Chevron Nigeria Limited V. Napoleon a. O. A. Aguma & Ors (2005)
LawGlobal-Hub Lead Judgment Report
PATRICK IBE AMAIZU, J.C.A.
This is an appeal against the ruling delivered by Justice Aina of the Benin Division of the Federal High Court, on the 14th day of January 2000. The Ruling was sequel to a preliminary objection raised in a motion brought by the Plaintiffs/Judgment Creditors, in suit No. FHC/B/172/96. They are hereinafter referred to as respondents.
In the said motion, the respondents prayed for an Order to show cause by Chevron Nigeria Ltd herein after referred to as the appellant –
1) Why it should not be ordered to revisit all such payments made by it (not together with the Contractors) in respect of the Escravos Gas Pipeline Right of way (ROW) passing through Ugbagira in Ugborodo which payments were made to the 7th Defendants/Judgment/Debtor herein in that the said payments show that the amounts which were allegedly received by members 7th Defendants/ Judgment/Debtor herein in that the said payments show that the amounts which were allegedly received by members of the 7th Defendant/Judgment/Debtor and signed for by them is less than the amount actually due to 7th Defendant/Judgment/Debtor.
Why it should not be ordered to pay the sum of N25 million which comprises the difference between what is in fact due to the 7th Defendant/Judgment/Debtor and what the said members of the 7th Defendant/Judgment Debtor actually received or any other sum that this Honourable Court may adjudge the Respondent liable to pay with respect to the order to show cause herein mentioned.
And for such further and/or other orders as this Honourable Court may seem fit.
The motion was brought pursuant to Order 33 Rules 12 – 17 of Federal High Court (Civil Procedure) Rules Cap 134, LFN, 1990. The appellant reacted to the motion by filing a Notice of Preliminary Objection dated 24th day of May, 1999 wherein it objected to the hearing of the respondents motion on the grounds that –
1) The said application now before this Honourable Court is incompetent, null and void ab initio
2) The said application is an abuse of the process of this Honourable Court
3) This Court lacks Jurisdiction to entertain same.
Further grounds of the said preliminary objection are adumbrated hereunder as follows –
(a) The action based on the application referred to which is the subject matter has not been initiated by due process of law.
(b) That the Honourable Court having delivered its final Judgment in this matter has no jurisdiction to entertain this application.
(c) That the applicants lack the necessary locus to institute this present application or at all.
(d) That there is no debt owned or now owed by the Respondent to the Judgment debtor, which is due to the applicant.
(e) In view of the above, the application having been constituted as such, the 4 motion and the prayer therein are based on a nullity and the orders made therein cannot stand.
The lower court heard argument of the learned counsel on the preliminary objection. And in a considered Ruling dismissed the preliminary objection on the ground among others that since it is the judgment of the court that the application relates to and the judgment debt has not been fully satisfied, it could not be legally argued that the Honourable Court cannot make an order for full compliance with its judgment. The Ruling ended thus-
“In coming to this conclusion, I have, also taking into consideration that the Nigeria Police Force, an agency of the Federal Government of Nigeria had been involved in the investigation of the payment made by the Respondent herein and that agency is holding in its hands certain amount of money discovered during its investigation.
I am at this stage of the proceeding making no order as to cost.”
The appellant was dissatisfied with the above Ruling. It has appealed to this Court.
In compliance with the Rules of the Court the learned counsel for the parties, on behalf of their clients, filed briefs of argument. From the three grounds of appeal filed by the appellant, three issues were distilled. They are-
- Whether the learned trial Judge was right when he assumed Jurisdiction to entertain the application having regard to the process through which the action was initiated and the fact that the application raised new cause of action as against the appellant who was not a party to the action that culminated in the judgment of the Court of 14th January 2000.
- Whether the learned trial Judge was right when he held that “there is an existing Judgment of this Honourable Court for which the Applicants are calling on the Respondents to make good short payments thus conferring locus on the Respondent to institute the claim.”
- Whether the learned trial Judge was right when he failed to decide on all the issues raised in the Appellants Notice of Preliminary Objection.
