TRANSOCEAN SUPPORT SERVICES NIGERIA LIMITED & ORS v. NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY & ANOR (2019)

TRANSOCEAN SUPPORT SERVICES NIGERIA LIMITED & ORS v. NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY & ANOR

(2019)LCN/13554(CA)

In The Court of Appeal of Nigeria

On Monday, the 24th day of June, 2019

CA/L/503/2016

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria

Between

1. TRANSOCEAN SUPPORT SERVICES NIGERIA LIMITED
2. SEDCO FOREX INTERNATIONAL INC.
3. GLOBAL OFFSHORE DRILLING LIMITED
4. GLOBAL SANTAFE INTERNATIONAL DRILLING CORPORATION Appellant(s)

AND

1. NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY
2. MINISTER OF TRANSPORT Respondent(s)

RATIO

MEANING OF AN “APPEAL”

Meanwhile, the law as I know it is well settled that an appeal is re-hearing of the suit at the lower Court and also that in determining the question as to whether a suit is statute-barred, the immediate materials to be considered by the Court are the writ of summons and the averments contained in the Statement of Claim, and where begun by originating summons, as in this case, the averments contained in the Affidavit in support of the Originating Summons. See DANTATA v MOHAMMED [2000] 7 NWLR (PT 664) 176; HASSAN v ALIYU [2010] 17 NWLR (PT 1223) 547. PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT FAILURE TO SERVE PRE-ACTION NOTICE IS FATAL TO AN ACTION

We submit that failure to serve pre-action notice is fatal to this action and liable to be struck out; SHUAIBU v NAICOM (2002) 12 NWLR (PT 780) 116; MOBIL PROD. NIG UNLTD v LASEPA (2002) 8 NWLR (PT 715) 489. Counsel submitted that the pre-action notice is mandatory, he cited SHOMOLU LGC v AGBEDE (1996) 4 NWLR (PT 441 ) 174 AT 181 C-E; NNONYE v ANYICHIE (2005) 2 NWLR (PT 910 623 AT 647 (SC); UGWUANYI v NICON INSURANCE PLC (2004) 15 NWLR (PT 897) 612 (CA); OKAFOR v UKADIKE (2009) 1 NWLR (PT 1122) 259A AT 272E; FEED & FOOD FARMS (NIG) LTD v NIGERIAN NATIONAL PETROLUEUM CORPORATION (2009); THE YOUNG SHALL GROW MOTORS LTD v OKONKWO (2010) 15 NWLR (PT 1217) 524 AT 539E; AFRICAN PET LTD v OWODUNNI (1991) 8 NWLR (PT. 210) 391 AT 416. PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgement delivered on 4th May, 2016 delivered by the Federal High Court Coram Ajumogobia, J wherein the lower Court terminated the proceedings seeking the interpretation of the Coastal and inland Shipping (Cabotage) Act, 2003 on the basis that the proceedings were issued outside the 3 months allowed by the Public Officers Act (POPA).

The Appellants filed a Notice of appeal on 4th May, 2016.
A brief summary of the facts leading to this appeal is that; the Appellants were plaintiffs at the lower Court and had commenced the suit by originating summons dated 17/12/2010 (amended in 27/2/14) alleging that the 2nd defendant had no powers to make regulations by including in the Guidelines on the Implementation of the coastal and inland shipping (CABOTAGE ACT) drilling rigs among the vessels for which payments should be made in respect of 2% surcharge under the Cabotage Act. They further contended that the 1st defendant lacked the powers to issue demand notices for payment of 2% surcharge and requested an order to set aside the demand

notices of September 3, 2007 and October 24, 2007.

Arguments on both the preliminary objection and originating summons were heard together, and the lower Court delivered its judgment in favour of the 1st & 2nd Defendants and dismissed the Appellants originating motion.

Hence the Appellants filed this appeal.
The Appellants filed its brief of argument on 30th September, 2016, but deemed on 18th October, 2018, and a reply to 1st Respondent?s brief filed on 22nd January, 2019 deemed on 14th February, 2019 and reply to 2nd Respondent?s brief filed on 22/1/19 and deemed on 14/2/19 which were all settled by Fidelis Oditah QC, SAN of ODITAH, wherein they distilled five issues thus;
a. Whether the reissued 2010 proceedings were barred by POPA.
b. Whether POPA applies to law making so as to prevent the Cabotage Guidelines 2007 from being challenged after 3 months from April 2007.
c. Whether the lower Court was right to hold that the First Respondent?s counterclaim was procedurally proper and only failed because of lack of evidence.
d. Whether the lower Court erred by failing to deliver a Ruling in respect of

all the issues raised and argued in the Amended Originating Summons.
e. Whether this Court should decide the issues on the merit pursuant to Section 15 of the Court of Appeal Act.

The 1st Respondent?s brief of argument was filed on 3/12/18 and settled by MR. M. I. Igbokwe, SAN, Sir Adolphus Nwachukwu of Mike Igbokwe & Co wherein they formulated 5 issues for determination thus;
1. Whether the Court below lacked the competence and jurisdiction to hear and determine the Appellant?s suit when the suit was statute-barred by virtue of Section 2 of the Public Officers Protection Act and Section 53(1) of the Nigerian Maritime Administration and Safety Agency Act, 2007 which were features that prevented the Court below from hearing and determining the Appellant?s suit? (Distilled from grounds 1 and 2 of the Notice of Appeal)
?2. Whether the Guidelines for the Implementation of the Coastal and Inland Shipping (Cabotage) Act, 2003 revised and issued in April, 2007 (?the Cabotage Guidelines?) by the 2nd Respondent was an act done by the 2nd Respondent in the direct execution or in the discharge of a public duty or

authority and fall within the contemplation of the protection afforded by the Public Officers (Protection) Act? (distilled from grounds 3 and 4 of the Notice of Appeal)
3. Whether the Federal High Court (Civil Procedure) Rules, 2009 allow a defendant to file a counter-claim and the Court below was right to hold that the 1st Respondent?s counter-claim? (distilled from grounds 5, 6 and 7 of the Notice of Appeal)
4. Whether the Court below was right in not determining all the issues raised in the Appellant?s Amended Originating Summons, having earlier held that the Appellant?s suit was statute-barred? (distilled from ground 8 of the Notice of Appeal)
5. Whether this Honourable Court should decide the issues raised by the Appellants on the merit which did not arise from the grounds of appeal pursuant to Section 15 of the Court of Appeal Act?

?The 2nd Respondent also filed its brief on 23/1/17 settled by Prof. Fabian Ajogwu, San, FciArb, Dr. Oscar Nilam Esq, Dr EberechiIfeonu Esq, Olubusola Otedola – Olusanya, Miss Oludolapo Makinde& Miss Gboyega Oyewole Esq of Kenna Partners. Wherein they formulated three issues for

determination wit;
a. Whether the Public Officers Protection Act (POPA) applies to the suit as constituted at the trial Court.
b. Whether the lower Court erred by failing to deliver Ruling in respect of all the issues raised and argued in the Originating Summons.
c. Whether this Court should decide the issues on the merit pursuant to Section 15 of the Court of Appeal Act.

APPELLANT?S ARGUMENTS
The Appellants on issue 1 contends that the lower Court was wrong to hold that the re-issued 2010 proceedings were barred by Section 2 (a) of POPA, in summary, for the following reasons;
That the POPA does not apply to the interpretation, he relied on OBI ?AKEJULE v DELTA STATE GOVT (2009) 17 NWLR (PT 1170) 292 AT 308 G-H; PLATEAU STATE v AG FEDERATION (2006) 3 NWLR (PT 967) 346 at 391 E ? F; EXECUTIVE GOVERNOR OF DELTA STATE v STEVE OMOJAFOR (2011) LEELR ? 5011.

Secondly, he submitted the POPA does not apply to the unlawful exercise of power or performance of a public duty, he relied on IBRAHIM v JUDICIAL SERVICE COMMISSION (1998) 14 NWLR (PT 584) 1at 32D-F; EZEANI v NIGERIAN RAILWAY CORPORATION (2013) LPELR

? 22065 (CA); UNIVERSITY OF IBADAN v GOVT OF KWARA STATE (2012) LPELR- 14326 (CA) PAGE 92; ODEYEMI v NITEL PLC (2009) LPELR ? 4982.

He contended that the Cabotage guidelines imposed 2% surcharge which has been found illegal and unlawful by the Federal High Court in NOBLE DRILLING (NIG) LTD v NIMASA AND MINISTER OF TRANSPORTATION.

Appellants submitted that the lower Court ought to have found whether the Respondents was acting lawfully in relation to the imposition of the surcharge, he cited MOYOSORE v GOVERNOR OF KWARA STATE (2012) 5 NWLR (PT. 1293); OJEDIRAN v GOVERNOR OF OYO STATE (2013) LPELR ? 21116 (CA). Appellants submitted that the 2nd Respondent had exceeded the powers of delegation given to him, he cited ADDAX PET DEV NIG LTD v EMEF INTERNATIONAL OPERATIONS (2010) LPELR ? 3595, that the 1st Respondent cannot hide under POPA to collect taxes.
?He further contended that POPA does not apply.

On the third reason, Appellants submitted that the issuance of proceedings case references FHC/L/CS/1026/07 and FHC/L/CS/554/08 within the time allowed by POPA and NIMASA Act suspended the running of time against the

re-issued 2010 proceedings. He catalogued reasons for their being struck out and submitted that a case which is struck out is not dead, but is in limbo or suspense pending when the required procedural steps are taken. It is therefore not dead, unlike a dismissed case.

Appellants further contended that when the struck out proceeding are resuscitated, time does not begin to run afresh from the date of the resuscitation, but from the date the proceedings were originally issued within the applicable limitation period but it occurs after the expiry of limitation, he relied on SIFAX NIG LTD v MIGFO NIG LTD (2016) 7 NWLR (PT.1510) 10 AT 55F – 56A.

Ironically M. I. Igbokwe, SAN was counsel to the 1st Respondent in that case and he had argued contrary and the Appellants submits that he cannot take a stand in that case and a contrary one in this case.
?
On the fourth reason, he submitted that the extancy of the Cabotage outline and the 1st Respondent?s continued and recurrent demand of 2% Cabotage surcharge from the Appellants, shows that the legal injury of which the Appellants complain in these proceedings is ?continuing damage? within

the meaning of Section 2 (a) POPA. He submits that as long as the Appellants continue to deploy their drilling rigs in Nigeria and to carry on business, the 1st Respondent has continued to demand 2% Cabotage surcharge, showing that the legal injury constituted by the unlawful tax demand is a continuing one. He referred to Section 53 (2) of NIMASA Act and AREMO II v ADEKANYE (2004) 13 NWLR (PT 891) 572 593H – 594B; AG RIVERS STATE v AG BAYELSA STATE (2013) 3 NWLR (PT 1340) 123.

Appellants relied on paragraph 41 & 59 of the 1st Respondent’s counter affidavit, paragraph 6 of the 1st Respondent’s 2nd counter affidavit and urged the Court to resolve it in their favour.

On issue 2, in respect of applicability of POPA to the Cabotage Act, Appellants submitted that the lower Court was wrong by dismissing the proceedings against the 2nd Respondent, the lower Court had decided that POPA applied to the promulgation of Cabotage guidelines as a secondary legislation.

The learned silk posits that POPA applies to administrative acts and not to performance of legislative or judicial functions. That lawmakers can take refuge in

Section 2 of POPA if a law cannot be challenged after 3 months, he added that the lower Court surrendered its jurisdiction prematurely in response to the 2nd Respondent contention that Cabotage guidelines were protected by Section 2(a) of POPA and that the lower Court did not examine the legality of the guidelines.

He further contended that by inserting the word “rig” at paragraph 9. 1. 1. C of Cabotage guidelines, the 2nd Respondent thereby amended Section 22 (5) of the Cabotage Act which did not include “rigs” in the list of vessels to be registered and therefore liable to be 2% cabotage surcharge. That it amounted to amendment by a subsidiary instrument, without the authorization of National Assembly.

The Appellants in issue 3, on the propriety of the counterclaim in the counter affidavit submitted that, he objected against the counterclaim embedded in the counter affidavit on procedural and substantive grounds due to the mode of commencement which does not accommodate a counter claim, and there was no proof of how the amount in the counter claim was computed and the main issues to be proved in the counter claim was missing. He

contended that the judgement did not fully consider the issue of the counter claim, among other reasons. He cited AIR VIA LTD v ORIENTAL AIRLINES LTD (2004) 9 NWLR (PT. 878) 298 that there is no provision for counter claim in an originating summons under the Federal High Court Rules.

Secondly, he cited NOBLE DRILLING v NIMASA & MINISTER OF TRANSPORTATION for the proposition that the lower Court needed to resolve the four liability issues in favour of the Respondent before considering the evidence in support of the amount in the counter claim.

Arguing the third reason, why the counter claim should fail, Appellant argued that the lower Court having found it unproved ought to have dismissed it and not strike out as it did having heard it on its merit, he cited TINUBU v KHALIL & DIBBO TRANS LTD (2000) 11 NWLR (PT 677) 171 AT 182 A ? B; EDOKPOLO v ASEMOTA (1994) 7 NWLR (PT. 356) 314 AT 328B-C; FBN PLC v FAIKO NIG LTD (2008) ALL FWLR (416) PP. 1973 PARA E ? G.

The Appellants on issue 4, argued that a number of issues were raised and argued but was not determined by the lower Court, the parties submitted on them but the Court either

failed to make any finding or express any view on them and this was wrong. He relied on BRAWAL SHIPPING LTD v F. I. ONWADIKE CO LTD (2000) 11 NWLR (PT 678) 387 AT 403 E-G.

Finally, the Appellants submitted on issue 5 which he titled; “Remedies”- Section 15 of The Court of Appeal Act” that the Court has powers to allow the appeal, decide the amended originating summons on its merits, grant reliefs sought pursuant to Section 15 of the Court of Appeal Act, and urged the Court to so do, that all conditions for the act to apply were present in this appeal.

Appellant cited EZEIGWE v NWAWULU (2010) 4 NWLR (PT 1183) 159 AT 203 G – 204B and distinguished the appeal at hand to justify the application of Section 15 of Court of Appeal Act.

1st RESPONDENT’S ARGUMENTS
The 1st Respondent on issue 1, submitted on the question of jurisdiction of the Court when the suit was statute barred by virtue of Section 2 (a) POPA and Section 53(1) of NIMASA Act, 2007 and cited MADUKOLU v NKEMDILIM 1962 ANLR (PT 2) 531 AT 589 /590; PLATEAU STATE v A.G FED (2006) 1 SC (PT1) AT 72; JATAU v AHMED (2003) 4 NWLR (PT 811) 498 AT 511 B-D (SC).

He submitted that a perusal of paragraph 5 of the affidavit in support of the Appellants? AOS will show that the CG issued by 2nd Respondent was issued in April, 2007 and the demand notices issued by the 1st Respondent were in 3/9/07 and 24/10/07 respectively, shows that the cause of action accrued in April 2007 or at best 24/10/17 but the suit was filed on 17/12/10. While paragraph 11, 12, 15, & 19 of the 1st Respondent?s counter affidavit show that they are public officers within the meaning of Section 2 POPA. The suit was filed 3 years and two months after the cause of action. 1st Respondent posits that the demand for 2% surcharge on contracts sums performed was legal and in line with their duties under the CA and NIMASA Act, 2007 which are within public duties and authority of the 2nd respondent.

Secondly, that the complaints were against the act done by 1st Respondent. He referred to Section 147 & 148 of 1999 constitution, that the 2nd Respondent is a public officer, he cited in aid IBRAHIM v JUDICIAL SERVICE COMMITTEE KADUNA STATE (1998) 14 NWLR (PT 584) 1; NV SCHEEP v MV ?S.ARAZ’ (2000) 15 NWLR (PT 691) 622 AT 653;

DANTATA v MOHAMMED (2000) 7 NWLR 9 (PT 664) 17; JALLCO LTD v OWONIBOYS TECH SERVICES (1995) 4 NWLR (PT 391) 53; OWIE v IGHIWI (2005)1 SC (PT11) 16 AT 31; LLOYDS v BUTLER 1KB 76 AT 81-82; JONES v BELLGROVE PROPERTIES LTD (1949) 2 KB 700 AT 704; EGBE v ADEFARASIN (1987) 1 NWLR 1 AT 20; NRC v NWANZE (2008) 4 NWLR 92 AT 108.

He posit that statute of limitation being a jurisdictional point can be raised at anytime and cited the following cases; NASIR v CIVIL SERVICE COMMISSION KANO STATE (2010) 6 NWLR (PT 1190) 253 AT 266; ELABANJO v DAWODU (2006) 15 NWLR (PT. 1001) 76 AT 115 C-G; UNILORIN v ADESINA (2014)10 NWLR (PT. 1414) 159; UAC v MACFOY (1962) AC 152; AG FEDERATION v SODE (1990)1 NWLR (PT 128) 500 AT 532 E-G.

1st Respondent distinguished the case of EXECUTIVE GOVERNOR OF DELTA STATE v STEVE OMOJAFOR (Supra) as well as IBRAHIM v JSC (Supra) from the case at hand and submitted that it has nothing to do with validity of an enactment or within Section 2 POPA of Delta state.

1st Respondent submitted that POPA is for full protection of public officers, he relied on SULGRAVE HOLDING INC v FGN (2012) 17 NWLR (PT. 1329) 309 AT 335; LAGOS CITY COUNCIL v OGUNBIYI

(1969)1 ANLR 297; HASSAN v ALIYU (2010) 17 NWLR (PT 1223) 547; OFFOBOCHE v OGOJA L.G (2001) 16 NWLR 9 (PT 739) SC; OJERINDE v OYO STATE GOVT (2013) LPERL ? 2016 CA; BENDEL NEWSPAPERS CORP V OKAFOR (1993) 4 NWLR (PT 289) 617 CA; CHIGBU V TONIMAS (NIG) LTD (2006) 9 NWLR (PT. 984) 189; CRUTECH v OBETEN (2011) 15 NWLR (PT 1271) 588 AT 608 G ? H.

1st Respondent further submitted that, from the depositions in the affidavit in support of AOS, there is no allegation of bad faith or lack of resemblance of legal authority to ground exceptions to applicability of POPA. Therefore, he emphasised that the suit was caught by Section 2 POPA and was incompetent, he cited HASSSAN v ALIYU (Supra), and also distinguished several cases cited by Appellants as inapplicable.

On issue 2, 1st Respondent submitted that POPA is for public officer who had acted pursuant to his duties as a public officer in respect of which the action was commenced, in an act done within the confines of their public duties, he is protected by the act against any action filed 3 months from the cause of action.
?
He cited ADIGUN v AYINDE (Supra) that there is no distinction

between administrative acts and legislative or judicial functions, that the use of the word ?rig? at paragraph 9.1.1.C of CG, to amend Section 22(5) of the CA was not exhaustive or limited, as the list of vessels includes rig eligible for registration under CA by Section 22(5) (m). He urged that the Court should resolve it in favour of the 1st Respondent.

In respect of issue 3, he submitted that the law is settled on the propriety of filing a counterclaim in an action brought by originating summons in the Federal High Court has since been settled in the case of AGHU v CROSS RIVERSTATE (2009) 3 NWLR (PT. 1129) 475 AT 507H CA; NJC v HON JUSTICE JUBRIL BABAJIDE ALADEJANA (2014) LPELR ? 24134; OLUMBA v THE REGISTERED TRUSTEE OF THE BROTHERHOOD OF THE CROSS & STAR (2012) LPELR and therefore the Court is bound by the doctrine of stare decisis to follow these decisions. He cited UNILAG v OLANIYAN (1985) 1 NWLR (PT.1) 156; IBODO v ENAROFIA (1980) 5 – 7 SC 42; OKEKE v OKOLI (2000) 1 NWLR (PT. 642) 641 AT 654; DR OKONJO v DR MUDIAGHA ODJE (1985) 10 SC 267.
?
He posit further that, the intendment of the Federal High Court (Civil Procedure)

Rules (FHCCPR) are not to preclude a defendant in any suit from bringing a counter claim, hence, the inclusion of Orders 10(1), (2), (3) & Order 13 Rule 16. He cited the following cases in aid; WEMA BANK v OSILARU (2008) 10 NWLR (PT1094) 150; OKONKWO v CCB (2003) 8 NWLR (PT 822) 347 AT 402 403; AIR VIA LTD v ORIENTAL AIRLINES LTD (2004) 10 NWLR (PT. 878) 289; OGBONDA v EKE (1998) 10 NWLR (PT. 568) 73 AT 79; LADUNNI v WEMA BANK (2011) 4 NWLR (PT. 1236) 44; PORTS AND CARGO HANDLINGS SERVICE CO LTD v MIGFO (NIG) LTD; VEEPEE IND. LTD v COCOA INDUSTRIES LTD (2008) 13 NWLR (PT. 1105) 486; BELLO v AG OYO STATE (1986) 2 NSCC 1257; SALEH v MONGUNO (2006) 15 NWLR (PT. 1001) 26 AT 60.

In furtherance of his arguments, the learned silk cited authorities that the rules of procedure are made for the convenience and orderly hearing of cases wit; AMAECHI v INEC (2008) 5 NWLR (PT. 1080) 227; OKOROAFOR v THE MISCELLANEOUS TRIBUNAL (1995) 4 NWLR (PT. 387) 59; UTC v PAMOTEI (1989) 2 NWLR (PT. 103) 244; DUKE v AKPABUYO LG (2005) 19 NWLR (PT 959) 130; OFODILE, SAN OFR v AGUSIOBO (2013) 1 AT 13 CF.
?
He submitted that contrary to the submissions of the Appellants, the 1st

Respondents counter claim showed that drilling rigs are vessels within the meaning of Section 22(5) M of the CA, because of the use of words “include”and that the lower Court addressed the issue no matter the style of writing.

In addition, the 1st Respondent submitted that paragraph 62 of the 1st Respondent counter affidavit did not offend Section 115 of the Evidence Act, 2011 but complied with Section 117 of the Evidence Act, 2011 and does not amount to a legal argument, objection, prayer nor conclusion but a statement of fact based on the deponent’s belief; BAMAIYI v STATE (2001) 8 NWLR (PT. 715) 270; OYEGBOLA v ESSO WEST AFRICA INC (1966) ALL NLR 162 AT 163.

1st Respondent distinguished the case of AIR VIA LTD v ORIENTAL AIRLINES LTD(2004) 9NWLR (PT 878) 298 and PROF AWOJOBI v DR OGBEMUDIA (1983) 8 SC 92.

1st Respondent submitted on issue 4, that its trite principle of law to hear a preliminary objection with the substantive suit so that if the objection to the action succeeds, the case or action is terminated in limine. In the event that it fails, the Court goes on to determine the action. He cited

AG LAGOS STATE v AG FED (2014) 9 NWLR (PT 1412) 217 AT 263 E G (SC); DAPIANLONG v DARIYE (2007) 8 NWLR (PT 1036) 332. He submitted that once a Court finds that it lacks jurisdiction the only step is to make consequential orders. Other matters/issues become academic. TUKUR v GOVT OF GONGOLA STATE (1989)4NWLR (PT. 117) 517; DUZU v YUNUSA (2010)10 NWLR (PT. 1201)80; OLOBA v AKEREJA (1988) 3 NWLR (PT84) 508 AT 520; CHIBUEZE v IBEDIRO (1999) 3NWLR (PT 594) 206 AT 213; ENIGBOKAN v AII CO (NIG) (1994) 6NWLR (PT 348)1.

On the fifth issue, on the merit of Section 15 of the Court of Appeal, learned silk submitted that issue 4 arising from ground 8 of the notice of appeal has been distilled in that issues a, b, c, d at paragraph 90 of the brief were addressed by 1st Respondent as issues in the lower Court as issues two and four respectively, and issues not pronounced upon will not be taken by the Appellants’ suit and cannot be heard under Order 15, he cited AJIBONA v KOLAWOLE (1996) 10 NWLR (PT. 476) 22.

Counsel further submitted that the cannons of interpretation can be considered and would stretch into whether the Appellant drilling rigs are vessels

carrying on Cabotage trade and if they are eligible for registration under the CA and are liable to pay the surcharge of 2% on performed contracts sums. He cited SPDC v ISAIAH (1997) 6 NWLR (PT. 508) 236 AT 246; OMOIJAHE v UMORU (1999) 8 NWLR (PT. 614) 178.

In interpreting the wordings used in the enactment such as Cabotage, vessels and Nigerian water in Section 2 of CA. He cited UWAIFO v AG BENDEL STATE (1982) 7 SC 124 AT 184.

He posits that an examination of paragraphs 20, 23, 24, 25, 42, 49, 50, 52, 53, 54, 55 & 56 of the 1st Respondent’s counter affidavit and Exhibit T reveals that the drilling activities including carriages by the rigs, owned, chartered, operated by or on hire by the Appellants to international oil companies amount to Cabotage. 1st Respondent examined various phrases in the CBA together with various cases to justify his case. That even though drilling rigs were not especially mentioned in Section 22(5) of CA as one of the vessels eligible for registration under the Act, Section 22(5) (m) of CA is wide enough to accommodate it and was specially mentioned in clause 9.1.1.of CG as rigs and under Clause 10 of CG, he cited

CANADA SUGAR REFINNING CO V R (1898) AC 735; AJUEBOR v EDO STATE (2001) 5 NWLR (PT 707) 466.

Learned silk submitted without conceding that even if the ejusdem generis rule was applied to the construction of Section 22(5) (m), the Appellants drilling rigs would be embraced by it. 1st Respondent urged this Court to apply the mischief rule to correctly interpret and apply the Cabotage Act, and Cabotage Guideline to adopt an interpretation that will enable the suppression of the mischief revealed above and to promote the remedy within the intent or intention of the statute. He called in aid ANYAKORA v OBIKAKOR (1990) 2 NWLR (PT 130) 52 AT 55; IBWA v IMANO NIG LTD (1988) 3 NWLR PT 85 633; IGP v MARKE (1995) 2 FSC 5.

He also argued that the combined reading of Sections 147 and 148 of the 1999 constitution, the 2nd Respondent is a minster assigned to and with constitutional responsibility for the business of and administration of the Federal Ministry of transportation and also a public officer, he also referred to the combined reading of Section 30, 44 & 49 of CA and Section 1(1) (b) and 22 (1) (F) of NIMASA 2007, that one of its function is to enforce

and administer the provision of the CA including the collections and disbursement of the CVFF. He distinguished cases relied upon by Appellants in this regard as inapplicable.

2ND RESPONDENT?S SUBMISSION
2nd Respondent?s counsel distilled the following issues for determination, to wit:
a. Whether the Public Officers Protection Act applies to the suit as constituted at the trial Court?
b. Whether the lower Court erred by failing to deliver Ruling in respect of all the issues raised and argued in the Originating Summons?
c. Whether this Court should decide the issues on the merit pursuant to Section 15 of the Court of Appeal Act?

The 2nd Respondent submitted that the effect of a suit been affected by the provisions of POPA is that it becomes a nullity, he relied on IBRAHIM v LAWAL (2015) 17 NWLR (PT 1489) P 525 PAR G-H; AMUSAN v OBIDEYI (2000) 18 WRN 90 PG 9; ARAKA v EJEAGWWU (2000) 12 SC (PT 1) 99.

?He posits that an originating summons will be barred if filed out of the stipulated time allowed by POPA. Learned silk contended that the facts of this case is not in dispute, but that the suit is against a public

officer of the Federal Republic of Nigeria, he further contended that the key to the resolution are found in Section 148(1), 318 of the constitution and Section 18 of Interpretation Act Laws of the Federation of Nigeria, 2004. He cited JIBO v MINISTRY OF EDUCATION & ORS (2016) LPLER ? 40616; KASANDUBU v ULTIMATE PETROLEUM LIMITED (2008) 7 NWLR (PT 1086) 304 PAR A-B.

2nd Respondent argued that from the reliefs, it is clear that the cause of action that informed the suit at the lower Court accrued in 2007,whilst the action was brought in 2010 and the cause of action and reliefs was statue barred against the 2nd Respondent, as the suit relates to events that occurred in 2007,whilst the action was brought in 2010 which is 3 years beyond the 3 months time limit, he relied on ADEOSUN v JIBESIN (2001) 11 NWLR PT 724 PG 290; AINA v JINADU (1992) 4 NWLR PT 233 PG 91; FADARE v ATTORNEY GENERAL OYO STATE (1992) NSCC 643; EGBE v ADEFARASIN (NO 2) (1985) 1 NWLR (PT 3) 549; EBOIGBE V NNPC (1994) 5 NWLR (PT 36) 659; EZEREBO v IGP & 2 ORS (2008)11 NWLR (PT. 1151) 117 and submitted that the lower Court was right in its decision in refusing the claims of the

Appellant.

Leaned silk posit that the aim of the POPA is to protect public officers for actions and/or powers exercised in good faith, even when the power or action are not expressly contained in any statue as held in NWANKWERE v ADEWUNMI (1966) 1 ALL NLR 129 AT 133 ? 134; CBN & ORS v OKOTIE (2015) LPELR – 24740 (SC). He urged the Court to resolve this issue in his favour.

On whether POPA does not apply to the performance of a public Duty, he referred to paragraph 29 of the Appellants? brief and submitted that it is a gross misrepresentation of the POPA to say it does not apply to performance of a public duty/scope of the constitutional or statutory duty of the 2nd Respondent, he referred to the following cases cited by the Appellants; HASSAN v ALIYU (2010) 17 NWLR (PT. 1223) 547 SC; OKOH v THE NIGERIAN NAVY (2007) WRN (VOL. 25) 46 AT 64; ADDAX PETROLEUM DEV (NIG) LTD V EMEF INTER OPERATIONS (2010) LPELR 3595. That they are inapplicable.
?
Learned silk referred to Sections 2, 22(4), 43 & 44 of the Cabotage Act and submits that the Minister acted within the scope of his authority to propose a guideline for approval by the

National Assembly and empower the 1st Respondent to collect 2% surcharge, He relied on AWUSE v ODILI (2003) 18 NWLR (PT 851) 116.

In addition, he stated the Appellant omitted to inform the Court that the case of NOBLE DRILLING (NIG) LTD v NIMASA & ANOR (Supra) which they relied on had been overturned on appeal.

On the contention of the Appellant that the POPA does not apply to an unlawful exercise of power, the 2nd Respondent in response submitted that the case of RIVERS v BAYELSA STATE is inapplicable. In that the acts of the 2nd Respondent does not amount to an unlawful exercise of power but one granted by the Cabotage Act. He referred to SULGRAVE HOLDINGS INC & ORS v FGN & ORS (2012) 7 NWLR (PT. 1329) 309 AT 317 PARA 4; MOYOSORE v GOVERNOR OF KWARA STATE & ORS (2012) 5 NWLR (PT. 1293) 242 to the point that all that is required is an examination of the originating process of the facts and not the defence.
?
In addition, learned silk disagreed that POPA does not apply to interpretation of statute, he posit that the suit is deceptively presented as that, but a critical examination of originating process shows that it is more than

interpretation of statues.

He referred to IBRAHIM v LAWAL (Supra), and relief 3 & 4 of the originating summons and affidavit in support thereof, and contended that the reliefs mentioned, clearly relate to an act carried out by the 2nd Respondent in furtherance of the Cabotage Act which empowers him to so act, that is, make guidelines and consequently surcharge 2%, he concluded that the action challenges the action of the 2nd Respondent.

In response to the contention that the acts of the 2nd Respondent are continuing legal injury, he argued that the act was completed in 2007 when the guidelines were issued by the 2nd Respondent and that it is when the act complained about and not the consequence thereof, that is considered when determining when a cause of action arose, and that the continued classification of the Appellants? vessel among vessels liable for the 2% surcharge is only a consequence of the act or default complained of.

He relied on the definition of ?continuous damage or injury? as put in the case of OMIN & ORS v AG CROSS RIVERSTATE & ORS (2013) LPELR – 21388 (CA); ONADEKO v UBN PLC (2006) ALL FWLR (PT

301) 1872; OLAOSEBIKAN v WILLIAMS (1996) 5NWLR (PT. 449) 437; INEC v OGBADIBO LOCAL GOVT &ORS (2015) LPELR ? 24839 (SC).

On issue 2 for determination, he submitted that once the Court finds that there is no jurisdiction that Court should not proceed to hear and give judgment on the merit of the case as such would be incompetent. He cited DUZU & ANOR YUNUSA & ORS (2010) 10 NWLR (PT. 1210) 80 AT 94; EXECUTIVE GOVERNOR OF OSUN STATE v FOLORUNSHO (2014) LPELR-23088 (CA); HASSAN v ALIYU (Supra); APC & ORS v IN RE;CPC& ORS (2014) LPELR ? 24036(SC) to the point that in cases of preliminary objection a lower Court is not expected to go further once upheld.

Considering issue 3 for determination, that the Court should invoke Section 15 of its Act and determine all issues in the matter, he posit that Section 15 of the Court of Appeal Act as its stands does not provide for hearing of an originating summons from the high Court, that the sections relates to appeals from interlocutory order/decision which is not the case herein. He submitted that there are conditions for its application, he referred to EZEIGWE v NWAWULU (2010) 4 NWLR

(PT 1183) 159 AT 203G – 204B; OBI v INEC (2007) 11 NWLR (PT 1046) 565 AT 639 PAR E-G; DAPIANLONG v DARIYE (NO 2) (2007) 8 NWLR (PT 1036) 332, that Section 16 does not apply to this circumstance, he urged the Court to dismiss the appeal.
REPLY BRIEF OF APPELLANTS TO 1ST RESPONDENT.
Appellant in its reply brief submitted that the case of SIFAX NIG LTD v MIGFO NIG LTD (2018) 17 NWLR (PT. 1623) 138 is decisive to this appeal and should be applied.

Secondly, he submitted that none of the cases cited by 1st Respondents applied and he distinguished them.

He also re-emphasised his stand in the Appellants’ brief that the originating summons cannot accommodate a counter claim.

On the duty of a Court to decide all issues, he disagreed with contention of the 1st Appellant and cited the cases of ECO BANK (NIG) LTD v ANCHORAGE LESIURES LTSD (2018) 18 NWLR (PT 1650) 116 AT 131 B-E

On the application of Section 15 of the Court of Appeal Act, Appellant contended that contrary to submissions of 1st Respondent, the principle in the NOBLE’S CASE decided by ABUTU, J was very applicable, and that his reliefs were very clear and that

the definition of “vessel” makes it clear that the interpretation given by 1st respondent in its brief is misleading, he urged the Court to adopt the various decisions from other climes cited in its brief. He urged the Court to look into the reliefs and grant them.

REPLY TO 2ND RESPONDENT’S BRIEF
The Appellant in reply to the 2nd Respondent submitted that the case of SIFAX NIG LTD v MIGFO NIG LTD (SUPRA) which he reviewed extensively in his reply applied and is the correct position of the law. He distinguished the facts of the case of MV ARABELLA and urged the Court to apply the decision in SIFAX NIG LTD v MIGFO NIG LTD.

In respect of argument on POPA and the ULTRA VIRES ACTS, he contended that although the public officer is empowered by Section 46 of Cabotage Act to make subsidiary legislation or regulations for effective implementation of the act it does not allow him expand the categories of vessels requiring registration pursuant to Section 22 (5) and it does not include rigs. Therefore, the officer acted outside its powers and paragraph 9.1.1 of Cabotage guidelines is ultra vires, null and void. He relied on

NNPC v FAMFA OIL LTD (2012) 17 NWLR (PT1328) 148 at 195 D-H, 196A; GOVERNOR OF OYO STATE v FOLAYAN(1995) 8NWLR (PT 413 292 AT 327B-D.

Finally, he submitted on the duty of a Court and relied on ECOBANK NIG LTD v ANCHORAGE LESIURES LTD (SUPRA) that the 2nd Respondent was wrong and a Court must determine all issues canvassed before it, even if it has found it has no jurisdiction.

In conclusion, he urged the Court to allow the appeal.

RESOLUTION
The first issue to be considered here is; whether the re-issued 2010 proceedings were barred by the Public Officer Protection Act? Whereas the second issue is; whether POPA applies to prevent a challenge to the Cabotage Guidelines where the suit was instituted after 3 months from April, 2007?

Section 2(a) of the Public Officer Protection Act reads:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect-

a. the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof:
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison
?As against action commenced against the 1st Respondent, Section 53(1) of the Nigerian Maritime Administration and Safety Agency Act, 2007 reads:
?Notwithstanding anything contained in any other law or enactment, a suit shall lie not against the Agency, a member of its Board, its Director-General or any other employee of the Agency for any act done in pursuance or execution of any public duty under this Act or any law or enactment, or in respect of any alleged neglect or default in the execution of any duty under this Act or such law or enactment unless it is commenced within one year after the act, neglect or default

complained of, or in the case of a continuance of damage or injury, within one year after the ceasing thereof.?
I agree with the learned trial judge when she held at page 374 of the record of appeal that the above provisions are complimentary of each other and the Section 53(1) (a) of the NIMASA Act does not exclude the provisions of POPA. To this extent, I shall consider the provision of the POPA, and where the need arises, I will make reference to the NIMASA Act.
The above provision of the POPA has been the subject of construction in a plethora of decisions of the Apex Court and indeed this Court, and the purpose for which the said provision was made by the legislature cannot be a matter of dispute. In A. G RIVERS STATE v A.G BAYELSA STATE & ANOR (2012) LPELR ? 9336 (SC), the Apex Court, per GALADIMA, JSC, while expressing the settled position on the interpretation of Section 2(a) supra as it relates to the statute of limitation has this to say:
“The general purpose of Section 2(a) of the Public Officers (Protection) Act, which is in pari materia with Section 2(a) of the Public Officers Protection Law of Northern Nigeria 1963,

is exhaustively explained by this Court in IBRAHIM V. JSC (supra). The Act is a Statute of Limitation. The general principle of law is that where a statute provides for the institution of an action within a prescribed period, the action shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the Plaintiff or the injured person to commence the action would have been extinguished by such law. For the section of the Act to avail any person two conditions must be cumulatively satisfied: These are: (i) It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that law. (ii) That act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any Law. Public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority?.? (Underlining Mine)
?Certainly, the Act is a statute of limitation which removes the right of action,

the right of enforcement and the right to judicial relief in a Plaintiff and leaves him with a bare and lifeless cause of action. Whereas, a Plaintiff may have a cause of action upon which he would have ordinarily sought for judicial intervention, the failure to bring any action thereon within the prescribed period strips him of his access to Court. See OSUN STATE GOVERNMENT v DALAMI NIGERIA LIMITED (2007) LPELR ? 2817 (SC); AWOLOLA v GOVERNOR OF EKITI STATE & ORS (2018) LPELR ? 46346 (SC); FUTMINA & ORS v OLUTAYO (2017) LPELR ? 43827 (SC).
?It is instructive that the primary question that should be considered, for the purpose of the application or otherwise of the POPA is whether the Appellants? suit was commenced within the three months prescribed for the commencement of any action against the Respondents, as Public Officer. The contention of the Learned Appellants? Counsel is that the issuance of proceedings in FHC/L/CS/1026/2007 and FHC/L/CS/554/2008 (2007/08 Proceedings) within the time allowed by the POPA and the NIMASA Act suspended the running of time against the re-issued 2010 proceedings which sought the

determination of identical questions and reliefs, notwithstanding that the 2007/08 proceedings were struck out in October 2010. On the other hand, learned counsel for the 1st and 2nd Respondents respectively held the view that the present suit commenced by the Appellants on 17th December, 2010 against the Respondents was statute barred, having been brought in 2010, and a period of more than three months from the accrual of the cause of action.
?It is quite interesting that in the entire arguments canvassed by the learned counsel to the 1st Respondent and the 2nd Respondent, the period being reckoned with for the purpose of determining whether the Appellants? suit is caught by the limitation period is when the present suit leading to this appeal was commenced in December, 2010. There is no doubt that if that date is reckoned with, the Appellants have no right of action to come before the lower Court to seek for the enforcement of their right in order to obtain any judicial remedy, since according to the Respondents, the cause of action accrued in April 2007 or December, 2007. Although, the learned counsel for 2nd Respondent did not address the issue

touching on the substance of the 2007/08 Proceedings, particularly as it affect the instant issue, learned counsel for the 1st Respondent had argued that the 2007/08 never existed because leave was not obtained to issue and to serve their writs of summons upon which the suits were commenced.
Indeed, it is not in dispute that the Appellants herein had in 2007/2008 commenced an action touching on the substance of the present suit before this Court, and as the records before us shows, and as particularly pointed out by the learned 1st Respondent?s counsel, the 2007/08 suits were struck out by the Court owing to the Appellants? compliance with the provisions of Sections 97, 98 and 99 of the Sheriffs and Civil Process Act and the attendant decision of the Apex Court in OWNERS OF ?MV ARABELLA? v NAIC [2008] 11 NWLR (PT 1097) 182, where it was held that leave was required to issue and serve Originating processes on a defendant outside the jurisdiction of the Court. As such, it is not the case that the Appellants failed and/or refused to commence the action against the Respondents within the three months prescribed. The question is whether

the 2007/08 proceedings which was struck can be deemed to have suspended the running of time against the re-issued 2010 proceedings as the Appellants have argued, or put simply, did time freeze from the time the 2007/08 proceedings was commenced up to when it was finally struck out for failure to obtain leave to issue and serve the Writ of Summons.
Without necessarily discountenancing the arguments canvassed by the learned 1st Respondent?s counsel on this point, I am not persuaded by the arguments of the learned counsel that the circumstances of the instant case, particularly on the extant issue, differs in material respect from the ones in the decision of this Court in SIFAX NIG. LTD v MIGFO NIG. LTD [2016] 7 NWLR (PT 1510) 10, a decision which was upheld by the Supreme Court in SIFAX NIG. LTD & ORS v MIGFO NIG. LTD [2018] 9 NWLR (PT 1623) 138. In that case, sometime in 2005, the Federal Government of Nigeria, through the Bureau of Public Enterprises and the Nigerian Ports Authority, decided to concession Terminal ‘C’ of the Tin Can Island Port in Lagos. Sifax Nigeria Ltd, the 1st Appellant, Migfo Nigeria Ltd, 1st Respondent and Denca Services

Ltd, 2nd Respondent agreed to make a joint bid for the concession and joint management of the said terminal. The parties entered into a Memorandum of Understanding (MOU) dated 27th May, 2005, by which they agreed to work together as Joint Venture Partners if they emerged as the preferred bidders. They also agreed to incorporate a “special purpose vehicle” which would be used to operate and manage the terminal. Under the MOU, the parties agreed that the Appellant, the 1st Respondent and 2nd Respondent would hold the shares in the proposed SPV in the ratio of 40%, 30% and 30% respectively, and that the respective Chairmen or Chief Executive Officers of these companies would be entitled to be appointed as directors of the said SPV.
?When the joint bid succeeded, the 1st Appellant incorporated an entity known as ‘Ports and Cargo Handling Services Ltd, the 5th Appellant, along with the 3rd and 4th Appellants, and to the exclusion of the Respondents. Consequently, the Respondents filed an action against the Appellants at the Federal High Court seeking an order of specific performance of the terms of the MOU. Judgment was delivered in favour of the Respondents at

the Federal High Court. The Appellants? appeal to the Court of Appeal was dismissed, and the Federal High Court’s decision was upheld. Dissatisfied, the Appellants further appealed to the Supreme Court, which struck out the appeal on the basis that, the Federal High Court’s jurisdiction does not include adjudicating on disputes arising from simple contracts.
Consequent upon the Supreme Court’s decision, the Respondents filed a new suit at the High Court of Lagos State on 18th July, 2012. The Appellants filed an objection, invoking Section 8(1)(a) of the Limitation Law of Lagos State which provides that claims based on simple contracts cannot be sued on after 6 years. The Appellants, therefore, argued that the Respondents’ claim had become time-barred having been instituted after 6 years from the date the Respondents’ alleged claim for breach of the MOU arose in 2006.
The trial Court dismissed the Appellants’ objection and held that the Respondents’ claim was not Statute-barred. Dissatisfied with both decisions, the Appellants then appealed to this Court, and this Court while affirming the decision of the lower Court, per IKYEGH, JCA:<br< p=””

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time ceases to run when the Plaintiff commences legal proceedings in respect of a cause of the action in question is quite persuasive on this recondite area of law and it accords with justice and common sense. Where an aggrieved person commences an action within the period prescribed by the statute and such action is subsequently struck out for one reason or the other without being heard on the merit or subjected to an outright dismissal, such action is still open to be recommenced at the instance of the Claimant and the limitation period shall not count during the pendency of the earlier suit. In order words, computation of time during the pendency of an action shall remain frozen from the filing of the action until it is determined or abates. Thus in the instant case time ceases to run from the filing of suit No. FHC/L/CS/664/2006 on 9-8-2006 until the 8-6-12 when it was struck out by the Supreme Court. My conclusion therefore is that the instant case is not caught by the statute of limitation. In this regard it becomes an unnecessary academic exercise to engage in the discuss whether the action is exempted from the application of

Section 8(1)(a) of the Limitation Act by virtue of Sections 13 and 58 thereof?.?
On how to construe statute of limitation with respect to when it applies to an action pending in Court, IKYEGH, JCA said, and I entirely agree with him and adopt the reasoning as mine, that:
“…whether limitation enactment applies to an action while it is pending in Court appears to fall within dry area of jurisprudence. I believe, most respectfully, that in construing statutes of this nature some measure of good or common sense should be brought to bear on the statutory provisions under construction for the purpose of meeting the mischief the enactment is intended to cure and/or the object of the statute vide Barnes v. Januis (1953) 1 WLR 649 cited with approval in Elabanjo v. Dawodu (2006) 15 NWLR (Pt.1001) 76 at 138 per the judgment of Ogbuagu, J.S.C., (as he was). I think it is necessary to state from the onset that the purpose of any limitation enactment is to discourage and/or stamp out stale claims arising from the lethargy of the claimant whose inactivity would have caused evidence in the case to disappear or create lapse of memory of the witnesses in the

case with the passage of time thus placing the opponent on disadvantage in meeting the case in Court. There is a passage in the book titled ‘Limitation Periods’ (8th Edition) paragraph 2.001 in pages 29 – 30 written by Professor Andrew McGee, (Professor of Law), which was cited by the respondents where it is stated inter alia that – “Time ceases to run when the plaintiff commences legal proceedings in respect of the cause of action in question”. The learned author cites the old English case of Manby v. Manby (1876) 3 Ch.101, where Malins, V.-C., held that the bringing of a creditor’s petition in an administration action saved the petition from becoming statute barred but it did not save the debt from becoming statute barred for other purposes showing time ceased to run during the pendency of the creditor’s petition only. The case of Lefevre v. White (1990) 1 Lloyd’s Rep. 569 is also cited by the learned author where Popplewell, J., held that in a personal injuries action the pendency of the action stopped time from running for the purpose of limitation period, but it did not cover the suit brought by the plaintiff against the insurers after the defendant

became bankrupt and the suit against the insurers was filed outside the limitation period. The learned author further cites the unreported case of Virgo Steamship Co. v. Skaarup Shipping Corporation decided on 21-6-88, where the plaintiffs had begun separate actions against each of two defendants. And after the expiry of the limitation period the plaintiffs sought to add first defendants in the action against the second defendants, arguing that the running of time had been suspended by the bringing of the action against the first defendants; but Hobhouse, J., held that the action brought against the first defendants was effective to stop the running of time only for the purposes of that particular action. The English Court of Appeal case of The Kapetan Markos (1986) 1 Lloyd’s Rep.211 was further referred to by the learned author in support of the same proposition. I am persuaded by the works of Professor Andrew McGee (supra) and the foreign cases cited therein by the learned author to hold that time ceased to run for the purpose of limitation period during the pendency of the respondents’ action at the Federal High Court, the Court of Appeal and the Supreme

Court between 2006 and 08-06-12. Further, to accede to the appellants’ contention that time should not run during the pendency of an action in Court for the purpose of Limitation Law would, in my modest opinion, unwittingly permit the Legislature, to take over control of the time-table of litigation indirectly or by subtle means, to wrongly/technically dictate the pace cases are heard in Court under the cloak of limitation enactment. This will create the alarming scenario in which pending cases caught by the effluxion of time and objection to their determination on the merit on account of lapse of time so upheld would meet undeserved grief. Or it may create the dangerous repercussion of stampeding the Court to operate on full throttle to grapple with time in the course of which justice may be sacrificed on the altar of neck-breaking speed or indecent haste which will drain the adjudication of the dispute of the patience, fairness, diligence, or balanced/even handed justice which it is wont to have, which will be a sad day for the administration of justice?.?
Upon further appeal to the Supreme Court, AUGIE, JSC who delivered the leading

judgment, gave the reasoning expressed by IKYEGH, JCA judicial imprimatur when he held as follows:
“…to accede to the … contention that time should not run during the pendency of an action in Court for the purpose of Limitation Law would, in my modest opinion, unwittingly permit the Legislature, to take over control of the time-table of litigation indirectly or by subtle means, to wrongly/technically dictate the pace at which cases are heard in Court under the cloak of limitation enactment. This will create the alarming scenario in which pending cases caught by the effluxion of time and objection to their determination on the merit on account of lapse of time so upheld would meet undeserved grief. Or it may create the dangerous repercussion of stampeding the Court to operate on full throttle to grapple with time in the course of which justice may be sacrificed on the altar of neck-breaking speed or indecent haste which will drain the adjudication of the dispute of the patience, fairness, diligence, or balanced/even-handed justice which it is wont to have, which will be a sad day for the administration of justice…”
?I find it difficult to accept

as well founded the submissions of the learned Respondents? counsel that the date to reckon with is the date the Appellants re-issued the 2010 proceedings and/or that the 2007/08 proceedings never existed for the reason that it was struck out by the Court for failure to seek leave to issue and serve the Originating Processes in that proceedings. Certainly, to accede to the submissions of the Respondents? learned counsel that the suit leading to this appeal relates to incidents that occurred in 2007, and which suit was commenced in 2010, three years beyond the 3 months time limit prescribed by Section 2(a) of the POPA, is statute barred, without taking into account the fact that the Appellants had ipso facto earlier commenced an action within time, even though it was subsequently struck out, is in my modest opinion, an aberration.
Contrary to the submission of the 1st Respondent?s counsel, the reason(s) for the striking out of the 2007/08 proceedings is of no moment, for the purpose of determining the issue as to whether the re-issued proceedings is statute-barred. I agree with the learned Appellants? counsel, when he argued in the

Reply Brief that the SIFAX?s decision was not based on the fact that the case wrongly issued at the Federal High Court, Lagos could have been transferred to the Lagos State High Court pursuant to Section 22 of the Federal High Court Act. As a matter of fact, when a matter is struck out by the Court, that does not necessarily mean the end of the matter. Such action is merely suspended, so that if the proper procedure is followed and complied with by the party whose matter is struck out, the Court is bound to entertain the claim and determine the suit on its merit. For the avoidance of doubt, the suit is seen to pending and not dead. Hear what IKYEGH, JCA has to say again on this issue:
“The appellants argued that a case struck out is dead. But the Supreme Court case of Alhaji Haruna Kassim (Trading as Cash Stores) v. Hermann Ebert (1966) N.N.L.R. 75 at 76 – 77 held inter alia that a suit struck out is still pending and that – “As Lord Jessel, M. R., put it in Re Clagett’s Estate, Fordham v. Clagett (1882) 20 Ch.D. 637 at 653, – A cause is said to be pending in a Court of justice when any proceeding can be taken in it. That is the test. If you can

take any proceeding it is pending”. We therefore find it difficult to see how the claims can be said to be statute barred, and we think the learned trial judge was right to have rejected this plea”. The old English case of Re Clagett (supra) at 653 was also applied in the case of Renner v. Thensu and Ors. (1930) 1 W.A.C.A. 77 at 78 in which the phrase ‘pending’ was held in the judgment of Hall, J., (with Deane, C.J., and Sawry-Cookson, J., in concurrence), using the words of Jessel, M. R., inter alia to mean that – “‘Pending’ does not mean that it has not been tried. It may have been tried years ago. In fact in the days of the old Court of Chancery, we were familiar with cases which had been tried fifty or even one hundred years before and which were still pending. Sometimes, no doubt, they require a process which we call reviving, but which the Scotch call waking up; but nevertheless they were pending suits…”. Further, the Apex Court held in the case of Panalpina World Transport (Nig.) Ltd. v. J. B. Oladeen International and Ors. (2010) 19 NWLR (pt.1226) 1 at 20 per the lead judgment of Adekeye, J.S.C., (as he was) that when a matter is struck out it is

still alive and kept in the Court’s general cause list and that – “When an order is made in respect of an application not heard on the merits, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which is not based on the merits, such order is still considered in law a mere striking out. When a matter is struck out in such circumstances, there is liberty to relist. The simple explanation is that while the matter is discontinued from that date, it is still alive and kept in the Court’s general cause list and can be brought back to the hearing cause list… In such a case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the order of striking out that the plaintiff has an option to relist. The matter struck out has not left the cause list – as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago. Alor v. Ngene (2007) All FWLR (Pt.362) pp.1836; (2007) 17 NWLR (pt.1062) 163;

Waterline Nigeria Limited v. Fawe Servies Limited FWLR (Pt.163) pg.88”. (My emphasis). See also the Supreme Court case of Abey v. Alex (1999) 14 NWLR (pt.637) 148 at 162. In my modest view, it follows that the revival of the action after it had been struck out was still the continuation of the same action that was struck out, so the stoppage of time during the pendency of the action that was struck out would count in favour of the renewed action at the Court with the requisite jurisdiction of the Court below.?
Without any modicum of doubt, the reason for striking out a suit is immaterial when the action is re-commenced and an objection that the suit is statute-barred is raised, unless it is shown that the earlier suit was struck-out on the ground of locus standi where the earlier action was not commenced by the proper party as Plaintiff or against a proper party as defendant. In the recent decision of this Court in UGWU v REAGAN REMEDIES NIG. LTD (2018) LPELR ? 46255 (CA). In this case, it is not the contention that there was no proper party in relation to the 2007/08 proceedings and it is to this extent that I am of the view that the Appellants? suit is

not statute barred. The learned trial judge therefore erred when she held that there was ?indolence on the part of the Appellants? by commencing the action in 2010, without considering the consequence of the striking-out of the 2007/08 proceedings which was commenced within the prescribed period under Section 2 (a) of the POPA and Section 53(1) of the NIMASA Act.
?
Meanwhile, the law as I know it is well settled that an appeal is re-hearing of the suit at the lower Court and also that in determining the question as to whether a suit is statute-barred, the immediate materials to be considered by the Court are the writ of summons and the averments contained in the Statement of Claim, and where begun by originating summons, as in this case, the averments contained in the Affidavit in support of the Originating Summons. See DANTATA v MOHAMMED [2000] 7 NWLR (PT 664) 176; HASSAN v ALIYU [2010] 17 NWLR (PT 1223) 547. A consideration must be given to the averments contained in the Appellants? Affidavit in Support to ascertain when the alleged wrong was committed and by comparing that date with the date on which the Originating Summons was filed.

It is not in dispute that the Originating Summons in the instant case was filed sometime in December, 2010 and subsequently amended. In the affidavit in support of the Amended Originating Summons at pages 30 – 33 of the record of appeal, the deponent, one Festus Onyi stated as follows:
?3. That Mr. Chip Earle, the General Counsel of Transocean, Europe and African Unit, informed me by telephone conversation and email exchanges at various times between 10:3am and 4:00pm on October 29, 2010 and November 10, 2010 and I believe as follows:
(a) That the Plaintiffs are related entities that own or operate drilling rights within and outside the territorial waters of Nigeria.
(b) That the 1st Defendant served on the 1st Plaintiff, a demand notice for ?payment of 2% surcharge on contract sum performed by all vessels engaged by the 1st Plaintiff on offshore and midstream activities under the provisions of the Costal and Inland Shipping (Cabotage) Act 2003?. A copy of the demand notice dated 3rd September 2007 and which the 1st Defendant served on the 1st Plaintiff is annexed hereto and marked Exhibit ?FO1?.
(c) That on

30th October 2007, the 1st Plaintiff received from the 1st Defendant, another demand letter dated 24th October 2007 by which the 1st Defendant introduced ?Messrs. World Class Consultants Limited who have been appointed as Consultants to Nigerian Maritime Administration and Safety Agency on the monitoring and collection of the statutory 2% surcharge on the contracts performed by vessels engaged in coastal shipping trade,?. The 1st Defendant attached to the letter three other documents namely, Information Required for the Inspection in respect of 2% Cabotage Surcharge for the Period April 1st 2004 to August 31st 2007 scheduled for 22nd November 2007?, list of ? Vessels to be covered by the Inspection Team? and a list of vessels including drilling rigs belonging to ?Transocean Inc?. A copy of the said 1st Defendants letter dated 24th October 2007, together with the documents attached thereto is annexed hereto and marked as Exhibit ?FO2?
(d) That the 1st Defendant served, also, on the 3rd and the 4th Plaintiffs separated demand notices/letters dated 24th October 2007 by which the 1st Defendant introduced

?Messrs. World Class Consultants Limited who have been appointed as Consultants to Nigerian Maritime Administration and Safety Agency on the monitoring and collection of the statutory 2% surcharge on the contacts performed by the vessels engaged in coastal shipping trade attached to the letter three other documents namely, ?Information Required for the Inspection in respect of 2% Cabotage Surcharge for the period April 1st 2004 to August 31st 2007 scheduled for 22nd November 2007?, list of ?Vessels to be covered by the Inspection Team? and a list of vessels including drilling rigs belonging to ?Transocean Inc?. A copy of the demand letter/ notice dated 24th October 2007 and addressed to the 3rd Plaintiff hereto annexed and marked as Exhibit ?FO3?. A copy of the demand letter/notice dated 24th October 2007 addressed to and served on the 4th Plaintiff whose name was wrongly stated in the letter as Global Santafe Nigeria Ltd is annexed hereto and marked as Exhibit FO3.
(e) That the Plaintiffs? Drilling Rigs do not engaged in any form of carriage or transportation of goods and services, under the

coastal and territorial waters of Nigeria.
4. That upon being served with the demand notice/letters, the 1st and 2nd Plaintiffs, acting through their Solicitors, Messrs. Udo Udoma & Belo-Osagie served on the 1st Defendants, a Pre-action notice is annexed hereto and marked as ?Exhibit FO4?. Similarly, upon being served with the demand notice/letters, the 3rd and 4th Plaintiffs, acting through their Solicitors, Messrs. Udo Udoma & Belo-Osagie, served on the 1st Defendant, a pre- action notice dated 8th February 2008 but received by the 1st Defendant on the 11th February 2008. A copy of the pre-action notice is hereto annexed and marked as Exhibit ?FO5?
5. That in April 2007, the 2nd Defendant ( Minister of Transport) issued the ?Guidelines for the implementation of the Coastal and Inland Shipping ( Cabotage) Act 2003 and in issuing the Guidelines, the Ministers purported to include Drilling Rigs in the category of vessels to be registered under the Act, and by extension, requiring the Plaintiffs to make payments of the 2% surcharge on contracts performed by their Drilling Rigs carrying on business within the

coastal and territorial waters of Nigeria.
6. That Drilling Rigs are not among the vessels that are required to be registered under the Act, nor more are they vessels in respect of which payments are required to be made of the 2% surcharge on contracts performed under the Cabotage Act.
7. That the demand notice which were served on the Plaintiffs have not been withdrawn and are still subsisting notwithstanding that a Federal High Court, sitting in Lagos and presided over by Honourable Justice Dan Abutu had, in its decision made on 17th August 2008, in Suit No. FHC/L/CS/78/2008: Noble Drilling (Nigeria) Limited V. Nigerian Maritime Administration and Safety Agency (NIMASA) and Minister of Transportation [the same defendants in this suit] decided, amongst others, that drilling rigs are not vessels within the purview of the definition of vessels under the Cabotage Act and also, declared as wrongful, the listing by the 2nd Defendant (Ministers of Transport) of rigs in clause 9.1.1 of the Guidelines. A certified true copy of the decision is hereto attached and marked as Exhibit ?FO6?

In view of the foregoing, the question that arise

will be as to when the cause of action in the instant case arose. To my mind, the averments reproduced above indicates that there are two distinct cause of action giving rise to the Appellants? suit. First, is in relation to the demand notices issued to the Appellants for the payment of 2% surcharge on contract sum performed by all vessels engaged in offshore and midstream activities. Now, the Appellants? second cause of action is in relation to the challenge to power of the 2nd Respondent, by virtue of a Guideline, include Drilling Rigs as Vessels contrary to the express definition of vessels under the Cabotage. The contention of the Appellants here is that drilling rigs are not vessels within the purview of the definition of vessels under the Cabotage Act. Therefore, the Appellants are contending that the Minister has acted ultra vires and in contravention of the provisions of the Cabotage Act by including Drilling Rigs as Vessels and demanding that they pay the 2% surcharge.
?
While the issuance of the demand notices by the Respondents can easily be ascribed to act done in pursuance or execution or intended execution of any Act or Law or of

any public duty or authority, in respect of which an action relating thereto must be commenced within three months after the issuance of the said demand notices, thereby falling within the exclusive ambit of Section 2(a) of POPA, I am not persuaded by the arguments of the Respondents? counsel that where as in the instant case, a party seeks to challenge the provision of a Subsidiary Legislation, as the Appellants seek to do here, such action must be brought within a limitation period. I am persuaded by the arguments canvassed by the learned Appellants? counsel, relying on the decision of this Court, per OGUNWUMIJU, JCA in OBI-AKEJULE v DELTA STATE GOVERNMENT [2009] 17 NWLR (PT 1170) 292 at 308, Paras G ? H, relying on the decision in the Supreme Court in PLATEAU STATE v A.G. FEDERATION [2006] 3 NWLR (PT 967) 346 that;
?there can be no limitation to the challenge of the validity of any legislation as any law and indeed the Constitution is a living document and as long as it is in force, its validity can be challenged.?
?My view, which I believe to be the correct one, and for right reason, is that, in so far as the

Appellants? suit borders on a challenge to the validity of a legislation, primary or subsidiary as it may be, no limitation law can bar a right of action to come before the Court on that basis. It is difficult to agree with the learned counsel to the 1st and 2nd Respondents respectively to the effect that POPA will limit or preclude the Appellants from challenging the validity of the provisions of the Cabotage Guidelines which has unlawfully included Drilling Rigs as a Vessel contrary to the provisions of the Cabotage. A fortiori, even if we found that the case of the Appellants? suit borders on challenging the demand notices, a careful reading of the reliefs sought by the Appellants show that only one relief out of the eight reliefs sought, relates to the said demand notices; whereas the other reliefs borders on the challenge to the said Guidelines. As a matter of fact, without necessarily taking a view on the validity or otherwise of the Cabotage Guidelines, I believe if the Court is able to find and reach the conclusion that Drilling Rigs were invalidly included as Vessels contrary to the provisions of the Cabotage Act, and thus not liable to

pay the 2% surcharge, the natural consequence will be that the demand notices issued on the Appellants cannot stand. To the extent that, the material and primary issue before the Court is a challenge on the validity of the Cabotage Guidelines, I am persuaded that the Appellants? suit cannot be statute-barred, and it is on this basis alone, that I find in favour of the Appellants and resolve the second issue in their favour.

The third issue is whether the lower Court was right to hold that the 1st Respondent?s counter-claim was procedurally proper? The question has been answered by this Court in a recent case of APAPA BULK TERMINAL LIMITED & ORS v NIGERIAN SHIPPERS COUNCIL & ANOR (2018) LPELR ? 44802 (CA), where UWA, JCA held and I agree with the reasoning, that:
“As a preliminary point, the action in the lower Court was commenced by originating summons. The learned senior counsel to the appellants challenged the counter claim in that it was also brought by the same procedure. The trial Court relied on Order 10 Rules 3(1) & (2), Order 13 Rules 35 (15) and 36 (2) of the Federal High Court (Civil Procedure) Rules, 2009 and

the decision of this Court in IBUM OLUMBA & 2 ORS VS. THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF THE CROSS and STAR (2012) LPELR – 19713 (CA) which relied on Order 13 Rules 36 and 38 of the Cross River State (Civil Procedure) Rules, 2009 which provisions are in pari materia with Order 13 Rules 35 (15) and 36 (2) of the Rules of the Federal High Court amongst other legal authorities cited and relied upon by the learned trial judge Order 10 Rule 3(1) made it clear that in any action a Defendant is entitled to counter-claim instead of bringing a separate action. There is no exclusion of an original action brought by originating summons as in the present case. Further, by Order 13 Rule 36(2) of the Federal High Court Rules, where a counter claim is pleaded, a reply thereto is a defence to the counter claim and is subject to the Rules applicable to a defence under the Rules. I hold that a defendant can file a counter claim in an Originating Summons; therefore the 2nd Respondent’s mode of filing its counter claim cannot be faulted?.?
?See FRIDAY & ORS v THE GOVERNOR OF ONDO STATE & ANOR (2012) LPELR – 7886 (CA). To my mind, the trial

Court was right to have held that the 1st Respondent’s counter claim was properly filed in law and in accordance with the Rules of the Court.

Meanwhile, it is also the contention of the Appellants? learned senior counsel that paragraphs 46 – 62 of the 1st Respondent?s Counter Affidavit incorporating the counter-claim violate Section 115(2) of the Evidence Act, 2011, which provides that ?an affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.? Although the learned Appellants? counsel specifically points out that paragraph 62 of the counter affidavit contains a prayer for declaratory and other relief and is incurably defective, learned senior counsel failed, refused and/or neglected to state in what way the said paragraphs have indeed violated Section 115(2) of the Evidence Act, 2011. It is not enough for counsel to refer to the provision of the Act and proceed to simply argue that the paragraphs have violated the said section, counsel must as a matter of necessity show to the Court how each and every paragraph have violated the said section. In this case, this was not done.

A fortiori, I have taken a careful look at the said paragraphs, particularly as contained in pages 192 – 195 of the record of appeal, and I am not persuaded in any way that they had ipso facto breached Section 115(2). As a matter of fact, the said paragraphs in my view and rightly so, contains a narration of facts in support of the case of the 1st Respondent and no more. Contrary to the contention of the Appellants? counsel, paragraph 62 contains no more than the oath wherein the deponent states expressly thus: ?I swear to this counter-affidavit in support of the 1st Defendant?s opposition to the originating summons and also its counter claim against the 1st Plaintiff in good faith believing the contents to be true and correct in accordance with the Oaths Act.?
?
The reliefs referred to by the Appellants? counsel had been deliberately (in the 1st Respondent?s wisdom) stated separately in the next un-numbered paragraph, independent of the preceding paragraph containing the Oath. Even if the Appellants? contention is upheld, I believe, having held that it is proper for a defendant to incorporate his counter-claim in a

counter affidavit filed in response to an affidavit in support of an Originating Summons, it should be expected that the Defendant should include the reliefs being sought. As such, I resolve this aspect of the issue against the Appellants.

The next question will turn on a determination of the merit of the case before the Court as to whether a ?drilling rig? simplicita comes within the definition of a vessel under the Cabotage Act. However, before I consider this issue, I must say quite firmly, particularly in relation to the Appellants? contention that the lower Court erred to have held that the counter-claim failed only because of want of proof of quantum. I agree with the Appellants? counsel on this point. It is evident from the record of appeal, particularly at pages 226 – 231 of the record of appeal, that the Appellants joined issues with the Respondents, contending in the main, that the drilling rigs owned or operated by them are not designed for marine navigation and does not fall within the definition of a vessel under the Cabotage Act and are thus liable to pay the 2% surcharge. As such, in as much as the 1st

Respondent?s bothers on the Appellants? obligation to pay the 2% surcharge, the learned trial judge ought to have considered and determined the question as to whether drilling rigs falls within the definition of vessel under the Cabotage Act and the Cabotage Guidelines before considering the evidence in support of the amount counter-claimed by the 1st Respondent. As a matter of fact, the first reliefs sought by the 1st Respondent is for ?a declaration that the rigs owned and/or chartered and being used or operated by the 1st Plaintiff and/or on charter/hire to international oil companies within Nigerian Exclusive Economic Zone for drilling oil wells and work over wells are vessels and carry on cabotage trade and as such they are eligible for registration under the Cabotage Act, 2003 and Guidelines made pursuant to it and the 1st Plaintiff and/or the rigs are liable to pay to the 1st Defendant, the tax/revenue of 2% surcharge on the contract sums performed by the rigs.? By this relief, the Court is bound to consider and rule on the question(s) giving rise to the reliefs sought. This was not done in the instant case; it is an error which

will not be allowed to stand.

Let me pause and briefly say, in addition to the view I earlier expressed in relation to the first and second issue, that even if we had earlier found that the Appellants? action is statute barred as presently constituted, having been commenced in 2010, outside the three months prescribed, in so far as the relief supra sought by the 1st Respondent borders essentially on a determination of the question as to whether drilling rig is a vessel, the Court is empowered to consider and determine the suit on the authority of OGLI OKO MEMORIAL FARMS LTD. ANOR v NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LIMITED & ANOR [2008] 12 NWLR (PT 1098) 412; DABUP v KOLO [1993] NWLR (PT 317) 254 to the effect that a counter claim is a separate, independent and distinct action which is not subservient to the principal action filed by a Plaintiff. Before a defendant can be entitled to judgment as per his counter claim, he must prove his claims against the opposite party. In UNITY BANK v KAY PLASTICS (NIG.) LTD & ANOR (2018) LPELR ? 44977 (CA) while relying on the decision of the Apex Court, per NNAEMEKA-AGU, JSC in OJIBAH v OJIBAH

[1991] 5 NWLR (PT 191) 296 held that
?even if a claim is held statute barred, not prosecuted, withdrawn, struck out for failure to disclose cause of action, declared incompetent for any other reason or even fails on the merit for lack of proof, the counter-claim is not affect

Now, learned Appellants? counsel has urged this Court to invoke the provision of Section 16 of the Court of Appeal, although incorrectly stated as Section 15 in the Appellants? brief of argument, to exercise its discretion to determine the issues in the suit. Section 16 of the Court of Appeal Act reads:
?The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or

taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.?
Although the above provision confers general powers on this Court to determine the real question in controversy in the appeal, there are certain conditions that must exist before the said power can be invoked. The Apex Court stated the conditions in the case of OBI v INEC & ORS (2007) LPELR ? 2166 (SC) in the following words:
“The purpose of Section 16 aforesaid, is in my view, to obviate delayed justice. It follows from what I have been saying above, that certain conditionalities must be present before the provisions of this section can be invoked; and they

are:-“(1) the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it; (2) the real issue raised up by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal;(3) all necessary materials must be available to the Court for consideration;(4) the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and (5) the injustice or hardship that will follow is the case is remitted to the Court below, must clearly manifest itself
See also FALEYE & ORS. v OTAPO & ORS. [1995] 3 NWLR (PT 381) 1; INAKOJU v ADELEKE [2007] 4 NWLR (PT 1025) 423; DAPIAN LONG & ORS. v DARIYE [2007] 8 NWLR (PT 1036) 239. In this case, the five conditions stated in OBI v INEC & ORS (supra) cumulatively co-exist in this case. This appeal is therefore, an appropriate case for this Court to invoke its general powers under Section 16 of the Court of Appeal Act. I so hold.
?
In the light of the foregoing, I bear in mind that the real question in

controversy is whether ?drilling rigs? falls within the definition of ?vessel? under the Cabotage Act and whether the Minister acted ultra vires when he made the Cabotage Guidelines to include drilling rigs among as a vessel for which payments should be made in respect of the 2% surcharge under the Act. In determining this question, recourse shall be had to the relevant provision of the Coastal and Inland Shipping (Cabotage) Act, No 5 of 2003. I take judicial notice of the fact expressly stated that the purpose for which the Cabotage Act was enacted is; ?to restrict the use of Foreign Vessels in Domestic Coastal Trade to promote the development of Indigenous Tonnage and to establish a Cabotage Vessel Financing Fund and for Related Matters.? As such, ?Coastal Trade? or ?Cabotage? is defined under Section 2 of the Cabotage Act to mean:
(a) The carriage of goods by vessel, or any other mode of transport, from one place in Nigeria or above Nigeria waters to any other place in Nigeria or above Nigeria waters, either directly or via a place outside Nigeria and includes the carriage of goods in relation

to the exploration, exploitation or transportation of the mineral or non-living natural resources of Nigeria whether in or under Nigerian waters;
(b) The carriage of passengers by vessel from any place in Nigeria situated on lake of river to the same place, or to any other place in Nigeria, either directly or a place outside Nigeria to the same place without any call at any port outside Nigeria or to any other place in Nigeria, other than as an in -transit or emergency call, either directly or via a place outside Nigeria;
(c) The carriage of passengers by vessel from any place in Nigeria to any place above or under Nigerian waters to any place in Nigeria, or from any place above Nigerian waters to the same place or to any other place above or under Nigerian waters where the carriage of the passengers is in relation to the exploration, exploitation or transportation of the mineral or non -living natural resources in or under Nigerian waters; and
(d) The engaging, by vessel, in any other marine transportation activity of a commercial nature in Nigerian waters and, the carriage of any goods or substances whether or not of commercial value within

the waters of Nigeria;?
The same Section 2 defines a vessel to;
?include any description of vessel, ship, boat, hovercraft or craft, including air cushion vehicles and dynamically supported craft, designed, used or capable of being used solely or partly for marine navigation and used for the carriage on through or under water of persons or property without regard to method or lack or propulsion.?
By Section 22 of the Act every vessel used for coastal trade must be registered. The section reads:
?(1) Notwithstanding the provisions of any other laws and subject to Section 47 every vessel intended for use under this Act shall be duly registered by the Registrar of Ships in the Special Register for Vessels and Ship Owning Companies engaged in Cabotage and shall meet all the requirements for eligibility as set forth under this Act and the Merchant Shipping Act and its amendments to the extent that the said Merchant Shipping Act is not inconsistent with the provisions of this Act.
(2) A vessel intended for use in the domestic trade whether for coastal or inland waters shall obtain all the applicable licenses and

permits as shall from time to time be determined by the Minister and the relevant Agencies of the Government.
(3) In order to carry out its functions under this Act, the minister shall on a continuous basis collect information and keep records in the Special Register concerning the availability, characteristics and uses of Nigerian vessels.
(4) The minister shall immediately after the commencement of this Act issue appropriate guidelines and criteria for the registration of bareboat vessel in the Cabotage Register.
(5) Vessels eligible for registration under this Act include:
(a) passenger vessels;
(b) crew boats;
(c) bunkering vessels;
(d) fishing trawlers;
(e) barges;
(f) off-shore service vessels;
(g) tugs;
(h) anchor handling tugs and supply vessels;
(i) floating petroleum storage;
(j) dredgers;
(k) tankers;
(l) carriers; and
(m) any other craft or vessel used for carriage on, through or underwater of persons, property or any substance whatsoever.?
?On the other hand, Section 43 of the Cabotage Act reads:
?There shall be paid into the Fund:<br< p=””

</br<

(a) a surcharge of 2 per centum of the contract sum performed by any vessel engaged in the coastal trade:
(b) a sum as shall from time to time be determined and approved by the National Assembly:
(c) monies generated under this Act including the tariffs, fines and fees for licences and waivers;
(d) such further sums accruable to the fund by way of interests paid on and repayment of the principal sums of any loan granted from the Fund.?
The Fund referred to in Section 42 of the Cabotage Act is Cabotage Vessel Financing Fund and by Section 43(b) supra, a surcharge of 2% of the contract sum performed by any vessel engaged in coastal trade. It is therefore, abundantly clear that only vessel engaged in coastal trade are liable to pay into the Fund the 2% of the contract sum performed by such vessel. I dare ask! Is a drilling rig, like the one owned and/or operated by the Appellants a vessel within the definition under the Cabotage Act? Without any modicum of doubt, by the definition under the Act, a vessel must be designed, used or capable of being used solely or partly for marine navigation and used for the carriage of persons or

property on, through or under water without regard to method or lack of propulsion. Unless a drilling rig falls within this definition and/or is expressly stated to be among the machineries contained in Section 22(5) (a) – (m), same cannot be deemed to be a vessel eligible for registration under Section 22(1) of the Cabotage Act and liable to pay a surcharge of 2% of the contract sum performed by such vessel engaged in coastal trade. A fortiori, for a Drilling Rig to be classified as a vessel under the Cabotage Act, it must be shown that such Drilling Rig is designed, used or capable of being used solely or partly for marine navigation for the carriage of persons or property on, through and under water. This has not been done in this case.
As a matter of fact, Petropedia, defines Drilling Rig to be:
?a piece of equipment that is used to create holes or wellbores in the earth’s surface. Rigs are massive structures that house all the drilling equipment on board.?
?Drilling rigs are used to locate and extract water, oil, gas or any other product from the earth. They can be used onshore or offshore and are configured to match the product

and environment in which they operate. They are not used for marine navigation and ipso facto not used for coastal trade as envisaged under Section 2 of the Cabotage Act which prescribes that coastal trades involves carriage of passengers and goods by vessel.
I must say that the wordings of the relevant provisions of the Cabotage Act are clear and unambiguous and must be accorded their ordinary meaning. In this respect, the Apex Court has admonished in the case of AMAECHI v. INEC [2008] 5 NWLR (PT 1080) 227 SC, that ?it is certainly not the duty of a Judge to interprete a statute to avoid its consequence.? In the words of MOHAMMED, JSC,
?The consequences of a statute are those of the legislature, not the Judge. A judge who regiments himself to the consequences of a statute is moving outside the domain of statutory interpretation. He has by that conduct engaged himself in morality which may be against the tenor of the statute and therefore not within his judicial power.?
See also ACN & ANOR v INEC [2007] 12 NWLR (PT 1048) 220 SC; KRAUS THOMPSON ORG. v. N.I.P.S.S [2004] 17 NWLR (PT 901) 44; AROMOLARAN v. AGORO (2014)

LPELR ? 24037 (SC) 25, paras. B ? F.
?I have earlier referred to the Long Title to the Cabotage Act and the meaning of coastal trade and cabotage therein and it is obvious that Cabotage essentially involves the movement of goods and passengers from one place in Nigeria or above Nigeria waters to any other place in Nigeria or above Nigeria waters. Unlike under the Admiralty Jurisdiction Act, by Section 25 thereof, wherein drilling rig is expressly to come within the definition of a ship which is defined to means a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved. Under the Cabotage Act, a rig is not listed as one of the vessels that are to be registered, and it is also not involved in the transportation of goods or passengers from one point in Nigeria to the other. I am therefore not persuaded by the argument canvassed by the 1st Respondent?s counsel that drilling rigs are vessels within the meaning of Section 22(5)(m) of the Cabotage Act. To my mind, drilling rig cannot therefore be deemed to be a vessel for the purpose of Section 22 of the Cabotage Act and liable to the 2% surcharge

under Section 43 of the Act.
As I have found that drilling rigs do not fall within the definition of vessels under the Act, and in particular, Section 22(5)(m) of the Cabotage Act, it follows that the attempt by the Minister of Transport to list Rigs under the head of ?Foreign Vessels? in Paragraph 9.1 of the Cabotage Guidelines, so as to make them liable to pay 2% surcharge, is not proper. The essence of the Guideline as a subsidiary legislation is to give effect to the principal legislation and not to deviate from same; it cannot expand or curtail the provision of the substantive statute. See OLANREWAJU v OYEYEMI & ORS (2000) LPELR ? 6045 (CA) where this Court emphasized that a subsidiary legislation derives its authority and validity from and subject to the provisions of the parent enabling statute. As a result, to the extent that the Minister prescribed that rigs are vessels, albeit foreign, and are therefore liable to pay 2% surcharge, the Minister has acted ultra vires, having been unable to show that Drilling Rigs falls under vessels contemplated by Section 22(5)(m);and I have no hesitation in granting the reliefs sought by

the Appellants in their Amended Originating Summons.

As a result, the Appellants? appeal substantially succeeds and is hereby allowed. The decision of the Federal High Court, Lagos Division, coram OFILI- AJUMOGOBIA, J, delivered on 8th February, 2016 is hereby set aside. Parties to bear their respective costs.

CROSS – APPEAL
The cross appeal is based on the 2nd Amended Notice of Cross-Appeal filed 6/2/19 deemed 14/2/19, the Amended Cross Appellant?s brief of Argument filed on 6/2/19 deemed 14/2/19 wherein 3 (three) issues were formulated for determination, to wit:
1. Whether the pre-action notices dated 25/9/2007 and 8/2/2008 (Exhibit F04 AND F05) constituted valid and subsisting pre-notices to the Cross?Appellant on behalf of the 1st, 2nd & 4th Cross-Respondents in this suit No: FHC/L/CS/1536/2010, having been used in the nullified and struck out suit No: FHC/CS/1026/2007 and suit no: FHC/L/CS/5554/2008 (Grounds 2 & 3)
2. Whether the failure of the 3rd cross-respondent to issue and serve on the cross?appellant the 30 days mandatory statutory pre-action notice required by

Section 53 (2) of the Nigerian Maritime Administration and safety Agency Act, 2007 and fatal to suit no: FHC/L/CS/1536/2010 jointly commenced by the 1st, 2nd, 3rd and 4th cross?respondents as co-plaintiffs against the Cross?Appellant herein? (Grounds 6)
3. Whether the Court below was wrong in striking out the cross-appellant?s counter claim on the basis that no credible evidence was put forward by the cross appellant to substantiate the counter- claim (ground 1, 4 & 5)

On the other hand, the Amended cross?respondent?s brief of argument was filed on 14th February, 2019, wherein 3 (three) issues for determination thus;
1. Whether the pre-action notices dated 25 September 2007 and 8 February 2008 (Exhibits FO4 and FO5) constitute valid and substituting pre-action notices to the cross Appellant on behalf of 1st, 2nd and 3rd Respondents in this suit No: FHC/L/1536/2010 having been nullified and struck out suit No FHC/L/CS/1026/2007 and Suit No FHC/L/CS/5554/2008?
2. Whether the alleged failure of the third cross respondent to serve a pre-action notice on the cross appellant invalidates these proceedings brought jointly by

the cross respondents?
3. Whether the Court below was wrong in striking out the cross appellant ?s Counter claim against the first respondent on the basis that no evidence was put forward to substantiate the counter claim?

CROSS APPELLANT?S AMENDED ARGUMENTS
The Counter claimant counsel referred to the considerations of jurisdiction in the case of MADUKOLU v NKEMDILIM (1962) ALL NLR (PT. 2) 531 at 589/590; PLATEAU STATE v AG FED (2006) 1 SC (PT1) 1 AT 72 before submitting that the Cross Appellant entered a conditional appearance considering the provision of Section 53 (2) NIMASA, 2007 which state that having commenced the suit against the Cross Appellant only after serving the Cross Appellant the requisite 30 days written pre-action notice of intention to commence the suit. The said pre- action notice should have clearly stated the cause of action, the particulars of the claim, their names and place of abode and the reliefs sought and waiting for its expiry. He cited NTIERO v NPA (2008) 14 NWLR (PT 1094) AT 146 D ? E.

We submit that failure to serve pre-action notice is fatal to this action and liable to be struck

out; SHUAIBU v NAICOM (2002) 12 NWLR (PT 780) 116; MOBIL PROD. NIG UNLTD v LASEPA (2002) 8 NWLR (PT 715) 489. Counsel submitted that the pre-action notice is mandatory, he cited SHOMOLU LGC v AGBEDE (1996) 4 NWLR (PT 441 ) 174 AT 181 C-E; NNONYE v ANYICHIE (2005) 2 NWLR (PT 910 623 AT 647 (SC); UGWUANYI v NICON INSURANCE PLC (2004) 15 NWLR (PT 897) 612 (CA); OKAFOR v UKADIKE (2009) 1 NWLR (PT 1122) 259A AT 272E; FEED & FOOD FARMS (NIG) LTD v NIGERIAN NATIONAL PETROLUEUM CORPORATION (2009); THE YOUNG SHALL GROW MOTORS LTD v OKONKWO (2010) 15 NWLR (PT 1217) 524 AT 539E; AFRICAN PET LTD v OWODUNNI (1991) 8 NWLR (PT. 210) 391 AT 416.

