Cotecna V Churchgate (2010)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is a further appeal against the judgment of the Court of Appeal, Lagos Division, in Appeal No. CA/L/79/2001, delivered on the 17th of March, 2004 dismissing the appeal of the Appellant herein.

At the Federal High Court, Lagos in suit No. FHC/L/CS/63/98 the 1st Respondent as Plaintiff had in a Writ of Summons issued out on 26th January, 1998 claimed against the appellant and 2nd Respondent the following reliefs:

1.”A declaration that the customs duties and charges payable in respect of the 160,000 bags of Thai parboiled rice imported into Nigeria by the 1st Respondent via the vessel M. V. “ILYA ILALIK” and covered by Bills of Lading Nos.LH-1, LH-2, LH-3, LH-4, LH-5 and LH-6 is N65,026,721.70.

2. An order directing the 2nd Respondent to credit the plaintiff with the sum of N9,840,012.54 already paid in excess of the amount due and payable and set off the said amount from the customs duties and charges payable on other consignments of rice to be imported into Nigeria by the Plaintiff henceforth until full credit shall be given accordingly.
3. Such further other orders as may meet the justice of the case.”

On 6th March, 1998, the Plaintiff followed up with an application, praying the trial court to dispense with the filing of pleadings and determine the matter on issues formulated On 29th June, 1998, the plaintiff filed an Amended Particulars of claim and sought on alternative relief in paragraph (b); claiming N9,840,012 54 being damages for negligence in the preparation of Import Duty Report.

While the application to decide the matter on issues formulated by the Plaintiff and the application for leave to amend and to deem Particulars Of Claim as properly filed was still pending at the trial court, the Appellant filed a motion on 19th March, 1998. It prayed to Court to have its name struck out on the grounds that it, at all times material to the subject matter of the suit, was an agent of the Federal Government of Nigeria, a disclosed principal, and that the trial court lacked jurisdiction to entertain the suit against the Appellant. 1st Respondent filed a counter affidavit in reaction to this application and the Appellant also filed a reply to the counter affidavit including the exhibits annexed thereto.

On 7th May, 1998 and 19th October 1998, Learned Chief Judge M. B. Belgore, of blessed memory, took arguments of counsel on both sides on the said application and in his considered Ruling dismissed the application. He reasoned inter alia, thus:

“The sub-sections (sic) of the various enactments creating and affecting the Pre-shipment Inspection Body indirectly by process of elimination showed the Pre-shipment Inspection Body cannot be agent or agency of the Federal Government. This was clearly shown in the contractual agreement dated 19th April, 1991 between the relevant Inspection Body that is Cotecna International Limited in this case and the Federal Government in Exhibit. FA 1.., that the relationships of the two parties are one of an independent contractor to an employer…..”

Being dissatisfied with the said Ruling, the Appellant filed a Notice of Appeal to the Court of Appeal. At the Court of Appeal both the Appellant and the 1st Respondent filed and exchanged Briefs of Argument. The parties adopted their respective Briefs of Argument on 12th February, 2004. The Records show at page 163 that the Appeal was reserved for Judgment on 26th April, 2004.

On 17th March, 2004, the 1st Respondent’s Counsel was incidentally at the Court of Appeal for another matter and discovered the Appeal on the Weekly Cause List for Judgment. The Judgment was eventually delivered that day in the presence of the 1st Respondent’s counsel and the Appellant’s Appeal was dismissed. The Appellant was again dissatisfied with the said Judgment of the Court of Appeal, hence it further appealed to this Court. The Notice of Appeal contained six grounds of Appeal.

The issues which the Appellant formulated for determination in this appeal are as follows:

1. “Whether the Court of Appeal was wrong when it decided that the provisions of section 3(1) and (2) of the Pre-shipment Inspection of Imports Act 1996 are applicable to the 1st Respondent’s claim at the Federal High Court and decided that the provisions of section 136(1) of the Customs and Excise Management Act, did not apply to the claims (This issue is covered by Grounds of Appeal Nos. 7, 2, and 3).
2. Whether the Court of Appeal was wrong when it decided that the Appellant was not at all times material to the subject matter of the 1st Respondent’s claim in the Federal High Court, a disclosed agent of the Federal Government of Nigeria, a disclosed principal (This issue is covered by grounds of Appeal Nos 4 and 5).
3. Whether the Judgment delivered by the Court of Appeal is valid having been wrongly delivered on 17th March, 2004 in the presence of the 1st Respondent without notice to the Appellant.”

The 1st Respondent on its, part has identified also three issues for determination as follow:

i) “Whether at all times material to this action the appellant was an agent of the Federal Government of Nigeria in such a way that it could not be sued or made liable for its acts under pre-shipment inspection of imports act no, 11, 1996.

ii) Whether the Appellant can rely on and take advantage of section 136(1) of Customs and Excise Management Act Cap.84 Laws of the Federation 1990 when it is created under a subsequent statute with no explicit provisions for statutory limitation.