S.A.Oteju & Anor V. Magma Maritime Services Limited & Anor (1999)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

In the court below (the Federal High Court, Lagos Division) the plaintiffs (hereinafter referred to as respondent/cross appellants) claimed against the defendants (hereinafter referred to as the appellants/respondents) the following reliefs:-

(1) N2,839,000.00 (Two Million, Eight Hundred and Thirty-Nine Thousand Naira) being the equivalent of $33,314.00 (Thirty-Three Thousand, Three Hundred and Fourteen Dollars) calculated at the autonomous rate of N85.00 per dollar being the amount owed the plaintiff by the defendants as at 22nd of March, 1993 in that the defendant failed or neglected to effect payment for Auto Gas Oil supplied by the plaintiff and/or his agent to the defendants’ vessels (M/V Seafriend and Victory, Reefer) at the defendants’ request.

(2) The plaintiffs also claim interest on the said amount at the regulated rate of 21 % monthly from 1st April, 1993 till judgment and thereafter at the same rate until the final liquidation of the entire sum with costs.

The appellants, in the main appeal who are the respondents to the cross appeal, upon the service of the court summons on the first defendant/appellant/respondent brought an application to have the service of same set-aside for reason of noncompliance with the Rules of Court. The main plank of the application to set aside was that the 1st appellant/respondent was not personally served with the writ of summons. After taking arguments from counsel on both sides the trial judge, based on the proof of service filed by the court bailiff ruled that the 1st appellant/respondent was served with the process personally in terms of Order 10 Rule 16 of the Federal High Court Rules. The ruling of the court was delivered on the 16th of October, 1996. Again by an application on notice dated 25th October, 1996 but filed on 11th December, 1996, the appellants/respondents prayed the court below for an order dismissing the suit on the ground that it is an abuse of the court process or in the alternative for an order consolidating the suit with Suit No. FHC/L/CS/108/96: Golden Rules Limited and M. V. Victory Reefer versus Magna Maritime Services Ltd. and U.D.U. Etuk. Suffice it to say that the suit that led to the bringing of this appeal and cross/appeal is FHC/L/CS/209/96: Magna Maritime Services Ltd. and U.D.U. Etuk S.A.B. Oteju and Golden Rule Nigeria Ltd. The grounds upon which the application for dismissal or consolidation was founded are that the claim in FHC/L/CS/209/96 and that in FHC/L/CS/108/96 are the same, the parties in the two suits are substantially the same, the subject-matters in the two suits are the same and finally that Suit No. FHC/L/CS/108/96 was first in time and the plaintiffs in Suit No. FHC/L/CS/209/96 were served before they issued the suit (FHC/L/CS/209/96) on 27th February, 1996. The respondents/cross-appellants had filed their statement of defence and counter-claim on the 30th of July, 1996 in Suit No. FHC/L/CS/108/96. Reacting to the application for dismissal or in the alternative for consolidation, the plaintiffs/respondents/cross-appellants in a counter-affidavit sworn to on their behalf by their counsel on 25th April, 1997 deposed to the fact that Suit No. FHC/L/CS/108/96 had been struck-out on 23rd April, 1997 by Hon. Justice G.A.A.T. Jinadu. An enrolment of the order to that effect was attached to the said counter-affidavit. By an application dated 25th April, 1997, the plaintiffs in FHC/L/CS/108/96 prayed the court to relist on the cause list, the suit that was struck-out on the 23rd April, 1997.

