Just as in most jurisdictions, an action-in-rem may be brought against a ship to enforce maritime claims in accordance with provisions of Nigeria’s Admiralty Jurisdiction Act (“AJA”) and the Admiralty Jurisdiction Procedure Rules 2011 (“AJPR”). The arrest of a vessel is usually enforced through a court order and is mainly to obtain a pre-judgment security to satisfy the claims of the plaintiff after the trial of his claim in court. However, there are instances where a vessel is arrested on frivolous grounds or instances where the claim is founded on a principle that is ultimately rejected on its merits by the court or an action which has been abandoned by the claimant. In these scenarios, will a claimant be liable to pay compensation for the arrest of ship and other expenses incurred as a result of the wrongful arrest of the ship?
The law in Nigeria
A careful review of the AJA and the AJPR shows that the law makes provision for the compensation of a defendant whose vessel was wrongfully arrested.
Section 13 of the AJA states that:
(1) Where, in relation to a proceeding commenced under this Act-
- a party unreasonably and without good cause-
- demands excessive security in relation to the proceeding; or
- obtains the arrest of a ship or other property under this Act; or
- a party or other person unreasonably and without good cause fails to give a consent required under this Act for the release from arrest of a ship or other property,
the party or person shall be liable in damages to a party to the proceeding, being a party or person who has suffered loss or damage as a direct result.
It is clear from the above provision that the law in Nigeria allows a defendant to bring an action for wrongful arrest in three (3) instances:
- Where the security demanded is excessive;
- Where the arrest if the ship was without good cause and unreasonable;
- Where the plaintiff fails to give consent required for the release of the vessel (this may be in instances after the court have order release or the plaintiff have posted security).
Order 11 (3b) of the AJPR also stipulates that an action for wrongful arrest may be initiated against a plaintiff and the Court shall award costs, damages, demurrage and expenses against the plaintiff where it is satisfied that the arrest was occasioned unreasonably and without good cause. Order 11(4) further stipulates that such application can be made orally after judgment in relation to the substantive suit is read.
A departure from common law?
Under the common law, a shipowner will only be able to recover compensation for wrongful arrest where he can show that the arrest has been obtained by mala fides or crassa negligentia (which means malice or gross negligence). This test derives from the speech of The Right Honourable T. Pemberton Leigh in the Privy Council in the “Evangelismos” (1858) 12 Moore, 35. Although, it is not clear the rationale for the test in Evangelismos, however, some have suggested that the rule is founded upon the analysis of the nature of the arrest procedure. In particular, it is related to the arrest of a suspected criminal by law enforcement agents. It is perhaps an important principle of public policy involved, that, the mere fact that the defendant is ultimately found not guilty should not of itself expose the police authorities to claims for wrongful arrest except the defendant can show bad faith (mala fides). The underlying reason is to protect law enforcement agencies for a claim for damages.
Notwithstanding the above suggested rationale, the rule that a ship owner must show mala fides is a high threshold that may be onerous to prove and simply idealistic.
In Nigeria, although there are no case laws where a shipowner has successfully obtained compensation for wrongful arrest, it appears that the position of law in relation to wrongful arrest is different. The above-cited provisions in respect of wrongful arrest uses the words “unreasonably and without good cause”. Correspondingly, it stipulates that wrongful arrest proceedings can be initiated against a person who obtains an arrest unreasonably and without good cause. This implies that a person who intends to institute a wrongful arrest proceeding must prove that the arrest is “unreasonable and without good cause”
The Supreme Court in EMAVWORHE ETAJATA & ORS V. PETER IGBINI OLOGBO & ANOR (2007) LPELR-1171(SC) has defined the word reasonable to mean “fair, proper, moderate, and suitable”. Accordingly, the word “unreasonable” may be interpreted to mean unfair, improper, immoderate and unsuitable. Also in IKENTA BEST (NIG) LTD V A. G. RIVERS STATE (2008) 6 NWLR (Pt.1084) 612 at 642, Tobi JSC, defined good cause to mean "good reason". Thus, “without good cause” can simply be interpreted to mean lack of good reason.
Flowing from the above interpretation, it seems that h proving unreasonableness and lack of good cause is less herculean than proving mala fides or crassa negligentia. It will be accurate to say that the Nigerian law has since departed from the principle that a shipowner whose vessel was arrested must prove mala fides or crassa negligentia.
Considering that the onus to prove wrongful arrest is not as onerous as it is under Common Law or in England, where an action was initiated unreasonably or without good cause, a ship owner may take steps to recover compensation suffered as a result of the arrest from a competent court of law.