MAERSK NIGERIA LIMITED V. UMA INVESTMENT COMPANY LIMITED
(2013)LCN/6036(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2013
CA/PH/638/2008
RATIO
ADMIRALTY LAW: LIMIT OF THE JURISDICTION
The mere fact that goods of 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. See the cases of Texacco oversees Petroleum unlimited v. Pedmar Limited (2002) F.W.L.R Part 126 Page 885 of 887 and Aluminum Manufacturing Co. Ltd v. N.P.A (1987) 1 N.W.L.R Part 51 page 475 of 486 para. G. Where the Supreme Court held: “It would amount to a ridiculous interpretation to say that because the goods had been carried in a ship, any claim for damages or loss occurring after completion of the journey by sea to ………… occurring anywhere on land falls within the paragraph”.PER MODUPE FASANMI, J.C.A.
CONSTITUTIONAL LAW: SECTION 251(1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA; JURISDICTION OF THE FEDERAL HIGH COURT AS REGARDS MATTERS OF ADMIRALTY
Section 251 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999 as amended provides:
(1) “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 effluents and on such other inland waters as may be designated by any enactment to be on international waterway, all federal ports (including the Constitution and powers of the ports authorities for federal ports) and carriage by sea”
From the provision reproduced above, I am unable to see how the suit has violated the provision of Section 251 (1) (g) of the 1999 Constitution. The scope of the Admiralty Jurisdiction Act 1991 deals with maritime claim.PER MODUPE FASANMI, J.C.A.
ADMIRALTY: CLAIMS BORUGH WITHIN THE JURISDICTION OF THE FEDERAL HIGH COURT COVER ONLY GOODS THAT MUST HAVE BEEN LOST WHEN THEY WERE BEING CARRIED IN A SHIP AS CARGO AND NOT AFTER THEY HAVE BEEN UNLOADED FROM THE SHIP
For a claim to be brought within the admiralty jurisdiction of the Federal High Court, the goods concerned must have been lost when they were being carried in a ship as cargo and not after they have been unloaded from the ship. In other words, any claim which arises from acts or omissions of third parties after the agreement (relating to the carriage of goods in a ship or the use or hire of a ship) has been executed or terminated does not come within the admiralty or civil jurisdiction of the Federal High Court.
I am therefore on the same page with the learned trial Judge in his finding of page 180 of the record when he states that:
“In the circumstances the court is of the opinion….that the claim is for a simple contract of hire totally devoid of any maritime colouring and cannot come within the Admiralty, or civil jurisdiction of the Federal High Court”.PER MODUPE FASANMI, J.C.A.
JUSTICES
EJEMBI EKO Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
MAERSK NIGERIA LIMITED Appellant(s)
AND
UMA INVESTMENT COMPANY LIMITED Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the ruling of the Rivers State, High Court of Justice, sitting in Port Harcourt. The ruling was delivered on the 3rd of July, 2006 wherein the court dismissed the preliminary objection filed by the Appellant challenging the Jurisdiction of the High Court of Rivers State to hear the suit of the Respondent as Plaintiff in the said court.
The Respondent commenced the suit no. PHC/1176/2005 before the High Court of Rivers State by writ of Summons issued on 18th October, 2005 and an affidavit of claim dated the same day. Leave was granted for the suit to be heard under the undefended list procedure on 14th November, 2005. The Respondent claimed before the High Court of Rivers State against the Appellant as follows:
(a) Payment of sum of N1,650,905.00 (One Million, Six Hundred and Fifty Thousand, Nine Hundred and Five Naira) only being and representing money owed the plaintiff as refundable container deposits mode to the Defendant by the Plaintiff.
(b) Interest on the said sum of the prevailing bank rate per annum with effect from when it become due until judgment.
(c) Interest in the said sum of the rate of 10% per annum after judgment and until the debt is paid.
The Appellant through its counsel simultaneously filed a notice of intention to defend accompanied by a four paragraph affidavit as well as a notice of preliminary objection dated and filed on 8th December, 2005. The Appellant’s notice of preliminary objection challenging the jurisdiction of the High Court of Rivers State was hinged on the following grounds:
(a) The Plaintiff’s claim in this suit which arose out of an agreement for the carriage of goods by a ship in which Plaintiff on behalf of certain consignee allegedly paid deposits to the Defendant for the use of the containers used for the shipment of the goods is by virtue of the combined provisions of Section 251 of the Constitution of the Federal Republic of Nigeria 1999 and Section 1 (i) (a), 2 & (3) and 2 (3)(e) and (f) of the Admiralty Jurisdiction Act 1991 within the Admiralty jurisdiction exclusive to the Federal High Court.
(b) That this Honourable Court lacks the requisite jurisdiction to entertain this suit as same is not within the jurisdiction conferred on this Honourable Court under Section 272 of the Constitution of the Federal Republic of Nigeria 1999 by virtue of Section 251 thereof.
(c) That by virtue of the above provisions, this Honourable Court ought to strike out this suit for lack of jurisdiction.
(d) That by the judicial interpretation given to Section 78 of the Companies and Allied Matters Act 1990, this Honourable Court is divested of the requisite competence to hear and determine this suit, the originating process thereof having been served at the Defendant’s branch office (sic) and on a person not in the category listed under the Companies and Allied Matters Act 1990.
The Respondent in turn on 20/12/2005 filed a further and better affidavit in support of the claim and also filed a counter affidavit on 22/12/2005 to the notice of the preliminary objection to which the Appellant filed a Reply on 8/2/2006.
Both counsel filed written arguments on the application. The arguments are on pages 145 – 154 and 162 – 166 of the record of appeal. On July 3rd 2006, the Hon. Justice T. K. Osu delivered the ruling subject of this appeal assuming jurisdiction to hear and determine the Respondent’s claim.
Appellant being dissatisfied with the ruling, filed its notice of appeal on the 14th July, 2008. In accordance with the rules of the court, Appellant’s brief of argument was filed on the 17th of Feb.2009 but was deemed properly filed and served on the 4th of March, 2013. The Respondent’s brief of argument was filed on the 2nd of April, 2009 but was deemed properly filed and served on the 4th of March, 2013.
Appellant distilled a sole issue for determination thus:
Whether the learned trial Judge was right in holding that the Rivers State High Court had jurisdiction to hear and determine the claimant’s suit which is by virtue of Section 251 (1) (g) of the 1999 Constitution of Nigeria,Section 7 (1)(g) of the Federal High Court Act 1973 and Section 19 of the Admiralty Jurisdiction Act (1991) within the exclusive jurisdiction of the Federal High Court.
Learned counsel for the Respondent distilled two issues for determination thus:
(i) Whether the mere transportation of goods which a shipping company has to the Nigeria Ports Authority from the latter’s warehouse by a clearing Agent of a consignee to the consignee’s warehouse using shipping company’s container constitute carriage of goods by sea as contemplated by the combined provisions of Section 251(1) (g) of the Constitution of the Federal Republic of Nigeria 1999 and Section 1 (1) (a) and (3) and 2 (3) of the Admiralty Jurisdiction Act 1991.
(ii) Whether by the decision of the Supreme Court in TEXACO OVERSEAS PETROLUEM UNLIMITED V. PEDMAR LIMITED (2002) F.W.L.R Part 126 page 885 at 887, the High Court of Rivers State was right in dismissing the notice of preliminary objection filed in the suit by the Respondent as Plaintiff in the High Court.
The sole issue formulated by the Appellant is apt and germane to the subject matter of the appeal. The court will therefore determine this appeal on the sole issue formulated by the Appellant.
Issue One
Whether the learned trial Judge was right in holding that the Rivers State High Court had jurisdiction to hear and determine the claimant’s suit, which is by virtue of Section 251 (1) (g) of the 1999 Constitution of Nigeria, Section 7 (1) of the Federal High Court Act 1973 and Section 19 of the Admiralty Jurisdiction Act 1991 within the exclusive jurisdiction of the Federal High Court.
In addressing this issue, learned counsel for the Appellant submitted that two pertinent questions call for consideration:
(a) Are the Respondent’s claims in suit no.PHC/1716/2005 within the Admiralty Jurisdiction reserved for the Federal High Court by Section 251(1)(g) of the CFRM 1999?
(b) Is the High Court of Rivers State entitled to assume jurisdiction in the Respondent’s suit?
