SAVANNAH BANK OF NIGERIA LTD v. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD & ANOR (SC.139.1985) [1987] 3 (30 January 1987);

SAVANNAH BANK OF NIGERIA LTD (APPELLANT)

PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD & ANOR (RESPONDENT)

(1987) All N.L.R. 42

Division: Supreme Court of Nigeria

Date of Judgment: 30th January, 1987

Case Number: (SC.139.1985)

Before: Bello, Aniagolu, Coker, Karibi-Whyte, Kawu, Belgore; JJSC

The plaintiff/appellant a commercial banker, instituted this action in the High Court in respect of the sum of N1,285,313.00 being the value of rice in a letter of credit opened on behalf of the 2nd defendant in favour of an overseas supplier. The 1st defendant was sued as the clearing agent of the shipper of the rice and as agent of the plaintiff. In the alternative the plaintiff claimed the sum of N1,285,313.00 damages and cash from the 1st defendant for her negligence in parting with 57,900,50 kilo bags of rice between November 1979 and March 1980 which rice was to have been kept by the 1st defendant until the original shipping documents in the plaintiff's custody were presented to the 1st by the 2nd defendant.

The 1st defendant pleaded that the delivery of the consignment to the 2nd defendant was made between the 11th and 27th of January 1979 and not between November 1979 and March 1980 as claimed by the plaintiff. The 1st defendant further pleaded that since the writ of summons was issued on 3rd December 1980 about 2 years after delivery, the 1st defendant is not liable to the plaintiff by virtue of Article III rule 6 of the Hague Rules contained in the Carriage of Goods by Sea Act Cap. 29, 1958 Laws of the Federation. In reply to this statement of the defence the plaintiff joined issue on the averments in the statement of defence.

The 2nd defendant submitted to judgment and judgment was given against him. At the conclusion of evidence, the trial Judge found that the bank financed the purchase of the rice, that the 2nd defendant had not repaid the bank, that the plaintiff suffered loss arising from the 1st defendant's negligence. The trial Judge rejected the defence that the action was statute barred under Article III of rule 6 of the Hague Rules and so entered judgment for the plaintiff.

The 1st defendant being dissatisfied with this decision appealed to the Court of Appeal. The Court of Appeal. The Court of Appeal (Nnaemeka-Agu) dissenting allowed the appeal on the ground that it is the Federal High Court that has jurisdiction to hear and determine the matter and not the High Court of Lagos State. The Court of Appeal also held that the action was statute barred.

The plaintiff/appellant, appealed against this judgment.

HELD:

(1) Section 236 of the Constitution of Nigeria, 1979 confers an unlimited jurisdiction on the High Court and therefore the High Court is entitled to exercise jurisdiction over Admiralty matters.

(2) The provisions of Section 8 of the Federal Revenue Court Act which curtails the inherent jurisdiction vested in the State High Court is clearly inconsistent with section 236 and is void to the extent of such inconsistency by virtue of Section 1 of the 1979 constitution.

(3) There is no express provision in the 1979 constitution (as amended) which precludes State High Court from exercising Admiralty jurisdiction.

(4) Since the suit was filed in the High Court in 1980 before the Constitution (Suspension and Modification) Decree, 1984 came into force; the provisions of the Constitution as they were in 1980 before the Constitution (Suspension and Modification) Decree, 1984 came into force; the provisions of the Constitution as they were in 1980 should be considered for the purpose of the case.

(5) It is necessary when dealing with limitation of statute to determine the precise date upon which the cause of action arose because time will start to run when the cause of action arose and it is the defendant who should plead and prove that an action is statue barred.

(6) It is therefore not enough to plead a particular date because if the date is not admitted in the statement of defence it will be impossible to compute the limitation of period. Under Article III Rule 6 of the Rules relating to Bills of Lading (the Hague Rules) adopted by the Carriage of Goods by Sea Act Cap. 29, 1958 Laws of the Federation, the carrier shall be discharged from all liability in respect of loss or damage unless action is brought within one year after delivery of the goods or the date when the goods should have been delivered.

(8) In the instant case the 1st defendant/respondent failed to establish by evidence when the plaintiff's cause of action accrued and the Court of Appeal was wrong in allowing the 1st defendant's appeal on the ground that the action of the plaintiff's company was statute barred.

(9) Jurisdiction of a Court is a serious matter, that should be conferred or removed by express words. Section 230(2) of the 1979 Constitution does not confer any additional jurisdiction on the Federal High Court and does not constitute any express removal of the jurisdiction conferred on State High Courts by Section 236 of the same Constitution.

(10) The Supreme Court decision in American International Insurance Co. Ltd v. Ceekay Traders Ltd (1981) 5 SC 81 that the High Court has jurisdiction on matters specified in S.7 of the Federal High Court of 1973 is no longer the law because the decision was based on the effect Section 58 of Federal High court Act 1973 which is void for its inconsistency with Section 236 of the 1979 Constitution.

(11) The Federal High Court now therefore has concurrent jurisdiction over admiralty matters but where action was instituted before 1st October 1979 when the Constitution came into force, on an admiralty matter the Federal High Court would have exclusive jurisdiction.

Karibi Whyte (dissenting) "The issue is whether the claim is one relating to Carriage of goods by sea or it is a mere banker and customer relationship founded on the letter of credit relied upon in the claim in this action. If it is the former, there is no doubt it is an Admiralty matter and within the exclusive jurisdiction of the Federal High Court.

If the latter, the State High Court has jurisdiction. The claim in my opinion was founded on the loss or misdelivery of the goods to the 2nd defendant. The amount in the letter of credit merely indicated the loss in terms of money in respect of which the 2nd defendant was to indemnify the plaintiff. The Bill of Lading is the document of title relied upon by the plaintiffs. The Court of Appeal was right to hold that

"The action is therefore a matter properly within the Admiralty jurisdiction of the Federal High Court under Section 7(1) (d) of the Federal High Court Act 1973.

Appeal Allowed

Mr G.O.K. Ajayi, SAN.....for the Appellant (with him Mr A.A. Adedipe and Mr Adegboyega Adeleke)

Chief Sobo Sowemimo, SAN....for the Respondent (with him Mr A. Agbaje-Anozie and Mr Femi Lijadu)

Cases referred to:-

Adesanya v. President of Nigeria (1981) 5 SC112.

Adeyemi v. Opeyori (1976) 1 FNLR 149

Akinsanya v. U.B.A. (1986) 4 NWLR 273

American International Insurance Company v. Ceekay Traders Ltd.

Anglo-Saxon Petroleum Co v. Adamastos Shipping Co. (1957) 2 Q.B. 233 at 253

Barclays Bank Ltd. v. Central Bank (1976) 6 SC 175.

Barraclough v. Brown (1877) AC 615

Bronik Motors v. Wema Bank (1983) 6 SC 158 at 161.

Bucknor-Maclean v. Inlaks Ltd. (1980) 8-11 SC 1 at p. 23-25

Campbell, Ex Parte (1869) LR 5 ch 763 at 766.

Compania Columbiana Sequros v. Pacific Steam Navigation

Company (1965) 2 Q.B.D. 101, 125, 126.

The Elefterio (1957) 79 at 183.

Fas Brothers Ltd. v. Marine Merchants (Nig.) Ltd. (1978) 2 LRN 5.

G.H. Renton & Co. Ltd. v. Palmyra Trading Co. Ltd. of Panana (1975) AC 149 at 169 & 173

Goodrich v. Paisner (1957) AC 65, 88.

Goulanders Brothers Ltd. v. B. Gouldman & Sons Ltd (1958) 1 Q.B. 74 at 105.

London v. Cox LR 2 HL, 1259

London Joint Stock Bank v. British Amsterdam Maritime Agency (1910) 16 Comm. case 102, 104 L.T. 143.

London Transport Executive v. Betts (1959) AC 211 at 246.

Madukolu v. Nkemditim(1962) 1 All N.L.R. 587, 595.

Nasaralai v. Arab bank (1986) 4 NWLR 409.

New Zealand Shipping Co. Ltd. v. A.M. Salterthwaite & Co. Ltd. (1974) 1 All E.R. 1015.

Odutola v. Coker (1981) 5 SC. 197.

Peacock v. Bell 1 S and 74

Port Jackson Steve doring PTN Ltd. (1980) 3 All E.R. 257.

President of India v. Metcalfe Shipping Co. Ltd. (1969) 2 Q.B. 123.

Quinn v. Lealthem (1901) AC 495 at 506.

Rabiu v. State 5-11 SC 130 at 148.

Royal Court Derby Porclaim Ltd. v. Raymond Russel (1949) 2 K.B. 417 at 429.

Seward v. Vera Gruz (1884) 10 A.C. 59 at 68.

Sule v. Nigerian Cotton Board (1985) & NWLR (Part 5) 17.

Surakatu v. Nigerian Housing Development Society (1981) 4 S.C. 26.

Sze Hai Ton Bank Ltd v. Raarbter Cycle Ltd. (1959) 3 All E.R. 132, 184.

Trower & Son Ltd. v. Ripstein (1944) AC 254 at 263.

United City Merchants (Investment) Ltd. & Anor v. Royal Bank of Canada & Ors (1983) AC 163, 182-184.

Statutes referred to

Admiralty Jurisdiction Act, 1962

Administration of Justice Act, 1956 of England.

Companies Act, 1968

Carriage of Goods by Sea Act 29 Laws of the Federation, 1958.

Constitution of the Federal Republic of Nigeria, 1979.

Constitution (Suspension and Modification) Decree of 1966.

Constitution (Suspension and Modification) Decree of 1984).

Federal Revenue Act.

Interpretation Act, Cap. 89, Vol. III 1958 Laws of the Federation.

Interpretation Act, 1964.

The Law (Miscellaneous Provisions) Act.

Limitation Act No. 88 of 1966.

Regional Courts (Federal Jurisdiction Ordinance) Cap. 177, 1958.

Coker J.S.C. (Delivering the Lead Judgment): This appeal raises two important issues of constitutional importance. The first concerns the nature or cause of action before the Lagos State High Court and the Competence of that Court to hear and determine it. The second is whether the respondent is entitled to the protection provided under the third paragraph of Article III Rule 6 of Hague Rules in the Schedule Carriage of Goods by Sea Act, Cap. 29, Laws of the Federation, 1958.

The Appellant, a commercial banker, initiated the action leading to this appeal in the Lagos High Court. The sum claimed as loss is in respect of an amount paid to an overseas seller of a consignment of rice covered by an irrevocable commercial letter of credit issued by the plaintiff for and on behalf of its customer, the 2nd defendant.

The entire consignment of rice was shipped by the seller on a vessel called ARETI and landed safely in Lagos Port. In compliance with the terms of the credit all the original negotiable bill of lading and other document of title were transmitted to the plaintiff bank as security for the amount paid to the seller. The particular facts stated in the bill of lading material to this appeal are as follows and is headed:

"IGNES CENTRAFRICAINES OCEANS INTERNATIONAL CORP."

1. The Carrier: OCEANS International Corporation

2. Shipper/Exporter: Senrenolla Enterprises Inc.

3. Consignee: "Order of the Shipper"

4. Notify Party: Nicannar Food Company Limited

5. Also Notify: Domestic Routing/Export Institution

SAVANNAH BANK OF

NIGERIA LTD.

LAGOS NIGERIA

6. Exporting Carrier/Vessel- ARETI

7. Per Credit No.- L-8729

8. No. of Pkgs. 57,900

9. Description of Goods-Bags (2895) Metric Tons U.S. Long-Grain parboiled Rice-

As per Proforma Invoice dated 23rd May, 1978.

10. Stamped at the bottom in bold character are the following:-

"NOT TO BE RELEASED UNLESS ENDORSED

BY SAVANNAH BANK OF NIGERIA LIMITED

LAGOS BRANCH"

11. Printed above the signature of the Master of the ship are the following words:

IN ACCEPTING THIS BILL OF LADING, any local customs or privileges to the contrary notwithstanding, the shipper, consignee and owner of the goods agree to be bound by all of its stipulation, exceptions, and conditions, whether written, printed or stamped on the front or back hereof, as fully as if they were all signed by said shipper, consignee and owner of the goods, such stipulations exceptions and conditions to apply in every contingency, whensoever and whensoever occurring, and also in the event of deviation, or of unseaworthiness of the ship at the time of loading or inception of the voyage or subsequently."

12. Dated at HOUSTON TEXAS

OCTOBER 20, 1978

Sgd.

for the Master

BY OCEAN International Corp."

There are printed at the back Terms and Conditions of which clauses 28 and 29 are relevant. The importance of these facts will appear later in this judgment.

The 1st defendant without sighting the bill of lading delivered the goods to the 2nd defendant, 2nd defendant did not pay the plaintiff for the credit before and after taking delivery, and was never an endorsee of the bill of lading.

The bank therefore issued a writ of summons in the Lagos State High Court against the 1st defendant who released the goods to the buyer, the 2nd defendant. The writ stated the reliefs claimed in various forms.

The endorsement reads:

"The plaintiffs who are Bankers claim the sum of N1,285,313.00 being the value of rice as indicated in the letter of credit No.L.8729 opened on behalf of the 2nd defendants in favour of Senrenalla Enterprise Inc. Missouri, U.S.A. The 1st defendants being the appointed clearing agent of the shipper of the rice also by custom and usage of their calling the agent of the plaintiffs. The 1st defendants released the 57,000(50 kilos) bags of rice between November 1979 and March 1980 to the 2nd defendants without the authority or consent of the shipper and/or the plaintiffs while the original bill of lading, shipping documents that were to be presented to the 1st defendants before the said rice were to be released to the 2nd defendants were still in custody and possession of the plaintiffs. The plaintiffs sustained loss of the sum of N1,285,313.00 as a result of the unauthorised release of the 57,000 (50 kilos) bags of rice to the 2nd defendant by the 1st defendants. Whereof the plaintiffs claim the said N1285,313.00 with interest at the rate of 11% per annum from the 11th day of November, 1979 until the whole amount is liquidated and costs from both 1st and 2nd defendants who have failed or refused to pay the said sum in spite of repeated demands.

ALTERNATIVELY

The Plaintiffs claim the sum of N1,285,313.00 damages and costs from the 1st defendants for their negligence in parting with the 57,900 (50 kilos) bags of rice between November 1979 and March 1980 which the 1st defendants were to keep in their custody and care until the original shipping documents in the possession and custody of the Plaintiffs are presented to the 1st defendants by the 2nd defendants for the rate mentioned in the letter of credit No. L-8729 opened by the plaintiffs on behalf of the 2nd defendants in favour of Senrenalla Enterprises Inc.

PARTICULARS OF DAMAGES

Special Damages: Amount of the Letter of Credit No. L-8729 ...N1,285,313.00 and rate of interest at the rate of 11% per annum from the 11th day of November 1979 until the whole amount is liquidated with costs."

In the amended statement of claim, the plaintiff averred as follows:

"8. The 1st defendant without sighting the original shipping documents, still in possession and custody of the plaintiffs parted with the 57,900 (50 kilos) bags of rice between November 1979 and March 1980 and thereby caused loss to the plaintiffs."

"11. The plaintiffs will rely at the trial of this action on the trade usage and custom of Banker on shipping documents to establish the liability of the defendants to the plaintiffs thereof the Plaintiffs claim as per writ."

The amended Statement of Defence of the 1st defendant pleaded that

"It was agent of the carrier, and as such "although it was under no liability to notify the consignee or any other party of the arrival of the goods, in fact, issued cargo arrival advice notes on two occasions to both the plaintiff and the 2nd Defendant and that it was in response to the advice that the 2nd Defendant came for delivery." and that the "said ship M/V "ARETI" berthed on the 9th day of January 1979 and that contrary to the allegations contained in paragraph 10 of the Statement of Claim the rice was delivered the 2nd defendant between 11th and the 27th day of January 1979."

It was further averred by the defence that as carrier's agent, the contract between it and the shipper was evidenced by the bill of lading dated 20th October 1978 and that the Bill of Lading was sent by the Shipper to the plaintiff and which the plaintiff accepted. Paragraph 15 of the defence is important. It states:

"15. The delivery of the rice consignment having been made between the 11th and 27th January 1979 the 1st defendant will contend all the trial that the writ of summons herein having been issued on the 3rd of December 1980 about 2 years after the delivery the 1st defendant by virtue of Article III Rule 6 of the Hague Rules is under no liability to the Plaintiff."

To these averment, the Plaintiff filed a Reply in which it joined issue on the averments in the amended statement of defence.

Further, the Reply pleaded that the claim against the 1st defendant is in tort thereby implying that the 1st defendant was not protected under the Hague Rules as aforesaid.

At the trial, the 2nd defendant, the buyer which took delivery of the consignment of rice without paying the plaintiff did not defend the action. Judgment was entered against it in default. It did not appeal.

The learned Judge heard evidence, the transcript of which is not included in the record of appeal before the

Court below and his court. It would appear in the court below that the parties agreed that the appeal should be argued on a bundle of papers filed in court. This appeal will therefore be considered on the basis that all the relevant evidence which the parties considered necessary for the determination of the appeal are before the court.

At the conclusion of the case, the learned Judge found in favour of the plaintiff.

The learned Judge in his judgment referred to the evidence of the defence witness and particularly that portion which reads:

"The cargo was in NPA custody when the 2nd defendant collected. It is not possible for the 2nd defendant to collect the goods without first coming to us. We must satisfy ourselves that the2nd defendant has title to the goods by the production of the original bills of lading. Exhibits 2-2B are the original bills of lading which are supposed to be shown to us."

All the consignment of rice were delivered to the 2nd defendant. There was no physical loss or damage. The Judge found that the bank financed the purchase of the goods on arrangement with the 2nd defendant, and that the latter had not repaid the bank. He found that plaintiff suffered loss arising from neglect of the 1st defendant in releasing the goods without first seeing the documents of title and as such found the 1st defendant liable.

He considered but rejected the defence that the action was statute barred by virtue of the third paragraph of Article III Rule 6 in the Carriage of Goods by Sea Act. Cap. 29 laws of the Federation of Nigeria 1958 and that the Rule was inapplicable, in the absence of any physical loss or damage to the cargo and finally entered judgment in favour of the plaintiff for N1,285,313.00 with interest at 13% from 11th November 1979 until judgment debts and costs are fully liquidated.

The court below in a majority decision allowed the appeal of the 1st defendant, set aside the judgment of the trial court, and held that the Lagos High Court had no Jurisdiction.

The bank has appealed to this Court praying that the majority decision of the court below should be set aside and the judgment of the trail court restored.

The learned trial Judge found that the Respondent was negligent in releasing the goods to the 2nd defendant, who did not present the bill of lading and who was not entitled to delivery of the goods without first presenting the endorsed bill of lading to the appellant. The bill of lading stated that the consignee to be on "Order of the Shipper", and stamped on the bill of lading are words to the effect that the cargo should not be released to any person without the endorsement of the appellant. The appellant's right to the goods is by virtue of the bill of lading, not the letter of commercial credit. It is the bill of lading which is the symbol of the goods and accordingly, his right of action derives from the contract of the goods and accordingly, his right of action derives from the contract of the carriage of the goods arising from the bill of lading.

Uwais, J.S.C. in the American International Insurance Company v. Ceekay Traders Limited (1981) 5.S.C.81 discussed the scope of the Admiralty jurisdiction, under the Administration of Justice Act 1956, which is applicable in Nigeria, Section 1(h) provides that:

"The Admiralty Jurisdiction of the High Court shall be as follows: that is to say, jurisdiction to hear and determine any of the following questions or claims:

(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use of or hire of a ship,"

Wilkin, J. in "THE ELEFITERIO (1957) P. 179 at p.183, said that the above provisions of the Act "were wide enough to cover claims whether in contract or tort arising out of any agreement relating to he carriage of goods in a ship." The action is therefore subject to the Admiralty Jurisdiction of the Court.

Article III Rule 6 Hague Rules: Mr Ajayi, S.A.N., learned Counsel for the Appellant drew attention to the fact that the 1st defendant is not sued as agent of the carrier or the ship owner. He submits the claim is not based on contract against the carrier of the goods. If it was the intention to sue on the contract, the carrier would have been sued directly. But the action is against the 1st defendant directly for the tort of negligence which also amounts to conversion. He contends that the actual wrongdoer is liable and can be sued in tort and cannot be absolved simply because he is an agent. He referred to paragraph 7 of the Reply to the amended statement of defence where it is specifically pleaded that the action against the 1st defendant is in tort. He contends that if the action is tort and not in contract, then the defence is not applicable. Therefore the said Rule is irrelevant.

Chief Sowemimo, S.A.N., in his brief for the respondent contends that the respondent, a clearing agent is entitled to the protection of the Hague Rules and the terms of the contract. In support, he cited Port Jackson Stevedoring PTY Ltd. v. Salmond & Spraggon (Australia) PTY Ltd. (1980).3 A.E.R. p. 257, and referred to the clauses 28 and 29 of Bill of Lading (Exh.B) printed at the back. These two clauses read:

"Clause 28: Carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered..."

"Clause 29: Without prejudice to any other provision here-of it is hereby expressly agreed that all servants, agents and independent contractors (including but not limited to stevedores) used or employed by the carriers for the purpose of or in connection with the performance of any of the carrier's obligations under this Bill of Lading shall in consideration of their agreeing to be so used or employed have the benefit of all right, defences, exceptions from or limitations of liability and immunities of whatsoever nature referred to or incorporated herein applicable to the carrier or to which the carrier is entitled hereunder, so that in no circumstances shall any such servant, agent or independent contractor be under any liability greater than that of the carrier hereunder...."

These two provisions are similar to those in the Port Jacksons Stevedoring case. he submits that the Respondent as agent of the carrier is entitled to the same protection as provided in the contract i.e. the bill of lading.

I am satisfied that the contention of Chief Sowemimo is well founded and that the Respondent is entitled to the protection provided in clauses 28 and 29 of the bill of lading, provided there is evidence to establish the defence.

Ademola, J.C.A., was of the view that

"Whether one brings the action under a breach of contract or in tort, the important thing is that there had been a mis-delivery in this instant case and whether appellant (i.e. the Respondent before this Court) has a defence for such mis-delivery."

He came to the decision, and rightly in my view, "that the language of the rule is wide enough to cover a mis-delivery of goods." After expressing the view, he came to the conclusion that the action was statute barred.

He said:

"I am of the view having regard to the time of loss, i.e. between 11th-27th of January 1979 as pleaded in paragraph 14 of the amended statement of defence that the issuance of the writ on the 3rd of December 1980 is clearly outside of one year during which the action is not to be brought...."

(Italics mine).

It is here that I disagree with him. he relied on the pleading in paragraph 14 of the amended statement of defence. Is that right?

It seems to me that the learned justice overlooked the fact that it was never admitted that delivery took place between 11th and 27th January, 1979, in that the plaintiff joined issue in its reply to the Amended Statement of Defence.

The plaintiff itself pleaded in paragraph 8 of the Amended Statement of Claim that the consignment was delivered between November 1979 and March 1980. The learned trial Judge did not make any finding on the issue. There is no evidence on record from which the learned justice of appeal could have reached the decision on the issue. It is not right to make any finding of a disputed fact in the absence of evidence in support. Although it is common ground that the cargo was delivered to the 2nd defendant, there is no evidence of the date before the appeal court. And since different dates of delivery were pleaded and not supported by evidence, the defence must fail.

The question therefore is whether the trial court has jurisdiction to determine the action. I have already given reasons why I hold it is an admiralty cause.

Mr Ajayi contends in the appellant's brief:

"Since the 1979 Constitution of the Federation came into operation on 1st day of October 1979, the States High Court have concurrent jurisdiction with the Federal High Court in admiralty cases. This is because States High Court have unlimited jurisdiction original and appellate to hear any civil proceedings by virtue of section 236. Section 230(1) confers jurisdiction in such matters as the National Assembly is empowered to make laws and in such matters connected with or pertaining to the revenue of the Government of the Federation and such other matters which is within its legislative competence and specifically confers jurisdiction on it."

He elaborated his argument by referring to the decision in American International Insurance Company v. Ceekay Traders Limited (1981)5 S.C.81 which decided that the combined effect of sections 7(1)(d), 8(1)24 and 63(4) of the Federal High Court Act is clearly to oust the jurisdiction of the States High Court in admiralty cases. He submits that the decision is right in so far as such action was commenced before the 1st October, 1979 when the 1979 Constitution came into operation. Any admiralty case he argues, could now be filed either in a State High Court or the Federal High Court. Learned Counsel referred to section 8(1) of the Federal Revenue Act 1973 which oust the jurisdiction of States High Court in all such matters are as conferred in the Federal High Court by section 7(1). The combined effect of the two sections, 7 and 8, was to give exclusive jurisdiction in admiralty matters to the Federal High Courts before 1st October 1979 but not after that day.

Mr Ajayi, learned Counsel further submitted that the Lagos State High Court has concurrent jurisdiction, by virtue of its unlimited jurisdiction under section 236(1) of the 1979 Constitution with the Federal High Court, whose jurisdiction is presently defined in section 230. That section 8(1) of the Federal High Court Act 1973, which ousted the jurisdiction of the State High Court in all matters conferred on the Federal High Court in section 7(1)(b) of the 1973 Act, is no longer effective because it is inconsistent with the provision of section 236(1) of the 1979 Constitution.

He further submitted that the Respondent was not entitled to the protection of the defence under Article III Rule 6 of the Hague Rules because the 1st defendant was not sued as a carrier or agent of the carrier, but in tort of negligence committed by it.

In reply, Chief Sowemimo submits that the whole of Decree No. 13 of 1973 including its section 8, which is the 'ouster provision' is expressly preserved by s.230(2) of the 1979 Constitution and that the Federal High Court still retains its exclusive jurisdiction in admiralty matters and quoted extensively various passages in Broniks Motors Ltd. v. Wema Bank (1893)6 S.C. 158. He referred particularly to the judgments of Irikefe, (then J.S.C.) at p. 161.

It is common ground that if the action was instituted before the 1st October 1979 when the present Constitution of the Federal Republic came into force, and I have found it to be an Admiralty cause, then, the Federal High Court would have exclusive jurisdiction by virtue of the combined effect of sections 7(1)(b)(iii), 8(1),24 and 63(4) of the Federal High Court Act, 1973. That was the decision of this Court in American International Insurance Company v. Ceekay Traders Limited (1981)5 S.C.81. The question now is whether the 1979 constitution has altered that exclusive jurisdiction. The 1979 constitution now defines the jurisdiction of the various courts for the Federation. The various courts now existing are specifically named with their jurisdiction in the Constitution, including (a) the Supreme Court of Nigeria whose jurisdiction is defined in section 212, (b) the Federal Court of Appeal (section 219), (c) the Federal High Court (section 230) and (d) a State High Court (Section 236). The Federal High Court before 1st October, 1979 was known as the Federal Revenue Court and was established by Decree of the Federal Military Government in 1973.

As I have earlier stated the combined effect of the sections 7(1)(d), 8(1),24 and 63(4) of the 1973 Decree was to oust the jurisdiction of the State High Courts in Admiralty matters. Now, section 274 of the 1979 Constitution provides that an existing law shall have effect with which modifications as may be necessary to bring it into conformity with the provisions of the Constitution and shall be deemed to be an Act of the National Assembly, that is a law with respect to any matter which the National Assembly is empowered by the Constitution to make laws. The National Assembly has exclusive legislative power in Maritime and Shipping matters (see Item 35 in Part 1 of the Exclusive Legislative List.) Section 230(1) and (2) reads:-

"230 (1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have jurisdiction.

(a) in such matters connected with or pertaining to be revenue of the Government of the Federation as may be prescribed by the National Assembly; and

(b) in such other matters as may be prescribed as respects which the National Assembly has power to make laws.

(2)

"236 (1)

Notwithstanding subsection (1) of this section where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which subsection (1) of this section relates, such court shall as from the date when this section comes into force be restyled "Federal High Court", and shall continue to have all the powers and exercise the jurisdiction conferred upon it by any law.

Subject to the provision of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person."

The watershed of the case law on the jurisdiction of the State and Federal High Courts under the present Constitution is of the Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (1983)6 S.C. 158.

"the unanimous decision of this Court that the jurisdiction conferred on the Federal High Court by section 230 is limited to

(1) Such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed in section 230(1)(a);

(2) Such matters than those specified in (1) above as may be prescribed; section 230(1)(b), and

(3) Such jurisdiction as was vested in the former Federal Revenue Court established under the provisions of the Federal Revenue Court Act, section 230(2)."

It went to emphasise that

"The jurisdiction conferred on the Federal High Court-in categories (1) and (2) above is not self executory. There must be in existence an Act of the National Assembly authorising the exercise of such jurisdiction on a matter within the legislative competence of the National Assembly."

He then added-

"Finally, I may point out that the only jurisdiction which the Constitution specifically conferred on the Federal High Court is as follows:-

(1) Under section 42 the court has concurrent jurisdiction with the State High Courts to grant redress for an infringement of a fundamental right; and

(2) Under section 237 it has a temporary jurisdiction pending the Constitutional establishment of Abuja as the Federal Capital Territory to determine any question whether any person has been validly elected to the office of President or whether the term of the office of President has ceased."

Speaking of the jurisdiction of the State High Court at p.195, Idigbe, J.S.C. stated his view as follows-

"...a State High Court has trial and appellate jurisdiction in respect of issues which are, by law (i.e. the Constitution and the State High Court Law) ordinarily within its competence although arising under State Laws or Federal Laws: i.e. Laws relating to matters within the legislative competence of the National Assembly in the exclusive and concurrent Legislative Lists) unless specifically precluded by the Constitution or any other lawful enactment from exercising such jurisdiction. Two examples of such specific preclusion under the Constitution aforesaid are to be found in section 237(2)(a) and 212(1). In passing, attention may be drawn to the language of section 8 of the Federal High Court Act 1973, which, by implication is intended to 'kill' or remove the jurisdiction which until its coming into force existed in the State High Courts in respect arising not only under the state but also Federal laws; that section reads-

"8 (1) In so far as jurisdiction is conferred upon the Federal High Court in respect of the causes or matters mentioned in the foregoing provisions of this apart the High Court or any other court of a State shall, to the extent that jurisdiction is so conferred upon the Federal High Court, CEASE to have jurisdiction in relation to such causes or matters."

The question now is: Whether section 8(1) of the 1973 Federal High Court Act still retains the potency of a Decree which until the 1979 Constitution has superior force than the then Constitution ? Is it valid existing provision of the Act as defined in section 274(1)(a) having regard to the unlimited jurisdiction conferred on State High Courts by section 236 of the Constitution. Put differently, can an Act of the National Assembly override a specific provision of the Constitution? Section 1(3) of the Constitution says in such a case the Constitution shall prevail over the inconsistent provision of the Act or Law.

Idigbe J.S.C., went further say at pages 196 to 198-

"It is to be remembered that although the Supplemental provisions of section 250 of the 1979 Constitution did not exist in the 1963 Constitution and (as amended by the Military Regime) current at the time of the promulgation of the Federal Revenue Court Decree (now Federal High Court Act), both section 44(1) and (2) of the Interpretation Act Cap 89 of Vol, III of the 1958 edition of the Laws of Nigeria (as preserved by section 28 of the Interpretation Act 1964 and designated Law(Miscellaneous Provisions) Act 1964 as well as section 3 of Regional Courts (Federal Jurisdiction) Act Cap 177 of Vol. V of the 1958 edition of the Laws of Nigeria, were then in existence; and so, they conferred adequate jurisdiction (NOT under the then existing Constitution, as does the 1979 Constitution but by enactments de hors the 1963 Constitution) on State High Courts on matters and issues of law arising not only from State laws but also Federal Laws (and this included matters referred to in section 8 of Act No. 13 of 1973 as "mentioned in the foregoing provisions)."

The above statement provides the simple answer to Chief Sowemimo's argument that section 8(1) of the 1973 Act is preserved specifically by section 230(2) of the 1979 Constitution. His submission therefore cannot be correct.

Eso, J.S.C. at p.252 also expressed a similar view that-

"Section 7 of the Federal High Court Act 1973 No. 13 is saved by subsection (2) of section 230. It confers the jurisdiction of the defunct Federal Revenue Court on the newly created Federal High Court."

I share the same view, that it is section 7 (and not section 8(1) which confers the jurisdiction. Section 8(1) therefore must stand or fall in its own right. It cannot find support under section 230(2) for its existence under the Constitution.

I agree with the submission of Mr Ajayi that section 8(1) of the Federal Revenue Act 1973, which purports to oust the unlimited jurisdiction of the State High Court is in conflict with the jurisdiction conferred on the State High Court under section 236(1) and therefore to that extent void and of no effect.

Finally, I hold that by virtue of section 230(2) of the Constitution and section 7(1) of the Federal High Court Act 1973, and the unlimited jurisdiction under section 236 of the said Constitution both the Federal and the State High Courts have concurrent jurisdiction in admiralty causes.

I hold further, that Section 8 (1) of the Federal Revenue Court Act 1973, is inconsistent with section 236 of the Constitution and is therefore void to the extent of the inconsistency.

For the foregoing reasons the appeal succeeds and I allow it, I order that the majority judgment of the Court below together with the order for costs be set aside. The judgment of Johnson J.(as he then was) of the Lagos State High Court is hereby restore, save the interests on the judgment debt shall be at 11% as claimed in the writ and not at 13% as the learned Judge ordered. The appellant is entitled to the costs of this appeal which I fix at N250.00 also the costs in the court below which I fix at N300.00.

Bello, J.S.C.-I have read in draft the judgment just delivered by my learned brother, Coker J.S.C I concur that the appeal should be allowed, the decision of the Court of Appeal be set aside and the judgment of the High Court of Lagos State be restored. I have also read the judgment of my learned brother, Oputa J.S.C. and I adopt as mine his reasons as to why the provisions of the limitation period in Article III Rule 6 of the Schedule to the Carriage of Goods by Sea Act should not avail the Respondents in this appeal.

I would only add a few words on the issue of jurisdiction. The question on the issue is whether having regard to the provisions of the Constitution of the Federal Republic of Nigeria 1979, hereinafter referred to as the Constitution, the Federal High Court has, to the exclusion of the State High Courts, jurisdiction to entertain a claim arising out of the Admiralty jurisdiction.

In the American International Insurance Co. v Ceekay Traders Ltd. (1981) 5 SC.81 this Court held that by virtue of the provisions of sections 7 (1) (d) and 8 (1) of the Federal High Court Act 1973, hereinafter referred to as the Act, the Federal High Court has exclusive jurisdiction to entertain a claim founded on marine insurance which is a matter within the Admiralty jurisdiction. The claim in that case was filed in the then Federal Revenue Court, now the Federal High Court, before the Constitution came into force on 1st October 1979. Consequently, the Court did not consider the provisions of the Constitution relating to the issue of jurisdiction since the Constitution was not in force at the material time. I think this is the first time the Constitutionality of Section 8(1) of the Act has been questioned in this Court.

From the outset, it may be pointed out that the provisions of Section 230(2) of the Constitution specifically confers on the Federal High Court jurisdiction to entertain matters of Admiralty jurisdiction by incorporating the provisions of Section 7 (1) (d) therein. Since the claim in the case on appeal relates in a dispute between the holder of a bill of lading and a stevedore in respect of the loss of a cargo carried by ship, the claim is a cause within the Admiralty jurisdiction: see The New Sealing Shipping Co. Ltd. v. A. M. Satterthwaite & Co. Ltd. (1974)1 All E.B. 1015 and Part Jackson Stevedoring PTY Ltd. v. Salmond & Spraggon (Australia) PTY Ltd. (1980) 3 All E.R. 257. Accordingly, the Federal High Court has jurisdiction to entertain the claim in the case of appeal.

In parenthesis, it may be noted that the cases of Akinsanya v. U.B.A. (1986) 4 N.W.L.R.273 and Nasaralai v. Arab Bank (1986) 4 N.W.L.R. 409 which were concerned with disputes between bankers and their customers are distinguishable from the case on appeal which is concerned with a dispute between the holder of a bill of lading and the agent of the carrier.

The question may now be asked whether the Admiralty jurisdiction of the Federal High Court is still exclusive of

the State High Courts having regard to the generality of the provisions of Section 236 of the Constitution, which states:

"236 (1)

(2)

Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction."

In other words, is section 8 (1) of the Act upon which Ceekay case based the exclusiveness of the jurisdiction consistent with the provisions of Section 236 of the Constitution? The provisions of Section 8 (1) may be set out:

"8 (1) In so far as jurisdiction is conferred upon the Federal High Court in respect of the causes or matters mentioned in the foregoing provisions of this Part the High Court or any other court of a State shall, to the extent that jurisdiction is so conferred upon the Federal Revenue Court, cease to have jurisdiction in relation to such causes or matters."

It is pertinent to point out that the suit in the case on appeal was filed in the High Court of Lagos State in 1980 long before the Constitution (Suspension and Modification) Decree 1984 came into force. The provisions of the Constitution as they were in 1980 must be considered for the purpose of this appeal and not as they are after the Decree had come into force.

In Bronik Motors Ltd. v. Wema Bank (1983) 6 S.C. 158 this Court fully considered the provisions of Section 236 of the Constitution and its other provisions relating to the jurisdictions of the Federal High Court and of the State High Courts and concluded that the State High Courts are courts of unlimited jurisdiction to hear and determine any cause or matter unless specifically precluded by the Constitution or any other lawful enactment from exercising such jurisdiction

It may be observed that there is no express provision of the Constitution which precludes state High Courts from exercising Admiralty jurisdiction. Unlike sections 213 and 219 of the Constitution which specifically prescribe that the respective jurisdiction of the Supreme Court and of the Court of Appeal shall be "to the exclusion of any other court of law in Nigeria", Section 230 which prescribes the jurisdiction of the Federal High Court makes no provision for exclusion clause. Since the Constitution does not specifically provide that the Admiralty jurisdiction of the Federal High Court is exclusive. It remains to consider whether Section 230 (2) of the Constitution, which incorporates the provisions of Section 7 (1) of the Act in the Constitution as I have earlier stated, is also capable of being construed as having incorporated the provisions of Section 8 (1) of the Act in the Constitution and thereby rendering the jurisdiction exclusive. For case of reference, Section 230 (2) may be reproduced:

"(2) Notwithstanding subsection (1) of this section where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which subsection (1) of this section relates, such court shall as from the date which this section comes into force be restyled "Federal High Court", and shall continue to have all the powers and exercise the jurisdiction conferred upon it by any law."

Before the date when the Constitution came into force the Federal Revenue Court was exercising Admiralty jurisdiction by virtue of section 7 (1) of the Act. From its ordinary and plain meaning, section 230 (2) simply confers on the Federal High Court the same jurisdiction from the date when the Constitution came into force. It does not preclude the State High Courts from exercising the same jurisdiction.

It may be emphasized that section 8 (1) of the Act did not confer any jurisdiction or power on the Federal Revenue Court. The jurisdiction of the court was conferred by section 7 of the Act. Section 8 (1) did no more than to deprive the State High Courts of the jurisdiction conferred on the Federal Revenue Court which the State High Courts had been exercising before the Act came into force. In my view, since section 8 (1) did not confer any power or jurisdiction on the Federal Revenue Court its provisions cannot be incorporated in section 230 (2) of the Constitution which only preserves and maintains "all the powers and...jurisdiction" under the Act. Section 8 (1) must therefore stand or fall on its own pillars. Section 230 (2) cannot be its column.

Now, the Federal Revenue Court Act 1973 is an existing law within the purview of section 274 of the Constitution and shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of the Constitution. Section 7 of the Constitution provides:

"1 (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void."

To revert to section 236 of the Constitution, I may reiterate that subject to the provisions of the Constitution the section confers unlimited jurisdiction on the State High Courts. On the other hand, section 8 (1) of the Act curtails and limits that jurisdiction. Section 8 (1) is clearly inconsistent with section 236 and must be declared void. I so declare it.

Accordingly, I hold that the Federal High Court the State High Courts have concurrent jurisdiction on Admiralty matters. I adopt the orders made by my learned brother, Coker J.S.C.

A. G. Karibi-Whyte, J.S.C. I have had the privilege of reading the judgment of my learned brother D. O. Coker, J.S.C. in this appeal. I have found it difficult to agree with both the reasoning and conclusions. Our differences lie in the fundamental difference of approach we have adopted in the interpretation of the all important expression of "unlimited jurisdiction" in section 236 (1) of the Constitution 1979. I have accordingly decided to write my own judgment in this appeal.

The appeal before us is against the judgment of the Court of Appeal, Adenekan Ademola, Kutigi, JJCA, Nnaemeka-Agu JCA dissenting, allowing the appeal of the Plaintiffs against the judgment of the High Court dismissing its claim against the defendants, the appellants in this Court. The question of the jurisdiction of the trial court which has featured so prominently before us was raised for the first time in the Courts of Appeal. The issue of jurisdiction was raised obliquely as a defence by the reference to the application or not of the Hague Rules in respect of carriage of Goods by Sea. The action before the trial court was for a claim by the Appellants, Savannah Bank of Nigeria Limited against the Respondents, Pan Atlantic Shipping and Transport Agencies Ltd., and Nicaner Food Company Ltd., for the sum of N1,285,313 with interest endorsed on the writ of summons as follows:-

WRIT OF SUMMONS

"The Plaintiffs who are Bankers claim the sum of N1,285,313.00 being the value of rice as indicated in the Letter of Credit No. L. 8729 opened on behalf of the 2nd Defendants in favour of Senrenella Enterprise Inc. Missouri, U.S.A. The 1st Defendants being the appointed Clearing agent of the shipper of the rice also by custom and usage of their calling the agent of the plaintiffs. The 1st Defendants released the 57,900 (50 kilos) bags of rice between November 1979 and March 1980 to the 2nd Defendants without the authority or consent of the shipper and/or the Plaintiffs, while the original Bill of Lading, shipping documents that were to be presented to the 1st Defendants before the claim were to be released to the 2nd Defendants were still in custody and possession of the Plaintiffs.

The Plaintiffs sustained loss of the sum N1,285,313.00 as a result of the unauthorised release of the 57,900 (50 Kilos) bags of rice to the 2nd Defendant by the 1st Defendants. Whereof the Plaintiffs claim the said N1,285,313.00 with interest at the rate of 11% per annum from the 11th day of November, 1979 until the whole amount is liquidated and costs both 1st and 2nd Defendants who have failed or refused to pay the said sum in spite of repeated demands.

Alternatively:

The Plaintiffs claim the sum of N1,285,313.00 damages and costs from the 1st Defendants for their negligence in parting with the 57,900 (50 Kilos) bags of rice between November 1979 and March 1980, which the 1st Defendants were to keep in their custody and case until the original shipping documents in the possession and custody of the Plaintiffs are presented to the 1st Defendants by the 2nd Defendants for the rice mentioned in the letter of Credit No. L-8729 opened by the Plaintiffs on behalf of the 2nd Defendant in favour of Senrenella Enterprises Inc. Missouri, U.S.A.

PARTICULARS OF DAMAGES

Special Damages: Amount of the Letter of Credit No. L-8729, N1,285,313.00 and Rate of Interest at the rate of 11% per annum from the 11th day of November 1979 until the whole amount is liquidated with costs."

For a better understanding of the subject matter of the action, and consequently the jurisdiction of the court, it is pertinent to reproduce parts of the pleadings which are relevant to the determination of the claim before the court. Paragraphs 1-11 of the amended statement of claim read as follows:-

AMENDED STATEMENT OF CLAIM

"1. The Plaintiffs are bankers having their Branch Office at 138, Broad Street, and their Administrative Office at 19, Gbajumo Street, Lagos.

2. The 1st defendants are shipping agents having its office at 81/84 Kofo Abayomi Avenue, Apapa, Lagos.

3. Sometime in 1978 the 2nd Defendants who were customers of the Plaintiffs instructed the Plaintiffs to open an irrevocable letter of credit to the tune of One Million Two Hundred and Eighty-five Thousand, Three Hundred and Thirteen Naira (N1,285,313.00) in favour of Senrenella Enterprises Inc. Missouri, U.S.A.

4. The Plaintiff opened the said letter of credit No. L-8729 on behalf of Nicanner Food Company in favour of a Company in Europe before the irrevocable Letter of Credit was amended in favour of Senrella Enterprises Inc., Missouri, U.S.A.

5. The said Senrenella Enterprises Inc. Missouri, U.S.A shipped the consignment of rice, and all the relevant original Bill of Lading and papers in respect of the shipment of the consignment were forwarded to the Plaintiffs and were in possession and custody of the Plaintiffs.

6. The Plaintiffs on receipt of the said shipping documents informed the 2nd Defendants that the documents in respect of the consignment of rice have been received by the Plaintiffs, and that the 2nd Defendants should call at the Plaintiffs' Office to collect the original papers that were to be produced to the 1st defendants before the said 2nd Defendants could be allowed to take collection of the consignment.

7. The Plaintiffs did not get any response from the said 2nd defendants, and the Plaintiffs had to contact the Nigerian Ports Authority to find out the date of arrival of the ship, and also who are the clearing agents of the shipper and/or carriers of the consignments in Nigeria. The Nigeria Ports Authority informed the Plaintiffs that the 1st defendants are the agent of the shippers and/or carriers in Nigeria.

8. The 1st defendants without sighting the original shipping documents still in possession and custody of the Plaintiffs parted with the 57,900 (50 kilos) bags of rice between November, 1979 and March, 1980 and thereby caused loss to the Plaintiffs.

9. The Plaintiffs contacted the defendants and the 1st defendants admitted liability to the Plaintiffs but no payment on the admission of the 1st defendants liability has been made to the Plaintiffs.

10. The Plaintiffs wrote several letters to the Defendants but the Defendants have not paid the Plaintiffs in spite of repeated demands.

11. The Plaintiffs will rely at the trial of this action on the trade usage and custom of banker on shipping documents, and also on all the documents and Nigeria Ports Authority documents to establish the liability of the defendants to the Plaintiffs. Whereof the Plaintiffs claim as per the Writ of Summons."

The 1st defendant/respondent filed to a statement of defence, the relevant paragraphs 4, 5, 6, 10, 12, 13, 14 and 15 of which read as follows:-

"4. The 1st Defendant avers that it was at all material time an agent of Lignes Contraficaines whose registered office is at 4100 Dinsburg 13, West Germany, and who were the carriers of the alleged Rice consignment on the ship known at M/V "ARETI."

5. The 1st Defendant denies that it was the agent of the shipper, Messrs Senrenalla Enterprises Inc. Missouri, U.S.A. as alleged in the Writ of summons and/or that it was privy to the contract of transaction (if any) between the plaintiff and the 2nd Defendants in the premises, the 1st Defendant will contend that there was no privy of contract between it and the Plaintiff.

6. The 1st Defendant denies that the plaintiff had suffered the alleged or any damage or that the damage suffered by the plaintiff was occasioned by the alleged or any negligence or breach of duty on the part of the defendant as alleged or at all.

That 1st Defendant will further contend at the trial that the said ship M/V "ARETI" berthed on the 9th day of January, 1979 and that contrary to the allegation contained in paragraph 10 of the Statement of Claim the Rice was delivered to the 2nd Defendant between the 11th and the 27th of January, 1979.

10. The 1st Defendant avers that the 2nd Defendants through its Managing Director-Alhaja Amudalat Ashiru produced the original Bill of Lading and other customs papers before the Rice was delivered to her and the said Alhaja Ashiru took delivery of the same and paid the necessary change to the 1st Defendant will rely on the receipts issued to the 2nd defendant.

12. The 1st Defendant further avers that the acceptance of the said Bill of Lading by the plaintiff is an assent to the terms and conditions contained therein and that it was an express term of the contract that the carrier or its agents the 1st Defendant, shall not be liable for any loss or damage however caused during loading or after the discharge of the ship.

13. The delivery of the Rice consignment having been made between the 11th and 27th of January, 1979 the 1st Defendant will contend at the trial that the writ of summons herein having been issued on the 3rd of December, 1980 about 2 years after the delivery, the 1st Defendant by virtue of Article III Rule 6 of the Hague Rules is under no liability to the plaintiff.

14. If, which is denied, the original Bills of Lading are now, in the custody of the plaintiff then the 1st Defendant will contend at the trial that the 2nd Defendant by colluding with the plaintiff brought the said Bill of Lading for the purpose of delivery by the 1st Defendant and clearance by the customs and later by some unknown means, returned the Bills of Lading to the plaintiff. Or in the alternative the said Bill of Lading were retrieved from the files of the 1st Defendant company when the official of the Plaintiff bank came to ransack its premises about 11/2 years after delivery had been made."

15. The plaintiff filed a reply to the statement of defence. It will be observed as I have stated that the plaintiff did not base their claim on an irrevocable letter of Credit No. L-8729 but on the bill of lading and wrongful release of the goods by the 1st to the 2nd defendants. The bill of lading and other shipping documents were mentioned as documents which were in possession of the plaintiffs and with which the goods ought to have been released if so indorsed by the plaintiffs.

The 1st defendant relied on the bill of lading as its defence. The main allegation against the 1st defendant is that, contrary to the agreement between the plaintiff bank and their customer the 2nd defendants, they (1st defendant) without sighting the shipping documents which were in the possession of the plaintiffs as security for the credit delivered the goods to the 2nd defendants who has not paid the plaintiffs for the said documents as they were required to do under the credit agreement. The main allegation against the 2nd Defendants is that contrary to the terms of the letter of credit Exh. 1, they without paying for or otherwise negotiating the credit with the plaintiffs and thereby acquiring the shipping documents that could give them title to the goods, took delivery of the goods; that the plaintiffs thereby incurred a loss of N1,285,313.00 being the value of the credit. The 2nd defendants did not enter any appearance and did not defend the action. So, judgment was entered against him. Thereafter the plaintiffs continued the action against the 1st defendants alone.

The Plaintiff's filed a reply to the statement of defence. The 2nd defendant even though served did not enter appearance and judgment was entered against it in default.

