Basinco Motors Limited V. Woermann-line & Anor (2009)

LAWGLOBAL HUB Lead Judgment Report

O. ADEKEYE, J.S.C

This appeal is against the judgment of the Court of Appeal, Lagos Division delivered on the 5th day of March 2001. The appellant Basinco Motors Limited as plaintiff instituted an action before the Federal High Court, Lagos, against the Respondents, Woermann-Line and Umarco (Nigeria) PLC as 1st and 2nd defendants jointly and severally for the under mentioned claims:-

a. The sum of 38,198.35 Deustch Marks or its equivalent in Naira being the value of the plaintiff’s consignment of goods short landed by the defendants.

b. The sum of N388,116.12 being incidental expenses incurred by the plaintiff as a result of the defendant negligence and loss of profits on the goods.

The case of the plaintiff before the trial court in a nutshell was that the appellant a limited liability company engaged in the business of automobile spare parts and vehicle accessories ordered for 2 pallets and one carton of car spare parts from Terramem GMBH of Hamburg Germany. Woermann-Line a shipping company based in Hamburg Germany conveyed the items down to Nigeria on board the ship M. V. Fiona in the container LCL 1X20NOCEAU484035-1 to be delivered to the warehouse of the 2nd Respondent Umarco (Nigeria) Plc, an agent of the 1st Respondent. The particulars of the consignment are:-

1. 15 pieces of cylinder head 1150102621.
2. 15 pieces of cylinder head 1150102821
3. 100 set of ignition cable M102 Engine ZEF 466.
4. 2000 sets Gasket for Hengst filter.

A certificate of valued dated 11th day of May 1992 was issued by the shippers to the appellant. On arrival at the Apapa Port Warehouse of the 2nd Respondent a routine check of the container was conducted. It was discovered that the container landed with part of the contents missing. The Respondents acknowledged the short delivery of the consignment and accepted liability in their letter of the 4th of November 1992 to the appellant. The appellant went to court because the 1st Respondent owed it a duty of care to deliver the consignment as contained in the bill of lading Ref.No.W013 of 21st of May 1992. When it became apparent at the trial court that the appellant was not a party to the contract of carriage, the Respondents filed a motion on notice dated the 30th of May 1994 pursuant to Order 27 Rules 1, 2 and 3 of the Federal High Court Civil Procedure Rules, 1976, section 375(1) of the Merchant Shipping Act Cap 224, Laws of the Federation 1990 and under the inherent jurisdiction of the court seeking the following relieves: –

1. “An order dismissing/striking out this suit on the ground that the plaintiff is not a proper party, not having been named either as consignee or endorsee on the bill of lading and or if so named, having, in turn, endorsed the said Bill of Lading to other parties, has no locus standi to institute and maintain the suit.
2. An order striking out the name of the 2nd defendant from the substantive suit on the ground that the 2nd defendant is an agent of a disclosed principal”.

The presiding Judge took arguments of counsel in respect of the application. In a considered ruling delivered on the 26th of July 1996 the trial court dismissed the suit in limine for lack of locus standi by the plaintiff/appellant. Dissatisfied with the ruling the appellant filed a Notice of Appeal to the Court of Appeal urging the court to reverse the decision of the trial court. On the 15th of March 2001 the Court of Appeal dismissed the appeal and affirmed the judgment of the trial court. Aggrieved by the decision of the Court of Appeal, the appellant further filed an appeal in this court. At the hearing of this appeal – the appellant adopted and relied on the Brief filed on the 26th of November 2003 and the Respondents also adopted and relied on their joint brief filed on the 25th of February 2004. The appellant formulated three issues for determination as follows:-

1. “Whether the appellant even though described in the bill of lading as “Notify Party” indeed lacked locus to sue upon the bill of lading.
2. Whether the failure by the lower Court to consider the Reply Brief of Argument filed by the Appellant did not amount to a breach of the Appellant’s right to a fair hearing as guaranteed by Section 36(1) of the 1999 Constitution of the Federal republic of Nigeria.
3. Was the lower Court right in holding that the Appellant cannot maintain an action against the Respondent in tort by reason of Section 375(1) of the Merchant Shipping Act 1990 when it is the purchaser and a Bailor for value having paid the price and freight and the property in the goods had passed to it by virtue of it being the holder of the original copy of the bill of lading and in possession of part of the Consignment”.

The Respondents distilled two issues for determination arising from the grounds of appeal namely: –

1. “Whether a person named as a NOTIFY PARTY on a Bill of Lading can institute and maintain an action under any guise in respect of the Bill of Lading.
2. Whether the Court of Appeal was right when it upheld the decision of the Federal High Court to determine the locus standi of the Appellant to institute this suit based on the facts in the statement of claim alone”.

I intend to be guided by the Issues raised for determination by the appellant – which I shall proceed to consider seriatim.

ISSUE ONE

“Whether the Appellant even though described in the bill of lading as “Notify Party” indeed lacked locus to sue upon the bill of lading”.

The learned counsel for the appellant vehemently defended the position of the “Notify Party” in relation to locus standi on a bill of lading. He made copious submissions in the appellant’s brief that the trial and lower courts failed to give due consideration to the endorsement on the front and reverse side of the Bill of Lading so as to determine the operative part and give effect to them. The learned counsel conceded that in Nigeria the standing to sue on a bill of lading is conferred by statute by section 375(1) of the Merchant Shipping Act Cap 224 Laws of the Federation of Nigeria 1990, he however disagreed with the pronouncement of the lower court that

“The locus standi to sue on a bill of lading, either in contract, bailment, or tort is statutory. It cannot be conferred by the alleged acts of the Respondent” on page 114 of the record of appeal as not being the correct position of the law. The learned counsel urged this court to be persuaded by the opinion of a world acclaimed law expert in the province of Merchant law, Tetley Williams in his book on MARINE CARGO CLAIMS 3rd Edition that when a bill of lading defines the parties to the contract then it would seem as if the party named as merchant within the con of the terms of the bill would be able to take suit on the contract of carriage if he sustained damage and loss. The learned counsel submitted, that the lower court failed to examine the nature of the relevant bill of lading, and that the bill as a document of title is equivalent in law to possession of the goods. This document entitles the appellant as a holder of the original bill of lading to the delivery of the goods. Reference was made to Payne & Ivamy Carriage of Goods by Sea, Eleventh Edition and the case of Horse v. Bidell Brothers 1912 A.C 18. The learned counsel considered the three types of bill of lading and the legal effect of the holder of the original bill of lading such as the appellant in a contract of carriage of goods by sea. He further made submissions on:-

1. Type of contract and nature of the Bill of lading, and its effect on the “Notify Party”.
2. Proprietary/Beneficial Interest of a Notify Party.
3. Implied contracts.

He cited a number of foreign cases from the United Kingdom, United States of America and France to conclude that the appellant though referred to simpliciter as a “Notify Party” may be able to sue as the holder of the original copy of the bill of lading. Furthermore in these countries the holder of the original bill of lading is entitled to possession and can sue upon the contract of carriage in respect of the bearer bill of lading. In the light of the trend in the civil law jurisdictions of the United States of America and France, the decision of this honourable court may not be good law today notwithstanding the provision of section 375 (1) of the Merchant Shipping Act 1990.

The appellant finally urged this court to hold that the rule in the case of Fassasi Adesanya v. Leigh Hoegh & Co. 1968 1 All NLR page 333 1967 – 1968 NSCC Vol 5 page 247 and Broadline Enterprises Ltd v. Monterey Maritime Corporation 1995 9 NWLR Pt. 417 page 1, “where it is sought to prosecute an action on a bill of lading, a plaintiff whose name does not appear (other than by reference to his being notified on the relevant bill and he is therein indicated, such a plaintiff has no locus standi to sue upon the bill is not settled law.” The court is invited to revise its decisions in these cases. The appellant made reference to a number of local and foreign cases in his submissions like Pacers Multi Dynamic Limited v. MV Dancing Sisters (2000) 3 NWLR Pt.648 page 241; Nigerian National Supply Co. Ltd v. Owners of MV Albion (1987) -1990 3 NSC Pt.220; Boothia Maritime Incre & Ors. v. Far East Mercantile Company Limited 2001 9 NWLRPt.719 page 572; Brawal Shipping Nigeria Limited v. Onwadike & Co. Ltd & Anor 2000 11 NWLR Pt. 628 page 387; Nigerbrass Shipping Line Ltd v. Aluminium Extrution Company Limited (1994) 4 NWLR Pt.341 page 733; Carcar Co. v. Suzdal 723 2d 1096 Cour d’ Appel d’ Aix November 23DMF1986 page 668; Brandt v. Liverpool, Brazil And River Plate Steam navigation Co. Ltd (1924) 1 K.B 575. The appellant urged this court to hold that it has locus standi to institute this action as a “Notify Party”.

The Respondents learned counsel replied that the appellant has not disputed the fact that he is not the consignee or endorsee on the Bill of Lading No.W013 dated the 21st May 1992, neither has it disputed that it was only named as a Notify Party on the face of the Bill of Lading. One question that begs for an answer is whether a notify party on a bill of lading can institute and maintain an action in respect of the Bill of Lading in its name under any guise. This court is urged to answer this question in the negative. The Respondents submitted that the right to sue or locus standi can be conferred by the Constitution or a statute or by some customary law, it cannot be presumed or implied. The Respondents submitted further that an admiralty action cannot be presumed or implied. The learned counsel referred to the case of Financial Merchant Bank Limited v. Nigerian Deposit Insurance Corporation 1995 6 NWLR Pt.400 page 226 at page 234. The Respondents explained further that in an admiralty action premised on the carriage of goods covered by a bill of lading the source of locus standi in such an action as in the appellant’s case is statutory.

From the foregoing, the learned counsel concluded that it is only the consignee or endorsee of a bill of lading to whom property in the goods have passed by virtue of such consignment or endorsement that can sue or be sued on it. In effect the appellant is a stranger to the contract of carriage evidenced by a bill of lading No.W013 and as a result does not have the right to sue in respect of the bill of lading. The learned counsel relied on the case of Broadline Enterprise Ltd v. Monterey Maritime Corporation and Anor 1995 NWLR Pt.417 page 1; Fassasi Adesanya v. Leigh Hoegh A/S 1907 – 1979 NSC page 128 at page 129ratios 4 and 5.

The learned counsel cited the case of Thomas Chukwuma Makwe v. Chief Obanu Nwukor (2001) 14 NWLR Pt.733 page 356 of page 358 Ratio 1 – as to the general rule that contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. The court is urged to discountenance the cases of Nigerbrass, Onwadike and Boothias which are clearly distinguishable from this case in hand. In these cases the bill of lading were consigned to specific persons and subsequently endorsed to other persons. The Respondents also submitted that the appellant can only succeed in bailment upon the terms of the bill of lading No.WO13 if he is the consignee or the endorsee of the bill of lading. There is no bailment relationship between the appellant and the Respondents. A company known as Terramar GMBH, the shipper of the goods and not the appellant, delivered the goods to the 1st Respondent. The issue of bailment was most canvassed and argued before the learned trial Judge. The appellant must also be a consignee or endorsee of the goods named on the bill of lading before any collateral right to sue in negligence can accrue to him, while there can be no possibilities of an implied contract between the appellant and the Respondents. The Respondents urged the court to find this issue in favour of the Respondents.

