Posted by Jefferson Mongulo | 1 April 2014 | 4,797 times
The recent overhauling of Nigeria’s judicial system is quite commendable, and is no doubt bringing sanity to the judiciary and succor to the oppressed. In the world over, the judiciary is the arbiter and believed to be the last hope of every individual, group or corporate body whose rights are infringed upon.
As a business man, who has interest in doing business in Nigeria in the shipping industry, I have been following up the judicial tussle between a Nigerian shipping and oil company, Hensmor, and Nigerian government agency, NIMASA, through Nigerian newspaper reports.
I am prompted to write this piece due to the recent court ruling in favour of NIMASA. I felt worried when I read the judgment of Nigeria’s Court of Appeal which ruled on March 14, 2014, in favour of the government agency.
While I do not possess the right to fault the ruling of Nigeria’s learned Judge since I am not directly involved, yet my worry is based on few points I observed were an oversight in the ruling. My reaction is stemmed from my strong desire to do business in Nigeria; and if an indigenous Nigerian company is treated in a manner that sends wrong signals to foreign businessmen like us, then we will be scared of getting justice in Nigeria, should our rights be infringed upon.
From newspaper reports, it is to my knowledge that Hensmor dragged NIMASA to court over an alleged illegal detention of Hensmor vessel, and the legal battle has lingered since 2006 when Hensmor’s vessel was detained in March 2006.
A federal high court of Nigeria in Lagos had awarded cost against NIMASA in 2011, for illegal detention of Hensmor’s vessel. However, NIMASA went to Appeal Court to counter the High Court ruling.
From the judgment of March 14, 2014 by the Appeal Court, I observe that contrary to the decision of the Court of Appeal, the trial Judge did not rely on evidence of the respondent’s witness.
It is noteworthy that the appellant’s sole witness did not dispute the fact that he went on board the vessel, to have dialogue with the captain, which is one of the evidences established.
LAWFUL OR UNLAWFUL ACTION
Again, I observe that the respondent contended that detention on grounds of unseaworthiness is not the same as detention on grounds of expired certificate.
As a shipping businessman, I wish to politely observe (not faulting the Judge) that the Court of Appeal failed to examine the legal definition of unseaworthiness as contained in section 50 of the Merchant Shipping Act, therefore did not distinguish between detention on grounds of unseaworthiness and on grounds of expired certificate.
Painfully, the appellant’s witness admitted on oath that he did not conduct any test on the ship’s engine before concluding that the ship was unseaworthy.
I notice that the Court of Appeal admitted in its judgment that there was continued detention of Hensmor’s vessel by the appellant since March 2006. Again, the evidence led by the respondent in respect of special damages at the trial was not contradicted or challenged by the appellant. The respondent’s witness was not even cross-examined y the appellant’s counsel.
With these, if Hensmor has good lawyers, it will not stop at this but use the supposed flaws as evidence to push his case further and get redress. It is expedient for Nigeria’s Chief Justice to look at the grey areas and intervene, in order to uphold the earlier ruling of the Federal High Court and pay Hensmor its damages. In so doing, the Nigerian Government would have given us (foreign businessmen) the confidence to do business in Nigeria without fear of infringing on our businesses. Justice delayed is believed to be justice denied.
•Jefferson Mongulo is a South African shipping company Director in Pretoria.
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