Federal High Court Declines Jurisdiction in Global Resources Management Limited & LADOL’s Claim Against Nigerian Ports Authority and Ors concerning its Tarkwa Bay Land.
Global Resources Management Limited & Anor (the “Plaintiffs”)., through their counsel, Mr. Uwa Etigwe, SAN, served a pre-action notice on 2 December 2019 on Nigerian Ports Authority (NPA), notifying NPA of their intention to commence a suit against it. On the same 2 December 2019 that the Plaintiffs served the pre-action notice on NPA, without waiting for the expiry of the statutory 30 days before commencing their action, they filed Suit No. FHC/L/CS/2217 against NPA and Ors., before Oweibo J. of the Federal High Court, Lagos.
Whilst the first Suit No. FHC/L/CS/2217/2019 was pending, the Plaintiffs on 27 January 2020, filed a second action in Suit No. FHC/L/CS/95/2020, before Prof. Obiozor J., of the same Court, seeking similar reliefs as in the first suit, against the same set of Defendants in the first suit. After NPA had through its counsel, Mr Mike Igbokwe, SAN, leading Mr Allen Ikumawoyi, both of Mike Igbokwe (SAN) & Co, entered a conditional appearance, filed and served a Notice of Preliminary Objection to the suit, the Plaintiffs on 30 January 2020 filed a notice of discontinuance of the first suit, Suit No. FHC/L/CS/2217/2019, pursuant to which the said first suit was struck out on 4 February 2020.
Again, on 3 February 2020, the Plaintiffs discontinued the second suit, Suit No. FHC/L/CS/95/2020 and filed on the same day, 3 February 2020, a third suit, Suit No. FHC/L/CS/151/2020, before the same Prof. Obiozor J. Meanwhile, the Plaintiffs did not serve the notice of discontinuance of the 2nd suit on NPA, pursuant to which the second suit was struck out by the Honourable Court on 10 February 2020.
The plaintiffs’ case was based on a lease of land located at Tarkwa Bay, near Lighthouse Beach, Lagos, measuring about 114.542 hectares (the “Land”), granted to Global Resources by NPA. The Plaintiffs had claimed inter alia that (1) Global Resources had a valid and subsisting lease over the Land; (2) Global Resources did not breach the lease agreement between it and NPA by executing a sublease over a part of the Land with SHI-MCI FZE Enterprise, (the 5th Defendant); (3) a declaration that the revocation by NPA of its lease over the Land was null and void.
After being served the Originating Summons (OS), through its counsel, Mr Mike Igbokwe, SAN, NPA filed a Counter-affidavit to the OS and a counter-claim against Global Resources, supported with Written Address to the OS, together with a Notice of Preliminary Objection (NOPO), challenging the jurisdiction of the Honourable Court to hear and determine the case. NPA (hereafter called the “Applicant”) predicated its NOPO on the following grounds, that:
(1) the Plaintiffs did not comply with Sections 92(1) and 93 of the NPA Act, LFN, 2004 (“NPA Act”), which require them to serve on the Applicant’s Managing Director (MD), a pre-action notice of one month before commencing their suit after its expiry. The Applicant had contended that the pre-action notice served on its Assistant General Manager, Legal (AGM Legal), instead of its MD as mandated by its Act was bad; that the pre-action notice was not addressed to any of its staff; and the pre-action notice was in respect of, and to notify the Applicant about their intention to bring the first suit that they filed on 2 December 2019, which they had withdrawn. The Applicant then urged the Court to hold that the pre-action notice was defective. It relied on the case of Ntiero v. Nigerian Ports Authority  10 NWLR (Pt. 1094) 129.
(2) the Respondents’ case bothered on simple contract that did not fall under the jurisdiction of the Federal High Court, as stated under Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), and, based on Section 39(1) of the Land Use Act, 2004, the Federal High Court (FHC) did not have jurisdiction to entertain and determine the Respondents’ dispute bothering on land matters. It cited the case of Onuorah v K.P.R.C  6 NWLR (Pt. 921) 393.
