Petro Jessica Enterprises Vs Leventis Technical Company Ltd (1992)

LawGlobal-Hub Lead Judgment Report

S. M. A. BELGORE, J.S.C.

The first appellant is a clearing agent for the Department of Customs and Excise, Shipping agent, warehouseman and forwarders. The second appellant is also a warehouse man, stevedoring contractor and freight forwarding company but according to the claim it also acts as agent of first appellant. The statement of claim, relating to warehousing of the defendant’s cargo and rent due thereupon concluded as follows:

“WHEREOF Plaintiffs claim the sum of N270,470.00 due on the warehousing (including related services), the defendant’s cargo B/L No.13 and B/L No.14 ex Eco Ana of 28/10/77, Rotation No.77/451, plus interest from 1st May 1977 until judgment.”

The matter was filed before the Federal High Court, Benin Division whereupon the defendant raised by way of preliminary objection contained in the concluding part of Statement of Defence as follows in paragraphs 19, 20 and 21:

“19. The defendant will before the trial or at trial raise by way of preliminary points of law the followings:-

(a) That both the Writ of Summons and Statement of Claim as formulated are improperly before the Court and ought to be struck out or dismissed on the ground that the proper parties are not before the Court.

(b) That there is no proper Plaintiff or Plaintiffs before the Court having regard to paragraphs 1,5,6 and 14 of the Statement of Claim filed.

(c) That the claim of the Plaintiffs is neither founded on established contract or Tort in law the same being devoid of elements of breach of contract and/or Negligence and particulars respectively.

20. The Defendant avers and maintains that both the Writ of Summons and Statement of Claim disclose no cause of action against the Defendant and ought to be dismissed:
21. That the Plaintiff’s claims are misconceived, vexatious and speculative and should be dismissed.

DATED at Benin City this 9th day of August, 1984.”

Trial Federal High Court Judge heard the argument on the preliminary objection as formulated in the Statement of Defence, holding the objection to be demurrer which at that stage of joining issues was incompetent; for a demurrer would be valid only if made before Statement of Defence, but after Statement of Claim has been filed. Thus Order 27 Federal High Court Rules precludes demurrer on the filing of statement of defence. However, before the motion was argued, learned counsel for the defendant, Okeaya-Inneh, S.A.N., raised another point, that of jurisdiction.

The plaintiffs, now appellants after some argument agreed to the issue of jurisdiction to be cleared first whereupon learned Federal High Court Judge heard the argument on the issue of jurisdiction. After very exhaustive consideration of the law, the judge came to the conclusion that he had no jurisdiction for the matter was not of jurisdiction in admiralty triable by his Court and relied on S.7(1)(d) Federal High Court Act 1973. But instead of striking out the suit he invoked his powers under S.22(2) Federal High Court Act and transferred the suit to Bendel State High Court for trial. Against this decision the appellants appealed to the Court of Appeal.

The contention in grounds of appeal in the Court of Appeal was that the trial judge erred in holding that this matter was not admiralty matter. The grounds are as follows:-

GROUND 1:

The learned trial judge misdirected himself in law and in fact when he held that for instant suit to sound in Admiralty, “the Agreement relating to the carriage of goods in a ship …….must be between the parties to the suit.

Particulars of Error:

(a) S.1(1)(h) of the Administration of Justice Act 1956 (England) enacts that admiralty jurisdiction includes:

“any claim arising of goods in a ship or, to the use or hire of a ship.”

(b) Obaseki, J.S.C. (delivering the leading judgment) in case of Aluminium Manufacturing Co. (Nig.) Ltd. v. Nigerian Ports Authority (1987) 1 NWLR (Pt.51) 485 at page 486 stated as follows:-

“In other words, any claim which arises from acts or omissions of third parties after the Agreement has been “executed or terminated does not come within the purview of that paragraph (h) of subsection 1….”

