Shell Petroleum Development Company Nigeria Limited & Anor V. X.m. Federal Limited & Anor (2006)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

I should have had no difficulty or hesitation in dismissing this appeal, brevi manu, on a “bench ruling” on the ground that it is absolutely frivolous in the extreme. But as usual, this court, being the apex court of the land, I am constrained to deal with the appeal on its merit having regard to the issues formulated by the parties in their respective briefs of argument for determination.

This is an appeal against the decision of the Court of Appeal, Lagos Division (hereinafter called “the court below”) delivered on 4th February, 2003 dismissing the appellants’ appeal from an interlocutory decision of the Federal High Court in its ruling delivered on 8th October, 1998. I will in summary and for the avoidance of any doubt state briefly as follows: The respondents as plaintiffs in the Federal High Court, Lagos on 26th July, 1995 filed a writ of summons together with a statement of claim claiming against the defendants/appellants a declaration and an order of perpetual injunction. The appellants in reaction challenged the competence of the said suit in limine- praying that the suit be struck out or dismissed on the ground that no reasonable cause of action was disclosed. After hearing arguments from both learned counsel for the parties, the learned trial Judge Odunowo, J. in a considered ruling delivered on 12th June, 1996 dismissed the application. I note that the respondents filed a fresh statement of claim on 21st June, 1996 after pleadings had been ordered by the trial court. The appellants on 15th November, 1996 filed their amended statement of defence. Notwithstanding the said ruling of 12th June, 1996, the appellants on 27th January, 1997 filed a fresh application seeking:

“An order dismissing or alternatively striking out the plaintiffs writ of summons and statement of claim on the ground that the court lacks jurisdiction to hear the suit.”

The ground for the application is stated to be:

“… that the plaintiff’s writ of summons and statement of claim disclosed no reasonable cause of action.” See page 38 of the records. It could be seen at once that this ground is similar to the application that gave rise to the said ruling of 12th June, 1996. The respondents filed a preliminary objection and prayed that:

“… the prayer being sought in the said motion dated 27th January, 1997 had been distinctly raised and determined by the Federal High Court in its ruling delivered on the 12th June, 1996 and cannot be relitigated in this civil suit.”

One of the arguments proffered by the appellants at the hearing of the objection was/is that “the ruling of the 12th June, 1996 was delivered without jurisdiction”.

However, the learned trial Judge, after hearing arguments on both the application and the preliminary objection, on 8th October, 1998, in a considered ruling dismissed the appellants’ said application. He finally stated at page 14 of the records, as follows:

“… after a sober reflection on the facts, arguments and circumstances of this application, I have no difficulty whatsoever in reaching the conclusion that the defendants’ motion is lacking in merit and it is hereby dismissed. It follows that the plaintiffs’ preliminary objection succeeds and it is accordingly hereby upheld. The case shall proceed to trial as previously scheduled. That is to say that before the appellants brought their said second application, the learned trial Judge had fixed the case for hearing to 30th October, 1996 as the parties had filed and exchanged their pleadings. But the appellants refused to abide by the said fixture. They filed an appeal to the court below, not against the earlier ruling of 12th June, 1996; but against the said later ruling of 8th October, 1998. I note that before concluding the said-ruling of 8th October, 1998, the learned trial Judge at pages 13 and 14 of the records stated, inter alia, as follows:

“Firstly, I have no doubt that the defendants’ motion of 27th January, 1997 is virtually the same as the earlier one which culminated in my ruling of 12th June, 1996.

Secondly, it will be recalled that the matter had earlier been set down for trial on 30th October, 1996, which date was subsequently postponed to 30th January, 1997 for settlement or trial. It was after that date that the defendants brought their curious motion of 27th January, 1998. All the authorities are in agreement that once issues have been joined the objection based on want of reasonable cause of action is no longer available. So long as the statement of claim discloses some cause of action the application to strike out the action cannot succeed on the grounds that the case is weak and not likely to succeed.

Finally, Mr. Ademola is quite right in his submission that the defendants are estopped from bringing the present application, especially since by the time the said application was filed issues had already been joined by the parties …”

The court below per Oguntade, JCA (as he then was) at pages 158, 159 and 160 of the records, stated inter alia, as follows:

“It seems to me that the defendants are merely chasing shadows here rather than substance. They appear to be clinging to technicality at the expense of justice. The important thing to consider is the substance or the material in the two statements of claim…

In the ruling delivered on 8-10-98, the lower court declined to consider the latter application by the defendants on the ground that it had considered in the ruling delivered on 12-6-96 the matters agitated by the latter application brought by the defendants. The defendants’ appeal is against the ruling of 8-10-98 and not against the ruling of 12-6-96.

Clearly therefore, the defendants cannot be allowed to use the appeal against a ruling of 8-10-98 as a platform to attack the ruling made on 12-6-96. Appellants’ issue 3 is therefore struck out. This appeal has no merit. It is dismissed with N8,500.00 costs in favour of the respondents”. Dissatisfied with the said decision of the court below, the appellants have appealed to this court on five (5) grounds of appeal.

I note that the 5th ground is also numbered 4. The appellants have formulated three (3) issues for determination, namely:

“2.1 Whether or not the court below was not in error in holding that the appellants’ application, challenging the jurisdiction of the court constitute an abuse of court process which thereby preclude the court from entertaining the application Grounds 2 and 5. Whether the Federal High Court has the jurisdiction to determine and grant the relief’s claimed by the respondents in that court Whether the Court of Appeal was not in error when it struck out the appellants’ issue No.3 (which raised a jurisdictional issue) on the sole ground that the appeal before it was not filed against a decision of the trial court which had determined that issue against the appellants.”The respondents also formulated three issues for determination namely:

“4.01 Issue One

Whether or not the Court of Appeal was in error in holding that the appellants’ application challenging the jurisdiction of the trial court for want of reasonable cause of action, after issues had been joined and the matter even set down for trial, constituted an abuse of the court’s process.

4.02 Issue Two

Whether or not the Court of Appeal was right in holding that the Federal High Court has the statutory jurisdiction to entertain this suit arising out of and relating to arms license upgrade and importation of arms and ammunition.

4. 03 Issue three

Whether or not the Court of Appeal was in error when it struck out the appellants’ issue No.3 for not arising from the ruling appealed against at the Court of Appeal”. As can be seen from the said issues of the parties, although differently worded, they are similar in substance. However, in my respectful view, the only issue that is germane or relevant in the determination of this appeal is issue 3 of the parties. I have earlier in this judgment gone through in some detail what transpired in the “history” of the subject-matter of this appeal. For the avoidance of doubt, the appeal to the court below was against the said ruling of the trial court of 8th October, 1998 and not that of 12th June, 1996. I have earlier in this judgment reproduced part of the pronouncement of the court below at page 160 in particular in support of this fact that rather than the appellants appealing against the ruling of 12th June, 1996 laboured in vain, so to speak, and proceeded to appeal against that of 8th October, 1998 which was a ruling that the trial court refused to revisit a subject matter of the latter application of the appellants which it had already decided and ruled upon. Period! In other words, until the decision of the trial court of 12th June, 1996, is appealed against and set aside by the court below, that decision subsists and is binding on the appellants in particular or the parties in general. Surely, the court below was justified and right in my respectful view, in its holding that the trial court’s decision of 12th June, 1996 operated as an estoppel to bar the appellants from making the application of 2nd January, 1997 which gave rise to the ruling of 8th October, 1998. I so hold. Since I am unable to fault the decision of the court below in this regard, I have no option than to dismiss this appeal for being unmeritorious and not worthy of my wasting further time and energy, in considering and determining the other two (2) issues of the parties which become or are non-issues at all in the circumstances. However, in conclusion, I wish to state that it has been firmly settled in a line of decided cases of what “a reasonable cause of action” means. In the case of Dr. Irene Thomas & Ors. v. The Most Rev. Olufosoye (1986) 1 NWLR (Pt.18) 669 at 682, the term was defined as a cause of action with a chance of success per Obaseki, JSC. When does a claim disclose a reasonable cause of action In the case of Republic of Peru v. Peruvian Guano Co. (1887) 36 Ch. 489, Chitty, J. said inter alia:

“There is some difficulty in affixing a practice meaning to the term ‘reasonable cause of action’ used in Order XXV, rule 4 in point of law,… every cause of action, is a reasonable cause”.

Now, what then is a cause of action Lord Esher, M.R. in the case of Read v. Brown (1888) 22 Q.B.D 128 at 131/151 stated what the term denotes or means thus:

“Every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to be proved”.

This court in the case of Lasisi Fadare & ors. v. Attorney-General of Oyo State (1982) 1 All NLR (Pt.1) 4 at 41 per Aniagolu, JSC, referred to the above definition.

In the case of Amodu v. Dr. Amode & Kwara State College of Technology (1990) 5 NWLR (Pt.150) 356 at 367; (1990) 9 SCNJ at 8-9, cause of action, was described to mean: “all those things necessary to give a right of action whether they are to be done by the plaintiff or a third person”. The court referred to the case of Harnaman v. Smith (1855) 10 Exch. 659 at 666 – per Parker, B. See also the case of Ayanboye & 2 Ors. v. Balogun (1990) 5 NWLR (Pt.151) 392; (1990) 9 SCNJ 23 at 33.

In the case of Chief Afolayan v. Oba Ogunrinde & 3 Ors. (1990) 1 NWLR (Pt.127) 369 at 371; (1990) 2 SCNJ 62, Karibi-Whyte, JSC, stated that a cause of action means:

“(a) a cause of complaints;

(b) a civil right or obligation for the determination by a court of law;

(c) a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine.”

His Lordship further stated that it is a factual situation which enables one person to obtain a remedy from another in court with respect to injury. That it consists of every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment. See also the case of Ogbimi v. Mrs. Beauty Olola & 3 0rs. (1993) 7 NWLR (Pt.304) 128; (1993) 7 SCNJ. (Pt.11) 447 at 454 by the learned jurist referring to some other cases in this regard.

In the case of Attorney-General, Kwara State. & 2 Ors. v. Olawale (1993) 1 NWLR (Pt.272) 645 at 663, (1993) 1 SCNJ 208 at 221, Nnaemeka-Agu, JSC, observed as follows: ‘

“I would be content in this respect to adopt the definition of the expression by Diplock, LJ. in Letang v. Cooper (1965) 1 Q.B. 232 at 242 where he defined it as simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”.

In the earlier case of Oshoboja v. Amuda & Ors. (1992) 6 NWLR (Pt.250) 690, (1992) 7 SCNJ (Pt.11) 317 at 336, this court again thoroughly dealt with this issue. It held also that a reasonable cause of action means a cause of action with some chances of success, when only the allegations in the statement of claim are considered. For cause of action, it cited or referred to several other cases in this regard. Finally (although I can go on and on) in the case of Drummond Jackson v. British Medical Associations & Ors. (1970) 1 WLR 668 at 696 C.A., Lord Pearson stated as follows:

“First there is in paragraph (1)(a) of the rule the expression ‘reasonable cause of action’ to which Lindley, M.R. called attention in Hubbuck & Sons Ltd. v. Wilkinson, Heywood & Clark Ltd. (1899) 1 Q.B. 86 pp. 90-91. No exact paraphrase can be given, but I think ‘reasonable cause of action means a cause of action with some chances of success when (as required by paragraph (2) of the rule) only the allegations in the pleading are considered if it is found that the alleged cause of action is to fail, the statement of claim should be struck out”.

See recently the case of Attorney-General of the Federation v. ANPP & 2 Ors. (2003) 12 SCNJ 67 at 83; (2003) 18 NWLR (Pt.851) 182 per Tobi, JSC.

In Obi Okoye – Essays on Civil Proceedings, page 224 At 110, defined it thus –

“By a cause of action is meant any facts or series of facts which are complete in themselves to found a claim or relief’. See also the case of Dyson v. Attorney-General (1911) 1 K.B. 410 at 419 per Multon, LJ. and Bullen & Leak & Jacobs Precedents of Pleadings, 12th Edition, page 142 and the cases referred to therein. I say no more. But I believe the learned counsel for the appellants “may” see if the learned trial Judge’s decision was on a sound footing or not. Costs follow the event. The respondents are entitled to costs fixed at N 10,000.00 (ten thousand naira) payable to them by the appellants.

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SC.95/2003