Famsville Solicitors

ENFORCEMENT OF SHIP MORTGAGE UNDER NIGERIAN LAW

Mortgaging a ship is a form of security wherein a ship owner (“Mortgagor”) gives to the lender (“Mortgagor”) an interest in a ship as a security for loan either by way of creating a statutory mortgage or a equity mortgage. The mortgage is consequently discharged upon payment of the principal sum and usually the interest.

Section 54 of the Nigerian Merchant Shipping Act 2007 (“MSA”) allows a vessel or a share in a vessel to be made a security for a loan or other valuable consideration. Upon entering a mortgage agreement, the mortgage may be registered at the Nigerian Ship Registry. One of the benefits of registering the instrument creating the mortgage at the ship registry is that, it takes priority over unregistered mortgage deeds. Where the Mortgagor is a corporate body, a charge may be registered at the Corporate Affairs Commission.

Section 57 of the MSA stipulates that if there are more mortgages than one registered in respect of a ship or share, the mortgages shall, notwithstanding any express, implied or constructive notice, be entitled in priority one over the other, according to the date on which each mortgage is recorded in the register and not according to the date of each mortgage itself. It is therefore important that mortgage agreement be registered as soon as executed by parties.

Under the Nigerian law, the procedure for enforcement of a ship mortgage is subject to a contractual right. Accordingly, the rights of a mortgagee are derived from specific terms agreed with the mortgagor. Usually, the loan documentation, which the mortgage is premised upon, will identify those events by the mortgagor, which give rise to the right on the part of the mortgagee to take enforcement action.

Identifying an event of default is not always straightforward because, in practice, certain defaults are difficult to prove, such as those relating to a breach of a material adverse change clause that has been drafted in deliberately wide terms.

Notwithstanding the above, where the mortgagor believes that an event of default has occurred, it will have been necessary to serve either a Notice of Default or Notice of Acceleration stating that the entire outstanding indebtedness is due and repayable. It is expedient that any procedural requirements like notice by emails or other means must be strictly complied with.

Mortgagee’s rights are thoroughly protected by Admiralty law in the Nigeria. A mortgagee can elect to use any of the following modes to enforce its rights on the mortgaged property.

 Arrest of the vessel and sale through the Courts.

A mortgagee may initiate action for enforcement of a mortgage at the Federal High Court in Nigeria or effect its vested right of vessel’s disposal or its share which is subject to the mortgage. A combined reading of Section 2 (2a) and Section 5(2) of the Admiralty Jurisdiction Act Cap A5, Laws of the Federation of Nigeria (“LFN”) 2004 (“AJA”) states that an action may be brought in rem in respect of claims relating to a mortgage of a vessel.

Under Nigerian law, a registered mortgagee enjoys priority after only the cost of enforcement, crew wages, salvage and damage claims.

One of the benefit of this mode of enforcement is that, after the vessel is sold, such vessel is free and clear of encumbrance whether registered or not. Accordingly, such vessel is protected in the hands of new owners from any claims against the old owners, even if those claims have the status in any jurisdiction of a maritime lien.

Taking possession of the Vessel.

Most Mortgages or Deeds of Covenants have a clause giving the mortgagee a right to take possession in the event of default. However, one of the challenges of this mode of enforcement is that, by taking possession, the mortgagee becomes liable to perform the existing contracts of the ship-owner and the vessel.

Another difficulty in this area is that the master may refuse to receive instructions from the mortgagee to sail the vessel out of jurisdiction.  However, it is frequently the case that the Master and crew are owed substantial arrears of wages by the time the mortgagee comes to enforce his mortgage, and a promise of prompt payment of those arrears of wages can often secure co-operation from the Master and crew.

Foreclosure and sale of the vessel

Usually, an instrument creating the mortgage may provide for the mortgagee’s power of sale. The mortgagee, upon an event of default, may exercise such powers. Where the instrument stipulates conditions for the exercise of that power, except the mortgagee complies strictly, the sale may be ineffectual.

One of the challenges with this mode of enforcement is that such sale will be subject to other encumbrances against the title, and the mortgagee will have to warrant that there are no other outstanding claims, which might be enforced against the vessel.

Conclusion

The above is not an exhaustive analysis of the enforcement procedure that may be enjoyed by a mortgagee.  The mortgagee may have other powers, such as the right to appoint a receiver. It may also have other security, such as an account charge, corporate guarantees and collateral security assets.

Before taking a decision on the mode of enforcement, it is important that a careful review of the powers of the mortgagee and the limitation be carried out. Such review should be carried out whilst ensuring that the interest of the lender is placed at the forefront so as to mitigate any loss which it may suffer.

 

 

 

Ridwan named Legal influencer for TMT- Africa and Middle-East in the Lexology Content Marketing Awards for Q4 2018

We are proud to announce that our Ridwan Oloyede, has been recognised as the Legal influencer for TMT- Africa and Middle-East in the Lexology Content Marketing Awards for Q4 2018. The winner is awarded for constantly producing useful, insightful legal content for Lexology subscribers.

According to Edward Costelloe, Managing Director, Lexology, “the quality of content that you produce keeps our platform the most powerful in the market.”

Ridwan was selected using a bespoke automated process to analyse Lexology readership data.

THE FEDERAL MINISTRY OF INTERIOR (FMI) ANNOUNCE INCREMENT OF CERPAC FEES

Background
Nigeria’s Minister of Interior, RTD Lt-Gen Abdulrahman Bello Dambazau through the Federal Ministry of Interior on 11th December, 2018 issued a new directive to increase the fee on Combined Expatriates and Resident Permit and Aliens Card (CERPAC) from $1,000 to $2000.
The CERPAC is a document that allows a non-Nigerian to reside in Nigeria and carry out an approved activity as specified in the permit, or to accompany a resident or citizen of Nigeria as a dependent. The card is widely used by expatriates resident or working in Nigeria.

Famsville authors the Nigerian chapter on Bribery and Corruption in the sixth edition of Global Legal Insights guide (GLI) 2019

Our white collar crimes and investigations practice group recently contributed to the Nigerian chapter on Bribery and Corruption 2019 in the Sixth Edition of Global Legal Insights guide (GLI). GLI Bribery and Corruption 2019 was edited by Jonathan Pickworth and Joanna Dimmock of White & Case, London offices.

The Bribery and Corruption 2019 covers topical issues on law and enforcement regimes, recent enforcement activity and policy, investigations, decision-making and enforcement, and proposed reforms in 29 jurisdictions.

Famsville announces Damilola Osinuga as a Partner

Famsville is pleased to announce the admission of Damilola Osinuga into the partnership with effect from January 1, 2019. Damilola will lead the firm’s Dispute Resolution, Maritime and Transport and Private Wealth Services practice groups. Prior to joining Famsville, Damilola has worked on significant local and multi-jurisdictional transactions spanning shipping, aviation, and finance.

He specialises in transportation and commercial litigation and has litigated on an extensive range of issues, including that pertaining to maritime, banking and finance, contracts, insolvency, commercial law transactions and general litigation both at trial and appellate levels. Damilola has advised several clients on the structuring of private wealth services. He has over the years gained invaluable experience working at the forefront of international maritime transactions valued at millions of United States Dollars, and involving a syndicate of international counsel.