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Ports And Cargo Handlings Services Company Limited & Ors. V. Migfo Nigeria Limited & Anor (2012) LLJR-SC

Ports And Cargo Handlings Services Company Limited & Ors. V. Migfo Nigeria Limited & Anor (2012)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is an appeal against the judgment of the Court of Appeal Lagos Division delivered on 17th December, 2008. By the Judgment, the Court below affirmed the decision of the Federal High Court wherein all the questions in the Plaintiffs'(now the Respondents) Originating Summons were resolved against the Defendants (now Appellants). Dissatisfied the Appellants further appealed to this Court vide their Notice of Appeal filed on 13th December 2008, which was amended containing 23 Grounds of Appeal out of which the following 6 issues were distilled:

(i) Considering the clear provisions of Section 251(1)(g) of the 1999 Constitution on which the trial High court relied upon to assume jurisdiction in this matter, coupled with the claims submitted to the said trial High Court by the Plaintiffs, as well as binding decisions of both this court and the lower court on the Federal High court jurisdiction in similar circumstances, whether or not the lower court was not in grave error to have held as it did that the Federal High court rightly assumed jurisdiction in this matter Grounds 1, 2, 3, 4, 5, 15, 16 and 17.

(ii) whether or not the lower court was not wrong in its affirming Plaintiffs/Respondents’ reliefs 10, 11 and 12 under the cover of section 251(1)(e) of the 1999 constitution and relief 13 under the fact that Appellants are limited liability companies over which the Federal High court has jurisdiction – Ground 22.

(iii) Having regard to the claims of the plaintiffs, the affidavit and documentary evidence submitted by parties before the trial High Court, as well as the binding decisions of the Supreme Court and even that of the court of Appeal to the contrary, whether the lower court was not in serious error in holding that the Respondents, suit was properly initiated by originating summons – Grounds 7, 10, 11, 19, 21 and 23.

(iv) Whether or not the lower court did not fall into a serious error by hording that the non-joinder of both the Nigeria ports Authority (NPA) and the Bureau of public Enterprises (BPE) by the Plaintiffs is not fatal to the plaintiffs, case, as well as the jurisdiction of the trial High court – Grounds 6 & 18.

(v) Considering the various and diverse reliefs granted by the trial High court vis-a-vis the jurisdiction of the said court, the provisions of CAMA, as well as the Memorandum and Articles of Association of the Appellants, whether or not the lower court did not fall into various error in affirming the said judgment and the reliefs – Grounds 8, 9, 12, 13 and 14.

(vi) Was the lower court not in gross error in its failure to consider and pronounce on several fundamental and pertinent issues placed before it by the Appellants – Ground 2.

It is instructive to note that in this appeal the Respondents filed and relied on their Notice of Preliminary objection on 04/10/2011. It is that both the grounds of appeal numbered 3, 6, 7, 10 and 21 contained in the Appellants’/Respondents, Amended Notice of Appeal dated 04/02/2010 and the issue raised by the Appellants/Respondents in their brief of arguments dated 4/2/2010 to be arising for determination from the said grounds are incompetent and as such the grounds should be struck out and the issues discountenanced or struck out. The grounds upon which the said preliminary objection is based are as follows:

“(1) The Appellants/Respondents describe grounds of appeal numbered 3, 6, 7, 10 and 21 in the said Amended Notice of Appeal dated 4/2/10 as misdirection by the Court of Appeal, but the Appellants/Respondents did not specify the nature of the alleged misdirection complained of, with full particulars of the alleged misdirection and did not quote or reproduce with their full particulars as they appear in the record of appeal, the passage where the misdirection was alleged to have occurred.

(2) The incompetence of the aforesaid grounds of appeal can be taken up at any stage of the proceedings even when judgment is being written and the grounds will not become valid because they were not objected to.

(3) Since issues for determination in this appeal cannot be formulated from invalid or incompetent grounds of appeal, the issues formulated by the Appellants from the said incompetent and invalid grounds of appeal as arising for determination are also incompetent and should be struck out or discountenanced just like the incompetent grounds of appeal.

(4) Where grounds of appeal are struck out, issues for determination formulated therefrom and arguments canvassed in support thereof become irrelevant and would also be struck out by the court because they no longer have grounds to stand on.

However, treading carefully with cautious optimism, but without prejudice to their objection, above, the Respondents proposed the following 6 issues for determination:

“(1) Considering the clear provisions of section 251(1)(g) of 1999 Constitution on which the trial High Court relied to assume jurisdiction in this matter, coupled with the claims submitted to the said trial High Court by the Respondents, as well as binding decisions of both this court and the lower court on the Federal High Court’s jurisdiction in similar circumstances, whether or not the lower court was not in grave error to have held as it did that the Federal High Court rightly assumed jurisdiction in this matter (Grounds 1, 3, 4, 5, 15, 16 and 17).

(2) Whether the Respondents properly made out, (sic) were entitled to reliefs 10, 11, 12 and 13 and the lower Court was right in affirming their grant by the trial Court (Ground 22).

(3) Whether this suit should have been brought by a writ of summons and the lower court was wrong in holding that it was property initiated by originating summons (Grounds 7, 10, 11, 19, 21 and 23).

(4) Whether the lower court was wrong in not holding that the Bureau of Public Enterprises, and Nigerian Ports Authority were proper parties which should have been joined to this suit and that the trial Court lacked jurisdiction to entertain and determine it (Grounds 6 and 18).

(5) Considering the various and diverse reliefs granted by the trial High Court vis-‘E0-vis the jurisdiction of the said court, the provisions of CAMA, as well as the Memorandum and Articles of Association of the 1st Appellant, whether the lower court did fall into serious error in affirming the said judgment and the reliefs (Grounds 8, 9, 12, 13 and 14).

(6) Whether the lower Court failed to consider and pronounce on several issues placed before it by the Appellants and if so, such failure occasioned a miscarriage of justice (Ground 20).”

On 13th March, 2012 when this appeal was heard learned senior counsel on both sides of the divide duly adopted and relied on their respective briefs of argument. While the learned senior counsel for the Appellants urged the court to allow the appeal, the learned senior counsel for the Respondents urged that the preliminary objection raised by the Respondents be upheld and in the alternative appeal should be considered on its merit, and be dismissed for lacking in merit and be accordingly dismissed,

The said Respondents’ Notice of Preliminary objection dated 2/10/2011 was filed on 4/10/2011 but served on the Appellants on 13/10/2011. The Appellants’ Reply brief filed on 16/11/2010 was in response to the new issues raised in the Respondents’ Brief and reaction to the Respondents Notice of Preliminary objection under reference.

In their Preliminary Objection the Respondents argued that the – grounds of appeal contained- in- the Appellants’ Amended Notice of Appeal and the issues raised in the Appellants’ brief of argument in support of these grounds are incompetent.

The Appellants have submitted the following sole issue for the determination of the objection raised by the Respondents:

“Whether it is the current position of the law that once a ground of appeal alleges a misdirection or error in law, the Appellant must reproduce the passage of the judgment where the misdirection or error occurred and must also give full and substantial particulars of the alleged error or misdirection.”

The objection is challenging the competence of the Appellants’ grounds 3, 6, 7, 10 and 21 contained in their amended Notice of Appeal. By extension the Respondents further contended that issues 1, 3 and 4 in the Appellants, Brief formulated from those grounds are incompetent. The Respondents cited and relied on the cases of of FALEYE V. OTAPO (1987) 4 NWLR (Pt. 64) 186; OKWUAGBALA & ors. v. IKWUEME & ORS 19 NWLR (Pt.1226) 54; and BANK OF THE NORTH LTD. V. BELLO (2000) 7 NWLR (PT.664) 244 at 253.

The Respondents’ objection that grounds 3, 6, 7 and 21 are incompetent simply because the passage of the judgment was not quoted is misconceived. This submission do not represent the current and correct position of the law. The position of the law has changed on the point canvassed by the Respondents in their objection. This has been noted and strongly held by this Court in the case of B.A.S.F. LTD VS. FAITH ENT. LTD. (2010) 4 NWLR (PT.1183) 104 at 134 thus:

“…it is no longer the law that once a ground of appeal alleges error in law and/or misdirection the passage of the judgment concerning same must be quoted.”

Quoting of the passage can be dispensed with once there is evidence stated in the particulars which disclose validity of the complaint, or from where the complaint can be discerned or inferred. See ILORI V. TELLA (2006) 18 NWLR (PT.1011) 267 at 285, and FUNDUK ENGINEERING LTD. V. MC ARTHUR (1995) 4 NWLR (PT.392) 640. The whole exercise of a ground of appeal is to put the Respondents on notice so that they can appreciate the full intention of the Appellants without any ambiguity. I shall illustrate this point by reproducing just ground 21 which is very similar with grounds 3, 6, 7 and 10 being objected to by the Respondents. Ground 21 reads (with the particulars) as follows:

“The lower court misdirected itself in law and also came to a perverse decision when it construed page 37 of the Bid document (Exhibit A) to give judgment for the Respondents and went further to hold that the Appellants did not deny the existence of Exhibit A but only contested that 2nd Appellants’ Consultants “made a mistake by collaborating with the Plaintiffs for the Bid.”

PARTICULARS OF MISDIRECTION

“iv – Appellants contested the genuiness of Exhibit A by stating that the consultants were under a mistaken belief that Appellants were collaborating with the plaintiffs.

v. Exhibit A is merely a Bid document.

vi. It was also the case of the Appellants that they notified the BPE of the mistake in Exhibit ‘A’ leading to the BPE’s letters of 4th June, 2005 authorising only 2nd Appellant to bid for the concession of Terminal ‘C’ in the name of SIFAX NIGERIA LTD. and not of ports and Terminal operations Nigeria Ltd.”

This requires careful reading of the appellants’ ground and particulars quoted above. The whole essence of the Appellants’ complaint is clear and unambiguous. The grounds objected to by the Respondents are not incompetent simply because the passage of the judgment was not quoted.

In the light of the foregoing, the Respondents preliminary objection is overruled and same is dismissed.

I shall now comment brief on the Briefs of argument of the respective parties before I proceed to consider same. I have observed that the Respondents have complained and criticized the Appellants’ brief as being too voluminous and wildly, made up of 115 pages although the rules of this Court do not limit a party to a number of pages in a brief. This is a case of pot calling kettle black. I am as well to criticize the Respondents, brief as unnecessarily voluminous containing repetitive arguments of the issues settled, in the tiniest prints I have ever seen in a brief. A brief of argument has connotation of really concise and succinct expression of the appellant’s complaint and the Respondents reaction on the issue or issues presented to court for consideration. Clarity, simplicity and directness of expression are the hallmarks of a good brief. My candid opinion of the two briefs of argument, with due respect, fall short of the fundamental requirements of a brief as the word connotes.

The fulcrum of the appeal is the perennially contentious issue of the jurisdiction of the Federal High Court. The subject matter has been tritely decided upon by this Court. It is needless presenting a treatise on it. Therefore, it is my respectful opinion that the very first issue as in the Appellants’ Brief of argument suffices and can adequately determine this appeal. For, if the trial court lacks jurisdiction to entertain the matter it would have laboured in vain and under delusion to grant the Respondents the various reliefs they had claimed or sought for. The Appellants’ issue that is apt and relevant to the determination of the appeal is their first issue duly adopted by the Respondents. It is as follows:-

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“Considering the clear provision of Section 251 (1) (g) of the 1999 constitution on which the trial High Court relied upon to assume jurisdiction in this matter, coupled with the claims submitted to the said trial High Court by the plaintiffs, as well as building decisions of both this Court and the lower court on the Federal High court jurisdiction in similar circumstances, whether or not the lower court was not in grave error to have held as it did that the Federal High court rightly assumed jurisdiction in this matter – Grounds 1, 2, 3, 4, 5, 15, 16 and 17”

The main complaint of the appellants is that the Court below wrongly affirmed the decision of the trial Federal High Court which assumed jurisdiction in this matter. Learned Senior counsel for the Appellants have placed reliance on quite a number of cases on this point viz: MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 AT 597. COTECNA INTERNATIONAL LTD. V. I.M.B. LTD. 2005 9 NWLR (Pt.985) 279 at 291.

It is argued that it is the Plaintiffs’ claim that vests jurisdiction on the Court. Reliance was heavily placed on the case of ADEYEMI v. OPEYORI (1976) 9 – 10 SC 31 and paragraphs 1, 2, 13, and 9 of the Respondents’ claims.

It is further submitted that for the questions for determination on pp 6 to 8 of the volume 1 of the Record, the Respondents’ claims clearly relate to intentions, declarations, understandings, agreements, commitments. Quoting paragraphs 1, 2, 3, 4, 6, 7 and 8 of the reliefs and issues contained in the Respondents’ originating summons, it is contended that there exists a purported contractual relationship between the Appellants and the Respondents, the specific performance of which the Respondents had wanted the court to decree. Reliance was also placed on paragraphs 5, 6, 7, 9, 11, 12, 13, 14, 18, 19, 20, 21, and 22 of the affidavit in support of the originating summons. It is submitted that the substraturn of these depositions is that there has been an existing contract between the Respondents and the 2nd Appellant in which the Respondents have performed their part but the 2nd Appellant with the support, connivance and assistance of the 2nd, 3rd, and 4th Appellants herein have reneged on the terms of the contract. In other words, that by the Respondents’ showing and as expressly stated in the supporting affidavit to the Originating Summons, the Appellants have been alleged to be reaping quite surreptitiously from the proceeds of the contract whose terms and conditions they have neglected to comply with. Learned Senior Counsel then reproduced Section 251 (1) (g) of the Constitution and found support in the case of ONUORA v. KADUNA REFINERY and PETROCHEMICAL CO. (2005) 6 NWLR (Pt.921) 393 in which the provision of S. 239 (1) of the 1979 Constitution (as amended) considered in that case, as in pari materia with section 251(1) (g) of the 1999 Constitution vests exclusive jurisdiction on the Federal High Court on matters pertaining to the administration or the management and control of the Federal Government or any of its agencies. It is submitted however that this subsection has not conferred jurisdiction on the court where the plaintiff’s claim is founded on contract. Other decisions of this Court relied upon on this point are CHEVRON NIGERIA LIMITED V. LONESTAR DRILLING (NIGERIA LIMITED (2007) 7 SC. (Pt.II) 27: (2007) 15 NWLR (Pt 1059) 168; TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 517. OMOSOWAN V. CHIDOZIE (1998) 9 NWLR (Pt.556) 447 and HAGEMEYER (NIG.) LTD. V. RORO TERMINAL LTD. (1988) 3 NSC 391.

It is finally urged that, in the light of numerous decisions of this court and on the potency of the doctrine of stare decisis, this court cannot overrule itself on this point. Premised on this foregoing submissions, the learned senior counsel has urged the Court to resolve this issue in favour of the Appellants.

The learned senior counsel for the Respondents, on the other hand has submitted that the jurisdiction of the Federal High court to the exclusion of the state High court is conferred by both section 251 of the 1999 constitution and by section 7 of the Federal High court Act. More particularly relevant to this case section 251 (1)(g) of the said constitution was the provisions the court below applied in affirming the jurisdiction assumed by the Federal High court to entertain and determine the suit. The subsection was reproduced. It is urged on this court that since the subsection is a constitutional provision, the approach of this Court in interpreting and applying it should be liberal and it is the duty of the Court to construe same so as not to defeat the obvious ends the Constitution was designed to serve.

It is submitted that claim of the respondents in the suit relates to the management and operation of Terminal ‘C’, Tin Can Island Port, Apapa. In other words, that the disputes on the joint venture agreement between the 2nd Appellants and the Respondents to their joint bid for the concession and subsequent operation and management thereof are all ancillary to the said port and arising therefrom. That the Appellants by their own showing at pp 23 -24 of their brief in the lower court (pp 740 741 of the record) and paragraph 9.2 of their brief herein, defined the word “maritime” (synonym for admiralty) as:

(1) connected with or situated near the sea;

(2) of or relating to sea or navigation or commerce

Therefore they have conceded that a Federal Port being connected with or situated near the sea relates to and comes within the admiralty jurisdiction of the Federal High Court and the lower court rightly affirmed the holding of the trial court in that respect. Reliance was placed on the case of OWNERS OF BOSCO LINER 3 v. ADENIJI (1993) 2 NWLR (Pt.274) 195 At 201 LEKWOT V. JUDICIAL TRIBUNAL (1997) 8 NWLR (Pt 515) 22 at 35.

It is argued, that since the reliefs sought by the Respondents determine the jurisdiction of the court, the court below rightly affirmed the decision of the trial court that the reliefs sought and the questions for determination posed by the Respondents come readily within the jurisdiction of the Federal High Court. In other words, that the court below rightly held that the disputes relates to the management and operation of Terminal ‘C’ Tin Can Island Port. It is contended that section 1 (1) and 1(i) (g) of the Admiralty Jurisdiction Act which the Appellants used to support their arguments in paragraphs 517 to 518 of their brief of argument, are just a part of the Admiralty Jurisdiction vested in the Federal High Court by Section 251 (1) (g) of the 1999 Constitution, the latter of which is also in pari materia with section 7 (1) (g) of the Federal High Court Act. It is contended however, that it is not correct as argued by the Appellants that for the Federal High Court to exercise jurisdiction, matters arising from a Federal Port must relate to claims for loss or damage to goods accruing between the offloading of goods across space from a ship or any aircraft and their delivery of consignee’s premises or any aircraft and their delivering of consignee’s premises or during storage or transportation because by using the word “including the,” Legislature intends that there should be mere enlargements of matters a rising with in any Federal port.

The learned senior counsel for the Respondents further submits that the jurisdiction of the Federal High Court, under section 251 (1) (e) of the 1999 Constitution is so exclusive and wide that once the claims or questions submitted to the Federal High Court for determination in a suit relate to or connect with a Federal Port, notwithstanding tire nature of the claim in the action or whether it is an agreement in relation to or ancillary to a Federal Port, the Federal High Court has and can assume jurisdiction to determine the suit, because the intentions and arms of the law makers and framers of the said Section 251 (1) (g) were to take away from the jurisdiction of the State High Court and confer exclusively on the Federal High Court, jurisdiction in actions relating to or connected with a Federal property, which the said port is. Reliance was placed on the case of NEPA V. EDEGBERO (2002) 18 NWLR (Pt.798) 1 at 95 – 97.

The learned senior counsel also submits that the heavy weather the Appellants are making out of cases on disputes founded on simple contract in relation to Respondents’ claims and stare decisis is completely wrong and done out of con. It is submitted that the Appellants in their brief misinterpreted and misapplied the purport and the decision in ONUORAH V. KADUNA REFINERY case (supra) relied on by them; in that the facts and issues in that case differ from those of the instant case. It is argued that Judgment in Onuorah case filed in 1996 was delivered before the 1999 Constitution commenced. That the case has to do with specific performance and damages for breach of a simple contract in relation to the purchase of empty tins unlike the instant case that has to do with civil claims and issues arising from or relating to or ancillary to a Federal Ports, the management and operating of a Federal port as included in the admiralty jurisdiction of the Federal High Court by Section 251 (1) (g) of the 1999 Constitution and Section 7 (1) and Section 7 (3) of the Federal High Court Act.

It is further submitted that the claims in the ONUORAH and GAFAR V. GOVERNMENT OF KWARA STATE (2007) 4 NWLR (Pt.1024) 37 cases neither related to nor a rose from nor were ancillary to nor were raised on a Federal port, nor were they decided on section 251 (1) (e) of the 1999 Constitution and Sections 7(I) (g) and 7 (3) of the Federal High Court Act. That these cases are clearly distinguishable from the instant case.

Furthermore, the Respondents have contended that contrary to the Appellants’ submissions in their Brief in paragraphs 5.26 – 5.29 the decision of the court below cannot be faulted. This is because on their proper construction, the reliefs numbered, 3, 4, 5, 10, 11, 13, 14 and 15 sought by the Respondents and the questions for determination numbered 3, 4, 5, 6, 7, 9, 10 and 11 raised by the Respondents in the originating summons numbered 3, 4, 5, 6, 7, 9, 10 and 11 raised by the Respondents in their Originating Summons, also fall squarely within the jurisdiction of the Federal High Court. It is contended that these are causes or matters arising from the operation of the companies and Allied Matters Act 2004 (CAMA) regulating the operation of companies incorporated under the Act, which the 1st Appellant is.

I shall mention the fact that the Appellants in their Reply Brief, have reacted to some of the new issues or points raised by the Respondents in their Brief. These points shall be considered anon, in this Judgment.

Now to the issue. If I may recapitulate, in the course of the proceedings at the trial Federal High court, the Appellants raised a preliminary objection to the jurisdiction of that court to entertain the Respondents’ suit. It is clear that the fulcrum of the objection as can be observed from the body of Notice is that the subject matter or issues raised in the Respondents, originating summons is or are outside the jurisdiction of the trial court both statutorily and constitutionally. The trial court though held, however that in determining jurisdiction courts are enjoined to look into plaintiffs’ claim before the court, but held the strongest view that the plaintiffs’ claim relates to the management and operation of Terminal ‘C’ Tin Can Island Port, and that the claim falls within the provision of Section 251 (1) (g) of the 1999 Constitution. For ease of reference, the Section is hereby reproduced:

“Any admiralty jurisdiction including shipping and navigation on the River Niger or River Benue and their affluences and on such other inland waterway as may be designated by any enactment to be an international waterway, at Federal ports (including the constitution and powers of the ports authorities for Federal ports and carriage by sea.”

It is difficult to appreciate the basis for the decision of the trial Judge above that the claims of the Respondents fall within the provision of section 251 (1) (g) of the Constitution set out above. While considering this fundamental issue of jurisdiction the lower court agreed with the trial court and went further to hold thus:-

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“Any question on admiralty jurisdiction calls for reference to the detailed stipulation of what is admiralty in the Admiralty Jurisdiction Act 1991. Equally the subject matter call Federal ports’ is clear. The phrase; ‘including the constitution and power of the ports authorities for Federal ports’ is for emphasis on what is also included. Looking at the reliefs sought ………the question arising is whether it is related or auxiliary to federal ports and whether the cause of complaint is a mere contract. First of all there is no claim for breach of contract. The Respondents sought declarative reliefs. The nature of a declarative relief is one which calls on the court to make a confirmation of what is already the state of the affairs or what is agreed or likely to be in connection with the subject matter of the declaration… Furthermore, it is trite that to sue for specific performance is to assume that the contract is still subsisting and to insist that it should be performed.”

Earlier, this Court that had held that there was no claim for specific performance went further to hold at page 997 of the Records that:

“Relief 9 is on specific performance of the contents of Exhibits ‘A’ and ‘B’ which calls for finding of the existence of an agreement and then order performance. This relief the High Court can entertain.”

Clearly from the judgment of the lower court quoted above there has been contradiction leading to the misapprehension of the Appeal before it which is related to the issue of jurisdiction of the trial court vis-a-vis the plaintiffs’ claim. If the Respondents’ claim is not a “mere claim of offer and acceptance” and “the term transcended more contractual agreement” as held by the lower court, then what different label has the Respondents given to their claim that does not make it a simple ‘contract’ or ‘agreement.’ Yet for the lower court to hold that what the Respondents sought was a declarative relief in respect of a purported or assumed agreement between them and the Appellants is to demonstrate a complete misapprehension of the nature of the claim of the Respondents. For there cannot be a question of specific performance of a contract without the existence of a contract or agreement. Specific performance cannot be made abstractly in various situations.

I agree with the learned counsel for the Appellants in their brief that the lower court committed a fundamental error in respect of admiralty jurisdiction it referred to. On this the court erroneously placed reliance and interpretation of the phrase “including the constitution and powers of the port authorities for Federal Ports” without juxtaposing the said phrase with the reliefs sought by the Respondents. The court actually imported into what is not intended in Section 251 (1) (g) of the Constitution of 1999. The Respondents were not challenging the constitution and powers of the ports authorities for Federal ports. The claim is not ‘auxiliary” to the Respondents’ reliefs. The lower court has gone outside the Plaintiffs/Respondents’ claim to apply the said phrase.

It is trite law that it is the plaintiffs’ claim that determines and vests jurisdiction in the court. The Respondents’ claims as can be seen on pages 3 to 6 of volume 1 of the Record, inter alia, are:

“1. A declaration that the intentions declarations, understandings, joint venture agreement and irrevocable commitments expressed by the Plaintiffs and the 2nd Defendant and contained in the Technical Proposal/Bid documents dated June, 2005 and their executed ‘Memorandum of Understanding dated 27th July, 2005′ submitted to the Bureau of Public Enterprises in respect of their bidding for the management and operation of Terminal C, Tin Can Island Port, Apapa, Lagos in the name of the 2nd Defendant, are binding on the Plaintiffs and the 2nd Defendant.

  1. A declaration that by virtue of the intentions, declarations, understanding, joint venture agreement and irrevocable commitments expressed by the plaintiffs and the 2nd Defendant and contained in the Technical Proposal/Bid documents dated June, 2005 and their executed Memorandum of Understanding dated 27th July, 2005 submitted to the Bureau of Public Enterprises in the name of the 2nd Defendant in respect of their bidding for the management and operation of Terminal C, Tin Can Island Port, Apapa, Lagos, the Plaintiffs and the 2nd Defendant are joint bidders for and joint-venture partners in respect of the management/operation of, the said Terminal C, Tin Can Island Port, Apapa Lagos.
  2. A declaration that pursuant to the intention, declarations, understanding, joint venture agreement and irrevocable commitments expressed by the Plaintiffs and the 2nd Defendant and contained in the Technical Proposal/Bid documents dated June, 2005 and their executed Memorandum of Understanding dated 27th July, 2005 submitted to the Bureau of Public Enterprises in respect of their bidding for the management and operation of Terminal C, Tin Can Island Port, Apapa, Lagos, the 2nd Defendant, the 1st plaintiff and the 2nd Plaintiff are entitled to hold all the shares of the 1st Defendant in the ratio of 40%, 30% and 30% respectively and be entered in its Register of Members as holders of such shares.
  3. A declaration that Plaintiffs are entitled to participate jointly with the 2nd Defendant in the business and meetings of the 1st Defendant and the Plaintiffs’ chief executive officers are entitled to be appointed co-directors of the 1st Defendant and co-operate the 1st Defendant’s business as the manager/operator of Terminal C, Tin Can Island Port, Apapa, Lagos.
  4. An order directing the 2nd Defendant to specifically perform the intentions, understanding, joint venture agreement and irrevocable commitments expressed by the Plaintiffs and the 2nd Defendant and contained in the said Technical proposal/Bid documents dated June, 2005 and their executed Memorandum of understanding dated 27th July, 2005 on the shareholding and management structures of the joint venture as relating to the 1st Defendant and its business as manager/operator of the said port. ”

As for the questions raised for determination, particularly questions 1, 2, 3, 4, 6, 7 and 8 on pages 6 to 8 of volume 1 of the Records set out under the Respondents’ claims relate to intentions, declarations, understandings, agreements, commitments, etc. These are as follows:-

“1. Whether having expressed the intentions, declarations, understanding, joint venture agreement and irrevocable commitments contained, in, the Technical proposal/Bid agreements dated June, 2005 submitted to the Bureau of Public Enterprises by the Plaintiffs and the 2nd Defendant in the name of the 2nd Defendant in respect of their bidding for the management and operation of Terminal C Tin Can Island port, Apapa, Lagos, the plaintiffs and the 2nd Defendant are not bound by the said declarations, understanding, joint venture agreements and irrevocable commitments at law and in equity

  1. Whether on a proper interpretation of the intentions declarations understanding, joint venture agreement and irrevocable commitments reached and contained in the aforesaid Technical Proposal/Bid documents and Memorandum of Understanding submitted to the Bureau of Public Enterprises by the plaintiffs and the 2nd Defendant in the name of the 2nd Defendant, the Plaintiffs and the 2nd Defendant are joint-bidders and joint venture partners for the Terminal C, Tin Can Island Port, Apapa, Lagos and in its subsequent- management/Operation
  2. Whether pursuant to the intentions, declarations, understanding, joint venture agreement and irrevocable commitments reached and contained in the aforesaid Technical Proposal/Bid documents and Memorandum of Understanding, the 2nd Defendant, the 1st plaintiff and the 2nd Plaintiff are entitled to hold all the shares of the 1st Defendant in the ratio of 40%, 30% and 30% respectively and be Entered in its Register of Members as holders of such shares
  3. Whether the resolutions to allot all the shares in the 1st Defendant in the ratio of 70% to 30% respectively to, and appoint the 2nd and 3rd Defendants as the only directors of the 1st Defendant, are contrary to the aforesaid intentions declarations, understanding, joint venture agreement and irrevocable commitments expressed by the Plaintiffs and the 2nd Defendant and contained in the aforesaid Technical Proposal/Bid documents dated June, 2005 and their executed Memorandum of Understanding dated 27th July, 2005 in respect of the bid in the name of the 2nd

Defendant for and subsequent management of the aforesaid part

  1. Whether in equity and on a proper construction of the intentions, declarations, understanding, joint venture agreement and irrevocable commitments expressed in the Technical Proposal/Bid documents and the Memorandum of understanding submitted to the Bureau of public Enterprises in the name of the 2nd Defendant, the 2nd and 3rd Defendants as the current shareholders of the 1st Defendant, are not holding 60% of the shares in the 1st Defendant in implied or constructive trust for the plaintiffs in the proportion of 30% thereof for each plaintiff
  2. Whether in equity and on a proper construction of the intentions, declarations, understanding, joint venture agreement and irrevocable commitments expressed in the Technical proposal/Bid documents and Memorandum of understanding submitted to the Bureau of public of Enterprises in the name of the 2nd Defendant, the 2nd Defendant acted for itself alone or for itself and on behalf and as an implied or constructive trustee of the plaintiff in the said bid
  3. Whether having regard to the part performance of the aforesaid intentions, joint venture agreement, commitment and understanding by the Plaintiffs, the 2nd Defendant should not be compelled to fully perform the joint venture agreement and irrevocable commitments and understanding it entered into with the Plaintiffs”

Clearly, from the foregoing reliefs and questions contained in the Originating Summons, the fulcrum of the Respondents’ case is that there exists a contractual relationship between them and the 2nd Defendants/Appellant, the specific performance of which the Respondents want the court to decree. Paragraphs 5, 6,7, 9, 11, 12, 13, 14, 18, 19, 20, 21 and 22 of the affidavit in support of the Originating Summons, as can be seen on pages 9 – 14 of the Records it was deposed to on behalf of the Respondents as follows:

“5. For the specific purposes of bidding for, and eventual management of the port being concessioned by the Federal Government of Nigeria through the Bureau of Public Enterprises (hereafter called “BPE”) and inter alia feeding their bonded terminals with cargo; recognizing the technical, financial and human relationship with the Plaintiffs which were previously prequalified by BPE to bid for the management of the port..

  1. Consequently, the Plaintiffs and the 2nd Defendant agreed to become joint venture partners, pool their financial and business resources, managerial and tested key staff and technical capabilities together in order to win the bid for the said port and its subsequent management, outflank their competitors and better achieve greater efficiency and effectiveness in the management of the port.
  2. The wishes, intentions, understanding, irrevocable commitments of the 2nd Defendant and the plaintiffs and the terms of their agreed collaboration for bidding for the management/operation of the port and also for their subsequent management/operation of the port, which were initially oral but subsequently substantially embodied in the Technical Proposal/bid documents dated June, 2005 and the Memorandum of understanding dated 27/705 submitted to BPE are attached hereto and marked “A” (which also contains all the relevant pre-bid and post-bid documents) and “B” respectively and materially include…
  3. In line with the above intentions, understanding, agreement and irrevocable commitment and with a view to subsequently co-managing the said port with the 2nd Defendant, the plaintiffs immensely contributed to the success of the bid,….
  4. At very critical times when money was needed for the success of the bid, the 4th Defendant sent his hand-written letters dated 17/5/05 and 8/8/05 to me and I accordingly obliged him. Attached hereto and marked “E” and “F-F1” respectively are copies of the said letters and the 1st plaintiffs cheque for N300,000.00 in response to some of the requests.
  5. The above quotations which the Plaintiffs made to the joint substantially paved way for the success of the said bid in the name of the 2nd Defendant and for the benefit of the joint venture partners.
  6. Upon the bid succeeding, the 4th Defendant sent me his hand-written letter dated 5/9/05 (a copy of which is attached hereto and marked “H”), called and invited the 1st Plaintiff to a meeting of the joint venture partners were inter alia progress report on the concluded bidding on the said port was given.
  7. Whilst waiting for the 2nd and 4th Defendants to send us the documents for the incorporation of the agreed joint venture company of execute and to give us progress report on the negotiation of the lease of the port with BPE/NPA and the dates of the handover of the said port, unknown to the Plaintiffs, the 2nd, 3rd and 4th Defendants were secretly promoting and incorporating the 1st Defendant as a vehicle to be used by them for the management of the said port.
  8. It was when the Plaintiffs learnt that the said port had been handed over to the 1st Defendant by NPA/BPE and that the 2nd, 3rd and 4th Defendants were responsible for the 1st Defendant that we caused our lawyers to conduct a search on the 1st Defendant at the Corporate Affairs Commission, Abuja and obtain certified true copies of its incorporation documents which to our chagrin, revealed that contrary to the joint venture agreement, only the 2nd and 3rd Defendants are the shareholders and directors of the 1st Defendant and that the 2nd, 3rd and 4th Defendants are wrongly using the 1st Defendant to wrongly cheat the Plaintiffs out of what they labored for. Attached hereto and marked “I”, “J” and “K” are the certified true copies of the Memorandum and Articles of Association, Particulars of Directors and Return of Allotment of Share Capital to the 1st Defendant.
  9. Since the port was handed over to the 1st Defendant by BPE and NPA, the Defendants had been managing it and collecting operation rates including… charges for cargo delivery, terminal handling, inland container depot transfers, storage, and penalties for violation of applicable rules by consignees and paying same into unknown bank accounts and using same for their benefits including a massive building on Warehouse Road, Apapa, Lagos, without involving the Plaintiffs.
  10. Contrary to the terms of the joint venture, intentions, understanding and irrevocable commitments in Exhibits A and B, the 2nd Defendant as the majority shareholder of the 1st Defendant hides the business activities at the said port from the Plaintiffs and manipulates the Defendants into sending all the cargoes from ships berthing at the said port to only its bonded terminal thereby starving Plaintiffs’ terminals of cargo and exposing the Plaintiffs 950-man staff and stevedores to the risk of redundancy and job termination.
  11. The Plaintiffs/Applicants’ terminals have been so starved of cargo in the face of the concessioning of all the ports in Lagos by NPA, that unless the Defendants/Respondents quickly honour the agreement on the sharing and distribution of cargo from ships berthing at the said port, the said bonded terminals would be closed down and their staff sacked for a lack of business and their multi-billion naira cargo handling equipment financed by banks would rot to their financial document.
  12. In the process of managing the port through the 1st Defendant and with the support of the 3rd and 4th Defendants had been secretly making profits (the amount of which is yet unknown to the Plaintiffs) which they have not paid over to the Plaintiffs.
  13. If this Honourable Court does not intervene by granting the relief sought, the Defendants would have succeeded in their plot of using the Plaintiffs’ credibility, technical, financial and material support to win the bid and subsequently stealing a match on the Plaintiffs on the management of the said port to the Plaintiffs’ detriment.”
See also  Mr. Ire Matthew Owuru & Anor V. Hon. Agi Michael Adigwu & Anor (2017) LLJR-SC

I have gone the wholehog to produce the above depositions to show that there is existing contract between the Respondents and the 2nd Appellant in which the Respondents have part-performed but the 1st Appellant with the support, connivance and assistance of 2nd, 3rd and 4th Appellants have reneged on the terms of the Contract. In sum, by the Respondents showing and as expressly stated in the supporting affidavit to the Originating

Summons the appellants have been alleged to be “secretly” reaping from the proceeds of the contract which terms and conditions they have neglected to comply with.

Section 251, (1) (g) of the 1999 Constitution earlier reproduced above is quite clear, when it is carefully juxtaposed against the Respondents’ claim and one is puzzled to appreciate how these claims can be properly “pigeon-holed” or situated within the very narrow purview of the said Section of the Constitution. No wonder the lower court wriggled out of the quagmire when it later veered to Section 251 (1) (c) of the Constitution in its judgment whereas the trial High Court restricted itself in assuming jurisdiction under Section 251 (1) (g) and there was no cross-appeal or Respondents’ Notice against that judgment before the lower court.

Now to the examination and consideration of a plethora of cases of this Court and the court below where there have been pronouncement on the lack of jurisdiction of the Federal High Court on the type of the case of simple contract. In ONUORAH V. KADUNA REFINERY and PETROCHEMTCAL COMPANY (supra) the provision of 239 (1) of the 1979 Constitution (as amended), in pari materia with 251 (1) (g) of the 1999 Constitution, which vests exclusive jurisdiction on the Federal High Court on matters pertaining to the administration or the management and control of the Federal Government or any of its agencies was considered. Nonetheless, the subsection quoted above has not conferred jurisdiction on the court where the Plaintiff’s claim is founded on contract. The facts of this case are not disputed by the parties. The decision of this Court is clear, cut and unambiguous. It held that the trial court lacked jurisdiction to entertain the Appellant’s suit, because it was based on simple contract and that only a State High Court has jurisdiction to entertain such claim. The lower court sought to distinguish Onuorah’s case from the instant case on page 998 of the Record on ground that the provision of S.239(1) of the 1979 Constitution is not in pari materia with S. 251(1) (g) of the 1999 Constitution. With due respect, the distinction sought to be made in this instance is erroneous because S.230 (1) of the 1979 Constitution as amended by Decree No.107 of 1993 is indeed in pari materia with the provision of S. 251 (1) pf the 1999 Constitution. The Decree amended S. 230 (1) of the 1979 Constitution. The Court of Appeal in that case acted rightly when it held that the trial court lacked jurisdiction to entertain the Appellant’s claim and relying on earlier decisions in cases of SEVEN-UP BOTTLING COMPANY V. ABIOLA & SONS (supra). TRADE BANK PLC V. BENILUX (NIG.) LTD. (2003) 9 NWLR (Pt.825) 416.

