Suffolk Petroleum Services Ltd v. Mobil Producing (Nig) Unltd

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Lead Ruling)

This is a motion on notice brought pursuant to Order 2 Rule 28(1); Order 2(5) & 12(1) of the Supreme Court Rules 1985 and under the inherent jurisdiction of this Court. It seeks the following orders:

1. AN ORDER of this Court granting the Appellant/Applicant leave to Amend its Notice of Appeal dated 29th February, 2016 but filed on 1st March, 2016 by adding additional Grounds of Appeal as per EXHIBIT “B” attached to the affidavit in support of this Motion.
2. AN ORDER of this Court granting the Appellant/ Applicant Leave to file and argue grounds 3-10 of the Grounds of Appeal as contained in the Amended Notice of Appeal dated 5th January, 2021 but filed on 7th January, 2021 which are additional Grounds of Appeal.
3. AN ORDER of this Court granting the Appellant/Applicant leave to file and argue grounds 2-10 of the grounds of appeal as contained in the Amended Notice of Appeal dated 5th January, 2021 but filed on 7th January, 2021 as they consist of grounds containing mixed law and fact.
   ​4. AN ORDER of this Court deeming the said Amended Notice of Appeal dated 5th January, 2021 but filed on 7th January, 2021 as properly filed and served, the appropriate filing fees having been paid.

The grounds on which the motion is brought are stated below:

1. That on the 29th of February, 2016, the Court of Appeal, Port Harcourt Division (HON. JUSTICE M. L. GARBA, HON. JUSTICE EJEMBI EKO and HON. JUSTICE BITRUS G. SANGA) delivered judgment in this appeal sequel to which the Appellant/Applicant filed its Notice of Appeal dated 29th February, 2016 but filed on 1st March, 2016.
2. That the Records of Appeal was transmitted and the appeal entered on the 10th of May, 2017.
3. That the Appellant/Applicant desires to file additional Grounds of Appeal and needs the Leave of this Court to so do.
4. That the Appellant/Applicant also needs the leave of this Court to file and argue grounds 2 – 10 of the Amended Notice of Appeal as the said grounds 2 – 10 of the Amended Notice of Appeal consist of mixed law and fact.
5. That these additional Grounds of Appeal which flows from the decision of the Court of Appeal were omitted in the Grounds of Appeal contained in the Notice of Appeal dated 29th February, 2016 but filed on 1st March, 2016 and are now being sought with the leave of this Court to be included by way of this amendment and argued in the Appellant’s Brief of Argument.
6. That the leave of this Court is required to have the amendment effected by adding additional Grounds of Appeal and to also argue Grounds 2 – 10 of the Amended Notice of Appeal as they consist of mixed law and fact.

It is supported by a six (6) paragraph affidavit to which several exhibits were attached. Also a further affidavit, written address and reply were filed in aid of the application.

The Respondent vehemently opposed the application and filed a counter affidavit of 20 paragraphs and a written address.

In the Applicant’s written address settled by A.N. Odebe Esq., the Applicant argued that the intended Amendments to the Notice of Appeal will help the Appellant/Applicant fully present the issues involved in the appeal before this Court and will also assist this Court come to a well-considered decision.

That amendment can be sought at any stage of the proceeding provided such amendment will not occasion injustice to the Respondent and was not brought in bad faith and neither meant to overreach the Respondent. Counsel cited Akaninwo v. Nsirim (2008) All FWLR (Pt. 410) 610 at Pg. 655-658, Ojah v. Ogboni (1976) 4 SC 69.

Counsel submitted that the first ground of appeal in the original notice filed on 1/3/2016 being one dealing with jurisdiction, it is a ground of law which is valid as there is no need to seek and obtain leave to appeal. Counsel also submitted that it is trite law that so long as there is a living ground of appeal breathing air into the Notice of Appeal, the Notice of Appeal cannot be said to be dead or incompetent and same can be amended. Counsel cited Odoemena Nwaigwe & Ors. v. Nze Edwin Okere (2008) 13 NWLR (Pt. 1105) 445 at 474 paras. C – F.

​Counsel insisted that in this case, the amendment has not been made to overreach the Respondent but only to serve the ends of justice and ensure that all the complaints of the Applicant against the judgment appealed against are laid and ventilated before the Court. Counsel cited Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208, Adelaja v. Alade (1994) 7 NWLR (Pt. 358) 537, FBN Plc v. May Medical Clinics & Diagnostic Centre Ltd. (2001) 9 NLWR (Pt. 717) 28.

Counsel urged this Court to grant the amendment notwithstanding that briefs of argument had been filed, so long as the ends of justice is being served.

In the Respondent’s brief settled by Mrs. M. A. Essien, SAN; the Respondent argued that ground one of the original notice of appeal filed on the 1st of March, 2016 (Appellant’s Exhibit A) now reproduced as ground one of the amended notice of appeal filed on the 7th of January, 2021 is a ground of mixed laws and facts. Neither the leave of the Court of Appeal nor that of the Supreme Court was sought and obtained by the Appellant before it filed the said original notice of appeal.

Counsel argued that the Respondent by motion on notice dated the 14th of January, 2020 but filed on 17th of January, 2020 sought to strike out ground 2 of the Appellant’s notice of appeal dated 29th February, 2016 and filed on the 1st of March, 2016 for being incompetent as it is based on facts and or mixed law and facts.

​Respondent’s submission is that the Applicant’s application is intended to overreach the objection raised and argued by the Respondent in its said motion on notice dated 14th January, 2020.

Counsel argued that moreover no leave to appeal on mixed law and facts should be granted because the appeal is an academic exercise. Counsel stated that pursuant to the judgment of the Court of Appeal in Appeal No. CA/PH/667/2013: Mobil Producing Nigeria Unlimited v. Suffolk Petroleum Services Limited (2016) LPELR-40054(CA), the various decisions of Courts and the provisions of the Arbitration and Conciliation Act, the arbitral tribunal continued with its proceedings which was hitherto stalled by the decision of the Federal High Court in Suit No FHC/PH/CS/203/2012.