Ege Shipping & Trading Industry Inco. & Ors. V. Tigris International Corporation (1999)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C. 

By a writ of summons issued in the Federal High Court holden at Lagos on 24/2/95 the plaintiff who is now respondent before us in this appeal sued the four defendants herein (who are now appellants) jointly and/or severally claiming:

“the sum of US$200,000.00 (Two Hundred Thousand US Dollars) being for damages for breaches of contract arising out of a Time-Charter Party Agreement dated at London, the 5th day of July 1994 for the use and/or hire of the 1st to 3rd defendants’ vessel, the MV “S. Araz”, sued as 4th defendant in these proceedings, which said sum the defendants or any of them have failed and/or refused to pay despite repeated demands. AND THE PLAINTIFF claims the said sum of US$200,000.00 (Two Hundred Thousand US Dollars) and the additional relief herein together with interest and costs’”

The respondent filed a statement of claims which with leave of court, was subsequently amended. Rather than file a statement of defence in answer to the case made out by the plaintiff in its amended statement of claim, the defendants brought an application before the trial court seeking the following orders:

“1. set aside the writ of summon and/or statement of claim.

2. set aside and/or discharge unconditionally the interim order made on the 28th February 1995 for the arrest and detention of the 4th defendant/applicant, the M.V. “S. Araz”, presently lying at berth 4 Apapa Port, Apapa, Lagos.
3. Strike out the name of the 3rd defendant as a party to this suit”

Upon the grounds as set out on the motion paper –

“a. There is no cause of action against the 4th defendant/applicant because the 1st and 2nd defendants whom the plaintiffs have allegedly a claim against are neither the beneficial owners as respect all the shares in the vessel nor are they the Chatterers of the vessel under a charter by demise.

b. The order of arrest of the 4th defendant/applicant made on the 28 February, 1995 is a nullity.

c. The plaintiffs have not made out any claim against the 3rd defendant either in their Writ of Summons or, amended statement of claim.

d. The defendants did not breach clauses 1, 8, 21, 28 or any other terms and conditions of the charter party.

e. The plaintiffs claim against the defendants for accrued port charges and dues is not sustainable in law in view of the provisions of Order VIII r. 2(1) of the Admiralty Jurisdiction Procedure Rules 1993.

f. The plaintiffs are estopped from claiming, as contained in their amended statement of claim, the sum of N50,000,000 (fifty million Naira) as indemnity in respect of suit No. FHC/L/CS/233/95, between Isiyaku Rabiu & Sons Ltd. v. Ben Commodities of London and Tigris International Corporation (Time Charterers/Disponent Owners of MA, “S Araz” (in view of the Notice of Discontinuance and terms of settlement dated and filed on the 23 march, 1995 by the plaintiffs in that suit and the Order of Court dated the 29 March, 1995 striking out the suit.

g. The proceedings are an abuse of the process of court.

h. The arrest order was obtained on misrepresentation of facts.