Ex parte order for arrest of ship shall subsist and not lapse automatically after 14 days.

Transnav Purpose Navigation Ltd. v. Sam Purpose (Unreported) – Suit No. FHC/L/CS/39/17 – Idris J:

“Counsel to the Defendant/Applicant relied on the decision of the Court of Appeal in JESSCO MARITIME RESOURCES LTD VS. THE “MT” MOTHER BENEDICTA & ANOR. (UNREPORTED) APPEAL NO. CA/L/511/2010 in arguing that the lifespan of an ex parte order is only 14 days. I must say that I do not agree with the argument of Counsel in this regard… Therefore it seems to me that Counsel has misconstrued the provision of the Rules of this Court and as a result the argument cannot be sustained. In the light of the foregoing… the ex parte order still subsists until the Defendant provides security for the claim of the Plaintiff.”

Order of arrest of ship subsists after fourteen days

Blogger’s Note:

In the above case, the trial Court made an ex parte Order on 13/1/2017 for the arrest of the Defendant Ship. On 9/2/2017, the Defendant applied for an order releasing the Ship from arrest on the ground that the ex parte Order had expired since 14 days had elapsed. The second ground for the application for release was that the Plaintiff in making the application ex parte for the arrest of the Ship, concealed/suppressed a fact relating to the existence of an arbitration clause in their contract. In its Ruling of 31/3/2017, the Court refused the prayer for the release of the Ship holding that its Order had not expired even though 14 days had elapsed as quoted above. The Court also held that “the mere fact that the agreement contained an arbitration clause can be regarded as a minor fact”. Therefore, concealment of same does not amount to a suppression or concealment of a material fact capable of discouraging the Court from granting the Order in the first place. The Court further held that the mere fact that parties agreed to submit to arbitration does not affect the ex parte order for arrest of a vessel.

Order 26 Rule 12(1) and (2) of the Federal High Court (Civil Procedure) Rules 2009 provides that “No order made on motion ex parte shall last for more than fourteen days after the party or person affected by the order has applied for the order to be varied or discharged or last for another fourteen days after application to vary or discharge it has been argued. If a motion to vary or discharge an ex parte order is not taken within fourteen days of its being filed, the ex parte order shall lapse.”

In arriving at its decision based on the above provisions of the Rules, the trial Court referred to some authorities such as the case of Brittania-U (Nig.) Ltd. v. Seplat Dev. Co. Ltd. [2016] 4 NWLR (Pt. 1503) 541, decided on 29/1/2016. There, the Supreme Court interpreted the provisions of Order 26 Rule 12(1) and (2) and held that no order made on motion ex parte shall last for more than 14 days after the party or person affected by the order has applied for the order to be varied or discharged or last for another 14 days after application to vary or discharge it has been argued. More so, if a motion to vary or discharge an ex parte order is not taken within 14 days of its being filed, the ex parte order shall lapse. The Court concluded that the interim order of 13/12/2013 amended on 23/12/2013 in that case had both expired by effluxion of time, 14 days having expired. The Supreme Court reasoned that an ex parte order of injunction was not meant to operate as a temporal victory to be used against the adverse party indefinitely. Notably, the case was about an interim injunction granted by the trial court in favour of the Appellant against the sale of OML 52, 53 and 55.

The trial Court also referred to the Court of Appeal case of Jessco Maritime Resources Ltd. v. The MT Mother Benedicta supra decided on 1/7/2016. There, the Court of Appeal held that the lifespan of an ex parte order is only 14 days and that the ruling of court discharging the order after the 14 days had elapsed was a mere surplausage. The case bordered on an interim order granted for the arrest of the 1st Respondent ship.

Arrest of ship

In the face of the above decisions, the learned trial Judge in the case of Transnav Purpose Navigation Ltd. v. Sam Purpose supra relied on an earlier Court of Appeal case of Nigerian Ports Authority Supernuation v. Fasel Services Ltd.  [2002] FWLR (Pt. 97) 719 CA in arriving at its decision. In that case, it was held that an ex parte order does not automatically lapse after 14 days as it was not the intention of the framers of the rules of court to limit the powers of the trial Judge to 14 days after making the order.

The position of the Supreme Court in Brittania-U and the position of the Court of Appeal in Jessco appears to be the standing authorities on the proper interpretation of the provisions of Order 26 Rule 12 even as it relates to an ex parte Order for the arrest and detention of a Ship. However, the trial Court in Transnav refused to be bound by those decisions. What we could deduce from the reasoning of the Court is that its decision was based on what it perceived as what the law ought to be and the justice of the case. Should the Defendant opt to appeal the Ruling, then the decision of the appellate court would assist in further clarifying the position of the law on the point.

NB: Based on the agreement of parties, the Court ordered that proceedings be stayed pending the conclusion of arbitration but refused the application for release of the Ship.

Need a certified copy of the Ruling in Transnav’s case, contact us.

The court cannot grant extension of tenure to a President or Governor that was illegally impeached from office.

Nyako v. Adamawa State House of Assembly & Ors. [2017] 6 NWLR (Pt. 1562) 347 at 412, paras. D-G, per Peter Odili, JSC:

“This Court in a recent case involving Marwa v. Nyako (2012) 6 NWLR (Pt. 1296) 199 at 387 stated that section 180(1) and 2(a) of the 1999 Constitution of the Federal Republic of Nigeria has prescribed a single term of 4 years and if a second term, another period of 4 years and not a day longer. Therefore, no court in the land has the power to extend that period of either the 4 years single term or the second term of another 4 years and so if peradventure something such as an illegal impeachment eroded into that 4 years term, it is too bad as that period of infraction cannot be brought back or an extension of time to add up to what was lost…”

Former Gov Nyako Adamawa

Photo Credit: InformationNG

Blogger’s Note:

The Appellant was elected Governor of Adamawa State on 5/2/2012. On 15/7/2014, he was impeached. The Appellant challenged his impeachment by way of fundamental rights action as a result of which the Federal High Court struck out the case. On appeal, the Court of Appeal allowed the appeal in part, invoked its statutory powers and determined the merits of the Appellant’s Originating Motion whereupon it found and declared the Appellant’s impeachment illegal.  On the prompting and  concession of the Appellant’s Counsel that the Appellant’s tenure had expired, the Court of Appeal struck out the Appellant’s prayer for reinstatement. Surprisingly, the Appellant appealed to the Supreme Court arguing that the Appellant ought to be reinstated to the office of the Governor by the Court of Appeal since his impeachment was declared illegal and unconstitutional. The Supreme Court said no, and dismissed the Appeal on the ground that the Court lacks the power to extend an expired tenure of office for a governor.

Notably, the Supreme Court left no one in doubt as to whether the above position applies to the President or other public office holders. The Court, per Sanusi, JSC (at page 424, para. E), held that no court has the power to elongate the tenure of any public office holder such as the President or Governor of a state.

The reasons furnished by the learned Justices of the Supreme Court are that: the court cannot add or subtract from what the Constitution has provided; the courts are to give effect to the clear, plain and unambiguous stipulations in the Constitution; any attempt to elongate the period is unconstitutional and will lead to a chaotic situation and cause gross injustice or may lead to political unrest or uproar (especially where there is a successor in office as in the instant case).

Aside the above reasons given by the Court, the Supreme Court was further strengthened in its decision in view of the fact that Counsel to the Appellant had at the Court of Appeal conceded that the Appellant’s claim for reinstatement had been overtaken by effluxion of time and consequently, the relief for reinstatement had become spent. The Court of Appeal accordingly struck out the relief upon the withdrawal of same by the Appellant’s Counsel. Interestingly, at the Supreme Court, the Appellant abandoned its earlier concession at the Court of Appeal and argued that the Court of Appeal was in error to have relied on the Appellant’s or his Counsel’s concession or mere averments that the Appellant’s tenure had ended since the issue of tenure of office was governed by the Constitution. The Appellant’s Counsel also submitted that having found the impeachment illegal, a consequential order of reinstatement ought to have been made. The Supreme Court was not persuaded. M. D, Muhammad, JSC rightly held that the relief for reinstatement having been withdrawn and struck out could not be revisited at this stage. See pages 378-379 of the report.

The Supreme Court made a heavy weather of Appellant’s Counsel’s concession. Indeed, it was unfortunate that learned Senior Counsel would blow hot and cold. Counsel ought to always assist the Court in the determination of disputes. However, with respect, the earlier concession made by the Appellant’s Counsel should not form the basis for holding that the Appellant could not be reinstated. The provision of the Constitution is what is material and Counsel’s concession in the instant case, to my mind, is inconsequential. The proper finding should be that despite the concession, the Appellant cannot be reinstated as the courts lack the power to elongate time and so cannot make any consequential orders to that effect. All the reasons identified above are compelling and remains the main basis of the decision of the Supreme Court which is supported.

As confirmed by the apex Court, there is no provision in the Constitution to cover illegal impeachment and there is nothing in the Constitution to protect a Governor wrongly impeached.  Sadly, in the instant case, the Supreme Court held that the courts are under a constitutional duty to reinstate the Appellant to office after it found that he was illegally removed from office; but it however held that this cannot be done due to the fact that his term of 4 years in office has since expired. See Rhodes-Vivour, JSC at page 404, para. H of the report.

Although the above position is clearly in line with the Constitution, what is left to be said is that there exists a gap in the Constitution for mischievous politicians to tap through in executing illegal motives. Our lawmakers need to look closely at the issue to see about a possible constitutional amendment that will close the gap. More so, the courts should ensure that such cases affecting political office holders are always treated with the urgency they deserve.