Ege Shipping & Trading Industry Inco. & Ors. V. Tigris International Corporation (1999)
LAWGLOBAL HUB Lead Judgment Report
E. OGUNDARE, J.S.C.
By a writ of summons issued in the Federal High Court holden at Lagos on 24/2/95 the plaintiff who is now respondent before us in this appeal sued the four defendants herein (who are now appellants) jointly and/or severally claiming:
“the sum of US$200,000.00 (Two Hundred Thousand US Dollars) being for damages for breaches of contract arising out of a Time-Charter Party Agreement dated at London, the 5th day of July 1994 for the use and/or hire of the 1st to 3rd defendants’ vessel, the MV “S. Araz”, sued as 4th defendant in these proceedings, which said sum the defendants or any of them have failed and/or refused to pay despite repeated demands. AND THE PLAINTIFF claims the said sum of US$200,000.00 (Two Hundred Thousand US Dollars) and the additional relief herein together with interest and costs’”
The respondent filed a statement of claims which with leave of court, was subsequently amended. Rather than file a statement of defence in answer to the case made out by the plaintiff in its amended statement of claim, the defendants brought an application before the trial court seeking the following orders:
“1. set aside the writ of summon and/or statement of claim.
- set aside and/or discharge unconditionally the interim order made on the 28th February 1995 for the arrest and detention of the 4th defendant/applicant, the M.V. “S. Araz”, presently lying at berth 4 Apapa Port, Apapa, Lagos.
- Strike out the name of the 3rd defendant as a party to this suit”
Upon the grounds as set out on the motion paper –
“a. There is no cause of action against the 4th defendant/applicant because the 1st and 2nd defendants whom the plaintiffs have allegedly a claim against are neither the beneficial owners as respect all the shares in the vessel nor are they the Chatterers of the vessel under a charter by demise.
b. The order of arrest of the 4th defendant/applicant made on the 28 February, 1995 is a nullity.
c. The plaintiffs have not made out any claim against the 3rd defendant either in their Writ of Summons or, amended statement of claim.
d. The defendants did not breach clauses 1, 8, 21, 28 or any other terms and conditions of the charter party.
e. The plaintiffs claim against the defendants for accrued port charges and dues is not sustainable in law in view of the provisions of Order VIII r. 2(1) of the Admiralty Jurisdiction Procedure Rules 1993.
f. The plaintiffs are estopped from claiming, as contained in their amended statement of claim, the sum of N50,000,000 (fifty million Naira) as indemnity in respect of suit No. FHC/L/CS/233/95, between Isiyaku Rabiu & Sons Ltd. v. Ben Commodities of London and Tigris International Corporation (Time Charterers/Disponent Owners of MA, “S Araz” (in view of the Notice of Discontinuance and terms of settlement dated and filed on the 23 march, 1995 by the plaintiffs in that suit and the Order of Court dated the 29 March, 1995 striking out the suit.
g. The proceedings are an abuse of the process of court.
h. The arrest order was obtained on misrepresentation of facts.
i. The plaintiffs have not used the process of the court bona fide.
j. The machinery of the court has been used by the plaintiffs as a means of vexation and oppression in the process of litigation.
The application was heard by Olomojobi J. who in a reserved ruling found for the defendants and adjudged as follows.
“1. It is hereby ordered that the writ of summons and the statement of claim in this suit be and the same is hereby set aside.
- It is further ordered that the vessel M.V. “S. Araz” presently lying at berth 4 Apapa Port, Apapa, Lagos which was arrested and detained by the order of this court made on the 28th February, 1995 is hereby released from arrest and detention without any condition whatsoever.
- It is also ordered that the name of the 3rd defendant that is Owners of M.V. “S Araz” be and the same is hereby struck out from this suit.”
The plaintiff was unhappy with this decision and appealed to the Court of Appeal. The latter Court allowed the appeal and struck out the defendants application filed in the trial court and ordered that the defendants should file their statement of defence to enable the trial court to determine the suit on the merits. It is against that judgment that the defendants have now appealed to this court upon three grounds of appeal.
Parties filed and exchanged their respective briefs of arguments. Before I proceed with this appeal, I need comment on the briefs filed by the parties. Order 6 rule 5(1)(a) provides:
“The appellant shall within ten weeks of the receipt of the Record of Appeal referred to in Order 7 file in the court and serve on the respondent a written brief being a succinct statement of his argument in the appeal. “(Italics is mine for emphasis)
“Succinct” by the ordinary dictionary meaning is “concise”, “brief”, thus what the rule provides for is a concise brief statement of argument and not a treatise. The appellants’ brief in this rather simple matter runs to 121 pages. That of the respondent runs to 57 pages. These can hardly be described as briefs. They are essentially treatise, particularly that of the appellant. Neither of the briefs can be said to comply strictly with the rule of this court.
