Boothia Maritime Inc. V Fareast Mercantile Co. Ltd. (2001)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C.

The plaintiff claims against the three defendants jointly and severally for the sum of N100,000.00, being special and general damages for the loss of and/or non-delivery by the defendants as common carriers and bailees for reward for short-delivery of 12 out of 66 pallets of uncoated Bond paper carried on board the defendants’ vessel. The said goods were consigned to the order of the plaintiff, as the endorsee thereof on the bill of lading No. 224 Ex M/V “Kapetan Leonidas” arriving at the Tin Can Island Port. Apapa, Lagos on 9/10/90. The bill of lading covering the consignment was issued by the 2nd defendant, Global Transporte Oceanica SA Inc. in favour of Savannah Bank of Nigeria Ltd. who, in consideration for value received, endorsed it to the plaintiff. On arrival of the vessel “Kapetan Leonidas” at the ‘Tin Can Island Port on 9/10/90, the plaintiff handed over all the necessary shipping documents, including the aforesaid bill of lading No. 224, to its clearing agent Musina Nigeria Ltd., with the instructions to perform the necessary Customs formalities and settle the duty to the Board of Customs & Excise.

In the process of clearing the goods, the said bill of lading was given by the said Musina Nigeria Ltd. to the 3rd defendant, Nigerian Ports Authority who made a release order of the said goods to it (the clearing agent). It was at this juncture that the short-delivery was noticed. Thereupon, the plaintiff brought this action for damages for the short delivered 12 pallets, having filed its writ of summons with the statement of claim, both dated 3/10/91.

Rather than answer the plaintiff’s statement of claim by filing the defendants’ statement of defence, the 1st defendant, as applicant, by motion on notice to which it attached a copy of the bill of lading No. 224, i.e. by way of demurrer proceedings under Order 27 of the Federal High Court (Civil Procedure) Rules, 1976 Cap. 134, Laws of the Federation of Nigeria 1990, prayed the High Court to dismiss and/or strike out the plaintiff’s/respondent’s action on the grounds that the plaintiff, not having been named as either the consignee or endorsee of the relevant bill of lading on which their claim herein is based and/or if so named, having endorsed the same to another party, has no locus standi to institute or maintain this action as presently constituted.

The learned trial Judge took arguments on the said demurrer application and in a considered ruling delivered on 30/7/92, he granted the motion as prayed.

Dissatisfied, the plaintiff appealed to the Court of Appeal. In a considered judgment, the Court of Appeal allowed the appeal.

Next was the turn of the defendants to appeal to this Court as appellants.

The respondent neither filed a brief nor was it represented at the oral hearing.

From the four grounds of appeal filed by the appellants, they, identified the following issues for determination, namely,

“1. Whether an affidavit is mandatorily required in support of a demurrer application under Order 27 of the Federal High Court (Civil Procedure) Rules, 1976. (supra), and did the non-filing of such an affidavit by the appellants herein preclude the trial and Lower Courts from looking at the document (Bill of Lading) pleaded by the respondent in their statement of claim in the determination of the demurrer application? (Ground 1)”.

2. Whether Order 33 of the Federal High Court (Civil Procedure) Rules aforesaid (particularly rules 4 & 20 thereof) is applicable to demurrer applications brought under Order 27 of the Federal High Court (Civil Procedure) Rules (supra) so as to require the filing of a supporting affidavit by the appellant and whether failure to file such an affidavit is an incurable fundamental defect? Grounds 2 &3)”.
3. Whether the applicant in the demurrer proceedings needed to have established by evidence the passing of property other than rely on the contents of the statement of claim and/or the document (Bill of Lading) pleaded by the respondent therein?”.

At the oral hearing, Mr. Oluwafemi Atoyebi, learned Counsel for the appellants submits that rule 1 of Order 27 forbids any question of fact being raised at the proceedings, while rule 2 also forbids leading evidence in respect of any fact and discussion of question of fact. He stresses that the applicant is deemed to have admitted all the facts averred by the plaintiff in his statement of claim. Counsel argues that the make-up of the statement of claim comprises facts as alleged by the plaintiff, which includes the averment on the bill of lading. He however says that the demurrer procedure does not include the statement of defence. It is his submission that the plaintiff has not made a case to be entitled to judgment and this explains why he has approached the court, at this stage, by the demurrer proceedings rather than attempt to answer the plaintiff’s claim conventionally by filing the statement of defence. In effect, Counsel submits that the plaintiff has no locus standi to maintain the action as he has passed the bill of lading to a third party. He calls the court’s attention to the recent decision of this court in Brawal Shipping (Nig.) Ltd. v. F .I. Onwadike Co. Ltd. & Anor, (2000) 11 NWLR (Pt.678) 387. Suit No. SC. 13311997 of 30th June, 2000 but submits that the decision in this case dealt with an issue not properly before it and so was a mere obiter. In contrast, Counsel says that the bill of lading was pleaded in the instant case and therefore, he submits that the appellants are entitled to rely on it.

Counsel also made a brief submission on Issue 2 which seeks to enquire whether Order 33 of Federal High Court (Civil Procedure) Rules, particularly rules 4 and 20 thereof, are applicable to demurrer applications brought under Order 27 of the Federal High Court (Civil Procedure) Rules. He submits that the two orders apply to two different situations. He further differentiates between the two Orders on the basis that while Order 33(1) provides that the application can be filed at any stage of the proceedings, under Order 27 the demurrer proceedings would be appropriate when only the statement of claim alone has been filed. He finally submits that the lower courts were wrong in holding, as they did, that the two Orders are similar.

Finally, Counsel urged us to allow the appeal and strike out the case against the appellants.

In the appellants’ brief their learned Counsel made further amplifications on Issues 1 and 2 while Issue 3 was accorded a detailed treatment.