Eimskip Limited V. Exquisite Industries (Nig.) Ltd (2003)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

The only question that calls for determination in this appeal is as to whether the order for service on the party joined by order of court is proper or not. The action was originally between the Respondent to this appeal, EXQUISITE INDUSTRIES (NIG) LIMITED. who as Plaintiff had sued the 1st and 2nd Defendants, that is OWNERS OF MOTOR VESSEL BACOLINECI-3 and BRAWAL SHIPPING NIGERIA LIMITED claiming-

“The Plaintiff’s as owners of 3,517 Bales of stockfish heads with collarbones lately laden in bad, multiple rusty, putrid and not suitable containers on board the 1st Defendant’s ship BACOLINER 1, BACOLINER 2 AND BACOLINER 3 and as holders of Bills of Lading No. C413 dated 14-11-1990, C 406 dated 12/6/1991, No. C425 26/6/1991, C403 dated 28/8/1991, C414 dated 11/12/1991, C413 dated 25/12/1991, C412 dated 16/10/1991, C403 date 6/3/1992 and C419 dated 16/3/1992, whereunder with said Bales of stockfish heads with collarbone were shipped claim damages from the Defendants for loss and/or damages of the said Bales of stockfish heads with collarbone during the voyage to Onne and Port-Harcourt from about the month of July, 1991, to about the month of June 1992, sustained by reason of the Defendant breach of contract and/or duty and/or negligence in and about the carriage thereof.

(1) SPECIAL DAMAGES including cost, customs duty, clearing charges, Transport and Bank charges………$358,262.72 US.D

(2) GENERAL DAMAGES …….N1,000,000 AND the Plaintiff claims the sum of 358,262.72 US Dollars and N1,000,000 together with interest at the rate of 35% per annum from the 23rd day of July, 1991, and costs.”

In the course of the proceedings in the case, the Respondent applied to the trial Court – the Federal High Court, for orders-

“1. Joining EIMSKIP who were the original carriers of the containers in dispute as a party to the suit.

2. To serve EIMSKIP all Court processes through the 2nd Defendant who is agent of the 1st Defendant (the final carriers)”.

In the affidavit in support of the application, one Isioma Okonjo deposed, inter alia, as follows:

“That Uche Ohadugha of counsel told me and I verify believe him that:

(a) The defendants have been served with the writ of summons in this suit.

(b) While going through a series of files and documents connected with the transactions leading to this Suit, he discovered that EIMSKIP was the original carrier who conveyed the containers from REYKJAVIK to HAMBURG before the vessels “Bacoliner 2″ conveyed same from HAMBURG to PORT HARCOURT. A letter written by EIMSKIP with reference No. CLA-INI/BRU VOY 0230-0 of 31-5-1991 to Nordigh Ltd. is hereto annexed and marked Exhibit ‘A’.

(c) In the letter referred to in paragraph 3(b) above, EIMSKIP disclaimed liability for the damaged goods and shifted same unto owners of ‘Bacoliner’.

(d) If EIMSKIP is joined as a party in this suit all matters in controversy in this suit will be effectually and effectively determined.

(e) If the said EIMSKIP is joined it will be bound by the final decision of this court in this Suit.