A Federal High Court sitting in Lagos and presided over by Justice MB Idris has adjourned to February 10, ruling on the application filed by the second defendant, Global West Vessel Specialist Limited (GWVSL), for stay of proceedings of the substantive suit pending the determination of its appeal against the High Court’s earlier decision in July 2013 that it (GWVSL) is a necessary party to the substantive suit brought before the court by the Nigeria Liquefied Natural Gas Limited.
The suit with reference No. FHC/L/CS/847/2013 was brought by NLNG against the Attorney General of the Federation (AGF) and Minister of Justice and GWVSL.
When the matter came up for hearing Thursday, counsel to the Nigerian Maritime Administration and Safety Agency (NIMASA) and Mr. Mike Igbokwe (SAN) introduced his client as an ‘intervener’ but NLNG’s counsel and also Mr. Abiodun Layonu (SAN) objected to NIMASA being so introduced.
Layonu submitted that for purposes of the day’s business, NIMASA not being a party yet, as its application for joinder as a party is yet to be decided by the court, has no right of audience before the court, such as to be heard in the day’s proceedings.
The learned counsel argued that to allow NIMASA audience in the day’s business will amount to granting its application for joinder before the said application is decided upon by the court.
He, therefore, submitted that in the circumstances, NIMASA can only be seen but not heard as regards the application until its own application for joinder is heard and decided upon by the court.
But in his response, counsel to NIMASA argued that the application for stay will impact on its application for joinder and therefore urged the court to allow his client be heard in the decision as to whether or not to grant a stay of proceedings of the substantive suit.
Igbokwe further submitted that Section 36 of the 1999 Constitution gives his clients the right to be heard as the application for stay is one that concerns the determination of the civil rights of NIMASA and includes a question for determination against a government agency.
The learned counsel also informed the court that he had filed and served a counter affidavit as well as written address in respect of the application for stay and therefore urged the court to grant him audience in the proceedings regarding the application for stay.
However, on the insistence of NLNG’s counsel, it emerged that NIMASA had neither filed nor served any processes.
NLNG’s counsel also submitted that the Attorney General of the Federation (AGF), having not filed a counter affidavit and/or written address to the application for stay as required by the rules, is seriously handicapped in responding to the application even on points of law.
He therefore further urged the court not to grant NIMASA audience as far as proceedings relating to the application for stay is concerned.
In his own response, counsel to GWVSL, Mr. A. Owonikoko (SAN), submitted that his application was served on NIMASA as a party just as it was served on the AGF and NLNG and therefore NIMASA ought to be heard in the determination of the application.
But NLNG’s counsel countered his argument and submitted that service of a court process on a party alone does not confer a right to be heard in the matter on that party. While Applicant is at liberty to serve its processes on any one, rules of court determine who should be heard in court.
Counsel to the AGF, Dr. Fabian Ajogwu (SAN), agreed with the submissions of counsel for NIMASA and GWVSL and urged the court to rule that NIMASA ought to be heard in the application for stay.
In his ruling, the presiding judge agreed with the submissions of NLNG’s counsel, stating that a person who is not a party to an action may be joined by the court but until that is done, such a person can only be seen but not heard as far as the proceedings in the matter are concerned.
He ruled that NIMASA having not yet been joined as a party in the substantive suit cannot be heard in respect of the application for stay but can only be seen and not heard.
After the above ruling, counsel to GWVSL in arguing the application for stay of proceedings proper, informed the court that the application was for stay of proceedings pending the hearing and determination of his client’s appeal as well as the sister appeals (from NIMASA and AGF) against the High Court’s decisions of July 2013.
He informed the court that he had filed affidavits and further affidavits as well as written addresses in support of the application. He drew the court’s attention to the Notice of Appeal before the appeal court which said Notice among other things raise the issue of jurisdiction of the High Court in the substantive suit as well as the competence of the entire suit.
Responding to the above submissions, NLNG’s counsel posited that the Applicant (GW) had not satisfied the requirements for the grant of a stay of proceedings on the grounds that:
Contrary to the submission of counsel to GWVSL, counsel to NLNG argued that the appeal will not be rendered nugatory even if the appeal court rules that GWVSL is not a necessary party to the substantive suit.
According to him, the matter as presently constituted will remain even in the face of such striking out order as the AGF will remain a party.
In his submission, counsel to the AGF stated that he was not opposing the application for stay and furthermore, that Order 26, Rule 5 of the Federal High Court Rules allows the AG to respond to the application for stay whether or not he files a counter affidavit and/or written address.
The court adjourned to Monday February 10, 2014 for ruling on the application of GWVSL for stay of proceedings at the High Court pending the determination of its appeal at the Court of Appeal.
[Ejiofor Alike, This Day]