The M. V. “med Queen” & Ors V. J. B. Erinfolami (2007)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
By a writ of summons dated and filed on the 4th October, 1999, the respondent herein claimed against the appellants jointly and/or severally the sum of N822, 00.00 being special and general damages for non use and negligent damage by the appellants as hirers of the respondent’s forklift since 3rd July, 1999. The writ of summons and the statement of claim dated 30th September, 1999 and filed on the 4th October, 1999 were served on the appellants. A memorandum of appearance dated 16th November 1999 was filed on the 14th November, 1999 on behalf of the appellants. Thereafter, the appellants filed a motion on notice on the 21st of January, 2000 in which they sought for an order setting aside the service of the writ of summons and the statement of claim on the 1st and 2nd appellants herein. The grounds upon which their application is founded as set out in their motion paper read:-
“1. The proceedings instituted against the defendants was commenced as an action in rem.
- That the 1st and 2nd defendants were at the time of the issuance and service of the writ of summons and statement of claim outside the Jurisdiction of this Honourable Court.
- That service of the writ of summons and statement of claim were not effected on the 1st and 2nd defendants in the manner prescribed by law.”
After having heard both parties on the motion on notice, Ukeje J., the leamed Chief Judge of the Federal High Court in a considered ruling held that by Section 16(3) of the Admiralty Jurisdiction Act 1991, an agent of a vessel can properly be served with court processes instead of his principal. Accordingly, the learned trial Judge dismissed the motion and ordered for the commencement of hearing of the substantive suit.
It is against this ruling that the appellants, who are the defendants in the substantive suit that is still pending before the lower courts have appealed to this court. Their notice of appeal, which is dated 4th November, 2002 and filed on the 8th November, 2002 contains three grounds of appeal. These grounds of appeal, without their particulars read as follows:-
“A. The learned Chief Judge erred in law when she held that, “By virtue of Section 16 of the Admiralty Jurisdiction Act, an agent of a vessel can properly be served instead of his principal.
B. The learned Chief Judge did not avert her mind to the provisions of Order 5 rules 1,7 and 8 of the Admiralty Jurisdiction Procedure Rules 1993, cited by counsel which prescribes the mode and/or manner of service of processes on defendants.
C. The learned Chief Judge erred in law when she assumed jurisdiction to hear the plaintiff’s claim on the ground that the claim for damage to the plaintiff’s forklift constituted a general maritime claim within the meaning of section 2(3)(k) of the Admiralty Jurisdiction Act.”
In line with the relevant rules of this court, parties filed and exchanged briefs of argument. This appeal came up for hearing on the 19th February, 2007. Mr. Babajide Koku, learned counsel for the appellants identified the appellants’ brier of argument dated and filed on the 5th April, 2004 and the appellants’ reply brief dated and filed on 8th September, 2004. Learned counsel adopted the two briers and relied on the argument contained therein. Finally, learned counsel urged this court to allow the appeal. In reply, Mr. C. I. A. Okafor, learned respondent’s brief of argument dated and filed on the 15th July, 2004. Learned counsel adopted the brief of argument and relied on the argument contained therein and urged the court to affirm the decision of the lower court by dismissing the appeal.
From the three grounds of appeal, the appellants formulated two issues for the determination of this appeal. These issues are set out at page of the appellants’ brief of argument and they read as follows:-
- Whether service of a writ of summons issued in rem against a vessel or a person resident outside the court jurisdiction can be deemed proper service if left with a local agent within jurisdiction.
- Whether the claim for non-use and negligent damage to the plaintiff’s forklift constituted a general maritime claim within the meaning of section 2(3)(k) of the Admiralty Jurisdiction Act, 1991, thereby falling within the purview of the jurisdiction of the Federal High Court.”
The respondent on the other hand also formulated two issues for the determination of this appeal. These issues which are at pages 1-2 of the respondent’s brief of argument read as follows:-
“1. Whether the hiring of the respondent’s forklift by the appellants to enable them discharges cargo from their vessel which resulted in negligent damage to the said forklift by the 1st appellant can validly come under the Admiralty Jurisdiction of the Federal High Court.
- Whether the court below, having regard to the procedural difficulties involved in admiralty actions can validly grant the appellants’ prayers in view of the respondent’s application for leave to amend,”
The law is settled that issues for determination must arise from the grounds of appeal. Where a respondent does not file a cross appeal, the issues for determination formulated by him must relate to the grounds of appeal filed by the appellants. Where such issues for determination are not related to the grounds of appeal, they will be liable to be struck out. See Takum L.G. v. U.C.B (Nig) Ltd (2003) 16 NWLR (Pt.846) 288 at 298-299 paragraph G-B: Williams v. Daily Times (Nig.) Ltd.(1990) 1 NWLR (Pt.124) 1 and Falola v. Union Bank of Nig. Plc (2005) 7 NWLR (Pt.924) 405 (2005) 2 SC. (Pt.11) 62 at 72.
In the instant appeal, the 2nd issue for determination which the respondent formulated is not related to any of the three grounds of appeal. None of the three grounds touched on the respondent’s application for leave to amend, nor is there anything in the grounds of appeal that complains about the procedural difficulties involved in Admiralty actions which would work against the court in granting the appellants’ prayers, The motion to amend, which is mentioned herein, does not form part of the record of this appeal and it is not mentioned in any of the grounds of appeal. The 2nd issue therefore and all the argument canvassed thereon are incompetent and are accordingly struck out
The two issues formulated by the appellants have adequately taken care of the only surviving respondent’s issue, I will therefore resolve this appeal on the two issues formulated by the appellants, in doing so, I will treat the 2nd issue first This is so because the 1st issue for determination is predicated on whether the main claim constitute a general maritime claim within the meaning of section 2(3)(k) of the Admiralty Jurisdiction Act, 1991, For if at the end of the day, it is resolved that the main claim does not fall within the general maritime claim, the issue of service in accordance with the Admiralty Jurisdiction Procedure Rules will not arise, In other words, the jurisdiction of the lower court to entertain the suit is under scrutiny, Where an issue of jurisdiction of a court is raised, same must be resolved first this is so because the jurisdiction of a court or tribunal is fundamental to the efficacy of its decisions, Consequently, a decision of a court or tribunal made without jurisdiction confers no right and does not create any obligation. See University of Ilorin v. Adeniran (2003) 17 NWLR (Pt. 849) 214.
In arguing this issue, Mr. Babajide Koku, learned counsel for the appellants submitted that the cause of action formulated by the plaintiff does not fall within the purview of the Admiralty Jurisdiction as set out in section 2 of the Admiralty Jurisdiction Act, 1991 and therefore the Federal High Court lacks the jurisdiction to entertain the suit Learned counsel therefore urged this court to allow the appeal
In reply, Mr.C I. A. Okafor learned counsel for the respondent submitted that the respondent’s claim at the lower court clearly comes under S, 2(3)(k) of the Admiralty Jurisdiction Act 1991 as a general maritime claim and the Federal High Court was therefore right in assuming jurisdiction over the suit. Learned counsel urged this court to dismiss this appeal.
On the question as to whether the respondent’s claim falls within the Admiralty Jurisdiction of the Federal High Court, the learned trial Chief Judge, after examining the provisions of section 2(3)(k) of the Admiralty Jurisdiction Act of 1991 and the dictionary meaning of ‘Lighterage’ concluded as follows:-
“From the foregoing, I am convinced that the claim for damage to the plaintiff’s forkliit is a general maritime claim within the meaning of section 2(3)(k) of the Admiralty Jurisdiction Act. I therefore hold that the plaintiff’s claim is a general maritime claim within section 2(3)(k) of the Admiralty Jurisdiction Act. 1991.”
It is trite law that jurisdiction of a court is firstly determined by reference to the claim endorsed in the writ of summons and/for statement of claim. Other factors to be considered by the court before assuming jurisdiction are:-
“1. whether the claim discloses a cause of action:
- whether the subject matter of the action is within the jurisdiction of the court:
- whether the plaintiff is competent to bring the action: and
- whether the court is not otherwise disqualified either in its membership or enabling statute to adjudicate.
See Int’l Nigerbuild Const. Co. Ltd. v. Giwa (2003) 13 NWLR (Pt. 836) 69 at 97 paragraphs C-F: Anya v. Ijayi (1993) 7 NWLR (Pt.305) 290: McLaren v. Jennings (2003) 3 NWLR (Pt. 808) 470: Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 and Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156.
In this appeal, the contention of the appellants is that the respondent’s claim as endorsed in the writ of summons does not come within the ambit of the general maritime claim within the meaning of section 2(3)(k) of the Admiralty Jurisdiction Act 1991.
Even at the risk of repetition, I wish to set out the respondent’s claim again for the purpose of clarity thus:-
“The plaintiff’s claim against the defendants jointly and/or severally is for the sum of N822, 000.00 (Eight hundred and twenty-two thousand naira) being special and general damages for the non use and negligent damage by the defendants as hirers of the plaintiff’s forklift since 3rd July, 1999. And the plaintiff claim the sum N6,000.00 (Six Thousand Naira only) per day as demurrage from 9th August, 1999 for non use of his forklift until the disposal of his suit”
Section 2(3)(k) of the Admiralty Jurisdiction Act, 1991 provides as follows:-
“A reference in this Act to a general maritime claim is a reference to a claim in respect of goods, materials or services (including stevedoring and lighterage service) supplied or to be supplied to a ship for its operation or maintenance.”
From the provision of Section 2(3)(k) of the Admiralty Jurisdiction Act, a claim in respect of goods, materials or services supplied or to be supplied to a ship for its operation and maintenance is a general maritime claim. Such claim includes stevedoring and lighterage services.
Stevedoring is out of question here, because it concerns the services of a person employed in loading and unloading vessels.
Lighterage is also defined by Black’s Law Dictionary as the business of transferring merchandise to and from the vessels by means of lighters. Lighter here is a small vessel with or without engine operated by a lighter man who is either a master or owner of a lighter who is liable as a common carrier. The claim of the respondent at the lower court has nothing to do with lighterage services. The question now is whether the claim of the respondent is in respect of goods, materials or services supplied or to be supplied to a ship for its operation and maintenance.
The forklift was not supplied for the operation and maintenance of the ship (1st appellant). It was hired by the appellants to offload goods from the 1st appellant. The forklift neither offered a lighterage service nor was it goods or material supplied to the 1st appellant for its operation and maintenance. The learned trial Judge wrongly construed the meaning of S. 2(3)(k) of the Admiralty Jurisdiction Act 1991 and therefore came to a wrong conclusion that the claim of the respondent came under the said section and therefore a general maritime claim. The respondent’s claim is founded upon a contract of hire of his forklift by the appellants and by S. 1(1) of the Admiralty Jurisdiction Act. 1991, such claim does not fall within the Admiralty Jurisdiction of the Federal High Court. Accordingly, the Federal High Court has no Jurisdiction to hear and determine the suit pending before it. This issue is therefore resolved in favour of the appellants and the ground upon which it was formulated is hereby allowed.
With the resolution of the of the 2nd issue for determination in favour of the appellants, a consideration of the first issue becomes superfluous. Surely, where a court lacks jurisdiction to entertain any matter it also lacks jurisdiction to issue any process in respect of the same matter. Accordingly, the service of the writ of summons and the statement of claim against any of the appellant was done without jurisdiction and therefore a nullity.
On the whole, this appeal succeeds and it is allowed. The ruling of the lower court in which it affirmed jurisdiction over the respondents’ claim is hereby set aside and quashed. I make no order as to costs.
Other Citations: (2007)LCN/2277(CA)
