An Analysis of Admiralty Jurisdiction in Nigeria II

CONTRIBUTED BY PWAVENO DITTO

INTRODUCTION

Admiralty jurisdiction holds paramount importance within Nigerian legal framework and its significance is heightened by the fact that the government is actively working to ensure that the country’s maritime resources are exploited efficiently and sustainably, therefore promoting foreign commerce and investment and benefiting the economy overall. The Federal High Court is vested with exclusive jurisdiction over admiralty matters.^[1] However, there seem to be several issues bedevilling the effective exercise of this jurisdiction by the Court, owing to the lack of a proper legislative guide on the extent of the powers. An analysis of the subject is therefore essential to explicate these issues which, no doubt, have a significant influence on the nation’s marine economy.

In the first part of this article, the history of admiralty jurisdiction in Nigeria as well as the extant legal framework governing the exercise of the judicial powers in the nation were examined. In this part, we will proceed to examine the types of maritime claims and actions under Nigerian law, as well as some intricacies, which accord the exercise of the jurisdiction in the Nigerian justice system.

TYPES OF CLAIMS UNDER THE ADMIRALTY JURISDICTION ACT

Section 2 of the Act provides for two fundamental types of claims, which may be made in a maritime action, and they are

1. Proprietary Maritime Claims

A maritime claim achieves proprietary status when it pertains to matters such as possession, ownership, title, or any stake or interest in a vessel. This classification also encompasses the enforcement of a judgment against a ship or any other property within the scope of an admiralty action in rem, etc.^[2]

1. General Maritime Claims.

Conversely, a general maritime claim involves claims made either in personam or in rem against a ship or an owner. Such claims may include a claim arising out of bottornry (loans to shipowners whose repayment depended on the safe completion of a voyage),^[3] or claim for an insurance premium, or a mutual insurance call, in relation to a ship, or goods or cargoes carried by a ship, etc.^[4]

TYPES OF ACTIONS IN MARITIME CLAIMS

A maritime claim may be pursued either by an action in rem or in personam.^[5] An action in rem is an action brought against a property (res) which may be a ship, cargo or such other maritime asset. In this type of action, the asset is the target regardless of the owner and the suit may aim at either the recovery of a debt, seeking forfeiture due to illegal activities, enforcement of a lien or charge, etc.^[6]

In the case of C. S. Inc. v. “Cindy Gaia”^[7] the Court held that for an admiralty action to be maintained as an action in rem, it must be established that the claim falls within the admiralty jurisdiction and claims provided in section 2 of the Admiralty Jurisdiction Act. Thus, the fact that a claim relates to a vessel, irrespective of how closely related the circumstances giving rise to its coming about, does not conclusively bring it within an admiralty action.

On the other hand, an action in personam^[8] is commenced against a person being an owner, charterer or operator of a ship. Such suit is targeted at an individual or entity responsible for an alleged wrongdoing or breach and the aim is to compel such person to make restitution for the wrong.^[9]

A significant distinction between actions in rem and in personam lies in their enforceability. In an action in personam, judgments can be enforced against the assets of the defendant, irrespective of the nature of the claim. In contrast, in an action in rem, judgments are enforceable only against the specific ship involved in the proceedings. They cannot extend to a ship owner who has not appeared to defend the action or to any of their other ships or assets.^[10]

As illustrated in the case of Pacers Multi-Dynamics Ltd v. The M.V. Dancing Sister & Anor^[11], when a ship is arrested in an action in rem, it serves to compel the ship’s owner to appear and defend the case. However, any judgment resulting from such an action does not bind an owner who has not participated in the proceedings.

LEGAL INTRICACIES IN ADMIRALTY JURISDICTION IN NIGERIA

While the subject of admiralty jurisdiction may, on paper, seem to be a walk in the park, it is in practice a herculean task deciphering what matters fall within admiralty jurisdiction and what matters do not or what claim ought to be brought in what manner among other things. Courts have often been faced with questions of whether a subject matter falls within the admiralty jurisdiction of the Federal High Court or same can be competently handled by other courts of coordinate jurisdiction, as not all claims relating to a vessel fall within an admiralty jurisdiction. These among others reveal the complications, which the legal system still experiences on the subject of maritime jurisdiction.

To begin with, an examination of the case of ANCOMARINE SERVICES CO. LTD. vs. THE M/V SAM PURPOSE (EX-TAPTI) & ORS.^[12] would reveal that the subject of whether a claim in Court ought to be an action in rem or in personam, may well be a knotty issue for the court to decide. In the said case, the Court had to decide among other things whether an arrest of a ship was lawful. In doing so, the Court of Appeal stated that the construction of the originating process ought to be examined to decide whether the action filed at the lower court was one in rem which could ground a valid arrest of the ship or one in personam. The Plaintiff at the lower Court had supposedly filed an action in rem, hence the application for and grant of the order of the arrest of the ship. However, the Court, on appeal, stated that the action was in personam as, in an action in rem, a Plaintiff is not expected to sue or join the owners of the ship. Hence where an owner is joined by the plaintiff in an action in rem, such action becomes in personam, having lost the distinctive features of an action in rem.

Going further, in the case of THE VESSEL OF MT SAM PURPOSE (EX MT.TAPTI) & ANOR V. AMARJEET SINGH BAINS & ORS,^[13] the Respondents (Plaintiffs at the trial Court) vide an action in rem sought for reliefs for unpaid wages of crew members, admiralty marshal expenses, the arrest and detention of the vessel, etc. Upon the grant of the application for the arrest and detention of the ship, the appellants entered a conditional appearance, challenging the jurisdiction of the Court. Relying on Section 254C (1) (a) and (k) of the Constitution, they contended that an action bordering on the unpaid wages of an employee or worker comes with the jurisdictional competence of the National Industrial Court and not the Federal High Court.^[14] The trial Court however rejected this argument and upon appeal, the Court agreed with the appellant, starting further that the provisions of Sections 2(3) (r) and 3 of the AJA which confers exclusive admiralty jurisdiction on the Federal High Court in respect of claims for wages of crew members or masters, or an amount an employer is obligated to pay to an employee whether under a contract or operation of law, is inconsistent with the Constitutional provisions delineating the powers of the NICN with respect to unpaid wages of workers and therefore null and void. It has however been argued that apart from the fact that the said powers provided under Sections 2(3) (r) and 3 of the AJA are derived from Section 251 (1) (g) of the Constitution, it cannot be the intendment of the lawmakers that the jurisdiction of the Federal High Court be ousted by Section 254C (1) (a) and (k) of the Constitution.^[15] This is especially so as an action for unpaid wages is enforceable by an action in rem under the Federal High Court’s admiralty jurisdiction. Under this procedure, the Court is empowered to order the arrest of a ship as a Plaintiff has a maritime lien on same, to be discharged upon payment of his wages, a power, which cannot be exercised by the NICN.^[16] Moreover, pursuing such action in personam may require the naming of specific owners of the vessel, which information may not be available to a Plaintiff, thereby making such action difficult.^[17] It is thus submitted that the literal interpretation of the above constitutional provisions has far-reaching effects.^[18]

In the case of BUA INTERNATIONAL LTD V. MEDITERRANEAN SHIPPING CO (NIG.) LTD & ANOR^[19] the Court had to determine whether a transaction for the carriage of goods by sea, in which goods had been discharged from the vessel, fell within the exclusive jurisdictional competence of the Federal High Court. In the said case, the Appellant argued that pursuant to the provisions of the Constitution and the Admiralty Jurisdiction Act, any contract for the carriage of goods by sea and other ancillary matters falls within the admiralty jurisdiction of the Court. The Respondent, on the other hand, argued, which was agreed with by the Court of Appeal, that for an action to fall within the admiralty jurisdiction of the Court, the goods or cargo must still be aboard the ship or vessel but once the same has been discharged either in the harbour or delivered to the agreed destination, same no longer comes within admiralty jurisdiction irrespective of the fact that the transaction involved a bill of lading. To this end, the Court held that the matter was within the jurisdiction of the High Court of Lagos state.

In the case of TSKJ NIGERIA LIMITED VS. OTOCHEM NIGERIA LIMITED^[20] the apex court had to decide whether a contract for the hire and use of a houseboat, was not within the jurisdictional competence of the Federal High Court, having been instituted at the Rivers State High Court. The pillar of the argument of the Appellant was the fact that a houseboat falls within the definition of a ship under Section 26 of the AJA. The Supreme Court, however, rejected this argument, stating that it is not in all cases in which a ship is involved that the admiralty jurisdiction of the Federal High Court can be invoked. The court held the relationship between the parties was a simple contractual one it does not come within the definition of maritime claims under section 2 of the Act.

Nevertheless, it has been argued that this approach may warrant the need to clearly delineate the admiralty jurisdiction of the Federal High Court, one more time. This is because Section 2 (3) (f) of the AJA brings an action for the use or hire of a ship (which has been defined to include a houseboat) within the exclusive jurisdiction of the Federal High Court but in this literal interpretation, the Court believed that the action is for the recovery of unpaid hire rentals which constituted a breach of contract.^[21]

In the case of F.D.D LTD & ANOR v. FAICECK PETROLEUM LTD,^[22] the Court stated emphatically that an action for the supply of goods by sea is not an admiralty action. Thus, the mere fact that the contract involved in the case is for the supply of PMS, which was to be carried by the 2^nd Appellant (the vessel), does not bring the action under admiralty jurisdiction.^[23]

Finally, in the case of FELSHADE INT’L (NIG.) LTD V. TRAFIGURA BEHEER B.V. AMSTERDAM^[24] The Court had to decide whether a simple contract, albeit, for the carriage of cargo by sea, fell within the admiralty jurisdiction of the Federal High Court. The Court restated the fact that if the cargo had been damaged aboard the ship, it could have competently been considered an admiralty action. However, because the goods had been delivered but the grouse of the Appellant was of an inferior quality, it is not an admiralty matter.

The above analysis no doubt explicates the complications surrounding admiralty jurisdiction in Nigeria. Bringing this to the fore is particularly important at this time as the nation is set to harness, more substantially, the economic benefits of the blue economy. The principal duties of the Ministry of Marine and Blue Economy include the responsible and sustainable use of Nigeria’s marine resources, harnessing the economic and other benefits attached to same, and fostering marine industries among others. Thus, certainty in admiralty jurisdiction in Nigeria will no doubt impact the maximum use of the nation’s marine resources, foster international trade and improve the economy. Where a legal system is uncertain, investment potentials are reduced and as such, the economy cannot thrive. It is therefore expedient at this time to revisit the legal corpus of admiralty jurisdiction in Nigeria. There is a need for constitutional certainty in relation to the provisions of Section 254C (1) (a) and (k) and 251 (1) (g), inter alia and the proper delineation of the powers of the courts of coordinate jurisdiction, among other reforms.

While the Admiralty Jurisdiction Procedure Rules 2023 is indeed a commendable effort, there is a need for the revisiting of the enabling Act and bringing its provisions into conformity with present-day realities, taking cognisance of the peculiar issues, which have been decided by the Courts. This is also important because the rules of procedure cannot, as a matter of law, confer jurisdiction on a Court.

Moreover, with the constantly evolving nature of human society, and the rise of new technologies, it is submitted that there is a need at this time for a review of the AJA. As Nigeria is a pro-technology nation and a key player in the tech industry in Africa, it is believed that innovations such as autonomous vessels and other tech-driven maritime inventions will be welcomed in Nigeria. Hence the legal landscape ought to be pro-active in this regard.

CONCLUSION

The subject of admiralty jurisdiction is an important one in the Nigerian legal terrain. Its importance is further underscored by the fact that the government is taking active steps towards ensuring that the nation’s marine resources are used efficiently and sustainably, fostering international trade and investment and improving the economy generally. However, the legal framework delineating admiralty jurisdiction in Nigeria seems to be fraught with practical procedural challenges. It is thus, essential that the subject receive legislative attention as only a certain legal system can foster private-sector investment and international collaborations.

KEYWORDS

Blue economy, federal ministry of marine and blue economy, Admiralty jurisdiction, legal framework for admiralty jurisdiction in Nigeria, admiralty jurisdiction act, admiralty jurisdiction procedure rules 2023, admiralty marshal, admiralty judges, proprietary maritime claim, general maritime claim, maritime lien, statutory lien, action in rem, action in personam.

1. Section 251 (1) (g) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. ↑
2. Section 2(2) of the Act. ↑
3. See Gerda Reith, ‘Uncertain Times: The Notion of ‘Risk’ and the Development of Modernity,’ Time & Society, (2004) 13(2-3), 383-402 available at https://doi.org/10.1177/0961463X04045672 accessed on the 20th of March 2023. ↑
4. Section 2(3). ↑
5. See Opasanya, Oluseye and Ganikale, Yusuf, ‘Limitation of Liability in Maritime Claims in Nigeria’, The Gravitas Review of Business & Property Law – 2018 Vol. 9 No. 3, Available at SSRN: https://ssrn.com/abstract=3454554 accessed on the 20^th of March 2024. ↑
6. Rhein Mass Und See & Ors. V. Rivway Lines Ltd. (1998) LPELR-2948 (SC); Bronwen Energy Trading Ltd. V. Oan Overseas Agency Nigeria Ltd. & Ors. (2014) LPELR-24111 (CA); And M. V Breughel & Ors. V. Mondivest Ltd. (2018) LPELR-44728(CA) ↑
7. (2007) 4 NWLR [Pt. 1024] 222 at 244 ↑
8. See section 5 of the Act. ↑
9. Deros Maritime Ltd. V. M.V. “Msc Apapa” & Ors. (2014) LPELR-22720(CA) ↑
10. M.V Zack Metal Co. vs International Navigation Corporation (1975) A.M.C. 720) see Bambale Y. Yahaya, ‘Maritime Law II’ National Open University of Nigeria available at https://nou.edu.ng/coursewarecontent/Law%20532%20Maritime%20law%20II.pdf accessed on the 26^th of February, 2024. ↑
11. (2012) LPELR-7848(SC) ↑
12. (2018)LPELR-46763(CA), ↑
13. CA/LAG/CV/419/2020 ↑
14. See also the unreported decision of Assuranceforeningen Skuld (GJENSIDIG) v. MT “Clover Pride” & Anor FHC/L/CS/1807/2017 ↑
15. See Chijoke Ani and Chinwe Iloka, ‘Delineating Jurisdictional Indicators of Maritime Claims in Nigeria: The Case of Unpaid Crew Wages of The Vessel MT Sam Purpose (EX MT TAPTI)’ International Review of Law and Jurisprudence Volume 3, No 3, 2021, available at https://www.researchgate.net/publication/358432633_DELINEATING_JURISDICTIONAL_INDICATORS_OF_MARITIME_CLAIMS_IN_NIGERIA_THE_CASE_OF_UNPAID_CREW_WAGES_OF_THE_VESSEL_MT_SAM_PURPOSE_EX_MT_TAPTI accessed on the 22nd of March, 2024. ↑
16. Ibid. ↑
17. See Enarie Erim, ‘Claims For Unpaid Crew Wages Unenforceable in the Federal High Court’ (LEXOLOGY, 2018) available at https://www.lexology.com/library/detail.aspx?g=3d89a5cf-94e4-4d68-9428-f5086bcdcd4b accessed on the 22^nd of March 2024. ↑
18. For a detailed discussion, see Chijoke Ani and Chinwe Iloka, op cit. fn13. ↑
19. (2018) LPELR-44794 (CA) ↑
20. (2018) 11 N.W.L.R [Pt. 1630] 330 ↑
21. For a succinct discussion see Opeyemi A. Adekoya, ‘Admiralty Jurisdiction of The Federal High Court: A Critique Of The Judgment Of The Supreme Court In Tskj Nigeria Limited Vs. Otochem Nigeria Limited (2018) 11 N.W.L.R [Pt. 1630] 330’ Social Science Research Network, 2022. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4002564 accessed on the 22^nd of March, 2024. ↑
22. (2020) 11 NWLR (Pt. ) 535 ↑
23. See also the cases of Chevron (Nig.) Ltd. V. Lonestar Drilling (Nig.) Ltd (2007) 16 NWLR (pt. 1059) 168. ↑
24. (2020) 6 Commercial Law Reports of Nigeria 122 ↑