3PLR – INTERNATIONAL OFFSHORE CONSTRUCTION LTD V. SHORELINE LIFTBOATS NIGERIA LTD
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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INTERNATIONAL OFFSHORE CONSTRUCTION LTD
V.
SHORELINE LIFTBOATS NIGERIA LTD
COURT OF APPEAL
(LAGOS DIVISION)
CA/L/57/2002
3PLR/2003/95 (CA)
OTHER CITATIONS
[2003] 16 NWLR (PT. 845)
BEFORE THEIR LORDSHIPS
MORONKEJI OMOTAYO ONALAJA, J.C.A. (Presided)
CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.C.A.
ABUBAKAR ABDUL-KADIR JEGA, J.C.A. (Read the Leading Judgment)
BETWEEN
- INTERNATIONAL OFFSHORE CONSTRUCTION LTD
- PAN AFRICAN INTERNATIONAL INCORPORATED
- PAN AFRICAN INTERNATIONAL NIGERIA LTD
- IYKE EJIZU
AND
SHORELINE LIFTBOATS NIGERIA LTD
REPRESENTATION
A.M. Makinde, ESQ. – for the Appellants
Chief Bolaji Ayorinde, ESQ. – for the Respondent
MAIN ISSUES
ADMIRALTY AND MARITIME – Admiralty and maritime contract – Exclusive jurisdiction of Federal High Court thereto.
PRACTICE AND PROCEDURE – APPEAL – Ground of appeal – Complaint therein – Need to arise from or relate to decision appealed against.
PRACTICE AND PROCEDURE – APPEAL – Ground of appeal – How couched – Where vague or general in terms – Effect of.
PRACTICE AND PROCEDURE – APPEAL – Issue for determination – Where based on incompetent ground of appeal – Effect of.
PRACTICE AND PROCEDURE – APPEAL – Issue of jurisdiction – Raising of for the first time on appeal – Procedure therefor
COMPANY LAW – Veil of incorporation – Lifting of-Where individual uses names of several companies interchangeably to transact business – Consequence of
COMMERCIAL LAW – CONTRACT – Maritime contract- Questions relating to -Exclusive jurisdiction of Federal High Court to entertain.
ETHICS – LEGAL PRACTITIONER – COSTS – Award of costs – Principles guiding.
ETHICS – LEGAL PRACTITIONER – COSTS – Cost to cover expenses on counsel- Award of – Principle guiding.
PRACTICE AND PROCEDURE – COURT – Federal High Court – Admiralty and maritime contract -Exclusive jurisdiction of Federal High Court thereto.
PRACTICE AND PROCEDURE – DAMAGES – Interest – Award of on damages – Basis of
PRACTICE AND PROCEDURE – EVIDENCE – Standard of proof- Unchallenged evidence- Where evidence of plaintiff is unchallenged – Standard of proof required.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Arrest of judgment – Application for-Attitude of court thereto – Relevant considerations.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Award of interest – Interest on judgment sum – Award of – Basis or rationale therefor
PRACTICE AND PROCEDURE – JURISDICTION – Admiralty and maritime contract – Exclusive jurisdiction of Federal High Court thereto.
PRACTICE AND PROCEDURE – JURISDICTION – Issue of jurisdiction – Raising of for the first time on appeal – Procedure therefor
ETHICS – LEGAL PRACTITIONER – Cost to cover expenses of counsel- Award of – Principle guiding.
MARITIME LAW – Maritime contract – Questions relating to -Exclusive jurisdiction of Federal High Court to entertain.
PRACTICE AND PROCEDURE – Appeal – Ground of appeal -Complaint therein – Need to arise from or relate to decision appealed against.
MAIN JUDGEMENT
JEGA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Sanyaolu, J. of the Federal High Court, Lagos Judicial Division delivered on 14th December, 2000 in which judgment was entered for the respondent as per its, amended statement of claim filed at the lower court in particular paragraph 15 of the said statement of claim. “,
The respondent as plaintiff in the lower court filed a writ of summons and an amended statement of claim filed on 21st June, 2000, claiming against the appellants jointly and severally as follows:
(i) The sum of US $404,000.00 (four hundred and four thousand) United States Dollars or the equivalent in Nigeria Naira being total amount due to the plaintiff from the defendants’ use of the plaintiff’s lift boat known as “Shoreline VII” and for which use the defendants have refused, failed and neglected to pay despite several demands from the plaintiff. i,
(ii) The sum ofN1,000,000.00 being solicitors fees already incurred by the plaintiff as a result of the failure of the defendants to pay for the use of the plaintiff’s lift boat known as “Shoreline VII” as aforesaid.