Learned counsel for the Appellant submitted that the main claim of the Respondent as shown on page 1 of the Record of Appeal is for the sum of N1,650,905.00 being refund alleged due on container deposit paid by the Respondent to the Appellant. Submitted that the payment of container deposit is o term of contract of carriage by ship which requires the cargo owner or his agent to pay a deposit to the shipping company as consideration for the use of the shipping company’s containers in conveying the goods from the discharge port to the warehouse of the consignee. He submitted further that upon return of the container, the shipping company shall refund the deposit so paid, less any demurrage incurred on the container, to the receiver or his agent.
He submitted further that by paragraphs 2, 3, 4, and 12 of pages 47 of the affidavit in support of the claim, the Respondent allegedly paid the sum being claimed before the High Court of Rivers State pursuant to the container deposit term of the contract for carriage of the containers by ship. Thus the said claim arose out of an agreement for the carriage of the Respondent’s goods by ship. He contended that by Section 2 (3) (f) of the Admiralty Jurisdiction Act 1991. A claim arising out of an agreement relating to carriage of goods by a ship is a general maritime claim. Submitted that the Respondent’s claim in suit number PHC/1716/2005 before the High Court of Rivers State which arose out of an agreement relating to the carriage of the Respondent’s container by a ship, is thus a general maritime claim. The Claims of the Respondent’s which are general maritime claims are by virtue of Section 1 (1) (a) of the Admiralty Jurisdiction Act 1991 within the admiralty jurisdiction of the Federal High Court by virtue of Section 251
(1) (g) of the Constitution of the Federal Republic of Nigeria 1991.
In response to the poser as to whether the High Court of Rivers State is entitled to assume jurisdiction on the Respondent’s suit, learned counsel for the Appellant submitted that by virtue of Section 251 (1) (g) of the constitution of the Federal Republic of Nigeria 1999, jurisdiction the conferred by section 272 of the 1999 constitution on the High court of Rivers State does not include matters within the admiralty jurisdiction and relating to carriage of goods by sea.
A finding that the court lacks jurisdiction would close the gate to any action ab initio. Reliance was placed on the case of Ayman Enterprises Ltd v. Akumo Ind. Ltd (2003) 12 NWLR Part 836 page 22. He submitted that based on the foregoing’ the High court of Rivers State is not entitled to assume jurisdiction in the Respondent’s case.
Learned counsel for the Appellant urged the court resolve the lone issue in favour of the Appellant and allow the appeal.
Learned counsel for the Respondent in response submitted that the learned counsel for the Appellant has not shown particularly in support of his affidavit and argument of the High court, any agreement referred to in para. 2.3 (1) of his brief of argument for this court to determine the applicability of Section 251 of the 1999 Constitution and Section 1(i)(a) and 3 and 2 (3) of the Admiralty Jurisdiction Act 1999. Appellant’s counsel contends that there is an agreement between the parties which is connected with carriage of goods by sea and which by reason therefore clothes the said transaction with on admiralty flavour yet he did not supply the said agreement for the court’s interpretation vis-a-vis the relevant laws. Learned counsel for the Respondent submitted that evidence of material facts as this not pleaded go to no issue. He relied on the case of Atando & Ors v. Ajani & Ors (1989) 6 S.C Part 11 page 87 at 103, 8-9 S.C page 264 of 275. Submitted further that the provisions of Section 251 of the 1999 Constitution and Sections 1 (1) (a) and (3) and 2 (3) (f) of the Admiralty Jurisdiction Act, 1991 are not applicable by virtue of the provisions of Section 272 of the Constitution of the Federal Republic of Nigeria 1999 and by the very nature of transaction vesting the claimant/Respondent with a cause of action.
Learned counsel for the Respondent submitted further that the cause of action is the refusal of the Appellant to release to the Respondent the container deposit as stipulated in the agreement between the parties. Submitted that the instant case is not an admiralty but that it is founded on simple contract of hire. Learned counsel contended further that there is no provision of Section 251 (1) of the 1999 Constitution which seeks to oust the unlimited jurisdiction of the State High Courts. Learned counsel for the Respondent urged the court to hold that the suit is within the jurisdiction of the State High Court. He urged the court to resolve the sole issue in favour of the Respondent, affirm the ruling of the Lower Court and dismiss the appeal.
To resolve the sole issue in this appeal, it will be pertinent to know the nature of the claim of the Respondent as the Plaintiff vis-a-vis Section 251(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 and Section 1 (1) (a) & (3) and 2 (3) (f) of the Admiralty Act 1991 within the admiralty Jurisdiction exclusive to the Federal High Court.
To know the nature of the claim, one has to highlight the paragraphs of the affidavit in support of the claim particularly paragraphs 5, 14 and 16 which state as follows:
Paragraph 5:
“That by the practice of the trade, it is the agent of the importer who pays the said container deposits and gets a refund upon successful return of the container after the goods would have been evacuated”.
Paragraph 14:
“That by the practice of the trade when the container is returned the importer writes on application for the refund of the container deposit and the same letter authorizes the payment to be, made to the agent in this case and marked as exhibit B – B13 respectively”.
Paragraph 16
“That the said containers have since been returned hence the demand for the refund of the said deposit thereof”.
From the facts stated above, it is clear that the cause of action is the refusal of Appellant to pay the Respondent the container deposit paid by the Respondent to the Appellant for the use of the Appellant’s container to deliver the goods or cargo to the consignee. By paragraph 16 of the affidavit in support of the claim, the goods in the instant case have long been discharged and delivered to the consignee by his agent hence Respondent was demanding for a refund of deposit.
The mere fact that goods of 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. See the cases of Texacco oversees Petroleum unlimited v. Pedmar Limited (2002) F.W.L.R Part 126 Page 885 of 887 and Aluminum Manufacturing Co. Ltd v. N.P.A (1987) 1 N.W.L.R Part 51 page 475 of 486 para. G. Where the Supreme Court held: “It would amount to a ridiculous interpretation to say that because the goods had been carried in a ship, any claim for damages or loss occurring after completion of the journey by sea to ………… occurring anywhere on land falls within the paragraph”.
Section 251 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999 as amended provides:
(1) “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 effluents and on such other inland waters as may be designated by any enactment to be on international waterway, all federal ports (including the Constitution and powers of the ports authorities for federal ports) and carriage by sea”
From the provision reproduced above, I am unable to see how the suit has violated the provision of Section 251 (1) (g) of the 1999 Constitution. The scope of the Admiralty Jurisdiction Act 1991 deals with maritime claim.
The Admiralty Jurisdiction Act 1991 has not been violated as well. The suit from the facts deposed to in the affidavit in support of the claim relates to simple contract of hire totally devoid of any maritime colouration and cannot come within the Admiralty or civil jurisdiction of the Federal High Court.
For a claim to be brought within the admiralty jurisdiction of the Federal High Court, the goods concerned must have been lost when they were being carried in a ship as cargo and not after they have been unloaded from the ship. In other words, any claim which arises from acts or omissions of third parties after the agreement (relating to the carriage of goods in a ship or the use or hire of a ship) has been executed or terminated does not come within the admiralty or civil jurisdiction of the Federal High Court.
I am therefore on the same page with the learned trial Judge in his finding of page 180 of the record when he states that:
“In the circumstances the court is of the opinion….that the claim is for a simple contract of hire totally devoid of any maritime colouring and cannot come within the Admiralty, or civil jurisdiction of the Federal High Court”.
Certainly this type of suit is not contemplated to be within the jurisdiction of the Federal High court. The court i.e. the Federal High Court has not been conferred with jurisdiction to entertain claims founded on contract as in the instant case. See the case of Onuorah v. Kaduna Refining & Chemical Co. Ltd (2005) 6 N.W.L.R Part 921 page 393. To do otherwise would mean conferring the Federal High Court with jurisdiction which the Constitution or any act of the National Assembly has not conferred on it. See Tukur v. Government of Gongolo State (1989) 4 N.W.L.R Part 117 page 517. The cause of action being one of debt owed the Respondent by the Appellant is one within the unlimited civil jurisdiction of the State High Court by virtue of Section 272 subsection I of the 1999 Constitution of the Federal Republic of Nigeria. I have said enough. I therefore resolve the sole issue in favour of the Respondent and against the Appellant.
Finally the appeal lacks merit and it is hereby dismissed accordingly. The ruling of the Lower Court delivered on the 3rd of July 2006 is hereby affirmed. N30,000.00 cost is hereby awarded against the Appellant and in favour of the Respondent.
EJEMBI EKO, J.C.A.: The claims of the Respondent, as the plaintiff, at the Rivers State High Court in the suit No. PHC/1716/2005 are as follows:
1. Payment of the sum of N1,650,905.00 (one Million, six Hundred and Fifty Thousand, Nine Hundred and Five Naira) only being and representing money owed the plaintiff as refundable container deposit made to the Defendant by the plaintiff.
2. Interest on the said sum of the prevailing bank rate per annum with effect when it became due until judgment.
3. Interest on the said sum of the rate of 10% per annum after judgment until the debt is paid.
(Underlinings mine).
The claim is for a simple debt, the right to the sum indebted having accrued to the plaintiff/Respondent upon performing his side of the bargain and the defendant/Appellant refusing to discharge his contractual obligation. That is the cause of action adumbrated by the supporting affidavit. Paragraphs 14, 15, 16 and 17 of the supporting affidavit, accompanying the writ of summons, aver that it is ” the practice of the trade that when the container is returned”, the importer becomes entitled to demand for “refund of the container deposit”, and that the plaintiff, as the importer, had since returned the containers and made his demand for the refund of the container deposit, which the defendant/Appellant, as the owner of the containers used in the haulage business, has refused to pay despite repeated demands.
The action is simply to force the defendant/Appellant to pay his indebtedness to the plaintiff/Respondent. The sum indebted is the container deposit which became due for payment to the plaintiff/Respondent by the defendant/Appellant upon the former returning the containers intact. As Bello, JSC stated in AIROE CONSTRUCTION CO. LTD v. UNIVERSITY OF BENIN (1985) NWLR (pt.2) 287: where a debtor fails to pay a debt after, it has become due for payment the creditor may sure the debtor claiming damages for breach of contract and .the measure of damages is the amount of the debt plus nominal damages for its non-payment.
In PETROJESSICA ENTERTPRISES LTD V. LEVENTIS TECHNICAL CO. LTD (1992) N.W.L.R. (pt. 244) 675 it was held that it would be over stretching the admiralty jurisdiction of the Federal High Court to say that the Federal High court, under its admiralty jurisdiction, is the court that has jurisdiction over a dispute arising from the termination of agreement between the shippers and the consignee. In the said decision Nnaemeka Agu JSC had observed:
It is settled that once a cargo has been discharged from the vessel, carriage by sea, admiralty ends. See on this: ALUMINIUM MANUFACTURING CO. LTD. V. NIGERIAN PORTS AUTHORITY (1987) 1 NWLR (Pt.51) 495. The locus for admiralty jurisdiction is the high sea: QUEEN V. CITY OF LONDON COURT (1882) 1 Q.B. D. 273, p.296.
And to borrow the words of Belgore, JSC, from his opinion in the same PETROJESSICA ENT. V. TEVENTIS TECH. CO. LTD (SUPRA): the mere fact that the goods at one stage, in their movement, had a voyage on a ship does not ipso facto give rise to admiralty jurisdiction. The contract of voyage by sea, until finally discharged at the Port of consignment, is what is covered by Admiralty jurisdiction vested exclusively in the Federal High Court by Section 251 (1) (e) of the 1999 Constitution and Section 1 (1) (a) & (3) and 2(3) (f) of the Admiralty jurisdiction Act, 1991.
The Federal High Court has not been vested with jurisdiction by law to entertain claims founded on a mere dispute over debt arising, as in the instant case, from the refusal of a hauler or transporter to pay to the importer of goods the “container deposit” after the latter had returned the containers in good condition. The issue is no longer about voyage by Sea, but only about refund of the “Container deposit” after the containers had been duly returned by the importer to the hauler.
For the above, and the fuller reasons in the judgment just delivered by my learned brother, MODUPE FASANMI, JCA, which I wholly concur, having read it before now, this appeal deserves to be, and is hereby dismissed. The said judgment is hereby adopted by me, including all the consequential orders made therein.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment ably delivered by my learned brother Fasanmi, J.C.A. I am in agreement with my brother that this appeal is lacking in merit and I also dismiss it.
I have looked at the claim before the Lower Court. The claim is that of liquidated money demand. It is not an admiralty action or a maritime claim. The appropriate Court with jurisdiction to entertain it is not the Federal High Court but the Rivers State High Court which is the Lower Court.
I therefore concur with the clear and well reasoned out judgment as delivered by my learned brother Fasammi, JCA. I dismiss the appeal and I also abide by the orders made therein.
Appearances
C. C. NzemechiFor Appellant
AND
Anaba (Mrs.)For Respondent
