SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED V. ELDER BARIBOR N. SAAKPA & ANOR
(2012)LCN/5326(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of April, 2012
CA/PH/481/2009 (R)
RATIO
PROCEDURE: CONCEPT OF ABUSE OF COURT PROCESS
An abuse of court process concept has been exhaustively explained by Adekeye JSC in R- BENKAY NIGERIA LIMITED V. CADBURY (NIGERIA) LIMITED IN SUIT No. SC 29/2006 delivered on 23/3/2012 thus;
“The concept of abuse of court process relying on numerous decided authorities is imprecise. It involves circumstances and situations of infinite variety and conditions. But a common feature of it is the improper use of judicial process by a party in litigation to intefere with the due administration of justice.” PER T. O. AWOTOYE J.C.A
INJUNCTION: WHETHER AN UNDERTAKING AS TO DAMAGES IS A SINE QUA NON TO THE GRANT OF MAREVA INJUNCTION
It is trite law that an undertaking as to damages is a sine qua non a the grant of mareva injunction. See IFC V. DSNL OFFSHORE LTD (2008) 7 NWLR (PT. 1087) at 603; and SOTUMINU V. OCEAN STEAMSHIP NIG. LTD (supra). PER T. O. AWOTOYE J.C.A
INJUNCTION: CIRCUMSTANCES WHERE AN ORDER OF MAREVA INJUNCTION WILL NOT BE GRANTED
An order of Mareva injunction cannot be granted based on such an empty undertaking as to damages. This application also fails on this. It will be completely worthless to extract an undertaking from a person who is incapable of satisfying that undertaking. See LEASING CO. NIG. LTD V. TIGER IND. LTD (2007) 14 NWLR 1054 P.346 at 381. PER T. O. AWOTOYE J.C.A
INJUNCTION: WHETHER MAREVA INJUNCTION IS A PRE-JUDGMENT REMEDY
Is a mareva injunction a pre-judgment remedy? The answer to my mind is, yes it is. As it is a pre-judgment remedy at the court of first instance so it is a pre-judgment at the appellate court. The difference however lies in the judgment referred to. In the court of first instance it is the judgment of the court. However at the appellate court it is the judgment of the appellate court being sought to be secured. PER T. O. AWOTOYE J.C.A
PROCEDURE: PRINCIPLES GOVERNING AMENDMENT OF PROCESSES IN COURT
The principles governing amendment of processes in court are clear and have been well set out in the various written addresses of learned counsel. Courts are to decide the rights of parties and not to punish them for their mistake. An amendment which is not fraudulent or intended to overreach outsmart or cheat will be allowed if it will not cause injustice to the other party. See AMADI v. APLIN & CO. LTD (1972) 1 ALL NLR 260; OGUNTIMEHIN v. GUBERE (1964) 1 ALL NLR 176; UBN PLC V. DAFIAGA (2000) 1 NWLR (pt. 640) 175 ALSTHOM S.A. V. SARAKI (2000) 14 NWLR (PT. 687) 413. PER T. O. AWOTOYE J.C.A
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED Appellant(s)
AND
1. ELDER BARIBOR N. SAAKPA
2. SATURDAY GIADOM
(Suing for themselves and on behalf of members of Saakpa family of Baranyowa-Dere Gokana Local Government Area of Rivers State). Respondent(s)
T. O. AWOTOYE J.C.A (Delivering the Leading Ruling): This is the ruling on the two applications filed by the respondents/cross appellant/applicant vide their motions on 10/5/2011.
The respondent/cross-appellants/applicants had earlier obtained judgment against the appellant/cross-respondent/respondent on 5/9/2009 in a judgment delivered by E.S. Chukwu J. of the Federal High Court at Uyo.
The appellant/respondent being dissatisfied with the judgment filed on appeal against it on 7/9/2009 and subsequently applied for stay of execution of the said judgment.
The Federal High court granted a conditional stay of execution directing the appellant to provide a corporate guarantee supported by a resolution of Board of Directors of the Appellants that the S.P.D.C. would pay immediately the judgment debt should they loose on appeal.
The appellant again applied for and was granted variation of the order of conditional stay of execution on 20/1/2011, whereby an order of unconditional stay of execution was granted.
The respondents/applicants on 10/5/2011 brought this application praying as follows:-
“1. AN ORDER OF MAREVA INJUNCTION restraining the appellant/respondent, pending the determination of this appeal, from disposing of, selling and or otherwise transferring its interests in its assets in Nigeria to any person, company, corporate body or organization, including its assets listed herein under, viz:
i. oil Mining leases and or concessions including OML4, OML11, OML13, OML17, OML18, OML20, OML21, OML22, OML23, OM L24, OML25, OML26, OML27, OML28, OM L29, OML30, OML31, OM L32, OML33, OML 34, OML35, OML36, OML38, OM L40, OML41, OML42, OML43, OML45, OM L46, OM L71, OML72, OML74, OML77, OML79 & OPL238.
ii. The appellant/respondent’s residential Estate known as and lying and situate at Shell Residential Industrial Area, Rumuobiakani, Port Harcourt, Rivers State Nigeria.
iii. The appellant/respondent’s residential Estate known as lying and situate at Shell Residential Area, Aba Road, port Harcourt, Rivers State Nigeria.
iv. Appellant/Respondent’s Export Terminal at Bonny Rivers State of Nigeria.
v. Appellant/Respondent’s Terminal at Forcados, Delta State of Nigeria.
vi. Appellant/Respondent’s Industrial and Residential Estate at Ogunu, Warri, Delta State of Nigeria.
2. FURTHER AND OR IN THE ALTERNATIVE, AN ORDER directing the appellant/respondent to deposit in an interest yielding Bank Account with a reputable Bank to be determined by this Honourable court, in the name of the Deputy chief Registrar of this Honourable court, the sum of N5, 502,500,000.00 (Five Billion, Five Hundred and Two Million, Fiver Hundred Thousand Naira) only and interest on the said sum at the rate of 10% (Ten percent) per annum from the 5th day of August, 2009 till the date the said sum shall be deposited in the said Bank Account, pending the determination of this Appeal.
3. FURTHER STILL AND OR IN THE ALTERNATIVE, AN ORDER directing the Appellant/Respondent to deposit with the Deputy Chief Registrar of this Honourable court a Bank Guarantee from a reputable Bank to be, determined by this Honourable court guaranteeing the payment of the sum of N5, 502,500,000.00 (Five Billion, Five Hundred and Two Million, Fiver Hundred Thousand Naira) only awarded by the lower court and interest on the said sum at the rate 10% (Ten percent) per annum from the 5th day of August, 2009 till the date of the delivery of judgment by this Honourable court, pending the determination of this Appeal.
4. For such further or other Orders as this Honourable court may deem fit to make in the circumstances of this case.
FURTHER TAKE NOTICE that the grounds for this application are as follows:
1. The sale, disposal or transfer of the assets of the Appellant/Respondent in Nigeria will make it impossible for the Respondents/Applicants to enforce the judgment in their favour for the sum of N5,502,500,000.00 (Five Billion, Five Hundred and Two Million, Fiver Hundred Thousand Naira) only granted by the Federal High Court in Suit No. FHC/UY/CS/16/2009 (Suit No. FHC/PH/CS/438/2005), if same is upheld by this Honourable Court.
2. The sale, disposal or transfer of the Appellant/Respondent’s assets in Nigeria will make it impossible for the Respondents/Applicants to reap the benefits of the aforesaid judgment in its favour, if this Honourable court upholds the said judgment of the lower court;
3. The safe, disposal or transfer of the assets of the Appellant/Respondent will render the appeal nugatory and make this Honourable court to act in vain in the event of this Honourable court deciding to uphold the judgment of the lower court.
4. The sale, disposal or transfer of the assets of the Appellant/Respondent in Nigeria will make it possible for the said appellant/respondent to avoid the liability imposed on it by the aforesaid judgment of the Federal High court, if same is upheld by this Honourable court.
5. The deposit of the aforesaid sum and the accrued interests will secure the judgment of this Honourable court, should this Honourable court deliver judgment in favour of the respondents/applicants.
6. Furnishing of a bank guarantee by the appellant/respondent to cover the judgment debt and the accrued interest will secure the judgment of this Honourable Court, should this Honourable court deliver judgment in favour of the respondents/applicants.
7. Considering the peculiar circumstances of this matter, especially the financial crises and huge debt burden of over one Billion Dollars of the Appellant/Respondent, it is in the interest of justice to grant the orders sought for by the Respondent/Applicants.”
It needs be noted that the order of this court granting unconditional stay of execution has neither set aside nor varied as at the time of filing this application.
The motion on notice was supported by a 34 paragraph affidavit and a written address.
The appellant/respondent in reaction filed 42 paragraph counter affidavit and a written address to oppose the application.
The following averments in the applicants supporting affidavit are very pertinent in the consideration of this application. I quote them hereunder for ease of reference.
“15. That the Appellant/respondent (SPDC) has several assets in Nigeria including ownership interests in the following assets:
i. Oil Mining leases and or concessions including OML4, OML11, OML13, OML17, OML18, OML20, OML21, OML22, OML23, OML24, OML25, OML26, OML27, OML28, OML29, OML30, OML31, OML32, OML33, OML 34, OML35, OML36, OML38, OML40, OML41, OML42, OML43, OML45, OM L46, OM L71, OML72, OML74, OML77, OML79 & OPL238.
ii. The appellant/respondent’s office complex and registered office known as and lying and situate at shell Residential Industrial Area, Rumuobiakani, Port Harcourt, Rivers State of Nigeria.
iii. The appellant/respondent’s residential Estate known as lying and situate at shell Residential Area, Aba Road, Port Harcourt, Rivers State Nigeria.
iv. Appellant/Respondent’s Export Terminal at Bonny Rivers State of Nigeria.
v. Appellant/Respondent’s Terminal at Forcados, Delta State of Nigeria.
vi. Appellant/Respondent’s Industrial and Residential Estate at Ogunu, Warri, Delta State of Nigeria.
The appellant/respondent’s concessions or oil mining leases are also shown in the appellant/respondent’s Annual Returns and corporate Accounts for the year 2008, a Certified True Copy whereof is filed herewith and marked as Exhibit B.
16. That the appellant/respondent (SPDC) is gradually selling off its assets in Nigeria.
17. That on the 29th day of January 2010 after the delivery of the judgment of the lower Court in issue in this appeal, the Appellant/respondent (SPDC) sold its interests in three of its oil mining concessions or leases i.e. OML4, OML38 & OML 41, for over N30 Billion. The said sale of the said OML4, 38 & 41 is also captured at page 20 of the Appellant/respondent’s (SPDC) Corporate Accounts year 2009 was filed by the Appellant/Respondent (SPDC) as an Exhibit to its counter Affidavit in these proceedings filed on the 29th day of April, 2011.
18. That while opposing the appellant/respondent’s (SPDC) application before this Honourable court for the variation of the conditional order for stay of execution granted by the lower court, the Respondent/Applicants filed a counter affidavit and a further counter Affidavit stating the aforesaid facts of the disposal of the assets of the Appellant/respondent (SPDC). The respondent/applicants went as far as exhibiting to the aforesaid Affidavits, Thisday Newspaper publications of the 11th & 16th February, 2010 where the sale of the Appellant/Respondent’s (SPDC) assets was published. File herewith and marked as Exhibits C & D are the said counter affidavit and further counter-affidavit along with the said Newspaper publications filed therewith as Exhibits.
19. That the appellant/respondent (SPDC) in its Reply affidavit to the respondents/applicants counter affidavit filed on 3rd June, 2010 vehemently denied selling its said assets. The Appellant/Respondent also denied the Newspaper reports of the safe of its said assets as untrue. In particular, the Appellant/respondent (SPDC) in paragraph 20 of its said affidavit deposed as follows:
“20 contrary to the depositions in paragraphs 27, 28 and 30 of the plaintiffs/respondents, counter affidavit, it is totally untrue that the defendant/applicant is selling its assets in Nigeria let alone to avoid paying the said judgment sum. The defendant/applicant is not aware of the publication alleged in paragraphs 29 and 30 of the plaintiff. If at all such publication existed, that publication is untrue and is hereby denied.”
A copy of the said affidavit is filed herewith and marked Exhibit E.
20. That appellant/respondent (SPDC) subsequently in its reply on points of law filed on 24th November, 2010 admitted that it has divested itself of some of its assets amounting to less than 5% of its assets. The Appellant/respondent (SPDC) also in the said reply on points of law admitted the Newspaper publication (Thisday Newspaper of 11th February, 2010 filed along with the Respondent/Applicants, aforesaid further counter-affidavit as Exhibit A1). For ease of reference we hereby reproduce the submissions of the Appellant/respondent (SPDC) in Paragraph 10.2 page 16 of the said appellant/respondent’s reply on points of law as follows:
“102 The Managing Director of the Appellant/Applicant also explained in Exhibit A1 that the less than 5% divestment made by the applicant was meant to encourage local participation in the upstream section in accordance with the Federal Government Local Content policy.”
A copy of the said Appellant/respondent’s reply on points of law is filed herewith and marked as Exhibit F.
21. That the appellant/respondent (SPDC) has once again commenced the process of disposing of more of its oil Mining Leases and assets.
22. That the aforesaid plan to dispose of the appellant/Respondent’s (SPDC) interests in some of its said Oil Mining Leases (sometimes also commonly called oil blocks) was published in the Nation Newspaper of 10th March, 2011 wherein it was reported as follows:
“Shell confirmed yesterday that four blocks were still on offer but had no further comments.
Shell has said it hopes that indigenous companies would bid…”
A copy of the said Newspaper is fired herewith and marked as Exhibit G.
23. That I saw the said publication on Friday the 18th day of March, 2011 in my village at B. Dere in the Gokana Local Government Area of Rivers State and immediately contacted and instructed out solicitors to necessary application to secure the subsisting judgment in our favour, thus leading to the filing of a motion Ex-parte and motion on Notice on the 22nd day of March, 2011.
24. That the motion on notice was promptly served on the Appellant/Respondent (SPDC).
25. That despite the service of the said motion on the Appellant/respondent (SPDC), the appellant/Respondent went on to dispose of or sell its interest in OMLS 30 & 40 amongst others for over $1.3 Billion. Filed herewith and marked as Exhibit H is the newspaper publication of the said sale of the said Appellant/Respondent assets.
26. That I know as a fact that the Appellant/Respondent (SPDC) is disposing of its interest in the aforesaid oil Mining Leases in order to avoid paying us, the Respondent/applicants, the said judgment debt.
27. That by the Appellant/Respondent’s (SPDC) own admission in paragraphs 16, 17 & 18 of a Counter-Affidavit it filed in these proceedings on the 29th day of April, 2011, there are judgments against it running into several hundreds of Billions of Naira including a judgment of over N200 Billion Naira in suit No. FHC/YNG/CS/3/05 and as well as a contingent liability arising from various court Judgments, to the tune of N9.03 Trillion Naira. That the Appellant/Respondent (SPDC) in particular in paragraphs 16,17 & 18 of the said counter affidavit stated as follows:-
“16. The defendant/respondent (SPDC) is very economically viable and does not intend to exit Nigeria or dissipate its assets as alleged or at all. The contingent liability from court judgments of the defendant/respondent as at December, 2009 is about N9.03 Trillion Naira…
17. The defendant/respondent (SPDC) has in the past and also presently been adjudged by Nigeria Courts liable in judgment sum running into several hundred of Billion of Naira and none of those judgment sum made its business operations in Nigeria or dissipate its assets to avoid payment of judgment sums.
18. In 2006, the Federal High Court adjudged the Defendant/respondent (SPDC) liable to pay over N200 Billion Naira ($1.5 Billion United States Dollars) in suit No. FHC/YNG/CS/3/05…. The matter is now on appeal at the Court of Appeal and the Supreme Court as CA/A/209/2006 and SC 290/2007 respectively. There are other Court cases in Nigeria where very huge judgment sum were awarded against the defendant/respondent (SPDC) as in suit No: FHC/YNG/CS/3/05.”
Filed herewith and marked as Exhibit J is a copy of the said counter affidavit along with the accompanying written address.
28. That the Appellant/respondent (SPDC) also in paragraph 4.3 of its Written Address filed on the 29th day of April, 2011 along with its aforesaid counter affidavit (Exhibit J) admitted its intention to sell more of its assets. For ease of reference, the appellant/respondent (SPDC) stated as follows:
4.3… Apart from the few OML’s which the defendant/respondent want to dispose as part of its port folio rationalization, the defendant/respondent has other multi Billion assets within jurisdiction which are enough to satisfy the judgment sum in this matter if and when due.”
29. That the appellant/respondent (SPDC) in paragraph 16 page 5 of its aforesaid corporate Accounts Year 2009 (Exhibit B1) disclosed that it’s in a very serious financial crisis and it has consequently resorted to huge borrowing to the tune of $1.578 Billion in order to carry on its business. In particular the said Appellant/Respondent’s (SPDC) said corporate Accounts year 2009 state as follows:-
“16. Joint Venture Financing Challenges Over the last few NNPC/SPDC/EPNL/NAOC faced serious funding challenges which have resulted in an inability to fully implement the partners technically, the agreed work programme.
The company had to borrow in order to maintain asset integrity, effect emergency repairs resulting from criminal attacks on pipelines and assets, continue with ongoing projects (avoid penalties and claims) and to meet contractual obligations to vendors. Year end borrowing position was $1.578 billion (bank overdraft – $1.451 billion, see note 4).”
30. That we the Respondents/applicants hereby enter into an undertaking in damages to indemnify the appellant/respondent in damages, if it later turns out that the order sought for herein was improperly obtained.
31. That we the respondents/applicants are farmers whose source of livelihood has since the year 2000 been destroyed and devastated by the crude oil spillage from the appellant/respondent’s (SPDC) facilities for about 11 years now and have lived without any income from the said very vast farmland nor any form of compensation from the appellant/respondent (SPDC). The Appellant/respondent (SPDC) has till date refused to clean up and remediate the aforesaid impacted land.”
In his written address the learned counsel for the applicants formulated 3 issues for determination to wit:
“(i) whether in the peculiar circumstances of this matter this Honourable court ought to grant the prayer for mareva injunction sought for in order to prevent the dissipation of the assets of the appellant/respondent before the conclusion of this appeal?
(ii) whether this Honourable court ought to order the appellant/respondent to deposit the judgment debt and interests thereon in an interest yielding Account as sought for by the respondents/applicants pending the determination the of the appeal?
(iii) whether this Honourable court ought to order the appellant/respondent to furnish a bank guarantee as sought for by the applicant?”
Learned counsel for the applicant submitted that this Honourable court had the jurisdiction to grant the order of Mareva injunction sought to restrain the appellant/respondent from dissipating its assets in the country pending the determination of the appeal. He relied on IFC V DSNL OFFSHORE LTD (2008) 7 NWLR PT 1087 page 592 at 610; BENKAY (NIG.) LTD. v. CADBURY (NIG.) PLC (2006) 6 NWLR (PT. 976) PG. 338 at 366 and other cases.
On issue 2, Wodu, learned counsel for the applicant urged the court to grant prayer No. 2 especially as the appellant had shown consistent desire to dispose of its assets in Nigeria.
On issue 3, he urged the court to order the furnishing of Bank Guarantee to secure the judgment debt as well as to secure the judgment of this court.
As aforestated the respondent filed 42 paragraph counter affidavit to oppose the application. Most pertinent among the averments in the counter affidavit are paragraph 9-28 which for clarity’ sake are quoted herein.
“9. The defendant/respondent (SPDC) is a Nigerian indigenous company registered under the laws of the Federal Republic of Nigeria. The defendant/respondent (SPDC) is a long existing Nigeria Oil Company with international reputation and excellent financial record.
10. In all the long years of its business operation in Nigeria, the defendant/respondent (SPDC) has never defaulted in the payments of any sum of money adjudged due against it either by the Nigerian Court or any other Court elsewhere. The defendant/respondent obeys all court orders and judgments. The defendant/respondent has excellent history of compliance with court judgments. The defendant/respondent has no history of avoiding liabilities both in Nigeria and elsewhere.
11. The defendant/respondent (SPDC) is a limited liability company with various fixed and floating assets and installation spread all over the Federal Republic of Nigeria. The value of the assets of the defendant/respondent in Niger runs into hundreds of Billions Naira.
12. The defendant/respondent (SPDC) is a major joint venture partner with the Federal Government of Nigeria through the Nigeria National Petroleum corporation (NNPC), Total and Agip Oil Company Joint Venture partnership. The defendant/respondent is the operator of the NNPC/SPDC/TOTAL/NAOL Joint Venture.
13. The various oil Mining Licenses 90MLs) listed in paragraph 15 of the applicant’s affidavit are held by the defendant/respondent (SPDC) in joint venture with the Federal Government of Nigeria and other joint venture partners. Under the joint venture the federal government of Nigeria, through the Nigerian National Petroleum Corporation (NNPC), hold 55% interest in those assets, SPDC holds 30% interest, Total hold 10% while Agip owns 5% stake in those assets. None of the OMLs can be sold without the prior approval of the National Assembly of Nigeria.
14. The grant of this application will adversely affect the operation of the NNPC/SPDC/TOTAL/NAOL Joint Venture and the Nigerian economy.
15. The defendant/respondent’s’ (SPDC) interest in each of the various Oil Mining Leases (OML) listed in paragraph 15 of the applicant’s affidavit for exceeds the judgment debt in this matter.
16. Apart from the various oil mining leases (OML) listed in paragraph 15 of the applicant’ affidavit, the defendant/respondent (SPDC) has other assets within jurisdiction of this Honourable Court sufficient to satisfy the judgment sum in this matter should the Defendant/appellant unsuccessfully exhaust its right of appeal. The value of each of the OML is far in excess of the judgment sum in this matter. The defendant/respondent (SPDC) has interest in over 90 (Ninety) oil Fields, 1000 (one Thousand) producing Oil Wells, 72 (Seventy Two) Flow stations, 10 (Ten) Gas plants and two major Export Terminals at Bonny and Forcados.
17. The defendant/respondent (SPDC) produces more than 85% of the total Nigeria petroleum output and contributes more than 80% of the total income of the federal government of Nigeria.
18. The defendant/respondent (SPDC) is firmly established as an oil giant in Nigeria and has no intention of closing down its operation in Nigeria. The port folio rationalization by the defendant/respondent is in compliance with the federal government local content policy.
19. It is normal for an oil company the size of the defendant/respondent (SPDC) to dispose of few of its assets in the normal course of its business operation. Such asset management practice is call port folio rationalization and does not affect in anyway the business and operational/financial stability of the defendant/respondent (SPDC). The defendant/respondent (SPDC) has operated in Nigeria for at least since 1956 and has no intention exiting Nigeria.
20. The defendant/respondent (SPDC) is very economically viable and does not intend to exit Nigeria or dissipate its assets as alleged or at all. The contingent liability from court judgment of the defendant/respondent as at December 2009 is about 9.03 Trillion Naira. Now produced, shown to me and marked Exhibit SPDC 1 is the defendant/respondent’s latest Annual Report for the Year Ending 2009.
21. The defendant/respondent (SPDC) has in the past and also presently been adjudged by Nigerian Court liable in judgment sum running into several hundreds of Billions of Naira and none of those judgment sum made the defendant/respondent (SPDC) close down its business operations in Nigeria or dissipate its assets to avoid payment of judgment sums.
22. In 2006, the Federal High Court adjudged the defendant/respondent (SPDC) liable to pay over 200 Billion Naira (1.5 Billion United States Dollars) in Suit No: FHC/YNG/CS/3/05. Notwithstanding the said huge judgment sum, the defendant/respondent (SPDC) has strongly remained in operation with no intention of exiting Nigeria or dissipating its assets to avoid pay the huge judgment sum. The matter is now on appeal at the Court of Appeal and the Supreme Court as CA/A/209/2006 and SC 290/2007 respectively. There are other court cases in Nigeria where very huge judgment sum were awarded against the defendant/respondent (SPDC) as in Suit FHC/YNG/CS/3/05.
23. The judgment sum in the present case is a little above 5 Billion Naira. The 5 Billion Naira judgment sum in the present case is considerably little compared to the very huge judgment sums in other cases such as in suit No: FHC/YNG/CS/3/05 to warrant his application.
24. The present action was filed at the lower court in year 2005, a period of over 6 years from date. The judgment of the lower court was made in August 5, 2009 a period of almost two years form date. The parties concluded filing of Briefs in the defendant/respondent’s present appeal since January 22, 2010, over a year from date. The defendant/respondent has continued to operate in Nigeria despite the judgment sum in this matter and will continue to do so with no intention of dissipating its assets within jurisdiction.
25. The main appeal by the defendant/respondent (SPDC) was ripe for hearing since January 22, 2010 and this Honourable court fixed it for hearing on May 19, 2010. The Plaintiffs/Applicant prevented and/or frustrated the appeal from being heard on May 19, 2010 by filing a Motion on Notice in the matter a day before the hearing date fixed by this court.
26. A day before the date fixed for the hearing of the SPDC’S appeal, the plaintiff/Applicant filed a Motion on Notice on May 18, 2010 seeking several reliefs to properly prosecute its cross-appeal. The inability of this Honourable Court to hear this appeal up till date is as a result of various applications filed by the Plaintiff/Applicants. There is no urgency to warrant the grant of the present application.
27. The Federal High court had granted the defendant/respondent (SPDC) a conditional stay of execution pending the determination of this appeal. Upon further application to this Honourable court, this Honourable court on January 20, 2011 granted unconditional stay of execution of the judgment of the lower court pending the determination of this appeal.
28. The defendant/respondent (SPDC) has the capacity and will pay the judgment sum to the plaintiffs/applicant if and when the defendant/respondent (SPDC) finally exhausts its constitutional right of appeal without success. Also, the defendant/respondent (SPDC) has assets and facilities within jurisdiction enough to satisfy the judgment debt if and when the judgment sum is due and payable.”
Learned senior counsel for the respondent, Chief Richard Akinjide SAN also filed written address to oppose the applicants’ motion on notice. Learned senior counsel formulated 5 issues for determination on page 9 of his written address as follows:-
“a. Whether the plaintiffs/applicants relief for mareva injunction is a post judgment remedy and maintainable after the plaintiffs, claim had already been heard and determined and judgment delivered?
b. In case this Honourable court holds that the application for Mareva Injunction can be made to the Court of Appeal post judgment by virtue section 15 of the Court of Appeal Rules, is the present application competent having regard to Order 7 Rule 4 of the Court of Appeal Rules?
c. Is an Order of Mareva Injunction available to the plaintiff/applicants after this Honourable court of appeal has granted unconditional stay of execution of the judgment sum in this matter pending the determination of the appeal.
d. Whether this Honourable Court of Appeal has jurisdiction to either consider and/or grant the alternative reliefs sought by the plaintiff/applicants after this Honourable court has become Functus officio as regards all applications stay of execution in this matter?
e. Assuming but without conceding that Mareva Injunction a post judgment remedy, is it judicial and judicious, in the circumstances of his case, for this Honourable Court to grant the plaintiff/applicant application?”
Chief Richard Akinjide SAN on issue No. 1 submitted that Mareva injunction is a pre-judgment remedy. He cited SOTUMI NU V. OCEAN STEAMSHIP (NIG.) LTD (1992) 5 NWLR (PT. 239) 1 at 29. He urged the court to prefer the case to IFC V. DSNC OFFSHORE LTD (supra) relied on by the applicant.
He contended that a mareva injunction was only granted upon a motion exparte. He cited THIRD CHANDRIS CORPORATION V. UNIMARINE S.A (1979) 1 QB 645 at 669.
On issue No. 2, learned senior counsel submitted that this application was made to the Court of Appeal in the first instance contrary to Order 7 Rule 4 of the Court of Appeal Rules 2011 hence it was incompetent.
On issue No. 3 learned senior counsel for the respondent submitted that the earlier order of unconditional stay of execution granted by this court and the order of mareva junction being sought by the applicant were mutually exclusive. He posited that the applicants were wrongly urging the court to overrule and review the earlier order of unconditional stay of execution.
He relied on UNION BANK NIG. LTD v. EMOLE (1991) 9 NELR (PT. 213) 74 at 83 and C.G.F. C. – SPA v. NPA & ANOR (1972) NSCC 706 at 708 – 709.
On issue No. 4 learned senior counsel for the respondent submitted that the applicants could not apply for variation of the order of unconditional stay of execution in this court except on appeal. He relied on C.G.F.C. – SPA V. NPA ANOR (supra). He submitted that this court was functus officious.
On issue No. 5 learned senior counsel for the respondent submitted that it would be against proper exercise of judicial discretion to grant this application.
He submitted, relying on SOTUMINU v. OCEAN STEAMHIP (NIG.) LTD (supra) and NYEMELUKWE v. ATAMAH (1993) 5 NWLR (PT. 293) 350 at 366 and ANIKE V. EMEHELU (1990) 1 NWLR (PT. 128) 603 that in view of the averment of the applicants in paragraph 30 of their supporting affidavit that they are poor farmers the undertaking as to damages made by them was bare.
He urged the court to dismiss the application.
The applicants also filed 15 paragraph reply affidavit in response to the counter-affidavit of the respondent. Wodu for the respondents also filed reply address on points of law to react to the objection of the respondent.
I have carefully considered the argument canvassed on both sides.
I agree with the learned senior counsel for the respondent that the application of the applicant lacks merit for the following reasons:
(1) The contention of the applicant as per paragraphs 166 and 17 of their supporting affidavit is as follows:
“16. That the appellant/respondent (SPDC) is gradually selling off its assets in Nigeria.
17. That on the 29th day of January 2010 after the delivery of the judgment of the lower Court in issue in this appeal, the Appellant/respondent (SPDC) sold its interests in three of its oil mining concessions or leases i.e. OML4, OML38 & OML 41, for over N30 Billion. The said sale of the said OML4, 38 & 41 is also captured at page 20 of the Appellant/respondent’s (SPDC) Corporate Accounts Year 2009 was filed by the Appellant/Respondent (SPDC) as an Exhibit to its Counter Affidavit in these proceedings filed on the 29th day of April, 2011.”
The respondent denied this in paragraph 9 – 21 of the its counter affidavit thus:
“9. The defendant/respondent (SPDC) is a Nigerian indigenous company registered under the laws of the Federal Republic of Nigeria. The defendant/respondent (SPDC) is a long existing Nigeria Oil Company with international reputation and excellent financial record.
10. In all the long years of its business operation in Nigeria, the defendant/respondent (SPDC) has never defaulted in the payments of any sum of money adjudged due against it either by the Nigerian Court or any other Court elsewhere. The defendant/respondent obeys all court orders and judgments. The defendant/respondent has excellent history of compliance with court judgments. The defendant/respondent has no history of avoiding liabilities both in Nigeria and elsewhere.
11. The defendant/respondent (SPDC) is a limited liability company with various fixed and floating assets and installation spread all over the Federal Republic of Nigeria. The value of the assets of the defendant/respondent in Niger runs into hundreds of Billions Naira.
12. The defendant/respondent (SPDC) is a major joint venture partner with the Federal Government of Nigeria through the Nigeria National Petroleum Corporation (NNPC), Total and Agip Oil Company Joint Venture partnership. The defendant/respondent is the operator of the NNPC/SPDC/TOTAL/NAOL Joint Venture.
13. The various oil Mining Licenses 9OMLs) listed in paragraph 15 of the applicant’s affidavit are held by the defendant/respondent (SPDC) in joint venture with the Federal Government of Nigeria and other joint venture partners. Under the joint venture the federal government of Nigeria, through the Nigerian National Petroleum Corporation (NNPC), hold 55% interest in those assets, SPDC holds 30% interest, Total hold 10% while Agip owns 5% stake in those assets. None of the OMLs can be sold without the prior approval of the National Assembly of Nigeria.
14. The grant of this application will adversely affect the operation of the NNPC/SPDC/TOTAL/NAOL Joint Venture and the Nigerian economy.
15. The defendant/respondent’s (SPDC) interest in each of the various Oil Mining Leases (OML) listed in paragraph 15 of the applicant’s affidavit for exceeds the judgment debt in this matter.
16. Apart from the various oil mining leases (OML) listed in paragraph 15 of the applicant’ affidavit, the defendant/respondent (SPDC) has other assets within jurisdiction of this Honourable court sufficient to satisfy the judgment sum in this matter should the Defendant/appellant unsuccessfully exhaust its right of appeal. The value of each of the OML is far in excess of the judgment sum in this matter. The defendant/respondent (SPDC) has interest in over 90 (Ninety) oil Fields, 1000 (One Thousand) producing oil wells, 72 (seventy Two) Flow stations, 10 (Ten) Gas plants and two major Export Terminals at Bonny and Forcados.
17. The defendant/respondent (SPDC) produces more than 85% of the total Nigeria Petroleum output and contributes more than 80% of the total income of the federal government of Nigeria.
18. The defendant/respondent (SPDC) is firmly established as an oil giant in Nigeria and has no intention of closing down its operation in Nigeria. The port folio rationalization by the defendant/respondent is in compliance with the federal government local content policy.
19. It is normal for an oil company the size of the Defendant/respondent (SPDC) to dispose of few of its assets in the normal course of its business operation. Such asset management practice is call port folio rationalization and does not affect in anyway the business and operational/financial stability of the defendant/respondent (SPDC). The defendant/respondent (SPDC) has operated in Nigeria for at least since 1956 and has no intention exiting Nigeria.
20. The defendant/respondent (SPDC) is very economically viable and does not intend to exit Nigeria or dissipate its assets as alleged or at all. The contingent liability from court judgment of the defendant/respondent as at December 2009 is about 9.03 Trillion Naira. Now produced, shown to me and marked Exhibit SPDC 1 is the defendant/respondent’s latest Annual Report for the year Ending 2009.
21. The defendant/respondent (SPDC) has in the past and also presently been adjudged by Nigerian court liable in judgment sum running into several hundreds of Billions of Naira and none of those judgment sum made the defendant/respondent (SPDC) close down its business operations in Nigeria or dissipate its assets to avoid payment of judgment sums.
It is crustal to this application that there must be a real and imminent risk of the respondent removing assets form jurisdiction and thereby rendering nugatory any judgment which the plaintiff might obtain. See MAREVA COMPANIES NAVIERA S.A. V. INTERNATIONAL BLUKERARRIERS S.A. (1980) 1 ALL ER 213; SOTUMINU V. OCEAN STEAM SHIPPING NIGERIA LTD (1992) 5 NWLR (PT. 329); YONIF V. SALAMA (1980) ALL ER 405.
There is no doubt that paragraph 16 and 17 of the supporting affidavit and the afore quoted paragraphs of the counter-affidavit of the respondent are conflicting on this core issue, It is not for the applicant to show that the respondent is disposing a fraction of its assets but that such a proportion that is large and threatening enough to the recovery of the judgment debt from the respondent, The applicant must show a real and imminent risk.
It is the duty of the applicant to show the imminence of the risk, the meaning is the application fails on this score; as this fundamental point has not been proved.
(2) An order of mareva injunction is an indirect way of preserving the property of the respondent and depriving him of the right to use the property as he so wishes. It is a form of restraint on the respondent on the use of his property. It speaks what is contrary to an order of unconditional stay of execution. The two orders are on collision course. With the pending order of unconditional stay of execution, not having been varied it is in my humble opinion an abuse of court process to apply for an order of Mareva injunction.
An abuse of court process concept has been exhaustively explained by Adekeye JSC in R- BENKAY NIGERIA LIMITED V. CADBURY (NIGERIA) LIMITED IN SUIT No. SC 29/2006 delivered on 23/3/2012 thus;
“The concept of abuse of court process relying on numerous decided authorities is imprecise. It involves circumstances and situations of infinite variety and conditions. But a common feature of it is the improper use of judicial process by a party in litigation to intefere with the due administration of justice.”
In the light of the above I agree with learned senior counsel for the respondent that with the order of unconditional stay of execution earlier granted in this court the order of mareva injunction being sought and indeed other orders for stay of execution being prayed for are mutually exclusive
3. It is trite law that an undertaking as to damages is a sine qua non a the grant of mareva injunction. See IFC V. DSNL OFFSHORE LTD (2008) 7 NWLR (PT. 1087) at 603; and SOTUMINU V. OCEAN STEAMSHIP NIG. LTD (supra).
In paragraph 31 of the supporting affidavit of the applicants they deposed thus.
“3. That we the respondents/applicants are farmers whose source of livelihood has since the year 2000 been destroyed and devastated by the crude oil spillage from the appellant/respondent’s (SPDC) facilities for about 11 years now and have lived without any income from the said very vast farmland nor”
But in paragraph 30 of the same affidavit they stated as follows:
“30. That we the Respondents/applicants hereby enter into an undertaking in damages to indemnify the appellant/respondent in damages, if it later turns out that the order sought for herein was improperly obtained.”
It does appear to me, and I am in agreement with learned senior counsel for the respondent on this, that an undertaking as to damages given by a person without any source of livelihood is empty and bare.
An order of Mareva injunction cannot be granted based on such an empty undertaking as to damages. This application also fails on this. It will be completely worthless to extract an undertaking from a person who is incapable of satisfying that undertaking. See LEASING CO. NIG. LTD V. TIGER IND. LTD (2007) 14 NWLR 1054 P.346 at 381.
There-is need to discuss before concluding some legal issues raised by learned senior counsel for the respondent in this application:
(1) whether or not a mareva injunction is a pre-judgment remedy?
(2) whether or not the present application is competent having regard to order 7 rule 4 of the Court of Appeal Rules.
It needs be stated first that judgment was delivered at the court below in this case on 7/8/2009 and the record of appeal was transmitted on 28/10/09. This application was filed on 10/5/2011 by which time the lower court was functus officio and lacked jurisdiction to entertain any further application on this matter. Order 7 Rule 4 of the Court of Appeal Rules will therefore in my humble opinion not apply to this application as there are special circumstances which made it impracticable to make such an application to the court below.
Is a mareva injunction a pre-judgment remedy? The answer to my mind is, yes it is. As it is a pre-judgment remedy at the court of first instance so it is a pre-judgment at the appellate court. The difference however lies in the judgment referred to. In the court of first instance it is the judgment of the court. However at the appellate court it is the judgment of the appellate court being sought to be secured.
It must be noted that this court has been invested with wide powers under section 15 of the Court of Appeal Act 2004 to give orders of injunction (mareva injunction) inclusive in appropriate cases.
Section 15 of the Act 2004 reads:
“15. The Court of Appeal may, from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and any make an interim order or grant any injunction which the court below is authorized to make or grant and may direct necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other direction as to the manner in which the court below shall deal with the case in accordance with the powers of the court, or, in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
I have already stated in this ruling that the Respondent/Cross-Appellant/Applicant case does not fall within the deserving category.
See IFC v. DSNL OFFSHORE LTD (2008) 7 NWLR (PT. 1087) 592 at 602.
In the final analysis I hold that this application lacks merit it is according dismissed.
As aforestated, the applicants on the same day filed another application praying for the following orders:
“1. AN ORDER granting leave to the respondent/cross-appellants/applicants to amend the cross-appellants Notice of Appeal filed on the 5th day of November 2009 in the manner shown in the memorandum of Amendment filed herewith.
2. AN ORDER granting leave to the respondent/cross-appellants/applicants to amend the cross-appellants brief of argument in the manner of shown in the memorandum of Amendment filed herewith.
3. AN ORDER deeming as properly filed and served the Respondent/cross-appellants Amended Notice of cross appeal filed herewith.
4. AN ORDER; deeming as properly filed and served the respondents cross-appellants Amended Brief of Argument filed herewith.
5. For such further or other orders as this Honourable court may deem fit to make in the circumstances of this case.
The ground for the application as stated on body of the motion paper are:
“1. The Respondent/Cross-Appellants, counsel while having a conference in respect of this matter on the 2nd day of May, 2011 realised that there was need to amend the Notice of Appeal filed by the Cross-Appellant inter alia by adding to the said Notice of Appeal in place of Ground of Appeal No: 1 therein, an additional Ground of Appeal to effectively raise the issue of the failure of the lower Court to have awarded in favour of the cross-appellants, the sum of N5, 085,375,245.00 claimed and proved as special damages by the cross-appellants.
2. The said cross- appellants’ counsel in the said conference also realized that there is the need to inter alia amend the cross-appellants’ Brief in order to effectively canvass the said issue of the failure of the lower court to have awarded in favour of the cross appellants the special damages claimed and proved by the cross-appellants.
3. The Cross-appellants’ counsel in the said conference, also decided to seek for leave to effect other minor amendments to the said cross-appellant/applicants Notice of Appeal and brief of argument in order to effectively put forward the case of the Cross-Appellant/Applicants.
4. The additional Grounds of Appeal sought to be introduced by the amendment raises a very serious issue of law for the determination of this Honourable Court.
5. The amendments sought for will enable this Honourable court to fully and effectually determine ail the issues in controversy in this appeal.
6. Appropriate filing fees have been paid for the said proposed amended Notice of Cross-Appeal and Amended Cross-Appellants, Brief of Argument.
7. It is in the interest of justice to grant the prayers sought for in this application.”
The application is supported by 14 paragraph affidavit and a written address.
In the written address learned counsel for the applicant submitted that it was the issue of failure of the lower court to award the special damages of N5, 085,375,245.00 claimed and proved by the cross-appellants that the cross-appellants were seeking to raise by the said additional grounds of appeal. He added that the proposed ground of appeal raised very serious and substantial issues of law. He stated further that there was already an existing competent ground of appeal and so by the authority of JOPANPUTRA V. NDUBUISI (2009) 8 NWLR (PT. 1144) at page 454 the leave to add additional ground of appeal should be granted. He submitted that the proposed amendment was to ensure that the complaints of the cross-appellant against the judgment of the lower court were effectively brought out and so should be allowed. He relied on N.Y. A.M. Co. PLC V. ALL MOTORS (NIG.) PLC 2009 17 NWLR PART 1169 page 135 at 159.
He contended that the fact that briefs of argument had been filed and exchanged and the appeal ready for hearing would not prevent the court from allowing an amendment on the Notice and Grounds of Appeal as well as on briefs of argument. He cited PHARMATEK INDUSTRIAL PROJECTS LIMITED V. OJO (1996) 1 NWLR (PT. 424) page 332 at 338.
He finally urged the court to grant the application.
The respondent to the application filed a 38 paragraph counter affidavit to oppose the application; Paragraphs 26-28 of the counter affidavit capture the reasons for the opposition of the respondent to the application.
Paragraphs 26 -28 of the counter affidavit read:
“26. The present application will prejudice and overreach the appellant/cross-respondent (SPDC). The particulars of prejudice and/or overreaching are as follows:-
a. This application, if granted, will effectively change the substance of the cross appellants/applicant cross-appeal on which issues have been joined in the briefs.
b. The original Notice of Cross-Appeal complains against the failure of the lower court to award N85, 375,245 as the balance of what the cross Appellants/Applicants claimed as special damages. The amendment sought in this application seeks to claim the sum of N5, 085,375,245 (Five Billion, Eight Five Million, Three Hundred and seventy Fiver Thousand, Two hundred and forty five Naira) as special damages.
c. The cross-appellants/applicants only decided to seek the present amendment after it received and read the appellant/cross-respondent (SPDC) cross-respondent’s brief to which they have no good answer.”
d. This amendment if and when granted, will overreach the arguments in the cross-Respondent’s brief of arguments which is already filed and served on the cross appellants/applicants.
e. The prejudice to be occasioned by the grant of this application, if at all, cannot be compensated by cost.
27. This application is made in bad faith and if and when granted, will result in absurdities. Particulars of bad fifth and absurdities:
a. The total plaintiff’s claims at the lower court is N10, 000,000,000 broken down as follows:
i. Special damages = N5, 085,375,245 (Five Billion, Eight Five Million, Three Hundred and Seventy Fiver Thousand, Two hundred and forty five Naira)
ii. Exemplary damages = N4, 014,624,75 (Four Billion Fourteen Million Six Hundred and Twenty Four Thousand Seven Hundred and Fifty Five Naira).
iii. General damages = N900, 000,000 (Nine Hundred Million Naira)
b. The lower court had already grant a blanket sum of N5 Billion Naira to the cross-appellant.
c. The cross-appellants/applicant had also argued in support of the validity of the award of N5, 000,900,000.00 (Five Billion Naira) in their respondents’ brief in the main appeal.
d. If this application is granted, the cross appellant/applicants will have been allowed by this Honourable court to seek to recover special damage for N5, 085,375,245 (Five Billion, Eight Five Million, Three Hundred and Seventy Five Thousand, Two hundred and forty five Naira) apart the N5,000,000,000.00 (Five Billion Naira) already granted to the cross-appellant/applicants argued in paragraph 5.73 of their respondents’ brief as follows:
“we submit that it is trite law that a court of law can award less than what is claimed by the plaintiff.’
See
OMOBORIOWO V. AJASIN (1984) 1 SCNLR PAGE 108 AT 152; AGBI V. OGBE (2005) 8 NWLR PART 926 PAGE 40 AT 122.
We therefore respectfully urged the court to hold that awarding less than the amount claimed by the respondents as plaintiffs in the lower court, as was done by the lower court cannot therefore be the basis of the Appellant’s complain under this issue. The award of the said sum of Five Billion Naira only special damages was not arbitrary”. Same is borne out from the evidence before the lower court and the findings made by the court based thereon”.
f. After arguing in the main appeal that “The award of the said sum of Five Billion Naira only as special damages wag not arbitrary” the cross-appellant/applicants now want to amend their cross-appeal accusing the lower court of failing to grant their special damages claim.
28. The grant of this application will put the cross appellants/applicants total claims above what was claimed at the lower court, to wit:
a. The total cross-appellants/applicants claims at the lower court was N10, 000,000,000 (Ten Billion Naira). See page 159 of the record of appeal.
b. The lower court had already granted the cross-appellants/applicants a total of N5, 502,500,000 (Five Billion, Five Hundred and Two Million, Five Hundred Thousand Naira. The lower court granted (a) 5 Billion Naira (b) Five Hundred Million as general damages and (c) 2.5 Million as cost of the action. See page 183 of the record of appeal.
c. The cross-appellants/applicants have a motion for Mareva Injunction in this matter seeking to secure the judgment sum N5, 502,500,000 (Five Billion, Five Hundred and Two Million, Five Hundred Thousand Naira made in their favor by the lower court.
d. if this amendment is granted, cross-appellants/applicants will be pursuing in the Court of Appeal a claim of N5, 085,375,245 (Five Billion, Eight Five Million, Three Hundred and Seventy Five Thousand, Two hundred and forty five Naira) apart from the N5, 502,500,000 (Five Billion, Five Hundred and Two Million, Five Hundred Thousand Naira) already granted by the lower court.
e. If this application is granted, an obvious regal absurdity will result in that the total claim being pursued in the Court of Appeal by the cross-appellants/applicants will now exceed that total claim of Ten Billion Naira made by the cross- appellants/applicants at the lower court.
f. The refusal of this application is imperative in order to avoid this obvious legal absurdity.”
In his written address learned senior counsel for the respondent submitted that the application should fail and be dismissed except the amendment to prefix the word “Cross” to the word appellant. He argued that the proposed amendment would introduce a substantially different case from the case originally made and issue joined therein. He added that it would result in absurd legal consequences and that the respondent would be overreached by it.
Learned senior counsel urged the court to note that the cross appellant had conceded and argued on page 71 of their respondents brief that the award of 5 Billion Naira which they now seek to challenge in the proposed ground of appeal was proper and not arbitrary.
He further submitted that the amendment sought would fundamentally change their originally made case. He relied on ODON v. BARIGHA AMARIGHE (No.1) (2010) 12 NWLR (PT. 1207) 1 at 11, and ADAKA v. IKOT ABASI TRADITIONAL RULERS COUNCIL (1991) 6 NWLR (pt. 198) 480.
He concluded that having regard to all the arguments and submissions made it would not be a proper exercise of judicial discretion to grant the present application. He however urged the court to grant the amendment adding “Cross” to the word appellant.”
The applicant reacted by filing a 8 paragraph Reply to appellants counter-affidavit. He also filed a reply address on points of law.
Learned counsel for the applicants submitted the Respondent had failed to show that it would suffer any disadvantage or inconvenience that costs could not assuage. He relied an ADEKEYE V. OLUGBADE (1987) 2 NSCC 865 at 870; IBE V. ONUORAH (1998) 7 NWLR (PT. 558) page 383 at 391.
He submitted further that even if there was conflict between the argument in the respondent brief and the proposed ground of appeal, it should not be used as a ground to deny the applicants the amendments they sought for. He contended, relying on SAIKI V. SIMON & ORS (2040) LP ELR-CA/B/EPT/152/2008 delivered on 28/5/2010, that the issue of the said additional ground of appeal sought to, be introduced went beyond mere application for amendment as same was an exercise of the applicants’ constitutional right of appeal or cross-appeal against any portion of the judgment of the lower court that they were not satisfied with.
