Owners Of The Mv Miami Maiden V. The Nigerian Port Authority (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Federal High Court, Lagos Judicial Division, holden at Lagos. The ruling was delivered on May 28, 2008 by the Hon. Justice I.N. Auta.

The facts and circumstances surrounding the case could better be discerned form the record of appeal itself. From the Record it’s so obvious the Appellant had, on October 16, 2007, filed a writ of summons in the court below seeking various declaratory reliefs and orders against the Respondent. The reliefs sought by the Appellant, vide the writ of summons and statement of claim thereof, are to the following effect:

1. An Order that the Plaintiff is entitled as owners to limit their liabilities, if any, arising as a result of the collision aforesaid to the vessel’s net registered tonnage in the circumstances of this case;
2. An Order that the Plaintiffs liability, if any, be limited under the provisions of the Merchant Shipping Act, CAP M11, Laws of the Federation 2004 to an aggregate amount equivalent to One Thousand Gold Francs for each ton of the vessel’s Net Registered Tonnage, because the occurrences took place without the Plaintiffs actual fault or privity;
3. An Order that in consequences of (1) & (2) above, the Plaintiffs (Currency Equivalent on Limitation of Liability) Order made pursuant to the above Act, to an aggregate amount not exceeding approximately N47.50 (Forty-Seven Naira, Fifty Kobo) for each ton of the Plaintiffs vessel’s net registered tonnage;
4. An Order that the net registered tonnage of the MV “Miami Maiden” is 73.340 tons;
5. An Order that in consequences of (1), (2) and (3) above, the liability of the Plaintiff, if any, is limited to a sum not exceeding the sum of N633,650 (Six Hundred and Thirty-Three Thousand, Six Hundred and Fifty Naira only) or its US Dollars equivalent hereinafter referred to as the “Limitation Funds”.
6. An Order formally constituting the said sum of N633,650 (Six Hundred and Thirty-Three Thousand, Six Hundred and Fifty Naira only) or its Dollars as the “Limitation Funds” in this case.
7. An Order admitting, on behalf of the Plaintiff the West of England Protection & Indemnity ( P & I ) Club Letter of undertaking (LOU), being a member of the international 6roup of P & I Clubs in the said sum of N633,650 (Six Hundred and Thirty-Three Thousand, Six Hundred and Fifty Naira only) or its Dollars equivalent as adequate and sufficient security for any claim that may arise as a result of the alleged collision or directing the payment of the said sum in case into Court.
8. An Order that upon the lodgment in Court of the said Limitation Funds specified in (6) and (7) above as aforesaid or such other forms of security as this Honourable Court may otherwise direct as constituting adequate and sufficient security, this and/or any such claims that may arise shall be fully secured and the Plaintiff and the MV “Miami Maiden” shall be discharged from any and/or all responsibilities in respect thereof.
9. An Order that the Limitation Funds be distributed rateably between the Defendant and such future claimants as may be entitled thereto upon proof/establishment of the respective claims.
10. An Order staying all further proceedings in any action or arbitration arising out of the said collision (including the suit herein), and that the above named defendant, and any or all other person or persons whatsoever, interested in the said collision with the said facility or other things on board the facility, or having any right, title or interest whatsoever with reference to, or arising out of the said collision, be restrained from bringing any actions against the Plaintiff or the Vessel, “Miami Maiden” in respect of the same in any other Court and for such Order or further Orders as this Honourable court may deem fit to make in the circumstances.

See Pages 1-7 of the Record

On the part thereof, the Respondent filed the statement of defence thereof, dated October 24, 2007. By the Statement of defence in question, the Respondent denied the Appellant’s claim, and thereby urged upon the trial court to dismiss the suit. See pages 76 -77 of the Record.

On March 3, 2008, the Appellant filed a motion on notice, virtually seeking same reliefs as contained in the writ of summons and the statement of claim thereof. On March 18, 2008, the Respondent filed a counter affidavit to the said motion on notice.

The said motion on notice proceeded to hearing, at the conclusion of which the learned trial Judge delivered a ruling on May 28, 2008. thereby refusing the application on the ground, inter alia, thus:

It is pertinent to note that in this case the plaintiff instituted the case first by filing his statement of claim, before filing the motion on notice. The correct practice is for the ship owner seeking to limit his liability to pay in to court and then institute proceedings for limitation. But where a ship owner settles with the claimant as in this case, he cannot turn around and invoke the provisions of section 353, of the Merchant Ship Act.

The court therefore refused this application and strike it out.

The case is adjourned to 29/07/2008 for trial.

Not unexpectedly, having been dissatisfied with that ruling, the Appellant filed a notice of appeal against the said ruling on June 6, 2008, which is predicated upon three grounds.

In the course of the pendency of this appeal, both parties filed and served their respective briefs of argument. Most particularly, the Appellant’s brief was filed on October 9, 2008 by Gamaliel Oko Esq. That of the Respondent was filed by L.A. Opawoye Esq. on July 31, 2009, but deemed properly and served on February 16, 2010.

The Appellant has raised three issues in the brief thereof, viz:

1. Whether by posting security for the release of the vessel “Miami maiden”, the Appellant has waived its right to limit its liability in the matter? (Ground 1).
2. Whether the filing of writ of summons and statement of claim in the circumstances of the case deprived the Appellant of the right to limit its liability in the matter, being a matter of pure law that can dispose of the matter once and for all? (Ground 2).
3. Whether the learned trial judge was right when he struck out the limitation application by the Appellant on an issue that was not raised by any of the parties before him? (Ground 3).

On the other hand, the Respondent has formulated a sole issue in the brief thereof, to wit: