O. Ntuks & Ors. V. Nigerian Ports Authority (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

By their application dated 24 May, 1999 and filed same date, the applicants have prayed for the following:

“(1) An Order affirming that the judgment of 12 July, 1996 is for all staff retrenched in June, 1991 which includes named and unnamed persons by virtue of its being a representative action.

(2) An order affirming the ruling of His Lordship A. R. A. Sahid of the Lagos High Court delivered on 7th May, 1999 facts.”

The back ground facts that gave rise to this application are as stated in the applicants’ 33 paragraphs affidavit and further affidavit of 8 paragraphs: also from the two Counter Affidavit filed by the respondent. The applicants were the plaintiffs whilst the respondent was the defendant in the Court below. For the purpose of this application, under consideration, the plaintiffs and the defendant will be referred to as ‘Applicants’ and the ‘Respondent’ respectively. The applicants by their writ of summons sued for themselves and on behalf of the Association of Retrenched staff of the Nigerian Ports Authority claiming as follows:-

1. A declaration that all the staff particularly those who put in a service period of between 5 to 9 1/2 years 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 1/2 years qualify for pension and redundancy benefits under the pension Act 1960 as amended by circular ref. No. B.63216/51/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.”

On the 12th July, 1996, Sahid J., entered judgment in favour of the applicants in terms of the 1st and 2nd reliefs. Dissatisfied, the respondents appealed against the judgment. However, on 16th February, 1998, this Court dismissed the Appeal for want of diligent prosecution.

On 20th September, 1999 we took arguments from Counsel for the parties. Learned Counsel for the applicants A. M. Makinde referring to the Affidavit in Support of the Motion and the Exhibits, then submitted that the judgment should cover 7,000 staff of the respondents, which list the respondents’ Counsel had shown to him on 6th October, 1998. Learned Counsel further referred to evidence of P.W 1 in the Record of Proceeding and submitted that Exhibit P1 contained only 301 names of some of the plaintiffs that authorised the applicants to sue. That the names of 2nd, 5th and 7th applicants are not listed among the 301 and for this category of staff cannot now bring separate action, as it would be statute-barred. He relied on the following authorities: Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 at 592: Ezeonwu v. Onyechi (1996) 2 SCNJ. 250 at 254: (1996) 3 NWLR (Pt.38) 499: Oladoye v. Administrator of Osun State (1996) 10 NWLR (Pt. 476) 38 at 45.

It is further submitted that the judgment of 12/7/96 being a declaratory judgment the order of 7/5/99 was consequential order aimed at giving effect to the declaratory orders of 12/7/96 and that this Court can affirm the judgment and even correct any errors that are made in the judgment of the lower Court. For this submission, learned counsel relied on Alakija v. Abdullahi (1998) 5 SCNJ P. 1 at P.4; (1998) 6 NWLR (Pt.552) 1 Sc. Oladoye v. Administrator of Osun State (supra) and Emir v. Imieyeh (1999) 4 SCNJ P.1 at p.5. (1999) 4 NWLR (Pt.599) 442.

Learned Counsel for the respondents, O. Idemudia opposed the application. He referred to the Counter-Affidavit of the respondents. He contended that the jurisdiction of this Court was invoked by the appellants’ Notice of Appeal dated and filed on 6/4/99 against the ruling of lower Court of 29/3/99. But the present application is asking for the affirmation of ruling delivered on 7/5/99. Learned Counsel for the respondent therefore submitted that the ruling the applicant wants to be affirmed is that of 7/5/99 which is subsequent to the ruling of this Court of Appeal. He submitted that since the second prayer of this application is not subsumable under the present proceeding, this Court therefore lacks jurisdiction. In support of this he relied on:

(i) Abdulkarim v. Incar Nig. Lt. 1984 NSCC (Vol. 15) 603 at 617 paras. 10-30; and

(ii) Oguma Assoc. Co. Nig. Ltd. v. IBWA Ltd. (1980) NSCC Vol. 19 (Pt.1) P. 395; (1988) 1 NWLR (Pt.73) 658.

On the First relief sought by the applicants, the learned Counsel for the respondent submitted that the prayer is incompetent as the applicants are seeking for an affirmation of the lower Court ruling delivered on 12 July, 1996 by way of a motion brought on 24th May, 1999 – 3 years after that judgment.

He referred to Oguma Assoc. Co. Ltd. case (supra). Referring to order 1 rule 20(4) and (5) of the Court of Appeal Rules, under which this application was brought, learned counsel submitted that sections 24 and 25 of the Court of Appeal Act supersede the provisions of order 1 r. 20(4) and (5) of the Court of Appeal Rules. That the rule of the Court does not confer jurisdiction on Courts but the Act of Parliament does. He refers to the case of Clement v. Iwuanyanwu (1989) 2 NSCC Vol. 20 (Pt.20) P.234. It is further submitted that even if the application is taken on its merits, it cannot stand as the jurisdiction of this Court cannot be invoked without an appeal being heard; and that this application amounts to abuse of Court process. He refers to an English authority of Hanson v. W. Coal Co. Ltd. and Gas Co. Ltd. (939) 3 All AER p. 47 at 55 (Q biter).

