MT “DELMAR” & ANOR V MT “ANE (EX MT LESTE”) & ORS

MT “DELMAR” & ANOR V MT “ANE (EX MT LESTE”) & ORS


IN THE COURT OF APPEAL

IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON FRIDAY, 4TH MARCH, 2016


Suit No: CA/L/262/2010

CITATION:

Before Their Lordships:

CHINWE EUGENIA IYIZOBA, JCA

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA

JAMILU YAMMAMA TUKUR, JCA


BETWEEN

MT “DELMAR”
OWNERS OF THE MV “MT DELMAR MAJURO”
(APPELLANTS)

AND

MT “ANE (EX MT LESTE”)
TRILIUM NAVIGATION S.A. PANAMA (OWNERS OF THE MT “ANE (EX MT LESTE’)
ZENON PETROLEUM & GAS LTD.) (CAVEATOR/INTERESTED PERSON)
(RESPONDENTS)


PRONOUNCEMENT


A. ACTION
1. Reliefs – How the Court cannot grant reliefs in favour of a non-party in a suit
Whether Court can grant reliefs in favour of a non-party

It is indeed trite law that a Court cannot grant reliefs in favour of persons who are not parties in a suit. In the case of Admin Gen., C.R.S. v. Chukwuogor (Nig. Ltd) (2007) 6 NWLR (PT.1030) 398 @ 413-414; Ngwuta JCA (as he then was) observed:

“With due respect, the third parties, innocent or otherwise, not being parties to the proceedings cannot have ex-parte order made in their favour. They are not parties either directly or by representation. See Peenok Investment Ltd v. Hotel Presidential Ltd. (1982) 12 5C 1. In so far as the Court below based its order on the need to protect the interest of those who are strangers to the proceedings the order is gratuitous and made without jurisdiction. If a Court cannot grant a party before it a relief not asked for then there can be no basis for a Court making order in favour of a non party to the proceedings. See Bank of the North Ltd. & Anor. V. Aliyu (1999) 7 NWLR (Pt. 612) 622; Ogbe v. Esi (1943) 9 WACA 76; Ekpenyong v. Nyong (1975) 2 SC 71: and Oyediran v. Amoo (1970) 1 All NLR 313.” Per IYIZOBA, JCA. read in context

B. COURT                                                                                                                          2. Jurisdiction – What is not within the jurisdiction of a Court and what determines the jurisdiction of a Court
What determines jurisdiction of a Court

The Appellants in their Reply brief made the point that it is not within the jurisdiction of a Court to grant reliefs in favour of a party who has no claim before it as it is indeed the statement of claim that determines the jurisdiction of the Court. I agree. Per IYIZOBA, JCA. read in context

C. JURISDICTION
3. Admiralty Jurisdiction – Purpose of a caveat in exercise of admiralty jurisdiction of Court

The actual purpose of a Caveat is to enable the caveator be put on notice before the arrest or release of the vessel. In the event of the need for a follow-up action in the matter of the caveat requiring the Court to grant a relief or make an Order in favour of the caveator, the caveator must take steps to make himself a party in the suit and also claim against the adverse party. It is the claim that would enable the Court determine whether or not it has jurisdiction and whether the claimant is entitled to the relief sought. In the case of M/V “Da Qing Shan” V. P.A.C. Ltd (Supra) cited by both parties Uwaifo JCA (as he then was) made it clear that an action in rem is a pre-requisite to the making of any order by a Court in an admiralty suit. This is simple logic. The fundamental objective of arresting a vessel or ship is to obtain satisfaction of a judgment in an action in rem. Ibe Abai & Co (Nig) Ltd & Anor v. Oceanic Traders Navigation Ltd (1907- 1979) 1 NSC 418.Why then, would the issue of arrest or security in lieu arise if there is no subsisting action in rem against the vessel or when the person seeking the security is not a party nor has a claim in the suit? Per IYIZOBA, JCA. read in context

4. Duty of Parties – Duty of a Party who files a process
Duty of party to follow up on service after filing a process

Learned counsel for the Appellants is right in his submission in his Reply brief that a Party who files a process and pays the necessary service fees is not at liberty to go to bed after filing but is duty bound to follow up on service and the matter generally. Ajayi v. Omoregbe (1993) 6 NWLR (Pt. 301) 512 @ 534. Per IYIZOBA, JCA. read in context

D. MARITIME LAW
5. Arrest of a Ship or Res – Purport of filing a caveat against release from arrest of a ship

Order VI Rule 7 of AJPR provides that where a ship or other property is under arrest in a proceeding, a person may file in the Court a caveat against the release from arrest of the ship or property in lieu of obtaining a further arrest of that ship or property. The fact that the caveat is filed in lieu of obtaining further arrest of the vessel underscores the point that a claim is necessary before any relief can be granted the caveator by the Court because there has to be a claim before an application to arrest a vessel can be made. Per IYIZOBA, JCA. read in context

E. SHIPPING AND ADMIRALTY
6. Caveat – The implication when a caveator fails to serve parties with copies of caveat
Consequences of failure of caveator to serve parties with caveat

Learned senior counsel for the Appellants is right in his submission that a Caveator who failed to serve the parties with copies of the Caveat cannot reasonably expect the same parties to serve him with any of their processes. Per IYIZOBA, JCA. read in context

7. Duty of Parties – The duty imposed by law on a party who files a process in a matter
Duty of a party to ensure service of process on all parties

Furthermore, a party who files a process in a matter has a duty in law to ensure service of same on all parties in the proceedings as failure to do so would deprive the Court of jurisdiction to grant any relief in the matter. Per IYIZOBA, JCA. read in context

F. PRACTICE AND PROCEDURE
8. Court Process – The presumption when a process is filed and is in the Court file
Whether attention of Court must be called to a process filed

If a process is filed and is indeed in the Court file, unless the Court’s attention is called to the process, it is presumptive to assume that the Court is aware of the process. Per IYIZOBA, JCA. read in context

G. INTERPRETATION OF STATUTE
9. Order VI Rule 7 of Admiralty Jurisdiction Procedure Rules, 1993 – Interpretation of Order VI Rule 7 of Admiralty Jurisdiction Procedure Rules, 1993 as to options open to a person claiming against a ship under arrest

Order VI Rule 7 of the AJPR, 1993 provides:

“Where a ship or other property is under arrest in a proceeding, a person nay file in the Court a caveat against the release from arrest of the ship or property in lieu of obtaining a further arrest of that ship or property.”

By the above provision where a person has a claim against a ship that is already under arrest in a proceeding, it can in lieu of obtaining a further arrest of the ship file a caveat against its release. The above provision to my mind implies that the caveator must have filed a claim against the ship in order to give him the right to file a caveat against the release of the ship. Per IYIZOBA, JCA. read in context

10. Order VII Rule 1 (1) Of Admiralty Jurisdiction Act – Interpretation of Order VII Rule 1(1) of Admiralty Jurisdiction Act as to whether institution of an action in rem precedes application for arrest of ship

Order VII Rule 1 Sub-Rule (1) of AJA provides that

“a party to a proceeding commenced as an action in rem may by motion ex parte apply for an arrest warrant in respect of the ship or other property against which the proceeding was commenced.”

