A. G. BUTLER (NIG ) LTD v. THE SANKO STEAMSHIP CO. LTD (2020)

A. G. BUTLER (NIG ) LTD v. THE SANKO STEAMSHIP CO. LTD

(2020)LCN/14534(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, July 16, 2020

CA/PH/357/2016

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

A. G. BUTLER NIGERIA LIMITED APPELANT(S)

And

THE SANKO STEAMSHIP CO. LTD RESPONDENT(S)

RATIO

WHETHER OR NOT A FOREIGN CORPORATION WHO CARRIES ON BUSINESS IN NIGERIA CAN BE SERVED COURT PROCESSES

By virtue of Order 6 Rule 12 of the Federal High Court Rules, 2009, a foreign corporation who carries on business in Nigeria under the name of a firm through an authorized agent may be served Court processes through its agent and the service shall be equivalent to personal service. But there is nothing in the Record of Appeal to show that the Respondent qualifies to take advantage of such provision.
I am of the respectful view that the Plaintiff, who has instituted an action, is under a duty to show that the person sued competently carries on business in Nigeria. He has to show that the Court has jurisdiction over it. See Orugbo vs. Una (2003) 16 NWLR (pt. 792) 175. PER AWOTOYE, J.C.A.

WHETHER OR NOT DELAY IN DELIVERING A JUDGEMENT, VITIATES THE JUDGEMENT

Section 294(1) of the 1999 Constitution on which this issue rests states as follows: “294.-(1) Every Court established under the Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
Section 294(1) of the 1999 Constitution “(as amended)” has been subjected to judicial interpretation by the apex Court in ATUNGWU & ANOR vs. OCHEKWU (2013) 14 NWLR (pt. 1375) 605 – where Galadima, JSC had this to say:
”Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999…However in Section 294(5) of the said constitution it is provided that “The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of the Section, unless the Court exercising jurisdiction by way of appeal or review of the decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.” In the light of the foregoing provision, it must be noted that delay in delivery of Judgment per se, does not lead to a Judgment being vitiated. The delay must occasion a miscarriage of justice to result in such a conclusion. In other words, it has to be established that the delay occasioned a miscarriage of justice in that the trial Judge did not take a proper advantage of having seen or heard the witnesses testify or that he had his impressions of the trial due to such inordinate delay. See AKPAN vs. UMOH (1999) 7 SC (pt. II).See also AKOMA & ANOR vs. OSENWOKWU & ORS (2014) 11 NWLR (pt. 1419) p. 462.” PER AWOTOYE, J.C.A.

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the Appellant, who was the Plaintiff at the lower Court against the Decision of the Federal High Court Port Harcourt Division delivered on the 6th day of May, 2016.

The Plaintiff had instituted an action against the Defendant claiming as per paragraph 24 of its Statement of Claim thus:
“24. WHEREFORE the Plaintiff claims against the Defendant as follows:
(a) Loss of earnings at $15,000.00 (Fifteen Thousand Dollars) per day from 11th day of December, 2011 to 11th day of June, 2012.
(b) the sum of $30,000.00 (Thirty Thousand Dollars) paid by the Plaintiff to Gulfstar Marine Services Ltd for Inward Agency Services/T.I. for M.V. Ark Phil.
(c) Interest on the sum of (Thirty Thousand Dollars) from December, 2011 till judgment is delivered and 21% (Twenty-one percent) from the date of judgment till said sum is fully liquidated by the Defendant.
(d) The sum of $3,000,000.00 (Three Million Dollars) as general damages.”

The processes relating to the action were served on R. K. Offshore Limited at No. 10

Opobo Crescent G.R.A, Phase 2 Port Harcourt, Rivers State.

The Defendant challenged the service of the processes on R. K. Offshore Limited at No. 10 Opobo Crescent G.R.A, Phase 2 Port Harcourt on the ground that the Defendant was a registered company resident in Japan and that there was no leave of Court to issue and serve Respondent outside jurisdiction.

After hearing the parties, the learned trial Judge held that the Defendant resided at Sanko Steamship Co. Ltd, Habiya Kokusai Building, 2-3, Uchissi-wacho 2-Chome Chiyodaku, Tokyo, 100-0011, Japan and that the Plaintiff not obtaining leave to serve the Defendant outside jurisdiction and the non-endorsement of the Writ of Summons in compliance with the Sheriff and Civil Rules Act rendered the case incompetent and divested the Court of its jurisdiction. Consequently the Plaintiff’s case was struck out.

Aggrieved by the Decision, the Plaintiff challenged it on appeal vide its Notice of Appeal containing 2 Grounds of Appeal.

Briefs of Arguments were later filed and exchanged after transmission of Record of Appeal.
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SUBMISSIONS OF COUNSEL
APPELLANT’S BRIEF OF ARGUMENT
Counsel for the Appellant, K. K. Iheme, Esq. filed a Brief of Argument dated 29th day of August, 2016 and filed on the 31st day of August, 2016. Counsel for the Appellant formulated two issues for determination as follows:
ISSUE NO. 1
Whether the writ of summons ought to have been endorsed ‘to be served out of jurisdiction’, in view of the Respondent’s place of business location at No. 10 Opobo Crescent, G.R.A Phase 2, Port Harcourt, Rivers State?
OR
Whether service of the Originating Processes through an agent of the Respondent amount to proper service?
ISSUE NO. 2
Whether the delivery of the ruling by the lower Court beyond the statutory period of three (3) months after adoption of written addresses occasioned a miscarriage of justice and runs foul of the provisions of Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)?

ISSUE NO. 1
Whether the writ of summons ought to have been endorsed ‘to be served out of jurisdiction’, in view of the Respondent’s place of business location at No. 10 Opobo Crescent, G.R.A Phase 2, Port Harcourt, Rivers State?

OR
Whether service of the Originating Processes through an agent of the Respondent amount to proper service?

On Issue one, Counsel for the Appellant submitted that the place of business of the Respondent is located at No. 10 Opobo Crescent, G.R.A Phase 2, Port Harcourt, Rivers State as can be seen on the writ of summons and statement of claim. That the writ of summons ought not to have been endorsed “to be served out of jurisdiction.”

Counsel contended that in determining jurisdiction, it is the Plaintiff/Applicant’s processes that should be looked upon to decide same. Counsel cited the case of Anyanwu vs. Ogunewe & Ors (2014) LPELR-22184 SC Pp.44-46, paras. G-D, per Kekere-Ekun, JSC.

In line with Anyanwu vs. Ogunewe (supra), Counsel stated that the Appellant in its Writ of Summons and Statement of Claim never provided the Respondent’s address as being outside jurisdiction or that the Respondent is registered in Japan that the Charter Party/transaction between the Appellant and the Respondent was entered into at RK Offshore Nigeria Limited at No. 10 Opobo Crescent, G.R.A Phase 2, Port Harcourt, Rivers State,

(an agent of the Respondent). That the Respondent at paragraph 8(d) of the affidavit in support of motion to strike out the Appellant’s suit affirmed that it received the Originating processes from Rk Offshore Limited. That service on an agent was proper service outside jurisdiction and there was no need for leave to issue and serve outside jurisdiction or for the writ of summons to be endorsed as such. Counsel relied on the case of The Owners of the “MSC AGATA” & Anor vs. Nestle Nigeria Plc & Anor (LPELR – 9851 (CA) p. 29 paras. D-G, per Ogunwumuju, JCA.

On the definition of the word “Agent”, Counsel referred to the Black Law Dictionary, Ninth Edition by Bryan A Garner et al @ page 72 and on the definition of “Representative”, at page 1416.

On the mode of service of a writ on Defendant which reside out of jurisdiction and carrying on business within the jurisdiction in his own name or under the name of the firm through an authorized agent and whether the cause of action arose within the jurisdiction, Counsel cited the case of Sanbell Investment Ltd vs. Emlo Holdings ltd &Ors (2014)

LPELR-22991 (CA) P.54, paras. A-F, per Sanusi, JCA. Counsel also stated Order 6 Rule 12 of the Federal High Court (Civil Procedure) Rules, 2009 is an authority to the Appellant mode of service.

Counsel contended that the Respondent failed to discharge the onus of proving its incorporation status, which was challenged by the Appellant. On where the onus to prove a fact lies, Counsel referred the Court to the case ofMessrs. Lewis and Peat (N.R.T) Ltd vs. A. E. Akhimien (1976) LPELR-1864 (SC) P.13 paras. C-E, per Idigbe, J.S.C.

Counsel submitted that the status of a company can only be ascertained by the production of its certificate of incorporation. That this was the decision of the Court of Appeal in the case of Federal Board of Internal Revenue vs. Integrated Data Services Ltd (2009) LPELR-8191 (CA) Pp. 31-32, paras. G-B, per Ogunwumuju, JCA.

That the learned trial Judge erred in law when he held that the Respondent resides outside jurisdiction without it producing its certificate of incorporation. That the mere stating of facts cannot take the place of evidence. That facts must be established through pleadings/affidavits and evidence.

Counsel cited the case of AfriBank Nigeria Plc vs. Bonik Industries Ltd (2005) LPELR-7447 (CA) Pp.19-20, paras. G-D per Ibiyeye, JCA. On the issue of proving the status of a corporation/company, Counsel cited the case Geneva vs. AfriBankNigeria Plc (2013) LPELR-20662 (SC) Pp.44-45, paras E-B, per Ariwoola, J.S.C.

ISSUE NO. TWO
Whether the delivery of the ruling by the lower Court beyond the statutory period of three (3) months after adoption of written addresses occasioned a miscarriage of justice and runs foul of the provisions of Section 294(1) of the 1999 constitution of the Federal Republic of Nigeria (as amended)?

On issue two, Counsel to the Appellant submitted that the delivery of the ruling by the lower Court beyond the statutory period of three months as stipulated under Section 294(1) of the 1999 Constitution (as amended) occasioned a miscarriage of justice to the Appellant and ran foul of extant law. In furtherance to the above, he submitted that Section 294(5) contains a condition precedence to be satisfied by a party seeking to set aside such decision.

On what constitutes a miscarriage of justice, Counsel cited the case of

Gbeneyei & Ors vs. Isiayei & Ors (2014) LPELR-23216 (CA) P.23, paras. A-E, per Ogakwu, J.C.A.

In furtherance to the phrase, ‘miscarriage of justice’ Counsel also cited the case ofUnilorin vs. Akinola (2014) LPELR-23275 (SC) P. 36, paras E-G, per Mohammed, J.S.C.

Counsel submitted that due to the undue delay in delivering its ruling, the lower Court lost track of its perception of the facts of the application. That this led to its failure to follow and apply Order 6 Rule 12 (supra) thereby arriving out a decision prejudicial to the Appellant. That on the 5th day of March, 2015, Counsel adopted their written addresses at the lower Court and on the 6th day of May, 2016, the lower Court delivered the ruling contrary to Section 294(1) of the Constitution of FRN 1999 (as amended).

That due to the undue delay, the lower Court failed to appreciate the Appellant’s application to serve the Originating processes through an agent in compliance with extant Rules.

Counsel urged the Court to resolve Issues one and two in favour of the Appellant.

RESPONDENT’S BRIEF OF ARGUMENT
Learned Counsel for the Respondent raised

Preliminary Objection to the alternate issue for determination as framed by the Appellant’s Counsel. He contended that the issue did not arise or flow from the Ground 2 of the Appellant’s Grounds of Appeal to strike out the alternative issue to issue No. 1.

Even though Appellant filed a reply brief, he did not respond to the Preliminary Objection of the Respondent.

I shall first deal with the Preliminary Objection before going into the main appeal.

I intend to juxtapose for clarity’s sake the issue in contention and Ground 2 of the Notice of Appeal of the Appellant.

The issue in contention is the alternative issue to issue No. 1 of the Appellant which reads thus:

“Whether service of the Originating Processes through an agent of the Respondent amount to proper service?”

