K. Maertsch & Ors V. Ola Bisiwa (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal by the Defendants (“the Appellants”) in suit No. FHC/B/CS/174/2001 at the Benin Judicial Division of the Federal High Court against the decision of the Honourable Justice G.O. Kolawole contained in the Ruling of the lower court which was delivered on Friday, 12th March, 2004.

The facts that led to this appeal are as follows:

The Plaintiff in the lower court who is the Respondent in this appeal commenced his action by a writ of summons dated 17th August 2001 and claimed the sum of N9,000,000.00 (Nine million Naira) as damages for destruction of his fishing nets by a vessel, M.V. Walvis 7. The lower court based on the Respondent’s Motion Ex parte dated 17th August, 2001, made an order on the same date by which the vessel was arrested.

In response, the Appellants applied by a Motion on Notice dated 12th September, 2001 for an order to discharge or set aside the order of arrest. The court ordered release of the vessel subject to the provision by the Appellants of a bond issued by a member of P and I club. The appellants subsequently applied by a motion on notice dated 18th March, 2002 and (when it was struck out) by a similar motion on notice dated 16th April, 2003 for the following:

1. An Order striking out this suit on the ground that it is incompetent.
2. An Order setting aside the purported order of arrest of the vessel M.V. Walvis 7 on the ground that the court lacks the jurisdiction to make the order given the nature of the action.
3. An Order discharging the Insurance Bond for the sum of N4,000,000 provided by the 3rd Defendant/Applicant.

The Honourable Justice A.O. Ajakaiye heard the appellants’ motion on notice dated 18th March, 2002 and reserved his ruling for 19th November, 2002 but thereafter he was transferred to another Division of the Federal High Court. The Honourable Justice G.O. Kolawole on 29th January, 2004, heard the Motion on Notice dated 16th April, 2003. Counsel adopted their respective written submissions which the parties agreed to file and exchange. In the Ruling, the trial court dismissed the appellants’ Motion and suo motu, directed the Respondent to amend its processes in order to join the vessel as a party to the suit.

In his ruling, the learned judge of the trial court dismissed the appellants’ motion on Notice dated 15th April, 2003 by which the appellants sought to have the substantive suit struck out for incompetence and the orders made by the lower court set aside or discharged, as the case may be.

The appellants being aggrieved, filed with leave of the Court of Appeal (which leave was granted on 30th March, 2006) their Notice of Appeal dated and filed on 7th April, 2006 containing seven (7) grounds of appeal.

The appellant’s counsel in the brief settled by Uzoma Azikiwe submitted the following issues for determination. They are set out below:

(1) Whether having regard to the finding and acceptance by the learned trial judge that the respondent’s substantive suit was not validly commenced as an admiralty action in rem, the learned trial judge was wrong when he declined to strike out the said suit. (This issue is covered by Grounds of Appeal Nos. 1 and 5).

(2) Whether having found and accepted that the vessel ‘M.V. Walvis 7’ was not a party to the substantive suit when the order of arrest of the said vessel was made, the learned trial judge was wrong when he declined to set aside the said order of arrest and failed to discharge the insurance bond. (This issue is covered by Grounds of Appeal Nos. 2, 3,4 and 5).

(3) Whether the learned trial judge was wrong to have relied on a purported unread draft ruling of the former Presiding Justice of the court and the conclusions of the latter in respect of the appellant’s Motion on Notice. (This issue is covered by Grounds of Appeal No. 5).

(4) Whether the learned trial judge erred when without hearing and determining the respondent’s application to join the vessel, M.V. Walvis 7, he suo motu ordered that the said vessel be joined as defendant in the suit. (This is covered by Grounds of Appeal No. 6).

(5) Whether the award of N10,000.00 costs by the learned trial judge was wrong and should be set aside by this Honourable Court. (This issue is covered by Ground of Appeal No. 7).