Negligence

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M. V BREUGHEL & ORS v. MONDIVEST LIMITED

citation: LGC-1529 (25/06/2018)

In The Court of Appeal of Nigeria

On Monday, the 25th day of June, 2018

CA/L/394/2016

Before Their Lordships

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

i. The sum of N700 Million Naira (Seven Hundred Million Naira) only being the the Appellants damage to its property and economic losses resulting from the loss of the rental income on its property resulting from the negligent acts of the 1st Appellant and its sister vessel. ii. The sum of N3 Billion Naira (Three Billion Naira) only being general damages for the alteration to Kuramo Waters coastline; long term devaluation of Respondents property and long term exposure of persons, property and foundation of the Respondents property to ocean swells. And The restoration of the Kuramo waters to its original state (which was a Natural buffer and protection to the Respondent from the direct perils of the open sea). The Appellant argued that the portion of the Amended claim quoted above does not show any interest and is hypothetical not worth protecting by a Court of law. The Court below in its ruling dismissing the preliminary objection by the appellant held thus: The summary of the plaintiffs claim is that the plaintiff is the owner of a fully developed coastline of 10 fully serviced flats at Southport Harbour, Victoria Island Annex and that between 2012-2014, the Defendants sister vessel, the M.V. CONGO RIVER in furtherance of the Eko Atlantic Project caused damage to the Plaintiffs Coastline which has remained un remedied to date. That the 1st and 2nd defendants have continued these acts of further dredging on the Kuramo waters since June 2015 had caused further destruction to the natural sedimentary formation and integrity of the Kuramo waters Coastline and the Plaintiffs property at Southport Harbour Victoria Island Annex thereby destroying, undermining and permanently devaluing the Plaintiffs property. These facts to my mind disclose sufficient interest in the action by the Plaintiff as it tends to show the Plaintiffs civil rights and obligations have been infringed on as the acts of continuous dredging by the 1st and 2nd defendants as alleged has continued to affect Plaintiffs property. See pages 1352-1353 of the additional Record. …………………….E……………………. Above is a summary of the claim of the Respondent which the Appellant contends does not give the Respondent locus standi. Locus standi is not dependent on the claim succeeding at the end of trial but largely on the facts averred in the statement of claim which must disclose an interest which deserves to be protected by the Court determining the claim on the merits. The Appellants admits that the Respondent can seek redress for damage to its property but argues that in this case it cannot claim to own the shore line and therefore it lacks the locus standi. The simple question to ask is whether a claimant must own the path or route taken by the peril that caused the damage to his property before seeking relief? Once there is a nexus between the act and the damage caused, the owner of the property damaged has sufficient interest. The damage is allegedly caused by the Appellants, they are known and the property allegedly damaged is owned by the Respondent, this is not contested by the Appellants. The argument of the appellants is premised on the fact that the Respondent also claims for the restoration of the coastline to protect his property. It is not the requirement of the law on Locus standi for a claimant to be the owner of the property. The law demands sufficient interest and sufficient interest could arise even when ownership is not proved by a claimant. Furthermore, the fact that some amount is claimed as damages does not also mean that the said claim would automatically succeed. I do not agree that the Respondent is a busy body or interloper, once the statement of claim has disclosed sufficient interest deserving of determination by the Court, the matter must proceed to hearing. Determination or adjudication is not synonymous with success for the claimant (Respondent). It simply means giving a claimant a right to be heard when his right is under threat or has been affected by the actions of another, the Court should therefore determine the claim on the merit. That is also a constitutional right as guaranteed by our Constitution. At this stage, the Court cannot go outside what locus standi represents and the liberal approach to it by Court would definitely swing in favour of the Respondent, that is now the norm in determining locus standi. The simple issue is justifiability of the claim and sufficiency of interest in the litigation and this was settled by the apex Court in the case of ABRAHAM ADESANYA V PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (1981) LPELR-147 (SC) which said: “It is a common ground in all the jurisdictions of the common law countries that the claimant must have some justifiable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. In most cases the area of dispute, and some time, of conflicting decisions has been whether or not on particular facts and situation the claimant has sufficient interest or injury to accord him a hearing. In the final analysis, whether a claimant has sufficient justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case: Bengal Immunity Co. v. State of Bihar (1955) 2 S. C.R. 602; Forthingham v. Mellon (1925) 262 U. S. 447. For India and America respectively. Even in the Canadian case of Torson v. Attorney General of Canada (1974) 1 N.R. 2254, and the Australian case of McKinlay v. Commonwealth (1975) 135 C.L.R. cited by Chief Fawehinmi, in which liberal views on standing were expressed, the issue of sufficiency of interest was the foundation upon which the decisions in both cases were reached.” Per BELLO,J.S.C The Appellant introduced additional test to the issue of sufficient interest and contended that it must be real and tangible relying on ELEGUSHI V OSENI (2005) 14 NWLR (Pt. 945) 348 at 375. The facts of the