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Decision of a court is founded on ratio decidendi – Part 2

Court

Court

IN THE SUPREME COURT OF NIGERIA
HOLDEN ATABUJA
ON FRIDAY, THE 17TH DAY OF APRIL, 2015
BEFORE THEIR LORDSHIPS

IBRAHIM T. MUHAMMAD JUSTICE, SUPREME COURT
MUHAMMADS. MUNTAKA-COOMASSIE JUSTICE, SUPREME COURT
MARY U. PETER-ODILI JUSTICE, SUPREME COURT
KUDIRAT M. O. KEKERE-EKUN JUSTICE, SUPREME COURT
CHIMA C. NWEZE JUSTICE, SUPREME COURT

SC. 42/2005

BETWEEN:
1. CAPTAIN SHULGIN OLEKSANDR
2. TYRKIN ANATOLIY APPELLANTS
3. COLUB ANALOLIY
4. VLASYUK GENNADIY
5. TIMCHENKO VOLODYMYR

AND

1. LONESTAR DRILLING COMPANY LTD RESPONDENTS
2. CHIEF H.I.S. IDISI

I had cause, in a recent decision of this court in Ominiyi v. Alabi (2015) 2 S.C. (Pt. II) 92 to explain the distinction between “obiter dictum” and “ratio decidendi’ as follows:

“The law is settled that issues for determination must be distilled from the grounds of appeal, which in turn must be predicated upon the ratio decidendi of the decision of the court appealed against. See: Honika Sawmill (Nig.) Ltd. v. Hoff (1994) 2 NWLR (Pt. 326) 252; Briggs v. C.L.O.R.S.N. (2005) 12 NWLR (Pt. 938) 59 at 90 F-H; Dalek
Nig. Ltd. v. OMPADEC (2007) 2 S.C. 305.

The ratio decidendi of a case is the principle or rule of law upon which a court’s decision is founded. See: Black’s Law Dictionary (8 thedition); also: A.I.C. Ltd. v. NNPC (2005) 5 S.C. (Pt. II) 60; Ajibola v. Ajadi (2004) 14 NWLR (Pt. 892) 14. On the other hand obiter dicta or obiter dictum means, ‘Something said in passing’. It is a judicial comment made while delivering a judicial opinion, but one that does not embody the decision of the court. See: Black’s Law Dictionary (supra) and A.I.C. Ltd. v. NNPC (supra); Akibu v. Oduntan (1999) 2 S.C. 77; Odessa v. F.R.N. (No. 2) (2005) 10 NWLR (Pt. 934) 528 at 555 B CA.”

Grounds 3 and 4 of the grounds of appeal, shorn of their particulars read thus:
Ground 3: The learned justices of theCourt of Appeal erred in law when they held that the initiation of the human right saction in Lagos was wrongful.

Ground 4: The learned justices of the Court of Appeal erred in law when they held that ‘V there was any detention of the crew members (here the Appellants)it was by the force of order of the Court of Law” and not by the Respondents.

I have carefully examined the judgment of the court below,particularly at Page 817 of Volume II of the record. One of the issues in contention before the court was whether the decision of the Court of Appeal of England in GulfAzoy Shipping Co. Ltd. & Anor. v. Idisi & Ors. (2002) 1Lloyd’s Reports 727, which held that the presentRespondents were responsible for the detention of them crew aboard M/V Dubai Valour, constitutes res judicataas between the parties to this appeal. The court held that the plea was unsustainable.

It is clear from the portion of the judgment reproduced above that the remark regarding the form of action instituted by the Cross-Appellants at the trial court that led to the appeal was a passing remark that had no bearing on the issues before the court or the final decision reached therein. The remark amounted to obiter dictum,which could not form the basis of a ground of appeal.

Ground 3 of the notice of appeal and Issue 2 formulated thereon are therefore incompetent and accordingly struck out.

On the other hand, the view of the court that theAppellants were detained by “the force of order of a court of law”, which formed the basis of the complaint in Ground4 was not a mere passing remark, as the final decision of, the court was based partly on its belief that the Appellants’ detention was based on a court order. Ground 4 and Issue1 formulated from Grounds 1, 4, 6 and 7 are therefore competent.

With regard to Grounds 6, 7, 8 and 9 of the grounds of appeal, the law is settled that particulars of error alleged in a ground of appeal are intended to highlight thecomplaint against the judgment on appeal. They are the specification of the error or misdirection complained ofin order to demonstrate how the complaint will becanvassed in an attempt to reveal the flaw in a particular portion of the judgment. Particulars must not be independent of the ground of appeal but ancillary to it.See: Globe Fishing Ind. Ltd. v. Coker (1990) 11-12 S.C.80; Osasona v. Ajayi (2004) 5 S.C. (Pt. I) 88; Diamond Bank Ltd. v. P.I.C. Co. Ltd. (2009) 12 S.C. (Pt. II) 159.

