WASA DELMAS NIGERIA LIMITED v. A & M MINERALS LIMITED & ORS
(2018)LCN/12121(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of November, 2018
CA/L/115/2005
RATIO
ACTION: WHAT DETERMINES JURISDICTION
“It is settled that it is the claim of the plaintiff that determines the jurisdiction of the Court vide Elelu-Habeeb and Anor. v. A.-G., Federation and Ors. (2012) 13 NWLR (pt.1318) 423, Izenkwe and Ors. v. Nnadozie (1953) 14 WACA 361, Adeyemi v. Opeyori (1976) 9 – 10 SC 51, Western Steel Works v. Iron and Steel Workers Union (1987) 1 NWLR (pt.49) 284, Essi v. Nigeria Ports Plc (2018) 2 NWLR (pt.1604) 361, Opawande v. Oyedokun (supra) cited by the 1st respondent.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
WASA DELMAS NIGERIA LIMITED – Appellant(s)
AND
1. A & M MINERALS LIMITED
2. OJE’S & CO. (NIG) LIMITED
3. BUREAU VERITAS NIGERIA LIMITED – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the decision of the High Court of Justice of Lagos State (the Court below) by which it dismissed preliminary objection to its jurisdiction to entertain an action based on loss of goods comprising (tantalite ores-minerals) in the warehouse of the appellant at Apapa Port, Lagos.
The basic facts behind the dispute are that goods (tantalite and columbite ores) warehoused in appellant’s warehouse to be shipped to Antwerp in Belgium per bill of ladings were allegedly lost or stolen from the warehouse of the appellant (3rd defendant at the Court below) at Apapa Port, Lagos, where the said goods belonging to the 1st respondent (the plaintiff at the Court below) were warehoused.
The 1st respondent sued the appellant and the 2nd – 3rd respondents claiming damages in negligence for the alleged loss of the goods. The appellant filed and argued notice of preliminary objection that the action sounded in admiralty outside the jurisdiction of the Court below but within the exclusive admiralty jurisdiction of the Federal High Court. The Court below dismissed the preliminary objection and assumed jurisdiction in the case.
The appellant was aggrieved and filed a notice of appeal with four (4) grounds of appeal. The appellant argued in an amended brief of argument filed on 10.10.11, but deemed as duly filed on 13.04.18, that since the goods were to be shipped under bill of ladings and were alleged to have been lost or stolen in a warehouse at Apapa port within the control and management of the Nigeria Ports Authority the action was in admiralty, within the exclusive jurisdiction of the Federal High, not the Court below citing in aid Sections 251(1)(g) and (3) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) Section 2(7)(1)(g) of the Federal High Court (Amendment) Act No. 60 of 1991 (in pari materia with Section 251(1)(g) of the 1999 Constitution), Section 1(1)(g), 1(3), (3)(f), 3 and 19 of the Admiralty Jurisdiction Act No.59 of 1991 (AJA), Section 30(2) of the Nigeria Ports Authority Act No.38 of 1999, Article 1 of the Schedule to the Carriage of Goods by Sea Act Cap 44 Laws of the Federation, Black?s Law Dictionary (sixth edition) 168, Pacers Multi-Dynamic v. M.V. ‘Dancing Sisters’ (2000) 3 NWLR (pt.648) 241 at 257-259 and Section 375(1) of the Merchant Shipping Act Cap 224 Laws of the Federation.
The appellant contended that the Court below should have pronounced on the time bar of the action and having not done so, being an admiralty matter, and not having commenced it within one year of the date the action accrued, the action should be held to the statute barred citing in aid Section 2 of the Carriage of Goods by Sea Act, Article III Rule 6 of the Schedule to the Carriage of Goods by Sea Act, G and C Lines v. Olaleye (2000) 10 NWLR (pt. 676) 613 at 633, 634, 636, Leventis Technical Ltd. v. Petrojessica Enterprises Ltd. (1999) 6 NWLR (pt.605) 45 at 56 and 60.
The appellant contended that tantaline and columbium being minerals known as columbite and tantalite ores, respectively, the action should have been filed at the Federal High Court which has the exclusive jurisdiction to entertain matters relating to mines and minerals (including oil fields, oil mining, geological surveys and natural gas) citing in aid Section 251(1)(n) of the 1999 Constitution, Section 7(1)(p) of Act No.60 of 1991, Sections 93 and 259 of the Minerals and Mining Act No. 34 of 1999 and Sections 16, 87, 124, 125 thereof making it a criminal offence triable at the Federal High Court for persons dealing in minerals without licence read with the case of Mpidi Barry v. Obi A. Eric (1998) 8 NWLR (pt. 562) 404 at 422-423 and Chambers 20th Century Dictionary 272 and 996 as well as Section 7(1)(p) of the Act No.60 of 1991 on the definition of “pertain” as to “belong to, relate connected with or tied to.”
It is based on the submissions (supra) that the appellant urged that the appeal should be allowed and the decision of the Court below set aside and the action struck out for want of jurisdiction of the Court below.
Only the 1st respondent filed a brief of argument in which it was argued that the claim of the plaintiff determines the jurisdiction of the Court and that in the present case the claim is in the tort of negligence based on the loss or theft of goods in a warehouse on land, not on board a ship or vessel, making it not a claim in admiralty, nor a claim relating to minerals thus vesting the Court below with the jurisdiction to entertain the action citing in aid the cases of Opawande v. Oyedokun (1992) 6 NWLR (pt. 248) 512, Donoghue v. Stevenson (1932) A.C. 562, Section 2(2) of the Admiralty Jurisdiction Act 1991, G and C Lines and Ors. v. Hengrace Nig. Ltd, (2001) 7 NWLR (pt.711) 51 at 61, Section 272(1) of the 1999 Constitution and the dropping of the phrase ‘relating to’ or ‘pertaining’ from Section 251(1) of the 1999 Constitution which overrides Section 7(1)(p) of Act No.60 of 1991 construed in Barry v. Obi (supra). Consequently, the 1st respondent contended that the Court below possesses the requisite jurisdiction to be properly seised of the case; upon which the 1st respondent advocated for the dismissal of the appeal.
There is no gainsaying that the Court below is a superior Court of record. Certain parameters are taken into account in approaching the issue of the jurisdiction of a Court vide the Supreme Court case of African Newspapers (Nig.) Ltd. v. F.R.N. (1985) 2 NWLR (pt.6) 137 at 159-160 thus:
“The quarrel over the jurisdiction of Court is by no means new but these quarrels have left certain significant beacon lights to guide the Courts when dealing with jurisdiction or the lack of it:-
1. Judges ought not to encroach or enlarge their jurisdiction because by so doing the Courts will be usurping the functions of the Legislature – per Holt C.J. in Ashby v. White (1703) Lord Raym 938.
2. Nothing shall be intended to be out of the jurisdiction of the Superior Court, but that which specifically appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged: Peacock v. Bell and Kendall (1667)1 Sound 74.
3. Although the Courts have great powers yet these powers are not unlimited. They are bound by some lines of demarcation – Abbott, C.J. The King v. Justices of Devon (1819)1 Chit Rep. 37. Courts are creatures of Statutes and the jurisdiction of each Court is therefore confined, limited and circumscribed by the Statute creating it.
4. The Court is not hungry after jurisdiction- Sir Williams Scott- The Two Friend (1799). I.C. Rob. Ad Rep. 280.
5. Judges have a duty to expound the jurisdiction of the Court but it is not part of their duty to expand it – Kekewich J. in In re Montagu (1897) LR.1 C.D. (1897), p.693.
6. A Court cannot give itself jurisdiction by misconstruing a Statute – Pollock, B. Queen v. County Court of Lincolnshire and Dixon (1897 L.J. (N.S.)57 Q.B.D. 137).”
Pages 2 – 7 of record of appeal (the record) contain the statement of claim. It is clear from the statement of claim in pages 2 – 7 of the record that the goods were allegedly lost or stolen in a warehouse on land at Apapa port area in Lagos, not on board a ship whether stationary or in the course of a voyage on water.
Paragraph 32 of the statement of claim averred the reliefs sought thus :
“Whereof the plaintiff claims jointly and severally against the Defendants for this sum of N10,387,280.40 (Ten Million, Three Hundred and Eighty-Seven Thousand, Two Hundred and Eighty Naira, Forty Kobo) being special and General Damage suffered by the Plaintiffs as a result of the negligence of the Defendants which resulted in the theft/loss of the Plaintiff’s consignment of Tantalite Ores weighing 1,485kgs prior to shipment to Antwerp, Belgium in the 3rd Defendant;s Warehouse at Apapa Port, Lagos on or about the 16th August, 2001.
The Plaintiff also claims interest on the said sum of N10,387,280.40 (Ten Million, Three Hundred and Eighty-Seven Thousand, Two Hundred and Eighty Naira, Forty Kobo) at the rate of 32% per annum from the 7/10/2002 until judgment is given.
SPECIAL DAMAGES
1. The cost of the 1,485 kgs (1146, 47 lbs) of Tantalite at U$55.0 per Ib = US$63,165.87
2. US$63,165.87 x N140.00 (Exchange rate of the Dollar) =N8,843,222.00
3. The surveyor’s fee of N.V. Beechman De Von of US$1,280.53 at the Exchange rate of N140.00 to the Dollar = N179,274.20
4. The surveyor’s fees of J.R. Harris & Associate of US$6,177.03 at the
Exchange rate of N140.00 to the Dollar = N864,784.20
General Damages for inconveniences and loss of goodwill = N500,000.00
Total = N10,387,280.40
Interest on the said sum of N10,387,280.40 at the rate of 32% (percent per annum from the 7/10/2002 until judgment is given in this suit.
It is settled that it is the claim of the plaintiff that determines the jurisdiction of the Court vide Elelu-Habeeb and Anor. v. A.-G., Federation and Ors. (2012) 13 NWLR (pt.1318) 423, Izenkwe and Ors. v. Nnadozie (1953) 14 WACA 361, Adeyemi v. Opeyori (1976) 9 – 10 SC 51, Western Steel Works v. Iron and Steel Workers Union (1987) 1 NWLR (pt.49) 284, Essi v. Nigeria Ports Plc (2018) 2 NWLR (pt.1604) 361, Opawande v. Oyedokun (supra) cited by the 1st respondent.
The relief claimed (supra) is with respect to the loss or theft of goods ware-housed in the appellant’s warehouse at Apapa Port, Lagos. The Supreme Court held in the case of Pacers Multi-Dynamics Ltd. v. The M.V. ‘Dancing Sister’ and Anor. (2012) 4 NWLR (pt.1289) 169 at 194 and 206 that damage or loss of goods at the high seas or in a vessel and damage or loss during discharge operations are completely different; that the admiralty jurisdiction of the Federal High Court cannot be invoked once the goods on board a ship have been discharged on the harbour or delivered to the point of destination of the cargo; that for the admiralty jurisdiction to be properly invoked the goods or cargo must remain in the vessel following the cases of Brawal Shipping (Nig.) Ltd. v. Aphrodite (Nig.) Ltd. (2004) 9 NWLR (pt.879) 462 and N.M.S. Ltd. v. J.P. Ent. Ltd. (2006) 5 NWLR (pt.972) 127.
The Supreme Court concluded in that case (Pacers Multi-Dynamics etc.(supra) in page 206 thereof) that the admiralty jurisdiction of the Federal High Court in respect of damages for loss or damage of goods which have been discharged from the ship even if it is a consignee as it described rather than a notifying party, the jurisdiction of the Federal High Court is lost and that only the High Court of a State would have jurisdiction to entertain a claim of damages for the tort of negligence in such circumstances.
The Supreme Court reinforced its decision in Pacers Multi-Dynamics Ltd. (supra) in the fairly recent case of Ugo-Ngadi v. F.R.N. (2018) 8 NWLR (pt.1620) 29 at 51 and 60 following the cases of Texaco Overseas Petroleum Co. Ltd. v. Pedmar Nig. Ltd. (2002) 13 NWLR (pt.785) 526, PetroJessica Ent. Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (pt.244) 675, Aluminum Manufacturing Co. Ltd. v. Nigerian Ports Authority (1987) 1 NWLR (pt.51) 475 to the effect that the mere fact that goods at one stage in their movement had a voyage on a ship does not give rise to admiralty jurisdiction and that once a cargo is not in a vessel carriage by sea and admiralty jurisdiction of the Federal High Court ends and a dispute (such as loss or theft of goods on land as alleged in this case) is within the omnibus or general jurisdiction of the High Court of a State under Section 272(1) of the 1999 Constitution, not the special admiralty jurisdiction of the Federal High Court. See also the Supreme Court case of Conoil v. Vitol S.A. (2018) 9 NWLR (pt.1625) 463.
It was also held by the Supreme Court in the case of Aluminum Manufacturing Co. (Nig.) Ltd. v. N.P.A. (1987) 1 N.S.C.C. 224 that a claim founded on negligence and the simple contract of bailment was devoid of any maritime colouring and falls within the jurisdiction of the High Court of a State in which the action arose.
I should add that the mere fact that a ship is involved in a simple contract does not automatically make that simple contract a subject of jurisdiction in admiralty matters vide TSKJ Nigeria Ltd. v. Otochem Nigeria Ltd. (2018) 11 NWLR (pt.1630) 330.
Accordingly, the Court below was right in holding that the claim of negligence before it was outside the admiralty jurisdiction of the Federal High Court but within the general jurisdiction of the Court below. Not being an admiralty matter the limitation period for admiralty claims pressed by the appellant in its submissions (supra) is unavailing in this case and is hereby respectfully rejected.
