Global Medical Care (Uk) Ltd. & Ors. V. Medicair (West Africa) Ltd. & Anor. (1997)(1997)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A. 

On 14th day of May, 1997, an aircraft – an air ambulance which was to be used to carry a patient with kidney trouble was arrested by the order of the court below made ex parte. This court on an application, granted interim relief by way of lifting the arrest order temporarily pending the determination of the motion on notice filed on 21/5/97. The motion of 21/5/95 seeks for a prayer vacating the arrest of the Aircraft with Reg. No. N155AV now under arrest at the Domestic wing of Murtala Mohammed Airport, Ikeja.

The pertinent order of the court below which bothered the applicants reads as follows:

1. That the defendants, whether by themselves, their servants, agents privies or otherwise whatsoever from removing from the jurisdiction, disposing of and/or dealing with their assets within the jurisdiction of this honourable court and in particular that aircraft model/type lock head jetstar 73 with registration/callsign No. N155AV which bears the name of the first defendant and is said to be operated by the second defendant and which said aircraft is presently parked and located at the General Aviation Terminal (Terminal 2) of the Domestic Wing of Murtala Mohammed Airport in Ikeja, Lagos State until determination of this suit or further orders of this honourable court.

In their affidavit of urgency the applicants averred as follows in paragraphs 5, 6 and 11:

(5) That at about 10.30 a.m. on 19/5/97 a patient with acute kidney stone problem who needed to be evacuated abroad could not be evacuated owing to the pending court order and which order I have been informed by Dr. Braithwaite (whom I believe) is a nullity.

Now annexed as exhibit OG5 is a copy of the form (First Call Sheet) ruled by the patient in question and his family.

(6) That this urgent instance was brought to the attention of the court below on 19/5/97 but the court below refused to attach due weight to the said urgency.

(7) That the continuous grounding of the air ambulance makes the difference between life and death to make the difference between life and death to many terminally ill persons who urgently need to be evacuated abroad.

At paragraph 14 of the main affidavit in support, the deponent averred thus:

14. That the air ambulance under arrest is a foreign registered aircraft used solely and exclusively for the evacuation to overseas of seriously ill patients in crisis and terminally ill patients. Now annexed as exhibit is a copy of the certificate of registration of the said aircraft.

From the certificate one can easily discover that the aircraft was registered in US by the Department of Transportation – Federal Aviation Administration. In an earlier motion in the court below when the applicant made a bid to have the aircraft released (which application was turned down), the applicants had deposed thus at paragraph 13 of the affidavit in support:

Paragraph 13:

“That there is no sustainable claim whatsoever against the air ambulance or its lawful owners nor against the 2nd, 3rd, 4th, 5th and 6th defendants in the process filed by the plaintiffs to justify a continued injunction on the aircraft”.

The argument of the applicants is that the order of arrest was pervasive in that its language of operation was couched in the widest possible terms. The order of arrest was to continue until the final determination of the suit. The applicant felt very much ill at ease at the seeming unjustifiable way a mere interim order was converted at the whims of the court to an interlocutory order. Ex parte order by its very nature is interim in nature meant to last for a very short time.

Onagbola in reply stated that the applicants are now trying to convince the court of the true owners of the aircraft a matter they failed to raise in the court below. In their counter affidavit the Respondents exhibited the proceedings that took place in the court below presided by Gumel, J. It is to be observed from the proceedings of 16/5/97 the presiding Judge even then refused to lift the order of arrest which he surprisingly described in that proceeding as an “interim order”. There are different kinds of injunctions. They are ex-parte interim injunction, interlocutory injunction, perpetual injunction, mareva injunction and Anton Piller injunctions. Apart from interlocutory injunction the rest have limited application and are conceived of being of extremely short duration. To my mind the objectionable parts of the order made ex-parte are: