- V BREUGHEL & ORS v. MONDIVEST LIMITED
(2018)LCN/11762(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of June, 2018
CA/L/394/2016
RATIO
THE ESSENCE OF CONSENT IN AN AGENCY RELATIONSHIP
In an agency contract there must be a positive, clear and unequivocal consent from the principal to the agent per YARGATA BYENCHIT NIMPAR, J.C.A.
A TORTUOUS ACT
A tortuous act is defined as a civic wrong for which the remedy is common law action for unliquidated damages per YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
- M. V BREUGHEL
(‘‘Sister vessel to the M.V. Congo River’’)
2. THE MASTER OF THE ‘‘M.V. BREUGHEL’’
3. DREDGING ENVIRONMENT AND MARINE ENGINEERING NV. Appellant(s)
AND
MONDIVEST LTD Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Ruling of the Federal High Court sitting in Lagos and delivered on the 21st March, 2016 by HON. JUSTICE DAGAT wherein the Court below dismissed the application brought by the appellant seeking to strike out the claim of the Respondent for failing to disclose a cause of action. The appellant dissatisfied with the said ruling filed a Notice of Appeal dated 28th day of March, 2016 filed on the 4/4/2016 and deemed on the 3/5/2018 setting out 3 grounds of Appeal.
The respondent instituted an action in rem against the appellants for acts of negligence and sought the following reliefs:
i. The sum of N700,000,000 (Seven Hundred Million Naira) for alleged damage to the Appellant’s property and economic losses resulting from the loss of its rental income on its property resulting from the alleged negligent acts of the M.V. Breughel and its sister vessel the Congo River;
ii. The sum of N3,000,000,000 (Three Billion Naira) being general damages for the alteration to Kuramo waters coastline, long term devaluation of the Claimant’s property and long-term exposure of the Claimant’s property and foundations. Of property to ocean swells and sedimentary erosions;
iii. Interest on the above-mentioned sums;
iv. A formal undertaking from the Defendants to restore the Kuramo waters to its original condition followed by a time frame/modality of implementation for the restoration of Kuramo waters to its former longitude and latitude;
v. Costs of the action.
The Appellants in their statement of defense pleaded some points of law and applied to have the Court set them down for determination before commencement of trial. The appellants ‘application dated the 9th December, 2015 sought the following orders:
i. AN ORDER setting down for hearing the points of law raised in paragraph 22 of the applicants ‘statement of defense dated 20th November 2015.
ii. AN ORDER dismissing the suit in its entirety for want of jurisdiction.
iii. AND FOR SUCH further or order(s) as this Honorable Court may deem fit to make in the circumstances.
The application was opposed by the Respondent herein and upon due consideration, the Court below dismissed the application and held that the Respondent has a locus standi to file the claim consequently, a cause of action established. Aggrieved by the said decision, the Appellants brought this appeal.
The Appellants Brief is settled by Kelechukwu K. Okwujiako Esq., led by Funke Agbor SAN and supported by other counsel on the team. It is dated 4th day of July, 2016 and filed on the 8th July, 2010 but deemed on the 3rd May, 2018. It set out 2 issues for determination as follows:
1. Whether the trial Court was right when it held that the Respondent has the locus standi to claim damages in the sum of N3,000,000,000 (Three Billion Naira) for the alleged alteration of the Kuramo Waters coastline an undertaking from the Appellants to restore the same ‘
2. Whether the learned trial Court was right when he held that the lower Court has jurisdiction to hear and determine the Respondent’ssuit notwithstanding that the Appellants were agents of a disclosed principal and that the Respondent has disclosed no cause of action against the Appellants ‘
The Respondent’sbrief was settled by Anthony Nkadi Esq., it is dated 22nd May, 2017, filed on the 23rd May, 2017 and deemed on the 3rd May, 2018. It formulated 2 issues for determination namely:
i. Whether having regard to the Respondent’sstatement of claim, the trial Court was right in holding that the Respondent had a locus standi to commence the substantive suit against the Appellants and seek the several reliefs in its statement of claim ‘ OR
Whether the claim for general damages in Respondent’s third relief for alteration to Kuramo Waters coastline; long term devaluation of Respondent’s property; and long term exposure of persons, property and foundations of Respondent’s property to ocean swells, and sedimentary erosions etc robs it of locus standi to institute a claim for damages to its property amongst others ‘
ii. Whether having regard to the nature of the suit (being an admiralty action in rem) and the statement of claim, the trial Court was right in holding (at an interlocutory stage) that the Respondent had established a reasonable cause of action against the Appellants and that the Court had jurisdiction to determine the claim of the Respondent notwithstanding the Appellants alleged defence of agents of a disclosed principal ‘
The Respondent in its brief gave a notice of Preliminary objection contending that the grounds of appeal being grounds of mixed law and fact arising from an interlocutory decision, requires that leave be first sought and obtained before the appeal is heard and appellants did not seek leave as required by the Court of Appeal Act. However, before the hearing of the appeal, the appellants sought and obtained leave of Court, thus the preliminary objection became and was abandoned.
After a careful consideration of the notice of appeal, the record of Appeal and the Briefs of Arguments of the parties in this appeal, I consider the issues distilled by the appellants as concise and succinct for the complete determination of this appeal. I therefore adopt the issues put forward by the appellants for determination in this appeal.
ISSUE ONE
Whether the trial Court was right when it held that the Respondent has the locus standi to claim damages in the sum of N3,000,000,000 (Three Billion Naira) for the alleged alteration of the Kuramo Waters coastline and an undertaking from the Appellants to restore the same ‘
SUMMARIES
‘The Appellant in contending that the appellant does not have the locus standi submitted that it is not the owner of Kuramo Waters and that divest the Court of jurisdiction, relying on PAM V MOHAMMED (2008) 16 NWLR (Pt. 1112) 1 SC; DAILY TIMES (NIG) LIMITED V DSV LIMITED (2014) 5 NWLR (PT. 1400) 327 at 359. Learned counsel looked at the two heads of the claim and contended that since the Respondent does not own Kuramo waters, it cannot ask that it be restored in addition to the claim for damages, therefore the claim is ambitious. Appellant considered the concept of locus standi and came to the conclusion that even if the claim has merit, if locus standi is lacking, then the Court would lack jurisdiction and the suit must be struck out, citing OGUNMOKUN V MILITARY ADMINISTRATOR OF OSUN STATE (1999) 3 NWLR (Pt. 594) 261 at 286; DAILY TIMES (NIG) PLC V. DSV LTD (2014) 5 NWLR (Pt. 1400) 327 at 359; A.G. AKWA IBOM V ESSIEN (2004) 7 NWLR (Pt. 872) 288; THOMAS V OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669. Appellant admit that the Respondent is entitled to seek redress for alleged damage done to property but not on alteration to Kuramo waters coastline because it is not averred that appellant owns it.
Furthermore, appellants contended that the statement of claim lacks adequate pleading and does not show sufficient interest and the requirement for sufficient interest to be disclosed is to keep interlopers and busy bodies away from clogging the Courts with unnecessary claims, relied on DARAMOLA V A.G.ONDO STATE (2000) 7 NWLR (Pt. 665) 440; that to qualify, the interest must go beyond public interest, citing AWARA V ITAM (2009) 17 NWLR (Pt. 1170) 337; ADESANYA V PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (NO. 2) (1981) 2 SCNLR 358; THOMAS V OLUFOSOYE (supra); UMAR V W.G.G.(NIG) LIMITED (2007) 7 NWLR (Pt. 1032) 117 (CA); AJAGUNGBADE III V LANIYI (1999) 13 NWLR (Pt. 633) 92 at 111; BADEJO V FEDERAL MINISTRY OF EDUCATION (1999) 13 NWLR (Pt. 143)
The Appellants argued that Section 6(6) of the 1999 Constitution refers to a definite person who whose rights are breached by the use of the word ‘that ‘ and a claimant must therefore show how he becomes that person by a tangible interest, citing ELEGUSHI V OSENI (2005) 14 NWLR (Pt. 945) 348. Relying on A.G. ANAMBRA V A.G. FEDERATION (2007) 12 NWLR (Pt. 1047) 4 NWLR 93; OLORIODE V OYEBI (1984) 1 SCLNR 390; EGOLUM V OBASANJO (1999) 4 NWLR (Pt. 611) 423; they submitted that the coastline is owned by the Federal Government and not the Respondent. Arguing further, Appellants argued that assuming the Respondent has any interest in Kuramo waters, then a private interest must be subject to overriding public interest because his interest is limited to the certificate of occupancy which he holds. And that the Eko Atlantic project has multiple benefits to the public which overrides the interest of the Respondent.
The Respondent in response agreed with the Court below in affirming its locus standi as disclosed by the statement of claim and reliefs stated therein. It identified the core of the objection which is against prayers (iii) and (iv) of the reliefs, it contended that the Appellants are cherry picking since the objection is not on the entire claim but a portion of it because the entire pleadings must be taken together, relied on ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR V RAYMOND EKWENEM (2009) 13 NWLR (Pt. 1158) 410 and CHIEF D.M. OKOCHI & ORS v. CHIEF AMUKALI ANIMKWOI & ORS (2003) 18 NWLR (Pt. 851) 1 at 24 and that it is solely the statement of claim that a Court must consider and not any other extraneous process in determining locus standi. Arguing further, the Respondent submitted that locus standi could be a matter of law or of fact; of law when the law stipulates who can sue and of fact where the category of persons to sue is not limited by law, citing ALBIN CONSTRUCTION V RAO INV AND PROPERTIES LTD (1992) 1 NWLR (PT. 219) 583.
The Respondent submitted that it established sufficient interest in its pleadings and the test stated in ODELEYE V ADEPEGBA (2001) 5 NWLR (PT. 706) 330. And on the reliefs, the Respondent contended that they arose from damage done to its natural protection which has been eroded by acts of the Appellants. The Respondent submitted that the Appellants misconstrued its claim for the restoration of the coastline, it argued that it was its natural protection and that it was seeking restore and therefore it has locus standi.
On jurisdiction, the respondent reiterated the settled preconditions for jurisdiction and that being an admiralty action in rem the Court has jurisdiction and there is no feature in the case which prevents it from exercising jurisdiction, it restated the definition of locus standi to urge the Court to find for the respondent under this issue.
RESOLUTION
The Locus standi of the Respondent was challenged solely on the ground that it does not own the Kuramo shoreline and therefore cannot also claim damages for whatever damage is cause to the shoreline by the Appellant. The Court below found otherwise and the appellant contends that the Court below erred in holding that the Respondent has locus standi. Locus standi simply is the legal right of a party to an action to be heard in litigation before a Court of law or Tribunal. The term entails the legal capacity of instituting or commencing an action in a competent Court of law or Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. Locus standi is a principle of law that has attracted judicial attention in a plethora of cases, the apex Court in the case of B.B. APUGO V OHMB (2016) LPELR-40598(SC) restated the guiding principles in the following way:
“In Pacers Multi Dynamics Ltd v. M.V. Dancing Sister (2012) 1 SC (Pt. 1) p.75, I explained locus standi as follows: I said: “A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. There are two tests for determining if a person has locus standi. They are: 1. The action must be justiciable, and 2. There must be a dispute between the parties. In applying the test, a liberal attitude must be adopted. Senator Adesanya v. The President of Nigeria (1981) 5 SC p.112 lays down the rule for locus standi in civil cases, while Fawehinmi v. Akilu 1987 12 SC p.99 lays down the far more liberal rule for locus standi in criminal cases… To have locus standi, the plaintiff’s statement of claim must disclose sufficient legal interest, and show how such interest arose in the subject matter of the action.” Per RHODES-VIVOUR, J.S.C
In considering the interest of the plaintiff, the statement of claim is the document to consider, the claim must disclose the claimant’s sufficient interest and the legal right he seeks to protect. There are two prongs of the claim of the Respondent before the Court below as disclosed in the Amended statement of claim and this is also admitted by the parties. Looking at the facts in issue between the parties in the statement of claim, the two legs of the claim are:
i. The sum of N700 Million Naira (Seven Hundred Million Naira) only being the Appellants damage to its property and economic losses resulting from the loss of the rental income on its property resulting from the negligent acts of the 1st Appellant and its sister vessel.
ii. The sum of N3 Billion Naira (Three Billion Naira) only being general damages for the alteration to Kuramo Waters coastline; long term devaluation of respondent’s property and long term exposure of persons, property and foundation of the respondent’s property to ocean swells.
And
The restoration of the Kuramo waters to its original state (which was a Natural buffer and protection to the Respondent from the direct perils of the open sea).
The Appellant argued that the portion of the Amended claim quoted above does not show any interest and is hypothetical not worth protecting by a Court of law. The Court below in its ruling dismissing the preliminary objection by the appellant held thus:
‘The summary of the plaintiff’sclaim is that the plaintiff is the owner of a fully developed coastline of 10 fully serviced flats at Southport Harbour, Victoria Island Annex and that between 2012-2014, the Defendants sister vessel, the M.V. CONGO RIVER in furtherance of the Eko Atlantic Project caused damage to the Plaintiff’s Coastline which has remained unremedied to date. That the 1st and 2nd defendants have continued these acts of further dredging on the Kuramo waters since June 2015 had caused further destruction to the natural sedimentary formation and integrity of the Kuramo waters Coastline and the Plaintiffs property at Southport Harbour Victoria Island Annex thereby destroying, undermining and permanently devaluing the Plaintiff’s property. These facts to my mind disclose sufficient interest in the action by the Plaintiff as it tends to show the Plaintiff’s civil rights and obligations have been infringed on as the acts of continuous dredging by the 1st and 2nd defendants as alleged has continued to affect Plaintiff’s property. ‘ See pages 1352-1353 of the additional Record. ‘
Above is a summary of the claim of the Respondent which the Appellant contends does not give the Respondent locus standi. Locus standi is not dependent on the claim succeeding at the end of trial but largely on the facts averred in the statement of claim which must disclose an interest which deserves to be protected by the Court determining the claim on the merits. The Appellants admits that the Respondent can seek redress for damage to its property but argues that in this case it cannot claim to own the shore line and therefore it lacks the locus standi. The simple question to ask is whether a claimant must own the path or route taken by the peril that caused the damage to his property before seeking relief ‘ Once there is a nexus between the act and the damage caused, the owner of the property damaged has sufficient interest. The damage is allegedly caused by the Appellants, they are known and the property allegedly damaged is owned by the Respondent, this is not contested by the Appellants. The argument of the appellants is premised on the fact that the Respondent also claims for the restoration of the coastline to protect his property.
It is not the requirement of the law on Locus standi for a claimant to be the owner of the property. The law demands sufficient interest and sufficient interest could arise even when ownership is not proved by a claimant.
Furthermore, the fact that some amount is claimed as damages does not also mean that the said claim would automatically succeed. I do not agree that the Respondent is a busy body or interloper, once the statement of claim has disclosed sufficient interest deserving of determination by the Court, the matter must proceed to hearing. Determination or adjudication is not synonymous with success for the claimant (Respondent). It simply means giving a claimant a right to be heard when his right is under threat or has been affected by the actions of another, the Court should therefore determine the claim on the merit. That is also a constitutional right as guaranteed by our Constitution. At this stage, the Court cannot go outside what locus standi represents and the liberal approach to it by Court would definitely swing in favour of the Respondent, that is now the norm in determining locus standi. The simple issue is justifiability of the claim and sufficiency of interest in the litigation and this was settled by the apex Court in the case of ABRAHAM ADESANYA V PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (1981) LPELR-147 (SC) which said:
“It is a common ground in all the jurisdictions of the common law countries that the claimant must have some justifiable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. In most cases the area of dispute, and some time, of conflicting decisions has been whether or not on particular facts and situation the claimant has sufficient interest or injury to accord him a hearing. In the final analysis, whether a claimant has sufficient justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case: Bengal Immunity Co. v. State of Bihar (1955) 2 S. C.R. 602; Forthingham v. Mellon (1925) 262 U. S. 447. For India and America respectively. Even in the Canadian case of Torson v. Attorney General of Canada (1974) 1 N.R. 2254, and the Australian case of McKinlay v. Commonwealth (1975) 135 C.L.R. cited by Chief Fawehinmi, in which liberal views on standing were expressed, the issue of sufficiency of interest was the foundation upon which the decisions in both cases were reached.” Per BELLO,J.S.C
The Appellant introduced additional test to the issue of sufficient interest and contended that it must be real and tangible relying on ELEGUSHI V OSENI (2005) 14 NWLR (Pt. 945) 348 at 375. The facts of the case cited by the Appellants does not have same facts to the case in hand. Of course, if one is not the amongst those affected by the act of the other, he cannot have the locus to sue. The Respondent copiously averred that it owns the land affected by the acts of the Appellants so his case is quite different from a person who is not affected by compulsory acquisition who cannot sue on such acquisition. The authority is distinguishable and therefore not applicable here.
Another angle the Appellants approached the issue is that the Respondent does not possess the aggregate of enforceable rights in the matter because the coastline is under the control and management of the Federal Government and as such he cannot have the locus standi to sue and claim damages for damage done to coast line, citing A.G. ANAMBRA V A.G FEDERATION (2007) 12 NWLR (Pt. 1047) 4 at 93-94 and A. G FEDERATION V A.G. ABIA (2002) 6 NWLR (Pt. 764) 542. I candidly believe that the issue of whether the Respondent who does not own the shoreline can legitimately claim damages and restoration of shoreline will depend on how extensive the damage is and since it crossed the shoreline into the property of the respondent, he can sue on such damage caused by the negligence of the Appellants. The Respondent did did not claim ownership of the entire shoreline but where its property stands. Since the ownership of the entire coastline or shoreline is not part of the statement of claim from where the legal standing of the claimant can be determined, it would amount to introducing extraneous issues to consider the question and would also be out of the question here. Delving into those areas would mean extending and altering the set down rule on how to determine locus standi. I think those issues form the defence of the Appellants to the claim. How to determine locus standi locus is limited to the Amended statement of claim, see EBONGO V UWEMEDIMO (1995) 5 NWLR (Pt. 411) 22 and DOUGLAS V SHELL PETROLEUM DEV CO. LTD (1999) 2 NWLR (Pt. 591) 466.
The Respondent cannot be called upon to prove what it did not assert in the positive. If after due trial, the claim is not substantiated, then it will fail and that ends the issue.
Assuming the requirement for locus standi extends to the level where it must be real and tangible interest, would the owner of a property by the shoreline which is being destroyed by acts of the Appellants not be real and tangible interest ‘ Structures housing the serviced flats are alleged to be affected by the tidal waves as a result of the Appellants ‘ activities and the Respondent claim ownership of those serviced apartments. What can be more real than that ‘ The Respondent pleaded his title and registration particulars and the issue of not owning the shoreline/coastline is irrelevant at this stage because damage from the Appellants activities extended to the property of the Respondent and it has the locus standi to seek to protect the said property. The damage alleged extended beyond the shoreline to the property of the Respondent. So even if the standard were the one advocated by the Appellants, I would still agree with the trial judge that the Respondent has locus standi to sue.
The Appellants arguments on Eko Atlantic City being a Public Private Partnership project and its noble objectives are issues to be considered during trial and at judgment stage. The principle of shared interest in a subject matter which would defeat the Respondent’sinterest are all issues for trial. The distinguishing feature between the holding in SEHINDEMI V GOVERNOR OF LAGOS STATE (2006) 10 NWLR (Pt. 987) 1 at 26 and this case is that the Respondent’sclaim for damage done to his property is not a general interest but peculiar to him and therefore raises his level of interest above that of the general public, if there is a public interest that can water down the Respondent’sinterest. This Court cannot pronounce on them here because doing so would jeopardize and poison the mind of the trial judge in determining the main claim. The issue is simply that of locus standi.
‘The Appellant is merely being technical by stretching the principle of locus standi beyond acceptable limits and bringing in extraneous matters into the consideration and that cannot be allowed; doing so would becloud and distort the definition of locus standi and as a result defeat the ends of justice. The defence of the appellants that the Respondent does not own the shoreline on which the property stands cannot be considered at this stage, it is premature.
I however agree that the issue of locus standi is a jurisdictional issue and where a party lacks the standing to sue, the Court will also lack jurisdiction to hear the matter, the trial Court was right to my mind as the Respondent cannot be shut out of having the claim determined, where there is a damage, there should be a remedy except if the claimant fails to prove his claim. The Court is a Court of equity and justice.
On issue one, I find for the Respondent.
ISSUE TWO
Whether the learned trial Court was right when he held that the lower Court has jurisdiction to hear and determine the Respondent’s suit notwithstanding that the Appellants were agents of a disclosed principal and that the Respondent has disclosed no cause of action against the Appellants ‘
The Appellants challenged the finding of the trial Court the Respondent ‘ statement of claim disclosed a cause of action contending that an action in rem is a mere technical or procedural tool to compel the owner of the ship to enter appearance and post bail, citing RHEIN MASS UND SEE GMBH V RIVVAY LINES LIMITED (1998) 5 NWLR (Pt. 549) 265 and the Admiralty Jurisdiction Act particularly Section 2 of the Act to submit that an action in rem cannot be competent until ownership is established. That the use of the word shall in the Act implies imperativeness, relying on AGIP NIG. LTD V AGIP INT. & ORS (2010) 5 NWLR (Pt. 1187) 348; ODEDO V INEC (2008) 17 NWLR (Pt. 117) 554 and BAMAIYI V AGF (2001) 12 NWLR (Pt. 727) 468.
Appellants further argued that a ship cannot be separated from its owner for the purposes of an action in remand since the Respondent in its application for the arrest of the ship linked the ship to its owner, the ship cannot be sued alone as the necessary co defendant must be the owner. And further submitted that the suit was incompetent without the owner, referred to the book by Loius Mbanefo, SAN: Nigerian Shipping Practice and Procedure, Lomanc Books, Lagos 2012 page 117; Appellant quoted copiously from the following cases: THE PARLIAMENT BELGE (1880) LR 5 PD 197 at 217; THE CRISTINA (1938) AC 485 at 504; THE BROADMAYNE (1916) 64 (CA); THE INDIAN GRACE (NO.2) (1998) I LLOYD’s REPORT 1 @ 10 and THE MACIE RATAJ (1995) I LLOYD’sREP.302 to urge the Court to hold that the ship and the owner are like Siamese twins and when a ship is arrested the owner is given a choice, appear to defend or stay away and lose your ship. That the case relied on by the trial Court are inapplicable because the issue herein is that in suing the ship, the Respondent has sued the owner (the 3rd Appellant). That the case of CHIEF REGISTRAR HIGH COURT OF LAGOS STATE V VAMOS NAVIGATION LIMITED (1976) ALL NLR 10 relied on by the Court below supports the position taken by the appellant that an action in rem is merely to compel the owner of the ship to defend his property. And that if so, the 3rd Appellant being agent of a principal in the land reclamation, it is not liable. Appellants went to a great length to argue on the liability of an agent of a disclosed principal to contend that the Court lacks jurisdiction because appellants are agents of a disclosed principal. That the claim is unsustainable, without cause of action and should be disposed off because the
Court below lacks jurisdiction. They finally urged the Court to allow the appeal.
On issue two, the Respondent contended that the long treatise on action in rem being an action against the owners only and not the vessel is an attempt to wriggle out of the reality of settled admiralty law and practice as an action in rem can be commenced and concluded against the Vessel as the instrument of wrong doing, relied on MV MUSTAPHA V AFRO ASIAN IMPEX LTD (2002) 14 NWLR (Pt. 787) 395; RHEIN MASS UND SEE GMBH V RIVWAY LINES LTD (1998) 5 NWLR (Pt. 549) 265 at 281; ANCHOR V THE OWNERS OF THE SHIP ELENI 1 F.S.C 14 and THE OWNERS OF THE MV ‘MSC AGATA ‘ & ANOR V NESTLE NIGERIA PLC & ANOR (2014) 1 NWLR (Pt. 1388) 270 at 296. Respondent further argued that the action is properly constituted under the Admiralty Jurisdiction Act 1991 as the claim is for damage done by a ship whether by collision or otherwise; that the cause of action is against the vessel and the joinder of the 3rd Appellant cannot translate the claim to one in personam or rob the Court of jurisdiction. And that the argument that being agents of a disclosed principal has no place in this appeal and that could be a defence and cannot defeat cause of action, citing MR. OWEN ALALE & ORS V MR. OKWUOLU (2001) 7 NWLR (PT. 711) AT 131. In conclusion, the respondent urged the Court to dismiss the appeal.
In reply on points of law, the appellants rehash most of their arguments in the Appellants Brief highlighted earlier in this judgment.
RESOLUTION
The main issue under issue two is fundamentally questioning the propriety of suing the Appellants when they are agents of a disclosed principal. The claim before the trial Court is an action in rem for damages caused by a ship, the question here is whether there was a cause of action in view of the fact that Appellants are agents of a disclosed principal. An action in rem was defined in the case of BRONWEN ENERGY TRADING LTD V OAN OVERSEAS AGENCY NIGERIA LTD & ORS (2014) LPELR-24111(CA) where I said thus:
‘‘An action in rem was defined in the case of CHIEF REGISTRAR, HIGH COURT OF LAGOS v. VAMOS NAVIGATION LTD (1976) ALL NLR 10 as follows: ‘An action in rem in admiralty is primarily a proceeding against a ship or res by way of arrest and is indirectly a process compelling the appearance of the owner of the ship to defend his property thereby impleading him to answer to the judgment of the Court to the extent of his interest in the property.” See also PACERS MULTI – DYNAMIC LTD V. THE M. V. “DANCING SISTER” & ANOR (2012) 4 NWLR (PT. 1289) 169 AT 187 where the Supreme Court held thus: “An admiralty action in rem is a proceeding against a ship, the res, where the ship is arrested. By the arrest, the owner of the ship is compelled to either appearance and defend the ship. The owner is enjoined to answer to the judgment of the Court to the extent of his interest in the property.”
In simple terms an action in rem is a proceeding against a ship, the res, where the ship is arrested. By the arrest the owner of the ship is compelled to enter appearance and defend the ship. The owner is enjoined to answer to the judgment of the Court to extent of his interest in the property. A piece of legal machinery directed against a ship alleged to have been the instrument of wrong doing in cases. A judgment in rem is a good judgment against the whole world. It actually means the ship is the means by which the wrong doer (the owner of the ship) committed the wrong to the claimant. It also is the means of bringing the owner to Court. It is accepted that an action in rem is procedural. The ship owner may take part in the proceedings to defend his property. On the other hand, an action in personam is directed against the person at fault and is dependent entirely on the claimant’s ability to serve the defendant with the summons in connection with the claim particularly where the defendant is from a different jurisdiction. It is also accepted that the same cause of action can give rise to both actions depending on which action the plaintiff initiates and having regard to the procedural difficulties involved and the choice of the claimant.
The Court below held that there a cause of action, a decision the appellants dispute. A cause of action has received judicial attention so much that it should no longer be a disputed issue as parties should be able to decipher without much a do. A cause of action may defy a precise definition but it has come to acquire an acceptable description which is considered as its definition. The apex Court in the case of ATTORNEY GENERAL OF FEDERATION V ATTORNEY OF ABIA STATE (2001) LPELR-64862 (SC) gave a simple definition of a cause of action in the following words:
‘It it trite that what constitutes a cause of action is the entire set of circumstances giving rise to an enforceable claim. ‘
It can also be said to be every fact that it would be necessary for the claimant to prove, if traversed, in order to support his right to the judgment of the Court. It includes all those things necessary to give a right of action. All the necessary facts must have been clearly averred in the Amended statement of claim. There should be no need to go outside or seek support outside the statement of claim in order to find a cause of action. The apex Court gave a comprehensive definition in the case of ATTORNEY GENERAL OF LAGOS STATE V EKO HOTELS LIMITED & ANOR (2006) LPELR-3161(SC) thus:
‘The question as to what a cause of action is and when it is said to have accrued have long been settled by the Court and it is has been held that a cause of action consist of every fact which it would be necessary to prove, if traversed in his claim for judgment and the accrual of the cause of action is the event were a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. It is very clear from a community reading of decisions of the Courts on the issue that cause of action always deals with events in the immediate past, not in the future. ‘Per ONNOGHEN, JSC (as he then was) now CJN.
It is also settled that there are two components of the the term cause of action and these are:
i. The wrong act of the defendant which give the Plaintiff his cause of complaint;
ii. Consequent damage
See MESSR N.V. SCHEEP V M.V. ‘S. ARAZ ‘ (2000) 12 SC (Pt. 1) 164.
The fundamental question to ask here is whether the factual situation presented by the Respondent in the Amended statement settles the two elements and give the Respondent a right to some judicial relief ‘ Paragraph 6-16 of the Amended Statement of claim aver facts in support of the claim and establishes a cause of action. The Respondent filed an action in rem against the Appellants claiming damages for negligent acts which cause damage to Respondent’s property of some serviced apartments and which has further exposed it to tidal waves with a likely event of completely losing the property as the coastline has been eroded by the activities of the Appellants. The cause of the damage is dredging activities of the 1st Appellant and its sister ship, it therefore fits into an admiralty action as stipulated in Section 2(3) of the Admiralty Jurisdiction Act which states thus:
‘(3) A reference in this Act to a general maritime claim is a reference to-
(a) A claim for damage done by a ship, whether by collision or otherwise. ‘
The claim perfectly fits into the definition above and as settled by several authorities, therefore, there is a cause of action. The aggregate of the facts are that the activities of the appellants caused and continues to cause damage to the property of the Respondent. Can the Respondent approach the Court to seek redress ‘I think so. Can the facts fit into the definition of a cause of action ‘I again think so. Cause of action once again can only be distilled from the statement of claim and not any extraneous processes, see REBOLD INDUSTRIES LIMITD V MRS OLUBUKOLA MAGREOLA & ORS (2015) LPELR-24612 (SC)
where Okoro, JSC gave the conditions that must be present to show the existence of a cause of action, he said thus:
‘Every appeal or suit filed before the Court is based and anchored on its peculiar facts and the reliefs sought are not made in vacuum but relate to an derive from the raw facts of the case. The Courts in their task of determining the rights and obligations of parties are usually guided by the facts adduced before the Court and the law applicable thereto. Before a party files a matter in Court, he must possess what is called a cause of action which usually is against some person, persons or institutions. That is to say, a plaintiff must show by his pleadings that he has a cause of action maintainable in a Court of law against the defendant. He cannot sue just anybody. It must be someone who has wronged him one way or the other. You cannot sue someone who has not done you any wrong. ‘
‘
It is settled that a cause of action is determined from the statement of claim filed by the Respondent, the burden of proof is what comes much later while at the stage of determining a cause of action, it is merely the averments which must show the wrong done by the defendant.
