UMARCO (NIGERIA) PLC v. JOFABRIS AND ASSOCIATES LTD. & ANOR(2003)

UMARCO (NIGERIA) PLC v. JOFABRIS AND ASSOCIATES LTD. & ANOR

(2003)LCN/1432(CA)

In The Court of Appeal of Nigeria

On Thursday, the 19th day of June, 2003

CA/L/240/2000

RATIO

ACTION: CAUSE OF ACTION

“It is now settled law that in order to ascertain the date when the cause of action accrued resort had to be had only to the plaintiff’s statement of claim. See Lasisi Fadare and Ors. v. A.-G., Oyo State (1982) 4 SC 1. In effect, this principle encompassed in Order 27 of Federal High Court (Civil Procedure) Rules, 1976 on demurrer procedure, does not admit the court’s power to act upon any point of law on which the court is satisfied the matter may be disposed of whether partly or in whole at this stage. Here, the appellant in effect conceded all issues of fact contained in the statement of claim that the action against it was statute-barred relying on documents exhibited to the motion paper. This it could not do in view of recent decision of this court in Horizon Fibres (Nig.) Plc. v. MV Baco Liner 1 (2002) 8 NWLR (Pt.769) 466.” PER CHRISTOPHER MITCHELL CHUKWUMA-ENEH J.C.A.

CONTRACT: WHERE BILL OF LADING CONTAINS AGREEMENT OF CONTRACT

“And, although, the bill of lading containing the terms and condition of the contract of affreightment in this matter was also clearly pleaded in paragraph 4 of the statement of claim, still the court below was precluded, indeed forbidden from looking at it or any other facts for that matter not available on the face of the averments in the statement of claim, at that stage, on this issue. Therefore, the appellant’s submission to the contrary was totally misconceived in that without resorting to exhibits M1 and M2 it would be difficult to fix the date the cause of action accrued. See: Horizon Fibres (Nig.) Plc. v. MV Baco Line 1 (2002) 8 NWLR (Pt. 769) 466. On the authorities, there is no way the appellant could have secured the reliefs it sought in the said application.” PER CHRISTOPHER MITCHELL CHUKWUMA-ENEH J.C.A.

JUSTICES

JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria

SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria

CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Court of Appeal of Nigeria

Between

UMARCO (NIG.) PLC – Appellant(s)

AND

JOFABRIS AND ASSOCIATES LTD.

NIGERIA PORTS PLC – Respondent(s)

JAMES OGENYI OGEBE, J.C.A. (Delivering the Leading Judgment):

The 1st respondent sued the appellant and the 2nd respondent in the Federal High Court, Lagos claiming a total sum of N2,541,200.00 (Two million five hundred and forty-one thousand two hundred naira) being special and general damages for breach of contract of carriage of goods covered by bill of lading No. 101.

The 1st respondent filed a statement of claim on the 9th of April, 1997. The appellant did not file a statement of defence but chose to file a motion on the 6th of November, 1997 requesting the trial court to dismiss the suit on the ground that it was statute-barred.

The trial court heard argument and dismissed the motion. It is against that ruling that the appellant has appealed to this court.

The learned counsel of the appellant filed a brief of argument and formulated two issues for determination as follows:

1.Is the 1st respondent (plaintiff) bound by the terms and conditions of the bill of lading contract entered into by the 1st respondent and the appellant’s principals?

2.Whether in view of the provisions of the terms and conditions of the bill of lading contract, this suit is statute-barred?

He also filed a reply brief in reply to the 1st respondent’s brief and a reply brief in respect of the 2nd respondent’s brief.

The 1st respondent filed a brief and adopted the issues formulated by the appellant. The 2nd respondent also filed a brief and formulated one issue for determination as follows:

“Whether learned trial Judge rightly or wrongly found that the 1st respondent’s suit against the appellant was not time barred.”

The facts of this case are relatively simple. The appellant brought some goods by sea to the 1st respondent. The goods were containers of frozen fish. They were discharged to the 2nd respondent on the 11th of October, 1995 from the MVCNBT Europe.

The 1st respondent collected the goods on the 24th of October, 1995 and found that one of the containers was spoilt. It complained both to the appellant and the 2nd respondent about the damage and when nothing was done it brought an action on the 16th of October, 1996 claiming damages as stated earlier in this judgment.

The dispute between the parties is whether or not the time for institution of the action began to run from the 11th of October, 1995 or the 24th of October, 1995.

The trial court held that time began to run from the 25th of October, 1995 and therefore the action which was filed on the 16th of October, 1996 was within the time of the one year allowed by law.

I am of the view that there was only one issue for determination in this appeal and that is the issue formulated by the 2nd respondent which tallies with the appellant’s second issue namely: whether the action in the lower court was statute-barred.

The main argument of the appellant is that the 1st respondent is bound by the terms of contract contained in the bill of lading particularly Clause 17(7) which provides thus:

“with regard to this Clause 17, the discharge of the goods whether into the hands of any customs, port on other authority or in compliance with Clause 17(2) shall always be deemed to be the delivery of the goods to the merchant, in accordance with the Hague rules. The liability of the carrier shall cease upon discharge of the goods notwithstanding any charges, dues or other expenses that may be or become payable.”

The learned counsel submitted that if the trial Judge had adverted his mind to Clause 17(2), (6) and (7) of the bill of lading he would have come to the conclusion that the goods were delivered on the 11th of October and time for suing would begin to run from that date. He also said that it was not for the trial Judge to make a contract for the parties.

He referred to the cases of Abdullahi v. Waje Community Bank (2000) 7 NWLR (Pt. 663) 9 and Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) 492.

The learned counsel for the 1st respondent submitted that the goods were not delivered until the 24th of October, 1995 and therefore the action which was brought on the 6th of October, 1996 was within time.

He said that the provision of the Carriage of Goods by Sea Act, Cap. 44 of the Laws of Federation of Nigeria, 1990 and the rules contained in the schedule thereof make the time for action to run from the date of the delivery of the goods or the date when the goods would have been delivered and not the date of the arrival of the ship carrying the goods.

The learned counsel for the 2nd respondent submitted that the earliest time to compute the 1st respondent’s cause of action was when it had the opportunity to examine the consignment and ascertain the level of damage. This would be after the 24th of October, 1995 when the goods were released to the 1st respondent.

The learned counsel further argued that clause 17 of exhibit M1 the bill of lading envisages actual and assumed delivery. He drew a distinction between the discharge of consignment and delivery of consignment. He said that there must be discharge of consignment from the vessel before there is a subsequent delivery.

It appears to me that there is much confusion in the lower court as to which law was applicable in the matter before it. Both sides did not help matters as they added to the confusion. For example, the appellant told the court that Article 3 rule 6 of the Carriage of Goods by Sea Act, Cap. 44 of the Laws of Federation of Nigeria, 1990 was applicable law in respect of the time of limitation of action. The true position of the law is that the Carriage of Goods by Sea Act by section 2 thereof the rules contained in the schedule have effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in Nigeria to any other port whether in Nigeria or outside Nigeria. The rules therefore do not apply to goods brought to Nigeria from outside as the facts of this case disclose.

In the case of Horizon Fibres Nigeria Plc. v. M. V. Baco Liner 1 (2002) 8 NWLR (Pt. 769) 466, the appellant sued the respondents at the Federal High Court, Lagos claiming damages from a contract of carriage by sea. The 1st to 3rd respondents filed a motion to dismiss the claim on a number of grounds including a ground that it was statute-barred.

The respondents relied on a bill of lading in support of the motion to dismiss the claim.

The trial court dismissed the claim on the ground that it was statute-barred. The appellant appealed to the Court of Appeal which held that in demurrer proceeding, only the plaintiff’s statement of claim can be looked at to determine whether or not the action is statute-barred and not any document outside the statement of claim.

The court was of the view that the bill of lading which was annexed to the motion paper could not be used to hold that the action was statute-barred. The facts of the present case are identical and I have no cause whatsoever to depart from the earlier judgment of this court. I am in fact bound by it.

The 1st respondent’s statement of claim on its face does not disclose that the action was statute-barred and therefore the bill of lading relied on by the appellant in moving the court to hold that the action was statute-bar could not be so used at that stage of the proceedings.

It would have been far neater for the appellant to raise the issue of statute-barred in a statement of defence to afford the court of hearing evidence and assessing all the facts of the case before arriving at a just decision.

For all I have said in this judgment, I am satisfied that the trial court arrived at the correct decision but for the wrong reason. I therefore dismiss the appeal on the ground that there was nothing in the 1st respondent’s statement of claim to establish that the action was statute-barred. I hold that the appellant’s motion to dismiss the action was rightly dismissed. The appellant shall pay costs of N3,000.00 to the 1st respondent and N3,000.00 to the 2nd respondent.

SULEIMAN GALADIMA, J.C.A.: I have the opportunity of reading in draft the lead judgment just read by my learned brother, Ogebe, JCA. The facts and issues formulated in this matter have been carefully set out and resolved in the body of the judgment.

The main issue is ascertaining the date when the cause of action accrued in this matter. It is now settled law that in order to ascertain the date when the cause of action accrued resort had to be had only to the plaintiff’s statement of claim. See Lasisi Fadare and Ors. v. A.-G., Oyo State (1982) 4 SC 1. In effect, this principle encompassed in Order 27 of Federal High Court (Civil Procedure) Rules, 1976 on demurrer procedure, does not admit the court’s power to act upon any point of law on which the court is satisfied the matter may be disposed of whether partly or in whole at this stage. Here, the appellant in effect conceded all issues of fact contained in the statement of claim that the action against it was statute-barred relying on documents exhibited to the motion paper. This it could not do in view of recent decision of this court in Horizon Fibres (Nig.) Plc. v. MV Baco Liner 1 (2002) 8 NWLR (Pt.769) 466.

Since the 1st respondent statement of claim on its face does not disclose that the action was statute-barred, therefore, the bill of lading which was merely annexed to the motion paper and relied on by the appellant in moving the court to hold that the action was statute barred could not be so used at that stage of proceedings.

With this contribution, I too agree that this appeal lacks merit and I abide by the order for costs made in the lead judgment.

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.C.A.: I have read in advance the judgment of my learned brother, Ogebe, JCA, just delivered. I agree with his reasoning and conclusion that the appeal has no merit. It should be dismissed.

The facts and issues in this matter are set out in the body of the lead judgment. The dispute between the parties centered on when time commenced for purposes of limitation of time in the matter.

That is to say, whether from 11/10/95 when the containers of frozen fish were discharged from the ‘MV CNBT Europe’ to the 2nd respondent or on 24/10/95 when actual delivery of the said goods were made to the 1st respondent.

In dealing with the crucial issue of ascertaining the critical date the cause of action accrued in this matter, it is settled law that regard has to be had only to the plaintiff’s statement of claim. It does not admit of equivocation as to the court’s power to act upon any point of law on which the court is satisfied the matter may be disposed of whether partly or in whole. In this respect, as recently as in the case of Lasisi Fadare & Ors. v. A.-G., Oyo State (1982) 4 SC 1, the Supreme Court held in that case as follows:

“… the preliminary point of law can be taken after the receipt of the statement of claim and before any defence , is filed. The party in such a case relies on point of law even if the issue of fact in the statement of claim are conceded. If he fails, an order would be made by the court ordering the filing of a statement of defence and the suit would proceed to trial” as per Nnamani, JSC (of blessed memory).

Furthermore, the foregoing principle is equally encompassed in Order 27 of the Federal High Court (Civil Procedure) Rules, 1976 on demurrer procedure and its provisions are reproduced as follows:

“(1) Where a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendant he may raise this defence by motion that the suit be dismissed without any answer upon the question of fact being required from him.

(2) For purposes of such an application, the defendant shall be taken as admitting the truth of the plaintiff’s allegations, and no evidence respecting matters of fact, and no discussion of question shall be allowed.

(3) The court on hearing the application shall either dismiss the suit or order the defendant to answer the plaintiff’s allegation of facts and shall make such order as to costs as the court seems just.”

The above provisions have been interpreted in a number of cases including Mobil Oil (Nig.) Plc. v. IAL 36 Inc. (2000) 6 NWLR (Pt. 659) 146 per Karibi-Whyte, JSC.

I think in perspective, I should in brief recount the events in the matter in their sequence. The 1st defendant/appellant on being served with the statement of claim but without filing its defence responded immediately by filing an application supported by an affidavit of 6 paragraphs to dismiss the suit in its entirety as statute-barred. Having thus, as it were, demurred, the question of limitation of time took a back stage to await the outcome of the said application. It has to be noted that at page 1 from LL.7-9 of the 2nd paragraph of its brief of argument the appellant admitted it had to adopt the precipate act, after perusing the relevant bill of lading, the statement of claim and all other relevant documents, the appellant was of the opinion that the 1st respondent claim against it is statute-barred.

In effect, the appellant in this matter was saying while conceding all the issues of fact contained in the statement of claim that the claim against it was statute-barred and relied on the bill of lading i.e. exhibit M1 and other documents – including Tally Way Bill – exhibit M2, both documents were exhibited to the said affidavit and clearly outside the facts contained in the statement of claim in this matter, in support. In furtherance thereof, the appellant also deposed to the same effect in paragraphs 3 and 4 of the supporting affidavit to the said application and they are set out as follows:

“3. That Ms. Ejide Sodipo, the counsel handling this matter in chambers told me and I verily believe her:-

That as at the 11th of October, 1995 when the plaintiff’s goods were discharged from the M.V.

CMBT Europe, the 1st defendant was a disclosed agent of the carrier of the plaintiff’s container aforesaid. This fact is also confirmed in paragraph 2 of the plaintiff’s statement of claim dated 9th April, 1997.

1.That the 1st defendant’s principal CMB transport entered into a contract of carriage of goods by sea evidenced by bill of lading No. 101 dated 3rd October, 1995, which is attached hereto and marked exhibit M1.

2.That the contract of carriage of goods by sea evidenced by exhibit M1 between the 1st defendant’s principal CMB transport and the plaintiff was for the carriage of the plaintiff’s container the subject matter of this action from the port of Dakar/Senegal to the port of Apapa/Lagos, Nigeria. That is a port to port shipment.

3.That the plaintiff and the 1st defendant’s principal CMB transport agreed by virtue of the terms and conditions of the contract of carriage of the plaintiff’s goods by sea printed on the bill of lading exhibit M1, that the 1st defendant shall be under no liability whatsoever for loss of or damage to the goods, howsoever occurring if such loss or damage arises prior to loading onto or subsequent to discharge from the vessel.

4.That the plaintiff and the 1st defendant’s principal CMB transport also agreed, by virtue of Clause 4 (The Himalaya Clause) of the terms and conditions of the contract of carriage of the plaintiff’s goods by sea printed on the bill of lading exhibit M1, that the 1st defendant/applicant shall have the benefit of every right, defence, limitation and liberty of whatsoever nature herein contained or otherwise available to the carrier CMB transport as if such provisions were expressly for his benefit, and in entering into this contract (exhibit M1), the carrier to the extent of these provisions does so not only on his behalf but as agent and trustee for the 1st defendant.

5.That apart from the contract of carriage of goods by sea (exhibit M1) entered into between the plaintiff and the 1st defendant’s principal CMB transport, the 1st defendant did not enter into any other contractual agreement with the plaintiff.

