Captain Shulgin Oleksandr Vs Lonestar Drilling Company Ltd (2015)

LAWGLOBAL HUB Lead Judgment Report

KUPIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on 16/9/2002 setting aside the ruling of the Federal High Court, Lagos (the trial court) delivered on 19/6/1998 which held that the respondents herein had breached the fundamental rights of the present appellants and granted various consequential reliefs accordingly. The appellants, Ukranian nationals, were crew members of a vessel named Dubai Valour, which was arrested and placed under the custody of the Admiral Marshal pursuant to an arrest order made on 5/8/1997 by the Federal High Court, Benin City in suit no. FHC/B/228/92 filed by the 1st respondent, as plaintiff, against five defendants. The vessel M/V Dubai Valour was the 4th defendant. The present appellants were not parties to that suit. However it was their contention that they were unlawfully detained on the vessel without food, water, bunkers and medical supplies and had not been allowed to disembark and leave Nigeria because their international passports and seamen’s books had been seized. They therefore instituted proceedings before the Federal High Court in Lagos in suit No. FHC/L/CS/81/98 against (1) The Attorney General of the Federation, (2) Comptroller General of Immigrations, (3) Minister of Internal Affairs, (4) Lonestar Drilling Co. Ltd. (1st respondent herein), and (5) Chief H.L.S. Idisi (2nd respondent herein). By a motion on notice dated 27/1/1998 the appellants sought the following reliefs: (a) An order enforcing the Appellants’ fundamental human rights to personal freedom and liberty pending the hearing and determination of the substantive suit to be heard within such time as may be directed by this honourable Court, and (b) An order directing the Defendants/Respondents either by themselves, their servants, agents, and/or privies and/or anyone acting for or purporting to act on their behalf to return forthwith to the Plaintiffs/Applicants all their International Passports and/or Seamen’s Pass Books and/or to do everything necessary to facilitate their disembarkation from the Vessel, “Dubai Valour” and travel out of this country to their PAGE| 3 countries without let or hindrance and US$5,000,000 (Five Million US Dollars) damages for wrongful and/or illegal detention of the Applicants, and for such order or further orders as to this Honourable Court may deem fit to make in the circumstances. (c) An order allowing the Plaintiffs and their vessel to be supplied with bunkers, fresh water, provision and medicare without hindrance by the Defendants or any one claiming for or in trust for them. After hearing arguments on the application, the learned trial Judge, in a considered ruling delivered on 19/6/98, held that the appellants’ fundamental rights had been breached and granted the reliefs sought. He however declined to make an order for the award of compensation in their favour. The respondents were dissatisfied with the ruling and appealed to the lower court. The appellants were also dissatisfied with the refusal of the court to award compensation in their favour and filed a cross appeal. In a considered judgment delivered on 16/9/2002 the lower court allowed the appeal and dismissed the cross appeal. The appellants are dissatisfied with the decision and have appealed to this court vide their notice of appeal dated 26/11/2002 containing 9 grounds of appeal. The parties before us duly filed and exchanged their respective briefs of argument. The appellants’ brief, settled by FEMI ATOYEBI, SAN, was deemed properly filed on 16/1/2008. The respondents’ brief settled by CHIEF T.J. ONOMIGBO OKPOKO, SAN, was deemed filed oh 20/2/2013. At the hearing of the appeal on 27/1/2015, MISS N.I. NTIAIDEM who represented the respondents drew the court’s attention to the preliminary objection raised and argued at pages 1 – 8 of the respondents’ brief and urged us to sustain the objection. AYO OLORUNFEMI ESQ, who represented the appellants adopted and relied on the appellants’ brief He urged us to overrule the preliminary objection and to allow the appeal. MISS NTIAIDEM urged us to dismiss the appeal. The appellants and the respondents each distilled five issues for determination. The appellants’ issues are as follows: 1. Whether the Court of Appeal was right to have exonerated the respondents herein PAGE| 4 (4th & 5th respondents at the trial court) from responsibility for breach of the appellants’ fundamental rights and the illegal and/or unlawful detention of the appellants in their vessel, “Dubai Valour” for over twenty (20) months? (Grounds 1, 4, 6 & 7). 2. Is the decision by the Court of Appeal that the appellants were wrong to have initiated the human rights action in Lagos not an obiter dictum? If no, whether the appellant’s initiation of the present action in Lagos could be said to be wrongful in law? (Ground 3). 3. Does the judgment of the Court of Appeal in England on the same issue namely, whether the respondents were guilty or not of false/wrongful imprisonment and/or detention of the appellants’ hereto not constitute Yes judicata7 or issue estoppels as between the parties hereto and/or their privies in the circumstances of the case? (Grounds 5 & 9). 4. Was it right for the Court of Appeal to have relied on what it called “fresh evidence” produced before the English Court alone, without more, to conclude that the respondents did not deny the appellants supply of food, bunkers and provisions? (Ground 8). 5. Was the Court of Appeal right in failing and/or refusing to award any monetary compensation in favour of the appellants and against the respondents herein for the illegal and/or unlawful breach of the appellants’ fundamental rights? (Ground 2). The issues formulated by the respondents are: 1. Whether the learned Justices were wrong in holding that respondents were not responsible for breach of appellants’ alleged rights? 2. Whether the obiter or passing observations or remarks of the learned Justices which did not form the basis of the decision of the Court constitute a valid basis for an appeal and if so, did the observations cause a miscarriage of justice in this case? 3. Whether appellants were entitled to an award of damages against respondents having regard to the finding of the learned trial Judge and the decision of the learned Justices? PAGE| 5 4. Whether the learned Justices were wrong in law in not receiving the English decision as a binding judicial authority – establishing the defence of res judicata and or as creating issue estoppel? 5. Whether the learned Justices were wrong in the use they made of the said evidence? I am of the view that the issues formulated by the appellants will adequately address the issues in controversy in this appeal. The appeal will therefore be determined on the said issues. However before delving into the merit of the appeal it is necessary to determine the preliminary objection raised and argued at pages 3 – 8 of the respondents’ brief. Preliminary Objection The first ground of objection is that grounds 3 and 4 of the notice of appeal are complaints in respect of obiter dicta of the learned Justices of the lower court, which did not form the basis of the judgment appealed against. Learned Senior Counsel, Chief Okpoko, SAN, submitted that the right of appeal conferred by Section 233 (2) and (3) of the 1999 Constitution (as amended) is in respect of a ‘decision’ of a court and not in respect of passing remarks or observations made by the court. He relied on: Obatoyinbo Vs Oshatoba (19961 5 NWLR (Pt.450) 531 @ 549 F: Oni Vs Favemi (20081 8 NWLR (Pt.10891 400 @ 427 H – E: Akibu Vs Oduntan (20001 13 NWLR (Pt.6851 446 & 462 – 463. Secondly, it is contended that Grounds 6, 7, 8 and 9, which complain of misdirection on the facts, are incompetent for failure to satisfy the mandatory requirement of Order 8 Rule 2 (2) of the Supreme Court Rules on the ground that the particulars of misdirection or error given do not relate to the complaints in the said grounds. He referred to: Honika Sawmill (Nig.) Ltd. Vs Hoff (1994) 2 NWLR (Pt.326) 252 @ 262 – 263: Kachia Vs Yazid (2007) 17 NWLR (Pt.742) 431 @ 460: Abdullahi Yelwa Vs Garba Umar (2005) ALL FWLR fPt.2911 1670 @ 1694. The appellants did not respond to the objections. PAGE| 6 As rightly submitted by learned Senior counsel for the respondents, the right conferred on a litigant pursuant to Section 233 (2) of the 1999 Constitution is the right to appeal against decisions of the Court of Appeal in respect of the matters enumerated therein. Section 318 (1) of the Constitution provides: ” ‘decision’ means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.” I had cause, in a recent decision of this court in Ominiyi Vs Alabi SC.41/2004 delivered on 27/2/2015, to explain the distinction between ” obiter dictum” and “ratio decidendi’ as follows: “The law is settled that issues for determination must be distilled from the grounds of appeal, which in turn must be predicated upon the ratio decidendi of the decision of the court appealed against See: Honika Sawmill (Nig.) Ltd. Vs Hoff (1994) 2 NWLR (Pt.326) 252; Briggs Vs CLO.R.S.N. (2005) 12 NWLR (Pt.938) 59 at 90 F-H; Dalek Nig. Ltd. Vs OMPADEC (2007) ALL FWLR (Pt.364) 204 at 226 F-H. The ratio decidendi of a case is the principle or rule of law upon which a courts decision is founded. See: Blacks Law Dictionary (8th edition); also: A.I.C Ltd. Vs NNPC (2005) 11 NWLR (Pt.937) 563: Ajibola Vs Ajadi (2004) 14 NWLR fPt.892) 14. On the other hand obiter dicta or obiter dictum means, ‘something said in passing”. It is a judicial comment made while delivering a judicial opinion, but one that does not embody the decision of the court. See: Black’s Law Dictionary (supra) and A.I.C. Ltd. Vs NNPC (supra); Aklbu Vs Oduntan (2000) 13 NWLR (Pt.685) 406; Odessa Vs F.R.N. (No. 2) (2005) 10 NWLR (Pt.934) 528 at 555 B.” Grounds 3 and 4 of the grounds of appeal, shorn of their particulars read thus: Ground 3: The learned Justices of the Court of Appeal erred in law when they held that the initiation of the Human Rights action in Lagos was wrongful. Ground 4: The learned Justices of the Court of Appeal erred in law when they held that “If there was any detention of the crew members (here the Appellants) it was by the force PAGE| 7 of order of the Court of Law” and not by the Respondents. I have carefully examined the judgment of the court below, particularly at page 817 of Volume II of the record. One of the issues in contention before the court was whether the decision of the Court of Appeal of England in Gulf Azoy Shipping Co. Ltd. & Anor. Vs Idisi & Ors. (2002) 1 Lloyd’s Reports 727, which held that the present respondents were responsible for the detention of the crew aboard M/V Dubai Valour, constitutes res judicata as between the parties to this appeal. The court held that the plea was unsustainable. The court, per Aderemi JCA (as he then was) held at pages 816 – 817 of Vol. II of the record: “As I have pointed out supra, if there was any detention of the crew members – the cross-appellant: it was by force of order of a court of law. …No doubt one of the parties to a case must be aggrieved by the judgment The only course open to him is to appeal against the ruling or judgment of a court that aggrieved him… If the cross-appellants were aggrieved by the ruling of the court below refusing their application for evacuation, the best they could do was to appeal against that order. It was wrong of them to have initiated the suit which culminated in the ruling of the court below delivered on IS?1 June 1998 – the subject matter of this appeal.” It is clear from the portion of the judgment reproduced above that the remark regarding the form of action instituted by the cross-appellants at the trial court that led to the appeal was a passing remark that had no bearing on the issues before the court or the final decision reached therein. The remark amounted to obiter dictum, which could not form the basis of a ground of appeal. Ground 3 of the notice of appeal and issue 2 formulated thereon are therefore incompetent and accordingly struck out. On the other hand, the view of the court that the appellants were detained by “the force of order of a court of law”, which formed the basis of the complaint in ground 4 was not a mere passing remark, as the final decision of the court was based partly on its belief that the appellants’ detention was based on a court order. Ground 4 and issue 1 formulated from Grounds 1, 4, 6 and 7 are therefore competent. PAGE| 8 With regard to Grounds 6, 7, 8 and 9 of the grounds of appeal, the law is settled that particulars of error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. They are the specification of the error or misdirection complained of in order to demonstrate how the complaint will be canvassed in an attempt to reveal the flaw in a particular portion of the judgment. Particulars must not be independent of the ground of appeal but ancillary to it. See: Globe Fishing Ind. Ltd. Vs Coker (19901 7 NWLR (Pt.1621 265; Osasona Vs Aiavi (20041 14 NWLR (Pt.8941 527 @ 545 E – H: Diamond Bank Ltd. Vs P.I.C. Co. Ltd. f20091 18 NWLR (Pt.11721 67. I have carefully examined the particulars of Grounds 6,7, 8 & 9. There is no doubt that the particulars are prolix, unwieldy and argumentative. The particulars of a ground of appeal are expected to highlight briefly the misdirection or error in law complained of. The merit of the appeal should not be argued under the guise of supplying particulars. This is because an appeal is argued not on the grounds of appeal but on the basis of issues formulated therefrom, which may encompass more than one ground of appeal. It was held in F.H.A. Vs Kalejaiye (20101 19 NWLR (Pt.1226) 147 that in reading a ground of appeal and its particulars, the adverse party must be left in no doubt as to what the complaint of the appellant is. In the words of Ayoola, JSC in Military Administrator of Benue State Vs Udeaede (2001) 17 NWLR (Pt.7411 194 @ 212 – 213 G – H: “where parties to an appeal and the court are not misled by the contents of a ground of appeal, complaint about its form becomes a technicality which does not occasion a miscarriage of justice and is inconsequential.” See also: Ogboru Vs Uduaghan (2012) 11 NWLR (Pt.1311) 357 @ 380 B – D. Thus, notwithstanding the inelegant drafting of the particulars of Grounds 6, 7, 8 & 9, the respondents and indeed the court are not in any doubt as to what the appellants’ complaints are. I hold that the particulars of Grounds 6, 7, 8 & 9 are in substantia! compliance with the requirement of the law and the said grounds are therefore competent. PAGE| 9 In conclusion, the preliminary objection is sustained in respect of Ground 3 and issue 2 formulated thereon only. The said ground and issue are accordingly struck out. The objection fails in respect of Grounds 6, 7, 8 and 9. The said grounds are competent. It follows that issues 1, 3, 4 and 5 are competent and shall be considered on their merits. They are hereby renumbered as Issues 1, 2, 3 and 4. ISSUE 1 Whether the Court of Appeal was right to have exonerated the respondents herein (4h & $h respondents at the trial court) from responsibility for breach of the appellants’ fundamental rights and the illegal and/or unlawful detention of the appellants in their vessel, “Dubai Valour” for over twenty (20) months? In arguing this issue, learned Senior Counsel for the appellants, FEMI ATOYEBI, SAN, submitted that the lower court, in coming to the conclusion that the ruling of the learned trial Judge did not reflect a thorough appraisal of the affidavit evidence before the court, overlooked certain letters, e-mails and fax messages attached as exhibits to the affidavits before the court, which he contends clearly point to the culpability of the respondents in the breach of the appellants’ fundamental rights. He submitted that the findings made by the learned trial Judge flowed directly from the evidence and materials placed before the court. He also submitted that the facts found and relied upon by the trial court were sufficiently proved by the appellants and uncontroverted by the respondents. He maintained that there was abundant evidence to prove that the respondents did everything in their power to frustrate the evacuation or disembarkation of the crew from the vessel and access thereto by the owners. In paragraph 3.13 of his brief, Learned Senior Counsel set out specific aspects of the evidence before the courts below, which in his view, demonstrated clearly the infringement of the appellants’ fundamental rights by the respondents, by detaining them aboard the vessel and preventing them from disembarking. PAGE| 10 Learned Senior Counsel argued that the filing of a motion ex-parte to shift the vessel to the respondents’ backyard, and the positioning of drilling platforms in front of and behind it, was a clear indication of an intention to secure exclusive custody and control of the vessel and crew. He contended that the 1st respondents’ averment in its reply to further affidavit deposed to on 30/1/98 before the Federal High Court in Benin to the effect that it positioned its drilling platforms in front of and behind the vessel because it noticed “an active preparation by Master of the vessel to attempt another escape” confirmed the appellants’ contention that the vessel and crew were under the respondents’ exclusive control and that it was also why they were aware that a crew member was sick and taken ashore for treatment. He maintained further that the faxes from the master of the vessel about the conditions on board constituted credible evidence of the fact that they were denied necessary supplies. He contended that the letter from an independent company whose tugboat was hired but was denied access to the vessel by the respondents also constituted credible evidence upon which the trial court rightly relied. He referred to a letter written by Union Freight Forwarders Ltd. to the Nigerian Immigration Service (Exhibit Al at pages 159 -160 of the record) which mentioned a court order to arrest the vessel and a subsequent order to shift the vessel; its request to the master of the vessel to submit all travelling documents for revalidation with the Immigration Service (which the master failed to produce); and its request for the dispatch of immigration officers to the ship for security purposes. He argued that the only way Union Freight Forwarders Ltd., which was not a party to the suit, could have known about the court orders, which were obtained ex-parte, was through the respondents. He referred to Exhibits GO1 – G095 – invoices for the supply of water, food and other necessities tendered by the owners of the vessel before the High Court of Justice in England, which were admitted by the lower court as fresh evidence. He submitted that the invoices cover a period of only eight months out of the entire period spent by the appellants inside the vessel and could therefore not absolve the respondents of responsibility for the flagrant breach of their rights. He submitted that it was not the appellants’ case that they were not supplied with food for over eight months but that there were times when the respondents made it impossible to deliver food, water and other necessities to the crew. He referred to the findings of the trial court in this regard at page 422 lines 1-5 and pages 425 – 426 of Vol. II of the record. He submitted that the PAGE| 11 learned trial Judge was right to have found them liable. He referred to the reliefs sought by the appellants in their statement of facts and reliefs at the trial court and submitted that a detention, which infringes on the appellants’ right to dignity, which includes harassing, threatening or taking any step that would threaten and/or jeopardize that right, would be unconstitutional. He submitted that the right to dignity of the human person can be subsumed in the right to personal liberty and urged the court to hold that denying the appellants access to the basic necessities of life constitutes a flagrant abuse of their fundamental rights. He referred to: Uzoukwu Vs Ezeonu II (1991) 6 NWLR (Pt.200) 708 @ 765 & 778; Fawehinmi Vs Abacha (1996) 5 NWLR (Pt.447) 198. He submitted that the findings of the learned trial Judge in this regard cannot be faulted and that the finding of the lower court that the appellants’ detention was by the force of the order of a court was wrong. He submitted that the fact that there was no court order detaining the crew was confirmed by the ruling of Egbo-Egbo, J at page 196 of the record wherein the learned trial Judge refused the application for the appellants’ release on the ground that there was no order to detain them in the first place. He made copious reference to the judgment of the English Court of Appeal in support of the contention that the appellants were unlawfully detained by the respondents and urged this court to resolve the issue against them. In reply to the above submissions, learned Senior Counsel for the respondents submitted that the case of the appellants as set out in their motion on notice a pages 126 – 127 of the record was predicated on the allegation that their passports and seamen’s passbooks were impounded by the respondents, which prevented them from disembarking from the vessel. That their case throughout was that it was the seizure of their travel documents that constituted the unlawful’ detention since they could not disembark without them. He submitted that the learned trial Judge clearly appreciated the basis of the appellants’ complaint when he queried at page 18 of the supplementary record: “Have the applicants been arrested and detained by the defendants, by virtue of the seizure of the applicants’ passports?” He noted further that in the course of its ruling, the trial court held that the impounding PAGE| 12 of the appellants’ passports and Seaman’s travel books was a clear breach of their right to freedom of movement and a restriction of their right to personal liberty and held categorically that the Immigration Authorities represented by the 2nd and 3rd respondents (Minister of Internal Affairs and Comptroller of Immigration respectively) were responsible for the breach. He submitted that the appellants did not appeal against this finding. Learned Senior Counsel argued that the judgment of the trial court was speculative, inconsistent and contradictory and therefore rightly set aside by the lower court. He argued that having held that the 2nd and 3rd respondents were responsible for the appellants’ detention, it was contradictory for the learned trial Judge to later hold that it was the respondents who detained them. He submitted that it was not the appellants’ case that the respondents had a duty, legal or contractual, to supply them with food, water, bunkers etc., and therefore there could not be a valid finding of denial of these items without proof of a duty to so provide. He submitted that there was no finding that the positioning of the respondents’ platform behind and in front of the vessel constituted the act of detention complained of and that in any event Exhibits GO1 – G095 were proof that the vessel received supplies. He observed that there was no finding that any act of the respondents instigated the detention of the vessel. He also submitted that there was no evidence of inhuman treatment or fear of enemy attack. He contended that the appellants failed to refer to any evidence to support the trial court’s findings. Learned Senior Counsel submitted that it is wrong for the appellants to contend that their averments were uncontroverted, having regard to the fact that the respondents strongly denied the appellants’ assertions in their counter affidavits. He submitted that the learned trial judge neither called for oral evidence to resolve the conflicting affidavit evidence nor gave any reason for preferring one set over the other. He argued that any decision reached without resolving the conflicts could not stand. He submitted that the matters mentioned by learned Senior Counsel in paragraph 3.13 of his brief, such as the positioning of the drilling platform, the fact that the respondents vehemently opposed an application to evacuate the crew members and the allegation of denial of access to the ship, do not constitute evidence supporting the judgment of the learned trial Judge. PAGE| 13 He submitted that having regard to its finding that it was the seizure of the appellants’ passports and other documents by the 2nd and 3rd respondents (the Immigration Authority) that constituted the breach of their rights, the lower court was right when it narrowed down the issue for determination to a resolution of the question whether the respondents caused the appellants to be detained by impounding their passports and other travel documents. He submitted that the subsequent finding of the learned trial Judge in the same ruling that the 4th and 5th respondents (1st and 2nd respondents in this appeal) had breached the appellants’ rights is inconsistent. He submitted that the court below was right when it held that the conclusion was reached without a proper appraisal of the affidavit evidence before it. He submitted that there was no appeal against the finding of the trial court that the Nigerian Immigration Service impounded the appellants’ travel documents and were therefore responsible for their detention. He was of the view that the lower court rightly held that there was no basis for laying blame on the respondents in the circumstances. Referring to the invoices, Exhibits GO1 – G095, admitted before the lower court as fresh evidence, learned senior counsel submitted that the said documents, showing supplies made to the vessel during the period that the appellants7 claimed the respondents denied access to it, knocked the bottom off their case. He noted that based on these documents the lower court rightly found that all essential supplies were made to and received by the vessel during the period complained of. He argued that the appellants have failed to show that the finding is perverse. He urged the court to resolve this issue against the appellants. In order to determine this issue it is necessary to appreciate the complaint that was made before the trial court. I reproduced the reliefs sought by the appellants in their application to enforce their fundamental rights earlier in this judgment. Prayers (b) and (c) are for the following orders: “(b) An order directing the Defendants/Respondents either by themselves, their servants, agents, and/or privies and/or anyone acting for or purporting to act on their behalf to return forthwith to the Plaintiffs/Applicants all their International Passports and/or PAGE| 14 Seamen’s Pass Books and/or to do everything necessary to facilitate their disembarkation from the Vessel, “Dubai Valour” and travel out of this country to their countries without let or hindrance and US$5,000,000 (Five Million US Dollars) damages for wrongful and/or illegal detention of the Applicants, and for such order or further orders as to this Honourable Court may deem fit to make in the circumstances. (c) An order allowing the plaintiffs and their vessel to be supplied with bunkers, fresh water, provisions and medicare without hindrance by the defendants or anyone claiming for or in trust for them.” (Emphasis mine) It is in prayer (b) that the allegation of a breach of the appellants’ fundamental rights, to personal liberty by wrongful detention is made and it is premised upon the seizure of their passports and seamen’s passbooks. Prayer (c) is a separate relief for the supply of necessaries to the ship. In the supporting affidavit it is averred that the 2nd and 3rd respondents (the Minister of Internal Affairs and the Comptroller of Immigrations) demanded and impounded the appellants’ international passports and seamen’s passbooks. It is further averred that the 4th defendant (1st respondent in this appeal) in connivance with the Comptroller of Immigration and the 2nd respondent herein had been using extra judicial means to prevent the ship from sailing, had prevented the crew from disembarking and had denied the Protective Agents (Gulf Agency Company) access to the ship to supply food, water, bunkers, etc. to the crew. The 2nd and 3rd respondents (the Immigration Authority) denied preventing the appellants from disembarking from the ship. They referred to the appellants’ supporting affidavit wherein they averred that they voluntarily surrendered their documents through the 4th and 5th respondents. They averred that all they needed to do was to apply for shore leave, which they had not done. They also averred that there was no time the appellants applied for the supply of food, water, bunkers, etc. and the request was refused. The 4th and 5th respondents (the 1st and 2nd respondents in this appeal) also filed a counter affidavit denying the appellants’ allegations. Contrary to the appellants’ assertions, the averments in their supporting affidavit were stoutly controverted by the respondents. The main issues before the court were: i. Who was responsible for the appellants’ detention on board the vessel; and PAGE| 15 ii. Whether the respondents denied the appellants access to food, water, bunkers, etc. In answer to the first issue, the court held inter alia at page 34 lines 6 – 26 of the supplementary record: “Who then has withheld the applicants’ passports?: (a) The applicants alleged that the passports were delivered to the 2nd, 3rd and 4h respondents (that is, the Minister of Internal Affairs, the Comptroller of Immigration and Lone Star Drilling Co. (Paras. 11 and 12). (b) 411 and 5th respondents in para 11 of counter affidavit state that the Immigration demanded the passports. (See also Exhibit A annexed to counter affidavit which suggests the Immigration impounded the passports; (c) Para 9 of the 2nd and 3rd respondents’ counter affidavit admit holding the passports, but that the applicants have not applied for the return of the passports, I therefore have no doubt upon the affidavit and documentary exhibit before this court, that the 2nd and 3rd respondents (the Comptroller of Immigration) and their agents did impound the passports and the travel papers of the 27-man crew of the M/V Dubai Valour. ” (Emphasis mine) On the circumstances in which a citizen’s right to personal liberty may be curtailed, the learned trial Judge quoted the provisions of Section 32 (a) – (c) of the 1979 Constitution and Section 12 (2) of the African Charter on Human and People’s Rights and held that the applicants do not fall within any of the categories of restriction created in those provisions. His Lordship therefore held at page 35 lines 16 – 23 and at page 36 lines 24 -30 of the supplementary record: “For that reason therefore, the impounding and withholding of the applicants’ passports and Seamen’s Travel Books Is a clear breach of their right to freedom of movement and a restriction of right to personal liberty within the meaning of PAGE| 16 Section 32 (1) of the Constitution of the Federal Republic of Nigeria 1979 and Article 12 (2) of the African Charter on Human and Peoples Rights (Cap. 10 LFN1990). And I have already found that it is the 3rd respondents (Nigerian Immigration Authorities) that are responsible for the breach. The want of their passports and their Seamen’s Books is a severe restriction upon and a restriction of the applicants’ right to freedom of movement as it prevents the applicants from leaving Nigeria. I therefore hold that the applicants have proved that their right to freedom of movement and right to personal liberty was curtailed and abridged without justification by the 2nd and 3rd respondents, their agents and their privies.” (Emphasis mine) The respondents herein are clearly not agents or privies of the Nigerian Immigration Service, It is also pertinent to note that there was no appeal against this crucial finding of the trial court. It is settled law that a decision of a court of competent jurisdiction not appealed against remains valid, subsisting and binding between the parties and is presumed to be acceptable to them. See: Iyoho Vs Effiong (20071 11 NWLR (Pt.10441 31; S.P.D.C. Nig. Ltd. Vs X.M. Federal Ltd. & Anor. (20061 16 NWLR (Pt.10041 189: Adejobi & Anor. Vs The State (2011) 12 NWLR (Pt.1261) 347. It therefore means that the issue as to who was responsible for the appellants’ detention aboard the ship had been settled. Notwithstanding the above finding, the learned trial Judge, upon a further appraisal of the affidavit evidence held at pages 41 – 42 of the record: “Upon the authority of all the uncontroverted documentary exhibits and the admitted affidavit evidence, I find that the respondents generally, but specifically the 4h and 5th respondents have grossly abused the fundamental rights of the applicants. In the PAGE| 17 following regard inter alia, – (i) By their getting them all, 27 crew members holed up Inside their vessel since September 1997, without leave of dis-embarkation, except where ill and at the point of death; (ii) By refusing them food, fresh water, bunker; and turning back any person wishing to supply those victual; (iii) By refusing them medical attention and medicament; even at their own expense; (iv) By positioning drilling platforms 400 yards in front of and behind the vessel at the applicants’ jetty; (v) By detaining them inside the vessel when there is no court order for that; and in contravention of Section 32 of the 1979 Constitution: (vi) By instigating men of the Immigration Service to impound their passports and Seamen’s Travel Books (per EXH. Al annexed to 3rd defendant’s counter affidavit The respondents and in particular the 4h and $h Respondents have meted to the applicants – (i) Inhuman treatment by acting without feeling for the mental, psychological and physical suffering of the applicants. (ii) They have created a situation where the applicants have lived in perpetual fear of an “enemy attack” (p.778 Uzoukwu Vs Ezeonu), and (iii) The 4h and $h respondents have treated the applicants in an inhuman and cruel manner, a treatment totally devoid of human feelings. (iv) Finally and most importantly, the action of the 4th and 5th respondents in the entire circumstances of this case, particularly their action of restraining and detaining the 27 member crew in their vessel for over eight months now, with no opportunity to disembark, denying them access to victual and medicament stationing drilling platforms before and behind them, negate all known international maritime law and practice. And it is sure to do great violence to Nigeria’s claim to a Maritime Country before the International Maritime Community. PAGE| 18 I therefore find that the 4th and 5th respondents, in particular, have grossly breached the fundamental rights of the applicants as guaranteed in Section 31 (1) of the 1979 Constitution and Article 5 of the African Charter on Human and People’s Rights.” (Underlining and Emphasis mine) The court below considered the averments in the appellants’ affidavit verifying the facts in support of their application for the enforcement of their fundamental rights, the counter affidavit of the respondents and the respondent’s affidavit to adduce further evidence and held at page 814 lines 1 – 25 of the record: “From the affidavit and counter affidavit evidence it is beyond argument that the delay of the vessel “DUBAI VALOUR” was affected by the order of the Federal High Court, Benin City. The demand for the release of the passports of the 1st – 15th plaintiffs/cross-appellants was at the instance of the Nigerian Immigration Service as communicated to them through Union Freight Forwarders Limited as evidence by Exhibit FA2, a letter dated December 3, 1997 addressed to the Master M. V. Dubai Valour, the salient part of the letter reads: “As you are aware the long delay of your vessel is due to Federal High Court Benin City order for the period of fifty seven days. The Nigeria Immigration Service had directed that this huge period of day (sic) will be covered by their department as such, all twenty-seven crew members seamen Passports must be submitted to their office at Sapele for possible revalidation.” The plaintiffs/cross-appellants deposed that as law abiding people they accordingly surrendered their passports as requested. As a result of their surrendering their passports, they contended that they were unable to disembark from the vessel. …….However it should be noted that the plaintiffs/appellants filed in court on the 11th of December 1997 an application for an order evacuating the crew. PAGE| 19 …….. Suffice it to say that on 16th January, 1998, the trial Judge, in a considered ruling refused the application for evacuation of the crew from the vessel. Subsumed in the application filed on 11/12/97, which the court dismissed on 16/1/98 are two more orders for the supply of water etc. to the vessel and crew members and an order for the immediate return of their passports. Perhaps I should say that sequel to the order of this court granting leave to the appellant to adduce further evidence, the appellants have been able to show, through Exhibit G01 – G095 that all essential items needed for survival on the (sic) board were provided during the period of arrest and the receipts for their payment. Some of the members of the crew who fell ill were given medical attention of BERGER CLINIC, 18 Efejuku Street off Deco Road, Warn. The medical bills issued form part of the afore-mentioned exhibits. A thorough appraisal of the documentary evidence led undoubtedly lays no blame of the appellants.” As observed earlier, the issue as to who was responsible for the appellants7 detention aboard the M/V Dubai Valour was settled by the decision of the trial court against which there is no appeal. On the issue as to whether there was denial of access to food and water, learned Senior Counsel for the appellants referred to Paragraph 18 of the appellants’ verifying affidavit and submitted that some of the exhibits attached thereto, such as: (i) letters from Gulf Agency Company (Protective Agent to the vessel) dated 19/1/98; (ii) a letter from the suppliers, Keyn Ben Nig. Ltd. dated 29/1/98; (iii) e-mail message from Oasis Ship Management dated 22/1/98; and (iv) fax messages from the Master of the vessel dated 26/1/98 and 3/2/98 respectively, clearly point to the respondents’ culpability and that the lower court would not have reached the conclusion it did had it properly averted its mind thereto. He maintained that the facts found and relied upon by the trial court were sufficiently proved by the appellants and uncontroverted by the respondents. PAGE| 20 Firstly, it would not be correct to state that the facts relied upon by the appellants were uncontroverted by the respondents. In the judgment appealed against, the lower court not only reproduced paragraphs 11 – 21 of the appellants’ supporting affidavit but also reproduced paragraphs 11 – 15 of the respondents’ counter affidavit, which specifically denied the averments in the aforesaid paragraphs, along with paragraph 4 of the respondents’ affidavit to adduce further evidence to which Exhibits GO1- G095 were attached. It is significant to note that the application for the enforcement of the appellants’ fundamental rights, which included the prayer for an order that the vessel be supplied with food, water, etc. though dated 27/1/1998 was filed on 4/2/1998. In paragraph 18 of the affidavit verifying the facts it was averred as follows: “Paragraph 18: The 2ndd – 5th Defendants have not only refused to allow any or all of the Plaintiffs herein to disembark except on serious medical reasons as aforesaid but have also recently refused to permit any access to the vessel for the purposes of supplying the vessel and her crew with bunkers, fresh water, provisions, etc,” (Emphasis mine) As rightly found by the court below, Exhibits GO1- G095 cover the period from August 1997 when the vessel was detained by an order of the Federal High Court, Benin up to and including February 1998. They consist of invoices showing the supply of food, water, medical supplies and medical bills. These exhibits clearly debunked the appellants’ claim that the respondents refused to permit any access to the ship. In arguing this appeal before