OWNERS OF M.T. VENTURER v. NIGERIAN NATIONAL PETROLEUM CORP & ANOR
(2010)LCN/3967(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of July, 2010
CA/L/291/03
RATIO
GROUND OF APPEAL: NATURE OF A GROUND OF APPEAL; EFFECT OF A GROUND OF APPEAL AND THE ISSUES DISTILLED THEREFROM NOT ARISING FROM THE RULING OR CONSTITUTE A CHALLENGE TO THE RATIO OF THE RULING APPEALED AGAINST
An appeal is a challenge against the judgment or ruling of a trial court and is never predicated on what a court has not decided in its judgment or ruling. A ground of appeal must therefore arise from the live issues or must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against. Ground one and the issues distilled therefrom do not arise from the ruling or constitute a challenge to the ratio of the ruling appealed against to the effect that the plaintiffs cause of action accrued on 26/11/91. Consequently ground one and issue one distilled therefrom are incompetent and are hereby struck out. See Okonobor v. Edeqbe Trans. Ltd (2010) 41NSCOR 331 at 339 – 340. Oredovin v. Arowolo (1989) 4 NWLR (PL 114) 172 at 211, Egbe v. Adearasin (1987) 1 NWLR (Pt.47) 1, Oloruntoba-Olu v Abdul-Raheem (2009)39 NSCOR 105. C.E.M.A. Shippins Inc. v. M. T. ‘CINDY GAIA’ & 4 Ors (2007) 4 NWLR (Pt.1024) 222. PER HON. JUSTICE ADAMU JAURO. J.C.A.
JURISDICTION OF COURT: EXCEPTION THE GENERAL PRINCIPLE THAT IN DETERMINING JURISDICTION A COURT IS CONFINED TO WRIT OF SUMMONS AND STATEMENT OF CLAIM
The general principle that in determining jurisdiction a court is confined to writ of summons and statement of claim is subject to exceptions. In appropriate cases the court may look beyond the statement of claim, for instance if objection to jurisdiction in based on motion on notice supported by an affidavit, the court is obliged to consider the motion and the affidavit. See NDIC v. CBN (2002) 7 NWLR (Pt. 766) 272, Ariay Ltd v. Airline Mgmt Support Ltd (2003) 7 NWLR (Pt. 820) 577, A.G. Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645. Owie v. Ishiwi (2005) 1 SC (Pt. 11) 16 at 31-32. PER HON. JUSTICE ADAMU JAURO. J.C.A.
APPEAL: WHETHER APPEALS CAN ONLY BE FOUNDED ON JUDGMENTS AND FINDINGS MADE BY THE LOWER COURT
Appeals are founded on judgments and findings made by the lower court. It does not lie with a party to create a phantom finding and then proceed to appeal against it. This appeal has been a veritable waste of adjudication time. PER RAPHAEL CHIKWE AGBO, J.C.A
JUSTICES
RAHPAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
OWNERS OF M.T. VENTURER Appellant(s)
AND
1. NIGERIAN NATIONAL PETROLEUM CORP
2. PIPELINE & PRODUCTS MARKETING CO. LTD. Respondent(s)
HON. JUSTICE ADAMU JAURO. J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court Lagos, coram E.O. Sanyaolu J, delivered on 3rd March, 2003 dismissing the plaintiffs/appellant’s suit for being statute barred. The facts giving rise to this appeal are as follows: By a charter party agreement dated 3rd June 1988, the 1st respondent hired the appellants vessel MT VENTURER, for an initial period of one year with an option to renew for a further period at the instance of the 1st respondent. In accordance with clauses 8, 48, 49 and 58 of the said charter party, all payments for hire of the vessel were to be made monthly in advance. At the expiration of the agreement, the 1st respondent redelivered the vessel MT VENTURER to the appellant on 26th November, 1991. The appellant as plaintiff instituted this action in the lower court on 10th March, 1998 claiming the sum of US $276,138.75 (Two Hundred and Seventy Six Thousand One Hundred and Thirty Eight US Dollars Seventy Five Cents) being accrued and accruing interest for delayed payments of hire under the charter party. The respondents filed a preliminary objection to the suit based on Section 12(1) and 12(2) of the NNPC Act, challenging the jurisdiction of the court on the grounds that the action is statute barred and the failure of the appellant to give the respondents the statutory one month pre-action notice. The preliminary objection was upheld by the learned trial judge and the appellant’s suit was dismissed.
Distressed by the said ruling the appellant appealed against same vide a notice of appeal dated and filed on 17th October, 2003 pursuant to an order for extension of time granted by this court on 16th October, 2003. The three grounds upon which the appeal is anchored, shorn of their particulars are hereby reproduced thus:-
“GROUNDS OF APPEAL:
1. GROUND 1
The learned trial judge erred in law in holding that the Plaintiffs cause of action accrued on 25/11/92 when it was clear to him that the defendants’ default to pay accruing interest complained of by the Plaintiff, was a continuing damage of injury which only ceased when defendants refused to pay after demand and/or denied liability.
