Nigeria: Maritime Claims–Practices, Procedures And Enforcements

Last Updated: 16 February 2014
Article by B Ayorinde & Co

1] INTRODUCTION:

1.1] Litigation in our Courts in Nigeria today is known to be long-winding and it is not uncommon for cases to remain in Courts of first instance for 5years while the pursuit of a case up to the Supreme Court may take a period of about 10years. This state of affairs is detrimental not only to the litigant whose confidence in the judicial process may eventually wane but also to the litigation lawyer who earns his living from the practice of law as an advocate. The delays experienced in litigation can be most damaging where commercial disputes are involved. This is more so in maritime disputes litigation where parties to litigation are more than often local and international.

1.2] Our topic today is extremely wide and it would not be possible to completely discuss all the areas of Maritime Claims:- Practices, Procedures and Enforcements. In fact the Practices and Procedures of Maritime Claims in itself can be the subject matter of a whole text book while the Enforcement of Maritime Claims could be the subject to another text book. Our hope is therefore that with a reasonable grasp of the practice and procedure and enforcement of maritime claims, the maritime litigation lawyer will be able to employ his skills to speed up the achievement of his Client's claims and reduce the delays which may arise as a result of faulty and inadequate understanding of the process.

However, in order to make an attempt to touch on all the important aspects of the topic, I will restrict myself to the very cogent areas especially as they affect the practical aspects with emphasis on guiding the litigation lawyer through formulation of the claim, choice of forum, the procedure applicable and finally the enforcement of awards either at the end of litigation or wherever there is a pre-emptive remedy available.

2] WHAT ARE MARITIME CLAIMS?

2.1] Maritime Claims include:

  1. Claims relating to proprietary interest in a ship
  2. Any matter relating to a ship prior to 1991
  3. Any action on any law relating to a ship involving limitation of liability;
  4. Claims involving liability for Oil pollution damage
  5. Matters arising from shipping and navigation on any inland waters declared as national waterway
  6. Matters arising within a Federal Port including claims for loss of or damage to goods
  7. Any documentary credit arrangement involving importation and exportation of goods from and into Nigeria in a ship; the matters arising from the Constitutions and Powers of the Nigerian Ports Authority or the National Maritime Authority
  8. Criminal causes arising from any matter referred to above; and
  9. Any monetary or non-monetary agreement relating to carriage of goods by sea

2.2] Maritime Claims can be either proprietary or general in nature. SECTION 2[2] OF THE ADMIRALTY JURISDICTION DECREE NO. 59 OF 1991 describes Proprietary maritime claims as claims relating to:

  1. A Claim for possession of a ship
  2. Title or ownership of a ship or of any share therein
  3. Mortgage of a ship or of any share therein
  4. Mortgage of a ship freight

Proprietary Maritime Claims are those which directly affect the res or subject matter.

2.3] SECTION 2[3] of the same legislation describes General Maritime Claims as follows:

  1. Collision claims
  2. Damage to a ship
  3. Loss of life or personal injury caused by a ship
  4. Loss of or damage to goods carried by a ship
  5. Claims arising from agreements for carriage of goods or persons by a ship or for the use or hire or ship
  6. Salvage claims
  7. General average claims
  8. Pilotage
  9. Towage of a ship or water-borne aircraft
  10. Goods supplied or to be supplied to a ship
  11. Claims in respect of the construction of a ship
  12. Claims for Port charges or dues
  13. Claims arising out of bottomry
  14. Claim by a master, shipper, chatterer or agent in respect of disbursement on account of a ship
  15. Claims for Insurance premium due on a ship or its cargo
  16. Claims for wages and crewmen
  17. Claims for forfeiture or condemnation of a ship or goods carried thereon
  18. Claims for enforcement of arbitral awards in proprietary maritime claims; and
  19. Claims for interest in any Proprietary maritime claim

2.4] General Maritime Claims, unlike Proprietary maritime claims do not directly affect the res or subject matter but arise out of the operation of the res or any agreement relating to or connected with the res. The distinction between these two types of Maritime Claims is important and relevant to the litigant in determining the procedure to adopt in prosecuting and enforcing his claims.

It is also pertinent to note that a Ship is considered to be real property and not personal property thereby having a legal personality beyond that of her owners. Therefore there are certain claims which attach to the ship even where the ownership changes. These type of claims are known as Liens and the Admiralty Jurisdiction Decree No. 59 of 1991 recognises 2 types of Lien and these are Maritime and Statutory Liens.

2.5] Maritime Liens include:

  1. Claims relating to salvage including life, cargo or wreck found on land;
  2. Claims of damages caused by a ship
  3. Claims by the master or crew member of a ship for wages; [see FERNANDO & ORS. V. OWNERS MV "RHODESIAN TRADER" [1980 – 1986] 2 N.S.C. 339]
  4. Claims by the master in respect of disbursement on account of a ship [see THE MV KIANAN [1979] 1 N.S.C. 462 CA]

See Section 5[2][3] Admiralty Jurisdiction Act 1991

A maritime lien attaches to the ship or res and the rights of the Plaintiff are not prejudiced or overreached by virtue of a subsequent sale to a third party or change of ownership. [See MAXWELL EBUBE V GOLD STAR LINE LIMITED 4 N.S.C. 226]

2.6] Statutory Liens include:

  1. Claims arising from the supply of necessaries;
  2. Claims for repairs to a ship;
  3. Mortgage claims, etc, [the list is not exhaustive]

Once there is a claim for an enforcement of a Maritime Lien, such gives rise to an action in rem against the Ship. It is not always so where the claims are for an action arising out of a Statutory Lien unless the beneficial owner of the Ship remains the relevant party.

An action in rem is an action that can lie against the Ship, Cargo or Freight. On the other hand, an action in personam does not against the ship.

2.7] Therefore upon the occurrence of an event giving rise to a claim, that is, when a cause of action arises, the Counsel must be extremely careful in determining what type of claim he is dealing with and where such claim will be prosecuted. It is trite that the cause of action in a matter can only be discerned from the Statement of Claim [see AREMO II V ADEKANYE [2001] NWLR [PT. 644] P. 257 AT 277 and ADEYEMI V OPEYORI [1976] 9 – 10 S.C. 31] Therefore having determined what type of Claims are at hand, the Counsel must appropriately draft the Statement of Claim so that the cause of Action will be easily discernible.

3] JURISDICTION:

3.1] The Jurisdiction to hear and adjudicate over Maritime Claims is vested in the Federal High Court.

SECTION 7[I][G] OF THE FEDERAL HIGH COURT ACT 1973 reads:-

"7[I] The Court shall to the exclusion of any other Court have original jurisdiction to try civil causes and matters connected with or pertaining to –

[g] any admiralty matter, including shipping and navigation on the River Niger or River Benue and their affluents and on such other inland waterways as may be designated by any enactment to be an International Waterway, all Federal Ports, including the constitution and powers of the Ports authorities for Federal ports and carriage by sea;"

Also SECTION 8[1] OF THE FEDERAL HIGH COURT ACT 1973 reads:

"8[1] In so far as jurisdiction is conferred upon the Court in respect of the causes or matters mentioned in the foregoing provisions of this Part of this Act, the High Court or any other Court of a State or of the Federal Capital Territory, Abuja shall, to the extent that jurisdiction is so conferred upon the Court, cease to have jurisdiction in relation to such causes or matters."

Again SECTION 3 OF THE ADMIRALTY JURISDICTION DECREE NO. 59 OF 1991 reads:

"3 Subject to the provisions of this Decree, the admiralty jurisdiction of the Court shall apply to –

  1. all ships, irrespective of the places of residence or domicile of their owners; and
  2. all maritime claims, wherever arising"

All references to "the Court" in the above section mean the Federal High Court.

Lastly SECTION 251[1][G] OF THE 1999 CONSTITUTION reads:

"251[1] Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters

[g] any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluents and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal Ports, [including the constitution and powers of the Ports Authorities for Federal Ports] and carriage by sea;"

3.2] Sometimes it is unclear to litigants and their Counsel whether a cause of action falls within the Admiralty Jurisdiction of the Federal High Court as stated above. The Cause of Action in a Suit means the fact or facts which give a person a right of Judicial redress or relief against another. It is also a situation or state of facts which would entitle a party to sustain an action and give him right to seek judicial remedy. [See the case of BELLO V A.G., OYO STATE [1986] 5 NWLR [PT 458] 828].

3.3] The Supreme Court, Court of Appeal and Federal High Courts have had to deal with cases where it had been unclear to the litigants and Counsel whether they could invoke the Admiralty Jurisdiction of the Federal High Court. Let us look at some recent decisions.

NV. SCHEEP V MV. "S.ARAZ" [2001] 15 NWLR [PART 691] 622

In this case the Plaintiffs Claims were as follows:

"The Plaintiffs as agents to Messrs N.V. Scheep Vaatmij Unidor Willie Mstad of Curacoa, claim against the Defendants jointly and severally the sum US$300,000.00 [United State Dollars Three Hundred Thousand Only] as security for damages, interest and cost relating to a claim for demurrage and/or damages for detention for the 2nd Defendant's use or hire of the said M.V. CINDYA pursuant a charter party dated 17th October, 1989, which claim is presently before arbitration in London, United Kingdom."

The Defendants filed an application challenging the Jurisdiction of the Federal High Court to hear the case. The learned Trial Judge dismissed the application. The Court of Appeal felt otherwise and agreed with the Defendants that the Federal High Court did not have Jurisdiction. The matter was brought before the Supreme Court. The Supreme Court agreed with the Court of Appeal and unanimously dismissed the appeal. The Court decided that the Federal High Court did not have Jurisdiction to hear the matter. The lead judgement was by Ogundare J.S.C while the judgement delivered by Karibi-Whyte J.S.C. was also very instructive. The Claims of the Appellant was for security for damages, interests and/or costs that may be awarded in proceedings before arbitration in London, United Kingdom. Ogundare J.S.C had this to say at page 653 of the report:

"What is Plaintiff's cause of action in the present proceedings? Is security for damages, interest and/or costs that may be awarded in a proceeding a cause of action? Certainly not. Security for damages, etc, belongs to the realm of adjectival law that, that which prescribes method of enforcing rights or obtaining redress for their invasion. It is essentially rules of Court, whether civil, criminal or appellate. Laws which fix duties, establish rights and responsibilities among and for persons – be they natural or corporate – are known as substantive laws. But those which merely prescribe the manner in which such rights and responsibilities may be exercised and enforced in a Court are adjectival or procedural laws.

Security for damages, etc, belongs to the latter group. It is usually required of a debtor or Defendant to assure the payment or performance of his debt by furnishing the Creditor or Plaintiff with a resource to be used in case of failure in the principal obligation. It is not a cause of action that can ground a claim, unless otherwise specifically provided by statute"

The thinking of the Court of Appeal and Supreme Court is very clear. The Plaintiffs claims were themselves not Maritime Claims. There is no doubt that if the claims before the London Arbitration had been before the Federal High Court, same would be adjudged to be Maritime Claims and fall under the Admiralty Jurisdiction of the Court. It is also certain that if an award had been made after arbitration in London, the claim could have been sustained in view of SECTION 2[3][XIX] OF THE ADMIRALTY JURISDICTION DECREE NO. 59 OF 1991

3.4] In the case of G & C LINES V HENGRACE [NIG.] LTD. [2001] 7 NWLR [Part 711] 51 the Plaintiff's claims were as follows:

"[1] Against the 1st, 2nd and 3rd Defendants, a waiver of all demurrage payable to them or any of them and release of the container to the Plaintiff.

[2] Alternatively, from the 1st, 2nd and 3rd Defendants, damages in the sum of =N=390,200.00 plus interest at 21% from 16th March, 1995 the date the consignment would have been cleared until final payment.

[3] Against the 4th and 5th Defendants, an order of injunction restraining them from auctioning the consignment or otherwise disposing of it."

The Defendants subsequently filed an application for an Order dismissing and/or Striking-out the action on the ground that the High Court of Lagos did not have the jurisdiction to hear the matter. The High Court ruled that it had jurisdiction and the Defendants appealed to the Court of Appeal. The Court of Appeal considered the provision of Sections 1[1] [a], [b], [c], 1[2], 2[1], 2[3][e], [f] and [n] of the Admiralty Jurisdiction Decree No. 59 of 1991 and held that the scope of the Admiralty Jurisdiction of the Federal High Court in respect of carriage and delivery of goods extends from the time the goods are placed on board a ship for the purpose of shipping to the time the goods are delivered to the consignee or whoever is to receive them whether the goods were transported on land during the process or not. The Honourable Justice Ige J.C.A at page 62 – 63 of the report had this to say in her lead Judgement

"When one examines carefully the above provisions of the Decree along the line of the Plaintiff's claim in this case, the claim for a waiver and demurrage sprang from a contract of carriage of a container by sea – see paragraph 7 of the Statement of Claim. In paragraph 8 of the Statement of Claim the 1st Defendant as a common carrier was alleged to have accepted the container from Tilbury UK to Apapa Tin-Can Island for delivery to the Plaintiff at Lagos. 1st Defendant was also quoted as having issued a Bill of Lading No. TC. 6012 evidencing the contract of carriage of goods by sea and the container was identified as No. GR IU. 1079524 with seal No. 24791.

Before any Court can decide the issue of waiver or demurrage as claimed by the Plaintiff, the Court has to look into the agreement between the parties. The agreement comes under an agreement relating and connected with carriage of goods by sea. I cannot but agree with the submission of the Appellant that this case comes clearly under the admiralty jurisdiction of the Federal High Court. The issue of Bill of Lading is definitely under the contract of carriage of goods by sea. So also is the issue of demurrage...

