17 March 2014, Lagos – The Lagos division of the Court of Appeal last Friday ordered the return of the sum of N7 billion to the coffers of the Nigerian Maritime Administration and Safety Agency (NIMASA) in an appeal between the agency and Hensmor Nigeria Limited.
In a considered and unanimous judgement, the court agreed with the arguments of the counsel to NIMASA, Mr. Louis Mbanefo (SAN), Chief Adegboyega Awomolo (SAN) and Dr. Fabian Ajogwu (SAN) and allowed the appeal against the judgment of a Federal High Court in Lagos, on the grounds that there were no credible evidences upon which judgment was entered in favour of the respondent at the trial court.
The appellate court also held that the vessel,M.T. Agbomien, subject matter of the suit, was not seaworthy going by the provisions of the Merchant Shipping Act and was therefore justifiably detained.
The court however held that the Public Officers Protection Act was not applicable to the matter.
Justice Okon Abang of the Federal High Court in Lagos had awarded the sum in favour of Hensmor, which is a maritime services provider company, over an alleged unlawful detention of its vessel named M. T. Aigbomen by NIMASA.
Hensmor had alleged in its statement of claim before the lower court that its vessel, M. T. Aigbomen, was illegally detained by NIMASA while 63,000 metric tonnes of Kerosene stored in it, was stolen.
It was further alleged that all administrative efforts made by the company to secure the release of the vessel proved abortive, hence the need for
NIMASA had, in its statement of defence, stated that on March 14, 2006, its harbour master called to inform the agency that M. T. Aigbomen was not sea worthy and that as an agency responsible by statute for the regulation and safety of marine services, the ship in question was inspected and it was discovered among other things that its sea worthiness had expired since 2005.
It added that the ship was promptly detained, pending when all the defects would be rectified.
NIMASA stressed that rather than put machinery in motion to do the right thing, Hensmor rushed to the court.
In a unanimous decision of three panel of judges, the appellate, on Friday, set aside the judgment of Justice Abang and upheld the appeal of NIMASA, on the grounds that the police investigation report solely relied on by Justice Abang. in arriving at his verdict, containing allegation of crime, was not tendered by the maker of the document, who was the deputy commissioner of police that investigated the matter; neither was any reason adduce for tendering it through the sole witness of the company, whose evidence under cross examination was based on hear say.
In addition, the agency was equally not given the opportunity to cross examine the said Police officer, who investigated the case of theft involved in the matter.
Citing another reason, the appellate court said there was no evidence before the lower court to ascertain the cost of the vessel and in the same vein, there was no proof to show that the vessel makes $7,000 per day through charter services.