Mobil Oil (Nigeria) Plc V. Ial 36 Inc. (2000)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C.

There are before us an appeal by the 1st defendant in an action [suit no. FHC/L/123/92) (“the suit”)] commenced at the Federal High Court and across-appeal by the plaintiff in the said suit. The appeal and the cross-appeal are from the decision of the Court of Appeal (Oguntade. Pats-Acholonu and Aderemi. JJ.C.A.) on an appeal brought before them from the decision or the Federal High Court. For convenience, in this judgment the appellant is referred to as the 1st defendant and the respondent is referred to as the plaintiff.

In the Federal High Court the plaintiff’s claim was initially for cost of repairs of plaintiff’s aircraft which was leased to a company, called Barnax Airline Ltd, and which was damaged when the fuel truck owned by Mobil Oil (Nigeria) Plc, the 1st defendant, drove into it. By a subsequent amendment the plaintiff’s claim was for damages against the 1st defendant and another, jointly and severally, for the damage done to its aircraft by the 1st defendant’s fuel truck at the Port Harcourt International Airport. As contained in the plaintiff’s 2nd amended particulars of claim and 2nd amended statement of claim the particulars of the plaintiff’s claim were as follows:

“(i) Net amount indemnified by insurers

to Insured -IAL 361 INC.$1,441.678.84

(ii) Survey and Legal fees $200,000.00

(iii)General damages $100.000.00

$ 1, 741.678.84”

The plaintiff amended its particulars of claim and statement of claim twice; first, on 14th August, 1992 and, second, on 14th June 1994. The defendants filed their statement of defence to the first amended statement of claim on 8th October, 1992. They have not filed an amended statement of defence in response to the second amended statement of claim when by a motion on notice filed on 15th September, 1994, they applied pursuant to Order 27 rules I and 3 of the Federal High Court (Civil Procedure) Rules (“the Rules”) and the inherent jurisdiction of the court that the plaintiff’s claim against the defendants be dismissed “for want of a reasonable cause of action against the defendants and for non-compliance with S, 58 of the Insurance Decree No. 58 of 1991,” Several grounds were given for the application, but since most of them are irrelevant to the issues in this appeal, there is no need to set them out. The plaintiff raised an objection to the application on the ground that it was incompetent as the defendants had already filed their statement of defence.

Ukeje, J. before whom the application came, overruled the plaintiff’s objection. She held that the action against the 2nd defendant, an insurance company was bad for non-compliance with the mandatory provisions of section 58 of the Insurance Act since the requisite one month’s notice was not served on it prior to the action and that the action against the 1st defendant was incompetent because the plaintiff lacked “locus to institute the action.” In the event, the learned judge struck out the plaintiff from the suit, and dismissed the suit on the ground, as she put it, of “the plaintiffs lack or locus to institute or prosecute the action”.

The plaintiff appealed to the Court of Appeal contending, first that the trial judge was wrong in entertaining the demurrer application after the close of pleadings by the parties, secondly. that she was in error in relying on “evidence (or other than) the statement of claim” in determining that the plaintiff did not have a reasonable cause of action, and. thirdly, that the statement of claim disclosed a cause of action. There was no appeal from the order striking out the 2nd defendant from the suit.

Pats-Acholonu, J.C.A. who delivered the leading judgment of the Court of Appeal with which Oguntade and Aderemi. JJ.C.A., agreed. disposed of these contentions as follows. As to the first. he regarded it as indulging in mere technicalities to hold that the demurrer application was incompetent. While acknowledging that “the Supreme Court in its judgments in this sort (sic: of) procedure have held tenaciously to the view that once the statement of defence has been filed parties must lead evidence,a court may be constrained against its better judgment to blindly follow suit.”, he nevertheless went on to say that: “a party can take a point of law at any early stage it does not matter whether such recourse to wind up the case at that stage is made after the statement of claim before the defence or even after the parties close their pleadings.” Being of the further view that Order 27 of the Rules is not exhaustive, he concluded that it was not wrong for the defendant to question the competence of the plaintiff’s pleadings and that the course taken by the defendant was proper.

In regard to the second issue, the learned justice held that the plaintiff having failed to specify in what regard the trial judge had made use of facts outside the statement of claim,there was no way the court could pronounce on the plaintiffs complaint. On the third issue, he held that the action against the defendant subsisted. It is not quite clear what his pronouncement on the material question, whether there was want of reasonable cause of action, was. All he said was this: “The cause of action in the suit is the damage caused to the aeroplane but one would have to have a holistic approach to all the averments to determine whether the respondents(sic) (i.e. the plaintiff) are remotely connected with the matter and whether suit was premature.” However, the parties in this-appeal seemed to have proceeded on the footing that the court below had held that the statement of claim disclosed a reasonable cause of action.

It is clear that the threshold question that must be dealt with in this matter is that raised by the cross-appeal which is whether the defendant’s application was competent. The provisions of Order 27 of the Federal High Court (Civil Procedure) Rules are as follows.