The Owners of the Mv Angara & Anor V. Chrismatel Shipping Company Limited (2001)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A.

 In the court below (Federal High Court) presided over by Okeke J. the plaintiff (hereinafter referred to as respondent/cross-appellant) claimed against the defendants (hereinafter referred to as appellant) jointly and severally the sum $258, 850.58 being expenses incurred by the defendants on the account of the plaintiff as agents of the 1st and 3rd defendants in respect of Harbour Dues, Ship Dues, Stevedoring Charges as reflected in N.P.A. provisional bills as at 19th of November, 1998.

The background facts of this case are as follows; the second defendant vessel sailed into the Nigerian territorial waters with a consignment of cement. It was berthed at Apapa Port. The plaintiff/respondent-cross-appellant acted as agent for the vessel as well as 1st and 3rd defendants. The cross-appellant performed all the necessary appurtenant to the duties of an agent by procuring the ship entry notice, getting the vessel registered with the Nigerian Ports Authority and providing for the security of the vessel and, the members of the crew while in Nigeria. The 2nd defendant/appellant finally finished the discharge of the goods laden on board in February 1999.

The Nigerian Ports Authority called for the settlement of the provisional and final bills sent to the appellant. The cross-appellant sequel to the refusal to pay, brought an application ex-parte for the arrest and detention of the ship. The attempt to arrest the second appellant was foiled, but the appellants provided security of US $500,000 to the respondent/cross-appellant.

The appellants, by their application dated 12th March, 1999 moved the court below for an order striking out their names (1st and 2nd defendants/appellants) as parties and dismiss the claim on the grounds that;
(i) Neither MV Angara nor her owners are proper parties hereto.
(ii) The owners of the vessel MV Angara are not liable in personam for the claims therein.
(iii) No claim in rem can be validly constituted against the vessel MV Angara.

In a considered ruling delivered on 18th October, 1999, the learned trial Judge sustained the grounds upon which the motion was predicated and went on to say that, in law, he was bound to grant the application but concluded that he would have to defer the order to be made for reason of the fact that the 3rd defendant (S.M. Shipping Limited) who had not been served as at then might be served in future. Being dissatisfied with the said ruling, the appellants sought and obtained leave to appeal against the said ruling. The notice of appeal carries just one ground. And distilled from the ground is one issue for determination which is in the following terms;
“Whether having upheld the grounds argued for striking out the appellants, and the incompetence of action against them, the court can defer the proper order indefinitely and on the basis of a speculative and uncertain event?”

The cross-appellant as respondent to the appeal, formulated four questions for determination and they are as follows:
1. Whether the plaintiff has in its pleadings alleged that it acted as agent for the 1st and 3rd defendants or for the 3rd defendants alone.
2. If the plaintiff/respondent has averred in its pleadings that it acted as agent for the 1st and 3rd defendants, whether the trial Judge can make a conclusive findings of fact on the issue without having evidence on the merit.
3. whether the facts pleaded by the plaintiff/respondent in the statement of claim are such that they disclose a reasonable cause of action against the first and second defendants/appellants.
4. whether the Judge speculated on the evidence having regard to the plaintiff’s statement of claim and charter party between the 1st and 3rd defendants and counter-affidavit.

The cross/appellant sought and obtained leave of court for an order extending the time to cross-appeal against the said ruling of 18th October, 1999. The notice of cross-appeal carries with it three grounds of appeal. Five issues were befitted from the three grounds of appeal and set out on the brief of the cross-appellant, they are:
(1) whether the question whether or not the plaintiff has authority to act as agent for the defendants was an issue which goes to the merit of the substantive suit in view of the averments in paragraphs 2-4 of the statement of claim.
2. If the above question is answered in the affirmative whether the learned trial Judge of the lower court can properly express a conclusive opinion on the issue without first having evidence on the merit.
3. whether or not the plaintiff’s action as constituted can be maintained against the 1st and 2nd defendants in view of the provisions of Section 16(4) of the Admiralty Jurisdiction Decree No.59 of 1991.
4. when there is a question as to who is liable to pay the berth age and anchorage due who is the proper defendant to such an action having regard to the provision of Section 81 and 121 of the Ports Act Cap 361.

For a clear focus, I shall start the consideration of the appeal and cross-appeal by saying that the substratum of the appeal is the complaint against that part of the judgment where the learned trial Judge deferred the dismissal of the case against the 1st and 2nd defendants/appellants on ground that the 3rd defendant who had not been served with the processes and who might be served in the future, according to it, had the authority of the 1st defendant to appoint the plaintiff respondent as agent of 2nd defendant in Nigeria. On the other hand, through its cross-appeal, the cross-appellant has expressed its dissatisfaction against that part of the decision where the trial Judge had said that he would have dismissed the action against the 1st and 2nd defendants/appellants if the plaintiff/cross-appellant had sued them (the 1st and 2nd defendants/appellants) alone. The learned trial Judge in dismissing the application brought by the 1st and 2nd defendants/appellants to have their names struck out on the grounds set out above said inter alia:

“In the determination of this application, one must bear in mind the true position of the law as provided for in Section 5(4) of the Admiralty Jurisdiction Decree No. 59 of 1991. Generally, a claim such as that of the plaintiff/respondent, will be against the owner of the vessel or a demise charterer.
The plaintiff/respondent has introduced a new element which is that the 3rd defendant appointed it the sole shipping agent of the vessel M.V. “ANGARA” discharging at Lagos, Nigeria.
If the plaintiff/respondent had commenced the action against the 1st and 2nd defendants/applicants the 1st and 2nd defendants/applicants only, I would have easily dismissed same on the true state of the law. The affidavit and counter-affidavit filed in the present application show that the plaintiff/respondent claims it as an agent of the vessel M.V. “ANGARA” appointed by the 3rd defendant.
Where did the 3rd defendant derive the power to appoint an agent for the 2nd defendant in Nigeria? It is my humble view that the dispute as to the appropriateness or otherwise of the plaintiff/respondent’s so called appointment cannot be determined at this interlocutory stage. That is a matter to be determined in the substantive suit. See A.C.B. Ltd v. Awogboro (1996) 3 NWLR (Pt.437) 383. Should I strike out the names of the 1st and 2nd defendants/applicants and discharge the security provided at this stage, what would be the fate of the plaintiff/respondent’s claim when the 3rd defendant appears and claims that it has the authority of the 1st defendant to appoint the plaintiff/respondent as agent of the 2nd defendant in Nigeria. The plaintiff/respondent would be left without any remedy. In my view, that would result in great injustice to the plaintiff/respondent.”

I have cast a second look at the only issue raised by the appellants in their brief and the four issues identified by the cross/appellant as respondent to the appeal. First, I wish to say that the issues identified by the respondent/cross-appellant ran against the well established principle that issues for determination must not be more than the grounds of appeal formulated. see Oyekan v. Akinrinwa (1996) 7 NWLR (Pt.459) 128. Again, the cross-appeal carries three grounds of appeal and whereas the cross-appellant has formulated five issues for determination. What I have said above of the issues raised by the respondent in reply to the substantive appeal is true of the issues raised in the cross-appeal. It is important that Counsel are always mindful of the principle regulating the formulations of issues from the grounds of appeal filed.

Taking all the issues by both sides in the appeal and cross-appeal together it seems to me that they can be summarised into these two issues:-
(1) whether from the facts pleaded by the plaintiff/cross-appellant in the statement of claim it can be said that a reasonable cause of action against the 1st and 2nd defendants/appellants has been disclosed.
(2) whether having regard to the totality of the case presented before him, the trial Judge was right in the conclusion he reached.

In answering issue 1 above, I wish to start by saying that from the nature of the claim which is primarily directed at the ship, res. it can be correctly described as an admiralty action in rem. The plaintiff/cross-appellant made a claim for the services rendered on the 2nd defendant/appellant. For reason of failure to pay for the services an application ex-parte was brought to arrest the ship – 2nd appellant.  Thus, a maritime lien was brought against the res to travel with it into whosoever possession the res comes. The action of this type which is one in rem in maritime claims affords an opportunity for the plaintiff to obtain a pre-trial and pre-judgment adequate security for the satisfaction of the claims the plaintiff has against the owners of the ships in the event of a final judgment being entered in its favour. The purpose of obtaining an order for the arrest of the ship or res is to make the defendant put up a bail or provide, in advance of the judgment, adequate funds for security compliance with any judgment that may be eventually entered against it. See The Banco (1971) Probate 137 at 151 and Halsbury’s Law of England 4th Edition Volume 1 Paragraph 310. Then what are the facts pleaded by the plaintiff/cross-appellant? The relevant paragraphs of the statement of claim are, 2, 3, 4, 5, 6, 7, 9, 10 and 11; and they are as follows:-
Para 2

“The first defendants are the owners of the ocean going vessel M. V. Angara and were the owners of the aforesaid vessel at the time the events that have given rise to this suit occurred.