BCE CONSULTING ENGINEER V NIGERIAN NATIONAL PETROLEUM CORPORATION

Issue:

The facts available and acceptable are that sometime in March 1999, the appellants applied to the respondent through its subsidiary, National Petroleum Investment Management Services (NAPIMS) to provide consultancy services on call on/call off cost reimbursable basis to NNPC - NAPIMS on the SNEPCO BONGA Field Development Project under Oil Prospecting Licence 212 (OPL 212). By a letter dated 29th April, 1999, the respondent replied to say that approval has been given for it to negotiate with the appellants in respect of the proposed consultancy services. Sequel to the negotiations that ensued between the parties the respondent drew up a formal agreement which was executed by both parties with the effective date of 20th May, 1999 with Clause 2.1. of the agreement providing thus:- "2.1: The duration of this Agreement shall be 44months commencing from the effective date. Thirty (30) days prior to the expiration of the Agreement, NNPC may in its sole discretion give notice of its intention to extend the duration of the Agreement to BCE. Unless extended the Agreement shall terminate at the end of the 44 months period." In pursuance of the agreement, the appellants mobilized their personnel and materials and expended substantial sums of money in foreign currency particularly since there were foreign personnel involved in the performance of the services the greater percentage of which were to be rendered in New Orleans in the United States of America as well as the united kingdom. The appellants through an ex-parte application applied for an order on the 10th April, 2000 for the appellants to serve the originating processes and all other processes in the suit on the respondent at its Lagos Office at Plot 1637, Adetokunbo Ademola Street, Victoria Island, Lagos which order was granted and executed. There was no appeal against the order. The respondent brought an application dated and filed on 26th July 2000, praying for an Order striking out the suit on the grounds that: (a) The Plaintiff was not a juristic person, and (b) An Originating Summons was not an appropriate mode of commencing the suit. The application also prayed for an order rescinding the Order of the Court for the service of the Originating process on the respondent at its Lagos office. The appellants filed a Counter-affidavit against the application and exhibited thereto a copy of their Certificate of Incorporation in the United Kingdom. The trial court delivered a considered ruling on the application on 28th May 2001 in which it rejected the defendant's contentions and dismissed the application. Before dismissing the application, the learned trial Judge invoked provisions of Order 34 Rule 1 of the Federal High Court (Civil Procedure) Rules and made an Order amending the name of the original plaintiff from "BCE Consulting Engineers" to "BCE Consulting Engineers Ltd." Being dissatisfied with the Ruling, the respondent lodged an interlocutory appeal to the Court below. The trial court heard the substantive suit and delivered its judgment, awarding in favour of the appellants, the sum of $22,630,000.00 or its naira equivalent using the current rate of exchange as at the date of the agreement as general and compensatory damages. The respondent appealed and on the 10th November 2003, the court below granted the appellant's application for an order adding BCE Consultant Engineering (a Partnership Firm otherwise known as BCE Consulting Engineers) as 2nd respondent. The consolidated appeal was heard by the Court of Appeal which allowed the appeal stating that the trial court lacked jurisdiction to entertain the action because it was founded on simple contract and not for the Federal High Court and that the contract was vitiated by illegality in that the 1st plaintiff was a foreign company and not complied with Section 54 of the Companies and Allied Matters Act (CAMA). The current appeal before the Supreme Court is against that decision of the Court of Appeal.