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  • 2002-09-30
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Clemco Industries Ltd v. The Owners of MV RAB

CLEMCO INDUSTRIES LIMITED

V

THE OWNERS OF MV “RAB”

COURT OF APPEAL

( LAGOS DIVISION )

SULEIMAN GALADIMA, JCA ( Presided and Read the Lead Judgment )

PIUS OLAYIWOLA ADEREMI, JCA

CHRISTOPHER MITCHELL CHUKWUMA ENEH, JCA

CA/L/198/99

THURSDAY, 21ST MARCH, 2002

ACTION - Classification of into contract or tort - What determines

ACTION - Damages for loss or damage to cargo - Right of action therefor -  Whether can be founded in contract or in tort - Person who can sue therefore

BAILMENT - Negligence - Onus of proof of absence of - On whom lies

COURT - Superior court of record - Whether may take judicial notice of all relevant pending applications before it

JURISDICTION - Jurisdiction of court - Need for court to preserve same and construe statutes as not to displace a litigant

PRACTICE AND PROCEDURE - Demurrer proceedings - Application for  Making reference to another application filed before same court Whether permitted

PRACTICE AND PROCEDURE - Demurrer proceedings - Averments in plaintiff’s statement of claim - Bindingness of on defendant and court in demurrer application

PRACTICE AND PROCEDURE - Demurrer proceedings - Burden on defendant - How discharged

PRACTICE AND PROCEDURE - Case stated by litigant - Failure of court to give verdict thereon - Effect

PRACTICE AND PROCEDURE - Demurrer proceedings - Conflicting documents thereunder - Court comparing same without setting matter down for trial - Impropriety of

PRACTICE AND PROCEDURE - Demurrer proceedings - Examination of evidence thereunder - Need for court to start from particulars and statement of claim

PRACTICE AND PROCEDURE - Demurrer proceedings - Nature of - Duty of court when demurrer is raised as a defence - Order 27 of the Federal High Court (Civil Procedure) Rules, 1976

PRACTICE AND PROCEDURE - Demurrer proceedings - Need to exercise caution in applying same

PRACTICE AND PROCEDURE - Demurrer proceedings - Preliminary objection filed therein - When taken - Whether court can refer to any other document extraneous to the statement of claim in considering the preliminary objection

PRACTICE AND PROCEDURE - Superior court of record - Whether may take judicial notice of all relevant pending applications before it

SHIPPING LAW - Damages for loss or damage to cargo - Right of action therefor - Whether can be found in contract or in tort - Person who can sue therefor

Issues:

1.            Whether from the statement of claim and evidence of the intention of the parties to assign title, the appellant has the locus standi to institute the action at all.

2.            Whether a party who is named as Notify Party in a Bill of Lading contract and to whom the Bill was neither consigned nor endorsed have title to sue on the said Bill under the provisions of section 375(1) of the M.S.A.

3.            Whether the learned trial Judge was right to have restricted his judgment as if the action was one basically founded on a

chain of bills of lading under the carriage of Goods by Sea without considering the principal alternative cause of action founded in bailment and tort of negligence.

Facts:

The appellant, as plaintiff in the lower court issued out a writ of summons against the respondent for N50 million being damages for breach of contract and or breach of duty and or negligence of the defendant in respect of damage done to the goods during the voyage or short delivery of consignment of N8,000 metric tonnes of rice shipped through the defendant. Simultaneously, the appellant applied for and obtained an order exparte arresting the M.V. RAB belonging to the respondent so as to secure its claim.  Rather than file statement of defence, the respondent challenged the entire claim by way of demurrer application, praying the court to dismiss the entire suit.  The trial court granted the application and struck out the suit on the ground that the appellant has no locus standi to institute the action.

Dissatisfied, the appellant appealed to the Court of Appeal.