Owners Of M.t. Venturer V. Nigerian National Petroleum Corp & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE ADAMU JAURO. J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Federal High Court Lagos, coram E.O. Sanyaolu J, delivered on 3rd March, 2003 dismissing the plaintiffs/appellant’s suit for being statute barred. The facts giving rise to this appeal are as follows: By a charter party agreement dated 3rd June 1988, the 1st respondent hired the appellants vessel MT VENTURER, for an initial period of one year with an option to renew for a further period at the instance of the 1st respondent. In accordance with clauses 8, 48, 49 and 58 of the said charter party, all payments for hire of the vessel were to be made monthly in advance.

At the expiration of the agreement, the 1st respondent redelivered the vessel MT VENTURER to the appellant on 26th November, 1991. The appellant as plaintiff instituted this action in the lower court on 10th March, 1998 claiming the sum of US $276,138.75 (Two Hundred and Seventy Six Thousand One Hundred and Thirty Eight US Dollars Seventy Five Cents) being accrued and accruing interest for delayed payments of hire under the charter party. The respondents filed a preliminary objection to the suit based on Section 12(1) and 12(2) of the NNPC Act, challenging the jurisdiction of the court on the grounds that the action is statute barred and the failure of the appellant to give the respondents the statutory one month pre-action notice. The preliminary objection was upheld by the learned trial judge and the appellant’s suit was dismissed.

Distressed by the said ruling the appellant appealed against same vide a notice of appeal dated and filed on 17th October, 2003 pursuant to an order for extension of time granted by this court on 16th October, 2003. The three grounds upon which the appeal is anchored, shorn of their particulars are hereby reproduced thus:-

“GROUNDS OF APPEAL:

1. GROUND 1

The learned trial judge erred in law in holding that the Plaintiffs cause of action accrued on 25/11/92 when it was clear to him that the defendants’ default to pay accruing interest complained of by the Plaintiff, was a continuing damage of injury which only ceased when defendants refused to pay after demand and/or denied liability.

2. GROUND 2

The learned trial judge misdirected himself in law in holding that the 2nd Defendant is a wholly owned subsidiary of the 1st Defendant and established pursuant to Section 6 of the NNPC Act and so could be accorded the same protection given by law to the 1st Defendant/Respondent herein.

3. GROUND 3

The learned trial judge erred in law when, contrary to the evidence before him, he held that the Plaintiffs suit’ was statute-barred as against both the 1st & 2nd Defendants.”

In compliance with the Rules of Court parties filed and exchanged their respective briefs of argument. The appellant’s brief of argument was filed 5th April 2006 though deemed properly filed on 17th October 2007, while the reply brief was filed 17th December 2008 and deemed properly filed on 27th April, 2010.

The respondents brief of argument is dated and filed on 12th November, 2007. Mr. Ayo Olorunfemi leading Mr. Olakunle Yusuff for the appellant, adopted and relied on the appellant’s brief of argument and the reply brief in urging this court to allow the appeal. Learned counsel stated that three issues for determination were distilled from the three grounds of appeal and that additional authorities were cited on page 6 of the main brief. Learned counsel urged the court to allow the appeal. Mr. A.C. Igboekwe leading Mr. J.C. Ohekpo for the respondents, adopted and relied on the respondent’s brief of argument in urging the court to dismiss the appeal in its entirety with costs in favour of respondents.

The three issues for determination distilled by the appellant from the three grounds of appeal are as follows:

“(i). Whether the Appellant’s cause of action accrued on 25/11/92 as held by the learned trial judge or another date when the respondents defaulted to pay accruing interest complained of by the Appellant? (Ground 1).

(ii). Whether the learned trial judge was right in holding that the 2nd Respondent is a wholly owned subsidiary of the 1st Respondent, which could be accorded the same protection given by law to the 1st Respondent? (Ground 2).

(iii). Was the Appellant’s suit statute-barred as against both the 1st and 2nd Respondents