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  • Brawal Shipping (Nig.) Ltd. vs. Aphrodite (Ent.) Nig. Ltd
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  • 2005-03-21
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Brawal Shipping (Nig.) Ltd. vs. Aphrodite (Ent.) Nig. Ltd

BRAWAL SHIPPING (NIGERIA) LIMITED

V

APHRODITE (ENT.) NIGERIA LIMITED

COURT OF APPEAL

( BENIN DIVISION )

M. S. M.-COOMASSIE JCA ( Presided and Read the Lead Judgment )

PATRICK IBE AMAIZU JCA

AMINA ADAMU AUGIE JCA

CA/B/49M/2001

THURSDAY, 25TH MARCH, 2004

ADMIRALTY - Admiralty Jurisdiction of the Federal High Court - When arises

APPEAL - Appeal in the instant case - Whether constitutes an abuse of process of court

COURT - Abuse of process of court - When an action constitutes Multiplicity of actions as element of

COURT - Abuse of process of court - Whether the appeal in the instant case constitutes

COURT - Appeal court - Power of to amend trial court’s judgment or order - Order 3, rule 23(1)(2) Court of Appeal Rules

COURT - Federal High Court - Admiralty jurisdiction of - When arises JUDGMENT AND ORDERS - Interim order - Purpose of

JUDGMENT AND ORDERS - Judgment of court - Presumption of correctness in favour of - Whether rebuttable - Effect of failure to rebut same

JUDGMENT AND ORDERS - Party against whom an order was made or judgment given - Failure of to utilize options open to him to either appeal against the judgment or apply for setting aside of same - Effect of

JUDGMENT AND ORDERS - Trial court’s judgment or order - Power of appeal court to amend same

PRACTICE AND PROCEDURE - Party against whom an order was made or judgment given - Failure of to utilize options open to him to either appeal against the judgment or apply for setting aside of same - Effect of

PRACTICE AND PROCEDURE - Party contending that court order or judgment given against him is a nullity for lack of jurisdiction Options open thereto

Issues:

1.              Whether the learned trial Judge has jurisdiction to entertain the plaintiff’s (respondent herein) claim as constituted before him, being an admiralty matter cognisable only by the Federal High Court, Benin and judgment given against the respondent and in respect of which there is a pending appeal before this Honourable Court.

2.              Whether the learned trial Judge was right in making an order ex parte that has the effect of deciding once and for all the real questions in controversy between the parties, particularly when the appellant was never heard or given an opportunity of being heard in the matter.

Facts:

Before the respondent herein commenced an action at the Edo State High Court of Justice setting at Isiokolo, he had earlier filed a similar case over the same subject with the same parties before the Federal High Court, Benin in suit No. FHC/B/CS/585/99 and the said Federal High Court gave judgment in favour of the appellant herein. Although the respondent appealed against the judgment, the appeal has been abandoned.

The respondent as plaintiff before the trial court by a motion ex parte dated 15th day of February, 2001 prayed the trial court for the following orders:

(1)           An order for leave to issue and serve the writ of summons formulated and attached to the affidavit in support of this application as exhibit ‘A’ 019 on the first defendant/respondent at No. 54 the Bar rough NW4 4 AN London, United Kingdom outside the jurisdiction of this court or through its agent in Nigeria.

(2)           An order to serve the said writ of summons on issue and all other processes in this suit on the 1st defendant/respondent through Mr. Alex Ufonmadu of Nos. 41 - 45, Ozunten Street, Umachi, Abia State Nigeria, being the appointed representative of the 1st defendant in Nigeria by sending these through courier service and deeming the filing of proof of service from the courier company as proper proof of service on the 1st defendant.

(3)           An order directing the Assistant Chief Registrar of this Honourable Court to take possession of the container No. SLBN 2255840 currently in the premises/ware house of the 2 nd defendant being the agent of the 1st defendant/respondent in old port, Warri and to sell the contents in the presence of the plaintiff and the 2nd defendant or their agents and to pay the proceeds thereof into an interest yielding bank account, pending the hearing and determination of the motion to be filed in this case.

OR ALTERNATIVELY:-

Compelling the 2nd defendant/respondent to deliver to the plaintiff/appellant the said container No. SLBN 2255840 currently in possession of the 2nd defendant and for the contents to be sold by the plaintiff in the presence and supervision of the 2nd defendant/respondent or its agents and the Assistant Chief Registrar/Senior Registrar of this Honourable Court while the plaintiff undertakes to indemnify the 2nd defendant/respondent to the extent of the proceeds of the sale of the contents of the container at the end of the case, if the plaintiff’s case is adjudged frivolous.”

The trial court upon hearing the respondent counsel, granted the above prayers on the following terms:“Order as prayed.

(1)           Leave is granted to issue and serve the writ of summons out of jurisdiction of this court and also grant substituted service of summons and all court processes on the defendants through their agent, Mr. Alex Ufomadu of

Nos. 41 - 45, Ozunta Street, Umuahia Abia State Nigeria.

(2)           The 2nd defendant/respondent is ordered to deliver to the plaintiff/applicant who shall sell the contents of the same container, the contents being perishable commodities in the presence and supervision of the 2nd defendant or its agents and the Senior Registrar of the Isiokolo High Court and the plaintiff/applicant shall file an indemnity in damages within seven days from today if this action turns out to be a failure. The motion on notice is fixed for 5/3/2001.”

Dissatisfied, the appellant herein filed a notice of appeal on 16th March, 2001, in which he challenged the orders made ex parte by the trial court.