Onward Enterprises Limited V. Mv “matrix” & Ors (2008)

LawGlobal-Hub Lead Judgment Report

ADZIRA GANA MSHELIA, J.C.A.

This is an interlocutory appeal against the ruling of the Federal High Court, Lagos delivered on the 11th day of August, 2004 by Abdullahi Mustapha J. in suit no FHC/L/CS/242/2002.

By contract of Affreightment contained in and/or evidenced by Bills of lading numbered Nos. 148/02B, Nos. 148/02, Nos. 348/02, Nos. 448/02, Nos. 448/02B and Nos. 248/02 dated at Bangkok, Thailand on 25/3/2002, the Plaintiff contracted with the defendants to carry about 280,000 bags of rice from Bangkok, Thailand, to Lagos and Port Harcourt in Nigeria for valuable consideration. In breach of the contract of Affreightment aforesaid, and/or their Duty of Care and/or in breach of their duty as bailee for reward, the defendant damaged and lost some of the plaintiffs cargo. The appellant who was the plaintiff before the lower court took out a writ against the respondents and by his amended statement of claim dated 15/07/2002 appearing at page 66 of the record claimed as follows:-

“WHEREUPON the plaintiff claims as endorsees the sum of US$500, 000 only or its equivalent in Naira with interest at 21% per annum until payment, being damages suffered by the plaintiff by reason of the Defendants’ breach of contract of afffeightment and/or bailment and by reason of the Defendants’ negligence in their care of the plaintiffs cargo of rice, as well as Admiralty costs and legal Expenses.”

The appellant simultaneously, with the issue of the writ of summons aforesaid also filed a motion ex-parte for the arrest and detention of ‘MV Matrix” (1st Respondent herein) which application was granted on 02/07/02 and the Respondents vessel aforesaid was then arrested by the court. The respondents filed two (2) applications simultaneously both dated 12/7/02 and filed 15/07/02. While the first was for the release of the Respondents’ vessel, the second application sought to shift the vessel to anchorage, pending the hearing of the former for release. The appellant consented to the release of the vessel and filed consent to release on 26/07/2002. By order of court granted on 10/06/2002, appellant amended their statement of claim.

On 11/07/2003, the Respondents filed a motion on notice for stay of proceedings pending reference to arbitration in London. The motion was supported by main affidavit containing 10 paragraphs and a further and better affidavit also containing 10 paragraphs. Appellant also filed 16 paragraphs counter-affidavit. The learned trial Judge after considering the submission of counsel, in a considered ruling delivered on 11/08/2004 granted stay of proceedings pending reference of dispute between the parties to arbitration in London.

Dissatisfied with the ruling appellant filed its notice of appeal on 13/08/2004 containing 2 grounds of appeal. In accordance with the practice of this court both parties filed and exchanged briefs of argument. Appellant filed its brief on 9/02/05, while respondents brief was filed on 11/08/05 but same was deemed properly filed on 11/06/07. A reply brief was also filed by the appellant on 15/06/07.

When the appeal came up for hearing appellant’s counsel Mr. Babajide Koku adopted and relied on appellant’s brief of argument. At the same time learned counsel urged the court to allow the appeal. Similarly, respondents’ counsel Mr. Olorunfemi adopted and relied on respondents’ brief of argument and urged us to dismiss the appeal.

From the two grounds of appeal contained in the Notice of Appeal, appellant on one hand distilled one issue for determination in this appeal to wit:-

“Whether the learned trial Judge was right when he ordered a stay of proceedings at the trial court pending reference to Arbitration in London.”

Respondents on the other hand adopted the sole issue formulated by the appellant in the determination of this appeal. The issue is as reproduced supra.

In respondents’ brief of argument he raised a point which I want to resolve before considering the merit of the appeal. Respondents’ counsel contended that the two grounds of appeal do not show any challenge to the lower court’s exercise of its judicial discretion. All of appellant’s arguments on exercise of Judicial discretion must flow from the ground of appeal and argument on the issue must not be off target. See Morakinyo Vs Adesoyero (1995) 7 NWLR (Pt 409) 602 at 614 – 5 H – A.

Appellant’s counsel on the contrary in his reply brief responded to this argument. Learned counsel contended that the application which gave rise to the ruling appealed against called upon the lower court to exercise judicial discretion as statutorily conferred upon the court by section 5 of the Arbitration and Reconciliation Act (Cap A18 LFN 2004). The lower court in granting respondent’s application, exercised its discretion. Learned counsel submitted that the challenge to the grant of the application cannot therefore raise any other challenge than the exercise by the lower court of its judicial discretion granted by the section 5 Arbitration and Reconciliation Act. The lower court in granting the Respondents’ application, exercised its discretion in favour of the Respondents. It was contended that the cases of Morakinyo Vs Adesoyero supra and Urhobo Vs Oteri (1999)2 NWLR (Pt 589) 147 at 156, A – G, F – G are completely in opposite and inapplicable to this case.

I have carefully examined the two grounds of appeal and the sole issue formulated by the appellant.