Willbros West Africa INC & Ors V. Mcdonnel Contract Minning Limited (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of Jose J. of the High Court Lagos State, Lagos Judicial Division delivered on 28th November, 2012 wherein the court dismissed five out of the six grounds of the Defendants’/Appellants preliminary objection.

The Respondent had filed its originating process with documents for judgment while, Defendants filed a conditional appearance. However, the 1st-3rd Defendants/Appellants filed a preliminary objection to the Claimant/Respondent suit challenging the competency of the suit and the jurisdiction of the lower court to hear and determine the suit on the grounds that Section 8 of the foreign judgments (Reciprocal Enforcement) Act, 2004 and Reciprocal Enforcement of Judgment Act (Cap 175) 1958 oust the jurisdiction of the court to entertain the suit as constituted; improper service of the originating process on the 1st Defendant and also that the 2nd-3rd Defendants were not parties to the foreign judgment sought to be enforced against them and that the issues canvassed in the suit constitute res judicata.

The lower court heard the preliminary objection and dismissed the grounds while finding that service of originating process on 1st defendant through the 2nd defendant was improper. Dissatisfied, the Appellants filed an appeal vide a Notice of Appeal dated 7th November, 2012.

1st-3rd Appellants’ brief of argument is dated 7th August, 2014 and filed on 8/8/2014 and settled by Seni M. Adio Esq., Ijeoma Njemanze (Mrs.) and Adebola Adesanya (Mrs.) of Copley Partners and a reply brief but filed on 8/5/2015 dated 24/4/2015; while Respondent brief is dated 28/1/2015 and filed on 2/2/2015 but deemed on 26/2/2015. Same was settled by C.A. Candide-Johnson Esq., SAN, Rahman Oshodi Esq., Izuchukwu A. Onyebuchi Esq., of Strachan Partners.

Appellants formulated – (4) four issues for determination thus:

1. Whether the lower court was right when it overruled the Appellants’ Preliminary Objection to the competence of the suit filed by the Respondent.
2. Whether the lower court was right when it assumed jurisdiction on the matter despite the inconvertible fact that the 2nd and 3rd Defendants were NOT PARTIES to the foreign judgment the Respondent seeks to enforce in Nigeria against the 1st defendant – a foreign entity – NOR WERE THEY PARTIES TO THE TRANSACTION BETWEEN THE CLAIMANT AND THE 1st DEFENDANT/1st APPELLANT.
3. Whether the lower court was right when it held that it has jurisdiction to entertain the suit which was instituted by way of a Writ of Summons to recover a debt purportedly owed by the 1st defendant pursuant to foreign judgment instead of by registration of the foreign judgment.
4. Whether the lower court was right in holding that the Respondent’s suit was not barred by the settled legal principle of Res Judicata.

While the Respondent adopted the four issues, it nonetheless filed a notice of preliminary objection dated 28/1/2015 and filed on 2/2/2015 which has been incorporated in the Respondent’s brief.

I shall address the Notice of Preliminary Objection first. In its notice of preliminary objection, the Respondent is seeking for an order of this court dismissing and/or striking out Grounds 2 and 4 contained in the Appellants’ Notice of Appeal dated 7th December, 2012 for being incompetent. The grounds for objection are as follows:

“a. The Appeal is an Interlocutory Appeal against the decision of the High Court of Lagos State and Grounds 2 and 4 contained in the Appellants’ Notice of Appeal dated 7th December 2012, are grounds of facts and mixed law and fact.

b. By virtue of Sections 241(1) and 242(1) of 1999 Constitution of the Federal Republic of Nigeria (as amended), the Appellants ought to seek leave of court before appealing against a interlocutory decision on grounds of fact and or mixed law and fact.

c. The Appellants did not obtain the required leave of court before initiating this Appeal.

d. Grounds 2 and 4 are incompetent and this Honourable Court does not have the jurisdiction to entertain them. They should be struck out in limine.”

Arguing the preliminary objection, the Respondent’s counsel formulated a sole issue for determination thus:

“Whether in the light of the clear provisions of Sections 241(1) and 242(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) this appeal is not incompetent same having been initiated without the leave of court”