In The Court of Appeal

(Lagos Judicial Division)

On Monday, the 30th day of November, 1998

Suit No: CA/L/81/96

Before Their Lordships

 Between

 And

M. O. ONALAJA J.C.A (Delivering the Leading judgment): The Plaintiff now Appellant claimed by his particulars of claim in the Federal High Court Lagos against the Defendant referred to in this judgment on appeal as the 1st Respondent as follows:-

THE PLAINTIFF'S CLAIM

"against the Defendant is for the sum of N75,900.00 (Seventy-five thousand Nine hundred Naira) being cost of one TOYOTA LITEACE BUS consigned to the Defendant for carriage to LAGOS as per BILL OF LADING NO.166 EX REPUBLICA DI GENOVA dated 21/11/89 and which Vessel landed at LAGOS on 6/12/89 without the said CARGO.

AND despite repeated demands the Defendant as the agent to the SHIP OWNERS has neglected or refused to deliver the said cargo or pay for same in lieu thereof.

The Plaintiff also claims interest on the said sum of N75,900.00 at 26% from 6/12/89 until payment or judgment."

After service on Defendant/1st Respondent the appellant filed his statement of claim part of the pungent paragraphs are set down as follows-

1. The plaintiff is a Forwarding and Clearing Agent and is residing at 21 ADEKITAN STREET, MUSHIN, LAGOS STATE. 

2. The Defendant is a registered company in Nigeria with its registered office at 4 CREEK ROAD, APAPA.

3. The Defendant is also the Agent in Nigeria to the owners of the vessel REPUBLICA DI GENOVA.

5. That the said Liteace Bus was consigned to the Plaintiff as per Bill of Lading No.166 of 21st November, 1989 on board the Vessel Republica di Genova.

6. That the Defendant as the Agent to the ship owners notified the plaintiff of the expected arrival: of the vessel Republica di Genova and in consequence of which the plaintiff prepared the necessary custom documents to clear the goods in advance.

7. That on the 6th of December, 1989 the vessel Republica di Genova duly arrived but without the Bus Toyota Liteace consigned to the plaintiff.

8. That the said vessel Republica di Genova was on straight voyage from Antwerp to Lagos without any intermediate stop before Lagos.

9. That non arrival of the Bus was immediately reported to the Defendant and the ships Landing Sheet was thoroughly examined and it was clearly shown that the bus was not off loaded. 

15. Whereof the Plaintiff claims against the Defendant the value of the Bus which is 118,000.00 Belgium France or $5,600.00 and the freight charges of $500.00. 

16. The Plaintiff also claim 50% of the cost of the Bus being duty now payable in Nigeria since the concession then in existence when the Bus was shipped had been withdrawn.

17. The Plaintiff also claim interest on the said sum with interest at 26% from 6/12/89 until payment or judgment."

In the course of the proceedings Plaintiff/Appellant sought the joinder of the Owners of MV "REPUBLICA DI GENOVA" as 2nd Defendant and to effect service on the owners by substituted service through the 1st Defendant the agent in Nigeria of the owner of MV Republica di Genova. The two prayers after consideration were granted by the Federal High Court in Lagos. The Defendant/1st Respondent is now referred to as 1st Defendant/1st Respondent, whilst the said owners after the joinher is referred to in this judgment as 2nd Defendant/2nd Respondent.

By motion on notice 2nd Defendant/2nd Respondent without filing a statement of defence sought and was granted an order dismissing the action against it so far as it related to it on the grounds that Appellant's cause of action was statute barred based on the Hague Rules of 1924 incorporated into the Bill of Lading on which the Appellant based his claim and or based on the CARRIAGE OF GOODS BY SEA ACT 1958 LAWS OF NIGERIA.  

In the considered ruling after careful consideration of the arguments of the counsel to the parties and the applicable law and rules of court as against the 1st Respondent the, learned judge in his ruling held that:-

"At the conclusion of legal submission I dismissed in limine the suit as against the 1st Defendant on the ground that on the showing of the Plaintiff both in the particulars of claim and in paragraphs 3 and 6 of the statement of claim the plaintiff has sued the 1st Defendant as the agent of a known and disclosed principal therefore on the elementary principle of law of agency and as established in numerous judicial decisions at the Supreme Court and the Court of Appeal the agent incurred no liability in such circumstances either in contract or in tort. I therefore dismissed the claim against the 1st Defendant being nor a proper party to the suit.

