BARASIMPIRI v. DAEWOO NIGERIA LIMITED & ANOR (2018)

In The Court of Appeal of Nigeria

On Monday, the 25th day of June, 2018

CA/PH/473/2015

Before Their Lordships

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria


Between

SAMUEL TAMUNO BARASIMPIRI Appellant(s)

AND

1. DAEWOO NIGERIA LIMITED
2. CHUKWU APIA DIKIBO Respondent(s)

…………………….A…………………….

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the decision of High Court of Rivers State, Okrika Judicial Division, holden at Port Harcourt S.C. AMADI J., presiding delivered on 22nd December, 2009 in Suit No. WHC/4/2003. The Appellant as Claimant took out the Writ of Summons on 18th February, 2003 against the Respondents as Defendants accompanied with a Statement of Claim containing 9 paragraphs wherein he claims against the Defendants jointly and severally the following: –WHEREFOR Plaintiff claim against the defendants jointly and severally for the following: –
(a) Special damages – N543,700.00
(b) General damages – N1,456,300.00
N2,000,000.00
Being special and general damages for the capsizing and destruction of plaintiffs hand pull wooden canoe and fishing net, fishing traps etc arising from the negligence and/or recklessness of the defendants on 17th April, 2000.” (pages 4  5 of the record of appeal)
The endorsed Writ of Summons dated 18th February, 2002 is on pages 1  2 of the record of appeal while the Statement of Claim is on pages 3  5 of the record of appeal. The Defendants filed a joint Statement of Defence containing 10 paragraphs dated 19th June, 2003 on pages 7  8 of the record of appeal wherein they denied the claims of the Claimant and urged the Court to dismiss same. The Claimant filed a Reply to the Joint Statement of Defence dated 13th October, 2003 on page 9 of the record of appeal. List of Witnesses and their written depositions together with list of documents to be relied upon during trial accompanied the pleadings of parties. Pleadings having been joined, the matter went to trial.
Hearing commenced on 15th April, 2005 when P.W.1 (who is the Claimant/Appellant) entered the witness box and testified. After adopting his written deposition, he tendered a letter which he asked his solicitor to write to the Project Manager of the 1st Defendant dated 3rd January, 2003 and the letter was admitted in evidence and marked as Exhibit A. (Copy of the letter is on pages 19  20 of the record of appeal). On 23/4/2007 C.W.2 entered the witness box. He is Mr. Sika Kalio a fisherman who rescued the Claimant and another person from the Okrika River.
The Defendants also called two witnesses, to wit; D.W.1 Chukwu Abia Dikibo (the 2nd Defendant/Respondent) who testified on 5th June, 2008. After adopting his written deposition he tendered the following documents in evidence which were marked as Exhibits: –
(1) Charge Sheet in Charge No. WMC/31/C/2000: Commissioner of Police Vs. Chukwu Apia Dikibo Exhibit B. (page 35 of the Records).
(2) Record of proceedings before the Senior Magistrate Court Okrika (which is on pages 36  39 of the record of appeal) was marked as Exhibit C.
(3) Proof of Evidence (on pages 40  43 of the record of appeal) was tendered in evidence and marked as Exhibit D.
(4) During cross-examination of D.W.1 the Police Report of the incident was admitted and marked as Exhibit E.
D.W.2 is Mr. Ajuboopu Lazarus. He testified after adopting his written deposition on 19th January, 2009. He was cross-examined by learned counsel to the Claimant. Thereafter written addresses were filed, exchanged and adopted and the learned trial Judge adjourned for judgment. (The entire proceedings of the trial Court is on pages 66  87 of the record of appeal).
Judgment was delivered by the learned trial Judge on 22nd December, 2009. It is on pages 87  107 of the record of appeal). The learned trial Judge reviewed the pleadings and evidence adduced before him. He considered the issues formulated by learned counsel in their final written addresses. He resolved the issue of jurisdiction first by holding that the lower Court has jurisdiction to hear and determine the Claimants claims. The learned trial Judge then held that the claimant did not proffer evidence

…………………….B…………………….

