3PLR – ALEXANDER MARINE MANAGEMENT V. KODA INTERNATIONAL LTD
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ALEXANDER MARINE MANAGEMENT
V.
KODA INTERNATIONAL LTD
COURT OF APPEAL
3PLR/1999/19 (CA)
BEFORE THEIR LORDSHIPS
Pats-Acholonu JCA
Musdapher and
Opene JJCA
REPRESENTATION
Dr. Atake – for the Appellants
Alaba Okupe, Esq. – for the Respondents.
-
Admiralty action (Right of appeal)
· Harbour dues and rates
· Competence of court
· Injunctive orders
· Ex-parte orders
· Preservative orders
· Stay of execution (Purpose of}
· Interlocutory application
{Facts}
The 3rd appellant vessel arrived Nigeria and started discharging its cargo but the cargo receivers obtained an order of interim arrest of the 3rd appellant for the value of 58.0 metric tons of shortlanded cargo of Brazilian white sugar shipped on board from Brazil to Nigeria and for damages.
While the said order of arrest was still in force, the respondent who was the landing agent to the 3rd appellant, sent a bill to the appellants for the sum of $152,895.30 as anchorage and berthage dues incurred by the 3rd appellant during the period of her arrest which was to be paid to the Nigerian Ports
Plc.
Respondent and the Nigerian Ports Plc refused to allow 3rd appellant to sail.
Appellants filed an action against the respondent in the Federal High Court claiming the money paid as port charges, interest thereon and costs of the action.
They also sought ex parte an order restraining the respondent or any bank or financial institution from utilizing the money paid as port charge, and also to compel the respondent to pay same into the court.
The court granted the ex parte application.
Respondent sought the discharge or stay of the order and the court ordered its stay.
The appellant was dissatisfied and appealed.
{Issue}
Whether the federal High Court properly exercised its discretion in staying its earlier decision made ex parte restraining the respondent from utilising the money paid by the appellant in respect of a ship under arrest
{Held – Summary}
Unanimously allowing the appeal
- Ex parte orders – Appropriateness of Courts should not make ex parte orders which are far reaching and where there is no real urgency.
If It is absolutely necessary that such an order should be made, various matters of empirical nature shall be taken into consideration as the justice of the matter dictates. It seeks to and always keeps the other party from being heard. It is a heinous crime against justice if it lasts more than a few days, and courts should not shy away from giving a second look at an ex parte order when they have the chance to look at it.
- Interlocutory orders – Court must avoid pronouncing on Substantive matter. It is not proper for a trial court to prejudge issues in the substantive case in the process of deciding an interlocutory application. In other words, the trial court must be cautions and avoid comments on the main issues in the substantive matter.
- Injunctive orders and preservative order – Nature of An injunctive order is peremptory in the sense that it conveys a commanding or mandatory
instruction by way of order from the court to the party not to perform the particular act or to do anything that will be prejudicial to the re or subject matter of the litigation. It is prohibitive or forbidding order made against a party, who can disobey the order on pain of punishment. A preservative order conveys a similar legal impact and purport as an injunctive order. A preservative order is an order that the res or the subject matter of the litigation be preserved pending the determination of the case. By a preservative order the res or subject matter is kept safe or retained or maintained in safety in a particular place while the litigation on it is pending.
- Judgement on the merits – Meaning of A judgement is on the merits when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgement on the merits is therefore a judgement that determines, on an issue either law or fact, which party is right.
- Harbour dues and rates – When charged By virtue of section 37 of the Nigerian Ports Decree No. 74 of 1993, the Nigerian Ports Plc., referred to in the section as the company, may charge such harbour dues and rates it may deem fit on every ship entering or leaving a port or the approach to a port in respect of the passengers, animals or cargo carried on the ship.
- Competency of court to adjudicate on matter – How determined A court is competent to adjudicate on a matter when the following conditions are satisfied:
(a) If the court is properly constituted with respect to the members and qualification of its members;
(b) The subject matter of the action is within the court’s jurisdiction;
(c) The action is initiated by due process of law; and
(d) any condition precedent to the exercise of its jurisdiction has been fulfilled.
{Held – Lead Judgement} Delivered by Pats-Acholonu JCA
The question to be resolved by this court is whether the court below exercised its discretion judicially and judiciously when it merely granted a stay of the ex parte order made on 26/9/96 instead of discharging the order in respect of prior payment of fees made by the appellants when the ship “the Dancing Sister”,
was under arrest. Facts being the fountain head of law and the spring board on which analysis of legal and judicial appraisal and consideration are made and premised, I shall set down the claim of the plaintiff appellants.
“1. The sum of US$173,450.82 (One hundred and seventy-three thousand, four hundred and fifty United state dollars, eighty-two cents) being port charges unlawfully paid and collected by the defendants on behalf of the Nigerian Ports Plc in respect of the MV “Dancing Sister” whilst under arrest between the 7th April 1995 and 25 April 1995.
- Interest on the said sum of US$173,450.82 (one hundred and seventy-three thousand, four hundred and fifty United States dollars, eighty-two cents) at the rate of 15% per annum from the date when the sum was paid until same is finally liquidated.
- Cost of this action.”
On the 6th November 1995, the plaintiffs/appellants brought a motion ex parte:
- Restraining the defendants, their representatives, agents’ servants or any other person, bank or financial institution from utilising the plaintiffs’ US$173,450.82 being port charges paid by the plaintiffs to the defendants/respondents London account in respect of the ‘MV’ Dancing Sister whilst under arrest, pending the determination of the motion on notice.
- Compelling the defendant, their representatives, agents or servants to pay into court the total sum of US$173,450,82 being moneys unlawfully collected by the as port charges from the plaintiffs, pending the determination of the substantive suit.”
On 26/6/96, the federal High court presided by Ukeje J. granted the ex parte application along the lines of the prayer made. The defendant/respondent peeved no doubt by the order, moved the court by an application dated 24/11/96 to discharge that order or say the order made, as it was made, (according to the respondent) on a misrepresentation of the law. In her ruling after arguments have been taken on both sides the court below after carefully examining the provisions of section 37 of Ports Act 1990 and other 8 rule (2) of the Admiralty Proceedings Rules made pursuant to Admiralty Proceedings act or Decree states as follows:
It is my considered view that there is an urgent need by the appropriate authority to reconcile section 37 of the Nigeria Ports decree and the provisions in the Admiralty Jurisdiction decree (not rules) regarding payment of port dues by vessels under arrest on the orders of a court.
In the interim, the provisions of section 37 prevails and such vessels pay port dues.
(1) Following on the finding in para 1 supra, I find without any iota of doubt, that the interim order of this court made on 29th January 1996 was obtained by virtue of the misrepresentation of the law.”
Dissatisfied with the pronouncement of the court below the appellants filed one ground of appeal from which their framed one issue equally adopted by the respondent., but the respondent raised an objection that since the exercise of discretion is always hinged on mixed law and fact the appellant should have sought the leave of the court. The sole issue made out by the appellant is “Did the plaintiff/appellants misrepresent the law to obtain the interim order dated 15th Nov. 1995 having regard to the provision in order 8 rule (2)(I) of the Admiralty Jurisdiction Procedure rules which states that: whilst under arrest a vessel shall not pay port charges or other dues.”
I must first resolve the issue as to whether the appeal is properly before the court in order words whether the court can exercise jurisdiction. When is a court competent to adjudicate on a matter? The criteria built up over the years and now settled are the following:
(a) If it is properly constituted with respect to the members and qualification of its members.
(b) The subject matter of the action is within its jurisdiction
(c) The action is initiated by due process of law and
(d) Any condition precedent to the exercise of its jurisdiction has been fulfilled. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Erhunmunse v. Ehanre (1998) 10 NWLR (Pt. 568) p. 53.
Now section 220 (1)(g) of the 1979 Constitution reads as follows:
“An appeal shall lie from the decision of a High Court to the federal Court of Appeal as of right in the following cases.
(g) decisions made or given by the High court
(iv) in the case of decree nisi in a matrimonial cause or a decision in an admiralty action determining liability.”
At the conclusive part of her ruling the learned trial Judge stated thus:
“In the interim the provisions of sections 37 prevails and such vessels pay port dues.”
By this the court below is understood to the saying that there is no conflict between Order 8 rule(2) and section 37 of Ports Act and therefore the appellants even if their “The dancing Sister” is under arrest on the order of the court, is liable to pay dues.
The word liability is derived from the adjective word liable. It connotes or denotes legally bound as to make good any loss or damages. See Webster’s Unabridged Dictionary. Blackstone Law Dictionary defines the term thus:
“Almost every character of hazard or responsibility, absolute, contingent or likely – all character of debts and obligations either absolute or contingent express or implied condition which creates a duty to perform an act immediately or in the future duty bound to pay money or perform some other service.”
Now the order made on the ex parte application is a restraining order and wears a garb or clothed with the characterisation of an injunctive order. The order ex parte reads as follows:
“The defendants, their representatives, agents, servants, their banks or other financial institution acting on their behalf are hereby restrained from utilising the plaintiffs US$173,450.82 (One hundred and seventy three thousand four hundred and fifty dollars and eighty-two cents) being port charges paid by the plaintiffs to the 1st defendant into the 1st defendant in London in respect of the vessel of the “Dancing Sister” whilst under arrest pending the determination of the motion on notice.”
There was no appeal against the order but there was an application to set it aside or at worst to stay. In the exercise of its discretion the court below decided that there has been misrepresentation of the law but preferring not to set aside the order, opted to have it stayed. The premise for the order of stay is (a) there was misrepresentation of the law by the appellants and (b) the appellants are liable to pay the port fees. The appellants it seems to me are complaining against the interpretation placed by the court which so affected its mind as to make the order. The preservative order derived or had its offspring from or traceable to the application of respondent which the court had stayed due to some reasons stated in her decision. In Emerah v. Chiekwe (1996) 7 NWLR (Pt. 462) 536 at 547.
It was held as follows:
“An injunctive order is preemptory in the sense that it conveys a commanding or mandatory instruction by way of order from the court to the party not to perform the particular act or do anything that will be prejudicial to the res or subject matter of the litigation. It is, in short, a prohibitive or forbidding order made against a party, who can only disobey the order on pain of punishment. A preservative order conveys similar legal impact and purport. A preservative order, as the name implies or depicts, is an order that the res or subject matter of the litigation or the thing in the litigation be preserved pending the determination of the case. By a preservative order, the res or subject matter is kept safe or retained or maintained in safety in a particular place while the litigation on it is on. By the order neither the plaintiff nor the defendant can have access to or use of it during the pendency of the case. The use of the thing is closed or forbidden to the parties for the time being. Therefore like injunction, a preservative order is also peremptory in nature and content.
In Oluwa Glass Company Ltd. V. Ehinlanwo (1990) 7 NWLR (Pt. 160) at 29, Ejiwunmi JCA said:
“The first observation that I then wish to make with regard to Order 33 is that the classification of interlocutory injunctions and interim orders for the preservation of properties under Order 33 was to emphasise the fact that these orders form a genre of each other. It is also my view that the classification is proper having regard to the fact that the two orders are all aimed at ensuring that properties which form the subject matter of a suit could be subjected to the protective orders of the courts.”
As restraint is an inception of an order of injunction would the appellant need the leave of the court? I very much doubt it. I am not overly enthused by the argument of the learned counsel for the respondent in this direction.
On another point the court below did emphatically state that the appellants are liable to pay the Port fees.
This case is an admiralty matter. There was something inelegant about the absoluteness of the language use by the learned trial court, and it appears to leave nothing to be determined after all at the main hearing. I feel some form of uneasiness by the firm and certain language used by the court below. To the extent that my understanding of what happened below for which appeal is lodge is based, on the law (as the court below saw it) to wit, that there was a liability would there be any need to apply for leave. I must stress that before a matter is said to be one of mixed law and fact, it is essential that all the surrounding factors impinging on the matter be scrupulously and inscrutably analysed and weighed. It is not enough to label ground of appeal as one of mixed law and fact without examining the matter thoroughly. Of course it must be admitted that sometimes it is so hard to decipher a ground of law and state categorically under what column it is. The preliminary objection is overruled.
The matter that gave rise to this appeal is the staying order by the court below in respect of the ex parte order made earlier on. Our courts have been warned repeatedly against making ex parte orders which are far reaching and where there is no real urgency. If it is absolutely necessary that it should be made, various matters of empirical nature shall be taken into consideration as the justice of the matter dictates.
