The Admiralty Jurisdiction of the Federal High Court
The Federal High Court of Nigeria was established in 1973 first as a revenue court. It later transformed into a specialized court with exclusive jurisdiction to hear and determine certain subject matters as expressly stipulated in the Constitution[1]. One of such subject matter is Admiralty. Section 251 (1) (g) of the 1999 Constitution (As Amended) stipulates thus;
“Notwithstanding anything to the contrary contained in 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 and exercise jurisdiction to the exclusion of any other court in civil causes & matters –
“(g) Any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluents and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the port, authorities for Federal ports) and carriage by sea;”[2]
So what exactly is the extent of the Admiralty Jurisdiction of the Federal High Court? Section 1 of the Admiralty Jurisdiction Act, Chapter A5, Laws of the Federation of Nigeria 2004 (AJA) defined the Admiralty Jurisdiction of the Federal High Court to include ‘jurisdiction to hear and determine any question relating to a proprietary interest in ship or aircraft or any maritime claim specified in Section 2 of this Act…’ Section 2 of the AJA further stipulates that a maritime claim can be subdivided into proprietary and general maritime claims. It proceeded further to list subject matters that could be classified as proprietary and general maritime claim.
Of particular interest to us in this review, and as it relates to the Supreme Court decision is Texaco Overseas (Nig) Petroleum Company Unlimited v Pedmar Nigeria Limited (2002)11M.J.S.C, is Section 2 (3) (f) of the AJA which defines a general maritime claim to include;
“a claim out of an agreement relating to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charter-party or otherwise.”
Indeed, this definition of a maritime claim and the overall maritime jurisdiction of the Federal High Court is not without a sound historical foundation. In American Insurance Co. v Ceekay Ltd (1981)SC 81 the Supreme Court, per Uwais J.S.C., adopted the relevant provision of the Administration of Justice Act, 1956 of England and held that the Admiralty Jurisdiction of the Federal High Court includes;
“any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship”
Per Uwais JSC indeed, went further to hold in that case that;
“It seems to me that the intention and overall effect of all these provisions of the 1973 Act is to oust the High Courts of the States (including the High Court of Lagos) of their Admiralty jurisdiction after the same jurisdiction had been vested in the Federal High Court. I am therefore unable to agree with the submission of Chief Williams that although the Act of 1973 took away the Admiralty jurisdiction of the High Court of Lagos it did not give the same jurisdiction to the Federal High Court.”
In other words, historically speaking, the Federal Revenue Act of 1973[3] completely ousted the jurisdiction of the State High Court to hear and determine any dispute whatsoever bothering on its former Admiralty Jurisdiction. The Federal High Court assumed exclusive jurisdiction in all Admiralty claims. Indeed, the express wordings of Section 251 (1)(g) of the 1999 Constitution will definitely support this postulation.
Texaco v Pedmar
In view of the foregoing, what then is the basis of the Supreme Court decision in Texaco Overseas (Nig) Petroleum Unlimited v Pedmar Nigeria Limited (2002) 11 M.J.S.C. Page 26? In that case, Texaco (the Defendant), chartered some vessels from Pedmar (the Plaintiff) and failed to pay the agreed charter fees. Pedmar brought the claim pursuant to the charter agreement to enforce the alleged non-payment of outstanding invoices issued in respect of the charters. Texaco alleged in its defence that it was not indebted to Pedmar as all outstanding invoices as pleaded in the suit had been paid by transfer through an overseas account at Barclays Bank Plc designated by the vessel owners for payment. Pedmar denied receiving any such payment or even designating any such overseas account for payment. At the conclusion of trial, the trial court found for Pedmar and granted its claims. Dissatisfied with the decision, Texaco appealed to the Court of Appeal and partially succeeded. Both parties then appeal to the Supreme Court. At the Supreme Court, for the first time, one of the issues raised for determination was whether the Lagos State High Court is clothed with the jurisdictional competence to hear and determine the dispute. The Supreme Court, in its considered decision, held that the Lagos State High Court had jurisdiction to determine the dispute. It his Lead Judgment, A.O. Ejewunmi JSC held thus (page 35);
“After due consideration of the facts narrated above, I am in no doubt that the contention of the Appellant that this is a case whose facts are sound in Admiralty cannot be right. This is simply a case of debt owed by the Appellant to the Respondent. The goods, which the chartered vessels carried, have quite clearly been delivered to the Appellant as agreed. I must therefore resolve this question against the Appellant.”
With respect, this writer submits that the apex court misconstrued the facts and the issues before it in two very fundamental respects. Firstly, the claim in Texaco v Padmer (Supra) is not a claim relating to carriage of goods by a ship. In this respect, the Supreme Court in Texaco v Padmer wrongly relied on the decision in Petrojessica Enterprises Ltd v Leventis Technical Company Limited (1992) 5NWLR (Pt. 244)675. In the Petrojessica case, the claim was for warehouse rent in respect of goods already discharged at the warehouse. The claim was brought as a maritime claim before the Federal High Court, Benin. In a considered decision, the Supreme Court, upholding the decision of the Court of Appeal held that once a cargo is off-loaded at the warehouse, the contract between the shipper and the consignee is discharged. Whatever happens afterwards is a matter of simple contract and not one bothering on admiralty.
Clearly, Texaco v Padmer is not a dispute bothering on carriage of goods by sea. The Supreme Court had no business imputing carriage of cargoes by the chartered vessels and assuming that the goods so carried had been discharged. It is a dispute bothering on charter of vessels and Section 2(3)(f) of the AJA expressly situates such claim within the purview of the exclusive jurisdiction of the Federal High Court. For emphasis, the facts of Texaco v Padmer involves a claim for “… the use or hire of a ship, whether by charter-party or otherwise”. Put differently, once there is an agreement for the use or charter of a vessel, be it a charter-party or otherwise, the Federal High Court will have exclusive jurisdiction to determine any dispute or claim flowing from that agreement irrespective of the nature of the dispute.
Secondly, the draftsman did not introduce any exceptions to the provisions of Section 251(1)(g) of the 1999 Constitution and Section 2(3)(f) of the AJA. Nowhere was it stated that the jurisdiction conferred on the Federal High Court is howsoever restricted, especially with respect to simple contracts or debt recovery actions. By direct and literal interpretation of those provisions, it would seem that any claim whatsoever, arising from the charter and use of a vessel will fall within the exclusive jurisdictional purview of the Federal High Court. From a historical point of view, as elaborated above, this is certainly the interpretation our courts have given to earlier, less elaborate but similar provisions relating to the Admiralty Jurisdiction of the Federal High Court. Indeed, the Nigerian courts have always interpreted section 251 of the 1999 constitution strictly, and allowing exceptions only where the specific subsection itself introduced those exceptions. The following instances will buttress this point.
- Section 251(1)(d) – “connected with or pertaining to banking, banks, other financial institutions including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letter of credit, promissory notes and other fiscal measures.”
“Provided that this paragraph shall not apply to any dispute between and individual customer and his bank in respect of transactions between the individual customer and the bank”
It is in line with the above provision and in giving a literal interpretation to the proviso thereto that the Supreme Court has held that the above provision does not cloth the Federal High Court with the exclusive jurisdiction to hear and determine dispute in a simple banking contract or disputes arising from the relationship between a bank and its individual customer. See NDIC v Okem Enterprises Ltd. (2004) 10NWLR [PT 880] 107 SC.
- Section 251(1) (p)(q)(r) – “ (p) the administration or the management and control of the Federal Government or any of its agencies”
“(q) subject to the provisions of this Constitution, the operation and interpretation of this constitution in so far as it affects the Federal Government of any of its agencies.”
“(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
“provided that nothing in the provisions of paragraph (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity”
The Supreme Court in interpreting the above provisions in Onuora v. K.R.P.C. Ltd (2005)6 NWLR [PT.921] 393, held that the sections provide a limitation to the general and all embracing jurisdiction of the State High Court because, the items listed under the said section can only be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be within the jurisdiction of the State High Court. Disputes founded on simple contract are not included in the list. The Federal High Court will therefore not have jurisdiction to entertain same.