With regard to the 2nd Defendant's application that the suit is statute barred as against it therefore the cause of action has been extinguished. I am in complete agreement with that submission because as ADEMOLA JCA stated at pages 512-515 of ODUOLA & ORS. v. OGUNJOBI (1986) 2 NWLR pt.503 at 512-513 supra the important point is the time the applicants are coming into the suit and not the time the writ was issued. An application for joinder was made to join the 2nd defendant on 20/12/90 and the order was not made for joinder until 9/5/91. Therefore the time this suit was commenced against the 2nd, defendant is (sic) 9/5/91. The cause of action arose according to the averments in the statement of claim on 6/12/89 under the provisions of Article 3 rule 6 of the CARRIAGE OF GOODS BY SEA ACT 1924, this action ought to have been commenced within a period of 12 months from 6/12/89. I therefore agree that the action is statute barred as against the 2nd Defendant...

The Plaintiff has shown in paragraph 7 of the statement of claim that the cause of action arose on 6/12/89 (supra).

The 2nd Defendant was brought into the case on 9/5/91 more than twelve months after the cause of action accrued.. In the circumstances this suit is statute barred. It is accordingly hereby dismissed with N200.00 in favour of the 2nd Defendant. (sgd. ) G. A. A. T. JINADU, Judge,. 13/12/91. "

Being dissatisfied with the said ruling Appellant lodged an appeal to this court through his notice of appeal wherein he formulated two grounds of appeal as under:-

"3 GROUNDS OF APPEAL

(1) The learned trial Judge erred in law in holding that the claim is statute barred against the 2nd Defendant as at 9/5/91 when the order joining the 2nd Defendant was made, whereas the substantive claim was filed within time and the statement of claim already filed clearly shows that the vessel REPUBLICA DI GENOVA for non delivery of the Toyota - Liteace Bus.

(2) That the learned trial Judge erred in law in dismissing the Plaintiff's claim against the 2nd Defendant on technicalities when the justice of the case demands trial on the merit.

PARTICULARS OF ERRORS

(i) That the application to join the 2nd Defendant was dated 20/12/90 just 14 days outside the time limit.

(ii) That the goods carried by the 2nd Defendant was not delivered and no compensation was offered for the non delivery.

(iii) That the 2nd Defendant was aware of the proceedings duly begun within time through its agent." 

In accordance with the rules of this court about brief writing appellant formulated the under mentioned issues as the issues for determination in this appeal:

"The only issues for determination is whether the action was statute barred when the Defendant was joined on 9/5/91."

On its own part 2nd Respondent adopted the singular issue formulated by the appellant but proceeded further to formulate one other issue to wit:-

" When was the action deemed to have been commenced against the 2nd Respondents herein in law." 

That though appellant raised two grounds of appeal having raised an only issue without correlating it with the second ground of appeal be deemed to have been abandoned by operation of law. There is much force in this contention therefore for the purposes of this appeal as no issue was raised or based on the second ground of appeal it is treated as abandoned in this appeal.

After a careful consideration of the issues distilled by the parties the issue formulated by the appellant is the crux or germane for determination in this appeal and is adopted in the determination of this appeal.

Upon the appeal coming up for argument the learned counsel for the Appellant relied and adopted appellant's brief filed in this court on 19th November, 1997.

In argument appellant submitted that the action was commenced within time against the 1st Respondent on 18/5/90 though as pleaded in paragraph 3 of the statement of claim supra as agent to the OWNERS of the vessel. The claim therefore was against the 2nd Respondent though it was not specifically mentioned as such this amount to non joinder. The situation did not preclude the appellant from joining the 2nd Respondent as relied upon in the case of KALU v. ODILI (1992) 5 NWLR pt.240 at page 185 wherein KARIBI-WHYTE JSC said:-

"It is well settled and the practice in all our courts that where an action has not been properly constituted whether as regards joinder of the causes of action or as to parties, it has always been procedurally beneficial to raise objections to the defect in the action before or at the hearing of the action. The view of the court is that non compliance with any rules of court or with any rule of practice for the time being in force does not generally render the proceedings void."

The order joining 2nd Respondent was properly made not withstanding the date the order was made. 

It was the 1st Respondent as the agent to the 2nd Respondent (the ship owners of the vessel) that first alerted the appellant of the date of arrival of the cargo and its loss by non delivery in Lagos Nigeria. The loss was promptly made to the 1st Respondent therefore the notice to 1st Respondent was notice to the 2nd Respondent in line with the doctrine of agency by estoppel as stated in INCAR NIGERIA PLC & ANOR. v. BOLEX ENTERPRISES NIG. LTD. (1996) 6 NWLR pt.454 page 318 at 356 as stated thus:-

"where any person by words or conduct represents or permits it to be represented that another person is his agent, he will not be permitted to deny the agency with respect to anyone dealing on the faith of such representation with the person so held as agent."

The INCAR MOTORS NIGERA PLC & ANOR. supra is distinguishable from this appeal as it is common ground that 1st Respondent was an agent of the 2nd Respondent. Having disclosed its principal in INCAR MOTORS supra it was the disclosed principal of the agent that was sued whilst the agent was called as a witness, the agent was not made a party, unlike the present appeal where by the averment of the appellant in his statement of claim paragraph 3, 1st Respondent was sued as an agent to a disclosed principal this step is contrary to the law and rule of agency that once an agent disclosed its principal, it is the disclosed principal that in law must be made a party.

The procedural law under the rules of the High Court that an action shall not be defeated by reason of misjoinder or non joinder of parties as the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it as provided in ORDER 14 Rule 19 HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) LAW CAP 61 LAWS OF LAGOS STATE 1994 and or ORDER 5 rule 1 and 2 FEDERAL HIGH COURT CIVIL PROCEDURE RULES CAP 134 LAWS OF THE FEDERAL REPUBLIC OF NIGERIA 1990 J. F. OLADEINDE & ANOTHER v. I. O. ODUWOLE (1962) WNLR 41

At page 5 of the ruling of JINADU J now on appeal he concluded as follows:-

"At the conclusion of legal submissions I dismissed in limine the suit against 1st Defendant ...  I therefore dismissed the claim against the 1st defendant being not a proper party to the suit."

His reasoning is impeccable and good law no wonder there was no appeal against this decision. See WEST AFRICAN SHIPPING AGENCY & ANOR. v. KALLA (1978) NSCC page 114 wherein it was held (4) That

" A party to a contract can elect  to look either to the principal or agent but once he unequivocally makes an election to sue, one, the other is released from liability."

The Appellant having elected unequivocally to sue that 1st Respondent the agent of 2nd Respondent the latter was rightly released from liability by the lower court.

Appellant contended that the learned trial Judge was wrong to hold that the action was commenced against 2nd Respondent on 9/5/92 when the order of joinder was made. This was contrary to the decision of ODUOLA v. OGUNJOBI (1986) 2 NWLR pt.22, page 508

where the order to join was made after the expiration of the statutory period. The present case is distinguishable from ODUOLA'S case as the name of the 2nd Respondent had already appeared on the writ of summons and the statement of claim. This was not borne out from the facts. The reference to 2nd Respondent in the pleadings was that it was disclosed principal to 1st Respondent. 

That the court should do substantial justice between the parties and not rely on technicalities reliance was based on CHIEF GBOGBOLOLU OF VAKPO AFEYI v. HEAD CHIEF HODO (1941) 7 WACA 164 at page 165 wherein it was declared that:-

" It is the duty of courts to aim at doing substantial justice between the parties and not let that aim be turned aside by technicalities." 

In conclusion of appellant's brief at page 2 he concluded as follows:

"CONCLUSION

(a) Action was commenced within time howbeit defective

(b) The defect was cured by an order of court duly obtained.

(c) Statute of limitation requires proceedings to be commenced within specified time only not that mistakes cannot be made or subsequently corrected. 

(d) Notice to an agent is notice to the principal.

(e) Effort has been made to correct injustice done, court should allow the process to be concluded.

(The underlining is mine). 

In the circumstances the appeal be allowed.

In his oral submission Chief Robert Clarke though led by learned counsel A. A. ODUNSI argued the appeal for the appellant notwithstanding that it was the learned counsel ODUNSI who settled the brief in this case.

Learned counsel for the appellant in argument contended relying heavily on KAYCE NIG. LTD. v. PROMPT SHIPPING & ANOR. (1986) pt.1 Vil.17 NSCC page 152 in particular at pages 160-161 and the provision of ARTICLE III sub 6 of CARRIAGE OF GOODS BY SEA ACT CAP 44 LAWS OF THE FEDERATION OF NIGERIA 1990, the Supreme Court judgment supports his contention that the action was brought against the 2nd Respondent within the statutory period  having commenced same within the statutory period against the 1st Respondent. 

This court should rule in favour of the appellant by allowing the appeal.

The learned counsel for the 2nd Respondent relied on 2nd Respondent's brief filed on 24th November, 1997. In the said brief he agreed that the action against 1st Respondent was timeously filed but averred in the statement of claim of 1st Respondent. The 2nd Respondent was pleaded as the disclosed principal of 1st Respondent, in law no action was maintainable against an agent of a disclosed principal. Having discovered the futility of the action against 1st Respondent, appellant sought and was granted leave to join the 2nd Respondent, which order was granted on 9th May, 1991 which was more than the one year for the institution of action for the loss or damage to the cargo as stipulated under ARTICLE III (6) CARRIAGE OF GOODS BY SEA ACT CAP 44 LAWS OF THE FEDERATION OF NIGERIA 1990. The cause of action for the loss and damage accrued on 6th December 1989 when there was no discharge of the cargo as it was not off loaded from the vessel on that day. The joinder of the 2nd Respondent on 9th May 1991 was outside the statutory period thereby was time barred or statute barred. The attitude of the court is that the cause of action wherein a party is a joinder to the action accrues from the day the order for joinder is granted in the instant appeal 9th May 1991 which by virtue of Article III rule 6 was more than a year from the date the action arose on 6th December, 1989. It is also the attitude of the court not to deprive a party the vested right of the statute of limitation so decided the Court of Appeal is ODUOLAA & ORS. v. OGUNJOBI & ORS. (1986) 2 NWLR pt. 23 Page 508 at 509 ..."

In determining when 2nd Respondent became party to the proceedings at the lower court two legal theories would have to be considered by the court namely:-

(a) "THE RELATION BACK THEORY" and

(b) "THE NO USEFUL PURPOSE THEORY"

THE RELATION PURPOSE THEORY is meant that the date of the joinder would date back to the date from the substantive action was commenced in court whilst the NO USEFUL PURPOSE theory means that no useful purpose would be served by relating the date of the joinder to the date of commencement of the substantive action. 

Where the joinder relates to either additional parties and or new causes of action learned counsel for the 2nd Respondent submits that the court should accept the no useful purpose theory which has been held to be more acceptable by courts all over the world especially where the new cause of action is barred in law and or time had elapsed within which the action may be commenced against the new party or parties. Where the party or the new cause of action has already been added, the courts would readily strike out the party joined as was rightly done in this case by the lower court which has led to this appeal. 

Learned counsel for the 2nd Respondent relied on the case of MARBRO VEAGLE STAR INSURANCE COMPANY 1932 ALL ER REPRINT page 411 at 412-413 as follows:-

"Per SCRUTTON LJ:- In my experience, the courts have always refused to allow a party or a cause of action to be added where if it were allowed, the defence of the statute of limitation would be defeated. The court has never treated it as just to deprive a Defendant of a legal defence. If the facts show either that the particular plaintiff or the new cause sought to be added are barred, I am unable to understand how it is possible for the court to disregard the statute. It has been suggested that we might allow the joinder without prejudice to any defence against the claim, but I cannot see why, where the defence is clear and aries under the statute of Limitations, the parties should be put to the expense of allowing an action to proceed which is barred in law. 

GREER LJ It has been the accepted practice for a long time that amendments which would deprive a party of a vested right ought not to be allowed." 

2nd Respondent submitted further as to crucial issue as to the time when the cause of action against the joinder of a party by amendment commences and relied on the case of LIFE v. PEASLEY (1980) 1 ALL ER 623 at 640-643 wherein BRANDON LJ observed as follows:-

"The crucial question here is this: when the original writ in an action is amended by adding a person as defendant, on what date is the action deemed to have been begun for the purpose of any relevant statute of limitation, as against the person added? Is it the date of the original writ or is it the date of the amendment. There is in my view, a high degree of artificiality and unreality about the "RELATION BACK THEORY'.' There is no reason to quarrel with the general proposition that an amendment of a WRIT or a pleading relates back to the original date of the document amended ..... This seems to me to be an entirely sensible proposition so long as the amendment concerned does not involve the addition of a new party either as plaintiff or defendant ... . where however, the amendment concerned involves the  addition of a new party or the raising of a new cause of action, it appears to me to be unrealistic and contrary to common sense of the matter to treat it as relating back in the same way...

I should in that event not merely have expressed the provisional view, but held as a matter of decision that, the addition of MR S as a defendant did not relate back to the date of the original writ, but took effect only from the date of the amendment so that the defence that the claim was statute - barred remained avaliable to him.

Nearer home in Nigeria this court of appeal held in ASHIMIYU ODUOLA & OTHERS v. CHIEF A. B. OGUNJOBI & OTHERS (1986) 2 NWLR  pt.23 page 508 at 509 as follows:-

"(i) The court has always refused to allow a party or a cause of action to be added where, if it were allowed, the defence of the Statute of Limitations would be defeated. The court has never treated it as just to deprive a defendant of a legal defence. If the facts show either that the particular plaintiff or the new cause of action sought to be added are barred, it is impossible for the court to disregard the statute.

(2) A writ of summons which has lapsed should not be renewed or could not be renewed if it would prejudice any right of defence that a respondent or person would have under the Limitation Law.

(3) That parties joined became parties on the day they were joined by the Judge not back to the date the writ of the action of the application for joinder was filed.

(4) Amendments which would deprive a party of a VESTED RIGHT ought not be allowed. 

(5) By the joinder the appellants would be deprived of a vested right."

From the facts applying the above cases when 2nd Respondent was joined on 9/5/91 a period more than a year from 6/12/89 the court should accept the no useful purpose theory and dismiss this appeal as the lower court did that it is lacking in substance and devoid of any merit being contrary to the provisions of Article III rule 6 SCHEDULE TO CARRIAGE OF GOODS BY SEA ACT supra. 

In conclusion the Court of Appeal should dismiss this appeal following the issues and contentions of the 2nd Respondent being meritorious both in law and in fact.

In reply to the submission of the 2nd Respondent that in the peculiar circumstances and facts of this case to do substantial justice, court has no alternative than to accept the relation back theory as the Bus the res in dispute was never delivered to the appellant.

The above is a resume of the facts, the law, the contentions and submissions of the parties in this appeal. Based upon the above the appeal is going to be decided succinctly whether the learned Judge was right in his ruling when he dismissed the action against the 2nd Respondent that as at when it was joined on 9th May 19S1 was a period more than twelve months after the cause of action accrued under the law to claim for the loss or damage to the appellant for non delivery of his TOYOTA LITEACE BUS purchased in Brussels and consigned to the appellant through shipment by the vessel REPUBLICA DI GENOVA as covered per Bill of Lading No. 166 of 21st November, 1989.

The 1st Respondent as the agent of the 2nd Respondent notified the appellant of the expected date of arrival of the vessel REPUBLICA DI GENOVA in Lagos, Nigeria. In truth and in fact the vessel Republica di Genova berthed in Lagos port on 6th day of December, 1989 but did not discharge the said Toyota Liteace Bus consigned to the appellant covered with Bill of Lading No.166 of 21st November, 1989 on board the vessel Republica di Genova.

Appellant reported immediately the non delivery of his Toyota Liteace Bus to 1st Respondent which yielded no positive result to cover the loss and damage for non delivery caused the appellant eventually led to commencement of action against 1st Respondent as the agent of a disclosed principal. As this action against 1st Respondent was not maintainable in law against 1st Respondent already stated and adumbrated above in this judgment made appellant to join the 2nd Respondent which application for joinder was granted on 9th May, 1991. 

As soon as the 2nd Respondent was joined by order of court of joinder ort 9th May; 1991, it resisted the joinder by application to Federal High Court, that the joinder was misconceived as it was time and statute barred under Article 3 rule 6 Carriage of Goods By Sea Act Cap 44 Laws of the Federation of Nigeria 1990. The contention was upheld it is against the ruling that gave rise to this appeal.

The facts are not in dispute. It is common ground that a Toyota Liteace Bus was consigned to the appellant from ANTWERP on straight voyage to Lagos. It was covered by Bill of Lading No.166 of 21st November, 1989 by shipment through vessel Republica  di Genova which berthed in Lagos on 6th December, 1989 but failed to discharge the said Toyota Bus. The non delivery was made to the 1st Respondent against which company an action was instituted as the agent of disclosed principal the 2nd Respondent. 

ARTICLE III of the Schedule to CARRIAGE OF GOODS BY SEA 44 rule 6 states as follows:-

"Article III (6)

Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage or if the loss or damage be not apparent within three days, such removal shall be PRIMA FACIE evidence of the delivery by the carrier of the goods as described in the bill of lading. 

The notice in writing need not be given if the state of the goods has at the time of  their receipt been the subject of joint survey or inspection.

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. 

In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods." (The underlining is mine). 

From the above the non delivery of the Toyota Bus occurred on 6th December, 1989 to make the carrier or his agent liable to the action against them for the loss or damage must have been filed on or before 7th December, 1990. Failure to file action and issue writ against the carrier or agent shall discharge the carrier or agent from all liability in respect of loss or damage after delivery of the goods or the date when the goods should have been delivered. The article has been judicially interpreted in the undermentioned cases:-

(a) KAYCEE (NIG.) v. (1) PROMPT SHIPPING CORPORATION (2) NIGERIAN PORTS AUTHORITY (1986) pt.1 Vol.17 NSCC page 152 at 160-161 (1986) 1 NWLR pt.15 page 180 SC, (1986) 1 ALL NLR pt. 1 page 28 and 29 held as follows:-

(i) In construing the terms and conditions of the Bill of Lading it is important to take into consideration all the clauses in the document.

(iii) Clause 24 of the Bill of Lading therefore is to be read subject to Article 3 rule 6 of the Carriage of Goods by Sea Act Cap 29, Laws of the Federation 1958 (is ipsissmia verba Cap 44, Laws of the Federation of Nigeria 1990 supra). 

(iv) Article 3 rule 6 deals with 3 situations:- 

(a) Where notice of loss or damage has to be made in writing to the carrier or . agent before or at the time of discharge.

(b) Where notice has to be given to the carrier within 3 days of removal of goods if damage or loss was not apparent.

(c) And where in any event the carrier or his agent is discharge from any liabilities of the claim not brought within a year.

(v) Since clause 24 of the Bill of Lading negatived by Article 3 rule 6 provides that in any event a claim could be brought within a year, the action of the appellant is not statute barred. 

(b) SAVANNAH BANK OF NIGERIA LTD V PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD & ANOR 1987 11 SC 198-332.

1987 1 NWLR pt 49 page 212 SC. 

1987 1 ALL NLR pt 1 page 31 at 32 SC held as follows:-

(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 statute 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.

(7) 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 grounds that the action of the plaintiff's company was statute barred.

