Court name
Court of Appeal
Case number
L 616 of 2012

Mv. Courageous Ace And Ors v Nigerdock Nigeria Plc (L 616 of 2012) [2016] NGCA 74 (09 March 2016);

Law report citations
Media neutral citation
[2016] NGCA 74
Headnote and holding:

This case concerns liability for damage caused to a vessel.

The court considered whether the trial court had jurisdiction over the second appellant which was only served indirectly. The court held that where a party does not object to any irregularity or invalidity in the service of process on him before
The trial court, he waives his right. In this case the second appellant, then defendant, did not object. Consequently, the court found that the trial court did indeed have jurisdiction.

The second ground of appeal was declared incompetent.

The court also considered whether the trial court had taken into account all evidence. It held that where a trial court unquestionably evaluates the evidence adduced and appraises the facts, it is not the business of the appellate court to substitute it is own view. The court was satisfied that the trial court took all evidence into account, although it was not explicitly referred to in the judgement. Consequently, the court decided against the appellants.

The court finally considered whether the negligence precludes the right to limit liability. It held that the ship master is the alter ego of the vessel on behalf of the owner. Consequently, the owner, together with the other appellants, was held jointly and severally liable. 

The appeal was dismissed.
 

 

 
 
IN THE COURT OF APPEAL
Holden at Lagos
 

Between

APPELLANT

1. THE MV. COURAGEOUS ACE
2. THE OWNERS/CHARTERES OF MV. COURAGEOUS ACE
3. THE MASTER OF THE VESSEL MV. COURAGEOUS ACE

and

RESPONDENT

NIGERDOCK NIGERIA PLC

 
JUDGEMENT

SAMUEL CHUKWUDUMEBI OSEJI: The appeal is against the Judgment of the Federal High Court, Lagos Division, delivered on the 6th July 2012 by M.B. Idris J. wherein the plaintiff’s claim was granted.
The three Appellants herein were the defendants in the lower court while the Respondent was the plaintiff.

The Respondent had as plaintiff in the lower court filed a writ of summons dated 7-6-2006 together with a statement of claim against the Appellants.

By a further amended statement of claim dated 28-6-2010 the Respondent sought the following reliefs:-

26.    “WHEREOF the Plaintiffs claim against Defendants jointly, severally or in the alternative as follows:
        
a.    The Plaintiff claims the sum of N31,944,957.54.00 (Thirty One Million, Nine Hundred and Forty Four Thousand, Nine Hundred and Fifty Seven Naira, Fifty    Four kobo) being loss of use and the cost of repairs of the two vessels to wit (i) MM105 22-Passenger Water Bus Vessel powered by 200 horsepower Yamaha Engines and (ii) A 27 18-Passenger Water Bus Vessel powered by 115  house power Yamaha Engines damaged by the 1st Defendant on 6th June 2006 when the Defendants negligently and recklessly executed a     180o  turn directly opposite the Plaintiff’s jetty and shoreline at an abnormally high speed which resulted in the development of severe propeller wash and undercurrent occasioning and damage to the two vessels moored thereat.
b.    The sum of US$15,000.00 (Fifteen Thousand US Dollars being cost of this action and legal fees incurred by the     Plaintiff in securing the arrest of the 1st Defendant prior to institution of this action.
c.    Interest on the judgment sum at 10% or statutory rate or other rate as the Court may approve.”
The Appellants also filed amended statement of defence dated 18/2/2011.

At the trial that subsequently followed, the Respondent called 4 witnesses and tendered Exhibits A to L5 while the Appellants called one witness and tendered Exhibits (M-R).
Briefly put the facts of this case as present by the Respondent was that, about the 6th June 2006, the 1st Appellant under the control and management of the 3rd Appellant negligently and recklessly executed a 180o degree turn directly opposite the Respondents jetty and shoreline at snake Island, Lagos:

The 180o degree turn then resulted in the development of severe propeller wash and under current which travelled under the Respondent’s jetty and overturned two moored vessels which were under the lease, control, possession and management of the Respondent.
The appellants denied any liability of negligence and at the conclusion of the trial at the lower court judgment was entered in favour of the Respondent on 6-7-2012.

