Continental Shipyard Limited V. Eziogoli Shipping Limited (2008)

LawGlobal-Hub Lead Judgment Report

ADZIRA GANA MSHELIA, J.C.A.

This is an appeal against the ruling of the Federal High Court Lagos delivered by Abutu J. on 12th December, 2000 refusing the appellant’s application for striking out or dismissal of the suit. The brief facts of the case is as follows: The respondent, the owner of the vessel m/v Suwe Star sometimes in August, 1997Â Â engaged the services of the Appellant for the dry docking repairs of leakages in the propeller hub and Hull cleaning of the vessel. It was agreed between both parties vide the letter of quotation dated 25th August, 1997 written to the respondent by the appellant that the job would be completed within 7 days of docking after which the vessel will be undocked and handed over to the respondent.

The respondent, at the material time, also informed the appellant of its contracted obligation to a third party, Socomar Nigeria Limited, under a time charter party at an agreed rate of N136,000 US Dollars per voyage.

Inspite of the agreement between the parties that the job would be completed within (7) days, the vessel stayed in the custody of the Appellant beyond the agreed period and was badly damaged as a result of the negligence and inefficiency of the appellant’s subcontractor and this has resulted in damage to the Respondent consequent upon which the Plaintiff/Respondent filed a suit in the court below claiming damages for breach of contract.

The reliefs sought are as follows:-

“(1) Declaration that the neglect, refusal and or failure of the defendant to complete repairs of the vessel, m/v suwe star within a period of 7 (seven) days is in clear breach of the Agreement between the Plaintiff and Defendant as contained in the Defendant quotation of 25th August, 1997.

(2) The sum of $272,000.00 (Two Hundred and Seventy Two Thousand US Dollars) being loss of freight on the vessel for two voyages.

(3) The sum of $197,866.00 (One Hundred and Ninety Seven Thousand, Eight Hundred and Sixty Six US Dollars) being running cost in part at the rate of $2,413 .00 per day for a period of 87 days.

(4) General damages in the sum of US $50,000.00 (Fifty Thousand US Dollars).

(5) The sum of US $20,000.00 (Twenty Thousand US Dollars) being cost of this action”.

See pages 2 – 8 of the record.

The appellant brought an application praying the court below to strike out or dismiss the action on the ground that same constitutes an abuse of the court process. The learned trial Judge Abutu J. in a reserved and considered ruling delivered on the 12th  day of December, 2000 had this to say:-

“The Plaintiff no doubt has a reasonable cause of action against the Defendant which is founded on breach of contract arising from the damage done to the vessel at the time of dry docking the vessel. The action in this case is certainly not an abuse of court process.

In the result the motion fails and it is hereby dismissed. ”