORS V CHIEF M. A. NWAUKONI (2019) 5 NWLR (PART 1666) 469 AT 480 B – D per BAGE, JSC who said:-
”It will only need to add the position of this Court on its competency to proceed with any matter placed before it. See:- the celebrated case of Madukolu and Ors v. Nkemdilim (1962) 1 All NLR 587 at 594, (1962) 2 SCNLR 341 at 348, paras. E-G. Bairamian F. J. (as he then was) stated the principles which have been accepted in successive case in this Court. “A Court is competent”; he said, when:-
It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of Jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided; the defect is extrinsic to the adjudication.”
2. FRN VS ALH. ABUBAKAR MAISHANU & ORS (2019) 7 NWLR (PART 1671) 203 AT 227 B – C per I. T. MUHAMMAD, JSC (now CJN) who said:-
”Where proceedings are commenced by a motion, that motion is thus, an originating motion in contradistinction to an ordinary motion which follows a substantive case/suit. The learned trial Judge made a finding that “this proceeding is not a continuation of the criminal trial against the 3rd respondent in which trial is dispensed with by this Court. The 3rd respondent’s not put to trial against this proceeding can go on even in the absence of 3rd respondent. Usually, hearing is on affidavit in support and the counter affidavit by the respondent. There are exceptional situations where the motion may be set down and heard with witnesses or with leave, supplement the affidavit evidence beyond testimony. See: Akunnia v. A.-G, Anambra State ors (1977) 5 SC 161.”
(Undermined mine)
3. MOHAMMED MARI KIDA V A. D. OGUNMOLA (2006) 13 NWLR (PART 997) 377 AT 394 F – G per MUSDAPHER, JSC (later CJN) (Rtd.) of blessed memory who said:-
“In my view, the validity of the originating processes in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.” PER PETER OLABISI IGE, J.C.A.

ACTION: EFFECT OF FAILURE TO FOLLOW A PROCEDURE OR CONDITION PRECEDENT LAID DOWN BY STATUTES OR RULES OF COURT BEFORE INITIATING AN ACTION

It is settled law that where there is a procedure or condition precedent laid down or provided by Statute or Rules of Court to be complied with or followed before an action is initiated or commenced, failure to adhere to the laid down procedure will render any action commenced incompetent and the Court before which such suit or action is commenced will lack the jurisdiction to adjudicate or entertain the suit or action. See;
1. MOBIL PRODUCING NIGERIA UNLIMITED VS. OKON JOHNSON & ORS (2018) LR (PA14 NWRT 1639) 329 at 359 A – D per OKORO, JSC who later said:

“As was rightly submitted by the learned counsel for the 1st – 15th respondents, where a statute has provided for the method of doing anything, it must be done in accordance with the express provision of the statute. It is trite law that when a law provides a particular way/method of doing a thing, and unless such a law is altered or amended by a legitimate authority, then whatever is done in contravention of those provisions amounts to a nullity and of no effect whatsoever. See Ude v. Nwara Anor (1993) 2 NWLR (Pt. 278) 638, (1993) LPELR – 3289 (SC); M.P.P.P v . I.N.E.C. & Ors (2015) LPELR – 25706 (SC), (2015) 18 NWLR (PT. 1491) 251; Federal Republic of Nigeria v. Wabara & Ors (2013) LPELR – 20083 (SC), (2013) 5 NWLR (Pt. 1347) 331; Nnonye v. Anyichie (2005) 2 FWLR (Pt. 268) 121, (2005) 2 NWLR (Pt. 910) 623; Ntiero v. NPA (2008) 10 NWLR (Pt. 10094) 129.
As rightly pointed out by the Court below, there is nothing on record to show that the appellant ever applied to the Inspector General of Police in accordance with Section 18(1) of the Police Act of its desire to have the services of Supernumerary Police Officers. Neither is there evidence of any approval by the President to that effect. There is yet no evidence of any directive by the Inspector General to “the appropriate authority to appoint these officers. Moreso, the appellant failed to show evidence of the payment of cost of uniform to the Accountant General including the quarterly payment of the salaries of the 1st – 15th Respondents.”
2. AGIP (NIG) LTD V AGIP PETROLI INTERNATIONAL & ORS (2010) 5 NWLR (PART 1187) 348 AT 419 H TO 420 A – B per ADEKEYE, JSC who said:-
“More important is that where a statute or rule of Court provides for a procedure for the commencement of an action, failure to follow that procedure renders any suit commenced otherwise incompetent.
In the case of Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) pg. 144 A at page 221, the Court decided that:
“It is elementary law that a plaintiff in the commencement of an action, must comply strictly with the provisions of the enabling law. He cannot go outside the enabling law for redress.”
In effect, to commence a suit by a writ of summons instead of originating summons as enacted in a Statute cannot be overlooked as a mere irregularity by virtue of Rule 18 of the Companies Proceedings Rules 1992 as argued by the cross- appellant.”
3. ADAOH UGO-AKADI V FRN (2018) 8 NWLR (PART 1620) 29 AT 48 E – F per GALINJE, JSC.
Section 12 of the Nigerian National Petroleum Corporation Act provides:
“12(1) Notwithstanding anything in any other enactment, no suit against the Corporation, a member of the board or any employees of the Corporation for any act done in pursuance or execution of any enactment or law, or any public duties or authority or in respect of any neglect or default in the execution of such enactment or law, duties or authority, shall lie or be instituted in any Court unless it is commenced within twelve months next after the act, neglect or default complained of or in the case of a continuance of damage or injury within twelve months next after the ceasing thereof.
2. No suit shall be commenced against the Corporation before the expiration of a period of one month after Written Notice of Intention to commence the suit shall have been served upon the Corporation by the intending Plaintiff or his agent, and the Notice shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending Plaintiff and the relief which he claims.” PER PETER OLABISI IGE, J.C.A.

NOTICE: ESSENCE OF A PRE-ACTION NOTICE

The whole essence of a pre-action notice is to lay bare to an intending Defendant by the notice required under a Statute the nature of an action an intending Plaintiff/Claimant has against the proposed Defendant. The intending Claimant must comply with the time stipulated contained in the Statute between the service and commencement of the action. The required notice is also designed to afford the parties the opportunity or likelihood of settling the matter in dispute without recourse to litigation. PER PETER OLABISI IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

NIGERIAN NATIONAL PETROLEUM CORPORATION APPELANT(S)

And

1. INTERSTELLAN COMMUNICATIONS LTD 2. OBI BARTH THOMPSON 3. FEDERAL GOVERNMENT OF NIGERIA 4. CENTRAL BANK OF NIGERIA RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): By their Ex Parte brought in Suit No. FHC/WM/CS/97/2019: (1) INTERSTELLAR COMMUNICATIONS LTD (2) OBI BARTH THOMPSON V (1) FEDERAL GOVERNMENT OF NIGERIA (2) CENTRAL BANK OF NIGERIA before the High Court, UMUAHIA DIVISION filed on 8th October, 2019, the 1st and 2nd Respondents prayed against the 3rd and 4th Respondents and other named corporate entities therein the following reliefs:-
”1. A WORLD WIDE ASSET – FREEZING (MAREVA INJUNCTION) ATTACHMENT, RESTRAINMENT and or TURNOVER ORDER(S) as the case may be, to the tune of $1.6 Billion against all equitable considerations and or Assets of the Federal Government of Nigeria (FGN) and or the Central Bank of Nigeria (CBN) in the hands of their parties named or unnamed, known or unknown to the Applicants at the time of filing this application, including but not limited to funds payable or may later accrue and become payable to the FGN either by payment into a bank anywhere, or transferable to them by any instrument including web transactions, in whatever name such assets are held by their commercial business partners and or

joint venture partners such as: Royal Shell Dutch Petroleum Company and British Petroleum Company and their separate or joint subsidiaries operating under any name anywhere, Exxon Mobil Corporation and its subsidiaries operating anywhere under any name, the Nigerian State owned commercial enterprises including the Nigerian National Petroleum Corporation and its assets anywhere, and any other such and similar entity operating under any name, structure and or colour, PROVIDED either or both the Federal Government of Nigeria (FEN) and or the Central Bank of Nigeria (CBN) are owners or have any sort of interest in SUCH ASSETS, and or where FGN and or CBN can be described as creditors or beneficiaries of such assets temporarily in the hands of the above described third parties, and where either the Federal Government of Nigeria (FGN) and or the Central Bank of Nigeria (CBN) jointly or separately hold titles or have direct and or indirect interests IN SUCH ASSETS, (in personam or in rem as the case may be); by THE ORDER OF THIS HONOVRABLE COURT, all proceeds or funds in hands or the named and unnamed third parties which otherwise would be paid into various accounts

in the name of the CBN on behalf of the FGN, BE FROZEN, ATTACHEDM RESTRAINED and in no manner transacted with but held as security towards satisfaction of equitable remedies the Applicants/Plaintiffs claim against the Respondent/Defendants pending determination of their claims in tort set out in an Originating Motion on Notice for Damages and Financial loses inflicted on the Plaintiffs/Applicants by the Defendants/Respondents, the said damages and financial loses arising from the Respondents, the said disobedience and remaining in contempt of the Supreme Court of Nigeria judgment delivered on 15th December, 2017, in Appeal No: Sc. 500/2014, between CBN V. Interstella Communications Ltd & 3 Ors in favour of the Applicants which (Appeal) CONCLUSIVELY AND FINALLY affirmed the judgment debt sums owed the Plaintiffs by the Defendants arising from a consent judgment entered into by the parties that terminated all disputes arising from Suit No: FHC/VM/CS/95/04 as well as all issues disputed by the parties during the proceedings in Suit No: FHC/UM/M/85/2011 whereby the indebtedness of the Defendants/Respondents to the Plaintiffs/Applicants is not open to further

disputation anywhere, AND for the said third parties to TURNEOOVER an appropriate portion of the said assets to Interstella Communications Limited and Obi Thompson in satisfaction of existing post judgment debts owed them by the Defendants/Respondents arising from the above appeal which is IMMUNE to any form of further disputation by virtue of it being a Supreme Court of Nigeria decision.
2. AN ORDER directing the aforesaid third parties to sequestrate a sum of $900 Million out of the aforesaid sum of $1.6 Billion being the sum the Applicants/Plaintiffs anticipate to recover from the Respondents towards satisfaction of Equitable Remedies the Applicants/Plaintiffs claim against the Respondents/Defendants pending determination of their claims in tort set out in an Originating Motion on Notice for Damages and financial loses inflicted on the Plaintiffs/Applicants by the Defendants/Respondents, the said damages and financial loses arising from the Respondents abiding in Disobedience and remaining in Contempt of the Supreme Court of Nigeria Judgment delivered on 15th December, 2017, in Appeal No. SC 500/2014, between CBN V. Interstella Communications Ltd & 3 Ors

in favour of the Applicants which (Appeal) CONCLUSIVELY AND FINALLY affirmed the Judgment debt sums owed the Plaintiffs by the Defendants arising from a Consent Judgment entered into by the parties that terminated all disputes arising from Suit No: FHC/UM/CS/95/04 as well as all issues disputed by the parties during the proceedings in Suit No: FHC/UM/M/85/2011 whereby the indebtedness of the Defendant/Respondents to the Plaintiffs/Applicant is not open to further disputation anywhere.
3. AN ORDER directing the Respondents to sequestrate within SEVEN days of service and receipt of this Order, that the sum of ($700 Million out of the aforesaid total claim sum of $1.6 Billion) and place same in a compound interest yielding account in the name of the Chief Registrar of the Honourable Court as trustee of the said monies, towards full recovery from the Respondents by the Applicants of their lawful rights and or property in the form of judgment debt sums seized by the Respondents, which (sum) as 2nd September, 2019 stood at $285, 124,422.30 (Two Hundred and Eighty Five Million, One Hundred and Twenty Four Thousand, Four Hundred and Twenty Two

Dollars and Thirty cents) plus interest of $57,695.00 per day, from 3rd September 2019, to the date of payment in full of same by the Respondents to the Appellants – the said debt sum not being in contest by virtue of their being affirmed by the Judgment of the apex Court of the land whereby they are immune to any further appeal and more-so same being a figure already agreed upon with the FGN on and September, 2019.
4. A WORLD WIDE ORDER directing that all equitable considerations and or assets of the Federal Government of Nigeria (FGN) and or the Central Bank of Nigeria ((BN), in rem or in personam, in the sum of $285,124,422.30 (Two Hundred and Eighty Five Million, One Hundred and Twenty Four Thousand, Four Hundred and Twenty Two Dollars and Thirty cents) in the hands of all Third Parties, in rem or in personam, named or unnamed, known or unknown to the Applicants at the time of filing this application, including but not limited to funds payable or may later accrue and become payable to the FGN and CBN either by payment into or from a bank anywhere, or transferable to them by any instrument including web transactions, in whatever name such assets are

held by their commercial business partners and or joint venture partners such as: Royal Shell Dutch Petroleum Company and British Petroleum Company and their separate or Joint subsidiaries operating under any name anywhere, Exxon Mobil Corporation and its subsidiaries operating anywhere under any name, Chevron Oil Corporation and its subsidiaries anywhere no matter by what name it operate, the Nigeria State owned Commercial enterprises including the Nigerian National Petroleum Corporation and its subsidiaries and its assets anywhere, and any other such and similar entity operating under any name, structure and or, structure and or color, PROVIDED either or both the Federal Government of Nigeria (FGN) and or the Central Bank of Nigeria (CBN) are owners or have any sort of interest in SUCH ASSETS in rem or in personam; and or where FGN and or CBN can be described as creditors or beneficiaries of such assets temporarily or may in future be in the hands if the above described third parties; plus interest of $57,895.00 per day, from 3rd September, 2019 to the date of payment in full of same by the Respondents to the Applicants; BE FROZEN (MAREVA INJUNCTION),

ATTACHED, RESTRAINED, AND TURNED OVER to the Plaintiffs within SEVEN DAYS of receipt of service of this Order in satisfaction of debts accruing to the Plaintiffs/Applicants from the Judgment of the Supreme Court of Nigeria delivered on 15th December, 2017 in SC.500/2014, Between CBN v. Interstella Communications Ltd & 3 Ors, the said debt sums not being in contest by virtue of their being affirmed by the Apex Court whereby they are immune to any further appeal.
5. An order directing that the Order be served on the Defendants Respondents who shall within 10 (TEN) days upon service and receipt of this order apply for it to be set aside. upon providing proof that their outstanding obligation to the Plaintiffs/Applicants are fully satisfied by payment of the total accrued debts sums into an account in the name Mr. Obi B. Thompson or as he may designate on behalf of the Plaintiffs but if on the other hand the Respondents elect not to comply with the aforesaid condition precedent to setting Order aside as afore-stipulated, the said Order shall become ABSOLUTE and permanently injunctive thereafter until the debt sums in the said Order 4 are paid in full,

regards being had to the fact that the debt sums are affirmed by the Supreme Court Judgment whereby they are immune to further appeal.
6. An order of this Hon. Court to the effect that IF the Respondents comply with Order 4 above within SEVEN days of service and receipt of this Order, Orders 2 and 3 along with the extra territorial force of this order be stayed; but where the Respondent fails to comply with either Order 4 above within SEVEN days of service and receipt of this order, Order 2 and 3 and the extra territorial effect and force of all the orders shall be activated by the Applicants against the aforesaid worldwide asset of the Respondents without further recourse to this honourable Court whereby all Orders remain injunctive pending the determination and disposal of all issues in contest in the Originating Motion.
7. An order of this Hon. Court to the effect that, as compensation for the costs of litigations which the Applicants would not have had to incur but for the Respondents refusal to obey Court orders served on them, the Respondents pay the Applicants a sum equivalent to 20 per cent of whatever sum this Honourable Court considers

equitable award to the Applicants as remedy for damages prayed for in Order 1 of this Motion.
8. An order directing the Respondents to disclose within SEVEN days upon service and receipt of this order to this honourable Court and to the Applicants and to the Courts in any jurisdiction where the Applicants may seek to enforce this order, all their assets in the hands of third parties.
9. An order directing any aforesaid third party on who this Order may be served, within 10 days upon service and receipt of this Order, to disclose the extent of the defendants’ assets in the hands of the said third parties to this Hon. Court and to the Plaintiffs and to the Court in any jurisdiction where this Order may be enforced.
10. An order directing that service of this order be made on the third parties either by way, courier services, advertisement in a newspaper with national coverage, or by bailiff of the Hon. Court in the jurisdiction. And for such orders or other orders this Honourable Court may deem fit to make in the circumstance of this case.”

The lower Court granted the reliefs sought on the 18th day of October, 2019 as follows:

“UPON READING THE AFFIDAVIT in Support of the Motion sworn “to by Mr. Obi Barth Oyibo Thompson, a Nigerian born dual the United States of America and Nigeria, a male, Christian and Chairman of the 1st Applicant (Interstella Communications Ltd, a Nigerian entity owned by US citizens) and filed in the Court Registry, Umuahia Division.
AND AFTER HEARING O. O. Amuzie Esq., appearing with Bob Chijioke Esq and I. C. Uzor Esq., Counsel for the Plaintiffs/Applicant move in terms of the motion paper.
THE COURT HEREBY ORDERED AS FOLLOWS:
1. That Order 1 is refused.
2. That Order 2 is refused.
3. That Order 3 is refused.
4. That the WORLD WIDE ORDER directing that All Equitable Considerations and or Assets of the Federal Government of Nigeria (FGN) and or the Central Bank of Nigeria (CBN), in rem or in personam in the sum of $285,124,422.30 (Two Hundred and Eighty Five Million, One Hundred and Twenty Four Thousand, Four Hundred and Twenty Two Dollars and Thirty cents) in the hands of all Third Parties, in rem or in personam, named or unnamed, known or unknown to the Applicants at the time of filing this application, including but not

limited to funds payable or may later accrue and become payable to the FGN and CBN either by payment into or from a bank anywhere, or transferable to them by any instrument including web transactions in whatever name such assets are held by their commercial business partners and or Joint venture partners such as: Royal Shell Dutch Petroleum Company and British Petroleum Company and their separate or Joint subsidiaries operating under any name anywhere, Exxon Mobil Corporation and its subsidiaries operating anywhere under any name, Chevron Oil Corporation and its subsidiaries anywhere no matter by what name it operate, the Nigeria State owned Commercial enterprises including the Nigerian National Petroleum Corporation and its subsidiaries and its assets anywhere, and any other such and similar entity operating under any name, structure and or color, PROVIDED either or both the Federal Government of Nigeria (FGN) and or the Central Bank of Nigeria (CBN) are owners or have any sort of interest in SUCH ASSETS in rem or in personam; and or where FGN and or CBN can be described as creditors or beneficiaries of such assets temporarily or may in future be in the hands

of the above described Third parties; plus interest of $57, 895.00 per day, from 3rd September, 2019 to the date of payment in full of same by the Respondents to the Applicants; BE FROZEN (MAREVA INJUNCTION), ATTACHED, RESTRAINED AND TURNED OVER to the Plaintiffs within SEVEN DAYS of receipt of service of this Order in satisfaction of debts accruing to the Plaintiffs/Applicants from the Judgment of the Supreme Court of Nigeria delivered on 15th December, 2017 in SC. 500/2014, Between CBN v. Interstella Communications Ltd 3 Ors, the said debt sums not being in contest by virtue of their being affirmed by the Apex Court whereby they are immune to any further appeal is hereby granted.
5. That this Order be served on the Defendants/Respondents who shall within TEN (10) days upon service and receipt of this order apply for it to be set aside upon providing proof that their outstanding obligation to the Plaintiffs/Applicants are fully satisfied by payment of the total accrued debts sum into an account in the name Mr. Obi B. Thompson or as he may designate on behalf of the Plaintiffs; but if on the other hand the Respondents elect not to comply with the

aforesaid condition precedent to setting Order 4 aside as afore-stipulated, the said Order 4 shall become ABSOLUTE and permanently injunctive thereafter until the debt sums in the said Order 4 are paid in full, regards being had to the fact that the debt sums are affirmed by the Supreme Court Judgment whereby they are immune to further appeal.
6. That Relief 6 is refused.
7. That Relief 7 is refused.
8. That the Respondents are ordered to disclose all their assets in the hands of third parties within SEVEN days upon service and receipt of this order to this honourable Court and to the Applicants, and to the Courts in any Jurisdiction where the Applicants may seek to enforce this order.
9. That all third parties served with this order are hereby ordered to disclose, within TEN days upon service and receipt of this order, the extent of the defendants assets in the hands of the said third parties to this Hon. Court and to the Plaintiffs and to the Court in any Jurisdiction where this Order may be enforced.
10. That the service of this order be made on the third parties either by way of courier services, advertisement in a newspaper

with national coverage, or by bailiff of the Hon. Court in the Jurisdiction.

