Mr. Victor Adelekan V Ecu-line Nv (2006)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal sitting at Ibadan in appeal No. CA/I/186/2000 delivered on 5/4/2001 allowing the appeal of the present respondent against the ruling of the trial court delivered on 3/3/2000 dismissing the demurrer application of the said respondent.

Sometime in 1996 the present appellant entered into a contract with the respondent for the carriage by sea of S.T.C. photo processing machine from Canada to Nigeria for valuable consideration. Later on appellant entered into yet another contract with the respondent, this time for the carriage by sea of a photo plotter MIVA 25 machine from Belgium to Nigeria.

In May, 1997 the respondent by fax notified the appellant that the goods have been placed on board the M.V. KAGORO, which was expected to berth in Nigeria on or before 25 May, 1997. Along with the fax message came a copy of the bill of lading No. 30504 MTL – LAG which did not include the photo plotter MIVA 25 machine; the bill of lading only contained the S.T.C. photo processing machine. Appellant immediately notified the respondent of the omission.

When the ship arrived in Nigeria, appellant discovered that the photo plotter MIVA 25 machine was not included and the respondent was duly notified and it was later discovered that the photo plotter MVA 25 machine was misplaced by the respondent in its warehouse. The respondent admitted liability in letters dated 16th and 30th January, 1998 and offered monetary compensation which the appellant rejected by letters dated 18th January, 1998 and 13th February, 1998 because according to the appellant, it was below the replacement cost of the machine. By a Letter dated 7th October, 1998 the appellant’s solicitors demanded payment of US $98,520.00 as compensation for the loss but the respondent replied on 19th October, 1998 expressing sympathy but contended that the claim was statute barred. The appellant therefore instituted an action in the Federal High Court, Ibadan in suit No. FHC/IB/CS/10/99 claiming N14,925,639.00 being the money payable by the respondent to the appellant for breach of contract of carriage of goods by sea and negligent loss of goods. The appellant contended in the statement of claim that the photo plotter MIVA 25 machine was misplaced within the respondent’s warehouse and that no bill of lading was ever processed for its shipment, that it was never loaded on board the M. V. KAGORO and that the respondent could therefore not avail itself of the defence of limitation of time under the Hague Visby Rules for the bringing of an action in respect of carriage of goods by sea.

The respondent did not file a statement of defence but filed a demurrer for the dismissal of the action on the ground that the action was time barred on the provisions of the Carriage of Goods by Sea Act, Cap 44 Laws of the Federation of Nigeria, 1990 and/or the Contract of Affreightment evidenced by the relevant bill of lading pleaded by and/or upon which the plaintiff’s claim is founded.

In deciding the application, the learned trial Judge held that the action was not statute barred and dismissed the application. The respondent was not satisfied with the ruling and appealed to the Court of Appeal which set aside the ruling of the trial Judge. The appellant is dissatisfied with that judgment and has consequently appealed to this court.

In the appellant’s brief filed on 10/5/2002 by learned counsel for the appellant, Akeem Agbaje Esq, the following four issues have been identified for determination.

“1. Whether the Court of Appeal was right in holding that the subsidiary issue raised by the plaintiff, namely that the error of law complained of by the defendant in issue 1 which was conceded by him in favour of the defendant, could not have occasioned a miscarriage of justice did not arise from any of the grounds of appeal before it and thereby ignored all the arguments in respect thereof in the plaintiff’s brief of argument before it (grounds 1 and 2).

2. Whether the Court of Appeal was right in holding that the submission of the plaintiff in his brief of arguments in that court in respect of issues 2 – 4 before it raise academic issues (ground 3)
3. Whether in a demurrer application, the court can consider facts or documents outside the statement of claim and whether or not on the applicable law and the relevant facts the plaintiff’s claim against the defendant is statute or time barred (grounds 4 and 5)
4. Whether the refusal of the Court of Appeal to consider any of the arguments on the issues submitted before it for determination amounts to a denial of fair hearing (ground 6).”

At this stage, it is necessary to point out that the respondent did file a cross appeal and a notice of preliminary objection. The preliminary objection was filed on 20/12/04 and arguments thereon are contained in the respondent’s brief of argument filed by learned counsel for the respondent/cross appellant, Ayo Olorunfemi Esq. on 20/12/04. I have carefully gone through the record and have found no reply brief filed by the appellant/cross respondent in this appeal.

The objection prays the court “for an order that the appeal and/ or issues formulated by the appellant be struck out and/or dismissed on the grounds that they are incompetent.”

The grounds on which the objection is based are stated as follows:

(a) No leave of court was sought and/or obtained before the filing of the appellant’s notice of appeal.

(b) The issues are not supported by any ground of appeal filed and should be discountenanced, and