African Reinsurance Corporation V. Jdp Construction Nigeria Limited (2003)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

This ruling arises from an application made by the defendant/appellant dated 27th November, 2002 and filed on 29th November, 2002. In the application the defendant/appellant is praying this Court for –

“an Order setting aside the judgment of Rhodes-Vivour, J. of the Lagos High Court delivered on the 28th of March, 2002.”

Upon the ground that:-

“notwithstanding the fact that the learned trial Judge in Suit No. LD/2342/2000 was made aware of the fact that there was pending before the Supreme Court an application in which prayer sought by the applicant was for stay of proceedings of the said suit pending an appeal to the Supreme Court, the learned trial Judge proceeded nevertheless to hear and determine the said suit and thereafter entered judgment against the appellant on the 28th of March, 2002.”

In the affidavit in support of the application one Olasumbo Adejumo a legal practitioner deposed, inter alia, as follows:-

“4. That on 8th march, 2002 I appeared with Rasaq Ayinde Sanni Esq., my Principal on behalf of the applicant herein suit No. LD/2342/2002 at the High Court of Lagos State.

5. That Rasaq Ayinde Sanni Esq., my Principal informed Honourable Justice Bode Rhodes-Vivour, the learned trial Judge of a pending appeal at the Court of Appeal and a pending appeal for stay of proceedings at the Supreme Court.
6. That Honourable Justice Bode Rhodes-Vivour, the learned trial Judge still proceeded with the trial of the cases and fixed a date for judgment.
7. When it became apparent to our chambers that the learned trial Judge might want to proceed with the matter notwithstanding the application before the Court of Appeal and Supreme Court, our chambers wrote a letter to the Supreme Court Registry to confirm the existence of an appeal pending on the above matter.
8. That consequent upon our said letter the Supreme Court Registry dispatched its letter Ref. SC/66/2002/266 to the Honourable Judge which was received by the court on 27-3-02 but the learned trial Judge went ahead to deliver judgment even though he acknowledged receipt of the letter. Hereby attached is a copy of the said letter marked exhibit 001.”

A short history of this case leading to the application runs as follows: In suit No. LD/2342/2000 the plaintiff who is now respondent issued a writ of summons against the defendant on the 29th of August, 2000 claiming as per paragraph 18 of her statement of claim:-

“Whereof the plaintiff claims the sum of US Dollars 2,755,618.85 made up as follows:-

US Dollars

(i) Variations 1,747,493.36

(ii) For loss and expenses arising from Extension of Time

On Head Office 539,530.02

On preliminaries 228,000.00

On omitted items 1 (Pergolla and PABX) 15,864.20

On additional cost of Labour 1,018,076.61

Interest on delayed payments 14,937.06

Additional cost of variations 110,381.19

Additional works (Plaque) 912.19

Additional expenses due to rainy days 11,012.40

Additional cost apart from labour in

accelerating the completion date 89,092.50

Tentative contract sum 6,243,989.66

GRAND TOTAL 10,019,289.19

Less payment made to date by the

defendant to the plaintiff 7,263,670.34

Amount due and payable 2,755,618.85

Dated 28th day of August, 2000

And interest on the said sum at the rate of 21% per annum from 22nd June, 2000 until judgment and thereafter at the same rate until total liquidation.”

The defendant who is applicant before us filed a notice of preliminary objection. The notice reads:-

“TAKE NOTICE that the applicant intends to object to the trial of this suit filed against it by the respondent as the honourable court lacks jurisdiction to try same.

GROUND OF OBJECTION

The applicant by virtue of the DIPLOMATIC IMMUNITIES AND PRIVILEGES (AFRICAN REINSURANCE CORPORATION) ORDER 1985 has diplomatic immunity.”