Learned Counsel for the respondent, however argued in the alternative, contending that the trial Judge had already made specific findings of fact in his Judgment. It is therefore contented that the application before this Court was for confirmation of a declaratory judgment. The issue thrown up is whether a declaratory judgment can be executed without a fresh Writ of Summons. He cited: Osakwe v. Nigerian Paper Mill (1998) 10 NWLR (Pt.S68) P.1 at P.13. para. B-C-H. Tukur v. Gongola State Govt. (1989) 4 NWLR (Pt. 117) P.517. It is submitted that 301 staff of the applicants went to Court and not 7,000. He referred to paragraph 11 of the main Counter-Affidavit for the validity of this argument showing that some ex-staff of the applicants had filed an action in the Federal High Court in suit no. FHC/L/CS/706/95 which is still pending on the same subject matter.

It is finally submitted that, there is pending appeal against the order of 17th May, 1999 contrary to the claim of learned Counsel for the applicants, that there was none. A. M. Makinde Esq. replied on point of law. He submitted that on 16th February, 1998 in the light of Exhibit. D. M. 4 attached to Affidavit in Support of the motion of the applicants, this Court dismissed the appeal of the respondent against the judgment of the lower Court.

The two prayers sought by the applicants in their application are grounded on Order 1 Rules 20(4) and (5) of the Court of Appeal Rules 1981 (as amended).

Firstly, Rule 20(1) which deals with general powers of this Court provides as follows:

“20(1) In relation to an appeal, the Court shall have all the powers and duties as to amendment and otherwise of the High Court including without prejudice to the generality of the foregoing words, in Civil matters the powers of the High Court in Civil matters to refer any question or issue of fact arising on the appeal for trial before, or inquiry and report by, an official or special referee.

In relation to a reference made to an official or special referee, anything which can be required or authorised to be done by to or before the High Court shall be done by to or before the Court. (italics for emphasis)

4. The Court shall have power to draw inferences or fact and to give any judgment and make any order which ought to have been given or made and to make such further or other order as the case may require, including any order as to costs.
5. The powers of the Court under the foregoing provisions of this rule may he exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision of the Court below, or by any particular party to the proceeding in that Court or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and the Court may make any order on such terms as the Court thinks just, to ensure the determination on the merits of the real question in controversy between the parties, (italics are for emphasis).

May I pause at this moment to state clearly the jurisdiction of the Court of Appeal as provided by the relevant statutes?

The exercise of jurisdiction of this Court is conferred only by statutory provisions. Its original jurisdiction is as provided in section 239(1) of the 1999 Constitution of the Federal Republic of Nigeria and exercisable in the following instances when it is to hear and determine any question as to whether:

“(a) Any person has been validly elected to the office of the President or Vice – President: or

(b) The term of office of the President or Vice President has ceased; or

(c) The office of President or Vice President has become vacant.”

On the other hand by virtue of S.240 of the 1999 Constitution, the appellate jurisdiction of the Court of Appeal is exercised only to hear and determine appeals from, the decisions of those Courts of Record listed therein or the Court martial or other tribunals as may be prescribed by an Act of the National Assembly. This jurisdiction is further limited by the provisions of the Courts of Appeal Act Cap. 75 Laws of the Federation of Nigeria, 1990 and the Court of Appeal Rules 1981 (as amended).

Where the power of the court has been clearly and unambiguously provided for in the statutes, for the Court to assume jurisdiction, it must be shown that the provisions of those statutes are followed strictly to the letter. In other words the Court will lack jurisdiction to hear and determine an application brought before it if its jurisdiction is not properly invoked. On 16 February, 1998 this court dismissed the appeal against the declaratory judgment given in favour of the applicants for want of diligent prosecution and failure to file brief of argument within the prescribed time.

The applicants neither filed cross-appeal nor respondent Notice during the subsistence of the respondent’s Appeal. But only filed this motion, three years after the judgment entered in their favour seeking to affirm that the said judgment is for all the 7,000 staff retrenched in June, 1991 instead of the 301 staff or the applicants. This is the first leg of the relief sought in this application. I am of the view that the jurisdiction of this Court is not properly invoked. This Court does not exercise any jurisdiction other than that conferred by statute. See Akanke Olowu & 3 Ors v. Amudtu Abolore & Anor (1993) 5 NWLR (Pt.293) 255 at 270.

If there had been cross-appeal by the applicants, it would have survived after the dismissal of the respondent’s substantive appeal, for existence of cross-appeal is not dependent on the substantive appeal. The true legal position has been lucidly stated in Olowu’s case (supra) by the Supreme Court thus:

“It is well settled that cross-appeal is an appeal in its own right, and does not depend for its existence or survival on the substantive appeal. Hence the dismissing of the substantive appeal does not affect the cross appeal. The Court by dismissing of the substantive Appeal becomes functus officio thereto. The jurisdiction with respect to the cross-appeal is not affected.”

