ANCOMARINE SERVICES COMPANY LIMITED v. THE M/V. SAM PURPOSE (EX-TAPTI) & ORS
(2018)LCN/12184(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/L/211/2018
RATIO
ACTION: THE DEFENCE OF A ‘DEMURRER’
“Demurrer was an old form of defending an action, whereby a Defendant who believes that the truth or otherwise of the Plaintiff’s claim would not affect the final determination of the matter because there is a point of law which can validly terminate the matter without the need for trial, would not file pleadings but would upon an application call upon the Court to determine the point of law. Thus in the case of UKAEGBU & ORS v. NWANUFORO & ORS (2015) LPELR-24571(CA), Per Ige, J.C.A. (Pp. 41-42, paras. B-D)…” PER JAMILU YAMMAMA TUKUR, J.C.A.
COURT AND PROCEDURE: PRELIMINARY OBJECTION
“A preliminary objection is an application usually brought on the grounds that the Court should not hear a matter at all or continue hearing the matter, on the basis that the Court lacks the requisite jurisdiction to do so. In HASSAN V. ALIYU & ORS. (2010) LPELR-1357(SC)(P. 90, para. D), the Apex Court per Adekeye, J.S.C., pointed out the purpose of preliminary objection thus: ‘the preliminary objection is meant to consider the issue of jurisdiction or competence of the Court to entertain this suit.’ In APC & ORS v. IN RE: CPC & ORS(2014) LPELR-24036 (SC)(Pp. 18-19, paras. C-B) per MUHAMMAD, J.S.C.” PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
ANCOMARINE SERVICES COMPANY LIMITED
(suing by its lawful attorney Queens konsult Limited) Appellant(s)
AND
1. THE ‘M/V. SAM PURPOSE’ (EX-TAPTI)
2. TRANSNAV PURPOSE NAVIGATION LIMITED
(Owners and Technical Managers of M/V Sam Purpose (Ex-Tapti)
3. VELCAN ENERGY HOLDINGS DUBAI LTD
4. VELCAN S.A. Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the Federal High Court Lagos Division in SUIT NO: FHC/L/CS/1438/16 delivered by Honourable Justice M.B. Idris on 19th January, 2018,wherein the Court struck out the suit.
The material facts leading to this Appeal, are that the Appellant acting on the belief that it is entitled to certain monetary sum arising from services rendered to a vessel: The ?MV. Sam Purpose? (Ex-Tapti), brought an action before the lower Court via a Writ of Summons dated 25th October, 2016, against the 1st and 2nd Respondents. On 26th October, 2016, the trial Court granted an order for the arrest of the Vessel (1st Respondent). The Appellant and 1st Respondent filed requisite processes, but the 2nd Respondent failed to file its Statement of Defence. Consequent on the foregoing, default judgment was entered in favour of the Appellant against the 2nd Respondent.
The 3rd and 4th Respondents who were joined as interveners filed an application dated 15th November, 2017, via which they asked the lower Court for an order striking out the Appellant’s suit.
The trial Court granted the application in part, and struck out the 1st Respondent as a party in the suit.
Dissatisfied with the above, the Appellant appealed to this Court vide an Amended Notice of Appeal filed on 18th May, 2018, with six grounds of appeal.
The Appellant’s Amended Brief of Argument settled by Jerry Omoregie Esq., of Omoregie and Associates, is dated 10th October, 2018, and filed on 12th October, 2018, but deemed properly filed on 18th September, 2018. The Appellants’ Reply Brief is dated and filed on 17th October, 2018 but deemed as properly filed on 18th October, 2018.
Appellant’s counsel formulated four issues for determination to wit:
1. Whether the learned trial Judge was right to have struck out the Appellant’s suit based on the 3rd and 4th Respondent’s application dated the 15th November, 2017. (Ground 4)
2. Whether the learned trial Judge was right when he held that the Appellant had no valid cause of action against the 1st Respondent. (Ground 6)
3. Whether the learned trial Judge erred in law when he struck out the 1st Respondent from the suit on the grounds that judgment had been entered against the 2nd Respondent. (Grounds 1, 2 and 3)
4. Whether or not the action as constituted before the Court against the 2nd Respondent was an admiralty action in personam. (Ground 5)
On the other hand, the 3rd and 4th Respondents’ Brief settled by Dr. Oladapo Olanipekun SAN, FCIArb, is dated and filed on 15th October, 2018, but deemed properly filed on 18th October, 2018.
3rd and 4th Respondents’ counsel distilled four issues for determination to wit:
1. Considering the default judgment of the trial Court delivered on 5 April, 2017, whether the trial Court was not right in striking out the name of the 1st defendant and consequently striking out the whole suit. (Grounds 1, 2, 3)
2. Whether the trial Court was not right in striking out the suit in limine upon the 3rd and 4th Respondents’ application dated 15 November, 2017. (Ground 4)
3. Whether the trial Court was not right in finding that Appellant’s claim against the 2nd Respondent was/is an admiralty action in personam.
4. Whether the decision of the trial Court dated 19 January, 2018 amounts to a determination of the substantive matter at an interlocutory stage (Ground 6).
PRELIMINARY OBJECTION
The 3rd and 4th Respondents filed a Notice of Preliminary Objection dated and filed on 7th June, 2018, via which they objected to this appeal chiefly on the grounds that the 1st Respondent having been struck out by the order of the trial Court, it required leave of Court before it could be made a party to this appeal; that grounds 4, 5 and 6 of the Amended Notice of Appeal filed on 18th May, 2018 are incompetent; grounds 1, 2, 3, 4, 5 and 6 being grounds of mixed law and facts require leave of Court before they could be competently filed.
In arguing the Preliminary Objection, learned senior counsel for the 3rd and 4th Respondents argued that the effect of the valid and subsisting decision of the trial Court striking out the 1st Respondent as a party to the case at trial, means that the reflection of the vessel’s name on the Amended Notice of Appeal constitute an unlawful, unilateral joinder which offends the rule to the effect that an appeal must reflect the extant parties at the trial Court.
He relied on the following:
Section 287 of the Constitution of the Federal Republic of Nigeria; PPA v. INEC (2012) 13 NWLR (Pt. 1317) 215, 236-237, 246,247, 251; Sanusi v. Modu (1994) 5 NWLR (Pt. 347) 732, 739; Obi v. Etiaba (2015) 6 NWLR (Pt.1455) 377, 389,390,399; Rossek v. ACB (1993) 8 NWLR (Pt.312) 382, 434, 435, 472, 472; Agbaje v. INEC (2016) 4 NWLR (Pt.1501) 151, 166; SCC Nig. Ltd v. Anya (2012) 9 NWLR (Pt.1305) 213,222; Onafowokan v. Wema Bank Plc (2011) 12 NWLR (Pt.1260) 24, 53-54.
Learned senior counsel also argued that there is no nexus between the Appellant’s grounds of appeal and the decision of the trial Court in question especially with regards to grounds 4, 5, 6 of the grounds which contain complaints that have nothing to do with said decision. Thus rendering the grounds incompetent.
He relied on:
Egbe v. Alhaji Abubakar Alhaji & Ors (1990) 1 NWLR (Pt. 128) 540, 590; Rilwan & Partners v. Skye Bank Plc (2015) 1 NWLR (Pt. 1441) 437, 454-455; FCDA v. Unique Future Leaders Intl Ltd (2014) 17 NWLR (Pt.1436) 213, 236-237; Yahaya v. Dankwanbo (2016) 7 NWLR (Pt.1511) 284, 307; C.G.G Nig. Ltd v. Aminu (2015) 7 NWLR (Pt.1459) 577, 591; Intercontinental Bank Plc v. Olam Nig. Ltd (2013) 6 NWLR (Pt.1351) 468, 476, 478; Kente v. Ishaku (2017) 15 NWLR (Pt. 1587) 94, 108-109; Odom v. PDP (2015) 6 NWLR (Pt.1456) 527, 569; Wema Securities and Finance Plc v. Nigeria Agricultural Insurance Corp. (2015) 16 NWLR (Pt.1484) 93, 123, 124; CGG Nig. Ltd v. Aminu (supra) 591,592; and Donald v. Saleh (2015) 2 NWLR (Pt.1444) 529, 566.
He submitted that grounds 5 and 6 of the Amended Notice of Appeal are vague, nebulous and incomprehensible, a state of affairs which contravenes the requirement and purpose of a Notice of Appeal, which is to give notice of the complaint with the decision of the trial Court to the Respondent. He further submitted that this constitutes a breach of the fundamental right to fair hearing.
He relied on the following:
Section 36(1) of the Constitution; Order 7 Rule 3 Court of Appeal Rules 2016; Nuhu v. Ogele (2003) 18 NWLR (Pt. 852) 251, 266-267; Udom v. Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179, 224; and Saraki v. Kotoye (1992) 9 NWLR.
Learned senior counsel submitted that the absence of a valid Notice of Appeal means this Court ought to strike out the appeal.
He relied on the following cases:
SPDCN Ltd v. Ekosi (2016) 2 NWLR (Pt. 1496) 278, 288-289; Ikechukwu v. FRN (2015) 7 NWLR (Pt. 1457) 1, 18; Kente v. Ishaku(supra); Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 1375) 466, 484; SPDCN Ltd v. Sam Royal Hotel Nig. Ltd (2016) 8 NWLR (Pt. 1514) 318, 332; Ikechukwu v. FRN (supra) 22.
On the other hand, learned counsel for the Appellant argued that the names of parties in the Amended Notice of Appeal are same as the case at trial Court and since the crux of the appeal is to contest the decision striking out the 1st Respondent, the inclusion of her name was necessary in order to enable this Court assume full jurisdiction.
Learned counsel for the Appellant also argued that the cases relied upon by the counsel to the 3rd and 4th Respondents, to support the argument that the name of the 1st Respondent ought not to be added without leave if the appeal would be competent would not avail him, and Samso v. Modu relied upon by him is to the effect that the parties to an appeal are generally the parties whose names appear in the records as Plaintiff and Defendant.
He submitted that grounds 4, 5, 6 are highlights of the errors made by the trial Court which the Appellant has invited this Court to review. He further submitted that the cases relied on do not apply to the circumstances of this appeal.
He relied on the case of Dyeris v. Mobil Oil Nigeria Plc (2009) LPELR-CA/IC/277/02.
RESOLUTION
The right to appeal is not just statutory, it is constitutionally entrenched, hence it ought not be needlessly tampered with.
See: Sections 6, 233, 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
The complaint of the 3rd and 4th Respondent as to the parties in this appeal hinges on the fact that the lower Court had struck out the 1st Respondent at trial and as such, she ought not be part of this appeal. I do not agree with this contention, because the parties to an appeal ought to be the parties at the lower Court or the parties at the lower Court with anyone who has been made part of the appeal with the leave of Court, in line with the provisions of Section 233(5) of the Constitution.
In determining an issue similar to this one, this Court in the case of CBN v. LINAS INTERNATIONAL LTD & ORS (2018) LPELR-44819(CA)Per IGE, J.C.A. (P. 20, Para. B), held thus:
The parties on record at the lower Court must be retained at Appellate level by an intending Appellant or an Applicant according to the parties to an action at lower Court which cannot be modified, struck out or removed from the proceeding without necessary application and the leave of the Appellate Court to modify, subtract or add to the parties as constituted at the lower Court. The structure of the parties cannot be unilaterally changed or amended by any of the parties to on appeal.
See: BESSOY LTD v. OLEKA & ANOR (2018) LPELR-44202 (CA); and OBIUKWU & ANOR v. OKWUDIRE & ORS (2018) LPELR-45066(CA).
An appeal is targeted at a decision of Court which the Appellant is dissatisfied with, in this appeal, the chief dissatisfaction of the Appellant is the striking out of the 1st Respondent as a party to the case at trial. To then state that the very nucleus of the Appellant’s grievance ought not be made a party to this appeal would be to turn the law on its head.
There is no gainsaying the fact that a Notice of appeal constitutes notice to both this Court and the Respondent of the complaint against the judgment of the lower Court and as such should disclose what that complaint is in a manner that is clear enough and in accordance with the provisions of the rules of this Court.
Order 7 Rules 2 of the Court of Appeal Rules 2016 provides thus:
2. (1) Appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.
(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) The notice of appeal shall be signed by the Appellant or his legal representative.
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.
A proper examination of the above reveals that some of the grounds upon which this Court may strike out a Notice of Appeal, is where the ground is vague or which discloses no reasonable ground of appeal. I have however examined the Amended Notice of appeal herein and am of the opinion that it is not one that ought to be struck out. The part of the lower Court’s decision which is being appealed against is clearly stated and the particulars are captured. The manner of listing the particulars may be inelegant, but that do not affect the validity of the Amended Notice of Appeal.
The attitude of this Court towards an inelegantly drafted ground is to make the best it can out of same in the interest of substantial justice between the parties. In the case of ZAYYANA v. RABIU (2018) LPELR-44746 (CA) Per ADEFOPE-OKOJIE, J.C.A. (P. 7, Paras. D-G), quoting with approval the dictum of Nweze JSC inOleksandr v. Lonestar Drilling Co. Ltd., stated thus:
“There is however a current shift of emphasis from technical justice to substantial justice. Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice.”
