Tayasa Dredging & Construction V. Karlander Nigeria Limited (2000)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

T

his appeal has simple facts. The applicable principles of law are also beyond dispute. The appellant was the plaintiff before the lower court. It filed a writ of summons and later a Statement of Claim wherein it claimed against the respondent as the defendants “the sum of US$576,000.00 and N1,832,000.00 for the loss and damage occasioned by the defendant’s vessel MT REAL PROGRESS ramming into the plaintiff’s vessel MD MOWA at Bomy Town Anchorage on 11th September, 1994 and the sum on N100,000.00 as exemplary damages”.

The defendant in reaction to the plaintiff’s statement of claim filed a process captioned “Motion Notice brought pursuant to Order 27 of the Federal High Court (Civil Procedure) Rules, 1976…” Under this curious process, the defendant prayed for:
“an order striking out the name of the said defendants and/or dismissing the action on the ground that the said defendants are not proper parties to this action and for such order or further orders as this Honourable Court may seem just to make in the circumstances. Attached to this application and marked exhibits FA1 and FA2 respectively are copies of the certificate of ownership and encumbrance and the relevant entries in the Lloyds register of ships relating to the “MT REAL PROGRESS at all times material to the claim herein”.
(Italics mine)

I have described the process as curious because it is an unusual one. A motion under the Rules of the Federal High Court ought to be supported by an affidavit. It is the depositions in the body of the affidavit which explained the facts being relied upon by the applicant as a justification for the prayer or prayers being sought in the motion. Rather than follow the prescribed procedure, the Defendant gave a description of the document upon which he relied and their purport on the body of the motion paper. Thus, without deposing to an affidavit, the defendant was enabled to bring factual matters before the lower court.

On 18-11-96, the lower court heard argument for and against the “Motion on Notice”. On 10-12-96, the lower court acceded to the request of the defendant. It accordingly struck out the name of the defendant from the suit. The plaintiff was dissatisfied and has brought this appeal. In the appellant’s brief filed, the issues for determination in the appeal were identified as the following:
“1. Whether in view of the provisions of Rule 1 of Order 27 and Order 33 of the Rules and facts sought to be established by the documents attached to the defendant/respondent’s application dated 16th September, 1996, the learned trial Judge was right in considering the said application without the benefit of an accompanying affidavit.
2. Whether in the circumstances of the case and particularly in view of the paragraph 3 of the statement of claim the learned trial Judge was right in holding that the issue of ownership of MT REAL PROGRESS was a question of law.
3. Whether in view of the provisions of Order 27 of the Federal High Court (Civil Procedure), Rules, 1976 (‘the rules’), the learned trial Judge was right in allowing the defendant/respondent to dispute the allegations of fact contained in paragraph 3 of the statement of claim dated 21st May, 1996 by the production and exhibition of (a) the certificate of ownership and encumbrance of the MT REAL PROGRESS and (b) the Lloyds Register of Ships both attached to the defendant/respondent’s application dated 16th September, 1996”.

The respondent agreed with the issues as formulated by the appellant. Order 27 of the Federal High Court Rules applicable to this appeal provides:
“1 Where a defendant conceives that he has a good defence or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendant, he may raise this defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.
2. For the purposes of such application the defendant shall be taken as admitting the truth of the plaintiff’s allegations, and no evidence respecting such matters of facts and no discussion of questions of fact, shall be allowed.
3. The Court, on hearing the application shall either dismiss the suit or order the defendant to answer the plaintiff’s allegations of fact, and shall make such order as to costs as the Court deems just”.
(Italics mine)
Under the above provisions of Order 27, a defendant proceeding under the rule shall be taken as admitting the truth of the allegations of fact contained in the plaintiff’s statement of claim. See Nwadiaro & Ors v. Shell Petroleum Dev. Com. Of Nigeria Ltd. (1990) 5 NWLR (Pt. 150) 322, Fidelis Oguchi & Anor v. Federal Mortgage Bank of Nigeria Ltd (1990) NWLR (Pt. 156) 330 and Ege Shipping & Trading Industry Incor. & Ors. v. Tigris International Corporation (1999) 14 NWLR (Pt. 637) 70.

The respondent’s counsel in his brief clearly conceded the point that, it was not open to the defendant at the lower court to contest the allegations of fact in the statement of claim. He argued however that excerpt of the Lloyd’s Shipping Register which is annexed to the ‘Motion’ he brought before the lower Court could not be regarded as a disputation on the facts. Rather, he argued that the Lloyd’s Shipping Register is the authority on the ownership of vessels and that it is so universally recognised as such that it has now been elevated to the level of a published legal work. Respondent’s counsel argued thus in his brief:
“The Lloyd’s Register of Shipping is today the world’s most authoritative source of information as to the ownership, management, etc, of any ocean-going vessel and these are published in 3 large volumes annually, together with a number of supplements to take care of charges in the course of the year. They are like published legal works such as  books by learned authors and law reports and this is why me submit with respect that the issue of ownership is one of a legal requirement and is the most authoritative source together by any of the parties, least of all, the respondents not the ship in question both all ocean-going vessels in the world.

The respondent submitted the whole relevant volume of about 700 pages as page of the authorities they believe the court may not have in its library for the use of the learned trial Judge and the same is still available for the inspection/use of this Honourable Court. It is submitted that of the opinions of authors and decided cases (without regarding such as evidence) as judicial precedents, it can also refer to and rely on the Lloyd’s register of Shipping in determining who is the owner of any particular ship. I respectfully urge your lordship so to hold”.

The argument of Mr. Femi Atoyebi above is ingenious and alluring but still I must reject it. The plaintiff in paragraph 3 of the statement of claim pleaded the ownership of the vessel that caused the damages complained of thus:
“3. The defendant is a company incorporated in Nigeria and owner of the vessel MT REAL PROGRESS”.
(Italics mine)

For the purpose of the proceedings covered by Order 27, the defendant was to be taken as admitting the truth of the averment that the vessel MT REAL PROGRESS belonged to the defendant. It was this fact that the defendant sought to dispute by filing with his ‘motion’ excerpts of Lloyd’s register. The attempt by the respondent’s counsel to equate the Lloyd’s register with legal books and judicial cases overlooks the fact that the essential procedure for a court before which legal or other authorities are cited is to first ascertain and settle the facts in controversy before applying such legal or other authorities to the facts as found or ascertained. In the instant case, it was first necessary for the lower court to determine as a matter of fact the question of ownership of the vessel MT REAL PROGRESS. In the manner that Order 27 rule 2 is expected to operate, it was a settled fact that the vessel MT Real progress belonged to the Defendant.

The Lloyd’s Register could not therefore be used to displace such settled fact which the defendant must be deemed to have admitted under Order 27. The argument that the Lloyd’s register is authoritative on the issue of ownership of an ocean-going vessel in the circumstances is untenable. It seems to me that the defendant ought to have filed a statement defence and raised therein that the defendant was not the owner of the vessel. The matter would then be resolved by evidence at the trial. Perhaps then, the defendant would be able to rely on Lloyd’s Register as the relevant evidence as to ownership of the vessel.

The lower court in its ruling said on the point:
“It is obvious from the above provisions that the applicants cannot swear to an affidavit as the objection relates to matters of law. From the entry in the Lloyd’s Register for 1994-1995, it is quite patent that the Defendants are not the legal or equitable owners of the vessel MT ‘REAL PROGRESS’ at the material time.
The actual owners as contained therein are a company known as Tathon Inc. of Monrovia, Liberia. Now where is it disclosed in the said Register that the Katlander Nigeria Ltd. are the owners of the said vessel. No one is suggesting that the plaintiff’s dredger did not suffer some damages. But the point of the applicants’ contention is that the offending vessel does not belong to them. So that if the action goes for trial, there is no way the plaintiff could have succeeded in holding the defendants liable for a vessel. Which is perhaps another way of saying that the wrong defendants have been handled to court. That is the essence of the entry on the Lloyd’s Register which validates the applicants’ contention. This prima facie evidence has not been rebutted and there is no suggestion that the applicant are sued in any other capacity”.

With respect to the learned trial Judge, I think he was in error. The error arose in my view because he did not fully advert his mind to the fictional situation created by Order 27 that all allegations of fact pleaded by a plaintiff shall be taken as the truth. Once the allegations made by the plaintiff in the statement of claim are taken as truth, no room exists for those allegations of fact to be set against the prima evidence of ownership of the vessel which the Lloyd’s Register represented. There can be no degree of what is true in the con of Order 27. Since the rule provides that the allegation that the defendant owned the vessel MT REAL PROGRESS was the truth, there was no longer any reason to rely on the Lloyd’s register for what is truer than the plaintiff’s allegations.

Clearly, the lower court should have struck out the defendant’s application which was expressed to have been brought under Order 27.
This appeal succeeds. The ruling of the lower court given on 10-12-96 is set aside. In its place, I make an application striking out the defendant/applicant’s motion. The appellant is entitled to costs which I fix at N3,500.00. It is ordered that the defendant file a statement of defence so that the suit may proceed further to hearing without prejudice to the rights of the parties to bring such other applications as are provided for in the Rules of Court or any other law.

Other Citations: (2000)LCN/0762(CA)