Rockmass Nigeria Limited V. Nigerian Customs Services & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Ruling of the Federal High Court delivered by Honourable Justice D. D. Abutu dated 25th February, 2005 in Suit No. FHC/L/CS/649/2002 wherein the Appellant’s motion on notice dated 15th February, 2005 was struck out.

Dissatisfied with the decision the Appellant appealed to this Court by filing a 1st Amended Notice of Appeal containing three grounds of Appeal. (See pages 120-122 of the 2nd additional Record of Appeal) from the grounds of Appeal, the Appellant in its brief of argument dated and filed on 25th July, 2008 formulated three issues for determination viz:-

(a) whether the trial Court was right to have declined to entertain the Appellant/Applicant’s motion dated 15/2/05 for stay of the Court’s ruling scheduled for 24/2/05 on the 2nd Defendant/Respondent’s motion of 26/4/04 pending the hearing and determination of Appellant/Applicant’s motion of 18/1/05 to regularise the Appellant/Applicant’s claim in the light of the Supreme Court decision in Mobil Producing (Nigeria) Unlimited v. Monokpo (2003) 18 NWLR (Pt.852) @ p.346.

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(b) Whether the trial Court was right to uphold the 2nd Defendant/Respondent’s counsel’s objection based on a decision that had been overruled by the Supreme Court and upon which the Appellant/Applicant’s motion dated 15/2/05 was held to be an abuse of process.

(c) Whether the plaintiff/Respondent was denied opportunity of fair hearing in respect of it’s motion dated 18/1/05 seeking to amend its statement of claim.

The 1st Respondent in its brief of argument filed on 5th April, 2012 but deemed as properly filed and served on 28th February, 2013 adopted the issues formulated by the Appellant. On its part the 2nd Respondent filed a 2nd Respondents notice and in its brief of argument filed on 24th January, 2011 formulated the following issues for determination viz:-

i. Whether the 2nd Defendant/Respondent’s application being appealed is merely a procedural application under the Rules of Court (i.e. the Lower Court).

ii. Whether a procedural application under the Rules of Court to regularize pleadings can cure a fundamental statutory defect in the commencement of an action.

iii. Whether the proceedings of 24/2/2005 on page

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82 of the Records of Appeal amount to fair hearing of Plaintiff/Appellant’s applications dated 18/1/05 and 15/2/05 despite being calculated to overreach the 2nd Defendant/Respondent and if the latter (i.e. 15/2/2005) is not an abuse of process.”

In the determination of this Appeal I will be guided by the issues distilled by the Appellant as the issues cover essentially those distilled by the 2nd Respondent, and because the issues and arguments on same are intertwine. I will therefore set out the arguments of counsels on the issues and thereafter resolve all the issues together.