MEDOUSA MARITIME & ANOR v. JOSEPDAM & SONS (NIGERIA) LIMITED
(2014)LCN/7073(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of March, 2014
CA/L/714/2008
RATIO
WHETHER A GROUND OF APPEAL MUST BE DEDUCED FROM THE DECISION APPEALED AGAINST
It is trite law that a ground of appeal must relate to the decision or judgment appealed against. Thus, a ground of appeal will be devoid of competence if it is not related to or connected with any issue decided by the court and is liable to be struck out. See LABATI V. FAROMIPIN (2011) 12 NWLR (PT 1239) 609, KABIRU V. IBRAHIM (2004) 2 NWLR (PT 857) 326; ADUKU V. FRN (2009) 9 NWLR (PT 1146) 370 OBUMSELI V. UWAKWE (2009) 8 NWLR (PT 1142) 55 and AKIBU V. ODUTAN (2000) 13 NWLR (PT 685) 446. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
MEDOUSA MARITIME
(OWNERS OF MV “MEDOUSA”) & ANOR Appellant(s)
AND
JOSEPDAM & SONS (NIG) LIMITED Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): By a motion exparte dated 8-12-2006 the Respondent had as plaintiff in the lower court sought the following reliefs:-
“(a) An Order granting Leave of this Honourable Court to issue Writ of Summons for service on Defendant outside jurisdiction and deeming the Writ already issued as properly issued.
(b) Leave for substituted service of the Writ of Summons together with all other court processes on the Defendant at their last known addresses at:
i) MEDOUSA MARITIME
83, G. LYRA Street
ATHENS, Greece
ii) American Steamship Owner
P & 1 Association,
New London House
6 London Street, London EC3R 7LP
United Kingdom
(c) An order granting leave of this Honourable Court for the Writ of Summons together with all other court processes to be served by substituted addresses and the evidence of delivery from Nipost – EMS Courier services to be filed in court and same to be deemed as proper and good service and for such order or further orders as to this Honourable Court may appear just to make in the circumstances.
The application is supported by 6 paragraph affidavit and attached to the said application are two exhibits.
Exhibit DS1 is a copy of an unsigned writ of summons together with the statement of claim. Exhibit DS2 is a copy of shipping date register.
The said motion Exparte was then fixed for hearing on the 16-1-2007.
On the said date the motion moved by the plaintiff’s (now Respondents) counsel was granted as prayed as follows:-
(A) That leave is granted to the Plaintiff/Applicant to issue writ of summons for service on the defendant outside jurisdiction and deemed the already issued as properly issued.”
(B) That leave is granted to serve the writ of summons together with all other court processes on the defendant by substituted means to wit: – at the last known addresses at-
(i) Medousa Maritime
83, G Lyra Street
Athens, Greece.
(ii) American Steamship owner
P & 1 Association
New London Street London EC3RTLP
United Kingdom.
(c) That the plaintiff/applicant is granted leave to serve the writ of summons together with all other court processes by substituted means to wit by delivery (sic). Same through NIPOST EMS Courier services to the Defendant at the said addresses and the evidence of delivery from NIPOST – EMS Courier services to be filed in court and same to be deemed as Proper and good service.
(D) The matter stands adjourned to 19th day of March, 2007 for report of service.
However by a motion on notice dated the 19th April, 2007 the defendants (now Appellants) then sought for an order “striking out and/or setting aside the writ of summons served in the suit.
The Grounds for the application are that:-
“(a) The action is one “in personam” against the Defendants who are ordinarily resident outside the jurisdiction of this Honourable court, a fact the plaintiff knew or ordinarily ought to know.
(b) No leave was sought and/or obtained prior to the issue of the writ herein.”
The application is supported by an 8 paragraph affidavit. There is also a further and better affidavit of 8 paragraphs sworn to by one Joseph Olawuyi.
The Respondent also reacted by filing a counter affidavit of 11 paragraphs sworn to by Emmanuel Akpan. Two documents were attached to it as Exhibits DS1 and DS2. After listening to submission by counsel for the parties on 4-6-2007 and 12-6-2007 the learned trial judge in a considered ruling delivered 10-7-2007 held inter alia as follows:-
“Besides the above consideration, application for leave was filed simultaneously with the writ of summons. Leave was granted much later because the motion was not heard timeously which situation was totally outside the control of the plaintiff making the application.
When the order was made, it deemed the filing and service of the writ outside jurisdiction to have been properly done. In my view, this is substantial compliance.
Having thus said so far, it is my view that service of the writ on the defendant in this case the way it was done was proper and the issuance of it competent. I hold that this motion is not sustainable and it is therefore dismissed.
Aggrieved with the said Ruling of the lower court, the Appellants then filed a Notice of Appeal dated 17-7-2008 but filed on 22-7-2008. It contains five grounds of appeal which shorn of their particulars reads as follows:-
GROUND 1
The learned Trial judge erred in law in refusing to strike out or set-aside the writ of summons when it was clear to the said judge that no leave of court was sought and/or obtained prior to the issuance of the said Writ on the Appellants who are ordinarily resident outside jurisdiction.
GROUND 2
The learned trial judge erred in law when he held that the Respondent had substantially complied with the provisions of the law regarding the obtaining of leave to issue and serve the writ meant for service outside of jurisdiction.
GROUND 3
The learned trial judge erred in law when he held that the Sheriffs and Civil Process Act, CAP S6, Laws of the Federation of Nigeria 2004, was not made applicable to the Federal High Court.
GROUND 4
The learned trial judge erred in law when he held that by virtue of the provisions of Order 6 Rule 12 of the Federal High Court Civil Procedure Rules 2000 and Order V Rule 12(b) of the Admiralty Jurisdiction Procedure Rules 1993 leave of Court was not required before the issuance of the Writ in this case.
GROUND 5
The learned trial judge erred in law when he held that by virtue of the provisions of Order 6 Rule 12 of the Federal High Court Civil procedure Rules 2000 leave was not required to issue the writ.
Briefs of argument were subsequently filed and served by the parties in compliance with the Rules of this court.
The appellant’s brief of argument dated 7/10/2008 and filed on 10-10-2008 was settled by Toheeb Ipaye Esq. The Appellants reply brief dated 1-12-2010 and filed on 9-12-2010 but deemed properly filed on 22-2-11 was settled by Emeka Umunnakwe Esq.
The Respondent’s brief of argument settled by David Angya Esq. is dated and filed on 5-2-2010 but deemed properly filed and served on 4-11-2013.
In the Appellants’ brief of argument, four issues were distilled for determination as follows:-
(1) Whether the failure by the Respondent to obtain leave prior to the issuance of the writ of summons robs the court of jurisdiction to determine the case.
(2) Whether failure to obtain leave before issuing a writ of summons out of jurisdiction can amount to substantial compliance with the requirement of the law regarding issuance and service of writ outside of jurisdiction.
(3) Whether the Sheriffs and Civil Process Act CAP S6 Laws of the Federation of Nigeria 2004 is made applicable to the Federal High Court.
(4) Whether Order 5 Rule 12 of the Federal High Court (Civil Procedure) Rules 2000 and Order V Rule 12(b) of the Admiralty jurisdiction Procedure Rules 1993 exempt the Respondent from the requirement of obtaining leave of court before the issuance of the writ of summons on the Appellants who are outside of jurisdiction.”
In the Respondent’s brief of argument two issues were formulated for determination to wit:-
(1) Whether or not Respondent obtained leave of court to issue and serve writ of summons outside the jurisdiction in accordance with relevant laws.
(2) Whether or not by the combined provisions of Order V Rule 12 Admiralty Jurisdiction Procedure Rules 1993, Order 6 Rule (12) (2) and Rule 13 Federal High Court Civil Procedure) Rules 2000 the writ of summons was duly issued at the lower court for service outside jurisdiction.
However, before I proceed to consider the appeal proper, I observe that the Respondent filed a notice of preliminary objection challenging grounds 3, 4 and 5 of the grounds of Appeal as not arising from the Ruling of the lower court. However there is no record of the fact that the Respondent moved or sought leave of the court to move the Notice of preliminary. Rather, at the hearing of the appeal on 4-2-2014, both parties and particularly the Respondents counsel simply identified and adopted the Respondents brief of argument.
The law is that where there is a preliminary objection either in the Respondent’s brief, by a formal separate notice or written objection or both there is need for the respondent or his counsel with the leave of the court to move the objection before the hearing of the substantive appeal. In the instant case, it is unfortunate that learned counsel for the respondent never sought for leave to move the preliminary objection either did he say a word about it before or during the hearing of the appeal and the resultant effect is that it is therefore deemed abandoned. See TIZA v. BEGHA (2005) ALL FWLR (PT 272) 200; OKOLO v. UBN LTD (1998) 2 NWLR (PT 539) 618; MAGIT V. UNIVERSITY OF AGRICULTURE MAKURDI (2006) ALL FWLR (PT 298) 1313 at 1329. AJIDE V. KELANI (1985) 3 NWLR (PT 12) 248.
I have also opted to consider this appeal on the basis of the four issues formulated in the appellants brief given the fact that the Respondents two issues are similar to the appellant’s issues 1 and 4.
ISSUE 1
Dwelling on this issue, learned counsel for the appellants referred to MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 at 594; SKEN CONSULT (NIG) LTD V. UKEY (1981) 1 SC.6 at 26 and NWABUEZE V. OKOYE (1988) 4 NWLR (PT 91) 164 at 684 to posit that the jurisdiction of a court to determine a case is dependent on the courts competence and listed the three conditions to be satisfied before a court can be said to be competent to entertain a suit, failure of which such trial will be a nullity.
Learned counsel referred to Order 6 Rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000 which provides that:
“No writ which or notice which is to be served out of the jurisdiction shall be issued without leave of the court”
He submitted that by virtue of the said provision the respondent is required to obtain leave of court before the writ in this suit is issued but that at the time the writ was issued on 8-12-2006 no leave had been granted and which leave was only granted on 16-1-2007. He referred to NWABUEZE V. OKOYE supra where it was held that:-
“As I have said, the issue of writ of summons and the service of the same writ on the defendant are conditions precedent for the exercise of the court’s jurisdiction over the defendant.”
Added to it is the case of OWNERS OF M.V. “ARABELLA” v. NIGERIAN AGRICULTURAL INSURANCE CORPORATION (2008) 11 BWKR (PT 1079) 182.
Learned counsel further submitted that based on the authorities cited, the necessity to obtain leave before the issuance of a writ of summons outside jurisdiction required by the Federal High Court Rules is a condition precedent to the courts exercise of jurisdiction and failure of the Respondent to fulfil that condition precedent creates a defect in the competence of the court.
ISSUE TWO
Herein, learned counsel submitted that failure to obtain leave before issuing a writ of summons for service out of jurisdiction is not a mere irregularity but a fundamental defect which goes to the question of the competence and jurisdiction of the court and which defect cannot be waived vide CARIBREAN TRADING FIDELITY CORP. v. N.N.P.C. (1992) 7 NWLR (PT 252) 161 at 180.
He add therefore that the use of the principle of substantial compliance by the learned trial judge was to make the requirement of obtaining leave before the issuance of the writ unnecessary and create a situation of waiver. Therefore, the principle of substantial compliance is not applicable in this case as any defect in competence is a fundamental defect.
ISSUE THREE
Dwelling on this issue, learned counsel submitted that the finding of the judge to the effect that by virtue of the interpretation section, the Sheriff and Civil Process Act is not applicable to the Federal High Court is in direct conflict with the Supreme Court decision in OWNERS OF THE M.V. ARABELLA V. NIGERIA AGRICULTURAL INSURANCE CORPORATION wherein the court held that:-
“The provisions of the Act (Sheriffs and Civil Process Act guide the service of processes of the Federal High Court as a court established by the National Assembly.”
He added that, by the pronouncement of the Supreme Court, the Sheriffs and Civil Process Act CAP 56 of the Laws of the Federation of Nigeria 2004 is made applicable to the Federal High Court as a Court established by the National Assembly and as such it is applicable in the instant case.
ISSUE FOUR
It was the further submission of learned counsel that the learned trial judge erred when he held in his Ruling at page 58 of the Record that:-
“the combined effect of Order V. Rule 12 of the Admiralty Jurisdiction Procedure Rules 1993 and Order 6 Rule 12(2) of this Court’s Rules is that leave of the court before issuance of a writ of summons is not a sine qua non in respect of matters such as the one under consideration here.”
This he says, means that by the reckoning of the learned trial judge, Order 6 Rule 12(2) of the Federal High Court Rules provides an exception to the requirement of obtaining leave prior to the issuance of a writ in the sense that where an enactment such as the Admiralty Jurisdiction Procedure Rules 1993, Order V Rule 12 has given power to the court “to hear and determine” any claim made by a writ, notwithstanding the fact that the defendant is outside the jurisdiction of the court, leave to issue writ will not be required.
He argued however that the two Rules regulated only the service of processes and does not purport to regulate the issuance of originating processes and furthermore, Order V. Rule 12(b) only applies in cases where the action has already been filed.
He added that Order V Rule 12 does not envisage the service of a writ that was invalidly issued because such a writ even though served would remain inherently defective notwithstanding the proper service. He noted further that the exception as stated in Order 6 Rule 12(2) and applied by the learned trial judge is dependent on the existence of specific enactment giving the court powers “to hear and determine” certain claims which the instant case allegedly falls under. He then urged this court to resolve the issues in favour of the Appellants.
Responding on their own issue one, learned counsel for the Respondent submitted that the argument proffered by the appellants together with the authorities relied on in so far as they relate to the failure of a party to obtain leave before issuance of writ should be discountenanced because they do not arise from the decision of the lower court.
According to the learned counsel, the Respondent filed a motion exparte dated 8th December, 2006 for leave to issue writ and attached to the motion exparte was the proposed writ of summons and statement of claim. In paragraph 2 (a) of the affidavit in support, it was deposed:-
“That the plaintiff by its proposed statement of claim dated 8th December, 2006 is claiming as against the defendant herein …”
On 8th December, 2006 when the motion exparte was filed, the “Proposed” writ and statement of claim was dated same day and filed in court and there is a prayer in the motion for an order for leave to issue writ of summons for service on the Defendant outside jurisdiction and deeming the writ as properly issued and served. But for administrative reasons the motion was not fixed for hearing till 16-1-2007 when it was taken and granted by the trial judge.
Learned counsel therefore submitted that the incident of issuance and service of the writ of summons and all originating processes is the primary duty and function of the lower court, registry and moreso, order 6 Rule 13 of the Federal High Court Rules 2000 provides that:-
“Issue of a writ takes place upon its being signed by a judge in chamber”.
Therefore, he argues, even though the motion exparte for leave together with the writ of summons were filed on 8-12-2006, the writ in this matter was not issued until 16-1-2007 when the trial judge granted the leave as prayed.
He urged this court to hold that the Writ of summons in this matter was properly filed and issued for service on the defendant outside jurisdiction on the 16-1-2007 when it was signed by the trial judge along with the order for leave.
Furthermore, he submitted that the originating processes were not served on the defendant until the order to issue was made and the certified copy of the order was served along with other processes on or about 10th March, 2007.
On the Respondent’s issue two, it was submitted that by the combined effect of Order V Rule 12 of the Admiralty Jurisdiction Procedure Rules 1993, Order 6 Rule 12(1) & (2) and Order 6 Rule 13 of the Federal High Court (Civil Procedure) Rules 2000. The respondent complied substantially with the requirement of the law with regard to the grant of leave to issue and serve writ of summons outside jurisdiction. He referred to the Ruling of the trial court in this regard at pages 58 to 59 of the Record which he contends is in line with the powers conferred on it by the Admiralty Jurisdiction Act and the Admiralty Jurisdiction Procedure Rules 1993 as well as Order 6 Rule 12(2) of the Federal High Court Rules 2000.
Learned counsel also argued that Ground 3 of the Notice of Appeal and issue No 3 formulated therefrom did not arise from the Ruling of the lower court and constitutes a mere academic issue citing OKOTIE EBOH V. MANAGER (2004) 18 NWLR (PT 905) 242.
On the applicability of Section 97 and 99 of the Sheriff and Civil Process Act, learned counsel submitted that the two sections does not deal with the procedure for application for leave to issue a writ for service outside jurisdiction and this was the reasoning of the learned trial in his ruling at page 57 of the record which equally was made as an obiter dictum and does not constitute the ratio decidendi.
He noted that the cases referred to at the lower court by the appellants are clearly distinguishable from the facts of this case thus the learned trial judge rightly distinguished the authorities and came to the conclusion that Section 97 and 99 of the Sheriff and Civil Process Act as well as Order 6 Rule 12 and Order V Rule 12 (B) did not in any way adversely affect the validity of the process of issuance of the writ of summons.
He also urged this court to discountenance grounds 3, 4 and 5 of the Notice of Appeal together with issues 3 and 4 formulated therefrom because they did not arise from the ruling given the fact that the only issue for determination was whether the Respondent obtained leave to issue writ for service outside jurisdiction.
In their reply brief of argument the appellants’ counsel submitted that Grounds 3, 4 and 5 of the Notice of Appeal are competent because they arose from the decision of the lower court as can be found at pages 57 to 58 of the record.
On the Respondent’s issue No 2, learned counsel submitted that the Respondent did not obtain leave of court to issue and serve writ of summons outside jurisdiction in accordance with Order 6 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules 2000 because by filing the motion exparte on 8/12/2006 the Respondent was aware that it had not complied with the Rules of court regarding obtaining leave before issuing writ of summons.
He also cited DREXEL ENERGY AND NATURAL RESOURCES LTD V. TRANS INTERNATIONAL BANK LTD (2008) 18 NWLR (PT 1119) 388 to submit that the effect of non compliance with preconditions for initiating a legal process is that the writ is incompetent and a court lacks jurisdiction to entertain same.
Thus at the time the lower court made the order deeming the already issued writ of summons as properly issued, it had no jurisdiction to make such order.
The whole argument herein borders mainly on whether or not the Respondent complied with the relevant statutes and Rules of court regarding the issuance and service of writ of summons outside jurisdiction. I will however deal first with the competence of grounds 3, 4 and 5 of the Notice of appeal. The contention of the Respondent is that they are incompetent because they do not relate with the decision of the trial court. It is trite law that a ground of appeal must relate to the decision or judgment appealed against. Thus, a ground of appeal will be devoid of competence if it is not related to or connected with any issue decided by the court and is liable to be struck out. See LABATI V. FAROMIPIN (2011) 12 NWLR (PT 1239) 609, KABIRU V. IBRAHIM (2004) 2 NWLR (PT 857) 326; ADUKU V. FRN (2009) 9 NWLR (PT 1146) 370 OBUMSELI V. UWAKWE (2009) 8 NWLR (PT 1142) 55 and AKIBU V. ODUTAN (2000) 13 NWLR (PT 685) 446.
However, I have read through the grounds of appeal at pages 60 to 52 of the Record, and which I had earlier reproduced in this judgment. I have also read the Ruling of the lower court and my finding is that all the grounds of appeal including ground 3, 4 and 5 relate or stem from the Ruling appealed against. I therefore find no basis to declare the said grounds of appeal incompetent and the same goes with the issues formulated therefrom.
Now Order 6 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules 2000 provides that:-
“No writ which, or notice of which is to be served out of jurisdiction shall be issued without leave of the court”.
The Respondents motion exparte is dated and filed on 8-12-2006 and the first prayer is for:-
“An order granting leave of this Honourable court to issue writ of summons for service on Defendant outside jurisdiction and deeming the writ already issued as properly issued.
The said relief was granted as prayed amongst others by the trial judge on the 16-1-2007 wherein it was ordered as follows:-
“(A) That leave is granted to the Plaintiff/Applicant to issue writ of summons for service on Defendant outside jurisdiction and deemed the already issued as properly issued.
(B) The leave is granted to serve the writ of summons together with all other court processes on the Defendant by substituted means to wit at the last known addresses at
(i) Medousa Maritime
89, G. Lyra Street
Athens, Greece
(ii) American Steamship Owner
P & 1 Association
New London House
6 London Street, London EC3R7LP
United Kingdom
(C) That the Plaintiff/Applicant is granted leave to serve the writ of summons together with all other court processes by substituted means to wit; by delivery (sic) same through Nipost EMS Courier Services to the Defendants, at the said addresses and the evidence of delivery from Nipost- EMS Courier Services to be filed in court and same to be deemed proper and good service.
(D) the matter stands adjourned to the 19th day of March, 2007 for Report of Service.”
Records show that the said writ of summons issued vide the order of the trial court on 16/1/2007 was served on the Appellants through Nipost-EMS Courier on 10-3-2007 as shown in page 37 to 40 of the Record.
The Appellants are not Contesting or challenging the fact that they were not served with the writ of summons and other processes as ordered by the trial court.
Their contention is that “No leave of court was sought and/or obtained prior to the issue of the writ herein” there the said writ of summons should be struck out because it was not issued in compliance with Order 6 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules 2000.
The said Order 6 Rule 12(1) provides that no writ which or notice of which, is to be served out of jurisdiction shall be issued without leave of the court.
Interestingly, Order 6 Rule 13 provides that:-
“issue of a writ takes place upon its being signed by a judge in chamber”.
For purpose of elucidation, the marginal note to the said Order 6 Rule 13 clearly stated thus:-
“issue” when effected.”
In my humble view the clear and unambiguous meaning to be read into Rule 13 is that a writ can only issue upon it being signed by a judge in chambers. In other words, any writ issued without it being signed by a judge is incompetent.
That is however not the challenge we are faced with in this appeal. The little story behind the scenario here is that the Respondent in a motion exparte for leave to issue and serve a writ of summons outside jurisdiction attached a writ of summons to it and which it sought the court’s order to deem it as properly issued.
It must be made clear here that the respondent has not initiated the process of service or served the appellants with any writ before applying to the court to have it regularized. In fact the proper procedure was followed by applying to the court for leave to issue a writ of summons and for service outside jurisdiction. The only seeming snag was that a writ already termed “issued” (not on the face of the writ) was attached to the application and requested the court to deem it as properly issued.
However at the hearing of the application on 16-1-2007 the trial court granted the application and ordered inter alia as follows:-
“That leave is granted to the Plaintiff/Applicant to issue Writ of summons for service on Defendant outside jurisdiction and deemed the already issued as properly issued.”
As earlier noted, by virtue of Order 6 Rule 13, a writ can only issue upon being signed by the judge in chambers. The writ served on the appellants was the one issued under the signature and order of the trial judge on 16-1-2007 in compliance with Order 6 Rule 12(1) and 13 of the Federal High Court Rules 2000.
To my mind therefore, the writ of summons attached to the motion exparte dated 8-12-2006 was at best inchoate until it was regularized by the order of the trial court having regard to Order 6 Rule 13. What is more, a careful perusal of the said writ indicates that though it was paid for by the Respondent on 8/12/2006, it was not however signed by the Registrar who is the issuing officer, in other words, it remained ineffectual and useless and at the point of non-existence until it was properly endorsed by the relevant officer of the court including the final statutory signing of the said writ of summons by the judge in chambers.
Thus, even though the word “issued” was employed by the Respondent in the motion exparte and also used by the learned trial judge in his order granting leave as prayed, I see it as surplusage or misnomer that does not represent the reality on the ground and which did not constitute a breach of the provisions of the law and whatever irregularity inherent therein was properly cured by the subsequent order by the learned trial judge on 16-1-2007 given the fact that no service of the writ was effected before the application was heard and granted.
I am in agreement with the stance of the Appellants that obtaining leave before the issuance of a writ of summons outside of jurisdiction is a condition precedent to the exercise of jurisdiction by the trial court having regard to the authorities cited in support. But in the instance case, the situation is different. In the OWNER OF M.V. “ARABELLA’S” case (supra) the appellant brought an action in the undefended list against three defendants but service of the writ was effected on them without the leave of the trial court. One of the defendants then applied by a motion for the suit to be struck out for want of jurisdiction.
The Supreme Court referred to the authorities of BELLO V. NATIONAL BANK OF NIGERIA LTD (1992) 6 NWLR (PT 246) 206 and NWABUEZE VS. OBI OKOYE (1988) 4 NWLR (PT 91) 664 to hold:-
“In other words, it was held that where the defendant is outside jurisdiction, no writ for service out of jurisdiction can be issued except by leave of the court. That the issue of writs of summons and the service of the same on the defendant are conditions precedent for the exercise of a court’s jurisdiction over the defendant.”
Earlier in page 206 of the report the court also held that:-
“The appellant in his said brief of argument having conceded that no leave of court was sought and obtained for the service on the Respondent, of the writ of summons in spite of the mandatory provisions of Order 10 Rule 14 of the Federal High Court (Civil Procedure) Rules 1976. This should have been the end of the Appeal”.
Thus in “Arabella’s case, there was a valid writ of summons but the Plaintiff failed to obtain leave of court before it was served on the defendants.
As earlier noted I am not unmindful of the mandatory nature of issuance and service of writ on persons outside jurisdiction as decided by the authorities as well as Order 6 Rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000 and Section 97 of the Sheriff and Civil Process Act. But the instant case is totally different because no writ was actually issued in defiance of the provision of the Rules neither was any service of the writ effected on the appellants without the leave of the trial court. The writ and other processes remain inactive within the confines of the Court Registry until life was breathed into them by the granting of leave of the trial judge on 16-1-2007.
In this regard I therefore resolve this issue in favour of the Respondent.
On issue No 2, which is whether failure to obtain leave before issuing a writ of summons out of jurisdiction can amount to substantial compliance with the requirement of the law regarding issuance and service of writ outside of jurisdiction.
I believe strongly that my reasoning and conclusion on issue No. 1 sufficiently answers the question. But for purpose of clarity I need add that in the instant case there was no failure on the part of the Respondent to obtain leave before the issuance and service of the writ of summons on the appellants in compliance with Order 6 Rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000. Leave was duly granted for the writ to issue and for service outside jurisdiction to be effected vide an order of the trial court made on 16-1-2007.
