Unpaid Wages Of Crew Members: Case Review Of The Vessel Mt Sam Purpose (Ex Mt. Tapti) & Anor V Amarjeet Singh Bains & 6 Ors

By T.A.M Damiari Esq

*Abstract

The recent decision of the Court of Appeal in the case of The Vessel MT Sam Purpose (Ex MT. Tapti) & Anor v Amarjeet Singh Bains & 6 Ors to the effect that only the National Industrial Court can entertain matters on wages of crew members, has brought to the front burner the need for a reexamination of the jurisdictional scope of the duo of Federal High Court and National Industrial Court in the light of constitutional provisions, particularly as it relates to maritime labour claims. The paper critically reviewed the decision of the Court of Appeal against the backdrop of settled constitutional provisions, denoting admiralty jurisdiction to the Federal High Court and found that the court in arriving at its decision neither took proper cognizance of the provision of section 251(1)(g) of the Constitution  nor settled guiding principles in interpretation of constitutional provision. The work however recommends that despite a somewhat consensus on the desirability of a legislative intervention on the one part and judicial intervention vide concurrence of jurisdiction for the duo courts on the narrow compass of labour-related maritime claims on the other part, the present tenor of section 251(1)(g) as well as other maritime legislative framework, should be given efficacy as denoting exclusive jurisdiction to the Federal High Court on maritime labour matters, inclusive of claims of unpaid wages of crew members.

Key words: crew wages, admiralty, maritime, labour disputes, exclusive jurisdiction, National Industrial Court, and Federal High Court.

INTRODUCTION 

Jurisdictional struggle between courts of coordinate jurisdiction is not new.¹ In Nigeria, we have had our fair share of jurisdictional wrangling, particularly as witnessed at the climax of the jurisdictional struggle between Federal High court and the State High Court on the unlimited subject matter jurisdiction of the latter.²  The jurisdictional debacle between the Federal High

* T.A.M Damiari Esq is a Lagos based legal practitioner and can be reached vide his email address – temple.damiari@nigerianbar.ng.

• In the United Kingdom, the High Court of Admiralty at some point in history had to wrestle with the common law courts on jurisdiction over maritime matters, leading to the passage of two Statutes in the reign of Richard II. Eventually, at the end of the reign of William IV in the 1830s, the jurisdiction of the Admiralty Court was retained in matters such as droits of Admiralty (wrecks at sea, which were the Admiral’s property rights), collisions, salvage, possession of ships, bottomry (now almost obsolete) and seamen’s wages¹ (emphasis mine). See Aleka Mandaraka-Sheppard, Modern Maritime Law Volume 1: Jurisdiction and Risks, 3^rd edn, (Informa Law from Routledge, New York: 2013), p2 and Halsbury’s Laws Vol 93 (2008) 5th edn, para 80.
• There was jurisdictional conflict between the Federal High Court and State High Court between 1979 and 1987 culminating in the decision of the Supreme Court in the case of Savannah Bank Limited v Pan Atlantic Shipping & Transport Agencies & Anor [1987] 1 NWLR (Pt. 49) 212 to the effect the unlimited jurisdiction of the State High Court would be subject to the exclusive jurisdictional competence of the Federal High Court on specific subject matters listed in section 251, which includes admiralty jurisdiction. See also Jamal Steel Structures Co. Ltd v African Continental Bank Ltd (1973) 1 ALL NRLR (Pt 2) 208, American Intl Inc. Co. v Ceekay Trading ltd (2001) FWLR (Pt. 47)1163 and Bronik Motors Limited v Wema Bank Limited (1983) 6 S.C. 158.

Court and National Industrial Court got to its peak with the recent decision of the Court of Appeal in the case of The Vessel MT Sam Purpose (Ex MT. Tapti) & Anor v Amarjeet Singh Bains & 6 Ors^[1] (hereinafter referred as MT Sam Purpose), which is to the effect that by virtue of section 254C(1) of the Constitution,^[2] the National Industrial Court has jurisdiction to entertain matters relating to unpaid  crew wages. Admittedly, this is not the first case^[3] on this issue of law, however, the judgment, having emanated from the precincts of the Appellate court, has now elevated^[4] this issue of law, albeit, demanding interrogation of the decision in the light of section 251(1)(g) of the Constitution and other legislative frameworks, denoting jurisdiction to the Federal High Court on admiralty matters.   The bar and the bench are divided on the effect of the judgment.^[5] Depending on the divide one pitches with in the debate, the judgment has brought with it some controversies demanding urgent answers.

This work will critically review the judgment of the court in the light of constitutional provisions and maritime legislative frameworks and showcase the flaws in the judgment with a view to proffer possible solutions on a proper construction of the affected provisions to mitigate the adverse effect of the judgment in Nigeria’s critical maritime sector.

The paper is divided into five parts. The first part looks at the facts and implication of the judgment in the maritime sector. The second part takes on a critique of the judgment, x-raying the flaws in the approach adopted by the court and interrogating same in the light of sections 251(1)(g) and section 254C(1)of the Constitution.  The author proffered solutions in the fourth part and concludes with a call for purposive and expansive interpretation of section 251(1)g of the Constitution to be applied in interpreting the constitutional provisions and other maritime legislative frameworks to give effect to the exclusive jurisdiction of the Federal High Court on maritime matters, including crew wages.