On 30th October, 2019, FORM 48: NOTICE OF CONSEQUENCES OF DISOBEDIENCE TO ORDER OF COURT was issued against the Appellant.

By their own MOTION ON NOTICE dated and filed on 4th December, 2019, the Appellant applied for extension of time among others to have the Orders/Reliefs granted in favour of the 1st and 2nd Respondents against Appellant by the lower Court on 18th October, 2019 set aside. The Appellant’s application reads thus:-
“MOTION ON NOTICE
BROUGHT PURSUANT SECTION 12 OF THE NIGERIAN NATIONAL PETROLEUM CORPORATION ACT LFN. 2004 ORDER 26 RULE 1, 2 AND 3; ORDER 26 RULE 9 AND ORDER 48 RULE 4 OF THE FEDERAL HIGH COURT RULES, 2019 AND UNDER THE INHERENT JURISDICTTON OF THE HONORABLE COURT.
1. An Order extending the time within which the Applicant may apply to set aside the Ex-parte Order made by this Honourable Court on the 18th day of October, 2019 as it affects the Applicant.
2. An Order setting aside the Ex parte Order made by this Honourable Court on the 18th day of October, 2019 as it affects the Applicant.
3. An order setting aside the

issuance of Form 48 on the Applicant.
And for such other order or orders as the Honourable Court may deem fit to make in the circumstances
Grounds for the application
1. The Nigerian National Petroleum Corporation (hereinafter referred to as the NNPC) is a legal entity with distinct personality its corporate name.
2. The NNPC is body created by statutes that can sue and be sued in its corporate name.
3. NNPC was not a party to this suit and is yet to be made a party in this matter.
4. That the NNPC not being a party, an order cannot be made against it.
5. The NNPC was not issued the pre-action notice in line with Section 12 of the NNPC Act.
6. With respect to the Worldwide Freezing Order extended to the Applicant is neither Just nor convenient.”

The Appellant’s Motion aforesaid was supported by 7 Paragraphs Affidavit sworn to by one EJIKEME WILSON OJI, ESQ as follows:-
“AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE
I, Ejikerne Wilson Oji Esq., Christian, Adult, Male, Nigerian Citizen, and Legal Practitioner of Plot H 174, Tony Monagor Street, Trade Fair Layout, Golf Course Estate, Enugu do hereby make oath

and state as follows:
1. That I am a Legal Practitioner in the Law Firm of Akaraiwe Associates, counsel to the Applicant, by virtue of which I am conversant with the facts of this case.
2. That I have the Consent of both my employer and the Applicant to deposed to this affidavit.
3. That the time required for bringing this application is seven days but same has elapse hence this application.
4. That the period of seven days was too short for the Applicant to obtain the details of this case and brief counsel in respect of same as the Applicant was not a party to this case and did not participate in the hearing of this case.
5. That the delay is regretted as same was not on purpose or deliberate.
6. That as a Lawyer I know the following facts:
a. That the Nigerian National Petroleum Corporation (hereinafter referred to as the NNPC) is a legal entity with distinct personality.
b. That the NNPC is a body created by statute that can sue and be sued in its corporate name.
c. That the NNPC was not a party to this suit and is yet to be made a party in this matter.
d. That the NNPC was not made aware of the

application sought to be made against it until it was served with the Order of Court.
e. That the NNPC not being a party, an order cannot be made against it.
f. That the NNPC was not issued any pre-action notice in line with Section 12 of the NNPC Act.
7. That I make this oath truthfully an conscientiously believing the facts herein deposed to, to be, to the best of my knowledge, true and correct in accordance with the Oaths Act.”

The application by the Appellant was accompanied with Written Address. The 1st and 2nd Respondents through their learned Counsel O. O. AMUZIE, ESQ filed Plaintiffs’ Written Address on 11th December, 2019 in opposition to the Appellant’s Motion.

The application was duly heard and the learned trial Judge gave considered Ruling on 4th February, 2020 wherein learned trial Judge found:-
“The Applicant (NNPC) is a wholly 1st Defendant owned corporate Organization both in shareholding and corporate management and control with the primary role among others of “generally engaging in activities that would enhance the Petroleum industry in the overall interest of Nigeria and…” (Section 5(h) NNPC Act). It is

common knowledge that our economy is primarily financed from the petroleum industry as coordinated by the Applicant with its subsidiaries and Assets crisscrossing the length and breath of Nigeria. It has also the sole responsibility of giving effect to all 1st Defendant’s Joint Venture Agreements with the other Oil Conglomerates – See Section 5(g) of the NNPC Act). The issue of sufficient assets of Defendants within Jurisdiction is immaterial if they have been available. Yet they willfully refused, on the part of Defendants, to comply with the Apex Court’s Order Absolute.
Hence the world wide freezing and allied Orders granted by this Court.
The Plaintiff/Respondent relied heavily on foreign cases in its opposition to the Motion and as earlier cited. These authorities no doubt are persuasive. See Salisu Yahaya v. the State (2002) LPELR-3508 (SC). That does not however derogate from their applicability save where our laws and decisions are to the contrary. There is no doubt that there is a dearth of Judicial decisions on the applicability of Mareva injunction in post Judgment enforcement in Nigeria. I am persuaded by the foreign decisions I resolve

the 2nd issue against the Applicant. ISSUE 3: Whether the Applicant, a nonparty to this suit can be liable to pay the judgment sum or be proceeded against as a contemnor.
The powers of the Court to make freezing orders against third parties was also affirmed in Esai Dangabar v. Federal Republic of Nigeria (2012) LPELR (19732) (CA). I find nothing unwholesome in the grant of the Order of 18th October, 2019. In the applicant’s arguments as in other applications of similar nature involving the said Ex parte order, the applicant chose to ignore Relief 9 of the Order bordering on disclosure which is enough answer to all the applications. All the third parties needed to sincerely disclose and not become a judgment debtor advocate as the applicant portray.
In the absence of compliance with a Court Order and the eventual lapse of a reasonable time, any disobedient person, to the extent of the Court order can be proceeded against in a contempt proceedings. Section 287 of 1999 Constitution as amended makes the decisions of all superior Courts of records to be binding and enforceable by all authorities and person in Nigeria.
I find in

Plaintiffs/Respondents’ favour in resolving Issue 3.
ISSUE 4: Whether the requisite pre-action Notice was issued on the Applicant. Section 12(2) of the NNPC Act provides as follows:-
“No suit shall be commenced against the Corporation before the expiration of a period of one month after written notice to commence the suit shall have been served upon the Corporation.”
Pre-action notice remains what it is, a Notice to them would be adversary of intention to proceed against him in a Court of law with disclosures of prior claims before filing the action.
In this case, there was no claim against the Applicant (NNPC) to warrant a pre-action Notice.
Applicant is only a third party expected to make full disclosures and does not deserve a pre-action Notice.
I so hold. This is not a suit against 3rd party.
I also resolve this issue against the Applicant and I entirely dismiss the application as lacking in merit.”

The Appellant was aggrieved by the Ruling aforesaid and has by her Notice of Appeal dated 14th February, 2020 and filed on 17th February, 2020 appealed to this Court on a lone ground which with its particulars is as follows:-

“Grounds of Appeal:
Ground One – Misdirection
The learned trial Court misdirected itself thus occasioning a miscarriage of justice when it held that there was no claim against the Appellant to warrant pre-action notice.
Particulars:
a. At the behest of the 1st and 2nd respondents in their suit against the 3rd and 4th respondents, the honourable trial Court on October 28, 2019, issued ex parte a world-wide freezing order against several third parties including the Appellant.
b. The appellant filed a motion before the trial Court seeking among other reliefs the following orders:
i. Extending the time within which the applicant may apply to set aside the said Ex Parte Order;
ii. Setting aside the said Ex parte Order;
iii- Setting aside the issuance of Form 48 on the Appellant.
c. Among the premises for the application was the failure of the 1st and 2nd respondent to issue a pre-action notice as stipulated in S. 12 (2) of the NNPC Act before joining the appellant on the world-wide freezing order.
d. In refusing reliefs (ii) and (iii) of our application reproduced in (b) above, the

Honourable Trial Court held that:
i. “The Appellant is only a third party expected to make full disclosures and does not deserve a pre-action notice”.
ii. Pre-action notice “is a notice to a would-be adversary of intention to proceed against him in a Court of law with disclosures of prior claims before filing the action.”
iii. “In this case, there was no claim against the Appellant “(NNPC) to warrant a pre-action notice.”
4. Reliefs sought from the Court of Appeal
a. An Order allowing the appeal and setting aside the Ruling of the Honourable Trial Judge delivered on the 4th day of February 2020.”

The Appellant’s Amended Brief of Argument was dated 11th November, 2020 and filed on 20th November, 2020 but deemed filed on 23rd November, 2020 while the 1st and 2nd Respondents’ Brief of Argument was dated 19th November, 2020 and filed on 20th November, 2020. It was also deemed properly filed on 23rd November, 2020. Appellant filed Reply Brief on 9/11/2020 was deemed filed also on 23/11/2020.

It is here pertinent to state that the 1st and 2nd Respondents incorporated into their Brief of Argument a Notice of Preliminary

Objection contending that the appeal filed by the Appellant is incompetent. The Preliminary Objection reads:
“An order striking out or dismissing the Appeal for being incompetent.
FURTHER TAKE NOTICE that the grounds in support of the Preliminary Objection are as follows:
1. That by taking out this appeal in which the sole objective of the relief sought by the Appellants to frustrate the enforcement of remedy granted by the Supreme Court of Nigeria against the 3rd and 4th Respondents and should the Appellant succeed, the objective relief does not inure to the Appellant but rather to the 3rd and 4th Respondents definitely raises the issue of locus standi of the Appellant to seek such relief that does not belong to it and which at the same time challenges the jurisdiction of this Honourable Court to hear this appeal.
2. That the appeal as presently constituted is incompetent and an abuse of the process of the Court.