2. GROUND 2
The learned trial judge misdirected himself in law in holding that the 2nd Defendant is a wholly owned subsidiary of the 1st Defendant and established pursuant to Section 6 of the NNPC Act and so could be accorded the same protection given by law to the 1st Defendant/Respondent herein.
3. GROUND 3
The learned trial judge erred in law when, contrary to the evidence before him, he held that the Plaintiffs suit’ was statute-barred as against both the 1st & 2nd Defendants.”
In compliance with the Rules of Court parties filed and exchanged their respective briefs of argument. The appellant’s brief of argument was filed 5th April 2006 though deemed properly filed on 17th October 2007, while the reply brief was filed 17th December 2008 and deemed properly filed on 27th April, 2010.
The respondents brief of argument is dated and filed on 12th November, 2007. Mr. Ayo Olorunfemi leading Mr. Olakunle Yusuff for the appellant, adopted and relied on the appellant’s brief of argument and the reply brief in urging this court to allow the appeal. Learned counsel stated that three issues for determination were distilled from the three grounds of appeal and that additional authorities were cited on page 6 of the main brief. Learned counsel urged the court to allow the appeal. Mr. A.C. Igboekwe leading Mr. J.C. Ohekpo for the respondents, adopted and relied on the respondent’s brief of argument in urging the court to dismiss the appeal in its entirety with costs in favour of respondents.
The three issues for determination distilled by the appellant from the three grounds of appeal are as follows:
“(i). Whether the Appellant’s cause of action accrued on 25/11/92 as held by the learned trial judge or another date when the respondents defaulted to pay accruing interest complained of by the Appellant? (Ground 1).
(ii). Whether the learned trial judge was right in holding that the 2nd Respondent is a wholly owned subsidiary of the 1st Respondent, which could be accorded the same protection given by law to the 1st Respondent? (Ground 2).
(iii). Was the Appellant’s suit statute-barred as against both the 1st and 2nd Respondents
herein? (Ground 3).”
The respondents on their part also formulated three issues for determination as follows:
“1. Whether from the facts and circumstances of this suit, the learned trial Judge was right in holding that the Appellant’s cause of action arose at the very latest on 26th November 1991.
2. Whether the learned trial Judge was right in holding on the authority of LILLEKER BROTHERS NIGERIA LTD & AND TWO OTHERS V. NNPC AND KADUNA REFINERY AND PETRO CHEMICAL CO. LTD SUIT NO, CA/A/13/2000 decided on 15/5/2002 (unreported) that the 2nd respondent being a wholly owned subsidiary of the 1st Respondent and established pursuant to S. 6. of the NNPC Act also enjoys the protection given by law to the 1st Respondent.
3. Whether from the facts and circumstances of this case the Appellant’s suit is statute barred.”
The three issues for determination as identified by both the appellant and the respondents are identical in substance, save for issue number one. The respondent’s issue number one cannot be said to have been distilled from ground one of the grounds of appeal because of the difference in dates as contained in the said issue and the first ground of appeal. As the respondent’s have not filed a cross appeal, they cannot distill an issue outside the ground of appeal. The said issue is therefore incompetent and is hereby struck out. See Yadis (Niz) Ltd v. G.N.LC. Ltd (2007) 14 NWLR (PT.1055) 584. The finding of the lower court on page 146 line 15 is to the effect that the plaintiffs cause of action arose at the very latest on 26/11/91. Ground one of the ground of appeal and the issue distilled therefrom, namely issue one formulated by the appellant is a challenge on the finding of the lower court that the plaintiffs cause of action accrued on 25/11/92. The date 25/11/92 as reflected in ground one and the issue distilled therefrom by the appellant is not the date reflected in the ruling of the lower court at page 146 line 15, which is 26/11/91. It has to be noted that an appeal is a challenge against the judgment or ruling of a trial court and is never predicated on what a court has not decided in its judgment or ruling. A ground of appeal must therefore arise from the live issues or must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against. Ground one and the issues distilled therefrom do not arise from the ruling or constitute a challenge to the ratio of the ruling appealed against to the effect that the plaintiffs cause of action accrued on 26/11/91. Consequently ground one and issue one distilled therefrom are incompetent and are hereby struck out.
See Okonobor v. Edeqbe Trans. Ltd (2010) 41NSCOR 331 at 339 – 340. Oredovin v. Arowolo (1989) 4 NWLR (PL 114) 172 at 211, Egbe v. Adearasin (1987) 1 NWLR (Pt.47) 1, Oloruntoba-Olu v Abdul-Raheem (2009)39 NSCOR 105. C.E.M.A. Shippins Inc. v. M. T. ‘CINDY GAIA’ & 4 Ors (2007) 4 NWLR (Pt.1024) 222.
The first ground of appeal and the issue distilled therefrom are the substratum or backbone upon which this appeal is anchored. The relevance of issues 2 and 3 depends on the success or otherwise of issue one. Having struck out ground one and the issue distilled therefrom, issues 2 and 3 will cease to have much relevance and will appear to have no legs to stand on. I will however consider a minor aspect of the two issues namely whether the protection afforded to the 1st respondent can be extended to the 2nd respondent which is an incorporated company and therefore a separate legal entity from the 1st respondent.
The appellant argued that the 2nd respondent being an incorporated company is a separate legal entity from the 1st respondent, hence not entitled to the protection afforded to 1st respondent under Sections 12(1) and 12(2) of the N.N.P.C. Act. In support of this contention reference was made to the following cases: Warri Refinery & Petrochemical Co. Ltd & Anor v. Onwo (1999) 12 NWLR (PL 630) 312, Mobil Producing Nig. Unlimited v. LASEPA & Ors (2002) 18 NWLR (Pt. 798) 1. In response, learned counsel for the respondents contended that the 2nd respondent was established pursuant to Section 6 of the NNPC Act and being a subsidiary of the 1st respondent, by virtue of Section 22(1) of the NNPC Act it falls within the definition of ‘Corporation’ and therefore entitled to the same protection as the 1st respondent under Section 12(1) and 12(2) of the NNPC Act. In support of this submission, reference was made to the case of LILLEKER BROS. (Nig) Ltd v. NNPC & Anor, No. CA/L/13/2000 dated 15th May 2002.
Sections 12(1) and 12(2) of the NNPC Act, made provisions as to limitation of time for instituting suits against the corporation and the service of 30 days pre-action notice on the corporation.
In order to determine whether the 2nd respondent is entitled to the protection afforded to the 1st respondent under the aforementioned provisions of the NNPC Act, it is necessary to consider the definition of corporation under Section 22(1) of the same Act. Section 22(1) of the NNPC Act defines corporation as follows:
“‘Corporation’ means the Nigerian National Petroleum Corporation established pursuant to Section 1 of this Act and includes any wholly owned subsidiary thereof and, subject to the provisions of this Act includes the inspectorate.”
From the foregoing definition of corporation under Section 22(1) of the NNPC Act, any wholly owned subsidiary of NNPC, falls within the definition of corporation and therefore entitled to the protection afforded to the 1st respondent under the Act. The next question to be considered is whether the 2nd respondent is a wholly owned subsidiary of the 1st respondent in order to bring it within the definition and thus entitled to the protection.
The contention of the appellant is that there is nothing on the amended particulars of claim and statement of claim to suggest that the 2nd respondent is a wholly owned subsidiary of the 1st respondent. By paragraph 3 of the amended statement of claim on page 15 of the record, the appellant averred that the 2nd respondent is a subsidiary of the 1st respondent. Paragraph 11 of the affidavit in support and Exhibit ‘B’ the memorandum and articles of association of the 2nd respondent shows that it is a wholly owned subsidiary of the 1st respondent. At this juncture, I deem it necessary to state that the general principle that in determining jurisdiction a court is confined to writ of summons and statement of claim is subject to exceptions. In appropriate cases the court may look beyond the statement of claim, for instance if objection to jurisdiction in based on motion on notice supported by an affidavit, the court is obliged to consider the motion and the affidavit. See NDIC v. CBN (2002) 7 NWLR (Pt. 766) 272, Ariay Ltd v. Airline Mgmt Support Ltd (2003) 7 NWLR (Pt. 820) 577, A.G. Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645. Owie v. Ishiwi (2005) 1 SC (Pt. 11) 16 at 31-32
The 2nd respondent being a wholly owned subsidiary of the 1st respondent, it falls within the definition of a Corporation as contained in Section 22(1) of the NNPC Act. The cases of Warn Refinery & Petrochemicals v. Onwo (supra) and Mobil Producing Nig Unltd v. LASEPA (supra) are not relevant in the circumstances of this case. I find the case of Lilleker Bros Ltd v. NNPC & Anor (Unreported) quite apposite to the facts at hand. The 2nd respondent being a corporation within the content of Section 22(1) of the NNPC Act, is entitled to the protection afforded to the 1st respondent by the aforementioned provisions of the Act.
As earlier indicated in this judgment, with the striking out of ground one and the issue distilled therefrom the substratum of this appeal is gone and life knocked out of it. Consequent upon the foregoing, the appeal is hereby dismissed as lacking in merit and the ruling of the Federal High Court Lagos dated 3rd March, 2003 is hereby affirmed. There will be N30,000 costs against the appellant, in favour of the respondents.
RAPHAEL CHIKWE AGBO, J.C.A: I have read in draft the judgment just delivered by my learned brother Jauro, JCA and I agree with him completely. Appeals are founded on judgments and findings made by the lower court. It does not lie with a party to create a phantom finding and then proceed to appeal against it. This appeal has been a veritable waste of adjudication time.
I too dismiss it and abide by the consequential orders in the lead judgment.
ADZIRA GANA MSHELIA, J.C.A: I have had the advantage of reading before now the Judgment just delivered by my learned brother Jauro, JCA. I entirely agree with the reasoning and conclusion arrived thereat. I have nothing useful to add but to adopt same as mine. I too dismiss the appeal as devoid of merit and abide by the consequential orders made therein, cost inclusive.
Appearances
Mr. Ayo Olorunfemi with Mr. Olakunle YusuffFor Appellant
AND
Mr. A. C. Igboekwe with Mr. J. C.OhekpoFor Respondent