See:AKPUCHUKWU v. NYSC & ANOR (2018) LPELR-44619 (CA); MOFUNANYA v. NWADIOGBU (2017) LPELR-43079 (CA); and AKOR & ORS v. OGBONNA & ANOR (2016) LPELR-42112(CA).
Finally, with regards to whether there is a need for leave to be obtained before the filing of this appeal, the substratum of the appeal from the face of it is an issue of law, that is whether a party in an admiralty matter can pursue an action in rem and an action in personam at the same time and where the action in personam succeeds, whether he can continue with the action in rem. Thus, no leave was required before the proper filing of this appeal.
See: BRITTANIA-U NIG LITD v. SEPLAT PETROLEUM DEVELOPMENT COMPANY LTD & ORS (2016) LPELR-40007(SC); IKEME & ANOR v. UGWU(2013) LPELR-21890(CA); and HONOURABLE MINISTER OF FCT & ANOR v. MONONIA HOTEL NIGERIA LTD. & ANOR.(2010) LPELR-4257(CA).
The preliminary objection therefore fails, and is dismissed.
The issues raised by counsel on both sides are substantially the same, and I therefore proceed to determine the appeal on the issues raised by the Appellant, for the purpose of convenience, with his issues 3 and 4 taken together, because they are substantially linked.
ISSUE ONE:
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE STRUCK OUT THE APPELLANT’S SUIT BASED ON THE 3RD AND 4TH RESPONDENT’S APPLICATION DATED THE 15TH NOVEMBER, 2017. (GROUND 4)
Learned counsel for the Appellant argued that by virtue of the Appellant?s Statement of Claim, especially in light of the averments in paragraphs 2, 3, 4, 9 and 10 thereof, the Appellant duly established its interest and legal right to institute the action against the 1st Respondent/Defendant.
He relied on the following cases: Ladejobi v. Oguntayo (2004) 12 NWLR (Pt. 904) P. 149; Adefule v. Oyesile (1989) 5 NWLR (Pt. 122) P. 377; Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) P.669; Benedict Ojukwu v. Louisa Chinyere Ojukwu & Anor (2008) 4 NWLR (Pt. 1078) P.435; Adesanya v. President of the Federal Republic of Nigeria (1981) 5 SC P.69; Disu v. Ajilowura (2006) 7 S.C. (Pt.11) P.1; Adesokan v. Adegorolu (1997) 3 NWLR (Pt. 493) P.261; Owodunni v. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (Pt 675) P. 315; and Deinma Mangibo v. Chief J. Oguide & Anor (2009) LPELR-CA/PH/75/2000.
Learned counsel also argued that the failure of the 3rd and 4th Respondents to file any statement of defence to the Appellant?s action at the trial Court upon being joined as Interveners, by the lower Court on 8th June, 2017, before filing the application dated 15th November, 2017, the subject matter of this appeal was fatal to their successful bringing of the application.
He relied on the case of Disu v. Ajilowura (2006) 7 S.C. (Pt.11) P. 1.
Counsel submitted that the 3rd and 4th Respondents act of bringing a legal defence by motion constitutes demurrer, which has been abolished by the rules of the Federal High Court, thus constituting their application seeking to strike out the suit as incompetent, and the trial Court ought to have refused same.
He relied on the following:
Order 16 Rules 1 & 2(1) of the Federal High Court (Civil Procedure) Rules 2009; Ambassador Yusus Hamman & Ors v. Otunba Adeniyi Adebayo &Ors (2002) LPELR-CA/A/60/2001; Oluwole v. PHCN Plc (2012) CA/L/36/2010; Disu v. Ajilowura (supra); Owner MV ‘Cape Breton’ v. Ganic Nig. Ltd (2007) All FWLR (Pt. 372) 1825 at 1842; and Petkev Nig Ltd & Anor v. Elder Obumanyi Ogbogu& Anor (2016) LPELR-CA/L/242/2012.
He further argued that the import of the aforementioned rules of the lower Court requiring the filing of a statement of defence before bringing of applications such as the one brought by the 3rd and 4th Respondents operated as a condition precedent, failure to abide by which deprived the lower Court of jurisdiction to hear the matter.
He relied on the following cases:
Madukolu v. Nkemdilim (1962) All NLR 581; Egbuonu v. Borno Radio Television Corporation (1997) 12 NWLR (Pt. 531) P. 29; Nwaogwugwu v. President FRN (2007) All FWLR (Pt. 389) 1327 at 1354; WAEC v. Adeyanju (2008) 9 NWLR (Pt.1092) P. 270 at 294; Attorney General of Lagos State v. Hon. Justice Dosumu (1989) 3 NWLR (Pt. 111) P. 552; and First Bank of Nigeria v. Akpan & Anor (2011) LPELR-CA/C/180/2006.
Learned counsel then submitted that the nature of the 3rd and 4th Respondents? application in question were such that it would have been impossible for the trial Judge to properly determine them without delving into the substantive rights of the parties, an act which is forbidden by law at such stage and that the findings by the learned trial Judge, at pages 1724-1725 and 1729-1730 of the records, to the effect that the crux of the Appellant?s entire claim is to recover the sums owed it by the 2nd Defendant, constitutes an improper delving into matters of substantive rights of the parties at an interlocutory stage.
He relied on the following cases:
Okotie-Eboh v. Ebiwo Manager (2004) 11-12 S.C. P. 174 at 177; Nwankwo & 2 Ors v. YarAdua & 40 Ors (2010) 3-5 S.C (Pt. 111) P.1; Union Bank of Nigeria Plc v. Astra Builders (W.A) Ltd (2006) 2-3 S.C Pt.1 59 at 95; Iwara v. Tiam (alias Bombay) & Anor (2009) LPELR-CA/C/217/2007; and Odutola Holdings Ltd v. Ladejobi (2006) 12 NWLR (Pt. 994) P.321.
On the other hand, learned senior counsel for the 3rd and 4th Respondent argued that the trial Court was right in striking out the suit in limine upon the 3rd and 4th Respondents’ application dated 15th November, 2017, as the grounds for the application are jurisdictional, being primarily based on locus standi and cause of action, which may be raised and determined at any stage of the proceedings, and ought to be determined at the earliest opportunity once raised.
He relied on the following cases:
AG Rivers State v. AG Akwa Ibom State (2011) NWLR (Pt. 1248) 31, 165; Nwora v. Nwabueze (supra) 718; Akere v. Governor of Oyo State (supra); Senate President FRN & Anor v. Senator Nzeribe (2004) All FWLR (Pt. 215) 359, 375-376.