Before us, the learned counsel adopted their respective briefs of argument. It is observed, that Alele Esq, of counsel raised a number of objections in respect of the grounds of appeal filed by the appellant. It is the learned counsel’s view that the grounds are incompetent and incurably defective. Referring to ground 2, the learned counsel observed that the ground being a ground of law, the appellant was obliged to observe/comply with the principles enunciated in the case of SILENCER AND EXHAUST PIPES COMPANY LIMITED VS. FARAH (1998) 12 NWLR (PART 579) Page 624 at 635.
It being that the passage in the Judgment where this error in law is alleged to have occurred must be quoted. The learned counsel also referred to the particulars of the ground of appeal and submitted that with regard to the “1st particular” there is no evidence in the record that the respondents are minority groups in Ugborodo Community.
As to the Particulars NO.2, the Respondents submitted that same does not flow from Particular NO.1. He observed that the Rules in Foss Vs. Harbotle derive their existence from the relationship between Minority and Majority Shareholders in a body corporate. The learned counsel submitted that the absence of evidence of the relationship between Minority and Majority Shareholders in the proceedings, appealed against, renders the application of the Rule in operative in the present case.
It is also the contention of the learned counsel that leave is required by the appellant before filing a ground of appeal alleging lack of locus standing. He relied on the case of BUSARI VS. OSERI (1992) 4 NWLR (PART 237) Page 557 at 587.
Finally, the learned counsel submitted that ground One is void ab initio. He observed that the only application which was entertained by the lower court and which was ruled upon was the preliminary objection raised by the appellant. In respect of ground 3, the learned counsel submitted that it violated the requirements set down in the case of Exhaust Pipe Ltd supra. He urged the court to strike out the grounds of appeal as being deficient.
Etuwewe Esq. of counsel, filed a reply Brief in answer to the above issues raised by the respondents in respect of the grounds of appeal. He contended that the grounds are competent having satisfied the position of the law as well as the provisions of Order 3 Rule 2(3) of the Court Of Appeal Rules As Amended. He submitted that a ground of appeal should be read together with the particulars in order to determine if there is a reasonable complaint against the Judgment appealed against worthy of consideration by the appellate court. He placed reliance on the following cases-
1) MBA Vs. AGU (1999) 12 NWLR (PART 639) Page 1
2) ORAKOSIM Vs. MENKITI (2001) FWLR (PART 52) Page 2068 at Page 2077.
Finally, the learned counsel submitted that the respondents were not misled by the grounds of appeal. He observed that the essence of filing grounds of appeal is to bring to the fore real complaint of an appellant against the Judgment appealed against. He cited the case of Eric EMBORG EXPORT A/S VS. JOS INTERNATIONAL BREWERIES PLC. (2001) FWLR (PART 82) Page 2031 at 2043.
GROUND 2
In respect of ground 2, the learned counsel submitted that the respondent’s counsel applied the decision in the case of SILENCER AND EXHAUST PIPES CO. LTD VS. FARAH (1998) 1 2 N WLR (PART 579) Page 624 out of context. He contended that ground 2 is a ground of law, which challenges the learned trial Judge’s decision on locus standi of the Respondents in the application before him.
The learned counsel however conceded that it is more elegant for an appellant to quote verbatim the passage of a Judgment complained in the ground of appeal. He contended that it is not mandatory to do so. He relied on the case of MOHAMMED VS. NWOBODO (2000) FWLR (PART 15) Page 2546 at Page 2561 where it was held by a Division of this court that-
“Order 3 rule 2(2) of the Court of Appeal Rules, 1981, does not admit as a mandatory step that the passage of the judgment of the lower Court against which misdirection is alleged must be quoted verbatim “.
In the instant case, the failure to quote the finding does not render the ground of appeal in competent”.
The learned counsel then referred to the contention that leave of this Court is required before filing ground 2. He reminded the court that leave of the Honourable Court was s ought and obtained by the appellant. He referred to the Order of this Honourable Court in that regard dated May 16, 2000.
Ground 3.
In respect of the above ground, the appellant adopted all the submissions on grounds 1 and 2. And, in addition, submits that the ground is a ground of law simpliciter.
He relied on –
1) M.D.P.D.T Vs OKONKWO (2001) FWLR (PART 44) PAGE 542 AT 573
2) SHANU Vs AFRIBANK NIG. PLC (2000) FWLR (PART 23) PAGE 1221 AT 1232.
Finally, the learned counsel submitted that there is no hard and fast rule as to how a ground of law is framed. Suffice it to say, that so long as the complaint is manifest in the ground together with its particulars and the respondents are not misled, the ground would not be struck out for incompetence. He relied on the case of Degi Vs Francis (1999) 3 NWLR (Part 596) Page 588. He urged the court to dismiss the notice of the preliminary objection.
I now consider the objection. The objection is in the main that the grounds of appeal are not filed in-conformity with the decision in the case of SILENCER AND EXHAUST PIPES CO. Vs. FARAH (1998) 12 NWLR (PART 579) PAGE 624. In that case, the decision of Tobi J.C.A (as he then was in the case of NATIONAL BANK OF NIG. LTD Vs. OPEOLA (1994) 1 NWLR (PART 319) 126 AT PAGE 137 was referred to. He has this to say –
“It is elementary law that generally where an appellant files a ground of appeal alleging misdirection or error in law, he must supply the Particulars relied upon “.
He went on to say that –
“Although Order 3 rule 2(2) provides for the mandatory “shall “, it is not every breach of the rule that can result in the sanction of striking out the ground for instance where the ground of appeal itself gives adequate or sufficient information as to the nature or content of the error of law complained of, a Court Of Appeal will not strike out the ground of appeal on the only ground that particulars were not separately supplied … ”
It is because of this, and perhaps more that in the case of MOHAMMED Vs. NWOBODO Supra that it was held despite the non compliance with the decision that –
” … In the instant case the failure to quote the finding does not render the grounds of appeal incompetent”.
It is also because of that IKONGBEH J.C.A. in DEGI Vs. FRANCIS supra observed that –
“There cannot be any set form in which a ground of appeal must be framed. The overriding consideration in determining whether a ground is good or bad is whether or not any reasonable complaint has been raised against the offending judgment”.
I have looked at the grounds of appeal in the context of the above observations; I have no doubt that they are in substantial conformity with the provisions of Order 3 Rule 2(2) of the court of Appeal Rules. Consequently, they are competent grounds.
The second objection is in respect of the appellant not obtaining leave of this Court before a ground of mixed law and fact was filed.
It is well established principle of law that failure to obtain leave of court where leave is required renders both the ground of appeal and the issue formulated there from incompetent.
In the present case, the claim by the appellant that he obtained leave of the court on the 16 of May 2000 was not refuted. It would therefore be an academic exercise to dwell on it. From all I have said, the objections have no merit. They are accordingly dismissed.
I now deal with the main appeal. Arguing issue One, Etuwewe Esq. of counsel contended that the lower court lacked jurisdiction to entertain the application of the respondent. He described the application as incompetent and defective.
It is the view of the learned counsel that the application raised new cause of action.
In that case, the application, he submitted cannot be brought by way of a motion on notice.
The learned counsel then reminded the court that the application was in respect of the final judgment of the lower court. He observed that it bears the same suit number as the main suit. And, the respondent was not a party to the main suit. The learned counsel referred to the case of Co. OPERATIVE BANK LTD Vs. OBOKHARE (1996) 8 NWLR (Part 468) Page 579 at Page 587 and submitted that a non party to an action is not bound by the judgment of the court. He submitted that the sum of N25 million naira being claimed from the appellant by the respondent by way of the instant application is a new cause of action against the appellant. And, the appellant was not a party to the suit from which the Respondent obtained the judgment that led to the present application.
The learned counsel reminded the court that the issuance of a writ of summons and the service of same on a defendant are the conditions, precedent to the exercise of a courts’ jurisdiction over a defendant. He placed reliance on the provisions of Order 11 rule 1(1) now Order 2 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2000. He cited –
1) 7UP BOTTLING COMPANY LTD V TRIO COMMODITIES COMPANY LTD (1996) NWLR (PART 455) PAGE 448.
2) COMMISSIONER FOR LANDS MIDWESTERN STATE V OSAGIE (1973) 1 ALL NLR (PART 1) PAGE 620.
He contended that the respondent ought to have commenced the action by way of a writ of summons and not by a mere application of the nature complained of. It is his view that the trial judge having delivered its final judgment in suit NO. FHC/B/172/96 became functus officio and except for ancillary orders, which the Respondents’ application did not fall under, the learned trial judge and indeed the Respondents, cannot re-open the case. And the trial judge has no jurisdiction to entertain any application to re-open same. He relied on the case of BERLIET NIG. LTD Vs KATCHELLA (1995) 9 (PART 420) PAGE 478 AT 493.
It is the view of the learned counsel that there is no law both in our procedural or adjectival, legal system that supports the present application by the respondents. He observed that Order 33 Rules 12 – 17 of the Federal High Court (Civil Procedure) Rules 2000, under which the Respondents purportedly brought the application does not support the application at all. The provisions deal with the production and inspection of documents referred in pleadings and affidavits in a pending suit.
The learned counsel submitted that once there is no law to support an application that application ought to be dismissed or struck out. He places reliance on IGUEDO DIELLI & ORS Vs. OSAKWE LUTUNO & ORS (1996) 4 NWLR (PART 445) PAGE 622 AT 630.
Arguing in the alternative, the learned counsel submitted that even if it is conceded that the application is properly before the court, the subject matter of the present application being a debt emanating from compensation allegedly due to the 7th defendant i.e Ughorodo Community Trust as a result of the appellants’ acquisition of all that piece/parcel of land known as Ubagira including the appellants’ Pipeline right of way, the Federal High Court does not have jurisdiction to entertain the claim as it is a matter within the exclusive jurisdiction of the State High Court. He referred to section 19 of the Oil Pipelines Act Cap 338, Law of the Federation of Nigeria, 1990, and section 40 of the 1979 Constitution of the Federal Republic Of Nigeria which was the law prevailing at the time of the institution by the Respondents of their action.
It is the learned counsel’s view that the fact that the Police Force is said to have been involved in the investigation of payments made by the appellants in this case, notwithstanding, the exclusive jurisdiction conferred on the Federal High Court does not cover this matter. The learned counsel urged the court to hold that the action is a nullity and the learned trial judge was wrong in assuming jurisdiction to entertain same.
In his reply on issue One Alele Esq. of counsel referred to the case of CO-OPERATIVE BANK Vs. OBOKHARE (1996) 8 NWLR PART 468) PAGE 578 AT 587. He submitted that the case has no relevance to the present suit. This is because, the present application deals with enforcement of judgment under a Trust against a party who is shown to be withholding monies belonging to the beneficiaries under the Trust.
The learned counsel then distinguished the facts of the case of CO-OPERATIVE BANK supra, from the facts of the present case. He submitted that the CO-OPERATIVE BANK case arose from drawing an over draft facility. Whereas, there is clearly a nexus in the present application, between the community Trust and the Respondent and the appellant, in that the present transaction is an equitable assignment. According to the learned counsel, there is evidence before the Court that the appellant is aware of the transaction wherein it acquired the land of the Respondent, that payments made in respect thereto would benefit the Respondents as contained in Exhibit ‘AA’. According to the learned counsel, the evidence before the Court shows clearly that the appellant is much aware of the shortfall in the payments, which the Respondents are seeking to make good by the present suit.
The learned counsel submitted that the manner in which the present action was brought by the Respondents is appropriate, having regard to the special circumstances of the present case. In the view of the learned counsel, this is not an action to be commenced by a writ of summons in that the action is incidental to the judgment contained in Exhibit’ AA’. In that case, the provisions of Order 12 Rule 1 of the Federal High Court Rules 2000 is inappropriate. The learned counsel then urged the court to discountenance the submissions of the appellant, as the application is not vexatious. See: NY SCHEEP vs. MU ARAZ (2001) FWLR (PART 34) PAGE 543 AT PAGES 557 & 552. The learned counsel reminded the court that the issue it is called upon to resolve is the payment under the Escravos Gas Pipeline Right Of Way. He submitted that there is an attempt to mislead the court by referring to Pipeline Simpliciter and not to Gas Pipeline. And, in addition, requesting the Court to make a finding on the relief that it gives the Respondent.
It is the view of the learned counsel that the Oil Pipeline Act confers jurisdiction on a State High Court to hear claims for injury/damage in respect of the area covered by the Oil Pipeline. (Section 19 thereof). It is further his view that the Oil Pipeline Act does not confer jurisdiction on a State High Court to hear claims in respect of Gas Pipeline.
He submitted that the appellant deliberately omitted the word Gas from Gas Pipeline as contained in the Claim before the Court and inserted in its place Pipeline simpliciter. The learned counsel observed that section 40 of the 1979 Constitution deals with the fundamental Rights of the Citizen and the right of the citizen to go to court to seek protection of the citizen’s property threatened to be acquired. He also referred to the Exclusive Legislative list of the Constitution. He observed that under article 37 thereof, the Federal Government has the exclusive jurisdiction over Natural Gas. He submitted that if it is conceded that the subject matter is Pipeline simpliciter and not Gas Pipeline the appellant is still on the wrong side of the law. He relied on the case of – SPDC Ltd Vs ISAIAH (2001) FWLR (PART 58) PAGE 608. In the present suit the subject matter deals with the issue of construction, operation and maintenance. In that case it comes within the ambit of section 230 (1) (a) of Constitution (Suspension And Modification Decree) NO. 107.
Finally, the learned counsel referred to the contention that the Trustees are not parties to this Appeal. He observed that the appellant withdrew against the Ugborodo Community Trust by its application dated and filed on 7/3/2002. The application for withdrawal was granted on 16/5/2002. He submitted that by the withdrawal, judgment was conceded to the Ugborodo Community Trust.
He urged the Court to resolve the issue in favour of the respondent.
Order 2 Rule 1 (1) of the Federal High Court (Civil Procedure) Rules, 1990 provides as follows-
“Every action in the Court shall be commenced by a writ of Summons signed by a judge or other officer empowered to sign summons”.
The present action is initiated by a motion on notice. And the reliefs sought in the motion are predicated on a judgment that has been delivered by the lower Court.
Relief 2 reads –
“Why it should not be ordered to pay the sum of N25m which comprises the difference between which is infact due to the 7th defendant/Judgment debtor and what the said members of the 7th defendant/Judgment debtor actually received or any other sum that this honourable Court may adjudge the respondent liable to pay with respect by the Order to show cause hereunder mentioned”.
In the case of MADUKOLU & ORS Vs NKEMDILIM (1962) NSCC PAGE 374, it was held that a Court is competent when –
1) it is properly constituted with respect to the number and qualification of its members.
2) the subject matter of the action is within its jurisdiction.
3) the action is initiated by due process of law
and 4) any condition precedent to the exercise of its jurisdiction has been fulfilled.
A defect in the procedure followed by a court makes the proceedings impeachable on the ground of irregularity but does not necessarily render them a nullity.
In the present case, the motion on, notice is supported by an affidavit. The relevant averments of the affidavit are –
2) That the  7th defendant above mentioned was adjudged liable to the Plaintiff/Judgment creditors by this Honourable Court in the sum of N25, 017, 095.26K (Twenty five million, seventeen thousand and ninety five naira and twenty six kobo) per the document here to attached as Exhibit “AA”.
3) That to the 7th Defendant/Judgment/Debtor is due several sums of money consequent upon the acquisition by the respondent of all that piece of parcel of land know as Ubagira which piece of land is in Ugborodo in Escravous in respect of which the ill Defendant/Judgment Debtor exercises jurisdiction.
4) That in the process of payments of the aforementioned several sums of money the Respondent paid only part of these several sums, which include Right of Way (ROW) for Escravous Gas Plant and fishing rights relating to rivers/waters which form part of the land acquired.
24) That it is in respect of these figures that Plaintiff/Judgment Creditor now apply to this Honourable Court that the Respondent be compelled by way of an order to show cause, why it should not appear in this Honourable Court to reconcile the different conflicting payments it claims to have made to 7th Defendant/Judgment Debtor and to pay the Plaintiffs/Applicants the sum of N25m in default thereof’.
It is clear from the above averments that the applicant is claiming a shortfall in the payments due to it in respect of the judgment of the lower court. This claim cannot be classified as an ancillary relief. The rule is that where a judge has delivered his final judgment in a suit it becomes functus officio with respect to that suit. Except for making of ancillary orders such as orders for stay of execution of the judgment or for payment of the judgment debt by installment for which there are statutory provisions once the judge has delivered a final Judgment in a matter pending before him he ceases to be seized of that matter. BERLIET NIG. LTD Vs. ALHAJI MUSTAPHA KACHALLA (1995) 9 NWLR (PART 420) PAGE 478.
The motion is stated to have been brought under Order 33 Rules 12 – 17 Federal High Court Rules Cap 134 Laws of Federal Republic of Nigeria, 1990. I observe that a party is not bound to state the particular rules under which he will be moving the court.
Where he states the rules, and in so doing states the wrong rules on the application so long as the relief or remedy is provided for by any written Law (or the common law or equity) it is not a fatal mistake. The court is entitled to entertain the application on its merit applying the proper rule. DR. MOSES C. O ONYEJIKE Vs. ADOLPHUS IBEME ANYASOR (1992) 1 NWLR (PART 218) PAGE 437.
But where there is no Law that supports the application as in the present case it ought to be dismissed or struck out as it constitutes an abuse of the process of court IGUEDO DIELI & ORS v. OSAKWE IWUNO & OR (1996) 4 NWLR (PART 445) PAGE 622 AT 650.
I am of the firm view that the fact that the Nigeria Police force is alleged to have been involved in the investigation of the payments earlier made by the appellant has nothing to do with the status of the case. Nor does it revive the case.
The issue is resolved in favour of the appellant.
Arguing issue 2, Etuwewe Esq. of counsel reminded the court that there is no existing judgment to which the appellant was a party to warrant the Respondents requesting payment of any shortfall as stated in the Ruling which is the subject of this appeal: He referred to the case of CO-OPERATIVE BANK LTD Vs. OBOKHARE (1996) 8 NWLR (PART 468 PAGE 579. He submitted that parties are bound by the reliefs they seek in their motion. He referred to the case of COMMISSIONER FOR WORKS BENUE Vs. DEVCON LTD (1998) 3 NWLR PART 83 PAGE 407. And, contended that a court cannot make a separate and distinct case for the parties See: ALLI Vs. ALESHINLOYE (2000) FWLR PART 15 PAGE 2610 AT 2643. PER IGUH J.S.C.
“It is not competent for a court suo motu to make a case for either or both parties and then proceed to give judgment on the case of the parties before it”.
It is his submission that the Respondents have no locus standi to bring the application before the lower court. He observed that the claim in the application the subject matter of this appeal was for an unspecified amount of money, which was alleged due to the 7th Defendant/Judgment Debtor from the appellant. The said amount was not paid in full and that the appellant should be ordered to pay the sum of N25, 000.00 (twenty five thousand naira) to the Respondents as judgment creditors. According to the respondent, that represented the difference between what is in fact due to the 7th Defendant/Judgment Debtor and what the members of the 7th Defendant/Judgment/ Debtors actually received.
The learned counsel described the 7th Defendant/Judgment Debtor as the Ugborodo Community Trust that was duly constituted and registered under the relevant Laws of the Federal Republic of Nigeria for the benefit of the entire Ugborodo Community. The Community Trust can sue and be sued being a legal entity recognized by law. The learned counsel observed that the Respondents claim that they are members of the Community Trust. He observed that the Respondents have not alleged that monies due to their own family are being withheld by the appellant. It is the view of the learned counsel that if there is any shortfall in the monies due to the 7th defendant/Judgment Debtor, it is the 7th Defendant/Judgment Debtor that can bring an action to recover the short fall and not the Respondents. He relied on the case of TANIMOLA Vs. SURVEY & MAPPING GEODATA LTD (1995) 6 NWLR (PART 403) 617 AT 627. The learned counsel submitted that the Respondents being one of the beneficiaries of the Trust by virtue of their being a member of Ugborodo Community have not the right without more to bring the present action.
