IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS


                            SUITNO.LD/2055/09

BETWEEN:


THE NIGERIAN BULK OIL COMPANY LIMITED…………..CLAIMANT/APPLICANT
                                       
AND

1.    PRACTOIL LIMITED
2.    MRS. BOLA MUINAT SHAGAYA   …..………………..DEFENDANTS


CLAIMANT’S WRITTEN ADDRESS AGAINST THE DEFENDANTS’ MOTION ON NOTICE DATED 29TH JANUARY, 2010


1.00    INTRODUCTION:   

1.01    The Defendants Motion on Notice dated 29th January is the 3rd in the series of numerous Applications filed by them against the Claimant’s Suit. However, since they have evinced an intention to withdraw the previous two Applications, this address is limited to the Motion on Notice dated 29th January, 2009 which is the last in the series.

1.02    It is instructive to note that the Defendants’ Application was filed subsequent to being duly served with the Claimant’s Originating Processes, Motion on Notice for Injunction and the Interim Orders of Injunction of this Honourable Court. The Proof of the service is already in the Honourable Court’s File.

1.03    In reaction to the Defendants’ Motion on Notice dated 29th January, 2009, the Claimant herein has filed a Counter-Affidavit of 7 Paragraphs deposed to by Abdulhameed Abdullateef; a Manager with the Claimant’s Company. To the said Counter-Affidavit were attached four Exhibits i.e. Exhibits A, B, C and D. Reliance shall be placed on all the depositions contained in the said Counter Affidavit and the attached Exhibits. The kind attention of this Honourable Court is hereby drawn to Paragraph 5(i) – (xxviii) of the Counter-Affidavit.



2.00    STATEMENT OF FACTS:

2.01    The relevant facts germane and relevant to the determination of the Defendants’ Application are as contained in the Claimant’s Counter-Affidavit of 7 Paragraphs. Paragraphs 5(i) – (xxviii) of the said Counter-Affidavit are highly instructive.

2.02    However, it needs to be stressed herein that the Claimant in this Suit commenced this Suit after its Claims in its earlier Suit No.FHC/L/CS/537/09 was struck out for wants of jurisdiction on the part of that Court. This fact was duly pleaded in Paragraph 15 of the Claimant’s Statement of Claim and deposed to in Paragraph 18 of its witness’s Written Deposition on Oath already before this Honourable Court. The Plaintiff herein has no other Claim filed or pending before any other Court over the subject matter of this Suit.

3.00    ISSUES FOR DETERMINATION:

(i)    Whether having regard to the manifest disobedience of the Orders of this Court and continuing disregard for its processes, the Defendants/Applicants ought to be indulged by hearing of its Application without first demonstrating its readiness to obey and respect Court’s Processes;

(ii)    Whether having regard to the Rules of this Honourable Court, the Defendants/Applicant’s Application is competent;

(iii)    Whether on the whole and having regard to the circumstances of this Application, same ought not be dismissed or struck out having being brought malafide.

4.00    ARGUMENT:

4.01    In arguing the above issues, it is apposite to point out that while the Defendants/Applicants claimed to have submitted a Solitary Issue for Determination, it in essence expanded  the sole issue to Five (5) distinct issues arising therefrom, namely:

(i)    abatement of the ex-parte Order of Injunction;

(ii)    suppression of Material facts;

(iii)    abuse of Court Process;

(ii)    improper Constitution of the action; and

(iii)    want of Jurisdiction.

4.02    Furthermore, we shall be urging this Honourable Court to expunge and/or strike-out the Depositions contained in Paragraphs 10(a) & (c) of the Affidavit of Kabir Akingbolu sworn on 28th January, 2010 in support of the Applicants’ Application in that those Depositions violate the provisions of Section 87 of the Evidence Act in that they are tantamount to Legal Argument and/or Conclusion. See: BAMAIYI VS. THE STATE (2001) 4 S.C. (Pt.I) 18 @ 32-33 Paragraphs 25-15.

