Assurance Foreningen Skuld (Gjensidig) V. Mv. Sealion (Ex “antibes”) & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

Indorsed on the writ of summons issued on 18th October, 2002 is the appellant’s (the plaintiff’s) claim for the following reliefs against the Respondents (then defendants):

“(a) The sum of USD$134,935.25 representing the amount of outstanding insurance calls or premium due to the plaintiff plus interest and cost which the Defendant is jointly and severally liable for under the terms of the fleet over granted to the Defendant by the Plaintiff.

(b) A declaration that the purported change and/or transfer in ownership and/or sale of the vessel the Sealion, Alboran 1, Antibes, Corcica, Portofino. Rallegat, Sete, Skayerrak, Elba, Fos, Santa Margherita are a sham and that no effective transfer of ownership has been made.

(c) A declaration that the Beneficial Ownership of the Sealion, Alboran 1, Antibes, Corsica, Portofino, Kallegat, Sete, Skayerrak, Elba, Fos, Santa Margherita have remained unchanged.”

On the same day (18th Oct. 2002) the appellant filed along with the statement of claim a motion Ex parte pursuant to Order 7 Rules 1 & 2 of the Admiralty Jurisdiction procedure Rules 1993, Section 2 (3) (6) of the Admiralty Jurisdiction Decree 1991, asking for “an order arresting and/or detaining the MV Sealion (ex “Antibes”) presently lying at the Warri Refinery Jetty, Benet Island and Escravos Fairway Warri or any where else within the Jurisdiction of this Honourable Court, pending the provision of a satisfactory bank guarantee from UBA Plc, Union Bank of Nigeria Plc or First Bank of Nigeria Plc in the sum of USD$134,935.25 or its naira equivalent to secure the plaintiff’s claim plus interest and cost for such further and/or other orders as this Honourable Court may deem fit to make in the circumstances.” The application was supported by a paragraph affidavit and an affidavit of urgency in which it was averred, inter alia in paragraphs 4 & 5 as follows:

“4. That unless the Defendant is immediately arrested it will slip out of Jurisdiction and the Plaintiff will have no means of securing its claims.

5. That the Defendant is the only known asset available to the plaintiff in this jurisdiction.”

The application was granted on the 22nd October, 2002. The trial court also ordered the appellant to give an undertaking as to damages and to deposit the sum of N100,000.00 weekly with the Admiralty Marshal “for serving the arrested vessel” (see page 17 of the Records.) A warrant of arrest was subsequently issued.

On 25th October 2002 the Respondents, as Defendants/Applicant, brought a Motion on Notice pursuant to Order IX Rule 2(1) of the Admiralty Jurisdiction Procedure Rules 1993 praying for the following reliefs:

“(1) An Order releasing from arrest the vessel MV “SEALION’. Sued as 1st Defendant in this suit and discharging unconditionally the warrant of arrest issued by this Honourable Court in that regards;

(2) An Order that the Plaintiffs furnish security for cost in the sum of USD 100,000.00 within five (5) working days;

(3 And for such further order or other orders as this Honourable Court may deem fit in the circumstances.”

The motion was predicated on the claim that the claim discloses no admiralty action in rem against the 1st Defendant, that the action is incompetent as against the current owners/managers of the vessel and that the action is an abuse of process of Court and should be dismissed. The motion was supported by a five paragraph affidavit. Also filed is a five-paragraph affidavit of urgency. The appellant filed a 19 paragraph Counter Affidavit.

In a considered ruling dated 8/11/2002 the Lower Court found no sufficient reason to release the arrested ship unconditionally and ordered the Respondents to give a bank guarantee in the sum of $139,935.35 or its Naira equivalent from UBA Plc or Union Bank before the vessel will be released.