J AND L OIL AND GAS LIMITED V. PETROMARINE NIGERIA LIMITED

Legalpedia Citation: (2023-07) Legalpedia 99852 (CA)

In the Court of Appeal

LAGOS JUDICIAL DIVISION

Thu Jun 22, 2023

Suit Number: CA/LAG/CV/1262/2019

CORAM

C.E.NWOSU-IHEME JCA

YARGATA BYENCHIT NIMPE JCA

Muslim Sule Hassan JCA

PARTIES

J AND L OIL AND GAS LIMITED

APPELLANTS

PETROMARINE NIGERIA LIMITED

RESPONDENTS

AREA(S) OF LAW

ADMIRALTY, APPEAL, BANKING LAW, CONTRACT, JUDGMENT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Respondent upon filing the instant suit at the trial Court filed a motion for mareva injunction to freeze all the accounts of the Appellant with all the commercial bank and accompanied same with an affidavit of urgency praying the court that the matter be heard during vacation. While filing the motion for injunction, the respondent undertook to pay damages if her application is without merit.

The motion was granted which compelled the Appellant to rise a preliminary objection to the jurisdiction of the Court to entertain the matter. The Court declined jurisdiction to entertain the Respondent’s case brought by way of writ for damages. However, in the said Ruling on the Preliminary Objection which was brought by the Appellant and upheld, the trial court declined to award the damages of N1 billion which the Appellant prayed for, hence this Appeal.

HELD

Appeal dismissed

ISSUES

Ø Whether considering the express position of the law, the Honorable justice of the lower court rightly held that it was not proper for it to consider the Appellant’s claim for damages?

Ø Whether the Appellant/Applicant is entitled to the reliefs sought in the light of the facts of this case?

RATIONES DECIDENDI

COURT – WHEN A COURT IS COMPETENT

It is the law that a Court is competent when the Court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other, the subject matter of the case is within its jurisdiction, there is no feature in the case which prevents the Court from exercising its jurisdiction, the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction . All these requirements must co-exist conjunctively before jurisdiction can be exercised by the Court. It therefore means that where a Court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility, as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. See Madukolu v. Nkemdilim 1 All NLR 587, Benin Rubber Producers Ltd. v. Ojo (1997) 9 NWLR (Pt. 521) 388 SC, Magaji v. Matari (2000) 8 NWLR (Pt. 670) 722 SC. – Per M. S. Hassan, JCA

“SHALL” – MEANING AND EFFECT OF “SHALL” WHEN USED IN A STATUTE

The word use in Order 6 (1) (a and b) is ‘’SHALL’’ and when the word ‘’SHALL’’ is used in a statute or provision of the Rules of Court makes it mandatory that the rule must be observed. The Apex Court in the case of DIOKPA FRANCIS ONOCHIE & ORS V. FERGUSON ODOGWU & ORS (2006) All FWLR (Pt. 317) 544 made it clear that the word ‘’shall’’ when used in a statute or rule of Court, makes it mandatory that the rule or provision must be observed. – Per M. S. Hassan, JCA

RESPONDENTS NOTICE – MEANING AND PURPOSE OF RESPONDENTS NOTICE

Even though the Respondent did not state clearly the Rules under which he brought his Notice of intention to contend but by virtue of Order 9 Rule 1 of the Court of Appeal Rules 2021. A Respondent who has not appealed from the lower Court’s decision but desires to contend on the appeal that the court’s decision below should be varied does so by respondent’s notice in compliance with the Rules of the Court of Appeal.

A Respondent’s notice is a process filed by the respondent who agrees with the judgment but wants the judgment varied or affirmed on other grounds. See Edicomso Int’I Inc. v. C.I.E. Ltd. (2007) ALL FWLR (Pt. 357) 990 at 1001-1002. The Respondent is not allowed to introduce a fresh case or re-argue his case in a respondent’s notice. See Ogundabejo v. Owoyemi (1993) 1 NWLR (Pt. 271) 517 SC. In the respondent’s notice, the respondent is precluded from introducing a fresh case or re-arguing his case. The general rule is that the respondent is under obligation to confine himself to the appellant’s ground of appeal. However, where respondent’s notice is filled in accordance with the Court of Appeal Rules to contend that the decision appealed against should be varied, either in any event or in the event of the appeal being allowed in whole or in part or that the judgment should be affirmed or varied on other grounds, the formulation of issues and the arguments of the respondent may not be strictly in line with the grounds of appeal. Per UWAIFO, JSC in the case of Bob-Manuel v. BRIGGS (2003) 5 NWLR (Pt. 813) 323 held: ‘’The essential position of a respondent who files a respondent’s notice is that the judgment is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the judgment.’’ – Per M. S. Hassan, JCA

JURISDICTION – WHEN A COURT DECLINES JURISDICTION AFTER GRANTING AN INTERLOCUTORY ORDER

The matter was not dismissed the court only held that the Federal High Court is not the right forum to hear the merit of the claims of the Respondent. In that circumstance, the Federal High court cannot maintain the order for Mareva Injunction, and that would lead to multiple orders in the same matter by court of co-ordinate jurisdiction. – Per M. S. Hassan, JCA

JURISDICTION – WHEN A COURT DECLINES JURISDICTION IT IS NOT A PRONOUNCEMENT ON THE MERITS OF A CASE

Declining jurisdiction and setting aside the order of Mereva injunction and transferring the case to High Court Lagos certainly to my mind does not mean that the injunction granted was without any basis. The Appellant need to do more by way of putting facts before the court by way of affidavit evidence to justify that the injunction was obtained frivolously and to justify his claim of N1 billion Naira damages. – Per M. S. Hassan, JCA

JUDGMENTS – WHEN COURTS OF RECORD HAVE THE INHERENT JURISDICTION TO SET ASIDE THEIR JUDGMENT

Notably, courts of record have the inherent jurisdiction to set aside their judgments, decisions or orders, and such can be exercised where:

The judgment is obtained by fraud or deceit either in the Court or by one or more of the parties;

The judgment is a nullity;

It is obvious that the Court was misled into giving Judgment under a mistaken belief that the parties consented to it;

The judgment was given in the absence of jurisdiction;

The proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication; or

Where there is fundamental irregularity.

See REFUGE HOME SAVINGS & LOANS LTD v. GARKUWA & ORS (2023) LPELR-59982 (SC); ALAO vs ACB (2000) 9 NWLR (PT.672) 264; TOMTEC (NIG.) LTD vs. FHA (2009) 16 NWLR (PT 1173) 358 SC; AND JEV vs. IYORTOM (2012), LPELR-9291 (CA); KALU MARK & ANOR vs. GABRIEL EKE (2004) LPELR-1841 (SC) – Per Y. B. Nimpar, JCA