A.O. Mbakwe V. R.M.S. Africa (Rhein Naas) & Anor (2000)

LawGlobal-Hub Lead Judgment Report

NSOFOR, J.C.A.

By a writ of summons in suit No. FHC/75/92, the plaintiff had claimed the sum of N2,000,000.00 as special and general damages for breach of contract in that the defendants contracted to carry from Iceland to Port Harcourt 1,980 (one thousand, nine hundred and eighty) bags of cod heads with collarbone/backbone in 5 containers on board their ship the “BACO LINER 1” and, to deliver the same in good/sound condition to the plaintiff at Port Harcourt but the defendants have failed, refused and/or neglected to deliver the said goods to the plaintiff.

Alternatively the plaintiff claimed from the defendants jointly and severally N2,500,000.00 (Two million, five hundred thousand Naira) as general damages for negligence.

Following an order for written pleadings, the plaintiff filed a statement of claim dated the 19th March, 1993. Paragraphs 4, 5, 7, 8, 9 10 and 12 thereof forming the principal allegations of facts reads as follows.

“4. The plaintiff ordered from Norfish Limited in Iceland a total of 1,980 (one thousand, nine hundred and eighty) bags of assorted fish heads of the value of USD 147.060. The suppliers sent to the plaintiff Profoma Invoice dated 5/2/92; Import Duty Report (IDR) and Clear Report of Findings (CRF) dated 12/6/92. The consignment was confirmed by Galaxy Enterprises Inc. and the plaintiff would rely on their Invoices and correspondences.

7. The said goods were to be taken delivery of at Port Harcourt within jurisdiction. On the ship’s arrival at Onne Port Harcourt in July, 1992 it was discovered that some of the bags of fish heads were wet and/rotten.
8. As a result of the condition of the said bags of fish heads the defendants called for a survey of the consignment on 28/7/92 and SGS Inspection Service (Nigeria) Limited conducted a survey of the consignment in the presence of the parties hereto at the Federal Lighter Terminal, Onne, Port Harcourt and issued a Survey Report No. SGS/SUPT/LOO/17702/JO dated 28/8/92. The plaintiff shall found on the said survey report at the hearing of the above suit.

9(a) By the said survey, it was discovered that out of a total of 1,980 jute bags of fish heads 1207 were in sound condition whilst 773 (seven hundred and seventy three) were wet and/or rotten and infested with in numeral maggots and putrid Odour oozed therefrom. It was further discovered that one of the containers had a hole on its side whilst three of the containers had weak rubbers at the doors through which water sipped onto them from some stagnant water at the floor of the containers.

9(b) From the survey report it became quite clear that some of the containers used to carry the fish heads were too old and unseaworthy to the knowledge of the defendants. As a result of the Odour emitted by the rotten fish heads, the Ministry of Health, Abia State of Nigeria inspected the plaintiff’s warehouse at Aba, found that 773 bags of the fish heads were decayed/rotten, infested with maggots and weevils due to contact with water and thereby declared the 773 bags of the fish-heads unwholesome and unfit for human consumption. The 773 bags of fish heads were therefore publicly destroyed by burning. The loss was total. The plaintiff will at the trial of the above action rely on the certificate of condemnation dated 26th August, 1992 issued by the Ministry of Health, and signed by the Director of Public Health, Mr. Nwobilo.

9(c) The plaintiff sold each sound bag of the fish-heads at N2050 (two thousand and fifty naira).

11. The plaintiff paid to the Customs and Excise Nigeria, per payment schedule dated 15/7/92 the sum of N137,935.49 as Customs Duty. The plaintiff also paid to SGS Inspection Service (Nigeria) Limited the sum of N5,000 for the survey of the consignment and reporting. By another letter dated 18/8/92 Customs and Excise gave plaintiff Notice of under payment of Import Duty with the result that an additional import duty paid by the plaintiff on the consignment was N140,299.00 thereby making a total of N278,234.57.
12. WHEREOF the plaintiff has been damnified and has suffered tremendous loss and damage and claims from the defendants jointly and severally as follows:

N2,000,000.00 (two million Naira) being special and general damages for breach of contract in that the defendants contracted with the plaintiff to carry from Iceland to Port Harcourt 1,980 (one thousand nine hundred and eighty) bags of assorted fish-heads with collarbone/backbone in 5 containers on board their ship the “BACO LINER 1″ and deliver the same in good/sound condition to the plaintiff at Port Harcourt but the defendants have failed, refused and/or neglected to deliver the said goods to Port Harcourt as aforesaid in good/sound condition.

Particular of Special Damage:

(a) 773 (seven hundred and seventy three) bags of the said fish-heads are wet and rotten and of no value declared unwholesome and destroyed by burning publicly at the market price in August 1992 at N2050.00 (two thousand and fifty Naira) per bag……… N1,584,650.00

(b) Custom Duty paid: vide payment schedule dated

17/7/92 and Additional payment………. N278,234.57

(c) Survey Fees: vide page 3 No.11 of

Survey Report.. N5,000.00

Total N1,867,884.57

(d) General Damages for breach of

contract …. N132,115.43

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Total sum claimed: N2,000,000.00

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The plaintiff will rely on the Sale Invoice No. 0865 dated 7/9/92 and a receipt No.460 dated 7/9/92 to show the market price of the sound fish-heads to be N2050,00 per bag as at September, 1992.

Alternatively, the plaintiff claims from the defendant jointly and severally the sum of N2,500,000.00 (Two million five hundred Naira) general damages for negligence.”

The defendants did not file any pleadings. Rather they brought an application by way of a motion on notice dated the 19/5/93 pursuant Order 27 of the Federal High Court (Civil Procedure) Rules, 1976 praying for an order:-

“to dismiss/or struck out this action against the said defendants/applicants on the ground that the plaintiff, not having been named as either the consignee or endorse of the relevant bill of Lading on which the claim herein is based, and/or if so named, having endorsed another party, has no locus standi to institute and/or maintain this action as presently constituted and/or such order or further orders as this Honourable Court may deem fit to make in the circumstances. A copy of the relevant bill of lading referred to by the plaintiff in their statement of claim is attached hereto as Exhibit FA1.”

The application came on for hearing before E.O. Sanyaolu, J. He heard the counsel and thereafter reserved the ruling to the 24th of March, 1994. In a considered ruling, copied in pages 32 to 43 of the record of appeal, the learned trial Judge expressed himself at page 41 inter alias, as follows:-

“The Bill of Lading having been endorsed in blank by Norfish Ltd. anybody who comes in possession of the bill Exh. FA1 and writes his name thereon becomes an endorsee in blank. Thus such a party can sue and be sued on the said Bill of Lading, if he does not in turn endorse it to some one else. But the bill of lading, Exh. FA1, was subsequently endorsed to O.C. Sampson Agencies Ltd. in what in my view amounts to a “special endorsement and valid for the purposes of section 375(1) of the Merchant Shipping Act (supra) which section is a verbatim re-enactment of the English Bills of lading Act, 1855. Accordingly the plaintiff has divested itself of the right of suit which hitherto has resided in the plaintiff and same has now been passed to O.C. Sampson Agencies Ltd. who is the only party who can sue and be sued on the said bill of lading. The legal consequences therefore is that the plaintiff no more has the locus standi to sue on the said bill of lading Exh. FA1 and I therefore hold that he cannot institute or continue with the action herein, See the case of Seatrade v. Fiogret (supra) where the Court of Appeal held as follows:-

“xxx”

In the present case, the plaintiff A. O. Mbakwe and sons went through the entire stages envisaged by law. It started off as a “Notify-Party”. It became a bonafide de jure endorsee with right to suit and property in the goods but later lost that right by its “endorsement” of the goods to “O.C. Sampson Agencies Ltd.”

The learned trial Judge thereafter adverted to and considered what appropriate order to make in the circumstance. Concluding, he wrote at page 42 of the Record inter alias:-

“In the final analysis, therefore the present suit ought to and is hereby struck out for lack of locus standi by the plaintiff”.

He made no order as to costs.

The above remained the relative positions of the parties when counsel to the plaintiff brought an application by way of a motion on notice dated the 17th of August, 1994 praying for an order:-

“relisting or replacing the above suit in the cause list for hearing on its merit.

FURTHER TAKE NOTICE also that the ground for bringing this application is that the above suit was struck out per incuriam and without considering the Court of Appeal stand on striking out such suits in limine and without duly or at all considering the provisions of Section 39(1) of the Nigerian Merchant Shipping (Amendment) Decree No. 20 of 1988 now section 375(1) of Merchant Shipping Act, 1990 Cap. 224.”

The quo warranto for the application, as expressed on the notice of a motion, was Order XXIX Rule 6 of the Federal High Court (Civil Procedure) Rules, 1976. As the record shows, the application came on for hearing before E. O. Sanyaolu, J. on the 8th of February, 1995. At the hearing the applicant with the counsel was present in court. The defendants were absent from court. They did not appear through a counsel either. Mr. Ezekwesiri of counsel moved and argued the motion fully.

After hearing the learned counsel, the court delivered an “off the hook” ruling. It wrote, (see page 48 of the record):-

“Court:- Having listened to applicant’s counsel moved in terms of the motion papers. I am of the view that this is not a proper case for me to exercise my discretion to relist as I am now functus officio on the motion. The application is hereby dismissed,”

Dissatisfied and aggrieved with the order dismissing the motion for relistment, the applicant has appealed therefrom to this court. The notice of appeal, copied at pages 49 to 50 of the record of appeal, raised 3 grounds of appeal. Shorn of their respective “PARTICULARS” they read:-

“(1) The learned trial Judge erred in law in refusing to relist or replace in the cause list for hearing on its merits the above suit struck out in limine on the 24th day of March, 1994.

(2) The learned trial Judge erred in law in refusing to relist or replace in the cause list for hearing on its merits the said suit No. PHC/PH/75/92 struck out on 24/3/94 per incuriam.

(3) The learned trial Judge erred in law in refusing or failing to give the plaintiff/applicant fair hearing in the above suit and thereby came to a wrong decision by striking out the plaintiffs suit.”

I shall pause here for a while for a comment to dispose of a point. It arises from the grounds of appeal filed. After examinating the grounds of appeal, three of them; it is clear to me that ground (2) (supra) is repeating ground (1). And with respect to ground (3), one is inclined to ask: does it arise from the decision on the 8/2/95?

A ground of appeal would be directed to and constitute a challenge to the ratio decidendi of the decision. Did the trial Judge refuse to hear the applicant through the counsel? If ground 3 of appeal does not arise from the decision on the 8/2/95, it follows in my view that no issue may be distilled therefrom.

The parties had in compliance with the rules of Court filed their respective briefs of arguments. Therein each party identified the issue for determination. The appellant at page 3 of the appellant’s brief filed on 18/7/96 formulated two issues. These are:-

“1. Whether the learned trial Judge was right in refusing to relist the suit which was struck out in limine although the suit appears to have been struck out per incuriam.

2. Whether the learned trial Judge was right in refusing to give the appellant a fair hearing and hearing the case on its merits.”

On their part, the counsel for the respondents formulated at page 4 of the respondents’ brief one issue for determination. It is:-

“Whether the learned trial Judge was right in refusing to exercise his discretion in relisting the substantive matter which he had earlier struck out pursuant to a demurrer application on behalf of the respondents herein.”

I shall pause here again for a while for a comment on issue No 2 as formulated by the appellant. I had above held, unless I be wrong, that ground 3 of appeal filed does not arise from or constitute an attack or a challenge to the decision on the 8/2/95. Having not arisen, it follows in my view that no issue may be distilled therefrom. No issue of fair hearing arose in the decision on the 8/2/95. For the above reason, I have disregarded and discountenanced the Issue No. 2 as formulated by the appellant.

At the hearing each counsel adopted his brief of argument. Each made laudably short a speech in amplification of his brief.

Learned counsel for the appellant in page 4.01 of the appellant’s brief had focused on and highlighted the functions of a bill of lading. It was contended that a bill of lading does not constitute evidence of transfer of the property in the goods to an endorsee thereof. The property in the goods covered by the bill of lading remains vested in the consignee of the goods. In the present case on hand, counsel contended that the appellant was such a consignee. It was submitted on that account that the appellant had “locus standi” to institute the suit and prosecute the action against the respondents.

It was the further contention by the counsel in the appellant’s brief that the endorsement of the bill of lading to (O.C. Sampson Agencies (Nigeria) Ltd.) was merely to constitute it (O.C) Sampson Agencies Ltd. then agent of the appellant who alone could maintain the action.

Counsel, then, cited and relied on Abraham Adesanya v. The President of the Federal Republic of Nigeria (1981) 1 All NLR p.1, (1981) 2 NCLR 358 and, Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669 for the meaning of “Locus standi” and, the proper test for whether or not a plaintiff has no locus standi to maintain an action. It was the contention of the counsel in the appellant’s brief that the court had the duty to look beyond a formal endorsement on the bill of lading to ascertain whether or not the property in the goods in the bill of lading “passed upon or by reason of such consignment or endorsement”. Reliance was placed on section 374(1) of Merchant Shipping Act Cap.224 vol. 13 Laws of the Federation of Nigeria, 1990. It was accordingly submitted that the property in the goods does not pass upon the endorsement of the bill of lading but upon the contract in pursuance of which the endorsement was made. And an important consideration whether the property in goods did pass to the endorsee depended on whether or not he gave value for the bill of lading. Learned counsel cited the case of Nigerbras Shipping Line Ltd v. Aliminium Extrusion Industries Ltd (1994) 4 NWLR (Pt. 341) 733 C.A., F. I. Omwadike & Co. Ltd. v. Brawal Shipping Nigeria Ltd. (1996) 1 NWLR (Pt. 422) 65. Concluding, counsel had urged us at page 6 of the appellant’s brief to hold that the appellant had “Locus standi” to maintain the action and so ought to be allowed to prosecute the suit because as counsel further contended, the trial court was in error in refusing to re-list the suit for hearing on the merits.

The gist of the contention by counsel in the respondents’ brief is that the decision by the court below on the 24/3/94 upon the demurrer was a final decision which could be only attacked on an appeal. It was further contended that after that decision, the court below became functus officio. The trial court no longer had the competence to re-list the suit for further hearing. Learned counsel cited a number of decided cases including Olowu v. Abolore (1993) NWLR (Pt.293) 255 at page 270 -271; Thynne v. Thynne (1955) 2 All E.R. 129 per Morris, L.J. at page 145; Minister of Lagos Affairs, Mines & Power v. Akin-Olugbade (1974) 11 SC 1, (1974) 1 All NLR 748 at page 750; Agbeniyi v. Aba (1994) 7 NWLR (Pt.359) 635 at page 748-749.

Before going any further, I shall remind myself that the court is not sitting on appeal over the decision on the demurrer proceedings on the 24/3/94. No. And counsel in the appellant’s brief in paragraph 4.07 thereof, as I pointed out above, urged the court to hold that the appellant had “locus standi” to prosecute his suit. I shall firstly, consider one of the cases cited to us and relied on for what assistance it may offer me.

I shall now deal with F. I. Omwadike & Co. Ltd v. Brawal Shipping (Nig) Ltd (supra). The facts of the F. I. Omwadike & Co Ltd case (supra) are similar to the facts of the substantive suit from which the appeal in hand arose. Shortly put, the facts are these. There was a claim for damages for goods covered by bills of lading arising from carriage by sea. The bills of lading Nos C.116 had been endorsed by the appellant.

The appellant, qua plaintiff, filed a statement of claim. It pleaded the bills of lading. The 1st respondent, qua defendant, did not file any pleadings. Instead it filed a demurrer application pursuant to Order 27 Rule 3 of the Federal High Court (Civil Procedure) Rules, 1976. There was no affidavit evidence in support of the application. The Bills of Lading were marked as Exh. FA1 and Exhibit FA2 respectively.

The relief sought for was an order of court dismissing and/or striking out the suit on the ground that the appellant/plaintiff lacked the “Locus standi” to maintain the action.

The Federal High Court, Port Harcourt (Ojutalayo, J.) heard the application. In its ruling the court allowed the motion and granted the application. It dismissed the action.

The appellant/plaintiff appealed from the decision to Court of Appeal. Now, these cases either by the Supreme Court or the Court of Appeal decide principles; not, Rules. The F.I. Onwadike & Co. Ltd case (supra) was cited to us and counsel persuaded us to follow the decision therein.

But is the principle decided in or by the F.I. Onwadike & Co. Ltd. case (supra) relevant herein or, applicable to the appeal before us? With respect to counsel for the appellant, the F.I. Onwadike & Co, Ltd case(supra) offers us no assistance. Why? Because the Court of Appeal in the F.I. Onwadike & Co, Ltd case (supra) was not dealing with the re-listing for hearing on the merits the suit either struck out or dismissed following a successful demurrer proceeding under Order 27 Rule 3 of the Federal High Court (Civil Procedure) Rules, 1976. And at the risk of a repetition the decision of the court below on the 24/3/94 is not on appeal before us now. The ratio decidendi in the F. I. Onwadike & Co, Ltd case(supra) cannot be invoked in the present appeal case proceeding before us.

Having disposed of the above, the important question arising becomes this, was the court below in error in declining to re-list the suit for hearing on the merit of after it had been struck out on the 24/3/94 for want of standing to prosecute the suit?

Surely, the proper constitution of parties in a suit is a serious matter. There ought to be a competent plaintiff and a competent defendant if the trial court would ever exercise its jurisdiction to determine the suit.

It was however submitted to us by the respondent’s counsel that after the decision on the 24/3/94, the court below became “functus officio” and therefore was right in declining to re-list the suit previously struck out. It was a “final decision”. If that decision by the court below on the 24/3/94 be a final decision then, the counsel for the respondent was right. The remedy of the appellant lay in an appeal as in the F.I. Onwadike & Co, Ltd case (supra). And the courts have jurisdiction to be wrong in law and that is why we sit on appeal over question of law. See Oscroft v. Benabo (1967) 2 All E.R. 548 at page 557.

Now, no difficulty arises agreeing that every judgment or decision on the merits is a final judgment. But it is equally true certainly that not every final judgment is a judgment on the merits. For when as in the suit the radical issue is whether the court has jurisdiction or lacks it to entertain the suitor whether the party has or lacks the locus standi to maintain the action in court. A final decision or judgment can be given which does not affect the rights of the parties or the merits of the case.

Applying the principle above discussed, I am not in doubt that the decision by the trial court on the 24/3/94 (whether or not it was wrong, is not the matter here) was a final decision even when the rights of the parties or the merit of the case was not gone into or determined.

Now, there is the well settled, elementary and fundamental principle of law that a court on disposing of a matter before it renders itself functus officio. It ceases to have legal competence or jurisdiction in respect of such a case. See Ekerete v. Ete (1925) 6 NLR 118; Akinyede v. The Appraiser (1971) 1 All NLR 162. It cannot assume the status of an appellate court over its own decision unless of course, there be a statutory authority to do so. See Fritz v. Hobson (1880) 14 Ch. 542.

Applying the above discussed principle to the appeal before us, my resolution of the issue calling for determination becomes as clear as crystal. I have no doubt but that the issue ought to be resolved in favour of the respondents and, eo ipso, against the appellant. And I do so resolve it.

The appeal, in my view, lacks merit. It ought to be dismissed. I dismiss it accordingly. There shall be costs to the respondents against the appellant assessed at N6,000.00.

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Other Citations: (2000)LCN/0905(CA)