PETROJESSICA ENTERPRISES LTD AND JESSICA TRADING COMPANY LTD v. LEVENTIS TECHNICAL COMPANY LTD (SC 294/1989) [1992] 6 (19 June 1992);

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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 19TH DAY OF JUNE 1992

SC 294/1989

BETWEEN

PETROJESSICA ENTERPRISES LTD AND JESSICA TRADING COMPANY LTD ......................................... PLAINTIFFS/APPELLANTS

AND

LEVENTIS TECHNICAL COMPANY LTD ........................................................ DEFENDANT/RESPONDENT

BEFORE: Muhammadu Lawal Uwais, CJN; Salihu Modibbo Alfa Belgore; Phillip Patrick Nnaemeka-Agu; Abubakar Bashir Wali; Idris Legbo Kutigi, JJSC

ISSUE

Whether a dispute over rent in respect of warehousing of goods due to be shipped should fall within the ambit of admiralty law?

 

FACTS

The appellants had claimed rental in respect of warehousing of goods from the respondent. The respondent had taken delivery of the goods after warehousing with the plaintiffs and had paid the Nigerian Ports Authority and the Department of Customs and Excise what had been due to them. When the matter came before the Federal High Court, Benin Division, the presiding judge held that the court lacked the necessary jurisdiction to hear the matter and transferred the case to the Bendel State High Court in accordance with the provisions of Section 7(1)(d) of the Federal High Court Act 1973.

The appellants then appealed to the Court of Appeal, maintaining that the dispute constituted an admiralty matter. In this they relied heavily on the wording of paragraph (h) of subsection (1) of Section 1 of the Administration of Justice Act, 1956 (England) as ostensible authority for conferring jurisdiction on the Federal High Court in Admiralty.

The Court of Appeal dismissed the appellants' appeal, mainly on the grounds that the issue before the court was not within admiralty jurisdiction of the Federal High Court. The Court of Appeal held further that the wording of the relevant paragraph in the Act was clear and unambiguous and that "warehousing" could never be deemed to have been included in the meaning of the "carriage of goods in a ship", as stipulated in the relevant paragraph. There had also not been any contract between the parties relating to carriage of goods in a ship or to the use of a ship.

Not satisfied, the appellants appealed to the Supreme Court.

 

HELD (Unanimously dismissing the appeal)

1.      On the relationship between the parties

Once the cargo had been off-loaded from the ship and received into a warehouse, the contract between the shippers and the consignee (the respondents) came to an end. Whatever may happen after that will be a matter of contract, but never a matter in admiralty. Belgore, JSC, at page 515.

 

2.      On jurisdiction

Once it had been established that this was not a matter in admiralty, the Federal High Court, Benin Division, was right in holding that it lacked the necessary jurisdiction to determine the dispute. Belgore, JSC, at page 516.

Mrs FE Ayanka-Wilson for the Plaintiffs/Appellants

K.S. Okeaya-Inneh, SAN, with O Uzamere for the Defendant/Respondent

 

The following cases were referred to in this judgment:

Nigeria

Aluminium Manufacturing Co (Nigeria) Ltd v Nigerian Ports Authority (1987) 1 NWLR (Part 51) 475

American International Insurance Co Ltd v Ceekay Traders Ltd (1981) 5 SC 81

Din v A-G Federation (1988) 4 NWLR (Part 87) 147

Katto v Central Bank of Nigeria (1991) 9 NWLR (Part 214) 126

Mokelu v Federal Commissioner for Works and Housing (1976) 1 NMLR 329

Okesuji v Lawal (1991) 1 NWLR (Part 170) 661

Okoye v NC & F Co Ltd (1991) 4 NWLR (Part 199) 501

Osadebay v A-G Bendel State (1991) 1 NWLR (Part 169) 525

Owoniboys Tech Services Ltd v John Holt Ltd (1991) 6 NWLR (Part 199) 550

Utih v Onoyivwe (1991) 1 NWLR (Part 166)

 

Foreign

Queen v City of London Court (1892) 1 QBD 273

 

The following statutes were referred to in this judgment:

Nigeria

Federal High Court Act 1973: Ss 7(1)(d), 22(2), 44

Federal High Court Act (Cap 134) Laws of the Federation of Nigeria 1990: S 7(1)

Merchant Shipping Act 1894: S 499

 

Foreign

Administration of Justice Act 1956 (England): Ss 1(1)(h), 2(a), 2(c)

 

The following Rules were referred to in this judgment:

Nigeria

Order Viii Rule 1 of the Federal High Court (Civil Procedure) Rules, Cap 134

Order 27 Federal High Court Rules

 

