TECHNIP v. AIC LIMITED & ORS (2015)

TECHNIP v. AIC LIMITED & ORS

(2015)LCN/7974(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 22nd day of July, 2015

CA/L/649/2011

RATIO

PRACTICE AND PROCEDURE: HEARING NOTICE; THE EFFECT OF NON-SERVICE OF HEARING NOTICE TO A PARTY THAT OUGHT TO BE SERVED ONE THE THE FAILURE TO DO SO MAKES HIM ABSENT IN COURT

Now, on the issue of non-service of hearing notice on other processes on the 2nd and 3rd Respondents, it is a settled law that where a party ought to be issued with a hearing notice but none was so done to the effect that such failure to serve makes him absent in Court he has, to all intents and purposes, been effectively denied justice which borders on fair hearing and a judgment, ruling or decision given against him will be rendered null and void. See OKAFOR VS A.G. ANAMBRA STATE (1991) 6 NWLR (PT 33) 104. Any failure or neglect to serve hearing notice on a party is an infringement of his right to an opportunity to be heard in his defence. O.O. OBU VS ARCHIBONG (2009) LPELR (8897) (CA); OGUNDOYIN VS ADEYEMI (2001) 13 NWLR (PT 730) 403. In S.B.N. PLC VS CROWN STAR CO. LTD. (2003) 6 NWLR (PT 815) 1 AT 16, this Court held that:-
“It is a well settled law and practice that a Court of law must not give judgment against a person who has not had the opportunity to defend the suit in the sense that hearing notice which will bring to his notice the date, time and place of the trial has not been served on him. It would amount to a grave error on the part of the judex to proceed to enter judgment or make an order against a party who is shown not to have been given an opportunity to appear in Court.” See also SKENCONSULT VS UKEY (1981) 1 SC. 6. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

PRACTICE AND PROCEDURE; HEARING NOTICE; WHETHER IT IS THE PARTY THAT WAS NOT SERVED WITH THE HEARING NOTICE THAT CAN APPLY TO SET ASIDE WHATEVER ORDER THAT WAS MADE AGAINST HIM EX DEBITO JUSTITIAE AND THAT THE PROCEEDINGS IS A NULLITY

The position of the law is quite clear that it is the party that was not served with the hearing notice that can apply to set aside whatever order that was made against him ex debito Justitiae and that the proceedings is a nullity. See INEC VS APP (2014) LPELR (22804) CA., TENO ENGINEERING LTD VS ADISA (2005) 10 NWLR (PT 933) 346.
In CHIME VS CHIME (2001) LPELR-849 (SC), (2001) 3 NWLR (PT 701) 527 also cited by the Appellant’s counsel, the Supreme Court per Wali JSC while affirming the stance of this Court on this principle of law noted at page 542-543 of the NWLR that:-
“It is not in dispute that neither 1st Respondent nor the 3rd defendant complained against non service of the Court Processes referred to above or any other Order made. It does not therefore lie in the mouth of the Appellants to complain on their behalf. It is abundantly clear from the printed record that neither the 3rd defendant nor the 1st and 2nd Respondents complained against non service of any court process on him, in fact throughout the proceedings in this case the 3rd defendant did not put up any appearance.” per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

APPEAL: RULE OF COURT; WHETHER AN APPEAL WILL FAIL ON THE GROUND OF FAILURE TO ANNEX A COPY OF THE ORDER OF THIS COURT TO THE NOTICE OF APPEAL WHILE FILING IT

On the issue of the Appellant’s failure to annex the Enrolled Order of this Court granting extension of time for leave to appeal, there is no doubt that Order 7 Rule 10(2) of the Court of Appeal Rules 2007 provides that where such an Order for Enlargement of time within which to appeal is granted, a copy of the said Order shall be annexed to the Notice of Appeal. As much as it is of utmost necessity to observe and comply with the Rules of Court, it is however not every breach or failure to comply with any part of the Rules that will be fatal to a party’s case else our jurisprudence will slide back into the dark era of technicalities and this will not augur well for a smooth, efficient and proactive system of administration of justice. In CHIME VS CHIME (supra) His lordship, Iguh JSC made it very clear that:-
“It is well settled law that in appropriate cases our courts now appear to be deliberately shifting away from the narrow technical approach to justice which characterised some earlier decisions of courts on various matters. Instead it now pursues the course of substantial justice.” per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

APPEAL: ORDER OF SUBROGATION; WHETHER THE ORDER OF SUBROGATION WAS PROPER HAVING REGARD TO ORDER IV RULE 9(1)(A) OF THE JUDGEMENT ENFORCEMENT RULES

The point of contention here is whether the Order of Subrogation made against the Appellant and based on an exparte application by the 1st Respondent was proper having regard to Order IV Rule 9(1)(a) of the Judgment Enforcement Rules.
I am inclined to reproduce in extenso, the provision of Order IV Rules 9(1) of the Judgment (Enforcement) Rules. It reads:-
9. EXECUTION BY LEAVE IN SPECIAL CASE.
(1) in the following case, namely-:
(a) where any change has taken place by death or otherwise in the parties entitled or liable to execution;
(b) where a husband is entitled or liable to execution upon a judgment for or against his wife;
(c) where a party is entitled to execution upon a judgment of assets in future;
(d) where a party is entitled to execution against any of the shareholders of a Joint Stock Company upon a judgment recorded against such company, or against a public officer or person representing such company, the party alleging himself to be entitled to execution may apply to the court for leave to issue process accordingly. The Court may, if satisfied that the party so applying is entitled to execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in any action may be tried. And in either case, the Court may impose such terms as to costs and otherwise as shall be just.
My humble understanding or appreciation of the above set out provision is that in any of the situations listed in Sub rule (1) (a) (b) (c) and (d), a judgment creditor may apply to the Court for leave to issue process necessary for the recovery of the judgment debt and (as pertaining to sub rule (1)(a)) from the subrogee of the original judgment debtor. Where, upon such application for leave, the Court is satisfied that the judgment creditor is entitled to execution, it will then proceed to make an Order granting leave for the relevant process to be issued. Alternatively, the Court may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any action may be tried.
It seems to me that from a literal and straight forward interpretation of the provision of Order IV Rule 9(1)(a), that cognizance is taken of the fact that controversy may arise over any subrogation upon death or otherwise of the judgment debtor given that there must be certainty or correctness of the party sought to be made a subrogee. It follows therefore that to all intents and purpose, a judgment creditor who seeks to rely on the provisions of Order IV Rule 9(1)(a) by applying for leave to issue process shall put the intended subrogating party on notice. It is then the response of the said subrogating party to the said application that will determine whether the Court will grant the leave or order that any issue or issues in controversy as to the rights of the parties should be set down for trial in any of the methods for trying actions as may be ordered by the Court.
My stance in this regard is hinged on the premise that interpreting the said Order to mean that application should be by way of motion exparte will work great injustice on the subrogating party and constitutes an apparent breach of fair hearing. Any person or organization who is not adjudged as a judgment debtor by any judgment of the Court but suddenly finds himself being held responsible for a debt he knew nothing about must be given the ample opportunity of being made aware of the execution process sought to be initiated against him as a substitute to a judgment debtor and this can only be done if he is put on notice via the application for leave filed by the judgment debtor. This to my mind is the real intent and purport of Order IV Rule 9(1)(a) of the Judgment (Enforcement) Rules, which provision must not be mixed up with or confused with Section 83 of the Sheriffs and Civil Process Act which specifically provided for the use of Exparte application for garnishee proceedings, alluded to by the Lower Court in its ruling. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

CONTRACT: PRIVITY OF CONTRACT; WHETHER CONTRACT CAN BE ENFORCED AGAINST A PERSON WHO IS NOT A PARTY TO THAT CONTRACT

The concept of Privity of Contract was made very clear in the case of MAKWE VS NWUKOR cited supra by the parties. The Supreme Court therein held thus:-
“It is trite law that as a general rule a contract affects only the parties there to and cannot be enforced by or against a person who is not a party to it. In other words, only the parties to a contract can sue or be sued on the contract and, generally, a stranger to a contract can neither sue nor be sued on the contract even if the contract is made for his benefit and purports to give him the right to sue or to give him the right to sue or make him liable upon it. In the same vein, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or to be sued upon the contract.”
See also NEGBENEBOR VS NEGBENEBOR (1971) 1 ALL NLR 210; IKPEAZU VS ACB LTD (1965) 1 NMLR 374. In BORISHADE VS NATIONAL BANK OF NIGERIA LTD (2005) LPELR (11968) CA, it was held that the “Doctrine of privity of Contract as a general rule is that a contract cannot confer or impose obligations on strangers to it. And as a general rule a contract affects only the parties thereto and cannot be enforced by or against a person who is not a party thereto, even if the contract was made for his benefit and purports to give him the right to sue or to make him liable upon it.”
See also DUNLOP VS SELFRIDGE (1915) AC 847; 1ST CONCEPT ASSOCIATES (NIG) LTD VS TROPIC FINANCE INVESTMENT CO. LTD (2014) LPELR (22644) CA at page 36; UTC (NIG.) PLC VS M.I.A LTD (2003) 13 NWLR (PT 837) 291. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

TECHNIP Appellant(s)

AND

1. AIC LIMITED
2. MANNESMANN ANLAGENBAU AG
3. MANNESMANN DEMAG AG
4. TOTAL UPSTREAM NIGERIA LIMITED
5. STAR DEEPWATER PETROLEUM LIMITED
6. TEXACO NIGERIA OUTER SHELF INC
7. PETROLEO BRASILEIRO NIGERIA LIMITED
8. STATOIL NIGERIA LIMITED
9. FAMFA OIL LIMITED Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This appeal against a Garnishee Order Absolute has its origin from a judgment of the Lagos State High Court delivered by C.O. Segun CJ. on the 25th January, 2000 wherein he found in favour of the claimant (now 1st Respondent) as follows:-
“In the final result and for all the reasons above and consequent upon the failure of the 1st defendant to pay any commission to the plaintiff as proved in the evidence, I will give judgment in favour of the Plaintiff against the 1st and 2nd defendants jointly and severally as follows as contained in schedule B of their statement of claim:
(1) $1,220,185,40 (US Dollars)
(2) ?547,185.00 (Sterling)
(3) DM 22,270,922.00 (Dutch marks)
(4) N2,764,785,40 (Naira)
(5) $750,000.00 being 5% commission of contract “D”
The 1st and 2nd Defendants shall pay interest on the above sums at the rate of 13% per annum from 10th April, 1987 until payment thereof of all the sums ……..”

The 1st Respondent in this Appeal (AIC LIMITED) was the plaintiff in the said suit while the 2nd Respondent MANNESMANN ANLAGENBAU-AG and NNPC were the 1st and 2nd Defendants respectively.

Sometime in 2005, the 1st Respondent filed a motion Exparte dated 25-8-2005 praying to Lower Court as follows:-
“1. An Order granting leave to enforce judgment dated 25th January 2000 in this case.
2. An Order granting leave to issue the enforcement process (Order) against Mannesmann Anlangebau A.G, Mannesmann Demag A.G and TECHNIP of France in the said Judgment of 25th January, 2000.
3. An Order of garnishee of this Court against Total Upstream Nigeria Limited in the sums of:
(1) $1,220,185,40 (US Dollars)
(2) ?547,185.00 (Sterling)
(3) DM 22,270,922.00 (Dutch marks)
(4) N2,764,785.40 (Naira)
(5) $750,000.00
or the equivalent of which sums in Naira are as follows:
(1) N1,545,256,484.70
(2) N1,228,273,771.42
(3) N14,922,828,342.55
(4) N26,349,753.61
(5) N949,808,417.25
================
Total N18,672,516,769.53
================
4. An Order of garnishee of this Court against (1) Star Deep Water Petroleum Limited, (an affiliate of the Chevron Corporation) also (2) Texaco Nigeria Outer Shelf Inc. (an affiliate of Chevron Corporation) (3) Petroleo Brasileiro Nigeria Limited (4) Statoil Nigeria Limited and (5) Famfa Oil Limited in the sums stated in paragraph 3 supra.
AND
5. For such further order or other order or orders as this Honourable Court may deem fit to make in the circumstances.”

The said motion exparte was supported by a 22 paragraph affidavit sworn to by one Waheed Kasali. Numerous documents were attached to the said affidavit as Exhibits. A written address in support of the said application was also filed on the same 25-8-2005 together with an affidavit of urgency.

At the hearing of the said motion exparte on 1-9-2005, the learned trial Judge held at page 165 of the Record as follows:-
COURT: Upon reading the affidavit of urgency deposed to in this matter and the affidavit in support of the application for garnishee Order Nisi together with all the Exhibits attached to, learned Counsel to the Judgment Creditor. I am of the view that the parties named subrogating parties herein are persons against whom the right to any relief is alleged to exist.
They are persons who may bear eventual liability either in whole or in part in this action.
Accordingly pursuant to Order 13 of the High Court of Lagos State Civil Procedure Rules 2004 this Court Suo motu orders and directs that the subrogating parties; namely Mannsmann. Demag AG of Wolfgang Reuter pats 47053 Duisbury Germany and Technip of France, 6-8 all de Arche Fauborg de Arche ZACDANTO 92400 Cuurbevoie Frunom OR Tour Teching Da Defence 170 Placo. Honri Reonuult 929273 Puris La Dofonoe, Codex France are hereby joined as Respondents No.1 and No.2 respectively.

In a second ruling delivered at the same proceedings on 1-9-2005, the learned trial Judge ordered inter alia as follows:-
“In the final Result, a garnishee Order Nisi is hereby made for the Garnishees to appear before this court to show cause why they should not pay to the Judgment creditor the judgment debt owed by the judgment debtor or so much thereof as may be sufficient to satisfy the judgment debt. The garnishee order shall be served on all the garnishees, Arguments of (sic) the Application for garnishee Order Absolute is adjourned till Tuesday 4th October 2005.”

Upon being served with the said Order Nisi, the Appellant herein (Technip) who was by the said Order of the Lower Court joined in the enforcement of the judgment proceedings as a subrogee, reacted by filing a motion on notice dated 7-10-2005 wherein the following orders were sought from the Lower Court:-
(1) “An Order extending time within which the Applicant may apply to discharge the exparte Orders granted by this Honourable Court on 1st September 2005 granting leave to enforce the judgment of this court against Technip of France and a Garnishee Order Nisi against the Garnishees herein
(2) An Order setting aside the exparte orders granting leave to enforce the judgment of this court against Technip of France and the Garnishee Order Nisi against the Garnishees herein made on the 1st September 2005.
(3) An Order striking out the name of Technip of France from the Suit herein.”

The grounds for the Application are:-
(1) That no notice of the Application seeking leave to enforce the judgment against the Applicant was given to the Applicant before the order was granted on 1st September 2005.
(2) Misrepresentation and Non-Disclosure of material facts.
(3) That no material change has taken place in the status of the judgment debtor.
(4) That this Honourable Court has no Jurisdiction over the Applicant party in respect of the present suit there being no nexus between the said Applicant as 2nd subrogating party and the judgment Debtor or creditor.
(5) The Garnishee Order Nisi was irregularly made.”

An affidavit of 17 paragraphs in support of the said application was deposed to by one Sola Tokunbo. Numerous documents marked Exhibit ‘SO1’ to ‘SO8’ were also attached to the affidavit.

The 1st Respondent opposed the application by filing a counter affidavit of 5 paragraphs deposed to by Waheed Kasali.

The parties also filed written addresses which they adopted at the hearing of the application.

In a Ruling delivered on 4-11-2005, the learned trial Judge refused the application to set aside the Order Nisi and held inter alia thus:-
“From the deposition above, it is obvious that the second group of Garnishees are debtors to Technip or Technip France. It is therefore my judgment that the debts that has become due to the contractor is attachable. Accordingly the Garnishee Order Nisi is hereby made Absolute. In the result, it is hereby ordered that execution shall be issued to levy the amount due from the first and second Garnishees or from any of them or so much thereof as may be sufficient to satisfy the judgment of this Court delivered on Tuesday, 25th January 2000 as calculated in the table/document attached to the original affidavit in support of the motion for Garnishee Order Nisi which table or document is marked Exhibit WK 2-26. Cost assessed at N20,000 is awarded in favour of the judgment creditor.”

The Appellant, being dissatisfied with the said Ruling, filed a Notice of Appeal dated and filed on 10-6-2011 and contains 13 grounds of Appeal after obtaining leave of this Court to do so. The Appellant’s brief of argument is dated and filed on 21-2-2014. The Appellant’s reply to the 1st Respondent’s brief of argument is dated and filed on 3-11-14 but deemed properly filed on 12-2-2015.

The 1st Respondent’s brief of argument is dated and filed on 31-3-2014 and has Notice of Preliminary Objection as well as arguments in support embedded in pages 7 to 11 of the said brief of argument. There is also a list of additional authorities. The other Respondents did not file any brief of argument.

At the hearing of the appeal on the 29-4-2015, the 1st Respondent moved the Notice of Preliminary Objection and referred to the arguments in support before urging the Court to strike out the Notice of Appeal. The Appellant also replied with reference to the arguments in the Appellant’s reply brief particularly at pages 6 to 17.

The parties subsequently adopted and relied on their respective briefs of argument.

I will now deal with the Preliminary Objection and resolve same before delving into the main appeal. The Notice of Preliminary Objection was filed on 15-3-2013 and it seeks the following orders:-
(1) An order striking out the Appellant/Respondent’s Notice of Appeal dated 10th June 2011 against the Ruling of Ade-Alabi CJ of the High Court of Lagos State, given on 4th November 2005 in Suit No. LD/264/1988 for being incompetent, including all other processes filed in furtherance of the instant appeal pursuant to the said Notice of Appeal.
(2) An order striking out the Record of Appeal compiled and transmitted by the Appellant/Respondent in respect of this Appeal No. CA/L/649/2011 for failure to contain fundamental material processes.
(3) An order setting aside the Ruling and enrolled order of this Honourable Court made on 7th June 2011, in miscellaneous proceeding under CA/L/1211M/2010 (which gave rise to the instant Appeal) the condition precedent to resting jurisdiction on the Honourable court to grant same having not been fulfilled.

The prayers are hinged on 16 grounds and the application is supported by a 6 paragraph affidavit and two documents marked as Exhibits AIC1 and AIC2 were attached therewith. The Appellants on opposing the said application filed a counter affidavit.

On prayer 1, the argument of learned Senior Counsel for the 1st Respondent is that in the Appellant’s Application for leave to Appeal dated 17-12-2010, there were nine Respondents therein and the 2nd and 3rd Respondents who were based in Germany, outside the jurisdiction of this Court were not served with the requisite hearing notice of the said motion nor were they given enough time to appear and furthermore the name of the original 3rd Respondent has changed and it was not so reflected in the said motion. He added that by Order 2 Rule 3(6) and (8) of the Court of Appeal Rules 2007, leave to serve ought to have been sought and obtained before the motion for leave to appeal was filed and argued. But it was the other way round in the instant case where leave to appeal was obtained and the Notice of Appeal as well as Record of Appeal transmitted before the Appellant sought and obtained leave to serve the said Notice and other processes on the 2nd and 3rd Respondent outside jurisdiction by substituted means. Learned Senior Counsel cited a number of authorities to contend that lack of valid filing and service of originating process is a matter of jurisdiction and affects the competence of the Court to adjudicate. He then urged this Court to set aside its ruling for lack of valid service.

Secondly, it was argued that even if the order granting leave to the Appeal was valid, the Notice of Appeal is incompetent for failure to annex the enrolled order for leave to Appeal to it.

On the second prayer, it was submitted that the Appellant compiled and transmitted an incomplete record as it does not contain relevant documents filed in connection with the appeal such as the motion on notice for leave to Appeal and the order granting the said leave as per Order 8 Rule 7 of the Rules of this Court. He added that a valid record of appeal must contain every material fact, evidence or document in the proceedings at the trial and relevant for the determination of the issues in controversy between the parties at the appellate court vide OLORUNLEYIMI VS AKHAGBE (2010) 8 NWLR (PT 1195) 48 and AULT & WIBORG (NIG) LTD VS NIBEL INDUSTRIES LTD (2010) 11 NWLR (PT 1220) 486; N.I.W.A. VS SPDC (NIG) LTD (2011) 6 NWLR (PT 1244) 618.

He then urged this Court to strike out the entire appeal because of an incompetent Record of Appeal.

Replying on behalf of the Appellant, it’s learned Senior Counsel referred to the submissions as made by the 1st Respondent’s Counsel to draw the attention of this Court to the fact that the first Respondent made no complaint about the service of the motion for leave on it but centered it’s complaint on non-service on the 2nd and 3rd Respondent. He added that the 1st Respondent does not claim to be or represent the 2nd and 3rd Respondents in this appeal neither do they have a common ground on the subject hereof. He referred to paragraphs 5(a) and (b) of the Appellant’s counter affidavit to contend that the facts are very clear and undeniable that the 1st Respondent cannot possibly, under any circumstance, be a beneficiary of the purportedly defective service on the 2nd and 3rd Respondents. He cited the Supreme Court cases of CHIME VS CHIME (2001) 3 NWLR (PT 701) 827 and UMEANADU VS A.G. ANAMBRA STATE (2008) 9 NWLR (PT 1091) 175 AT 188. He submitted that the Appeal can only be deemed incompetent at the instance of and as it relates to the 1st Respondent who incidentally was validly served with the processes. He therefore has no cause to complain on behalf of the 2nd and 3rd Respondents.

On the issue of failure to annex the Enrolled Order for Enlargement of time for Leave to Appeal, learned senior counsel referred to Order 19 Rule 5(1) of the Court of Appeal Rules 2007 to contend that time is of the essence in complaining about the purported non-compliance with the Rules. He noted that the Notice of Appeal complained of was filed on 10-6-2011 while this objection was filed on 15-4-2013 and besides, the 1st Respondent have taken several steps on the proceedings.

It was further submitted that the same provisions of Order 19 Rule 5(1) applies to the 1st Respondent’s complaint about incomplete record pursuant to Order 8 Rule 7 of the Court of Appeal Rules, in which case the 1st Respondent is also stopped and shut out from complaining because it was not done within a reasonable time and has taken first steps in the proceedings after becoming aware of the irregularity. He added that the Registry of the Lower Court invited the parties for settlement of records during which the 1st Respondent ought to have raised any complaint immediately but never did so.

He further referred to Order 19 Rule 3(2) to say that this Court could apply same in this case as it relates to non-compliance with the Rules and what the Court could do to remediate any such irregularity.

Now, on the issue of non-service of hearing notice on other processes on the 2nd and 3rd Respondents, it is a settled law that where a party ought to be issued with a hearing notice but none was so done to the effect that such failure to serve makes him absent in Court he has, to all intents and purposes, been effectively denied justice which borders on fair hearing and a judgment, ruling or decision given against him will be rendered null and void. See OKAFOR VS A.G. ANAMBRA STATE (1991) 6 NWLR (PT 33) 104. Any failure or neglect to serve hearing notice on a party is an infringement of his right to an opportunity to be heard in his defence. O.O. OBU VS ARCHIBONG (2009) LPELR (8897) (CA); OGUNDOYIN VS ADEYEMI (2001) 13 NWLR (PT 730) 403. In S.B.N. PLC VS CROWN STAR CO. LTD. (2003) 6 NWLR (PT 815) 1 AT 16, this Court held that:-
“It is a well settled law and practice that a Court of law must not give judgment against a person who has not had the opportunity to defend the suit in the sense that hearing notice which will bring to his notice the date, time and place of the trial has not been served on him. It would amount to a grave error on the part of the judex to proceed to enter judgment or make an order against a party who is shown not to have been given an opportunity to appear in Court.”
See also SKENCONSULT VS UKEY (1981) 1 SC. 6. However, in the instant case, the party complaining is the 1st Respondent who is on the opposite side of the divide in the dispute. The 2nd and 3rd Respondent in question who incidentally are on the side of the Appellant have not in anyway complained about any non-receipt of hearing notice or that they have been denied any opportunity of being heard in their defence before any adverse order was made against them. It therefore sounds strange and unusual to my humble self that the 1st Respondent has opted to make it an issue without any proof or evidence that it is acting on behalf of the said 2nd and 3rd Respondents.