Finally, the learned counsel submitted that the position of the Law is that a person who is not a party to a contract cannot in Law maintain an action to enforce the contract even if the contract was made for his benefits UNION BEVERAGES LTD Vs. PEPSI COLA INTERNATIONAL LTD & ORS (1994) 3 NWLR (PART 330) PAGE 1 AT PAGE 16.
He contended that there is no existing judgment to which the appellant was a party to warrant the respondents requesting the payment of any short fall as contained in the ruling of the lower Court.
He urged the Court to resolve the issue in favour of the appellant.
In his reply on issue 2, Alele Esq. of counsel submitted that the reliefs sought in the motion in the court below are consistent with an equitable assignment of the judgment debt in Exhibit “AA”. The assignment the learned counsel submitted, divested the Ugborodo Community Trust of the sum of N25, 017, 095. 26K and vested same in the Respondents.
He referred to the finding of the Court below that since the application relates to a judgment, which has not been satisfied, the Respondents have a right to seek compliance with the judgment and it is consistent with the fact that this right is a chose in action, and proceedings were brought to enforce the right.
According to the learned counsel, the lower Court was neither making “case for the Respondents nor did it proceed to give judgment contrary to the case put forward by the Respondents in the lower court “. In the learned counsel’s view the findings of the lower Court were made after due consideration of the entire processes before the Court, including the application, supporting affidavit; Exhibits, and the judgment Exhibit “AA”.
With regard to the issue of locus standi, the learned counsel submitted that it does not apply in this case. This is because the case of TANIMOLA Vs SURVEY MAPPING GEODATA LTD supra, which the appellant relied on to invoke locus standi, in his words, “relate to a wrong done to a Company and not a wrong done by a Company”.
It is his view also that the case of UNION OF BEVERAGES LTD v. PEPSI COLA supra does not apply to the present case. He urged the court to resolve the issue in favour of the respondents.
It is common ground that the 7th Defendant/Judgment Debtor i.e Ugborodo Community Trust is a legal person. In that case it can sue and be sued. And it is also common ground that a number of towns/villages make up the said Ugborodo Community Trust.
A careful examination of the affidavit sworn to on behalf of the Respondent in respect of the motion now on appeal shows that the averments contained therein are based on hearsay, speculation and imaginations. The best evidence will come from the 7th Defendant/Judgment Debtor itself. It is because of this that I am of the firm view that the 7th Defendant/Judgment/Debtor, should take a fresh action to recover what is due to it, if any. Or if a member of the 7th Defendant/Judgment Debtor is to take action, it must join the 7th Defendant/Judgment/Debtor. This was not the case here.
I resolve the issue in favour of the appellant.
Finally, on issue III, Etuwewe Esq., of counsel submitted that the lower court erred in law when it failed to properly consider and decide on all the issues raised by the appellant in its Notice of Preliminary Objection. He identified some of the issues raised by the Appellant in its Notice of Preliminary Objection which were not considered by the learned trial judge as including the following –
1) That the application was an abuse of the Courts process because it is not supported by any law.
2) That the Respondents lacked the necessary locus standi to institute the action.
3) That the action was not initiated by due process of law.
He concluded by contending that there is no legal basis for the conclusion reached by the learned trial judge that –
“It is in the interest of justice and the law for this court to dismiss the Notice of Preliminary Objection”.
In his reply, Alele Esq., of counsel submitted that the lower court adequately dealt with the above issues. He referred to passages in the Ruling, where the issues were considered. Accordingly, he urged the court to resolve issue 3 in the favour of the Respondents.
I agree entirely with the learned counsel for the respondent that the lower court considered the issues raised in the Preliminary Objection. This fact is clearly brought out in Issues 1 & 2 above. It is because of this that the appellant while arguing issue 3 stated –
“Before proceeding further, we must quickly adopt all the submissions made in issues 1 & 2 above in arguing this issue since they are related”
In conclusion, it is my view that apart from Issue 3, the first two issues are resolved in favour of the Appellant. Consequently, the appeal succeeds and it is hereby allowed. I make no order as to costs.
Other Citations: (2005)LCN/1755(CA)
