BRONWEN ENERGY TRADING LIMITED v. OAN OVERSEAS AGENCY NIGERIA LIMITED & ORS (2014)

BRONWEN ENERGY TRADING LIMITED v. OAN OVERSEAS AGENCY NIGERIA LIMITED & ORS

(2014)LCN/7622(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 9th day of December, 2014

CA/L/932/2011

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES NOT COVERED BY A GROUND OR GROUNDS OF APPEAL ARE INCOMPETENT

It is settled law that issues not covered by a ground or grounds of appeal are incompetent and liable to be struck out, No issue can stand if not arising from the ground(s) of appeal, See EMESPO I. CONTINENTAL LTD V CORONA SHIFAH – RTSGESELLSCHAFT & ORS (2006) 5. S.C. (Pt 1) and ADELAJA V FANOIKI (1990) 2 NWLR Pt.131 137 per. YARGATA BYENCHIT NIMPAR, J.C.A.

ACTION: ACTION IN REM; AN ACTION IN REM IN ADMIRALTY

The suit was commenced as an action in rem. An action in rem was defined in the case of CHIEF REGISTRAR, HIGH COURT OF LAGOS v. VANIS 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 extent of his interest in the property.”
See also PACERS MULTI – DYNAMIC LTD V. THE 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 proceeding against a ship, the res, where the ship is arrested. By the arrest, the owner of the ship is compelled to either 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” per. YARGATA BYENCHIT NIMPAR, J.C.A.

ACTION: AN ACTION INPERSONAM; THE DEFINITION OF AN ACTION IN PERSONAM AND HOW IS AN ACTION IN PERSONAM COMMENCED

Now how is an action in personam commenced under the then Rules? Before that, an action in personam was defined as follows:
‘An action in personam is an action to compel him to do or not to do a particular thing or take or not to take a particular cause of action or in action. Action for damages in trust or for breaches of contract are clearly directed against the person as opposed to actions which are brought for the purposes of declaring or challenging a status, like proceedings under matrimonial laws of the country or an admiralty action directed against a ship or the res (also known as action in rem) or the like. Generally, therefore, all actions which are aimed at the person requiring him 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.” See NIGERIAN PORTS AUTHORITY V. PANALPINA WORLD TRANSPORT AUTHORITY & ANOR (1973) ALL NLR 408. per. YARGATA BYENCHIT NIMPAR, J.C.A.

COURT: COMPETENCE OF THE COURT; HOW TO ASCERTAIN THE COMPETENCE OF SUIT

Expectedly, the trial court should have determined the issue of competence since he deferred it to judgment stage. His failure to do is wrong because competence of a suit has a direct bearing on the jurisdiction of the court. See W.A.E.C. v. AKINKUNMI (2008) 9 NWLR (Pt 1091) 151 where TABAI J.S.C. had this to say:

“It is settled that in ascertaining the competence of a suit, the determining factor is the plaintiff’s claim. On this question however, it is not the manner in which the claim is couched that matters nor is the categorization given to the claim by the defendant that counts. The court has a duty to carefully examine the reliefs claimed to ascertain what the claim is all about.”
See also the case of THE SHELL PETROLEUM DEV. CO. OF NIG LTD. V CHIEF MARK EJEBU & ANOR (2010) LPELR – 5025 (CA) where this court held as follows:
“It is an established principle of Nigerian Law that where a court lacks competence to try a person or subject matter before it, whatever decision it arrives at on such a person or subject matter is a nullity; NIGERIAN ARMY V AMINU KANO (2010) 41.1 NSCQR 76. If the suit or appeal was not initiated by due process of court and upon fulfillment of any condition precedent to the exercise of jurisdiction the competence of court to adjudicate on the suit or appeal will be adversely affected: MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 342.” Per EKO J.C.A. per. YARGATA BYENCHIT NIMPAR, J.C.A.

COURT: THE PRINCIPLE OF FUNTUS OFFICIO; WHETHER A JUDGE CAN REVERSE HIMSELF CONCERNING ILLEGALLY ADMITTED EVIDENCE AT JUDGMENT STAGE

It is trite that a court can reverse itself on illegally admitted evidence, see the holdings of OREDOLA, J.C.A. in the case of BASIRU MOHAMED V THE STATE (2010) LPELR – 9019 (CA) where he said thus:
“Consequently, when evidence has been wrongly admitted, it does not qualify as a legal evidence and the court has a duty to expunge it from the record, Such evidence should be regarded as if it had not been adduced or tendered and admitted. The court cannot rely on it in reaching its ultimate decision.”
See also AGBAJE v ADOGUN (1993) 1 NWLR (Pt 269) 216 at 272. It is therefore lawful for a Judge to reverse himself concerning illegally admitted evidence at judgment stage. A judge can do that concerning evidence but not on other issues as he cannot revisit an issue he had determined either to reaffirm or reverse himself, however a Judge possess power to set aside its judgment which is a nullity not otherwise. It is rooted in the principle called functus officio. The Supreme Court in SANUSI v AYOOLA (1992) NWLR Pt (264) 275 had this to say:
“There is the well settled elementary and fundamental principle of law that a court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such cause.” per. YARGATA BYENCHIT NIMPAR, J.C.A.

COURT: PERVERSE JUDGMENT; WHEN IS THE JUDGMENT OF THE COURT SAID TO BE PERVERSE

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

BRONWEN ENERGY TRADING LIMITED Appellant(s)

AND

1. OAN OVERSEAS AGENCY NIGERIA LIMITED
2. THE VESSEL MT ‘OCEAN SUCCESS’
3. MASTER OF THE VESSEL ‘OCEAN SUCCESS’ Respondent(s)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is on the judgment of HON. JUSTICE D. D. ABUTU, (CHIEF JUDGE) of the Federal High Court sitting in Lagos and delivered on the 14th March, 2011 wherein the claim of the 1st Respondent as Plaintiff was granted. Dissatisfied with the said judgment, the appellant, (the 3rd defendant at the trial court) filed a Notice of Appeal which was amended with leave of court now disclosing 4 grounds of appeal.

The Appellant’s brief of argument was dated and filed on 11/9/12, a reply brief dated 7/2/14 were adopted on 22/10/14 while the 1st Respondent’s brief of argument dated 20/11/13 and filed same day was adopted 22/10/14.

A brief summary of the facts of the appeal are that the 1st Respondent filed a suit before the Lower Court and the claim states thus:

(i) The total sum of US $1,986,939,97 being the outstanding debt owed the Plaintiff by the defendants for port and cargo dues and ships’ charges and for agency services rendered by the Plaintiff to the 3rd Defendant pursuant to the agreement between the parties.

(ii) Interest on the above outstanding amount of US $1,986,939.97 at the rate of 15% from the date of filing this suit till judgment and at the rate of 10o/o from date of judgment till the date of final liquidation of the total outstanding debt.

(iii) Cost of this action.

The claim is alleged to have arisen from an agreement for services between the 1st Respondent (Plaintiff) and the Appellant (3rd defendant). The 2nd Respondent was arrested upon an order of court granted at the time of filing the suit at the Lower Court.

The Appellant in defence to the claim also counter claimed and sought the following reliefs:

(i) The sum of US $1,000,000 (One Million Dollars being damages for the loss of income due to the 3rd Defendant as agent of Projector SA while the circumvention lasted.

(ii) The sum of US $400,000 (Four Hundred Thousand Dollars) being the calculated daily charter cost of the vessel while the arrest lasted.

(iii) The sum of US N20,000,000 (Twenty Million Naira) being the cost of this action.

(iv) The sum of N100,000,000 (One Hundred Million Naira) for loss of reputation and goodwill as a result of actions of the Defendant to counter claim.

(v) The sum of US $9,500 (Nine Thousand Five Hundred Dollars) being 0.5% charges / cost of issuing the Bank Guarantee.

(vi) Interest on the sum of the Bank Guarantee calculated at 18% per annum (being Central Bank of Nigeria official interest rate) from the date of the arrest till the final determination of this suit.

The appellant by leave of court joined Projector S.A as 5th Defendant. During trial 4th and 5th defendants did not participate in the trial. The matter went to trial with a decision handed down by the trial judge in favour of the 1st Respondent on the 24th March, 2011 thus this appeal.

The 1st Respondent filed a preliminary objection dated 14th February, 2014 on the same date with arguments incorporated at page 5 – 6 of the 1st Respondent’s brief of argument adopted at the hearing of this appeal.
The ground of the objection is thus:

“That issue 1 (One) in the Appellant’s brief of Argument dated the 11th day of September 2012, does not arise from the Notice and Grounds of Appeal filed by the Appellant in respect of this appeal and is therefore liable to be struck out”

The appellant responded in its Reply to 1st Respondent’s brief of argument.

It is necessary to determine the preliminary objection first before proceeding with the main appeal.

The ground of the Preliminary objection is that issue one in the Appellants brief of argument dated 11th day of September, 2012, does not arise from the Notice and Grounds of Appeal filed by the Appellant in respect of this appeal and is therefore liable to be struck out. Arguing the objection, Learned Counsel to the 1st Respondent submitted that an issue for determination consist of a substantial question of law or fact or both arising from the grounds of appeal which when resolved will affect the result of the appeal, he relied on IMOHIKHE V. A.G. BENDEL STATE (1992) 6 NWLR (Pt.248) 396 and NGILARI v MOTHER CAT LTD (1993) 8 NWLR (Pt.311) 370.

He submitted that the issue must therefore arise from one or more grounds of appeal in the amended Notice or the original Notice of Appeal which in turn must arise from the decision appealed against.
Learned Counsel contended that where the issues do not arise from the grounds, they have no relevance, go to no issue and therefore incompetent which ought to be struck out, he relied on OLORUNFEMI V. N.E.B. LTD (2003) 5 NWLR (Pt 812) 1 at 19; Order 6 of the Court of Appeal Rules, 2011 and OKPOKIRI (2000) 3 NWLR (Pt 649) 461; ONIFADE v OLAYIWOLA (1990) 7 NWLR (Pt 161) 130; IBATOR v. BARAKURO (2009) 9 NWLR (Pt 1040) 475 and ADELAJA v. FAMAIKI (1990) 2 NWLR (Pt 131) 137.
In the light of the above, the 1st Respondent urged the court to discountenance issue 1 because it does not arise from any ground of appeal.

In reply, the appellant submitted that issue 1 distilled from Ground 1 challenges the failure of the trial Judge to consider the contention that the Appellant was not the beneficial owner of the vessel thus the suit was incompetent. He submitted that Ground 1 has particulars and arguments which were proffered in support of it, he relied on IBRAHIM V MOHAMMED (2003) 6 NWLR (Pt 819) 615 at 639 – 640.

Issue one of the appellant’s brief states thus:

Having regard to the contention of the Appellant to the effect that the suit of the 1st respondent was not competent, the evidence led at the trial and the fact that the Lower Court reserved the issue in its ruling of 3rd January, 2007 for consideration after taking evidence whether the Lower Court was not wrong in failing to determine the said contention.

It was distilled from Ground 1 and Ground one of the Amended Notice of Appeal states as follows:

1. The Learned trial Judge erred in law in failing to consider the contention of the appellant that it was not the beneficial owner of the vessel and thus the suit was incompetent.

Particulars of Error:
(i) The Learned trial Judge, stated that the issue had been ruled on earlier by him and was already on appeal when in actual fact at the point at which the earlier ruling was made and the earlier appeal filed the owners of the vessel had not entered an appearance or filed any response to the action and the arrest of their vessel.

(ii) The Learned trial Judge in his earlier ruling on the issue had actually stated that the issue could not be determined at the interlocutory stages but should rather be determined at the conclusion of the case.

(iii) There were fresh circumstances which necessitated that the issue of the ownership of the vessel be considered again before the Lower Court.

(iv) The 2nd and 3rd Respondents as owners of the vessel challenged the competence of the suit but the court at the interlocutory stage stated that the issue would be determined at the conclusion of the trial, yet in the final judgment the Lower Court still refused to consider the issue.

(v) The Learned trial Judge at the conclusion of this judgment awarded cost of N20,000 in favour of the 2nd & 3rd Respondents.

An issue is the question in dispute between the parties, it is raised by way of a question and usually a proposition of law or fact in dispute necessary for determination upon which the outcome will affect the appeal. It is therefore a succinct and precise question, weighty and compelling that a decision on it in favour of a party will entitle a party to judgment of the court.

Learned Counsel to the 1st Respondent objected to issue one contending that it does not arise from any ground of appeal as stated by the appellant.
From issue 1 and ground 1 along the particulars reproduced above, one can hardly appreciate the objection. The issue is clearly arising from the alleged failure of the trial court to consider the appellants contention that it is not the owner of the vessel. The particulars to the ground copiously narrated the alleged errors of the trial Judge in arriving at a no decision or decision on the issue. I cannot therefore see how the issue can be said not to arise from the ground. It is a misconception from the 1st Respondent, the objection is lacking in merit. The preliminary objection is hereby dismissed.

The appellant reacted to issue 3 formulated by the 1st Respondent and contended that it is neither a response to any issue raised by the Appellant nor was it arising from the Grounds of Appeal, Appellant argued that a respondent who has not filed a cross appeal is bound and limited to the grounds of appeal filed by the appellant as he cannot raise any issue outside the appellants ground and if he does, such issue must be discountenanced and Struck out as held in UDEME V UGWU (1997) 3 NWLR (Pt 491) 57.

Appellant argued that the issue of the ownership of the vessel was no longer live and did not arise from the judgment of the Lower Court, he relied on NDIC v OKEM ENTERPRISES LTD (2004) 10 NWLR (Pt.880) 107 and OGUNDARE v. OGUNLOWO (1997) 6 NWLR (Pt 809) 360 at 368, And furthermore, that the incompetence of such an issue was reaffirmed by the Supreme Court in AKERE V GOV. OYO STATE (2012) 12 NWLR Pt.1314 24 at 267. Again, that a respondent’s brief is to respond to the issue raised by the Appellant and any failure to do so amounts to an admission, it relied on AROWOLO V AKAIYEJO (2012) 4 NWLR (Pt 1290) 286 304 – 305. Appellant submitted that the 1st Respondent failed to respond to the argument of the appellant in paragraphs 6.22 that the 1st Respondent failed to prove his case as pleaded and at paragraph 6.26 that the 1st Respondent colluded with Projector S. A. as 5th Defendant at the Lower Court.

The court agrees with the appellant that the 1st Respondent who has not filed a cross appeal cannot raise an issue independent of the issues formulated by the Appellant or arising from the appellants grounds of appeal. His duty is to respond just as his name or his title suggest. He is bound by the grounds of appeal raised by the appellant. The role of the respondent in an appeal is circumscribed by the grounds of appeal, See the authority of EZEANWU v. ALTA (2004) 7 NWLR (Pt 873) 486 where the Supreme Court held thus:

‘A party who has judgment in his favour and who has not cross appealed or who has not taken out a respondent’s notice is not entitled to raise any adverse issue arising from the judgment. The only way to show grievance of a judgment is by way of appeal and in certain cases by way of a respondent’s notice.”
The court in the case of AJAO V THE STATE (2011) LPELR – 3700 (CA) held as follows:

“It is apposite to state the principles of law that the purport of a respondent’s brief is to support the judgment appealed against by showing clearly in his brief that the contention of the appellant as to the grounds of errors identified by the appellant are infact meritless. The Respondent had really no power to go outside the grounds of appeal while formulating his own issues for determination, issues formulated by the respondent in an appeal must relate to the grounds of appeal filed by the appellant.”

To raise an issue outside those of the appellant, the respondent must have filed a cross appeal or respondent’s notice, See MOMODU v. MOIMOH (1991) 1 NWLR (Pt 169) 608; OSSAI v. WALANAH (2006) 4 NWLR (Pt 969) 208; UTB (NIG) LTD v. AJAGBULE (2006) 2 NWLR (Pt.965) 447, ONO v JSC, DELTA STATE (2000) 12 NWLR (Pt.682) 444. Where a Respondent ignores the grounds of appeal filed by the Appellant when formulating issues for determination, he is deemed to have conceded to the complaints in the grounds of appeal.

The Respondent has indeed formulated issue 3 outside the grounds of appeal in this judgment. That issue not covered by the grounds of appeal must give way and it is hereby struck out along arguments proffered there under. The 1st Respondent cannot formulate issues outside the grounds of appeal without a cross appeal or Respondent’s Notice. The objection of the appellant is valid and is sustained.

The appellant in its brief of argument formulated 3 issues for determination namely:

i. Having regard to the contention of the Appellant to the effect that the suit of the 1st Respondent was not competent, the evidence led at trial and the fact that the Lower Court reserved the issue in its ruling of 30th January, 2007 for consideration after taking evidence whether the Lower Court was not wrong in falling to determine the said contention on the ground that same was an appeal.

ii. Considering the evidence before the court in the light of Judicial authorities cited by the parties, whether the Lower Court was right in holding that the Appellant’s counterclaim was not proved and that the Appellant had no locus standi to counterclaim

iii. Having regard to the hard facts placed before the Lower Court in evidence and the pleadings of the parties, whether the judgment of the Lower Court is not perverse.

In response to the appeal, and in the alternative the Respondent formulated 3 issues for determination as follows:

1. Whether the case of the 1st Respondent against the Appellant at the Federal High Court was proved on the preponderance of evidence and whether the Learned Trial Judge was right in entering judgment in favour of the 1st Respondent based on the evidence before the court.

2. Whether the Learned Trial Judge was right in dismissing the counter claim of the Appellant at the Federal High Court for lack of proof and or for lacking in merit.

3. Whether the Appellant being in possession of the vessel MT “Ocean Success” and having taken steps to release the said vessel from arrest could turn around to claim that it was not the beneficial owner of the said vessel.

Now to the main appeal, the issues distilled by the appellant shall be adopted as issues for determination in this appeal. The appellant on the first issue submitted that in filing its statement of defence also filed a motion on Notice dated 19th September, 2006 (page 278-284 of the record) wherein it prayed that paragraphs 19, 20 and 21 of its statement of Defence be set down for hearing, these paragraphs are reproduced below:

“19. The 3rd defendant contends that the Honourable Court lacks jurisdiction to entertain this suit as the plaintiff has not disclosed any reasonable cause of action against the 3rd defendant in this suit.

20. The 1st Defendant shall contend that the instant suit is incompetent having been commenced without requisite compliance with the provision of the relevant statutes and rules.

21. The 3rd Defendant denies paragraphs 20 of the Statement of Claim and the Plaintiff’s claim in its entirety same being unfounded, frivolous and vexations and shall urge the Honourable Court to dismiss same with substantial cost.”

Appellant submitted that the motion named above was struck out on the order of the trial court which also ordered that paragraph 19 be taken along the 1st Respondents motion for judgment (paragraph 299 – 301 of the Record) and ordered written addresses. Appellant’s address is at page 303 – 313 while the 1st Respondents address is at pages 315 – 328 of the Record of Appeal. The ruling of the court is at pages 345 – 354 and at page 352 the court held that the claim of the 1st Respondent was competent and that the issue of ownership of the vessel can only be resolved at the hearing. The Appellant appealed against the said ruling but at the end of the determination, the trial court held that the 3rd defendant is not owner of the vessel or charterer but that in a voyage charter – party in which the person liable in an action in personam is not the owner of the ship, the action is to be commenced as an action in personam amongst other conclusions.

Appellant contended that the trial Judge misapplied principles of law and gave several reasons, amongst which are that when the trial Judge had enough materials to decide the issue raised in the preliminary objection which he deferred. Secondly that the 2nd & 3rd Respondents also filed a preliminary objection which the learned trial Judge struck out deferring the issues therein to the final determination but refused to do so when determining the main suit. Thirdly, the trial Judge reversed himself concerning the admission of some documents in his final judgment (pages 737 – 740 of the Record). Finally, that the judgment was full of inconsistencies particularly after finding that the appellant was not the owner of the vessel, the trial court proceeded to dismiss the counter claim and that the inconsistency vitiated the judgment as he relied on BALONWU v IKPEAZU (2005) 15 NWLR (Pt 942) 479 at 526. Appellant further argued that at the point the court found that the appellant was not the owner of the vessel, the court by implication also agreed that it had no jurisdiction in the matter, he referred to ODOFIN V. AGU (1992) 3 NWLR (Pt 329) 315.
Appellant submitted that a court must resolve all issues canvassed by parties before it and failure to do so makes the judgment liable to be set aside, he cited IGWE v A.I.C.E. (1994) 8 NWLR (Pt.363) 459 at 481; BALOGUN v. LABIRAN (1988) 3 NWLR (Pt.80) 66; UKUNNEYI v THE STATE (1989) 4 NWLR (Pt.114) 131 and NKEAKA v NKEAKA (1994) 5 NWLR (Pt.346) 599 at 607.
The appellant argued that the trial court made a summersault in granting the claim of the 1st Respondent when the court stated that in a voyage charter – party in which the person liable in an action in personam is not the owner of the ship, the action is to be commenced as an action in personam. That the court should have dismissed the suit citing BALOGUN IKEPEAZU (2005) 13 NWLR (Pt 942) 479 at 526 to stress the point that a court of law cannot approbate and reprobate nor blow hot and cold.

Appellant contended that by the judgment the trial court endorsed a wrong procedure of commencing an action in personam by an action in rem which is a violation of the practice and procedures governing the admiralty jurisdiction of the Lower Court. That upon the finding that the appellant was not the owner, the suit should have been dismissed, counsel relied on Order 11 R 3(2) of the Admiralty Jurisdiction Procedure Rules which used the word shall, as he found support in the case of BAKOSHI v. CHIEF NAVAL STAFF (2004) 15 NWLR (Pt.896) 268 at 291,
On the use of wrong procedure the appellant cited the case of ORAKUL RESOURCES LTD V N.C.C. (2007) 16 NWLR (Pt.1060) 270 at 303 and DANGOTE v PLATEAU STATE (2001) 19 WRN 125 at 147 to urge the court the court to find for the appellant.

The 1st Respondent did not proffer arguments on this issue because its issue three which was similar to issue one was struck out earlier in this judgment.

It is clear that by the above the trial Judge indirectly pronounced on the objection on competence of the action as an action in rem without determining the motion. The only aspect deferred is the one touching on the ownership of the vessel. The competence of the suit was not reserved by that ruling because the court said the action was one in rem was because ownership of vessel could not be competently determined at that stage. That cannot be said to be an order deferring consideration. The court implicitly overlooked that aspect of the objection touching on competence of the action.
It is clear from the record of appeal that the trial court subsequently settled the issue of who owns the vessel at pages 1107 – 1109 where it found that the appellant is not owner of the vessel but still went on to allow the suit as constituted against the appellant when it said thus:
“Based on the evidence NOW before the court l find that the 3rd defendant is not the owner of the 1st defendant. The law generally is that in a voyage charter party in which the person liable in an action in personam is not the owner of the ship, the action is to be commenced as an action in personam. See Section 5(4) of the Admiralty Jurisdiction Act, 2004……………..
……………………
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In the said BRAITHWAITE V MARITIME SPAIN AFRTCAN LINES S. A (SUPRA) the Court of Appeal stated at page 606 thus:
“A beneficial owner of a ship could either be the legal owner or the equitable owner or even a person who has lawful possession and control of the ship and has benefits and use of it which a legal or equitable owner would normally have.”
I held that the id defendant be (sic) a person in lawful possession and control of the ship is a beneficial owner within the purview of the definition of the term “beneficial owner” in BRAITHWAITE V MARITIME SPAIN AFRICAN LINES S. A. (SUPRA). That ruling is currently on appeal and I have no reason to depart from the view I expressed in that ruling in this judgment notwithstanding that I have in this judgment held that the 3rd defendant is not the owner of the 1st defendant.”
It is very clear that the Lower Court knew that his ruling of 30th January, 2007 was on appeal but still with the change in circumstances, he was not departing from the position he held.
It is settled principle of law that a court should determine all issues presented to it before judgment, it is a duty. The Supreme Court made the point in the case of COOKEY v FOMBO (2005) 15 NWLR (Pt 941) 182 thus:

‘As a matter of general principle, a court should deal with and determine all the issues placed before it for determination. There are however, some recognized exceptions, for example where an issue is subsumed in another issue.”
See OBI NWANZE OKAYI & 24 ORS v. NJOKANMA & ORS (1991) 7 NWLR (Pt 202) 131 at 146; BALOGUN v. LABIRAN (1988) 3 NWLR (Pt 80) 66 at 80.

The question of competence of the claim before the court was over shadowed by the way the claim was couched and the judgment found for the 1st Respondent without resolving it. At the point of judgment the
challenge of competence should not have been subsumed into the claim that was determined by the court. It cannot be said to be still alive when the main claim had been determined. Since the trial court gave judgment against appellant it can be said that the trial court failed to resolve it. After judgment, there was nothing more for the court to resolve when liability has already been ascribed on the same process that was challenged.
It was wrong of the trial Judge not to pronounce on the competence of the suit and to proceed to determine the suit. If it was deferred until judgment, it behooves on the court to still make a pronouncement on the objection taken on the competence of the suit one way or the other.

Was the 1st Respondent’s claim competent as action in rem? Going by the definition above, the action had nothing to do with the ship because it was purely a claim against an agent for services and that was why the trial court at the end of the matter resolved that the 2nd & 3rd Respondents had nothing to do with the claim. Meanwhile the vessel was arrested and detained at the instance of the 1st Respondent unjustifiably.

Going by the pleadings, the action should have been one in personam and as pointed out by the appellant the procedure for initiating the two are different. Under the rules applicable an action in rem can be initiated in the following manner:

Order 11 Rule 2 (1): Every writ of summons in an action in rem shall be accompanied by a statement of claim.

(2) In an action in personam, it shall be sufficient for the plaintiff to state his claim in his application in writing for the writ of summons briefly in a general form or he may deliver to the Registrar at the time of making the application for the writ of summons, particulars of his claim in any form which shall give the defendant reasonable sufficient information as to the details thereof and such statement shall be fixed to the form A’ specified in the schedule to these Rules.

Furthermore Order IV (1) Provides thus:

Order IV (1): The writ in proceeding commenced as an action in rem shall specify a relevant person in relation to the maritime claim concerned as a defendant and shall be in form B in the schedule to the Rules.

(2): The writ in a proceeding commenced in an action in rem against a ship or other property shall identify the ship or property.”

Now how is an action in personam commenced under the then Rules? Before that, an action in personam was defined as follows:
‘An action in personam is an action to compel him to do or not to do a particular thing or take or not to take a particular cause of action or in action. Action for damages in trust or for breaches of contract are clearly directed against the person as opposed to actions which are brought for the purposes of declaring or challenging a status, like proceedings under matrimonial laws of the country or an admiralty action directed against a ship or the res (also known as action in rem) or the like. Generally, therefore, all actions which are aimed at the person requiring him 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.”
See NIGERIAN PORTS AUTHORITY V. PANALPINA WORLD TRANSPORT AUTHORITY & ANOR (1973) ALL NLR 408.

Order 11 R 3(3) clearly provides thus:

‘A proceeding commenced in an action in personam shall not be commenced by the same initiating process by which a proceeding is commenced as an action in rem.”

This provision confirms that the procedures are different and as seen above the procedure for action in rem is specialized and detailed. Action in personam is like the normal standard form of initiating a claim in the High court and it is just the heading and subject matter that differs.

Looking at the claim of the 1st Respondent, it is clearly an action in personam and not one to have been commenced in rem. The claim had nothing to do with the vessel arrested. The connection between the actions or services that gave rise to the claim had nothing to do with the vessel or its owners. This is confirmed by the judgment of the court that also found so but tried to justify it by saying at pages 1107 – 1109 of the record of appeal thus:

“Based on the evidence now before this court. I find that the 3rd Defendant is not the owner of the 1st Defendant. The law generally is that in a voyage charter – party in which the person liable in an action in personam is not the owner of the ship, the action is to be commenced as an action in personam. See Section 5(4) of the Admiralty Jurisdiction Act, 2004. RHEIN MASS UND. See GMBH V RAILWAYS LINES LTD (SUPRA). However this court in a ruling on the same issue in this case on 3rd of January 2007 when the evidence now before the court particularly Exhibit 18c was not before the court, relying on the decision of the Court of Appeal in BRAITWAITE v. MARITIME SPAIN AFRICAN LINES S. A. (SUPRA) at page 606 and M. V. S. ARAZ v. LPG SHIPPING S. A. (SUPRA) at page 732 came to a conclusion that the 3rd Respondent in the circumstances of this case is a beneficial owner of the 1st defendant. In the said BRAITWAITE V. MARITIME SPAIN AFRICAN LINES S. A. (SUPRA) the Court of Appeal stated at page 606 thus:

‘A beneficial owner of a ship could either be the legal owner or the equitable owner or even a person who has lawful possession and control of the ship and also has benefits and use of it which a legal or equitable owner would normally have.’
I held that the 3rd Defendant be (sic) a person in lawful possession and control of the ship is a beneficial owner within the purview of the definition of the term ‘beneficial owner’ in BRAITWAITE V MARITIME SPAIN AFRICAN LINES S. A. (SUPRA). That ruling is currently an appeal and I have no reason to depart from the view I expressed in that ruling in this judgment not withstanding that I have in this judgment held that the 3rd defendant is not the owner of the 1st Defendant.”

The issue is upon the finding that the Appellant was not owner of the 2nd Respondent, the trial court found too that the claim had nothing to do with the 2nd & 3rd Respondents to warrant the label of appellant as beneficial owner of 2nd Respondent. Could the Appellant be beneficial owner of a vessel that had nothing to do with a claim? My answer to the above question is NO. If so, the circumstances of this case did not warrant the categorization of the appellant as a beneficial owner because the claim is purely one in personam and not an action in rem. The claim had nothing to do with the ship. The trial court was misled by the pleadings of the 1st Respondent in the Amended Statement of claim dated 22nd July 2008. The court should have studied the pleadings well. At the end of trial, it was clear that the 2nd & 3rd Respondents had nothing to do with the claim which should have been one in personam but for the misrepresentation of pleaded facts which were not proved during trial.

And when jurisdiction is challenged, a trial court is under a duty to determine it first before going on. I therefore agree with the appellant that the trial court was wrong not to determine the issue of competence of the suit at all. However the error is not one that can nullify the judgment, see the case of BAYOL v. AHEMBA (1999) 10 NWLR (Pt.623) 381 where the court held thus:
“But it must be emphasisd that it is not every slip or error committed by the court that leads to reversal of judgment of that court by an appellate court. For a slip or an error in a judgment to lead to its reversal by an appellate court, it must have substantially affected the outcome of the decision. It is therefore not enough to allege error or ship in the judgment in question but the party complaining must demonstrate that the error or slip substantially affected the result of the decision as to result in a substantial miscarriage of justice.”

On the contention that the trial Judge reversed himself on the admissibility of documents, and that he should have reversed himself on the issue of competence of court. It is trite that a court can reverse itself on illegally admitted evidence, see the holdings of OREDOLA, J.C.A. in the case of BASIRU MOHAMED V THE STATE (2010) LPELR – 9019 (CA) where he said thus:
“Consequently, when evidence has been wrongly admitted, it does not qualify as a legal evidence and the court has a duty to expunge it from the record, Such evidence should be regarded as if it had not been adduced or tendered and admitted. The court cannot rely on it in reaching its ultimate decision.”
See also AGBAJE v ADOGUN (1993) 1 NWLR (Pt 269) 216 at 272. It is therefore lawful for a Judge to reverse himself concerning illegally admitted evidence at judgment stage. A judge can do that concerning evidence but not on other issues as he cannot revisit an issue he had determined either to reaffirm or reverse himself, however a Judge possess power to set aside its judgment which is a nullity not otherwise. It is rooted in the principle called functus officio. The Supreme Court in SANUSI v AYOOLA (1992) NWLR Pt (264) 275 had this to say:
“There is the well settled elementary and fundamental principle of law that a court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such cause.”

A court cannot sit on appeal over its ruling or judgment except if there is statutory power to do so. Therefore, the trial court having deferred the question of competence and when it delivered its judgment did not rule on the issue; he cannot revisit it because that would have amounted to sitting on appeal. By the judgment the trial Judge ended all issues within the suit. It is so whether by pronouncement or failure to pronounce on such issues.
A party can challenge such failure on appeal but the trial court lacks the jurisdiction to revisit its ruling or judgment in this circumstance.

The challenge on the style of the judgment of the trial court is not attacking the reasoning or how an issue was resolved. There is no one accepted style of writing judgments as long as important parameters are considered and issues determined. The challenge here is not on lack of evaluation or appreciating of issues but the style of the trial Judge which I find inappropriate in this circumstance. Counsel should refrain from such attitude.
The alleged inconsistency, lack of appreciation of issues or evaluation of evidence can be a ground of appeal to be determined appropriately but not style adopted in writing the judgment.
The question to be resolved here is whether a non owner of a vessel or charterer can be sued both in rem and in personam all at the same time and by one procedure? It should be noted here that this is a matter not covered by the ordinary rules of the High Court but the Admiralty Jurisdiction Procedure Rules, what do the rules say?

Order ii of the Admiralty Jurisdiction Procedures Rules provides for commencement of actions, forms to use and how a claim should be heeded. Order ii Rule 3(3) specifically states that an action in personam shall not be commenced like one in rem. It provides thus:

Order ii Rule 3(3):
‘A proceeding commenced as an action in personam shall not be commenced by the same initiating process by which a proceeding is commenced as an action in rem.”

On the above alone, the initiating processes are different so one can be mistaken for another neither can one be turned into the other midstream,
It is clear therefore that under the 1993 Rules you cannot initiate an action in rem as one in personam. One claim might involve claims under both, like an action in rem could include claims in personam but the substantive claim must be one that must be one in rem. The commencement of the action here was wrong. The authority of RHEIN MASS UND SEE GMBH V RIVWAY LINES LTD (1998) 5 NWLR (Pt.549) 265 at 277 – 278 is not applicable in this case because there is no connection between the services rendered by the 1st Respondent to the 2nd Respondent with the vessel “Ocean Success”.
I find for the appellant under this issue.

ISSUE TWO

The Appellant under issue 2 questioned the holding that the Appellants counter claim was not proved and that the appellant had no locus standi to counterclaim.

proffering its argument on the issue, the appellant quoted from the judgment of the trial court (pages 1113 – 1114 of the Record) where the counter claim was dismissed and the reasoning of the trial Judge which basically was that there was no evidence to show that the Appellant (3rd defendant) was agent to Projector S. A. and secondly, that the appellant is not owner of the 2nd Respondent and also not the charterer of the said 2nd Respondent. The appellant submitted that but for the above, the counterclaim would have succeeded, it further referred to Exhibit 1, 2, 4, 5, and 6 tendered by the 1st Respondent which all show the agency relationship between the appellant and Projector S. A. This, the appellant submits is admission against interest as defined by the Supreme Court in the case of ONYENGE V EBERE (2004) 13 NWLR (Pt 889) 39 and facts admitted required no proof as held in NAS LTD V UBA PLC (2005) 14 NWLR (Pt 945) 421 at 435 and BAJODEN V IRON WANNIMU (1995) 7 NWLR (Pt.410) 655.
The Appellant called attention to Exhibit 20C at page 91 of the Record where Counsel to 1st Respondent admitted agency relationship between the Appellant and Projector S. A. Learned Counsel argued that the trial couft therefore had enough evidence upon which to find for the agency and that an agent is not liable for acts done on behalf of a disclosed principal, he relied on NIGER PROGRESS LTD V NEL CORP (1989) 2 NWLR (Pt 107) 68; QUA STEEL V BASSEY (1992) 5 NWLR (Pt.239) 312; ORIJI V. ANYASO (2000) 2 NWLR (Pt 643) 1; VASSILER v PAS INDUSTRIES LTD (2000) 12 NWLR (Pt.681) 347; LEVENTIS TECHNICAL LTD V PETROJESSICA ENTERPRISES LTD (1992) 2 NWLR (Pt 224) 459.
The appellant submitted that the trial Judge was therefore wrong to have entered judgment in favour of the 1st Respondent. It proceeded to question the basis on which the court granted the reliefs of the 1st Respondent in a suit which was wrongly commenced in rem. Appellant observed that the trial court relied heavily on Exhibit 14 at page 709 of the Record; Exhibit 15 at page 710 – 713 of the Record and paragraph 23 of the 1st Respondents Amended Statement of claim to submit that the Exhibits support the case of the Appellant.

The appellant complained that the trial court refused to consider the provision of Section 13 of the Admiralty Jurisdiction Act; Order XI (3) of the Admiralty Jurisdiction procedure Rules; the case of COMPANIA NAVEGACIAN FINANCIERA BOSNIA SA V MERCANTILE BANK OF NIGERIA LTD (1980) 2 NSC 17 and NKEAKA V NKEAKA SUPRA. That if it had considered these authorities the decision would have been different.
Appellant submitted that the court proved the counterclaim when it held that the appellant was not the owner of the 2nd Respondent (page 1107 of the Record) and flowing from that the arrest of 2nd Respondent (the vessel) for debts owed by the Appellant was wrong and there was nothing more to prove in a claim for damages. That to proceed against the appellant it must be proved that the appellant is the owner of demised charterer of the vessel failing which such arrest and detention is deemed wrongful arrest, he relied on “THE BENITA” (1966) 2 LLOYDS REPORT 417 to submit that the 1st Respondent failed to prove that the Appellant is the owner of the vessel to justify the claim and the arrest is wrongful. It is so because and in such cases, there is no Cause of action in rem against the ship and 1st Respondent is therefore liable for cost incurred in securing release of the vessel.
Appellant justified the claim for damages under Admiralty Jurisdiction Act (Cap A5) LFN 2004, Section 13. Furthermore, appellant contended that there are 2 principal claims in a wrongful arrest situation and they are statutory compensation and damages. That Section 13 above provides for damages while Admiralty Jurisdiction Procedure Rules, Order XI (2) provides for statutory compensation. Appellant argued that the above provision is not a bar to an aggrieved party because such has a choice of either claiming under the Rules (Admiralty Jurisdiction Procedure Rules) or bring a fresh action claiming actual damages suffered, relying on COMPANIA NAVEGACIAN FINANCIEM BOSNIA SA V MERCANTILE BANK OF NIGERIA LTD (1980) 2 MSC 17 and ORDER XI (3) of the Admiralty Jurisdiction Procedure Rules. On the basis of above, the appellant submitted that their counterclaim should have succeeded as the 1st Respondent did not deny the counterclaim in its pleadings. The Appellant further argued that the 1st Respondent undercut it in dealing directly with its principal as admitted by PW1 during cross examination at page 768 – 769 of the Record and also the evidence of DW2 which was not contradicted. Learned Counsel submitted that the evidence of the appellant was not challenged and relied on OFORLETE v. STATE (2000) 12 NWLR (Pt 681) 415 to argue that the court should have relied on the evidence before it. Appellant urged the court to look at documents in the record to give appellant judgment under this issue.

The 1st Respondent argued issue two and submitted that the counterclaim is set out in the Amended Statement of defence dated 7th August, 2009 set out at page 818 – 874 of the Record of Appeal VOL III and also page 847 – 851 of the Record of Appeal for 1st Respondents reply and Defence to counterclaim.
Counsel to 1st Respondent referred to the finding of the trial Judge at page 1113 – 1114 of the Record of Appeal which he submitted is unimpeachable as special damages requires strict proof as held in AMADI v CHINDA (2009) 10 NWLR (Pt 1148) 107 at 122; ANYANWU v. UZOWUAKA (2009) 13 NWLR (Pt.1159) 445 at 474 and therefore this court should not tamper with the findings of the trial court.

On the claim for $1,000,000.00 (One Million Dollars) as damages, 1st Respondent referred to paragraph 2 of the counterclaim but no evidence was laid in proof of it as no agreement was tendered making the claim speculative which was rightly dismissed. Counsel to the 1st Respondent further argued that DW2’s testimony was hearsay therefore inadmissible under Section 37 and 38 of the Evidence Act, Cap E14 Laws of the Federation of Nigeria, 2011. That being special damages, it must be strictly proved, he relied on ANYANWU V UZOMUAKA (2009) 13 NWLR (Pt 1159) 445.
On the counterclaim for $400,000 (Four Hundred Thousand Dollars) being cost of security, bunker and crew welfare while the lawful arrest of the vessel lasted, the 1st Respondent submitted that it was in conflict with Appellant’s position that he was not the owner of the vessel and that for that period the vessel was under the Admiralty Marshal of The Federal High Court so no security was paid.
On the cost of action in the sum of N20,000,000.00 (Twenty Million Naira) and N100,000,000.00 (One Hundred Million Naira) for loss of reputation and good will, 1st Respondent submitted that they all fall under special damages which also requires strict proof. On the cost of security and the bank guarantee, the 1st Respondent contended that the vessel was arrested upon the order of court and the bank guarantee was also pursuant to the order of court and therefore the counterclaim has no basis and should be dismissed.

This issue calls for reevaluation of the evidence before the court vis a vis the counterclaim. The appellant by the counterclaim sought for the following reliefs:

1. The sum of USD $1,000,000 (One Million Dollars being damages for the loss of income due to the 3rd defendant as agent of Projector S. A. while the circumvention lasted.

2. The sum of USD $400,000 (Four Hundred Thousand Dollars) being the calculated daily charter cost of the vessel while the arrested lasted.

3. The sum of N20,000,000 (Twenty Million Naira) being the cost of this action.
4. The sum of N100,000,000 (One Hundred Million Naira) for loss of reputation and goodwill as a result of actions of the defendant to counterclaim.

5. The sum of USD $9,500 (Nine Thousand Five Hundred Dollars) being 0.5% charges/cost of issuing the Bank guarantee.

6. Interest on the sum of the Bank Guarantee calculated at 18% per annum (being Central Bank of Nigeria official interest rate) from the date of the arrest till the final determination of the suit.”

In proof of the counterclaim the appellant called two witnesses, DW1 and DW2 evidence.
The claim of the 1st Respondent resolved earlier was strictly one in personam and therefore wrongly commenced as action in rem leading to the unnecessary arrest of the 2nd Respondent which led the appellant into taking other steps to secure the release of the 2nd Respondent. Therefore the counterclaim is as a result of the wrongful arrest. The trial court on its own showing awarded cost to the 2nd and 3rd Respondents saying they should not have been parties to the suit in the first place. The trial court ruled that the evidence of the appellant was insufficient to prove the counterclaim.

Let me first state categorically that the judgment sum awarded against the appellant as outstanding fees for services rendered is duly supported by evidence and it stands. The judgment should have been against the appellant and Projector S. A. jointly. Therefore the counterclaim can legitimately stand against the claims touching on the expenses incurred as a result of the wrongful, arrest of 2nd Respondent.
That means that the first head of counterclaim which is general damages for loss income cannot be justified because appellant is liable for the judgment sum as decided by the trial Judge. This is so because competence of claim is determined on the pleadings of the claimant. The claim though misleading led to the wrongful arrest of the vessel. They would need to prove loss of earnings and reputation as claims under special damages. This was not done.

On the second head of claim which touches on the 2nd and 3rd Respondents, even without evidence from the Appellant the court should have awarded damages for wrongful arrest of the 2nd Respondent under section 13 of the Admiralty Jurisdiction Act which provides as follows:

“13 (1) Where in relation to a proceeding commenced under this Act –
(a) A party unreasonably and without good cause –

(i) Demands excessive security in relation to the Proceedings; or
(ii) Obtains the arrest of a ship or other property under this Act; or

(b) A party or other person unreasonably and without good case fails to give a consent as required under this Act for the release from arrest of a ship or other property the party or person shall be liable in damages to a party to the proceedings, being a party or person who has suffered loss or damage as a direct result.

(2) The jurisdiction of the court shall extend to determining summarily, in relation to the proceeding, a claim arising under Subsection (1) of this Section.”

Flowing from the above, even without taking evidence the trial court could summarily determine the issue of damages but it failed to do so. The claim for head of claim number 2 of the counterclaim is justified. There is no doubt that the arrest of the vessel was without justification because ownership of a vessel could be verified before filing the action and it is not a secret because a diligent search could have revealed that the vessel was not owned by the Appellant, meanwhile the 1st Respondent averred that the appellant owned the vessel. There was no just cause for the arrest of the 2nd Respondent. The appellant took the pains to get the vessel released and of course incurred expenses in the process of doing so. It secured a bank guarantee which is not disputed for a fee as interests is charged. DW2 clearly stated these facts but the trial Judge ignored them. The Admiralty Jurisdiction Act allows the court to award damages as cost is awarded after judgment, summarily.

Another power given to the court is under Order XI (2) which provides as follows:

“Order XI (2):
In any case in which an arrest order as aforesaid has been made –

(a) If it afterwards appears to the court that the arrest of any defendant or any order of attachment, sale, or injunction, or any warrant to ship the clearance of or to arrest any ship, was applied for insufficient grounds; or

(b) If the suit in which any such application was made is dismissed or judgment is given against the plaintiff by default or otherwise and it appears to the court that there was no probable ground for instituting such suit.

The court may (on the application of the Defendant made at any time before the expiration of three from the termination of the suit award against the plaintiff such amount not exceeding the sum of Twenty Thousand Naira, as it may seem a reasonable compensation to the Defendant for any loss, injury or expenses which he may have sustained by reason of such arrest, attachment, order of sale or injunction, as aforesaid.”

Subsection (3) provides that no action for damages where compensation is awarded while Subsection (4) says an application for damages for wrongful arrest may be taken summarily. It is clear therefore that wrongful arrest attracts damages. I find for the Appellant that head two of the counterclaim is proved for the number of days the vessel remained arrested pursuant to order of court.

Item 3 of the counterclaim is on cost of action, the claim of the 1st Respondent succeeding means this item cannot be justified since cost follows event and the 1st Respondent proved its claim against the appellant.

Item 4 of the counterclaim was not proved as there was no evidence in proof. I find item 5 proved because the issue of securing a bank guarantee is before the court and duly acknowledged. It was upon that basis that the vessel was released. DW2 also testified on it. There was no challenge to the evidence of DW2 on that point.

I also find for the appellants on item 6 which is on interest.
Pursuant to the powers of this court under Section 15 of the Court of Appeal Act, I find for the appellant as follows:

(i) The sum of US $400,000 (Four Hundred Thousand Dollars) being the calculated daily charter cost of the vessel while the arrested lasted.

(ii) The sum of US $9,500 (Nine Thousand Five Hundred Dollars) being 0.5% charges / cost of using the Bank Guarantee.

(iii) Interest on the sum of the Bank Guarantee at 18% per annum (being Central Bank of Nigeria official interest rate) from the date of the arrest till the final determination of the suit.

I also award post judgment interest at the rate of 5% from date of judgment until the total sum is fully liquidated. I therefore find for the appellant under this issue.

ISSUE THREE
The Appellant here questions whether the judgment of the Lower Court is not perverse in view of the evidence before it. Proffering arguments, the appellant referred to cases which defined the word ‘perverse’ such as AGBOMEJI V. BAKARE (1998) 9 NWLR (Pt 564) 1 at 8; UKALTA V NDINAEZE (1997) 4 NWLR (Pt.449) 251 at 276 and AMADI V N.N.P.C. (2000) 6 SC (Pt 1) on what is miscarriage of justice. Appellant referred to paragraph 4, 15, 16 and 20 of the Amended statement of claim that it was not aware of the agency relationship between Appellant and projector S. A. and that the Appellant was owner of the 2nd Respondent but that documents tendered before the court showed that the 1st Respondent knew of the agency relationship which made the case of the 1st Respondent contradictory, it relied on AKANMU V ADOGUN (1993) 7 NWLR (Pt 304) 218 at 235.
Furthermore, that since the 1st Respondent’s claim revolved around the claim that Appellant owned the vessel which the Lower Court found otherwise, it still failed to dismiss the claim of the 1st Respondent as found in the judgment. Appellant submitted that before a party is entitled to judgment he must present cogent and compelling evidence and relied on ONYEKWUE V ONYEKWUE (1999) 3 NWLR (Pt 596) 482 at 493 to submit that if a party fails to support his case, the case should be dismissed. That a Judge is advised to desist from relying on extraneous matters, as held in the case of OKENYI V. OFURE (1985) 2 NWLR (Pt.5) 1 at 2 and ONIAH V ONYIA (1989) 1 NWLR (Pt 99) 514.
Flowing from the above, appellant submitted that the trial court was making a case for the 1st Respondent when it ruled that Appellant is not the owner of the vessel and having found so, it should not have summersaulted to hold that appellant is the beneficial owner of the 2nd Respondent just because it was found to be in the Appellant’s possession. Appellant relied on OBULOR V OBORO (2001) 1 NWLR (PT.714) 25; OSULU V. OFOLU (1998) 1 NWLR (Pt 535) 532; ONYEJEKUE V. ONYEJEKUE (1999) 3 NWLR (Pt 596) 482 and MUHAMMADU DURIMINIYA V COP (1961) NRNLR 70. Appellant stressed the point that judgment should be based on issues Joined by the parties in their pleadings. He referred to pages 1077 – 1114 where the court made a case for the 1st Respondent and that it came clearly that the 1st Respondent was doing business with Projector S. A. and passed the liabilities onto the Appellant. Appellant referred to the evidence of PW1 which it said was inconsistent with documentary evidence before the court such as Exhibit 5 and 20 on the authority of ALADU v STATE (1998) 8 NWLR (Pt 563) 61 and EMEGOKWE V OKADIGBO (1973) 4 SC 111. Appellant urged the court to discontinuance the evidence of PW1. It further analyzed the contradictions and loopholes in the evidence of the 1st Respondent which it submitted that the court should have seen through the inaccuracies. It further argued that failure to cross-examine on material facts is an acceptance of the facts so stated, and relied on GAJI v PAYNE (2003) 8 NWLR (Pt 823) 583 at 605; MIRCHANDAMI V PINHEIRO (2003) 3 NWLR (Pt.701) 557 at 557 and OMORIGIE V. LAWANI (1980) 3 – 4 SC. 108. Appellant urged the court to reevaluate the evidence before the court in following OKAMGBA V. EKE (2009) 16 NWLR (Pt.1166) 1, MOGAJI V. ODOFIN (1975) 4 S.C. 91 and OYEWOLE v. AKANDE (2009) 15 NWLR pt.1163 119 and LOPEZ V. LOPEZ (1924) 5 MLR 50.
Appellant finally urged the court to find for the appellant and allow the appeal more so as the claim was against all defendants jointly but judgment was entered only against the appellant, it relied on KADZI INT’L LTD V KANO JANNERY LTD (2004) 4 NWLR (Pt 864) 545 at 563 to urge the court to allow the appeal.

The 1st Respondent issue one is the one close to appellants issue 3. Both issues deal with evaluation of evidence. The 1st Respondent reviewed the claim and evidence presented including Exhibits particularly Exhibits 2, 2A, 2B, 2C, 3, 4, 5, and 6. It argued that failure of the appellant to react to Exhibit 6 amounts to admission more so no evidence was presented to contradict Exhibit 6.

1st Respondent contended that no rebuttal evidence was presented by DW2, the witness of the appellant and therefore the claim remained unchallenged with the Judges findings at page 1110 – 1112 of the Record of Appeal (Vol iii). On this basis the 1st Respondent submits that the Judgment is not perverse and unassailable. It relied on ARISA V NTUK (2009) 9 NWLR (Pt 1142) 537 at 59 and UDENGWU v UZUEGBA (2003) 13 NWLR (Pt 836) 136.
Arguing further, the 1st Respondent argued that the appellant never protested when requests were made by the 1st Respondent to pay the outstanding indebtedness as Exhibit 14 attest to the relationship.
On the agency relationship, 1st Respondent submitted that all services rendered by the 1st Respondent on behalf of the Appellant took place in Nigeria and under Section 16 (3) and (4) of the Admiralty Jurisdiction Act, 1991, the Appellant is liable to pay as admitted in Exhibit 5. And that even if the contention of the Appellant that it acted as agent of projector S.A is to be true, it is still liable; it relied on M. V. CAROLINE MAERSK V NOKOY INVESTMENT LTD (2002) 12 NWLR (Pt.782) 472 at 506 – 507 on the application of Section 16 (3) and that the Appellant is bound to pay the outstanding of US $1,986,939.97 due to the Respondent. The 1st Respondent urged the court to find for it and dismiss the appeal.

This issue challenges the judgment appealed against and contends that it is perverse. A perverse judgment is one which overlooked facts and evidence before the court and which amounts to a miscarriage of JUSTICE, See AGBOMEJI v BAKARE (1998) 9 NWLR (Pt 564) 1 at 8.
I agree with the appellant that it is the duty of the court to consider issues presented to it and to resolve or determine same based on evidence presented and the law applicable. It is therefore wrong of the trial Judge to make a case for the parties different from what is presented.
The 1st Respondent failed to prove that the Appellant was owner or charterer of 2nd Respondent. It was also clear that the 1st Respondent knew of the relationship between Appellant and Projector S. A. contrary to its pleadings that no such relationship existed, PW1 in his evidence on cross-examination admitted that it was the Appellant (3rd defendant) that introduced Projector S. A. to them and 1st Respondent provided services to projector S. A. The same 1st Respondent issued Exhibit 6 (reply to Exhibit 5, this is a reply from Appellant as 3rd defendant) admitting owing the sum of US$1,734,812.90. Furthermore, Exhibit 1, 2, 4, 5, 6 all go to show the agency relationship of the appellant and Projector S. A. Exhibit 20c letter of the 1st Respondent’s Counsel acknowledged the fact of agency relationship between Projector S. A. and the appellant.
Again, the court at page 1085 clearly noted that PW1 said services were provided on account of the appellant but the payments were made by projector S. A. on behalf of Promaren Energy Trading Ltd. Prior to that the 1st Respondent acknowledge receiving payments from Projector S. A. on behalf of Bromwen but could not tell exactly how much. These are clear instances and evidence before the court confirming that there was a relationship between the appellant and Projector S. A. but the court turned a blind eye to it. A court of law is under a duty to apply evidence before it to the facts and to decide claims founded on such evidence. It will amount to injustice if clear evidence is ignored thereby leading the court to a perverse decision. See the case of ALAYA V ISAAC (2012) LPELR – 9306 (CA) were this court per OGBUINYA J. C. A. held thus:
‘A verdict of court of law is perverse when it runs counter to the evidence and pleadings before it, a court takes into account matters it ought not to take into consideration, a court shuts its eyes to the evidence or it has occasioned a miscarriage of justice.
See also BARIDIAN V THE STATE (1994) 1 NWLR (Pt.320) 250 at 260; NNORODIM V EZEANI (1995) 2 NWLR (Pt 378) 448 at 467; ONYEKUELU V ELF PET (NIG) LTD (2009) 5 NWLR (Pt 1133) 181; OSUJI V. EKEOCHA (2009) 16 NWLR (Pt 1270) 217; JOSEPH V. STATE (2011) 16 NWLR (Pt.1273) 226.
The non acknowledgment of the relationship between the Appellant and projector S. A. led the court to err in its holdings at page 1110 – 1111 of the Record of Appeal, the judgment, that the relationship did not exist, hear the court:

“The Learned Counsel for the 3rd defendant has submitted that the 3rd Defendant acted as the agent of Projector S. A. in all the transactions between it and the Plaintiff. This cannot be true because by a letter dated 29th March 2006 admitted Exhibit 14 in this case, Projector S. A. has denied that the 3rd Defendant ever acted as its agent, paragraph 1 of Exhibit 14 which was written to the plaintiff by Projector S. A. is in the following terms:

As you will recall the direct relationship concerning the various cargoes on which you had assisted is the relationship between Bromwen and OAN. As you will recall Projector appointed Bromwen to assist with the import of cargoes into Nigeria and Bromwen appointed OAN to assist on the operational side. As such the contractual and commercial relationship is between OAN and Bromwen.”

I am at a loss at the finding of the trial court that the Projector S. A. denied the appellant. Projector admitted appointing the appellant so the appellant is an agent of Projector S. A. even-though the contract for services for which there are outstanding payment was between the appellant and 1st Respondent but it was on behalf of Projector S. A.
The error led the court into entering judgment against the appellant alone even when the said Projector S. A. was a defendant. Projector S. A. is also liable.
I agree with the court that an agent in maritime cases can be liable even when a principal is disclosed. See M. V. CAROLINE V NOLOY INVESTMENT LTD (2002) NSCQR VOL.10 1303 where it was held thus:
“Normally, an agent is not vicariously liable for the default of his principal. However Section 16(3) of Admiralty Jurisdiction Act creates Specific Liability of the agent in the following terms:

– A person who acts as an agent of the owner/ charterer, manager or operator of a ship may be personally liable irrespective of the liability of his principal for the act, default, omission or commission of the ship in respect of anything done in Nigeria……………….
……………………….
……………………….
The liability of the agent in terms of Section 16(3) is dependent on whether the act, default, omission or commission has (or) were in respect of anything done to be done in Nigeria. That the act, default etc was in respect of anything done or to be done in Nigeria by the ship is an essential part of the cause of action and is a material fact that ought to be alleged and proved.”

The above finding further buttresses the needlessness of arresting the vessel or making the 2nd & 3rd Respondents parties to the case in the first place.
The other area of complaint is the holding by the court that though the appellant was not the owner or charterer of the vessel, it was beneficial owner and therefore the suit was competent. The judgment referred to that the decision in BRAITHWAITE V MARITIME SPAIN AFRICAN INVESTMENT which held at page 606 thus:
‘A beneficial owner of a ship could either be the legal owner or the equitable or even a person who has lawful possession and control of the ship and also had benefits and use of it which a legal or equitable owner would normally have.”

The relevance for this statement could be justified before the matter got to judgment because the trial court said it did not have the evidence to fully determine who owns the vessel, but at judgment stage, the evidence was before the court Exhibit 18 which clearly established that the appellant was not owner not charterer and if the holding quoted above was basis for the trial court’s findings then it also erred because the holding talks of the ship which is in issue and in a claim that is strictly an action in rem. Since it was found earlier that this was strictly an action in personam the issue of beneficial owner cannot also arise because the vessel was not in issue. The trial court erred in this regard because the claim was outstanding over a series of services rendered to several vessels and not the one in issue here i.e. the one arrested “Ocean Success”. I agree with the appellant that the trial court ignored relevant evidence in arriving at its conclusion. I find for the appellant under this issue. The judgment sum awarded against the appellant is hereby awarded against the appellant and Projector S. A. jointly and severally.
Flowing from the above therefore, the appeal succeeds partially. Each party to bear its cost.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Yargata Byenchit Nimpar, J.C.A., which I had the privilege of reading in draft.

JAMILU YAMMAMA TURKUR, J.C.A.: My Lord YARGATA BYENCHIT NIMPAR (JCA) afforded me the opportunity before today a draft copy of the judgment just delivered.

Appearances

Chief Anthony I. Idigbe SAN, N. K. Oragwu and O. AdeogunFor Appellant

AND

S. Ogwemoh SAN, B. Olisa and Miss Oluwakemi Sadiku for 1st RespondentsFor Respondent