JVC PROFESSIONAL PRODUCTS (U.K.) LTD v. MR. MICHAEL FAMUYIDE & Ors
(2010)LCN/3958(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of July, 2010
CA/L/234/04
RATIO
DUTY OF COURT: WHETHER THE COURTS MUST LIMIT THEMSELVES TO THE WRIT OF SUMMONS AND STATEMENT OF CLAIM IN DETERMINING WHETHER THERE EXISTS A CAUSE OF ACTION
It is now trite that courts limit themselves or are enjoined to limit themselves to the writ of summons and statement of claim in order to determine that there exists a cause of action and no other. See: Cookey v. Fombo (2005) 15 NWLR (Pt 947) 182, Rinco Const. Co. v. Veepee Ind. Ltd. (2005) 9 NWLR (Pt 929) 85 at 99 and Bamgbade v. Balogun (1994) 1 NWLR (Pt 323) 718. PER ADZIRA GANA MSHELIA. JCA
POWERS OF COURT: WHETHER THE GRANT OR REFUSAL OF AN APPLICATION IS WITHIN THE DISCRETIONARY POWER OF A COURT
A grant or refusal of an application is purely within the province of the discretionary powers of the trial court. Such discretion must at all times however be exercised not only judicially but also judiciously on sufficient materials. See: Udansi v. Odusote (2003) 6 NWLR (Pt.817) 545; Ogbuehi v. Governor Imo State (1995) 9 NELR (Pt.417) 53, University of Lagos v. Aigoro (1985) 1 NWLR (Pt 1) 143. PER ADZIRA GANA MSHELIA. JCA
INTERFERENCE WITH THE EXERCISE OF DISCRETION: CIRCUMSTANCE UNDER WHICH AN APPELLATE COURT WILL INTERFERE WITH THE EXERCISE OF DISCRETION BY A LOWER COURT
The law is clear that a discretion properly exercised by a trial or lower court will not be lightly interfered with by an appellate court even if the appellate court was of the view that it might have exercised the discretion differently. See: Williams v. Williams (1987) 2 NWLR (Pt.54) 66, Saraki v. Kotoye (1990) NWLR (Pt.143) 144 at 171; Ngwu v. Onuigho (1999) 13 NWR (Pt.636) 512 at 524 – 525; Oyekanmi v. NEPA (2000) 15 NWLR (Pt.690) 414 at 438 – 439 and Adejumo v. State (2006) 9 NWLR (Pt 986) 627. 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 an appellate court will not abdicate its duty to interfere with the exercise of that discretion in order to correct or prevent the injustice. See: Solanke v. Ajibola (1968) NSCC (vol.7)231 of 235. PER ADZIRA GANA MSHELIA. JCA
CAUSE OF ACTION: MEANING OF CAUSE OF ACTION
A cause of action is every fact, which is material to be proved to entitle the plaintiff to succeed, or all those things necessary to give a right to relief in law or equity. PER ADZIRA GANA MSHELIA. JCA
ISSUES FOR DETERMINATION: WHETHER THE COURTS CAN RESOLVE ISSUES MEANT FOR SUBSTANTIVE SUIT AT THE INTERLOCUTORY STAGE
Court’s are enjoined not to resolve issues meant for substantive suit at interlocutory stage. The Supreme Court in a myriad of decisions followed by this court have consistently held that issues to be determined in a substantive appeal should not unwittingly be decided at interlocutory stage. See: NDIC v. S.B.N. Plc. (2003) 1 NWLR (Pt 801) 371; Iweka v. SCOA (Nig) Ltd. (2000) 7 NWLR (Pt 664) 325 at 338 and Ola v. Williams (2003) 5 NWLR (Pt 812) 48 at 66 paragraphs E – F. PER ADZIRA GANA MSHELIA. JCA
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
JVC PROFESSIONAL PRODUCTS (U.K.) LTD Appellant(s)
AND
1. MR. MICHAEL FAMUYIDE
2. FADALER ENTERPRISES NIGERIA LIMITED
3. NIGERIA TELEVISION AUTHORITY Respondent(s)
ADZIRA GANA MSHELIA. JCA (Delivered the Leading Judgment) The plaintiffs (now Respondents) commenced an action at the High Court, Lagos State and by their writ of summons and statement of claim, dated 31st day of October, 2002, sought for the following reliefs against the defendant (now appellant). The reliefs are:-
“12 a. The sum of N554, 736,000.00 (Five Hundred and fifty four million seven Hundred and Thirty six Thousand Naira only) being the commission due to the plaintiffs from the equipment worth N3,467,100.000.00 (Three Billion, Four Hundred and Sixty seven million, One Hundred Thousand Naira only) sold to the Nigerian Television Authority sometimes in the year 2000.
Interest at the rate of 21% per annum from the year 2000 until judgment is delivered and 6% thereafter until the sum is fully liquidated.”
The plaintiffs/Respondents filed a motion Ex parte to serve the writ of summons and statement of claim on the Defendant/Appellant in the United kingdom outside the jurisdiction of the High Court of Lagos State and by substituted means. The application was granted as prayed by the learned trial judge on 27th January, 2003. Upon service of the writ of summons and statement of claim by substituted means in the United Kingdom, the Appellant in response entered a conditional appearance on the 14th day of July, 2003. On 12th of September 2003, the appellant filed a motion praying for an order discharging the order of the High Court of Lagos State directing service of the originating processes out of jurisdiction by substituted means on it, and a further order setting aside the said service on the appellant.
The application was predicated on the following grounds namely:
1. That the order for service outside the court’s jurisdiction was obtained upon misrepresentation or concealment of material facts.
2. Had all the material facts been disclosed on the affidavit in support of the application the court would have found that it did not disclose a good/arguable case.
3. The affidavit in support does not disclose a good/arguable case and does not conform with the requirements of Order 8 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 1994.
Upon hearing parties on the merit of the application, the Learned trial Judge Kekere-Ekun J. in a considered Ruling held at page 96 of the record as follows:-
“I hold that there is no basis for discharging the order of this court granted on 27/1/03 directing the service of the processes herein on the defendant/Applicant outside the jurisdiction of the Court. It is accordingly refused. The application to set aside the service of the said processes on the defendant is also refused. The application is accordingly dismissed.”
Aggrieved with the ruling of the court below, appellant lodged an appeal to this court vide its Notice of Appeal dated 23rd day of March 2005 which same was amended by leave of this court
granted on 19th day of May, 2009. The amended Notice of Appeal contained Seven grounds of appeal. In accordance with the practice of this Court, Appellant’s brief of argument settled by B.J. Fagbohunlu, (SAN) was filed on 22/5/09. While 1st and 2nd respondents filed their brief of argument on 19/06/09. At the hearing of the appeal, Appellant’s counsel Mr. Adegbonmire withdrew the appeal against the 3rd respondent and same was deemed dismissed pursuant to Order 11 Rule 5 of the Rules of Court 2007. A notice of preliminary objection dated 18/6/09 and filed on 19/6/09 by the respondents was argued first by Mr. Adebayo Esq. Mr. Adegbonmire in response stated that the appellant’s response was embedded in the reply brief filed on 28/10/09. He adopted and relied on same. Learned counsel also adopted the appellant’s brief of argument filed on 28/5/09. Mr. Adebayo, on the other hand adopted 1st and 2nd respondents brief filed on 19/6/09.
From the seven grounds of appeal appellant distilled two issues for determination as follows:-
(1) Whether the trial Judge’s approach to the Respondents’ non-compliance with Order 8 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 1994 was correct, having regard to the special nature of the jurisdiction under the aforesaid Order 8. This issue arises from grounds 1, 2 and 6 of the Amended Notice of Appeal.
(2) Whether the trial Judge’s approach to the issue of misrepresentation was correct, having regard to the special nature of the jurisdiction under Order 8 of the High Court of Lagos State (Civil Procedure) Rules 1994. This issue arises from Grounds 3, 4, 5 and 7 of the Amended Notice of Appeal.
On the other hand the respondents also formulated two issues for determination thus:-
(i) Whether the trial Judge rightly exercised her discretion by not allowing an objection bordering on procedural irregularity to derail the hearing and determination of the Respondents’ suit,
(ii) Whether the trial court’s approach to the issues of misrepresentation raised by the Appellant was correct.
Before I proceed to resolve the issues raised in this appeal it is necessary to first resolve the preliminary objection raised by the respondents. The Notice of Preliminary objection was brought
pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2007 and under the Inherent jurisdiction of this Honourable Court. By the notice of preliminary objection respondents are asking the court to dismiss this appeal for gross incompetence. The grounds for the Notice of Preliminary Objection are as follows:-
(i) With the coming into effect of the 2004 Civil Procedure Rules, Order 8 Rule 4 of the 1994 Rules is no longer applicable to cases before the High Court of Lagos State;
(ii) The repeal of the 1994 rules and the non-inclusion of provision similar to Order 8 Rule 4 of the 1994 Rule automatically render this appeal academic.
Respondents’ submission in support of the preliminary objection was incorporated in their brief of argument. In support of the preliminary objection respondents’ counsel submits that the High Court (Civil Procedure) Rules, 1994 was repealed by the coming into effect of the 2004 Civil Procedure Rules of Lagos State. This appeal centers on complaint about alleged non-compliance with the provisions of Order 8 Rule 4 of the 2004 Rules of the Lagos High Court. Learned counsel submits that with the coming into effect of the 2004 Civil Procedure Rules, Order 8 Rule 4 of the 1994 Rules is no longer applicable to cases before the High Court of Lagos State. It was the contention of learned counsel that the noncompliance with Order 8 Rule 4 of the 1994 High Court (Civil Procedure) Rules is a jurisdictional issue as such this court can no longer consider the repealed provisions of the 1994 rules of Lagos State to determine whether the High Court had the requisite jurisdiction to entertain the respondents’ case. Reliance was placed on the case of Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt.312) 382, 474 – 475. This action has not been heard and determined at the trial court but the state of the law conferring jurisdiction has changed, Order 8 Rule 4 of the 1994 rules has been totally done away with. Learned counsel urged the court to hold that with the repeal of the 1994 rules and the failure to include provisions similar to Order 8 Rule 4 of the 1994 Rules in 2004 Rules, the appellant has lost the right to question the jurisdiction of the lower court to entertain the 1st and 2nd respondents’ case on the premise of non-compliance with Order 8 Rule 4 of the 1994 Rules.
Furthermore, respondents’ counsel contends that the repeal of the High Court of Lagos State (Civil Procedure) Rules, 1994 and the non-inclusion of provisions similar to Order 8 Rule 4 of the 1994 in the 2004 rules have removed life from this appeal. There are no longer live issues for this court to determine. In short this appeal is academic and this court not being academic institution cannot entertain an academic matter. See: A-G Federation v. ANPP (2003) 18 NWLR (Pt.851) 182 at 210-211.
The response of the appellant is contained in the reply brief filed on 28/10/09. Learned counsel argued that the 1st and 2nd respondents did not dispute that the 1994 rules were the rules in force at the time that they applied to court below for leave to serve the appellant outside jurisdiction. Respondents however contended that the requirement is jurisdictional as such it is the rule in force at the time the appeal is heard that must apply. In other words, the rules relating to service out of jurisdiction operates retrospectively. Appellant’s counsel submits that the case of Rossek v. ACB Ltd (supra) and Olutola v Unilorin (2004) 18 NWLR (Pt 905) 416 at 470 relied upon by respondents’ counsel do not support the respondents’ argument. Appellant’s counsel distinguished the two cases cited with the facts and circumstance in the matter at hand.
Appellant’s counsel argued that where the legislature has clearly expressed its intention that the new law is only to apply prospectively the contention that the law operates retrospectively is misconceived. Learned counsel referred to the provision of Order 1 rule 1 (1) of the 2004 High Court of Lagos State (Civil Procedure) Rules and submits that the rule came into force after application to serve the appellant outside jurisdiction was made.
