Nigeria: Ship Detention Gone Rogue: A Critique Of The "HSOP" For Ship Arrest And Detention

Last Updated: 22 February 2018
Article by Emeka Akabogu

Introduction

In January 2017 Nigeria's Vice President, Prof. Yemi Osibajo SAN launched a document promoted by the Nigerian Navy and produced by the Federal Ministry of Justice called "Harmonized Standard Operating Procedures on Arrest, Detention and Prosecution of Vessels and Persons in Nigeria's Maritime Environment 2016." In his foreword to the document, the Attorney-General and Minister of Justice Abubakar Malami SAN expressed satisfaction that the document adequately addresses the issues of overlap of responsibilities of agencies. With the seal of approval of two eminent senior advocates, it was not surprising to hear the Chief of Naval Staff, Vice Admiral I.E. Ibas assert that the document is to provide "a consolidated guideline for harmonious management of arrests, detention and prosecution of vessels and suspects as well as seizure and forfeiture".

With costs often in millions (and occasionally in billions) of dollars, vessels are prized assets of major economic significance. They are typically purchased with bank loans, collaterised with tangible and intangible assets, manned by tens of people of often diverse nationalities, operated by multiple service providers and laden with cargo locking in interests of even more complex dimensions. Incidents that affect vessels are therefore almost always of considerable commercial significance across economic sectors and national jurisdictions. As a result, a document focused on "arrest, detention and prosecution of vessels" must be well-justified in law and procedure. It is my intention to show that the "Harmonized Standard Operating Procedures on Arrest, Detention and Prosecution of Vessels and Persons in Nigeria's Maritime Environment 2016" ("HSOP") does not meet that requirement. It cannot confer any powers or rights on the Navy or any other organization.  Any action founded on it will be an illegality unless otherwise statutorily justifiable.

Legal Basis

The HSOP is a set of guidelines. A detailed look at its provisions indicates that it is not stated to derive authority from any particular legislation. Clause 2 of the document makes a general assertion that it is based on "the statutory powers conferred on the Ministries, Departments and Agencies (MDAs) charged with maritime law enforcement activities." In reality the statutory powers of all the relevant MDAs are sourced from different independent statutes, none of which is exactly the same with the other. Administrative guidelines are often derived from a primary legislation which makes provisions of a general nature, with the guidelines offering more specific procedural direction. As a result such guidelines are often binding only to the extent that they are in congruence with the provisions of the primary legislation. Where a provision in a set of guidelines or regulations is determined not to flow from any particular provision in its primary legislation, it is void. This rule will obviously apply with greater force where the entire set of guidelines is not based on any statutory foundation as is the case with the HSOP. At best, it is a tool for administrative convenience. Any agency purporting to rely on it as a basis for their action can only be successful if the action it has taken is covered under its own establishing legislation.

Inconsistencies With Statutory Provisions

Clause 7 of the HSOP broadly provides that the "agencies" have a right to arrest any vessel or person involved in "any type of criminality". The breadth of this statement suggests a carte blanche in arrest of vessels. The "agencies" are not defined. It is not clear if "agencies" are members of a "Stakeholders Forum" constituted in Clause 2 of Part 1 to include Ministries of Defence, Justice, Agriculture, Transportation, Interior, Finance, Petroleum Resources and Environment with their respective relevant agencies. I will pay more attention for the purpose of this article to the Nigerian Maritime Administration and Safety Agency NIMASA, which under its establishing Act which for instance does not have the power to arrest any vessel involved in "any type of criminality". If NIMASA arrests a vessel for smuggling, it will be acting outside the scope of its statutory authority.

The HSOP confuses arrest with detention of ships contrary to established usage in admiralty practice. Whereas "arrest" will often refer to judicial orders constraining a ship's movement, "detention" is the constraint imposed by regulatory bodies of the type contemplated in the HSOP. However, the HSOP contains a definition for "arrest" but none for "detention", even though it defines "detaining officer". Its definition of "arrest" is the same with accepted usage for "detention".

Occasions for 'Arrest'

The guidelines set out a range of occasions when vessels will be liable to arrest including for operating 'without authorization', 'piracy/armed robbery', 'stealing economic resources of Nigeria', 'illegal bunkering', 'unauthorised movement of petroleum products', 'unauthorised research activities', 'drug and human trafficking', 'transportation of slaves', 'navigating in unauthorized areas', 'navigating without regard to ROR', use of outboard engine 'beyond approved capacity', 'non-compliance with Cabotage Act' and 'any other illegal maritime activities not specified in this HSOP'. Other activities are included which I have not listed, with many requiring very specific technical evidentiary burden beyond mere suspicion. Yet the guidelines did not specify particular organisations which may arrest in respect of particular offences, suggesting that any of the 'agencies' listed may arrest for any of the offences listed. This is a recipe for likely regulatory anarchy and certain impunity.

'Order of Court'

Clause 8 goes further to vest power of arrest on all 'law enforcement agencies as specified in their various establishment Acts', adding that 'such powers shall include an Order of Court of competent jurisdiction'. Firstly, the power of arrest of all 'law enforcement agencies' should be based on reasonable and informed suspicion which for a good number of the offences may only be determined on technical indices which the law enforcement agencies simply do not have. To satisfy the requirement of reasonable and informed suspicion, the arrest should be at the instance of a technical regulator such as the DPR, NIMASA, Department of Fisheries or other relevant agency. Such provisions have not been made. The requirement of an 'Order of Court' is obviously an attempt to give the arrest a veneer of due process. Unfortunately, this will serve to complicate things as the guidelines cannot impose a requirement which many of the individual agencies do not have in their statutes. NIMASA for instance does not have an express provision in its Act requiring an order of court to detain ships, though under section 51(1) it may with the approval of the Minister, make regulations to regulate the process. Such regulations can include the requirement of an order of court. Interestingly, the Coastal and Inland Shipping (Cabotage) Act expressly authorizes enforcement officers to detain ships in relevant circumstances without an order of court. Therefore the mandatory requirement of an 'Order of Court' under the guidelines will only fester regulatory confusion. It is also fraught with practical difficulties for implementation, with the procedural hurdles of obtaining a court order not conducing to likely imperatives of immediate detention.

Detention Pending Prosecution

Clause 13 suggests that vessels will be arrested and investigations conducted after the fact. By providing that 'the agency to take over an arrested vessel shall depend on the nature of offence committed', the presumption is that the arresting authority (ostensibly the Nigerian Navy) would have arrested the vessel without the involvement of the relevant agency. It is not clear what considerations would have informed the decision-making in arriving at the arrest.

Further confusion is stoked by Clause 15(3) which provides that in the event of the inability of an agency to take custody of a vessel, 'the agency is to hand over to the Nigerian Police Force or the Admiralty Marshall of the Federal High Court pending prosecution'. It further provides in Clause 15(4) that the Nigerian Navy may be in custody of the arrested vessel on behalf of the relevant agency pending prosecution. These provisions harbor two challenges, both relating to legal validity. In the first place, it appears to sanction detention pending prosecution, which goes against the constitutional guarantees of fair hearing and presumption of innocence. Secondly, the Admiralty Marshall is not a general receiver of all detained vessels; the office can only act within the expressly provided mandate of the Admiralty Jurisdiction Procedure Rules under the Admiralty Jurisdiction Act. In the absence of statutory authority, an arrested vessel cannot be legally handed over to the Admiralty Marshall as proposed.

Orchestrated Abandonment

In Clause 17(1) the guidelines provide that 'in the event of failure to reclaim seized and detained vessels by its owners for a period of 12 months the Agency in custody of the seized item as the case may be, shall reserve the power to obtain an order of forfeiture and disposal from a court of competent jurisdiction.' In effect, the burden of reclaiming the arrested vessel is with the owner, irrespective of the circumstances of the detention. The provision does not give a precise reference point for determining a failure to claim. Thus it is not clear whether time will start counting immediately after arrest, or after any proceedings relating to the vessel or after any relevant exchanges. It also does not provide for notice to be given to the owner of the vessel and the manner of same. These are important issues in view of developments in practice which often see vessels detained without clear-cut definition of responsible authorities, persons to engage with or even benchmark procedures.

Conclusion

The idea of harmonized guidelines suggests the existence of a range of agencies with diverse powers of ship detention. To some extent, this may be true – NIMASA, NPA, Customs and the Navy are some bodies statutorily empowered to detain ships under different rules. Harmonized rules however suggest sameness or similarity of offences, enforcement regimes, personnel and assets. This is hardly the case with the HSOP, as different statutes regulate the operations of different agencies. A proper attempt to harmonise rules will be based on an appreciation of the similarities and differences of the statutory provisions governing detention for each of the relevant agencies, an area in which the HSOP unfortunately falls considerably short. It is a not-so-well scripted document promoted by the Nigerian Navy which attempts to validate arbitrariness. From an inverted prism, this may be understandable in view of the considerable judgment debt hanging over government bodies arising from illegal detention of vessels.

Despite its potential, the document has ignored the single most significant cause of the judgment debts that constitute its primary mischief – wrongful and continued detention of vessels over a long period with daily costs and losses counting. It ignores the need for strict timelines to be in place where a vessel is arrested on mere suspicion, and that options for bail-bond must be provided and distinction made between owner of vessel and owner of cargo with procedure for disentangling and ring-fencing both interests in the determination of rights.

At the end, the HSOP, despite the high-level executive fanfare that attended its launch, is a light-weight document without legal potency, drafting elegance and operational clarity.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions