The M. V. “med Queen” & Ors V. J. B. Erinfolami (2007)

LawGlobal-Hub Lead Judgment Report

PAUL ADAMU GALINJE, J.C.A.

By a writ of summons dated and filed on the 4th October, 1999, the respondent herein claimed against the appellants jointly and/or severally the sum of N822, 00.00 being special and general damages for non use and negligent damage by the appellants as hirers of the respondent’s forklift since 3rd July, 1999. The writ of summons and the statement of claim dated 30th September, 1999 and filed on the 4th October, 1999 were served on the appellants. A memorandum of appearance dated 16th November 1999 was filed on the 14th November, 1999 on behalf of the appellants. Thereafter, the appellants filed a motion on notice on the 21st of January, 2000 in which they sought for an order setting aside the service of the writ of summons and the statement of claim on the 1st and 2nd appellants herein. The grounds upon which their application is founded as set out in their motion paper read:-

“1. The proceedings instituted against the defendants was commenced as an action in rem.

2. That the 1st and 2nd defendants were at the time of the issuance and service of the writ of summons and statement of claim outside the Jurisdiction of this Honourable Court.
3. That service of the writ of summons and statement of claim were not effected on the 1st and 2nd defendants in the manner prescribed by law.”

After having heard both parties on the motion on notice, Ukeje J., the leamed Chief Judge of the Federal High Court in a considered ruling held that by Section 16(3) of the Admiralty Jurisdiction Act 1991, an agent of a vessel can properly be served with court processes instead of his principal. Accordingly, the learned trial Judge dismissed the motion and ordered for the commencement of hearing of the substantive suit.

It is against this ruling that the appellants, who are the defendants in the substantive suit that is still pending before the lower courts have appealed to this court. Their notice of appeal, which is dated 4th November, 2002 and filed on the 8th November, 2002 contains three grounds of appeal. These grounds of appeal, without their particulars read as follows:-

“A. The learned Chief Judge erred in law when she held that, “By virtue of Section 16 of the Admiralty Jurisdiction Act, an agent of a vessel can properly be served instead of his principal.

B. The learned Chief Judge did not avert her mind to the provisions of Order 5 rules 1,7 and 8 of the Admiralty Jurisdiction Procedure Rules 1993, cited by counsel which prescribes the mode and/or manner of service of processes on defendants.

C. The learned Chief Judge erred in law when she assumed jurisdiction to hear the plaintiff’s claim on the ground that the claim for damage to the plaintiff’s forklift constituted a general maritime claim within the meaning of section 2(3)(k) of the Admiralty Jurisdiction Act.”

In line with the relevant rules of this court, parties filed and exchanged briefs of argument. This appeal came up for hearing on the 19th February, 2007. Mr. Babajide Koku, learned counsel for the appellants identified the appellants’ brier of argument dated and filed on the 5th April, 2004 and the appellants’ reply brief dated and filed on 8th September, 2004. Learned counsel adopted the two briers and relied on the argument contained therein. Finally, learned counsel urged this court to allow the appeal. In reply, Mr. C. I. A. Okafor, learned respondent’s brief of argument dated and filed on the 15th July, 2004. Learned counsel adopted the brief of argument and relied on the argument contained therein and urged the court to affirm the decision of the lower court by dismissing the appeal.

From the three grounds of appeal, the appellants formulated two issues for the determination of this appeal. These issues are set out at page of the appellants’ brief of argument and they read as follows:-

1. Whether service of a writ of summons issued in rem against a vessel or a person resident outside the court jurisdiction can be deemed proper service if left with a local agent within jurisdiction.
2. Whether the claim for non-use and negligent damage to the plaintiff’s forklift constituted a general maritime claim within the meaning of section 2(3)(k) of the Admiralty Jurisdiction Act, 1991, thereby falling within the purview of the jurisdiction of the Federal High Court.”

The respondent on the other hand also formulated two issues for the determination of this appeal. These issues which are at pages 1-2 of the respondent’s brief of argument read as follows:-

“1. Whether the hiring of the respondent’s forklift by the appellants to enable them discharges cargo from their vessel which resulted in negligent damage to the said forklift by the 1st appellant can validly come under the Admiralty Jurisdiction of the Federal High Court.

2. Whether the court below, having regard to the procedural difficulties involved in admiralty actions can validly grant the appellants’ prayers in view of the respondent’s application for leave to amend,”

The law is settled that issues for determination must arise from the grounds of appeal. Where a respondent does not file a cross appeal, the issues for determination formulated by him must relate to the grounds of appeal filed by the appellants. Where such issues for determination are not related to the grounds of appeal, they will be liable to be struck out. See Takum L.G. v. U.C.B (Nig) Ltd (2003) 16 NWLR (Pt.846) 288 at 298-299 paragraph G-B: Williams v. Daily Times (Nig.) Ltd.(1990) 1 NWLR (Pt.124) 1 and Falola v. Union Bank of Nig. Plc (2005) 7 NWLR (Pt.924) 405 (2005) 2 SC. (Pt.11) 62 at 72.

In the instant appeal, the 2nd issue for determination which the respondent formulated is not related to any of the three grounds of appeal. None of the three grounds touched on the respondent’s application for leave to amend, nor is there anything in the grounds of appeal that complains about the procedural difficulties involved in Admiralty actions which would work against the court in granting the appellants’ prayers, The motion to amend, which is mentioned herein, does not form part of the record of this appeal and it is not mentioned in any of the grounds of appeal. The 2nd issue therefore and all the argument canvassed thereon are incompetent and are accordingly struck out