SPRINGFIELD EXPLORATION AND PRODUCTION LTD VRS ENI GHANA EXPLORATION AND PRODUCTION LIMITED (H1/98/2022) [2023] GHACA 159 (29 June 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA. A. D. 2023 CORAM: JUSTICE HENRY KWOFIE (MR.) J. A. (PRESIDING) JUSTICE J. BARTELS-KODWO (MRS.) J. A. JUSTICE KWEKU T. ACKAAH-BOAFO (MR.) J. A SUIT NO: H1/98/2022 29TH JUNE, 2023 SPRINGFIELD EXPLORATION AND PRODUCTION LTD --------- Plaintiff/Respondent VERSUS 1. ENI GHANA EXPLORATION AND PRODUCTION LIMITED ------- 1st Defendant/Respondent. 2. VITOL UPSTREAM GHANA LIMITED ----- 2nd Defendant/Appellant __________________________________________________________ J U D G M E N T __________________________________________________________________ Ackaah-Boafo, JA pg. 1 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment i. Overview: [1] This appeal is from the ruling of the High Court, Accra, the Commercial Division which declined to strike out the Statement of Claim and dismissing the suit against the 2nd Defendant, (Vitol Upstream Ghana Limited) on the grounds that the Plaintiff (Springfield Exploration and Production Limited) pleadings disclose no reasonable cause of action and is otherwise an abuse of process of the court. The basis of the appeal is that the judge below was wrong on all counts. Before dealing with the arguments advanced for and against the appeal, let us look at the background of the case. [2] In the proceedings at the High Court, the Plaintiff pleaded among other things that it acquired rights to explore, develop and produce petroleum in accordance with terms of an agreement it entered into with the Ghana National Petroleum Corporation [GNPC] sometime in 2016 over a contract area known as West Cape Three Points Block 2 (WCTP- 2). It also pleaded that the Defendants (Appellant herein and the 1st Defendant) were granted rights of exploration, development and production over a contract area known as Offshore Cape Three Points (OCTP) with a combined interest of 79.8%, being 44.44% and 35.36%. The Plaintiff further pleaded that Defendants contract area of the OCTP included the currently producing Sankofa East Oil Field and Sankofa Main Gas Field generally referred to as “Sankofa Production Area”. [3] The Plaintiff further pleaded that its contract area of WCTP-2 and the Defendants’ OCTP share a common boundary. The Plaintiff contended that sometime in the early part of 2018, it came to its attention that the accumulation of petroleum in the Defendants’ Sankofa Cenomanian Reservoir extends beyond its contract area into the Plaintiff’s contract area of WCTP-2 where petroleum within the Plaintiff’s contract is accumulated. According to the Plaintiff, as a result of the said accumulation, any exploration and production activities carried out in Defendants’ Sankofa production area automatically pg. 2 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment affected the petroleum accumulation in the Plaintiff’s contract area of the WCTP-2 and vice versa. [4] The Plaintiff further pleaded that to confirm the said information, it engaged the services of an independent expert to determine whether the Defendants’ Sankofa Cenomanian Reservoir indeed extended into its contract area. According to the Plaintiff, the independent expert confirmed its findings. The Plaintiff further pleaded that it is statutorily provided that where an accumulation of petroleum extends beyond the boundaries of one contract area into another contract area, the Minister responsible for petroleum is required, in consultation with the Petroleum Commission, to direct the relevant contractors (in this case, the Plaintiff and Defendants) to enter into an agreement to develop and produce the accumulation of “petroleum straddling their respective contract areas, as a single unit”. [5] Based on the above, the Plaintiff pleaded that it wrote a letter dated March 20, 2018 to the Ministry to request the Minister to exercise its statutory mandate to direct the Plaintiff and Defendants to unitise the Afina and Sankofa fields in accordance with the statutory provisions to regulate the exploration and production of petroleum. The Plaintiff further pleaded that the Minister in response to the letter, tasked the GNPC to independently assess the Plaintiff’s claim. The case of the Plaintiff is that the GNPC upon concluding its investigations confirmed the Plaintiff’s position and therefore, the Minister by a letter dated April 9, 2020 wrote to the Defendants to request them to commence the process of unitization. The Plaintiff further pleaded that it proposed a date of April 29, 2020 through an email to the Defendants to enable them meet the Minister’s deadline. According to the Plaintiff, it followed up the email with a letter dated May 7, 2020 to request certain data from the Defendants “necessary to progress the statutorily required unitization” but the Defendant failed to respond and also failed to submit the data. [6] The Plaintiff further pleaded that by an email dated May 9, 2020 to the Defendants, a meeting was set for May 12, 2020 between the respective parties and officers of GNPC pg. 3 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment “in furtherance of the unitization process”. It is the case of the Plaintiff that the said meeting took place and a subsequent one also set for May 15, 2020 took place at which time the parties agreed that they amend “the Confidentiality Agreement signed in 2016 between the Plaintiff and the 1st Defendant when the Defendants were looking to acquire interest in the Plaintiff’s contract area after observing that the accumulation of petroleum deposits in Defendants contract area straddled into Plaintiff’s”. The Plaintiff further pleaded that the Defendants by a letter dated May 18, 2020 informed the Plaintiff that before “any discussion on the unitization process would