APAPA BULK TERMINAL LIMITED & ORS v. NIGERIAN SHIPPERS’ COUNCIL & ANOR (2017)

APAPA BULK TERMINAL LIMITED & ORS v. NIGERIAN SHIPPERS’ COUNCIL & ANOR

(2017)LCN/10199(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of July, 2017

CA/L/189/2015(R)

RATIO

FRESH ISSUES OR POUNT OF LAW: DEFINITION OF FRESH ISSUE OR POINT OF LAW

“Fresh issues have been defined to mean issues or questions which were not raised nor tried nor considered nor pronounced upon by the lower Court. See SHOWEKAN VS SMITH (1964) 1 all WLR 168; AKPENE VS BARCLAYS BANK LTD AYAWBOLA (SIC) 1977 1 SC 47, FADIORA VS GBADEBO (1978) 1 SC 219 @ 247, OSINU PEBI VS SAIBU (1982) 1 SC 104, OKOLO VS UNION BANK OF NIGERIA LTD (1998) 2 NWLR (Pt.539) 618.” PER JAMILU YAMMAMA TUKUR, J.C.A.

APPEAL: THE PRINCIPLE GOVERNING THE FILING OF AN INITIAL APPE AND AN AMENDED APPEAL

The law governing the filing of an initial appeal and an amended appeal has been held by the Supreme Court in SOUTH ATLANTIC PETROLEUM LIMITED VS THE MINISTER OF PETROLEUM RESOURCES (2013) LPELR 21892 (SC) to be different. The Apex Court per MUHAMMAD JSC stated:-

“This Court, see Tsokwa Oil Marketing CO VS B.O.N LTD (2002) 11 NWLR (Pt.777) 163, has dwelt on the difference between the Law Governing the filing of an initial appeal and an amended appeal. The principle remains that the two are not the same. Where as the filing of original appeal from decisions of the Court of appeal to this Court is governed by Section 233 of the 1999 Constitution as amended and Section 27 of the Supreme Court Act, the filing of additional grounds of appeal, whether or not the grounds require leave of Court is governed by the Supreme Court Rules by virtue of the combined operation of Subsection 6 of Section 233 and Section 236 of the 1999 Constitution. It must be restated that the principles of law as to when to file either and the effect of non-compliance in each case differ. While non-compliance with the Constitution and the Act is fatal, non-compliance with Rules of Court has been adjudged a mere irregularity see SARAKATU VS NHDS LTD (1981) 4 SC 26 and OGBOMOR VS STATE (1985) 1 NWLR (Pt.2) 223.” PER JAMILU YAMMAMA TUKUR, J.C.A

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

1. APAPA BULK TERMINAL LTD
2. ENL CONSORTIUM LTD
3. WEST AFRICAN CONTAINER TERMINAL LTD
4. APM TERMINALS APAPA LTD
5. JOSEPH DAM PORT SERVICES LTD.
6. TIN-CAN ISLAND CONTAINER TERMINAL LTD
7. PORTS AND CARGO HANDLING SERVICES LTD
8. FIVE STAR LOGISTICS LTD
9. PORTS AND TERMINAL OPERATORS NIGERIA LTD
10. BUA PORT SERVICES LTD
11. DRAWAL OIL SERVICES LTD
12. ECM TERMINALS LTD
13. PORTS & TERMINAL MULTI SERVICES LTD
14. SEAPORT TERMINAL OPERATORS ASSOCIATION Appellant(s)

AND

1. NIGERIAN SHIPPERS’ COUNCIL
2. REGISTERED TRUSTEES OF SHIPPERS ASSOCIATION OF LAGOS STATE Respondent(s)

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Lead Ruling): This is a motion on notice filed on the 13th day of May, 2016 by the Appellants herein, pursuant to the Provisions of Order 7 Rule 1 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of this Court.

The reliefs sought by the Appellants/Applicants are set out thus:-
?(a) An Order granting leave to the Appellants/Applicants for leave to raise new issues and/or additional grounds of appeal as contained in the ?Notice of Appeal? already filed on 13/03/2015, which issues or additional grounds were not argued at the Federal High Court, Lagos.
(b) An Order granting extension of time to the Appellants/Applicants within which to Appeal on the said ground of Appeal.
(c) An Order deeming the additional ground of appeal already incorporated in the said Notice of Appeal as properly contained in the said Notice of Appeal;
(d) An Order granting leave to the Appellants/Applicants for leave to argue the new issues and/or additional grounds of appeal as contained in the Notice of Appeal and having already been argued in the Appellants

Brief of argument already filed and served; and
(e) An Order deeming the additional grounds of appeal already argued in the Applicants? Brief of Argument filed 17/06/15 as properly argued; and for such order or further orders as this honourable Court may deem fit to make in the circumstances.?

The grounds upon which the Appellants/Applicants application is brought are set out in the motion paper. A twelve paragraph affidavit was filed in support of the application. A further affidavit of six paragraph was filed on 16th of January 2017, in support of the application. A notice of Appeal is attach to the further affidavit and marked as Exhibit FA 1.

The Appellants/Applicants filed a Written Address in support of the application on the 16th day of January, 2017. Two replies on points of law were filed same day on the 2nd day of May, 2017 by the Appellants/Applicants in response to the Written Addresses of the 1st and 2nd Respondents respectively. The 1st Respondent filed A Written Address on the 31st January by 2017 opposing the application.
?
The 2nd Respondent?s Written Address in opposition to the application was filed on

the 23rd day of January, 2017.

SUBMISSIONS OF COUNSEL
Learned counsel for the Appellants/Applicants distilled a lone issue for determination thus:-
?Whether the Applicants are entitled to leave of this Honourable Court to amend the Notice and grounds of appeal by raising additional and or fresh grounds of appeal against the order for joinder of the 2nd Respondent ground by the lower Court on October 12, 2014, which was not canvassed at the lower Court.?

Learned counsel submitted that there is recognition in Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999. (as Amended) of the inherent power of the Honourable Court to extend the time within which an Appellant may seek leave to Appeal, leave to Appeal and/or extension of time within which to Appeal. It is contended by learned counsel that the inherent power of this Court in granting leave can only be exercised in the interest of justice and in deserving circumstances.

Learned counsel referred to Braithwaite Vs Dalhatu 2016 13 NWLR (Pt 1528) P. 32 at 51 paragraph F. It is further submitted by learned counsel that the joinder of the 2nd Respondent

in the lower Court was done suo motu without any input from the Applicants in spite of the opposition to the joinder. It is further submitted that the Rules of this Court empowers this Honourable Court to grant leave in the interest of justice to an Applicant by extending the time within which he may perform an act for the purposes of regularizing his processes.

Learned counsel referred to Order 7 Rule 10 (1) of the Court of Appeal Rules 2011 and Section 241 2 (c) of Constitution of the Federal Republic of Nigeria 1999 (As Amended) on the point. Learned counsel further submitted that the application simply seeks for Orders of this Court to regularise grounds 6 & 17 already in the notice of Appeal filed which grounds deals with the joinder of the 2nd Respondent.
?
It is contended by the learned counsel for the Appellants/Applicants that the Applicants have sworn to an affidavit stating in clear terms good and substantial grounds for the delay in bringing these application. Learned counsel submitted that the sin of counsel should not be visited on the litigant and that the application is not intended to overreach the Respondents. Learned counsel urge

this Court to grant the application. In its Written Address opposing the application, the 1st Respondent formulated a single issue thus:-
?Whether the Appellants? Motion on Notice dated May 13, 2016, as presently constituted can be granted by this Honourable Court.?

Arguing the issue, learned counsel for the 1st Respondent argued that the purported fresh point sought to be canvassed by the Appellant was argued and determined before the lower Court and that the Appellants prayer to argue the purported fresh point is incompetent. It is further argued by learned counsel that while an Appellant is allowed to raise a fresh point of law for the first time on Appeal, it must be shown that such fresh issue was not canvassed in the lower Court.

Learned counsel referred to Gbadamosi Vs. Dairo (2007) 3 NWLR (Pt 1021) 230 at 306 paragraph G-H. Learned counsel submitted that the issue was canvassed and dealt with in the lower Court and that the Appellants/Applicants conceded to that point at paragraph 7 (viii) of their affidavit in support of the Appellant application.
?
Learned counsel further submitted that the Appellants/Applicants

application for leave to Appeal the interlocutory decision of the lower Court is incompetent, because no leave was sought to argue the ground relating to the interlocutory decision of the lower Court.

It is further contended by learned counsel that even though the Appellants/Applicants are out of time yet a cursory look at the reliefs sought shows clearly that the Appellants failed to set out clearly the trinity prayers required by law. It is contended by learned counsel that the failure of the Appellants/Applicants to set out the trinity prayers is fatal to their case.

Learned counsel referred toBolex Vs Incar (1997) 7 SCNJ 194 at 199; Adelekan Vs Ecu-line (2006) 12 NWLR (pt 993) 33 at 48. Learned counsel finally urge this Court to refuse the application with substantial costs.

In their reply on points of law to the Written Address of the 1st Respondent, it is contended by learned counsel for the Appellants that the argument of the 1st Respondent that leave ought to be obtain by the Appellants by way of an originating application before the Appellants can argue grounds 6 and 17 of the Notice of Appeal is misconceived as according to learned counsel

this Court is endowed with the powers to grant such applications in the manner made by the Appellants.

Learned counsel for the Appellants/Applicants contended that the judicial norm these days is to do substantial Justice rather than technical Justice relying on the Supreme Court decision in SC 633/2013 between Etobom (Dr) Anthony Asuqua Ani & 4 Ors Vs. Etubom Ekpo Okon Abasi Oto & 4 Ors per A.A. Augie JSC delivered in February 2017.
Learned counsel urge this Court to grant the prayers contained in the Appellants/Applicants motion on notice dated 13th March, 2015.

The 2nd Respondent in its Written Address filed on 23rd January, 2017 opposing the application formulated the following issues for determination to wit:
1. Whether this Honourable Court can grant the Appellants application as constituted.
2. Whether the issue/issues raised in this application is/are new issues.

Learned counsel for the 2nd Respondent submitting on the first issue argued that the law is settled that an application for leave to appeal against a consent decision or interlocutory under Section 242 (1) of the Constitution of the Federal Republic of Nigeria

1999 as in the instant case is by originating application learned counsel referred to the case of IYAWERE VS OMOH (2013) ALL FWLR (Pt.671) pg. 1565 @ 1580 paras D ? H on the point.

Learned counsel further submitted that the Appellant/Applicants application is incompetent, as it can only be initiated by an Originating process, and that the application cannot revive or breath life to an incompetent ground of appeal in a pending appeal as in this Appeal.

Learned counsel referred to the decision of the Supreme Court in IKWEKI & ORS VS EBELE AND ANR 2005 ALL FWLR PART 257, 1401 @ 1419 Para F Where Oguntade JSC stated:-
? ?. If an aggrieved person who requires leave to appeal fails to obtain leave before bringing such appeal, the appeal is incompetent

Learned counsel also cited BRAWAL SHIPPING NIGERIA LIMITED VS OMETRACO INTERNATIONAL LIMITED (UNREPORTED SUIT (SIC) CA/L/121/2007) Ruling delivered on 24th November, 2009.

On issue two, learned counsel for the 2nd Respondent contends that the issues raised in the motion paper filed by the Appellants/Applicants are not fresh issues.
?
Learned counsel

referred to pages 1657 ? 1659 of the record of appeal on the point, and finally urge us to dismiss the application with substantial costs.

In the reply on points of law filed on 2nd day of May 2017 in response to the written address of the 2nd Respondents, the arguments contained therein are the same as in the reply on points of law filed against the written address of the 1st Respondent and which arguments are substantially captured in this Ruling and I see no need to reproduce same here. Suffice it to say the Appellants/Applicants finally urge this Court to grant the application.

RESOLUTION
The first issue worthy of consideration at this stage is the sole issue distilled by the 1st Respondent and which issue is substantially the same with the 1st issue formulated by the 2nd Respondent, and the determination of which will have the salutary effect of disposing the lone issue distilled by the Appellants.

For ease of reference it is reproduce hereunder:-
Whether the Appellants motion on notice dated May 13, 2016 as presently constituted can be granted by this Honourable Court.

It is the submission of the 1st Respondent that

the purported fresh point sought to be canvassed by the Appellant was argued and determined before the lower Court and that the prayer to argue the purported fresh point is incompetent.

The 2nd Respondent argued along the same line, while the Appellants/Applicants contends that the issue of joinder was taken suo motu by the lower Court.
?
Learned counsels on both sides have drawn our attention to pages 1657 ? 1659 of the record on the point. I have perused the relevant portions of the record referred to us which is in VOL. 2 and I agree with learned counsels for the Respondents that the fresh issue sought to be raised in this Court, which relates to the joinder of the 2nd Respondent as 2nd Defendant in the lower Court had been canvassed and determined in the lower Court. I do not also share the view expressed by learned counsel for the Appellants/Applicants that the issue of joinder was taken suo motu by the Court without any input on the part of the Appellants/Applicants. That submission is uncharitable given the facts in the body of the record which shows that the issue was raised vide a motion on Notice filed on 19/11/2014 by the 2nd

Respondent as party seeking to be joined as a Defendent in the suit. (See pages 179 ? 185 of Vol. 1 Record of Appeal for the motion on notice for joinder, Affidavit in support and Written Address).

The proceedings of the lower Court as captured at pages 1657 ? 1659 shows clearly that the application for joinder was moved by learned counsel for the applicant and same was not objected to by learned senior counsel for the plaintiff Mr F. Atoyebi SAN before the application was granted by the lower Court.

The issues sought to be raised in this Court by this application are certainly not fresh issues. A fresh issue or point of law is a new point of law which was not raised by any of the parties at trial. In GIWA VS OJU ROMI & ANOR CA/L/701/08 delivered on 14th July, 2011 this Court per Jauro JCA defines fresh issues thus:-
?Fresh issues have been defined to mean issues or questions which were not raised nor tried nor considered nor pronounced upon by the lower Court. See SHOWEKAN VS SMITH (1964) 1 all WLR 168; AKPENE VS BARCLAYS BANK LTD AYAWBOLA (SIC) 1977 1 SC 47, FADIORA VS GBADEBO (1978) 1 SC 219 @ 247, OSINU PEBI VS SAIBU

(1982) 1 SC 104, OKOLO VS UNION BANK OF NIGERIA LTD (1998) 2 NWLR (Pt.539) 618

Now while the Appellants/Applicants have the constitutional right to appeal, the interlocutory decision of the lower Court in terms of grounds 6 and 17 captured in the notice of appeal already filed the Appellants/Applicants must obtain the leave of the trial Court or of this Court. See: OBIORAH VS F.R.N. 2016 LPELR 409.65. In so doing, the Appellants/Applicants must come by way of an Originating application setting out the trinity prayers and not through an application for leave to raise new issues as indicated on the face of the motion paper or as strangely canvassed in the Appellants/Applicants written address where it was urged upon us to grant leave to the Appellants/Applicants to amend the Notice and grounds of appeal by raising additional and or fresh grounds of appeal.

?It is to be noted that there is yet no leave granted in respect of the interlocutory appeal and nothing can be amended from same. The law governing the filing of an initial appeal and an amended appeal has been held by the Supreme Court in SOUTH ATLANTIC PETROLEUM LIMITED VS THE MINISTER

OF PETROLEUM RESOURCES (2013) LPELR 21892 (SC) to be different. The Apex Court per MUHAMMAD JSC stated:-
?This Court, see Tsokwa Oil Marketing CO VS B.O.N LTD (2002) 11 NWLR (Pt.777) 163, has dwelt on the difference between the Law Governing the filing of an initial appeal and an amended appeal. The principle remains that the two are not the same. Where as the filing of original appeal from decisions of the Court of appeal to this Court is governed by Section 233 of the 1999 Constitution as amended and Section 27 of the Supreme Court Act, the filing of additional grounds of appeal, whether or not the grounds require leave of Court is governed by the Supreme Court Rules by virtue of the combined operation of Subsection 6 of Section 233 and Section 236 of the 1999 Constitution. It must be restated that the principles of law as to when to file either and the effect of non-compliance in each case differ. While non-compliance with the Constitution and the Act is fatal, non-compliance with Rules of Court has been adjudged a mere irregularity see SARAKATU VS NHDS LTD (1981) 4 SC 26 and OGBOMOR VS STATE (1985) 1 NWLR (Pt.2) 223.?

It follows

therefore that in the instant case, the leave to appeal envisage is by an originating application to be made pursuant to the provisions of Section 242(1) of the 1999 Constitution (as amended) and Section 14 of the Court of Appeal Act 2004 which deals with appeals from interlocutory orders and decisions.

Now as pointed out by this Court in BRAWAL SHIPPING NIGERIA LTD VS OMETRACO INTERNATIONAL LTD (SUPRA) whilst a party is allowed to incorporate and argue grounds of appeal emanating from a final decision with grounds of appeal against an interlocutory decision, this permission is subject to the necessary leave required to be obtained before an appeal against an interlocutory decision is sought and obtained.
My learned brother Regina Obiageli Nwudo JCA (of blessed memory) stated further in the lead Ruling.
?The deponent in paragraphs 9 and 10 of the affidavit averred that the ground of appeal based on the Ruling which he seeks leave to appeal is contained in the notice of appeal on the final decision of the trial Court. He cannot rely on that same notice of appeal because the present application is an Originating application not interlocutory

in the main appeal.?

I agree with learned counsels for the Respondents in their submissions that this application cannot be granted in its present form. In saying this, I am not unmindful of the feeble attempt made in the written address at para 2.2 of page 2 seeking for leave to amend the reliefs on the Appellants/Applicants motion by adding one more relief to wit:-
?d(ii) In any event, an order granting the Appellants/Applicants leave to appeal against the decision of the Federal High Court, Lagos per I.N. Buba, Judge on 10/12/14 joining the 2nd Respondent as a party as a party to the proceedings before him as already reflected in grounds 6 & 17 of the notice of appeal (Exhibit FA1).?

Now even with that the Application is in my view still defective as it fails to supply sufficient particulars necessary to activate the jurisdiction of this Court in exercising its discretion. The Ruling or order of the lower Court on the issue of joinder is not exhibited with the application and more importantly the Suit No of the case and names of the parties are not disclosed on the face of the motion paper and the proposed relief sought to

be added.

As rightly pointed out by the Respondents, this application is incompetent and having found same to be incompetent the proper order to be made is one striking it out See: JAMARI & ORS VS YAGA (2012) LPELR 15188 (CA). The application is accordingly hereby struck out for being incompetent.

Parties to bear their respective costs.

MOHAMMED LAWAL GARBA, J.C.A.: I agree completely with the views expressed and the conclusion in the lead Ruling by my learned brother Jamilu Yammama Tukur, JCA, that the present application is utterly misconceived and incompetent.

It is struck out by me too, in consequence.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I was privilege to read in advance, the draft of the Ruling just delivered by my learned brother TUKUR, JCA.

?His lordship has comprehensively and completely dealt with the relevant issue for the determination herein. The sole question raised thereby have been meticulously considered and determined in the said Ruling. In the result, I also hold that the Appellants? Application is incompetent and is hereby struck

out.

Appearances

Ayo Olowu Femi with him, Temitayo GajaFor Appellant

AND

Emeka Akabogu with him, Medidem Miss and Enare Erim for 1st Respondent.

Chief O.E Nwagbara with him, U.R Iwuala for 2nd RespondentFor Respondent