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  • 2004-02-23
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Mobil Producing Nig. Unltd. vs. Monokpo

MOBIL PRODUCING NIGERIA UNLIMITED

MOBIL INCORPORATED OF USA

V

CHIEF SIMEON MONOKPO

CHIEF HON. JOSEPH T. T. NWI-UE

( For themselves and on behalf of Bonmu, Lewe, Gbe, Tobsoi, Bon Zakarakpege, Bon Lebala, Seato, Bon Ogboru, Bon Perobari, Bon Kolgara, Kobo, Zerima,

Maku, Dokawa Aategio, Bon Kolbel, Bon

Lopkorobo, Bon Naniba, Bon Korgbara, Bon

Sunday Mogho Gol, Kol Nor, Dor Pen Gio (Tai LGA)

Kporgor, Wakama Baarale, Sime, Norkpo, Ekporo,

Gbo Dor, Igbanigbo, Numaakaa village, Kaa village, Luuyor-Gwara Laala village, Wiigamaa, Nordem village, Sii village, Kerekewire BoucoBe-I-Or Creek, Norwiri Boue-Bukori Dukwiri Creek, Naman village,

Nwikiekpo, Kpo-Ue yargu Ken-Nwi Kim, Kpo-Ue Yiraa, Kwama, Yaataa, Teenamu Member Council of Chiefs and others, Teke-ue, Kino Kpeenu, Asa Kpege, Bo-popbon, The Royal Fish Farm

Association, Lekagah & Luuwa Lumene-Bangba,

Kere Bangata, Kananaha, Opuoko, Bainu, Nwowii,

Yae Kpaa, Seme, Luekue, Kol Toi, Bon Lebie and

Bon Legbo, Kabari Gbo Lebon Kposidu, Gbaloo,

Kpor, Kiisi and  Lewuga Fishing Communities in

Gokan, K. Dere, Tai, Eleme & Khana Local

Government Area of OGONI RIVERS STATE)

V

MOBIL OIL PRODUCING NIGERIA UNLIMITED

MOBIL INCORPORATED OF USA

V

HIS ROYAL HIGHNESS ETEBOM KAY

WILLIAM AKANOWO

CHIEF RICHARD OBEDIAH AYANG

PRINCE ANIEFIOK ADPAN MOENANG

ETOP WILLIAM AKPANOWO

PRINCE UFOK FRANT ENOIDEM

( For themselves and on behalf of the people of Akpanowo, Ayang, Imoenang Fishing Communities of Ikot Obong Ikpa-Ibekwe of Ikot Abasi, Akwa Ibom State of Nigeria)

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC ( Presided )

ALOYSIUS IYORGYER KATSINA-ALU, JSC ( Dissented )

UMARU ATU KALGO, JSC

SAMSON ODEMWINGIE UWAIFO, JSC ( Read the Lead Judgment )

NIKI TOBI, JSC

SC. 320/2001

FRIDAY, 12TH DECEMBER, 2003

APPEAL - Competence of - Multiple appellants - Effect of the incompetence of one or more of the appellants on others

APPEAL - Issues for determination - Need to be based, related to or arise from grounds of appeal -Attitude of court to issues not so formulated

APPEAL - Right to appeal - Party interested in a proceedings - Rights to appeal with leave of court - Section 233(5), 1999 Constitution considered

APPEAL - Right to appeal - Who may exercise - Whether only an aggrieved party to a proceeding at the Court of Appeal may appeal to the Supreme Court - Section 233(5) of 1999 Constitution considered

COURT - Duty to hear and determine all applications brought before it - Exception thereto

COURT - Trial court - Need for to be circumspect when giving judgment involving a huge sum of money

COURT - Undelivered judgment of court - Duty of court to hear any application which has bearing on and brought before its delivery

EVIDENCE - Exhibits - Need for court to see before making pronouncements thereon

EVIDENCE - Trial - Right of counsel to choose to adduce evidence in support of pleading - Impropriety of court interfering with such rights

FUNDAMENTAL RIGHTS - Fair hearing - Refusal of court to hear any application - Whether a breach of fair hearing

JUDGMENT AND ORDERS - Judgment against non-existent party -

Validity of

JUDGMENT AND ORDERS - Judgment by motion - Order 28 Federal High Court (Civil Procedure) Rules, 2000 - Inapplicability of when case has gone to trial

JUDGMENT AND ORDERS - Judgment of court - Delivery of while

1 st defendant in the instant case still giving evidence - Impropriety of

JURISDICTION - Lack of jurisdiction of court - Whether can be waived by parties to suit

LEGAL PRACTITIONER - Counsel - Innovation of counsel - Need to conform with rules of procedure

PRACTICE AND PROCEDURE - Orders 28 and 38, rule 5, Federal High Court (Civil Procedure) Rules, 2000 - Difference in applicability of

PRACTICE AND PROCEDURE - Competing applications - Need for prioritization of application seeking to regularise a process

PRACTICE AND PROCEDURE - Defendant resting his case on plaintiff’s - Consequence of

PRACTICE AND PROCEDURE - No case submission in civil proceedings - Where counsel is not put to election -  Whether right to call evidence afterwards not lost

PRACTICE AND PROCEDURE - No case submission in civil proceedings - Proper procedure for - Impropriety of court ruling on unless counsel indicates he will call no evidence

PRACTICE AND PROCEDURE - Non-compliance - Whether failure to file pleadings within time cannot be cured under non-compliance save as envisaged by Order 3, Federal High Court ( Civil Procedure) Rules, 2000

PRACTICE AND PROCEDURE -  Non-compliance which affects the foundation of an action - Treatment of as an irregularity Impropriety of

PRACTICE AND PROCEDURE - Pleadings - Right of counsel to choose to file pleadings or not - Consequence of choice

PRACTICE AND PROCEDURE - Pleadings - Statement of defence flawed with an irregularly - Impropriety of court shutting its eyes to

PRACTICE AND PROCEDURE - Process unknown to law - Effect of

PRACTICE AND PROCEDURE - Undelivered judgment of court - Duty of court to hear any application which has bearing on and brought before its delivery

STATUTE - Constitution, 1999,  section 233(5) - Right to appeal - Who may exercise - Whether only an aggrieved party to a proceeding at the Court of Appeal may appeal to the Supreme Court - Right of party interested in a proceeding to appeal with leave of court

STATUTE - Federal High Court (Civil Procedure) Rules, 2000, Order 3 -  Non-compliance with rules of court - Failure of party to file pleadings within time - Whether save as envisageed by Order 3, Federal High Court ( Civil Procedure) Rules, 2000 cannot be cured under non-compliance

STATUTE - Federal High Court (Civil Procedure) Rules, 2000, Orders 28  and 38, rule 5 - Difference in applicability of

WORDS AND PHRASES - ‘Resting case on plaintiff’s case’ - Meaning of

Issues:

1.             Whether the Court of Appeal was right in upholding the ruling of the High Court in refusing to entertain and grant the 2nd defendant/appellant’s application to regularise the statement of defence filed out of time.

2.             Whether the plaintiffs’/respondents’ ‘notice of cross-motion’ not being known to law and unsupported by affidavit was competent.

3.             Whether the Court of Appeal was right in confirming the award of N4 billion unliquidated damages made in favour of the plaintiffs/respondents in spite of the fact that the valuation report on which the High Court relied was not placed before it.

4.             Whether the judgment of N4 billion unliquidated damages made against the 2nd defendant/appellant was proper when the codefendant was still giving evidence and contending the alleged common acts of negligence of the two defendants.

5.             Whether the 1st appellant not being an aggrieved party, can competently appeal against the judgment of the trial court and Court of Appeal.

Facts:

In a consolidated suit at the Federal High Court, Calabar, the first set of respondents (as plaintiffs) claimed from the appellants jointly and severally for ecological damage and injurious affection as follows: special damages of N3,698,524,656.00 being the sum assessed by the respondents’ expert chartered valuers in the valuation report and general damages of N301,475,344.00 for shock, inconvenience, loss of amenities, cost of the survey and expert reports.

The second set of respondents (as plaintiffs) claimed from the appellants jointly and severally for ecological damage and injurious affection as follows: special damages of N938,200,464.00 being the sum assessed by their expert chartered valuers in the valuation report and general damages of N61,799,536 for shock, inconveniences, loss of amenities, cost of surveys and expert reports.

After some preliminary issues, the learned trial Judge took evidence. The respondents gave evidence. They called four witnesses. They closed their case on 16th June, 2000. The 1st appellant herein sought and obtained the order of court to amend its statement of defence. This was granted. On the same day the 1st defendant opened its case and called one witness. The matter was adjourned for continuation. In the interval, the 2nd appellant brought a motion for dismissal of the respondents’ case against it on the ground that the plaintiffs on the pleadings and evidence led, disclosed no cause of action against it. In response to this, the respondents filed what was titled ‘notice of cross-motion’ seeking to dismiss the 2nd appellant’s motion and to enter judgment for the respondents against the 2nd appellant based on law. The motion was not supported by an affidavit.

The two applications were moved by counsel after which the 2nd appellant’s counsel sought for an adjournment to reply on points of law. This was granted. The matter was adjourned to the 7th of July, 2000. On the 6th of July, 2000, the 2nd appellant filed a motion for extension of time within which to file a memorandum of appearance and statement of defence and an order deeming the memorandum of appearance and statement of defence already filed as properly filed. The respondents’ counsel opposed the hearing of this application contending that same was not ripe for hearing. The trial Judge held the view that the motion for extension of time was an abuse of court process calculated to overreach the respondents who had already closed their case and would not have the opportunity to react to issues raised in the statement of defence. The trial Judge ruled that the 2nd appellant’s counsel elect either to reply on points of law to the motion being argued or withdraw his motion for extension of time. The 2nd appellant was thus compelled to reply on points of law, while his motion for extension of time remained unheard.

At the conclusion of hearing of the motion for judgment, the trial court entered judgment for special and general damages in favour of the respondents. Dissatisfied, the two appellants appealed to the Court of Appeal, and their appeal was dismissed. The two appellants have further appealed to the Supreme Court.