FBN V. AFET 27 (NIG) LTD & ANOR
(2020)LCN/14034(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, March 20, 2020
CA/C/251/2015
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Uchechukwu Onyemenam Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
FIRST BANK OF NIGERIA PLC APPELLANT(S)
And
1. AFET 27 [NIG.] LTD. 2. MR. NSE UFIA EKANEM RESPONDENT(S)
RATIO
WHETHER OR NOT LEAVE OF COURT IS REQUIRED TO SERVE A WRIT OF SUMMONS OUTSIDE THE JURISDICTION OF A RESPONDENT
The proper procedure that the Respondents ought to have followed before the writ of summons was filed at the registry of the Court below would have been by filing a motion on Notice and exhibiting a copy of the proposed writ of summons and other accompanying processes to their affidavit in support of their application. Once leave is granted by the Court, the Respondents would then proceed to file the writ of summons based on the leave of Court so granted. It was not proper for the Respondents to seek leave of Court on 15/12/2014 on a writ of summons that was already filed on 02/12/2014 without any leave of Court sought and obtained. The subsequent argument by the Respondents that the writ of summons was eventually served by Court order within jurisdiction does not help. This is fundamentally because the Superior Courts have always drawn a distinction between the issuance of a writ and the service of a writ. In this respect, a writ must first properly be issued before the question of its being properly served could arise. Thus, any writ of summons issued for service out of jurisdiction must be properly issued where leave of Court is had and obtained before filing issuance and service. Indeed, as rightly pointed out by the learned counsel for the Appellant, what matters is that having endorsed the writ for service in Lagos, all the steps would have been taken to ensure that the writ is properly issued and served. That it does not lie in the mouth of the Respondents to contend that there was no need for leave of Court to be obtained since the writ was later served within the jurisdiction of the Court by order of substituted service.
By the same token, the Respondents in the instant case cannot be heard to say that the failure to obtain leave to issue writ for service out of jurisdiction is a procedural irregularity that could be cured by the provision of Order 5 Rule 1 of the Akwa Ibom State High Court [Civil Procedure] Rules 2009. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Akwa Ibom State sitting at Uyo, delivered by the Hon. Justice Okon A. Okon on the 26th day of June, 2015.
The Respondents as Plaintiffs took out a writ of summons dated 15th day of December, 2014 but filed on the 2nd day of December, 2014 against the Appellant as Defendant. By the endorsement on the writ, the Respondents/claimants claim against the Appellant/defendant as follows:
1. A declaration that the 1st Plaintiff is no longer indebted to the Defendant in respect of the loan financing facility of N65,000,000.00 obtained from the Defendant for the execution of the contract of construction of boat building maintenance workshop awarded to it by Maritime Academy of Nigeria, Oron.
2. An order directing the Defendant to return the sum of N9,047,334.43 it deducted from the account of the 1st Plaintiff as the 1st Plaintiff had liquidated the Contract Finance Facility of N65,000,000.00 on 4th September, 2014.
3. The sum of N350,000,000.00 [Three Hundred and Fifty Million Naira] as a general damages for the
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negligence and conversion of the 1st Plaintiff’s money leading to loss of earnings from expected utilization of the money to execute another contract with Hensek Integrated Limited.
4. Cost of action N500,000.00
On the 15th day of December, 2014, the Respondents by a motion exparte dated the 21st day of November 2014, but filed on 02/12/2014 prayed the Court for an order to issue the writ of summons and all other processes in the suit and served same on the Appellant at her Head Office at Samuel Asabia House, 35 Marina Rd., Lagos State. The motion exparte can be found at pages 56 – 59 of the Record. The writ of summons was returned unserved for the reason that the Appellant refused service on the grounds that same was not addressed to her Legal Department.
On the 24th March, 2015 by a motion exparte dated 23/3/2015 and filed on 24/3/2015 the Respondents prayed the Court for an order of substituted service of the writ of summons at the Branch Office of the Appellant at Banking Layout, Udo Udoma Avenue, Uyo. The motion exparte is at pages 67 – 70 of the Record.
Upon the service of the writ of summons and the accompanying
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processes on the Appellant, she filed through her solicitors a memorandum of conditional appearance on the 4th May, 2015 though dated the 28/4/2015 [see page 74 of the records].
Appellant later raised a preliminary objection to the further hearing and determination of the suit by the trial Court on the basis that the action as constituted, does not clothe the trial Court with the requisite jurisdiction in view of the fact among others that leave of the Court was not sought and obtained before the writ of summons in the action was issued for service on the Appellant out of jurisdiction.
The grounds of the Defendant’s Appellant’s Notice of Preliminary Objection as contained on page 75 of the Record of Appeal are thus:
1. Leave of Court was not obtained before the writ of summons in this action was issued for service on the defendant out of jurisdiction.
2. The writ is not endorsed for service out of the State as mandatorily required by Section 97 of the Sheriffs & Civil Process Act.
3. The mandatory conditions precedent for the commencement of this action have not been complied with.
4. The service of the writ of
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summons on the defendant is not proper.
5. The entire action of the plaintiffs as presently constituted is grossly incompetent and constitutes an abuse of the judicial process.
6. This honorable Court lacks the requisite jurisdiction to hear and determine this action.
The Respondents filed their reply to the Appellant’s Written Address on the Preliminary Objection. On the 2/6/2015 the trial Court heard argument on the objection before it and in its ruling of 26/6/2015 dismissed the objection and held that the writ of summons was properly issued and served on the Appellant Defendant.
Dissatisfied with the said ruling, the Appellant on the 6/7/2015 filed a Notice of Appeal with two (2) grounds of appeal in this Court.
The relevant briefs of argument are:
1. Appellant’s brief of argument is dated 15/1/2016 and filed on 18/1/2016. It is settled by Jerry Akpan, Esq.
2. Respondents brief of argument was filed on 25/5/2019 but deemed filed on 27/1/2020. It is settled by Kufre Ananah, Esq.
3. Appellant’s reply brief of argument was filed on 24/1/2020 but deemed filed on 27/1/2020. It is settled by Jerry Akpan, Esq.
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Learned counsel for the Appellant nominated a sole issue for determination of the Appeal. It is-
Whether the Respondents obtained leave of Court before the writ of summons was issued for service on the Defendant out of Akwa Ibom State? [Grounds 1 & 2 of the Notice and Grounds of Appeal].
The Respondents adopted the sole issue as formulated by the Appellants.
On the sole issue nominated for determination, learned counsel for the Appellant submitted that by the provision of Section 6(2) of the Constitution of the Federal Republic of Nigeria, 1999 [as amended] the trial Court can only exercise jurisdiction over persons who are within the territorial limits of its jurisdiction and nothing more except by its leave which must be sought for and duly obtained.
He referred to the case of NWABUEZE v OKOYE [1988] 4 NWLR [Pt. 91] 664 @ 680 per Agbaje, JSC.
There is no doubt, according to Appellant’s counsel, that the Akwa Ibom State High Court Rules [2009] are silent on whether or not and in the circumstances of this case, the claimant has to first and foremost obtain leave before he can issue the writ of summons or cause
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same to be issued against the Appellant outside Akwa Ibom State. However, recourse must be had to the provision of Section 10 of the High Court Law Cap. 55 Vol. III Laws of Akwa Ibom State 2000, where it provides in such a situation for the application of the common law of England and the doctrines of equity that were in force in England on the first day of January, 1900.
He submitted that based on the above and considering the provision of Order 2 Rule 4 of the Rules of Supreme Court in England 1960, which provides that no writ of summons for service out of jurisdiction, or of which notice is to be given out of jurisdiction shall be issued except with the leave of the Court or judge, leave to issue the writ in this case for service on the Appellant becomes mandatory by virtue of the said provision of the High Court Laws of Akwa Ibom State. This was not done by the Respondents in this case before the issuance and service of the said writ of summons and the accompanying documents on the Appellant through substituted service.
He submitted that leave of the lower Court being had and obtained before the issuance and service of the writ of summons on the
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Appellant by the Respondent having been a condition precedent to the assumption of jurisdiction by the trial Court over the matter now on appeal, the non-perfection of the said condition robs the trial Court of its unfettered jurisdiction to hear and determine this matter now on appeal on merit. He referred again to the case of NWABUEZE v OKOYE [supra] @ 685 paras A-G per Agbaje, JSC.
He reasoned that where the condition precedent to the commencement of an action has not been complied with, no subsequent act thereto can be regarded as valid. He referred to NWABUEZE v OKOYE [supra] @ 668 ratio 25 and the case of ACTION CONGRESS v KAIGAMA [2008] 8 NWLR [Pt. 1088] 165 @ 178 -179 paras G – A and paras B – D. That since the Respondents failed to apply for the leave of the trial Court to issue the writ of summons in this suit and served same on the Appellant outside the territorial jurisdiction of the trial Court before the issuance, service and the eventual commencement of proceedings in the matter; it cannot be said that the condition precedent to the institution of the suit against the Appellant had been fulfilled and on the authority of the
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Supreme Court decision in NWABUEZE v OKOYE [supra], no act subsequent thereto can be regarded as valid; because the act to which it is founded on has not been performed. He submitted further that since there was no writ of summons issued as required by law against the Appellant, there was nothing to serve.
He submitted that where the requirement stated above is not fulfilled before a writ of summons is issued, any writ so irregularly issued is liable to be set aside. That in the celebrated case of NWABUEZE v OKOYE [supra], the Supreme Court exhaustively articulated this elementary principle of law. The learned law lord, Agbaje, JSC in the lead judgment at page 685 paras C – D laid out the practice and procedure for leave thus:
And from what I have been saying so far a condition precedent for the issue of the writ of summons against the defendants in this case who are resident outside the area of the territorial jurisdiction of the High Court of Anambra State and who, again, neither of them carries on business within that area of jurisdiction, is that leave of the State High Court had to be first obtained before the writ was issued.
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He stated that the learned jurist then went ahead to state the relevance of the application and consequences of a breach of the procedure at the same page in paras. F-G as follows:
So the application for leave to issue a writ which is to be served out of jurisdiction is not a mere formality. Since leave was not obtained before it was issued, I must hold and I do hold that the writ of summons had been issued without due process of law and accordingly has to be set aside.
He submitted that the writ of summons meant to be served in Lagos State and out of Akwa Ibom State was not issued in accordance with the due process of law because leave of Court was obtained after the writ of summons had been issued and not before as prescribed by law. That a cursory look at the writ shows that it was issued on 2/12/2014, while leave to issue same was granted on 15/12/2014, about 13 clear days after the writ was issued. [Pages 2–55 and 71–72 of the record]. This is so because a writ of summons being an originating process is deemed to be issued when it is signed and stamped by the Registrar. [Order 6 Rule 2(1) of the Rules].
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He submitted that the learned trial Judge was therefore in grave error when he held [at page 105 lines 9 – 11 of the record] that:
I find nothing therefore fundamentally defective in the face of the writ whether issued on 2/12/2014 or 15/12/2014. There is no requirement in the High Court [Civil Procedure] Rules, 2009 of Akwa Ibom State regulating the institution of this action making the issuance of any class of writ of summons be it for service within or outside jurisdiction to be with the leave of Court.
He submitted that the position of the law that leave of Court had to be obtained before a writ can be issued out of Akwa Ibom State came up for consideration before this division of the Court of Appeal in the case of IDRIS v ARCHIBONG [2001] 9 NWLR [Pt. 718] 447 @ 457 paras B-C, the Court per Edozie (JCA), as he then was, held thus:
But, firstly, there is nothing to show that leave of Court was obtained before it was issued . . . Besides, a writ of summons is said to be issued upon its being signed by the Registrar or other officer of the Court duly authorized to sign the writ. At the time the ex parte motion to place the suit on the undefended list was
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before the Court, the writ of summons which had been signed by the Registrar of Court had already been purportedly issued . . .
He submitted that the law is that when leave of Court is required by law to initiate a judicial process or take a legal step, a party who commences the process without fulfilling the requirement does so at his own detriment as the process filed is bound to be thrown out. That in NDOMA-EGBA v GOVT. OF CROSS RIVER STATE [1991] 4 NWLR [Pt. 188] 773, the Court of Appeal gave its judicial endorsement of this legal principle per Tobi, JCA [as he then was] at page 789 paras C – D as follows:
If an application for leave to set in motion a particular process is a statutory pre-condition, an applicant who brings the particular Court process without satisfying or fulfilling that pre-condition can only do so at his peril and jeopardy. The application will be thrown out.
He added that, the law is that where a statute prescribes a particular method of performing a duty or doing a thing, that method, and no other, must have to be adopted and the party has no choice. He referred to the cases of CCB [NIG.] PLC v ATTORNEY-GENERAL,ANAMBRA STATE
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[1992] 8 NWLR [Pt. 261] 528 @ 556 G-H; FGN v ZEBRA ENERGY LTD. [2002] 18 NWLR [Pt. 798] 162 @ 200 – 201 H – A.
He concluded that failure to obtain leave before issuing the writ of summons for service on the Appellant out of jurisdiction robs the Court of the requisite jurisdiction to hear and determine the matter. He urged us to uphold the appeal and set aside the ruling of the Court below for want of jurisdiction.
Learned counsel for the Respondents submitted that though the writ was filed on 2/12/2014, the writ was issued by the Registrar to be served out of jurisdiction after leave was obtained on 15/12/2014. He submitted that the writ of summons is said to be issued upon its being signed by the Registrar or other officer of the Court duly authorized to sign the writ. He referred to the cases of IDRIS v ARCHIBONG [2001] 9 NWLR [Pt. 718] 447 @ 457 and NDIC v AKAHALL LTD. [2003] 31 WRN 125 @ 133 and submitted that in the instant appeal, the Respondents did all that was required by them by filing as required by the rules of Court. That it was only when the writ was signed by the Registrar of the Court below on the 15/12/2014
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that the writ was issued and the action commenced.
Learned counsel for the Respondents submitted that assuming without conceding that the writ of summons was issued on the 2/12/2014 as contended by the Appellants, the said writ was not served outside the jurisdiction of the trial Court because the Appellant had refused service at its Head Office which was outside the jurisdiction of the Court. But, that the writ was subsequently served on the Appellant within the jurisdiction of the trial Court after the Respondents had obtained leave of Court to do so. He submitted that by the Order granting leave to the Respondents by the trial Court to serve the Appellant within jurisdiction of the trial Court renders the writ not such that requires the leave of Court to be issued.
He submitted further that assuming without conceding that the Respondents did not obtain leave of Court to issue the writ of summons before filing on the 2/12/2014, that is a procedural irregularity and not a statutory requirement which was regularized by a subsequent Order of Court granting leave to issue the writ on the 15/12/2014. On this, Respondents counsel referred to the
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provision of Order 5 Rule 1 of Akwa Ibom State High Court [Civil Procedure] Rules 2009 and the cases of CARRIBEAN TRADING AND FIDELITY CORPORATION v NNPC [2001] 14 NWLR [Pt. 786] 133 @ 151; DAVANDY FINANCE AND SECURITIES LTD. & ORS. v ELDER EMMANUEL MBA AKI & ORS. [2015] LPELR – 24495 [CA].
He reiterated the view that the Respondents complied with the statutory pre-condition of the law before the suit was commenced at the trial Court. He urged us to uphold the view of the trial Court that the writ of summons was properly issued and served on the Appellant and urged us to dismiss the appeal.
In resolving the sole issue in this appeal, I think the Appellant was right to state that where leave of Court is required before the initiation of a matter, same is a pre-condition and a requirement that must be fulfilled before an action is commenced otherwise the Court will lack jurisdiction to entertain the matter.
The proper procedure that the Respondents ought to have followed before the writ of summons was filed at the registry of the Court below would have been by filing a motion on Notice and exhibiting a copy of the proposed writ of
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summons and other accompanying processes to their affidavit in support of their application. Once leave is granted by the Court, the Respondents would then proceed to file the writ of summons based on the leave of Court so granted. It was not proper for the Respondents to seek leave of Court on 15/12/2014 on a writ of summons that was already filed on 02/12/2014 without any leave of Court sought and obtained. The subsequent argument by the Respondents that the writ of summons was eventually served by Court order within jurisdiction does not help. This is fundamentally because the Superior Courts have always drawn a distinction between the issuance of a writ and the service of a writ. In this respect, a writ must first properly be issued before the question of its being properly served could arise. Thus, any writ of summons issued for service out of jurisdiction must be properly issued where leave of Court is had and obtained before filing issuance and service. Indeed, as rightly pointed out by the learned counsel for the Appellant, what matters is that having endorsed the writ for service in Lagos, all the steps would have been taken to ensure that the writ is
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properly issued and served. That it does not lie in the mouth of the Respondents to contend that there was no need for leave of Court to be obtained since the writ was later served within the jurisdiction of the Court by order of substituted service.
By the same token, the Respondents in the instant case cannot be heard to say that the failure to obtain leave to issue writ for service out of jurisdiction is a procedural irregularity that could be cured by the provision of Order 5 Rule 1 of the Akwa Ibom State High Court [Civil Procedure] Rules 2009. For this reason, the cases of CARIBBEAN TRADING & FIDELITY CORP. v NNPC [2002] 14 NWLR [Pt. 786] 133 @ 151; DAVANDY FINANCE & SECURITIES LTD. & ORS. v ELDER EMMANUEL MBA AKI & ORS. [2015] LPELR – 24495 [CA] cited by the Respondents are simply not applicable to the facts and circumstances of the instant case.
Indeed, the question of the issuance of writ of summons for service outside jurisdiction is always a jurisdictional issue which cannot be resolved by Rules of Court as suggested by the learned counsel for the Respondents. The Supreme Court per Agbaje, JSC in the leading case of
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NWABUEZE v OKOYE [1988] 4 NWLR [Pt. 91] 664 @ 680 had this to say:
So the application for leave to issue a writ which is to be served out of jurisdiction is not a mere formality. Since leave was not obtained before it was issued, I must hold and I do hold that the writ of summons had been issued without due process of law and accordingly has to be set aside.
This was equally the position expressed by the Court in the case of NDIC v AKAHALL LTD. [2003] 31 WRN 125 @ 133 [a case ironically cited by the learned counsel for the Respondents] where the Court held:
The second limb of issue 3 challenging the competence of the Court of the Respondent’s action on the ground that leave of the Court that was stipulated as a condition precedent to the commencement of the action was granted after the action was filed is one pack of a bizarre misconception of the law by learned counsel for the Appellant who on a very elementary point cannot sieve the wheat from the chaff . . .
The misconception stemmed from the failure to appreciate the distinction between application for a writ of summons asking for a leave of Court where it is a condition precedent
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as a basic step in initiating an action on the other hand and issuing an originating writ of summons for commencing an action on the other hand. The former is the duty of the plaintiff/litigant while the latter is the duty of the Court. The culmination of the processes when the writ is signed by a person who is authorized to do so is what is meant by a writ is issued. The two steps must be kept distinct in considering when an action is properly instituted.
At this juncture, let me join the learned counsel for the Appellant to say that the question of the issuance of writ of summons for the service outside the jurisdiction of Court is fundamental and goes beyond the application or otherwise of the High Court [Civil Procedure] Rules 2009 of Akwa Ibom State. If anything, recourse must be had to the provision of Section 10 of the High Court Law Cap. 55 Vol. III Laws of Akwa Ibom State 2000 which provides for the application of the common law of England and the doctrines of equity that were in force in England on the first day of January 1900 as encapsulated by the provision of Order 2 Rule 4 of the Rules of Supreme Court in England 1960.
