BUREAU VERITAS (NIGERIA) LIMITED V IKEOGU

BUREAU VERITAS (NIGERIA) LIMITED V IKEOGU


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON WEDNESDAY, 18TH APRIL, 2018


Suit No: CA/L/172/2016

CITATION:

Before Their Lordships:

MOHAMMED LAWAL GARBA, JCA

JOSEPH SHAGBAOR IKYEGH, JCA

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA


BETWEEN

BUREAU VERITAS (NIGERIA) LIMITED
BUREAU VERITAS S.A.
BUREAU VERITAS BIVAC B.V.
(APPELLANTS)

AND

NATHAN IKEOGU
(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Formulation of Issues for Determination – The power of the Court to modify issues formulated by parties in appeal

I intend to consider the Appellants’ Issue 1 separately and the other issues 2, 3, 4, 5, 6 and 7 together because they all question the liability of the Appellants to the Respondent in respect of the counter claim before the Lower Court. The Respondent’s issue 1 is also on jurisdiction, like the Appellant’s issue 1 and issues 2, 3 and 4 have the same substance of liability of the Appellants to the Respondents as the Appellants’ other issues. See Governor, Ekiti State v. Olu-Isunwo (2017) 3 NWLR (Pt. 1557) 1 @ 23; Chabasaya v. Anwasi (2010) 10 NWLR (1201) 163 @ 181, Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685, @ 700 on the power and authority of the Court to either modify, reframe or reject all or any of the issues formulated by the parties in appeal and consider issues that would lead to a proper determination of the complaints in the grounds of the appeal. Per GARBA, JCA. read in context

B. COURT
2. Jurisdiction – The fundamental nature of jurisdiction

Speaking generally, the law is now common knowledge in all superior Courts in Nigeria, that the issue of the jurisdiction of a Court to adjudicate over a case is both intrinsic in and extrinsic to the conduct of judicial proceedings due to its very fundamental and crucial nature of providing the official power and authority for the Court to properly and competently entertain a case and make legally binding, findings, orders and decisions. In Black’s Law Dictionary, 8th Edition at p.867, jurisdiction in relation to a Court of law, is simply defined as:-

“A Court’s power to decide a case or issue a decree.”

In Vol. 10, Halbury’s Laws of England, 4th Edition, paragraph 7.5. page 323, jurisdiction is defined as follows:

“Jurisdiction of a Court has judicially defined as a very fundamental and priceless “commodity” in the judicial process. It is the fulcrum, centre piece, or the main pillar upon which the validity of any decision of any Court stands and around which other issues rotate. It cannot be assumed or implied, it cannot also be conferred by consent or acquiescence of parties.” In line with the above definition, the apex Court has variously defined and described jurisdiction of a Court, as the lifeline, lifeblood, foundation, the threshold, radical and crucial question of competence, the centre pin, the pivot and bedrock of valid adjudication etc. See:Itaye v. Ekaidere (1978) 6-7 SC, 25, (1978) 1 ALL NLR, 27, NBN Limited v. Shoyeye (Pt. 1077) 5 SC, 181 @ 190, AGF v. Sode (1990) 1 NWLR (Pt. 126) 500, SPDCN Limited v. Isaiah (2001) 5 SC (Pt. II) 1, Okoro v. UBN Plc (2004) 1 SC (Pt. 1) 1, Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517, Attorney General of the Federation v. Guardian Newspaper (1999) 9 NWLR (Pt. 618) 187, (1999) 5 SC (Pt. III) 59, F.B.N. Plc v. Abraham (2008) 18 NWLR (Pt. 1118) 172. Because it is the basis and foundation upon which the power and authority of a Court to adjudicate over a case and conduct judicial proceedings in which it can validly and effectively make or issue legally binding decisions and orders in the settlement of disputes between parties, the absence or defect in the jurisdiction of a Court to entertain a case, would deprive it of the competence over the case and render any action or step, decisions and orders taken, reach and made, null and void, from the commencement to conclusion, no matter how otherwise, well and brilliantly conducted. Madukolu v. Nkemdilim (1962) 1 ALL NLR, 587, Skenconsult v. Ukey (1981) 1 SC, 6, Benin Rubber Producers Limited v. Ojo (1997) 9 NWLR (Pt. 521) 388, Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99, Onwudiwe v. F.R.N. (2006) 10 NWLR (Pt. 988) 382, B.A.S.F. Nigeria Limited v. Faith Enterprise Limited (2010) 4 NWLR (Pt. 1183) 104, Akere v. Attorney General, Oyo State (2012) 12 NWLR (Pt. 1314) 240. Per GARBA, JCA. read in context

C. DAMAGES
3. Special Damages – The requirement of the law on special damages

As demonstrated in the judgment by the Lower Court, the Respondent has set out specifically, the particulars of the damages suffered and claimed, in the counter claim in paragraphs 82, 83 and 84 of the Amended Statement of Defence and Counter-Claim which appear at pages 98-99 of the Record of Appeal. The Respondent gave evidence in line with the pleadings which was not effectively controverted by the Appellants and which, on the balance of probabilities, approves the claim as required by the law. See Section 134 of the Evidence Act, 2011, Eya v. Olopade (2011) 5 MJSC (Pt. II) 48, Military Governor, Lagos State v. Adeyiga (2012) MJSC (Pt. 1) 76, Adim v. N.B.C. Limited (2010) 9 NWLR (1200) 543. The requirement of the law that special damages be specifically pleaded and strictly proved means no more than setting out facts which gave rise to the damages or loss suffered with sufficient particulars so as to make them easily quantifiable and ascertainable. The standard of proof of such damages remains on the balance of probabilities or preponderance of evidence, as required by the law and does not mean an unusual or extra ordinary standard of proof. Strabag Construction Nigeria Limited v. Ogarekpe (1991) 1 NWLR (Pt. 170) 733, Adim v. N.B.C. (Supra), Johnson v. Mobil Prod. Nigeria Unlimited (2010) 7 NWLR (Pt. 1194) 462, SPDCN Limited v. Tiebo VII (2005) 3-4 SC, 137. Per GARBA, JCA. read in context

D. PRACTICE AND PROCEDURE
4. Issue of Jurisdiction – The principles of law that relate to jurisdiction on a court

Other settled and firmly established principles of law on the issue of jurisdiction of a Court to entertain a case include:-

(a) That the challenge or objection to jurisdiction may be based on, many factors or grounds, such as competence of parties, subject-matter, territory, etc.

(b) The objection to jurisdiction should be raised timeously and be determined first by the Court before a consideration of other issues in a case.

(c) It is never too late at all stages of proceedings of a case, and at all levels of the judicial hierarchy in Nigeria, to raise a genuine issue of the jurisdiction of a trial Court to entertain a case.

(d) The issue of jurisdiction can be raised by any of the parties or by the Court, suo motu.

(e)No prior leave of Court is necessary or required for a genuine issue of jurisdiction to be raised by a party at all levels of the judicial hierarchy.

See Bronik Motors Limited v. Wema Bank Limited (1983) 1 SCNLR (131) 1172, Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 527, A-G, Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552, Jeric Nigeria Limited v. UBN, Plc (2000) 12 SC (Pt. II) 133, NV Scheep v. MV’S Araz (2000) 15 NWLR (Pt. 691) 622, Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 251, A.S.T.C. v. Quorum Consortium Limited (2009) 9 NWLR (Pt. 1145) 1. Obiuweubi v. C.B.N. (2011) 7 NWLR (Pt. 1247) 465. Per GARBA, JCA. read in context

5. Issue of Jurisdiction – Difference between jurisdiction of the court and territorial jurisdiction

In the present appeal, the objection raised and argued in the Appellants’ Final Address as Issue 1, at pages 186-189 of the Record of Appeal, is to the effect that because the pre-inspection of the gloves ordered by the Respondent was carried by a company resident in Germany and that the Appellants did not take part therein, the Lower Court lacks the territorial jurisdiction to entertain the Respondent’s counter claim based on negligence in the pre-inspection since the company that carried it out is not resident in Nigeria nor carry out any business in Nigeria. Now, because the Lower Court is a Court established by the Constitution of the Federal Republic of Nigeria in Section 249(1), its territorial jurisdiction is, as a matter of course, limited to the extent of the territory described and named by the Constitution as the Federal Republic of Nigeria in Section 2(1) within which the provisions of the Constitution operate and apply. It is therefore beyond argument that the Lower Court being a Court established in and for the Federal Republic of Nigeria, has its territorial jurisdiction confined within the territorial boundaries; land, sea and air of Nigeria beyond which it could not practically venture. Territorial jurisdiction may also mean geographical jurisdiction that connotes the defined territorial boundaries of a particular area in terms of land, sea and/or air space over, which authority, power and control are exercised. The defined area may be a Nation State or Country or smaller units demarcated and identified for administrative purposes, written such a Nation State or Country, by whatever name called.
In this sense, territorial jurisdiction of a Court is different from the jurisdiction of a Court in relation to judicial division in or within which to commence an action, which is merely administrative within the territorial jurisdiction of a Court. As seen from the arguments by the learned counsel to the parties, the issue of the proper venue at which to commence an action in relation to the judicial division of a Court is usually provided for and regulated by the Rules of practice and procedure enacted or made to apply in the particular Court.

