OWNERS OF THE MV MIAMI MAIDEN v. THE NIGERIAN PORT AUTHORITY
(2011)LCN/4326(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of February, 2011
CA/L/694/2008
RATIO
ARREST OF VESSELS: THE FUNDAMENTAL OBJECTIVE OF ARRESTING A VESSEL OR SHIP
It is indeed trite, that the fundamental objective of arresting a vessel or ship is to obtain satisfaction of a judgment in an action in rem. Where the arrest of a vessel precedes an action and judgment, then the vessel or property arrested stands as security for any subsequent judgment to be enforced there against’ See Niger Meeson’s Admiralty JURISDICTION AND PRACTICE, 2nd Edition, at 135 paras. 4.024. Undoubtedly, the release of a vessel from arrest or detention upon security does not necessarily bring to an end any proceeding pending against the owners thereof. See Sasegbon on Arrest of ships, volume 4 at page 15 thus: Essentially, pre-judgment arrest in admiralty proceedings is either to prevent, pending the determination of the proceedings, the removal from the jurisdiction of a particular vessel which may be used in satisfaction of a possible judgment in the claimant’s favour, or to compel, in lieu, the provision of security corresponding in value to the amount claimed or sometimes the value of the particular vessel. In the case of IBE ABAI & COY (NIG) LTD & ANOR v. OCEANIC TRADERS NAVIGATION LTD (1907- 1979) 1 NSC 418, the Supreme court had aptly held that- It is well settled that in legal and other transactions, the purpose of a security is to enable a person who has suffered damage in the hands of the person required to enter the security or other person on his behalf to fall on the security on the eventuality that he is not able to secure any or adequate reparation from the legal action arising from the damage. In the case of ships the well established Admiralty jurisdiction in respect of ships which the arrested is that security is given to obtain the release of the ship after it has been arrested. Per Kabiri-Whyte, JSC at 418 – 419. It is instructive, that the right of a ship owner to limit his liability for damage caused by his vessel in consequence of a collision or other incident has over the years been recognized by Maritime law and practice. See section 383 of the Merchant Shipping Act 1962; sections 361- 363 of the Merchant Shipping Act, CAP,224 Laws of the Federation of Nigeria 1990, and sections 351- 362 & 363 of the Merchant Shipping Act, CAP MII Laws of the Federation of Nigeria, 2004. However, it should be mentioned, at this point in time, that a significant change introduced in Nigerian Maritime or admiralty law is that the current merchant shipping Act, 2007 has prescribed high limits of liability on ship owners as a result of global inflation. See section 354 of the 2007 Act thus: A person liable shall not be entitled to limit his liability if it is proved that the loss or damage resulted from his personal act or omission or the omission of his servants or agents acting within the intent to cause such loss or damage or recklessly and with knowledge that such loss would probably result. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
LIABILITY FOR DAMAGE CAUSED BY SHIP: WHAT A SHIP OWNER SEEKING TO LIMIT HIS LIABILITY FOR DAMAGE CAUSED BY HIS SHIP MUST SHOW TO SUCCEED
It is pertinent to note that a ship owner seeking to limit his liability for damage caused by his ship can only succeed if he shows that the occurrence took place without his actual fault or privity. PER IBRAHIM MOHAMMED MUSA SAULAWA
INTERLOCUTORY INJUNCTION: PRIMA OBJECT OF GRANTING AN INTERLOCUTORY RELIEF; FACTORS GUIDING THE COURT IN THE EXERCISE OF ITS DISCRETION IN FAVOUR OR AGAINST THE APPLICATION TO MAINTAIN THE STATUS QUO
It is a well established principle that the prima object of granting an interlocutory relief is to preserve the subject matter, i.e. the res, in controversy and maintain the status quo, pending the final determination of the substantive suit itself. And in striving to maintain the status quo, the court has to be guided by certain factors or principles in the exercise of the discretion thereof in favour or against the application. Such factors or principles include the following: (a) The applicant must show that there is a serious question or substantial issue to be tried; (b) The applicant must also show that the balance of convenience is in his favour; that is that in the circumstances of the case it is in the overall interest of justice as between the parties, to grant the application than to refuse it. The onus of proof that the balance of convenience tilts more on the side of the applicant lies on the applicant; (c) The applicant must further show that having regard to the facts and circumstances of the case, damages cannot be an adequate compensation for his damage, should he succeed at the court of trial; (d) Conduct of the parties. The above factors or principles are undoubtedly unexhaustive. See JOHN HOLT NIG. LTD V. HOLTS AFRICAN WORKERS UNION OF NIGERIAN AND CAMEROONS (1963) 2 SCNLR 383, 387: OBEYA MEMORIAL SPECIAIIST HOSPITAL V. ATTORNEY-GENERAL OF THE FEDERATION (1987) 3 NWLR (PT.60) 325; KOTOYE V. CENTRAL BANK OF NIGERIA (1989) 1 NWLR (PT.98) 419; KUFEJI V. KOGBE (1961) 1 ALL NLR 113, 114: MISSINI VS. BALOGUN (1958) 1 ALL NLR 318: LADUNNI VS. KUKOYI (1972) 1 ALL NLR (pt. 1) 133: ABDULLAHI VS. GOVERNMENT OF LAGOS STATE (1989) 1 NWLR (pt. 97) 356. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
OWNERS OF THE MV “MIAMI MAIDEN” Appellant(s)
AND
THE NIGERIAN PORT AUTHORITY Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Lagos Judicial Division, holden at Lagos. The ruling was delivered on May 28, 2008 by the Hon. Justice I.N. Auta.
The facts and circumstances surrounding the case could better be discerned form the record of appeal itself. From the Record it’s so obvious the Appellant had, on October 16, 2007, filed a writ of summons in the court below seeking various declaratory reliefs and orders against the Respondent. The reliefs sought by the Appellant, vide the writ of summons and statement of claim thereof, are to the following effect:
1. An Order that the Plaintiff is entitled as owners to limit their liabilities, if any, arising as a result of the collision aforesaid to the vessel’s net registered tonnage in the circumstances of this case;
2. An Order that the Plaintiffs liability, if any, be limited under the provisions of the Merchant Shipping Act, CAP M11, Laws of the Federation 2004 to an aggregate amount equivalent to One Thousand Gold Francs for each ton of the vessel’s Net Registered Tonnage, because the occurrences took place without the Plaintiffs actual fault or privity;
3. An Order that in consequences of (1) & (2) above, the Plaintiffs (Currency Equivalent on Limitation of Liability) Order made pursuant to the above Act, to an aggregate amount not exceeding approximately N47.50 (Forty-Seven Naira, Fifty Kobo) for each ton of the Plaintiffs vessel’s net registered tonnage;
4. An Order that the net registered tonnage of the MV “Miami Maiden” is 73.340 tons;
5. An Order that in consequences of (1), (2) and (3) above, the liability of the Plaintiff, if any, is limited to a sum not exceeding the sum of N633,650 (Six Hundred and Thirty-Three Thousand, Six Hundred and Fifty Naira only) or its US Dollars equivalent hereinafter referred to as the “Limitation Funds”.
6. An Order formally constituting the said sum of N633,650 (Six Hundred and Thirty-Three Thousand, Six Hundred and Fifty Naira only) or its Dollars as the “Limitation Funds” in this case.
7. An Order admitting, on behalf of the Plaintiff the West of England Protection & Indemnity ( P & I ) Club Letter of undertaking (LOU), being a member of the international 6roup of P & I Clubs in the said sum of N633,650 (Six Hundred and Thirty-Three Thousand, Six Hundred and Fifty Naira only) or its Dollars equivalent as adequate and sufficient security for any claim that may arise as a result of the alleged collision or directing the payment of the said sum in case into Court.
8. An Order that upon the lodgment in Court of the said Limitation Funds specified in (6) and (7) above as aforesaid or such other forms of security as this Honourable Court may otherwise direct as constituting adequate and sufficient security, this and/or any such claims that may arise shall be fully secured and the Plaintiff and the MV “Miami Maiden” shall be discharged from any and/or all responsibilities in respect thereof.
9. An Order that the Limitation Funds be distributed rateably between the Defendant and such future claimants as may be entitled thereto upon proof/establishment of the respective claims.
10. An Order staying all further proceedings in any action or arbitration arising out of the said collision (including the suit herein), and that the above named defendant, and any or all other person or persons whatsoever, interested in the said collision with the said facility or other things on board the facility, or having any right, title or interest whatsoever with reference to, or arising out of the said collision, be restrained from bringing any actions against the Plaintiff or the Vessel, “Miami Maiden” in respect of the same in any other Court and for such Order or further Orders as this Honourable court may deem fit to make in the circumstances.
See Pages 1-7 of the Record
On the part thereof, the Respondent filed the statement of defence thereof, dated October 24, 2007. By the Statement of defence in question, the Respondent denied the Appellant’s claim, and thereby urged upon the trial court to dismiss the suit. See pages 76 -77 of the Record.
On March 3, 2008, the Appellant filed a motion on notice, virtually seeking same reliefs as contained in the writ of summons and the statement of claim thereof. On March 18, 2008, the Respondent filed a counter affidavit to the said motion on notice.
The said motion on notice proceeded to hearing, at the conclusion of which the learned trial Judge delivered a ruling on May 28, 2008. thereby refusing the application on the ground, inter alia, thus:
It is pertinent to note that in this case the plaintiff instituted the case first by filing his statement of claim, before filing the motion on notice. The correct practice is for the ship owner seeking to limit his liability to pay in to court and then institute proceedings for limitation. But where a ship owner settles with the claimant as in this case, he cannot turn around and invoke the provisions of section 353, of the Merchant Ship Act.
The court therefore refused this application and strike it out.
The case is adjourned to 29/07/2008 for trial.
Not unexpectedly, having been dissatisfied with that ruling, the Appellant filed a notice of appeal against the said ruling on June 6, 2008, which is predicated upon three grounds.
In the course of the pendency of this appeal, both parties filed and served their respective briefs of argument. Most particularly, the Appellant’s brief was filed on October 9, 2008 by Gamaliel Oko Esq. That of the Respondent was filed by L.A. Opawoye Esq. on July 31, 2009, but deemed properly and served on February 16, 2010.
The Appellant has raised three issues in the brief thereof, viz:
1. Whether by posting security for the release of the vessel “Miami maiden”, the Appellant has waived its right to limit its liability in the matter? (Ground 1).
2. Whether the filing of writ of summons and statement of claim in the circumstances of the case deprived the Appellant of the right to limit its liability in the matter, being a matter of pure law that can dispose of the matter once and for all? (Ground 2).
3. Whether the learned trial judge was right when he struck out the limitation application by the Appellant on an issue that was not raised by any of the parties before him? (Ground 3).
On the other hand, the Respondent has formulated a sole issue in the brief thereof, to wit:
(1) whether the Trial court was right when in dismissing the Plaintiff/Appellant’s Application dated 3rd March, 2006, it held that the Plaintiff/Applicant who had settled with the Defendant/Respondent and who had taken the benefit of such settlement is not entitled to an order limiting its liability in the circumstances (distilled from Ground one).
On November 29, 2010, when the appeal last came up for hearing, the learned counsel adopted argument in the respective briefs thereof, thus resulting in reserving the matter for delivery of Judgment.
On issue No. 1, it was submitted, inter alia, by the Appellant’s learned counsel that in admiralty matters it’s the practice for the owner of an arrested (detained) vessel to provide security for the release thereof pending the establishment of the claim. The mere fact that a ship owner has posted a security for the release of the Res does not and cannot allegedly amount to admission of liability. According to the learned counsel, it’s settled law that once a ship owner can show, by a preponderance of evidence, that the alleged collision occurred without his actual fault or privities, then he is entitled to limit his liability in the action. The Respondent’s counter affidavit, contained at pages 102 – 104 of the Record, was alluded to, to the effect that the Respondent totally failed to deny or challenge the all important allegation that the Appellant was neither at fault nor privy to the events that led to the collision (of the vessel).
It was contended that the purpose of an arrest (detention) of a ship in an action in rem, is for the owner to appear and provide prejudgment security for the claim of the Arrestor and for establishment of jurisdiction. See ADMIRALTY JURISDICTION AND PRACTICE, 2nd Edition, by Nigel Meeson p. 135 paragraph 4.024; BERLINGIERI ON ARREST OF SHIPS 2nd Edition 1996 page 134; ENFORCEMENT OF MARITIME CLAIM BY D.C. JACKSON 1985 P. 157; SASEGBON ARREST OF SHIPS VOLUME 4 pages 15 & 23; IBE ABAI & CO. (NIG) LTD & ANR VS. OCEANIC TRADERS NAVIGATION LTD (1907 – 1979) 1 NSC 418 at 419; THE DEICHLAND (1988) 2 LOIYD’S REP.454.
It was also postulated that in law where a ship owner voluntarily settles claims against him arising out of a collision and subsequently seeks to limit liability and a refund of excess fund paid to the claimant, the ship owner would be estopped from doing so. See THE LELIEGRACHI (1987 – 1990) 3 NSC 372 at 380.
According to the Appellant, as the incident occurred on or about 24/05/2006, the applicable legislation is the MERCHANT SHIPPING ACT, CAP.224 Laws of the Federation of Nigeria, 1990. see section 363(1) (d)(ii), (2)(b) (d) & 366(1) of the Act (supra); CARVER’S CAPRIAGE BY SEA VOL. 1, 13th Edition para. 425 at 273 – 274, to the effect that an action to limit a liability is one which is set by statute.
It was contended, that for an Applicant to succeed in the application he must show that the occurrence of the collision took place without his actual fault or privity. see section 363 of the Act; CARVER’S CARRIAGE BY SEA at 288 – 289, para. 436; The Leliegrath (1987 – 1990) 3 NSC 372 at 378 – 399; PATTERSON STEAMSHIPS LTD v. ROBINHOOD MILL (1937) 5 LLR 33; THE OBEY (1886) LRIA 102; LENNARDS CARRYING CO. LTD v. ASIATIC PETROLEUM CO. LTD (1915) AC 705 at 713.
Reference was made to the affidavit, supporting the application, exhibits FA4 – FA13 attached thereto, to the effect that it’s patently clear the vessel was properly maintained, manned, equipped, seaworthy and in class. Thus, the court has been urged to hold that the Appellant had done all that the law requires them to limit their liability.
On the issue No. 2, the Appellant adopts the submission on issue 1 (supra) and further submits that the filing of a writ of summons and statement of claim does not, and cannot, deprive the Appellant the right to limit his liability in the circumstance of the case. That, by filing the motion to limit liability and having it determined before filing pleadings will certainly amount to a demurrer. See AINA V. TRUSTEES OF RAILWAY CORP. PENSIONS FUND (1970) 1 ALL NLR 281 AT 283, per Lewis JSC; MAYOR ETC OF MANCHESTER V. WILLIAMS (1891) 1 QB 94; MOBROR (NIG) PLC. V. IAL 36 (INC) (2000) 6 NWLR (PT.659) 146 AT 167 PARAS. G – H. Order 25 Rule 2(1) & (2) Federal High Court (civil procedure) Rules, 2000.
It was contended that there is no law that provides that the filing of the application would deprive the Appellant of the right to limit its liability in the matter. The court has been urged to so hold.
On issue No. 3, the Appellant adopts the submission thereof on issue No. 2.
It was submitted that the Respondent did not complain about the procedure, but took active steps and filed a counter affidavit to the application. It was argued that the lower court could not raise and determine the issue suo motu without inviting counsel to address it thereon. That, the court is not a father Christmas, thus has no power to make an order which has not been asked for. See OLADUNJOYE V. AKINTERINWA (2000) 4 SC (PT.1) 19; AG FED. V. AIC. LTD (2000) 6 SC (PT.1) 175; DYRTRADE LTD V. OMNIA NIG. LTD (2000) 7 SC (PT.56); AFROTEC TECH SERVICES (NIG) LTD V. MIA & SONS LTD & ANOR (2000) 12 SC (PT.11) 1, AKPO V. HAKEEM-HABEEB & 16 ORS (1992) 6 NWLR (PT.247) 266 at 295 para. H, per Karibi-whyte, JSC; FALOBI VS. FALOBI (1976) 10 NSCC 576 at 581 per Fatai-Williams, JSC (as he then was).
The court has been urged to resolve issue No. 3 in favour of the Appellant, allow the appeal, set aside the ruling of the lower court, and accordingly grant the reliefs sought in the writ of summons.
On the other hand, the submission of the Respondent in the brief thereof, is to the effect, inter alia, that the salient issues that informed the lower court’s ruling was that the Appellant’s application was rather premature, in that the issue of liability could only be determined on relevant facts being established at the trial. See NIGERIAN GAS CO. LTD VS. ONWUBUYA (1998) 10 NWLR (pt. 569) 322 at 339 paras. B – C.
It was contended that the parties had actually settled before the vessel was released. See ABBEY VS. ALEX (1999) 12 SC (pt. 11) 71. Paragraphs 6 – 11 of the Respondents counter affidavit at pages 103 – 104, and Exhibits FA1 & NPI were referred to, to the effect that all the depositions of the Respondent there in were not denied by the Appellant who did not file any further affidavit. The depositions in the counter affidavit are thus taken as admitted. See DOKUBO-ASARI v. FRN (2007) 5 – 6 see 150 at 179 paras. 20 – 35.
It was argued that the lower court was right to have come to the conclusion that what happened between the parties was more than a mere posting of security; See THE LIELIE GRACHT (1987-1990) 3 NSC 372 at 390.
In conclusion, the court has been urged to dismiss the appeal with substantial costs.
I have accorded an ample regard upon the nature and circumstances surrounding the present appeal, the submissions of the learned counsel contained in the respective briefs of argument thereof, as well as the record of appeal as a whole. Having done so, I would want to appreciate that the appeal could aptly be determined upon the basis of the three issues formulated in the Appellant’s brief.
ISSUE NO. 1:
The first issue raises the question of whether the Appellant has waived its right to limit the liability in the matter by merely posting security for the release of the vessel, “Miami Maiden”. As alluded to above, the Appellant’s statement of claim and motion on notice and supporting affidavit could be found at pages 1 – 74 and 78 – 101 of the record, respectively. On the other hand, the Respondent’s statement of Defence and counter affidavit to the motion are contained at pages 76 – 77 and 102 – 105 of the Record, respectively. The provision of section 362 of the Merchant Shipping Act, CAP. MII Laws of the Federation of Nigeria, 2004, Act relates to limitation of ship owner’s liability regarding loss of or damage to goods. Whilst section 363 of the Act, on the other hand, relates to limitation of ship owner’s liability regarding loss of life, injury or damage. By virtue of the provision of section 362 (supra), the owner of a commonwealth ship, or any share in, shall not be liable to make good to any extent whatever any loss or damage occurring without his actual fault or privy in cases –
(a) where any goods, merchandise or other thing taken in or put on board his ship are lost or damaged by reason of fire on board the ship; or
(b) where any gold, silver, diamonds, watches, jewels or precious stones taken in or put on board his ship, the true nature and value of which have not been declared by the owner or shipper thereof to the ship master or owner in the bills of laden or otherwise in writing, are lost or damaged by reason of any robbery embezzlement, making away with or secreting thereof.
The limitation liabilities of an owner of a commonwealth or foreign ship regarding loss of life, injury or damage to properties has been clearly set out in section 363(1) of the Act, viz:
(d) where any loss or damage is caused to any property, other than any property mentioned in paragraph (b) of this subsection, or any rights are infringed through the act or omission of any person, whether on board the ship or not, in the navigation or management of the ship, or in the loading, carriage or discharge of her cargo, or in the embarkation, carriage or disembarkation of her passengers, or through any other act or omission of any person on board the ship be liable to damages beyond the following amounts –
(i) in respect of loss of life or personal injury, either alone or together with such loss, damage or infringement as in mentioned in paragraphs (b) and (d) of this subsection, on aggregate amount not exceeding an amount equivalent to three thousand one hundred gold francs for each ton of their ship’s tonnage,
(ii) in respect of such loss, damage or in fringement as is mentioned in paragraphs (b) and (d) of this subsection, whether there is in addition loss of life or personal injury or not, on aggregate amount not exceeding on amount equivalent to one thousand gold francs for each ton of their ship’s tonnage.
Undoubtedly, the law applicable to the instant case is the Maritime Shipping Act, CAP. MII, Laws of the Federation of Nigeria, 2004. It is therefore innocuous, to say the least, for the learned trial judge and the Appellant’s learned to maintain that the law applicable to the action was the Merchant Shipping Acts 1962 and 1990, respectively.
At page 135 lines 4-5 of the Record, it has been stated by the lower court that –
“The issue of who is at fault is a matter of evidence and is to be decided by the court.”
As alluded to above, the ship owner’s liability as regards to loss of life, injury or damage to goods or merchandise have been provided for under sections 352 and 353 of the Merchant Shipping Act, 2004.
By virtue of the provision of section 365 of the merchant shipping Act, 2004, no judgment or decree for a claim predicated or founded on a liability to which a limit is set by section 363 of the Act shall be enforced except so far as regards costs, if security for an amount not less than that limit has been given. The court must however satisfy itself that the amount for which the security is given, or such part thereof, corresponds to the claim, will be actually available to the person in whose favour the judgment or decree was given or made.
What’s more, subsection (2) of section 365 (supra) has emphatically provided that –
(a) any question whether the amount of any security is not less than any limit set by section 363 of this Act shall be decided as at the time at which the security is given; and (b) where part only of the amount for which security has been given wilt be available to the person in whose favour the judgment or decree was given or made, that part shall not be taken to correspond to his claim if any other part may be available to a claimant in respect of a liability to which no limit is set as mentioned in subsection (1) of this section.
In the instant case, parties are ad idem, that on the May 23, 2006 in question the Appellant’s vessel Miami Maiden arrived the Nigeria’s port at Lagos. The Nigerian Ports Authority pilots boarded the vessel and proceeded to berth at Apapa Berths. Unfortunately, however, in the process of berthing, the vessel had a collusion with the Respondent’s Jetty. In consequence thereof, both the Jetty and ship were damaged. The Respondent thereby detained the vessel. The Appellant’s west of England protection And Indemnity (P & 1) club issued a letter of undertaking, dated August 30, 2006 to the Respondent to the tune of US $150,000, inclusive of interest and cost. Thus, the vessel was allowed to discharge its cargo and sail off.
It is indeed trite, that the fundamental objective of arresting a vessel or ship is to obtain satisfaction of a judgment in an action in rem. Where the arrest of a vessel precedes an action and judgment, then the vessel or property arrested stands as security for any subsequent judgment to be enforced there against’ See Niger Meeson’s Admiralty JURISDICTION AND PRACTICE, 2nd Edition, at 135 paras. 4.024.
Undoubtedly, the release of a vessel from arrest or detention upon security does not necessarily bring to an end any proceeding pending against the owners thereof. See Sasegbon on Arrest of ships, volume 4 at page 15 thus:
Essentially, pre-judgment arrest in admiralty proceedings is either to prevent, pending the determination of the proceedings, the removal from the jurisdiction of a particular vessel which may be used in satisfaction of a possible judgment in the claimant’s favour, or to compel, in lieu, the provision of security corresponding in value to the amount claimed or sometimes the value of the particular vessel.
In the case of IBE ABAI & COY (NIG) LTD & ANOR v. OCEANIC TRADERS NAVIGATION LTD (1907- 1979) 1 NSC 418, the Supreme court had aptly held that -It is well settled that in legal and other transactions, the purpose of a security is to enable a person who has suffered damage in the hands of the person required to enter the security or other person on his behalf to fall on the security on the eventuality that he is not able to secure any or adequate reparation from the legal action arising from the damage. In the case of ships the well established Admiralty jurisdiction in respect of ships which the arrested is that security is given to obtain the release of the ship after it has been arrested.
Per Kabiri-Whyte, JSC at 418 – 419.
It is instructive, that the right of a ship owner to limit his liability for damage caused by his vessel in consequence of a collision or other incident has over the years been recognized by Maritime law and practice. See section 383 of the Merchant Shipping Act 1962; sections 361- 363 of the Merchant Shipping Act, CAP,224 Laws of the Federation of Nigeria 1990, and sections 351- 362 & 363 of the Merchant Shipping Act, CAP MII Laws of the Federation of Nigeria, 2004.
However, it should be mentioned, at this point in time, that a significant change introduced in Nigerian Maritime or admiralty law is that the current merchant shipping Act, 2007 has prescribed high limits of liability on ship owners as a result of global inflation. See section 354 of the 2007 Act thus:
A person liable shall not be entitled to limit his liability if it is proved that the loss or damage resulted from his personal act or omission or the omission of his servants or agents acting within the intent to cause such loss or damage or recklessly and with knowledge that such loss would probably result.
As alluded to above, the law applicable to the instant case is the Merchant Shipping Act, 2004 (supra). And by virtue of the provisions of sections 352 & 363 of the said Act, the Appellant’s right to limit the liability thereof is not at all in doubt. That being the case, therefore, the mere posting of security by the Appellant for the release of the vessel thereof, the Miami Maiden, has not amounted to waiving the Appellant’s right to limit its liability in the matter. The answer to issue No. 1 is undoubtedly in the negative, and same is resolved in favour of the Appellant’s favour.
ISSUE NO. 2:
The second issue raises the very vital question of whether the filing of a writ of summons and statement of claim, in the circumstances of this case, has deprived the Appellant of the right to limit its liability in the matter, being a matter of pure law that can dispose of the matter, once and for all. The issue was distilled from ground 2 of the grounds of appeal.
Without any much ado, I would want to appreciate that the answer to the second issue is most inevitably in the affirmative, for some obvious reasons. One, it’s rather obvious from the record, that the instituting of the substantive case, FHC/L/CS/947/2007, vide a writ of summons in the lower court, was to purposely accord the Appellant the opportunity to limit the liability thereof, for which it had given security in the sum of US$150,000, prior to the release of the vessel thereof by the Respondent.
In the contentious ruling thereof, the learned trial judge has stated at pages 10 and 11 of the Record thus:
The issue of who is at fault is a matter of evidence and is to be decided by the court.
It is pertinent to note that a ship owner seeking to limit his liability for damage caused by his ship can only succeed if he shows that the occurrence took place without his actual fault or privity. Has he done that in this case? The plaintiff has to establish this fact by evidence at the trial. It is not in doubt from the evidence before this court that the ship was manned by a competent crew, but in this situation one cannot say that no member of the crew was on board the vessel at the time of the incident. They have to establish these facts.
I think, I cannot agree more with the above unassailable findings of the learned trial judge.
Two, the filing of the instant motion on notice seeking exactly the same reliefs as those being sought in the substantive suit has, in my considered view, amounted to a sheer abuse of process of court. Thus it’s, to say the very least, unfortunate and rather reprehensible!
Instructively, the term abuse of process denotes the improper and rather tortuous use of a legitimately used court process to obtain a result that’s either unlawful or beyond the scope of the process itself. It’s also termed abuse of legal process; malicious abuse of legal process; wrongful process; wrongful process of law, et al. It is an abuse of process for a person to institute a legal process, whether criminal or civil, against another primarily to accomplish an object for which it is not designed. It is indeed trite, that an abuse of process may occur when a party improperly causes a judicial process to be issued with a view to harassing, irritating and annoying his opponent, thus resulting in misusing and interfering with the administration of law vis-a-vis the rule of law. See OWONIKOKO V. AROWOSAIYE (1997) 10 NWLR (PT.523) 61; DAPIANLONG V. DARIYE (2007) 8 NWLR (PT.1036) 239 AT 322 PARAGRAPHS D-F1.
At page 14 paragraph 6.0 of the brief thereof, the Appellant’s learned counsel has urged upon the court –
“to set aside the ruling of the lower court dated 28 May, 2008 and its place, allow the appeal and grant all the relief sought in the writ of summons and set out at pages 1 – 2 of this brief.”
With a possible deference to the learned counsel, the above prayer is to say the least highly preposterous, and rather a sheer afterthought. Granting the reliefs sought in the instant motion would tantamount to determining the fundamental issues raised in the substantive case. It would have been outrageous for the trial court to have disposed itself to determining the fundamental issues in the substantive suit on the basis of the interlocutory application. Not unexpectedly, the trial court, rightly in my view, nipped the surreptitious application in the bud.
It is a well established principle that the prima object of granting an interlocutory relief is to preserve the subject matter, i.e. the res, in controversy and maintain the status quo, pending the final determination of the substantive suit itself. And in striving to maintain the status quo, the court has to be guided by certain factors or principles in the exercise of the discretion thereof in favour or against the application. Such factors or principles include the following:
(a) The applicant must show that there is a serious question or substantial issue to be tried;
(b) The applicant must also show that the balance of convenience is in his favour; that is that in the circumstances of the case it is in the overall interest of justice as between the parties, to grant the application than to refuse it. The onus of proof that the balance of convenience tilts more on the side of the applicant lies on the applicant;
(c) The applicant must further show that having regard to the facts and circumstances of the case, damages cannot be an adequate compensation for his damage, should he succeed at the court of trial;
(d) Conduct of the parties.
The above factors or principles are undoubtedly unexhaustive. See JOHN HOLT NIG. LTD V. HOLTS AFRICAN WORKERS UNION OF NIGERIAN AND CAMEROONS (1963) 2 SCNLR 383, 387: OBEYA MEMORIAL SPECIAIIST HOSPITAL V. ATTORNEY-GENERAL OF THE FEDERATION (1987) 3 NWLR (PT.60) 325; KOTOYE V. CENTRAL BANK OF NIGERIA (1989) 1 NWLR (PT.98) 419; KUFEJI V. KOGBE (1961) 1 ALL NLR 113, 114: MISSINI VS. BALOGUN (1958) 1 ALL NLR 318: LADUNNI VS. KUKOYI (1972) 1 ALL NLR (pt. 1) 133: ABDULLAHI VS. GOVERNMENT OF LAGOS STATE (1989) 1 NWLR (pt. 97) 356.
In the circumstance the instant application is undoubtedly an abuse of process of the court, thus rightly dismissed by the trial court. Issue No. 2 is thus hereby resolved in favour of the Respondent.
ISSUE NO.3:
The third issue raises the question of whether or not the learned trial judge was right when he struck out the Appellant’s application in question. I think, in view of the fact that the second issue has been resolved in favour of the Respondent, the answer to the 3rd issue is most inevitably in the affirmative. It would amount to a sheer futile academic exercise to delve into any further discussion on issue No. 3, which I believe should be resolved in favour of the Respondent. And I so hold.
Hence, having resolved both issues 2 and 3 in favour of the Respondent, there is no gainsaying the fact that the appeal lacks merit, and it is hereby dismissed by me. The ruling of the trial court, dated May 28, 2008, is hereby affirmed.
The Respondent shall be entitled to N30,000 costs against the Appellant.
ADAMU JAURO, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother. I.M.M. SAULAWA J.C.A. just delivered. I agree with his reasoning and conclusion to the effect that the appeal is lacking in merit and ought to be dismissed.
The appellants as applicant in the court below by a motion on notice prayed for the same reliefs sought for in the substantive suit.
This indeed was wrong, as the court cannot grant reliefs sought in a substantive action via interlocutory application. The trial court was therefore absolutely right in throwing out the application.
In the circumstances, I too dismiss the appeal and abide by the consequential orders contained in the lead judgment, including order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I have had a preview of the judgment just delivered by my learned brother I.M.M. SAULAWA J.C.A., and I agree with the reasoning and conclusions. I also abide by the consequential order made.
Simply put the learned trial Judge came to a right conclusion when he pointed that what happened between the parties was more than a mere posting of security. This is because the court must at all times satisfy itself that the amount for which the security is given, or such part thereof corresponds to the claim, and will be actually available to the person in whose favour the judgment or decree was given or made.
The release of a vessel from arrest or detention upon security does not bring to an end any proceeding pending against the owners of the vessel. In the instant case, and by virtue of the applicable law i.e. The Merchant Shipping Act 2004, the mere posting of security by the Appellant for the release of the vessel i.e. the Miami Maiden, did not amount to the Appellant waiving his right to limit its liability in this matter.
It is trite that reliefs sought in an interlocutory application cannot dispose of reliefs filed in the substantive suit.
It is only where there is a preliminary objection as to jurisdiction, that it may amount to disposing of the matter one way or the other.
This is however not the case in this present appeal. The learned trial Judge was unequivocally right in refusing the application because to have granted it would amount to granting virtually the reliefs contained in the Writ of Summons and Statement of Claim.
Appearances
Ayo Olonrunfemi Esq. with Busola Ajetunmobi MissFor Appellant
AND
L.A. Otawoye EsqFor Respondent