BRIEF BACKGROUND OF FACTS      

The Respondents as Plaintiffs at the Federal High Court, in an action in rem, sought several reliefs against the Defendants/Appellants bordering inter alia on crew wages, cost of Admiralty Marshall expenses, cost of arrest and detention of Vessel. As customary in admiralty actions, the Respondents accompanied the originating process with an exparte application seeking among others the arrest and detention of the vessel, MT Sam Purpose, pending the provision of a satisfactory bank guarantee to secure the Respondents’ claim. The application for the arrest of vessel was granted by the Court. The Appellants subsequently entered conditional appearance, challenging the jurisdiction of the court while relying on section 254C(1) (a) and (k) of the constitution and applied to discharge the order of arrest of vessel and strike out the suit for want of jurisdiction. The Trial court refused the Appellant’s application, leading to an interlocutory appeal to the Court of Appeal. The Court of Appeal upheld the Respondents’ interlocutory appeal, set aside the order of arrest and struck out the suit for want of jurisdiction. ^[6]

JUDGMENT 

In upholding the Respondents’ interlocutory application, the Court of Appeal held that Section 254C(1) of the Constitution confers exclusive jurisdiction on National Industrial Court over maritime labour related matters, inclusive of crew wages. According to the Court, Section 2(3)(r) and 3 of the Admiralty Jurisdiction Act, which conferred similar jurisdiction on the Federal High Court, was void to the extent of its inconsistency with the Constitution whilst relying Section 1(3) of the Constitution.

IMPLICATIONS OF THE JUDGMENT

By the judgment, the under listed issues of law would appear to have been settled, though without prejudice to the apex court to upturn the decision in the event of a successful appeal.

1. Labour matters i.e appointment, condition of service, remuneration, termination of employment of crew or seamen in vessels are by virtue of section 254C(1) of the Constitution, within the jurisdictional competence of the National Industrial Court.
2. Aggrieved seamen are now required to approach the National Industrial court to ventilate grievances on unpaid crew wages. The judgment was however silent on how a Plaintiff in an action in rem before the National Industrial Court would arrest a vessel as customarily done in claims for unpaid wages. With this uncertainty, on how the National Industrial Court can grant an order for a Plaintiff to be able to arrest a vessel, the traditional pre-judgment security vide arrest of vessels, may seem to have been rendered otiose.
3. Section 254C(1) has covered the field with regards to labour-related maritime subject matters. The decision may on its face value appear to have broadened the reach of section 254C(1) to any claims by employees in respect of anything that arose from or is in connection with a ship.^[7]
4. Despite the provisions of sections 2(3) r and 5(3)(c ) of the Admiralty Jurisdiction Act and section 91 of the Labour Act, the Federal High Court cannot exercise jurisdiction over labour-related maritime claims, as those provisions of the legislations have been held to be inconsistent with section 254C(1) of the Constitution by virtue of section 1(3) of the Constitution.

CRITIQUE OF THE JUDGMENT a. Maritime Actions in rem have been rendered otiose by the judgment

The decision of the Court of Appeal has somewhat extinguished or made otiose the right of seafarers to exercise special in rem procedure of arrest of vessel unique to admiralty jurisdiction.

The foundational twin pillars upon which maritime law and practice is erected, are the rights it bestowed on a Plaintiff not only to institute an action in rem against a res^[8] but also the right to arrest that vessel or in some cases a sister vessel as a pre-judgment security in satisfaction of the claim giving rise to the maritime lien. There is also a right to proceed in personam against the owners of the vessel. It is this bifurcated stance that have conferred a sui generis status^[9] to admiralty law and guaranteed international shipping markets over years. The above position has enjoyed both local and international judicial recognition^[10] in order to protect seafarers who may perhaps be of a foreign nationality with some form of certainty or security in addition to preventing the absconding of a vessel from the jurisdiction of the Court.

With the above judgment, this special in rem action is now threatened as crew members may be unable to seek the arrest of a vessel in an action in rem before the National Industrial court. It is submitted that the National Industrial Court is not statutorily empowered to either entertain maritime actions in rem or give an order for the arrest of vessels.

Crew wages are categorized under maritime liens^[11] capable of enforcement under a maritime claim. Thus, by sections 2(3)r and 5(3)c of the Act, claims by a master or member of a crew form part of maritime claim capable of enforcement through an action in  rem coupled with the exercise of the right of an arrest of the res as pre-judgment security.^[12] Section 66 of the Merchant

Shipping Act^[13] provides that “the following claims shall be secured by maritime liens on the ship – (a) wages and other sums due to the master, officers and other members of the ship’s complement in respect of their employment on the ship.” A combined reading of the provisions of section 2(3)r and 5(3) of Admiralty Jurisdiction Act, section 66 of the Merchant Shipping Act and section 91 of the Labour Act, will leave no one in doubt of the statutory recognition of  crew’s claims as attracting a maritime lien^[14] and that the Federal High court not National Industrial Court, is the appropriate court to exercise in rem action.

It is submitted that so long as the decision seem to have obfuscated^[15] the scope of this settled rights in rem with its attendant right of arrest, it has rather aggravated the tension and uncertainty in this area of law.

1. A literal interpretation of sections 251 (1) (g) and 254C(1) (a) and (k) did not exclude the maritime labour claims from the jurisdictional scope of the Federal High Court.

A good starting point is with extracting the provisions of section 251(1)(g) and  section  254C(1)(a) and (k) of the Constitution.

Section 251(1) –

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 and matter-

…..

(g)- ANY ADMIRALTY JURISDICTION, including shipping and navigation on the River Niger or River Benue and their affluent 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 ports authorities for federal ports) and carriage by sea; (emphasis mine)

Section 254C(1)(a) and (k)of the Constitution provides as follows:

Notwithstanding the provisions of sections 251, 257, 272 and anything 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 National  Industrial Court shall have and exercise jurisdiction to the exclusion of any  other courts in civil causes and matters.

(a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employees, workers and matters incidental thereto or connected therewith

…

(k) relating to or connected with disputes arising from payment or  nonpayment of salaries, wages, pensions, gratuities, allowance, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of  the Federation and matters incidental thereto. (Emphasis mine)

At page 17 of the judgment, the Court started off its analysis by stating as follows “therefore, the interpretation to be given to the above provision of the Constitution is the literal approach as the draftsman did not mince words. Section 254C(1) of the Constitution is clear and unambiguous.” Certain basics must be clarified from the onset. It is submitted that if literal interpretation is anything to go by, firstly, neither sections 251(1)(g)^[16] nor 254C could be said to have made any direct reference to unpaid wages of crew or seafarers to warrant the invocation of a literal rule of interpretation.  Admittedly, section 254C (1) (a) – (m) makes it clear that the National Industrial Court has exclusive jurisdictional competence on all labour relations or related matters and mentioned ‘wages’ on the face of it, there is however nothing in that section that is suggestive of a reference to wages of seafarers or seamen. Secondly, in the absence of a direct or clear reference to crew wages of seafarers on vessels in the section, the reliance on a literal interpretation, which ought to have been deployed for only clear and unambiguous provisions, becomes questionable.  Thirdly, section 251(1)(g) reference to ‘any maritime jurisdiction’, which undoubtedly would include crew wages and other facets of the thalassic aspect of law, would on equally face value, appear inadequate to justify a literal interpretation, due to the absence of crew wages in the section.

Assuming without conceding that a literal interpretation was desirable, it is submitted that the court could not have resorted to a literal interpretation of section 254C(1) (a) and (k) but presumable ignored a literal interpretation of section 251(1) and its sub paragraph (g). The Court would seem to have approbated and reprobated in not forcefully employing the similar literal rule of interpretation used in section 254C(1) in interpreting the provision of section 251(1).

Section 251(1) used the same exclusionary word “notwithstanding” in section 254C(1) in its opening sentence of the section. It follows that the case of NDIC v OKEM Enterprises¹⁹  relied upon by the Court in favour of the word ‘notwithstanding’ as constituting an exclusionary effect in section 254C(1) would apply mutatis mutandi  in favour of 251(1). Section 251(1) excludes anything contained in the entire constitution (i.e from section 1 to the last provision of the Constitution). By implication, Section 254C(1) of Constitution is included in the sections excluded in section 251(1). Similar argument inures in favour of subsection (g) of 251 in its use of the phrase ‘any admiralty jurisdiction’. The use of ‘any’ in 251(1)g is all encompassing, admitting of no limitation from any subsequent or prior provision in the constitution.

It is submitted that section 251(1)g  having taken the carpet off the feet of section 254C(1) by expressly excluding the said section 254C(1) from limiting the  jurisdictional scope of the Federal High Court in any admiralty jurisdiction, Section 254C (1) cannot be relied upon to exclude any subject matter bestowed in section 251(1) subparagraphs, inclusive of matters of unpaid wages of crew members or seafarers. To put it succinctly, National Industrial Court cannot take away any admiralty jurisdiction denoted by 251(1)(g) to the Federal High Court as the exclusionary provision of section 251(1) did not only cover that field but perpetually barred the National Industrial Court from such futile exercise.  As far as admiralty jurisdiction is concerned, Section 254C (1) had nothing to extricate from section 251(1)(g). Section 254C(1) cannot be founded upon to exclude from the Federal High Court any subject matter jurisdiction  over unpaid wages of seamen or seafarers.

It is submitted that the court failed to refer to any rule or principle of law upon which it based its  supposed preference for the limiting word – ‘notwithstanding’ contained in section 254C(1) as overriding, overreaching or taking precedence over  the similar limiting word in the earlier section 251(1). What were the measuring tools or barometer used by the Court in determining which limiting word in the two sections with more exclusionary imputation than the other?  There was absolutely no justification for the ‘pick and choose’ approach employed by the court in that regard.  Such distinction, in this context is, with respect, a tenuous one.

Had the Court averted its mind to the above, it would have clearly seen that a literal interpretation from the onset was bound to produce manifest absurdity. Having commenced on such wrong footing, it was readily anticipated that the erected structures founded on this faulty bulwark (inclusive of comparison of legislations), would crash. With due respect, there was absolutely no need for the unwarranted expedition in considering a perceived inconsistency of Admiralty Jurisdiction Act on the one part and section 1(3) and 254C of the Constitution on the hand.  With due respect, the Court in a rather ingenious attempt to avoid the efficacy and applicability of section 251(1)(g) of the Constitution on the subject matter, embarked on a needless voyage by discountenancing the provision  of the principal  labour legislation, Labour Act  and its provision in section 91  (which excluded seamen from definition of workers). It was also unnecessary to avoid references to the provisions of the Merchant Shipping Act dealing with wages of seamen and jettisoning the provisions of section of 2 (3)(r) and 5(3) of the  Admiralty Jurisdiction Act for supposedly conflicting with section 254C(1).

1. The Court failed to employ the timeless principles of interpretation of constitutional provisions in interpreting the provisions of sections 251(1)g and 254C.

The court failed to abide by the admonition of the Bench expressed in case laws which has admonished expansive and purposeful interpretation of provisions of the constitution to advance the object and purpose of the Constitutional particularly, when the words are not clear as in the instant case.^[17]

In Rabiu v. Kano State,²¹ Udo Udoma JSC stated inter alia:-

My Lords, it is my view that the approach of this court to the construction of the constitution should be, and so has been, one of liberalism probably a variation on the theme of the general maxim ut re magi valeat quam pereat. I do not conceive it to be the duty of this court so to construe any of the provisions of the constitution as to defeat the obvious ends the constitution was designed to serve where another construction equally in accord and consistent with the words sense of such provisions will serve to such ends.

In Attorney General of Bendel State v Attorney General of the Federation,²² Obaseki JSC set out

12 rules of interpretation of constitution, to wit,

1. Effect should be given to every word used in the Constitution.
2. A Constitution nullifying a specific clause in the Constitution shall not be tolerated unless where absolutely necessary.
3. A constitutional power should not be used to attain an unconstitutional result
4. The language of the Constitution, where clear and unambiguous must be given its plain and evident meaning.
5. The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety hence a particular provision should not be severed from the rest of the Constitution.
6. While the language of the Constitution does not change the changing circumstances of a progressive society for which it was designed, it can yield new and further import of its meaning. A constitutional provision should not be construed in such a way as to defeat its evident purpose.
7. Under the Constitution granting specific powers, a particular power must be granted before it can be exercised.
8. Declaration by the National Assembly of its essential legislative functions is precluded by the Constitution.
9. Words are the common signs that men make use of to declare their intentions one to another, and when the words of a man express his intentions plainly, there is no need to have recourse to other means of interpretation of such words.
10. The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used should measure the purpose and scope of its provisions. Words of the Constitution are, therefore, not to be read with “stultifying narrowness.” (emphasis mine)

The Supreme Court in the case of Elelu-Habeeb & Anor. v AG Federation & Ors,^[18] adopted the said twelve principles as a guiding light in the interpretation of constitutional provisions in that case.   In Ishola  v Ajiboye,²⁴  the Supreme Court per Ogundare JSC added additional four guidelines, to wit, constitutional language used in a provision to be given  reasonable construction, and absurd consequences are to be avoided; constitutional provisions dealing with the same subject matter are to be constructed together; seemingly conflicting parts are required to be harmonized, if possible, so that effect can be given to all parts of the Constitution; and an article or clause in the Constitution influences its construction. The Supreme Court in the case of Skye Bank PLC v Iwu^[19] reiterated the above principles and admonished for a broadened interpretation of the Constitution in order not to do violence to its letters and spirit.^[20]

It is submitted that had the court reminded itself of the above admonition and guiding principles set out by the apex court, it would have employed a purposive and liberal interpretation in interpreting the constitutional provisions in order to harmonize, give effect and validity to the objective of the draftsmen in section 251(1)g of the constitution, to wit, bestowing exclusive jurisdiction on maritime labour matters to the Federal High Court.

d.      The Court of Appeal failed to give proper construction to Section 254C(1) b and 91 of the Labour Act 

The Court of Appeal faulted the Trial Judge’s incorporation of section 91 of the  Labour Act by virtue of section 254C(1)(b) and held that the court raised and addressed an issue  without giving parties opportunity to respond. The position of the Court of Appeal in this regard, with due respect is wrong. Firstly, it is not true that parties were not given an opportunity to address the court. It is submitted that the entirety of Section 254C(1) was already before the court, parties were at liberty to address the court on the 254C (1) (a) and (k) by referencing  any other subsection in that 254C (1) that explains or throws light on the subsections, which were subject of the preliminary objection. In same light, the Judex will not in considering section 254C(1) (a) and (k),  shut its eyes to subsection (b) which not only threw  more light on the provisions of (a) and (k), but significantly helpful in resolving the issue submitted to the court. Secondly, incorporating the provision of the Labour Act pursuant to section 254C(1)b of the Constitution was the  most  profound and commendable judicial exercise by the Judge and same is backed by the constitution and case laws.

Assuming the provision of 91 (1) f of Labour Act was enacted by the draftsman merely to prevent a potential conflict between Labour Act and Merchant Shipping Act, being that the latter has more comprehensive provisions on seamen and all related issues pertaining to them, the implication of the judgment in holding section 254C(1)b inapplicable is to the effect that  all the statutes listed  in section 254C(1) b, cannot be relied upon in maritime labour matters. For instance, the court seem to be saying that section 254C(1) b are inapplicable to maritime  labour related matters.^[21] The implication of this far reaching pronouncement is that  the legislations listed in section 254C(1)b such as Factories Act, Trade Dispute Act, Labour Act, Employees Compensation Act or any other Act or Law relating to Labour, employment industrial relations, workplace or any enactment replacing the Acts or laws, cannot be relied upon in maritime labour claims. With due respect, this further compound the so-called jurisdiction now vested on the National Industrial Court in maritime labour matter.^[22] It clearly amounts to an act of standing logic and law upside down. With this judgment, cases such as Assurance Foreingen  Skuld v MT Clover Pride^[23] involving  negligence, which in regular labour matter, fits into claims under Employee’s Compensation  Act, would have been sounded the death knell. The above case would be treated in detail below.  With due respect to the Law Lords, holding that section 251(1)b  of the Constitution and by extension  section 91 of the Labour Act,  was inapplicable, is erroneous.

