Baynan (Nig) Ltd. V. Gerald Onwuekweikpe (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of S.E. Charles Granvile, sitting in High Court of Justice, Port Harcourt in suit NO. PHC/1304/99 delivered on 11th December 2002.

At the lower court, the plaintiff but now to be referred to as responded, entered into a Partnership Agreement with the defendant but now appellant for contract job. After the completion of the contract, the parties failed in sharing of the proceeds which was to be paid by the Shell Petroleum Development Dev. Coy (Nig) Ltd. Having failed to share the proceeds, the respondent filed by Writ of Summons Claiming five reliefs in the High Court of Justice, Rivers State, Port Harcourt Division. The reliefs are as follows

(a) A declaration of this Honourable Court that the Partnership agreement executed on the 11th January 1997 is binding on the Plaintiff and the 1st Defendant as regards contract jobs contained in clause 15 Partnership Agreement viz, Loading core date into CBASE SCIW SPDC- W, contract No W-0180, Backloding of Historical drilling and completion well data into ERIDORIS and WICON, WEME SPDC-E, Contract No. E-02497 and geological and petrophysical data (GEODE) cleanup PEME SPDC-E. Tender No. E-02609.

(b) A declaration of this Honourable Court that the plaintiff is entitled to be paid 40% of the Net Profit derivable as contained in clause 9 of the Partnership Agreement executed on the 11th January, 1997 between the Plaintiff and the 1st Defendant in this suit.

(c) An order of this Honourable court directing the 1st Defendant to render an account of all monies or payments collected or received from the 2nd Defendant by virtue of the partnership agreement executed between the 1st Defendant and plaintiff in respect of the following contracts titles: Loading core data into CBASE, SCIW, SPDC-W, Contract No. W-0180, Backloding of Historical drilling and completion well data into EPIDORIS and WILCON, WEME SPDC-E, Contract No. 02497 and geological and petrophysical data (GEODE) cleanup PEME SPDC-E. Tender No. E-02609.

(d) An order for payment by the 1st defendant to the Plaintiff the sum of 40% of the Net profit by virtue of the Partnership agreement executed between the 1st defendant and the Plaintiff in respect of contracts titles mentioned in (c) above.

(e) An order of injunction restraining the 2nd Defendant, its agents, and/or servants from paying to the 1st Defendant, its agents, and/or servant or howsoever described any further sum in respect of the contract titles mentioned in (c) above.

The respondent then filed on 4th June, 2001, a motion on notice for:

“An ORDER of this honorable Court making the Arbitration Award dated 1st June, 2001 and registered at the High Court Registry the same date as the Final Judgment of this Court.”

The appellant on being served with the motion, also on 12th July, 2001, filed a Notice of Preliminary objection to set aside the arbitral award. On 11th December 2002 trial judge heard the parties motions though the appellant was conspicuously absent in the court, and therefore struck out the appellants motion papers, and then heard the respondent motion and granted the reliefs stated above, in other words, the trial court delivered its decision on 11th December 2002 per Justices E. Charles – Granville (pages 42 – 44) of the record. The relevant findings and reasons or decisions of the trial court are, contained on pages 42 – 43 as follows:-

“Mr. Ogochukwu Mbamah counsel for the Defendants is not in court. He has also not written to this court to explain his absence despite the several adjournments which this case has suffered at his instance.

Mr. Dan Magbo for the Plaintiffs applies that the application for setting aside the award made in favour of the Plaintiff on 01/06/2001 be struck out says there had been not less that four (4) adjournments at the instance of the Defendants. They do not seem to have any interest in moving their application. Prays the court to strike out this application.

COURT: Application for striking out the Defendants would have been entertained a long time ago, but for the court which had adjourned the matter to enable the Defence Counsel to appear to move his motion.