MV “WESTERN STAR” & ORS v. B.L. LIZARD SHIPPING COMPANY LIMITED
(2013)LCN/6455(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of August, 2013
CA/L/868/2009
JUSTICES
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
1. MV “WESTERN STAR”
2. EASTERN STAR SHIPPING COMPANY LTD. (OWNERS OF THE MV “WESTERN STAR”)
3. MASTER OF THE MV “WESTERN STAR” Appellant(s)
AND
B.L. LIZARD SHIPPING COMPANY LIMITED Respondent(s)
RATIO
THE POSITION OF THE LAW ON SIGNING ORIGINATING PROCESSES
In the case of Peak Merchant Bank v. NDIC (2011) 12 NWLR (Pt.1261) 253, which unfortunately involved an originating process signed in a similar fashion by the same law firm of Babjide Koku, my learned Brother, Mshelia, JCA examined the reasoning of the Supreme Court in the Okafor v. Nweke case along with a host of other cases cited by counsel in this matter and held that it applies. The Learned Justice said at page 261 G – H:
“In the light of the Supreme Court decision in Okafor v. Nweke (supra) I am of the firm view that any person signing process on behalf of a principal partner in the chambers must state his name and designation to show that he is a legal whose name is ascertainable in the roll of registered Legal Practitioners. This is to avoid a situation where a clerk, messenger or secretary would sign processes filed in court on behalf of principal partners in the chambers. Nobody is saying that a junior counsel in chambers cannot sign or file processes on behalf of a principal partner but his identity must be stated. It is not enough to just sign the process without indicating the name and designation of such person.” PER IYIZOBA, J.C.A.
WHETHER OR NOT ORIGINATING PROCESSES MUST BE SERVED PERSONALLY
It is trite that an originating process must be served personally and not through another defendant. Management Enterprises Ltd v. Otusanya (supra). It follows from the above that the Respondent failed to satisfy the requirement of law regarding issuance of concurrent writ and endorsement limiting the time within which the 2nd Appellant must appear. Failure to obtain prior leave of court to issue writ meant for service outside the jurisdiction of court as in this case is a fundamental defect which renders the writ so issued incompetent. See Nwabueze v. Okoye (1988) 4 NWLR (Pt.91) 664; NEPA v. Onah (1997) 1 NWLR (Pt.484) 680 @ 690. PER IYIZOBA, J.C.A.
WHETHER OR NOT HE WHO ASSERTS MUST PROVE
It is further the law that he who asserts must prove. Thus where a party alleges the existence of a fact the onus is on such party to prove the existence of such fact conclusively. See Ojoh v. Kamalu (2005) 18 NWLR (Pt.958) 523 @ 560; Finger Agro-Industrial Enterprises Ltd v. Yusufu (2003) 12 NWLR (Pt.835) 488. PER IYIZOBA, J.C.A.
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): By a writ of summons and Statement of Claim dated 20th November, 2006 but filed on the 22nd November, 2006, the Respondent as Plaintiff claimed against the Appellants/Defendants jointly and severally as follows:
“1. The sum of US$121,650 being the outstanding cost for the bunkers supplied to the 1st Defendant by the Plaintiff.
2. Interest on the above sum at the rate of 2% per month from the 26th March 2006 till judgment and thereafter at the rate of 10% per annum until the judgment debt, interest and costs are fully liquidated.
3. US$30,000 being the legal costs incurred by the Plaintiff in respect of this matter.
4. A declaration that the beneficial ownership of the 1st Defendant is vested in the 2nd Defendant Eastern Star Shipping Company Ltd.”
The Respondent’s case is that it is a registered foreign company engaged in the business of supplying bunkers and lubricants to ships. It pleaded that the 2nd Defendant/Appellant is the beneficial owner of the 1st Defendant/Appellant while the 3rd Defendant/Appellant is the Master of the vessel. It claimed that sometime in February 2006, the 2nd Defendant/Appellant through its agent, Interoil Trading S.A. contracted the Respondent to supply bunkers to the 1st Appellant. The Respondent accordingly sourced the bunkers from Messrs Shipoil S.A. and supplied the bunkers to the 1st Appellant. The contract, it was claimed, was that the bunkers supplied must be paid for within 45 days from the date of delivery. Notwithstanding that the delivery and presentation of the invoice was done on the 10th of February, 2006, the Appellants have failed to pay for the bunkers valued at US$121,650 till date despite repeated demands and the fact that the 1st and 3rd Appellants acknowledged receipt of the bunkers supplied by the Respondent. The Respondent amended its pleadings by order of court dated 6th December, 2006.
