Niwa V. SPDC (2020)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C. 

The appellant commenced suit No. FHC/PH/322/03: National Inland waterways Authority v Shell Petroleum Development Company of Nigeria Limited at the Federal High Court, Port Harcourt Division via an originating summons dated 12th May, 2004. Upon conclusion of argument on the originating summons, the Federal High Court delivered judgment on 22nd day of April, 2005 wherein the Court granted the reliefs sought by the appellant in part.

Dissatisfied with the judgment of the trial Court, the respondent herein (as defendant) appealed to the Court of Appeal against the said judgment except the part holding that there were irreconcilable conflict in the affidavit of the parties. The appellant herein (as plaintiff) cross-appealed against part of the judgment of the trial Court. After briefs were filed and exchanged, the appellant as cross-appellant at the Court below realized that he ought to have obtained leave before filing the cross appeal. He then filed a Motion on Notice on 28/3/06 for trinity Prayers.

​In its ruling on 10th July, 2006, the Court below dismissed the cross-appellant’s motion for

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lacking in merit. Thereafter, the appellant filed a similar motion dated 20th January, 2007 praying for the same reliefs as the one earlier dismissed by the Court below.

The Court of Appeal, in a ruling delivered on the 7th November, 2007, struck out the Appellant’s application on the ground that the trinity prayers made in the application dated 20th January, 2007 were similar to those made in the previous application dated 28th March, 2006 which was earlier refused by the Court. It also held that the Court had become functus officio after its ruling of 10th July, 2006 refusing the earlier application, It then adjudged the motion an abuse of Court process.

Dissatisfied with the rulings of the Court below, the appellant filed notice of appeal on 31st July, 2008. The said notice contains five grounds of appeal from which the appellant distilled four issues for the determination of this appeal. Briefs of argument were filed and exchanged.

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On 12th November, 2019, when this appeal was heard, the learned counsel for the Appellant Adeyinka Aderemi Esq; adopted the brief of the appellant filed on 29/4/10 but deemed properly filed on 28/1/2011. At the

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said hearing, learned counsel abandoned issues two and four, thus conceding to the preliminary objection raised by the learned Senior counsel to the respondent against the two issues. What this means is that the Appellant argued this appeal based on issues one and three only. In the circumstance, issues two and four, having been abandoned are hereby struck out.

The remaining two issues, which I hereby renumber as 1 and 2 are as follows:-

1. Whether the Court of Appeal was right to have held that the granting of leave to appeal is not sufficient to cure the defect in the Notice of Appeal that had earlier been filed without leave, having regard to the decision of the Supreme Court in the case of Williams v Mokwe (2005) 74 NWLR (pt 945) 249
2. Whether the decision of the Court of Appeal refusing leave on grounds of incompetence operates as a bar on the appellant bringing the same application before the same Court subsequently.

The learned Senior counsel for the Respondent distilled two similar issues as that of the Appellant for the determination of this appeal, though couched differently. The two issues are:-