ALHAJI NUHU MUHAMMED V. ALHAJI ADAMU AL-HASSAN AJINGI
(2013)LCN/5906(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of February, 2013
CA/K/5/2006
RATIO
“The provisions of the Rules of Court and of the Sheriffs and Civil Process Act on the subject do not conflict and neither do they supersede each other, as erroneously thought by the learned trial Judge. Rather, they are complimentary and a party seeking to commence an action against a person outside jurisdiction must comply with both of them. The Courts recognize this difference between issuance of a writ of summons and its service and have held that the issuance of a writ of summons may be valid while its service may be defective and vice versa – Nwabueze V. Okoye supra, Adegoke Motors Ltd. V. Adesanya supra, Owners of the MV “Arabella” V. Nigeria Agricultural Insurance Corp. (2008) 11 NWLR (pt 1097) 182, United Bank for Africa Plc V. Ademola (2009) 8 NWLR (Pt. 1142) 113, Agip (Nig) Ltd v. Agip Petroli International & ors supra and Touton SA V. Grimaldi Compagnia Di Naviga Zioni SPA (2011) 4 NWLR (pt 1236) 1. The leave required to issue a writ of summons for service out of jurisdiction is not the same as the leave required to serve a writ of summons out of jurisdiction. An intending plaintiff against a defendant outside jurisdiction must apply for both of them.” Per ABIRU, J.C.A.
“Each state in Nigeria possesses its own rules prescribing the jurisdiction of its High Court in conflict of laws situations. These rules are contained in the High Court Laws of each State and, with the exception of the states making up the former Eastern Region, the rules are based substantially on the English Law. The jurisdiction of Kano State High Court in conflict of law situations is covered by the provision of Section 13 of the High Court Law of Kano State and it states that: “The High Court, shall in addition to any other jurisdiction conferred by the Constitution of the Federation or by this or any other enactment, possess and exercise within the limits mentioned in and subject to the provisions of the Constitution of the Federation and this enactment, all the jurisdiction, powers and authorities which are vested in or capable of being exercised by the High Court of Justice in England.” A verbatim provision contained in section 10 of High Court Law Lagos State has been interpreted by the Court of Appeal to mean that the High Court of Lagos State has the same power of jurisdiction in matters affecting conflict of laws as the Court of England – Barsoum V. Clemessy International & anor (1999) 12 NWLR (Pt 632) 516 at 526 and Zabusky v. Israeli Aircraft Industries (2008) 2 NWLR (pt 1070) 109. Following these decisions, it means that by section 13 of the High Court Law of Kano State, the High Court of Kano State has the same power of jurisdiction in matters affecting conflict of laws as the Court of England. This point was affirmed by Wheeler J in Barzasi V. B. Visioni Limited supra. The English Court exercises jurisdiction, as a matter of right, in an action in personam under the English conflict of law rules, irrespective of where the cause of action arose, in three situations: (a) Presence: Once the defendant sets foot in England and is served with the writ of summons, the English Court will exercise jurisdiction over the defendant and it makes no difference that the defendant was on a transient visit to England when he was served with the writ of summons and/or that the defendant thereafter departed from England – Colt Industries Ltd V. Sarlie (1966) 1 All ER 673, Razelos V. Razelos (1970) 1 All ER 386 and Maharanee of Baroda V. Wilderstein (1972) 2 All ER 689. (b) Submission: Where a defendant outside jurisdiction accepts service through a Solicitor or an agent within jurisdiction and pleads to the merit of the case, he is deemed to have conferred jurisdiction on the English Court – Sphere Drake Insurance Plc V. Gunes Sikerta (1988) 1 Lloyds Rep 139 and The Messianiki Tolini (1984) 1 Lloyds Rep 266. (c) Assumed Jurisdiction: Where a defendant is outside jurisdiction and he is duly served outside jurisdiction with a writ of summons issued with the leave of the English Court obtained under the Order 11 of the Rules of the Supreme Court of England, the English Court will assume jurisdiction over the defendant. It is important to emphasize that under these rules of conflict of laws, the location of the place where the cause of action arose plays no part in determining jurisdiction of a court to hear the matter – Olayiwola Benson V. Joseph Oladipupo Ashiru (1967) NMLR 363, Nigerian Ports Authority V. Panalpina World Transport (1974) 1 NMLR 82 and Zabusky V. Israeli Aircraft Industries supra. The only exception is in respect of land matters: it is the court of the lex situs, i.e. the court of the place of location of the land, that possesses jurisdiction in land matters, and no other court – Lanlehin V. Rufai (1959) 1 FSC 184 and Societe General Bank (Nig) Ltd V. Festus Olabode Aina (1999) 9 NWLR (Pt 619) 414.” Per ABIRU, J.C.A.
“This question was considered by the full panel of seven Justices of the Supreme Court in the case of Odu’a Investment Co. Ltd V. Talabi (1997) 10 NWLR (pt 523) 1. The Supreme Court considered the provisions of Order 2 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 1972, which is in pari materia with the provisions of Order 5 rules 6 and, 14 of the High Court of Kano State (Civil Procedure) Rules, 1988, and the provisions sections 97 and 99 of the Sheriffs and Civil Process Act. The Supreme Court also considered its seemingly conflicting earlier decisions on the issue in Skenconsult (Nig) Ltd V. Ukey (1981) 1 SC 6, Ezomo V. Oyakhire (1985) 1 NWLR (pt 2) 195, Nwabweze v. Okoye (1988) 4 NWLR (Pt 91) 664, Adegoke Motors Ltd V. Adesanya (1989) 3 NWLR (pt 109) 250 and NEPA V. Onah (1997) 1 NWLR (pt 484) 680. The Supreme Court reconciled its said earlier decisions and the decision of the court by a majority of six to one was read by Ogundare, JSC. The learned Justice stated at page 52 C-F thus: “From all I have been saying, my answer to the question set out in this judgment, therefore, is that non-compliance with section 97 and/or section 99 of the Sheriffs and Civil process Act and the rule of court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled ex debitio justitiae to have same set aside as was done in Skenconsult, Nwabueze and NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused. I need point out, for the avoidance of doubt, that the power to set aside is without prejudice to the power of the Court to allow, in appropriate cases, such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit. Turning to the case on hand, the appellant from the various steps it took in the proceeding, after service on it of the writ of summons cannot now be heard to complain of defects in the issue and service of the writ. It is too late in the day to do so. He has waived his right to complain. The trial must go on. Technicalities are a blot upon the administration of the law and the Courts have moved a long way from allowing them to make an ass of it and dent the image of justice.” In other words, the position taken by the full panel of the Supreme Court was that non-compliance with the provisions of Order 5 Rules 6 and 14 of the High Court of Kano State (Civil Procedure) Rules only renders the writ voidable, not void, and that such a writ will be voided at the instance of a defendant who acts timeously and before further steps are taken in the matter.” Per ABIRU, J.C.A.
“It is elementary that where the provisions of a statute are clear and unambiguous, effect should be given to them as such unless it would be absurd to do so having regard, to the nature and circumstances of the case. Therefore, a court of law is without power to import into the meaning of a word, clause or section of a statute something that it does nor say. Indeed, it is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express – Awolowo V. Shagari (1979) 6-9 SC 51, Rabiu V. State (1980) 8-11 SC 130, Bronik Motors Ltd V. Wema Bank Ltd (1983) 1 SCNLR 296 and, Federal Republic of Nigeria V. Osahon (2006) 5 NWLR (pt 973) 361.” Per ABIRU, J.C.A.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
Alhaji Nuhu Muhammed Appellant(s)
AND
Alhaji Adamu Al-Hassan Ajingi Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Kano State High Court in suit No K/759/2003 delivered by Honorable Justice B. S. Adamu on the 30th of June, 2004. The Respondent, as plaintiff, initiated steps to commence the said Suit No. K/759/2003 against the Appellant, as defendant, before the lower Court by a motion Ex-parte dated the 22nd day of September, 2003 praying for the following orders:
i. An order of this Honorable Court for leave to issue a Writ of Summons against the Defendant as “Undefended Suit” and mark the Writ of Summons as “Undefended Suit”.
ii. An order of this Honorable Court placing this suit under the “Undefended list”
iii. An order of this Honorable Court for leave to serve the Defendant with the Writ of Summons and all other processes in this suit in Kaduna, Kaduna State outside the jurisdiction of this Honorable Court.
iv. And for such further order(s) as this Honorable Court may deem fit to make in the circumstances of this suit.
The motion ex parte was heard by the lower Court on the 2nd of October 2003 and it was ordered as follows:
i. That the applicant is granted leave to issue a Writ of Summons against the Defendant as UNDEFENDED suit and mark the Writ of Summons as UNDEFENDED suit.
ii. That the suit shall be placed under the undefended List and be fixed for hearing.
iii. That the applicant is granted leave to serve the defendant with the Writ of Summons and all other court processes in this suit at Kaduna, Kaduna State which is outside the jurisdiction of this court.
iv. That the defendant shall be given 30 days after service to appear and defend the action.
v. That the case is adjourned to 12th November, 2003 for hearing of the suit on the undefended list.
The Writ of Summons was thereafter issued as Undefended Suit and it was placed under the Undefended List. The claims of the Respondent, as plaintiff, against the Appellant, as defendant, as made out on the Writ of Summons were:
i. The sum of N931, 281.05k (Nine Hundred and Thirty One Thousand, Two Hundred and Eighty One Naira Five Kobo) being owed the Plaintiff by the Defendant as a result of transaction in petroleum product covering the year 2001-2002.
ii. 10% court interest from date of judgment till final liquidation of the whole sum.
iii. Cost of this action.
The Writ of Summons with accompanying processes was served on the Appellant in Kaduna. The Appellant did not enter a defence in the suit and on the 1st of April, 2004, the lower Court entered judgment in favour of the Respondent. Counsel to the Appellant thereafter filed a motion on notice dated the 16th of April, 2004 praying for an order setting aside the judgment as well as for an order setting aside the Writ of Summons and all other processes issued in the suit and served on the Appellant and for an order prohibiting the execution of the judgment. In a considered Ruling delivered on the 30th of June 2004, the lower Court dismissed the application of the Appellant.
The Appellant was dissatisfied with the decision and he filed a Notice of Appeal dated the 1st of July, 2004 on the 13th of July, 2004 against the ruling. The Notice of Appeal consisted of four Grounds of Appeal. In compliance with the Rules of this Court, the Appellant filed a brief of arguments dated the 28th of June, 2007 consisting of eight pages. The Appellant’s brief of argument was deemed properly filed on the 20th of November, 2007. The Respondents filed a brief of arguments consisting of seven pages and dated the 17th of December, 2007 in response. At the hearing of the appeal on the 17th of January, 2013, Counsel to the Appellant and Counsel to the Respondent relied on and adopted their respective briefs of arguments.
In his brief of arguments, Counsel to the Appellant distilled two issues for determination from the four Grounds of Appeal and these were:
i. Whether the leave sought by virtue of Order 23 rule 1 of the Kano State High Court Civil Procedure Rules Kano State 1988 to issue and place the writ under the undefended list as couched by the Respondent in her ex-parte application before the Court dated the 22nd of December, 2003 dispensed with the leave required by Order 5 Rules 6 & 14 of the rule for issuance of writ out of jurisdiction.
ii. Whether the Kano State Judicial Division is the proper jurisdiction to hear and determine the subject matter which is debt arising from a contract or breach of same.
The Counsel to the Respondent also formulated two issues for determination and they were:
i. Whether the leave sought by the Respondent and granted by the trial Court to issue, mark, place the writ of summons under the undefended list and serve same on the Defendant in Kaduna outside the Jurisdiction of the trial Court under Order 23 Rule 1, of the High Court of Kano State (Civil procedure) Rules, 1988 is sufficient notwithstanding the provisions of Order 5 rules 6 and 14 of the same Rules of Court.
ii. Whether the Kano State High Court of Justice possesses the requisite jurisdiction to hear and determine the Respondent’s suit vis-a-vis the subject matter of the claim.
It is obvious, from the reading of the issues for determination formulated by the parties, that they are saying the same thing but in different words. This Court must say that while it agrees with the second issue for determination as formulated by the parties, the first issue for determination as formulated did not catch the essence of the question submitted to this Court for adjudication in this appeal on the issue. This Court will thus re-formulate the issue thus:
Whether the Respondent seeking to issue a writ under the undefended list for service outside jurisdiction was obligated to also comply with the provisions of Order 5 rules 6 and 14 of the Kano State High Court Civil Procedure Rules of Kano State 1988 in addition to seeking leave to issue and place the writ under the undefended list under of Order 23 rule 1 of the Rules and, and if so, what is the effect of such non-compliance, if any.
This appeal will be resolved on the first issue for determination as re-formulated by the Court and on the second issue for determination as formulated by the parties. The issues shall be considered separately.
On the first issue for determination, Counsel to the Appellant referred in his brief of arguments to the provisions of Order 23 rule 1 and of Order 5 rules 6 and 14 High Court of Kano State (Civil Procedure) Rules, 1988, being the procedural rules applicable in the High Court of Kano State at the times material to the suit. Counsel submitted that from a community reading of the said provisions, the Respondent, desiring to issue a Writ of Summons on the Appellant, who was in Kaduna, outside the territorial boundaries of Kano State, and under the undefended list procedure must obtains two leaves from the lower Court – (i) leave to issue the writ and place same under the undefended list procedure and mark same as such; and (ii) leave to issue the writ for service outside the territorial limits of Kano State and in Kaduna State. Counsel traversed through the prayers sought by the Respondent on his motion ex parte dated the 22nd of September, 2003 and the prayers granted by the lower Court on the 2nd of October, 2003 and stated that it was clear that leave to issue the writ of summons out of jurisdiction was not sought by the Respondent or granted by the lower Court. Counsel submitted that this omission was a condition precedent to jurisdiction and lack of which made the suit incompetent and that the lower Court was wrong when it held that the leave granted the Respondent to place the writ under the undefended list sufficed for leave to issue same out of jurisdiction.
In his response arguments on the first issue for determination. Counsel to the Respondent prefaced his submissions with the assertion that the contention of the Counsel to the Appellant was that apart from the leave obtained under the provisions of Order 23 Rule 1, of the High Court of Kano State (Civil Procedure) Rules, 1988, the Respondent was still obligated to seek and obtain another leave to issue the Writ of Summons under Order 5 rules 6 and 14. Counsel submitted that this contention was wrong and he endorsed the position of the lower Court that once the Respondent had sought for leave to serve the Writ of Summons out of jurisdiction, this was sufficient and the Respondent needed not seek for any other leave. Counsel stated that the situation would have been different had the Respondent not sought for and obtained leave before serving the Writ of Summons on the Appellant in Kaduna.
Additionally, Counsel submitted that even if the contention of Counsel to the Appellant was correct, non-compliance therewith did not occasion any miscarriage of justice in the instant case because the Writ of Summons was duly served on the Appellant and no objection was ever raised to the writ before the entry of judgment and the Appellant has not at any time denied his indebtedness to the Respondent. The complaint of the Appellant on this first issue for determination concerns the procedure adopted by the Respondent in commencing this suit and in igniting the jurisdiction of the High Court of Kano State to hear the matter. The High Court of Kano State (Civil procedure) Rules, 1988 governed the procedure applicable in the lower Court at the times material to this suit and it is obvious from the submissions of the parties that the resolution of this issue for determination will turn on the interpretation and effect given to the provisions of the High Court of Kano State (Civil Procedure) Rules, 1988.
The three provisions referred to by Counsel to the Appellant and Counsel to the Respondent in their respective arguments were Order 23 rule 1, Order 5 rules 6 and 14 of the High Court Rules. Order 23 rule 1 states:
“Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List” and mark the writ of summons accordingly, and, enter thereon a date for hearing suitable to the circumstances of the particular case.”
Order 5 rule 6 Provides:
“Subject to the provisions of these rules or any written law in force in the State, no writ of summons for service out of jurisdiction, or of which notice is to be given out of jurisdiction shall be issued without leave of a court or a judge in chambers.”
Order 5 rule 14 says:
“No writ which, or notice of which is to be served out of jurisdiction shall be issued without leave of court.”
The submissions of Counsel to the Appellant on the interpretation of these provisions were extensively considered by the lower court in its ruling and the lower court held thus:
“The court must therefore reject the submission of the learned counsel for the Judgment Debtor/applicant that the Judgment creditor who had applied for leave to issue file enter, place and mark the UNDEFENDED WRIT of summons and has applied for LEAVE TO SERVE the Judgment Debtor from Kano State to Kaduna State must apply for additional Leave to issue the same with against the same Judgment Debtor.
The court must hold that even if the plaintiff in Nigeria near the Equator has not applied for leave to issue, he can legally and lawfully apply for leave to serve the defendant who resides in Iceland near the North Pole.” (see Page 90 of the records)
In other words, the lower Court was of the view that since the Respondent, as plaintiff, had applied for and obtained leave of court to serve the writ of summons on the Appellant, as defendant, in Kaduna, outside the jurisdiction of the Kano High Court, the Respondent did not need to apply for leave to issue the writ of summons. This was the position articulated by the Counsel to the Respondent in his brief of argument. The poser here is – whether this view represents the correct position of the law?
It is elementary that where the provisions of a statute are clear and unambiguous, effect should be given to them as such unless it would be absurd to do so having regard, to the nature and circumstances of the case. Therefore, a court of law is without power to import into the meaning of a word, clause or section of a statute something that it does nor say. Indeed, it is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express – Awolowo V. Shagari (1979) 6-9 SC 51, Rabiu V. State (1980) 8-11 SC 130, Bronik Motors Ltd V. Wema Bank Ltd (1983) 1 SCNLR 296 and Federal Republic of Nigeria V. Osahon (2006) 5 NWLR (pt 973) 361.
Looking at the provisions of Order 23 rule 1, it is crystal clear that they have nothing to do with the issuance of a Writ of Summons for service outside the jurisdiction of the High Court of Kano State. They deal purely with the procedure to be followed in commencing an action under the Undefended List procedure- Olalekan V. International Merchant Bank Ltd. (2011) 5 NWLR (pt 1239) 183 and David V. Jolayemi (2011) 11 NWLR (pt. 1258) 320. They have nothing to do with issuance of a writ for service outside the jurisdiction of the Court. The relevant provisions to this point are Order 5 rules 6 and, 14 of the High Court of Kano State (Civil Procedure) Rules, 1988. Now, these provisions are not new. They were contained in the Civil procedure Rules of all the State High Courts and of the Federal High Court at one time or the other. Disputes over the import of the provisions are also not new. The provisions have been subject of interpretation by the Supreme Court in numerous cases. The position of the Supreme Court in all the cases has been largely consistent and it is that:
‘Where the address of the defendant is outside the jurisdiction of a trial High Court and the said defendant is thus residing outside the court’s jurisdiction, it is a condition precedent to the exercise of the court’s jurisdiction over him that a valid writ of summons must be issued and served on him. Also, in that circumstance and under the appropriate rules of court, the issuance of such writ and service on the said defendant can only be valid where leave of the High Court was sought and obtained for the issuance of the said writ it of summons and for its service on the defendant.’
In other words, by the provisions, similar in wordings to Order 5 rules 6 and 14 of the High Court of Kano State (Civil Procedure) Rules, 1988, no writ of summons for service outside the jurisdiction of a court should be issued without the leave of Court to issue such writ having been first had and obtained – Nwabueze V. Okoye (1988) 4 NWLR (pt 91) 664, Adegoke Motors Ltd V. Adesanya (1989) 3 NWLR (pt 109) 250, NEPA v. Onah (1997) 1 NWLR (Pt 484) 680, Odua Investment Ltd v. Talabi (1997) 10 NWLR (Pt 523) 1, Intra Motors (Nig) Plc V. Akinloye (2001) 6 NWLR (pt 708) 61, Drexel Energy and Natural Resources Ltd V. Trans International Bank Ltd (2008) 18 NWLR (pt 1119) 388, Agip (Nig) Ltd v. Agip Petroli International & Ors (2010) 5 NWLR (pt 1187) 348.
It is trite that where the provisions of a statute or section of a statute are in pari materia, light may be thrown on the meaning of such a provision of a statute or section which is in pari material by referring to a previous decision of a competent court where similar provisions had been previously considered – Attorney General, Abia State v. Attorney General, Federation (2005) 12 NWLR (Pt 940) 452. Where that previous decision was given by a court higher up in the judicial hierarchy then it becomes a matter of judicial precedent and is binding on the courts lower in the hierarchy where they are called upon to consider a provision similar to that earlier considered – Nwobodo v. Onoh (1984) 1, SCNLR 1, University of Lagos v. Olaniyan (1985) 1 NWLR (pt 1) 156 and Ngige v. Obi (2006) 14 NWLR (Pt 999) 1. This Court is thus bound by this interpretation given by the Supreme Court to similar provisions to Order 5 rules 6 and, 14 of the High Court of Kano State (Civil Procedure) Rules, 1988 and cannot depart from it.
The learned trial Judge and Counsel to the Respondent appeared to have equated leave sought for and obtained by the Respondent for the service of the Writ of Summons on the Appellant in Kaduna, outside the jurisdiction of the Court, with the leave required by Order 5 rules, 6 and 14 of the High Court of Kano State Civil Procedure) Rules to issue a writ of summons for service out of jurisdiction. They obviously forgot that the issuance of a civil process for service outside jurisdiction and the service of same are distinct, though inter-related steps, in civil litigation. The issuance of such a writ and its service are regulated by the Rules of Court and by the provisions of the Sheriffs and Civil Process Act. The provisions of the Rules of Court and of the Sheriffs and Civil Process Act on the subject do not conflict and neither do they supersede each other, as erroneously thought by the learned trial Judge. Rather, they are complimentary and a party seeking to commence an action against a person outside jurisdiction must comply with both of them. The Courts recognize this difference between issuance of a writ of summons and its service and have held that the issuance of a writ of summons may be valid while its service may be defective and vice versa – Nwabueze V. Okoye supra, Adegoke Motors Ltd. V. Adesanya supra, Owners of the MV “Arabella” V. Nigeria Agricultural Insurance Corp. (2008) 11 NWLR (pt 1097) 182, United Bank for Africa Plc V. Ademola (2009) 8 NWLR (Pt. 1142) 113, Agip (Nig) Ltd v. Agip Petroli International & ors supra and Touton SA V. Grimaldi Compagnia Di Naviga Zioni SPA (2011) 4 NWLR (pt 1236) 1. The leave required to issue a writ of summons for service out of jurisdiction is not the same as the leave required to serve a writ of summons out of jurisdiction. An intending plaintiff against a defendant outside jurisdiction must apply for both of them.
The orders sought by the Respondent in his motion ex parte dated the 22nd of September, 2003, and by which proceedings were initiated in this matter, and the orders made pursuant thereto by the lower Court on the 2nd of October, 2003 have been set out above. Nowhere therein was an order for leave to issue the writ of summons in this matter for service on the Appellant in Kaduna State, outside the jurisdiction of the lower Court, sought and obtained by the Respondent. What the Appellant sought and obtained were leave to issue and mark the writ of summons under the Undefended List pursuant to the provisions of Order 23 rule 1 of the High Court Rules of Kano State and leave to serve the writ of summons out of jurisdiction. The issuance of the writ of summons in this matter was in clear violation of the provisions of Order 5 rules 6 and 14 of the High Court of Kano State (Civil Procedure) Rules.
The next question that arises is what is the effect of this violation of these provisions of the Rules of Court? Counsel to the Appellant submitted that the omission was a condition precedent to jurisdiction and lack of which made the suit incompetent while Counsel to the Respondent opined that it was a mere irregularity and that non-compliance therewith did not occasion any miscarriage of justice in the instant case because the writ of summons was duly served on the Appellant and no objection was ever raised to the writ before the entry of judgment and the Appellant has not at any time denied his indebtedness to the Respondent.
This question was considered by the full panel of seven Justices of the Supreme Court in the case of Odu’a Investment Co. Ltd V. Talabi (1997) 10 NWLR (pt 523) 1. The Supreme Court considered the provisions of Order 2 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 1972, which is in pari materia with the provisions of Order 5 rules 6 and, 14 of the High Court of Kano State (Civil Procedure) Rules, 1988, and the provisions sections 97 and 99 of the Sheriffs and Civil Process Act. The Supreme Court also considered its seemingly conflicting earlier decisions on the issue in Skenconsult (Nig) Ltd V. Ukey (1981) 1 SC 6, Ezomo V. Oyakhire (1985) 1 NWLR (pt 2) 195, Nwabweze v. Okoye (1988) 4 NWLR (Pt 91) 664, Adegoke Motors Ltd V. Adesanya (1989) 3 NWLR (pt 109) 250 and NEPA V. Onah (1997) 1 NWLR (pt 484) 680. The Supreme Court reconciled its said earlier decisions and the decision of the court by a majority of six to one was read by Ogundare, JSC. The learned Justice stated at page 52 C-F thus:
“From all I have been saying, my answer to the question set out in this judgment, therefore, is that non-compliance with section 97 and/or section 99 of the Sheriffs and Civil process Act and the rule of court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled ex debitio justitiae to have same set aside as was done in Skenconsult, Nwabueze and NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused. I need point out, for the avoidance of doubt, that the power to set aside is without prejudice to the power of the Court to allow, in appropriate cases, such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit.
Turning to the case on hand, the appellant from the various steps it took in the proceeding, after service on it of the writ of summons cannot now be heard to complain of defects in the issue and service of the writ. It is too late in the day to do so. He has waived his right to complain. The trial must go on. Technicalities are a blot upon the administration of the law and the Courts have moved a long way from allowing them to make an ass of it and dent the image of justice.”
In other words, the position taken by the full panel of the Supreme Court was that non-compliance with the provisions of Order 5 Rules 6 and 14 of the High Court of Kano State (Civil Procedure) Rules only renders the writ voidable, not void, and that such a writ will be voided at the instance of a defendant who acts timeously and before further steps are taken in the matter.In the instant case, the learned trial Judge found in its ruling that the Appellant was served with the writ of summons in Kaduna on the 7th of October, 2003 (see page 81 of the records). The learned trial Judge also found that the Appellant was subsequently served with hearing notices on the 26th of January, 2004 and on the 26th of March, 2004 (see page 82 of the records). The Appellants has not contested these findings. What these mean is that the Appellant was aware of the non-compliance with the provisions of Order 5 Rules 6 and 14 of the High Court of Kano State (Civil Procedure) Rules since the 7th of October, 2003 when he was served the writ, he did nothing, and this was so despite being twice notified that the matter would be heard under the Undefended List. When the lower Court heard nothing from the Appellant, it proceeded to hear the case of the Respondent under the Undefended List and entered judgment on the 1st of April, 2004. It was not until after judgment that the Appellant for the first time by a motion dated 16th of April, 2004 raised the issue of non-compliance, over six months after service of the writ of summons on him. The Appellant did not act timeously, in the circumstances, and to allow the issue of non-compliance at the point at which the Appellant raised it would amount to promoting technicality over substantial justice. This Court will not allow itself to be used for such a purpose. The first issue for determination must thus be resolved in favour of the Respondent.
This takes us to the second issue for determination in this appeal i.e. whether the Kano State High Court is the proper jurisdiction to heat this matter. On the second issue for determination, Counsel to the Appellant referred to the provisions of Order 11 rules 3 and 4 of High Court of Kano State (Civil Procedure) Rules, 1988 which he said required actions such as this one in this suit to be commenced in the judicial division where either the contract ought to have been performed or where the defendant resides. Counsel traversed through the affidavit and counter-affidavit filed by the parties on the motion to set aside judgment and submitted that it was clear therefrom that the transaction that gave rise to this suit was performed between Kaduna and Lagos and that the Appellant, the defendant in the lower Court, resided in Kaduna. Counsel stated that the only connection of this suit to Kano was that the Respondent, the plaintiff in the lower Court, resided and carried on business in Kano. Counsel submitted that there was no basis for the finding of the lower Court that the transaction was entered into in Kano and he urged that Kano State High Court was not the proper forum for the matter.
In his response arguments on the second issue for determination, Counsel to the Respondent stated that the proper provision was Order 10 Rule 3 and not Order 11 Rule 3 of the High Court of Kano State (Civil Procedure) Rules, 1988 and that a look through the exhibits that the Respondent relied on to support his case under the undefended list procedure shows clearly that the contract leading up to this case was entered in Kano and was to be performed in Kano. Counsel submitted that these facts give Kano High Court the jurisdiction to hear and determine the matter.
In resolving this issue, it is pertinent to have a clear understanding of situation in this matter. It was not in contest between the parties that the Respondent, as plaintiff, resided and carried on business in Kano State while the Appellant, as defendant, resided and carried on business in Kaduna State, outside the territorial boundaries of Kano State. The Respondent commenced this action against the Appellant in Kano State High Court. The question is – whether the Kano State High Court can exercise jurisdiction over a defendant not resident or carrying on business within the territorial boundaries of Kano State? It is an inter-state matter and it touches upon the territorial jurisdiction of Kano State High Court. It has nothing to do with judicial divisions of the High Court of Kano State which is an intra-state matter and it is not governed by the High Court of Kano State (Civil Procedure) Rules. Thus, the references made to judicial divisions and to the High Court Rules in the submissions of Counsel to the parties were completely off the mark. This point was made in International Nigerbuild Construction Co Ltd V. Giwa (2003) 13 NWLR (Pt 836) 69 by the Court of Appeal thus:
‘There is a world of distinction between jurisdiction as it relates to the territorial or geographical jurisdiction of a court and jurisdiction in relation to the judicial division within which to commence an action. The distinction between venue, as an aspect of jurisdiction which could be administrative or geographical, in which a suit may be heard, is often provided in the rules of court of the various States of the Federation.
But when it comes to territorial jurisdiction, which is whether a suit ought to have been brought in one State but brought in another, the criteria is different.’
See also the case of I.K. Martins (Nig) Ltd v. University Press Ltd (1992) 1 NWLR (pt. 217) 322. The above passage was quoted with approval by I.T. Muhammad, JSC in the lead judgment in Dairo v. Union Bank of Nigeria Plc & Anor (2007) 16 NWLR (pt 1059) 99.
The concept of territorial jurisdiction is one of the most misunderstood concepts. This has always been due to lack of appreciation of the approach to dealing with the concept. The first step in the approach to dealing with a question of territorial jurisdiction of a court is to always understand that where there is a dispute as to the proper venue of hearing a matter that has inter-state elements, if an issue of conflict of laws or what is called private international law. This point was made by Wheeler J in the unreported judgment in Suit No K/65/70- Misr Nigeria Limited v. Yusufu
Ibrahim delivered on the 23rd of October, 1970 thus:
“Now Nigeria having a federal form of constitution with separate High Courts for each State, it would seem to me on principle that this question of jurisdiction of various State High courts, in the absence of legislature on the point, is governed by the rules of common law on the position in private international law.”
This passage was quoted with approval by the same Judge in Barzasi v. B. Visioni Limited (1973) 1 NRNLR 1 at 3-4.The point was restated in more recent times by Oduyemi, JCA in Professor Albert Ogunsola v. All Nigeria Peoples Party & 2 ors (2003) 9 NWLR (pt 826) 462 thus:
“Where the dispute as to venue is … as between the High court of one State and the High Court of another State of the Federation of Nigeria or between the High Court of one State in the Federation and the High Court of the Federal capital Territory then the issue of the appropriate or more convenient forum is one to be determined under the rules of private International Law formulated by courts within the Federation.”
Each state in Nigeria possesses its own rules prescribing the jurisdiction of its High Court in conflict of laws situations. These rules are contained in the High Court Laws of each State and, with the exception of the states making up the former Eastern Region, the rules are based substantially on the English Law. The jurisdiction of Kano State High Court in conflict of law situations is covered by the provision of Section 13 of the High Court Law of Kano State and it states that:
“The High Court, shall in addition to any other jurisdiction conferred by the Constitution of the Federation or by this or any other enactment, possess and exercise within the limits mentioned in and subject to the provisions of the Constitution of the Federation and this enactment, all the jurisdiction, powers and authorities which are vested in or capable of being exercised by the High Court of Justice in England.”
A verbatim provision contained in section 10 of High Court Law Lagos State has been interpreted by the Court of Appeal to mean that the High Court of Lagos State has the same power of jurisdiction in matters affecting conflict of laws as the Court of England – Barsoum V. Clemessy International & anor (1999) 12 NWLR (Pt 632) 516 at 526 and Zabusky v. Israeli Aircraft Industries (2008) 2 NWLR (pt 1070) 109. Following these decisions, it means that by section 13 of the High Court Law of Kano State, the High Court of Kano State has the same power of jurisdiction in matters affecting conflict of laws as the Court of England. This point was affirmed by Wheeler J in Barzasi V. B. Visioni Limited supra.
The English Court exercises jurisdiction, as a matter of right, in an action in personam under the English conflict of law rules, irrespective of where the cause of action arose, in three situations:
(a) Presence: Once the defendant sets foot in England and is served with the writ of summons, the English Court will exercise jurisdiction over the defendant and it makes no difference that the defendant was on a transient visit to England when he was served with the writ of summons and/or that the defendant thereafter departed from England – Colt Industries Ltd V. Sarlie (1966) 1 All ER 673, Razelos V. Razelos (1970) 1 All ER 386 and Maharanee of Baroda V. Wilderstein (1972) 2 All ER 689.
(b) Submission: Where a defendant outside jurisdiction accepts service through a Solicitor or an agent within jurisdiction and pleads to the merit of the case, he is deemed to have conferred jurisdiction on the English Court – Sphere Drake Insurance Plc V. Gunes Sikerta (1988) 1 Lloyds Rep 139 and The Messianiki Tolini (1984) 1 Lloyds Rep 266.
(c) Assumed Jurisdiction: Where a defendant is outside jurisdiction and he is duly served outside jurisdiction with a writ of summons issued with the leave of the English Court obtained under the Order 11 of the Rules of the Supreme Court of England, the English Court will assume jurisdiction over the defendant.
It is important to emphasize that under these rules of conflict of laws, the location of the place where the cause of action arose plays no part in determining jurisdiction of a court to hear the matter – Olayiwola Benson V. Joseph Oladipupo Ashiru (1967) NMLR 363, Nigerian Ports Authority V. Panalpina World Transport (1974) 1 NMLR 82 and Zabusky V. Israeli Aircraft Industries supra. The only exception is in respect of land matters: it is the court of the lex situs, i.e. the court of the place of location of the land, that possesses jurisdiction in land matters, and no other court – Lanlehin V. Rufai (1959) 1 FSC 184 and Societe General Bank (Nig) Ltd V. Festus Olabode Aina (1999) 9 NWLR (Pt 619) 414.
The applicable situation in the instant case is the third situation, assumed jurisdiction. Service of processes on a defendant outside the jurisdiction of State High Court but within the Nigerian Federation is governed by the provisions of sections 96, 97, 98 and 99 of the Sheriffs and Civil Process Act. The authority for service of a writ of summons out of jurisdiction of a court, but within the country, is section 96 of the Sheriffs and Civil Process Act. It reads:
96 (1) A writ of summons issued out of or requiring the defendant to appear at any court of a State or the Federal Capital Territory may be served on the defendant in any other State or the Federal Capital Territory.
96 (2) Such service may, subject to any rules of court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Federal Capital Territory in which the writ was issued.
Sections 97 and 99 require that such writ of summons issued for service outside jurisdiction must carry on its face an endorsement stating the State in which it was issued and the State it is to be served in and it must also state the time within which the defendant may enter appearance to be thirty days. It is by the provisions of section 96 of the Sheriffs and Civil Process Act that the High Court of a State exercises jurisdiction over defendants outside the territory of the State and once the writ of summons is duly issued and served on such a defendant, the Court will exercise jurisdiction over him as if he was served within the territory of the State – Owners of the MV “Arabella” V. Nigeria Agricultural Insurance Corp (2002) 15 NWLR (Pt 791) 570 at 585 E-G.
In the instant case, the Appellant, as defendant, was duly served in Kaduna State with the writ of summons issued out of the High Court of Kano State. The High Court of Kano State thus had jurisdiction to entertain this matter. The second issue for determination is also resolved in favour of the Respondent.
In conclusion, this Court finds no merit in this appeal and same is hereby dismissed.
The ruling of the Kano State High Court in Suit No K/759/2003 delivered by Honorable Justice B. S. Adamu on the 30th of June, 2004 is hereby affirmed. The judgment entered by the lower Court in Suit No K/759/2003 on the 1st of April, 2004 is also affirmed. The respondent is awarded the costs of this appeal assessed at N30,000.00. These shall be the orders of this Court.
DALHATU ADAMU, J.C.A.: I have gone through the judgment just delivered by my learned brother Habeeb Adewale Olumuyiwa Abiru, JCA. I agree with his lordships conclusion that there is no merit in the appeal. It is also dismissed by me. I abide by the order on cost made in the said lead judgment.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading a draft of the judgment just delivered by my learned brother Habeeb A.O. Abiru JCA. My Lord has, succinctly, discussed and considered the salient issues raised, quite expertly and admirably and I agree with his sound regal reasoning and conclusion.
I must, however, add that the Undefended List procedure, which is available in every High Court Rules in Nigeria, is a special procedure, being of its own class, and meant to achieve a peculiar purpose of hearing and determining claims of debt and liquidated money demands, speedily, without subjecting such claims to the usual cumbersome process of hearing the claim by pleadings, with its attendant inbuilt mechanisms that make the case susceptible to delays and frustration by the opposite party. See the case of ILORIN EAST LOCAL GOV. V. ALASINRIN (2012) ALL FWLR (pt. 645) 226 at 244.
Order 22, Rule (1) of the Kwara State High Court (Civil Procedure) Rules allows a claim for debt or liquidated money demand to be taken out and heard under what is called the undefended Procedure or undefended list, when it is adjudged that the defendant has no defence to the action. Of course, it is well known that proceedings taken under the defended list Procedure are sui generis, being in a special class and intended to give summary judgment to a creditor in obvious claims of indebtedness or outstanding monetary claims, which are indefenceable. It is aimed at killing time and removing undue struggle, thus avoiding the normal process of hearing, which would require filing of pleadings and calling of witnesses to prove the claim, with all the time and energy input, struggle, contention and legal fireworks by the parties and counsel at the hearing.
The Respondent in this appeal had applied under Order 23 Rule 1 of the High Court (Civil Procedure) Rules of Kano State for the writ to be issued and placed on the undefended list. In the application, the Respondent also prayed for the writ to be served on the Appellant, out of the jurisdiction of the court, but without specifically asking, again, that the writ be issued (under Order 5 Rule 6 of the same Rules) for that purpose, and without pleading the said order 5 Rule 6, to back up the application for service out of the jurisdiction of Kano High Court.
When one considers the fact that the leave of the court was actually invoked before the writ was issued, as per order 23 (1) of the Rules of court (though for the purpose of placing the case on the Undefended list), it sounds absurd to me, and as pandering to undue technicality, to require the express mention of order 5 Rule 6, and/or the express stating of the phrase “that the writ be issued on the Respondent out of jurisdiction,” to validate the writ served on the Appellant out of jurisdiction.
I think the fact that the writ was issued with the leave of court (as per order 23 Rule 1), should suffice the requirement for leave to issue the writ served on the Appellant, especially, as the learned trial court, when granting leave to issue the writ, did so with the background knowledge that the writ, which was to be placed on the undefended list, was to be served outside the jurisdiction of the court, and it expressly made provision for that, giving the Respondent 30 days to react to the writ as required of a writ issued for service out of jurisdiction (not 4 or 8 days)!
I do not think it was necessary for the Respondent to, specifically; bring a separate motion for issuance of the writ under Order 5 Rule 6 of the High Court Rules, before applying to the same court, again, for issue (a second time?) of the writ and placing same on the undefended list!
To do that would defeat the whole essence of Order 23 of the Rules (Undefended List Procedure) meant for speedy trial of a suit which a Defendant, obviously, does not defend, and has no defence to.
It is interesting to note that Appellant in this case never raised any defence against the suit, and only appeared interested in using technicalities to frustrate the Respondent. The law would not allow Appellant to use technicalities to frustrate justice.
See the case of OCEANIC BANK PLC. V. MICHAEL OLUSEGUN OLADEPO: CA/IL/M.64a/2011 (an unreported decision of this court), delivered on 11th December, 2012, where a similar situation was considered, as Appellant, who was served an Order Nisi, refused to show cause, and waited for the Order absolute to be entered for recovery of debt, before it applied for the Order absolute to be set aside, claiming that its name was not properly written on the writ, or that by the Respondents named on the writ (and motion exparte) it was not a juristic person. The court held:
“I think it would have served the interest of the Appellant more as well as show respect to the court, for Appellant to have reacted to the Process as served on her branch manager, either by protesting the wrong use of her name and returning the same to the court as wrongly served on them, or, yet still, by disclosing the account status of the 2nd Respondent whether or not she (Appellant) could settle the debt, as she (Appellant) had admitted being the 2nd Respondent’s bankers!
By accepting the court processes on 2nd December, 2010, the reasonable presumption of the law was that the Appellant did not mind the defect on her name on the processes, as she was addressed “OCEANIC BANK” (instead of OCEANIC BANK PLC). I think the Appellant had waived the right to complain that it was not the Person addressed by the Processes, having accepted service and did not raise any complaint within the time allowed in the process, and before the Order Nisi was made absolute, after having collected the Order to show causer and even going to that Court on 26th January, 2011 for the case, and was in a position to know of the next adjournment date of the case!
Appellant had argued that the originating Process (Order Nisi to show cause) served on her was defective as it carried the name of a non-juristic Person “OCEANIC BANK”. As earlier reasoned in this judgment, that argument, in my view, can no longer avail the Appellant, after she had acted sufficiently to waive her right to complain against the error in its name. See the case of SOBAMOWO V. ELEMUREN (2008) ALL FWLR (Pt. 433) 1359, on waiver.
I think the law will be unduly insensitive and technical, if it allows the Appellant to collect the Garnishee Order to show cause, but fail to act within the time allowed her in law, only to emerge after the Garnishee Order Absolute to say that the processes which she collected were addressed to a non juristic juristic person, simply because “Plc” was omitted in the name it was sued. She should not have collected the Processes and/or kept them and went to sleep! Of course, the Appellant was not misled by the said Order Nisi, issued to Oceanic Bank (without the suffix ‘LTD’)”
With this and the more elaborate reasons in the Lead judgment, I too dismiss the appeal and abide by the consequential orders therein.
Appearances
A. A. IroagalachiFor Appellant
AND
M. M. GamaFor Respondent