(3) the suit constituted an abuse of the processes of the Court. The Applicant argued this point on three legs, to wit: (a) since the Respondents did not serve their notice of discontinuance of the second suit (Suit No. FHC/L/CS/95/2020) on it before or after commencing the third suit (Suit No. FHC/L/CS/151/2020), it meant that the Plaintiffs had two cases pending at the same time against the same parties and on the same subject matter; (b) the option of a counter-claim, which was the appropriate action to take, was open to the Plaintiffs in an earlier action (Suit No. LD/6587GCMW/2019) filed by the 2nd Defendant (Samsung Heavy Industries Nigeria Ltd) at the High Court of Lagos State, Lagos, but they did not take that course; instead, they engaged in a forum shopping adventure in an irritating and vexatious manner to the Applicant. For this point the Applicant relied on the case of Lokpoibiri v Ogola  3 NWLR (Pt 1499) 328; and (c) the filing of the suit prematurely-without complying with Sections 92(1) & 93 of the NPA Act- and in Federal High Court which lacked jurisdiction to hear and determine the reliefs on simple contract of leases of land and land matters, constituted an abuse of the processes of the Honourable Court. The case of Ntuks v NPA  13 NWLR (Pt. 1051) 392 was relied on.
In their Written Address (WA) to the Applicant’s NOPO, the Respondents argued that by the combined provisions of Section 9 of the NPA Act, which gives the Applicant powers to act through its officers or agents and Section 92(1) of the NPA Act, which provides for service of a pre-action notice on the Applicant, any staff of the Applicant including its AGM Legal, on whom the pre-action notice was served, was a competent officer to receive such notice.
The Respondents further argued that because of the use of the word ‘may,’ rather than ‘shall’, in Section 93 of the NPA Act, service of a pre-action notice on the Applicant’s MD was only permissive and not mandatory. It relied on the cases of Okeke v AG Anambra State  1 NWLR (Pt. 215) 86 and Orakul Resources Ltd & Anor v. Nigerian Communications Commissions & Ors. (2007) LPELR-8913. The Respondents submitted that it was not the law that a pre-action notice must be filed for each action contemplated by an intending plaintiff; that the law only stipulated that one (1) month elapses after service of such notice before any action could be filed against the Applicant.
On the second ground of the NOPO, the Respondents argued that their suit was not in respect of a simple contract of lease, but on the exercise of the administrative powers of the Applicant, a Federal agency, in revoking its leasehold. They argued that their case primarily centered around the exercise of the powers conferred on the Applicant by Sections 8(j) and 25(1) of the NPA Act. They relied heavily on the case of Adulraheem v Oduleye  8 NWLR (Pt. 1674) 269.
They further submitted that Sections 39 and 41 of the Lands Use Act apply only to lands the subject of statutory right of occupancy granted by a Governor or deemed to be granted by him. They referred the Court to the Third Schedule to the NPA Act, wherein the land in dispute was designated as Federal land for future port development. They held the view that Section 49(1) of the Lands Use Act removed from the purview of the Lands Use Act, Federal lands held by the Federal Government of Nigeria or any of its agencies. They submitted that to the extent that the land in dispute was a Federal land and not one granted or deemed granted by a Governor, the provisions of Sections 39 and 41 of the Land Use Act were not applicable.
In respect of abuse of Court processes, they submitted that there was no multiplicity of actions between them, NPA and the other parties in the suit, which is on the same subject matter and issues. They contended that they could not have filed a counter-claim in Suit No. LD/6587GCMW/2019 because, apart from this suit and that one not being the same, the 2nd Plaintiff, 3rd, 4th and 5th Defendants in this suit were not parties in that suit. They relied on the cases of Society Bic SA v. Charzin Ind Ltd  4 NWLR (Pt. 1398) 497 and Ogooejeofo v Ogoejeofo  3 NWLR (Pt. 996) 205. They concluded that their first and second suits having been discontinued and struck out, the third suit did not constitute an abuse of court processes. They relied on the case of NV. Scheep v MV S.Araz  15 NWLR (Pt. 691) 622.