In so far as it affects the other party not in court, it wreaks violence to the spirit of section 33 of the Constitution. It seeks to and always keeps the other party from being heard. It is a heinous crime against justice if it lasts more than a few days, and Judges should not shy away from giving a second look at an order ex parte when they have the chance to look at it.
In its application in the court below the respondent applied for setting aside an order obtained at its back or in the alternative to have it stayed. What would a stay involve? The order ex parte was to restrain the respondent from utilizing the money paid by the appellant. The order for stay was made the court had expressed the opinion and decides that the ex parte order was made on the misrepresentation of law. By this the court inferred that the counsel for the appellants in the application for ex parte order in the first instance did not make any reference to the provision of section 37 of the Port Act. It was after she had
dutifully compared the provision 37 of the Act and Order 8(2) of the Admiralty Proceeding Rules that the learned trial Judge came to the conclusion that there was misrepresentation stating that the provision of section 37 would override the provision of the order – the being a mere subsidiary legislation while the other is a substantive law. Now in their claims as stated above the appellants are asking the court to make an order whereby they would be repaid the money they paid in an error and positively under duress when the ship was under arrest. It seems to me that the kernel of the main case is whether the appellant should have paid that money in the first place but having paid it whether they can turn round on appearing to become wise to restraint the utilisation of that money.
This leads to a further consideration as to whether there was not an apparent undue haste to decide unequivocally that the respondents were liable for the payment. One starts wondering what would then be decide in the court.
Section 37 of the Port Act states as follows:
“The company may charge such harbour dues and rates it may deem fit on every ship entering or leaving a port or the approach to a port in respect of the passengers, animals, or cargo carried on the ship.”
Now care must be taken that this matter is not adjudicated to its logical conclusion at a merely interlocutory proceedings stage otherwise we shall do violence to the tenor and intendment of some paragraphs of the pleadings. I hereby set out some of the averments.
- The 3rd plaintiff’s vessel arrived the Nigerian waters on 2 March 1995 (at 0645 hours and berthed at shed 12 Apapa Quays, Apapa on the 17th March (1995) and the Charterers, Cargill Geneva S. A., appointed the defendant as the vessels landing agent during her stay and discharged at the Apapa Port, Lagos.
- The discharge operations of the 13,648,158 metric tons of Brazilian white sugar on board the 3rd plaintiff’s vessel commenced on the 21 March 1995.
- Midstream into the discharge operations, the cargo receivers obtained an order of interim arrest of the 3rd plaintiff’s vessel on the 7 April 1995 in suit No. FHC/L/CS/395/95. “Dancing Sister” AND Anor for the value of 58.9 metric tons of shortlanded cargo of Brazilian white sugar shipped on board the 3rd plaintiff’s vessel from Brazil to Nigeria and for damages. The plaintiffs shall at the trial of this action rely on the said order of arrest.
- It is the plaintiffs case that while the said order of arrest was still in force the defendant sent a bill dated 18 April 1995 to the plaintiffs for the sum of USD152, 895.30 as anchorage and berthage dues incurred by the 3rd plaintiffs vessel for the period 13 April 1005 to 21 April, 1995, during which period she was under arrest and which said sum the defendant claimed is to be paid to the Nigerian Ports Plc as berthage and anchorage dues. The plaintiffs shall at the trial of this action rely on said bill.
- It is the plaintiffs case that the 3rd plaintiffs vessel was fixed for her next hire by the 25 April 1996 when the said order to arrest in the action of the cargo receivers in suit No. FHC/L/CS/395/95 was discharged, but that the defendant and the Nigerian Ports Plc refused to allow it to sail until the confirmation of the sum of N65618.82 was receives by the defendant and Nigerian Ports Plc as berthage and anchorage dues incurred by the 3rd plaintiffs vessel whilst under arrest. The plaintiffs shall at the trial rely on a letter from the defendant to this effect dated the 26th April 1995.
Now it is quite obvious that the central piece of the main case is whether the money paid by the appellants should have been paid, in other words whether they are liable. To my mind the money paid earlier on was cautionary whether or not the appellants are liable and therefore to pay that money. By staying the order ex parte the court below I believe is trying to extricate itself from the unwise step of making the order ex parte as the money has been paid. The preservation of the res is concomitant to adopting a neutral stance of that stage.
If the court had set aside the order the implication is that the demand for payment and subsequent payment was in order notwithstanding the fact that the main case centres on whether or not the money should have been paid in the first place having regards to the operation or Order 8(2) of the Admiralty Proceeding Rules. On the other hand if the court restrains from setting it aside, it can be interpreted to mean that the issue of liability is still to be determined at the trial. Of course one might reason that the court below committed a faux pas when it pronounced the appellants liable and yet stayed the execution of the order earlier on made. As I said before,, learned trial Judge fell into the temptation of jumping the gun by declaring a party liable when that is a matter that should have been determined at the crucial trial.
The purpose of stay is to protect the res at all times. See Makinde and 9 ors v. Akinwale and 7 ors (1995) 6 NWLR (Pt. 399) page 1. At page 127 of the record the court below said: “finally the 1st defendant has made out a case strong enough to move this court to stay its interim order of 29/1/96.” My understanding of the order of the court is that nothing should happen to that money until it is finally determined whether the appellant should have paid that money in the first after the matter has been dealt with in its merit. It is when the parties have led evidence and canvassed the matter assiduously, and energetically each accordingly to the strength of its case and the teeth it put and; that the court deciding finally on the rights of the parties. In the case and the case of Cardoso v. Daniel and ors (1986) 2 NWLR (Pt. 20) p. 1 at 45 Oputa, JSC held:
“A judgement is said to be on the merits when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgement on the merits is therefore a judgement that determines, on an issue either of law or fact, which party is right.”
Reading the brief of the respondent I must confess that sometimes the counsel strayed from the point in question and indulges in diatribe on matters not in contention although I must admit he argued on the issue in question but brought matters not in issue thereby indulged in unnecessary verbiage.
The learned trial judge by at one stage saying that there was nothing contradictory in the language used in section 37 of Ports Act and Order 8(2) of the Admiralty Proceedings Rules and went on later to distinguish and say that section 37 is operative being a statute has made very inconsistent statements
which affect the grammar of law and effectively and unobstructively deciding the case. In that case the best opinion would be to allow the appeal and set aside the order made. By virtue of section 16 of the Court of Appeal Act Cap 75 of the Laws of the Federation 1990 I hereby order that all the orders made by the learned trial court are set aside and all motions still pending before it to be determined by another Judge. Due to the stance of the learned trial Judge this case is remitted to another Judge for hearing because of the finding of liability at this stage inappropriately and inelegantly made by the trial court.
Will refer to: Magnusson v. K. Koiki AND ors (1993) 9 NWLR(Pt.317) 287; (1993)12 SCNJ 114; N.A.B. kotoye v. Mrs. F.M. Saraki AND anor (1994) 7 NWLR (Pt.357)414; (1994) 7-8 SCNJ 524; Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt.216) 124; Ogbonnaya v. Adapalm (Nig.) Ltd. (1993) 5 NWLR (Pt. 292) 147
It cannot be over-emphasised that it is not proper for a trial court to pre-judge issues in the substantive case in the process of deciding an interlocutory application; the trial court must be cautious and avoid comments on the main issues in the substantive matter.
Further there is nothing at all to show for the record of proceedings that the ex-parte order was obtained by the virtue of the misrepresentation of the law. The ruling of the learned trial Judge therefore cannot stand.
Musdapher and Opene JJCA both agreed with the lead judgement.
{Nigerian Cases Referred to}
Cardoso v. daniels (1986) 2 NWLR (Pt. 20) 1
Erhummuninse v. Ehanire (1998) 10 NWLR (Pt. 568) 53
Emerah v. Chiekwe (1996) 7 NWLR (Pt. 462) 536
Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414
Madukolu v. Nkemdilim (1962) 2 SCNLR 341
Magmusson v. Koiki (1993) 9 NWLR (Pt. 317) 287
Makinde v. Akinwale (1995) 6 NWLR (Pt. 399) 1
Ogbonnaya v. Adapalm Ltd (1993) 5 NWLR (Pt. 292) 147
Oluwa Glass v. Ehinlanwo (1990) 7 NWLR (Pt. 160) 14
Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt. 216) 124.
