Robertson Group Plc V. Geo Group Limited (2002)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A. 

This is an interlocutory appeal against the Ruling of the Edo State High Court, holden at Benin, in Suit No. B/142/96 delivered on 7/5/98, in an application brought by the plaintiff now respondent requiring the appellant as defendant to deposit the sum of N10 million as security for purposes of securing the appearance of the defendant/appellant to answer and satisfy any judgment that may be passed against it. The court granted the application and made an order directing the defendant/appellant to deposit the sum of N5,000,000.00 with the Chief Registrar of the High Court of Justice Benin City, within 45 days from the date of the order which sum is to be deposited in an interest yielding account with the Union Bank of Nigeria Plc, Akpakpava Street Branch, Benin City, for the said purpose of ensuring the defendant’s appearance to satisfy any judgment that may be passed in the suit. Being dissatisfied with the ruling, the defendant appealed against it on two grounds from which the following two issues were distilled, namely:

(1) Whether the decision contained in the ruling of the trial Judge directing the appellant to deposit the sum of N5,000,000 with the Chief Registrar of the High Court of Justice Benin City, for purposes of ensuring appellant’s appearance to satisfy any judgment that may be passed against it in this suit was properly made under Order 15 rule 1 of the Edo State High Court (Civil Procedure) Rules, 1988.

(2) Whether a defendant’s failure to appear to a proceedings in person makes him an absconding defendant, within the meaning of the provisions of Order 15 rule 1 of the Edo State High Court (Civil Procedure) Rules, 1988, notwithstanding his appearance through counsel.

The respondent adopted the issues formulated by the appellant in its brief of argument.

On 15/4/2002, when the appeal was called for hearing, it was only Mr. Ajumogobia, learned Counsel for the appellant that was present in court. But since parties had filed their briefs, and there was confirmation that hearing notice had been served on the respondent, this court invoked Order 6 rule 9(e) Court of Appeal Rules, 1981 (as amended), to deem the appeal as having been argued on the briefs. Thereafter, learned Counsel adopted the appellant’s brief. In profering arguments on the first issue Mr. Ajumogobia, learned Counsel for the appellant referred to Order 15 rule 1 Edo State High Court (Civil Procedure) Rules, 1988, and stated that it is common ground that the appellant is a U.K. based company, which has since the inception of this suit been appearing in the proceedings by counsel. He also stated that it is not in dispute that the appellant being ordinarily resident in the U.K., has never been within the jurisdiction, neither did it have assets within the jurisdiction, which it could have removed or attempted to remove from the jurisdiction. Ironically however, this was the very basis for the motion for security viz that the appellant was not within the jurisdiction and had no assets within jurisdiction to satisfy a judgment in favour of the respondent. He pointed out that nowhere in the amended pleadings of the parties or in the affidavit in support was it averred or deposed that the appellant had been within jurisdiction and submitted that counsel’s oral submissions cannot amount to evidence of this fact upon which the court could act. Reliance was placed on the case of N.A.B. Ltd. v. Felly Keme Nig. Ltd. (1995) 4 NWLR (Pt. 387) 100.

Continuing his argument, learned counsel referred to the learned trial Judge’s ruling at page 49 lines 9-11 of the records and submitted that the finding is clearly erroneous. He contended that the reliance which the learned trial Judge placed on Oduba v. Houtmangracht (1997) 6 NWLR (Pt. 508) 185, was wrong as he was influenced by irrelevant consideration in his decision to grant the respondent’s application. He therefore, urged the court to hold that the learned trial Judge was in error in making the order of security against the appellant and to set aside the order in its entirety.

On the second issue for consideration, learned counsel submitted that the learned trial Judge attached undue weight to the appellant’s non-personal appearance in court and submitted that its being represented by counsel met the legal requirements and was therefore, sufficient and the issue of power of attorney was a mere surplusage. He therefore, urged us to allow the appeal and set aside the order for security since the lower court exercised its discretion upon a wrong principle which has occasioned miscarriage of Justice and the decision of the learned trial Judge to make the order for security against the appellant was influenced by irrelevant considerations without adverting to all the peculiar facts and circumstances of the case.

Mr. Tunde Olaniyan who prepared the respondent’s brief submitted on the brief that a court can make an order requiring the defendant to furnish security to fulfil any decree that may be passed on him if the plaintiff proves:

(i) That the defendant has shown or exhibited any intention to obstruct or delay execution of any decree that may be passed or;

(ii) That the defendant is about to dispose of his property or any part thereof or is about to remove any such property from the jurisdiction.

The case of BEPCO Ltd. v. NASCO Management Services Ltd. (1993) 7 NWLR (Pt. 305) 369, was cited by learned Counsel in support of the submission. Learned Counsel argued in the brief that the parties entered into a joint venture agreement to provide petroleum support services to companies in the petroleum industry in Nigeria, from which the appellant later pulled out. It was canvassed that the Joint Venture Agreement effectively brought the appellant within the pale of Nigerian courts jurisdiction, since the appellant was doing business in the country at that time and the withdrawal of the appellant from the Joint Venture Agreement occasioned a withdrawal or removal of its assets from jurisdiction. Learned Counsel suggested that the import of a defendant having assets within the jurisdiction is basically to ensure that the plaintiff has something to hold on to within jurisdiction in the event that judgment is given in the plaintiff’s favour. He then submitted that the conditions necessary for the grant of the court’s order were met and the court properly exercised its discretion in allowing the application.

On the issue of the appellant’s absence, learned Counsel contended that the rule which allows a party to be represented by counsel is not absolute as some occasions demand the attendance of the party in person and cited the case of Sanni Kehinde v. Amole Ogunbunmi & Anor. (1968) NMLR 37 as being instructive on the issue. He referred to Aguda: Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria to buttress the point that a party’s absence could be treated as non appearance. He gave the instance that the counsel’s representation does not extend to standing in where judgment is to be executed, moreso where counsel is bound by the specific instructions of the client and is compelled to adhere to it as was done in this case by the donation of the power of attorney which was to appear at the hearing of 27th and 28th of November, 1998 and any subsequent adjournment and terminated on 31/5/98. This learned Counsel submission does not extend to guaranteeing the appellant’s attendance to meet the terms of any judgment that may be passed against it and relied on Adewunmi v. Plastex (1986) 3 NWLR (Pt.32) 767. The fact of the appellant being represented by counsel throughout viewed in relation with other circumstances like the appellant’s self confessed going out of trading, reorganisation, change in name and change of address warranted the granting of the order being appealed against. He said it is the duty of the appellant following Barclays Bank DCO v. Sami Makki (1962) LLR 2, to show that from the affidavit filed by the plaintiff/respondent the order should not be made. And because the appellant failed to convince the court that the order should not be made, the presence of the conditions necessary for the grant of the order and the absence of the defendant at the trial that the court rightly viewed in exercising its discretion to make the order in favour of the respondent. He concluded the brief by urging this court to dismiss the appeal, because the decision of the court on the application was considered and based on the correct principle of law and this has not occasioned a miscarriage of Justice and the appeal in itself is a frivolous abuse of courts process which is only aimed at wasting the time of the court.

Order 15 rule 1 of the Bendel State High Court(Civil Procedure) Rules, 1988 applicable to Edo State provides as follows: