Assurance Foreningen Skuld (Gjensidig) V. Mv Sealion (Ex “antibes”) & Anor (2005)
LawGlobal-Hub Lead Judgment Report
M. ABBA AJI, J.C.A.
This appeal is against the Ruling of Hon. Justice I.N. Auta of the Federal High Court, Benin, delivered on the 22nd October, 2002.
The Appellant who was the plaintiff before the trial court instituted an Admiralty action in rem against the Respondents, the Owners/Managers of Sealion (“ex-Antibes”) the 1st Respondent herein. Simultaneously with the issuance of the Writ in Rem, the Appellant filed swap an exparte application praying for the arrest of the 1st Respondent pending the provision of a bank guarantee to secure the Appellant’s claims against the Respondents.
The Lower Court heard the ex-parte application and in its ruling delivered on the 22nd October, 2002, granted the order sought by the Appellant and went further to make ancillary order which required the appellant to deposit the sum of N100,000.00k (One hundred thousand naira) weekly, with the Admiralty Marshal for servicing the arrested vessel.
The Appellant being dissatisfied with the said Ruling appealed to this court upon a lone ground of appeal. The ground of appeal with its particulars is as follows:-
GROUNDS OF APPEAL
“The Learned trial Judge erred in law, when he ordered that the plaintiff deposit the sum of N100,000.00 weekly with the Admiralty Marshal for servicing the arrested vessel.
PARTICUALRS OF ERROR
(i) THE Admiralty Marshal is only entitled under Order 8 of the Admiralty Jurisdiction Procedure Rules 1993 to accept payment of an amount of money not exceeding N5,000, as deposit towards discharging his liability and to make one or more demands for interim payments on account of his fees and expenses.
(ii) Payment of the sum of N100,000 or any amount weekly is not provided for under the Admiralty Jurisdiction Act 1991, or the Admiralty Jurisdiction Procedure Rules 1993 and is arbitrary in law, unjust and oppressive.”
In compliance with the Rules of this Court, briefs of argument were filed and exchanged. In the Appellant’s brief dated 21st September, 2004, settled by Babajide Koku, Esq and filed on the 27th September, 2004, learned Counsel formulated an issue for detemination, that is,
(1) “Whether the Order of the lower court dated the 22nd October, 2002, directing the Appellant to deposit the sum of N100,000.00k weekly with the Admiralty Marshal to service the arrested vessel was valid in law.”
In the Respondent brief dated 17th December, 2004, settled by Nnamonso Ekanem Esq, and filed on the 31st of January, 2005, learned Counsel also identified a lone issue for determination. This is –
“(i) whether under Order 8 of the Admiralty Jurisdiction Rules 1993, the Lower Court has a discretion to order payment of the sum of more than N5,000.00k as expenses to maintain a vessel under arrest.”
At the hearing of the appeal, learned counsel for the Appellant Babajide Koku Esq, adopted and relied on his brief of argument filed on the 27th February, 2004 and the reply brief dated 15th January, 2005 and filed on the 9th February, 2005 and urged us to allow the appeal. Learned Counsel for the Respondent Nnamonso Ekanem Esq adopted and relied on his brief and asked us to dismiss the appeal.
The issues as formulated by the parties are virtually the same. For determining this appeal, I will adopt the issue as formulated by the Respondents that is:-
“Whether under Order 8 of the Admiralty Jurisdiction Rules, 1993, the Lower Court has discretion to order payment of the sum of more than N5,000.00k as expenses to maintain a vessel under arrest?”
It was the submission of Babajide Koku Esq, learned Appellant’s Counsel that the order of the lower court directing the Appellant to pay the sum of N100,000.00k weekly to the Admiralty Marshal was arbitrary and oppressive in that it was made in total disregard of the existing law on the liability of an arresting party for Admiralty Marshal expenses. Learned Appellant Counsel referred to Order 8 Rules 1-3 of the Admiralty Jurisdiction Procedure Rules, 1993 particularly Order 8 Rule 3(2) (a) & (b) and submitted that the provision of the law required an arresting party to make a deposit not exceeding the sum of N5,000.00k to the Admiralty Marshal on demand towards discharging the liability of the Admiralty Marshal if any. It was further submitted that further deposits if required can only be furnished at the behest of the Admiralty Marshal who is the custodian of arrested vessels. It was contended that in the absence of any rule of law stating the contrary, the Lower Court had no business directing the Appellant to furnish the sum of N100,000.00k weekly to the Admiralty Marshal in disregard of the clear provisions of Order 8 of the Admiralty Jurisdiction Procedure Rules 1993. Learned Counsel cited and relied on the following cases, OGEDENGBE VS. I.C.P.C (2002) 12 NWLR (PT. 780) 59 at 63 and SO MAISONKA CO (NIG) LTD VS ADZEGE (2001) 9 NWLR (PT. 718) 312 at 324 on the respect to be accorded an existing Law until pronounced invalid by the court and the need for obedience to the Rules of Court. It was therefore submitted that the Order of the Lower Court was arbitrary and oppressive in the circumstances particularly, where no request for funds had been made by the Admiralty Marshal.
Mr. Ekanem Esq, learned Counsel for the Respondents submitted that it is not in dispute that the vessel Sealion sued as the 1st Respondent was arrested pursuant to an application by the Appellant. Mr. Ekanem Esq submitted that under Order 8 Rule 1 of the Admiralty Jurisdiction Rules 1993, an application to arrest constitutes an undertaking by the arrestor to pay to the Admiralty Marshal his fees and expenses in relation to the arrest. He further submitted that by Order 3 Rule 1, the fees and expenses of the Admiralty Marshal shall be paid by the arresting party. On whether the lower court has no discretion to order payment of any sum in excess of N5,000.00k, Ekanem Esq referred to Order 8 Rule 3(2) (a) of the Admiralty Jurisdiction Rules and submitted that this issue will turn on the interpretation of the word “may” in the order. It is the view of learned Counsel that the word ‘may’ is that, it is not mandatory and that the lower court can exercise its discretion in awarding any amount in excess of N5,000.00k. To buttress his view that the word ‘may’ is merely directory and not compulsory, learned Counsel referred to the case of EMOKPAE VS UNIVERSITY OF BENIN (2002) 17 NWLR (PT. 795) 139 at 143. He submitted that the word ‘may’ confers a discretionary power. Learned Counsel further submitted that the whole essence of the Order 8 of the Admiralty Jurisdiction Rules is to ensure that where an application for arrest is made, any expenses and fees incurred by the Admiralty Marshal is paid by the Arrestor and that Rule 3(2) (b) of the Rules gives the Admiralty Marshal power to make one or more demands for interim payments on account of paid fees and expenses. It is therefore contended by the learned counsel that the court can validly exercise its discretion by ordering a deposit of a sum in excess of N5,000.00k, and in this case, N100,000.00 weekly as deposit for the Admiralty Marshal’s expenses.
In response to the counsel’s submission, Babajide Koku Esq, for the Appellant submitted that the thrust of the Appellant’s appeal is that the liability of an arrestor for expenses of the Admiralty Marshal is predicated on a demand of a deposit by the Admiralty Marshal towards discharging the liability and where further payments are required, the demand for such payments must emanate from the Admiralty Marshal. He therefore submitted that the order of the Lower court directing the Appellant to pay the sum of N100,000.00 weekly was unsolicited and made without jurisdiction as no such request was pleaded before the court at the time of moving the application for the arrest of the 2nd Respondent’s vessel. It was also submitted that the order of court requiring the Appellant to furnish the sum of N100,000.00 weekly was oppressive as such order was capable of causing untold hardship to the Appellant, who in its bid to recover its outstanding debts is being subjected to punitive charges for as long as the arrest order subsist.
The issue in this appeal will turn on the construction of the provisions of Order 8 of the Admiralty Jurisdiction Rules 1993, particularly Rule 3 (1) & (2) of the Rules, It provides:-
“3(1) The fees and expenses of the Admiralty Marshal shall be paid by the arresting party.
(2) where a person is liable to pay fees or Expenses, the Admiralty Marshal may-
(a) accept an amount of money not exceeding N5,000.00 towards discharging the liability.
(b) make one or more demands for interim payments on account of those fees and expenses.”
It is not in dispute that the fees and expenses of the Admiralty Marshal shall be paid by the arresting party that is the Appellant as in the instant case. What is in issue here is whether the lower court can order the party liable to pay fees or expenses beyond the sum of N5,000.00 as prescribed by the Admiralty Jurisdiction Rules 1993, towards discharging his liability.
The sum total of the Appellant’s counsel argument was that the order made by the lower court directing the appellant to deposit N1,000,000.00 weekly to Admiralty Marshal towards servicing the arrested vessel is arbitrary and oppressive and not made in consonance with existing law on the liability of an arresting party for the Admiralty Marshal expenses, citing the following cases in support, OGEDEGBE VS. I.C.P.C (SUPRA) and SO MAI SONKA CO. NIGERIA LTD VS ADZEGE (SUPRA).
On the other hand, the Respondent’s contention was that the issue will turn on the interpretation of the word ‘may’ under Rule 3(2) of Order 8 of the Admiralty Jurisdiction Rules which learned Counsel submitted is not mandatory and that the lower court can exercise its discretion in awarding any amount in excess of N5,000.00k citing EMOKPAE VS UNIVERSITY OF BENIN (SUPRA).
The question that rear its head from the facts and circumstances of this case is whether the payment of N100,000.00k weekly ordered by the lower court is justifiable and/or is a judicious exercise of discretion in view of the provisions of order 8 Rule 3(2) (a) of the Admiralty Jurisdiction Rules that limit the amount of payment to N5,000.00 only.
The word ‘may’ as appeared in sub rule (2)(a) of Rule 3 of Order 8 of the Admiralty jurisdiction Rules according to the learned counsel for the Respondent, gives the lower court discretion to grant any amount in excess of N5,000.00 as the word ‘may’ is directory and not mandatory. In the construction of statutes, the word ‘may’ is termed as permissive or discretionary. However, in so many other cases, the courts have held ‘may’ to be synonymous with ‘shall’ or ‘must’ thus giving the force of a command. Whether this is so or not will depend on the interpretation to be given to the word in the con in which it is used. In other words, where ‘may’ appears in a statute, the con in which the word appears must be looked into as this is the controlling factor whether it is mandatory or discretionary. See AROWOLO VS. AKAPO (2003) 8 NWLR (PT. 823) 451 and KAMBA VS. BAWA (2005) 4 NWLR (Pt. 914) 43.
In the instant case, the lower court did not seem to construe the word ‘may’ in the Rules as being the basis upon which its discretion it derived from when it made the order of a deposit of N100,000.00k weekly to the Admiralty Marshal for the servicing of the arrested vessel. Assuming the word may is construed to mean discretionary and not mandatory, sub rule (2) (a) does not confer on the lower court the discretion to order payment of sum exceeding N5,000.00 in view of the preceding word, “not exceeding N5,000.00”. Infact this is what the sub rule (2) (a) provides:- “Where a person is liable to pay fees or expenses, the Admiralty Marshal may-
(a) accept an amount of money not exceeding N5,000.00 as a deposit towards discharging the Liability; ”
The word “not exceeding” is a term of limitation and in the con in which it is used, it simply means that the Admiralty Marshal may accept or the court may order payments of any amount, but not exceeding N5,000.00k. Here, the discretion is limited.
The next question that flow from this is, whether the payment of N100,000.00k weekly ordered by the lower court is a proper exercise of judicial discretion. The Supreme Court in the case of UNIVERSITY OF LAGOS & ORS VS. OLANIYAN & ORS (1985) 1 NWLR (PT. 1) 156, held that a proper exercise of judicial discretion must be done according to law and not humour, it is not to be arbitrary, vague and fanciful, but legal and regular. It is thus a well established principle of law that all judicial discretion must be exercised according to common sense and according to justice, and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of an appeal court to have it reviewed. See BANKOLE VS. DADA (2003) 11 NWLR (PT. 830) 174 and OLATUNJI VS. F.R.N (2003) 3 NWLR (PT.807) 406.However, an appellate court would not reverse a discretionary order of a trial court merely because it would have exercised the discretion differently. But if on other grounds, the order will result to injustice being done or if the discretion was wrongly exercised or that due weight was not given to relevant considerations, the order may be reversed.In the instant case, the payment of N100,000.00k ordered by the trial court in total disregard to the provisions of the Admiralty Jurisdiction Rules is not a judicious exercise of judicial discretion. It is arbitrary and oppressive. The underlying principle the court must bear in mind in the exercise of its discretion is to have full regard to all the circumstances of the case, including the provisions of the law and the court must always be fair and just in making any order necessary in the circumstance.
In the instant case, the learned trial Judge failed to accord any consideration to the provisions of the Admiralty Jurisdiction Rules and proceeded to exercise his perceived discretion. An existing law must be respected and treated as such unless it is pronounced invalid by the court. The lower court has no business to disregard the provisions of Order 8 Rule 3 (2) (a) of the Admiralty Jurisdiction Rules. There is always the need for obedience to the Rules of Court and the courts are duty bound to follow the due process of law. See OGEDENGBE VS. I.C.P.C. (SUPRA) and SO MAI SONKA CO. (NIGERIA) LTD VS. ADZEGE (SUPRA)It is my humble view that the payment of N100,000.00k weekly ordered by the Lower Court was arbitrary and oppressive and ought to be reversed. I agree with Appellant’s Counsel that the order is capable of causing untold hardship to the Appellant, who in its bid to recover its outstanding debts is being subjected to punitive charges for as long as the arrest order subsists.
Based on the foregoing, it is my view that the appeal has merit and ought to be allowed and it is hereby allowed by me. The order of N100,000.00k weekly deposit to the Admiralty Marshal for the servicing of the arrested vessel by the Lower Court is hereby set aside. In its place, the Appellant is hereby ordered to pay N5,000.00 weekly to the Admiralty Marshal for servicing the arrested vessel. This is without prejudice to the provisions of Order 8 Rule 3(2)(b) of the Admiralty Jurisdiction Rules 1993. The Appellant is entitled to costs which is assessed and fixed at N5,000.00 only.
Other Citations: (2005)LCN/1829(CA)