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In the instant case, the illogicality of putting the cart before the horse by granting leave to the Respondents to issue writ of summons to be served on the Appellant outside jurisdiction when in fact the said writ had earlier been issued without leave of Court is apparent from the summary of facts by the learned trial judge as evident on pages 99 – 100 of the Record of Appeal.
On 2/12/2014, the plaintiffs through their counsel took out the writ of summons in this action on which date the plaintiffs made the requisite payment for the writ as assessed on the same 2/12/2014.
The writ of summons though stamped with the Court’s stamp on 2/12/2014 is dated 15th December 2014.
On the same 2/12/2014, the plaintiffs filed motion ex parte praying for leave to issue and serve the writ of summons and other processes in the suit on the December out of jurisdiction at the Defendant’s Head Office stated to be at SAMUEL ASABIA HOUSE, 35 Marina Road, Lagos State through the EMS Courier Service.
The said motion ex-parte was listed for hearing on Monday, the 15th day of December, 2014. The motion was heard and granted the same date that is 15/12/2014. The
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Court while granting the application directed, inter alia, that the writ of summons shall be endorsed as required by Section 97 of the Sheriffs and Civil Process Act.
There is nothing in the Court’s file to show that the writ of summons was endorsed in accordance with Section 97 of the Sheriffs and Civil Process Act and as ordered by this Court.
Effort was, however, made by EMS Courier Service to serve the defendant with the writ of summons in this suit at the defendant’s address stated above out of jurisdiction but the writ was returned unserved.
The learned trial judge was therefore wrong when it later held at page 105 of the Record of Appeal that:
I have examined the writ of summons in this action. It is duly signed and stamped by the Legal Practitioner who took it for the Plaintiff in this action. The writ was further signed and stamped with the Court’s stamp on 2/12/2014. The writ is however, dated 15th December, 2014. The writ was paid for as assessed on 02/12/2014. I find nothing therefore fundamentally defective in the face of the writ whether issued on 02/12/2014 or 15/12/2014. There is no requirement in the High
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Court [Civil Procedure] Rules, 2009 of Akwa Ibom State regulating the institution of this action making the issuance of any class of writ of summons be it for service within or outside jurisdiction to be with the leave of Court. It follows therefore that a writ of summons can be issued by the High Court in the State on even a Defendant who resides outside Akwa Ibom State without the leave of the Court being sought for and/or obtained.
In the circumstance, the Respondents failed to fulfill a condition precedent to the issuance of writ of summons to be served outside jurisdiction and a fortiori the commencement of the action. See A-G, LAGOS STATE v EKO HOTELS LTD. [2018] 7 NWLR [Pt. 1619] 518 @ 552; MADUKOLU v NKEMDILIM [1962] 2 SCNLR 341 [1962] ALL NLR 587 @ 594; SKENCONSULT [NIG.] LTD. v UKEY [1981] 1 SC 6 @ 62; INAKOJU v ADELEKE [2007] NWLR [Pt. 1025] 423 @ 588.
The only issue in this appeal is resolved in favour of the Appellant. The appeal is meritorious and it is allowed. The Ruling of the Hon. Justice Okon A. Okon of the High Court of Akwa Ibom State, Uyo Judicial Division, Uyo delivered on 26th June 2015 is hereby set aside.
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Suit No. HU/370/2014 is hereby struck out. The parties to the appeal shall bear their respective costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading before now the draft of the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA. I adopt the reasoning and conclusion reached in allowing the appeal. I also allow the appeal.
Accordingly, the Ruling of the High Court of Akwa Ibom State, Uyo Judicial division delivered on 26th June, 2015 in Suit No. HU/370/2014 per Okon A. Okon, J. is hereby set aside and the Suit struck out.
Parties are to bear their costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading the draft judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA.
I am in agreement with the reason and conclusion of the appeal.
I also agree that the appeal is meritorious and is allowed.
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Appearances:
Jerry Akpan, Esq. For Appellant(s)
Kufre Ananah, Esq. For Respondent(s)