I believe that the above set out view of the Supreme Court puts paid to this issue in the sense that it does not lie with the 1st Respondent to complain of non-service of any process on the 2nd and 3rd Respondents.

In the instant case, it will be absurd to strike out this appeal at this stage on the ground of failure to annex a copy of the Order of this Court to the Notice of Appeal while filing it. This indeed is an appropriate case where it is germane to shift away from narrow technical approach to justice. I also find support in Order 20 Rule 3 of the Court of Appeal Rules 2011 which provides for waiver of non-compliance with the Rules where the Court, in the interest of justice, considers it proper to do so. Accordingly, it is so ordered that the requirement of Order 7 Rule 10(2) of the Rules of this Court for the annexure of a copy of the Enrolled Order to the Notice of Appeal be hereby waived for the Appellant in the interest of Justice.

The 1st Respondent in the said Preliminary Objection had also complained about the fact that the record of Appeal did not contain fundamental material processes.

Ironically, it is on record as shown on at pages 833 to 835 of Vol. 2 of the Record of Appeal that all the parties in the suit were invited by the Registrar of the Lower Court for settlement of Records and the 1st Respondent through his counsel was present on the date fixed for the said settlement of Record.

The 1st Respondent’s counsel had also complained about the absence of some material documents such as the Motion on Notice for Leave to Appeal and the Order granting the said leave. As much as it is necessary to have a complete record of appeal containing all relevant documents and it behoves the Appellant to ensure a compiled record, Order 8 Rule 6 of the Rules of this Court however gives the Respondent the right to complete and transmit additional records where he considers that there are additional records which may be necessary in disposing the appeal. The 1st Respondent totally failed to do so in compliance with the Rules but took part conveniently in relying on the said record to file its processes including brief of argument, only to now complain that the Appellant failed to compile and transmit complete record.

While noting the fact that the parties and the Court are bound by the Record of Appeal compiled and transmitted from Lower Court, it should be recognized that apart from the original Notice of Appeal with the enrolled order (where leave is granted) which is required to be filed in the Lower Court for purposes of compilation of record; no other process filed at the Court of Appeal is required to be transmitted back to the Lower Court. It is rather the other way round. Thus, except for the enrolled order which is to be annexed to the Notice of Appeal (but earlier waived by this Court), there seems to be no other material document proven to be lacking in the Record of Appeal. But even at that, having noted earlier that the 1st Respondent had relied on the same records to do all that is required in this appeal since it was filed in 2011, it seems to me that the 1st Respondent is caught by Order 20 Rules 5 of the Court of Appeal 2011 which requires that any application to strike out or set aside for non-compliance with the Rules should be made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

In the final result I hold therefore that the Preliminary Objection lacks merit and it is accordingly dismissed.

On the main appeal, the Appellant formulated four issues for determination from the 13 grounds of appeal as follows:-
(1) Was the trial Judge justified in joining the Appellant as a subrogating party for the execution of the judgment Debt in this suit based on the 1st Respondent’s subrogation Exparte motion?
(2) Without prejudice to issue 1 hereof, was the trial Judge justified however, on the merits in joining the Appellant as a subrogating party for the execution of the judgment in this Suit?
(3) If the answers to issues 1 and 2 are both or either of them is in the negative and in favour of the Appellant, was there any basis for the Garnishee Order Absolute against, inter alia, the Appellant and/or 2nd-9th Respondents?
(4) Without prejudice to the issues 1, 2 and 3 hereof, is the Garnishee Amount as represented in the Garnishee Order Absolute Ruling certain and capable of execution howsoever, and if it is not, what order should this Honourable Court make?

For the 1st Respondent’s brief of Argument, four issues were also raised to wit:-
(1) Whether joinder of the Appellant as 2nd subrogating party to judgment enforcement and Garnishee proceedings at the Lower Court by exparte motion was proper (grounds 1, 2 & 4)
(2) Whether the trial court rightly dismissed Appellant’s prayer to be struck out as a party to the judgment enforcement and Garnishee proceedings on the evidence before the Court. (Grounds 3, 5, 8, 10 & 11).
(3) Whether the Garnishee Order Absolute made by the trial court against the garnishees is open to objection by the Appellant or at all. (Grounds 6, 7, 9 & 12).
(4) Whether the Garnishee Order Absolute as clarified by supplementary order of the trial court on payment of only simple interest on the judgment debt as adjudged in the substantive suit by Segun J. (as he then was) is ambiguous as to be unenforceable. (Ground 13).

The two sets of issues as formulated by the parties are not different except for the use, style and method of couching. Given the oneness of the said issues, I will adopt those as formulated in the Appellants brief in the resolution of this Appeal.

ISSUE ONE:
Dwelling on this issue, learned Senior Counsel for the Appellant submitted that the Appellants stance was that Order IV Rule 9(1)(a) of the Judgments Enforcement Rules which mandates the subrogation of a third party in the stead of a judgment debtor, does not stipulate the making of the application exparte. But even if it so allows, the Subrogation Order of the Lower Court made pursuant to the 1st Respondent’s exparte application was final, definitive and absolute and thereby offends the principle of fair hearing. He added that it was wrong for the learned trial Judge to have relied on Order 13 of the High Court of Lagos State (Civil Procedure) Rules 2004 to suo motu order and direct that the subrogating parties be joined as Respondents when, in the first place, the said Order was not made suo motu but on the application of the 1st Respondent.

It was further submitted that the said Order 13 did not provide for the joinder of a party by a motion exparte which certainly would have been against the principle of the Constitution and judicial norm. He cited the case of ACB PLC VS NWAIGWE & 9 Ors (2001) 1 NWLR (PT 694) 305 where this Court refused an application for joinder because it was sought exparte.

It was further emphasised that the 1st Respondent’s exparte motion as it relates to the subrogation of the Appellant were absolute, definitive and final and gave no room for the Appellant to react to it given that the 1st Respondent did not follow it up with a motion on notice. He cited the case of KOTOYE VS CBN (1989) 1 NWLR (PT 98) 419. Learned Senior Counsel referred to the ruling of the Lower Court to the effect that Section 83 of the Sheriffs and Civil Process Act and Order IV Rule 9(1)(a) of the Judgments (Enforcement) Rules do not mandate filing applications for Garnishee and or Subrogation Orders by way of motion on notice.

After reviewing the finding of the Lower Court thereof, learned counsel submitted that there are errors in the reasonings of the learned trial Judge because having held that the Order of Subrogation was being made pursuant to Order 13 of the High Court of Lagos State (Civil Procedure) Rules, there was no mention whatsoever of Section 83 of the Sheriffs and Civil Process Act or Order IV Rule 9(i)(a) of the Judgment (Enforcement) Rules.

It was further submitted that the learned trial Judge mixed up Garnishee proceedings under Section 83 of the Sheriffs and Civil Process Act with the Subrogation proceedings pursuant to Order iv Rule 9(i)(a) of the Judgment Enforcement Rules when in fact the two are not the same but on parallel lines given that subrogation proceedings are provided solely by Order iv Rules 9(1)(a). Hence the learned trial Judge, in apparent realisation of the difference, drew up two separate enrolled orders: one for Subrogation and the other for the Garnishee Order Absolute.

It was further contended that the Subrogation Order was an absolute order and it did not give room for the Appellants to make submissions on it given that the Learned Trial Judge simply relied on second part of Order IV Rule 9(1)(a) to justify making the order exparte.

This court was then urged to set aside the said Subrogation Order.

Replying on this issue in the 1st Respondent’s brief, learned Senior counsel for the said 1st Respondent submitted that the Lower Court rightly exercised it’s plenitude of powers to join the Appellant as a subrogated Defendant/Judgment debtor in the post judgment proceedings.

He then asserted that judgment enforcement in the trial courts in Nigeria is governed by the Sheriffs and Civil Process Act while the procedural aspect is regulated but not exclusively by the Judgment Enforcement Rules which is a subsidiary legislation under the Act, and added to that is Section 94 of the said Act which empowers Chief Judges of each High Court to make Rules and Regulations for the conduct of judgment enforcement proceedings falling under Parts II, III, IV, V and VI of the Sheriffs and Civil Process Act.

It was then submitted that in the Ruling of the Lower Court refusing to strike out the name of the Appellant, it was reason that the High Court Rules permits the court to join any person who is not already a party to a pending Suit suo motu and it can do so on the exparte application of the Plaintiff to join a person as a Defendant. See (pages 680-681 of the Record).

He added that in the circumstance the recourse by the Lower Court to Order 13 of the High Court Rules is unimpeachable because the Civil Procedure Rules of trial Courts are applicable to judgment enforcement, moreso that the provisions of the Judgment Enforcement Rules did not state the manner in which a new person should be brought to replace a dead or transformed Defendant/judgment debtor. He asserted that the case of ACB PLC VS NWAIGWE is not applicable to the facts of this case and the issue in contention.

It was also submitted that where a former Defendant has died, or transformed into a new entity sought to be added, the first step is to obtain Order of Court to make the new entity a party. It is thereafter that the new entity can be added to the processes and served moreso that in the instant case, the Appellant is a foreign entity and thereafter odd to expect the judgment creditor to put it on notice of it’s being joined before obtaining an Order of Court. In such a situation he says, exparte orders are most suited for it since it does not call for determination of the right of the parties.

It was also argued that the 1st Respondent did not seek to make a new case or press a fresh claim but simply sought to enforce a judgment that had been entered in its favour in which case Order 13 of the High Court Rules is the proper procedure via a motion exparte.

Learned Senior Counsel also submitted that the submission of the Appellant that the Order joining it as a subrogee was final and absolute cannot be correct because an order exparte for joinder which is liable to be reviewed and reversed at the instance of the party joined, but without an appeal cannot be a final order. He cited the case of PROVISIONAL LIQUIDATOR, TAPP INDUSRTY VS TAPP INDUSTRY (1995) 5 NWLR (pt 393) AT 33.

He added that Order IV Rule 9(1)(a) under which the 1st Respondent applied exparte deals with leave to issue execution, therefore all that the 1st Respondent need to satisfy the Lower Court in granting the leave was a provisional proof that the person against whom execution is intended to be levied was a successor to the original debtors liability.

It was then submitted that it is only after leave is obtained and served on the person joined or added or subrogated that further proceedings in the case will require putting the other party on notice. Referring to the case of KOTOYE VS CBN cited Supra by the Appellant, it was contended that the case was in respect of an exparte order for injunction pending the determination of the suit but did not criticize or reverse the order made exparte for failure of service on the other party so the case is not applicable to the instant issue.

It was further argued that the exception is where the original debtor had died in which case it will be necessary to put the Representatives on the notice vide Order II Rule 17 of the Judgment Enforcement Rules. But in this case it is not a question of death but that of corporate transformation without an intermediary like a personal representative.

Learned Counsel for the Appellant, in the reply brief, submitted that the 1st Respondent in justifying the exparte Order of Subrogation, relied on the Ruling of the Lower Court which based on Order 13 of the High Court of Lagos State (Civil Procedure) Rules made the said Order exparte for Subrogation. He added that such argument by the 1st Respondent is entirely flawed and misconceived because the Sheriff and Civil Process Act does not stipulate in any of its Sections that Civil Procedure Rules of the High Courts are applicable to judgment enforcement, therefore Section 94 of the Act was referred to out of con by the 1st Respondent because the said Section simply mandated Chief Judges with the approval of the Governor, to make Rules of the Court in respect of matters specified in the said Section and which Rules are yet to be made by the Chief Judge of Lagos State as even acknowledged by the 1st Respondent in its brief of argument.

On the principle of law that where there is a specific and special provision, it is not necessary for a party or the court to trawl for general provisions on the same subject matter; learned Senior Counsel relied on the case of MARTIN SCHRODER & CO. of Hamburg W. Germany -By their Attorney Ade Ladega Vs MAJOR & CO. (NIG) LTD (1989) 2 NWLR (PT 101) Page 1.

On when an exparte Order is said to be absolute and final, he cited the case of ANIMASHAUN & 2 Ors VS BAKARE & 7 ORS (2010) 16 NWLR (PT 1220) 513 at 536.

He further submitted that nothing in the Order of Subrogation made by the Lower Court suggested that there was any question or issue that was outstanding and remaining for determination with regard to the subrogation of the Appellant in place of the judgment debtor in which case the Order of the Lower Court is final, definite, absolute and conclusive and that is the sole issue in contention under issue I as formulated by the Appellant.

Referring to the case of TAPP INDUSTRIES LTD cited Supra by the 1st Respondent, it was submitted that facts therein are different from the facts and circumstances of this appeal.

In the instant case, the situation is made worse given the nature of the motion exparte filed by the 1st Respondent and upon which the Lower Court made the order joining the Appellant as a subrogating party. In the said motion exparte filed on 28-6-2005, the 1st Respondent prayed for the following order:-
1. an Order granting leave to enforce judgment dated 25th January, 2000 in this case.
2. An Order granting leave to issue the enforcement process (Order) against Mannesmann Anlangebau A.G. Mannesmann Demag A.G. and TECHNIP of France in the said Judgment of 25th January, 2000.
3. An Order of garnishee of this Court against Total Upstream Nigeria Limited in the sums of:
(1) $1,220,185.40 (US Dollars)
(2) ?547,185.00 (Sterling)
(3) DM22,270,922.00 (Dutch Marks)
(4) N2,764,785.40 (Naira)
(5) $750,000.00
or the equivalent of which sums in Naira are as follows:
(1) N1,545,256,484.70
(2) N1,228,273,771.42
(3) N14,922,828,342.55
(4) N26,349,753.61
(5) N949,808,417.25
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Total N18,672,516,769.53
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4. an Order of garnishee of this Court against (1) Star Deep Water Petroleum Limited (an affiliate of the Chevron Corporation) also (2) Texaco Nigeria Outer Shelf Inc. (an affiliate of Chevron Corporation) (3) Petroloe Brasileiro Nigeria Limited and (4) Statoil Nigeria Limited and (5) Famfa Oil Limited in the sums stated in paragraph 3 supra.

From the above set out prayers, it is not in doubt that the 1st Respondent combined the application for leave to enforce judgment against the Appellant with another prayer for an Order of garnishee against the Appellants’ debtor. The said motion exparte was granted by the Lower Court on 1-9-2005 and a Garnishee Order Nisi made the same day without the knowledge of the Appellant who only became aware of its status as a Subrogee after the whole process had virtually been concluded, thus deprived of the opportunity to be heard on whether to accept or challenge it’s imposed status as a subrogating party. This indeed is a clear case of denial of fair hearing given that in garnishee proceedings the judgment debtor is a virtual on-looker while the battle field remains that of the judgment creditor and the Garnishee or Garnishees. PURIFICATION TECHNIQUE NIG LTD VS A. G. LAGOS STATE (2004) 9 NWLR (PT 879) 665.

To apply for leave to join a subrogating party therefore requires putting the intended subrogating party on notice because that is the only seeming opportunity to challenge the application given that after an Order Nisi is made, he loses a firm ground to stand being himself not a Garnishee. Incidentally, in the case of PROVISIONAL LIQUIDATOR OF TAPP IND. LTD VS TAPP IND. LTD Supra relied on by the 1st Respondent, it was held inter alia by – OGUNDARE JSC that the granting of an order exparte is one which should be made where the circumstances of the case do not affect any of the parties adversely. In the instant case, the subrogating order exparte no doubt affected the Appellant adversely given it’s posture that it ought not to be joined as a subrogating party in place of the original judgment debtor which is still existing. The case of ANIMASHAUN V BAKARE Supra cited by the Appellants is apposite here where it was held inter alia at page 541 of the Report that:-
“The Orders made were capable of affecting the rights of the Appellants who were not before the Court and who were not heard before the Order was made. The nature of the Order made by exparte application cannot be sustained.”

In the instant case, the nature of the Order exparte for subrogation granted by the Lower Court pursuant to Order IV Rule 9(1)(a) to the exclusion of the subrogating party cannot definitely be sustained because that is not the intent of the aforementioned provision.

The 1st Respondent also relied on Order 13 of the High Court of Lagos State (Civil Procedure) Rules to insist that it justify the act of the Lower Court in granting the order of subrogation exparte. Moreso that Civil Procedure Rules of Court are applicable to judgment enforcement. He also referred to Section 94 of the Sheriffs and Civil Process Act to posit that it empowers the Chief Judge of each State High Court to make Rules and Regulations for conduct of judgment enforcement proceedings falling under parts II, III, IV, V, and VI of the Act.

Learned counsel for the 1st Respondent was however magnanimous enough to agree in paragraph 5.6 of the 1st Respondent’s brief that the High Court of Lagos State (Civil Procedure) Rules, 2004 did not specifically provide for enforcement of judgment.

I must agree here that the provisions of Section 94 are very clear on the empowerment of Chief Judges to make Rules and Regulations with the approval of the Governor in respect of any or all the matters so listed by the Act but given that the Chief Judge of Lagos State is yet to exercise the powers so conferred to make rules on such matter, the issue remains hanging and does not involve imposing the provisions of the Civil Procedure Rules on the clear detailed provisions of the Judgment (Enforcement) Rules. Consequently, reliance on Order 13 of the High Court of Lagos State (Civil Procedure) Rules to hold that the Learned trial Judge was right in granting an Order exparte to join the Appellant as a subrogating party cannot be sustained. The Appellant was not given an opportunity to be heard on the application for subrogation. This is a fundamental flaw that leads to no other conclusion than an order to set it aside.

In the final result, this issue is resolved against the 1st Respondent.

Having so resolved issue 1, this ordinarily put paid to any other issue but for what it is worth I will deal with issue 2.

ISSUE TWO
Herein, learned Senior Counsel for the Appellant submitted that the Lower Court erred in law in joining the Appellant as a Subrogating party for the execution of the judgment debt when the judgment debtor was and is still in existence and in operation. He added that it is not in doubt that the 1st Defendant in the Suit and now the judgment debtor was “MANNESMANN-ANLAGENBAU” (MAAG) and it is also not in doubt that in 1995, five years before the substantive judgment was delivered on 25 -2000 (MAAG) had merged with “MANNESMANN DEMAG” (MDAG) and in 1999 (MDAG) merged with KRAUSS-MAFFEI AG to form “MANNESMANN DEMAG KRAUSS-MAFEI AG” and in 2002 it was transformed accordingly to German Law to “MANNESMAN DEMAG KRAUSS-MAFFEI GMBH”.

He added that on 18th December 1998 MDAG entered into a Purchase and Sale Agreement (PSA) with the Appellant (TECHNIP) in which agreement MDAG agreed to sell and Technip agreed to purchase two divisions of its business namely, MDEU and KTI divisions and Technip assumed their liabilities as defined in Article 1.4 of the Purchase and Sales Agreement (PSA) learned Senior Counsel further emphasized that after the said purchase agreement, in 1998 MDAG did not only continue to exist but also underwent two further transformations and this reality of its existence was acknowledged by the Learned Trial Judge in his Ruling wherein he held that; “to my mind, it does not matter a hoot that the judgment debtor is still in operation.”

Learned Senior Counsel then contended that such holding of the Lower Court vitiates the justification or need for the joinder of the Appellant as a subrogating party for the execution of the judgment debt under Order IV Rule 9(1)(a) of the Judgment (Enforcement) Rules relied on by the learned trial Judge in making the Order.

He emphasised that by the said Order IV Rule 9(1)(a) only “death or otherwise” would justify or enable the Court to subrogate a third party for the judgment debtor.

He added that by the Ejusdem Generis rule of interpretation the words “or otherwise” used in Order IV Rule 9(1)(a) can only relate to the same Genus and synonymous with death and in a corporate setting, the Genus of death includes but not limited to mergers, acquisitions, wind-up proceedings, liquidations and the like provided that any such eventuality results in the corporate entity being extinguished.

He then further contended that all the facts available to the Lower Court show that the judgment debtor (MDAG) was not extinguished upon the Technip Sale Agreement but retained its corporate identity and continued to operate, but the Lower Court held otherwise by insisting that change had taken place in the status of the judgment debtor, without any authority or precedent that the purchase and sale of an asset transforms into a “change” that will subrogate the purchaser for a judgment debtor.

It was therefore submitted that the condition precedent as a prelude to the execution of the judgment debt pursuant to Order IV Rule 9(1)(a) of the Judgment (Enforcement) Rules which is “death and/or otherwise of the judgment debtor” had not occurred as at when the Lower Court made the subrogation order which ought to, in the circumstances, be set aside.

On the principle and application of the Ejusdem Generis Rule, he referred to Blacks Law Dictionary, 8th Edition, 2004 Page 556 and the case of OKOTIE-EBOH VS MANAGER (2004) 18 NWLR (PT 905) 242; which authority also held that a law which seeks to impose a disability on a person “ought to be interpreted strictly or restrictively.”

It was also submitted that the Technip’s Purchase and Sales Agreement did not at all recognize the liability owed to the 1st Respondent by (MAAG) which now culminated in the judgment debt and as such could not pass on to the Appellant.

He referred to the preamble to the Purchase and Sales Agreement wherein the Appellant purchased the MDEU and KTI divisions of the MDAG to contend that the transaction was clearly an asset sale which the Lower Court erroneously interpreted to mean that Technip acquired the rights, the titles and the interests in the Assets of MDEU and KTI from (MDAG) and the effect is that some assets of (MDAG) are traceable to Technip.

This means that the primary focus or justification for the Subrogation Order exparte against the Appellant was because of the Asset purchase by Technip pursuant to the (PSA). He added that any nexus between the purchased asset and the judgment debtor ought to be established through the (PSA), being the sole foundation upon which the Order of Subrogation was made and without such nexus, the Subrogation Order must fail.

Also referring to the holding of the Lower Court that the Appellant assumed liabilities are derived from Article 3.1 and 1.4 of the (PSA) Technip Agreement, learned Senior Counsel submitted that the Appellant did not assume liability for the 1st Respondent’s under the said (PSA) because there is no mention at all of such liability in the agreement and paragraph 3.1 (c) relied on by the Lower Court made no mention or included such liability.

On the proper interpretation and appreciation of Article 3.1 (c) of the Agreement, learned Senior Counsel relied on OKOTIE-EBOH VS MANAGER Supra and FAWEHIMI V IGP Supra to contend that by the Ejusdem Generis Rule the (AIC LTD liability) i.e the 1st Respondent’s liability cannot and would not derive from Article 3.1 (c) which deals with Agency and distributorship agreement, licence agreements, lease rental agreement, utility supply agreements because the said 1st Respondent’s liability is unique and outside the genre of the daily routine agreement listed in Article 3.1 (c) and also given that the said liability is staggering and enormous and as such cannot be included by assumption or implied reference.

Learned Senior Counsel also referred to Article 3.3 of the PSA as well as the affidavit evidence of the “Expert witnesses” at the Lower Court particularly paragraphs 7, 12, 13, 15 and 16 thereof and which evidence the Lower Court did not consider or even mention notwithstanding their status as expert witnesses. Vide SPDC VS ADAMKUE (2003) 11 NWLR (PT 832); SPDC VS EDAMKUE (2009) 14 NWLR (PT 1160) 1 and OYAKHIRE VS OBASEKI (1986) 1 NWLR (PT 18) 735.

On the principle of privity of contract vis a vis the (PSA), it was submitted that the joining of the Appellant as a subrogating party is an affront to the age old principle which dictates that a person cannot claim under a contract to which he is not privy. Vide ALFONTRIN LTD (the owners of M.V Fotini) vs A.G FEDERATION (1996) 9 NWLR (PT 475) 634 at 655 and MAKWE VS NWUKOR (2001) 14 NWLR (PT 733) 356 at 372; TWEDDLE VS ATKINSON 30 LJ OB 265; DUNLOP PNEUMATIC TYRE CO. LTD VS SELFRIDGE & CO. LTD (1915) A.C. 847.

He then concluded that the Appellant is not privy to the 1st Respondent’s commission agreement with MAAG and could not have been sued thereunder.

Replying on this issue, learned Senior Counsel for the 1st respondent adopted his argument on issue No 1.

It was then submitted that it is not correct to state that the Lower Court did not consider the legal opinion of the Expert witness on German law but because it was wrongly premised, the Lower Court was therefore not bound to follow such opinion which ran off tangent from the Appellant’s own directly relevant and undisputed documentary evidence as per the PSA (Exhibit SO1). On the approach to expert evidence, he cited FAYEMI VS ONI (2009) 7 NWLR (PT 1140) 223 and NGIGE VS OBI (2006) 14 NWLR (PT 999) Page 1.

Learned Senior Counsel referred to and adopted the review of the relevant evidence in paragraph 2.10 to 2.27 of the brief and also noted that the Lower Court relied on the Appellant’s PSA and ATA (Asset Transfer Agreement) Exhibits SO1 and SO2 respectively to reach its decision.

He submitted that a subsidiary to a parent company cannot be automatically presumed to have succeeded to its liabilities vide M.O KANU & SONS & CO. VS FBN PLC (1998) 11 NWLR (PT 572) 116 at 129. And whatsoever to the contrary of this proposition merely on account of having been a transferee of some specific assets of the parent company must prove it to make the separate subsidiary liable. See GARUBA VS K.I.C LTD (2005) 5 NWLR (PT 917) 160.

It was further submitted that the terms of the PSA exhibited by the Appellant is conclusive against it the parent Technip that assumed liabilities and commitments thereunder. He referred to the preambles 1-4 of the PSA at page 327-328 of the Record to say that it confirms that the “sold divisions were companies, and their shares were being sold and Article 9.1(c) at page 365 shows that each of the company sold is duly established, validly existing etc.” other parts of the PSA referred to are Article 1.1, 1.4, 3.1(c), 4.3, 6.1, 9.6, 10.1 and Exhibit SO7.

Learned Senior Counsel further argued that in view of Article 15.3 in the PSA, the Appellant as the parent and principal contracting party under the PSA was rightly found subrogated to all DEMAG liabilities and obligations it assumed and the Order of the Lower Court for Subrogation against the Appellant was contingent liability.

He added that MAAG which the Appellant held out as the answerable party dropped out of the picture ever before the execution of the PSA in 1998 and as such before the judgment delivered in the year 2000 during which the Appellant and its affiliate companies have become liable and they ought to have been so informed by DEMAG – and if not done, amounts to misrepresentation by the seller in which case the Appellant has a case against DEMAG for indemnification.

It was further contended that failure of Appellant to produce the list of litigations it inherited under the supposedly annexed Exhibit 11 in the PSA is the strongest point against the Appellant’s resistance to being liable to the enforcement proceedings. On the construction of Order IV Rule 9(1)(a) of the Judgment (Enforcement) Rules vis a vis the Ejusdem Generis Rule, it was submitted that while accepting the restatement of the said rule of interpretation by the Appellant, it however misapplied the Rule and as such the Appellant’s argument canvassed in paragraphs 4.1.1 of the brief attacking the Order of the Lower Court is misconceived. He added that death as judicially interpreted in human and constitutional con can have varying meanings and it could mean to expire or cease to exist but it could also be inferred as covering a situation of departure without intent to return to office of a Governor elect thus paving the way for the Deputy Governor elect to assume his office. Vide PDP VS INEC (1999) 11 NWLR (PT 626) 200 at 245.

It was also argued that the word “otherwise” connotes a different scenario from that which it is associated as an alternative and not a substitute. He cited the case of A.T.M PLC VS B.V.T LTD (2007) 1 NWLR (PT 1015) 259 where it was held that “otherwise simply means in a different manner, in another way or in other ways.”

Therefore the expression “by death” followed by “or otherwise” cannot be interpreted to mean event comparable or similar to death.

On the effect of lack of privity of Technip’s liability to AIC, it was argued that PSA, acquisition by which the target entities MDEU and KTi companies were submerged in Technip had the effect of transforming the sold entities into an integral part of acquiring entity. He referred to the Book MERGERS AND ACQUISITION IN NIGERIA, LAW AND PRACTICE by Fabian Ajogwu SAN (2011) at page 7.

On the issue of third party consent, the learned Senior Counsel submitted that this is a fresh issue never canvassed at the Lower Court and such fresh issue can only be canvassed on appeal with the leave of the Appellate Court properly sought and obtained and where no such leave is obtained, the court has no jurisdiction to entertain it. See HAJAIG VS HAJAIG (2004) 13 NWLR (PT 890) 249, AKPAN V. BOB (2010) 17 NWLR (1223) 421.

Alternatively, he submitted that the interpretation given to Article 3.3 by the Appellant is untenable because the consent envisaged in that Article is not intended to apply to a third party in litigation with MAAG and which litigation DEMAG has succeeded before the purchase by Technip and it is the purchaser, by the Article who is to demand for such consent. Thus Article 3.3 cannot avail the Appellant based on the decision in FASHOGBON’S case Supra.

Further on privity it was submitted that it does not apply to the case of assignment because by operation of law, if the party buys another target company it becomes statutory and legal assignee of the Assets and liability. Thus the affected third party can proceed against the assignee, but it must join the Assignor unless the assignment was on notice to the third party. He added that the case of ALFOTRIN LIMITED (the owners of M.V Fotini) vs A.G FEDERATION cited Supra by the Appellant is a complete answer to the submission on privity.

This court was then urged to resolve the issue against the Appellant.

The Appellant’s reply on this issue is at pages 25 to 29 of the Reply brief. It has been carefully perused and will be addressed as the need arises.

The bone of contention here is whether the Lower Court was justified in joining the Appellant as a subrogating party for the judgment debt obtained against the original judgment debtor (MANNESMANN ANLAGENBAU AG) (MAAG).

Now, from the parties submissions in their respective briefs of argument as well as the content of the Record of Appeal, the following facts are made manifest:-
(1) that the 1st Respondent obtained judgment against (MAAG) now 2nd Respondent in a judgment delivered by the Lower Court on 25th January, 2000.
(2) that sometimes in 1995 after the Suit had commenced, the 2nd Respondent merged with the 3rd Respondent, MANNESMANNN DEMAG AG (MDAG) which has many subsidiary companies.
(3) that in 1999 MDAG merged with KRAUSS-MAFFEI AG to form MANNESMANN DEMAG KRAUSS-MAFFEI AG which name was in 2002 changed to MANNESMANN DEMAG KRAUSS-MAFFEI GMBH pursuant to the requirements of German law.
(4) that in December 1998, the 3rd Respondent MDAG entered into a Purchase and Sales Agreement with the Appellant (Technip) wherein MDAG agreed to sell and the Appellant agreed to purchase two Divisions of MDAG, namely MDEU and KTI which were Energy and Environmental and Petrochemical and Refinery Division respectively.
(5) that the two companies MDEU and KTI were referred to in the preamble to the PS Agreement as “sold companies” and their shares also term “sold shares”.
(6) that after conclusion of the sale of the two companies, the 3rd Respondent continued to exist as a corporate entity – while also transforming from one corporate name to another.
(7) that the two companies MDEU and KTI are duly established and incorporated companies with shares under the laws of the (sic) as shown in Articles 9(1)(c) of the PSA.

