British American Tobacco Plc V. Attorney-general Of Ogun State & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment)

The appeal herein is against the ruling of the Ogun State High Court, Abeokuta delivered on 20th May, 2010 by Hon. Justice O, O. Olopade in respect of notices of preliminary objection filed by the appellant (as 3rd defendant) and 2nd, 3rd, and 4th respondents as 1st, 2nd and 4th defendants in Suit No. AB/61/2008

A synopsis of the facts giving rise to this appeal is hereby made as follows: The 1st respondent as plaintiff by a concurrent writ of summons and statement of claim dated and filed 26th February, 2008 instituted an action in the lower court against the appellant the 2nd, 3rd, 4th respondents and Phillip Morris International as defendants.

The plaintiff’s claim against the defendants included inter alia declaratory and injunctive reliefs, special and general damages in billions of Naira for the manufacture and marketing of tobacco related products which posed health challenges to a sizeable population of the citizens who smoke cigarettes in Ogun State. The court below by a motion ex parte dated 23rd April, 2008 granted the 1st respondent leave to issue and serve the concurrent writ of summon and the statement of claim on the appellant and other defendants now 2nd, 3rd and 4th respondents outside jurisdiction.

Upon being served the originating processes, the appellant entered a conditional appearance for the purpose of challenging the jurisdiction of the court. By a notice of preliminary objection dated 6th April, 2009, the appellant challenged the service of the originating processes upon it on the basis that leave to serve the originating processes outside the court’s jurisdiction ought not to have been granted. The appellant sought for an order setting aside the service of the writ of summons and statement of claim on it and striking out the suit against the appellant. The appellant and the 1st respondent filed written submissions for and against the notice of preliminary objection and same adopted in court on 14th December, 2009.

By a ruling delivered on 20th May, 2010 the lower court dismissed the appellant’s notice of preliminary objection in its entirety.

Aggrieved by the aforementioned ruling, the appellant challenged same vide a notice of appeal dated and filed 3rd June, 2010. The notice of appeal is anchored upon five grounds of appeal. In compliance with the Rules of court, the appellant and the 1st respondent filed and exchanged their respective briefs of argument. The appellant’s brief is dated 3rd November, 2010 and filed on 4th November, 2010 but deemed properly filed and served on 26th January, 2011. The appellants reply brief is dated 11th June, 2012 and filed on 13th June, 2012 though deemed properly filed and served on 20th December, 2012. The 1st respondent’s brief dated 5th May, 2011 and filed on 9th May, 2011 and deemed properly filed and served on 8th May, 2011.

Mr. Fred Onuobia leading Fidelis Adewole Esq., for the appellant, adopted the appellant’s brief and the reply brief in urging the court to allow the appeal and set aside the ruling of the lower court. Prof. Yemi Osinbajo, SAN leading Mr. Babatunde Irukera, Mr. Dapo Akinosun, Mrs. V.O.M. Alonge, Miss Funmilola Mesaiyete, Mr. Bashir Ramoni and Mr. Seun Lawal appeared for the 1st respondent. Mr. Babatunde Irukera argued the appeal on behalf of the 1st respondent by adopting the 1st respondents brief and urging the Court to dismiss the appeal.

The Appellant formulated five issues for determination on pages 6 and 7 of the appellant’s brief of argument as follows:

“1. Was the court below correct not to consider or determine the issue submitted to it by the Appellant in its Notice of Preliminary Objection with respect to the 1st Respondent’s failure to disclose material facts on its Ex Parte Motion?

(This Issue is distilled from Ground One of the Notice of Appeal.)

2. Was the Court below correct to hold that the Appellant’s objection to the Court granting leave to serve the Appellant out of the jurisdiction involved the argument that no cause of action had been disclosed against the Appellant? (This issue is distilled from Ground Two of the Notice of Appeal.)
3. Was the Court below correct to hold that the Court’s order granting leave to serve the Appellant out of the jurisdiction could not be set aside unless the Appellant were to show that the Court below exercised its discretion arbitrarily or illegally, gave weight to irrelevant matters, omitted to take cognizance of relevant matters, and/or exercised its discretion on wrong on inadequate materials? (The Issue is distilled from Ground Three of the Notice of Appeal.)
4. Was the Court below correct not to consider the materials put forward by the Appellant in support of its Notice of Preliminary Objection when considering whether Order 12 Rule 13(6) or (7) and Order 12 Rule 15 of the High Court Rules were satisfied? (This issue is distilled from Ground Four of the Notice of Appeal.)
5. Was the Court below correct to reject the Appellant’s argument that the 1st Respondent had failed to demonstrate a “good arguable case” that Order 12 Rule 13(6) or (7) was satisfied on the basis that this would require the Court to consider whether the 1st Respondent’s claims would succeed and thus delve into the substantive issues in the case?

(This Issue is distilled from Ground Five of the Notice of Appeal.)”

The 1st respondent also, nominated five issues for determination, on pages 6 and 7 of the 1st respondent’s brief of argument, namely:

“i. Whether the Trial Court considered and determined the Appellant’s Objection on the ground of failure to disclose material facts on the 1st Respondent’s Ex parte Motion?