The phrase “steps to be further taken” used in the provision is inapplicable. The step had already been taken as at 27th January 2003. He argued that the 2004 rules clearly cannot and do not apply to the 1st and 2nd respondents application for leave to serve the appellant out of jurisdiction. Appellant’s counsel further submitted that the dicta in the case of Olutola v. Unilorin relied upon by the respondents do not support their contention but rather it contradicts their arguments. It was therefore the contention of appellant’s counsel that on the authority of Olutola v. Unilorin it is the 1994 Rules, and not the 2004 Rules, that apply to the issue of service outside jurisdiction.
There is no dispute as to the fact that the High Court of Lagos State (Civil Procedure) Rules, 1994 has been repealed with the coming into effect of the High Court of Lagos State (Civil Procedure) Rules, 2004. It is also a fact that Order 8 Rule 4 of the 1994 Rules had been excluded in the 2004 Rules. The question is whether the non-inclusion of a similar provision in the 2004 Rules have removed life from this appeal as argued by respondents’ counsel. It is necessary to determine the applicability of the 2004 rules whether it operates retrospectively or prospectively. The provision of Order 1 Rule 1 (1) of the High Court of Lagos State (Civil Procedure) Rules 2004 is relevant. Order 1 Rule 1 (1) provides thus: –
“1(1) These rules shall apply to all proceedings including all part heard causes and matters in respect of steps to be taken in such causes and matter.”
Considering the words used in the order reproduced supra, I am satisfied that the words are plain enough and unambiguous. The High Court of Lagos State (Civil Procedure) Rules came into force after application to serve the appellant outside jurisdiction was made. The phrase “steps to be further taken” used in the provision is inapplicable. The step had already been taken as at 27th January 2003.
It is now settled that the duty of this court and indeed any other court, is to interpret the words contained in any statute in their ordinary and literal meaning. See: Tukur v. Government of Gongola State (1989) 9 SCNJ 1, 1989 4 NWLR (Pt 117) 517 at 547; A.G. of Bendel State v. A.G. of Federation & Ors. 1982 3 NCLR 1, 1981 10 SC 1, NNPC v. Okwor (1998) 7 NWLR (Pt.559) 637 and The Praying Band of C & S Church v. Udokwu (1991) NWLR (Pt 182) 716.
I agree with the submission of appellant’s counsel that where the legislature has clearly expressed its intention that the new law is only to apply prospectively the contention of respondent’s counsel that the law operates retrospectively is misconceived. I am therefore of the firm view that the 2004 rules cannot and do not apply to the 1st and 2nd respondents application for leave to serve the appellant out of jurisdiction. I also agree with appellant’s counsel that the dicta in the case of Olutola v. Unilorin relied upon by the respondents do not support their contention but rather it contradicts their arguments. Contrary to the submission of respondents counsel there are still live issues to be determined in this appeal. I hold that the appeal at hand is not academic. In the circumstance, I am of the firm view that the arguments in support of the preliminary objection are not sound and therefore cannot be sustained. The preliminary objection is accordingly overruled and same dismissed.
I now proceed to resolve the two issues raised by the appellant for determination in this appeal. Under issue No. 1, appellant is questioning the correctness of the trial judge’s approach to the respondents’ non-compliance with Order 8 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1994.
On the special nature of the jurisdiction under Order 8 of the High Court (Civil Procedure) Rules, 1994 appellant’s counsel contended in the brief of argument that it is widely recognized and accepted that service out of jurisdiction is an exceptional measure, and that for this reason a court should approach an application for leave to serve outside jurisdiction with circumspection. See: George Monro Ltd. v. American Cyanamid and Chemical Corporation (1994) KB 432 at 437. See also the learned authors of Halsbury’s Laws of England, 4th Edition Reissue Lexis Nexis UK, 2003, wherein the position of the law regarding service outside jurisdiction was stated. Appellant’s counsel submitted that a court ought not to treat the application for leave to serve outside jurisdiction as a mere “formality” or as a mere “technicality.”
That an applicant for leave must comply strictly with the requirements of the rules as to the manner establishing the various factors that court must take into consideration in deciding upon such an application. Reference was made to Order 8 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1994 to stress the effect of the non-compliance. It was further contended that despite the finding by the learned trial judge that the applicant did not comply with the provision of Order 8 Rule 4, he proceeded to hold that the non-compliance was a mere irregularity which was saved by Order 5 Rule (1) (1) of the High Court Rules. That the learned trial judge exercised his discretion wrongly in holding that the acknowledged non-compliance was the type of irregularity that could be saved under Order 5 Rule 1 (1) of the High Court Rules.
That it was within the discretion of the learned trial judge under Order 5 Rule 1 (2) to either set aside the service or to allow the service. Appellant’s counsel argued that this is a proper case for this court to interfere with the exercise of discretion by the lower court since the discretion has been exercised on erroneous grounds and irrelevant factors were also taken into consideration. Reliance was placed on the cases of Oyekanmi v. NEPA (2000) 15 NWLR (Pt 690) 414 at 438 – 439, Adejumo v. State (2006) 9 NWLR (Pt.986)627 at 643, Onyali v. Okpala (2001) 1 NWLR (Pt.694) 282 at 303 and Opeyemi v. Irewole Local Government (1993) 1 NWLR (Pt 270) 462 at 475.
On the contention that the trial judge exercised his discretion on erroneous principles particularly that the writ of summons and statement of claim could not have qualified for “other evidence” on the ground that pleadings are not evidence, respondents submitted that while initiating this case they filed at the same time, a writ of summons, a statement of claim and a motion exparte.
The statement of claim and the writ of summons contain the relief and all other facts on which the respondents ought to rely on through out the subsistence of the case. These facts were placed before the court for appraisal and they were considered before the application was granted. Respondents also submitted that the appellant completely misunderstood the reason the learned trial judge relied on the respondents’ originating process to determine that the respondents’ claim disclosed a good cause of action. It is now trite that courts limit themselves or are enjoined to limit themselves to the writ of summons and statement of claim in order to determine that there exists a cause of action and no other. See: Cookey v. Fombo (2005) 15 NWLR (Pt 947) 182, Rinco Const. Co. v. Veepee Ind. Ltd. (2005) 9 NWLR (Pt 929) 85 at 99 and Bamgbade v. Balogun (1994) 1 NWLR (Pt 323) 718.
Respondents contended that the statement of claim qualifies for “other evidence” and a trial High Court could look at same in determining whether respondents’ case disclose a cause of action. Respondents urged the court to hold that the trial judge was right when he limited himself to the respondent’s writ of summons and statement of claim to determine that the respondents’ case disclosed cause of action. It was further contended that the learned trial judge rightly exercised his discretion when he held that alleged failure of the respondents to comply with Order 8 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1994 is at best an irregularity which, shall not nullify the proceedings or any step taken if and when the court finds that there had been failure to comply with the rules as alleged. That the non-compliance was not substantial to nullify the steps already taken by the respondents.
That the trend now is to do substantial justice as enjoined by the Supreme Court in Nishizawz Ltd. v. Strich and Jetwani (1984) 1 SC 234 at 285 – 286. That in the exercise of discretion no case can be authority for another as that will indeed be putting an end to discretion. See: Senate President v. Nzeribe (2004) 9 NWLR (Pt.878)251 at 273.
In the reply brief appellant’s counsel relied on several foreign authorities and contended that commonwealth countries generally hold claimants to strict compliance with the requirements of the rule as such there is no reason why Nigeria should relax its own application of the principle in relation to other countries.
Appellant’s counsel maintained that an applicant for leave to serve outside jurisdiction is held to a certain standard of proof which is not met by merely alleging a cause of action in its pleading. Some form of evidence (affidavit or otherwise) is required to verify the cause of action. That the requirements of Order 8 Rule 4 of the 1994 Rules are not merely technical and do not amount to a mere formality which can be lightly disregarded by the court.
In resolving issue No. 1, I find it necessary to reproduce the provision of Order 8 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1994, hereunder for clarity and emphasis.
Order 8 Rule 4 provides: –
” Every application for leave to serve such writ or notice on a defendant out of Nigeria shall be supported by affidavit or other evidence stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is a commonwealth citizen or not and the grounds upon which the application is made; and no such leave shall be granted unless it shall be made sufficiently to appear to the court or a judge in chambers that the case is a proper case for service out of Nigeria under this order.”
Under this order the affidavit in support of the application for leave is required to state the following facts: –
(a) The belief of the deponent that the plaintiff has a good cause of action.
(b) The place or country where the defendant may be found.
(c) Whether the defendant is a commonwealth citizen or not.
The grounds upon which the application is made must be stated on the application. These are the factors that should guide the court in determining whether the case is a proper one for service out of Nigeria.
The learned trial judge examined the affidavit in support of the motion exparte and conceded that applicant now respondent did not comply with the provisions of Order 8 Rule 4 under consideration. The learned trial judge however, interpreted the phrase “or other evidence” referred to in Order 8 Rule 4 reproduced (supra) to include the writ of summons and statement of claim already before the court and so he granted the application on the ground that plaintiff/respondent has a good cause of action.
The learned trial judge therefore refused to set aside the earlier order made granting leave to the respondent to serve writ of summons out of jurisdiction.
The question is whether the learned trial judge exercised the discretion on erroneous principles. A grant or refusal of an application is purely within the province of the discretionary powers of the trial court. Such discretion must at all times however be exercised not only judicially but also judiciously on sufficient materials. See: Udansi v. Odusote (2003) 6 NWLR (Pt.817) 545; Ogbuehi v. Governor Imo State (1995) 9 NELR (Pt.417) 53, University of Lagos v. Aigoro (1985) 1 NWLR (Pt 1) 143.
The law is clear that a discretion properly exercised by a trial or lower court will not be lightly interfered with by an appellate court even if the appellate court was of the view that it might have exercised the discretion differently. See: Williams v. Williams (1987) 2 NWLR (Pt.54) 66, Saraki v. Kotoye (1990) NWLR (Pt.143) 144 at 171; Ngwu v. Onuigho (1999) 13 NWR (Pt.636) 512 at 524 – 525; Oyekanmi v. NEPA (2000) 15 NWLR (Pt.690) 414 at 438 – 439 and Adejumo v. State (2006) 9 NWLR (Pt 986) 627.
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 an appellate court will not abdicate its duty to interfere with the exercise of that discretion in order to correct or prevent the injustice. See: Solanke v. Ajibola (1968) NSCC (vol.7)231 of 235.
Having regard to the facts and circumstances of this case, I am of the firm view that the approach taken by the learned trial judge is not erroneous and cannot also be faulted. As at the time the respondent brought the application seeking for leave to serve writ out of jurisdiction, all that was contained in the case file were the writ of summons dated 18/11/02 and the statement of claim dated 31/10/02. The learned trial judge found that the affidavit in support of the ex-parte application did not disclose sufficient materials to enable the court decide whether a prima facie cause of action against the defendant has been shown so as to call upon the defendant/appellant to come and answer to the claim. In the alternative the trial judge invoked the second arm of the provisions of Order 8 Rule 4 i.e. “or other evidence”, and looked at the writ of summons and statement of claim thereby arriving at the conclusion that a good arguable case has been disclosed against the defendant/appellant. It was for this reason that the trial court granted leave to the respondent to serve the writ of summons outside Nigeria. Order 8 Rule 4 did not specify the nature of the evidence to be relied upon but what is certain is the fact that the use of the word ‘or’ gives the court the discretion to either rely solely on the affidavit or “other evidence” to determine whether the facts or materials available disclosed good arguable case against the defendant/appellant. This was precisely what the learned trial judge did. He had this to say at page 92 of the record thus: –
“I agree with the submission of learned counsel to the plaintiff that at the time the application for leave was made, the writ of summons and statement of claim setting out the particulars of the plaintiffs claim were before the court and that the court was entitle to consider them before granting the order. By virtue of Order 8 Rule 4 the application for leave shall be supported “by affidavit or other evidence stating that in the belief of the deponent the plaintiff has a good cause of action.”
(Emphasis mine). I am of the view that “or other evidence” referred to herein would include the writ of summons and statement of claim already before the court.”
Appellant’s counsel correctly stated the position of the law relying on the authorities cited (supra) that pleadings are not evidence. It is also correct to say that pleadings are mere averments and evidence are required to substantiate facts pleaded. However, in determining whether a cause of action is disclosed the court must limit itself to the plaintiffs pleadings. Plaintiffs pleadings are the writ of summons and statement of claim. See: Rinco v. Const. v. Veepee Ind. Ltd. (2005) 9 NWLR (Pt 929) 85 at 99 SC and Cookey v. Fombo (2005) 15 NWLR (Pt 947) 192 at 202. A cause of action is every fact, which is material to be proved to entitle the plaintiff to succeed, or all those things necessary to give a right to relief in law or equity. The evidence required to substantiate the pleadings was not the issue when the application for leave was made but whether the facts available in the court file discloses reasonable cause of action to entitle the court grant the application to serve the defendant/appellant outside Nigeria with the writ of summons. It is therefore not correct to say that the learned trial judge exercised the discretion on erroneous principles.
Appellant had also contended that the learned trial judge failed to take relevant matters into consideration in deciding not to set aside the service on the foreign defendant out of the jurisdiction. Having regard to the reasons given by the trial judge as to why he refused to set aside the order made, it cannot be said that the trial judge did not take into consideration the special nature of the jurisdiction to allow service of court processes on foreign defendants. As earlier stated the requirement was satisfied because the statement of claim disclosed good arguable case against the defendant/appellant. In short the court relied on both the affidavit and the “other evidence” referred to under Order 8 Rule 4. I have had the opportunity of reading all the foreign authorities cited by appellant’s counsel. I want to note in particular the case of Leal v. Dunlop Bio Processes Ltd. (1984) 2 All E R, 207. Order 11 of the English Rules is similar to Order 8 of the High Court of Lagos State (Civil Procedure) Rules, 1994 but not on all fours as contended by appellant’s counsel. I have noted that the use of the words “or other evidence” contained under Order 8 Rule 4 is not part of Order 11 of the English Rules.” Furthermore, in that case the writ was served outside jurisdiction without first obtaining leave. The question was whether the court has the power to validate the service on Dunlop retroactively and whether noncompliance with Order 11 can be cured under Order 2 Rule 1 (2) of the English Rules which is similar to Order 5 of the High Court of Lagos State (Civil Procedure) Rules, 1994. The English Court of Appeal held that having regard to the special nature of the jurisdiction to allow service of process on a foreign defendant, it is a wrong exercise of discretion to treat lightly any non-compliance with the rules regulating such service. It has to be borne in mind that every case has to be treated according to its given set of facts and circumstances. I am satisfied that the learned trial judge took into consideration all relevant matters before refusing to set aside the order granting leave to serve the writ of summons and statement of claim outside jurisdiction. I hold that the learned trial judge exercised his discretion judicially and judiciously having regard to the circumstances of the case. There is no basis for this court to interfere with the lower court’s exercise of discretion. I will accordingly resolve issue 1 in favour of the respondent. Issue I fails and is dismissed.
Issue No. 2
The contention of appellant’s counsel was that the findings of the learned trial judge that there was no misrepresentation because the facts said to be misrepresented were not contained in an affidavit and that the allegation of misrepresentation had not been established are erroneous. It was argued that the trial judge erred in law when he held that the plaintiff had not misrepresented any facts to the court in its ex-parte application for leave on the ground that “the averments in the affidavit in support of the application for leave do not contain any depositions in respect of the plaintiffs cause of action. It can therefore not be said that there was a mis-presentation or suppression of facts in the said affidavit. Appellant’s counsel submitted that since the learned trial Judge accepted the writ of summons and statement of claim as “other evidence”, it was therefore contradictory for him to then hold that the averments in the statement of claim cannot be challenged on grounds of misrepresentation. Appellant’s counsel referred to various misrepresentations reflected in the 12 paragraphs affidavit
filed in support of the application made by appellant to set aside the order granting Leave to serve writ of summons outside jurisdiction. The facts alleged to have been misrepresented includes: (a) the existence of an exclusive agency agreement between plaintiff/respondent and defendant/appellant, (b) the alleged commission of 16% and (c) the alleged supply of broadcasting equipment to the Nigerian Television Authority by the defendant/appellant.
Respondents’ counsel on the other hand submitted that the various alleged misrepresentations cannot be resolved at this stage as doing so would tantamount to venturing into the substantive suit at the interlocutory stage. Learned counsel referred to paragraphs 5 and 11 of the affidavit in support of the appellant’s motion dated 12th September, 2003. Learned counsel argued that since appellant has disputed the facts averred to by plaintiff/respondent in the statement of claim, the conflicts could only be resolved at the trial stage. The purpose of order 8 rule 4 is to prevent frivolous actions.
In this case both the statement of claim and motion for substituted service have confirmed that the Respondents herein have shown that they have a good cause of action.
The complaint of the appellant is that respondents misrepresented/suppressed facts in their affidavit in support of the motion exparte filed seeking for leave to serve the writ of summons out of jurisdiction. As earlier stated under issue 1, the trial Judge relied on the statement of claim to determine whether there was good arguable case against the appellant to entitle the court grant the leave to serve the writ of summons outside jurisdiction, because the affidavit in support of the motion -exparte did not contain sufficient materials. All the facts relating to the contract agreement are contained in the statement of claim.
Having regard to the nature of the misrepresentations raised by the appellant if same are resolved at this stage it would greatly affect the substantive suit. Whether respondents would succeed in proving their claim against the appellant is not relevant at this stage. Court’s are enjoined not to resolve issues meant for substantive suit at interlocutory stage. The Supreme Court in a myriad of decisions followed by this court have consistently held that issues to be determined in a substantive appeal should not unwittingly be decided at interlocutory stage. See: NDIC v. S.B.N. Plc. (2003) 1 NWLR (Pt 801) 371; Iweka v. SCOA (Nig) Ltd. (2000) 7 NWLR (Pt 664) 325 at 338 and Ola v. Williams (2003) 5 NWLR (Pt 812) 48 at 66 paragraphs E – F. As rightly observed by the learned trial judge looking at the averments contained in the statement of claim and the facts deposed to in the affidavit filed by the appellant, it would be appropriate to say that the averments reflects appellant’s statement of defence. I am mindful of the fact that an order granting leave to serve writ of summons out of jurisdiction can be set aside on ground of misrepresentation of facts in appropriate cases. See Order 9 rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1994.
In the instant case the alleged misrepresentations (if any) cannot be easily resolved at this stage without interfering with the substantive matter. Every case must therefore be treated according to its given set of facts and circumstances. It is my considered view that the learned trial judge rightly declined to set aside the order made granting the respondent leave to serve the writ of summons outside Nigeria. In the circumstance, I hold that issue No. 2 fails and is similarly dismissed.
In the final analysis, this appeal in my humble view is devoid of merit. Appeal dismissed. I affirm the decision of the trial court dated 31st March, 2004. Parties to bear own costs.
RAPHAEL CHIKWE AGBO, J.C.A: I have read in draft the very well articulated and detailed judgment just delivered by Mshelia, J.C.A. and I agree completely with her. There is complete want of merit in this appeal and I also dismiss it.
ADAMU JAURO, J.C.A: I have been afforded an opportunity of reading in advance the leading judgment of my learned brother, Mshelia JCA. I agree with his line of reasoning and the conclusions expressed in it. I am also of the view that the appeal is lacking in seriousness and merit.
I join my brother in affirming the decision of the trial court dated 31st March, 2004. The appeal is hereby dismissed.
There will be no order as to costs.
Appearances
A. A. Adegbonmire, with O. Aluko Esq.For Appellant
AND
Temitope Adebayo esq.For Respondent
