SEAGULL OIL LIMITED & ORS. v. MONI PULO LIMITED & ORS.
(2011)LCN/4458(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of April, 2011
CA/A/192/M/2003
RATIO
DUTY OF THE RESPONDENT: WHETHER RESPONDENT TO AN APPEAL WHO DID NOT FILE A RESPONDENT’S NOTICE AND WHO DID NOT CROSS APPEAL IN THE APPEAL CANNOT FORMULATE OR RAISE ISSUES OUTSIDE THE GROUNDS OF APPEAL CONTAINED ON THE NOTICE OF APPEAL FILED BY THE APPELLANT
The law is trite that a Respondent to an appeal who did not file a Respondent’s notice and who did not cross appeal in the appeal cannot formulate or raise issues outside the grounds of appeal contained on the notice of appeal filed by the Appellant. See: OSAZUWA v. ISIBOR (2004) 3 NWLR (859) 16, EMESPO J. CONSTRUCTION LTD. V. CORONA S. & CO. (2006) 11 NWLR (991) 365, TABIOWO V. DISU (2008) 7 NWLR (1087) 533.” Per GARBA, J.C.A. (Pp. 13-14, paras. G-B) (…read in context) PER MOHAMMED LAWAL GARBA, J.C.A.
ISSUES FOR DETERMINATION: WHETHER FOR AN ISSUE TO BE A VALID AND COMPETENT IT MUST BE DERIVED FROM A COMPETENT GROUND OF APPEAL ARISING FROM THE DECISION APPEALED AGAINST
The law is also settled that for an issue to be a valid and competent one for consideration in the determination of an appeal, it must derive or arise from a competent ground of appeal arising from the decision appealed against. Where an issue raised in a brief of argument does not derive or arise from any of the grounds of the appeal or from the decision appealed against, it would be an incompetent issue in the appeal and liable to be struck out. See: ADAH v. ADAH (2001) 5 NWLR (705) 1, I.F.A. INT. LTD v. L.M.B. PLC. (2005) 9 NWLR (930) 274, EZEOGU V. ONWUCHUKWU (1997) 4 NWLR (502) 689, OJEMEN V. MOMODU (1983) 1 SCNLR 188. PER MOHAMMED LAWAL GARBA, J.C.A.
JURISDICTION: WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY TIME ; EFFECT OF A DEFECT IN THE JURISDICTION OF THE COURT TO ENTERTAIN A CASE BEFORE IT
However, the learned Counsel for the 4th Respondent is right when he submitted in the brief that the law is well settled that the issue of jurisdiction can be raised at any time even at the apex Court because it goes to the root of a case.Indeed I would add that because of the fundamental nature of the issue of the jurisdiction of a court to entertain or determine a case, it is intrinsic in any judicial proceedings such that any defect therein would result in the fatal and terminal consequence of rendering them null, void and of no legal effect ab initio. This is an elementary principle of law now and is the basis of yet another known position of the law that it is never too late in the course of or stage of proceedings to raise the issue of the jurisdiction of a court to try a case. The genuine issue of the jurisdiction of a court to entertain a case can be raised for the first time either at trial or appellate stage of the case by any of the parties or the court suo motu. See: OLOBA V. AKEREJA (1988) 7 SCNJ, 56, UZOUKWU V. EZEONU II (1991) 6 NWLR (2000) 708, NNONYE V. ANYICHIE (2005) 1 SC (Pt.II) 96, MILITARY GOV. OF ONDO STATE V. KOLAWOLE (2008) 9 MJSC, 203. PER MOHAMMED LAWAL GARBA, J.C.A.
JURISDICTION: WHETHER THE ISSUE OF JURISDICTION OF A COURT IS LEFT TO THE WHIMS AND CAPRICES OF A PARTY TO RASIE IT
But fundamental and crucial as the issue of jurisdiction of a court is in judicial proceedings and though it is never too early or too late to raise it, it is not left to the whims and caprices of a party to raise it, in whatever manner it suits him. Because the courts are courts of law and justice according to the rules of procedure and practice enacted pursuant to the law to guide the attainment of such justice in the courts, every issue including that of jurisdiction cannot be raised in complete disregard to well established principles of the law on how issues can properly be raised for them to be valid issues for consideration in the cases before the courts. PER MOHAMMED LAWAL GARBA, J.C.A.
ISSUE OF JURISDICTION: WHETHER A PARTY TO AN APPEAL THAT INTENDS TO RAISE THE ISSUE OF JURISDICTION ON APPEAL MUST MAKE IT A GROUND IN THE GROUNDS OF APPEAL TO ENABLE HIM FORMULATE AN ISSUE THEREON
I am not unmindful in the view, of the law that non objection on jurisdiction by parties, acquiescence or consent of the parties does not confer jurisdiction on a court where it does not exists as established in several cases such as: ONYEMA V. OPUTA (1987) 6 SCNJ 176, OLANIYI V. AROYEHUN (1991) 5 NWLR (194) 652. However, in the case of JOV. DOM (1999) 7 SC (Pt.III) 1 it was held inter alia, that: “although issue of jurisdiction can be raised at any time in proceedings, it is not a free for all procedure. Thus a party to an appeal that intends to raise a new issue or introduce a novel matter into an appeal must seek leave to do so. But to contend that issue of law or constitution can be raised at any time and do nothing more than raise it in argument is like saying a disrupting ambush for the opponent. Proper application must be made so that the other side will know clearly what he has to meet.” I am also aware of the law that a party in an appeal does not need to apply or get leave of court before raising an issue of jurisdiction. But I wish to point out the principle of law is only applicable where a party properly raised the issue through a ground of appeal. As stated in the case above, where the issue was not raised in or vide a ground of appeal or cross appeal as the case may be, it amounts to a raising a fresh or new issue in the appeals to merely raise and argue to in a brief of argument and so requires leave of court to do so. I would like to point out that the issue of jurisdiction not raised through a ground of appeal or cross appeal is not like a preliminary objection to the hearing of an appeal or competence of a grounds of appeal which by established principles of practice’ can be raised and argued in a Respondent’s brief of argument. It is therefore a new issue of law which is completely outside the decision appealed against and is not predicated on it. This court in the case of ADENIYI v. OROJA (2006) had held that:- “The issue of jurisdiction no doubt is very fundamental and could be raised at any stage even for the first time on appeal. That however is subject to same being made a ground of appeal and issue formulated thereon. In other words, there can be no argument in a vacuum. It must be predicated on a ground of appeal” Again in the case of OKONKWO v. OKONKWO (2004) 5 NWLR (865) 87 at 107, the Court had held that:- “Issue of jurisdiction can be raised at any stage of the proceedings, even on appeal. However a party raising it on appeal mast make it a ground in the grounds of appeal to enable him formulate an issue thereon. Therefore, formulating issues at large outside the grounds of appeal is tantamount to an invitation to the court to resolve a dispute without identifying the complaint and doing so by stealth is a subtle way of over-reaching the opponent, a ruse which the court in its duty of holding even balance, cannot wink at.” See also LAMBERT v. NIGERIAN ARMY (2006) 7 NWLR (980) 514 at 535. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWA GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
1. SEAGULL OIL LIMITED
2. MADAM UGURU OLUCHI
3. ALEX OPUKIRI KIO
4. MADAM OFONG NUALA Appellant(s)
AND
1. MONI PULO LIMITED
2. CHIEF O. B. LULU BRIGGS
3. BRASS EXPLORATION UNLIMITED
4. MINISTRY OF PETROLEUM Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):This appeal is from the decision of the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/437/2001 delivered on the 10/6/2003 dismissing the Appellant’s suit for non-disclosure of a cause of action.
With the leave of the Court, a notice of appeal containing three grounds was filed on the 22/2/07 against the said decision and pursuant to the requirement of the Rules of Court, parties filed briefs of argument in support of their respective positions in the appeal.
The Appellants’ brief filed on 23/9/08 was deemed on the 17/2/09, the 1st and 2nd Respondents’ brief was filed on the 26/3/09 and the 4th Respondent’s brief was filed on the 23/3/10 as directed by the court on the 16/3/10. There is no record that the 3rd Respondent had filed a brief in the appeal though duly served with all the processes thereof, but in particular, the Appellants’ brief.
On the 1/3/11 when the appeal came up for oral hearing in Court, Mr. Okey Uzoho Esq., leading other Counsel, adopted the Appellants’ brief of argument while Mr. Tope Solola also leading other Counsel, adopted the 1st and 2nd Respondents’ brief.
The 4th Respondent’s brief was adopted by Mr. H. D. Belgore, Esq. and though the learned Counsel for the 3rd Respondent was duly served with hearing notice of the appeal on 13/2/11, he was absent from court on the date of the hearing and there was no communication from him to excuse the absence.
The court was urged by the learned Counsel for the parties to uphold their respective submissions in the briefs of argument and allow or dismiss the appeal as the case may be.
From the 3 grounds of appeal contained on the notice of appeal, two issues were formulated by the learned Counsel for the Appellants at paragraph 3.00 on page 6 of the Appellants’ brief. They are:-
“1. Whether the Plaintiffs/Appellants statement of claim did not contain all the elements necessary to disclose a reasonable cause of action – Ground 1.
2. Whether in the circumstances of this case, the trial Court could consider the details of Plaintiffs/Appellants compliance with the terms of the Offer Letter without delving into the merits of the case. – Grounds 2 & 3.”
For the learned counsel for the 1st and 2nd Respondents, only one issue arises for determination in the appeal and it is as follows:-
“Whether the Appellants have in their pleadings (the constituent of the statement of claim) disclosed any reasonable cause of action against the Respondents.”
On the part of the 4th Respondent, two issues were submitted for determination at paragraph 2 of the 4th Respondent’s brief. They are thus:
“1. Whether the court below had jurisdiction to entertain this action as presently formulated against the 4th Respondent on the ground that:
a. The Appellants action was statute barred by virtue of Section 2(a) of the Public Officer Protection Act, and
b. Appellants have no locus-standi to institute this action against the 4th Respondent at the court below having lost the right to OPL 230 in March 1992 when the OPL was withdrawn from the 1st Appellant.
2. Was the learned trial judge right in holding that the Plaintiffs/appellants action as formulated did not disclose reasonable cause of action against the Respondents?”
At the hearing, learned Counsel for the Appellant had said that his 1st issue was distilled from ground of appeal No. 1 while the second issue was from grounds 2 and 3. Even though it was not indicated in the brief of argument in line with diligent practice, the learned Counsel for the 4th Respondent did not say or indicate at the hearing from which of the grounds of appeal the issues submitted in this brief were distilled. However what can easily be observed from the issues raised in the 4th Respondent’s brief is that issue 1 did not and was not distilled from any of the grounds contained on the Appellants’ notice of appeal or from a Respondent’s notice issued by the 4th Respondent in the appeal. The law is trite that a Respondent to an appeal who did not file a Respondent’s notice and who did not cross appeal in the appeal cannot formulate or raise issues outside the grounds of appeal contained on the notice of appeal filed by the Appellant. See:
OSAZUWA v. ISIBOR (2004) 3 NWLR (859) 16, EMESPO J. CONSTRUCTION LTD. V. CORONA S. & CO. (2006) 11 NWLR (991) 365, TABIOWO V. DISU (2008) 7 NWLR (1087) 533.
The law is also settled that for an issue to be a valid and competent one for consideration in the determination of an appeal, it must derive or arise from a competent ground of appeal arising from the decision appealed against. Where an issue raised in a brief of argument does not derive or arise from any of the grounds of the appeal or from the decision appealed against, it would be an incompetent issue in the appeal and liable to be struck out. See:
ADAH v. ADAH (2001) 5 NWLR (705) 1, I.F.A. INT. LTD v. L.M.B. PLC. (2005) 9 NWLR (930) 274,
EZEOGU V. ONWUCHUKWU (1997) 4 NWLR (502) 689, OJEMEN V. MOMODU (1983) 1 SCNLR 188.
However, the learned Counsel for the 4th Respondent is right when he submitted in the brief that the law is well settled that the issue of jurisdiction can be raised at any time even at the apex Court because it goes to the root of a case.
Indeed I would add that because of the fundamental nature of the issue of the jurisdiction of a court to entertain or determine a case, it is intrinsic in any judicial proceedings such that any defect therein would result in the fatal and terminal consequence of rendering them null, void and of no legal effect ab initio. This is an elementary principle of law now and is the basis of yet another known position of the law that it is never too late in the course of or stage of proceedings to raise the issue of the jurisdiction of a court to try a case. The genuine issue of the jurisdiction of a court to entertain a case can be raised for the first time either at trial or appellate stage of the case by any of the parties or the court suo motu. See:
OLOBA V. AKEREJA (1988) 7 SCNJ, 56, UZOUKWU V. EZEONU II (1991) 6 NWLR (2000) 708,
NNONYE V. ANYICHIE (2005) 1 SC (Pt.II) 96,
MILITARY GOV. OF ONDO STATE V. KOLAWOLE (2008) 9 MJSC, 203.
But fundamental and crucial as the issue of jurisdiction of a court is in judicial proceedings and though it is never too early or too late to raise it, it is not left to the whims and caprices of a party to raise it, in whatever manner it suits him. Because the courts are courts of law and justice according to the rules of procedure and practice enacted pursuant to the law to guide the attainment of such justice in the courts, every issue including that of jurisdiction cannot be raised in complete disregard to well established principles of the law on how issues can properly be raised for them to be valid issues for consideration in the cases before the courts. I have stated earlier on that on the authority of the cases cited on the point, for an issue to be valid for consideration in an appeal in this Court, it has to be shown to have derived, arise from or predicated on a competent ground of appeal, cross appeal or Respondent’s notice as the case may be. Where an issue does not derive, or arise from a competent ground in the appeal, like I said before now, it is an invalid and therefore an incompetent issue liable to be struck out by the court: as demonstrated in the judicial authorities referred to. So even through an issue of jurisdiction can be raised at any stage by any of the parties, it requires to be raised through a ground of appeal by the Appellant, or ground of cross appeal by a Respondent who was not satisfied with the decision of a trial court and wants to challenge it on the ground of want of jurisdiction of trial court to entertain the case. It is only from such ground of appeal or cross appeal that the issue of jurisdiction can properly be raised and submitted to this Court for consideration in the appeal. Without a ground of appeal as the basis or foundation of such an issue, it would be from no where, not arising from the decision appealed against since the trial court did not make any pronouncement on it, having not been raised before it. It is in the circumstances, improper and incompetent for a Respondent to raise for the first time, the issue of jurisdiction of a trial court in the Respondent’s brief in the absence of a ground of cross appeal by him on the issue. It is to be noted that litigation at all stages should be an open and fair legal contest between the parties during .which they present the points or issues of dispute to the impartial adjudicator for resolution in accordance with the law. Tobi, J.S.C., in the case of CHIEF OF AIR STAFF v. IYEN (2005) ALL FWLR (252) 404 at 434, had put it beautifully thus:-
“Litigation is a straight forward legal matter of adjudication which does not, or, better still, should not admit of pretence or tricks. Litigation is not a game of vain rhetoric or insincere polemics but one of reciprocal sincerity of the parties by placing their cards openly before the court for adjudication and final decision. The principles of equity and justice will not allow any party to play pranks.”
By the failure, omission or refusal of the 4th Respondent to raise and submit the issue of the jurisdiction of the trial court to entertain the suit on any ground but particularly that of the action being statute barred or want of locus on the part of the Appellant to institute it, for decision by that court and the failure to raise it by way of a ground in cross appeal, amounts in my firm view, to playing pranks by raising it in the brief of argument.
I am not unmindful in the view, of the law that non objection on jurisdiction by parties, acquiescence or consent of the parties does not confer jurisdiction on a court where it does not exists as established in several cases such as:
ONYEMA V. OPUTA (1987) 6 SCNJ 176, OLANIYI V. AROYEHUN (1991) 5 NWLR (194) 652.
However, in the case of JOV. DOM (1999) 7 SC (Pt.III) 1 it was held inter alia, that:
“although issue of jurisdiction can be raised at any time in proceedings, it is not a free for all procedure. Thus a party to an appeal that intends to raise a new issue or introduce a novel matter into an appeal must seek leave to do so. But to contend that issue of law or constitution can be raised at any time and do nothing more than raise it in argument is like saying a disrupting ambush for the opponent. Proper application must be made so that the other side will know clearly what he has to meet.”
I am also aware of the law that a party in an appeal does not need to apply or get leave of court before raising an issue of jurisdiction. But I wish to point out the principle of law is only applicable where a party properly raised the issue through a ground of appeal.
As stated in the case above, where the issue was not raised in or vide a ground of appeal or cross appeal as the case may be, it amounts to a raising a fresh or new issue in the appeals to merely raise and argue to in a brief of argument and so requires leave of court to do so.
I would like to point out that the issue of jurisdiction not raised through a ground of appeal or cross appeal is not like a preliminary objection to the hearing of an appeal or competence of a grounds of appeal which by established principles of practice’ can be raised and argued in a Respondent’s brief of argument. It is therefore a new issue of law which is completely outside the decision appealed against and is not predicated on it. This court in the case of ADENIYI v. OROJA (2006) had held that:-
“The issue of jurisdiction no doubt is very fundamental and could be raised at any stage even for the first time on appeal. That however is subject to same being made a ground of appeal and issue formulated thereon. In other words, there can be no argument in a vacuum. It must be predicated on a ground of appeal”
Again in the case of OKONKWO v. OKONKWO (2004) 5 NWLR (865) 87 at 107, the Court had held that:-
“Issue of jurisdiction can be raised at any stage of the proceedings, even on appeal. However a party raising it on appeal mast make it a ground in the grounds of appeal to enable him formulate an issue thereon. Therefore, formulating issues at large outside the grounds of appeal is tantamount to an invitation to the court to resolve a dispute without identifying the complaint and doing so by stealth is a subtle way of over-reaching the opponent, a ruse which the court in its duty of holding even balance, cannot wink at.”