Appellants were aggrieved with the said judgment and consequently filed a notice of Appeal dated 16-7-2012.  This was followed by an amended Notice of Appeal dated 27-10-2014 and it contains four grounds of appeal.

Parties subsequently filed and served their briefs of argument.  The appellants’ amended brief of argument’s dated and filed on 28-2-2014 but deemed properly filed on 24-3-2015.

The Respondent’s brief of argument is dated and filed on
20-4-2015 while the Appellant’s reply brief was filed on 16-10-2015 but deemed filed on 2-2-2016.

At the hearing of the appeal on the 2-2-2016 the parties duly adopted and relied on their respective briefs of argument.

In the Appellants’ amended brief of argument four issues were formulated for determination as follows:-
(1)    Whether the learned trial judge could exercise jurisdiction over the 2nd Defendant/Appellant.
 
(2)    Whether the Appellants were negligent and reckless in     maneuvering the 3rd Appellant in such a way as to cause damage to two moored vessels at the Respondent’s jetty.

(3)    Whether the learned trial Judge adequately evaluated the totality of the Appellants’ evidence.

(4)    Whether the negligence or otherwise of the 2nd Appellant precludes their right to limit their liability in accordance with  Section 363 of the Merchant Shopping Act Cap. Mil laws of the Federation 2004.

In the Respondent’s brief of Argument filed on 21-4-2015 four issues were also distilled for determination.  To wit:-
(1)    Whether the learned trial Judge rightly exercised    jurisdiction over the 2nd Appellant.

(2)    Whether the learned trial Judge was right to hold that the Appellants had been negligent and reckless.

(3)    Whether the trial Judge evaluated relevant material evidence.
(4)    Whether, considering the overall evidence placed before the    lower court by parties, the court was right in holding in its judgment that the 2nd Appellant cannot limit their liability under Section 363 of the Merchant Shipping Act, cap Mill,     Law of the Federation 2004.

The issues canvassed by the both parties are virtually similar.  I will however adopt the four issues raised by the Appellants in the consideration of this Appeal.

ISSUE ONE:
Dwelling on this issue learned counsel for the Appellants submitted that the originating processes in the suit at the lower court which were ordinarily meant to be served on the 2nd Appellant who was resident outside jurisdiction were served through the 3rd Appellant.

He argued that the law is that an originating process meant for service on one defendant cannot be served on another and it matters little that the 2nd Appellant eventually entered appearance through counsel.  He relied on the case of MANAGEMENT ENTERPRISES LTD VS OTUSANYA (1987) NSCC 577, UNION BEVERAGES LTD VS ADAMITE CO. LTD (1990)7 NWLR (PT 162) 348 and UBA PLC V. OKONKWO (2994)5 NWLR (PT 867) 468.

This court was then urged to hold that the judgment of the lower court is void for lack of Service on the 2nd Appellant.
Replying on this issue, Learned Counsel for the Respondent contended that the issue of non-direct service on the 2nd Appellant was being raised for the first time, having not been so done in the lower court.  It was then submitted that receipt and acknowledgment of service by the 3rd Appellant on behalf of the 2nd Appellant is sufficient to show that the 2nd Appellant was aware of the suit and was not in any way prejudiced.

He added that the 2nd Appellant having entered appearance through their counsel on record and having filed all the relevant processes in response to the Respondent’s claim has submitted to the court’s jurisdiction.  He cited the case of FIRST INLAND BANK PLC VS GILBERT FIDDI (2013) LPFLR (20832)) CA.

It was further contended that having entered appearance and took part in the whole proceedings before the trial court up to delivered of judgment, the 2nd Appellant will be deemed in law to have submitted to the jurisdiction of the court and waived his right  to be directly served.  Vide FIRST INLAND BANK PLC VS GILBERT FIDDI supra at page 20.

In their reply brief of argument learned counsel for the Appellants further referred to the case of M.V. WATER STAR 812 ORS VS BLLIZARD SHIPPING CO. LTD (imported) CA/L/368/2009 where this court held that irregularity in the service of an originating process could not be waived.

It is trite law that the issuance and service of an originating process on a defendant in a case is a condition precedent for the exercise of the jurisdiction which the court may have over the subject matter of an action.  It is a condition precedent to the competency of court in assuming jurisdiction and adjudicating over the legal rights of litigants.  Therefore any matter or proceedings affected by lapse in the service of process suffers a fundamental flaw because it is the fulfillment of such condition precedent that clothes the court with competency.  See NWABUEZE VS OBI OKOYE (1988) 10-11 SC 79; AGIP (NIG) LTD VS EZENDU (2010) 1 SC (PT II) 98; KIDA VS OGUNNMOLA (2006) 6 SCNJ 165; SKENCONSUCT (NIG) LTD VS UKEY (1981)1 SC 4.

In the instant case the contention of counsel for the Appellants is that the 2nd Appellant who is outside jurisdiction was not served directly but through the 3rd Appellant.

Records of this court show that the 1st Appellant is a privately owned ship and the 2nd Appellant is the owner and/or chatterer of the said ship while the 3rd Appellant upon whom the process of the court was served is the master of the 1st Appellant ship (MV Courageous ACE).  The three Appellants are equally represented by the same counsel in the lower court.

As much as it is the law that service of originating processes must be personal in the absence of which such omission becomes a fundamental of law but where an agent of a defendant as in this case receives such process on behalf of the said party who then proceeds to enter appearance and file all the necessary processes in response to the action and in fact takes part in the whole proceedings up to the delivery of judgment, it will be out of place for such party to now complain of lack of proper service on appeal because such complaint will be deemed to have been brought  late in the action.  Put in another way, where a party does not object to any irregularity or invalidity in the service of process on him before trial, it will be late in the day to start raising the issue after he had filed pleadings and fought the case on the merits, without earlier taking Preliminary Objection before the trial.  In such a situation, he must be deemed to have waived whatever right he had to challenge such irregularity of service.  This is the stance of the Supreme Court in the case of EZOMO VS OYACHIRE (1985) 2 SC 260.  See also FIRST INLAND BANK PLC VS GIRBERT FIDDI (supra) relied on by the Respondent.

In the instant case, having submitted to jurisdiction of the lower court by entry of appearance and full participated in the trial at the lower court the right to complain on issue of proper service of processes is deemed to have been by the 2nd Appellant.
This issue is accordingly resolved against the Appellants.

ISSUE TWO:
Herein, Learned Counsel for the Appellants referred to the finding of the Learned trial Judge at page 487 of the Record to submit that the decision was erroneous given the evidence of the Respondent’s four witnesses which were in the Appellants favour.  He further referred to the finding of the Learned trial Judge at page 484 of the Record to contend that he relied primarily on the testimony in chief of PW1 and PW4 to attribute negligence to the Appellants without regard to the response of the PW1 during cross-examination.

It was further submitted that the following facts are clear from the Respondent’s own testimony at the lower court:-
(a)    The 1st Appellant was being pulled by two Nigerian Ports Authority tugs.

(b)    The 1st Appellant was in a compulsory Pilotage Area.

(c)    A Nigerian Port Authority Pilot was on board the 1st Appellant.

(d)    The 1st Appellant, under the guidance and compulsory piotage of NPA tugs and NPA pilot, was attempting to turn at a designated turning point.

(e)    The sudden maneuver by the 1st Appellant that     resulted in damage to two moored vessels was     carried out in order to avoid hitting the Respondent’s jetty.

He added that the above facts show that the Appellants were not negligent in law as they did not breach the duty of care owed to the Respondent.

On the principle guiding the duty of care learned counsel referred to  Winfield and Jolowicz on Tort, 10th Edition at page 61 and Charles worth & Percy on negligence, 11th Edition at page 426 to further contend that the action of the Appellants in maneuvering the vessel in such a way as to cause an under current that capsized two vessels moored at the Respondent’s jetty  was reasonable and not a breach of duty of care, having been done in order to avoid a collision with the jetty, failure of which  would have resulted in greater damage to the jetty and possible loss of lives.