Cross Appellant submit that is not the same as pre-action notice and that it shows that being notices neither can be used twice in the same proceedings, and that if allowed the mischief behind pre-action notice will be defeated. He cited cases on stare decisis et non quilamovera and the cases of UNILAG v OLANIYAN (1985)1 NWLR (PT.1) 156 AT 165; IBODO v ENAROFIA (1980) 5 – 7 SC 42 AT 50; OKEKE v OKOLI (2000) 1 NWLR (PT. 642) 641 AT 654; FATOLA v MUSTAPHA (1985) 2 NWLR 1438; DR OKONJO v DR MUDIAGA ODJE (1985) 10 SC 267 AT

268.

Cross Appellant submits that the effect of suit FHC/L/CS/1026/2007 and suit FHC/C/L/CS/5554/2008 which were previously struck out were relisted before the Court below which struck them out,they were no longer before that same Court or any other Court and its life had been terminated, he cited Y.S.G MOTORS LTD v OKONKWO (Supra).

On the point that should both suits have existed together it would have constituted an abuse of Court process against FHC/L/CS/1026/2007 & FHC/C/L/CS/5554/2008 which is earlier in time and liable to be struck out, he cited CBN v AHMED (2001) 11 NWLR (PT. 724) 369 at 409 – 410; AGWASIM v OJICHIE (2004) 4 SC (PT 11) 160. He posit that sticking out could not have saved the pre-action notice issued by 1st, 2nd & 4th cross Respondents.

He relied on SKENCONSULT NIG LTD v UKEY (1981) NSCC 1 AT 18; MADUKOLU & ORS v NKEMDILIM (Supra) 2 SCNLR 341 (1962) 1 ALL NLR AT 590; UAC v MACFOY (1961) ALL ER PG 1169; (1962) 6 SC 221; (1962) A.C 152 AT 160.

Counsel submitted that the rationale behind the pre action notice is to enable it explore the possibility of an out of Court settlement through negotiation and save

costs, he referred to AMADI v NNPC (2000) 10 NWLR (PT. 674) 76; ENVIRONMENTAL LITIGATION BY NIKI TOBI IN THE BOOK ENVIRONMENTAL LAW AND POLICY BY SIMPSON AND FAGBOHUN 1998, PG 191; MOBIL PRODUCING NIG UNLIMITED v LASEPA (2002) (Supra) AT 36; EZE v OKECHUKWU (2002) 18 NWLR (799) 348 AT 366 (SC); NIGERCARE DEV CO LTD v A.S.W.B. (2008) 9 NWLR (PT 1093) 498; UMUKORO v NPA (1997) 4 NWLR (PT 502) 656; DE SMITH?S JUDICIAL REVIEW BY SWEEET & MAXWELL, 7TH EDITION (2013) PG 6 PARAS 1-004.

ISSUE 2
On the consequences of non issuance of a pre action notice to suit FHC/L/CS/1536/2010, Cross-Appellant adopted submissions in issue 1 and in addition submits that it?s a pre condition which must be complied with and failure to comply is fatal and is incompetent, he relied on MINISTRY OF EDUCATION, ANAMBRA STATE v ASIKPO (2014)14 NWLR (PT 1427) 351 AT 381F.

He submitted on the contrary without conceding that even if preaction notices were properly served the action would still be incompetent because the 3rd Cross Respondent did not issue any pre-action notice for suit FHL/L/CS/1536/10 and that its failure prevents jurisdiction of the Court from

arising. He further contended that one preaction notice filed by a co-plaintiff cannot cover other co-plaintiffs in the matter, he relied on OJUKWU v ONWUDIWE (1984) 2 SC 15 AT 38; ADEYEMI OGUNNAIKE v TAIWO OJAYEMI (1987) 3 SC 213 AT 247.

He submitted that, that being the position the lower Court should have applied Section 53(2) of NIMASA Act, 2007. He referred to FIRST BANK OF NIG PLC v T.S.A IND LTD (2010) FWLR (PT 537) 633 AT 667-668; PROF ODUTOLA OSILESI v PRO – CHANCELLOR AND CHAIRMAN OF COUNCIL OF OLABISI ONABANJO UNIVERSITY (2015) 18 NWLR (PT 1400) 364 AT 399-400.

He contended that the claim was jointly and Cross Respondents sued as joint plaintiffs and hence, had to swim or sink with their joint reliefs, therefore failure of one to issue a pre action notice affects all of them as co-plaintiffs and they cannot sever their claims or take inconsistent steps, he cited OGOLO v FUBARA (2003) 11 NWLR (PT 831) 231 AT 235 (SC); FADAYOMI v SADIPE (1986) 2 NWLR (PT 25) 736; IGE v FARINDE (1994) NWLR ( PT 354) 42. That the suit FHL/L/CS/1536/10 should have been struck out, he cited PIPELINES AND PRODUCTS MARKETING COLTD v ALMUSMOON SECURITY LTD (2016)

13 NWLR (PT 1528) 69 79.
He argued that it?s not the duty of the Court to do a surgical operation of the Cross Respondent joint claim to sever the 3rd Respondent claim from those of the 1st, 2nd & 4th Cross Respondents He relied on OLISAKWE MADUAFORKWA v ABIA STATE GOVT & 9 ORS (2009) 2 NWLR (PT 1126) 457; NATIONAL UNION OF ELECTRICITY EMPLOYEES & ANOR v BUREAU OF PUBLIC ENTERPRISES (2010) 7 NWLR (PT 1194) 538; UNREPORTED CA/L/726/2008 KEENLINE INVESTMENT LTD & ANOR v PATERSON ZOCHONIS IND PLC & 2 ORS DELIVERED BY THIS COURT ON 16/3/15.
He urged that the issue be resolved in his favour.

ISSUE 3
The Cross Appellant referred to reliefs sought by its counter claim at the lower Court to prove its counter claim, in addition to Exhibit H and I in support of its arguments. He submitted that the essence was to show that the rigs owned or chartered but operated on hire to International oil companies by the 1st Cross Respondent for drilling oil wells within Nigeria Exclusive Economic Zone (EEZ) are vessels and that their drilling, carriage, and other activities are Cabotage within Section 2 of the CA.

?He argued that the

Cross Appellant showed that Exhibit I which showed all the names of owners of rigs, duration and value of contracts and the 2% surcharge to be paid as in paragraph 58-61 of the counter affidavit and counter claim, which is yet to be paid by 1st Cross Respondent, and on this basis a pre judgment and post judgment interest was claimed on the debt, as counterclaimed on the principle that money wrongfully withheld should not to benefit the holder he relied on ADEYEMI v LAN & BAKER (NIG) LTD (2000) 7 NWLR (PT 663) 33 AT 48 D ? E; LONDON CHATHAM AND DOVER RAILWAY CO v SOUTH EASTERN RAILWAY CO (1893) A C AT 437; ADEDEJI v OLOSO 2007 5NWLR (PT 1026)133 AT 165 A ? F; OYOVBIARE v OMAMURHOMU (1999) 10 NWLR (PT 621) 23. To the point that burden shifts to the party whom judgment will be given if no more evidence was adduced.

Cross Appellant submitted that the Cross Respondent did not controvert the counter claim and therefore the findings of the Court below was perverse because it did not demonstrate a proper and adequate appreciation of the evidence on record.

He emphasised that Exhibit I & H were sufficient proof of the claim and they were

unchallenged and majority of averments in counter affidavit and counter claim were deemed admitted and thus needed no proof, he relied on LEWIS & PEAT (NRI) LTD v AKHIMIEN (1976) 7 SC 157; AJIBADE v MAYOWA (1978) 9 & 10 SC 1; MOSHESHE GENERAL MERCHANY LTD v NIG STEEL PRODUCTS LTD (1987) 2 NWLR (PT 55)110 AT 120; IDESOH v ORDIA (1997)2 SCNJ 175 AT 183, ODEBUNMI v ABDULLAHI (1997)2 NWLR (PT 489) 526 AT 540 NZERIBE v DAVE ENGR CO (1994) 8 NWLR (PT 361) 124; BALOGN v AMUBIKAHUN (1985) 3 NWLR (PT 11) 27; LAWSON v AFANI CONT LTD (2002) 2 NWLR (PT 752) 585 AT 624; AKPAN v R.T.Q.I.CHURCH (2001) 15 NWLR (PT 736) 328; OMOBORIOWO v AJASIN (1984) 1 SC 2006 AT 202 0

Learned silk invoked Section 167(d) of Evidence Act against the Cross Respondent and cited the following cases ONONUJU v STATE (2014) 8 NWLR (PT 1409) 345 AT 392 SC; AGBALLAH v CHIME (2009)1 NWLR (PT 1122) 373 AT 435; UDEAGU v BENUE CEMENT COMPANY PLC (2006 ) 2 NWLR (PT 965) 600.

He submitted on the Court?s duty to consider documentary evidence and also the doctrine of res ipsa loquitor applies to the case, he cited UBA PLC v BTL IND LTD (2006) 19 NWLR (PT 1013) 61 AT 137;

OLOWOSAGO v ADEBANJO (1988) 4 NWLR (PT 88) 275; MANAGEMENT ENTERPRISES LTD v OTUSANYA (1987) 2 NWLR (PT 55) 179; SHELL PET DEV CO NIG LTD V AMARO (2000) 10 NWLR (PT 675) 248 AT 279B

He contended that since Exhibit H & I were clearly showing the rigs belong to the 1st Cross Respondent and that they were used for Cabotage, the period and total sum involved, the lower court ought to have entered judgement in favour of the Cross Appellant rather than striking out its counter claim, he cited TSOKWA (NIG) LTD v UBN (1996) 12 SCNJ 445; TORTI V UKPABI & ORS (1984) 1 SC 370; LAWAL v DAWODU (1972) 8 & 9 SC 83 AT 114; ONOBRUCHERE v ESEGINE (1986) 1 NWLR (PT. 19) 779; PSYCHIATRIC HOSPITAL MANAGEMENT BOARD V E.O EJITAGHA (2000)11 NWLR (PT 154) 160; ADEGOKE v ADIBI (1992) 5 NWLR (PT 242) 410; IHEWUEZI v EKEANYA (1989) 1 NWLR (PT 96) 239.

He urged the Court to interfere with the evaluation as the lower Court acted under some misconception, he relied on KATE ENTERPRISES LTD v DAEWOO NIG LTD (1985) 2 NWLR (PT 5) 116; AWANI v OLU OF WARRI (1976) NSCC 494; ODUSOTE v ODUSOTE (1977) 1 ALL NLR 219 AT 223; SONNAR LTD v NORDWIND (1987) 4 NWLR (PT. 66) 520;

MOBIL OIL v FEDERAL BOARD OF INLAND REVENUE (1977) 3 SC 97 141; SOLANKE v AJIBOLA (1968)1 ALL NLR 46; IMONIKHE v A.G BENDEL STATE (1992) 6 NWLR (PT 248) 396 AT 408 D – E; NWABUEZE v NWOSU (1988) 4 NWLR (PT. 88) 257 AT 160; UNILAG v AIGORO (1985)1 NWLR (PT 1) 143 and urged the Court to resolve the issue in favour of the Cross Appellant.

CROSS RESPONDENTS AMENDED ARGUMENTS
ISSUE 1& 2
The Cross Respondents argued issues 1 & 2 together, and submitted that the pre-action notice issue is largely academic because if upheld the name of the Cross Appellant would only be struck out from the main appeal leaving the action against the minister for transport. He urged the Court to strike out issues 1 and 2 on the ground that the Cross Appellant?s brief of argument is academic.

He asked the Court to reject all submissions that the pre action notice died with the striking out of 2007 and 2008 proceedings, on the ground that the Cross Appellant admitted receiving two pre action notices in paragraph 16 of the counter affidavit at page 188, Exhibits FO4 & FO5 to affidavit of Festus Oniyia in support of Amended Originating Summons. Exhibits FO4 & FO5

set out identical reliefs sought by Cross Respondent in the amended originating summons and therefore fulfill all purposes of a pre-action notice; he cited MOBIL PRODUCTION UNLIMITED v LASEPA (Supra)

Secondly, he submitted that the contention of Cross Appellant was not correct and stated that the preaction notice were not suit specific, no suit number was mentioned nor any purpose stated. It barely stated the reliefs sought and therefore, Exhibit FO4 & FO5 were the same and were general notification of the Cross Respondents notice to seek reliefs.

He submitted that the issuer of the preaction notice was not obliged to commence proceedings at all or barring any limitation period to commence at any time prescribed the applicable limitation period has not expired. He further contended that pre-action notices stand alone, independent and not bound to any future litigation and that Exhibit FO4 & 5 were issued in respect of the Cross-Appellant?s demand notices dated 3rd September 2007 and 24th October 2008 and not in respect of any specific suits or legal proceedings.
?
Consequently, the striking out of suit FHC/L/CS/1026/07 and FHC/L/CS/5554/08

on procedural grounds did not obliterate or affect the efficacy of the independent pre-action notices contained in FO4 & FO5.

Learned silk contended that, the striking out means, the plaintiff is free to recommence the suit as if it the first proceedings ever commenced. He further stated that the recommencement of this suits is a revival and continuation of the original action 1026 & 5554 struck out for failure to comply with formalities; SIFAX (NIG) LTD v MIGFO (NIG) LTD (Supra) and that there is no requirement to issue a fresh hearing notice under Section 53(2). The parties? reliefs content is the same and there was no need to serve fresh pre-action notice. He distinguished all cases cited as inapplicable.

In addition, he disagreed with the reason for preaction notice that, the Cross Appellant could not have chosen to negotiate and had no such intention, having filed a counter claim against 1st Cross Respondent.

Learned silk also disagreed that the claims were non-severable, because Order 9 Rule 1 of FHCPR, 2009 allows joinder of several claimants as co-plaintiffs contrary to joint claim alone, he further contented that none

service of the 3rd Cross Respondent?s pre-action notice is at worst like a mis-joinder and that by Order 9 Rule 14, no claim shall be defeated.

He argued that if the name of 3rd Cross Respondent was struck out it would be pointless since the other three can continue the challenge of the demand notices and that the only consequence of non-service is to declare the claim incompetent against the Cross Appellant but be valid against the Minister, coupled with the fact that the proceedings cannot be struck out since, he received 3 pre action notices from the other three joint claimants of intention to challenge.

Again, he faulted by citing cases that are irrelevant to severance, and contended that it will block/impede access to Courts and ought to be flexible, he relied on NATIONAL INSURANCE COMMISSION v OYEFESOBI & ORS (2013) LPELR- 20660 (CA); AFOLABI v GOV. OYO STATE (1985) 2 NWLR (PT 90). He urged the Court to resolve issue 1 in his favour.
?
ISSUE 2
Learned counsel submits that, the counter-claim was not admitted and was indeed hopeless,he disputed the use of originating summons as a commencement mode as inappropriate, he relied on

DOHERTY v DOHERTY (SUPRA); RE POWER (1885)30 CH D 291.

Learned silk for the Cross Respondents submitted that the counter claim was defective on procedural and substantive grounds.

On procedural, he argued that paragraphs 72-80 of the Appellants brief filed by the Cross Respondents in the main appeal and counter affidavit which contained the counter claim caused it to be defective to Section 115 (2) of Evidence Act as prayers and conclusions liable to be struck out.

Substantively, he submitted that 1st Cross Respondent denied that it owed US$38,645,741.82 or any amount in paragraph 22 of their reply affidavit. That there is no shred of evidence in support of the purported counterclaim or indication of the computation and furthermore contains sums accrued in 2004 which are statue barred, therefore, it was premature and Exhibit I did not identify any contract executed or lacked accurate documentations of relevant details.
?
He strongly contended that the Cross Appellant?s disputed counter affidavits could not constitute averments and evidence in proof of the disputed averments at one and the same time. Lastly, the claim was disputed in its

entirety and ought to be begun by writ of summons.

The Cross Respondents submitted that they denied the averments that 1st Cross Respondents rig are vessels or carried on Cabotage or required registration under Section 22 (5) of the Cabotage Act and were not proved as contended.

In respect of interest, he contended that there was no evidence that Cross Appellant borrowed money, or it was caused to do so by the 1st Cross Respondent, therefore, the lower Court dismissed the pre-judgment claim rightly.

He submitted that where pre-judgment interest is claimed and that non-existed in the claim and submitted in contrary that even if interest is to be granted, it is exorbitant as the counter claim is in US dollar. He mentioned varying interest rate and stated that absence of credible evidence to prove same, that lower Court was correct to hold that the Cross-Appellant?s counter claim had not been proved.

AMENDED REPLY
Cross Appellant?s Counsel disagreed that issue 1 of the appeal was academic as argued by the Cross Respondents? counsel, having regards to findings of the lower Court, and contends further that if it

succeeds and the name of 3rd Cross Respondent is struck off, the main appeal cannot survive in the light of the reliefs in the Amended Originating Summons which would be affected. He submitted that the action would not be well constituted without the notices, he distinguished the cases cited by Cross Appellant; ARDO v INEC (2017) LPELR ? 41919 (SC); AGBAKOBA v INEC (2008) 18 NWLR (PT 1119) 489 as not applicable.

Counsel submitted that the Cross Respondents misled the Court in page 8, paragraph 21(h) of his brief that the lower Court at page 372 made a finding that the 2nd Respondent who is not a party herein this appeal having withdrawn its cross appeal on 4/12/18. That the Cross Appellant cannot appeal on a finding not made by the Court against it, he relied on CBN v INTERSTELLA COMMUNICATION LTD (2018) 7 NWLR (PT 1618) 294 AT 319 ? 320H; MOBIL PRODUCING (NIG) UNLTD v MONOKPO (SUPRA); ADEMOLA v SODIPO (1992) 7 NWLR (PT 253) 251.

He disagreed that the fact contents in the notices and the various suits are the same. This cannot be determined by submissions of counsel but by affidavit evidence. He referred to UCHA v ELECHI

(2012) 13 NWLR (PT 1317) 330.

The counsel submitted that the reliefs 1 to 4 cannot be granted in favour of 1st, 2nd & 4th Cross Respondents alone without the 3rd Cross Respondent and emphasised the importance of the suit filed jointly and that Order 9 Rule 1 of Federal High Court (Civil Procedure) Rules, 2009 does not apply. That the 3rd Cross Respondent fell short of condition precedent, therefore, neither Court can grant reliefs 1 – 4 in favour of the 1st, 2nd & 4th Cross Respondents alone because the demand notices were issued jointly and cannot be severed, in addition the claims were that of Co-respondents.

He differentiated pre-action barriers using defective pre-action notice, that in respect of the 1st, 2nd & 4th Cross Respondents, they issued defective pre-action notice on a struck-out suit. While the 3rd Cross Respondent did not issue at all and it differs; OWENA BANK NIGERIA PLC v NSE LTD [1997] 8 NWLR (PT 515) 1 SC.

In response to the counter claim, he argued that in NJC v HON JUSTICE JUBRIL BABAJIDE ALADEJANA (Supra) and OLUMBA v RTBOC & S (Supra) the Court was bound by stare decisis. Furthermore, he posits that the

rule of expressio unis exclusio alterius applied.

Cross Appellant submitted that arguments on procedural and substantive be struck out as they did not rise from the brief. He referred to the counter affidavit at paragraph 6 of the 1st Respondent?s 2nd counter where the Respondent admitted the period of 5/9/08 – 4/9/14 which shows it?s not statute barred and that it was not raised at the lower Court.

Cross Appellant objected to Exhibit I being referred to as hearsay evidence because it came from the custody of NNPC/NAPIMS, a statutory agency in charge of oil, petroleum and gas sector of the economy is in an advantageous position to provide the information besides, he posit that the same Exhibit I was not challenged at the lower Court.

Contrary to the 1st, 2nd & 4th Cross Respondents? submission, he stated that Exhibit 1 is an original public document, hence, needs no certificate. He relied on Section 86 (1) of Evidence Act; ANAGBADO v ALHAJI IDI FARUK (2016) LPELR -41634.

RESOLUTION
The first issue to be determined borders on the validity of Exhibits FO4 and FO5, which were issued before the Cross Respondents commenced the

action that was eventually struck out, as it affects the proceedings leading to the instant appeal. The learned trial judge at pages 371 – 373 of the record of appeal, held as follows:
?On the issues of the pre-action notices, the 1st Respondent went to great lengths to contend that no valid 30-day pre-action notices were issued upon it as required by Section 53(2) of the NIMASA Act. Exhibits F04 and F05 were said to have been spent. A close look at the said Exhibits would easily show that Exhibit F04 was issued in favour of the 1st and 2nd Respondents in suit No. FHC/CS/1026/07, whilst Exhibit F05 was in favour of the 4th Respondent in suit NO. FHC/L/CS/5554/08. The Applicants appear to be relying on the same Exhibits F04 and F05 as pre-action notice for the 3rd Applicant in this matter. The 3rd Applicant was neither a party in suit No. FHC/L/CS/1026/07 nor FHC/L/CS/5554/08. It is therefore very easy to come to the conclusion that as touching the 3rd Respondent, no valid pre-action notice has been filed in this matter as required by Section 53(2) of the NIMASA Act. This is a point that has been tacitly conceded by the Applicants. I am of the firm view

that in resolving the question as to whether Exhibits F04 and F05 are valid pre-action notices for the 1st, 2nd and 4th Applicants, firstly, this Court must consider Exhibits F04 and F05 vis-a-vis the earlier suits filed between the parties and this present suit. The Applicants argued that the facts and circumstances of the earlier suits are the same as the present one; that the question for determination and reliefs sought are equally identical. Inspite of the fact that proceedings of these earlier suits (i.e. FHC/L/CS/1026/07 and FHC/L/CS/5554/08) have not been exhibited before this Court, the 2nd Respondent has not objected this fact. Facts not controverted are deemed admitted; But again, Exhibit F04 and F05 were issued in respect of suits that have been struck out. That brings to the fore the question as to the fate of Exhibits F04 and F05. Did they perish with suits FHC/L/CS/1026/07 and FHC/L/CS/5554/08? In other words, do they have a life of their own, separate from suits FHC/L/CS/1026/07 and FHC/L/CS/5554/08? In my view, the survival of Exhibits F04 and F05 depends solely on the purport or consequence of the striking out of suits FHC/L/CS/1026/07

and FHC/L/CS/5554/08. The law is well-settled on the effect of a striking out vis-a-vis a dismissal?.
It stands to good reasoning that a pre-action notice is nothing more than a notification to a potential defendant of an impending litigation against it in respect of a specified subject matter. That is its essence and nothing more pretentious. It cannot be the law that the pre-action notice must be in respect of any suit in particular. Save for other limitations such as statute bar, a pre-action notice is good for all time. I agree with the Applicants that a party who serves a pre-action notice is neither obligated to commence proceedings at all, nor is he bound to commence same within any specific time after the time prescribed for pre-action notices. In the circumstances, the 2nd Respondent cannot be heard to say the Exhibits F04 and F05 both constitute valid and subsisting pre-action notices to the Respondents on behalf of the 1st, 2nd and 4th Respondents only.?
?
Contrary to the contention of the Cross-Appellant?s counsel, I am persuaded by the reasoning expressed supra by the learned trial judge and the submission of the

100

Cross-Respondents? argument that Exhibit F04 and F05, the pre-action notices issued in respect of Suits no. FHC/L/CS/1026/2007 and FHC/L/CS/5554/2008 have become spent when both suits were struck out, is misconceived. My view, which I believe to be the right one, is that pre-action notices are not tied to individual suit commenced by a Plaintiff in Court. As a matter of fact, a pre-action notice is valid and remains alive for such proceedings that is predicated upon the issues upon which the pre-action notice was given. As the Supreme Court rightly said in MOBIL PRODUCING (NIG.) UNLIMITED v LASEPA (supra);
?a party who served a pre-action notice is not obliged to commence proceedings at all or, barring any limitation period, to commence one within any time prescribed for pre-action notices.?
Without any modicum of doubt, to the extent that Exhibits F04 and F05, by the pre-action notices issued by the 1st, 2nd and 4th Respondents have knowledge of the grievance of the parties to which they intend to approach the Court for re-dress and the present suit has not deviated from the said complaint, I am unable to agree with the

101

Cross-Appellant that the said pre-action notices have become spent. For the avoidance of doubt, since the purpose of pre-action notice is to give the Cross-Appellant the opportunity to seek amicable resolution of the festering dispute and to also allow the defendant to afford itself sufficient time to prepare its defence, it is my considered opinion that this has been achieved in this case by the issuance of Exhibit F04 and F05 to the Cross Appellant. See ZAMFARA STATE GOVT. & ANOR v UNITY BANK & ANOR (2016) LPELR ? 41813 (CA). The said pre-action Notices remain valid in the face of any action commenced by the plaintiff on the matters raised in the said notices. Therefore, Exhibits F04 and F05 were not only issued for the purpose of the already struck out proceedings, it extends to the present suit touching on the same substantive matter. The first issue is therefore resolved in the Cross Respondents? favour.
?
The next question is whether the failure of the 3rd Respondent to serve a pre-action notice on the Cross-Appellant invalidates the entire proceedings brought by the Cross Respondents. Let me say here that, as the Cross

102

Respondents? learned counsel has rightly argued at paragraph 17 of the Cross Respondents Brief of Argument, even if the contention of the learned counsel for the Cross-Appellant to the effect that the 3rd Respondent failed to serve a pre-action notice on the Cross Appellant is upheld, the only reasonable conclusion that will be reached is that the action against the Cross Appellant has become incompetent.

Meanwhile, I am of the considered opinion that the action with respect to the 3rd Respondent is still competent as the 3rd Respondent can proceed against the Minister of Transport and the Court will be bound to determine the said suit. Therefore, as I see it, the only natural consequence of the 3rd Cross-Respondent?s failure to serve the pre-action notice is the claim against the Cross-Appellant is incompetent. Nevertheless, I believe there is no impediment to the exercise of the jurisdiction of the Court in respect of the suit by the 3rd Respondent against the Minister of Transport. Having failed to serve the pre-action notice on the Cross Appellant, it will be taken that the 3rd Respondent does not intend to proceed against the Cross

103

Appellant as a Defendant in the suit. The law as I know it is that no Court can compel a Plaintiff to proceed against any person he does not intend to proceed against. Put simply, a Plaintiff has a right to choose who to sue where he has joint and several demands against more than one person. See AKINYEMI v GOV., OYO STATE [2003] FWLR (PT 140) 1821; CROWN FLOUR MILLS LTD v OLOKUN [2008] 4 NWLR (PT 1077) 254.

In addition, it is abundantly clear that the 1st, 2nd and 4th Respondents had ipso facto served the requisite pre-action notices against the Cross-Appellant, so that, contrary to the misconceived arguments canvassed by the Cross-Appellant?s counsel, the suit remains alive and cannot be struck out on the ground that one of the parties failed to serve on the Cross-Appellant the requisite pre-action notice. As I said earlier, the purpose of pre-action notice is for the defendant to be notified of the impending litigation against it, and my considered view that, in so far as three out of the four Cross-Respondents have served on the Cross-Appellant, the suit is competent. As such, the second issue is resolved against the Cross Appellant.
?
The

104

last issue with respect of the decision of the learned trial judge as per the Cross-Appellant?s claim; however, having declared in the main appeal that drilling rigs are not vessels within the meaning of the Cabotage Act, it follows that the Counter Claim is bound to fail, and the last issue has become academic and is of no practical relevance.
?
In the light of the above, I have no hesitation in reaching the Cross-Appeal fails in its entirety and it is hereby dismissed. There is no order as to costs.

MOHAMMED LAWAL GARBA, J.C.A.: I agree

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree

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Appearances:

Fidelis Oditah, SAN with him, James Okoli and Johnson AgwuFor Appellant(s)

M. I. Igbokwe, SAN with him, A. Nwachukwu, T. Oyeyemi and A. Ogidan for 1st Respondent/Cross Appellant.

O. Ekwoanja with him, Damilu Raji for 2nd Respondent.For Respondent(s)

Appearances

Fidelis Oditah, SAN with him, James Okoli and Johnson AgwuFor Appellant

AND

M. I. Igbokwe, SAN with him, A. Nwachukwu, T. Oyeyemi and A. Ogidan for 1st Respondent/Cross Appellant.

O. Ekwoanja with him, Damilu Raji for 2nd Respondent.For Respondent

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