Mobil Producing Nigeria Unlimited V. Suffolk Petroleum Services Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A. (Delivering the Leading Judgment)

The Respondent in this appeal as Plaintiff (Claimant) in the lower Court commenced proceedings in that court claiming some declaratory reliefs, and injunctions against the appellants as defendants in respect of a contract between the parties. The reliefs sought at the lower court are clearly set out in the Writ of Summons at pages 3 – 4 of the Record of Appeal and repeated in paragraph 192 of the statement of claim at pages 63 – 64. The Respondent also filed an Exparte motion for interim injunction.

When the Exparte motion for interim injunction came up before the lower court on the 25/6/11, the court after granting leave for service of the defendant outside jurisdiction, ordered the defendant to appear before it on 1/11/11 to show cause why an order of interim injunction should not be made. Upon service on it of the process of court including the order to show cause aforesaid, the appellant (defendant in the court below) filed an application for stay of the proceedings of the lower court pending an arbitration between the parties pursuant to the terms of their contract. Both the motion for stay of proceedings and the one for interim injunction came up before the lower court on 1/11/11 and that court granted the application for interim injunction and adjourned the motion for stay of proceedings to 22/11/11 for hearing.

The present appeal is against that ruling. Altogether Four grounds of appeal were filed by the Appellant. The Complaints therein, in summary being lack of jurisdiction in the lower court to entertain the matter before it and error in the lower court in granting the application for interim injunction without first hearing the application for stay of proceedings. The appellant’s counsel in her brief at page 5 thereof formulated three (3) issues from the grounds of appeal thus:

“1. Whether the Federal High Court, has the jurisdiction to entertain the Respondent’s matter and to make the order of interim injunction pertaining to simple contracts?

2. Whether the lower court was right in assuming jurisdiction and making the interim order for injunction when it has not considered the Appellant’s application for stay of further proceedings pending arbitration?
3. Whether failure to hear the Application for stay of proceedings pending arbitration before making the order of interim injunction breached the Appellant’s right to fair hearing?”

On his part learned counsel for the respondent identified Four (4) issues as determinable from the grounds of appeal. They were set out at pages 6 – 7 of his brief as follows:

“1. Whether or not in the peculiar circumstances of this case where the MIPS Contract No. A2246515 for the Major Integrity Pipeline Projects EPCM-1 Offshore Pipeline and Platform Tie-Ins, as the name implies, relates to installation of Offshore Pipelines and Oilfield Platforms and involves the use of several marine vessels, work Barges and Pipelay Barges, the Federal High Court does not have the jurisdiction to hear and determine the case?

2. Whether or not the mere presence of an arbitration clause in a contract such as the MIPS Contract No. A2246515 robs the Federal High Court of its Jurisdiction to hear and determine the case?
3. Whether or not in the peculiar circumstances of this case, the court below was right in granting the Order of Interim Injunction meant to keep parties in status quo pending the hearing and determination of the pending interlocutory applications especially the Appellant’s motion for stay of proceedings pending reference of the dispute between the parties to arbitration?
4. Whether or not, having given the Appellant the opportunity to be heard in the peculiar circumstances of what transpired in this case before the lower court on 1st November, 2011, an opportunity which the Appellant failed to utilize, the same Appellant can turn around to complain of denial of its right to fair hearing?”

In my view the issues set out in the respondent’s brief are virtually similar to those set out in the appellant’s brief and can conveniently be consumed in them. I, therefore propose to deal with this appeal on the basis of the issues set out in the appellant’s brief which themselves can be reduced into two namely:

(1) Whether the lower court has jurisdiction to entertain the action before it.

(2) If it has jurisdiction, whether it was right for it to consider the application for interim injunction without first disposing of the application for stay of proceedings.

This last issue covers issue Nos. 2 and 3 raised by the appellant.

On the first issue above, learned counsel for the appellant Mrs. Essien SAN, submitted, in summary, that the jurisdiction of a court to entertain a matter was so fundamental that it could be raised at any time and that in consideration of the issue of jurisdiction it is the plaintiff’s claim that was relevant. She referred to section 251(1) of the 1999 constitution and after pitching it against the background of the claims and statement of claim, contended that the claims were founded in simple contract in respect of which the Federal High Court had no jurisdiction. She argued that on the authority of SPDC NIG. LTD V. SIRPI ALUSTEEL CONSTRUCTION LTD (2007) 1 NWLR (PT. 1067) 128 at 150, the fact that a party was an oil Mining Company did not mean that actions in respect of commercial contracts was to be entertained at the Federal High Court.

In his reply on this issue, learned counsel for the respondent, Mr. Wanogho, in summary contended that by virtue of section 251(1) of the 1999 Constitution and on a long line of authorities on the point, as set out in his brief, the action fell squarely within the jurisdiction of the lower court as the State High Court had no such jurisdiction.

The subject matter of the action which gave rise to the claims was set out in paragraph 9 of the statement of claim of Extreme prolixity covering 192 paragraphs. That paragraph reads as follows: