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 Learned senior counsel argued that the judgment of the trial court was speculative, inconsistent and contradictory and therefore rightly set aside by the lower court. He argued that having held that the 2nd and 3rd Respondents were responsible for the Appellants’ detention, it was contradictory for the learned trial judge to later hold that it was the Respondents who detained them. He submitted that it was not the Appellants’ case that the Respondents had a duty, legal or contractual, to supply them with food, water, bunkers etc., and therefore there could not be a valid finding of denial of these items without proof of a duty to so provide. He submitted that there was no finding that the positioning of the Respondents’ platform behind and in front of the vessel constituted the act of detention complained of and that in any event Exhibits GO1-G095 were proof that the vessel received supplies. He observed that there was no finding that any act of the Respondents instigated the detention of the vessel. He also submitted that there was no evidence of inhuman treatment or fear of enemy attack. He contended that the Appellants failed to refer to any evidence to support the trial court’s findings. Learned senior counsel submitted that it is wrong for the Appellants to contend that their averments were uncontroverted, having regard to the fact that the Respondents strongly denied the Appellants’ assertions in their counter-affidavits. He submitted that having regard to its finding that it was the seizure of the Appellants’ passports and other documents by the 2nd and 3rd Respondents (the Immigration Authority) that constituted the breach of their rights, the lower court was right when it narrowed down the issue for determination to a resolution of the question whether the Respondents caused the Appellants to be detained by impounding their passports and other travel documents. He submitted that the subsequent finding of the learned trial judge in the same ruling that the 4th and 5th Respondents (1st and 2nd Respondents in this appeal) had breached the Appellants’ rights is inconsistent. He submitted that the court below was right when it held that the conclusion was reached without a proper appraisal of the affidavit evidence before it. He submitted that there was no appeal against the finding of the trial court that the Nigerian Immigration Service impounded the Appellants’ travel documents and were therefore responsible for their detention. He was of the view that the lower court rightly held that there was no basis for laying blame on the Respondents in the circumstances. Referring to the invoices, Exhibits G01-G095, admitted before the lower court as fresh evidence, learned senior counsel submitted that the said documents, showing supplies made to the vessel during the period that the Appellants’ claimed the Respondents denied access to it, knocked the bottom off their case. He noted that based on these documents the lower court rightly found that all essential supplies were made to and received by the vessel during the period complained of. He argued that the Appellants have failed to show that the finding is perverse. He urged the court to resolve this issue against the Appellants. In order to determine this issue, it is necessary to appreciate the complaint that was made before the trial court. It is in Prayer (b) that the allegation of a breach of the Appellants’ fundamental rights to personal liberty by wrongful detention is made and it is premised upon the seizure of their passports and seamen’s passbooks. Prayer (c) is a separate relief for the supply of necessaries to the ship. In the supporting affidavit it is averred that the 2nd and 3rd Respondents (the Minister of Internal Affairs and the Comptroller of Immigrations) demanded and impounded the Appellants’ international passports andseamen’s passbooks. It is further averred that the 4th Defendant (1st Respondent in this appeal) in connivance with the Comptroller of Immigration and the 2nd Respondent herein had been using extra-judicial means to prevent the ship from sailing, had prevented the crew from disembarking and had denied the Protective Agents (Gulf Agency Company) access to the ship to supply food, water, bunkers, etc. to the crew. The 2nd and 3rdRespondents (the Immigration Authority) denied preventing the Appellants from disembarking from the ship. They referred to the Appellants’ supporting affidavit wherein they averred that they voluntarily surrendered their documents through the 4th and 5thRespondents. They averred that all they needed to do was to apply for shore leave, which they had not done. They also averred that there was no time the Appellants applied for the supply of food,water, bunkers, etc. and the request was refused. The 4th and 5thRespondents (the 1st and 2nd Respondents in this appeal) also filed a counter-affidavit denying the Appellants’ allegations. Contrary to the Appellants’ assertions, the averments in their supporting affidavit were stoutly controverted by the Respondents. The main issues before the court were: i. Who was responsible for the Appellants’detention on board the vessel; and ii. Whether the Respondents denied the Appellants access to food, water, bunkers, etc. The Respondents herein are clearly not agents or privies of the Nigerian Immigration Service. It is also pertinent to note that there was no appeal against this crucial finding of the trial court. It is settled law that a decision of a court of competent jurisdiction not appealed against remains valid,subsisting and binding between the parties and is presumed to be acceptable to them. See: Iyoho v. Effiong (2007) 4S.C. (Pt. III) 90; S.P.D.C. Nig. Ltd. v. XM, Federal Ltd.Anor. (2006) 7 S.C. (Pt. II) 27; Adejobi& Anor. v. The State (2011) 6-7 S.C. (Pt. III) 65. It therefore means that the issue as to who was responsible for the Appellants’detention aboard the ship had been settled. As observed earlier, the issue as to who was responsible for the Appellants’ detention aboard the M/V Dubai Valour was settled by the decision of the trial court against which there is no appeal. On the issue as to whether there was denial of access to food and water, learned senior counsel for the Appellants referred to Paragraph 18 of the Appellants’ verifying affidavit and submitted that some of the exhibits attached thereto, such as: (i) letters from Gulf Agency Company (Protective Agent to the vessel) dated 19/ 1/98; (ii) a letter from the suppliers, Keyn Ben Nig. Ltd. Dated 29/1/98; (iii) e-mail message from Oasis Ship Management dated 22/1/98; and (iv) fax messages from the Master of the vessel dated 26/1/98 and 3/2/98 respectively, clearly point to the Respondents’ culpability and that the lower court would not have reached the conclusion it did had it properly averted its mind thereto. He maintained that the facts found and relied upon by the trial court were sufficiently proved by the Appellants and uncontroverted by the Respondents. Firstly, it would not be correct to state that the facts relied upon by the Appellants were uncontroverted by the Respondents. In the judgment appealed against, the lower court not only reproduced Paragraphs 11-21 of the Appellants’ supporting affidavit but also reproduced Paragraphs 11-15 of the Respondents’ counter-affidavit, which specifically denied the averments in the aforesaid paragraphs, along with Paragraph 4 of the Respondents’ affidavit to adduce further evidence to which Exhibits GO1-G095 were attached. As rightly found by the court below, Exhibits GO1-G095 cover the period from August 1997 when the vessel was detained by an order of the Federal High Court, Benin up to and including February 1998. They consist of invoices showing the supply of food, water, medical supplies and medical bills. These exhibits clearly debunked the Appellants’ claim that the Respondents refused to permit any access to the ship. In arguing this appeal before us, the Appellants have not shown any specific period not covered by the exhibits. It is settled law that an appellate court would not interfere with the judgment of a lower court unless it is shown that the decision is perverse; or that it is not based on a proper appraisal of the evidence;or there is a misapplication of the law to findings of fact properly made; or that there has been a miscarriage of justice occasioned by an error in procedural or substantive law. See: Aboseldehyde Laboratories Plc. v.Union Merchant Bank Ltd. & Anor. (2013) 2-3 S.C. (Pt. V)155; In the instant case, I am satisfied that the conclusion reached by the lower court was based on a proper appraisal of the evidence before it. No cogent reason has been advanced by the Appellant to warrant interference with those findings in this regard. This issue is accordingly resolved against the Appellants. Issue 2 Does the judgment of the Court of Appeal in England on the same issue, namely whether the Respondents were guilty or not of false/wrongful imprisonment and/or detention of the Appellants hereto not constitute ‘res judicata’ or issue estoppel as between the parties hereto and/or their privies in the circumstances of the case?]]>