Mobil Oil Nigeria Plc. & Ors. V. Kena Energy International Limited (2000)
LawGlobal-Hub Lead Judgment Report
EDOZIE, J.C.A.
The respondent and appellants herein were respectively, plaintiff and defendants in suit No.FHC/CN/CS/6/98 filed before the Federal High Court in respect of a dispute arising from a contract agreement entered into between the plaintiff and the 1st defendant. By that agreement dated 20th November, 1996, the plaintiff hired on charter to the 1st defendant its barge known as Prim 1 for an initial period of 6 months with effect from 20/11/96 at a daily rate of N24,000 subject to other terms and conditions. At the expiration of the initial period, dispute arose as to whether or not there was option for renewal. While the plaintiff maintained that there was such an option and that the defendants had by conduct renewed the contract, the defendants denied the assertion contending that the plaintiff had been written to remove its barge which was leaking and unsuitable for the purpose for which it was chartered. Against this background the plaintiff on 4/2/98, commenced an action against the defendants alleging amongst other things a breach of the charter agreement and claiming against them jointly and severally various sums of money as damages and in particular the plaintiff sought in paragraph 50(a) of the statement of claim
“50(a) An order of this Honourable court directing the immediate delivery up by the defendants to the plaintiff of the plaintiff’s barge Prim I in the conditions in which it was leased to them.
The defendants in their statement of defence denied the plaintiff’s claim and in paragraph 18(vi) thereof challenged the jurisdiction of the court below to adjudicate over the plaintiff’s claim.
While the suit was pending, the plaintiff on 24th March, 1998 filed a motion on notice dated 16 March, 1998 praying for the following reliefs:-
An interlocutory order of mandatory injunction commanding the defendants/respondents to produce and deliver up to the plaintiff/applicant the plaintiff’s barge known as Prim 1 let by the plaintiff/applicant to the defendants/respondents under a contract of hire which the defendants/respondents have continued to detain by themselves and through their agents, servants and/or privies without payment of hire charges pending the hearing and determination of this suit.
The application was supported by a 30 paragraph affidavit sworn to by Dr. Obioha M. Obioha, a petroleum engineer and Chief Executive of the plaintiff company. Annexed to the motion were 8 exhibits marked A, B, C, D, E, F, G and H. In response the defendants filed a counter-affidavit of 8 paragraphs sworn to be one Godwin Ugochukwu the depot supervisor of the defendants. There were 6 exhibits, 1-6 to the counter-affidavit. The application was argued by counsel for the parties. In a considered ruling delivered on 26/5/98, the learned trial Judge Nwaogwugwu J. granted the application in the following terms:
The defendants/respondents, their agents, servants privies and/or hirelings are hereby ordered to produce and deliver to the plaintiff/applicant forthwith the plaintiff’s barge known as Prim 1 which barge has continued to be detained by themselves and or through their agents, servants, privies or hirelings pending the hearing and final determination for this suit.
Dissatisfied with the above ruling, the defendants lodged an appeal in this court.
Thereafter, the defendants filed another application on notice before the court below praying for the following reliefs:-
- An order staying further proceedings in this suit pending thus:-
(a) The determination of the jurisdiction of this Honourable court in this matter; and
(b) The determination of the appeal filed in this suit.
- An order for stay of execution of the order made on 26/5/98 by this Honourable court pending the determination of jurisdiction of this Honourable court and the appeal filed in this suit.
The motion was supported by affidavit of 16 paragraphs and a reply affidavit of 8 paragraphs. The plaintiff responded with a counter-affidavit of 25 paragraphs. The application was also argued by counsel for the parties and in a considered ruling delivered on 29/9/98, the learned Judge Nwaogwugwu J. dismissed same. Aggrieved thereby, the defendants filed an appeal to this court.
