KULAK TRADES & INDUSTRIES PLC V. THE TUG BOAT M/V JAPUAL B & ANOR
(2010)LCN/4112(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of December, 2010
CA/PH/62M/2006
RATIO
GROUND OF APPEAL : WHETHER A GROUND OF APPEAL MUST BE A COMPLAINT ARISING FROM THE ACTUAL DECISION OF THE COURT FROM WHICH THE APPEAL EMANATES
It is trite that ground of appeal must be a complaint arising from the actual decision of the court from which the appeal emanates. It is not right for the appellant, like Don Quixote, to create his battle ground out of share brain wave. As a follow up, Respondent has rightly invited us to strike out issue 4 purportedly distilled from the incompetent ground 5 on the authority of SEHINDEMI v. GOV. LAGOS STATE (2006) ALL FWLR [pt.311] 1858. PER EJEMBI EKO, J. C. A.
FORMULATION OF ISSUES FOR DETERMINATION: POSITION OF THE LAW ON FORMULATION OF ISSUES FOR DETERMINATION IN THE APPEAL
It is trite that every issue for determination in the appeal must not only be related to the ground (s) of appeal, it must fall within the ground (s). See BAMGBOYE v. OLAREWAJU (1991) 4 NWLR [pt.184] 132; LABIYI v. ANRETIOLA (1992) 10 SCNJ 1. PER EJEMBI EKO, J. C. A.
JUSTICIABLE INTEREST: WHAT IS A JUSTICIABLE INTEREST
A justiciable interest, according to the learned jurist, simply means a cause of complaint; the civil right or obligation fit for determination by a court of law, and a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine under section 6 (6) (b) of the 1999 Constitution. All that a party needs to disclose in his suit, in order to be clothed with locus standi in the matter, is that he has question to be determined by the court as to his civil rights and obligations against another. There the numerous decisions on this. The authorities include ADESANYA v. PRESIDENT, FRN (1981) 5 SC 112; BURAIMOH OLORIODE v. OYEBI (1984) 5 SC 1. The law on locus standi is no longer as it was under the common law. It has now been made statutory “by the constitutional provisions of section 6 (6) (b) of the 1999 Constitution.” See A.G., KADUNA STATE v. HASSAN (1985) 2 NWLR 483 at 522. PER EJEMBI EKO, J. C. A.
JURISDICTION: CONSEQUENCE OF A COURT MAKING AN ORDER OUT OF JURISDICTION
Until the Supreme Court decision in ROSSEK v. A.C.B. (1993) 10 SCNJ 20 a litigant in Nigeria who felt that the order made against him by a court that has no jurisdiction to make the order may be disregarded without liability for consequences for disobedience, or process for contempt, That seemed to be the common law position. That is, if a court had no jurisdiction whatever orders it makes are ultra vires, null and void. They do not need a further formal order to have the ‘void orders set aside. See U.A.C. v. MACFOY (1961) 3 ALL E.R. 1169 at page 1172 per Lord Denning MR. That seems to be the position also in the United States of America (USA). See particularly UNITED STATES v. UNITED MINE WORKERS OF AMERICA US SCR 91 l. Ed. 884 at 911 cited with approval in the Nigerian case of N.N.S.C. v. PLASTEX LTD (1986) 5 NWLR [pt.40] 204 at 212. All that has changed in Nigeria with the Supreme Court decisions in ROSSEK v. A.C.B. (supra) at pages 39 40; and ARUBO v. AIYELERU (1993) 2 KLR 23, The position of the law now in Nigeria is that – i. A judgment or order of every law court remains in force and binding until it has been set aside by a court of competent jurisdiction. ii. To hold otherwise is to clothe a party against whom a judgment has been obtained with discretion to decide, in his wisdom, that the judgment is invalid and not binding on him. This is an invitation to anarchy. iii. A party who is aware that an order is null or invalid should apply to have it set aside. iv. The dictum of Lord Denning in UAC v. MACFOY (1961 3 ALL E.R 1169, 1172; (1962) A.C. 152 often-quoted to the effect that there is no need to set aside an order which is void because: it is a nullity is not only an obiter but also per incuriam. PER EJEMBI EKO, J. C. A.
JUSTICE
HON. JUSTICE ISTIFANUS THMOS Justice of The Court of Appeal of Nigeria
HON. JUSTICE EJEMBI EKO Justice of The Court of Appeal of Nigeria
HON. JUSTICE TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
KULAK TRADES & INDUSTRIES PLC Appellant(s)
AND
1. THE TUG BOAT M/V JAPUAL B
2. THE OWNERS OF M/V JAPAUL B Respondent(s)
EJEMBI EKO, J. C. A. (Delivering the leading judgment): This interlocutory appeal has arisen from the ruling of the Federal High Court sitting at Port Harcourt (Coram: A.O. Faji, J) delivered on 16th September, 2004. The ruling of 16th September, 2004 was consequent upon the application filed by the Defendants, now the Respondents in this appeal, on 31st August, 2004, seeking inter alia an order unconditionally releasing the 1st Defendant/Respondent, the Tug Boat MV JAPAUL B, arrested pursuant to an order of the Federal High court (hereinafter called the trial court”) made on 20th July, 2004. The ground for the unconditional release order sought is that the Plaintiff/Appellant failed to comply with the order directing him to deposit the sum of N100, 000.00 with the Admiralty Marshall every week within the period the 1st Defendant/Respondent remained arrested and detained. For better appreciation of the antecedent circumstance of this application I will go a little in to the genesis of the dispute and this appeal.
On 20th July 2004 the Plaintiff/Appellant took out a writ of summons issued by the trial court against the Defendants/Respondents;. The plaintiff/Appellant claimed N5,000,000.00 (five million Naira) as remuneration for salvage services rendered to the Defendants/Respondents, Tug Boat MV JAPAUL B on or about 28th June , 2004. The Plaintiff/Appellant filed contemporaneously with the writ, a motion ex parte in which he prayed for “an order arresting and/or detaining the Tug Boat M/V JAPAUL B now lying at Marine Base, Port Harcourt or any where within the jurisdiction,, of the trial court pending his provision of satisfactory bank guarantee “to secure the plaintiff’s claim” The ex parte application was heard on 20th July, 2004, the very day it was filed, and it was granted as prayed. The trial court specifically directed, in the order it made that –
The Plaintiff shall file a duly worded undertaking as to damages as well as an indemnity for the Admiralty Marshalls expenses. The Plaintiff shall also pay N100, 000.00 deposit for week during which the 1st defendant remains under arrest. This is to defray the expense of the Admiralty Marshall in relation to the arrest. The matter is adjourned to 30.7.2004 for mention.
The foregoing order is the fulcrum of this appeal. It is against this order that the Defendants/Respondents had, in their application filed on 31st August, 2004, sought an unconditional order of the trial court to release from arrest and detention the 1st Defendant/Respondent, the Tug Boat M/V JAPUAL B, on the ground that the Plaintiff/Appellant failed and/or refused to comply with the order directing him to deposit N100,000.00 “for every week during which the 1st Defendant remains under arrest.”
The Defendants/Respondents’ application, filed on 31st August, 2004 was heard on 7th September, 2004. The reserved ruling was delivered on 16th September, 2004 by the trial court. Agreeing with the Defendants/Respondents the learned trial Judge held inter alia at page 80 of the Record –
I agree with Mr. Oloriegbe that payment of the weekly deposit is a condition – precedent to the subsistence of the order of arrest. Also, as rightly pointed out by Mr. Oloriegbe, the Plaintiff has not complied with the order as payment of N200,000.00 can not be compliance with an order for payment of weekly deposit of N100,000.00 for 7 weeks (at the time this motion was argued).
Since the Plaintiff has not fulfilled the condition precedent for sustenance of the order he applied for, the necessary quid pro quo is absent. The order can not therefore stand. Accordingly, this Court hereby orders the unconditional release from arrest of the Tug Boat M/V JAPUAL B, arrested pursuant to an order of this Court made on 20.7.04.
This is the order that prompted the Plaintiff/Appellant to file this interlocutory appeal on 20th September, 2004. The Notice of Appeal has 5 grounds of appeal. The grounds are herein below reproduced as follows –
1. The learned trial Judge erred in holding that the Defendants/Applicants had the locus standi or competence to bring the application on the grounds of the relief being sought, that non-compliance with the order of court to deposit N100,000.00 (One Hundred Thousand Naira) every week for the time that the vessel remains under arrest.
PARTICULARS OF ERROR
(a) The order of the trial court dated the 20th of July 2004 was clear and to the following effect:
“4. The Plaintiff shall also pay one Hundred Thousand Naira (N100,000.00) deposit for every week during which the 1st Defendant (The Tug Boat M/V “Japual B”) remains under arrest.
5. This order (4) above is to defray the expenses of the Admiralty Marshall in relation to the arrest.”
(b) The benefit of the said order was for the Admiralty Marshall and no other person.
(c) The learned trial Judge’s conclusion that the Defendants’ have the competence to bring the application on the ground of failure to comply with the above order failed to consider and give appropriate credence to the evidence in the Plaintiff’s Counter Affidavit of the Defendants’ persistent failure to comply with court’s order to also provide security for the release of the vessel.
(d) It is unjust that the Defendants are allowed to use their failure to comply with the order of arrest to obtain the unconditional release of the vessel through the backdoor.
(e) Non compliance with an order of court which is made for the benefit of the Admiralty Marshall alone, is not a ground recognized under the Admiralty Jurisdiction Act 1991 (“AJA”) and/or the Admiralty Jurisdiction Procedure Rules (“AJPR”) and/or Common Law Admiralty Practice for the unconditional release of a vessel under arrest, particularly in view of the uncontroverted evidence to the effect that it had not been shown that the sum of N100,000.00 (One Hundred Thousand Naira) paid in the first instance was not sufficient to cover the expenses of the Admiralty Marshall.
(f) In any event, failure to comply with a court order in this context should have led to contempt proceedings and not unconditional release of the vessel.
2. The learned trial Judge erred in law when he held that Order viii, Rule 3 of the AJPR gives the Admiralty Marshall a discretion which will not be exercised if the court makes an order as regards Admiralty Marshall’s expenses which it considers just.
PARTICULARS OF ERROR
(a) Order VIII Rule 3(1) and (2) are in the nature of subsidiary legislation being rules made pursuant to the statutory powers conferred on the Chief Judge pursuant to Section 21 of the AJA.
(b) In the absence of powers conferred by the primary legislation or the subsidiary legislation itself, a mandatory or discretionary order of court can not override or be at variance with the provisions of such legislation on the relevant subject.
(c) The AJPR makes clear and unequivocal provisions regarding the funds to be deposited with the Admiralty Marshall regarding fees and expenses.
(d) The AJPR docs not provide for the payment of N100, 000.00 (One Hundred Thousand Naira) every week that a vessel is under arrest.
(e) The policy and logic underpinning Order VIII Rule 3 is that since Admiralty Marshall’s fees’ and expenses is in the nature of an indemnity for actual (and not perceived) fees and expenses, there can not be a blanket order for the payment of sums of money without any indication of what the expenses are or would be in the circumstances of each case.
(f) An order of court which is given in contravention of or at variance with the AJPR is ultra vires and made without jurisdiction.
3. The learned trial Judge erred in law when he held that the Plaintiff had waived its right to complain about the order to pay N100, 000.00 (one Hundred Thousand Naira) for every week that the vessel remains under arrest.
PARTICULARS OF ERROR
(a) A person can not in law waive an order that is in contravention of the law and/or made ultra vires and/or without jurisdiction.
(b) The payment of the sum N100, 000.00 (one hundred Thousand Naira in the first instance does not preclude the Plaintiff from challenging the competence of the said order.
(c) Payment of the sum of N100, 000.00 (one hundred Thousand Naira) does not constitute an estoppel against challenging the validity of the said order.
4. The learned trial judge erred in law when he held that the order of payment of the sum of N100,000.00 (one r every week the vessel remains under arrest was a condition precedent of the existence of the arrest.
(a) The overriding laws with regard prescription to the condition precedent for the arrest of vessels is the AJA 1991 and AJPR 1993.
(b) The conditions precedent as provided in those laws can be found upon a combined leading of section 2(3) and section 5(4) the AJA 1991.
(c) The learned trial Judge can not by an order which is ultra vires, introduce conditions precedent unknown to law.
5. The learned trial Judge erred in law when he considered and applied order ix Rule 2 (3) AJPR in justifying his decision to release the vessel from arrest.
PARTCULARS OF ERROR
(a) Order IX Rule 2(3) AJPR can not be read in isolation of Order VIII Rule 2 AJPR which makes specific provisions for Admiralty Marshall’s fees and expenses.
(b) The application of an ultra vires order can not be the basis of a release of a vessel from arrest on such terms as are just.”
The Defendants/Respondents filed Notice of Preliminary objection to all the five (5) grounds of appeal. The Preliminary objection was argued in the Respondents Brief filed on 11th February, 2009, but deemed filed and served on 17th February, 2009. The objection was argued on three broad heads, namely –
i. That grounds 1 – 5 are grounds of mixed law and facts and that as such they require leave first sought and obtained under section 241 (1) (b) of the 1999 Constitution to be competent. And that as no such leave was first sought and hard the grounds of appeal are ab-initio incompetent.
ii. That ground 5 of the grounds of appeal does not arise from the actual decision of the trial court, as borne out by the records of appeal.
iii. the particular of error for each ground of appeal are at large, narrative, argumentative and have no nexus with the decision complained against contrary to Order 6, Rules 2 and 3 of the Court of Appeal
All parties are ad idem that this is an interlocutory appeal. A ground of appeal, in an interlocutory appeal, which questions the decision appealed against on point of law alone needs no leave to appeal. The interlocutory appeal on points of law alone is of right under section 241 (1) (b) of the 1999 Constitution. see MINSTER; FCT v. ABDULLAHI (2010) ALL FWLR [pt.57] 179, at 192. The Respondents contend that since the grounds of appeal in this interlocutory appeal are of mixed law and facts, and not of law alone, they are not covered by section 241 (1) (b) of the 1999 Constitution. They consequently require leave to be competent. In determining whether the ground of appeal, tagged as error of law, is indeed a ground of law alone and not of facts or of mixed law and facts, the court must examine the nature of the complaint in the ground and the particulars of error in support thereof. That is what the Supreme Court did in S.U. OJEMEN & ORS v. HIS HIGHNESS WILLIAM O. MOMODU II & ORS (1983) 1 SCNLR 183; NWADIKE v. IBEKWE (1987) 4 NWLR [pt.67] 718. It is not its cognomen of the ground nor the designation as error of law, but the essence of the ground and the reality of the complaint embedded in the ground that makes it an error of law or otherwise.
On ground 1, Respondents submit that a critical examination of the complaint therein viz-a-viz the particulars of error reveals that it is obviously a ground of mixed law and facts in that the issue of the locus standi of the Respondents in the application can not be determined without regards to the facts and the circumstances that gave rise to the case. I do not think the Respondents are correct in law on this. It is the set of facts that defines whether a litigant has locus, standi or standing to commence any action. In determining whether a party has locus standi, the facts on which he relies to commence the action have to be examined to see whether the facts justify his legal platform or standing to initiate or commence the action. Thus, by way of analogy, a ground of appeal complaining that there was no evidence: or no admissible evidence upon which a decision or finding was based is a ground of law. See NWADIKE v. IBEKWE (supra) at page 744. The complaint under this ground is that the trial court took some wrong criteria from the facts before him in holding that the Plaintiff/Respondent had locus standi to commence his application. The complaint no doubt is one of law.
I have also considered the complaints in grounds 2, 3 and 4 of the grounds of appeal. The complaint in each of the grounds appears to me to be complaint on point of law alone. The complaint under ground 2 is that the trial Judge did not correctly interprete the law when he held that Order viii, Rule 3 of the Admiralty Jurisdiction Procedure Rules (AIPR) gives the Admiralty Marshall a discretion which will not be exercised if the court makes an order as regards Admiralty Marshall’s expenses which it considers just. Order viii, Rule 3 is a statutory provision. A complaint that the trial Judge did nor correctly interprete the statutory provision to bring out its full intent and purport is a complaint of an error of law. Thus, as stated by Eso, JSC in OGBECHIE v. ONOCHIE (1986) 2 NWLR [pt.23] 484 at 491 H; if the tribunal approached the construction of a legal term of art in a statute on the erroneous basis that a statutory wording bears a meaning beyond its ordinary meaning – it is a question of law. This also is the situation under grounds 3. The complaint under ground 3 is about the construction and application of the legal term: waiver of a legal right.
Under ground 4 the complaint is that the trial Judge erred in law when he held that his order for payment of N100,000,00 for every week the vessel remains under arrest was a condition precedent for the continuous existence of the arrest and detention of the vessel. It was held in OGBECHIE v. ONOCHIE (supra) at page 491 that where the court or tribunal purports to find that a particular event occurred although it is seised of no admissible evidence that the events did infact occur, it is a question of law. The ground also complains that the construction placed on the earlier order made by the court was erroneous. So, it is a question of law.
The objection to ground 5 of the grounds of appeal is that the ground does not arise from the actual decision of the trial court and that the trial court did not take into consideration, or considered, Order ix, Rule 2 (3) of AJPR to justify his decision to release the vessel from arrest. The complaint in ground 5 is that “the learned trial Judge erred in law when he considered and applied Order IX Rule 2 (3) AJPR in justifying his decision to release the vessel from arrest.” The Ruling delivered on 16th September, 2004 the subject of this interlocutory appeal is at pages 73 – 80 of the Record of appeal. I have painstakingly read it. No where in the Ruling did the learned trial Judge rely on or consider Order IX Rule 2 (3) AJPR to justify his order releasing the vessel from arrest. I therefore, in allowing the objection to ground 5 of the grounds of appeal, agree with the Respondent’s counsel that ground 5 has not arisen from the decision of the trial court dated 16th September, 2004 that is the subject of this appeal.
It is trite that ground of appeal must be a complaint arising from the actual decision of the court from which the appeal emanates. It is not right for the appellant, like Don Quixote, to create his battle ground out of share brain wave. The only provisions of the AJPR considered in the ruling are Order 7, Rules 2 (2) & (3); Order 8, Rules 3(1) & (2) and 5 (1) and Order 11, Rule 1.
As a follow up, Respondent has rightly invited us to strike out issue 4 purportedly distilled from the incompetent ground 5 on the authority of SEHINDEMI v. GOV. LAGOS STATE (2006) ALL FWLR [pt.311] 1858. It is trite that every issue for determination in the appeal must not only be related to the ground (s) of appeal, it must fall within the ground (s). See BAMGBOYE v. OLAREWAJU (1991) 4 NWLR [pt.184] 132; LABIYI v. ANRETIOLA (1992) 10 SCNJ 1. Issue 4 founded on the incompetent ground 5 of the grounds of appeal is also incompetent or invalid. Accordingly, it is hereby struck out.
The Respondent has also urged that the grounds of appeal have particulars of errors that are at large, narrative, argumentative and which have no nexus respectively with the grounds of appeal.
Generally, it is the substance not the form that is important. And the courts now lean more towards doing substantial justice, rather lean on arcane technicality, It is also the law that it is the particular (s) of error that offend order 6 Rules 2 and 3 that are liable to be struck out. For this purpose the onus is on the Respondent to pin-point which particulars of error offend order 6 Rules 2 and 3 of the court of Appeal Rules 2007. The objector respondent cannot sheirk this responsibility and transfer to the court the burden to do the job for him. I do not think, upon going through the arguments in the preliminary objection and the grounds of appeal, that the Respondent is on firm ground on this footing.
The preliminary objection, except in relation to ground 5 of the grounds of appeal, lacks substance and it is hereby overruled’ The objection succeeds in part and only in relation to ground 5 and issue 4 arising therefrom, as distilled from the grounds of appeal by the Plaintiff/Appellant.
The three issues formulated by the Appellant from the four (4) remaining grounds of appeal are as follows –
3.1.1. Whether the Respondents had the locus standi or competence to bring the application for unconditional release of the vessel on the sole ground that the order for the benefit of the Admiralty Marshall was not complied with [Ground 1].
3.1.2. Whether the lower court was right in holding that the powers of the Admiralty Marshall under VIII, Rule 3 of the Admiralty jurisdiction procedure Rules (ALPR) was discretion and exercised if the court makes Marshall’s expenses which it considers just, [Ground 2].
3.1.3. Whether the lower court was right in holding that since a sum in excess of N5,000.00 (Five Thousand Naira) had been paid and collected by the Admiralty Marshall the Appellant had waived its right to complain that the court acted ultra vires its powers by making the order in the first place. [Ground 3 &4].
The three (3) issues formulated from the four (4) remaining grounds of appeal by the Respondents are not too dissimilar. In the circumstance my adopting Appellant’s issues will do no harm to the Respondents. I hereby adopt the issues formulated by the Appellant.
Issue 3.1.1 formulated by the Appellant and Respondents issue 1 all ask whether the Respondents had locus standi to bring the application for the unconditional release of the vessel, The Tug Boat M/V JAPUAL B, having regards to the facts of the case. A rehash of, the preliminary facts of this case is useful for the appreciation of this issue.
The 1st Defendant/Applicant in the application on which the Ruling, the subject of this appeal, was founded is the vessel, The Tug Boat M/V JAPAUL B. The Appellant was the Plaintiff in the suit at the trial court. On 20th July, 2004 the plaintiff/Appellant had moved the trial court upon the motion ex parte filed the same day for the arrest of the vessel, the 1st Respondent in this appeal. The application was granted. The trial court there and then made some consequential orders, including orders directing the Plaintiff/Appellant to file a duly worded undertaking to pay damages as well as indemnity for the Admiralty Marshall’s expenses. The trial court further directed the Plaintiff/Appellant to pay N100,000.00 deposit for every week during which the 1st Defendant/Respondent remained under arrest. The vessel, The Tug Boat M/V JAPUAL B, the 1st Defendant/Respondent, was arrested and detained consequent upon the order of the trial court made ex parte made on 20th July, 2004. The 2nd Defendant/Respondent are the owners of the vessel. when it became apparent to the Defendants/Respondents that the plaintiff/Appellant had fallen in arrears of them order directing them to “pay N100,000.00 deposit for every week during the 1st Defendant remains under arrest” they applied on 31st August,2004 for unconditional release of the vessel, The Tug Boat M/V JAPUAL Bi on the ground of non-compliance with the order of the trial court directing the Plaintiff/Appellant to pay deposit of N100,000.00 for every week the vessel remained under arrest. The trial court ruled in favour of the unconditional release of the vessel on the ground that the Plaintiff had not been complying with the order directing them to be paying deposit of N100, 000.00 for every week the vessel remained under arrest.
The Plaintiff/Appellant now argues that since the order directing them to “pay N100,000.00 for every week during which the 1st Defendant (The Tug Boat M/V JAPUAL B) remains under arrest” was intended expressly “to defray the expenses of the Admiralty Marshall in relation to the arrest”; the Defendants, now the Respondents, have no locus standi in their application praying for unconditional release of the 1st Defendant, the vessel, from the arrest.
It is not disputed in this appeal that orders of the trial court are meant to be obeyed. It is also not in dispute that pursuant to the order made on 20th July, 2004 the vessel, The Tug Boat M/V JAPUAL B, was arrested and remained under arrest until 16th September, 2004. The vessel and its owners respectively are the 1st and 2nd Defendants, now 1st and 2nd Respondents in this appeal. The primary, and in fact the only, relief sought in the application of the Defendants at the trial court filed on 31st August, 2004 and in respect of which the ruling was delivered on 16th September, 2004 is an order for unconditional release of the vessel, the 1st Defendant the Tug Boat M/V JAPUAL B, from arrest. The ground for seeking that order was the alleged non-compliance of the Plaintiff with the order directing them lo be paying N100,000.00 deposit for every week the vessel remained under arrest.
It is not in dispute that the order made on 20th July 2004 by the trial court had adversely affected the rights of the Defendants. They were under obligation pursuant to the said order. The 1st Defendant was placed under arrest as a result. The 2nd Defendant, the owners of the 1st Defendant, had suffered pecuniary loss as a result of the arrest and detention of the 1st Defendant. The Appellant can not be heard to say that the Defendants who had suffered loss of their civil rights by the obligation placed on them by the order of 20th July 2004 have no locus standi to bring application for the unconditional release of the 1st Defendant, the vessel, arrested pursuant to the said order. It is clear from the facts and circumstances disclosed on the record that the Defendants, now the Respondents, had justiciable interest upon which they could be heard on their application for the unconditional release of the vessel, the 1st Defendant, from arrest. As Obaseki JSC puts it in AFOLOYAN v. OGUNRINDE (1990) 1 NWLR [pt. 127] 367 a party is said to have locus standi if he discloses in his claim a justiciable interest upon which he could be heard in the litigation. A justiciable interest, according to the learned jurist, simply means a cause of complaint; the civil right or obligation fit for determination by a court of law, and a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine under section 6 (6) (b) of the 1999 Constitution. All that a party needs to disclose in his suit, in order to be clothed with locus standi in the matter, is that he has question to be determined by the court as to his civil rights and obligations against another. There the numerous decisions on this. The authorities include ADESANYA v. PRESIDENT, FRN (1981) 5 SC 112; BURAIMOH OLORIODE v. OYEBI (1984) 5 SC 1. The law on locus standi is no longer as it was under the common law. It has now been made statutory “by the constitutional provisions of section 6 (6) (b) of the 1999 Constitution.” See A.G., KADUNA STATE v. HASSAN (1985) 2 NWLR 483 at 522.
The Respondents, as Defendants/Applicants, had locus standi to apply for the unconditional release of the 1st Defendant/Respondent, the vessel, from arrest pursuant to the order of the trial court made on 20th July 2004. The locus standi for asking for order of unconditional release from arrest and the merits of the order of unconditional release from arrest are two different issues. This issue is hereby resolved in favour of the Respondents and against the Appellant.
Appellant’s issue 3.1.2, which is the Respondents’ issue 2, questions whether the trial court was right in holding that the powers of the Admiralty Marshall under Order VIII Rule 3 of the AJPR was discretionary and would not be exercised if the court makes an order as regards the Admiralty Marshal’s expenses which the trial court considers just. I have read the Appellants brief on this issue. It appears to me that the Appellant is using this occasion, or appeal, to argue that the trial court lacked the necessary competence to make the order directing the Plaintiff/Appellant to pay N100, 000.00 as deposit to the Admiralty Marshall for every week the vessel remained under arrest. Appellant argues that the provisions of order VIII Rule 3 (1) and (2) AJPR are clear as regards the funds to be deposited with the Admiralty Marshall in respect of fees and expenses; that the deposit does exceed N5,000.00, and that the AJPR does not provide for payment of N100,000.00 for every week the vessel remains under arrest. For this two decisions of this Court Were cited. That is ASSURANCE FORENIGHEN SKUID (GJENSIDIG) v. M/V SEALION (ex “ANTIBES”) AND OWNERS/MANAGERS OF SEALION (2006) CLRN 62 AT 63 per U.M. ABBA AJI JCA and the unreported case no CA/L/351/40: SK SHIPPING COMPANY LIMITED (DISPONENT OWNERS OF THE MV K. TOPAZ) v. OCEAN TRADE CORPORATION (TIME CHARTERERS OF THE MV VELEBIT) & ANOR delivered on 20th November, 2008. In both cases the trial courts had respectively ordered that N100,000.00 be paid as deposit every week towards defraying the expenses of the Admiralty Marshall pursuant to order VIII Rule 2 [order 8 Rule 2] that Provides –
2. where a Person is liable to Pay fees or expenses, the Admiralty Marshall may –
a. accept an amount of money not exceeding N5,000.00 towards discharging the liability
In both cases this Court held that order for payment of N100,000.00 as deposit per week towards the expenses of Admiralty Marshall was excessive, arbitrary and oppressive in view of Order 8 Rule 2 of the AJPR.
The problem the Appellant faces in this appeal is that he did not appeal the order made on 20th July 2004 that obligated him to pay deposit of N100,000.00 for every week the vessel, the 1st Defendant/Respondent, remained under arrest. The order remains extant. The Appellant seems to me to be arguing that because that order is ultra vires and void it was not binding and that they have discretion as to whether to comply with it or submit their obeisance to it. Consequently, it follows, as the Appellant seems to say, that their non-compliance with it would not be a good ground for the order for the unconditional release of the detained vessel from arrest, as the trial court did.
Until the Supreme Court decision in ROSSEK v. A.C.B. (1993) 10 SCNJ 20 a litigant in Nigeria who felt that the order made against him by a court that has no jurisdiction to make the order may be disregarded without liability for consequences for disobedience, or process for contempt, That seemed to be the common law position. That is, if a court had no jurisdiction whatever orders it makes are ultra vires, null and void. They do not need a further formal order to have the ‘void orders set aside. See U.A.C. v. MACFOY (1961) 3 ALL E.R. 1169 at page 1172 per Lord Denning MR. That seems to be the position also in the United States of America (USA). See particularly UNITED STATES v. UNITED MINE WORKERS OF AMERICA US SCR 91 l. Ed. 884 at 911 cited with approval in the Nigerian case of N.N.S.C. v. PLASTEX LTD (1986) 5 NWLR [pt.40] 204 at 212. All that has changed in Nigeria with the Supreme Court decisions in ROSSEK v. A.C.B. (supra) at pages 39 40; and ARUBO v. AIYELERU (1993) 2 KLR 23, The position of the law now in Nigeria is that –
i. A judgment or order of every law court remains in force and binding until it has been set aside by a court of competent jurisdiction.
ii. To hold otherwise is to clothe a party against whom a judgment has been obtained with discretion to decide, in his wisdom, that the judgment is invalid and not binding on him. This is an invitation to anarchy.
iii. A party who is aware that an order is null or invalid should apply to have it set aside.
iv. The dictum of Lord Denning in UAC v. MACFOY (1961 3 ALL E.R 1169, 1172; (1962) A.C. 152 often-quoted to the effect that there is no need to set aside an order which is void because: it is a nullity is not only an obiter but also per incuriam.
In view of the foregoing all I can say under this issue is that it does not lie in the mouth of the Appellant to say that the order they obtained ex parte on 20th July 2004 does not bind them for as long as it remains extant and has not been set aside. This is not an appeal against that order of 20th July, 2004 which the Appellant, as the Plaintiff, obtained ex parte against the Respondents. For as long as that order remains extant it behooves the plaintiff/Appellant to submit to it; just as the trial court was entitled to enforce it as it did.
The Respondents made their point when they submit, in their brief, that every court is only entitled to decide the issue or issues raised on the claim(s) before it relying on WESTERN STEEL WORKS v. IRON AND STEEL WORKERS (1987) 1 NWLR [pt.49] 284 at 297. The issue before the trial court in the application for unconditional release of the arrested vessel from arrest was whether the beneficiary of the order made on 20th July, 2004 complied with the terms of the order. At page 76 of the Record the trial court observed that the issue before it was whether or not the plaintiff/Appellant complied with the order it made on 20th July, 2004. And at pages 78 – 79 of the record the learned trial Judge further observed that the Plaintiff/Appellant had started paying the N100,000.00 deposit weekly before they unilaterally stopped and that There after the Plaintiff did nothing to show that the order was not legally right or fair to him. One would have expected that the- plaintiff would have applied to this Court to vary the order or even filed an appeal against the order or sought a variation of the order by the Court of Appeal. plaintiff did none of these. It is too late in the day to complain. Even if had wanted to complain, it is not in opposition to the Defendants’ application. He ought to have filed his own application.
This case and the two case of ASSURANCE FORENINGEN SKUID (GJENSIDIG) v. M/V SEALION (supra) and SK SHIPPING COMPANIY LTD V. OCCANTRADE CORPORATION (supra) are quite distinguishable as the Respondents submitted. In these cases the orders, for payment of N100,000.00 as deposit, considered to be ultra vires and arbitrary, were timeously and respectively appealed. As observed by the trial court none of these is the situation in the instant appeal. The Appellant is ingeniously, albeit coming through the back door, resuscitating an issue they failed to raise by way of appeal against, or order for variation of, the order made on 20th July, 2004 which they consider ultra vires and a nullity.
The peculiar circumstance of this case permits me to resolve this issue against the Appellant.
The last and final issue in this appeal is Appellant’s issue 3.1.3, which is the Respondents’ issue 3. The question under this issue is whether the Appellant, as the Plaintiff, having paid the N100,000.00 deposit every week to the Admiralty Marshall for as long the vessel remained under arrest twice, the Appellant, as the Plaintiff had waived their right to complain that the trial court acted ultra vires its powers by making the order in the first place. The Appellant submits that the order being a nullity runs contrary to the Order 8 of AJPR and urges that we so hold, Appellant further submits on authority of MENAKAYA v. MENAKAYA (2001) 16 NWLR [pt.758] 203, that a statutory provision that confers a public right can not be waived.
I have read the Respondents’ response to this issue in their Brief. The Respondents, with all deference, did not answer the question whether the provisions of Order B under which the trial court made the order for payment of N100,000.00 weekly as deposit to the Admiralty Marshall for as long as the arrested vessel remained under arrest conferred public or private right. Respondent did not comment on MENAKAYA v. MENAKAYA (supra). The numerous cases cited by the Respondents seem to me to be authorities on waiver of a private right. I agree with the Appellant, as held in MENAKAYA v. MENAKAYA (supra) per Uwaifo JSC that –
When therefore it is argued that a statutory provision has been waived, it has to be considered whether the statute confers private or individual rights which may be waived or whether the statutory provision confers rights of a public nature as a matter of public policy. If it is the latter, the provision of such statute can not be waived as one is not permitted to contract out of or waive a rule of public or constitutional policy.
The order made by the trial court on 20th July, 2004 created an obligation on the Plaintiff/Appellant to pay N100,000.00 weekly as deposit in favour of thee Admiralty Marshall to defray the expenses of the latter. The Plaintiff/Appellant paid twice and stopped. The right to the deposit ensures to the Admiralty Marshall, an office created by statute charged with function of arresting and detaining ships, as may be directed by a law court. The right to that weekly deposit is no doubt a public right exercisable by the Admiralty Marshall. It is not a private right that enures to any private individual.
What is in issue in this appeal is the right to complain that the N100, 000.00 deposit the trial court directed the Plaintiff/Appellant to pay to the Admiralty Marshall for every week the arrested vessel, 1st Defendant/Respondent, remained under arrest was ultra vires or excessive. The issue is not whether the Plaintiff/Appellant waived his right to complain that the order of 20th July, 2004 as it affected them was ultra vires, excessive or unreasonable. In my considered view the issue is whether the Plaintiff/Appellant was liable to comply with that order since it had neither been varied nor set aside by a court of competent jurisdiction. For as long as that order remains extant the Plaintiff/Appellant is liable to obey it or comply with it. See ROSSEK v. A.C.B (supra). At pages 76 and 79 – 8-0 of the Record the learned trial Judge seems to me to be saying that for as long as the order he made on 20th July 2004 had neither been varied nor set aside the Plaintiff/Appellant was liable to comply it. Much as I agree that the learned trial Judge erred in stating at page 78 of the Record that the “Plaintiff has waived his right to complain about the court’s order;” I still hold the view that in substance the learned trial Judge was right in his view that the Plaintiff/Appellant could not complain about the order they were aware of and which they had not taken steps to vary or set aside. It is, in my view, a mere slip on the part of the learned trial Judge to state, as he did, that the Plaintiff/Appellant had waived their right to complain.
I view of all I have stated I do not think there is substance in this appeal. The appeal is hereby dismissed. The Appellant shall pay costs assessed at N50,000.00 in favour of the Respondents.
ISTIFANUS THOMAS, J. C. A.: I read before now, the lead judgment of my learned brother, EKO, J.C.A, just delivered. I wholeheartedly agree, that the appeal, has no merit and it ought to be dismissed, and I hereby dismiss the appeal.I abide with consequential orders including costs in the lead judgment.
T. O. AWOTOYE, J. C. A.: I am in complete agreement with my learned brother EJEMBI EKO J.C.A, my learned brother in the judgment just delivered this morning. I have a preview of the judgment in draft. The judgment has dealt with all the issues raised exhaustively.I have nothing to add to it. This appeal lacks merit. I abide with the cost as assessed in the judgment of my learned brother.
>
Appearances
Dr. A.A. OlawoyinFor Appellant
AND
G.B. sanusi, Esq. with Y.A. Iliasu (Ms)For Respondent
