SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED V. CHIEF JONAS ORUWARI & ORS.
(2012)LCN/5137(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of February, 2012
CA/PH/383/2009
RATIO
THE POSITION OF THE LAW THAT WHERE NOTICE OF PRELIMINARY OBJECTION TO THE COMPETENCE OF AN APPEAL IS ISSUED
Now, it is the position of the law that where a notice of preliminary objection to the competence of an appeal is issued, the court seized with the hearing of the appeal shall first consider and determine such objection. This is because if the objection is upheld, the appeal is terminated thereby. See Odu v. Agbor-Henseon [2003] 1 NWLR (Pt 802) 624 at 637 paragraph B-C, Osun State Government v. Delami [Nig] Ltd (2003) 7 NWLR (Pt.818) 72 Amoo v. Alabi (2003) 12 NWLR (Pt.835) 537. PER. PAUL ADAMU GALINJE J.C.A
THE POSITION OF THE LAW WHERE A GROUND OF APPEAL CAN ONLY BE RENDERED INCOMPETENT
I also agree with learned senior counsel for the Appellant that it is no longer the law that once a ground of appeal alleges error in law and or misdirection, the passage of the judgment concerned must be quoted. See B.A.S.F. Nigeria Ltd v. Faith Ent. Ltd [2010] 4 NWLR (Pt 1183) 104 at 134 paragraph D, Funduk Engineering Ltd v. James Mc Arthur & Ors (1995) 4 NWLR (Pt.392) 640 at 651 paragraph E-F, Ilori v. Tella (2006) 18 NWLR (Pt 1011) 267 at 285 paragraph C-D which were cited in the appellant’s reply brief. In Ajagunna v. Amusan (2003) 9 NWLR (Pt.825) 291 at 305 – 306 paragraph B-C, this court cited with authority in the case of Agnes Emecheta v Alphonsus Ugwueze Ogueri & Another [1998] 12 NWLR (579) 502 at 519 where it was held:- “Although it is customary, in practice, that where a ground of appeal alleges error or misdirection the particulars of the error or misdirection are furnished under a separate heading, it is also acceptable and not contrary to the provision of Order 3 rule 2(2) Court of Appeal Rules to have the particulars incorporated in the ground of appeal.” It is therefore the law that quoting of the passage of the judgment can be dispensed with once there is evidence stated in the particulars which disclose the validity of the complaint. It is therefore clear that a ground of appeal can only be rendered incompetent if the adverse party is genuinely misled as to the meaning and purpose of such grounds. A ground of appeal is the complaint of the appellant against the judgment of the court, once the adverse party understands the complaint and is not misled, the issue of quoting the passage of the judgment is only a matter of form and not substance as such an appeal will not be rendered incompetent merely because the ground is defective in form. PER. PAUL ADAMU GALINJE J.C.A
PRACTICE AND PROCEDURE: WHETHER AN APPEAL ON A QUESTION WHICH WAS NOT RAISED OR TRIED OR CONSIDERED BY THE TRIAL COURT CAN BE ALLOWED
In R. Apene v. Barclays Bank of Nigeria & Anor (1977) 11 NSCC 29 at 31, the Supreme Court, per Obaseki JSC in his lead judgment held:- “The general rule adopted in this court is that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial court, but where the question involves substantial points of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision of them, the court will allow the question to be raised and the points taken and prevent an obvious miscarriage of justice.” PER. PAUL ADAMU GALINJE J.C.A
ON THE ISSUE JURISDICTION OF THE COURT
In the same case of Owners of the Mv “Arabella” v. N.A.I.C. (supra) at 208, their Lordships of the apex court cited and relied on the case of Bello v. National Bank of [Nigeria] Ltd (1992) 6 NWLR [Pt 246] 206 at 217-218 where it was held inter alia thus:- “It is clear that the provisions of section 97 of the sheriffs and civil process Act are couched in mandatory terms. Any service of a writ without the proper endorsement as stipulated under S.97 is not a mere irregularity but is a fundamental defect that renders the writ incompetent.” Reliance was also placed on the case of Nwabueze v.Obi Okoye [1988] 4 NWLR (Pt 91) 664 where it was held:- “Having regard to what I have said about, the learned trial judge, in the proper exercise of her jurisdiction ought to have set aside the issuance and the service of the writ…. I have some where in this judgment said service of the writ is very fundamental to assumption of jurisdiction by a court of law. If the service of the writ as in the instant case is basically and fundamentally defective, at that point the court lack jurisdiction to adjudicate anything done thereon is null and void.” In relying and adopting the decision contained in the passages quoted above, the Supreme Court said:- “The above