Grounds 2 of the Notice of Appeal of the Appellant read as follows:
“GROUND 2
The learned trial Judge erred in law when he held that the Writ of Summons is not endorsed to be served out of jurisdiction.
PARTICULARS OF ERRORS
(i) The Appellant transacted with the Respondent at all material times, at

the Respondent’s office at R K. Offshore Nig Ltd, premises of No. 10 Opobo Crescent, G. R. A. Phase 2, Port Harcourt, Rivers State, a place within jurisdiction.
(ii) By paragraph 3(a) of the counter afidavit in opposition to Respondent’s Motion on Notice dated and filed on 09/01/2014, the Appellant denied that the Respondent is a company registered in Japan.
(iii) The Respondent failed to prove that it is a company registered in Japan.
(iv) The Respondent did not file any further affidavit showing documents of registration to prove that it is a company registered in Japan.
(v) That Charter Party Agreement relied upon by the Respondent is not a document of registration.
(vi) The service of the writ of summons and other processes in this suit on the Respondent at its office located at No. 10 Opobo Crescent, G. R. A. Phase 2, Port Harcourt, Rivers State, is regular and proper service.”
There is nowhere in the said Ground that it was stated that the originating processes were served through an agent of the Respondent.

It therefore seems to me that GROUND TWO of the Grounds of Appeal of the Appellant and the

alternative issue No. 1 are strange bed-fellows. They are unrelated. Besides, issue No. 1 was split by the Appellant into sub-issues. This is with due respect wrong and unsupported by the Court of Appeal Rules. The Supreme Court in the recent case of N.C.C vs. MOTO PHONE LTD & ANOR (2019) LPELR-47401 (SC) had course to condemn this inacceptable practice. Abba-Aji, J.S.C has this to say on it:
“On the preliminary point raised by the learned Counsel to the 1st Respondent on the competence of issue 1 (ii) & (iii) formulated by the Appellant, that by Order 6 of the Supreme Court rules, there is no provision for ‘sub issues” and that issue 1 (ii) & (iii) be struck out by relying on HUSSEIN V. MOHAMMED (2015) 3 NWLR (pt. 1445) at 126.
I must not overlook. Issue 1 apparently appears split or to carry sub issues with it instead of being one whole issue for the determination of the appeal. What the Appellant did has the effect to obscure and obviate the fundamental and core issue in this appeal especially on issue 1. This is most undesirable and condemnable! The main purpose of formulation of issues for determination is to

enable the parties to narrow the issue or issues in controversy in the grounds of appeal filed in the interest of accuracy, clarity and brevity. Counsel must learn to assist the Court rather than muzzle and puzzle things up for the Court.
I may however forgive this for the sake of justice since the said split or sub issue can give some meaning and understanding to a reasonable mind without misleading or occasioning miscarriage of justice to the 1st Respondent. Thus, “A party who complains about the formulation of issue or issues by the Court must say what injustice has been done to him by such formulation”.
In the absence of such evidence, an appellate Court cannot reverse the decision of the lower Court. The formulation of the issue by the Court must result in miscarriage of justice for this Court to intervene in favour of the Appellant.” See per TOBI, JSC in NWANA V. F.C.D.A & ORS 2004 LPELR-2102(SC). I cannot therefore give place to the preliminary objection raised by the learned Counsel to the 1st Respondent.”
I must also add that an issue must be related to a ground of appeal. When an issue is not related it

is incurably incompetent and will be struck out. An issue must arise from a ground of appeal. See OMO vs. J.S.C DELTA (2000) 7 SC (pt. 11) 1.

The alternative issue to issue No. 2 is incompetent. This Preliminary Objection succeeds in the circumstance; the alternative issue is accordingly struck out.

Counsel to the Respondent, Biola Ogundare (Mrs.) filed the Brief of Argument dated 30th December, 2016, filed on the 19th January, 2017 and deemed as properly filed and served on the 17th day of April, 2018.

ISSUES FOR DETERMINATION
The Counsel for the Respondent formulated 2 issues for determination.
(a) Whether or not the delivery of the ruling dated the 6th of May, 2016 by the lower Court outside the statutory period of three (3) months occasioned a miscarriage of justice to the Appellant? (Ground 1).
(b) Whether or not the issuance and service of the Appellant originating processes is regular without being endorsed to be served outside jurisdiction?(Ground 2).

