African Reinsurance Corporation V.j.d.p. Construction (Nig.) Ltd (2011)

LAWGLOBAL HUB Lead Judgment Report

A. AKINTAN, J.S.C

The present respondent, as plaintiff, instituted this action at Lagos High Court as suit No. LD/2342/2000 against the present appellant as the defendant. The plaintiff’s claim is as follows:

“(1) The sum of US $2,755,618.85 being the sum due and payable to the plaintiff on a building contract between the parties.

(2) Interest on the said sum of US $2,755,618.85 at the rate of 12% per annum from the 22nd June, 2000 until judgment and thereafter at the same rate until total liquidation.

(3) The cost of this action.” The writ of summons was filed along with the statement of claim. When the appellant was served, it entered appearance under protest and then filed a notice of preliminary objection in which it claimed that the trial High Court lacked jurisdiction to entertain the claim. The reason for the objection is given as follows:

“(1) The appellant by virtue of the Diplomatic Immunities and Privileges (African Reinsurance Corporation) Order, 1985 has diplomatic immunity.” The matter then went for hearing before Shitta-Bey, J. After hearing the parties on the objection, he delivered the court’s ruling on 26/10/2000 in which the objection was overruled. The appellant was dissatisfied with the ruling and an appeal filed against the ruling at the court below was dismissed. In the lead judgment of the court below written by Oguntade, JCA (as he then was) to which Galadima and Chukwuma-Eneh, JJCA agreed, the learned Justice said thus in the concluding portion of the judgment:

“The answer I return to appellant’s questions for determination is that I agree with the decision of the Supreme Court in the Fantaye’s case that a waiver by a corporate body, like the appellant, of its diplomatic immunity must be supported by a resolution of its board of directors; and the waiver can only be effectively raised before the Court at the time when the body is brought before the court. I however, do not think that such claim to diplomatic immunity was available to the appellant in the circumstances of this case. In the final conclusion, this appeal fails and is dismissed with N7,500 costs in favour of the respondent.”

The appellant was again not satisfied with the judgment and has therefore appealed against it to this court. The respondent was also not satisfied with some portions of the judgment. A cross-appeal was also filed. The parties filed their respective briefs of argument in this Court. The appellant formulated the following two issues as arising for determination in the appeal:

“1. Having:

(i) ruled after formal objection and argument that the two issues formulated by the plaintiff / respondent did not arise for determination in the appeal

(ii) ruled further that it was only the three issues formulated by the defendant/appellant which arose for determination and

(iii) resolved the said three issues in favour of the defendant/appellant was the Court of Appeal entitled to turn round thereafter to consider the plaintiff/respondent’s rejected two issues and resolve them in the plaintiff/respondent’s favour and then dismiss the appellant’s appeal

2. Having resolved all of the three issues arising before it for determination, in favour of the appellant, was the Court of Appeal entitled to dismiss the appellant’s appeal on the ground that it would be immoral and unjust to allow it.”

The respondent, on the other hand, formulated two issues as arising for determination in the appeal and three issues as arising for determination in the cross-appeal. The two issues formulated by the respondent in respect of the appeal are as follows:

“1. Whether or not the additional grounds of appeal filed and argued herein, without the leave of court specifically prayed for and granted to appeal on a consent judgment, are competent in the circumstances herein.