Admiralty

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ADMIRALTY.

(1) 1979 CONSTITUTION.

Did the 1979 Constitution confer concurrent jurisdiction on Federal High Court and

State High Court in admiralty matters.

“It occurs to me, that the issue of jurisdiction of the State High Court, thrown up by the

appellant, was highlighted by this Court in Western Steel Works v. Iron and Steel Works (1987)

1 N.W.L.R. (Pt. 49) 284at 300, paras. C-D. Therein, Aniagolu, J.S.C. pronounced as follows:-

“The issue of jurisdiction raised has now been largely settled by the latest decision of this Court

in SC.139/1985Savannah Bank of Nigeria v. Pan Atlantic Shippingand Transport Agencies

Company Ltd. And Nicannah Fooddelivered on 30th January, 1987 in which this Court held

that with the inception of the1979 Constitution of the Federal Republic of Nigeria, section 236

thereof, which gave unlimited jurisdiction to the State High Courts has conferred jurisdiction

to the State High Court thereby making jurisdiction in Admiralty concurrent in the Federal

High Court and the State High Courts.” – PerFabiyi, J.S.C., in S.P.D.C.N. Ltd. v. Anaro Suit

No. S.C. 52/2005; (2015) 12 N.W.L.R. (Pt. 1472) 122 at 178.

(2) ADMIRALTY ACTION GENERALLY.

Can admiralty action in personamand action in rem be commenced by same originating

process?

“Order 2 rule 3(3) of the Admiralty Jurisdiction Procedure Rules provides that actionin

personamshall not be commenced by the same initiating process by which a proceeding is

commenced in an actionin rem.” – Per Iyizoba, J.C.A., in Deros Maritime Ltd. v. M.V. “MSC

Apapa” Suit No. CA/L/960/2010; (2015) 1 N.W.L.R. (Pt. 1439) 51 at 70.

Can every transaction involving ship found action under Admiralty Jurisdiction Act?

“It is therefore not every transaction that involves a ship that is in action founded on the

Admiralty Act.” – Per Dongban-Mensem, J.C.A., in Iroegbu v. MV Calabar Carrier Suit No.

CA/L/371/04; (2008) 5 N.W.L.R. (Pt. 1079) 147 at 170.

Can provision for delivery of product by ship contained in contract of sale of goods

automatically give the transaction character of admiralty action?

(1) “The transaction was a contract for the sale or supply of gasoil in which the respondent was

to be the seller and the appellant the buyer. The question therefore is whether the fact that

delivery or conveyance of the gasoil was expected to be or was by shipautomatically gives the

transaction the character of an admiralty action? In the case of: - Chevron Nigeria Ltd. v. LD

Nig. Ltd.(2007) 16 N.W.L.R. (Part 1059) Page 168at Page 185 Paragraphs B-C the Supreme

Court while considering a similar case held among others as follows: “Appellant’s issue No. 2

raises the contention that the plaintiff’s claim was an action in admiralty and that therefore, a

State High Court has no jurisdiction to entertain same. The defendant would rather have the

case heard by the Federal High Court. I reproduced above a substantial part of the averments

in the plaintiff’s statement of claim. These show that in its true essence, the claim was for

breach of contract.” – Per Bada, J.C.A., in Conoil Plc v. Vitol S.A. SuitNo. CA/A/213/2010;

(2012) 2 N.W.L.R. (Pt. 1283) 50 at 87 - 88.

(2) “Further on page 187 paragraphs G - H the Supreme Court held further that: “The second

issue for determination is on the jurisdiction of the trial Court to entertain and determine the

claims of the plaintiff. The fact that the transaction between the parties giving rise to the

plaintiff’s claim involves the conveyance of the rig purchased from India to Nigeria by sea,

does not give that transaction the character of an admiralty action. Consequent upon the

foregoing, it is my view that the condition as found by the English Court that: “Delivery was

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to be ex-ship in four lots at various dates between 15th August and 14th September off Cotonou

via a ship to ship (STS) operation from a mother vessel to a daughter vessel nominated by the

buyer” did not give the transaction between the appellant and the respondent the character of

an admiralty action.” – Per Bada, J.C.A., in Conoil Plc v. Vitol S.A. SuitNo. CA/A/213/2010;

(2012) 2 N.W.L.R. (Pt. 1283) 50 at 88.

Effect of failure to obtain leave before issuance of writ of summons for service outside

jurisdiction.

(1) “Order 6 rule16 of the then Bendel State High Court Rules, which isin pari materiawith

the rules under consideration. ‘‘It is settled by the decision of this Court in that where the Rules

of the High Court provide that before a writ of summons to be served outside jurisdiction is

issued, leave of the High Court must be obtained and if no such leave is obtained prior to the

taking out of the writ then the writ is vitiated and would be declared null and void.” In the case

of Kida v. Ogunmola(2006) 13 N.W.L.R. (Pt. 997) 377@394, E-F the Supreme Court

heldinter-aliathat: “... the validity of the originating processes in a proceeding is a

condition sine qua nonto the legitimacy of any· suit. Therefore, the failure to commence

proceedings with a valid writ of summons goes to the root of the case and any order emanating

from such proceedings is liable to be set aside as incompetent and a nullity.” InNNPC v.

Elumah(1997) 3 N.W.L.R. (Pt. 492) 195@ 204 para. C, Akpabio, J.C.A (quoting Ndoma-

Egba, J.C.A in a related case) statedinter aliathat: “Failure of a plaintiff to obtainthe leave of

Court to issue and servea writ of summons on a defendant outside the jurisdiction of the Court

renders the issuance and service of such writ void notwithstanding the participation of the

defendant in the proceedings...” – Per Iyizoba, J.C.A., in Deros Maritime Ltd. v. M.V. “MSC

Apapa” Suit No. CA/L/960/2010; (2015) 1 N.W.L.R. (Pt. 1439) 51 at 73.

(2) “The learned trial Judge found as a fact in his ruling at page 450 of the records as follows:

“It is clear from the record that the writ for this action was issued before leave of Court was

obtained.” Counsel submitted that the appellant conceded the issue as it did not challenge this

all-important finding of fact in the ground of appeal. Counsel submitted that in a long line of

cases decided by this Court as well as the Supreme Court, the principle of law is now well

settled that, where a plaintiff is required to obtain prior leave of Court to issue his writ of

summons and fails to do so, the action has not been brought before the Court initiated by due

process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction

by the Court. Consequently, the Court’s jurisdiction would be vitiated thereby. This proposition

of the law, counsel submitted, is also further supported by the mandatory provisions of sections

97 and 99 Sheriff &. Civil Process Act, Cap. 407, LFN, 2004. Counsel citednumerous cases

as follows: NEPA v. Onah(1997) 1 N.W.L.R. (Pt. 484) 680;NPA v. Eyamba(2005) 12

N.W.L.R. (Pt. 939) 409;Odu’a Investment Ltd. v. Talabi(supra) @ 21 paras. B-C; NNPC v.

Elumah(1997) 3 N.W.L.R. (Pt. 492) 195@ 204, para. C;Nwabueze v. Obi Okoye(1988) 4

N.W.L.R. (Pt. 91) 664;Carribean Trading & Fidelity Corporation v. NNPC(1992) 7

N.W.L.R. (Pt. 252) 161@ 180, paras; Kida v. Ogunmola(2006) 13 N.W.L.R. (Pt. 997)

377 @394, paras. E-F;Owners of the MV ‘‘Arabella’’ v. Nigeria Agricultural Insurance

Corporation(supra)@ pg. 208, paras. C – D;Agip (Nig.) Ltd. v. Agip Petroli Int’l & Ors In

Re: Chief C. Ezendo & Ors(2010) 5 N.W.L.R. (Pt. 1187) 348@ 389, paras. G-H; 416, paras.

G-H; 423-424, paras. F-B.” – Per Iyizoba, J.C.A., in Deros Maritime Ltd. v. M.V. “MSC

Apapa” Suit No. CA/L/960/2010; (2015) 1 N.W.L.R. (Pt. 1439) 51 at 67 - 68.

Exception to the rule that an agent of a disclosed principal cannot be considered a

necessary party to an action in contract.

“Ordinarily, an agent of a disclosed principal cannot be considered a necessary party to an

action. But in the instant case there is statutory intervention. S. 16 (3&4) of the Admiralty

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Jurisdiction Act creates liability for the agent irrespective of the liability of his principal for his

acts as an agent of the owner, charterer, manager or operator of a ship. Reproduced hereunder

are the provisions of S. 16(3 & 4) of the Admiralty Jurisdiction Act: “3. A person who acts as

an agent of the owner, charterer, manager or operator of a ship may be personally liable,

irrespective of the liability of his principal, for the act, default, omission or commission of the

ship in respect of anything done or failed to be done in Nigeria. 4. A person who does anything

or carries out any duty under the provisions of this Act or under the provisions of any law in

force in Nigeria in respect of any ship in the territorial waters of Nigeria shall by doing that

thing or carrying out that duty constitute himself the agent of the ship.” – Per Agbo, J.C.A., in

Daar Comm. (Nig.) Ltd. v. W.D. (Nig.) Ltd. SuitNo. CA/L/274/2001; (2012) 3 N.W.L.R. (Pt.

1287) 370 at 383 - 384.

Meaning of “Peninsula”.

“A Peninsula is an area of land that is almost surrounded by water but is joined to a larger piece

of land.” – Per Rhodes-Vivour, J.S.C., in A-G, Cross River State v. A-G, Fed. Suit No. S.C.

250/2009; (2012) 16 N.W.L.R. (Pt. 1327) 425 at 511.

Meaning of “pier”.

“Pier - means a pier, wharf or jetty of whatever description and includes any pier, wharf or jetty

erected on or extending beyond high-water mark or ordinary spring tide or extending into the

waters of any navigable channel and also includes any portion moored in any such waters and

used as a pier, wharf or jetty. See section 127 Part XV miscellaneous provision of Nigerian

Ports Authority (NPA) Act.” – PerEkpe, J.C.A., in Total Nig. Plc. v. New Cargo Handling Co.

Suit No. CA/B/317/2009; (2015) 17 N.W.L.R. (Pt. 1489) 558 at 588.

Meaning of “Port”.

(1) “Port -means each of the Places specified in the first schedule of the Act and a Place

declared to be a Port. See section 2of Nigerian Ports Authority (NPA) (Port) Regulations.” –

PerEkpe, J.C.A., in Total Nig. Plc. v. New Cargo Handling Co. Suit No. CA/B/317/2009;

(2015) 17 N.W.L.R. (Pt. 1489) 558 at 588.

(2) “Port is a place, town or city with a harbor used for loading and unloading commodities.”

– PerEkpe, J.C.A., in Total Nig. Plc. v. New Cargo Handling Co. Suit No. CA/B/317/2009;

(2015) 17 N.W.L.R. (Pt. 1489) 558 at 588.

Meaning of “quay”.

Quay - includes any quay, wharf, pier breakwater or other landing Place belonging to or

operated by the Authority.” – Per Ekpe, J.C.A., in Total Nig. Plc. v. New Cargo Handling Co.

Suit No. CA/B/317/2009; (2015) 17 N.W.L.R. (Pt. 1489) 558 at 588.

Need for leave of Court for issuance of writ of summons for service outside jurisdiction

in admiralty actions.

“The provisions of the Admiralty Jurisdiction Act, 1991 do not constitute procedural rules

regulating the issuance and service of writs in admiralty actions since it is a substantive law

simpliciter. The applicable procedural laws are the Federal High Court (Civil Procedure) Rules

and the Admiralty Jurisdiction Procedure Rules, 1993. None of these dispenses with the need

to seek and obtain leave to issue a writ outside jurisdiction.” – PerOgunwumiju, J.C.A., in The

Owners, MV “MSC Agata” v. Nestle (Nig.) Plc Suit No. CA/L/807M/09; (2014) 1 N.W.L.R.

(Pt. 1388) 270 at 292.

Period within which to bring admiralty or maritime action.