This means that institution of an action in rem precedes application for arrest of the ship. A fotiorari a caveat against the release of a ship. Per IYIZOBA, JCA. read in context

H. JUDGMENT AND ORDER
11. Functus Officio – The attitude of the trial Court to decision of a Court of coordinate jurisdiction
When does a Court become functus officio

I agree with learned senior counsel for the Appellant that the learned trial judge cannot review the decision of a Court of coordinate jurisdiction as doing so would amount to sitting on appeal over the decision. In addition to the authority cited by learned counsel for the Appellants, NDIC v. S.B.N PLC (2003) 1 NWLR (PT 801) 311 see also Federal Republic of Nigeria v. Vincent Ogbulafor 4 Ors (2012) LPELR-7947 (CA) where it was held that once a Court has given a decision on an issue or matter placed before it for adjudication it becomes functus officio and it is precluded from reviewing or varying the form of judgment or order apart from the correction of clerical mistakes or occidental slips. Nigerian Army v. Iyela (2N8t 16 NWLP (Pt. 1118) 115. Per IYIZOBA, JCA. read in context


LEAD JUDGMENT DELIVERED BY IYIZOBA, JCA


This appeal raises a rather novel and interesting question as regards arrest of vessels, caveats and securities for the release of vessels in admiralty matters. The question to be decided is whether under any circumstances a Court has jurisdiction to order that security for release of a vessel be provided when (1) the applicant is not a party in the pending suit (2) the application is in respect of another suit in which the Respondent is not a party (3) there is no pending action in rem. The facts of the case as gathered from the Record of Appeal are as follows: By a Statement of Claim doted 29/10/07, the 1st & 2nd Respondents herein as Plaintiffs commenced an admiralty action “in rem” at the Federal High Court. Lagos against the Appellants herein, claiming the sum of US$7,500,000.00 (Seven Million Five Hundred Thousand United States Dollars), being damages for alleged collision damage done by the 1st Appellant vessel to the 1st Respondent vessel during manoeuvring operations at the Commodore Pool, Lagos on 25/10/07. At the time of the alleged collision, the 1st Respondent vessel was under the custody of the Admiralty Marshal of the Federal High Court pursuant to an Order for her arrest dated 22/11/06. The Writ of Summons and Statement of Claim are at pages 1-5 of the Record of Appeal. Simultaneously with the issuance of the writ, the 1st & 2nd Respondents applied for and obtained an ex-parte order arresting and detaining the 1st Appellant vessel to secure their claim. The 2nd Appellant, although not admitting liability but desirous of having its vessel the 1st Appellant released furnished security by way of a Bank Guarantee to secure the 1st and 2nd Respondents’ claim. The 3rd Respondent had much earlier instituted Suit No FHC/L/CS/245/2006 against the 1st and 2nd Respondents: Zenon Petroleum and Gas Limited V. M/T Leste and Owners of M/T Leste at the Federal High Court, Lagos Judicial Division. She had obtained an Order of arrest of the 1st Respondent vessel in the suit. The Court had ordered the 1st and 2nd Respondents to provide a Bank guarantee for the release of the 1st Respondent but they were unable to provide the Bank guarantee. The 3rd Respondent claimed that the 1st Respondent vessel thus became the only pre-judgment security available to her, the 1st and 2nd Respondents being foreigners who did not have assets within the jurisdiction of the Court. While the 1st Respondent was still under arrest at the behest of the 3rd Respondent, the 1st Appellant vessel collided with the 1st Respondent vessel and allegedly caused her extensive damage which the 3rd Respondent claimed further deteriorated her value to the extent that the proceeds from her sale would be insufficient to satisfy her claim in Suit No: FHC/L/CS/245/2006.

Following the said collision the 1st and 2nd Respondent as stated earlier above instituted the present Suit FHC/L/CS/994/2007 and obtained an Order for the arrest of the 1st Appellant. The 3rd Respondent then filed a caveat before the Admiralty Marshal of the Court who had the custody of the 1st Appellant against its release. The caveat was not however served on the Appellants and the 1st and 2nd Respondents. Being unaware of the caveat, the Appellants filed an application at the Court below for the release of the 1st Appellant from arrest without notifying the 3rd Respondent and the 1st Appellant was duly released on provision of a Bank guarantee by the Appellants. The 3rd Respondent on becoming aware of the release filed a Motion on Notice for an Order directing the 1st and 2nd Appellants to provide security for its claims in Suit No. FHC/L/CS/245/2006 – Zenon Petroleum and Gas Limited V. M/T Leste and Owners of M/T Leste or in the alternative, an Order setting aside or varying the order of the release of the 1st Appellant so that any security provided by the 1st and 2nd Appellants for the release of the 1st Appellant from arrest be also applied in securing the claims of the 3rd Respondent against the 1st and 2nd Respondents in suit no FHC/L/CS/245/2006. The said application is at pages 28-36 of the Record of Appeal. The Appellants in opposition to the said application filed a Counter-Affidavit which is at pages 41-42 of the Record. Arguments were taken and concluded on 12/11/08 before the learned trial Judge. The record of proceedings of the said date is at pages 70-74 of the record, and in a considered ruling delivered on 02/02/09, the learned trial Judge granted the said application, varying the order of release of the 1st Defendant/ 1st Appellant from judicial arrest by the Plaintiffs/1st & 2nd Respondents herein, holding that the security provided by the Defendants/Appellants be also applied in and towards securing the claims of the 3rd Respondent against the Plaintiffs/1st & 2nd Respondents in Suit No: FHC/L/CS/245/2006: ZENON PETROLEUM & GAS LTD V. MT LESTE & OWNERS OF MT LESTSE. A copy of the Ruling of the Court is at pages 77- 84 of the Record of Appeal. Dissatisfied with the Ruling, the Appellant filed a Notice of Appeal on 10/02/09 with five (5) grounds of Appeal. The grounds of Appeal without their particulars read as follows:

1. The learned trial Judge erred in law and acted without jurisdiction when notwithstanding that the caveator/Respondent was not a Party to the proceedings before him, his lordship nevertheless granted an Order in their favour.

2. The learned trial judge erred in law and acted without jurisdiction when he granted an Order in favour of a party who has no locus standi to request for any relief before him.

3. The learned trial judge erred in law when he held that the caveat against arrest filed by the Caveator was filed, service paid for and served on the Admiralty Marshall of the lower Court, and therefore the Caveator ought to have been put on notice of the application for the release of the MV “DELMAR” in the present proceedings when his lordship had no evidence before him that the caveat against release was ever served on the Appellant herein.

4. The learned trial judge erred in law when he held that the Caveator/Respondent was entitled to be a beneficiary of the security provided by the Appellant for the release of their vessel, the 1st Appellant herein when the caveator/Respondent had or made no claim known to Admiralty or at all against the Appellants.

5. The learned trial judge erred in law when he ordered retrospectively that the security provided by the Appellants for the release of their vessel, the 1st Appellant herein from judicial arrest should also be applied in securing the claims of the Applicants against the Plaintiffs in the pending Suit No. FHC/L/CS/245/2005 between Zenon PETROLEUM & GAS LTD v. MT LESTE & OWNERS OF MT LESTSE & ANOR., when the caveator/Respondent was not a party to the proceedings before him.

The parties filed and exchanged briefs of argument. The Appellants’ brief was settled by Ayo Olorunfemi/Rotimi Oduba of Femi Atoyebi & Co Solicitors. Out of the five grounds of appeal, they distilled four issues for determination as follows:

i. Whether the learned trial Judge was right and/or acted with jurisdiction in granting a relief in favour of the caveator/ Respondent who was and is not a party to the proceedings and who does not have any claim before the Court? (Grounds 1& 2)

ii. Whether the trial Judge was right in holding that the Caveator/3rd Respondent who failed to serve the Appellants the Caveat against the release of the vessel is entitled to be served by the same Appellants with their application for the release of the vessel or whether a Caveator who fails to serve a Process on a party is entitled to be served with Court processes in the same matter? (Ground 3)

iii.Was the Caveator/3rd Respondent entitled to be a beneficiary of the security provided by the Appellants for the release of their vessel, the 1st Appellant herein, when they had no or made no claim known to Admiralty or at all against the Appellants? (Ground 4)

iv. Whether the lower Court was right when it ordered retrospectively that the security provided by the Appellants for the release of their vessel in the suit before him should also be applied in and towards securing the claim of the 3rd Respondent against the Plaintiffs/1st & 2nd Respondents in another suit. Suit No.: FHC/L/CS/245/2006; ZENON PETPOLEUM & GAS LTD v. MT LESTE & OWNERS OF MT LESTSE to which the Appellants were not Parties? (Ground 5)

The 1st and 2nd Respondents did not participate in this appeal and filed no brief .The 3rd Respondent’s brief of argument was settled by Mr. Adolphus Nwachukwu of the chambers of Mike Igbokwe (SAN) & Co. Therein, they adopted the four issues formulated by the Appellants, though couched in slightly different language. I shall adopt the issues as formulated by the Appellants in the determination of this appeal.

ARGUMENTS ON THE ISSUES ISSUE ONE
Whether the learned trial Judge was right and/or acted with jurisdiction in granting a relief in favour of the Caveator/Respondent who was and is not a party to the proceedings and who does not have any claim before the Court? (Grounds 1& 2)

APPELLANTS’ ARGUMENTS

Learned Counsel on this issue submitted that the 3rd Respondent was not a party in this action but was a party in another action Suit No. FHC/L/CS/245/2006 before another Judge in which the Appellants are not parties. Counsel submitted that the 3rd Respondent cannot therefore lawfully ask for or be granted any relief in this action. He further submitted that the 3rd Respondent was merely a caveator against the release of the Appellants’ vessel and does not have a substantive claim which would confer on the Court jurisdiction to grant the reliefs claimed. Counsel submitted that it cannot therefore be the duty of the Appellants to secure a claim made against another party in another suit in which they were not made parties.

Learned counsel submitted that it is a legal requirement that for a party to been titled to a relief before a Court of law, he must not only be a party to the proceedings in which he is seeking the relief but must also have a substantive relief, failing which the Court would lack the requisite jurisdiction to entertain the relief. He submitted that under the Rules of the Federal High Court, a claim can only be commenced by a Writ and not a Caveat. Order 3 Federal High Court (Civil Procedure Rules) 2009.

Counsel submitted that if a Party seeking a relief from the Court lacks the requisite locus standi to request the relief, then the Court would also lack the necessary jurisdiction to entertain and/or grant the said relief. Counsel cited and relied on the following cases: Anya v. Iyayi (1993) 7 NWLR (PT.305) PG.209; Adejumo v. Military Gov. Of Lagos State (1972) 1 ALL NLR 164: Emwezor v. Anyejekwe (1964) 1 ALL NLR 14; Ege Shipping & Trading Ind V. Tigris Int’l Corp. (1999) Pes Ent’l Copp. 14 NWLR (PT.637) 70 @ 89: Adeyemi v. Opeyori (197 ) 9 – 10 S.C. 31: Chinda v. Amadi (2002) 7 NWLR (PT. 767) 505 @ 515; Madukolu v. Nkemdilim (1962) 2 SCNLR 34; M/V “Da Qing Shan” v. P.A.C. Ltd (1991) 8 NWLR (PT. 209) 354: CKP Fishing Company Limited v. Owners Of Motor Vessel Woo Yang (2000) FJHV 204; HB G0001J. 1998 20/01/00).

Learned Counsel relying also on the cases of Admin Gen., C.R.S. v. Chukwuogor (Nig Ltd.) (2007) 6 NWLR (PT.1030) 398 @ 413 – 414; C.C.B. (Nig.) Plc v. O’silvawax Int. Ltd (1999) 7 NWLR (PT.609) 97 @ 103 – 104 H-A; Peenok Inv. Ltd. v. Hotel Presidential Ltd 91983) 4 NCLR 122 submitted that the fundamental principle of law is that the Court cannot grant an Order in favour of a non-party to the proceedings before it.

3RD RESPONDENT’S ARGUMENTS

Learned Counsel for the 3rd Respondent on issue one submitted that the Court below had jurisdiction to hear and determine the 3rd Respondent’s application having regard to the circumstances surrounding the caveator/interested Person’s Motion on Notice. Counsel submitted that the 3rd Respondent was Caveator/interested person or an intervener within the meaning of Order 1 Rule 3 of the Admiralty Jurisdiction Procedure Rules, (‘AJPR’) 1993 at the time it brought its application; that the 3rd Respondent properly entered a caveat against the release of the 1st Appellant while it was still under arrest; that the caveat was served on the Court below through its Admiralty Marshal/Deputy Chief Registrar who was satisfied with the caveat before it was filed; that the Appellants’ application for the release of the 1st Appellant from arrest/detention was not served on the 3rd Respondent even though its caveat was in force and no security was provided for against its claim. Counsel further submitted that at the time the 3rd Respondent’s caveat was filed and served, the 3rd Respondent was a person who could have proceeded against the 1st Appellant or the Appellants in an action in rem based on the 1st Appellant’s collision with the 1st Respondent which was the only security the 3rd Respondent had to satisfy its claim in Suit No FHC/L/CS/245/2006: thus reducing its sale valuation and making the 1st Respondent’s proceeds of sale unable to satisfy the 3rd Respondent’s claim in that suit.

Counsel submitted that the 1st Appellant was released from arrest because of the provision of a Bank guarantee by the Appellants. He argued relying on MN “DA QUING SHAN” & 2 Ors v. Pan Asiatic Commodities PTE Ltd (1991) 8 NWLR (Pt.209) 354 at 369, G-H that the bank guarantee was to satisfy the claim of the 1st and 2nd Respondents in the suit; that once the 1st Appellant was released from arrest the Bank guarantee served as the ‘res’ the subject matter of the suit. Counsel further argued that upon the release of the 1st Appellant, the 3rd Respondent’s caveat against it can only be activated or proceeded against the Bank guarantee and not on the 1st Appellant which was no longer within the jurisdiction of the Court below. Further, that since the 1st Appellant was no longer within the jurisdiction of the Court, the 3rd Respondent can no longer arrest and detain the 1st Appellant under Sections 1, 2 (2) and (3), 3 and 5(2) of the AJA but can only take steps or proceed against the Bank guarantee which is the only res outstanding in the suit.

It was submitted that even though the 3rd Respondent was not a party to the suit, it applied as an interested person so that the Bank guarantee provided by the Appellants for the benefit of the 1st and 2nd Respondents will be varied to satisfy its claim in Suit No FHC/L/C5/245/2006. It was further submitted that since it was the 1st Appellant that collided with the 1st Respondent while under arrest by the 3rd Respondent and caused it damage which reduced its sale valuation, the 3rd Respondent was entitled ex debito justitiae to proceed against the 1st Appellant in rem or in the alternative use the Bank guarantee provided for the benefit of the 1st and 2nd Respondents who had failed, refused and/or neglected to provide the 3rd Respondent with a Bank guarantee in Suit No FHC/L/CS/245/2006.

Learned Counsel submitted that a person may not be a party to a suit but may apply as an interested party based on his interest in the suit. He submitted that in the present case, the 3rd Respondent applied to the Court below as a caveator/interested person and the Court below was within its rights to grant the relief claimed. Counsel further submitted that the 3rd Respondent had the locus standi to bring the application because it had already issued and served a caveat against the release of the Appellant to the Admiralty Marshal of the Court below who for all intents and purposes was in custody of the 1st Appellant while under arrest. He submitted that it was on record that the 1st Appellant was released from arrest without recourse to the 3rd Respondent despite the caveat it placed on the release of the 1st Appellant. Counsel submitted that it was also on record that the extensive damage caused to the 1st Respondent by its collision with the 1st Appellant led to its deterioration to the extent that the proceeds from the sale of the 1st Respondent would be insufficient to satisfy the claim of the 3rd Respondent in Suit No: FHC/L/CS/245/2006.

Learned Counsel finally submitted that the learned trial Judge was right and/or acted with jurisdiction in granting the relief claimed by the 3rd Respondent having regard to the circumstances surrounding the 3rd Respondent’s Motion on Notice. He urged the Honourable Court to so hold.

The Appellants filed a Reply brief in which they addressed the points raised in the 3rd Respondents brief. I shall refer to the submissions as the need arose in the resolution of issue one.

RESOLUTION OF ISSUE ONE:

The crux of issue one is whether the Court had jurisdiction to grant reliefs in favour of the 3rd Respondent who was not a party in the suit and who apparently has no claim against the Appellants. It is indeed trite law that a Court cannot grant reliefs in favour of persons who are not parties in a suit.In the case of Admin Gen., C.R.S. v. Chukwuogor (Nig. Ltd) (2007) 6 NWLR (PT.1030) 398 @ 413 – 414; Ngwuta JCA (as he then was) observed:

“With due respect, the third parties, innocent or otherwise, not being parties to the proceedings cannot have ex-parte order made in their favour. They are not parties either directly or by representation. See Peenok Investment Ltd v. Hotel Presidential Ltd. (1982) 12 5C 1. In so far as the Court below based its order on the need to protect the interest of those who are strangers to the proceedings the order is gratuitous and made without jurisdiction. If a Court cannot grant a party before it a relief not asked for then there can be no basis for a Court making order in favour of a non party to the proceedings. See Bank of the North Ltd. & Anor. V. Aliyu (1999) 7 NWLR (Pt. 612) 622; Ogbe v. Esi (1943) 9 WACA 76; Ekpenyong v. Nyong (1975) 2 SC 71: and Oyediran v. Amoo (1970) 1 All NLR 313.”

Both the 3rd Respondent herein and the Appellants agree that the 3rd Respondent was not a party in the suit at the lower Court. Learned counsel for the 3rd Respondent however argued that the Court had jurisdiction to make the orders notwithstanding that the 3rd Respondent was not a party to the suit because she was a caveator/interested person and also because of the special circumstances under which the Motion on Notice was brought. Counsel quoted several Sections and Rules of the Admiralty Jurisdiction Act (AJA) and the Admiralty Jurisdiction Procedure Rules, (AJPR) 1993 in support of his contention. The question therefore is whether the AJA and the AJPR has created an exception to the trite principle of law that a Court has no jurisdiction to grant a relief or make an Order in favour of a person who is not a party in the suit.

The Appellants in their Reply brief made the point that it is not within the jurisdiction of a Court to grant reliefs in favour of a party who has no claim before it as it is indeed the statement of claim that determines the jurisdiction of the Court. I agree. The mere filing of the caveat against the release of the vessel was not enough to confer jurisdiction on the Court to make those orders.

The words “caveat”, “caveator” and “interested person” were defined in Order 1 Rule 3 of the AJPR. The definitions in no way support the arguments of the 3rd Respondent. The actual purpose of a Caveat is to enable the caveator be put on notice before the arrest or release of the vessel. In the event of the need for a follow-up action in the matter of the caveat requiring the Court to grant a relief or make an Order in favour of the caveator, the caveator must take steps to make himself a party in the suit and also claim against the adverse party. It is the claim that would enable the Court determine whether or not it has jurisdiction and whether the claimant is entitled to the relief sought. In the case of M/v “DA QING SHAN” V. P.A.C. Ltd (Supra) cited by both parties Uwaifo JCA (as he then was) made it clear that an action in rem is a pre-requisite to the making of any order by a Court in an admiralty suit. This is simple logic. The fundamental objective of arresting a vessel or ship is to obtain satisfaction of a judgment in an action in rem. Ibe Abai & Co (Nig) Ltd & Anor V. Oceanic Traders Navigation Ltd (1907- 1979) 1 NSC 418.Why then, would the issue of arrest or security in lieu arise if there is no subsisting action in rem against the vessel or when the person seeking the security is not a party nor has a claim in the suit?

One of the contentions of the 3rd Respondent is that failure of the Appellants to serve her notice of the application to release the 1st Appellant created a special circumstance that gave the Court jurisdiction to hear and grant her application even though she was not a party in the suit. This argument is clearly misconceived. If indeed the 1st Appellant was released without any notice being served on the 3rd Respondent (assuming without conceding that the Appellants were indeed served with the 3rd Respondent’s caveat), the most that can happen is that it would render the defaulting parties liable in contempt of Court. It does not create any special circumstance giving the 3rd Respondent the right to proceed against the Appellants on the security in the absence of any pending suit.

However, it is doubtful whether the caveat was duly registered and served on the Appellants and the 1st and 3rd Respondents. Order VI Rules 1-11 of the AJPR contain provisions relating to caveats. By Order VI Rule 11 (2) the Registrar shall establish and maintain a register to be known as the Register of Caveats against Release. The 3rd Respondent’s caveat, it appears was not registered and so could not have been served on the Appellants and the 1st and 2nd Respondents. In their counter affidavit in opposition to the motion of the 3rd Respondent at page 41 of the Record the Appellants as Defendants denied being served with the caveat. This lack of service is supported by Exhibit B annexed to the affidavit in support of the motion on notice of the 3rd Respondent of 5/12/07, a letter written by Mr. Mike Igbokwe SAN to the chief Judge of Federal High Court at page 35 of the Record. The relevant portion of the letter reads:

“Our client is the Plaintiff in Suit No. FHC/CS/245/2006: Zenon Petroleum & Gas Ltd v. The M/T Leste and the Owners of the M/T/ Leste. The vessel M/T Leste was detained by the Admiralty Marshall at the “Commodore Pool” pursuant to the execution of the warrant of arrest dated 29/3/06 obtained by our client until such a time as the Defendants therein would provide a sufficient and acceptable Bank guarantee to secure and satisfy our client’s claim. Due to non provision of the Bank guarantee, our client filed an application to sell M/T Leste…… so as to use the proceeds of sale as pre-judgment security for the satisfaction of our client’s claim in the suit No FHCIL/CS/245/2006.

A few days ago, the M/V Dalmar Majura collided and damaged extensively the said M/T Leste, our client’s pre-judgment security. Consequently, the owners of M/T Leste arrested the M/V Dalmar Majuro and detained her as a pre-judgment security for the satisfaction of the claim in the collision damage. On 1/11/07, our client caused to be filed (and which ought to have been registered in the Register of Caveat Against release), a caveat against the release from the arrest of the M/V Dalmar Majuro and served some on the Admiralty Marshal who acknowledged receipt and paid for service of the said caveat on the Plaintiffs’ and Defendants’ counsel…

On 12/11/07, to the chagrin of our client, our client learnt that the M/V Dalmar Majuro was released from arrest last Friday by the Court and Admiralty Marshall without reference to our client’s caveat against release and the provision of any security by the owners of M/T Dalmar Majuro for our client’s claim and in circumstances that our client considers questionable…”

Considering that by Order VI Rule 11 (3) any register established under Sub-rule (1) and (2) may be inspected by any Person without charge, the 3rd Respondent has no one to blame but herself for failing to take necessary steps to ensure registration and service of the caveat on the Appellants and the 1st and 2nd Respondents. Learned counsel for the Appellants is right in his submission in his Reply brief that a Party who files a process and pays the necessary service fees is not at liberty to go to bed after filing but is duty bound to follow up on service and the matter generally. Ajayi v. Omoregbe (1993) 6 NWLR (Pt. 301) 512 @ 534. There being no evidence in support of service on these parties, the 3rd Respondent was wrong to have expected the parties to serve him a copy of their application for release of the 1st Appellant when they had no notice of the caveat.

The fact however is that even if the caveat was registered and service duly effected on the Appellants, failure to serve on the 3rd Respondent notice of the application to release the 1st Appellant vessel will not create such special circumstance as to confer jurisdiction on the Court to grant a relief to the caveator without the caveator filing a claim before the Court. Order VI Rule 7 of AJPR provides that where a ship or other property is under arrest in a proceeding, a person may file in the Court a caveat against the release from arrest of the ship or property in lieu of obtaining a further arrest of that ship or property. The fact that the caveat is filed in lieu of obtaining further arrest of the vessel underscores the point that a claim is necessary before any relief can be granted the caveator by the Court because there has to be a claim before an application to arrest a vessel can be made. I think the point is clear to the 3rd Respondent hence her claim that the 1st Appellant having been released was no longer within jurisdiction for a claim against her to be made. It was argued that the 3rd Respondent had no option but to apply for the activation of the Bank guarantee being the only res within jurisdiction. Section 6 (6) (a) of the 1999 Constitution and other Orders of the AJPR cited by the 3rd Respondent to support her contention that her position was such that the Court had the inherent jurisdiction to entertain her application and grant the orders are with respect misconceived. As submitted by learned counsel to the Appellants in their Reply brief, the “res” in any suit is limited to the parties in the suit and cannot apply to a non party. The Appellants have provided the required Bank guarantee for the 1st and 2nd Respondents who sued them. That “res” is between the Appellants and the 1st and 2nd Respondents. The 3rd Respondent not being a Party to the suit cannot ask for any relief in respect of the “res”. The Court surely had no jurisdiction to make the orders in the suit. Issue one is resolved in favour of the Appellants.

ISSUE TWO:

”Whether the trial Judge was right in holding that the Caveator/3rd Respondent who failed to serve the Appellants the Caveat against the release of the vessel is entitled to be served by the same Appellants with their application for the release of the vessel or whether a caveator who fails to serve a process on a party is entitled to be served with Court processes in the same matter?” (Ground 3)

APPELLANTS’ ARGUMENTS

Learned counsel relying on several authorities submitted that service of Court process is a pre-condition to vesting jurisdiction on the Court where service is required. Counsel submitted that by Order VI Rule 7 of the Admiralty Jurisdiction Procedure Rules (AJPR) 1993 it is expedient and the duty of a Caveator who has filed in the Court a caveat against the release of an arrested vessel to serve a copy of such caveat on parties in the proceedings as this would bring to the notice of the said parties and the Court that there is a caveat in force against the release of the vessel. Counsel submitted that this also would give the parties the opportunity to know the nature of the Caveator’s process or to have on oddness for service on the Caveator. He urged the Court to resolve this issue against the Respondents.

3RD RESPONDENTS ARGUMENTS:

Learned counsel submitted that this issue can be resolved upon a proper interpretation of Order VI Rule 7 and Order IX Rule 2 (2) of the AJPR, 1993 which provisions allow a party to enter a caveat against the release of a ship and further provide that while that caveat is in force, a copy of the application for the release shall be served on the caveator. Counsel further submitted relying on several authorities that the word ‘shall’ in its ordinary meaning is a word of command which is normally given a compulsory meaning because it is intended to denote obligation when the word is used in a statute, and is not Permissive but mandatory. Counsel submitted that in the instant case, the use of the word ‘shall’ in Order IX Rule 2 (2) of the AJPR makes its provision mandatory, and not directory. Counsel submitted that having served the Admiralty Marshal who is in custody of the arrested 1st Appellant on behalf of the Court with the caveat, the service is deemed to be mode on the Court; and that having filed the caveat and paid for the service on the Appellants and 1st and 2nd Respondents, the Respondent has carried out its own responsibility. He called in aid the case of Famfa Oil Limited v. Attorney General Federation (2003) 18 NWLR (Pt.852) 453 @ 470 E –H.