The Court below held in its ruling in page 44 of the record that the claim is founded on negligence, not on minerals in themselves, and that the fact that the goods in question are minerals should not be mixed up with the fact that the action is predicated on the tort of negligence. I agree. The gamut of the statement of claim in pages 2 – 7 of the record is in substance built on the tort of negligence which is within the general jurisdiction of the Court below under Section 272(1) of the 1999 Constitution as it is the nature of the claim that determines the jurisdiction of the Court.
In other words, it is not a dispute on minerals but on the loss of the goods which happened to be minerals and is on that basis beyond the jurisdiction of the Federal High Court but within the jurisdiction of the Court below
In conclusion, I see no substance in the appeal and hereby dismiss it and affirm the decision of the Court below (Oyefeso, J.) and remit the case to the same Court for speedy adjudication on account of the age of the case. The appellant shall pay N200,000 costs to the 1st respondent.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother JOSEPH SHAGBAOR IKYEGH, JCA just delivered with which I agree and adopt as mine. I have nothing more to add.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The crux of the disceptation in this appeal is the jurisdiction of the High Court of Lagos State to entertain the 1st Respondent’s action which was a claim sounding in negligence for the loss of goods stored in the Appellant’s warehouse prior to the shipment of the goods to Antwerp, Belgium.
In considering whether a Court has jurisdiction to entertain a matter, it has to be borne in mind that jurisdiction of a Court is not assumed, but must be based on the provisions of a statute. The jurisdiction of the Court does not derive from the sky or to put it in the Latinism, in nubibus. It is statutory. See IKECHUKWU vs. FEDERAL REPUBLIC OF NIGERIA (2015) LPELR (24445)1 at 16. The jurisdiction of a Court is not something you employ a searchlight to discover, it must be plain for all to see: OBI vs. INEC (2007)11 NWLR (PT. 1046) 565 at 669.
The Courts duty when its jurisdiction to entertain a matter is put in issue is to expound its jurisdiction but not to expand it. See TUKUR vs. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 at 549, EGBUE vs. ARAKA (2003) 9 MJSC 17 at 35 and MUDIAGA-ERHUEH vs. INEC (2003)7 WRN 95 at 112- 113.
Now, the concept of jurisdiction of a Court can mean two things: (i) the abstract right of a Court to exercise its powers in causes of a certain class; or (ii) the right of a Court to exercise its powers over a particular subject matter or res in dispute. In the broader sense of the right of a Court to exercise its powers, jurisdiction implies the legal authority or legal capacity to adjudicate at all. It has not been argued that the lower Court, the High Court of Lagos State, does not have the legal capacity to adjudicate. It is therefore the narrower sense of the concept of jurisdiction, id est, the exercise of the Court’s power over the particular subject matter or the res in the case that is in contest.
The rule of jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior Court except that which specially appears to be so. See ANAKWENZE vs. ANEKE (1985) 16 NSCC (PT. 2) 798 at 803 or (1985) 1 NWLR (PT. 4) 771 and MOBIL PRODUCING UNLIMITED vs. LASEPA (2003) 1 MJSC 112 at 127B- C. It is for this reason that every superior Court of record guards its jurisdiction jealously and before a Court declines jurisdiction, must be patently clear that the Court indeed has no jurisdiction. See NWOSU vs. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT.135) 688 at 715 and A-G FEDERATION vs. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PT 618) 187 at 223.
The Appellant’s contention that the 1st Respondent’s claim was an admiralty matter is specious as the 1st Respondent’s goods had not been put aboard any vessel for carriage of the goods by sea before the loss of the said goods as a result of theft at the Appellant’s warehouse. See PACERS MULTI-DYNAMICS LTD vs. M. V. ‘DANCING SISTERS’ (2012) 4 NWLR (PT. 1289) 169 at 194. Consequently the lower Court rightly expounded its jurisdiction to entertain the subject matter or res of the 1st Respondent’s action since it is imbued with the requisite jurisdiction by the stipulations of Section 272 (1) of the 1999 Constitution.
It is for the foregoing reason and the more elaborate reasoning and conclusion in the lead judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA, which I was privileged to read in draft, that I equally agree that this appeal is devoid of merit. I therefore join in dismissing the appeal. I abide by the consequential orders made in the lead judgment, inclusive of the order as to costs.
Appearances:
Mr. E. YorohFor Appellant(s)
Mr. G.A. Okagua for the 2nd Respondent holds the brief of Dr. P. Oguno.
The 1st and 3rd Respondents were served hearing notice but were unrepresented.For Respondent(s)
