Arrest of ship in Nigeria and the 2023 admiralty rules ( 2)

Continued from yesterday

AN arresting party seeking to take advantage of the new position in Nigeria is required by Order 7 rule 8 ( 2) of the new Rules to support his application with the original or certified true copy of the processes pending before the foreign court or arbitral tribunal. The arresting party is also required to submit an undertaking to indemnify the ship or the owners for losses suffered if it turns out that the arrest ought not to have been made. Finally, Order 7 rule 8 ( 5) of the new Rules provides that the original copy of the indemnity must be served on the ship at the time of executing the arrest.

Filing of an application for a warrant of arrest of ship

Another innovation introduced by the new Rules relates to the filing of an application for a warrant of arrest. Specifically, Order 7 rule 1( 2) of the new Rules introduced e- filing for application for a warrant of arrest of a ship. That is, a party seeking to arrest a ship in Nigeria is at liberty to file the application for warrant electronically or physically at the Admiralty Registry.

Interestingly, the e- filing envisaged by the new Rules is simplified as the new Rules only require the applicant to send the Portable Document Format ( PDF) copies of all relevant processes to the email address designated by the Admiralty Marshall. By Order 7 rule 1 ( 3) of the Rules, the Admiralty Marshall is required to provide email address for receipt of processes relating to arrest of ships in Nigeria. The new Rules further provide that payment for the processes shall be made online and evidence of payment forwarded to the designated email address.

The new Rules are, however, silent on the assessment of the processes sent to the designated email by the Admiralty Registry and the timeline for such assessment. No doubt, the assessment of the processes sent to the designated email must precede any payment by the applicant. It is therefore expected that upon receipt of the processes via email, the Admiralty Registry will assess the processes and reply to the email by providing the amount payable by the applicant. It is only upon receipt of the assessment from the Admiralty Registry that an applicant will make payment online and forward evidence of payment to the designated email.

Prompt assessment of the processes by the Admiralty Registry is key to success of the e- filing regime. Since the assessment of physical processes submitted for filing is usually done in a matter of minutes, it is expected that the Admiralty Registry should provide an assessment of the processes within 1 or 2 hrs of receipt of the applicant’s processes. Where an applicant submits incomplete processes, the Admiralty Registry should be able to respond to the email within 1 hr of receipt thereof.

Finally, the processes to file in order to arrest a ship in Nigeria remain the same. The only innovation is that there is now a prescribed format for the outcome of the search required to be made in the caveat book. In practice and prior to the new Rules, the outcome of the search made in the caveat book is usually written on the applicant’s application to conduct search in the caveat book.

However, under the new Rules, the Admiralty Registry is to issue a report of the search as in Form 8A which the applicant will file along with other processes. It is not clear from the new Rules whether a search in the caveat book can be undertaken online. It is suggested that the Admiralty Registry should make relevant arrangements to facilitate a party to conduct search in the caveat book online without the need for physical contact with the Admiralty Registry.

The hearing and determination of an application for a warrant of arrest of ship

Prior to the new Rules, no timeline was in place for the hearing of an application for the arrest of ships in Nigeria. However, given the nature of the application which is always ex parte, the Federal High Court usually entertains the application expeditiously. This notwithstanding, there were cases of such application being heard after one week of filing. Late hearing of an application for a warrant of arrest of a ship usually gives room for a ship sought to be arrested to leave or escape the jurisdiction of the court.

By Order 7 rule ( 1) ( 5), the new Rules in clear terms now specifies that any application for warrant of arrest of a ship shall be heard and determined within 24 hours of filing of the application where practicable. Notably, by Order 7 rule 1 ( 6) of the Rules, the hearing and determination of the application for warrant of arrest of a ship could be conducted physically or virtually on any day inclusive of Sundays or public holidays.

This innovation as regards the timeline for the hearing and determination of an application for warrant of arrest of a ship in Nigeria is quite commendable. The new Rules clearly ushered in a fast- track regime where applications for warrant of arrest are given priority over and above any other application filed at the Federal High Court. The necessary implication of Order 7 rule ( 1) ( 5) of the new Rules is that an application for warrant of arrest of a ship is required to be heard and determined on the day of filing of the application or latest the next day after the filing of the application. In this regard, it is immaterial that the next day is a public holiday or a Sunday.

Ordinarily, the Federal High Court does not hear matters on Sundays or public holidays. For the Federal High Court to hear any urgent matter on a public holiday or on Sunday, there is usually an application via Summons for such hearing.

However, the new Rules clearly dispense with such application for urgent hearing by providing that the hearing of an application for arrest of ship shall be determined within 24 hrs and may be done on a Sunday or public holiday. That said, a commercial party wishing to have its application determined on a Sunday or public holiday may do well to liaise with the Admiralty Registry to confirm the availability of the Judge for the hearing and determination of its application.

The practice and procedure of the admiralty jurisdiction continue to evolve globally, and Nigeria is not left out. The Federal High Court which is imbued with original admiralty jurisdiction in Nigeria can now order the arrest of a ship to aid arbitration or foreign proceedings and there is no need to bring the substantive claim before the Nigerian court. The simplification of the filing processes and the timeline for the hearing and determination of an application for warrant of arrest of a ship are quite commendable innovations by the new Rules. These innovations have properly positioned Nigeria as admiralty friendly jurisdiction for arresting parties. It is expected that there will be a corresponding increase in admiralty litigation and issues in Nigeria. Concluded Ozuo is a Port Harcourt- based lawyer.