3PLR – BRAWAL SHIPPING (NIGERIA) LIMITED V. APHRODITE (ENT.) NIGERIA LIMITED
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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BRAWAL SHIPPING (NIGERIA) LIMITED
V.
APHRODITE (ENT.) NIGERIA LIMITED
COURT OF APPEAL, (BENIN DIVISION)
CA/B/49M/200 1
THURSDAY, 25TH MARCH, 2004
3PLR/2004/28 (HL)
BEFORE THEIR LORDSHIPS
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J .C.A. (Presided and Read the Leading Judgment)
PATRICK IBE AMAIZU, J.C.A.
AMINA ADAMU AUGIE, J.C.A.
REPRESENTATION
Femi Atoyebi, SAN – For the Appellant
- C. Odoh, ESQ. – For the Respondent
MAIN ISSUES
ADMIRALTY AND MARITIME/SHIPPING:- Admiralty jurisdiction of the Federal High Court – Extent of – Whether extends to cargo that arrived or is already discharged in Nigeria
PRACTICE AND PROCEDURE – APPEAL – Issues on appeal- Issue not raised by grounds of appeal – Whether appellate court can determine.
PRACTICE AND PROCEDURE – APPEAL – Right of appeal- Exercise of-Whether can constitute abuse of court process.
PRACTICE AND PROCEDURE – COURT – Abuse of court process – Right of appeal- Exercise of-Whether can constitute abuse of court process.
PRACTICE AND PROCEDURE – COURT – Abuse of court process – What constitutes – Relevant considerations for determining.
PRACTICE AND PROCEDURE – COURT – Federal High Court – Admiralty jurisdiction of-Extent of-Whether extends to cargo that arrived or already discharged in Nigeria.
MAIN JUDGEMENT
MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment):
The respondent, who was the plaintiff, by a motion ex parte dated 15th day of February, 2001 prayed the lower court for the following orders: –
(1) An order for leave to issue and serve the writ of summons formulated and attached to the affidavit in support of this application as exhibit’ A’ 019 on the first defendant/respondent at No. 54 the Barrough NW4 4 AN London, United Kingdom outside the jurisdiction of this court or through its agent in Nigeria.
(2) An order to serve the said writ of summons on issue and all other processes in this suit on the 1st defendant/respondent through Mr. Alex Ufomadu of Nos. 41 – 45 Ozunta Street, Umuahia, Abia State Nigeria, being the appointed representative of the 1st defendant in Nigeria by sending these through courier service and deeming the filing of proof of service from the courier company as proper proof of service on the 1st defendant.
(3) An order directing the assistant chief registrar of this Honourable Court to take possession of the container No. SLBN 2255840 currently in the premises/warehouse of the 2nd defendant being the agent of the 1st defendant/respondent in old port, Warri and to sell the contents in the presence of the plaintiff and the 2nd defendant or their agents and to pay the proceeds thereof into an interest-yielding bank account, pending the hearing and determination of the motion to be filed in this case.
Or alternatively
Compelling the 2nd defendant/respondent to deliver to the plaintiff/appellant the said container No. SLBN 2255840 currently in possession of the 2nd defendant and for the contents to be sold by the plaintiff in the presence and supervision of the 2nd defendant/ respondent or its agents and the Assistant Chief Registrar/Senior Registrar of this Honourable Court while the plaintiff undertakes to indemnify the 2nd defendant/respondent to the extent of the proceeds of the sale of the contents of the container at the end of the case, the plaintiff’s case is adjudged frivolous.”
The lower court upon hearing S. C. Odoh, Esq. granted these prayers on the following terms: –
“Order as prayed.
(1) Leave is granted to issue and serve the writ of summons out of jurisdiction of this court and also grants substituted service of summons and all court processes on the defendants through their agent Mr. Alex Ufomadu of Nos. 41 – 45 Ozunta Street, Umuahia, Abia State Nigeria.
(2) The 2nd defendant/respondent is ordered to deliver to the plaintiff/applicant who shall sell the contents of the same container, the contents being perishable commodities in the presence and supervision of the 2nd defendant or its agents and the Senior Registrar of the Isiokolo High Court and the plaintiff/applicant shall file an indemnity in damages within seven days from today if this action turns out to be a failure. The motion on notice is fixed for 5/3/2001.
The appellant in this case, (1st defendant/respondent) on the 22/2/2001 filed a motion on notice, in which he prayed the court for the following orders: – .
“( 1) An order setting aside the order of this Honourable Court made in this suit on the 15th day of February, 2001 on the grounds of want of jurisdiction, abuse of court’s processes and/or misrepresentation of facts.
(2) An order of this Honourable Court setting aside the purported Writ of summons issued in this case.
(3) An order setting aside the notice of attachment dated 19/2/2001 and filed the same day in respect of this suit.
(4) An order staying all further execution of the orders dated 15/2/2001 made on this suit by this Honourable Court.
(5) An order striking out the entire suit on the ground of jurisdiction and an abuse of the court’s process.”
The appellant had, in addition, filed a notice of appeal on 16/3/2001, in which he challenged the orders made ex parte by the trial court. The grounds of appeal shorn of their particulars are herewith reproduced.
(1) The learned trial Judge erred in law when he assumed jurisdiction to entertain and determine the suit over which he apparently lacks jurisdiction.
(2) The learned trial Judge erred in law in making an interim order ex parte that has the effect of deciding once and for all the real questions between the parties in this matter.
(3) The learned trial Judge erred in law when he made a final order compelling the appellant to release the cargo of textile materials to the respondent without giving the said appellant the opportunity of being heard thereby denying them of their fundamental right to fair hearing.”
It is necessary, before I proceed further, to point out at this juncture that before the respondent in this appeal commenced this action at the court below, he had earlier filed similar case over the same subject with the same parties before the Federal High Court, Benin in suit No. FHC/B/CS/585/99, and on the 22/11/99, the Federal High Court Judge S. J. Adah held as follows: –
“Having come this far, and from all that I have said in this case, the proper orders to make in this case are as follows:-
(1) The claim against the 2nd defendant is struck out it being in competent for lack of capacity on the part of the plaintiff to bring and maintain the action against the 2nd defendant.
(2) Flowing from this therefore the order of interim injunction given against the 2nd defendant on (I 28/7/99 is hereby discharged.
(3) The plaintiff’s claim for the reliefs 2, 3,4,5 and 6 having failed against the 1st defendant is hereby dismissed.
(4) The claim of the plaintiff for relief No.1 succeeds in part and I declare that container No. SBLU 226438 as per bill of lading No. 2003 of 21/03/99 containing 225 bale of assorted textile/ trimmings delivered to the plaintiff at Warri Nigeria do not conform with contract specifications detailed in the proforma invoice.”
As against the above judgment the respondent herein appealed to this court in suit No. CA/B/280/99. This appeal has however been abandoned.
In addition, the appellant’s motion on notice whose prayer were set out above was not heard for reasons not clearly stated in the record of proceedings filed, hence he had decided to pursue this appeal. Is this sharp practice or mild innocent one? I say no more on this.
In accordance with the rules of this court, both parties filed and exchanged their briefs of argument. The appellant in its brief of argument dated 19/3/2001 and filed on the 23/4/2002 formulated two issues for determination thus: –
“1. Whether the learned trial Judge has jurisdiction to entertain the plaintiff’s (respondent herein) claim as constituted before him, being an admiralty matter cognizable only by the Federal High Court, Benin and judgment given against the respondent and in respect of which there is a pending appeal before this Honourable Court.” (Ground 1)
Alternatively Issue 2
Was the learned trial Judge right in making our order ex-parte that has the effect of deciding once and for all the real questions in controversy between the parties, particularly when the appellant was never heard or given an opportunity of being heard in the matter.” (Grounds 2 & 3).
Whilst the respondent in his brief of argument dated 26/4/2003 which was deemed filed on 07/04/2003, formulated equally two issues for our consideration Thus: –
“(i) Whether on the authorities of
(a) Texaco Overseas Petroleum Un’ Ltd. v. Pedmar Limited (2002) 13 NWLR (Pt. 785) 526, (2002) FWLR (Pt. 126) 885.
(b) Petrojessica Enterprises Limited v. Leventis Technical Company Limited (1992) 5 NWLR (Pt. 244) 675.
(c) Ukunano v. Ikeregbe (2003) FWLR (Pt.148); vis-a-vis the judgment of the Hon. Justice S. J. Adah in suit No. FHC/B/CS/585/99 Aphrodite (Ent.) (Nig.) Ltd. v. Unique International Trading Ltd. & Anor. delivered on the 22/11/99 in respect of the subject-matter of this appeal, the learned trial Judge has no jurisdiction to entertain the plaintiff/respondent’s claim as constituted in the lower court; and whether a plea of res judicata could be sustained on a judgment delivered per incuriam which is nullity.
(ii) Whether the ex parte order made by the learned trial Judge on the 15/02/2001 is not a discretionary relief granted to preserve the res, which the defendant/ appellant can only apply to set aside by way of motion on notice in the lower court and not by way of appeal. The respondent, with the leave of this court, raised a preliminary objection to the appeal being incompetent as it amounts to an abuse of legal/court process as follows: –
“(a) Pursuant to grounds 1,2 and 3 of the appellant’s grounds of appeal the relief’s sought thereof contained at page 45 of the record of appeal are similar/in pari materia with the relieves sought on a motion on notice dated 21/02/2001 and filed on 22/02/2001 pending at the court below at the instance of the defendant/appellant.
(b) Without disposing off the said motion on notice contained on pages 1 to 13 of the additional record of appeal filed by the appellant on the 22/02/2001, the defendants/appellant filed a notice and grounds of appeal on the 27/02/2001 seeking similar relief.”
Relying on these grounds the respondent submitted that this appeal amounts to an abuse of courts process. He relied on the cases of Opekun v. Sadiq & 4 Ors. (2003) 5 NWLR (Pt.814) 475, (2003) FWLR (Pt. 150) 1654 at 1661, ratios 1,2 and 3; Ministerfor Works & Housing v. Tomas (Nig.) Ltd. (2002) 2 NWLR (Pt.752) 740, (2002) FWLR (Pt. 124) 456/482 ratio 6 where Musdapher, JCA (as he then was) has this to say at page 785 paragraphs D – G:-:
“The law is well settled that it is prima facie vexatious and oppressive to take two concurrent actions in the courts for the same relief. See Morgan v. W.A.A. & Engineering Company Limited (1971) 1 NMLR 219.
Instituting a multiplicity of actions on the same subject-matter against the same opponent on the same issue is an abuse of the process of the court. See Kotoye v. Saraki (1992) 9 NWLR (Pt.264) 156. Every court must be ready to prevent the improper use of its machinery as a means of vexation and oppression in the process of litigation. Indeed, It is an abuse of process of the court for one party to litigate in two courts simultaneously over an issue against an opponent. See Ode v. Balogun (1999) 10 NWLR (Pt. 622) 214. The abuse of the process of the court is a term generally applied to a proceeding which is wanting and oppressive. Abuse of process can also mean abuse of the legal procedure or improper use of the legal process.
It always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system of administration of justice. See also C.B.N v. Ahmed (2001) 11 NWLR (Pt. 724) 369/391. Olutinrin v. Agaka (1998) 6 NWLR (Pt.554) 366 (sic).”
In resolving this issue, I wish to visit the recent decision of theSupreme Court of Nigeria in the case of Central bank of Nigeria v.Ahmed (2001) 11 NWLR (Pt. 724) 369, (2001) 5 SCNJ 307 at page 324, where Ejiwunmi, JSC stating the various categories of cases that may amount to an abuse of court’s process, and held as follows:-
“In my respected view, the authorities envisaged a situation where the erring party was re-opening issues already closed by the decision of the court, and or generally pursuing the other party with multifarious actions in respect of the same subject-matter to the annoyance of the other party. True enough it is a matter of concern for the respondents to find by this application that the applicant is now seeking to avoid the order of the lower court. But it must also be borne in mind that the applicant has not been shown to have acted outside its constitutional right of appeal against an unfavorable decision. It is not in dispute that the applicant had applied to the court below. It is my respectful view that the conduct of the applicant in that regard cannot said to come within the purview of the kind of act that ought to be classified as an abuse of the process of court.”
Also, His Lordship, Karibi – Whyte, JSC in the case of Saraki v.Kotoye (1992) 9 NWLR (Pt. 264) 156 at 189 put the legal position succinctly as follows:-
“I should not be taken as saying that the improper exercise of a right of action to the prejudice of the administration of justice is permissible. I have quoted the above passage to illustrate the general principles that a proper exercise of a constitutional right of appeal as was done in the instant case which was not intended to harass, irritate, annoy or interfere with the course of justice, but aims at protecting the right in the litigation of the party exercising his constitutional right cannot in my respectful view be regarded as reckless or frivolous so as to constitute an abuse of the judicial process.”
In the case of Okafor v. A.-G,’ Anambra State (1991) 6 NWLR (Pt. 200) 659 at 681, Karibi-Whyte, JSC said: –
“I venture to state quite concisely and clearly that an abuse of the process of the court is only possible by improper use of the issue of the judicial process or process already issued to the irritation and annoyance of the opponent It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the court. But this is so only where the action is between the same parties with respect to the same subject-matter. The court has a duty in such a situation to interfere to stop an abuse of its process. See Okorodudu v. Okoromadu (1977) 3 S.C. 21.”
In the instant case, it is not in dispute that the appellant filed a motion to set aside the proceedings before the lower court. However, due to the inability of the lower court to hear and determine the motion he had elected to exercise his constitutional right of appeal over the decision of the lower court. It has not been shown by the respondent that this appeal was filed to irritate, annoy or embarrass him or that it was filed mala fide. Hence, applying the principles in the decisions cited above, it is my respectful view that this appeal does not constitute an abuse of court’s process. Consequently, and with due respect to the learned counsel for the respondent I hold that the preliminary objection is misconceived same is hereby dismissed.
In the determination of the substantive appeal, I prefer the issues for determination as formulated by the appellant as they are more encompassing. I will adopt same in considering this appeal. Learned counsel for the appellant A. Olorunfemi submitted in his brief that the lower court has no jurisdiction to hear and determine this matter. He premised his contention on two grounds: –
(1) the subject matter involves the issue of admiralty which is exclusively within the jurisdiction of the Federal High Court;
(2) since the issue, in this case, has been determined by the Federal High Court between the same parties over the same subject-matter, the trial court no longer have jurisdiction to hear this case.
On the first ground, the learned counsel referred to sections 1 and 2 of the Admiralty Jurisdiction Decree (A.J.D.) No. 59 of 1991 and submitted that the facts averred in paragraphs 4, 12, 13, 14, 15 and 18 of the affidavit in support of the ex parte application are either purely shipping or connected with it. On the 2nd ground, the learned counsel submitted that this case had earlier been adjudicated upon by the Federal High Court, Benin and after a full hearing the respondent’s case was partly dismissed and partly struck out. On 22/11/99 as a result of which the respondent had appealed to this court. He therefore submitted that the action constitutes an abuse of court’s process, hence the court is incompetent to hear and determine it.
On the other hand, the learned counsel for the respondent S. C. Odoh, Esq., submitted that the trial court has jurisdiction to hear this matter. He further submitted that it is the law binding on this Honourable Court that the 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. He cited the case of Petrojessica Enterprises Limited v. Leventis Technical Co. Limited (1992) 5 NWLR (Pt. 244) 675.
On the other ground, he submitted that the judgment of the Federal High Court, Benin was decided without jurisdiction hence it was null and void. He therefore submitted that this court has the power to call for the record of the Federal High Court, Benin and review same. He referred to the provisions of Order 3 rule 23( 1), (2) of the rules of this court. He finally submitted that since the judgment is therefore null and void and it cannot operate as res judicata.
On the first ground of jurisdiction, as argued above, it is not in dispute that the goods in question have been discharged and kept in custody of the appellant or at the point of the destination of the cargo.
In the instant case, Warn. This singular factor has completely taken the subject-matter in this case out of the provisions of the Admiralty jurisdiction of the Federal High Court. This point has been restated in the case of Texaco Overseas Petroleum Un’ Ltd. v. Pedmar Limited (2002) 13 NWLR (Pt. 785) 526 at 543, (2002) FWLR (Pt. 126) 955 at 890 where it was held as follows: –
“The admiralty jurisdiction of the Federal High Court cannot be invoked once the goods carried by a ship have been discharged on the habour or delivered to the point of destination of the cargo. For admiralty to arise the cargo or goods must still be in the vessel.”
For the above reasons, I hold that the lower court has jurisdiction to try this case.
On the other hand, what is the legal interpretation of the judgment of the Federal High Court, Benin which was given between the same parties on the same subject-matter and still subsisting on the case later commenced before the lower court. It must be pointed out at this juncture that the judgment of the Federal High Court, Benin is not before this court in this case. The validity or otherwise of that judgment is not in issue in this case as none of the grounds of appeal raised such issue in this case. It will therefore be an exercise in futility in pronouncing on it. This court has no jurisdiction to grant a substantial relief not specifically asked for and relating on it arising for determination from a ground of appeal. Such a substantial relief as the respondent is asking us to do on this case i.e. to review the Federal High Court, Benin judgment cannot be granted as a consequential order either. See Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 514, (1992) 6 SCNJ 162. The provisions of Order 3 rule 23(1)(2) of the Court of Appeal rules could only be utilized to amend order of lower court to achieve the end of justice on a matter in which there is a proper appeal before this court. See Chief Asaba Emiri v. Imieyeh (1999) 4 NWLR (Pt. 599) 442; (1999) 4 SCNJ 1.
The Supreme Court per Kalgo, JSC on page 22 says: –
“It seems to me therefore that the Court of Appeal has full powers and jurisdiction to amend any judgment or order of the trial High Court on an appeal before it whether the amendment to be made arises from clerical error or a mere “slip” or not, provided that it was supported by evidence on record and was done to settle matters in controversy between the parties and to avoid multiplicity of proceedings and do substantial justice between the parties…”
With due respect, I must state I bow in submission to the above statement of one of our law Lords.
It is my humble view therefore that since this court is not determining an appeal arising from the judgment of the Federal High Court, Benin, it has no jurisdiction to pronounce on its validity or to review it. Consequently, the judgment is still subsisting. In a case where a counsel is of a strong view that a lower court acted without jurisdiction which in any event renders its judgment null and void, the party contending that the court lacks jurisdiction could either: –
(a) Apply to the same court to set aside the said judgment for lack of jurisdiction, or
(b) to appeal to this court to have the judgment set aside. I think the legal position has been well laid in the case of Babatunde v. Olatunji (2000) 2 NWLR (Pt. 646) 557; (2000) 2 SCNJ 26/33 – 34 per Katsina-Alu, JSC as follows: –
“I think the option open to a person against whom an order was made or a judgment given is plain. He should apply to the court to discharge the order or appeal against the judgment that it maybe set aside as the case may be. This i~ a good sense for as long as the order or judgment existed it must not be disobeyed. A judgment remains valid and binding, even where the person affected by it believes that it is void until it is set aside by a court of competent jurisdiction”.
The position clearly is this. That a person who knows of a judgment, whether null or void given against him by a court of competent jurisdiction cannot be permitted to disobey it. His unqualified obligation is to obey it unless and until that judgment has been set aside. See Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382, Hadkinson v. Hadkinson (1952) 2 All ER 567. It is settled practice that there is a presumption of correctness in favour of a court’s judgment. Unless and until that presumption is rebutted and the judgment set aside, it subsists and must be obeyed. It cannot for any reason under our law be ignored.” See also Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt. 81) 129; and Ibe v. Onuorah (1996) 9 NWLR (Pt. 474) 624; (1996) 12 SCNJ 128.
By the principles of stare decisis this court being penultimate court must be bound by the decisions of the Supreme Court.
That being the case, and applying these principles to the present case it is my considered view that the judgment of the Federal High Court, Benin dated 22/11/99 still subsist. It does not lie in the mouth of the respondent to say that the said judgment is null and void without taking step to properly have it set aside. It follows therefore that since the Federal High Court, Benin decided this case between the same parties and on the same subject, the subsequent commencement of this suit at the Delta State High Court, amounts to an abuse of courts process which renders the action incompetent. See Saraki v. Kotoye supra at 188 -189, Amaefule v. The State (1988) 2 NWLR (Pt. 75) 156/177; and CBN v. Ahmed (supra). Consequently, I hereby make an order striking out this case for lack of competency. I would have ended this judgment on this point, but I wish to comment on the proprietary of the interim order made by the lower court. It is a trite law that interim order is granted in real cases of urgency. It is for a situation of a real emergency to preserve and protect the rights of the parties before the court from destruction by either of the parties.
See Kotoye v. Central Bank a/Nigeria (1989) 1 NWLR (Pt. 98) 419. It merely leaves matters at status quo and the court does not, at that stage have to decide any contentious issues before granting it.
That is the extent to which a court can go. See 7-Up Bottling Coy Ltd. & Others v. Abiola and Sons (Nig.) Ltd. (1995) 3 NWLR (Pt. 383) 257; (1995) 3 SCNJ 37. In the instant case, I find it difficult to see any real case of urgency in this case. Paragraphs 8, 9, 10 and 11 of the affidavit in support of the ex parte application show that the materials or grounds being sought to protect arrived Nigeria since 1999, while this application was brought in February, 2001 for its protection. This is a real case of imaginary urgency, created by the respondent itself. I have no doubt in my mind that this is a case in which the lower court ought not to exercise its discretion in favour of the respondent. It is a patent case of an abuse of the judicial process, which should no longer be tolerated if the integrity and impartiality of judiciary is to be restored, sustained and maintained.
The result of all what I have been laboring to state is that this appeal succeeds and is allowed. Consequently, I order as follows: –
(a) The ex parte order dished out by the trial court dated 15/2/2001 cannot stand and is hereby set aside.
(b) The respondent is hereby compelled to pay the proceeds of sale of the cargo into the lower court for onward transmission or payment to the appellant herein.
(c) An order striking out the suit before lower court in its entirety is hereby granted.
(d) The appellant herein is entitled to some costs which I assessed at five thousand Naira (N5,000.00).
AMAIZU, J.C.A.:
I have had the benefit of reading in draft the lead judgment of my learned brother Muntaka- Coomassie, JCA. I agree with his reasoning and conclusion that there are merits in this appeal which should consequently be allowed.
In my view, from the history and facts of the case, the lower court was in a hurry in granting the ex parte order.
For the reasons contained in the said lead judgment of my learned brother Muntaka-Coomassie, J.C.A, I too allow the appeal. I abide by the consequential orders including the order on costs made in the said lead judgment.
AUGIE, J.C.A.:
I have read before now the lead Judgment just delivered by my learned brother, Muntaka-Coomassie, JCA and I agree with his reasoning and conclusion. The multiplicity of actions on the same matter constitutes abuse of the process of the court where the action is between the same parties with respect to the same subject-matter, and the court has a duty in such a situation to interfere to stop an abuse of its process. See Okafor v. A.-G, Anambra State (1991) 6 NWLR (Pt.200) 659. What is more, to institute an action during the pendency of another one claiming the same reliefs amounts to an abuse of process of court. And it does not matter whether the matter is on appeal or not. As long as the previous action has not been finally decided, the present action constitutes an abuse of process of court. See Nweke v. Udobi (2001) 5. NWLR (Pt. 706) 445. It is for this and the other reasons set out in the lead judgment that I too allow the appeal. I also abide by the consequential orders in the lead judgment, including the order as to costs.
Appeal allowed.
