Coscharis Motors Ltd V. Capital Oil and Gas Ltd & Ors (2016)

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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. 

This appeal arose from the Ruling of the Federal High Court, coram ABANG, J., delivered on the 28th of January, 2013.

The brief facts of this case as indicated by the Appellant is that, by a writ of summons dated and filed on the 30th of October, 2012, the 1st and 2nd Respondents as Plaintiffs claimed various reliefs against the Appellant and the 3rd Respondent. Along with the originating processes, the Respondent also filed a motion on notice for interlocutory injunction which was heard and ruled upon by the trial Court on 12th November, 2012 wherein an order of interlocutory injunction restraining the Appellant and the 3rd Respondent from interfering with the assets of the 1st and 2nd Respondents, pending the determination of the suit.

The Respondent subsequently filed two motions on the 15th November, 2012, praying the lower Court inter alia to dismiss the entire suit for want of jurisdiction. On 21st January, 2013, when the Appellant’s applications came up for hearing, the Respondents’ counsel applied for a short adjournment to enable him

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to respond to the applications of the Appellant in the suit. On the adjourned date of 25th January, 2013, the Appellant moved its motion challenging the jurisdiction of the lower Court. While relying, the 1st and 2nd Respondents’ counsel sought to tender from the bar an order of the English Court made on 23rd January, 2013 in Suit No. 2012, Folio 1300 Access Bank Plc v. Rofos Navigation Ltd & 5 Ors before submitting viva voce that the Appellant and the 3rd Respondent were in breach of the order of the lower Court made on 12th, January, 2012. He thereafter applied for an order restraining the Appellant from enforcing the order made by the English Court. This was vehemently opposed by the Appellant and the 3rd Respondent. The trial judge adjourned to 28th January, 2013 to determine the admissibility of the photocopy of the order of the English Court sought to be tendered. On the adjourned date, the learned trial judge in a considered Ruling admitted the copy of the order of the English Court and made other orders, the basis of which the Appellant has filed an appeal against the Ruling of the lower Court vide a Notice of Appeal dated 30th January, 2013 and

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filed on 31st January, 2013 on seven grounds. However, the Appellant abandoned ground 4 of appeal as contained in the Notice of Appeal at page 5 of the Appellant’s brief.

Before this Court, parties complied with the Rules of the Court by filing and exchanging briefs. Appellant’s brief prepared by Osita Mbamalu (LLM) of Magna Konsults, Ositadinma chambers is dated 5th June, 2013 and filed 6th June, 2013 but deemed properly filed 25th June, 2015. A Reply brief settled by Osita Mbamalu, Kene Udemezue, C. O. Onumaegbu, J. C. Umeh dated 15th March, 2016 and filed 17th March, 2016 but deemed 21st April, 2016 was also filed.
1st and 2nd Respondents’ brief is dated and filed on 11th February, 2016 but deemed 21st April, 2016. Same is settled by Olabode Olanipekun, Bolarinwa Awujoola, Michael Akinleye of Wole Olanipekun & Co. No brief was filed by the 3rd Respondent.
Meanwhile, 1st and 2nd Respondents filed a Notice of preliminary objection dated 11th February, 2016 urging this Court to strike out and/or dismiss the Appellant’s appeal. Arguments in respect thereof have been incorporated in the Respondents’ brief. Nonetheless, the grounds of the said

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objection are:
i. Particular (i) of Ground 1 is argumentative.
ii. Particular (iii) of Ground 1 is a misrepresentation of the ruling of the lower Court.
iii. Further to (ii) above, particular (iii) of Ground 1 does not arise from the ruling of the lower Court.
iv. Further to (ii) and (iii) above, Ground 1 is a misrepresentation of the decision of the lower Court.
v. Further to (i) – (iv) supra, Issue 1 distilled from Grounds 1 and 6 is incompetent.
vi. Ground 2 is a misrepresentation of the decision of the lower Court.
vii. Further to (vi) above, Ground 2 does not arise from the decision of the trial Court made on 28/1/13.
viii. Ground 3 is a misrepresentation of the ruling of the lower Court.
ix. Further to (viii) above, Ground 3 does not arise from the judgment of the lower Court.
x. Particular (vii) of Ground 3 is argumentative.
xi. Particular (iv) of Ground 5 is argumentative.
xii. Ground 5 does not arise from the judgment of the lower Court.
xiii. Particular (i) of Ground 1 adopted in particular (i) of Ground 6 is argumentative.
xiv. Particular (iii) of Ground 1 adopted in particular

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(i) of ground 6 is a misrepresentation of the lower Court’s ruling and it does not arise from the said ruling.
xv. Further to (xiv) above, Ground 6 is incompetent.
xvi. Particulars (i), (iii) and (iv) of Ground 7 are argumentative.
xvii. Further to (xvi) above, Ground 7 is argumentative.
xviii. Further to (i) – (xvii), the appellant’s appeal is incompetent.

Arguing the preliminary objection, 1st and 2nd Respondents, counsel submitted that ground 1, particular (i) thereto, contains arguments and legal submissions contrary to the clear imperatives of Order 6 Rule 2(3) of the Court of Appeal Rules, 2011 which completely proscribes a ground of appeal from being argumentative, hence provision is made for filing of briefs of arguments. Counsel submitted that ground 1 is a misrepresentation of the ruling of the lower Court as particular (iii) which forms the fulcrum of the ground is an unfair attack on the ruling of the lower Court and did not arise from same. He relied on KHALIL v. YAR’ADUA (2003) 16 NWLR (pt. 842) 46 at 478 – 479; CBN v. OKOJIE (2002) 8 NWLR (pt. 768) 48 at 61; LAAH v. OPALUWA (2004) 9 NWLR (pt. 879) 558 at 566. He referred