Territorial jurisdiction on the other hand is provided for by the statute under which a Court is established and for the purpose of this appeal, by the combined provisions of the Constitution and the Federal High Court Act enacted by the National Assembly pursuant to the provisions of the Constitution. See Iyanda v. Laniba II (2003) 8 NWLR (Pt. 801) 267, Int. Nigerbuilt Const. Co. Ltd. v. Giwa (2003) 13 NWLR (Pt. 836) 69, Dairo v. UBN Plc (2007) 16 NWLR (1059) 99.
A fundamental distinction between territorial jurisdiction and judicial division of a Court is that the absence of territorial jurisdiction would deprive a Court of the requisite jurisdiction and competence to entertain a case, while the initiation or commencement of an action in a wrong judicial division of a Court with the requisite statutory jurisdiction, does no rob the said Court of the competence to entertain and adjudicate over the case. For instance, there is only one Federal High Court established by the Constitution for the Country and so its territorial jurisdiction covers the whole of Nigeria, even though it is divided into different judicial divisions for administrative convenience and ease of access by parties from all parts of the Country. The commencement of a case in a wrong division of the Court does not fatally affect the statutory jurisdiction and competence of the Court where it was commenced to adjudicate over the case.
This has been the position from the 1979 Constitution on which the case of Abiola v. F.G.N. (1995) 3 NWLR (Pt. 382) was decided by the Supreme Court when it stated that:-

“By virtue of Section 228 of the 1979 Constitution there is only one Federal High Court with territorial jurisdiction over the entire country and the powers conferred on the Federal High Court by Sections 33 and 45 of the Federal High Court, Act are only supplementary to the powers of the Court already conferred by Section 231 of the 1979 Constitution. In this case therefore the Federal High Court (in Abuja) has jurisdiction to try the Appellant for the offence allegedly committed in Lagos.”

This position is based on the principle that the Rules of Court which provide for divisions of the Court for convenience and case of access by parties, do not confer jurisdiction on the Court but merely set out how the jurisdiction derived from the Constitution and other relevant statutes, is to be exercised.
It may be recalled that the objection raised by the Appellants in the Final Address was on the territorial jurisdiction of the Lower Court over a cause of action said to have arisen outside the territorial boundaries of Nigeria, wherein the Lower Court is conferred or vested with jurisdiction to entertain cases on matters. What was the decision by the Lower Court on the objection? It appears at page 467 and 468 of the Record of Appeal where stated and decided that:-

“On issue No: 2, whether the Court has the jurisdiction to entertain this action. Learned Counsel for the Plaintiff has argued that his issue seeks to re-invite this Court to revisit a decision it had already made on the issue of jurisdiction on the 31st day of May 2001, when it ruled that it has Jurisdiction.
I think the submission of Counsel for the Counter-Claimant that the point of jurisdiction raised by the defence is issue estoppel per rem judicate is well taken.

In the present case, the Court having ruled that it has jurisdiction, it would amount to issue estoppel to revisit the issue. See the following case, AL PO v. gbokere (2010) 3 (Pt. 1) IBC; Ikotun v. Oyekanmi (2008) 10 NWLR (Pt. 1094) 100, APC v. P.D.P. (2015) LPELR-2458 (SC).
In the circumstance therefore, I hold that the issue bordering on jurisdiction has been effectively closed.

And ISSUE NO. 2, is hereby resolved in favour of the Plaintiff”. Ordinarily, a Court would lack the necessary vires and competence to re-open, revisit and reconsider an issue, which in the course of the proceedings of a case it has considered and decided on the merit. Nwoga v. Benjamin (2008) LPELR-465 (CA), Oga v. Onah 2012) LPELR-22103 (CA), Saror v. Suswan (2012) LPELR-8611 (CA).

The issue of the jurisdiction of the Lower Court referred to in the above portion of the Record of Appeal which was decided by it on 1st May, 2001 was raised by the Appellants; as 4-6th Defendants to the Respondent’s counter claim in a motion dated the 26th of June, 2000. The reliefs sought in the said motion were as follows:-

“1. An Order that this Honourable Court lacks the jurisdiction to adjudicate over the claims in the Counter Claim dated 18th May, 2000 (“the Counter-Claim”) as the said claims are founded in breach(es) of contract of Negligence.

2. An Order transferring the Counter Claim in this Suit to the High Court of Lagos State for adjudication and final determination.

3. In the Alternative, an Order that the 4th and 5th Defendants/Applicants to the counter-claim are not necessary or proper parties to this Suit and their names should accordingly be struck out as parties to the Counter Claim.

4. And for such other Orders or further Orders as this Honourable Court may deem it fit to make in the circumstances of this case”.

After a consideration of the affidavit evidence and arguments by the learned counsel for the parties, the Lower Court in the aforementioned Ruling of 31st of May, 2001, made findings in respect of the reliefs sought by the Appellants, before eventually concluding, at page 306 of the ecord of Appeal, that:-

“On the whole, I find no merit whatsoever in this application, accordingly it is hereby dismissed.”

Among the relevant findings by the Lower Court in the Ruling on which the above conclusion was based and predicated are those at page 298 of the Record of Appeal, that:-

“The 4th and 6th Defendants/Appellant are sued by 1st Defendant/Counter Claimant jointly and severally for their alleged negligence in issuing a clean report of findings in respect of the goods they inspected in their capacity as pre-shipment inspectors when in reality the goods do not conform to standard as to quality. It is not in dispute that the 4th-6th Defendants/Appellants were the pre-shipment inspectors that inspected the goods and issued a Clean Report finding certifying that the goods conform with all the requirements of Pre-shipment Inspection of Imports Act”.

At page 302 that:-

“The action of the 1st Defendant/Counter Claimant against the 4th to 6th Defendants is founded on the failure of the 4th to 6th Defendants/Applicants to exercising the necessary duty of care in issuing the import Duty Report as provided by the pre-shipment inspection of Imports Act Cap 363 LFN 1990 which culminated in loses to the 1st Defendant/Counter-Claimant.”

In answer to the argument of the Counsel to the Appellants that the 1st Appellant was a Public Officer as an agent of the Federal Government and so the Counter Claim of the Respondent was statute barred, the Lower Court had found and held that:-

“The affidavit of the Defendants before the Court shows that the 4th Defendant is a company incorporated in Nigeria and engaged in local inspection of goods mainly produce, and services in only Nigeria. The 5th Defendant is a holding company of the Bureau Veritas Group and it is registered in Paris, France as a Joint Stock Company.

The 6th Defendant is the administrative Headquarters of the Bureau Veritas Group duly registered as a wholly owned subsidiary of the 5th Defendant in Rotterdam, the Netherlands. The affidavit before the Court clearly shows that the 4th-6th Defendants are private corporate personalities based in Nigeria, France and the Netherlands, there is no evidence whatsoever to show or even suggest that the 4th to 6th Defendants are Public Officers of the Federal Republic of Nigeria, I therefore find and hold that the Public Officers Protections Act Cap 379 LFN 1990 does not apply in this Suit and therefore the counter claim of the 1st Defendant/Counter Claimant is not statute band.”

Based on these profound findings, the Lower Court held that:-

“Therefore in view of the provision of Section 251(1)(F) of the 1999 Constitution of the Federal Republic of Nigeria Section 1(1)(b) of the Admiralty jurisdiction Decree No. 59 of 1991 and Section 9(2) of the Pre-shipment Inspection Act Cap 363 LFN 1990 this Court, the Federal High Court has jurisdiction to entertain the Counter Claim of the 1st Defendant/Counter Claimant against the 4th-6th Defendants/Applicants and I so hold.”

Apparently, it was after a consideration of all affidavit evidence relied on by the Appellants to challenge its jurisdiction on different grounds that the Lower Court concluded that it had jurisdiction over the counter claim of the Respondent against the Appellants including the 2nd and 3rd Appellants who, the affidavit evidence before it shows to be registered outside Nigeria; in France and Netherlands respectively but who it had earlier found to have conducted the pre-inspection of the gloves ordered by the Respondent and issued the CFR “which culminated in losses to the 1st Defendant/Counter-claimant.”

The Appellants have not disputed that the Ruling of 31st May, 2001 which has considered and made findings on the objection to the Lower Court’s jurisdiction on different grounds; including the fact that the 2nd and 3rd Appellants were registered outside Nigeria, is extant and binding on them in the absence of a valid order of a competent Court setting it aside. The Lower Court was in the peculiar circumstances of the case, right that the later objection to its jurisdiction raised by the Appellants in the Final Address on the ground it was based, had earlier on been decided by it. Even though, an issue of jurisdiction can be raised at any stage of the proceedings in a case, it is not open to a party to raise it in bits and pieces or piece-meal as it suits him. The issue of jurisdiction cannot also be raised on the same ground on which it was earlier considered and decided by a Court in the course of the same proceedings even if the ground was not raised by the party in the objection. To allow a party or his counsel to be at liberty to raise the issue of jurisdiction by installments in the course of the same proceedings before a Court would be to allow ambush on the other party and the Court as well and make conduct of proceedings uncertain and dependent on the whims of counsel. In the case A.P.G.A. v. Umeh (2011) 8 NWLR (Pt. 1250) 544 @ 569-70 the apex Court, per Tobi, JSC, has said that:-

“Litigation is not a fencing game where litigants and their Counsel speak from both sides of their mouth, change and fickle like the proverbial weather cock.”

The learned law Professor and Lord had earlier, in Chief of Airstaff v. Iyen (2005) ALL FWLR (Pt. 252) 404 @ 434 stated that:-

“Litigation is a straight forward legal matter of adjudication which does not or better still, should not admit pretence or tricks. Litigation is not a vain rhetoric or insincere polemics, but one of reciprocal sincerity of the parties by placing all their cards openly before the Court for adjudication and final decision. The principles of equity and justice will not allow any party to play pranks.”

Raising the issue of the Lower Court’s jurisdiction to entertain the Respondent’s counter claim in the course of the same proceedings of the case after it had earlier been considered and decided by the Lower Court, on the same ground, was a desperate prank to hoodwink it to re-open the issue it had decided earlier and possibly contradict itself on the issue because it was differently constituted at the time of the attempt. In the case of Ugo v. Ugo (2017) 18 NWLR (Pt. 1597) 218 @ 141-2, the apex Court; per Onnoghen, CJN has stated that a decision by a Court that it has jurisdiction to entertain a case, is a final decision which it cannot revisit, but has to be challenged by way of an appeal.
The cases of Alor v. Ngene (2007) 17 NWLR (Pt. 1062) 163 and Ogolo v. Ogolo (2006) 5 NWLR (Pt 972) 173 were referred to by the Lord Chief Justice, for the position.

The Appellants did not challenge the said decision since the appeal lodged against the Ruling of 31st May, 2001, in this Court was abandoned by them and struck out by the Court on the 5th of November, 2003 for want of diligent prosecution as borne out at Pages 461 and 467 of the Record of Appeal.

Raising the issue again in this appeal surreptitiously, is yet another attempt to resurrect the appeal struck out on 5th November, 2003 on the same issue against a decision delivered on the 31st May, 2001. The law does not permit or allow that. The issue of the Lower Court’s jurisdiction to entertain the Respondent’s counter claim, in the circumstances of the Appellants’ case, in the words of the Lower Court “has been effectively closed” at the time of the Final Address wherein it was again, raised by counsel for the Appellant. In the result, I find no merit in the arguments of the Appellants on the issue and it is resolved against them. Per GARBA, JCA. read in context

E. TORT
6. Duty of Care –The duty of care imposed upon the inspection agent by provision of law

Beginning with Section 3 of the PIIA, it provides thus:-

“Fees and duties payable by importers

(1) All importers shall pay into a special account designate for that purpose in the Central Bank, fees calculated as 1 per cent ad valorem of the FOB value of all imports assessed by the inspecting agent or such per centum of the FOB value of goods inspected as may be prescribed by the FGN from time to time, based on the exchange rate prevailing at the previous week of inspection as determined by the C.B.N.

(2) All duties assessed as payable by the importers in respect of goods inspected by the inspecting agent, shall be payable by the importers in accordance with procedures contained in the applicable guidelines, as may be issued by the F.G.N. as required and shall be based on the average autonomous rate of exchange of the previous we as determined by the C.B.N.”

Apparently, these provisions require the payment of fees by importers based on the inspection agent’s assessment/inspection of goods to be imported into Nigeria from outside the Country. The payment of the fees by the importers under these provisions is entirely predicated on and to be based on the assessment of the goods by the inspection agent. The provisions impose the statutory responsibility and obligation on the inspection agent to inspect the goods to be imported into Nigeria and so the duty of care to do so diligently and accurately in order to assess the fees payable by the importer and due to the Federal Government for the importation. Because the agent is appointed by the C.B.N. for the Federal Government for the purpose of the inspection and assessment of the fees due on the goods, there is the statutory and contractual duty on the part of the agent to exercise reasonable care and diligence in carrying out the inspection and assessment of the fees due for the goods. On the part the importer, the inspection agent also owes the implied statutory duty to the importer, under the provisions, to exercise reasonable care and diligence in the inspection and assessment of the fees because it is the importer who is to pay what was assessed by the agent as the fees due on the goods. Even though the importer did not appoint the inspection agent for the purpose of the pre-shipment or pre-importation inspection of the goods, yet, because the importer is eventually to pay for not only the fees to be assessed for the importation of the goods, by the inspection agent, but also for the inspection itself, the inspection agent owes the professional business, commercial and implied legal duty of care in the inspection and assessment of the fees due for the importation which directly affect the importer. In that context, the Lower Court is right that the general and broad objective of section 3 PIIA is to protect the importation of goods that do not meet the quantity, qualify and standards of agreed by the parties and ensure that appropriate prescribed fees for the importation are assessed and paid to the Government for the importation. The Act therefore aims to protect both the importer and the Government in the import business.
In the above premises, an inspection agent whose negligence in the pre-inspection of goods imported into Nigeria resulted into loss, injury or some other damages to the importer either in terms of quantity, quality and price or assessment of fees payable on the goods, cannot escape liability on the ground that there is no direct contractual or judiciary relationship between it and the importer or that there is no duty of care on its part in favour of the importer.

The position was stated in Societe Generale de Surveillance S.A. v. Rastico Nigeria Limited (supra) at page 97, that:-

“The importer in Nigeria relies on the skill and ability of the overseas inspection authority to provide a technical advice certifying that the goods shipped or to be shipped are of merchantable quality and if the inspection authority knows or ought to know that the importer will rely on such representation which turns out to be a misstatement a duty of care not to give a wrong representation which result in the financial loss or detriment of the importer relying on such expertise is placed on inspecting authority.”

The argument that an inspection agent owes no duty of care to an importer in the inspection of the goods to be imported in to Nigeria is therefore not tenable in law. Per GARBA, JCA. read in context


LEAD JUDGMENT DELIVERED BY GARBA, JCA


This appeal is against the decision of the Federal High Court, sitting at Lagos contained in the judgment delivered on 6th of May, 2016, wherein the Respondent’s Amended Counter Claim was granted against the Appellants.

In brief, the Respondent had ordered for 60,000 units of cow leather industrial working gloves from Carl Friedrich & Co. GMbtt in Germany and paid for the order. Bureau Veritas Germany (B.V. Germany) was appointed by the Central Bank of Nigeria (C.B.N.) as the pre-inspection agent for the gloves ordered by the Respondent and it issued a Clean Report of Finding (C.R.F.) after the pre-inspection of the gloves in Germany, certifying that they were of the quality, inter alia, indicated in the shipping documents given to it. When the gloves arrived in Nigeria from Germany, the Respondent found that they were of inferior quality than the ones he ordered and so rejected them. Carl Friedrich & Co. GMbtt sued the Respondent before the Lower Court for the rejection of the gloves and in reaction; the Respondent filed a statement of defence and counter claimed against the Appellants, among other Claimants/Defendants to the Counter Claim.

Being dissatisfied with the grant of the Respondent’s counter claim, the Appellants brought this appeal by the Notice of Appeal dated and filed on the 15th of May, 2015, on thirteen (13) grounds from which seven (7) issues are said to arise for decision by the Court in the Appellant’s brief filed on the 10th of November, 2016. They are:-

“i. Whether the jurisdictional issues raised by the Appellants during the final address could be caught by the doctrine of estoppel – ground 13;

ii. Whether a pre-shipment inspection agent’s appointment by the C.B.N. creates: (1) a statutory contract; (2) an obligation capable of resulting in criminal liability if breached; or (3) a statutory duty of care, between the inspection agent and the importer – grounds 1, 2 and 3;

iii. Whether the lower Court was right in holding B.V. Germany was liable, when the Respondent: (1) failed to supply the alleged sample gloves for the pre-shipment inspection; (2) described the supply as Art 1409 (not Art. 1409/6008); and (3) permitted ‘usual deviation allowed’- grounds 4, 5 and 6;

iv. Whether in view of the Respondent’s failure to prove that the quality, quantity and price of the imported gloves in the shipping documents complied with products in that class in Germany, the lower Court ought to have held the Appellants for breach of duty to the Respondent – ground 7;

v. Whether, in view of the Respondent’s tampering of the imported gloves before the re-inspection, the lower Court ought to have still base judgment on the re-inspection report – ground 8;

vi. Whether, in the absence of any evidence before the lower Court, the Appellants can be held to be subsidiaries of B.V. Germany and also liable for the actions of B.V. Germany – ground 9;

vii. Whether the Respondent’s action for negligence against the Appellants ought to succeed – grounds 10, 11 and 13.”

In the Respondent’s brief filed on the 7th of March, 2017, four (4) issues are raised for determination in the appeal as follows:-

“1. Whether the jurisdiction of the lower Court was ousted by the provisions of Section 19(1) of the Federal High Court Act and Order 10 Rule 1(9) of the Federal High Court (Civil Procedure) Rules, 1999.

2. Whether an inspecting agent under the Pre-shipment Inspection of Imports Act can be liable in negligence to the Importer.

3. Whether the Appellants were properly sued as defendants to the Counter-claim.

4. Whether the Respondent is not entitled to judgment against the Appellants as entered by the lower Court.”

I intend to consider the Appellants’ Issue 1 separately and the other issues 2, 3, 4, 5, 6 and 7 together because they all question the liability of the Appellants to the Respondent in respect of the counter claim before the Lower Court.

The Respondent’s issue 1 is also on jurisdiction, like the Appellant’s issue 1 and issues 2, 3 and 4 have the same substance of liability of the Appellants to the Respondents as the Appellants’ other issues.

See Governor, Ekiti State v. Olu-Isunwo (2017) 3 NWLR (Pt. 1557) 1 @ 23; Chabasaya v. Anwasi (2010) 10 NWLR (1201) 163 @ 181, Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685, @ 700 on the power and authority of the Court to either modify, reframe or reject all or any of the issues formulated by the parties in appeal and consider issues that would lead to a proper determination of the complaints in the grounds of the appeal.

The Appellants have also filed an Appellants’ Reply brief on the 15th of September, 2017 which was deemed on the 23rd of January, 2018.

Issue 1:

“Whether the jurisdictional issues raised by the Appellants during the final address could be caught by the doctrine of estoppel – ground 13.”

The arguments of the Appellants on the issue are to the effect that the Lower Court was wrong to have failed to consider the issue challenging its jurisdiction to entertain the Respondent’s counter claim which was raised in the Appellants, final address on the ground that it had earlier ruled on an objection to its jurisdiction to entertain the case. Relying on F.R.N. v. Ifegwu (2003) 15 NWLR (Pt. 842) 113 @ 212, it is submitted that the principle of estoppel does not apply to the issue of jurisdiction of a Court to entertain a case because once a Court lacks jurisdiction over a case, the principles of estoppel or res judicata cannot vest it with jurisdiction to adjudicate over the case.

On that ground, counsel contends that even though the Lower Court had earlier on ruled on a factor which challenged its jurisdiction over the case, it could still consider another objection to the jurisdiction based on another factor which goes to challenge the jurisdiction. According to him, the earlier ground of the objection to the Lower Court’s jurisdiction, which was overruled, was that the cause of action was a simple contract or negligence while the ground of the objection raised in the address was on territorial jurisdiction as the alleged negligence in the counter claim happened in Germany; outside the territorial jurisdiction of the Lower Court.

The Court is urged to invoke Section 15 of the Court of Appeal Act and determine the objection to the territorial jurisdiction of the Lower Court to entertain the counter claim of the Respondent, citing UBN Limited v. Fajebe Foods & Poultry Farms (1994) 5 NWLR (Pt. 344) 325 and Cappa & D’Alberto Limited v. Akintilo (2003) 9 NWLR (Pt. 782) 575.

For the Respondent, it is submitted on the issue that Section 19(1) of the Federal High Court, Rules 2004 does not oust the jurisdiction of Lower Court over the counter claim of the Respondent and that Order 10 Rule 1(9) of the Federal High Court Rules, 1999 was not applicable since the Rules have been repealed by the time the objection was raised. Also, that the provisions of Order 2 of the 2009 Rules of the Lower Court which are similar to the provisions of Order 10 of the 1999 Rules, apply only to defendants who are resident in Nigeria and so the 2nd and 3rd Appellants who are said to be resident outside Nigeria, cannot benefit from the provisions. Cases, including Egbo v. Agbara (1997) 1 SCNJ, 94 @ 107 and Ogigie v. Obiyan (1997) 10 SCNJ 1 were cited on the effect of commencing a case in a wrong division of the Lower Court under Order 2, Rule 3 of the 2009 Rules.

In the Appellants’ Reply brief, it is maintained that the territorial jurisdiction of the Lower Court did not extend outside Nigeria and that though the 1999 Rules were repealed, they applied to the Respondent’s counter claim which was commenced before the repeal, on the authority of Section 6(1) of the Interpretation Act as well as the case of N.E.P.A. v. Atukpor (2001) 1 NWLR (Pt. 693) 110. In the alternative, it is said that the Appellants’ objection was not based on the Rules of the Lower Court but on the Federal High Court Act, 1973 which limits the territorial jurisdiction to Nigeria.

Speaking generally, the law is now common knowledge in all superior Courts in Nigeria, that the issue of the jurisdiction of a Court to adjudicate over a case is both intrinsic in and extrinsic to the conduct of judicial proceedings due to its very fundamental and crucial nature of providing the official power and authority for the Court to properly and competently entertain a case and make legally binding, findings, orders and decisions.

In Black’s Law Dictionary, 8th Edition at p.867, jurisdiction in relation to a Court of law, is simply defined as:-

“A Court’s power to decide a case or issue a decree.”

In Vol. 10, Halbury’s Laws of England, 4th Edition, paragraph 7.5. page 323, jurisdiction is defined as follows:

“Jurisdiction of a Court has judicially defined as a very fundamental and priceless “commodity” in the judicial process. It is the fulcrum, centre piece, or the main pillar upon which the validity of any decision of any Court stands and around which other issues rotate. It cannot be assumed or implied, it cannot also be conferred by consent or acquiescence of parties.”

In line with the above definition, the apex Court has variously defined and described jurisdiction of a Court, as the lifeline, lifeblood, foundation, the threshold, radical and crucial question of competence, the centre pin, the pivot and bedrock of valid adjudication etc. See:Itaye v. Ekaidere (1978) 6-7 SC, 25, (197 ) 1 ALL NLR, 27, NBN Limited v. Shoyoye (1977) 5 SC, 181 @ 190, AGF v. Sode (1990) 1 NWLR (Pt. 126) 500, SPDCN Limited v. Isaiah (2001) 5 SC (Pt. II) 1, Okolo v. UBN Plc (2004) 1 SC (Pt. 1) 1, Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517, Attorney General of the Federation v. Guardian Newspaper (1999) 9 NWLR (Pt. 618) 187, (1999) 5 SC (Pt. III) 59, F.B.N. Plc v. Abraham (2008) 18 NWLR (Pt. 1118) 172. Because it is the basis and foundation upon which the power and authority of a Court to adjudicate over a case and conduct judicial proceedings in which it can validly and effectively make or issue legally binding decisions and orders in the settlement of disputes between parties, the absence or defect in the jurisdiction of a Court to entertain a case, would deprive it of the competence over the case and render any action or step, decisions and orders taken, reach and made, null and void, from the commencement to conclusion, no matter how otherwise, well and brilliantly conducted. Madukolu v. Nkemdilim (1962) 1 ALL NLR, 587, Skenconsult v. Ukey (1981) 1 SC, 6, Benin Rubber Producers Limited v. Ojo (1997) 9 NWLR (Pt. 521) 388, Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99, Onwudiwe v. F.R.N. (2006) 10 NWLR (Pt. 988) 382, B.A.S.F. Nigeria Limited v. Faith Enterprise Limited (2010) 4 NWLR (Pt. 1183) 104, Akere v. Attorney General, Oyo State (2012) 12 NWLR (Pt. 1314) 240.

Other settled and firmly established principles of law on the issue of jurisdiction of a Court to entertain a case include:-

(a) That the challenge or objection to jurisdiction may be based on, many factors or grounds, such as competence of parties, subject-matter, territory, etc.

(b) The objection to jurisdiction should be raised timeously and be determined first by the Court before a consideration of other issues in a case.

(c) It is never too late at all stages of proceedings of a case, and at all levels of the judicial hierarchy in Nigeria, to raise a genuine issue of the jurisdiction of a trial Court to entertain a case.

(d) The issue of jurisdiction can be raised by any of the parties or by the Court, suo motu.

(e) No prior leave of Court is necessary or required for a genuine issue of jurisdiction to be raised by a party at all levels of the judicial hierarchy.

See Bronik Motors Limited v. Wema Bank Limited (1983) 1 SCNLR (131) 1172, Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 527, A-G, Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552, Jeric Nigeria Limited v. UBN, Plc (2000) 12 SC (Pt. II) 133, NV Scheep v. MV’S Araz (2000) 15 NWLR (Pt. 691) 622, Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 251, A.S.T.C. v. Quorum Consortium Limited (2009) 9 NWLR (Pt. 1145) 1. Obiuweubi v. C.B.N. (2011) 7 NWLR (Pt. 1247) 465.

In the present appeal, the objection raised and argued in the Appellants’ Final Address as Issue 1, at pages 186-189 of the Record of Appeal, is to the effect that because the pre-inspection of the gloves ordered by the Respondent was carried by a company resident in Germany and that the Appellants did not take part therein, the Lower Court lacks the territorial jurisdiction to entertain the Respondent’s counter claim based on negligence in the pre-inspection since the company that carried it out is not resident in Nigeria nor carry out any business in Nigeria.

Now, because the Lower Court is a Court established by the Constitution of the Federal Republic of Nigeria in Section 249( ), its territorial jurisdiction is, as a matter of course, limited to the extent of the territory described and named by the Constitution as the Federal Republic of Nigeria in Section 2(1) within which the provisions of the Constitution operate and apply. It is therefore beyond argument that the Lower Court being a Court established in and for the Federal Republic of Nigeria, has its territorial jurisdiction confined within the territorial boundaries; land, sea and air of Nigeria beyond which it could not practically venture. Territorial jurisdiction may also mean geographical jurisdiction that connotes the defined territorial boundaries of a particular area in terms of land, sea and/or air space over, which authority, power and control are exercised. The defined area may be a Nation State or Country or smaller units demarcated and identified for administrative purposes, written such a Nation State or Country, by whatever name called.

In this sense, territorial jurisdiction of a Court is different from the jurisdiction of a Court in relation to judicial division in or within which to commence an action, which is merely administrative within the territorial jurisdiction of a Court. As seen from the arguments by the learned counsel to the parties, the issue of the proper venue at which to commence an action in relation to the judicial division of a Court is usually provided for and regulated by the Rules of practice and procedure enacted or made to apply in the particular Court.

Territorial jurisdiction on the other hand is provided for by the statute under which a Court is established and for the purpose of this appeal, by the combined provisions of the Constitution and the Federal High Court Act enacted by the National Assembly pursuant to the provisions of the Constitution. See Iyanda v. Laniba II (2003) 8 NWLR (Pt. 801) 267, Int. Nigerbuilt Const. Co. Ltd. v. Giwa (2003) 13 NWLR (Pt. 836) 69, Dairo v. UBN Plc (2007) 16 NWLR (1059) 99.

A fundamental distinction between territorial jurisdiction and judicial division of a Court is that the absence of territorial jurisdiction would deprive a Court of the requisite jurisdiction and competence to entertain a case, while the initiation or commencement of an action in a wrong judicial division of a Court with the requisite statutory jurisdiction, does no rob the said Court of the competence to entertain and adjudicate over the case. For instance, there is only one Federal High Court established by the Constitution for the Country and so its territorial jurisdiction covers the whole of Nigeria, even though it is divided into different judicial divisions for administrative convenience and ease of access by parties from all parts of the Country. The commencement of a case in a wrong division of the Court does not fatally affect the statutory jurisdiction and competence of the Court where it was commenced to adjudicate over the case.

This has been the position from the 1979 Constitution on which the case ofAbiola v. F.G.N. (1995) 3 NWLR (Pt. 382) was decided by the Supreme Court when it stated that:-

“By virtue of Section 228 of the 1979 Constitution there is only one Federal High Court with territorial jurisdiction over the entire country and the powers conferred on the Federal High Court by Sections 33 and 45 of the Federal High Court, Act are only supplementary to the powers of the Court already conferred by Section 231 of the 1979 Constitution. In this case therefore the Federal High Court (in Abuja) has jurisdiction to try the Appellant for the offence allegedly committed in Lagos.”

This position is based on the principle that the Rules of Court which provide for divisions of the Court for convenience and case of access by parties, do not confer jurisdiction on the Court but merely set out how the jurisdiction derived from the Constitution and other relevant statutes, is to be exercised.

It may be recalled that the objection raised by the Appellants in the Final Address was on the territorial jurisdiction of the Lower Court over a cause of action said to have arisen outside the territorial boundaries of Nigeria, wherein the Lower Court is conferred or vested with jurisdiction to entertain cases on matters. What was the decision by the Lower Court on the objection? It appears at page 467 and 468 of the Record of Appeal where stated and decided that:-

“On issue No: 2, whether the Court has the jurisdiction to entertain this action. Learned Counsel for the Plaintiff has argued that his issue seeks to re-invite this Court to revisit a decision it had already made on the issue of jurisdiction on the 31st day of May 2001, when it ruled that it has Jurisdiction.

I think the submission of Counsel for the Counter-Claimant that the point of jurisdiction raised by the defence is issue estoppel per rem judicate is well taken.

In the present case, the Court having ruled that it has jurisdiction, it would amount to issue estoppel to revisit the issue. See the following case, ALAPO v. Agbokere (2010) 3 (Pt . 1) IBC; Ikotun v . Oyekanmi (2008) 10 NWLR (Pt. 1094) 100, APC v. P.D.P. (2015) LPELR-24587 (SC).

In the circumstance therefore, I hold that the issue bordering on jurisdiction has been effectively closed. And ISSUE NO. 2, is hereby resolved in favour of the Plaintiff”.

Ordinarily, a Court would lack the necessary vires and competence to re – open, revisit and reconsider an issue, which in the course of the proceedings of a case it has considered and decided on the merit. Nwoga v. Benjamin (2008) LPELR-4651 (CA), Aga v. Onah (2012) LPELR-22103 (CA), Saror v. Suswan (2012) LPELR-8611 (CA).

The issue of the jurisdiction of the Lower Court referred to in the above portion of the Record of Appeal which was decided by it on 31st May, 2001 was raised by the Appellants; as 4-6th Defendants to the Respondent’s counter claim in a motion dated the 26th of June, 2000. The reliefs sought in the said motion were as follows:-

“1. An Order that this Honourable Court lacks the jurisdiction to adjudicate over the claims in the Counter Claim dated 18th May, 2000 (“the Counter-Claim”) as the said claims are founded in breach(es) of contract of Negligence.

2. An Order transferring the Counter Claim in this Suit to the High Court of Lagos State for adjudication and final determination.

3. In the Alternative, an Order that the 4th and 5th Defendants/Applicants to the counter-claim are not necessary or proper parties to this Suit and their names should accordingly be struck out as parties to the Counter Claim.

4. And for such other Orders or further Orders as this Honourable Court may deem it fit to make in the circumstances of this case”.

After a consideration of the affidavit evidence and arguments by the learned counsel for the parties, the Lower Court in the aforementioned Ruling of 31st of May, 2001, made findings in respect of the reliefs sought by the Appellants, before eventually concluding, at page 306 of the Record of Appeal, that:-

“On the whole, I find no merit whatsoever in this application, accordingly it is hereby dismissed.”
Among the relevant findings by the Lower Court in the Ruling on which the above conclusion was based and predicated are those at page 298 of the Record of Appeal, that:-

“The 4th and 6th Defendants/Appellant are sued by 1st Defendant/Counter Claimant jointly and severally for their alleged negligence in issuing a clean report of findings in respect of the goods they inspected in their capacity as pre-shipment inspectors when in reality the goods do not conform to standard as to quality.