4.03    ISSUE 1:

The Applicants have submitted that the positive interim Orders of this Court issued on 15/12/09 and renewed on 21/12/09 has lapsed the … …. in Paragraphs 6(iii), (iv) and (v) of their Affidavit in support of their Application all their acts of disobedience of the said Court Order. This is because as manifest from the Records of the Honourable Court, all those activities mentioned in those Paragraphs were carried out and still being carried out either during the pendency of a Suit and/or during the operation of the ex-parte Order they allege is now spent. With this, and coupled with the Respondent’s positive Deposition in its Counter-Affidavit to the effect that the Applicants have refused to obey the positive Order of this Honourable Court, the question is whether such conduct is conscionable.

4.03    It is respectfully submitted that in so far as no Court of competent Jurisdiction pronounced the Interim Orders of this Honourable Court made on 15/12/09 and renewed on 21/12/09 and duly served on the Defendants on 21/12/09 invalid or otherwise incompetent the Applicants were duly bound to comply with same irrespective of their opinion regarding the said Order as to its validity. It is therefore a gross and manifest act of disrespect to the Orders and authority of this Honourable Court for the Defendants/Applicants to ignore the said Orders while it lasted only for them to turn round and claim that in any event the Order has lapsed and thereby proceed to seek the aid of the Court – See: MADAM MARGARET EZEOKAFOR (1999) 6 S.C. 1 @ 15 Paragraph 25-35. See further A.G. FEDERATION (2005) 5 S.C. (PT.I) 73 @ 83 Para. 15-25 per Katsina-Alu, JSC; (now CJN);

 “It is now settled that the plain and unqualified obligation of every person against, or in respect of whom an Order is made by a Court of Competent Jurisdiction is to obey it unless and until that Order is discharged. It is so even in cases where the person affected by the Order believes it to be irregular or even void…….”

See also EZEKIEL-HART VS. EZEKIEL-HART (1990) 2 S.C. 1 @ 30-31 Para. 30-20-

“It is sad to observe that there is nothing on record to show that the Appellant has obeyed any of the above Orders of Court. I would like to state that obedience to Orders of Court is fundamental to the good Order, peace and stability of the Nigerian Nation. The ugly alternative is a painful recrudescence of triumph of brute force or anarchy – a resort to our old system of settlement by means of bows and arrows, matchetes and guns or, now, even more sophisticated weapons of war. Disobedience to an Order of Court should, therefore, be seen as an offence directed not against the personality of the Judge who made the Order, but as a calculated act of subversion of peace, law, and Order in the Nigerian society. Obedience to every Order of Court is therefore a duty which every citizen who believes in peace and stability of the Nigerian State owes to the Naion. This Court has made it abundantly clear that it will not lend its machinery in aid of a person who is, and continues, to be in contempt of an Order of Court by ordering a stay while the person is still in contempt.”

4.04    We submit further that the purpose of serving the Ex parte Order along with the Motion on Notice as provided by the Rules of this Honourable Court is to keep the res intact pending the determination of Motion on Notice and not otherwise. – See MILITARY GOVERNOR OF LAGOS STATE & ORS VS. CHIEF EMEKA ODUMEGWU OJUKWU & ANOR (1986) 1 NWLR (PT.18) 66@ 636-638 per Obaseki, JSC; (as he then was).

4.05    It will be an untenable argument to canvass as done by the Applicants’ Counsel that a party upon whom an Ex parte Order was served along with the Motion on Notice would be at libtery to deal with the Subject matter of the Suit as it pleases even during the life of said order only to return to Court under the guise that the Ex parte Order has lapsed, abated or spent. This sort of argument as put forward by the Applicants the Applicant runs foul against the well known Principle of lis pendis and same is tantamount to encouraging his Client to resort on to self-help; an act which is sternly frowned at by our Courts.

4.06    We submit that all the activities of the Applicants herein since the hostilities between them and the Respondents began have been to taunt the Court and to anticipate the Order of the Court.

