Cotecna International Limited Vs Ivory Merchant Bank Limited (2006)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

Pagade Agricultural Processing Ind. Limited and Pagade Holding Limited, which I refer to as the Pagades, bought a crumb rubber processing machinery from Ivory Merchant Bank Limited for the purpose of equipping their crumb rubber manufacturing plant in Delta State. The Pagades said that the machinery was sold by Ivory to them upon material representations made by Ivory on the quality, merchantability and fitness. The Pagades said that the representations turned out to be false and they brought an action for breach of contract against Ivory at the High Court of Lagos State.

Ivory in its defence denied the existence of a contract. In the alternative, Ivory pleaded that the representations were innocently made based on the negligent or fraudulent misrepresentations made by Cotecna International Limited to Ivory. Ivory commenced Third Party Proceedings against Cotecna by the issuance of a Third Party Notice seeking contribution or indemnity from Cotecna in respect of the Pagades claim.

Cotecna filed a defence and also raised a preliminary objection on the jurisdiction of the High Court of Lagos State to hear the matter. Cotecna prayed the court to strike out the Third Party Proceedings on the ground of lack of jurisdiction by the court to hear the proceedings.

The High Court heard the preliminary objection and dismissed it. Dissatisfied Cotecna appealed to the Court of Appeal. That court dismissed the appeal. Cotecna has appealed to this court. Briefs were filed and duly exchanged. The appellant, Cotecna, formulated two issues for determination:

“1. Whether the Court of Appeal was right when that court held that the High Court of Lagos State was right to have assumed jurisdiction over the subject matter of the Third Party Notice, the proceedings on which were under the Pre-shipment Inspection of Imports Act.

2. Whether the judgment of the Court of Appeal was a nullity having been delivered a month earlier than the adjourned date for its delivery without notice to the Appellant and the other parties.”

Ivory, as 1st respondent/cross-appellant, formulated one issue for determination:

“Whether the Court of Appeal was right in confirming the decision of the Lagos High Court that it had jurisdiction to hear the 3rd party notice against the appellant, being an ancillary claim which travels with the principal claim is cognizable in the State High Court.”

The Pagades, as 2nd and 3rd respondents, formulated two issues for determination:

“(i) Whether the High Court of Lagos State had jurisdiction over the Third Party Proceedings brought in the case.

(ii) Whether the judgment of the Court of Appeal was a nullity having been delivered on a date earlier than the adjourned date for its delivery without notice to the appellant. ”

Learned counsel for the appellant, Mr. Uzoma Azikiwe, submitted on issue No.1 that the Court of Appeal came to correct interpretation of section 9(2) of the Pre-shipment Inspection of Imports Act, 1985 and the only decision available to that court was to hold that the High Court of Lagos State lacked the jurisdiction to adjudicate on the subject matter of the Third Party Proceedings. The decision reached by the Court of Appeal amounts to judicial amendment of statutory provisions, learned counsel submitted. He contended that under the Nigerian legal system and the Constitution, the courts have the jurisdiction or power circumscribed by provisions of the Constitution and statutes to abridge, constrict or even oust the jurisdiction of the court. He cited Attorney-General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552 at 567.

Counsel argued that Nigerian court exists to expound and not to expand their jurisdiction outside the limits prescribed by statutes. He cited Seaview Investments Limited v. Munis (1991) 6 NWLR (Pt.195) 67 and Adeniyi v. Oroja (1992) 4 NWLR (Pt.235) 322.

On the issue of jurisdiction over a principal claim, learned counsel submitted that the case of Tukur v. Government of Gongola State (1988) 1 NWLR (Pt.68) 39 cited by the Court of Appeal is so fundamentally different from the case before the court, that it is no authority for conferring jurisdiction on the High Court of Lagos State. Counsel took time to bring out the difference between the case of Tukur and this appeal. Counsel referred to African Continental Bank Ltd. v. Wali Jallo (1975) 5 SC. 89 at 100; Union Bank of Nigeria Ltd. v. Alhaji Bisi Edionseri (1988) 2 NWL(Pt.74) 93 at 103 and Central Bank of Nigeria v. Manexport S. A. (1987) 1 NWLR (Pt. 47) 86 at 96.