Seplat Petroleum Development V. Brittania- U Nigeria Limited & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

Y.B. NIMPAR, J.C.A. (Delivering the Leading Judgment)

The appellant is the 5th Respondent in the suit initiated by the plaintiff, (the 1st Respondent) at the Federal High Court Lagos in suit No FHC/L/CS/1711/2013. The suit was commenced by a writ of summons supported by a statement of claim. The plaintiff (1st Respondent herein) applied by way of an ex-parte motion dated 12th December, 2013 wherein it prayed for 8 orders amongst which are order 5 – 9 relevant to this appeal and reproduced as follows:

1. AN ORDER of interim injunction restraining the 1st, 2nd, 3rd and 4th Defendants/Respondents, their servants, agents, privies, proxie, fronts, staffers or hirelings howsoever called from proceeding or continuing to invite bids, offering or accepting, negotiating or engaging in any transaction or contract calculated or purporting to transfer, sell, farm out or otherwise charge, encumber, deal in, dispose of or divest the 40% participating interest of Chevron Nigeria Limited in Oil Mining Lease 52, 53 and 55 in Nigeria in favour of any person, entity or whomsoever at all in derogation from or in disregard of the agreement entered into between the plaintiff and the 1st Defendant on 14th and 15th November, 2013 whereby the parties entered into binding contract for the acquisition of the OML 52, 53 and 55 by the plaintiff from the 1st Defendant pending the determination of the motion on notice.
2. AN ORDER of interim injunction restraining the 1st, 2nd, 3rd and 4th Defendants/Respondents either by themselves or by their agents from declaring the 5th Defendant/Respondent or any other bidder apart from the Plaintiff/Applicant as the preferred winner for the assignment of the 1st Defendant/Respondent 40% interest on OMLS 52, 53 and 55 in Nigeria pending the determination of the motion on notice.
3. AN ORDER of interim injunction restraining the 1st, 2nd, 3rd and 4th Defendants/Respondents either by themselves or by their agents from executing a definitive agreement or any other agreement with the 5th Defendant/Respondent or any other bidders apart from the Plaintiff/Applicant or any other bidder apart from the Plaintiff/Applicant or purporting to assign the 1st Defendant/Respondent’s 40% interest in OMLS 52, 53 and 55 in Nigeria to any third party pending the determination of the motion on notice.
4. AN ORDER of interim injunction restraining the 1st, 2nd, 3rd and 4th defendants/respondent either by their agents from taking any further step(s) whatsoever with the 5th defendant/respondent or any other bidder apart from the Plaintiff/Applicant in purporting to conclude the assignment of the 1st Defendant/Respondent’s 40% interest in OMLS 52, 53 and 55 in Nigeria pending the determination of the motion on notice.
5. AND FOR SUCH further order or orders as the honourable court may deem fit to make in the circumstances; inclusive of imposition of undertaking as to damages.

The motion was supported by an affidavit of 104 paragraphs duly sworn to by one Mrs. Uju C. Ifejika, the Chairman/Chief Executive of the Plaintiff/Applicant Company. There are annexures attached and marked as Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16c, 16D, 17, 18A, 18B, 18C, 22, 23, 24A, 24B, 25, 26 and 26 to support the application.

The motion was taken ex-parte and the trial court granted the application on the 13th December, 2013. The substantive suit and the motion on notice were thereafter adjourned to the 27th January, 2014. On the 18th day of December, 2013, the 1st Respondent applied for an amendment of the order of court by an application dated 18th December, 2013. The amendment was granted on the 23rd of December, 2013 and the court further adjourned the suit to the 27th January, 2014.

Upon service on the Applicant as 5th Respondent at the lower court, it filed an application dated 27th December, 2013 seeking to discharge the interim order.

The 1st Respondent herein upon being served with the appellant’s application wrote a letter to the court asking for an earlier date for hearing. The matter was fixed for hearing of the motion on the 10th January, 2014. On the 10th January, 2013 only the appellant, 1st and 2nd Respondent were present in court, there was no proof of service on the other parties. The matter was further adjourned to the 27th January, 2014.

On the said date, all parties were in court and the appellant, 2nd – 5th Respondents all informed the court of their various pending applications challenging the jurisdiction of the court. Learned counsel to the 1st Respondent sought for time to react to the various applications, he also applied orally that the interim orders made on the 13th December, 2013, amended on 23rd December, 2013 be extended to abide the hearing of the pending applications.

The lower court in its ruling extended the life of the interim order of injunction on the premise that the condition precedent that will warrant its expiration had not been fulfilled.

The appellant being dissatisfied with the said ruling appealed to this court on 3 grounds of appeal.

The appellant formulated 2 issues for determination namely:

1. Whether the learned trial judge in the face of two applications challenging the jurisdiction of the court to entertain the suit as constituted, was right in taking arguments on a separate oral application to extend the interim injunction and delivering a ruling in respect of same without first determining its jurisdiction.
2. Whether in the circumstances of the case as at 27th January, 2014, the learned trial judge could validly extend the life span of the order of interim injunction granted ex-parte on the 13th of December, 2013 and amended on the 18th of December, 2013 notwithstanding the provision of Order 26 Rule 12 of the Federal High Court (Civil procedure) Rules 2009.

The 1st Respondent upon being served with the Notice of Appeal, filed two separate Respondent’s notices both dated 7th day of February, 2014. They were filed directly in this court. It also raised a preliminary objection to the appeal. Form 10A and Form 10B are reproduced here below:

FORM 10A

“NOTICE BY 1ST RESPONDENT OF INTENTION TO CONTEND THAT DECISION OF COURT BELOW BE VARIED.

BROUGHT PURSUANT TO ORDER 9 OF COURT OF APPEAL & RULES, 2011 AND UNDER THE INHERENT JURISDICTION OF THIS COURT.”