CRESTWOOD HOLDINGS LTD v. WEMA BANK PLC
(2019)LCN/12701(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2019
CA/L/842/2011
RATIO
INTERPRETATION: MEANING OF ‘MARITIME’
“The word “maritime”, was defined by the learned author of Black’s Law Dictionary, Eight Edition @ page 987, to simply mean: “1. Connected with or situated near the sea. 2. Of or relating to sea navigation or commerce.”
So also, the word “admiralty”, defined by the same author of Black’s Law Dictionary, Eight Edition @ page 50, as a noun, means: “1. A Court that exercises jurisdiction over all maritime contracts, torts, injuries, or offences. The Federal Courts are so called when exercising their admiralty jurisdiction, which is conferred on them by the U.S. Constitution… 2. The system of jurisprudence that has grown out of the practice of admiralty Courts; MARITIME LAW. 3. Narrowly, the rules governing contract, tort, and workers’ compensation claims arising out of commerce on or over navigable water.” PER TOM SHAIBU YAKUBU, J.C.A.
JURISDICTION: WHERE THE COURT LACKS JURISDICTION
“Therefore, where a Court lacks the jurisdiction to try any matter presented before it, such a decision amounts to nothing as it will be tantamount to an exercise in futility. To underscore the criticality and quitessence of jurisdiction to adjudication, the Supreme Court in a plethora of decided authorities, one of which is Hon. Ehioze Egharevba v. Hon. Crosby Osadulor Eribo & Ors (2010) 9 NWLR (pt. 1199) 411; (2010) LPELR – 9716 (SC); (2010) 3 SCNJ (Pt. 11) 441 at 453 – 454” PER TOM SHAIBU YAKUBU, J.C.A.
JURISDICTION: WHAT DETERMINES JURISDICTION
“The jurisdiction of the Court is determined by the cause of action of the plaintiff as endorsed on the writ of summons or from both the writ of summons and the statement of claim. Where however, an action is commenced by Originating summons then it is the reliefs sought as well as the averments in the affidavit in support of the originating process that would be examined to discern if the Court has jurisdiction.” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES:
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
CRESTWOOD HOLDINGS LTD – Appellant(s)
AND
WEMA BANK PLC – Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
This appeal is sequel to the decision of the Lagos State High Court of Justice, holden at Ikeja Division, rendered on 22 June, 2011. The appellant, being the claimant at the Court below, had claimed that it had obtained an import finance facility from the respondent, to the tune of N336, 000,000. 00 (Three Hundred and Thirty Six Million Naira) for the importation of 10, 000 metric tonnes of Automative Gas Oil (AGO) which was to be picked up from the vessel- M/T Real Peace which had a capacity of 10,000 metric tonnes, offshore Nigeria. However, M/T Real Peace, did not pick up the said product and consequently, another vessel- M/ T Maria was detailed to pick up the said product. That at various times, some other ships such as MT Bahamas, MT Current and MT Garnet, were also involved in picking the product aforementioned. The appellant, alleged that in the course of the transfer of the said product from one ship to the other, and upon conveyance of it to one Teknochem, a storage tank, about 1,065,863 litres of the Automative Gas Oil, in question, could not be accounted for. The parties filed and exchanged their respective pleadings.
The respondent felt that the appellant’s claim, bordered on maritime and admiralty transactions, causes and matters. Hence, the respondent filed a motion on notice, to the effect that the Court below had no jurisdiction to hear and determine the appellant’s action and that the same should be dismissed or struck out. There was a written address filed in support of the motion on notice by respondent’s learned counsel. The appellant’s counsel in opposing the application, also filed a written address. The learned trial judge in his decision, agreed with the respondent’s counsel and declined jurisdiction. The appellant’s action was consequently dismissed. Not unnaturally, the appellant, distraught with the decision, had to appeal against it to this Court for a reversal of that decision.
The appeal was anchored on one ground of appeal. In order to activate the prosecution of the appeal, the appellant’s brief of argument, dated 7th March, 2014, but filed on 30th May, 2014 was by this Court, deemed properly filed on 30th September, 2016. On the other hand, the respondent’s brief of argument, dated 5th May, 2015 and filed on 6th May, 2015, was deemed by this Court, as properly filed on 6th February, 2018. Babatunde Kehinde, Esq., who prepared the appellant’s brief of argument, formulated a sole issue for the determination of the appeal, to wit:
Whether or not the lower Court was right in declining jurisdiction to adjudicate over the Appellant’s action on the ground that same constitutes an admiralty action and/or Whether or not the Appellant’s action as constituted is an admiralty action.
The respondent’s brief of argument, was settled by Olabode Olanipekun, Bolarinwa Awujoola, Winifred Igbokwe (Miss), Adebayo Majekolagbe and Khalid Abbas. In it, the sole issue nominated for the resolution of the appeal, is:
Giving the averments contained in the pleadings of the parties before the lower Court and, particularly the claims of the Appellant (as Claimant) therein, whether the lower Court was wrong to have declined jurisdiction in Suit no: ID/1470/2005
The sole issue(s) suggested by the learned counsel for the respective parties are virtually the same. Therefore, in my consideration and determination of the appeal, I will be guided by the Appellant’s sole issue.
Appellant’s Arguments:
The appellant’s learned counsel contended that the reliefs sought by the appellant in the writ of summons and statement of claim, which determine the jurisdiction of the Court to adjudicate over the action, do not fall within the maritime/admiralty jurisdiction of the Federal High Court. And that the mere mention of vessels, letter of credit, term of carriage, demurrage, warehousing agents and agreements, importation of petroleum products, pricing of the products, bunkering, loading of vessels etc, in a statement of claim per se will not make an action a maritime or admiralty matter and cognizable only by the Federal High Court.
He relied on Onuorah v. KRPC (2005) 2 SC (pt.2) 1 @ 6-7; Okoroma v. UBA (1999) 1 NWLR (pt.587) 359; NV, Scheep v. MVS Araz (2000) 12 SC 164. He insisted that the appellant’s action is cognizable by the Court below and not the Federal High Court. Furthermore, he contended that it is the 1999 Constitution of the Federal Republic of Nigeria, which determines the scope and extent of the admiralty jurisdiction of the Federal High Court and not the Admiralty Jurisdiction Act, 1991 and that since the appellant’s principal claims do not relate to carriage of goods by sea, the action does not fall within the admiralty jurisdiction of the Federal High Court. He placed reliance on Texaco Overseas Nig. Petroleum Company Unlimited v. Pedmar Nig. Ltd. (2002) 7 SC (pt.11) 222.
The appellant’s learned counsel, also contended that Section 1(1) (h) of the Admiralty Jurisdiction Act, 1991 is in conflict with the proviso to Section 251(1) (d) of the 1999 Constitution of the Federal Republic of Nigeria, to the extent that the former purports to confer exclusive jurisdiction on the Federal High Court in any matter having to do with banking or letter of credit transaction and notwithstanding that the transaction is between a bank and its customer. And, that to the extent of the inconsistency between the former and the latter, the former is void and of no effect. He placed reliance on Ayman Enterprises Ltd v. Akuma Ind. Ltd. (2003) 6 SC (pt.2) 44; Trade Bank Plc v. Benilux Nig. Ltd. (2003) 5 SC 1.
Respondent’s Arguments:
The learned respondent’s counsel submitted to the effect that it is a perusal of the appellant’s claim in its entirety as it is reflected in the averments of facts contained in the statement of claim, which enables the Court to determine its jurisdiction in determining the action placed before it. References were made to: Adeyemi v. Opeyori (1976) 9-10 SC 32 @ 49, 51-52; FBN Plc v. Abraham (2008) 18 NWLR (pt.1118) 172 @190; Buhari v. INEC (2008) 19 NWLR (pt. 1120) 246 @ 402. He argued to the effect that from the averments in the appellant’s statement of claim which revealed that there was an alleged loss of some quantity of its Automotive Gas Oil which was occasioned by the delay of its transfer from a mother ship offshore Nigeria to various other ships at different times, the appellant’s claims, were clearly situated on the non-performances of the ships and the unworthiness of the ships involved in this matter. Therefore, the capacity, functionality, schedule and operations of the numerous ships in question having been put in issue which was effectively joined by the respondent, will need to be established at the trial, hence the action can only be determined by virtue of the Admiralty jurisdiction of the Federal High Court which has the exclusive adjudicatory power over such matters.
And that the fulcrum of the appellant’s claim is on carriage of goods by sea with the use of ships/vessels. Furthermore, it was his submission to the effect that the jurisdictional powers of the Federal High Court are donated to it not only under Section 251 (1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, but also under the Federal High Court Act and the Admiralty Jurisdiction Act. And with respect to the exclusive admiralty jurisdiction of the Federal High Court, he referred to Section 251(1) (g) of the 1999 Constitution and Sections 1 and 2 of the Admiralty Jurisdiction Act (AJA), the latter being an Act of the National Assembly by virtue of Sections 251(1) and 252 of the 1999 Constitution. Reliance was placed on Messers NV Scheep v. The MV “S Araz” (2000) 12 SC (pt.1) 164 @ 183-189.
With respect to the appellant’s contention that the learned trial judge judge ought to have considered the appellant’s ancillary claims which it had power to determine and not the principal claim only, the respondent’s learned counsel submitted to the effect that it is settled law that it is the Court which has the jurisdiction to determine a principal claim and ancillary claims that is competent to determine all and not only some of the claims. Okoroma v. UBA (1999) 1 NWLR (pt. 587) 359 @ 378- 389 and Tukur v. Governor of Gongola State (1989) 4 NWLR (pt. 1117) 517 were relied upon. He insisted that the facts in Texaco Overseas Nig. Petroleum Co. Unlimited v. Pedmar Nig. Ltd, supra, relied upon by the appellant’s counsel are not the same with the facts in the instant case, so the latter is inapplicable to the instant case.
The learned respondent’s counsel, with respect to the appellant’s contention that Section 1(1) (h) of the Admiralty Jurisdiction Act is inconsistent with Section 251(1) (d) of the 1999 Constitution, submitted to the effect that the combined effect of Sections 251(1) (g) of the 1999 Constitution and Section 1(1) (h) of the Admiralty Jurisdiction Act, is that admiralty jurisdiction exclusively vests in the Federal High Court, which cannot be whittled down by the proviso to Section 251(1) (d) of the same 1999 Constitution, such that it will be absurd to give preference to a proviso of a constitutional provision over a substantive constitutional provision, in order to defeat the purpose and spirit of the latter. He insisted that Section 1(1) (h) of the Admiralty Jurisdiction Act is consistent with Section 251(1) (g) of the 1999 Constitution and that the proviso to Section 251(1) (d) aforementioned, cannot override the object of the former, that is, Section 251(1) (g).
Resolution:
Jurisdiction is the authority that a Court has in order to decide any matter laid before it or even take cognisance of matters presented before it in a formal way for its decision on such matters. Therefore, where a Court lacks the jurisdiction to try any matter presented before it, such a decision amounts to nothing as it will be tantamount to an exercise in futility. To underscore the criticality and quitessence of jurisdiction to adjudication, the Supreme Court in a plethora of decided authorities, one of which is Hon. Ehioze Egharevba v. Hon. Crosby Osadulor Eribo & Ors (2010) 9 NWLR (pt. 1199) 411; (2010) LPELR – 9716 (SC); (2010) 3 SCNJ (Pt. 11) 441 at 453 – 454, re-echoed the law succinctly, per Adekeye, JSC that:
“Jurisdiction is a term of comprehensive import embracing every kind of judicial action. It is the power of a Court to decide a matter in controversy and presupposes the existence of a duly constituted Court, with control over the subject matter and the parties. Jurisdiction also defines the power of the Court to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which judges exercise their authority. Jurisdiction is equally to Court, what a door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue, because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remains a nullity however well-conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but rather extrinsic to adjudication. Oloba v. Akereja (1988) 3 NWLR (pt. 84) pg. 508; Oloriode v Oyebi (1984) 1 SCNLR pg. 390, Ezomo v. Oyakhire (1985) 1 NWLR pt. 2 pg. 105; Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992): 2 SCNLR pg. 341, Barclays Bank v. Central Bank of Nigeria (1976) 6 SC pg. 175,
African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR pt. 6 pg. 137, Adeleke v. OSHA (2006) 16 NWLR pt. 1006 pg. 608; Attorney General Anambra State v. A – G Federation (1993) 6 NWLR pt. 302 pg. 692, Saleh v. Monguno (2003) 1 NWLR pt. 801 pg. 221. The issue of jurisdiction being fundamental can be raised and challenged at any stage of the proceedings in the lower Court, in the Court of Appeal or even for the first time in the Supreme Court. The issue of jurisdiction being so pivotal can be raised suo motu by the Court so long as the parties are accorded the opportunity to react to the issue.”
The eminent jurist and revered Mohammed Bello, C.J.N. (now of blessed memory) in the judicial words on marble on jurisdiction, in Chief Utuedo Utih & 6 Ors. v. Jacob U. Onoyivwe & 5 Ors (1991) 1 SCNJ 25 at 49, had stated that:
“Jurisdiction is the blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing, blood into it, would be an abortive exercise.”
The reason for this analogy is not farfetched. It is because the life of the flesh is in the blood. In other words, jurisdiction is the life in the action, placed before the Court, for adjudication. In Madukolu & Ors v. Nkemdilim (1962) All NLR 581; (1962) 2 SCNL 341 at 587 – 590, the Federal Supreme Court held on jurisdiction and the competence of a court thus:
“Put briefly, a Court is competent when –
a) It is properly constituted as regards members and qualification of the members of the bench, and no member is disqualified for one reason or another; and
b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
c) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
These three conditions stated above must co-exist before the Court can be vested or clothed with proper competence and jurisdiction. See The Military Administrator Benue State & 20 Ors. v. Captain Clement Abayilo (Rtd) (2001) FWLR (Pt.35) page 604, (2001) 5 NWLR (Pt. 705) 19: Ishola v. Ajiboye (1994) 19 LRCN 35, (1994) 6 NWLR (Pt. 352) 506: Matari v. Dan Galadima (1993) LRCN 335, (1993) 3 NWLR (Pt. 281) 266; A-G., Anambra State v. A-G. Federation (1993) 6 NWLR (Pt. 302) page 692; Odofin v. Agu (1992) 3 NWLR (Pt. 229) page 350.
The jurisdiction of the Court is determined by the cause of action of the plaintiff as endorsed on the writ of summons or from both the writ of summons and the statement of claim. Where however, an action is commenced by Originating summons then it is the reliefs sought as well as the averments in the affidavit in support of the originating process that would be examined to discern if the Court has jurisdiction.
These would be relied on if the facts placed before the Court as contained in the statement of claim or the affidavit in the case of originating summons are clear and unambiguous to enable it determine the issue.
This is because it is the plaintiff who invokes the constitutional right for a determination of his right and accordingly the exercise of the judicial powers of the Constitution vested in the courts.A-G., Oyo State v. NLC (2003) 8 NWLR (Pt. 821) 1; Akande & 2 Ors. v. Busari Alagbe & Anor, (2001) FWLR (Pt. 38) page 1352, (2000) 15 NWLR (Pt. 690) 353; A- G, Federation v. Guardian Newspaper Ltd. & 5 Ors. (2001) FWLR (Pt. 32)93, (1999) 9 NWLR) Pt. 618) 187; Messrs N. V. Scheep & Anor. v. The MV’S Araz & Anor. (2000) FWLR (Pt. 34) 556, (2000) 15 NWLR (Pt. 691) 622; NEPA v. Atukpor (2001) FWLR (Pt. 20) 626. (2000) 1 NWLR (Pt. 693) 96; General Sani Abacha & 3 Ors. v. Chief Gani Fawehinmi (2000) FWLR (Pt. 4) 557, (2000) 6 NWLR (Pt. 660) 228; Okulate & 4 Ors V. Awosanya & 2 Ors. (2000) 2 NWLR (Pt. 646) 530-536.
In the instant case, the Appellant by a writ of summons and a statement of claim both dated 29th December 2005, had claimed against the Respondent, to wit:
(a) The sum N99.817,575 being the value of the outstanding balance of 1.330.901 litres given by the Defendant bank to Enplus @N75/litre
(b) The sum of N79.939,925 being the value of 1.065,863 litres @ N75/Litre of the product declared missing and/or unaccounted for of the product delivered to Technokem’s tank.
(c) The sum N10,323,071 being the outstanding of the sum payable for the product taken by Jumlar on the guarantee by the Defendant bank dated 30/06/03.
(d) The sum of N68,763,000 (Sixty-Eight Million Seven Hundred and Sixty-Three Thousand Naira) as special or specific damages.
Particulars of special damages
i. The sum of US$175,065 or N24,509,100 @ N140/dollar being the cost of hiring of M/T West Queen for 18 days (inclusive of demurrage).
ii. The sum of N2,880,900 being cost of hiring M/T Current.
iii. The sum of N290,000 being cost of hiring fenders/Houses/Transportation for M/T Current.
iv. The sum of. $60,000 (USD) or N8,400,000 @ N140/dollar being the deposit against demurrage forfeited to Vitol by reason of the delay in picking up the product.
v. The sum of N5,761,000 being the value of the 90 metric tons short delivered by Vitol by reason of the delay in picking up the product.
vi. The sum of N20, 000 being the amount paid to Doitram towards the bunkering of M/t Trade Wind Caribe.
vii. The sum of W26,722,000 being the value of the loss suffered by reason of the difference in the selling price of AGO when the L/C dated 5th May, 2004 and the selling price of AGO when the product was eventually delivered after 45 days delay in confirming the L/C.
(e) The sum of N50,000,000 being general damages.
The Appellant (Claimant), in its statement of claim, alleges it is a customer of the Respondent (Defendant) bank.
The Appellant (Claimant) also alleges, among others, as follows:
i. That on/or about July, 14, 2003 the Appellant (Claimant) and the Respondent (Defendant) entered into a contract whereby the Respondent (Defendant) bank granted the Appellant (Claimant) a Trade Finance and/or warehousing Facility of N336,000,000 for the importation of Petroleum Products (i.e. 10,000 mt of Automotive Gas Oil) for 180 days with a cycle of 30 days per transaction.
ii. That the Respondent (Defendant) bank had insisted that the granting of the facility would be conditioned on a buyer, by name Jumlar Ltd., (who also happened to be a customer of the Respondent (Defendant) bank) taking the entire stock of 10,000mt of AGO at the rate of N37.50/litre and had ensured that a proviso to that effect was inserted in the said letter of offer.
iii. That the Respondent (Defendant) bank issued a bank guarantee dated 30th June, 2003 on behalf of the said Jumlar Ltd. to pick the product on arrival at the rate of N37.50/litre.
IV. That it was also part of the agreement that the entire 10,000mt of the said product would be delivered into Eurafric tank, which the Appellant (Claimant) Company was made to understand had earlier been nominated and/or programmed by Jumlar Ltd. to receive the said product on her behalf.
v. That on the strength of the agreement aforesaid, a letter of credit (no.999-030128) was opened on behalf of the Appellant (Claimant) company with Vitol, the second largest oil trading outfit in the world, for 10,000mt of AGO with a pricing formula based on Platt’s on/or about 14th July, 2003.
vi. Respondent (Defendant) bank had undertaken to put in place and/or to programme a 10,000 M/T vessel (M/T Real Peace) to pick the product from the mother vessel on arrival at offshore Lagos in one run.
vii. That the Respondent (Defendant) bank had also held itself as being capable of ensuring that the said vessel would be available to pick the said product (which was expected to arrive within 10 days of confirming the L/C).
viii. That the Respondent (Defendant) bank had maintained there would be no problem securing the vessel since the owners of the said vessel were also their customers.
IX. That the said M/T Real Peace was to pick the entire 10,000mt of AGO in one run at a cost of W1,165,000/metric ton as per the said letter dated 28th April, 2003 from the owners of M/T Real Peace, Magellan Transport Services.
x. That the Appellant (Claimant) Company also got a charter party dated 15th July, 2003 in respect of the said M/T Real Peace.
xi. That under the warehousing agreement, the Respondent (Defendant) bank was to have a right of lien over the product to be financed by them, on arrival.
xii. The Respondent (Defendant) bank thus undertook to get the said vessel in place all in a bid to ensure control over the product on arrival in view of their right of lien over the product and the name of M/T Real Peace was accordingly forwarded to Vitol as the nominated vessel to pick up the product.
xiii. That prior to the arrival of the product and based on the firm assurance of the Respondent (Defendant) bank that the vessel would be available, arrangement had been put in place by the Appellant (Claimant) Company to pay the port charges and obtain the necessary approvals.
xiv. That the product arrived Lagos on 24th July, 2003 and a Notice of Readiness dated 25th of July, 2003 to that effect was dispatched to the Appellant (Claimant) Company to pick up the 10,000m/t from M/T WS Challenger offshore Lagos.
xv. That M/T Real Peace was suddenly not available to pick the said product on arrival; a development which created immediate panic and anxiety in view of the contract with Vitol.
xvi. That the sudden non-availability of M/T Real Peace created so much panic and anxiety that in the process they had to start looking for a replacement/alternative in desperation.
xvii. That of the 4,031 tones (or 4,692,305.10 litres) delivered into Jurnlar’s tank at Eurafric, the Defendant/Applicant bank only credited their account with the sum of N165,712,864 (One Hundred and Sixty-Five Million Seven Hundred and Twelve Thousand, Eight Hundred and Sixty Four Naira) which translates to W35.30/litre as against the N37.50/litre contained in the guarantee dated 30th June, 2003; thus leaving an outstanding shortfall balance of N10,323,071.4.
xviii. That the Respondent (Defendant) bank then took the total of ten tonnes (or 3,656,136.8 litres) of the said product from MT Maria and delivered it to Enplus (another customer of the Respondent (Defendant) bank).
XIX. That the Respondent (Defendant) bank had promised to return the said product within 30 days therefrom, by which time Enplus would have gotten their own product (which was also being financed by the Respondent (Defendant) bank) from Addax.
xx. That on 31/03/04 (six months after the product swap), without any discussion or input from us, the Respondent (Defendant) bank unilaterally credited its account with the sum of N104,635,611.37 which merely represented payment for only 2,325,235.8 Iitres of the product taken at the prevailing price of N45/litre; leaving an outstanding balance of 1,330,901 litres unaccounted for.
The learned trial judge in his ruling on the Respondent’s application on the question of his jurisdiction to entertain and determine the Appellant’s claim reasoned thus:
“The facts of this case consist of 131 paragraphs in the Statement of Claim and involve a complex series of transactions between a number of shipping vessels, letters of credit, terms of carriage, demurrage, warehousing agents and agreements, importation of petroleum products, pricing of the products, bunkering, loading of vessels etc. These, I hold, are maritime issues that fall within the maritime jurisdiction of the Federal High Court.”
Upon my perusal of the appellant’s claim reproduced above, it is clear to me as crystal that the finding of the learned trial judge on the facts of this matter have not been faulted by the appellant. The said findings are indisputably borne out of the appellant’s writ of summons and statement of claim. For example, the appellant’s averments in the statement of claim clearly show that the shortage or loss of the alleged unaccounted 1,330,901 litres of the Automotive Gas Oil in question was due to the delay of the transfer of the 10,000 metric tonnes of the products from M/T Real Peace, the mother ship offshore Nigeria, to various vessels at different times.
The main grouse of the appellant against the decision of the learned trial judge, is that if his Lordship had considered only the appellant’s principal claims and reliefs, and not the ancillary claims, it would have become obvious to him that the claims did not evince facts showing that it is in respect of carriage of goods by sea. The learned appellant’s counsel at paragraph 4.0.7 of the appellant’s brief of argument, itemized what he termed as the appellant’s principal reliefs, to be:
(a) The sum N99,817,575 being the value of the outstanding balance of 1,330,901 litres given by the Defendant bank to Enplus @ N75/ litre.
(b) The sum N79,939,925 being the value of 1,065,863 litres @ N75/ Litre of the product declared missing and/or unaccounted for of the product delivered to Technokem’s tank.
(c) The sum N10,323,071 being the outstanding of the sum payable for the product taken by Jumlar on the guarantee by the Defendant bank dated 30/06/03.
The above reliefs are clearly reliefs (a), (b) and (c) of the appellant’s claims, whilst relief (d) of the claims is what the appellant’s learned counsel has now termed the appellant’s ancillary reliefs. The appellant’s claims and reliefs were not severed at the Court below. The said claims and reliefs were tied together at the Court below. It is in this Court and in the appellant’s brief of argument, that the surgical operation of severance, termed principal and ancillary reliefs, was ingeniously crafted by learned appellant’s counsel. However, it is glaring to me that reliefs (a), (b) & (c) are monetary claims which arose from the maritime/admiralty transactions in the matter. Therefore, the aforementioned reliefs are inextricably linked and tied to relief (d). Indeed relief (d) is squarely situated in admiralty. In effect, the appellant’s claims and reliefs are inseparable, as they all relate to the maritime/admiralty transactions in this matter, which had to do with the issuance of letters of credit for the importation of the Automative Gas Oil in the instant case, by the instrumentality of ships/vessels. It does not require any hard thinking to understand that ships/vessels have nothing to do with land, but navigable sea transportation.
I am therefore, amazingly amused when the appellant’s learned counsel contended to the effect that the appellant’s claims had nothing to do with carriage of goods by sea. It is an incomprehensible submission, I must say.
The learned appellant’s counsel, placed heavy reliance on the Supreme Court decision in Texaco Overseas Nig. Petroleum Co. Unlimited v. Pedmar Nig. Ltd (2002) 7 SC (pt. 2) 222, to the effect that the mere fact that the appellant’s claim made references to vessels, letter of credit, payment for certain port charges as well as payment to an insurance company in respect of the anticipated cargo, did not make the action an admiralty matter. I will return to the Texaco case later. What is a maritime or an admiralty matter?
The word “maritime”, was defined by the learned author of Black’s Law Dictionary, Eight Edition @ page 987, to simply mean:
“1. Connected with or situated near the sea. 2. Of or relating to sea navigation or commerce.”
So also, the word “admiralty”, defined by the same author of Black’s Law Dictionary, Eight Edition @ page 50, as a noun, means:
“1. A Court that exercises jurisdiction over all maritime contracts, torts, injuries, or offences. The Federal Courts are so called when exercising their admiralty jurisdiction, which is conferred on them by the U.S. Constitution…
2. The system of jurisprudence that has grown out of the practice of admiralty Courts; MARITIME LAW.
3. Narrowly, the rules governing contract, tort, and workers’ compensation claims arising out of commerce on or over navigable water.”
Instructively, by virtue of Section 251(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, which provides inter alia:
“251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred on it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matter –
(g) any admiralty jurisdiction, including shipping and navigation on the Rivers Niger or River Benue and their affluents and such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the Constitution and powers of the ports authorities for Federal ports) and carriage by sea;
the Federal High Court, was constitutionally empowered of its exclusivity to exercise admiralty jurisdiction in all maritime causes and matters, which reinforces its exclusive admiralty jurisdiction conferred on it by the Admiralty Jurisdiction Act, 1991 (AJA). The law has remained well settled to the effect that since superior Courts of record, are creatures of the Constitution and of statutes, it is the Constitution and the statutes which created them, that invest them with the jurisdiction to hear and determine causes and matters filed before them for adjudication. Arjay Ltd. v. Airline Support Ltd (2003) 7 NWLR (pt. 820) 577 @ 635; Gafar v. Government of Kwara State (2007) 12SC, 189 @ 216-217. For the purposes of the instant case, Sections 251(1) (g) of the 1999 Constitution, as amended and Section 7(1) (g) of the Federal High Court Act, are apt. And by virtue of Section 1 of AJA, the admiralty jurisdiction of the Federal High Court extends to and includes the determination of matters relating to:
a. Proprietary interest in a ship or aircraft;
b. Any proprietary or general maritime claim as specified in Section 2 of the Act;
c. Any other admiralty jurisdiction being exercised by any other Court in Nigeria before the commencement of the Act;
d. Any jurisdiction connected with any ship or aircraft which is vested in any other Court in Nigeria immediately before the commencement of the Act;
e. Limitation of liability by a ship owner or aircraft operator;
f. Limitation for oil pollution damage;
g. Shipping and navigation in inland waters;
h. Claims arising within Federal Ports or National Airports; i. Claims for loss or damage to goods occurring between the offloading of goods across space from a ship or aircraft and their delivery at the consignee’s premises;
j. Banking or Letter of Credit transaction involving importation or exportation of goods in a ship or aircraft to and from Nigeria;
k. Constitution and powers of all ports authorities, airport authorities and the National Maritime Authority (now the Nigerian Maritime Administration and Safety Agency — NIMASA);
l. Any criminal cause or matter arising out of or concerning any of the aforementioned matters.
I have earlier, in this judgment found that from my perusal of the averments in the appellant’s statement of claim, I am unable to disagree with the learned trial judge, in his decision to the effect that, the said claim borders on maritime causes and matters which cannot be determined by him, but by the Federal High Court.
Let me now return to the contention of Appellant’s learned counsel in respect the Texaco case, supra. For the ratio and decision in that case to avail the appellant, the facts of it and the instant case must be nearly the same. The learned respondent’s counsel responded at paragraphs 4.21-4.22 of the respondent’s brief of argument and distinguished that case from the instant case thus:
a) The Texaco case is strictosensu about unpaid moneys and interest for the charter of two ships MV Coastal Carrier and MV Brasil IV. It had nothing to do with banking or letter of credit transaction for the importation of goods into Nigeria in a ship; a monetary agreement and/or claim relating to carriage of goods by a ship; goods, materials or services supplied to a ship for its operation or maintenance.
b) Since the Texaco case did not have the state or status of cargo as its concern, there was no issue relating to loss of cargo or the worthiness of ships.
c) There was no issue of demurrage in the Texaco case and this is one of the claims in the instant matter.
d) In the Texaco case, Sections 1, 2 and 3 of AJA or any other provisions were not in issue, and hence, the Supreme Court did not adjudicate the matter in the light of the said provisions and neither was the said provisions interpreted.
e) The dictum of the Supreme Court relied upon by the Appellant, gleaned from the Texaco case, to wit; “the admiralty jurisdiction of Federal High Court cannot be invoked once the goods carried by the ship have been discharged in the harbour or delivered to the point of destination of the cargo.
In any event, for a claim in admiralty to arise, the cargo or goods must still be in the vessel” are in reference to charter contracts strictosensu. However the instant matter is about the conveyance of goods, what happened to the cargo, the incidences of transfer between ships, the purported demurrage incurred by parties, the condition and functionality of some of the ships and other issues that have been raised in previous paragraphs; that a case is only an authority for the ratios cum facts it decides and can only form a binding precedent for subsequent cases with similar facts and Courts of law have been admonished not to consider pronouncements made in earlier cases by even Justices of the Supreme Court in unnecessary isolation from the facts and circumstances of the particular case(s) at hand and apply them willy nilly to the case at hand. See the cases of ADEGOKE MOTORS LTD. V. ADESANYA (1989) 3 NWLR (PT.109) 250 @ 265 – 266 and 275; OKAFOR V. NNAIFE (1987) 4 NWLR (Pt. 64) 129. Texaco’s case was simply in respect of outstanding sums from charter of vessels which has no direct, proximate or remote bearing on and with the facts of this case. The phrase quoted by the respondent in paragraph 4.12 from Texaco’s case is clearly inapplicable to this case, since there was no dispute as to the goods carried in the course of the charter.
If the claim was as to the goods, the Court would have had the opportunity to consider Sections 1(1)(2) and 2(3) of the Admiralty Jurisdiction Act. Although the said phrase is of no relevance to the facts of this case, it is settled law that it is the ratio decidendi in a case that constitute binding judicial precedents. Appellant has not linked its case to the ratio in the Texaco v. Pedmar (supra).
I am afraid, the appellant’s learned counsel, failed to demonstrate that the facts in the Texaco case, which he heavily relied upon, are the same or nearly the same as the instant case. On the other hand, I am satisfied that the facts in the Texaco case, as distinguished by the respondent’s learned counsel, with whom, I agree, ex facie, shows that, that case has added no prosperity but poverty, to the appellant’s contention.
I have considered the appellant’s contention to the effect that Section 1(1) (h) of AJA is in conflict with Section 251(1) (d) of the 1999 Constitution, which provides thus:
251.-(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters.
“(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures.
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.”
On the other hand, Section 1(1) (h) of AJA, 1991, says:
“(1) The admiralty jurisdiction of the Federal High Court (in this Act referred to as” the Court) includes the following:
(h) Any banking or letter of credit transaction involving the importation or exportation of goods to and from Nigeria in a ship or aircraft, whether importation is carried out or not and notwithstanding that the transaction is between a bank and its customers.”
The law is well settled to the effect that a “proviso” in an enactment, qualifies and limits the essence of the particular section to which the proviso relates. The Supreme Court on the effect of a proviso to a section of an enactment had in Nigeria Deposit Insurance Corporation (Liquidator of Allied Bank of Nigeria Plc v. Okem (2004) 10 NWLR (pt. 880) 107; (2004) LPELR-1999 @ page 58 held that:
“…. the object of a proviso is normally to cut down or qualify or create exception to or relax in a defined sense the limitations imposed on powers conferred by a section of an enactment or document or to exclude some possible ground of interpretation of its extent, or modify the main part of a section of a statute to which it relates to restrain its absoluteness or generality.” … per Uwaifo, JSC.
Therefore, generally, a proviso to an enactment, limits the main provision in a preceding part of the enactment. Furthermore, a proviso in modifying the operation of an enactment, can instead of restricting its effect on the enactment, give it a wider operation. However, where the intendment of a proviso cannot be reasonably construed and where such construction will be at cross purposes with the main part of the enactment and lead to an absurdly, it would be more reasonable to construe the proviso, in order to make the main part of the enactment, self-fulfilling. In the instant case, having found that the appellant’s claim borders on maritime and admiralty jurisdiction and not merely a banker – customer relationship, I am of the considered opinion that with the constitutional mandate vide Section 251(1) (g) of the 1999 Constitution, as amended, given to the Federal High Court, to exercise exclusive jurisdiction in all maritime causes and matters, it would be absurd to construe the proviso to Section 251(1) (d) of the same Constitution, to the effect that the Court below, being the High Court of Lagos State, has equal or coordinate jurisdiction with the Federal High Court, in this matter and the absurdity becomes glaringly manifest against the backdrop of my finding earlier in this judgment that relief (d) of the appellant’s claim is squarely premised on admiralty, which the Court below cannot determine.
It cannot be and it is not good law that an action be severed such that a part of it is tried and determined in one Court, whilst the other part is heard and determined in another Court, as there cannot be two judgments in respect of one case. Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517.
Flowing from the above reasoning, I fail to see any conflict between Section 251(1) (d) of the 1999 Constitution and Section 1(1) (h) of the Admiralty Jurisdiction Act, 1991.
In sum, I resolve the sole issue in this appeal, against the appellant. Consequently, the appeal stands dismissed. The ruling rendered by A.O. Adefope – Okojie, J., (as he then was) in Suit NO: ID/1470/2005 on 22 June, 2011 at the Lagos State High Court of Justice, holden at Ikeja Division, is hereby affirmed.
Each side shall bear own cost of the appeal.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother TOM SHAIBU YAKUBU JCA afforded me the opportunity of reading in draft before today the lead Judgment just delivered and I agree with the reasoning and conclusion contained therein, adopt the Judgment as mine with nothing further to add.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the lead judgment just delivered by my learned brother, Tom Shaibu Yakubu JCA.
I whole heartedly agree with the analysis and reasoning of my Lord Tom Shaibu Yakubu, JCA. on the facts of the instant case on appeal and the law of the admiralty jurisdiction of the Federal High Court in maritime claims.
I agree that the appeal lacks merit and should be dismissed. I abide with the consequential order made that both parties should bear their respective costs even though the area of the law on which the appeal was predicated is a well worn path and clearly settled by extant judicial decisions on the admiralty jurisdiction of the Federal High Court in contrast with the State High Court on maritime matters or claims.
The appeal is also dismissed by me and the judgment of the High Court of Lagos State in suit No. ID/1470/2005 delivered on 22/6/2011 is hereby affirmed.
Appearances:
Babatunde Kehinde, with him, Temitope Ekundayo and Michael Akinnade For Appellant(s)
Bode Olanipekun, SAN., with him, Faith Adarighofua, Oshin Olushola and Yewande Badiru For Respondent(s)