Belgore, JSC (Delivered the Leading Judgment):- The first appellant is a cleaning agent for the Department of Customs and Excise, shipping agent, warehouseman and forwarders. The second appellant is also a warehouse man, stevedoring contractor and freight forwarding company, but according to the claim, it also acts as agent of first appellant. The statement of claim, relating to warehousing of the defendant's cargo and rent due thereupon concluded as follows:-

"Whereof plaintiffs claim the sum of N270,470 due on the warehousing (including related services), the defendant's cargo, B/L No. 13 and B/L No. 14 ex Eco Ana of 28/10/77, Rotation No. 77/451, plus interest from 1 May 1977 until judgment."

The matter was filed before the Federal High Court, Benin Division, whereupon the defendant raised by way of preliminary objection contained in the concluding part of statement of defence as follows in paragraphs 19, 20 and 21:-

"19. The defendant will, before the trial or at trial, raise, by way of preliminary points of law, the followings:-

(a)     That both the writ of summons and statement of claim as formulated are improperly before the Court and ought to be struck out or dismissed on the ground that the proper parties are not before the Court.

(b)     That there is no proper plaintiff or plaintiffs before the Court having regard to paragraphs 1, 5, 6 and 14 of the statement of claim filed.

(c)     That the claim of the plaintiffs is neither founded on established contract or tort in law, the same being devoid of elements of breach of contract and/or Negligence and particulars respectively.

20.     The defendant avers and maintains that both the writ of summons and statement of claim disclose no cause of action against the defendant and ought to be dismissed.

21.     That the plaintiff's claims are misconceived, vexatious and speculative and should be dismissed. Dated at Benin City, 9 August 1984."

The Trial Federal High Court Judge heard the argument on the preliminary objection as formulated in the statement of defence, holding the objection to be demurrer, which at that stage of joining issues, was incompetent; for a demurrer would be valid, only if made before statement of defence, but after statement of claim has been filed. Thus, Order 27 Federal High Court Rules precludes demurrer on the filing of statement of defence. However, before the motion was argued, learned Counsel for the defendant, Okeaya-Inneh, SAN, raised another point, that of jurisdiction. The plaintiffs, now appellants, after some argument, agreed to the issue of jurisdiction to be cleared, first whereupon learned Federal High Court Judge heard the argument on the issue of jurisdiction. After very exhaustive consideration of the law, the Judge came to the conclusion that he had no jurisdiction, for the matter was not of jurisdiction in admiralty triable by his Court and relied on Section 7(1)(d) Federal High Court Act 1973. But, instead of striking out the suit, he invoked his powers under Section 22(2) Federal High Court Act and transferred the suit to Bendel State High Court for trial. Against this decision, the appellants appealed to the Court of Appeal.

The contention in grounds of appeal in the Court of Appeal was that the trial Judge erred in holding that this matter was not an admiralty matter. The grounds are as follows:-

"Ground 1:

The learned trial Judge misdirected himself in law and, in fact, when he held that for instant suit to sound in admiralty, "the agreement relating to the carriage of goods in a ship . . ." must be between the parties to the suit.

Particulars of Error:

(a)     Section 1(1)(h) of the Administration of Justice Act 1956 (England) enacts that admiralty jurisdiction includes: "any claim arising of goods in a ship or, to the use or hire of a ship."

(b)     Obaseki, JSC (delivering the lead judgment in case of Aluminium Manufacturing Co (Nigeria) Ltd v Nigerian Ports Authority (1987) 1 NWLR (Part 51) 485 at page 486 stated as follows:-

"In other words, any claim which arises from acts or omissions of third parties after the agreement has been "executed or terminated can not come within the purview of that paragraph (h) of subsection 1 . . ."

It is clear, from the above, that the claim, which is the cause of action, is clearly distinct from the agreement itself (referred to in subsection (h): The claim in AMC v NPA (supra) arises from acts of third parties. What put the case outside admiralty, is not that the agreement is not between the parties to the suit, it is that the parties "cause of action arose after the termination of goods in a ship . . .". It is clear that, in that case, the Nigerian Ports Authority, who is a party to the suit, is not a party to the agreement.

(c)     Upon the pleadings (statement of claim, defence and reply), it is clear that the agreement "relating to the carriage of goods in a ship, had not yet been completed before the storage and warehousing of the goods at Burutu occured. It is the case of the defence, that the destination of the cargo is Lagos, Apapa, and that this was the agreement between the shipper and the carrier, as evidenced by Bills of Lading Nos. 13 and 14 Ex. Eco Ana. The storage of the relevant goods at Burutu and the refusal/omission/neglect to pay rent are, therefore, acts or omission that took place before, not after the "agreement relating to the carriage of goods in a ship . . .".

 

Ground 2:

The learned trial Judge misdirected himself, in law and in fact, when he held that, because "there is no evidence or any averment in the statement of claim that the plaintiffs are the consignees of the goods or that they are the endorsees of the Bills of Lading, the provisions of the Bills of Lading Act cannot avail plaintiffs in this case."

Particulars of Error:

(a)     It is clear from the pleadings that the relevant Bills of Lading were duly endorsed to the defendant and, indeed, that the defendant took delivery of the material goods, the property passing to him.

(b)     Having thus taken delivery under the endorsed Bills of Lading, all the right and liabilities, including right to sue and be sued passed to the defendant.

(c)     Under clause 6 of the standard Bills of Lading of Facship Lines with which the defence is familiar, the carriage is responsible for the expenses of storage, pending transshipment and it is immaterial by what form or means that transship to port of destination took place.

(d)     Ordinarily, the plaintiffs ought to look to the carrier for his storage/warehousing rent. But, when the defendant interfered with the contract, evidenced in the Bills of Lading between the warehouseman and the carrier, and proceeded to substitute himself (the defendant) for the carrier by himself removing the goods from the warehouse, of the plaintiffs (without the authority of any release from the plaintiffs and proceeding to perform the duty of the carrier by himself effecting the transhipment to the port of destination), the defendant became liable to the plaintiff for wrongful interference with the contractual rights of the plaintiffs, one of which right is that, the warehouseman shall have lien on the goods for rent and expenses. It is for this tort of wrongful interference with contractual rights that the plaintiffs have sued the defendant.

(e)     Because the claim for rent derives from the agreement relating to carriage of goods in a ship . . . and because the wrongful interference with the right to collect this rent is the foundation of the claim of the plaintiff, the action is properly in Admiralty."

Learned Counsel for the appellants seemed to place more emphasis on the words "any claim arising out of any agreement relating to carriage of goods in a ship" in her argument to persuade the Court of Appeal that the case is within admiralty jurisdiction of the Federal High Court. The entire issues for determination centred round this contention in the appellants' brief of argument. The Court of Appeal, in a reserved judgment, unanimously dismissed the appeal. Ejiwunmi JCA copiously referred to several authorities on what is the jurisdiction of the Federal High Court by holding as follows, wherein he referred to pleadings:-

"In my view, the central issue that has to be resolved in this appeal is, whether the cause of action is a cause or matter in Admiralty. At the lower court, as no evidence was led, the learned trial Judge approached the resolution of the same question by an examination of the writ of summons, the statement of claim and the statement of defence filed by the parties, in order to resolve whether the objection to the jurisdiction was well founded. In this regard, the Court adopted, rightly in my view, the approach of the Supreme Court in National Bank (Nigeria) Ltd & another v John Akinkunmi Soyoye & another (supra).

I will, therefore, set down, first, the relevant paragraphs of the pleadings of the parties. In my view, paragraphs 5, 6, 9, 10, 11, 12, 13, 18, 21, 28, and 33 of the appellant's statement of claim are, therefore, relevant, and they are reproduced hereunder:-

. . .

The learned trial Judge, after due consideration of the pleaded facts by the defendant, now respondent, which are mainly a denial of any liability of the appellants claim, then considered whether all the facts, as found, fit into the scope and contents of the Admiralty jurisdiction of the Federal High Court, as spelt out in Section 1 of the Administration of Justice Act, 1956. And after due consideration of the several provisions of the Section of the Act, the learned trial Judge said as follows:-

"The question now is, can the facts of this case, as stated earlier in this ruling, fit into any of these questions or claims? Counsel for the plaintiff has submitted that, since it is clear that the writ of summons and the statement of claim involves ship, bills of lading and cargo, the claims fit properly into Section 1(1)(h) above. I am sorry, I cannot agree with this submission. The wording of this subsection is very clear, straightforward and unambiguous. It talks of any claim arising out of any agreement relating to the carriage of goods in a ship, or to the use (of a ship) or hire of a ship. In the first place, there is no agreement between the parties to this case, either in relation to carriage of any goods by ship or as to the use of a ship. Claim under this subsection cannot, therefore, by any stretch of imagination (sic) be extended to cover a claim for warehousing. Besides, looking into sub-Section 2(a) - (c) of Section 1 of the 1956 Act, I find myself unable to fit this claim into any of them."

With this conclusion of the learned trial Judge, I entirely agree, as that conclusion is in accord with my view of the interpretation of Section 1(1)(h) of the Administration of Justice Act, 1956."

He then referred to the case Aluminium Manufacturing Co Ltd v Nigerian Ports Authority (1987) 1 NWLR (Part 51) 475, 486. Thus, the appeal to this Court.

The grounds of appeal, for full understanding of the appellants' contention is hereby reproduced as follows:-

"Ground 1

The learned Justices of the Court of Appeal erred in Law in upholding a determination by the learned trial court in which the trial court declined jurisdiction, approaching and arriving at its determination by confining itself to an examination of the statement of claim and statement of defence only, ie to the exclusion of a reply timeously filed to the statement of defence.

Particulars

(i) Per Ejiwumi JCA, at page 9 of the lead judgment:-

"In my view, the central issue that has to be resolved in this appeal is, whether the cause of action is a cause or matter in Admiralty. At the lower Court, as no evidence was led, the learned trial Judge approached the resolution of the same question by an examination of the writ of summons, the statement of claim and the statement of defence filed by the parties in order to resolve whether the objection to the jurisdiction was well founded. In this regard, the court adopted rightly in my view, the approach of the Supreme Court in National Bank (Nigeria) Ltd & another v John Akinkunmi Soyoye & another (supra)."(My emphasis.)

(ii) But, a reply to the statement of defence was on record, duly filed on 2 October 1984, and averring that the cargo in question was cargo still in transit, stored at a (transit) port where it was awaiting further shipment to Bill of Lading port of destination (vide page 19 of Record of Appeal to Court of Appeal).

 

Ground 2:

The learned Justices of the Court of Appeal erred in Law when they failed to recognise a pleading in the statement of defence which brought the suit within Admiralty jurisdiction.

Particulars

(a)     Per Ejiwumi JCA at page 20 lead judgment:-

"The learned trial Judge after due consideration of the pleaded facts by the defendant, now respondent, which are mainly a denial of any liability of the appellant's claim, then considered whether all the facts, as found, fit into the scope and contents of the Admiralty Jurisdiction of the Federal High Court, as spelt out in Section 1 of the Administration of Justice Act 1956."

(b)     But the statement of defence did more than merely deny liability:-

"It pleaded specifically that 'Lagos Port, ie Apapa, was the port of destination agreed between Carrier and defendant, as evidenced by the trial, produce oral and documentary evidence to establish these facts and binding agreements' (page 14, lines 24/28)."

(c)     In effect, the defence pleaded that Burutu was not the port of destination for the cargo, as per the agreement evidenced by the Bills of Lading. With the goods not yet in Lagos, ie Apapa Port, "the agreement, relating to the carriage of goods in a ship or to the use or hire of ship", has not yet been carried out or terminated."

(d)     The services and facilities provided at Burutu were at the request of the Master, who is necessarily obliged to render himself liable, in order to carry out his duty as Master. They are either in respect of hull, machinery, cargo and freight, or else, other disbursements. The point is that the Master requested them in order to render the vessel sea-worthy (ie) free and ready for the next voyage. It is either a claim founded on interest on cargo, which is still the subject "of any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship" or else, it is founded on interests on hull, etc. in which case the issue comes under Section 1(1)(p) of the Administration of Justice Act, 1956.

 

Ground 3:

The Learned Justices of the Court of Appeal erred in Law and misinterpreted Section 1(1)(h) of the Administration of Justice Act, 1956, when they held that Section 1(1)(h) implied that, at the material time, the cargo must actually be inside the carrying vessel, so that for the "claim arising" to come within the cognisance of Admiralty jurisdiction, it (the claim) must arise while the relevant cargo is actually in the carrying vessel. In any event, the learned Justices erroneously oversighted Section 1(1)(p) of the 1956 Act.

Particulars

(a)     At page 23, line 3/11, of the lead judgment, the learned Justices of Appeal said:-

"Based upon all the principles enunciated above, the facts of this case show, quite clearly, that the goods which gave rise to the cause of action had been fully discharged on land. It would be straining unduly the provisions of Section 1(1)(h) of the 1956 Act, that the claim ought to be regarded as one arising out of any relating to the carriage of goods in a ship or to the use or hire of a ship. From the above observation concerning the situs of the cargo, it is my view that the appellants claim does not fall within the provisions of Section 1(1)(h) of the Act."

(b)     In view of paragraph 21 of statement of claim and paragraph 4 of reply to statement of defence, Section 1(1)(p) is available to use for re-imbursement in respect of expenses for stevedoring and warehousing.

 

Ground 4:

The learned Justices of the Court of Appeal erred in Law when they held that there is jurisdiction to commence upon a determination and yet, at the same time and in the same matter, proceed to determine the merits of the case which, for lack of jurisdiction, he was transferring to another High Court.

Particulars

In the lead judgment of the Court of Appeal, Ejiwunmi JCA said:-

"I agree entirely with the views expressed by the learned trial Judge in the passage above".

And what is the passage? It is this, the citation of which arose in this manner: The learned trial Judge first cited Section 499 of the Merchant Shipping Act 1894:-

"499 - Whenever any goods are placed in the custody of a wharfinger or a warehouseman under the authority of this part of this Act, the wharfinger or warehouseman shall be entitled to rent in respect of the same and shall also have power, at the expense of the owner of the goods, to do all such reasonable acts as in the judgment of the wharfinger or warehouseman, are necessary for the proper custody and preservation of the goods and shall have a lien on the goods for rent and expenses."

Then he went on:-

"But there is no indication as to which Court has jurisdiction to enforce such rent or expense. But, it is my respectful view that such court is certainly not admiralty court. Assuming, but without agreeing, that the applicable court is the admiralty court, yet before the jurisdiction of the court could be evoked, there must be proper agreement between the wharfinger or warehouseman and the owner of the goods. There is nothing like that in this case. From all I have been saying, I am satisfied that this case does not fall within the Admiralty jurisdiction to try the case." (My emphasis.)"

Mrs Ayanka-Wilson, of Counsel formulated in her brief of argument for the appellants:-"Issue for Determination:-

These are three:-

(i) Whether on the analogy of proceedings by demurrer, there is a limitation set as to how much of the proceedings (or what minimum range of proceedings) is relevant and/or necessary for a determination of the issue of jurisdiction;

(ii) Whether mere discharge, simpliciter of the relevant cargo from the carrying vessel also discharges ipso facto the owner/carrier/master from the agreement of carriage by sea? Put differently:-

Whether the proper question to ask is not (a) below, rather than (b):-

(a)     Is the agreement relating to the carriage of the relevant goods in a ship still subsisting or has it been determined, when the cause of action in the suit arose?

(b)     Has the cargo been discharged/unloaded or not, when the cause of action in the suit arose?

(iii) Whether the Ruling of the learned trial Judge on the issue of jurisdiction is not premature, thus seemingly leading to the anomalous position in which the learned trial Judge, after declining jurisdiction, immediately resumed it to pronounce on the merits of the case: to the effect that "as between the wharfinger/warehouseman and the owner of cargo (ie as between the parties to the main suit) there is no proper agreement"! Put differently:-

Whether the seemingly unguarded incursion of the learned trial Judge into the merits of the case, after himself declining jurisdiction, is not because the learned trial Judge did not first examine how the action of the Master of the M/V Eco Ana in depositing cargo in the plaintiff's warehouse at Burutu came to give rise to defendant's liabilities to plaintiff for rent."

To this formulation of issues is the respondent's brief which telescoped the issues to these:-"Issues for Determination:-

Notwithstanding the above, the Issues are:-

(a)     Whether the claim as formulated in the writ of summons and pleadings, and on the briefs filed by the parties, the Court of Appeal was right in upholding the Ruling of the Federal High Court?

(b)     Whether the Court of Appeal was also correct in having upheld the ruling of the Federal High Court, the subsequent order for transfer was justified in the circumstance?

To my mind, the issues formulated by the appellants in their brief seem to go far beyond what they pleaded in the Court of trial. Simply put, the claim at the Federal High Court was for rent for warehousing the respondents goods as discharged by The m/v ECO ANA. The ECO ANA was to discharge the cargo into Lagos Port but, it seemed this was impossible due to congestion and the respondent, as owners of the cargo, agreed that the discharge be effected at Burutu. The Nigerian Ports Authority apparently was in league with this alternative arrangement as it opened the warehouse, released the cargo to the respondent and was duly paid its dues. To the respondent, the appellants had no locus in this matter as they were neither privy to their agreement with the Eco Ana nor with the respondent; if the appellants had a previous arrangement with the Nigerian Ports Authority, certainly it had nothing to do with the respondent. What the appellants contended in the two lower courts and right to this Court is that the Federal High Court has jurisdiction to hear this matter, as it was a matter in admiralty. The applicable law at the time of trial is the Administration of Justice Act (of England) 1956 (4 and 5 Eliz 2 c. 46) in Part 1 thereof, where the Admiralty jurisdiction of the High Court is clearly enumerated inter alia as follows:-

"1.     Admiralty jurisdiction of the High Court

(1)     The Admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following questions or claims:-

(a)     any claim to the possession or ownership of a ship or to the ownership of any share therein;

(b)     any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;

(c)     any claim in respect of a mortgage of or charge on a ship or any share therein;

(d)     any claim for damage done by a ship;

(e)     any claim for damage received by a ship;

(f)      any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship;

(g)     any claim for loss of or damage to goods carried in a ship;

(h)     any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship."

