HIMMA MERCHANTS LTD v. CONOIL PLC (2022)

HIMMA MERCHANTS LTD v. CONOIL PLC

(2022)LCN/16802(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, September 27, 2022

CA/A/20/2016

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

HIMMA MERCHANTS LIMITED APPELANT(S)

And

CONOIL PLC RESPONDENT(S)

RATIO

THE CARDINAL PRINCIPLE OF INTERPRETATION OF STATUTES

It is clearly the position of our law that the cardinal principle of interpretation of statutes is that the words of the statutes must be given their natural grammatical meaning unless doing so will occasion absurdity. No extraneous matters needs to be introduced. See Onyema vs. Oputa (1987) SC 362 at 371; Egarebua vs. Eribo(2010) 9 NWLR (Pt. 1199) 411. I have read through the provision of Section 97 of the Sheriffs and Civil Process Act, and I have not come across anywhere therein where there is provision for leave to serve originating process out of jurisdiction. What the section says is that when these processes are to be served in a State other than the State where they are issued, an endorsement to that effect should be made on the process in terms of that provision. In Izeze vs. INEC & Ors., (2018) 11 NWLR (Pt. 1629) 110, which was cited and relied upon by learned counsel for the appellant, Rhodes Vivour, JSC, who delivered the lead judgment carefully construed the provision of Section 97 of the Sheriff and Civil Process Act and came to conclusion thus:
“Service of an originating process without the endorsement as clearly stated under Section 97 (supra) is not an irregularity. It is a fundamental defect which renders the originating process void”. See the case of Omajali v. David & Ors., (2019) LPELR – 49381 (SC), per Galinje, JSC.
In the instant case, the Writ of Summons at page 2 of the record clearly indicates that:
“This Summons is to be served out of Niger State of Nigeria and in Lagos State”. PER ADAH, J.C.A.

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Niger state, sitting in Suleja, in Suit No: NSHC/SD/92/2013, delivered on the 4th day of December, 2014; coram Ahmed A. Bima. J

By a Writ of Summons dated and filed on the 7th of October, 2013, the appellant herein, as plaintiff at the trial Court claimed against the Respondent as Defendant, the following reliefs:
1. The sum of N10,983,342.86 being the total loss of revenue and projected derivable income resulting to the plaintiff as damages and demurrage for the failure of the defendant to unload and discharge the plaintiff’s trucks engaged in the service of the defendant within time.
2. The refund of the sum of N2,196.558.90 which the defendant claimed it deducted from the payments of the plaintiff as bridging/withholding tax but could not furnish the plaintiff with evidence of such remittance to the appropriate authorities on its behalf.
3. The plaintiff also claims the sum of N7,285,080.00 from the defendant being transport claims due and payable to the plaintiff for service rendered to the defendant and duly acknowledged by it in line with the practice in the industry.
4. General damages of N25,000,000.00 of breach of contract.
5. The plaintiff also claim interest at 10% ten percent per annum on whatever judgment sum may be awarded in favor of the plaintiff from the date such award until full satisfaction of the judgment debt.

Upon service of the Writ of Summons on the respondent, the respondent filed a Notice of Preliminary Objection dated the 13th of November, 2013, and also a written address challenging the competence of the suit of the appellant on the ground that the appellant did not state on the writ of Summons that it was to be served out of Niger State of Nigeria and in Lagos State, as required by Section 97 of the Sheriff and Civil Process Act Cap S6 LFN 2004.

In a considered ruling delivered on the 4th of December, 2014, the trial Court held that the failure of the appellant to endorse those words on the Writ of Summons has rendered the Writ of Summons incompetent, and as such the Court lacks jurisdiction to hear and determine the claims of the appellant. And thereby struck out the suit for lack of jurisdiction.

Dissatisfied with the said decision, the appellant appealed to this Court vide a Notice of Appeal filed on the 17th of December, 2014 containing (3) three grounds. The record of appeal was transmitted to this Court on 18th of January, 2016, but deemed properly filed on 6th December, 2016.

The parties filed and exchanged their respective briefs of argument. Appellant’s Brief of Argument was filed on 18th January, 2016, but deemed properly filed and served on 6th December, 2016, the Appellant’s Reply Brief was filed on 3rd February, 2017, but deemed properly filed and served on 29th November, 2018. The Respondent’s Brief of Argument was filed on 14th December, 2016.

Learned counsel for the appellant submitted three issues for the determination of this appeal. The three (3) issues are:
1. Whether the learned trial judge was right in holding that the appellant’s writ of summon was a nullity for failure to meet the requirement of Section 97 of the Sheriff’s and Civil Process Act Cap S6 LFN 2004 when in fact those words were clearly endorsed at the bottom page of the writ of summons after the endorsement of the appellant’s claim. (Distilled form Ground 1 of the Notice of Appeal)
2. Whether it is the requirement Section 97 of the Sheriffs and Civil Process Act Cap S. 6 as held by the learned trial judge that the endorsement should form a part of the heading of the Writ of Summons. (Distilled from Ground 2 of the Notice of appeal).
3. Whether the ruling delivered by the learned trial judge on 4-12-2014 more than 12 months after arguments were taken and concluded was not perverse and lead to miscarriage of justice and liable to be set aside. (Distilled from Ground 3 of the Notice of Appeal)

In response, learned counsel for the Respondent in his Brief of Argument formulated two (2) issues for determination of this appeal, thus:
1. Whether the lower Court was not right to have upheld the preliminary objection challenging the validity of the originating process for non-compliance with the relevant legislation. (Grounds 1 and 2).
2. Whether the failure of the lower Court to deliver its ruling within the statutorily prescribed period has occasioned any miscarriage of justice in the circumstance of this case. (Ground 3).

This appeal will therefore, be determined on the three (3) issues formulated by the learned counsel for the appellant, as those issues cover the germane issues which calls for the determination of this appeal. I now start with issues 1 and 2.

Issues One & Two:
These issues are – Whether the learned trial judge was right in holding that the appellant’s writ of summon was a nullity for failure to meet the requirement of Section 97 of the Sheriff’s and Civil Process Act Cap S 6 LFN 2004 when in fact those words were clearly endorsed at the bottom page of the writ of summons after the endorsement of the appellant’s claim; and

Whether it is the requirement Section 97 of the Sheriffs and Civil Process Act Cap S. 6 as held by the learned trial judge that the endorsement should form a part of the heading of the Writ of Summons.

Learned counsel for the appellant while arguing this issues cited the case of Mohammed Kida v. A.D. Ogunmola (2006) 6 SCNJ 165 @ 175 and submitted that the learned trial judge was in gross error when he held that the appellant did not endorse the words prescribed by Section 97 of the Sheriffs and Civil Process Act Cap S. 6 LFN 2004.

Learned counsel for the appellant argued that Section 97 is not ambiguous, most especially the underlined part. It is settled principle of interpretation of statute that where the words are clear and unambiguous, literal interpretation should be adopted. Counsel relied on the cases of Chief Johnson Imah & 1 or v. Chief Ajowelw Okogbe & 1 or (1993) 12 SCNJ 57 AT 71; Ifekwe & 4 Ors v. Prince Joe Madu (2001) FWLR Pt. 38 1252 AT 1270 Para. H.

Learned counsel for the respondent submitted that where a statute provides for a particular method of performing a duty regulated by the statute, any deviation therefrom nullifies the entire proceedings. Counsel relied on the case of C.C.B. (Nig.) Plc v. A.G. Anambra State (1992) 8 NWLR (Pt. 261) 528 AT 556.

Learned counsel for the respondent argued that where a statute confers specific powers on any person for the performance of certain acts, it is only that person and no other that is contemplated in the performance of such acts under the relevant law. Counsel relied on the cases of Emuze v. V.C., University of Benin (2003) 10 NWLR (Pt. 828) 378 AT 401 Paras. D-E; Idegwu v. State (2015) 6 NWLR (Pt. 1455) 286 AT 308, Para. F; Skenconsult v. Ukey (2001) 40 WRN 63 AT 86- 87.

Learned counsel for the appellant in his Reply Brief of argument submitted that the presumption that the Registrar of the trial Court endorsed the words prescribed by Section 97 of SCPA and Order 3 Rule 8 (1) of the Niger State High Court (Civil Procedure) Rules having been found duly endorsed at the bottom of page 2 of the printed record is not absolute but rebuttable, we submit with respect that the burden of rebuttal rests squarely on the respondent who must produce facts showing the contrary. Counsel relied on the case of Hon. Muhibat Rufai Adeyemi & 1 Or v. Victor Olusegun Akande & 1 Or (2016) All FWLR Pt. 858 AT 703 Paras. E-F.

The crux of this appeal is on the decision of the trial Court to terminate the Writ of Summons filed in the instant case for failure to endorse on the Writ that:
“This Summons is to be served out of Niger State of Nigeria and in Lagos State”.

The learned trial judge in a considered ruling of the Court held as follows:
My attention has been called to pages 1 & 2 of the writ of summons in this case.
I have had a careful perusal of same.

Page 1, is headed,
“Writ of Summons for service out of jurisdiction”.
Both page 1 and 2 were endorsed by the Registrar of this Court.
The question is whether the above quoted heading has satisfied the requirement of the provisions of Section 97 of the Sheriffs & Civil Process Act as well as Order 3, Rules 8 of the Rules of this Court? I have no difficulty at arriving on an answer that it has not met the requirements of the said provisions of the law. The state from which it is issued and to which it was to be served was never stated. It is mandatory that a writ issued in one state to be served in another state must clearly state that it is to be served out of state ‘A’ and in state ‘B’. It has been held in the case of Skenconsult vs. Ukey, supra that all Breaches of the regulations relating to service and appearance are fundamental defects and go to the question of the competence and the jurisdiction of the Court and therefore cannot be waived in any form either by acquiescence or otherwise. Compliance with the provision is a fundamental condition precedent required before the Court can have competence and jurisdiction. Such non- compliance is not a mere irregularity as Mr. Ajekigbe would have believe.
What then is the effect of non- compliance in this case. It is fatal, for the proceedings are a nullity however, well conducted and decided. See Skenconsult vs. Ukey supra. It would follow from this that there is merit in this application and it ought to be and is hereby granted. I hold that this suit is incompetent and the Court therefore lacks jurisdiction to entertain same. The suit is hereby struck out.
Sgd.
Hon. Judge
04/12/14.
From the record of appeal, at pages 1 and 2, the Writ of Summons as transmitted shows at page 1 the following headings and information:
WRIT OF SUMMONS FOR SERVICE OUT OF JURISDICTION
IN THE HIGH COURT OF JUSTICE OF NIGER STATE OF NIGERIA
IN THE SULEJA JUDICIAL DIVISION
HOLDEN AT SULEJA.
SUIT NO: NSHC/SO/92/21
BETWEEN:
HIMMA MERCHANTS LIMITED – PLAINTIFF
AND
CONOIL PLC – DEFENDANT.
TO: CONOIL PLC
OF: BULL PLAZA
38/39 MARINA
Lagos
You are hereby commanded that within thirty (30) days after the service of this writ on you inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suit of the plaintiff HIMMA MERCHANTS LIMITED
AND TAKE NOTICE that in default of your so doing, plaintiff may proceed therein and judgment may be entered in your absence.
Dated this … day of … 2013.
BY ORDER OF THE COURT.
Then at page 2 at the bottom of the page the writ was endorsed as follows:
“This summons is to be served out of Niger State of Nigeria and in the Lagos State”.
The issue of service of a Writ of Summons is generally prescribed for by the Rules of the Court. In the instant case, the Niger State High Court (Civil Procedure Rules Order 3 Rules 8 provides as follows:
Subject to the provisions of the Sheriffs and Civil Process Act, a Writ of Summon or other originating process issued by the Court for service in Nigeria outside Niger State shall be endorsed by the Registrar of the Court with the following notice:
This summons (or as the case may be) is to be served out of Niger State in … State.
It is clearly the position of our law that the cardinal principle of interpretation of statutes is that the words of the statutes must be given their natural grammatical meaning unless doing so will occasion absurdity. No extraneous matters needs to be introduced. See Onyema vs. Oputa (1987) SC 362 at 371; Egarebua vs. Eribo(2010) 9 NWLR (Pt. 1199) 411. I have read through the provision of Section 97 of the Sheriffs and Civil Process Act, and I have not come across anywhere therein where there is provision for leave to serve originating process out of jurisdiction. What the section says is that when these processes are to be served in a State other than the State where they are issued, an endorsement to that effect should be made on the process in terms of that provision. In Izeze vs. INEC & Ors., (2018) 11 NWLR (Pt. 1629) 110, which was cited and relied upon by learned counsel for the appellant, Rhodes Vivour, JSC, who delivered the lead judgment carefully construed the provision of Section 97 of the Sheriff and Civil Process Act and came to conclusion thus:
“Service of an originating process without the endorsement as clearly stated under Section 97 (supra) is not an irregularity. It is a fundamental defect which renders the originating process void”. See the case of Omajali v. David & Ors., (2019) LPELR – 49381 (SC), per Galinje, JSC.
In the instant case, the Writ of Summons at page 2 of the record clearly indicates that:
“This Summons is to be served out of Niger State of Nigeria and in Lagos State”.
This endorsement on the Writ for all intents and purposes has met the demands of Order 3 Rule 8 and Section 97 of the Sheriffs and Civil Process Act. it beats one imagination to see that the trial Court had difficulties in accepting the endorsement as properly before the Court. It must be pointed out clearly here that the endorsement required by the law has been met and part of the responsibility rested as a badge of responsibility on the trial judge is to pursue substantial justice more than technicalities. The learned trial judge having seen the endorsement on the Writ of Summons ought to have rejected out rightly the preliminary objection. These issues are hereby resolved in favour of the appellant.