The Appellants who also amended their pleadings on 13/3/07 denied liability to the claims. They admitted that the 2nd Appellant is the beneficial owner of the 1st Appellant and that the 3rd Appellant is the Master of the vessel but denied that the 2nd Appellant contracted the Respondent to supply bunkers to the 1st Appellant and that the 2nd Appellant was ever a party to any such contract. It was pleaded that at all times material to the purported contract, the 1st Appellant was neither in the possession and control of the 2nd Appellant nor was Interoil Trading S. A. the 2nd Appellant’s agent as alleged. The Appellants pleaded that the 1st Appellant was at the material time on time-charter to Reefer Lines Inc which includes Maistra Maritime Company, neither of which was an agent of the Appellants. In paragraph 7 of their Amended Statement of Defence, the Appellants pleaded that in the unlikely event that they are to be held accountable for the 1st Defendant at the times material to the claims herein, they averred that the amount claimed by the Respondent as the cost of the aforementioned bunkers was fully settled by the said time-charterers who paid Interoil Trading S. A. for the said bunkers which were delivered by a company called Petrol Ofisi A, S. They claimed that they are not personally liable to the Respondent for the cost of the bunkers. The Appellants further pleaded that the party with whom the Respondent contracted are not the beneficial owners and or demise charterers of the vessel MV. “Western Star” and accordingly will pray the court to dismiss the suit on this ground also,
Trial started on 13th March, 2007 with the Respondent calling only one witness who tendered two documents: the bunkers delivery receipt No. 009641 dated 10/02/06 as exhibit A and the bunker Invoice No. NR060202 issued by the Respondent dated 24/02/06 as Exhibit A1. The Respondent’s witness in his evidence stated inter alia that the Appellants did not comply with the payment instructions contained in Exhibit A1 and that the 3rd Appellant duly acknowledged the bunker delivery invoice as the owner’s agent. He stated that the Respondent was not a party to the charter party agreement and that the Respondent supplied the bunker to the vessel and that the charterer has not paid for the bunker. Under cross-examination, he said among other things that he did not play any role in the making of the contract and that he did not have a copy of the contract in court but that he has it in his headquarters in Europe. He said that it was the Respondent that took the bunker to the vessel directly. He admitted that Exhibit A1 is an original copy. He also said that he was in Nigeria at the time the contract was made and the bunker delivered. He did not know that the vessel was chartered to Reefer Lines Group and was not aware that the charterers had paid for the bunkers.
DW1, the sole witness of the Appellants tendered the alleged charter agreement as Exhibit B. He said that from clause 4 of Exhibit B it was the responsibility of the charterers to supply bunkers to the vessel during the charter patty agreement and not the owners. He said that the duration of the charter party was 6 months commencing from the date of delivery of the vessel which was scheduled for November, 2005 and that the charter party expired in April 2006. He said that the bunker in issue was supplied within the duration of the charter party. He said the bunker was ordered by the charterers who received an invoice from Interoil Trading S. A. which he tendered as Exhibit B1, He acknowledged Exhibit A1 as the bunkers delivery receipt. He said the time-charterers ordered the bunkers from Interoil Trading S. A. but it was Petrol Ofisi that delivered it, He tendered payment confirmation letter from Interoil Trading as Exhibit B2. He said that by the custom of shipping trade, as bunker supplier is frequently not aware of the party ordering their bunker either as the master, owner or managing owner or operator of the vessel, the invoice is usually issued to all the persons enumerated above and that the Master usually signs the document of such delivery. Under cross-examination, he stated that he does not work for the 2nd Appellant and that the 2nd Appellant is based in Panama while he is based in Antwerp. He stated that Exhibit B is strictly a document between Sea Trade Group NV and Reefer Lines Group Inc and that the 2nd Appellant and the Respondent are not parties to it. He stated that Exhibit A1 was incorrectly issued in the name of the 2nd Appellant.
After consideration of the evidence led and the addresses of the learned counsel for the parties, the trial Judge entered judgment in favour of the Respondent except with respect to its claims for the legal costs incurred which he dismissed as having not been proved.
Dissatisfied with the judgment, the Appellants appealed to this Court initially filing a Notice of Appeal containing 11 grounds of appeal. Pursuant to the leave of this Court; they amended the notice of appeal to include two additional grounds of appeal making a total of 13 grounds. Out of these 13 grounds of appeal, the Appellants formulated 11 Issues for determination while the Respondent formulated 4 issues. The Respondents four issues cover all the 11 issues of the Appellants. I shall therefore adopt the Respondent’s issues in the determination of this appeal. Thus the issues for determination are as follows:
1. Whether the lower court had the jurisdiction to entertain the Respondent’s suit as constituted before it.
2. Whether the finding of the lower court confirming the existence of a contract between the Respondent and the Appellants was justifiable having regards to the facts and evidence adduced before the lower court.
3. Whether the Appellants furnished sufficient and/or credible evidence to establish payment for the bunkers supplied to the 1st Appellant by the Respondent.
4. Whether the Respondent could validly issue in rem proceedings and/or maintain an admiralty action in rem against the 1st Appellant.
ISSUE ONE:
APPELLANT’S ARGUMENTS:
The Appellants contended that the Respondent failed to seek and obtain prior leave of the trial court to issue the writ of summons in this case meant for service on the 2nd Appellant who was ordinarily resident outside the jurisdiction of the court; mark the writ as a concurrent writ for service outside the jurisdiction and also did limit the time within which the said defendant may appear thereto to less that 30 days contrary to the provision of the Sheriffs and Civil Process Act. Learned counsel for the Appellants submitted that by virtue of Order 6 Rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000 which is applicable to this matter, no writ for service outside the jurisdiction of the court shall be issued without leave of court. He submitted that the 1st and 3rd Appellants were resident outside the jurisdiction, although the 1st and 3rd Appellants were within jurisdiction when the 1st Appellant was arrested. He submitted that the address for service on the 2nd Appellant is in the Ukraine but nevertheless the Respondent purportedly served it through the 3rd Appellant. He submitted that originating process meant for service on one defendant cannot be served on another. Management Enterprises v. Otusanya (1987) 1 NSCC 577 at 583; Agip Nig. Ltd. v. Agip Petroli International (2010) 5 NWLR (Pt.1187) 348 at 388 – 389 G-B. He submitted that the Respondent was bound to mark the writ concurrent writ and failure to do so is fatal. He referred to Owners of MV “Arabella” v. Nigerian Agricultural Insurance Corporation (2008) 11 NWLR (Pt.1097) 182 at 206; Agip Nig. Ltd. v. Agip Petroli International (2010) 5 NWLR (Pt.1187) 348 at 388 – 389 G-B; NPA v. Eyamba (2005) 12 NWLR (Pt.939) 409 at 448 H. Relying on the MV “Arabella” case, he submitted that the provisions of the Sheriffs and Civil Process Act are applicable to all courts in Nigeria and the failure to make the necessary endorsements cannot be treated as procedural irregularity. He further referred to the cases of Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521 and Oketade v. Adewunmi (2010) 8 NWLR (Pt.1195) 63 at 74 to submit that the originating writ of summons in this case was signed “F. Babajide Koku” and that rendered the writ incompetent. He referred also to Peak Merchant Bank v. NDIC (2011) 12 NWLR (Pt.1261) 253 at 260 – 262. He urged the Honourable Court to resolve the issue in Appellants’ favour.
RESPONDENT’S ARGUMENTS:
In response, learned counsel for the Respondent submitted that a challenge of court’s jurisdiction can be subsumed under two broad headings. A challenge can be in respect of substantive jurisdiction of court or its procedural jurisdiction. While matters relating to substantive jurisdiction cannot be waived, those of procedural can. He submitted that to challenge procedural jurisdiction the defendant complaining must act timeously or such challenge could be deemed to have been waived. He referred to Kossen Nig. Ltd v. Savannah Bank Nig. Ltd. (1995) 9 NWLR (Pt.420) 439 at 451 D; Mobil Producing Unlimited v. LASEPA (2002) 12 SC (Pt.1) 26 at 38. He submitted that in this case the Appellants challenged the procedural jurisdiction of the court on appeal after full trial and judgment by the trial court and as such it is belated.
On the matter of leave to issue writ, he submitted that the present action is an admiralty action in rem and not in personam and that by virtue of Section 7(1) of the Admiralty Jurisdiction Act, 1991 a writ in an action in rem can be served on a ship and as such service of a writ on a ship in an action in rem as this is proper service. He submitted that the writ was thus served within the jurisdiction of the trial court and the arguments of the Appellants based on the Sheriffs and Civil Process Act and the Federal High Court Civil Procedure Rules are misconceived, He submitted that Order 54(2) the Federal High Court Civil procedure Rules 2000 does not permit the Federal High Court to resort to its general Rules when there are specific Rules on the subject matter. He stated that the Admiralty Jurisdiction does not require a Plaintiff seeking to issue writ in action in rem to seek leave or to issue concurrent writ. He referred to Tigris International Corporation v Ege Shipping & Trading Ind. Inc. (1999) 6 NWLR (Pt.608) 701 at 717 D – F. He further referred to Order IV (I) of the Admiralty Jurisdiction Procedure Rules, 1993 and submitted that the 2nd Appellant was listed as a party in the suit in compliance with the law which requires that “The writ in a proceeding commenced as an action in rem shall specify a relevant person in relation to the maritime claim concerned as a defendant and shall be in form B in the Schedule to these Rules.” He submitted that to argue that leave is required to issue writ for service on the 2nd Appellant would amount to suggesting that the 2nd Appellant was sued in his personal capacity. Suing the 2nd Appellant in its personal capacity will run contrary to Order 2 Rules 3(3) of the Admiralty Jurisdiction procedure Rules, 1993 which specifies that an action in rem shall not be commenced by the same initiating process as the process by which a proceeding is commenced as an action in rem. He submitted that admiralty is a specialized branch of law and some procedures applicable to admiralty are peculiar, M.V. “S. Araz” v. Scheep (1996) 5 NWLR (Pt.447) 204 at 224 was cited. Based on this case also, it was submitted that for purposes of an action in rem the 2nd Appellant in this case must be deemed to be resident in Nigeria within jurisdiction and it does not require leave to serve writ on the 2nd Appellant. He submitted that the case of MV “Arabella” cited by the Appellants is unhelpful in that it did not deal with an action in rem. Chevron Nig. Ltd. v. Warri North LGC (2003) 5 NWLR (Pt.812) 28 at 42 – 45. On the issue of minimum period that should be specified on the writ, the Respondent submitted that the minimum period specified on Form B in the schedule to the Rules is 14 days as against the 30 days canvassed by the Appellants. He submitted that the Appellants having participated fully at the trial without objection are deemed to have waived their rights as to the time limited for their appearance. David v. Jolayemi (2011) 11, NWLR (Pt.1258) 320. On the issue of endorsement of the name “F. Babajide Koku”, he referred to Order 6 Rule 10 of the Federal High Court Civil Procedure Rules 2000 and submitted that counsel