is trite law which is long settled. In spite of the fact that the learned trial Judge who eventually became the Chief Judge of that court, stated what is the firmly established law and also a plethora of decided authorities, some of them referred to in this judgment and the learned counsel for the appellant, in the court below still insists that his own interpretation of the law, should and ought to be preferred even by this court. Although he is entitled to his own views, but with respect, the law is so firmly settled, must prevail and infact, prevails and subsists.” The .decisions in Bello v. National Bank of [Nigeria] Ltd and Nwabueze v. Obi Okoye were given by State High Courts and were therefore right in my view. But since the Supreme Court has pronounced that section 97 of the Sheriff and Civil Process Act applies to the Federal High Court, I am bound by the decision in Owners of Mv “‘Arabella v. N.A.I.C. [supra] even though I have a different view. Since the issue for consideration here involves substantial question of law which touches on the jurisdiction of the trial court, the appellant’s right to raise it is unfettered. Indeed at page 212 paragraph A-B, of the Owners of the MV “Arabella v. NAIC [supra] the Supreme Court held that the issue of jurisdiction can be raised at any stage either by the parties or the court and that when the issue of jurisdiction is raised, the court should deal with it first, as the court has jurisdiction to decide whether it has jurisdiction. PER. PAUL ADAMU GALINJE J.C.A
JUSTICES
MUSA DATTIJO MUHAMMAD (OFR) Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED Appellant(s)
AND
CHIEF JONAS ORUWARI & ORS. Respondent(s)
PAUL ADAMU GALINJE J.C.A, (Delivering the Leading Judgment): In their final amended statement of claim dated 1/12/2008 and deemed filed on the 31/3/2009 the Respondents were herein who were plaintiffs at the Federal High court sitting at Yenagoa, Bayelsa State, claimed for themselves and as representing 82 fishing communities the following reliefs:
1. A declaration that the 28, 324 claimants represented by the’ plaintiffs on record are entitled to compensation arising from the Shell Petroleum Development Company Nigeria Limited Trunkline Nembe Creek Spillage of 22nd and 23rd December, 2003.
2. An order that the 28, 324 claimants be paid a sum equal to the sum paid to each claimant in the Defendant’s list or alternatively the sum of N500,000.00 which is N14,162,000.00 to each of the 28,324 claimants in the plaintiff’s list.
The Appellant filed a 14 paragraph statement of defence.
Pleadings having been filed and exchanged the case was set down for trial. The respondents called two witnesses while the Appellant called three witnesses in their determination to prove their respective cases. At the end of the trial and after addresses by learned counsel for the respective parties, the learned trial judge in a reserved and considered judgment delivered on the 31/3/2009 found for the respondents and awarded the sum of N1,250,000,000,00 as general damages in favour of the respondents and against the appellant.
The Appellant is dissatisfied with the judgment and has therefore brought this appeal. The initial notice of appeal is dated 1/4/2009 and filed on the 2/4/2009. This notice of app.al is at pages 475 – 477 of the Record of this appeal. However by a motion dated 5th March 2010, chief J.K. Gadzama, Learned Senior Counsel for the appellant applied for and was granted leave on the 28th June 2010 to amend the original notice of appeal. The amended notice of appeal upon which this appeal was argued is dated 4th March 2010 and filed on the 1st of July 2010. It contains nine grounds of appeal.
Parties filed and exchanged briefs of argument. At page 9 of the Appellant’s brief of argument, dated 30th June 2010 and filed on the 1st of July 2010, four issues have been formulated for determination of this appeal. They read thus:-
1. Whether the issuance and the service of the writ of summons were not void thus robbing the trial court of its jurisdiction to entertain the suit.
2. Whether the award of general damages by the trial court was legally justifiable in the circumstance of the case before it.
3. Whether having regard to the pleadings and the evidence before the trial court, the respondents proved their case to entitle them to judgment.
4. Whether the Respondents, suit was not improperly constituted as a representative action.
For the Respondents, a notice of preliminary objection to the hearing of the appeal is issued at page 6 of the Respondents’ brief of argument dated 3rd November, 2010 and filed on the 4th November 2010.
The grounds of objection as set out in the brief of argument are as follows:-
“1. The Original notice of appeal dated 1/4/2009 and filed on 2/4/2009 does not contain any valid or competent ground of appeal and is therefore a nullity.
2. The original notice of appeal having not initiated a valid appeal this honourable court lacks jurisdiction to entertain the appeal including to [sic] grant [sic] any interlocutory application predicated on the invalid appeal such as the notice of motion dated 5/3/2010 and filed on 10/3/2010 by the appellant which sought for leave to amend the said notice of appeal.
3. The orders made by this Honourable court on 28/6/2010 granting the appellant’s notice of motion dated 5/3/2010 and filed 10/3/2010 were made without jurisdiction and are nullities, there being no valid or competent notice of appeal or appeal upon which the application was predicated. The Orders should be set aside being null and void.
4. None of the nine grounds of appeal contained in the amended notice and grounds of appeal filed on 1/7/2010 is valid or competent. There is therefore no valid appeal before the court.”
This preliminary objection is argued at pages 7-49. Thereafter, three issues for determination of the appeal were formulated on behalf of the Respondents. These issues are reproduced hereunder as follows:-
1. Whether the lower court had jurisdiction to entertain and determine this suit.
2. Whether this suit was properly constituted.
3. Whether the decision of the learned trial judge that the respondents were adversely affected by the crude oil spill from the defendant’s oil installation and were therefore entitled to general damages assessed at N1,250,000.000.00 is right.”
Now, it is the position of the law that where a notice of preliminary objection to the competence of an appeal is issued, the court seized with the hearing of the appeal shall first consider and determine such objection. This is because if the objection is upheld, the appeal is terminated thereby. See Odu v. Agbor-Henseon [2003] 1 NWLR (Pt 802) 624 at 637 paragraph B-C, Osun State Government v. Delami [Nig] Ltd (2003) 7 NWLR (Pt.818) 72 Amoo v. Alabi (2003) 12 NWLR (Pt.835) 537. On the basis of the authorities I have cited herein above, I will proceed to consider the preliminary objection first in this appeal.
However before doing that, I wish to take exception to the manner in which the respondents’ brief of argument is crafted. By Order 3 rule 3[6][a] of the Court of Appeal Rules 2011, every brief to be filed in court shall not exceed 30 pages, except where the court directs otherwise. The Respondents’ brief is far in excess of 30 pages. Indeed the brief of argument runs into 128 pages. Even though the brief was filed on the 4th of November 2010 before the coming into force of the Rules of court under contemplation, the Respondents were required to amend the brief to conform with the new rules, since the appeal was heard after the 2011 Rules came into force.
Court rules as opposed to substantive law operate retrospectively, Any documents pending before the court which were made under repealed rules of court, must be amended to conform with the new rules – See:- Chigbu v. Tonimas Nigeria Ltd (2006) 9 NWLR (Pt 984) 189 at 208 – 209 paragraph H – D. Be that as it may, since the courts are enjoined to do substantial justice where strict adherence to the rules of court will result in injustice. I will in this appeal give consideration to the respondents’ brief of argument as their attention was not drawn to the anomalies at the hearing of the appeal.
In his argument on ground 1 of the grounds of objection, Mr. Nwofor, Learned Senior counsel for the Respondents submitted that the 1st ground of appeal in the notice of appeal filed on 2/4/2009 is false as there is no where in the judgment of the lower court, the respondents were awarded the sum of N12,500,000 as general damages. Learned Senior Counsel found fault with the particulars of the said ground one on the notice of appeal which he said were false and contended that a ground of appeal is incompetent when the factual basis is false or non-existent. In aid learned senior counsel cited Merchantile Bank of Nigeria Plc & Anor v. Linus Nwobodo [2005] 14 NWLR [Pt 945] 379, M.U. Ikam & 3 Ors v. Victor Ezianya (2002) 2 NWLR (Pt. 757) 245 at 261 paragraph G-H, Alakija v. Abdullai (1998) 6 NWLR (Pt.552).
In a further argument Learned Senior Counsel submitted that the three grounds in the initial notice of appeal complained that the trial judge committed error in his judgment, but the appellant failed to quote the portion of the judgment where the alleged error of law was committed. This learned counsel submitted, is contrary to the provision of Order 6 Rule 2(2) of the Court of Appeal Rules 2007. In support of his submission, learned counsel cited authorities, amongst which are:- Nnadi v. Okoli (1997) 7 SC 57, Anyaoke v. Adi (No.2) (1986) 3 NWLR (Pt.31) 731; Chief Akowa Nwako & Ors v. The Governor of Rivers State of Nigeria & 7 Ors (1989) 2 NWLR (Pt.104) 470 at 479 paragraph G-G; Lukas Pharmaceutical Chemist Ltd v. Roche (Nig.) Ltd (1995) 1 NWLR (Pt 369) 28.
This ground and grounds 2 and 3 of the objection are directed against the original notice of appeal dated 1/4/2009 and filed on the 2/4/2009 and the ruling of this court on the 28th June, 2010 in which the appellant’s application to amend the original notice of appeal and to raise and argue fresh issues dated 5/3/2010 was granted. According to Mr. Nwofor, Learned Senior Counsel for the objectors, this court lacks the jurisdiction to entertain this appeal including the grant of any interlocutory application predicated on the invalid appeal such as the motion dated 5/3/2010 and filed on 10/3/2010.
In opposing the preliminary objection Chief Gadzama, Learned Senior Counsel for the appellant submitted rightly in my view, that if the Respondent felt that the ruling of 28th June 2010 in which the initial notice of appeal was amended was delivered without jurisdiction, they should have applied through a motion on notice for that ruling to be set aside. According to the learned counsel, an Order validly made by a court cannot be set aside on the basis of a preliminary objection. In aid learned senior counsel cited Okafor & Ors v. A.G [1999] 6 NWLR [Pt 200] 659 at 680 paragraph A-C.
I entirely agree with the Learned Senior Counsel for the Appellant that the Order of this court in its ruling of 28th June 2010 in which the original notice of appeal was amended is still subsisting. Such Order cannot be set aside on the basis of a preliminary objection to the competence of a document filed by an adverse party based on the said court Order. The proper procedure for challenging a court order is either by appeal or an application praying the court that made the order to have it set aside for reasons of irregularity. There is no such process before this court, as such the basis of the preliminary objection to the competence of a document which is no longer the pillar that supports this appeal is not useful to the Respondents.
The 1st, 2nd and 3rd grounds of objection are therefore baseless and are therefore overruled.
The 4th ground of objection is that none of the grounds of appeal contained in the amended notice and ground, or appeal filed on 1/7 /2000 is valid or competent; as such there is no valid appeal before this court.
Learned Senior Counsel for the Respondents who are the objectors proffered arguments on the nine grounds serially and the complaints in all the grounds are centered on –
1. Passages of the judgment in which the errors in law are allegedly committed have not been quoted.
2. Some information contained in the particulars preceding the grounds are false.
3. Some particulars of error to some of the grounds are narratives in that they tell stories of what allegedly transpired in the trial of the case at the lower court.
By vigorously pursuing this preliminary objection on the grounds reproduced herein above, it will appeal that the learned counsel has not appreciated the current attitude of courts towards determination of cases on legal technicality. The day, when matters were determined on the basis of legal technicalities has gone. The courts now lean towards doing substantial justice in any given case as opposed to deciding matters on legal technicality.
I also agree with learned senior counsel for the Appellant that it is no longer the law that once a ground of appeal alleges error in law and or misdirection, the passage of the judgment concerned must be quoted. See B.A.S.F. Nigeria Ltd v. Faith Ent. Ltd [2010] 4 NWLR (Pt 1183) 104 at 134 paragraph D, Funduk Engineering Ltd v. James Mc Arthur & Ors (1995) 4 NWLR (Pt.392) 640 at 651 paragraph E-F, Ilori v. Tella (2006) 18 NWLR (Pt 1011) 267 at 285 paragraph C-D which were cited in the appellant’s reply brief. In Ajagunna v. Amusan (2003) 9 NWLR (Pt.825) 291 at 305 – 306 paragraph B-C, this court cited with authority in the case of Agnes Emecheta v Alphonsus Ugwueze Ogueri & Another [1998] 12 NWLR (579) 502 at 519 where it was held:-
“Although it is customary, in practice, that where a ground of appeal alleges error or misdirection the particulars of the error or misdirection are furnished under a separate heading, it is also acceptable and not contrary to the provision of Order 3 rule 2(2) Court of Appeal Rules to have the particulars incorporated in the ground of appeal.”
It is therefore the law that quoting of the passage of the judgment can be dispensed with once there is evidence stated in the particulars which disclose the validity of the complaint. It is therefore clear that a ground of appeal can only be rendered incompetent if the adverse party is genuinely misled as to the meaning and purpose of such grounds. A ground of appeal is the complaint of the appellant against the judgment of the court, once the adverse party understands the complaint and is not misled, the issue of quoting the passage of the judgment is only a matter of form and not substance as such an appeal will not be rendered incompetent merely because the ground is defective in form.
The issue of whether some information contained in the ground of appeal are false is an issue to be decided in the main appeal as it has nothing to do with the competence of those grounds of appeal. Arguments in support and against such grounds of appeal will bring to the fore the truth or otherwise of the contents of the grounds of appeal. It will therefore be unreasonable to terminate the appeal at this stage on a complaint that some of the particulars are false, as there exist some of the particulars that are in accord with the proceedings of the lower court and the grounds of appeal.
The Respondents’ last quarrel against the grounds of appeal is that some particulars to grounds 2, 3, 4, 5, 6, 7, 8 and 9 are conclusions, argumentative, and narratives in that they tell stories of what allegedly transpired in the trial of the case at the lower court. In his argument learned senior counsel for the Respondents failed to disclose whether the respondents were misled or that a miscarriage of justice is about to be occasioned if the grounds of appeal are not struck out. This is clearly a demonstration that the Respondents have clearly understood the meaning and purpose of the grounds of appeal. I will therefore not do anything that will foreclose the consideration of the appeal on the merit.
For all I have said therefore, this preliminary objection lacks merit and it is hereby overruled.
On the main appeal, the issues formulated by both parties for determination of this appeal have bee set out elsewhere in this judgment. The 4 issues formulated by learned senior counsel for the Appellant seem to have covered the field. The Respondents three issues being similar to the issues formulated by the appellant are hereby subsumed into the 4 issues formulated by the Appellant which I hereby adopt and rely upon for determination of this appeal.
Arguing the first issue Chief J.K. Gadzama, Learned Senior Counsel for the Appellant submitted that the issuance and service of the writ of summons by the Federal High Court sitting in Yenagoa, Bayelsa State on the appellant who resides in Port Harcourt Rivers State was void thus robbing that court of its jurisdiction to entertain the suit as the process was served outside jurisdiction without complying with the conditions precedent before issuance and effecting such service. According learned to the senior counsel, the conditions precedent for the issuance of writ of summons against a defendant who is resident outside the area of territorial jurisdiction of the court are:-
1. Leave of the court must be sought and obtained before a writ of summons would be issued and served out of jurisdiction.
2. Every writ of summons for service out of jurisdiction must be endorsed with a notice to the effect that the summons is to be served out of the issuing state and in the state where service is to be effected.
In support, learned counsel cited section 97 of the Sheriff and Civil Process Act, Cap S.6 laws of the Federation of Nigeria 2004 and the authority in Bello v. National Bank of Nigeria [1992] 6 NWLR (Pt 246 at 217 – 218 paragraph E – H, Nwabueze & Anor v. Justice Obi Okoye (1998) 4 NWLR (Pt.91) 664.
Learned senior counsel on the authority of Madukolu & Ors v’ Nkemdilim (1962) 1 Ail NLR 587 at 589 urged this court to hold that the conditions precedent to the execution of the jurisdiction of the lower court were not fulfilled by the Respondents, as such the proceedings of the lower court should be declared null and void.
Finally this court is urged to resolve this issue in favour of the Appellant by striking out the suit at the lower courts.
In reply on this issue, Mr. B.E.I. Nwofor, learned senior counsel for the Respondents made reference to Order 6 rule 12[1]. Order 6 rule 5, Order 1 rule 3[1], Order 13 rule 31 all of the Federal High Court [Civil Procedure] Rules 2000, the applicable Federal High Court Rules at the time this case was decided at the Federal High Court, Yenagoa. He submitted that the service of the writ of summons on the Appellant at Port Harcourt was carried out within the jurisdiction of the Federal High Court Yenagoa and the Respondents therefore did not require the leave of the trial court to effect such service.
In a further argument, learned senior counsel submitted that the Appellant did not complain of the violation of section 97 of the Sheriffs and Civil Process Act throughout the proceedings at the lower court, even though they were served with the writ of summons as such it is deemed to have waived its right to object to the validity of the process. In Support of this submission, learned senior counsel cited the authorities in Adegoke Motors Ltd v. Dr. Babatunde Adesanya & Anor [1989] 3 NWLR [Pt.109] 250 at 273 paragraph C – D, Odua Investment Company Ltd v Joseph Taiwo Talabi (1997) 10 N.W.L.R. (Pt 523) 1 at 51 paragraph 4.
