COKER & ANOR. V. COKER

• Pages: 17-19

COKER & ANOR. V. COKER

17

sum advanced to the Master of the ship, that it is well settled that moneys advanced

for the procuring of necessaries stand on the same footing as necessaries sup-

plied. See The

Mogileff

(1)

and the cases referred to therein.

In these circumstances there can, I think, be no doubt that it was open to the

5

plaintiff to institute an Admiralty aci ion in rem.

I

mention the point because the

jurisdiction in Admiralty cases is now transferred to this Court, section 10 of the

Federal Supreme Court (General Provision) Ordinance, 1955, and any proceed-

ings to enforce payment of the judgment in this case may properly be instituted

here.

10

The question we have to determine, however, is whether this was an action in

rem or personam.

An action in rem is one in which the subject matter is itself sought to be affected,

and in which the claimant is enabled to arrest the ship or other property, and to

have it detained, until his claim has been adjudicated upon, or until security by bail

15

has been given for the amount, or for the value of the property proceeded against,

where that is less than the amount of the claim.

Whatever the plaintiff's intention may have been when the action was com-

menced, I am in no doubt that it proceeded as one in personam. No steps to ar-

rest the rest were taken, no bail or payment into Court in lieu thereof was required,

20

and judgment was eventually entered, by consent, against the defendants person-

ally. I would point out that if the proceedings had throughout been solely in rem,

the judgment or decree, in accordance with the practice of Courts of Admiralty,

would not have, as in this case, condemned the defendants to payment of the

amount awarded and costs, but would have condemned the ship alone.

25

It follows that, in my view, Mr Mcfarlan's contention must be sustained, that is

to say, the procedure by way of arrest of the ship is not now open to the plaintiff.

I would accordingly dismiss this motion with costs fixed at £10-10s-Od.

Jibowu, F.J.

I concur.

Abbott, Ag. F.J. I

concur.

30

Motion dismissed.

COKER & ANOR. V. COKER

35

IN

THE MATTER OF THE ESTATE

OF ALBERT MOSEBI COKER

40

IN RE:

1.

ROLAND ALABI COKER

2.

MICHAEL AJANI COKER

APPELLANTS

V

JACOB HASTINGS COKER

RESPONDENT

45

SUIT NO. WACA 143/1955

FEDERAL SUPREME COURT

FOSTER SUTTON,

F.C.J

JIBOWU,

F.J.

ABBOTT,

Ag. F.J.

50

29th March, 1956.

Civil Procedure- Interlocutory applications - Order XXXTV, Rule 1, Supreme Court

(Civil Procedure) Rules-Motion to determine persons to participate in distribution

of estate properly made.