Bronwen Energy Trading Ltd. V. Oan Overseas Agency (Nig) Ltd & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C. 

This appeal and cross-appeal erupted from the judgment of the Court of Appeal, Lagos Division or lower Court or Court below, delivered on 9th December, 2014, Coram: Joseph Shagbaor Ikyegh, Yargata Byenchit Nimpar and Jamilu Yammama Tukur JJCA. The appeal at the lower Court succeeded in part sequel to the decision of the Federal High Court of 14th March, 2011 per Dan D. Abutu J. (as he then was).

BACKGROUD FACTS

By Writ of summons and Statement of Claim dated the 23rd day of November, 2006 and filed on same date at the Federal High Court, Lagos, the Appellant commenced an Admiralty Action against the Respondents to this Appeal. See pages 1-92 of the Record of appeal, (Volume 1).

​By the Appellant’s action at the Federal High Court, Lagos, which clearly falls under Section 2(2) (n) and (p) of the Admiralty Jurisdiction Act, 1991, the appellant claimed the sum of United /states Dollars $1,986,939.97 as outstanding debt against the 1st Respondent for port and cargo dues and ships’ charges and agency fees. The Appellant also claimed interest on the said sum of United States Dollars $1,986,939.97. The Appellant’s Statement of Claim was amended by Order of the Federal High Court made 21st July, 2008. See pages 691-714 of the Record of Appeal, (Volume 11).

At the time of commencing the action at the Federal High Court, 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 at the time of commencement of the proceedings at the Federal High Court, Lagos. The motion was dated 23rd November, 2006, and filed on same date. See pages 93-194 of the Record of Appeal, (Volume 1).

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 Federal High Court.

​On 27th November, 2006, the Writ of Summons, Statement of Claim, Order of Arrest, Notice of Arrest, Warrant of Arrest and all other processes filed in the suit were served on all the Defendants to the suit at the Federal High Court, Lagos, including the 1st Respondent who duly acknowledged service and entered appearance to the suit at the Federal High Court, Lagos.

The 1st Respondent subsequently filed an application dated 1st December, 2006, 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 made on 24th November, 2006. See pages 213-219 of the Record of Appeal, (Volume 1). The 1st Respondent also provided a Bank Guarantee from Ecobank of Nigeria Plc to secure the claim of the Appellant at the Federal High Court, Lagos, and on this basis, both the vessel, MT “Ocean Success” and Cargo of Premium Motor Spirit (PMS) were released from arrest. See pages 216-218 of the Record of Appeal, (Volume 1).

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It is instructive to point out that the 1st Respondent had earlier filed an application dated 29th November, 2006, seeking a discharge of the ex-parte Order of arrest of the vessel and cargo. See pages 206-212 of the Record of Appeal, (Volume 1). Attached to the application was an affidavit of 21 paragraphs. In paragraph 9 of the affidavit attached to the application, the Managing Director of the 1st Respondent who deposed to the affidavit made the following admission:

“That regarding the sum of US$907,69484 estimated to be outstanding and due to the Plaintiffs, the 3rd Defendants as agents of the said Projector SA requested the Plaintiffs orally and by letters to provide a payment schedule through which the said US$907,694.84 would be settled but the Plaintiff failed to provide same”.

See pages 204-209 of the Record of Appeal, (Volume 1).

Flowing from the above admission and other correspondence between the Appellant and 1st Respondent, was the fact that 1st Respondent was indebted to the appellant for agency services rendered by the appellant to the 1st respondent.