Synopsis
As a global practice, Maritime holds a significant space in international and local trading. To reflect modern-day realities that aid cross-border and municipal shipping transactions, both local and international legal regimes must play substantial roles, and in particular, domestic Courts, where most maritime disputes are commenced, should remain progressive in reflecting these realities. In this regard, and in the exercise of his powers1 as Chief Judge of the Federal High Court ("FHC"), Hon. Justice John Terhemba Tsoho (the "Chief Judge") passed2 the Admiralty Jurisdiction Procedure Rules 2023 (the "AJPR 2023" or the "Rules").
The AJPR 2023 revokes the outdated Admiralty Jurisdiction Procedure Rules 2011 ("AJPR 2011") and introduced several transformative changes aimed at simplifying Nigeria's admiralty practice, blurring certain technicalities in Nigeria's admiralty space, and expediting the resolution of admiralty matters in Nigeria.
Notable Features of the AJPR
Below are the notable introductions of the AJPR 2023:
Establishment of Admiralty Divisions and Designation of Admiralty Judges of the FHC
The AJPR 2023 empowers the Chief Judge to establish Admiralty Divisions within relevant judicial divisions of the FHC3 . As part of this process, it is expected that judges with cognate knowledge and experience in admiralty law and practice will be designated as judges of these Admiralty Divisions, and they shall exclusively preside over all admiralty matters4 . There is no doubt that Admiralty practice, being a specialized area of law, requires the expertise of specially trained judges, and creating the Admiralty Divisions is a step in the right direction
Creation of Admiralty Registries and Appointment of Admiralty Marshal
The Rules introduce Admiralty Registries in the Admiralty Divisions overseen by the Admiralty Marshal or its Substitute. As prescribed under Order 2, Rule 5 of the AJPR 2023, the Admiralty Marshal or its Substitute's responsibilities include a range of crucial tasks, such as serving originating processes, executing arrest warrants, preserving and safeguarding arrested ships or other properties, moving vessels that are under arrest, arranging for release, valuation or sale of ships or other properties, and managing the proceeds of such sales.
Preservation of Arrest Warrant upon its Transfer
The AJPR 2023 ensures the preservation of arrest warrants even when an admiralty action in rem is transferred to a different Judicial Division where the subject of the maritime res is located or expected to arrive. As such, the arrest warrant issued by the Court in the previous Judicial Division remains valid and enforceable against the res in any Judicial Division located within the jurisdiction5 .
Accompanying Originating Processes for Actions Commenced by Writ of Summons
The AJPR 20236 more succinctly details the originating processes in an action in rem commenced by Writ of Summons filed before the FHC, in line with the current practices at the FHC. Along with the Statement of Claim and copies of documents to be relied on at trial, litigants must also frontload (i) a list and copies of documents to be relied on at the trial,7 (ii) a list of non-documentary exhibits, and (iii) a list of witnesses to be called at the trial.
Deposition to Witness Statements on Oath by Witnesses in Foreign Jurisdictions and Subpoenaed Witnesses
The Rules now recognize and permit the notarization of Witness Statements on Oath by notary publics or other persons authorized to administer oaths in foreign jurisdictions8. Additionally, it eliminates the need to file statements on oath of witnesses for subpoenaed witnesses at the commencement of the action for an action in rem commenced by Writ of Summons9. However, parties intending to subpoena/summon witnesses must serve them with Form 3 (Summons to Witness Requiring Subpoena) before filing the statements of these witnesses10 .
Procedure for the Recognition or Enforcement of an Arbitral Award
By Order 3, Rule 5 of the AJPR 2023, an application for the recognition or enforcement of an arbitration agreement or arbitral awards related to any maritime claim, either from a domestic or foreign arbitration proceeding, must be made through an Originating Motion. This is a most welcome development as it puts to bed the brewing issue regarding the mode of application.
Filing and Service of Originating Processes
Under the Rules,11 every originating process presented for filing must be marked with the date and time of presentation by the Admiralty Marshal, who shall subsequently arrange for service to be effected.
Parties in Actions in rem
Order 5, Rule 1 of the AJPR 2023 waives the previous requirement for Writ of Summons, in proceedings commenced as an action in rem concerning proprietary maritime claims12, to specify a relevant person13 as a defendant. On the other hand, a ship or other property must be specified as a defendant in a general maritime claim14 commenced as an action in rem15. This aligns with the position of the Nigerian Court of Appeal in the MV MUSTAFA Case16.
Service of Process
Per Order 6, Rules 1 and 2 of the AJPR 2023, service of the Writ of Summons (in an action commenced in rem against a ship or other property on board the ship at the time of service) by affixing a sealed copy of the process to a mast or other conspicuous part of the ship or by delivering same to the ship's master is deemed sufficient service of the Writ of Summons on the owners of the ship or other property. Likewise, service of the Writ of Summons (in an action commenced in rem against any property not on board the ship at the time of service) by affixing a sealed copy of the process to the property, or to a package, or container or on the storage facility containing the property is deemed sufficient service of the Writ of Summons on the owner of the property.
Notably, the Rules17 require service of Writ of Summons, a court order of arrest, and a warrant of arrest in an action in rem to be by physical service. Other processes in the action may, however, be served on the defendant through the defendant's known email address or through the Defendant's Counsel, where represented by Counsel. This digital-friendly approach enhances convenience and accessibility for all parties involved. It also permits the defendants' Counsel in actions in personam to accept service on behalf of the defendant where the Counsel undertakes in writing to accept service of the Writ of Summons or any other process in relation to the proceeding .
Under Order 6, Rule 15, the Court may, in an action in personam filed through an agent against a defendant ordinarily resident or carrying on business outside jurisdiction, order that service on the defendant or the owner of such ship or other property be done through any other mode of service acceptable to the court – this may include service on the defendant or owner of a ship or other property's last known place of business (through a reputable courier company operating a courier service across Nigeria or the relevant country) or email address.
Arrest of Ship and Other Property
In a significant move towards digitization, the AJPR 2023 recognizes physical and e-filing (in Portable Document Format (PDF)) of ex parte applications for a warrant of arrest of a ship or other property, with fees assessed and paid through designated electronic payment platforms19. It also sets a twenty-four (24) hours timeline from the date of filing (where practicable) for the hearing and determination of such application, which may now be conducted physically or virtually on any day, including Sundays and public holidays20.
In a bid to formalize the mandatory process of ascertaining that there is a (or there is no) caveat against arrest in place before an arrest application is lodged in relation to a ship or other property, the Rules now require the Admiralty Registry to issue a report of the outcome of any party's search of the caveat against arrest register as in Form 8A (Report of Search of Caveat Against Arrest Register).21
Furthermore, the Rules direct that a copy of the arrest order must be served on the Harbour Master of the Nigerian Ports Authority22.
To safeguard the interests of vessel purchasers (and their financiers), the Rules reiterate the provisions that abhor the issuance of an arrest warrant if the beneficial ownership of a vessel or other property has changed after the issuance of the Writ of Summons, except actions in rem based on a maritime lien commenced in relation to a general maritime claim23.
Footnotes
1. See Section 254 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 21 of the Admiralty Jurisdiction Act 1991 ("AJA").
2. Whilst the commencement date of the AJPR 2023 is said to be May 18, 2023, it was only published in the Federal Republic of Nigeria's Official Gazette on September 26, 2023, and the published copy was unveiled by the Chief Judge to the public in the second week of December 2023.
3. Order, 2 Rules 1 and 3 of the AJPR 2023.
4. Order 2, Rule 2 of the AJPR 2023.
5. Order 2, Rule 10 of the AJPR 2023.
6. Order 3, Rules 3 (1) and 4 (1) of the AJPR 2023.
7. This is also an inclusion to the documents required to be frontloaded for an action in personam via Writ of Summons
8. Order 3, Rule 3(2)(a), and Order 3, Rule 4(1)(e)(i) of the AJPR 2023.
9. Order 3, Rule 3(3)(ii) of the AJPR 2023.
10. Order 3, Rule 3(3)(iii) of the AJPR 2023.
11. Order 3, Rule 10(1) of the AJPR 2023.
12. As listed in Section 2(2) of the AJA.
13. As defined in Section 5(4) of the AJA.
14. As listed in Section 2(3) of the AJA.
15. Order 5, Rule 2 of the AJPR 2023. 16. MV "MUSTAFA" v. AFRO ASIAN IMPEX LTD & ANOR [2002] 14 NWLR (Pt. 787) 395 at 410-411, paragraphs F-A and paragraphs B-E (CA).
17. Order 6, Rule 3 of the AJPR 2023. 18. Order 6, Rule 14 of the AJPR 2023.
19. Order 7, Rules 1 (2), (3) and (4) of the AJPR 2023.
20. Order 7 Rules 1 (6)
21. Order 7, Rule 1(8) of the AJPR 2023
22. Order 6, Rule 5 of the AJPR 2023.
23. Order 7, Rule 1(10) of the AJPR 2023.
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