Susainah (Trawling Vessel) & Ors. V. Mr. Segun Abogun (2006)

LawGlobal-Hub Lead Judgment Report

PAUL ADAMU GALINJE, J.C.A.

This is an appeal against the judgment of Ukeje, Chief Judge of the Federal High Court sitting at Lagos in suit No. FHC/L/CS/1237/96 which was delivered on the 26th day of March 2004. The Respondent herein was the Plaintiff at the lower Court. The brief facts of the Respondent’s case as set out in his further amended statement of claim of 30th November, 2000 which is at page 138-141 of the record is that he and his son, Mr. Sola Abogun were out at sea fishing at night in their 40 H.P. Yamaha engine powered wooden boat at the coast of Ilepete town in Ilaje Ese-Odo Local Government Area of Ondo State. They had with them two types of fishing nets equipped with fishing gears such as floaters lead and paddles. It is the Respondents further statement that he had four hurricane lanterns hung on these giant floaters deposited at intervals along the stretch of his nets so that other fishermen and trawlers could identify their location at sea from a safe distance. Suddenly, at about 5.00 a.m they saw the light of trawling vessel at a distance. At this stage the Respondent instructed his son to lift up one of the lanterns to warn the trawler of their presence. In order to compliment the effort of his son, the Respondent also flashed the torchlight he was holding in the direction of the trawler to signify their presence. All these precautionary measures did not arrest the movement of the trawler towards them. As the trawler was dangerously close, the Respondent held his son by the hand and they both jumped into the water.

The trawler hit the boat and wrecked it. After this the trawler maintained its course and did not stop to rescue them. The Respondent floated by hanging onto the fuel tank of the Yamaha engine while his son held onto a piece of wood. They were both rescued by one Afork, also a fisherman who was operating his engine boat within the vicinity and was attracted to the scene by the noise caused as a result of the impact and the light of the Respondents torchlight.

It is the further statement of the Respondent that he narrated his ordeal to their rescuer and identified the 1st Appellant which was just about one nautical mile from the place of the incident. Mr. Afok then took the Respondent and his son in his boat and they pursued the first Appellant and caught up with it, the crews of the 1st Appellant including the 2nd Defendant reacted indignantly when accosted with their act, it was already daylight and the Respondent’s son and Afok identified the 1st Appellant as ‘SUSAINAH’ boldly written on its side. At this stage the crews of the 1st Appellant deposited with Mr. Afok a negligible portion of the respondent’s net which got entangled with the 1st Appellant’s net while trawling.

In consequence of the damage to the Respondent’s boat and equipments, the Respondent instituted an action against the Appellants at the Federal High Court Lagos, in which he claimed jointly and severally the sum of N747. 500.00 being special damages for the boat and the fishing equipments.

In addition the Respondent claimed the sum of N250,000.00 being compensation for loss of earnings from the 11th day of October 1996 till the final determination of this action and an interest of 20% on the judgment debt from the date of judgment till the final liquidation thereof.

In reaction to the statement of claim, the Appellants who were the Defendants at the lower court filed a statement of defence in which they denied the averments contained at paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 25 of the amended statement of claim. The Appellants however admitted the averment contained at paragraph 3, and partially admitted paragraph 2 of the statement of claim. With respect to the averments contained in paragraphs 1, 4, 5, 6, 20, 21, 22, 23 and 24 of the statement of claim, the appellants averred in their statement of defence that they were not in a position to admit or deny them as the facts deposed therein were within the respondent’s knowledge only.

In further averment by the appellants in their joint statement of defence, they denied ever being involved in an accident in the night in question. They also denied ever being confronted by the respondent. According to the appellants, the captain of Susainah had radio contacts with the Captains of three other trawlers within the vicinity who confirmed that there were victims of boat wreck at sea who required help. In line with navigation rules relating to life saving, Susainah stopped trawling and raised its nets to the water surface and commenced search for the victims along with the three other ships. Finally, the Appellants claimed that the victims were found and rescued by one of the three fishing trawlers called ‘Mystic Dawn’ that was within the area.

After pleadings were filed and exchanged, the matter proceeded to trial. By a motion dated 6th of September 2000, the Appellants sought for and were granted leave by the lower Court to withdraw their counter-claim against the Respondent. By this leave the counter-claim was struck out.

At the end of the trial and in a reserved judgment, the lower court found for the respondent and ordered the appellants to pay to the respondent a total of N955,000.00 representing N705,000,00 special damages and N250, 000.00 general damages for loss of earning. In addition, the Appellants were ordered to pay 10% interest on the judgment sum to the respondent.

In that judgment, the learned Chief Judge made a lengthy consideration of the counter-claim which had earlier on been withdrawn and being dissatisfied and aggrieved with the decision of the learned Chief Judge, the appellants, by a notice of appeal dated 13th of May 2004, have appealed to this Court. Embedded in their notice of appeal are six grounds of appeal which read as followings:-

“1. The learned Chief Judge erred in law by holding that the plaintiff had proved its claim of negligent liability against the defendants after failing to properly evaluate the totality of the evidence before Her Ladyship.

PARTICULARS OF ERROR

(a) The judgment of the learned Chief Judge (particularly pages 4 through to 6) contained copious reference to the review of evidence of PW1 to PW3 in proof of their claim.