Tiga Green Farms Agricultural (Nig.) Ltd V. Mitsui O. S. K. Lines Ltd & Anor (2005)
LawGlobal-Hub Lead Judgment Report
GARBA, J.C.A.
This appeal is against the ruling of the Federal High Court in suit No. FHC/L/CS/1362/96 delivered on 31st October, 1997 in which the court struck out the suit on the ground that the appellant/plaintiff had no locus standi to sue.
The order was made in demurrer application by the respondent/defendant and the appellant being dissatisfied therewith, filed a notice of appeal on 21/11/97 containing 3 grounds. The appellant, with the leave of court, filed an amended notice of appeal on the 6/6/02 also containing 3 grounds as follows:
“3.1 Error in law
The learned trial Judge erred in law in admitting exhibit FA1 attached to the motion on notice dated 15/5/97 (demurrer proceedings) in evidence and in relying on it.
Particulars of error
The learned trial Judge failed to appreciate that in a demurrer proceedings a defendant/applicant is not allowed to tender any evidence; and that it is only the averment in the statement of claim that shall be relied upon and considered.
3.2 Error in law
The learned trial Judge erred in law in holding that the appellant had no locus standi to sue under the Bill of Lading number MOLU 430163491.
Particulars of error
a. There is a clear and unambiguous averment in paragraph ‘6’ of the statement of claim that the plaintiff/appellant was at all material time an endorsee of Bill of Lading No. MOLU 430163491 to whom property in the cargo passed upon by reason of the endorsement.
b. The learned trial Judge failed to appreciate that: the plaintiff/appellant’s payment of freight and demurrage to the 1st defendant/respondent; and the 1st defendant/respondent’s delivery of the goods to it imports a contract of carriage by sea between the appellant and the 1st respondent under the Bill of Lading No. MOLU 430163491.
Error in law
The learned trial Judge erred in law in misconstruing the facts of the cases of Sea Trade v. Fiogret Ltd. (1987-1990) 3 NSC 465; Adesanya v. Leight -Hoegh & Co. (1968) 1 All NLR 333.
Particulars
The facts in the Sea Trade case (supra), Adesanya v. Leigh -Hoegh & Co. (supra) and the undisputed facts in the instant case are not the same.”
Briefs were settled and the appellant’s counsel formulated the following issues for determination:
“2. Issues for determination
2.1. Whether the learned trial Judge was right in admitting in evidence and relying on a Bill of Lading No. MOLU 430163491 (exhibit FA1) exhibited by the respondents in a demurrer proceedings?
2.2. Whether the learned trial Judge was right in holding that the plaintiff/appellant has no locus standi to maintain this action inspite of the averment in paragraph 6 of its statement of claim that: it was at all material time an endorsee of Bill of Lading No. MOLU 43016491 to whom property in the cargo (goods) was passed upon or by reason of the endorsement, an averment which the defendants/respondents admitted?
2.3 Assuming that the demurrer proceedings could be entertained so as to permit the use and reliance on oral or documentary evidence, was the learned trial Judge right in not implying a contract of carriage between the appellant and the 1st respondent under the terms of the Bill of Lading No. MOLU 430163491?”
Learned counsel for the respondents on his part at page 5 of his brief, raised only one (1) issue for determination. It is thus:
“Whether the lower court was right in holding that the plaintiff/appellant has no right of suit (locus standi) against the defendants/respondents herein?”
After setting out the issues formulated by the appellant, Learned counsel for the respondent submitted at pages 3-4 of his brief that issue No.1 did not arise or was not covered by any of the original grounds of appeal and urged us to discountenance the issue. Learned counsel cited the following cases: Dieli v. Iwuno (1996) 4 NWLR (Pt.445) 622 at 633; Paye v. Gaji (1996) 5 NWLR (Pt.450) 589 at 598; Global Transport Oceanico S.A. v. Free Enterprises (Nig.) Ltd. (2001) 5 NWLR (Pt.706) 426 S.C. at 438; Brawal Shipping Ltd. v. F. I. Onwadike & Co. (2000) 11 NWLR (Pt.678) 387 S.C. at 407. In addition, counsel contended that the issue is a fresh point which was not raised in the court below and the appellant did not obtain the necessary leave of court to raise same. He cited the case of Global Transport Oceanico SA v. Free Enterprises (Nig.) Ltd. (2001) 5 NWLR (Pt. 706) 426 at 438 and further said that the case of Brawal Shipping Ltd v. F. I. Onwadike & Co. (2000) 11 NWLR (Pt.678) 387 at 407, cited by appellant counsel in his brief, was not applicable to the issue No.1 formulated by appellant.
In a response to the preliminary issues raised by the respondents/counsel, the appellants/counsel filed a reply brief in which he submitted that issue No.1 was covered by and arose from ground 3: 1 of the amended notice of appeal and that appellant was granted leave by this court on 20/1/03 to argue fresh points as issues 1, 2 and 3 being issues not raised in the lower court. Counsel referred to the case of Global Transport v. Free Enterprises (supra) cited by respondent’s counsel and said it is not helpful.
Without any difficulty whatsoever, it is clear that the objections or submissions of respondent’s counsel on the issue No.1 formulated by the appellant are untenable on the face of the records of proceedings of 25/1/03 and the grounds on the amended notice of appeal referred to earlier in this judgment filed by the appellant. I therefore find that the issue is adequately covered and arose from the grounds contained on the amended notice of appeal and appellant was granted leave by this court on 25/1/03 to raise fresh points not being issues raised in the lower court. The issue is accordingly properly raised before us and the case cited by respondent on the issue is not helpful to them. Now from the grounds contained on the amended notice of appeal of appellant, issues 1 and 2 formulated by it would adequately deal with the real complaint and fully dispose of this appeal.
Respondent’s only issue has the same substance as the appellants’ issue No.2. I would therefore deal with these issues as formulated by the appellant in the determination of this appeal.
Issue No. 1:
Whether the learned trial Judge was right in admitting in evidence and relying on a Bill of Lading No. MOLU 430163491 (exhibit FA1) exhibited by the respondents in demurrer proceedings?
The appellant’s submissions were that the trial Judge was in error in admitting and relying on the bill of lading attached to the respondent’s motion on notice in a demurrer proceedings. Appellants’ counsel referred to pages 54, lines 8-10 and 58, lines 7-10 of the record of appeal and said that in demurrer proceedings, the taking or assessment of evidence whether documentary or oral is not allowed. In addition, counsel argued that a defendant is not permitted to file a statement of defence or to rely on it and it is not allowed to tender evidence. He cited the case of Fadare v. Attorney-General of Oyo State (1982) 4 SC 1; Federal Capital Development Authority v. Naibi (1990) 3 NWLR (Pt.138) 270 at 281; Brawal Shipping Ltd. v. F. I. Onwadike Co. Ltd. (2000) 11 NWLR (Pt.678) S.C. 387 at 407.
Learned counsel specifically referred to pages 406 and 407 of the last case, which he said was on all fours with the case before the trial court. In that case, the 1st defendant/appellant made an application for an order to dismiss or strike out the suit as against it on the grounds that the plaintiffs not having been named as either the consignee or endorsee of the relevant bill of lading on which their claim was based, and/or if so named, having endorsed to another party, has no locus standi to institute and/or maintain the action as was constituted. It attached to the motion on notice two (2) copies of the bills of lading, pleaded by the plaintiff as exhibits FA1 and FA2.
The learned trial Judge held that he was entitled to look at the bills of lading in a demurrer proceedings since they were pleaded in the statement of claim and dismissed the suit. This court allowed the appeal against that ruling with an order that the 1st defendant answers the claim. The Supreme Court unanimously dismissed the appeal against the judgment of this court and at the mentioned pages of the report, Uwaifo, J.S.C. held that:
“It is not part of our procedure as it is in England to attach documents pleaded to the statement of claim so as to make them possible to be read at once along with the pleading as was certainly the case in Day v. William Hill. Neither Adesanya nor B.G.C.C. v. C.M.I.S. nor Lawal v. G.B.O. in which evidence was taken at the trial went as far as to suggest that such documents that are pleaded could be attached to the pleading directly or by affidavit or that they may be exhibited by whatever means to make them part of the pleading. It seems to me that if that is done for the purpose of demurrer proceeding, that would be introducing evidence in order to decide it rather than basing it only on the facts pleaded in the statement of claim. The principle is that only those facts as pleaded should be considered at that stage on the assumption that they are accepted by the defendant as true …”
Learned counsel therefore urged us to find that the lower court was wrong to have used and relied on the copy of the bill of lading exhibit FA1 in the proceedings before it to find that appellant had no locus standi to maintain the action as constituted. He also prayed us to set aside the finding based on the use of such evidence as exhibit FA1.
On his part, the learned counsel for the respondents, at paragraph 4.5 of his brief said that the respondents are not oblivious of the above decision of the Supreme Court which came after the ruling of the lower court, but maintained that the case was not applicable to appellant’s issue No. I since it was not properly raised in this appeal.
In view of the earlier finding that the appellant’s issue No. 1 was properly raised in this appeal, it would appear that the respondents have no answer to the submissions of the appellant on the issue. Indeed, the respondents did not even attempt to answer the submissions on the issue and so are deemed to have admitted or at least conceded them as they have done in paragraph 4.8 of their counsel’s brief.
The procedure in and nature of demurrer proceedings are fairly simple and now established by many judicial decisions, including the case of Brawal Shipping v. Onwadike (supra). In such proceedings, a defendant is neither permitted to file a statement of defence nor rely on it, neither is he to tender evidence. He is taken to have accepted all the facts stated by the plaintiff as established but rely on some points of law which defeat the case put forward by those facts. In essence, in a demurrer proceeding, the rule enjoins a defendant to accept all the relevant averments of facts by a plaintiff for the purpose of demurrer but it gives him the right to contend that notwithstanding those facts, some legal points or issues of law deny the plaintiff a hearing or the reliefs he claims although no evidence to back that contention, is permissible at this stage. In the above case, also reported in (2000) FWLR (Pt.29) 1257 at 1276 paragraphs B-C, pg. 407 of NWLR para. G. Uwaifo, J.S.C., in the lead judgment said:
“It seems to me, therefore, that any procedure adopted which involved the taking or assessing of evidence, whether documentary or oral, would be outside the procedure for demurrer and accordingly would be irregular.”
In an earlier case of Williams v. Williams (1995) 2 NWLR (Pt.375) 1 at page 17 Iguh, J.S.C. had put the principle of demurrer clear as follows:
“It is trite law that whenever a demurrer is raised before trial, a defendant shall be taken as having admitted all the allegations of fact contained in the plaintiff’s claim and accordingly, no evidence respecting matters of fact shall be allowed…”
(Italicising mine).
In yet another Supreme Court case of Mobil Oil Plc. v. IAL 36 Inc. (2000) FWLR (Pt. 10) 1632 at 57, (2000) 6 NWLR (Pt.659) 146 in which the same Order 27 of the Federal High Court (Civil Procedure) Rules, 1976, as in the present appeal, was dealt with, Ayoola, J.S.C. at page 1657 hit the nail right on the head when he held thus: –
“In a demurrer application under Order 27, Federal High Court (Civil Procedure) Rule 1976, only points of law may be taken or argued. Evidence in respect of matters of fact in rebuttal of the averments in the plaintiff’s statement of claim is neither permissible nor allowed.”
This position was taken a step further in the later case of Boothia Maritime Inc. v. Fareast Mercantile Co. (2001) 9 NWLR (719) 572 at 599, by Ogwuegbu, J.S.C. when he said:
“In an application under Order 27, the filing of an affidavit in support of the demurrer is unacceptable as it is a written statement of facts on oath sworn or affirmed before someone who has authority to administer it … It is mandatory that affidavit used in court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true. It will therefore be a contravention of rules 1 and 2 of Order 27 to permit an affidavit supporting an application in demurrer proceedings. An affidavit contains facts alone and a defendant is precluded from answering any questions of fact raised in the statement of claim since he is taken to have admitted the truth of the plaintiff’s allegations and no evidence respecting matters of fact and no discussion of questions of fact are allowed.”
Put in simple and short way, his Lordship’s view is that a defendant is not permitted to file an affidavit in support of an application in demurrer proceedings since he is taken to have admitted all the averments of facts in the plaintiff’s statement of claim. In addition to these authorities, see Nwadiaro v. Shell Development Company Ltd. (1990) 5 NWLR (Pt. 150) 322, Martins v. Fed. Administrator General (1962) All NLR 120, (1962) 1 SCNLR 209; Ecu-Line NV v. Adelekan (2001) 10 NWLR (Pt. 721) 261.
This court, relying on the above authorities had held in the case of M.V Mustafa v. Afro Asian Impex Ltd. (2002) 14 NWLR (Pt. 787) 395, at 406 that:
“In demurrer proceedings, preliminary objection can be taken after the statement of claim but before the defence is filed. The party, normally the defence, relies on points of law, while conceding on the issues of facts in challenging the claim. Put in other words, the facts as contained in the statement of claim are deemed admitted and the defendant is precluded from adducing or resorting to any other evidence. howbeit, to establish the objection. The court is also precluded. at this stage, from looking at any document excepting the statement of claim.” See also Horizon Fibres Plc. v. M. V Baco Liner 1 (2002) 8 NWLR (Pt. 769) 466 at 492-3.
Coming to the present appeal, the respondents have conceded in paragraph 4.8 of counsel brief as seen earlier, that they were not allowed or permitted to rely on any evidence, in particular exhibit FA1 attached to their motion on notice before the lower court, in demurrer proceedings. In addition, from the above authorities, it is also clear that the lower court at the stage was precluded from looking at any document except the statement of claim in determining the objection raised by the respondents in such proceedings. The use by that court of the exhibit FA1 in its ruling in the demurrer proceedings before it, as contained on pages 54 and 58 of the record of appeal was therefore not permitted and outside the established realm or such proceedings.The finding of the court based on that use of the evidence it was not supposed to have looked at, was clearly an error in law and so wrong. Consequently, the answer to the 1st issue must be and is in the negative; i.e., that the learned Judge was wrong in admitting and relying on FA1 in the demurrer proceedings before it. I therefore resolve issue No.1 in favour of the appellant.
Issue No.2:
Whether the learned trial Judge was right in holding that the plaintiff/appellant has no locus standi to maintain this action inspite of the averment in paragraph 6 of its statement of claim that it was at all material time an endorsee of bill of lading No. MOLU 430163491 to whom property in the cargo (goods) was passed or by reason of endorsement, an averment which the defendants/respondents admitted.
Appellant’s submission on the issue was that the finding of lower court that it had no locus standi was perverse having regard to the law on demurrer adopted by the respondents. It was contention of appellant that since respondents were taken to have admitted all the statements of facts in the statement of claim, and the averments show that at all material times plaintiff was the endorsee of Bill of Lading No. MOLU 430163491 to whom property in the cargo passed upon or by reason of endorsement, it had a right to maintain the suit as constituted. Appellant said further that under section 375(1) of the Merchant Shipping Act, Cap. 224, Laws of the Federation of Nigeria, 1990 relied on by the respondent to contend that appellant had no locus standi, it had a right to sue with admission of the statement of claim by respondent. The section provides as follows: –
“375(1) Every consignee of goods named in a bill of lading, and every endorsee of a bill to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or endorsement shall have transferred to and vested in him all right of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself.”
Finally, appellant submitted that the learned trial Judge erred in holding that it had no locus standi to maintain the suit as constituted.
