Facts:

The appellant is a company and owner of 10 (Ten) fully developed and serviced coastline flats at Southport Harbour, Victoria Island, Lagos State. The respondent is a dredging company and the owner of the vessels the MV “Breughel” and MV “Congo River”. The respondent was employed by Eko Atlantic City to dredge the Kuramo Waters. The appellant commenced an action in rem against the vessels of the respondent at the Federal High Court, Lagos division alleging several infractions bordering on damage to its property as a result of the dredging activities Hundred Million Naira) as principal damages and another N3,000,000,000.00 (Three Billion Naira) as general damages for the damage done to its property by the activities of the respondent’s vessels.
As a result of the suit, the vessels were arrested and detained and the respondent immediately took steps to ensure their release by posting a guarantee in the sum of N3,700,000,000.00 (Three Billion, Seven Hundred Million Naira) after which the matter was set down for trial. The respondent thereafter filed an originating summons at the same court to limit its liability. The suit was initiated in accordance with section 351 of the Nigerian Merchant Shipping Act 2007. The originating summons was contested by the appellant and after hearing the parties, the learned trial judge ruled in favour of the respondent limiting its liability and ordered the creation of a limitation fund in favour of the Respondent for alleged damage caused the Appellant’s property and any other party unknown to the court that may be affected by the respondent’s project and fixed the amount at $5,251,926.23 (Five Million, Two Hundred and Fifty one Thousand, Nine Hundred and Twenty six Dollars and Twenty Three cents) or its naira equivalent.
The appellant was dissatisfied with the ruling of the court and consequently filed a notice of appeal at the Court of Appeal, Lagos Division. One of the issues for determination is whether the learned trial judge was right in holding that the respondent was entitled to limit its liability as the appellant had failed to prove existence of conditions stipulated in section 354 of the Merchant Shipping Act.