Chief Reginald F.p. Abbey Hart & Ors. V. T.s.k.j. Nigeria Ltd. & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A. 

This is a motion brought pursuant to Order 3 Rules 1 – 4 and Rules 23 of the Court of Appeal Rules, 1981 praying this court for the following reliefs:

“1. An Order in the interim directing the 1st respondent herein to pay over to the Registrar of this court the sum of USD$360,000 being and representing the reserved 1st year’s rent due since September 1996 and such other sums forming part of the USD$700,000 agreed to be paid by 1st respondent (as the same may fall due from time to time) on account of an 8 year lease of the appellants’ land in Bonny now in dispute currently being commercially used by the 1st respondent) and for the same to be domiciled in an interest yielding foreign currency domiciliary account with either the Union Bank of Nigeria PLC, First Bank of Nigeria PLC or other reputable bank in Port Harcourt pending the determination of this appeal.

2. Any further or other Orders as this Court may deem fit.”

The motion is supported by an affidavit of 27 paragraphs deposed to by one Warialabo (Dr.) Ernest Meshack Hart. The 1st respondent T.S.K.J. Nigeria Limited filed a counter-affidavit of 45 paragraphs deposed to by one Otonye Llewellyn Davies. Mr. L.E. Nwosu learned counsel for the appellants/applicants in moving his motion informed this court that he sought a similar application at the court below and the application was refused. Reference was made to the, Ruling of the lower court annexed to the motion paper. It was submitted for the applicants that paragraphs 1, 3, 4, 5, and 6 of the affidavit in support of the application show the res whilst paragraphs 7, 8, 9 and 10 sufficiently show the interest of the applicants in the res. Paragraphs 11, 16, 22, 24 and 25 show the mischief the applicants according to them are seeking to prevent. It was also submitted that paragraphs 14 and 15 of the affidavit of the applicants show that the 1st respondent is already using the land for commercial purpose whilst paragraphs 18, 19, 20 and 21 show the fate of the applicants in the court below. It is the contention of the learned counsel for the applicants that their Notice of Appeal which contains the grounds of appeal shows arguable appeal and paragraph 22 shows irreparable damage. It was contended that paragraph 23 of the affidavit of the applicants shows that the order sought is beneficial and consistent with common sense to all the parties. Reference was made to the counter-affidavit filed by the 1st respondent on 5/5/97. It is of 45 paragraphs. It was submitted that the oath is of doubtful integrity visa- vis the motion of the applicants. It is the contention of the applicants that the counter-affidavit substantially supports their own case and therefore there is no counter-affidavit as such. It was submitted that paragraphs 13, 19, 21, 26 and 33 therefore show a more than innocent bystander posture of the 1st respondent with 2nd respondent. It was contended that paragraphs 23 and 24 whilst denying that they are not on the land for commercial purpose is contradicted by paragraph 36 which says that the development that they are making are beneficial to the applicant. It was submitted that the 1st respondent will not suffer any damage if the money is paid into court. It is the contention of the learned counsel for the applicants that the 1st respondent has something to hide and as such, this court should grant the application of the applicants.

Mr. Dokubo learned counsel for the 1st respondent submitted that this is an application that ought not to have been brought to court in the first place because it lacks merit completely and it was brought in utter bad fate. It was contended that in order that this Honourable Court may make the order sought it must have either of this two: The maintenance of the status quo or the preservation of the subject matter of the litigation. It was submitted that the money sought to be attached by the application flows directly from an agreement between the 1st respondent and the 2nd respondent and if that is the case, is that money due and owing at this point in time? It was submitted that the money is not due and owing at this point in time. Reference was made to paragraph 7 of the counter-affidavit to show that the 1st respondent has suspended any money due under the agreement. That this was done by a notice of suspension of payment dated 8/8/96 annexed as Exhibit “TSKJ.” It was contended that the status quo that must be maintained must be that state of affairs whereby payment due under the said agreement has been suspended by Exhibit “TSKJ1.” It is the contention of the learned counsel for the 1st respondent that granting the application in effect negates Exhibit’ 8′ annexed to the applicants’ motion. It was submitted that the applicants cannot in one breath condemn the agreement while in another breath they seek to derive benefit therefrom as this is contrary to the doctrine of election. It was contended that one cannot approbate and reprobate at the same time. On the question of preservation of the subject matter of the litigation it was submitted that the subject matter is not in question, that is, the land. It was submitted that the parties are engaged in this litigation on the question of title to the land. It was argued that the subject matter is not the money but a declaration of title to the land. It was submitted that all the parties are agreed that the 1st respondent should remain on the land and develop it. It is also the contention of the learned counsel for the 1st respondent that it is evident from the totality of the affidavit that the land should be developed. It was also contended that there is no irreparable damage that will be done to the applicants if the application is refused. It was submitted that at the end of the day if the appeal of the applicants succeeds the 1st respondent will be made to pay and there is nothing to show that at the end of the day the money will not be there and therefore, there is nothing to be preserved. It was also submitted that the applicants being strangers to the agreement they cannot come to this court to ask for a relief based on the agreement as there is no privity of contract between the applicants and the 1st respondent. Reference was made to the case of Dunlop v. Selfridge (1915) A.C. 847 and Chitty on Contract 25th Edition page 662 paragraph 1221. The case of Brollo (Nig) Ltd v. Nkwocha (1995) 9 NWLR (Pt.419) 361 at 368 was also cited. Reference was made to granting a substantive prayer at interlocutory stage. It was submitted by the learned counsel for the 1st respondent that if this application is granted it will render nugatory the substantive appeal before this court which is exactly on the same terms. On preservation of property reference was made to Oluwa Glass Ltd. v. Oladapa Ehinlenwo (1990) 7 NWLR (Pt.160) 14 ratio 1. Learned counsel for the 1st respondent therefore urged this court to disregard this application and instead expedite action on the substantive appeal. In other words this application should be dismissed by this court.

Mr. Abigo for the 2nd respondent associated himself with the submission of the learned counsel for the 1st respondent.

Mr. Wali for the 3rd respondent did not oppose the application.

Mr. Pepple for the 4th respondent also associated himself with the submissions of the learned counsel for the applicants.

Mr. L.E. Nwosu further submitted in his reply that the money and the res are one and the same thing.

Reference was made to Order 33 Rule 2 of the Rivers State High Court Rules. It is pertinent to state that there is an appeal pending in this court in respect of this matter. The Notice of Appeal dated 25th April, 1997 was filed on the same date. Part of the Notice of Appeal reads:-

“2. PART OF THE DECISION APPEALED AGAINST

The whole decision especially:-

(a) That part of the Ruling where His Lordship refused to Order the Domiciliation of the sum of USD360,000.00 in the name of the lower court Registrar being 1st instalment of the 8 year rent reserved and payable by the 1st respondent for the land the subject matter of litigation and into which land the 1st respondent had already entered and occupied; and

(b) That part of the Ruling where His Lordship held that there was no privity of contract between the plaintiffs/appellants and 1st defendant/respondent in the Agreement for Lease of the Land in dispute and therefore cannot apply for the preservation of the $360,000.00 – the proceeds therein reserved to be paid as 1st year Rent.