DAVANDY FINANCE AND SECURITIES LIMITED & ORS v. ELDER EMMANUEL MBA AKI & ORS (2015)

DAVANDY FINANCE AND SECURITIES LIMITED & ORS v. ELDER EMMANUEL MBA AKI & ORS

(2015)LCN/8059(CA)

In The Court of Appeal of Nigeria

On Thursday, the 26th day of February, 2015

CA/A/195/2013

RATIO

COURT: JURISDICTION: WHETHER THE AN ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE FOR TH FIRST FIRM WITHOUT LEAVE

I must quickly state that the first part of issue two is derived from ground 4 of the grounds of appeal which raises an issue as to the jurisdiction of the trial court to entertain the claim. Even though it is a fresh issue not having been raised and determined at the trial court it is competent since it raises an issue of jurisdiction which can be raised at any stage for the first time without leave. See COMPTROLLER GENERAL, PRISONS V. IDEHEN (2010) 3 NWLR (1182) 503, 513. per. JOSEPH E. EKANEM, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES CAN BE FORMULATED IN A REPLY BRIEF
It has been held in the case of AMADASUN V. UME (2007) 13 NWLR (1051) 214, 228 that there is no provision in the Court of Appeal Rules for the formulation of issues in a reply brief. per. JOSEPH E. EKANEM, J.C.A.

COURT: DUTY OF A COURT: THE DUTY OF A COURT TO CONSIDER THE ISSUE BEFORE IT ON THE MERIT AND SEE IF IT CAN BE SUSTAINED IN LAW

It must be observed that counsel for the respondents did not offer any argument on this point of jurisdiction. The law views this as amounting to conceding the issue. This however does not automatically mean that the issue must succeed as the court still has a duty to consider the issue on the merit and see if it can be sustained in law. See ATIKU V. STATE (2010) 9 NWLR (1199) 241, 282. per. JOSEPH E. EKANEM, J.C.A.

COURT: JURISDICTION; WHAT IS THE MEANING OF JURISDICTION AND THE IMPLICATION OF THE LACK OF THE SAME IN A PROCEEDING

Jurisdiction is the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. Such authority is controlled or circumscribed by the constitution or the statute creating the court or it may be circumscribed by a condition precedent created by a legislation which must be fulfilled before the court can entertain the suit. Where a court lacks jurisdiction, the proceedings no matter how well conducted amount to a nullity. See NDAEYO v. OGUNNAYA (1977) 1 SC II, ALADEJOBI V. NIGERIAN BAR ASSOCIATION (2013) 15 NWLR (1376) 66, 81 AND AMOBI V. NZEGWU (2014) 2 NWLR (1392) 510, 536. per. JOSEPH E. EKANEM, J.C.A.

COURT: JURISDICTION; WHAT DETERMINES THE JURISDICTION OF THE COURT

It is the plaintiff’s claims that determine the jurisdiction of the court. The court is to examine the enabling law vesting jurisdiction in the court in the light of the reliefs sought by the plaintiff, where the reliefs sought fall within the jurisdiction of the court, the court must assume jurisdiction. Where the reliefs fall outside its jurisdiction it must decline jurisdiction. See ADEYEMI V. OPEYORI (1976) 9 – 10 SC 31 and EDJOREDE V. IKINE (2011) 18 NWLR (745) 441. per. JOSEPH E. EKANEM, J.C.A.

COURT: JURISDICTION; THE JURISDICTION OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA

The jurisdiction of the High Court of the Federal Capital Territory Abuja is set out in Section 257(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It provides as follows.
“Subject to the provision of Section 251 and any other provision of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability privilege, interest, obligation or claim is in issue…”
Thus the High Court of the Federal Capital Territory, Abuja, is a court of unlimited jurisdiction subject to any limitation imposed upon it by section 251 of the Constitution or any other provision thereof. Its jurisdiction cannot be eroded by an Act of the National Assembly. Where there is a conflict in that regard between the provisions of the Constitution and the provisions of an Act of the National Assembly, the Constitution shall prevail. see Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and NATIONAL UNION OF ELECTRICITY EMPLOYEES V. BUREAU OF PUBLIC ENTERPRISE (2010) 7 NWLR (1194) 538, 570 and 572. per. JOSEPH E. EKANEM, J.C.A.

JUSTICES

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

1. DAVANDY FINANCE AND SECURITIES LIMITED
2. GP. CAPT ITA D. TKPEME (RTD)
3. CHIEF ASUQUO EKPENYONG
4. DR. (MRS) IQUO EKPENYONG
5. MR BASSEY EWA HENSHAW Appellant(s)

AND

1. ELDER EMMANUEL MBA AKI
2. ELDER MRS CHINYERE UKONU
3. MR CHRISTAIN AKI MBA Respondent(s)

JOSEPH E. EKANEM, J.C.A. (Delivering The Leading Judgment): This appeal is against the ruling of the High Court of the Federal Capital Territory, Abuja Judicial Division (“the trial court” for short) delivered on 21/3/2013 in suit No.CV/574/12. In the ruling, the trial court dismissed the preliminary objection raised by the appellants (qua defendants) challenging the competence of the suit and the jurisdiction of the trial court.

The suit was commenced as an undefended list matter by means of a writ of summons issued on 31/10/2012 by the hand of the registrar of the trial court. It is supported by an affidavit with exhibits attached thereto. The writ was meant for service on the appellants (qua defendants) at various addresses in Calabar, Cross River State, outside the jurisdiction of the trial court. On 8/11/2012, after the issuance of the writ, by a motion exparte, the respondents applied for,

“An order granting leave to the plaintiffs/applicants to issue and serve the writ of summons and other processes in this suit on the Defendants through DHL courier service at: No. 9, Chamley Street, Calabar, River State (Sic, Cross River State)

No. 118, Ndidem Iso Road, Calabar, Cross River State.

No. 10 Ewa Henshaw Street Calabar, Cross River State.”

On 9/11/2012, the trial court granted the application and adjourned the case to 14/1/2013 for hearing. The 1st appellant thereafter filed a memorandum of conditional appearance and a notice of preliminary objection attacking the competence of the suit on two grounds, viz: (I) that the writ for service outside jurisdiction was issued without leave of court first sought and had (II) that the writ of summons is incompetent and the court lacks jurisdiction. It is the ruling of the trial court dismissing the preliminary objection that is the subject of this appeal which was initiated by a notice of appeal containing four grounds of appeal.

In his brief of arguments, Kanu G. Agabi, CON (SAN) of counsel, for the appellants, formulated two issues for the court’s determination of the appeal.

The issues are:

“1. Whether the learned trial judge rightly assumed jurisdiction over the claims of the respondents despite the fact that the writ of summons was issued and served on the appellants without the leave of court first sought and obtained in clear violation of ORDER 4 RULE 6 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004, and Section 97 of the Sheriffs and Civil Process Act. (Arising from Grounds 1 and 2 of the grounds of appeal).

2. Whether the claims of the respondent which borders on investment funds is not a transaction governed by the Investment and Securities Act to which the Investment and Securities Tribunal is seized of jurisdiction and whether the respondent complied with ORDER 4 RULE 17 of the High Court of the Federal Capital Territory Abuja (Civil Procedure Rules) 2004 (Grounds 3 and 4).

However, the second arm of issue two is not an issue of jurisdiction strictly speaking. It is an issue which to my mind touches on compliance or non – compliance with rules of court which does not go to the jurisdiction of the court. It is a matter of procedure. It was not canvassed before the trial court and was not determined by it. Leave of this court ought to have been sought for and obtained before raising it. This not having been done, ground 3 and the second arm of issue two are incompetent and are liable to be struck out. I hereby strike the same out. See OGBU V. ONWUZO (2005) 14 NWLR (945) 331 and ORGAN V. NIGERIA LIQUIFIED NATURAL GAS LIMITED (2013) 16 NWLR (1381) 500, 532 – 533.

On his part Emeka Ugwuowu, Esq. Of counsel, for the respondents, formulated the following issues for the determination of the appeal,

“1. Whether the appellants were right in raising a preliminary point of jurisdiction without first filing a notice of intention to defend and whether the court can determine if the respondent’s claim bothers (sic) on investment funds without perusing the notice of intention to defend with its affidavit

2. Whether obtaining leave to issue after filing of the writ of summons but before actual service of same on the defendants is bad in law and whether the non endorsement of the writ for services outside jurisdiction voids the said writ of summons,”

I have read over and over issue one formulated by the respondents in the light of the grounds of appeal filed by the appellants. It is clear to me that it does not arise from any of the said grounds of appeal. A respondent who has not cross appealed or filed a respondent’s notice, as in this case, is not permitted to formulate issues for determination which are not derived from the grounds of appeal. Such issues are incompetent and are liable to be struck out. See ARUM V. NWOBODO (2013) 10 NWLR (1362) 374, 395. I therefore strike out issue one in the respondents’ brief along with the arguments relating thereto.

It must be mentioned that appellants’ counsel filed a reply brief in which he formulated two issues for determination.
It has been held in the case of AMADASUN V. UME (2007) 13 NWLR (1051) 214, 228 that there is no provision in the Court of Appeal Rules for the formulation of issues in a reply brief. I shall discountenance the issues formulated in the reply while not ignoring relevant arguments in it.

It is my view that two issues arise for the determination of this appeal. The issues are;

1. Whether or not the trial court rightly assumed jurisdiction despite the fact that the writ of summons was issued and served on the appellants without the leave of court first sought and obtained and without the required endorsement

2. Whether or not the trial court had jurisdiction over the case,

I propose to deal with the issues by starting with issue two.

ISSUE TWO

Senior counsel for the appellants submitted that issues relating to disputes between capital market operators, their clients and investors generally are within the exclusive jurisdiction of the Investment and Security Tribunal. Referring to section 284 of the Investment and Securities Act, 2007, he stated that it is clear that a dispute arising from investment funds falls exclusively within the jurisdiction of the Investment and Securities Tribunal. He referred to the claims of the respondents, paragraphs 6 and 11 of the affidavit in support of the writ of summons and further submitted that the respondents’ principal claims relate directly to the demand for the release of their “portfolio investment” deposited with the appellants. It was his view that it is the Investment and Securities Tribunal that is seized of jurisdiction to entertain the suit to the exclusion of any other court. He cited and relied on the case of AJAYI V. SECURITIES AND EXCHANGE COMMISSION (2009) 13 NWLR (1157) 1, 26 to support his submission.

I therefore answer issue two in the affirmative and resolve it in favour of the respondents.

ISSUE TWO

Senior counsel for the appellants submitted that the trial court lacked the jurisdiction to entertain the claim of the respondents when no leave of court was sought and obtained as required by the rules of the court and Section 97 of the Sheriffs and Civil Process Act, Cap 407, Laws of the Federation of Nigeria 1990. He referred to Order 4 Rule 6 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules) 2004 and submitted that it makes it mandatory for an applicant to seek and obtain the leave of court before a writ can be issued and served outside the jurisdiction of the issuing court. He cited and relied on NWABUEZE V. OBI-OKOYE (1988) 4 NWLR (91) 664, NEPA V. ONAH (1997) 1 NWLR (484) 680, 689, SKEN CONSULT NIGERIA LIMITED V. UKEY (1981) 1 SC 6 and ODUA INVESTMENT CO LTD V. TALABI (2007) 10 NWLR (523) 1, 28 apart from other cases to buttress his submission.

He referred to the motion ex-parte seeking leave to issue and serve the writ by substituted means which was granted after the writ was issued. He was of the view that this was not a mere irregularity but that it went to the root of the proceedings thus rendering the writ invalid. He distinguished between leave for service outside jurisdiction and leave to serve by substituted means, and submitted that the leave sought and obtained was to serve the writ by substituted means.

Senior counsel stated that the respondents did not endorse the writ for service outside jurisdiction as required by Section 97 of the Sheriffs and Civil Process Act. Citing the case of NWABUEZE V. OKOYE supra, he submitted that this was fatal.

Senior counsel thereafter submitted that the order for substituted service was invalid as no material was placed before the court in that regard and that it was bad to order substituted service on the 1st appellant, a limited liability company. He cited and relied on MARK V. EKE (2004) 5 NWLR (865) 54. I must state straight away that there is no issue upon which these submissions are based. In deed that is so because there is no ground of appeal complaining about the propriety of granting the order under attack. I therefore discountenance the submission as being a bolt from the blue.

Counsel for the respondents submitted that failure to obtain leave is an irregularity which can be cured by the exercise of the court’s discretion. He referred to and relied on CT & FC V. NNPC (2002) 14 NWLR (786) 133, 150 -151 to support his submission. He went on to submit that it is the duty of the Registrar of the trial court to make the necessary endorsement on the writ. On this he cited and relied on BROAD BANK LIMITED V. OLAYIWOLA (delivered on 14/1/2005 – unreported) now reported as BROAD BANK NIGERIA LIMITED V. ALHAJI S. OLAYIWOLA and SONS LIMITED (2005) 3 NWLR (912) 434.

It is clear from the addresses endorsed on the writ of summons in the instant case that the appellants reside in Calabar, Cross River State which is outside the territorial jurisdiction of the High Court of the Federal Capital Territory, Abuja. Order 4 Rule 6 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004 (“the High court Rules” for short) provides as follows;
“Subject to these Rules or any written law in force in the Federal Capital Territory, Abuja, 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 Judge in Chambers.”
Section 97 of the Sheriffs and Civil Process Act (“the Act” for short) states,
“Every writ of summons for service under this part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)
“This summons (or as the case may be) is to be served out of the State (or as the case may be) and in the State (or as the case may be).”
While the High Court Rules deal with issuance of a writ of summons for service outside jurisdiction, the Act deals with service of such writ outside jurisdiction. The former provides that leave of court shall be obtained before the issuance of such writ; the latter provides that the required endorsement shall be made on such a writ.
The writ of summons in the instant case was issued on 31/10/2012 by virtue of its being signed by the Registrar of the court in line with Order 4 Rules 15 of the High Court Rules. See NATIONAL DEPOSIT INSURANCE CORPORATION V. AKAHALL and SONS LIMITED (2004) 5 NWLR (969) 245, 274. Thereafter, on 8/11/2012 the respondents applied for,
“Leave to ….. issue and serve the writ of summons and other processes … on the defendant through DHL. Courier service at….. Calabar, Cross River State.”
The order was granted on 9/1/2012. It is my view, contrary to the argument of appellants’ senior counsel that the prayer as granted even though inelegantly couched and wanting in precision was for, inter alia, leave to issue the writ of summons for service out of jurisdiction. The only snag is that it was applied for and was granted after the issuance of the writ. What is the effect of this? I shall essay to answer the question anon.
It is also clear from a look at the writ of summons that the endorsement required to be made by section 97 of the Act was not made on it. The question arises, what is the effect of this failure on the validity of the writ?
The effect of a breach of the provisions under review has been the subject of judicial attention in a plethora of cases. Two parallel lines of judicial opinions appeared to emerge from the cases, viz;
(i) A breach of the provisions renders the issuance and service of the writ a nullity. See SKENCONSULT NIGERIA LIMITED V. UKEY (1981) 1 SC 6, NWABUEZE V. OBI – OKOYE (1988) 4 NWLR (91) 664, NEPA V. ONAH (1997) 1 NWLR (484) 680, OWNERS OF MV “ARABELLA”V. NDIC (2008) NWLR (1097) 84. DREXEL ENERGY AND NATURAL RESOURCES LTD V. TRANS INTERNATTONAL BANK LTD. (2008) 18 NWLR (1119) 399.
(ii) A breach of the provisions makes the issuance and service of the writ voidable or it is an irregularity which can be waived by not raising it timeousely. See EZOMO V. OYAKHIRE (1985) 1 NWLR (2) 195 and ADEGOKE MOTORS LTD V. ADESANYA (1989) 3 NWLR (109) 250.
Thankfully, in the case of ODU’A INVESTMENT COMPANY LIMITED v. TALABI (2007) 10 NWLR (523) 1, a full bench of the supreme court (by a majority of 6 to 1) held that there was no real conflict in the two sets of decisions as each case was decided on its peculiar facts. At page 52, Ogundare, JSC, in his lead judgment, stated as follows;
“….. 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 debito justitae to have same set aside….. provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of.”
This decision has been followed in other cases including CHRISTABEN GROUP LIMITED V. ONI (2008) 11 NWLR (1097) 89 and the OWNERS OF MV “MSC” ‘AGATE V. NESTLE (NIG) PLC (2014) 1 NWLR (1989) 270. Every other case that preceded or followed ODU’A INVESTMENT COMPANY LIMITED supra, must be understood in its light.
Since the respondents, after the issuance of the writ of summons, applied for and obtained leave to issue the writ out of jurisdiction, it is my view that the irregularity of issuance of the writ without leave was cured by the order of court in the right of Order 2 Rule 1(1) and 2 (c) of the High Court Rules which provides;
“(1) Where in commencing proceedings, or at any stage in the course of proceedings, there appears to be a failure to comply with the provisions of these Rules, in respect of time, place, form or content or other, the failure may be treated as an irregularity, which shall not nullify the respective proceedings…”
2(c) “Make any order dealing with the proceedings generally as it thinks just, on such terms as to costs.”
In the case of CARIBBEAN TRADING AND FIDELITY CORPORATION V. NNPC (2002) 14 NWLR (786) 133, 151, the Supreme Court held that failure to obtain leave to serve out of the jurisdiction of a court is an irregularity which could be cured by the exercise of the court’s discretion. It is therefore my view at the pain of repetition that the irregularity of the failure to obtain leave before the issuance of the writ was cured by the subsequent order of the trial court.
As regards the failure to endorse the writ, it is my view that it is the registrar of the court who has the responsibility of entering the required endorsement on the writ. The responsibility of a plaintiff’s counsel is to complete the relevant form (forms 1, 2, 3 or 4 which do not bear the endorsement) and pay the assessed fee therefor. Once he does this, his duty ends and the registrar’s duty which includes entering the required endorsement begins. Where the registrar fails to make the endorsement, a plaintiff cannot be punished for the failure. I draw strength for this conclusion from the following cases, BROAD BANK OF NIG LTD V. ALHAJI S. OLAYIWOLA & SONS LIMITED (2005) 3 NWLR (912) 434, 457, OLATUNBOSIN V. ANNENIH (2009) 15 NWLR (1165) 560, 571 AND PANALPINA WORLD TRANSPORT HOLDING AG. V. CEDDI CORPORATION LIMITED (2012) 2 NWLR (1285) 465, 495.