The general rule is that a party whose statement of claim discloses a cause of action should be allowed to ventilate his grievance in Court, see AKILU V FAWEHINMI (NO. 2) (1989) LPELR-339(SC), it held:
“I think it goes without saying that a Plaintiff whose statement of claim discloses a cause of action should be allowed to have his case tried, unless it can be shown that his conduct in bringing the action is clearly, frivolous, vexatious or otherwise an abuse of the process of the Court.”
The Appellants digressed into a lengthy discourse dovetailing on their submission that an action in rem against the ship (1st Appellant) is indeed an action against the owner (3rd Appellant) and therefore, the 3rd appellant is an agent of a disclosed principal under a contract to reclaim land and consequently, not liable. The issue is non-disclosure of a cause of action and strictly speaking it can only be discovered in the statement of claim. The twist introduced here is that appellants are agents of a disclosed principal. Before going into that, I agree with the Appellant that an action in rem is technically an action against the owner, and I explained that earlier in this judgment.
Agent or agency was defined in the case of OSIGWE V PSPLS MANAGEMENT CONSORTIUM LTD & ORS (2009) LPELR-2807 (SC) thus:
“…who is an Agent ‘ At page 64 of Black’s Law Dictionary, 7th Edition, an Agent is defined as “One who is authorised to act for or in place of another, a representative”. The word “agent” or “agency” it is stated therein, denotes one who acts, a doer, etc. that accomplishes a thing or things. The agent normally binds his principal and certainly not himself by the contract he makes. Indeed, this Court, in the case of Dr. Tunde Bamgboye v. University of llorin & Anor (1999) 10 NWLR (Pt. 622) 290 @ 329 also cited in the 1st, – 3rd, 5th – 8th and 10th -14th Respondents’ Brief (it is also reported in (1999) 6 SCNJ 295) – per Onu, JSC, the definition of an agent in the said Black’s Law Dictionary (Edition not stated), was stated thus: “A person authorized by another to act for him, one entrusted with another’s business … ” One authorized to transact all business of principal (sic), all of principal business of some particular kind, or all business of some particular place, etc.”
His Lordship, then stated inter alia, as follows: “An agent, in my view, means more or less the same thing as a delegate.” Per OGBUAGU, J.S.C
Flowing from above, the meaning of agency was given in the case of JAMES V MID-MOTORS (NIG) CO. (1978) LPELR-1593(SC) thus:
“… but in law, the word agency is used to connote the relation which exists where one person has an authority or capacity to create legal relations between a person occupying the position of principal and third parties”; and the relation (i.e. of agency) also arises “whenever one person called, the agent has authority to act on behalf of another called the principal and consents (expressly or by implication) so to act” – See Halsbury Laws of England Vol. 1, 4th Ed. Para. 701 at p. 418; also International Harvester Co. of Australia Pty Ltd. v. Carrigans Hazeldene Pastoral Co. (1958) 100 CLR 644 at 652 (Aust. High Court).
Agency connotes a relationship that exists where one has the authority or capacity to create legal relationship between a principal and a third party, and the reality of its existence depends on the true nature of the agreement or the circumstances of the relationship between the principal and alleged agent.
34
In the case of SDV (NIG) LTD V OJO & ANOR (2016) LPELR-40323, I had cause to pronounce on the need for express or implied consent of the principal in agency relationship, I held thus:
“In an agency contract there must be a positive, clear and unequivocal consent from the principal to the agent, see FARQUAHASON BROS V. KING & CO (1902) AC 325. None exist here. I also rely on the judgment of this Court in the case of MIKANO V. EHUMADU (2013) 1 CLRN 83 in which there was direct contact and offer in writing which was rejected. Yet, the Court held that agency did not exist. If there was no agency there then, the situation here is not any better. There was no contact, no authorization, no ratification and instruction. How then can the 1st Respondent impose himself as agent when the principal does not know him and had not related with him in any way. Contract is entered into with clear terms mutually agreed upon by the parties; it is not wishful thinking. Parties must operate from an accepted premise and consensus of the mind.”
The contention of the appellants is that they have a contract to dredge pursuant to a contract with the party they call as principal. The Respondent has no contractual relationship with the Appellants, the claim is alleging negligent conduct. I am at a loss as to what agency has got to do with the cause of action in this particular case ‘ As observed and reiterated severally above, cause of action is a function of the statement of claim. Agency which is dependent on an agreement between the agent and principal cannot take root in the statement of claim so as to affect erode the cause of action as filed by the Respondent. It therefore has no effect on cause of action. One can ask if an agent needs authorization to act negligently ‘
The contention that appellants are agents of a disclosed principal and therefore the Court below lacks the jurisdiction to determine the Respondent’s suit is preposterous. The appellants being agents of a disclosed principal can only answer to the claim at judgment stage because it is settled that on questions of jurisdiction it is the processes of the claimant that is looked at and not a defendant’s answer to the claim, see AG FEDERATION V AG ABIA STATE & ORS (2001) LPELR-64862(SC) where the apex
Court on what determines jurisdiction said:
“To determine whether such a dispute as envisaged in Section 232(1) exists, one has to examine the Statement of Claim filed by the plaintiff as a whole. See Izenkwe & Ors v. Nwadozie 14 WACA 361 cited and relied on by the Honourable Attorney-General of the Federation, particularly at page 363 where the Court stated the guiding principle as follows:- “In the first place it is a fundamental principle that jurisdiction is determined by the plaintiff’s demand and not by a defendant’s answer which, as in this case, only disputes the existence of the claim, but does not alter or affects its nature. In other words, ordinarily it is the claim and not the defence which is to be looked at to determine the jurisdiction.” In other words, the statement must be read and considered as a whole in order to decide whether an arguable cause of action is disclosed.”
And furthermore, the fact of agency even if established can only be available as a defence and not to defeat a cause of action, see MR OWEN ALALE & ORS V MR. OKWUOLU (2001) 7 NWLR Pt. 711) 119 at 131 where this Court held thus:
‘In any case, his claim that he was acting merely as agent of a so disclosed principal may be relevant only towards absolving him of any liability in the Respondent’s claim after hearing and determination but certainly not in removing him from being a necessary or proper party along with others whose liability may ultimately be determined by the Court. ‘
‘
In determining cause of action from the statement of claim, the nature of the offensive act must be also considered, in this case the cause of action is damage done to Respondent’s property as a result of the dredging near the coastline and undoubtedly, the claim is grounded in tort and against the party that caused the damage. A tortuous act is defined as a civic wrong for which the remedy is common law action for unliquidated damages. Notwithstanding the peculiarity here that it came through a maritime claim the damage having been caused by a ship, the claim is rooted in tort. Am therefore at a loss as to how the issue of agent of a disclosed principal could come into the question. There is no relationship whatsoever between the Respondent and the Appellants herein.
No contract that appellants can say they represented a disclosed principal in the issue which is subject of litigation. The appellants are independent contractors for project. So how can the Appellants expect that being agents of a disclosed principal, they can raise a jurisdictional issue in a claim in tort ‘ The appellants are not even raising the issue of proper parties in which they could aver that there are other necessary parties which have not been joined. Even with that, non joinder of parties does not defeat an action.
The claim of the Respondent is rooted in tort and thus gives the Respondent the option of picking his defendant to the claim that is assuming the issue of the Appellants as agents of a disclosed principal is relevant. In that case, the respondent is at liberty to sue either the agent or principal or both, see the case of BEKS KIMSE NIGERIA LIMITED V MR. EBIOTU AFRICA & ANOR (2015) LPELR- 24436(CA) which held:
‘The law is clear on the premise that an agent who commits a tort on behalf of his political and the principal are joint tortfeasors and may be sued jointly and severally. ‘ See also DUMEZ (NIG) LTD V UKPENI (1991) 4 NWLR (Pt. 188) 734
The Court in the case of ALHAJI LAI MOHAMMED V CHIEF AFE BABALOLA, SAN (2011) LPELR- 8973(CA) went as far as to hold that the agent and principal being joint tortfeasors, a plaintiff has the liberty to choose his victim. He may decide to either sue the principal and agent separately or both of them jointly and failure to bring in all necessary parties will not defeat the action. That which ever option he picks, it will be for him to prove his claim and the defendant to show he is not liable.
Flowing from above, the issue is resolved against the Appellants. There is no contract between the Appellants and the Respondent and therefore the question of agent of a disclosed principal is irrelevant here. There is a cause of action and the respondent has locus standi to bring this action. The appeal is therefore unmeritorious and is hereby dismissed. The Ruling of the trial Court delivered on the 21st March, 2016 is hereby affirmed.
Cost of N300,000 in favour of the Respondent.
MOHAMMED LAWAL GARBA, J.C.A.: I completely agree with my learned brother Yargata Byenchit Nimpar, JCA in the lead judgement, a draft of which I read before now, that the appeal is devoid of any merit and should be dismissed.
For reasons set out elaborately in the lead judgement, which I adopt, I too dismiss the appeal and make the same order for costs in favour of the Respondent as contained in the lead judgement.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of reading in draft the lucid judgment prepared by my learned brother, Yargata Byenchit Nimpar, J.C.A., with which I agree and add by way of emphasis that the action at the Court below does not appear at a glance to be hopeless or a fable/fairy tale, but one that might have a chance of success, therefore the Court below was right in dismissing the application to strike out the claim for failing to disclose a reasonable cause of action vide lbrahim v. Osim (1988) NSCC (pt.1) 1184.
Appearances:
FUNKE AGBOR SAN with him,
K. K. OKWUJIAKOFor Appellant(s)
DOLAPO AKINRELE SAN with
him, ANTHONY NKADI, JACINTA
OBINUGWU and KEMI OLUWAGBEMIRO For Respondent(s)
