Global Transport Oceanico S.a. & Anor V. Free Enterprises Nigeria Limited (2001)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J,S.C

This case started in the Federal High Court, Lagos, where the respondent who was the plaintiff claimed against the appellants as defendants the sum of US $25,332.96 being special and general damages for breach of contract and or/duty in the carriage, custody and/or discharge of part of the cargo of paper consigned to the respondent on board the Ship MY “KAPETAN LEONIDAS”, the second appellant herein.

The respondent filed its statement of claim in the said Federal High Court, paragraph 3 of which reads thus:-

“3. By Bills of lading Nos. 251 and 226 issued by the 1st defendant and dated at Santos, Brazil, the 26th day of September, 1990, and the 12th day of November, 1990, respectively, the defendants acknowledged shipment on board their vessel the MY “Kapetan Leonidas” of a total of 119 pallets of paper in apparent good order and condition for carriage to and delivery at Lagos, to the order of the plaintiff. The plaintiff shall at the trial found on the aforesaid Bills of Lading and clear reports of findings Nos. 36019,36020, 36173 and 36177 respectively of 9th October and 14th Nov., 1990, issued by Interlek Services International Limited.”

On the 29th of May 1992, the 2nd appellant, filed an application pursuant to Order 27 of the Federal High Court (Civil Procedure) Rules, 1976 (Cap. 134 of Laws of Federation. 1990) for:

“An order to dismiss and/or strike out this action against the 2nd defendant/applicant on the ground that the plaintiff, not having been named as either the consignee or endorsee, of the relevant Bills of Lading on which their claim is based, and if so named, having endorsed the same to another party has no locus standi to institute or maintain this action, as presently constituted and for further and orders as the court may see just to make.”

The application which was by motion on notice was not supported by any affidavit but the two Bills of Lading Nos. 251 and 226 referred to by the plaintiff in the statement of claim were attached to the motion paper as Exhibits FA1 and FA2. No counter-affidavit was filed by the respondent.

The learned trial Judge heard arguments of Counsel for both parties on the application and in a considered ruling delivered on the 25th day of September, 1992, granted the application of the 2nd appellant and dismissed the action of the respondent for lack of locus standi to sue.

The respondent was dissatisfied with this ruling and by its notice of appeal which was later amended appealed to the Court of Appeal on only two grounds which without particulars read:-

“1. The learned trial Judge erred and misdirected herself in law when she embarked upon an inquiry into issues of fact in a demurrer application under Order 27 of the Federal High Court (Civil Procedure) Rules, 1976.”

2. The learned Judge erred in law in holding that the appellant has no locus standi in this case,”

The 2nd appellant also cross-appealed on only one ground which without particulars reads:-

”The learned trial Judge erred in law and misdirected herself when she held that an application under Order 27 of the Federal High Court (Civil Procedure) Rules, 1976, ought to be supported by an affidavit”

In the Court of Appeal, briefs were filed and exchanged between the parties’ Counsel. The Court of Appeal heard the appeal and delivered its unanimous judgment on 27th Nov., 1997, whereby it allowed the appeal, set aside the decision of Ukeje J.of the Federal High Court and ordered trial de novo before another Judge of that court.

The 1st and 2nd appellants were not happy with the decision and they filed separately their notices of appeal to this court on the 6th and 8th of January 1998 respectively.