ARGUMENT
On issue one, Counsel for the Respondent submitted that although the Court must deliver its decision not later than ninety days after the conclusion

of evidence and final address, it is also the law that no decision of the Court will be set aside on the ground that it was delivered outside the mandatory 90 days except the Court in exercising its jurisdiction by way of appeal or review of the decision is satisfied that the party has suffered a miscarriage of justice by reason of the delay. Counsel referred the Court to Section 294(1) & (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Counsel cited the case of Akpan vs. Umoh (1999) 1 NWLR (pt. 627) 349 and Akolma & Anor vs. Osenwokwu & Anor (2014) 11 NWLR (pt. 14180 462 at 487-488, paras.E-H.

Counsel cited the case of Okon vs. Ita (2010) LPELR-9010 on the rationale behind Section 294 of the Constitution.

Counsel submitted that the burden of proving a party has suffered a miscarriage of justice from the decision complained of is on the party seeking to set aside the decision. That the burden is not discharged by simply citing the concept. Counsel referred the Court to the cases of Dibiamaka vs. Osakwe (1989) 3 NWLR (pt. 107), Darma & Ors vs. Mustapha (2014) LPELR-23734 (CA).

Counsel stated that the Appellant must show that the lower Court was no longer in tune with the facts of justice. He referred the Court to the cases of Iheanacho vs. Iwumadi (2013) LPELR-20689 (CA), Akindipe vs. State (2008) 15 NWLR (pt. 1111) 560. That there cannot be a miscarriage of justice were the Court’s evaluation of evidence is still fresh and its finding of facts are supported by credible evidence. That such decision, though delivered outside the statutory period will not be set aside on appeal. Counsel cited the cases ofMolegbemi & Ors vs. Ajayi & Ors (2011) LPELR-4501, Dibiamaka vs. Osakwe (1989) 3 NWLR (pt. 107) page 101, Egwu vs. Egwu (supra) at Pp.505-506 and Anyafulu vs. Agazie (2006) 5 NWLR (pt. 973) p. 260.

Counsel stated that the evidence before the lower Court was solely documentary. That no witness testified before the lower Court. That the lower Court’s duty is to read and appreciate all printed documents which includes: Respondent’s application, the Appellant’s counter affidavit, Written addresses and Oral applications of such Written address recorded by the learned trial Judge. That it cannot be said that the learned trial

Judge has lost touch with such printed document only. Counsel cited the case of Akolma & Anor vs. Osenwokwu & Anor (2014) LPELR-22885 (SC). Counsel referred the Court to pages 123-129 of the record, pages 130-132 of the record in submitting that the ruling exhaustively summarized the arguments of both parties both in the open Court and in the written addresses, the issues for determination was clearly set out, the content of the Respondent’s affidavit and the Appellant’s counter affidavit was referenced.

Counsel submitted that for the Court to declare the ruling of the lower Court a nullity on the ground of delay in delivery, the Appellant must produce convincing and credible evidence that it suffered a miscarriage of justice. Counsel referred the Court to the case of M. V. “Caroline Maersk” V. Nokoy Investment Ltd (2000) 7 NWLR (pt. 666) P. 587 at 604, para. D. That the Appellant has failed to demonstrate this and so has not suffered any miscarriage of justice as a result of the delay in the delivery of the ruling of the lower Court.

Counsel urged this Court to resolve this issue in favour of the Respondent.

ISSUE TWO
Whether or not the issuance and service of the Appellant originating processes is regular without being endorsed to be served outside jurisdiction?

Counsel submitted that the jurisdiction of a Court to determine a case is dependent on the Court’s competence. He cited the case of Madukolu vs. Nkemdilim (1962) 1 ALL NLR 587 at 594. That this authority was also cited with approval in the cases of Sken Consult Nig Ltd vs. Ukey (1981) 1 SC 6 at 26 and Nwabueze vs. Okoye (1988) 4 NWLR (pt. 910) 664 at 684.