The lower court wrongly relied on the case of BRAWAL SHIPPING (NIG.) LTD. V. EXTRACTION and COMMODITIES SERVICES LTD. (2001) 14 FWLR (pt.732) 72 in holding that Section 251 (1) (g) of the (1999) Constitution applies and that the Respondents’ action falls within the Admiralty Jurisdiction Act. Apart from the fact that the case was wrongly applied, the Admiralty Jurisdiction Act was not also the bone of contention. The BRAWAL SHIPPING (NIG.) case is clearly a maritime matter and the judgment of my brothers OGUNTADE JCA and

CHUKWUMA-ENEH (as they were then) is very clear. It was held thus:

“A close scrutiny of the Plaintiffs/Respondents statement of claim amply reveals that the foundation of Plaintiff/Respondents’ case is a carriage of goods by sea contract. It is therefore a matter which falls within the exclusive admiralty jurisdiction of the Federal High Court…”

Subsection 1 (1) (e) and (i) of the Admiralty Jurisdiction Act Cap. 5. Laws of the Federation of Nigeria 2004, relied upon by the lower court, does not support the court’s position with regard to the admiralty jurisdiction of the Federal High Court as it affects the Federal Ports. The position is cleared by the unambiguous provision of that section as reproduced below.

“1(1) The admiralty jurisdiction of the Federal High Court (in this Act referred to as “the Court”) includes the following”

(g) Any matter arising within a Federal port or national airport and its precincts, including claims for loss of or damage to goods occurring between the off-loading of goods across space from a ship or any aircraft and their delivery at the consignee’s premises, or during storage or transportation before delivery to the consignee.

(h) ………………….

(i) Any cause or matter arising-from the constitution and powers of all ports authorities, airport authority and the National Maritime Authority.”

I agree with the learned Senior Counsel for the Appellants that the phrase “any matters arising within a Federal Port” is further qualified to the extent that such matters must relate to claims for loss of or damage to goods occurring between the offloading of goods across space from a ship or any aircraft and their delivery at the Consignee’s premises or during Storage or transportation before delivery of the consignment. Applying the ejusdem generis rule of construction, such matters “arising within a federal port” can only include other similar matters. In other words, the matters arising within a Federal Port to fall under the admiralty jurisdiction of the Federal High Court, such matters must be marine-related. It certainly has nothing to do with the management and operation of the port as the lower court has held.

The Respondents, with particular reference to Section 7(3) of the Admiralty Jurisdiction Act have contended that the Federal High Court has jurisdiction of the suit under reference on the ground that the word “includes” in any enactment enlarges the meaning of those words or phrases occurring in the body of the statute and is construed as comprehending not only such things as they signify according to their natural import but also extending to those things which the section declares that they “include.”

The word “includes” when used in a statute or written enactment can enlarge the scope of the subject matter it qualifies or tends to qualify, only to an extent permitted by law. Section 7 (3) of the Federal High Court Act reproduced hereunder clearly illustrates this point:

“7 (3) where jurisdiction is conferred upon the Court under subsections (1), (2) and (3) of this section, such jurisdiction shall be construed to include jurisdiction to hear and determine all issues relating to arising from, or ancillary to such subject matter (underlining for emphasis).”

From the above, it is clear that the relevant operative phrase is “include jurisdiction to hear and determine all issues relating to arising from or ancillary to such subject matter”, in determining the relevance of the phrase under reference, it is imperative to determine what the sub-phrase “such subject matter” refers to. From the clear provision of the Act, the only national interpretation of the phrase “such subject-matter” are those subject matter(s) identified in subsections (1), (2) and (3) of the Federal High Court Act; which is in pari materia with the provisions of Section 251 (1) (g) of the Constitution of the Federal Republic of Nigeria (1999 (as amended).

From the provisions of Section 7 (1), (2) and (3) of the Federal High Court, the admiralty causes identified therein has to do with “any admiralty jurisdiction, including shipping and navigation and the Rivers Niger, Benue and their affluent and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the Constitution and powers of the ports authorities for Federal ports) and carriage by Sea” (underlined sentences for emphasis),

The instant suit has nothing to do with shipping and navigation on the Rivers Niger, Benue and their affluent or any inland waterway. It is neither connected with or challenging the constitution and power of the ports authorities for any Federal ports, nor does it invoke any dispute arising from a carriage by Sea.

Considering the provision of section 1 (3) of the Admiralty Jurisdiction Act, it is clear that to determine and give effect to its true meaning”expression unius est exclusion alterious” maxim of interpretation must be applied. It is trite rule that where a statute mentions specific things, those things not mentioned are not intended to be included. See SEC V. KASUMU (2001) 10 NWLR (Pt.1150) 509. Despite the wide admiralty jurisdiction of the Federal High Court, under section 1 (1) of the Act, the Expression “includes” does not leave the ambit of the Court Jurisdiction open-ended. It is trite that the jurisdiction of a Court cannot be expanded, especially where same has been clearly defined and prescribed by a Statute. See TUKUR V. GOVERNOR OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 517. ONUORA V. K.R.P.C. (supra): ONWUDIWE V. F.R.N. (2006) 10 NWLR (Pt.988) 382 and GAFAR V. GOVERNOR OF KWARA STATE (supra).

Having come to the conclusion that the Federal High Court lacked jurisdiction to assume jurisdiction to try this suit, it will be futile and mere academic exercise to proceed to consider the remaining issues raised by the parties in the appeal and I accordingly so decline to do so.

In the light of the foregoing, the Appeal succeeds and is allowed. It follows therefore that the Federal High Court wrongly assumed jurisdiction on this Suit and the decision of the court below affirming that decision is set aside. The said Suit is struck out with costs of N50,000 awarded in favour of the Appellants.


PC.42/2009

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