See also LAMBERT v. NIGERIAN ARMY (2006) 7 NWLR (980) 514 at 535.
The arguments by the 4th Respondent on the issue of the Federal High Court’s jurisdiction to entertain the Appellants’ suit as contained in the brief are clearly in vacuum and not predicated on any ground of appeal. To that extent, the arguments are incompetent and of no moment in the appeal. I would discountenance them for that reason. In fact I have observed that in the decision appealed against, the Federal High Court dismissed the Appellants’ case against the 1st and 2nd Defendants (Respondents herein) fort non-disclosure of a cause of action against them.
The case against the 4th Respondent who was 4th Defendant was not considered, or decided or even mentioned in the decision which was in respect of an objection raised by the 1st and 2nd Defendants. So if the ruling by the Federal High Court from which this appeal arose did not affect the 4th Respondent in the sense that its right and obligations in the suit were not determined, one would wonder how the 4tr Respondent without a ground of cross appeal just attempted to raise an issue which affected it and not decided by the Federal High Court. Of course being a party in the case before the Federal High Court, one may be tempted to say that the 4th Respondent had the right to appeal against a decision therein but since no issue affecting the 4th Respondent was decided in the decision, it could only exercise, the right of appeal in the manner prescribed by the law.
I now return to the issues raised by the learned Counsel in their respective briefs from the grounds of appeal.
Looking calmly at the 3 grounds of appeal contained on the Appellants’ notice of appeal, the primary and crucial issue trial calls for determination in the appeal is Appellants’ issue No.1. That issue as a reminder, is:-
“Whether the Plaintiffs/Appellants statement of claim did not contain all the elements necessary to disclose a reasonable cause of action.”.
This issue is the same as that of 1st and 2nd Respondent as well as the 4th Respondent’s issue No. 2. I would consider the submissions by learned Counsel on the issue in the appeal for it adequately covers the complaint of the Appellants against the decision of the Federal High Court. It also subsumes the issue No. 2 raised by the Appellants.
The learned Counsel for the Appellants, after reference to the definitions of “cause of action” in Black’s Law Dictionary, and the cases of EGBE V. ADEFARASIN (1987) 1 NWLR (471) 1 at 20 and ATTORNEY GENERAL OF THE FEDERATION v. ABUBAKAR (2007) 10 NWLR (1041) 1 at 75 had submitted that the Appellants’ statement of claim has disclosed all the elements and facts that show the existence of a cause of a reasonable action which he listed as:
(a) the wrongful acts of the Defendants/Respondents which gave the Plaintiffs/Appellants their cause of complaint and the right to judicial relief, and
(b) the consequent damage.
The case of AKIBU v. ODUNTAN (2000) 13 NWLR (685) 446 was cited by him.
According to learned Counsel, the Appellants’ statement of claim has disclosed the following: –
“a. The 1st Plaintiff/appellant is the owner of Oil Prospecting Licence 230 procured on a joint venture with the 2nd Respondent.
b. That the Respondents fraudulently converted the OPL 230 by changing the name of the allottee from that of the 1st Plaintiff to 3 successive companies namely: Sombriero Oil Limited, Nyemoni Oil Limited und Moni Pulo Limited in their bid to unlawfully deprive the plaintiffs the benefit of the licence i.e. participating in the drilling of the oil and sharing of profits.
c. The 1st, 2nd and 3rd Defendants, with the tacit approval and connivance of the 4th Defendant, have since 1998 commenced production of oil from the said OPL 230 and are drilling the oil to the exclusion of the Plaintiffs, the bonafide owner of OPL 230 and refusing to give the Plaintiffs their share of profits -which is the cause of the dispute.
d. The Plaintiffs are claiming 65% of the profits as shown in paragraph 20 of the Statement of Claim”
He said that by the statement of claim the Appellants have undisputably disclosed that there is a dispute or controversy between the parties that is sufficient to ground the action. It was contended by him that the alleged insufficiency or absence of details of compliance with the terms of the letter of offer is not a preliminary matter but rather one of the defence which ought not to have been used at the interlocutory stage of the case by the trial court. In addition, that the law is that pleadings must contain only a statement of material facts on which a party relies and not evidence by which they we to be proved. Learned Counsel then cited Bullen, Leake and Jacob’s Precedents of Pleadings 12th Edition and submitted that the law is that at the stage of the Appellant’s case, all that trial was to look at to determine whether or not the case disclosed reasonable cause of action was the statement of claim. That a statement of claim is only required to disclose enough facts to enable the plaintiff maintain the action and not that the action will succeed. It was argued that the Federal High Court was wrong to have raised the bar to a standard of proof at the preliminary stage and thereby denied the Appellants the opportunity to present evidence by prematurely and precipitately dismissing their suit. The case of SOCIETE-GENERALE BANK LTD. v. BURAIMO (1991) 1 NWLR (168) 428 at 436 was cited and we were urged to resolve the issue in Appellants’ fallow.
For the 1st and 2nd Respondents, the definition of “cause of action in the case of ONADEKO v. UBN (2005) 4 NWLR (916) 440 at 459-60 was added to the ones provided in the Appellants’ brief and it was submitted that it is not sufficient to allege or impute a wrongful act to a Defendant and claim consequent damage but rather there must be before a court, relevant fact which need be proved by a plaintiff to give him the right to sue or enforce a claim.
Learned Counsel for the 1st and 2nd Respondents then submitted that it is the bundle of material facts pleaded by a plaintiff showing his right of action that will constitute the lis. He contended that it follows therefore that in the determination of an objection that a cause of action was not disclosed, the pleadings of the plaintiff would be scrutinized by the court. Furthermore, that the 1st Respondent did not aver that it owned the Oil Prospecting Licence (OPL) in dispute in the pleadings contrary to the assertion by the learned Counsel by the Appellants. Learned referred to paragraphs 1 and 5 of the Appellants’ statement of claim at pages 4 and 5 of the record of appeal and said that it is clear that the source of the alleged right to the OPL was a grant and by the named pleadings, no reasonable cause of action is disclosed by the Appellants. It was the further contention by the learned Counsel that the Federal High Court was entitled to look and consider the averments in the pleadings along with all annextures attached thereto in order to determine whether they disclose a reasonable cause of action. Also that the Federal High Court considered the pleadings in their entirety and found that the Appellants make averments as to the payment of one million US Dollars as one of the conditions for it to have acquired the right in the OPL and thus be vested with a cause of action. RINCO CONSTRUCTION CO. LTD. v. VEE PEE INDUSTRIES LTD. (2005) 9 NWLR (929) 85 at 97-8 was commended to us on the submission and it was said that SOCIETE GENERALE v. BURAIMO is not on all fours with the Appellants’ case but is in fact distinguishable. Learned Counsel maintained that the Federal High Court only considered the facts pleaded by the Appellants and nothing else in the ruling appealed against and so it is not correct to say that that court had decided the substantive matter at an interlocutory stage or that it delved into the merit of the case.
In another vein, it was submitted that the question as to whether a case discloses a reasonable causd of action has the potential of determining the matter if a court finds in favour of an objection and so it is not accurate to call it preliminary.
Arguments were then canvassed in relation to the Appellants’ issue 2 and we were finally urged to “resolve this appeal against the Appellants” and to dismiss it.
For the 4th Respondent, the definition of cause of action was referred to and it was submitted that before a plaintiff can approach the court to determine any question, a cause of action must have accrued. Further that where the totality of the facts which can ground a cause of action in law are not present or are to mature or ripen in the future, the plaintiffs’ right to go to court will not be exercisable until the right actually matures or ripens. Reliance was placed on:
AKINOLA v. SOLANO (1986) 1 N.S.C.C. 504 and BILWADAMS CONSTRUCTION CO. LTD. V. DRAGOMIR (2002) FWLR (109) 1630.
Facts which are not relevant to the determination of the issue under consideration were then set out the 4th Respondent’s brief on the basis of which arguments were proffered that are of no moment in the appeal. Eventually we were urged to uphold the decision of the court below and dismiss the appeal.
All learned Counsel are right in their reference to what judicially, is a cause of action or reasonable cause of action in a case. In the case of OSHOBOJA V. AMUDA (1992) 6 NWLR (250) 690, the Supreme
Court had defined a cause of action in the following words:-
“A cause of action is a fact or combination of facts which when proved would entitle a plaintiff to a remedy against a defendant”
A reasonable cause of action was defined thus by the apex Court as follows:-
“A reasonable cause of action is a cause of action which (when only the allegations in the statement of claim are considered) has some chance of success.”
See also the cases of:
ADUMORA V. AJUFO (1988) 3 NWLR (80) 1, THOMAS V. OLUFOSOYE (1986) 1 NWLR (18) 699,
OGBIMI V. OLOLO (1993) 7 SCNJ 447, SANDA V. KUKAWA L.G. (1991) 2 NWLR (174) 379.
The law is settled that in determining whether a cause of action or reasonable cause of action exists in a case, the court has to look at and consider the facts as pleaded in the statement of claim filed by the plaintiff on which the claims made are predicated. In other words, the only relevant document a court has to or needs to consider in the determination of whether a cause of action or a reasonable cause of action exists or is shown in a case, is the statement of claim which contains all the facts relied on by the plaintiff in making a claim against a defendant and seeking judicial remedy from the court. See:
AYANBODE v. BALOGUN (1990) 5 NWLR (151) 392, FUMUDOH V. ABORO (1991) 9 NWLR (214) 210,
ONADEKO V. UBN (supra), BRIGHT MOTORS V. HONDA MOTORS (1998) 12 NWLR (577) 230.
Further, in the determination of whether a statement of claim discloses a cause of action or reasonable cause of action, the court looks at the facts deposed therein and see if on their face they would entitle the plaintiff to a remedy if proved.
The facts must be such that prima facie, they show a right in the plaintiff which has been violated or infringed upon by the acts of the defendant that would entitle the plaintiff to approach the court for a remedy. See:
OGBUMI v. OLOLO (1993) 7 SCNJ 447. S.P.D.C. LTD. v. NWAKA (2003) FWLR (144) 506,
OLAWORE V. OJO (2006) ALL FWLR (341) 1382 at 1392, OSHOBOJA V. AMUDA (supra).
From the definitions and requirements of a cause of action or reasonable cause of action it can simply be said to be constituted by either single fact or combination of facts averred by a plaintiff in his pleadings which the law will recognuze as giving him a right make a claim against a defendant for a remedy or relief in court. The factual situation disclosed by the facts in the plaintiffs’ pleadings on which he relies to support the claim made must be recognized as giving him the right capable of being claimed against the defendant. In this con, a cause of action is different from the right of action which is the right to enforce a cause of action. There has to exist a cause of action before a right of action would arise or accrue. See EGBE v. ADEFARASIN (supra).
The law is also trite that in determination of the existence of a cause of action, the court is not concerned with whether or not the plaintiff would succeed in proving his claim as that would only come for consideration when issues are joined and evidence adduced by the parties in proof of their positions in a case. See: BELLO v. A.G. OYO STATE (1980) 5 NWLR. 828.
Because the court is not concerned with the success or failure of the plaintiffs’ claim at the stage of determining whether a cause of action was disclosed by the facts averred in the statement of claim, it will not consider the strength or merit of the case for that purpose as it would be premature and pre-emptive to do so at that stage. That should be enough for the position of the law on the cause of action and its determination by a trial court.
