Nimex Petroleum Ltd (appellant) entered into a contract for the transportation and supply of oil with Pinnacle Oil & Gas Ltd (respondent). The oil was to be carried on the Sea Tiger owned by the appellant. Following the non-fulfilment of this agreement, the respondent sought and obtained a provisional seizure of the MT Saphina for security, retention and payment of its claim. The appellant argued that the Saphina was not its property and asked for the seizure to be set aside. This application was refused. The appellant appealed. The Court of Appeal of Lomé rejected the appeal, finding that it was ill-founded, and holding that the provisional seizure of the Saphina was valid.

The first plea of ​​cassation was based on the ground that the Court of Appeal, in order to determine the owner of the ship, applied the provisions of the Arrest Convention 1952 instead of the provisions of arts 1147 and 1148 of the Civil Code.

Held: Appeal allowed. Judgment No 381/2013 issued on 18 December 2013 by the Lomé Court of Appeal set aside. Case referred back to the same court differently constituted for adjudication in accordance with the law.

The legal issue is whether the seizure of the Saphina was valid. In order to answer this question, the judgment under appeal held that the maritime character of the claim pursued by the respondent against the appellant is not in doubt; that the documents of the file, in particular the amicable settlement intervened between the parts before the High Court of Justice of Accra on 13 February 2013 are proof of this; that the question to be answered by the court is whether the owner of the seized ship, Saphina, is the same as the owner of the Sea Tiger to which the claim relates.

It was on the basis of this assertion of the maritime character of the claim that the appellate judges applied the criteria of the Arrest Convention 1952 according to which any plaintiff may seize either the ship to which the claim relates or any other ship belonging to the party who was, at the time when the maritime claim arose, the owner of the vessel to which the claim relates, and that provides that ships shall be deemed to be in the same ownership when all the shares therein are owned by the same person or persons, to confirm its authority for the seizure.

However, in the amicable settlement between the parties before the High Court of Accra on 11 February 2013 the judge dismissed the claim and removed the orders on the grounds that the respondent's claim did not fall under maritime law but a failure in the conduct of the business relationship with the appellant and that the respondent was entitled to sue the appellant at the appellant's place of business or where its head office is located. It follows that the appeal is well-founded.