It is clear from the above that the claim which is the cause of action is clearly distinct from the Agreement itself (referred to in subsection (h): The claim in AMC v. NPA arises from acts of 3rd parties. What put the case outside Admiralty is not that the agreement is not between the parties to the suit, it is that the parties “cause of action arose after the termination of goods in a ship…. It is clear that in that case, the Nigerian Ports Authority, who is a party to the suit is not a party to the Agreement.

(c) Upon the pleadings (statement of claim, defence and reply) it is clear that the Agreement “relating to the carriage of goods in a ship had not yet been completed before the storage and warehousing of the goods at Burutu occurred. It is the case of the defence that the destination of the cargo is Lagos, Apapa, and that this was the agreement between the shipper and the carrier as evidenced by Bills of Lading Nos. 13 and 14 ex. Eco Ana. The storage of the relevant goods at Burutu and the refusal/omission/neglect to pay rent are therefore acts or omission that took place before, not after the” Agreement relating to the carriage of goods in a ship …”

GROUNDS 2:

The learned trial judge misdirected himself in law and in fact when he held that because “there is no evidence or any averment in the statement of claim that the plaintiffs are the consignees of the goods or that they are the endorsees of the Bills of Lading, the provisions of the Bills of Lading Act cannot avail plaintiffs in this case.”

Particulars of Error:

(a) It is clear from the pleadings that the relevant Bills of Lading were duly endorsed to the defendant and, indeed, that the defendant took delivery of the material goods, the property passing to him.

(b) Having thus taken delivery under the endorsed Bills of Lading, all the right and liabilities including right to sue and be sued passed to the defendant.

(c) Under clause 6 of the standard Bills of Lading of Facship Lines with which the defence is familiar, the carriage is responsible for the expenses of storage pending transshipment and it is immaterial, by what form or means that transship to port of destination took place.

(d) Ordinarily the plaintiffs ought to look to the carrier for his storage/ warehousing rent. But when the defendant interfered with the contract evidenced in the Bills of Lading between the warehouseman and that carrier, and proceeded to substitute himself(the defendant) for the carrier by himself removing the goods from the warehouse, of the plaintiffs (without the authority of any release from the plaintiffs and proceeding to perform the duty of the carrier by himself effecting the transshipment to the port of destination) the defendant became liable to the plaintiff for wrongful interference with the contractual rights of the plaintiffs, one of which right is that the warehouseman shall have lien on the goods for rent and expenses. It is for this tort of wrongful interference with contractual rights that the plaintiff has sued the defendant.

(e) Because the claim for rent derives from the Agreement relating to carriage of goods in a ship….. and because the wrongful interference with the right to collect this rent is the foundation of the claim of the plaintiff, the action is properly in Admiralty.”

Learned counsel for the appellants seemed to place more emphasis on the words “any claim arising out of any agreement relating to carriage of goods in a ship” in her argument to persuade the Court of Appeal that the case is within admiralty jurisdiction of the Federal High Court. The entire issues for determination centred around this contention in the appellants’ Brief of Argument. The Court of Appeal in a reserved judgment unanimously dismissed the appeal. Ejiwunmi, J.C.A. copiously referred to several authorities on what is jurisdiction of the Federal High Court by holding as follows, wherein he referred to pleadings:

“In my view, the central issue that has to be resolved in this appeal is whether the cause of action is a cause or matter in Admiralty. At the lower Court, as no evidence was led the learned trial judge approached the resolution of the same question by an examination of the Writ of Summons, the statement of claim and the statement of defence filed by the parties in order to resolve whether the objection to the jurisdiction was well founded. In this regard, the Court adopted rightly in my view, the approach of the Supreme Court in National Bank (Nig.) Ltd. and Anor. v. John Akinkunmi Soyoye and Anor. (Supra).

I will therefore set down first the relevant paragraphs of the pleadings of the parties. In my view, paragraphs 5, 6, 10, 11,12, 13, 18, 21, 28 and 33 of the appellants statement of claim are therefore relevant, and they are reproduced hereunder:-

xxxxxxxxx xxxxxxxxxxx

The learned trial judge after due consideration of the pleaded facts by the defendant, now respondent, which are mainly a denial of any liability of the appellants claim, then considered whether all the facts as found fit into the scope and contents of the Admiralty jurisdiction of the Administration of Justice Act, 1956. And after due consideration of the several provisions of the section of the Act, the learned trial judge said as follows:-

‘”The question now is; can the facts of this case as stated earlier in this ruling fit into any of these questions or claims Counsel for the plaintiff has submitted that since it is clear from the Writ of Summons and the statement of claim involves ship, bills of lading and cargo, the claims fit properly into section 1(1)(h) above. I am sorry I cannot agree with this submission. The wording of this subsection is very clear, straightforward and unambiguous. It talks of any claim arising out of any agreement relating to the carriage of goods in a ship or to the use (of a ship) or hire of a ship. In the first place, there is no agreement between the parties to this case either in relation to carriage of any goods by ship or as to the use of a ship.

Claim under this subsection cannot therefore by any stretch of imagination be extended to cover a claim for warehousing. Besides, looking into subsection 2(a)(c) of section 1 of the 1956 Act, I find myself unable to fit this claim into any of them,”

With this conclusion of the learned trial judge, I entirely agree as that conclusion is in accord with my view of the interpretation of section l(l)(h) of the Administration of Justice Act, 1956.” He then referred to the case of Aluminium Manufacturing Co. Ltd. v. Nigerian Ports Authority (1987) 1 NWLR (Pt.51) 475, at 486. Thus the appeal to this Court.

The ground of appeal, for full understanding of the appellants’ contention is hereby reproduced as follows:”

GROUND 1

The learned Justices of the Court of Appeal erred in law in upholding a determination by the learned trial Court in which the trial Court declined jurisdiction, approaching and arriving at its determination by confining itself to an examination of the statement of claim and statement of defence only, i.e. to the exclusion of a reply timeously filed to the statement of defence.

PARTICULARS

(i) Per Ejiwunmi, J.C.A. at page 9 of the lead judgment:

“In my view, the central issue that has to be resolved in this appeal is whether the cause of action is a cause or matter in Admiralty. At the lower court, as no evidence was led, the learned trial judge approached the resolution of the same question by an examination of the Writ of Summons, the Statement of Claim and the Statement of Defence filed by the parties in order to resolve whether the objection to the jurisdiction was well founded. In this regard, the Court adopted rightly in my view, the approach of the Supreme Court in National Bank (Nig.) Ltd. and Anor. v. John Akinkunmi Soyoye and Anor. (Supra).”

(ii) But a Reply to the Statement of Defence was on record, duly filed on 2nd October, 1984, and averring that the cargo in question was cargo still in transit, stored at a (transit) port where it was awaiting further shipment to Bill of Lading port of destination (vide page 19 of Record of Appeal to Court of Appeal).

GROUND 2:

The learned Justices of the Court of Appeal erred in law when they failed to recognise a pleading in the Statement of Defence which brought the Suit within Admiralty jurisdiction.

PARTICULARS

(a) Per Ejiwunmi, J.C.A. at page 20 of the lead judgment:

“The learned trial Judge after due consideration of the pleaded facts by the Defendant, now Respondent, which are mainly a denial of any liability of the Appellants’ claim then considered whether all the facts, as found, fit into the scope and contents of the Admiralty Jurisdiction of the Federal High Court as spelt out in Section 1 of the Administration of Justice Act 1956.”

(b) But the Statement of Defence did more than merely deny liability:

“It pleaded specifically that “Lagos Port, i.e. Apapa, was the port of destination agreed between Carrier and Defendant, as evidenced by the trial produce oral and documentary evidence to establish these facts and binding Agreements”

(page 14, lines 24/28.”

(c) In effect, the defence pleaded that Burutu was not the port of destination for the cargo, as per the Agreement evidence by the Bills of Lading. With the goods not yet in Lagos, i.e. Apapa Port, “the Agreement relating to the carriage of goods in a ship or to the use or hire of ship” has not yet been carried out or terminated.”