The issue of substantial compliance emerged from the Ruling of the trial court where it was held as follows at page 59 of the Record:-
“Besides the above consideration, application for leave was filed simultaneously with the writ of summons. Leave was granted much later because the motion was not heard timeously which situation was totally outside the control of the plaintiff making the application. When the order was made, it deemed the filing and service of the writ outside jurisdiction to have been properly done. In my view, this is substantial compliance.”
To my mind, the reasoning and conclusion of the learned trial judge clearly represents the true state of affairs in the Court Registry except for the fact that there was no deeming of the service of the writ outside jurisdiction given the fact that by the order granted on 16-1-2007 what was deemed properly issued was the writ of summons filed along with the application for leave dated 8-12-2006 while leave to serve the said writ was granted on the said 16 – 1 -2007 which writ was served on the appellant vide EMS Courier Service on 10-3- 2007. Notwithstanding the slip in the Ruling the order made on 16-1-2007 is clear and unambiguous on these facts and on that basis I find no fault in the view held by the learned trial judge that “this is substantial compliance”.
Issue No. 2 is consequently resolved against the appellant.
On issue No. 3, the attack is against the holding of the learned trial judge at page 57 of the record wherein he state that:-
“Section 97 and 99 of the Sheriff and Civil Process Act Laws of the Federation 1990 (now incorporated into the compiled laws of the Federation 2004) do not deal with the issue of leave of courts to issue writ out of jurisdiction but with endorsement on the writ that the writ is for service outside the jurisdiction of the court. This is besides the fact that the said Act is not made applicable to this court by virtue of its Section 19, the interpretation section.”
The contention of the Appellants is that the decision is in conflict with that of the Supreme Court in the case of OWNER OF M.V. “ARABELLA” V. N.A.I.C. Supra.
The learned trial judge had relied on Section 19 of the Sheriff and Civil Process Act which is an interpretation section found in Part III of the Act to hold the view that the provisions of the said Act is not made applicable to the Federal High Court. Interestingly this issue of whether or not Sheriff and Civil Process Act applied to the Federal High Court has generated substantial comments for and against its applicability at some workshops and seminars, particularly in the maritime sector.
The said section 19 of the Act interprets the word “court” as follows:-
“COURT” includes the High Court of the Federal Territory Abuja or of the State.”
I do not intend and will not embark on any academic adventure to profer my view or stance on it given the fact that the Apex Court in this country has put a stamp of authority on the proper interpretation of the said section 19, with particular reference to the word “Court” in the case of OWNER OF M.V. “ARABELIA” VS. N.A.I.C. Supra where it held per Akintan JSC at page 220 to 221 of the Report as follows:
“The Sheriffs and Civil Process Act (Cap 407, Laws of the Federation of Nigeria, 1990), according to its heading, is “an Act to make provision for the appointment and duties of Sheriffs, the enforcement of Judgments and orders, and the service and execution of civil process of the courts throughout Nigeria.” In section 19(1) of the Act which is the interpretation section, “Court” is defined as “includes a High Court and a Magistrate Court.”
It is not in doubt that the provisions of the said section 97 of the Act are applicable in all High Courts, including the Federal High Court. The said provisions, in my view, have nothing to do with the coverage of the jurisdiction of the Federal High Court which is nation-wide. It is therefore a misconception to believe that the provisions of the section are in applicable to the Federal High Court because the jurisdiction of that court covers the entire nation.”
In the light of the above and without much ado I cannot but agree with the submission of the appellant counsel that by the decision of the Supreme Court, the Sheriff and Civil Process Act which is an enactment of the National Assembly is made applicable to the Federal High Court and as such is applicable to this case.
This issue is thus resolved in favour of the Appellant.
On issue No. 4, the Appellant’s complaint is focused on the Ruling of the learned trial judge wherein he held at page 58 of the Record that:-
“the combined effect of Order V Rule 12 of the Admiralty Jurisdiction Procedure Rules and Order 6(12) (2) of the Federal High Court (Civil Procedure) Rules is that leave of the court before issuance of a writ of summons is not a SINE QUA NON in respect of matters such as the one under consideration here”.
The said Order V Rule 12 reads thus:-
Where:-
(a) an action in rem is commenced against a ship or another property which has been abandoned in Nigeria; or
(b) an action in personam is filed against a defendant who does not reside in or carry on business in Nigeria through an agent;
The court may order service on such defendant or the owner of such ship or property at the address of his last known place of business by a reputable courier company operating a courier service between Nigeria and the country of the place of Business.”