4.07    We submit that, a Law abiding Defendant in a Suit will restrain himself even after he has been notified of the pendency of a Suit against him even without the Sanction of any Order of the Honourable Court.

In the American case of J. EDWARDS JONES VS. SECURITIES and EXCHANGE COMMISSION 80 L.Ed 1015 298 US1.3 which was adopted by the Supreme Court in OJUKWU’S CASE supra that:

“After a Defendant have been notified of the pendecy of a Suit seeking an Injunction against him, even though a temporary Injunction be not granted, he acts at his peril and subject to the power of the Court to restore the status wholly irrespective of the merits as may be ultimately decided.

4.08    In summary, it is submitted that this Honourable Court will be right to decline hearing the Defendants/Applicants until it demonstrates a willingness to abide with the Orders of Court. Furthermore, the Honourable Court has unfettered powers to command the obedience of its Order before it can listen to these Applicants.

Also we submit that this Honourable Court has the power to direct these Applicants to undo all those things they have done since the pendecy of this Suit. On this, we cite the Supreme Court’s case THE REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH VS. MRS EMMANUELA  OLOWOLENI (1990) 6 NWLR (PT.158) @ 537-538 per Nnaemeka-Agu, JSC; (as he then was).

4.09    Finally on this point, it is respectfully submitted that these Applicants who are mere contemnors lack any basis to attack the Order of this Honourable Court which Order they have refused, neglected and/or/failed to obey. We urge this Honourable Court to reject their Counsel’s argument in this regard and decline their prayers in their Application before the Honourable Court.

5.00    ON ALLEGATION OF SUPPRESSION OF MATERIAL FACTS

5.01    We observed that the Applicants herein in their desperate bid to put the wool over the eyes of the Honourable Court and through the Deponent in their supporting Affidavit, have perjured in Paragraph 7(b) of the said Affidavit that the Respondent intentionally withheld and suppressed what they term all vital information to the case from the Court.

Also in their Counsel’s Written Address, the Learned Senior Counsel claimed albeit wrongfully at Paragraph 5.1 threat that the Respondent willfully suppressed the subsistence of a certain action before Lambo, J; of the Federal High Court from this Honourable Court.

We submit that this Claim of the Learned Senior Counsel is nothing but bogus and baseless.

5.02    The said vital and/or material facts of the subsistence of a Suit before Lambo, J; of the Federal High Court was duly pleaded in Paragraph 15 of the Claimant’s Statement of Claim and deposed to positively at Paragraph 18 of the Claimant’s witness’s Written Deposition on Oath all before this Honourable Court prior to its grant of the Ex-parte Order of 15th December, 2009 and its renewal of 21st December, 2009 as well.

5.03    We submit further to the above that since the only facts alleged to have been suppressed was the fact of a case pending before the Federal High Court which fact has been shown to be before this Honourable Court prior to the Order of Injunction being attacked by the Applicants this Honourable Court would be right to discountenance the terse argument tied to that erroneous conclusion from this Senior Counsel. In this regard the Honourable Court would be urged to decline the prayer in Paragraph 5.3 of the Counsel’s argument and prayers 1 and 2 on the Motion Paper.

5.04    Also the Learned Counsel has also failed woefully to show how the fact that a case subsist before the Federal High Court would have adversely affected the grant and/or refusal of the Respondent’s Application Ex-parte were his bogus allegation to be true which in any event was not the case.

5.05    Equally under this heading, the Learned Senior Counsel raised the issue of non-service of the Motion on Notice on his Clients. Before this and at Paragraph 10(d) of their Affidavit in support the Applicants have alleged that the processes issued in this Suit were not served on the 1st Defendant/Applicant only.

5.06    We submit in answer to the two allegations aforesaid that such allegations underscore the importance of Affidavit of Service already before the Honourable Court. We submit and as it has been deposed to in the Counter-Affidavit that all the processes issued so far in this Suit by the Claimant/Respondent have been served on the two Defendants/Applicants in accordance with the Order of the Honourable Court to that effect as reflected in the Affidavit of Service deposed to by the Sheriff of this Honourable Court already before the Honourable Court.

5.07    What is more, authorities are legion and the Law is trite that once there is an allegation of non-service of the process of the Honourable Court, the Court concerned should look at its file for an Affidavit of Service to that effect and where one is found as in this case that will represent a prima facie evidence of service. On this, we refer the Court to the cases of OKESUJI VS. LAWAL.

5.08    We submit that with the Affidavit evidence backed by the photographic impression of the service carried out on the Defendants/Applicants in this case, the Honourable Court will be right to rely on the document to hold that the two Applicants were duly served as ordered by the Honourable Court in the circumstances of this Suit.

6.00    ON THE ALLEGED ABUSE OF COURT PROCESS

6.01    The mainground for the Applicants’ Legally unjustifiable assertion is that it has pending before the Federal High Court a Counter-Claim against the Claimant herein in its Suit which had been struck-out. We submit that the mere fact that the 1st Applicant’s Counter-Claim is still pending before Lambo, J of the Federal High Court would not be a bar to the Claimant herein to assert its rights before this Honourable Court over its landed property situate at Apapa within Jurisdiction of this Honourable Court.

6.02    What is more, judicial authorities are more than plethora while the Law has crystallized that when it comes to dispute over land or landed property the proper forum to ventilate same shall be the State High Court within which the subject matter is situate which in this case is the Lagos State High Court. On this, we cite the following cases to wit:

(i)    ELDER SUNDAY OMOTESHO (Regent) & ORS. VS. ALHAJI ABUBAKAR ABDULAHI & ORS. (UNREPORTED) APPEAL NO: CA/L/418/04 delivered on 4th June, 2007;

(ii)    FEDERAL MORTGAGE BANK OF NIG. VS. LAGOS STATE GOVERNMENT & 4 ORS (UNREPORTED) APPEAL NO:CA/L/240/06 decided on 23rd June, 2009; and

(iii)    DR. OKOROMA VS. CHIEF CHRISTIAN UBA (1999) 1 NWLR (PT.587) 359.

6.03    We submit that even a cursory look at the Exhibits 1a and 1b and even 2 attached to the Applicants’ Affidavit will reveal that parties are not the same in the alleged two Suits being referred to by the Applicants.

6.04    Flowing from the above, we submit that the Law on what constitutes an abuse of the process of Court is not static and not restricted to what the Learned Senior Counsel posited at Pages 5-6 of his address. In the recent case of CHRISTIAN OUTREACH MINISTRIES INC. & 2 ORS VS. COBHAM & ANOR. (2006) 15 NWLR (PT.1002) 283 the Court of Appeal, Calabar Judicial Division held amongst others that..

“It is not the Law that once a party files another Suit before another Court on the same subject matter, there is an abuse of Court process. An act can give rise to different Suits. A subject-matter may verily well give rise to different rights. In other words, different Suits can emanate from the same subject-matter, but with different rights and reliefs.”

6.05    In the same case of CHRISTIAN OUTREACH MINISTRIES INC. supra, the Honourable Court of Appeal also held further that:

“It is not an abuse of Court Process for a Defendant who conceives that he has reliefs which are different from those claimed against him by the Plaintiff, to initiate separate proceedings in Court, seeking those reliefs even though his claims and those of the Plaintiff arise from the same facts and the same subject matter. In the instant case, the Appellants’ Suit was best describes as a cross-action in a different Court. It was not a case of two actions, which one party had sued the same Defendant.”

We urge this Honourable Court to follow the above Court of Appeal’s decision and discountenance the hollow argument proffered by the Learned Senior Counsel as same is a non-starter.

6.06    Finally on this point the Honourable Court is urged to decline to hold this Suit as an abuse of its process as none of the ingredients making a Suit an abuse is present in the Claimant’s Suit. Infact, all the cases cited by the Learned Senior Counsel on what constitutes an abuse of Court process are not applicable to the Claimant’s Suit.

