TOUTON S.A. V. GRIMALDI COMPAGNIA DI NAVIGA ZIONI S.P.A. & ORS
(2010)LCN/4152(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of December, 2010
CA/L/275/07
RATIO
PRECONDITION FOR ISSUANCE OF A WRIT FOR SERVICE OUTSIDE THE JURISDICTION OF THE COURT
By Order 6 Rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000 –
“No Writ which, or Notice of which, is to be served out of the Jurisdiction shall be issued without the leave of court”. Generally, a Plaintiff desirous of issuing a Writ for service outside the Jurisdiction of the Court files an ex-parte application seeking for leave to issue the said Writ and attaches an unsigned copy of the writ to the affidavit in support of the application. Thereafter the Plaintiff can issue same subsequent to obtaining the required leave to do so. Anything short of this renders the writ incompetent ab initio. For the avoidance of doubt, any Writ of Summons meant for service outside the Jurisdiction of the court which is issued before or without leave, is null and void. See Adegoke Motors Ltd. V. Adesanya (1959) 3 N.W.L.R. (pt.107) 250. PER JOHN INYANG OKORO, J.C.A.
RULES OF COURT: WHETHER THE PROVISIONS OF RULES OF COURT CAN OVERRIDE THAT OF A STATUTE ON A SUBJECT MATTER OR AN ISSUE
It is quite trite that the provisions of rules of court cannot override that of a statute on a subject matter or an issue. Invariably, where there is a conflict between the provisions of a statute and that of rules of court, the provisions of the statute shall prevail being superior in status. See Nwanezie V. Idris (1999) 3 N.W.L.R. (pt.279) 1 at 16 paras B-C. PER JOHN INYANG OKORO, J.C.A.
RESPONDENT’S NOTICE: PURPOSE OF A RESPONDENT’S NOTICE
In a Respondents’ Notice, a Respondent acknowledges that the lower court came to the right conclusion but for the wrong reason, and therefore seeks an affirmation of the Judgment or decision of the lower court on grounds other than those relied upon by the lower court. It is not an opportunity to raise fresh issues which had not come up for consideration before the lower court. See Delta State Government V. Dr. Effiong Johnson Okon & Anor (2002) 2 N.W.L.R. (pt.712) 665. PER JOHN INYANG OKORO, J.C.A.
DUTY PLACED ON A PLAINTIFF WHO SEEKS TO SUE A DEFENDANT RESIDENT OUTSIDE THE JURISDICTION OF THE COURT
…a Plaintiff who seeks to sue a Defendant resident outside the Jurisdiction of the court must comply with Sections 97 and 99 of the Sheriffs and Civil Process Act in addition to the various rules of court in force; and in this case, the Federal High Court (Civil Procedure) Rules 2000 and the Admiralty Jurisdiction Procedure Rules 1993. PER JOHN INYANG OKORO, J.C.A.
ISSUANCE OF WRIT: CONSEQUENCE OF A WRIT OF SUMMON NOT PROPERLY ISSUED IN ACCORDANCE WITH THE RULES OF THE COURT ON THE JURISDICTION OF THE COURT
Issuance of the Writ properly is a condition precedent to the assumption of Jurisdiction by the court. Where a Writ is not properly issued in accordance with the Rules, it is not a mere irregularity, it goes to the Jurisdiction of the court and any subsequent service of the imperfect Writ is itself a nullity as you cannot put something on nothing. See Madukolu V. Nkemdilim (1962) 2 SCNLR 34; Agip Nigeria Ltd. V. Agip Petrol International (2010) 5 N.W.L.R. (pt.1187) 348. PER JOHN INYANG OKORO, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
TOUTON S.A. Appellant(s)
AND
1. GRIMALDI COMPAGNIA DI NAVIGA ZIONI S.P.A.
2. INDUSTRIA ARMAMENTO MERIDIO-NALE S.P.A.
3. GRIMALDI GROUP Respondent(s)
JOHN INYANG OKORO, J.C.A. (Delivering the lead Judgment): By a Writ of Summons and Statement of Claim dated the January, 2006; the Plaintiff/Appellant claimed the following against the Respondents;
“1. From the 1st & 3rd Respondents jointly and severally, the sum ‘8017,441.94
2. From the 2nd and 3rd Respondents jointly and severally, the sum of ‘80100,804.41
3. Interest on the aforementioned sums at the rate of 10% per annum from 5th May, 2005 till the date of Judgment, and thereafter, at the rate of 10% per annum until the Judgment debt is fully liquidated”.
The basis of the Appellant’s claim is that the Respondents, all Italian based companies, failed to exercise due diligence or care in storing, taking care, custody and the carriage, upon its vessels – the MV “Grande Argentina”, MV “Grande America” and the MV “Grande Nigeria”, of its cargoes of 4,000; 3,200; 3,200; 800 and 1,600 bags respectively of fermented Nigerian cocoa Beans, delivered to it intact and in good order and condition, from Lagos, Nigeria to Amsterdam. The Appellant made claims on the Respondents for losses which it had suffered. The Appellant also filed a Motion Ex-parte dated 2/2/06, seeking the leave of the court to serve the writ of Summons and Statement of Claim and all other processes to be served in the suit on all the Respondents (being companies not resident in and also not carrying on business in Nigeria) by courier service at their place of business in Italy. The court granted the motion.
The Respondents thereafter entered a conditional appearance on 19th April, 2006, and filed a Motion on Notice of the same date, seeking an order striking out/and or setting aside the Writ of Summons and/or the service thereof on them on grounds that-
“(a) No leave of court was sought for and/or obtained for the issue of the Writ of Summons therein
(b) The Writ being one for service outside Jurisdiction was not so endorsed as required by relevant law, and
(c) The Writ of Summons being one for service outside the Jurisdiction cannot limit the period within which the Defendants could enter appearance to eight (8) days”.
The court below, in its Ruling delivered on 1st February, 2007, upheld the said Motion on Notice and set aside the Plaintiff/Appellant’s writ of summons and the service thereof and thereafter struck out the suit.
The Appellant, being dissatisfied with the entire decision contained in the said Ruling filed its Notice of Appeal dated 15th February, 2007 on the same date. The said Notice of Appeal, found on pp.124-126 of the record contains two grounds of appeal.
The Defendants/Respondents thereafter, fired their Respondents’ Notice dated 4th June, 2008 on 6th June 2008 of their intention to contend that the ruling of the trial court should be affirmed on two grounds other than those given in the Ruling. The Appellant has however given notice of preliminary objection to ground two of the Respondents, Notice. I shall return to this anon.
From the two grounds of appear fired by the Appellant in this appeal, the learned counsel for the Appellant has distilled two issues for the determination of this appeal thus –
“1. Was the Learned Trial Judge right in holding that the Writ of Summons is not in compliance with Section 99 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria, 1990? (Ground 1 of the Notice of Appeal);
2. Is the Writ of Summons issued in this matter valid? (Ground 2 of the Notice of Appeal)”.
The Respondents have also formulated two issues for determination viz:-
“1. Whether it is proper for the plaintiff’s Writ of Summons not to be endorsed and marked for service outside Jurisdiction as required by law and to have limited the period within which to enter appearance outside Jurisdiction to only eight (8) days? (Ground 1 of the Notice of Appeal);
2. Whether the failure to commence the suit with a valid Writ of Summons vitiated the entire proceedings? (Ground 2 of the Notice of Appeal)”.
As I can glean from the two issues formulated by both the Appellant and the Respondents, they are basically the same but couched differently. I shall however determine this appeal based on the issues as presented by the Appellant, after all, it is her appeal.
In the brief settled by Okey Egbuchu Esq., of counsel for the Appellant, it is his argument on the 1st Issue that Sections 96, 97 and 99 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990, inter alia, govern the service of civil processes of the State High Courts and Magistrate Courts out of one State into another and the Federal Capital Territory, within the borders of the Federal Republic of Nigeria, referring to the Long Title of the Act and also the title of Part VII of the same Act. He points out that the emphasis of the respective provisions stated above is that the territory mentioned is within and throughout Nigeria. It is his contention that in view of the fact that Naples, in Italy is not within the Federal Republic of Nigeria, the territory to which the Sheriffs and Civil process Act applies, the requirement of the Act regarding the service of writ of Summons do not apply to this matter.
It was the further submission of learned counsel for the Appellant that Nigeria is one territory for the purpose of the Jurisdiction of the Federal High court and as such, the Federal High court does not fall within the contemplation of Sections 96, 97 and 99 of sheriffs and civil process Act. He cites and relies on the case of Abiola V. Federal Republic of Nigeria (1995) 5 N.W.L.R. (pt.382) 203 at 241 para B and order 6 Rule 5 of the Federal High court (civil procedure) Rules 2000.
The learned counsel for the Appellant who had submitted in his writ that the sheriffs and civil process Act did not apply to the Federal High court, however made a u-turn on the issue in his reply brief after reading the case of the Owners of M. V. “Arabella” V. Nigeria Agricultural Insurance Corporation (2008) 11 N.W.L.R. (pt.1097) 782 retied upon by the Respondent on the issue. He then opined that assuming that the Appellant’s Writ did not comply with the provisions of Section 99 of the Sheriffs and Civil process Act, the proper order to make in the circumstance is to set aside the service and not to set aside the Writ and strike out the suit. He cites and relies on the case of Odu’a Investment Ltd. V. Talabi (1997) 10 N.W.L.R. (pt.523) I at 57 para H.
In his further submission, learned counsel told the court that it is Order 5 Rule 12(b) of the Admiralty Jurisdiction Procedure Rules 1993 that governs service of process outside Nigeria and that since the action is one in personam, and the Respondents reside in Naples, Italy, they were duly served by DHL Courier Service upon the order of the lower court.
Furthermore, counsel stressed that in Admiralty matters, the Jurisdiction of the Federal High Court applies to all “maritime claims, wherever arising” referring to Section 3(b) of the Admiralty Jurisdiction Act of 1991. It was counsel’s final submission on this issue that the territorial Jurisdiction of the Federal High court in Maritime claims covers any place within and outside Nigeria wherever it arises. He urged the court to resolve Issue One in favour of the Appellant.
In his reply, the learned counsel for the Respondents, Olakunle Yusuf Esq. submitted that in so far as services of processes of court outside Jurisdiction are concerned, the Sheriffs and Civil Process Act is the governing law and that any service done under any other law without compliance with the mandatory provisions of the Act shall be invalid. He relies on the case of Owners of the M.V. “Arabella” V. Nigeria Agricultural Insurance Corporation (Supra). Citing Section 64(2)(b) of the Federal High Court Act, he submitted that “High court” in the sheriffs and civil Process Act includes the Federal High Court
Learned counsel further submits that non-compliance with Section 97 and 99 of the Sheriffs and Civil Process Act renders the issuance and service of the Writ of Summons incompetent, thus depriving the court of Jurisdiction, placing reliance on the case of Sken-Consult (Nig.) Ltd. V. Ukey (1981) 7 SC 6; Nwabueze V. Obi Okoye (7955) 4 N.W.L.R. (pt.97) 644 and Odu’a Investment Ltd. V. Talabi (Supra).
On the authority of Owners of M.V. “Arabella” V. Nigeria Agricultural Insurance Corporation (Supra), learned counsel urged this court to hold that the lower court was right in declaring both the issuance and service of the Writ void and striking out same accordingly.
As regards the relationship between the sheriffs and civil Process Act and the Admiralty Jurisdiction Procedure Rules, he submitted that the provisions of the Rules cannot override that of a statute on a subject or an issue referring to the case of Nwanezie V. Idris (1993) 3 N.W.L.R. (pt.279) 7 at 76 paras B-C.
Learned counsel further submits that both the Federal High Court (Civil Procedure) Rules, 2000 and the Admiralty Jurisdiction Procedure Rules 1993 are complimentary of each other and must be read together in addition to the provisions of the Sheriffs and Civil Process Act Cap 407 LFN 1990.
Finally on this issue, learned counsel submitted that the Jurisdiction of the Federal High Court is limited to the sovereign state of Federal Republic of Nigeria. It does not extend to any place outside Nigeria and that Section 3(b) of Admiralty Jurisdiction Act, 1991 refer to “all maritime claims, wherever arising”, which means “cause of action” simpliciter, and not persons or defendants or territorial Jurisdiction. He urged this court to give the words of the section their clear and ordinary meaning citing the cases of M.F. Kent (W.A.) Ltd. v. Matchem Industries Ltd. (2000) 8 N.W.L.R. (pt.669) 459 at 473 paras E-F, A. G. Fed. V. Abubakar (2007) 10 N.W.L.R. (pt.1047) 7 at 744-745 paras H-A.
He then urged this court to resolve this issue against the Appellant.
When I first read the brief of the Appellant, I came across the argument that the Sheriffs and Civil Process Act does not apply to the Federal High Court. I thought then, that I have a Herculean task in trying to resolve the matter in view of the fact that the Respondents maintained a contrary view. However, that task has been made simple, as the learned counsel for the Appellant has made a recant of his position as contained in his Reply brief. I would have been surprised if he still maintained his earlier position in the matter. In Section 19(1) of the Sheriffs and Civil Process Act (henceforth referred to as SCPA in this Judgment), which is the interpretation section, court is defined as “includes a High Court and Magistrate Court”. As was rightly held by the court below, the Federal High Court is no doubt, a High Court. The appellation “Federal” does not make the court any other court than a High Court. Since Section 97 of SCPA applies to all High courts, it also applies to the Federal High Court, moreso, as the interpretation section did not qualify the High Court as “State” or any other qualification. As was held by the Supreme Court in Owners of the M.V. “Arabella” v. Nigeria Agricultural Corporation (2008) 71 N.W.L.R. (pt.1097) 782, Section 97 of the SCPA, and indeed any other section, has nothing to do with the coverage of the Jurisdiction of the Federal High Court which is nationwide. Section 97 and in fact S.99 also apply to the Federal High court as there is nothing to suggest to the contrary. I so hold. See section 64(2)(b) of the Federal High court Act, Cap F12 LFN 2004. I shall return to this in the course of this Judgment.
The other aspect of this issue relates to the scope of the admiralty jurisdiction of the Federal High Court. Whereas the Appellant submits that the Jurisdiction of the Federal High Court covers the whole world, the Respondents contend that the Jurisdiction covers the territory called Federal Republic of Nigeria.
Now, section 3 of the Admiralty Jurisdiction Act, 1991 states: –
“3. Application of Jurisdiction to ships etc.
Subject to the provisions of this Act, the admiralty Jurisdiction of the court shall apply to –
(a) all ships, irrespective of the places of residence or domicile of their owners; and
(b) all maritime claims, wherever arising”.
Also, Section 5(1) of the Act provides that –
“5(1) Subject to Section 6 of this Act, an action in personam may be bought in the court in all cases within the admiralty Jurisdiction of the court”.
I need to remind us here that the instant appeal relates to an action in personam. My understanding of Section 3 of the Admiralty Jurisdiction Act is that the Admiralty Jurisdiction of the Federal High court applies to ALL SHIPS irrespective of the places of residence or domicile of their owners and all maritime claims, wherever arising. What this means is that the Federal High court has Jurisdiction to entertain alt maritime claims wherever they arise, subject to section 20 of the said Act. That is to say, the court shall have Jurisdiction in the following situations:
(a) if the place of performance, execution, delivery, act or default is or takes place in Nigeria; or
(b) any of the parties resides or has resided in Nigeria; or
(c) the payment under the agreement (implied or express) is made or is to be made in Nigeria; or
(d) in any admiralty action or in the case of a maritime lien, the plaintiff submits to the Jurisdiction of the court and makes a declaration to that effect or the rem is within Nigerian Jurisdiction; or
(e) it is a case in which the Federal Government or the Government of a State of the Federation is involved and the Federal Government or Government of the State submits to the Jurisdiction of the court; or
(f) there is a financial consideration accruing in, derived from, brought into or received in Nigeria in respect of any matter under the admiralty Jurisdiction of the court; or
(g) under any convention, for the time being in force to which Nigeria is a party, the national court of a contracting State is either mandated or has a discretion to assume Jurisdiction; or
(h) in the opinion of the court, the cause, matter or action should be adjudicated upon in Nigeria.
The above provision and situations clearly show that the Jurisdiction of the Federal High Court in Admiralty matters is circumscribed. It is not at large or international. The Federal High Court is a National Court of Nigeria. Its Jurisdiction does not cover the whole world as the Appellant’s counsel would want us to hold. See Owners of the M.V. “Arabella” V. Nigeria Agricultural Insurance Corporation (Supra).
As was pointed out by the learned counsel for the Respondents, Section 3(b) of the Admiralty Jurisdiction Act 1991 which refers to “all maritime claims, wherever arising” means cause of action and subject to Section 20 thereof, the court can exercise Jurisdiction accordingly. It does not confer on the Federal High Court of Nigeria extra territorial Jurisdiction. Neither does it allow the court to criss-cross the nations of the world to bring Defendants to Nigeria without complying with relevant laws made in that regard. No party is allowed to extend or expand the language or wordings of S.3(b) of the Act or any other Act for that matter, particularly where the wordings are so clear and unambiguous. See M.F. Kent (W.A.) Ltd. V. Martchem Ind. Ltd. (2000) 8 N.W.L.R. (pt.669) 459 at 473 paras E-F; A. G. Federation V. Abubakar (2007) 70 N.W.L.R. (pt.1041) 1 at 144-145 paras H-A; Ojukwu V. Yar-adua (2009) 12 N.W.L.R. (pt.1154) 50 at 727 paras G-H.
The Appellant in this case, thinking that the Federal High Court’s Jurisdiction covers the whole world, did not see the need to comply with Section 97 and 99 of the Sheriffs and Civil Process Act in the issuance and service of his processes on the Respondents who are resident in Naples, Italy. As her counsel argued in his brief, Naples in Italy is under the Jurisdiction of the Federal High Court. The lower court held that this cannot be so. I agree.
Now, Section 99 of the SCPA states that –
“99 The period specified in a Writ of Summons for service under this part as the period within which a defendant is required to answer before the court to the Writ of Summons shall be not less than thirty days after the service of the Writ has been effected, or if a longer period is prescribed by the rules of the court within which the Writ of Summons is issued, not less than that longer period”.
As can be gleamed from the above provision, a Writ of Summons served on a defendant who resides outside the Jurisdiction of a court, must afford the said Defendant 30 days to enable him prepare and enter appearance. The use of the word “shall” in the provision makes it mandatory and admits of no discretion. See Skenconsult (Nig.) Ltd. v. Ukey (1981) 7 SC 6.
A writ which is served on a defendant, who resides in Italy (as in this case) and is required to enter appearance within eight (8) days is in breach of section 99 of the sheriffs and civil Process Act and is no doubt null and void. An act which is null and void is in law, a nullity. See Odu’a Investment Company Ltd. V. Talabi (Supra).
The failure of the Appellant to comply with section 99 of the Sheriffs and Civil process Act which is a condition precedent, renders the service of the Writ of Summons incompetent and I agree that the learned trial Judge was right to set aside the said service. See NNPC V. Elumah (1997) 3 N.W.L.R. (pt.492) 195.
In the final analysis, issue one lacks merit and is resolved against the Appellant.
The other Issue, distilled from the second ground of appeal is whether the Writ of Summons issued in this matter is valid. In paragraph 7.7 of the Appellant’s brief, he submitted that the learned trial Judge was in error when he held that the Writ was not valid and set it aside for non-compliance with Section 99 of the SCPA. Honestly, this issue ought to have been taken together with the first issue because the arguments on it are a repetition of the argument in issue one. However, I shall make a few remarks on this issue.
By Order 6 Rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000 –
“No Writ which, or Notice of which, is to be served out of the Jurisdiction shall be issued without the leave of court”.
Generally, a Plaintiff desirous of issuing a Writ for service outside the Jurisdiction of the Court files an ex-parte application seeking for leave to issue the said Writ and attaches an unsigned copy of the writ to the affidavit in support of the application. Thereafter the Plaintiff can issue same subsequent to obtaining the required leave to do so. Anything short of this renders the writ incompetent ab initio. For the avoidance of doubt, any Writ of Summons meant for service outside the Jurisdiction of the court which is issued before or without leave, is null and void. See Adegoke Motors Ltd. V. Adesanya (1959) 3 N.W.L.R. (pt.107) 250. The problem with the Appellant in this matter is his position that there is nothing like service out of Jurisdiction in this matter. I have dealt with this matter in the first issue and I do not intend to repeat it here. Maybe for emphasis, let me state it again that where the writ is one for service outside jurisdiction, issuance and service are regulated by Order 6 Rule 12 of the Federal High court (civil procedure) Rules, 2000 and section 97 and 99 sheriffs and civil process Act cap 407 LFR 1990. Though the issuance and service of a writ are interrelated, they are quite distinct and both must be fulfilled for a court of law to assume Jurisdiction over the matter. See NEPA V. Onah (1997) 1 N.W.L.R. (pt.494) 680; Nwabueze V. Obi Okoye (Supra).
It is quite trite that the provisions of rules of court cannot override that of a statute on a subject matter or an issue. Invariably, where there is a conflict between the provisions of a statute and that of rules of court, the provisions of the statute shall prevail being superior in status. See Nwanezie V. Idris (1999) 3 N.W.L.R. (pt.279) 1 at 16 paras B-C. It is my view that both the Federal High court (civil procedure) Rules 2000 and the Admiralty Jurisdiction procedure Rules 1993 are complimentary of each other and must be read together in addition to Sections 96, 97 and 99 or any other section of the sheriffs and civil process Act when considering the issuance and service of process out of Jurisdiction in Admiralty matters. Thus the fact that the AJPR provides for service on the Respondents by courier service does not take away the fact that leave must be obtained before it is issued. It has to be so endorsed and the Defendant is given 30 days to enter appearance. All this must be complete before the writ can be said to be valid. To act under the erroneous belief that the sheriffs and civil process Act and the Federal High court (civil Procedure) Rules do not apply, has rendered this writ incompetent, null and void. The court below was therefore right to set aside the unlawful service and to strike out the suit. Accordingly, issue two is also resolved against the Appellant.
Earlier in this Judgment, I did say that the Respondents had filed a Respondents’ Notice to contend that the Ruling of the lower court should be affirmed on grounds other than those relied upon by the court below vide Order 9 Rule 2 of the Court of Appeal Rules 2007. The two grounds, without their particulars are hereunder set out:-
“1. The Respondents shall contend in any event that the Plaintiff/Appellant’s Writ of Summons having been issued and served without leave of the trial court on the Defendants/Respondents for service outside Jurisdiction, the entire action is thereby vitiated and accordingly, the suit should be struck out.
2. The Respondents shall further contend that at the time of the issue of Writ of Summons aforesaid, personal service could not in law be affected on the Defendants/Respondents who were and still are outside the Jurisdiction of the court, and accordingly, substituted service cannot be ordered in the circumstances”.
At the hearing of this appeal, the learned counsel for the Appellant referred to Notice of Preliminary Objection to ground 2 of the Respondents’ Notice alleging that ground 2 raises fresh issues not relied on or canvassed by the parties or considered at the lower court. Before considering the Respondents’ Notice, I shall determine the preliminary objection.
In a Respondents’ Notice, a Respondent acknowledges that the lower court came to the right conclusion but for the wrong reason, and therefore seeks an affirmation of the Judgment or decision of the lower court on grounds other than those relied upon by the lower court. It is not an opportunity to raise fresh issues which had not come up for consideration before the lower court. See Delta State Government V. Dr. Effiong Johnson Okon & Anor (2002) 2 N.W.L.R. (pt.712) 665.
As I can see in this appear, Ground 2 of the Respondents, Notice was neither relied upon by the Respondent, nor canvassed at the lower Court? That is to say, issue of personal service on the Respondents or substituted service were not part of the case ventilated at the court below. The learned counsel for the Respondents appears to have conceded this matter as he has not made any reply to this objection. Moreover, both the Appellant and the Respondent have distilled one issue each from the 1st ground of objection only. The said objectionable second ground appears to have been abandoned. I have no choice than to strike out the second issue. Accordingly, ground 2 in the Respondents’ Notice is hereby struck out.
The lone issue formulated by the Appellant from ground 1 of the Respondents’ Notice states:-
“Is it a requirement of the Rules of court for the Plaintiff/Appellant to obtain the leave of the court for the issue of the Writ of Summons?”
The Respondents issue in this matter is couched thus –
“Whether the court below could assume and exercise Jurisdiction over the Appellant’s claim when it is apparent that the issuance and service of the Writ thereof on the Respondents who are outside the Jurisdiction of the court are void ab initio”.
I do not intend to over-flog this issue having spent time to do so earlier in this appeal. For the avoidance of doubt and at the risk of sounding prolix, let me emphasis that a Plaintiff who seeks to sue a Defendant resident outside the Jurisdiction of the court must comply with Sections 97 and 99 of the Sheriffs and Civil Process Act in addition to the various rules of court in force; and in this case, the Federal High Court (Civil Procedure) Rules 2000 and the Admiralty Jurisdiction Procedure Rules 1993. As to whether the Sheriffs and Civil Process Act and Federal High Court (Civil Procedure) Rules apply to Admiralty proceedings, I have already settled this and do not intend to repeat the exercise.
Quite frankly, the refusal of the Appellant to obtain the leave of court to issue the Writ and his failure to have it endorsed for service outside Jurisdiction on the reason that the Federal High Court has Jurisdiction over the whole world has no doubt vitiated this case. Issuance of the Writ properly is a condition precedent to the assumption of Jurisdiction by the court. Where a Writ is not properly issued in accordance with the Rules, it is not a mere irregularity, it goes to the Jurisdiction of the court and any subsequent service of the imperfect Writ is itself a nullity as you cannot put something on nothing. See Madukolu V. Nkemdilim (1962) 2 SCNLR 34; Agip Nigeria Ltd. V. Agip Petrol International (2010) 5 N.W.L.R. (pt.1187) 348.
I agree that quite apart from the reason given by the learned trial Judge in his Judgment that failure to comply with Section 99 of the Sheriffs and Civil Process Act vitiated these proceedings. This Judgment can and is also affirmed on the ground that the Appellant failed to obtain leave before issuing the Writ for service outside the Jurisdiction of the Federal High Court.
On the whole, it is my well considered opinion that based on the foregoing analysis of the issues submitted for determination and the relevant laws and rules of court considered, this appeal is devoid of merit whatsoever. It is hereby dismissed by me. I affirm the Judgment of the court below both on the reason given by the learned trial Judge and the one in ground one of the Respondents’ Notice. I award cost of N30,000.00 in favour of the Respondents.
ADZIRA GANA MSHELIA, J.C.A: I have had the opportunity of reading in draft the judgment just delivered by my learned brother Okoro, J.C.A. I entirely agree with the reasoning and conclusions arrived thereat. My learned brother has comprehensively dealt with all the issues raised in this appeal. I have nothing useful to add but to adopt same as mine. I too dismiss the appeal. I also abide by all other consequential orders made in the lead judgment inclusive of costs.
MOHAMMED A. DANJUMA, (J.C.A): I have had a preview of the lead Judgment of my learned brother, John Inyang Okoro JCA and I agree entirely with his reasoning and conclusion that this appeal has no merit.
I shall only state in brief that the Appellant as plaintiff neither sought for nor was granted leave for the writ of summons to issue out of Jurisdiction nor was the writ endorsed to the effect that the service was to be out of Jurisdiction. The return date of the writ was also not expressed to be for service within a period of not less that 30 days, all as required for the service of a writ of summons on a defendant (in this case, the Respondent) who was out of Jurisdiction and precisely at Naples in Italy.
This is the requirement of sections 97 and 99 of the sheriff and civil Process Act, LFN 2004.
The non-compliance with the aforestated provisions of the Law did not only render both the issuance and service of the writ of summons void, but divested the court of any jurisdiction upon the incompetent process.
The process was therefore, rightly set aside and the suit founded thereron rightly struck out.
The Appeal is also dismissed by me. I adopt the order made as to costs.
Appearances
Okechukwu Egbuchu, Esq. with Dotun Kazeem Esq.For Appellant
AND
Ayo Olorunfemi, Esq. with Bukola Ade-Makanjuola (Miss) and R. Oduba, Esq.For Respondent
