Appeal Court upturns N6.8bn judgment against NIMASA
- Hensmor heads for Supreme Court
The Lagos division of the Court of Appeal on Friday upturned the judgment of a Federal High Court in Lagos, which ordered the Nigerian Maritime Administration and safety Agency (NIMASA) to pay an indigenous shipping company, Hensmor Nigeria Limited, N6.8 billion.
On December 2, 2011; Justice Okon Abang of the Federal High Court had awarded the sum in favour of Hensmor over alleged unlawful detention of its vessel named MT Aigbomen by NIMASA.
Hensmor had alleged in its statement of claim before the lower court that its vessel, MT Aigbomen was illegally detained by NIMASA, while 63,000 metric tons of dual purpose kerosine stored in it, was stolen.
It further alleged that all administrative efforts made to secure the release of the vessel proved abortive hence the need for the suit.
NIMASA had, in its statement of defence, stated that on the 14th of March, 2006 its Harbour master called to inform the agency that MT Aigbomen was not seaworthy, 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 seaworthiness had expired since 2005.
NIMASA stated that the ship was promptly detained pending the time all the defects would be rectified.
However, NIMASA stressed that rather than put machinery in motion to do the right thing, Hensmor rushed to the lower court.
In a unanimous decision of three panel of judges, the appellate court, on Friday, set aside the judgment of Justice Abang and upheld the appeal of NIMASA, on the ground 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 adduced for tendering it through the sole witness of the company, whose evidence under cross examination was base 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.
The appellate court also said that 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.
The appelate court also affirmed the power of NIMASA to detain vessels in accordance with the provisions of the Merchant Shipping Act 2007.
Meanwhile, Hensmor Nigeria Limited has filed an appeal at the Supreme Court against the Appeal Court judgment.
Hensmor urged the apex court to retain the judgement sum which is currently in the custody of the Deputy Chief Registrar of the Federal High court in a fixed deposit interest yielding account in First Bank.
The firm stated that the application became necessary in the likely event of a successful appeal pending the hearing and determination of its appeal at the Supreme Court. It argued that it may not be able to recover the judgement sum from NIMASA if the money if the money is released to the agency.