Home Glass Limited V. Linkage Assurance Plc (2016)

LawGlobal-Hub Lead Judgment Report

RITA NOSAKHARE PEMU, J.C.A. 

This is an Appeal against the Judgment of Hon. Justice I. B. Gafai sitting at the Federal High Court Awka, which was delivered on the 20th of May 2014 in Suit No. FHC/AWK/CS/140/2005.
In the lower Court, the Appellant’s case was dismissed as being statute barred.

SYNOPSIS OF FACTS
The Suit, the subject matter of this Appeal, was instituted by Writ of Summons filed on the 22nd of July 2005. – Page 1 of the Record of Appeal.

In Paragraph 14 of the Further amended Statement of Claim filed on the 12th of May 2011, the Appellants (Plaintiff at the lower Court) claims against the Respondent (Defendant at the lower Court) the following –
(a) “The Sum of N5,819,580.00 (Five Million, Eight Hundred and Nineteen Thousand, Five Hundred and Eighty Naira) being money due and unpaid arising from the insurance contract.
(b) N10,000,000.00 (Ten Million Naira) being general damages for breach of Contract”.
Pages 85 – 90 of the Record of Appeal.

On the 17th of May 2012, the Defendant/Applicant (Respondent in the present Appeal), filed a motion on

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notice, seeking an order of the lower Court, dismissing the Suit, on the ground that the claim against the representative of the Shipping Company being statute barred, the Court lacks jurisdiction to entertain the Suit – pages 114-117 of the Record of Appeal.

In the affidavit in support of the application, the Defendants/Applicants had deposed thus in Paragraphs 3, 4, 5 and 6 –
PARAGRAGH 3 “That on 13/3/07, following an application by the plaintiff, one Supermaritime Nig. Ltd the representatives of M.V. Eurolady, shippers of the purported missing goods, the subject matter of this suit, was joined as a co-defendant in this suit.
PARAGRAPH 4
Subsequently, the said Supermaritime Nig. Ltd, on 30/5/07, brought an application against the plaintiff seeking an order of Court dismissing the suit against it for being statute barred.
PARAGRAPH 5
The Honourable Court, per Allagoa J. In a well considered ruling on 4/4/08, dismissed the action against the said Supermaritime Nig. Ltd on the ground that the action was time barred against Supermaritime Nig. Ltd, who was the representative to the shippers of the goods.

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PARAGRAPH 6
The action having been dismissed against the principal party to this suit, M.V. Eurolady or its representative, Supermaritime Nig. Ltd, the present suit cannot stand against the defendant, as the Court’s jurisdiction to entertain the said suit had been eroded”.

The Appellant/Respondent filed a Counter affidavit in opposition on the 25th of May 2012 – Pages 125-126 of the Record of Appeal.

They admitted the facts in Paragraphs 3, 4 and 5 but denied the fact in Paragraph 6 thus in their Paragraph 4 –
PARAGRAPH 4
“That the Contract in respect of Cargo Marine Insurance Policy No. MAC/ON/D/00001/99 dated 22/9/99 upon which this suit was predicated was between the plaintiff/respondent and the defendant/applicant (as Central Insurance Company Ltd). The said Cargo Marine Insurance Policy No. MAC/ON/D/00001/99 dated 22/9/99 is hereby attached and marked Exhibit “A”.
PARAGRAPH 5
That Supermaritime (Nig.) Ltd is the Nigerian representative of the shipping company.
PARAGRAPH 6
That neither the shipping company nor its representative Supermaritime (Nig.) Ltd was party to the said Insurance Contract.

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PARAGRAPH 7
That the Cargo Marine Insurance Policy No. MAC/ON/D/00001/99 dated 22/9/99 specifically stated that “This Insurance is subject to Nigerian Jurisdiction”.
PARAGRAPH 8
That the dismissal of the plaintiff’s suit against Supermaritime (Nig.) Ltd does not affect the jurisdiction of the Court to entertain this suit”.