Shell Petroleum Development Company Nigeria Limited V. Zenith Bank Plc & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Ruling)

My Lords, when this matter came up for hearing on 9th December, 2010 a sister case no CA/PH/387/2010 with all the parties, as in this suit, was also listed on the cause list. The appearances of counsel respectively for the parties in that matter were in paria materia with counsel appearances in this case. The counsel, particularly Chief Richard Akinjide, SAN for Appellant/Applicant and L.E. Nwosu, Esq. SAN for 2nd set of Respondents, were surprised that suit no CA/PH/387/2010 was listed on the cause list that day.

I heard both senior counsel well that day. Chief Richard Akinjide SAN stated from the Bar that against the refusal of the Rivers State High Court to join Shell Petroleum Development Company Nigeria Limited (SPDC), the present Appellant/Applicant, as an interested party in the suit no PHC/1690/2010 they had filed two notices of appeal on 24th and 25th August, 2010. L.E. Nwosu, SAN, also from the Bar, offered corroboration. The senior counsel stated, on the authority of the Record of appeal in CA/PH/387/2010, that SPDC –

filed two notices. See pages 364 – 367 filed on 24.8.2010 without leave and pages 115 – 125 filed on 25.8.2010. The two notices carry two different numbers i.e. CA/PH/387/2010 – and CA/PH/359M/2010 filed on 25.8.2010.

L.E. Nwosu SAN further pointed out that the two appeals, from the grounds of appeal, are all directed against the refusal of the trial court to join SPDC in the suit no PHC/1690/2010. Chief Richard Akinjide, SAN did not dispute that fact. The fact is further corroborated by Exhibits SPDC 9 and SPDC 10 in this application.

I am a little bit perplexed. There is a notice of appeal filed on 25th August, 2010 carrying the suit no CA/PH/389M/2010, the same suit number this motion, filed on 26th August, 2010 at 12.54 pm, is carrying. The notice of appeal no CA/PH/389M/2010 is not in this file. I have a feeling of something sinister happening.

The manner the facts are juggled in this matter makes us to act carefully. As it is put on the streets – we have to shine our eyes.

Suit no PHC/1690/2010 was filed by the present plaintiffs/respondents. The Defendant in that suit was Zenith Bank Plc, the present Defendant/Respondent. On 12th August, 2010 the trial High Court refused the application of the SPDC to be joined in that suit. It is against that interlocutory decision that two notices of appeal, aforementioned numbers CA/PH/387/2010 and CA/PH/389M/2010, were respectively filed on 24th and 25th August, 2010. That decision dismissing the SPDC application for joinder as interested party is an appealable decision within the meaning of Section 318, 241 and 242 of the 1999 Constitution at the instance of the aggrieved party.

It is clear from ground 3 of the Notice of Appeal no CA/PH/387/2010 filed on 24th August, 2010, Exhibit ‘SPDC 9′, that SPDC exercised its right of appeal against the decision the trial court handed down against it on 12th August, 2010. The ground reads –

The trial High Court erred in law when it refused to joined (sic) the Appellant as a party in the matter.

PARTICULARS OF ERROR

I. The matter before the lower court cannot be effectively and finally determined in the absence of the Appellant.

II. The bank guarantee which the Claimants want to realize using the present suit was obtained and filed by the Appellant upon the order of the Court of Appeal dated October 10, 2006 directing it to do so.

III. The determination of the Claimants’ suit will definitely affect not only the Appellant’s right of appeal to the Supreme Court but also the Appellant’s right to seek stay of execution of the judgment of the Court of Appeal pending the determination of its appeal to the Supreme Court.