EASY STREET LIMITED v. MV KOSMOS & ANOR
(2019)LCN/13543(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of June, 2019
CA/L/154A/2014
RATIO
ACTION IN REM: DEFINTION IN ADMIRALTY LAW OR PROCEEDINGS
However, in the case of BRONWEN ENERGY TRADING LIMITED V OAN OVERSEAS AGENCY NIGERIA LIMITED (2014) LPELR 24111 (CA), an action in rem was defined as;
An action in rem was defined in the case of CHIEF REGISTRAR, HIGH COURT OF LAGOS v VAMOS NAVIGATION LTD (1976) ALL NLR 10 as follows: An action in rem in admiralty is primarily a proceeding against a ship or res by way of arrest and is indirectly a process compelling the appearance of the owner of the ship to defend his property thereby impleading him to answer to the judgment of the Court to the extentof his interest in the property? See also PACER MULTI ? DYNAMICS LTD v THEE M.V ?DANCING SISTER? & ANOR (2012) 4 NWLR (PT. 1289) 169 AT 187 where the Supreme Court held thus: ?An admiralty action in rem is a processing against a ship, the res, where the ship is arrested. By the arrest, the owner of the ship is compelled to either appearance and defends the ship. The owner is enjoined to answer to the judgment of the Court to the extent of his interest in the property. PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
ACTION IN REM AND ACTION IN PERSONAM: DIFFERENCE BETWEEN THE TWO ACTIONS
It’s imperative that we look at the distinction between an action in rem and an action in personam.
In the case of DEROS MARITIME LIMITED v M. V. MSC APAPA & ORS (2014) LPELR 22720 (CA), it was held that;
It is not disputed by the parties that for an action in rem in admiralty matters, there is no requirement to obtain prior leave to issue writ of summons for service outside jurisdiction as the defendant vessel is deemed by operation of law to be resident within jurisdiction. But where it is an action in personam and the defendants reside outside jurisdiction, prior leave must be obtained before the writ is issued. Order 2 Rule 3 (3) of the Admiralty Jurisdiction Procedure Rules provides that action in personam shall not be be commenced in an action in rem. When then is an action said to be in rem and when is it said to be in personam? The case of Rhein Mass Und See GMBH v. Rivway Lines Limited (Supra) is instructive. At page 277 Ogundare JSC delivering the judgment observed:It is conceded before us by Mr. Agbakoba that in the enforcement of this 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.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
ACTION IN PERSONAM: DEFINITION
Defining the expression action in personam, Coker JSC 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.”PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
EASY STREET LTD Appellant(s)
AND
1. MV KOSMOS
2. KOSMOS MARITIME CO. LTD Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Lagos state division per Hon. Justice O. E. Abang delivered on 06/12/13, where the lower Court granted the 1st Respondent?s application and ordered that the Respondent be joined as a necessary party to the suit. The Appellant dissatisfied filed a notice of appeal on 18/12/13 containing 6 grounds of Appeal. The Appellant?s brief was settled by Ayo Olorunfemi, Esq and Temitayo Ayo Gaji, Esq of Femi Atoyebi & Co, where four issues were raised for determination;
i. Whether the learned trial judge was right or wrong to have ordered the joinder of the owner of the vessel (KOSMOS MARITIME CO. LTD) to the proceeding before him which was for all intent and purposes an action in rem (GROUNDS 1 & 2)
ii. Whether the learned trial judge was right in his construction of the provision of Order 18 of Admiralty Jurisdiction Procedural Rules (AJPR, 2011) as not being in conflict with the provision of Section 5(4) of the Admiralty Jurisdiction Act, 1991(AJA) and so, the owner of the
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vessel could be joined as a party to the in rem proceeding before him? (GROUND 3)
iii. Whether the learned trial Judge was right when after ordering the joinder of the owner of the vessel (KOSMOS MARITIME CO. LTD) to the proceeding, he held that it would not change the character of the Plaintiff/Appellant?s case? And that the Plaintiff/Appellant should amend, file and serve originating processes on the Defendant/Respondent and the owner of the vessel (KOSMOS MARITIME CO. LTD) within fourteen (14) days of his ruling as a consequence of the order of joinder? (GROUND 4 & 5)
iv. Did the learned trial judge disregard and/or misconstrue the decision of the Supreme Court and the Court of Appeal in RHEINMASS UND SEE GMBH ?MUSTAFA? v AFRO ? ASIAN IMPEX LTD (2002) 14 NWLR (PT. 787) 395 respectively, on what would constitute an in rem action and whether an owner needs join as a party in the proceeding?
The 1st Respondent in response filed its Brief of Argument on the 7/3/19, where it distilled 3 issues, which was settled by Babajide Koku, SAN, Victor Ogude and Ezinne Emedom of Babajide Koku & Co;
a. Whether having
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regard to the facts and circumstance of this matter, the learned trial judge was right in joining the 2nd Respondent as defendant in the matter and consequently ordering the Appellant to amend its originating process (Ground 1, 2, 4 and 5 of the notice of appeal)
b. Whether the learned trial judge was right to holding that Order 18 of Admiralty Jurisdiction Act 1991. (Grounds 3 of the notice of appeal)
c. Whether the learned trial Judge misconstrued the Supreme Court decision in the Rhein Mass Und See GMBH V Rivway Lines Ltd (1998) 5 NWLR PT 549 Page 265 and RHEIN MASS UND SEE GMBH v RIVWAY LINES LTD (Supra) at page 277, PARA H (2002) 14 NWLR (PT. 797) 395 on what constitutes an in rem action and whether an owner needs to be joined as a party..(Grounds 6 of the Notice of Appeal).
APPELLANTS SUBMISSION
The Appellant on issue one submitted that it was settled law that an in rem action is directed at a defaulting vessel; it is a settled doctrine of law and is enshrined in the Admiralty Jurisdiction Act, 1991. He submitted that the provision of Section 5(2) of the AJA allows a party to bring an action ONLY against the res
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(defaulting vessel). An action in rem is a piece of legal machinery directed against a ship alleged to have been the instrument of a wrong doing in cases where it is sought to enforce a maritime or statutory lien or in possessory action against the ship whose possession is claimed, he cited MV ?WESTERN STAR? & 2 OTHERS v B. L LIZARD SHIPPING CO. LTD (2013) 12 CLRN PAGE 161 @ 174 IINES 33 ? 36.
Therefore, once a ship owner is joined in action in rem, the action automatically becomes an in personam action. He relied on DICTIONARY OF SHIPPING LAW ? PROF. HARDY IVAMY, PAGE 2; RHEINMASS UND SEE GMBH v RIVWAY LINES LTD (1998) 5 NWLR (PT. 549) 265 @ 281, B ? D, 277 D ? E and Order V Rule 3 of the Admiralty Jurisdiction Procedure Rules, 2011 (AJPR). The Appellant also cited the case of A.G RIVERS STATE v A.G AKWA ? IBOM (2011) VOL 29 WRN 1 @ 54 LINE 15 (SC) in emphasizing that ?it is clearly the right of the plaintiff to choose the person or persons he wishes to sue?
He further cited the case of RHEINMASS UND SEE GMBH v RIVWAY LINES LTD (Supra) for judicial guidance on the distinction between an
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admiralty action in rem and that permitting the owners (in personam) to appear in a matter well settled. And it was fundamentally hinged on the cause of action the plaintiff has elected having regard to the procedural complexities involved.
The Appellant further submitted that by virtue of the provisions of Section 5 (2) and (3) of the Admiralty Jurisdiction Act, 1991, the Respondent can commence an action against the vessel, MV KOSMOS alone. The combined effect of Section 2(3) (u), Section 2(3),(k),(m) and Section 5(2) & (3) is to make an action against the vessel alone recognizable in law in the circumstance of the case. In aid of the above argument, he cited three following cases;
a) Shipping Law (2nd Ed.) by Robert Grime at Pages 13 & 218;
b) Enforcement of Maritime Claims by D. C. Jackson at page 73;
c) Marine Cargo claims (3rd Ed.) by W. Tetely at Pages 93;
d) Berlingieri on Arrest of ships pages 75, para 21;
e) Afro Asian Impex Ltd & Anor v MV ?Mustafa? judgment delivered by SANYAOLU, J on 23/11/98 @ page 6, last paragraph.
f) MV Mustafa v Afro Asian Impex Ltd
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(2002) 14 NWLR (Pt. 797) 395.
The Appellant further stated that by the provisions of Order 5 (1) of the Admiralty Jurisdiction Procedure Rules 2011, the owner of the res may be named by reference. It complied with this requirement when he named Allied Maritime Inc in its Statement of claim, even if it is contended that Allied Maritime Inc was not the owner of the vessel the sub rule also provides that reference to the relevant person may be by other relevant relationship apart from the owner, that is, the person in control, possession or Demise Charterer of the property named as Defendant. The Defendant also admitted in its statement of Defence that they had a charter agreement with Allied Maritime Inc over the res and subject matter of the suit.
On issue 2, the Appellant submitted that Admiralty Jurisdiction Act, 1991 is the principal legislation for admiralty actions, and when there is a conflict between the provisions of a principal legislation and a subsidiary one, the provision of the subsidiary legislation is void to the extent of its inconsistency. The Appellant in line with Section 5 (4) AJA & Order 18 (1) AJPR satisfied the
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condition required by making reference to relevant persons in a claim, he made reference to paragraph 2, 4, 6, 7, 8, 15 & 17 of its statement of claim.
The Appellant on issue 3, the Appellant re – emphasized the point that an action in rem is one that is solely against the res, and is clearly distinct from the rem action that joins other parties together, he referred to the case of RHEINMASS UND SEE GMBH v RIVWAY LINES LTD (Supra). The Plaintiff/Appellant as he is entitled to elected to initiate an admiralty action in rem, pursuant to Section 5 (2) AJA and THE OWNERS OF THE SHIP ELENI (Supra).
He also submitted that the effect of joinder relates back to the commencement of the action since the Joinder it takes effect from the date the joinder was made by Court, he relied on BALOGUN v PANALPINA WORLD TRANSPORT (NIG) LTD (1999) 1 NWLR (PT. 585) 66 at 83; ODUOLA v OGUNJOBI (1986) 2 NWLR (PT. 23) 508 at 513; LIFF v PEASLEY (1980) AER 623 at 640 ? 643.
This would render the plaintiff helpless since the nature of his case has been changed from in rem to that of in personam, and the rules that apply to actions in personam would apply,
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rendering in essence his claim/writ liable to be struck out for want of jurisdiction, he cited the case of OWNERS OF THE MV ARABELLA v NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (PT. 1097) 182. He urged the Court to hold that the joinder of the owners of the Defendant vessel to the action has changed the nature and character of the Plaintiff/Appellants case from that of an action in rem to an action in personam, he relied on MV ?WESTERN STAR? & 2 OTHERS v B. L LIZARD SHIPPING CO. LTD (2013) 12 CLRN PAGE 161 at 174 LINES 20 ? 33.
On issue 4, the Appellant submitted that based on the doctrine of stare decisis; it was settled law and the cornerstone of our jurisprudence that the decisions of higher Court is binding on the lower Courts. The doctrine of stare decisis is so sacrosanct to our jurisprudence that a lower Court is not even allowed to depart from it even if the decision of a higher Court was reached per incuriam, he relied on the cases of DAL