I must commend the appellant’s learned counsel for the level of research and industry embodied in the Brief in favour of making a “Notify Party” one which can institute an action on contract of carriage by sea based on the bill of lading. The learned counsel conceded that the law as to the parties to sue and be sued on a bill of lading is as amplified in section 375 (1) of the Merchant Shipping Act Cap 224 Laws of the Federation. He did not mince words in saying that this statute requires overhauling, and advocated that this court must revisit its decision in the cases Fassasi Adesanya v. Leigh Hoegh & Co (supra) and Broadline Enterprises Ltd v. Monterey Maritime Corporation (supra). He suggested a situation in which even if the appellant is a notify party and cannot sue in respect of the statutory provision in section 375 (1) of the Merchant Shipping Act, the Supreme Court may exercise its equitable jurisdiction as the Supreme Court of the United States of America did in the case of CAVEAR V. SUZDAL and hold that having paid the price for the goods and the freight, the purchaser in this case the appellant even though named as Notify Party” has proprietary and beneficial interests sufficient to entitle him to sue the carrier for the value of the goods. The appellant’s learned counsel for this proposition relied on foreign jurisdictions and cited cases from France, United States of America and the United Kingdom. He relied on the opinion of renowned authors as well. The suggestion of the learned counsel for the appellant is well received but the implementation by the Supreme Court will have the effect of taking this court outside its constitutional and traditional role of interpreting the laws and statutes, and plunge it unwittingly by pronouncement into usurping the constitutional role of the legislature. This is precisely the warning of the Supreme Court in the case of Buhari v. INEC & ors 2009 Vol.167 LRCN Vol.167 page 1 at pages 82FF – 83A that: –

“Courts of law, in interpreting the Constitution or a statute have no jurisdiction to read into the Constitution or statute what the legislators did not provide for, and a fortiori read out of the Constitution or statute what is provided for by the legislators. In either way, the courts are abandoning their constitutional functions and stringing into those of the legislature by interfering or interloping with them. As that will make nonsense of the separation of powers provided for in sections 4 and 6 of Constitution, courts of law will not do such a thing, whatever is the pressure by counsel.”

This court has a duty to interpret the applicable or operational law at the time of the occurrence of the event for which parties seek redress in court.

The court must interpret the law as it is and not as it ought to be. It is settled principle in the Nigeria Legal System that foreign laws and cases are only persuasive in the interpretation of our Constitution and Statutes.

The learned counsel cannot rely on foreign cases to hold that the decision of our courts based on the provision of section 375 (1) of the Merchant Shipping Act 1990, is not good law in that it gives no room for the consideration of the peculiar circumstance of each case in terms of the type and/or the nature of the relevant bill of lading.

I must remark that the overall submission of the learned counsel for the appellant on this issue is very evasive of the real question for determination of this court in the issue. This court has a duty to interprete that section of the statute – the Merchant Shipping Act and the locus of a notify party to sue on a bill of lading.The facts not disputed by the parties are as follows: –

1. That the appellant is the owner of the goods carried by the 1st Respondent covered by the Bill of lading No.W013 of 21st May1992
2. That the appellant was referred to as Notify Party in the Bill of lading.
3. That the bill of lading was made to order and the name of the appellant did not appear on it as either the consignor or the consignee.

The rules or principles governing the interpretation of statutory provisions are as follows:-

1. It is the intention of the legislature that should be sought, and same is to be ascertained from the words of the statute alone and not from other sources.
2. Where the word used in the provisions of a statute, are clear, simple and unambiguous, they should be given their simple, natural and ordinary meaning.
3. The court is not concerned with the result of its interpretation, that is, it is not the court’s province to pronounce on the wisdom or otherwise of the statute but only to determine its meaning.
4. The court must not import into a legislation words that were not used by the legislature, and which will give a different meaning to the of the statute as enacted by the legislature.
5. The court must not bring to bear on the provisions of a statute its prejudices as to what the law should be, but rather should interpret the law from the clear words used by the legislature.
6. The court must not amend the statute to achieve a particular object or result.

Aqua Ltd v. Ondo State Sports Council 1988 4 NWLR Pt.91 page 622

Fawehinmi v. IGP 2000 7 NWLR Pt.665 page 481

UBRBDA v. Alkes 1998 2 NWLR Pt.537 page 328

Awolowo v. Shagari 1979 6 – 9 SC page 51

ANN v. FRN 1985 2 NWLR Pt.6 page 137

Salami v. Chairman L.E.D.B 1989 5 NWLR Pt.123 page 539

Ogbonna v. A.G. Imo State (1992) 1 NWLR Pt.220 page 647

Adeleke v. O.S.H.A 16 NWLR Pt. 1006 page 608

Ojokolobo v. Alamu 1987 3 NWLR Pt.61 page 377

This court taking into consideration the foregoing principles shall examine the provisions of section 375 (1) of the Merchant Shipping Act Cap 224 Laws of the Federation 1990 as locus standi to sue on a bill of lading either in contract, bailment or tort, and most especially whether an appellant described as a Notify Party in the bill of lading could maintain an action against the Respondents.

