East Horizon Gas Co. Ltd & Ors. V. His Highness Etubom Essien E. Efiok & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the ruling of Anjor, J. delivered on 14th July, 2009 in suit No. HC/123/2009 wherein the preliminary objection raised by the appellants herein was dismissed. The brief facts of the instant appeal is as follows: The respondents herein were the claimants (plaintiffs) in suit No.HC/123/2009 which was commenced by means of originating summons at the High Court of Cross River State, holden at Calabar. The action was instituted on 7th April, 2009. The appellants were the defendants before the trial court.

At the trial court the respondents sought the following reliefs in the originating summons. They are:

“1. An order of specific performance of the terms of the MEMORANDUM OF UNDERSTANDING executed between the DEFENDANTS and Cross River State Government and dated 20th October, 2010.

2. An order compelling the Defendants to forward the list of all sub-contracts already awarded or yet to be awarded as it affects any subject touching on the construction of the UNICEM GAS PIPELINE project to the claimant for the purpose of awarding all such sub-contracts to the Claimants.
3. An order compelling the Defendants to forward to the claimants a list of required, unskilled labour personnel needed or already employed from 20th October, 2008 to when the construction of the project shall be completed for the purpose of forwarding their indigenes for employment.
4. An order compelling the Defendant to award all subcontracts i.e every contract ancillary to laying of the gas-pipeline to the Claimants
5. General damages of N5,000,000.00 only.”

And they also claimed the following in the alternative:

“1. Payment of the sum of N200,000,000.00 only as damages for breach of the terms of the MEMORANDUM OF UNDERSTANDING.

2. General damages of 5,000,000.00 only.”

They further sought for the determination of the following question.

“Whether the Defendants are in breach of the express provisions of the Memorandum of Understanding of 20th October, 2009, particularly Articles 4:1.1 and 4:1.2 thereof.”

The respondents’ affidavit of 38 paragraphs filed in support of the originating summons fully explains the facts and circumstances relied upon by the respondents. The appellants filed notices of preliminary objection on 29th April, 2009 and 7th May, 2009, challenging the competence of the suit on the grounds that the respondents have no locus standi to institute the action and that the 2nd and 3rd Appellant so being agents of a disclosed principal “should not have been sued”. The lower court took arguments on the written addresses filed by the respective learned counsel for the parties and delivered its ruling thereon on the said 14th July, 2009. The learned trial judge held that the objection was, “grossly lacking in merit” and accordingly dismissed it. That ruling of the lower court was the genesis of the instant appeal, which the appellants filed on 20th July, 2009. The notice of appeal filed by the appellants contained four grounds of appeal and gave particulars of the grounds. Howbeit, at the hearing of this appeal on 26th October, 2010, the learned counsel for the appellants sought leave of this Court to abandon grounds two and three of their grounds of appeal. The said grounds of appeal are hereby struck out, having been withdrawn and or abandoned.

Before this Court and on 19th October, 2009 to be precise, the respondents filed a notice of preliminary objection to the appeal on the ground that it is incompetent. The contentions of the respondents as expressed in the two issues raised for determination of the objection are to the effect, that the ruling of the lower court was not a final decision and the grounds of appeal filed by the appellants involve questions of mixed law and facts.

These being the case as contended by the learned counsel for the respondents, the prior leave of either the lower court or this Court was required, but the appellants failed or refused to seek and obtain the required leave. The learned respondents’ counsel urged us to strike out the appeal. The learned counsel for the appellants responded to this objection in their reply brief which was filed on 12th May, 2010. He urged therein, that the objection be discountenanced for the reason, that the grounds of appeal raised the issue of locus standi which is an issue of law. He submitted further that leave was not required and that the appeal is competent.

It is the law as established by practice that whenever a preliminary objection is properly raised, attacking the competence of an appeal, it should be considered and determined or resolved first by the appellate court at that preliminary or initial stage, before delving into the merits of the appeal proper. see N. N. B. Plc. vs Garrick (2006) 4 NWLR (pt. 969) 69.

For ease of reference and clarity of exposition, the two remaining grounds of appeal, are reproduced below with their particulars:

“GROUND 1. The learned trial judge erred in law when he held that the plaintiffs (now Respondents) have locus standi to bring the suit.