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Rockshell Int. Ltd v. Best Quality Services Ltd

ROCKSHELL INTERNATIONAL LTD

V

BEST QUALITY SERVICES LTD

BISI ODUNNAIYA (MRS.)

COURT OF APPEAL

( LAGOS DIVISION )

CLARA BATA OGUNBIYI JCA ( Presided )

RAPHAEL CHIKWE AGBO JCA

REGINA OBIAGELI NWODO JCA ( Read the Lead Judgment )

CA/L/512/2006

THURSDAY, 14 MAY 2009

ACTION - Cause of action - Definition of

ACTION - Cause of action - Determinant of

ACTION - Cause of action - When a Judge is making a finding as to the existence of before evidence is led on a matter - Restriction thereon

APPEAL - Brief of argument - Inelegant brief of argument - Attitude of appellate courts to

APPEAL - Grounds of appeal - Raising more than one issue for determination from - Impropriety of

APPEAL - Issues for determination - Proliferation of - Instance when the appellate courts will overlook the defect and consider the issues as raised

APPEAL - Issue for determination raised suo motu by court - Necessity for court to call on parties to address it on it

COST - Award of - Principles guiding courts in respect of

COST - Award of - Purpose of

JUDGMENT AND ORDERS - Costs - Award of - Principles guiding the courts therein

JUDGMENT AND ORDERS - Costs - Award of - Purpose of

PLEADINGS - Statement of claim - Propriety of containing more than one cause of action

PRACTICE AND PROCEDURE - Cause of action - When a Judge is making a finding as to the existence of before evidence is led on a matter - Restriction thereon

PRACTICE AND PROCEDURE - Costs - Award of - Principles guiding the courts therein

PRACTICE AND PROCEDURE - Demurrer proceedings - Onus on a defendant to raise the issue of jurisdiction in limine

PRACTICE AND PROCEDURE - Demurrer proceedings - What it entails

PRACTICE AND PROCEDURE - Issue of proper parties and cause of action - Whether challenging by way of motion on notice is proper as in the instant case

PRACTICE AND PROCEDURE - Pre-trial conference - On whom duty lies to initiate - Effect if both parties fail to carry out the duty in Order 25, rules 1(2)(a)(3)(f) of the High Court of Lagos State

( Civil Procedure) Rules

WORDS AND PHRASES - ‘Cause of action’ - Definition of

Issues:

1.             Whether the defendants having not raised or contained the issue of identity and/or description of the concession in their motion on notice of 14 June 2005, it was proper for the lower court to on its own raise the issue and strike out the writ of summons and the statement of claim on the ground that the suit discloses no cause of action against the defendant, the claimant having described the premises subject of the concession as the (New) VIP Lounge of the General Aviation Terminal (GAT) of the Murtala Mohammed International Airport, Ikeja, Lagos, whereas her concession agreement dealt with the VIP Lounge of the General Aviation Terminal (GAT), Murtala Mohammed International Airport, Ikeja, Lagos.

2.             Whether the lower court was entitled to hold that the appellant’s writ of summons and statement of claim did not disclose a reasonable cause of action when the same court had earlier in its ruling of 8 June 2005 (not appealed against) on a selfsame or similar application by the respondents held that the appellant’s action was one in trespass.

3.             Whether the lower court interpreted correctly the provisions of Orders 22 and 25 of the High Court of Lagos State (Civil Procedure) Rules, 2004 when it held that the said provisions had no application considering the prayers, especially prayers 1  and 2 as contained in the defendants’ motion on notice of  14 June 2005.

Facts:

The appellant instituted an action at the High Court of Lagos State, Ikeja Division wherein it sought an order ejecting the defendants from the ( New) VIP Lounge of the General Aviation Terminal Muritala Mohammed International Airport, Ikeja, Lagos State (hereinafter referred to as ‘the premises’) being the subject of a concession agreement dated 29 March 2004  between the Federal Airports Authority and the claimant; order of injunction restraining the defendants from carrying on activities of restaurant, canteens, rest areas, entertainment services etc in the premises and the sum of N5,000,000.00 (five million naira) as general damages against the respondents. It also filed a motion ex parte seeking an order restraining the respondents from taking further steps in facilitating and/or carrying on the activities sought to be restrained. The court granted the ex parte motion. The respondents filed a motion on notice seeking inter alia, an order striking out the suit on grounds that, proper parties were not before the court and that the case disclosed no reasonable cause of action against them. The appellant filed a notice of preliminary objection against the motion. The trial Judge in its ruling dismissed the preliminary objection against the motion.

The trial Judge dismissed the substantive case against the appellants.Dissatisfied, the appellant appealed to the Court of Appeal.

The Court of Appeal found inter alia, that the trial Judge engaged on a voyage of discovery outside the pleadings and exhibits by the parties.