Counsel stated that a defect in competence of a Court is deemed fatal to the proceedings. He referred the Court to the case ofPanters vs. Insight Eng. Ltd (2002) 10 NWLR (pt. 775) 231 at 247. That for the lower Court to have jurisdiction over the matter before it, the Respondent must be served in the manner provided for by the Rules of Court. That by Order 6 Rule 8 of the Federal High Rules, originating processes must be served on the registered office of the company. The service on a Respondent on a third party who is not the Respondent’s agent at an address different from the one furnished the Appellant is inconsistent with the

provisions of Order 6 Rule 8 of the Rules of the Federal High Court Rules.

Counsel cited the case NDIC vs. CBN (2002) 7 NWLR (pt. 766) 272 on when the Court is duty bound to consider other documents apart from the Writ of Summons and the Statement of Claim where the objection to jurisdiction is made by way of Motion on Notice supported with an affidavit. Counsel also cited the case of Owners of MTV Venturer vs. NNPC (2016) ALRN (pt. 6) p. 25 Lines 25-35 or (2010) LPELR-9068.

Counsel submitted that the learned trial Judge was right in resolving the issue of the Respondent’s place of business by recourse to the Charter party agreement between the parties. That the Appellant front loaded the document at the lower Court. That the agreement showed that the Respondent’s place of business is situated in Japan and as such the leave of Court is required before the issuance and service of the originating process and it must be properly endorsed to be served outside jurisdiction. That the lower Court was right in resolving the conflicting affidavits by recourse to its records and necessary documents. Counsel referred the Court to the case of

West African Provincial Insurance Co. Ltd vs. Nigeria Tobacco Co. Ltd (1987) 2 NWLR (pt. 56) 299.

Counsel contended that the Appellant admitted in its motion exparte that the Respondent’s place of business is in Japan. That the position of the Law is that admissions could be made in pleadings or in other Court processes or documents. Counsel referred the Court to the case of Anasfarms Ltd vs. NAL. Merchant Bank (1994) 3 NWLR (pt. 331) 241 at p. 25, paras F-G. and pages 75-78 of the record.

Counsel submitted that in view of the Appellant’s knowledge that the Respondent’s place of business is in Japan, the issuance and service of the Originating process in RK Offshore Limited at No. 10 Opobo Crescent GRA Phase 2, Port Harcourt is irregular. That leave of the Court ought to have been sought for the issuance and service of the Originating processes on the Respondent in Japan. That the Writ of Summons should have been endorsed as required by Section 97 of the Sheriffs and Civil Process Act.

On the Appellant’s contention that the Respondent ought to have produced its certificate of incorporation, Counsel to the Respondent submitted

that the Respondent would be required to produce its certificate of incorporation were its corporate existence is challenged. That the Appellant did not despite the fact that the Respondent is a registered company. That the issue was to determine the place of business of the Respondent. That the Appellant is contending that the Respondent’s place of business is in Nigeria. That the Respondent has also stated that being a foreign company, they cannot have a place of business nor agent for the purpose of receiving Court processes.

On the essence of the certificate of incorporation, Counsel cited the cases of NNPC VS. Luctin Investments Ltd & Anor (2006) 1 SC (pt. 111) 49, Emenite Ltd vs. Oleka (2005) 6 NWLR (921) 350 at 356-357, Orogan vs. Soremekun (1986) NWLR (pt. 44) 688, Nduka vs. Ezenwaku (2001) 6 NWLR (pt. 709) at 517. Counsel submitted that the cases cited by the Appellant are not applicable to the instant case.

Counsel urged the Court to discountenance the argument of the Appellant and resolve this issue in favour of the Respondent.

APPELLANT’S REPLY BRIEF
Counsel to the Appellant, A. I. Ekeh, Esq. filed a Reply Brief

of Argument dated the 30th day of April, 2018 and filed on the 2nd day of May, 2018.

In response to the Respondent’s contention in its Brief of Argument that the proceedings was based on documentary evidence. Counsel to the Appellant submitted that the issue was that the said ruling was delivered outside the statutory period by Section 294(1) of the Constitution of FRN, 1999 (as amended) and not whether the entire proceeding was based on documentary evidence. That the delay caused the trial Judge to forget the substance of the various applications including the Appellant’s Motion exparte for leave to serve the Respondent out of jurisdiction filed on 27/02/14 and the address of Counsel that the delay caused a miscarriage of justice.