In his brief, the learned counsel for the respondent did not specifically answer the submissions of appellant on issue No.2. He merely went on to address what was said in relation to the issue No.3 formulated by the appellant. Counsel did not say or suggest that he was addressing even the issue formulated for the respondent on whether the lower court was right in holding that the appellant/plaintiff has no right of action against the respondents/defendants.
It may be recalled that I had earlier said respondent’s issue was in substance, the same with appellant’s issue No.2. In the absence of clear specific and emphatic answer to the submissions of appellant’s counsel on the issue No.2, the respondents are once more deemed to have conceded the points raised therein. See Okongwu v. NNPC (1989) 4 NWLR (Pt.115) 296 where Nnaemeka-Agu, J.S.C. said:
“every material point canvassed in an appellant’s brief which is not countered in the respondent’s is deemed to have been conceded to the appellant.”
I would like to add that in the demurrer procedure adopted by respondent, having admitted the facts contained in the appellants statement of claim, particularly paragraph 6 thereof, the respondents had mutedly conceded the right of the appellant to initiate or commence and maintain the action as constituted. Paragraph 6 of the appellant’s statement of claim, on page 9 of the record was in the following terms: –
“6. The plaintiff was at all material times owner of the eargo and the indorsee of the bill of lading referred to in paragraph 5 (supra) to whom property in the cargo passed upon or by reason of the indorsement.”
The Bill of Lading No. MOLU 430163491 was referred to in paragraph 5 of the statement of claim to which paragraph 6 also made reference.
With admission of the above statement of fact by the respondents in the proceedings before the lower court, no support can be found for the finding of that court that appellant has no locus standi to maintain the action particularly with the provisions of the section 375(1) of the Merchant Shipping Act set out above, relied on by respondents.
Indeed, the finding that the lower court had gone outside the purview of demurrer proceedings in the issue No. 1 appeared to have knocked off the bottom from the entire findings by that court in the case. It was the same evidence, i.e., copy of bill of lading attached to the respondent’s motion as exhibit FA1 which the lower court was not permitted or allowed to use in the circumstances, that was permitted and used by the court to conclude that appellant has no locus standi on the ground that it was neither a consignee nor endorsee but merely a “notify party”. The 1st issue was central and the crucial one in the determination or this appeal because it primarily relates to demurrer proceedings and the two issues: 1 and 2 are tied one to the other. Having resolved the issue No.1 in appellant’s favour, the issue No.2 in the circumstances of this appeal mentioned above ought to be and is also resolved in the appellants’ favour.
Issue No.3:
I had said at the beginning of this judgment that issues 1 and 2 formulated by the appellant are adequate to fully dispose of the appeal.
The issue No.3, in view of the resolution of issues No.1 and 2, is now merely academic and no longer material to the final determination of the appeal.
Though this court in particular, being an intermediate court, was enjoined to make a pronouncement one way or the other on all issues raised properly before it, there are exceptions to that duty.
For instance, the general attitude of courts to issues though properly raised, but not directly relevant to the determination of the controversy, dispute or complaint in an appeal is to merely say so and deal with the real and crucial issues. In cases where issues raised could still arise at the trial or retrial or fresh action, then an appellate has no duty to pronounce them. See Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527 at 550-1.
The issue No.3 in this appeal is merely speculative which speculation has now been debunked and settled by the authorities cited on demurrer proceedings earlier. Consequently, it is not the function of this court to deal with that speculation any more. See Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 at 330; NICON v. Power and Industrial Engineering Ltd. (1986) 1 NWLR (Pt. 14) 1 at 22.
In the final result, after resolving the issues raised in favour of the appellant, I find merits in this appeal. The appeal is allowed and the ruling of the Federal High Court striking out the appellant’s suit No. FHC/L/CS/1362/96 on ground of lack of locus standi on the part of the appellant is hereby set aside. The suit is remitted back to the Federal High Court to be heard before another Judge thereof.
N10,000 as costs assessed in favour of the appellant.
Other Citations: (2005)LCN/1710(CA)
