Kulak Trades & Industries Plc V. The Tug Boat M/v Japual B & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J. C. A. (Delivering the leading judgment)

This interlocutory appeal has arisen from the ruling of the Federal High Court sitting at Port Harcourt (Coram: A.O. Faji, J) delivered on 16th September, 2004. The ruling of 16th September, 2004 was consequent upon the application filed by the Defendants, now the Respondents in this appeal, on 31st August, 2004, seeking inter alia an order unconditionally releasing the 1st Defendant/Respondent, the Tug Boat MV JAPAUL B, arrested pursuant to an order of the Federal High court (hereinafter called the trial court”) made on 20th July, 2004. The ground for the unconditional release order sought is that the Plaintiff/Appellant failed to comply with the order directing him to deposit the sum of N100, 000.00 with the Admiralty Marshall every week within the period the 1st Defendant/Respondent remained arrested and detained. For better appreciation of the antecedent circumstance of this application I will go a little in to the genesis of the dispute and this appeal.

On 20th July 2004 the Plaintiff/Appellant took out a writ of summons issued by the trial court against the Defendants/Respondents;. The plaintiff/Appellant claimed N5,000,000.00 (five million Naira) as remuneration for salvage services rendered to the Defendants/Respondents, Tug Boat MV JAPAUL B on or about 28th June , 2004. The Plaintiff/Appellant filed contemporaneously with the writ, a motion ex parte in which he prayed for “an order arresting and/or detaining the Tug Boat M/V JAPAUL B now lying at Marine Base, Port Harcourt or any where within the jurisdiction,, of the trial court pending his provision of satisfactory bank guarantee “to secure the plaintiff’s claim” The ex parte application was heard on 20th July, 2004, the very day it was filed, and it was granted as prayed. The trial court specifically directed, in the order it made that –

The Plaintiff shall file a duly worded undertaking as to damages as well as an indemnity for the Admiralty Marshalls expenses. The Plaintiff shall also pay N100, 000.00 deposit for week during which the 1st defendant remains under arrest. This is to defray the expense of the Admiralty Marshall in relation to the arrest. The matter is adjourned to 30.7.2004 for mention.

The foregoing order is the fulcrum of this appeal. It is against this order that the Defendants/Respondents had, in their application filed on 31st August, 2004, sought an unconditional order of the trial court to release from arrest and detention the 1st Defendant/Respondent, the Tug Boat M/V JAPUAL B, on the ground that the Plaintiff/Appellant failed and/or refused to comply with the order directing him to deposit N100,000.00 “for every week during which the 1st Defendant remains under arrest.”

The Defendants/Respondents’ application, filed on 31st August, 2004 was heard on 7th September, 2004. The reserved ruling was delivered on 16th September, 2004 by the trial court. Agreeing with the Defendants/Respondents the learned trial Judge held inter alia at page 80 of the Record –

I agree with Mr. Oloriegbe that payment of the weekly deposit is a condition – precedent to the subsistence of the order of arrest. Also, as rightly pointed out by Mr. Oloriegbe, the Plaintiff has not complied with the order as payment of N200,000.00 can not be compliance with an order for payment of weekly deposit of N100,000.00 for 7 weeks (at the time this motion was argued).

Since the Plaintiff has not fulfilled the condition precedent for sustenance of the order he applied for, the necessary quid pro quo is absent. The order can not therefore stand. Accordingly, this Court hereby orders the unconditional release from arrest of the Tug Boat M/V JAPUAL B, arrested pursuant to an order of this Court made on 20.7.04.

This is the order that prompted the Plaintiff/Appellant to file this interlocutory appeal on 20th September, 2004. The Notice of Appeal has 5 grounds of appeal. The grounds are herein below reproduced as follows –

1. The learned trial Judge erred in holding that the Defendants/Applicants had the locus standi or competence to bring the application on the grounds of the relief being sought, that non-compliance with the order of court to deposit N100,000.00 (One Hundred Thousand Naira) every week for the time that the vessel remains under arrest.

PARTICULARS OF ERROR

(a) The order of the trial court dated the 20th of July 2004 was clear and to the following effect:

“4. The Plaintiff shall also pay one Hundred Thousand Naira (N100,000.00) deposit for every week during which the 1st Defendant (The Tug Boat M/V “Japual B”) remains under arrest.

5. This order (4) above is to defray the expenses of the Admiralty Marshall in relation to the arrest.”

(b) The benefit of the said order was for the Admiralty Marshall and no other person.

(c) The learned trial Judge’s conclusion that the Defendants’ have the competence to bring the application on the ground of failure to comply with the above order failed to consider and give appropriate credence to the evidence in the Plaintiff’s Counter Affidavit of the Defendants’ persistent failure to comply with court’s order to also provide security for the release of the vessel.