LIVERPOOL AND LONDON STEAMSHIP PROTECTION AND INDEMNITY ASSOCIATION LTD. V. M/T TUMA & ORS
(2011)LCN/4704(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of July, 2011
CA/L/517/08
RATIO
PRELIMINARY OBJECTION: WHETHER A PRELIMINARY OBJECTION POSES A QUESTION THAT HAS TO BE DETERMINED OR SETTLED BEFORE THE COURT GOES INTO THE MAIN MATTER BEFORE IT
…a preliminary objection usually poses a question that has to be determined or settled before the Court goes into the main matter before it. In some cases it may determine the entire suit and in others part of the issues before the court may be determined at that stage thus narrowing the issues left for trial. See Oroh v. Buraimoh (1990)2 N.W.L.R. (pt.134) 641; Elabanjo v. Dawodu (supra). PER JOHN INYANG OKORO, J.C.A.
ISSUE OF JURISDICTION: ESSENCE OF AN OBJECTION TO THE JURISDICTION OF THE COURT TO ENTERTAIN A MATTER
An objection to the jurisdiction of the court, as I said earlier, is a threshold issue. It goes to the root of adjudication, and touches on the competence of the court to entertain the matter. Where it is raised, it has to be taken first before taking any further steps in the matter. Where a court lacks the jurisdiction to entertain a matter, the whole proceedings including the Judgment and Orders made therein are a nullity ab-initio. See Ojukwu v. Ojukwu (2008) 18 N.W.L.R. (pt.1119) 439; Owners of MV “Arabella” v. N.A.I.C. (2008) 11 N.W.L.R. (pt. 1097) 182. This issue can be raised at any time, even when there are no pleadings filed and a party raising such an objection need not bring application under any rule of court as in this case. See Elabanjo v. Dawodu (supra) at p. 117 paragraph A-11. The application can be brought under the inherent jurisdiction of the court. Once raised, the court has power to entertain it notwithstanding that the only process filed is the Writ of Summons or an affidavit in support of an interlocutory application. See Arjay Ltd, v. A.M.S. Ltd. (2003) 7 N.W.L.R. (pt.820) 577. An issue of jurisdiction need not be pleaded once it can be obvious from the materials before the court and can be raised by a party or even suo motu by the court. See Kotoye v. Saraki (1994) 7 N.W.L.R. (pt.357) 414. PER JOHN INYANG OKORO, J.C.A.
STATUTE OF LIMITATION: EFFECT OF A CAUSE OR MATTER THAT IS STATUTE BARRED ON THE JURISDICTION OF THE COURT
… I wish to state that where a cause or matter is statute barred, it robs the court of its jurisdiction to entertain same. In Emiator v. The Nigerian Army (1999) 12 N.W.L.R. (pt.631) 362at 372, it was held by the Supreme Court that where an action is statute barred, the court has no jurisdiction to entertain it. Also in Ajayi v. Military Administrator of Ondo (1997) 5 N.W.L.R. (pt.504) 237 at 254, it was held inter alia that:- “The issue of whether or not an action has been statute barred is one touching upon the jurisdiction of the court. For once an action has been found to be statute barred, although a Plaintiff may still have his cause of action, his right of action, that is, his legal right to prosecute that action has been taken away by statute. In that circumstance, no court has jurisdiction to entertain his action.” PER JOHN INYANG OKORO, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 251(1) (G) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AS TO THE COURT CONFERRED WITH THE JURISDICTION TO ENTERTAIN ALL MATTERS AND CAUSES RELATING TO ADMIRALTY OR MARITIME CLAIMS
Section 251(1) (g) of the constitution of the Federal Republic of Nigeria states: “Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters – (g) Any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterways as may be designated by any enactment to be an international waterway, all Federal Ports (including the constitution and powers of the ports authorities for Federal Ports) and carriage by sea”. By the above provision of the 1999 Constitution of the Federal Republic of Nigeria, it is beyond conjecture that the Federal High court has exclusive jurisdiction in all Admiralty or Maritime claims, including general maritime claims. See Ports and Cargo Handlings Services Company Ltd & 3 Ors v. MIGFO Nig. Ltd. (2009) 11 N.W.L.R. (pt.1153) 611; Brawal Shipping Nig. Ltd. v. Extraction and Commodity Services Ltd. (2001) 14 N.W.L.R. (pt.732) 172; KLM Roya Dutch Airlines v. Kumzhi (2003) FWLR (pt.184) 317; Alraine Shipping Ltd. v. Endura Auto Chemicals (2002) FWLR (pt.96) 486. PER JOHN INYANG OKORO, J.C.A.
LIMITATION LAW: TIME ALLOWED FOR INSTITUTING AN ACTION ARISING OUT OF A MARITIME INSURANCE CONTRACT
The time limited for the commencement of this action under Section 18(1) (b) of the Admiralty Jurisdiction Act 1991 is 3 years from the date the cause of action arose. In this case, the cause of action arose on 19th of October, 2001 when the insurance cover was terminated. This suit was not commenced until 5th December, 2006, a period clearly outside the 3 years limited by the Admiralty Jurisdiction Act 1991. A cause of action which comes with maritime claim must be commenced within three years of the accrual of the cause of action. PER JOHN INYANG OKORO, J.C.A.
LIMITATION LAW: ESSENCE OF THE PARTY HAVING A CLAIM AGAINST ANOTHER TO PURSUE SAME WITH REASONABLE DILIGENCE WITHIN THE TIME ALLOWED BY LAW OR THE RULES OF COURT
… a party who has a claim against another must pursue same with reasonable diligence within the time allowed by law or the rules of court, failure of which will render such claim stale and unenforceable. See Seleba v. Mobil Producing Nig. Ltd. (2006) 12 N.W.L.R. (pt.995) 634. As was rightly espoused in Unity Bank Plc v. Nwadike (2009) 4 N.W.L.R. (pt.1127) 56, the Jurisprudence of the doctrine of statute bar as encapsulated in the various limitation laws is that no matter how credible or good a claim is, when it is not brought timorously, it abates and no relief can validly be brought to enforce a stale claim. PER JOHN INYANG OKORO, J.C.A.
JUSTICE
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
JOHN TNYANG OKORO Justice of The Court of Appeal of Nigeria
Between
1. LIVERPOOL AND LONDON STEAMSHIP PROTECTION AND INDEMNITY ASSOCIATION LTD.Appellant(s)
AND
1. M/T TUMA
2. PIPELINES & PRODUCT MARKETING COMPANY LIMITED
3. NIGERIAN NATIONAL PETROLEUM CORPORATTONRespondent(s)
JOHN INYANG OKORO, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court Lagos in Suit No. FHC/L/CS/1037/2006 delivered by I. N. Auta, J. (as he then was) on 30th March, 2007. By a writ of Summons and Statement of Claim dated 5th December, 2006, the Appellant, as Plaintiff instituted the action giving birth to this appeal against the Respondents as Defendants claiming the sum of US $517,808.56 (Five Hundred and Seventeen Thousand, Eight Hundred and Eight United States Dollars, Fifty Six Cents) being the total outstanding amount and interest owed by the Respondents on insurance cover provided by the Appellant for the vessel “M/T Tuma” on certain insurance policies,
Due to the failure of the 2nd and 3rd Respondents to satisfy the demands of the Appellant to liquidate the outstanding amounts, the Appellant terminated the insurance cover by issuing Notice of Termination dated 19th October, 2001. Subsequently, the Appellant issued a Writ of Summons claiming the abovementioned sums. In response to the Suit, the Respondents filed a Notice of Preliminary Objection dated 16th January, 2007 seeking a dismissal of the Suit filed by the Appellant on the grounds inter alia that the right of action was statute barred having not been brought within three years of the accrual of the cause of action as required by the Admiralty Jurisdiction Act, 1991.
On 30th March, 2007, the learned Trial Judge delivered Ruling on the Preliminary Objection upholding same and dismissed the Appellants’ action. Dissatisfied with the Ruling of the Court below, the Appellant filed a Notice of Appeal dated 15th June, 2007. The said Notice contains three Grounds of Appeal.
In keeping with the Rules of this Court, parties filed and exchanged briefs. They thereafter adopted and relied on these briefs on 17th May, 2011 when this appeal was heard.
In the brief settled by Olaotan Silva Esq. of P. O. Akinrele & Co., Counsel for the Appellant, two issues are distilled from the three grounds of appeal. The issues are:-
“1. Whether the Notice of preliminary objection filed by the Respondents is competent in the absence of a Statement of Defence.
2. Whether the Limitation Law of Lagos state is applicable to this case and if so, whether the Plaintiff’s right of action is statute barred”.
The Respondents, in their brief prepared by O. T. Opara (Mrs.), adopt the two issues formulated by the Appellants. I shall therefore determine this appeal based on the two issues submitted by the parties. Let me say here that the Appellant also filed a Reply brief which shall be considered at the appropriate time in the course of this Judgment.
On the first issue, the learned Senior Counsel, A. Akinrele (SAN) leading A. Nkadi Esq. and J. Onigbogi (Mrs.) for the Appellant submitted that the decision of the learned Trial Judge is contrary to the provisions of the Rules of the Federal High Court, particularly Order 25, Rules 1, 2 & 3 thereof.
It is his contention that demurrer proceedings have been abolished and substituted with procedure in lieu of demurrer which has been given judicial recognition, relying on the cases of Lasisi Fadare & Ors v. Attorney General of Oyo State (1982) ALL NLR 26; Shell Petroleum Development Company Ltd. v. Nwawka (2001) 10 N.W.L.R. (pt.720) 64; M.V. “Delos” v. Ocean Steamship Nig. Ltd. (2004) 17 N.W.L.R. (pt.901) 88. Learned Counsel explained and submitted further that in the procedure in lieu of demurrer, as envisaged in Order 25 of the Federal High Court Rules, 2000, the Defendant needs not admit the claim; he has to file a defence to the claim before raising his objection. Therefore, he opined, none observance of Order 25 in filing an application objecting to the Suit is not a mere technicality as held by the Court below, but renders the application incompetent and liable to be struck out.
Learned Senior Counsel concedes that an objection to the jurisdiction of a Court constitute an exception to the above rule under consideration since the law is that a challenge to the jurisdiction of the court can be brought at any time even if the only thing that has been filed is the Writ of Summons; citing Attorney General of Kwara State v Olawale ( 1993) 1 N.W.L.R. (pt.272) 670 and Nigeria Deposit Insurance Corporation v. Central Bank of Nigeria & Anor. (2002) 7 N.W.L.R. (pt.766) 272. However, according to learned Senior Counsel, where the objection to the court’s jurisdiction is based on such points of law as statutory limitation, estoppels, cause of action and abuse of process, the Defendant must first file a statement of defence before bringing the objection, otherwise, the application is incompetent relying on Order 26 Rule 6 of the Federal High Court (Civil Procedure) Rules 2000. He then urged this court to hold that the failure of the Respondents to file a statement of defence before bringing the objection is a fundamental defect, which renders the application incompetent and liable to be struck out and that the case of Famfa Oil Ltd. v. Ali Federation (2003) 18 N.W.L.R. (pt.852)453 relied upon by the learned Trial Judge is inapplicable here.
In her reply, the learned counsel for the Respondents, O. T. Opara (Mrs.) leading A. O. Bammefe (Miss) submitted that it is misleading to equate demurrer with preliminary objection to jurisdiction. That the issue of jurisdiction is not a matter for demurrer proceedings and that it is much more fundamental than that. Counsel opined that it does not follow that the Defendant/Applicant must plead first in order to raise the issue of jurisdiction: She cites and relies on the authorities of Attorney General of Kwara State v. Olawale (supra) and NDIC v. CBN (supra) which were cited by the Appellant’s Senior Counsel.
It was the further submission of learned counsel that the Notice of Preliminary Objection filed on 16/1/01 by the Respondents is not demurrer at all. Referring further to the cases of Elabanjo v. Dawodu (2006) 15 N.W.L.R. (pt.1001) 76; D. EN. R. Ltd. & 2 Ors. V. Trans International Bank Ltd & 2 Ors. (2008) 18 N.W.L.R. (pt.1119) 399 and John Ebosade Emator V The Nigerian Army (1999) 12 N.W.L.R. (pt.631) 362, learned counsel submitted that the argument that because the issue or point of law that an action is statute barred or caught up with limitation law cannot be brought by way of motion or preliminary objection is untenable and does not avail the Appellant. She relies further on the case of Chief Yakubu Sani v. okene Local Government Traditional council (2008)50 WRN 149. She urged the court to resolve this issue in favour of the Respondent.
In the Appellants’ Reply brief filed in answer to the Respondents, argument on this issue, it was contended that matters that are required by law to be specifically pleaded must be pleaded before they can be raised as a point of objection. Learned Counsel for the Appellant urged this court in paragraph 2.6 of the said reply brief to rely on and act on the dissenting Judgment of Onnoghen, JSC in Elabanjo v. Dawodu (supra).
The Notice of Preliminary objection dated and filed on 16/1/07 as contained on pages 169-169 of the Record of Appeal is for: –
“An order dismissing as and or striking out this suit as this Honourable Court lacks jurisdiction to entertain the suit.”
As the name implies, a preliminary objection usually poses a question that has to be determined or settled before the Court goes into the main matter before it. In some cases it may determine the entire suit and in others part of the issues before the court may be determined at that stage thus narrowing the issues left for trial. See Oroh v. Buraimoh (1990)2 N.W.L.R. (pt.134) 641; Elabanjo v. Dawodu (supra).
In the instant case, the preliminary objection which the court below decided has to do with the jurisdiction of the court to entertain the matter. Jurisdiction, being a threshold issue, the learned Trial Judge decided to take it first and held that he had no jurisdiction and dismissed the Appellant’s claim on the ground that it was statute barred. The Appellant herein is now challenging the competency of the said Notice of preliminary Objection on the ground that the Respondents failed to file their statement of defence in accordance with Order 25 of the Federal High Court (Civil Procedure) Rules 2000 before filing the said Notice. As I had highlighted while summarizing the submission of the learned senior counsel for the Appellant, the main plank of the Appellant’s argument is that since demurrer has been abolished, the Preliminary objection was incompetent.
Order 25 Rules 1, 2 and 3 of the Federal High Court (Civil Procedure) Rules 2000, states:-
“1. No demurrer shall be allowed.
2 (i) A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
(ii) A point of law so raised may, by consent of the parties, or by order of the court or a Judge in chamber on the application of either party, be set down for hearing and disposed of at any time before the trial.
3. If, in the opinion of the court or a Judge in chambers the decision of the point of law substantially disposes of the whole action, or any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the court or Judge in chambers may thereupon dismiss the action or make such other order therein as may be just,”
By the above rule of the Federal High Court, demurrer Proceedings has been abolished. The rules now provide for proceedings in lieu of demurrer. What this means is that an Applicant who desires to raise a point of law as a preliminary issue, is required to set out such issue in the statement of defence before such application in lieu of demurrer can be raised. Failure to set out such an issue in the statement of defence will render such an application in lieu of demurrer incompetent. See Mobil oil (Nig.) Plc v. L.A.L 36 Inc (2000) 6 N.W.L.R. (pt.659) L46. Under demurrer proceedings, the party raising same contends that even if all the allegations in the statement of claim are true, it still does not in law disclose a cause of action for the party contending to answer, It follows that the party who demurred would not proceed to file statement of defence but having raised the point of law as to whether any case had been made out in the Plaintiffs’ pleadings for him to answer, he awaits the decision of the court on that point. See Bambe v. Aderinola (1977) 1SC 1. The simple difference between the now abolished demurrer proceedings and proceedings in lieu of demurrer is that in the former, the Defendant need not file statement of defence but in the later, a statement of defence is a since qua non for an Applicant wishing to raise preliminary issues for trial. See Okoye v. NCF Co. Ltd. (1991) 6 N.W.L.R. (pt.199) 501.
In the instant appeal, the Appellant herein raised a preliminary objection on the issue of jurisdiction simpliciter on the ground that the suit before the court below is statute barred among others. Although the learned senior counsel for the Appellant in paragraph 4.7 of his brief concedes that objection to the jurisdiction of the court constitute an exception to Order 25 of the Federal High court Rules, he however contended that where the objection to the court’s jurisdiction is based on such points of law as statutory limitation, the defendant must first file a statement of defence citing Order 26 Rule 6 of the Federal High Court Rules 2000.
The said Order 26 Rule 6(1) states:-
“A party shall plead specifically any matter (for example performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which, if not specifically pleaded might take the opposite party by surprise.”
As I understand the above rule of court, it has nothing to do with proceedings in lieu of demurrer but on pleadings simpliciter. The said Order 26 Rule 6 enjoins parties to specifically plead matters they intend to ventilate in court in order not to spring surprises on opposing parties. Under it, examples of matters to be specifically pleaded are stated. They do not in any way have connection with proceedings in lieu of demurrer.
In any case, it must be made clear that there is a distinction between demurrer and objection to jurisdiction. Sometimes, these two concepts are confused. This distinction was clearly set out by the Apex Court in Nigeria Deposit Insurance Corporation v. Central Bank of Nigeria & Anor. (2002) 7 N.W.L.R. (pt.766-272) per Uwaifo, JSC where his Lordship stated that –
“The tendency to equate demurrer with objection to jurisdiction could be misleading. It’s a standing principle that in demurrer, the Plaintiff must plead and it is upon that pleading that the Defendant will contend that accepting all the facts pleaded to be true’ the Plaintiff has no cause of action, or, where appropriate, no locus standi … But as already shown, the issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a Plaintiff may plead as facts to prove the reliefs he seeks, What it involves is what will enable the Plaintiff to seek a hearing in court over his grievance and get it resolved because he is able to show that the court in empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.”
An objection to the jurisdiction of the court, as I said earlier, is a threshold issue. It goes to the root of adjudication, and touches on the competence of the court to entertain the matter. Where it is raised, it has to be taken first before taking any further steps in the matter. Where a court lacks the jurisdiction to entertain a matter, the whole proceedings including the Judgment and Orders made therein are a nullity ab-initio. See Ojukwu v. Ojukwu (2008) 18 N.W.L.R. (pt.1119) 439; Owners of MV “Arabella” v. N.A.I.C. (2008) 11 N.W.L.R. (pt. 1097) 182.
This issue can be raised at any time, even when there are no pleadings filed and a party raising such an objection need not bring application under any rule of court as in this case. See Elabanjo v. Dawodu (supra) at p. 117 paragraph A-11. The application can be brought under the inherent jurisdiction of the court. Once raised, the court has power to entertain it notwithstanding that the only process filed is the Writ of Summons or an affidavit in support of an interlocutory application. See Arjay Ltd, v. A.M.S. Ltd. (2003) 7 N.W.L.R. (pt.820) 577.
An issue of jurisdiction need not be pleaded once it can be obvious from the materials before the court and can be raised by a party or even suo motu by the court. See Kotoye v. Saraki (1994) 7 N.W.L.R. (pt.357) 414.
In the instant case, the learned Trial Judge held that this suit was caught by statute of limitation and as such he lacked jurisdiction to entertain same. Whether or not the suit was statute barred, is not the business in this first issue. It shall be considered in the second issue. But for now I wish to state that where a cause or matter is statute barred, it robs the court of its jurisdiction to entertain same. In Emiator v. The Nigerian Army (1999) 12 N.W.L.R. (pt.631) 362at 372, it was held by the Supreme Court that where an action is statute barred, the court has no jurisdiction to entertain it. Also in Ajayi v. Military Administrator of Ondo (1997) 5 N.W.L.R. (pt.504) 237 at 254, it was held inter alia that:-
“The issue of whether or not an action has been statute barred is one touching upon the jurisdiction of the court. For once an action has been found to be statute barred, although a Plaintiff may still have his cause of action, his right of action, that is, his legal right to prosecute that action has been taken away by statute. In that circumstance, no court has jurisdiction to entertain his action.”
Clearly, this is the anchorage of the preliminary objection by the Respondents at the court below. Honestly, this is not a case of demurrer at all. It is an objection to jurisdiction which the Respondents were entitled to raise before the court below without filing any statement of defence.
The argument of learned senior counsel for the Appellant that failure to file statement of defence first renders the Notice of Preliminary Objection incompetent, is a clear misconception of the law. An objection to the jurisdiction of a court can be taken on the basis of the statement of claim, or it can be taken on the evidence received or by a motion on Notice supported by an affidavit giving the facts upon which reliance is placed. This should not be confused with demurrer. See Elabanjo v. Dawodu (supra); Kasikwu Fams Ltd. v. Attorney General of Bendel State (1986)1 N.W.L.R. (pt.19) 695; Arjay Ltd. v. Airline Management Support Ltd. (2003) 7 N.W.L.R. (pt.820) 577.
All I have endeavoured to say above in respect of issue I is that the Notice of Preliminary Objection filed by the Respondent in the court below without filing a statement of defence, is competent. The 1st issue is accordingly resolved in favour of the Respondents.
The second issue is whether the Limitation Law of Lagos State is applicable to this case and if so, whether the Plaintiff’s right of action is statute barred.
The learned senior counsel for the Appellant concedes in paragraph 4.15 of their brief that the Appellant’s action in the lower court is an admiralty action to which Section 18 of the Admiralty Jurisdiction Act, 1991 applies. He however submits that the learned Trial Judge was in error in his finding that the Limitation Law of Lagos State does not apply to Suits instituted in the Federal High Court in reaching the decision that the Suit was statute barred. It was his contention that the issue of limitation of actions is a residual matter over which only a state legislature can legislate. Since, according to him, it is not contained in the exclusive legislative list or the concurrent legislative list of the constitution. Learned senior counsel then submitted that Section 18 of the Admiralty Jurisdiction Act 1991 is a default provision, whatever that means.
In further adumbrating on the issue, Learned Senior Counsel asked whether this claim could have been brought otherwise than as a maritime claim to which he gave a big YES for an answer. That the claim could have been instituted in the Lagos State High Court as a simple contract of insurance for which the Limitation Law Cap L 67, Laws of Lagos State would apply. It follows, he opined, that the right of action inherent in any action founded on contract brought after the expiration of a period of 6 years calculated from the time of the cause of action arose is statute barred, referring to Section B of the said Law. He posited that the Limitation Laws of Lagos State (supra) is also applicable to proceedings before the Federal High Court. He relies on the case of Etim v. Inspector General of Police (2001)11 N.W.L.R. (pt.724) 266.
In conclusion, learned senior counsel submitted that applying the above submission (ie. the applicable law on limitation of action being the limitation Laws of Lagos State and the applicable limitation period being six years vide Section 8 thereof) to the facts of the instant appeal, the suit was not statute barred at the time of institution at the Federal High Court. That the cause of action arose on 19th October, 2001 when the insurance cover was terminated, which was 5 years and 2 months before the suit was commenced on 5th December, 2006. He urged the court to resolve this issue in favour of the Appellant.
Responding to the above submissions, the learned counsel for the Respondents contended that by virtue of Section 251 (i) (g) of the Constitution of the Federal Republic of Nigeria 1999, Admiralty Jurisdiction is vested solely on the Federal High Court.
Therefore, all incidental claims arising from a ship which is maritime in nature go to the Federal High court. On the submission that this matter could have been heard at the Lagos State High Court being a simple contract of insurance, she submitted that, that is not the position of the law. Making reference to section 2(1) and 2(3) (q) of Admiralty Jurisdiction Act, 1999, learned counsel posited that a claim for an insurance premium or for a mutual insurance call, in relation to a ship, or goods or cargoes carried by; ship is a general maritime claim under the exclusive jurisdiction of the Federal High Court. She refers to the following cases: – P & C.H.S.C. v. MIGFO Nig. Ltd. (2009) 11 N.W.L.R. (pt.1153) 611; KLM Royal Dutch Airlines v Kumzhi (2003) F.W.L.R. (pt.184) 317 and Alraine Shipping Ltd v Endura Auto Chemicals (2002) F.W.L.R. (pt.96) 486.
Submitting further learned counsel argued that the insurance contract between the Appellant and the Respondents is not just a simple insurance contract but a marine insurance contract. She refers to and relies on Section 3 of the Marine Insurance Act Cap M2 Laws of the Federation, 2004.
Furthermore, learned counsel posited that Section 18 of the Admiralty Jurisdiction, Act 1991 limits the period for bringing an action to three years from the date the cause of action arose and that in this present claim the cause of action accrued to the Appellant since 19th October 2001 but that this action was not filed until 5th of December, 2006. This action, having been commenced outside the 3 years allowed under the law, it is statute barred. She cites and relies on the followings cases: –
Seleba v. Mobil Producing Nig. Ltd. (2006) 12 N.W.L.R. (pt.995) 634; Unity Bank Plc v. Nwadike (2009) 4 N.W.L.R. (pt. 1127) 56.
In conclusion, it was learned counsel’s submission that in any case, Section 4 of the Limitation Law of Lagos State provides that an action for which a period of Limitation is fixed by another enactment is not covered by it. She then urged this court to resolve this issue against the Appellant.
By way of a rejoinder, the Appellant in his reply brief, though largely a re-argument of the second issue, submitted that the intention of Section 18 of the Admiralty Jurisdiction Act 1991 is to preserve the limitation period applicable by general law to the contract between the parties. That if the general law does not prescribe a limitation period, then the suit should be filed within three years under the “default provisions” of Section 18 of the said Act. He cites and relies on Louis Nnamdi Mbanefo: Nigerian Shipping Practice and Procedure (1994 Lomanc Books) Chapter 21 at pp. 92-93,
There are two sub-issues to be decided in this issue. First is whether this matter is triable by the Lagos State High Court or the Federal High Court and secondly whether Section 18 of the Admiralty Jurisdiction Act 1991 or the Limitation Law of Lagos State Cap 167 Laws of Lagos State 2003, applies. I shall consider first which court has jurisdiction in the matter.
