Petro Jessica Enterprises Vs Leventis Technical Company Ltd (1992)

LawGlobal-Hub Lead Judgment Report

S. M. A. BELGORE, J.S.C.

The first appellant is a clearing agent for the Department of Customs and Excise, Shipping agent, warehouseman and forwarders. The second appellant is also a warehouse man, stevedoring contractor and freight forwarding company but according to the claim it also acts as agent of first appellant. The statement of claim, relating to warehousing of the defendant’s cargo and rent due thereupon concluded as follows:

“WHEREOF Plaintiffs claim the sum of N270,470.00 due on the warehousing (including related services), the defendant’s cargo B/L No.13 and B/L No.14 ex Eco Ana of 28/10/77, Rotation No.77/451, plus interest from 1st May 1977 until judgment.”

The matter was filed before the Federal High Court, Benin Division whereupon the defendant raised by way of preliminary objection contained in the concluding part of Statement of Defence as follows in paragraphs 19, 20 and 21:

“19. The defendant will before the trial or at trial raise by way of preliminary points of law the followings:-

(a) That both the Writ of Summons and Statement of Claim as formulated are improperly before the Court and ought to be struck out or dismissed on the ground that the proper parties are not before the Court.

(b) That there is no proper Plaintiff or Plaintiffs before the Court having regard to paragraphs 1,5,6 and 14 of the Statement of Claim filed.

(c) That the claim of the Plaintiffs is neither founded on established contract or Tort in law the same being devoid of elements of breach of contract and/or Negligence and particulars respectively.

20. The Defendant avers and maintains that both the Writ of Summons and Statement of Claim disclose no cause of action against the Defendant and ought to be dismissed:
21. That the Plaintiff’s claims are misconceived, vexatious and speculative and should be dismissed.

DATED at Benin City this 9th day of August, 1984.”

Trial Federal High Court Judge heard the argument on the preliminary objection as formulated in the Statement of Defence, holding the objection to be demurrer which at that stage of joining issues was incompetent; for a demurrer would be valid only if made before Statement of Defence, but after Statement of Claim has been filed. Thus Order 27 Federal High Court Rules precludes demurrer on the filing of statement of defence. However, before the motion was argued, learned counsel for the defendant, Okeaya-Inneh, S.A.N., raised another point, that of jurisdiction.

The plaintiffs, now appellants after some argument agreed to the issue of jurisdiction to be cleared first whereupon learned Federal High Court Judge heard the argument on the issue of jurisdiction. After very exhaustive consideration of the law, the judge came to the conclusion that he had no jurisdiction for the matter was not of jurisdiction in admiralty triable by his Court and relied on S.7(1)(d) Federal High Court Act 1973. But instead of striking out the suit he invoked his powers under S.22(2) Federal High Court Act and transferred the suit to Bendel State High Court for trial. Against this decision the appellants appealed to the Court of Appeal.

The contention in grounds of appeal in the Court of Appeal was that the trial judge erred in holding that this matter was not admiralty matter. The grounds are as follows:-

GROUND 1:

The learned trial judge misdirected himself in law and in fact when he held that for instant suit to sound in Admiralty, “the Agreement relating to the carriage of goods in a ship …….must be between the parties to the suit.