Mobil Producing Nigeria Unlimited & Anor. V. Chief Simeon Monokpo & Anor (2003)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

Two suits were instituted in the Federal High Court, Calabar on June 1, 1998 by two separate sets of plaintiffs against the same defendants. The said defendants are now the appellants. The first suit No. FHC/CA/CS/30/98 claimed special damages of N3,698,524,656.00 and general damages of N301,475,344.00. The plaintiffs therein are now the 1st set of respondents. The second suit No. FHC/CA/CS/31/98 claimed special damages of N938,200,464.00 and general damages of N61,799,536.00. The plaintiffs in that suit are now the 2nd set of respondents. The defendants in the two suits were sued jointly and severally. The two suits have as their cause of action ecological and environmental pollution arising from crude oil spillage.

In both suits, the statements of claim were filed on 22 July, 1998 and the statements of defence of the 1st defendant only were filed on 12 October, 1998 and latter amended and filed on 29 June, 2000. The 2nd defendant had applied on 12 October, 1998 (in both suits) to have its name struck off the suit as a party improperly joined. It claimed in the supporting affidavits to be “a separate legal entity independent” of the 1st defendant. It then further said in para. 4:

“That the 1st defendant is neither in liquidation nor in receivership. In consequence therefore, the 2nd defendant should not be joined as a necessary party to this suit. An attempt to bring them in as a party in this suit is calculated to embarrass them and bring them into ridicule.”

I cannot make any head or tail out of the reasons given for the application. Suffice it to say that the 2nd defendant was not struck off the suits. The two suits were later consolidated on 10 April, 2000 on the oral application of both the counsel for the defendants and the plaintiffs. The plaintiffs led evidence in support of their case in suit No. FHC/CA/CS/30/98.

Evidence in suit No. FHC/CA/CS/31/98 was commenced by the plaintiffs and concluded on 16th June, 2000. The matter was adjourned to 27th, 28th and 30th June, 2000 for defence because Mr. Ajumogobia for the defence said he did not anticipate that the plaintiffs’ case would be closed that day. But on 27th June, Mr. Ajumogobia, learned counsel, filed a motion to amend the statement of defence in suit No. FHC/CA/CS/30/98 on behalf of the 1st defendant. This was granted that same say. The statement of defence in suit No. FHC/CA/CS/31/98 was similarly amended on behalf of the 1st defendant. Mr. Nwosu, learned counsel for the plaintiffs, was given liberty to file a reply.

The first defendant then immediately opened its defence by calling Dr. Godfrey Okon Udoh, estate manager and urban estate surveyor. He was extensively cross-examined and his evidence was concluded. The case could not go on the next day as scheduled because the court was told that Mr. Ajumogobia was appearing at the Court of Appeal that day. It was then adjourned to 30th June. But on 29th June, 2000, Mr. Ajumogobia filed a motion praying the court to dismiss the action as against the second defendant and to strike it off the suit. The affidavit in support was sworn by Patrick A. Osu, a legal practitioner in the firm of Ajumogobia and Okeke. Paras. 3, 4 and 5 of the affidavit read:

“3. That I am informed by Mr. Odein Ajumogobia that neither the plaintiffs pleadings nor any part of the evidence led by or in support of the plaintiffs case contains any allegations of fact against the 2nd defendant which would entitle the plaintiffs to any relief whatsoever against the said 2nd defendant.

4. That I am informed by Mr. Ajumogobia and I verily believe that the plaintiffs in this suit closed their case on June 16,2000.
5. That I verily believe that the only fact purporting to connect the 2nd defendant with this action is the pleading in paragraph 2 of the statement of claim unsupported by evidence that the 2nd defendant is the parent company of the 1st defendant and directs the 1st defendant’s management policies.”

It was in view of this motion filed on behalf of the second defendant that Mr. Nwosu on behalf of the plaintiffs filed what he called a cross-motion. In it, he sought an order to dismiss the second defendant’s motion and to enter final judgment against the second defendant. Mr. Ajumogobia’s argument was that no case had been made against the second defendant either from the statement of claim or from the evidence. His only concession was the averment that the second defendant is the parent body of the first defendant. It was not also disputed that the claim was for special damages of N3,698,524,656.00 and general damages of N301,475,344, making a total of N4 billion. Mr. Nwosu’s contention was that the two defendants were sued jointly and severally and that in the statements of claim allegations were averred against the defendants accordingly. He submitted that throughout, up to the close of the plaintiffs’ case, no statement of defence was filed on behalf of the second defendant. He therefore argued that the plaintiffs conducted their-case on the assumption that the second defendant having in the circumstances admitted the facts pleaded, the plaintiffs had no obligation to lead evidence against it. He contended further that now that the second defendant had submitted at the close of the plaintiffs’ case that no case had been made against it, the court would have to come to judgment on the merits of the plaintiffs’ case. Mr. Nwosu then urged the court to give judgment for the plaintiffs against the second defendant upon the fact that there had been no evidence led, and indeed no statement of defence filed, by it in court.

Mr. Ajumogobia at that stage applied for an adjournment “to reply to the submissions of my learned friend on points of law as a rejoinder to issues of law raised by my learned friend.” Mr. Nwosu opposed the adjournment sought. But Mr. Ajumogobia insisted, as recorded, by saying: “My learned friend has raised some issues of law which calls (sic) for rejoinder. I am prepared to take a very short adjournment to Monday, 3rd of July, 2000.” The learned trial Judge eventually granted an adjournment to 7 July, 2000 “for the defendants’ counsel to rejoin on points of law thereafter the court will rule on the motions for dismissal and judgment.”

Mr. Ajumogobia no longer pursued the course of making a reply on points of law for which he had sought and was granted an adjournment. Instead, for the first time, he filed a motion on 6 July, 2000 praying for an order extending the time within which the second defendant shall be at liberty to file a memorandum of appearance and statement of defence, and an order deeming as properly filed the said processes filed on 5 July, 2000. He seemed to have taken a different course from the proceedings of 30 June, 2000 in regard to the submission by him to have the case dismissed on the ground that no case had been made against the second defendant. He completely backed off from the circumstances leading to the adjournment granted at his instance to 7 July, 2000 for him “to make his rejoinder” to Mr. Nwosu’s reply. Yet it was deposed in the affidavit in support of the latest motion that the affidavit was made “in good faith in response to the plaintiffs’ notice of cross motion filed and served on the 30th day of June, 2000.”

Mr. Nwosu opposed the hearing of the motion filed by the plaintiffs’ counsel for extension of time to put in the second defendant’s statement of defence. The learned trial Judge held the view that the said motion Mr. Ajumogobia brought at the stage he did to wish to file a statement of defence for the second defendant was an abuse of court process and was intended to overreach the plaintiffs. He said inter alia:

“I have in the main considered the implication of motion for extension of time to file a statement of defence for the 2nd defendant in the circumstances of this case where the plaintiffs have led evidence, tendered exhibits, and closed their case for the plaintiffs and the (1st) defendant had opened its case (and) called a witness. In my considered and humble opinion, the plaintiffs conducted and concluded their case on the assumption that the 2nd defendant filed no pleadings and did not join issues with the plaintiffs. It follows therefore that allowing such filing of pleadings at this stage will amount to over reaching the plaintiffs who had concluded their case as they will not have the opportunity of leading evidence again on the issues to be joined. That is the more reason I agree with Mr. Amego of counsel for the plaintiffs that what is being asked for is a final judgment and not judgment in default…

I hold that the application of the 2nd defendant to move a motion for extension of time within which to file a defence for the 2nd defendant without first rejoining on points of law in conclusion ocourt motions moved on the 30/6/2000 and no application to stay same will amount to abuse of Court process and aimed at overreaching,”