Assurance Foreningen Skuld (Gjensidig) V. Mv Sealion (Ex “antibes”) & Anor (2005)

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M. ABBA AJI, J.C.A.

This appeal is against the Ruling of Hon. Justice I.N. Auta of the Federal High Court, Benin, delivered on the 22nd October, 2002.

The Appellant who was the plaintiff before the trial court instituted an Admiralty action in rem against the Respondents, the Owners/Managers of Sealion (“ex-Antibes”) the 1st Respondent herein. Simultaneously with the issuance of the Writ in Rem, the Appellant filed swap an exparte application praying for the arrest of the 1st Respondent pending the provision of a bank guarantee to secure the Appellant’s claims against the Respondents.

The Lower Court heard the ex-parte application and in its ruling delivered on the 22nd October, 2002, granted the order sought by the Appellant and went further to make ancillary order which required the appellant to deposit the sum of N100,000.00k (One hundred thousand naira) weekly, with the Admiralty Marshal for servicing the arrested vessel.

The Appellant being dissatisfied with the said Ruling appealed to this court upon a lone ground of appeal. The ground of appeal with its particulars is as follows:-

GROUNDS OF APPEAL

“The Learned trial Judge erred in law, when he ordered that the plaintiff deposit the sum of N100,000.00 weekly with the Admiralty Marshal for servicing the arrested vessel.

PARTICUALRS OF ERROR

(i) THE Admiralty Marshal is only entitled under Order 8 of the Admiralty Jurisdiction Procedure Rules 1993 to accept payment of an amount of money not exceeding N5,000, as deposit towards discharging his liability and to make one or more demands for interim payments on account of his fees and expenses.

(ii) Payment of the sum of N100,000 or any amount weekly is not provided for under the Admiralty Jurisdiction Act 1991, or the Admiralty Jurisdiction Procedure Rules 1993 and is arbitrary in law, unjust and oppressive.”

In compliance with the Rules of this Court, briefs of argument were filed and exchanged. In the Appellant’s brief dated 21st September, 2004, settled by Babajide Koku, Esq and filed on the 27th September, 2004, learned Counsel formulated an issue for detemination, that is,

(1) “Whether the Order of the lower court dated the 22nd October, 2002, directing the Appellant to deposit the sum of N100,000.00k weekly with the Admiralty Marshal to service the arrested vessel was valid in law.”

In the Respondent brief dated 17th December, 2004, settled by Nnamonso Ekanem Esq, and filed on the 31st of January, 2005, learned Counsel also identified a lone issue for determination. This is –

“(i) whether under Order 8 of the Admiralty Jurisdiction Rules 1993, the Lower Court has a discretion to order payment of the sum of more than N5,000.00k as expenses to maintain a vessel under arrest.”