7.00    ON THE ALLGED IMPROPER CONSTITUTION OF ACTION

7.01    It is instructive to note that the Learned Senior Counsel predicated his argument under this heading on the non-joinder of the Nigerian Ports Authority as a party in this Suit. The Learned Senior Counsel also made heavy weather on the fact that the same Nigerian Ports Authority being a Federal Agency is only subjected to the Jurisdiction of the Federal High Court.

7.02    We submit with respect that the non-joinder of the Nigerian Ports Authority has no bearing in the validity of the Claimants’ Claim having regards to Order 13 Rule 16(1) of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides that:-

Order 16(1)    “No proceedings shall be defeated by reason of misjoinder or non joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.” (Underlining mine)

The above mandatory provisions of the Rules of this Honourable Court knock off the bottom of any merit the argument of the Senior Counsel would have had. We urge this Honourable Court to discountenance Applicants’ Counsel Argument as same is retrogressive and archaic.

7.03    We submit further that it is not for the Applicants nor their Counsel to determine who will be a party in the Claimant’s Suit. The Claimant has deposed positively that t has no cause of action against the Nigerian Ports Authority as the relationship between it and the Authority is cordial after the Authority has restored the Claimant back to its premises.

7.04    In any event, the issue of privity of contract said to be lacking between the Claimant and the Defendant in this Suit is a non-issue. This is because the Claims against the Defendants are mainly on trespass and there is no Law where privity of contract is a pre-condition to an action in trespass. In fact, the want of privity of either contract or estate makes the Defendants trespassers on the Claimant’s leasehold property.

7.05    Flowing from the above, we submit that since the Federal High Court lack Jurisdiction on matters like Trespass to Land which is the cause of action in this Suit, the proper forum for the Claimant to litigate its claims is this Honourable Court irrespective of whether or not a Federal Agency is a necessary party. In any event no Application for joinder of the Nigerian Ports Authority is pending before this Honourable Court.

7.06    We submit further that the action of the Claimant herein which is grounded in Trespass on its property is not only reasonable but such that can be dealt with without joining the Nigerian Ports Authority. The Claimant herein has no cause of action against the Authority and in the event the Defendant feels that they cannot defend this Suit without the presence of the Nigerian Ports Authority they can bring their Application for joinder of the Authority under Order 13 Rule 16(3) and Rule 17 thereat of the Rules of this Honourable Court.

8.00    CONCLUSION

    In conclusion, the Honourable Court is respectfully urged to discountenance all the Argument canvassed by the Applicants’ Counsel in support of the lone and sub issue(s) raised in his Written Address therein and resolves the said issue against the Defendants/Applicants for the following reasons to wit:

(i)    The Defendants/Applicants have failed to show how the Ex parte Order they declined to obey till date could have said to be abated as against them;

(ii)    Equally the Defendants/Applicants have not established their bare allegation of suppression of facts;

(iii)    The Affidavit Evidence of “Poof of Service” before the Honourable Court establishes that the Defendants/Applicants were duly served with all the processes issued so far in this Suit including but not limited to the Ex-parte Order of Injunction;

(iv)    The Claimant/Respondent has established that its Suit is not in Law and on fact an abuse of the process of this Honourable Court;

(v)    By the mandatory provisions of the Rules of this Honourable Court, the allegation of improper Constitution of action has been shown to be baseless and otiose;

(vi)    The Claimant/Respondent has established that its cause of action is not only reasonable but also justiciable before this Honourable Court;

(vii)    The Defendants/Applicants’ Allegation of want of Jurisdiction on the part of this Honourable Court has been exposed to be a bare allegation lacking in substance.

Finally the Honourable Court is urged to dismiss the Defendants/Applicants’ Application dated 29th January 2010 with substantial cost in favour of the Claimant/Respondent as that Application is baseless, unmeritorious and tainted with malice.

Dated this…………….day of…………………………………2010.