Court of Appeal to terminate the appeal in limine without going into the merit of the appeal. A preliminary objection filed pursuant to Order 10 Rule 1 aforesaid must be capable of bringing the appeal to an end. The ultimate objective is to tell the Court of Appeal that it has no jurisdiction to entertain the appeal for lack of jurisdiction. The purpose is to scuttle or prevent the hearing of an appeal on the ground that the Notice of Appeal is fundamentally defective or fatally incompetent. See:-
1. CHIEF UFIAKAIRO MONDAY EFET VS INEC (2011) 7 NWLR (PART 1247) 423 AT 438F – G and 443H – 444A-B per I. T. MUHAMMED, JSC (now CJN)
2. APC V INEC & ORS (2015) 8 NWLR (PART 1462) 531 AT 553 C – F per I. T. MUHAMMED, JSC (now CJN)
3. NONYE IWUNZE V. F.R.N (2014) 6 NWLR (PT.1404) 500 AT 596 D – E where the apex Court per OLABODE PHODES VIVOUR, JSC said:-
“The Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by rules of Court. The Court of Appeal would lack jurisdiction to hear an appeal if an appellant fails to comply with statutory provisions or the

relevant rules of the Court.”
4. KLM ROYAL DUTCH AIRLINES V. JAMILAT ALOMA 2018 NWLR (PART 1601) 473 AT 400 G – H per KEKERE-EKUN, JSC who said:
“The purpose of a preliminary objection is to terminate the hearing of an appeal in limine. It is raised where the Respondent is satisfied that there is a fundamental defect in the appeal that would affect the Courts Jurisdiction to entertain it.”

Arguing the Notice of the Preliminary Objection O. O. AMUZIE Esq., for the 1st and 2nd Respondents stated that the Appellant is only a third party

directed to carry out definite actions as shown in reliefs 4 and 9 granted by the lower Court and that the Appellant has gone beyond its remit as a third party. He stated that the Appellant lacked the locus standi to challenge or bring this appeal as presently constituted because according to him the Appellant is not a Defendant in this case but a mere third party who is not competent to play the role of a defender or advocate for the 3rd and 4th Respondents by seeking to protect their assets in its possession by the manner of this appeal. He relied on the cases of:
1. UBA VS OPTION ONE AGRITRADE (NIG) LTD (2018) LPELR – 43865 CA.
2. OWODUNNI VS. REG. TRUSTEES OF CCC (2000) 6 SC (PT 11) 60
3. NNPC V. FAWEHINMI (1998) 7 NWLR (PT 559) 5988
4. OMOTESHO VS. ABDULLAHI (2008) 2 NWLR (PT 1072) 526 at 545
5. GTB PLC VS. INNOSON (NIG) LTD (2017) LPELR – 42368 (SC)

On the further role of a Garnishee he relied on the case of INTERSTELLA COMMUNICATIONS LTD & ORS supra 350 D G.

To Learned Counsel to the 1st and 2nd Respondents, the Appellant is indirectly soliciting the Court support its act of champerty in which it is fighting

the 1st and 2nd Respondents (Judgment Creditors) in order to protect the assets of the 3rd and 4th Respondents who are judgment debtors to the 1st and 2nd Respondents in its hands for its corporate benefits and thereby negating its solemn duties under Section 287 (2) of the 1999 Constitution. He relied on the case of GAMIOBA V. ESEZI (1961) ALL NLR 584 to contend that the locus standi of Appellant to embark on this appeal has not been established. That the Appellant has not shown the risk its stands to suffer if it loses the appeal whereas according to 1st and 2nd Respondents Learned Counsel, it is the 1st and 2nd Respondents who would lose their only hope of reaping the fruits of the Supreme Court judgment in their favour which the 3rd and 4th Respondents, according to Learned Counsel to the 1st and 2nd Respondents, have hidden in the hands of the Appellant.
He urged the Court to uphold the objection.

In response to the Notice of Preliminary Objection, the Appellant filed Appellant’s Reply Brief and submitted therein that the Appellant is not indebted to the 1st and 2nd Respondents rather it is the 3rd and 4th Respondents who appeared to be

indebted to the 1st and 2nd Respondents. He stated that the Appellant’s position is simply predicated upon Section 12(2) of the NNPC Act LFN since the 1st and 2nd Respondents proceeded against the Appellant in post judgment proceedings (World Wide Asset Freezing Injunction), attachment restrainment and or turn over Order(s), the Appellant is entitled to pre-action notice and that the Federal High Court was robbed of jurisdiction when it issued an Orders affecting the Appellant notwithstanding that the 1st and 2nd Respondents failed to serve the Appellant pre action notice which failure Learned Counsel to the Appellant said he drew attention of the lower Court. He relied on pages 725 -727 vol, 2 of the record and pages 1391 – 1392 vol. 3 of the record.

He submitted that failure to serve the Appellant requisite pre action Notice gave the Appellant the right to bring this appeal, which he said is within the legal rights of the Appellant and gave locus standi to the Appellant.

He conceded that the Appellant has no locus standi to challenge the judgment of lower Court in Garnishee proceeding but failure of 1st and 2nd Respondents to serve the

Appellants prior notice in the action leading to this appeal. That the Appellant having been brought into the case at post judgment stage by way of an order of Court predicated upon a Motion Ex-partes covering sums of money to the tune of $285,124,422.30 plus $57,895.00 per day from 3rd September, 2019 till date of payment in full of the judgment debt affirmed by the Supreme Court, and also to disclose all the assets of the 3rd and 4th Respondents within 7 days and 10 days respectively upon the service of the said Order on Appellant, then, it is well within Appellant’s right to request that pre-action Notice must be served. That the appeal herein was brought about by the failure of 1st and 2nd Respondents to serve Appellant pre action Notice.

Now the complaint of the Appellant is that Orders were made Ex-parte by the lower Court against the Appellant when no pre-action Notice was served on the Appellant. The Appellant relied on Section 12(2) of Nigerian National Petroleum Act. The law is settled that where conditions precedent are put in place to be complied with before an action is commenced against a person or organization and if the procedure is not

followed the person affected can raise the issue in such an action. Any steps taken by the person or organization affected by an order of Court, to have it set aside cannot tantamount to abuse of Court process and the parties affected cannot be said to lack locus standi.
The steps taken by the Appellant before the lower Court to have the Orders made against it set aside is permitted by the Federal High Court (Civil Procedure) Rules 2019 Order 26 Rule 9 (1) and (2) a & b thereof which provide:
“9. (1) where an order is made on a motion ex parte, any person affected by it may, within 7 days after service of it or within such further time as the Court may allow, apply to the Court by motion to vary or discharge it.
(2) The Court may, on notice to the party obtaining the order-
(a) refuse to vary or discharge it; or
(b) vary or discharge it with or without imposing any term as to cost or security, or otherwise, as seems just.”
The Appellant is also supported by Sections 6(6) (b) and 36(1) of the 1999 Constitution of Nigeria as amended all of which provide:
“(6) (6) The Judicial powers vested in accordance

with the foregoing provisions of this section-
(b) Shall extend to all matter between person, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligation of that person.”
(36)(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.
The refusal of the lower Court to set aside the orders made against the Appellant constitutes an appealable decision within the purview of Section 318 (1) of the aforesaid Constitution which defines decision to mean “…in relation a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.”
The appeal filed by the Appellant is the Constitutional and legitimate right of the Appellant pursuant to Section 241 of the Constitution of the Federal Republic of Nigeria 1999 as amended.

Such lawful step taken by Appellant cannot be taken or said to be a clog in the way of the 1st and 2nd Respondents right to enforce the judgment debt given in their favour against the 3rd and 4th Respondents. Their complaint is that the action culminating in the orders made against the Appellant was not initiated in accordance with due process. Whether the appeal has merit or not is another issue.

The 1st and 2nd Respondents Notice of Preliminary Objection has no merit and it is hereby dismissed.

NOW TO THE MERIT OF THE APPEAL
The appeal was heard on 23rd day of November, 2020 when the learned Counsel to the parties adopted their respective Brief of Argument in the appeal.

The Appellant’s learned Counsel IKEAZOR AKARAIWE, ESQ distilled a lone issue for determination as follows:-
“Whether a Pre-action Notice, where statutorily required, is not a fundamental prerequisite against all parties whether third parties or otherwise, in Court proceedings of any shade or hue.”

The learned Counsel to the 1st and 2nd Respondents O. O. AMUZIE, ESQ also formulated an issue for determination thus:-

“Whether there is any claim against the Appellant in the suit before the lower Court to warrant service of a pre-action Notice on the Appellant in the circumstances of this case.”

The appeal will be determined on the question nominated by the Appellant as the 1st and 2nd Respondents’ question for determination coincides with the question distilled by the Appellant.

The Learned Counsel to the Appellant opened his submissions with reference to Section 12(2) of the Nigerian National Petroleum Corporation Act LFN 2004 and the finding of the learned trial Judge on page 1391 – 1392 Vol. Il of the record to the effect that NNPC, the Appellant herein being a third party there was no claim against the Appellant to warrant pre-action Notice and all the Appellant was required to do was to make a full disclosure and does not deserve a pre-action notice.

The learned Counsel to the Appellant defined the word “SUIT” in the context of Section 64(1) of Federal High Court Act and Black’s Law Dictionary 11th Edition to mean any proceeding by a party or parties against another in a Court of law. He also took time to define “proceedings” in the

context of the need for 1st and 3rd Respondents to serve the Appellant Pre-action Notice. He also referred to the Motion Ex Parte which was filed by the 1st and 2nd Respondents.

He submitted that prayers 1, 2, 3, 6, and 7 which he said was renumbered as 4.7.1, 4.7.2, 4.7.3, 4.7.6 and 4.7.7 were refused by the Court while reliefs 4, 5,8, 9 and 10 renumbered 4.7.4, 4.7.5, 4.7.8, 4.7.9, 4.7.10 were granted relying on pages 289 – 301 Vol. I and 1386 – 1392 of Volume 3 of the record. He stated that the said prayers were contained in a Motion Ex Parte and re-established in a Motion on Notice on pages 2 – 9 of Vol. 1 of the record and 1059 – 1090 of Volume 2 of the record. He submitted that from the totality of the orders made against the Appellant and some other third parties, there is conclusive proof that the suit is peculiarly against the Appellant and those third parties, howbeit a post judgment suit and they were not made parties to the main suit.

Further on what “suit” is, learned Counsel to the Appellant relied on the following cases:-
1. COP V OBASI (1976) LPELR – 888 SC per NIKI-TOBI, JSC
2. AKUNNIA V ATTORNEY-GENERAL, ANAMBRA STATE & ORS (1977) LPELR 394 SC.

He submitted that by virtue of Section 12(2) of the NNPC Act a Pre-action Notice is applicable even to post judgment proceedings as long as it became necessary to add the Appellant to the proceedings.

He also had recourse to the Black’s Law Dictionary Page 37 thereof as to what constitutes an “Action”. He submitted that the grant of a worldwide restraining Orders as in the case herein are actions for which Pre-action Notice must be given to the Appellant.

Learned Counsel to the Appellant also went into comparative study of post judgment proceedings and Pre-Judgment Proceedings as to whether they could be divorced from one another. He submitted that this action as initiated by 1st and 2nd Respondents is a separate and distinct action, between the Judgment Creditor and third parties. He also went into what he called the jurisprudence or philosophy behind Pre-action Notice relying on the cases of:-
1. AMADI V NNPC 10 NWLR (PART 674) 76;
2. CHIEF JOHN EZE V DR. COSMAS IKECHUKWU OKECHUKWU (2002) LPELR – 1194 (SC) per UWAIFO, JSC
3. NIGERCARE DEVELOPMENT COMPANY LTD V ADAMAWA STATE WATER BOARD (2008)

LPELR – 1997 (SC);
4. CLIFFORD EBERE & ORS V IMSU (2016) LPELR – 40619 CA.

In conclusion, learned Counsel to the Appellant stated that the Appellant was not a party to the case between 1st and 2nd Respondents and 3rd and 4th Respondent that is Suit: SC/500/2014 – CBN V INTERSTELLA LTD & ORS a garnishee proceedings in respect of debt adjudged against 3rd and 4th Respondents in favour of the 1st and 2nd Respondents. He urged this Court to uphold the appeal and set aside the Worldwide Asset Freezing (Mareva Injunction) Attachment, Restrainment and or Turnover Orders of Federal High Court UMUAHIA delivered on the 18th of October, 2020 and the Ruling refusing to set aside the said orders delivered on 4/2/2020 contained on pages 1386 – 1392 on the premises that no pre-action notice was issued and served on Appellant by 1st and 2nd Respondents contrary to Section 12(2) of NNPC Act. He urged that the appeal be allowed.

In response to the Appellant’s argument, the learned Counsel to the 1st and 2nd Respondents O. O. AMUZIE, ESQ, stated that the 1st and 2nd Respondent’s substantive/new claims in this suit are contained in the Originating Motion

on Notice (pages 1059 – 1285 of the record of appeal). That the claims are only against the 3rd and 4th Respondents whom he referred to as Defendants. According to him there is no claim against the Appellant in the said ex parte application giving rise to the said Ex Parte Orders challenged by the Appellant. That the said Originating Motion and Ex Parte application “are not suits/actions/proceedings against the Appellant and for any of the third parties”. Learned Counsel to the 1st and 2nd Respondents said “the ex parte application is only ancillary enforcement proceeding made in aid of enforcing the said Judgment of the Supreme Court of Nigeria to which Appellant is under a Constitutional duty to help enforce.” He relied on Section 287(1) of the 1999 Constitution. That Section 12(2) of the Nigerian National Petroleum Corporation Act is only applicable where:
(i) a suit is brought against the Appellant as a party and
(ii) a claim is made against the Appellant in such a case.

According to him, the Appellant agreed it was not a party to the case. According to him by paragraphs 6(c) and (d) of the Affidavit in Support of 1st and 2nd

Respondents’ Application and grounds 3 and 4 of the said application on pages 713 and 716 of the records, the Appellant emphatically stated that it was not a party to the suit and that since it was not yet a party, no order could be made against the Appellant and yet Appellant is appealing against the Ruling of the lower Court. That the Appellant is only a third party to the said ancillary post judgment proceeding brought against the 3rd and 4th Respondents.

He stated that by the provisions of Section 12(2) – NNPC Act the suit envisages under the Section is one commenced by originating process which must be served on adverse party and it is only if the said originating process is served upon the Appellant that it could complain of failure to serve pre-action Notice. He relied on the case of NFVCB & ANOR V A. A. ADEGBOYEGA & ORS (2019) 4 NWLR (PT. 1662) 283 AT 298 F.

That the process issued here is not a Writ of Summons but Originating Motion on Notice and that the said processes were not served on Appellant but what were served on Appellants are only the Orders of 18/10/2019 and FORM 48. He stated that no suit was filed against the Appellant.

He relied on the case of CBN VS INTERSTELLA COMMUNICATIONS LTD & ORS SUPRA 325 PARAGRAPH F and MCFOY VS A.A.C (1961) 3 WLR PC 1405 AT 1409. That arguments in paragraph 4.7, 4.10 – 4.16 of Appellant’s Brief are irrelevant as they do not translate to suit against Appellant. According to him the word “suit” as used in the NNPC Act connotes or is used interchangeably with the words “Civil Action” or “Civil Proceeding” relying on Order 2 and Rules 1 – 9 of the Federal High Court (Civil Procedure) Rules 2019 and that the Ex Parte Motion filed by 1st and 2nd Respondents and the Order served on Appellant do not fall under the modes of commencing an action in the Federal High Court. That the Ex Parte Order does not affect the assets of the Appellant. That the said Ex Parte Order of 18/10/2019 is a hybrid Order in the genre of Order NISI in a garnishee proceedings relying on CONTINENTAL TRANSFER TECHNIQUE LTD VS GOVERNMENT OF NIGERIA SUPRA and MERCHANTILE GROUP (EUROPE) AG. V AIYELA (1994) 1 ALL E. R. 110. He opined that third party is like a Garnishee in custody of a judgment debtor’s money and who Court directs to hand over such money to Judgment Creditor and

that the third Party by such Order hands over such money or assets and is discharged from any liability. He relied on the case of ESAI DANGABAR V FRN (2012) LPELR – 19732 CA.

That the Order sought by 1st and 2nd Respondents are for Mareva Injunction. That such Mareva and allied proceedings are exception to the general Rule that an Order cannot be made against a non-party to a suit. He relied on the cases of HONEYWELL FLOUR MILL PLC VS ECOBANK (NIG) LTD (2016) LPELR – 40221 (CA); CBN V INTERSTELLA COMMUNICATIONS LTD & ORS SUPRA 334 F – G, ORDER II RULE 16 of Judgment Enforcement Rules; Esso EXPLORATION & PROD. NIG. LTD VS NIGERIAN NATIONAL PETROLEUM CORPORATION V SDCCS OF NEW YORK AUG. IJ 2017 14 CV 8445.

That there is no law in place that Order No. 4 on the Ex Parte Orders made by lower Court must be on Notice to a third party since all it does is to ask third party to surrender assets of 3rd and 4th Respondents in its custody to 1st and 2nd Respondents.

That the law permitted the 1st and 3rd Respondents to trace and attach assets of 3rd and 4th Respondents without pre-notifying any third party. He relied on Order 36 Rule 1 of Federal High Court Rules 2019

and the cases of FIMHAB LTD VS FRN (2018) LPELR – 43882 CA; and GRIDRXSIME SHIPPING CO. LTD V TANTOMAR-TRANSPORTES MARITIMOS LTD (1994) 1 WLR – 299 AT 310. He also relied on the Ruling of lower Court pages 1391 – 1392 of the record which he said cannot be faulted and he urged this Court to affirm same.

While agreeing with the basis for pre-action Notice as argued in paragraphs 4.18 – 4.19 of Appellant’s Brief, the learned Counsel to the 1st and 2nd Respondents urged the Court to bear it in mind that statutory provision on pre-action notice will not apply to all cases exceptions of which he set out paragraph 5.21 – 5.23 of 1st and 2nd Respondent’s Brief as follows:-
“5.21 While the philosophical foundations for pre-action notice and effect of non-service of same as stated in the cases cited in paragraphs 4.18 – 4.19 of the Appellant’s brief of argument represent the position of law but same apply only to cases where pre-action notice ought and must be served before commencement of a suit which is not the case herein as argued above.
5.22 It is however, submitted that even in cases where service of pre-action notice is

required, they admit some exceptions thereto. The aged lingering notion that the statutory provision on pre-action notice applies to all cases should be dislodged. Such exceptions include:
i) Where irreparable damage or mischief would be done if the prospective Plaintiff was to issue the notice and wait out the statutory period before accessing the Court: INTERNATIONAL TOBACCO CO. PLC V. NAFDAC 50 NTPJD (CA. 2007) 376/2003.
II) Where the requirement of pre-action notice is an impediment to easy accessibility to Court, it becomes unconstitutional such as in cases of enforcement of fundamental rights: NNPC V. EVWORI (2007) ALL FWLR (PT. 369) 1324; SEA TRUCKS NIG. LTD. V. ANIGBORO (2001) 2 NWLR (PT. 696) 159; IGWE v. EZEANOCHIE (2010) 7 NWLR (PT. 1192) 61.
iii) Cases of contract except where the provision as to pre-action notice is incorporated as a term in the contract agreement: WARRI REFINING & PETROCHEMICAL CO. LTD V. GECMEP NIG. LTD (2020) LPELR-49380 (SC); NPA V. CONSTRUZIONI GENERALI FC SPA & ANOR. (1974) 12 S.C. 81; WEMA SECURITIES & FINANCE PLC V. N.A.I.C. (2015) 16 NWLR (PT. 1484) 93.
5.23 It is most respectfully

submitted with respect to paragraph 5.22(i) above that the mischief or irreparable damage the Appellant intends to cause on the enforcement of the said decision of the Supreme Court by insisting or suggesting that it ought to be served a pre-action notice or pre-notified before applying for the said ex parte mareva and allied orders is to unlawfully fret away the assets of the 3rd and 4th in its hands before the said order will be served on it. What a wishful thinking?
What is more? The 1st and 2nd Respondents are not under any legal duty to put the Appellant or any of the third parties on notice of their said post Judgment ex parte application: NTIERO V. NPA (2008) LPELR-2073 (SC). The essential element, characteristics, intent and purpose of ex parte interim order is urgency and emergency. It is a preservatory and pre-emptive measure to prevent a greater damage, harm or loss. It inherently dispenses with all other procedural formalities.
Specifically, an ex parte interim order for freezing or seizure of a Judgment debtor’s assets in the hands of third parties is by nature intended to be a surprise to prevent the maverick debtors from dissipating the assets.