It is submitted that the jurisprudence of incorporating provision of legislation in a constitutional provision, has remained one of the cherished outplay of our constitutional law.  It has been sparingly deployed in the past by the courts in saving rights protected and guarded by the sacrosanct provisions of the constitution. In Abia State University, Uturu v Anyaibe,^[24]  the court in order to re emphasis the sui generis nature of fundamental human rights and superiority of the rights contained in chapter 4 of the Constitution (as amended), elevated by incorporation the Fundamental Rights (Enforcement and Procedure) Rules  and held that its provision (which incorporated chapter 4 provisions) “have the force of law as the Constitution itself; and overrides the provisions of any other enactment to the contrary. In which case, such a provision has equal force of law as the Constitution itself.”^[25]

It is trite that jurisdiction is confirmed by the constitution or statue and the rules of court only set out the procedural template used in exercising the right so confirmed. It is difficult to agree with the court on how section 254C(1) clearly intended National Industrial Court to exercise jurisdiction over wages and yet no mention of words like ‘crew’, ‘vessel’ or  ‘admiralty’ in the entirety of the recently amended  section 254C(1) nor were such words employed in the recent National  Industrial Court Rules.^[26] It is even more curious that the principal legislation in labour law, Labour Act, in section 91, clearly excluded seamen from the definition of workers.   All the principal legislations^[27]  in the maritime sector have no reference to the National Industrial Court, this is because maritime labour and seaferers claims were never intended to be adjudicated upon at the National Industrial court. It will be doing violence to the section 251(1)g of the Constitution to hold otherwise. It is immaterial that the word ‘wages’ was used in section 254C and such reference to ‘wages’ without regard to the context of admiralty, does not ipso facto confer jurisdiction on National Industrial Court over wages of crew members.^[28]

Had the Court of Appeal properly construed section 254C(1)b of the constitution vis a vis the limitation placed by section 91 of the labour Act on seamen, it would not have fallen into this grave error it did.

1. The Court of Appeal faulted the Trial Court’s failure to follow an earlier persuasive case of Assurance Foreingen Skuld v MT Clover Pride^[29] which decided a similar issue of law.

In that case, the Court held the National Industrial Court is imbued with the jurisdiction to deal with an action for unpaid crew wages. The learned jurist further held that sections 1 and 2 of the Admiralty Jurisdiction Act are inconsistent with section 254C of the Constitution regarding a claim for crew wages. The Judge relied on the literal rule of interpretation in arriving at its judgment. With due respect to the Learned Judge in this case, the National Industrial Court by section 254C of the Constitution is not denoted with the powers to entertain actions on unpaid crew wages as already been extensively argued in this work. The resort to a purported literal rule of interpretation by the Trial Judge in that case apparently to defeat section 251(1)(g), with due respect, was erroneous.

More so, there was an earlier judgment of the court preceding the MT Clover Pride where the Federal High Court upheld the jurisdiction of the court over crew wages. The court ought to have been persuaded^[30] by that decision in assuming jurisdiction in the case.  In Moe OO & 26 Ors v MV Phuc Hai Sun,^[31] the plaintiffs, who were crew members of the vessel MV Phuc Hai Sun, brought an application pursuant to Order 17 of the Admiralty Jurisdiction Procedural Rules 2011. The plaintiffs applied that the Court determine the priority of the plaintiffs’ claim against the defendant on the basis that a claim for crew wages attracted a maritime claim in preference to other claims. A secured creditor of the defendant owners, Vietcom Bank, challenged the Court’s jurisdiction to entertain the claim on the ground that it was an action for crew wages.  In a concise and brief ruling, the Court held that the National Industrial Court does not have jurisdiction in matters relating to unpaid crew wages. The Court stated that the provision of section 254C(1) of the 1999 Constitution does not apply to claims by crew members onboard a vessel on a voyage to Nigeria and whose crew members are not Nigerians.

It is submitted that the Trial Judge in MT Clover Case ought to have followed the persuasive decision of the court in MV Phuc Hai Sun. It is however agreed that the Trial Court in Mt Sam Purpose ought to have shown why he would not been bound by the earlier judgment of Idris J (as he then was) in MT Clover Pride.  In the case of Akuroma Dawarikibu Stephen v Seateam Offshore Limited,^[32] the Plaintiff sought a declaration amongst others that it was the negligent act of the Defendant that caused the Plaintiff’s ill health which was deteriorating as a result of lack of proper medical care, rendering the Plaintiff incapacitated and not able to work. The National Industrial Court in assuming jurisdiction over the subject matter held that the provisions of  section 2(3)(c) and (r) of the Admiralty Jurisdiction Act 1992 and section 251(1)(g) of the 1999 Constitution (as amended) are in conflict and by section 1(3) of the Constitution. Section 2(3) sub-paragraphs (c), (d) and (r) of the Admiralty Jurisdiction Act were declared void to the extent of their inconsistency with section 254C of the 1999 Constitution.

Commenting on the above case, A.A Olawoyin^[33] stated that “the question of whether the particular claim would be regarded as a maritime claim or not depends on the capacity in which the claimant is suing. If the claimant is suing to enforce the rights relating to or arising from employment, it does not matter that the circumstances of the cause of action arose on a vessel. The National Industrial Court would presumptively be that appropriate forum to institute that action relating to or connected with labour, employment including health, safety and welfare of employees and workers.”

With due respect to the above court and the learned silk, there was no need for a consideration of a supposed conflict between the Admiralty Jurisdiction Act and section 254C(1), when the starting point would have been a consideration of the contours of the jurisdictional scope set out in section 251(1)(g)  of the Constitution, which admits of no limitation from prior or subsequent provisions of the Constitution. More so, an expansive interpretation of the provision would have set the coast clear for a proper interpretation of section 254C(1) of the Constitution. The earlier submissions in the preceding paragraphs are reiterated in buttressing this point.

Additionally, in the Stephen’s case, the Plaintiff neither joined the ship in rem nor sought its arrest. In any event, assuming a conflict actually existed between the provisions of section 2 of the Admiralty Jurisdiction Act and section 254C(1) of the Constitution, it is submitted that the existence of such conflict or  even a purported striking down of such provision of the Admiralty Jurisdiction Act by the Trial judge, would still not have delimited or tampered with the admiralty jurisdiction denoted to the Federal High Court under  section 251(1)(g).

It is further submitted that if the interpretative approach used in Stephen’s case is deployed in all maritime cases, it would be difficult to draw the line where the maritime labour jurisdiction of the NIC begins and ends, as all claims having the slightest involvement of a dockworker or seafarer, would automatically pass for a matter connected and related with maritime labour within the jurisdiction of the National Industrial Court. This definitely would not be the intendment of the draftsmen.

It is ironical that the court having found, howbeit, in the view of the author, erroneous, that the National Industrial Court is the appropriate court to entertain the case, the court made no order of transfer of the case to the National Industrial Court in the exercise of its powers^[34] as the court earlier did in the case of John v Igbo –Etiti LGA,^[35] cited and relied upon by the Appellant in the MT Sam Purpose case.

RECOMMENDATIONS

With the far-reaching implication of the judgment for the maritime sector, there is consensus by investors and stakeholders on the need for an urgent response to the issues thrown up by the judgment. Some have suggested legislative intervention^[36] by way of alteration of the Constitution and legislations such as Admiralty Jurisdiction Act, Labour Act, and Merchant Shipping Act etc to lay the jurisdictional debacle to rest.

Whilst it is admitted that a legislative intervention is desirable, it is submitted that the present tenor of section 251(1)(g) of the constitution, can be founded upon to confer exclusivity of maritime labour related jurisdiction on the Federal High court. Similarly, although the calls for concurrency^[37] of jurisdiction between the Federal High Court and National Industrial court on the narrow compass of maritime labour matters may readily appear as a respite from the present quagmire, it is submitted that purposive and expansive interpretation of sections 251(1)g and 254C(1)b of the constitution,  in the light of the admonitions of the apex court earlier referred to  on interpretative approach to constitutional provisions,  would have saved the maritime sector, particularly seamen, from this hapless and precarious state foisted by the judgment.

The court must always bear in mind the cherished sui generis nature of admiralty jurisdiction, which has over years created a kind of balanced legal order in international business expectations, arrangements and practices in the maritime sector, whilst arming Plaintiffs, inclusive of seamen, with assertive rights over vessel and ship owners in special ways. Shipping, of all industries, is the most international. It has to be viewed, therefore, not from a narrow national or indeed nationalistic viewpoint, but against the broad sweep of world developments, particularly in the trade sector.^[38] From the review, there is sufficient basis to contend at the apex court that the present judgment is perverse in the light of the above issues raised in this review.

It is further suggested that in future cases with grave constitutional effect, particularly, such that would cede jurisdictions from a court to another, with attendant consequence to international trade and commerce, the timeless judicial process of  ‘case-stated’⁴⁵ should be employed by Trial

Courts in deserving circumstances. It is equally suggested that Appellate Court when faced with such substantial issue of law whether arising from such case on reference or by reason of a regular appeal, should as a matter of policy, always constitute special panel^[39] and extend invitations to amici curiae in such constitutional issues, to ensure a robust deliberation of the substantial issues of law.

CONCLUSION

The Appellate court judgment has opened up an unending debate in the legal industry on the jurisdictional scope of the Federal High Court and National Industrial Court on maritime labour related matters. It has been argued in this work that the judgment failed to give effect and validity to the provision of section 251(1)(g) of the Constitution to cover unpaid wages of crew members and thereby came to the erroneous conclusion that the National Industrial Court is the court bestowed with the jurisdiction to entertain claims of unpaid crew wages.

It is without doubt that this judgment presently creates tension and uncertainty for seafarers, who are unsure on how and where to ventilate in rem claims and exercise the traditionally guaranteed pre-judgment security of arrest of vessel contemporaneously with in rem proceedings.  It is hoped that when that opportunity presents itself, that the apex court would rise to the challenge and settle the law in this regard by giving proper effect to section 251(1)g of the Constitution to enable the Federal High Court continue enjoying its constitutionally bestowed jurisdictional powers over all maritime matters, inclusive of claims on wages of seamen. Such intervention will ensure that the Nigerian maritime sector retains her pride of place in best industrial practice and standards globally.

[1] Appeal no: CA/LAG/CV/419 (unreported) decided by the Court of Appeal, Lagos division on March 5, 2021.

[2] Third Alteration Act (2010).

[3] Akuroma Dawarikibu Stephen v Seateam Offshore Limited Suit No. NICN/PHC/124/2017 (unreported) decided by the National Industrial Court, Port Harcourt judicial division on February 24, 2020, Per Hamman J.

[4] i.e  by virtue of the doctrine of stare decisis.

[5] On March 31, 21, in a Zoom interactive session organized by The Employment and Lawyers Association of Nigeria, the President of National Industrial Court, Hon. Justice B.B Kanyip PhD, appear to commend the literal interpretation used by the Court of Appeal in arriving at the decision, while Justice Peter Oyin Affen  of the High Court of the Federal Capital Territory, suggested a somewhat  harmonization, to wit,  concurrent jurisdiction of both courts on the narrow compass of maritime labour claims.

[6] The author has reservation with the aspect of the decision on irregular service of the originating process on the 2^nd Appellant, though same is outside the scope of this present discourse.

[7] In the latter part of the work, this research will discuss in detail whether the court decision addressed this point.

[8] i.e the ship with all appurtenances, including bunkers, the cargo on board or every freight.

[9] At page 35 of the judgment, the Court stated admitted that admiralty is in a unique class in the following words: “Admiralty actions, as pointed out by respective learned counsel, are sui generis and unique in a number of key and important respects.” This finding ought to have guided the court throughout the deliberation and caused it to be circumspect in taking away subject matter jurisdictional provision vested in the Federal High Court in the constitution.

[10] In rem action enjoys such popularity amongst maritime claimants around the world this is because it is of immense convenience and can bring advantages which are lacking in an action in personam (admiralty other claim) which may be difficult, if not impossible, to institute.

[11] This does not mean that the vessel itself is the wrongdoer but that it is the means by which the wrongdoer (its owner) has done wrong to some other party. It is also logically the means by which the wrongdoer is brought before the court as a defendant. Christopher Hill, Maritime Law, 6^th edn, (Informa Law from Rutledge, Oxon: 2014),89. A master’s claim for wages ranks pari passu (equally) with seamen’s claims for wages (The Royal Wells [1984] 2 Lloyd’s Rep. 255). See also The Turiddu [1998] 2 Lloyd’s Rep. 278. See generally on Maritime Lien, M. Tsimplis, Procedure For Enforcement in Maritime Law, Yvonne Baatz(ed),  3^rd edn, ( Informa Law from Routeledge, Oxon: 2014), 490 and A. Omaka SAN, Fundamentals of Maritime, Admiralty  and International Water Law, (Princeton & Associates Co. Ltd, Lagos:2018), p 351 -353.

[12] A. Mandaraka-Speppard, Modern Admiralty Law with Risk Management Aspects, (Cavendish Publishing Limited, London: 2001), pp11-12 and S. Baughen, Shipping Law, 6^th edn, (Routledge, New York: 2015), 364.

[13] Maritime Shipping Act of 2007.

[14] In The Bold Buccleugh (1851])7 Moo PC 267. Sir John Jervis gave a commonly accepted definition thus: “A claim or privilege upon a maritime res which is carried into effect by legal process…which travels with the thing into whosoever’s possession it may come. It is inchoate from the moment the claim or privilege attaches, and, when it is carried into effect by legal process by a proceeding in rem, relates back to the period when it first attached.” See also The Tolten (1946) P 135 (CA), pp 144–146. Cf Dictator, The [1892] PD 304, The Gemmar [1899] P 285, p 291and The Indian Grace (No 2) [1998] 1 Lloyd’s Rep 1.

[15] It is a feature of the Admiralty procedure that not only permits an action to be brought in rem (so that jurisdiction may be founded by service of process upon the ship notwithstanding the absence of a means of establishing jurisdiction over the shipowner in personam) but the ship may also be arrested so as to provide security for the claim. This is often for practical purposes the reason to invoke Admiralty jurisdiction as opposed to proceeding by means of in personam claim. By the instant judgment, where a Plaintiff is unable to utilize this special feature at the National Industrial Court in a maritime labour claim, then it is safe to say that in rem action with attendant right of arrest and lien, has been extinguished by implication. See generally on special feature of admiralty practice the work of Nigel Meeson &  John A. Kimbell, Admiralty Juridiction & Practice, 4^th edn, (Informa Law & Finance, UK: 2011), p1:56.

[16] See also Section 7(1)g of the Federal High Court Act 1973, which is in pari meteria with section 251(1)g of the Constitution.

[17] A bit of history of the Federal High Court would have revealed how the intendment of draftsman to vest all maritime jurisdiction in a specialized court. A resort to the parliamentary debates (i.e Hansard), would have left no one in doubt on the intention of the draftsman and the mischief section 251(1) attempted to cure. ²¹ (1980) 8-11 SC 130 at 149. ²² (1981) 10 SC 1.

[18] (2012) LPELR-15515(SC) per Mahmud Mohammed JSC at pp 64-66, paras A-E.  ²⁴ (1994) 7 – 8 SCNJ (Pt. 1) at 35.

[19] (2017) LPELR-42595(SC)

[20] See also the recent case of MTN v. Abia State Govt & Ors (2019) LPELR-46652(CA), pp 21 -25 were the Court of Appeal reiterated the cardinal principles guiding the interpretation of constitutional provisions as set out in the above cases.

[21] Refer to page 26 of the judgment. The Learned Law Lord seem to have obfuscated the point when they stated at page 26 of the judgment that “the mention of Labour Act does not whittle down the exclusive jurisdiction of the National Industrial Court. Rather any reference to the Labour Act and other Acts operates to include matters arising out of the Labour Act and other relevant national laws within jurisdiction of the National Industrial Court.”

[22] The comment by Hon Justice BB Kanyip in support of National Industrial Court (NIC) at the above zoom session (supra note 7), to the effect that the NIC is better positioned for the task, having been empowered by section 254C(2) of the Constitution to adopt International treaties, covenants and best practices. With due respect to the His Lordship, the Merchant Shipping Act (MSA) of 2007 has equally permitted in several of its provisions, the invocation of some many International covenants and treaties relating to admiralty.

[23] Suit No. FHC/L/CS/1807/17 unreported decided by the Federal High Court, Lagos division on March 28, 2018, per M.B Idris J (as he then was).

[24] (1996) 3 NWLR (pt. 439) 646 at 661, per Katsina-Alu JSC.  

[25] Also, deploying the approach of saving by incorporation, the Supreme Court in the case of Bronik Motors Limited v Wema Bank Limited (supra) note 3, held that Section 7 of the Federal High Court Act 1973 No. 13 is saved by sub-section (2) of section 230 [of the 1979 Constitution. The Supreme Court held that the jurisdiction explicitly set out in an Act of National Assembly is saved by the words of general incorporation in situations where the content of subject matter jurisdiction is not expressly set out in the Constitution.

[26] National Industrial Court Rules of 2017.

[27] Merchant Shipping Act, Admiralty Jurisdiction Act, Nigerian Maritime Administration and Safety Agency Act, 2007, Coastal and Inland Shipping (Cabotage Act) No. 5 2003 and the subsequent Cabotage guideline.

[28] Hon Justice BB Kanyip, who during the zoom interactive session (supra, note 7), seem to suggest that the draftsmen use of the word ‘any’ over 40 times in Section 254C(1) of the Constitution  denotes  somewhat exclusivity in ALL labour matters, with due respect to the erudite Law Lord, same word ‘any’ was used in section 251(1)(g) of the Constitution. It is not the plenitude of the word but the validity given to its use in the light of cardinal principles of interpretation of Constitutional provisions.

[29] ibid

[30] The author is unable to confirm at the time of writing if the existence of that case was brought to the knowledge of the court by the parties.

[31] Suit No. FHC/CS/L/592/11 (unreported) delivered by the Federal High Court, Lagos Judicial division on June 20, 2014, per Tsoho J.

[32] Supra, note 5.  The court in the above case relied on earlier cases of Skye Bank Plc V. Victor Anaemem Iwu

(2017) 11 ACELR 1; Aina Olufunsho & Ors. V. Global Soap and Detergent Industries Limted (2014) 4 ACELR 104; and Waziri Umaru Federal Polytechnic Birnin Kebbi & Ors. V. Dr. Haliru Bala (2018) 12 ACELR 59 at  79 where the Court of Appeal aptly put it in these words, “In any ways, without having to mince words on the issue, the current position of the law is that by virtue of 254(C)(i)(a)&(b) of the 1999 Constitution, as amended, which came into effect on the 4-3-2011, the Federal High Court was completely divested of its jurisdiction to entertain any matters described therein, particularly those dealing with the employment and/or dismissal of the respondent herein from the appellants’ institution.”

[33] A. A. Olawoyin, SAN, Enforcement of Maritime Claims: The Unintended Consequences of Constitutional Change on Admiralty Jurisdiction in Nigeria, (2021) Vol. 12, No. 1, The Gravitas Review of Business & Property Law, p 10.

[34] See Section 15 of the Court of Appeal Act, 2004.

[35] (2012) LPELR 19926 (CA), pp14-15, paras F-A. The Court in the case ordered a transfer of the case to the National Industrial in exercise of its powers after it found that the court was the appropriate court to entertain the labour matter.

[36] Op cit, A. A Olawoyin SAN, note 38, p11. The reservation the present author has with the suggestion of a legislative intervention is the cumbersome procedure and length of time required to bring such alteration to limelight.

[37] 43 ibid

[38] P.K Mukherjee & M.Brownrigg, Farthing on International Shipping, 4 edn, (Springer Heidelberg, New York:2013),1. ⁴⁵ i.e on some of substantial issues of law that may have arisen in the course of the proceedings.

[39] Special panels of Court of Appeal are not only constituted for election, pre-election cases or to decongest the court’s docket (as recently done), special panels may equally be set up in matters with wide constitutional  implication on the economy as was done few years ago by the Court of Appeal in the N50.00 (fifty naira) Stamp duty charge case involving Kasmal International Services Limited, Nigeria Postal Service(NIPOST), and Central Bank of Nigeria  on the one hand and   the Deposit Money Banks on the other hand  – Standard Chartered Bank Nigeria Limited V. Kasmal Internationl Services Limited & 22 Others: Appeal No. CA/L/437A/2014 (consolidated).