(iii) Interest at the rate of 21 % per annum on the above total sum from 19th May, 1997 until the date of judgment and thereafter at the rate of 8% per annum until the entire judgment debt and costs are liquidated.
The facts of the case are as stated thus: The respondent company engages in hiring out, servicing and maintenance of boats. The 4th appellant, Mr. Iyke Ejizu who is the chief executive officer and president of the 1st, and 2nd and 3rd appellants companies approached the respondent on the 30th October, 1994, he (Iyke Ejizu) using the name of the 1st respondent (International Offshore Construction Ltd) entered into an agreement with the respondent for the hire of a lift boat {called Shoreline VII) at a rate of $4,700.00 per day.
Between October, 1994 as aforesaid and March 1995, the appellants made use of the boat but refused to pay the agreed rate and thereby incurred an outstanding rent of $404,000.00k. That it is undisputed that the 4th appellant, Mr. Iyke Ejizu is also the alter- ego of the 2nd and 3rd respondents companies which he controls, directs and whose names he uses to conduct his business as he finds convenient. After making several unsuccessful attempts at personal service the respondent sought for and obtained an order for substituted service of the processes in the suit on the appellants. The processes were pasted at the last known address of the appellants that is plot 3214 Dr. Akin Ogunlewe close, Victoria Island, Lagos, this is the same address supplied by the appellants when they entered into an agreement with the respondent on the 30th October, 1994.
The appellants did not participate in the trial while the respondent gave evidence and their counsel addressed the lower trial court. On the 14th of December, 2000, the trial court was about to deliver its judgment when the appellants’ counsel appeared with a motion filed on 13th December, 2000 to arrest the delivery of the judgment. The said counsel was allowed to move the motion and the respondent counsel opposed same. The learned trial Judge consequently struck out the application and he proceeded to deliver the judgment of the court.
Dissatisfied with the judgment of the lower trial Federal High court, the appellants appealed to this court on eight grounds of appeal. The appeal was taken on the 20th March, 2003, counsel to the appellant adopted his brief of argument filed on 8/5/2002 and urge the court to allow the appeal and set-aside the judgment of the lower court. Counsel to the respondent rely and adopted his brief of argument filed on 22/7/ 02 and urged the court to dismiss the appeal and affirmed the judgment of the lower court. In his brief of argument counsel to the appellants formulated eight issues for determination which are stated thus;
- Whether the learned trial Judge was right to have refused to entertain the appellants’ motion filed with an affidavit of urgency when non-service of processes was raised by the appellants at the time when he had not delivered judgment and whether this amount to a denial of fair hearing.
- Whether the learned trial Judge was right to have joined 2nd – 4th appellant as parties to the suit when there were clearly not parties to the contract which formed the basis of the respondent’s claim.
- Whether the learned trial Judge ought to have allowed the appellants to defend the action in view of complaint of service of process of a non-existent address where the 1st respondent claimed to have served the process.
- Whether the learned trial Judge was right to have awarded interest at 21 % per annum till date of judgment and subsequently at 8% on the respondent’s claim when liability to pay interest is not one of terms of the contract between the 1st appellant and the respondent.
- Whether the learned trial Judge was right to have passed on the solicitors fee payable by the respondent to its solicitors to the appellants.
- Whether the lower court had jurisdiction to adjudicate on this suit being claim grounded on a contract of hire.
- Whether the learned trial Judge adverted his mind to the doctrine of distinct corporate legal personality vis- a-vis the appellants.
- Whether the evidence before the court can support the findings and judgment of the lower court.
On the first issue, it is the submissions of the learned counsel for the appellants that the appellant filed an application dated 13th December, 2000 to arrest the judgment to be delivered on the 14th December, 2000 on the ground that the appellants were not served with the processes of the court. The learned trial Judge however denied the appellants the opportunity of being heard on the ground that the procedure was unknown to our civil law. Submits that the learned trial Judge denied the appellants fair-hearing to put up a defence to the claims and evidence against them, that by that, the lower court breached the provisions of section 36(1) 1999 Constitution counsel referred to Otapo v. sunmonu (1987) 2 NWLR (Pt. 58) 587 at 591.
On the second issue for determination counsel to the appellants submitted that 2nd to 4th appellants were not parties to the contract between the 1st appellant and the respondent and that it is trite that the court cannot re-write contract for parties reference made to Afrotec Services Ltd. v. Mia & Sons Ltd. & Anor (2000) 15 NWLR (Pt. 692) 730, (2000) 12 SC (Pt. 11) 1. Further submits that it is trite law that strangers to a contract can neither be sued nor sue on any contract even if the contract is made for their benefit. Reference made to /Ikpeazu v. A.C.B. (1965) NMLR 374; Alfotrin v. A.-G., Federation (1996) 9 NWLR (Pt. 475) 634; Union Beverages v. Pepsi Cola/nt. Ltd. (1994) 3 NWLR (pt. 330) 1; Koiki v. Magnusson (1999) 8 NWLR (Pt.615) 492; Negbenebor v. Negbenebor (1971) 1 All NLR 210.
