NOBLE DRILLING (NIG) LTD v. NPA (2021)

NOBLE DRILLING (NIG) LTD v. NPA

(2021)LCN/14923(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 08, 2021

CA/L/389/2016

RATIO

EVIDENCE: DUTY OF COURTS TO EVALUATE DOCUMENTARY EVIDENCE

Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, seeGonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. PER OGBUINYA, J.C.A.

ADMIRALTY LAW: MEANING OF A SHIP

However, independent of counsel’s assistance, l took an excursion into another legislation. It is the Admiralty Jurisdiction Act, Cap. A5, Laws of the Federation of Nigeria, (LFN), 2004. In its interpretation section/provision, Section 25 thereof, it provides:
“ship” means a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved and includes-
(a) a barge, lighter or other floating vessel, including a drilling rig;
(b) a hovercraft;
(c) an off-shore industry mobile unit;
and
(d) a vessel that has sunk or is stranded and the remains of such vessel, but does not include a vessel under construction that has not been launched.
My consultation with the Admiralty Jurisdiction Act, to ferret for the connotation of a ship, has the blessing of the law. In C.C.B v. A-G, Anambra State (1992) 10 SCNJ 137 at 163 and 164, the oracular Nnaemeka – Agu, JSC (of the blessed memory), insightfully and incisively declared:
What then does ’privatisation’ mean in the context? Admittedly, the word was not defined in the Decree itself…. The second, which is equally relevant in this case, is that it is quite legitimate to interpret an instant statute under construction by reference to other earlier statutes in the same group of legislation in order to determine the course and content of the legislation under consideration…. In the instant case, it is of material significance that before the Companies and Allied Matters Decree was promulgated the Federal Military Government with effect from 2nd January, 1990, the same legislator had, on the 5th of July, 1988, passed the Privatisation and Commercialisation Act… (Cap. 369) of [LFN] 1990 in which the ‘privatisation’ was defined….I should be guided by this definition in my construction of the word ‘privatisation’. PER OGBUINYA, J.C.A.
INTERPRETATION: RULE ON DEFINITION OF WORDS OR EXPRESSIONS IN THE PROVISIONS OF A STATUTE

It is trite, and elementary law, that where/once words or expressions in the provisions of a statute have been legally or judicially defined their ordinary meaning will definitely give way to their legally or judicially defined meanings in accord with the doctrine of judicial precedent/stare decisis, see Acme Builders Ltd v. K.S.W.B(1999) 2 SC 1(1999) 2 NWLR (Pt. 590) 288, Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 332; Shettima v. Goni (2011) 18 NWLR (Pt. 127) 413; A.-G. Fed. v. A.-G., Lagos State (2013) 16 NWLR (Pt. 1380) 249; Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 5915; Utomudo v. Mil. Gov., Bendel State (2014) 11 NWLR (Pt. 1417) 97. PER OGBUINYA, J.C.A.

EVIDENCE: DUTY OF THE TRIAL COURT IN ASCERTAINING THE WEIGHT OF EVIDENCE

In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412.

The law has saddled a trial Court, like the lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande(2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635;Onyekwuluje v. Animashaun (supra). PER OGBUINYA, J.C.A.

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

NOBLE DRILLING NIGERIA LIMITED APPELANT(S)

And

NIGERIAN PORTS AUTHORITY RESPONDENT(S)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal probes into the correctness of the decision of the Federal High Court of Nigeria, Lagos Division (hereinafter addressed as “the lower Court”), coram judice; O. E Abang, J., in Suit No. FHC/L/CS/451/20123, delivered on 11th December, 2015. Before the lower Court, the appellant and the respondent were the plaintiff and the defendant respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The appellant, an offshore drilling company, in May and November, 2011 obtained Temporary Import Permits (TIP) from Nigerian Customs Service (NCS) for the importation of their two rigs, “Noble Lloyd Noble” and “Noble Tommy Craighead” from Cameroun. The two rigs were brought into Calabar Port, Nigeria as Cargos, via different vessels, and were cleared for operations by NCS. The appellant claimed that since they were brought in as cargos they were not subject to pilotage or ship dues which were the responsibility of the owners/or masters of the carrying vessels. Again, it

asserted that it did not use or request for the services of the Vista Maritime Company Limited to incur stevedoring charges for the rigs. It further claimed that the carrying vessels did not pass through any Nigeria compulsory pilotage district nor did it utilise the services of any pilots in the carriage of the rigs. Despite these, the respondent imposed compulsory pilotage dues totaling $782,943.07. The appellant protested against the charges. When the appellant did not pay, the respondent instructed its managers and agents to stop port services to the appellant which subjected it to severe difficulties, almost to a total shut down of its offshore drilling operations. The appellant was forced to pay the charges on 29th February, 2020. As a result, the appellant served the respondent a notice of intention to commence action against it on the constitutionality of the pilotage and stevedoring charges. Inspite of the notice, the respondent commenced another round of stoppage of port services to the appellant. Sequel to these, the appellant beseeched the lower Court, via a writ of summons, filed on 2nd May, 2012, and tabled against the respondent the following

reliefs:
a. A DECLARATION that the imposition of compulsory pilotage dues on the Plaintiff by the Defendant with respect to the two rigs “Noble Lloyd Noble” and “Noble Tommy Craighead” which were brought into Nigeria as cargo in 2011 is unwarranted, unjustifiable, unlawful and unconstitutional.
b. A DECLARATION that the Plaintiff is not liable to pay the Defendant, its agents, servant, privies or any other person whatsoever the sum of US$264,314.22 (two hundred and sixty four thousand, three hundred and fourteen US Dollars, twenty-two Cents) or any other sum whatsoever as compulsory pilotage dues.
c. A DECLARATION that the payments made by the Plaintiff under duress to the Defendant and its agents as purported pilotage dues for the two rigs “Noble Lloyd Noble and the “Noble Tommy Craighead” are wrongful and ought not to have been made.
d. AN ORDER directing the Defendant to refund the sum of US$264,314.22 (two hundred and sixty four thousand, three hundred and fourteen US Dollars, twenty-two Cents) paid to it by the Plaintiff under duress as compulsory pilotage dues.
e. A DECLARATON that

the imposition of purported stevedoring charges on the Plaintiff by the Defendant for payment to companies with which the Plaintiff has no contracts whatsoever and for unsolicited and unutilised services is unlawful and unconstitutional.
f. A DECLARATION that the calculated attempt by the Defendant to compel the Plaintiff to utilize the services of the stevedoring companies through the imposition of purported stevedoring charges for unsolicited and unutilised services is unlawful and unconstitutional.
g. A DECLARATION that the Plaintiff is not liable to pay the Defendant, its agents, servants, privies or any other person whatsoever the sum of US$518,628.85 or any other sum whatsoever as stevedoring charges with respect to the two rigs “Noble Lloyd Noble” and the Noble Tommy Craighead” for unsolicited and unutilised services.
h. AN ORDER of perpetual injunction restraining the Defendant, its assigns, servants, agents, privies or representatives under any guise whatsoever from disturbing, obstructing, hampering or in any other manner whatsoever from interfering with the business of the Plaintiff on grounds of purported

compulsory pilotage dues and/or stevedoring charges for unsolicited and unutilised services with respect to the two rigs “Noble Llyod Noble” and the “Noble Tommy Craighead”.
i. Costs of the action.

In reaction, the respondent joined issue with the appellant and denied liability by filing a statement of defence.

Following the rival claims, the lower Court had a full-scale determination of the case. In proof of the case, the appellant called two witnesses: PW1 and PW2. In disproof of it, the respondent fielded a witness, DW1. Tons of documentary evidence were tendered. At the closure of evidence, the parties, through counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 11th December, 2015, found at pages 731 – 757, volume II, of the record, the lower Court dismissed the action.

The appellant was dissatisfied with the decision. Hence, the appellant, on 11th March, 2016, lodged a 7-ground notice of appeal, copied at pages 758 – 765, volume II, of the record, wherein it prayed this Court for:
i. AN ORDER allowing the Appellant’s Appeal and

setting aside the judgment of Honourable Justice O. E Abang delivered on 11th December, 2015.
ii. An order awarding costs in favour of the Appellant against the Respondents on indemnity basis.
iii. Any other order as this Honourable Court may deem fit to make.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing appeals in this Court. The appeal was heard on 13th October, 2020.

During its hearing, learned counsel for the appellant, Mojisola Jaiye-Gbenle, Esq., adopted the appellant’s brief of argument; filed on 27th September, 2016 but deemed properly filed on 19th September, 2017, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, Ame Ogie, Esq., adopted the respondent’s brief of argument, filed on 9th October, 2017, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned counsel distilled four issues for determination to wit:
i. Whether the learned trial judge rightly applied the

provisions of Sections 63(2) (a) and (b) and 127 of the Nigerian Ports Authority (NPA) Act in holding the Appellant’s rigs which were towed by vessels chartered by the Appellant are liable to pay the pilotage dues (Formulated from Grounds 1 and 2 of the Notice of Appeal)
ii. Whether having regard to the totality of the evidence led at trial, the judgment of the lower Court is sustainable. Formulated from Ground 3 of the Notice of Appeal)
iii. As between the Appellant and the Respondent, who has the evidential burden of proving that the vessels that carried the Appellant’s rigs passed through the compulsory pilotage districts and whether the Respondent placed sufficient evidence to warrant the Court to enter judgment in its favour? (Formulated from Grounds 4, 5 and 6 of the Notice of Appeal)
iv. Whether the learned trial judge properly considered and pronounced on all the issues raised by the suit? (Formulated from Ground 7 of the Notice of Appeal)

Admirably, the learned respondent’s counsel adopted the issues crafted by the learned appellant’s counsel with very minute/negligible modification of issue one.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Arguments on the issues:
Issue one.
Learned appellant’s counsel submitted that the lower Court misinterpreted the provisions of Sections 63 (2) (a) and (b) and 127 of the Nigerian Port Authority Act (NPA Act) when it held that appellant is liable to pilotage dues and caused it miscarriage of justice. He noted that the clear provisions should be given their ordinary meaning. He relied on Obiuweubi v. CBN (2011) 7 NWLR (Pt. 1247) 465; Emordi v. Igeke (2011) 9 NWLR (Pt. 1251) 24; Oyegun v. Nzeribe (2010) 7 NWLR (Pt. 1194) 577. He stated that the appellant’s rigs were not ships and towed by chartered vessel as cargoes. He observed that those facts were not denied and needed no proof. He cited Obasi Bros Co. Ltd v. M.B.A.S Ltd (2005) 9 NWLR (Pt. 929) 117. He added that the owner/master of a ship had the liability to pay for pilotage dues under Section 64 of the NPA Act. He described the lower Court’s finding of charter party agreement as perverse as the action was not based on it.

