Shell Petroleum Development Company Nigeria Limited & Anor V. X.m. Federal Limited & Anor (2006)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

I should have had no difficulty or hesitation in dismissing this appeal, brevi manu, on a “bench ruling” on the ground that it is absolutely frivolous in the extreme. But as usual, this court, being the apex court of the land, I am constrained to deal with the appeal on its merit having regard to the issues formulated by the parties in their respective briefs of argument for determination.

This is an appeal against the decision of the Court of Appeal, Lagos Division (hereinafter called “the court below”) delivered on 4th February, 2003 dismissing the appellants’ appeal from an interlocutory decision of the Federal High Court in its ruling delivered on 8th October, 1998. I will in summary and for the avoidance of any doubt state briefly as follows: The respondents as plaintiffs in the Federal High Court, Lagos on 26th July, 1995 filed a writ of summons together with a statement of claim claiming against the defendants/appellants a declaration and an order of perpetual injunction. The appellants in reaction challenged the competence of the said suit in limine- praying that the suit be struck out or dismissed on the ground that no reasonable cause of action was disclosed. After hearing arguments from both learned counsel for the parties, the learned trial Judge Odunowo, J. in a considered ruling delivered on 12th June, 1996 dismissed the application. I note that the respondents filed a fresh statement of claim on 21st June, 1996 after pleadings had been ordered by the trial court. The appellants on 15th November, 1996 filed their amended statement of defence. Notwithstanding the said ruling of 12th June, 1996, the appellants on 27th January, 1997 filed a fresh application seeking:

“An order dismissing or alternatively striking out the plaintiffs writ of summons and statement of claim on the ground that the court lacks jurisdiction to hear the suit.”

The ground for the application is stated to be:

“… that the plaintiff’s writ of summons and statement of claim disclosed no reasonable cause of action.” See page 38 of the records. It could be seen at once that this ground is similar to the application that gave rise to the said ruling of 12th June, 1996. The respondents filed a preliminary objection and prayed that:

“… the prayer being sought in the said motion dated 27th January, 1997 had been distinctly raised and determined by the Federal High Court in its ruling delivered on the 12th June, 1996 and cannot be relitigated in this civil suit.”

One of the arguments proffered by the appellants at the hearing of the objection was/is that “the ruling of the 12th June, 1996 was delivered without jurisdiction”.

However, the learned trial Judge, after hearing arguments on both the application and the preliminary objection, on 8th October, 1998, in a considered ruling dismissed the appellants’ said application. He finally stated at page 14 of the records, as follows:

“… after a sober reflection on the facts, arguments and circumstances of this application, I have no difficulty whatsoever in reaching the conclusion that the defendants’ motion is lacking in merit and it is hereby dismissed. It follows that the plaintiffs’ preliminary objection succeeds and it is accordingly hereby upheld. The case shall proceed to trial as previously scheduled. That is to say that before the appellants brought their said second application, the learned trial Judge had fixed the case for hearing to 30th October, 1996 as the parties had filed and exchanged their pleadings. But the appellants refused to abide by the said fixture. They filed an appeal to the court below, not against the earlier ruling of 12th June, 1996; but against the said later ruling of 8th October, 1998. I note that before concluding the said-ruling of 8th October, 1998, the learned trial Judge at pages 13 and 14 of the records stated, inter alia, as follows:

“Firstly, I have no doubt that the defendants’ motion of 27th January, 1997 is virtually the same as the earlier one which culminated in my ruling of 12th June, 1996.

Secondly, it will be recalled that the matter had earlier been set down for trial on 30th October, 1996, which date was subsequently postponed to 30th January, 1997 for settlement or trial. It was after that date that the defendants brought their curious motion of 27th January, 1998. All the authorities are in agreement that once issues have been joined the objection based on want of reasonable cause of action is no longer available. So long as the statement of claim discloses some cause of action the application to strike out the action cannot succeed on the grounds that the case is weak and not likely to succeed.

Finally, Mr. Ademola is quite right in his submission that the defendants are estopped from bringing the present application, especially since by the time the said application was filed issues had already been joined by the parties …”

The court below per Oguntade, JCA (as he then was) at pages 158, 159 and 160 of the records, stated inter alia, as follows: