FIRST DEEPWATER DISCOVERY LTD & ANOR v. FAICECK PETROLEUM LTD
(2020)LCN/14303(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, June 02, 2020
CA/L/189/2016
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Tijjani Abubakar Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Between
- FIRST DEEPWATER DISCOVERY LIMITED 2. THE VESSEL M/T DEEPWATER APPELANT(S)
And
FAICECK PETROLEUM LIMITED RESPONDENT(S)
RATIO
THE YARDSTICK FOR THE CLASSIFICATION OF A GROUND OF APPEAL
Now, it is often a very thin line that separates a ground of law only from a ground of mixed law and fact. Happily, the Apex Court has laid down the marker on how to ascertain whether a ground of appeal is of law alone, of fact or mixed law and fact. In FIRST BANK OF NIGERIA PLC vs. T. S. A. INDUSTIRES LTD (2010) LPELR (1283) 1 at 55A-56D, Adekeye, JSC stated as follows:
“The important yardstick for the classification of a ground of appeal is not in form of the question it raises but for instance –
(a) Where the grounds of appeal shows that the Trial Court or Appellate Court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law.
(b) Where the ground suggests an invitation to the Court where an appeal is lodged to investigate the existence or otherwise of certain facts made by the Trial Court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best a ground of mixed law and fact.
(c) Where the question which the Court is bound to answer in accordance with a rule of law arises out of statutory provisions and interpretation of documents, it is a ground of law.
(d) Where the question is one that will require questioning the evaluation of facts by the Trial Court before application of the law, it is a ground of mixed law and fact.
(e) Where the ground of appeal questions the exercise of discretion by a Trial Court, it is undoubtedly not a ground of law but at best a ground of mixed law and facts because the manner in which a Court ought to exercise its discretion in a particular case is a question of fact depending on facts and circumstances of each case.
(f) Whether or not discretion is exercised judicially and judiciously or arbitrarily in any particular case is a question of mixed law and fact.
(g) A ground of appeal complaining of failure of the Court to discharge its duty of considering and pronouncing on the issues raised before it is a question of law.
(h) A ground of appeal which is a complaint of the misapplication of correctly stated principles of law to the facts of a case is a ground of law alone.”
Equally, in GENERAL ELECTRIC COMPANY vs. AKANDE (2010) LPELR (9356) 1 at 35, Rhodes-Vivour, JSC stated:
“In deciding whether a ground of appeal is one of law or fact or mixed law and fact the grounds must be examined to see whether it is on a misunderstanding by the Court of the law or a misapplication of the law to facts already established. So, where the complaint in the ground of appeal is one of misunderstanding by the Court of the law or misapplication of the law to the facts established then the ground of appeal is a ground of law. Where the ground of appeal disputes or questions the evaluation of facts by the Court before applying the law, it is a ground of mixed law and fact.”
See also UNION BANK vs. RAVIH ABDUL & CO. (2018) LPELR (46333) 1 at 27-30, NWADIKE vs. IBEKWE (1987) 4 NWLR (PT 67) 718 at 744-745, OGBECHIE vs. ONOCHIE (1986) 2 NWLR (PT 70) 370 and COKER vs. UBA (1997) LPELR (880) 1 at 10-16. PER OGAKWU, J.C.A.
DEFINITION OF A GROUND OF APPEAL
A ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and on the basis of which the decision should be set aside. Put differently, it is the reason why the decision is considered wrong by the aggrieved party. SeeIDIKA vs. ERISI (1988) 2 NWLR (PT. 78) 503 at 578, AZAATSE vs. ZEGEOR (1994) 5 NWLR (PT. 342) 76 at 83 and AKPAN vs. BOB (2010) 17 NWLR (PT. 1223) 421 at 464. The determining factor in ascertaining the nature or character of a ground of appeal is the real issue or complaint raised in the ground. In ascertaining the real issue or complaint, the ground of appeal as formulated and all the particulars thereto are to be read and construed together. See OBATOYINBO vs. OSHATOBA (1996) LPELR (2156) 1 at 33, CHIEF OF STAFF vs. IYEN (2005) 6 NWLR (PT. 922) 496, ODUKWE vs. ACHEBE (2008) 1 NWLR (PT. 1067) 40 at 53 and ABIA STATE INDEPENDENT ELECTORAL COMMISSION vs. ONYEABOR (2011) LPELR (3563) 1 at 31. PER OGAKWU, J.C.A.
THE DOCTINE OF NOVATION
Furthermore, in GROVER vs. INTERNATIONAL TEXTILE INDUSTRIES NIG LTD (1976) 11 SC at 19, the apex Court explained the doctrine of novation as follows: “the law is well settled that a later agreement by the parties to an original contract to extinguish the rights and obligations that the original contract has created is itself a binding contract, provided that the latter agreement is either made under seal or supported by consideration. Consideration raises no difficulty if the original contract sought to be extinguished is still executory. This is because each party by the later Agreement is deemed to have agreed to release his rights under the original contract in consideration of a similar release by the other. Such bilateral discharge may take the form of dissolution plus replacement. Thus, the parties may extinguish the original contract but substitute an entirely new agreement in its place.”
See also UNION BEVERAGES LTD vs. OWOLABI (1988) 1 NWLR (PT 68) 128, ORILOYE vs. LAGOS STATE GOVT (2014) LPELR (22248) 1 at 22-23, ACB LTD vs. AJUGWO (2011) LPELR (3637) 1 at 22-23, ONEGBEDAN vs. UNITY BANK PLC (2014) LPELR (22186) 1 at 23-24 and UNITY BANK PLC vs. OLATUNJI (2014) LPELR (24027) 1 at 45-46. PER OGAKWU, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
Jurisdiction is the fons et origo, the threshold of judicial power and judicialism. It is the bloodline and livewire of all proceedings in a Court or Tribunal. It is the spinal cord of a Court of law:A-G OYO STATE vs. NLC (2003) 8 NWLR (PT 821) 1 at 26. Where jurisdiction is lacking as in this case, the entire proceedings are a nullity, however well conducted as the want of jurisdiction is extrinsic to the adjudication. See ROSSEK vs. A. C. B. (1993) 8 NWLR (PT 312) 382 at 437 and 487, MADUKOLU vs. NKEMDILIM (2001) 46 WRN 1 at 13 and FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 35 and 56. Concomitantly, since the lower Court did not have jurisdiction to entertain the Respondent’s action founded on simple contract, it did not have the jurisdictional competence to make the ex parte orders against the Appellants. In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520:
“If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the Court to embark on hearing and determination of the suit, matter or claim … There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the Court and to the parties to do so.” PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Respondent herein instituted proceedings against the Appellants before the Federal High Court, Lagos Division in SUIT NO. FHC/L/CS/1741/2014: FAICECK PETROLEUM LIMITED vs. FIRST DEEPWATER DISCOVERY LIMITED & ANOR. It was an action on the undefended list, and the Respondent claimed the following reliefs:
“I. The sum of N180, 051,000 (One Hundred and Eighty Million and Fifty One Thousand Naira) as at 30th of May, 2013 being the outstanding balance of the value of the plaintiff’s products that was stored in the 1st Defendant’s Tank Farm, which the 2nd defendant moved out of the jurisdiction of this Court to be sold outside Offshore without the Plaintiff’s consent.
II. INTEREST on the said sum mentioned in (I) above at the rate of 21% per annum from the 1st of June, 2013 until judgment and thereafter at 10% per annum until the judgment sum is totally liquidated.”
The Respondent subsequently applied for and obtained certain ex parte orders against the Appellants, inter alia, in respect of the funds of the Appellants with the Debt Management
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Office. The Appellants by an application filed on 12th December, 2014 prayed the Lower Court to discharge/set aside the said ex parte orders which were made on 2nd December, 2014. The Respondent opposed the application and after a contested hearing, the Lower Court in its Ruling, delivered on 26th January, 2016 dismissed the application.
The Appellants were dissatisfied with the decision of the Lower Court and filed their original Notice of Appeal on 9th February, 2016. However, the extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 6th December, 2019, which was filed pursuant to the order of this Court made on 4th December, 2019. The scarified Ruling of the Lower Court is at pages 79-90 of the Records.
The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument which learned counsel adopted and relied upon at the hearing of the appeal. There is the Appellant’s Amended Brief of Argument filed on 9th December, 2019, the Respondent’s Brief of Argument filed on 4th March, 2020 and the Appellants’ Reply Brief on 6th March, 2020.
The Appellants
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distilled a twin issue for determination in the appeal, namely:
“1. ‘Whether the Honourable Lower Court was right to hold that the Respondent’s suit was an admiralty matter and as such the Federal High Court had jurisdiction under Section 251 of the Constitution of the Federal Republic of Nigeria 1999 to entertain the suit notwithstanding the fact that the action was predicated on a simple contract’ If No;
2. ‘Whether the 2nd Appellant was a necessary party to the suit before the Honourable Lower Court’.”
The Respondent on its part nominated a sole issue for determination as follows:
“Whether the Lower Court was right to hold that it had Jurisdiction to hear the Respondent’s suit filed before it on the 13th day of November, 2014, in the circumstance that the Respondent clearly stated that its action was not predicated on the enforcement of contract, but the acts/damages done to it by the Appellants.”
The Respondent incorporated a preliminary objection challenging the competence of the appeal in its brief. The preliminary objection being threshold in nature will be the starting point
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in the consideration and resolution of this appeal.
THE PRELIMINARY OBJECTION
The Respondent’s preliminary objection is predicated on the ground that the appeal is incompetent because the Appellants failed to obtain the leave of court before appealing on grounds of mixed law and facts. Relying on the provisions of Section 241 (1) and Section 243 of the 1999 Constitution as well as the cases of KHEREKHOLO vs. UDA (2011) 3 NWLR (PT 1234) 334-335 and GILBERT vs. ENDEAN (1878) 9 Ch. 259 at 268 and 269, the Respondent submitted that the Appellants’ appeal is against an interlocutory decision of the Lower Court and that since the grounds of appeal are of mixed law and facts, the filing of the same without leave of Court was a serious defect affecting the jurisdiction of the Court to entertain the appeal.
The Respondent proceeded to analyse the four grounds of appeal with its particulars as required by law vide MANSOUR vs. CARNCO FOOD (NIG) LTD (2014) LPELR-22443 (CA) and OPUIYO vs. OMONIWARI (2007) 16 NWLR (PT. 1060) 415 at 430 and asserted that the grounds of appeal were of mixed law and facts requiring the leave of Court. The appeal, it
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was maintained, was incompetent and ought to be struck out since the Court lacks jurisdiction to hear the appeal. The cases of ACCESS BANK vs. GENERAL TELEPHONE ELECTRONICS LTD (2015) LPELR-24921 (CA), IBRAHIM vs. ADAMAWA (1993) 4 NWLR (PT 286) at 15-16, INTEROCEAN OIL CORP NIG. UNLTD vs. FADEYI (2008) ALL FWLR (PT 403) 1381 at 1398-1399 and OSHATOBA vs. OLUJITAN (2000) 5 NWLR (PT 655) 159 were relied upon.
Replicando, the Appellants, in their Reply Brief, submit that the grounds of appeal are jurisdictional in nature. That ground one is founded on Section 251 (1) of 1999 Constitution dealing with the jurisdiction of the Federal High Court; ground two on issue of cause of action which is jurisdictional as absence of cause of action divests a Court of jurisdiction vide ORJI vs. UGOCHUKWU (2009) LPELR-4798 CA. On ground three, it was opined, that it is jurisdictional since it deals with the pronouncement of the Lower Court that the case was not one of simple contract. Ground 4 was also said to be jurisdictional in nature since it dealt with the holding of the Lower Court that the action was within its admiralty jurisdiction. It was asserted that the grounds
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of appeal being jurisdictional in nature, there was no need to seek leave to file the interlocutory appeal. The cases of ODOCK vs. THE STATE (2007) 7 NWLR (PT 1033) 369 at 389 and KRAUS THOMPSON ORG LTD vs. UNICAL (2004) 9 NWLR (PT 879) 631 at 658.
The Appellants conclusively submitted that the issue of jurisdiction is an issue of law and cannot be said to be of mixed law and fact. The reference to facts in the particulars of error in a ground of appeal, it was maintained did not make the ground a ground of mixed law and facts. The cases of AGBULE vs. W. R. & P. CO. LTD (2013) 6 NWLR (PT. 1350) 318, OGBECHIE vs. ONOCHIE (1986) 2 NWLR (PT. 23) 484, ADILI vs. THE STATE (1989) 2 NWLR (PT. 103) 305, NWADIKE vs. IBEKWE (1987) 4 NWLR (PT. 67) 718 and NUC vs. ALLI (2014) 3 NWLR (PT 1393) 33 at 76 were cited in support.
RESOLUTION OF THE PRELIMINARY OBJECTION
The crux of this preliminary objection is that the grounds of appeal are not grounds of law alone, but grounds of mixed law and facts; therefore leave of Court was necessary to appeal on the said grounds and that having failed to obtain leave of Court, the appeal was incompetent and the Court has
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no jurisdiction to entertain the same.
There is no confutation that the decision of the Lower Court appealed against is an interlocutory decision. Section 241 (1) (b) and (d) of the 1999 Constitution (as amended) provides as follows:
“241 – (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person.”
By Section 242 of the 1999 Constitution in circumstances where an appeal is not as of right under Section 241, the appeal shall be with leave of either the High Court or the Court of Appeal. The vital question that needs to be considered is whether the excoriated grounds of appeal are grounds of law alone in which case leave is not necessary or whether they are grounds of mixed law and fact as contended by the Respondent in
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which case leave of either the Lower Court or this Court will be required in order for the appeal to be competent.
Now, it is often a very thin line that separates a ground of law only from a ground of mixed law and fact. Happily, the Apex Court has laid down the marker on how to ascertain whether a ground of appeal is of law alone, of fact or mixed law and fact. In FIRST BANK OF NIGERIA PLC vs. T. S. A. INDUSTIRES LTD (2010) LPELR (1283) 1 at 55A-56D, Adekeye, JSC stated as follows:
“The important yardstick for the classification of a ground of appeal is not in form of the question it raises but for instance –
(a) Where the grounds of appeal shows that the Trial Court or Appellate Court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law.
(b) Where the ground suggests an invitation to the Court where an appeal is lodged to investigate the existence or otherwise of certain facts made by the Trial Court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best a ground of mixed law and fact.
(c) Where the question which the Court is
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bound to answer in accordance with a rule of law arises out of statutory provisions and interpretation of documents, it is a ground of law.
(d) Where the question is one that will require questioning the evaluation of facts by the Trial Court before application of the law, it is a ground of mixed law and fact.
(e) Where the ground of appeal questions the exercise of discretion by a Trial Court, it is undoubtedly not a ground of law but at best a ground of mixed law and facts because the manner in which a Court ought to exercise its discretion in a particular case is a question of fact depending on facts and circumstances of each case.
(f) Whether or not discretion is exercised judicially and judiciously or arbitrarily in any particular case is a question of mixed law and fact.
(g) A ground of appeal complaining of failure of the Court to discharge its duty of considering and pronouncing on the issues raised before it is a question of law.
(h) A ground of appeal which is a complaint of the misapplication of correctly stated principles of law to the facts of a case is a ground of law alone.”
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Equally, in GENERAL ELECTRIC COMPANY vs. AKANDE (2010) LPELR (9356) 1 at 35, Rhodes-Vivour, JSC stated:
“In deciding whether a ground of appeal is one of law or fact or mixed law and fact the grounds must be examined to see whether it is on a misunderstanding by the Court of the law or a misapplication of the law to facts already established. So, where the complaint in the ground of appeal is one of misunderstanding by the Court of the law or misapplication of the law to the facts established then the ground of appeal is a ground of law. Where the ground of appeal disputes or questions the evaluation of facts by the Court before applying the law, it is a ground of mixed law and fact.”
See also UNION BANK vs. RAVIH ABDUL & CO. (2018) LPELR (46333) 1 at 27-30, NWADIKE vs. IBEKWE (1987) 4 NWLR (PT 67) 718 at 744-745, OGBECHIE vs. ONOCHIE (1986) 2 NWLR (PT 70) 370 and COKER vs. UBA (1997) LPELR (880) 1 at 10-16.
Guided by the pronouncement of the Apex Court on the classification of grounds of appeal and how to pitchfork a ground of appeal into the categories of classification, let us now closely examine the grounds of appeal to see if they are such on the basis
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of which the Appellants could appeal as of right or with leave. A ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and on the basis of which the decision should be set aside. Put differently, it is the reason why the decision is considered wrong by the aggrieved party. SeeIDIKA vs. ERISI (1988) 2 NWLR (PT. 78) 503 at 578, AZAATSE vs. ZEGEOR (1994) 5 NWLR (PT. 342) 76 at 83 and AKPAN vs. BOB (2010) 17 NWLR (PT. 1223) 421 at 464. The determining factor in ascertaining the nature or character of a ground of appeal is the real issue or complaint raised in the ground. In ascertaining the real issue or complaint, the ground of appeal as formulated and all the particulars thereto are to be read and construed together. See OBATOYINBO vs. OSHATOBA (1996) LPELR (2156) 1 at 33, CHIEF OF STAFF vs. IYEN (2005) 6 NWLR (PT. 922) 496, ODUKWE vs. ACHEBE (2008) 1 NWLR (PT. 1067) 40 at 53 and ABIA STATE INDEPENDENT ELECTORAL COMMISSION vs. ONYEABOR (2011) LPELR (3563) 1 at 31.
I will now set out the four grounds of appeal with their particulars verbatim ac literatim:
“Ground One
The Learned Trial Judge erred in
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law when he held that by virtue of Section 251 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Federal High Court had the requisite jurisdiction to entertain the Respondent’s action notwithstanding the nature of the Respondent’s claim before it.
PARTICULARS
a. The law is trite that the nature of the claim or relief sought by a Plaintiff is what denotes the jurisdiction of the Court. See: Onuorah vs. KPRC (2005) 6 NWLR (pt. 921) p. 393; A.G Kwara State VS. Olawale (1993) 1 NWLR (pt. 272) p. 645 at 663; Mustapha vs. Governor of Lagos State (1987) 2 NWLR (pt. 58) 539; Tukur vs. Government of Gongola State (1989) 4 NLWR (pt. 117) p. 592 at 599 and Western Steel Works vs. Iron & Steel Workers (No. 2) (1987) 1 NWLR (pt. 49) p. 284.
b. The Plaintiff’s claim before the Honourable Lower Court bothered [sic] on and related to the breach of a contract for supply of dual purpose kerosene and recovery of the sum of N180,051,000 (One Hundred and Eighty Million and Fifty-One Thousand Naira Only) purportedly advanced to the 1st Appellant.
c. The crux of the Respondent’s claim was founded on a
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simple contract which ought to be determined in the High Court of a state.
d. The mere inclusion of the 2nd Appellant as a party to the action was not sufficient to vest the Honourable Lower Court with the requisite jurisdiction to proceed with the matter.
e. The decision of the Lower Court does violence to the pronouncement of Mohammed (JSC) in the case of Cheveron [sic] (Nig.) VS. L.D (Nig.) Ltd (2007) 16 NWLR (Pt. 1059) Pg. 1 to the effect that:
“…the Plaintiff’s claim was an action in admiralty and that therefore, a State High Court has no jurisdiction to entertain same. The Defendant would rather have the case heard by the Federal High Court. I reproduced above a substantial part of the averments in the Plaintiff’s statement of claim. These show that in its true essence, the claim was for a breach of contract. It has nothing to do with the admiralty jurisdiction of the Federal High Court.”
f. The Honourable Lower Court with respect stood the law on its head.
Ground Two
The Learned Trial Judge erred in law when he held that the Respondent established a reasonable cause of action against the 2nd
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Appellant, and as such the 2nd Appellant is a necessary party to the suit.
PARTICULARS
a. The 2nd Appellant was never a party to the contract which the Respondent claims the 1st Appellant purportedly breached.
b. The ownership, possession or services rendered by the 2nd Appellant, and or damages caused by the 2nd Appellant is not the subject matter of the Plaintiff’s case.
c. The 2nd Appellant not being a party to the contract is therefore not a necessary party to the suit.
d. The 2nd Appellant was only referred to in paragraphs 6 and 20 of the 36 paragraph originating process.
e. The suit before the Honourable Lower Court can be effectively completely determined in the absence of the 2nd Appellant. See CHIEF [sic] REX KOLA OLAWOYE v. ENGINEER RAPHEAL JIMOH & ORS. (2013) LPELR-20344(SC) Oyedeji Akanbi (Mogaji) v. Fabunmi & Anor. In Re: Yesufu Faleki (Mogaji) (1986) 2 SC. 431 at 449; (1986) 1 NWLR (Pt. 19) 759; Ige & Ors. v. Farinde & Ors. (1994) NWLR (Pt. 354) 42, (1994) 7-8 SCNJ 284.
Ground Three
The Learned Trial Judge erred in law when he held that the Respondent’s Claim does not originate
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from the contract executed by the parties dated 15th April, 2013.
PARTICULARS
Particulars of Ground One is hereby repeated
Ground Four
The Learned Trial Judge erred in law when he held that the action of the Respondent is more of an action in rem within the definition of the admiralty jurisdiction of this court.
PARTICULARS
a. For an admiralty action to be retained as an action in rem, it must first and foremost be established that the claim falls within the admiralty jurisdiction and under maritime claims of Section 2 of The Admiralty Jurisdiction Act.
b. In of [sic] P.M. Ltd vs. The ‘M.V. Dancing Sister’ (2012) 4 NWLR (Pt. 1289 pg. 169 @ 206 where Ngwuta JSC put it so succulently to the effect that:
‘The rule is that the admiralty jurisdiction of the Federal High Court cannot be invoked once the goods on board a ship have been discharged on the harbour or delivered …For the admiralty jurisdiction to be properly invoked, the goods or cargo must remain in the vessel.’
c. The Respondent’s claim from the writ of summons is for recovery of the sum of N180, 051,000.00 (One Hundred and
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Eighty Million and Fifty One Thousand Naira Only).
d. By the Respondent’s pleadings before the Court, the Respondent had averred that the product had been lifted outside Lagos and sold.
e. This pleading took the Respondent’s case outside the in rem jurisdiction of the Federal High Court.
f. The mere fact that the 2nd Appellant was a party before the Honourable Lower Court does not give the Respondent’s claim a coloration or character of an admiralty action. See: Appeal No: CA/L/485/16; Nun River Ventures Limited& Anor VS. ABBNG Limited & Anor (Unreported) delivered on the 24th November, 2017.”