The basis therefore for declaring that the Federal High Court lacks the jurisdictional competence to hear dispute bothering on simple contracts under Section 251(1)(p)(q),(r), is the fact that in listing specific subject matters for which the Federal High Court was conferred with exclusive jurisdiction in the proviso to that section, the constitution expressly left out simple contracts.
- Section 251(1) (n) “Mines and minerals (including oilfields, oil mining, geological surveys and natural gas.)”
In C.G.G. (Nig.) Limited v. Ogu (2005) 8 NWL [PT.927] 366, The Supreme Court held thus in respect of Section 251(1)(n);
“In Shell Petroleum Development Co. of Nigeria Ltd. v Maxon (2001) 9 NWLR (Pt. 719) 541, the court held that the relevant provisions of Decree No. 60 of 1991 and Decree No. 107 of 1993 (now section 251(1)(n) of the 1999 Constitution) put any civil cause and matters arising from or connected with or pertaining to mines and minerals, including oil fields, oil mining, geological surveys and natural gas within the exclusive jurisdiction of the Federal High Court. A State High Court, the court held, has no jurisdiction when an action will involve such matter in any form or to any degree.”
In the said SPDC v Maxon (Supra), the Court in defining the meaning of the phrases “arising from” had this to say in page 553 para E;
“To my mind the expression “arising from” connotes and denotes emanating from or springing or having its offshoot from. The term means something which is a direct offspring of the matter.”
And concluded thus in page 544 para H;
“Clearly to my mind, the combined effect of the decisions of the court in the matter seem to impress me that the Federal High Court has the exclusive jurisdiction in all matters pertaining to or connected with mines, mineral, oil fields, geological surveys and natural gas.”
In other words, the Supreme Court held that pursuant to the express provisions of Section 251(1)(n) of the 1999 Constitution any civil dispute whatsoever bothering on mines, minerals, oil fields etc, irrespective of its nature will be within the exclusive jurisdictional ambit of the Federal High Court.
We have brought out the above instances to emphasize the point that our courts do not just make general exceptions in interpreting the provisions of Section 251 of the Constitution. They have over time interpreted literally the specific paragraph and allowed exceptions where the specific paragraphs have introduced those esceptions. The question therefore, is where under Section 2(3)(f) of the AJA has the draftsman allowed for an exception bothering on debt or simple contracts? The writer submits that no such exception was accommodated. Indeed, the express provisions of Section 2(3)(f) of the AJA would suggest that every dispute “relating to” any agreement for the charter and use of a vessel will be accommodated. As long as the claim or dispute relates to or is derived from an agreement to charter a vessel, that dispute is within the exclusive jurisdictional purview of the Federal High Court for the purpose of adjudication. We submit with respect that there is no justification whatsoever for the exception introduced by the Supreme Court in Texaco v Pedmar(supra).
Conclusion
The writer strongly believes that the Admiralty Jurisdiction of the Federal High Court, as conferred on it by Section 251 (1)(g) of the 1999 Constitution, is broad, absolute and comprehensive enough to accommodate any dispute howsoever emanating from an agreement for the charter and use of a vessel. The decision in Texaco v Pedmar should be reconsidered and we hope the Supreme Court finds an opportunity to do so in no distant time.
Ndubuisi Ogbonnaya
LF Partners (Legal Practitioners)
[1] Section 251 of the 1999 Constitution (As Amended) enumerated and stipulated the extent of the Subject Matter Jurisdiction of the Federal High Court
[2] Section 7(1) (g) of the Federal High Court Act Cap F12 Laws of the Federation of Nigeria 2004, contains a similar provision.
[3] The Federal Revenue Court became the Federal High Court pursuant to the 1979 Constitution. Consequently, the Federal Revenue Court Act 1973 became the Federal High Court Act 1973