The facts of the case were that a consignment of rice was duly shipped to this country by the strength of a letter of credit No. L-8729 opened by the Plaintiff/Appellant on behalf of the 2nd Defendants in favour of Senrenella Enterprises Inc. Missouri, U.S.A. 1st Defendants were the agents of the shipper of the rice and of the Plaintiffs. Upon receipt of the Bill of Lading and other shipping documents Plaintiff/Appellants advised the 2nd Respondents on whose behalf the letter of credit No. L-8729 was opened for the purchase of the consignment of 57,900 (50 kilos) bags of rice to come and pay for the consignment and to collect the bill of lading and other documents in respect of the goods, to enable delivery of the consignment. The 2nd Defendant/Respondent failed to do so. Subsequently, Plaintiff/Appellant discovered that the consignment of rice had duly arrived and had been cleared from the ship and the Nigerian Ports Authority customs sheds without their knowledge. They also discovered that 1st Defendants as Agents of the carriers had released the whole consignment of rice to the 2nd Defendants/Respondents without sighting or having been presented with the original Bills of Lading and other shipping documents as required by the terms of the bill of lading as essential for the release of the consignment. These documents were at all times material in the possession of the Plaintiff/Appellants. Plaintiffs/Appellants had not been paid by 2nd Defendants for the consignment as per the Letter of Credit.

The 1st defendant denied in paragraph 5 of the amended statement of defence that it was the agent of the shipper or that it was in privity in the contract between Plaintiffs/Appellants and the 2nd Defendants. It went further to plead as follows:-

"7. That 1st Defendant will further contend at the trial that the said ship M/V "ARETI" berthed on the 9th day of January, 1979 and that contrary to the allegation contained in paragraph 10 of the Statement of Claim the Rice was delivered to the 2nd Defendant between the 11th and 27th of January, 1979.

The 1st Defendant avers that the 2nd Defendants through its Managing Director-Alhaja Amudalat Ashiru produced the original Bill of Lading and other customs papers before the Rice was delivered to her and the said Alhaja Ashiru took delivery of the same and paid the necessary change to the 1st defendant will rely on the receipts issued to the 2nd defendant.

Paragraph 13 of the statement of claim is particularly relevant to what shall be said hereafter. In denying liability and negligence 1st defendant pleaded in paragraph 14 of the amended statement of defence as follows:-

"If which is denied, the original Bills of Lading are now, in the custody of the plaintiff then the 1st Defendant will contend at the trial that the 2nd Defendant by colluding with the plaintiff brought the said Bill of Lading for the purpose of delivery by the 1st Defendant and clearance by the customs and later by some unknown means, returned the Bills of Lading to the plaintiff. Or in the alternative the said Bill of Lading were retrieved from the files of the 1st Defendant company when the official of the plaintiff bank came to ransack its premises about 11/2 years after delivery had been made."

The 1st Defendant was thus contending that it sighted the Bill of Lading and original documents before releasing the consignment to the 2nd Defendant. This was the evidence at the trial of witness for the 1st Defendant. The learned Judge found as a fact that the Plaintiff financed the purchase of the consignment of rice on arrangement with the 2nd Defendant, and that Plaintiff had not been paid. He also found that since it was accepted that the consignment of goods was collected, by the consignee aided by the agent of the carrier; it was not a case of loss or damage to the goods. Accordingly Plaintiff's right of action was not extinguished and the claim was not statute-barred by virtue of the Hague Rules.

As I have already indicated 1st defendant pleaded that the action having not been commenced within the period prescribed in article 3 rule 6 of the Carriage of Goods by Sea Act Cap. 29 Laws of the Federation 1958, the claim was statute-barred. This defence was rejected.

The learned judge held that the 1st defendant was liable for the sum claimed with interest at 13% as from 11th November, 1979 until the judgment debt and costs were fully liquidated.

1st Defendant appealed to the Court of Appeal against the judgment. Ground 3 of the grounds of appeal to the court below, reproduced below is one of the grounds of appeal to this Court:

"The learned trial Judge misdirected himself in law in taking evidence and delivering judgment in this suit when he had no jurisdiction as the subject matter of the suit falls within the Admiralty jurisdiction as such the entire proceedings are a nullity.

Particulars of Misdirection

(a) Only the Federal High Court has jurisdiction in Admiralty matters.

(b) The subject matter relates to claim arising out of agreement relating to the carriage of the goods in dispute which were transported in a ship."

By a majority decision, the Court of Appeal then came to the conclusion that the subject matter of the claim fell within the Admiralty jurisdiction, and hence within the exclusive jurisdiction of the Federal High Court. Accordingly the Lagos State High Court had no jurisdiction to hear and determine the matter.

The dissenting opinion held that the subject matter of the claim did not fall within the Admiralty jurisdiction, but related to banking transactions under section 7 (1) (b) (iii) of the Federal High Court Act 1973 and accordingly within the jurisdiction of the State High Court. Plaintiff has appealed to this Court formulating his grounds of appeal around the dissenting judgment of Nnaemeka-Agu J.C.A.

The grounds of appeal are as follows:-

"i. The Court of Appeal (apart from P. Nnaemeka-Agu J.C.A.) erred in law to hold that the Plaintiff/Appellant's action against the 1st Defendant was grounded upon the Bill of Lading Exhibit 2-2B when it was so evident from the Plaintiff/Appellant's claim that the foundation of the action is the Letter of Credit No. L-8729 and not the Bill of Lading.

ii. The Court of Appeal (apart from P. Nanemeka-Agu J.C.A.) erred in law to have based the Plaintiff/Appellant's claim on the irrevocable Letter of Credit No. L-8929 and wrongful release of the goods by the 1st Defendant to the 2nd Defendants, while the Bill of Lading and other shipping documents were mentioned only as documents which were in possession of the plaintiffs and with which the goods ought to have been released if so endorsed by the Plaintiff.

iii. The Court of Appeal (apart from P. Nnaemeka-Agu J.C.A.) erred in law when it failed to consider the Plaintiff's claim as a banker to the 2nd Defendant who opened an irrevocable Letter of Credit on behalf of the 2nd Defendant to cover the consignment of rice released by the 1st Defendant to the 2nd Defendant when it is settled that its international commercial transactions credits are by their nature separate and distinct contracts from the sale or carriage or other contracts that may emerge from such transactions, and in this case, the Plaintiff/Appellants were concerned with the manner the 2nd Defendants have behaved in breach of its agreement with the Plaintiffs and not with the carriage of goods as defined in the case of United City Merchants (Investment) Limited, and Another v. Royal Bank of Canada & Ors. 1983 A.C. 168 pages 182-184, the President of India v. Metcalf Shipping C. Ltd. 1969 2 Q. B. 123.

iv. The Court of Appeal (apart form P. Nnaemeka-Agu J.C.A.) erred in law to hold that the definitions under the rules relating to Bills of Lading apply to the instant case; whereas the definitions relied upon by the 1st Defendant's Counsel cover the meaning and application of Article 3 Rule 6 of the rules relating to Bills of Lading when it was evident that the Plaintiffs came into possession of the Bill of Lading on the basis of commercial Credit between the Plaintiff and the 2nd Defendants, and the said Bill of Lading ought to be presented to the 1st Defendant before the Rice Consignments were released to the 2nd Defendant."

An examination of the grounds of appeal to this Court discloses that appellant relied entirely on the reasons in the dissenting judgment in that court. It is pertinent to observe that of the three grounds of appeal, filed and argued in that court, the first related to a finding of negligence against the 1st defendant, the second was a procedural complaint for delivering another judgment in the same amount against the 1st defendant when both 1st and 2nd defendants were not sued jointly and severally but in the alternative; the 2nd defendant having been held liable in the same amount. The third and additional ground was the ground on the want of jurisdiction in the Lagos State High Court.

It is relevant to point out that the Court of Appeal in allowing the appeal against the judgment of the High Court, found that 1st defendant was not the agent of the 2nd defendant. It was also found that 2nd defendant was the consignee of the goods, in the bill of lading. The court of Appeal found that the action of the Plaintiff did not lie in negligence, as the learned judge held, but it was an action for breach of contract and damages claimed for the loss of goods due to misdelivery. The Court of Appeal held that the action founded on the Bill of Lading, Exhibit 2-2B was without doubt a contract for the Carriage of Goods by Sea, S. 4 of the Carriage of Goods by Sea Act Cap. 29 therefore applicable. Consequently, the Court of Appeal construing the provisions of Articles 3, rules 6, 8 of the Carriage of Goods by Sea Act and the meaning of words "loss" or "damage" therein held that delivery to the wrong person or without the Bill of Lading by a carrier, is a "loss" under the Rules. The case of Szee Hai Tong Bank Ltd. v. Rambler Cycle Co. Ltd. (1959) 3 All E. R., 182-184 was relied upon. It was held that the word loss or damage in the cases included a delivery to the wrong person-Anglo-Saxon Petroleum Co. Ltd. v. Adamostos Shipping Company (1952) 2 QBB, 233, 253. The Court of Appeal held that the Plaintiff suffered loss because the goods should have been delivered to him being the holder of the Bill of Lading. Accordingly, and since the Carriage of Goods by Sea Act applied, Article 3, Rule 6 of the Hague Rules were applicable. The Court of Appeal therefore held that the loss of the goods having been stated to be between the 11th-27th January, 1979, the writ issued on the 3rd December, 1980 was clearly outside the period of one year within which claim must be brought-Corpania Colombiano Sequros v. Pacific Steam Navigation Company (1965) 2 QBD, 101, 125, 126. The Claim was therefore statute-barred.

The Court of Appeal considered the issue of the jurisdiction of the Court. After referring to paragraphs 5,6,7,8 and 11 of the statement of claim and paragraph 14 of the amended statement of defence which relied on Article 3 Rule 6 of the Carriage of Goods by Sea Act, Cap. 29, for non-liability, it was held that the claim was based on a contract for the carriage of goods into Nigeria by sea, and comes within Section 1 (1) of Administration of Justice Act 1956 of England. The Court of Appeal rejected the submission based upon Jammal Steel Structures Ltd. v. A.C.B. Ltd. (1973)All N.L.R. (Part II) 208 that the State High Courts had concurrent jurisdiction with the Federal High Court in Admiralty matters. The Court of Appeal relied on the authority of American International Insurance Company v. Ceekay Traders (1981) 5 SC 81 for holding that by virtue of S. 7(1)(d) of the Federal High Court Act 1973 exclusive jurisdiction in Admiralty matters was vested in the Federal High Court. The reasons relied upon by the majority of the Court of Appeal in setting aside the judgment of the High Court summarily stated were that

(a) The subject matter of the claim being Admiralty, the State High Court lacked jurisdiction to hear and determine the claim.

(b) The action was founded on a claim under the Carriage of Goods by Sea Act, Cap. 29, and governed by the Hague Rules. The claim is for loss or damage of goods, which must by Article 3 Rule 6 of the Hague Rules be brought within twelve months. This claim was brought after the prescribed period and was therefore statute-barred.

The dissenting judgment took a different view of the claim in the writ of summons. He was convinced that the foundation of the claim was the Letter of Credit No. L-8729, not the Bill of Lading relied upon by the majority. Accordingly in his view, the claim in the action was that of the relationship of a banker and his customer, and not a claim in Admiralty as the majority hold. In his view, the Bill of Lading and other documents were mentioned only as documents in possession of the appellants and with which the goods ought to have been released if so endorsed by the appellants. Nnaemeka-Agu JCA pointed out that

"...The appellant bank which founded its claim on the Letter of Credit No. L-8729 is actually concerned in this suit with the manner the appellants have behaved in breach of its agreement with the 2nd appellants and not with the "carriage of goods"...A close look at the claim in the writ set out above shows that the gist of the action before the court is the unauthorized release of the rice by the 1st respondents to the 2nd respondents after it had been cleared from the ship i.e. release of the goods without the necessary documents. It has nothing to do with carriage of goods as defined above. In my opinion, this is a normal banker customer relationship in an international credit transaction (see Page Banking 8th Edn. pp. 631-632)."

On this view he came to the conclusion that the action before the court was in relation to a banking transaction which was not within section 7 (1) (b) (iii) of the Federal High Court Act 1973 as was held in Jammal Steel Structures Ltd. v. A.C.B. Ltd. (1973) I All N.L.R. (Pt. II) 208, 224 and Bronik Motors Ltd. v. Wema Bank Ltd. (1983) IS.C.N.L.R. 296 at p. 316. He concluded that all banking transactions, as distinct from banking measures were within the jurisdiction of the State High Courts. This therefore was a banking transaction and not an Admiralty matter within section 7(1)

(d) of the Federal High Court Act 1973. Plaintiff has now appealed to this Court on the grounds of appeal which have already been reproduced in this judgment.

Counsel relied essentially on their briefs of argument filed in respect of this appeal. Counsel to the appellants formulated the issues for determination in this appeal consistent with the grounds of appeal filed which may for convenience be considered under the issues of the jurisdiction of the trial court, and issues on the merit of the case. The court of appeal had allowed the appeal on both grounds. The issue for determination as formulated summarily stated are as follows:-

Whether the period of limitation prescribed by Article 3 Rule 6 of the Hague Rules applied to an action for tort brought, not against the carrier of goods under a contract for the carriage of goods by sea, but against an Agent directly for the negligence or conversion committed by the agent itself after the goods have been landed.

(ii) Whether there has in this case been a loss or damage to the cargo within the meaning of Article 3 Rule 6 of the Hague Rules.

(iii) Whether on the facts of this case, the right of action of the Plaintiff has been extinguished by virtue of Article 3 Rule 6 of the Hague Rules.

(iv) Whether the Lagos High Court did not have jurisdiction to hear and determine this suit because the claim therein was an Admiralty matter.

Counsel to the Respondent having not suggested an alternative formulation, would appear in his brief of argument to have adopted the issues for determination as formulated by counsel for the appellants.

I have already observed in this judgment that the ground of appeal may be considered under two main issues, namely,

(a) the jurisdiction of the High Court of Lagos State in respect of the claim before it, and

(b) whether Plaintiff established the liability of the Defendants.

The necessity for expressing any view on (b) depends on the conclusion in (a). I shall begin by consideration of the submissions in respect of the jurisdiction of the Lagos State High Courts, which is ground of the grounds of appeal in this appeal.

The submission of Mr G.O.K. Ajayi S.A.N. on this ground was two pronged and in the alternative. This was that (1) since the 1st October, 1979 and by virtue of section 236 (1) of the Constitution of the Federation, the unlimited jurisdiction vested in the Federal High Court. Accordingly the Lagos State High Court was vested with jurisdiction in matters relating to Admiralty, (ii) The other submission was that this was not an Admiralty matter, being a transaction between a banker and its customer, in respect of which the Lagos State High Court had jurisdiction.

Elaborating on the first arm of the submission, Mr Ajayi conceded that if the action in this appeal had been instituted before the 1st October, 1979 when the Federal Revenue Court Decree applied unaffected by any constitutional provision, the contention that the Admiralty jurisdiction was vested exclusively in the Federal Revenue Court as was held by the Supreme Court in American International Insurance Co. Ltd. v. Ceekay Traders Limited (1981) 5 S.C. 81 would have been unanswerable. This was because the Federal High Court Decree No. 13 of 1973 had the status of a Decree and was effective to deprive the State Courts of their existing Admiralty jurisdiction and vest it in the Federal Revenue Court S. 8 (3). Counsel submitted that the coming into force of the Constitution on the 1st October, 1979, and with the vesting of "unlimited jurisdiction" in State High Courts by section 236 (1), therein the legal position was reversed. It was accordingly submitted that the Court of Appeal was wrong to have relied on the American International Insurance Co. Ltd. v. Ceekay Traders Ltd. (1981) 5 S.C. 81 in holding that State High Courts had no jurisdiction in Admiralty matters. Counsel cited the judgment of this Court in Sule v. Nigerian Cotton Board (1985) 2 N.W.L.R. (Pt. 5) 17, and submitted that the present action having been instituted at the Lagos High court as Suit No. LD/562/80 on the 3rd day of December, 1980 after the Constitution of 1979 came into force, only the provisions of the Constitution govern. Counsel referred to the general jurisdiction of State High Courts in section 236 (1) of the Constitution 1979, as consisting in "UNLIMITED JURISDICTION to hear and determine any civil proceedings in which the existence or extent of a legal rights, power, duty, liability, privilege, interest, obligation or claim is in issue, or to hear and determine any criminal proceedings involving or relating to any penalty forfeiture, punishment or other liability in respect of an offence committed by any person. "It was then argued that the scope of this jurisdiction was only limited to the extent that it is so expressly provided by the Constitution. Counsel cited and relied on the judgment of this Court in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 S.C. 193, and to the opinion of Idigbe J.S.C. at pp. 193 line 11 to 195 line 24. The submission is that the State High Court has the Constitutional power to exercise all the jurisdiction vested in the Federal High Court by S. 7 of the Federal High Court Act as provided by S. 230 (1) and preserved by S. 230 (2) of the Constitution 1979.

Mr Ajayi recognised that the Federal High Court Act 1973 was at the coming into force on the 1st October, 1979 an existing law, within the definition of section 274 (1) of the Constitution 1979. Counsel also recognised that the jurisdiction of the Federal Revenue (Now) High Court in S. 7 was protected from interference by other courts by S. 8 of the Federal Revenue Court (Now High Court) Act 1973 which excluded the jurisdiction of other courts in respect of the subject matters in S. 7. Mr Ajayi then submitted that section 8 of the Federal High Court Act, which excluded the jurisdiction of other Courts with respect to the matters in S. 7 was not a provision with respect to jurisdiction of the Constitution but an existing law. Accordingly, since Section 8 purports to impair the unlimited jurisdiction of State High Courts, it is to that extent by Section 1 (3) of the Constitution inconsistent with Section 236 (1) and is void. Therefore the Lagos State High Court by virtue of its jurisdiction being unlimited under section 236 (1) of the Constitution has jurisdiction in Admiralty matters. In effect Mr Ajayi's contention was that the Federal High Court lost its exclusive jurisdiction of the matters in respect of which it was established as from the coming into force of the Constitution 1979 and the vesting of unlimited jurisdiction in State Courts.

In his submission, Chief Sowemimo S.A.N. rejected the contention that section 236 (1) of the Constitution vested State High Courts with unlimited jurisdiction in all matters. He submitted that the whole of the Federal High Court Act, No. 13 of 1973 was expressly preserved by the 1979 Constitution. Counsel pointed out that by sections 7 and 8 of that Act, exclusive jurisdiction in respect of matters within the jurisdiction of the Court, including Admiralty matters, was vested in the Federal High Court. Chief Sowemimo referred us to Section 8 (1) of the Federal High Court Act, 1973 and to Section 230 (2) of the Constitution, 1979 which empowered the Federal High Court established by S. 230 (1) of the Constitution "to continue to have all powers and exercise the jurisdiction conferred upon it by any other law." It was submitted that this section "gives its exclusive jurisdiction as enacted by Section 8 a constitutional imprimatur." Counsel cited Bronik Motors Ltd. v. Wema Bank Ltd. (supra) and quoted extensively from all the judgments but one to support his contention that the jurisdiction of the State High Courts was limited by the jurisdiction vested in the Federal High Court. Chief Sowemimo S.A.N. continued his submission by saying that the Federal High Court Act having been preserved by the Constitution, the question of inconsistency between that Act and any provision of the constitution was untenable. It was finally submitted that Section 236 (1) of the constitution 1979 applied subject to the provisions of the Constitution. Counsel referred to Section 237 as one such provision and Section 230 as another.

I think the fate of this case could have been and will here be determined by the determination of the court in which jurisdiction lies. The argument addressed to us by counsel to the appellants was that the Lagos State High Court had concurrent jurisdiction with respect to the matter by virtue of its exercise of unlimited jurisdiction. The second contention of appellant that the matter was not within Admiralty jurisdiction and consequently within its jurisdiction, puts it in the position of strength to exercise jurisdiction whether or not the matter was within Admiralty jurisdiction. The Respondents contention was that this being an Admiralty matter jurisdiction was vested exclusively in the Federal High Court.

It is an elementary principle for the determination of jurisdiction to consider the subject matter of the claim as endorsed in the writ of summons. In Adeyemi & Ors. v. Opeyori (1976) I F.N.L.R. 149. The Supreme Court stated the position clearly when it said,

"It is a fundamental principle of Law that it is the claim of the Plaintiff that determines the jurisdiction of the court which entertains the claim."

This is because the court can only exercise jurisdiction to hear and determine the subject matter of the claim before it, where such subject matter was within its jurisdiction and there was no feature in the case which precluded it from the exercise of its jurisdiction. That is that the claim before the court must also be competent in the sense that it came before the court initiated by due process of law, and upon fulfilment of the necessary condition precedent to the exercise of jurisdiction-see Modukolu & Ors. v. Nkemdilum & Ors. (1962) I AIINLR 587, 595. Of course, every court can exercise jurisdiction for the purposes of determining whether it has jurisdiction to hear and determine a matter before it-see Barclays Bank Ltd. v. Central Bank Ltd. (1976) 6 SC. 175. This is not the same as the jurisdiction with respect to the subject matter of a claim which enables the court to hear and determine the claim before it on its merits. That there is a cause of action is not deputed. This is because the aggregate of the bundle of rights arising from the transactions between the parties gives rise to the making of a substantive claim. Thus the factual situation relied upon by the Plaintiff is recognised by the law as capable of being enforced against the defendants-see Trower & Sons Ltd. v. Ripstein (1941) AC. 254 at p. 263. The dispute in this case is as to the categorisation of the bundle of rights and in what court action could be validly brought.

I have already set out the claim of the Plaintiff in this case. The substance of the claim is that it is for the sum of N1,285,313.00, being damages incurred by the Plaintiffs on behalf of the 2nd Defendant relating to the loss or misdelivery of goods by the 1st Defendant to the 2nd Defendant without the authority of the Shipper or the Plaintiffs and without observing the pre-conditions stipulated in the bill of lading, delivered the goods to the 2nd Defendant who was the consignee of the goods. The 2nd Defendant had submitted to judgment. The Plaintiff was not aware of the arrival of the goods but 1st Defendant was. Plaintiff on receipt of the bill of lading notified the 2nd Defendant. The 2nd Defendant did not collect the documents by paying for the value of the goods. Unknown to Plaintiffs 1st Defendant, without the originals of the bills of lading collected and delivered the goods to the 2nd Defendant. Counsel for the appellants relied on, paragraph 7 of Plaintiffs reply to the Amended statement of defence where it was pleaded that "the action against the 2nd Defendant is contract and the action against the 1st Defendant is in tort, that the 2nd Defendant has not satisfied the amount claimed against it, and the Plaintiff will rely at the trial on the evidence of the High Court Bailiff." Counsel therefore contended that the action against 1st Defendant was in tort for negligence committed by the 1st Defendant and not for any wrong for which its principals, the carriers, were responsible. It was pointed out that there was no allegation or claim against the carriers. It was contended that they were not sued as carriers of the goods for failure to discharge their obligations under the bill of lading.

Counsel for the Respondents is not disputing the facts accepted by the trial Judge. He was concerned with the meaning of loss or damage in Carriage of Goods by Sea Law. He cited Carvers Carriage of Goods by Sea 13th Edition Vol. 1, para. 130, p. 97 where it was stated,

"But in the case either of loss or damage to goods or of their conversion, an action in tort can be brought only by the owner of the goods including the pledge of the Bill of Lading."

Counsel submitted, and I agree entirely that the Plaintiff in this case was the pledgee of the Bill of Lading. The grounds on which the claim as rejected in the High Court was that there was neither loss of nor damage to the goods. Counsel submitted that the concept of "loss or damage" in Carriage of Goods by Sea has been construed in Anglo-Saxon Petroleum Co. v. Adamastos Shipping Co. (1975) 2 QB 233 at p. 253 to include loss incurred through misdelivery or delay even where no loss of the goods was sustained. Carver's Carriage of Goods by Sea 13th Ed. VOI. 1, para. 458 page 313 was also referred to. He also cited Sze Hai Tong Bank Ltd. v. Rambler Cycle Co. Ltd. (1959) 3 All E.R., 183, 184 which was a case of Shipping agents releasing goods without production of the Bill of Lading. Counsel also cited London Joint Stock Bank v. British Amsterdam Maritime Agency (1910) 16 Comm. Case 102, 104

L.T. 143, where the action was against the agents of the Shipping Company who released goods to the consignee without production of the Bill of Lading which was in the custody of the Bank. The delivery was held to be wrong and the Bank entitled to judgment.

I have carefully read the cases cited and considered the arguments on both sides on the facts of this case and the claim. The issue is whether the claim is one relating to carriage of goods by sea or it is a mere banker and customer relationship founded on the letter of credit relied upon in the claim in this action. If it is the former, there is no doubt it is an Admiralty matter and within the exclusive jurisdiction of the Federal High Court. If the latter, the State High Court has jurisdiction. The claim in my opinion was founded on the loss by misdelivery of the goods to the 2nd Defendant. The amount in the letter of credit merely indicates the loss in terms of money in respect of which the 2nd Defendant was to indemnify the Plaintiff. The Bill of Lading is the document of title relied upon by the Plaintiffs. The Court of Appeal was right to hold that

"the action being grounded upon the Bill of Lading Exhibit 2-2B is undoubtedly a contract for the carriage of goods by sea."

The action is therefore a matter properly within the Admiralty jurisdiction of the Federal High Court under S. 7(1) (d) of the Federal High Court Act 1973. The State High Court by virtue of S. 8 (1) and 63 (3) (c) of the Federal High Court Act 1973 has no jurisdiction in such matters.

Issue of Jurisdiction

It is essential at this point to consider the all important question of the plenitude and aptitude of the State High Courts under section 236 (1) of the Constitution 1979. It appears from judicial opinion, and none of them directly relevant for the determination of the issue before the Court, that the provisions of Section 236 (1) of the Constitution 1979 vested State High Courts with unlimited jurisdiction in all matters brought before it. This is irrespective of the subject matter or geographical limitations-See Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 SC. 158. The general issue in this appeal is whether State High Courts were vested with concurrent jurisdiction in all matters within the jurisdiction of the Federal High Court or that the Federal High Court has exclusive jurisdiction in all matters within its jurisdiction.

The scope of the jurisdiction of State High Courts and their relationship with the Federal High Courts has been discussed in the judgment of this Court in the recent decision of Bronik Motors Ltd. v. Wema Bank Ltd. (supra) and Jammal Steel Structures Ltd. v. A.C.B. Ltd. (supra) American International Insurance Co. Ltd. v. Ceekay Traders Ltd. (1981) 5 SC. 81. I proceed to discuss the Bronik case because it is the main plank on which counsel for the appellant rest his submissions in this case. He also sought to extend its ratio decidendi by reliance on dicta therein. The main contention in the Bronik case was whether the Constitution by section 230 (1) (b) of the Constitution invested the Federal High Court to the exclusion of State High Courts with jurisdiction in respect of all matters in the Exclusive Legislative List in the Schedule to the 1979 Constitution. In rejecting the contention, this Court observed that although section 230 (1) (b) invested in the Federal High Court the jurisdiction of the Federal Revenue Court Decree No. 13 of 1973, the Jurisdiction of the Federal High Court was limited only to so much of the jurisdiction as was conferred expressly by the Federal High Court Act 1973, as an act of the National Assembly, and also under specific sections of the 1979 Constitution viz section 42 and 237 (a) as well as such other jurisdiction as may be conferred on it by future enactments of the National Assembly under Section 230 of the 1979 Constitution. The provisions of Section 230 (1) (a) was construed as relating only to "revenue matters" of the Government of the Federation as may be prescribed by the National Assembly in the future. In construing the provisions of section 230 (1) (b) it was held that the expression "may be prescribed" relate only to future enactments of the National Assembly, and must relate to items in both the Exclusive and Concurrent Legislative List within the competence of the National Assembly, other than revenue matters within the contemplation of Section 230 (1) (a). The court held that any other interpretation of the earlier provisions of Section 230 (1) and the latter provisions of Section 230 (2) was unnecessary, and would lead to absurdity. Even on this view the National Assembly was constitutionally capable of vesting on the Federal High Court with jurisdiction in respect of all matters within the legislative competence of the National Assembly, the Federal High Court did not possess such jurisdiction until the legislative power had been so exercised.

It is true the Bronik case construing section 236 (1) of the Constitution 1979, held that the section vested State High Courts with unlimited jurisdiction "to hear and determine civil proceedings in which the existence of a legal right, power of duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty forfeiture, punishment or other liability in respect of an offence committed by any person." In construing the amplitude of the jurisdiction of State High Courts it was held that the provisions of Section 250 of the Constitution should be read together with Section 236 (1) and that they both constitute the totality of jurisdiction vested in the State High Courts under the Constitution. On this construction the State High Courts would appear to have and would validly exercise jurisdiction in all matters despite the provisions of any existing legislation excluding their jurisdiction in such matters. I wish to observe here in passing although I will refer to it later in the judgment that the general judicial view, which was led by the decision in Jammal Steel Structures Ltd. (1973) 11-12 SC, is that the jurisdiction of the Federal Revenue Court was confined to matters relating to the revenue of the Government of the Federation.

It seems to me that the contention of Mr Ajayi in this case is a logical extension of the observations of this Court with respect to the jurisdiction vested by the Constitution in the Federal High Court and the State High Courts. Of course, if the construction that State High Court was constitutionally invested with jurisdiction in all subject matters and the jurisdiction of the Federal High Court was consistently limited to the subject matters prescribed in any existing law or a law of the National Assembly, is a correct interpretation of the enabling provisions then the jurisdiction of the State High Courts includes all the jurisdiction of the Federal High Court and is concurrent, I do not think it is. I shall proceed anon to show that the view is mistaken.

I have prefaced my consideration of the enabling constitutional and statutory provisions with a summary of the

Bronik case relied upon before us. But I do not think that case was intended to decide and did not in fact decide what is being claimed that it decided. The claim before the court in Bronik's case was for specific performance of an agreement between parties before the court. The endorsement on the writ of summon: clearly disclosed that the claim was brought by the Plaintiff in that case against the Defendant to enforce the performance of the agreement entered into in the ordinary relationship of Bankers and Customer. The issue therefore was whether the subject matter of the claim fell within the provisions of Section 7 (1) (b) (iii), relating to banking, foreign exchange, currency or other fiscal measures; in which case the Federal High Court would have exclusive jurisdiction. If it did not it would have no jurisdiction. Following our decision in Jammal Steel Structures Ltd. v. A.C.B. Ltd. (supra) this Court held that the claim was merely one between a banker and its customer which was not within Section 7 (1) (b) (iii). Accordingly, it was the State High Court, and not the Federal High Court which had jurisdiction. It was also held that the only banking matters in which the Federal High Court had jurisdiction were those conferred on it by S. 7 (1) (b) (iii).

The question as to the general jurisdiction of the Federal High Court and the scope of the jurisdiction of the State High Courts decided in Bronik's case though relevant to the determination of the issue of jurisdiction in that case was not the issue before the court. In determining the ratio decidendi of a case it is safer to consider the claim before the court and the issue which the court was called upon to decide. Thus the reasons given by the court for deciding the claim before it, is the ratio decidendi which the court is obliged to follow in subsequent cases and will not lightly depart from unless to avoid the perpetuation of errors see Bucknor-Maclean v. Inlaks Ltd. (1980) 8-11 S.C. 1 at pp. 23-25. The ratio decidendi of a Judgment consists of the material facts of the case plus the conclusion. Accordingly opinions in the Judgment which are not part of the material facts even where relevant to the determination of the case do not constitute part of its ratio decidendi, and are not binding. It is accepted that these rules be observed in the interest of uniformity consistency and certainty in the determination of disputes. It is a well settled rule of precedent in the administration of justice in our courts that a case is only authorised for what it actually decided-see Quinn v. Leathem (1901) AC. 495 at p. 506. Notwithstanding the bindingness of the ratio decidendi, this Court has laid it down in Bucknor-Maclean v. Inlaks & Ano. (supra) that it will depart from a previous decision and will not perpetuate present errors in its observance of the rule of stare decisis even where the rule applied,-see also Nofid Surnkatu v. Nigerian Housing Development Society Ltd. (1981) SC. 26; Alhaji Raji Oduola & Ors. v. Gbadebo Coker & Ors. (1981) 5 SC. 197.

I think it is appropriate at this point and before embarking on the construction of the relevant provisions to state in very brief outline the legislative history of the jurisdiction of the Federal High Court. Such a discussion will assist in elucidating on the other hand the scope of the jurisdiction of the State High Courts. The Supreme Court in a Unitary Nigeria, became the Regional High Court on the creation of regions in 1954, and on the creation of States in 1967 it became the State High Court. The Supreme Court exercised original jurisdiction in all matters within the country. Thus the history of the exercise of the jurisdiction by High Courts is consistent with the history of our Federalism.

The Federal High Court was established by the Federal Revenue Court Decree No. 13 of 1973. Its jurisdiction was contained in sections 7 and 8 of the Decree. In addition s.63(4) of the Decree provided for the modification by construction, the provisions of the Regional Courts (Federal Jurisdiction) Ordinance 1958 consistent with the jurisdiction vested in the court by the Decree. The Federal Revenue Court Decree enjoyed the enhanced legislative status of a Decree of the Supreme Military Council, and by section 1(3) of the Constitution (suspension and modification) Decree No. 1 of 1966 the provisions of the 1963 constitution and of all existing laws of the legislatures applied subject to its provisions. Sections 7(1) and 8(1) 63(4) of Federal Revenue Court Decree provide as follows:

xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx

7 (1) "The Federal Revenue Court shall have and exercise jurisdiction in civil causes and matters-

(a) "relating to the revenue of the Government of the Federation in which the said Government of the Federation or any organ thereof or a person suing or being sued on behalf of the said Government is a party;

(b) connected with or pertaining to-

(i) "the taxation of companies and of other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation.

(ii) Customs and excise duties

(iii) Banking, foreign exchange, currency or other fiscal measures;

(i) the operation of the Companies, Decree 1968 or any other enactment regulating the operation of companies incorporated under the Companies Decree 1968,

(ii) any enactment relating to copyright, patents, designs, trade marks and merchandise marks;"

(d) of Admiralty jurisdiction."

8 (1) In so far as jurisdiction is conferred upon the Federal Revenue Court in respect of the causes or matters mentioned in the foregoing provisions of this Part the High Court or any other court of a State shall, to the extent that jurisdiction is so conferred upon the Federal Revenue Court, cease to have jurisdiction in relation to such causes of matters."

63 (4) For the avoidance of doubt the following enactments:

"(a) The Regional Courts (Federal Jurisdiction) Act,

(e) The Admiralty Jurisdiction Act 1962, and

(f) such other Federal enactments as the Head of the Federal Military Government may by order specify", shall be construed with such modifications as may be necessary to bring them into conformity with the provisions of this Decree."

On the creation of State High Courts with jurisdiction in respect of matters within the legislative competence of the State legislative, two yawing gaps become apparent. The Federal Government had no courts to administer the laws of its legislative, and the State High Courts has no jurisdiction in respect of matters within the legislative competence of the Federal Legislative. The defect was ameliorated by the provision of the Regional Courts (Federal Jurisdiction) Ordinance Section 44 of the Interpretation Act Cap. 89 which authorised the Regional Magistrates Courts and High Courts to administer Federal laws within the limits of their jurisdiction, as prescribed by the Regional laws regulating them. In 1958 S. 4 of the Regional Courts (Federal Jurisdiction) Ordinance, vested in Regional Courts the exercise of jurisdiction in civil and criminal causes within the legislative competence of the Federal Legislature and appeals there from. This law which became the Regional Courts (Federal Jurisdiction) Ordinance, Cap. 177 Laws of the Federation 1958. The position remained the same till the Military Government in 1966. The problems of this anomalous arrangement were accentuated by the exercise of total powers by the Military Government throughout the country. The Military could not for long tolerate the jurisdictional differences and proceeded to solve the situation. Among the many reasons which necessitated the Federal Governments' establishment of a court was the urgent need at the time to relieve the State High Courts of congestion in the courts by depriving them of some of the jurisdiction they exercised and vesting them in a Federal Court. The congestion of cases in the courts was said to have adversely affected the collection of Federal Government revenue. It was this state of affairs that brought about the creation of the Federal Court essentially for cases concerning the revenues of the government of the Federation. The subject matter of its jurisdiction was accordingly prescribed and made exclusive to it. The court was established in the teeth of considerable and sustained opposition from the Bench. A majority of the Chief Justices of the period considered the court redundant and a colossal waste of much needed manpower. The opportunity for reviewing its usefulness offered itself during the review of the 1963 Constitution which resulted in the present Constitution. The Judiciary Committee of the Constitution Drafting Committee recommended its retention and restyling as the Federal High Court and vested with increased jurisdiction embracing all matters within the Exclusive Legislative List of the National Assembly.

The parent body, namely the Constitution Drafting Committee rejected this recommendation and recommended its abolition. The Constituent Assembly with legislature responsibility for considering and approving the Draft of the Constitution Drafting Committee recommended its retention in its present form and was accordingly made a provision of the Constitution and as decreed by the Federal Military Government. Hence, the amplitude and plenitude of the Federal High Court as it was renamed by S. 230(1) of the Constitution 1979 involves the reading together of Section 230(1)(2)231, of the Constitution 1979, and sections 7, 8, 63(3) of the Federal High Court Act, 1973. If so read the jurisdiction vested in it will be exclusive to it, notwithstanding S. 250(1) of the Constitution 1979.

The Scope of the banking jurisdiction of the Federal High Court was examined in Jammal Steel Structures Ltd. v. A.C.B. Ltd. (1973) 11 SC. 77 at p. 120. It was held that the court had no jurisdiction in ordinary banking transactions between a banker and its customer. It was however held that it has jurisdiction in respect of matters connected with or pertaining to banking, foreign exchange, currency or other fiscal measures in Section 7(1)(b)(iii). In the Jammal case, it was the opinion of the majority that the Federal Government revenue element dominated the construction of the subject matter of the Court's jurisdiction. However, on a careful analysis of the section as a whole the view seems not to be supported by all the provisions of the section. It must be conceded that Section 7(1)(b) relate to civil matter relating to the revenue of the Government of the Federation. The same cannot be said of the matters in Section 7(1)(c)(d), which are matters arising from the operation of the Companies Decree 1968 or other enactments regulating the operation of such companies, or causes arising from enactments relating to copyrights, patents, designs, trade marks and Merchandise marks, and of Admiralty. Obviously the subject matters in the second category do not necessarily, if ever, involve Federal government revenue. It has been held in American International Insurance Co. Ltd. v. Ceekay Traders Ltd. (1981) 5 SC. 81 and Fas Brothers Ltd. v. Marine Merchants (Nig.) Ltd. (1978) LRN.5 that Admiralty jurisdiction is exclusive to the Federal High Court. By Section 8(1), and 63(3) State High Courts were excluded from the jurisdiction vested in and exercised by the Federal High Court. In 1979, the Constitution which came into force on 1st October, by Section 274(1) saved the Federal Revenue Court Decree 1973 as an existing law. Again Section 275(1) saved the Court and by Section 230(1)(a)(b) the jurisdiction it exercised prior to 1979 was preserved. The Section 230(2) was unequivocal as to the preservation of the jurisdiction by providing that the Federal Revenue Court shall as from the date when this section comes into force be restyled "Federal High Court," and shall continue to have all the powers and exercise the jurisdiction conferred upon it by any law."

At the same time the S. 234 of the Constitution provided for the establishment of the State High Courts and for its jurisdiction in Section 236. It is pertinent to observe that Section 236(1) provides as follows-

"Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings, involving or relating to any penalty, forfeiture, punishment or other liability in respect of any offence committed by any person."

In addition Section 250 (1) of the Constitution 1979, derived from the Regional Courts (Federal Jurisdiction) Act, 1958, Sections 3 and 4 provides as follows-

"where by the Law of a State jurisdiction is conferred upon any court for the hearing and determination of civil causes and of appeals arising out of such causes, the court shall have like jurisdiction with respect to the hearing and determination of Federal causes and of appeals arising out of such causes."

In order to understand the amplitude and plenitude of the jurisdiction of State High Courts, it is important to construe all the related provisions together. It is an accepted principle of construction that the constitution should be read as a whole to bring out the intention. I am not oblivious of the fact that these sections were construed by this Court in Bronik's case (supra) and Jammal case (supra) and authoritative pronouncements were made on the same expressions involved in this appeal. I shall rely essentially on these pronouncements and the well settled rules of interpretation in my construction of these same section. I think I am right in saying that even where the ratio decidendi of a judgment is binding on the court, the words used in the interpretation of an act in such binding decision are not binding. See London Transport Executive v. Betts (1959) AC.211, 246. This is because when interpreting a statute or indeed a Constitution, the function of the court is to apply the words being construed to a given situation. What the doctrine of precedent demands is to apply the statute in the same way in any similar situation. It is clearly not applicable in a different situation. See Goodrich v. Paisner (1957) AC, 65, 88. Hence in all other cases not covered by similar situation, the judge must be governed by his own construction of the statute and not by the words of the judges in previous decisions. The rationale of this view is founded on the reasoning that no court is entitled to substitute its own words for those of the Statute. It is however a different consideration where words in a statute have received judicial construction in the superior courts and the legislature has repeated them without alteration in subsequent statute.-See Ex parte Campbell (1869) LR.5 Ch. 763 at 766. However, the court will be wary and indeed slow in departing from a construction which has been long acted upon, and especially since the decision, re-enacted the provision so construed in the same terms-See Royal Court Derby Porcelain Ltd. v. Raymond Russell (1949) 2 KB. 417 at p. 429. Accordingly the ratio decidendi is only a guide in substantially different circumstances. I shall therefore be guided and not bound in my interpretation of these provisions by the decisions I have referred to above.

I shall now turn to the construction of the jurisdiction of the State High Court, I have already set out the Constitutional provisions. The expression "Unlimited jurisdiction," and the mention of "any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue", or "to any criminal proceedings involving or relating to any penalty, for future, punishment or other liability in respect of any offence committed by any person" is what is in issue. It is a well settled principle of the common law, which is applicable by S. 274 (1) of the Constitution, that with respect to a High Court every matter not expressly so prescribed as outside the jurisdiction is within its jurisdiction-See Peacock v. Bell Sound 74, cited in London v. Cax L.R.2 H.L. 1259. The jurisdiction of the Federal High Court has been expressed and shall be deemed to be outside the jurisdiction of the State High Courts even as superior courts of record. Section 6 (3) of the Constitution 1979 has named in S. 6(5) (c) (d), both the Federal High Court and the High Court of States as superior courts of record under the Constitution and each is vested with all the powers of a superior court of record. Thus the jurisdiction of State High Courts must be those vested in them by virtue of the above quoted provisions. It has been held in several decided cases that the judicial powers vested in the courts by S. 6 of the Constitution does not relate to the exercise of jurisdiction with respect to a subject matter. It is the power to be exercised with respect to a subject matter within the jurisdiction. See Bronik Motors v. Wema Bank Ltd. (1983) 6 SC. 159, Adesanya v. President of Nigeria & Anors. (1981) 5 SC. 112. It was submitted by Mr Ajayi S.A.N. for the Appellants that the unlimited jurisdiction in Section 236 (1) of the Constitution is with respect to the subject matter in respect of which the court can exercise jurisdiction. Hence State High Courts is vested with all the jurisdiction exercised by the Federal High Court and therefore possess concurrent jurisdiction with the Federal High Court. The case of Bronik Motors Ltd. v. Wema Bank Ltd. has been cited in support of this construction. I do not think that case is authority for the proposition. I have already pointed out that the ratio decidendi of the Bronik case cannot be so extended, because of the facts of the case and the provision construed. Furthermore there are strong dicta in the judgments which lead to the opposite conclusion. In Bronik Motors Ltd. v. Wema Bank Ltd. (supra) Eso J.S.C. referring to the jurisdiction of the State High Court said, at p. 244.

"The extent of the jurisdiction of the State High Court, when section 236 of the Constitution is read with the provisions of the Constitution, in particular Sections 230, 237 and 250 (and the effect of Section 250 will be discussed anon) is so wide that it covers, to my mind, jurisdiction in both Federal and State causes. The provisions have, by positive implication created an unlimited jurisdiction in all matters, be they civil or criminal in the State High Court once it is a matter within the State except as limited by Section 230."

This is clearly a concession to the limitation of the jurisdiction of the State High Court by the jurisdiction vested in the Federal High Court by Section 230. Idigbe J.S.C. also at pages 196-197, conceded that the jurisdiction of State High Courts under S. 236 was limited by Sections 8 of the Federal High Court Act as an existing law, and Sections 212, 237(a) of the Constitution. Obaseki J.S.C. at p. 222 without expressly saying so suggested that the jurisdiction vested in the Federal High Court by implication diminished the jurisdiction of the State High Courts. His Lordship is reported at pages 222-223 as saying that

"The restyling of the Federal Revenue Court as the Federal High Court was dependent on the fact that the Federal Revenue Court Decree 1973 established the Federal Revenue Court and empowered it to exercise jurisdiction to which sub-section (1) of this Section 230 relates: Furthermore, it puts a constitutional stamp on the jurisdiction conferred on the court by implication diminished the jurisdiction of State High Courts."

His Lordship is reported at pages 222-223 as saying, that

"The restyling of the Federal Revenue Court as the Federal High Court was dependent on the fact that the Federal Revenue Court Decree 1973 established the Federal Revenue Court and empowered it to exercise jurisdiction to which sub-section 10 of this Section 230 relates. Further, it puts a constitutional stamp on the jurisdiction conferred on the court by that Decree and any other law, by its express provision that "it shall continue to have all the powers and exercise the jurisdiction conferred on it by any law"

The lead judgment of Nnamani J.S.C. is also very clear on the point when he said,

"There does not appear to be any controversy as to the proper meaning of Section 230 (2) of the 1979 Constitution. In my view, that section not only restyles the old Federal Revenue Court as Federal High Court but rests in the Federal High Court all the powers and jurisdiction enjoyed by the old Federal Revenue Court. Accordingly in my view pursuant to Section 274 of the 1979 Constitution, the Federal High Court will continue to enjoy such jurisdiction and powers as were conferred on the Federal Revenue Court by the Federal Revenue Act 1973."

It is a cardinal principle of interpretation that where the words used in an enactment are clear and unambiguous they must be given the effect of their ordinary meaning. This court has adopted a ??? in the construction of the provisions of our constitution of incorporating the words so used to save rather than defeat the intentions of the constitution. Our role is to interpret the sections liberally-see Nafiu Rabiu v. The State (1980)5-11 SC. 130 at 148. Hence where the alternative of two modes of construction is likely to produce a result opposed to the intentions of the law regarding the section construed it is the duty of the Judge to prefer and apply the construction that is in accord with and will lead to the obvious intentions of the legislation. The construction of the expression "unlimited" in Section 236 suggested is obviously directed at construing out of existence any other court established by law and existing before the coming into force of the 1979 constitution. Thus the Sharia Courts, the jurisdiction exercised by customary Courts will be vested in the State High Courts by mere construction. The history of the provision suggests the contrary.

In Bronik's case (supra) reference was made to the legislative history of Federal High Court Act as indicating fairly the intentions of the provisions of the Constitution. In that regard, reference was made to the fact that the Constitution Drafting Committee set up in 1975 recommended the abolition of the Federal Revenue Court. It was then argued that the Court was retained by the Constituent Assembly set up in 1977 which had the responsibility of approving the Draft Constitution and the Supreme Military Council which had the responsibility of enacting it contrary to the recommendations for its abolition. This was one of the reasons for its very restricted jurisdiction and the unlimited jurisdiction of State High Courts Law. By the methods of any process of legislation, the opinion and recommendation of the draftsman which the Constitution Drafting Committee represented in the drafting of the Constitution, cannot be regarded as representing the intentions of the Law maker. In the circumstances of this case and in a Military Government without a legislature, the Constituent Assembly properly approximated the Legislature. But ideally, the Constituent Assembly and the Supreme Military Council together satisfy the traditional requirements of a validly enacted law as having been enacted by the Government. It therefore follows that the result of the process is the intention of the law maker. (See generally Report of the Constitution Drafting Committee, (1976) Vol. II, pp. 101-129.

A law is a result of the deliberation of all the arms of government hence it will be in opposite to determine the intention of a law by the meaning attached to it by one of the institutions or by individual members. It is more remote to consider the opinion of the draftsman as representing the intention of the legislation. Accordingly where there is a difference in language between the law as opposed by the Draftsman and the law as eventually enacted, the only reasonable conclusion is that the change was not merely accidental but intentional. It is a rejection of the suggestions in the draft. The Constitution as enacted was by a decree of the Supreme Military Council. It is therefore my considered opinion that the provisions of S. 230(1) of the Constitution 1979, and the Inclusion of the section that the Federal High Court "shall continue to have all the powers and exercise the jurisdiction conferred on it by any law" was intentional. It was to enable it to exercise the exclusive jurisdiction in the matters vested in it under the Federal Revenue Court Act 1973, Section 7 and 8. Exclusive-means without participation of any other, and exclusive jurisdiction means a jurisdiction in which no other court has participation. Thus the exercise of exclusive jurisdiction in matters prescribed in Section 7 and 8 clearly diminishes pro tanto the jurisdiction of State High Courts.

I now return to the expression "unlimited jurisdiction" in Section 236. The ordinary meaning of the words "unlimited" is, "without confines, boundless unrestricted." The word "unlimited" modifies the word "jurisdiction" in that section. The concept of jurisdiction is very wide in legal parlance. It may refer to the capacity of the court to hear and determine a matter before it, or indeed its geographical area of authority concisely stated, it connotes the geographic area in which the court has power or types of cases it had power to hear. It seems clear from the words of the section that it relates to the types of case, and in this case civil and criminal proceedings. The unlimited jurisdiction set out in Section 236 relate to the subject matter being civil and criminal proceedings, can partly be founded on the common law. The provision relating to criminal proceedings in this section without referring to any written law is inconsistent with the provisions of S. 33(8) of the Constitution. It is pertinent to observe that Section 236 relates to State Courts is in Part II of Chapter VII of the Constitution on the Judicature, Section 250 (13) on Part III, relating to supplemental provisions. Section 230 is in Part I relating to Federal Courts. Thus the section takes its meaning primarily from the part of the constitution of Legislation in which it is found. It therefore follows that S.236 is confined to matters relating to states and within the jurisdiction of the State. It is to enlarge its jurisdiction that Section 250 was provided. Otherwise, if its jurisdiction was unlimited in respect of all subject matter within the Constitution S. 250 conferring jurisdiction in Federal causes and offences would have been unnecessary. To complement the jurisdiction of State High Courts, as provided by S. 236(1). Section 250 of the Constitution provides as follows-

"(1) subject to the provisions of this constitution-

(a) where by the law of a State jurisdiction is conferred upon any court for the hearing and determination of civil causes and of appeals arising out of such causes. the court shall have like jurisdiction with respect to the hearing and determination of appeals arising out of such causes;

(b) X X X X

Federal cause is defined to mean civil or criminal cause relating to any matter within the legislative competence of the National Assembly. Thus it is only by reading Section 236(1) together with Section 250(1), that the State High Court can exercise jurisdiction with respect to the rights etc. prescribed in S.236(1), and in respect of civil and criminal causes arising from the laws of a state or of civil and criminal causes in respect to which the National Assembly has power to make laws. But those sections apply subject to the provisions of the Constitution, and therefore the jurisdiction they exercise are limited by the jurisdiction vested in other courts by the constitution. The State High Court cannot be correctly described as vested with unlimited jurisdiction with respect to subject matter. Its jurisdiction as a superior court of record is undoubtedly unlimited with respect of the exercise of its powers as to the penalty it can impose and the damages it can award in respect of matters with its jurisdiction. This interpretation leads me to the conclusion that the State High Court can exercise jurisdiction in all matters within the legislative competence of the State House of Assembly, and in all matters within the legislative competence of the National Assembly in respect of which the State House of Assembly is also competent to legislate, namely matters within the concurrent legislative list, and in matters arising from the common law. According to this construction, which is inescapable from a reading together of Section 236(1) and 250(1) of the Constitution 1979, it is difficult to hold as it is being suggested that the jurisdiction of State High Courts is unlimited with respect to the subject matter which they can adjudicate. In my opinion, indeed the contrary is the true constitutional jurisdiction vested in the State High Courts.

The jurisdiction of the Federal High Court is now provided in Sections 7, 8 and 63(3) of the Federal High Court Act 1973. It is this jurisdiction that was provided by Section 230(2) of the constitution it should continue to exercise. Mr Ajayi conceded in his submission that the jurisdiction vested in the Federal High Court by Section 7 of the Federal High Court is valid as an existing law even by the provisions of the constitution 1979. He however also submitted that the exclusive jurisdiction vested in the court by Section 8(1) of the Federal High Court Act is not part of the jurisdiction of the court in Section 7, and is inconsistent with the unlimited jurisdiction of State High Courts as provided by S. 236(1) of the Constitution 1979, and is accordingly void. Mr Ajayi therefore concluded that since there was no provision of the constitution excluding the jurisdiction of State High Courts in respect of the jurisdiction exercised by the Federal High Court, the State High Courts by virtue of the unlimited jurisdiction in Section 236(1) can exercise concurrent jurisdiction with the Federal High Court. This submission is difficult to comprehend. It seems to me an extension of the views expressed by this Court in Bronik Motors Ltd. v. Wema Bank Ltd. (supra). The proposition assumes that the jurisdiction of the Federal High Court was not intended to be exercised to the exclusion of other courts.

I have already stated in this judgment that the jurisdiction of the Federal High Court can be ascertained by a reading together of Section 230 of the Constitution 1979 and Section 7(1) 8(2) and 63(3) of the Federal High Court Act 1973. It is only relevant to point out that Section 236(1) 250 of the Constitution are to apply subject to other provisions of the Constitution. Section 230 of the constitution which by reference incorporates the jurisdiction of the Federal High Court is a provision of the Constitution to which Sections 236(1) and 250(1) are subjects. In determining the jurisdiction of the Federal High Court, it is not only the subject matters prescribed that matters, it is the exclusiveness of the exercise of jurisdiction that clearly brings out the intention of the law. The jurisdiction vested and its exclusiveness in the court go together to constitute the jurisdiction exercised. As was stated in Barraclough v. Brown (1987) AC. 615 they are uno flatu.

I think it is relevant to point out that the provisions of Section 63(3) of the Federal High Court Act 1973 is related to the Regional Courts (Federal Jurisdiction) Ordinance 1958, which has now been replaced by Section 250(2) of the Constitution 1979. By Section 63(3)(a)(e) of the Federal High Court Act 1973, the jurisdiction exercised by State Courts by virtue of the Regional Courts (Federal Jurisdiction) Ordinance 1958, with respect to Federal Causes, and Admiralty jurisdiction of State High Courts were to be read consistent with the jurisdiction conferred on the Federal High Court by Sections 7 and 8. Thus these causes were removed from the jurisdiction of State High Courts-Section 63(4)(a)(d)(e)(f) provided as follows-

"(4) For the avoidance of doubt the following enactments-

(a) the Regional Courts (Federal Jurisdiction) Act

XX XX XX XX

(d) Section 44 of the Law (Miscellaneous Provisions) Act

(e) the Admiralty Jurisdiction Act, 1962 and

(f) such other Federal enactment as the Head of the Federal Government may by order specify.

shall be construed with such modifications as may be necessary to bring them into conformity with the provisions of this Decree." The maxim generalle specialibus non derogant is recognised and applied in the construction of provisions of statutes, including in my respectful view, of constitutions.

According to the general provisions in Section 236(1) and 250(1) of the constitution 1979, will not affect or impair the express specific provisions in Section 230(1) of the constitution 1979,-see Seward v. Vera Cruz (1884) 10 App. Cas. 59 at p. 68. In the absence of a clear intention to alter the special provision by explicit language the general provision shall be read as excluding from its operation the cases provided for in the special provision or statute. Hence even if the jurisdiction of the State High Court could be read to be unlimited with respect to subject matter the Federal High Court Act has provided for the special cases in respect of the jurisdiction of the Federal High Court. This has been retained by the constitution by Section 230, and cannot be affected by the general provisions aforesaid. The conclusion which therefore follows is that the jurisdiction of State High Courts is excluded by Section 8(1) and 63(4)(a)(e) of the Federal High Court with respect to the subject matters vested in the Federal High Court. I am of the opinion, and I accordingly hold that the state High Court cannot exercise, any jurisdiction in matters already vested by law in the Federal High Court. The Court of Appeal was therefore right to hold that the subject matter of the action being a claim within the Admiralty jurisdiction of Federal High Court, the State High Court had no jurisdiction.

I will accordingly dismiss and hereby dismiss this appeal and affirm the judgment of the Court of Appeal.

Appellant shall pay costs of this appeal to the Respondents assessed at N300.

Aniagolu, J.S.C.-The lead judgment just delivered by my learned brother Coker, J.S.C., was made available to me in draft. I agree that the appeal should be allowed; the judgment of the Court of Appeal set aside, and the judgment of the High Court restored. I have also been privileged to read in draft the opinion of Pout, J.S.C. and I am particularly in agreement with the views he expressed in relation to the limitation period in Article III Rule 6 of the Schedule to the Carriage of Goods by Sea Act. I am in agreement with Belo, J.S.C., whose draft concurring judgment I had the privilege of reading.

Section 236 of the 1979 Constitution comes after Section 230 of the same Constitution being only six sections away from it. It must be assumed that the makers of the Constitution were quite aware of the provisions of the section and had those provisions well in mind before inserting the provisions of Section 236 by which the State High Courts were granted unlimited jurisdiction. Section 230(2) of the said Constitution by which the Federal High Court was empowered to continue to have all the powers and exercise the jurisdiction conferred upon it by any law has, by that provision, empowered the Federal High Court to continue to have the jurisdiction conferred upon it by Section 7 of the Federal High Court Act 1973, which jurisdiction includes admiralty jurisdiction. The result is that since the coming into effect of the 1979 Constitution the State High Courts, by reason of the unlimited jurisdiction conferred upon them by Section 236 of the Constitution, had become entitled to exercise jurisdiction in Admiralty, concurrent with the Federal High Court. Fortiori, to the extent to which Section 8(1) of the Federal High Court Act 1973 purports, after the coming into force of the 1979 Constitution, to oust the jurisdiction of the State High Courts from its admiralty jurisdiction, that section must be deemed to be inconsistent with the said Section 236 and therefore be deemed invalid and void. (See Section 1(3) of the Constitution.)

In the final result, I hold that the Federal High Court and the State High Courts now have concurrent jurisdiction in admiralty matters.

I abide by the orders as contained in the lead judgment of my learned brother, Coker, J.S.C.

Belgore, J.S.C.-I had a preview of the lead judgment just read by my learned brother, Coker, J.S.C. I agree that the appeal should be allowed. I also make the same orders as my learned brother in the lead judgment.

Kawu, J.S.C.-I have had a preview of the judgment just delivered by my learned brother, Coker, J.S.C. I agree entirely with his reasoning and conclusions. I also allow the appeal and I agree with all the consequential orders made by my brother, Coker, J.S.C. in the lead judgment.

Oputa, J.S.C.-I have had the privilege of a preview of the lead judgment just delivered by my learned brother Coker, J.S.C. and I am in complete agreement with him that this appeal should be allowed. I will however wish to add my own comments on two vital issues raised in and by the appeal namely:

(i) Whether or not the action of the Plaintiff was statute barred; and

(ii) Whether the Lagos State High Court had the requisite jurisdiction to entertain the action or whether it was an action within the exclusive jurisdiction of the Federal High Court.

These are two radical and fundamental issues, for, if there is no jurisdiction or if the action is statute barred, it does not matter how well conducted the proceedings might have been, the entire exercise would be to no avail.

I will start by looking at the Writ of Summons to find out exactly the nature of the claim before the trial Court. The Writ of Summons is at p. 6 of the record of proceedings:

"The Plaintiffs who are Bankers claim the sum of N1,285,313.00 being the value of rice as indicated in the Letter of Credit No. L8729 opened on behalf of the 2nd Defendants in favour of Senrenella Inc. Missouri, U.S.A. The 1st Defendants being the appointed clearing agent of the shipper of the rice also by custom and usage of their calling the agent of the Plaintiffs. The 1st Defendants released the 57,900 (50 kilos) bags of rice between November 1979 and March 1980 to the 2nd Defendants without the authority or consent of shipper and/or the Plaintiffs while the originating Bill of Lading, shipping document that were to be presented to the 1st Defendants before the claim were to be released to the 2nd Defendants were still in custody and possession of the Plaintiffs.

The Plaintiffs sustained loss of the sum of N1,285, 313.00 with interest at the rate of 11% per annum from the 11th day of November, 1979 until the whole amount is liquidated and costs both 1st and 2nd defendants who have failed or refused to pay the said sum in spite of repeated demands.

Alternatively

The Plaintiffs claim the sum of N1,285,313.00 damages and costs from the 1st Defendants for their negligence in parting with the 57,900 (50 kilos) bags of rice between November 1979 and March 1980, which the 1st Defendants were to keep in their custody and care until the originating shipping documents in the possession and custody of the Plaintiffs are presented to the 1st Defendants by the 2nd Defendants for the rice mentioned in the Letter of Credit No. L.8729 opened by the Plaintiffs on behalf of the 2nd Defendants in favour of Senrenella Enterprises Inc. Missouri, U.S.A.

Particulars of Damages

Special Damages: Amount of the Letter of Credit No. L.8729 N1,285,313.00. And Rate of interest at the rate of 11% per annum from the 11th day of November until the whole amount is liquidated with cost." (The Italics are mine to clarify and emphasise the nature of the Plaintiffs' claim and alleged date of release).

From the portions I purposely Italicized above it is clear that the Plaintiff's complaint is that they sustained a loss of N1,285,313.00, the value of the Letter of Credit No. L.8729 which they opened on behalf of the 2nd Defendants by the negligence of the 1st Defendants in releasing the 57,900 bags of rice covered by the said Letter of Credit No L.8729 to the 2nd Defendants without the 2nd Defendants presenting to the Original Bill of Lading and other relevant shipping documents. These documents were still in the possession of the Plaintiffs and these were the documents of title (the title deeds) to the 57,900 bags of rice.

Pleadings were ordered, filed and duly delivered. These pleadings will determine the issues in controversy between the parties and issues on which evidence in proof ought to be led. Johnson, J. (as he then was) considered the evidence led on both sides and found as follows:

1. The 1st Defendants did not sight the Bill of Lading and shipping documents tendered as EXS.2 to 2B before they delivered the consignment of 57,900 bags of rice covered by the Letter of Credit No. L.8729 to the 2nd Defendants.

2. The 1st Defendants were either negligent in so doing; or

3. They colluded with the 2nd Defendants to deprive the Plaintiffs of their special property in the 57,900 bags of rice.

4. That Article 111 Rule 6 of the Carriage of Goods by sea otherwise known as the Hagues Rules did not apply in this case since there was no loss or damage to the 57,900 bags of rice. In other words the Plaintiffs' action was not statute barred.

Following from and consequent on the above findings the trial Court then gave judgment for the Plaintiffs for the sum N1,285,313.00 they claimed with interest at 13% with effect from 11th November 1979 until the judgment debt and costs were fully paid.

The 1st Defendants being dissatisfied with the judgment of the Lagos High Court per Candido A. Johnson J. (as he then was) appealed to the Court of Appeal, Lagos Division on three original grounds of misdirection and on two additional grounds alleging that the Lagos High Court had no jurisdiction to entertain the case and that in any event the Plaintiffs' action was statute-barred. The Court of Appeal per Ademola, J.C.A. correctly identified the main issues in dispute, the real questions calling for answers and resolution, namely:

"i. Whether or not the action of the Plaintiffs was statute-barred by the provision of the Carriage of Goods Act Cap 29 Laws of the Federation of Nigeria by virtue of Article 3 Rule 6 of the Rules made under the Act.

ii. Whether having regard to the nature of the action, the High Court that has adjudicated in the case has jurisdiction in dealing with the matter relating to admiralty jurisdiction."

The Court below also considered a third issue-"Whether the action was maintainable by the respondent in its present form against the appellant." I will not bother with the third issue. After a careful, learned and exhaustive consideration of the two vital issue in the case, the Court of Appeal decided by a majority verdict that:

"1. the defence under Article 3 Rule 6 must succeed to make the action taken by the Respondent to be statute barred;

2. the High Court of Lagos State adjudicating on matters purely of admiralty jurisdiction as it did in the case before it lacks jurisdiction."

The Court below (per Ademola, J.C.A.) in its lead judgment then allowed the appeal of the 1st Defendants-Pan Atlantic Shipping Transport Agencies Ltd., and struck out the action of the Plaintiff/Bank-Savannah Bank Ltd-"for lack, of jurisdiction." Kutgi, J.C.A. concurred but Nnaemeka-Agu, J.C.A. dissented. The verdict of the Court of Appeal was not unanimous. No. It was a split decision. The Savannah Bank Ltd., Plaintiffs in the Court of first instance, have now appealed to the Supreme Court against the majority judgment of the court of Appeal on 4 grounds. Learned counsel for the Appellants formulated 4 Issues For Determination. The first issue dealt with Limitation and the fourth with Jurisdiction. These two issues are vital and substantial, the remaining issues are merely secondary and subsidiary. I will therefore limit my comments to the two important and vital issues.

Limitation

If a statute allows a certain period of time for bringing litigation or for commencing proceedings, it is known as a Statute of Limitation. That statute then expresses the policy of the State prescribing the period of time within which an action or proceeding in law or in equity must be brought. A plaintiff may have a cause of action but he loses the right to enforce that cause of action by judicial process because the period of time laid down by the limitation law for bringing such actions had elapsed. A limitation law does not operate in vacuo. No Secondly it is the defendant who ought to plead and prove that the action is statute-barred. This will surely lead to a consideration of the facts or combination of facts which gave the Plaintiff right to sue. This may be a wrongful act or a wrongful act with a consequential damage to the Plaintiff. Time will start to run when the cause of action arose. It is therefore absolutely necessary when dealing with limitation statutes to determine the precise date upon which the cause of action arose. Without this basic fact it will be impossible to compute the time. Thirdly since the defendant is the party relying on the "defence of limitation" the onus is on him to establish when the cause of action accrued to the Plaintiff. It is not enough to plead a particular date for if that date is not admitted by any reply of the Plaintiff to the Defendant's Statement of Defence, then there is nothing on which the necessary computation can be made. Fourthly it is not permissible and it would be wrong for a Court to compute time from a date pleaded in the Statement of Defence, not admitted in the Reply and not proved by credible evidence.

I will now apply the above principles to the pleadings and to the facts of the case now on appeal. The 1st Defendants-the Respondents in this Court-pleaded thus in paragraph 14 of their Amended Statement of Defence:

"14. The delivery of the rice consignment having been made between the 11th and 27th of January 1979 the 1st Defendant will contend at the trial that the Writ of Summons herein having been issued on the 3rd of December, 1980 about 2 years after the delivery, the 1st Defendant by virtue of Article 111 Rule 6 of the Hague Rules is under no liability to the Plaintiff" (Italics are mine).

The relevant portion of the Hague Rules pleaded in paragraph 14 above states:

"6 ...In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered..." (Italics are mine).

Under Article 111 Rule 6 of Cap 29 of 1958 above, the suit, if the Hague Rules apply should be brought within one year after the delivery of the goods. Time therefore start to run from the date of delivery. From the facts of this case the Plaintiffs did not know when the 1st Defendants released the goods (57,900 bags of rice) to the 2nd Defendants. This being a matter peculiarly within the knowledge of the 1st Defendants the onus was again on them not only to plead but also to prove the precise date or dates of delivery. If however the Plaintiffs in their Reply to the Amended Statement of Defence admitted the date of delivery pleaded in paragraph 14 of the Amended Statement of Defence then the 1st Defendants will be relieved of the burden of proving the exact date or dates of delivery. The Reply of the Plaintiffs to the 1st Defendants' Amended Statement of Defence is copied at pages 71 to 74 of the record of proceedings. In no paragraph of the Reply did the Plaintiffs admit paragraph 14 of the rice to the 2nd Defendants thus became an issue, and a very vital issue, with regard to the defence of limitation of action. This issue had to be proved by evidence by the 1st Defendants. It was not so proved.

As if to further confound the situation for the 1st Defendants, the Plaintiffs in their Amended Statement of Claim (p.73 of the records) pleaded in paragraph 8 thus:

"8. The 1st Defendant without sighting the original shipping documents still in possession and custody of the Plaintiffs parted with the 57,900 (50kilos) bags of rice between November, 1979 and March 1980 and thereby caused to the Plaintiffs."

The issue calling for resolution was thus:

Was the delivery of the consignment of rice to the 2nd Defendants made between November the 11th and 27th of January 1979 as the 1st Defendants contended or between November 1979 and January 1980 as the Plaintiffs pleaded?

The issue had to be resolved before any Court can apply Article 111 Rule 65 of cap 29 of 1958. It was not resolved by an credible evidence, as no evidence at all, let alone credible evidence was led. And that is the danger inherent in parties agreeing to fight their cases on documents alone without adducing evidence in proof of some subtle issue of fact that can only be resolved by oral testimony.

How did the Court of Appeal deal with and resolve the issue of limitation of action put forward by the 1st Defendants/Respondents? At p.107 of the records the Court below held:

"I am of the view, having regard to the time of the loss i.e. between 11th-27th of January 1979 as pleaded in paragraph 14 of the amended Statement of Defence that the issuance of the Writ on the 3rd December, 1980 is clearly outside the period of one year during which the action is to be brought."

With the greatest respect, the Court of Appeal was definitely wrong in its view as expressed above. Firstly cases are decided on the evidence before the Court and not on the pleadings, unless there were no issues in dispute between the parties. Secondly it was wrong of the Court below to pick one period of time, 11th-27th January, 1979. pleaded in paragraph 14 of the Amended Statement of Defence and totally ignore another period of time-between November, 1979 and March 1980-pleaded in paragraph 8 of the Amended Statement of Claim. If the Court below adverted to paragraph 8 of the Amended Statement of Claim, it should have been quite obvious to it that the issue of the computation of time for limitation of action could not have been, and were not settled on the pleadings. Since the onus was on the 1st Defendants/Respondents to prove that the Plaintiffs' action was statute-barred by the Hague Rules, the Court below would have held that the 1st Defendants failed to establish their defence of limitation based on the allegation that the Plaintiffs' action was statute-barred will therefore be: Assuming but not hereby deciding at this stage that the Hague Rules-Article 111 Rule 6 of Cap 29 of 1958-apply, the 1st Defendants failed to establish the actual dates of delivery of the consignment of 57,900 (50 kilos) bags of rice to the 2nd Defendants and as such there was no factual foundation for the application of limitation of action envisaged by those Rules.

It is only if and when it is established that the Plaintiffs filed their present action not within but outside the period of "one year after the delivery of the goods" that the issue of what amounts to "loss or damage" as envisaged and contemplated by the Hague Rules need be considered. The Court of Appeal in its majority judgment considered what amounted to "loss" or damage and cited several authorities namely:

i. Anglo Saxon Petroleum Company Limited v. Adamastos Shipping Company Limited (1952) 2 Q.B.D. 233 at p.253 per Devlin, J.

ii. G .H. Renton & Co. Ltd. v. Palmyra Trading C. Ltd. of Panama (1957) A.C. 149 at p.169 and p.173.

iii. Goulanders Brothers Ltd. v. B. Gouldman & Sons Ltd. (1958) 1.Q.B. 74 at p.105 and compania Colombiana de Seguro v. Pacific Steam Navigation Company (1965) 1 Q.B. 101 at pp. 125/126.

This is a good academic exercise which does not advance this case even one inch further.

Even if what happened to the 57,900 (50 kilos) bags of rice-that is their release by the 1st defendants to the 2nd Defendants can properly be described as "loss" or damage, yet still the limitation of action imposed by Article 111 Rule 6 of Cap 29 of 1958 will not apply to "discharge" the 1st Defendant/Company "from all liability" if the present action was brought "within one year after the delivery" of the bags of rice. The Writ of Summons at p.6 of the record of proceedings gave the dates of release to the 2nd Defendant/Company as between November 1979 and March 1980. Also paragraph 8 of the Amended Statement of Claim at p.73 of the record repeated the same dates-between November, 1979 and March 1980. If these were correct dates then obviously the plaintiffs' action taken out on 3rd December 1980 was taken within the one year period allowed. In other words such as action cannot be said to be statute-barred by the Hague Rules. Thus the majority judgment of the Court of Appeal having not adverted to the failure of the 1st Defendant to establish by credible evidence the actual dates of the release of the bags of rice to the 2nd Defendants was very wrong in holding that the action of the Plaintiffs was statute-barred by Article 111 Rule 6 of Cap 29 of 1958. I will not proceed on the unnecessary luxury of considering all the subsidiary issue raised in the Brief of learned Counsel on both sides either on the application of the Hague Rules or limitation under Section 7 of the Limitation Act No.88 of 1966. I am satisfied that the 1st Defendants/Respondents failed to establish by evidence when the Plaintiffs' cause of action accrued and that the majority judgment of the Court of Appeal was therefore wrong in allowing the 1st Defendants' appeal based on the contention that the action of the Plaintiff/Company was "Statute-barred by reason of the provisions of the rule in Article 3 Rule 6 of the Carriage of Goods by Seas Act Cap 29."

The Issue of the Jurisdiction of the Lagos High Court

Having disposed of the issue of limitation of action in favour of the Plaintiffs/Appellants, they still have one more turbulent and stormy river to cross. Had the Lagos State High Court the jurisdiction to entertain this case? Before this question can be properly answered it is necessary to have a clear idea of the dispute between the parties, the controversy that the Plaintiffs asked the Lagos State High Court to adjudicate upon. Without a clear and proper identification of that lis it may not be easy or even possible to correctly identify the forum competence. It is to this end that I, on purpose set out fully the claim of the Plaintiffs in their Writ of Summons. That claim as far it related to the 2nd Defendants was essentially based on the Letter of Credit No.L-8729 tendered as Ex.1. Certain terms and conditions of Ex.1 are revealing and they do disclose the factual situation that led to the present dispute. I will produce Conditions 2 and 6 of EX.1:

"2. All goods and Bills of Lading, Warrants, delivery Orders, Documents of title and Securities whatsoever which have been or shall hereafter be delivered into the possession of the Bank or its agent as a result of opening or in connection with any transaction under this credit are and shall be pledged to the Bank as security for all payments made or which may be made by the Bank or its agent under this credit together with interest, commission and other customary charges and the Bank shall have full discretion and power of sale over the said goods without notice to the customer.

6. The customer undertakes to provide the Bank at or before maturity with funds to meet all disbursements and acceptances together with commission, interest charges etc."

In this case the Plaintiff/Bank financed the purchase of the 57,900 bags of rice covered by the letter of credit. Ex.1. The Plaintiff/Bank paid a total of N1, 285,313.00 and received the documents of title EX.2 to EX.2B as security. The 2nd Defendant/Company who in Condition 6 of EX.1 undertook to "provide funds to meet the disbursements" of the Plaintiff/Bank made in respect of the credit EX.1 was to come and pay all outstanding bills, receive the documents of title EXS.2 to 2B and with these claim the consignment of rice from the 1st Defendant/Company. The Plaintiffs' quarrel is that the 1st Defendants either in collusion with the 2nd Defendants or negligently released the 57,900 bags of rice to the 2nd Defendants without EX.2 to 2B which were still in the possession of the Plaintiff/Bank. By this "fraud" or "negligence" the Plaintiffs suffered considerable damage. It is thus apparent that vis-a-vis the 2nd Defendants, the controversy, the lis centred around the Letter of Credit, EX. 1.The trial Court was right in finding against the 2nd Defendants who did not even enter an appearance having quickly collected 57,900 bags of rice.

Now what is the plaintiffs' case against the 1st Defendants? It is this that the Plaintiffs are the holders of the Bill of Lading covering the consignment of 57,900 bags of rice, that under normal circumstances there would be no delivery to the 2nd Defendants without the 1st Defendants sighting the Bill of Lading EX.2, that by negligently delivering the rice to the 2nd Defendants, the 1st Defendants seriously interfered with the Plaintiffs' right of property in the consignment of 57,900 bags of rice a right conferred on them by the Bill of Lading EX.2. As the Letter of Credit EX.1 was the link between the Plaintiffs and the 2nd Defendants so also the Bill of Lading was the only nexus between the Plaintiffs and the 1st Defendants. There was no privity of contract between the Plaintiffs and the 1st Defendants in the Letter of Credit EX..1, and if the Plaintiffs are suing in tort, as they undoubtedly were, the only document that gave them proprietary right and title to the rice consignment was the Bill of Lading, Ex.2 The Bill of Lading was the basis of the Plaintiffs' action even in the tort of negligence. With respect, I disagree with the conclusion of Nnaemeka-Agu, J.C.A. in his dissenting judgment that the plaintiffs' action was founded on the Letter of Credit, EX.1. No, it was not and it could not be so founded. It was founded on the Bill of Lading. This will then bring in the provision of the Carriage of Goods by Sea Act, Cap 29 of 1958 and the Hague Rules. I will now emphatically say that the Hague Rules apply to this case. But from my observations earlier on this will not affect my decision on the issue of Limitation of Action.

Now having held that the present action of the Plaintiffs/Appellants was an action based on the Bill of Lading, EX.2 it follows that it was an action within the Admiralty jurisdiction of the courts. The question now arises-Will the Lagos State High Court be the forum competence for such an action? There is no doubt that Section 7 (1) (d) of the Federal Revenue Court (now Federal High Court) Act No. 13 of 1973 gave the Federal High Court jurisdiction over Admiralty matters. Did the Lagos State High Court in 1980 when the Plaintiffs' Writ was filed have any jurisdiction over admiralty matters?

Chief Sowemimo submitted that the Lagos State High Court lacked jurisdiction because of the provisions of section 230 (2) of the 1979 Constitution. Secondly he submitted that the negligence complained of in this case was based on the Bill of Lading. It was therefore negligence not based on the English Common Law but one based on the Law Merchant. He cited many cases to support his contention that the case came squarely under the Admiralty jurisdiction of the Courts. Which Court then was the forum competence? His answer was-the Federal High Court to the exclusion of the Lagos State High Court.

It is here that Section 8 of Act No.13 of 1973 comes in for very critical examination. That section made the jurisdiction of the Federal High Court in relation to matters set out in Section 7 (S.7 (d) conferred admiralty jurisdiction on the Federal Revenue Court exclusive to the Federal High Court and specifically excluded any other Court of a State. I am persuaded by the argument of M. Ajaya, SAN, learned Counsel for the Appellants, that Section 8 of Act No.13 of 1973 in so far as it attempts to curtail or limit the jurisdiction of the State High Court made unlimited by Section 236 of the 1979 Constitution is inconsistent with that section (s.236) and unconstitutional and therefore void to the extent of the apparent inconsistency. Also jurisdiction is a very serious matter and should be conferred or removed by express words. In my view Section 230 (2) of the 1979 Constitution did not confer any additional jurisdiction on the erstwhile Federal Revenue Court. It only restyled it "Federal High Court ." Also S.230 (2) does not constitute any express removal of the jurisdiction conferred on State High Courts by S.236 of the same 1979 constitution. The frames of the 1979 constitution will be presumed to have had the provisions of S.230 (2) in mind when they made the jurisdiction of the State High Court unlimited in Section 236. If therefore there is any conflict between Section 230 (2) and Section 236 obviously section 236 will prevail.

This Court had in Bronik Motors Ltd. & anor v. Wema Bank Ltd. (1983) 1 S.C.N.L.R. 296 examined in some great details the judicial powers and jurisdiction of both the Federal High Court and the State High Court and held following the majority decision in Jammal Steel Structures Ltd. v. African Continental Bank Ltd. (1973) 1 All N.L.R. (Part 11) 208 that the jurisdiction under Section 7 (1)(b) (iii) of the Federal Revenue Court Act 1973 was restricted to causes or matters connected with or pertaining to the revenue of the Federal Government and not to claims by a Banker against its customer for transaction in the normal course of banking business. It also considered the extend and limit of the jurisdiction which the 1979 Constitution and other relevant existing laws conferred on the State High Court and the Federal High Court respectively and come to the conclusion that:-

"i. Under Section 236 of the Constitution the jurisdiction of the State High Court is unlimited.

ii. It is the Federal High Court that has "Limited Jurisdiction", limited in the sense that it has only so much of the jurisdiction conferred expressly by Existing Laws....and also under specific sections of the 1979 Constitution (i.e. expressly prescribed there under)...as well as such other jurisdiction as may be conferred on it by future enactments of the National Assembly under Section 230 of the 1979 Constitution."

The above constitutes part of the decision of this Court in Bronik's case supra.

In this appeal, this Court has not been asked to overrule its decision in Bronik Motors Ltd. v. Wema Bank Ltd. That being so the resultant effect of that decision is that in admiralty matters (which formed the basis of the Courts' incisive analysis and comparison) the former jurisdiction of the State High Court in admiralty matters has been revived by the 1979 Constitution while the Federal High Court will continue to exercise the jurisdiction conferred on it by section 7 (1) (d) of the Federal Revenue Court Act, (Act No.13 of 1973), that is "Admiralty jurisdiction." Both Courts therefore have concurrent jurisdiction as such, so that any views and comments expressed by this Court on the "Admiralty jurisdiction" of the Federal High Court and the States' High Court were merely obiter dicta. That may well be but they were forceful and formidable obiter dicta which cannot be lost sight of whenever the issue comes up again for decision. Now, in this appeal, the constitutionality or otherwise of Section 8 of the Federal Revenue Court Act 1973 is clearly and squarely in issue. On that issue I hold, upholding and adopting in their entirety the arguments and conclusions of this Court in Bronik's case supra that Section 8 of Act No. 13 of 1973 is unconstitutional of all the reasons given earlier on in this judgment.

Mr Ajayi, SAN, learned Counsel for the Appellants both in his Brief and oral argument in Court effectively attacked the decision of this Court in American International Insurance Co. Ltd. v. Ceekay Traders Ltd.(1981) 5 S.C.81 at p.105 that

"...the combined effect of Section 7 (1) (d), 8(1), 24 and 63(4) of the Federal High Court Act of 1973 is clearly to oust the jurisdiction of the High Court (States) in admiralty causes."

He submitted that if Section 8 of the Federal High Court Act 1973 is held to be void for inconsistency with S.236 of the 1979 Constitution then the decision in Ceekay's case supra is no longer good law. I agree. The exclusion of the former admiralty jurisdiction of State High Courts was a result of the effect of Section 8 of Decree No. 13 of 1973. Also Ceekay's case supra was based on the provisions of the same S.8(1) of Act No. 13 of 1973. If that same Section 8 (1) is now declared inconsistent with Section 236 of the 1979 Constitution and void then Ceekay's case has no more any legs on which to stand. It is therefore bound to fall. It is no longer good law.

In the final result, I hold that:

1. On the question of Limitation of Action the Hague Rules apply and that the one year period prescribed under those Rules for the 1st Defendants to be "discharged from all liability" will not only be pleaded but also be proved by credible evidence. The majority decision of the Court below was erroneous in so far as it based the computation of time on the Amended Statement of Defence of the 1st Defendants/Respondents ignoring in its entirety the period (which was within the Rules) pleaded in the Plaintiffs/Appellants' Amended Statement of Claim. The Plaintiffs/Appellants' action was therefore not proved to be statute-barred.

2. On the question of Lack or Want of jurisdiction I hold that the Lagos State High Court by virtue of the 1979 Constitution and this Court's decision in Bronik Motors Ltd. v. Wema Bank Ltd. supra has concurrent jurisdiction with the Federal High Court over Admiralty matters. The Lagos High Court was therefore properly seized of jurisdiction to hear and determine the Plaintiffs' claim. The majority judgment of the Court of Appeal was therefore in error when it held the Lagos State High Court lacked jurisdiction to entertain the Plaintiffs' case.

For all the reasons given above and for the fuller reasons in the lead judgment of my learned brother Coker, J.S.C. with which I am in complete agreement and which I now adopt as mine, I will allow this appeal. I will also abide by all the consequential orders made in the lead judgment.

Nigeria LII

Contact Us

Contact Us WebForm