The aspect of this court trying to find out what type of action was filed at the court below has been made easy as both the Appellant and Respondents agree that it is an admiralty action.
On page 10 of the Appellant’s brief paragraph 4.15, the learned senior counsel for the Appellant states:-
“It is conceded that the Plaintiff’s action in the lower court is an admiralty action to which Section 78 of the Admiralty Jurisdiction Act, 1991 applies”.
Again at paragraph 4.16 thereof, it is further argued:
“The Appellant concedes that (and as was rightly held by the learned Trial Judge) this matter is a maritime claim as it involves the in rem admiralty jurisdiction of the Federal High Court. The Appellants’ claim in the lower court was for insurance premium owed it by the 2nd and 3rd Respondents in relation to a ship (the M/T Tuma) and by virtue of Section 2(3) (q) of the Admiralty Jurisdiction Act, the claim is a general maritime claim. The Admiralty Jurisdiction Act 1991 applies to in rem and in personam maritime claims instituted in the Federal High Court and since the claim is specie of an “in rem maritime claim” the Admiralty Jurisdiction Act applies. ”
I cannot agree more. However and in spite of the above position taken by the learned senior counsel for the Appellant, he somersaulted and argued that this is a matter for the Lagos State High Court being a simple insurance contract. The intention of this argument, in my opinion, is to take the matter out of the sphere of admiralty proceedings in order to escape the provision of Section 18 of the Admiralty Jurisdiction Act 1991. Or how else can one explain the sudden volte face by the learned senior counsel?
Section 2(i) & (3) of teh Admirality Jurisdiction Act 1991 provides:-
“(i) A reference in this Act to a maritime claim is a reference to a proprietary maritime claim or general maritime claim.
(3) A reference in this Act to a general maritime claim is a reference to –
(q) A claim for an insurance premium, or for a mutual insurance call, in relation to a ship, or goods or cargoes carried by a ship”.
Clearly, from the above provisions and the argument and admission of counsel in their briefs, this matter is no other than a general maritime claim which is for insurance premium as defined in the Act. Being a maritime claim, can this matter be ventilated at the Lagos State High Court as argued by the learned senior counsel for the Appellant? I do not think so. Section 251(1) (g) of the constitution of the Federal Republic of Nigeria states:-
“Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –
(g) Any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterways as may be designated by any enactment to be an international waterway, all Federal Ports (including the constitution and powers of the ports authorities for Federal Ports) and carriage by sea”.
By the above provision of the 1999 Constitution of the Federal Republic of Nigeria, it is beyond conjecture that the Federal High court has exclusive jurisdiction in all Admiralty or Maritime claims, including general maritime claims. See Ports and Cargo Handlings Services Company Ltd & 3 Ors v. MIGFO Nig. Ltd. (2009) 11 N.W.L.R. (pt.1153) 611; Brawal Shipping Nig. Ltd. v. Extraction and Commodity Services Ltd. (2001) 14 N.W.L.R. (pt.732) 172; KLM Roya Dutch Airlines v. Kumzhi (2003) FWLR (pt.184) 317; Alraine Shipping Ltd. v. Endura Auto Chemicals (2002) FWLR (pt.96) 486.
Quite apart from this, the claim before the court below cannot be described as a simple contract of insurance. It is much more than that. It is provided for in the Marine Insurance Act Cap MZ Laws of the Federation 2004, Section 3 thereof defines marine insurance as a contract whereby the insurer undertakes to indemnify the assured, in manner and to the extent thereby agreed, against marine losses, that is to say, the losses incident to marine adventure. This type of insurance is in a class of its own. It is the subject matter in the claim that differentiates and distinguishes it from other insurance claims. Since this action could not have been commenced as a simple insurance contract, but only as a marine insurance contract, it therefore means that the suit could not have been instituted at the Lagos State High Court but only at the Federal High Court. It should therefore be taken out of contemplation that this is a matter which could have been heard at the Lagos State High Court as it has no jurisdiction to entertain the matter.
The other sub-issue is whether the action was statute barred as was held by the court below. Again, both counsels agree that Section 18 of the Admiralty Jurisdiction Act 1991 applies to this claim. I had above reproduced part of the argument of the learned senior counsel for the Appellant on the matter. I need not repeat it here. Section 18 of the Admiralty Jurisdiction Act 1991 provides: –
“18(1) A proceeding may be brought under this Decree on a maritime claim or on a claim on maritime lien, or other charge, at any time before the end of –
(a) The limitation period that would have been applicable to the claim if a proceeding on the claim had been brought otherwise than under this Decree; or
(b) If no proceeding on the claim could have been so brought, a period of 3 years after the cause of action across.