Doubtless, the particulars of the grounds of appeal have made reference to facts. But the grounds of appeal do not dispute the facts or question the evaluation of the facts by the Lower Court before the Lower Court applied the law. The complaint in the grounds of appeal, in my deferential view, revolve around the misunderstanding of the law or misapplication of the law by the Lower Court to the accepted and unchallenged facts, which facts disclose that the basis of the relationship between the parties was a simple
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contract, that the said uncontested facts on record did not disclose a cause of action against the 2nd Appellant; that the accepted facts depict that it was the contract executed between the parties that formed the fulcrum of the action and finally that the facts do not bear out an admiralty or maritime claim. It is the application of the law by the Lower Court to these accepted facts that form the bastion of the grounds of appeal. Without a doubt the grounds of appeal are grounds of law. See FIRST BANK OF NIG PLC vs. T. S. A. INDUSTRIES LTD (supra) and GENERAL ELETRIC COMPANY vs. AKANDE (supra).
In NEWSWATCH COMMUNICATIONS LTD vs. ATTA (2006) LPELR (1986) 1 at 19-20, Tobi, JSC stated:
“Putting the position nakedly, a question of mixed law and fact will prevail where the facts struggle with the law for first place in the ground of appeal, not because some infinitesimal facts edify the law. Let Courts of Law not over blow this aspect of our adjectival law which is really fluid and therefore difficult to apply in practice. A little grain of fact in the law should not tilt the position to straight mixed law and fact. That will leave our adjectival
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law in this area highly polarized and cannot be policed or handled effectively.”
I kowtow. Any infinitesimal fact innate in the grounds of appeal and which does not question or challenge the facts cannot transmogrify the ground of appeal from a ground of law to a ground of mixed law and facts. The complaint remains one of misapplication or misconception of the law by the lower Court. They are grounds of law. As stated by Adekeye, JSC in GENERAL ELECTRIC COMPANY vs. AKANDE (supra) at 32:
“Any ground of appeal alleging misunderstanding of the Lower Court of the law or misapplication of the law to the facts already proved, undisputed or admitted, or a misdirection, is a ground of law. Similarly, where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, and the Appeal Court will assume that there has been a misconception of the law – it is a ground of law.”
The challenge to the jurisdiction of the Lower Court in the grounds of appeal are grounds of law since an issue of jurisdiction is a question of law: AGBULE vs. W. R. & P. Co. LTD (supra). The grounds of appeal being grounds
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of law alone, the Appellants were not obligated by law to obtain leave to appeal on the said grounds. They rightly appealed as of right pursuant to the statutory right of appeal conferred by Section 241 (1) (b) of the 1999 Constitution. Concomitantly, the appeal is competent and the preliminary objection is devoid of merit. The preliminary objection is therefore dismissed. I now turn to the merits of the appeal.
THE APPEAL
I have already set out the issues distilled by the parties in their respective briefs of argument. The said issues are not dissimilar. Accordingly, I will presently review the submissions of learned counsel on the issues as couched by them and then resolve the appeal en bloc.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that the jurisdiction of a Court to entertain a matter is ascertained by recourse to the originating process showing the reliefs claimed. The cases of A-G ANAMBRA STATE vs. A-G FEDERATION (2007) ALL FWLR (PT 379) 1218 at 1273, ABIA STATE INEC vs. KANU (2013) LPELR-20519 (SC), ONUORAH vs. KPRC (2005) 6 NWLR (PT 921) 393, A-G KWARA STATE vs. OLAWALE (1993) 1 NWLR (PT 272) 645 at 663,
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TUKUR vs. GOVT OF GONGOLA STATE (1989) 4 NWLR (PT 117) 592 at 599 among other cases were referred to.
The reliefs claimed and the facts deposed to in the affidavit in support of the writ of summons were referred to and it was asserted that it was clear that the action was founded on simple contract for alleged breach of contract for supply of dual purpose kerosene (DPK). The Lower Court, it was contended, was wrong in holding that it was an action in rem within the admiralty jurisdiction of the Court. The subject matter of the suit, the enforcement of a simple contract, it was posited, was not within the jurisdiction of the Lower Court vide ONUORAH vs. KRPC LTD (supra) at 405, SPDC vs. SIRPI-ALUSTEEL CONSTRUCTION LTD (2007) 1 NWLR (PT. 1067) 128 at 152, CHEVRON (NIG) vs. L. D. NIG LTD (2007) 16 NWLR (PT. 1059) 168, TEXACO OVERSEAS (NIG) UNLTD vs. PEDMAR (NIG) LTD (2002) 13 NWLR (PT 785) 526 at 543 among many other cases.
It was argued that the Respondent cloned the action as an admiralty action by joining the 2nd Appellant as a party when the claim does not pertain to the ownership or possession of the 2nd Appellant or services rendered to the 2nd
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Appellant or damages done by the 2nd Appellant as required by Section 2 of the Admiralty Jurisdiction Act. It was opined that the Respondent’s deposition that the 2nd Appellant was used to lift the Respondent’s petroleum products out of Lagos does not make it an admiralty action. The cases of APPEAL NO. CA/L/485/2016: NUN RIVER VENTURES LTD vs. ABBNG LTD (unreported) delivered on 24th November, 2017, C. S. INC. vs. M/T “CINDY GAIA” (2007) 4 NWLR (PT 1024) 222 at 244, BRAWAL SHIPPING (NIG) LTD vs. APHRODITE (NIG) LTD (2004) 9 NWLR (PT 879) 462 at 478, P. M. LTD vs. THE “M. V. DANCING SISTERS” (2012) 4 NWLR (PT. 1289) 169 at 206 among other cases were called in aid. The action, it was maintained, was not an admiralty matter because, on the admission of the Respondent, the products had been discharged from the vessel and sold. Furthermore, that no claim was made against the 2nd Appellant to warrant her being a necessary party to the action as there is no nexus between the Respondent and the 2nd Appellant and that the 2nd Appellant is not privy to the contract that was allegedly breached. The action, it was opined, could be
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successfully adjudicated without the 2nd Appellant being made a party since there was no need for it to be bound by the outcome of the proceedings. The cases of OLAWOYE vs. JIMOH (2013) LPELR-20344 (SC), GREEN vs. GREEN (1987) 7 SCNJ 269, PEENOK INVESTMENT LTD vs. HOTEL PRESIDENTIAL LTD (1982) 12 SC (Reprint) 1 at 11, UKU vs. OKUMAGBA (1974) 3 SC (Reprint) 24 among other host of authorities were called in aid. It was conclusively submitted that no reasonable cause of action is disclosed against the 2nd Appellant.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent, referring to Section 1 (2) of the Admiralty Jurisdiction Act, submits that the Federal High Court has a very wide range in its admiralty jurisdiction and that in determination of the jurisdiction, the origin of the cause of action in the statement of claim is looked at. The Respondent’s case it was stated is hinged on its products stored in the 1st Appellant’s tank farm which the 1st Appellant caused and used the 2nd Appellant to lift and move away by sea and sell without the consent and authority of the Respondent. Section 2 (3) of the Admiralty Jurisdiction Act and
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the case of TOUTON S. A. vs. G. C. D. N. Z. SPA (2011) 4 NWLR (PT. 1236) 20 were referred to. The Respondent asserted that its claim did not originate from the contract it executed with the 1st Appellant as the contract only came after the Appellants had done damage to the Respondent, which gave rise to the action before the lower Court.
It is the further contention of the Respondent that where a vessel is the instrument of a wrongful act, the admiralty jurisdiction of the Lower Court can be invoked vide RHEIN MASS UND SEE vs. RIVWAY LINES LTD (1998) 5 NWLR (PT 549) 265 and MAERSK NIGERIA LTD vs. UMA INVESTMENT COMPANY LTD (2013) LPELR – 212447 (CA).
The Respondent further argues that the Appellants’ application to set aside the ex parte order, which necessitated this appeal was an abuse of process and amounted to forum shopping because the same prayers sought in the application were the subject of the appeal filed by the Appellants against the ex parte order. The cases of SALVADOR vs. INEC (2012) 7 NWLR (PT 1300) 47 at 449-450 [sic] and R-BENKAY NIG LTD vs. CADBURY NIG LTD (2012) LPELR-7820 (SC) were relied upon.
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APPELLANTS’ REPLY ON LAW
In the Reply Brief, the Appellants maintain that the Respondent’s claim was merely for the recovery of a sum of money and nothing more and that it was immaterial if the monies sought to be recovered was in respect of petroleum products; and that the Lower Court did not have jurisdiction. The provisions of Section 2 (3) of the Admiralty Jurisdiction Act was said to be inapplicable since by the ejusdem generis rule of interpretation the damage envisaged under the said provision must be in relation to a contract between two or more vessels and nothing more. The cases ofBUHARI vs. YUSUF (2003) 14 NWLR (PT 841) 446, NCC vs. MTN (NIG) COMM. LTD (2008) 7 NWLR (PT 1086) 229 and FRN vs. IFEGWU (2003) 15 NWLR (PT 842) 113 were called in aid.
On the contention that their application to set aside which spawned this appeal is an abuse of process, it was submitted that the only prayer in the said application which resonates with the appeal against the ex parte order is prayer 1 only and that prayers 2 and 3 do not appear in the Notice of Appeal. It was maintained that for there to be an abuse of process the same reliefs would have to be sought
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against the same party. The cases of UKACHUKWU vs. PDP (2014) 4 NWLR (PT 1396) 65 and A-G LAGOS vs. A-G FED (2014) 9 NWLR (PT. 1412) 217 were cited in support. It was conclusively submitted that none of the grounds of the instant appeal challenged the finding of the Lower Court in respect of prayer 1 of the application and that the Respondent’s argument in that regard did not arise from the grounds of appeal, more so, as the Respondent did not file any Respondent’s Notice. The cases of OKOROAFOR vs. UDENSI (2014) 15 NWLR (PT 1431) 487, IFEGWU vs. UBN PLC (2011) 16 NWLR (PT 1274) 555 and ONUGHA vs. EZEIGWE (2011) 13 NWLR (PT 1263) 184 were relied upon.
RESOLUTION
The Respondent has argued that the Appellants’ application for the ex parte order of the Lower Court to be set aside could not have been granted in any event because the application is an abuse of process since the Appellants had already appealed against the ex parte order of the Lower Court. The Appellant in replication contended that the reliefs sought on the application were not the same as those sought in its Notice of Appeal against the ex parte orders and that since the
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reliefs were not the same the application was not an abuse of process. The Lower Court in its Ruling at page 89 of the Records stated as follows:
“I will not be able to deal with the 1st prayer of the Defendants/Applicants before the Court, which is asking me to set aside the order made ex-parte by this Court inview of the Appeal of the defendants/Applicants on the same.
Whatever position I might take on the said order cannot and will not be of any effect when the Court of Appeal decides on the same. I will only advice the Defendants/Applicants to file additional grounds before the Court of Appeal to assist the decision of that Court when the case comes up for hearing and determination.”
The above periscope from the Ruling of the Lower Court is translucent that the Lower Court declined to delve into the relief sought on the application which it held was subject of the Notice of Appeal filed against the grant of the ex parte order. So, it declined to pronounce on that aspect of the relief sought on the application and proceeded to pronounce on the other reliefs on the application. The finding of the Lower Court in this regard seems
26
clear to me that the application was not an abuse of process since the reliefs claimed were not the same. The Respondent has not cross appealed against the finding of the Lower Court in this regard. It is settled law that a finding of fact not appealed against stands admitted and undisputed and therefore its correctness cannot be questioned. See COMMERCE ASSURANCE LTD vs. ALLI (1992) 3 NWLR (PT 232) 710, YESUFU vs. KUPPER INTERNATIONAL (1996) 5 NWLR (PT 446) 17, P. N. UDOH TRADING CO. LTD vs. ABERE (2001) 11 NWLR (PT 723) 114 at 146, OLUKOGA vs. FATUNDE (1996) LPELR (2623) 1 at 8 and FBN PLC vs. OZOKWERE (2013) LPELR (21897) 1 at 20.
Furthermore, there is no complaint in the grounds of appeal against any decision of the Lower Court that the application to set aside the ex parte order is an abuse of process vel non. It is trite law that arguments or submissions in an appeal are not made at large or at the whims of learned counsel. They are not in nubibus; the arguments canvassed are predicated on the issues distilled from the grounds of appeal and specifically submitted for determination by the Court. There are no complaints in the grounds of appeal as to
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whether the application to set aside is an abuse of process and the Respondent neither cross appealed nor filed a Respondent’s Notice. See MADUMERE vs. OKAFOR (1996) 4 NWLR (PT 445) 637, DIMASA PROPERTY LTD vs. YUSUF (2009) LPELR (8144) 1 at 35-36, HON. MINISTER, FCT vs. MONONIA HOTEL NIGERIA LTD (2010) LPELR (4257) 1 at 18-20 and F. G. ONYENWE MOTORS LTD vs. FBN (MERCHANT BANKERS) LTD (2013) LPELR (21878) 1 at 18-19. In the circumstances, the Respondent cannot be heard to contend that the Appellants’ application to set aside is an abuse of process. It does not arise from the grounds of appeal, there is no appeal against the finding of the Lower Court that it would not consider prayer 1 of the application and the Respondent neither cross appealed nor filed a Respondent’s Notice. Accordingly, the Respondent’s submission in that regard is otiose and consequently discountenanced.
Now, the disceptation in this matter is on the perennial contest on the jurisdiction of the Federal High Court vis-a-vis the State High Courts. It is rudimentary law that the jurisdiction of a Court to entertain a matter is determined by the claim endorsed on
28
the writ of summons. See IZENKWE vs. NNADOZIE (1953) 14 WACA 361 at 363, ADEYEMI vs. OPEYORI (1976) 9-10 SC 31, TUKUR vs. GOVT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 and JAMES vs. INEC (2015) ALL FWLR (PT 787) 652 at 704. In ONUORAH vs. KRPC LTD (2005) LPLR (2707) 1 at 15, Tobi, JSC stated:
“The law is elementary that in the determination of whether a Court has jurisdiction in a matter or not, the Court will examine or consider the claims or reliefs. This is because only the claims or reliefs donate jurisdiction to the Court.”
So, it is to the reliefs claimed by the Respondent that we turn to in order to ascertain if the said reliefs donate jurisdiction to the Lower Court as contended by the Respondent. For ease of reference, I will reproduce the reliefs again. They read:
“I. The sum of N180, 051,000 (One Hundred and Eighty Million and Fifty One Thousand Naira) as at 30th of May, 2013 being the outstanding balance of the value of the plaintiff’s products that was stored in the 1st Defendant’s Tank Farm, which the 2nd defendant moved out of the jurisdiction of this Court to be sold outside Offshore without the
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Plaintiff’s consent.
II. INTEREST on the said sum mentioned in (I) above at the rate of 21% per annum from the 1st of June, 2013 until judgment and thereafter at 10% per annum until the judgment sum is totally liquidated.”
Let me iterate that the Respondent’s action was commenced on the undefended list so it is a liquidated money demand. The salient facts in support of the liquidated money demand as deposed to in paragraphs 9-20, 22, 23, 31-35 of the affidavit in support of the writ of summons are as follows:
“9. That the Plaintiff and the defendants engaged in the transaction involving storage of Premium Motor Spirit (PMS) in the 1st Defendant’s tank farm and the distribution of same thereof. Out of the stored products, 2.682Million Litres of the product was not delivered to the Plaintiff, after payment was made to the 1st defendant by the Plaintiff.
10. That further to the preceding paragraph, the Plaintiff demanded for the remaining 2.682Million Litres from the defendants and it became clear that the products were no longer in the Tank Farm.
- That after several entreaties from the defendants to
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the plaintiff and in a bid to amicably settle the matter, the defendants undertook to replace the 2.682Million Litres of PMS with a supply of 2.682Million Litres of Dual-Purpose Kerosene (DPK) and same was accepted by the Plaintiff. A contract agreement dated the 15th day of April, 2013 detailing the Terms and Conditions for the supply of 2.682Million Litres of DPK were executed by the parties. The said Contract agreement is attached and marked Exhibit A.
12. That parties further agreed that the monetary value of the 2.682 Million Litres of DPK outstanding and yet to be delivered to the Plaintiff at N89. (Eighty-Nine Naira) per litre and other associated costs of the transaction shall be N300, 051,000 (Three Hundred Million, Fifty-One Thousand Naira).
13. That pursuant to the Contract agreement that the 1st defendant shall immediately deliver 5 (five) bank drafts in favour of the Plaintiff for the sum of N50, 000,000 (Fifty Million Naira) each in addition to One Million Litres of DPK to the Plaintiff from the 1st defendant’s April 2013 cargo (estimated at N98 litre resulting in N98, 000,000) leaving a balance of N152, 051,000 (one Hundred and
31
Fifty Two Million Fifty One Thousand Naira only).
14. That the agreement further stipulates that an additional N50 Million and One Million litres of Dual-Purpose Kerosene (DPK) shall be delivered by the 1st Defendant to the Plaintiff in May, 2013 at the prevailing market price.
15. That the Defendants covenanted that the delivery of the outstanding quantity of Dual-Purpose Kerosene (DPK) due to the Plaintiff shall be hitch free and concluded within the acceptable price in the downstream sector of the industry.
16. That the Plaintiff and the Defendants accepted the terms and conditions of the contract agreement and the said agreement was duly executed by them.
17. That the 1st Defendant raised Five (5) bank drafts to the tune of N50, 000,000 (Fifty Million Naira) in April 2013 but failed to supply the Dual-Purpose Kerosene (DPK) as stipulated in the Contract Agreement which the Plaintiff had paid for.
18. That the 1st Defendant after much demand only supplied N75, 000,000 (Seventy-Five Million Naira) of Dual Purpose Kerosene (DPK) in May, 2013 contrary to the intention of parties.
19. That with the repayment of N50,000,000 (Fifty
32
Million Naira) and supply of Dual Purpose Kerosene (DPK) worth N75 Million the entire sum paid by the Defendants stands at N125, 000,000 (One Hundred and Twenty Five Thousand Naira only) as at May, 2013 leaving an outstanding balance of N180, 051,000 (One Hundred and Eighty Million and Fifty One Thousand Naira).
20. Upon investigation, the Plaintiff gathered that the 1st Defendant engaged/used the 2nd Defendant to lift the products belonging to the Plaintiff and sold them outside the shores of Lagos without the consent of the Plaintiff.”
22. That the outstanding balance of N180, 051,000 (One Hundred and Eighty Million and Fifty-One Thousand Naira) due to the Plaintiff by the Defendants has remained unpaid till date, despite repeated demands by the Plaintiff.
23. That notwithstanding the acceptance and execution of the Contract Agreement by the Defendants to honour the terms contained in the said agreement, the Defendants refused to liquidate their indebtedness as at when due.
31. The Plaintiff avers that it was constrained to instruct its solicitors to initiate proceeding in order to recover the defendants’ outstanding
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indebtedness in the sum of N 180,051,000 (One Hundred and Eighty Million and Fifty One Thousand Naira) as at 30th May, 2013 owed by the defendants in order to recover its outstanding sum, the Plaintiff has incurred huge expenses.
32. That the defendants have defence to this action.
33. That as the defendants have no defence to this action, they will not be prejudiced by the grant of this application.
34. That I pray the Court to grant the Plaintiff’s reliefs as contained in the Writ of Summons.
35. That it will be in the interest of justice if judgment is entered in favour of the Plaintiff.”
(See pages 4-6 and 9 of the Records)
It is effulgent from the facts deposed that the Respondent’s action is premised on the contract between the parties, Exhibit A to the affidavit, which contract it deposed in paragraphs 22 and 23 reproduced above, that the Appellants failed to honour the terms thereof, in consequence of which they were indebted to the Respondent to the tune of the amount claimed on the writ. The Respondent has however urged the Court to look into the origin of the cause of action and in an attempt to
34
distance the action from the contract, Exhibit A to the supporting affidavit, submitted as follows in paragraph 5. 26 of the Respondent’s Brief:
“It is our view that the Appellants need to pay more attention to the fact which we also stated at the Court below that the Respondent’s claim at the Federal High Court did not originate from the contract executed by the parties’ i.e. the Agreement dated 15th April, 2013. The agreement only came after the Appellants have done damage to the Respondent, giving rise to the action before the Court below.”
The Respondent doubled down on this contention when it summed up its submissions as follows in paragraph 5.40 b & c of the Respondent’s Brief thus:
“b. The Respondent’s before [sic] the Court below is not predicated on any contract between the parties but the wrong done to the Respondent by the Appellants.
c. The contract dated 15th April, 2013 was just to prove the admission of the Appellants of the wrong that had been dine [sic] to the Respondent.”
The Respondent’s argument as I understand is that its cause of action is not
35
predicated on the contract but on the wrong done to it before the contract was executed. This alleged wrong can only be as deposed to in paragraphs 9 and 10 of the affidavit in support of the writ which I already reproduced, id est, that the Premium Motor Spirit (PMS) stored in the 1st Appellant’s Tank Farm was not delivered to the Respondent. Without a doubt, this can donate a cause of action to the Respondent; but there is in law, the principle of novation of a contract. In NNPC vs. CLIFCO NIG LTD (2011) LPELR (2022) 1 at 37-38, Fabiyi, JSC, relying on the Black’s Law Dictionary, Sixth Edition at page 1064 stated thus:
“Novation is the substitution of a new contract for an existing one between the same or different parties. It is done by mutual agreement. It is never presumed. The requisites for novation are a previous valid obligation, an agreement of all the parties to a new contract, the extinguishment of the old obligation and the validity of the new one …”
Furthermore, in GROVER vs. INTERNATIONAL TEXTILE INDUSTRIES NIG LTD (1976) 11 SC at 19, the apex Court explained the doctrine of novation as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
36
“the law is well settled that a later agreement by the parties to an original contract to extinguish the rights and obligations that the original contract has created is itself a binding contract, provided that the latter agreement is either made under seal or supported by consideration. Consideration raises no difficulty if the original contract sought to be extinguished is still executory. This is because each party by the later Agreement is deemed to have agreed to release his rights under the original contract in consideration of a similar release by the other. Such bilateral discharge may take the form of dissolution plus replacement. Thus, the parties may extinguish the original contract but substitute an entirely new agreement in its place.”
See also UNION BEVERAGES LTD vs. OWOLABI (1988) 1 NWLR (PT 68) 128, ORILOYE vs. LAGOS STATE GOVT (2014) LPELR (22248) 1 at 22-23, ACB LTD vs. AJUGWO (2011) LPELR (3637) 1 at 22-23, ONEGBEDAN vs. UNITY BANK PLC (2014) LPELR (22186) 1 at 23-24 and UNITY BANK PLC vs. OLATUNJI (2014) LPELR (24027) 1 at 45-46.
On the showing of the Respondent as deposed to in paragraph 11 of the affidavit in
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support of the writ (already reproduced above), upon the non-delivery of the PMS to it by the Appellants, the parties in a bid to amicably settle the matter entered into the contract, Exhibit A to the affidavit, for the supply of Dual Purpose Kerosene (DPK). This was a novation of the previous contract between the parties for the delivery of PMS and the effect of the novation is that it extinguished the prior obligation of the parties and replaced the same with Exhibit A. There having been a bilateral discharge of the obligation and the replacement of the same with Exhibit A to the affidavit in support of the writ, the Respondent cannot validly argue that its cause of action is predicated on the wrong done to it before the contract was entered into. No! As deposed by the Respondent, the wrong done to it was amicably settled and a new contract was entered into. The critical question therefore is whether that action predicated on the contract is within the jurisdiction of the lower Court. For the Respondent, it is an admiralty matter which falls within the jurisdiction of the lower Court; while for the Appellants, it is a simple contract which the lower Court
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does not have jurisdiction to entertain.
An integral reading of paragraphs 12-19 of the affidavit in support of the writ (already reproduced above) makes it limpid that the Respondent’s grouch, which activated its cause of action, is that, of the DPK valued N300, 051, 000.00 under the contract, the Appellants only repaid N50 million and supplied products worth N75 million, making a total of N125 million and leaving outstanding the sum of N180, 051,000.00 which is the amount claimed by the Respondent. By all odds, it is as clear as crystal that the cause of action is predicated on the said contract, Exhibit A to the affidavit in support of the writ of summons. Now, does the fact that the product involved in the contract is petroleum product, or the fact deposed to in paragraph 20 of the affidavit in support of the writ, that the 2nd Appellant was used to lift the product and that the product was sold outside the shores of Lagos make it an admiralty matter as argued by the Respondent? It would not seem to be so on the settled state of the law.
In CHEVRON (NIG) LTD vs. LONESTAR DRILLING (NIG) LTD (2007) 16 NWLR (PT 1059) 168 at 185 & 187, the
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Supreme Court held that an action for breach of contract for the supply of goods conveyed by sea is not an admiralty action. The mere fact, in the diacritical facts of this matter, that products which were to be supplied to the Respondent were lifted in the 2nd Appellant’s vessel and sold elsewhere does not bring the claim within the admiralty jurisdiction of the lower Court. In pauciloquent terms, the cause of action is that the Appellants failed to perform their obligations under the contract, Exhibit A to the affidavit in support of the writ. There is no way that failure can come within the admiralty jurisdiction of the lower Court. See also I. T. P. P. LTD vs. UBN PLC (2006) 12 NWLR (PT 995) 483 at 508-509 and B. B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 35-39.
The Contract Agreement between the 1st Appellant and the Respondent is at pages 10-12 of the Records. The agreement reached by the parties as set out in paragraph 3 (ii) a-e and (iii) is as follows:-
“(ii) The parties further agree as follows:
(a) The monetary value of the 2.682million litres of PMS outstanding and yet to be delivered to FAICECK at N89
40
per litre and other associated costs of the transaction like documentation and interests shall be N300,051,000.00 (Three Hundred Million and Fifty One Thousand Naira)
(b) FAICECK has now agreed to accept delivery of DPK in place of the balance of 2.682million litres of PMS as aforementioned.
(c) Pursuant to Clauses (a) and (b) above, FDW shall immediately deliver five (5) drafts for the sum of N50,000,000.00 (Fifty Million Naira) and One Million Litres of Dual Purpose Kerosene (DPK to FAICECK from its April Cargo (estimated at N98 per litre resulting in N98million leaving a balance of N152.051million.
(d) Additional N50million and One Million Litres of Dual Purpose Kerosene (DPK) shall be delivered in May to FAICECK at the prevailing market price.
(e) Any shortfall arising from 3 (ii) (c) and (d) above from the cash paid and product delivered shall be assessed in monetary terms and paid in Bank Draft to FAICECK.
(iii) FDW covenants and warrants that the delivery of the outstanding quantity of DPK due to FAICECK shall be hitch-free and concluded within the acceptance practice in the downstream sector of the industry.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
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Undoubtedly, the above extract from the contract agreement between the parties, Exhibit A of the affidavit in support of the writ of summons, leaves no one in any doubt whatsoever that the contract between the parties is a simple contract based on novation for the supply of Dual Purpose Kerosene (DPK) in place of Premium Motor Spirit (PMS). Such a contract does not come within the jurisdiction of the lower Court. See ONUORAH vs. KRPC LTD (2005) 6 NWLR (PT 921) 393, SOCIO-POLITICAL RESEARCH DEVELOPMENT vs. MINISTER, FCT (2018) LPELR (45708) 1 at 24-31, SPDC (NIG) LTD vs. NWAWKA (2003) LPELR (3206) 1 at 11 and ROE LTD vs. UNN (2018) LPELR (43855) 1 at 17-18. In the light of the fact that the Respondent’s action is founded on a simple contract and that it is not an admiralty matter, the lower Court got it wrong when it held as follows at page 90 of the Records:
“On the issue of whether this case is a simple contract. I am satisfied that the case before this Court comes within the Admiralty Jurisdiction of this Court as provided in Section 2 of the Admiralty Jurisdiction of this Court. The issue of contract entered into by the parties only arise
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after the alleged wrong of the Defendants/Applicants has been committed.
I hold that this Court has the jurisdiction to try this case.”
Jurisdiction is the fons et origo, the threshold of judicial power and judicialism. It is the bloodline and livewire of all proceedings in a Court or Tribunal. It is the spinal cord of a Court of law:A-G OYO STATE vs. NLC (2003) 8 NWLR (PT 821) 1 at 26. Where jurisdiction is lacking as in this case, the entire proceedings are a nullity, however well conducted as the want of jurisdiction is extrinsic to the adjudication. See ROSSEK vs. A. C. B. (1993) 8 NWLR (PT 312) 382 at 437 and 487, MADUKOLU vs. NKEMDILIM (2001) 46 WRN 1 at 13 and FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 35 and 56. Concomitantly, since the lower Court did not have jurisdiction to entertain the Respondent’s action founded on simple contract, it did not have the jurisdictional competence to make the ex parte orders against the Appellants. In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520:
“If a Court or Tribunal is not competent to entertain a matter or claim or suit, it is a waste of time
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for the Court to embark on hearing and determination of the suit, matter or claim … There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the Court and to the parties to do so.”
It is apothegmatic that a Court should consider and determine all issues properly raised before it. But in certain circumstances, it would be unnecessary so to do. These circumstances include where the decision appealed against is declared a nullity for want of jurisdiction. This is so because such issues may possibly arise in a fresh action before a Court seised with jurisdiction. See BRAWAL SHIPPING (NIG) LTD vs. F. I. ONWADIKE CO. LTD (2000) LPELR (802) 1 At 13-15, EDEM vs. CANON BALLS LTD (2005) 12 NWLR (PT 938) 27, SHASI vs. SMITH (2009) 18 NWLR (PT 1173) 330 at 356 and IFEKAUDU vs. IBEAGWA (2012) LPELR (14436) 1 at 19-20. It is for this reason that I will dispense with resolving the aspect of the twin issue distilled by the Appellants, which deals with whether the 2nd Appellant is a necessary party. This is so as not to express any opinion that may prejudice any fresh action before a Court of competent jurisdiction.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
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Ineluctably, the appeal is meritorious and it is hereby allowed. The abecedarian law is that the proper order to make where it is held that a Court has no jurisdiction is to strike out the case: ADESOKAN vs. ADETUNJI (1994) 6 SCNJ 123, ADELEKAN vs. ECU-LINE NV (2006) 6 SC (PT II) 32 and FHA vs OLAYEMI (supra) at 56-57. Accordingly, the ex parte orders of the lower Court made on 2nd December 2014 are hereby set aside for want of jurisdiction. The decision of the lower Court appealed against delivered on 26th January 2016 is hereby set aside. The Respondent’s action before the lower Court in SUIT NO. FHC/L/CS/1741/2014 is hereby struck out. The parties are to bear their respective costs of this appeal.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.
TIJJANI ABUBAKAR, J.C.A.: My Lord and learned brother OGAKWU JCA, granted me the privilege of reading before now the comprehensive leading Judgment just rendered in this appeal.
Taking-off from the preliminary objection of the Respondent, I am in agreement that the grounds of appeal are grounds of law even
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though, the grounds suffered some occasional and inconsequential infiltration by insignificant facts, such trivial infiltrations as rightly found in the leading Judgment cannot transmute the grounds of law to grounds of mixed law and facts in an interlocutory appeal, thereby making it compelling for the Appellants to seek for and obtain leave to appeal in the instant appeal. A little grain of facts in the law must not tilt the position to straight mixed law and fact. I am fully behind the decision of my learned brother that this appeal is premised on grounds of law and law alone, the preliminary objection is therefore frivolous and vexatious, it deserves to be dismissed, I also dismiss it.
The substantive appeal has to do with whether the trial Court had jurisdiction to hear and determine the suit, the claim of the Respondent as rightly found by my learned brother is not founded on a claim in admiralty, the claim is rooted in simple contract, the lower Court is therefore stripped of jurisdiction to hear and determine the suit having regard to Section 251 of the Constitution of the Federal Republic Of Nigeria 1999 (as amended). My learned brother cited
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the decision of this Court in appeal No. CA/L/485/2016: NUN RIVER VENTURES LTD V. ABBNG LTD (unreported), where my learned brothers gave me the privilege of preparing the lead Judgment in that appeal, while commenting on the typical attitude of Courts in matters crafted by litigants to carry an admixture of ordinary and maritime claims lumped together, I said as follows:
“….I think the mere sight of a Boat by the learned trial judge, prompted the Court or by some impulse lured the Court into deciding that since the claim involves a boat, which by extension falls within the definition of a ship, only the Federal High Court to the exclusion of every other Court can adjudicate on the claim. The learned trial judge obviously became swayed by the fact that a speed boat falls into the classification of ship pursuant to Section 25 of the Admiralty Jurisdiction Act Cap AS, LFN 2004, without considering the peculiar aggregate of facts which put together formed the basis of the action before the lower Court, in particular the boat, a property belonging to the Appellants, allegedly being detained by the Respondents without the prior consent of the
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Claimants/Appellants. Even though a speed boat is involved in the dispute between the parties, this is not sufficient to confer jurisdiction on the Federal High Court in the exercise of its exclusive Admiralty Jurisdiction, this is a case of detinue, the claim relates to breach of agreement and conversion, this cannot obviously fall within the Admiralty jurisdiction of the Federal High Court…”
In the instant appeal, the Respondent in crafting his claim, embarked on legal gymnastics and brought in the second Appellant a totally unnecessary party, just to give the suit some pigmentation of admiralty which the learned trial Judge gullibly grabbed. The lower Court obviously had no such jurisdiction, just as I said in NUN- RIVER LTD V. ABBG LTD (Supra)
“….where a Court lacks jurisdiction to entertain a suit, any attempt to adjudicate on the suit would render the proceedings, no matter how well conducted a nullity. The jurisdiction of a Court or tribunal can never be the subject of negotiation between parties, nor can it be waived, jurisdiction cannot be conferred on a Court by consent or agreement of the parties. It is fundamental and indispensable, it
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is the pedestal upon which decisions of Court are concreted, it is the footing upon which the decisions of Court are founded. See: IJEBU-ODE L.G. vs. ADEDEJI (1991) 1 NWLR (Pt. 166) 136; UTIH & ORS VS. ONOYIVWE [1991] 1 NWLR (Pt. 166) 166. In OBI vs. INEC [2007] NWLR (Pt. 1046) 560; (2007) LPELR – 2166 (SC), 32 to 33, paras. G – E, the Supreme Court of Nigeria, per ADEREMI, JSC held as follows:
“Jurisdiction is the legal power or legal authority that enables a Judge to enter into adjudication in a matter before him. It should however be noted that the jurisdiction should be examined not when it is invoked but when the cause of action arose. I wish further to say that a Court is said to have original jurisdiction in a particular matter when that matter can be initiated before it and as a corollary, a Court is said to have appellate jurisdiction when it can only go into the matter on appeal after it had been adjudicated on by a Court of first instance. It follows, therefore, that where a Court takes upon itself to exercise power under jurisdiction which it does not possess; its decision is tantamount to nothing. Let it be noted that an action of a
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Judge which relates not to his office, is of no force; there can never be obedience to any order he may make. The question may then be asked: what determines the jurisdiction of a Court? The answer is this: generally, it is the claim of the plaintiff which determines the jurisdiction of a Court entertaining the same….”
For the above reasons and the more detailed reasons set out in the leading Judgment, I am in complete agreement that Appellants appeal is richly meritorious and deserves to be allowed. It is hereby allowed by me; I also join my learned brother in striking out the suit at the Court below for want of jurisdiction. I endorse all consequential orders.
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Appearances:
Chukwudi Enebeli, Esq. with him, Ms. Similoluwa Akintoye) For Appellant(s)
Temilolu Adamolekun, Esq. with him, Gbenga Akinde-Peters, Esq. & P. Akin-Ogunbiyi, Esq.) For Respondent(s)