Mobil Oil Nigeria Plc. & Ors. V. Kena Energy International Limited (2000)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

The respondent and appellants herein were respectively, plaintiff and defendants in suit No.FHC/CN/CS/6/98 filed before the Federal High Court in respect of a dispute arising from a contract agreement entered into between the plaintiff and the 1st defendant. By that agreement dated 20th November, 1996, the plaintiff hired on charter to the 1st defendant its barge known as Prim 1 for an initial period of 6 months with effect from 20/11/96 at a daily rate of N24,000 subject to other terms and conditions. At the expiration of the initial period, dispute arose as to whether or not there was option for renewal. While the plaintiff maintained that there was such an option and that the defendants had by conduct renewed the contract, the defendants denied the assertion contending that the plaintiff had been written to remove its barge which was leaking and unsuitable for the purpose for which it was chartered. Against this background the plaintiff on 4/2/98, commenced an action against the defendants alleging amongst other things a breach of the charter agreement and claiming against them jointly and severally various sums of money as damages and in particular the plaintiff sought in paragraph 50(a) of the statement of claim

“50(a) An order of this Honourable court directing the immediate delivery up by the defendants to the plaintiff of the plaintiff’s barge Prim I in the conditions in which it was leased to them.

The defendants in their statement of defence denied the plaintiff’s claim and in paragraph 18(vi) thereof challenged the jurisdiction of the court below to adjudicate over the plaintiff’s claim.

While the suit was pending, the plaintiff on 24th March, 1998 filed a motion on notice dated 16 March, 1998 praying for the following reliefs:-

An interlocutory order of mandatory injunction commanding the defendants/respondents to produce and deliver up to the plaintiff/applicant the plaintiff’s barge known as Prim 1 let by the plaintiff/applicant to the defendants/respondents under a contract of hire which the defendants/respondents have continued to detain by themselves and through their agents, servants and/or privies without payment of hire charges pending the hearing and determination of this suit.

The application was supported by a 30 paragraph affidavit sworn to by Dr. Obioha M. Obioha, a petroleum engineer and Chief Executive of the plaintiff company. Annexed to the motion were 8 exhibits marked A, B, C, D, E, F, G and H. In response the defendants filed a counter-affidavit of 8 paragraphs sworn to be one Godwin Ugochukwu the depot supervisor of the defendants. There were 6 exhibits, 1-6 to the counter-affidavit. The application was argued by counsel for the parties. In a considered ruling delivered on 26/5/98, the learned trial Judge Nwaogwugwu J. granted the application in the following terms:

The defendants/respondents, their agents, servants privies and/or hirelings are hereby ordered to produce and deliver to the plaintiff/applicant forthwith the plaintiff’s barge known as Prim 1 which barge has continued to be detained by themselves and or through their agents, servants, privies or hirelings pending the hearing and final determination for this suit.

Dissatisfied with the above ruling, the defendants lodged an appeal in this court.

Thereafter, the defendants filed another application on notice before the court below praying for the following reliefs:-

1. An order staying further proceedings in this suit pending thus:-

(a) The determination of the jurisdiction of this Honourable court in this matter; and

(b) The determination of the appeal filed in this suit.

2. An order for stay of execution of the order made on 26/5/98 by this Honourable court pending the determination of jurisdiction of this Honourable court and the appeal filed in this suit.

The motion was supported by affidavit of 16 paragraphs and a reply affidavit of 8 paragraphs. The plaintiff responded with a counter-affidavit of 25 paragraphs. The application was also argued by counsel for the parties and in a considered ruling delivered on 29/9/98, the learned Judge Nwaogwugwu J. dismissed same. Aggrieved thereby, the defendants filed an appeal to this court.

By an order of this court granted at the instance of the defendants, both appeals were on 27/3/99 consolidated for hearing. The appeal against the first ruling on mandatory injunction filed on 24/3/98 is predicated on four grounds one of which was withdrawn and struck out. The surviving grounds without their particulars read as follows:-