Emespo J. Continental Ltd V Corona Shifah-rtsgesellschaft Mbh & Company (2005)

LAWGLOBAL HUB Lead Judgment Report

MUKHTAR, J.S.C.

In a suit before the Federal High Court holden in Lagos (from which this appeal emanated), the parties were initially, “Emaspo J. Continental Limited” as plaintiff, and “CMB S. A. (The owners of M. V. Concordia)”, and “Umarco (Nigeria) Plc.,” as defendants. The defendants sometime in September 1991 acknowledged the shipment on board the vessel, motor spare parts owned by the plaintiff in a container for carriage from Le Harve, France to Apapa Port Lagos, by the two bills of lading Nos. ELOS 0003 and 0004. There was shortage in the goods when they were delivered, but the 2nd defendant informed the plaintiff that the container was landed without the original seal. The plaintiff’s claim was predicated on the averment in paragraph 8 of the statement of claim which reads:

“8. In breach of the contracts contained in or evidenced by the said bills of lading and/or of their duty there under and or under convention or Rules applicable, the defendants and their servants or agents failed properly and carefully to handle, carry keep, care for and discharge the goods and/or failed to deliver all the goods to the plaintiff at Lagos and in the same good order and condition and quantity as when shipped but instead the defendants short delivered the goods.”

The 2nd defendant informed the plaintiff that the container was landed by the vessel without the original seal. The plaintiff wrote the defendants seeking settlement, but to no avail, hence the action, whereof the plaintiff claimed the following:

“1. The sum of FF209,672.00 (French Franc) currency of Invoice.

2. The sum of N13,218.00.
3. Interest on claims (1) and (2) above at the rate of 30% per annum from the 28th day of October, 1991 until payment.”

The defendants in their joint statement of defence denied most of the plaintiff’s claims. Both defendants denied the supra reproduced paragraph (8) of statement of claim. The 2nd defendant denied any liability to the plaintiff, as it did not enter into any contract with the plaintiff. The 1st defendant also denied liability to the plaintiff as it was not the owner or demise chatterer of the vessel which carried the plaintiff’s goods, and so was not a proper party to the suit.

The plaintiff moved an application on notice seeking the following orders:

“1. An order for leave to delete the words in bracket, to wit: (THE OWNERS OF “M. V. CONCORDIA”) appearing after CMB S. A. the 1st defendant herein and saving therefore “C.M.B.S.A.” only as 1st defendant in the parties to this suit.

2. An order joining CORONA SCHIFFANNNRTSGE SELLSCHAFT (The owners of “M. V. Concordia”) as the 3rd defendant in this suit.
3. An order permitting service of all the court processes in this suit on the 3rd defendant through the 1st and 2nd defendants herein.”

The above orders were granted as prayed by the learned trial Judge. Then about seven months thereafter the party joined as a 3rd defendant, filed and moved a motion for an order setting aside the joinder of the defendant as a party to the action, and striking out the suit against the 3rd defendant. The grounds of the application were set out thus:

“(a) This action is statute barred not having been brought against the defendant within one year from the date of delivery of the goods or the date the goods ought to have been delivered by the plaintiff by virtue of the provisions of the Carriage of Goods by Sea Act, 1958.

(b) This is a point of law which is likely to be decisive of the litigation.”

The application was dismissed.

An application for judgment in default of appearance against the 3rd defendant was moved, and in her ruling, the learned trial Judge entered judgment for the plaintiff in the sum claimed.

Now, the ruling of Auta, J. dismissing the application for striking out, was appealed against by the 3rd defendant to the Court of Appeal on two grounds of appeal. At the Court of Appeal the said ruling was set aside. Aggrieved by the decision the appellant appealed to this court on four grounds of appeal. In pursuance to the rules of court, parties exchanged briefs of argument which were adopted at the hearing of the appeal. In the appellant’s brief of argument, the following issues were formulated for determination: