Tiga Green Farms Agricultural (Nig.) Ltd V. Mitsui O. S. K. Lines Ltd & Anor (2005)

LawGlobal-Hub Lead Judgment Report

GARBA, J.C.A.

This appeal is against the ruling of the Federal High Court in suit No. FHC/L/CS/1362/96 delivered on 31st October, 1997 in which the court struck out the suit on the ground that the appellant/plaintiff had no locus standi to sue.

The order was made in demurrer application by the respondent/defendant and the appellant being dissatisfied therewith, filed a notice of appeal on 21/11/97 containing 3 grounds. The appellant, with the leave of court, filed an amended notice of appeal on the 6/6/02 also containing 3 grounds as follows:

“3.1 Error in law

The learned trial Judge erred in law in admitting exhibit FA1 attached to the motion on notice dated 15/5/97 (demurrer proceedings) in evidence and in relying on it.

Particulars of error

The learned trial Judge failed to appreciate that in a demurrer proceedings a defendant/applicant is not allowed to tender any evidence; and that it is only the averment in the statement of claim that shall be relied upon and considered.

3.2 Error in law

The learned trial Judge erred in law in holding that the appellant had no locus standi to sue under the Bill of Lading number MOLU 430163491.

Particulars of error

a. There is a clear and unambiguous averment in paragraph ‘6’ of the statement of claim that the plaintiff/appellant was at all material time an endorsee of Bill of Lading No. MOLU 430163491 to whom property in the cargo passed upon by reason of the endorsement.

b. The learned trial Judge failed to appreciate that: the plaintiff/appellant’s payment of freight and demurrage to the 1st defendant/respondent; and the 1st defendant/respondent’s delivery of the goods to it imports a contract of carriage by sea between the appellant and the 1st respondent under the Bill of Lading No. MOLU 430163491.

Error in law

The learned trial Judge erred in law in misconstruing the facts of the cases of Sea Trade v. Fiogret Ltd. (1987-1990) 3 NSC 465; Adesanya v. Leight -Hoegh & Co. (1968) 1 All NLR 333.