The Court has the discretion to so order in circumstances where it considers it appropriate to do so. Seizure by surprise forecloses the requirement for pre action notice even in cases where it is otherwise needed.”

He submitted that Section 12(2) of NNPC Act only applies to the extent of cases spelt out in Section 12(1) of NNPC Act and nothing more. That it applies only to everything done or omitted to be done under the Act and not otherwise. He relied on the case of WARRI REFINING & PETROCHEMICAL CO. LTD VS GECMEP (NIG) LTD supra per KEKERE-EKUN, JSC.

That pre-action Notice cannot operate to impede Section 287(1) of 1999 Constitution 1999 and that is inconsistent with the Constitution. That Mareva Order on its own is both a pre and post judgment tool that can be utilized as circumstances of a case warrant. He relied on the case of BABANAFT INTERNATIONAL CO. VS S.A.V. BASSATNE & ANOR (1989) 1 ALL E. R. 433.

He urged the Court not to allow the appeal as it will violate the laid down procedure put in place by apex Court to the effect that Party like Appellant should not be allowed to obstruct the 1st and 2nd

Respondents in their efforts to enforce judgment given in their favour relying on the cases of BFI GROUP CORP. V BPE (2012) LPELR – SC 12, 2008 per FABIYI, JSC and CBN VS INTERSTELLA COMMUNICATIONS LTD & ORS SUPRA.

He urged the Court to dismiss the appeal on the following grounds:-
“1. The Appellant lacks the locus standi to institute and maintain this appeal given the circumstances of its application before the lower Court.
2. The Appeal as presently constituted is incompetent and an abuse of Court process.
3. The lower Court was right in holding that the Appellant does not require to be served with a pre-action notice in respect of this matter, the Appellant not being a party thereto and there being no claim against the Appellant.
4. Section 12(2) NNPC Act is not applicable in this case where there is no claim against the Appellant and the Appellant is also not a party to the case.
5. The 1st and 2nd Respondents are not under any legal duty to serve a pre-action notice on the Appellant or pre-notify any of the third parties of their said ex parte application.
6. The constitutional duty imposed on the Appellant to

assist and enforce the decision of the Supreme Court far outweighs any other consideration to the contrary.
7. The Court has powers to make an order against an entity even when no action ties against it, if in the discretion of Court, it is in the interest of justice to do so.
8. The 1st and 2nd Respondent did not seek any order to freeze any asset of the Appellant. The assets caught by the said order belong to the 3rd and 4th Respondents.”

The sole issue for determination borders on whether the Appellant as a Corporation established by NNPC Act ought to have been served a pre-action Notice before the commencement of the 1st and 2nd Respondents Ex Parte Motion/Originating Motion dated and filed on 8th October, 2019. Adjunct to it is whether the said Motion is an originating process meant for service on the Appellant which unless a pre action Notice had been served would be held to be an invalid originating process.

The Motion of the Appellant filed on 4th December, 2019 challenged the Orders made Ex Parte against the Appellant on 1st and 2nd Respondents’ Motion Ex Parte of 8/10/2019. The Orders were made on 18/10/2019. The Appellant

thereby queried the vires or jurisdiction of the lower Court to make the aforesaid Orders when pre-action Notice was not served on the Appellant and when the Appellant was not a Party to this suit commenced by Ex Parte Motion.

A lot of energy has been dissipated on all side on whether this action begun by Ex Parte Motion or Motion on Notice is a suit within the contemplation of Section 12(2) of the NNPC Act or whether it is an originating process analogous to a writ of summons or originating summons as one of the modes of initiating action or proceedings in the Federal High Court.
It is therefore imperative for me to have recourse to ORDER 3 RULE 1 of the Federal High Court (Civil Procedure) Rules, 2019 which provides:-
“1. Subject to the provisions of any enactment a civil proceeding may be begun by writ, originating summons, originating Motion or Petition or by any other method required by other Rules of Court governing a particular subject matter.”
Order 1 Rule 5 defines the words “Court Process” or “process” and originating process as follows:-
”Court Process” or “Process” includes Writ of Summons, Originating Summons, Originating

Motions, Originating Process, Notice, Petition, Pleading, Order, Motion, Summons, Warrant and all document or written communication of which service is required.”
Thus the Motion Ex Parte/Motion on Notice which originated the 1st and 2nd Respondents’ action in which orders were made against the Appellant is a Suit within the contemplation of Federal High Court (Civil Procedure) Rules, 2019 and the law.
“Originating Process” has been defined to mean any Court Process by which a Suit is initiated.”

Court on its competency to proceed with any matter placed before it. See:- the celebrated case of Madukolu and Ors v. Nkemdilim (1962) 1 All NLR 587 at 594, (1962) 2 SCNLR 341 at 348, paras. E-G. Bairamian F. J. (as he then was) stated the principles which have been accepted in successive case in this Court. “A Court is competent”; he said, when:-
It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of Jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided; the defect is extrinsic to the adjudication.”
2. FRN VS ALH. ABUBAKAR MAISHANU & ORS (2019) 7 NWLR (PART 1671) 203 AT 227 B – C per I. T. MUHAMMAD, JSC (now CJN) who said:-
”Where proceedings are commenced by a motion, that

motion is thus, an originating motion in contradistinction to an ordinary motion which follows a substantive case/suit. The learned trial Judge made a finding that “this proceeding is not a continuation of the criminal trial against the 3rd respondent in which trial is dispensed with by this Court. The 3rd respondent’s not put to trial against this proceeding can go on even in the absence of 3rd respondent. Usually, hearing is on affidavit in support and the counter affidavit by the respondent. There are exceptional situations where the motion may be set down and heard with witnesses or with leave, supplement the affidavit evidence beyond testimony. See: Akunnia v. A.-G, Anambra State ors (1977) 5 SC 161.”
(Undermined mine)
3. MOHAMMED MARI KIDA V A. D. OGUNMOLA (2006) 13 NWLR (PART 997) 377 AT 394 F – G per MUSDAPHER, JSC (later CJN) (Rtd.) of blessed memory who said:-
“In my view, the validity of the originating processes in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons

goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.”

The contention of the Appellant is that the condition precedent to institute the suit herein in so far as it affects it was not fulfilled hence the lower Court was bereft of jurisdiction to have entertained the action against the Appellant.

evidence of any approval by the President to that effect. There is yet no evidence of any directive by the Inspector General to “the appropriate authority to appoint these officers. Moreso, the appellant failed to show evidence of the payment of cost of uniform to the Accountant General including the quarterly payment of the salaries of the 1st – 15th Respondents.”
2. AGIP (NIG) LTD V AGIP PETROLI INTERNATIONAL & ORS (2010) 5 NWLR (PART 1187) 348 AT 419 H TO 420 A – B per ADEKEYE, JSC who said:-
“More important is that where a statute or rule of Court provides for a procedure for the commencement of an action, failure to follow that procedure renders any suit commenced otherwise incompetent.
In the case of Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) pg. 144 A at page 221, the Court decided that:
“It is elementary law that a plaintiff in the commencement of an action, must comply strictly with the provisions of the enabling law. He cannot go outside the enabling law for redress.”
In effect, to commence a suit by a writ of summons instead of originating summons as enacted in a Statute cannot be overlooked as a mere

irregularity by virtue of Rule 18 of the Companies Proceedings Rules 1992 as argued by the cross- appellant.”
3. ADAOH UGO-AKADI V FRN (2018) 8 NWLR (PART 1620) 29 AT 48 E – F per GALINJE, JSC.
Section 12 of the Nigerian National Petroleum Corporation Act provides:
“12(1) Notwithstanding anything in any other enactment, no suit against the Corporation, a member of the board or any employees of the Corporation for any act done in pursuance or execution of any enactment or law, or any public duties or authority or in respect of any neglect or default in the execution of such enactment or law, duties or authority, shall lie or be instituted in any Court unless it is commenced within twelve months next after the act, neglect or default complained of or in the case of a continuance of damage or injury within twelve months next after the ceasing thereof.
2. No suit shall be commenced against the Corporation before the expiration of a period of one month after Written Notice of Intention to commence the suit shall have been served upon the Corporation by the intending Plaintiff or his agent, and the Notice shall clearly and

explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending Plaintiff and the relief which he claims.”

The 1st and 2nd Respondents admitted in paragraph 5.04 of their 1st and 2nd Respondents’ Brief of Argument that:
“5.04 The Appellant is only a third party to the said ancillary post judgment enforcement proceeding brought against the 3rd and 4th Respondents. The Appellant was not endorsed as a party in both the Ex Parte application and Originating Motion on Notice.”
Looked at from any angle, the rights and obligations of the Appellant have wittingly or unwittingly been brought into the

disputes of Judgment Creditors/Judgment Debtors relationship existing between the 1st and 2nd Respondents and 3rd and 4th Respondents in a matter that is entirely different in content and context from the fresh suit or action now brought against the said 3rd and 4th Respondents in FHC/UM/CS/97/2019: INTERSTELLA COMMUNICATION LTD & ANOR VS FEDERAL REPUBLIC OF NIGERIA & ANOR wherein the Appellant was and is specifically and mandatorily being requested to carry out mandatory orders vide the grant of Mareva Injunction by lower Court contained on pages 299 303 of record which I have reproduced earlier in this Judgment.
The learned trial Judge regarded the Appellant and all other persons or organizations against whom such Orders were made as “third parties” to the 1st and 2nd Respondents’ Originating Motion though not listed specifically on the Originating Motion but coercive Orders were made against the Appellant. To my mind, the suit herein is also against the Appellant since there are prayers sought against the Appellant which culminated in the Orders herein before reproduced and FORM 48, contempt proceedings already initiated against the Appellant

on the allegation that Appellant is in disobedience of Orders of lower Court. The 1st and 2nd Respondents Originating Motion is a suit commenced not only against the 3rd and 4th Respondents but also against the Appellant without a pre-action notice having been served upon the Corporation as required under Section 12(2) of the Nigerian National Petroleum Corporation Act LFN 2004.
The 1st and 2nd Respondents are statutorily and unequivocally enjoined to mandatorily give the Appellant pre-action notice to initiate a suit against the Appellant. The word “shall” is a command and compulsion to the Respondent to fulfill a condition precedent in order to consummate that action or reliefs sought in the suit. In this case, the 1st and 2nd Respondents failed to give the required pre-action notice, the jurisdiction of the Court to adjudicate on the 1st and 2nd Respondents’ suit/or subject matter is automatically put in abeyance or suspension.
The 1st and 2nd Respondents were/are under a bounden duty to comply with the condition precedent contained in Section 12(2) of the Nigerian National Petroleum Corporation Act 2004 LFN. See;

CHIEF B. E. NNONYE VS ANYICHIE (2005) 1 SCM 133 AT 145;
2. AMADI V NNPC (2000) 10 NWLR (PART 674) 76 AT 110 – 111 per KARIBI-WHYTE, JSC
3. MOBIL PRODUCING NIGERIA UNLIMITED VS LASEPA & ORS (2002) 18 NWLR (PART 798), (2002) LPELR 1887 (SC) 17 per AYOOLA, JSC who said:
“There is here is no dearth of authorities as to the consequence of failure to serve a pre-action notice when such is made a condition precedent for the commencement of a suit. A suit commenced in default of service of a pre-action notice is incompetent as against the party who ought to have been served with a pre-action notice provided such party challenges the competence of the suit.”
4. GODWIN UGWUANYI VS NICON INSURANCE PLC (2013) LPELR – 20092 SC p. 14; (2013) 11 NWLR (PART 366) 546 at 582 D -G per CHUKWUMA – ENEH, JSC who said:-
“Since the appellant’s contract of employment contains such an enabling implied term there can be no question about incorporating the instant provisions of Section 26(2) into the appellant’s conditions of employment thus imposing a duty on the appellant the breach of which is enforceable at the suit of the respondent here being grounded in their

employment relationship. This duty as imposed on the appellant by Section 26(2) simply put is to serve pre-action notice before commencing any actions against the respondent. The word “shall” used in Section 26(2) in articulating this duty shows that it is a compulsory duty and imperative and this has been so expressed, if I may elaborate further, by the use of the words therein as follows:
“No suit shall be commenced against the corporation after written notice of intention to commence the suit shall have been served upon the corporation by the intending plaintiff.”
The failure to serve the Appellant pre-action Notice before the commencement of the suit herein seeking mandatory Orders in Mareva Injunction which are coercive orders against the Appellant renders the 1st and 2nd Respondents’ suit against the Appellant incompetent. The lower Court lacked the jurisdiction or vires to make any Order against the Appellant.
I am not unmindful of the contention of 1st and 2nd Respondents to the effect that the Orders were merely seeking Appellant’s help or duty under Section 287 (1) of the Constitution of the Federal Republic of Nigeria to enforce

judgment given against the 3rd and 4th Respondents. The law is settled that it is the judgment debtor against whom judgment is given that is bound to pay the money and obey same except in Garnishee Proceedings or other procedure for enforcement of judgment under the Sheriff and Civil Process Act. The action instituted here is not one of the numerous procedures and ways laid down under the Sheriff and Civil Procedure Act and Judgment Enforcement Procedure Rules particularly in enforcing monetary judgments. See;
1. CHIEF UJILE D. NGERE & ANOR VS CHIEF J. W. OKURUKET “XIV” & ORS (2014) 11 NWLR (PART 1417) 147 AT 173 C – H per RHODES-VIVOUR, JSC who said:-
“The Court of Appeal granted a perpetual injunction restraining the applicants from laying any claim to the stool of Okan-Ama of Ngo yet while that order still stands the 1st applicant in his affidavit introduced himself as of the Palace of Okan-Ama Ngo. This amounts to disobedience of the orders of the Court of Appeal. The question to be answered is whether the 1st applicant (who is now a contemnor) should be heard and can be entitled to the discretion of this Court?

Section 287(3) of the Constitution reads:
“287(3) The decisions of the Federal High Court the National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the federation by all authorities and persons, and by other Courts of law with subordinate Jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts, respectively.”
The judgment of a Court of competent jurisdiction subsists until upset on appeal. While the judgment subsists every person affected by it or against whom an order is made must obey it even if it appears wrong, Judgments take effect immediately they are delivered and every Court has inherent power to proceed to enforce Judgments at once. The enforcements on delivery can only be interrupted by a stay of execution provided there, is an appeal.
Parties are thus bound to obey Court orders that are clear and unambiguous, notwithstanding the fact that the order maybe wrong. So long as a party refuses to implement or obey a Court order, he would not be given a hearing in any subsequent application.

See Odogwu v. Odogwu (1992) 2 NWLR (PT.225) 10.539; Governor of Lagos State v. Ojukwu (1986) 3 NWLR (PT. 26) P.39.” (Underlined mine).
2. GOVERNMENT OF GONGOLA STATE VS ALHAJI UMARU ABBA TUKUR (1989) 9 SC 105 AT 122 -123 per NNAEMEKA-AGU, JSC who said:-
“In the case of Akunnia v. Attorney – General of State (1977) 5 S. C. 161 at p. 177, this Court came to the same conclusion where it drew a distinction between an executory and a declaratory Judgments. Both must be obeyed but it is only the former that can be executed; such an execution may be stayed. The question is whether the Judgment in this case is among those that were capable of execution.
Now what is the meaning of execution? I think execution simply means the process whereby a Judgment or order of a Court of law is enforced or given effect to according to law. Our Sheriffs and Civil Process Act (Cap 169) Laws of the Federation, 1958, deals elaborately with process for execution that are recognised at law. Just as Judgments can often be executed according to the provisions of that Act or the corresponding Laws of a State; it is only those judgments that are capable of execution that their execution can be stayed.

I therefore wish to begin my consideration of the main issue raised by this appeal by pointing out that although every Judgment of a Court must be obeyed and is effective from the date of its delivery or from such a date as the judgment itself appoints, the method of enforcement of a particular Judgment depends upon the type of Judgment.
In the sum
(i) A judgment/order for payment of money may be enforced by a writ fiery facias, garnishee proceedings, a charging order, a writ of sequestration or an order of committal on a Judgment debtor’s summons.
(ii) A judgment for possession of land may be enforced by a writ of possession, a writ of sequestration or a committal/order.
(iii) A Judgment for delivery of goods may be enforced by a writ of specific delivery or restitution or their value, a writ of sequestration or writ of committal.
(iv) A Judgment ordering or restraining the doing of an act may be enforced by an order of committal or a writ of sequestration against the property of the disobedient person. For these, see Sections 20, 24, 25, 35, 38, 44, 55, 57, 58, 65, 82 and 83 of the Sheriffs and Civil Process Act (Cap. 189) Laws of the Federation – 1958.”

CHIEF M. O. OLATUNJI V OWENA BANK PLC ANOR (2008) 8 NWLR (PART 1090) 668 AT 6781-1 TO 680 A per MUSDAPHER, JSC later CJN (Rtd.) of blessed memory who said:-
“Now, it is agreed by both the appellant and the respondents that the relevant statutory provisions that fall for consideration in this appeal are;
Section 20(1) of the Sheriffs and Civil (Process) Act and Section 20(2) and Order IV Rule 1 (1) and 2 of the Judgment Enforcement Rules made pursuant to Section 94 of the aforesaid Act. The provisions read: –
“Section 20(1)
Any sum of money payable under a judgment of a Court may be recovered, in case of default or failure of payment thereof forthwith or at the time or times and in the manner thereby directed, by execution against the goods and chattels and the immovable property of the Judgment debtor in accordance with the provisions of this Act.
Section 20 (2)
The Registrar on the application of the Judgment creditor shall cause to be issued a writ of attachment and sale whereby the Sheriff shall be empowered to levy or cause to be levied by

distress and sale of goods and chattels, wherever they may be found within the division or district of the Court, the money payable under the judgment and the costs of the execution.”
Order IV Rule I and Rule II Judgment (Enforcement) Rules made pursuant to Section 94 of the Act read.
Rule 1
No writ of possession shall be issued until after the expiration of the day on which the defendant is ordered to give possession of the land, or, if no day has been fixed by the Court for giving possession, until after the expiration of fourteen days from the day which the Judgment is given.”
Now, considering these provisions, the question may be asked when does a judgment to pay a sum of money becomes recoverable. Can a judgment creditor apply for a writ of fifa immediately a judgment is pronounced or must a judgment creditor wait for a default or failure to satisfy the judgment debt or must the Judgment creditor wait for 14 days or 3 days after the judgment? In my view, unless the Court otherwise orders a judgment of Court to pay money takes effect from the day it is pronounced or delivered in Court. However, the Court at the time of making any

judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done. A person directed by a decree or order of Court to pay money or to do any other act is bound to obey the decree or order without any demand for payment or performance, and if no time is therein expressed, he is bound to do so immediately the decree or Order is pronounced.”
The lower Court itself stated that the Orders sought were not backed up by any law or decisions in Nigeria pertaining to the type of enforcement procedure adopted by the 1st and 2nd Respondents after the Supreme Court of Nigeria had found in their favour against 3rd and 4th Respondents in a Garnishee proceedings.
It cannot be said that Appellant is standing in the way of the 1st and 2nd Respondents in their quest to enforce the monetary judgment. The 1st and 2nd Respondents must follow due process and truly identify and ascertain if the monies of the 3rd and 4th Respondents are in the custody or possession of the Appellant. The claims cannot be at large. The 1st and 2nd Respondents must show how much has been recovered vide the garnishee proceedings and

how much is outstanding and whether such monies as could satisfy the debt and which has been proved to be in Appellant’s possession will be enough to settle the debt or part of it. The steps taken against the Appellant are clearly outside the purview of laid down procedure for enforcement of judgment against a third party who is not a judgment debtor.
I am not unmindful of the submissions of the learned Counsel to the 1st and 2nd Respondents to the effect that the subject matter of this action does not fall within Section 12(1) of Nigerian National Petroleum Corporation Act hence Section 12(2) will not apply relying on the case of WARRI REFINING & PETROCHEMICALS CO. VS GECMEP (NIG) LTD (2020) 10 NWLR (PART 1731) 36 AT 59 – 60 D – B per my Lord KEKERE-EKUN, JSC who said:-
“My Lords, it is well settled that in the interpretation of a statutory provision, it should not be considered in isolation or disjointedly, in order to ascertain the intention of the legislature. It must be construed as a whole. See: S.P.D.C. v. Isaiah (1997) 6 NWLR (Pt. 508) 236; Obi v. INEC (2007) 11 NWLR (Pt. 1046) 560; Chime & Anor v. Ude & Ors. (1996)

LPELR – 848 (SC) @ 51 B-C; (1996) 7 NWLR (Pt. 461) 379.
Section 12 of the NNPC Act, 2004 bears the heading Limitation of suits against the Corporation, etc. The type of suits covered by the section are spelt out in Subsection (1) of the section. which provides:
“(1) Notwithstanding anything in any other enactment; no suit against the Corporation, a member of the Board or any employee of the Corporation for any act done in pursuance or execution of any enactment or law, or of and public duties or authority, or in alleged neglect or default in the execution of such enactment or law, duties or authority, shall lie or be instituted in any Court unless it is commenced within twelve months next after the act neglect or default complained of or in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof.”
Sub-paragraph 2, which follows, then provides that no suit shall be commenced against the Corporation before the expiration of a period of one month after written notice to commence legal action shall have been given by the intending plaintiff.
From the provisions set out above, it is

quite clear that the whole of Section 12 covers suits in respect of matters spelt out in sub-paragraph (1). Sub-paragraph (2) is a continuation of the subject matter in sub paragraph (1).
In N.P.A. Construzioni Generali Farsura Cogefar SPA (1974), 12 SC 81, this Court had cause to construe the provisions of Section 97 of the Ports Act, which provide thus:
“No suit shall be commenced against the authority until one month at least after notice of intention to commence the same shall have been served upon the authority by the intending plaintiff or his agent.”
The provisions are no doubt in pari materia with the provisions of Section 12(2) of the NNPC Act. Now, in construing Section 97(2) of Ports Act, this Court also set out the provisions of Sub-section (1)of the Section, which again, is in pari materia with Section 12(1) of the NNPC Act. The Court held, inter alia, at page 83, line 29 to page 84 line 16 as follows:
”We shall now deal with the other point which to our mind does not seem to be well-settled namely whether the kind of statutory privilege which we have been considering is applicable to an action founded upon a contract. In other

words, whether S. 97 of the Ports Act applies to cases of contract. We think that the answer to this question must be in the negative. We agree that the section applies to everything done or omitted or neglected to be done under the powers granted by the Act. But we are not prepared to give to the section the stress which it does not possess. We take the view that the section does not apply to cases of contract. The learned Chief Justice, in deciding this point, made reference to the case of Salako v L.E.D.B. Anor. 20 NLR. 169 where De Commarmond S.P.J. as he then was, construed the provision of Section 2 of the Public Officers Protection Ordinance which is almost identical with S. 97 of the Ports Act end thereafter stated the taw as follows:-
“I am of opinion that Section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done, etc.”
We too are of the opinion that de Commarmond S.P.J. has quite rightly stated the law in the passage of his judgment cited above. It seems to us that an enactment of this kind i.e. S. 97 of the Ports Act is not intended by

the legislature to apply to specific contracts.
The Court held that the section applies to everything done or omitted to be done under the Act. In other words, it applies to those matters specifically referred to in Subsection (1) of the Act. It is for this reason that the Court held that it would be stretching the meaning of the provision too far if it is extended to specific contracts. The Court at page 85 (supra) cited with approval, the decision of the Court of Appeal in Midland Railway Company v. The Local Board for the District of Withington (1882-3) 11 QED 788, per Brett M.R. Page 794. Wherein the applicability of the provisions of Section 204 of the Public Health Act, 1875, which are similar to Section 97 (2) of the Ports Act and Section 12(2) of the NNPC Act, was considered. His Lordship held thus:
“It has been contended that this is an action in contract and that whenever on action is brought upon a contract, the section does not apply. I think that where an action has been brought for something done or omitted to be done under an express contract the section docs not apply; according to the cases cited an enactment of this kind does

not apply to specific contracts. Again when goods have been sold, and the price is to be paid upon a quantum meruit, the section will not apply to an action for the price, because the refusal or omission to pay would be a failure to comply with the terms of the contract and not with the provisions of the statute.”
I am of the considered view that if the entire provisions of Section 12 of the NNPC Act are considered, it becomes clear that the suits to which Sub-sections (1) and (2) relate are those suits in respect of the subject matter clearly spelt out in Sub-section (1).”
(Underlined mine)
At page 63G, my Lord KEKERE-EKUN, JSC concluded as follows:-
“In the final analysis, I hold that the transaction between the parties, being one of simple contract and having not expressly incorporated them as terms of their contract, the provisions of Section 12(2) of the NNPC Act are not applicable the respondent’s suit was property instituted before the trial Court.
(Underlined mine)
Now looking at the provisions of Section 12(1) of the NNPC Act aforesaid, the NNPC will be entitled to protection of pre-action Notice where the

subject matter of the action has nothing to do with simple contract but has to do with any act done or omitted in pursuance or execution of any enactment or law or of and public duties or authority, or alleged neglect or default in the execution of such enactment or law duties or authority….” (underlined mine).
In this fresh suit, the Appellant was accused by the 1st and 2nd Respondents of failing to assist and enforce the decision of the Supreme Court and under Section 287 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended and by extension Sheriff and Civil Process Act which relates to enforcement of judgment debt and its ancillaries. The Appellant was by Order 9 of the Mavera Injunction granted Ex parte by lower Court directed the Appellant to within 10 days upon service and receipt of this Order to disclose the extent of the Defendants’ assets in the hands of the said third parties to the lower Court and to the Plaintiffs and to the Court in any jurisdiction.
There is no jurisdiction in the lower Court to make any such worldwide pervasive and speculative Orders in the absence of pre-action Notice first served

on the Appellant and before Appellant is properly made a Party to the proceedings.
The action is not a Garnishee proceedings and is not within the purview of Sheriffs and Civil Process Act and Judgment Enforcement Rules made thereunder which the 1st and 2nd Respondents accused the Appellant of not complying with.
They complained of disobedience to Court Order made Ex Parte and had proceeded against the Appellant, under Section 72 of the Sheriffs and Civil Process Act Cap 56 LFN 2004, meaning that the Appellant allegedly neglected or defaulted in the execution of such enactment or law.
I am of the solemn view that since there is no contractual relationship between the 1st and 2nd Respondents and the Appellant in respect of any debt, act or commission of the 3rd and 4th Respondents pertaining or relating or culminating in the Judgment Debt against 3rd and 4th Respondents in favour of 1st and 2nd Respondents, the said 1st and 2nd Respondents cannot under any guise seek for claims or reliefs against the Appellant without service of pre-action Notice on the Appellant.
In its Ruling of 4th February, 2020, the trial Court stated that if any of

the third Parties against whom Orders have been made and in particular Relief 9 of the Order, including the Appellant default in complying with same such third party will face contempt proceedings and corning to issue of pre-action Notice learned trial Judge, contrary to his earlier position now said “pre-action notice remains what it is, a Notice to the would be adversary of intention to proceed against him in a Court of law with disclosures of prior claims before filing the action. In this case, there was no claim against the Appellant (NNPC) to warrant a pre-action Notice. Applicant is only a third party expected to make full disclosure and does not deserve a pre-action Notice.”
And yet the trial Court granted coercive orders or reliefs in favour of 1st and 2nd Respondents against the Appellant in a matter the lower Court said it is not a party.
The learned trial Judge erred in law in his findings and conclusion on the Appellant’s Motion seeking to set aside the Ex Parte Order made by the said Court on 18th October, 2019 when he refused to set aside his Orders as they affect the Appellant. The learned trial Judge also erred in law when he failed

to set aside the issuance of FORM 48 on the Appellant when Appellant was not served with pre-action Notice and Appellant was not even a Party to the suit according to him. Having found that Appellant is not a Party to the Suit between 1st and 2nd Respondents and 3rd and 4th Respondents, then the Learned Trial Judge cannot in law make such coercive orders against a person who is not a party to the proceedings.

In the result, the Appellant’s appeal has merit and the lone issue distilled for determination is hereby resolved in Appellant’s favour.

Consequently, Appellant’s appeal is hereby allowed.

The Ruling of the lower Court, the FEDERAL HIGH COURT UMUAHIA delivered on 4th February, 2020 IS HEREBY SET ASIDE.

The Ex Parte Orders of the said Federal High Court granted on 18th October, 2019 as they affect the Appellant ARE HEREBY SET ASIDE. The issuance of FORM 48 against the Appellant IS ALSO SET ASIDE.
There will be no orders as to costs.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Peter Olabisi lge,

JCA, and I am in complete agreement with the reasoning and conclusion contained therein.
I also allow the appeal and abide by the orders made therein.
I make no order as to costs.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; PETER OLABISI IGE, JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

A. AKARAIWE ESQ. with him, T. E. IYOHA-OSAGIE, ESQ. For Appellant(s)

O. AMUZIE, ESQ. – for 1st and 2nd Respondents.
OYIN KOLEOSHO, ESQ. PSC FMOJ – for 3rd Respondent
FESTUS JUMBO, ESQ. with him, ESIRO IGBANOR – for 4th Respondent. For Respondent(s)

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