This court has on a number of occasions, in recent years, commented on what a brief should look like. In Engineering Enterprises v. Attorney-General of Kaduna State (1987) 2 NWLR (Pt.57) 381, this court per Eso and Oputa J.S.C., laid down the requirements of a good brief and in Universal Vulcanizing (Nig.) Ltd. v. I.U.T.T.C. & others (1992) 9 NWLR (Pt. 266) 388, 397, Omo J.S.C. had cause to comment on an unduly long brief. He observed.
:”The brief of the plaintiff/appellant prepared and filed by Dr. E.A. Ajayi S.A.N. calls for some comment. It is a 70 page booklet which is more of a treatise than a brief. Commendable as it is for the learning it exudes it does not conform to the definition of a brief of argument in Order 6 Rule 5, as ‘being a succinct statement of his argument in the appeal’. The document filed by Dr. Ajayi is most certainly not succinct. It is lengthy, otiose and not surprising, repetitive. The court will continue to insist that counsel should comply with the rules of court. It is to be hoped that this court will not be inflicted in the future with the tiresome task of wading through such a document.”
The above comments apply with stronger force of the purported briefs filed in this case, particularly that of the appellant.
Only very recently this court once again had cause to revisit the question of long unwieldy briefs. In Shell Petroleum Dev. Company (Nig.) Ltd. v. Fed. Board of Inland Revenue (1996) 8 NWLR (Pt. 466) 256, 274, Uwais CJN commenting on the briefs of the parties in that case observed as follows:
“It is well settled, as a rule of practice, that a well written brief of argument should be brief and concise, containing concise statement of the facts of the case which are material to the consideration of the questions presented for determination by the court. It should also contain direct, concise and succinct settlement of the argument in the appeal. But what are we confronted with in this appeal The appellant’s brief consists of 70 pages while the respondent’s brief is made up of 435 pages (including the preliminaries). Surely these are, with respect, far from the ideal. Rather than assist the court to easily follow the argument in support of the questions for determination, they helped in making the arguments complex.”
Belgore, J.S.C. in his own observation at page 297 said:
“The Hon. Chief Justice, in the lead judgment adverted to ‘unbrief briefs’. I agree that but for the importance of this appeal as a revenue matter of the government on strategic petroleum tax, the respondent’s brief of argument is not a brief for the purposes of our Rules. I would have discountenanced it; but I take it for what it is worth as some aide memoire. If the energy exerted in preparing it had been devoted to the study of the issues this court would have been greatly helped. I must confess that I find not much use in the brief for all its length of over five hundred pages.”
In my own judgment in the case I reviewed at length the requirements of a good brief and concluded thus at page 300:
“The respondent’s brief in the appeal on hand, prepared and filed by U.A. Inyang Esqr can hardly be described as a ‘succinct statement of his argument in the appeal’ – See Order 6 rule 5(1)(a) of the Supreme Court Rules, 1985. It is a book on diverse subjects full of sentiments rather than hard legal arguments and containing intemperate language against opposing counsel. I advise learned counsel to look into the Briefs filed in the number of cases listed by Eso J.S.C. in Engineering Enterprises and to which list is to be added Fawehinmi v. Akilu (No.1) (1987) 4 NWLR (Pt. 67) 797. I am sure he will learn a lot from these cases on the art of brief writing. The appellant’s brief of argument is not without its own drawback, though to a lesser degree when compared to that of the respondent. Its own draw back is more in its length – 70 pages, it could be shorter.”
Bearing in mind the nature of the application brought by the defendants at the Federal High Court and the issues raised by the application. I cannot say that the appellant’s brief in this appeal prepared by Eyimofe Atake Esqr., addressed the primary issues one would expect the defendants would advance in this appeal. The issues canvassed in that brief are what one would expect to see canvassed after a full trial of the issues arising between the parties based on the plaintiff’s case and the defendant’s reply.
The respondent’s brief appeared by P.O. Atoyebi Esqr. Though in part touched on the question raised by the application of the defendants in the trial court, went off tangent in replying to issues raised in the appellant’s brief. The respondent’s brief, therefore, though less offensive than the appellants’ brief is equally not a brief as envisaged in the rules of court. The appellants’ brief, with respect, is merely an academic exercise not related to the real issues of the day.
I think this court has said enough on the effect of a purported brief that does not qualify as a brief within the contemplation of the rules of court. One would expect counsel by now, to have mastered the art of brief writing that will not inflict on the court a tiresome task. And unless there is compliance with the rules of court in this respect, delay in the administration of justice cannot he ruled out.
So much on the written briefs of arguments of the parties in this case.
In the appellants’ brief, three issues are set down as calling for determination in this appeal. These are:
“(i) Can the admiralty jurisdiction of the Federal High Court be invoked in this particular case having regard to the provision in section 5(4 )(a) of the Admiralty Jurisdiction Decree 1991, and the Decisions by the Court of Appeal in the cases of MV” Araz” v. Scheep (1996) 5 NWLR (Pt. 447), 204, and MV”, Araz” v. LPG Shipping SA (1996) 6 NWLR (Pt. 457), 720 In other words, are the persons whom the plaintiffs/respondents say they have a contract with the beneficial Owners with respects to all the shares in the Motor Vessel “S. Araz” or are they charterers of the vessel under a charter by demise
(ii) Can an action in rem and one in personam be commenced by the same initiating process
(iii) Does the provision in section 5(4) of the Admiralty Jurisdiction Decree 1991 raise a jurisdictional or procedural issue or is the provision in the manner of a demurrer; and was the application dated the 25th March 1996 a demurrer application as was decided by the learned Justices of the Court of Appeal
The three issues are adopted in the respondent’s brief.
Reading through the proceedings in the Court of trial I think this otherwise simple case has been complicated by the trend of arguments of learned counsel for the defendants in arguing the application. Although learned counsel for the plaintiff in his own address before the trial court, tried to get the court to focus its mind on the real issue in controversy in the application, the learned trial Judge, with respect to her, fell into the error she was led into by learned counsel for the defendants/applicants. This led to pronouncements on issues that did not arise for determination. In her ruling on the application the learned trial Judge had this to say and, quite rightly in my respectful view:
“Two issues come for determination in this ruling. They are as follows:-
- What is the nature of the defendants’ application
- Whether there is any cause of action by the plaintiff against the defendants/applicants.”
Had she confined herself to the consideration of those two issues she would not need to go into, and make pronouncements on, issues unrelated to those two issues such as the question of jurisdiction and ownership of the vessel “S. Araz”.
The court below, that is, the Court of Appeal faired only a little better. It focused its mind, to a large extent, on the nature of the defendant’s application before the trial court – and that was the main issue: but it, too, allowed itself to be led into pronouncing on other issues unconnected with the application such as the interpretation of section 5 of the Admiralty Jurisdiction Act 1991, the nature of an action in rem and the ownership of the vessel “S. Araz’ on which it made copious pronouncements. It is the challenge to the pronouncements made on these issues that led the defendants to formulate their issues (1) and (2) above. In so far as these two issues are, therefore, unrelated to the determination of the appeal arising out of the application brought by the defendants before the trial High Court I will refrain from considering them in this appeal. The same consideration applies to part of issue (3) which raises the issue of section 5(4) of the Admiralty Jurisdiction Act 1991 as to whether or not that section raises a jurisdictional or procedural issue.
The question that is to be determined in this appeal, in my respectful view, is:
“Was the application dated the 25 March, 1996 a demurrer application as was decided by the learned Justices of the Court of Appeal
In arguing this question in his appellant’s brief Dr. Atake, SAN, with respect to him, fell into the same error he fell into in the Federal High Court when he directed his arguments to issues of jurisdiction. It is his argument that the defendants’ application was brought under section 5(4) (a) of the Admiralty Jurisdiction Act, 1991. Submitting finally learned Senior Advocate argued:
“In answer to the question posed therefore, your Lordships are urged to hold that, the provision in section 5(4) of the Admiralty Jurisdiction Decree 1991 raises a jurisdictional issue. It does not raise a procedural issue and is certainly not in the manner of a demurrer. That being so, the application, dated 25 March, 1995 brought by the defendants/appellants is not a demurrer application. It was clearly an application challenging the jurisdiction of the court. (Italics is mine)
I may here mention that this was also his line of argument at the oral hearing of the appeal notwithstanding efforts made by us to let him focus his mind on what we consider to be the correct question arising in the appeal. In the course of his oral argument, learned Senior Advocate’s attention was drawn to paragraph 2 of the amended Statement of claim which reads:
“2. The 1st and 2nd defendants herein are the beneficial Owners and/or Head Owners/Charterers of the MV “S. Araz”, the 4th defendants herein. The 3rd defendant is the Owner of the 4th defendant Vessel chartered to the plaintiffs herein and were sued as such in view of the uncertainty of the identity of the true Owners of the Vessel.”
Learned Senior Advocate replied that he was contesting the correctness of the averments in that paragraph. He, however, conceded that if those averments were correct, there would be no need for the defendants’ application brought before the Federal High Court.
For the plaintiff, Mr. Atoyebi both in his brief and in oral argument submitted that the defendants’ application did not challenge the jurisdiction of the Federal High Court but sought to defeat the action in limine. This, learned counsel submitted the defendants could not do without filing a defence and leading evidence. He too replied in his brief of arguments of the defendants on the construction or interpretation of section 5(4) of the Admiralty Jurisdiction Act.
I have already set out earlier in this judgment the orders sought by the defendants in the Federal High Court and the grounds relied on. I must observe that none of the grounds questions the jurisdiction of the court. I shall now consider the grounds.
In ground (a) the defendants contend that a cause of action is not disclosed against the 4th defendant on the premise that the 1st and 2nd defendants are neither the beneficial owners of the ship nor its charterers under a charter by demise. This premise challenges the correctness of the averments in paragraph 2 of the amended statement of claim. Surely where a defendant is disputing an averment of fact made in statement of claim, the proper way to do so is not by filing an application to have the plaintiffs’ action dismissed in limine but to file a defence traversing that averment of fact and establishing evidence at the trial on which the trial court will make a finding of fact either for or against the plaintiff on such averment of fact.
Ground (b) challenges the validity of the order of arrest of the 4th defendant made on the 28th of February 1995 on the premise that the order was a nullity. I do not think any effort was ever made to show the order made by the Federal High Court on 28/2/95 for the arrest of the 4th defendant was a nullity. Of course, defendants would be right to come by way of an application to set aside the order if it was a nullity. Surprisingly, however, there was no finding by the learned trial Judge to this effect.
On ground (c), what is being challenged is that a case is not made out against the 3rd defendant either in the Writ of Summons or amended statement of claim. If this were so, the defendants would be in order to come by way of an application to have the case against the 3rd defendant dismissed but in the light of paragraph 2 of the amended statement of claim, I do not see how they could have succeeded. In the copious affidavit evidence placed before the trial court, effort was directed to showing the contrary of the averments in the pleading of the plaintiff. In my respectful view the way to do this is by traversing, in a statement of defence, such averments and not to come by way of application to dismiss in limine.
Ground (d) denies a breach by the defendants of some clauses of the charter party pleaded by the plaintiff. I do not see how a court would dismiss a plaintiff’s case on such ground without the defendants filing a statement of defence and leading evidence in support.
I would think that grounds (e), (f), (g), (i) and (j) are matters of defence to be set up in a statement of defence. It is for the trial court after hearing evidence on both sides to make findings of fact for or against such defences.
Ground (h) cannot be a ground for claiming that the order of arrest made is a nullity. Evidence will need to be led on both sides and findings of fact made after a full blown trial to justify a court in concluding that the arrest order was made as a result of misrepresentation of facts.
I have considered all the grounds upon which the defendants sought in the Federal High Court to have plaintiff’s action dismissed in limine; none of them, as I observe earlier in this judgment, questions the jurisdiction of the court to hear and determine the action. It is, therefore, incorrect to say, as contended by learned Senior Advocate for the defendants, that the application is in the nature of a challenge to the jurisdiction of the court. In my respectful view, the court below was right when it held that the application was in the nature of the demurrer. The use by the defendants of affidavit evidence to counter or transverse matters of fact pleaded by the plaintiff is clearly not a correct practice or procedure. In an application of the nature brought by the defendants, it must be presumed that all the facts pleaded by the plaintiff are correct. Where the defendants dispute any of such facts they must file statement of defence and lead evidence at the subsequent trial in support of their case.
I agree entirely with the court below that the learned trial Judge was in serious error in granting the application and making the orders made by her. I have no hesitation whatsoever in upholding the conclusion of the court below and in holding that this appeal is completely lacking in substance.
Before I end this judgment I like to extend to the learned counsel for the defendants a short piece of advice. No doubt, his brief is commendable for the learning he showed but the arguments contained therein, with respect to learned Senior Advocate, are completely misplaced. He can do better by focusing on issues relevant for determination and advancing arguments in his brief in a succinct manner. It is only then that he can be of tremendous assistance to the court. I am also disturbed by a show of intellectual arrogance displayed by him at the oral hearing of the appeal. A great restraint had to be shown by us. I think counsel ought to weigh the language employed by him. A word is enough for the wise.
Finally, I dismiss this appeal and affirm the orders made by the Court of Appeal striking out the defendants’ application dated 25th March, 1996 and directing the defendants to file their statement of defence in the court of trial which is now to be done within 30 days from the date thereof. I award N10,000.00 costs of this appeal to the plaintiff/respondent.
SC.41/1999