2. The provision of subsection (1) of this section shall not apply if a limitation period is fixed in relation to the claim by any enactment or law”.
It was the contention of the learned senior counsel for the Appellant that this claim falls within sub paragraph (a) of Section 18(1) of the Admiralty Jurisdiction Act, 1991. By way of elucidation, that it is a simple insurance contract which could ordinarily be heard at the Lagos State High Court so that the Limitation period of 6 years stipulated in the Limitation Law of Lagos State could apply and not Section 18(1) (b) of the Admiralty Jurisdiction Act 1991. I think we should not be going forward and backward or blow hot and cold at the same time. It is already established that this is not a simple insurance contract but a maritime insurance contract under the Jurisdiction of the Federal High Court. Section 251(1) (g) of the 1999 Constitution of the Federal Republic of Nigeria has squarely taken this matter out of reach of any State High Court. The truth is that the claim cannot be a proceeding other than as directed under the Admiralty Jurisdiction Act 1991 and Section 251(a) (g), of the 1999 Constitution of the Federal Republic of Nigeria. Therefore, the Limitation Law of Lagos State which provides for 6 years in matters relating to simple contract is not applicable in this matter, since it is solely a maritime claim which falls exclusively within the jurisdiction of the Federal High Court.
It is my respective view and I also hold that the court below was right in holding that this claim was statute barred. The time limited for the commencement of this action under Section 18(1) (b) of the Admiralty Jurisdiction Act 1991 is 3 years from the date the cause of action arose. In this case, the cause of action arose on 19th of October, 2001 when the insurance cover was terminated. This suit was not commenced until 5th December, 2006, a period clearly outside the 3 years limited by the Admiralty Jurisdiction Act 1991. A cause of action which comes with maritime claim must be commenced within three years of the accrual of the cause of action.
Let me emphasise that a party who has a claim against another must pursue same with reasonable diligence within the time allowed by law or the rules of court, failure of which will render such claim stale and unenforceable. See Seleba v. Mobil Producing Nig. Ltd. (2006) 12 N.W.L.R. (pt.995) 634. As was rightly espoused in Unity Bank Plc v. Nwadike (2009) 4 N.W.L.R. (pt.1127) 56, the Jurisprudence of the doctrine of statute bar as encapsulated in the various limitation laws is that no matter how credible or good a claim is, when it is not brought timorously, it abates and no relief can validly be brought to enforce a stale claim.
In conclusion; I hold that the limitation law of Lagos State is not applicable to this claim. Rather it is Section 18(1) (b) of the Admiralty Jurisdiction Act 1991 which applies. Accordingly, the Appellants claim before the lower court as was held by the court below is statute barred and unenforceable. I also agree with the court below that the said claim be dismissed. Issue 2 is accordingly resolved in favour of the Respondent.
In summary, having resolved the two issues against the Appellant, this appeal lacks merit and is hereby dismissed. I affirm the decision of the Federal High court, Lagos in suit no. FHC/L/CS/1037/06 delivered by I. N. Auta, J. (as he then was) on 30th March, 2007, which upheld the preliminary objection of the Respondents. The Respondents are entitled to costs. Accordingly, I award costs of N30, 000.00 against the Appellants and in favour of the Respondents.
CLARA BATA OGUNBIYI, J.C.A.: I have read in draft the lead judgment just delivered by my brother John Inyang Okoro (JCA) and I agree that the appeal is benefit of any merit, my brother has adequately dealt with both issues raised therein the appeal comprehensively and I have nothing useful therefore to add. I also dismiss same in terms of the orders made in the lead judgment inclusive of that made as to costs.
HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the judgment just delivered by my learned brother Okoro, JCA with which I am in absolute agreement and hereby adopt the meticulous resolution of the two issues against the appellant leading to the obvious conclusion that the appeal is devoid of merit and ought to be dismissed.
I subscribe to all the consequential orders made in the judgment
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Appearances
A. Akinrele (SAN) with A. Nkadi Esq. & J. Onigbogi (Mrs.)For Appellant
AND
O. T. Opara (Mrs.) with A. O. Bammeke (Miss)For Respondent
