Sifax Nigeria Limited & Ors V. Migfo Nigeria Limited & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the High Court of Lagos State delivered by L. B. LAWAL-AKPAPO J. on the 5th day of July, 2013 with respect to the Appellant’s motion on notice filed on 20-12-2012.

The Respondents herein had as Claimant in the Lower Court commenced an action by way of a writ of Summons, and statement of claim and filed on 18/7/2012 against the Defendants (now Appellants) wherein they claimed the following reliefs:-

WHEREFORE the Claimants claim against the Defendants jointly and severally as follows:-

1. a declaration that the contents of the Technical Proposal/Bid documents dated June, 2005 and the Memorandum of Understanding dated 27/07/05, other relevant oral statements and documents made between, series of letters written by and the conduct of the Claimants and the 1st Defendant in respect of the bidding in the name of the 1st Defendant for the concession and the subsequent operation/management of Terminal C, Tin Can Island Port, Apapa, Lagos.
2. A declaration that by the contract constituted by the Technical Proposal/Bid documents dated June, 2005, the Memorandum of Understanding dated 27/07/05 and other relevant oral statements and documents made between, series of letters written by and the conduct of the Claimants and the 1st Defendant in respect of the bidding in the name of the 1st Defendant for the concession and subsequent

operation/management, of Terminal C, Tin Can Island Port, Apapa, Lagos; the 1st Defendant, the 1st Claimant and the 2nd Claimant are on the payment of the purchase price, entitled to hold and hold, all the shares in the said joint venture and also in the 5th Defendant in the ratio of 40%, 30% and 30% respectively and their Chairmen or Chief Executive Officers are entitled to be appointed as directors of the said joint venture or the 5th Defendant.

3. A declaration that the 1st and 3rd Defendants as the shareholders of the 5th Defendant (as at July, 2006 and or any other persons holding its shares) hold 60% of the shares in the said 5th Defendant in implied or constructive trust for the Claimants in the proportion of 30% thereof for each Claimant.
4. An order for the specific performance of the aforesaid contract between the 1st Defendant and the Claimants.
5. further to relief 4 above, an order directing the 1st and 2nd Defendants to cause the Claimants’ Chairmen or Chief Executive Officers to be appointed as the directors of the 5th Defendant and 30% of the shares in the 5th Defendant to be transmitted to each Claimant in line with the aforesaid contract.
6. A declaration that the 1st Defendant did not act for itself alone but acted for itself and as the agent of and also as an implied or conservative trustee of the Claimants and itself in the bid and conclusion of the bid for the concession and subsequent operation/management of Terminal C, Tin Can Island Port, Apapa, Lagos.
7. An order for all necessary and consequential accounts, execution of relevant documents by the parties, direction and inquiries and in particular directing the Defendants to render a true, fair and accurate account of the operation/management of Terminal C, Tin Can lsland Port, Apapa, Lagos including all funds, earnings, expenses, investments, profits that had accrued to or had been incurred by them, relating to or arising from, the business of the 5th Defendant and the said port with effect from the date of handing over of the said port to the 5th Defendant or to the Defendants by the Bureau of Public Enterprises and/or the Nigerian Ports Authority and audited by a Chartered Accountant independently appointed by the Court.
8. An order for the payment of the amount found to be due to the Claimants on the basis of 30% each of the shares in the joint venture or the 5th Defendant as per the aforesaid contract on the taking of such account and interest therein at the rate of 21% per annum with effect from 8/8/05 until judgment and thereafter interest at the rate of 7.5% on the judgment debt until final payment of the said debt.
9. A declaration that the 1st to 4th Defendants conspired to injure the Claimants in their trade as terminal/bonded warehouse operators and to defraud the Claimants.
10. The sum of N20 Billion against the Defendants as damages for the tort of conspiracy to injure and defraud the Claimants in their trade as terminal/bonded warehouse operators.
11. An order of perpetual injunction restraining the Defendants whether by themselves, their directors, agents, privies or servants or otherwise howsoever from further operating/managing Terminal C, Tin Can Island Port, Apapa, Lagos without including the Claimants as co-operators/managers of the said port and holders of the agreed ratio of the shares and appointing their Chairmen or Chief Executive Officers as directors of the 5th Defendant in line with the said contract.”

Briefly put, the facts of this case is that the 1st Appellant and the Respondents put up a Memorandum of Understanding (MOU dated 27-7-05 to jointly bid for the concessioning and subsequent joint management of Terminal ‘C’ Tin Can Island Port, Apapa, Lagos, which was then being concessioned by the Federal Government of Nigeria through the Bureau for Public Enterprises (BPE) and the Nigerian Ports Authority (NPA).

The bid document was subsequently submitted to the BPE by the 1st Appellant on behalf of the others after their joint effort and input in preparing same. It was also part of the MOU that, should the bid be successful, a joint venture company will be incorporated by the joint venture partners to manage the operations of the Port. They eventually emerged the preferred bidders and while waiting for the 1st and 4th Appellants to summon the Respondents for a meeting to map out the way forward including the incorporation of the Joint Ventures Company.

The 1st , 3rd and 4th Appellant secretly promoted and incorporated the 5th Appellant (Port and Cargo Handling Services Company Limited) to the exclusion of the Respondents and without their knowledge, upon being aware of the development and that the Port had been handed over to the 5th Appellant by the BPE/NPA, the Respondents immediately conducted a search at the Corporate Affairs Commission, Abuja and on 20-7-2006 obtained certified true copies of the incorporation documents which revealed that only the 1st and 3rd Appellants where stated as shareholders and directors to the exclusion of the Respondents contrary to the terms of the MOU.

After efforts to meet with the Appellants with a view to resolving the issue failed, the respondents filed suit No. FHC/L/CS/664/2006 at the Federal High Court, Lagos. Judgment was eventually given in their favour and this was affirmed by the Court of Appeal. But on further appeal to the Supreme Court the suit was struck out on the ground that the Federal High Court lacks the jurisdiction to entertain the action instituted by the Respondents.

The said judgment was delivered on 8-6-12. The Respondents thereafter commenced this action afresh at the High Court of Lagos State (Lower Court) on the 18-7-2012. The Appellants as the defendants in the Lower Court reacted by filling a motion on notice wherein they prayed that the suit be struck out for being statute barred.

In a ruling delivered on 5-7-2013, the Lower Court held that the action is not statute barred because it was not caught be Section 8 of the Limitation Law of Lagos State. Being dissatisfied with the said ruling the Appellants filed a Notice of Appeal dated and filed on 15-7-2013. It contains four grounds of appeal.Courts & Judiciary

Briefs of arguments were subsequently filed and served by the parties.

The Appellants brief of argument is dated and filed on 13-11-13 and their reply to the Respondents brief is dated and filed on 5-12-14 but deemed properly filed on 2-3-15.

The Respondent brief of arguments is dated and filed on 18-11-14. They also filed two Respondents Notice of Intention to contend. One is the Respondents Notice to affirm the decision of the Lower Court on other grounds, while the other is to vary the heading of the ruling of the Lower Court dated 5-7-2013. They are both dated 7-5-14 and filed on 8-5-14.