Being dissatisfied with the Ruling of Justice Ukeje delivered on the 16th of October, 1996 in Suit No. FHC/L/CS/209/96 wherein it was held that the defendants/appellants/respondents were properly served with the writ of summons, consequently, dismissing the application to set aside, the service and the Ruling of the same learned trial judge delivered on the 18th of June, 1997 in the same suit dismissing the application filed on 12th June, 1997 praying for an order for stay of further proceedings in the suit pending the Ruling of Hon. Justice G.A.A.T. Jinadu in Suit No. FHC/L/CS/108/96 reserved for 11th August, 1997 or in the alternative adjourn further proceedings in the suit to a latter date after the ruling of the said Justice Jinadu, the defendants/appellants filed a Notice of Appeal, on 3rd July, 1997, Sequel to the said Notice of Appeal, the defendants/appellants brought an application dated 4th August, 1997 and filed on 11th August, 1997 before the court below praying for an order staying further proceeding in the suit pending the hearing and determination of the appeal lodged in the matter. In a reserved ruling delivered on the 4th of November, 1997, the court below dismissed the application for a stay of further proceedings. But before the delivery of the ruling of 4/11/97, the defendants/appellants had brought two applications both dated 30th October, 1997; the one praying for an order extending the time within which to file the statement of defence for defendants in the suit; suffice it to say that a copy of the proposed statement of defence was annexed to this application. The other application is for the leave of the court below to allow the defendants change their counsel from S. A. Adeyemo Chambers to Messrs. Imey & Coker. On the 4th of November, 1997, the application for leave to change counsel was granted. Immediately, thereafter without entertaining the defendants/appellants’ application for an order extending the time within which to file the statement of defence for the defendants, the court below went ahead to deliver its judgment in the substantive suit. In the course of delivering the said judgment the trial court said in the concluding part making the consequential orders, inter alia

“The plaintiffs’ case therefore succeeds on its entirety and I award the sums as claimed that is –

(a) U$33,314.00 (Thirty Three Thousand, Three Hundred and Fourteen Dollars US), being the sum owing and proved by the plaintiff as owing to it by the defendants; or its naira equivalent at the prevailing rate of exchange on the date of payment.

(b) I refuse to award pre-judgment interest at the rate of 21% which by Exhibits K2-K2 is put at 18,564.31. There is no proof that interest was agreed or contemplated between the parties at the time of the contract. So, that head of claim fails and it is dismissed.

(c) Interest at 5% per annum from the date of judgment until final liquidation in terms of Order 45 Rule 7 of the Federal High Court (Civil Procedure) Rules Cap 234 Laws of the Federation of Nigeria 1990, is awarded to the plaintiff.”

Again, dissatisfied with the said judgment of 4th November, 1997 the defendants/appellants lodged a Notice of Appeal dated 5th November, 1997 incorporating three original grounds of appeal.

The plaintiffs/respondents also not satisfied with part of the decision of the lower court which dismissed the head of claim for prejudgment interest at the regulated rate of 21% from April 1993 till judgment filed a Notice of Cross-Appeal which contains one original ground of appeal.

When this appeal came before us on the 23rd September, 1999, Mr. Vincent Chieyine, learned counsel for the defendants/appellants/respondents in the cross/appeal referred to the appellant’s brief filed on 18th September, 1998. The amended Appellants’ Reply Brief filed with the leave of the court on the 27th of July, 1999 and the Cross/Respondents’ brief filed on 12th April, 1999 and the Reply to the Preliminary Objection filed on 8th March, 1999 and adopted all of them while urging that the appeal be allowed and the cross/appeal be dismissed.

Mr. Abang, learned counsel for the Plaintiffs/Respondents/Cross-Appellants referred to the Notice of Preliminary Objection brought pursuant to Order 3 Rule 15(1) of the Court of Appeal Rules Cap. 62 Laws of the Federation, section 220(1A) and section 277(1) of the 1979 Constitution as amended which challenges the competency of the Notice of Appeal and the argument on which has been well articulated in the Respondents’ brief to the Main Appeal filed on the 5th of October, 1998; he adopted the said Notice of Preliminary Objection, the Respondents’ brief to the Main Appeal filed on 5th October, 1998 and the Cross/Appellants’ brief filed on 3rd August, 1998. While urging that the Cross-Appeal be allowed and the main appeal dismissed, he cited in support of his second contention in the Preliminary Objection that the grounds of appeal are incompetent cases like (1) Katto v. CBN (1999) 6 NWLR (Pt.607) 390 and (2) Nigeria-Arab BankLtd. v. Comex (1999) 6 NWLR (Pt. 608) 648. On the point that fresh issues raised without leave of Court should be discountenanced be cited Jov v. Dom (1999) 9 NWLR (Pt.620) 538.