- CORONA SCHIFFAH-RTSGESELLSCHAFT MBH AND COMPANY (“THE OWNER OF M.V CONCORDIA”
1. EMESPO J. CONTINENTAL LIMITED
The respondent commenced an action in personam against C.M.B.S.A who were described as the owners of “M.V Concordia” and Umarco Nigeria Plc. As first and second defendant respectively. The respondent’s claim was for breach of contract and/damages for negligence for the short delivery of 12715 piece of diverse motor spare parts stored in a container and laden on Boardo the “M.V Concordia.
The two defendants filed an application to strike out their names from the suit claiming that they were only charterers and agents of the vessel respectively. The respondent later filed an application to delete the words “Owner of M.V Concordia” appearing under the name of the 1st defendant, from the writ and an order to join the appellant CORONA SCHIFFAH-RTSGESELLSCHAFT MBH AND COMPANY, as the 3rd defendant. The trial court eventually struck out the name of the 1st and 2nd defendant
Upon discovery of the joinder, the appellant filed an application to set aside its joinder as a defendant in suit as well as to strike out or dismiss the suit on the ground that it was statute-barred not having commenced within one year. The trial court refused the application
The appellant was dissatisfied with the decision of the trial court and he appealed to the Court of Appeal
Article 3 rule 6 of the Rules relating to Bill of Lading made pursuant to the Carriage of Goods by Sea Act Cap. 44, Laws of the Federation of Nigeria, 1990, states thus-
Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damages be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.
The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint surveyor inspection.
In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.
In the case of any actual or apprehended loss or damage, the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods
1. It is in the bill of lading that the terms of the contract of carriage of goods by sea are to be found.
2. By virtue of Article 3 rule 6 of the Rules relating to Bill of Lading made pursuant to the Carriage of Goods by Sea Act Cap. 44, Laws of the Federation of Nigeria, 1990, the carrier and the ship shall be discharged from all liability in respect of loss or damage unless a suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. In the instant case, since the goods were delivered. To the respondent on or about 18th or 19/10/91, time began to run for the purpose of computation of time from 19/10/91. Thus, the cause of action became time barred twelve months thereafter on 19/1092. As the application to join the appellant as a party was not made until 3/1/94 and the order granting the application on 3/3/94, they were both caught by the foregoing provision of the Rules and thus time-barred.
The question of period of limitation of actions is not a matter of practice and procedure but rather one of law as contained in the relevant statutes. This is because once an action is caught by statute; the court has no jurisdiction to entertain the matter. There is then a feature in the case which prevents the court from exercising its jurisdiction because the condition precedent to the exercise of that jurisdiction is not yet fulfilled. In the instant case, the trial court erred in refusing the application to set aside the joinder of the appellant as a defendant as same is invalid, the claim being unenforceable having been caught by statute of limitation.