3PLR – ANASON IBETO INTERNATIONAL AUTO PARTS LTD V. VIMEX IMPORTS-EXPOTS
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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ANASON IBETO INTERNATIONAL AUTO PARTS LTD
V.
VIMEX IMPORTS-EXPOTS
IN THE COURT OF APPEAL
[LAGOS DIVISION]
27TH MARCH
3PLR/2001/56 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS:
GEORGE ADESOLA OGUNTADE J.C.A (Presided and delivered the leading judgment)
CHRISTOPHER MITCHELL CHUKWUMA-ENEH J.C.A
AMIRU SANUSI J.C.A
BETWEEN
1.ANASON IBETO INTERNATIONAL AUTO PARTS LTD.
2.IKECHUKWU IBETO
3.CHINEDU IBETO
AND
VIMEX IMPORTS – EXPORTS
REPRESENTATION
Emeka Ngige, Esq with O.A. Egwuatu for the appellants.
Rotimi Jacobs for the respondent.
MAIN ISSUES
ADMIRALTY – Claim for goods which the defendants were to sell in Nigeria and make payments to the plaintiff abroad through “documentary bills for collection and telex transfers” – whether falls within admiralty jurisdiction of the Federal High Court under section 1(1)(g)(h) and (3) of the Admiralty Jurisdiction Decree No. 59 of 1991.
PRACTICE AND PROCEDURE – JURISDICTION – Jurisdiction of court – whether determined by plaintiff’s claim.
PRACTICE AND PROCEDURE – Court of Appeal holding that State High Court and not Federal High Court has jurisdiction over a matter – proper order for appellate court to make pursuant to section 16 of the Court of Appeal Act 1976 and section 22 of the Federal High Court Act.
GEORGE ADESOLA OGUNTADE, JCA (Delivered the leading judgment):
The appellant were the defendant before the Federal High Court, Lagos and the respondent the plaintiff in suit No. FHC/L/CS/328/98 in which the plaintiff claimed as follows:
“1. The sum of US $154,713.68 or its naira equivalent being that total amount outstanding on various exports of motor spare parts covered by various bills of lading and air way bills supplied by the plaintiff to and received by the defendants during the period of (sic) spanning 23rd August, 1991 to 2nd February, 1992 and payable through documentary bills for collection and telex transfers.
- Interest on the said sum of US $154,713.68 or its naira equivalent at the rate of 21% per annum from 1st March, 1993 until final judgment and thereafter at the rate of 6% per annum until final liquidation.”
The writ of summons was filed with the statement of claim. The defendants were duly served. On 30/11/98, the defendants in reaction to the service upon them of the writ of summons and statement of claim brought an application that the plaintiff’s suit be struck out on the ground that the plaintiffs claims were upon an alleged debt triable by a State High Court and not within the admiralty jurisdiction of the Federal High Court as provided under Decree No. 59 of 1991 or Decree No.107 of 1993.
On 13/1/99 and 24/2/99, the lower court heard argument on the application to strike out plaintiff’s claim. On 5/5/99, the lower court in its ruling held that the claims of the plaintiff fell within the admiralty jurisdiction of the Federal High Court. It accordingly dismissed the defendants application.
Dissatisfied, the defendants before the court below have brought this appeal against it. In the appellant’s brief filed, the issue for determination in the appeal was identified as follows:
“Whether from the claim of the respondent and the averments in its statement of claim, the Federal High Court has jurisdiction under the Admiralty Jurisdiction Decree No.59 of 1991 and other legislation in that regard to entertain the suit or put in another way:
Does the claim of the respondent come within the admiralty jurisdiction of Federal High Court.”
The respondent in its brief adopted the issue as formulated by the appellant. More importantly however, the respondent said at page 1 of its brief:
“The respondent concedes that having regard to the claim of the appellant and the averments in the statement of claim, the Federal High Court has no jurisdiction under the Admiralty Jurisdiction Act No. 59 of 1991 and other legislations in that regard to entertain the suit.”
Notwithstanding the concession by the respondent, I must still consider the merits of the appeal by the appellant. In the paragraphs 6 to 11 of its statement of claim, the plaintiff had averred:
- In pursuance of his employment with the plaintiff, Mr. Vogt at the defendants prompting and invitation, entered into an arrangement whereby the plaintiff would export spare parts to the defendants who would sell same at their prices and remit the invoice price to the plaintiff in Austria.
- Between June, 1987 and April 1990, the plaintiff exported and delivered to the defendants sundry motor vehicle spare parts which the defendant promptly paid for.
- Between 23rd August, 1991 and 2nd February, 1992, the plaintiff exported both by air and sea and supplied to the defendants various motor vehicle spare parts totaling in value the sum of US $271,622.41 (two hundred and seventy one thousand, six hundred and twenty two United State Dollars, and forty one cents). The plaintiff pleads and shall at the trial of this suit rely on the following invoices namely:
(i) Invoice No.90167 dated 15/05/1990 under bill of lading No.06/190/45/004
(ii) Invoice No.90172 dated 25/06/1990 under bill of lading No.06/190/46/007
(iii) Invoice No.92299 dated 03/07/1992 under bill of lading No.QAP108
(iv) Invoice No.92300 dated 15/06/1992 under bill of lading No.4014A
(v) Invoice No.92303 dated 02/07/1992 under bill of lading No.07/512 – Z-D
(vi) Invoice No. 92312 dated 02/09/1992 under bill of lading No.05058
The agreed mode of payment for the aforesaid goods were to be by documentary bills for collection and telex transfers.
- Out of the total invoices value of US$ 271,622.41, the defendants remitted to the plaintiff a total sum of US$98,318.71 as follows:
(i) Invoice No. 90167 – US$74,852.60 out of US$87,657.60
(ii) Invoice No. 92299 – US$7,363.00 out of US$77,737.00
(iii) Invoice No. 92312 – US$16,103.11 out of US$19,419.81 these only in part payment for the goods supplied and received.
- The plaintiff is obliged under the arrangement to pay to the defendants compensation totaling US$1,141.72 on defectively packaged items at the sum of US$17,448.30 on over invoicing on invoice Nos. 90172,92299,92302.
- In consequence of the facts pleaded in paragraphs 8, 9 and 10 hereof, the total outstanding indebtedness of the defendants to the o\plaintiff on the transaction stands at the sum US$154,713.68 which the defendants have failed, refused and neglected to pay despite repeated demands.
Earlier in this judgment, I set out the claims of the plaintiff as put across in its statement of claim. Although the claim which made reference to bills of lading and air way bills would appear to suggest on first appearance to convey that the claims were within the admiralty jurisdiction of the Federal High Court, the averments in the statement of claim reproduced above clearly convey that this was a claim arising from a failure of the defendants to pay for goods which had been forwarded to them by the plaintiff. Section 1(1)(g), (h) and (3) of the Admiralty Jurisdiction Decree No. 59 of 1991 provides:
“1. The admiralty jurisdiction of the Federal High Court (in this Decree referred to as “the court”) includes the follow, that is……
(a) ………………..……………………………………
(b) ………………..……………………………………
(c) ………………..……………………………………
(d) ………………..……………………………………
(e) ………………..……………………………………
(f) ………………..……………………………………
(g) Any matter arising from a Federal Port or National Airport and its precincts, including claim for lose of or damage to goods occurring between the off-loading of goods across space from a ship or an aircraft and their delivery at the consignee’s premises or during storage or transportation before the delivery to the consignee;
(h) Any banking or letter of credit transaction involving the importation or exportation of goods to and from Nigeria in a ship or an aircraft, whether the importation is carried out or not and notwithstanding that the transaction is between a bank and its customer.
- Any agreement or purported agreement, monetary or otherwise connected with or relating to carriage of goods by sea whether contract of carriage is executed or not shall be within the admiralty jurisdiction of the court.”
Nothing in the excerpts of the statement of claim reproduced above reveals that the claims of the plaintiff were in admiralty. It was simply a claim for goods which the defendants were to sell in Nigeria and to make payment for later to the plaintiffs. It was only coincidental that the goods had been shipped from some oversea country to Nigeria. It would not have made any difference if the goods had been supplied to the defendant from within Nigeria. The nature of the contract between the parties was for the defendants to “sell the goods now and pay latter.” It was an action for recovery of a debt. The use of the expressions “bill of lading, air way bills” was only to describe the motor spare parts as coming from oversea countries and the fact that the goods were to be paid for through “documentary bills for collection and telex transfers” did not make the claim an admiralty matter. It only showed the method agreed by parties for payment. The parties might well have agreed that payment be made by cash or cheque in Nigeria.
It is now settled law that it is the claim of the plaintiff that determines the jurisdiction of the court entertaining it. See Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669; Adeyemi AND ors v. Opeyori (1976) 9 AND 10 SC 31;
The lower court at page 29 of the record of appeal reasoned thus:
“As stated (supra), para 8 of the statement of claim avers that the motor spare parts, the subject matter of this suit were exported both by sea and by air to the defendant herein, (There are six invoices pleaded in support of the averment in para 8), within the meaning of section 1(1)(g) of the Decree. Also, para 9 of the statement of claim avers that the agreed mode of payment for the goods is documentary bills for collection and telex transfer. It is my considered view that a community reading of the provisions of section 1(1)(g) and section 1(3) bring the plaintiff’s claim within the admiralty jurisdiction conferred on this court by section 1(1)(g) and section 1(3) of the Decree.
In support, the plaintiff has pleaded invoices under six bills of lading in para 8 of the statement of claim. The defendant/applicant filed no counter-affidavit in support of it’s motion the subject-matter herein. The totality of the foregoing leads me to the conclusion that the res or the subject-matter of the plaintiff’s claim is –
(a) An agreement to export goods to the defendants and to pay for those goods by documentary bills for collection and telex transfers, within the meaning of section 1(1)(h) and section 1(3) of the Admiralty Jurisdiction Decree 1991.
There are also the provision of section 3(b) of the Decree which provide as follows:-
“……the admiralty jurisdiction of the court shall apply to –
(b) all maritime claims, wherever arising.”
I therefore find that the plaintiff/respondent’s claim in the substantive suit, falls squarely within the admiralty jurisdiction of this court as conferred by section 230(1)(d) of the 1979 constitution, as amplified and specifically conferred by section 1(1)(h); section1(3)and section 3(b) the Admiralty Jurisdiction Decree 1991.
With respect to the learned trial Judge I think that she was misled by the manner in which the plaintiffs put across its claim in the writ of summons. The statement of claim however removed any cloud of ambiguity over the nature of the claim. The statement of claim conveyed that the motor spare parts had been delivered to the defendants in Nigeria and that the obligation on the defendant was simply to sell them and remit the proceeds of sale to the plaintiff. This was not a shipment to the defendants under a banking or letter of credit transaction involving the importation or exportation of goods. Rather, the obligations of the defendant to pay for the goods only arose on the mutual agreement that the goods would have been delivered to the defendants who would sell and then remit the proceeds. This was not a sale under documentary credit.
In Aluminum Manufacturing Co. (Nig) Ltd v. N.P.A. (1987) 1 NWLR (Pt.52) 472 the Supreme Court per Obaseki J.S.C said:
“… the claim does not arise out of any agreement relating to carriage of goods in a ship or to the use of hire of a ship. The facts pleaded did not say or lead to such conclusion ……… In other words, any claim which arises from acts or omission of the parties after the agreement has been executed or terminated does not come within the purview of that paragraph (h) of sub-section 1. It will amount to ridiculous interpretation to say that because the goods had been carried away in a ship, any claim for damage or loss occurring after the completion of the journey by sea to Apapa occurring any where on land falls within the paragraph.
In my view, the facts pleaded in the statement of claim cannot bring the claim within the provision of paragraph (g) or (h) and therefore, I agree with the decision of the court below that the claim is not within the admiralty jurisdiction or other civil jurisdiction of the Federal High Court. The claim is totally devoid of any maritime colouring and founded on a simple contract of bailment and negligence. This is more so as the transaction which gave rise to the claim is in the nature of a bailment.”
It is my conclusion that this case was not within the admiralty jurisdiction of the Federal High Court and that the respondent rightly conceded the appeal.
In the final conclusion, the appeal is allowed. The ruling of the lower court given on 5/5/99 is set aside. In its place, I make an order pursuant to section 16 of the Court of Appeal Act, 1976 and section 22 of the Federal High Court Act that the suit be transferred from the Federal High Court to the Lagos State High Court. See Aluminum Manufacturing Co.(Nig) Ltd v. N.P.A. (supra) and P.E.Ltd. v. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 675 at 693 – 694. I award in favour of the appellant costs assessed and fixed at N2,500.00.
CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JCA:I have read in draft the judgment just delivered and I should on the issues raised therein, be content to leave the matter as ably stated by my learned brother Oguntade JCA. I endorse all the orders contained in the judgment.
AMIRU SANUSI, JCA:I had the advantage of perusing the judgment of my learned brother Oguntade JCA just rendered. I agree with the reason and conclusion reached by my learned brother that the appeal is meritorious I also allow the appeal and award the same amount awarded as cost in the leading judgment.
Cases referred to in the judgment
Adeyemi v. Opeyori (1976) 9 – 10 SC 31.
Aluminium Manufacturing Co. (Nig) Ltd v. N.P.A. (1987) 1 NWLR (Pt.52) 475.
P.E.Ltd. v. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 675.
Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669.
Statutes referred to in the judgment
Admiralty Jurisdiction Decree No. 59 of 1991, Ss. 1(1)(g)(h) AND (3)(b).
Court of Appeal Act 1976; S. 16.
Federal High Court Act, S. 22.
