3PLR – M.V DA QING SHAN V. ASSAN OIL LIMITED
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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M.V DA QING SHAN
V.
ASSAN OIL LIMITED
COURT OF APPEAL
(ENUGU DIVISION)
TUESDAY, 2ND JULY, 1991.
SUIT NO. CA/E/55/91
3PLR/1991/99 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
ALOYSIUS IYORGYER KATSINA-ALU, J.C.A. (Presided)
SAMSON ODEMWINGIE UWAIFO, J.C.A. (Read the Leading Judgment)
VICTOR JAMES OBANUA CHIGBUE, J.C.A.
BETWEEN
- M/V “DA QING SHAN”
- CHINA OCEAN SHIPPING COMPANY (OWNERS OF M/V “DA QING SHAN”)
- MASTER OF THE VESSEL MV “DA QING SHAN”
AND
ASSAN OIL MILLS LIMITED
REPRESENTATION
Jimi Oduba, ESQ. (with him, Yinka Faji, ESQ. and Tayo Adesigun, ESQ.) – for the Appellants
Fola Sasegbon, ESQ. – for the Respondents
MAIN ISSUES
PRACTICE AND PROCEDURE – APPEAL – Error committed by trial court – Whether every error must lead to reversal of judgment – Relevant considerations.
PRACTICE AND PROCEDURE – APPEAL – Ground of appeal – Framing of – Ground complaining that “The whole decision is wrong and cannot he supported in law” – Whether proper.
PRACTICE AND PROCEDURE – APPEAL – Ground of appeal – Need to confine appeal to relevant issues.
PRACTICE AND PROCEDURE – APPEAL – Ground of appeal – What it should represent.
PRACTICE AND PROCEDURE – COURT – Duty on court to refrain from deciding abstract questions of law.
PRACTICE AND PROCEDURE – COURT – Judgment of court – Correct conclusions reached therein – Whether vitiated by wrong reasoning.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Error committed by trial court-Whether every error must lead to reversal of judgment – Relevant considerations.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Judgment of court – Correct conclusions reached therein – Whether vitiated by wrong reasoning.
WORDS AND PHRASES – “Aggrieved person” -Who is.
MAIN JUDGEMENT
UWAIFO, J.C.A. (Delivering the Leading Judgment):
Owing to the urgency of this matter this appeal was heard on the bundle of documents compiled by the appellants who are the defendants in a pending suit No. FHC/CA/3/91 at the Federal High Court, Calabar. The normal periods for filing briefs were severely curtailed by agreement of counsel. The appeal is against a ruling of Auta, J., given at the said court on 9 April, 1991.
In that court the plaintiffs sued for the sum of US $300,289.18 for breach of contract to load the full cargo of copra of 6833 metric tons on board the vessel MV DA QING SHAN from the Philippines, bank charges, loss of profit, guarantee fee, fee to confirming bank, refusal and delay in delivering the Bills of Lading, fraud, misrepresentation and negligence by the defendants. A second relief is for specific performance by amending the manifest to reflect the 14 Bills of Lading issued in Singapore. The final relief is for an order that the cargo be released to the plaintiffs forthwith.
The plaintiffs then filed an ex parte motion to have the said vessel which then berthed at Berth No. 4 Calabar Port/Quays, pending the determination of the said suit, arrested. On 18 March, 1991, the court issued a warrant of arrest and detention. The ship was accordingly arrested and detained by the Admiralty Marshal. On 21 March, 1991, the defendants applied for:
“(a) An order for the release of the MV DA QING SHAN/setting aside the order for the arrest and detention of the MV DA QING SHAN dated 18th March, 1991.
(b) Such further order or orders as the Court may seem just.”
On 9 April, 1991, the learned judge made an order releasing the said vessel from detention on condition that security by way of guarantee or undertaking by a Bank or Insurance Company was given by the defendants/applicants (now appellants).
The complaints against this order are contained in five grounds of appeal. I shall set those grounds out, on purpose, but without their particulars. They read:
“(a) The learned Trial Judge erred in law when he held that the order of arrest and detention made ex parte in relation to the 1st Appellant/ Defendant on 18/3/91 was neither an interlocutory order nor did the order amount to an interlocutory injunction.
(b) The Learned Trial Judge erred in law when he defined an interlocutory injunction as one granted only after due contest inter parties (sic).
(c) The learned Trial Judge erred in law when he held that in making an order of arrest ex parte, there is no need to obtain from the Plaintiff procuring such ex parte order, an undertaking in damages.
(d) The Learned Trial Judge erred in law when he held that the Plaintiff/ Respondent in its ex parte application to arrest and detain 1st Defendant, had shown a prima facie case to warrant the making of an ex parte order of arrest against the Defendant/Appellants.
(e) The whole decision is wrong and cannot be supported in law.” Four issues for determination were set down in the appellants’ brief as follows:
“(1) Is an order made on an application ex parte in current proceedings not an interlocutory order when such order has not finally determined the rights of the parties in the Proceedings?
(2) Is an order of court to arrest and detain a vessel an injunctive order and if not, is such order of the same class as an injunction?
(3) Does the decision of the Supreme Court in KOTOYE V. C.B.N. & ORS. (1989) 1 N.W.L.R. (PL98) 419 in relation to the requirement of an undertaking in damages from an applicant for an ex parte order cover an applicant for an ex parte order in relation to a vessel?
(4) In a claim for damages arising from the carriage of goods by sea can a ’notify party’ in a Bill of Lading show a prima facie case in relation to the goods?”
Perhaps it is useful to quote the relevant passage in the ruling appealed from to know the result of the decision. That will determine the purpose this appeal can possibly serve. The passage inter alia reads:
“I believe I have commented on all the points raised by the Parties and also expressed my opinion and I find no reason adduced by the Applicants to make me set aside the order made ex parte by this court as requested by Applicants, because it was not obtained unlawfully or under a misrepresentation. But I find that it will, however, not serve any useful purpose to detain the ship any longer. The essence of such an order is to compel the appearance of the other party or to secure a security to any order or judgment that may be made by the court. So that the order of the court will not come to naught. The parties have now appeared and what else ……………….I therefore order that the vessel `MV DA QING SHAN’ be released, provided that the Defendants/Applicants provide security by way of guarantee or undertaking by a Bank or an Insurance Company or any other Corporation of repute in Nigeria in the sum of $300,289.19 or its Nigerian equivalent.”
The respondents filed a notice of intention to raise a preliminary objection. In it, they state that the decision in question being in favour of the appellants cannot be impeached by them. Further, that ground (d) is of mixed facts and law at best, and so requires leave of court; and that ground (e) is incomprehensible, and at best is of mixed facts and law requiring leave of court. After the appellants received the notice of objection, they sought leave in respect of the said grounds (d) and (e) to be filed and argued as grounds of facts or mixed law and facts. This was through their application filed on 6 June, 1991, the very morning the hearing of the appeal was fixed for. The application was granted that day.
It seems to me however that in spite of the leave granted, ground (e) is not a ground of appeal at all. “The whole decision is wrong and cannot be supported in law” neither complains of any specific error in law nor error on the facts nor is it a complaint based on mixed law and facts. It means nothing. It is a complaint at large against a judgment and the fact that certain particulars are stated thereunder does not change the character of the complaint. I therefore strike out this ground and ignore the argument on it.
But I think a more fundamental objection to this appeal is whether it arises at all from the decision of the lower court. The court obviously granted the request of the appellants to release the vessel in question. What happened was that it granted it on condition that a guarantee be provided. Surprisingly the grounds of appeal do not complain against this order as to whether it should be made on condition. The issues raised for determination in this appeal seem to be on a wild goose chase. They talk of whether an ex parse order is not an interlocutory order; whether an order of arrest and detention is not an injunction; whether an ex parte order to arrest and detain a vessel requires an undertaking in damages; what the position is when damages are claimed in connection with a Bill of Lading.
It is quite mystifying the nature of arguments canvassed before this Court in the appellants’ brief on these issues and the length of time taken in the oral arguments. In the appellants’ brief, it was contended that: “The Judge should have on the evidence held that no prima facie case having been made out there is no basis for the arrest order sought. Appellants therefore urge the Court of Appeal to set aside the ruling of AUTA, J. of 9/4/91 refusing to release MV DA QING SHAN and order the unconditional release of the vessel.” There are two areas of misconception here. First, the learned judge did not refuse to release the vessel. He did so on condition. A conditional release is not a refusal. Second, there is no appeal against the conditions imposed. There is no single ground of appeal challenging the imposition of those conditions.
The first question I ask myself is, whether this appeal has been properly directed against the order of the court under reference. In an attempt to answer this obviously simple question, I shall refer to the case of The Retarded Children’s Aid Society, Ltd. v. London Borough of Barnet (1969) 1 All ER 300. The facts shortly were that the appellants, a charity, ran three homes for mentally retarded children. The numbers of children to be accommodated therein were restricted in the certificate of registration of those homes which was issued by the respondents. The appellants later applied to the respondents for permission to accommodate more children. The respondents in response granted permission to accommodate fewer children than the appellants had requested. They appealed to the appropriate justices who held that under the relevant statutory provisions of the National Health Act they had no jurisdiction to hear the appeal.
On further appeal, the question arose whether it was an appeal against not granting the application up to the number of children requested or against refusal of the application. It was important to resolve that question as that would determine whether there was a semblance of the nature of appeal that could lie in view of the said statutory provisions. Lord Parker, C.J., observed at page 303:
“The point, as I see it, is that when an appeal is given on an order refusing an application for registration, is the application which is refused an application for registration simpliciter, or is it an application for a particular number of persons of a particular age and so on to be accommodated in the premises to be registered? I confess that I do not find this an easy question, and my mind has wavered during the course of argument with a strong feeling that there ought to be an appeal to the justices against what I may call the conditions, otherwise it can be said that the respondents can impose purely arbitrary conditions.”
The appeal was however considered incompetent because of the provisions of the Act, it having, in any case, been brought as if the application for registration had simply been refused. Looking at it, it was in fact not refused but granted, in effect, on condition that the number of persons to be accommodated in the premises was restricted. The observation of Lord Parker, C.J., serves, I believe, as a helpful analogy to the present case.
It seems to me that the appellants in the present case ought to have appealed against the conditions imposed in the order of release of the vessel if they were aggrieved with them. In the nature of the appeal filed by them, were they really aggrieved persons complaining of a refusal to release the vehicle when there was in fact no refusal, and going about it by arguing extraneous matters? I do not think they are aggrieved persons who can be heard in the circumstances. An aggrieved person must include persons with a legal grievance and who complains of an order made wrongfully against him or to affect his right. He must be a person, in my view, who, with the right standing, properly complains against such an order and not against something else which cannot alter that order. Hence he must have a legal grievance. In Re sidebotham, Ex parte Sidebotham (1880) 14 Ch. D 458, James, L.J., said:
“But the words ‘person aggrieved’ do not really mean a man is disappointed of a benefit which he might have received if some other order had been made. A ‘person aggrieved’ must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.”
In the present case, the appellants have not shown what they have been wrongfully refused by the order of the lower court. They cannot possibly show this if they have not complained against that order. Rather than appeal against the conditions attached to the order of release of the vessel, the appellants raised what at best are abstract questions of law for the decision of this Court. This is not a fit duty to be performed by the Court. To quote Warrington, LJ., usefully on this point in Stephenson, Blake & Co. v. Grant, Legros & Co. (1917) 86 L.J. Ch. 439 at 440. “The function of the Court is not to decide abstract questions of law, but to decide questions of law when arising between the parties as the result of a certain state of facts. I will only refer to two of the questions which are asked here. The first is, ‘whether a design for a fount of type is properly the subject-matter of registration as a design?’ That is not a question which, in my judgment, the Court can answer. The question which the Court has to answer is whether a design which is propounded by the plaintiffs can be the subject matter of registration as a design. So with regard to the fourth question: ‘Whether a specimen sheet, containing words and letters illustrating the type faces for a fount of type, can be the subject-matter of copyright as industrial. designs under the Patents and Design Act, 1907, or the earlier Copyright of Design Act?’ The question, and the only question, which the Court ought to decide is’ whether the particular specimen sheet which is alleged to give a copyright gives any, and, if so, what copyright.”
It will be clearly seen that it serves no purpose when complaining in an appeal to travel outside the sphere of the real issues. They must be the issues that when resolved in favour of the appellant will affect the decision complained of in the appeal. Unless they are live issues based upon the facts of the case and relevant to the final result of the judgment or order, any other issues become academic or hypothetical. They will not be entertained by the courts. Our courts do not decide issues which achieve nothing; nor does the Constitution confer them with advisory jurisdiction.
The only question which this Court ought to have been invited by the appellants to decide is whether there was justification in attaching a condition of guarantee to the release order. Not having done so this Court is powerless to go into that. It is not every error that was committed by a trial court that will lead to the reversal of its decision on appeal. The error must affect the result of the decision or occasion a miscarriage of justice: see Olubode v. Salami (1985)2 NWLR(Pt.7) 282 at 297 per Coker J.S.C.; Mercantile Bank Ltd. v. Adalma (1990) 5 NWLR (Pt.153) 747 at 767 per Oguntade J.C.A. In other words, aground of appeal should represent the complaint of an appellant against a decision taken against him in the lower court and not in respect of obiter dicta made in the course of it: see Saude v. Abdullahi(1989) 4 NWLR(Pt.116) 387 at 429 and 431 per Oputa, J.S.C. Again, if the conclusion reached by a court is correct, it is not affected by the fact that it was arrived at on some wrong reasons: See Ayeni v. Sowemimo (1982) 5 S.C. 60 at 74-75; Abaye v. Ofili (1986) 1 S.C. 231 at 329-330; (1986) 1 NWLR(Pt.15) 134.
What the appellants did in this case was to pick on what the learned trial judge did or said without complaining about the effect of that on the order he made. That took them nowhere and was incapable of invoking the powers of this Court to intervene. In Ejowhomu v. Edok-Eter Mandilas Limited (1986) 5 NWLR (Pt.39) 1 at 30-31 Obaseki J.S.C. said:
“A trial court may have committed grave errors in its judgment in a manner which stirs the informed mind of the appeal court Judges for correction, but it is settled law that if the parties to the matter are satisfied with the judgment, there is nothing the Justices of the Court of Appeal can do. The Justices can only maintain studied silence or observe that there was no appeal before them on the point. If one of the parties is aggrieved and decides to appeal on grounds which do not raise the grave errors observed as issues to be debated and determined the Justices are still powerless and hamstrung in tackling the errors. But if the party adversely affected by the errors through careful reading, wisdom and vigilance, spots the errors, it is then and then only that the Court of Appeal under our law can deal with the issue. Generally, appeal courts without statutory provision, have no jurisdiction to disturb settled issues not properly brought as well as those not brought before them.”
I have come to the conclusion that the appeal brought by the appellants has been nothing other than an academic exercise. It was canvassed on largely irrelevant issues. But, as I recall, it was done in a rather undisguised florid and theatrical manner by their counsel, which otherwise would have been sufficient to persuade. However, the preliminary objection by the respondents’ counsel has undone all that. I hold that there is no merit in this appeal. It is accordingly dismissed with costs of N500.00 in favour of the respondents.
KATSINA-ALU, J.C.A.: I entirely agree. The defendants in an application dated 21 March, 1991 sought an order for the release of their vessel which was arrested and detained on the orders of the court. The court heard the application and made the following order:
“I therefore order that the vessel ‘MV DA QING SHAN’ be released, provided that the Defendants/Applicants provide security by way of guarantee or undertaking by a Bank or an Insurance Company or any other Corporation of repute in Nigeria in the sum of $300,289.19 or its Nigerian equivalent.”
The defendants appealed. Now it must be noted that the learned trial judge did not refuse to release the vessel. He released the vessel on condition. A conditional release cannot be said to be a refusal moreso when there is no complaint against the conditions imposed.
I agree with my learned brother Uwaifo, J.C.A. that the appeal is misconceived and it must therefore fail. I also dismiss it with N500.00 costs in favour of the respondents.
CHIGBUE, J.C.A.: I agree.
Appeal dismissed.