Order 6 Rule 12(2) reads thus:-
If any claim made by writ is one which by virtue of an enactment the court has power to hear and determine notwithstanding that the person against whom the claim is made is not within the jurisdiction of the court or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction, the foregoing provisions shall not apply to the writ.”
In my humble view, it is glaring and I do quite agree with the Appellant’s submission that the provisions of Order V Rule 12 of the Admiralty Jurisdiction Procedure Rule does not regulate the issuance of a writ of summons but only regulates the service of processes. Indeed the Order V Rule 12 relates mainly to a situation where a ship or property in an action in rem has been abandoned in Nigeria or in the case of an action in personam the defendant is found not to reside in Nigeria or have an agent in the country.
In that case the court is given the discretion to order that court processes should be served on such ship, property or person at the last known place of business by means of a reputable courier service operating between Nigeria and the country of the place of business.
It has nothing whatsoever to do with the issuance or service of writ outside jurisdiction and in fact the Respondent utilized the provision in his prayer in the motion exparte wherein he sought for an order of substituted service on the appellants through EMS Courier Service which prayer was duly and correctly granted by the trial court. It follows therefore that the learned trial judge ought not to have used or linked it with the issue of leave to serve a writ outside jurisdiction by hiding under its provision.
On the provisions of Order 6 Rule 12 (2), the provision is quite clear to the effect that it provided for an exception to the mandatory provisions of Order 6 Rule 12(1). By virtue of sub rule (2) the requirement that No writ to be served out of the jurisdiction shall be issued without leave of the court shall not apply where there is an enactment giving the court the power to hear any claim against a person even if he is not within jurisdiction of the court or that the wrongful act neglect or default giving rise to the action did not take place within its jurisdiction.
The learned trial judge alluded to the provision of Order 6 Rule 12(2) to hold that by virtue of Order V Rule 12(b) of the Admiralty Jurisdiction Procedure Law made pursuant to Section 21 of the Admiralty Jurisdiction Act 1991, it provides an exception to the requirement for leave to issue and serve writ outside jurisdiction. In the words of the learned trial judge at page 58 of the Record:-
“That provision makes it clear that in Admiralty claim in personam or in Rem, service can be effected outside the court’s jurisdiction without leave in circumstances set out in the said Rule.”
The above holding will stand firm in the case of other processes sought to be served outside jurisdiction after the commencement of an action but holds no water with regard to the issuance of a writ of summons and service outside jurisdiction. This requires leave of court to do so except there is a specific enactment precluding the application of Order 6 Rule 12(1) with regard to a particular type of claim or claims as envisaged in Rule 12(2).
This issue is also resolved in favour of the Appellant but without prejudice to the earlier finding of this court that writ of summons in this suit was properly issued and served on the appellants with the leave of the trial court in compliance with Order 6 Rule 12(1) and Rule 13 of the Federal High Court (Civil Procedure) Rules 2000.
On the whole therefore I hold that this appeal only succeeds in part.
Except for the finding of the trial court that the Sheriff and Civil Process Act are not applicable to the Federal High court, the Ruling of the Trial Court delivered on 10th July 2008 is hereby affirmed.
I award N30, 000 cost against the appellant.
RITA NOSAKHARE PEMU, J.C.A.: I had a preview of the lead Judgment just delivered by my brother SAMUEL CHUKWUDUMEBI OSEJI J.C.A.
I agree entirely with his reasoning and conclusions that the appeal succeeds in part except for the order of the lower Court that the Sheriff and Civil Process Act is inapplicable to the Federal High Court. This is misconceived.
I affirm the Ruling of the lower Court of the 10th of July, 2008.
I subscribe to the consequential order made as to costs of N30,000 against the Appellant.
TIJJANI ABUBAKAR, J.C.A.: My learned brother OSEJI JCA granted me the privilege of reading before now the lead judgment just delivered.
My learned brother treated the issues for determination thoroughly and left no space for further comments. I adopt his reasoning and conclusion and join in allowing the appeal in part and affirming the ruling of the trial court delivered on 10th July, 2008.
I abide by the consequential orders inclusive of orders on costs.
Appearances
V. O. OgudeFor Appellant
AND
U. A. Inyang with A. Adebukunola and Kinsley EmekaFor Respondent