Arguments on the preliminary objection were taken before B.O. Shitta-Bey J. of the High Court of Lagos State. In a ruling, which the learned Judge delivered on the 26th of October, 2000, she overruled the preliminary objection raised by the defendant and dismissed it. She then made an order that the defendant should file a statement of defence within seven days of the day of her ruling. The defendant was dissatisfied with this ruling and appealed to the Court of Appeal. Meanwhile the defendant brought an application before the Court of Appeal for a stay of the proceedings before Shitta-Bey J. This was after Shitta-Bey J. had in a ruling delivered on the 20th day of November, 2002 refused to grant stay. The Court of Appeal also refused to grant a stay and in the lead ruling of Galadima, JCA with which Oguntade and Aderemi JJ.CA agreed, the court said:-

“I have carefully considered this application. No reasonable case has been made for the grant of this application. The learned trial Judge directed the appellant/applicant to file its statement of defence and proceeded to fix hearing of substantive suit. I do not agree with the applicant that the compliance with that order would have the legal effect of a waiver of its immunity from suit The grounds of appeal in my view are not substantial to warrant my consideration of this application.

Accordingly this application fails and it is refused. I do make an order staying the proceedings of the lower court in suit No. LD/2342/2000 before SHITTA-BEY J. of the Lagos State High Court. The substantive case in that Court should commence in earnest and expeditiously too.

(italics mine).

The defendant has appealed to this court against this order of refusal of stay upon two grounds of appeal to wit:-

“(i) The Court of Appeal erred in law in refusing the application for stay of proceedings pending appeal on the ground articulated in the lead judgment of Galadima, JCA that the grounds of appeal filed are not substantial to warrant the consideration of the application when:

(A) The grounds of appeal challenge the determination of the trial Judge that in considering the issue of jurisdiction the Court can only look at the writ and statement of claim and at nothing else.

(B) They also challenged the declaration of the learned trial Judge that she would, and did refuse to look at or consider a statutory provision upon which the application was based.

(C) The grounds of appeal had complained of a denial of hearing resulting from a refusal to consider the legal basis of the objection.

(D) The grounds complained that the Judge was obliged to take judicial notice of the statutory

instrument cited and read before her.

(E) The grounds had contended that the fact that the defendant had previously agreed in writing to submit to the jurisdiction of the courts did not in law, amount to a submission to jurisdiction, and that submission is only binding when it is made directly to the court when the court is about to exercise jurisdiction.

(F) Galadima JCA had at page 6 of his original judgment said:

‘In the case at hand, the applicant has raised genuine, special or exceptional circumstance for a stay of proceedings’ and

‘I have carefully considered the grounds of appeal set out above, the grounds raised substantial questions of law to be decided on appeal. The applicant has established that he has competent and

arguable grounds of appeal on its merit. In the result, the application succeeds … ‘

(G) But the same learned Justice of appeal also wrote another page 6 to his judgment where he said:

‘No reasonable case has been made for the grant of this application and ‘The grounds of appeal are in my view not substantial to warrant my consideration of this application. Accordingly the application fails and it is refused.’

(i) The Court of Appeal erred in law in supposing that the filing of a statement of defence and raising the issue of jurisdiction therein does not amount to submission to jurisdiction when:

(A) Once a defendant files a statement of defence to an action he thereby ‘takes a step in the action’ and thereby submits to the jurisdiction of the court.

(B) If the defendant/applicant should file a defence now, then the whole purpose of the preliminary objection to jurisdiction would have been defeated.”

On 18th March, 2002 the defendant/appellant in this court filed a motion on notice dated the same date praying this court for the following orders:

“1. Leave extending the time within which the appellant/ applicant may apply for an order staying proceedings in suit No.LD/2342/2000 before B. Rhodes Vivour J. at the High Court of Lagos State pending the hearing and determination of the appellant/applicant’s appeal. An order of this Honourable court granting a stay of proceedings in suit No. LD/2342/2000 before B. Rhodes Vivour J. at the High Court of Lagos State pending the hearing and determination of the appellant/applicant’s appeal.

Leave extending the time within which the appellant may file a record for the hearing of the appeal.”

In the affidavit in support of the application sworn to by one Kolawole Lawal a legal practitioner the deponent averred, inter alia, as follows:

“5. That the appellant at the High Court by a notice of preliminary objection objected to the respondent’s action on the ground of the appellant’s diplomatic immunity. Attached herewith and marked exhibit Ai is the supplement to official Gazette No.5 Vol. 72 31st January, 1985 evidencing diplomatic immunity of the appellant.

6. That the High Court of Lagos ruled against the appellant and the appellant being dissatisfied with the ruling appealed against it in CNL/449/M/2000. Attached herewith and marked exhibits Band 1 respectively are copies of the said ruling and the notice of appeal in CAIL/449/M/2000 respectively.
7. That the appellant also applied to the High Court for an order staying proceedings pending the determination of the appeal at the Court of Appeal, Lagos. The High Court refused this application. A copy of the ruling is attached herewith and marked exhibit ‘C’.
8. That the appellant further applied to the Court of Appeal for an order granting stay of proceedings in the High Court by its application dated 24th November, 2000.
9. That on the 10th day of May, 2001, the Court of appeal, Lagos pronounced that the appellant’s application was refused but when the ruling was received it showed that Galadima JCA who wrote the ruling wrote two decisions one granting the application and the other one refusing it. Attached herewith and marked exhibit D is a copy of the ruling.
10. That the appellant being dissatisfied with the aforementioned ruling of the Court of Appeal has now further appealed to the Honourable Court to set aside the ruling (exhibit D) and in its stead to grant an order staying proceedings at the High Court Lagos pending appeal. Attached herewith and marked exhibits E & F are copies of the notice of appeal and treasury receipt in respect of the appeal before this Honourable Court.
11. After the motion for stay of proceedings was determined by the Court of Appeal, the case file was assigned in Chambers to Mrs. O.O. Adejumo of Counsel to file the notice of appeal and to take all necessary steps that would not render the appeal nugatory including the filing of motion to stay proceedings in the High Court and also the record for the hearing of the appeal.
12. That the said Mrs. O.O. Adejumo did file the notice of appeal but erroneously omitted to file a notice of motion for stay of proceedings and the record of appeal so that trial in the High Court would be suspended until after the disposal of the appeal.
13. That on the 8th March, 2002 parties were before Rhodes Vivour J. at the Lagos High Court in respect of the matter where counsel to the applicant applied that the matter be adjourned for the following reasons:-

(a) that the Court of Appeal has heard the argument on the brief filed on the substantive appeal and has been adjourned to 9th may, 2002 for judgment and

(b) that the Supreme Court is also seised of the appeal filed by the applicant to that Court challenging the refusal of the Court of Appeal to order a stay of proceedings.

and in both cases the hearing of the case would foist on the appellate court, a fait accompli if any of the appeals in the appellate courts turns out to be in favour of the applicant.

14. Counsel for the respondent among others informed the court that the respondent is an Israeli Company, which has brought its witness from Israel to give evidence.
15. The learned trial Judge adjourned to give a considered ruling but maintained that it would go on with hearing the evidence since the witness was from outside jurisdiction.
16. As it turned out the witness was not from Israel but a Nigerian in the employment of the respondent but the trial court allowed the trial to continue.
17. The respondent did not take part in the proceedings of the 8th March, 2002 since it has not filed a defence because it did not want to be accused of taken (sic) any further steps on the matter that would be considered to being a waiver of its immunity.
18. The trial Judge had adjourned the case to 21st March, 2002 to give a considered ruling and continue with the trial.
19. That unless this court orders a stay of proceedings at the High court, the High Court is determined and has in fact opened trial in the suit despite its being aware that there is an appeal before the Supreme Court to vary the order of the Court of Appeal in exhibit D.
20. That unless this Honourable Court grants the appellant’s application, the Lagos High Court will conclude trial in the suit No. LD/2342/2000 while there is an appeal pending at the Court of Appeal, Lagos and in the Supreme Court in respect of same suit.
21. That the appellant has complied with the condition of appeal. Attached and marked exhibits G and G1 are the notice of condition of appeal and treasury receipt.
22. That if the judgment of the Court of appeal turns out to be in favour of the appellant, the High court Lagos would have foisted a fait accompli on the Court of Appeal.”

While this application is still pending in this Court, on the 25th of March, 2002, the defendant brought yet another application in this court praying for:

“AN INTERIM ORDER that proceedings in suit No. LD/2324/2000 pending before B. Rhodes-Vivour J. High Court of Lagos State be stayed or that judgment be not delivered until the hearing of the motion on notice for stay of proceedings dated 18th of March, 2002 pending before the Supreme Court.

AND for such further order or orders as the Honourable Court may deem it fit to make in the circumstances.

GROUND FOR THE APPLICATION

The learned trial Judge B. Rhodes-Vivour J. has continued with trial in suit No. LD/2324/2000 and has in fact fixed a date for judgment 28th March, 2002 in spite of the substantive appeal and notice of motion for stay of proceedings dated 18th day of March, 2002 pending before the Supreme Court.”

That application too was supported by an affidavit the substance of which was that Rhodes-Vivour J. was informed that an application for stay was pending in this court and that notwithstanding that information the learned Judge proceeded to the hearing of the suit before him. Both applications were fixed for the 2nd of December for hearing in this court. Before that date, however, the defendant filed yet another motion on notice which is the subject matter of this ruling. The appeal that is pending before this court is against the decision of the Court of Appeal refusing to stay the proceedings in the High Court of Lagos State pending the determination of the appeal before it. That appeal is yet to be heard. The appellant however, filed applications before this court seeking to stay the same proceedings, an order which she failed to obtain in the Court of Appeal and in respect of which she has filed the appeal to this court. As both the appeal to this court and the application brought in this court for stay of the proceedings in the High Court are yet to be heard, I will refrain from commenting any further on them.

When both applications for stay were to be heard in this court on 2nd December, 2002, Chief G.O.K. Ajayi SAN insisted that the latest application the subject matter of this ruling be considered first. He moved the court for an order setting aside the judgment of Rhodes Vivour J. given on 28th of March, 2002 on the ground that the judgment was given notwithstanding the fact that the learned Judge was made aware before delivering his judgment that application was pending before the Supreme Court for stay of proceedings. He relied on the affidavit in support, the penultimate paragraph of which I have set out earlier in this ruling. He submitted that the learned trial Judge’s conduct amounted to judicial impertinence and urged the court to set aside the judgment given by Rhodes-Vivour J. on 28th March, 2002 in this matter. He invoked the inherent jurisdiction of this court to make such an order.

When questioned by the court to show the authorities in support of his application, he was unable to refer the court to any authority, his attitude was that the court must know the authorities and that all lawyers knew the authorities governing such an application.

Mr. Joseph SAN for the plaintiff/respondent informed the court and this is not denied by Chief Ajayi – that the defendant had appealed against the judgment of Rhodes-Vivour J. on 2nd April, 2002 and added that ground (1) of appeal in that appeal raised the very issue that is to be considered in this application. Learned senior Advocate opined that the application now before the court to set aside the judgment which is filed on 29th November, 2002 was brought too late and that the defendant/appellant had taken a fresh step in the matter, that is, lodging an appeal. Learned Counsel referred to Ojukwu’s case (1986) 1NWLR (Pt. 18) 621 and submitted that that case dealt with self help by a party. That is not the case here. The learned senior Advocate further remarked that the applicant had not shown the constitutional provision that allowed this court to entertain an appeal direct from the High Court to this court. He referred to the order of the Court of Appeal which enjoined the court below to hear the suit with dispatch and observed that that order still subsists as it has not been set aside by this court. He also informed the court that the Court of Appeal on 27/5/02 dismissed the defendant’s appeal to it on the issue of jurisdiction. Learned Counsel submitted that present application is an abuse of the process of Court.

Chief Ajayi SAN in reply submitted that the action taken by the trial High Court was to pre-empt this court and ought to be set aside ex debito justitae. He submitted that the present application was an appeal to the inherent jurisdiction of the court to nullify and undo that which any person had done to thwart the jurisdiction of this court going by the Constitution. Learned senior Advocate confirmed that the defendant had filed an appeal to the Court of Appeal against the further judgment of Rhodes-Vivour J. and had applied to Rhodes-Vivour J. for stay of execution. Chief Ajayi submitted that this present application is not an abuse of process of court.