Section 375 reads: –

“Every consignee of goods named in a bill of lading, and every endorsee of a bill to whom the property in the goods therein mention shall pass upon or by reason of such consignment or endorsement shall have transferred to and vested in him all right of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself.”

There is need to examine what is a bill of lading and a Notify Party,

“A bill of lading is defined in Blackburn on Sale 3rd Edition at page 27 as a writing signed on behalf of the owner of the ship in which goods are embarked, acknowledging the receipt of the goods, and undertaking to deliver them at the end of the voyage subject to such conditions as may be mentioned in the bill of lading. The bill of lading is therefore a written contract between those who are expressed to be parties to it.

A bill has two main functions:-

a. It constitutes a receipt for the goods which have been received for shipment.

b. It constitutes a contract for the carriage of the goods and delivery thereof as it contains the terms and conditions of carriage.”

Awolaja v. Seatrade Groningen B.V 1993 3 NWLR Pt.280 page 209

Bothia Maritime Inc v. Fareast Mercantile Co. Ltd 2001 9 NWLR Pt.772 page 572 SC.

“A notify party is the party whose name and address appear in a bill of lading who is to be notified by the shipping company or its agent of the arrival of the goods at the discharge port. The notify party is often an agent for the receiver of the goods who arranged for their clearance and transport to the receiver’s premises. There is normally a box on the bill of lading into which the details of the notify party are inserted.”

Jurisdiction is a strict matter of law confined by either the constitution or by a statute.

In the case of Madukolu v. Nkemdilim 1962 1 All NLR 587 the Supreme Court established the principle that in any civil proceedings or matter before any court of law assumes jurisdiction so as to determine or adjudicate on the cause or matter, the court must be competent.

A Court shall be deemed to be competent when:-

a. The court must be properly constituted regards members and qualifications of the bench and no member is disqualified for one reason or another.

b. The subject-matter of the case is within the court jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.

c. The case comes before the court intiated by due process of law and upon fulfillment condition precedents to exercise of jurisdiction of defect in competence is fatal for the proceedings are a nullity however well conducted.

Condition three above covers the issue of locus standi. In order for the court to have jurisdiction, the plaintiff must have locus standi to commence or institute the action. The learned Justice Niki Tobi JCA (as he then was) aptly puts this in the case of owners of M.V. Baco liner 3 v. Adeniji 1993 2 NWLR pg 274 pg 195at Pg 202 parags C – D that “locus standi in my view is a fore runner or precursor to jurisdiction. Accordingly, where it is proved that a plaintiff lacks locus standi to bring an action, the court will decline jurisdiction as it has none. A court of law has no jurisdiction to manufacture locus standi on a party and arrogate to itself jurisdiction. That is never done”.

The terms locus standi denotes the legal capacity to institute and action in a court of law. It is a status which the plaintiff must have before being heard in court. It is a condition precedent to determination on the merits. In order to achieve the status of locus standi, the claim of the plaintiff must reveal.

(a) A legal or justiciable right

(b) Show sufficient or special interest adversely affected…

(c) A justiciable cause of action

Momoh v. Olotu (1970) 1All NLR pg 117

Bolaji v Bamgbose (1986( 4 NWLR pt 37 pg 632

Adesanya v. The President 1981 5 SC 112

Adefulu v. Oyesile 1989 5 NWLR pt 122 pg 377

Thomas v. Olufosoye 1986 1 NWLR pt 18 pg 669

Odeneye v Efunnuga 1990 7 NWLR pt 164 pg 618

Owodunni v. Registered Trustees of CCC 2000 10 NWLR pt 675 pg. 315.

Where the question of locus standi comes into the issue of cause of action, a plaintiff who has no privity of contract with the defendant will fail to establish a cause of action, for breach of the contract as he will simply not have a locus standi to sue the defendant on the contract.