The question then is, with the above stated factual situation, was the Lower Court right to have joined the Appellant as a subrogating party in the garnishee proceedings before it?

The Learned Trial Judge in deciding on the issue held at page 687 of the Record as follows:-
It is the case of the second subrogating party that in the Asset Transfer Agreement, the purchaser i.e Technip merely took over some assets of MDEU division from Mannesmann Demag AG Wolfgang-renter Patz 47053 Duisburg Federal Republic of Germany; the Asset Transfer Agreement, Technip assumed the Assumed MDEU liabilities as defined in Article 1.4, of the aforementioned Purchase and Sale Agreement.

Under Article 1.4, the term Assumed MDEU liabilities was defined as meaning some liabilities which include the liabilities to be assumed by the purchasers under articles 2, 3.1 and 4.1 which include:
All accounts payable which result from MDEU business related products shipped or service rendered to the Demag group before the effective date, if, and to the extent, they have not been paid in full on the effective date.

The liabilities also include all obligations which relate to time periods after the effective date or which by their term or nature are due to be discharged after the effective date or which are based upon or result from the agreements or commitments to be assumed by the purchasers pursuant to Article 3.1.

From above, it is obvious to me that Technip assumed some obvious liabilities and obligations beyond assets take over. Therefore it is safe to come to conclusion that Technip took over some liabilities of Mannesmann Demag AG. To that extent, Technip is a subrogee of Mannesmann Demag A.G.

The Learned trial Judge in interpreting the provisions of Article 4.1 of the PSA seem to have lost sight of the fact that the phrase “products shipped or service rendered” relates to the day to day running of the MDEU business and cannot be the service as relating to the transaction between the 1st Respondent and MAAG. It is true that the Appellant assumed some liabilities under the PSA but none to my mind seem to fix into the type created between the 1st Respondent and MAAG. This can be gleaned from Article 4.1(b) which made specific reference to the Assumed Agreement under Article 3.1 which specification does not fall into the category of liability created between the 1st Respondent and MAAG.

If one is to go by the stance of the Lower Court in relying on Article 4.1(a) under Assumed Liabilities of the Purchaser to hold that the Appellant assumed the MAAG’s liabilities, what then will be the effect of Article 4.2(b) and (c) under “Liabilities not Assumed by the Purchaser? It reads thus:-
4.2 “The purchasers shall not assume, and the Demag group shall retain the following liabilities which relate to the MDEU business.
(b) product liability claims which result from MDEU products shipped or MDEU business related services rendered by the Demag group before the effective date.

There is no doubt that contradiction will arise if Article 4.1 creates liability to be assumed on behalf of the 1st Respondent as alluded to by the Learned Trial Judge when placed side by side with Article 4.2, which excluded the Appellant from such liability.

If anything, Article 4.2(d) precludes the Appellant from assuming liabilities on:-
(d) “Payables due to Mannesmann Demag AG. or companies affiliated with it, unless they are shown, accrued for or otherwise reflected in the Effective date balance sheets.”

In the circumstance, it seems to me that the reasoning and conclusion of the Learned Trial Judge on the assumption of liability based on Articles 1.4, 3.1 and 4.1 are flawed and erroneous.

This brings me to the issue of privity of contract. It is not in doubt that MDAG outrightly sold its two companies MDEU and KTI with their shares to the Appellant company in December 1998 subject to such Assets and liabilities assumed under the PSA. In effect, the said MDEU and KTI with effect from December 1998 cease to be or associated with DEMAG and had in their entirety become part of the Appellant company.

On the other hand, the transaction which is the subject matter of the subrogation was between the 1st Respondent and MAAG which, subsequently, in 1996, transformed to DEMAG.

The question then is, can it be allowed in law, (in the absence of any specific agreement to that effect) for the Appellant to assume liability as a subrogee for a transaction it has nothing to do or connect with; both solely between the Appellant and DEMAG whose existence as a corporate entity is not in doubt though under a new name?

The learned Senior Counsel for the 1st Respondent in arguing on the evidence of Technip’s liability for the judgment submitted at pages 6 to 7 paragraphs 2.21 to 2.23 as follows:-
2.21 “with the above factual elaboration of the transformational trajectory of MAAG to the Technip, the remaining relevant issue in this appeal takes its bearing from the basis for (1) the enforcement of the judgment against Technip, and (2) the garnishee order absolute made against the 1st and 2nd garnishees adjudged by his lordship, Ade-Alabi J, to be indebted to Technip on account of two contracts …
2.22 “the connection is simply Technip took over the Demag subsidiaries that succeeded to the legacy liabilities traced by 1st Respondent from MAAG group to DEMAG as shown in paragraph 2.22 (7) and (8) supra. Appellant by Exhibit WK32 acknowledged the project as its and invariably cannot avoid attendant and contingent liability including the subject matter of the suit on which judgment was entered in favour of 1st Respondent.
2.23 “by the two agreements which Appellant exhibited before the Lower Court, one called Purchase and Sale Agreement (PSA) dated December 19, 1998 and another called Asset Transfer Agreement (ATA) dated March 3, 1999, Appellant acquired by DEMAG in 1995. Both subsidiaries were among a basket of subsidiary corporate entities wholly owned by MAAG which constituted the MAAG Group that DEMAG acquired. DEMAG itself is a Group of Companies.”

Given the above accepted submission of the Appellant’s counsel which shows clearly that the MDEU and KTI were subsidiaries of DEMAG with their own corporate identity capable of being sued or sue, it is not in dispute that they were not parties to the contract of commission between the 1st Respondent and MAAG group (now DEMAG). Therefore can a corporate subsidiary company as distinct from the parent company be held liable for any contract entered by the parent company even for its benefit? To my mind, even before the sale of the MDEU and KTI to the Appellants the two Companies are strangers to the contract between the 1st Respondent and MAAG and having been outrightly sold with their shares, they have become total strangers to the subsequent happenings in MAAG or any other new name it has assumed, except for liabilities assumed by them under the PSA which I had earlier held does not include the commission contract, subject matter of the judgment delivered in the year 2000 by the Lower Court.

In the light of the above, it is my humble view that the Lower Court was not justified in joining the Appellant as a subrogating party for the execution of the judgment debt in this Suit.

The issue is accordingly resolved against the 1st Respondent.

Having so resolved issues 1 and 2, issues 3 and 4 become academic and will serve no useful purpose to embark on any discourse thereon.

This appeal is accordingly allowed for being meritorious.

The Order joining the Appellant as a subrogating party as well as the Garnishee Order Absolute made against the said Appellant in the ruling of the Lower Court delivered on 4-11-2005 are hereby set aside.

Parties to bear their costs.

SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother SAMUEL CHUKWUDUMEBI OSEJI, JCA.

I agree with the reasoning and conclusion reached therein and have nothing extra to add.

Accordingly, I too join my learned brother in holding that this issue is again accordingly resolved against the 1st Respondent. Accordingly, this appeal is also allowed by me for being meritorious.

The order joining the Appellant as a subrogating party as well as the Garnishee Order Absolute made against the said Appellant in the ruling of the Lower Court delivered on 4-11-2005 are hereby set aside.

Parties to bear their costs.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading before today the lead judgment just delivered by my learned brother Samuel Chukwudumebi Oseji, JCA.

I agree.

Appearances

Paul Usoro SAN with Chukwudi Eze, Sixtus Onuka, Yetunde Olufayo (Miss) and Temitope KutiFor Appellant

AND

Prof. A. B. Kasunmu SAN with A. J. Owonikoko SAN, T. P. Olatunde (Miss) and V. C. Mbaeze for the 1st Respondent.For Respondent