(d) The services and facilities provided at Burotu were at the request of the Master, who is necessarily obliged to render himself liable in order to carry out his duty as Master. They are either in respect of hull, machinery, cargo and freight or else other disbursements. The point is that the Master requested them in order to render the vessel seaworthy (i.e.) free and ready) for the next voyage. It is either a claim founded on interest on cargo which is still the subject “of any claim arising out of any agreement relating to the carriage of goods in a ship or to the use of hire of a ship” OR else it is founded on interests on hull, etc. In which case the issue comes under S.1(1)(p) of the Administration of Justice Act, 1965.

GROUND 3:

The learned Justices of the Court of Appeal erred in law and misinterpreted Section 1(1) (h) of the Administration of Justice Act, 1956, when they held that Section 1(1) (h) implied that at the material time, the cargo must actually be inside the carrying vessel, so that for the “claim arising” to come within the cognisance of Admiralty Jurisdiction, it (the claim) must arise while the relevant cargo is actually in the carrying vessel in any event, the learned Justices erroneously over-sighted S.1(1)(p) of the 1965 Act.

PARTICULARS

(a) At page 23, lines 3/11, of the Lead judgment, the learned Justices of Appeal said:

“Based upon all the principles enunciated above, the facts of this case show quite clearly that the goods which gave rise to the cause of action had been fully discharged on land. It would be straining unduly the provisions of Section 1(1)(h) of the 1956 Act, that the claim ought to be regarded as one arising out of any relating to the carnage of goods in a ship or to the use of hire or a ship. From the above observation concerning the situs of the cargo, it is my view that the Appellants claim does not fall within the provisions of Section l(l)(h) of the Act.”

(b) In view of paragraph 21 of Statement of Claim and paragraph 4 of Reply to Statement of Defence, S.1(l)(P) is available to use for re-imbursement in respect of expenses for stevedoring and warehousing.

GROUND 4

The learned Justices of the Court of Appeal erred in law when they held that there is jurisdiction to commence upon a determination and yet, at the same time and in the same matter, proceed to determine the merits of the case which, for lack of jurisdiction, he was transferring to another High Court.

PARTICULARS

In the lead judgment of the Court of Appeal, Ejiwunmi, J.C.A. said:

“I agree entirely with the views expressed by the learned trial judge in the passage above.” And what is the passage It is this, the citation of which arose in this manner: The learned trial Judge first cited S.499 of the Merchant Shipping Act 1894:

“499. Whenever any goods are placed in the custody of a wharfinger or a warehouseman under the authority of this part of this Act, the wharfinger or warehouseman shall be entitled to rent in respect of the same and shall also have power at the expense of the owner of the goods, to do all such reasonable acts as in the judgment of the wharfinger or warehouseman are necessary for the proper custody and preservation of the goods and shall have a lien on the goods for rent and expenses.”

Then he went on:

“But there is no indication as to which Court has jurisdiction to enforce such rent or expense. But it is my respectful view that such court is certainly not admiralty court. Assuming, but without agreeing, that the applicable court is the admiralty court yet before the jurisdiction of the court could be evoked, there must be proper agreement between the wharfinger or warehouseman and the owner in this case. From all I have been saying, I am satisfied that this case does not fall within the admiralty jurisdiction to try the case.” (Italics mine).

Mrs. Ayanka-Wilson, of counsel formulated in her Brief of Argument for the appellants:

“ISSUE FOR DETERMINATION:

These are three:

(i) WHETHER on the analogy of proceedings by Demurrer, there is a limitation set as to how much of the proceedings (or what minimum range of proceedings) is relevant and/ or necessary for a determination of the issue of jurisdiction;

(ii) WHETHER mere discharge simpliciter of the relevant cargo from the carrying vessel also discharges ipso facto the owner/carrier/master from the Agreement of carriage by sea Put differently;

WHETHER the proper question to ask is not

(a) below, rather than (b):

(a) Is the Agreement relating to the carriage of the relevant goods in a ship still subsisting or has it been determined, when the cause of action in the suit arose

(b) Has the cargo been discharged/unloaded or not when the cause of action in the suit arose.

