The Shell Petroleum Development Company Of Nigeria Limited V. Ojiowhor Monday Amadi & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

Chief Richard Akinjide, SAN, learned counsel for the appellant/applicant filed two applications in this court. They are:

1. Motion on Notice filed on 3/9/10
2. Motion on Notice filed on 27/5/10

Learned counsel for the 1st and 2nd sets of respondents, Mr. L. E. Nwosu, SAN filed a preliminary objection to both applications.

Learned counsel for the 3rd set of claimants respondents, Mr. F. A. Oso, SAN and Learned Counsel for the 3rd set of defendant’s/respondents, Mr. J. T. O. Ogoduma both associated themselves with the submissions of Mr. L. E. Nwosu SAN, on the preliminary objection. I have examined the processes filed by both sides and I am of the view that since the applications are interwoven especially on facts, for better understanding and clarity, one Ruling would suffice. I shall briefly set out the facts before I proceed to examine the issues in the preliminary objection and the applications.

In 1958 the claimants and the appellant/applicant executed a Deed of Lease over a large area of land. The Lease was for 99 years commencing on 9/2/57. The claimants were seeking forfeiture of the Lease on the grounds that:

(a) There was breach of the terms of the Lease regarding the payment of rent and obligation not to sublet without the consent of the Lessor,

(b) There was allegation of challenge to title. The High Court found in favour of the claimants and declared as follows:

1. A declaration to the effect that at all material time, the Plaintiff as customary owners are the Landlords of the 2nd defendants (i.e. the appellant/applicant) in respect of that piece or parcel of land lying and situate at Okoroshe in Obio/Akpor Local Government Area of Rivers State comprising 153.5 acres as shown on Survey Plan No.13AN/112/57 and contained in a Deed of yearly Tenancy made on 3/3/58 between Chief Elisha Njo Nwanwa Amos Amadi and the 2nd defendants described in the said Deed as Shell BP Petroleum Development Company of Nigeria Limited which Deed is registered as No.62 at page 62 in Volume 18 of the Register at the Lands Registry in the office at Enugu now kept at the Office in Port Harcourt.
2. A declaration that the acts of the 2nd defendant in subletting part of the said land to third parties without the consent of the Plaintiffs and also for not paying its rent as agreed under the Deed of Tenancy constituted fundamental breach of the 2nd defendants covenants contained in the said Deed of Tenancy and the 2nd defendant has thereby forfeited its rights as a tenant thereof.
3. A declaration that the said Deed of Tenancy has been determined by reason of the 2nd defendant act of obtaining a Certificate of Occupancy in 1998 which aborted the tenancy.
4. A declaration that upon the coming into effect of the Land use Act 1978 the Plaintiffs were deemed to be granted the right of occupancy over the land covered by the Deed of Tenancy and therefore entitled to be granted the statutory right of occupancy in respect of the said land.
5. A declaration that the clandestine act of the 2nd defendant in obtaining a Certificate of Occupancy covering the entire parcel of land for which they had not paid any consideration to the Plaintiff while purporting to be the owner of the land constituted a challenge to the title of the Plaintiffs as Landlords of the 2nd defendant and for which challenge the 2nd defendant has forfeited its right as a tenant in respect of the land.
6. A declaration that the Certificate of Occupancy dated 15/3/99 and registered as NO.24 at page 24 in volume 258 of the Lands Registry in Port Harcourt over the said parcel of land and surreptitiously obtained by the 2nd defendant is unconstitutional, null and void and of no effect whatsoever.
7. A declaration that the said Certificate of Occupancy in so far as it was granted to the 2nd defendant without a prior revocation of the deemed right of statutory right of occupancy vested in the Plaintiffs, the same is null and void and is of no effect whatsoever.
8. An order setting aside the Certificate of Occupancy is hereby granted.
9. An order of forfeiture is hereby granted against the 2nd defendant in respect of the land subject matter of this suit as a result of various fundamental breaches and challenges of the Plaintiff’s right as landlords of the said land.
10. An order of perpetual injunction is hereby granted restraining the Defendant by themselves, their servants, privies, agents or howsoever from further entry into the said Plaintiff’s land or from further denying the title of the Plaintiffs as Landlords over the said parcel of land.
11. IN THE ALTERNATIVE to the last two reliefs above, if the 2nd defendant desires to stay on the land it should pay to the Plaintiffs the sum of N40,000,000 (forty million Naira) per acre being a fair market value of the land in full and final settlement of the Plaintiffs right over the unexpired term of the lease that has been determined.

In confirming the judgment of the trial court the Court of Appeal said:

In summary this appeal substantially lacks merit and it is hereby dismissed. I allow the appeal only in respect of Appellants Issue 8. I hereby affirm all the findings and orders made by the learned trial Judge in the suit No. PHC/1198/2005 except the order for alternative relief which I hereby set aside. Costs of N60,000.00 are hereby awarded to the 1st and 2nd Sets of respondents and N30, 000.00 to the 3rd Set of respondents.

The above gave rise to the applications filed by Chief R. Akinjide SAN. On the 8th day of February, 2011 Learned Counsel for the appellant/applicant moved both applications. That is Motions filed on 27/5/10 and 3/9/10. He urged us to grant both applications. Reference was made to the affidavits in support and his written address which he adopted. Finally he urged us to dismiss all preliminary objections. Mr. L. E. Nwosu, SAN relied on his preliminary objection filed on 22/11/10, his affidavits, counter affidavits and written address. He observed that both courts below found the appellant/applicant to be a trespasser and so it is not entitled to stay of execution. He urged us to refuse both applications.

Learned Counsel for the 3rd claimants/respondent, Mr. F. A. Oso, SAN associated himself with Mr. L. E. Nwosu, SAN’s submissions on his preliminary objection filed on 22/11/10 and Reply argument filed on 20/10/10. He urged us to dismiss both applications.

Learned counsel for the 3rd set of defendants/respondents associated himself with the submissions of MR. L. E. Nwosu, SAN on the preliminary objection.

Order 2 rule 9 of the Supreme Court Rules provide for the filing of Preliminary objections.

Preliminary objections are filed against the hearing of an appeal and so once it succeeds the appeal no longer exists. All too often we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of Appeal should be filed. In this case a Preliminary objection was properly filed, because if it succeeds the appeal comes to an end. See:

NEPA v. Ango 2001 15 NWLR pt 737 p 627

The Appellants/applicants application filed on the 3rd of September, 2010 seeks the following orders from this court:

1. Granting leave to the 2nd defendant/appellant/applicant to file and argue three (3) additional grounds of Appeal herein attached as exhibit SPDC 1;
2. Deeming as properly filed and served and filed copy of the additional grounds of Appeal filed on the 3rd of September, 2010.
3. Extending the time within which the 2nd defendant/Appellant/applicant may file its Brief of argument in this appeal.

An 18 paragraph affidavit was filed in support and an exhibit, SPDC 1 attached.

Mr. L. E. Nwosu, SAN filed a 16 paragraph counter-affidavit. Learned Counsel for the 3rd claimant/respondent and for the 3rd set of defendants/respondents did not file counter-affidavits. Learned Counsel for the 1st and 2nd sets of respondents, Mr. L. E. Nwosu SAN, and Mr. F.A. Oso, SAN learned Counsel for the 3rd set of Respondents filed preliminary objections.

The Notice of Preliminary objection filed by Mr. L. E. Nwosu, SAN was brought under Order 2 Rules 9 (1), 28 (1) and 29 (1) and (2), Order 8 rules 2(7), 11 and 12 (4) Rules of the Supreme Court.

I shall now state the facts relevant to both applications. The judgment of the Court of Appeal was delivered on the 15th of April 2010 and on the same day the appellant/applicant filed a Notice of Appeal containing two grounds of Appeal of Law. The appeal was entered in the Supreme Court on the 13th of May 2010. This process was filed by counsel for the appellant/applicant in the Court of Appeal, Chief Okpoko, SAN. Chief R. Akinjide SAN was briefed and he filed Notice of Appeal No.2 dated 25/6/10. He filed a Motion in the Court of Appeal seeking leave to appeal on grounds other than Law. The Court of Appeal heard and granted the application within 3 months of the judgment delivered on 15/4/10. It was granted on 8/7/10. By this application filed on 3/9/10 learned counsel for the appellant/applicant seeks in the main to add few more grounds of appeal to the 22 grounds already filed.

In his written address learned counsel for the 1st and 2nd sets of respondents, Mr. L. E. Nwosu, SAN observed that after the Notice of Appeal containing two grounds of appeal was filed in the Court of Appeal and entered in the Supreme Court on 13/5/10, the Court of Appeal was wrong to grant the appellant/applicant Leave thereafter to file twenty grounds of Appeal. Relying on Order 8 Rule 11 of the Supreme Court Rules he submitted that where a Notice of Appeal before the Court of Appeal is incompetent an amendment of the Notice of Appeal at the Supreme Court to file additional grounds of Appeal will not cure the defect. Reliance was placed on Cooperative and Commerce Bank Plc v. Ekperi 2007 3 NWLR pt 1022 p 493.

He urged us to dismiss the application. Both Mr. F A. Oso, SAN, and Mr J. T. O. Ogoduma associated themselves with the submissions of Mr. L. E. Nwosu, SAN.

Learned counsel for the appellant/applicant conceded that the -1st Notice of Appeal was entered in the Supreme Court on 13/5/10 but observed that the Record transmitted to the Supreme Court was incomplete as no exhibits were forwarded to the Supreme Court. He further observed that in the absence of original documents admitted as exhibits, it cannot be said that the appeal was entered on 13/5/10. Reliance was placed on Order 8 rule 10 (5) of the Supreme Court Rules.

Olorunyolemi v. Akhagbe 2010 8 NWLR pt 1195 p 48.

In further argument, he submitted that even if the appeal was entered in the Supreme Court on 13/5/10 the Court of Appeal still has jurisdiction to grant Leave to appeal if leave was granted within 3 months. Reference was made to Section 27 of the Supreme Court Act.

Finally, learned Counsel observed that after the Court of Appeal granted Leave to the appellant to file 2nd Notice of Appeal, there was no appeal and so the 1st, 2nd and 3rd sets of claimants/respondents cannot challenge that decision by a preliminary objection.

He urged us to dismiss the Preliminary objection. Order 8 rule 10 (5) of the Supreme Court Rules calls for interpretation. It reads:

“All original documents delivered to the court below under this rule shall remain in the custody of the court below until the record of appeal has been prepared and shall then be forwarded with the record to the Registrar and shall remain in the custody of the court until the determination of the appeal”

In Olorunyolemi v. Akhagbe 2010 8 NWLR pt 1195 p 48

The Record of Appeal was transmitted without the exhibits. Onnoghen, JSC held that the record was incomplete. In a letter reference CA/PH/51//2008/T/1 written by the Deputy Chief Registrar of the Court of Appeal to the Chief Registrar Supreme Court, in item 2 it states that No Exhibit was forwarded.

My Lords, the Record of Appeal transmitted to the Court of Appeal on 13/5/10 was incomplete due to the fact that the exhibits were not transmitted along with the Record. Accordingly in the absence of documents admitted as Exhibits an appeal was not entered on 13/5/10. The appeal was entered on 24/8/10 when the supplementary Record of Appeal was received in the Supreme Court. That document contained all documents, processes that were left out in the Record of Appeal transmitted to the Supreme Court on 13/5/10.

Section 27 (2) (a) and (b) and subsections (3) and (4) of the Supreme Court Act states that:

(2) the period specified for the giving of notice of appeal or notice of application for leave to appeal are:

(a) In an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.

(b) In an appeal in a criminal case, thirty days from the date of the decision appealed against.

(3) where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period specified in subsection (2) of this section be allowed a further period of fifteen days from the date of the hearing of the application by the court below, to make an application to the Supreme Court.

(4) the Supreme Court may extend the period prescribed in subsection (2) of this section.

My Lords, the clear interpretation of the above is that where the decision of the Court of Appeal is final the Supreme Court vests in the Court of Appeal jurisdiction to grant a Litigant Leave to appeal within 3 months of the decision. In this case the final decision of the Court of Appeal was delivered on 15/4/10. The Court of Appeal granted leave to appeal on 8/7/10. The 2nd Notice of Appeal was thus properly filed.

It would amount to an abuse of process if counsel improperly uses the judicial process to the annoyance of the adverse party, and the administration of justice. See:

Okorodudu v. Okoromadu 1977 3 SC p 21

Ekpong v. Okon 2002 5 NWLR pt 760 p 445

Agwasim v Ojichie 2004 10 NWLR pt 882 p 613

On 8/7/10 the Court of Appeal granted the appellant/applicant Leave to appeal to this court on grounds other than Law. Rather than appeal, learned counsel for the 1st, 2nd and 3rd sets of claimants/respondents filed this preliminary objection. By the clear provisions of Section 233 of the Constitution, a party dissatisfied with a decision of the Court of Appeal cannot challenge the decision by filing and arguing a Preliminary objection. He can only challenge the decision by an appeal.

Leave granted on 8/7/10 by the Court of Appeal is inviolate and is still subsisting in the absence of an appeal. The Preliminary objection on this issue is an abuse of process and is hereby dismissed.

Leave is hereby granted the appellant/applicant to file three additional grounds of appeal. Time is extended by 60 days from today to enable Learned Counsel for the appellant/applicant file the Appellant’s Brief of argument and Amended Notice of Appeal.

In the light of the fact that an appeal is properly in place, I shall now consider the appellants/applicants second, and final application, to which there are similar preliminary objections filed by Learned Counsel for the 1st 2nd and 3rd sets of claimants/respondents. The application reads:

1. An Order staying execution and or enforcement of the judgment of the High Court of Rivers State sitting in Port Harcourt dated 25/5/07 delivered by A. Enebeli J in Suit No. PHC/1198/2005 (Ojiowhor Monday Amadi and Ors v. The shell Petroleum Development Company of Nigeria Ltd and Ors) as confirmed by and/or the judgment of the Court of Appeal, Port Harcourt dated 15/4/10 in Appeal, CA/PH/51/08 pending the determination by the Supreme Court of Nigeria of the appeal filed by the appellant against the judgment of the Court of Appeal aforesaid. Further or in the alternative:
2. An Order or injunction for the preservation of the Subject matter and/or preservation of the status quo by the parties pending the determination of the Applicants appeal by the Supreme Court against the judgment of the Court of Appeal Port Harcourt Division dated 15/4/10 in Appeal No. CA/PH/51/08 (the Shell Petroleum Development Company of Nigeria Ltd. v Ojiowhor Monday Amadi and Ors).

Learned counsel for the 3rd set of respondents and the 3rd set of defendant/respondents associated themselves with the submission of MR L. E. NWOSU SAN.

I have read the affidavits filed in support and the counter affidavits. I also considered the written submissions on this issue which is for stay of execution, the facts then and now is that after the appellant/applicant was granted a 99 years lease by the claimants in 1958 it built on the land the Shell Residential Area. Paragraph 20 of the further affidavit of Omonigho Oziegbe shows the investments made by the appellant/applicant on the land. It reads:

(a) There are about two hundred and forty-three (243) fully and tastefully furnished four (4) and three (3) Bedrooms Bungalow Housing units within the shell Residential Area.

(b) There are also fully detached Guest Houses comprising of fully and tastefully furnished 120 rooms within the shell Residential Area.

(c) There are a couple of Management Offices and conference offices within the shell Residential Area.

(d) There is a specially maintained full size football pitch within the shell Residential Area.

(e) A fully equipped children clinic managed by expatriates and Nigerian medical personnel.

(f) A dedicated Power Generating Station run on gas turbines.

(g) Mega Water Treatment Plant with highly advanced technologies.

(h) Various Olympic size Lawn Tennis Courts.

(i) Fire Station with state of the act equipments.

(j) High Power Data Communication station for Satellite, internet and telecommunication.

(k) Police Post

(l) Three (3) Mega Supermarkets

(m) Olympic size swimming pool

(n) A specially maintained full size Golf course.

And in paragraph 21 of the same affidavit it is deposed that:

“The Shell Residential Area is serviced and maintained by over 1500 (one thousand five hundred) employees and contract staff (of which 90% are Nigerians) who will immediately be thrown out of employment once this application is refused.

Learned counsel for the 1st and 2nd claimants/respondents argued in his preliminary objection that the application for stay of execution is incompetent. He observed that twelve of the fourteen reliefs claimed and awarded at the trial court and affirmed by the Court of Appeal are declaratory reliefs, contending that a declaratory relief cannot be subject of an application for stay of execution. He further observed that the motion for stay of execution is not supported by any appeal on recondite points of law such that will become prima facie arguable. Finally learned counsel observed that by concurrent decision of the two courts below, the appellant/applicant is adjudged to have forfeited its tenancy on the subject property contending that they have become trespassers and so cannot seek an equitable relief by way of stay of execution to perpetrate the trespass. He urged us to dismiss the application.

Learned counsel for the appellant/applicant observed that a stay of execution would be granted if the applicant is able to show special circumstances. He observed that affidavit evidence shows that some irreversible circumstances would arise and substantial injustice would be done to the appellant/respondent if this application is refused and it eventually succeeds on appeal.. He further observed that there are infact recondite points of law. Reference was made to Ajomale v. Yaduat (No2) 1991 5 NWLR pt.191 p.266.

Finally learned counsel observed that the balance of convenience is in favour of the appellant/applicant in that the 1st and 2nd sets of respondents would loose nothing if the application is refused, but the appellant/applicant will lose everything most of which cannot be compensated in costs. He urged us to grant the application. The appellant/applicant was unable to argue an application for stay of execution in the Court of Appeal before the appeal was entered in this Court. That explains this application.

This court has inherent powers to stay the execution of a judgment and the exercise of that power is entirely at the discretion of this court. As with all discretionary powers it must be exercised judicially and judiciously. That is to say with correct and convincing reasons. Exercise of discretion calls for the judge considering the rules governing the issue and not acting arbitrarily or as he likes. See

Okafor v. Nnaife 1987 4 NWLR pt.64 p.129

Balogun v. Balogun 1969 1 ANLR p.349

Akinduro v. Iwakun 1994 3 NWLR pt. 330 p. 106

As quite rightly pointed out by MR. L. E. NWOSU, SAN, twelve of the fourteen orders granted by the courts below were declaratory. Now, declaratory judgments are final order which declare the rights of the parties. Such judgments cannot be stayed. See

Tukur v. Govt of Gongola State 1989 4 NWLR pt.117 p.592

Okoya v. Santilli 1990 2 NWLR pt.131 p. 172

Declaratory judgments create a res judicata and can be relied upon as an estoppel. Further orders made along with a declaratory judgment, may be subject to a stay of execution.

It is wrong to refuse to consider an application for stay or refuse to grant it simply because the reliefs sought in the trial court and most of the reliefs granted were declaratory. It is the duty of the judge considering an application for stay of execution to examine the judgment and see if indeed it was a declaratory judgment with orders that cannot be stayed.

The issue, therefore is what does the appellant/applicant want stayed.

The Court of Appeal affirmed the judgment of the High Court and among its orders, ordered:

“a perpetual injunction is hereby granted restraining the defendant by themselves, their servants, privies, agent, or howsoever from further entry into the said plaintiffs land or from denying the title of the plaintiffs as landlords over the said parcel of land.”

The above order is not declaratory and that is the order the appellant/applicant wants stayed. An appeal does not operate as a stay and a stay of execution is not granted against a declaratory judgment or a judgment on admission. The former merely declares the rights of the parties, or the legal position of the parties in the action; while the later is given after a party admits a claim. In both cases there is nothing to stay. Executory judgments on the other hand are stayed. In considering an application for stay of execution or injunction the grounds of appeal should not be taken in isolation, rather it is the effect of refusal of the application on the appellant if he subsequently wins the appeal that is of utmost importance. A stay of execution stops temporarily the beneficiary of the judgment from enjoying the fruits of the judgment while the appeal is being heard. It is usually granted before the hearing of the appeal and stays in force right through the hearing of the appeal. The aim being to protect the RES from destruction, thereby avoiding a situation where the court hearing the appeal is presented with a fait accompli. A stay of execution would be granted if the applicant is able to show special and exceptional reasons.

In my view if a stay of execution is not granted the beneficiaries of the judgment would go into the Shell Residential Area (The RES) driven by all kinds of desires, the end is best imagined. The RES may be destroyed before the appeal is determined. A return to the status quo ante bellum in the event the appellant wins would be impossible, and that would be bad for the streams of justice which must be kept pure at all times. This court would then be presented with a fait accompli before the judgment of this court is delivered. On no account should this court or an Appeal Court be presented with a fait accompli, but that would be the case.

After examining affidavit evidence the appellant/applicant has been able to show its huge investments on the RES known as the Shell Residential Area. Their staff resides there now. If a stay of execution is not granted its activities would be crippled. Everybody on the land would be asked to leave. This to my mind amounts to special, exceptional and strong reasons why this application should be granted. Considering equity and fairness the rights of the claimants to the land ought to be put on hold pending the hearing and determination of the appeal. The balance of convenience is clearly on the side of the appellant/applicant.

Accordingly a stay of execution is hereby granted pending the determination of this appeal.

The Preliminary objection on this issue is also dismissed.

Motion on Notice filed on 14/9/10 by Learned Counsel for the 1st and 2nd set of claimants/respondents/applicants is hereby dismissed.

Both applications succeed and they are hereby granted.

For the avoidance of doubts Preliminary Objections are hereby dismissed. It is ordered as follows:

1. Leave is granted the appellant/applicant to file three additional grounds of appeal.
2. Time is extended by 60 days from today to enable learned counsel file the appellants brief and amended Notice of Appeal.
3. A stay of Execution is hereby granted pending the hearing and determination of the appeal.
4. No order on costs.

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SC.150/2010