Chief Registar, High Court of Lagos state & Anor v. Vamos Navigation Limited (1976)
LawGlobal-Hub Lead Judgment Report
C. O. MADARIKAN, J.S.C.
In Suit No. LD/420/73 in the Lagos High Court, Dosunmu. J. entered judgement against the defendant/company, Messrs. Transocean Nigeria Limited, on the 28th of May, 1973 in the sum of N20,688.49 with N160.00 costs. On the 30th May, 1973, a writ of fifa was issued at the instance of the plaintiffs in that action, Messrs. A.A. Olopade & Sons, and was duly signed by Dosunmu, J. When attempts to levy execution proved futile because the judgement debtors “had closed their office and run away from the country”, the following steps were taken [by the Chief Registrar who deposed on his affidavit as follows] :
“8. That on the 9th of February, 1974 at the instance of the judgement creditor and with my approval my Deputy Sheriff with the aid of the Acting Harbour Master executed the writ of fifa against the vessel ‘BELLATRIX 1’.
9. That it was the judgement creditor who identified the vessel as part of the assets of the judgement debtors before they ran away from the country” .
It is convenient at this stage to set out how the Chief Registrar and the Deputy Sheriff proceeded to execute the said writ of fifa against the vessel- “BELLATRIX 1”.
On the 9th of February, 1974 a document (Exhibit 2) signed by both the Chief Registrar and the Deputy Sheriff emanated from the High Court in Suit No. LD/420/73. Exhibit 2 is a vital document and deserves to be reproduced in full. It reads as follows:
“IN THE HIGH COURT OF LAGOS STATE
FORM 40
PUBLIC NOTICE OF ATTACHMENT OF BOAT NAMED
MS “BELLA TRIX 1”
IN THE APAPA WHARF
SUIT NO. LD/420/73
A.A. OLOPADE & SONS vs. TRANSOCEAN NIG. LTD. & A NOR.
NOTICE
This Boat named MS “BELLATRIX 1″ is hereby attached to secure the enforcement against the defendant of the Judgment of the Court in the above action, and all persons are from the date hereof prohibited from receiving the Boat by purchase, gift or otherwise.
(signed) S.A. Orioye
Deputy Sheriff
Service on:
(1) The Ports Manager, N.P.A.
Apapa, Lagos.
(2) The Captain of the Boat
MS ‘BELLATRIX 1’
The Harbour Master,
N.P.A.,
Lagos.
This ship should be detained until the sum
of N20852.28 is fully paid. by the Defendants.
(Signed) J .A. Ojomo
9th February, 1974”.
It would appear that after the service of a copy of
exhibit 2 on the Harbour Master on the 9th February,
1974, he issued a Detention Order (exhibit A) in the following terms:
“NIGERIAN PORTS AUTHORITY
To: Chief Pilot, APQ
Date: 9th February, 1974
From: Harbour Master, Lagos. Our Ref: H M L/4/70/2500
Re: Detention Order-m. v. “BELLA TRIX 1″
Please be informed that the above ship when ready to leave the Port will be made fast to No. 3M/Bouys and she is not to leave the Port. These are the Orders from High Court of Lagos State.
2. Her release will be communicated to you in due course when I hear from the High Court of Lagos State.
(Signed) Capt. U .C. Kala
A G. Harbour Master, Lagos. ”
Exhibi t A was addressed to the Chief Pilot, Apapa Quay, and copied to the Master of the vessel – “BELLATRIX 1” – at Apapa and to the Port Manager, Lagos.
In consequence of all these, the owners of the vessel BELLATRIX I, Messrs. Vamos Navigation Limited, commenced the proceedings (Suit No. FRC/L/M16/74 resulting in the present appeal) in the Federal Revenue Court, Lagos, by filing a statement in that court entitled “Statement pursuant to the Rules of the Supreme Court in England, Order 53 Rule 1(2)” and seeking leave on an ex parte motion to apply for an order of prohibition. Leave was duly granted, and in pursuance thereof, an application for prohibition was filed by the applicants/ respondents. The application was entitled:
“In the matter of an application by Vamos Navigation
Limited (Owners of the vessel- “BELLA TRIX 1″).. .. Applicant
AND
In the matter of an order dated the
9th day of February, 1974 made by both the
Deputy Sheriff and the Chief Registrar, High Court of Lagos State
pursuant to the judgement of the High Court of Lagos State in Suit No. LD/420/73”
and the prayer therein was “for an order of prohibition directed to
The Chief Registrar, High Court of Lagos State;
The Deputy Sheriff, High Court of Lagos State; and
The Harbour Master of the Nigeria Ports Authority
to prohibit them from further proceeding in the above mentioned action. ”
The grounds on which relief was sought were stated in the application as follows:
(1) want of jurisdiction by both the Deputy Sheriff and the Chief Registrar, High Court, Lagos, each acting in his official capacity;
(2) want of jurisdiction of the High Court of Lagos State by virtue of section 7 of the Federal Revenue Court Decree, 1973; and
(3) that the arrest and detention of the vessel- BELLATRIX 1 by both the Deputy Sheriff and the Chief Registrar, High Court of Lagos State were wrongful and illegal.
