The 1999 Constitution gives the Federal High Court jurisdiction over all admiralty matters.(1) Thus, the chief judge of the Federal High Court has the power to make procedural rules on admiralty matters.(2) The new Admiralty Jurisdiction Procedure Rules came into force on March 14 2011, repealing the previous rules of 1993.(3) The main objectives of the new rules are to adapt to the current needs of the shipping industry and to align with modern shipping practices around the world. Some of the new provisions are similar to Part 61 of the United Kingdom's Civil Procedure Rules and the UK Practice Directions (61/2010). Six orders have been added; therefore, the new rules now contain 23 orders.
Arrest of ship
Under the old rules, actions against ships in rem could be instituted only when the ship was within the court's jurisdiction.(4) The new rules allow actions to be instituted when the ship is within the court's jurisdiction or is expected to arrive in the court's jurisdiction within three days of filing the application.
A warrant of arrest is now valid for six months and renewable for a further six months (previously the warrant was valid for six months only).(5) Under the old rules, the warrant of arrest could be executed by the admiralty marshal only, but this can now be executed by either the admiralty marshal or his or her substitute.(6)
Commencement of action
A claimant is no longer required to front load all of the court documents before a writ is issued by the admiralty marshall. The claimant now has seven days from the date of filing the writ of summons within which to file witness statements.(7)
Change of ownership
Where the beneficial ownership of the ship or other property to be arrested has changed since the issuance of the writ of summons due to a judicial sale or disposal by any court excising admiralty jurisdiction, a warrant of arrest may not be issued.(8) However, the new owner must inform the Federal High Court of the change in ownership in order to prevent the arrest.(9)
Before a warrant of arrest is issued, the claimant must now conduct a search in the caveat book(10) in order to determine whether a caveat against arrest has been put into force. Claimants will no longer be issued warrants of arrest unless there is proof that a search has been conducted and whether a caveat exists has been determined. The old rules gave the caveator 14 days from the date of being served to appear to the suit;(11) this has been amended under the new rules to three days.(12) Where a ship is under arrest, the new rules now provide for a caveat against release;(13) on providing an undertaking in damages, a person may file a caveat against the release from arrest of the ship in court so as to allow further arrest of the ship.
Claimants are now liable to pay between N100,000 and N500,000 ($650 to $3,150) to the admiralty marshal as deposit for his or her expenses in relation to keeping custody of the arrested ship; the admiralty marshal is permitted to make further fortnightly demands for payment on account of those expenses.(14) This is a huge increase from the N5,000 ($32) charged under the old rules, but the former provision was not in line with current market realities. The admiralty marshal is also entitled to 2% of the proceeds of the sale of the ship as expenses, and is required to file a return of receipts and expenditures to the court seven working days after the ship is released.(15)
Release from arrest
The new rules allow release applications to be heard within three days of the date of filing and service.(16) In some instances, oral applications can be made to a judge in chambers by a claimant (on whose application a ship was arrested) as consent to the release of the ship, followed by a notice of discontinuance. Under the old rules, applications for consent were accepted in writing only.(17)
Reparation for needless arrest
In a bid to discourage unwarranted arrests, the new rules allow a court to hold claimants which arrest a ship on insufficient or improbable grounds liable. It may, on the application of the defendant, further request that such claimant pay damages in such amount as the court deems reasonable compensation for any loss, injury or expenses suffered by the defendant as a result of the arrest.(18) This is intended to deter claimants from instituting needless arrests and is a welcome change from the old rules, which set a N20,000 ($125) maximum compensation level for instituting needless arrests.(19)
Valuation and sale
The new rules provide a solution to port congestion and to prevent ships from littering the waterways. Arrested ships can now be sold six months after their arrest if the ship owner fails to provide bail for release.(20) This will free up space in the ports for the detention of arrested ships.
It is hoped that the new rules will improve maritime practice in Nigeria, discourage frivolous applications for arrest and keep the practice up to date with the current realties of the world's shipping industry. The new rules have been modelled along the lines of maritime jurisdictions such as England and Wales.
For further information on this topic please contact Mojisola Agunbiade at Bloomfield by telephone (+234 1 791 0702), fax (+234 1 4960 4666) or email ([email protected]).
(1) Section 251 of the Constitution, C23 LFN 2004.
(2) Section 254 of the Constitution.
(3) Order 1, Rules 1 and 2 of the 2011 Admiralty Jurisdiction Procedure Rules.
(4) Order 7, Rule 1 of the 2011 Admiralty Jurisdiction Procedure Rules.
(5) Order 7, Rule 3 of the 2011 Admiralty Jurisdiction Procedure Rules.
(6) Order 7, Rule 4 of the 2011 Admiralty Jurisdiction Procedure Rules.
(7) Order 3, Rule 3(2) of the 2011 Admiralty Jurisdiction Procedure Rules.
(8) Order 7, Rule 1(4) of the 2011 Admiralty Jurisdiction Procedure Rules.
(9) Afun Adedoyin, "Ship Arrest - Recent Developments in Nigerian Arrest Law'", eighth members meeting at www.shipsarrested.com.
(10) Order 7, Rule 1(2) of the 2011 Admiralty Jurisdiction Procedure Rules.
(11) Order 6 of the 1993 Admiralty Jurisdiction Procedure Rules.
(12) Order 8, Rule 2 of the 2011 Admiralty Jurisdiction Procedure Rules.
(13) Order 8, Rule 6 of the 2011 Admiralty Jurisdiction Procedure Rules.
(14) Order 9, Rule 2 of the 2011 Admiralty Jurisdiction Procedure Rules.
(16) Order 10, Rule 4 of the 2011 Admiralty Jurisdiction Procedure Rules.
(17) Order 10, Rule 2 of the 2011 Admiralty Jurisdiction Procedure Rules.
(19) Order 11, Rule 2 of the 1993 Admiralty Jurisdiction Procedure Rules.
(20) Order 9, Rule 6(2) of the 2011 Admiralty Jurisdiction Procedure Rules.