has the option to endorse the writ with either his name or the practitioner/firms name. He submitted that there is no requirement in the rules that a legal practitioner must sign the process after endorsing his name thereon. Counsel cited the case of David v Jolayemi (2011) 11 NWLR (Pt.1258) 320 at 356 B – F. He referred Section 2(1) of the Legal Practitioners Act and argued that the provision relates to issue of eligibility to practice as a barrister and solicitor in Nigeria. It has no bearing on the requisite endorsements that confer validity on an originating process, Therefore the competence of the writ authored and issued by Respondent’s counsel cannot be faulted on the ground that it was signed on behalf of Babajide Koku because he is a legal practitioner entitled to practice law in Nigeria. He submitted that the cases of Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521 and Oketade v. Adewunmi (2010) 8 NWLR (Pt.1195) 63 cited by counsel relates to counsel issuing process in the names of their firms particularly when such firms are unregistered and were not legal practitioners within the law. He referred to the meaning of signature in Black’s Law Dictionary 7th Edition at page 1387 and the case of Edet v Chief of Air Staff (1994) 2 NWLR (Pt.324) 41 at 65 H-A and submitted that where a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it. He further relied on the case of Ogunshakin v. Ajidera (2008) 6 NWLR (Pt.1082) 1 at 24 – 25 E – B to submit that there is a presumption that the junior counsel who signed the writ had the authority of Babajide Koku to sign it and that the Appellants ought to adduce evidence to disprove this as the issue of whether a person is a legal practitioner is a question of fact, He said that the decision in Peak Merchant Bank v. NDIC (2011) 12 NWLR (Pt.1261) 253 related specifically to the rules of the Court of Appeal and that Order 6(10) of the Federal High Court (Civil Procedure) Rules is what governs the instant case. The competence of an originating process is governed by the rules of the particular court, he submitted. Counsel further added that the decision in Peak Merchant Bank v. NDIC (2011) 12 NWLR (Pt 1261) 253 should not be applied retrospectively to undo the Respondent’s action that had been concluded in 2008 before the decision was handed down.
APPELLANTS’ REPLY ON LAW:
Learned counsel for the Appellant in his reply brief made very lengthy and copious submissions in answer to the Respondent’s Brief of Argument. This is not right as the object of reply brief is to give an Appellant the opportunity of replying to new points of law raised in the respondent’s brief of argument and not to repeat or re-argue his case. Agala v. Okusin (2010) 10 NWLR (Pt.1202) 412 at 428 D – E. Most of the arguments canvassed in the Appellants’ Reply Brief are mere repetitions of points already argued in the Appellants’ brief apparently for the purpose of reinforcing the arguments in the Appeal. That is an abuse of the right to file a reply brief.
In sum learned counsel for the Appellant argued that the provisions of section 98 of the Sheriff and Civil Process Act are mandatory. Purechem Industries Ltd. v. Spica Shipping & Co. Ltd. (2012) 3 NWLR (Pt.1287) 327 at 348 cited. He submitted that the provision of the rules of court will not override the provisions of the Sheriff and Civil Process Act citing the MV Arabella case (supra). He cited a host of authorities to buttress the contention that prior leave of court must be obtained before issuance of writ for service outside the jurisdiction. He submitted that the Respondent’s action was not strictly one for admiralty action in rem which will not require obtaining of leave to serve out of jurisdiction as it sued not only the res but two other Defendants. He referred to Touton S. A. v. Grimald Compagnia Di Navigationi SPA (2011) 4 NWLR (Pt.1236) 1 at 23 and MV Mustafa v. Afroasian Impex Ltd. (2002) 14 NWLR (Pt.787) 395 at 410 F for definition of action in rem and made further references to MV. Araz v. Scheep (supra); learned author Christopher Hill in his book Lloyd’s Practical Shipping Guide “Maritme Law” Sixth edition, 2003 at page 100; Rhein Mass UND SEE GMBH v. Rivway Lines Ltd (1998) 5 NWLR (Pt 549) 265 at 28I C – D; NPA v. Panalpina (1973) 5 SC 77 at 96 – 97. He submitted that the Respondents action as filed violated the provisions of Order 2 Rule 3(3) of the Admiralty Jurisdiction Procedure Rules and must be struck out. He urged the Court to discountenance the arguments of the Respondent.
RESOLUTION:
In resolving the three pronged issue of jurisdiction raised in this case, I first consider the issue of signature on the writ of summons which is originating process in this action. It is not disputed that it was signed on behalf of Babjide Koku and the name and the designation of the person who did so was not disclosed. Both sides have made strong arguments to convince this Court to accept their position. Counsel for the Respondent tried to distinguish the decisions of the Supreme Court in the cases of Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521 and Oketade v Adewunmi (2010) 8 NWLR (Pt.1195) 63 as relating to counsel issuing processes in the names of their firms particularly when such firms are unregistered and the firms were not legal practitioners within the law. In the case of Peak Merchant Bank v. NDIC (2011) 12 NWLR (Pt.1261) 253, which unfortunately involved an originating process signed in a similar fashion by the same law firm of Babjide Koku, my learned Brother, Mshelia, JCA examined the reasoning of the Supreme Court in the Okafor v. Nweke case along with a host of other cases cited by counsel in this matter and held that it applies. The Learned Justice said at page 261 G – H:
“In the light of the Supreme Court decision in Okafor v. Nweke (supra) I am of the firm view that any person signing process on behalf of a principal partner in the chambers must state his name and designation to show that he is a legal whose name is ascertainable in the roll of registered Legal Practitioners. This is to avoid a situation where a clerk, messenger or secretary would sign processes filed in court on behalf of principal partners in the chambers. Nobody is saying that a junior counsel in chambers cannot sign or file processes on behalf of a principal partner but his identity must be stated. It is not enough to just sign the process without indicating the name and designation of such person.”
The Court in the Peak Merchant Bank case considered the case of Edet v. Chief of Air Staff (supra) and held that both the names and designation of the officer that signed the said letter on behalf of the Chief of Air Staff were given. The learned Respondent’s counsel cited the English case of London County Council v. Agricultural Foods Products Ltd. (1955) 2 All ER 229 and quoted a portion of the judgment of Lord Justice Parker which included the following :
“No doubt at common law, where a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it, nevertheless there may be cases in which a statute may require personal signature.”
The reasoning in the cases of Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521; Oketade v. Adewunmi (2010) 8 NWLR (Pt.1195) 63; Ogundele v. Agiri (2008) 18 NWLR (Pt.1173) 219 and the other cases on the point is that it is the requirement of statute that only legal practitioners entitled to practice law must sign court processes. So the case of London County Council admits that there may be situations where statute may require that documents are signed in a particular manner, in this case by enrolled legal practitioners only. The only way of verifying compliance with this requirement is by indicating the names and designation of such legal practitioners. I do not accept that there is a distinction between the principle established in the case of Okafor v. Nwele and the facts of this case. Based on the foregoing, I find that the writ of summons which is the originating process in this case is incompetent.
The jurisdiction of the trial court to entertain this action was also challenged on the ground that prior leave of the trial court to issue and serve the writ outside the jurisdiction of the Federal High Court was not obtained and that no endorsement as required by the provisions of Section 98 of the Sheriffs and Civil Process Act was made, As shown above, the Respondent’s answer to the issue of failure to obtain leave is that this is an action in rem for which the 2nd Appellant is deemed to be resident within the jurisdiction of the trial court. It is not disputed by the parties that for action in rem in admiralty matters, there is no requirement to obtain prior leave to issue writ of summons for service outside jurisdiction as the defendant is deemed by operation of Law to be resident within jurisdiction. In MV Mustafa v. Afroasian Impex Ltd (2002) 14 NW(R (Pt.787) 395 at 410 F, admiralty action was defined thus:
“…an action in rem is by a simple definition in law an action against the ‘res’. Here the ‘res’ is the ship himself.”
See also the learned author Christopher Hill in his book Lloyd’s Practical Shipping Guide – “Maritime Law” Sixth edition, 2003 at page 100; Rhein Mass UND SEE GMBH v. Rivway Lines Ltd (1998) 5 NWLR (Pt.549) 265 at 281 C – D and NPA v. Panalpina (1973) 5 SC 77 at 96-97. It is clear from the parties as endorsed in the writ of summons and statement of claim that this is not purely an action in rem as there are two other defendants sued along with the vessel. It is therefore an action in personam. Based on Order 2 Rule 3(3) of the Admiralty Jurisdiction Procedure Rules action in personam shall not be commenced by the same initiating process by which a proceeding is commenced as an action in rem. I consequently hold that by virtue of the provisions of Order 6 Rule 12(1) of the applicable Federal High Court Civil Procedure Rules 2000, prior leave of the trial court ought to have been obtained to issue and serve the writ of summons in this case on the 2nd Appellant who resides outside the jurisdiction of this Federal High Court. To avoid serving the 2nd Appellant as required by law in this case, that is, after obtaining prior leave to issue writ and to serve out of jurisdiction, the Respondent caused the writ meant for service on it to be served on the 3rd Appellant.
It is trite that an originating process must be served personally and not through another defendant. Management Enterprises Ltd v. Otusanya (supra). It follows from the above that the Respondent failed to satisfy the requirement of law regarding issuance of concurrent writ and endorsement limiting the time within which the 2nd Appellant must appear. Failure to obtain prior leave of court to issue writ meant for service outside the jurisdiction of court as in this case is a fundamental defect which renders the writ so issued incompetent. See Nwabueze v. Okoye (1988) 4 NWLR (Pt.91) 664; NEPA v. Onah (1997) 1 NWLR (Pt.484) 680 @ 690. I hold that the writ of summons issued in this case is incompetent on this score. The argument of the Respondent that the defect in this case is merely procedural and is deemed to have been waived by the Appellant who participated in the proceedings till judgment is not accepted because the defect is a fundamental one that goes to the root of the matter. It is not an irregularity that can be waived. Issue one is resolved in favour of the Appellants as the trial court had no jurisdiction to entertain the matter in view of the fact of noncompliance with the conditions precedent to exercise of jurisdiction.
The above findings are enough to allow this appeal but as this court is not the final appellate court I will proceed to consider the merits of the appeal.
ISSUE TWO:
Whether the finding of the lower court confirming the existence of a contract between the Respondent and the Appellants was justifiable having regards to the facts and evidence adduced before the lower court.
This issue covers issues 1 to 5 of the Appellants and I will consider them jointly along with issue 2 of the Respondent.
APPELLANTS’ ARGUMENTS:
In addressing this issue, learned Counsel for the Appellant referred to paragraphs 5 to 10 of the Amended Statement of Claim of the Respondent and argued that the Respondent averred that there was a contract for supply of bunkers between it and the Appellants which the Appellants denied. It is then submitted that the onus is squarely on the shoulders of the Respondent to prove existence of the contract and that material facts pleaded and traversed must be proved. Aiuwon v. Akanni (1993) 9 NWLR (Pt.316) 182 @ 200 – 201; Anya v. ANN Ltd (1992) 6 NWLR (Pt.247) 319 @ 331.
Counsel referred to the evidence of PW1 under cross-examination where he asserted that there is a contract for the supply of the bunkers which is with their headquarters in Europe and stated that it is amazing that the Respondent could not produce this all important document and urged the court to invoke the provisions of Section 149(d) of the Evidence Act (now Section 167(d) of Evidence Act 2011. He referred to Tewogbade v. Akande (1968) NMLR 404. It was submitted that he who asserts must prove. The case of Finger Agro-Industrial Enterprises Ltd. v. Yusufu (2003) 12 NWLR (Pt.835) 488 was cited. Counsel submitted that the trial Judge was wrong to have held the Appellants bound by a contract that was not proved. Counsel submitted that the fact that the Appellants contended that there is no contract between them and the Respondent did not deprive them of the right to argue that in any event the cost of the bunkers supplied to the vessel had been paid by the time-charterers and to tender documents in support of same. The trial Judge was therefore wrong to have held that the Appellants were stopped from denying the existence of the contract in the circumstance. Counsel submitted that there is no evidence in line with the case of the Respondent that it supplied bunkers to the Appellants, as Exhibit A, the bunker delivery receipt was issued by another person Petrol Ofisi. It was submitted that Exhibit A was inconsistent with paragraph 6 of the Amended Statement of Claim and that a party cannot be allowed to lead oral evidence to contradict document tendered which was what PW1 did. Counsel argued that Exhibit A1 which was the invoice issued by the Appellant cannot exist in vacuum, but the Respondent must first establish a valid contract to support it. He argued also that Exhibit A1 was admitted by PW1 to be the original document and that its delivery was as such not proved. Counsel referred to Ojoh v. Kamalu and submitted that the burden is on the party who alleges the affirmative of an issue to establish it. It was submitted that there was no evidence on the basis of which the lower court found that Petrol Ofisi acted as agent of the Respondent in the transaction. He stated that there is nothing connecting the Respondent with Petrol Ofisi and consequently submitted that the Respondent did not supply bunkers to the Appellants.
RESPONDENT’S ARGUMENTS:
In reply learned counsel for the Respondent submitted that the existence of a contract to supply bunkers to the first Appellant was never an issue. Counsel argued that it was conceded by both parties in their pleading that there was in fact a sale and delivery of bunkers to the 1st Appellant in February, 2006. The only issue is that of ascertaining the parties to the contract. It was contended that the Appellants did not impugn the contents of exhibits A and A1. He argued that the Appellants refused to address the fact that Exhibits A1 contained the terms of the sale contract. He said that the seller and buyer of the bunkers were correctly identified as the Respondent and Interoil S. A. and jointly and severally the M V Western Star/its Master/Managers/Operators/Owners and Charterers. He argued that the attempts of the Appellants to obfuscate issues by making heavy weather of who delivered the bunkers to the 1st Appellant is of no moment as Petrol Ofisi was identified in the document. It was further submitted that the document tendered by the Appellants to show that the vessel was not in possession of the 2nd Appellant as at February, 2006 was Exhibit B but that the document did not show that the 2nd Appellant chartered its vessel to anyone. Counsel contended that in the absence of evidence that the 2nd Appellant chartered its vessel, the court must find it liable under the contract and that clause 4 of the Charter-party agreement will not avail the Appellants. Counsel submitted that out of desperation, the Appellants urged the Court not to ascribe any weight to Exhibit A1 because it was not delivered and so did not constitute evidence of the existence of any contract; but under cross-examination PW1 admitted that the Charterers were liable to pay for the bunkers and that it was Petrol Ofisi that delivered the bunkers. Counsel submitted that the Appellants never raised the issue of non-service in their pleading or evidence and that same is a fresh issue raised without leave of court. See ACB. Plc v. NTS Nig Ltd (2007) 4 NWLR (Pt.1016) 546 @ 616 F-H. He submitted that existence of contract can be deduced from the documents relating to the contract. He submitted that the trial Judge rightly held that the Appellants were stopped from denying existence of the contract. He submitted that contrary to the submissions of the Appellants, PW1 never admitted that the charterers were liable to pay for the bunkers. Parties are bound by the record of proceedings Ekwenchi v. Ugwu (2002) 1 NWLR (Pt.749) 590 @ 603; Onagoruwa v. State (1993) 7 NWLR (Pt.303) 49 @ 95.
RESOLUTION:
As I have said above while reviewing the facts, the Respondent claimed that sometime in February 2006, the 2nd Defendant/Appellant through its agent, Interoil Trading S.A. contracted the Respondent to supply bunkers to the 1st Appellant. The Respondent accordingly sourced the bunkers from Messrs Shipoil S.A. and supplied the bunkers to the 1st Appellant. The contract, it was claimed, was that the bunkers supplied must be paid for within 45 days from the date of delivery. Notwithstanding that the delivery and presentation of the invoice was done on the 10th of February, 2006, the Appellants have failed to pay for the bunkers valued at US$121,650 till date despite repeated demands and the fact that the 1st and 3rd Appellants acknowledged receipt of the bunkers supplied by the Respondent.
The Appellants admitted that the 2nd Appellant is the beneficial owner of the 1st Appellant and that the 3rd Appellant is the Master but denied that the 2nd Appellant contracted the Respondent to supply bunkers to the 1st Appellant and that the 2nd Appellant was ever a party to any such contract. It was pleaded that at all times material to the purported contract, the 1st Appellant was neither in the possession and control of the 2nd Appellant nor was Interoil Trading S.A. its agent as alleged by the Respondent.
I find that based on the pleadings of both sides to this action that issues were joined on the existence of a contract for supply of bunkers between the 2nd Appellant and the Respondent at the material time. The essence of pleadings is to enable the contending parties and the court to identify with as much certainty as possible the issues in controversy between the parties and avoid springing surprises. Agbu v. CSCNS (2011) 1 NWLR (Pt.1229) 544 @ 556 D-E. Based on the issues joined, it is obvious that the Appellants are contending that they have no contract with the Respondent while the Respondent is asserting that there was a contract. The Respondent’s witness went further to assert that he has a copy of the contract document in their possession but yet failed to produce same and tender it in evidence to enable the trial court resolve this most crucial issue of who entered into the contract with the Respondent. Under the circumstance, the trial court ought to have invoked the presumption raised under Section 149(d) (now Section 167(d) of Evidence Act, 2011) against the Respondent. The section provides that:
“The court may presume the existence of nay fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume –
(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
There is no doubt in this case that this most important piece of evidence exists as testified to by the Respondent’s witness and it could have been produced but was not and thus it could be safely presumed that the Respondent is withholding it. The provisions of the law ought appropriately to be invoked against the Respondent who was the Plaintiff in this case. It is further the law that he who asserts must prove. Thus where a party alleges the existence of a fact the onus is on such party to prove the existence of such fact conclusively. See Ojoh v. Kamalu (2005) 18 NWLR (Pt.958) 523 @ 560; Finger Agro-Industrial Enterprises Ltd v. Yusufu (2003) 12 NWLR (Pt.835) 488. It is the Respondent that is asserting the existence of the contract which the Appellants denied. The Respondent must first establish the existence of the contract before the onus will shift to the Appellants to prove the issue of existence of charter party and that the charterers had paid for the supply of the bunkers. In the instant case, the trial court put the cart before the horse and it ought not to be so. See Ihekwoaba v. ACB Ltd. (1998) 10 NWLR (Pt.571) 590 @ 625 C – D.
Where a party asserts as in this case that the contract which it has sought to enforce is in writing, it is the written document itself that must be construed by the court to determine the rights of the parties and whether indeed there is any breach of contract as has been alleged. See Dantata v. Dantata (2002) 4 NWLR (Pt.756) 144 @ 162 E – F.
It was the Respondent who asserted that Interoil S. A. was the agent of the 2nd Appellant but it led no evidence in this regard to prove the claim. Notwithstanding these lapses in the case of the Respondent, the trial court yet found that a contract existed between the Appellants and the Respondent based on other documents which may not have addressed fully the terms of the contract between the parties in this case, if any, Such findings are perverse in the circumstances and must not be allowed to stand. It follows from what I have said above that since the Respondent did not prove its claim about the existence of a contract between the parties, it was premature for the trial court to hold that the Appellants are estopped from denying the existence of the contract and to invoke the provision of Section 149(d) of the Evidence Act against them for not producing and tendering in evidence the swift advice Pleaded.
Still on the issue of the invoice, Exhibit A1, the Appellants have contended that the document tendered is the original copy and not the acknowledged copy hence the Respondent has not proved that it delivered the document to the Appellants in the first instance. The Respondent on its part is contending that this is a fresh issue being raised by the Appellants for the first time on appeal without obtaining prior leave of court to do so. It is a correct statement of the law that an appellate court will not entertain on appeal an issue that was not raised before the trial court where prior leave of the appellate court was not sought to do so. However, the issue is whether this point is being raised for the first time on appeal. At page 120 of the record of appeal while the PW1 was being cross-examined by the Appellants’ counsel, he admitted that Exhibit A1 was an original copy. In the light of the fact that the counsel for the Appellants raised this point under cross-examination, though it was not raised in the final address, I am not going to accept the contention that it is a fresh point being raised for the first time on appeal. The fact that the Respondent’s witness admitted that the invoice Exhibit A1, he tendered which ought to have been served on the Appellants was the original copy raised doubt as to whether that document had been served on the Appellants. The Respondent ought therefore to have led clear evidence of service or delivery of the invoice on the Appellants particularly as the date on Exhibit A, which is the bunker delivery receipt and the date on Exhibit A1 are different which means they were not issued and delivered at the same time.
Appellants pleaded that the 1st Appellant was at the material time on time-charter to Reefer Lines Inc which includes Maistra Maritime Company, neither of which was an agent of the Appellants. In paragraph 7 of their Amended Statement of Defence, the Appellants pleaded that in the unlikely event they are to be held accountable for the 1st Defendant at the times material to the claims herein, that the amount claimed by the Respondent as the cost of the aforementioned bunkers was fully settled by the said time-charterers who paid Interoil Trading S, A. for the said bunkers which were delivered by a company called Petrol Ofisi A. S. They claimed that they are not personally liable to the Respondent for the cost of the bunkers. The Appellants further pleaded that the party with whom the Respondent contracted are not the beneficial owners and or demise charterers of the vessel MV. “Western Star” and accordingly will pray the court to dismiss the suit on this ground also.
It is acceptable practice in law for a defendant to so plead and rely on inconsistent defences. See Egbe v. Adefarasin (1985) 1 NWLR (Pt.47) 1 @ 14 C-F.
This issue is also resolved in favour of the Appellants
ISSUES THREE AND FOUR
3. Whether the Appellants furnished sufficient and/or credible evidence to establish payment for the bunkers supplied to the 1st Appellant by the Respondent.
4. Whether the Respondent could validly issue in rem proceedings and/or maintain an admiralty action in rem against the 1st Appellant,
These two issues will be considered together and the arguments of counsel will be taken along with the resolution of the issues.
On the issue of whether the trial Judge rightly applied the provisions of section 91(3) of the Evidence Act against the Appellants with respect to exhibit B2, learned counsel for the Appellant contended that the document was made by a party who has not been shown to be an interested party while the Respondent is contending that the party who issued the document is an agent of the Appellants. The clear fact is that the document was made at a stage when proceedings were pending, but it is unclear whether the trial Judge rightly applied the provisions of Section 91(3) against the Appellants by refusing to give any probative value to the document. This issue cannot be fairly and justly resolved without identifying who the actual parties that contracted in this case are. My finding above is that the Respondent withheld vital evidence that would have resolved this: copy of the contract itself. That piece of evidence if it had been tendered would have also helped in determining who was and who was not an agent of any of the parties and clearly show whether this was an appropriate case to apply the provisions of the law. I therefore hold that given the circumstances of this case where the main contract document was not tendered in evidence, the court cannot safely hold that the author of exhibit B2 was an interested party who made the document while proceedings were pending, The finding of the trial Judge to this effect is hereby set aside.
On the issue of whether an action in rem is available to the Respondent in this case against the 1st Appellant; DW1, the sole witness of the Appellants tendered the alleged charter agreement as Exhibit B. He said that from clause 4 of Exhibit B it was the responsibility of the charterers to supply bunkers to the vessel during the charter party agreement and not the owners. He said that the duration of the charter party was 6 months commencing from the date of delivery of the vessel which was scheduled for November, 2005 and that the charter party expired in April 2006. He said that the bunker in issue was supplied within the duration of the charter party. He said the bunker was ordered by the charterers who received an invoice from Interoil Trading S. A. which he tendered as Exhibit B1. He acknowledged Exhibit A1 as the bunkers delivery receipt. He said the time-charterers ordered the bunkers from Inter-Oil
Trading S. A. and tendered Exhibit B1 as the invoice to prove this.
The Respondent’s contention was that Exhibit B was not a document made between the 2nd Appellant who is the owner of the 1st Appellant and the charterer and so the document is not relevant to the proceedings. The Appellants have argued that the document was made on their behalf by the managers of the vessel. While the 2nd Appellant is not clearly a party to the charter party, that agreement clearly relates to the vessel MV “Western Star”. In the light of the above,I do not accept the contention of the Respondent that the document is irrelevant to the proceedings. It will be too simple to dismiss it merely because the 2nd Appellant was not a party to it as stated earlier when in actual fact the document relates to the 1st Appellant. The real issue that is relevant is whether the 1st Appellant was under time-charter by Messrs Reefer Lines Group at the material time and whether it was the 2nd Appellant or Messrs Reefer Lines Group that ordered the bunkers in issue. I must once more say that this issue could have been easily resolved had the Respondent tendered the written contract relating to the supply of bunkers to the vessel as the contract would have disclosed the parties to the agreement,
It is interesting to note that while the Respondent conceded to the argument of the Appellant that if there was in fact a UME charter at the material time as the Appellants contended, do action in rem would not have been available to the Respondent against the 1st Appellant but an action in personam against the charterers who are liable under clause 4 of the charter party to pay for the bunkers. I must say that apart from stating that the 2nd Appellant was not a party to exhibit B, the Respondent tendered no evidence whatever to controvert the existence of the charter party. In the circumstances I accept the evidence of the existence of the charter party agreement with Messrs Reefer Lines Group, Exhibit B which clearly relates to the 1st Appellant. The trial Judge erred in not giving any probative value to Exhibit B which was in existence at the material time. In the face of Exhibit B and clause 4 thereof, I find that the 2nd Appellant is not liable to pay for the bunkers ordered during the existence of the charter party agreement with Messrs Reefer Lines Group. This issue is hereby also resolved against the Respondent.
In the light of the foregoing, this appeal has merit. It is hereby allowed. The Ruling (Judgment) of Shakarho J of the Federal High Court Lagos in Suit No FHC/L/CS/984/06 delivered on the 3rd day of June 2008 is hereby set aside. In its place, the suit is struck out for lack of jurisdiction of the trial court to entertain the suit. Cost assessed at N50,000.00 in favour of the Appellants.
CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading in draft, the judgment just delivered by my brother Iyizoba, JCA. I agree with his conclusion.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I concur in the judgment pronounced by Iyizoba C.A. and adopt it as my judgment in this appeal accordingly, there is merit in the appeal. I allow it and set aside the ruling of the court below (Shakarho, J. assuming jurisdiction in the case and substitute an order striking out the suit for want of jurisdiction.
Appearances
Ayo Olorunfemi Esq. with Rotimi Amuwo Esq. and A. Femi-Afolayan (Miss)For Appellant
AND
Victor Ogunde Esq. with Oguejiofor Chike Esq.For Respondent