From the facts made available to us by the affidavit in support of the defendant’s application and the facts made known by Mr. Joseph from the Bar, which facts are not controverted by learned senior Advocate for the defendant the following facts emerged:

(1) the plaintiff sued the defendant claiming various reliefs in the High Court of Lagos State; (2) the plaintiff filed a statement of claim; (3) the defendant did not file a statement of defence; rather the defendant filed a notice of preliminary objection to the jurisdiction of the court on the ground of diplomatic immunity; (4) the issue raised in the notice of preliminary objection was taken first by the High Court and after addresses by learned counsel for the parties, dismissed the preliminary objection and ordered that the defendant should file a statement of defence within seven days; (5) the defendant appealed against this decision to the Court of Appeal and applied for a stay of proceedings in the High Court; (6) the High Court refused the application for stay, whereupon the defendant made a similar application to the Court of Appeal. The Court of Appeal also refused the application for stay of proceedings pending appeal. The defendant appealed against that decision to this court; (7) following the filing of the appeal to this court the defendant filed two applications in this court for stay of proceedings pending appeal against the decision of the Court of Appeal refusing stay of proceedings; (8) while the motions to this Court are yet to be heard proceedings in the suit commenced before Rhodes-Vivour J. in the High Court of Lagos State notwithstanding that the learned Judge was informed of the applications pending in this court; (9) the proceedings before Rhodes Vivour J. concluded on 28/3/02 when judgment in the suit was entered in favour of the plaintiff in terms of her claims; (10) the defendant appealed against that judgment on 2/4/02 and one of the grounds of appeal raises the very issue that is to be determined in the application now on hand; (11) that the defendant has again applied for stay of execution of the judgment of Rhodes- Vivour J; (12) that the Court of Appeal on 27/5/02 dismissed the defendant’s appeal to it on the issue of jurisdiction.

It is after all these events that the defendant on 29th November, 2002 filed in this court another application which is the application now under consideration seeking to set aside the judgment of Rhodes Vivour J. on the ground that the proceedings before the learned Judge were made with a view to thwarting or render nugatory whatever decision this court might give in the pending application before it for stay of proceedings. In the circumstances surrounding this application I think Mr. Joseph is right to say that this present application is indeed an abuse of the process of court. Not only has the defendant appealed against the judgment now sought to be set aside, it has even applied for stay of execution of that judgment. The appeal to the Court of Appeal on the issue of jurisdiction had been determined against the defendant and it was pending the determination of that appeal that various applications had been made by the defendant for stay of proceedings. Indeed the defendant’s appeal, pending in this court, is to reverse the refusal of the Court of Appeal to stay proceedings in the case pending the judgment of the Court of Appeal in the appeal on jurisdiction which appeal has now been determined against the defendant. I do not know what the defendant stands to gain by the present application having regard to all the circumstances.”

Before concluding this ruling, I need to comment, rather briefly, on the conduct of learned leading counsel for the defendant. Learned Counsel was unable to place before this court any authority in support of his application. His attitude was “everyone knows the law on the point.” Such an attitude can not be helpful to any court. It would be expected that counsel, when coming to move such an application would be fully prepared to assist the court in arriving at a just decision. Regrettable to say we did not have that assistance from learned leading counsel to the defendant in this case.

Having regard to all the steps that have been taken by the defendant in this matter, particularly since judgment was delivered by Rhodes Vivour J., it is clearly an abuse of process of court for her now to ask us to set aside that judgment that is already on appeal to the Court of Appeal, all in the exercise of the coercive power of this court – see: Okafor v. Att. Gen. of Anambra State (1991) 6NWLR (pt. 200) 659, 680-681, HD, Per KARIBI-WHYTE, JSC; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264)156 at 188 E-O, Per KARIBI-WHYTE, JSC. I think it would be a wrong exercise of such jurisdiction to accede to such a request. This application, therefore, fails and it is dismissed by me with N1,000.00 cost in favour of the plaintiff/respondent.

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SC.66/2002