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CaseLaw

Panalpina V. Olandeen Int. (2010) CLR 12(j) (SC)

Judgement delivered on December 10th 2010

Brief

  • Parties to an action
  • Order of court
  • Striking out order
  • Necessary party

Facts

The particulars of claim filed by J. B. Olandeen International Limited on the 19th of September 1990 as plaintiff before the Federal High Court Lagos reflected a claim brought jointly and severally against the 1st - 4th defendants, the owners of G & C Admiral, Masters of G & C Admiral, G & C Africa Line and Grimaldi & Cobelfret West Africa Roro Service, shippers and receivers of a cargo of 196 bags of red chillies from Tin Can Island Port Lagos to Antwerp, Bruxelles on board G & C Admiral. The 1st – 4th defendants were then sued for a breach of contract particularly based on the alleged negligence of the defendants resulting in the non-delivery of the cargo of red chillies to the importers of the plaintiff. The full cost of the goods including the cost of freighting was N229, 518.22k. The plaintiff supported this with a statement of claim in which the averments clearly stated the particulars of claim and the particulars of special damage vide pages 2-6 of the record.

In paragraphs 6-10 of the statement of claim, the plaintiff pleaded the role played by Panalpina World Transport Nigeria Limited as agent of the 1st – 4th defendants in using the vessel G & C Admiral in transporting the cargo of 196 bags of red chillies. Subsequently, the plaintiff on 15/3/91, precisely one year and eight months after commencement of the action before the Federal High Court, filed an application to join Panalpina World Transport Limited as the 5th defendant. The application was moved and granted on the 15th of March 1991. In the order made by the court - Panalpina World Transport Nigeria Limited was joined as co-defendant in the suit, all processes of court were served on the company - while it was simultaneously granted 30 days to file its statement of defence. Vide pages 18- 19 of the record. As 5th defendant, Panalpina World Transport Limited filed its statement of defence - vide page 23 of the record.

The plaintiff filed an application to amend its particulars and statement of claim. In the amended particulars of claim filed on 14/5/91, it alleged breach of contract flowing from non-delivery of 196 bags of red chillies and claimed full costs of goods including the cost of freighting and general damages, loss of business totalling N1, 469.518.22k. He gave the particulars of special damage in the amended statement of claim. The plaintiff pleaded that when the goods were delivered late and consequently rejected by the Belgian importers, the 5th respondent admitted the negligence of the defendants and offered to find buyers for the cargo of red chillies on behalf of the plaintiff. By a letter dated the 29th of May 1989, the 5th defendant authorised the plaintiff, through its bankers, to release its shipping documents. The plaintiff complied with the directive and on the 6th of June 1989, the plaintiff's bankers sent a telex to their London office directing that all shipping documents in the transaction be released to Panalpina World Transport S.A. Hoar Derlanna. Vide pages 12-17 of the record.

TThe 1st - 4th defendants filed their statement of defence on 11/2/91. They denied therein paragraphs 13-14 and 15 of the statement of claim and averred that Panalpina World Transport (Nig.) Ltd. was an agent of the plaintiff in the cargo freight transaction as well as an agent of the 1st - 4th defendants. The alleged offer of Panalpina to find alternative buyer for the plaintiff's cargo was not with the knowledge, instruction, or consent of the defendants but was done if at all, by Panalpina as agent of the plaintiff.

In the statement of defence filed by the 5th defendant, Panalpina World Transport Limited - it denied paragraphs 8, 9,10, 11, 12, 13, 14, 15, 16, 17, and 18 of the statement of claim vide page 23 of the record. However in the court proceedings of the 4th of July 1999, immediately after recording the appearance of counsel, the court suo motu struck out the name of the 5th defendant - the appellant in this appeal as a party in the suit before the trial court. The court's order to that effect reads:-

  • "Having read the amended statement of claim of the plaintiff and particularly the admitted fact by the plaintiff in para 6 thereof that the 5th defendant joined by order of court was an agent of disclosed principals i.e. the defendants, the plaintiff has no cause of action against the 5th defendant. The plaintiff has already sued the disclosed principals. In the circumstance, the court suo motu hereby strike out the name of the 5th defendant with N100.00 costs against the plaintiff in favour of the 5th defendant."

    • The matter proceeded to trial thereafter. At the conclusion of trial, the court dismissed the case of the 1st respondent. Aggrieved by the decision of the trial court, the 1st respondent appealed to the Court of Appeal. Thereafter, the 1st respondent, as appellant in the Court of Appeal filed an application to join the appellant as a party to the appeal. On the 10th of June, 1996, the Court of Appeal refused the application on the ground that there was no issue in the appeal relating to the appellant and as such it would not be affected by the result of the appeal.

    The 1st respondent, still as the appellant in the Court of Appeal, later sought and was granted leave to file two additional grounds of appeal which touched on the activities of the appellant in the whole transaction and the wrongfulness of the trial court.

    On the strength of the new amendment, the 1st respondent, as appellant in the Court of Appeal, filed another application on 9/11/98 to join the appellant to the appeal before the same Court of Appeal. The appellant opposed the application on the grounds inter alia that a similar application had been dismissed earlier by the Court of Appeal. The Court of Appeal however joined the appellant as a party to the appeal.

    Being aggrieved by the ruling, the appellant appealed to the Supreme Court.

Issues

  • 1
    Whether the appellant was originally party to the proceedings at the...

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