Lonestar Drilling Nigeria Ltd. V. Triveni Engineering & Industries & Ors (1998)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A. 

This is ruling on a motion brought by the applicant dated 10th October. 1998. The applicant is praying this court, in the motion, for “an order for stay of further proceedings before the Federal High Court sitting at Lagos in Suit No. FHC/B/22897 as per hearing notice dated 5th October, 1998, pending the hearing and determination of this appeal”. The 3 grounds given in support of the reliefs sought as set out on the motion paper are:

“(i) The circumstances of this case show special exceptional and urgent reasons why the proceedings at the Federal High Court, holden at Lagos on Tuesday, 13th October. 1998 should be stayed.

(ii) Unless the proceedings before the Federal High Court sitting at Lagos on Tuesday, 13th October, 1998 are stayed by this Honourable Court, the appellant/applicant will suffer irreparable and grievous hardship.

(iii) The applicant has no confidence that he will receive a fair hearing before the Federal High Court sitting at Lagos for the reasons stated in the affidavit in support of this application.”

The motion is supported by a 19-paragraph affidavit of urgency and a 25 paragraph affidavit in support, both sworn to by Isah Kanoba. It was opposed by the respondents. To that end, a 45-paragraph counter-affidavit sworn to by Kola Olapoju was filed. The applicant also filed a 26-paragraph reply to the counter-affidavit, also sworn to by Isah Kanoba.

A brief summary of the facts relied on in support of the motion, as contained in the affidavits filed in support, are that the suit was instituted at the Federal High Court. Benin on August 5, 1997 and that on August 6, 1998, Abutu J, sitting at Benin Judicial Division of the Court, made an order for the arrest and detention of the 4th respondent, MV Dubai Valour, a merchant ship on the condition that the ship be released upon providing a bank guarantee for the value of the applicant’s claim which is N1,435,390,000.00. The case was, on the order of the learned Chief Judge of the Federal High Court, transferred to the Lagos Division of the Court where it was assigned to Sanyaolu, J. of the Lagos Division of the same court.

On August 22nd 1997, Sanyaolu J. sitting at the Lagos Division of the court and upon application by the respondents, reviewed the order earlier made by Abutu, J. in Benin in the case by ordering the release of the ship upon production of a letter of undertaking by Thomas Miller P & IClub for the value of One Million US Dollars, an amount said to be less than what was being claimed by the plaintiff/applicant on it’s writ of summons. The appellant was not satisfied with the order made by Sanyaolu J. and has appealed against it. An order staying the order made by Sanyaolu J. was made by Abutu J. on September 30th, 1997. The suit was thereafter transferred back to Benin Division of the Federal High Court and assigned to Egbo-Egbo, J. However, a hearing notice was issued by the Lagos Division of the court (Exhibit IK 12 attached to the affidavit in support of the motion). The parties were, according to the hearing notice, requested to appear in the court on October 13th, 1998 in Lagos. The learned Chief Judge of the Federal High Court had also on October 13th, 1998 ordered the production of the 7th to 10th respondents before him (as per a production warrant, Exhibit IK 13 attached to the motion). But the 4th respondent’s ship is presently still being held at Mooring Bouys, Sapele pursuant to the order made by Abutu, J. It is then averred, on behalf of the applicant in paragraph 23 of the affidavit in support, inter alia, thus:

“I am apprehensive that the Hon. BeIgore, C.J. of the Federal High Court is likely, unless restrained by the Honourable Court, to make an order on October 13th, 1998 that will be immensely prejudicial to the applicant’s interest in these proceedings.”

The respondents’ case, as set out in their counter-affidavit, is that the case was once transferred to Lagos in August 1997 on the defendants’ application for the purposes of determining an application for the release of the ship and this was when Abutu J., the learned Judge handling the case in Benin, was on a 5-week vacation. The case was thereafter returned to Benin Judicial Division of the court. The application for the arrest of the 4th respondent ship was said to have been obtained ex parte and the respondents had to apply to the court by a motion on notice for a release of the ship. This was the application which was determined by Sanyaolu, J. in Lagos while Abutu J. of Benin Division was on vacation. When Abutu J. was transferred from the Benin Judicial Division, he was succeeded there by Egbo Egbo, J. hence he too had to take over the case.

The plaintiff is said to have prevented the crew of the 4th respondent ship from leaving the ship and their travel documents were said to have been seized by the Immigration Department at the instance of the plaintiff. The respondents’ case was that since there was no court order arresting the crew of the ship, an application to enforce their fundamental human rights was filed at the Federal High Court Lagos.

That application was handled by Ukeje, J. of the Lagos Judicial Division of that court. The learned Judge granted the application and declared that the continued detention of the men is a violation of their fundamental human rights as guaranteed under section 31(1) of the 1979 Constitution. The Court also ordered the prompt return of their travelling documents in possession of the Immigration Department.

The plaintiff was also restrained from further detaining or arresting the ship’s crew.

The appellant/applicant was said to he dissatisfied with the afore-said orders made by Ukeje. J. An appeal was filed against it and an application for a stay of execution of the order was also filed. The plaintiff is said to have flagrantly disregarded the order of Ukeje. J. directing that the crew be allowed to disembark from the arrested ship. The application filed for a stay of the order was dismissed by the lower court. As a result of pressure on the government authorities from the embassy of the ship’s crew, some of them were released. But the captain and some key members of the ship’s crew were still detained. The plaintiff has since applied to join the key members as co-defendants. The application was granted and they were joined as the 5th to 10th defendants/respondents.