The appellants relied heavily on the words, "any claim arising out of any agreement" in subsection (1)(h) above as conferring jurisdiction on Federal High Court in Admiralty. Certainly a misconception could lead to mischief if a statutory provision is to be read out of context. The subsection mentions in full:-

"any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship".

The claim of the appellants as plaintiffs relates to rent due on warehousing the goods of the defendant company. The statement of claim, statement of defence and reply to statement of defence, all allude to claim for rent. The respondent, as consignee of the cargo, was to take delivery in Lagos from the ship. Due to port congestion in Lagos, the ship was diverted to Burutu. There is no contract between the appellants and the respondent on warehousing, rather, the agreement was with the Ports Authority who delivered the goods to the respondents at Burutu. Once there is a discharge from the ship, once the consignee has been notified through his clearing agent in Lagos and the alternative port of discharge has been accepted, the matter, completely, was no longer with the shippers because they owed no responsibility for its warehousing. The matter, as rightly pointed out, is mere contract and not a subject for jurisdiction in Admiralty. The jurisdiction of Federal High Court, as at the time the suit giving rise to appeal was filed is inter alia as provided in Section 7(1) of Federal High Court Act (Cap 134) Laws of the Federation of Nigeria 1990 as follows:-

"7      (1)     The Court shall have and exercise jurisdiction in civil cases and matters:-

(a)     . . .

(b)     . .

(c)     . .

(d)     of Admiralty jurisdiction.

(e)     . .

(f)      . . "

The Admiralty jurisdiction of the Federal High Court has been enumerated in Administration of Justice Act 1956 (supra) and it is clear that this matter has nothing to do with Admiralty jurisdiction. The mere fact that goods, at one stage in their movement, had a voyage on a ship, is not ipso facto giving rise to jurisdiction in Admiralty for cargo already discharged and only to be collected by the consignee or his agent. The contract covered by Admiralty jurisdiction, that of voyage in a ship and discharged finally to port of consignment and in conformity with the contract, finally discharges the shipper from his obligation on the goods. In the instant case, the respondent company, as consignee, took delivery of the goods and paid the Nigerian Ports Authority and Department of Customs and Excise their dues. (See Aluminium Manufacturing Company Ltd v Nigerian Ports Authority (1987) 1 NWLR 473, 486 (Part 52); American International Insurance Co Ltd v Ceekay Traders Ltd (1981) 5 SC 81). The law governing the Admiralty jurisdiction of Federal High Court is the Administration of Justice Act 1956 (supra) and if there is any claim arising after the termination of agreement between the shippers and consignee, it will be over stretching the purport of Section 1(1)(h) of the Act to interprete the provisions of a contract thereafter, as that in admiralty. Once the cargo was unloaded from the ship and received into the warehouse without any loss or blemish, the shippers obligation terminates and what follows is mere contract, not a matter in admiralty. It is true, there is incident of what is known as Admiralty as "Diversion", whereby, in this case, the cargo was discharged at Burutu, instead of Lagos, as envisaged in the contract, the consignee has not complained. The consignee's handlers in Lagos and the Nigerian Ports Authority agreed to the alternative port of discharge, and if the appellants claim they have to come in, they can do so only in respect of mere contract, express or implied, but not in Admiralty. Thus, the goods in the warehouse at Burutu, after their discharge, were not goods in a ship as stipulated in Section 1(1) (h) of the Administration of Justice Act 1956 (supra).

Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. The Federal High Court's jurisdiction is clearly set out in Section 7 of Federal High Court Act (Cap 134 Laws of Federation of Nigeria 1990) and that Court cannot arrogate to itself a jurisdiction it has not got. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court, a fortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on the issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction, it can be raised, even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity. (Osadebay v A-G Bendel State (1991) 1 NWLR (Part 169) 525; Owoniboys Tech. Services Ltd v John Holt Ltd (1991) 6 NWLR (Part 199) 550; Okesuji v Lawal (1991) 1 NWLR (Part 170) 661; Katto v Central Bank of Nigeria (1991) 9 NWLR (Part 214) 126; Utih v Onoyivwe (1991) 1 NWLR (Part 166) 166). Thus, there was a motion verbally objecting on jurisdiction at the Federal High Court, learned trial Judge was right to take it up, for by merely looking at the pleadings, it was obvious that matter of jurisdiction was pertinent. (Okoye v NC & F Co Ltd (1991) 4 NWLR (Part 199) 501; Din v A-G Federation (1988) 4 NWLR (Part 87) 147). At the end of addresses by Counsel, the learned trial Judge ruled, he had no jurisdiction and he is perfectly right. The matter before him was one of ordinary contract, not in Admiralty and he was right to invoke Section 22(2) of Federal High Court Act 1973, that though the matter was not properly before his court, he would not dismiss it but, transfer it to a State High Court of competent jurisdiction. (Aluminium Manufacturing Co Ltd v Nigeria Ports Authority (supra)).

For the foregoing reasons, this appeal has no merit and I dismiss it with N1,000 costs to the respondent.

 

Uwais, JSC:- I have had the opportunity of reading in advance, the judgment read by my learned brother Belgore, JSC. I agree that the appeal has no merit.

With the discharge of the cargo at Burutu and its being kept in a warehouse, any dispute arising therefrom cannot come under the ambit of Section 1 subsection (1)(h) of the Administration of Justice Act, 1956 of England which defines Admiralty jurisdiction to inter alia relate to:-

"(h) Any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire in a ship."

For in Aluminium Manufacturing Co (Nigeria) Ltd v Nigerian Ports Authority, (1987) 1 NWLR (Part 51) 475 this Court held, per Obaseki, JSC at page 486G, as follows:-

"It will amount to ridiculous interpretation to say that because the goods had been carried in a ship, any claim for damage or loss occurring after the completion of the journey by sea to Apapa occurring anywhere on land falls within the paragraph."

The appellants' Counsel argued that because the cargo was originally meant for Lagos and the fact that it was diverted and discharged at Burutu, did not terminate the agreement to deliver it at Lagos and, therefore, anything that happened to the goods at Burutu should be regarded to have happened to it, in the course of carriage by a ship. In my opinion, the fact that the consignee of the cargo, that is the respondent, decided to take delivery of the cargo at Burutu, impliedly terminated the agreement for the shippers to take the cargo to Lagos. The storage of the cargo at the warehouse at Burutu cannot rightly be said to be part of the shipping of the cargo to Lagos. For, to so hold will be contrary to our decision in the case of Aluminium Manufacturing Co (Nigeria) Ltd (supra).

The learned trial Judge was right to have transferred the case to the High Court of Bendel State, Benin, on finding that the case did not relate to Admiralty and that he had no jurisdiction to hear it. In doing so, he acted in accordance with the provisions of Section 22 subsection (2) of the Federal High Court Act, Cap 134 of the Laws of the Federation of Nigeria, 1990 which provides:-

"(2)    No cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the High Court of State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the Judge of the Court, before whom such cause or matter is brought, may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act."

and Order Viii Rule 1 of the Federal High Court (Civil Procedure) Rules, Cap 134 which states:-

"1.     Where the Chief Judge or any Judge has, in the exercise of the powers conferred by Section 22(2) of the Act, directed that any cause or matter be transferred to the High Court of a State, the Chief Judge or, as the case may be, the Judge shall make an order under his hand to that effect and shall specify in the order, the High Court and the Judicial Division thereof, to which the cause or matter is to be transferred."

as well as the decision of this Court in Mokelu v Federal Commissioner for Works and Housing, (1976) 1 NMLR 329 at page 333.

It is for these and the fuller reasons contained in the judgment of my learned brother Belgore, JSC that I too will dismiss this appeal and affirm the decision of the Court of Appeal, with N1,000 costs to the respondent.

 

Nnaemeka-Agu, JSC:- Shorn of all irrelevancies, the straight issues in this further appeal by the plaintiffs is as stated by learned Senior Advocate for the respondent, Mr Okeaya-Inneh, in his client's brief thus:-

"(a) Whether the claim as formulated in the writ of summons and pleadings, and on the briefs filed by the parties, the Court of Appeal was right in upholding the ruling of the Federal High Court ie (plaintiffs) action did not fall within the Admiralty of Federal High Court?

(b)     Whether the Court of Appeal was also correct in having upheld the ruling of the Federal High Court, the subsequent order for transfer was justified in the circumstance?"

It is useful to set out in full the plaintiffs' claim as endorsed in the writ of summons. It runs thus:-"Writ of Summons

The plaintiffs' claim is for the sum of N270,470 due on the warehousing of defendant's cargo for 472 days. Plaintiffs also claim damages.

Particulars

In the closing months of 1977, the Master of S/S Eco-Ana landed cases of Electrical/Gas Cookers at Burutu Port and discharged/warehoused them in second plaintiff's warehouses within the port (ie Nigerian Ports Authority sheds rented by second plaintiff) of which first plaintiff was warehouseman. The said cargo remained warehoused in the said sheds for a period of 472 days, when the defendant and his agents, without tendering to the warehouseman the relevant Bills of Lading, without securing the release of his cargo by the warehouseman's consent, removed and took away his cargo from the said sheds.

Dated at Benin City, 3 May 1984.

(Sgd) F. E. Ayanka Wilson (Mrs) Solicitor to Plaintiff,

Plot D.38 Golf Course Road, Benin City GRA."

The 33 page statement of claim was devoted to amplifying the grounds of claim, based on warehousing in Burutu Port. Significantly, in no part of the statement of claim, did the plaintiffs plead that the goods were still in transit or were wrongly discharged in Burutu instead of Lagos, in accordance with the bill of lading, as learned Counsel now claims, in order to sustain the contention that the suit was an Admiralty matter. The defence joined issues on the facts raised in the statement of claim.

On the issue of jurisdiction being set down for hearing, the learned trial Judge, Ojutalayo, J, sitting in the Federal High Court, Benin, in a well considered and researched ruling held that the matter was, on the face of the claim and the pleadings, not an Admiralty matter and so he lacked jurisdiction to entertain the suit. Then, pursuant to the power conferred upon him by Section 22(2) of the Federal High Court Act, 1973, and relying on decided cases, he transferred the matter to Benin Division of the High Court of Bendel State for adjudication.

On appeal to the Court of Appeal, Benin Division, that Court, coram: Ogundare, JCA (as he then was), Ndoma-Egba and Ejiwunmi, JJCA, dismissed the appeal.

The plaintiffs have appealed further to this court. I am satisfied that the two courts below came to a correct decision on the issue. It was clearly not an Admiralty, but a common law matter arising from the charges, costs and expenses on the warehousing of the defendant's goods in the Port of Burutu. I agree with Mr Okeaya-Inneh that the goods which gave rise to the cause of action had been fully discharged from the ship and so the Admiralty jurisdiction over the transaction had ceased. It is settled that once a cargo has been discharged from the vessel, carriage by sea, Admiralty jurisdiction ends. (See on this: Aluminium Manufacturing Company (Nigeria) Ltd v Nigerian Ports Authority (1987) 1 NWLR 475). The locus for Admiralty jurisdiction is the high sea: Queen v City of London Court (1892) 1 QBD 273, Part 294. A warehouse in Burutu Port is not a part of the high sea and so a suit arising from the warehousing of the goods therein cannot be an Admiralty matter.

No serious argument has been advanced on the power of the Federal High Court to transfer the matter once it came to the conclusion that it was an Admiralty matter. Rather, learned Counsel for the appellant submitted that the ruling on jurisdiction was premature; that the learned trial Judge should have heard evidence first to enable him to come to the correct decision with respect to the cause of action. I am of the view that this submission is based on a fundamental misconception. Evidence in every case is limited to and circumscribed by the facts pleaded in the case. Any piece of evidence on a fact not pleaded goes to no issue in the case and ought to be expunged or ignored. As it is so, any issue of jurisdiction in a case could be taken on the face of the statement of claim or on close of pleadings, although it could be taken later - even on appeal. So, the complaint of prematurity, of taking the issue of jurisdiction after the close of pleadings, is misplaced and based on a misconception.

For the above reasons, I agree with my learned brother, Belgore, JSC that this appeal is completely without merit. It is hereby dismissed with N1,000 costs against the plaintiffs.

 

Wali, JSC:- I have been privileged to read in draft, the judgment of my learned brother, Belgore, JSC. I entirely agree with his reasons for dismissing the appeal, which I hereby adopt as mine. For those reasons, I also dismiss this appeal, as it lacks merit.

The Ruling of the learned Judge of the Federal High Court, sitting in Benin and his subsequent exercise of the powers conferred on him by Section 22(2) of the Federal High Court Act, 1973 to transfer the suit to the then High Court of Bendel State for trial, which was affirmed by the Court of Appeal, is hereby further confirmed.

The respondent is awarded N1,000 costs in this appeal.

 

Kutigi, JSC:- I have had the privilege of reading in advance the lead judgment just delivered by my learned brother Belgore, JSC and agree with him that this appeal should be dismissed with costs as assessed.

Appeal dismissed