By an order of this court granted at the instance of the defendants, both appeals were on 27/3/99 consolidated for hearing. The appeal against the first ruling on mandatory injunction filed on 24/3/98 is predicated on four grounds one of which was withdrawn and struck out. The surviving grounds without their particulars read as follows:-
A. The learned trial Judge erred in law when it inferred that the principle of law enumerated in Hart & Ors. v. TS.K.J. Ltd. & 3 Ors (1997) 8 NWLR (Pt. 517) 424 at 430 and Okehi v. International Equitable Association (Industrial and Commercial) Ltd. (1997) 11 NWLR (PT. 529) 431 at 436 are inapplicable in this matter.
C. The learned trial Judge erred in law by failing to infer that the principle of law enunciated in Nnodim v Amadi (1993) 1 NWLR (Pt.271) 568 at 573 are applicable in this matter.
D. The learned trial Judge erred in law by making inference on the mandatory injunction that touched on the substantive suit.
The appeal against the second ruling on stay of proceedings and stay of execution pending appeal and determination of issue of jurisdiction filed on 6/10/98 is based on two grounds of appeal which, shorn of their particulars are:-
A. That the learned trial Judge erred in law by inferring that it has jurisdiction in this matter.
B. The learned trial Judge erred in law by inferring that the issue of jurisdiction was not properly raised in this matter.
In accordance with the practice of this court parties by their respective counsel filed and exchanged briefs of argument. The defendants hereinafter referred to as the appellants filed their brief wherein they raised the following three issues for determination:-
(i) Whether it was proper in law for the trial court at the interlocutory stage to make inference and pronouncements that touched on the merits of the substantive case.
(ii) Whether or not the contractual agreement dated the 20/11/96 was within the exclusive jurisdiction of the Federal High Court and within the contemplation of applicable Constitution (Suspension and Modification) Decree 107 of 1993 at the time and section 7 of the Federal High Court Act, 1990.
(iii) Whether it was proper in law for the trial court to adjudicate on its decision made on 22//9/98 that the issue of jurisdiction was not properly raised by the appellants at the trial court.
Similarly, the plaintiff henceforth to be referred to as the respondent framed two issues for determination couched thus:-
(a) Whether it was not proper in law for the trial court to consider amongst other things the competing rights of the parties to justice and/or balance of convenience between the parties in its ruling on the interlocutory application for mandatory injunction filed by respondent; and
(b) Whether the subject-matter of the suit before the trial court, the barge was within the exclusive jurisdiction of the Federal High Court and within the contemplation of section 7 of the Federal High Court Act, 1990 and the Constitution (Suspension and Modification) Decree 107 of 1993 and the Admiralty Jurisdiction Act of 1991.
On 23//3/2000 when the appeal came up for hearing, learned counsel for the parties adopted their respective briefs with oral submissions in modification thereof. Dealing with the first issue for determination in the appellants’ brief, reference was made in the said brief to the respondent’s motion filed on 24/3/98 praying for an order for mandatory injunction directing the appellants to return to the respondent the barge the subject-matter of the relief sought by the respondent in paragraph 50(a) of the statement of claim. It was contended that by granting the relief in its ruling delivered on 26/5/98, at an interlocutory stage, the court below had rendered nugatory the relief sought in the substantive action. This, the learned Senior Advocate for the appellants submitted was wrong and in support of this contention, he cited the following cases- Hart & 4 Ors v. TSKJ Ltd. & 4 Ors. (1997) 8 NWLR (Pt. 517) 424 at 430; Okehi v. International Equitable Association (Industrial and Commercial Limited (1997) 11 NWLR (Pt. 529) 424 at 436. It was further submitted that in the ruling of the trial court under consideration, the court made pronouncement touching on the merits of the substantive issue. He referred to the portion of the ruling on page 85 lines 1 to 6 of the compiled record of appeal. This, counsel submitted was prejudicial to his clients’ case as justice must not only be done but must seen to have been done.
I take it as a sound and correct proposition of the law that a court of law must not decide the very same question which is to be determined on the substantive case before it at the interlocutory stage. Judicial authorities are legion on this principle; see the following:- Egbe v. Onagun (1972) 1 All NLR 95, Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt. 216) 124; Ndoma-Egba v. Government, Cross River State (1991) 4 NWLR (Pt. 188) 733; S.C.C. (Nig.) Ltd. v. Our Line Ltd. (1995) 5 NWLR (Pt. 395) 364; I.C.O.N Ltd. FB.N. Ltd. (1995) 6 NWLR (Pt. 401) 370. In the case of D. O. Orji v. Zaria Industries Ltd. & Anor (supra) at P. 141 of the report, the Supreme Court restated the principle thus:-
It is the duty of the trial court when dealing with interlocutory matters to avoid making statements giving the impression that it has made up its mind on the substantive issue on trial before it as justice must not only be done but must be seen to have been done. In the instant case, although the appeal fails, since the learned trial Judge had expressed a view on the substantive issue before it, the interest of justice demands that the case be heard by another Judge.
To decide at an interlocutory stage an issue in the substantive case before the court is to compromise a party’s constitutional right to fair hearing which renders such a determination null and void; See the case of E.D. Tsokwa & Sons Ltd. v. C.F.A.O. (1993) 4 NWLR (Pt. 291) 120 at 128 where the court held that the breach of constitutional right to fair hearing in any trial or investigation nullifies such trial or investigation and any decision taken therein is a nullity. See also Chief Land Officer v. Alor (1991) 4 NWLR (Pt. 187) 617 at 627, Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (Pt. 53) 678. The pertinent question to ask, is whether in his ruling on interlocutory mandatory injunction the learned Judge was in breach of the principle of law under consideration? Put differently, was there a triable issue in the substantive issue which was decided at the interlocutory stage? To answer these questions, it is necessary to have recourse to the relevant pleadings of the parties with a focus on the proprietary and possessory right of either party to the barge in question. Paragraphs 2 and 21 of the statement of claim are pertinent and read as follows:-
“2. By a contract dated 20th November, 1996, the defendant rented the plaintiff’s barge known as Prim 1 for an initial period of six months at a daily charter rate of N24,000.00.
- When the defendants retained and detained the plaintiff’s barge for about two months after the expiration of the old term, the plaintiff by a letter dated 11th July, 1997 submitted its bill to the defendants for the said fresh 6 months.”
Paragraphs 2 and 9(c) of the appellants’ statement of defence are also relevant and are reproduced in part hereunder:-
”2 …
The defendants will at the trial rely on the plaintiff’s letter dated 28 May, 1997 to show that the barge prim 1 contract involving the plaintiff and the 1st defendant expired on 22May, 1997. Furthermore, the defendants will at the trial show that the plaintiff had been advised at different times to remove its barge on the ground that it was constituting a security risk and also that the plaintiff’s barge was not suitable for the purpose it was hired for.
9(c) The defendants contend that it did not renew the contract because the plaintiff’s barge was not in good working condition from 25/1/97… hence the issue of offering the barge for another term…did not arise.
What clearly emerges from the above averments is that no issue was joined by the parties on the respondent’s proprietary and possessory rights to the barge. The appellant conceded that the respondent owns the barge and was entitled to its possession since the contract for its hire or charter had expired. That being the case, it seems to me beyond doubt, that when in his ruling on the interlocutory mandatory injunction, the learned Judge granted the respondent’s prayer ordering the appellants to deliver up the barge, he was not deciding a live issue to be determined in the substantive action. In addressing this issue, the learned Judge of the court below, reasoned at Pp. 83 and 85 of the record as follows:-
”Since ownership of the barge is not in issue in this application not is it for determination in the substantive suit, this court by making an order of mandatory injunction releasing it to the applicant cannot be said to or be seen as determining an issue meant for trial at this interlocutory stage provided special circumstances are established by the applicant.
Again the court is duty bound to protect and to preserve the res in a matter pending before it, provided in doing so the court is cautious of not pronouncing on issues meant for determination at the trial of the substantive suit…
Now it is alleged that the defendants in whose possession the barge was entrusted handed over the barge to NISSCO a customer of the defendants who in turn handed over the barge to the coastal navy, who knows whom next the coastal navy will hand over the barge to, may be to international navy? These uncertainties raised serious concern about the safety and condition of the barge the subject-matter of the suit. What compensation will be adequate to pay for the barge if found missing. I am convinced in my opinion that that alone amounts to special circumstances which is capable of swaying the mind of this court and any other reasonable tribunal to exercise its discretion in favour of granting this application to the applicant, this is more so where like in this case the ownership of the barge is not disputed or in issue”.
The above finding cannot be faulted. A contrary view would not only have been unsound but a travesty of justice. No loss or injustice was occasioned to the appellants by the release of the barge to the respondent. On the contrary, it has mitigated the damages they would have been liable to pay were the court ultimately to hold that the respondent was entitled to loss of the use of the barge for the period it was in the possession of the appellants. The learned Senior Advocate for the appellants Dr. T.C. Osanakpo contended that the court below in its ruling in the interlocutory injunction made pronouncements touching on the merits of the substantive suit. He referred specifically to the following passage on P. 84 line 31 et esq of the record:-
”My comment here is that in as much as I agree with the learned Senior Advocate that the daily hiring rental of the barge is fixed and the remedy of the plaintiff is by damages if he succeeds, but considering the other alleged losses, such as loss of requisition venture in the United States, the accumulating bank interest being paid on money borrowed by the plaintiff in the requisition of the barge as indicated in paragraphs 47-51 of the plaintiff’s statement of claim and most importantly the condition and safety of the barge for now, the cost of the barge itself is not estimated.
With due defence to the learned Senior Advocate, I am unable to agree that from the above passage the learned Judge made pronouncements on the merit of the substantive suit. Of course, in considering the conditions for the grant of an interlocutory injunction, particularly in balancing the competing interests of the parties to see where the balance of convenience lies, the court is bound to make reference to the claims of the parties. Such reference without more cannot amount to a pronouncement on the merits of the substantive suit. I will therefore resolve the issue under consideration against the appellants and in favour of the respondent.
The appellant’s second and third issues were argued together. Condensed, the two issues deal with the jurisdiction of the Federal High Court to adjudicate over the matter and the proper method of challenging or raising the question of the jurisdiction of a court. In respect of the first limb of this issue relating to the jurisdiction of the Federal High Court, after a short oral argument before us, counsel to the appellants suddenly conceded that the court below has jurisdiction over the subject of this appeal. I commend him for step taken. It is settled law that the question of jurisdiction of a court is a fundamental issue, for a decision reached without jurisdiction is a nullity. Before a court can properly assume jurisdiction over a case, the subject-matter of the case must be within the jurisdiction of the court: Madukolu v. Nkemdilim (1962) SCNLR 234. The issue of jurisdiction being fundamental to adjudication can be raised for the first time in the trial court or in the Court of Appeal or even in the Supreme Court and by any of the parties or by the court itself suo motu; see Oloriade v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195.A court is not only entitled but bound to put an end to the proceedings if at any stage and by any means it becomes manifest that they are incompetent. It is well established that the jurisdiction of the court is determined not only by the nature of the claim before it but also by other considerations in the absence of which there can be no jurisdiction. Hence the first consideration in its determination is the claim as endorsed, on the writ of summons and the statement of claim:
Enwezor v. Onyejekwe (1964) 1 All NLR 14; Adejumo v. Military Governor of Lagos State (1972) 1 All NLR 159; Ndaeyo v. Ogunaya (1977) 1 S.C. 11. Thus where the claim endorsed on the writ of summons and statement of claim discloses a cause of action and the subject-matter of the action is within the jurisdiction of the court, and the plaintiff is competent to bring the action and the court is not otherwise disqualified either in its membership or enabling statute to adjudicate, the court has jurisdiction to hear the action; Madukolu v. Nkemdilim (supra) Anya v. Iyayi (1993) 7 NWLR (Pt. 305) 290 at 309.