case cited by the Appellants does not have same facts to the case in hand. Of course, if one is not the amongst those affected by the act of the other, he cannot have the locus to sue. The Respondent copiously averred that it owns the land affected by the acts of the Appellants so his case is quite different from a person who is not affected by compulsory acquisition who cannot sue on such acquisition. The authority is distinguishable and therefore not applicable here. Another angle the Appellants approached the issue is that the Respondent does not possess the aggregate of enforceable rights in the matter because the coastline is under the control and management of the …………………….F……………………. Federal Government and as such he cannot have the locus standi to sue and claim damages for damage done to coast line, citing A.G. ANAMBRA V A.G FEDERATION (2007) 12 NWLR (Pt. 1047) 4 at 93-94 and A. G FEDERATION V A.G. ABIA (2002) 6 NWLR (Pt. 764) 542. I candidly believe that the issue of whether the Respondent who does not own the shoreline can legitimately claim damages and restoration of shoreline will depend on how extensive the damage is and since it crossed the shoreline into the property of the respondent, he can sue on such damage caused by the negligence of the Appellants. The Respondent did did not claim ownership of the entire shoreline but where its property stands. Since the ownership of the entire coastline or shoreline is not part of the statement of claim from where the legal standing of the claimant can be determined, it would amount to introducing extraneous issues to consider the question and would also be out of the question here. Delving into those areas would mean extending and altering the set down rule on how to determine locus standi. I think those issues form the defence of the Appellants to the claim. How to determine locus standi locus is limited to the Amended statement of claim, see EBONGO V UWEMEDIMO (1995) 5 NWLR (Pt. 411) 22 and DOUGLAS V SHELL PETROLEUM DEV CO. LTD (1999) 2 NWLR (Pt. 591) 466. The Respondent cannot be called upon to prove what it did not assert in the positive. If after due trial, the claim is not substantiated, then it will fail and that ends the issue. Assuming the requirement for locus standi extends to the level where it must be real and tangible interest, would the owner of a property by the shoreline which is being destroyed by acts of the Appellants not be real and tangible interest? Structures housing the serviced flats are alleged to be affected by the tidal waves as a result of the Appellants activities and the Respondent claim ownership of those serviced apartments. What can be more real than that? The Respondent pleaded his title and registration particulars and the issue of not owning the shoreline/coastline is irrelevant at this stage because damage from the Appellants activities extended to the property of the Respondent and it has the locus standi to seek to protect the said property. The damage alleged extended beyond the shoreline to the property of the Respondent. So even if the standard were the one advocated by the Appellants, I would still agree with the trial judge that the Respondent has locus standi to sue. The Appellants arguments on Eko Atlantic City being a Public Private Partnership project and its noble objectives are issues to be considered during trial and at judgment stage. The principle of shared interest in a subject matter which would defeat the Respondents interest are all issues for trial. The distinguishing feature between the holding in SEHINDEMI V GOVERNOR OF LAGOS STATE (2006) 10 NWLR (Pt. 987) 1 at 26 and this case is that the Respondents claim for damage done to his property is not a general interest but peculiar to him and therefore raises his level of interest above that of the general public, if there is a public interest that can water down the Respondents interest. This Court cannot pronounce on them here because doing so would jeopardize and poison the mind of the trial judge in determining the main claim. The issue is simply that of locus standi. The Appellant is merely being technical by stretching the principle of locus standi beyond acceptable limits and bringing in extraneous matters into the consideration and that cannot be allowed; doing so would becloud and distort the definition of locus standi and as a result defeat the ends of justice. The defence of the appellants that the Respondent does not own the shoreline on which the property stands cannot be considered at this stage, it is premature. I however agree that the issue of locus standi is a jurisdictional issue and where a party lacks the standing to sue, the Court will also lack jurisdiction to hear the matter, the trial Court was right to my mind as the Respondent cannot be shut out of having the claim determined, where there is a damage, there should be a remedy except if the claimant fails to prove his claim. The Court is a Court of equity and justice. …………………….G……………………. On issue one, I find for the Respondent. ISSUE TWO Whether the learned trial Court was right when he held that the lower Court has jurisdiction to hear and determine the Respondents suit notwithstanding that the Appellants were agents of a disclosed principal and that the Respondent has disclosed no cause of action against the Appellants? The Appellants challenged the finding of the trial Court the Respondent statement of claim disclosed a cause of action contending that an action in rem is a mere technical or procedural tool to compel the owner of the ship to enter appearance and post bail, citing RHEIN MASS UND SEE GMBH V RIVVAY LINES LIMITED (1998) 5 NWLR (Pt. 549) 265 and the Admiralty Jurisdiction Act particularly Section 2 of the Act to submit that an action in rem cannot be competent until ownership is established. That the use of the word shall in the Act implies imperativeness, relying on AGIP NIG. LTD V AGIP INT. & ORS (2010) 5 NWLR (Pt. 1187) 348; ODEDO V INEC (2008) 17 NWLR (Pt. 117) 554 and BAMAIYI V AGF (2001) 12 NWLR (Pt. 727) 468. Appellant

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