(c) U.A.C. OF NIGERIA LIMITED V (1) GLOBAL TRANSPORTE OCEANICO SA (2) COMMENT SHIPPING AGENCIES NIG LTD 1996 5 NWLR pt 448 page 291at 300, 301-302 CA wherein it was held as follows.:-

(2) By virtue of Article 3 rule 6 of the carriage of goods by Sea Act otherwise known as the Hague Rules unless the suit is brought within one year after delivery of the goods, the ship and carrier shall be discharged from all liability in respect of loss or damage to the goods. However, by the proviso of that rule, the parties may agree to extend the time within which to bring to the action, 

(3) A limitation law does not operate in vacuo. In an action arising from a contract of carriage of goods by see, there must be evidence of the date of arrival of a consignment or cargo otherwise the defence of limitation will fail for lack of evidence. 

In determining the date of arrival or delivery of the cargo, the court is entitled to look at the whole evidence before it. In this case time started to run against the appellant from 31/7/87, but the suit was not brought until 14/4/89 well outside the one year prescribed by the Hague Rules. The action is therefore statute barred and since there is no evidence that the respondents extended the period the action was rightly dismissed by the High Court (SAVANNAH BANK LTD V PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD 1987 1 NWLR pt 49 page 212 referred to).

See further CARVER'S CARRIAGE BY SEA Vol.1, Thirteenth Edition by RAOUL COLINVAUX paragraphs 522 and 525. 

In the instant appeal the loss or damage for non delivery accrued or arose from 6th December 1989 this is common ground, the crux of the appeal was the joinder of the 2nd Respondent on 9th May 1991 which was obviously beyond the period of one year from 6th December 1989.

2nd Respondent postulated two theories for the joinder of the 2nd Respondent being "THE RELATION BACK THEORY" and "THE NO USEFUL PURPOSE THEORY" and argued forcefully that the court from the facts of this case wherein 2nd Respondent could plead limitation under Article 3 Rule 6 Schedule to Carriage of Goods by SEA Act Cap 44 supra should not be deprived 6f the defence, should the relation back theory be accepted. Therefore the court should accept the no useful purpose theory as backed up with the gamut of authorities of MARBRO V EAGLE STAR INSURANCE COMPANY 1932 ALLER Report page 411 Court of Appeal LIFE V PEASLEY 1980 1 ALLER & "1 623 CA and nearer home ASHIMIYU ODUOLA & ORS V CHIEF A.B. OGUNJOBI 1986 2 NWLR pt 23 page 508 at 509 CA in particular does not support appellant's case. The authorities are more persuasive and convincing that the no useful purpose theory be accepted more especially as the action against the 1st Respondent was rightly incompetent. As no proper party to wit 1st Respondent was before the court the court lacked jurisdiction as stated in MADUKOLU V NKEMDILUM 1962 2 SCNLR 341, 1962 ALL NLR 382 ONYENUCHEYA V MILITARY ADMINISTRATOR OF IMO STATE & ORS 1997 1 NWLR pt .482 at 429, CAILLIFCO LTD V PHILIPP HOLZMANN A.G. 1996 3 NWLR pt 436 page 276 CA, leads me to accept the no useful purpose theory and to reject the relation back theory as contended by the appellant. 

I am more convinced in acceptance no useful purpose theory as no competent party to wit 1st Respondent was before the court the action instituted against it was an exercise in futulity as the appellant based the claim against it as an agent known to appellant and as averred in his statement of claim as agent of a disclosed principal as parties and the courts are bound by their pleadings. This leads me to adopt the often quoted observation of LORD DENNING in the Privy Council case of MACFOY V U.A.C. 1962 AC 158 that one cannot, build something on nothing such building built on nothing is bound to collapse. A fortiori the claim against the incompetent 1st Respondent was invalid and unmaintainable at law. Having elected to sue the 1st Respondent applying WEST AFRICAN SHIPPING AGENCY & ANOR V KALLA 1978 NSCC 114 at 115 supra that

" A party to a contract can elect to look either to the principal (or agent but once he unequivocally makes an election to sue, one, the other is released from liability).

Be that as it may appellant having elected to sue 1st Respondent originally but later applied to join the 2nd Respondent who was actually joined on 9th May 1991 the cause of action applying the authorities above commenced from the day of the joinder to wit 9th May 1991. The claim for the loss or damage for non delivery of the Toyota Litence Bus arose or accrued on 6th Dec. 1989, to maintain a valid action against 2nd Respondent the action must have been instituted on or before 7th December 1990 as the action against 2nd Respondent was outside the period the appellant was caught under the period of limitation under Article 3 rule 6 of schedule to Cap 44 supra. It was not the case of the parties as provided  under the HAGUE RULES that appellant applied for an extension of the period of limitation to sue the 2nd Respondent. By virtue of Article 3 rule 6 of schedule to Cap 44, Laws of the Federation of Nigeria 1990 both the carrier in the instant appeal the 2nd Respondent and or its agent were discharged from all liability in respect of loss or damage except the suit or action was brought within one year after delivery of the goods. The appellant is caught by the said period of limitation against the 2nd Respondent OBIEFUMA v. OKOYE (1961) ALL NLR page 357 SC; EKEOGU v. ALIRI (1991) 3 NWLR pt.179 page 258 SC; FRED EGBE v. ALHAJI ALHAJI & ORS. (1990) 1 NWLR pt.128 page 546 SC; EGBE v. YUSUF & ORS. (1992) 6 NWLR pt.245 page 1 SC; YABUGBE v. COP (1992) 4 NWLR pt.234 page 152 SC; ODEKILEKUN v. HASSAN (1997) 12 NWLR pt.531 page 56 SC.

From the foregoing the learned Judge in my judgment came to a right decision that the joinder of 2nd Respondent was improper having been joined after the period of limitation of one year of the delivery as stipulated in Article III rule 6 of Cap 44 supra.

I therefore come to the irresistible conclusion that this appeal is misconceived and devoid of substance leading to its dismissal, as the ruling of the lower court was unassailable and impeccable, the appeal is therefore dismissed for the reasons stated above in this judgment. The ruling of the Federal High Court of 13th December, 1991 is hereby confirmed. 

The 2nd Respondent is entitled to the cost of this appeal which after due consideration and acting judicially and judiciously is fixed at N5,000.00 (Five thousand Naira) in favour of the 2nd Respondent against the appellant. 

DAHIRU MUSDAPHER, J.C.A.: I have had the pleasure to have read before now, the judgment of my learned brother, Onalaja, JCA, just delivered. His lordship in the aforesaid judgment has lucidly and exhaustively dealt with the issue properly submitted to this Court for determination. Nothing useful can be added. I respectfully accept the reasonings as mine. I have accordingly come to the same conclusion that this appeal is unmeritorious and misconceived.

I dismiss the appeal and abide by the order for costs proposed in I respectfully accept the reasonings as mine.

OKWUCHUKWU OPENE, J.C.A.: I have been privileged to read in advance the judgment just delivered by my learned brother Onalaja JCA. I agree with the reasoning and the conclusions reached therein.

It is trite no action can be maintained against an agent of a disclosed principal and it is a result of this that the appellant in the present suit applied to join the 2nd Respondent which application was granted. Unfortunately the date of the joinder which is of course the time that the action was commenced against the 2nd Respondent fell outside the one year limitation period and is therefore caught by the provisions of Article 111(6), carriage of Goods By Sea Act cap.44 Laws of the Federation-of Nigeria 1990.

The Appellant in his brief of argument has argued that it is the duty of the courts to aim at doing substantial justice between parties and not to let that aim be turned aside by technicalities and that the action was commenced within time how be it defective.

I must observe that this is not a procedural mistake or a technicality that the question of doing substantial justice can be invoked. The learned counsel for the appellant had admitted that the action is defective and I must say that it is not only defective bat incurably defective. Even if the action was filed in time it is worthless and any attempt by the appellant to fall back on such an action to sustain his suit against the 2nd appellant is also worthless and a pure exercise in futility as you cannot build on nothing. 

For these and the fuller reasons given in the leading judgment, I will also dismiss the appeal. I abide by consequential order made in the leading judgment including the order as to costs.

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