On the third issue for determination learned counsel submits that the appellants were served by an Order of substituted service and that the 2nd appellant a foreign company was not served in accordance with the rules of court on service outside the jurisdiction of the court, submits that by virtue of the fact that service is fundamental the trial court ought to have allowed the appellants opportunity to defend the action as non-proof of service will render all judicial actions made there under a nullity, reference to Skenconsult v. Ukey (1981) 1 SC 6; Mohammed v. Mustapha (1993) 5 NWLR (Pt. 292) 222; Laban-Kowa v. Alkali (1999) 9 NWLR (Pt. 620) 601; NPC v. Ikere Local Govt. (2001) 7 SC (Pt. 3) 90.
On issue No.4, learned counsel submits that it is not part of the agreement in the contract of 3Dth October, 1994 to pay interest therefore, the trial Judge erred in law to have awarded interest at 21 % to the respondent reference made to Alfotrin Ltd. v. A.-G., Federation (1996) 9 NWLR (Pt.475) 634; London Chatham & Dover v. South Eastern Rly (1893) AC 429.
On issue No.5, counsel contends that payment of solicitor fee is not a term of the contract of 30th October, 1994, that awarding judgment to the respondent against the appellant for the payment of respondent’s solicitors amount to importing a clause not part of the contract of 30th October, 1994 into it and thereby conferring benefit on the solicitor who is not a party to the contract and was not in contemplation at the time of entering into the contract Alfotrin Ltd. v. A.-G., Federation (supra.)
On issue 6, the learned counsel to the appellants submits that the claim of the respondent is grounded in simple contract of between the respondent and the 1st appellant which is an action for which jurisdiction is conferred on the State High Court-reference made to section 272(1) of the 1999 Constitution. Submits that the Federal High Court lacked jurisdiction to adjudicate on the matter and that there is no feature in the respondent’s claim against the appellant that can confer jurisdiction on the lower court reference made to Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) 517; Bronik Motors v. Wema Bank Ltd. (1983) 1 SC NLR 296; Savannah Bank v. Pan Atlantic & Anor. (1987) 1 NWLR (Pt.49) 212.
On issue No.7, it was submitted that the 2nd-4th appellants have distinct legal personality different from the 1st appellant, that the use of the word sister company cannot be used as a cloak to lump them together reference made to Salomon v. Salomon (1897) AC22.
On issue No.8, learned counsel submit that by the evidence on P. W. 1 at page 16-17 of the record the respondent had an agreement with the 1st appellant on 30th October, 1994 and that the respondent and the 1st appellant were the only parties on record as at 2nd March, 2000 when evidence was given. Further submits that the amended statement of claim at paragraph 5 states that the agreement was with defendant/appellants thereby attempting to link the 2nd-4th appellants with the contract. The learned counsel submits that the evidence is at variance with the pleadings and therefore goes to no issue and the evidence proffered by the respondent is insufficient to support the judgment of the lower court, counsel referred to Anyanwu v. Iwuchukwu (2000) 15 NWLR (Pt. 692) 721, (2000) 12 SC (Pt. 111) 67; Overseas Const. Ltd. v. Creek Enter Ltd. (1985) 3 NWLR (Pt. 13) 407; (1985) 12 SC 158; Kode v. Yussuf(2001) 4 NWLR (Pt. 703) 392, (2001) 2 SC 85. Finally, learned counsel urged the court to allow the appeal and set aside the judgment of the lower court.
In his brief of argument the respondent raised a notice of preliminary objection to ground 6 of the amended notice of appeal filed on 20th February. That the objection is however without prejudice to arguments on the merit in the later part of the brief on the issues raised upon the said ground as such arguments are proffered in the alternative and in the unlikely event that the court holds that this objection cannot be sustained. That ground 6 of the amended notice of appeal states:
“The learned trial Judge lacked jurisdiction to adjudicate on a matter founded on simple contract.”
The learned counsel referred to Order 3 rule (4) Court of Appeal Rules and the case of age v. Ede (1995) 3 NWLR (Pt. 385) 564 and submits that the said ground is vague, general in terms and defective and as such offends against the provisions of Order 3 rule 2(4) and therefore should be struck out. Also submits that failure by the appellants to supply and or add particulars to ground 6 either in the body of the ground or separately made the ground defective referred to D. Stephens Ind. Ltd. v. BCCI (Nig.) Ltd. (1999) 11 NWLR(Pt.625) 29.
Further submits that although the issue of jurisdiction can be raised at anytime and even on appeal, the mode of raising such an issue is not a free for all procedure. That the law is that the party raising an issue of jurisdiction for the first time on appeal must seek and obtain leave of the Court of Appeal before raising same. Reference made to Jov v. Dom (1999) 9 NWLR (Pt. 620) 538 urged the court to strike out ground 6.
The learned counsel for the respondent treated issues 1 and 3 together and submit that the lower court considered the application of 13th December, 2000 and struck out same for lack of merit and submits further that there was no appeal against the ruling striking out the said application. Further contends the decision to refuse the application is not contained in the judgment of the lower court dated 14th December, 2000 and this is the judgment appealed against by the appellants.
On issues 2 and 7 it is submitted for the respondent that the 2nd, 3rd and 4th appellants were properly joined by the lower court as the 2nd, 3rd and 4th defendants being necessary parties to the respondent’s claim and most importantly upon the lower court’s conclusion having seen evidence that the 1st, 2nd and 3rd appellants were companies used, controlled and directed by the 4th appellant as he desired and particularly with the subject matter of this dispute reference made to Green v. Green (1987) 3 NWLR (Pt. 61) 480 at 493; Ance v. Raphel Tuck & Sleens Ltd. (1996) 1 QBD 357.
On issues 4 and 5 it is submitted for the respondent that the respondent was entitled to judgment and the award of interest thereon, that claims in commercial matters must necessarily attract interest when the money has been due and unpaid reference made to NGS Co. Ltd. v. N.P.A (1990) 1 NWLR (Pt. 129) 741; Kano Textiles Printers Plc v. Tukur (1999) 2 NWLR (589) 78; Habib (Nig.) Bank Ltd. v. Ochete (2001) 3 NWLR (Pt. 699) 114 at 134.
Order 42 rule 7 Federal High Court (Civil Procedure) Rules 2000, further submits that the award made by the learned trial Judge in respect of solicitors fees is not premised upon the contract of 30th October, 1994 but as part of the costs incurred by the respondent in the recovering of the appellants’ indebtedness reference made to Rewane v. Okotie -Eboh (1960) SCNLR 461, (1960) NSCC Vol 135; Adams v. London Improved Motor Coach Builders Ltd. (1921) 1-CB 495; Gundy v. Sainebury (1910) 1 Q.B 645; Onabanjo v. Ewetuga (1993) 4 NWLR (Pt. 288) 455.
On issue No.6 learned counsel for the respondent submits, that the plaintiff’s claim arose from the breach of contract of hire of a boat. The exclusive jurisdiction of the Federal High Court over any admiralty matters can be, found in section 251 (1){ a) Constitution of the Federal Republic of Nigeria 1999. Further the admiralty jurisdiction of the Federal High Court is contained in the admiralty jurisdiction Decree No. 59 of 1991.
On issue No.8 for determination it was submitted for the respondent that the evidence adduced by the respondent was enough to enable the lower court decide the case in favour of the respondent; it is also not in doubt and the appellants also do not deny the fact that the 4th appellant is the beneficiary of the transaction with the respondent.
Finally, counsel for the respondent urged us in the interest of justice to dismiss this appeal and order that the appellants pay the judgment sum.
The respondent in his brief of argument has raised preliminary objection to ground 6 of the amended notice of appeal filed on 20th February, 2002. It is the law that a preliminary objection must always be argued first and disposed of before the main appeal even if raised in the brief. Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 297; Begha v. Tiza (2000) 4 NWLR (Pt. 652) 193 at 205.
Counsel to the respondent has contended that ground 6 of the amended notice of appeal is vague, general in terms and defective and as such offends the provisions of Order 3 rule 2(4) of the Court of Appeal Rules. Ground 6 of the amended notice of appeal reads as follows:
“The learned trial Judge lacked jurisdiction to adjudicate on a matter founded on simple contract.”
Order 3 rule 2(4) of the Court of Appeal Rules provides as follows: “No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of .appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.”
There is no doubt looking at ground 6 of the amended notice of appeal is vague or general in terms. The appellants failed to supply and/or add particulars to the ground either in the body of the ground or separately. The appellants totally failed to show the reason for their complaint on lack of jurisdiction of the lower court over a matter founded on simple contract, I therefore hold ground 6 of the amended notice of appeal is vague, general in terms and defective as such offends against the provision of Order 3 rule 2(4). Age v. Ede (1995) 3 NWLR (Pt. 385) 564 at 577; D. Stephens Ind. Ltd. v. BCCI (Nig.) Ltd. (1999) 11 NWLR (Pt. 625) 29 at 34-35. For offending the provisions of Order 3 rule 2(4) of the rules of the Court of Appeal ground 6 of the amended notice of appeal ought to be struck out.
It is noted that ground 6 of the amended notice of appeal raised the issue of jurisdiction. It is settled law that the issue of jurisdiction can be raised at any time even on appeal. But then the mode of raising such an issue is not a free for all procedure. The law is that the party raising an issue of jurisdiction for the first time on appeal must seek and obtain leave of the Court of Appeal before raising same the Supreme Court through Belgore, JSC in Jov v. Dam (supra) states thus:
“A question of law and jurisdiction can be raised at any time in the proceedings, but is not a free for all procedure. Moreover, courts can raise a matter of law and Constitution at anytime, but in doing so the parties must be afforded the opportunity of addressing on it. This basically goes to the spirit of fair hearing. It is for this reason that a party to an appeal that intends to raise a new issue or introduce a novel matter into an appeal must seek leave to do so.”
The appellants in the appeal did not seek leave of this court to raise the issue of jurisdiction for the first time. Accordingly, ground 6 of the amended notice of appeal is totally defective in all angles, the preliminary objection raised in this appeal as it relates to ground 6 of the amended notice of appeal succeeds and ground 6 of the amended notice of appeal is hereby struck out.
Issue No.1 for determination in this appeal is distilled from ground 1 of the appellants’ amended notice of appeal. Ground 1 of the amended notice of appeal states:
“The learned trial Judge erred in law by denying the appellants fair hearing before delivering the judgment of 14th December, 2000.” Particulars of error:
(a) The appellants filed the application dated 13th ,(I;:: December, 2000 to which was attached an affidavit of urgency complaining of non service of processes on any of the appellant/applicants which came to the knowledge of the lower court ill, before delivery of judgment.
(b) The learned trial Judge apart from not allowing the applicants’ counsel to move the application and decide one way or the other stated “that the procedure of arresting of judgment is unknown :18 to our Civil Law” and consequently deprived the applicants the opportunity of presenting the merit or demerit of the applications
(c) The learned trial Judge in the judgment of 14th day of December, 2000 made no reference to the appearance of the appellants’ counsel and erroneously stated in the judgment that the appellants though served was absent and not represented.”
From the record of appeal before the court page 48 the appellants filed a motion on notice dated 13th December, 2000 praying for the following reliefs:
(1) An order arresting or fore bearing the reading, giving or pronouncement of the ruling or judgment order or decree in respect of this matter in that the defendant was not or has not been served with any processes in this matter.
(2) An Order directing the plaintiff/respondent or their counsel if represented by counsel to serve all the processes in this suit or counsel to the defendant/ applicant forthwith. And such further or other Orders as the honourable court may deem fit to make in the circumstances. On the 14th December, 2000, the learned counsel for the appellant was allowed to move the said motion to notice dated 13th December, 2000. The respondent counsel opposed the motion and the learned trial Judge found that the motion was incompetent and struck it out. The motion heard and struck out was not part and parcel or contained in the judgment of 14th December, 2000, which is being appealed against. There is no appeal against the ruling of the lower court refusing the application for arrest of judgment.
It is therefore manifest that ground 1 of the amended notice of appeal from which issue No.1 for determination is distilled, is grossly incompetent as the issues raised in the said ground were not contained in the judgment of 14th December, 2000 which is being appealed against by the appellants. It is trite law that a ground of appeal against a decision of a trial court must relate to that decision and should be a challenge to the ratio of the decision. A ground of appeal must arise from the judgment. Where a ground of appeal is not related to the judgment of the lower court it becomes incompetent. Newbreed Press Ltd. v. Jaiyesin (2000) 6 NWLR (Pt. 662) 561; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156; Adesanya v. President of Nigeria (1981) 2 NCLR358; Egbe v. Alhaji (1990) NWLR (Pt. 128) 546.
In the instant appeal ground 1 of the amended notice of appeal does not relate to the judgment of the lower court being appealed against therefore it is accordingly struck out.
Issue No.2 for determination is distilled from ground 2 of the amended notice of appeal. Ground 2 of the amended notice of appeal reads:
“The learned trial Judge erred in law when he joined the 2nd-4th appellants as parties to a contract they were not party to pursuant to application of the respondent dated 21st March, 2000.”
Particulars of Error:
(a) The 2nd-4th appellants were not parties to the contract of 30th October, 1994 between the plaintiff/respondent and the 1st appellant dated 30th October, 1994.
(b) The 2nd-4th appellants by virtue of being strangers to the contract of 30th October, 1994, between the plaintiff/ respondent and the 1st appellant can neither benefit nor be liable by a claim covered jointly and severally by the respondent.
The 2nd to 4th appellants were joined as parties on motion on notice dated 21st March, 2000. The decision to join the 2nd to 4th appellants was based on the motion on notice dated 21st March, 2000 and is not contained in the judgment of 14th December, 2000 being appealed against therefore ground 2 of the amended notice of appeal on which issue 2 for determination is distilled is equally incompetent as it does not relate to the decision of the trial court in the judgment appealed against accordingly, it ought to be struck out and it is hereby struck out.
Issue No.3 for determination is distilled from ground 3 of the amended notice of appeal which state thus:
Ground 3 The learned trial Judge erred in law by refusal to allow the appellants to defend the action in view of complaint of non-service of court processes.
Particulars of Error:
(a) The learned trial Judge ought to have allowed the appellants to defend the action when complaint of the appellants was that service of the processes were made by substituted service especially at a non-existent address of No. 3124, Akin Ogunlewe Street, Victoria Island, Lagos especially when service on all appellants were by substituted service.
(b) The learned trial Judge also failed to consider the service of court processes defendant/appellant a company incorporated in the United States thereof making irrelevant the rules of court relating to the service outside jurisdiction and accepted substituted service by pasting on the 1st appellant as proper service on the 2nd appellant.
(c) Hearing has commenced in the suit on 2nd March, 2000 before 2nd-4th appellants were joined pursuant to the respondent motion of 21st March, 2000.
The decision to serve the 2nd to 4th appellants by substituted service was based on the motions ex parte and on notice dated 19th February, 1999 and 21st March, 2(xx) and this is not contained in the judgment of 14th December, 2(xx) which is being appealed against by the appellant.
There is no appeal against the decision to serve the 2nd to 4th appellants by substituted service as the decision serve the 2nd to 4th appellants does not relate to the decision of the trial court in the judgment appealed against ground 3 of the amended notice of appeal become manifestly incompetent and ought to be struck out and it is hereby struck out.
The law is that issues for determination in an appeal must relate to competent grounds of appeal and grounds 1, 2, 3 and 6 of the grounds of appeal have been declared incompetent and struck out, issues Nos. 1, 2, 3 and 6 which draw probative value from those grounds are equally doomed for striking out. Issues Nos. 1,2,3 & 6 formulated by the appellant are accordingly struck out. This appeal is, however saved by its grounds 4, 5, 7 and 8.
On issue No.4 for determination appellants counsel contended that the trial Judge ought not to have awarded interest against the appellants since there was no provision for same in the agreement. In its paragraph 15(iii) the respondent claimed as follows:
(iii) Interest at the rate of 21 % per annum on the above total sum from 19th May, 1997 until date of judgment and thereafter at the rate of 8% per annum until the entire judgment debt and costs are liquidated.
The learned trial Judge awarded the interest claimed. The basis of award of interest is that the plaintiff has been kept out of his money for the period of deposit with the defendant who had the use of it for himself for which he ought to compensate the plaintiff accordingly. See Kano Textiles Printers Plc vs. Tukur(1999) 2NWLR (Pt. 589) 78; Habib (Nig.) Bank Ltd. v. Ochete (2001) 3 NWLR (pt. 699) 114.
In the instant appeal the learned trial Judge was absolutely right in awarding the interest claim since the principal amounts claimed have been established, I therefore, resolve issue No.4 in favour of the respondent against the appellants.
On issue No.5 that is whether the learned trial Judge was right to have passed on the solicitors fee payable by the respondent to its solicitors to the appellants. In its amended statement of claim the respondent in paragraph 15(ii) claims as follows:
“The sum of N1,000,000.00 being solicitors fee already incurred by the plaintiff as a result of the failure of the defendants to pay for the use of the plaintiff’s lift boat known as “Shoreline VII” as aforesaid.” The respondent led evidence to show that it paid its solicitors Nl,000,000.00 page 17 of the record of appeal. The appellants did not challenge evidence led or show that the award was unreasonable or that the respondent employed an unusual number of counselor a very expensive counselor that the award was more than necessary to indemnify the respondent of the expenses incurred in counsel’s cost, the appellants have not shown any of the above. Under our laws expenses incurred on services of counsel are reasonably compensated so held the Supreme Court in Rewane v. Okotie-Eboh (1960) SCNLR 461, (1960) NSCC (Vol. 1) 135 at 139.
“Costs will therefore be awarded on the ordinary principles of genuine and reasonable out of pocket expenses and normal counsel cost usually awarded for a leader and one or two juniors.”
Therefore, the learned trial Judge was perfectly right in the award made in respect of expenses incurred by the respondent for services of solicitors employed in view of the unchallenged evidence before the court. I, therefore resolve issue No.5 as formulated by the appellants in favour of the respondent.
On issue No.7 it is clear from the record before the court that the appellants even though the 1st to 3rd appellants have different names their operations and transactions are controlled and dictated by one personality under different nomenclatures, from the evidence presented before the court it is beyond dispute that the 4th appellant is the controller, directing mind and alter-ego of the 1st, 2nd and 3rd appellants. If he chooses to operate under different corporate names then he makes himself and those other corporate names which he operates with liable. It is the 4th appellant that executed the agreement of hire of boats and in the agreement he signed for the 1 st appellant. The same 4th appellant Iyke Ejizu, admitted, acknowledged and promised to liquidate the outstanding debt from the agreement as aforesaid under the name of the 2nd appellant. There is also evidence that the 4th appellant also operates under the name of the 3rd appellant. In this regard the findings of the learned trial Judge is very instructive at page 77 of the record of appeal. He stated thus:
“The evidence before me is to the effect that the 2nd and 3rd defendants are sister companies of the 4th defendant all under the control of the 4th defendant and that the 4th defendant uses the 1st to 3rd defendants companies inter- changeably. I also hold that exhibit” A” was signed by the 4th defendant but with the name of the 1st defendant. Evidence was also led that the 4th defendant also operates in the name of the 3rd defendant.”
The law is that the corporate shell of an incorporated company can be cracked. There is no doubt that it was necessary to lift the corporate veil of the 1st, 2nd and 3rd appellants upon uncontradicted evidence that the 4th appellant operated with the three companies interchangeably in his dealing with the respondent whereby, he made use of the respondent’s boat without paying for such use. See Gilford Motor Co. v. Home (1933) (Pt. 935) where it was held that the court would lift the veil of incorporation where the interest of justice so demands. In the instant appeal, there is no doubt that the interest of justice demands that the corporate veil of the 1 st, 2nd and 3rd appellants be lifted by the lower trial court which was effected accordingly. I, therefore, resolved issue No.7 in favour of the respondent against the appellants.
On issue No.8, one witness testified for the respondent and his testimony was not challenged, the learned trial Judge based his findings on the evidence before him and there was overwhelming evidence before the trial court to support the findings and judgment of the lower court. Accordingly, this issue is resolved in favour of the respondent against the appellants.
In sum, having regarded all I have said (supra), my judgment is that this appeal is unmeritorious. It must be dismissed and I accordingly dismiss it while I affirm the judgment of the court below. The respondent is entitled to cost of this appeal which I assess and fix in its favour but against the appellants at N9,500.00
ONALAJA, J .C.A.: I was privileged to have had a preview of the lead judgment of my learned brother, Jega, JCA which was in respect of a maritime contract of Lift Boat known as “Shoreline VII which was let out for the use of appellants by the respondent. The facts that gave rise to this appeal were clearly and meticulously set out in the lead judgment arrived at from the pleadings and unchallenged evidence of the only and singular witness of the respondent. It is trite law that the burden on unchallenged evidence is minimal proof if such evidence was accepted and believed by the learned trial Judge as shown in the printed record.
Appellants complained of non-service of processes on them yet they brought motion to arrest the judgment of the lower court. The attitude of the Court of Appeal was judicially considered in the case of Bob Manuel v. Lulu Briggs (1995) 7 NWLR (Pt. 409) at page 559 which judgment was confirmed by the Supreme Court on appeal.
The courts frown on arrest of judgments generally and the grant or refusal of arrest of judgment of a competent court with jurisdiction shall turn out on the peculiar circumstance of each case. In the instant appeal the lead judgment rightly refused the complaint against the arrest of the judgment of the learned trial Judge of the lower court more also when there was no competent appeal before this court on the refusal.
As appellant raised the lack of jurisdiction of the Federal High Court, that the action arose from simple contract between the parties and not a cause to be adjudicated upon by the Federal High Court, this complaint lacked merit and was rightly resolved in the lead judgment that as the contract was in respect of hire of Lift Boat known as “Shoreline VII” it involved maritime matter which jurisdiction was granted exclusively to the Federal High Court under its admiralty jurisdiction. I am in complete agreement with the lead judgment that the Federal High Court had exclusive jurisdiction to adjudicate on the maritime contract of hire of a Lift boat under the admiralty jurisdiction of the Federal High Court also reject the contention of appellants that the Federal High Court lacked jurisdiction to entertain the action even though the issue of jurisdiction was raised for the first time in this court Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (1983) 1 SCNLR 296, (1983) 6 SC 158-350; Raimi Akande 72 Ors. v. Busari Alagbe & Anor. (2000) 15 NWLR (Pt. 690) page 353 CA; Attorney-General of Oyo State v. Nigeria Labour Congress Oyo State Chapter & 4 Ors. (for themselves and on behalf of other members of Nigeria Labour congress (NLC) Oyo State Chapter and Civil Servants of Oyo State (2003) 8 NWLR (Pt.821) CA; Sunday Oshodi Apena v. National Union of printing Publishing and Paper Products (2003) 8 NWLR (Pt.822) page 426 CA.
As the reasonings and conclusions arrived at in the lead Judgment of my learned brother Jega, JCA accord with my thoughts on the appeal I adopt the reasons and conclusions as my own pointedly that I also dismiss the appeal as unmeritorious and abide with the consequential orders made in the lead judgment especially the order of costs.
CHUKWUMA-ENEH, J.C.A.: I have read in advance judgment of my learned brother, Jega, JCA just delivered and I agree with him that the appeal lacks merit and should therefore be dismissed. I assess and fix the costs at N9.500.00.
Appeal dismissed
Nigerian Cases Referred to in the Judgment:
A.-G., Oyo State v. N.L.C. (2003) 8 NWLR (Pt. 821) 1
Adesanya v. President of Nigeria (1981) 2 NCLR 358
Afrotec Servo Ltd. v. Mia & Sons Ltd. (2000) 15 NWLR (Pt. 692)730
Akande v. Alagbe (2000) 15 NWLR (Pt. 690) 353
Alfotrin v. A.-G., Federation (1996) 9 NWLR (Pt.475) 634
Anyanwu v. Iwuchukwu (2000) 15 NWLR (Pt. 692) 721
Apena v. National Union of Printing Publishing and Paper Products (2003) 8 NWLR (pt. 822) 426
Begha v. Tiza (2000) 4 NWLR (Pt.652) 193
Bob-Manuel v. Briggs (1995) 7 NWLR (Pt. 409) 559
BRONIK MOTORS V WEMA BANK (1983) 1 SCNLR 296
- Stephens Ind. Ltd, v. BCCI (Nig.) Ltd. (1999) 11 NWLR (Pt.625) 29
Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546
Green v. Green (1987) 3 NWLR (Pt.61) 480
Habib (Nig.) Bank Ltd. v. Ochete (2001) 3 NWLR (pt. 699) 114
Ikpeazu v. A.C.B. (1.965) NMLR 374
Kode v. Yussuf (2001) 4 NWLR (Pt. 703) 392
Jov v. Dom (1999) 9 NWLR (Pt. 620) 538
Kano Textiles Printers Plc v. Tukur (1999) 2 NWLR (pt. 589) 78
Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) 492
Laban-Kowa v. Alkali (1999) 9 NWLR (Pt.620) 601
Mohammed v. Mustapha (1993) 5 NWLR (Pt.292) 222
Negbenebor v. Negbenebor (1971) 1 All NLR 210
Newbreed Press. Ltd. v. Jaiyesin (2000) 6 NWLR (Pt. 662) 561
NGS Co. Ltd. v. N.P.A. (1990) 1 NWLR (P. 129) 741
NPC v. Ikere Local Govt. (2001) 7 SC (Pt.3) 90
NSIRIM V. NSIRIM (1990) 3 NWLR (Pt.138) 285
Oge v. Ede (1995) 3 NWLR (Pt. 385) 564
Onabanjo v. Ewetuga (1993) 4 NWLR (Pt.288) 445
Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587
Overseas Const. Co. Ltd. v. Creek Ent.(1985) 3 NWLR (Pt. 13)407
Rewane v. Okotie-Eboh (1960) SCNLR 461
Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156
S.B.N. Ltd. v. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212
Skenconsult v. Ukey (1981) 1 SC 6
TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517
Union Beverages v. Pepsi Cola Int. Ltd. (1994) 3 NWLR (Pt.330) 1
Foreign Cases Referred to in the Judgment:
Adams v. London Improved Motor Coach Builders Ltd. (1921)l-CB 495
Ance v. Raphel Tuck & Sleens Ltd. (1996) 1 QBD 357
Gilford Motor Co. v. Horne (1933)
Gundy v. Sainebury (1910) 1 QB 645
London Chatham & Dover Rly v. South Eastern Rly (1893) AC 429
SALOMON v SALOMON(1897) AC 22
Nigerian Statutes Referred to in the Judgment:
Admiralty Jurisdiction Decree No. 59 of 1991
Constitution of the Federal Republic of Nigeria, 1999 Ss. 36(1);251(1) & 272(1)
Nigerian Rules of Courts Referred to in the Judgment:
Court of Appeal Rules, (1981) as Amended, Cap. 62, Laws of the Federation of Nigeria, 1990,0.3 r.2(4)
Federal High Court (Civil Procedure) Rules 2000, 0.42 r.7
