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.

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