THE VESSEL MT SAM PURPOSE (EX MT. TAPTI) & ANOR v. BAINS & ORS
(2021)LCN/15628(CA)
In The Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, March 05, 2021
CA/LAG/CV/419/2020
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
1. THE VESSEL MT SAM PURPOSE (EX MT. TAPTI) 2. OWNERS OF THE VESSEL MT. SAM PURPOSE (EX MT. TAPTI) APPELANT(S)
And
1. AMARJEET SINGH BAINS 2. MANINDER SINGH 3. KAUSHIK BRAHAMDER 4. PUNEET KUMAR 5. DURGESH KUMAR 6. RAJENDER SINGH 7. EXCELSIA SHIPPING (INDIA) PRIVATE LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS A PLANTIFF’S CLAIM THAT DETERMINES THE JURISDICTION OF A COURT
The above being said, it is a general principle of law that the primary determining factor of jurisdiction is the Plaintiff’s claim in relation to the Constitution and the statutory provisions that established the Court. In FEDERAL GOVERNMENT OF NIGERIA VS. OSHIOMOLE (2004) 3 NWLR (PT. 860) 305, the Supreme Court held as follows:
“It is the claim before the Court, particularly the reliefs being sought by the Plaintiff that determines the jurisdiction of the Court. Thus, in determining whether or not the Court has jurisdiction over the subject matter before it, the materials to consider are the Statement of Claim, the Writ of Summons and the particulars of claim where they are filed along with the Writ of Summons.”
Also in the case of ABDULRAHEEM VS. OLORUNTOBA- OJU (2006) 15 NWLR (PT. 1003) 581, this Court held that:
“It is a fundamental principle that jurisdiction is determined by the plaintiff’s claim. It is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the Court. In other words, in determining whether a Court has jurisdiction in a matter or not, the Court will examine or consider the writ of summons and statement of claim. Thus, when a Court’s jurisdiction is challenged…, it is only better and safer for that Court to look at the writ of summons and statement of claim to decide for itself whether it has jurisdiction or not. This is because, only the claims or reliefs donate jurisdiction to the Court. Therefore, the Court is not allowed to look elsewhere apart from the writ of summons and statement of claim.” PER GUMEI, J.C.A
THE POSITION OF LAW ON WHERE THERE IS ANY INCONSISTENCY BETWEEN THE CONSTITUTION AND ANY ACT OF THE NATIONAL ASSEMBLY
However, the position of the law is apt that where there is any inconsistency between the Constitution and any Act of the National Assembly, the Constitution shall prevail. In the case of OKEKE VS. SECURITIES AND EXCHANGE COMMISSION & ORS (2013) LPELR-20355 (CA), it was held thus:
“As the ultimate grundnorm, the 1999 Constitution, as amended is undoubtedly supreme, and takes over and above all other enactments in this country. Thus, if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail. And that other law shall, to the extent of the inconsistency, be void. See Section 1 (3) of the 1999 Constitution, as amended (supra).”
Since the decision in BALEWA V. DOHERTY (1963) 2 SCNLR 15, the Supreme Court of Nigeria has remained fully determined and consistent in its interpretation and application of Section 1 (3) of the 1999 Constitution, as amended and its pari materia equivalents in the 1963 and 1979 Constitutions that the Constitution of our Country is a living document that speaks for itself. The apex Court has also remained dogged that the Constitution, being the grundnorm is superior to all laws and any law that is inconsistent with its provisions remains null, void and of no effect to the extent of the inconsistency. In recent times, the Supreme Court has been deciding so many cases in line with this vintage and ever-green constitutional law principle or norm. See for example,ATT. GEN. OF ABIA STATE & 35 ORS V. ATT. GEN. OF THE FED. (2002) 6 NWLR (PT. 763) 264, ATT. GEN. ONDO STATE V. ATT. GEN FEDERATION (2002) 9 NWLR (PT. 772) 222 at 310 and FASAKIN FOODS (Nig) LTD V. SHOSANYA (2006) LPLER 1244 (SC). 46.
In other words, the Constitution of the Federal Republic of Nigeria is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. Therefore, if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be void. See the case of ITSUELI & ANOR VS. SEC & ANOR (2011) LPELR-4343 (CA). PER GUMEI, J.C.A
THE DUTY OF THE COURT WHERE THE PROVISIONS OF THE CONSTITUTION OR STATUTE ARE CLEAR AND UNAMBIGUOUS
It is settled that where provisions of the Constitution/Statute are clear and unambiguous, the Court has a duty to apply and give effect to such provisions. See the cases of C. C. C. T. S. VS. EKPO (2008) 33 NSCQR 1146, 1181; (2008) 6 NWLR (PT. 1083) and ABEGUNDE VS. ONDO STATE HOUSE OF ASSEMBLY (2015) 8 NWLR (PT. 1461) 314, 371-372. PER GUMEI, J.C.A
THE POSITON OF LAW ON THE PERVERSE FINDING OF A COURT
In the case of ADEBIYI VS. STATE (2016) 8 NWLR (PT. 1515) 459, 474, the Supreme Court held:
“A Court’s finding is said to be perverse if, inter alia it took into account certain matters which it ought not to have considered or where it shut its eyes to the obvious or proved facts etc … “
A perverse decision is a nullity and ought to be set aside. See generally the cases of C. D. C. (NIG.) LTD VS. SCOA (NIG.) LTD (2007) 6 NWLR (PT. 1030) 300, 340-341; CORPORATE IDEAL INS. LTD VS. AJAOKUTA STEEL CO. LTD (2014) 7 NWLR (PT. 1405) 165, 212 and MUOMAH VS. SPRING BANK PLC (2009) 3 NWLR (PT. 1129) 553, 576. Thus, the misapprehension of facts and/or law by the learned trial Judge has resulted in perverse decision. PER GUMEI, J.C.A
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Lagos Division delivered on 22nd May, 2020 in Suit No. FHC/L/CS/1365/2017, Coram Judice: Faji, J.
The Respondents herein were the plaintiffs before the Federal High Court and they sought for the following reliefs against Defendants/Appellants jointly and severally. They are:-
(a). The sum of US $53,097.51 (Fifty Three Thousand and Ninety Seven United States Dollars, Fifty one cents) being crew wages due and owed the 1st–6th plaintiffs as crew and/or seamen that faithfully and diligently performed their duties on board MT SAM PURPOSE;
(b). The sum of US $5,000 (Five Thousand United States Dollars) being the cost of Admiralty Marshal expenses, cost of arrest and detention of the vessel;
(c). The sum of US $5,000 (Five Thousand US Dollars) as general damages; and
(d). Interest at the rate of 21% on the above sum from 16th October, 2015 until judgment and thereafter upon liquidation.
Upon filing the writ of summons and statement of claim as an in rem action on 8th September, 2017, as is customary in admiralty actions, the Plaintiffs/Respondents also filed an ex–parte motion seeking for the following 3 main reliefs thus:
“1. An order arresting and/or detaining the vessel MT. Sam Purpose (Ex MT Tapti) lying at Lagos Anchorage or any other place she may be found within the jurisdiction of this Honourable Court pending the provision of a satisfactory bank Guarantee from First Bank Ltd. or Zenith Bank Plc by the Defendants to secure the Plaintiff’s claim for the sum of $63,097.51 USD (Sixty Three Thousand and Ninety–seven United State Dollars, Fifty–one cent) as endorsed on the Writ of Summons and Statement of Claim.
2. An order directing the Admiralty Marshal to seek the assistance of the Chief of Naval Staff, Nigerian Navy particularly the FOC, Western Naval Command or the Officer-in-charge NNS Beecroft and/or the Force Marine officer, Nigeria Police Force, Awolowo road, for assistance to detain the vessel MT Sam Purpose (Ex Mt Tapti) and her appurtenances lying at Lagos Anchorage or anywhere within the territorial jurisdiction of the Honourable Court.
3. An order directing the Admiralty Marshal to seek the assistance of the Director General of Nigerian Maritime Administration & Safety Agency (NIMASA) for assistance to detain the vessel MT. Sam Purpose (Ex MT Tapti) and her appurtenances lying at Lagos Anchorage or any other place within the territorial jurisdiction of this Honourable Court pending the determination of this suit.”
The motion was supported by an 18 paragraph affidavit with so many copious documents attached as Exhibits and a written address. At a hearing of the lower Court on the 8th September, 2017, prayers 1 and 2 on the motion were granted in terms.
The Defendants/Appellants entered a conditional appearance on 29th June, 2018 and also filed a motion on notice pursuant to Order 3 Rule 5, Order 6 Rule 13 (g), Order 14, Order 26 Rules 2, 3 and 11, Order 48 Rule 4 and Order 51 Rule 2 of the Federal High Court (Civil Procedure) Rules 2009, Sections 36 and 254 (c)(1) (A) and (K) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Order 10 Rule 1 and Order 21 (1) of the Admiralty Jurisdiction Procedure Rules, 2011 and under the inherent jurisdiction of the Court. The motion sought for the following 3 reliefs thus:
“i. An order extending the time within which the Applicants may apply to discharge, vacate or set aside the arrest order of the vessel – MT SAM PURPOSE (Ex MT Tapti) – made by this Honourable Court on 8th September, 2017.
ii. An order discharging, vacating or setting aside the order arresting the vessel – MT SAM PURPOSE (Ex MT Tapti – made by the Honourable Court on 8th September, 2017.
iii. An order striking out this suit in its entirety.”
The motion was supported by 15 grounds and a 25 paragraph affidavit with series of documents attached as exhibits and a written address. Upon being served with the motion, the Plaintiffs/Respondents responded and joined issues on it in a 12 paragraph counter–affidavit and a written address. The Defendants/Appellants further joined issues in a further affidavit in support and also reply filed a reply on points of law.
During the proceedings of the lower Court on 18th May, 2020, the motion of the Defendants/Appellants was argued. Respective learned counsel to the parties identified, adopted and relied on their filed and exchanged processes to argue the motion and the matter was adjourned for ruling. In its ruling, the lower Court found no merit in the application and proceeded to dismiss it.
The Defendants/Appellants were dissatisfied with the ruling and appealed to this Court in a notice of appeal dated and filed on 28th May, 2020. It contains 12 grounds of appeal with copious particulars.
To argue the appeal, learned counsel to the Appellants filed a brief of argument on 2nd July, 2020. The Respondents’ brief was filed on 10th August, 2020 and it was deemed properly filed on 8th December, 2020. The reply brief of the Appellants was also deemed on 8th December, 2020. Learned counsel to the Appellants Dr. Olanipekun SAN formulated and argued 6 issues for determination in this appeal.
The 6 issues for determination are:
1. Having regard to the relevant provisions of Section 254C (1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) (Constitution), when considered against the backdrop of Respondents’ claim as endorsed on their Statement of Claim, whether the trial Court was not in grave error in dismissing the Appellants’ application dated 29th June, 2018 and assuming jurisdiction over the Respondents’ claim. (Grounds 1 and 5)
2. Whether the trial Court was not in grave error in applying the provisions of Section 91 of the Labour Act to assume jurisdiction over the Respondents’ claim, without considering and applying the provisions of Section 254C (1) of the Constitution. (Grounds 4, 6 and 7)
3. Whether the trial Court ought not to have been bound by and followed the decisions of the Court of Appeal in John v Igbo-Etiti L. G. A. (2013) 7 NWLR (Pt. 1352) 1, 17; Sunday Ainabebholo v Edo State University Workers Farmers Multi-purpose Co-operative Society & Ors (2015) LPELR-24513 (CA) 34; and First Bank of Nigeria PLC v Mr. Nurudeen Ajani Akanji (2017) LPELR–43555 (CA) and the decision of the Federal High Court in Suit No.: FHC/L/CS/1807/17 – Assurance foreningen Skuld (Gjensidig) v MT Clover Pride & Anor. (Grounds 2 and 3)
4. Whether the learned trial Judge was not in grave error and wrong in assuming jurisdiction over the Respondents’ claim, when he held that no leave of Court was required to issue and serve the Writ of Summons on the 2nd Appellant. (Ground 8)
5. Considering the non-service of the Respondents’ originating processes on the 2nd Appellant, whether the learned trial Judge was right to have assumed jurisdiction over the Respondents’ claim (Grounds 9, 10 and 11)
6. Having regard to the exclusivity of the jurisdiction of the National Industrial Court over the Respondents’ claim vis-a-vis the defects/failures in issuance and service of the Respondents’ originating processes, whether the learned trial Judge was not in grave error in falling to discharge, vacate and/or set aside the order the 1st Appellant made on 8th September, 2017. (Ground 12)”
However, according to learned counsel Mrs. Obinna – Madu who settled the Respondents’ brief, there are only two issues for determination in this appeal. She formulated them thus:
“1. Whether the Respondents cause of action commenced as an action in rem as provided under Section 251 (1) (g) of the 1999 Constitution as amended and Section 2 (3)(r) and Section 3 of the Admiralty Jurisdiction Act LFN 2004 which is predicated on a general maritime claim and secured by maritime lien falls under the jurisdiction of the national industrial Court as provided under Section 254c(1)(k) of the 1999 Constitution of the Federal Republic of Nigeria (grounds 1, 4 & 5)
2. Whether service of the Respondents originating processes and order of arrest and detention of the vessel mt. Sam purpose (ex Tapti) (obtained at the lower Court) on the Appellants on 21st of September, 2017 by the bailiffs was properly done in accordance with the provisions of the Admiralty Jurisdiction Procedure Rules and the Admiralty Jurisdiction Act (grounds 9, 10, 11 & 12)”
At the hearing of the appeal before us on 8th December, 2020, respective learned counsel adopted and relied on their filed and exchanged briefs of argument. While learned counsel Dr. Olanipekun SAN, on behalf of the Appellants urged on the Court to allow the appeal and set aside the ruling of the lower Court, Mrs. Obinna – Madu, who argued the appeal on behalf of the Respondents, urged on the Court to dismiss the appeal and affirm the decision of the lower Court.
Learned Counsel Dr. Olanipekun, SAN for the Appellant opted to argue issues 1 and 2 together, issues 4 and 5 also but issues 3 and 6 each separately. In arguing issues 1 and 2, the learned SAN, in an opening remark was bold to say that the lower Court failed to consider the provisions of Section 254 C (1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended against the backdrop of the claim of the Respondents as endorsed on their statement of claim. He added that this failure led to a serious error the consequence of which led the lower Court to dismiss the application of the Defendants/Appellants of 29th June, 2018 and also further to which it sought to assume jurisdiction to entertain the claim of the Respondents. According to Dr. Olanipekun SAN, the failure of the lower Court to consider and apply Section 254 C (1) properly also led it to further erroneously believe that Section 91 of the Labour Act was applicable to the facts and circumstances in the instant action. Having laid this foundation, the learned SAN explained that the Defendants/Appellants, by their application of 29/06/2018 challenged the jurisdiction of the lower Court to entertain the claim of the Plaintiffs/Respondents because its subject matter was outside its vires. While relying on the famous and ever green case of MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341, ISAH V. INEC (2016) 18 NWLR (PT. 1544) amongst other decided cases, learned Senior Counsel Dr. Olanipekun further explained that for a Court to assume jurisdiction and entertain a matter its subject matter must be stipulated to be so cognisable by the constitution or statute.
Sequel to the above preliminary remarks and explanations, Dr. Olanipekun SAN said that it is trite that to determine its jurisdiction and competence to entertain the claim in an action, a Court must examine it with a view to ascertaining if it properly and squarely fall within the provisions of the Constitution or the Statute establishing that Court. While also relying on the cases of TUKUR V. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 at 549, PDP V. SYLVA (2012) 13 NWLR (PT. 1316) 85 at 127, NNPC V. ORUKWO (2015) 10 NWLR (PT. 1468) 527 at 549 and SOCIETY BIC. SA V. CHARZIN IND. LTD (2014) 4 NWLR (PT. 1398) 497 at 536 etc, the learned SAN pointed out that with respect to trial Courts they must ascertain the subject matter of a claim as contained in the statement of claim and juxtapose same with the most relevant constitutional or statutory provisions in issue. With respect to the instant action, learned Counsel Dr. Olanipekun SAN explained that for the lower Court to assume jurisdiction in any action before it the subject matter of it must be within the ones envisaged and contemplated by the provisions of Section 251 (1) (a) to (s) of the 1999 Constitution, as amended and where a claim falls outside these provisions the lower Court must hands-off and decline jurisdiction. He then drew the attention of the Court to the claim of the Respondents and pointed out that it is predicated on employment disputes between the parties that arose from an alleged breach of terms of a contract of employment relating to payment of wages. Further, this the learned SAN reproduced the full text of Sections 254 C (1) (a) and (k) and argued that it is crystal clear that the claim of the Respondents can only be adjudicated by the National Industrial Court and not the lower Court. He cited the cases of MEDICAL and HEALTH WORKERS UNION OF NIGERIA V. EHIGIEGBA (2018) LPELR–44972 (CA) 32 and COCA COLA (NIG) LTD V. AKINSANYA (2017) 17 NWLR (PT. 1593) 74 at 129 to 130 to submit that the exclusive jurisdiction of the National Industrial Court over all labour related matters has been well established and settled by the Supreme Court and this Court.
Also, according to Dr. Olanipekun SAN, the admiralty jurisdiction of the lower Court as provided under Section 251 (1) (g) of the Constitution, Section 2 (3) (r) of the Admiralty Jurisdiction Act and Section 66 of the Merchant Shipping Act, (MSA) is subject to Section 254 C (supra) and Section 1 (3) of the Constitution. He further submitted that in so far as the provisions of any law, including Section 2 (3) (r) of the Admiralty Jurisdiction Act (AJA) and Section 66 of the MSA purport to confer jurisdiction in respect of wages and labour matters on the lower Court, these provisions must remain null and void to the extent of their inconsistency with the provisions of Section 254 C (1) of the Constitution, as amended. He then urged on the Court to hold that crew wages related to labour and employment matters as contemplated and envisaged by Section 254 (C) (supra) and therefore overrides Section 251 (1) (g) (supra).
While quoting page 359 of the record of appeal, as part of the ruling of the lower Court, in the instant appeal, Dr. Olanipekun SAN pointed out that the lower Court approbated and reprobated on the crucial question of whether the claim of the Respondents was within its competence and jurisdiction. He argued that it was wrong for the lower Court to invoke the provisions of Section 254 C (1) (a) and (b) and Section 91 of the Labour Act to oust the jurisdiction of the National Industrial Court and to proceed to erroneously assume jurisdiction over the claim of the Respondents. The Learned SAN went on to analyse the averments of the Respondents in the statement of claim and pointed out that they mainly relate to a purported employment and alleged outstanding wages. With respect to the reliefs being sought by the Respondents, Dr. Olanipekun SAN maintained that it is anchored on “wages due and owed”, and therefore in the context of this action, the claim has no bearing whatsoever with Section 254 (c) (1) (b) (Supra), rather the most relevant provisions, and appropriate in the circumstance, should be Section 254 (c) (1) (a) and (k) (supra). He urged on the Court to find and so hold that the provisions of Section 254 C (1) (a) and (k) cover and envisages any employee or worker. After reproducing the full text of Sections 254 C (1) (b) and some decided cases such asUNIVERSITY OF JOS V. IKEGWUOHA and YUSUF V. COMM. OF POLICE, LAGOS STATE (2000) 2 NSCQR 894 at 905, the learned SAN maintained that it is clear that these provisions, or even Section 91 of the Labour Act, has any bearing with the claim of the Respondents. He also urged on the Court to hold that these provisions are inapplicable and irrelevant to the determination of the application of the Appellants of 29th June, 2018.
In a further argument the learned SAN maintained that Section 254 C (1) (b) does not place any restrictions on the extent or scope of the exclusive jurisdiction of the NICN and therefore Section 91 of the Labour Act cannot be invoked, interpreted or applied to limit the application of Section 254 C (1) (b) (Supra). He urged on the Court to so hold.
In concluding his arguments on issues 1 and 2, Dr. Olanipekun SAN remarked that the lower Court misapplied the provisions of Section 254 C (1) (b) when it read it in isolation when what was required was a necessity or imperative for the entire Section 254 C to be read along with the Respondents’ claim. According to Olanipekun SAN, the lower Court misapprehended both the nature of the claim before it and the applicable constitutional and statutory provisions that determine its jurisdiction, leading to its decision being perverse. He relied on the case of ADEBIYI V. THE STATE (2016) 8 NWLR (PT. 1515) where the Supreme Court, at page 474 held thus:-
“A Court’s finding is said to be perverse if, inter alia it took into account certain matters which it ought not have considered or where it shut its eyes to the obvious or proved facts etc.”
While also relying on a number of decisions of this Court and the Supreme Court, the learned SAN submitted that the misapprehension of facts and/or the law by the lower Court led its decision being perverse and to the extent of perverse decisions being a nullity and liable to being set aside, he urged on the Court to so do and resolve issues 1 and 2 against the Respondents.
The first issue for determination formulated on behalf of the Respondents appears to be their answer to the first issue formulated and argued on behalf of the Appellants. And also because the 2nd issue formulated on behalf of the Appellants involves ground 4 of the grounds of appeal, the response of the Respondents on their issue one appears to also adequately formed a sufficient answer to the foregoing arguments of learned counsel Dr. Olanipekun SAN.
In arguing the Respondents’ case, learned counsel Mrs. Obinna – Madu opened and set the ball rolling by referring to and para–phrasing the provisions of Section 3 of the Admiralty Jurisdiction Act (AJA) and added that what allowed the lower Court to assume and exercise jurisdiction on the claim of the Respondents was the fact that the 1st Appellant was domiciled in Nigeria at the time they instituted their action. Further to this Mrs. Obinna–Madu, of counsel explained that the claim of the Respondents was a general maritime claim that was secured by a maritime lien that attached to the 1st Appellant. While commending Sections 67, 70 (1) and 75 of the MSA, 2007, Mrs. Obinna–Madu maintained that maritime liens attached to a ship notwithstanding any change in its ownership or registration. Learned counsel further cited Section 66 of the MSA and pointed out that wages of the Master or other officers of a ship are a secured maritime lien. In another effort, learned counsel explained that admiralty actions are sui generis and to that extent, they are not limited to only cases which arose within this Country alone. I do not see the relevance of paragraphs 4.4 to 4.6 at pages 4 to 5 of the Respondents’ brief of argument to the issues for determination in this appeal.
In paragraph 4.8 at page 5, for reason best known to her, learned counsel referred to an unreported decision of the Court below where it was held that Section 254 (1) (k) (supra) does not apply to a claim by crew members of a vessel on a voyage to Nigeria and whose crew members are not Nigerians. After this seemingly valueless exercise, learned counsel Obinna–Madu tried further to explain the nature and extent of the claim of the Respondents along with Section 254 C (1) (supra) maintain her position that the jurisdiction of the National Industrial Court of Nigeria (NICN) does not cover a claim for wages of crew members of a ship who are not Nigerians even while the ship is in Nigerian territorial waters. To further underscore the case of the Respondents, learned counsel copied paragraphs 1 to 7 and 10 to 11 of the statement of claim as an elucidation which she believed may have influenced the lower Court to decide as it did.
According to learned counsel the 1999 Constitution, as amended has incorporated matters under the Labour Act into Section 254 C (1) and therefore the former has become part of the latter and must be considered in construing it. Learned counsel added that in the construction of Section 254 C (1) (a) and (b) the Labour Act must be read along because it also provided for the jurisdiction of the NICN over workers. Learned counsel maintained that the jurisdiction of the NICN both under the Constitution and the Labour Act does not extend to adjudication on a claim for wages by members of crew of a vessel within the contemplation of the Merchant Shipping Act (MSA), 2007. Learned counsel also argued that Section 254 C (1) does not mention ships, foreigners or wages of crew members of a foreign vessel in Nigerian waters.
In conclusion learned counsel Mrs. Obinna–Madu relied on the case of JEGEDE V. AKANDE (2014) 16 NWLR (PT. 1432) 43 at 56 to emphasise that in the interpretation of the Constitution or statutes provisions which mention specific things, that the express mention or exclusion of one things excludes others not mentioned. Against the backdrop of this, learned counsel urged on the Court to resolve issues one and two formulated and argued on behalf of the Appellants in favour of the Respondents.
As a response on points of law, in the reply brief of the Appellants, the learned SAN pointed out that the suggestion of learned counsel to the Respondents that the Respondents, being foreigners, are not bound by the judgment of the NICN is a misconception. The learned SAN maintained that having elected to enforce their purported rights before a Nigerian Court they have at the onset agreed to be bound by the outcome of their legal action. Dr. Olanipekun SAN added that the constitution of the Federal Republic of Nigeria gives equal rights and protection to foreigners and Nigerians alike. While referring to a number of decided cases, Dr. Olanipekun SAN, argued and explained that a consideration of the clear unambiguous provisions of Section 254 C (1) (a) and (k) (supra) will reveal that they do not contain any qualifications based on nationality.
According to the learned SAN, it is settled that in interpreting the provisions of the Constitution, wordings should be given their literal and ordinary meaning and parties should not be allowed to read extraneous meanings into Constitutional provisions. He then urged on the Court to discountenance the decision of the Federal High Court referred to by learned counsel Mrs. Obinna–Madu in paragraph 4.8 at pages 5 of the Respondents’ brief of argument because it is not binding on this Court. He added further that this Court is only bound by its own decisions and those of the Supreme Court. I do not see any compelling reasons to go over the explanations, remarks and opinions of the learned SAN in paragraphs 2.4 to 2.8 at pages 3 to 5 of the reply brief.
In his final response on points of law, the learned SAN, Dr. Olanipekun explained that it is well established that cases are authorities only for what they decided and ought not to be cited and/or applied outside their factual context. While referring to the cases of BUHARI V. INEC (2008) 19 NWLR (PT. 64) 129 at 137, ADEGOKE MOTORS LTD. V. ADESANYA (1989) 3 NWLR (PT. 109) 250 at 266, OKAFOR V. NNAIFE (1987) 4 NWLR (PT. 64) 129 at 137 and FRN V. NWOSU (2016) 17 NWLR (PT. 1541) 226 at 276, Dr. Olanipekun SAN urged on the Court to discountenance the submissions and arguments on behalf of the Respondents and resolve issues 1 and 2 in favour of the Appellants.
In resolving the two issues formulated and argued on behalf of the Appellants, it is important to bear in mind at the onset the provisions of Section 254 (C) (a) and (k) of the 1999 Constitution, as amended. The provision reads thus: –
“Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters: –
(a) Relating to or connected with any labour, employment, trade union, industrial relations and matters arising from workplace, the conditions of service …
k. relating to or connected with disputes arising from payment of salaries, wages, pension, gratuities … “
(Underlining mine for emphasis).
Therefore, the interpretation to be given to the above provision of the Constitution is the literal approach as the drafts man did not mince words. Section 254C (1) of the Constitution is clear and unambiguous. It is the intention of the draftsman to confer jurisdiction on the National Industrial Court, to the exclusion of all other Courts with jurisdiction pursuant to Sections 251, 257 and 272 over the subject matter of the items listed thereunder. In the case of NDIC VS. OKEM ENTERPRISES (2004) 10 NWLR (PT. 880) 107 AT 182 PARA. H, the Supreme Court defined the term “notwithstanding” and held as follows:
“When the term ‘notwithstanding’ is used in a section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfil itself. It follows that as used in Section 251(1) of the Constitution, no provision of that Constitution shall be capable of undermining the said section.”
Simply put that, when the term “notwithstanding” is used in a clause of any statute, it is to be construed as a term of exclusion.
Furthermore, in the case of COUNCIL OF FEDERAL POLYTECHNIC, MUBI & ANOR VS. DINGOLI LPELR 24187 (CA), this Court held that:
” … by virtue of Section 254C(1)(a) & (b) of the 1999 Constitution, (as amended), which came into effect on 04-03-11, the Federal High Court was divested of jurisdiction to adjudicate over all matters described therein, particularly on the matter of the employment and/or dismissal of the Plaintiff/Respondent from the Defendant/Appellant institution. Specifically, from 10-05-11 when the suit was called up for mention right up to 21-05-12 when the lower Court delivered judgment, the lower Court was stripped of jurisdiction. By this authority, as well as numerous others such as CYRIL OSAKUE VS. FCE (TECHNICAL) ASABA (2010) 3 SCNJ 529, it is immaterial that the cause of action arose on 05-08-10 and that the suit was instituted on 23-09-10, as argued by learned Counsel for the Respondent. So long as hearing in the suit had not commenced at the time of the amendment to the Constitution, as in Section 254C (1)(a) & (b), came into force on 04-03-11, the lower Court was obliged to have immediately taken its hands off the matter. By proceeding as it did in the face of this constitutional provision, it acted in vain.”
In the case of UBA & ANOR VS. EZEKIEL (2018) LPELR–43778 (CA), this Court emphasized that:-
“The principal or main claim being the termination of the plaintiff’s employment which are matters related or connected to labour and employment and therefore within the exclusive jurisdiction of the National Industrial Court. The Constitution of Federal Republic of Nigeria (Third Alteration) Act, 2010 has recognized the National Industrial Court as a specialized Court and Section 254C thereof provides for the exclusive jurisdiction of the Court over all labour and employment issues. See SKYE BANK PLC VS. IWU (2017) 16 NWLR (PT.1590) 24 at 1 73.”
The above being said, it is a general principle of law that the primary determining factor of jurisdiction is the Plaintiff’s claim in relation to the Constitution and the statutory provisions that established the Court. In FEDERAL GOVERNMENT OF NIGERIA VS. OSHIOMOLE (2004) 3 NWLR (PT. 860) 305, the Supreme Court held as follows:
“It is the claim before the Court, particularly the reliefs being sought by the Plaintiff that determines the jurisdiction of the Court. Thus, in determining whether or not the Court has jurisdiction over the subject matter before it, the materials to consider are the Statement of Claim, the Writ of Summons and the particulars of claim where they are filed along with the Writ of Summons.”
Also in the case of ABDULRAHEEM VS. OLORUNTOBA- OJU (2006) 15 NWLR (PT. 1003) 581, this Court held that:
“It is a fundamental principle that jurisdiction is determined by the plaintiff’s claim. It is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the Court. In other words, in determining whether a Court has jurisdiction in a matter or not, the Court will examine or consider the writ of summons and statement of claim. Thus, when a Court’s jurisdiction is challenged…, it is only better and safer for that Court to look at the writ of summons and statement of claim to decide for itself whether it has jurisdiction or not. This is because, only the claims or reliefs donate jurisdiction to the Court. Therefore, the Court is not allowed to look elsewhere apart from the writ of summons and statement of claim.”
I have carefully read and considered the Respondents’ writ of summons and statement of claim. Their primary claim is for their outstanding wages allegedly due and owing being crew or seamen that faithfully performed their duties on board the 1st Appellant.
There is no doubt that a confusion arises as to jurisdiction because Section 1 of the Admiralty Jurisdiction Act states that the admiralty jurisdiction of the Federal High Court includes jurisdiction to hear and determine any question relating to a proprietary interest in a ship or aircraft or any maritime claim specified in Section 2 of the Act. Section 2 of the Act breaks maritime claim into two, namely: the propriety maritime claim and the general maritime claim. Now, Section 2(3) (r) enumerates some of the general maritime claims as
“a claim by a master, or a member of the crew, of a ship for-
(i). wages: or
(ii). an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including by operation of the law of a foreign country”
The provisions of Section 1 and 2 of the Admiralty Jurisdiction Act are so explicit that one may argue that the Federal High Court should have jurisdiction over the subject matter of this suit. However, the position of the law is apt that where there is any inconsistency between the Constitution and any Act of the National Assembly, the Constitution shall prevail. In the case of OKEKE VS. SECURITIES AND EXCHANGE COMMISSION & ORS (2013) LPELR-20355 (CA), it was held thus:
“As the ultimate grundnorm, the 1999 Constitution, as amended is undoubtedly supreme, and takes over and above all other enactments in this country. Thus, if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail. And that other law shall, to the extent of the inconsistency, be void. See Section 1 (3) of the 1999 Constitution, as amended (supra).”
Since the decision in BALEWA V. DOHERTY (1963) 2 SCNLR 15, the Supreme Court of Nigeria has remained fully determined and consistent in its interpretation and application of Section 1 (3) of the 1999 Constitution, as amended and its pari materia equivalents in the 1963 and 1979 Constitutions that the Constitution of our Country is a living document that speaks for itself. The apex Court has also remained dogged that the Constitution, being the grundnorm is superior to all laws and any law that is inconsistent with its provisions remains null, void and of no effect to the extent of the inconsistency. In recent times, the Supreme Court has been deciding so many cases in line with this vintage and ever-green constitutional law principle or norm. See for example,ATT. GEN. OF ABIA STATE & 35 ORS V. ATT. GEN. OF THE FED. (2002) 6 NWLR (PT. 763) 264, ATT. GEN. ONDO STATE V. ATT. GEN FEDERATION (2002) 9 NWLR (PT. 772) 222 at 310 and FASAKIN FOODS (Nig) LTD V. SHOSANYA (2006) LPLER 1244 (SC). 46.
In other words, the Constitution of the Federal Republic of Nigeria is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. Therefore, if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be void. See the case of ITSUELI & ANOR VS. SEC & ANOR (2011) LPELR-4343 (CA).
Section 254C (1) (a) and (k) of the 1999 Constitution (as amended) gave the National Industrial Court exclusive jurisdiction over employee wages and other labour related matters. It is also clear from the said provisions that an action founded on claims for unpaid crew wages falls outside the Federal High Court’s jurisdictional competence.
Section 2(3) (r) of the Admiralty Jurisdiction Act gives the Federal High Court jurisdiction over “a claim by a master, or a member of the crew, of a ship for (i) wages, or (ii) an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including by operation of a foreign country.”
In this regard, this Section which differed from Section 254C (1) of the Constitution, which conferred the same jurisdiction on the National Industrial Court is void to the extent of its inconsistency. See OLORUNTOBA-OJU VS. DOPAMU & ORS (2008) LPELR 2595. Even though Section 251 of the Constitution provides for the admiralty jurisdiction of the Federal High Court, the express use of the word “notwithstanding” in Section 254(c) clearly made the said Section 251 subject to the latter.
It follows therefore that as used in Section 254C (1) of the 1999 Constitution, no provision of the Constitution itself or any statute or legislation shall be allowed to prevail over the provisions and neither shall it be capable of undermining the said Section 254C (1).
The provisions of Section 254 C (a) and (k) of the 1999 Constitution (as amended) in my humble view is undoubtedly to oust the jurisdiction of any other Court to adjudicate on matters listed therein.
From the foregoing as argued and submitted by learned counsel to the Appellants, it is clear that neither the provision of Section 254 C (1) (b) of the Constitution nor Section 91 of the Labour Act has any bearing with the case presented by the Respondents. Thus, the learned trial Judge cannot make a case for the Respondents different from the one they have presented. See generally the cases of UNIVERSITY OF JOS VS. IKEGWUOHA (2013) 9 NWLR (PT. 1360) 478, 505 and YUSUF VS. C. O. P. LAGOS STATE (2000) 2 NSCQR 894, 905.
At this juncture, it is also pertinent to consider the provisions of Section 254(C)(1)(b) of the Constitution provides that:
“Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(b) “relating to, connected with or arising from Factories act, Trade Unions Act, Labour Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment, industrial relations or any other enactment replacing the Acts of Laws.”
It is settled that where provisions of the Constitution/Statute are clear and unambiguous, the Court has a duty to apply and give effect to such provisions. See the cases of C. C. C. T. S. VS. EKPO (2008) 33 NSCQR 1146, 1181; (2008) 6 NWLR (PT. 1083) and ABEGUNDE VS. ONDO STATE HOUSE OF ASSEMBLY (2015) 8 NWLR (PT. 1461) 314, 371-372.
From the clear wordings of the Constitution, it is apparent that Section 254C(1)(b) only applies to cases relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or other enactment replacing the Acts or laws. A consideration of the Respondents’ Statement of Claim appearing at pages 7-10 of the record reveals that the Respondents’ claim is not predicated on the Labour Act as held by the trial Court, rather the claim is in respect of the Respondents’ appointment, employment and remuneration as seamen. Thus, Section 254C(1)(b) of the Constitution is inapplicable to and irrelevant in the consideration and determination of the Appellants’ application dated 29th June, 2018.
The mention of the Labour Act does not however whittle down the exclusive jurisdiction of the National Industrial Court. Rather, any reference to the Labour Act and other Acts operates to include matters arising out of the Labour Act and other relevant National Laws within the jurisdiction of the National Industrial Court. The provisions of the Constitution cannot be limited or restricted by an Act of the National Assembly. See the cases of ABIA STATE & 35 ORS VS. A–G OF THE FEDERATION (supra) and NATIONAL UNION OF ELECTRICITY EMPLOYEES & ANOR VS. BUREAU OF PUBLIC ENTERPRISES (2010) LPELR-1966 (SC) 38. Thus, by the clear provisions of the Constitution, there are no restrictions or reservations as to the extent of the exclusive jurisdiction of the National Industrial Court, thus Section 91 of the Labour Act cannot be invoked, interpreted and/or applied to limit the application of Section 254C(1)(b) of the Constitution.
In view of the foregoing, the suggestion made by Dr. Olanipekun SAN in paragraph 4.11 at page 12 of the Appellants’ brief of argument that the learned trial Judge clearly read and misapplied the provisions of Section 254C(1)(b) in isolation, the learned trial Judge ought to have considered the entirety of Section 254C of the Constitution vis-a-vis, the Respondents’ claim; the learned trial Judge misapprehended both the nature of the Respondents’ claim and the application of the constitutional provisions that determine his jurisdiction cannot be faulted. In the case of ADEBIYI VS. STATE (2016) 8 NWLR (PT. 1515) 459, 474, the Supreme Court held:
“A Court’s finding is said to be perverse if, inter alia it took into account certain matters which it ought not to have considered or where it shut its eyes to the obvious or proved facts etc … “
A perverse decision is a nullity and ought to be set aside. See generally the cases of C. D. C. (NIG.) LTD VS. SCOA (NIG.) LTD (2007) 6 NWLR (PT. 1030) 300, 340-341; CORPORATE IDEAL INS. LTD VS. AJAOKUTA STEEL CO. LTD (2014) 7 NWLR (PT. 1405) 165, 212 and MUOMAH VS. SPRING BANK PLC (2009) 3 NWLR (PT. 1129) 553, 576. Thus, the misapprehension of facts and/or law by the learned trial Judge has resulted in perverse decision.
In view of the foregoing, the trial Court acted in error when it failed to follow the decision of the Federal High Court in Suit No. FHC/L/CS/1807117 – ASSURANCE FOR ENINGEN SKULD (GJENSIDIG) VS. MT CLOVER PRIDE & ANOR delivered on 28th March, 2018 per M. B. Idris, J. (as he then was) where the Court adopted the principle of stare decisis and rightly upheld the exclusive jurisdiction of the National Industrial Court on Labour/employment matters.
It is pertinent to state that the facts in Suit No. FHC/L/CS/1807117 – ASSURANCEFORENINGEN SKULD (GJENSIDIG) VS. MT CLOVER PRIDE & ANOR are similar to the facts in this present case, and by the principle of stare decisis, the trial Court had a duty to follow the decision in Suit No. FHC/L/CS/1807 117 – ASSURANCEFORENINGEN SKULD (GJENSIDIG) VS. MT CLOVER PRIDE & ANOR, though only persuasive. See the decision of the Court of Appeal in BOGORO LOCAL GOVERNMENT COUNCIL VS. KYAUTA & ORS (2017) LPELR-43296 (CA) on this point.
While the trial Court is bound to follow the decision of the Federal High Court in Suit No. FHC/L/CS/1807/17 – ASSURANCEFORENINGEN SKULD (GJENSIDIG) VS. MT CLOVER PRIDE & ANOR, the trial Court may also elect to depart from its earlier decision, in which case the trial Court has the duty to either distinguish the facts of the relevant cases, or prove that the previous decision was wrong. See the case of SAROR & ANOR VS. SUSWAM & ORS (2012) LPELR – 8611 (CA) 63.
In emphasizing the failure of the trial Court to consider the earlier decision in Suit No. FHC/L/CS/1807/17 – ASSURANCEFORENINGEN SKULD (GJENSIDIG) VS. MT CLOVER PRIDE & ANOR, it is necessary to note that it was the trial Court that directed parties to file supplementary addresses on the implications of this decision. The addresses filed by counsel can be found at pages 231-252 and 260-266 of the record of appeal. And at page 361 of the record, the learned trial judge summarily held:
“The subject matter of this claim is outside the jurisdiction of the NIC. I am therefore unable to follow the decision of Idris J (as he then was) in the clover pride case.”
The foregoing perfunctory and off-handed conclusion of the learned trial Judge was not preceded by a distinction of the Clover Pride decision whether on facts or law. Indeed, apart from reference to the decision in the course of summarizing the submissions of counsel, the foregoing is the only time the learned trial Judge mentioned the said decision. It should be noted that the issue of judicial precedent is not subject to discretion or arbitrariness. Precedence must be followed except where they are distinguished, overruled or departed from.
Thus, it becomes necessary to point out that the learned trial Judge wrongly assumed jurisdiction over the Respondent’s claim as a result of his failure to follow applicable and binding decisions of this Court, and the persuasive decision of Idris, J (as he then was).
Issues 4 and 5 were argued together at pages 19 to 27 in paragraphs 4.23 to 4.36. In the opening stages of his arguments and submissions, learned Senior Counsel for the Appellants started with a bold explanation that the requirement to obtain leave to issue and serve a writ in respect of the 2nd Appellant who is resident outside the jurisdiction of the lower Court was so fundamental to jurisdiction and the failure to do so as required by the law deprives the lower Court of jurisdiction and competence to entertain the claim of the Respondents. In a further explanation, the learned SAN for the Appellants reiterated that at the commencement of the action that led to this appeal the 1st Appellant was within the jurisdiction of the lower Court but the 2nd Appellant was resident and has so far remained outside its jurisdiction and also at all material times. As a unique factor, it was pointed out by learned counsel that the originating processes in Suit No. FHC/L/CS/1365/2017 was to be issued and served within and outside the jurisdiction of the lower Court, with its leave. Dr. Olanipekun SAN added that the writ ought also to have been marked as “Concurrent Writ” as provided by Order 6 Rules 13 and 14 (2) of the Federal High Court (Civil Procedure) Rules, 2019. Learned counsel went further to reproduce the full text of these provisions along with Section 98 of the Sheriffs and Civil Process Act, CAPS. 6 LFN, 2004.
While recalling some of the facts and circumstances in the instant appeal, Dr. Olanipekun SAN observed that the Respondents failed to obtain the requisite leave as well as failed to mark the Writ as concurrent as required by law both which are conditions precedent to the power of the lower Court to assume and exercise jurisdiction in the case of the Respondents. He relied on the cases of MADUKOLU V. NKEMDILLIM (supra) and NBN LTD V. GUTHRIE Nig. LTD & ANOR (1993) 3 NWLR (PT. 284) 643 at 659 and 661 to submit that the error or failure to obtain leave and to mark the writ as concurrent rendered the suit of the Respondents incompetent and the lower Court without jurisdiction to entertain it. Against the backdrop of this, learned Senior Counsel maintained that the lower Court erred in law when it held that no leave was required to serve a writ in an action in rem outside its jurisdiction and all the decided cases it relied on were applied out of context and without any regards to the facts of the matter. And as every case has to be decided on its peculiar or special facts and circumstances, the learned SAN, after listing out all those cases urged on the Court to hold that none of them has any bearing with the issue of non–service and of failure to seek leave as raised in the Appellants’ motion of 29th June, 2018.
While taking his arguments and submissions to the next level, Dr. Olanipekun SAN referred to and quoted extensively from the judgment of the Supreme Court inB. L. L. S. Co. LTD. V. MV WESTERN STAR (2019) 9 NWLR (PT. 1678) 489 at 506 and the decision of this Court in DEROS MARITIME LTD V. MSC APAPA (2015) 1 NWLR (PT. 1439) 51 at 77 and a number of other relevant and applicable decisions to the facts in the instant appeal to illustrate the law and practice that the Respondents having commenced the proceedings against the owners of the vessel (2nd Appellant) in personam, required the leave of Court to issue proceedings which they failed to do. Learned SAN Dr. Olanipekun maintained that it is settled that failure to obtain leave to issue originating processes out of jurisdiction is fatal and any proceedings conducted in the absence of such leave is a nullity. He cited and relied on such decisions as KIDA V. OGUNMOLA (2006) 13 NWLR (PT. 997) 3777 and NEPA V. ONAH (1997) 1 NWLR (PT. 484) 680 while also emphasising and quoting from the decision in THE OWNERS, MV. MSC AGATA V. NESTLE (Nig) PLC. (2014) 1 NWLR (PT. 1388) 270 at 289 to 290. And after submitting that the originating processes in the instant action were void and cannot ground a valid proceeding, learned SAN Dr. Olanipekun urged on the Court to so hold. He also added that any purported service of a void process remained of no moment or effect. He cited and relied on the case of OTU & ANOR V. ANI & ORS (2013) LPELR 21405 (CA) and urged on the Court to so hold.
In a further effort, learned Counsel for the Appellants went into detailed facts of this matter, he pointed out the lower Court was further wrong when it held that the 1st Appellant was duly served with the originating processes. According to Olanipekun SAN, it is trite that service of originating processes in an action constitutes a condition precedent for which failure to comply renders the Court incompetent to assume jurisdiction in respect of the dispute in the matter. He cited and relied on the decisions in IHEDIOHA V. OKOROCHA (2016) 1 NWLR (PT. 1492) 147 at 203 and STIRLING CIVIL ENGINEERING NIG. LTD. V. FIDELITY BANK PLC (2013) LPLER–22634 (CA) etc. Also, according to counsel to the Appellants, for the lower Court to have jurisdiction to entertain the claim of the Respondents, the Appellants ought to have been properly served with the originating process. Learned counsel added that to determine proper service, the lower Court ought to have considered the affidavit of service filed in respect thereto, as a prima facie evidence of facts deposed therein.
In a further illustration, the learned SAN referred to page 481 of the record of appeal and observed that the originating processes meant for service on the 1st Appellant was served on one “Captain” who also refused to sign the endorsement copy. Learned counsel submitted that service on a person merely referred to as “Captain” is a service on an unknown and an unidentifiable person. He added further that the master of the vessel not being an alter ego of the 2nd Appellant cannot be served with originating processes. According to learned Senior Counsel, the 2nd Appellant being a limited liability company must be served in line with Section 78 of the CAMA since no valid order for substituted service was sought or obtained from the lower Court. While referring to and relying on so many decided cases and Order 6 Rule 5 of the Federal High Court Rules, Dr. Olanipekun SAN submitted that for proper service to be effected, personal service of an originating process is required or by substituted means subject to the leave of Court sought and obtained in that behalf. He then further relied on the decision of the Supreme Court inIHEDIOHA V. OKOROCHA (supra) where it was held that where personal service is required and substituted service was effected without the leave of Court, such service would be null and void and will not be countenanced by the Court. In conclusion, Dr. Olanipekun, SAN submitted that the service of the originating processes in the instant matter was not effected on the 2nd Appellant and the lower Court was wrong to have assumed jurisdiction on the matter. He urged on the Court to so hold and resolve issues 4 and 5 against the Respondents.
In response to the arguments and submissions on behalf of the Appellants, learned counsel Mrs. Obinna–Madu, for the Respondents after conceding that service of originating processes is key to the jurisdiction of the Court went further to explain the narrative that the originating processes in the instant action were served on 21st September, 2017 on the master of the Vessel MT. Sam Purpose (EX Tapti) who refused to sign for it. Learned counsel also explained that Order 6 Rule 1 of the Admiralty Jurisdiction Procedure Rules, 2011 (AJPR) provides for the service of processes in an admiralty actions in rem along with Order 7 Rule 4 (2) also. Learned counsel quoted and reproduced the full text of these 2 provisions of the AJPR, 2011. Learned counsel then submitted that the originating process and warrant of arrest were served concurrently on the 1st Appellant through the master of the vessel but who refused to sign for same but same were left with him in line with Order 6 Rule 3 (b) of AJPR 2011 and maintained that an affidavit of service deposed to by an authorised officer of a Court is prima facie evidence of service.
On the contention of the Appellants that the originating processes were served on an unknown and unidentifiable person, Mrs. Obinna, of counsel opined and suggested that it was served on the master of the Vessel MT. Sam Purpose (Ex Mt. Tapti). She then maintained that the master is the agent of the 2nd Appellant and also submitted that the affidavit of service dated 21st September, 2017 was not disputed or disowned by the master of the vessel and same must suffice as proof of service of the originating processes on the Defendants/Appellants. Also, according to Mrs. Obinna–Madu, of counsel, the writ of summons in proceedings in an action in rem must, by virtue of Order 5 Rule 1 of the AJPR, 2011, specify a relevant person in relation to the maritime claim as a Defendant and with respect to this matter, the 2nd Defendant/2nd Appellant was sued by reference that it owned the 1st Appellant. And while commending the case of MV SEA TIGER V. ACCORD SHIP MANAGEMENT (HK) LTD & ORS (2020) LPELR–49498 to the Court, Mrs. Madu, of counsel argued that it is well established and settled that in an action in rem once the vessel is served with the originating processes same are deemed directed against the owners who are enjoined to enter appearance and defend the action. Learned counsel also submitted further that the master of the vessel is an agent of the owners and service on him or through him was properly done. She urged on the Court to so hold and resolve this issue against the Appellants.
At pages 5 to 6, paragraph 2.10 to 2.13, of the reply brief, learned counsel to the Appellants responded to the arguments and submissions of the Respondents that what was contained in the affidavit of service in the circumstance of this matter amounted to good and proper service of the originating processes on the Appellants. So much of what the learned SAN had to say is a substantial re–argument of the issues already canvassed in their main brief of argument. For the sake of convenience, I do not intend to go into them in any great detail.
In resolving these issues as argued on behalf of the Appellants, it is compelling to focus on some imperative principles of law and practice on the service of originating processes in general and specifically with respect to admiralty actions in rem. Admiralty actions, as pointed out by respective learned counsel, are sui generis and unique in a number of key and important respects.
It merits being explained here that according to Black’s Law Dictionary, 6th Edition at page 975, in maritime law, the master of a ship is the commander of a merchant vessel, who has the chief charge of her government and navigation and the command of the crew, as well as the general care and control of the vessel and cargo, as the representative and confidential agent of the owner. He is commonly called “Captain”. Also according to Sections 118, 119 and 225 etc. of the MSA, the primary duties of a master include the maintenance of order and discipline on board.
According to the decision of the Supreme Court in the case of KIDA V. OGUNMOLA (2006) 13 NWLR (PT. 997) where at the time of the issuance of a writ, personal service could not in law be effected on a Defendant who is outside the jurisdiction of the Court substituted service should not be ordered.
This is because, if the Defendant is outside the jurisdiction of the Court at the time of the issuance of the writ and consequently could not have been personally served in law, an order for substituted service cannot be made.
In the case of JADCOM LTD. V. OGUNS ELECTRICALS (2004) 3 NWLR (PT. 859) 153 this Court held that breach of the rules governing service of writ of summons out of jurisdiction affects the jurisdiction of a trial Court. See also AJIBOLA V. SOGEKE (2003) 9 NWLR (PT. 826) 494 where it was held that non–compliance with the rules of Court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders it and/or service of it voidable and the party complaining of such non–compliance is entitled ex debito justiciae to have it set aside.
The question of jurisdiction of Court is a radical and crucial question of competence because if a Court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be because a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Jurisdiction of Court is therefore considered to be the nerve centre of adjudication, the blood that gives life to an action in a Court of law in the very same way that blood gives life to a human being. This positon of the law began to emerge and crystallise since the decision of the Supreme Court in ATT. GEN. OF LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PT. 111) 552 and has been reiterated in a plethora of decided cases of the Supreme Court and this Court. See also DAPIANLONG V. DARIYE (2007) 8 NWLR (PT. 1036) 332.
In paragraph 4.8 at page 5 of the Respondents’ brief of argument, learned counsel Mrs. Obinna-Madu cited and relied on the unreported decision of the Federal High Court delivered on 20th June, 2014 in Suit No. FHC/L/CS/592/2011. One is left wondering what learned counsel meant to achieve by that. It is interesting that this strange action of learned counsel to the Respondents did not escape the attention of learned counsel Dr. Olanipekun SAN for the Appellants. In paragraph 2.3 at pages 2 to 3 of the reply brief, the learned SAN made his own observations, remarks and submissions and ultimately urged on the Court to discountenance that decision. I accordingly so do. I also see the reference to that decision as totally unwholesome and uncouth.
Coming back to the facts in the instant appeal, it remains settled and well established that the lower Court fell into a serious error when it overlooked the overriding effect of the provisions of Section 254 C (1) as it relates to a claim for the payment of due and accrued wages of any workers, but more specifically workers who are employed in the maritime sector as members of crew of a sea going vessel. The lower Court also misconceived the law when it read the provisions of Section 251 (1) (g) of the Constitution, as amended along with Section 2 (3) (r) of the AJA only without focusing on the other provisions of the Constitution providing for similar jurisdiction for the National Industrial Court of Nigeria (NICN). Since the NICN was established as a Court of special jurisdiction for labour related matters, it appears to me that the robust and more engaging arguments and submissions of learned counsel to the Appellants that the Federal High Court lacks jurisdiction to hear any case relating to the claim of wages of crew men on board a ship is more in line with the principles of interpretation of the Constitution and Statutes as well as existing established case law. Sequel to this, and the other submissions on behalf of the Appellants, issues 1 and 2 of the Appellants’ issues for determination in this appeal are resolved against the Respondents.
With respect to issues 4 and 5, I wish to point out that there is something peculiar about the facts in the instant appeal that is not in any of the cases that the lower Court used in supporting its decision. It is the fact that the crew members onboard the 1st Appellant vessel are the claimants and therefore fully interested in the outcome of the case. Therefore, as interested parties, with all the adversity it connotes, could the purported service on the “captain” of the vessel be good and proper service on the Defendants in the circumstance? I do not think so. Even if it were to be so it must be restricted to the 1st Appellant but cannot, in my view, extend to be 2nd Appellant as it would have been a gratuitous order for substituted service which was conceived and executed without any guidance or recourse to any principles of law and practice. In the case of MARK V. EKE (2004) 5 NWLR (PT. 865) 54, the Supreme Court held without any equivocation that the procedure for substituted service is not applicable to limited liability companies. I hold that the 2nd Appellant must only be validly served with the originating processes as prescribed by law. To extent that it was not so made, issues 4 and 5 must also be resolved against the Respondents.
Having now determined issues 1, 2, 4 and 5 in favour of the Appellants and the consequence of which is the ultimate conclusion that the lower Court totally lacked jurisdiction and competence to entertain the subject matter in the claim of the Respondents and also the further related finding that the Appellants were not duly served with the originating processes as prescribed by law etc, it leads to the inevitable discountenancing of the suit of the Respondents and doing the needful in the circumstance to strike it out. But just before that, the application of the Appellants filed on 29th June, 2018 succeeds and the reliefs are granted.
Having decided thus far, I do not think it is necessary to go into the arguments and submissions in the 3rd and 6th issues for determination formulated on behalf of the Appellants. Appeal is allowed. The ruling of the Federal High Court, Lagos Division delivered on 22nd May, 2020 in Suit No. FHC/L/CS/1365/2017 is set aside.
I order for N100,000 costs against the Respondents in favour of the Appellants.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I was privileged to read in advance, a copy of the lead judgment just delivered by my learned brother Ali A. B. Gumel, PJCA.
I totally agree with the reasoning and conclusion reached therein. I abide by the consequential orders as made in the judgment.
FOLASADE AYODEJI OJO, J.C.A.: I had the privilege of reading in draft, the lead judgment just delivered by my learned brother, ALI ABUBAKAR BABANDI GUMEL, JCA. I agree with the reasoning and the conclusion reached therein.
The settled position of the law is that a Court of law would not have the judicial power and authority to entertain, hear and adjudicate on any cause or matter brought before it unless it is imbued with such by the relevant statute. Without jurisdiction, a Court of law cannot exercise the jurisdictional power thereof, as any such exercise will be in vacuo, null and void. See BOKO vs. NUNGWA (2019) 1 NWLR (PT. 1654) 395; GOVERNOR, IMO STATE VS AMUZIE (2009) 13 NWLR (PT. 1157) 34; IKPEKPE VS. WARRI REFINERY AND PETROCHEMICAL COMPANY LIMITED (2018) 17 NWLR (PT. 1648) 280. The learned trial Judge acted without jurisdiction.
It is for the above and the more detailed reasons advanced by my learned brother that I too hold that this appeal has merit and should be allowed. I also allow the appeal and abide by all consequential orders in the lead judgment including the order as to costs.
Appearances:
Dr. Oladapo Olanipekun, SAN, with him, Mr. Kofi Antwi Apori and Mr. Ebunoluwa Jegede For Appellant(s)
Mrs. B. B. Obinna-Madu, with him, O. E. Ahanti For Respondent(s)