To ascertain if the court below has jurisdiction over the subject-matter of this appeal, it is necessary to refer to the reliefs sought by the respondent as reflected in paragraph 50 of the statement of claim which reads thus:-
”50. Wherefore the plaintiff has suffered huge loss and damage and claims against the defendants jointly and severally as follows:-
(a) An order of this Honourable court directing the immediate delivery up by the defendants to the plaintiffs’ barge prim 1 in the condition in which it was lease to them.
(b) The sum of N4,380,000.00 (Four million, three hundred and eighty thousand Naira) being rent for the barge for the six months period from 23rd May, 1997 to 23rd November, 1997 at the daily rate of N4,000.00.
(c) The sum of N24,000.00 (Twenty four thousand Naira) per day as rental for the said barge from 24th November, 1997 until delivery up by the defendants.
(d) the sum of $20,000,000.00 (Twenty Million Dollars) being special and general damages arising from loss of acquisition venture in United States of America as a direct result of the defendant’s protracted default.
(e) Interest cost on the N10 Million bank facility utilized in the acquisition of the barge at the rate of 26% per annum compounded from June, 1997 until the judgment sum is paid in full.
(f) Interest of 10% per month on the said arrears in accumulated rent of the sum of N4,380,000.00 from December until fully paid.
(g) Interest of 10% per month on the accruing barge rental of N24,000.00 per day from December, 1997 until paid.
As is evident from the above reliefs, the respondent’s claim before the court arose from the hire of the barge by the appellants. The New Webster Dictionary of English Language, International Edition defines a barge as a flat bottom freight boat without sails chiefly used on rivers and canals. By Section 7(1) (d) of the Federal High Court Act, Cap 134, Laws of the Federation of Nigeria, 1990, the Federal High Court shall exercise jurisdiction in civil causes and matters of admiralty jurisdiction. By section 2(3)(f) of the Admiralty Jurisdiction Act, 1991 the admiralty jurisdiction of the Federal High Court includes ”a claim arising out of an agreement relating to the carriage of goods or person by a ship or to the use or hire of a ship whether by charter party or otherwise”. By section 26(1) of the said Admiralty Jurisdiction Act, 1991, “a ship is defined as a vessel of any kind … and includes (a) large, lighter or other floating vessel…” The yardstick for determining whether the Federal High Court has jurisdiction over the subject-matter is to see if it is specifically mentioned in any of the statutes conferring jurisdiction on that court. Where the subject-matter is not specifically mentioned in any of such statutes, jurisdiction can still be inferred under the ejusdem generis rule. In the instant case, I am satisfied that the subject matter in dispute, that is the hire of the respondent’s barge by the appellants falls within the ambit of section 2(3) of the Admiralty Jurisdiction Act 1991. The court below was therefore right and the learned Senior Advocate rightly conceded that the subject-matter of the respondent’s claim falls well within the jurisdiction of the Federal High Court.
The second limb of the issue under consideration respecting the mode for raising the question of jurisdiction in my view does not arise for consideration in this appeal, because although the court below observed that jurisdiction was not properly raised orally in counsel’s address, it nevertheless considered the objection to the jurisdiction and having reached the conclusion that the subject-matter in dispute was within its jurisdiction dismissed the motion for stay of proceedings and execution. The consideration of whether the opinion of the court below was right or wrong on the procedure for raising the issue of jurisdiction is not a proper issue for determination as its determination, one way or the other, enhance the fortunes of the appellants in this appeal. I will also resolve the second and third issues in the appellants brief in favour of the respondent.
For all that I have said herein before, I entertain no doubt in my mind that these appeals are bereft of any substance. Accordingly, I dismiss the consolidated appeals. I order that the substantive suit should be determined expeditiously by the court below. I award to the respondent against the appellants costs assessed and fixed at N5,000.00
Other Citations: (2000)LCN/0807(CA)