It may be recalled that the contention of the learned Counsel for the Appellants is that the facts set out in their statement of claim have disclosed what constitute a cause of action by the Appellants against the Respondents. It is necessary to look at the pleadings of the Appellants on which they relied, in support of their case. All the 20 paragraphs of the Appellants’ statement of claim dated the 7th December, 2001 which appear at pages 4-10 of the record of appeal are relevant for determination of the issue. It is therefore expedient to set them out for a clear and full appropriation of the facts contained therein. They are thus:
“STATEMENT OF CLAIM
I. The 7th Plaintiff is a limited liability company incorporated in Nigeria, whose main object is the trade or business of petroleum exploration, drilling and marketing, and a copy of the memorandum and Articles of Association is hereby pleaded and is annexed and marked as Annexure ‘A’. The 1st plaintiff was, on the 16th day of October, 1991, grunted an oil prospecting licence to drill oil in Oil Block OPL 230 by the 4th Defendant, and a copy of the letter of grant is hereby pleaded, and a copy of annexed herewith as Annexure ‘B’.
2. The 2nd, 3rd and 4th Plaintiffs are directors of the said 1st Plaintiff, The 2nd Defendant was brought by the other directors into the said to Plaintiff Company as a director in order to fulfill a policy requirement for an indigene of the Rivers State on the board of directors of an indigenous company applying for licence for oil exploration The shares of the Plaintiff were allotted amongst the above said directors as follows: 2nd Plaintiff 30,000; 3rd Plaintiff 9,500; 4th Plaintiff 500; and 2nd Defendant 20,000. The certified true copy of the Form CO2 is hereby pleaded and is annexed herewith as Annexure ‘C’.
3. The 1st Defendant is a limited liability company later incorporated by the 2nd Defendant, without the knowledge and consent of the Plaintiff, and incorporated by the 2nd Defendant solely for the purpose of hijacking the oil prospecting licence obtained by the 1st Plaintiff.
4. The 3rd Defendant is un oil prospecting company incorporated in Nigeria with its office; at No. 35 Moloney Street, Lagos brought in by the In and 2nd Defendants as joint venture partners to drill oil in oil block OPL 23 hultotted to the 1st Plaintiff. The 3rd Defendant is also a subsidiary of two multinational companies known as Western Atlas International Incorporated and W.I. Incorporated, with head office in Houston, Texas in the United States of America.
5. Upon the grant of the said oil prospecting licence, the 1st Plaintiff on 16th December, 1991 duly paid the requisite Official fees of US(Dollars)10,000 and N200 respectively, and a copy of the cheques is annexed herewith as Annexure ‘D’.
6. Subsequently and unknown to the Plaintiffs, the 2nd Defendant, without the knowledge and consent of the directors of the 1st Plaintiff, changed the name of the company allotted the OPL 230 from the 1st Plaintiff s name to another company called Sombriero Oil Limited incorporated by him to hijack the oil block already allotted to the Plaintiffs. The Plaintiffs upon realizing this irregularity in 2001 applied for and obtained a certified true copy of the certificate of incorporation and particulars of directors of the said Sombriero Oil Limited’ which are attached herewith as Annexures ‘E’ and ‘F’ respectively. These documents are hereby pleaded und the Defendants are hereby given notice to produce the originals thereof.
7. The Plaintiff also obtained a copy of the 2nd Defendant’s letter to the 4th Defendant with which the fraudulent change was effected, and same is pleaded and a copy is attached herewith us Annexure ‘G’, and the Defendants are hereby given notice to produce the original thereof.
B. To further perfect the fraud and deception, the 2nd Defendant later changed the name of the said Sombriero Oil Limited to Moni Pulo Limited, with his children, some of who are minors, and himself as the directors. His infant children named as directors, namely Chima and Senibo were born in 1991 and 1992 respectively, while he also inserted the name of his grandmother Agbani Lulu Briggs who died in 1952 as one of the directors. The Plaintiffs also obtained certified true copies of the Form CAC 25 and Resolution for Allotment of Shares of the said Moni Pulo Limited which are hereby pleaded, and are annexed herewith as Annuures ‘H’ and ‘J’,
9. The 2nd Defendant further applied to change the name of a company known as Nyemoni Oil Limited to Moni Pulo Limited as part of the strategy of to elbow oat the directors of the Plaintiff, and wrote a letter to the 4th Dependant to that effect, a copy of which letter is annexed herewith as Annexure Exhibit ‘K’. The said letter is hereby pleaded and the Defendants are given notice to produce the original thereof, The 4th Defendant had without reference to the Plaintiff, replied the 2nd Defendant, accepting the change of name to Moni Pulo, and u copy of the letter is also pleaded and is annexed herewith as Annexure Exhibit ‘L’.
10. Thus armed, the 1st and 2nd Defendants then assigned 40%. Of the participating interest in the said OPL 230 to Brass Exploration Unlimited, the 3rd Defendant in this suit without the consent or knowledge of the In Plaintiff, the owner of the licence over oil block OPL 230.
11. Production of oil from OPL 230 begun actively in 1998, and the 1st to 3rd Defendants have been and are drilling the oil to the exclusion of the Plaintiff, the bona fide owners of the OPL 230. Since then, the Defendants have been producing oil at 20,000 barrels per day and fetching a daily profit from the drilling of oil from oil Block OPL 230 of the sum of US(Dollars)70,000.00. The recoverable reserve of the oil block is estimated at 300 million barrels.
72. The 7th Plaintiff as the owner of the licence is entitled to 60% of the daily profit of US(Dollars)70,000.00 being the sum of US(Dollars) 2,000.00. The accumulated profit to which the 1st Plaintiff is entitled, for the period of 3-1/2 years, that is, from 1998 to 2001 is the sum of N5 billion.
13. The 2nd Defendant has, out of sheer greed, sought to push out the Plaintiff who conceived und nurtured this business, and obtained the licence for the oil block OPL 230. Further, alt the changes irregularly effected by the 2nd Defendant with the objective of elbowing out the Plaintiffs were only discovered by the Plaintiffs in 1999 after the Plaintiffs started demanding payment after production of oil had begun in 1998.
14. The Plaintiff have since demanded and continued to demand for their due share of the profits from this venture, but the 1st to 3rd Defendants have continued to prevaricate despite series of meetings and arbitrations’ Series of high level meetings have been called and held for the purpose of getting the In to 3rd Defendants to pay over to the Plaintiffs their due share of the profits, but the 1st to 3rd Dependants have continued to frustrate the outcome of such meetings, the last of which meeting was held in July 2007.