Learned counsel submitted that the Appellants did not deny service of the caveat on the Admiralty Marshal/Deputy Registrar who is the registrar of Court within the meaning of Order VI Rules 1, 2 and 3 of the AJPR, 1993. Again since the Court was aware of the 3rd Respondent’s caveat in the eyes of the law, and still ordered for the release of the 1st Appellant in breach of Order IX Rule 2 (2) AJPR, 1993 to the detriment of the 3rd Respondent and benefit of the Appellant, the release of the 1st Appellant when the caveat was pending was wrong in law. Learned counsel urged the Court to hold that the 3rd Respondent who entered a caveat against the release of the 1st Appellant was entitled to be served with the application for the release of the 1st Appellant under the Admiralty Jurisdiction Procedure, Rules, 1993 and the failure to serve some breached its right to fair hearing guaranteed under Section 36(6) of the 1999 Constitution (as amended).

RESOLUTION OF ISSUE TWO:

This issue two was actually resolved under issue one. The fact is that there was no evidence that the Appellants and the 1st and 2nd Respondents were served with notice of the caveat filed by the 3rd Respondent. They were consequently unaware of the existence of the caveat and could not have served notice of their application for release of the 1st Appellant on the 3rd Respondent. Learned senior counsel for the Appellants is right in his submission that a Caveator who failed to serve the parties with copies of the Caveat cannot reasonably expect the same parties to serve him with any of their processes. Counsel is also right that the Appellants were under no liability or duty to serve a copy of their application for the release of their vessel on the Caveator since it was not served with a copy of the said caveat; neither could it have known that any caveat was indeed in force against the release of their vessel. Furthermore, a party who files a process in a matter has a duty in law to ensure service of same on all parties in the proceedings as failure to do so would deprive the Court of jurisdiction to grant any relief in the matter. The learned trial Judge at page 87 of the record observed that the applicant (3rd Respondent) filed a caveat against the release of the 1st Appellant and paid for service of same, and served the Deputy Chief Registrar/Admiralty Marshal a copy of the Caveat as though that was sufficient to assume service on the Appellants. Learned counsel for the Appellants is right that service on the Admiralty Marshal is not tantamount to service on the Appellants or the parties.

Most of the submissions of the 3rd Respondent on this issue are irrelevant. A proper interpretation of Order VI Rule 7 and Order IX Rule 2 (2) of the AJPR, 1993 as suggested by the 3rd Respondent is unhelpful to his case. If indeed the Appellants were served with the caveat, then they are duty bound to serve their application for the release of the 1st Appellant on the 3rd Respondent. That is when the interpretation of the word “shall” becomes relevant. There was no evidence of service on the Appellants. The 3rd Respondent more or less admitted they were not served in Exhibit B annexed to the affidavit in support of the motion on notice of the 3rd Respondent of 5/12/07 at page 35 of the Record. The exhibit earlier referred to, Mr. Mike Igbokwe SAN wrote to the chief Judge of Federal High Court complaining of the wrongful release of the 1st Appellant while the caveat was in force. In the letter the senior counsel admitted that although the Admiralty Marshall acknowledged receipt of the caveat for which they had paid the necessary fees for service of the caveat on the Appellants and the 1st and 2nd Respondents, the caveat was not registered in the Register of Caveat Against Release as required by Order VI Rule 11 Sub-Rule (2) of AJPR 1993.

If the caveat was not registered, the Appellants and the 1st and 2nd Respondents could not have been served. The argument of counsel that the Court ought to have been aware of the caveat is again misconceived. If a process is filed and is indeed in the Court file, unless the Court’s attention is called to the process, it is Presumptive to assume that the Court is aware of the process. Learned counsel for the 3rd Respondent had cited the case of Famfa Oil Limited V. Attorney General Federation (Supra) as authority for the point that the 3rd Respondent by paying the necessary fees for service had done all she needed to do on her part and cannot be punished for the shortcomings of the Court and its officials. The case of Famfa Oil Ltd was a mere procedural irregularity where on originating summons was signed by the Court Registrar instead of the Judge. It cannot be equated with non service of Court processes. The case is consequently completely inapposite. It is the duty of the 3rd Respondent to ensure not only that the caveat was duly registered but that the Appellants were also served. The fact remains that even though the Admiralty Marshall (Registrar) was served the caveat and fees paid for service on the Appellants, for reasons best known to him, the necessary steps were not taken to register the caveat and serve same on the Appellants. It may well be that the Registrar considered the 3rd Respondent not competent to file a caveat in the circumstances of the case, hence his failure to register same and have the caveat served on the Appellants. Not having been served the caveat, the Appellants were under no obligation to serve their application for release of the 1st Appellant vessel on the 3rd Respondent. There is consequently no special circumstance justifying the grant of the reliefs by the Court when the 3rd Respondent was not a party in the suit and had no claim against the Appellants. Issue 2 is resolved in favour of the Appellants.

ISSUE THREE:

Was the Caveator/3rd Respondent entitled to be a beneficiary of the security provided by the Appellants for the release of their vessel, the 1st Appellant herein, when they had no or made no claim known to Admiralty or at all against the Appellants? (Ground 4)

APPELLANTS’ ARGUMENTS:

Learned Senior counsel on this issue submitted relying on M/V “DA QING SHAN” V. P.A.C. Ltd (Supra) and HALBURY’S LAWS OF ENGLAND VOL. 1 FOURTH EDITION, that once the institution of on Action leads to the arrest of a ship, a proper release can be done only upon some form of undertaking or security on bail. Counsel submitted that the essence of the security which could be either in the form of a Bank Guarantee or by payment into Court of the sum regarding which the action has been commenced is to ensure that the judgment in the action will be satisfied if in favour of the Plaintiff. Counsel submitted that the security issued is usually by a Defendant against whom the Caveator has a claim. He submitted that the 3rd Respondent had no claim against the Appellants as its claim was against the Plaintiffs/1st and 2nd Respondents in an entirely different case Suit No.: FHC/L/CS/245/2006 to which the Appellants were not parties.

3RD RESPONDENT’S ARGUMENTS:

On issue 3, learned counsel contended that the 3rd Respondent was entitled to be a beneficiary of the security provided by the Appellants for the release of the 1st Appellant as it had a claim against the 1st Appellant and entered a caveat against the release of the Appellant from arrest/detention. Counsel submitted that the 3rd Respondent need not have an existing claim against the 1st Appellant before it can enter a caveat, provided that the 3rd Respondent has a claim to obtain a further arrest of the 1st Appellant. Counsel submitted that since the 1st Respondent was the security in Suit No. FHC/L/C5/245/2006 and the 1st Appellant had a collision with it, 3rd Respondent is entitled to sue the Appellants for the damage caused to the 1st Respondent which is its security for the satisfaction of its claim in that suit under Section 2 (2) (a), (3) and 5(2) of the Admiralty Jurisdiction Act, 1999 Cap 45 LFN, 2004. Counsel relied on Mobil Prod. (Nig.) Unltd. v. Ayeni (2010) 4 NWLR (Pt.1185) 586 at 592, & 605-606 G-B. Counsel further submitted that the 3rd Respondent was not allowed to exercise that right under Order VI Rule 7 of the AJPR, 1993 because by the release of the 1st Appellant without recourse to Order IX Rule 2(2) of the AJPR, 1993, the 3rd Respondent’s right to further arrest the 1st Appellant was illegally foreclosed.

Counsel referred to Order VI Rule 7 AJPR, 1993 and Order IX Rule 2 (2) of the AJPR, 1993. Counsel submitted that the application of the 3rd Respondent was not novel or recondite as it is covered under Sections 1, 2 (2 (a), (3), 3 and 5(2) of the Admiralty Jurisdiction Act, 1991 Cap.A5 LFN 2004; Order I Rule 3, Order XVI Rule 1 (a), Order VI Rule 7 and Order IX Rule 2(2) of the AJPR, 1993.

RESOLUTION OF ISSUE THREE:

Issue 3 is whether the 3rd Respondent was entitled to be a beneficiary of the security provided by the Appellants for the release of their vessel, 1st Appellant when she had no valid claim under the AJA against the Appellants. Put differently, whether the Appellants are under an obligation to provide security for the 3rd Respondent in suit no FHC/L/CS/245/2006. There is a difference between on application for issuance of a caveat and an application to provide security for a claim. The 3rd Respondent in his motion on notice prayed the Court for on order compelling the Appellants to provide security for its claims in Suit No. FHC/L/CS/245/2006 – Zenon Petroleum and Gas Limited V. M/T Leste and Owners of M/T Leste or in the alternative, on order setting aside or varying the order of the release of the 1st Appellant so that any security provided by the 1st and 2nd Appellants for the release of the 1st Appellant from arrest be also applied in securing the claims of the 3rd Respondent against the 1st and 2nd Respondents in suit no FHC/L/CS/245/2006. The only Claimants in the present proceedings are the 1st & 2nd Respondents who admittedly had on Admiralty action in rem against the Appellants and for which adequate security by way of a Bank Guarantee was provided by the Appellants. The learned trial Judge granted the prayer of the 3rd Respondent set out above.

I agree with learned counsel for the Appellants that the learned trial Judge was wrong as the application of the 3rd Respondent for the reliefs sought has no place in law as the request for security can only be made when the Applicant has a claim against the Respondent. I also agree with learned senior counsel that the claim of the 3rd Respondent as presently constituted is novel and unknown to the law of Admiralty. The 3rd Respondent had no claim against the Appellants. Their claim is against the 1st and 2nd Respondents in another unrelated suit. The 3rd Respondent must have a claim against the Appellants pending before the Court to empower the Court to make an order that security be provided by the Appellants. In fact, the question is not whether the 3rd Respondent has a claim or not. To put it bluntly the 3rd Respondent must take out a writ against the Appellants to render the Appellants liable to provide security for the 3rd Respondent’s claims. There is no provision in the AJA or its Rules that empower the 3rd Respondent to claim security from the Appellants in respect of another suit to which they are not parties.

Order VI Rule 7 of the AJPR, 1993 provides:

“Where a ship or other property is under arrest in a proceeding, a person nay file in the Court a caveat against the release from arrest of the ship or property in lieu of obtaining a further arrest of that ship or property.”

By the above provision where a person has a claim against a ship that is already under arrest in a proceeding, it can in lieu of obtaining a further arrest of the ship file a caveat against its release. The above provision to my mind implies that the caveator must have filed a claim against the ship in order to give him the right to file a caveat against the release of the ship.

Order VII Rule 1 Sub-Rule (1) of AJA provides that “a party to a proceeding commenced as an action in rem may by motion ex parte apply for an arrest warrant in respect of the ship or other property against which the proceeding was commenced.” This means that institution of an action in rem precedes application for arrest of the ship. A fotiorari a caveat against the release of a ship. I doubt if the Registrar would register the caveat if he is not satisfied that the caveator has a valid claim against the vessel.

The 3rd Respondent’s interpretation of the provisions of the AJA and its Rules are completely misconceived. No Section of the Act or its Rules empower the 3rd Respondent to seek security from the Appellants for its claims in another suit where the Appellants are not parties and when she has not filed a claim against the Appellants.

ISSUE FOUR:

Whether the lower Court was right when it ordered retrospectively that the security provided by the Appellants for the release of their vessel in the suit before him should also be applied in and towards securing the claim of the 3rd Respondent against the Plaintiffs/1st & 2nd Respondents in another suit. Suit No; FHC/L/C5/245/2006; Zenon Petroleum & Gas Ltd v. MT Leste & Owners of MT Lestse to which the Appellants were not parties? (Ground 5)

APPELLANTS’ ARGUMENTS

The contention of the Appellants here is that the lower Court was wrong when it ordered retrospectively that the security provided by the Appellants for the release of their vessel, should be applied in and towards securing the claim of the 3rd Respondent against the 1st & 2nd Respondents herein in another suit. Counsel submitted that the 3rd Respondent was not a party in the proceedings at the lower Court; neither did it have any claim before the Court. Counsel submitted that the matter was further complicated by the fact that the order was made long after the said security had been provided. He submitted that what the learned trial Judge did amounts to a review of the decision of the Court releasing the 1st Appellant from arrest upon the provision of the Bank Guarantee posted as security. He further submitted relying on NDIC v. S.B.N Plc (2003) 1 NWLR (PT 801) 311 that it is a well recognized principle of our law that a Court cannot review the decision of a Court of coordinate jurisdiction as doing so would amount to sitting on appeal over the decision.

3RD RESPONDENT’S ARGUMENTS:

Here, learned counsel contended that the order made by the lower Court was not retrospective in nature because, if the 1st Appellant was not suddenly released from arrest without recourse to Order IX Rule 2 (2) AJPR, 1993, the 3rd Respondent could have proceeded against the 1st Appellant’ Counsel further submitted that having released the 1st Appellant from arrest and the 1st Appellant having proceeded outside jurisdiction, the Court was entitled ex debitio justitiae to vary the release order so the security/Bank guarantee provided by the Appellants in the suit could also secure the claim of the 3rd Respondents against the 1st and 2nd Respondents in Suit No FHC/L/CS/245/2006. Counsel submitted that there need not be any claim by the 3rd Respondent against the 1st Appellant at the time the caveat was entered because that is not in accordance with Order VI Rule 7 of the AJPR, 1993; that what is important is that the 3rd Respondent must have a claim for the arrest/detention of the 1st Appellant in on action in rem.

Counsel submitted that the 3rd Respondent had such a claim at the time of entering the caveat having regard to the damage caused by the 1st Appellant to the 1st Respondent, which was the only security to satisfy the Respondent’s claim in Suit No FHC/L/CS/245/2006. Counsel argued that the 1st Appellant having collided with the 1st Respondent and caused her to further deteriorate in value to the extent that proceeds from her sale would not be sufficient to satisfy the 3rd Respondent’s claim in Suit No: FHC/L/CS/245/2006, the 3rd Respondent was entitled to proceed against the 1st Appellant in on action in rem. He submitted that the 3rd Respondent was not allowed to bring the claim in an action in rem because the 1st Appellant was released without recourse to Order IX Rule 2(2) of the AJPR, 1993. Counsel further submitted that the lower court did not review its earlier decision but merely allowed the 3rd Respondent in the interest of justice to exercise its right to proceed against the Bank guarantee, since the Appellant had been released and gone out of jurisdiction. Counsel submitted that the Court was right in ordering that the Bank guarantee be applied to satisfy the claim of the 3rd Respondent in suit No FH /L/ S/245/2006. He submitted that the procedure is not recondite or novel to admiralty law and urged us to so hold.

RESOLUTION OF ISSUE 4:

From the arguments of learned counsel to the 3rd Respondent, it is quite obvious that he is laboring under a serious misconception of the law governing the issues under discourse. As rightly submitted by learned senior counsel for the Appellants the order being appealed against was made after the Appellants’ security in favour of the 1st and 2nd Respondents had been provided by First Bank. It is at page 27 of the Record. It reads in part:

“…. In consideration of the Plaintiffs consenting to the release of the MV DELMAR or not ‘re-arresting or otherwise detaining the MV DELMAR or any other vessel or property in the same or associated ownership or management possession or control, in this suit, we FIRST BANK OF NIGERIA PLC whose registered office is at 35 Marina, Lagos (hereinafter called “the Bank”) do hereby guarantee that it shall pay to the Plaintiffs whatever maybe adjudged by the Federal High Court of Nigeria or any other higher Court to which appeals may lie, if any, to be due to the Plaintiffs from the owners of the MV DELMAR or by agreement in writing between the parties in connection with the Plaintiff’s claim for damages arising from the matters which are the subject of the said action, always provided that the total Banks liability hereunder shall not exceed the sum of US$7,500,000 (united States Dollars seven Million, Five hundred Thousand, inclusive of interest and costs. This Guarantee shall be construed according to and governed by the Laws of the Federal Republic of Nigeria. The guarantee is personal to TRILIUM NAVIGATION S.A. PANAMA and is not assignable- The First Bank guarantee is dated the 6th day of November 2007. The lower Court’s Ruling being appealed against was delivered on the 2nd day of February, 2009. The order reads:

“.,.The alternative relief no 2 deserves to succeed and without much ado it is granted as prayed.

Ex-abundanti Cautela an order is hereby made varying the order of release of the 1st defendant so that any security provided by the defendants for the release of the 1st defendant from judicial arrest by the plaintiffs herein, be also applied in securing the claims of the applicant against the plaintiffs in the pending suit No. FHC/L/C5/245/2005 between Zenon Petroleum & Gas Ltd Vs M/T Leste & Owners of the defendants.”The implication of the above order is that the First Bank Guarantee should also cover the 3rd Respondent’s claim in suit No FHC/L/CS/245/2006 between Zenon Petroleum & Gas Ltd Vs M/T Leste & Owners of the defendants.”

The implication of the above order is that the first Bank Guarantee should also cover the 3rd Respondent’s claim in suit No FHC/L/CS/245/2006 btw Zenon Petroleum & Gas ltd VS M/T Leste & Owners of the defendants

From the wordings of the guarantee as set out above, it is practically impossible. The Court order is retrospective and incapable of execution without the Appellants going back to First Bank to apply for a variation of the terms of the guarantee. How then can the Appellants be expected to provide security when the 3rd Respondent is not a party to the proceedings and had no claims pending before the Court. None of the sections of AJA and its Rules nor any of the cases cited by the 3rd Respondent support their arguments. It is unfortunate that the 1st Appellant was released without the 3rd Respondent being served the application for her release. The application was not served because the Appellants had no knowledge of the caveat filed by the 3rd Respondent. Since security had been provided for the 1st and 2nd Respondents’ case and the 1st and 2nd Respondents are the defendants in suit No FHC/L/CS/245/2006 filed by the 3rd Respondent, the 3rd Respondent should have taken action within suit No FHC/L/CS/245/2006 to benefit from the security provided by First Bank in favour of the 1st and 2nd Respondents. The lower Court erred when it ordered retrospectively that the security provided by the Appellants for the release of their vessel in the suit before his lordship should also be applied in securing the claim of the 3rd Respondent against the 1st & 2nd Respondents in another suit in which the Appellants were not parties. Being retrospective the order is incapable of execution.

I agree with learned senior counsel for the Appellant that the learned trial judge cannot review the decision of a Court of coordinate jurisdiction as doing so would amount to sitting on appeal over the decision. In addition to the authority cited by learned counsel for the Appellants, NDIC v. S.B.N PLC (2003) 1 NWLR (PT 801) 311 see also Federal Republic of Nigeria v. Vincent Ogbulafor 4 Ors (2012) LPELR-7947(CA) where it was held that once a Court has given a decision on an issue or matter placed before it for adjudication it becomes functus officio and it is precluded from reviewing or varying the form of judgment or order apart from the correction of clerical mistakes or occidental slips. Nigerian Army v. Iyela (2N8t 16 NWLP (Pt. 1118) 115. By granting the order here, the learned trial judge reviewed the order of Oloyiwola J. of 8/11/07 granting the 1st and 2nd Respondents security for release of the 1st Appellants vessel and thereby sat on appeal over the decision of a Court of co-ordinate jurisdiction. The principle of the Court being functus officio in such instances is trite. Issue 4 is resolved in favour of the Appellants.

Having resolved all the issues in this appeal in favour of the Appellants, I hold that the appeal has merit. It is hereby allowed. The Ruling of Akanbi J in Suit No.FHC/L/CS/974/07 delivered on the 2nd day of February 2009 is hereby set aside. In its place the motion on notice doted 5/12/07 is dismissed with costs assessed at N50,000.00 in favour of the Appellants.

OBASEKI-ADEJUMO, JCA

I have had the benefit of reading in draft the judgment just delivered by my learned brother, IYIZOBA, JCA.

My learned brother has adequately dealt with the facts and issues raised in this appeal and I agree entirely with his reasoning and conclusion that this appeal is meritorious and I accordingly allow this appeal. I also abide by the consequential order(s) made in the leading judgment.

TUKUR, JCA

I read in draft before today the lucid and elaborate lead judgment just delivered by my learned brother Chinwe Eugenia Iyizoba JCA and I adopt the judgment as mine with nothing useful to add.