Glomite Nigeria Limited V. Shellborn Marine Company Nigeria Limited (2003)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

T

his appeal is against the ruling of Hon. Justice R.N. Ukeje (as she then was) of the Federal High Court, Lagos, delivered on the 28/7/1996, wherein she refused to discharge the interim order she granted on 21/2/1996 and made order of interlocutory injunction granting a reversion of the fishing vessel “Oceanus Alfa”, the subject matter of the suit to the respondent.

The learned trial Judge in her ruling made certain findings based on the affidavit and documentary evidence as follows:

“(i) From the preponderance of the affidavit and documentary exhibit before this court, the plaintiff/respondent, Shellborn Nigeria Ltd. is the undisputed owner of the motor trawler herein the “MT Oceanus Alfa”.

(ii) The equipment leasing agreement herein between the parties dated this 6th day of June,1996 whether it be taken to be for a term of one year per the plaintiff or 2 years (as posited by the defendant) expired on 29th of June, 1996, as admitted by the 1st and 2nd defendants, severally.

(iii) In terms of the agreement herein, the trawler, which at all times material remained the property of the plaintiff now fully, reverts to the plaintiff. There is therefore no further need to dissolve the interim order of this court made in this matter on 21/2/96. Rather, the interim order is hereby converted into an interlocutory injunction pending the determination of this suit.

(iv) The vessel herein reverts to the plaintiff herein. Accordingly, the notional arrest of the vessel “Oceanus Alfa” herein, made on 21/9/96 now moored at Kirikiri phase II, Apapa is hereby dissolved; and the plaintiff may take possession of the vessel and may trade with the vessel, pending the final determination of the substantive suit herein.

(v) Pleadings will be ordered and settled and during trial, all triable issues raised by both parties including:
(i) The actual duration of the agreement herein
(ii) The effect of exhibit PL1 which sought to extend the agreement herein;
(iii) The status exhibit 6 – Extract of police report; and
(iv) All other issues shall be determined.
Those are the findings of this court in this ruling.”

Dissatisfied with this ruling, the appellant has appealed to this court and has set out three issues for determination of this court as follows:
“(a) Whether the learned trial Judge was right in refusing to discharge the interim order or injunction made on 21/2/96 in her ruling dated 26/7/92?
(b) Whether the learned trial Judge was right in making a final order at the interlocutory stage i.e. ordering the reversion of the vessel to the respondent.
(c) Whether the learned trial Judge was right in granting a relief not sought by the respondent.”

On 9/6/2003, when we heard this appeal learned counsel for appellant O.M. Sagay Esq., having adopted and relied on the appellant’s brief of argument, then urged the court to allow appeal as being meritorious. On the other learned counsel for the respondent, Chief F.R.A. Williams S.A.N. having adopted and relied on the respondent’s brief of argument, did not think the appeal has any merit. He therefore urged us to dismiss it.

I wish to observe that respondents did not formulate issues for determination but rather simply adopted appellant’s issues. I will here consider these three issues formulated by the appellant for the determination of this appeal. Both counsels have eloquently articulated on these issues in their respective brief of argument.

On the first issue, the question is whether the learned trial judge was right in refusing to discharge the interim order of injunction made on 21/2/96 in her ruling of 26/7/96. The learned counsel for the appellant has submitted in the appellant’s brief that it is a well settled law that before an interim injunction is granted ex-parte, the most important condition precedent to be considered is the existence of an all pervading real urgency, and not self imposed urgency, which requires that the order must be made, otherwise an irretrievable harm or prejudice would be occasioned to injury of the applicant.

Learned counsel referred to the statement of the learned authors of Halsbury’s Laws of England, 4th Edition Vol. 24 at paragraph 1051. He also relied on the case of Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419 paragraphs B – C and Onyemelukwe v. Attamah (1993) 5 NWLR (Pt. 293) 350 at 365 paragraphs E – F.