Mr. Francis Obi Iroegbu V. Mv Calabar Carrier & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

DONGBAN-MENSEM, J.C.A.

This is an interlocutory appeal against the ruling of the Hon. Justice A. Mustapha of the Federal High Court holden in Lagos, delivered on the 3rd June, 2004.

Resume of the facts which led to this appeal is necessary as a foundation. The appellant invoked the admiralty jurisdiction of the Federal High Court, when on the 19th January, 2004; he filed an action in rem against the five respondents.

Upon a motion exparte, the appellant caused the 1st – 4th respondents to be arrested and detained pending the production by the respondents, of a first class bank guarantee from a reputable bank in Nigeria. Having failed to comply with the said condition the 1st – 4th respondents remained under detention.

The respondents eventually filed a motion on notice upon which the trial court pronounced a ruling on the 3rd June, 2004, releasing unconditionally, the 1st – 4th respondents.

The reason for the release as stated in the detailed ruling is that the appellant’s claims are “… not maritime claims which can be commenced by an action in rem”.

Accordingly, the ex-parte order of the court made on the 20th January, 2004 was discharged. The 1st – 4th respondents were ordered to be “released immediately unconditionally from the arrest and detention ordered by…” the court.

The appellant is flustered by the said ruling and has come to this court upon four grounds of appeal.

Four (4) issues were distilled from the four grounds of appeal.

The issues formulated by the appellant are:-

“1. Whether by virtue of S. 3(2) (a) of the Partnership Law, Cap. PI, Laws of Lagos State, 2003 a partnership can in law exist between members of a company incorporated under the Companies and Allied Matters Act, 1990 so as to be embodied in a partnership agreement.

2. Whether the agreement between the appellant and the 5th respondent (i.e. exhibit W) on proper interpretation relates to the use or hire of the 1st – 4th respondents in Nigeria or can otherwise found a maritime claim.
3. Whether from the facts and circumstances of this case the learned trial Judge denied the appellant his right to fair hearing.
4. Whether from the facts and circumstances of this case the learned trial Judge was right in ordering the unconditional release of the 1st – 4th respondents.

The respondents formulated two issues for determination and these are:-

“1. Whether the learned trial Judge was right in holding that the Memorandum of Understanding between the appellant and the 8th respondents dated 8th January, 2002 was not an agreement for the use or hire of a ship within the meaning of section 2(3) (f) of the Admiralty Jurisdiction Act, 1991, Chapter A5, Laws of the Federation of Nigeria, 2004, and as such cannot found a maritime claim.

2. Whether the learned trial Judge was right in ordering the unconditional release of the 1st to 4th respondents.”

It is necessary to bear constantly in mind that this is an interlocutory appeal. The scope must be kept constricted as it where to the interlocutory issues raised so that one does not go into the main appeal at this interlocutory stage.