Momoh v. Olotu 1970 1 All NLR 117

From the forgoing, it becomes really necessary to explain what is privity of contract. The doctrine of privity of contract portrays that as a general rule, a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it. In short only parties to a contract can sue or be sued on the contract and a stranger to a contract can neither sue or be sued on the contract even if the contract is made for his………….him liable upon it. Moreover the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be used upon the contract.

Negbenebor v. Negbenebor 19711 ALL NLR 210. Ikpeazu v. A.C.B Ltd 1965 NMLR 374

K.S.O. Allied Products, Ltd. V. Kofo Trading Co. Ltd. (1996) 3 NWLR pt. 436 pg 244

Alfortrin Ltd. v. A.Y. 19969 NWLR pt 475 pg. 634.

The foregoing doctrine admits of exceptions which are not applicable to the position of a Notify Party in a bill of lading on any relationship based on a bill of lading.

It is however now settled by a plethora of cases that by virtue of section 375 (1) of the Merchant Shipping Act 1990 only a consignee of the goods named in a bill of lading or an endorsee whom the property in the goods have passed and by virtue of those facts will be able to sue on a bill of lading contract.

A notify party or addressee cannot therefore possibly be a party to the contract evidenced in the bill of lading.

Furthermore, a plaintiff who was not an endorsee of the bill of lading but merely holder of the original copy as in this case, does not have a right to sue on the contract categorically.

A notify party or addressee has no right of audience on the bill of lading W013 either in contract or tort of negligence.

Even in an action for bailment it is not possible to make a party whose name appears only in regard to notification of the arrival of the consignment assume the role of a bailor or bailee. The appellant may be a party to another contract on the order of the goods but surely not on the consignment based on the bill of lading W013 which was between Tetramer GMBH of Hamburg Germany and Woermann line – the 1st Respondent.

I must emphasise that locus standi to sue on a bill of lading either in contract, bailment or Negligence in Tort is statutory derivable from section 375(1) of the Merchant Shipping Act Cap 224 Laws of the Federation 1990. It cannot vest on the appellant by any act of the parties in the circumstances of this case.

Broadline Ent. Limited v. Monterey Maritime Corporation 1995 9 NWLR pt 417 pg 1.

Fassasi Adesanya v. Leigh Hoegh & Co. 1968 1 All NLR pg.333; Seatrade v. Flogret Ltd. 1987-1990 3 NSC pg. 453; Nigerian National Supply Co. v. Owners of M. V. Albion 1981- 1990 3 NSC pg 206; Pacers Multi Dynamic Ltd. V. M.D. “Dancing Sister” 2000 3 NWLR pt. 648 pg 241.

I am of the view that the lower court was right when it held that the appellant has no locus standi to institute this action against the Respondent. I therefore resolve issue one in favour of the appellant.

ISSUE TWO

Whether the failure by the lower court to consider the Reply Brief of Argument filed by the appellant did not amount to a breach of the Appellant’s right to fair hearing as guaranteed by section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.

The contention of the learned counsel for the appellant on this issue are as follows:-

(a) That the nature of the claim and cause of action was such that the action as filed by the plaintiff (the appellant in this appeal) ought to be heard on the merit and not one that should be dismissed in limine as the trial court had done.

(b) That the failure of the lower court to consider the arguments or submissions of the appellant in the Reply Brief of argument constituted a breach of the appellant’s constitutional right to fair hearing under section 36(1) of the 1999 constitution .

(c) That the failure of the lower court to consider the said Reply Brief of argument had occasioned a miscarriage of justice and the judgment ought to be set aside.

The learned counsel for the Respondents in replying on this issue relied on the case of Owodunni v. Registered Trustees of C.C.C.2000 10 NWLR pt 675 pg 375 from where he quoted from the decision of the Supreme Court as follows:-

(1) That locus standi is a threshold issue.

(2) Standing to sue is not on the success or merits of a case but on the showing of the plaintiffs case in his statement of claim. It is a condition precedent to a determination on the merits. It follows therefore that if the plaintiff has no locus standi or standing to sue, it is not necessary to consider whether there is a genuine case on the merits his case must be struck out as being incompetent.

(3) That the question whether or not a plaintiff has a locus standi in a suit is determinable from a totality of all the averments in his statement of claim. Thus in dealing with the locus standi of a plaintiff, it is his statement of claim alone that has to be carefully scrutinized with a view to ascertaining whether or not it has disclosed his interest and how such interest has arisen in the subject-matter of the action.

The learned counsel further submitted that though the appellant pleaded the bill of lading evidencing contract of carriage in paragraphs 7 and 25(1) of its statement of claim, there is no paragraph where he averred that it was the consignee or endorsee of the bill of lading. This court must hold that the lower court scrutinized the appellant’s statement of claim and the endorsement on the bill of lading and consequently arrived at a just decision.

I have considered the submissions of the learned counsel for the parties. The argument and submission of the learned counsel for the Respondents based on the decision of this court in Owodunni’s case is impeccable. I ……………..as a misconception of what locus standi denotes. Locus standi have been described as an unquestionable threshold issue. In order that a court may have jurisdiction the plaintiff must have locus standi to commence or institute the action. Hence locus standi has also been described as a forerunner to jurisdiction. Owners M.V. Baco Liner 3 v. Adeniji 1993 3 NWLR pt 274 pg 195.

In the celebrated case of Madukolu v. Nkemdilim 1962 1 All NLR 587; the Supreme Court pronounced that a court is competent if “The case comes before the court initiated by due process of law and upon fulfillment of a condition precedent to exercise of jurisdiction”.

This condition relates to the issue of locus standi to institute an action.

The foregoing therefore presupposes that to determine whether a plaintiff is the proper person to institute an action is a threshold determination, which the trial court and the lower court had rightly done. Fair hearing as guaranteed by section 36(1) of the 1999 constitution of the Federal Republic of Nigeria 1999 embraces the twin pillars of justice as follow:-

(a) Audi alteram partem (Hear the other party).

(b) Nemo judex in causa sua (No one should be a judge in his own cause).

Where the appellant has no locus standi to institute an action, the court has no jurisdiction to adjudicate on such matter. Appellant also raised the question that the failure of the lower court to consider its Reply Brief of argument had occasioned a miscarriage of justice and the judgment must be set aside.

It is glaring that the issues raised in the Reply Brief is meant to circumscribe and revisit the settled position of the law as to who can maintain an action on a Bill of Lading as stipulated in section 375(1) of the Merchant Shipping Act. The Court below is not bound to consider the argument, in the interest of justice and the court had rightly taken that step. On the overall the judgment of the lower court shows a dispassionate consideration of the facts raised in respect of the appeal, before taking a decision.

It is my conclusion that it will be a waste of precious litigation time and money and even in the peculiar circumstance of this case amount to an abuse of court process where the issue of locus standi is statutory to proceed to determine this case on merit.

Issue Two is resolved in favour of the Respondents.

ISSUE THREE

“Was the lower court right in holding that the appellant cannot maintain an action against the Respondent (sic) in tort by reason of section 375(1) of the Merchant Shipping Act 1990 when it is the purchaser and a bailor for value having paid the price and freight and the property in the goods had passed to it by virtue of it being the holder of the original copy of the bill of lading and in possession of part of the consignment”.

The learned counsel for the appellant submitted that the reasoning of the lower court in its judgment that in other causes founded in contract or in tort once the plaintiff relies on the bill of lading, to successfully maintain an action, the plaintiff’s name must be indicated on the bill of lading, as consignee or endorsee is erroneous in law. The learned counsel cited foreign cases in support of the reasons for holding this view particularly.

Margarine Union GMBH v. Cambay Princes S.S Co. (The Wear Breeze) 1967 2 Lloyds Report 315 at pg. 329 1969 1 QBD pg 219 at pg 241; Leigh and Sullivan Ltd. S. Aliakmon Shipping Co. Ltd. (the Aliakmon 1986 2 WLR pg. 302. He also considered the Hague Rules 1931 and Visby Rules 1977.

He urged this court to hold that:-

(1) The appellant’s suit as formulated in the statement of claim is one for bailment and not in contract.

(2) S.375 (1) of the Merchant Shipping Act, 1990 is not available to suits in tort, and therefore not applicable to the action.

(3) Being an action founded in tort, the trial Court was duty bound to examine all the evidence before it and not the Bill of Lading alone, in order to determine whether or not the appellant was the owner of the consignment and hence entitled to the full delivery of the goods.

(4) Being an action tort, it was outside the realms of cases which could be dismissed in limine by the preliminary objection of the Respondents on the ground that the Appellant is a ‘Notify Party’ and therefore lacked the locus standi to institute an action.

The learned counsel in addition cited Broadline Enterprises Ltd. v. Monterey case; Brawal Shipping Company Ltd. v. Onwadike & Co. Limited case and Boothia Maritime Inc. case. The court is urged to allow the appeal and revisit its decision in Fassasi Adesanya v. Leigh Hoegh & Co. and Broadline Enterprises Limited v. Monterey Maritime cases.

The learned counsel for the Respondents replied that the lower court arrived at a proper decision by upholding the Ruling of the trial court where the plaintiff’s suit was dismissed in limine pursuant to Order 27 Rule 3 of the Federal High Court Rules 1976.

Furthermore he added that it will be a dangerous precedent for this court to revisit its decision in the cases of Fasasi Adesanya and Broadline Enterprises Limited. The submission of learned counsel for the appellant on this issue to my mind cuts the picture of a drowning man struggling to hold on to everything within sight to stay or remain afloat. The learned counsel extended its argument and submission on this issue to cover bailment of which is tort. You can only have locus to sue where your name appears as consignee or endorsee on the bill of lading as laid down in Broadline Enterprises Ltd case, Adesanya case, Nigeria National Supply Co. case, Pacers Multi-dynamic Limited case. The foregoing cases are distinguishable from Nigerbrass Shipping Line Limited v. Aluminium Extrusion Limited (1994) 4, NWLR pt 341 pg. 233; Onwadike & Co. Ltd v. Brawal Shipping Nigeria Limited 1966 1 NWLR pt. 422 pg. 65 where in these last two cases the Bills of Lading were re-endorsed to other persons beyond the specific consignees.

Issue of locus standi by virtue of section 375(1) of the Merchant Shipping Act Cap 224 covers cases in contract, bailment and negligence in tort – which makes it statutory.

The learned counsel for the appellant in his submission in this appeal canvassed vigorously that this court must expand its coast of adjudication on the issue of locus standi as it relates to a Notify Party on a Bill of lading based on section 375(1).

He cited foreign cases though he admitted that they only have persuasive, value but are meant to serve the following purposes: –

1. “To highlight the error the lower Court fell into by showing that section 375(1) of the Merchant Shipping Act 1990, just like its counter-part section 1 Bills of Lading Act 1855 is not applicable to suits in tort.
2. In tort (delict) a ‘Notify Party’ or a consignee or endorsee who has no title simply because the bill of lading was not transferred or endorsed to him can successfully maintain an action in so far as he can prove ownership and that property in the goods had passed to him at the time the damage or loss occurred”.

He submitted that for suits founded in tort the applicable statutes are the Hague Rules 1931 or Visby Rule 131977. They are regulations of universal applications stated in the bill of lading to be applicable to carriage by sea. The Rules are the basis for the assessment of liability and compensation for losses in Marine cargo claims.

Since the issue of locus standi on the Bill of lading derives from section 375(1) of the Merchant Shipping Act, and is thereby statutory, it requires a radical change in the law – which is a Legislative Act, for the courts to revisit and overrule their previous decisions on the matter. I must quickly explain that revisiting or overruling its previous decisions by an Apex Court is not a random exercise. This court will surely revisit or overruling its previous decisions to curb perpetration of injustice. Where the cases are based on legislations or statutes it obviously requires an amendment to the particular statutes to overrule such cases.

I however encourage the learned counsel for the appellant to continue to lead the crusade for a change in that particular statute so as to eradicate any inherent injustice in implementing section 375(1) of Merchant Shipping Act, 1990.

I resolve this issue also in favour of the respondents. In sum this appeal lacks merit and it is hereby dismissed. The judgments of the trial court and the lower court are affirmed. Parties are to bear their costs.

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SC.24/2003