commence, there had to be an exchange of raw technical data on a like for like basis to ascertain whether the oil fields straddled”. [7] According to the Plaintiff it responded that the demand was not a necessary precondition for the unitization process. From the pleadings filed, it is the said demand by the Defendants and the subsequent events including a letter dated June 5, 2020 by which the Defendants wrote to the Plaintiff that “it has not been established that an accumulation of petroleum extends beyond the boundaries of the OCTP contract area” which made the Plaintiff form the opinion that the Defendants were not willing and ready to comply with the Minister’s directive, hence the institution of the law suit. It is the case of the Plaintiff that the Defendants deliberately refused to comply with the Minister’s directive made pursuant to the provisions of Section 34 of the Petroleum Exploration Act, 2018 (Act 919). [8] The Plaintiff contended that it owns about 54% of the accumulated petroleum products in the straddled areas and the Appellants’ have not provided any contrary facts and/or confronted the GNPC since their attention was drawn to that by the GNPC. It is therefore the case of the Respondent that the Defendants’/Appellants have been exploring and producing petroleum products from resources jointly owned by them without accounting to it even though it owns the lion share. The Writ of Summons was issued on July 10, 2020. pg. 4 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment ii. The Writ of Summons & Application: [9] The Plaintiff’s specific reliefs endorsed on the Writ of Summons are as follows: “(i) An order directed at Defendants to comply with the directive issued by the Minister of Energy in his letter of 9th April, 2020 and enter into an agreement forthwith with Plaintiff to produce and develop the accumulation of petroleum in the Sankofa and Afina fields as a single unit. (ii) An order directed at Defendants to cooperate with Plaintiffs to produce and develop the accumulation of petroleum in its Sankofa and Afina fields as one unit. (iii) An order directed at Defendants to render accounts to the Plaintiff in respect of all costs and proceeds received by the Defendant, for its exploration and production activities in the Defendant’s Sankofa field from the year 2009, when the Defendants commenced exploration of the said field till date. (iv) An order that any income, profits or other finds due the Plaintiff from the Defendants’ exploration and production activities in the Defendant’s field be paid to the Plaintiff upon taking such account. (v) Costs on full indemnity basis. [10] Following the service of the writ of summons on the Defendants, on August 12, 2020 the Appellant herein, Vitol Upstream Ghana Limited filed an application to strike out the suit on grounds that the suit disclosed no reasonable cause of action and also that the suit was an abuse of process. The application was premised on a 54 paragraph affidavit which according to the Applicant was based on the reasoning that first, the orders the Plaintiff sought from the court were executive, discretionary and statutory pg. 5 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment in nature, and could only be granted by the Minister. Second that, the law put ownership or proprietary interest in the petroleum (the subject-matter of the dispute) in the state/president thus disabling the Plaintiff from suing. Thirdly, the Plaintiff had not met critical preconditions to unitisation (such as demonstrating a technical case for unitisation) and would in any event need to: (i) enter into unitisation agreement with the Defendants; and (ii) bear its proportionate share of costs incurred by the Defendants on the Sankofa Field before it could acquire any interest in a unit area. Based on the above, it was contended that the Plaintiff was disabled from asserting rights to the Sankofa Field and suing in court. [11] On September 3, 2022 the Commercial Division of the High Court dismissed the application in one composite ruling including the 1st Defendant’s application premised on the grounds that the Plaintiff lacks capacity to institute the action. Dis-satisfied with the ruling of the court below, each Defendant launched an appeal against the ruling. I note that a separate judgment has been written in respect of the 1st Defendant’s appeal which has the file number H1/91/2022. This decision is therefore in respect of the 2nd Defendant/Appellant appeal. For ease of reference, I shall use Plaintiff/Respondent and 2nd Defendant/Appellant interchangeably to refer to the parties. iii. The Grounds of Appeal: [12] The ruling is at pages 329 – 349 of the Record of Appeal (ROA). The Appellant filed the instant appeal on September 17, 2020 and surprisingly raised as many as 13 grounds of appeal. The Notice of Appeal is at pages 350 – 352 of the ROA. The grounds of appeal filed are as follows: pg. 6 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment a. The learned judge erred in failing to consider and/or address Appellant’s arguments in her ruling; b. The learned judge erred in concluding that reliefs (ii) – (iv) sought by Plaintiff/Respondent do not usurp or otherwise relate to the powers of the Minister under the Petroleum Act and the Petroleum Regulations; c. The learned judge erred in law in holding that Plaintiff/Respondent has any proprietary rights or other interest in petroleum in the reservoir in its Afina field; d. The learned judge erred in law in holding that Plaintiff/Respondent has any rights or other interest in petroleum produced from Sankofa field; e. The learned judge erred in law in finding that Plaintiff/Respondent had sufficient interest in the subject matter of the claim and therefore had locus standi; f. The learned judge erred in law in holding that section 34 of the Petroleum Act confers any rights on Plaintiff/Respondent to unitization or otherwise to share in the proceeds of petroleum produced from a different block and that one of the purpose of section 34 is to protect the “correlative rights” of Plaintiff/Respondent; g. The learned judge erred in law in holding that Plaintiff/Respondent had or could have any cause of action entitling it to any of the reliefs it seeks in these proceedings, whether at common law or in equity, including in holding that Article 11 of the Ghanaian Constitution did or could give rise to any actionable rights; h. The learned judge erred in law dismissing Applicant’s application on the basis that the Court could at some future point recognise a cause of action that would entitle Plaintiff/Respondent to the reliefs it seeks in these proceedings; pg. 7 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment i. The learned judge erred in law in holding that the Court has the power to order the parties to enter into any agreement or to dictate the terms of any such agreement; j. The learned judge erred in law in finding that Plaintiff/Respondent had standing because the Minister might not take appropriate action; k. The learned judge erred in dismissing the relevance of the Minister’s letters dated 27th July, 2020 and 19th August, 2020, which suspend and supersede the Minister’s 9th April, 2020 letter (on which Plaintiff/Respondent’s first relief is based) and which make clear that the Minister is exercising his powers under the Petroleum Act to determine whether unitization is appropriate and further erred in characterising the issues raised by these letters as one of mootness; l. The learned judge erred in law in holding that the Court should hear a moot claim because it would contribute to the development of the common law; m. The ruling of the learned judge is against the weight of the evidence on record. n. Additional grounds of appeal may be filed upon receiving the record of Appeal. [13] It is noted for the record that no additional ground of appeal was filed by the Appellant as stated in the ground of appeal. The relief sought from the Court of Appeal is for an order setting aside the ruling of the trial Court and judgment entered in favour of the Appellant. It is also noted that Counsel in his written submission recognized the 13 grounds of appeal but focused on seven of the grounds. Counsel stated “Vitol will not maintain grounds A, H, I, J, K and L, because the relevant errors of law and as to weight of evidence are sufficiently covered in other grounds that will be addressed”. iv. Competence of the Grounds of Appeal: [14] Reacting to the grounds of appeal filed, Counsel for the Respondent in his written submission filed submitted that, save the omnibus ground of appeal, all the grounds of pg. 8 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment appeal are incompetent and contrary to the mandatory rules governing formulation of grounds of appeal. Counsel submitted that the grounds B, C, D, E, F & G maintained by the Appellant are incompetent grounds of appeal because the Appellant “woefully failed to comply with the mandatory statutory rules governing the formulation of grounds of appeal, endorsed on a notice of appeal, for the purposes of invoking the jurisdiction of this Court”. Explaining the submission, Counsel stated that “our contention is simply that, the grounds of appeal upon which this appeal is maintained by Appellant herein merely alleges an error of law without setting out the particular error of law as required by the rules of this Honourable Court. Counsel referred to Rule 8(4) of C. I 19 which provides that; “(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.” [15] Counsel also referred to the case Zabrama v Segbedzi1 to say “The Courts have emphasized the need for particularization of errors of law and/or misdirection, in a ground of appeal”. Counsel referred to what the Court referred to as the rationale for particularizing the misdirection and/or error in law alleged against the decision of the court below as follows: “The requirement is that the grounds stated in the notice of appeal must clearly and concisely indicate in what manner the trial judge misdirected himself either on the law or on the facts. To state in a notice of appeal that “the trial judge misdirected himself and gave an erroneous decision” without specifying how he misdirected himself is against the rules and renders such a ground of appeal inadmissible. The rationale is that a person who is brought to an appellate forum to maintain or defend a verdict or decision which he has got in his favour shall understand on what ground it is impugned” 1 [1992] 2 GLR 221. pg. 9 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment [16] Based on the above, Counsel submitted that a cursory reading of ground (B) advanced reveals that the Appellant merely alleges that the judge erred in concluding that reliefs (ii) – (iv) sought by Plaintiff/Respondent do not usurp or otherwise relate to the powers of the Minister under the Petroleum Act and the Petroleum Regulations. There is no indication of whether the error is that of law or fact. Counsel submitted that the ground is not admissible because there is no stipulation of the nature of the error and why the Court erred as prescribed by the rules. Learned Counsel further submitted that all the grounds of appeal fail to indicate why, how, and what the error committed by the court is, be it of law or fact. Counsel referred to the Supreme Court decision of Adams Addy & Adu Akwaanor v Solomon Mintah Ackaah2 to support his submission. In his view, the Appellant leaves the Court and the Respondent “in clear speculation as to what error the Court may have committed. This exposes the clear incompetent nature of the grounds of appeal”. Apart from the lack of particulars, Counsel further submitted that some of the grounds of appeal such as grounds (F) and (G) are argumentative and sin against Rule 8(5) of C. I. 19 and are therefore inadmissible. He therefore prayed the Court to hold that the grounds of appeal are incompetent and not acceptable. [17] Counsel for the Appellant filed a 22 page reply submission on July 13, 2022 in response to the Respondent’s Counsel’s submission. Responding to the above submission of the Respondent in regards to the competence of the grounds of appeal, Counsel submitted that the Appellant disagrees with the submission on two main grounds. Counsel submitted that the grounds of appeal provide enough particulars of the errors of law and fact complained of and are not argumentative and narrative. According to Counsel, the cases cited by Respondent’s counsel are improper because they are distinguishable and inapplicable. In this case, it is the submission of Counsel that the grounds of appeal set out are concise and not speculative. Counsel referred to the 2 Civil Appeal No. J4/19/2021 Judgment is the 14th day of April 2021. pg. 10 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment unreported decision of this court titled Volta River Authority v. Benedict Atta Fynn3. Counsel submitted that the rationale for providing particulars or error and misdirection of law is to avoid speculation on the part of the Respondent as to what the finding or conclusion of the court is in the appeal. [18] In Counsel’s view, that is not the case in so far as the instant grounds of appeal are concerned because according to him, in all the grounds of appeal except the omnibus ground, the Appellant has specified how the court below “misdirected itself on the law, in compliance with the Court of Appeal’s direction in Zabrama v Segbedzi (supra)”. Counsel further submitted that grounds (F) and (G) are not narrative because “they do not contain any statement which seek to contextualize the argument or illustrate the point being made” and also not argumentative, because they do not contain “evaluative averments suggesting a desired conclusion, or include inferences and characteristics of facts or conclusions drawn from the facts”. [19] Appellant’s Counsel further submitted that the cases cited by Respondent’s counsel are not applicable because the grounds of appeal in those cases are markedly different from the grounds of appeal presented in the instant appeal. Counsel concluded that in so far as the Respondent’s Counsel has been able to file his responding submission raised under the various grounds of appeal, it is clear that he has not been handicapped by the “complaints” raised in the submission about the grounds of appeal. Counsel therefore prayed the Court to make a determination that there is an issue based on the grounds of appeal filed. He also submitted that “substantive justice would be defeated” if the court did not deal with the appeal on its merits. [20] My Lords, having considered the arguments traded by counsel and internalized the ratios in the cases cited by both counsel and in fidelity to the law, it is my opinion that the contentions of Respondent’s counsel are well articulated and have merit. There are a 3 Civil Appeal (H1/37/2014) dated 28 July 2015. pg. 11 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment number of judicial pronouncements by the apex court on the consequences of non- compliance with similar mandatory provisions pursuant to Rules 6(4) and (5) of C. I. 16 (The Supreme Court Rules), which are in pari materia with Rules 8(4) and (5) of C. I. 19. In the case of F. K. A Company Ltd. v. Nii Teiko Okine (Substituted by Nii Tackie Amoah VI) Civil Appeal No. J4/1/2016 dated 13th April 2016, the Supreme Court speaking through Akamba JSC stated that: It is important to state that the adjudication process thrives upon law which defines its scope of operation. It is trite to state for instance that, nobody has an inherent right of appeal. The appeal process is the creature of law. Any initiative within the context of the adjudication process must be guided by the appropriate, relevant provision be it substantive law or procedural law. As courts, if we fail to enforce compliance with the rules of court, we would by that lapse be enforcing the failure of the adjudication process which we have sworn by our judicial oaths. [21] Rule 8(4) and (5) of the Court of Appeal Rules, C. I. 19 state as follows: “(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated”. (5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively. [Emphasis Mine]. It cannot be denied that the rules are couched in mandatory terms and ought to be complied with. It is trite that there is no inherent right in any litigant to appeal as an appeal is a creature of statute. Therefore, a party who is piqued by a ruling/judgment and desires to appeal against same must comply with the conditions spelt out by the law regarding an appeal. See In Re Yendi Skin Affairs; Yakubu II v Andani [1984-86] 2 GLR 226. In my respectful opinion, once misdirection and error are alleged, an Appellant pg. 12 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment ought to provide particulars of same. [22] The Appellant is mandated by law to provide particulars of the alleged errors in grounds of appeal set out in the Notice of Appeal. In this case I am of the view that particulars of the error for grounds B, C, D and E should have been provided because without the particulars the Court is left to speculate as to what the alleged errors are. The allegation of error(s) must be set out in concise, clear and plain terms. It is not for the Court to speculate and infer. Again, grounds (F) and (G) also contain allegations of error, but again no particulars are provided. Apart from that, I agree with Counsel for the Respondent