(iii) WHETHER the Ruling of the learned trial judge on the issue of jurisdiction is not premature, thus seemingly leading to the anomalous position in which the learned trial Judge, after declining jurisdiction, immediately resumed it to pronounce on the merits of the case; to the effect that “as between the wharfinger/warehouseman and the owner of cargo (i.e. as between the parties to the main suit) there is no proper agreement”!

Put differently:

WHETHER the seemingly unguarged incursion of the learned trial Judge into the merits of the case, after himself declining jurisdiction, is not because the learned trial Judge did not first examine how the action of the master of the M/V Eco Ana in depositing cargo in the Plaintiffs’ warehouse at Burutu came to give rise to Defendant’s tiabilities to Plaintiff for rent.”

To this formulation of issues is the Respondent’s Brief which telescoped the issues to these:

ISSUES FOR DETERMINATION:

Notwithstanding the above, the issues are:-

(a) Whether the claim as formulated in the Writ of Summons and pleadings, and on the Briefs filed by the parties, the Court of Appeal was right in upholding the Ruling of the Federal High Court

(b) Whether the Court of Appeal was also correct in having upheld the ruling of the Federal High Court, the subsequent order for transfer was justified in the circumstance”

To my mind the issues formulated by the appellants in their Brief seem to go far beyond what they pleaded in the Court of trial, Simply put, the claim at the Federal High Court was for rent for warehousing the respondents goods as discharged by the M/V ECO ANA. The Eco Ana was to discharge the cargo into Lagos Port but it seemed this was impossible due to congestion and the Respondent as owners of the cargo agreed that the discharge be effected at Burutu. The Nigerian Ports Authority apparently was in league with the alternative arrangement as it opened the warehouse, released the cargo to the respondent and was duly paid its dues. To the Respondent the appellants had no locus in this matter as they were neither privy to their agreement with the Eco Ana nor with the respondent; if the appellants had a previous arrangement with the Nigerian Ports Authority certainly it had nothing to do with the respondent. What the appellants contended in the two lower Courts and right to this Court is that the Federal High Court has jurisdiction to hear this matter as it was a matter in admiralty. The applicable law at the time of trial is the Administration of Justice Act (of England) 1956 (4 and 5 Eliz 2 C. 46) in Part 1 thereof where the Admiralty Jurisdiction of the High Court is clearly enumerated inter alia as follows:

“1. Admiralty jurisdiction of the High Court

(1) The Admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following questions or claims:-

(a) any claim to the possession or ownership of a ship or to the ownership of any share therein;

(b) any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;

(c) any claim in respect of a mortgage of or charge on a ship or any share therein;

(d) any claim for damage done by a ship;

(e) any claim for damage received by a ship;

(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers

or persons in possession or control of a ship or of the master of crew thereof or of any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible, being an act neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, ;in or from the ship;

(g) any claim for loss of or damage to goods carried in a ship;

(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship.”

The appellants relied heavily on the words “any claim arising out of any agreement” in subsection (1)(h) above as conferring jurisdiction on Federal High Court in admiralty. Certainly a misconception could lead to mischief if a statutory provision is to be read out of con. The subsection mentions in full

“any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship”.

The claim of the appellants as plaintiffs relates to rent due on warehousing the goods of the defendant company. The statement of claim, statement of defence and reply to statement of defence all allude to claim for rent. The respondent as consignee of the cargo was to take delivery in Lagos from the ship. Due to port congestion in Lagos the ship was diverted to Burutu. There is no contract between the appellants and the respondent on warehousing; rather the agreement was with the Ports Authority who delivered the goods to the respondents at Burutu. Once there is a discharge from the ship and the consignee has been notified through his clearing agent in Lagos and the alternative port of discharge has been accepted, the matter completely was no longer with the shippers because they owned no responsibility for its warehousing. The matter as rightly pointed out is mere contract and not a subject for jurisdiction in admiralty. The jurisdiction of Federal High Court, as at the time the suit giving rise to appeal was filed in inter alia as provided in S.7(1) of Federal High Court Act (Cap 134) Laws of the Federation of Nigeria 1990 as follows:-

“7(1) The Court shall have and exercise jurisdiction in civil cases and matters –

(a) ……………………….

(b) ………………………..

(c) ………………………….

(d) of Admiralty jurisdiction

(e) ……………………………

(f) ……………………………..

The admiralty jurisdiction of the Federal High Court has been enumerated in Administration of Justice Act 1956 (supra) and it is clear that this matter has nothing to do with admiralty jurisdiction. The mere fact that goods at one stage in their movement had a voyage on a ship is not ipso facto giving rise to jurisdiction in Admiralty for cargo already discharged and only to be collected by the consignee or his agent. The contract covered by Admiralty jurisdiction, that of voyage in a ship and discharged finally to port of consignment and in conformity with the contract finally discharges the shipper from his obligation on the goods. In the instant case the respondent company as consignee took delivery of the goods and B paid the Nigerian Ports Authority and Department of Customs and Excise their dues. [See Aluminium Manufacturing Co. Ltd. v. Nigerian Ports Authority (1987) 1 NWLR (Pt.52) 475, at 486; American International Insurance co. Ltd. v. Ceekay Traders Ltd. (1981) 5 S.C.811. The law governing the admiralty jurisdiction of Federal High Court is the Administration of Justice Act 1956 (supra) and if there is any claim arising after the termination of agreement between the shippers and consignee it will be overstretching the purport of S.1 (1)(h) of the Act to interpret the provisions of a contract thereafter as that in admiralty. Once the cargos was unloaded from the ship and received into the warehouse without any loss or blemish the shippers obligation terminates and what follows is mere contract not a matter in admiralty. It is true there is incident of what is known in Admiralty as “Diversion”, whereby in this case the cargo was discharged at Burutu instead of Lagos as envisaged in the contract, the consignee has not complained. The consignee’s handlers in Lagos and the Nigerian Ports Authority agreed to the alternative port of discharge and if the appellants’ claim they have to come in, they can do so only in respect of mere contract, express or implied, but not in admiralty. Thus the goods in the warehouse at Burutu after their discharge were not goods in a ship as stipulated in S.1 (1)(h) Administration of Justice Act 1956 (supra).

Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. The Federal High Court’s jurisdiction is clearly set out in S.7 of the Federal High Court Act(Cap 134 Laws of Federation of Nigeria 1990) and that Court cannot arrogate to itself a jurisdiction it has not got. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court; a fortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the court may not have jurisdiction it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity. [Osadebay v. A-G., Bendel State (1991) 1 NWLR (Pt.169) 525; Owoniboys Tech. Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt. 199) 550; Okesuji v. Lawal (1991) 1 NWLR (Pt. 170) 661; Katto v. Central Bank of Nigeria (1991) 9 NWLR (pt.214) 126; Utih v. Onoyivwe (l991) 1 NWLR (Pt. 166) 166].

Thus there was a motion verbally objecting on jurisdiction at the Federal High Court, learned trial judge was right to take it up, for by merely looking at the pleadings, it was obvious matter of jurisdiction was pertinent. [Okoye v. NC and F.Co. Ltd. (1991) 4 NWLR (Pt. 199) 501; Din v. A-G., Federation (1988) 4 NWLR (Pt.87) 147]. At the end of addresses by counsel, the learned trial judge ruled he had no jurisdiction and he is perfectly right. The matter before him was one of ordinary contract, not in Admiralty and he was right to invoke S.22(2) of Federal High Court Act 1973 that though the matter was not properly before his Court, he would not dismiss it but transfer it to a State High Court of competent jurisdiction. [Aluminium Manufacturing Co. Ltd. v. Nigerian Ports Authority (supra).

For the foregoing reasons, this appeal has no merit and I dismiss it with N1,000.00 costs to the respondent.

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Other Citation: (1992) LCN/2526(SC)