I therefore answer issue one in the affirmative and resolve the same in favour of the respondents.

Having resolved the two issues against the appellants, I come to the inexorable conclusion that the appeal lacks merit. I accordingly dismiss it. I affirm the ruling of the trial court which dismissed the preliminary objection of the appellants.

I assess the costs of the appeal at N50,000:00 in favour of the respondents.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the judgment just delivered by my learned brother, Ekanem, JCA I am in agreement with the reasoning and conclusion arrived at by my learned brother who has duly considered the salient issues raised and canvassed in this appeal.

I also dismiss the appeal, and abide by the Order as to costs.

MOHAMMED MUSTAPHA, J.C.A.: I read in draft form the judgment just delivered by my learned brother, Joseph E. Ekanem, JCA. I agree with his reasons and the conclusions that the appeal is unmeritorious. I adopt same in dismissing the appeal, accordingly, I dismiss the appeal and affirm the ruling of the trial court delivered on 21/3/2013 in Suit No: CV/574/12.

I abide by the order made as to costs in favour of the respondents and against the appellants.

Appearances

John Ochogwu, Esq (With him, A. E. Afolarin, Esq., Mrs C. O. Ayode, Messrs E. M. Erim and O. N. Balogun)For Appellant

AND

Emeka Ugwuowo, EsqFor Respondent