DEROS MARITIME LIMITEDVS M.V. “MSC APAPA” & 3 ORS

CORAM

AMINA ADAMU AUGIE, JUSTICE COURT OF APPEAL

PARTIES

DEROS MARITIME LIMITED APPELLANTS

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

This is an appeal against the decision of the Federal High Court, Lagos division wherein the Appellant who was Plaintiff at the Court instituted an action against the Respondents as Defendants, claiming the sum of US$273,832.4949 (Two Hundred and Seventy-Three Thousand, Eight Hundred and Thirty-Two United States Dollars and Forty-Nine cents) as reimbursements paid by the Plaintiff on behalf of the 1st Defendant, the vessel of the 3rd Defendant, with interest at the rate of  21 per cent per annum from the dates of accrual till judgment is liquidated. The 3rd and 4th Defendants at the lower Court were served with the writ of summons and statement of claim outside jurisdiction pursuant to the order of court. However the writ was issued before the order was obtained. The 1st Defendant vessel was arrested but was subsequently released and they entered appearance and filed the necessary processed. At the close of the Plaintiff’s case, the Defendants did not open their defence but brought an application seeking for an order of striking out or setting aside the Writ of Summons and Statement of Claim on the grounds that the Plaintiff failed to seek and obtain leave to issue the processes on the Defendants who were out of jurisdiction, that the processes were invalid, null and void and that the court lacked jurisdiction. The court allowed the application and the suit was struck out for being incompetent. Dissatisfied with the decision of the trial court, the Plaintiff has lodged the instant appeal.

HELD

Appeal Dismissed

ISSUES

Whether the trial Court was right is striking out the suit of the Appellant for failure to first obtain the leave of the court to issue and serve the Writ of Summons and the Statement of Claim on the 3rd and 4th Respondents?

RATIONES DECIDENDI

ISSUE OF JURISDICTION-WHEN CAN BE RAISED

“It is settled law that the issue of jurisdiction can be raised at any stage of the proceedings, even on appeal for the first time”. PER IYIZOBA JCA

WRIT OF SUMMONS-ISSUANCE OF-REQUIREMENT FOR THE ISSUANCE OF WRIT IN AN ACTION IN REM AND IN AN ACTION IN PERSONAM

“It is not disputed by the parties that for an action in rem in admiralty matters, there is no requirement to obtain prior leave to issue writ of summons for service outside jurisdiction as the defendant vessel is deemed by operation of law to be resident within jurisdiction. But where it is an action in personam and the defendants reside outside jurisdiction, prior leave must be obtained before the writ is issued”. PER IYIZOBA JCA

ACTION IN PERSONAM-HOW COMMENCED

Order 2 Rule 3(3) of the Admiralty Jurisdiction Procedure Rules provides that action in personam shall not be commenced by the same initiating process by which a proceeding is commenced in an action in rem. PER IYIZOBA JCA

WRIT OF SUMMONS-WHERE A PARTY SEEKS LEAVE TO ISSUE A PROCESS TO A FOREIGNER-PROCEDURE THEREOF

“The plaintiff would prepare an unsigned writ and attach it to an application for leave to issue and would only proceed; to have the writ signed and issued after leave has been granted”. PER IYIZOBA JCA

CASES CITED

Agip (NIG ) LTD v. Agip Petroli Int’l (2010) 5 NWLR (Pt 1187) 348 @ 416 G-H: 423-424Carribean Trading & Fidelity Corporation v. NNPC (1992) 7 NWLR (PT. 252) 161 @ 180Ijebu-Ode L.G. V. Adedeji (1991) 1 NWLR (Pt 166) 136 SCKida V. Ogunmola (2006) 13 NWLR (PT.997) 377 &394Miti V. New Nig. Bank Plc (1997)3 NWLR (Pt.496) 737@743MV “Western Star” & Ors v. B.L. Lizard Shipping Company Ltd delivered on 7/8/13NEPA v. Onah (1997) 1 NWLR (PT.484) 680NNPC v. Elumah (1997) 3 NWLR (PT.492) 195 @204Olutola V.Unilorin (2004) 18 NWLR (Pt 90S) 416 SCOwners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182Rhein Mass Und See GMBH v. Rivway Lines Limited (1998) 5 NWLR (Part 549) 265 @ 277;Touton S.A. v. G.C.D.N.Z. S.P.A (2011) 4 NWLR (PT.1236) 1 @ 22

STATUTES REFERRED TO

1. Admiralty Jurisdiction Act, 1991

2. Admiralty Jurisdiction Procedure Rules, 1993

3. Federal High Court (Civil Procedure) Rules, 2000

4. The Limitation Act 1966

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