Nigeria Ports Plc V. Duncan Maritime Ventures (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CLARA BATA OGUNBIYI, J.C.A (Delivering the Leading Judgment)

This is an appeal by the defendant (hereinafter referred to as “the appellant”) against the judgment of the Honourable Justice Tijani Abubakar sitting at the Federal High Court Lagos Judicial Division in Suit No.FHC/L/CS/708/05. The judgment was delivered on the 20th day of January, 2009. The plaintiff (hereinafter referred to as “the Respondent”) claimed against the appellant declaratory and injunctive reliefs together with the sums of N8,000,000.00 (Eight Million Naira) and N2,000,000.00 (Two Million Naira) as exemplary/aggravated and general damages respectively in the amended statement of claim.

The statement of claim and subsequently amended statement of claim are contained at pages 3-5 and pages 445-447 of the record of appeal respectively. Also the statement of defence and the subsequently amended statement of defence which incorporated a counter claim are contained at pages 72-74 and pages 359 – 368 of the record respectively, while the reply to the statement of defence and defence to counter claim are contained at pages 402-404 of the said record.

The property, the subject matter, centres of this claim is known and described as Plot G (11) measuring 7,445 M2TCIP Industrial Estate Tincan Island Port, Apapa – Lagos. The action was therefore commenced by a writ taken out on the 12th July, 2005. The reproduction of paragraphs 4-14 of the plaintiffs’ amended statement of claim at pages 445 to 446 of the record of appeal would give a comprehensive picture of the claim at the lower court and subject to the eventual reliefs sought for at paragraph 15 thereof. The related reference paragraphs state as follows:-

“4. The plaintiff aver that sometime in June 2001 the plaintiff was appointed as a bonded container terminal operator by the defendant. The plaintiff shall rely on letter of appointment dated 27th June, 2001 during trial to prove its case.

5. The plaintiff further aver that ever since the appointment, the plaintiff has been operating as a bonafide tenant of Nigerian Ports Authority and has been so recognized by the defendant. The plaintiff shall during trial of this action rely on the defendant’s Estate Rent Demand notes, debit note and payment receipts during trial of this action.
6. That as a result of good conduct of the plaintiff in carrying out its operation, the Nigerian Shippers Council has cause in appreciation of the plaintiff due diligence in carrying out its operation sent a letter of commendation to the plaintiff. The plaintiff shall found the letter of commendation from Nigerian Shippers Council to prove its case during such.
7. The plaintiff aver that it is the usual practice of Nigerian Authority to send a quarterly rent demand notice in arrear for the plaintiff to make payment to the defendant for the period of the demand notice. The plaintiff shall rely on the various demand notice send to plaintiff for payment by Nigerian Ports Authority.
8. The plaintiff further aver that in cause of duly and understanding reached with defendant in this case, the plaintiff has at various times and on the instruction of the defendant received and processed twenty six vessels with containers totaling 13,100. The plaintiff shall found various instruction and document from the defendant to prove its case during trial.
9. The plaintiff avers that it occupies and operates its bonded warehouse at a place known and described as 7445m2 unpaved Area at Plot 11 TICP Industrial Estate Tincan Island Port, Apapa, Lagos.
10. The plaintiff aver that in order to make the premises described in paragraph 9 above fit and habitable for the business of bonded Warehouse, did, with the consent of the defendant, invested and improved the described premises by way or rehabilitation and enhancement of the value of the place.
11. The plaintiff further states that it invested over N30,000,000.00 (Thirty million Naira) in the improvement of the premises it presently occupies.
12. The plaintiff aver that on the 27th June, 2005 the defendant invaded it’s Bonded Warehouse described above and sealed up the premises without notice.

The plaintiff shall rely on the photographs of the sealed premises during trial.

13. The plaintiff further aver that ever since the place was sealed, the defendant has threatened to use force to evict the plaintiff from it’s Bonded Warehouse herein described above.
14. That the plaintiff have lost a considerable income and good with it’s business partners.
15. Whereof the plaintiff claims against the defendant.

(i) A declaration that the seal off of the plaintiffs place of business known and described as 744m2 Plot 11 TICP Industrial Estate Tincan Island is illegal and no effect.

(ii) A perpetual injunction restraining the defendant from illegally and forcefully ejecting the plaintiff from the place described above.

(iii) Exemplary and aggravated damages in the sum of N8,000,000.00 (Eight million naira) for loss of business resulting from unlawful invasion by the defendant.

(iv) General damages in the sum of N2,000,000.00 (Two million naira).”

In response the defendant also in its amended statement of defence and counter claim had this to say at paragraphs 4, 5, 7-8, 10-18, 20, 23, 27, 33, 35-40 at pages 359-368.

“4. The Defendant vehemently denies the averments contained in paragraph 5 of the claim, and puts the plaintiff to the strictest proof thereof.

5. In further response to paragraph 5 of the claim, the defendant states that the plaintiff was at all times material to this suit a squatter and a trespasser on the property at Plot Gil Tin Can Island Port measuring 7,445m2 the subject matter of this suit and undisputedly belonging to the defendant.
6. The defendant states that the plaintiff is aware that its occupation of the property was illegal and without the authority of the defendant as the owner of the property. The defendant shall found on the plaintiffs letters dated the 25th day of February, 2004 and 27th day of June 2005 during the trial to prove its case.
7. In further answer to paragraph 5 of the claim, the defendant states that the Estate rent demand notes and debit notes were sent to the plaintiff to cover the period the plaintiff has been illegally in occupation of the property and amount due on each containers discharged by vessels stemmed to it in order to avoid revenue loss to the defendant in particular and the Federal Government in general.
8. The defendant avers that it does not create tenancy relationship by mere issuing of Estate rent demand notes and debit notes neither does subsequent payment of the amount(s) so demanded create a tenancy relationship on the defendant’s property or change the status of the plaintiff as an illegal occupant of the premises.
9. Further to paragraph 10 above, the defendant states that it is its policy in creating a tenancy relationship to issue allocation letter to its tenant and thereafter execute a Lease Agreement with the tenant. The defendant shall lead credible evidence to prove the averments contained herein during the trial and puts the plaintiff on notice to produce such agreement if any.
10. The defendant states that it has at no time sent any allocation letter or signed a Lease Agreement with the plaintiff neither has it done any act or omission that can create a tenancy relationship between it and the plaintiff in respect of the subject matter of this suit.
11. In answer to paragraph 6 of the claim, the defendant states that it is not in a position to deny or admit the averments contained therein, but however states that the averments contained in paragraph 6 of the claim are immaterial to the plaintiff’s occupation of the premises forming the subject matter of this suit.
12. In response to paragraph 7 of the claim, the defendant avers that it created a leasehold interest of twenty one (21) years over the subject matter of this suit with a company known as Chemical and Allied Products Plc (hereinafter called “the lessee”) which commenced on January 1981 and ended in December 2002 and that the letter of offer dated 8/8/90 and the Lease Agreement expressly precluded the said lessee from subletting the said property to any person or organization.
13. Further to paragraph 14 above at the expiration of the duration of the aforesaid lease (DEFENDANT/LESSEE) the defendant amply conveyed to the said lessee the fact that the lease has expired and that it is not renewable. The defendant further informed the lessee of its intention to recover the said property for its use. The defendant shall found on its respective letters dated 14/3/03, 28/4/03 and 16/2/04 to the lessee during the trial of this suit.
14. The defendant states and as specifically indicated in its aforesaid letter dated 14/03/03 to Lessee (CAPL) that it wanted to use the property then for other operations which did not include bonded warehouse operations.
15. The defendant states that the lessee informed it in a very clear and unambiguous letter dated 26/03/04 that upon the receipt of the defendant’s letter dated 16/02/04 to it informing the said lessee of the non-renewal of the said lease, it (lessee) immediately vacated the premises. The defendant shall found on the said letter ref. CAP/ACS/06/64/01 dated 26/03/04.
16. The defendant further states that the lessee never informed it that when it vacated the said premises, it sublet same to the plaintiff, neither has the plaintiff been able to show that it is in lawful occupation of the said premises.
17. The defendant further wrote to the plaintiff expressing its displeasure and the illegality of the plaintiffs continuous occupation of the property and accordingly notified the plaintiff of its intention to recover the property. The defendant shall in the course of the trial found on letters dated 16/2/04, 7/04/04, 17/5/04, and 29/6/05 respectively and the plaintiffs letter of 17/6/05 to the defendant wherein it admitted the receipt of the defendant’s letter REF.TC/EST/LL/C.1/095 of 16/2/04 and 20/2/04.
18. In response to paragraphs 8 and 9 of the claim, the defendant denies reaching any understanding with the plaintiff in respect to its occupation of the subject matter of this suit rather states that the plaintiffs receipt and processing of vessels was only in line with its duty as a “Bonded Container Terminal Operator” which it applied for and was subsequently appointed before coming into illegal occupation of the defendant’s property.
19. Further to paragraph 25 above, the defendant states that the said property was never by the usage plan of the defendant allocated, authorized to be used by the plaintiff has unilaterally without the consent and knowledge of the defendant altered and destroyed the said property thereby rendering it useless and unsuitable for the defendant’s purpose.
20. The defendant shall rely on the various notices to recover possession and all other documents relevant to this suit at the hearing of same.
21. The defendant further states that it appointed the plaintiff as a Bonded Container Terminal Operator on the 27th day of June 2001 thereby conferring on the plaintiff the privilege of handling the discharge of loads of containers which may be stemmed and/or assigned to the plaintiff’s Bonded Warehouse solely at the defendant’s discretion provided it (plaintiff) act and conforms with the said defendant’s policies and directives.
22. The defendant states that it is the practice and/or an obligation on the plaintiff and any other such organization which operates as a Bonded Container Terminal Operator to be paying to the defendant 55% inclusive of VAT (i.e. 50% + 5% VAT) of a total sum calculated on the basis of number of containers assigned/stemmed to it per ship load of containers at N500.00 and N1,000.00 per container of 20 foot and 40 foot size respectively on each day the container remains in the custody of the plaintiff and undischarged.
23. The defendant further states that the plaintiff had prior to the interim injunction granted by this court paid at various times the said charges or rent averred in paragraph 36 above to the defendant.
24. The defendant states that the plaintiff has refused and ignored to remit or pay these charges or rent due the defendant since the 28th day of July 2005 being the effective date the interim injunction was granted by this Honourable Court restraining the defendant from ejecting the plaintiff from the landed property forming the subject matter of this suit.
25. The defendant states that the plaintiff is as at the 5th day of February 2007 indebted to it to an aggregate sum of N114,387,850.00 (One Hundred and Fourteen Million Three Hundred and Eighty-Seven Thousand Eight Hundred and Fifty Naira) being the unremitted debit charges owed the defendant on all containers that were received by the plaintiff prior to 28th day of July 2005 as graphically shown in table hereunder together with a breakdown of the vessels and computations.
26. Whereof the defendant/counter claimant claim against the plaintiff as follows:-

(a)The sum of N114,387,850.00 (One Hundred and Fourteen Million Three Hundred and Eighty-Seven Thousand Eight Hundred and Fifty Naira) being the amount due the defendant/counter claimant from the plaintiff in respect of unremitted charges or rents on all containers that were received and handled by the plaintiff as a bonded Container Terminal Operator between 28/07/05 to 5/02/07 as tabulated above and from 5/02/07 to when the sum is totally liquidated.

(b) Interest at the rate of 22% per annum until judgment and thereafter at 11% until the entire debt is liquidated.