Therefore the Appellants cannot be said to have acted negligently prior to the maneuver because their vessel was being pulled by tugs under compulsory pilotage by an NPA pilot.

This court was therefore urged to resolve the issue in favour of the Appellants.

For the Respondent, it was submitted that ground 2 of the Notice of Appeal from which the issue was formulated does not flow from the judgment of the lower court in which case it should be discountenanced together with the issue so formulated there from.  Vide MADUIKE VS TETELIS (NIG) LTD (2015) LPELR (24288) CA.  In the alternative, it was submitted that the various portions of the evidence of  PW1 and PW4 quoted in paragraphs 5.6, 5.7, 5.9 and 5.10 of the Appellants brief of argument were quoted out of context with the  aim of misleading this court.  He added that the case of DARE VS FAGBAMILA (2009) 14 NWLR ([T 1160) 117 relied on by the learned trial Judge to reach the conclusion that the Appellants were negligent is relevant and applicable and the learned trial Judge duly considered the facts placed before the court by the parties together with the evidence adduced  before holding that the Appellants were negligent as show in pages 487 of the Record.

In the Appellants reply brief it was first submitted that ground 2 of the Appellants amended notice of Appeal arises directly from the pronouncement of the lower court as shown in page 493 of the record of Appeal.

Firstly, on this issue of Ground 2 not being derived from the judgment of the lower court.  The said ground 2 reads thus:-
“The Learned Trial Judge erred in law when he held that the Defendants were negligent and reckless in maneuvering the 3rd Appellant in such a way as to cause damage to two moored vessels at the Respondent’s jetty.”

A careful perusal of the judgment of lower court show that the said ground 2 cannot conveniently be linked to same with particular reference to the consideration of issue 3 by the lower court at pages 483 to 487 of the record.  Nowhere therein did the learned trial Judge make such a finding but merely restated that evidence on oath of the pw4.  I therefore agree with the submission of the learned counsel for the Respondent that Ground 2 of the Appeal does not flow from the judgment of the lower court.  A ground of appeal against the decision of a court must relate to such decision and should constitute a challenge to the ratio decidendi of the judgment.  Where a ground of appeal is not based on the finding of the court, such ground will be declared incompetent.  See ADEGOROYE VS AJAYI (2003) FWLR (PT 171) 591; REPUBLIC BANK LTD VS CBN (1998) 13 NWLR (PT 581) 306; APAPA VS FNEC (2012) 8 NWLR (PT 1303) 409 and BABATUNDE (2912)7 NWLR (PT 1299) 302.

In the instant case the ground 2 of the Amended Notice of Appeal does not flow from the decision or finding of the lower court and as such it is incompetent and it is accordingly discountenanced together with the Appellants issue 2 formulated therefrom.

ISSUE 3
Dwelling on this issue, learned Senior Counsel for the Appellants referred to Exhibits M to R tendered in evidence by the Appellants to submit that the learned trial Judge did not make any evaluation of the said documentary exhibits when in fact they were material to the Appellants’ defence at the lower court.  He added that proper and complete evaluation of evidence is a mandatory requirement for a valid judgment and cited in support, the following cases. MOMOH VS UMORU (2011)15 NWLR (PT 1270) 217 AT 274; AWUSE VS ODILI (2005)16 NWLR (PT 952) 416 AT 510; AMADU VS YANTUMAKI (2011)9 NWLR (PT 1251)161; OGUNJEMILA VS AJIBADE (2010)11 NWLR (PT 1206) 559. And TIPPI VS NOTANI (2011)8 NWLR (PPT 1249) 285.

It was further argued that where a court fails to properly evaluate the evidence of the parties, the resultant decision will be perverse and gives room for the Appellate court to reevaluate the evidence; Moreso that the conclusion of the learned trial Judge that the Appellants were negligent was as a result of his reliance on the evidence adduced by the Respondent and the trial Judge assumption that there was no evidence to the contrary.  Also contended was that the finding of the learned trial Judge that the Appellants were negligent was predicated on the assumption that there was no evidence to the contrary and such finding would not have occurred had the learned trial Judge considered the Appellants’ exhibit 01-02 which showed that there was an NPA pilot aboard the vessel and that control of the vessel have been handed over to the pilot.  Therefore the Appellants cannot be held to be reckless or negligent as alleged by the Respondent where the vessel was under the direct control of an NPA pilot in a compulsory pilotage area.

On this issue, it was submitted on behalf of the Respondent that what a court of law should look at and give probative value to, are only material and relevant exhibits or evidence.  Vide OKPARA VS NWACHI (2913) LPELR (22506) CA.

Reference was then made to Exhibit ‘M’ which is the Appellants’ witness statement on oath to submit that it is a material evidence and the lower court duly considered it in the judgment while Exhibits Nl to R though admitted in evidence are not relevant or material to the determination of issues raised for consideration which is based on tort of negligence.  In the alternative it was submitted that even if Exhibits N1 to R are found to be material by this court, it could proceed to make it is own evaluation and make a finding therefrom as held in ABIODUN VS STATE (2013)9 NWLR (PT 1358) 138.

It is now well established that the attitude of the appellate court to evaluation of evidence by the trial court is that where a trial court unquestionably evaluates the evidence adduced and appraises the facts, it is not the business of the appellate court to substitute it is own view with those of trial the court.  What the appellate court is required to do is to find out from the record whether there is evidence on which the trial court could have acted and on which the findings are based.  Thus ascription of probative value to the evidence of witnesses is pre eminently the business of the trial court which saw and heard witnesses and which an appellate court will not highly interfere with, unless for compelling reasons. See BF1 GROUP CORPORATION VS BUREAU OF PUBLIC ENTERPRISES (2012) 7 SC (PT III) page 1; AROWOLO VS OLOWOOKERE (2011) 11-12 SC (PT 11) 98.  

However, where the evidence which the trial Judge failed or neglected to evaluate is a document tendered as exhibit which does not involve demeanour of the witnesses then an appellate court is in a good position to evaluate the evidence and come to its own decision.  That is to say, that an appellate court is in as good a position as a trial court in evaluation of documentary evidence and ascription of probative value to it.  See AYUYA VS YONRIN (2011)4 SC (PT 11) PAGE 1; GONZEE (NIG) LTD VS NERDC ORS (2005) 8 SCM 99; OGBE VS ASADE (2009) 12 SC (PT III)37;  AKPAPUNA VS OBI NZEKA II & ORS (1983) NSCC 287.
In the instant case, the Appellants’ complaint is that the lower court did not consider the documents tendered in evidence and which were material to their defence and such non consideration led to an erroneous conclusion.

A perusal of the judgment of the lower court at pages 419 to 493 of the Record show that except for exhibit A to L tendered by the Respondents and Exhibit M tendered by the Appellants as statement on oath of DW1.  No specific mention or evaluation was made on Exhibits N to R which were also tendered by the Appellants.  They are marked as follows:-
EXHIBIT  N1 – Vessels International Tonnage certificate.
        EXHIBIT N2 – IMO NO 9252204
        EXHIBIT N3 – Certificate of Classification
        EXHBIT O102 – Log book extracts
        EXHIBIT P – Bell Book extract
        EXHIBIT – Q – Voyage plan
EXHIBIT – R – Certificates or Competence dated 12th  November 2008.
As earlier stated, it behooves the trial court to consider the evidence brought before it, whether oral or documentary and make a finding on same.  This is to avoid falling into the trap of being accused of making a perverse finding.  However, where the findings of a trial court are perverse, particularly in respect of documentary evidence, it is the duty of the appellate court to reconsider and re-assess the evidence and apply it if the justice of the case so requires.  See A.G. LEVENTIS (NIG) PLC VS AKPU (2007)6 SCNJ 242.

However a careful study of the said Exhibits which were not in anyway tied to any of the averments in the amended statement of defence or sworn deposition of the DW1 in order to show their specific relevance in the Appellants defence to a claim in tort of negligence.  Put in another way, none of the Exhibits was specifically referred to in the evidence of the Appellants witness but all that was deposed to in paragraph 8 thereof was that:-
    “That I rely on the following documents:
    (1)    The vessels certificates
    (2)    The Crew list
    (3) Certificates of competence of the crew.
    (4)    Statement of master, 2nd officer 3rd  officer and Chief Officer
    (5)    Log book ex tracts
    (6)    Bell book ex tract
    (7)    Voyage plan

    (8)    Pilot Statements.
Worse still the Dw1 in his Statement on Oath Exhibit ‘M’ deposed in paragraph 3 as follows:-
“That I make the depositions herein from interviews and discussions I had with Captain Ranjit Thomas Chacko following the alleged incident as well as documents, papers and information contained in my file of papers     concerning this matter.”

The lower court found the evidence of the said DW1 as hearsay and treated it as such and being the only witness of the Appellants, it had no option than to rely on the evidence of the Respondent witnesses to find whether negligence was proved and the said finding of the lower court was not appealed against and as such remains subsisting.  This to my mind also goes to affect the documents relied upon in his evidence and admitted as Exhibits M to R.

But for what it is worth a study of Exhibit N to R as enumerate above show that they have no bearing at all on the defence of negligence as put up by the Appellants:-
They merely relate to the certificate of the vessel, the certificate of competency of the crew etc.  Exhibits 01 and 02 specifically relied on in the Appellants submissions did not help matter also as they only provided information as the activities of the ship’s crew during the movement and did not show lack of duty of care which is the hall mark of the tort of negligence.  I need further emphasis that non of the contents of the Exhibits N to R was explained or given in evidence in defence by the Appellants but merely tendered and admitted without much ado.  It is an established principle of law that documentary evidence cannot serve any useful purpose in a trial where there is no  oral evidence led by  any of the parties to explain their essence in the  suit.  The court cannot be drawn into the arena of litigation to explain the use or relevance of documents dump on it.  See ADIKE VS OBIARERI (2002)4 NWLR (PT 758) 537; DURIMINIYA VS C.O.PP (1961) NNLR 70, ONIBUDO VS AKIBU (1961) NNLR 70; ONIBUDO VS AKIBU (1982) 12 NSCC 199 and BABA-LUNGU VS ZAREWA (2013) LPELR (20726) CA.

In the light of the above, I hold that though no specific pronouncement of findings was made by the trial court on the aforesaid documents tendered and admitted as Exhibits N to R; The evaluation of the said exhibits show that they serve no useful or evidential purpose in favour of the Appellants and added to that is the fact that they were merely dumped on the court without any explanation of their essence in the Appellants’ defence.  Accordingly this issue is resolved against the Appellants.

ISSUE 4

 Herein, Learned Senior counsel for the Appellants referred to Section 383 of the Merchant Shipping Act, 2004 to submit that the learned trial Judge was mistaken in his understanding of the provisions of the said Act, particularly as to the proper interpretation of the phrases “actual fault or privity.”  In this regard the Learned Senior counsel sought refuge from English law on the proper interpretation by relying on the book “limitation of liability for Maritime Claims, 2nd editio0n, By Patrick Griggs and Richard Williams.  He then submitted that for an owner of a ship to have actual fault in an act, the fault or privity must be the fault or privity of somebody who is not merely a servant or agent but somebody who the company is liable because his action is the very action of the company itself.

He added that the evidence before the lower court does not place actual fault or privity on the owners of the vessels, particularly with reference to the evidence of PW1 and PW4 as reviewed by the learned trial Judge which also shows that the 3rd Defendant is the master of the vessel while the 1st defendant is the vessel itself.

It was further submitted that there is a difference between the principle of negligence in tort and the principle of actual fault and “Privity” in maritime law.  Therefore the case of DARE VS FAGBAMILA (supra) relied on by the learned trial Judge does not apply with regard to the three elements of the tort of negligence.

Further submission was made to the effect that the learned trial Judge wrongly applied Section 363 of the Merchant Shipping Act 2004 by interpreting it to be in line with the provisions of Section 354 of the Merchant Shipping Act 2007.  He added that Section 354 of the 2007 Act completely changed the test for limitation of liability by removing the requirement of actual fault or privity in contrast with Section 363 of the 2004 Act which is the law applicable to the instant case as it was in force when the cause of Action arose in 2006 and not the 2007 Act.

It was also contended that in calculating the sum which the Appellants, liability is to be limited, Section 363 (2) (6) of the Merchant Shipping Act 2004 stipulates that the limitation figure per tone is to be set by the Minister and by virtue of the legal Notice No 94 of 1964, the limitation figure has been set at N47.50 per tonne per vessel which if the 2nd Appellant is to be liable and by virtue of its registered tonnage of 17,959 tones will bring the limitation sum to N853,052.50 (Eight hundred and fifty three thousand, fifty two naira fifty kobo).

This court was then urged to resolve the issue in favour of the Appellants.
For the Respondent, it was submitted that the Appellants misconstrued the position of the law because the owners of a vessel will forfeit the right to limit their liability once it is established that the damage that led to the liability was the actual fault or privity of the owners and where this is established through credible evidence, the owners of a vessel will not have the right to limit their liability under Section 363 of the Merchant Shipping Act.
Learned counsel referred to the holding of the trial court at page 363 of the Record to submit that the trial court was right in the interpretation of Section 363 of the Act because there was strong evidence of negligence on the part of the 1st 2nd and 3rd Appellants.

It was further submitted that contrary to the misrepresentation by the Appellants that there is no Nigerian case law relating to Section 363 of the Merchant Shipping Act, this court had the opportunity to consider the said Section in OWNER OF M.V.  “MIAMI MAIDEN” VS NIGERIAN PORTS AUTHORITY (2011) ALL FWLR (PT 583)1945 at 1962.

Where it was held that the issue of who is at fault is a matter of evidence and is to be decided by the court.  He added that in the instant case the learned trial Judge was right to have so held at page 363 of the Record.

Reference was made to the English Book “Limitation of liability in Maritime Claims,” relied on by the Appellants to contend that reliance cannot properly be placed on the said book by Nigerian courts because the interpretation of the phrase “actual fault or priority” by the English courts were based on the English Merchant Shipping Act of 1894 and the English Maritime Insurance Act of 1906 which are different from the Nigerian Merchant shipping Act of 2004 because the wordings are not same.

On the other hand , Learned Counsel referred to the book, (Limitation of liability for Maritime claims, A study of US Law, Chinese Law and International Conventions) (2001 Kluwer Law International) written by Xia Chen to contend that it provides a better approach to the interpretation of the phrase, actual fault or privity in which case the right to limitation of liability in line with the 2004 Act will not avail the 2nd Appellant because the 1st and 3rd Appellant are Agents and under the authority and full control of the 2nd Appellant.
It was further contended that it is hypothetical and unrealistic to attempt to differentiate between “actual fault or privity” in Maritime Law and negligence in Tort because the categories of tort are never closed and it relates to all areas of Civil Law whether Maritime or otherwise.

On the assertion by the Appellants” counsel that the Learned Trial Judge wrongly compared Section 363 of the 2004 Act with Section 354 of the 2007 Act, it was submitted that the comparison made by the Learned Trial Judge with respect to the two laws did not affect or influence his finding that Section 363 of the 2004 Act did not apply to the Appellants’ case as shown at page 491 of the Record.
In the Appellants’ reply brief, it was submitted that the English Merchant Shipping Act 1894 and the Nigerian Merchant Shipping Act of 2004 are not contextually incompatible but are rather in pari materia, relying on the decision of the lower court in  THE LELIEGRACHT NIGERIAN SHIPPING CASES Vol 3 1987-1990 page 372 at 378. Where the court restated the law on “actual fault or privity” in relation to our Merchant Shipping Act in particular and Nigerian Law in general.