He further posited that amendments could be made after filing of brief and even when an objection had already been raised in respect of the issue sought to be amended. He relied on TSOKWA MARKETING CO. V. B. O. N LTD. (2002) 11 NWLR (PT. 777) 163.
Learned senior counsel for the respondent later forwarded to this court an additional authority on 22n/2/2012. It is the decision of the Court of Appeal in LASTMA V. EZEZOOBO NWLR (PT. 1286) page 46.
I have carefully considered the submission of learned counsel on both sides.
The principles governing amendment of processes in court are clear and have been well set out in the various written addresses of learned counsel. Courts are to decide the rights of parties and not to punish them for their mistake. An amendment which is not fraudulent or intended to overreach outsmart or cheat will be allowed if it will not cause injustice to the other party. See AMADI v. APLIN & CO. LTD (1972) 1 ALL NLR 260; OGUNTIMEHIN v. GUBERE (1964) 1 ALL NLR 176; UBN PLC V. DAFIAGA (2000) 1 NWLR (pt. 640) 175 ALSTHOM S.A. V. SARAKI (2000) 14 NWLR (PT. 687) 413.
I shall view this application in the above light.
The appellant/respondent filed an appeal against the judgment of the court below on 7/8/2009 and a second notice of appeal on 27/10/2009. By grounds 9-12 of the Notice of appeal filed on 27/10/2009 the appellant attacked the judgment of the lower court as follows.
“ix. The learned trial judge erred in raw in awarding to the plaintiffs N5, 000,000,000.00 (Five Billion Naira) as special damages.
Particulars of Error
(a) Special damages must be granted in specie. It must be specific and determinable by mathematical calculation.
(b) The plaintiffs made no claim for N5, 000,000,000.00 (Five Billion Naira) as special damages and the summation of the plaintiffs’ special damages claims did not amount to N5, 000,000,000.00 (Five Billion Naira) awarded by the learned trial judge as special damages.
(c) The award N5, 000,000,000.00 (Five Billion Naira) as special damages to the plaintiffs is bad in law and cannot be sustained.
x. The learned trial judge erred in law in awarding to the plaintiffs N37, 000,000.00 (Thirty Seven Million Naira) for ecological degradation.
Particulars of Error
(a) Having compensated the plaintiffs for disturbances and injurious affections for a period of 20 years over the 37 hectres of land, the additional award of N37, 000,000.00 (Thirty Seven Million Naira) as ecological degradation for the same period of 20 years over the same 37 hectres of land amounts to double compensation.
(b) There is neither evidence nor basis for the award for N37, 000,000.00 (Thirty seven Million Naira) as ecological degradation.
xi. The learned trial judge erred in law in making the award for health hazard.
Particulars of Error
(a) The plaintiffs neither gave the particulars nor evidence of any health hazard.
(b) The valuation report (Exhibit D) did not contain any evidence of hearth hazard to the plaintiffs. It is only a valuation report.
(c) The learned trial judge was wrong in making the award for hearth hazard which the plaintiff did not prove.
xii. The learned trial judge erred in law when he awarded to the plaintiff/respondents against the defendant/appellant the sum of N5, 000,000,000.00 Million (Five Billion Naira) as general damages.
Particulars of Error
(a) The plaintiff/respondents having been fully compensated by the special damages claims already awarded, the learned trial judge awarded general damages only as bonus award. The plaintiffs were thus compensated double.
(b) The plaintiffs/respondents led no evidence to show what it suffered as general damages. Liability in general damages must be proved
(c) “Liability in general damages” is different from “the quantum in monetary term of general damages.”
Parties subsequently exchanged briefs. The appellant in its brief of argument on 24/11/2009, the appellant formulated issues out of which 3 are questioning the award of special damages.
The respondents tiled their brief on 28/12/2009 and on page 76 of the brief submitted that the award of Five Billion Naira only as damages was “proper and good in law.”
In May 2010 the respondent brought a motion on notice for extension of time to file cross-appeal and to deem it as properly filed. The said motion was granted.
Ground 1 of the ground of cross-appeal states (excluding particulars)
The lower court erred in law when the court awarded to the Appellants N85, 375, 245.00 less then the amount claimed as special damages. Particulars excluded).
In their brief of argument the cross-appellants formulated and argued two issues, one of which was; whether in the circumstances of this case the lower court ought to have awarded in favour of the respondent/cross-appellants the entire sum claimed as special damages by the Respondents/cross-appellants?
The cross-respondent reacted by filing cross-respondent’s brief which was deemed filed on 1/2/2012.
In the brief settled by Chief R. Akinjide SAN for the cross-respondent two issues were formulated for determination one of which is: Having regard to the actual order in the judgment of the lower court is the plaintiff/cross appellant’s appeal against the alleged failure of the lower court to award them the sum of N85,375,245 sustainable in law? Learned senior proceeded further to argue that the lower court did not award special damages and so the contention was an assumption.
Subsequently, the cross-appellants after having been served with the cross-respondent’s brief filed this application seeking to amend the Notice of cross-appeal and the brief of argument. In doing this the applicants are seeking to now attack the award they described as proper and good in law in their respondents brief and to perfect their briefs to rectify the “errors”, raised in the cross-respondent’s brief.
I am convinced that this is designed to outsmart and overreach the cross-respondent. This cannot be allowed.”
However, I am not unmindful of the fact that the respondent does not the application to add the word “cross” before the word “Appeal in the title of the Notice of Appeal and in all portions of the Notice of Appeal filed by the Respondent/Cross-Appellant where the word “Appellant” appears.
I shall therefore grant this aspect of the application.
This application succeeds in part. It is hereby ordered that the word “Cross” be added before the word “Appeal” in the Notice of Appeal wherever the Appellant appears therein and the Notice of Appeal of the cross-appellant shall be so amended.
The application to (a) amend the Notice of Appeal filed by the Cross-Appellants by adding additional ground of appeal to replace Ground of Appeal No. 1 therein’ (b) amend paragraph 4(2) of the said Notice of Appeal and (c) amend the cross-appellants brief is designed to overreach the respondent and therefore is disallowed.
In conclusion the application of the applicant praying for an order of Mareva Injunction or alternatively stay of execution of the judgment of the lower court fails and it is accordingly dismissed.
Secondly the application of the cross/appellants/applicants to amend the Notice of Appeal and Brief of Argument succeeds in part as held earlier in this ruling.
Parties are to bear their respective costs.
M. DATTIJO MUHAMMAD,J.C.A: My learned brother Awotoye JCA has obliged me the draft of the lead ruling on the two applications filed and moved by the respondent/ cross-appellant.
On perusal, I entirely agree with his lordship’s reasonings and conclusions on which basis I do equally find the two applications unmeritorious. I dismiss both and abide by the consequential order, made in the lead ruling.”
PAUL ADAMU GALINJE, J.C.A: I have had the privilege reading in drat the ruling just delivered by my brother Awotoye JCA and I agree with the reasoning and conclusion arrived at in the motions filed by the appellant and the cross appellants respectively.
Appearances
Chief Richard Akinjide with Prince G. Akitoge, Kenneth Obisike, Ihuoma Ahanonu (Miss) and Y. Boufini (Miss)For Appellant
AND
K. Wodu with G.P. IkpaeFor Respondent
