GAMBO SALE V. THE STATE
August 21, 2025MUHAMMADU LIKITA JABI V. THE STATE
August 21, 2025MT. ORYX TRADER & ORS V. AMERICAN STEAMSHIP OWNERS MUTUAL PROTECTION & INDEMNITY ASSOCIATION INC
Legalpedia Citation: (2025-05) Legalpedia 66148 (CA)
In the Court of Appeal
Holden at Lagos
Mon May 12, 2025
Suit Number: CA/LAG/CV/260/2023
CORAM
Danlami Zama Senchi Justice of the Court of Appeal
Ruqayat Oremei Ayoola Justice of the Court of Appeal
Abdulazeez Muhammed Anka Justice of the Court of Appeal
PARTIES
1. MT. ORYX TRADER
2. ARIAL MARINE COMPANY
3. ETTERNA SHIP MANAGEMENT S.A.
APPELLANTS
AMERICAN STEAMSHIP OWNERS MUTUAL PROTECTION & INDEMNITY ASSOCIATION INC
(Trading under the name and style of Eagle Ocean Marine)
RESPONDENTS
AREA(S) OF LAW
ADMIRALTY LAW, MARITIME LAW, SHIPPING LAW, WRONGFUL ARREST, DAMAGES, CIVIL PROCEDURE, EVIDENCE, PRELIMINARY OBJECTIONS, APPEAL, PRACTICE AND PROCEDURE, CHAMPERTY AND MAINTENANCE, LEGAL ETHICS, UNDEFENDED PROCEEDINGS, INTERLOCUTORY APPEALS, CROSS-APPEALS
SUMMARY OF FACTS
The Appellants (MT. Oryx Trader, Arial Marine Company, and Etterna Ship Management S.A.) brought an action against the Respondent (American Steamship Owners Mutual Protection & Indemnity Association Inc, trading as Eagle Ocean Marine) claiming damages for wrongful arrest of their vessel MT. Oryx Trader.
The dispute arose from the Respondent’s earlier institution of Suit No. FHC/L/CS/1134/2020 seeking declarations that the Respondent was in breach of employment contract with crew members and orders for expenses and damages. The Respondent filed an ex-parte application for arrest of the 1st Appellant (MT. Oryx Trader) as security for the claim, which was granted on 28th August 2020. The Respondent provided an undertaking as to damages dated 10th August 2020.
Subsequently, the Respondent filed a notice of discontinuance of Suit No. 1134/2020, following which the lower court struck out the suit and discharged the 1st Appellant from the arrest order on 25th October 2021. The vessel had been under arrest for 424 days.
The Appellants then instituted Suit No. FHC/L/CS/78/2022 by Originating Summons claiming: (a) declaration that the arrest was wrongful and Respondent liable for damages; (b) payment of USD2,883,200 for loss of charter fees at USD6,800 per day for 424 days; and (c) 21% interest on the judgment sum.
The Federal High Court dismissed the Appellants’ claims for lack of merit, finding that there had been no judicial determination that the arrest was wrongful, and that the arrest was based on recognizable maritime labour convention claims that were not unreasonable or without probable cause. The court found that mere discontinuance of the arrest suit did not automatically make the arrest wrongful.
The Appellants appealed, and the Respondent filed a cross-appeal challenging the lower court’s decision to discountenance their counter-affidavit for failure to pay proper default fees. The Court of Appeal dismissed both the main appeal and cross-appeal.
HELD
Main Appeal:
1. The appeal was dismissed and the Federal High Court judgment affirmed.
2. The Court held that Section 13 of the Admiralty Jurisdiction Act requires a judicial finding that arrest was wrongful or without reasonable cause before liability for damages can be established.
3. The Court found that mere discontinuance of the arrest suit does not automatically establish wrongful arrest – the party claiming damages must prove through evidence that the arrest was unreasonable and without good cause.
4. The Court held that even where a counter-affidavit is struck out, the applicant must still satisfy the court that they are entitled to the reliefs claimed, as unchallenged evidence must still be credible and cogent.
5. The undertaking as to damages alone, without a finding of wrongful arrest, cannot establish liability for damages.
Cross-Appeal:
1. The cross-appeal was dismissed as academic since the substantive suit was decided in favour of the cross-appellants.
2. The Court distinguished between non-payment and inadequate payment of filing fees, holding that inadequate payment should result in direction to pay correct fees rather than striking out the process.
ISSUES
Main Appeal:
1. Whether Section 13 of the Admiralty Jurisdiction Act and Order 11 Rules (2) and (3) of the Admiralty Jurisdiction Procedure Rules, 2011 provided that for the respondents to be liable for damages for the arrest of the appellants’ vessel, there must be a finding of Court to the fact that the arrest was wrongful?
2. Whether the trial Court was not bound to enter judgment in favour of the Appellants by the undefended and unopposed originating summons before the trial Court?
3. Whether the respondents were not bound by their undertakings as to damages filed on the 10th of August, 2020 in suit no. FHC/L/CS/1134/2010 for the arrest of the appellants’ vessel MT. Oryx Trader?
Cross-Appeal: Whether the Court below was right to have discountenanced the Cross-Appellants’ Counter Affidavit for alleged failure to pay the prescribed default fee after having granted the application for extension of time without objection and following a later objection raised when arguments on the Originating Summons were already afoot
RATIONES DECIDENDI
WRONGFUL ARREST OF VESSEL – REQUIREMENT FOR JUDICIAL FINDING
A clear interpretation of Section 13 of the Admiralty Jurisdiction Act shows that the law does not automatically impose liability for arrest merely because the underlying action was discontinued. The Section provides for a minimum threshold for wrongful arrest which is that the arrest must have been ‘unreasonable and without good cause’. It is not enough to show that the arrest was discharged by the Court in FHC/L/CS/1134/2020 or that the Respondents had made an undertaking as to damages in FHC/L/CS/1134/2020.– Per RUQAYAT OREMEI AYOOLA, J.C.A.
BURDEN OF PROOF IN WRONGFUL ARREST CLAIMS – REQUIREMENT FOR EVIDENCE
The key phrase is ‘if it is found’. This implies that the Court in such proceedings must make a finding, based on evidence, that the arrest of the vessel was wrongful or without reasonable cause. To that effect, it is the party claiming damages that bears the evidential burden to establish that the arrest was either wrongful or made without reasonable cause.– Per RUQAYAT OREMEI AYOOLA, J.C.A.
DISCONTINUANCE OF ARREST SUIT – EFFECT ON WRONGFUL ARREST CLAIM
While the discontinuance may raise a presumption or suspicion as to the strength of the original claim, it does not, without more, constitute legal proof of wrongful arrest. The Respondents explained the reason for the discontinuance as being for reason that the 1st Appellant vessel had been surreptitiously sold to a third party. A claim for damages cannot succeed merely in assumption or procedural failure by the adverse party. – Per RUQAYAT OREMEI AYOOLA, J.C.A.
UNCHALLENGED EVIDENCE – REQUIREMENT FOR CREDIBILITY AND EVALUATION
The law is that the mere absence of a counter affidavit does not automatically entitle a plaintiff or applicant to judgment, especially in proceedings commenced by originating summons. It is settled that a Court is still duty-bound to consider the legal sufficiency of the evidence placed before it and determine whether the applicant has discharged the burden of proof imposed by law, even where the facts are not disputed.– Per RUQAYAT OREMEI AYOOLA, J.C.A.
EVALUATION OF UNCHALLENGED EVIDENCE – JUDICIAL DUTY
For unchallenged/uncontroverted evidence to be accepted, it must in itself be credible, cogent and relevant to the issue at stake, or the relief sought. Evidence that is glaringly incredible and logically incapable of belief will not and should not be accepted. The Court will act only on unchallenged or uncontroverted evidence only if same is credible. – Per RUQAYAT OREMEI AYOOLA, J.C.A.
CORRECTION OF PARTY NAMES – MISDESCRIPTION VERSUS CHANGE OF PARTY
It is trite law that the Court possesses the inherent power to correct misnomers or misdescriptions in the interest of justice. Such an amendment is permissible where it does not introduce a new legal person but merely reflects the identity of an existing party. The addition of the phrase ‘trading under the Name and Style of Eagle Marine’ appears to be a clarification of the party’s operating or trading name, and it does not in any way affect the substantive identity of the 1st Respondent. – Per RUQAYAT OREMEI AYOOLA, J.C.A.
CHAMPERTY AND MAINTENANCE – APPELLATE COURT JURISDICTION OVER EXTRANEOUS MATTERS
It is settled that an appellate Court ought not to venture into matters that did not arise at the Court of first instance, save where such matters have a direct bearing on the validity of the process itself. The subject matter of this appeal remains the alleged wrongful arrest of a vessel and the attendant claim for damages. The counsel to the Appellants is not a party to the proceedings before this Court, and the agreement between him and his clients, whatever its nature or implications, does not form part of the record of appeal or the issues submitted for determination.– Per RUQAYAT OREMEI AYOOLA, J.C.A.
DISTINCTION BETWEEN NON-PAYMENT AND INADEQUATE PAYMENT OF FEES
It is trite law that non-payment of filing fees is different from inadequate payment. While the former is the fault of counsel, the latter can be the fault of the Registry. Non-payment of filing fees is a serious omission by the appellant which, in effect, deprives the Court of jurisdiction to hear the appeal… On the other hand, inadequate payment of filing fees is usually the fault of the Registrar who made a mistake when he/she told the appellant the amount to be paid. In cases where the fees paid by the appellant are inadequate, it is the duty of the presiding Judge to order the erring appellant or party to pay the correct filing fees instead of striking out the appeal or process. – Per RUQAYAT OREMEI AYOOLA, J.C.A.
ACADEMIC APPEALS – DEFINITION AND DISMISSAL
An academic appeal is one which even if decided in favour of an Appellant is of no practical value or useful purpose at all as it is related to dead issue/s that are no longer material and relevant in the dispute between the parties. A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the Plaintiff even if judgement is given in his favour. – Per RUQAYAT OREMEI AYOOLA, J.C.A.
APPROBATE AND REPROBATE – CONSISTENCY IN LITIGATION POSITIONS
It is the law that a party must be consistent in the presentation of his case and cannot approbate and reprobate by changing his disposition willy nilly in the course of a litigation exercise. The Cross-Respondents cannot now approbate and reprobate by challenging the juristic personality of a party they themselves brought before the Court. The Cross-Respondent will not be allowed to take a position inconsistent with one previously taken. – Per RUQAYAT OREMEI AYOOLA, J.C.A.
ADMIRALTY JURISDICTION ACT SECTION 13 – REQUIREMENTS FOR LIABILITY
The law above implies a finding by the Court that the alleged arrest was wrongful or without cause. The mere fact that an arrest was made against a vessel and subsequently released by an order of Court does not ipso facto make the Arrestor of the vessel or ship liable to damages for wrongful arrest. The applicant must on the balance of probabilities prove their case in order to establish before the Court the alleged wrongful arrest or made without probable cause. – Per ABDULAZEEZ MUHAMMED ANKA, J.C.A.
SCRUTINY OF AFFIDAVIT EVIDENCE – CREDIBILITY ASSESSMENT
The general rule that uncontroverted evidence ought to be accepted by the Court having been deemed admitted by the opposing party is not without an exception. Like oral evidence, the affidavit evidence of a witness also is liable to be scrutinized so as to ascertain the credibility of same for the Court to act on the statements therein in order to evaluate the evidences so as to arrive at a just conclusion. – Per ABDULAZEEZ MUHAMMED ANKA, J.C.A.
THRESHOLD FOR WRONGFUL ARREST COMPENSATION – MULTIPLE REQUIREMENTS
For an arrest to be declared wrongful, certain thresholds must be met before compensation is awarded… It needs to be said that for Section 13 of the Admiralty Jurisdiction Act, Laws of the Federation of Nigeria, 2004, to apply certain parameters must be established, such as that the arrest was made unreasonably and without good cause.– Per RUQAYAT OREMEI AYOOLA, J.C.A.
CASES CITED
STATUTES REFERRED TO
1. Admiralty Jurisdiction Act 1991
2. Admiralty Jurisdiction Procedure Rules 2011
3. Court of Appeal Act 2004 (as amended)
4. Court of Appeal Rules 2021
5. Federal High Court (Civil Procedure) Rules 2009
6. Federal High Court (Civil Procedure) Rules 2019
7. Constitution of the Federal Republic of Nigeria 1999 (as amended)
