BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED v. THE ATTORNEY GENERAL OF LAGOS STATE & ORS (2014)

BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED v. THE ATTORNEY GENERAL OF LAGOS STATE & ORS

(2014)LCN/7334(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2014

CA/L/140/2010

RATIO

EVIDENCE: STANDARD OF PROOF; THE APPLICABLE STANDARD OF PROOF FOR DETERMINING WHETHER THE JURISDICTION OF THE COURT HAS BEEN SUFFICIENTLY ESTABLISHED UNDER ONE OR MORE OF THE PARAGRAPHS OF ORDER 11, R 1(1)
The question in Korner’s case was basically on the applicable standard of proof for determining whether the jurisdiction of the Court has been sufficiently established under one or more of the paragraphs of Order 11, r 1(1). The House of Lords expressed the clear view that the appropriate standard is not the civil burden of proof. The Court has no duty to try the action or express a premature opinion on its merits at that stage. Broadly the court held that on an application for leave to serve notice of a writ of summons out of jurisdiction under R.S.C., Ord. 11, r.1(e), the burden on the plaintiff, under R.S.C., Ord. 11, r.4, was, not to “satisfy” the court that he was right, but to make it sufficiently to appear that the case was a proper one for service out of jurisdiction. The English House of Lords per Lord Simmons – – held at page 337 that:
“…whether the issue is…as to the place where the alleged breach has been committed, the obligation of the plaintiff is, not to “satisfy” the court that he is right, but to make it sufficiently appear that the case is a proper one for service out of the jurisdiction under the order”
Categorically, the court expressed the clear view that the Court is not called upon to try the action or express a premature opinion on its merits. In addition, in Ellinger v. Guinness, Mahon & Co., Frankfurter Bank A.G and Metall Gesellschaft A’G (1939) 4 All E.R 1, the standard credited by the court was that “there was a real issue to be tried and it was properly brought against them within the meaning of R.S.C., Ord.11, r.1(g).” In Chemische FAB. E.T.C v. Badische FAB (1904- 07) All ER Rep – – the House of Lords had acknowledged the futility of Appellant’s contention that there is a generally applicable standard of proof in English law for determining leave to serve outside jurisdiction. The Court per Lord James Hereford puts it in con as follows:
It is impossible to lay down any general rule as to the measure of proof required by Ord. 11, r.4, to justify the summoning of a person resident abroad to come within jurisdiction and here to answer process.
As such, the House of Lords advised that:
…The Court to which the application is made for the service abroad has not to try the question whether a suit can in the result be successfully maintained. Such a determination might involve a consideration of complicated facts, of credibility of witnesses, or of the application of legal principles. But, on the other hand, the court ought, I think, to be convinced by the proof brought before it that the applicant is in a position to present to the tribunals of the country a substantial case for their determination…
The specious analysis by the Appellant in all the English cases cited does not assist its position – – In all those cases, the courts were always required to consider whether there was the commission of a breach of contract or tort within jurisdiction to warrant an order for service under the specific Rules. It is also clear that the relevant standard of review is simply whether there is a serious issue to be tried between parties and not whether the Applicant has a strong argument on the merit or good arguable case. – – The Appellant erroneously contended as follows at paragraph 4.3 of its Brief – –
“The standard of proof required to demonstrate a good arguable case falls between that required to prove a case at trial (i.e. balance of probabilities) and that required to demonstrate a prima facie case. The applicant is commonly described as being under a burden of demonstrating a “strong argument” that one of the enumerated heads of jurisdiction exists” per. AMINA ADAMU AUGIE, J.C.A.

COURT: COURT’S DISCRETION; WHETHER THE GRANT OR REFUSAL OF AN APPLICATION IS PURELY WITH THE PROVINCE OF THE DISCRETIONARY POWERS OF THE TRIAL COURT

The grant or refusal of an application is purely within the province of the discretionary powers of the trial court, and the only requirement, is that such discretion must at all times be exercised not only judicially but also judiciously on sufficient materials – see Udansi V. Odusote (2003) 6 NWLR (Pt. 817) 546. Thus, appellate courts do not usually interfere with the exercise of discretion by a trial court, unless it is NOT exercised according to law or it was exercised in a perverse manner – see JVC Professional Products (UK) Ltd. v. Famuyide (2010) LPELR-4383(CA) where this Court per Adzira Gana Mshelia, JSC, held –
“The law is clear that a discretion properly exercised by a trial Judge or lower Court will not be lightly interfered with an appellate Court even if the appellate Court was of the view that it might hove exercised the discretion differently – – – It is only when a trial Judge or a lower Court exercised discretion upon a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to injustice that on appellate Court will not abdicate its duty to interfere with the exercise of that discretion in order to correct or prevent the injustice”. per. AMINA ADAMU AUGIE, J.C.A.

COURT: FOREIGN DECISION; WHETHER IT IS DANGEROUS TO FOLLOW A FOREIGN DECISION SIMPLY BECAUSE ITS WORDINGS APPROXIMATES TO OUR OWN

COURT: INTERFERENCE; WHETHER AN APPELLANT COURT WILL INTERFERE WITH THE DISCRETION OF THE TRIAL COURT
The law, as I said, is that a discretion properly exercised by a trial Judge, will not be interfered with lightly by this Court, and beyond the semantics and rigmarole sprinkled all over this appeal, the Appellant has not given any reason to justify interfering with the lower Court’s decision, and I will not interfere.In the circumstances, it will not be necessary to look into the other Issue, which is an academic question anyway, and we do not address such questions. per. AMINA ADAMU AUGIE, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

YARGATA NIMPAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED Appellant(s)

AND

1. THE ATTORNEY GENERAL OF LAGOS STATE
2. BRITISH AMERICAN TOBACCO (NIGERIA) LIMITED
3. INTERNATIONAL TOBACCO COMPANY LIMITED
4. BRITISH AMERICAN TOBACCO PLC. Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Appellant is resident in England, and by a Motion Ex Parte dated 13/3/08, the 1st Respondent applied to the High Court of Lagos State for the following –
1. AN ORDER seeking the leave of this Hon. Court to serve the Writ marked concurrent and all other processes filed in this Suit on the 2nd – 5th Defendants.
2. AN ORDER directing such service to be effected by means of a reputable courier service.
3. AN ORDER settling a time certain (sic) of 42 (forty days) sic days from the service of the Writ as the as the time limit within which the 3rd – 5th Defendants should enter an appearance to this suit.

The Application granted on 14/3/08 was brought pursuant to Order 8 rule 1(f), (g) & (h) of the Lagos State High Court (Civil Procedure) Rules, which provides –

“A Judge may allow any originating processes – – to be served outside Nigeria where-
(f) The claim is founded on a tort committed within jurisdiction, OR
(g) An injunction is sought as to anything to be done within jurisdiction, or any nuisance within jurisdiction is sought to be prevented or removed, whether or not damages are sought in respect thereof, OR
(h) Any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within jurisdiction.

Upon being served with the Writ of Summons/Statement of Claim in England, the Appellant, who was the 4th Defendant, entered a conditional appearance “for the purposes only of contesting the jurisdiction of [the] Hon. Court”, and thereafter filed a Notice of Preliminary Objection dated 2/5/2008, wherein it challenged the basis for the lower Court’s order, and prayed for the following –
1. An Order setting aside the Order of this Hon, Court mode on 14th March, 2008 granting the Claimant leave to serve the originating processes on the 4th Defendant/Applicant outside the jurisdiction and by courier service.
2. An Order striking out the name of the 4th Defendant/Applicant from the above referenced suit.
3. An Order striking out the above referenced suit against the 4th Defendant/Applicant.
4. An Order setting aside the service of Writ of Summons and pleadings on the 4th Defendant/Applicant.
The grounds for the said Objection are as follows –

1. The Claimant [1st Respondent] has alleged no tortuous act by the [Appellant] within Lagos State and thus provided no basis for the order of 14th March 2008 granting leave to serve the processes outside jurisdiction under Order 8 Rule 1(f).
2. The 1st Respondent has not identified in its application for leave to serve the Appellant any act or alleged nuisance by the Appellant within jurisdiction which the 1st Respondent seeks to restrain by injunction and thus not provided any basis for the Court’s order granting leave to serve the processes outside jurisdiction under Order 8 Rule 1(g).
3. The 1st Respondent has not demonstrated in its application for leave to serve the Appellant out of jurisdiction how the Appellant is a necessary or proper party to this suit and thus not provided any basis for the court’s order granting leave to serve the processes outside jurisdiction under Order 8 Rule 1(h).

In dismissing the Objection, the learned trial Judge, R.I.B Adebiyi, J., held that –

“The arguments that the Claimants did not make out a good arguable case against them have not committed any tort within jurisdiction, have not committed any act of nuisance to restrain by way of injunction, are challenges – – to the discretion of this Hon. Court. Nowhere – – have the learned SAN argued that this Court exercised its discretion illegally or in such manner as to render its decision a nullity and, therefore, rob the Court of its jurisdiction. It would go against our administration of justice system for Courts to sit on appeal over its own decision – – – simply because parties do not agree with it”.
‘The Claimant claims various orders of mandatory injunction to compel the Defendants to cease marketing and sale of tobocco related products, declaratory claims for damages. The Court finds upon perusal of the Statement of Claim that the 3rd and 4th Defendants are necessary parties – – as their presence will be necessary to enable the Court effectively and completely adjudicate – and settle all the questions in controversy. –
– The Court finds that the suit against the – 4th Defendant is not liable to be struck out”.

Dissatisfied with the decision, the Appellant filed a Notice of Appeal containing four Grounds of Appeal in this Court, and in its Brief of Argument prepared by Mrs. Funke Adekoya (SAN), and Adedapo Tunde-Olowu, Esq., the Appellant formulated 4 Issues for Determination to go with the 4 Grounds of Appeal i.e.
(i) Did the lower Court err in law by failing to apply the good arguable case test when assessing whether the requirements of Order 8 Rules 1(f), (g) and (h) of the High Court of Lagos State (Civil Procedure) Rules 2004 were duly satisfied before granting leave to the 1st Respondent to serve originating processes on the Appellant out of jurisdiction?
(ii) Did the lower Court err in law by holding that the only circumstances in which a court can review its previous orders are those set out in Omotunde V. Omotunde (2001) 10 NWLR (Pt.718) 252?
(iii) Did the lower Court err in law by holding that the Appellant’s argument that the 1st Respondent failed to satisfy Order 8 Rule 1(fl, (g) or (h) of the High Court of Lagos State (Civil Procedure) Rules 2004 was an attack on the manner in which the court exercised its discretion?
(iv) Did the lower Court err in law by holding that the Appellant is a necessary party – –

The 1st Respondent – the Attorney General of Lagos State, however, submitted in his brief prepared by Prof. Yemi Osinbajo (SAN), Babatunde Irukera, Esq., Ikem Isiekwena, Esq., Bashir Ramoni, Esq., and Abimbola Ojenike, Esq., that –
“By whatever characterization, the Appellant’s appeal is a challenge to the standard applied by the Lower Court in exercising its discretion to grant leave to serve the Writ outside jurisdiction. – – It is a challenge to the manner in which the discretion was exercised. Essentially, therefore, the relevant issues for determination in this appeal are-
A. Did the Lower Court properly exercise its discretion when it ordered the service of Originating Processes on the Appellant outside jurisdiction to defend a claim regarding tortuous conducts committed within the Court’s jurisdiction?
B. Has the Appellant established the existence of any circumstances in law that justifies the request of the exercise of the power of the Lower Court to set aside its own Order?”
The 2nd, 3rd and 4th Respondents, who were the 1st, 2nd and 3rd Defendants at the lower Court, did not file briefs, so they are not participating in this appeal.
This appeal, therefore, involves only the Appellant, the 1st Respondent (hereafter referred to as the Respondent), and this Court, which has to decide, and I will adopt the issues formulated by the Respondent in dealing with same. In my view, his issues are more direct and capture the essence of this appeal.

I must warn though that the arguments/submissions from both parties are more jurisprudential than anything else, and to do justice to what they say, I will reproduce large chunks of their arguments as I go along. To start with, the Appellant submitted as follows on the issue of “good arguable case test”-
“In order to demonstrate why the lower Court’s failure to apply the good arguable case test constituted reversible legal error, it behoves the Appellant to first explain the nature of this test and why the lower Court was obliged to apply it in order to rule upon the Appellant’s preliminary objections.
The good arguable case test
The good arguable case test is one of the legal tests that must be applied on every application for leave to serve a Defendant outside the jurisdiction. The leading authority on this subject is the House of Lords’ decision in Seoconsar Far East Ltd v. Bank Markazi (1993) 4 All ER 456 (HL), which reviewed numerous prior authorities including its previous decision in Vitkovice Horni a Hutni Tezirstvo v. Korner [1951] A.C. 869 (HL). – – For a case to be a proper one for service outside the jurisdiction, the applicant must demonstrate that grounds exist for the Court to take personal jurisdiction over the Defendant notwithstanding that it is located overseas and thus not ordinarily subject to the court’s authority. – – -In Korner (supra) and Seaconsar (supra), the House of Lords established and confirmed that the test which is used to determine whether one of these heads of jurisdiction is satisfied is the good arguable case test. The standard of proof required to demonstrate a good arguable case falls between that required to prove a case at trial (i.e. balance of probabilities) and that required to demonstrate a prima facie case. The applicant is commonly described as being under a burden of demonstrating a “strong argument” that one of the enumerated heads of jurisdiction exists. As Lord Goff said in Seaconsar (supra), at 453:
“The applicable standard – – was laid down in Ord. 11, r. 4(2), which required no more than that it should be made sufficiently to appear to the court that the case was a proper one for service out of the jurisdiction, a requirement which was inconsistent with a standard of proof “which in effect amounted to a trial of the action or a premature expression of opinion on its merits:” see per Lord Simonds at p.879 [Vitkovice Horni a Hutni Tezirstvo v. Korner [1951] A.C. 869]. Equally, the expression “prima facie case” was rejected as inappropriate, because a conflict may arise on the material before the Court, which has to reach a conclusion on all the materials then before it. In an endeavor to assist on the degree of sufficiency required by rule 4(2) Lord Simonds (with whom Lord Normand at p.881 agreed) said at p.880, that “the description ‘a good arguable case’ has been suggested [by counsel for the plaintiff] and I do not quarrel with it;” and Lord Radcliffe (with whose statement of principle Lord Tucker, of p.890, agreed) used the expressions “a strong argument,” at pp.883 and 885, and “a strong case for argument,” at p.884. There is no reason to suppose that there is any material difference between these various expressions, from which is derived the “good arguable case” test, which has been applied in innumerable cases since”

Furthermore, that the need to demonstrate a good arguable case under one of the enumerated heads is a part of Nigerian law regarding service outside the jurisdiction as well as of English law, Odu’a Investment Co. Ltd v. Talabi (1997) 10 NWLR (Pt.523) 1, Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria by Dr. Akinola Aguda (1995), The Federal High Court Law and Practice by A. Karibi-Whyte (as he then was) (1984) cited; that in addition to showing that grounds exist to take jurisdiction over a foreign Defendant, an Applicant must separately demonstrate that its claims against him are sufficiently meritorious, and the applicant need only satisfy the test of “serious issue to be tried”, as stated by Lord Goff in Seaconsar (supra) –

“Accordingly, a Judge faced with A question of leave to serve processes out of the jurisdiction under Order 11 will in practice have to consider both (1) whether jurisdiction has been sufficiently established, on the criterion of the good arguable case laid down in Korner’s case, under one of the paragraphs of rule 1(1), and (2) whether there is a serious issue to be tried, so as to enable him to exercise his discretion to grant leave, before he goes on to consider the exercise of that discretion, with particular reference to the issue of forum conveniens.” (Emphasis added by the Appellant)
It further argued as follows at pages 7-8 of its Brief of Argument –
“However, for the avoidance of doubt it should be highlighted that the issue of whether the 1st Respondent demonstrated a serious issue to be tried on the merits of its claims is not in issue on this appeal, the 1st Respondent having failed to satisfy the first hurdle of demonstrating a good arguable case for the heads of jurisdiction relied upon. The Appellant’s preliminary objections in this proceeding relate solely to the issue of whether the 1st Respondent has demonstrated a good arguable case that one of the heads of jurisdiction it relies upon exists (pages 414 – 419 of the Record).
The lower Court’s failure to apply the good arguable case test
Consistent with the well-established principles of law set out above, the lower Court, both when considering whether to grant leave to serve the Appellant outside the jurisdiction and when considering whether to set aside that leave, was obliged to apply the good arguable case test to the question of whether Order 8 Rules 1(f)m (g) and (h) the Rules were satisfied. Thus, the Court was required to satisfy itself that either –
– A good arguable case existed under Order 8 Rule 1(f) that the Appellant had committed a tort or other civil wrong within the lower Court’s territorial jurisdiction
– A good arguable case existed under Order 8 Rule 1(g) for an injunction against the Appellant for anything or nuisance to be done within Lagos State; or
– A good arguable case existed under Order 8 Rule 1(h) that the Appellant is a necessary party to an action properly brought against some other person duly served within the jurisdiction.”
Contrary to this requirement of law, the lower Court failed to apply the good arguable case test and the authorities relied upon by the Appellant. The lower Court dealt with the Appellant’s preliminary objections regarding the lack of the requisite good arguable case at pages 14 – 15 of the Ruling – – concluding: “‘that the requirements of Order 8 Rules 1(f) (g) and (h) of the HCLCPR were duly satisfied and applied by the Court in granting the order of 14/3/2008.” However, whether the materials placed before the lower court were sufficient to justify granting leave to serve outside the jurisdiction, i.e. whether the case was a proper one for such service, was a question which required the application of the good arguable case test to the issue of whether one of the heads of jurisdiction relied upon by the 1st Respondent was satisfied. – – The lower Court failed to apply this test. – – The lower Court committed an error of law which requires that the Ruling be set aside and that the Judgment of this Hon. Court be entered in its place on the issue of whether the case is a proper one for service out of the jurisdiction”.

The Appellant argued under its issue 3 that the lower Court misapprehended its argument that the ex parte Order was liable to be set aside not for an abuse of discretion but because a necessary pre-condition for the exercise thereof had not been satisfied i.e. the requirement that the Respondent demonstrate a good arguable case supporting jurisdiction over it under Order 8 Rule 1(f), (g) or (h) of the Rules; that authorities make clear that although its power to grant leave to serve outside jurisdiction is discretionary, this discretion will not arise unless and until two distinct pre-conditions have been satisfied: (i) one of the heads of jurisdiction under Order 8 Rule 1 of the Rules must be satisfied to the required standard of good arguable case, and (ii) the applicant’s claims must have merit, in that there must be a serious issue to be tried; furthermore that –
“The 1st Respondent was therefore required to demonstrate that Order 8 Rule 1(f), (g) or (h) of the Rules was satisfied to the standard of good arguable case before the lower Court could consider, in its discretion, whether to grant or deny the 1st Respondent’s ex parte Motion for leave to serve the Appellant outside the jurisdiction. Satisfaction of the good arguable case test was thus a necessary legal pre-condition to the lower Court’s exercise of discretion. Accordingly, by challenging the lower Court’s decision to grant leave to serve outside the jurisdiction on the grounds that the good arguable case test was not satisfied, the Appellant was not challenging the manner in which the lower Court exercised its discretion, but was instead challenging whether a necessary legal pre-condition for the exercise of that discretion had been satisfied. Therefore, whether or not the lower Court subsequently exercised its discretion arbitrarily, was irrelevant to the Appellant’s preliminary objection. The lower Court’s holding that its – – Order could only be set aside upon proof of such grounds constituted a reversible legal error (Madukolu V. Nkemdilim (1962) 1 All NLR 587 cited”.

The Respondent countered that the documentary materials presented before the Court sufficiently established that the Appellant and 2nd – 4th Respondents, in manufacturing, marketing/sale of tobacco products to underage persons, damaged and interfered with the public health of the state adversely; that he sufficiently showed that the direct consequences of its wrongful conduct are severe injuries to public health and huge economic loss to the Government in terms of remedial and preventive health care costs; that the expediency of affording the Appellant fair hearing accentuated the said Ex Parte order, thus, the lower Court properly exercised its discretionary competence to grant leave to serve the Appellant outside jurisdiction. He also referred us to the provision of Order 8 Rules 1(f) (g) and (h) of the High Court Rules, and submitted that –
“- – Simply, the Court before exercising its discretion to grant leave must be satisfied that there are sufficient materials which establish the existence of one of the heads of jurisdiction outlined under Order 8(1) of the Court Rules. –The law does not require the 1st Respondent to present a “strong argument on the merit” neither is the Court required to delve into the determination of the merit of the case at the stage of determination of Motion ex parte for leave as the Appellant wrongly suggested.
THE 1ST RESPONDENT MET THE LEGAL STANDARD UNDER THE COURT RULES
The 1st Respondent has demonstrated the applicability of not just one but all the provisions of Order 8 Rules 1(f) (g) and (h) – In Paragraph 8 of – – the Affidavit in support – – it was stated that the Appellant and the 2nd – 4th Respondents since 1953 deceived the public – – about the health effects of smoking. It was also deposed that they have continuously targeted their advertising and marketing strategy to underage consumers in a manner that sustains a lifetime addiction to smoking. – – Also the Claimant alleges a conspiracy to addict young and underage persons – – Exhibit T12, a bundle of documents showing complicity in this conspiracy shows the Appellant is a necessary party to the case. The wide-ranging allegation of conspiracy cannot be determined in the absence of the Appellant. It is admitted that the Appellant was the parent company of NTC from 1951 – 1999, all material times in the determination of the conspiracy allegation in the suit – – Exhibit TL1 – – establishes the nexus of the Appellant, 2nd Respondent and 4th Respondent to the conduct of business in Lagos. The 2nd Respondent is a wholly owned subsidiary of 4th Respondent. The Appellant who is also a principal subsidiary of 4th Respondent was the investing and operational vehicle for NTC before it became the 2nd Respondent. In the Statement of Claim, the 1st Respondent alleges that the Appellant and the 4th Respondent acting by themselves and their principal subsidiaries have designed a corporate strategy directed at exploiting young and underage persons in Lagos, the manipulation of nicotine content of cigarette to addict; and the stifling of the public health in Lagos”.
He further argued that in all instances where judicial discretion is requested, the Applicant is required to present the factual basis that justifies the exercise of the Court’s discretion, citing N.N.S.C. V Sabana Ltd, (1988) 1 NSCC 564; that what is required is proof to such standard that sufficiently satisfies the Court that service out of jurisdiction is proper in the circumstances, and to attain this evidentiary standard, he does not have to prove his case on the balance of probabilities as the civil burden of proof on the balance of probabilities is for the trial on the merit of the case, does not have to present a “strong argument on the merit” to show that his case will succeed, and does not have to prove it beyond reasonable doubt as required in the criminal con; and that he is simply required to demonstrate the existence of jurisdiction or cause of action under one of the sub-paragraphs of Order 8 Rule 1, as he has done in this case. Furthermore, that the court to which the application is presented must refrain from any enquiry as to whether the cause of action can in the final result be successfully maintained as that would involve a consideration of complex facts, examination of witnesses and law; that the Court only has to be convinced that the Applicant has a substantial case for determination and a Defendant outside jurisdiction has a case to answer; that the reference to “good arguable case” standard purportedly applied in English Law is inapposite as the entire scheme of Order 8 Rules 1(f), (g) and (h) is clear and it is impermissible to construe the clear provisions of the rule by reference to the purported English standard; that the Supreme Court has repeatedly frowned at the approach the Appellant seeks to foist on Court, citing U.T.C Ltd v. Pamotei & Ors. (1989) 2 NWLR (Pt.103) 244 and Chigbu V Tonimas Nig Ltd. (2006) 9 NWLR (Pt.984) 189 SC; and that the Lower Court was not bound by the said English “good arguable case” doctrine, in exercising its discretion to grant leave to serve the Appellant.

In maintaining that the Appellant’s conception of “good arguable case” doctrine is “incorrect”, he submitted as follows at pages 12 – 16 of his brief –
“Even if it is conceded that the so called “good arguable case” is applicable – – it is clear that the standard is not such an immutably high evidentiary standard as the Appellant has articulated in this appeal. English Courts do not apply too strict evidentiary standard to “good arguable case” in determining the application for leave to serve out of jurisdiction. The clearest and the most authoritative articulation of how the “arguable case” standard applies is by the House of Lords in Seaconsar Far East Ltd V. Bank Markazi (supra) The question in Seaconsar’s case is: what is the test of a sufficiently strong case on the merits to justify the grant to a Plaintiff of leave to serve proceedings out of jurisdiction under Order 11 R.S.C? – – In that case, Seaconsar applied for leave to serve processes out of jurisdiction under RSC Order 11. The application was made on the basis that the contract was made by or through an agent trading within jurisdiction and that the breach of the contract occurred within jurisdiction. There was no contention between parties that the case fell under Order 11. Bank Markazi only argued that Seaconsar failed to establish a sufficiently strong case on the merit of its claim and Saville J upheld the position. On appeal, the Court of Appeal were unanimous in their position that Saville J erred in applying too strict a standard on the question, Saville J having proceeded on the basis that Seaconsar must establish its case on the balance of probabilities. The majority of the Court of Appeal however held that Seaconsar had to establish a good arguable case on the merits and that Seaconsar failed to do so. On further appeal, the House of Lords per Lord Goff overturned the English court of Appeal and held as follows:
I have come to the conclusion that so far as sub-paragraphs (d) 1 or (ii) of r 1(1) are concerned, the majority of the Court of Appeal erred when they held that Seaconsar had to establish under either of those sub-paragraphs good arguable case on the merits. In my opinion, it was enough for Seaconsar to establish under either of those sub-paragraphs that there was, in respect of one or more of the four points arising on the second presentation, a serious issue to be tried.
As a practical matter therefore, it is enough for an Applicant – – to establish under either of the sub-paragraphs of Order 8 Rule 7 that there is a serious issue to be tied between him and the Appellant. The Appellant erred when it contended that the 1st Respondent had to establish a good arguable on the merits. In particular, the House of Lord held that the test of the strength of the case, which a Plaintiff had to establish for the grant of leave to serve proceedings out of jurisdiction was merely whether the evidence disclosed that there was a serious issue to be tried. The House of Lord further explicitly defined how the a so-called “arguable case” standard applies [thus]-
‘The standard of proof in respect of the cause of action can broadly be stated to be whether, on the affidavit evidence before the court, there is a serious question to be tried”
In the course of his analysis Lord Goff expansively explored the trend of various English decisions on how the test applies beginning from Societe Generale de Paris v, Dreyfus Brothers (1885) 29 Ch.D 239 and the more recent decision of the House of Lords in Korner’s case (supra). In Dreyfus case (supra) – – – Pearson J considered that it was enough that there was “a very serious question to be tried between parties”.
The question in Korner’s case was basically on the applicable standard of proof for determining whether the jurisdiction of the Court has been sufficiently established under one or more of the paragraphs of Order 11, r 1(1). The House of Lords expressed the clear view that the appropriate standard is not the civil burden of proof. The Court has no duty to try the action or express a premature opinion on its merits at that stage. Broadly the court held that on an application for leave to serve notice of a writ of summons out of jurisdiction under R.S.C., Ord. 11, r.1(e), the burden on the plaintiff, under R.S.C., Ord. 11, r.4, was, not to “satisfy” the court that he was right, but to make it sufficiently to appear that the case was a proper one for service out of jurisdiction. The English House of Lords per Lord Simmons – – held at page 337 that:
“…whether the issue is…as to the place where the alleged breach has been committed, the obligation of the plaintiff is, not to “satisfy” the court that he is right, but to make it sufficiently appear that the case is a proper one for service out of the jurisdiction under the order”
Categorically, the court expressed the clear view that the Court is not called upon to try the action or express a premature opinion on its merits. In addition, in Ellinger v. Guinness, Mahon & Co., Frankfurter Bank A.G and Metall Gesellschaft A’G (1939) 4 All E.R 1, the standard credited by the court was that “there was a real issue to be tried and it was properly brought against them within the meaning of R.S.C., Ord.11, r.1(g).” In Chemische FAB. E.T.C v. Badische FAB (1904- 07) All ER Rep – – the House of Lords had acknowledged the futility of Appellant’s contention that there is a generally applicable standard of proof in English law for determining leave to serve outside jurisdiction. The Court per Lord James Hereford puts it in con as follows:
It is impossible to lay down any general rule as to the measure of proof required by Ord. 11, r.4, to justify the summoning of a person resident abroad to come within jurisdiction and here to answer process.
As such, the House of Lords advised that:
…The Court to which the application is made for the service abroad has not to try the question whether a suit can in the result be successfully maintained. Such a determination might involve a consideration of complicated facts, of credibility of witnesses, or of the application of legal principles. But, on the other hand, the court ought, I think, to be convinced by the proof brought before it that the applicant is in a position to present to the tribunals of the country a substantial case for their determination…
The specious analysis by the Appellant in all the English cases cited does not assist its position – – In all those cases, the courts were always required to consider whether there was the commission of a breach of contract or tort within jurisdiction to warrant an order for service under the specific Rules. It is also clear that the relevant standard of review is simply whether there is a serious issue to be tried between parties and not whether the Applicant has a strong argument on the merit or good arguable case. – – The Appellant erroneously contended as follows at paragraph 4.3 of its Brief – –
“The standard of proof required to demonstrate a good arguable case falls between that required to prove a case at trial (i.e. balance of probabilities) and that required to demonstrate a prima facie case. The applicant is commonly described as being under a burden of demonstrating a “strong argument” that one of the enumerated heads of jurisdiction exists”
Appellant’s circumlocutory argument above is flowed and should be discountenanced. The Appellant has argued on one hand that the standard of proof of “good arguable case” is not balance of probabilities. On the other hand, the Appellant contends it is not a prima facie case. The Appellant is stranded between admitting that good arguable case is “proof on the merit of the case” or proof of “prima facie case”. As an escape, it propounds the theory that “good arguable case” is “strong argument” on the merit of the case. Curiously, what amounts to a “strong argument” for the present purpose is undefined. The Court is only left to guess that it has an exactly similar meaning with the phrase “good arguable case” which the Appellant has so much obfuscated, and needlessly so, in this case. Therefore, the Appellant has not suggested any practical and functional approach for the Court to follow. Appellant’s rigmarole between good arguable and strong argument on the merit of the case demonstrates that it does not understand the theory it posits and how practically it could assist the Court in exercising its discretion to grant leave to serve. In the final analysis, it is abundantly clear that this Appeal lacks merit. By all standards, the 1st Respondent demonstrated the sufficiency of his case to justify the grant of the order for service outside jurisdiction. We urge this Court to disallow the appeal in its entirety”.
The Appellant conceded in its Reply Brief that the said Rules provide for instances where service out of jurisdiction would be allowed but argued that where the Claimant has not put forward sufficient information to warrant the grant of same, there must be a test to determine whether the information provided is sufficient to warrant the grant of such an order, and it is trite that where there is a lacuna in our Rules, recourse can be made to English Rules, citing Clement V. Iwuanyanwu (1989) NWLR (Pt. 107) 39 SC and Iwuchukwu V. Nwizu (1994) 7 NWLR (357) 37 SC. It also argued that in the cases cited by the Respondent – UTC V. Pamotei (supra) and Chigbu V. Tonimas Nig Ltd. (supra), the Supreme Court did not put a blanket ban on reliance on English authorities rather what the Court had frowned upon in those decisions was reliance on English authorities when Nigerian law adequately addresses the issue in question, therefore, in line with its decision in Iwuchukwu’s case (supra) and Iwuanyanwu’s case (supra), where there is a lacuna in our Rules or statutes, the Courts in this country can rely on English authorities; and that in the absence of a provision in the Rules for assessing when a case is a proper one for service outside jurisdiction, the lower Court should have applied the ‘good arguable case test’, which is the standard of assessment applied by English Courts, and in response to the Respondent’s take on its conception of the doctrine, it argued that –
“The 1st Respondent misapprehends the ‘good arguable case’ test – particularly its application by the House of Lords in Seaconsar’s case. In that case, Seoconsar Far East Ltd’ had entered into a contract for the supply of artillery to the Iranion Ministry of Defence. Payment was to be made by letter of credit which was issued by Bank Markazi (a bank incorporated in Iran) in favour of Seaconsar. The credit was to be payable upon presentation to Bank Melli (Bank Markazi’s agent in London) of documents evidencing delivery of the artillery to Iran- Seaconsar delivered two shipments of artillery to Iran and after each delivery, presenting what it believed to be the required documents to Bank Metli for payment. Bank Markazi however refused to make payment after both presentations on the grounds that the documents presented did not comply with the requirements of the letter of credit. Seaconsar then initiated an action against Bank Markazi in England and sought leave to serve the bank outside jurisdiction under paragraph (d) or (e) of Order 11 Rule 1(1) of the Rules of the Supreme Court (“the RSC”). Leave was granted and the processes were served on Bank Markazi (which) subsequently brought an application to set aside the order granting leave to serve on the grounds that Seaconsar had not established a sufficiently strong case on the merits of its claim. Bank Markazi never contended that Seaconsar had failed to establish that the case come under one of the heads of jurisdiction in Order 11 Rule 1(1); its only complaint was that Seaconsar had not established a sufficiently strong case on the merits of its claim. The issues the Bank urged the Court to determine were-
1. What is the test of a sufficiently strong case on the merits to justify the grant to a plaintiff of leave to serve processes out of the jurisdiction; and
2. Whether Seaconsar has satisfied this test in relation to the merits of the following –
(a) Whether the documents complied with the requirements of the letter of credit or did not give rise to a right of rejection by Bank Markazi.
(b) If not, whether Bank Melli had the authority of Bank Markazi to reject the documents.
(c) If so, whether Bank Melli did in fact reject the documents.
(d) If so, whether such rejection took place within a reasonable time.
The High Court held that the applicable standard for determining if Seaconsar had a good case on the merits was that of a balance of probability. The court held that Seaconsar had not met this standard with regards to the four issues to be resolved listed above. It therefore set aside the order granting leave. On appeal, the balance of probability was rejected as the applicable standard by the Court of Appeal. The majority of the panel rather held that the applicable standard is the “good arguable case” standard which standard Seaconsar had failed to meet with regards to the four issues for resolution. On further appeal to the House of Lords, it was held per Lord Goff that a Judge who is considering whether to grant leave to serve processes on a defendant outside jurisdiction had to go through two stages. First, the Judge must determine if the plaintiff has established that the case comes under one of the several heads of jurisdiction listed in Order 11 Rule 1(1) of the RSC. Afterwards, the Judge must then decide if the claim discloses a cause of action worthy of consideration by the Court. We refer this court to page 465 paragraph J to 466 paragraphs A to B of Seaconsar (supra) where Lord Goff had stated that:
“- – I am of the opinion that what has to be sufficiently shown by the Plaintiff for the purpose of establishing jurisdiction is, in the case of for example, sub-para (i) not merely that, if the contract existed, it was made within jurisdiction, but that (1) there was a contract and (2) such contract was made within the jurisdiction. Likewise under sub-paras (ii), (iii) and (iv), the existence of the relevant contract has been sufficiently proved. But once that is done, there arises a separate question as to the merits of the Plaintiff’s claim relative to that contract”. He also held at page 467 paras G to H –
“- – A Judge faced with the question of leave to serve processes out of the jurisdiction under Order 11 will in practice have to consider both (1) whether jurisdiction has been sufficiently established on the criterion of the good arguable case laid down in Korner’s case under one of the paragraphs of r 1(1), and (2) whether there is a serious issue to be tried so as to enable him exercise his discretion to grant leave…”

