IN THE SUPREME COURT OF NIGERIA
On Friday, the 8th Day of June 2012
Before their Lordship
Aloma Mariam Mukhtar …… Justice ….. Justice Supreme Court
Supreme Court Francis Fedode Tabai …… Justice ….. Justice Supreme Court…Suleiman Galadima ….. Justice Supreme Court….Nwali Sylvester Ngwuta ….. Justice Supreme Court….Olukayode Ariwoola ….. Justice Supreme Court
Between:
Ports And Cargo Handlings Service Company Limited – Appellant
Sifax Nigeria Limited Mr. Babatunde Olarenwaju Afolabi Otunba Michael Olatunde Olowu and Migfo Nigeria Limited …. Respondent

Denga Services Limited

Judgment of the Court delivered by Suleiman Galadima. JSC

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 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 High 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 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 holding 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 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 errors 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 of 4/10/2011. 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.

To be continued…

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