6.That the plaintiff and the 1st defendant’s principal CMB transport further agreed by virtue of Clause Sa and Clause 4(2) of the terms and condition of the contract of carriage of the plaintiff’s good by sea printed on the bill of lading exhibit M1, that the liability (if any) of the carrier and the 1st defendant’s for loss or damage to the plaintiff’s goods shall be determined in accordance with any National Law making the Hague Rules compulsorily applicable to the bill of lading or in any other case in accordance with the Hague Rules, Articles I-VIII inclusive.

7.That Ms. Ejide Sodipo, the counsel handling this case in chambers also told me and I verily believe her that:-

a.That the plaintiff’s container, the subject-matter of this action arrived and was discharged into the custody of the Nigerian Ports Plc. at the Apapa Port on the 11th of October, 1994. I attached hereto and marked exhibit ‘M2’ is the tally way bill dated 11/10/95, evidencing the day the container, the subject-matter of this action was discharged from the 1st defendant principal’s vessel M.V CMBT ‘Europe’ at the Apapa Port.

b.That the plaintiff in paragraph 8 of its statement of claim also admitted that the said container was discharged into the custody of the Nigeria Ports Plc. from the 1st defendant principals vessel M.V CMBT ‘Europe’ (the 2nd defendant on the 11th of October, 1995).

c.That the plaintiff did not institute this action until the 16th of October, 1996, more than one year after the cause of action arose.

8.That the time within which to institute this action has lapsed being more than one year.”

The logical aim of the above depositions, no doubt, was to bring before the court below albeit elaborate materials in the nature of exhibits M1 and M2 in the hope that the court below would be persuaded to rely on them to ascertain the date the cause of action accrued and so determine the issue of the period of limitation in the matter

And, although, the bill of lading containing the terms and condition of the contract of affreightment in this matter was also clearly pleaded in paragraph 4 of the statement of claim, still the court below was precluded, indeed forbidden from looking at it or any other facts for that matter not available on the face of the averments in the statement of claim, at that stage, on this issue. Therefore, the appellant’s submission to the contrary was totally misconceived in that without resorting to exhibits M1 and M2 it would be difficult to fix the date the cause of action accrued. See: Horizon Fibres (Nig.) Plc. v. MV Baco Line 1 (2002) 8 NWLR (Pt. 769) 466. On the authorities, there is no way the appellant could have secured the reliefs it sought in the said application.

The appellant’s case is even worsened by its own admission that it had to resort to the bill of lading and other documents collateral to the statement of claim in making the instant application. This would tantamount to looking at prescribed documents as declared in Boothia Maritime Inc. v. Fareast Mercantile Co. Ltd. (2001) 9 NWLR (Pt. 719) 572 per Achike, JSC In that case, also Uwaifo, JSC in the same vein said:

“It is obviously a misconception to resort to demurrer procedure and then seek to rely on facts which are not available on the face of the averments in the statement of claim. The well known principle in regard to the demurrer is that only the facts pleaded in the statement of claim should be considered on the assumption that they are accepted as true but that the defendant upon those facts makes a case to dispose of the plaintiff’s claim in limine as being unsustainable in law. See: Fadare v. A.-G., Oyo State (1982) 4 SC 1; Federal Capital Development Authority v. Naibi (1990) 3 NWLR (Pt.138) 270; Williams v. Williams (1995) 2 NWLR (Pt.375) 1 and Brawal Shipping Ltd. v. F. J. Onwadike Co. Ltd. (2000) 11 NWLR (Pt. 678) 387, (2000) (Pt.-11) 133.”

The lower court, in my view reached a correct decision even though for wrong reasons. In conclusion, the appeal should be dismissed and the matter to proceed before the court below. The appellant is however, obliged to file its answer to the statement of claim.

I endorse the orders in the lead judgment.

Appeal dismissed.

Appearances