United Cement Company of Nigeria Limited V. Akamkpa Local Government Council & Ors (2016)

LawGlobal-Hub Lead Judgment Report

ONYEKACHI AJA OTISI, J.C.A. 

 This appeal is against the judgment of the Federal High Court sitting at the Calabar Judicial Division Coram Honourable Justice E. A. Obile, delivered on Wednesday, March 27, 2013 wherein the learned trial Judge declined jurisdiction to entertain the suit of the Appellant and made an order transferring the Appellant’s suit to the Chief Judge of Cross River State.

?The Appellant, as plaintiff had filed an originating summons in the Calabar Judicial Division of the Federal High Court, praying inter alia for a declaration that the 1st Respondent herein, sued as 1st defendant therein, does not have the constitutional right to recognize and/or authorize any person or group of person(s) or association as Mines and Quarry Development Association and to operate as such. Learned Counsel for the Respondents filed a Preliminary Objection objecting to the jurisdiction of the Court on the grounds that the dispute between the parties was a trade dispute. In his ruling on the preliminary objection, the learned trial Judge held, inter alia, that “the preliminary objection raised by the

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defendants Counsel is sustained. The objection has merit and is upheld although not on his ground of complain”. The learned trial Judge went on to transfer the originating summons to the Honourable the Chief Judge of Cross River State. Dissatisfied with the said ruling and the consequential order, the Appellant lodged this appeal on April 5, 2013 by Notice of Appeal upon three grounds of appeal.

The parties exchanged Briefs of Argument, including the Appellant’s Reply Brief, which were all respectively adopted on 26/4/2016 by Julius O. Idiege, Esq. for the Appellant, and by Chief F.O. Onyebueke for the Respondents.

The Appellant formulated as a sole issue for the determination the following:

“Whether the learned trial judge was right in law to have declined jurisdiction to entertain the suit of the Appellant?.

This issue was adopted by the Respondents.

It was submitted for the Appellant that the learned trial Judge contradicted himself when he held, inter alia, that ?the preliminary objection raised by the defendants Counsel is sustained. The objection has merit and is upheld although not on his ground of complain”. It was

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contended that having found that the ground of complaint of the Respondents was not sustainable, the learned trial Judge ought to have dismissed their preliminary objection and then proceeded to entertain the claims of the Appellant. But that the learned trial Judge went outside the pleadings to suo motu raise an issue, consider and determine it, without giving the parties opportunity to address him on it. In so doing, it was argued that the Appellants were denied fair hearing; relying on Stirling Civil Engineering (Nig) Ltd v Yahaya (2005) 11 NWLR (Pt 935) 181 at 211-212; Mil Gov. of Lagos State v Adeyiga (2012) ALL FWLR (PT 616) 396 at 414 – 425.

?It was further argued that the learned trial Judge misdirected himself when he held that no constitutional issue had been formulated by the Appellant. This holding is contrary to the issues raised for determination and the clear declarations sought by the originating summons. By the subject matter as well as reliefs sought, the trial Court had been invited to determine issues arising from mines and the constitutional powers of the 1st Respondent in the light of Item 39 of the 2nd Schedule to the Constitution of

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