Introduction
A ship is a vessel constructed for water transportation. A vessel/ ship may be a barge, drilling rig, a hovercraft, an offshore industry mobile unit and even a vessel that has sunk or is stranded. However, it does not include a vessel under construction that has not been launched. The arrest of shipping means any the detention of a ship by order of a court to secure a maritime claim but does not include the seizure of a ship in execution or satisfaction of a judgment or other enforceable instrument. Thus, a ship can be arrested to obtain prejudgment security for a claim. This ensures that a judgment given in favour of an arrester can be secured through some guarantee acceptable to both the court and the arrester in place of the vessel or “res”.
The Admiralty Jurisdiction Act (AJA) and the Admiralty Jurisdiction Procedure Rules 2011 (ACJPR) constitute the legal framework for admiralty matters in Nigeria, with the Federal High Court as the court with the requisite jurisdiction on admiralty jurisdiction, being the court of first instance in admiralty matters.
The Procedure for Ship Arrest
By Order 3 rule 3 AJPR 2011, the procedure of ship arrest is an invocation of the court’s in rem jurisdiction. An action in rem may be commenced in the judicial division of the court in which the res may be found or is expected to arrive within three (3) days. The Court in the Vessel MV SiriusB v. MSSCI Ltd (2017) 10 NWLR (Pt.1572) 135 held that the essence of a Pre-judgment arrest of a vessel in admiralty proceedings is usually to prevent the removal of a particular vessel from jurisdiction, which may be used in satisfaction of a possible judgment in the Plaintiff’s favour, or to compel in lieu, the provision of security commensurate in value to the amount claimed or sometimes the value of the particular vessel.
An action in rem is commenced by a writ of summons in Form 1 which shall be accompanied by a Statement of Claim and a copy of every document to be relied upon at the trial. Plaintiff shall within 7 days of filing the writ of summons, file written statements of his witnesses which shall be adopted on oath at the trial. According to Order 3 Rule 3(2) AJPR 2011, which applies to in rem actions, the witness’ statements need not be on oath. They are to be adopted on oath at the trial. The witness therefore need not be in Nigeria at the time the action in rem is filed. It should be noted that apart from the processes to be filed by a Plaintiff commencing an admiralty action whether in rem or in personam, the AJPR 2011 is silent on the way the Defendant is to react to the action. To that extent, therefore, it stands to reason that provisions of the Federal High
(Court Civil Procedure) Rules, 2019 would apply to such instance, the Federal High Court being the Court with the jurisdiction to hear admiralty matters.
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The writ of summons in a proceeding commenced as an action in rem shall specify a relevant person in relation to the maritime claim sued as a defendant and shall be in Form 1 in the schedule to the Rules. The specification may be by reference to the ownership of or other relevant relationship with the ship or other property concerned. Consequently, the writ of summons in a proceeding commenced as an action in rem against a ship or other property shall identify the ship or other property. This is because an action in rem is against a thing, in this case, a ship. There is thus a distinction between action in rem and an action in personam. See Mv Mustafa V Afro Asian Impex Ltd (2002) 14 NWLR (PT 787)395. It is important to note that where the claim is against a sister-ship, the ship in relation to which it is a sister-ship, shall also be identified in the initiating process.
As stated earlier, the AJPR 2011 makes it mandatory for an arrestor to search the caveat register. If a Plaintiff proceeds with the arrest without doing so, he stands the risk of facing a claim for unlawful arrest. The failure to search the caveat register and file consequential affidavit evidence of such search is clear evidence of crassa negligentia or, at worst, evidence of mala fide. Where a Plaintiff finds that there is a caveat against arrest in force, then it is his duty to disclose that fact to the Court and urge the court to order an arrest in the face of the caveat by putting forward arguments on same.
A ship or other property under arrest remains so from the time the warrant of arrest is executed until it is lawfully released from arrest or sold by the order of the court. In order to mitigate colossal damage/ loss and costs incurred including port charges/ dues, crew wages and maintenance by running the ship as a storage and carriage facility and loss of earning/ income whilst under arrest, delayed delivery or sale of the cargo, loss of business/ employment of the vessel, a prudent owner of or an interested person in a ship or other property under arrest, is anxious to have it quickly released from arrest (so that the ship can continue with its voyage and not be sold and the property may be applied as he had wished).
An order of arrest of a ship or other property is not a final decision of the court in the in-rem action and as such when either of the prescribed conditions through a written application is met the arrest will be vacated:
(a) an amount equal to (i) the amount claimed; or the value of the ship or property, whichever is the less (ii), has been paid into court; or
(b) a bail bond for an amount equal to (i) the amount claimed; or the value of the ship or property, whichever is the less (ii), has been filed in the proceedings.
Judicial Sale of A Ship
The various vessels that litter the territorial waters of Nigeria as a result of the failure of various ship owners to provide bail for the release of vessels under arrest or entering an appearance in a suit, Order 9, Rule 6(2) of the Rules empower the court on the application of the arrestor or other interested party, to order the sale of the ship where the bail or sufficient security has not been provided six (6) months after the date of arrest. The ship is to be sold by the Admiralty Marshal and the proceeds of sale paid into an interest yielding fixed deposit account in the name of the Admiralty Marshal pending further orders of the court.
Conclusion & Recommendation
Shipping is central to the economy of Nigeria, which is largely dependent on oil and gas resources, which are in the main carried by sea. An efficient and effective Admiralty Court system is therefore an added impetus towards achieving a viable admiralty practise in Nigeria especially with relation to the practice of arrest and release of vessels. The innovations in the AJPR 2011 are a welcome development – especially as they relate to the arrest of ships in Nigeria.
It is recommended that there is an urgent need for a distinct and reputable Admiralty Registry in Nigeria, separate from the regular court registry, which should be accessible in the minimum, to all the divisions of the court where seaports are located, due to the enormous duties of the Admiralty Marshall, to ensure an efficient and effective discharge of the enormous onerous duties of the Admiralty Marshall. There should also be continuous legal education and training of all the relevant personnel and stakeholders involved in admiralty proceedings and practice to ensure an efficient and effective admiralty practice in Nigeria.
Emeka Opara is a Senior Associate at Kenna Partners
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