IPC (Nigeria) Limited V. Nigerian National Petroleum Corporation (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of Auta J. (as he then was) of the Federal High Court in Suit No FHC/L/CS/1060/2004 to re-hear the Appellant’s preliminary objection de novo following the administrative transfer of the case file to his Lordship by the then Chief Judge of the Court.

FACTS:

By an Originating Motion dated 15/11/04, the Respondent sought inter alia for an Order setting aside an Arbitral Award made on 28/10/04 in favour of the Appellant. Pursuant to leave of the Lower Court, the Respondent amended its Originating Motion on 4/2/05 and further amended same on 18/3/05.

The Appellant subsequently filed a preliminary objection dated 25/5/05 challenging the Further Amended Originating Motion. The said Preliminary Objection was thereafter argued before G.C. Okeke J and ruling reserved for the 12th of December, 2005. The matter took a different turn when on 29/11/05, the Respondent herein filed an application seeking the following:-

1. “An Order of this Honourable Court transferring this case to the Honourable Chief Judge for re-assignment to another judge of the Federal High Court for hearing;
2. An Order suspending the delivery of the ruling on the Respondent’s preliminary objection, reserved for 12th December, 2005 pending the re-assignment of this matter and the re-hearing of the objection before another judge of this Honourable Court; and
3. An Order of this Honourable Court adjourning further proceedings in this suit sine die pending the transfer of the suit before another judge of the Federal High Court.”

The Appellant in opposition to the application filed a counter affidavit.

On 12/12/05 when the matter came up, G. C. Okeke J. decided that, he would transfer the case back to the Chief Judge for reassignment of the file to another Judge for determination of the Respondent’s application for re-assignment since the said application touched on the integrity of his court and he could not be a judge in his own case.

Okeke J stated further that the ruling in respect of the Appellant’s Preliminary Objection was ready and that he would deliver the said Ruling if his court was exonerated. He stated that he was returning the case-file to the Chief Judge “for necessary action”.

On 16/12/05, the Chief Judge of the Federal High Court transferred the case file to Auta J with the endorsement “re-assigned to Auta J”. On 20/2/06 when the matter came up before Auta J, despite the contention of Counsel to the Appellant that the case-file was transferred only for the purpose of hearing the Respondent’s motion seeking the transfer of the suit, Auta J. was of the view that the Chief Judge transferred the whole suit to be heard de novo and thereafter adjourned the matter for hearing of the Appellant’s Preliminary Objection challenging the Respondent’s Further Amended Originating Motion.

The Appellant, dissatisfied with the said decision of Auta J. appealed to this court by a Notice of Appeal with 4 grounds of appeal; which Notice was with the leave of the Court subsequently amended on 16th February, 2015. From the 4 grounds of appeal, Learned Counsel for the Appellant distilled 3 Issues for determination as follows:

1. “Whether the Lower Court was right in his decision that the Chief Judge of the Federal High Court transferred the whole case from the Court of the Honourable Justice G. C. Okeke to be heard de novo and consequently that he would re-hear the Appellant’s Preliminary Objection.
2. Whether the Lower Court was right to have ignored/suspended and/or put in abeyance the already prepared ruling of Honourable Justice Mrs.) G. C. Okeke in respect of the Appellant’s preliminary objection, and thereby effectively (and/or sub silentio) granted the Respondent’s application dated the 29th of November, 2005.
3. Whether the Lower Court ought not to have heard, and dismissed the Respondent’s motion dated the 29th of November, 2005.”

The Respondent on its own part identified the following 3 issues for determination:-

1. “Whether the Honourable Chief Judge of the Federal High Court transferred the case file to Hon. Justice I.N. Auta’s Court for the purpose of hearing the Respondent’s motion dated 29th November, 2005 or for hearing of the substantive suit?
2. Whether Hon. Justice I.N. Auta’s decision to hear the whole suit de novo was right in the circumstances and whether same amounts to determining sub silentio the Respondent’s motion dated 29th November, 2005?
3. Whether the Respondent’s application dated 29th November, 2005 should have been dismissed by Hon. Justice Auta?

The Respondent had however filed a Notice of Preliminary Objection to the competence of this Appeal which he argued in his brief of argument. The Preliminary Objection will be taken first.

PRELIMINARY OBJECTION

The grounds of the Preliminary Objection are as follows: