Execution of the Warrant of Arrest

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 Six – Execution of the Warrant of Ship Arrest

Introduction The admiralty court exercises its jurisdiction in either of the in rem or in personam modes and the rules of procedure governing service of processes in each variant can differ significantly. As has already been seen from earlier parts of this series, cases involving ship arrest are those commenced in rem. They are chiefly regulated by the Admiralty Jurisdiction Procedure Rules (AJPR) 2011 and the Admiralty Jurisdiction Act (AJA) 2004 which provide for the obtaining of a warrant of arrest via an ex-parte application. In the circumstances, strict compliance with the provisions of these laws as they relate to service of the ex-parte order and execution of the arrest warrant is extremely important.

Executing the Arrest Warrant Under Order 6 of the AJPR, a warrant of arrest once issued shall be valid for a period of 6 months from the date of its issue and may be renewed for another period of 6 months. The warrant may be executed by the Admiralty Marshal or his substitute and shall not be executed on a ship or other property unless the writ of summons in the proceeding concerned has previously been served or is to be served concurrently with the execution of the warrant. Concurrent execution of the warrant with service of the writ is typically the preferred route for most claimants; thus, the proper mode of service of the in-rem writ is implicated in the execution of the arrest warrant.

Service of the In Rem Writ The in-rem writ is served by securely affixing a sealed copy of the process to a mast or some other conspicuous part of the ship or delivering the same to the master of the ship or where it relates to a property by securely affixing a sealed copy of the process to the property or to a package or container or storage facility containing the property. If access to the ship or property cannot reasonably be obtained, the process may be served on the ship or other property by handing or leaving a sealed copy of it with a person apparently in charge of the ship or other property. If that person refuses to accept service, placing a sealed copy of the process down in the person’s presence and telling him what the document is, will suffice.

Service outside jurisdiction? The combined import of Section 7(2) AJA, Order 2, Rule 2 and Order 7 Rule (1)AJPR is that an in rem writ can only be served when the res is within the court’s jurisdiction. Thus, where the ship owner or charterer resides or carries on business overseas, the typical requirements for leave of court to issue and serve such writs outside of the court’s jurisdiction will not be necessary. This will be so even where in compliance with Order 5 Rules (1) and (2) of the AJPR, such an owner or charterer is named by reference in the originating processes as the relevant person who would be liable in an action in personam. It is however advised that the naming of such relevant persons be done exclusively by way of a reference to their relationship with the ship. This is so as not to fall foul of recent decisions of the court of appeal on the subject.

Conclusion A court 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 or judgment made by a trial court or tribunal without the jurisdiction to do so will also be null and void. Service and execution of the in-rem writ and warrant of arrest may appear straight forward and merely administrative, but they are nonetheless threshold matters with serious implications. Sound legal guidance in this area is once again of uttermost importance.

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Next – Part Seven: Procedure for Release of a ship from arrest