Counsel submitted that it is trite law that the Court should look at all documents in the file but it must be done in the interest of justice. That after the hearing and address of Counsel on the various applications including the Motion ex-parte filed 27/02/14, the lower Court in its ruling never considered the merits of the Appellant’s Motion ex-parte. That the only reference made to the Motion Ex-parte

was for the purpose of considering the merits of the Respondent’s Motion dated 9/01/14. That if the ruling had not been delayed, the ex-parte motion would have been considered on the merit as a separate application from the Respondent’s Motion dated 9/01/2014. Counsel cited the case of Akoma vs. Osenwokwu (2014) LPELR-22885 (SC) Pp.44-46, paras D-C on the competence of delivering judgment within the statutory 90 days period and how it can cause a miscarriage of justice. Counsel submitted that had the trial Court delivered its ruling on time, the Appellant’s Counsel’s address on its Motion ex-parte on 27/02/14 would have been considered and should have saved the suit based on the principle of priority of motions. Counsel cited the case of Mobil Producing Nig Unlimited & Anor vs. Monokpo & Anor (2003) LPELR-1886 (SC) PP. 48-49, paras. G-C.

Counsel submitted that the motion ex-parte and its supporting affidavit do not amount to an admission of the place of business of the Respondent.

Counsel further stated that the lower Court ought to have evaluated the Appellant’s counter affidavit dated 27/02/2014 which

challenged the Respondent’s Motion on Notice file 9/01/2014 for the purpose of determining the merits of Respondent’s Motion. That it was wrong for the trial Court to evaluate the affidavit evidence of the Appellant’s motion ex-parte dated 27/02/2014 for the purpose of considering the merits of the Respondent’s Motion. That the lower Court when giving reasons for treating the Appellant as “Respondent” thereby causing a miscarriage of justice. That a party cannot be deemed to have admitted facts not within his knowledge. Counsel cited the case ofTsokwa Oil Marketing Co. Nigeria Ltd vs. Bank of the North Ltd (2002) LPELR-3268 9 SC Pp. 35-36, paras. F-N. That applying the above principle, the fact of the place of business of the Respondent not being in Nigeria cannot be said to be within the knowledge of the Appellant. That the burden is on the Respondent to prove what it asserts.

Counsel urged the Court to allow this appeal and set aside the ruling of the lower Court delivered on 6/5/16 and also remit this case back to the lower Court for trial on the merit before another Judge.

RESOLUTION OF ISSUES
I have deeply considered the submissions of learned Counsel on both sides as well as the contents of the Record of Appeal.

I shall first treat issue No. 1 of the Appellant (which is Issue No. 2 of the Respondent).
WHETHER THE WRIT OF SUMMONS OUGHT TO HAVE BEEN ENDORSED ‘TO BE SERVED OUT OF JURISDICTION’, IN VIEW OF THE RESPONDENT’S PLACE OF BUSINESS LOCATION AT NO.10 OPOBO CRESCENT, G.R.A PHASE 2, PORT HARCOURT, RIVERS STATE?

The resolution of this issue turns on the question; where is the Respondent’s place of business located?
There is no doubt that THE SANKO STEAMSHIP CO. LIMITED is a foreign company or corporation as evident in EXHIBIT A, its charter party frontloaded by the Appellant at the lower Court where the place of business is described as:
“The Sanko Steamship Co. Limited, Habiya Kokusai Building, 2-3, Uchissi-wacho 2-Chome Chiyoda-ku, Tokyo, 100-0011, Japan.”
There is nothing in the processes filed at the lower Court to show that SANKO STEAMSHIP CO. LIMITED is registered in Nigeria. If it is not, it certainly cannot have a place of business in Nigeria. This is forbidden under

Section 54(1) of the Companies and Allied Matters Act 1990.
Section 54(1) of the Companies and Allied Matters Act read as follows:
“54.(1) Subject to Sections 56 to 59 of this Act, every foreign company which, before or after the commencement of this Act, was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria shall take all steps necessary to obtain incorporation as a separate entity in Nigeria for that purpose, but until so incorporated, the foreign company shall not carry on business in Nigeria or exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes in Nigeria for any purpose other than the receipt of notices and other documents, as matters preliminary to incorporation under this Act.
It therefore follows that the contention of the Appellant that the Respondent has a place of business in Nigeria holds no water. It does seem clear that under Section 54(1) of the said Act, the argument that RK Offshore Nigeria is the Respondent’s agent is puerile.
By virtue of Order 6 Rule 12 of the Federal High Court Rules, 2009, a foreign

corporation who carries on business in Nigeria under the name of a firm through an authorized agent may be served Court processes through its agent and the service shall be equivalent to personal service. But there is nothing in the Record of Appeal to show that the Respondent qualifies to take advantage of such provision.
I am of the respectful view that the Plaintiff, who has instituted an action, is under a duty to show that the person sued competently carries on business in Nigeria. He has to show that the Court has jurisdiction over it. See Orugbo vs. Una (2003) 16 NWLR (pt. 792) 175.

I resolve this issue against the Appellant in the circumstance. The only relevant document showing the place of business of the Respondent is the frontloaded charter party.

ISSUE NO. 2
WHETHER THE DELIVERY OF THE RULING BY THE LOWER COURT BEYOND THE STATUTORY PERIOD OF THREE (3) MONTHS AFTER ADOPTION OF WRITTEN ADDRESSES OCCASIONED A MISCARRIAGE OF JUSTICE AND RUNS FOUL OF THE PROVISIONS OF SECTION 294(1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED)?

Section 294(1) of the 1999 Constitution on which this issue rests states as follows:

“294.-(1) Every Court established under the Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
Section 294(1) of the 1999 Constitution “(as amended)” has been subjected to judicial interpretation by the apex Court in ATUNGWU & ANOR vs. OCHEKWU (2013) 14 NWLR (pt. 1375) 605 – where Galadima, JSC had this to say:
”Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999…However in Section 294(5) of the said constitution it is provided that “The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of the Section, unless the Court exercising jurisdiction by way of appeal or review of the decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.” In the

light of the foregoing provision, it must be noted that delay in delivery of Judgment per se, does not lead to a Judgment being vitiated. The delay must occasion a miscarriage of justice to result in such a conclusion. In other words, it has to be established that the delay occasioned a miscarriage of justice in that the trial Judge did not take a proper advantage of having seen or heard the witnesses testify or that he had his impressions of the trial due to such inordinate delay. See AKPAN vs. UMOH (1999) 7 SC (pt. II).See also AKOMA & ANOR vs. OSENWOKWU & ORS (2014) 11 NWLR (pt. 1419) p. 462.”
At the lower Court all that the learned trial Judge considered in his ruling are documentary processes, – the affidavits filed and the charter party agreement. How could the delay in the ruling have caused miscarriage of justice when inspite of the delay, the documents were still there for the learned trial Judge to read and refresh his memory. It has not been shown that facts were not correctly remembered or summarized.

This issue in my view holds no water. I resolve it against the Appellant.

This appeal lacks merit. It is accordingly

dismissed. The ruling of the lower Court in Suit No. FHC/PH/CS/212/2013 delivered on 6/5/2016 is hereby affirmed with costs assessed as N250,000.00 in favour of the Respondent but against the Appellant.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I concur with the reasoning reached in the lead judgment just delivered by my learned brother, Awotoye, JCA to the effect that the instant appeal lacks merits. Hence, the appeal is hereby equally dismissed by me. I abide by the consequential order & costs.

ABUBAKAR MUAZU LAMIDO J.C.A.: I have had the privilege of reading in draft the Judgment delivered by my learned brother T. O. Awotoye, JCA, I agree entirely with the reasoning and conclusion reached therein. I too dismiss the appeal as lacking in merit and abide by all other consequential orders as contained in the lead judgment including order as to cost.

Appearances:

K. IHEME, ESQ, WITH O. M. AFOLABI, ESQ, A. Y. EKEH. ESQ AND M. O. SAHID, ESQFor Appellant(s)

BABAJIDE KOKU, SAN, WITH BIOLA OGUNDARE (MRS), UDOKA EZEOBI, ESQ, AND FEMI ADENITIRE, ESQ.For Respondent(s)