Warri Refining & Petrochemical Co Ltd V. Gecmep Nig. Ltd (2020)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. 

This appeal is against the judgment of the Court of Appeal, Benin Division, delivered on 5th July 2017, dismissing the appellant’s appeal against the ruling of the trial Court delivered on 11/8/2015 in respect of preliminary points of law raised in paragraphs 1, 2, 3, 6 and 26 of its Statement of Defence, challenging the competence of the suit and the Court’s jurisdiction to entertain it.

By its writ of summons and statement of claim filed on 20/3/2015, the respondent, as plaintiff, sought the following reliefs against the appellant:

1) An order of the Honourable Court declaring the defendant’s letter dated 30th April, 2014 rejecting the Heptane Chemical supplied to it by the Plaintiff as null and void and of no effect.

2) The sum of N20,278,065.00 being the debt owed to the plaintiff by the defendant for the supply of Heptane Chemicals.

3) 21% interest accruing on the debt from December 2013, when the debt was due for payment to the date of payment of the debt,

4) The sum of N450,000.00 being special damages arising from transportation and hotel bills expended by the plaintiffs in nine (9) trips to the defendant’s office over the delayed payment.

5) The sum of N50 million as general damages for breach of contract.

The appellant filed a Statement of Defence and also filed a motion dated and filed on 6/5/2015 seeking an order setting down for hearing the points of law raised in paragraphs 1, 2, 3, 6 and 26 of the said Statement of Defence as follows:

“1. The defendant shall contend by way of objection at the trial that this suit is grossly incompetent as the same was instituted in the absence of a written notice of intention to commence legal proceedings against the defendant (pre-action notice) first served on it in accordance with Section 12(2) of the Nigerian National Petroleum Corporation Act, Cap. N123, Laws of the Federation of Nigeria, 2004 and that this Honourable Court lacks the requisite jurisdiction to entertain the same and will therefore urge this Court to strike it out.

2. The Defendant shall also contend by way of objection at the trial that this suit is grossly incompetent as it is instituted against an unknown party and that this Court lacks the requisite jurisdiction to entertain the same and will therefore urge this Honourable Court to strike it out.
3. The defendant shall also contend by way of objection at the trial that the defendant is a Federal Government Agency and that this Honourable Court lacks the jurisdiction to hear and determine the suit and the same should be struck out.

In the Alternative

6. The Defendant admits paragraph 2 of the statement of claim only to the extent that the Warri Refining and Petrochemical Company Ltd as a company registered under the laws of Nigeria is a subsidiary of the Nigerian National Petroleum Corporation. The defendant is not known as Warri Refining & Petrochemical Co. Ltd as contained in the processes filed by the plaintiff before Court. The defendant shall found upon her certificate of incorporation.
7. The defendant shall further contend at the trial that the plaintiff did not serve her with any prior written notice of intention to commence legal proceedings against her (pre-action notice) in accordance with Section 12(2) of the Nigerian National Petroleum Corporation Act Cap. N123, Laws of the Federation of Nigeria, 2004.

The parties filed and exchanged written addresses in respect of the points of law, which were accordingly set down for hearing. The learned trial Judge, in a considered ruling delivered on 11/8/2015, held inter alia, as follows:

“From the claimant’s claim, as contained in paragraph 23(i) – (v) of the statement of claim as reproduced earlier in the ruling, and in view of the decision in all the cases considered herein, the plaintiff’s claim is in respect of breach of a simple contract of supply of chemicals from the defendants… Therefore it is one which, in my estimation can be determined by a Court other than the Federal High Court.” (See page 121 of the record).

On whether the requirement of a pre-action notice is applicable to this case, His Lordship held: