⦿ CASE SUMMARY OF:
Warri Refining & Petrochemical Co. Ltd. v. GECMEP Nigeria Limited (2020) – SC
by NSA PaulPipAr
– Pre-action notice;
– mixed law and fact;
Warri Refining & Petrochemical Co Ltd
Gecmep Nigeria Limited
⦿ LEAD JUDGEMENT DELIVERED BY:
Kudirat Motonmori Olatokunbo Kekere-Ekun, J.S.C.
* FOR THE APPELLANT
– A. Okpakpor, ESQ.
* FOR THE RESPONDENT
– O.D. Emole, ESQ.
⦿ FACT (as relating to the issues)
By its writ of summons and statement of claim filed on 20/3/2015, the respondent, as plaintiff, sought the following reliefs against the appellant:
1) An order of the Honourable Court declaring the defendant’s letter dated 30th April, 2014 rejecting the Heptane Chemical supplied to it by the Plaintiff as null and void and of no effect.
2) The sum of N20,278,065.00 being the debt owed to the plaintiff by the defendant for the supply of Heptane Chemicals.
3) 21% interest accruing on the debtÂ from December 2013, when the debt was due for payment to the date of payment of the debt.
4) The sum of N450,000.00 being special damages arising from transportation and 1 hotel bills expended by the plaintiffs in nine (9) trips to the defendant’s office over the delayed payment.
5) The sum of N50 million as general damages for breach of contract.
The defendant filed its statement of defence and at the same time filed a preliminary objection. The preliminary objection raised issues of jurisdiction of the State High Court to hear the suit, and the non delivery of a pre-action notice to the defendants before the commencement of the suit.
In overruling the objections, the judge of the High Court, stated,
On the issue of jurisdiction:
“From the claimant’s claim, as contained in paragraph 23(i) (v) of the statement of claim as reproduced earlier in the ruling, and in view of the decision in all the cases considered herein, the plaintiff’s claim is in respect of breach of a simple contract of supply of chemicals from the defendants … Therefore, it is one which, in my estimation can be determined by a Court other than the Federal High Court.”
On whether the requirement of a pre-action notice is applicable to this case, His Lordship held:
“The question that comes to mind at this time is whether there is provision of pre-action notice in the contract between the Plaintiff/Respondent and the Defendant/Applicant. If the answer is no, then the parties are bound by the terms of their contract. Consequently, since there is no provision for pre-action notice in the contract between the plaintiff/Respondent and the Defendant/Applicant, the 4 Court will assume jurisdiction over the matter.”
The Applicant dissatisfied appealed to the Court of Appeal which dismissed the appeal. This is a further appeal by the Applicant (herein Appellant).
1. The appeal, being interlocutory, was filed outside the period prescribed by Section 27(2) of the Supreme Court Act Cap. 515 LFN 2004 and no application was made for extension of time to seek leave to appeal.
2. Grounds 1, 2 and 3 of the notice of appeal involve questions of mixed law and fact, for which leave ought to have been sought and obtained.
3. Issues A and C formulated in the appellant’s brief are distilled from incompetent grounds and therefore incompetent.
1. Whether the requirement of pre-action notice as contained in Section 12 of the NNPC Act, 2004 must be incorporated in the contractual relationship between the parties herein before it can be binding and/or that the said Section 12(2) of the NNPC Act, 2004 is inapplicable to cases of contract.
⦿ HOLDING & RATIO DECIDENDI
[PRELIMINARY OBJECTION: SUCCEEDED IN PART]
1. ISSUE 1 OF THE PRELIMINARY OBJECTION WAS RESOLVED AGAINST THE RESPONDENT/APPLICANT, BUT IN FAVOUR OF THE APPELLANT/RESPONDENT.
i. The appeal before the Court below arose from an interlocutory decision of the trial Court. However, the judgment rendered in respect of the interlocutory decision is a final decision.
ii. Applying these principles to the instant case, there is no doubt that the decision of the lower Court upholding the ruling of the trial Court is a final decision. The subject matter of the controversy was whether the trial Court had the requisite jurisdiction to determine the matter before it and whether the decision affirming its jurisdiction was correct. The lower Court made a final pronouncement on the issue and dismissed the appeal. The Court has nothing more to do with the case and is therefore functus officio. By Section 27(2) of the Supreme Court Act, the appellant had 3 months within which to appeal against the decision. The judgment was delivered on 5/7/17 while the notice of appeal was filed on 24/7/17, well within the time stipulated by the law. To that extent, the appeal before this Court is competent. The preliminary objection on this ground is overruled.
2 & 3. ISSUE 2 & 3 WERE RESOLVED IN FAVOUR OF THE RESPONDENT/APPLICANT BUT AGAINST THE APPELLANT/RESPONDENT.
i. Having regard to the relevant principles enunciated above, I am in no doubt that Grounds 1, 2 and 3 of the Notice of Appeal are grounds of mixed law and fact, for which the appellant required the leave of this Court or the Court below before filing same, pursuant to Section 233(3) of the 1999 Constitution, as amended. I therefore agree with learned counsel for the respondent that Grounds 1, 2 and 3 are incompetent for failure to obtain the requisite leave of Court.
ii. Issue A in the appellant’s brief is predicated on Ground 3, while issue C is predicated on Grounds 1 and 2. Having been predicated upon incompetent grounds of appeal, the said issues A and C are also incompetent. The preliminary objection therefore succeeds in part. Grounds 1, 2 and 3 of the Notice of Appeal and Issues A and C predicated thereon, are incompetent and accordingly struck out.
[MAIN APPEAL: DISMISSED, WITH N500,000 COST AGAINST THE APPELLANT]
1. ISSUE 1 OF THE MAIN ISSUE WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I am of the considered view that if the entire provisions of Section 12 of the NNPC Act are considered, it becomes clear that the suits to which sub-sections (1) and (2) relate are those suits in respect of the subject matter clearly spelt out in sub-section (1). That is, the purport of the decision in the Construzioni Generali case. The phrase “No suit shall be commenced…” refers to any suit in respect of the matters set out in sub-section (1).
ii. In the final analysis, I hold that the transaction between the parties, being one of simple contract and having not expressly incorporated them as terms of their contract, the provisions of Section 12(2) of the NNPC Act are not applicable. The respondent’s suit was properly instituted before the trial Court. I therefore resolve this sole surviving issue against the appellant.
– S.12 NNPC Act 2012;
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
Igunbor v. Afolabi (2001) FWLR (Pt. 59) 1284 165 D-E, this Court held, inter allia: “A final order or judgment is one which brings to an end, the rights of the parties in the action. It disposes of the subject matter of the controversy, or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles some step or question but does not adjudicate the ultimate rights of the parties in the action. However, where the order made finally determines the rights of the parties, as to the particular issue disputed, it is a final order, even if arising from an interlocutory application.”
Alor v. Ngene (2007) 17 NWLR (Pt. 1062) 103 @ 175-176 F-A, held inter allia: “…if the order, decision or judgment of a Court finally and completely determines the right of the parties in the case, it is final. But if it does not, it is interlocutory only. And in order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court in making the order.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It has been consistently observed by this Court that it is not an easy or straightforward task to distinguish between a ground of appeal, which is of law alone and one which is of mixed law and fact. The Court is enjoined to consider not only the bare wording of the ground but also relevant particulars supplied to determine the real complaint. – Kekere-Ekun, JSC. Warri Refining v. GECMEP (2020)
My Lords, it is well settled that in the interpretation of a statutory provision, it should not be considered in isolation or disjointedly, in order to ascertain the intention of the legislature. It must be construed as a whole. – Kekere-Ekun, JSC. Warri Refining v. GECMEP (2020)