us, the appellants have not shown any specific period not covered by the exhibits. It is settled law that an appellate court would not interfere with the judgment of a lower court unless it is shown that the decision is perverse; or that it is not based on a proper appraisal of the evidence; or there is a misapplication of the law to findings of fact properly made; or that there has been a miscarriage of justice occasioned by an error in procedural or substantive law. See: Aboseldehyde Laboratories Plc. Vs Union Merchant Bank Ltd. & Anor. (20131 13 NWLR (Pt.1370) 91: Oiukwu PAGE| 21 Vs Obasanjo (2004) 12 NWLR (Pt.8861 169 @ 214: Nasiru Vs C.O.P. (19801 1 – 2 SC 61: Saleh Vs B.O.N. Ltd. (20061 6 NWLR (Pt.9761 316: Aabaie Vs Fashola (20081 6 NWLR (Pt.1082) 90 @ 153 B – E. In the instant case, I am satisfied that the conclusion reached by the lower court was based on a proper appraisal of the evidence before it. No cogent reason has been advanced by the appellant to warrant interference with those findings in this regard. This issue is accordingly resolved against the appellants. ISSUE 2 Does the judgment of the Court of Appeal in England on the same issue, namely whether the respondents were guilty or not of false/wrongful imprisonment and/or detention of the appellants hereto not constitute ‘res judicata’ or issue estoppel as between the parties hereto and/or their privies in the circumstances of the case? It is the contention of learned Senior Counsel for the appellant that the issue of who was responsible for their detention had already been settled by the Court of Appeal in England and had already become res judicata as at the time the respondents applied to the lower court to rely on the fresh evidence (Exhibits GO1 – G095), which was before the Court of Appeal in England. He argued that although on the face of the record the parties to the appeals in both cases are not the same, they are the same by their privies. He contended that the issues in dispute in both proceedings are the same. He conceded that decisions of the Court of Appeal of England and indeed the House of Lords do not bind any court in Nigeria but submitted that in so far as the Court of Appeal in England confirmed an earlier finding of fact by the trial court in Nigeria, there were two concurrent findings of fact, which the Court of Appeal could not overturn unless there were strong reasons to do so. He contended that there were no such reasons shown in this case. He argued that the lower court ought to have been persuaded by the said decision. He submitted that the Court of Appeal in England was in a better position to assess all the evidence and reach the conclusion it did because it had all the evidence before it while the lower court only had Exhibits GO1 -G095. He argued further that it was wrong for the lower court to accept PAGE| 22 and rely on the fresh evidence, which emanated from the proceedings before the Court of Appeal in England, while at the same time refusing to accept the findings of the said court. He submitted that there is no appeal against the decision of the Court of Appeal in England and therefore the respondents are bound by it and the lower court ought to have accepted it as conclusive on the issue of detention. He relied on Ukpong Vs Commissioner for Finance and Economic Development (2006) 19 NWLR (Pt.10131 187 @ 216 F – G. In reply to the above submissions, learned Senior Counsel for the respondents submitted that learned Senior Counsel for the appellants did not fault the principles of res judicata and issue estoppel as stated by the lower court nor did he fault the finding that the parties in the appeal in England are not the same as the parties to the instant appeal. He submitted that the appellants were not parties to the case in England and therefore the plea of issue estoppel or estoppel per rem judicatam is not sustainable. He relied on the case of: Oshodi Vs Eyifunmi (2000) 13 NWLR (Pt.684) 298 @ 325. He submitted that apart from the parties not being the same, the claims in the two suits were also different: the claim at the trial court being for the enforcement of the appellants’ fundamental rights while the claim before the court in England was in respect of the sum of US$3 million deposited in an escrow account in the UK pursuant to an agreement between the owners of the vessel, Dubai Valour and the respondents in this appeal. On the contention that the decisions of the Federal High Court and the Court of Appeal in England constitute concurrent findings of facts, learned Senior Counsel submitted that in the circumstances of this case where the parties and issues in the two cases are different, the decisions cannot qualify as concurrent findings of fact. He also noted that the Court of Appeal in England made no independent findings of its own but merely adopted the findings of the Federal High Court. He submitted further that the appellants tendered the judgment of the English court as evidence to be relied upon by the lower court and not as a judgment creating judicial precedent. He submitted further that in so far as the issue in contention before the court in England was the detention of the vessel and not the detention of the appellants, any reference to the appellants’ detention was obiter and therefore could never be of persuasive value. The principle behind the doctrine of estoppel per rem judicatam was explained by this court in: Yusuf Vs Adeaoke & Anor. (20071 11 NWLR (Pt.10451 332 @ 361 – 362 H – A per Aderemi, JSC thus: PAGE| 23 “It has now become well entrenched In our civil jurisprudence that once a matter has been finally and judicially pronounced upon or determined by a court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to relitigate such matter in court. A judicial decision properly handed down is conclusive until reversed by a superior court and its veracity is not open to a challenge nor can it be contradicted. The term derives its force from good public policy which says there must be an end to litigation. The maxim is interest reipublicae ut sit finis litium.” A successful plea of estoppel per rem judicatam ousts the jurisdiction of the court before which it is raised. See: Igbeke Vs Okadigbo (20131 12 NWLR (Pt.13681 225 @ 254 D – E; Igweao Vs Ezeugo (1992) 6 NWLR (Pt.2491 561. It is pertinent to note that although issue estoppel and estoppel per rem Judicatam both come under one head of estoppel by judgment, there are subtle differences between the two. The difference was clearly illustrated by this court in: Oshodi Vs Eyifunmi (20001 13 NWLR (Pt.6841 298 (3) 326 A – D, thus: “This type of estoppel are of two kinds. There is the cause of action estoppel which effectively precludes a party to an action or his agents or privies from disputing, as against the other party in any subsequent proceedings matters which had been adjudicated upon previously by a court of competent jurisdiction between him and his adversary and involving the same issues. There is the second class of estoppel which is issue estoppel: within a cause of action, several Issues may come Into question which are necessary for the determination of the whole case. The rule Is that once one or more of such issues have been distinctly raised in a cause of action and appropriately resolved or determined between the same parties in a court of competent jurisdiction, as a general rule, neither party nor his servant, agent or privy is allowed to re-open or re-litigate that or those decided issues all over again in another action between the same parties or their agents or privies on the same issues. See Lawal v. Yakubu Dawodu (1972) 1 All NLR (Pt. 2) 270 at 272; (1972) 8-9 SC 83; Olu Ezewani v. Nkali Onwordi and Others (1986) 4 NWLR (Pt. 33) 27 at 42 – 43; Samuel Fadiora and Another v. Festus Gbadebo and Another (1978) 3 SC 219 at228 – 229 etc.” See also: Ito Vs Ekoe (20001 3 NWLR (Pt.6501 678. Issue estoppel may arise where a plea PAGE| 24 of res judicata could not be established because the cause of action is not the same. See: Adedayo Vs Babalola (19951 7 NWLR (Pt.4081 383. The conditions precedent to a successful plea of res judicata were amply set out by this Court in the case of The Honda Place Ltd. Vs Globe Motors Ltd. (20051 14 NWLR (9451 273 at 291 B – E as follows: (a) There must be an adjudication of the issues joined by the parties. (b) The parties or their privies as the case may be must be the same in the present case as in the previous case. (c) The issues and subject matter must be the same in the previous case as in the present case. (d) The adjudication on the previous case must have been by a court of competent jurisdiction. (e) The previous decision must have finally decided the issue between the parties, that is the rights of the parties must have been finally determined. The parties to the proceedings before the Court of Appeal in England, as shown at page 548 of the record are: 1. Gulf Azov Shipping Company Limited 2. The United Kingdom Mutual Steamship Assurance Association (Bermuda) Limited And 1. Chief Humphrey Irikefe Idisi 2. Lonestar Drilling Nigeria Limited 3. Lonestar Overseas Limited Of the parties listed above, only the 1st and 2nd respondents in this appeal were parties to the-proceedings in England. As rightly pointed out by learned Senior Counsel for the respondents, the claim before the court was in respect of losses incurred by the plaintiffs/ship owners against the defendants arising from the detention of the vessel in Nigeria. Interestingly PAGE| 25 Exhibits GO1 -G095 were tendered before that court in proof of the period for which the vessel was detained by showing the supply of food, water, bunkers and other necessities for the period. I am in full agreement with their Lordships of the court below that neither the parties nor the subject matter of the two cases is the same. The detention or otherwise of the present appellants was not in issue in that case. In any event, as observed earlier, there is no appeal against the finding of the trial court that the Nigerian Immigration Service was responsible for the appellants’ detention. I agree with their Lordships that the appellants failed to establish the conditions for the application of the doctrine of res judicata or issue estoppel in this case. This issue is accordingly answered in the negative and resolved against the appellants. ISSUE 3 Was it right for the Court of Appeal to have relied on what it called “fresh evidence” produced before the English Court alone, without more to conclude that the respondents did not deny the appellants supply of food, bunkers and provisions? Learned Senior Counsel for the appellants argued that there was a plethora of documentary evidence besides Exhibits GO1 -G095 that proved the wrongful acts of the respondents. He relied on his earlier submissions under issues 1 and 2 above with regard to emails, fax messages and letters written by the Protective Agency, vendors who were unable to discharge products and the letter of distress from the Master of the vessel. He contended that even if the fresh evidence established that necessary items were supplied to the ship, they only covered five out of the twenty months the appellants were detained. He maintained that there was ample evidence showing denial of access to the ship and crew and that it was only after the trial court granted the appellants’ application compelling the respondents to allow them to be supplied with provisions that the respondents yielded. He submitted that apart from the documents referred to, the court failed to consider the far more important aspects of the breach of the appellants’ fundamental rights to personal liberty and freedom, degrading and inhuman treatment and right to life. In reply, learned Senior Counsel for the respondents submitted that the issue as to who was responsible for the appellants’ detention had already been resolved by the trial court when PAGE| 26 it held that the Immigration Authority breached their fundamental right to liberty by seizing their passports and seamen’s passbooks. That the issue in contention was the allegation that the respondents denied access to vessel for the supply of provisions. He submitted that Exhibits GO1- G095, which cover the period from October 1997 to June 1998, showed that all necessary supplies were made to the vessel during that time. He submitted that the finding of the lower court in this regard is unassailable. I dealt with this issue while resolving Issue 1 infra. As observed by learned Senior Counsel for the respondents, the documents show the delivery of necessary provisions to the ship before and up to the time the application was filed. These are the same documents tendered before the court in England by the ship owners to prove the length of time the vessel was detained by showing that it had to be supplied with provisions throughout the period. The finding of the lower court is not perverse as it is clearly based upon a proper appraisal of the evidence before it. I find no reason to disturb the said finding. This issue is therefore resolved against the appellant. Having resolved Issues 1, 2 and 3 against the appellants, it becomes unnecessary to consider issue 4, which is based on the failure of the court below to award monetary compensation in their favour. In conclusion, I hold that the appeal lacks merit. It is hereby dismissed. The parties shall bear their respective costs in the appeal.

SC. 42/2005