"Issue 2 is mainly on the decision of the Supreme Court in the case of A.M.C. V N.P.A. [1987] 1 NWLR [PT. 51] 475, where the Supreme Court held that the claims of the Plaintiff did not arise out of any agreement relating to carriage of goods in a ship. A fortiori the Federal High Court could not exercise admiralty jurisdiction to determine the claim. I wish to distinguish that case from the present one. In the case of A.M.C. V N.P.A. [1987] 1 NWLR [PT 51] 475, the claim before the Federal High Court was with interest at the rate of 10% per annum for breach of a contract of bailment and or breach of duty as a bailee in the custody of 47 packages of aluminum sheets, delivered to the Defendant ex MV River Aboine.

In the present case, the Plaintiff's claims were for waiver of all demurrage payable to them or any of them and release of the containers to the Plaintiff. The alternative claim was for the sum of =N=390,200 as damages with interest at 21% from 16th March, 1995, the date the consignment would have been delivered until final payment.

Upon a careful perusal of the above Plaintiffs' claims the goods referred to were not lost as in the case of A.M.C. V N.P.A. [supra]. In the present case the goods had not yet been delivered to the owners even though they had arrived Lagos. The issue of waiver of demurrage are still referable to the agreement of the contract of carriage by sea.

It is my humble view that this case is not on all fours with the case of A.M.C. V N.P.A. [1987] 1 NWLR [PT. 51] 475."

In this case, the Plaintiff obviously felt that its claims did not directly relate to the contract of carriage but to events which occurred thereafter such as payments on demurrage and preventing the Department of Customs and Excise from auctioning the Plaintiff's containers. This informed the filing of its claims at the High Court. However the Court of Appeal decision in this case makes it very clear that such claims are maritime claims under the admiralty jurisdiction of the Federal High Court.

3.5] LOCUS STANDI:

Locus Standing is the right of person to sue another in a Court of Law of "the right of a party appear and be heard on the questions before any Court of tribunal". See ADESANYA V. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA [1981] 2 N.C.L.R. 358. It is now the law that once a person can show sufficient interest in the subject matter of a suit, such person would be entitled to bring an action. See ADEDIRAN V INTERLAND TRANSPORT LTD. [1991] 9 N.W.L.R. [PART 214] 155, BADEJO V. FEDERAL MINISTER OF EDUCATION [1990] 4 N.W.L.R. [PART 143] 254 and K. LINE V. K.R. INTERNATIONAL LTD. [1993] 5 N.W.L.R. [PART 292] P. 173 AT 176 PER TOBI J.C.A.

3.6] Locus Standi can be derived from the following:

  1. Statute
  2. Judicial Practice
  3. Custom and Practice of a particular trade, profession or community

The right to sue on contracts of carriage of goods by sea is statutory. For example Section 1 of the Bill of Lading Act 1855 provides that:

"Every consignee of goods named in a bill of lading, and every endorsee of a bill of lading, to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or endorsement, shall have transferred to and vested in him all rights of suit to be subject to the same liabilities in respect of the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with him."

Thus only a consignee of goods in a bill of lading or an endorsee of the bill of lading may sue. See OWNERS OF MV BACO LINER3 V. ADENIJI [1993] 2 N.W.L.R. [PART 274] 188

3.7] A re-endorsee or any person to whom a bill of lading has been transferred to with or without actual endorsement may also sue. Section 375[1] & [3] MERCHANT SHIPPING ACT CAP 224 LAWS OF THE FEDERATION OF NIGERIA provide as follows:

  1. Every consignee of goods named in a bill of lading, and every endorsee of a bill to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or endorsement shall have transferred to and vested in him all right of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself.
  2. Every bill of lading in the hands of a consignee or endorsee for valuable consideration representing goods to have been shipped on board a vessel shall be conclusive evidence of such shipment as against the master or other persons signing the same, notwithstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same that the goods had not been in fact laden on board:

Provided that the master or other person so signing may exonerate himself in respect of such misrepresentation by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom the holder claims.

3.8] In a very recent decision, the Supreme Court spelt out the types of indorsements that may be on a bill of lading to Wit: special indorsement, indorsement in blank and restricted indorsement. The Court also held that any endorsee or consignee to whom the property in the goods shall pass upon by reason of such consignment or indorsement and who has given valueable consideration shall be entitled to sue. SeeBOOTHIA MARITIME INC. & ORS. V. FAR EAST MERCHANTILE CO. LTD. [2001] 9 N.W.L.R. [PART 719] 572 AT 569

3.9] In the case of SASEGBON V FISCHER [1988] N.S.C. VOL. 3 One Mr. Fola Sasegbon, a lawyer who has over many years distinguished himself in admiralty practice undertook some work in connection with the sale of two ships namely M.V. "Atinuke Abiola" and M.V. "Binta Yar' Adua" at the request of the 1st Defendant. The Defendants refused to pay the balance of =N=816,000.00 demanded by the Plaintiff. In the Federal High Court, the Plaintiff brought an Ex-parte Motion pursuant to Section 335[1] of the Merchant Shipping Act, 1962, and Order 47 Rule 2 of the Federal High Court [Civil Procedure] Rules, 1976, praying for an Order to prohibit the transfer of all rights, including but not limited to rights of sale, mortgage and/or transfer of the existing mortgage in the two Nigerian registered ships M.V. "Atinuke Abiola" and M.V. "Binta Yar' Adua" until the determination of the suit or until the Court otherwise orders.

The Chief Judge of the Federal High Court heard the application. He refused to grant the orders of injunction sought. The Plaintiff was in the opinion of the Court not a person interested in the ship and therefore could not sustain the action and/or obtain orders of injunction under the Merchant Shipping Act. At the pages 322 to 323 of the report he said:

"I am satisfied that there is evidence of a case between the Plaintiff and the Defendant, and if the injunction were against the Defendant simpliciter, I would have no hesitation in granting it. What gives me the greatest concern is the involvement of the sale, mortgage or transfer of the Ocean Vessels. It may be true that the Plaintiff drew up the document of sale or transfer of the vessels at the instance of the Defendant. The nature of this claim is not like that of Shipbroker or Commission agent in purchasing or chartering a vessel in which contract expressed or implied between shipbroker or commission agent on one side and the buyer or the seller on the other side, is directly related to sale or transfer of a ship where it can be claimed that the broker is involved in the sale or hire. But even in cases of claim by shipbrokers or commission agents, I am not of the view that such a claim had been taken to be of such a nature to prevent completion of transfer or sale of the ship simply because there is a disagreement on the amount of commission to be paid."

4] PRACTICE AND PROCEDURE:

4.1] The Claim is formulated. It is a maritime claim and the Counsel heads for the Federal High Court, files the Claim and pays the requisite filing fees. While Civil actions in the Federal High Court are generally regulated by Civil Procedure Rules now the Federal High Court Civil Procedure Rules 2000, the Practice and Procedure relating to maritime claims is regulated in the main by the Admiralty Jurisdiction Procedure Rules of 1993. The commencement date of the Rules was 2nd August, 1993. Order II deals with the form and commencement of suits. Specifically Order II Rule 1[1] reads "every Admiralty action filed in the Court shall be commenced by a Writ of Summons signed by a judge or other officer empowered to sign summons." While Order II Rule 2[1] and [2] provide that an action in rem shall be accompanied by a Statement of Claim while the Plaintiff in an action in personam is expected to state his claim in his application for the Writ of Summons in order to give the Defendant sufficient information as to the details of the Claim.

4.2] Respected author and Senior Advocate of Nigeria, L.N. Mbanefo S.A.N. in his Nigeria Shipping Practice and Procedure 1994 comments at paragraph 32.03, page 107 on Order II as follows:

"This Rule bears the caption "particulars of claim" and it is submitted that its provision that every Writ of Summons in an action in rem should be accompanied by a "Statement of Claim" is inaccurate. It has never been the practice in Nigeria or in England to require that the Writ of Summons in an admiralty matter should be accompanied by a Statement of Claim. It should be borne in mind that in actions in rem, a motion for the arrest of the vessel [or res] is often filed simultaneously with the Particulars of Claim. The Motion is always accompanied by an Affidavit which gives details of the nature of the Claim and therefore it is doubtful whether the addition of a Statement of Claim is necessary. Furthermore, it is doubtful whether a distinction between actions in rem and actions in personam as provided in sub-rules [1] and [2] of Rule 2 is relevant. It is submitted that the filing of particulars of claim is all that is necessary in both cases."

I am of the strong opinion that it is better and more expedient to file a Statement of Claim with the Writ in both actions in rem and in personam. This is especially so with actions in rem where the issue of the arrest of a vessel may arise. It will be better to provide the Court with all the details of the Plaintiff's case.

4.3] The Rules also provide that in an action in rem, the relevant person concerned as a Defendant shall be specified and this may be by reference to the ownership of or other relevant relationship to the ship. Where the action is against a ship or a sister ship, the Writ shall identify the ship or the sister ship. Order V provides for Rules relating to service of processes. As regards service of Court Orders on a Ship at the Port the following persons should ordinarily be served with Court Orders:

  1. The Chief Controller/Area Administrator of Customs & Excise
  2. The Port Manager, NPA,
  3. The Chief Harbour Master, NPA,
  4. The Chief Pilot NPA, NPA
  5. The Chief Dock Superintendent NPA,
  6. The Commissioner of Police; and
  7. The Officer Commanding the Navy

4.4] Order III Rule 1 provides as follows:

"In an action to enforce a claim for damages arising from the loss of a ship or for damage done to or by a ship following a collision between two or more ships, each party shall file a preliminary act, unless the Court otherwise orders".

The Plaintiff shall file his Preliminary Acts within 7 days after the commencement of the proceedings and other parties shall file theirs before filing any pleadings. The Preliminary Acts shall contain:

"a] the names of the ships which came into collision and their Ports of registry;

b] the date and time of the collision;

c] the place of the collision;

d] the direction and force of the wind;

e] the state of weather;

f] the state, direction and force of the tidal or other current;

g] the course steered and speed through the water of the ship when the other ship was first seen or immediately before any measures were taken with reference to her presence, whichever was the earlier;

h] what light or combination of lights [if any] of the other ship was first seen;

i] the distance and bearing of the other ship if and when her echo was first observed by radar;

j] the distance, bearing and approximate heading of the other ship when first seen;

k] what other lights or combination of lights [if any] of the other ship were subsequently seen before the collision and when;

l] what alterations [if any] were made to the course and speed of the ship after the earlier of the two times referred to in paragraph [k] up to the time of the collision, and when, and what measures, [if any] other than alteration of course or speed, were taken to avoid the collision, and when;

m] the heading of the ship, the parts of each ship which came first into contact and the approximate angle between the two ships at the moment of contact;

n] what sound signals [if any] were given and when;

o] what sound signals [if any] were heard from the other ship and when;"

Being the bedrock of his claim, a Plaintiff must firstly file a Preliminary Act before the service of pleadings in collision actions.

It is to be noted that the Court may dispense with these requirement and thus the imposition of sanctions as a consequence of failure to file Preliminary Act is entirely at the discretion of the Court.

5] ARREST OF SHIPS AND OTHER PROPERTY:

5.1] The arrest and detention of ships under the Admiralty Jurisdiction Decree No. 59 of 1991 is a commonly applied judicial pre-emptive remedy in the practice and procedure of Maritime Claims. The type of arrest and detention of ships under the statute is very different and distinct from seizure of ships or property in enforcement of judgements and its procedure is regulated under Orders 6, 7, 8, 9, 10 and 11 of the Admiralty Jurisdiction Procedure Rules. The statute itself does not define arrest but in Article 1[2] 1952 Bussels Convention on Arrest, "arrest" is defined as "the detention of a ship by judicial process to secure a maritime claim, but does not include, the execution or satisfaction of a judgement". A Plaintiff may file a Motion Ex-parte to arrest s ship under Order VII of the Rules. The ship must be that of the Defendant, it must be identifiable as the ship in connection with which the claim made in the action arose or a sister ship, that is, another ship belonging to the same Defendant. Again it is imperative that the claim must be a maritime claim as enumerated above.

5.2] Therefore the Court will in proper circumstances order the arrest of a ship where there is a maritime claim. For example where:

  1. There is a claim for damage done by a ship [whether by collision or otherwise. These include claims against a ship that damages oil pipelines or submarine cables. See THE SILVIA [1991] 4 NSC 69, THE ESCHERSHEIM [1976] 2 LLOYD'S Rep. 1 P. 8 and The MINERA [1933] P 224: 46 L.L.R. 423
  2. The Claim is for damage received by a ship
  3. The Claim is for loss of life or personal injury sustained in consequence of a defect in a ship, its apparel or equipment. Here, the Plaintiff may have sued the owners or chatterers of the ship.
  4. The claim arises from an agreement relating to the carriage of goods or persons by a ship or the use or hire of a ship whether by Chatter party or otherwise. This covers claims in contract and tort as long as it arises out of any agreement relating to carriage of goods or persons in a ship. See The ELEFTERIO [1957] 1 LLOY'D'S REP. 283 AND THE MOSCANTHY [1971] 1 LLOYDS REP. 37

The distinction between a Demise Chatter-party and Time Chatter-party is worth mentioning at this stage. The distinction was succinctly put by Muhammed J. in "THE MASTER MV VITALLI II [1990] 3 NSC 630" as follows:

"...The difference between a demise chatter and a time chatter is this. A chatter by demise operates as a lease of the ship itself. The chatterer becomes for the time the owner of the vessel; the master and crew become to all intents his servants, and through them the possession of the ship is in him. Whereas under a time chatter the ship-owner agrees with the chatterer to render services by his master and crew to carry the goods which are put on board his ship by or on behalf of the chatterer. Under a time chatter not withstanding the temporary right of the chatterer to have his goods loaded and conveyed in the vessel the ownership and also the possession of the ship remain in the original owner through the master and crew, who continue to be the servants of the ship-owner."

It suffices to say that any maritime claim as enumerated under Section 2 Admiralty Jurisdiction Decree No. 59 of 1991 may give the Plaintiff a right to apply for the arrest of a ship.

5.3] The mere fact that the Plaintiff has brought an action in rem does not as a matter of course entitle the Plaintiff to an Order of Arrest. See THE SEA THAND II 1 NSC 296 and THE ADVANCE 4 NSC 54. In deserving cases, the Plaintiff files a Motion Exparte even before the service of the Writ seeking for orders arresting the ship. The application should be supported by the following:

  1. an affidavit of urgency
  2. affidavit in support of motion which must disclose a strong prima facie case, stating briefly the nature of the claim or counter-claim; whether the Defendants are owners or chatterers or persons in possession or control of the ship; the type of chatter party; the name of the vessel; that the claim has not been satisfied; location of the vessel; whether the claim is one which gives right to an automatic action in rem. [see NATIONAL OIL AND CHEMICAL PLC V. MX DEVELOPMENT LTD – THE PHOENIX [1992] 4 N.S.C. 260]
  3. if the claim is one giving rise to a statutory right of action in rem, then the affidavit must contain the following particulars:

    1. the name of the person who would be liable in action in personam;
    2. that he was when the cause of action arose the owner or chatterer or in possession or control of the ship in connection with which the claim arose;
    3. that he was when the Writ was issued the beneficial owner of all the shares in the ship to be arrested or where the ship to be arrested is the ship in connection with which the claim arose, the demise chatterer of the ship;
  4. an indemnity form, indemnifying the Admiralty Marshall for the expenses incurred; and
  5. the particulars of claims which form the basis of the issuance of a Writ of Summons.

5.4] It is also very important to state in the Affidavit in Support why it is necessary to arrest the ship e.g. that the ship is about to sail to another country or that the ship is about to sail to a war zone and that this would affect the Plaintiff's interest

5.5] The Plaintiff must give an undertaking as to damages when an arrest is ordered and made. A Warrant of Arrest can be executed on any day and can be served on the ship at any time.

5.6]The arrest of a ship pursuant to actions in rem is completely different from Mareva injunctions, Anton Piller Orders and Ex-parte Injunctions. [See THE D9 QUING SHAN NO. 1 [1991] 4 N.S.C. 151 CA]

6] SECURITY:

6.1] An Order of Arrest is a most detrimental occurrence to the owners of the ship considering the loss of income that may arise during the period of arrest. Ship owners through their lawyers invariably have to take quick steps through the Admiralty Process to secure the release of the vessel. This can be done by offering as security a bail bond, a guarantee, or a Protection and Indemnity Club. Indemnity which is known as Letter of Undertaking [LOU] [See page 18 of the Paper on Fundamentals of a Successful Arrest and Issues of Release and Security by Chief E.O. Idowu delivered in March 1998 at the Maritime Seminar for Judges organized by the Nigerian Shippers Council]

6.2] Although Order 9 Rule 2[3] of the Rules say that a release may be effected on such terms that are just, the Plaintiff is entitled to security to cover the claim and cost. See THE MOSCANTHY [1971] 1 LLOYD'S REP. 37, 44 and THE TRIBELS [1985] 1 LLOYD'S REP. 128, 130. The Court will also consider the convenience of the enforceability of the security in making an order for release. See THE WEGBA [1993] 4 N.S.C. 373

The procedure for the release of a ship upon the provision of security is covered by Order 9 Rule 1[i] which reads:

"1[i] where a ship or other property is under arrest in a proceeding and the Court is satisfied that –

  1. an amount equal to –

    1. the amount claimed; or
    2. the value of the ship or property, whichever is the less, has been paid into Court; or
  2. a bail bond for an amount equal to –

    1. the amount claimed; or
    2. the value of the ship or property, whichever is the less, has been filed in the proceeding,

The Registrar may, on written application by the relevant person release from arrest the ship or property

6.3] The Nigerian experience show a preference for bail bonds or guarantees rather than an indemnity from a Protection and Indemnity Club [P. & I. Club] or Letter of Understanding [L.O.U.] In MAXWELL EBUBE V GOLD STAR LINE LTD. 4 NSC 266 it was held as per Ojutalayo J. that:

"Club letters of undertaking though popular in Europe, are sparingly used in this country and have not in any way ousted or abrogated the use of other forms of security – such as bail bond and bank draft guarantee – which are more popular used."

The reason for this is not far fetched. A bail bond or bank guarantee is easier to enforce locally while a letter of undertaking may have to be enforced in a foreign Court after the Plaintiff's victory in the substantive suit. Furthermore, a bail bond or guarantee involves an expenditure or commitment of money on the part of the Defendant and in such circumstances the Defendant will be eager to either conclude the case or settle the claim out of Court. However if the security provided is in the form of Letter of Undertaking or a Protection and Indemnity Club indemnity issued by a club to which the Defendant belongs, the Defendant's expenditure or commitment is limited only to the premium it pays to the Club. In this situation the Defendant might not be under serious pressure after securing the release of the ship to either conclude the case or settle the claim.

7] CAVEATS:

7.1] This is a NOTICE addressed "to whom it may concern". There are 2 types: [i] Caveat against arrest and [ii] Caveat against release. Order VI Rules I to II of the Rules deal with Caveats. Basically, the filing of a Caveat by the Caveator implies that the Defendant accepts to submit to jurisdiction or at least appear to the suit and that the Defendant concedes to the furnishing of security up to an amount not less than the amount claimed or the amount in the caveat. It is an undertaking by the caveator to pay. A caveat may be filed after the order for arrest is made but before the arrest is made.

8] PLEADINGS:

The Plaintiff must carefully formulate the Statement of Claim in order to successfully prosecute a maritime claim. It is pertinent to mention a few ingredients of such pleadings when it concerns different Maritime Claims.

8.1] In a claim for possession or ownership of a ship, the Plaintiff's claims would be for a declaration that he is the beneficial owner of a certain amount of shares which entitles him to be the registered legal owner of such shares and also for orders that the Defendant be compelled to execute a bill of sale transferring the shares in the ship to the Plaintiff.

Here the claim must state clearly:

  1. How the Plaintiff became the owner of the shares, proof of consideration, that the Defendant has failed to execute the bill of sale despite demand
  2. If possession is claimed, indicate the location of the vessel and its documents such as the Certificate of Registry
  3. The reason for seeking possession
  4. The Plaintiff could also state how the ship had hitherto been managed and the issue of proper accounts of the proceeds from the ship's earnings could be raised.

8.2] In a claim relating to mortgage of a ship, the claim will include the amount of the Plaintiff's claim and that the amount was served by a legal mortgage of a ship, particulars of the mortgage which would have the following:

"i] date of mortgage

ii] whether mortgage was registered in accordance with the provisions of the Merchant Shipping Acts. If so, time and date of registration. [This is important in the case of priorities which rank equally]

iii] that the Defendants are the lawful and duly registered owners of the shares in the ship

iv] that those shares were mortgaged to the Plaintiffs to secure an account current between Plaintiffs and Defendants

v] whether the deed of covenant that goes with legal mortgage say anything regarding events of default. Has any of those events now occurred?

vi] the interest provision and the rate

vii] that the Defendants have failed to pay the instalments on the day payment was due and this failure is an event of default.

viii] If the ship has been arrested by other claimants this should be indicated because this is a further act of "Events of Default".

ix] when were notices of default given? Was there a demand of the repayment of the balance outstanding?

x] the amount now due and outstanding on the mortgage and particulars or schedule of the debts.

xi] the interest due

xii] that the mortgage is valid and interest is due thereon pursuant to the mortgage

xiii] that the vessel be appraised [valued] and sold."

8.3] In a claim for damages received by a ship such as where the ship has sustained damage at the port, the Plaintiff in suing the Nigerian Ports Plc must give the pre-requisite pre-action notice. See AMADI V NNPC [2000] 1 NWLR [PT. 674] 76 AT 89

The Claim could be in negligence or in contract such as providing a defective berth. The pleadings here must include the actual time of the damage, the description of damage [particulars] and the amount of damages specifically claimed.

8.4] A claim for personal injuries sustained and loss incurred on board a Defendant's ship must include the Plaintiff's status on the ship, how the accident occurred, description of the part of the ship [or equipment]. If the Plaintiff works on the ship he must describe his duties and mode of carrying out same, he must state the safety measures if any on the ship. This type of claim can be brought against the owners or chatterers of the ship, a person in possession or control of a ship and a person in possession of the ship is liable. The act or omission must be related to the management of the ship including when loading and unloading the ship, embarkation and disembarkation of persons from the ship and carriage of goods or persons on the ship [see Section 2[4] Admiralty Jurisdiction Decree No. 59 of 1991]. In cases where death occurs as a result of the personal injuries incurred on board a ship, the Personal Representatives of the estate of the deceased would claim damages on behalf of the dependants.

8.5] Claim for loss of or damage to goods carried by a ship. Such claims could be for negligence and/or breach of contract. In-fact the Plaintiff could elect. In EXQUISITE INDUSTRIES [NIG] LIMITED V. OWNERS OF M.V. BACOLINERS 1 – 3 & ANOR. [1998] 5 NWLR [PT. 549] 335. per Ayoola JCA [as he then was], it was held as follows:

"The right of action for damages for loss of and damage to cargo can be founded in contract or in tort. When the action is in contract the persons who can sue include a shipper of goods under the bill of lading or his principal when such shipper was acting as agent [see GARDANO AND GAMPIERI V GREEK PETROLEUM GEORGE MAMIDAKIS & CO [1961] 2 LLOYD'S REP. 259]; and, a person to whom absolute property in goods has passed either by endorsement and delivery of bills of lading or endorsement and delivery of the goods. [see MERCHANT SHIPPING ACT, SECTION 375 [1] CAP 224 LAWS OF THE FEDERATION 1990]. When the action is in tort the owner of the goods or the persons entitled to possession of the goods at the time of the relevant tort can sue. [see LEIGH AND SULLIVAN V. ALIAKMON SHIPPING CO. [1986] AC 785] [for a fuller summary of persons who have title to sue the carrier for loss of or damage to cargo, see BULLEN AND LEAKE AND JACOBS PRECEDENTS OF PLEADING [13TH EDITION] PP 187 – 188]."

The Plaintiff must define his or its status in the claim whether as consignee or consignor or endorsee for value. A NOTIFY PARTY cannot sue nor a wife sue on behalf of her husband. In addition the Plaintiff must state the date of carriage, the bill of lading, the date, place of issue, and number of the bill of lading. Where the Plaintiff claims damages for short landing, the quantity short landed must be clearly stated. In the event of loss, the quantity lost must be stated. The Defendant can usually be found in the

bill of lading. A bill of lading has been described in Blackburn on Sale, 3rd Edition Page 421 as:

"A writing signed on behalf of the owner of the ship in which goods are embarked, acknowledging the receipt of the goods, and undertaking to deliver them at the end of the voyage [subject to such conditions as may be mentioned in the bill of lading]. The bill of lading is sometimes an undertaking to deliver the goods to the shipper by name, or his assigns; sometimes to order or to assigns, and not naming any person, which is apparently the same thing, and sometimes to a consignee by name, or assigns, but in all its usual forms it contains the word assigns. The bill of lading is therefore, a written contract between those who are expressed to be parties to it, on behalf of their principals if they are agents, that is, generally speaking, between the master of the ship on behalf of his principals the ship owners, on the one part, and the person named as shippers of the goods on behalf of the person who, at the time of shipment, was his principal, on the other part, by which it is agreed that the ship owner is to deliver the goods to the person who shall fill the character of assign."

see BOOTHIA MARITIME INC. V FAREAST MERCANTILE CO. LIMITED [2001] 9 NWLR [PT. 719] 572 AT 600. However the Supreme Court in CAPTAIN MICHAEL CHACHAROS & ANOR. V. EKIMPER LIMITED & ORS. [1988] 3 N.S.C. 218 AT 238 has held that it was possible to have other documents referred to in the Statement of Claim as evidence of the contract between the parties. Thus where the Plaintiff categorically attacks and challenges the bill of lading as a fraud and document of deceit, the Court is entitled to look at other documents and therefore hold that there was a simple contract not based on the bill of lading before the Court. See PURIFICATION TECHNIQUES LIMITED V. NIGERIAN UNITY LINE & ANOR., Suit No. FHC/L/CS/263/99 unreported Ruling delivered on 17th April, 2000 by the Federal High Court, Lagos. Coram Egbo – Egbo J. and OGWURU V. CO-OP BANK OF EASTERN NIGERIA [1994] 8 NWLR [PART 365] 385.

8.6] Claims arising out of an agreement relating to the carriage of goods or persons by a ship. This type of claims cover voyage chatter parties for freight, dead freight, demurrage and cay-damage.

Where there is a claim on freight, the Plaintiff must state clearly the amount due on the freight under the voyage chatter party. It must also state the circumstances of the carriage e.g. time and place of loading and time and place of discharge. Courts will rarely order that a ship be arrested under the procedure for arrest because of freight. Where the Plaintiff claims for dead freight, that is, where too little cargo is delivered and the Plaintiff claims a freight compensation; the claim will be for the difference between the full freight to which the Plaintiff would have been entitled if all the cargo were delivered and the freight to be paid according to the quantity taken on board less any expenses saved for the short delivered cargo.

8.7] Demurrage is the amount of money paid to the ship-owner by the chatterer, shipper or receiver failing to complete loading or off loading within the time provided by the chatter party. In the Statement of Claim containing a claim for demurrage, the Plaintiff must state, the name of the vessel, date of execution of the chatter party, period of chatter, the voyage covered, total laytime, date of departure or arrival, date of notice of readiness, port of departure or arrival and when loading or discharge was completed.

8.8] There are other types of maritime claims and these also enjoin the Plaintiff to carefully raise specific issues in his pleadings so as to sustain and successfully prosecute the claim.

Any person who controls the commercial operation of a ship can bring a claim for moneys due on the Hire of the Ship. The claim must particularize the type of chatter party, the relevant terms, when the ship was delivered and re-delivered, how much is owed and other costs.

There are also claims that may be made relating to unsafe Ports in that the Defendants ordered the ship to sail to an unsafe port where for example damage was caused to the ship.

Where the claim is for salvage, the Plaintiff must give account of how he got involved, the names of the tug used, the ship rescued and how the rescue mission was carried out.

8.9] Where the Plaintiff makes a claim for General Average, that is, an intentional act or sacrifice undertaken during a voyage and which claim entitles him to reimbursement by all the other parties to the maritime adventure. It is usual for the Plaintiff to make such claim against the insurers. Section 66 of the English Marine Insurance Act 1906 defines General Average as:

"i] a general average loss is a loss caused by or directly consequential on a general average act. It includes a general average expenditure as well as a general average sacrifice.

ii] there is a general average act where any extraordinary sacrifice or expenditure is voluntarily and reasonably made or incurred in time of peril for the purpose or preserving the property imperiled in the common adventure."

Also ARNOLD Law of Insurance and Average 16th Edition Vol. 2 at Page 798 to 799 classifies General Average as:

"i] those which arise from sacrifices of part of the ship or part of the cargo, purposely made in order to save both from perishing.

ii] those which consist in expenses incurred owing to extraordinary measures undertaken for the preservation of both ship and cargo."

In order to have a successful claim for General Average, the loss must result from the act of man. It must be the voluntary act of the master and of no one else [except in the case of his death, disability or absence] done for the safety of the common interests entrusted in his care, and with no other object See RALLI V. TROOP [1884] 157 U.S. 386. Again the sacrifice made which must be extraordinary in nature must have been successful in averting the peril of imminent danger. All the above circumstances must be carefully and well stated in order to sustain a successful claim.

8.10] If the Plaintiff's claim is in respect of Pilotage of a Ship, he must state:

  1. The agreed fee
  2. That such fee is reasonable in the circumstances
  3. Whether he is a certified pilot or not
  4. The date and time the services were rendered and
  5. That he has made demands and payment is not forthcoming.

A person may be said to be piloting a ship if he directs the navigation of the ship. [see BABBS V. PRESS [1971] 1 W.L.R. 1739]. The Pilot conducts the ship through a river or channel from or into a port, particularly with regard to his knowledge of local conditions. See THE ANDONI [1918] P. 14, 18 PER HILEJ and McMILLAN V. CROUCH [1972] 1 W.L.R. 1102.

8.11] In a claim in respect of goods, materials or services [including stevedoring and lighterage services] supplied or to be supplied to a ship for its operation or maintenance, the Plaintiff must state the following:

  1. The status of the parties [Plaintiff and Defendant]
  2. The goods or services supplied or rendered and which operations of the ship were used for a related to.
  3. The cost of the goods or services
  4. The failure of the Defendant to pay

8.12] In other claims such as claims in respect of the towage of a ship, claims for construction of a ship, claims for liability for port, harbour, canal or light tolls, charges or dues or tolls or other charges or dues which the Nigeria Ports Plc may institute an action, claims arising out of bottomry, claims by a master, shipper, chatterer or agent in respect of disbursements on account of a ship, the Plaintiff must carefully reflect his status and the details of the facts leading to his claim and the amount of damages. While it is not mandatory for the Particulars of Claim or Statement of Claim to specifically mention the type of claim which the Plaintiff brings, it is advisable that the Plaintiff be as particular and detailed as possible so that the Court will be quick to discern under which head the Plaintiffs claim is brought. This will assist the Court to narrow down the issues involved in the case and therefore enable the Court to expeditiously dispose of the claim.

9] OTHER CONSIDERATIONS:

9.1] There are other aspects of procedure in prosecuting maritime claims which Counsel will have to contend with from time to time. These include Reparation for needless arrests [Order XI of the Rules], payment of bail [Order XII], limitation proceedings [Order XIII] [e.g. limitation of liability under SECTION 363, MERCHANT SHIPPING ACT, 1962 as considered in "THE LELIEGRACHT" [1988] 3 N.S.C. 372] and valuation and sale [Order XIV]. For provisions relating to needless Detention of Ships and Reparation for such, recourse is to be made to Order 18 of the Federal High Court Civil Procedure Rules 2000.

9.2] There are also several limitation clauses which define the period within which a maritime claim can be brought to Court.

It is trite that where the law prescribe a period within which proceedings may be brought, any action instituted thereafter cannot be sustained. See OBIEFUNA V. OKOYE [1961] 1 ALL N.L.R. 257. Limitation clauses are usually inserted in Shipping documents such as Bills of Lading. In fact Article 3 Rule 6 of the Carriage of Goods by Sea Act Cap 44 Laws of the Federation of Nigeria 1990 which affects claims with respect to carriage of goods by sea and provides that:

"Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier of his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.

The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection.

In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered" [Underlining supplied for emphasis].

9.3] Section 7[3] and 7[1] Limitation Decree No. 88 of 1996 provides as follows:

"The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued..."

"Save as otherwise provided by subsection [2] of this section, this section shall not apply to any cause of action within the admiralty jurisdiction which is enforceable in rem."

9.4] It is only a claimant who has a cause of action within the admiralty jurisdiction in which is enforceable in rem that can benefit from this Section. The action must be "enforceable in rem" in order not to fall under the 6years rule. This means that it does not matter if the action was in fact commenced in personam as long as the action is "enforceable in rem"

10] ENFORCEMENT OF MARITIME CLAIMS:

10.1]Having successfully formulated the claim, pleaded material facts and conducted trial at the appropriate venue by leading sufficient evidence in proof of its claim the Plaintiff will usually have judgement entered in its favour.

In a recent work titled "Injunction and Enforcements of Orders" by Chief Afe Babalola OFR, SAN, LL.D, the learned author at page 260 opined as follows:

"To any litigant, the joy of any victory recorded in the judicial process becomes meaningful only and only when orders granted in his favour are enforced successfully. For instance, the Judgement Creditor in an action for damages is happy only when he receives hard cash. It is therefore necessary that the legal practitioner is comfortably familiar with the law relating to enforcement of orders so as to avoid the pitfalls which may turn the euphoric joy of obtaining an order or judgement into ashes. In some cases, the enforcement of any order or judgement may be frustrated through incompetence or wrong procedure which may be frustrated through incompetence or wrong procedure which may deny the party in whose favour the order or judgement has been given the fruit of the order or judgement. It is also true that faulty enforcement of an order or judgement may saddle the victorious party with liability for wrongful execution"

10.2] It is trite that the Judgement of a Court, once delivered becomes immediately enforceable until set aside of discharged See the cases of HART V. HART [1990] 1 N.W.L.R. [PART 126] P. 276 AT 279 and BABATUNDE V. OLATUNJI [2000] 2 N.W.L.R. [PART 646] 557. There are set down modes of enforcing judgements of the Courts.

The law regulating enforcement of judgements and awards including those related to maritime claims can be found in the Sheriffs and Civil Process Act CAP 407, Laws of the Federation of Nigeria 1990. This legislation deals with execution against moveable property, committal to prison, seizure of goods and securities and custody thereof, sale of goods seized, execution against immovable property, sequestration and liens.

10.3] In enforcing judgements or awards under maritime claims the successful party could elect to do any of the following:

  1. Writ of fieri facias [fifa]
  2. Garnishee proceedings
  3. Charging orders
  4. Writ of special delivery on goods or their value
  5. Order of committal to ensure the doing of or restrain the doing of or continuation of an act
  6. Bankruptcy proceedings
  7. Winding-up proceedings
  8. Writ of sequestration

For the purpose of this paper, we shall consider Writ of Fieri Facias and Garnishee proceedings only.

10.4] WRIT OF FI – FA:

Section 20[1] & [2] Sheriffs and Civil Process Act Cap 407, Laws of the Federation of Nigeria 1990 provide as follows:

"i] Any sum of money payable under a judgement of a Court may be recovered, in case of default or failure of payment thereof forthwith or at the time or times and in the manner thereby directed, by execution against the goods and chattels and the immovable property of the Judgement Debtor in accordance with the provisions of this Act

ii] The Registrar on the application of the Judgement Creditor shall cause to be issued a Writ of attachment and sale whereby the Sheriff shall be empowered to levy or cause to be levied by distress and sale of goods and chattels, wherever they may be found within the division or district of the Court, the money payable under the judgement and the costs of the execution.

This is the most commonly employed by lawyers in the execution of Court Judgement. It involves a process that is mostly administrative such as applying for the issue of the Writ, compiling the amount of the Judgement debt, passing the Writ to the presiding judge to authorize and the actual execution. Where there is a successful maritime claim and Judgement is awarded, the execution is carried out by the Bailiffs of the Federal High Court with Counsel for the Judgement Creditor acting as a pointer and policemen ensuring that the exercise is carried out without a break down of law and order.

Once the goods have been seized, the next step is for Counsel to get the Deputy Sheriff to sell the goods and realise the judgement debt. Such sale can only take place after five days have elapsed except where the goods are of a perishable nature or the person whose goods have been seized consents in writing to the sale. [See Section 29 Sheriffs and Civil Process Act]

If the goods seized and sold do not cover the amount of the Judgement debt that execution will be levied upon the immovable property of the Judgement Debtor. [See Section 44 Sheriffs and Civil Process Act].

A Ship may be attached in execution of a final judgement if it was a Defendant to the proceedings or it belonged to a Defendant in the proceedings.

10.5] GARNISHEE PROCEEDINGS:

Order 44 Rule [1] Federal High Court Civil Procedure Rules 2000 provides as follows:

"Where a person [in this Order referred to as "the Judgement Creditor"] has obtained a Judgement or Order for the repayment by some other person [in this Order referred to as "the Judgement Debtor"] of a sum of amounting in value to at least =N=100 not being a Judgement or Order for the payment of money into Court, and any other person within the jurisdiction [in this Order referred to as "the Garnishee"] is indebted to the Judgement Debtor, the Court may, subject to the provisions of this Order and of any enactment, Order the Garnishee to pay the Judgement Creditor the amount of any debt due or accruing due to the Judgement Debtor from the Garnishee, or as much thereof as is sufficient to satisfy that Judgement or Order and the costs of the Garnishee proceedings."

Section 83[1] & [2] Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990 also provide as follows:

  1. The Court may, upon the Ex-parte application of any person who is entitled to the benefit of a judgement for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgement and upon affidavit by the applicant or his legal practitioner that judgement has been recovered and that it is still unsatisfied and to what amount and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgement or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgement or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgement or order together with costs aforesaid.
  2. At least fourteen days before the day of hearing a copy of the order nisi shall be served upon the garnishee and on the judgement debtor.

The Court in the first instance will make an Order that the Garnishee show cause while attaching the debt or funds mentioned. Where the Garnishee does not dispute the debt or existence of the fund, the order will be made absolute

10.6] Enforcement of Foreign Judgements:

Where the judgement to be enforced was delivered outside Nigeria, the Judgement Creditor may enforce such judgement in Nigeria by applying to a Superior Court in Nigeria. [See Section 4, Foreign Judgements [Reciprocal Enforcement] Act Cap 152 Laws of the Federation of Nigeria 1990]. The Application must be brought within 6years after the date of the judgement. The Applicant must also satisfy the Court that the judgement has not been wholly satisfied and that the judgement is enforceable by execution in the Country of the original Court.

The application for Regsitration of a foreign judgement is usually made at the High Court. However the effect of Section 64[2] of the Federal High Court Act, Cap 134 Laws of the Federation of Nigeria 1990, is to make registration of foreign judgements on matters which fall under the jurisdiction of the Federal High Court to be registerable only at the Federal High Court. Thus any judgement on maritime claims in a foreign country will be registerable only in the Federal High Court.

10.7] However as regards Foreign Arbitral Awards, the Federal High court may register such awards whether same relate to maritime claims [or other matters specifically mentioned as falling under the jurisdiction of the Federal High Court]. Section 57 Arbitration and Conciliation Act, Cap 19 Laws of the Federation of Nigeria 1990 provides as follows:

"arbitration" means a commercial arbitration whether or not administered by a permanent arbitral institution;

"commercial" means all relationships of a commercial nature including any trade transaction for the supply or exchange of goods or services, distribution agreement, commercial representation or agency, factoring, leasing, construction of works, consulting, engineering, licensing, investment, financing, banking, insurance, exploitation agreement or concession, joint venture and other forms of industrial or business co-operation, carriage of goods or passengers by air, sea, rail or road;

"court" means the High Court of a State, the High Court of the Federal Capital Territory, Abuja or the Federal High Court;" [underlining supplied].

10.8] The Admiralty Jurisdiction Decree No. 59 of 1991 also make provisions for the Enforcement of Foreign Judgements and Arbitral Awards by the Federal High Court.

"Section 2[2][c] thereof provides that a "proprietary maritime claim" includes a claim for the enforcement of a judgement given by a foreign Court. And Section 2[3][c] provides that a general maritime claim includes a claim for the enforcement of a foreign arbitral award within the meaning of the Arbitration and Conciliation Decree Cap 19 Laws of the Federation of Nigeria 1990."

10.9] Once the Judgement is registered, it is to be treated as a judgement of the Federal High Court and it may be enforced in the way and manner enumerated herein [see paragraph 10.3 above]

11] CONCLUSION:

The framework for putting together, successfully sustaining a maritime claim and enforcing any judgement or award made has been discussed in this paper. This paper is by no means exhaustive but only attempts to provide an overview of useful hints that will guide the maritime litigation Counsel. Each of the heads mentioned in this topic can be very technical and will require further extensive research into their different characteristics. I have deliberately endeavoured to rely heavily on case law as the copions quotes from the decisions of the Nigerian Courts referred to herein will show mainly because of the importance of precedents in litigation. Although the Rules of Court are the vehicle by which one wades through issues of procedure, the interpretation of such rules and indeed the substantive law by the Courts provide the ultimate guide to Counsel in deciding how to go about his Client's claims. Therefore within my limitations I hope I have been able to provide a useful layout and guide. Thank you for your attention.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.