Learned senior counsel also argued that the 3rd and 4th Respondents were entitled to bring the application as they were joined as Interveners at trial for the purpose of asserting and protecting their rights as Mortgagees, rights which were proprietary in nature, fundamental in nature and cannot be divested except in accordance with due process.
He relied on the following cases:
Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319, 332; PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205; Armour v. Thyssen Edelstahlwerke AG (1990) 3 All ER 481, 486; Adetona v. First Bank Plc (2012) 3 BFLR 208, 221; AG Bendel v. Aideyan (1989) 4 NWLR (Pt. 118) 649, 667; Onagoruwa & Anor v. IGP & 5 Ors (1991) 5 NWLR (Pt. 193) 593, 643; Obeya Memorial Hospital v. AG Federation (1987) NWLR (Pt. 60) 325, 349; Adetona v. Zenith Intl Bank Plc (2011) 18 NWLR (Pt. 179) 627, 644-645; and Collins v. Lamport (1864) 46 ER 1012, 1214.
He submitted that the 3rd and 4th Respondents did not have to file a defence before they could raise a jurisdictional issue, that demurrer is distinct from jurisdictional objection and the abolition of demurrer does not impair a party?s right to raise a jurisdictional challenge.
He relied on the following cases:Musaconi Ltd v. Aspinall (2013) 14 NWLR (Pt. 1375) 435, 460; Onafowokan v. Wema Bank PLC (supra) 41-42; Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310) 137, 179-180; S.C.S Co. v. Council, OAU Ife (2011) 14 NWLR (Pt. 1269) 193, 209; NDIC v. CBN (2002) 7 NWLR (Pt.766) 272, 296-297; Liverpool & London Steamship Protection & Indemnity Association Ltd v. M/T Tuma& 2 Ors (2011) 15 NWLR (Pt.1271) 612, 627-628.
He also submitted that the basis of the trial Court’s decision, that is locus standi and cause of action, overlap, with the ultimate effect that both refer to a Plaintiff’s right or entitlement to the reliefs claimed, and that the decision is sound because the Appellant having lost the right to proceed independently against the 1st Respondent for the reliefs claimed by virtue of the judgment against the 2nd Respondent, lost the requisite locus standi and cause of action.
He relied on the following cases:
Owodunni v. Regd. Trustees of the Celestial Church of Christ (2000) 10 NWLR (Pt. 675) 315, 365; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669-682; and Lebile v. Registered Trustess of C&S (2003) 2 NWLR (Pt. 804) 399, 424-425.
RESOLUTION
The pertinent question that arises from this issue is whether the application filed by the 3rd and 4th Respondents which led to this appeal was properly brought or if it falls foul of the rules against demurrer.
There is no doubt that demurrer is outlawed in the lower Court. Order 16 of the Federal High Court Civil Procedure Rules 2009 provides thus
1. No demurrer shall be allowed.
2. (1) 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.
(2) A point of law so raised may, by consent of the parties, or by order of the Court or a Judge in Chambers on the application of either party, be set down for hearing and disposed of at any time before the trial.
Demurrer was an old form of defending an action, whereby a Defendant who believes that the truth or otherwise of the Plaintiff’s claim would not affect the final determination of the matter because there is a point of law which can validly terminate the matter without the need for trial, would not file pleadings but would upon an application call upon the Court to determine the point of law.
Thus in the case of UKAEGBU & ORS v. NWANUFORO & ORS (2015) LPELR-24571(CA), Per Ige, J.C.A. (Pp. 41-42, paras. B-D), this Court gave a comprehensive review of the concept thus:
“Now what is “Demurrer” Demurrer has been defined in numerous cases. In the case of TIJANI BAMBE & ORS VS ALHAJI A. ADERINOLA & ORS (1977) 1 SC 5 – 6, the Supreme Court per MADARIKAN, J.S.C. said: “The word “demurrer” came from the Latin word “dimorari” meaning to “wait” or “stay”. Before demurrer was abolished, one of the methods of fighting opponent’s pleading was by demurrer. The party who demurred would not proceed with his pleading but having raised point of law as to whether any case had been made out in his opponent’s pleading for him to answer, awaited the decision on that point.”
In the case of MOBIL OIL NIG. PLC VS IAL 36 INC. (2000) 6 NWLR (Part 659) 146 at 167 G – H, KARIBI-WHYTE J.S.C. (as he then was) said of demurrer as follows:- “A demurrer is a known and well accepted common law procedure which enables a Defendant who contends that even if the allegations of facts as stated in the pleading to which objection is taken are true, yet their legal consequences are not such as to put the Defendant (the demurring party) to the necessity of answering them or proceeding further with the cause. This, concisely stated, is the concept of the rules as formulated. As has often been pointed out in several decided cases including those decided by this Court, the whole basis of a demurrer is in effect to short circuit the action and by a preliminary point of law to show that the action founded on the writ and statement of claim cannot be maintained.” See LEWIS, J.S.C., in AINA V TRUSTEES OF RAILWAY CORPORATION PENSIONS FUND (1970) 1 ALL NLR 281 at p. 283, Mayor of Manchester V Williams (891) 1 QB. 94
The current position of the law now is that demurrer proceedings in its original form is no longer allowed. What is permitted is a modified form, referred to as ?proceedings in lieu of demurrer?, which is to the effect that before a party can seek to terminate proceedings in circumstances that would constitute demurrer, such a party must file pleadings.
See: INTERDRILL (NIG) LTD & ANOR v. UBA PLC (2017) LPELR-41907(SC); ONOKOMMA v. UNION BANK (2017) LPELR-42748(CA); AKINYEMI & ANOR v. BANJOKO (2017) LPELR-42377(CA); and JFS INVESTMENT LTD. V. BRAWAL LINE LTD. (2010) LPELR-1610(SC).
From the above, it is quite glaring that there exists a similarity between the old demurrer proceedings and a preliminary objection, as the aim of both is to terminate a matter without a full trial. It must however be clearly noted that a preliminary objection to the institution or continuation of a suit is different from a demurrer proceeding and may be so different even when it is brought without the filing of a Statement of Defence by the Defendant in a trial.
A preliminary objection is an application usually brought on the grounds that the Court should not hear a matter at all or continue hearing the matter, on the basis that the Court lacks the requisite jurisdiction to do so. In HASSAN V. ALIYU & ORS. (2010) LPELR-1357(SC)(P. 90, para. D), the Apex Court per Adekeye, J.S.C., pointed out the purpose of preliminary objection thus: ?the preliminary objection is meant to consider the issue of jurisdiction or competence of the Court to entertain this suit.”
In APC & ORS v. IN RE: CPC & ORS(2014) LPELR-24036 (SC)(Pp. 18-19, paras. C-B) per MUHAMMAD, J.S.C., the Supreme Court gave a comprehensive exposition of the concept thus:
“Anything “Preliminary”, denotes anything coming and usually leading up to the main part of that thing or something else.
Thus, a Preliminary Objection in a case/suit before a Court of law or Tribunal is that objection which if upheld would render further proceedings before that Court or Tribunal impossible or unnecessary. An example which readily comes to mind is an objection to the Court’s or Tribunal’s jurisdiction to entertain a matter placed or raised before it by any of the parties. It is the duty of the Court to consider that objection and give a ruling on it without much ado. The importance of such an approach has been re-stated severally by this Court. At the risk of being immodest, permit me, my Lords, to quote what I said in the case of Efet v. INEC (2011) 1 SCNJ, 179 at page 194: “The aim/essence of a Preliminary Objection is to terminate at infancy, or as it were, to nip in the bud, without dissipating unnecessary energies in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses hearing of the matter in order to save time.” See further:Yaro v. Arewa Construction Ltd & Ors (2007) 6 SCNJ 418; Sani v. Okene (2008) 5 SCNJ 246.”
See: BANK OF INDUSTRY LTD v. AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR-43812(SC); ADEJOH v. OLOFU & ORS(2014) LPELR-22347(CA); and KENTE v. ISHAKU & ORS (2016) LPELR-40788(CA).
The Apex Court in differentiating between a preliminary objection and demurrer proceedings, in the case of AJAYI V. ADEBIYI & ORS (2012) LPELR-7811 (SC) (Pp 49-50, Paras E-G)per ADEKEYE, J.S.C held thus:
“It is therefore noteworthy that an application or preliminary objection seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that the issue of jurisdiction can be raised at any time. In the case of National Deposit Insurance Corporation v. Central Bank of Nigeria (2002) 7 NWLR (Pt. 766) pg.272 pages 296-297, this Court identified the difference between demurrer and objection to jurisdiction by holding that – “There is distinction between objection to Jurisdiction and demurrer. It is misleading to equate demurrer with objection to jurisdiction. It is 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. 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 relief 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 is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.”
See: NDIC V. CBN & ANOR (2002) LPELR-2000(SC); AKINYEMI & ANOR v. BANJOKO (2017) LPELR-42377(CA); and WHETTO & ORS v. AWODE & ORS (2011) LPELR-5100(CA).
A calm look at the application in question reveals that same was not a demurrer. The aim of the application was to protest the jurisdiction of the lower Court on the basis of cause of action and locus standi and as such was properly brought.
It should also be noted that there was nothing untoward about the timing of the application, as matters of jurisdiction are of such a nature that they may be brought at any stage of the proceedings and when so brought, ought to be determined at the earliest opportunity.
See: GARBA v. MOHAMMED & ORS (2016) LPELR-40612(SC); and LUMENZE v. GOVT OF EBONYI STATE (2018) LPELR-44618(CA).
This issue is consequently resolved in favour of the 3rd and 4th Respondents.
ISSUE TWO:
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT THE APPELLANT HAD NO VALID CAUSE OF ACTION AGAINST THE 1ST RESPONDENT. (GROUND 6)
Learned counsel for the Appellant adopted his arguments to the effect that it would have been impossible for the trial Judge to properly determine the issues raised in 3rd and 4th Respondent?s application without delving into the substantive rights of the parties and that the Court did improperly delve into matters of substantive rights of the parties at an interlocutory stage.
Learned counsel also argued that the Appellant had a valid cause of action against the 1st Respondent at trial, as the statement of claim and facts pleaded in support reveals an action in rem against the Vessel: as the claim was based on the alleged fact that the Appellant upon the instructions of the 2nd Respondent supplied various items and goods for the operations and maintenance of the 1st Respondent (vessel).
He relied on the following cases:
Chevron Nigeria Ltd v. Lonestar Drilling Nig Ltd (2007) 7 S.C. (Pt.11) 27; Fasheun Motors Ltd v. UBA Ltd (2000) 1 NWLR (Pt. 640) 190; Keyamo v. L.S.H.A (2000) 12 NWLR (Pt. 680) 196; and Ayanboye v. Balogun (1990) 9-10 S.C 1.
He argued that the trial Court’s finding which seemed to imply that the Appellant’s cause of action ceased to exist midway through the action was wrong.
Counsel submitted that the likelihood of success or failure of a Plaintiff’s action has no bearing in the determination of cause of action, hence the Court must confine itself to the averments in the statement of claim and only a finding that the action is devoid of all merit could have precluded the Appellant from the right of full trial.
He relied on the case of Chevron Nigeria Ltd v. Lonestar Drilling Nig Ltd (supra).
On the other hand, learned senior counsel for the 3rd and 4th Respondent submitted that the trial Court did not strike out the Appellant’s claim against the 1st Respondent based on a determination of substantive matters, but on jurisdictional and threshold issues of locus standi and cause of action.
Learned senior counsel also argued that due to the nature of the 3rd and 4th Respondents’ claim, especially with regards to the application in question it was impossible for substantive issues to arise as the claim was based on a pure issue of law with regards to priority of a Mortgagee’s claim.
He submitted that the valid and subsisting judgment for the full sum claimed given in favour of the Appellant on 5th April, 2017, rendered the suit academic, as there was no more live issue before the Court.
He relied on the cases of Odedo v. INEC (supra); and Agbaje v. INEC.
Learned senior counsel sought to distinguish the case of Nwankwo v. Yar’Adua (supra) relied upon by the Appellant’s counsel from the facts of this appeal by stating that the issue in that case bordered on hearing of a preliminary objection in an election matter outside the allotted period and not examination of substantive matters at an interlocutory stage.
He then submitted that the in order to determine whether requisite locus standi and/or cause of action exists in a case, the Court must necessarily look at a Plaintiff’s case and such an examination would not amount to delving into substantive matters.
He relied on the cases ofPDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85, 127; Thomas v. Olufosoye (supra); Ajayi v. Adebiyi (supra); Musaconi Ltd v. Aspinall (supra); Elabanjo v. Dawodu (supra); Izenkwe v. Nnadozie (supra); Adeyemi v. Opeyori (supra); and Kasikwu Farms Ltd v. AG Bendel (supra).
RESOLUTION
A cause of action is the fact, set of facts or circumstances, which when taken together, constitutes a right on a Claimant’s part to bring the action or complaint he is seeking to bring.
The Supreme Court gave a definition of the concept in ATIBA IYALAMU SAVINGS & LOANS LTD v. SUBERU & ANOR (2018) LPELR-44069 (SC) Per KEKERE-EKUN, J.S.C. (Pp. 43-45, Paras. F-B) Thus:
“In Bello Vs A.G. Oyo State (1986) 5 NWLR (pt. 45) 828 @ 876 A – B this Court considered what constitutes a reasonable cause of action. His Lordship Karibi-Whyte, JSC opined thus:
“I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim.” This definition was adopted by Obaseki, JSC in Afolayan Vs Ogunrinde (1990) 1 NWLR (pt. 127) 269 @ 382 F – H. His Lordship stated: “In its simplest terms, I would say that a cause of action means: (1) a cause of complaint; (2) a civil right or obligation fit for determination by a Court of law; (3) a dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine. It consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment.”
See: BARBUS & CO. (NIG) LTD & ANOR v. OKAFOR-UDEJI (2018) LPELR-44501(SC); CBN & ANOR v. MICHAEL (2018) LPELR-44251 (CA); and DG, Bureau Of Lands, Kwara State & Anor V. Alabi & Anor (2018) Lpelr-44487(Ca).
Closely related yet distinct from the concept of cause of action is that of locus standi, which simply means the capacity to bring the action. A capacity whose chief determinant in our jurisprudence is sufficient and legally recognised interest in the cause of action. Thus, where a cause of action exists, the party seeking to institute an action based on that particular set of facts must show a significant link between him and that set of facts, else he would not be allowed to proceed on the action.
This Court gave an apposite description of the relationship between these two legal concepts and their effect when in the case of AMAECHI v. GOVERNOR OF RIVERS STATE & ORS (2017) LPELR-43065(CA), per Omoleye, J.C.A. (Pp. 72-73, Paras. A-B) it held thus:
“It is beyond doubt that both the issues of “Locus Standi” and “Cause of Action” touch on the jurisdiction of Court. As a brief overview, “Locus Standi” means the legal capacity or standing of a party to institute an action in a competent Court of law or Tribunal. ”
Therefore, the challenge of a person’s “locus standi” in a case raises a question of whether the person whose standing is in issue, is the proper person to seek the adjudication of the Court or Tribunal upon the issues involved in or the subject-matter of the case. “Locus standi” goes to the jurisdiction of the Court to adjudicate on the subject-matter of a suit. Hence, once there is no “locus standi”, the Court cannot proceed to adjudicate over the matters in issue in the suit. The words “cause of action” simply means the facts or claims which when proved by a plaintiff will entitle him or her to a remedy against a defendant. Therefore, where the plaintiff does not present such set of facts or claims against the defendant, there can be no jurisdiction of the Court to make an order in respect of the set of facts or claims.
Accordingly, a plaintiff must possess both a remediable claim and the legal capacity to institute the claim against an identifiable defendant before jurisdiction can be donated to the Court or Tribunal to make an appropriate order in respect of the subject-matter of the claim.”
See: REBOLD INDUSTRIES LTD v. MAGREOLA & ORS (2015) LPELR-24612 (SC); THE DAILY TIMES OF NIGERIA & ORS. v. D. S. V. LIMITED(2013) LPELR-20369(CA); and THE DAILY TIMES OF NIGERIA & ORS. v. D. S. V. LIMITED (2013) LPELR-20369(CA).
There is no doubt that the principles of cause of action and locus standi, are substantive jurisdictional issues, which go to the root of the matter and may be raised at any time. Once raised, it must be determined by the Court at the earliest opportunity.
A calm examination of the decision of the trial Court, reveals that the learned trial Judge was well aware of the correct principles of law with regards to cause of action and locus standi. The rationale of his decision striking out the 1st Respondent is predicated on the fact that the Appellant no longer had a cause of action against the 1st Respondent, because judgment for the sum claimed had been obtained against the 2nd Respondent, thus, extinguishing any legal right to redress because there was no more in existence, a legal wrong that called for a redress. This approach by the learned trial Judge is in my view correct, and in accordance with sound legal reasoning because the nature of the claims against the 1st and 2nd Respondent contained in the same Writ of Summons, constituted an action in personal, which does not recognise a separate action against the 1st Respondent and comes to an end upon judgment being obtained against the 2nd Respondent.
With regards to the complaint as to whether the trial Court delved into substantive issues at an interlocutory stage, the simple answer is in the negative. The law is well settled that a Court must not determine issues that are meant for a full trial at a preliminary stage, but such an infraction did not occur here. What the Court took into consideration were facts that were obvious and true as at the time of reaching the decision.
See ZERKON v. WANCHAR (2018) LPELR-44492(CA); THE REG. TRUSTEES OF UGBORODO COMMUNITY TRUST & ORS v. OJOGOR & ORS(2014) LPELR-23333(CA); and CHUKWUEGBO v. AGU & ORS(2015) LPELR-25578(CA).
The implication of the above is that this issue is resolved in favour of the 3rd & 4th Respondents.
ISSUE THREE:
WHETHER THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN HE STRUCK OUT THE 1ST RESPONDENT FROM THE SUIT ON THE GROUNDS THAT JUDGMENT HAD BEEN ENTERED AGAINST THE 2ND RESPONDENT. (GROUNDS 1, 2 AND 3)
ISSUE FOUR:
WHETHER OR NOT THE ACTION AS CONSTITUTED BEFORE THE COURT AGAINST THE 2ND RESPONDENT WAS AN ADMIRALTY ACTION IN PERSONAM. (GROUND 5)
In arguing issue three, learned counsel for the Appellant argued that the Appellant’s claim at the Court below was against the Respondents jointly and severally, which makes their liability severable and that by virtue of Order 14 Rule 2 of the Federal High Court (Civil Procedure) Rules 2009, judgment may be given against either of the Defendants without prejudicing the right of the Appellant to proceed with his action against the other Defendant.
He relied on the following:
Order 9 Rule 5 of the Federal High Court (Civil Procedure) Rules 2009; Asonibare v. Mamodu & Anor (2013) LPELR-CA/I/225/2009; In Re: Abboyi-Ketu Local Government Development Area and Anor (2017) LPELR-CA/L/888/2013.
Learned counsel also argued that the decision of the learned trial Judge striking out the 1st Respondent was to the effect of precluding or foreclosing the Appellant’s right to proceed against the 1st Respondent, who had filed its defence, and constituted a breach of the Appellant’s fundamental right of fair hearing, thus rendering the proceedings a nullity.
He relied on the following:
Salu v. Egeibon (1994) 6 S.C.N.J 223; and Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt. 1224) 154.