to support his claim for special damages and he dismissed that claim. As for general damages the learned trial Judge held that the Claimant is entitled to that and awarded the sum of N100,000:00 in favour of the Claimant as general damages. (see page 107 of the record of appeal).
This decision aggrieved the Claimant and he filed a Notice of Appeal on 22nd September, 2015 pursuant to the Order of this Court issued on 16/9/2015 wherein he was given 14 days to do so as shown on page 108 of the record of appeal. The Notice of Appeal containing two grounds of appeal is on pages 110  114 of the record of appeal. The two grounds of appeal, shorn of their particulars, are as follows: –
GROUND ONE: ERROR IN LAW:
A: The Learned Judge erred in law in stating that Claimant failed woefully to prove his claim for special damages even when same were proved in evidence which remained unchallenged or uncontroverted by the Defendants.
GROUND TWO: ERROR IN LAW:
B:  The Learned Judge erred in law to award the sum of N100,000:00 (One Hundred Thousand Naira) only as general damages without any evidential basis for such a low award vis–vis the whole claim of the Claimant and which had been successfully proved.
RELIEF(S) SOUGHT FROM THE COURT OF APPEAL:
To allow the appeal and grant the special damages prayed for by the Appellant and review upwardly the award of general damages.
The Records of appeal was compiled and transmitted to this Court from the lower Court by the Appellant on 1st December, 2015. (Order 8 Rule 4 of the Rules of this Court 2016). Appellants Brief of Argument was prepared by G. I. Abibo Esq. (SAN) and filed on 7th December, 2015. Learned senior counsel formulated two issues out of the two grounds of appeal as follows: –
1: Did the Appellant prove his claim for special damages as required by law and was the learned trial Judge right to overlook such available evidence which was unchallenged and uncontroverted? (Ground 1)
2: Whether the award of N100,000.00 (One Hundred Thousand Naira) as general damages by the trial Court was not unreasonably low in view of the available evidence in the case.
The Respondents Brief of Argument was settled by V.N. Ihua-Maduenyi Esq. It was dated 28th January, 2016. Filed on 13th April, 2016, but deemed as properly filed and served on 20th February, 2018. Learned counsel formulated three issues as follows: –
1: Whether the Appellant satisfactorily proved his claim for special damages (Ground 1.)
2: Whether the award of N100,000.00 (One Hundred Thousand Naira) by the trial Court violates the principle for award of general damages (Ground 2)
3: Whether this appeal is competent (Grounds 1 and 2 of the Respondents Notice).
Learned counsel to the Respondents compiled and transmitted a Supplementary Records of Appeal on 16th December, 2015. In it learned counsel filed a Notice by Respondents of Intention to contend that the decision of the Court below be varied.
The grounds upon which the Respondents intend to rely are as follows: –
1) That the claim before the lower Court is a Maritime Claim within the meaning and purview of the Admiralty Jurisdiction Act, Cap S5, Laws of the Federation, 2004 and by the combined effect of Sections 2(3) (a) and 19 of the Admiralty Jurisdiction Act and Section 251(1) (g) of the Constitution of the Federal Republic of Nigeria 1999

…………………….C…………………….

(as amended) the claim of the Claimant/Appellant is incompetent and the lower Court ought to have declined jurisdiction to entertain same.
2) That where a Court lacks the jurisdiction to entertain an action, it acts in vain and any judgment or order delivered or made is a nullity and cannot give rise to a competent appeal.
The third issue formulated by the Respondents was couched from the Respondents Notice.
Learned counsel to the Appellant filed a Reply Brief wherein he replied to the 3rd issue canvassed by the Respondents. It was filed on 2nd June, 2016 but deemed on 20th February, 2018.
Upon a careful perusal of the issues canvassed by parties, it is obvious that issues 1 and 2 formulated by the parties are similar, while issue 3 raised by the Respondents touches on the jurisdiction of the lower Court, and by extension this Court, to hear and determine this appeal. It is surprising that learned counsel to the Respondents did not raise that issue as a preliminary objection since it touches on the jurisdiction of the Court.
The law is trite that an objection to the jurisdiction of a Court can be raised at any time, even where no pleadings are filed and the party raising such objection need not bring it under any rule. See A.G. KWARA STATE V. OLAWALE (1993) 1 NWLR {Pt. 271} 645 at 675. Where an issue of jurisdiction is raised in a Court it must be determined in limine to avoid embarking on an exercise in futility. See MAISHANU V. MANU (2007) 7 NWLR {Pt. 1032} 42 at 51. That is why I will consider issue 3 canvassed by learned counsel to the Respondents first before I consider issues 1 and 2 if the need arise.
Issue 3 is: –
Whether this appeal is competent (Grounds 1and 2 of the Respondents Notice).
In his submission on this issue, learned counsel to the Respondents argued that they have challenged the jurisdiction of the lower Court on the ground that the Appellants claims qualified as Maritime Claim within the meaning of Section 2(3) (a) of the Admiralty Jurisdiction Act Cap S.5 Laws of the Federation of Nigeria 2004. That in his judgment, the learned trial Judge agree that the Vessel involved in the accident is ship within the meaning of Section 25 of Admiralty Jurisdiction Act (Supra) but proceeded to reject the submissions of the Respondents on the basis that the issue of jurisdiction was not pleaded or raised as a point of law in the Respondents Pleadings and the Appellant was thereby taken by surprise by the final written address of the Respondents. That the Defendant/Respondents did not plead that the Okrika River is a Federal Waterway and the said River is not mentioned in the National Inland Waterway Authority, Cap N47, Laws of the Federation of Nigeria 2004 as a Federal Navigable Water.
Learned counsel submitted that the learned trial Judge misconstrued the provisions of Section 10 of the National Inland Waterways Authority Act, which provides thus: –
The rivers and their tributaries, distributaries, creaks, lakes, lagoons and intra-coastal waterways specified in the second schedule to this act are hereby declared federal navigable waterways.”
Learned counsel submitted that from the ordinary interpretation of this Section, a finding that a river is not a Federal Navigable Waterway must be premised on the fact that such a River is not a tributary or distributary of any of the rivers contained in the schedule. That the finding by the learned trial Judge as he interpreted Section 10 (Supra) is erroneous.
Learned counsel submitted further that the issue of jurisdiction, being a threshold issue can be raised at any time and even viva voce as held in PETROJESSICA ENTERPRISES LTD V LEVENTIS TECHNICAL CO. LTD. (1992) 5 NWLR {Pt. 244} 675. Learned counsel urged the Court to hold that trial Court

…………………….D…………………….

lacked the jurisdiction to hear and determine the Appellants claims. That the suit and this appeal are incompetent and should be struck out.
In his reply to this issue in the Appellants Reply Brief, learned counsel submitted that the same Respondents raised this issue in Appeal No. CA/PH/137/2011 DAEWOO NIG. LTD & ANOR V. MR. SAMUEL TAMUNOBARASIMPIRI which said appeal was withdrawn by the Respondents in 2011 and same was dismissed pursuant to Order 11 Rule 5 of the Court of Appeal Rules, 2011. That there is no appeal against that order by this Court. Thus the Respondents were precluded from raising the issue again in this appeal as it tantamount to abuse of Court process.
In the alternative, learned counsel to the Respondents submitted that on page 101 of the Records the learned trial Judge held that the Appellants claim is based on tort of negligence. That the Respondents did not appealed against this holding. Learned counsel quoted the holding by learned trial Judge on page 101 of the Record of Appeal to buttress his argument. That since the Respondents did not appeal against the holding, they cannot hide under Respondents Notice in their attempt to have same set aside. That a Respondent is precluded from raising a fresh issue and/or rearguing his case in a Respondents Notice. Cited: – OGUNBADEJO V. OWOYEMI (1993) 1 NWLR {Pt. 271} 517. That reliance on Section 10 is a special defence which must be specifically pleaded in a statement of defence as failure to do so is fatal. Cited: –ONYEWEIZOR V. OPUSUNJI (2002) 6 NWLR {Pt. 762} at 72 where it was held that a party relying on a Statutory Defence must specifically plead it. That the learned trial Judge was right when he held that address of counsel does not suffice as evidence or pleadings.
He urged the Court to so hold and resolve this issue in favour of the Appellant.
FINDING ON ISSUE 3
In order to have full grasp of this issue, I have to briefly state the facts that led to filing this suit by the Appellant as contained in his pleadings. That he (Appellant) is a fisherman. That on 17th April, 2000 he went to fish in a wooden canoe with two others, to wit; Messrs, William Oba and Inebia William Fiberesima (Deceased) on Okrika River when suddenly a Daewoo speed boat piloted by the 2nd Respondent drove recklessly and negligently and caused their canoe to capsize. As a result the Appellant and William Oba swam to safety and were assisted by some local fishermen. But Inebia William Fiberesima was not so lucky as he drowned before help could reach him. That the 2nd Respondent drove on high speed without regard to smaller canoes. That he refused to slow down to avoid high waves. That the 2nd Defendant and his co-passengers in his speed boat refused to stop to assist the Appellant and his mates in the wooden canoe. That efforts were made to settle between the Appellant and the 1st Respondent but it was not successful.
That as a result of the incident the plaintiff lost his means of livelihood, his tools of trade having been destroyed by the negligent and reckless way the 2nd Respondent piloted his speed boat on the Okrika River. Thus the Claimant claims as quoted above.
The Defendants/Respondents pleaded in their Joint Statement of Defence on pages 7  8 that their speed boat did not capsize a canoe on 17/4/2000 and none of the 1st Defendants speed boats has ever capsized a canoe at any time. That: –
5:Defendants aver that there was no such accident on the said date and Defendants were surprised to hear the allegations of boat mishap at about 12.55pm on 17/4/2000 and alleged death of a fisherman Mr. Inebia William Fiberesima.
10: Defendants aver further that Police could not prove the allegations of reckless navigation against 2nd Defendant in Court as the trial was struck out eventually. Defendants shall rely on the Charge No. WMC/31C/2000 and relevant proceedings of the Court at the hearing of this suit.”

…………………….E…………………….

As I stated above, the suit was filed before the High Court of Rivers State Okrika Judicial Division.
It is based upon this that the Respondents counsel raised the issue of jurisdiction of the lower Court to hear and determine the suit considering the parties involved in the accident, the cause of the accident and the place it occurred. That the Appellants claim qualified as a Maritime Claim as provided by Section 2(3) (a) of the Admiralty Jurisdiction Act Cap S.5 Laws of the Federation of Nigeria, 2004. (see pages 48  50 of the record of appeal). The learned trial Judge while delivering his judgment on pages 87  107 of the record of appeal held on page 99 that:-
Section 18(1) of the Interpretation Act (Supra) gives the meaning of a ship to include every description of a vessel used in navigation. It is therefore my view that a ship includes a speed boat since a speed boat is used in navigation in the water. It falls within the contemplation of Section 25 of the Admiralty Jurisdiction Act (Supra). I am therefore in agreement with the submission of learned counsel for the defendants and case of SELEBA Vs MOBIL PRODUCTION (NIG) UNLTD (Supra) 638  639, that the speed boat owned by the 1st defendant and driven by the 2nd defendant which caused the claimants hand pulling boat or canoe to capsize in the Okrika river on 17/4/2000 is a ship within the contemplation of Section 25 of the Admiralty Jurisdiction Act.
However, the learned trial Judge found that the Claimants claim is predicated on tort of negligence and not a Maritime Claim. That the Okrika river is not a Federal Waterway to cloth the Claimants claim with the garb of Maritime Claim. That: –
For a claim to be classified as a maritime claim within the contemplation of the Admiralty Jurisdiction Act, it must be shown that the act, which gave rise to the course of action took place either in the high sea or within a Federal navigable waterways. I have examined all the rivers named in the said second schedule which are designated as Federal navigable waterways and I am unable to see the name Okrika River. It therefore follows that Okrika River is not a Federal navigable waterway.”
With respect to the learned trial Judge Section 10 of the National Inland Waterways Authority Act did not restrict itself to the specifically mentioned rivers in the second schedule, rather it widens the scope by stating that: –
The rivers and their tributaries, distributaries, creeks, lakes, lagoons and intra-coastal waterways specified in the second schedule to this act are hereby declared federal navigable waterways.”
It follows therefore that if a river is not a Federal Navigable Waterway, it must be premised on the fact that such a river is not a tributary or distributary of any of the rivers contained in the schedule. I find the holding by the learned trial Judge above not in accordance with Section 10 of the National Inland Waterways Authority Act. As I stated above, the issue of jurisdiction is a threshold issue that can be raised at anytime irrespective of the Court hearing the matter. In PETROJESSICA ENTERPRISES LIMITED & ANOR V. LEVENTIS TECHNICAL COMPANY LIMITED (1992) LPELR  2915 (SC) the Supreme Court held per BELGORE, JSC (as he then was) on pages 23  24 paragraphs E  C, on the importance of jurisdiction in the process of adjudication, as follows: –
Jurisdiction is the very basis on which any Tribunal tries a case; it is a lifeline of all trials. A trial without jurisdiction is a nullity.. This importance of jurisdiction is the reason why it can be raised at any stage of the case, be it at the trial, on appeal to Court of Appeal or to this Court; a fortiori the Court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction, but once it is apparent to any party that the Court may not have jurisdiction it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity. (Osadebay V. A.G. Bendel State (1991) 1 NWLR {Pt. 169} 525; Owoniboys Tech. Services Ltd. V. John Holt Ltd. (1991) 6 NWLR {Pt. 170} 661; Katto V. Central Bank of Nigeria (1991) 9 NWLR {Pt. 214} 126; Utih V. Onoyivwe (1991) 1

…………………….F…………………….

NWLR {Pt. 166} 166.”
I have noted that the Claimant passed of his claim as a simple claim for negligence against the Defendants, but paragraph 4 of the Statement of Claim shed more light on the nature of negligence involved that gave rise to the cause of action when it states thus: –
4: Plaintiff avers that on 17th April, 2000, the Plaintiff went fishing with (2) two other persons, Messrs. William Oba and Inebia William Fiberesima (Deceased) with the plaintiffs hand pulling wooden boat while fishing at the Okrika River as aforesaid, suddenly Daewoo boat capsided (sic) the canoe. This incident happened at about 10:30 hrs. The 2nd defendants (sic) driver was negligent and/or reckless in the manner he drove the said Daewoo speed boat DN21. Also in the course of the accident the said Inebia William Fiberesima got drowned and died. The accident was indeed caused by the negligent/or reckless driving of the speed boat by the 2nd defendant.” It is obvious that since the accident occurred through the 1st Defendants speed boat it logically qualified as a maritime claim within the meaning and purview of Section 2(3) of the Admiralty Jurisdiction Act Cap S.5 Laws of the Federation of Nigeria, 2004 which states that: –
(3) A reference in this Act to a general maritime claim is a reference to: –
(a) a claim for damage done by a ship whether by collusion or otherwise.
Section 25 of the Admiralty Jurisdiction Act defined ship as follows: –
Ship means a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved and includes: –
(a) a barge, lighter or other floating vessel.
It is obvious that a speed boat is floating vessel. Therefore it is the exclusive preserve of the Federal High Court to hear and determine any admiralty matter as clearly stated in Section 19 of the Admiralty Jurisdiction Act thus: –
19: Notwithstanding the provisions of any other enactment or law, the Court shall as from the commencement of this Act, exercise exclusive jurisdiction in admiralty causes or matters, whether civil or criminal.
Also Section 251(1) (g) of the 1999 Constitution (as amended) puts its imprimatur on the exclusive jurisdiction of the Federal High Court on maritime claims when it states that: –
(g): any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their effluents and on such other inland waterway as may be designated by any enactment to be an international waterway.
Therefore, since the speed boat which caused the capsizing of the Appellants wooden canoe is a ship within the meaning of the Admiralty Jurisdiction Act, the Claimants claim is a maritime claim as provided by Section 2(3) (a) of the said Maritime Jurisdiction Act (Supra) and it is the Federal High Court that has exclusive jurisdiction over it. I noted the submission by learned counsel to the Appellant that the Respondents raised this issue in Appeal No. CA/PH/137/2011 which said appeal was withdrawn by the Respondents and struck out. That cannot and does not prevent the Respondents from raising the issue again since it is an issue that boarders on jurisdiction. It can be raised again at any time and it is not an abuse of Court process. See: A.G. KWARA STATE -V- OLAWALE (Supra) at 674  675. This issue is resolve in favour of the Respondents.
Since issue 3 has to do with jurisdiction of the Court to hear this suit and having found that the lower Court lacks the jurisdiction because the Claimants claim is a maritime claim, it is obvious that there is no basis for this Court to consider issues 1 and 2 canvassed by the parties. The only option before this Court is to also decline jurisdiction to hear this appeal, because the trial Courts decision (from which this appeal emanate) was given without jurisdiction. In view of the foregoing, it is the decision of this Court that this appeal lacks merit as the trial Court lacked the jurisdiction to hear and determine this suit. The only avenue open to the Appellant to ventilate his grievance is the Federal High Court not the Rivers State High Court. In the circumstance this appeal is struck out for want of jurisdiction. There shall be no order as to cost.
THERESA NGOLIKA ORJI-ABADUA, J. C. A.:  I agree.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have had a preview of the judgment just delivered by my learned brother Bitrus Gyarazama Sanga, JCA, I concur with his reasoning and conclusion that this appeal is incompetent and should be struck out and it is so struck out.
I make no order as to costs.

Appearances

C. E. EZE, ESQ. For Appellant

AND

V. N. IHUA-MADUENYI, ESQ. For Respondent

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