that they are couched in narrative terms. In my view the grounds of appeal were not elegantly drafted/formulated and in compliance with the rules of court. As this Court is bound by its own rules and the decisions of the Supreme Court, all the grounds of appeal apart from the omnibus grounds as set out in the Appellant’s Notice of Appeal contravene the mandatory provisions in Rules 8(4) and (5) of C. I. 19. Consequently, all those grounds of appeal are inadmissible and unarguable. They are hereby struck out. [23] The consequence of the above order is that there are technically no grounds of appeal to be considered in this appeal. I note that the Supreme Court, faced with a similar scenario in the case of Vodafone Ghana Ltd. v International Rom Ltd. [2015-2016] 2 SCGLR 1389, dealt with the matter on the omnibus ground. After striking out the grounds of appeal pursuant to Rules 6(4) and (5) of C. I. 16, the court per Akamba JSC opined as follows: “In order not to yield overly to legal technicalities to defeat the cries of an otherwise sincere litigant, we would and hereby substitute them with what actually emerged as the core compliant and general ground which is that ‘the judgment is against the weight of evidence’. [24] Unlike the Supreme Court which had to substitute the impugned grounds of pg. 13 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment appeal with the omnibus ground, the Appellant herein set the omnibus ground of appeal as ground (m). With an appeal being in the nature of a re-hearing, the omnibus ground of appeal enables this Court to re-evaluate the entire evidence as contained in the record of appeal. By that ground of appeal, the Appellant has basically invited the court to evaluate the totality of the evidence on record by putting ourselves as Appellate judges in the shoes of the trial court to see if we would come to the same conclusion as the trial court in the consideration of the application. In other words, the contention that the ruling was against the weight of evidence is an invitation to this court to take a second look at the evidence on record by means of an examination of the record to find out if the findings and conclusions of the trial Judge are supported by the evidence proffered at the court below or the conclusions are perverse. See Tuakwa v. Bosom (2001-2002) SCGLR 61 and the unreported case of Olivia Anim v. William Dzandzi Suit Number Civil Appeal No. J4/10/2018 delivered on the 6th June 2019. v. The issue and submission of Counsel: [25] My Lords, in the light of the position above, I am of the respectful view that we can determine the instant appeal based on the omnibus ground of appeal by considering the issue whether or not the learned trial Judge erred or misdirected herself on the law in determining the Appellant’s application that the Respondent’s pleadings disclose no reasonable cause of action and is an abuse of the process of the court. Appellant’s Counsel’s Argument: [26] In the submission filed by Counsel, he urged on this court that there was an error on the part of the High Court in dismissing the application. Counsel implored this court to assess the decision of the court below in the light of the evidence presented and apply the law. Counsel argued that the evidence presented to the court below was that the parties have separate Petroleum Agreements which permit them to explore, develop and produce petroleum at the WCTP-2 and the OCTP contract areas. According to Counsel pg. 14 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment the Defendants have spent over US$6 billion in exploring, appraising, developing and producing oil and gas from OCTP, with over half of that amount being incurred in relation to the exploration, appraisal, development and production from the Sankofa Field. While, the Plaintiff has only drilled one exploration well on the WCTP-2 (the Afina Discovery), and not done any appraisal of the Afina Discovery to establish potential development plan, and has not demonstrated that the Afina Discovery could be commercialised. [27] The further argument of the Appellant was that there was some evidence that the petroleum accumulation at the Afina Discovery extended into the Sankofa Field and that triggered the Minister’s directive of 9 April 2020, to the parties to commence processes towards unitising the production of petroleum at the Afina Discovery and the Sankfoa Field. According to Counsel, the Plaintiff initiated the instant action based on alleged “statutory obligations” while the Minister’s directive was still effective. Counsel argued that the Plaintiff does not have the power to enforce the statutory breaches because it is within the Minister’s power and discretion under Act 919 and L. I. 2359 to seek enforcement of its directive. [28] The Appellant’s counsel also argued that at the time the action was commenced the parties had started the unitisation process as directed by the Minister, but had not been able to agree on the exchange of data and the terms of a confidentiality agreement. He also stated that while the action was pending, and before the court delivered its decision, the Minister suspended the directive per the 9 April 2020 letter, and gave new directives in a letter dated 19 August 2020 towards unitisation of the Afina Discovery and the Sankofa Field. Counsel submitted that the Minister’s later directive showed that he fully intended to exercise his executive powers to continue taking control of the unitisation process, and to compel the parties to unitise on his own terms if the parties were unable to reach an agreement on the terms of unitisation. pg. 15 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment [29] Counsel argued that the error in the decision of the court below becomes very apparent when paragraphs 39 to 48 of Plaintiff’s statement of claim are considered thoroughly. According to Counsel, the decision of the Court below that the Plaintiff has locus standi to sue was wrong because that right, if any, belongs to the Minister and not the Plaintiff. Counsel further argued that the Plaintiff does not have any rights or other interest in the petroleum produced from the Sankofa Field because the unitisation process was not completed at the time the suit was initiated. [30] Counsel also argued that the Plaintiff’s reliefs sought, if granted by the court would usurp the powers of the Minister under Act 919 and L. I. 2359, and “torpedo the unitisation process which the Minister had taken charge of”. Counsel further argued that the High Court’s decision on Section 34 of the Petroleum Act to the effect that it protects “correlative rights” of parties was wrong because according to him the concept of “correlative rights” does not apply under Ghanaian law (whether common law or otherwise), and also the purposive approach to interpretation does not support the position that Section 34 of the Petroleum Act protects “correlative rights”. Based on the above, he prayed the Court to reverse the ruling of the High Court, strike out the Respondent’s pleadings and dismiss the action. Plaintiff/Respondent Submission: [31] Counsel for the Plaintiff/Respondent in the submission filed stated that in his view the Appellant has abused the omnibus ground because the issue as to whether there is a reasonable cause of action is a legal issue and therefore the grounds of appeal ought to have been limited to legal grounds only. In the main however, Counsel argued that the Appellant’s argument that the Court erred in holding that the Plaintiff/Respondent has locus standi is entirely misplaced, because the Plaintiff’s suit is neither a usurpation of the powers of the Minister under Section 34 of the Petroleum Exploration Act, 2018 (Act 919) or an act amounting to an exercise of the powers of the Minister. According to pg. 16 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment Counsel, the argument that only the Minister may take steps pursuant to the directive issued under Section 34 of Act 919 is wrong because the Appellant does not understand the nature of the power exercised by the Minister pursuant to Section 34 of Act 919. [32] Counsel referred to Section 34 of Act 919 and stated that the above provision reveals one relevant factor for the directive of the Minister to unitize and “The said factor is the straddling of the petroleum accumulation”. Consequently, to the extent that there is a valid directive instructing that the two fields, namely the Sankofa Field and the Afina Field to develop and produce the accumulation as one, Plaintiff herein reserves a right in law, that is a legal right to ensure the protection of Plaintiff’s interest in the common reservoir”. Counsel further argued that the Plaintiff’s right emanates from its undisputed interest in the common reservoir from which the Defendants operate their Sankofa field and that is the foundation of the Plaintiff’s pleadings in the statement of claim, particularly paragraphs 10 to 28. [33] Counsel submitted that it is based on the pleadings filed that the Court below found as follows; “The Court thus finds that to the extent that the statutory provisions of Section 34 are designed to achieve the twin purpose of preventing waste in the production of petroleum as well as the protection of correlative rights it cannot be contended in candour that the Plaintiff has no locus standi to institute the present proceedings.” According to learned Counsel, the above confirms that the Appellant’s contention that “Plaintiff’s reliefs (ii) – (iv) amounts to a usurpation of the Minister’s powers is misconceived because the Plaintiff’s legal interest in the common reservoir is clearly based on the pleadings”. Counsel further submitted that the undisputed fact from Plaintiff’s pleading aside the directive of the Minister is simply that Plaintiff has an interest which arises from the straddling of the field and common reservoir in the pg. 17 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment petroleum accumulation exploited by Defendants. In the view of Counsel, the issue of straddling oil field and the existence of a common reservoir is a fact which can only be determined at trial. [34] Counsel further argued that the Appellant’s contention that the Plaintiff/Respondent has no proprietary right either in law or equity therefore the Court was wrong to hold that the Plaintiff has locus standi is patently flawed. This is because according to Counsel, “in order to determine whether Plaintiff has a standing to commence the instant suit, recourse must be made to the pleadings of the party. Consequently, the contention that there is no proof that there is common reservoir, for which reason Plaintiff has no right to commence the suit is conclusively erroneous”. Based on the above submissions and others contained in the submissions filed, Counsel prayed the court to dismiss the appeal as one without merit. vi. The Law & Analysis: [35] It is significant to note that the Appellant did not file a statement of defence before the filing of the application to strike out the pleadings and to dismiss the suit. Therefore, the only pleading on record at the time that the trial court’s jurisdiction was invoked was the statement of claim. In invoking the court’s jurisdiction, the Appellant premised the application on the High Court Civil Procedure Rules, 2004 Order 11 Rule 18(1). The said rule of procedure titled “Striking out Pleadings” provides as follows: “18. (1) The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that (a) it discloses no reasonable cause of action or defence; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass, or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered pg. 18 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment accordingly”. [36] First and foremost, the law is that an application to dismiss either a claim or a defence on the grounds that it does not disclose any reasonable cause of action or defence does not admit any affidavit evidence and the principle has been reinforced in a legion of cases. This court in Tackie v Baroudi (1977) 1 GLR 36, for example, stated the rule that affidavit evidence was inadmissible on an application under Order 25 Rule 4 of LN 140A, which is the re-enactment of Order 11 Rule 18(1)(a). It means only the pleading(s) can be considered in making the determination. Again, this court affirmed the position of the law in Harlley v Ejura Farms (1977) 2 GLR 179 when it stated that; “If by reference only to the pleadings it is not possible to say it discloses no cause of action but an applicant must elaborate excursions into extrinsic material before he can invite the court to so hold, the rule does not apply.”4 [37] Further, it is also important to note that in determining whether a claim should be struck out as disclosing no reasonable cause of action, the test is whether, assuming the Plaintiff proves everything alleged in his claim, there is nevertheless no reasonable chance of success, or to put it another way, no arguable case. To that extent, it is my opinion that the court should exercise its jurisdiction to strike out this ground only in plain and obvious cases and only where the court is satisfied that the case is beyond doubt. See the Canadian case of Lackmanec v. Hoffman and Wall (1982), 1982 CanLII 2585 (SK CA). [38] It is settled in a long line of decisional law that in considering whether pleadings 4 The Court of Appeal propounded further in that case that recourse to Order 25 r 4 of LN 140A, [Order 11 Rule 18(1) of CI 47] ought not to be made in cases involving serious and intricate questions of law. pg. 19 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment disclose a cause of action, the offending pleadings are assumed to be true. The Supreme Court in Jonah v Kulendi & Kulendi [2013-2014] 1 SCGLR 272 affirmed the law in regards to order Order 11 Rule 18(1). The court eloquently stated the law through Anin Yeboah JSC (as he then was) that; “the trial court must assume that the offending pleadings are true. However, the relevant question to consider was whether the allegations of facts pleaded by the Plaintiff, could disclose a reasonable cause of action or was frivolous and vexatious so as to avoid the penalty of the Court striking out the pleadings or resort to the summary process…the trial judge was enjoined to look at the pleadings without resort to other extrinsic evidence outside the pleadings, and therefore, ought to assume that the pleadings sought to be struck out were not only true but on the face of it was obviously unsustainable, clear beyond doubt and unarguable” [39] The apex court further quoted and relied on the old English case of Hubbeck & Sons Ltd v. Wilkinson, Heywood & Clark [1899] 1 QB 86 and the statement of Lindley MR at page 91 that: “The summary procedure is only appropriate to cases which are plain and obvious, so that the master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks”. [Emphasis added] In effect the law is that, in an application such as the one at bar, the Court is required to look at only the pleadings filed, assume that the pleadings are true and also consider whether even if they are proved, the Plaintiff shall not be entitled to the relief(s) sought. [40] Applying the above statement of the law to the instant appeal, having considered the pleading and the application put before the trial court, the question to be asked is whether the allegations of facts pleaded by the Plaintiff, disclosed a reasonable cause of pg. 20 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment action or was frivolous and vexatious and ought to have been struck out and dismissed. Having reviewed the record of appeal and in particular, the pleading, it is my opinion that the trial Judge’s conclusion cannot be faulted. In deciding that the Plaintiff has locus standi, the court reviewed the pleadings and stated at page 338 of the ROA as follows: “The Plaintiff pleads that the Defendants have deliberately undermined the Minister’s directive by resorting to various reasons for which the Minister’s directive has not been complied with. The Plaintiff further pleads that while the Defendants have frustrated the co-ordination of their petroleum activities, the Defendants continue to produce oil from their contract area. The Defendants’ exploration and production activities, as pleaded by the Plaintiff affects the accumulation of petroleum within the Plaintiff’s contract area. These facts are directly pleaded in the Plaintiff’s Statement of Claim”. [Emphasis Mine]. [41] On the strength of the above finding based on the pleading, the court at page 348 of the ROA again stated; “The case before the Court is simply that the exploration and production activities carried out on the Defendants Sankofa Field automatically affects the petroleum accumulation in the Plaintiff’s contract area by depleting it. The Court’s position is that the Plaintiff has locus standi and has a course of action requiring interrogation and determination by the Court.” [42] Writing on the Plaintiff/Respondent’s claim for account, the trial judge again referred to the pleadings and at page 346 of the ROA stated; “The Plaintiff has asserted that as of the time the present proceedings were instituted, the Defendants have been depleting the common petroleum resources and marketing it. Essentially therefore, Plaintiff’s claim for accounts is based on the Plaintiff’s contention that the Defendants are under an obligation to share the profits derived from the production of petroleum, part of which comes from Plaintiff’s land.” pg. 21 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment [43] I am of the opinion that on the pleadings and assuming same to be true, the trial judge’s finding that the Plaintiff has standing to institute the action for the reliefs sought cannot be faulted. It can also not be denied that the pleading disclosed a cause of action because as the court stated at page 345 of the ROA: “It is the Plaintiff, which assumes the burden of proof of these assertions at the appropriate time. The Court takes the view that if the Plaintiff is able to prove that indeed some of the petroleum produced by the 1st Defendant in its Sankofa field come from the Plaintiff’s Afina field, no court of justice will say that the Plaintiff is entitled to no relief at all. The Plaintiff therefore has a major interest in ensuring that the statutory purpose of Section 34 of Act 919 is achieved”. To my mind, the above statements of the learned trial Judge are legally sound and properly dispose of the Appellant’s contention that the pleading disclose no reasonable cause of action. [44] As stated above, apart from the contention that the pleading disclosed no reasonable cause of action, the Appellant also prayed the court to dismiss the suit on grounds of abuse of process. In my opinion, striking out an entire claim on the ground that it is frivolous, vexatious or an abuse of process of the court is based on an entirely different footing or analysis because in that case, instead of considering merely the adequacy of the pleadings to support a reasonable cause of action, it may involve an assessment of the merits of the claim, and to that extent, in my view, evidence other than the pleadings is admissible. The law is stated clearly by Odgers on Pleadings and Practice, 20th Ed. at pp. 153-154 that: "If, in all the circumstances of the case, it is obvious that the claim or defence is devoid of all merit or cannot possibly succeed, an order may be made. But it is a jurisdiction which ought to be very sparingly exercised, and only in very pg. 22 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment exceptional cases. Its exercise would not be justified merely because the story told in the pleadings is highly improbable, and one which it is difficult to believe could be proved." [45] Bullen and Leake’s Precedents of Pleadings, 12th Ed also defines the power to dismiss a suit on the grounds of abuse of process as follows, at pp. 148-149: ''The term 'abuse of the process of the court' is a term of great significance. It connotes that the process of the court must be carried out properly, honestly and in good faith; and it means that the court will not allow its function as a court of law to be misused but will in a proper case, prevent its machinery from being used as a means of vexation or oppression in the process of litigation. It follows that where an abuse of process has taken place, the intervention of the court is by the stay or even dismissal of proceedings, 'although it should not be lightly done, yet it may often be required by the very essence of justice to be done'. The term 'abuse of process' is often used interchangeably with the terms 'frivolous' or 'vexatious' either separately or more usually in conjunction." [46] A careful analysis of the pleading does not show that it is deficient in any respect and it is obvious that the Plaintiff’s claim will not succeed. In my view, sufficient facts to support the cause of action have been pleaded and if the Plaintiff/Respondent is able to prove the assertions, it would be entitled to the reliefs claimed. Also, in my view, the other material filed in support of the application at the lower court does not lead inescapably to the conclusion that the action is totally devoid of merit and is therefore frivolous, vexatious and an abuse of process of the court. [47] Indeed, the arguments by Appellant’s Counsel that the enforcement of the directive of the Minister is discretionary and only available to the Minister, that the Plaintiff/Respondent does not have proprietary rights in the Sankofa Reservoir and also the Plaintiff has no proprietary interest in the petroleum accumulation at Afina Discovery pg. 23 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment (as ownership of the petroleum in the Afina Discovery belongs to the state etcetera) are all matters the trial court would have to determine at the appropriate time as stated by the trial judge and not based on the pleading. These submissions cannot be the basis for the dismissal of the suit based on the arguments advanced. [48] I agree with Counsel for the Plaintiff/Respondent that the ruling was never against the weight of evidence as contended by the Appellant. Indeed, all the arguments made under the omnibus ground were a rehash of the arguments advanced under the grounds this court struck out. It is evident, based on the ROA, that the reasons and conclusions of the court below are based on the law and cannot be faulted by this court. Consequently, the ruling of the trial judge dated September 3, 2020 is affirmed. In the end, the appeal is dismissed in its entirety as one without merit. Costs of GH¢20,000.00 awarded in favour of Plaintiff/Respondent/Respondent. SGD ………………………………………. KWEKU T. ACKAAH-BOAFO, JA. (JUSTICE OF THE COURT OF APPEAL) SGD I AGREE ……………………………………… HENRY KWOFIE, J. A (JUSTICE OF THE COURT OF APPEAL) SGD I ALSO AGREE ………………………………………. J. BARTELS-KODWO, J. A (JUSTICE OF THE COURT OF APPEAL COUNSEL: DAVID ADU-TUTU JNR. WITH JENNIFER TWENEBOAH-KODUAH FOR 2ND DEFENDANT/APPLICANT/APPELLANT NOELA GBIREH PORVI FOR PLAINTIFF/RESPONDENT/RESPONDENT LED BY pg. 24 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment NANA BOAKYE MENSAH BONSU pg. 25 Springfield v. ENI Ghana & VITOL Upstream – Vitol Appeal - Judgment