AKINRIMISI v. MAERKS NIGERIA LIMITED & ANOR (2013)

In The Supreme Court of Nigeria

On Friday, the 8th day of March, 2013

SC.128/2004

Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE Justice of The Supreme Court of Nigeria

NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

Between

MRS. ABIMBOLA AKINRIMISI –Appellant

AND

1. MAERKS NIGERIA LIMITED
2. ALRAINE NIGERIA LIMITED- Respondent

…………………….A…………………….

M. S. MUNTAKA-COOMASSIE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal Lagos Division delivered on 18/3/2004. The Appellant who was the plaintiff at the trial Federal High Court in her statement of claim dated 11/12/99 claimed the following reliefs:-a. A declaration that plaintiff is entitled to the Bill of Lading in possession of the defendants and or their agents.
b. A declaration that she has effected total payment of money due on the contract and that further payment of additional money to the first and second defendants is unjustified, unwarranted, oppressive, illegal, null and void.
c. An order for the release to the plaintiff of her goods and Bill of Lading immediately without payment of any demurrage charges.
d. An order for specific performance of the contract by causing the first and second defendants to fulfill and honour same by delivery to the plaintiff of all Goods and Household effects now in the custody of fourth defendant immediately.
e. An order of perpetual injunction restraining the first, second, third and fourth defendants and their agents, servants and or privies from withholding or continue to withhold the Bill of lading; the goods and household effects of the plaintiff now in their custody.
f. An order for the payment of N5,000.000.00 (Five Million Naira) to the plaintiff by the defendants jointly and severally as general damages for loss of use of the goods and household effects in their custody since last year. The plaintiff’s statement of claim was later amended, and the amended statement of claim was dated 4/4/2000. On 26/1/2000 on the application of the plaintiff, the trial court presided over by Okeke J, ordered that the goods in dispute be released to the plaintiff upon the production of a bank guarantee for the sum of $5,405.94, which shall be renewable pending the determination of the case. The matter was re-assigned to another court presided by Gumel J, (as he then was) and on 16/11/2000 when the case came up, the appellant applied for a date to hear her two pending applications, the trial court however proceeded to make an order that the goods be released to the plaintiff upon the execution a bond in the sum of $8,000.00 with two sureties.
He further proceeded to set aside the earlier order made by Okeke J, for the production of bulk guarantee on the ground that it was made without jurisdiction.
Dissatisfied with this order, the 3rd defendant, UCCAS Resources Nigeria Limited, had appealed to the Court of Appeal, having sought and obtained the leave of that court. In spite of the pendency of the appeal, the plaintiff again filed another application praying the court for an order for delivery of the goods in question against the 3rd defendant. The trial court on 11/2/2002 granted the application. The 3rd defendant was again dissatisfied by the order and appealed to the lower court. The two appeals were then consolidated.
After hearing the parties, the lower court allowed the appeal. The two orders made by Gumel J were set aside by the lower court.
On the order made on the 16/11/2000 the lower court inter alia, held as follows:-
“It is trite law that if a case is set down for mention no substantive matter should be taken on such day. See Mbadinuju V. Ezuka (1994) 8 NWLR (pt.364) 535. It is equally trite that since Gumel J was coming into the matter for the first time after the previous Judge Okeke J was transferred, all parties to the case must be put on notice to appear before him. It appears that these steps were not taken before the hearing of 16/11/2000. The record has been reproduced earlier in this judgment. The trial court without any application from any of the parties made the order being appealed against. It is the duty of a trial court to adjudicate on the matter placed before it and not for it to make gratuitous orders Suo Motu”.
On the order of Gumel J made on 14/3/2000, the lower court held thus:-
“It is a trite law that a trial court hearing an interlocutory matter should avoid deciding at that stage a relief that calls for resolution in the substantive case. See W.A.A.E. Co., Ltd v. Akinsete (1999) 13 NWLR (pt.636) 600. It is beyond dispute that relief for the release of 1st Respondent’s goods in the custody of the Appellant is the main relief in the substantive case. The order of the trial court made on 11/2/2002 certainly prejudge that relief. Furthermore since that order was sequel to the earlier order made on the 16/11/2000 which I have already set aside cannot stand on its own”.

The plaintiff was dissatisfied with the decision of the lower court and appealed to this Hon. Court on a Notice of Appeal containing two grounds of appeal, they are hereunder without their respective particulars, reproduced:-
1. Their lordships erred in law when in deciding the appeal they held that the Order of the trial court, that is the Federal High court, of 16/11/2000, was a nullity being a gratuitous order made suo motu.
“It is trite law that if a case is set down for mention no substantive matter should be taken on such day. See Mbadinuju v. Ezuka (1994) 8 NWLR (pt.364) 535. It is equally trite that since Gumel J was coming into the matter for the first time after the previous Judge Okeke J was transferred, all parties to the case must be put on notice to appear before him. It appears that these steps were not taken before the hearing of 16/11/2000. The record has been reproduced earlier in the judgment. The trial court without any application from any of the parties made the order appealed against. It is the duty of a trial court to adjudicate on matters placed before it and not for it to make gratuitous order suo motu. There was no application before the trial court to set aside the earlier order of Okeke J for want of jurisdiction. I agree with the submission of the learned counsel for the appellant that the order of the trial court made on 16/11/200 is a nullity…”.
b. The case of Mbadinuju v. Ezuka relied upon by their lordships was decided in 1994, a substantial period before the introduction of the Federal High Court (Civil Procedure Rules) 2000 and in any event the case does not have any bearing on the scope, effect, interpretation and application of Order 54 r.1, Federal High Court (Civil Procedure) Rules, 2000.
2. Their lordships erred in law when in allowing the appeal, they held that the order of the trial court, that is, the Federal High court, of 11/2/2002 amounted to pre-judging one of the main reliefs in the substantive claim.

…………………….B…………………….

“It is beyond dispute that the relief for the release of the 1st respondent’s goods in the custody of the appellant is the main relief sought in the substantive case. The order of the trial court made 11/2/2002 certainly prejudged that relief. Furthermore, since that order was sequel to the earlier order made on the 16/11/2000 which I have already set aside it cannot stand on its own”.

Both parties filed and exchanged their respective briefs of argument. The 1st respondent filed a cross-appeal which he supported with cross-appellant’s brief of argument. The appellant equally filed an appellant’s rely brief of argument. The two issues for determination which are similar in nature were distilled as follows:-
1. “Whether the learned justices of the Court of Appeal were right in deciding that the order of the trial court, that is Federal High Court of 16/11/2000 was a nullity “having been made suo motu.
2. Whether the learned justices of the Court of Appeal were right in deciding that the order of the trial court, that is, the Federal High court of 11/2/2002 amounted to pre-judging the reliefs in the substantive claim”.

In the cross-appeal, one issue was formulated for determination in the following terms:
“Whether the record of Appeal before the Court of Appeal contained evidence to show that the proceeding of 16/11/2000 before the lower court were conducted in Chambers”.

The appellant contended that the order of 16/11/2000 was validly made as it was based on the material before it. He contended that the trial court has an inherent jurisdiction to set aside an order that amounts to a nullity and made without jurisdiction cites Vucan Gases Limited vs. C. I. V. (2001) 5 SC (Pt.1) at 20 – 21″
Appellant refers to the provisions of order 54 of the Federal High Court Rules and submitted that the trial court has the power to make the order it made on 16/11/2000.
The learned counsel to the respondent on his own refers to the decision of MBADINUJU v. EZUKA (1994) 8 NWLR (pt.364) 535 and submitted that if a case is set down for mention no substantive matter should be taken on that date. He disagreed with the appellant’s counsel in his construction of Order 54 Rule 1 (Supra) and contended further that the provisions are mere miscellaneous provision that can only operate subject to particular rules, refers to MAERSK LINE v. ADDIDE INVEST. LTD (2002) 11 NWLR (PT.778) 317 at 359.

My lords, I have carefully examined the proceedings of 16/11/2000, and the following faults are not in dispute.
i. Gumel J. was sitting on the case for the first time, thus the case was for mention.
ii. The counsel to the 3rd defendant was not served with hearing notice against that date.
iii. There was application made by either of the parties on that day, and
iv. The Order made by the trial Court was made gratuitously and suo motu.
Considering the undisputed facts listed above I have no reason to tamper with the holding of the lower Court that the order made was a nullity.

Firstly, it is a breach of the 3rd defendant’s fundamental right to fair hearing against whom an order was made without being put on notice See SKEN CONSULT NIG. LTD v. UKEY (1981) 1 SC. 6.
Secondly, it was made when the case came up for mention. See MBADINUJU vs EZUKA (supra)
Thirdly, it was made when no such prayer was sought by any of the parties to the case.

It is trite law that the trial court, and indeed, Courts of law are bound by the prayers or claims sought before them. It cannot grant a claim or a prayer not sought. Any such claim or prayer granted without being pre-claimed by parties is invalid. It is in view of the above that I resolve the 1st issue in favour of the respondent.

On the second issue, the appellant submitted that the order made on 16/2/2002 did not pre-judge the substantive matter. The order for release is not the main order and as such the order was properly and validly made.
On the other order, the learned counsel to the Respondent contended that the order made on 11/2/2002 goes to the root of the substantive case. He referred to Appellants claim and pointed out that the main claim is to the release of the goods in dispute.
My lords, without dissipating much energy on this issue, it is clear that order of 11/2/2002 were predicated on the earlier order made on 16/11/2000 which order I have earlier held to be a nullity and set aside. Since this order has been set aside, the order of the trial Court made on 11/2/2002 can no longer stand. The said order is equally set aside.  However, it must be pointed out that this Court in a long line of cases has repeatedly warned that a Court hearing an interlocutory application should refrain from commenting or determining any of the issues in dispute in the substantive case. See BANK OF IRELAND V. UNION BANK NIGERIA LTD (1998) 7 SCNJ 385, JIMI ODUBA V. SCHEEPY (1997) 6 SCNJ 2161, MAGNUSSON V. R. KOIKI (1993) 12 SCNJ 114, KOTOYE VS. SARAKI (1994) 7 – 8 SCNJ 54, FSB INT. BANK LTD V. IMANI NIG. LTD (2000) 7 SCNJ 65, UNIVERSITY PRESS LTD V. I. K. MARTINS NIG. LTD (2000) 2 SCNJ 224, and MIKE MOMOH v. VAB PETROLLEUM INC. (2000) 2 SCNJ 200.
In the instant case, the order made by the court touched on the substantive claim and as such pre-judging the matter before it. I also resolve the second issue in favour of the respondent.

Concerning the cross appeal, I have carefully perused the record of appeal I could find no such evidence to show that the trial Court sat in chambers as claimed.

…………………….C…………………….

For the above reasons my lords, the appeal and cross appeal lack merit and they are consequently dismissed. The judgment of the lower Court is hereby affirmed.
It is quite unfortunate that a matter instituted in 1998 is yet to be heard on merit. The parties have concentrated on interlocutory matters without taking steps to ensure the hearing of the appeal on merit. If it has taken 15 years to pursue interlocutory matters how long would it take to conclude the substantive matter? This does not augur well for our administration of justice system. Indeed, it is a calculated black mail to the common law system. As a result, I hereby order that this case be given speedy and accelerated hearing at the trial Court.
I award the sum of N100,000.00 as costs in favour of the respondent herein.

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have had the benefit of reading in draft the lead judgment of my learned brother MUNTAKA-COOMASSIE, JSC just delivered.
I agree with his reasoning and conclusion that both appeals are without merit and should be dismissed.
I order accordingly and abide by the consequential orders made in the said lead judgment including the order as to costs.

Appeal and cross appeal are dismissed.

NWALI SYLVESTER NGWUTA, J.S.C.: I read in draft the lead judgment of My Lord, Coomassie, JSC and I entirely agree with the reasoning and conclusion reached.
It is trite, as held by the lower Court, that a matter set down for mention should not be heard on the day it was fixed for mention, although the parties may agree to request the Court to take the case. Also, in dealing with any interlocutory application, the Court should not delve into the substantive issue.
In the cross-appeal, the Court and parties are bound by the record. The cross-appellant did not challenge the record which does not contain evidence that the trial Court sat in Chambers.
For the above and fuller reasons in the lead judgment, I also find no merit in either the main appeal or the cross-appeal and both are hereby dismissed.

OLU ARIWOOLA, J.S.C.: I was obliged with a copy of the draft of the lead judgment of my learned brother, Muntaka-Coomassie, JSC, just delivered. I agree that the appeal is devoid of merit and should be dismissed. I too dismiss the appeal.
I abide by the consequential order in the said lead judgment.

MUSA DATTIJO MUHAMMAD, J.S.C.: I have read in draft the lead judgment of my learned brother Muntaka-Coomassie, JSC, and entirely agree with his reasonings and conclusion that the appeal as well as the cross appeal are lacking in merit. I rely on the reasons reflected in the lead judgment to dismiss the two appeals. I abide by the consequential orders made by his lordship in the lead judgment including the orders on cost.

Appearances

Appellant absent and not represented. For Appellant

AND

Mr. V. O. Ogude, for the respondent/Cross-appellant. For Respondent

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