S.O. Utuks & Ors. V. Nigerian Ports Authority (2005)

LAWGLOBAL HUB Lead Judgment Report

EDOZIE J.S.C.

The appellants were the plaintiffs before the High Court of Lagos State in suit No.LD/182/92 wherein they, for themselves and on behalf of the retrenched staff of the respondent authority sued the latter in respect of their right to pension and gratuity. As spelt out in their amended statement of claim, they prayed for:-

“1. A declaration that all the staff particularly those plaintiffs who put in a service period of between 5 to 9’bdyears with the defendant corporation are entitled to gratuity.

2. A declaration that those plaintiffs who have served the defendant for a period of 10 to 14’bdyears qualify for pension and redundancy benefit under the Pensions Act 1990 as amended by circular No. 06321/81/X/618 of 13th September, 1991 and the plaintiffs condition of service.
3. A declaration that each of the staff is entitled to productivity bonus which was approved when the plaintiffs were in service.
4. A declaration that all the plaintiffs are each entitled to 28 loads as contained in their condition of service.
5. An order compelling defendant to comply with the circular. ”

After due trial, the learned Judge of the High Court, Sahid J. on 12th of July, 1996 entered judgment for the plaintiffs in terms of reliefs 1, 2 and 5 of their claim. An appeal by the defendant against that judgment to the Court of Appeal, Lagos Division was on 28th May, 1993 dismissed for want of diligent prosecution.

Subsequently, the plaintiff in an effort to enforce the judgment of 12th July, 1996 filed a motion on notice dated 10th March, 1999 for the following prayers:-

“(1) An order directing the Managing Director of the judgment debtor to file and serve the comprehensive list of all the persons entitled to benefit in the judgment of 12th July, 1996 delivered by this Honourable Court on the applicants’ solicitors forthwith

Alternatively

(2)An order directing the Managing Director of the judgment debtor by virtue of his position as the chief executive and chief accounting officer to comply with S.74 of the Ports Decree No. 74 of 1993 by payment of the sum of N2,547,000,000.00 being the entitlements of the persons represented by the applicants from the judgment debtor’s funds to the applicants forthwith.”

In its reaction, the defendant filed a preliminary objection against the plaintiffs’ motion praying the trial court to strike out the motion on the ground that the trial court having delivered its final judgment of 12th July, 1996, was functus officio and therefore lacked the jurisdiction to entertain the plaintiffs’ motion. In a ruling delivered on 29th March, 1999, the learned trial Judge Sahid, J., dismissed the preliminary objection.

Thereafter, the trial court proceeded to hear the plaintiffs’ motion on notice dated 10th March,1999 and in a subsequent ruling delivered on 7th May, 1999 the learned trial Judge Sahid, J. granted the first prayer on the motion of 10th March 1999 for “an order directing the Managing Director of the defendant to file in court and serve on the plaintiffs’ solicitors the comprehensive list of all the persons entitled to benefit in the judgment of this court delivered on the 12th day of July, 1996.”

Aggrieved by both the ruling of 29th March, 1999 on the preliminary objection against the motion of 10th March, 1999,and the ruling of 7th May 1999, on the substantive motion of 10th March 1999, the defendant by separate notices of appeal, appealed against the rulings. The notice of appeal against the 1st ruling of 29th March 1999 was dated and filed on 6th April, 1999 while that of the 2nd ruling of 7th May, 1999 was dated 8th March, 2000 and filed on 9th March, 2000. The Court of Apeal, Lagos division heard the appeal on the 1st ruling of 29th March 1999 and on 3rd February, 2003 delivered a considered judgment whereby, it allowed the appeal, set aside the 1st ruling of 29th March, 1999 dismissing the preliminary objection. It upheld the said preliminary objection and struck out the plaintiffs motion on notice dated 10th of March, 1999.

The plaintiffs have now lodged the instant appeal against the judgment of the Court of Appeal, Lagos Division. Briefs of arguments were filed and exchanged. In the appellants’ brief filed on behalf of the plaintiffs the issues identified for determination are the following:-

“1. Whether the court below had power to set aside the Order of 29th March, 1999 dismissing the respondent’s preliminary objection and strike out the appellants motion leading to the order of 7th May, 1999 which was the appeal before the court below, the order dismissing the preliminary objection having been overtaken by events as can be seen from the notice of appeal dated 8th March, 2000 and not the notice of appeal dated 6th April, 1999 relating to the dismissal of the preliminary objection

2.Whether the respondent (defendant) argued the appeal dated 6th April, 1999 in its brief of arguments to enable the court below grant the reliefs not sought in the appeal before the court.”