THE OWNERS OF THE MV “MSC AGATA? & ANOR v. NESTLE NIGERIA PLC & ANOR (2012)

THE OWNERS OF THE MV “MSC AGATA? & ANOR v. NESTLE NIGERIA PLC & ANOR

(2012)LCN/5449(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 5th day of June, 2012

CA/L/807M/09

RATIO

SERVICE: SERVICE OF WRIT OUT OF JURISDICTION: THE APPROPRIATE PROCESS TO BE FOLLOWED

“No writ which or notice of which is to be served out of the jurisdiction shall be issued without leave of the court.”
Section 98 of the Sheriffs and Civil Process Act also provide thus:
“A writ of summons for service outside the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such State or Capital Territory and shall in that case be marked as concurrent.”
Order 13 Rule 12 states as follows:
“Where service is to be made upon a person residing out of, but carrying on business within, the jurisdiction in his own name or under the name of a firm through an authorized agent, and the proceeding is limited to a cause of action which arose within the jurisdiction, the writ or other document may be served by giving it to the agent, and the service shall be equivalent to personal service.”
It is clear from the above that Order 13 Rule 12 of the Rules clearly refers to the service of a writ. It only dispenses with the need to seek and obtain leave to serve a defendant who resides outside jurisdiction where the defendant has an authorized local agent within the jurisdiction of the court. By no stretch of the imagination can Order 13 Rule 12 be interpreted to mean that the need to apply for leave to issue a concurrent writ of summons where one of the defendants resides outside jurisdiction has been dispensed with.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

SERVICE: THE SERVICE OF ONE OF THE DEFENDANTS IN AN ACTION OUTSIDE JURISDICTION

Where there are more than one defendants in an action and one of these resides outside jurisdiction and the other or others reside within jurisdiction, as is in this case, the law is settled on what the Plaintiff should do. Section 98 of the Sheriffs and Civil Process Act provides that a writ of summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such State or Capital Territory and shall be marked as concurrent. See Mako v. Umoh (2010) 8 NWLR Pt. 1195 Pg. 82.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

RULES OF COURT: RULES OF COURT ARE NOT MERE RULES BUT PARTAKE OF THE NATURE OF SUBSIDIARY LEGISLATION

In MV “Arabella” v. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR Pt. 1097 Pg. 182 at Pg. 205 – 206, it was held thus:
“It is now firmly settled that Rules of Court are not mere rules, but they partake of the nature of subsidiary legislations by virtue of Section 18 (1) of the Interpretation Act and therefore have the force of Law. See the case of AKANBI & ORS v. ALAO (1989) 5 SCNJ 1 @ 10. That is why Rules of Court, must be obeyed. This is because and this is also settled that when there is non-compliance with the Rules of Court, the Court should not remain passive and helpless. There must be a sanction otherwise the purpose of enacting the Rules will be defeated…In others words, rules of court are not only meant to be obeyed, they are also binding on all parties before the court.”
See also Agip (Nig.) Ltd. v. Agi Petroli Int’l supra; Oyegun v. Nzeribe (2010) 7 NWLR Pt. 1194 Pg. 577; Mako v. Umoh supra. Thus, where by a rule of court, the doing of an act or taking a procedural step is a condition precedent to the hearing of a case, such rule must be strictly adhered to.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

CONDITION PRECEDENT: NON COMPLIANCE WITH A CONDITION PRECEDENT: EFFECT

SERVICE OF WRIT OUTSIDE JURISDICTION: WHAT IT ENTAILS

Before a writ can be served on a defendant who resides outside jurisdiction, it must be endorsed and leave must be obtained. Where the originating process is to be endorsed, but served without being so endorsed, the service is voidable and can be set aside at the instance of the Defendant served with the process and who has not waived her right. This is without prejudice to the competence of the suit as constituted. See Famfa Oil Ltd. v. Attorney General of the Federation (2003) 18 NWLR Pt. 852 Pg. 453; Owners of the MV “Arabella” v. NAIC supra; Mako v. Umoh supra.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

SERVICE OF WRIT BY SUBSTITUTED MEANS: REQUIREMENTS

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

Between

1. THE OWNERS OF THE MV “MSC AGATA?
2. COMET SHIPPING AGENCIES NIG. LTD Appellant(s)

AND

1. NESTLE NIGERIA PLC
2. APM TERMINALS Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of Hon. Justice Charles Efanga Archibong sitting at the Federal High Court, Lagos Division delivered on the 4th of May 2009. The facts that led to the appeal are as follows:
The Plaintiff, now 1st Respondent commenced an admiralty action at the trial court on the 23rd of February, 2007 via a writ of summons and statement of claim against 1st Defendant now 1st Appellant, the 2nd Defendant, now 2nd Appellant and the 3rd Defendant, now 2nd Respondent claiming damages for breach of a contract of affreightment for the non-delivery of two containers numbered GSTU 651256/6 and GSTU 897803/9 which were shipped on board the said vessel from Antwerp, Belgium to Apapa Port, Lagos, Nigeria.
Upon service of the writ of summons and statement of claim on the 1st and 2nd Defendants (now Appellants), the Appellants filed a Motion on Notice dated 30th of October, 2008 praying the court for an order striking out and/or setting aside the writ of summons and/or the service thereof on them on the grounds of failure to obtain prior leave of court to issue and/or serve the said writ of summons.
Issues were joined by parties on the said motion. The trial court then delivered its ruling dated 4th of May 2009 in which it refused the application to strike out the writ of summons or set aside the service thereof on the Appellant. Being dissatisfied with the ruling, the Appellants have hereby appealed to this court.
Appellants’ brief dated 21st of May, 2010 was filed on the 24th of May, 2010. Appellants’ reply brief to the 1st Respondent’s brief was dated and filed on the 7th of July, 2010. 1st Respondent’s brief was dated and filed 17th of June, 2010.
Appellants’ counsel, Olakunle Yusuff Esq., identified four (4) issues for determination as follows:
1. Whether the lower court could assume and exercise jurisdiction over the Plaintiff/1st Respondent’s claim when it is apparent that the issuance and the service of the Writ thereof on the Appellants one of whom is outside the jurisdiction of the court are void ab initio as same was done without prior leave of court
2. Whether the Plaintiff/1st Respondent’s action which did not name any vessel as party thereto is an action in rem?
3. Whether the purported substituted service of the 1st Appellant (who is ordinarily resident outside the jurisdiction of the Court) through the 2nd Appellant, Messrs Comet Shipping Agencies Nig Ltd at the time of the issue of the writ aforesaid was proper service?
4. Whether the provisions of Section 97 and 99 of Sheriff and Civil Processes Act, cap 407 Laws of the Federation of Nigeria LFN, 2004 are applicable to the Federal High Court?
On the other hand, counsel to the 1st Respondent, V.H. Izah Esq. identified a sole issue for determination as follows:
“Whether service of the Writ of Summons on the Second Appellant, Comet Shipping Agencies Nigeria Ltd, as local agent to the First Appellant, The Owners of The MV MSC Agata was proper service, and therefore leave to issue and serve the Writ of Summons on the First Appellant though ordinarily resident outside jurisdiction of the court was not required.”
Counsel to the 2nd Respondent, Yomi Alagbada submitted that his client is a nominal party and as such filed no briefs.
I have observed that most of the Appellants’ issues, though worded differently, refer to the same issue. Issues 1, 3 and 4 are indeed addressing the same issue to wit whether the issuance and subsequent service on the Appellants of the writ of summons was proper. I have thus consolidated the issues as follows:
1. Whether the issuance and service of the writ of summons on the Appellants was proper
2. Whether the Plaintiff/1st respondent action at the trial court is an action in rem
ISSUE ONE
Appellants’ counsel argued that the trial court lacked jurisdiction to adjudicate in this matter because the issuance and service of the writ of summons on the Appellants was not in accordance with the applicable laws governing the issuance and service of writ outside jurisdiction. Counsel submitted that the basic or fundamental principle of law is that a court must be competent in order for it to adjudicate on any matter referred to it and that any defect in competence will render the whole proceedings a nullity. He cited Madukolu v. Nkemdilim (1962) 2 SCNLR 341
As regards the issuance of the writ, Counsel argued that in this case, prior leave of the court was needed to issue and serve a writ of summons on a party who is out of jurisdiction, but this was neither sought nor obtained. Counsel pointed out that the rules regulating service outside jurisdiction is governed by Order 6, Rule 12 (1) of the Federal High Court (Civil Procedure) Rules, 2000 and Section 97 and 99 of the Sheriff & Civil Process Act, Cap 407, LFN 1990. Counsel pointed out that issuance and service of writs, though interrelated are two distinct conditions that must be fulfilled before a court can assume jurisdiction over any matter. Counsel cited Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR Pt. 109 Pg. 250 at 265; Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR Pt. 1097 Pg. 182 at Pg. 206. Counsel then submitted that the 1st respondent having failed to seek and obtain the leave of the court to issue the Writ on the Appellants outside the jurisdiction of the Federal High Court violated the whole proceedings in the suit. He cited NEPA v. Onah (1997) 1 NWLR Pt. 484 Pg. 680; NPA v. Eyamba (2005) 12 NWLR Pt. 939 Pg. 409; Odu’a Investment Ltd v. Talabi (1997) 10 NWLR Pt. 523 Pg. 1 at Pg. 51. Counsel further argued that failure to comply with the provisions of Order 6 Rule 12 (1) of the Rules is a fundamental vice which goes to the issue of jurisdiction. Counsel contended it is not a matter of mere cosmetic importance which can be waived off with levity. He cited Odofin v. Agu (1992) 3 NWLR Pt. 229 Pg. 350 at 373; NNPC v. Elumah (1997) 3 NWLR Pt. 492 Pg. 195 at 204; Carribean Trading & Fidelity Corporation v. NNPC (1992) 7 NWLR Pt. 252 Pg. 161 at 180; Kida v. Ogunmola (2006) 13 NWLR Pt. 997 Pg. 377 at 394.
Counsel further submitted that rules of court are meant to be obeyed and where there is non-compliance, the court cannot afford to standby and watch but must sanction the party in default. He cited Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation (supra) at Pg 205 – 206.
As regards service, Counsel submitted that service of process is an integral part of Nigerian procedural law. Counsel contended that proper service is a condition precedent to the commencement of an action, without which a court cannot properly assume jurisdiction. Counsel pointed out that even though the 1st Respondent purportedly served the 1st Appellant by substituted service through the 2nd Appellant, the record shows clearly that no leave for substituted service to serve the 1st Appellant outside jurisdiction through the 2nd Appellant was ever obtained. Counsel contended that since the 1st Appellant is a business entity carrying on business outside the jurisdiction of the Federal High Court, the 1st Respondent ought to have obtained leave of the court before service of the writ on it. Counsel cited AGIP (Nig.) Ltd vs. AGIP Petroli Int’l & Ors in Re: Chief C. Ezendo & Ors (2010) 5 NWLR Pt. 1187 Pg. 348 at 390
Counsel submitted that the proper procedure was for the 1st Respondent to issue a concurrent writ for service after obtaining the requisite leave to issue and serve same on the 1st Appellant. Counsel submitted that the requirement for leave to issue and serve a writ involving a foreign defendant under Section 98 of the Sheriffs and Civil Process Act, LFN 2004, cannot be avoided by merely serving same on an agent within jurisdiction. Counsel then contended that in any event, since the issuance of the writ as aforesaid is void ab initio, subsequent service of it, is null and void. He relied on Macfoy v. UAC (1961) 3 All ER 1169; Nzom v. Jinadu (1987) 1 NWLR Pt. 51 Pg. 533; Yarkwa v. Shallangwa (1996) 4 NWLR Pt. 443 Pg. 489 at 497 – 498.
On the other hand, counsel to the 1st Respondent contended that there was no need to obtain the leave of the court to issue and effect service of a writ of summons on the first appellant since it was clear from page 3 of the Bill of Lading (See page 8 of the record), that the 2nd Appellant is the agent of the 1st Appellant. Counsel argued that by the provisions of Order 13 Rule 12 of the Federal High Court (Civil Procedure) Rules, a plaintiff can commence an action without requiring leave of the court to issue and serve a writ on a foreign principal who is outside the jurisdiction of the court but who has a local agent who can accept service on its behalf. Order 13 Rule 12 states as follows:
“Where service is to be made upon a person residing out of, but carrying on business within, the jurisdiction in his own name or under the name of a firm through an authorized agent, and the proceeding is limited to a cause of action which arose within the jurisdiction, the writ or other document may be served by giving it to the agent, and the service shall be equivalent to personal service.”
Counsel pointed out that the loss of the 1st Respondent’s goods, the subject matter of the substantive suit at the trial court took place at Apapa Port which is within the jurisdiction of the trial court and the 2nd Appellant has a registered office at 4, Balogun Bisi Omidiora Street, Apapa, Lagos, also within jurisdiction. Counsel submitted that as such the provision of the above law applies. Counsel cited Scanoil Incorporation v. Chelsea Maritime Ltd. & Anor, Nigerian Shipping Cases, Volume 3, 1987-1990 Page 247; Noma Enterprises Limited v. Columbia Glory, Nigerian Shipping Cases Vol. 3, 1987-1990 Pg. 300 at Pg. 305; Solar Dawn Shipping Limited v. Sector Navigation Co. and Others, Suit No. FHC/PH/CS/113/2006
Counsel pointed out that the cases of Nepa v. Onah (1997) 1 NWLR Pt. 484 Pg. 680; Owners of the MV “Arabella” v. NAIC (2008) 11 NWLR Pt. 1097 Pg. 182 and Agip (Nig.) Ltd v. Agip Petrol International & Ors (2010) 5 NWLR Pt. 1187 Pg. 348 were totally misconceived by the Appellants as none relates to the issuance and service of a writ on a foreign entity with an agent residing within the jurisdiction of the issuing court.
Counsel also pointed out that the argument of the Appellants that the trial court was wrong in holding that the Sheriffs and Civil Process Act does not apply to the Federal High Court stems from a misunderstanding of the ruling of the trial court. Counsel contended that nowhere in the ruling did the trial judge say that the Act is not applicable to the Federal High Court. All the trial court did was hold that Sections 97 and 98 of the Act are not applicable to this particular suit.
Counsel submitted that the Appellants Issues 1, 3 and 4 are lacking in merit and as such should be discountenanced.
There are 3 main questions to be determined before this issue can be effectively resolved. They are:
1. Is leave of court required to issue originating processes involving a defendant residing outside the jurisdiction of the Federal High Court?
2. Is leave also needed to effect service on a defendant who resides outside jurisdiction by substituted means?
3. What are the laws applicable to the issuance and service of processes at the Federal High Court?
The major question here revolves around the issue of whether a Plaintiff needs to apply for leave of court to issue and serve originating processes outside the jurisdiction of the Federal High Court. It is clear that Order 6 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules and indeed Section 98 of the Sheriffs and Civil Process Act make it mandatory for leave to be obtained before the issuance of a writ of summons involving a defendant who resides outside the jurisdiction of the Court and for endorsement of the writ for service outside jurisdiction. In Agip (Nig.) Ltd. v. Agi Petroli supra, the Supreme Court held as follows at page ***:
“By virtue of Order 6 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules, 2000, no writ which, or notice of which, is to be served out of the jurisdiction shall be issued without leave of the court. For a party to comply with the provision of the rule, the party must apply for the requisite leave before the issuance and service of the writ of summons.”
Counsel to the Respondent had contended however that Order 13 Rule 12 dispenses with the requirement to obtain leave to issue or serve originating processes on a defendant who resides outside jurisdiction in certain circumstances. Let us consider the rules applicable here. Order 6 Rule 12 (1) states as follows:
“No writ which or notice of which is to be served out of the jurisdiction shall be issued without leave of the court.”
Section 98 of the Sheriffs and Civil Process Act also provide thus:
“A writ of summons for service outside the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such State or Capital Territory and shall in that case be marked as concurrent.”
Order 13 Rule 12 states as follows:
“Where service is to be made upon a person residing out of, but carrying on business within, the jurisdiction in his own name or under the name of a firm through an authorized agent, and the proceeding is limited to a cause of action which arose within the jurisdiction, the writ or other document may be served by giving it to the agent, and the service shall be equivalent to personal service.”
It is clear from the above that Order 13 Rule 12 of the Rules clearly refers to the service of a writ. It only dispenses with the need to seek and obtain leave to serve a defendant who resides outside jurisdiction where the defendant has an authorized local agent within the jurisdiction of the court. By no stretch of the imagination can Order 13 Rule 12 be interpreted to mean that the need to apply for leave to issue a concurrent writ of summons where one of the defendants resides outside jurisdiction has been dispensed with.

I agree with learned Appellants’ counsel that failure to comply with the provisions of Order 6 Rule 12 (1) of the Rules and Section 98 of the Sheriffs and Civil Processes Act is a fundamental vice which goes to the issue of jurisdiction and renders the issuance of such writ void. In Carribean Trading & Fidelity Corporation v. NNPC (1992) 7 NWLR Pt. 252 Pg. 161 at 180, the Court of Appeal stated thus:
“…failure to obtain leave is prejudicial to the party in default. In NWABUEZE & ANOR v. JUSTICE OKOYE (1988) 4 NWLR (PT.91) 664, the Supreme Court held that failure to obtain leave before issuing writ of summons out of jurisdiction is not mere irregularity but a fundamental defect which goes to the question of the competence and jurisdiction of the court.”
See also Otti v. Mobil Oil Nig. Ltd (1991) 7 NWLR Pt. 206 Pg. 700

Rules of court and indeed statutory provisions regulating the commencement of an action must be obeyed. Rules of Court are part of the machinery of justice evoked by the courts to regulate their proceedings. They have the same force of law as subsidiary legislations. In MV “Arabella” v. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR Pt. 1097 Pg. 182 at Pg. 205 – 206, it was held thus:
“It is now firmly settled that Rules of Court are not mere rules, but they partake of the nature of subsidiary legislations by virtue of Section 18 (1) of the Interpretation Act and therefore have the force of Law. See the case of AKANBI & ORS v. ALAO (1989) 5 SCNJ 1 @ 10. That is why Rules of Court, must be obeyed. This is because and this is also settled that when there is non-compliance with the Rules of Court, the Court should not remain passive and helpless. There must be a sanction otherwise the purpose of enacting the Rules will be defeated…In others words, rules of court are not only meant to be obeyed, they are also binding on all parties before the court.”
See also Agip (Nig.) Ltd. v. Agi Petroli Int’l supra; Oyegun v. Nzeribe (2010) 7 NWLR Pt. 1194 Pg. 577; Mako v. Umoh supra. Thus, where by a rule of court, the doing of an act or taking a procedural step is a condition precedent to the hearing of a case, such rule must be strictly adhered to.

I re-iterate that non-compliance with a condition precedent is not a mere technical rule of procedure, it goes to the root of a case and robs the court of jurisdiction. Proper issue of writ and proper service of it are conditions precedent for the exercise of the court’s jurisdiction over the subject matter in dispute. See Ben Obi Nwabueze v. Justice Obi Okoye (1988) 4 NWLR Pt. 91 Pg. 664.
It is thus my humble view that the leave should have be obtained before the originating process at the trial court was issued and failure to do this renders the whole process and proceedings at the trial court null and void.
Where the issuance of a writ is faulty, by consequence the service of such a defective writ is also faulty and as such the service of the invalid writ is also invalid. I will however delve a little into the issue of service of a writ on a defendant that resides outside jurisdiction.
It is trite that issuance and service of processes are two distinct legal procedures in civil litigation, though they are both involved in the process of putting the other party on notice. A writ might be valid while its service may suffer from some defect. However, once the issuance is invalid, service of the invalid writ is also invalid. See Adegoke Motors v. Adesanya (1989) 3 NWLR Pt. 109 Pg. 250; Nwabueze v. Okoye supra; Agip (Nig.) Ltd. v. Agi Petroli Int’l supra; Mako v. Umoh supra.

It is also settled that where a writ is to be served by substituted means, leave of court must be obtained. This is however different from where the plaintiff wishes to serve the defendant by substituted means through an agent residing within jurisdiction. Order 13 Rule 12 (1) referred to by the learned Respondent’s counsel comes into play here. It allows for a defendant resident outside the jurisdiction of the court to be served through its authorized local agent and deems such service personal service. In this case, since the service on the local agent is seen as personal service, leave to serve by substituted means is no longer necessary. In any case, as earlier noted, the issue of service here is irrelevant since I have held that the issuance of the writ is faulty ab initio.
Learned Appellants’ counsel had argued that the trial court had held that the Sheriffs and Civil Process Act does not apply to the Federal High Court. I cannot help but agree with learned Senior Counsel for the Appellant that contrary to the conclusion of the trial court that the Sheriffs and Civil Process Act does not apply to the Federal High Court, non-compliance with the provisions of Sections 97 & 99 of the Sheriffs and Civil Process Act renders the issuance and service of the Writ of Summons incompetent and deprives the court of jurisdiction. See Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC 6; Nwabueze v. Obi okoye (1988) 4 NWLR Pt. 91 Pg. 644. In fact, section 2 of the Act provides that the word “court” is defined in that Act to include a High Court and a Magistrate Court and that since the Federal High Court is a High Court, the provisions of the Act are applicable to it. I am of the firm view that in so far as services of processes outside jurisdiction are concerned, the Act is the applicable legislation and any service that does not comply with the provisions of the Act shall be invalid.

It is also my view as contended by Appellant’s senior counsel that the provisions of the Admiralty Jurisdiction Act 1991 do not constitute procedural rules regulating the issuance and service of writs in admiralty actions since it is a substantive law simpliciter. The applicable procedural laws are the Federal High Court (Civil Procedure) Rules and the Admiralty Jurisdiction Procedure Rules, 1993. None of these dispenses with the need to seek and obtain leave to issue a writ outside jurisdiction.
I have read the ruling of the learned trial judge and I am of the view that all that was said was that the provisions of the Act do not apply in this particular case. It has been settled that the Act applies to the Federal High Court as well as State High Courts. Neither the Federal High Court Act nor its rules expressly or otherwise exclude the provisions of the Sheriffs and Civil Process Act. Let counsel not whip up an imaginary clash between the Federal High Court Act and the Sheriffs and Civil Process Act. Be that as it may, the Judgment Enforcement Rules (adjectival law) made pursuant to the Sheriff & Civil Process Act (substantive law) is a special legislation on the subject matter which must be interpreted as superior to general legislation which is the Federal High Court Rules. Obedience to the Rules for service is crucial to the prosecution of an action in court. See Owners of the MV “Arabella” v. NAIC supra
The learned trial judge, with the greatest respect, was wrong because His Lordship had based his conclusion on the erroneous finding that the leave of the court to issue a writ of summons to be served on a defendant who resides outside jurisdiction was not necessary in this case because the 2nd Appellant, who is also the agent of the 1st Appellant resides within jurisdiction. As I have earlier held, this is wrong. If the issuance of the writ is defective, the subsequent service on the agent, a proper recipient of such service is also defective.
The first issue is resolved in favour of the Appellant.
ISSUE TWO
This is the 2nd issue as identified by the Appellants’ counsel to wit whether the Plaintiff/1st Respondent’s action which did not name any vessel as party thereto is an action in rem. Counsel to the Appellants submitted that the trial court erred in law and fact when it held that the suit before it was an action in rem and as such the provisions of the Sheriffs and Civil Processes Act are not applicable. Counsel submitted that Section 2 (3) (f) and 5 (4) of the Admiralty Jurisdiction Act, 1991 which the trial judge placed reliance on merely depicts the general jurisdiction of the Federal High Court on maritime claims particularly when an action in admiralty in rem or in personam may be brought, but does not provide for the procedure to be adopted in an admiralty case. Counsel further contended that Section 5 (4) only defines a person against whom an action in rem may be brought in admiralty claims under section 2 and is limited to actions brought against a ship or a sister ship. Section 5(4) provides thus:
“An action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought against –
(a) That ship, if at the time the action is brought the relevant person is either the beneficial owner of that ship in respect of all the shares in it or the charterer of the ship under a charter by demise; or
(b) Any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner in respect at all the shares in the ship.
Counsel further contended that the action being against persons and not against the vessel itself is an action in personam. Counsel cited Rhein Mass Undsee GMBH v. Rivway Lines Ltd (1998) 5 NWLR Pt. 549 Pg. 265 at 281; Nigerian Ports Authority v. Panalpina (1973) 5 SC 77 at 96-97. Counsel submitted that it is settled law that where the words of a statute are clear, the Court should refrain from reading into it any extraneous matter. Counsel cited M.F. Kent (WA) Ltd v. Martchem Ind Ltd (2000) 8 NWLR Pt. 669 Pg. 459 at 473; AG Federation v. Abubakar (2007) 10 NWLR Pt. 1041 Pg. 1 at 144-145.
In response, counsel to the 1st Respondent submitted that the classification of the suit as an action in rem by the trial judge does not detract from the substance of the ruling which is that a local agent can accept service of a writ of summons aimed at its principal out of jurisdiction.
This issue in my view and indeed the ground of appeal it was distilled from amounts to no issue at this stage of the trial. The classification of the action as an action in personam or as an action in rem has no bearing on the ruling of the court as regards the application before it. Sections 96 – 98 of the Sheriffs and Civil Processes Act do not distinguish between an action in rem and an action in personam.
Having said this, it is settled that the court of appeal should take pains to address all issues submitted before it for determination as long as they arise from valid grounds of appeal.

The Blacks’ Law Dictionary, 9th Edition defines an action in personam as:
“An action in personam is an action brought against a person rather than property. Thus an in personam judgment is binding on the judgment debtor and can be enforced against all the property of the judgment debtor. The action in personam is where the named defendant is a natural or legal person.”

The dictionary also defines action in rem as An action determining the title to property and the rights of the parties, not merely among themselves, but also against all persons at any time claiming an interest in that property. It is usually an action brought for the protection of possession, ownership or other real rights in immovable property. It is one in which the named defendant is real or personal property.

In Rhein Mass Und See GMBH v. Rivway Lines Ltd. supra, Ogundare JSC turned his attention to this issue of the definition of “action in rem” and “action in personam”. He held as follows at page 277-278:
“Defining the expression “action brought against a person, an action in personam, Coker J.S.C. delivering the judgment of this court in Nigerian Ports Authority v. Panalpina (1973) 5 SC. 77 at Pp. 96-97; (1973) ANLR 408, 422 observed:
“Etymologically an action in personam is an action brought against a person, an action to compel to do or not to do a particular thing or take or not to take a particular course of action or inaction. Actions for damages in tort or for breaches of contract are clearly directed against the person as opposed to actions which are brought for the purpose of declaring or challenging status, like proceedings under the matrimonial laws of the country or of legitimacy or an admiralty action directed against a ship or the res (and so known as an action in rem) or the like. Generally, therefore, all actions which are aimed at the person requiring him to do or not to do or to take or not to take an action or course of conduct must be and are actions in personam.”
And in Anchor Ltd v. The Owners of the ship Eleni 1 PSC 14, 15; Nigerian Shipping Cases Vol. 1 p. 42, Foster Sutton FCJ defined “action in rem” as follows:
“An action in rem is one in which the subject matter is itself sought to be affected, and in which the claimant is enabled to arrest the ship or other property, and to have it detained, until his claim has been adjudicated upon, or until security by bail has been given for the amount, or for the value of the property proceeded against, where that is less than the amount of the claim.” It follows that plaintiff’s cause of action is one enforceable in rem. In my respectful view, the fact that this cause of action can be enforced by action in personam where plaintiff proceeds, as in this case, against the defendant, owner of the vessels concerned in the joint venture agreement, would not alter the nature of the cause of action. See R v. Judge of City of London Court (1892) 1 QB273, 295 where Lord Esher, M.R. observed –
“If there is a collision between two ships on the high seas, that the Admiralty Court has jurisdiction to deal with the liability of the owners of those ships is true, and it can exercise that jurisdiction either by action in rem or by action in personam. Given the jurisdiction, the question whether the action is to be in rem or in personam is one of mere procedure.”
That being so, the conclusion I reach is that the cause in this case is one enforceable in rem.”
Ogwuegbu JSC also gave a very elucidating definition of both phrases. His Lordship explained at page 281 of the NWLR as follows:
“This brings me to the definition of action in rem and action in personam. An action in rem is a piece of legal machinery directed against a ship alleged to have been the instrument of wrongdoing in cases where it is sought to enforce a maritime or statutory lien or in a possessory action against the ship whose possession is claimed. A judgment in rem is a judgment good against the whole world. Thus does not mean that the vessel is the wrong doer but that it is the means by which the wrongdoer (its owner) has done wrong to some other party. It is the means by which the wrongdoer is brought before the court as a defendant. It is an accepted legal theory that an action in rem is procedural. The purpose is to secure the defendant owner’s personal appearance.
An action in personam is directed against the person at fault and is dependent entirely upon the plaintiff being able properly and effectively to serve a summons on the defendant in connection with the legal complaint against the defendant particularly where the parties are in different jurisdictions. Therefore, the maritime shipping industry contains within its sphere the concept of legal action available to an injured party through the machinery of the Admiralty jurisdiction which allows, under certain clearly defined circumstances, the vessels to be sued in rem. An action in rem can be concluded by a judgment in rem. The shipowner may take part in the proceedings if he considers it appropriate to defend his property. It is essentially an action against his property (in rem) not against him.
Thus, it can be seen that the distinction between action in rem and action in personam is procedural only. Except in certain claims, the same cause of action may give rise to both actions depending on which action the plaintiff initiates having regard to the procedural difficulties involved.”

It is clear to me that whether the claimant herein proceeded by an action in rem or in personam, the cause of action can give rise to a claim against the owners of the vessel or the vessel itself. In this case, the vessel is no longer available, within the jurisdiction of the court and the only way to invoke the jurisdiction of the court is by proceeding against the Appellants in personam as the claim indicated. Let us remember that the Plaintiff’s claim against the Defendants was for:
“The Plaintiff’s claim against the Defendants is for the sum of =N=24,808, 817 (Twenty-four million, Eight Hundred and Eight Thousand, Eight Hundred and Seventeen Naira, Fourteen kobo) being damages for the breach of contract of affreightment and/or duty and/or bailment and/or negligence by the Defendants their servants or agents for non-delivery of two (2) Containers shipped on board the Vessel MV MSC Agata.”
The learned trial judge held at Pg. 91 of the Record as follows:
“An action in rem may be brought whether or not the claim gives rise to a maritime lien on a vessel; in a situation where for instance the relevant person (s), such as the Owners of MV MSC Agata, are claimed against for goods carried by their vessel, IF AT THE TIME THE ACTION IS BROUGHT THE RELEVANT PERSON IS…THE BENEFICIAL OWNER OF THAT SHIP IN RESPECT OF ALL THE SHARES IN IT.”
I cannot bring myself to agree that in the circumstances of this case, considering that there is nothing in the claim of the Plaintiff which suggests a maritime lien or other charge on the vessel MV MSC Agata. There is no salvage involved, damage is not claimed to have been done by the vessel named and the issues do not involve the wages of the master or member of the crew to ground a claim in rem. On this issue, I am of the view that the claim was an action in personam. The second issue is resolved in favour of the Appellant.
This appeal is allowed. The ruling of the learned trial judge in suit no. FHC/LCS/178/2007 delivered on 4/5/09 is hereby set aside. The writ of summons is hereby struck out. I hereby award N=30,000 costs to the Appellant against the Respondents.

JOHN INYANG OKORO, J.C.A.: I had the privilege of reading in advance the judgment of my learned brother, Ogunwumiju, JCA just delivered and I agree that this appeal has merit and should be allowed. I adopt both the reasoning of my learned brother in the lead judgment and the conclusion thereof as mine and hold that this appeal be and is hereby allowed by me. I abide by all the consequential orders made in the lead judgment, that relating to costs, inclusive.

SIDI DAUDA BAGE, J.C.A.: I have been given the privilege before now of reading through the draft of the judgment just delivered by my learned brother OGUNWUMIJU JCA. I am in total agreement with him that the appeal should be allowed and also abide by the consequential order made in the lead judgment.

Appearances

Olakunle Yusuff Esq.For Appellant

AND

V.H. Izah Esq. – For the 1st Respondent
Yomi Alagbada – For the 2nd RespondentFor Respondent