Midland Galvanising Products Limited V. Comet Shipping Agencies Nigeria Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the leading Judgment)

The Appellant instituted this action at the lower court against the Respondent the Nigerian agent of M.V. “AFRICAN HAWK” the vessel engaged for the carriage of the Appellant’s cargo of 73 cold rolled steel coils from Saldanha Bay to Tin can Island Seaport, Lagos, Nigeria claiming the sum of N4,173,830.00 (Four million, one hundred and seventy-three thousand, eight hundred and thirty naira) for 15 of the cold rolled steel which got damaged as the goods were being off loaded from the vessel.

During the trial of the case, after the appellant concluded the evidence in chief of its witnesses, the cross-examination elicited from the witnesses the fact that they were not officers of the Plaintiff but insurers exercising a right of subrogation. The Appellant then filed an application to further amend its amended statement of claim to plead facts relating to the subrogation. It also prayed to re-open its case and to call further evidence which was opposed by the Respondent.

The Appellant consequently withdrew those prayers and they were struck out. The prayer to further amend its amended Statement of Claim was granted. The Respondent without any consequential amendment to its statement of defence opened its case and called one witness. Written Addresses were filed, exchanged and adopted by the parties. The Learned trial judge in his judgment adopted the three issues for determination formulated by the Respondent.

After analyzing the evidence led, the learned trial judge concluded that even if he found the Respondent liable to the Appellant for the damage caused to the Appellant’s goods, the Appellant having been already compensated by its insurer was not entitled to pursue compensation for the same loss in its own name.

Dissatisfied with this part of the judgment, the appellant filed a notice of appeal with two grounds of appeal. The grounds without their particulars read as follows:

“A. The learned judge erred in law when he raised the issue of whether this suit was sustainable in the name of the plaintiff suo moto and decided the issue against the plaintiff without calling for further address on the issue.

B. The learned trial Judge erred in law when he dismissed the plaintiff’s case on the ground that the suit should have been brought in the name of the Plaintiff’s Insurer and not in the name of the Plaintiff.

Out of the two grounds of appeal, the appellant formulated the following two issues for determination:

ISSUE 1: whether the learned trial judge was right in law when he raised the issue of whether this suit was sustainable in the name of the Plaintiff/Appellant suo moto and decided the issue against the Plaintiff/Appellant without calling for further address on the issue from the parties.

ISSUE 2: Was Leadway Assurance Company Limited, the Plaintiff/Appellant’s insurer right to have instituted and maintained this suit under a right of subrogation in the Plaintiff/Appellant’s name?

The Respondent on its part also formulated two issues for determination:

(a) Whether the failure of the learned trial Judge to invite the parties to address the Court on the propriety of a compensated insurer pursuing a subrogated claim in its own name occasioned a miscarriage of justice to the Appellant.

(b) In the event of this Court coming to a conclusion that the appeal is meritorious what consequential order ought to be made.