3PLR – K. MAERTSCH & ORS V. OLA BISIWA

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

K. MAERTSCH & ORS

V.

OLA BISIWA

IN THE COURT OF APPEAL

(BENIN JUDICIAL DIVISION)

ON TUESDAY, THE 25TH DAY OF JUNE, 2013

SUIT NO: CA/B/6/2007

3PLR/2013/95 (CA)

 

 

OTHER CITATIONS

(2013) LPELR CA/B/6/2007

 

BEFORE THEIR LORDSHIPS           

HELEN MORONKEJI OGUNWUMIJU, JCA

SIDI DAUDA BAGE, JCA

TOM SHAIBU YAKUBU, JCA

 

BETWEEN  

1. K.MAERTSCH
2. THE OWNER OF M.V. WALVIS 7
3. WALVIS NIGERIA COMPANY LTD.
4. M.V. WALVIS 7 – Appellants

AND

OLA BISIWA – Respondents

 

REPRESENTATION

U.H. Azikiwe – For the Appelants

W.E. Oghiagbepha – For the Respondents

 

ORIGINATING STATE

Federal High Court: (G.O. Kolawole J Presiding)

 

 

MAIN ISSUES

FOOD AND AGRICULTURE LAW:- High sea Fishing – Fishing nets operated/manned by workers at the break water before Escravos damaged by ship which Captain negligently left its normal Navigational Route – Action for damages for destruction of fishing nets by a vessel – How treated

ADMIRALTY AND MARITIME LAW – JURISDICTION OF THE ADMIRALTY COURT:- Recognition under admiralty laws both local and international that the vessel has a separate legal entity – Whether vests Admiralty courts with jurisdiction by virtue of the presence of the vessel in its territorial jurisdiction irrespective of whether the vessel is national or not and whether registered or not and regardless of wherever the residence or domicile of the vessel owners may be

ADMIRALTY AND MARITIME LAW – JURISDICTION OF THE ADMIRALTY COURT:- Arrest of vessel by the court – Purpose of – Implication for jurisdiction of arresting court – Whether a ship is arrested so as to obtain a pre-judgment security for a claim so that a judgment given in favour of an arrester may be secured by means of some guarantee acceptable to both the court and the arrestor in place of the vessel or “res”

ADMIRALTY AND MARITIME LAW – JURISDICTION OF THE ADMIRALTY COURT:- Action instituted in rem – Need to join ab initio, the vessel as a party – Whether proper for court to grant an order ex parte against the vessel at the time it was not yet a party to the action

ADMIRALTY AND MARITIME LAW:- Interpretation of S.5 of the Admiralty Jurisdictions Act 1991 Cap A5 Laws of the Federation 2004 – Mode of exercise of admiralty jurisdiction – How an action in personam may be brought in the court in all cases within the admiralty jurisdiction of the court – How an action in rem may be brought in the court against the ship or property in connection with which the claim or question arises – Case in which there is a maritime lien or other charge on any ship, aircraft or other property for the amount claimed – How an action in rem may be brought in the court against that ship, aircraft or property

ADMIRALTY AND MARITIME LAW:- Interpretation of S.5 of the Admiralty Jurisdictions Act 1991 Cap A5 Laws of the Federation 2004 – Meaning of maritime lien – Justification fo rexercise of a lien – salvage; damage done by a ship; wages of the master or of a member of the crew of a ship; master’s disbursements – Other claims under S.2 of the Act in connection with a ship – Where the person who would be liable on the claim in an action in personam was, when the cause of action arose, the owner or charterer of or in possession or in control of the ship – When and how an action in rem may be brought – Other relevant considerations

ADMIRALTY AND MARITIME LAW:- Jurisdiction of the Federal High Court – Order XVIII R(1) &   (2) of the Admiralty Jurisdiction Rules made pursuant to the Admiralty Jurisdiction Act – Whether the Admiralty Jurisdiction Act does not raise a jurisdictional matter but a procedural one – Whether the jurisdiction of the Federal High Court cannot be challenged because a claim was made in rem while it should have been made in personam or vice versa

PRACTICE AND PROCEDURE– COURT – RIGHT AND DUTY OF COURT: Rule that it is the right and even the duty of a trial judge to raise an issue suo motu in pursuit of justice – Limits of propriety – Whether it is not proper for a court to consider an issue raised suo motu unless it has afforded all parties an opportunity of addressing it on same

PRACTICE AND PROCEDURE – APPEAL – EXERCISE OF DISCRETION BY TRIAL COURT – INTERFERENCE BY THE APPELLATE COURT: Where the exercise by a lower court of its discretion is perverse, oppressive or arbitrary, in appellate is entitled and has a duty to interfere with the exercise of that discretion

PRACTICE AND PROCEDURE – JUDGMENT – COURT – ORDER OF COURT:- An order made within jurisdiction – Whether not invalid or a nullity even if it is erroneous in fact or in law or even perverse –

INTERPRETATION OF STATUTE – S.5(2)-(a) of the Admiralty Jurisdictions Act 1991 Cap A5 Laws of the Federation 2004 – Interpretation thereof

WORD AND PHRASES– “Action in rem” – “Action in personam” – Meaning thereof

 

 

 

MAIN JUDGMENT

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):

This is an appeal by the Defendants (“the Appellants”) in suit No. FHC/B/CS/174/2001 at the Benin Judicial Division of the Federal High Court against the decision of the Honourable Justice G.O. Kolawole contained in the Ruling of the lower court which was delivered on Friday, 12th March, 2004.

 

The facts that led to this appeal are as follows:

 

The Plaintiff in the lower court who is the Respondent in this appeal commenced his action by a writ of summons dated 17th August 2001 and claimed the sum of N9,000,000.00 (Nine million Naira) as damages for destruction of his fishing nets by a vessel, M.V. Walvis 7. The lower court based on the Respondent’s Motion Ex parte dated 17th August, 2001, made an order on the same date by which the vessel was arrested.

 

In response, the Appellants applied by a Motion on Notice dated 12th September, 2001 for an order to discharge or set aside the order of arrest. The court ordered release of the vessel subject to the provision by the Appellants of a bond issued by a member of P and I club. The appellants subsequently applied by a motion on notice dated 18th March, 2002 and (when it was struck out) by a similar motion on notice dated 16th April, 2003 for the following:

1. An Order striking out this suit on the ground that it is incompetent.
2. An Order setting aside the purported order of arrest of the vessel M.V. Walvis 7 on the ground that the court lacks the jurisdiction to make the order given the nature of the action.
3. An Order discharging the Insurance Bond for the sum of N4,000,000 provided by the 3rd Defendant/Applicant.

 

The Honourable Justice A.O. Ajakaiye heard the appellants’ motion on notice dated 18th March, 2002 and reserved his ruling for 19th November, 2002 but thereafter he was transferred to another Division of the Federal High Court. The Honourable Justice G.O. Kolawole on 29th January, 2004, heard the Motion on Notice dated 16th April, 2003. Counsel adopted their respective written submissions which the parties agreed to file and exchange. In the Ruling, the trial court dismissed the appellants’ Motion and suo motu, directed the Respondent to amend its processes in order to join the vessel as a party to the suit.

 

In his ruling, the learned judge of the trial court dismissed the appellants’ motion on Notice dated 15th April, 2003 by which the appellants sought to have the substantive suit struck out for incompetence and the orders made by the lower court set aside or discharged, as the case may be.

 

The appellants being aggrieved, filed with leave of the Court of Appeal (which leave was granted on 30th March, 2006) their Notice of Appeal dated and filed on 7th April, 2006 containing seven (7) grounds of appeal.

 

The appellant’s counsel in the brief settled by Uzoma Azikiwe submitted the following issues for determination. They are set out below:

(1)     Whether having regard to the finding and acceptance by the learned trial judge that the respondent’s substantive suit was not validly commenced as an admiralty action in rem, the learned trial judge was wrong when he declined to strike out the said suit. (This issue is covered by Grounds of Appeal Nos. 1 and 5).

(2)     Whether having found and accepted that the vessel ‘M.V. Walvis 7’ was not a party to the substantive suit when the order of arrest of the said vessel was made, the learned trial judge was wrong when he declined to set aside the said order of arrest and failed to discharge the insurance bond. (This issue is covered by Grounds of Appeal Nos. 2, 3,4 and 5).

(3)     Whether the learned trial judge was wrong to have relied on a purported unread draft ruling of the former Presiding Justice of the court and the conclusions of the latter in respect of the appellant’s Motion on Notice. (This issue is covered by Grounds of Appeal No. 5).

(4)     Whether the learned trial judge erred when without hearing and determining the respondent’s application to join the vessel, M.V. Walvis 7, he suo motu ordered that the said vessel be joined as defendant in the suit. (This is covered by Grounds of Appeal No. 6).

(5)     Whether the award of N10,000.00 costs by the learned trial judge was wrong and should be set aside by this Honourable Court. (This issue is covered by Ground of Appeal No. 7).

 

The Respondent’s counsel in the brief settled by W.E. Oghiagbepha also adopted four similar issues set out below:

1. WHETHER FAILURE TO COMMENCE THE SUIT/ACTION IN THE LOWER COURT IN STRICT COMPLIANCE WITH THE PROVISIONS OF S.5(3) AND (4) OF THE ADMIRALTY JURISDICTION ACT 1991 CAP A5 LAWS OF THE FEDERATION OF NIGERIA 2004, ORDER 4 RULE 2 AND ORDER 2 RULE 2(1) OF THE ADMIRALTY JURISDICTION PROCEDURE RULES 1993 RENDERS THE ENTIRE SUIT/ACTION INCOMPETENT?
2. WHETHER THE APPELLANTS 2ND PRAYER FOR “AN ORDER SETTING ASIDE THE PURPORTED ORDER OF ARREST OF THE VESSET M.V. WALVIS 7 ON THE GROUND THAT THE COURT LACKS THE JURISDICTION TO MAKE THE ORDER” GIVEN THE NATURE OF THE ACTION DID NOT AMOUNT TO AN ABUSE OF PROCESS OF COURT?
3. WHETHER THE ADOPTION BY THE LEARNED TRIAL JUDGE OF THE OPINION OF HIS LEARNED BROTHER IN A DRAFT AND UNDELIVERED RULING IN THE MATTER OCCASIONED ANY MISCARRIAGE OF JUSTICE?
4. WHETHER THE LEARNED TRIAL JUDGE CAN SUO MOTO ORDER THE JOINDER OF THE VESSEL M.V. WALVIS 7 AS A DEFENDANT IN THE SUIT?

 

I will adopt for the determination of this appeal the issues distilled by learned appellant’s counsel as they encompass all the complaints contained in the notice and grounds of appeal.

 

ISSUES ONE AND TWO

Whether having regard to the finding and acceptance by the learned trial judge that the respondent’s substantive suit was not validly commenced as an admiralty action in rem, the learned trial judge was wrong when he declined to strike out the said suit.

 

Whether having found and accepted that the vessel ‘M.V. Walvis 7’ was not a party to the substantive suit when the order of arrest of the said vessel was made, the learned trial judge was wrong when he declined to set aside the said order of arrest and failed to discharge the insurance bond. (covered by Grounds of Appeal Nos. 2, 3, 4 and 5).

 

Issue one dovetails into issue two and would be determined together. Learned appellant’s counsel argued that as shown on Pg.2 of the record, the Respondent commenced his action at the trial court as an Action in rem. Counsel submitted that being an action in rem, the respondent having not named the vessel as a party to the suit and having not accompanied his writ of summons with a statement of claim, the respondent’s action was incompetent and should have been struck out. Learned appellant’s counsel submitted that a combined reading of S.5(3) and (4) of the Admiralty Jurisdiction Act 1991, Cap A5 Laws of the Federation of Nigeria, 2004, Order 4 rule 2 and Order 2 Rule 2(1) of the Admiralty Jurisdiction Procedure Rules, 1993 shows that to constitute a valid Admiralty action in rem, such an action must name the respondent (in the instant case, the vessel) and has to be accompanied with a statement of claim.

 

Counsel submitted that the subsequent filing by the Respondent of the statement of claim shortly after the writ was filed did not cure the fundamental defect in the admiralty action in rem since breach of mandatory provisions of a statute renders any act based thereon null and void. He cited Tigris international Corporation v. Ege Shipping and Trading Industry (1999) 6 NWLR Pt. 608 Pg.701; NBC Plc v. Osofisan (2000) 10 NWLR Pt. 675 Pg. 370.

 

Learned Respondent’s counsel answered this issue under issue one of his brief. Counsel submitted that the provisions of S.5(3) and (4) of the Admiralty Jurisdiction Act 1991 Cap A5 Laws of the Federation of Nigeria,2004 and Order 4 Rule 2 and Order 2 rule 2(1) of the Admiralty Jurisdiction Procedure Rules 1993 do not raise jurisdictional but procedural issues. Learned counsel insisted that in an Admiralty claim a plaintiff has the option of proceeding against the defendant either in personam or in rem as the difference between either options is that of procedure. Counsel cited Tigris International Corporation v. Ege Shipping supra and RHEIN MASS UND SEE GMBH v. RIVWAY LINES Ltd (1998) 5 NWLR Pt. 549 Pg. 265 at 281.

 

Counsel argued that Order IV rules 1, 2, and 3 of the Admiralty Jurisdiction Procedure Rules make it possible for both vessel and other persons to be joined as defendants in an action in rem. It is also submitted that Order IV rule 5 of the Admiralty Jurisdiction Procedure Rules clothes the lower court with the jurisdiction to join any party to the action.

 

Counsel submitted further that by the provisions of Order IV Rule 1 of the Admiralty Jurisdiction Rules 1993 and S. 5(4) of the Admiralty Jurisdiction Act of 1991 the 2nd and 3rd defendants in the suit before the trial court are “relevant persons”. He referred us to the writ of summons at pages 2 and 3 of the records of appeal in which said writ of summons the defendants were sued jointly and severally. He argued that the “relevant person” is defined in the Admiralty Jurisdiction Act as a person who would be liable to the claim in a proceedings commenced on an action in personam. He cited M.V.S. Araz v L.P.G. Shipping S.A. (1996) 6 NWLR Pt. 457 Pg.720. Also he referred to S.5(4) of Admiralty Jurisdiction Act and Order IV Rule 1(1) 7 the Admiralty Jurisdiction Procedure Rules. In M.V.S. Araz & Anor. V. LPG Shipping supra the Court of Appeal held that by virtue of Order IV Rule 1(1) of the Admiralty Jurisdiction Procedure Rules the writ in an action commenced in rem must name the relevant person in relation to a maritime claim concerned as defendant and that the specification may be by reference to ownership or other relationship with the ship concerned.

 

Counsel insisted that the Respondent as Plaintiff had a sustainable claim against the named defendants and to strike out the suit of the plaintiff will amount to denying the plaintiff access to the courts which is his constitutionally guaranteed right. He opined that the non joinder of the vessel is a procedural irregularity which has been taken care of by ORDER XVII Rules 1 and 2 of the Admiralty Jurisdiction Rules.

 

On the non filing of the statement of claim with the writ of summons, learned respondent’s counsel argued that the suit of the respondent in the trial court was an action in rem. In an action in rem, the jurisdiction of the court is not invoked upon the filing and/or issuance of the writ of summons but until the vessel/ship or res is arrested. He referred to “ENFORCEMENT OF JUDGMENTS” by Chief Afe Babalola (SAN) at Pg. 307 wherein it was stated that in an action in rem the jurisdiction of the court is not invoked when the writ of summons is issued but when it is served on the ship and the warrant of arrest is executed. This is because an action in rem is against the very res itself and does not take effect until the ship or res is arrested.

 

He then urged us to hold that at the time the writ of summons was filed and issued without an accompanying statement of claim the jurisdiction of the lower court had not been invoked. The statement of claim dated 27/8/2008 filed in the suit can best be said to be irregularly filed and/or issued and which said irregularity has been cured by ORDER XVII Rule 1(1) and (21 of the Admiralty Jurisdiction Procedure Rules 1993. Learned appellant’s counsel argued that the learned trial decided not to discharge the order of arrest because it was spent having been executed since the appellant had provided an insurance bond and the order was merely voidable and not a nullity. Counsel submitted that the order of arrest was a nullity having been made without jurisdiction. He cited Messrs NV & Anor. V. The MV”S.Araz” (2000) 15 NWLR Pt. 691 Pg. 622; Chief Victor Odili v. M.V. Hemlock & Anor. NSC, Vol. IV 1990 – 1993, 63; Kokoro-Owo v. Lagos State Government (2001) NWLR Pt.723 Pg.237. He argued that it was wrong of the trial court to decide that a null order could not be set aside. He cited UAC v. Macfoy (1961) 3 All ER 1169. Counsel urged this court to set aside the null order of arrest and to discharge the insurance bond provided by the appellant for the release of M.V. Walvis 7.

 

Learned Respondent’s counsel argued that the order of arrest being spent cannot be revisited and is now an academic exercise. He cited Amanchukwu v. FRN (2009) All FWIR Pt. 465 at Pg. 1672 at Pg. 1677. Respondent’s counsel argued that the prayer sought is a repetition of an earlier one which had already been determined and is thus an abuse of court process.

 

He cited Abubakar v Bebeji Oil & Allied Products Ltd (2007) AFWLR Pt. 362 at Pg. 1855 particularly at 1902 – 1903 paras E-A; Ochika v. Kasumu (1967) 1 ANLR at Pg. 293 particularly at 301. The learned trial judge on this issue held thus at Pg. 64 of the record:

 

The learned trial judge held on Pg. 61 of the record thus:

“Again on the issue of failure to join the vessel, M.V. Walvis 7 as a defendant in what is supposed to be an admiralty action in rem, the question which arises in view of the plaintiffs claim which I have earlier set out… and which is “joint and several” against the named defendants is the same question which the Court of Appeal, per the Late Hon. Justice A.O. Ige, JCA (of blessed memory) asked in Tigris International Corp. v. Ege Shipping & trading Ind. Inc. & 3 Ors. (1999) 6 NWLR Pt.608 Pg.701 at 721 C-D is:

What happened to the named defendants on the writ of summons as regards the plaintiffs claim if, because of the failure to join the vessel, the entire action has to be struck out? The 2nd and 3rd defendants (by para. 3 of their Affidavit in Support of the Motion) are in my view “relevant persons” by the provisions of Order IV Rule 1 of the Admiralty jurisdiction Procedure Rules, 1993 and S.5(41 of Admiralty Jurisdiction Act, 1991. To strike out this action merely because the vessel was not named or joined as a defendant is to deny the plaintiff access to justice with regard to his claim (which is “joint and several”) and which I hold is sustainable against the named defendants. See Afe Babalola’s “Enforcement of judgments”, Pg.304.”

 

Let us consider the fact that the respondent commenced the action headed “Admiralty Action in Rem” by writ of summons on 17/8/2001. The endorsement on the writ of summons is as follows:

 

The plaintiff claim the sum of N9, million (Nine million Naira) from the defendants jointly and severally.

 

The plaintiff is the owner of four fishing nets and other fishing equipments in set in four different locations along the sea at the break water before the Escravos bar mouth.

 

The said four fishing nets were being operated/manned by the plaintiffs workers on the 13th June, 2001 at the said break water before Escravos Bar Mouth when the M.V. Walvis 7 which ship is owned by the 2nd and 3rd defendants but was under the control/Navigation of 1st defendant as the ship Captain left its normal Navigational Route due to the negligence of defendants, their servants, and agents and damaged the plaintiffs said fishing nets and equipments at the aforesaid break water before the Escravos bar mouth a place within the jurisdiction of this Honourable Court.

 

WHEREFORE, the plaintiff’s claim the total sum of N9 million Naira from defendants as damages.

 

The respondent filed along with the writ a motion ex parte. The order of arrest of the vessel M.V. Walvis 7 was obtained on the basis of the writ of summons. The small point in controversy between the parties on this issue is whether or not the action was inherently incompetent because the action was initiated without the vessel being joined as a party and without filing the statement of claim along with the writ. It is important to set out the prayers sought by the appellants in the motion dated 16/4/2003.

1. An order striking out this suit on the ground that it is incompetent.
2. An order setting aside the purported order of arrest of the vessel M.V. Walvis 7 on the ground that the court lacks the jurisdiction to make the order given the nature of the action.
3. An order discharging the Insurance Bond for the sum of N4,000,000 provided by the 3rd Defendant/Applicant in this suit.

 

Let us look at what the apex court has said on this point. In PHEIN MASS UND SEE GMBH VS. RIVWAY LINES Ltd. cited supra, Ogwuegbu JSC explained the position thus:-

“An action in rem is a piece of legal machinery directed against a ship alleged to have been the instrument of wrongdoing in cases where it is sought to enforce a maritime or statutory lien or in a passessory action against the ship whose possession is claimed. A judgment in rem is a judgment good against the whole world. This does not mean that the vessel is the wrong doer but that it is the means by which the wrongdoer (its owner) has done wrong to some other party. It is the means by which the wrongdoer is brought before the court as a defendant. It is an accepted legal theory that an action in rem is procedural. The purpose is to secure the defendant owner’s personal appearance. An action in personam is directed against the person at fault and is dependant entirely upon the plaintiff being able properly and effectively to serve a summons on the defendant in connection with the legal complaint against the defendant particularly when the parties are in different jurisdictions. Therefore, the maritime shipping industry contain within its sphere the concept of legal action available to an inured party through the machinery of the Admiralty Jurisdiction which allows, under certain clearly defined circumstances, the vessel to be sued in rem. An action in rem can be concluded by a judgment in rem. The ship owner may take part in the proceedings if he considers it appropriate to defend his property. It is essentially an action against his property (in rem) not against him. Thus, it can be seen that the distinction between action in rem and action in personam is procedural only. Except in certain claims, the same cause of action may give rise to both actions depending on which action the plaintiff initiates having regard to the procedural difficulties involved.”My own understanding of the law, the rules of court and the precedents is that where the vessel is the means by which the wrongdoer (its owner) had done wrong to some other party, it is the means by which the wrongdoer – the  defendant is brought to court as a defendant. In such a situation, the circumstances dictate an action in rem which allows a legal complaint to be pursued especially where parties are in different jurisdiction. It is when a proper action in rem has been constituted that an order can be made against the vessel. The admiralty laws both local and international recognize the vessel as a separate legal entity. Admiralty courts assume jurisdiction by virtue of the presence of the vessel in its territorial jurisdiction irrespective of whether the vessel is national or not and whether registered or not and wherever the residence or domicile of their owners may be. A vessel is usually arrested by the court to retain jurisdiction. Thus a ship is arrested so as to obtain a pre-judgment security for a claim so that a judgment given in favour of an arrester may be secured by means of some guarantee acceptable to both the court and the arrestor in place of the vessel or “res”. See MV Da Qing Shan” v. Pan Asiatic Commodities (1991) 8 NWLR Pt 209 Pg. 354 at 366-7. Technically, I cannot fault the arguments of the appellants that since the action was one instituted in rem, the Respondent should have joined ab initio, the vessel as a party moreso that it instantly obtained an order ex parte against the vessel at the time it was not yet a party to the action.I agree that the order arresting the vessel in an admiralty action in rem without joining the vessel was improper. This is clearly borne out by the opinion of Chief Afe Babalola, SAN on Pg. 307 of his book “Enforcement of Judgments” where it is stated as follows:

“It must be noted that in an action in rem the jurisdiction of the court is not invoked when the writ of summons is issued but when it is served on the ship and the warrant of arrest is executed. This is because, an action in rem is against the very res itself and does not take effect until the ship or res is arrested.”

 

If the writ of summons served on the ship to effect its arrest does not make the vessel a party, then what was the basis of the arrest of the vessel? However, the failure of the Respondent to join the vessel ab initio ordinarily would not render the action incompetent to rob the trial court of its admiralty jurisdiction over the parties in the dispute.

 

Be that as it may, S.5(2)-(a) of the Admiralty Jurisdictions Act 1991 Cap A5 Laws of the Federation 2004 provides as follows:

5. Mode of exercise of admiralty jurisdiction:

(1)     Subject to section 5 of this Act, an action in personam may be brought in the court in all cases within the admiralty jurisdiction of the court.

(2)     In the case of a claim as is mentioned in S.2(2)(a) or S.2(3)(u), or a question as is mentioned in S.2(2)(b) of this Act, an action in rem may be brought in the court against the ship or property in connection with which the claim or question arises.

(3)     In any case in which there is a maritime lien or other charge on any ship, aircraft or other property for the amount claimed, an action in rem may be brought in the court against that ship, aircraft or property, and for the purpose of this subsection, “maritime lien” means a lien for-

(a)     salvage; or

(b)     damage done by a ship; or

(c)     wages of the master or of a member of the crew of a ship; or

(d)     master’s disbursements.

(4)     In any other claim under S.2 of this Act, where the claim arises in connection with a ship and the person who would be liable on the claim in an action in personam (in this Act referred to as “the relevant person”) was, when the cause of action arose, the owner or charterer of or in possession or in control of the ship, an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought against-

(a)     that ship, if at the time the action is brought the relevant person is either the beneficial owner of that ship in respect of all the shares in it or the charterer of the ship under a charter by demise; or

(b)     any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner in respect of all the shares in the ship.

 

Order XVIII R(1) & (2) of the Admiralty Jurisdiction Rules paid pursuant to the Admiralty Jurisdiction Act provides as follows:

 

NON COMPLIANCE WITH RULES:

“ORDER XVIII 1(1)          Where in beginning or purporting to beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding, there has by reason of anything done or left undone, been a failure to comply with the requirement of these rules whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, step taken in the proceedings, or any document, judgment or order therein.

(2)     Subject to paragraph 3 of Rule (1) of this order, the court may on the ground that there has been such a failure as is mentioned in paragraph 1 of rule 1 of this order and on such terms as to costs set aside either wholly or in part the proceedings in which failure occurred, any step in those proceedings or any documents, judgments or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

(3)     The court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.

 

In Tigris Int. Corp v. Ege Shipping supra, Oguntade JCA (as he then was) preferred the view that S.5(4) of the Admiralty Jurisdiction Act does not raise a jurisdictional matter but a procedural one. Thus the jurisdiction of the Federal High Court cannot be challenged because a claim was made in rem while it should have been made in personam or vice versa.However, the facts of this case are different. In this case, the statement of claim was not filed with the writ as required by law. The jurisdiction of the court to adjudicate over the ship cannot be invoked until a writ of summons was issued and served on the ship. Subsequently, a warrant of arrested can be executed. The opinion of the learned trial judge on Pg. 62 of the record is as follows:

“By providing the insurance bond which was issued on the basis of their, i.e. defendants’ own motion on notice dated 12th September, 2001, the question as to the validity or otherwise of the order of arrest of the vessel (which has been heard by this court and the vessel having been released) is as far as I am concerned, an academic exercise. This court has no jurisdiction to dwell on matters that are academic in nature.”

 

The learned trial judge on the same page expressed the view that there is a distinction between a court which erroneously procedurally exercised jurisdiction it has and a court that exercised or rather usurped jurisdiction it did not possess ab initio. His Lordship opined that such orders which were made in exercise of jurisdiction but erroneous procedurally are merely voidable and not void ab initio or a nullity. His Lordship relied on the view that the distinction between an action in rem and an action in personam is merely procedural.

 

Let me just say quickly here that given the facts of this case, there is no doubt that the Respondent was right to file an action in rem jointly and severally against the owners of the ship. However, the jurisdiction of the court to arrest the ship could not have been activated until a writ of summons was issued and a statement of claim was served on the said ship. I find that as attractive as the argument of the learned trial judge was in trying to reduce delay in the trial of the suit at the trial court, sometimes justice rushed can become justice crushed. If as the learned respondent’s counsel conceded on pg. 4 of the Respondent’s brief, the jurisdiction of the trial court had not been invoked when the writ of summons was filed without the statement of claim, then it stands to reason that the warrant of arrest executed on the ship was irregular and should be set aside. The orders of arrest of the ship without any claim being made against it cannot be justified by the invocation or Order VXIII of the Admiralty Procedure Rules. Oguntade JCA (as he then was) opined on pg. 717 paragraph F of Tigris Intl. Corp v. Ege Shipping supra that an action in rem has special attraction the world over and that –

“Unless the procedure is controlled or regulated in some form, all claimants may even in undeserving cases opt for an action in rem in order to enjoy its advantages.”

 

The learned trial judge on this issue held at Pg. 64 of the record and Pg. 11 of the ruling as follows:

‘The plaintiff’s suit was on the face of the writ of summons instituted as an “admiralty action in rem” although the vessel, M.V. Walvis 7 which is in fact the “res” was not made a party. But the plaintiff had notwithstanding this procedural omission, successfully obtained an order of arrest of the said vessel.

 

Are the Admiralty courts then to engage in in judicial and injudicious exercise of discretion which we are expected to condone as being fait accompli? I do not subscribe to that.

 

I cannot agree with the learned respondent’s counsel that the order being spent could not have been set aside by the trial court. The order of arrest was still extant because the appellants had submitted a bond to secure the release of the vessel. The bond and the guarantee was to secure the attendance of the vessel or its owners effectively arresting the vessel. I agree that the order of arrest of the ship being void ab initio, it is not relevant that the appellant obtained an order by which it provided an insurance bond in order to release the vessel from arrest. There is no doubt that acquiescence waiver or consent does not confer jurisdiction on a court that did not have the competence to make the order. See Mrs. Matilda Aderonke Dairo v. UBN & Anor.(2007) 15 NWLR Pt. 1059 Pg.99.

 

We must make a distinction here whether the failure to file the statement of claim with the writ can be swept aside as a mere procedural irregularity or one that goes to the jurisdiction of the trial court to make the said order. I am of the firm view that the jurisdiction of the court against the initial Defendants/Appellants was irregularly activated, in that no statement of claim was filed with the writ of summons. However, that irregularity can be cured by the application of Order XVIII r 1 of the Admiralty Procedure Rules. However, the order of arrest of the ship was clearly made without jurisdiction ab initio. I do not think the patent injustice in executing an ex parte order against a non party to a suit can be cured by hiding under the general provisions saving irregular actions. Such irregular actions in my view can only be saved if they have not occasioned miscarriage of justice.

 

An order made within jurisdiction is not invalid or a nullity even if it is erroneous in fact or in law or even perverse. See General Aviation Services Ltd. v. Captain Paul M. Thahal (2004) 4 SCNJ 89; (2004) 10 NWLR Pt. 880 Pg.50. What I am trying to say is that I cannot agree that the suit though irregularly commenced, cannot be saved. In that regard, I answer the first issue in the negative. In that the learned trial judge was right in refusing to make an order striking out the suit.

 

However, on the second issue, I answer in the affirmative that the learned trial judge was wrong in refusing to discharge the order of arrest made on the vehicle and to discharge the insurance bond executed.

 

Having regard to the whole circumstances of this case, the first issue is resolved against the appellants while the second is resolved in their favour.

 

ISSUE THREE

Whether the learned trial judge was wrong to have relied on a purported unread draft ruling of the former Presiding Justice of the Court and the conclusions of the letter in respect of the Appellant’s Motion on Notice. (Covered by Grounds of Appeal No. 5).

 

On this issue, learned appellant’s counsel argued that it was wrong of Hon. Justice Kolawole to have made use of and adopted the draft ruling of the Hon. Justice A.O. Ajakaiye and thus take into consideration extraneous matters. He argued that the Federal High Court is constituted by a single judge and not two judges. He cited S.23 of the Federal High Court Act Cap F12 Laws of the Federation of Nigeria, 2004; Bisong v. Ekpeyong (2003) 5 NWLR Pt. 812 Pg.156 at 163 – 164, D. He urged the court to exercise its powers under S.15 of the Court of Appeal Act and to consider and grant the motion of notice dated 16/4/2003.

 

Learned respondent’s counsel argued that there is no rule of practice and/or law which prohibits a trial judge from looking at a draft of an undelivered ruling of a learned brother in the same matter and adopting his opinion as his ruling in the matter. He also submitted that the appellants have not been able to show that the trial judge’s looking at and adopting the opinion of his learned brother occasioned a miscarriage of justice in the matter. He submitted that the draft undelivered ruling of the former judge also forms part of the records of the court and the courts are enjoined to take judicial notice of same. He cited S.74(1) of the Evidence Act.

 

The learned trial judge on this issue stated thus at Pg. 57 of the record:

“It is in this regard, and having the benefit perhaps the advantage of the draft Ruling which had been prepared but undelivered by my learned brother, Hon. Justice A.O. Ajakaiye that he has adequately addressed the issues canvassed in the defendant’s motion on notice dated 18th March, 2002 which he heard and whose prayers were similar to the new motion on notice dated 16th April, 2003″… (opinion of Hon. Justice A.O. Ajakaiye set forth)

 

I unhesitatingly adopt his opinion as my ruling and same is herewith reproduced as part of the Ruling on the defendant’s motion on notice dated 16th April, 2003”.

 

I have to agree with the learned counsel for the appellant that the procedure adopted by the learned trial judge in undeniably and enthusiastically incorporating the opinion of another judge in his own ruling is completely irregular and unknown to our jurisprudence. Even as a Barrister or Solicitor, you are professionally bound by any process or opinion you execute. As a judicial officer who had sworn the judicial oath, it is not open to you to incorporate another judge’s opinion in your judgment. Even at the appellate level, where justices sit in panels of more than one judge, a justice of the Court of Appeal or the Supreme Court is still obliged to render his own opinion in writing and is free to adopt the opinion of a brother judge who was on the panel who took the appeal. Thus, the constitution of a court must be maintained in proceedings until judgment is delivered. It is not proper for a judge who was not in a panel that heard witnesses or the parties in an appeal to write a judgment in the case. I find the suggestion of the importation of another judge’s opinion into the judgment or ruling delivered preposterous. It is an entirely different thing if Justice Ajakaiye delivered a ruling and Justice Kolawole decided to be persuaded by his reasoning and adopted same in His own ruling. Justice Ajakaiye did not take part in the proceedings which led to the ruling being appealed against, the importation of his opinion into the ruling when he did not participate in the proceedings clearly renders the ruling invalid. There is no direct authority on this point but there are Supreme Court authorities akin to the principles of fair hearing so entrenched. See Wayo Ubwa & Ors. V. John Yaweh & Anor. (2004) 5 SCN I 210; (2004) 11 NWLR Pt.884 Pg. 427; Sokoto State Government & Ors. V. Kamdex Nig. Ltd. (2007) 3 SCNJ 94; (2004) 5 SC Pg. 49; (2007) 7 NWIR Pt. 1034 Pg. 466. This issue is resolved in favour of the appellants.

 

ISSUE FOUR

Whether the learned trial judge erred when without hearing and determining the respondent’s application to join the vessel M.V. Walvis 7, he, suo motu, ordered that the said vessel be joined as defendant in the suit.

 

On this issue, appellant’s counsel complained that the learned trial judge suo motu granted without hearing the parties the Respondent’s motion dated 17/9/2001 and ordered the joinder of the vessel. He argued that the trial court lacked the jurisdiction to make the order of joinder having violated the rules of natural justice and S.35(1) of the 1999 Constitution. He cited Agbabiaka v. FBN Plc (2007) 6 NWLR Pt. 1029 Pg. 25; Eastern Breweries Plc v. Inuen (2000) 3 NWLR Pt. 650 P9.662; Ezuma v. Nkwo Market Community Bank Ltd. (2000) 10 NWLR Pt. 676 Pg. 638; Dide v. Seleiletimnibi (2008) 15 NWLR Pt. 114 Pg.221, 244 B-H; MFA v. Inoneha (2005) 7 NWLR Pt. 923 Pg.1; Zaboley International Ltd. V. Omogbeha (2005) 15 NWLR Pt. 953 Pg. 200, 227 para. D-G.

 

The Respondent on this issue argued that by the combined provisions of Order 54 Rule 1 and Order 12 Rules 3, 5(1) and 15 of the Federal High Court (Civil Procedure) Rules 2000 the learned trial judge was clothed with the requisite power and jurisdiction to suo motu order the joinder of M.V. Walvis 7 as a defendant in the suit. He cited Crown Flour Mills v. Olokun (2007) All FWLR Pt. 393 Pg. 24 at 64-65 where the court per Agube JCA in interpreting the provisions of Order II Rule 5(1) of the Kwara State High Court Rules which is in pari materia with Order 12 Rule 5(1) of the Federal High Court (Civil Procedure) Rules 2000 held that the court has inherent power to suo motu join any party whose interest would be affected and whose presence will enable the issues in the suit to be effectually determined once and for all. He urged the court to dismiss the issue as lacking in substance.

 

The learned trial judge relied on Order 54 r 1 and Order 12 rules 3, 5(1) and 16 of the Federal High Court (Civil Procedure) Rules 2000.

 

Order 12 Rule 5(1) of the Federal High Court (civil procedure) Rules 2000 –

if it appears to the court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be.

Order 54 Rule (1) of the Federal High Court (civil procedure) rules 2000

Subject to particular rules, the court may in all causes and matters make any order which it considers necessary for doing justice, whether the order has been expressly asked for by the person entitled to the benefit of the order or not.

 

There is no doubt that it is the right and even the duty of a trial judge to raise an issue suo motu in pursuit of justice. See ACB v. Losada Nig. Ltd. & Anor (1995) 7 SCNJ 158; (1995) 7 NWLR Pt. 405 Pg.26 However, where an issue is raised suo motu, it is not proper for a court to consider it unless it has afforded all parties an opportunity of addressing on it. See Arjay Ltd. & Ors. V. Airline Management Support Ltd. (2003) 2 SCNJ 148; (2003) 7 NWLR Pt. 820 Pg. 577; State u. Moshood Oladimeji (2003) 7 SCNJ 67; (2003) 14 NWLR Pt. 839 Pg.57.In this case, there was already a pending motion to join the vessel, but it was not the motion taken on which ruling was delivered. No doubt the rules provide that the court can join necessary or even desirable parties to a suit, however where the court raises the issue suo motu, parties must be allowed to address the court on it before the court can pronounce on it. Where a party has raised joinder by way of motion as in this case, the court must willy nilly give both parties the opportunity to address it on such a motion. The judge who raises an issue suo motu and did not give parties an opportunity to address on it has breached the rule of fair hearing. The provision in the rules giving the court the right to join parties at his Lordship’s discretion and as circumstances dictates is not at large. The discretion to order joinder must be exercised judicially and judiciously. In this case it was not so exercised. I resolve this issue in favour of the appellant.

 

ISSUE FIVE

Whether the award of N10,000.00 costs by the learned trial judge was wrong and should be set aside by this Honourable Court (covered by Ground of Appeal No. 7).

 

Learned appellant’s counsel complained that the lower court awarded the sum of N10,000.00 costs against the appellant. He submitted that though award of costs is at the discretion of the court, being a judicial discretion, it must be exercised judicially and judiciously on established principles and not arbitrarily. Where the exercise by a lower court of its discretion is perverse, oppressive or arbitrary, in appellate is entitled and has a duty to interfere with the exercise of that discretion. He cited Ushae v. COP (2005) 11 NWLR Pt. 937 Pg.499; MFAv. Inongha (supra) Pg.24, para E-F. and cited Francisv. Osunkwo (2001) 7 NWLR Pt. 666 Pg. 564 at 583.At Pg. 66 of the record, Mr. Obieroma left the issue of costs to the discretion of the court when Mr. Ogunbeje asked for costs of N20,000.00. On principle there was nothing perverse, oppressive or arbitrary in the award of N10,000.00 costs against the appellant at the trial. However, if the basis of the costs is discharged on appeal, then the award of costs is also discharged. The success of that issue actually depends on the success of the appeal.

 

In view of my various findings and humble opinion on each issue set out above, I make the following orders:

(1)     The order of arrest of the vessel M.V. Walvis 7 is hereby set aside.

(2)     The Insurance bond entered into by the Appellants to secure the release of the vehicle is hereby discharged.

(3)     The order of joinder of the vessel is hereby set aside.

 

In the circumstances, I allow the appeal in part and set aside the orders of the trial court in Suit FHC/B/CS/174/2001 made on 12/3/2004. The suit is sent back to the trial court to be heard before another Judge of the Federal High Court. No order as to costs.

 

 

SIDI DAUDA BAGE, J.C.A.;

I read in draft the leading Judgment of my learned brother H.M. OGUNWUMIJU, JCA, just delivered, I agree with the reasonings and the conclusions reached, as contained in the leading Judgment. I am at one with all the findings of this court in this Judgment. I also allow the appeal in part, and set aside orders of the trial court in Suit No. FHC/B/CS/174/2001 made on 12/3/2004. I too remit back the suit to the trial court to be heard before another Judge of the Federal High Court.

 

TOM SHAIBU YAKUBU, J.C.A.;

I had a preview of the judgment just rendered by my Lord, HELEN M. OGUNWUMIJU, JCA; who to my fullest satisfaction, illuminatingly and extensively dealt with all the issues thrown up for determination in this appeal. I have nothing more useful to add to it, hence I agree that the appeal is not lacking in merits. I, too allow it in Part.

 

I, abide by the order as to re-trial at the trial Federal High Court, as contained in the lead judgment, accordingly.