The Vessel “saint Roland” & Anor. V. Adefemi Osinloye (1997)

I. IGUH, J.S.C 

By a writ of summons issued on the 21st day of January, 1992 in the Lagos Judicial Division of the Federal High Court of Nigeria, the plaintiff instituted an action against the defendants jointly and severally claiming as follows:-

“The plaintiff’s claim against the defendants jointly and severally is for the sum of N200,000.00 being special and general damages for conversion of the plaintiff’s 505 Peugeot saloon car which was delivered to the defendants for shipment from Germany to Lagos on board the Vessel “SAINT ROLAND”

AND/OR

The sum of N200,000.00 from the defendants jointly and severally for negligence resulting in the loss of the plaintiff’s 505 Peugeot saloon car which was given to the defendants for shipment from Germany to Lagos on board the Vessel “SAINT ROLAND”.

Upon an application ex-parte filed on the same 21st January, 1992 by the plaintiff, Kassim J. on the 22nd January, 1992 ordered the immediate arrest and detention of the vessel, “SAINT ROLAND” then lying at the Tin Can Island Port of Lagos pending other orders from the Court. The plaintiff was ordered to give the usual undertaking as to damages. Pursuant to this order, the vessel was duly arrested and detained.

On the 29th June, 1992, the defendants, having retained the services of counsel, Dr. Eyimofe Atake, filed a motion ex parte for the release of their vessel. It would appear that at this stage, both parties through their respective counsel, entered into discussion directed at releasing the defendant’s vessel from arrest and detention. This was in a bid to reduce substantial losses that were mounting as a result of the arrest and continued detention of the vessel, M.V. “SAINT ROLAND”.

At the end of these discussions both counsel for the parties on the 28th April, 1992 agreed in writing as follows –

“(i) That the defendant’s counsel, the firm of Eyimofe Atake and Co. handed over to the chambers of Professor A.B. Kasunmu, counsel for the plaintiff, in trust for their client, a Nigerian International Bank draft No. 070712 dated the 28th April, 1992 for the sum of N200,000.00 as security for the sum that may be adjudged due and payable to their client by the Federal High Court.

(ii) That the plaintiff’s counsel undertook to return the before-mentioned draft to the defendants counsel as soon as the latter secured a bank guarantee in the sum of the plaintiff’s claim in court, namely, N200,000.00 and handed the same over to the plaintiff’s counsel.

(iii) That the said draft was given to the plaintiff’s counsel without prejudice to any defence that may be open or available to the M.V. ‘SAINT ROLAND” or Law owners in respect of the plaintiff’s claims.”

This agreement was duly signed by both counsel for the parties. As agreed, the plaintiff’s counsel by their letter No. ABK/MOC/1485 of the 29th April, 1992 addressed to the trial court indicated that they had no objection to the release of the vessel M.V. “SAINT ROLAND” as the defendant’s learned counsel had given them a Bank Draft for N200,000.00 in lieu of the agreed Bank Guarantee. The plaintiff’s counsel by their said letter to the court further confirmed that it was expected they would return the said Bank Draft to the defendant’s counsel on receipt of their Bank Guarantee in the same sum of N200,000..This letter which was copied to the defendant’s counsel stated as follows –

“Our Ref: ABK/MOC/1485 29th April, 1992

The Registrar,

Federal High Court,