The Nigeria Ship Arrest Series is published by Akabogu & Associates, a Nigerian law firm. It will run weekly through the first quarter of 2021 to provide ship and cargo interests related to Nigeria with information to make quick decisions when faced with ship arrest situations.

Part Eight – Challenging the Order of Ship Arrest

 

Introduction When faced with a ship arrest situation, the ship-interest – depending on the circumstances – may opt to post bail to secure the ship’s release from arrest or bite the bullet and challenge the arrest order pronto. The decision as to which immediate course to take is many times not solely dependent on the likelihood of a successful challenge.

 

Commercial or logistics considerations may require the prudent ship owner to shelve his legal rights – even if temporarily – in order to secure the asset’s prompt release. Thereafter, applications may be brought before a judge seeking to either discharge the bail bond or to strike out or dismiss the suit in its entirety. These preliminary steps deployed to short-circuit a claimant’s substantive claim (or more particularly the security obtained for it) are usually predicated upon legal and/or factual situations – some of which are highlighted hereunder.

 

When the court lacks of jurisdiction The jurisdictional scope of Nigeria’s admiralty court remains a contemporary feature of law reports in spite of the preponderance of judicial pronouncements on its several visages.

 

This is probably on account of the seeming insatiability of litigants and their counsels in pushing the bounds of circumstances that may be crammed into the prescribed list of maritime claims as defined by the Admiralty Jurisdiction Act. Thus, clearly simple contracts are often passed off as maritime claims1 while circumstances which – on cursory appraisal – appear to be in tandem with statutory provisions may – upon deeper introspection – miss the mark significantly2.

 

In every particular situation however, the job of the defendant’s lawyer is to seek out any chinks in the armor and exploit them maximally. A successful challenge to the court’s jurisdiction will thus not only result in the setting aside of the arrest order but will also terminate the suit in limine.

 

Claim not in rem It was noted in previous installments of the series that only a subset of the maritime claims in particularly prescribed circumstances qualify to be actionable in rem and that only such in rem actions can ground ship arrests. The allure of obtaining pre-judgment security for a claim is however often too difficult for some claimants to abjure.

Consequently, false or unsustainable averments could have been put forward to secure the ship arrest via the ex parte application in the first place. In such circumstances, a defendant may apply to the court to set aside the order of arrest or discharge any bail bond provided upon his furnishing cogent grounds in that regard.

 

By the tenure of the Admiralty Jurisdiction Procedure Rules (AJPR 2011), not only the named defendant but also other persons whose rights and interest are impacted by the ship arrest may apply to court to challenge the arrest order in this respect.

 

Conclusion In in rem actions, the successful challenge to an order of arrest knocks the wind out of the claimant’s sails. The keys to effective deployment of this strategy may lie in knotty areas such as decoding the very essence of the parties transactions or even in mundane matters such as an unsigned affidavit for instance.

 

Whichever is the case, the trained eyes and expertise of counsels in this specialist area are always invaluable to the litigant whose ship is under arrest.

For more information contact info@akabogulaw.com, 2347043293271.

Next – Part Nine: Caveat against arrest

 

Footnotes:

1 See M.R.S. Oil & Gas Company Limited V. Dock Management Limited (2016) LPELR-42251(CA), Petro Jessica & Anor V. Leventis Technical Co. Ltd (1992) NWLR (Pt. 244) 675

 

2 See TSKJ Nigeria Limited V. Otochem Nigeria Limited Sc.118/2009 (2018) LPELR-44294(SC) for instance, wherein the appellant contended that the claim of the respondent arose out of an agreement to hire a ship which pursuant to the Admiralty Jurisdiction Act fell squarely within the jurisdictional competence of the Federal High Court. The Supreme Court rejected this contention holding that the contract to hire the house boat was a simple contract and that the Respondent’s case was one for recovery of simple debt.