Proper service of processes in admiralty action in rem

 

Introduction

The service of an originating process on a defendant is a threshold issue and condition precedent for the exercise of a court’s jurisdiction. Where there is no such service, a court or tribunal is deemed incompetent to adjudicate and make any binding pronouncement on a party not brought before it.

A court or tribunal cannot genuinely assume jurisdiction to entertain a suit in which processes are not served or are improperly served on the parties. Proceedings conducted in defiance of this basic requirement are a nullity, as any order made by a trial court or tribunal without the jurisdiction to do so will be null and void. (1)

Where a defendant is resident within the court’s jurisdiction, an originating process may be served without need for leave of court. However, where the defendant is resident outside the court’s jurisdiction, the Rules of Courts specify that a court order granting leave to serve the processes outside the court’s jurisdiction must first be obtained.

 In addition to obtaining leave of court, the applicant must ensure that the writ of summons is properly endorsed for service outside the court’s jurisdiction.(2) Further, the writ must give the defendant no less than 30 days to respond to the claim.(3) Where there is more than one defendant to the claim and one or more are resident outside the court’s jurisdiction, the writ must be issued as a concurrent writ and marked as such.(4) These requirements are mandatory and failure to comply with them is a fundamental defect that could render a writ of summons incompetent.(5)

Service of processes in admiralty proceedings

The service of processes in admiralty proceedings is mainly governed by the Admiralty Jurisdiction Procedure Rules 2011 and the Admiralty Jurisdiction Act 2004. An admiralty proceeding can be commenced either as an action in rem (i.e., against the ship or its cargo) or in personam (i.e., against the named shipowners or charterers).

 Where an action in personam is commenced against parties which are resident outside the jurisdiction of the issuing court, the writ must comply with the rules for issuance and service in such cases or be liable to be set aside. Where an in rem action is commenced against a ship, leave of court is not required as the ship would ordinarily be resident within the court’s jurisdiction.

Various questions can arise with regard to the service of processes in admiralty proceedings. For example, what happens if a ship (X) is named as the first defendant in a writ of summons, along with a second defendant which is merely referred to as the “owner of X”? Does the action cease to be one in rem? Further, where X is a foreign ship, is leave of court required to effect service on the second defendant?

Facts

The Court of Appeal’s recent decision in The MV “Kota manis” v Geepee Industries Nigeria Limited is instructive in this regard. (6) In this case, the respondents, as plaintiffs in the trial court, sued the Kota manis as first defendant, along with the owners of the Kota manis and PIL Nigeria Limited (Ship Agents) as third and fourth defendants, respectively, for claims resulting from a fire incident on board the first defendant vessel.

Without filing a statement of defence, the defendants raised a preliminary objection that, among other things, the writ did not comply with the rules for the service of the originating processes on the third defendant outside the court’s jurisdiction. The trial court overruled the defendants’ objection, holding that, among other things:

• the action was one in rem; and
• the writ had been properly issued and served in line with the Admiralty Jurisdiction Procedure Rules and the Admiralty Jurisdiction Act.

Dissatisfied, the appellants appealed to the Court of Appeal.

At the Court of Appeal, the appellants rehashed the arguments that they had presented to the lower court and urged the court to allow their appeal. The respondents argued that, among other things, the proceeding had been commenced as an action in rem and, as such, leave was not required to be obtained. They further argued that the writ had not been intended for service outside the court’s jurisdiction, as the third defendant was not a juristic person capable of being served personally in law.

Decision

In its ruling allowing the appeal, the Court of Appeal placed heavy reliance on Sections 97 to 99 of the Sheriffs and Civil Process Act and Order 3, Rule 20 of the Federal High Court (Civil Procedure) Rules 2009. It held that the writ was incompetent for failing to comply with the procedure for issuance and service of a writ of summons (on the third respondent) outside the court’s jurisdiction.

Unfortunately, the court paid no attention to the Admiralty Jurisdiction Procedure Rules or the Admiralty Jurisdiction Act in reaching its decision. By ignoring these acts, the court missed an opportunity to harmonise the jurisprudence regarding the service of processes in admiralty proceedings.

Order 5, Rules 1 and 2 of the Admiralty Jurisdiction Procedure Rules state that in an action in rem, in addition to the name of the ship, a relevant person to the claim must be specified in the writ by reference to ownership or another relationship with the ship. Under Order 6 of the rules, service in this instance is sufficient if served on the ship or other property on the ship within jurisdiction.

This position is restated in Section 7(1) of the Admiralty Jurisdiction Act, which provides that “a writ in a proceeding commenced as an action in rem in the Court may be served on a ship or other property”. By these provisions, it is evident that the inclusion of “the owners or Charterers of X” as a defendant in an action in rem does not change the nature of the action, but rather validates it.

The service of an originating process in this case suffices if it is served only on the ship – “the owners or Charterers of X” not being legal or natural persons in law obviating the need for leave of court. The position would have been different if the actual names of the shipowners had been stated on the writ of summons. Being juristic persons, they would have been served personally and, if they were resident outside the court’s jurisdiction, leave of court would ordinarily have been required.

Comment

In light of the above, there is a strong case for arguing that the Court of Appeal’s decision was reached per incuriam (i.e., through lack of care). It is hoped that the Supreme Court will conduct a fuller adjudication of all of the relevant issues and clarify the correct position as regards the service of originating processes in admiralty proceedings.

For further information on this topic please contact Enare Erim at Akabogu & Associates by telephone (+234 1460 55550) or email (enare@akabogulaw.com). The Akabogu & Associates website can be accessed at www.akabogulaw.com.

Endnotes

(1) Skenconsult Nig Ltd v Ukey (1981) 1 SC 6; Emiskip Ltd v Exquisite Industries Nig Ltd (2003) 4 NWLR (Pt 809) 898.

(2) Rules of Courts, Section 97.

(3) Id, Section 99.

(4) Id, Section 98.

(5) Skenconsult (Nig) Ltd v Ukey (1981) I S C 6; NEPA v Onah (1998) 4 NWLR (Pt 484) 680; Nwabueze v Okoye (1998) 4 NWLR (Pt 91) 664.

(6) CA/L/103/14.

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