Issue Three:
This issue is – Whether the ruling delivered by the learned trial judge on 4-12-2014 more than 12 months after arguments were taken and concluded was not perverse and lead to miscarriage of justice and liable to be set aside.

Learned counsel for the appellant submitted that the decision of a Court shall not be set aside on appeal or treated as a nullity just because it was delivered outside the 90 days allowed by Section 294 (1) of the 1999 Constitution. It has also been held that where the appellant is able to satisfy the appellate Court that a miscarriage of justice has resulted to it as a result of such inordinate delay the appellate Court can nullify such decision. Counsel relied on the case of Oyegoke v. Iriguna (2001) FWLR (Pt. 75), 448 AT 462 Paras. E-F. Counsel urged the Court to allow this appeal, set aside the decision of the trial Court striking out the appellant’s suit and remitting same back for trial.

Learned counsel for the respondent submitted that the decision of a Court shall not be set aside or treated as a nullity solely on the ground that it was not delivered within the statutory period. Counsel cited Section 294 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). And an appellant, who seeks to vitiate the decision of any Court on account of non-delivery within the statutory period must go further to satisfy the Appellate Court that he has suffered a miscarriage of justice by reason of the delay. Counsel relied on the case of Akoma v. Osenwokwu (2014) 11 NWLR (Pt. 1419) 462 AT 510-511 Paras. G-C; Nagebu Co. (Nig.) Ltd v. Unity Bank Plc (2014) 7 NWLR (Pt. 1405) 42 AT 67, Paras., C-F. Counsel urged the Court to dismiss this appeal and affirm the ruling of the lower Court.

The intent of Section 294 of the Constitution is to make mandatory provision requiring that every Court hearing a matter must deliver its decision in writing not later than 90 days after the conclusion of evidence and final addresses in the case. This is necessary to prevent a situation where the facts and evidence given in the case can still be freshly within the minds of the learned judge who heard the case in order to deliver the justice required when he can appreciate consciously the evidence and the argument placed before him. The Constitution in Section 294(5) of the same Constitution however, expressly provides that failure to deliver the decision on schedule would not ordinarily cause that decision to be set aside. The Constitution requires that the case so treated can only be set aside on ground of non-compliance by an appellate Court if that Court is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof. It is therefore, certain that a breach of Section 294(1) of the Constitution does not automatically nullify the decision. It can only be nullified if it is shown that the breach has occasioned a miscarriage of justice.

In the instant case, the merit of the case was not looked at by the trial Court, so Section 294(1) does not with due respect apply in the instant case. This issue therefore, is accordingly to be struck out and it is hereby struck out.

From the foregoing consideration therefore, it is our conclusion that this appeal has merit. The appeal is hereby allowed. The Ruling delivered by the trial Court on 4th day of December, 2014; is hereby set aside. The case shall be remitted back to the Chief Judge of the FCT High Court to re-assign the case to another judge for trial and determination.

The Respondent is to pay a cost of N250,000 to the Appellant.

HAMMA AKAWU BARKA, J.C.A.: The leading judgment of my learned brother Adah JCA, was made available to me in draft before now.

My learned brother brilliantly resolved the three issues that cropped up for resolution and I totally agree that the learned trial Judge had no reason whatsoever not resolving the suit before him.

Indeed as eminently depicted on the records, the fact that the writ was to be served out of jurisdiction, appeared on the process.

The reasoning and the conclusion thereon is agreeable and I also see merit in the appeal, thus allowing the same. I agree that the case be remitted to the Chief Judge of Niger State to be decided on the merit by a Judge other than Bima J.

I also endorse the order made on costs.

DANLAMI ZAMA SENCHI, J.C.A.: I have had the opportunity of reading in draft before now the leading judgment of my learned brother STEPHEN JONAH ADAH, JCA just delivered and I agree with the finding and conclusion reached therein that this appeal has merit and it is allowed by me as well.

Accordingly, the Ruling of the High Court Niger State sitting in Suleja in suit No. NSHC/SD/92/2013 delivered on the 4th day of December, 2014 by Ahmed A Bima, J is hereby set aside. It is hereby ordered that suit No. NSHC/SD/92/2013 be and it is hereby remitted back to the Chief Judge of Niger State to be re- assign to another judge for hearing and determination.

I adopt as mine the consequential Order as to costs made in the leading judgment.