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

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


                            SUIT NO. 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 6(i)–(xx) 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:
   
    The following issues are respectfully submitted for the Court’s kind consideration:

(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 in arguing the Application:

(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 the 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:

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;

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. They deposed rather boldly in Paragraphs 6(iii), (iv) and (v) of their Affidavit in support of their Application all their acts of disobedience to 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 in the life of the ex-parte Order they alleged is now spent. These Depositions taken along with 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.

4.04    It is respectfully submitted that in so far as no Court of competent Jurisdiction has 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. ANAMBRA VS. A. G. FEDERATION & ORS. (2005) 5 S.C. (PT.I) 73 @ 83 Para. 15-25 per Katsina-Alu, JSC; (now CJN); where it was held:

 “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.”

4.05    It is submitted further that the purpose of serving the Ex parte Order along with the Motion on Notice as provided for 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).

4.06    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 Applicant’s runs against and violates all known principles of Adjudication and same is tantamount to encouraging resort to self-help; an act which is sternly frowned at by our Courts.

4.07    It is submitted 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.

4.08    It is submitted with respect that, a Law abiding and prudent Defendant will restrain himself even if he only has Notice of the pendency of a Suit against him and 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, it was held 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.”

4.09    In summary, it is submitted that the 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 and respect for its process before it can listen to the Applicants.

The Honourable Court, it is also submitted, has the power to direct the Applicants to undo all those things they have done since the pendency of this Suit in order for the Applicants to enjoy its discretion. On this, see: 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).

4.10    ISSUE II:

Whether having regard to the Rules of this Honourable Court, the Defendants/Applicant’s Application is competent.

The Defendants/Applicants up and until now are yet to file their Defence and have by their Application contrary to the provisions of Order 22 High Court of Lagos State (Civil Procedure) Rules 2004 raised an Application with is clearly in the Nature of Demurrer.

4.10    It is respectfully submitted that on the authority of LASISI FADARE & ORS. VS. A.G. OYO STATE (1982) 4 S.C. 1 (where a similar provision was considered), the Defendants/Applicants’ Application ought to be dismissed/struck out being incompetent.
4.11    ISSUE 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.

    It is submitted that having regard to the Records of the Court, the Respondents cannot be said to be guilty of the suppression of any material facts upon their Application for Injunction. On the issue of want of service of the Court Processes, it is instructive that the Applicants appears to be approbating and reprobating when on one hand they alleged in the Affidavit Evidence that both Defendants were not served and on the other that only the 1st Defendant was not served.

4.12    It is submitted with respect that the proof of service filed before the Honourable Court by the Court Bailiff should be conclusive of this matter and we urge the Honourable Court to rely on same – See OKESUJI VS. LAWAL (1999) 2 S.C. 25 @ 46 on purpose of Affidavit of Service. It will be stretching the demand of the Law to the point of absurdity to allege want of service in this instance, in which the Honourable Court has Photographic Evidence of Service on the Defendants at the property in dispute and which property the Applicants claim to be in occupation and WORKING. Besides the 2nd Defendant/Applicant is the alter ego of 1st Defendant. Indeed the two previous Applications filed by the Applicant and sought to be withdrawn gives a lie to this assertion. – See further PANACHE COMMUNICATIONS LTD. VS. AIKHOMU (1994) 2 NWLR (PT.327) 430 @ 431.

4.13    The Applicants have submitted that the Claimant’s Suit constitute an abuse of the process. The simple answer to this is provided by the case of CHRISTIAN OUTREACH MINISTRIES INC. & 2 ORS VS. COBHAM & ANOR. (2006) 15 NWLR (PT.1002) 283 wherein the Court of Appeal held 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;”  and 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.”

In any event issues, such as this ought to have being raised in the pleadings.

4.14    It is further submitted that in any event, having regard to the subject matter and the claims of the Claimants the Court vested with Jurisdiction is this Honourable Court – See: DR. OKOROMA VS. CHIEF CHRISTIAN UBA (1999) 1 NWLR (PT.587) 359 and AKAAER JOY VS. KUTUN DOM (1999) 7 S.C. (PT.II) 1.

    The Affidavit Evidence before the Honourable Court shows conclusively that the Claimants have no other pending Claim before any other Court on the subject matter of this Suit and that the parties in the Claim before the Court and that of the Applicants before the Federal High Court are not the same.

4.15    It is further submitted on the question of non joinder as alleged by the Applicant that Order 13 Rule 16(1) of the Rules of this Honourable Court provides a clear answer to that submission. The Order provides:

“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 supplied)

4.16    Finally it is submitted that having regard to the above, this Application cannot but have been brought malafide as same with respect is groundless in Law.

5.00    CONCLUSION:

    On the whole, the Honourable Court will be urged to decline hearing the Application or otherwise dismiss/strike of the Defendant’s/Applicant’s Application because:

(i)    The Applicants have shown and continue to show complete contempt for the Orders of the Court and its process;

(ii)    By the Rules of this Court, the Application is incompetent, the Defendants having not filed any defence till date wherein any issues of Law as arising from the Application ought to have been lawfully raised;

(iii)    The Applicants have not succeeded in showing that the Respondents abused the process of the Court nor hid facts from the Court;

(iv)    The Law is trite that the Claimant could not have sued a party against whom they make no claims and in any event by the Rules of this Honourable Court non-joinder will not defeat any proceedings such as the Claimants;
(v)    The Court is not bereft of Jurisdiction, because the Claimant’s claims before the Court is proper legally cognisable and the subject matter being Land is within the competence of the Honourable Court;

(vi)    Having regard to the Records of the Honourable Court and the Bailiff’s proof of service, it is too late in the day for the Defendants to deny service.


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