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.
He further referred to ground 1 of the appellants grounds of appeal at pp. 80 – 82 of the records which show that the ruling of the court below is being challenged inter alia, on the ground that the condition precedent for the grant of an ex-parte order of interim injunction were not fulfilled before the order was made by the trial court and that it ought to be discharged. It is further contended that in ground 1 of the grounds of appeal that the respondent suppressed material facts in obtaining the ex-parte order of interim injunction and that where a party obtained an injunction ex-parte by suppression of material facts that will constitute a good ground upon which the order could be discharged.
Having stated the facts which the respondent concealed in applying for the ex-parte order of interim injunction, learned counsel submitted that if these facts had been presented to the court below in applying for the interim order it would have weighed in the mind of the court and would have resulted in the refusal of the interim order. Reliance was placed on the case of Adewale Bello Constructions Co. Ltd. v. I.B.W.A. (1991) 7 NWLR (Pt. 204) 498 at 506 paragraphs D – E. Other cases are Akapo v. Hakeem Habeeb (1992) 6 NWLR (Pt. 247) 266 at 291 and Okechukwu v. Okechukwu (1989) 3 NWLR (Pt. 108) 234 at 246.
On this first issue, the learned counsel for the respondent. Chief F.R.A. Williams, SAN submitted that the learned trial Judge had come to the right conclusion when she refused to dissolve the order for interim injunction and converted the order into one for an interlocutory injunction pending the determination of the substantive suit. That the trial Judge was right to have held that “it is beyond controversy that the plaintiff is the owner of the fishing trawler M.T. “Oceanus Alfa”, after she had reviewed the contending facts.
The learned counsel further submitted that the lower court had not decided between the contending claim of the parties but that the court merely came to the logical conclusion that the agreement between the parties had expired by effluxion of time whether it ended in April or June, 1996.
Learned Senior Advocate referred to the particulars of claim filed on behalf of the respondent in pages 13 – 14 of the records, where the interpretation of the agreement between the parties is in issue. Although conceding from copious authorities cited, that ex-parte orders are only granted in cases of real urgency, learned counsel referred to page 4 of the record and submitted that the affidavit of Captain Christos Tselikas, Managing Director of the respondent company, clearly show the circumstances under which the interim injunction was granted.
On the second and third issues, the learned counsel for the appellant submitted that the learned trial Judge wrongly made a final order which substantially determine the right of the parties. It is also submitted that the learned trial Judge granted to the respondent a relief not sought for or claimed in its application.
On these issues, learned counsel for the respondent submitted that it was not in issue that the agreement had expired but what was actually disputed by the parties was when the agreement expired in 1995 or in 1996. That the trial court clearly avoided deciding this issue in her ruling and set out on page 68 of the record live issues between the parties which was to be taken during trial.
Before I proceed to consider the issues raised for the determination of this case and arguments proffered by learned counsel, I will set out certain observations I have made in this matter.
The appellant has supplied background facts in their brief which the respondent’s counsel rejected as “one sided summary” of the case. My attention has been drawn to respondent’s own case contained in the counter-affidavit of Captain Christos Tselikas, the Managing Director/Chief Executive of the respondent company on pages 32 – 34 of the record. Reproduced hereunder are paragraphs 2, 3, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the said counter affidavit as follows:
“2. I have seen the motion on notice dated 22nd April, 1996 and the undated affidavit in support of the said motion sworn to by one Pius I. Okonkwo.
3. Several of the averments contained in the said affidavit are completely fake and unfounded.
5. Paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18 and 19 of the affidavit are not true and should be discountenanced.
6. In answer to paragraph 5 of the affidavit, I also rely on paragraphs 2, 3, 4, 5,6,7,8,9,10 and 11 of my affidavit in support of our motion ex-parte dated 14/2/96 and the affidavit of urgency deposed by James Uko Kalu Ugwe, a legal practitioner in Chief Rotimi Williams’ Chambers.
7. The facts are as clearly stated in those affidavits and no material fact was concealed by the plaintiff company as alleged.
8. The defendants never expended the sum of N15 million as alleged.
9. The agreement between the plaintiff company and first defendant (of which the second defendant was not a party) was very clear that the first defendant was obliged to repair the equipment with the sum of N2.0 million in consideration of which he was to enjoy one year lease of the equipment.
10. In further response to the said paragraph 5, the said lease was fully consummated by the first defendant and expired on 5th of April, 1995.
11. I am personally aware that the first defendant used the vessel for the period of the lease since I was also employed as a captain/project adviser of the said vessel.
Accordingly, I had a dual relationship with the first defendant. Herewith attached and marked annexture is a letter dated 25/8/94 written personally to me by Mr. Martin Egbejule, the Managing Director of the first defendant. The said letter clearly show that the first defendant utilized the vessel and same was in operation after the date of the lease. Also attached and marked annexture B is a letter dated 3/11/94.
12. Further to the said paragraph 5 of the affidavit, the lease commenced on the date of execution of the lease since minor repairs were carried on more than 15 days before the date of the lease.
13. Apart from the agreed consideration of N2.0 million for the period of the lease, no other sum was spent by the first defendant to the knowledge of the plaintiff company.
14. Paragraph 7 of the affidavit is false. I repeat paragraphs 11, 12 and 13 above.
15. Paragraph 8 of the affidavit is completely false. I repeat paragraphs 10, 11, 12, 13 and 14 above.
16. In further reaction to paragraphs 7 and 8 of the affidavit, there was never a contract between the plaintiff company and the second defendant.”
The appellant moved his motion on 22/4/1996 for an order to dissolve an interim injunction obtained by the respondent. Certain averments were made on both sides when the motion was moved and opposed. I have already set out above the ruling of the learned trial Judge based on findings from the documentary evidence. The first issue is whether the learned trial Judge was right in refusing to discharge the interim order of injunction in her ruling. On page 67 of the record after review of the evidence the lower court found that it is undisputed that the respondent is the owner of the motor trawler “MT Oceanus Alfa”, and came to this conclusion:
“In conclusion therefore, I find that the agreement herein dated 6th June, 1994 for a period of one year (per plaintiff) or two years (per defendants) (which term would be determined in due course), on the admission of the defendants, terminated on 29th day of June, 1996.
Therefore, the trawler now reverts to the undisputed owner, Shellborn Marine Company Limited, the plaintiff herein, who shall be at liberty to trade with the vessel pending the final determination of the substantive suit therein. Accordingly, the “Notional Arrest” of the vessel at present position is hereby dissolved and the plaintiff may regain possession of the vessel.”
From the above passage, I am of the view that the learned trial Judge had not decided between parties in their contending claims.
What the court did and acting on undisputed fact before it, was to conclude that the agreement between the parties had expired by effluxion of time whether it ended in April 1995 or June, 1996.
What, I think is in issue, as per the particulars of claim on pages 13 – 14 of the record, is the interpretation of the agreement entered into between the parties.
It is not clear why the appellant wanted to get the ex-parte injunction dissolved. Is it, as the respondent’s suggested that the appellant had intended to use “its superior physical strength to take possession of the trawler, when it is clear there was no legal issue between the parties who should be in possession of the trawler. Appellant never had any counter-claim before the court. I agree with the learned counsel for respondent that the only claims the defendants could be entitled to, would be damages for breach of contract.
Appellant has cited copious authorities indicating that ex-parte orders are only granted in cases of real urgency. It is true. It is well settled principle of law that there ought to be existence of special circumstances invariably all pervading real urgency which requires that the order ought to be made. See Kotoye v. C.B.N. (supra) and also Onyemelukwe v. Attamah (supra).
In the instant case, was there real urgency in apprehension of irreparable injury to be caused to the respondent? I think there is, considering paragraphs 8, 9 and 10 of Captain Christos Tselikas, the Managing Director/Chief Executive of the respondent. It is deposed in these paragraphs thus:
“8. The defendants now plan to take the boat out of Nigeria’s territorial waters within the week.
9. Unless this application is granted the plaintiff fears that the defendants will proceed to take the said boat out of Apapa where it is presently berthed.
10. The plaintiff also fears that the defendants would continue to tamper with the engine of the boat and or its body components if not presented.”
Appellant has complained that there was no case of urgency shown by the respondent to warrant the grant of an interim order.
He made reference only to the respondent’s affidavit in support of the application for ex-parte injunction. He has however failed to consider the respondent’s reply affidavit to appellant’s counter affidavit dated 15/5/96 and 2nd defendant’s counter-affidavit on pages 44 – 45 of record of the same date. Paragraphs 12 – 22 have not left me in doubt that the conduct of the appellant necessitated the application for ex-parte injunction and this required utmost urgency and intervention of the court to prevent the appellant from tampering with the vessel or even taking her away.
In these circumstances, I am of the view that the first issue should be resolved in favour of the respondent.
Appellant’s complaint in the second issue is that the learned trial Judge made a final order at the interlocutory stage. The law is that the court should refrain from deciding the substantive suit at the interlocutory stage, so as to not to go into the merits of the case. It is trite law that has been judicially approved in a plethora of cases by this court and the apex court. However, in the instant case, I have carefully studied the ruling of the learned trial Judge earlier quoted and consider in the first issue resolved above. It is not in dispute that the agreement between the parties had expired. What was really dispute between the parties was when the agreement expired, was it in 1995 or 1996. I think the trial court clearly avoided the pitfalls of deciding the merits of the case at the interlocutory stage.
I have earlier reproduced above order number (v) made by the learned trial Judge. The court set out the five live issues between the parties which were to be taken during trial. These are the actual duration of the agreement; the effect of exhibit PL1 which sought to extend the agreement; the status of exhibit 6 (the extract of police report); and all other issues which if raised in the pleadings that shall be determined at the trial.
In the third issue, the appellant has contended that the learned trial Judge has no jurisdiction to grant a relief not sought or claimed by either of the parties to suit. I agree that it is trite law.
The matters for determination before the learned trial Judge as submitted by the parties in their respective application were:
(i) Whether to grant an order of interim or interlocutory injunction restraining the appellant and its agents from either taking the vessel from where it was berthed at Kirikiri Phase II, Apapa and tampering with the vessel’s engine.
(ii) Whether the grant of an order discharging or setting aside the interim injunction granted by the court on 21/2/96.
I do not think that the order made by the learned trial Judge as set out at page 68 of the records is beyond the scope contemplated by the parties as disclosed in the two applications above. The purpose of the interlocutory order made by the learned trial Judge was to preserve the matters pending the trial of those matters in dispute. To my mind, this cannot be considered as affecting the ultimate decision of the matter. It does not finally dispose of the right of the parties.
The court has power to make consequential orders and findings on matters which are not in issue or dispute.
In the final analysis, having resolved all the issues in favour of the respondent, the result is that this appeal is bound to fail. It is disallowed. The ruling of Ukeje (1), as she then was, is hereby affirmed. It is hereby ordered that the action be transferred to be heard expeditiously by another Judge upon the settlement of pleadings by both parties.
There shall be costs to the respondent against the appellant assessed at N7, 000.00 (Seven thousand naira only).
Other Citations: (2003)LCN/1416(CA)