After hearing arguments based, in so far as the facts were concerned, on affidavit evidence, the learned President of the Federal Revenue Court in a considered judgement came to the conclusion that the applicants, Messrs. Vamos Navigation Limited, who were the owners of the vessel – BELLATRIX 1 – were not a party to the proceedings (Suit No. LD/420/73) in the Lagos High Court; and after reviewing the authorities, adjudged as follows:
“I think it is sufficient for me to say that, by and large, prohibition does not run from one superior Court of record to another and that it does not lie from this Court to the High Court of Lagos.”
We understand the learned President to mean thereby that it was not competent for him to grant the order of prohibition sought.
Instead of concluding the matter there, the learned President expressed the view that he could exercise the Court’s inherent powers; and in the purported exercise of those powers, he not only castigated the Chief Registrar and the Deputy Sheriff for the parts they played in this matter but he also ordered them to pay the sum of N54,000.00 being demurrage incurred by the applicants as owners of what the learned
President described as “the illegally detained ship”. That was after he had ordered that the vessel – “BELLATRIX 1” – be released from arrest at once. It is sufficient for us to observe, in passing, that the vessel was not under arrest, but, as we shall show later, it had been attached on the strength of a writ of fifa.
Both the Chief Registrar and the Deputy Sheriff of the Lagos High Court were dissatisfied with the decision of the lower court, and each of them has lodged an appeal to this Court. At the hearing of the appeal, they were represented by Chief F.R.A. Williams whose arguments though limited within a narrow compass are of considerable importance.
Before us on appeal, Chief Williams and learned counsel for the applicants/respondents, Mr. G.L. Impey, were at one in contending that the order of the lower court for payment of N54,000.00 as demurrage could not be supported. We have no difficulty in accepting their contention. It is clear from the application before the lower court that the relief sought by the applicants was for an order of prohibition. The learned President having, rightly in our view, come to the conclusion that he could not grant that relief, it was not open to him to proceed to order payment of demurrage which was not claimed by the applicants. (See Ekpenyong and Drs. v. Nyong and Drs. 1975 2S.C. 71 at page 80). We think that if the learned President had not resorted to exercising inherent powers which he did not possess, it is possible that he would not have considered it necessary to criticize the actions of both the Chief Registrar and the Deputy Sheriff as strongly as he had done.
The main point taken by Chief Williams in this appeal was whether the Chief Registrar and the Deputy Sheriff (1st and 2nd appellants respectively) were right in the steps taken by them pertaining to the execution of the writ of fi fa.
The learned President of the Federal Revenue Court expressed the view that proceedings for the arrest or detention of a ship are maintainable only in the Admiralty Court or in a Court exercising Admiralty jurisdiction; and, as by virtue of the provisions of section 7(1)(d) of the Federal Revenue Court Decree, 1973 the only court exercising original Admiralty jurisdiction in Nigeria is the Federal Revenue Court, he concluded that proceedings for the arrest or
detention of the vessel – BELLATRIX 1 – ought to have been commenced in the Federal Revenue Court. The learned President also came to the definite conclusion that the notice of attachment of the vessel under the hand of the Chief Registrar and his Deputy Sheriff was illegal and wrongful.
In our view, the true nature of the. proceedings in the Lagos High Court was an execution of the writ of fita issued in Suit No. LD/420/73. It was not and ought not to be confused with an Admiralty action in rem directed against a res. The James W. Elwell [1921] P. 351 is direct authority in support of the proposition that a writ of fifa could be executed on a ship.
An action in rem in Admiralty is primarily a proceeding against a ship or res by way of arrest and is indirectly a process compelling the appearance of the owner of the ship to defend his property thereby impleading him to answer to the judgement of the court to the extent of his interest in the property. (See The Parlement Beige (1880) 42 L.T. 273). In our view, the learned President was in error when he held that the instant case was an action in rem in Admiralty.
We have reproduced, earlier in this judgement, the document (Exhibit 2) stated on the face of it to be in Form 40. Mr. Impey has criticized the use of Form 40 of the First Schedule to the Judgements (Enforcement) Rules in that that Form is only applicable to attachment of land. We think that the cricism is well founded even though it can be of no avail in this case because the writ of fifa and other documents issued by the High Court have not been attacked on the ground of irregularity. Order 5 rule 3 of the Judgements (Enforcement) Rules provide as follows:
“The attachment of immovable property shall be effected by the delivery of the notice of attachment in Form 41 mentioned in the next succeeding rule, and unless the court shall otherwise order, by pasting in a conspicuous place on the land a notice in Form 40 prohibiting all persons from receiving the same by purchase, gift or otherwise; and the Sheriff may also take and retain actual possession of the land by putting into possession thereof some fit person approved by the Sheriff. ”
In our view. the scope of Order 5 rule 3 is restricted to attachment of land; and ought not to have been extended to a vessel by modelling Exhibit 2 on Form 40 as a vessel is a movable property and the rule clearly relates to immovable property,
We however wish to point out that, in appropriate cases, the correct form to be used for the arrest and detention of a ship is Form 63 under Order 11 rule 1 which provides that
..An order”………….for the arrest and detention of any ship shall be enforceable by a warrant in Form 63″.
Throughout these proceedings, the applicants/respondents have persistently maintained that:
(1) they were not parties to suit No. LD/420/73 in the Lagos High Court;
(2) they were not aware that judgement had been entered in that action against Messrs. Transocean (Nigeria) Limited; and
(3) they had no connection with Messrs. Transocean (Nigeria) Limited.
On these facts, the present application for an order of prohibition which to us appears to have been based on the mistaken view that the vessel – BELLATRIX 1 – had been arrested and detained in Admiralty proceedings was misconceived and cannot succeed.
In the result, this appeal must succeed and it is hereby allowed. The judgement of the lower court in Suit No. FRC/L/MI6/74 delivered on the 26th of February, 1974 together with the order for costs is hereby set aside and in its stead we order that the application for an order of prohibition be and is hereby dismissed. The applicants/respondents shall pay to each of the respondents/appellants the costs of this appeal assessed at N100 in this Court and N50 in the court below.
In Suit No. LD/420/73 in the Lagos High Court, Dosunmu. J. entered judgement against the defendant/company, Messrs. Transocean Nigeria Limited, on the 28th of May, 1973 in the sum of N20,688.49 with N160.00 costs. On the 30th May, 1973, a writ of fifa was issued at the instance of the plaintiffs in that action, Messrs. A.A. Olopade & Sons, and was duly signed by Dosunmu, J. When attempts to levy execution proved futile because the judgement debtors “had closed their office and run away from the country”, the following steps were taken [by the Chief Registrar who deposed on his affidavit as follows] :
“8. That on the 9th of February, 1974 at the instance of the judgement creditor and with my approval my Deputy Sheriff with the aid of the Acting Harbour Master executed the writ of fifa against the vessel ‘BELLATRIX 1’.
9. That it was the judgement creditor who identified the vessel as part of the assets of the judgement debtors before they ran away from the country” .
It is convenient at this stage to set out how the Chief Registrar and the Deputy Sheriff proceeded to execute the said writ of fifa against the vessel- “BELLATRIX 1”.
On the 9th of February, 1974 a document (Exhibit 2) signed by both the Chief Registrar and the Deputy Sheriff emanated from the High Court in Suit No. LD/420/73. Exhibit 2 is a vital document and deserves to be reproduced in full. It reads as follows:
“IN THE HIGH COURT OF LAGOS STATE
FORM 40
PUBLIC NOTICE OF ATTACHMENT OF BOAT NAMED
MS “BELLA TRIX 1”
IN THE APAPA WHARF
SUIT NO. LD/420/73
A.A. OLOPADE & SONS vs. TRANSOCEAN NIG. LTD. & A NOR.
NOTICE
This Boat named MS “BELLATRIX 1″ is hereby attached to secure the enforcement against the defendant of the Judgment of the Court in the above action, and all persons are from the date hereof prohibited from receiving the Boat by purchase, gift or otherwise.
(signed) S.A. Orioye
Deputy Sheriff
Service on:
(1) The Ports Manager, N.P.A.
Apapa, Lagos.
(2) The Captain of the Boat
MS ‘BELLATRIX 1’
The Harbour Master,
N.P.A.,
Lagos.
This ship should be detained until the sum
of N20852.28 is fully paid. by the Defendants.
(Signed) J .A. Ojomo
9th February, 1974”.
It would appear that after the service of a copy of
exhibit 2 on the Harbour Master on the 9th February,
1974, he issued a Detention Order (exhibit A) in the following terms:
“NIGERIAN PORTS AUTHORITY
To: Chief Pilot, APQ
Date: 9th February, 1974
From: Harbour Master, Lagos. Our Ref: H M L/4/70/2500
Re: Detention Order-m. v. “BELLA TRIX 1″
Please be informed that the above ship when ready to leave the Port will be made fast to No. 3M/Bouys and she is not to leave the Port. These are the Orders from High Court of Lagos State.
2. Her release will be communicated to you in due course when I hear from the High Court of Lagos State.
(Signed) Capt. U .C. Kala
A G. Harbour Master, Lagos. ”
Exhibi t A was addressed to the Chief Pilot, Apapa Quay, and copied to the Master of the vessel – “BELLATRIX 1” – at Apapa and to the Port Manager, Lagos.
In consequence of all these, the owners of the vessel BELLATRIX I, Messrs. Vamos Navigation Limited, commenced the proceedings (Suit No. FRC/L/M16/74 resulting in the present appeal) in the Federal Revenue Court, Lagos, by filing a statement in that court entitled “Statement pursuant to the Rules of the Supreme Court in England, Order 53 Rule 1(2)” and seeking leave on an ex parte motion to apply for an order of prohibition. Leave was duly granted, and in pursuance thereof, an application for prohibition was filed by the applicants/ respondents. The application was entitled:
“In the matter of an application by Vamos Navigation
Limited (Owners of the vessel- “BELLA TRIX 1″).. .. Applicant
AND
In the matter of an order dated the
9th day of February, 1974 made by both the
Deputy Sheriff and the Chief Registrar, High Court of Lagos State
pursuant to the judgement of the High Court of Lagos State in Suit No. LD/420/73”
and the prayer therein was “for an order of prohibition directed to
The Chief Registrar, High Court of Lagos State;
The Deputy Sheriff, High Court of Lagos State; and
The Harbour Master of the Nigeria Ports Authority
to prohibit them from further proceeding in the above mentioned action. ”
The grounds on which relief was sought were stated in the application as follows:
(1) want of jurisdiction by both the Deputy Sheriff and the Chief Registrar, High Court, Lagos, each acting in his official capacity;
(2) want of jurisdiction of the High Court of Lagos State by virtue of section 7 of the Federal Revenue Court Decree, 1973; and
(3) that the arrest and detention of the vessel- BELLATRIX 1 by both the Deputy Sheriff and the Chief Registrar, High Court of Lagos State were wrongful and illegal.
After hearing arguments based, in so far as the facts were concerned, on affidavit evidence, the learned President of the Federal Revenue Court in a considered judgement came to the conclusion that the applicants, Messrs. Vamos Navigation Limited, who were the owners of the vessel – BELLATRIX 1 – were not a party to the proceedings (Suit No. LD/420/73) in the Lagos High Court; and after reviewing the authorities, adjudged as follows:
“I think it is sufficient for me to say that, by and large, prohibition does not run from one superior Court of record to another and that it does not lie from this Court to the High Court of Lagos.”
We understand the learned President to mean thereby that it was not competent for him to grant the order of prohibition sought.
Instead of concluding the matter there, the learned President expressed the view that he could exercise the Court’s inherent powers; and in the purported exercise of those powers, he not only castigated the Chief Registrar and the Deputy Sheriff for the parts they played in this matter but he also ordered them to pay the sum of N54,000.00 being demurrage incurred by the applicants as owners of what the learned
President described as “the illegally detained ship”. That was after he had ordered that the vessel – “BELLATRIX 1” – be released from arrest at once. It is sufficient for us to observe, in passing, that the vessel was not under arrest, but, as we shall show later, it had been attached on the strength of a writ of fifa.
Both the Chief Registrar and the Deputy Sheriff of the Lagos High Court were dissatisfied with the decision of the lower court, and each of them has lodged an appeal to this Court. At the hearing of the appeal, they were represented by Chief F.R.A. Williams whose arguments though limited within a narrow compass are of considerable importance.
Before us on appeal, Chief Williams and learned counsel for the applicants/respondents, Mr. G.L. Impey, were at one in contending that the order of the lower court for payment of N54,000.00 as demurrage could not be supported. We have no difficulty in accepting their contention. It is clear from the application before the lower court that the relief sought by the applicants was for an order of prohibition. The learned President having, rightly in our view, come to the conclusion that he could not grant that relief, it was not open to him to proceed to order payment of demurrage which was not claimed by the applicants. (See Ekpenyong and Drs. v. Nyong and Drs. 1975 2S.C. 71 at page 80). We think that if the learned President had not resorted to exercising inherent powers which he did not possess, it is possible that he would not have considered it necessary to criticize the actions of both the Chief Registrar and the Deputy Sheriff as strongly as he had done.
The main point taken by Chief Williams in this appeal was whether the Chief Registrar and the Deputy Sheriff (1st and 2nd appellants respectively) were right in the steps taken by them pertaining to the execution of the writ of fi fa.
The learned President of the Federal Revenue Court expressed the view that proceedings for the arrest or detention of a ship are maintainable only in the Admiralty Court or in a Court exercising Admiralty jurisdiction; and, as by virtue of the provisions of section 7(1)(d) of the Federal Revenue Court Decree, 1973 the only court exercising original Admiralty jurisdiction in Nigeria is the Federal Revenue Court, he concluded that proceedings for the arrest or
detention of the vessel – BELLATRIX 1 – ought to have been commenced in the Federal Revenue Court. The learned President also came to the definite conclusion that the notice of attachment of the vessel under the hand of the Chief Registrar and his Deputy Sheriff was illegal and wrongful.
In our view, the true nature of the. proceedings in the Lagos High Court was an execution of the writ of fita issued in Suit No. LD/420/73. It was not and ought not to be confused with an Admiralty action in rem directed against a res. The James W. Elwell [1921] P. 351 is direct authority in support of the proposition that a writ of fifa could be executed on a ship.
An action in rem in Admiralty is primarily a proceeding against a ship or res by way of arrest and is indirectly a process compelling the appearance of the owner of the ship to defend his property thereby impleading him to answer to the judgement of the court to the extent of his interest in the property. (See The Parlement Beige (1880) 42 L.T. 273). In our view, the learned President was in error when he held that the instant case was an action in rem in Admiralty.
We have reproduced, earlier in this judgement, the document (Exhibit 2) stated on the face of it to be in Form 40. Mr. Impey has criticized the use of Form 40 of the First Schedule to the Judgements (Enforcement) Rules in that that Form is only applicable to attachment of land. We think that the cricism is well founded even though it can be of no avail in this case because the writ of fifa and other documents issued by the High Court have not been attacked on the ground of irregularity. Order 5 rule 3 of the Judgements (Enforcement) Rules provide as follows:
“The attachment of immovable property shall be effected by the delivery of the notice of attachment in Form 41 mentioned in the next succeeding rule, and unless the court shall otherwise order, by pasting in a conspicuous place on the land a notice in Form 40 prohibiting all persons from receiving the same by purchase, gift or otherwise; and the Sheriff may also take and retain actual possession of the land by putting into possession thereof some fit person approved by the Sheriff. ”
In our view. the scope of Order 5 rule 3 is restricted to attachment of land; and ought not to have been extended to a vessel by modelling Exhibit 2 on Form 40 as a vessel is a movable property and the rule clearly relates to immovable property,
We however wish to point out that, in appropriate cases, the correct form to be used for the arrest and detention of a ship is Form 63 under Order 11 rule 1 which provides that
..An order”………….for the arrest and detention of any ship shall be enforceable by a warrant in Form 63″.
Throughout these proceedings, the applicants/respondents have persistently maintained that:
(1) they were not parties to suit No. LD/420/73 in the Lagos High Court;
(2) they were not aware that judgement had been entered in that action against Messrs. Transocean (Nigeria) Limited; and
(3) they had no connection with Messrs. Transocean (Nigeria) Limited.
On these facts, the present application for an order of prohibition which to us appears to have been based on the mistaken view that the vessel – BELLATRIX 1 – had been arrested and detained in Admiralty proceedings was misconceived and cannot succeed.
In the result, this appeal must succeed and it is hereby allowed. The judgement of the lower court in Suit No. FRC/L/MI6/74 delivered on the 26th of February, 1974 together with the order for costs is hereby set aside and in its stead we order that the application for an order of prohibition be and is hereby dismissed. The applicants/respondents shall pay to each of the respondents/appellants the costs of this appeal assessed at N100 in this Court and N50 in the court below.
Other Citation: (1976) LCN/2344(SC)
