Before Their Lordships
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
MONDINVEST LIMITED Appellant(s)
AND
DREGING ENVIRONMENTAL AND MARINE NV (OWNERS OF THE MV “BREUGHEL”, SISTER VESSEL TO THE MV “Congo River”) Respondent(s)
…………………….A…………………….
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is predicated on a judgment of the Federal High Court delivered on the 16th day of February, 2016 by HON. JUSTICE BUBA in suit No: FHC/L/CS/1611/2015 wherein the Court limited the liability of the Respondent. Dissatisfied with the decision of the Court, the Appellant filed an amended Notice of Appeal on the 15th June, 2016 setting out 5 grounds of appeal.
The Appellant commenced an admiralty action in rem against the vessel M.V BREUGHEL and sister vessel, the M.V CONGO RIVER before the Federal High Court, Lagos seeking various reliefs which are principally damages for the damage done to its property including the sum of N700million and N3 billion general damages.
By the nature of the action, the vessel was arrested and detained until a bank guarantee in the sum of N3.7 billion was posted for her release while the matter was set down for determining the liability of the vessel on the merit in SUIT NO: FHC/L/CS/1329/2015. The Respondents immediately by an originating summons commenced Suit No. FHC/L/CS/1611/2015 seeking to limit its liability as owners of the offending vessels under Section 351 of the Nigerian Merchant Shipping Act 2007. The originating summons was opposed and upon determination, the Court below granted the relief sought by the Respondents and limited the liability of the Respondent and ordered the creation of a limitation fund in favour of the Respondent for alleged damage caused the Appellants property and parties unknown to the Court for the project and capped the amount to $5,251,926.23 (Five Million Two Hundred and Fifty one Thousand, Nine Hundred and Twenty six Dollars and Twenty Three cents) or its naira equivalent. The Appellant felt aggrieved thus this appeal.
The Appellants brief settled by Anthony Nkadi dated and filed on the 23rd May, 2017 set out 5 issues for determination as follows:
i. Whether the learned Judge erred in law by ordering the limitation of liability for the Respondent who did not provide any evidence of the sea worthiness of one of the two offending vessels.The MV Congo River having regards to the facts and circumstances of this case.
ii. Whether the learned trial judge erred in law by ordering the limitation of liability for the Respondent who was engaged in unlawful, and illegal activities which caused and continue to cause damage to the Appellants property.
iii. Whether the learned trial judge erred in holding that the Appellant had failed to prove/show the link of causation of the damage to its property from the unlawful acts and commissions of the respondent (by not having any lawful authorization to operate) or that the Respondent and its agents acted negligently with the intent or recklessly with knowledge that such loss would probably result to the Appellants property as required under Section 355 of the Merchant Shipping Act 2007?
iv. Whether the learned trial judge was correct in handling a carte blanche limitation of liability cover to the Respondent by extending the limitation of liability of the Respondent to all present and future negligent acts or omissions of the Respondent for the entire duration of the Eko Atlantic project?
v. Whether the learned trial Judge erred in law when he held that the MV BREGHEL being a Dredger was exempted from the requirements of compulsory pilotage (notwithstanding that it was not operating within the ports precincts) contrary to the provisions of the Section 42 (3) (f) of the Nigerian Ports Authority Act? The Respondent on its part formulated 3 issues for determination thus:
a. Whether the learned trial judge was right in holding that the Respondents was entitled to limit its liability as the Appellant had failed to prove existence of the conditions specified
…………………….B…………………….
