SHIPPING AND ADMIRALTY – ARREST OF A SHIP – Who can sue and be sued in an action for wrongful arrest or detention of a ship
“It is clear that the Court of Appeal fell into error in awarding US$400,000.00 in favour of the 1st Respondent when it was found as fact that the 1st Respondent was not the owner of the arrested vessel. This is because if it is the case that the 1st Respondent was neither owner nor charterer of the arrested vessel, the question this Court ought to ask is whether the 1st Respondent has the legal capacity in the circumstance to maintain an action for the alleged wrongful arrest. This is because it is the law that only a demise charterer or the owner of an arrested vessel who possesses the requisite legal capacity to maintain an action for wrongful arrest. It is trite that the 1st Respondent cannot assume a right nor can the Court of Appeal clothe it with a right which it does not legally possess. The law is that only owners of a ship or demise charterers that can sue and be sued for loss or damage arising from the use of the ship or for wrongful arrest and/or detention of the ship. See Eastwind Transport (Nig) Ltd v. Comet Merchant Bank Limited 1995-1997 Vol. 4 NSC (Nigerian Shipping Cases) pages 85. The case put forward is that the 1st respondent is neither the owner nor charterer of the arrested vessel and so any purported damage or loss suffered by the respondent was voluntary and self induced and underserving of relief from this Court. I refer to R.C.C. (Nig) Ltd v. R.P.C. Ltd (2005) 10 NWLR (pt. 934) 6.5 at 638 the Apex Court held thus: “A plaintiff who claims damages for the commission of a tort or breach of contract must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and, if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. On the other hand, where the plaintiff does mitigate his loss, he cannot recover damages in respect of that avoided loss even if the steps he took to avoid the loss are characterised as being more than what was reasonably necessary.” Per MARY UKAEGO PETER-ODILI, JSC in BRONWEN ENERGY TRADING LTD. v. OAN OVERSEAS AGENCY (NIG) LTD & ORS (2022-LCER-46529-SC) (Pp 13 – 15; Paras C – A)
Facts
This appeal is against the judgment of the Court of Appeal, Lagos Division delivered on 9th December, 2014, Coram: Joseph Shagbaor Ikyegh, Yargata Byenchit Nimpar and Jamilu Yammama Tukur JJCA.
The Appellant commenced an admiralty action by writ against the Respondents at the Federal High Court claiming the sum of $1, 986,939-97 representing cargo dues, ship charges and agency fees on account of services rendered by the Appellant to the 1st Respondent. The Appellant also filed a motion ex-parte requesting an order of arrest/detention of the Vessel MT “Ocean Success” and the Cargo of 15,300 MT of premium Motor Spirit (PMS) onboard the Vessei MT “Ocean Success” both being the only known assets of the 1st Respondent within jurisdiction in the reasonable contemplation of the Appellant.
On 24th November, 2006, the Federal High Court made an order for the arrest of the Vessel MT “Ocean Success” and the Cargo of 15,300 MT of Premium Motor Spirit (PMS) on board the said vessel pending the provision of a Bank Guarantee from a reputable Bank in Nigeria to secure the claim of the Appellant at the Court.
Upon service, the 1st Respondent filed an application for the release of the MT “Ocean Success” and Cargo of 15,300 MT of Premium Motor Spirit on board the vessel which were detained pursuant to the order of the Federal High Court as well as it statement of defence.
At the end of trial, the trial Court presided over by Abutu CJ delivered judgment on the 14th day of March 2011 in favour of the Appellant. The 1st Respondent who had a counter claim appealed to the Court of Appeal. The appeal succeeded in part, the Court of Appeal granted the counter claim of the 1st Respondent. Thus, dissatisfied with the judgment of the Court of Appeal, the Appellant appealed to the Supreme Court. At the Supreme Court, the 1st Respondent filed a cross appeal. The Appellant as the cross respondent filed a preliminary objection to the competence of the cross appeal. The Appellant/cross respondent contended that is no cross appeal as no extension of time was sought by the cross-appellant and since no leave was granted, the cross appeal is incompetent and the Court lacking in jurisdiction to entertain it.
Issues
The Supreme Court determined the appeal on the following issues thus:
“i. Having regard to the facts of the case and the evidence before showing undoubtedly that the vessel in question was wrongfully arrested, whether the lower Court was right in awarding the sum of USD$400,000.00 in favour of the 1st Respondent being daily the charter cost.
ii. Whether the Court of Appeal was right in awarding the sum of United States dollars US$9,500.00 in favour of the 1st Respondent being cost of issuing Bank Guarantee and interest of 18% being Central Bank of Nigeria official rate on the sum of the Bank Guarantee, when the evidence required under law in support of the claims was not before the Court.
iii. Whether the Court of Appeal was right when it awarded “post judgment interest at the rate of 5% from date of judgment until the total sum is fully liquidated” when no such claim was made by the 1st Respondent before the Court.” The Supreme Court also considered the merit of the preliminary objection filed by the Appellant/cross respondent against the competence of the cross appeal filed by the 1st Respondent/cross appellant.
Lead Judge(ment)
MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment)
Held
On the whole, the appeal succeeded in part. The judgment of the Court of the Appeal was affirmed save for the award of US$400,000.00 in favour of the 1st Respondent which was set aside. The preliminary objection filed against the cross appeal was upheld and thus, the cross appeal was struck out for being incompetent.
Alternate Citations
(2022) LPELR-57306(SC)
Full Judgment
Counsel:
N.K. ORAGWU, ESQ.
with him
G. Ogwu and A. Liman.
For 1st Respondent
2nd and 3rd Respondents absent though served on 16/11/2021.
For Appellant(s)
For 1St Respondent(s)
Counsel’s Photograph(s) Needed.