In its Reply on Points of Law, the Applicant submitted that Section 93 of the NPA Act was not discretionary, as the word ‘may’ as used in the section was a modal verb expressing the possibility of serving a pre-action notice, but had nothing to do with the person to be served. The Applicant argued that in Section 93(a&b) of the NPA Act, the legislature emphasized service of a pre-action notice on the Applicant’s MD; that if the legislature had wanted a pre-action notice to be served on any officer of the Applicant other than its MD, it would have said so, but specifically mentioned the Applicant’s MD. The Applicant submitted that in view of the express mention of its MD as the person to be served, service on its AGM Legal ran fowl of the Act.
Furthermore, the Applicant submitted that to the extent that the reliefs endorsed on the pre-action notice on which the first action in Suit No. FHC/L/CS/2217/2019 was predicated were different from the reliefs sought in the third action in Suit No FHC/L/CS/151/2020, the pre-action notice became spent with the first suit and was incompetent to sustain the third suit.
Besides, the Applicant argued that even though the Respondents had decorated four out of the eleven questions in their OS with the phrase “whether having regards to the power conferred on the 1st Defendant,” the Honourable Court needed to scrutinize the questions, reliefs and affidavit in support of the OS to see that the case was truly founded on a simple contract of lease of land, which it had no jurisdiction to entertain.
The Applicant distinguished the case of Abudulraheem v Oduleye (supra) from the Respondents’ case. The Applicant submitted that the apex Court held the view that Section 251(1r) was invoked in that case only because the Appellant’s act of evicting the Respondents from their official quarters arose from the administrative decision to terminate their appointments, which was not the case herein. The Applicant stated that based on the case of Oladapo v. N.C.S.B (2009) LPELR-8278, for the Respondents’ case to come under Section 251(1r) of the Constitution, it must be shown that its action was concerned with, or relating to the effectuation of its orders, plans or policies, which was not so in this case.
On the Respondents’ response on abuse of Court processes, the Applicant replied that parties to multiple suits must not be the same; that an addition or subtraction from parties in multiple suits does not make the parties different, so long as the same parties in the suits remain parties along with the addition of new or other parties or non-inclusion of other parties in the different suits.
The 2nd, 4th and 5th Defendants also filed preliminary objections; the grounds of the 2nd and 5th Defendants’ objection being similar to the Applicant’s. While the 2nd and 5th Defendants were represented by Mr E.O. Sofunde, SAN, the 3rd and 4th Defendants were represented by Mr Gboyega Oyewole, SAN and Mr J.N. Egwuonwu, SAN, respectively.
On 4 and 8 December 2020, his Lordship heard arguments on the said respective preliminary objections and the substantive OS. After adopting their respective processes, the parties through the counsel made copious oral legal submissions to explain and buttress their positions, citing additional authorities in Court to assist the Honourable Court in determining the issues raised one way or the other.
On 4 February 2021, the Honourable Court delivered its Ruling on the notices of preliminary objection. His Lordship started with the Applicant’s NOPO. In its Ruling, his Lordship dismissed the 1st and 3rd grounds of the NOPO. His Lordship held that the pre-action notice served on the Applicant by the Respondents was valid. His Lordship reasoned that while it was mandatory to serve the Applicant a pre-action notice before an action was commenced, a pre-action notice could be served on a director, principal officers as well as the Applicant’s MD. His Lordship agreed with the Respondents that while Section 92(1) of NPA Act makes it mandatory to serve a pre-action notice on the Applicant before an action could be commenced against it, after 30 days of service of the notice, Section 93 of NPA Act only makes the service of a pre-action notice on Applicant’s MD permissive or discretionary. Accordingly, his Lordship held that the service of the pre-action notice on the Applicant’s AGM Legal in this case was a good service.