I have carefully examined the particulars ofGrounds 6, 7, 8 & 9. There is no doubt that the particulars are prolix, unwieldy and argumentative. The particulars of a ground of appeal are expected to highlight briefly the misdirection or error in law complained of. The merit of the appeal should not be argued under the guise of supplying particulars. This is because an appeal is argued not on the grounds of appeal but on the basis of issues formulated therefrom, which may encompass more than one ground of appeal.

Thus, notwithstanding the inelegant drafting of the particulars of Grounds 6, 7, 8 & 9, the Respondents and indeed the court are not in any doubt as to what theAppellants’ complaints are. I hold that the particulars of Grounds 6, 7, 8 & 9 are in substantial compliance with the requirement of the law and the said grounds are therefore competent.

In conclusion, the preliminary objection is sustained in respect of Ground 3 and Issue 2 formulated thereon only. The said ground and issue are accordingly struck out. The objection fails in respect of Grounds 6, 7, 8 and 9. The said grounds are competent. It follows that Issues 1, 3, 4 and 5 are competent and shall be considered on their merits. They are hereby numbered as Issues 1, 2, 3 and 4. Issue 1Whether the Court of Appeal was right to have exonerated the Respondents herein (4th & 5th Respondents at the trial court) from responsibility for breach of the Appellants’ fundamental rights and the illegal and/or unlawful detention of the Appellants in their vessel, “Dubai Valour” for over twenty (20) months?

In arguing this issue, learned senior counsel for the Appellants, Femi Atoyebi, SAN, submitted that the lower court, in coming to the conclusion that the ruling of the learned trial.

Judge did not reflect a thorough appraisal of the affidavit evidence before the court, overlooked certain letters, e-mails and fax messages attached as exhibits to the affidavits before the court,which he contends clearly point to the culpability of the Respondents in the breach of the Appellants’ fundamental rights. He submitted that the findings made by the learned trial judge flowed directly from the evidence and materials placed before the court. He also submitted that the facts found and relied upon by the trial court were sufficiently proved by the Appellants and uncontroverted by the Respondents. He maintained that there was abundant evidence to prove that the Respondents did everything in their power to frustrate the evacuation or disembarkation of the crew from the vessel and access thereto by the owners.

Learned senior counsel argued that the filing of a motion ex-parte to shift the vessel to the Respondents’ backyard, and the positioning of drilling platforms in front of and behind it, was a clear indication of an intention to secure exclusive custody and control of the vessel and crew. He maintained further that the faxes from the master of the vessel about the conditions on board constituted credible evidence of the fact that they were denied necessary supplies. He contended that the letter from an independent company whose tugboat was hired but was denied access to the vessel by the Respondents also constituted credible evidence upon which the trial court rightly relied. He referred to a letter written by Union Freight Forwarders Ltd. to the Nigerian Immigration Service (Exhibit A1 at Pages159-160 of the record) which mentioned a court order to arrest the vessel and a subsequent order to shift the vessel; its request to the master of the vessel to submit all travelling documents for revalidation with the Immigration Service (which the master failed to produce); and its request for the dispatch of immigration officers to the ship for security purposes. He argued that the only way Union Freight Forwarders Ltd., which was not a party to the suit, could have known about the court orders, which were obtained ex-parte, was through the Respondents.

He referred to Exhibits GO1-G095 – invoices for the supply of water, food and other necessities tendered by the owners of the vessel before the High Court of Justice in England, which were admitted by the lower court as fresh evidence. He submitted that the invoices cover a period of only eight months out of the entire period spent by the Appellants inside the vessel and could therefore not absolve the Respondents of responsibility for the flagrant breach of their rights. He submitted that it was not the Appellants’ case that they were not supplied with food for over eight months but that there were times when the Respondents made it impossible to deliver food, water and other necessities to the crew.

He referred to the reliefs sought by the Appellants in their statement of facts and reliefs at the trial court and submitted that a detention, which infringes on the Appellants’ right to dignity, which includes harassing, threatening or taking any step that would threaten and/or jeopardize that right, would be unconstitutional.

He submitted that the right to dignity of the human person can be subsumed in the right to personal liberty and urged the court to hold that denying the Appellants access to the basic necessities of life constitutes a flagrant abuse of their fundamental rights.

He referred to: Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt. 200)708 at 765 & 778; Fawehinmi v. Abacha (1996) 5 NWLR (Pt.447) 198 CA.

In reply to the above submissions, learned senior counsel for the Respondents submitted that the case of the Appellants as set out in their motion on notice a Pages 126-127 of the record was predicated on the allegation that their passports and seamen’s passbooks were impounded by the Respondents, which prevented them from disembarking from the vessel.




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