ZENON PETROLEUM & GAS LIMITED v. MV. “DELMAR” & ORS
(2016)LCN/8263(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2016
CA/L/295/2011
RATIO
APPEAL: WHETHER AN APPELLANT SHOULD OBTAIN THE LEAVE OF THE FEDERAL HIGH COURT IF HE WANTED TO APPEAL AS AN INTERESTED PARTY
If the Appellant had wanted to appeal as in interested party, he should have obtained the leave of the Federal High Court or this Court. No such leave was obtained. In the case of Contract Resource Nigeria Ltd & Anor Vs. UBA PLC (2011) LPELR-8137 (SC), the Supreme Court per Mukhtar JSC (as he then was) observed: “The law requires that a party who was not a party in the lower Courts and seeks to appeal against a decision, of which he did not take part in the proceedings, has to seek and obtain leave to be a party in an appellate Court. In the instant case, Contract Resource Nigeria Ltd did not obtain such leave, and so he lacks locus to be an appellant in this Court. In the circumstance that leave was not obtained the appeal becomes incompetent. See Akande v. General Electric Ltd. 1979 3-4 SC. 115 and Ikweki v. Ebele 2005 11 NWLR (Pt. 936) 396.” Rhodes-Vivour JSC in the above case emphasized that such a person would obtain leave if and only if he is able to satisfy the Court that he is an interested party; and that an applicant filing an appeal without satisfying the pre condition is merely wasting his time. See also Societe General Bank Nigeria Ltd v. Afekoro (1999) 11 NWLR (Pt. 628) 521. per. CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
ZENON PETROLEUM & GAS LTD.
(CAVEATOR/INTERESTED PERSON) – Appellant(s)
AND
1. MV. “DELMAR”
2.OWNERS OF THE MV “DELMAR MAJURO”
3.M/T “ANE (EX MT LESTE”)
4. TRILIUM NAVIGATION S.A. PANAMA
(OWNERS OF THE MT ANE (EX MT LESTE) – Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Deliv ering the Leading Judgment): This is an appeal against the Ruling of Lambo Akanbi J. of the Federal High Court, Lagos Judicial Division delivered on the 14th day of July 2010 striking out the suit of the 3rd and 4th Respondents for want of jurisdiction pursuant to the application of the 1st and 2nd Respondents and discharging the bank guarantee/security provided by the 1st and 2nd Respondents in favour of the Appellant, being the precondition upon which the release of the 1st Respondent from judicial arrest was predicated.
The facts and circumstances leading to the case as deduced from the Record of appeal may be summarized thus By a Statement of Claim dated 29/10/07, the 3rd & 4th Respondents herein as plaintiffs commenced on Admiralty action at the Federal High Court, Lagos against the 1st and 2nd Respondents herein as Defendants claiming the sum of USS 7,500,000.00 (seven Million, Five Hundred Thousand United States Dollars), being damages for alleged collision damage done by the 1st Respondent to the 3rd Respondent during maneuvering operations of the Commodore pool, Lagos on 25/10/07. At the time
of the alleged collision, the 3rd Respondent was under the custody of the Admiralty Marshal of the Federal High Court pursuant to an order for her arrest dated 22/11/06 in another unrelated matter.
Simultaneously with the issuance of the writ, the 3rd & 4th Respondents applied for and obtained an ex-parte order arresting and detaining the 1st Respondent vessel to secure their claim. The 2nd Respondent, although not admitting liability but desirous of having its vessel, (the 1st Respondent herein) released from arrest furnished security by way of a Bank Guarantee to secure the 3rd & 4th Respondent’s claim, consequent upon which the Respondent vessel was released by the lower Court.
On 7/12/2007, the Appellant filed a Motion on Notice at the Court below for an order directing the 1st and 2nd Respondents (herein) to provide security for the claims of the Appellant against the 3rd and 4th Respondents in suit No. FHC/L,/CS/245/2006 Zenon Petroleum and Gas Limited V. M/T Leste and owners of M/T Leste (which the Appellant instituted against the 3rd and 4th Respondents). On 2/2/09, the Court below delivered its Ruling and?granted the Appellant’s Motion on Notice.
making it a sharer in the bank guarantee provided by the 1st and 2nd Respondents in favour of the 3rd and 4th Respondents. Being dissatisfied with the Ruling of the Court below, the 1st and 2nd Respondents on 11/2/2009 filed a Notice of Appeal at the Registry of the Court below against the 3rd, 4th Respondents and the Appellant which culminated in Appeal No: CA/L/262/2010. While that Appeal was pending before this Honourable Court, the 1st and 2nd Respondents went back to the Court below and filed a Motion on Notice on 21/1/2010, served same on the 3rd and 4th Respondents. The Appellant was not informed and had no knowledge of the proceedings of the Court of 4/3/2010 leading to the ruling of 14/7/2010 in which the lower Court struck out suit No: FHC/L/CS/994/2007 for want of jurisdiction: discharged all the orders made in the suit, including the arrest of the 3rd Respondent and bank guarantee procured by the 1st and 2nd Respondents in favour of the Appellant and the 3rd and 4th Respondents.
Dissatisfied with the Ruling, the Appellant appealed against it by Notice of Appeal containing two grounds of appeal which was subsequently with the leave of the Court
amended to include six additional grounds of appeal. The Appellant’s grounds of appeal without their particulars read as follows:
“GROUND 1
The learned trial judge erred in law when on 14/7/2010, his lordship struck out the suit of the 3rd and 4th Respondents for want of jurisdiction pursuant to the application of the 1st and 2nd despondent dated 20/1/2010 and discharged the First Bank of Nigeria Plc Bank guarantee,/security provided by the 1st and 2nd Respondents in favour of the Appellant to secure the Appellants claim in suit No: FHC/L/CS/245/05, when the Appellant was not given a hearing and/or fair hearing in respect of the said application as provided in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
GROUND 2
The learned trial judge erred in law when on 14/7/2010, his lordship struck out the suit of the 3rd and 4th Respondents for want of jurisdiction pursuant to the application of the 1st and 2nd respondents and also discharged the First Bank of Nigeria Plc Bank guarantee/security provided by the 1st and 2nd Respondents in favour of the Appellant pursuant to the order of the Court
below of 2/2/09 thereby preempting the appeal filed by the 1st and 2nd respondents at the Court of Appeal against the said Ruling which appeal is awaiting hearing and determination by the Court of Appeal.
GROUND 3
The learned trial judge erred in law when on 14/7/10, his lordship struck out the suit of the 3rd and 4th respondents for want of jurisdiction when the said ruling/decision was delivered on 4/7/2010, more than ninety (90) days after the address of counsel on 4/7/10 contrary to Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
GROUND 4
The learned trial judge erred in law when his lordship predicated his ruling/decision of 14/7/10 on the 1st and 2nd Respondents’ motion on Notice dated 20/1/10 and Written Address dated 20/1/10, when the said written address was not signed by a person known to law and/or a legal practitioner contrary to the provisions of Orders 13 Rule 4 and 26(3) of the Federal High Court (Civil Procedure) Rules, 2009 , Sections 2 & 24 of the Legal Practitioners Act, 1990 and the decision of the Supreme Court in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521,
(2007) 3 S.C. (Pt. II) 55 at 62- 63.
GROUND 5
The learned trial judge erred in law when on 14/7/10, his lordship struck out the suit of the 3rd and 4th Respondents for want of locus standi by the 3rd and 4th Respondent when the said 3rd and 4th Respondents had locus standi to institute the suit.
GROUND 6
The learned trial judge misdirected himself and came to a wrong conclusion when his lordship held as follows namely:
“much as I concede that what determines the locus standi of the Plaintiff to sue is the Plaintiffs’ statement of claim, both learned counsel have further provided documentary evidence and the materials on oath towards the same issue. I may consider such matters raised therein by the parties as may be seen relevant for the determination of this 1st issue”.
GROUND 7
The learned trial judge erred in law when on 14/7/10, his lordship struck out the suit of the 3rd and 4th Respondents for want of jurisdiction when his lordship held that the 3rd and 4th respondents did not seek the leave of the Court below to issue the writ of summons and statement of claim and other originating processes on the 2nd
Respondent outside the jurisdiction and mark the said writ of summons as a concurrent writ of summons when the said suit was an admiralty action in rem?and the 2nd Respondent’s address for service was within the jurisdiction and the 2nd respondent was also served within jurisdiction.
GROUND 8
The learned trial judge misdirected himself and came to a wrong conclusion when his lordship held as follows namely:
“The Plaintiffs’ argument would have been on a strong wicket had the action been founded only in an action in rem. This is however not the case as the action is not only against a ship or vessel or other property, it is also an action in personam against the owners of the vessel resident outside the jurisdiction of the Court. It is thus settled that where the Rules provided that before a writ of Summons to be served outside jurisdiction is issued, leave of the Court must be obtained and if no such leave is obtained prior to the taking out of the writ, the writ is vitiated and would be declared null and void. This is because prior leave is a condition precedent to the institution of the action. Much as the issuance of the Writ on the 1st
Defendant – a vessel would not require leave to issue, the same cannot be said against the 2nd Defendant – owners of the 1st Defendant in action in personam.”?
Out of the eight grounds of appeal, the Appellant formulated six issues as follows:
“1. Whether the non-service of the 1st and 2nd respondents motion on Notice dated 20/l/2010 but filed on 21/1/2010 on the Appellant and non-issuance and service of hearing notice on the Appellant for the hearing of the said application did not amount to a denial of fair hearing to the Appellant and a flagrant breach of the Appellants constitutional right of fair hearing as entrenched in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and led to a miscarriage of justice? (distilled from ground 1 of the Amended Notice of Appeal).
2. Whether the filing, hearing and determination of the 1st and 2nd Respondents’ motion on Notice dated 20/1/2010 but filed on 21/1/2010 by the Court below when the 1st?and 2nd Respondents’ Appeal No: CA/L,/262M/2010 was pending at this Honourable Court does not pre-empt the decision of this Honourable Court in Appeal No: CA/L/262M/2010,
rendering any decision of this Honourable Court on the said appeal nugatory and constitute an abuse of Court process? (distilled from ground 2 of the Amended Notice of Appeal).
3. Whether the ruling/decision of the Court below is null and void in view of the provisions of Section 294 (1) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) ? (distilled from ground 3 of the Amended Notice of Appeal).
4. Whether the 3rd and 2nd Respondents motion on Notice dated 20/1/2010 but filed on 21/1/2010 was supported by a written address in the eyes of the law and whether the said written address was signed by a Legal Practitioner? (distilled from ground 4 of the Amended Notice of Appeal).
5. Whether the 3rd and 4th Respondents had locus standi to institute this Suit No: FHC/L/C5/994/2007 at the Court below? (distilled from grounds 5 and 6 of the Amended Notice of Appeal).
6. Whether the 3rd and 4th Respondents required prior leave of the Court below to issue and serve the writ of summons in an admiralty action in rem?on the 1st and 2nd Respondents whose address for service as endorsed on the writ of summons
were within jurisdiction and who were actually served within jurisdiction and whether the writ of summons should have been marked as concurrent writ of summons in line with the Sheriffs and Civil Process Act? (distilled from grounds 7 and 8 of the Amended Notice of Appeal)”
The 1st and 2nd Respondents had on 18/10/13 filed a Notice of Preliminary Objection contending that this Court lacked the jurisdiction to entertain the appeal on the grounds that:
“a. The Appellant lacked the locus standi to appeal against the judgment of the lower Court as the Appellant was not a party to the proceedings at the lower Court and did not have a claim in the matter. Consequently, the Appellant cannot claim to be aggrieved against a decision that was not made against it;
b. The Appellant did not suffer any miscarriage of justice from the decision of the Court striking out the matter;
c. The Appeal is incompetent;
d. The Appellant in the present circumstances can at best be described as a meddlesome interloper whose action should be condemned and the appeal struck out accordingly; and.
?(e) In any event, the Appeal constitutes an abuse of the
process of the Court and should accordingly be dismissed.
ARGUMENTS ON THE PRELIMINARY OBJECTION:
1ST AND 2ND RESPONDENTS
Learned counsel for the 1st and 2nd Respondents relying on Section 243 of the 1999 Constitution submitted that only a party aggrieved by a decision of a Court or who suffers some form of injustice as a result of the decision is a?proper party to appeal against such decision. Counsel submitted that the Appellant was neither a Plaintiff nor Defendant before the lower Court and cannot therefore be a party aggrieved. He argued that all they did was to file a caveat against the release of the 1st Respondent vessel. Counsel further submitted that an application was brought by the 1st & 2nd Respondents to strike out the suit filed by the 3rd & 4th Respondents for lack of jurisdiction; that it is the 3rd & 4th Respondents who are the aggrieved parties who are competent to file an appeal against the decision of the Court and not the present appellants. Counsel submitted that an examination of the grounds of appeal in the Notice of Appeal would reveal that the Appellant failed to disclose any injustice which it has suffered on
account?of the striking out of the suit filed by the 3rd & 4th Respondents. Counsel cited the cases of OKESADE v. OGUNKAYODE (1994) 1 NWLR (PT.318) 26 C.A. 37 and ANIEKAN v. ANIEKAN (1999) 12 NWLR (PT. 631) 491 @ 503.
Counsel submitted that the Appellant lacked the locus standi to institute the Appeal. Relying on the cases of Oyewumi v. Osunbade (2001) NWLR (Pt. 82) 1919: and Elendu v.Ekwoaba (1995) 3 NWLR (Pt. 386) 704. He submitted that the Appellant having failed to show any locus standi to prosecute the instant Appeal automatically robs the Court of the requisite jurisdiction to entertain the matter and also rendered the appeal incompetent. He urged the Court to uphold the preliminary objection and to strike out the appeal.
APPELLANTS ARGUMENTS
The Appellant responded to the 1st and 2nd Respondents preliminary objection in their Reply brief at pages 1 – 5. Learned counsel for the Appellant therein submitted that the Appellant had locus standi in the?matter by virtue of the caveat he filed as a caveator/interested person and the Ruling of the Court of 2/2/09, varying the order of release of the 1st and 2nd Respondent so that any
security provided by the 1st and 2nd Respondents for the release of the 1st Respondent from judicial arrest by the 3rd and 4th Respondents, be also applied in securing the claims of the Appellant against the 3rd and 4th Respondents in suit No. FHC/L/CS/245/2005. Learned counsel further submitted that the Appellant was not offered an opportunity or given a fair hearing on the issues of jurisdiction raised by the 1st and 2nd Respondents at the Court below when the Court below heard arguments on the said application without service of the motion and the hearing notice on the Appellant in view of its interest in the suit predicated in the Ruling of 2/2/09. Learned counsel submitted that the issue at this stage was not whether or not the Court below had jurisdiction to hear and determine the 3rd and 4th Respondents’ suit but whether in hearing and determining the 1st and 2nd Respondents’ Preliminary Objection, the Appellant had locus standi and ought to have been served all the Court processes and hearing notices. Counsel argued that the Appellant had locus standi because its interest in the bank guarantee provided by the 1st and 2nd Respondents was terminated and
lost. Further, the 1st Respondent was no longer within jurisdiction having been released by the Court while the Appellant’s caveat was pending in Court, the Appellant could not have the opportunity to exercise its right to arrest the 1st Respondent pursuant to Section 2(3) (a) and (b) of the Admiralty Jurisdiction Act (AJA), 1991 Cap. A5 Laws of the Federation of Nigeria, 2004 . Counsel submitted that if the 1st Respondent had not been released from arrest, the Appellant would have made a claim for damage done by a ship by collision and/or a claim for damage received by a ship in line with Section 2(3) (a) and (b) of AJA . Counsel further submitted that the service of Hearing Notice for the Ruling of 14/7/10, (pages 340- 346 of the Record) on the Appellant’s counsel by the Court below is a demonstration that the Court below was indeed aware or ought to have been aware that the Appellant was a?caveator/interested party in the suit. Counsel submitted that the Appellant was a Caveator/interested person or an intervener within the meaning of Order 1 Rule 3 of the Admiralty Jurisdiction Procedure Rules, (‘AJPR’) 1993 at the time it filed this Appeal. Counsel further
submitted, relying on In Re Ogunniowola (19961 2 NWLR (Pt.428) 90 at 100 Paras D-E that an interested person within the contemplation of the law and the AJPR, 1993 includes a person affected or likely to be affected or aggrieved by the decision of a Court. Counsel submitted that an “intervener” was defined in Black’s Law Dictionary 8th Edition page 840 as one who voluntarily enters a pending law suit because of a personal stake. Again, referring to Blacks Law Dictionary, Counsel submitted that the act of ‘intervention’ was defined as the entry into a law suit by a third party who, despite not being a named party to the action has a personal stake in the outcome. Counsel submitted that such an “intervener” may sometimes join the plaintiff in claiming what is sought in the suit, or he may sometimes join the defendant in resisting what is sought ?in?the suit, or he may sometimes take a position adverse to that of the plaintiff and the defendant. In other words, the fact that a person is not a party to the suit does not ipso facto preclude him from bringing a claim as an intervener or participating and benefiting from the outcome of the suit. Counsel submitted that in
the present appeal, the Appellant could have arrested the 1st Respondent pursuant to Section 2(2) and (3) of the AJA, if the 1st Respondent was not released from arrest/detention by the Court below. To that extent, the Appellant was an interested person in the suit within the meaning of Order 1 Rule 3 of the Admiralty Jurisdiction Procedure Rule 1993.?He referred to Section 2(2),?(3) and 5(2)of AJA.
Counsel further submitted that the 1st and 2nd Respondents having raised the issue of caveat in ground 4 of their grounds of Appeal in Appeal No: CA/L/262/2010 which is yet to be heard and determined by this Honourable Court, they are estopped from raising and arguing the same issue in this appeal as it constitutes an abuse of Court process.
Learned counsel submitted that the fact that the 3rd and 4th Respondents are yet to appeal against the Ruling of the Court below does not in any way prevent the Appellant from appealing against the said ruling because the interest of the Appellant and that of the 3rd and 4th Respondents are not analogous but different. Counsel argued that the issue that arises from this preliminary objection is whether the Appellant as a Caveator/Interested
Party to the suit at the Court below had a right to appeal against the Rulingof the Court striking out the suit when the processes leading to the hearing and determination of the said issue of jurisdiction was not served on it? Counsel urged the Court to over rule the preliminary objection because the Appellant had locus standi to bring this appeal as the Appellant was not given a fair hearing in that no process or hearing notice leading to the hearing of the 1st and 2nd Respondents’ preliminary objection at the Court below was served on it. Counsel submitted that the cases of Okesade V. Ogunkayode (supra) and Aniekait v. Aniekan (supra) cited and relied upon by the 1st and 2nd Respondents are not opposite. He cited and relied on the case of Godwin Josiah v. The State (19850 1 S.C. 406 @ 446,/447: (1985) 1 N.W.L.R (Pt.1) 125 @ 141 6-H.
RESOLUTION OF PRELIMINARY OBJECTION:
Appeal No CA/L/262/10 was heard together with this appeal. Half way through this appeal,?I realized that it was better to deal with Appeal No CA/L/262/10 first as its outcome will determine the fate?of this appeal. I have written the judgment in CA/L/262/10.
The outcome is that the lower Court had no jurisdiction to make the order it made therein as the 3rd Respondent in that appeal (Appellant herein) was not a party in the suit at the lower Court and had no claim against the Appellants (1st & 2nd Respondents in this appeal). Having come to that conclusion, it means that the 1st and 2nd Respondents herein were under no obligation to serve on the Appellant the Motion on Notice dated 20/1/10 and filed on 2l/1/10, other processes in the suit and the hearing notices. Section 243 of the 1999 Constitution provides thus:
“243. Any right of appeal to the Court of Appeal from the decisions of Federal High Court or a High Court conferred by this Constitution shall be:
a. Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter……..”
If the Appellant had wanted to appeal as in interested party, he should have obtained the leave of the Federal High Court or this Court. No such leave was obtained. In the case of Contract Resource Nigeria
Ltd & Anor Vs. UBA PLC (2011) LPELR-8137 (SC), the Supreme Court per Mukhtar JSC (as he then was) observed:
“The law requires that a party who was not a party in the lower Courts and seeks to appeal against a decision, of which he did not take part in the proceedings, has to seek and obtain leave to be a party in an appellate Court. In the instant case, Contract Resource Nigeria Ltd did not obtain such leave, and so he lacks locus to be an appellant in this Court. In the circumstance that leave was not obtained the appeal becomes incompetent. See Akande v. General Electric Ltd. 1979 3-4 SC. 115 and Ikweki v. Ebele 2005 11 NWLR (Pt. 936) 396.”
Rhodes-Vivour JSC in the above case emphasized that such a person would obtain leave if and only if he is able to satisfy the Court that he is an interested party; and that an applicant filing an appeal without satisfying the pre condition is merely wasting his time. See also Societe General Bank Nigeria Ltd v. Afekoro (1999) 11 NWLR (Pt. 628) 521.
I read the cases of Okesade V. Ogunkayode (Supra); Aniekan v. Aniekan Supra and Godwin Josiah v. The State (Supra) referred to by learned counsel, I do not find them useful for
the purposes of this preliminary objection.
Since the Appellant was not a party in the lower Court and did not obtain leave to appeal as an interested party, the appeal is incompetent and she lacks the locus standi to initiate this appeal. This Court consequently has no jurisdiction to entertain this appeal. See Opobiyi V. Muniru (2011) LPELR-8232(SC);?Maduka v. Nkwmdilim (1962) 2 SCNLP 342; THOMAS V. Olufusoye (1986) 1?NWLR (Pt18) 669.
The preliminary objection succeeds and is upheld. The appeal is hereby struck out. I make no order as to costs.
?
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO J.C.A.: I have had the privilege of reading before now, the judgment just delivered by my learned brother, IYIZOBA, JCA. I agree with the limpid reasons therein advanced to arrive at the inevitable conclusion that the preliminary objection succeeds and ought to be upheld.
Having also read the records of appeal and the brief of argument of the learned counsel to the respective parties, I also join in upholding the preliminary objection. I abide by the consequential order(s) made in the leading judgment.
?
JAMILU YAMMAMA?TUKUR J.C.A.: I read the lead judgment delivered by my learned brother Chinwe Eugenia Iyizoba JCA. I am in agreement with the reasoning and conclusion.
?I fully endorse the the judgment and also abide by the consequential orders including orders of no costs.
Appearances
A. NWACHUKWU, ESQ. WITH HIM, O. DUKOYA (MISS)For Appellant
AND
FEMI ATOYEBI, SAN WITH HIM, ROTIMI ADUBA, ESQ. AND AMINAT SAIDU (FOR THE 1ST & 2ND RESPONDENTS)
3RD & 4TH RESPONDENTS NOT REPRESENTED.For Respondent
