Pacers Multi-dynamics Ltd Vs The M.v Dancing Sister & Anor (2012)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

The claims of the appellant as plaintiff/applicant in an Admiralty Action in Rem reads

“The plaintiff as the consignee and owner of 13,600 Metric TONNES of Brazilian white refined Sugar covered by the “Congenbill” Edition 1978 bills of Lading Nos. 1, 2, and 3 shipped on Board the Defendants’ vessel “DANCING SISTER” for carriage of the said 13,600 Metric Tonnes of Brazilian white refined Sugar from RECIFE in BRAZIL to APAPA, LAGOS, claims against the Defendant’s jointly and severally for the value of 58.9 metric tonnes short landed cargo (refined sugar) and damages for breach of contract and/or breach of duty and/or negligence of the Defendant’s their servants, or Agents in respect of Damage done to 2,000 Metric Tonnes of the said goods during the said voyage in the sum of $1,007,213.00 (One Million and seven thousand, Two hundred and thirteen U.S. Dollars) only.

On the 7th of April, 1995 the appellant as plaintiff filed this action in the Federal High Court, Lagos Division. The appellant obtained an order exparte arresting and detaining the 1st defendant, the M.V. Dancing Sister. On the 25th of April, 1995 the Chief Judge of the Federal High Court discharged the arrest order unconditionally on an application filed by the 1st respondent on the ground that the appellant is not a party to the Bills of Lading either as a consignee or endorsee and so cannot sue on the Bills. His Lordship concluded that the arrest of the vessel, the M.V. Dancing Sister was ordered on a wrong set of facts presented to the court by the appellant, and ordered the vessel released.

On the 4th of May, 1995 the 2nd respondent filed on application under order 33 of the Federal High Court (Civil Procedure) Rules for an order striking out or dismissing the action on the grounds:

(a) That the appellant has no locus standi to institute and/or maintain the action, not having been named either as consignee or endorsee of the relevant Bills of Lading, and/or

(b) That the 2nd respondent has been improperly joined to the action.

The learned Chief Judge of the Federal High Court Belgore CJ, heard the application and in a considered Ruling delivered on the 23rd of November, 1995 held in the penultimate paragraph of the Ruling as follows:

“I do therefore hold that the plaintiff has no locus under the Bills of Laden Exhibits FA1, FA2, and FA3 to institute this action. And the action being an Admiralty one cannot through the back door be converted to a common law case of tort.

The learned Chief Judge struck out the case. That means there was no trial. The appellant appealed. That appeal was heard by the Court of Appeal Lagos Division. That court in a well considered decision delivered on the 8th of February, 2000 agreed with the Federal High Court and concluded thus:

“……the appellant has no locus standi to institute an action against the respondents not having been named either as consignee or endorsee of the relevant Bills of Lading. I hereby make consequential order striking out the action, which the court ought to have done, I also strike out the name of the 2nd respondent …..as no reasonable cause of action has been disclosed in the relevant clauses of the charter party.

Concluding, the Court of Appeal dismissed the appeal with costs of N5,000 in favour of the respondents: This appeal is against that judgment. In accordance with rules of this court both sides filed and exchanged briefs. The appellants’ brief was deemed filed on the 18th of October, 2006, and the respondents’ brief deemed filed on the 22nd of February, 2010. A reply brief was filed by the appellant on the 19th of February, 2010. The 1st respondent did not file a brief and was unrepresented at the hearing of the appeal on the 17th of October 2011. Learned Counsel for the appellant formulated four issues for determination.

1. Whether the court below was right when it held that a notify party cannot possibly be a party to the contract evidenced in a Bills of Lading.
2. Whether the court below was right in holding on the evidence before the Federal High Court and the Court of Appeal, that the appellant was neither consignee nor endorsee on any of the three Bills of Lading and thus lacked the locus standi to sue on any of the subject Bills of Lading.
3. Whether a notify party under a bill of lading is necessarily precluded in law from maintaining on action in the tort of negligence for loss or damage to goods carried by sea, by the mere fact of absence of a contract between such party and the owners/charterers of the carrier-vessel.
4. Whether the Court of Appeal was right in holding that the Federal High court should have struck out the action on the 25th of April 1995.

Learned Counsel for the 2nd respondent also formulated four issues. They are:

1. Whether the court below was right when it held that “a notify party cannot possibly be a party to the contract evidenced in a Bills of Lading.”
2. Whether the court below was right in holding, on the evidence before the Federal High Court and the Court of Appeal, that the appellant was “neither consignee nor endorsee” on any of the three Bills of Lading and thus lacked the locus standi to sue on any of the subject Bills of Lading.
3. Whether a notify party under a bill of lading is necessarily precluded in law from maintaining an action in the tort of negligence for loss or damage to goods carried by sea, by the mere fact of absence of a contract between such party and the owners/charterers of the carrier-vessel.
4. Whether the Court of Appeal was right in holding that the Federal High Court should have struck out the action on the 25th of April, 1995.

The four issues formulated by the 2nd respondent are identical with the four issues formulated by the appellant. I would consider the issues formulated by the appellant, which in effect would be considering all the issues formulated by the 2nd respondent.