It is not in dispute that the 4th – 6th Defendants/Appellants were the pre-shipment inspectors that inspected the goods and issued a Clean Report finding certifying that the goods conform with all the requirements of Pre-shipment Inspection of Imports Act”.

At page 302 that:-

“The action of the 1st Defendant/Counter Claimant against the 4th to 6th Defendants is founded on the failure of the 4th to 6th Defendants/Applicants to exercising the necessary duty of care in issuing the import Duty Report as provided by the pre-shipment inspection of Imports Act Cap 363 LFN 1990 which culminated in loses to the 1st Defendant/Counter-Claimant.”

In answer to the argument of the Counsel to the Appellants that the 1st Appellant was a Public Officer as an agent of the Federal Government and so the Counter Claim of the Respondent was statute barred, the Lower Court had found and held that:-

“The affidavit of the Defendants before the Court shows that the 4th Defendant is a company incorporated in Nigeria and engaged in local inspection of goods mainly produce, and services in only Nigeria.

The 5th Defendant is a holding company of the Bureau Veritas Group and it is registered in Paris, France as a Joint Stock Company.

The 6th Defendant is the administrative Headquarters of the Bureau Veritas Group duly registered as a wholly owned subsidiary of the 5th Defendant in Rotterdam, the Netherlands. The affidavit before the Court clearly shows that the 4th-6th Defendants are private corporate personalities based in Nigeria, France and the Netherlands, there is no evidence whatsoever to show or even suggest that the 4th to 6th Defendants are Public Officers of the Federal Republic of Nigeria, I therefore find and hold that the Public Officers Protections Act Cap 379 LFN 1990 does not apply in this Suit and therefore the counter claim of the 1st Defendant/Counter Claimant is not statute band.”

Based on these profound findings, the Lower Court held that:-

Therefore in view of the provision of Section 251(1)(F) of the 1999 Constitution of the Federal Republic of Nigeria Section 1(1)(b) of the Admiralty jurisdiction Decree No. 59 of 1991 and Section 9(2) of the Pre-shipment Inspection Act Cap 363 LFN 1990 this Court, the Federal High Court has jurisdiction to entertain the Counter Claim of the 1st Defendant/Counter Claimant against the 4th-6th Defendants/Applicants and I so hold.”

Apparently, it was after a consideration of all affidavit evidence relied on by the Appellants to challenge its jurisdiction on different grounds that the Lower Court concluded that it had jurisdiction over the counter claim of the Respondent against the Appellants including the 2nd and 3rd Appellants who, the affidavit evidence before it shows to be registered outside Nigeria; in France and Netherlands respectively but who it had earlier found to have conducted the pre-inspection of the gloves ordered by the Respondent and issued the CFR “which culminated in losses to the 1st Defendant/Counter-claimant”.

The Appellants have not disputed that the Ruling of 31st May, 2001 which has considered and made findings on the objection to the Lower Court’s jurisdiction on different grounds; including the fact that the 2nd and 3rd Appellants were registered outside Nigeria, is extant and binding on them in the absence of a valid order of a competent Court setting it aside.

The Lower Court was in the peculiar circumstances of the case, right that the later objection to its jurisdiction raised by the Appellants in the Final Address on the ground it was based, had earlier on been decided by it. Even though, an issue of jurisdiction can be raised at any stage of the proceedings in a case, it is not open to a party to raise it in bits and pieces or piece-meal as it suits him. The issue of jurisdiction cannot also be raised on the same ground on which it was earlier considered and decided by a Court in the course of the same proceedings even if the ground was not raised by the party in the objection. To allow a party or his counsel to be at liberty to raise the issue of jurisdiction by installments in the course of the same proceedings before a Court would be to allow ambush on the other party and the Court as well and make conduct of proceedings uncertain and dependent on the whims of counsel. In the case A.P.G.A. v. Umeh (2011) 8 NWLR (Pt. 1250) 544 @ 569-70 the apex Court, per Tobi, JSC, has said that:-

“Litigation is not a fencing game where litigants and their Counsel speak from both sides of their mouth, change and fickle like the proverbial weather cock”.

The learned law Professor and Lord had earlier, in Chief of Airstaff v. Iyen (2005) ALL FWLR (Pt. 252) 404 @ 434 stated that:-

“Litigation is a straight forward legal matter of adjudication which does not or better still, should not admit pretence or tricks. Litigation is not a vain rhetoric or insincere polemics, but one of reciprocal sincerity of the parties by placing all their cards openly before the Court for adjudication and final decision. The principles of equity and justice will not allow any party to play pranks.”

Raising the issue of the Lower Court’s jurisdiction to entertain the Respondent’s counter claim in the course of the same proceedings of the case after it had earlier been considered and decided by the Lower Court, on the same ground, was a desperate prank to hoodwink it to re-open the issue it had decided earlier and possibly contradict itself on the issue because it was differently constituted at the time of the attempt.

In the case of Ugo v. Ugo (2017) 18 NWLR (Pt. 1597) 218 @ 141-2, the apex Court; per Onnoghen, CJN has stated that a decision by a Court that it has jurisdiction to entertain a case, is a final decision which it cannot revisit, but has to be challenged by way of an appeal.

The cases of Alor v. Ngene (2007) 17 NWLR (Pt. 1062) 163 and Ogolo v. Ogolo (2006) 5 NWLR (Pt 972) 173 were referred to by the Lord Chief Justice, for the position. The Appellants did not challenge the said decision since the appeal lodged against the Ruling of 31st May, 2001, in this Court was abandoned by them and struck out by the Court on the 5th of November, 2003 for want of diligent prosecution as borne out at Pages 461 and 467 of the Record of Appeal.

Raising the issue again in this appeal surreptitiously, is yet another attempt to resurrect the appeal struck out on 5th November, 2003 on the same issue against a decision delivered on the 31st May, 2001. The law does not permit or allow that.

The issue of the ower Court’s jurisdiction to entertain the Respondent’s counter claim, in the circumstances of the Appellants’ case, in the words of the Lower Court “has been effectively closed” at the time of the Final Address wherein it was again, raised by counsel for the Appellant. In the result, I find no merit in the arguments of the Appellants on the issue and it is resolved against them.

Appellants’ Issues 2, 3, 4, 5, 6 and 7.

The Appellants’ submissions are that the Lower Court was wrong in its findings that the Pre-Inspection of Imports Act 2004 (PIIA) created a statutory contractual relationship between the pre-inspection agent and the importer of good to give rise to a duty of care, the breach of which could give rise to criminal liability on the part of the agent. Citing Section 36(12) of the 1999 Constitution and Aoko v. Fagbemi (1961) ALL NLR 416, it is submitted that a Court cannot impose a criminal offence not defined by a written law and that Sections 3 and 4 of the PIIA were intended to facilitate payment of accurate import duties and not to protect importers from fraudulent importations as was held by the Lower Court. Sections 3 and 4 of the PIIA were set out, Awolowo v. Shagari (1979) NSCC, 87 @ 101 on interpretation of plain words of statutes, was cited and the treatise by Anson, J, among others, on the purpose of pre-inspection laws was referred to by Counsel who maintain that the objection of the PIIA was to ensure proper assessment and payment of import duty to government by importers and not to impose a duty of care on pre-inspection agents in favour of the importers. The case of Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt. 805) 589 @ 622 and 531 on the concept and definition of a statutory contract of employment or contact with statutory flavour was cited and it is argued that the Respondent did not prove that he appointed the pre-inspection agent at Germ any or the Appellants as pre-shipment agents to create any contractual relationship between him and any of them. That the pre-inspection agent was appointed by the Central Bank of Nigeria (C.B.N.) for the Federal Government of Nigeria (F.G.N.) and so there was no direct relationship between the Respondent and the pre-inspection agent in Germany or the Appellants to have created any duty of care in his favour.

The Respondent was also said not to have provided samples of the gloves he ordered to the pre-inspection agent in Germany; B.V. Germany, to serve as the basis of the inspection and that inspection was based on the description of the gloves provided on the shipping documents. Kate Enterprise Limited v. Dacuros Nigeria Limited (1985) ALL FWLR, 267, interalia, was referred to on what inspection of goods on the basis of samples depends and it is contended that since B.V. Germany inspected the gloves on the basis of the shipping documents made available to it and the gloves shipped to the Respondent conform to the description thereon, the Appellants are not liable to the Respondent for any negligence by the pre-inspection agent. In further arguments, Counsel for the Appellants said the Respondent also failed to prove that the quality, quantity and price of the imported gloves were inferior and less than the ones described in the shipping documents for the Appellants to be liable, relying on Sections 131(1), 132, 133 (1) to (3) and 134 of the Evidence Act, 2011 and the case of U.T.B. v. Ozoemena (2007) 3 NWLR (Pt. 1022) 448 @ 464, on proof of negligence.

Furthermore, it is argued that the Respondent had tempered with the seal of the pre-inspection agent on the imported gloves in the absence of any representative before the re-inspection was carried out and so it was wrong for the Lower Court to have relied on the re-inspection report for its decision since the Respondent did not reply the allegation of tempering with the gloves, on the authority of KSM v. Amaechi (2014) LPELR-22820 (CA).

The Court is urged to reverse the decision by the Lower Court.

It is also the case of the Appellants that by the provisions of Section 54 of the Companies and Allied Matters Act, 2004 (C.A.M.A.) (C.A.M.A.) and the authorities of PHRC Limited v. Okoro (2010) LPELR-4861 (CA) and Kanu & Sons Limited v. F.B.N. Plc (2006) 5 SC (Pt. III) 80, a Foreign Company carrying on business in Nigeria through a Nigerian subsidiary, is a separate entity from the subsidiary which cannot be responsible for the parent foreign company’s breach. In the alternative, it is contended that there was no factual basis for the Lower Court to hold that there was such relationship between the Appellants and B.V. Germany to give rise to liability and that the Lower Court, suo motu decided the relationship without evidence to support it. Section 338 of C.A.M.A. and FBIR v. Halliburton (WA) Limited (2014) LPELR-24230 (CA) were cited on what subsidiary company is and the Court is urged to reverse the Lower Court’s finding not supported by evidence on the authority of, among other cases, Fatunde v. Onwoamanam (1990) 2 NWLR (Pt. 132) 322 and Abdullahi v. F.R.N. (2016) LPELR-40101 (SC).

Once more, the Respondent was said not to have proved the tort of negligence as required by law nor the quantum of special damages and pre-judgment interest for the Lower Court to have entered judgment in his favour and reliance was placed on Uman v. Owoeye (2003) 9 NWLR (Pt. 825) 221, and Farasco Nigeria Limited v. P.Z. Ind. (2010) LPLELR-4142 (CA), in addition to other cases.

In conclusion, the Court is urged to allow the appeal, set aside the decision by the Lower Court and dismiss the Respondent’s counter claim with substantial costs.

The Respondent’s case is that the pre-inspection agent has a duty under the provisions of Section 1(5) and 2(1) of the PIIA to carry out the inspection of the goods to be imported into Nigeria by comparism between samples to be supplied by the seller and the goods with respect to quantity and quality and that the Lower Court was right that it was intended to protect the importer from fraudulent importation. According to Counsel, under Section 15 of PIIA, seller or oversea seller includes the exporter or supplier of the goods abroad who has the responsibility to supply samples to the pre-inspection agent. He said the duty imposed on the pre-inspection agent is to ensure that the goods correspond and meet the quality agreed between the oversea seller and importer before issuing the CRF, relying on Societe Generale Surveillance S.A. v. Rastico Nigeria Limited (1992) 6 NWLR (Pt. 245) 93, Cotecna Int. Limited v. Churchgate Nigeria Limited (2010) 18 NWLR (1225) 346.

According to Counsel, the Respondent opened the gloves after receiving the CRF on the belief that they met the quality he ordered and so cannot be accused of tempering with the gloves and that since the pre-inspection agent issued the CRF without comparism of samples with the gloves imported to Nigeria, it had breached the duty of care owed the Respondent. It is also the argument of counsel that under Order 9, Rule 5 of the Lower Court Rules, 2009 and by the shipping documents; Form M and Letter of Credit which were admitted in evidence as Exhibits X5, X4, W5, Exhibits Y and Z which were the CRF and Letters from the pre-inspection agent, all show that the pre-inspection CRF report was signed by the 3rd Appellant and that the evidence of Respondent and DW1 shows that the 1st Appellant took part in the transaction. He contends that the pleadings and evidence of the Respondent show that the Appellants are one and the same with the pre-inspection agent and so liable for their actions.

It is the further submission of Counsel for the Respondent that for proof of negligence, there need not be a contract or fiduciary relationship in order to show duty of care, citing Hedley Byne & Co. Limited v. Helter & Partners Limited (1964) AC, 46.

He said there was evidence that the gloves imported are of inferior quality from the re-inspection report; Exhibit X issued by 1st Appellant after inspecting the gloves in Nigeria and that the Respondent had pleaded the damages claimed in paragraph 82 of the counter claim and gave evidence to support it. In addition, Counsel said that interest in the case was on the basis that the Respondent was kept out of his money, on the authority of N.G.S. Co. Limited v. NPA (1990) 1 NWLR (Pt. 129) 741, Kano Text Printers Plc v. Tukur (1990) 2 NWLR (Pt. 589) 78 @ 84 and KSTA v. Offodile (1999) 10 NWLR (622) 259.

The Court is urged, in conclusion, to dismiss the appeal and uphold the decision by the Lower Court.

In the Appellants’ Reply brief it is said that the cases of Cotecna and Societe Generale are different from the case of the Respondent as they were decided on different statutes and that the 2009 Rules of the Lower Court do not apply to the case which was filed in 2000.

Further arguments on the joint liability of sister companies were made and it is maintained that the Appellants are not liable to the Respondent in respect of the counter claim.

From the arguments of the counsel for the Appellants, the complaints which form the pith of their case are that:-

(a) There is no direct relationship between the Respondent; as an importer of the gloves in question, and the pre-inspection agent appointed by the C.B.N for the pre-inspection of the gloves before the importation, so as to create a duty of care in favour of the Respondent, the Appellants say that the pre-inspection agent is not under any obligation and owes no duty of care, contractual or otherwise, to the Respondent as an importer.

(b) That the Appellants are separate entities registered in different countries from the pre-inspection agent and did not take part or participate in the inspection of the Respondent’s gloves before importation and so are not liable for any negligence by the agent in the inspection.

In its judgment, the Lower Court dealt with the issue of duty of care owed by the inspection agent to the Respondent by reverence to Section 3 of the PIIA to hold that because the importer pays for the inspection of his goods, there is an implied statutory duty of care imposed on the inspection agent in carrying out the inspection to ensure that the goods meet the quantity, quality and price set out in the import documents by comparism with the samples provided for the inspection. The Lower Court had reasoned thus: –

“Now concluding on the relationship between the 4th, 5th and 6th defendants, it is my respective view that they are not only subsidiaries of the Bureau Veritas of Germany but also its agents. To vindicate this view: The address for service is also the same address of the Bureau Veritas Germany is also the same address. Also, for their service in Nigeria Bureau Veritas Nigeria Limited the 4th Defendant, in their letter dated the 9th May, 1998 addressed to unique Marketing Company, for the attention of Mr. Nathan v. Ikeagu, the Counter-Claimant, the deputy Chief Liason Officer admitted that the 4th defendant and the Bureau Veritas Germany are the same. He stated:

On the relationship between the Appellants and the inspection agent, the Lower Court reasoned that:-

“In the instant case, the Relationship between the Bureau Veritas Germany and the 4th-6th defendants is one of a Foreign Company doing business in Nigeria, and in compliance with the provisions of Section 54, must apply to incorporate in Nigeria. Section 54 of CAMA provides as follows:-

1. Subject to Section 56-59 of this Act, every foreign Company which before or after the commencement of this Act, was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria shall take all steps necessary to obtain incorporation as a separate entity in Nigeria for that purpose, but until so incorporated, the Foreign Company shall not carry on business or exercise any of the powers of a registered Company and shall have a place of business or an address ran for service of documents or processes in Nigeria for any purpose other than the receipt of notices and other documents, as matter preliminary to incorporation under this Act.

In my respective view, the distinction drawn between a holding Company and its subsidiaries might be applicable under general circumstances as to their distinctiveness, but in respect to the relationship between a Foreign Company and its domestic counterpart in Nigeria, there is more in their legal Relationship or connection than can be distinguished; while a holding Company and its subsidiaries conduct spate business without overlap or Joint Cooperation, in the case of a foreign Parent Company and its domestic subsidiary, there are lots of cross border activities or engagement that could warrant or required a cooperative or an agency relationship, exposing the duo to Joint Legal Liability or to attribution of liability of one to the other.

Now concluding on the relationship between the 4th, 5th and 6th defendants, it is my respective view that they are not only subsidiaries of the Bureau Veritas of Germany but also its agents. To vindicate this view: The address for service is also the same address of the Bureau Veritas Germany is also the same address. Also, for their service in Nigeria Bureau Veritas Nigeria Limited the 4th Defendant, in their letter dated the 19th May, 1998 addressed to unique Marketing Company, for the attention of Mr. Nathan v. Ikeogu, the Counter-Claimant the deputy Chief Liason Officer, admitted that the 4th defendant and the Bureau Veritas Germany are the same. He stated:

Since your letter 27/03/98 addressed to our affiliates in Germany, our office in Hamburg has made further investigation on this file.

Our side, at your request, we have accepted to send our inspector for a rechecking of this consignment in two different places.

Once again we can only consider the original documents (Form M. Proforma invoice) approved by Societe General Bank. Our action was made within our mandate of Pre-shipment Inspection Agent.”

The above, no doubt effectively debunks the submission of Counsel concerning the inexplicable connection between. The 4th, 5th and 6th defendants to the Bureau Veritas Germany. And this also contradicts DW1’s attempted distinction between them.

In the circumstances, I hold that the 4th, 5th and 6th defendants are not only one and same body of Bureau Veritas Germany, but also they are bound and liable for their actions in this case.”

Beginning with Section 3 of the PIIA, it provides thus:

“Fees and duties payable by importers

(1) All importers shall pay into a special account designate for that purpose in the Central Bank, fees calculated as 1 per cent ad valorem of the FOB value of all imports assessed by the inspecting agent or such per centum of the FOB value of goods inspected as may be prescribed by the FGN from time to time, based on the exchange rate prevailing at the previous week of inspection as determined by the C.B.N.

(2) All duties assessed as payable by the importers in respect of goods inspected by the inspecting agent, shall be payable by the importers in accordance with procedures contained in the applicable guidelines, as may be issued by the F.G.N. as required and shall be based on the average autonomous rate of exchange of the previous we as determined by the C.B.N.”

Apparently, these provisions require the payment of fees by importers based on the inspection agent’s assessment/inspection of goods to be imported into Nigeria from outside the Country. The payment of the fees by the importers under these provisions is entirely predicated on and to be based on the assessment of the goods by the inspection agent. The provisions impose the statutory responsibility and obligation on the inspection agent to inspect the goods to be imported into Nigeria and so the duty of care to do so diligently and accurately in order to assess the fees payable by the importer and due to the Federal Government for the importation. Because the agent is appointed by the C.B.N. for the Federal Government for the purpose of the inspection and assessment of the fees due on the goods, there is the statutory and contractual duty on the part of the agent to exercise reasonable care and diligence in carrying out the inspection and assessment of the fees due for the goods. On the part the importer, the inspection agent also owes the implied statutory duty to the importer, under the provisions, to exercise reasonable care and diligence in the inspection and assessment of the fees because it is the importer who is to pay what was assessed by the agent as the fees due on the goods. Even though the importer did not appoint the inspection agent for the purpose of the pre-shipment or pre- importation inspection of the goods, yet, because the importer is eventually to pay for not only the fees to be assessed for the importation of the goods, by the inspection agent, but also for the inspection itself, the inspection agent owes the professional business, commercial and implied legal duty of care in the inspection and assessment of the fees due for the importation which directly affect the importer. In that context, the Lower Court is right that the general and broad objective of section 3 PIIA is to protect the importation of goods that do not meet the quantity, qualify and standards of agreed by the parties and ensure that appropriate prescribed fees for the importation are assessed and paid to the Government for the importation. The Act therefore aims to protect both the importer and the Government in the import business.

In the above premises, an inspection agent whose negligence in the pre-inspection of goods imported into Nigeria resulted into loss, injury or some other damages to the importer either in terms of quantity, quality and price or assessment of fees payable on the goods, cannot escape liability on the ground that there is no direct contractual or judiciary relationship between it and the importer or that there is no duty of care on its part in favour of the importer.

The position was stated in Societe Generale de Surveillance S.A. v. Rastico Nigeria Limited (supra) at page 97, that:-

“The importer in Nigeria relies on the skill and ability of the overseas inspection authority to provide a technical advice certifying that the goods shipped or to be shipped are of merchantable quality and if the inspection authority knows or ought to know that the importer will rely on such representation which turns out to be a misstatement a duty of care not to give a wrong representation which result in the financial loss or detriment of the importer relying on such expertise is placed on inspecting authority.”

The argument that an inspection agent owes no duty of care to an importer in the inspection of the goods to be imported in to Nigeria is therefore not tenable in law.

Furthermore, as pointed out by the Lower Court in the judgment, the pleadings and evidence of the Respondent as PW1 and that of the only witness for the Appellants, DW1, the Appellants and the Inspection agent are of the same group of Company which carries on business in Nigeria through the 1st Appellant and in other places; through the 2nd and 3rd Appellants. This is borne out by the correspondence used for the transaction between the inspection agent and the Appellants and in particular, the 1st Appellant’s letter dated 19th May, 1998 addressed to the Respondent in which the Chief Liason Officer stated, inter alia:-

“Since your letter 27/03/98 addressed to our affiliates in Germany, our office in Hamburg has made further investigation on this file. Our side, at your request, we have accepted to send our inspector for a rechecking of this consignment places.

Once again we can only consider the original documents (Form M. Proforma Invoice) approved by Societe General Bank. Our action was made within our mandate of Pre-shipment Inspection Agent.”

The Lower Court was therefore right to hold that the Appellants and the inspection agent are all part of the pre-inspection of the gloves ordered by the Respondent and imported into Nigeria and liable for the negligent conduct of the inspection which resulted in the importation of inferior quality gloves than ordered by the Respondent.

As demonstrated in the judgment by the Lower Court, the Respondent has set out specifically, the particulars of the damages suffered and claimed, in the counter claim in paragraphs 82, 83 and 84 of the Amended Statement of Defence and Counter-Claim which appear at pages 98-99 of the Record of Appeal. The Respondent gave evidence in line with the pleadings which was not effectively controverted by the Appellants and which, on the balance of probabilities, approves the claim as required by the law. See Section 134 of the Evidence Act, 2011, Eya v. Olopade (2011) 5 MJSC (Pt. II) 48, Military Governor, Lagos State v. Adeyiga (2012) MJSC (Pt. 1) 76, Adim v. N.B.C. Limited (2010) 9 NWLR (1200) 543.

The requirement of the law that special damages be specifically pleaded and strictly proved means no more than setting out facts which gave rise to the damages or loss suffered with sufficient particulars so as to make them easily quantifiable and ascertainable. The standard of proof of such damages remains on the balance of probabilities or preponderance of evidence, as required by the law and does not mean an unusual or extra ordinary standard of proof. Strabag Construction Nigeria Limited v. Ogarekpe (1991) 1 NWLR (Pt. 170) 733, Adim v. N.B.C. (Supra), Johnson v. Mobil Prod. Nigeria Unlimited (2010) 7 NWLR (Pt. 1194) 462, SPDCN Limited v. Tiebo VII (2005) 3-4 SC, 137.

With the sufficient proof of the negligence of the inspection agent who conducted the pre-inspection of the gloves ordered by the Respondent, vide Exhibit X; which was a re-inspection report after the importation into Nigeria, as well as the pleading and proof of the damages claimed for the loss suffered as a result thereof, the Lower Court was right in law to have found the Appellants liable and in awarding the damages against them.

In the final result, I resolve the issues canvassed by the Appellants in the appeal against them for lacking in merit. As a consequence, the appeal fails and is dismissed.

The judgment delivered by the Lower Court on the 6th of May, 2016 in Suit No. FHC/L/CS/953/98 in favour of the

Respondent is affirmed, accordingly.

There shall be costs assessed at N300,000.00 in favour of the Respondent to be paid by the Appellants.

IKYEGH, JCA

I had the honour of reading in print the robust judgment prepared by my learned brother, Mohammed Lawal Garba, JCA (Hon. P.J.), with which I agree with nothing extra to add.

OBASEKI-ADEJUMO, JCA

I have had the privilege of reading before now, the judgment just delivered by my learned brother, MOHAMMED LAWAL GARBA, JCA. I agree with the detailed reasoning therein to arrive at the same conclusion as the lower Court that the Appellants are liable for the negligent conduct of the inspection which resulted in the importation of inferior quality gloves different from what was ordered by the Respondent.

The appeal is accordingly dismissed and judgment of the lower Court upheld. I abide by the order as to costs and all other consequential orders.

Appearances:

B. Ademola Bello For Appellant(s)

C. I. C. Chukwendu with him, G. C. Ntor For Respondent(s)