Ship Arrest in Ghana, by David A. Hesse
Hesse & Hesse Barristers, Solicitors and Notaries
info@hesselawfirm.com
www.hesselawfirm.com
Tel: +233-21 778215/760768
Fax: +233-21 761197
Before independence from colonial rule was attained by Ghana in 1957, the law practised in this jurisdiction was largely English Law with such amendments as were provided under statute to suit local conditions. English traditions, rules of practice and procedures were largely followed. English authorities were freely cited and these were binding on our courts. Ghana attained independence on the 6th day of March 1957. Since then, the position is that English authorities have ceased to be binding; however, they, like the authorities of other countries having similar legal system, continue to have persuasive force and are accordingly cited and taken cognisance of in appropriate cases. As of now, the law of this country is made up of the 1992 Republican Constitution, statutes, existing law and the common law. “The Common Law” is made up of The Common Law as inherited from Great Britain as amended by changes introduced by the Constitution of Ghana, statute, decided cases, established doctrines and principles of customary law and the rules and doctrines of equity.
As may be expected, statutes enacted in this jurisdiction generally follow the form and substance of relevant legislation in the United Kingdom and other common law countries. This trend is more marked in legislation affecting Business Law.
Order 2 of the High Court Civil Procedure Rules provides that all civil proceedings must be commenced by Writ of Summons and must be filed with a Statement of Claim. Every Writ of Summons must contain concise statement of the nature of the claim or relief or remedy sought in the action. After the Writ of Summons has been filed in the High Court of Justice, a Court bailiff is assigned to effect service of the Writ of Summons and accompanying Statement of Claim on the Defendant.
In admiralty actions, the Writ of Summons is served on the Captain of the ship and a copy is posted on the ship.
After service of the Writ of Summons, the Plaintiff files an Ex Parte application for an Order for a warrant for the arrest of the ship.� Our Rules of Court provide that a warrant for arrest may be issued at any time after the Writ of Summons has been issued, but no warrant of arrest shall be issued until an affidavit by the party or his agent has been filed and the following provisions complied with:
(a) The affidavit shall state the name and description of the party at whose instance the warrant is to be issued, the nature of the claim or counter-claim, the name and nature of the property to be arrested, and that the claim or counter-claim has not bee stratified;
(b) In an action of wages or of possession the affidavit shall state the national character of the vessel proceeded against; and if against a foreign vessel, that notice of the commencement of the action has been given to the Consul of the State to which the vessel belongs, if there be one resident in Ghana, and a copy of the notice shall be annexed to the affidavit;
(c) In an action of bottomry, the bottomry bond, and if in a foreign language also a certified translation thereof, shall be produced for the inspection and perusal of the registrar, and a copy of the bond, or of the translation thereof, certified to be correct, shall be annexed to the affidavit;
(d) In an action of distribution of salvage the affidavit shall state the amount of salvage money awarded or agreed to be accepted, and the name, address and description of the party holding the same;
(e) The lodging of an undertaking in writing by the solicitor who applies for the issue of the warrant to pay the fees and expenses of the Marshal.
The application for an order for warrant of arrest not being on notice can be filed, heard and granted on the same day or the following day. After the grant of the order a bailiff of the High Court is assigned to serve the Order on the Captain of the vessel. A copy of Order is also served on the Harbour Master, the Port Authorities and Customs Excise and Preventive Service at the port where the vessel is berthed.
A defendant who is served with an Order of arrest may apply to the High Court of Justice which granted the Order to have the order set aside or provide adequate security for the satisfaction of the Plaintiffs´claim. If the defendant is able to provide adequate security to the satisfaction of the Court, the Court may vacate the order on terms and conditions as in the opinion of the Court is just and appropriate. Upon service of the order vacating the warrant of arrest, the Harbour Master and the Port Authorities will grant the Captain of the vessel unconditional leave to sail from the port of call.
Where the Defendant disputes the claim of the Plaintiff, our Rules of Procedure require the Defendant to enter an Appearance to the Plaintiff´s Writ of Summons within Eight (8) days of service of the Writ of Summons. The Defendant is required to file his Statement of Defence to Plaintiff´s claim within Fourteen (14) days after the entry of Appearance.
Under our Rules of Court a Plaintiff has a right to file a Reply to the Statement of Defence filed by the Defendant and to have the Suit set down for hearing.
It must be observed that admiralty actions do not travel beyond the order for arrest. In most cases, either the sum owed is paid immediately the vessel is arrested or satisfactory arrangements are made to provide security for the repayment of the sum owed.