On the other hand, while arguing issue three, learned senior counsel for the 3rd and 4th Respondent argued that the valid and subsisting judgment entered against the 2nd Respondent for the full monetary claim of the Appellant was the main basis for the decision of the trial Court striking out the name of the 1st Respondent and the consequent striking out of the entire suit, based on the resolution of issues raised in the 3rd and 4th Respondents in the application of 15th November, 2017, especially: whether the Appellant is entitled to recover more than the amount endorsed on the Writ of Summons; whether the Appellant has an independent Cause of Action/Locus Standi against the 1st Respondent; whether there was any live issue/relief left in the suit at the trial Court following the judgment against the 2nd Respondent; and whether in the light of the foregoing questions, the suit at the trial Court had not become academic and the trial Court divested of jurisdiction.
He relied on the following cases:
Rossek v. ACB (supra); Asimi v. State (2016) 12 NWLR (Pt. 1527) 414, 431; Akere v. Governor of Oyo State (2012) 12 NWLR (Pt. 1314) 240, 269, 278, 282-283, 290-291; Egharevba v. FRN (2016) 10 NWLR (Pt.1521) 431, 448, 450; and Ladoja v. Ajimobi (2016) 10 NWLR (Pt.1519) 87, 144, 147, 158.
Learned senior counsel also argued that Appellant’s cause of action is primarily against the 2nd Respondent, who solely incurred the alleged liability and who by the Appellant’s pleadings was the primary Defendant at trial, hence the Appellant’s suit against the 1st Respondent cannot survive without the 2nd Respondent, and that the provisions of the Federal High Court Rules do not allow double compensation which the law frowns at nor allow a party to obtain reliefs from a party against whom it has no cause of action.
He relied on the following cases:
Agu v. General Oil Ltd (2015) LPELR-24613(SC) 1, 32; Eastern Breweries Plc and Ors v. Nwokoro (2012) LPELR-7949(CA) 1, 37; Armels Transport v. Transco (Nig.) Ltd (1974) II SC 237; and Yisi Nig. Ltd v. Trade Bank Plc (2013) 1 BFLR 416, 432-433, 441; and Charles Okike v. LPDC (2005) 3-4 SC 49, 93-94.
He also argued that a cause of action which is valid at commencement may be lost subsequently and that in this case, the judgment in personam terminated the Appellant’s cause of action/right of action, rendering the action a mere academic exercise. He further posited that where a Court cannot grant the reliefs claimed, it must strike out or dismiss the suit.
He relied on the following cases:
Chevron Nig. Ltd v. Lonestar Drilling Nig. Ltd (2007) 31 NSCQR 100-101; Thomas v. Olufosoye (supra); Ajayi v. Adebiyi (supra); Musaconi Ltd v. Aspinall (supra);Elabanjo v. Dawodu (supra); Izenkwe v. Nnadozie (supra); Adeyemi v. Opeyori (supra); and Kasikwu Farms Ltd v. AG Bendel (supra); Olutola v. Unilorin (2004) 20 NSCQR 256, 295, 300-301; Obiuweubi v. CBN (2011) 45 NSCQR 51, 82-83; Agbaje v. INEC (supra) 167-168; Odedo v. INEC (2008) 17 NWLR (Pt.1117) 554, 600; Yusuf v. COP Lagos State (supra) 905; and Adams v. Umar (2009) 5 NWLR (Pt.1133) 41, 124.
In arguing issue four, learned counsel for the Appellant adopted his arguments with respect to the subsistence of Appellant’s cause of action and submitted that the Appellant’s action as constituted against the 2nd Respondent at the lower Court was not an admiralty action in personam as held by the learned trial Judge.
He relied on the case of The Owners of the MV ‘MSC AGATA’ & Anor v. Nestle Nigeria Plc & Anor (2012) LPELR-CA/L/807M/09.
Counsel also submitted that the same cause of action can give rise to both an ‘action in rem’ and an ‘action in personam’. He cited the cases ofM.V. Breughel & Ors v. Mondivest Ltd (2018) LPELR-CA/L/394; and Deros Maritime Ltd v. MV ‘MSC Apapa’ &Ors (2014) LPELR-CA/L/960/2010.
On the other hand, in arguing issue four, learned senior counsel submitted that the trial Court was right to hold that the claim is a right in personam, as the statement of claims reveals that the matter was mainly against the 2nd Respondent; that if the action was an action in rem, the Appellant would not have sued the 1st and 2nd Respondents jointly and severally, because an action in rem is targeted at the res itself; and that having obtained judgment in personam against the 2nd Respondent, the Appellant is no longer entitled to maintain an action in rem against the 1st Respondent. He further posited that the actions of the Appellant amounts to an attempt to approbate and reprobate at the same time.
He relied on Sections 2(3) (k) and 5(1)(4) of the Admiralty Jurisdiction Act, Cap A5, LFN, 2010; Pacers Multi Dynamic Ltd v. MV Dancing Sister & Anor (2012) 4 NWLR (Pt.1289) 160, 187; Adeogun v. Fasogbon (2011) 8 NWLR (Pt.1250) 427, 453, 454; and Anchor Limited v. Owners of the Ship Eleni (supra); and MV ‘Western Star’ & 2 Ors v. B.L. Lizard Shipping Co. Ltd (supra).
Learned senior counsel submitted that the cases ofM.V. Breughel & Ors v. Mondivest Ltd (supra); and Deros Maritime Ltd v. MV ‘MSC Apapa’ &Ors (supra) relied on by the Appellant’s counsel do not support the contention that cause of action can give right to both an action in rem and an action in personam, as the issues dealt with in those cases had no bearing on the point.
Learned senior counsel further submitted that the issue in this appeal is not whether the same cause of action can give rise to both an action in rem and an action in personam, but whether a party can pursue both rights of action concurrently or whether a party who has obtained a judgment in personam can subsequently obtain judgment in rem in respect of the same cause of action. He posited that the Appellant lost the right to pursue the claim directly against the 1st Respondent and maintain the arrest order obtained on 26th October, 2016, because of the judgment obtained against the 2nd Respondent.
He cited the cases of Anchor Limited v. Owners of the Ship Eleni (1956) 1 NSC 42, 44; and MV ‘Western Star’ & 2 Ors v. B.L. Lizard Shipping Co. Ltd (2013) 12 CLRN 161, 181.
RESOLUTION
The effect of Section 251(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Section 1 of the Admiralty Jurisdiction Act CAP A5 Laws of the Federation of Nigeria 2004; and Sections 7 and 8 of the Federal High Court Act is to confer on the Federal High Court, the admiralty jurisdiction as Court of first instance in Nigeria.
One of the most attractive and most significant features of the admiralty jurisdiction of the lower Court is the possibility of instituting an ‘action in rem’, that is directly against a Vessel, usually by getting an order arresting the Vessel after a Writ of Summons has been issued, wherein the Vessel is made the Defendant to a suit. The aim of this is usually to ensure that the Plaintiff is assured of reaping the fruits of judgment in the event of a successful outcome, due to the peculiar nature of the shipping industry.
The Apex Court in PACERS MULTI-DYNAMICS LTD v. THE M.V. DANCING SISTER & ANOR (2012) LPELR-7848(SC)(P. 18), paras. B-C) Per RHODES-VIVOUR, J.S.C., defined an action in rem thus:
“An admiralty action in rem is a proceeding against a ship, the res, where the ship is arrested. By the arrest the owner of the ship is compelled to enter appearance and defend the ship. The owner is enjoined to answer to the judgment of the Court to the extent of his interest in the property.”
See: RHEIN MASS UND SEE & ORS v. RIVWAY LINES LTD (1998) LPELR-2948 (SC); BRONWEN ENERGY TRADING LTD v. OAN OVERSEAS AGENCY NIGERIA LTD & ORS (2014) LPELR-24111 (CA); and M. V BREUGHEL & ORS v. MONDIVEST LTD (2018) LPELR-44728(CA).
An action in personam on the other hand, does not afford the Plaintiff the unique and very specific features of an action in rem. Action in personam was defined and differentiated from an action in rem in the case of DEROS MARITIME LTD v. M.V. “MSC APAPA” & ORS(2014) LPELR-22720(CA), thus:
“The case of Rhein Mass Und See GMBH v. Rivway Lines Limited (Supra) is instructive. At page 277 Ogundare JSC delivering the judgment of the Court observed: “….It is conceded before us by Mr. Agbakoba that in the enforcement of this cause of action, plaintiff could proceed either against the vessels concerned or against their owner(s) or both. Where plaintiff proceeds against the vessel, the action is one in rem and where he proceeds against the owner, the action is one in personam. Defining the expression “action in personam, Coker J.S.C. delivering the judgment of this Court in Nigerian Ports Authority v. Panalpina (1973) 5 SC 77 at Pp 96-97; (1923) ANLR 408, 422 observed: “Etymologically, an action in personam is an action brought against a person, an action to compel to do or not to do a particular thing or take or not to take a particular course of action or inaction. ”
Actions for damages in tort or for breaches of contract are clearly directed against the person as opposed to actions which are brought for the purpose of declaring or challenging a status, like proceedings under the Matrimonial Laws of the country or legitimacy or an admiralty action directed against a ship or the res (and so known as an action in rem) or the like. Generally therefore, all actions which are aimed at the person requiring to do or not to do or to take or not to take an action or course of conduct must be and are actions in personam.”
From the facts of the case at trial, there is no doubt that the lower Court regarded the matter as an action in rem, hence the grant of an order of arrest. This is probably because the action contained elements that can validly ground an action in rem.
See: Sections 2(3)(k) and 5(4)(a) of the Admiralty Jurisdiction Act.
The germane question that must therefore be answered at this point is whether the action at the trial Court was an action in rem or an action in personam. There is no doubt that the same sets of facts may validly ground both an action in rem and an action in personam, with the Plaintiff deciding which one he would employ in pursuing his claim.
In order for an Appellate Court to determine whether the proceedings below constituted one of the two options, it has to look at the manner in which the Plaintiff at trial pursued the matter, and the first port of call must of necessity be the Writ of Summons. The heading of the Writ of Summons filed in this matter at trial, seen at page 8 of the records of appeal clearly states thus:
ANCOMARINE SERVICES COMPANY LIMITED PLAINTIFF
(suing by its lawful attorney Queens konsult limited) AND
1. THE ‘M/V. SAM PURPOSE’ (EX-TAPTI) -. DEFENDANT
2. TRANSNAV PURPOSE NAVIGATION LIMITED . DEFENDANT
(The Owners/Technical Managers of M/V Sam Purpose (Ex-Tapti)
To THE DEFENDANTS.
This is a strong pointer to the fact that the suit of the Appellant was one in personam. While instituting an action in rem, the Plaintiff is not expected to sue the Owners or join them in the suit whether severally or not.
He is to go after the ship and if the Owners wish to do the needful to get their ship released, then the law will allow same. Order 2 Rule 3(3) of the Admiralty Jurisdiction Procedure Rules clearly states that a matter cannot be instituted in rem and in personam at the same time.
The case of MV Western Star and Ors v. BL Lizard Shipping Company(supra) cited by the learned silk is indeed in support of the above position.
In sum, once an action which ought to be brought as an action in rem, is instituted in a manner where both the Ship itself and the Owners are made parties, then such an action cannot be an action in rem, but in personam and loses the distinctive features of an action in rem.
The implication of the above to the facts of this appeal is that the right to proceed with the matter as an action in rem, which would have kept extant the right to arrest of the Vessel was lost, even before the judgment in personam.
It must be clearly stated that there are quite a number of circumstances under which an arrested Vessel may be released, and the common thread which runs through all of them is either a real satisfaction of the debt or obligation upon which the Vessel was arrested in the first place, usually effected through the provision of a guarantee for the sum owed, or in circumstances where it is found that there was no basis for the arrest in the first place.
There was no basis for the arrest of the ship since the matter is in personam.
Thus issues 3 and 4 are resolved in favour of the 3rd and 4th Respondents.
In summation, the Appeal fails and is hereby dismissed. The decision of the lower Court delivered on 19th January 2018 in Suit No: FHC/L/CS/1438 is affirmed. There shall be costs of Two Hundred Thousand Naira Only (N200,000) in favour of the 3rd and 4th Respondents against the Appellant.
MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the lead judgement delivered by my learned brother Jamilu Yammama Tukur, JCA in this appeal, I found all the views expressed and the conclusions reached on the Preliminary Objection by the 2nd and 4th Respondents as well as the issues submitted for decision in the appeal, are the same with mine.
I do not wish to say more than that I completely agree with the lead judgement and join in dismissing the appeal for being devoid of merit.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the comprehensive judgment prepared by my learned brother, Jamilu Yammama Tukur, J.C.A.
Appearances:
Jerry OmoregieFor Appellant(s)
O.O. Kushimo for 1st Respondent.
F. Falade for 2nd Respondent.
Dr. D. Olanipekun, SAN with him, Chisanya Attamah Veronica Obi and O. Oluwafemi for 3rd & 4th RespondentsFor Respondent(s)