His Lordship also stated that since the reliefs in the third suit fell within the compass of the reliefs in the pre-action notice served for the 1st suit that was discontinued, the Respondents did not have to serve a fresh pre-action notice for the third suit.
The Court also held that the Plaintiffs case did not constitute an abuse of Court process. His Lordship stated that though by Order 51 of the Federal High Court Rules, a suit stood withdrawn when a Plaintiff gives a notice of discontinuance to the Deputy Chief Registrar of the Court and the Defendant(s), the non-service of the notice of discontinuance of the second suit on the Applicant was a mere irregularity. His Lordship held that the second suit stood withdrawn immediately the Respondents filed a notice of discontinuance. The Court relied on the case of the Vessel “Saint Roland & Anor v. Osinloye (1997) LPELR-3234(SC). Relying on the case of R-Benkay Nig Ltd v Cadbury Nig. Ltd (2012) LPELR-7820(SC), the Court held that since the law gives the Respondents the option or discretion to exercise their right in different ways, it was not for the Applicant to prescribe the particular form that the Respondents should utilize. His Lordship held that there were options opened to the Respondents to tackle the scenario before them and they could not be confined to the only choice of a counter-claim in Suit No. LD/6587GCMW/2019 to ventilate their own grouse or grievance, even though at the base was the same contract or facts. His Lordship having earlier held that the pre-action notice was valid, concluded that the case was not filed prematurely and therefore did not constitute an abuse of Court processes.
However, the Court agreed with the Applicant that the dispute was one that arose from a simple contract of lease, in respect of land. The Court reviewed the questions raised, reliefs sought and the facts in the affidavit in support of the OS and stated that it was clear to it that the case had to do with the revocation of land, irrespective of the ingenious manner that the case was presented by the Plaintiffs/Respondents. The Court went further to say that the mention of the Nigerian Export Processing Zone Act and the inclusion of the Nigerian Export Processing Zone Authority in the case was a smokescreen that it could see through; that the main claims in the suit were founded on a simple contract of lease. Relying on the case of Federal University of Technology, Minna v. Odutayo  7 NWLR (1657) 151, the Court held that where a Court lacked jurisdiction over the main claim it could not entertain the ancillary claim. The Court further stated that in its view, the Respondents’ case did not raise questions bothering on any executive or administrative power or the powers of the Applicant for Federal Ports under Section 251(1) (g&r) of the 1999 Constitution (as amended).
The Court stated that for it to have jurisdiction in a matter, the dispute must orbit within the universe of Section 251(1) of the 1999 Constitution (as amended). The Court said that it searched painstakingly through Section 251(1) of the 1999 Constitution (as amended) and the Land Use Act, but failed to see any jurisdiction conferred on it in respect of land matters. The Court held that the Plaintiffs/Respondents’ argument that the land belonged to the Applicant, an agency of the Federal Government was non-sequitur. His Lordship relied on the case of Adetayo v Ademola (2010) LPELR-155(SC)and held that it did not have jurisdiction to entertain and determine the Plaintiffs/Respondents’ suit.
In respect of the preliminary objection filed by the 2nd and 5th Defendants, since the objection was similar to the Applicant’s, his Lordship adopted his Lordship’s reasoning in respect of his Lordship’s Ruling on the Applicant’s NOPO and ordered that the Ruling on the 2nd and 5th Defendants’ preliminary objection would abide by his Lordship’s Ruling on the Applicant’s preliminary objection.
The Honourable Court struck out the 4th Defendant’s preliminary objection on the ground that determining same at this preliminary stage would involve going into the substantive OS, which the Court said that the law did not permit.
On the whole, the Court declined jurisdiction to entertain and determine the Plaintiffs/Respondents’ case. His Lordship held that since his Lordship did not have jurisdiction to entertain and determine the case, his Lordship could not delve into the substantive claim and NPA’s counter-claim. Pursuant to its powers under Section 22 of the Federal High Court Act, the Honourable Court transferred the case to the High Court of Lagos State for hearing without order as to costs.