EXXON MOBIL CORPORATION V. HRH OBONG (2018)

EXXON MOBIL CORPORATION 5959 LAS CONILAS BOULEVARD IRVING TEXAS UNITED STATES OF AMERICA v. HRH OBONG (DR.) EFFIONG B. ARCHIANGA (JP) & ORS

In The Supreme Court of Nigeria

On Friday, the 6th day of July, 2018

SC.631/2014

Before Their Lordships

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria

Between

EXXON MOBIL CORPORATION
5959 LAS CONILAS BOULEVARD IRVING TEXAS UNITED STATES OF AMERICA (USA) –Appellant

AND

1. HRH OBONG (DR) EFFIONG
B. ARCHIANGA (JP)
2. OBONG DANIEL A.
UDOMFIOK
3. OBONG DANIEL PETER EKPO
4. OBONG BASSEY I. AKPANIKA (JP)
5. CHIEF OWON SUNDAY AKAPANOWONG
6. WILLIAMS HENRY MKPAH
7. OBONGAWAN BESSIE O. NYAKPA
8. CHIEF EDMOND N. OKON
9. CHIEF ISUAMDONO I. OKON
10. CHIEF OKUTINYANG H. INYANG
(for themselves and on behalf
of the people and members
of Ibeno clan in Ibeno Local
Government Area of Akwa
Ibom State)
11. NIGERIAN NATIONAL PETROLEUM CORPORATION
12. MOBIL PRODUCTION NIGERIA UNLIMITED –Respondents

…………………….A…………………….

PAUL ADAMU GALINJE, J.S.C. (Delivering the Leading Judgement): The 1st to 10th Respondents herein by a writ of summons filed at the Federal High Court, Abuja on the 3rd of February, 2012, claimed against the 11th and 12th Respondents as well as the Appellant jointly the following reliefs: –
a. A declaration that the corporate structure of the 2nd defendant is such that it did not and cannot accept or discharge its corporate responsibilities in torts and contractual obligations to the magnitude of the volume of business exposures it engages in, should the plaintiff claim succeed.
b. A declaration that in view of the 3rd defendant’s declaration at the Securities and Exchange Commission of the United States of America afore pleaded, the 3rd defendant is estopped from denying its 100% ownership, and a fortiori, responsibility for all the torts and contractual obligations no matter howsoever described and arising from the 2nd defendant’s dealings in Nigeria.
c. An order compelling the 3rd defendant to file a rectification in the Corporate Affairs Commission of 
Nigeria clearly accepting full responsibility for the ownership and activities of the 2nd defendant in the plaintiffs’ territories and Nigeria.
d. An order declaring a nullity all transactions, rights and obligations entered in Nigeria by the 2nd defendant beyond the corporate liability of its shareholders as a corporate body whose shareholders liability is declared unlimited, these include all oil concessions, production facilities and accruable revenue derived therefrom.
e. A consequential order declaring the 1st defendant as the sole owner of the oil concessions, oil blocks, assets and finances arising from the purported joint venture operations or production sharing contracts entered into by or through the 2nd defendant over above its share capital or the liability of its shareholders afore pleaded, and a fortiori, that the 1st defendant shall assume full responsibility to pay the damages claimed in this suit which is more than five hundred times in excess of the share capital of the 2nd defendant or ultimate liability of its two shareholders.
f. A declaration that the 3rd defendant is bound to accept 100% responsibilities for its joint venture 
related torts and contractual liabilities given the structure and under capitalization of its subsidiary, the 2nd defendant.
g. An order setting aside all previous denials on oath or pleadings of the 3rd defendant, regarding its vicarious liability for the activities of the 2nd defendant in Nigeria.
h. SPECIAL DAMAGES as annotated in items i, ii, and iii under the head summary of values in the Plaintiffs Chartered Valuer’s Report N29,112,157,500.00.
i. DAMAGES FOR INTANGIBLE LOSSES as itemized under items (iv), (v) and (vi) under the head SUMMARY OF VALUES in the Plaintiffs’ Chartered Valuer’s Report N42,813,000,000.00.
j. GENERAL DAMAGES – N28,074,842,500.00 TOTAL – N100,000,000.00 (USD$ equivalent $66,666,666.6 @ N150 to USD1.0).
k. INJUNCTION restraining the defendants, by themselves, their agents or contractors from continuing or repeating the Oil Spills or Gas Flaring giving rise to these nuisances.
l. An order of mandamus directing the 1st defendant to discharge its duties by ensuring that their joint venture operators do clean up, detoxify and rehabilitate the plaintiffs’ lands ecosystem, underground waters and air quality.

The Appellant, who was the 3rd defendant at the trial Court filed its statement of defence on the 19th July, 2012 and subsequently filed a motion on notice on the 25th of September, 2012 in which it sought for the following orders: –
“1. Setting down for hearing and determination the threshold points of law raised by the Appellant in its statement of defence dated 18 July, 2012 and fully set out hereunder.
2. Striking out the name of the Applicant from this suit on the ground that the plaintiffs’ originating processes in this suit disclose no reasonable cause of action whatsoever and howsoever against the Appellant.
3. Dismissing and/or striking out this suit as against the Applicant on the ground that this Honourable Court lacks the requisite jurisdiction to entertain the claims against the Applicant, domiciled outside the territorial jurisdiction of this Honouroble Court and not having any presence whatsoever in Nigeria.
4. Dismissing and/or striking out this suit as against the Applicant on the ground that the averments in the plaintiffs’ statement of claim particularly as they relate to the Applicant, are entirely speculative,
wholly conjectural, without foundation or basis whatsoever and totally academic in nature.”

Under the grounds for the application, MR. PAUL USORO SAN, who filed the application on behalf of the Applicant set out some threshold points of law which he prayed the trial Court to hear and determine. This application was heard and in a reserved and considered ruling, Abdu-Kafarati J (as he then was) made reference to Order 29 Rules 4(a) and 5 of the Federal High Court (Civil Procedure) Rules 2009 and concluded as follows: –
“It is more than five months between the service of the plaintiffs’ claim on the 3rd defendant and the date the said 3rd defendant filed its statement of defence.
In situation like this the rules of Court provide that the point of law should be taken at the conclusion of trial. This provisions (sic) of the law couple with my earlier observation/finding makes it imperative to take the 3rd defendant’s points of law on jurisdiction at the conclusion of the trial in this matter. Accordingly hearing on prayers 2, 3 and 4 is suspended/deferred till the conclusion of trial in this matter. Prayer one on the motion paper having been 

…………………….B…………………….

conceded by the plaintiffs’ counsel is granted as prayed. I now call on the plaintiffs’ counsel to call his first witness.”
The Appellant herein was unhappy with that ruling. Being aggrieved, it appealed to the Court of Appeal without success. It has now brought this appeal. Its notice of appeal dated and filed on the 16th September, 2014 contains nine grounds of appeal.
Mr. Paul Usoro, learned senior counsel for the Appellant, at page 7 of the Appellant’s brief of argument dated and filed on the 11th December, 2014 formulated four issues for determination of this appeal. These issues read as follows: –
i. Was the lower Court right in holding, as it relates to this Appeal, that “the provision of Order 16 Rule 2 of the Federal High Court (Civil Procedure) Rules… has given the lower Court or learned trial judge a discretion to set down a point of law raised by a defendant and dispose of same ‘at any time before the trial’ or ‘after the trial’. In this case, the learned trial judge decided to exercise the second option open to him by ‘suspending’ or ‘deferring’ his opinion or views on the 2nd, 3rd and 4th points of law raised by the appellant and I think it was within his discretion to so decide”? (Grounds 1 and 2).
ii. Was the lower Court right in importing the provisions of Order 29 of the Federal High Court (Civil Procedure) Rules, 2009 (“FHC Rules”) into an Applicant that was brought by the Appellant pursuant to Order 16 of the FHC Rules and ruling that (i) “the appellant in substance was disputing the jurisdiction of the trial Court to try the claim of the 1st set of respondents and Order 29 of the Rules was applicable to the appellant’s application”; and (ii) that ‘it makes no difference that the appellant failed or omitted to specify that the application was also brought pursuant to the provisions of Order 29 of the said Rules”? (Grounds 3 and 4).
iii. Contrary to the lower Court’s holding, was the Appellant’s Points of Law Application resolvable and determinable despite the disputed issues and facts in the plaintiffs and Appellant’s pleadings before the Trial Court? Framed differently, were there sufficient undisputed fact and legal principles that would have resolved and determined the issues in the Appellant’s Point of Law Motion without the need for a recourse

to the contentious and disputed facts between the parties? (Grounds 5 and 6).
iv. Upon a consideration inter alia of all the preceding issues, was the lower Court justified howsoever in failing and/or refusing to invoke the powers of the Court pursuant to Section 15 Court of Appeal Act, Cap C36, Law of the Federation of Nigeria, 2004 (“Court of Appeal Act”) to determine the Appellant’s Points of Law Motion and, in particular, dismiss and/or strike out the suit against the appellant on the grounds that (a) the Suit disclose no reasonable cause of action whatsoever and howsoever against the Appellant; and (b) the Court lacks the requisite jurisdiction to entertain the claims against the Appellant, domiciled outside the territorial jurisdiction of this Honourable Court and not having any presence whatsoever in Nigeria; and (c) the averments in the Plaintiffs’ Statement of Claim particularly as they relate to the Appellant, are entirely speculative, wholly conjectural, without foundation or basis, whatsoever and totally academic in nature?
(Ground 7, 8 and 9).

The issues formulated by learned senior counsel for the Appellant are too prolix and seem to have obscured their proper understanding. Be that as it may, they are part of the appellant’s brief of argument which I must make use of, no matter how these issues are drafted.
Mr. Lucius E. Nwosu, learned senior counsel for the 1st -10th Respondents submitted one issue only for determination of this appeal, and it reads as follows: –
“Whether the Court below was right in affirming the decision of the learned trial judge in granting 3rd defendant/Appellant prayer 1 and thus deferring prayers 2, 3 and 4 till after he had taken evidence on the issues joined by the parties in their pleadings and if so, whether a party can appeal against an order he sought and consented to.”
Learned senior counsel for the Appellant filed a reply brief in which he set out argument in respect of the propriety of the issues distilled by the Appellant and went on to repeat arguments that were already canvassed in the Appellant’s brief of argument. This is not proper, since a reply brief is not meant to reargue the Appellant’s case.
The core issue that calls for determination in this appeal is whether the trial Court was right when it deferred determination of prayers 2, 3 and 4 of the Appellant’s application till the conclusion of trial? The Court of Appeal is of the opinion that the trial Court was right in reaching that decision.
In relation to the core issue for determination of this appeal, I am of the firm view that the sole issue formulated on behalf of the Respondents has adequately covered the field. This appeal will therefore be determined on that sole issue.
In arguing this appeal, learned senior counsel for the Appellant, submitted that the trial Court having exercised its discretion to hear and determine the Appellant’s points of law by granting prayer 1 on the motion aforesaid on the 1st of November, 2012, pursuant to Order 16 Rule 2(2) of the Federal High Court Rules, was legally precluded from reversing its decision in its ruling of 6th March, 2013. In support of this argument, learned senior counsel relied on Order 16 Rules 2(1), 2(2) of the FHC Rules and the authorities in Lawal vs. Dawodu & anor(1972) ALL NLR 707 at 718 – 719; Obioha vs. Ibero & 1 other (1994) 1 NWLR (PT. 322) 503 and Fadare & ors vs A-G Oyo State (1982) ALL NLR 26.
Mr. Lucius E. Nwosu, learned senior counsel for the Respondents in his argument, submitted that the issues raised by the Appellant in its prayers 2, 3 and 4 of the motion paper that gave rise to this appeal can only be established by evidence, since such matters went to the root of the 1st – 10th Respondents’ case. In a further argument, learned senior counsel submitted that the applicant having applied for an order to set down for hearing and determination of the threshold points of law, cannot appeal against an order that was made in his favour. In aid, learned counsel cited J.C Ltd vs. Ezenwa(1996) 4 NWLR (PT. 443) 391 at 408 – 409 Paras H – C.

…………………….C…………………….

In resolving the contentions by respective parties, the lower Court in its judgment at page 1811, vol. 3 of the Printed record of this appeal, held: –
“The provision of Order 16 Rule 2 of the Federal High Court (Civil Procedure) Rules has given the lower Court or learned trial judge a discretion to set down a point of law raised by a defendant and dispose of same “at any time before the trial” or “after the trial”. In this case, the learned trial judge decided to exercise the second option open to him by ‘suspending’ or ‘deferring’ his opinion or views on the 2nd, 3rd and 4th points of law raised by the appellant and I think it was within his discretion to so decide.”
The Appellant’s motion, subject matter of this appeal, filed on the 26th September, 2012, is at pages 809 – 812 of the printed record of this appeal. The heading of the motion shows clearly that it was filed pursuant to Order 16 Rules 2, 3, 4 and 5 of the Federal High Court (Civil Procedure) Rules 2009. Order 16 Rule 2(1) and (2) of the Federal High Court Rules is relevant to the determination of this appeal, and I reproduce same as follows: –
“16 (2)(1) Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
(2) A point of law so raised may, by consent of the parties, or by Order of the Court or a judge in chambers on the application of either party, be set down for hearing and disposed of at any time before the trial.”

A careful perusal of the Appellant’s application at the trial Court will show that the first relief prayed the trial Court to set down for hearing and determination of those points that are reflected in reliefs 2, 3 and 4 of the same application. In his ruling, as reflected elsewhere in this judgment, the learned trial judge having suspended and/or deferred hearing in respect of prayers 2, 3 and 4 nonetheless granted prayer 1.
Prayer 1 cannot be granted in isolation of prayers 2, 3 and 4, as the three prayers are those alleged points of law that are sought to be heard and determined by the trial Court.
However, can the Prayers of the appellant be considered in the light of the provisions of Order 16 Rule 2(1) and(2) of the Federal High Court (Civil Procedure) Rules 2009? In order to answer this question, I wish to set out those points of law which learned counsel wanted the trial Court to consider as follows: –
1. Striking out the name of the Applicant from this suit on the ground that the plaintiffs originating processes in this suit disclose no reasonable cause of action whatsoever and howsoever against the Appellant.
2. Dismiss and/or striking out this suit as against the Applicant on the ground that Court lacks the requisite jurisdiction to entertain the claims against

the Applicant domiciled outside the territorial jurisdiction of this Honourable Court and not having any presence whatsoever in Nigeria.
3. Dismissing and/or striking out this suit as against the Applicant on the ground that the averments in the Plaintiffs’ statement of claim particularly as they relate to the Applicant, are entirely speculative, wholly conjectural, without foundation or basis whatsoever and totally academic in nature.

The grounds for the Application as reflected in the Appellant’s motion paper are as follows: –
“1. The Applicant has pleaded in its statement of defence dated 18th July, 2012 that:
(i) It is entirely a separate entity from the 2nd defendant;
(ii) It does not have a subsidiary company or agency relationship howsoever or whatsoever with the 2nd defendant;
(iii) It is not domiciled in Nigeria and was not at any time material to this suit involved in oil exploration and/or exploitation in the locations mentioned in the plaintiffs’ statement of claim or at all;
(iv) Was not involved in and is not liable howsoever for the alleged environmental disasters and degradation alleged by the Plaintiffs; and

(v) Not being domiciled in Nigeria cannot howsoever be subjected to the jurisdiction of this Honourable Court based on the subject matter of this suit.
11. The threshold and preliminary issues that are raised in the Applicant’s statement of defence are wholly determinable based on the state of the parties’ pleadings and without any more. In particular, the question of: –
(a) subsidiary company or agency relationship or vicarious liability relationship between the Applicant and the 2nd defendant, involve issues of law which can only be determined with reference inter alia to the Companies and Allied Matters Act LFN 2004 (“CAMA”) and the Common Law Principles on master-servant and/or agency relationship;
(b) disclosure of cause of action against the Applicant by the plaintiffs’ suit is determinable by reference to the Plaintiffs’ originating processes, notably, their statement of claim, guided by the principles of law contained in decided authorities: and
(c) jurisdiction of this Honourable Court on a foreign party, in this case the Applicant, is determinable only on principles of law governing territorial jurisdiction.

…………………….D…………………….11. Order 16 Rules 2(1) and (2) of the Federal High Court (Civil Procedure) Rules, 2009 (“FHC Rules”) allows the Applicant to table before this Honourable Court for determination, as threshold points – of – law issues and at the earliest opportunity, the issues of law specified in paragraphs 1 and 11 above which are pleaded in the Applicant’s statement of defence.”
As can be seen from the grounds of the application, the issues which the appellant raised for hearing and determination in its application are contained in the parties’ pleadings. Pleading simply means the plaintiffs statement of complaint and the defendant’s answer to such a statement. Pleading usually takes place in civil cases. Black’s Law Dictionary, 8th Edition, by Bryan A. Garnei defines pleading as a formal document in which a party to a legal proceeding especially in civil suit sets forth or responds to allegations, claims, denial or defences. This Court has held in a number of cases that parties to a civil suit only plead facts and not evidence or law resulting from the facts; and that parties must give evidence in support of their pleadings. See U.A.C vs. Owoade13 WACA 207: Peenok Investments Ltd vs. Hotel Presidential Ltd (1982) 12 SC 1: Thanni vs. Saibu (1977) 2 SC 89.
In Ojoh vs. Kamalu (2005) 24 NSCQR 256; (2005) 18 NWLR (Pt. 958) 523. this Court, per Tobi, JSC said: –
“Pleadings not being human beings have no mouth to speak in Court, and so they speak through witnesses. If witnesses do not narrate them in Court, they remain monbund, if not dead at all times and for all times to the procedural disadvantage of the owner, in this context the appellant.” See Owners. M/V Gongola Hope vs. SC (Nig) Ltd (2007) 15 NWLR (Pt. 1056) 189 at 207 Paras A – C: Yusuf vs. Adegoke (2007) 11 NWLR (Pt. 1045) 332.”
The only prayer that has some element of any point of law in the appellant’s application is the 3rd prayer which attacked the territorial jurisdiction of the trial Court on the ground that the appellant has no presence in Nigeria, whatsoever. The jurisdictional issue raised by the Appellant is procedural as it constitutes a challenge to the locus standi of the 1st set of Respondents to sue in the circumstances of this case. The Appellant’s objection to the jurisdiction of the trial Court is based on allegation that the appellant has no presence in Nigeria.
This is the core issue to be determined in the substantive case before the trial Court. Apart from the fact that such allegation can only be established by evidence, the Courts are enjoined not to determine substantive issues at interlocutory stage.
Learned senior counsel for the Appellant argued forcefully that the trial Court was wrong in reversing its decision of 1st November, 2012 where it exercised its discretion to hear and determine the Appellant’s points of law by granting prayer 1. I do not think the trial Court was wrong. Indeed as a general rule, every Court of record has inherent jurisdiction on application and in appropriate cases and circumstances to set aside its judgment or decision. This jurisdiction may be exercised where for instance, the judgment or decision sought to be set aside is null and void ab – initio or there was a fundamental defect in the proceedings which vitiates and renders the same incompetent and invalid. See Alhaji Taofeek Alao vs. ACB Ltd (2000) 2 SCNQR 1067; Salami Omokewu & Ors vs. Abraham Olabanji & anor. (1996) 3 NWLR (pt. 435) 126; Sken Consult (Nig) Ltd vs. Ukey (1981) 1 SC 6. In such a case the Court may ex-debito justitiae set aside its decision and may make necessary consequential orders that the justice of each individual case demands. See Jatau vs. Ahmed (2003) 4 NWLR (pt. 811) 498. In the instant case, it is plain that the points of law that were raised for hearing and determination are neither points of law, nor are they matters that could be determined at that stage without encroaching into the substantive issues as set out in the 1st – 10th Respondents’ statement of claim. This is a classical case where interlocutory appeal should be discouraged.
The issues germane to this appeal in my view have been adequately considered in this lone issue for determination of this appeal, which I resolve against the appellant. The lower Court was right in upholding the decision of the trial Court. The argument on issues 2, 3 and 4 by learned counsel for the Appellant is a mere academic exercise which I am not interested in getting involved. This appeal is devoid of any merit. Accordingly same shall be and it is hereby dismissed. The cost of prosecuting this appeal is assessed at N1,200,000 in favour of the 1st to 10th Respondents collectively, and against the Appellant.
MUSA DATTIJO MUHAMMAD, J.S.C.: The lead judgment of my learned brother PAUL ADAMU GALINJE JSC just delivered represents my opinion on the appeal. I adopt the reasoning and conclusion outlined by his lordship as mine in dismissing the unmeritorious appeal. I abide by the order on cost contained in the lead judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft the judgment of my learned brother, Paul Adamu Galinje, JSC, just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and deserves to be dismissed.

The 1st – 10th respondents herein (1st set of respondents) as plaintiffs instituted an action against the 11th and 12th respondents (as 1st and 2nd defendants) and the appellant herein as 3rd defendant on account of multiple crude oil spillages allegedly occasioned by the joint venture operations of the 11th and 12th respondents. It was the 1st – 10th respondents’ case that the appellant, on account of being the owner of the 12th respondent, was liable for acts committed by it. After the exchange of pleadings, an application dated 25th September 2012, was filed on behalf of the appellant seeking the following reliefs:
“1. An order setting down for hearing and determination the threshold points of law raised by the applicant in its statement of defence dated 18th July 2012 and fully set out hereunder.
2. An order dismissing and/or striking out this suit against the applicant on the ground that this Honourable Court lack the requisite jurisdiction to entertain the claims against the applicant who is resident outside the territorial jurisdiction of this Honourable Court and has no presence in Nigeria.
3. An order striking out the name of the applicant from this suit on the ground that the plaintiffs’ originating processes in this suit disclose no reasonable cause of action whatsoever and howsoever against the applicant.
4. An order dismissing and/or striking out this suit against the applicant on the ground that the averments in the plaintiffs’ statement of claim particularly as they relate to the applicant are entirely speculative, wholly conjectural, without foundation or basis whatsoever and totally academic in nature.”

…………………….E…………………….Prayer 1 was not opposed by the 1st – 10th respondents and it was accordingly granted on 6/3/13.
In his ruling, the learned trial Judge pursuant to Order 29 Rules 1, 4and 5 of the Federal High Court (Civil Procedure) Rules 2009 deferred prayers 2, 3 and 4 until the conclusion of the trial. The Court was however of the view that oral evidence would be required to determine the said issue of law arising from Issue 1. The 1st – 10th respondents, as directed by the Court, called their first witness who gave his evidence in chief. The matter was adjourned for continuation of hearing. It was at this stage that the appellant appealed to the Court below. The said Court in a considered judgment delivered on 18/7/2014 dismissed the appeal and affirmed the decision of the trial Court.
Order 16 Rules 2, 3 and 4 of the Federal High Court (Civil Procedure) Rules provides:
“2. (1) A party shall be entitled to raise by his pleadings any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
(2) A point of law so raised may, by consent of the 
parties, or by order of the Court or a Judge in Chambers on the application of either party, be set down for hearing and disposed of at any time before the trial.
3. If, in the opinion of the Court or a Judge in Chambers the decision on the point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the Court or Judge in Chambers may thereupon dismiss the action or make such other order therein as may be just.
4. The Court or a Judge in Chambers may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge in Chambers may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

(Underlining mine).
The lower Court held, and rightly too, in my view, that the above provisions give the learned trial judge a discretion as to whether or not to set down a point of law for hearing and at what stage of the proceedings. Sub-paragraph (1) gives the Court the discretion to dispose of the issue at or after the trial. Sub-paragraph (2) gives the Court the discretion, upon the consent of the parties, to set down the point of law raised for hearing and disposal at any time before trial.
In the exercise of its discretionary powers, the Court has a duty to act judicially and judiciously, taking into account all the material facts and circumstances of the case and the applicable law. See: Williams & Ors vs. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 @ 152; University of Lagos vs. Aigoro (1985) 1 NWLR (pt. 1) 143 @ 148 F; C.B.N. vs. Okojie (2002) 8 NWLR (pt. 768) 48; Anachebe vs. Ijeoma & ors (2014) 14 NWLR (pt. 1426) 168.
Once the Court has exercised its discretion judicially and judiciously, an appellate Court would not interfere, even if it would have exercised its discretion differently if faced with the same situation. See: Ogbechie vs. Onochie (1988) 1 NWLR 370; Olaniyan vs. University of Lagos (1985) 1 NWLR (pt. 1) 156; Amobi vs. Nzegwu (2014) 2 NWLR (Pt. 1392) 510.
I agree with the lower Court that it was well within the exercise of the trial Court’s discretion to defer consideration of issues 2, 3 and 4 until the trial. With regard to issue 1, the trial Court acceded to the appellant’s request to set it down for hearing but was of the view that in order to determine the issue of law, some evidence would be required, hence the directive to the plaintiffs to call their first witness. As has been pointed out extensively in the lead judgment, in order to determine, inter alia, whether or not the appellant is a distinct entity from the 12th respondent and whether it is domiciled in Nigeria to confer jurisdiction on the Court, are all issues of fact requiring evidence.
I agree entirely with the Court below that the learned trial Judge exercised his discretion judicially and judiciously having regard to the materials before him and the law and fully bearing in mind the admonition that Courts must avoid determining substantive matters at the interlocutory stage.
This interlocutory appeal is an unnecessary and time-wasting exercise. It is vexatious and without merit. It is hereby dismissed. I abide by the award of costs as contained in the lead judgment.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Galinje, JSC,obliged me with the draft of the leading judgement delivered now. I agree with His Lordship that this appeal is, purely, academic. As it is well-known, academic issues which are, almost always, hypothetical, do not engage the attention of Courts since they are not the proper fora for their ventilation, Imegwu v. Okolocha (2013) 9 NWLR (pt. 1359) 347; and, above all, they are of no utilitarian value, Abe v. UNILORIN (2013) 16 NWLR (pt. 1379) 183.
It is for these, and the more elaborate, reasons in the leading judgement that I, too, shall enter an order dismissing this appeal for being, wholly, unmeritorious. I abide by the consequential orders in the leading judgement.
Appeal dismissed.
EJEMBI EKO, J.S.C.: The lead judgment by my learned brother, PAUL ADAMU GALINJE, JSC, which I had the privilege of reading in draft has, in dismissing this interlocutory appeal, pointedly stated that the purported “points of law” on which Mr. Paul Usoro, SAN, had predicated the application at the trial Court, “are neither points of law, nor are they matters that could be determined at that stage without encroaching into the substantive issues set out in the “Plaintiffs’ statement of claim. I agree entirely.

…………………….F…………………….

The frivolity of the Appellant’s application, the partial dismissal of which has culminated in this appeal, lies in the fact the Appellant stated ex facie the grounds for the reliefs sought inter alia (and duly annotated by me) as follows –
1. The Appellant has stated in its statement of defence dated 18th July, 2012 that-
i. It is an entirely a separate entity from the 2nd Defendant; (which is a statement of fact).
ii. It does not have a subsidiary company or agency relationship howsoever or whatsoever with the 2nd Defendant,
(Another Statement of fact which the Plaintiffs must prove a lie of in order to succeed in their claim against it. The Plaintiffs maintains that this statement of fact contradicts any statement on oath by this same Applicant (Appellant).
iii. It is not domiciled in Nigeria and was not at any time material to this suit involved in oil exploration and/or exploitation in the locations mentioned in the Plaintiffs Statement of Claim and or at all; (Another Statement of fact joining issues with the Plaintiffs 
on the crux of their dispute with the Appellant in particular).
iv. Was not involved in and is not liable howsoever for the alleged environmental disasters and degradation alleged by the Plaintiffs; and (Still another statement of fact requiring proof in order that the Appellant may be entitled to judgment on merits in its favour).
v. Not being domiciled in Nigeria cannot howsoever be subjected to the jurisdiction of this Honourable Court based on the subject matter of this suit.
(This ground is ancillary to, and consequential on, any findings of fact upon the proofs of grounds (i)-(iv) above).

The Appellant, itself, admitted whole heartedly in paragraph 11 of the said grounds for the reliefs sought in its application that –
The threshold and preliminary issues that are raised in the Applicant’s Statement of Defence are wholly determinable based on the state of the parties’ pleadings –
It becomes obvious that, when from “the state of the parties’ pleadings” and the issues raised therein, which unless admitted must be proved and/or rebutted by evidence, that the procedure resorted to by the Appellant at the trial Court does not avail it. Evidence is required, “based on the state of the parties’ pleadings, to prove the hotly disputed facts. This therefore brings into operation Sections 131, 132 and 133 of the Evidence Act, 2011.
I cannot therefore find any fault with the factual statement made by the lower Court that the –
Appellant’s application could not be determined in isolation of its Statement of Defence- These are issues of fact.
And they are weighty too. Curiously these adverse findings of fact are not appealed against. They persist and remain binding on the parties; as facts not disputed are taken as admitted or accepted. It is thus evident that the Appellant, not challenging the material findings of fact against it, is merely and only engaging itself on purely ancillary issues.
The essence of Order 16 Rule 2 of the Federal High Court (Civil Procedure) Rules, under which Mr. Usoro, SAN of Counsel for the Defendant/Appellant proceeded in the application at the trial Court, is unambiguously categorical in what it provides, that is
2(1) A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
(2) A point of law so raised may, by consent of the parties, or by order of the Court or Judge in Chambers on the application of either party, be set down for hearing and disposed of at any time before the trial.

Order 16 Rule 2 speaks of point of law. It must be a point of law, and neither point of mixed law and fact nor point of pure facts. Mr. Usoro, SAN seems to have misconceived this point. His application, “based on the state of pleadings,” which according to him the ”preliminary issues-raised in the Applicant’s statement of Defence are wholly determinable – on the state of the parties’ pleadings,” Cannot come under Order 16 Rule 2. The disputed facts, on the state of the parties’ pleadings, are matters for trial and the discharge of the parties’ respective burdens of proof.
Order 16 Rule 2, in essence, enables the trial Court to dispose, in limine, of matters in respect of which the facts are plainly not in dispute and the point of law is determinable on uncontroverted facts which require no evidence on any disputed fact. In the instant case the Plaintiffs, as 1st – 10th Respondents herein, from the state of the parties’ pleadings, are required to prove inter alia their weighty assertion that the Appellant has 100% interest/equity in the 12th Respondent, Mobil Production Nigeria unlimited, and it is a subsidiary of the Appellant in respect of whom the Appellant owes a duty of vicarious liability. The Appellant denies these facts. And as the Court below correctly found: these are issues of fact. These issues of fact cannot be determined or disposed of limine without trial. Order 16 Rule 2 of the Federal High Court (Civil Procedure) Rules is suited only for issues of in disputed facts. Section 15 of the Court of Appeal Act, 2004 is also not suited for hotly contested or disputed facts in the pleadings in respect of which no evidence has been called at the trial Court.
The jurisdiction vested in the Court of Appeal by Section 15 of its enabling Act, in every appeal before it, to “have full jurisdiction over the whole proceedings – and re-hear the case” is no more than the review jurisdiction vested in it to consider an alleged error or omission committed by the trial Court or the Court immediately below it. It does not avail the Court of Appeal to usurp the adjudicatory function of the trial Court. The Appellant, apparently erroneous in its view of Section 15 of the Court of Appeal Act, expects the lower Court to step in at this juncture to start reviewing phantom evidence that have not been called on the state of the parties’ pleadings and resolve the disputed facts.
It remains good law and the law is apposite, as established in AMASON v. R.T.D.T.C (2009) 17 N.W.L.R. (Pt. 1170) 207 at 211, that Courts must refrain from commenting on issues touching on the substantive matter, yet to be tried and disposed of, when dealing with an interlocutory application. The purpose of this rule is the avoidance of prejudicial Comments on, or the prejudging of, the substantive matter. The learned trial Judge had well advised himself on this rule; when, according L.E. Nwosu, SAN of Counsel to 1st – 10th Respondents/Plaintiffs, it deferred comments on prayers 2, 3 and 4 till after he had taken evidence on the issues joined by the parties in their pleadings. I cannot fault the Court of Appeal’s decision affirming the learned trial Judge posture and stance on this.

…………………….G…………………….

The trial Court’s discretion, reading Sub-rules (1) & (2) of Rule 2 of Order 16 of the Federal High Court (Civil Procedure) Rules together, is not in any doubt. Upon an application of any party to set down for hearing any point of law raised in the pleadings the trial Judge, who tries the cause, has the discretion to dispose of the point of law either at the point of his decision on the application “or after the trial.” The trial Judge is the master of any discretion vested in him by law. Unless he exercised the discretion injudiciously or not judicially the Appeal Court will not interfere in the exercise of that discretion: UNIVERSITY OF LAGOS v. OLANIYAN (1985) 1 N.W.L.R. (Pt. 1) 156; BANKOLE v. DADA (2003) 11 N.W.L.R. (Pt. 830) 174.
This interlocutory appeal is frivolous. It has no scintilla of any substance. At best it is an abuse of Court’s process. It is accordingly dismissed. I hereby adopt the lead judgment including the order as to costs made therein.

Representation

MR PAUL USORO, SAN with him, Ime Edem-Nse and Ejike Wogu For Appellant

AND

MR L.E NWOSU, SAN with him, Anthony Ayaogu and Z.
A Nwosu for the 1st sets of Respondents from 1 – 10.
CHIEF I. A. ADEDIPE, SAN with him, Chinasa Unagbubam and Munachiso Michael – for 11th Respondent.
MR. DANIEL OHABUIKE with him, Y. B Daniel Kalio – for 12th Respondent For Respondent

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