NIGERIA MARITIME ADMINISTRATION & SAFETY AGENCY & ANOR v. NOBLE DRILLING NIGERIA LIMITED
(2013)LCN/6592(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of December, 2013
CA/L/864/2009
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. NIGERIA MARITIME ADMINISTRATION & SAFETY AGENCY
2. THE MINISTER OF TRANSPORT Appellant(s)
AND
NOBLE DRILLING NIGERIA LIMITED Respondent(s)
RATIO
THE LAW OF STATUTORY INTERPRETATION
There are many authorities of the apex court on the rules of interpretation of Statutes. I would say that the law on the point is trite and not subject to guess work.
In the case of Awuse v. Odili (2003) 18 NWLR (pt. 851) 116, Niki Tobi, JSC observed:
“The law of statutory interpretation is elementary and it is that if a language of a statute is clear, the courts must give the words their ordinary meaning in its interpretation of the statute. That is the principle of literal interpretation, which must be followed, unless it will lead to absurdity and inconsistency with the provisions of the Statute as a whole”
See also the cases referred to in the Respondent’s brief of argument: Isaac Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (Pt. 1247) 465 @ 491E; Senator Joy Emordi v. Hon. Alphonsus Uba Igbeke & others (2011) 9 NWLR (Pt. 1251) 24 @ 3 SC & 38 D-E; Honourable Gabriel Yunisa Olofu & Ors v. Mr. Michael Adejoh Itodo (2010) 18 NWLR (Pt. 1225) 545 @ 577 D.
In Attorney-General of Ondo State v. Attorney-General of Ekiti State (2001) 17 NWLR (Pt. 743) 706 Karibi-Whyte JSC observed:
“……. This is in accord with the accepted principle of interpretation expressed in the Latin maxim expression unius est exclusio alterius or expressum facit cessare tacitum.
The two related principles mean firstly that “to state a thing expressly ends the possibility that something inconsistent with it is implied. Secondly “to express one thing is implied to exclude another” which is an aspect of the latter. This principle of construction is applied where a statutory proposition might have covered a number of matters but in fact mentions only some of them. Unless those mentioned are mentioned only as examples, or ex abundant cautela, or for some other sufficient reason, the rest are taken to be excluded from the proposition.”Section 19 (1) of the sheriff and Civil process Act provides:
“In this Part and Parts IV, V and VI, unless the con otherwise requires”
…”court” includes the High Court and a magistrate’s court;
The same section defines “High Court” thus:
“High court” means the High court of the Federal Capital Territory Abuja or of the State”
The specific exclusion of Federal High Court in the definition of “High Court” while mentioning the High Court of the Federal Capital Territory Abuja, a court that came into being later than the Federal High Court means that it was not intended that the provisions of Parts IV, V and VI of the Sheriff and Civil Process Act should apply to Federal High Courts. In line with the provision in Section 19(1) of the Sheriff and Civil Process Act, Order 13 Rule 31 of the FHC Rules 2000, states clearly that “In this order “Out of Jurisdiction” means out of the Federal Republic of Nigeria”. These provisions as most ably submitted in the Respondent’s brief appear to support the view there was no violation of the provisions of Order 7 rule 7(i) of the Federal High Court (Civil Procedure) Rules, 2000 and Sections 96, 97, and 99 of the Sheriffs and Civil Process Act, 2004 as the service was within the Federal Republic of Nigeria. But then, there is the Supreme Court judgment in Owners of the MV Arabella v. NAIC (2008) 11 NWLR (Pt. 1097) 182 to contend with. PER IYIZOBA, J.C.A.
THE DOCTRINE OF JUDICIAL OF STARE DECISIS
In the case of Dalhatu v. Saraki (2003) 15 NWLR (Pt. 843) 310 @ 336 E-F, Katsina-Alu, JSC observed:
“This court is the highest and final court of appeal in Nigeria. Its decisions bind every court, authority or person in Nigeria. By the doctrine of stare decisis, the courts below are bound to follow the decisions of the Supreme Court. The doctrine is a sine qua non for certainty to the practice and application of law. A refusal, therefore, by a Judge below to be bound by this court’s decision, is gross insubordination.”
In his contribution @ page 350 of the judgment Edozie JSC said:
“The doctrine of judicial precedent otherwise known as stare decisis is not alien to our jurisprudence. It is a well settled principle of judicial policy which must be strictly adhered to by all lower courts. While such lower courts may depart from their own decisions reached per incuriam they cannot refuse to be bound by decisions of higher courts even if those decisions were reached per incuriam. The implication is that a lower court is bound by the decision of a higher court even where that decision was given erroneously: See Emerah & Sons Ltd. v. Attorney-General Plateau State & Ors (1999) 4 NWLR (Pt. 147) 788; Gbobal Trans Occeanico S. A. v. Free Ent. (Nig.) Ltd. (2001) 5 NWLR (Pt. 706) 426 @ 441.”
The only court that can do something about the very well articulated arguments of both counsels is the Supreme Court. I hope therefore that one day; these issues will be put before the apex court for a re-assessment of its decision in MV Arabella (supra). PER IYIZOBA, J.C.A.
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): By an Originating Summons issued on the 24th day of January 2008, the Respondent commenced suit no. FHC/L/CS/78/2008 at the Federal High Court Lagos seeking the determination of the following questions namely:-
1. Whether drilling operations fall within the definition of ‘coastal trade’ or ‘cabotage’ under Section 2 of the Coastal and Inland Shipping (Cabotage) Act 2003 (Cabotage Act).
2. Whether, upon a proper interpretation of the Cabotage Act particularly the provisions of Sections 2, 5 and 22(5) thereof, drilling rigs fall within the definition of ‘vessel’ under the said Cabotage Act.
3. Whether the Minister of Transportation acted ultra vires his powers under the Cabotage Act to make regulations when in Clauses 9.1.1. of the Guidelines on the implementation of the Coastal and Inland Shipping (Cabotage) Act issued in April 2007 (the Guidelines) he included ‘Rigs’ under the classification of vessels to be subject to waiver fees under the cabotage Act.
The Respondent prayed for the following reliefs:-
1. A DECLARATION that drilling operations do not fall within the definition of ‘coastal trade’ or cabotage, under Section 2 of the Coastal and Inland Shipping (Cabotage) Act 2003.
2. A DECLARATION that drilling rigs are not within the purview of the definition of vessels under the Coastal and Inland Shipping (Cabotage) Act 2003 and therefore are not subject to the said Act.
A DECLARATION that the Minister of Transportation acted ultra vires his powers under the Cabotage Act to make guidelines or regulations when in Clause 9.1.1 of the Guidelines he included ‘Rigs’ under the classification of vessels to be subject to waiver fees under the Cabotage Act which act is therefore null and void.
4. AN ORDER of perpetual injunction restraining the Defendants, whether by themselves, their assigns, servants, agents, privies or representatives from disturbing, obstructing, hampering or in any other manner whatsoever interfering with the Plaintiff’s drilling operations or drilling rigs operated by the plaintiffs on grounds of non-compliance with the Coastal and Inland Shipping (Cabotage) Act 2003.”
The Respondent’s reasons for filing the originating summons were that contrary to the letters written by the 1st Appellant demanding 2% surcharge of contract sum performed by all vessels (chartered and company-owned) engaged by the Respondent in offshore and midstream activities, the rigs operated by it were engaged solely in drilling operations which were not marine operations. It also claimed that since the rigs operated by it were not vessels under the Cabotage Act, the Respondent was not liable to pay the 2% surcharge on contract sum relating to its rigs under the Cabotage Act.
After entering a conditional appearance, the Appellant filed a notice of preliminary objection to the suit being brought by originating summons. They also filed counter-affidavit and a counter-claim. With the leave of court they filed a further and better counter-affidavit with several exhibits. The gist of the Appellants’ defence is that the Respondent’s listed drilling rigs were vessels under the Cabotage Act; that they were involved in activities that were cabotage under the Cabotage Act; that the Respondent was one of the major debtors of the 1st Appellant under the 2% cabotage surcharge amounting to US$15,150,000.00 which they counter claimed for. In their notice of preliminary objection that the action was wrongly commenced by originating summons, they prayed that the originating summons be struck out or converted to a Writ of Summons for the parties to file pleadings. The written address of the parties were duly adopted. The lower Court delivered its Ruling on 21/10/08 dismissing the preliminary objection and holding that the action as constituted had been properly commenced by originating summons and that the appropriate step for the Appellants it they wanted to pursue their counter claim was to institute an action. The learned trial judge directed parties to file written arguments on the Originating Summons.
The parties thereupon filed and adopted their written addresses on the originating summons and the lower court delivered its judgment granting all the reliefs sought by the Respondent.
Being dissatisfied with the Judgment, the Appellants filed a notice of appeal. With the leave of the court pursuant to a Motion they filed to amend their notice and grounds of appeal and for leave to raise and argue fresh points, the Appellants filed an amended notice of appeal with seven grounds of appeal.
The parties exchanged briefs of argument and at the hearing of the appeal on the 6th day of November, 2013 they adopted their respective briefs. The Appellants formulated the following issues from their grounds of appeal:
1. Should the learned trial Judge have declined jurisdiction to hear and entertain this suit when the conditions precedents to the exercise of that jurisdiction were not met by the Respondent? (Ground 1)
In the alternative to issue 1 above:-
2. Whether the Appellants’ right to fair hearing was not infringed when their counter-claim was not heard and determine along with the claims filed by the Respondent and not considered in arriving at his Lordship’s judgment? (Ground 2).
3. Whether the Respondents’ drilling rigs operating within the Nigeria cabotage zone are ‘vessels’ and their drilling operations are ‘cabotage’ or coastal trade’ within the meanings of the words ‘vessel’ and ‘cabotage’ or ‘coastal trade’ under the Cabotage Act so as to bind the Respondent to pay the 2% surcharge on such operations to the Appellant and the learned trial Judge was not wrong in holding that they were not? (Grounds 3 and 4).
4. Whether the Court below should have read the Cabotage Act and Guidelines as a whole and applied the ‘mischief rule’ of interpretation of statutes in discovering the intention of the legislature in the Cabotage Act and its Guidelines with respect to the interpretative matters submitted to it for adjudication which would have led to a dismissal in this case? (Ground 5).
5. Whether the listing of rigs by the 2nd Appellant under clause 9.1.1. of the Guidelines under the caption ‘Foreign Vessel’ to be subject to waiver fees under the Cabotage Act, is wrong? (Ground 6).
6. Whether the learned trial Judge was right in granting injunction restraining the Appellants’ from performing their statutory duties? (Ground 7).
From the seven grounds of appeal filed by the Appellants in their amended notice of appeal, the Respondent distilled the following issues for determination:
1. Whether service of the originating summons in suit number FHC/L/CS/78/08 on the 2nd Appellant was improper and affected the jurisdiction of the learned trial Judge to hear and determine the suit? (Ground 1)
2. Whether the Appellants’ constitutional right to fair hearing was infringed when the learned trial judge refused to allow them to bring a counter-claim in suit number FHC/L/CS/78/2008 and which intended counter claim was not considered in his final judgment (Ground 2).
3. Whether the learned trial judge was right in holding that drilling rigs and drilling operations are not subject to the Coastal and Inland Shipping (Cabotage) Act 2003? (Grounds 3, 4, 5)
4. Whether the learned trial judge was right in holding that the listing of rigs by the 2nd Appellant under Clause 9.1.1 of the Guidelines for Implementation of the Coastal and Inland shipping (Cabotage) Act 2003 was ultra vires the powers of the 2nd Appellant? (Ground 6)
5. Whether the learned trial judge was right in granting Respondent’s injunctive reliefs? (Ground 7)
The Appellants’ issues are basically the same as those of the Respondent. I shall adopt the Appellant’s issues in the determination of this appeal.
ISSUE ONE:
Should the learned trial Judge have declined jurisdiction to hear and entertain this suit when the conditions precedent to the exercise of that jurisdiction were not met by the Respondent? (Ground 1).
APPELLANTS’ ARGUMENTS:
It was submitted for the Appellants that the authority for the service of a writ of summons or an originating summons outside the area of jurisdiction of a State High Court which issued it but within Nigeria, is a matter within the exclusive legislative competence of the National Assembly and the Federal Government and so, it is governed by Section 96 Sheriffs and Civil Process Act cap. 56, Vol.14, Laws of the Federation of Nigeria, 2004, which is an Act of the National Assembly. Learned Counsel referred to Nwabueze v. Okoye (1989) 4 NWLR (Pt. 97) 664. Further, citing several authorities particularly owners of the MV Arabella v. NAIC (2008) 11 NWLR (Pt. 1097) 182; Union Beverages Ltd v. Adamite Co. Ltd (1990) 7 NWLR (Pt. 162) 348; Bello v. NBN Ltd (1992) 6 NWLR (Pt. 246) 206; Touton S. A. v. Grimaldi Compagnia Di Naviga Zioni S.P.A. (2011) 4 NWLR (Pt. 1236) 1, he submitted that the originating summons used to commence this suit violated the clear provisions of order 7 rule 7(i) of the Federal High Court (Civil Procedure) Rules, 2000 and sections 96, 97, 98 and 99 of the Sheriffs and Civil Process Act, 2004. Counsel contended that in view of the decisions in Touton S. A. v. Grimaldi Compagnia Di Naviga Zioni S.P.A. (2011) 4 NWLR (Pt. 1236) 1 and Bello v. NBN Ltd. (1992) 6 NWLR (Pt. 246) 206, Order 13 Rule 31 of the applicable Federal High Court (Civil Procedure) Rules 2000 which provides that “out of jurisdiction” (which would require leave to issue and serve such court process) means out of the Federal Republic of Nigeria, is wrong, ineffectual and inapplicable. Counsel argued that being a subsidiary legislation it cannot override the provisions of an Act of the National Assembly which the Sheriffs and Civil Process Act is. Counsel contended that mandatory rules of the Federal High Court on the definition of ‘outside jurisdiction’ cannot override mandatory provisions of a statute such as Sheriffs and Civil Process Act on same issue. He cited Nasir v. Civil Service Commission, Kano State (2010) 6 NWLR (Pt. 1190) 253 at 276.
Counsel referred to the case of Madukolu v. Nkemdilim, (1962) All NLR (Part 2) 531 at 589/590, and submitted that the failure of the Respondent to apply for and obtain leave to issue and serve the originating summons herein on the 2nd Appellant in Abuja and endorse the said originating summons as required by Section 97 of the Sheriffs and Civil Process Act before it was issued and served, amount to non-compliance with conditions precedent to the exercise of the jurisdiction of the lower court and that such leave is not granted by the court suo motu without the Plaintiff having applied for it or granted as a matter of course or mere formality for the discretion to grant it must be exercised judicially. He argued that Section 97 of the Sheriffs and Civil Process Act is mandatory and that where there is a failure to comply with the requirement of Sections 96, 97 and 98 of the Sheriff and Civil Process Act and Order 7 rule 7(i) of the Federal High court (Civil Procedure Rules) 2000 it is fatal and the issue is not one of irregularity but a nullity. Counsel submitted that in line with the principle enunciated in Madukolu case, the lower court was incompetent and lacked the jurisdiction to hear and determine the suit.
The suit ought to have been struck by the lower court. Counsel submitted that issues of a court’s incompetency and want of jurisdiction can be raised at any stage of the proceedings and even on appeal. He referred to the Supreme Court case of Drexel Energy and Natural Resources Ltd. v. Trans International Bank Ltd. (2008) 18 NWLR (Pt. 1119) 389 @ 417 where it was held that these pre-conditions are conjunctive and the non-fulfillment or absence of any of them automatically robs the court of the jurisdiction to hear and determine the suit. Counsel contended that an incompetent process remains without legal value no matter how long it took to raise the matter. He prayed the court to answer issue one in the affirmative.
RESPONDENT’S ARGUMENTS:
Learned counsel for the Respondent in reply to the submissions of the Appellants above submitted that Section 19 (1) under Part iii of the Sheriffs and Civil Process Act states that “In this Part and Parts IV, V and VI, unless the con otherwise requires”… “court” includes the High Court and a magistrate’s court;” The same section in defining the term “High Court” states as follows “the High Court” means the High Court of the Federal Capital Territory Abuja or of the State” Referring to the cases of Isaac Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (pt. 1247) 465 at 491 paragraph E; Senator Joy Emordi v. Hon. Alphonsus Uba Igbeke & others (2017) 9 NWLR (pt. 1251) 24 at 35 paragraph C and 38 paragraphs D-E; Honourable Gabriel Yunisa Olofu and others v. Mr. Michael Adejoh Itodo (2010) 18 NWLR (pt. 1225) 545 at page 577 paragraph D, Learned counsel submitted that where the provisions of a statute are clear, plain and unambiguous, it should be accorded the ordinary meaning. He argued that the definitions of “court” and “High Court” reproduced above are clear and unambiguous. The reference is to the High Court of the Federal Capital Territory Abuja and of a state and that the use of the word “means” in the section puts it beyond doubt that the definition is complete and conclusive. Learned counsel argued that Part vii of the Sheriffs and Civil Process Act which provide for service of processes specifies under Section 95 thereof that “In this Part unless the con otherwise requires – “court” means a court to which Parts III, IV, V, and VI apply”. Further that as already shown from the clear provisions of the Sheriffs and Civil Process Act reproduced above, the court to which Parts III, IV, V, and VI of that Act apply is the Magistrate Court, High Court of the Federal Capital Territory Abuja and of the states. The Federal High Court is not included. Counsel submitted that it is that Part VII of the Sheriffs and Civil Process Act within which are Sections 96, 97, 98 and 99 does not apply to the Federal High Court. Learned counsel submitted that the definition of “High Court” under Section 19 (t) of the Sheriffs and Civil Process Act was not considered by the Supreme Court in the case of Owners of the MV Arabella v. Nigerian Agricultural Insurance Corporation (2008) 11 NWLR (pt. 1097) 182 and by this Court in the case of Touton S. A. v. Grimalcli Compagnia Di Naviaa Zioni SPA (2011) 4 NWLR (pt. 1236) 1 relied on by the Appellants in their Brief.
4.1.1. To buttress their argument that the plain words of the Sheriffs and Civil Process Act that the High Court referred to therein “means the High Court of the Federal Capital Territory Abuja or of the State” and does not include the Federal High Court counsel called in aid the history of the Sheriffs and Civil Process Act. Counsel submitted that the Act first made its appearance in our statute books in 1945 and then was later found in the 1958 compilation of the laws of the Federation. By the time of the compilation of the Laws of the Federation in 1990, the Federal High Court had been established in 1973 while the High Court of the Federal Capital Territory, Abuja came into being in 1975. Learned counsel argued that upon the compilation of the Laws of the Federation of Nigeria 1990, the legislature saw it necessary to include the High Court of the Federal Capital Territory Abuja in the definition of High Court in the Sheriffs and Civil Process Act but did not include the Federal High Court, even though the Federal High Court came into being in 1973 before the High court of the Federal Capital Territory. Counsel submitted that the Federal High court was never intended to be included in the definition of court to which the Sheriffs and Civil Process Act applies.
Learned counsel submitted that this Court is not bound to follow the decision of the Supreme Court in the MV Arabella (supra) because the Supreme Court only considered the definition of ‘court’ but did not consider the definition of “High Court” under Section 19(1) of the Sheriffs and Civil Process Act in arriving at the decision in the MV Arabella case (supra). Counsel contended that the Federal High Court (Civil Procedure) Rules 2000 were made by the Chief Judge of the Federal High Court pursuant to powers conferred by Section 44 FHC Act and that in line with the jurisdiction of the court as specified under Section 19 (1) of the FHC Act, Order 13 Rule 31 of the FHC Rules 2000, states clearly that “In this order “Out of Jurisdiction” means out of the Federal Republic of Nigeria”. Counsel submitted that contrary to the submissions of learned counsel for the Appellant, this provision of Order 13 Rule 31 does not contradict the Sheriffs and Civil Process Act as there is no nexus between the two. It was argued that the FHC Rules 2000 is a subsidiary legislation of the FHC Act; that they are consistent with and form part of the provisions of that Act. It was further argued that the FHC Act is an extant statute of the National Assembly and is later in time to the Sheriffs and Civil Process Act. Thus even where there is a conflict between the provisions of the Sheriffs and Civil Process Act and the FHC Act, the FHC Act being the latter legislation will prevail. Counsel submitted that there is however no conflict between the two statutes because the provisions of the Sheriffs and Civil process Act expressly and clearly specify the “High court” they apply to as “the High Court of the Federal Capital Territory Abuja or of the State” while the Federal High Court Act applies to only the Federal High Court. Consequently, issuance and service of originating processes at the Federal High Court is governed by the FHC Act and its subsidiary legislation, the FHC Rules. Counsel submitted that service of the originating processes in suit number FHC/L/CS/78/08 on the 2nd Appellant, which was done in accordance with the FHC Act was properly done and valid.
Learned counsel submitted that even in a situation where service on one defendant is improper, the effect of same would be that service on that defendant will be set aside while the court will assume jurisdiction over defendants who were properly served. Counsel further submitted that learned counsel for the Appellants misinterpreted the provision in Order 7 rule 6 of the FHC Rules. He submitted that the provision applies in a situation where the proposed suit is against more than one respondent and one or some of them reside outside jurisdiction. By virtue of order 7 rule 7(1) leave is required to issue the originating summons for service on the respondent outside jurisdiction but not for the respondent within jurisdiction. Order 7 rule 6 is to enable the Plaintiff issue the originating summons for service within jurisdiction which does not require leave while waiting to obtain leave to issue the process for service outside jurisdiction. Failure to properly issue or serve the originating summons for service outside jurisdiction, does not affect the issue or service of the process on the respondent within jurisdiction. Counsel submitted that even assuming without conceding that the issue or service of the originating summons on the 2nd Appellant was not proper in any manner, this cannot detract from the valid service of the process on the 1st Appellant and the court is entitled to assume jurisdiction over it. Learned counsel referring to the cases of Alhaji Umaru Sanda Ndayako & Ors v. Alhaji Haliru Dantoro & Ors (2004) 13 All NWLR (Pt. 889) 187 @ 219 E-H; Ntoe Andrew O. Ansa & Ors. v. Sunday Isaac Ntuk & Ors. (2009) 9 NWLR (Pt. 1147) 557 @ 582 B-D; Mr. Sylvester Mako v. Barrister Felicia B. Umoh (2010) 8 NWLR (Pt. 1195) 82 @ 108 – 109 H-B, 110-111 H-B submitted that as the 2nd Appellant did not raise this issue of proper service in compliance with the Sheriffs and Civil process Act at the Federal High Court, but actively participated in the suit until judgment, it is estopped from raising the issue at this stage. He finally submitted that the issue and service of the originating summons in suit number FHC/L/CS/78/08 on the 2nd Appellant was proper and valid and that the service did not and could not have affected the jurisdiction of the learned trial judge to hear and determine the suit. He urged the court to resolve issue one in favour of the Respondent.
RESOLUTION OF ISSUE ONE:
I have considered carefully the submissions of counsel. No doubt the arguments on both sides are strong and compelling. There are many authorities of the apex court on the rules of interpretation of Statutes. I would say that the law on the point is trite and not subject to guess work.
In the case of Awuse v. Odili (2003) 18 NWLR (pt. 851) 116, Niki Tobi, JSC observed:
“The law of statutory interpretation is elementary and it is that if a language of a statute is clear, the courts must give the words their ordinary meaning in its interpretation of the statute. That is the principle of literal interpretation, which must be followed, unless it will lead to absurdity and inconsistency with the provisions of the Statute as a whole”
See also the cases referred to in the Respondent’s brief of argument: Isaac Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (Pt. 1247) 465 @ 491E; Senator Joy Emordi v. Hon. Alphonsus Uba Igbeke & others (2011) 9 NWLR (Pt. 1251) 24 @ 3 SC & 38 D-E; Honourable Gabriel Yunisa Olofu & Ors v. Mr. Michael Adejoh Itodo (2010) 18 NWLR (Pt. 1225) 545 @ 577 D.
In Attorney-General of Ondo State v. Attorney-General of Ekiti State (2001) 17 NWLR (Pt. 743) 706 Karibi-Whyte JSC observed:
“……. This is in accord with the accepted principle of interpretation expressed in the Latin maxim expression unius est exclusio alterius or expressum facit cessare tacitum.
The two related principles mean firstly that “to state a thing expressly ends the possibility that something inconsistent with it is implied. Secondly “to express one thing is implied to exclude another” which is an aspect of the latter. This principle of construction is applied where a statutory proposition might have covered a number of matters but in fact mentions only some of them. Unless those mentioned are mentioned only as examples, or ex abundant cautela, or for some other sufficient reason, the rest are taken to be excluded from the proposition.”
Section 19 (1) of the sheriff and Civil process Act provides:
“In this Part and Parts IV, V and VI, unless the con otherwise requires”
…”court” includes the High Court and a magistrate’s court;
The same section defines “High Court” thus:
“High court” means the High court of the Federal Capital Territory Abuja or of the State”
The specific exclusion of Federal High Court in the definition of “High Court” while mentioning the High Court of the Federal Capital Territory Abuja, a court that came into being later than the Federal High Court means that it was not intended that the provisions of Parts IV, V and VI of the Sheriff and Civil Process Act should apply to Federal High Courts. In line with the provision in Section 19(1) of the Sheriff and Civil Process Act, Order 13 Rule 31 of the FHC Rules 2000, states clearly that “In this order “Out of Jurisdiction” means out of the Federal Republic of Nigeria”. These provisions as most ably submitted in the Respondent’s brief appear to support the view there was no violation of the provisions of Order 7 rule 7(i) of the Federal High Court (Civil Procedure) Rules, 2000 and Sections 96, 97, and 99 of the Sheriffs and Civil Process Act, 2004 as the service was within the Federal Republic of Nigeria. But then, there is the Supreme Court judgment in Owners of the MV Arabella v. NAIC (2008) 11 NWLR (Pt. 1097) 182 to contend with. In that case a suit was instituted in the Federal High Court Lagos. Service on the Respondent was effected in Abuja. The Respondent filed a preliminary objection alleging inter alia that the writ of summons was improperly issued and served. The objection was upheld by the trial court and the writ of summons and its service was set aside. The Court of Appeal affirmed the judgment on this particular point. On further appeal to the Supreme Court, the SC held unequivocally thus:
“The Sheriffs and civil process Act (Cap 402, Laws of the Federation of Nigeria, 1990), according to its heading, is ‘an Act to make provisions for the appointment and duties of Sheriffs, the enforcement of judgments and orders, and the service and execution of civil process of the courts throughout Nigeria’. In section 19(1) of the Act, which is the interpretation section ‘Court’ as defined ‘includes a High Court and a Magistrate Court’. It is not in doubt that the provisions of the said section 97 of the act are applicable in all High Courts, including the Federal High Court. The said provisions in my view have nothing to do with the coverage of the jurisdiction of the Federal High Court, which is nation-wide. It is therefore a total misconception to believe that the provisions of the section are inapplicable to the Federal High Court because the jurisdiction of that court covers the entire nation.”
The Supreme Court has spoken! Learned counsel for the Respondent invited the court to depart from the decision of the Supreme Court in the MV Arabella (supra) because this Court is in this appeal being called upon to consider a provision of statute not considered by the Supreme Court in arriving at the decision Counsel had argued that the Supreme Court only considered the definition of ‘court’ but did not consider the definition of “High Court” under Section 19(1) of the Sheriffs and Civil Process Act in arriving at a decision in the MV Arabella case (supra). She further referred us to the unreported case of Engineer Okey Ibeabuchi & Ors v. Mr. Samuel Ikpokpo & Ors in suit No CA/PH/406/2009, where she claimed the Port Harcourt Division of this Court in its ruling of 16th January 2013, declined to follow a decision of the Supreme Court in the case of Aloysius Akpaji v. Francis Udemba (2009) 6 NWLR (pt. 1138) 545 SC where it was shown that a provision not considered by the Supreme Court in arriving at the decision in that case was placed before the court for consideration. I am afraid the doctrine of stare decisis forbids us taking such a step. In the case of Dalhatu v. Saraki (2003) 15 NWLR (Pt. 843) 310 @ 336 E-F, Katsina-Alu, JSC observed:
“This court is the highest and final court of appeal in Nigeria. Its decisions bind every court, authority or person in Nigeria. By the doctrine of stare decisis, the courts below are bound to follow the decisions of the Supreme Court. The doctrine is a sine qua non for certainty to the practice and application of law. A refusal, therefore, by a Judge below to be bound by this court’s decision, is gross insubordination.”
In his contribution @ page 350 of the judgment Edozie JSC said:
“The doctrine of judicial precedent otherwise known as stare decisis is not alien to our jurisprudence. It is a well settled principle of judicial policy which must be strictly adhered to by all lower courts. While such lower courts may depart from their own decisions reached per incuriam they cannot refuse to be bound by decisions of higher courts even if those decisions were reached per incuriam. The implication is that a lower court is bound by the decision of a higher court even where that decision was given erroneously: See Emerah & Sons Ltd. v. Attorney-General Plateau State & Ors (1999) 4 NWLR (Pt. 147) 788; Gbobal Trans Occeanico S. A. v. Free Ent. (Nig.) Ltd. (2001) 5 NWLR (Pt. 706) 426 @ 441.”
The only court that can do something about the very well articulated arguments of both counsels is the Supreme Court. I hope therefore that one day; these issues will be put before the apex court for a re-assessment of its decision in MV Arabella (supra).
The effect of the judgment of the Supreme Court in MV Arabella is that service outside the jurisdiction of Federal High Court Lagos and in Abuja is service outside jurisdiction and that the provisions of Order 7 rule 7(i) of the Federal High Court (Civil Procedure) Rules, 2000, (the Rules applicable when this suit was filed) must be complied with. The Respondent must apply for and obtain the leave of the lower Court before the issue of the Originating Summons by the lower Court. In addition the
Respondent must comply with Sections 96, 97, 98 and 99 of the Sheriffs and Civil Process Act 2004. The provisions have been held to be mandatory and that failure to comply means that the case was not initiated by due process of law, and upon the fulfillment of all conditions necessary for the exercise of the Court’s jurisdiction. Such defect is deemed fatal and the proceedings however well conducted and decided a nullity. Din v. AGF (1988) 4 NWLR (Pt.87) 47; Auto Import v. Adebayo (2002) 18 NWLR (Pt.799) 554; Nwaegwugwu v. President FRN (2007) 6 NWLR (Pt. 1030) 23; MV Arabella v. NAIC (2008) 11 NWLR (Pt. 1097) 182 at 205/6. In the circumstances, there is no option here other than to declare the Ruling (sic judgment) of Abutu J. of the Federal High Court Lagos in suit no. FHC/L/CS/78/2008 delivered on the 17th day of August 2009 a nullity. This appeal succeeds and it is hereby allowed. The judgment is set aside as a nullity. In its place the suit is struck out. I make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA, JCA.
I agree with the reasoning and conclusion reached therein, that this appeal succeeds and it is hereby allowed. The judgment is set aside as a nullity. In its place the suit is struck out. I also make no order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother Chinwe Eugenia Iyizoba, J.C.A.
My lord has duly covered the field in the reasoning and conclusion. I have nothing useful to add but to state that I agree with the decision that this appeal be allowed for being meritorious. I also abide by the consequential orders made in the lead judgment including that of costs.
Appearances
M. I. IGBOKWE, SAN with
A. OLADIGBOLU Esq.;
F. INALEGWU Esq.,
K. K. OKWUJIAKO Esq.,
M. AJAYI Esq., and
C. NDUBUISI Esq.,For Appellant
AND
FUNKE AGBOR (MRS.) with C. T. UBA (MISS)For Respondent