On behalf of the respondent, learned counsel contended, per contra, that the appellant’s rigs were jack-up rigs that were barges and vessels and

qualified as ships under Section 127 of the NPA Act. He relied on the definitions of Jack-up rig in Merriam –Webster, barge in Wikipedia and Dictionary of Shipping Terms, 5th edition at page 37. He stated that exhibits B12 and B13 (716-719) showed the rigs had masters. He asserted that the lower Court was right to invoke the provision of Section 167(d) of the Evidence Act, 2011 against the appellant for failure to produce the charter party agreement even after issuance of subpoena duces tecum on it. He concluded that Section 64 of the NPA Act would not apply to a consignce who had made himself liable to pay pilotage dues.

On points of law, learned appellant’s counsel cited the case of C.D.C (Nig) Ltd v. SCOA(Nig) Ltd (2007) 6 NWLR (Pt.1030) 300 where rig was defined.

Issue two.
Learned appellant’s counsel submitted parties were bound by their pleadings and their case would fall or succeed on them. He relied on Ibanga v. Usanga (1982) 5 SC (Reprint) 49; Okafor v. Abumofuani (2016) LPELR – 40299 (SC). He narrated the respective cases of the parties as shown in their pleadings. He asserted that the lower Court joined against

the evidence that the appellant was a ship owner and the rigs navigated through the compulsory pilotage districts when in fact they were towed into Nigerias cargoes. He stated that under Section 12(4) of the Customs and Excise Management Act, the duty to call at a port was that of the vessel owner not the appellant that chartered the vessel. He insisted that the judgment was perverse. He cited Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360; FBN Plc v Ozokwere (2013) LPELR – 21897 (SC); Archibong v. State (2004) 1 NWLR (Pt.855) 510.

For the respondent, learned counsel argued that the respondent proved that the appellant was liable to pay the pilotage dues based on exhibits B3-B6 (653-693). He claimed that it was proved that the vessel, chartered by the appellant, passed through the compulsory pilotage districts established under the Compulsory Pilotage District (Establishment) Order, 1996. He added that the appellant admitted it engaged its engineers/experts to discharge the rigs contrary to the provisions of Offshore Cargo Handling and Operations Stevedoring Charges Regulations, 2010.

He explained that the appellant did not dispute exhibit D2

(728-729) which appointed Vista Maritime Company Limited as Stevedoring contractor for the area the rigs were discharged. He noted that the provision of Section 12 (4) of the Customs and Excise Management Act was irrelevant as it was not considered by the lower Court.

Issue three.
Learned appellant’s counsel contended that the burden was on the respondent to prove that the vessel passed through the compulsory pilotage districts as it was on affirmative assertion. He relied on Imonikhe v. Unity Bank Plc (2011) 12 NWLR (Pt. 1262) 644; Section 135 of the Evidence Act, 2011. He stated that the lower Court was wrong to hold that it was proved. He cited Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310. He reasoned that the lower Court wrongly relied on evidence elicited from PW2’s cross-examination on Bonny River channel, that was not based on pleaded facts. He refered to Ita v. Ekpenyong (2001) 1NWLR (Pt. 695) 587; Onwumere v. Agwunedu (1987) 3 NWLR (Pt. 62) 673.

On the side of the respondent, learned counsel submitted that the burden of proof was on the appellant under Section 135 of the Evidence Act, 2011. He said that the appellant, failed

to discharge the burden when it could not provide the coordinates its offshore locations in Calabar and the movement of the its chartered vessel. He asserted that the lower Court rightly relied on the evidence elicited from the PW2’s cross-examination. He cited Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Haruna v. K.S.H.A (2010) 7 NWLR (Pt. 1194) 605.

He reproduced the respondent’s submissions, which were not countered by the appellant before the lower Court.

Issue four.
Learned appellant’s counsel submitted that the lower Court failed, contrary to the law, to consider and pronounce on all the issues raised before it. He relied on Ayeni v. State (2016) LPELR – 40105 (SC); UNICAL v. Akintunde (2013) 3 NWLR (Pt. 1340) 25. He took the view that the lower Court did not consider exhibits B3-B5 – pilotage chits which caused it a miscarriage of justice. He added that it speculated on their contents contrary to the law. He cited Mohammed v. Abdulkadir (2008) 4 NWLR (Pt.1076) 111. He opined that the lower Court’s finding on charter party was misconceived as it was not in issue and no demand for it was made. He referred

to Section 167(d) of the Evidence Act, 2011, definition of withholding of evidence in BLACK’S LAW DICTIONARY, 9th edition; Kareem v. State (2014) LPELR – 24415. He postulated that the lower Court wrongly relied on Jallco Ltd v. Owoniboys (1995) 4 NWLR (Pt. 391) 534 as an authority for what it decided. He cited Tanko v. State (2009) 4 NWLR (Pt. 1131) 430.

For the respondent, learned counsel argued that the lower Court considered and pronounced on all the issues before it. He referred to pages 12- 14, 22 and 27 of the judgment. He maintained that the appellant in its final address urged the lower Court to discountenance exhibits B3 – B5. He persisted, in the alternative, that the lower Court considered them as shown at pages 18, 21 and 22 of its judgment. He concluded that charter party agreement was in issue and the appellant was subpoenaed to produce it but it failed to do so.

Resolution of the issues.
It is germane to place on record, upfront, that a myriad of documentary evidence were furnished before the lower Court by the feuding parties. Interestingly, the case-law gives the Courts the nod to evaluate documentary

evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, seeGonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. I will tap from this co-ordinate jurisdiction in the appraisal of the army of documents in the appeal. Having been adequately fortified by the above inelastic position of the law, I will proceed

to resolve the four nagging issues in this appeal.

For the sake of orderliness, I will attend to the issues in their numerical sequence of presentation by the parties. To this end, I will kick start with the treatment of issue one. The hub of the issue, which is seemingly knotty, is plain. It chastises the lower Court’s finding that the appellant was liable to pay the pilotage dues when their rigs were towed by a vessel chartered by it.
The lower Court staked its finding on the provision of Sections 63 (2) (a) and (b) and 127 of the NPA Act. Being the cynosure of this issue, l will pluck them out from where they are ingrained in the Act, ipsissima verba, as follows:
“(2) The following persons shall be liable to pay pilotage dues and rates charged on a ship under Section 62 of this Act –
(a) The master or owner of the vessel;
(b) In the case of pilotage inward, every consignee or agent who has paid or made himself liable to pay any dues on account of the ship in its ports of arrival or discharge.
Section 127
““ship” includes any ship, vessel, tug, lighter, canoe or boat of any kind

whatsoever, whether propelled by steam or otherwise towed;”
These provisions are disobedient to ambiguity. On this score, the law compels the Court to accord them their ordinary grammatical meanings without any interpolation, see Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606; PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205; Kawawu v. PDP (2017) 3 NWLR (Pt. 1553) 420; Setraco (Nig) Ltd. v. Kpaji (2017) 5 NWLR (Pt. 1558) 280; Adeokin Records v. MCSCN (2018) NWLR (Pt. 1643); Ecobank v Honeywell Flour (2019) NWLR (Pt. 1655) 55. It is discernible from the phraseology/wordings of the provision of Section 127 of the NPA Act, displayed above, that rig (drilling rig) is not mentioned as one of the constituents of a ship.
However, independent of counsel’s assistance, l took an excursion into another legislation. It is the Admiralty Jurisdiction Act, Cap. A5, Laws of the Federation of Nigeria, (LFN), 2004. In its interpretation section/provision, Section 25 thereof, it provides:
“ship” means a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved and includes-
(a) a barge, lighter

or other floating vessel, including a drilling rig;
(b) a hovercraft;
(c) an off-shore industry mobile unit;
and
(d) a vessel that has sunk or is stranded and the remains of such vessel, but does not include a vessel under construction that has not been launched.
My consultation with the Admiralty Jurisdiction Act, to ferret for the connotation of a ship, has the blessing of the law. In C.C.B v. A-G, Anambra State (1992) 10 SCNJ 137 at 163 and 164, the oracular Nnaemeka – Agu, JSC (of the blessed memory), insightfully and incisively declared:
What then does ’privatisation’ mean in the context? Admittedly, the word was not defined in the Decree itself…. The second, which is equally relevant in this case, is that it is quite legitimate to interpret an instant statute under construction by reference to other earlier statutes in the same group of legislation in order to determine the course and content of the legislation under consideration…. In the instant case, it is of material significance that before the Companies and Allied Matters Decree was promulgated the Federal Military Government with

effect from 2nd January, 1990, the same legislator had, on the 5th of July, 1988, passed the Privatisation and Commercialisation Act… (Cap. 369) of [LFN] 1990 in which the ‘privatisation’ was defined….I should be guided by this definition in my construction of the word ‘privatisation’.
To begin with, the NPA Act, which is bereft of the signification of a ship, and the Admiralty Jurisdiction Act, which expounded its purport, fall within the four walls of kindred enactments/statutes. The reason is not far-fetched. Both are orbit around maritime which relates to sea navigation or commerce. On the footing of this relationship, the law grants me the unbridled licence to reap the import of a ship from the Admiralty Jurisdiction Act. The provision of the Admiralty Jurisdiction Act, in its interpretation provision of Section 25 thereof, has clearly and expressly, catalogued a drilling rig as one of the constituents of a ship.
It is trite, and elementary law, that where/once words or expressions in the provisions of a statute have been legally or judicially defined their ordinary meaning will definitely give way to their

legally or judicially defined meanings in accord with the doctrine of judicial precedent/stare decisis, see Acme Builders Ltd v. K.S.W.B(1999) 2 SC 1(1999) 2 NWLR (Pt. 590) 288, Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 332; Shettima v. Goni (2011) 18 NWLR (Pt. 127) 413; A.-G. Fed. v. A.-G., Lagos State (2013) 16 NWLR (Pt. 1380) 249; Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 5915; Utomudo v. Mil. Gov., Bendel State (2014) 11 NWLR (Pt. 1417) 97. Thus, the law commands the word “rig” to take up the meaning of a ship which has been statutorily assigned to it and, de jure, drops/shed its erstwhile technical or ordinary meaning it had owned or paraded before. A fortiori, the statutory definition of a ship, which is accorded to the rig by legislation, drowns the Jack-up rig assigned to it by the appellant’s witness, PW1. This is more so as a witness does not interpret words for the Court, see Yadis (Nig) Ltd v. G.N.I.C Ltd (2007) 14 NWLR (Pt. 1055) 584.
The appellant commended to this Court the case of C.D.C (Nig) Ltd v. SCOA (Nig.) Ltd (2007) 6 NWLR (Pt.1030) 300 at 360 and 361 where Ogbuagu, JSC, observed: “rig is described a large

structure that is used for looking for oil and gas and for taking it out of the ground or the sea”. The appellant implored the Court to apply, willy-nilly, the decision in C.D.C (Nig.) Ltd v. SCOA (Nig.) Ltd. (supra). In the first place, the description is an apposite function of a rig in contradistinction to its nomenclature. In keeping with the dictate of the law, I have read the decision with the finery of a tooth comb. The facts of that case are, totally, incompatible/disharmonious with those of this appeal. The importance of facts in determination of cases cannot be over emphasised. Facts are the forerunners and arrowhead of the law. They act like magnets with the potential to, completely turnaround the fortune or misfortune of a case. In the Roman days of the law, they were couched as: Ex facto oritur jus – law has its offspring on the fact, see A.-G., Anambra State v. A. – G., Fed. (2005) 131 LRCN 235 at 2426/(2005) 9 NWLR (Pt. 931) 572 at 638 – 639, Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 365. The ancient doctrine of stare decisis, which was invented to ensure certainty in law, and which should compel me to apply C.D.C. (Nig.) Ltd. case,

thrives where facts of cases are in pari materia. It is lame where the facts of cases are not on all fours. Since the facts of the two cases are distinguishable, the law does not grant me the nod to kowkow to the decision in C.D.C. (Nig.) Ltd. case. I am therefore impelled by law to decline the appellant’s inviting supplication on the footing of facts differential.
In the interest of clarity, the pith of the appellant’s case is that the two rigs were carried, via a chartered vessel, as cargoes from Cameroon to Nigeria. It is decipherable from the crux of its case, that it was their consignee-one to who goods are consigned/transferred to. That brings it within the ambit of the provision of Section 63 (2) (b) of the NPA Act supra. Since the law has crowned the two rigs with the toga of a ship and the appellant was their consignee, it was liable to pilotage dues on the manner ordained by sacrosanct provisions of Sections 41 and 100 of the NPA Act.
In the light of this legal anatomy of the provisions of Sections 63 (2) (a) and (b) and 127 of the NPA Act, the lower Court’s findings, that the rigs were ships and the

appellant their consignee, with the concomitant port charges attributable to them, are unassailable. It will smell of judicial sacrilege to interfere with findings that have not disclosed any hostility with the law. In the end, I will not hesitate to resolve the issue one against the appellant and in favour of the respondent.

Having dispensed with issue one, I proceed to settle issues two and four. A clinical examination of the two issues, clearly reveals that they are intertwined and share a common mission: to emasculate the lower Court’s evaluation of evidence before it. Given this interwoven judicial relationship, I will, in order to conserve the scarce judicial time and space, amalgamate them and fuse their considerations. The kernel of the conjoined issues is plain. They quarrel with the manner the lower Court evaluated the evidence. Put bluntly, the appellant accused the lower Court of improper evaluation of evidence because the judgment was against the weight of evidence.

To start with, a castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the

decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR

(Pt. 1202) 412.

522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635;Onyekwuluje v. Animashaun (supra). I have matched the decision of the lower Court with the positions of law x-rayed above with a view to identifying their infractions or compliance.

The appellant’s agitations have quartet facets. One of the foremost grouses is against the lower Court’s proclamation that the rigs were ships within the maritime hemisphere. I had, under issue one, dealt in extenso with the point. I, ultimately, reached a finding that a rig is a ship which is in consonance with the lower Court’s finding. There are no extenuating circumstances, furnished before this Court by the appellant, that will propel me to upset/disturb the solemn finding reached in due fidelity to the letter and spirit of the law. On this premise, on the basis of spatial constraint, l import, propagate and adopt my reasoning and conclusion under issue one here. In effect, the lower Court’s finding, that the rigs were ships, was not offensive to the law as to be guilty of improper evidential

evaluation.

The other grudge, nursed by the appellant, appertains to the lower Court’s finding that the rigs navigated through the compulsory pilotage districts. I have, in due loyalty to the dictate of the law, visited the record: the spinal cord of every appeal. My port of call is the residence of the evidence of the parties which monopolise pages 641 – 647, 714 and 715, 724 – 727, 384 – 391, 448-452, 473 – 478 and 547 – 554 of the mountainous record. There are pieces of concrete evidence that the vessel that towed the rigs to the appellant’s offshore location and the offshore supply vessels navigated through the compulsory pilotage districts established under the Compulsory Pilotage Districts (Establishment) Order, 1996 made pursuant to the provision of Section 41 of the NPA Act. In fact, in the furnace of cross-examination, PW1, the appellant’s star witness, at page 450, volume II, of the record, admitted that “The supply vessels go by sea to the rigs at offshore”. Again, in the heat of cross-examination, the PW1, at page 448, volume II, of the record responded that the appellant’s

engineers and experts discharged the rigs at its offshore location. The latter was a gross defilement of the provisions of the Offshore Cargo Handling and Operations Stevedoring Charges Regulations, 2010 as those engineers and experts, unjustifiably, usurped the function of Vista Maritime Company Limited, the Federal Government approved Stevedoring contractor, as evidenced in exhibit D2. The products of these questions, are in the eyes of the law, evidence. Those pieces of evidence, elicited under the cross-fire of cross-examination, are potent and run pari passu with the ones from evidence-in-chief, see Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338. They belong to the cross-examiner, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. As a matter of fact, the law views evidence procured/elicited from the crucible of cross-examination as more reliable and compelling than the ones oozing out of examination-in-chief, see Adeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt.1291) 581; Okuleye v. Adesanya (2014) 12 NWLR(Pt.1422) 321.

Thus, by the appellant’s own showing, through its witnesses,

the towing vessel and the offshore supply vessels made use of the compulsory pilotage districts without any authority or licensed pilot as decreed by Section 42 of the NPA Act. By virtue of Section 42 (2) of the NPA Act, ship being moved within the port shall be deemed to be a ship navigating in the pilotage district. Exhibits B12 and B13 were certificates of clearance issued by Custom Excise Nigeria on 3rd February, 2012 and 21st of February, 2012 for Noble Tom Craighead and Noble Lloyd Noble respectively. They colonise pages 716 – 719, volume II, of the huge record. The Noble Lloyd Noble and the Noble Tommy Craighead were brought into Nigeria in May and November, 2011 respectively. Exhibits B12 and B13 were issued months after the berthing of the two rigs, not even contemporaneously with their arrival. What a paradox! Since exhibits B12 and 13 were posterior to the arrival of the rigs their efficacy/effervescence in favour of the appellant was castrated vis-à-vis their legitimate clearance. It stems from these that the lower Court was firma terra in law when it found that the appellant’s rigs navigated through the compulsory pilotage

districts without pilotage.

The other accusation is erected on the allegation that the lower Court did not consider exhibits B3 – B5, the pilotage chits, but rather speculated on their contents. I have given a microscope examination to the lower Court’s judgment, which is in the heat of expunction/decimation, wrapped between pages 731-757, volume II, of the wordy record. The lower Court gave due consideration to those exhibits as can be gleaned from page 752, volume II, of the record. In the sight of the law, speculation connotes “… a mere imaginative guess which even when it appears plausible should not be allowed by a Court to fill any gap in the evidence before it”, see Olalomi Ind. Ltd. v. N.I.D.B. Ltd. (2009) 16 NWLR (Pt. 1167) 266 at 304, per Adekeye, JSC. The law forbids a Court of law from indulging in speculation, see Uwagboe v. State (2008) 12 NWLR (Pt. 1102) 621; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Jitte v. Okpulor (2016) 2 NWLR (Pt.1497) 542; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87. Amazingly, the appellant starved this Court of any classic evidence of how the lower Court embraced speculation in

the interpretation of those documents. I am unable, even with the prying eagle-eye of a Court, to locate any debilitating elements of speculation vis-à-vis the lower Court’s consideration of those exhibits B3- B5. In essence, the charges of want of consideration and speculation levelled against the decision is a pseudo-allegation. It is uncharitable and unsustainable.

The last charge is hedged on the lower Court’s declaration on the appellant’s failure to produce the charter party agreement. The lower Court, rightly in my view, treated the charter party agreement as a fact relevant to the fact in issue. This is because the marrow of the appellant’s case was that it chartered the vessels that towed the rigs. Contrary to the submission of the appellant’s counsel, the appellant was given the ample opportunity to produce the charter party agreement even under the command of subpoena duces tecum but it failed. The appellant’s case is, principally, built on jus tertti, id est, that it was the chartered vessels that would be responsible for payment of the pilotage dues. A production of a charter party agreement between

it and the chartered vessels would have exculpated the appellant and incupalated the owners of the hired vessels. The appellant failed to furnish the lower Court with the charter party agreement. The lower Court was right, in my humble view, to have deployed the provision of Section 167 (d) of the Evidence Act, 2011 against the appellant’s case. To my mind, the lower Court did not insult the law in its pronouncement on the charter party agreement and the caustic effects of its absence on the appellant’s case. This second allegation on the charter party agreement, like the first one, is disabled from its birth. It cannot fly.

The appellant stigmatised the lower Court’s decision as perverse. Since perversion is the epicentre of the point, it is imperative to x-ray its purports for easy appreciation. A verdict of Court is perverse when: it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt.

836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna (2008) NWLR (Pt. 1114) 427; Onykwelu v. Elf Pet (Nig.) Ltd. (2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179, Adeokin Records v. M.C.S.N. (Ltd)/GTE)(supra); Mamonu v. Dikat (2019) 7 NWLR (Pt 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467.
Now, the lower Court’s judgment, sought to be impugned and ostracised, is pasted at pages 731 – 757, volume II of the record: the touchstone of the appeal. I have subjected it to a clinical scrutiny. I have in total allegiance to the desire of the law, situated the judgment, sought to be expelled with the elements of perverse decision adumbrated above. The raison d’etre behind the juxtaposition is simple. It is to discover if the judgment is marooned in

the ocean of perversity. The judgment of the lower Court, which is rebellious to equivocation, is not antithetical to the pleadings and evidence presented before it by the feuding parties. At the same time, the lower Court did not import alien/foreign matters into the judgment. It utilised the evidence the parties presented before it as catalogued above. The finding does not, in the least, smell of any charge of perversity levelled against it by the appellant.

In the light of this juridical survey, conducted in due consultation and obeisance to the law, the lower Court did not fracture the law to make its finding guilty of the allegation/accusation of perfunctory evaluation of evidence preferred against it by the appellant. The lower Court’s finding is in tandem with the law and, ipso facto, unimpeachable. To this end, I must dishonour the learned appellant’s counsel’s salivating invitation to crucify the decision on the undeserved altar of improper evaluation of evidence. As a result, I have no choice than to resolve the conflated issues two and four against the appellant and in favour of the respondent.

That takes me to the treatment of issue three. The focus of the issue is simple. It queries who, as between the appellant and the respondent, had the burden to prove that the vessels, which towed the rigs, passed through the compulsory pilotage districts. The contending parties projected diametrically opposed views. While the appellant disowned the burden, the respondent assumed an opposite stance as it disclaimed it.
By way of prefatory remarks, the term a burden of proof, which is ubiquitous in adjudication, signifies: “the duty which lies on one or other of the parties either to establish a case or to establish the facts upon a particular issue”, see Okoye v. Nwankwo (2014) 15 NWLR (Pt. 1429) 93 at 133, Per Muhammad, JSC. The law divides it into two categories: the legal burden of proof and the evidential burden of proof. The former, which bears other appellations: persuasive burden, probate burden, ultimate burden, the burden of proof on pleadings or the risk of non-persuasion, propounded by Philipson on Evidence, 11th Edition (Sweet and Maxwell) page 125, rests on party who asserts the existence of facts. The Latin version of it is: qui affirmat

non a qul negat incumbat probat, see C.P.C. V. INEC (2011) 18 NWLR (Pt. 1279) 493 at 540. The latter oscillates between parties in a case depending on the assertion in the pleading. It is settled that a party who makes a positive/affirmative assertion is laden with the arduous burden of proving it. Contrariwise, a party that makes a negative assertion carries no burden of proof. This doctrine, burden of proof on affirmative or negative assertion, is an offspring of the old Roman jurisprudence and encapsulated in the Latin maxim: “incumbit probatio qul dicit, non quit negat — the burden of proving of a fact rests on the party who asserts the affirmative of the issue and not upon the party who denies it — for a negative is usually incapable of proof”, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205, per Nweze, JSC; Sections 131 — 133 of the Evidence Act, 2011, Elemo v. Omolade (1968) NMLR 356 at 361; Lewis & Peat (NRI) Ltd. v. Akhimien (1976) 10 NSCC 360 at 365; Vulcan Gases Ltd. v. Gesellschaft Fur Ind. (2001) 9 NWLR (Pt. 719) 610; Imana v. Robinson (1979) 3 — 4 SC I at 9; Onyenge v. Ebere 18 NSCQR (Pt. 1078);

Ewo v. Ani (2004) 3 NWLR (Pt. 861) 610; Olaiya v. Olaiya (2002) 12 NWLR (Pt. 782) 652; Akande v. Adisa (2012) 15 NWLR (Pt. 1324) 538; Okoye v. Nwankwo (supra); Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Amadi v. Amadi (2017) 7 NWLR (Pt. 1563) 108. In the glaring presence of this settled position of the law, who had the burden of proof as between the parties?
It is rudimentary law, that averments in pleadings of the parties are the proper barometer to gauge/measure the location of burden of proof in an action, see Imana v. Robinson (supra); Amadi v. Amadi (supra). In total obedience to the dictate of the law, I have given a clinical examination to the pleadings, the statement of claim and statement of defence, of the litigating parties. In this regard, I subjected each to a holistic consideration, in order to garner the gist of each party’s case, as ordained by the case-law, see Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1; Agi v. PDP (2017)17 NWLR (Pt. 1595)366.
Now, the heart of the appellant’s case, deducible from its pleading, is that its two rigs were towed by hired vessels and did not pass through the compulsory pilotage district.

The nucleus of the respondent’s case, as can be garnered from its pleading, is that the vessels navigated through the compulsory pilotage district to the appellant’s offshore location. Put simply, while the appellant’s assertion is in the realm of negative, that of the respondent falls squarely, within the domain of positive assertion.
It stems from the hallowed principle of law, displayed above, that the onus probandi resided in the respondent which asserted the positive. In the adjectival law, negative assertion does not attract any burden of proof as sanctioned by the ex cathedra authorities chronicled above. In consequence, the lower Court, with due reverence, treated the law with disdain and contempt when it allocated the burden of proof to appellant. It is firmly settled law, that wrong apportionment of burden of proof will smack of miscarriage of justice, see Onobruchere v. Esegine (1986) 1 NWLR (Pt. 190) 799; PHMB v. Ejitagha (2000) 11 NWLR (Pt. 677) 154; Ewo v. Ani (2004) 3 NWLR (Pt. 861) 610. Nevertheless, the appellant has only scored a barren/pyrrhic victory in the above finding as will be unveiled anon.

The stubborn question, which begs for an answer, is: did the respondent discharge that burden of proof saddled on it by law? The evidence-in-chief of the respondent’s only and star witness, DW1, admitted as exhibit D1, occupies pages 724 – 727, volume 11, of the elephantine record. He testified therein that the vessels towed the rigs and the two rigs entered and left the compulsory pilotage districts without pilotage by the respondent. The witness was subjected to a rigorous cross-examination by the appellant’s counsel as showcased at pages 549-554, volume II, of the windy record. It is startling that, the appellant’s counsel, in his infinite wisdom, failed/neglected to cross-examine the witness on the critical and decisive point. The object of cross-examination is to test the credibility of an opponent’s case, see Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460. Indisputably, cross-examination occupies a kingly position in our adversarial system of adjudication. It has been described as a “noble art” which “constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the

opposing party”, see Oforlete v. State (2000) 3 NSCQR 243 at 268 per Achike, JSC. Indeed, if well utilised, it has the potential to perforate an opponent’s case. It is settled law, that where a party fails to cross-examine a party on a point, he is deemed to have admitted it, see Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 181) 338; Nwokocha v. A.-G, Imo State (2016) 8 NWLR (Pt. 1513) 141. Thus, the dire consequence of the appellant’s neglect to cross-examine DW1 on the crucial piece of evidence is an undiluted admission of it. It flows that the appellant’s failure to cross-examine the witness on the pungent evidence, which snowballed into admission, punctures their learned counsel’s seemingly alluring submission on the point.
My noble Lords, in the mind of the law, admission connotes a statement, oral or documentary, made by a party which suggests an inference as to any fact in issue or relevant fact, see Section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588. It “is a concession or

voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola(2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497 542; Cole v. Jibunoh (2016)

4 NWLR (Pt. 1503) 499; Orianzi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A & FC v. Johnson (2019) 2 NWLR (1656) 247.
By dint of that absolute admission, the appellant, without any nudge/prompting, conceded that the hired vessels and the rigs went through the compulsory pilotage districts of the respondent. The lower Court, acting ex debito justitiae, merely endorsed the admission which, in the province of the law, binds the appellant. The appellant’s counsel neglected, to the peril of the appellant’s case, the imperative of cross-examination. It is the template with which to assess the truth of evidence-in-chief of witnesses. The veracity of a witness under examination-in-chief is tested by the evidence elicited from him in the crucible of cross-examination. Curiously, the appellant disarmed itself of the necessary “lethal weapon”, in the form of cross-examination, which it would have harnessed, through the advocative prowess and dexterity of counsel, to counter the damaging and dismal evidential

effects of DW1’s evidence. The net effect of the foregoing is clear. The respondent proved that hired vessel and the rigs navigated through the compulsory pilotage districts of the respondent. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227. In all, all the diatribes, which the learned senior counsel for the appellant poured on the finding of the lower Court, pale into insignificance. In sum, l resolve the issue three against the appellant and in favour of the respondent.

By way of obiter, pilotage due is one of the veritable sources of revenue to the Federal Government of Nigeria. The respondent uses it, inter alia, to actualise its principal functions, videlicet: to maintain, improve and regulate the use of ports, ensure territorial waters of Nigeria are seaworthy/navigable, salvage life and property on the vessels in the high seas. Thus, the pilotage due

will be on hand to lubricate national and international sea trade which will, ultimately, boost the Nigerian economy. In essence, the due is essential and fundamental in the maritime industry/sector of the economy. Evasion of its payment, by liable parties, is an unhealthy economic attitude that will erode the sustenance of the Nigerian economy. It must, in deserving circumstances, be discouraged!

On the whole, having resolved the four issues against the appellant, the destiny of the appeal is obvious. It is bereft of a grain of merit and deserves the reserved penalty of dismissal. Consequently, I dismiss the appeal. I affirm the judgment of the lower Court delivered on 11th December, 2015. The parties shall bear the respective costs they expended in the prosecution and defence of the doomed appeal.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother OBANDE FESTUS OGBUINYA, JCA and I adopt the judgment as mine with nothing further to add.

EBIOWEI TOBI, J.C.A.: I have been afforded the privilege of reading in

draft the leading judgment of my learned brother, Obande Festus Ogbuinya, JCA., and I am in agreement with my lord on the conclusion reached therein. I have nothing more to add.

Appearances:

Mojisola Jaiye-Gbenle, Esq. For Appellant(s)

Ame Ogie, Esq. For Respondent(s)