Although by its nature cross-appeal is more appropriate in an instance where a party is seeking to set aside a finding in a judgment which is crucial and fundamental to a case, the applicants who were the respondents in the appeal that was dismissed were at liberty and could have resorted to the filing of a respondent’s Notice under Order 3 Rules 14(1) and (2) of the Rules of this Court which provide as follows:

14 – (1) A respondent who, not having appealed from decision of the Court below, desires to contend on the appeal that the decision of that Court should be varied either in any event or in the event of the appeal being allowed in whole or in part must give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make, or to make in that event, as the case may be.

(2) A respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds other than those relied upon by the Court must give Notice to that effect specifying grounds of that contentions.”

Realising the nature of a respondent’s Notice, the person who opts for it wants to retain the judgment appealed against by the appellant but wants some changes in or variation of it. I am of the view that the respondent’s notice would have been quite ideal in the instant case and not by way of an application as it is in this case, made even belatedly to affirm a judgment delivered almost three years ago.

It is in view of what has been said above that I cannot grant the applicant’s relief sought in this first leg of their application.

The second leg of this application is asking for the affirmation of ruling of Lagos High Court delivered on 7/5/99. The ruling is to the effect that the Managing Director of the respondent should file in the Court below and serve the applicant’s Solicitors comprehensive list of all the persons entitled to benefit in the judgment of that Court delivered on 12/7/96. As there is no appeal pending in this Court on the decision of the lower Court given on 7/5/99, which should have formed the basis for this second relief I am constrained to come to an inevitable conclusion arrived at in respect of the first relief sought by the applicants.

As wide as the powers given the Court of Appeal in section 16 of Court of Appeal Act appear to be, I do not think, they include power to consider incompetent application such as this brought by the applicants under Order 1 rule 20 of the rules of this Court. This Court is not vested with original jurisdiction and it will not be acting properly to hear and determine issues regarding the validity of the ruling of the Lagos High Court dated 7th May, 1999 when in fact and in Law there was no appeal against the said Ruling before this Court for hearing and determination. See Federal Mortgage Bank of Nigeria v Nigeria Deposit Insurance Corporation (1999) 2 SCN 1 57: (1999) 2 NWLR (Pt. 591) and Emir v. Inieyeh, (1999) (supra). One cannot put something on nothing. Reason and prudence clearly dictate that if an appellate Court is called upon to review, affirm or indeed vary a judgment or ruling of a lower Court, the appellant must take appropriate legal steps to invoke the jurisdiction of the appellate Court. I cannot go into the merits of this application having held the view that proper jurisdiction of this Court has not been invoked, notwithstanding the sentiments and pathetic pictures painted on the plight of the teaming 7,000 retrenched staff of the respondent. It is always easy for the Counsel and parties to be carried away by sentiments and ubiquitous phrase “interest of justice” when soliciting for Courts discretion. However, it must always be remembered that justice is meant for all parties, it is not for only one party to an action. The wise counseling to Courts per Obaseki J.S.C. in Ezeugo v. Ohanyere (1978) 6-7 S.C. 171 at 184 is that sentiments should command no place in judicial deliberations and instructive pronouncement per Eso J.S.C. in Willoughby v. IMB Ltd. (1987) 1 NWLR (Pt.48) 105 at 118 is that justice is done once it is in accordance with the law.

The respondent’s appeal having been dismissed for want of diligent prosecution and failure to file brief of argument and there is no cross-appeal or respondent’s Notice that survive the substantive appeal this Court becomes functus offico. See Orabator v. Mercy Amata (1981) 5 SC 276: Nwaora v. Nwakonobi (1985) 2 SC 86-167; and Yonwuren v. Modern Signs Ltd. (1985) 1 NWLR (Pt.2) 244, 245. It lacks jurisdiction to entertain this application. My attention has not been drawn to any pending appeal which warrants the granting of this application. The constitutional and statutory jurisdiction of the Court of Appeal is to hear appeals from the lower superior Courts of record. This jurisdiction is limited to that prescribed by the Court of Appeal Act, 1976 and the Court of Appeal Rules of 1981 as amended. This is the true-legal position. Those provisions are clear. An appellate Court will not exercise any jurisdiction that is not conferred by Statute. Similarly, it does not exercise inherent powers other than those of Courts of record. The consideration of this application under Order 1 Rules 20 (4) and (5) of the Rules of this Court certainly contemplates the existence of an appeal. To do otherwise, all in the interest of justice is to make nonsense of the relevant statute and defeat the manifest intention of the legislature.

For the foregoing reasons I have come to irresistible conclusion that this application is incompetent and it is accordingly struck out without any order as to costs.

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Other Citations: (2000)LCN/0659(CA)