15. The 1st to 3rd Defendants rather are bent on continuing to drill oil from the said Oil Block OPL 230 belonging to the 7th Plaintiff without allowing the Plaintiffs to participate, unless restrained by this Honourable Court from further drilling of oil from the said Oil Block OPL 230, and from farther or any interference with the said OPL 230 and its oil block.
16. The Defendants have refused to have an account taken of the proceeds from the sales of oil drilled from oil block OPL 230 by the 1st to 3rd Defendants since 1998, and it will serve the interests of justice for the Honourable Court to appoint a firm of chartered accountants, Messrs Chuke Nwosu & Co., Chartered Accountants of No. 1 Service Centre, Kambole Street, Wuse Zone 2, Abuja to audit and collect the proceeds of sale of the said oil block, deduct reasonable expenses and pay the balance into an interest-yielding account.
17. The Plaintiffs had in 1999 promptly protested against the unlawful attempt by the 2nd Defendant to change the name of the allottee company from the 1st Plaintiff s name to any other company, and the letter of protest to the 4th Defendant is hereby pleaded, and u copy thereof is annexed herewith as Annexure ‘M’, and the Defendants are given notice to produce the original thereof.
18. In order to cover their fraudulent tracks, the 2nd Defendant recently obtained a forged and back dated letter claimed to emanate from the 4th Defendant purporting to withdraw the allocation of the licence to the 1st Plaintiff in 1992. At the trial, the Plaintiffs shall show that the said letter was irregularly obtained und could not have been in existence since 1992 as dated. The said letter is one of the antics of the 2nd Defendant to deprive the Plaintiffs the proceeds from the sale of oil from the oil block allotted to the Plaintiffs.
19. The Plaintiff plead the particulars of fraud us follows:
(a) The 2nd Defendant, without the consent or knowledge of the Plaintiffs, changed the name of the company allotted the oil Block OPL 230 from the name of the 1st Plaintiff to the name of another company called Sombriero Oil Limited incorporated the 2nd Defendant him solely for the purpose of hijacking the oil block already allotted to the Plaintiff.
(b) The 2nd Defendant subsequently altered the name again to Moni Pulo Limited, with his children, some of who are minors, and himself as the directors, together his grandmother Agbani Lulu Briggs who died since 1952.
(c) The 2nd Defendant further applied to change the name of a company known as Nyemoni Oil company to Moni Pulo Limited as part of the strategy of deception to ensare that he disenfranchised the Plaintiff who initiated the business.
(d) The 1st and 2nd Defendants have doctored and altered several documents of incorporation to monopolise the business of prospecting of oil from Oil Block OPL 230 belonging to the Plaintiff and excluding the Plaintiffs therefrom-
(e) The 2n Defendant also recently obtained a forged and back dated letter claimed to emanate from the 4th Defendant purporting to withdraw the allocation of the licence to the 1st Plaintiff in 1992.
20. Wherefore the Plaintiff claim against the Defendants jointly and severally as follows:-
(a) A declaration that by virtue of the grant of oil prospecting licence dated the 4th day of September, 1991 by the 4th Defendant to the 1st Plaintiff, the 1st Plaintiff became and is the sole allottee of the Oil Block OPL 230, and is exclusively entitled to drill and prospect oil from the said oil block, and is entitled to proceeds from sale of oil drilled from the said oil block
(b) A declaration that the change of the name of the allottee company for OPL 230 from the 1st Plaintiff s name without its consent or resolution, to Sombriero Oil Limited and then to the In Defendant’s name by the 1st and 2nd Defendants is irregular, and done in bad faith.
(c) An order nullifying the usurpation and operation of the said Oil Block OPL 230 by the 1st, 2nd and 3rd Defendants.
(d) An order of account by the 1st to 3rd Defendants jointly and severally of the monies realized from the sales of oil drilled from oil block OPL 230 from 1998 to date.
(e) An order directing the 1st to 3rd Defendants jointly and severally to pay to the Plaintiffs the sum of Five Billion Naira being and representing the Plaintiffs’ share of proceeds from the sales of oil drilled from Oil Block OPL 230 by the 1st to 3rd Defendants since 1998.
(f) An order appointing the firm of Messrs Chuke Nwosu & Co., Chartered Accountants of No. 1 Service Centre, Kambole Street, Wuse Zone 2, Abuja as Receiver/Manager of all the proceeds realized from the sale of oil drilled from oil block OPL 230 by the 1st to 3rd Defendants since 1998, less expenses, under payment of the balance into an interest-yielding account in a reputable bank as decreed by the Court.
(g) An order of perpetual injunction restraining the 1st to 3rd Dependants, by themselves or through their servants, agents, assigns, workers or privies from further drilling of oil from the oil block OPL 230 or interfering in any manner whatsoever with the said OPL 230 and its oil block.”
It should be remembered that the above facts are the only relevant materials, along with any other processes annexed thereto on which the Appellants relied in making their claim against the Respondents, to be considered and taken into account in the determination of whether a cause of action was disclosed thereby. Because the statement of claim in law has superseded the writ of summons, it would be unnecessary to even look at the writ though it remains part of the processes filed by the Appellants in the case. See:
BENWONWU v. ISOKARIARI (1994) 7 NWLR (358) 587. ENIGBOKAN v. AIIC (1994) 6 NWLR (348) 1,
CHIGBU v. TONIMAN (1999) 3 NWLR (593) 115) at 130.
The above facts are on their face to the effect that the 1st Appellant was granted OPL 230 to explore and drill oil and a copy of the letter of grant was attached as Exhibit ‘B’. That 2nd Respondent was a director of the 1st Appellant who without the knowledge and consent of the Appellants used the in Respondent and fraudulent (Dollars) changed the name of 1st Appellant who was granted the OPL 230 to another company and eventually to the name of the 1st Respondent which was used to hijack the grant of OPL 230 from the Appellants. Also that since the 2nd Respondent effected the change; production at the OPL 230 had commenced and that under the OPL, the 1st Appellant as owners was entitled to 60% of the profit. Finally, that in order to cover the fraud, the 2nd Respondent had obtained a forged and back dated letter from the 4th Respondent claiming to have withdrawn the grant of the OPL 230 from the 1st Appellant.
The Appellants then pleaded the particulars of the fraud they asserted against the 2nd Respondent.
It cannot seriously be disputed that prima facie, if the above facts, were proved by the Appellants they would clearly be entitled to a remedy against the 1st and 2nd Respondents in law. Put another way, the law will clearly recognize and confer on the Appellants their right to seek for a remedy against the 1st and 2nd Respondents if these facts were to be proved by the Appellants. The facts show that the 1st Appellant owns OPL 230 which was granted vide Exhibit ‘B’ attached to the statement of claim was used by the 1st and 2nd Respondents without its knowledge and consent to drill and produce oil. Exhibit ‘B’ prima facie supports the averment in paragraph 1 of the Appellants’ statement of claim that it was in fact granted the OPL 230 by the 4th Respondent on 16/9/1991 and by paragraph 5, that the requisite official fees were paid as indicated in Exhibit ‘D’ attached to the statement of claim.
The averments in paragraphs 1 and 5 as well as Exhibits ‘B’ and ‘D’ leave no doubt that the 1s Appellant was granted the OPL 230 and therefore the owner thereof, prima facie. The facts in paragraphs 6, 7, 8, 9, 10, 11, 16 and Exhibits G, H, J and L also prima facie show that the 1st and 2nd Respondents had infringed on the ownership right of the 1st Appellant over the OPL 230.
Then the averments in paragraphs 11 and 12 of the statement of claim show the loss or damages the Appellants had suffered as a result of the infringement of their ownership right of OPL 230 by the 1st and 2nd Respondents. So the existence of the ownership right of OPL 230, the infringement of the right as well as the resulting injury, loss or damages to the Appellants have prima facie been disclosed by the facts averred by the Appellants in their statement of claim. The facts have shown a wrongful act by the 1st and 2nd Respondents to the 1st Appellant’s right of ownership of OPL 230 which has occasioned them the consequential loss or damages set out in the claim.
In the circumstances, the combination of the facts contained in the Appellants statement of claim would if proved at the trial, entitle them to a judicial relief or remedy against the 1st and 2nd Respondents in particular. A cause of action or a reasonable cause of action as defined in the authorities cited in this judgment has been disclosed in the statement of claim to enable the Appellants to maintain their action against the Respondents. Once again, it should be noted that at this stage the chances of success or failure of the Appellants claim is not relevant for consideration. Whether or not the claims would succeed would be relevant at the stage of proof.
For that reason, it was an error for the Federal High Court to go into the requirement of proof of whether the 1st Appellant had fulfilled all the conditions set out in Exhibit ‘B’ to enable it claim ownership right over the OPL 230. That Exhibit ‘B’ prima facie shows that 1st Appellant was granted right of ownership of the OPL 230 which it can protect if threatened or defend if infringed.
The right of action is undoubtedly disclosed by the facts deposed in paragraphs 1 and 5 as well as Exhibits ‘B’ and ‘D’ attached to the Appellants’ statement of claim and the acts of the 1st and 2nd Respondents deposed to in the statement of claim show prima facie that the right of the Appellants was infringed upon by such acts which if proved, the law recognizes that the Appellants would be entitled to a judicial remedy against the 1st and 2nd Respondents. I must emphasise that whether or not the Appellants had fulfilled the conditions contained in Exhibit ‘B’ in order to succeed in the claims against the Respondent would depend on the evidence to be adduced at the trial. As rightly submitted by the learned Counsel for the Appellants, the law is that pleadings shall contain only facts and not evidence by which such facts are to be proved at the trial. In addition to the cases cited by learned Counsel on the point, see also:-
ABUBAKAR v. JOSEPH (2008) 8 MJSC 1. OJOH v. KAMALU (2006) ALL FWLR (291 978.
EWULU v. NWANKPU (1991) 8 NWLR (210) 487. On the face of the pleadings, the Appellant had averred that they had paid the official fees for the grant of the OPL 230 and pleaded the cheques, copies of which were attached as Exhibit ‘D’. These are sufficient material facts that are required to show the accrual of the right of action to the Appellants. Once more, the Federal High Court was wrong to have asked for more in proof of the fact deposed by the Appellants that they had paid the requisite official fees for the grant of the OPL 230 at the stage of determining whether the statement of claim disclosed a cause of action or a reasonable cause of action.
For the above reasons, I resolve the issue in favour of the Appellants and find that the combination of the facts pleaded in their statement of claim along with the Exhibits ‘B’ and ‘D’ annexed thereto, show and disclose a reasonable cause of action against the 1st and 2nd Respondents in particular.
In the result, I find merit in the appeal and allow it. The decision of the Federal High Court dismissing the Appellant’s suit on ground of non-discloswe of a cause of action against the 1st and 2nd Respondents is hereby set aside.
The Appellants’ suit is hereby ordered to be remitted to the Chief Judge of the Federal High Court for assignment to another Judge for determination.
Costs assessed at N50,000 are awarded in favour of the Appellants against the 1st and 2nd Respondents.
PAUL ADAMU GALINJE, J.C.A.: My learned brother Garba JCA has ably considered all the issues submitted by both parties in this appeal. I have nothing to add, except to concur with the conclusion arrived thereat by joining my learned brother in allowing this appeal.
I endorse all the consequential orders for a retrial by the lower court and the order on cost.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother MOHAMMED LAWWAL GARBA, JCA just delivered and I agree with the reasons given therein and the conclusion reached.
I am also of the view that there is merit in this appeal and it is allowed by me.
I abide by the consequential orders.
Appearances
Mr. Okey Uzoho, A. U. Tony-Aniebue (Mrs.) and M.U. AsogwaFor Appellant
AND
Tope Solola, Adeyemi Adeyinka, Aminadab Adegboro (Mrs.)
The 3rd Respondent was not represented. He was duly served with hearing notice of the appeal on 13/2/11 through Counsel.
H. D. BelgoreFor Respondent