It was added that the said decision shows clearly the position of the English law and that the Nigerian Merchant Shipping Law should be interpreted along the same lines.
With particular reference to the provision of Section 363 of the Nigerian Merchant Shipping Act 2004, the Learned Trial Judge held at page 419 to 492 of the Record as follows:-
For the reasons highlighted in support of my finding on the issue above, I am of the view that the provision of Section 363 of the repealed Merchant Shipping Act, 2004 will not apply in the circumstances of this case. The provision does not apply to the negligence acts of the Defendants as in the instant case. The hard evidence attributes the vessel’s maneuver that caused the wash to the act or fault or privity of the owners of the vessel. There is no hard evidence that the pilot from the Nigeria Port Authority was in charge of navigating vessel at the material time. See LENNARD’S CARRYING COMPANY LTD VS. ASIATIC PETROLEUM CO.LTD. (1915) A.C. 705; QUITADOR 31 LLYODS LEST LAW REPORT PG 129.

I will start by addressing first the contention of the Learned Senior Counsel for the Appellants that the Learned Trial Judge came to a wrong decision on the issue based on reliance on a combination of the Merchant Shipping Act 2004 and the Merchant Shipping Act 2007. From a carefully reading of the judgment of the Trial Judge this is not correct. He started by stating at page 490 to 491 of the Record that:-
“The Learned Senior Counsel for the Defendants relied on Section 363 of the Merchant Shipping Act Cap MII LFN 2004 in urging the Honourable Court to limit the liability of the Defendants in the instant suit: The said Act even though repeated applies to this case. See APC LTD VS NDIC (NUB LTD) (2006) 15 NWLR (PT 1002) 404. However, there is a contextual similarity between the provisions of Section 363 of the Merchant Shipping Act, 2004 and Section 354 of the Merchant Shipping Act 2007.
(Underlining for emphasis).

That was all that was stated about Section 354 of the 2007 Act no further analysis or reference to any authority was made to show any conclusion that the said provision applied to the instant case.
Rather the Learned Trial Judge clearly concluded that the provisions of Section 363 will not apply in the circumstances of this case given the negligent act of the Defendants.

That having been cleared, I need add that the stance of the Learned Trial Judge on the non-applicability of Section 363 of the Merchant Shipping Act to the facts of this case as earlier set out in this judgment is agreeable to me. This is so notwithstanding the English authorities as well as the Book referred to by the Learned Senior Counsel for the Appellants which to my mind is distinguishable from the circumstances of the case given that the 3rd Appellant who is the master of the 1st Appellant (the vessel owned by the 2nd Appellant is not merely an agent but someone who the 2nd Appellant will be liable because his action is assumed to be the very action of the 2nd Appellant itself being the owner of the 1st Appellant (the MV courageous Ace). It is therefore my strongly held view that a ship master as in the case of the 3rd Appellant goes beyond the scope of an officer in a sea faring vessel but is the alter ego of the vessel on a voyage on behalf of the owners.
He has the full control of every activity and takes full responsibility of any act or omission thereon on behalf of the owners of the vessel which in this case is the 2nd Appellant. In this regard the actual fault or privity provision in Section 363 of the Merchant Shipping Act 2004 does not and cannot avail the 2nd Appellant, moreso that the claim against them was jointly and severally and not specifically or solely  against the 2nd Appellant. On this premise, I find that the Learned Trial Judge rightly evaluated the evidence adduced before the court and came to a correct conclusion that the Appellants were liable for negligence in the manner their vessel was handled that led to damage to the two vessels moored at the Respondent’s jetty.

This issue is also resolved against the Appellants.
On the whole, my stance is that this appeal lacks merit and it is accordingly dismissed.

The judgment of the Federal High Court, Lagos Division, delivered by M.B. IDRIS J. on the 6th day of April 2012 is hereby affirmed.
Fifty thousand Naira (N50, 000) cost is awarded against the Appellants.

JOSEPH SHAGBAOR IKYEGH. J.C.A.: I had the honour of reading in print the judgment prepared by my learned brother, Samuel Chukwudumebi Oseji, J.C.A., with which I agree.
 
YARGATA BYENCHIT NIMPAR: I have had the privilege of reading in draft, the judgment of my learned brother SAMUEL CHUKWUDUMEBI OSEJI, JCA and I agree with him that the appeal is unmeritorious and should be dismissed. I also dismiss it and abide by the consequential order in the lead judgment.

COUNSEL

Toheeb Ipaye with E.Emedom (Miss) for the Appellant.
Kayode Ogunjobi with Bolaji Ramos for the Respondent.