Lord Goff made it clear that two different standards apply to the two stages of consideration. According to him, the standard applicable when considering whether jurisdiction of the Court has been established under one of the heads of jurisdiction in RSC 11 Rule 1(1), is the good arguable case test as was laid down in Vitkovice Horni a Hutni Tezirstvo v, Korner (1951) 2 All ER 334 (Korner’s case). However, a different standard would apply when considering whether the plaintiff has a cause of action worthy of consideration. Here, the applicable test would be whether the plaintiff has shown that there is a serious issue to be tried. We refer this Honourable Court to page 463 paragraph G of Seaconsar (supra) where Lord Goff held that –
“If this approach is correct, the standard of proof in respect of the cause of action can broadly be stated to be whether, on the affidavit evidence before the court there is a serious question to be tried.” (Emphasis added by the Appellant.)

The issue before the Court in Seaconsar (supra) in the passage quoted above (in paragraph 12 of Appellants Reply) and in the passage quoted in paragraph 35 of the 1st Respondent’s brief of argument was not whether jurisdiction has been established under any of the heads of jurisdiction in RSC 11(1)1 (the first stage of consideration). What the Court was asked to determine was whether Seaconsar had established a sufficiently strong case on the merits of its claim (the second stage for consideration). Since the issue for determination in Seaconsar (supra) was the applicable test in deciding if Seaconsar had a cause of action worthy of the Court’s consideration, it is not surprising that the Lord Goff held that the applicable test would be ‘a serious issue to be tried’ and not the ‘the good arguable case’ test. We refer this Court to page 467 paragraph J to 468 paragraph A to B of the report where Lord Goff held that –
“…I have come to the conclusion that so far as sub-paras (d)(i) or (ii) of r 1(1) are concerned, the majority of the Court of Appeal erred when they held that Seaconsar had to establish under either of those sub-paragraphs a good arguable case on the merits. In my opinion, it was enough for Seaconsar to establish under either of those sub-paragraphs that there was, in respect of one or more of the four points arising on the second presentation a serious issue to be tried.” (Emphasis added by it.)

The 1st Respondent – has erroneously assumed that the above – – decision of Lord Goff in Seaconsar (supra) is relevant to this appeal. – – It is not. The above quoted passage is clearly on the issue of whether Seaconsar had established that he had a good cause of action. – We agree that the appropriate test would be the test of a serious issue to be tried – – (Our) contention – – is that the 1st Respondent had failed to establish (while applying for leave to serve out of jurisdiction) that his claim fails under one of the heads of jurisdiction listed in Order 8 Rule 1 of the Rules (which is in pari material with RSC 11(1)(1). We respectfully submit in line with the decision in Seaconsar (supra) and Korner (supra) that the applicable test in making this consideration is the good arguable case test. We submit further that the Appellant did not ask the lower Court to determine if the 1st Respondent had established that it had a good cause of action. Having failed to pass the first hurdle of establishing whether the claim fell under one of the heads of jurisdiction listed in Order 8 Rule 1 of the Rules, it was not necessary to raise the issue of whether the 1st Respondent had failed to establish that he had a good cause of action”.

It further submitted that the Respondent attempted to present us with a lopsided view of what was decided by the House of Lords in Korner (supra); that in as much as it agreed with him that the House of Lords in that case had expressed the view that the appropriate standard is not the civil burden of proof, the court did not stop at stating what the standard was not, but went ahead to prescribe what the standard should be. He referred us to what Lord Simonds said in the case of Korner (supra), as follows –
“When the learned trial Judge said that he was not “satisfied” that there had been a breach within the jurisdiction, he can only hove meant that the Respondent had not proved that fact beyond reasonable doubt. That however is something quite different from what the rule impose – – It is, no doubt, difficult to say precisely what test must be passed for an applicant to make it sufficiently appear that the case is a proper one. I do not wholly like the expression ‘a prima facie case’, for where leave to serve has been given ex parte under RSC. Ord. 11, and application is then made under RSC., Ord. 12 r. to set the proceedings aside, a conflict may arise in which the question is not so much whether o prima facie case has been made out as whether, on all the materials then before him, the judge is of the opinion that the case…is a proper one to be heard in our Courts. The description ‘a good arguable case’ has been suggested and I do not quarrel with it.” (Emphasis added by the Appellant.)
And what Lord Radcliff (another judge on the panel) also said in the same case, thus –
“Further, a case does not sufficiently appear to be a proper case for the purposes of this order, unless on consideration of all admissible material there remains a strong argument for the opinion that the qualifying conditions are indeed satisfied.” I prefer, however, the test of a strong case for argument, which I have suggested.”
It is its contention that the ‘good arguable case’, ‘a strong argument’ and ‘a strong case for argument’ all mean one and the same thing, which it says is based on the decision of Lord Goff in Seaconsar (supra),while analyzing the decision in Korner (supra) thus –
“Lord Simonds… said ‘the description “a good arguable case” has been suggested by [counsel for the plaintiff and I do not quarrel with it…, And Lord Rodcliffe … used the description o strong argument (and ‘a strong case for argument’…There is no reason to suppose that there is any material difference between the various expressions, from which is derived the good arguable case’ test which has been applied in innumerable cases since.”
Furthermore, that the decisions in the English cased cited by the Respondent in its brief have no bearing on its contention in its preliminary objection filed in the lower Court because what the Courts in the said cases of Ellinger (supra), Chemische (supra) and Societe Generale (supra) were called upon to determine is whether the plaintiffs in the cases had shown that they had a cause of action worthy of the Court’s consideration.

It submitted that this is a separate issue from its contention that the Respondent did not establish that his claim comes under one of the heads of jurisdiction listed in the said Order 8 Rules 1(f), (g) and (h); that although the test for determining if a Claimant has a good cause of action is ‘whether there is a real issue to be tried’ or ‘whether there is ‘a substantial case’ for the court’s determination, the test for determining if the claim falls under one of the heads of jurisdiction is the ‘good arguable case’ test; and that the Respondent failed to establish a good arguable case that his claim falls under Order 8 Rules 1(f), (g) and (h) of the Rules. We were urged to discountenance his arguments.

I have laid out the arguments of both parties in some detail but that is not to say that I will follow them on a wild goose chase instigated by the Appellant, and the reason is simply this – the Appellant canvassed the same arguments and received an answer from the Ibadan Division of this court. The Respondent referred us to the decision of that Division of this Court in its Judgment delivered on 23/4/2013. The only difference between the two appeals filed by the same British American Tobacco (Investment) Ltd. is that in this Appeal, the 1st Respondent is the Attorney General of Lagos State while in Appeal No. CA/I/251/2010, the 1st Respondent is the Attorney General of Ogun State. In dismissing the said appeal, my learned brother, Dongban-Mensem, JCA, held thus –
“The complaint of the Appellant by way of Preliminary Objection to the effect that a necessary pre-condition for the exercise of discretion has not been satisfied is a challenge to the manner in which discretion is exercised. Order 12 rule 15 [Ogun State High Court (Civil Procedure) Rules] having clearly reposed discretion with the Court, it is not incumbent on the Judge to state that it applied the good arguable case test to the set of facts presented by the 1st Respondent in support of its application. Nor was it mandatory for the learned trial Judge to rely on the provisions of Order 12 rule 13(6) & (7), I find the argument on the good arguable case as over-flogged and nagging. It is not the requirement of order 12 rule 15 that any of the heads of jurisdiction under Order 12 rule 13 of the 1987 Rules must be satisfied and the learned trial Judge adopted the correct approach in addressing the issues. Two distinguishing features of the Seaconsar case and the one under consideration are-
(1) Seaconsar’s case is not binding on this Court; it is merely of persuasive authority. The facts of Seoconsar’s case are clearly different from those of this appeal. It follows therefore that undue reliance on the Seaconsar’s case avail the Appellant little.
(2) The Nigerian Judge is not bound to resort to the English Rule of Court unless there is no such provision in our Law/Rule of Court”.

I do not know what I can say that will make any difference or lead to a different decision from that of the Ibadan Division as it relates to this appeal filed by the Appellant in the same 2010 that it filed the Appeal at Ibadan, where it canvassed the same arguments. Yes, the decision of that Division is only of persuasive authority but it is a powerful one.

That said, we must still resolve this appeal on its merits, and to set the ball rolling, we must figure out what this appeal is all about and what the Appellant is asking for.

We know that the Appellant is resident in England; it is accepted that it was served with the Respondent’s Writ of Summons and Statement of Claim pursuant to an Order Ex-Parte dated 14/3/2008, and obtained by the Respondent to serve it outside Nigeria; in line with Order 8 rule 1 of the High Court (Civil Procedure) Rules, which says a Judge of Lagos State MAY allow processes to be served outside Nigeria where –
– The claim is founded on a tort committed within jurisdiction – rule 1(f);
– An injunction is sought as to anything to be done within jurisdiction, or any nuisance within jurisdiction is sought to be prevented or removed, whether or not damages are sought in respect thereof – rule 1(g); or
– Any person out of jurisdiction is a necessary party to an action brought against another person duly served within jurisdiction – rule 1(h).

As it is, this appeal is predicated on the Appellant’s Notice of Preliminary Objection, wherein it prayed the lower Court to set aside its Order of 14/3/2008 granting leave to the Respondent to serve the processes on it outside the jurisdiction because –
– The Respondent alleged no tortuous act on its port within Lagos State and thus provided no basis for the said Order under Order 8 rule 1(f).
– The Respondent did not identify, in its Application for the said Order, any act or alleged nuisance, which he seeks to restrain by injunction, and thus provided no basis for the Court’s Order under Order 8 rule 1(g).
– The Respondent did not demonstrate in his Application for leave to serve outside jurisdiction how it is a necessary or proper party to this suit and thus provided no basis for the Court’s Order under Order 8 rule 1(h).
The lower Court gave two reasons for refusing to set aside the said Order –
– That it would amount to sitting on appeal over its own decision, and
– That the requirements of Order 8 rules 1(f), (g) and (h) of the HCLCPR were duly satisfied and applied by the Court in granting the said Order.
With reference to the issue of “good arguable case”, the lower Court stated –
“Both the 3rd and 4th Defendants [Appellant herein] have argued that the Claimant did not disclose a good-arguable case against them and failed to disclose material facts in seeking the court’s discretion – – – The summary of the submissions of the learned SAN – – is that the court exercised its discretion wrongly and perhaps more appositely put, based on no materials whatsoever. The arguments that the Claimant did not make out a good arguable case against them, have not committed any tort within jurisdiction, have not committed any act of nuisance to restrain by way of injunction, are challenges – – to the discretion of this Court”.

The Appellant contends that by challenging its decision on the grounds that the good arguable case test was not satisfied, it was not challenging the manner in which the lower court exercised its discretion but was challenging whether a vital legal pre-condition for the exercise of that discretion has been satisfied, therefore, whether or not it subsequently exercised its discretion arbitrarily, was irrelevant to its Preliminary Objection. In its words at page 11 of its brief-
“The Preliminary Objection – – relate solely to the issue of whether the Respondent has demonstrated a good arguable case that one of the heads of jurisdiction it relies upon exists, The lower court misapprehended [its] argument that the ex parte Order was liable to be set aside not for an abuse of discretion but because a necessary pre-condition for the exercise of that discretion had not been satisfied – – the requirement that the Respondent demonstrate a good arguable case supporting jurisdiction over [it] under order 8 Rule 1(f), (g) or (h) of the Rules”.

Of course, the Respondent did not agree with its contention, and I do not also – challenging the standard used by a Court in arriving at a decision whether to grant or refuse an application, particularly where the Rules of Court allow it to make that choice, amounts to questioning its discretion, and that is what it is. We can see that order 8 rule 1 of the High court Rules uses the word – “MAY”, which is usually employed to imply permissive, optional or discretional, and not mandatory action or conduct – see Black’s Law Dictionary. 6th Ed. and Mokelu V. Fed. Com. Works & Housing (1976) NSCC 187, where Madarikan, JSC, held-
“‘May’ is an enabling or permissive word. In that sense, it imposes or gives a discretionary or enabling power. – – The principle to be drawn from decided cases on the construction of the word “may’ appear to be quite clear. The word “may” gives a power, and the important question is in what cases, where a Judge has a power given by the word “may”, it becomes his duty to exercise it”.

In this case, Order 8 rule 1 of the said High Court (Civil Procedure) Rules, gives the lower Court a discretionary power to allow processes to be served outside Nigeria as long as the claim is based on a tort committed within Lagos State, or an injunction is sought as to anything to be done within its jurisdiction or any nuisance is sought to be prevented or removed, or when any person out of its jurisdiction is a necessary party to an action properly brought against some other person duly served within jurisdiction. There is nowhere in the Rules, where the standard to be applied in exercising its discretion to grant or refuse an application to serve processes outside Nigeria, is mentioned or alluded to.

In this case, although the Appellant hinged its Application to set aside the said Order on the ground that there was no basis for the lower Court to grant same under Order 8 rules 1(f), (g) & (h), it did not expatiate on that or point out how and why it erred in that regard; rather it focused its argument on its contention that it was obliged to but had failed to apply the “good arguable case test”.

This is a test apparently applied in England but the Appellant appears to have lost sight of the fact that even though it is resident in England, the Order sought to be set aside was for leave to serve it outside Nigeria so it can appear before a court in Nigeria to answer to the Respondent’s claims or defend itself. The Appellant kept harping on the word -“obliged”; its first sentence was –
“In order to demonstrate why the lower Court’s failure to apply the good arguable case test constituted reversible legal error, it behoves the Appellant to first explain the nature of this test and why the lower Court was obliged to apply it in order to rule upon the Appellant’s preliminary objections”.

It makes no sense to me; why is the lower Court obliged to apply the said test before it considers whether to exercise its discretion to grant or refuse the said Application for leave to serve the said processes on the Appellant in England? Is it because it resides there? Is it because we are still tied to the apron strings of the Empire from whom we first got our laws or have we no laws of our own? The word “obliged” is a very strong word indeed and a very wrong word to use as the Supreme Court has said it times without number that foreign decisions should at best be of persuasive authority, which means we are not bound by it – See Okon v. State (1988) 1 NSCC 156, where Nnaemeka-Agu, JSC, observed –
– – It is dangerous to follow a foreign decision simply because its wordings approximates to our own. Nigerian courts are obliged to give a Nigerian legislation its natural and ordinary meaning, taking into account our own sociological circumstances as well as other factors, which form the background of our own local legislation in question. A “copy-cat” transposition of an English decision may in some circumstances turn out to be inimical to justice in our Courts’.
See also Chigbu V Tonimas Nig Ltd. (supra) where Niki Tobi, JSC, said that –
“Where a local statute is available and applies to a particular local situation, Courts of law have no jurisdiction to go all the way to England to search for an English statute. This is because by the local statute, the law makers intend it to apply in the locality and not any English statute which is foreign and inapplicable. Much as I appreciate the colonial lie between England and Nigeria, it will seriously hamper and compromise our sovereignty if we continue to go on a borrowing ‘spree’, if I may so unguardedly call it, to England for the laws of that country without any justifiable reason. Nigeria is Nigeria and England is England. Statutes of England cannot apply to Nigeria as a matter of course – – “.
The Appellant has argued, citing Iwuchukwu V. Nwizu (supro) and Clement V. Iwuanyanwu (supra) that where there is a lacuna in our Rules or Statutes, the Courts in this country can rely on English authorities. Is there any lacuna here? There is no lacuna whatsoever; the provisions of Order 8 rule 1(f), (g) & (h) of the Lagos State High Court Rules are specific and, should I say, self-contained, and it is well settled that where there are provisions in the local Rules of Court, resort cannot be made to English Rules- see U.T.C. Ltd. V. Pamotei (supra).
The law, as I said, is that a discretion properly exercised by a trial Judge, will not be interfered with lightly by this Court, and beyond the semantics and rigmarole sprinkled all over this appeal, the Appellant has not given any reason to justify interfering with the lower Court’s decision, and I will not interfere.In the circumstances, it will not be necessary to look into the other Issue, which is an academic question anyway, and we do not address such questions.
The appeal lacks merit; it fails and is dismissed. The Appellant is hereby ordered to submit to the jurisdiction of the lower Court. No order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned Brother AMINA ADAMU AUGIE JCA.
The judgment has sufficiently addressed the issues distilled for consideration. I only wish to reiterate the issue of discretion. The concept of discretion in legal usage implies the power to make a choice between alternative options. Where the exercise of discretion is vested as in this case, it follows that there is no absolute answer and the court decides. The rules of the trial court allows the judge to exercise discretion and once exercised judicially and judiciously, it cannot be questioned. There is also no static standard of how a judge should exercise discretion, therefore an appellate court would not disturb the exercise of discretion except if it can be seen on the face of the record that the discretion was not judicially and judiciously exercised, see PROF DUPE OLATUBOSUN V TEXACO NIGERIA PLC & ANOR (2012) 5 SC (PT 1) 88.

Furthermore, the judgment of this court in Appeal No. CA/I/251/2010 BRITISH AMERICAN TOBACCO (INVESTMENT) LTD V THE ATTORNEY GENERAL OF OGUN STATE & ANOR delivered on 23rd day of April, 2013 distinguished the Seaconsar’s case and the one at hand which is also in every material respect the same as the one decided by Ibadan Division of this court; judges in this country are not bound to apply English decisions which are only of persuasive authority. The trial judge in this case exercised discretion and there is nothing perverse to warrant interference.
I also dismiss the appeal and abide by the orders made in the lead judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity of reading the draft judgment just delivered by my learned Brother AMINA ADAMU AUGIE JCA.

He has sufficiently addressed the nagging issue of whether the lower court has a discretion with the use of ‘MAY’ in Order 8 rule 1(f) (g) & (h) of the Lagos State High Court (Civil Procedure) Rules which has been used in the directory sense and not mandatory it has clearly allowed for the discretion of the judge in this case judicially and judiciously exercised which makes it proper.

Its trite that an appellate court will not ordinary interfere with the exercise of discretion by a trial court, unless it can be shown that such exercise was either made arbitrarily (not based upon any principle of law) or not in accordance with terms of justice. See DANGOTE GEN ILE PRODUCTS LTD & ORS V. HASCON ASSOCIATES NIG. LTD & ANOR 2013 LPELR 20665 (SC) ENEKE V ENEKE 1964 1 ALL NLR 102
In ABOSEDEHYDE LABORATORIES PLC. V. UNION MERCHANT BANK LTD & ANOR (2013) 54 NSCQR 112 AT 155 PAR E – G) PETER-ODILI JSC Held quoting MOHAMMED JSC in MV LUPEX V. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD 2003 15 NWLR PT 844 469 AT 488 THUS;
“Judges and courts exercise their discretion in accordance with rules of court and justice and not in according to private opinion. An example of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances’ of the particular case, guided by the spirit and the principles of law”.
The only principle which the appellant contend has not been followed is an imported provision in the SEACONSAR FAR EAST LTD v BANK MARKAZI (SUPRA) case which is of persuasive authority in Nigerian courts, the Lagos State High Court Rules of court is unambiguous and has adequately covered the filed.
At the risk of repetition, the dictum of NNAEMEKA-AGU JSC, in UTC V. PAMOTEI & ORS (SUPRA) quoted copiously in the lead judgment is apt in this situation.
I too dismiss the Appeal and abide by the order as to cost.

Appearances

A. Tunde-Olowu, Esq., with Magnus Amudi, Esq., and Miss Demilade ElemoFor Appellant

AND

Babatunde Irukera, Esq., with Adegoke Adedoyin, Esq.,
Miss Oluwatobi Akintujoye and Ogochukwu Odum, Esq. for the 1st Respondent
Peters Agboola, Esq., with F. C. Anaje, Esq., for the 2nd Respondent
Oluwole Awe, Esq., for the 3rd Respondent
Fidelis Adewale, Esq., for the 4th RespondentFor Respondent

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BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED v. THE ATTORNEY GENERAL OF LAGOS STATE & ORS (2014)

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