Ikoli Ventures Limited & Ors. V. Shell Petroleum Development Company Of Nigeria Limited (2008)

LawGlobal-Hub Lead Judgment Report

GARBA, J.C.A.

This appeal is from a ruling delivered by the Federal High Court sitting at Port Harcourt on the 19th of November, 2003 in suit No. FHC/PH/141/98. The ruling was in a motion filed by the respondent as defendant for enlargement of time within which to file the statement of defence in that case. In paragraph 2 (a) (b) & (c) of the motion at pages 18-19 at the bottom of the record of appeal, it was averred as follows: –

“2. (a) “That on the 15th of December, 1998, this honourable court ordered the plaintiff to file its statement of claim within 30 days from the said date, and the defendant to file its statement of defence within 45 days from the date of such service.

(b) That the time within which the plaintiff were to have filed their statement of claim expired on the 16th of January 1999.

(c) That rather than comply with the order of court, the plaintiffs filed their statement of claim on the 17th of August 1999, about 7 months after the expiration of the time ordered by the court and without an application for extension of time within which to file same.”

No counter affidavit was filed for or by the appellants to challenge the above depositions and on the 19th of November, 2003 when the motion was orally moved in court by learned counsel for the respondent, one T. Musa, Esq. appeared for the appellants. He did not oppose the motion but merely asked for N8,000.00 costs. In its ruling, the Federal High Court (hereinafter lower court) after finding that the above averments of the respondent were not controverted by the appellants, ruled, inter alia thus: –

“Since there is no application by the plaintiff for the leave in respect of the statement of claim filed, I hold there is none before the court and the plaintiff should regularize his pleadings. In effect the present application is premature and not due for consideration.”

The appellants felt aggrieved by the above ruling and so filed a notice of appeal containing two (2) grounds against same. It is expedient to set out the grounds in details. They are: –

i. The Learned trial Judge lacked jurisdiction to hold that there was no proper statement of claim before the court.

Particulars of error

a. There was no application before the court challenging the validity of the statement of claim.

b. The Learned trial Judge did not hear the plaintiffs before holding that the statement of claim was improper.

ii. The learned trial Judge erred in law in holding that the statement of claim was vitiated by the mere fact that as the affidavit evidence of the defendant showed the plaintiffs’ statement of claim was filed out of time, a decision which ran contrary to the judgment of the Supreme Court in United Bank For Africa Ltd v. Nwora (1978) 2 LRN 14 at 153; (1978) 11-12 SC 1.

Particulars of error