Learned senior counsel went on to distinguish the cases of Arabella v. Nigeria Agricultural Insurance Cooperation (2008) 11 NWLR (Pt 1097), Bello v. National Bank of Nig. Ltd [supra] and Nwabueze & Anor v. Okoye [supra] with the instant case and contended that the defendants in those cases raised objection to the validity of the processes that were served outside jurisdiction without complying with the provision of S.97 of the Sheriff and Civil Process Act timeousty, whereas in the instant case no such objection was raised.
Finally learned senior counsel submitted that the endorsement of writ before its service is administrative affair of the lower court and litigants cannot be punished for mistakes committed by the courts and its registry staff. In aid the authorities in Famfa Oil Ltd v. A.G. of the Federation and another [2003] 18 NWLR [Pt 852] 452 at 471 paragraphs F – H, Broad Bank of Nig Ltd v. Alhaji S. Olayiwola & Sons & Anor [2005] .3 NWLR [Pt 912] 434 at 453 paragraph B-D, Cooperative & Commerce Bank (Nig) Plc v. A.G. Anambra State & Anor [1992] 1 NWLR [Pt. 216] 528 at page 561 were cited.
On the whole, learned senior counsel urged the court to resolve this issue in favour of the Respondents and dismiss the ground upon which it is formulated.
In reaction to the argument of the Respondent’s learned senior counsel for the Appellant submitted that the interpretation of “Out of jurisdiction” under Order 13 Rule 31 of the Federal High Court [Civil Procedure] Rules 2000 is expressly restricted to that order and no more. According to the learned senior counsel, while order 13 deals with service of process, Order 6 Rules 12 of the said Rule deals with issuing of writ of summons as such since issuing of writ of summons is a matter outside Order 13, the interpretation of “out of jurisdiction” cannot be imported or stretched to cover it.
On the issue of the failure of the appellant to timeously object to the competence of the writ of summons, learned senior counsel submitted that, failure to endorse the required notice on a writ of summons for service outside a state where it was issued is not a mere irregularity which can be waived but a fundamental defect that render the writ incompetent and goes to the root of the jurisdiction and affects the competence of the court. In support, learned senior counsel cited Owners of the MV. “Arabella” v. N.A.I.C. [supra] at page 212 paragraph E-G
On the issue of whether the appellant adduced evidence to show that S.97 of the sheriff and civil process Act was violated, learned senior counsel urged this court to look at pages 1-7 of the record of appeal in order to examine the writ of summons under contention since all appeals are determined by way of rehearing the case.
On the issue of issuance and service of writ of summons being an administrative affair of the court, learned senior counsel submitted that the Respondents were required to apply for leave to issue the writ out of jurisdiction and the administrative affair of the court, could only be invoked after a grant of such application. Where such application was not made, failure to endorse the writ cannot be blamed on the registry.
Finally on this issue learned senior counsel submitted that the issue of violation of section 97 of the sheriffs and civil process Act was not raised at the lower court and so the question of pleading non compliance with any condition precedent does not arise.
Now, the first question for settlement under this issue is whether the writ of summons dated 26th October 2004 which was filed on the same day by the Respondents was property issued and served. If not can the appellant’s failure to raise objection to the competence of the issuance and service of the writ of summons constitute a waiver of its right to raise, such objection before this court. I have to consider this question first because issuance and service of the writ of summons is very fundamental to assumption of jurisdiction by a court of law.
If the service of the writ is basically and fundamentally defective, the court lacks jurisdiction to adjudicate and anything done thereon is null and void.
Section 249(1) of the constitution of the Federal Republic of Nigeria provides for the establishment of a High Court for the Federation in the following word:-
“There shall be a Federal High Court.”
This section provides for only one Federal High Court for the Federation under the leadership of a Chief Judge as provided for under section 250[1] of the same constitution. Section 254 of the constitution aforesaid provides as follows:-
“Subject to the provisions of any Act of the National assembly, the Chief Judge of the Federal High Court may make rules for regulating the practice and procedure of the Federal High Court”
By the provision of section 254 of the constitution therefore, it is crystal clear that the rules of practice and procedure of the Federal High Court is subordinate to the provisions of any Act of the National Assembly.
Order: 6 Rule 12(1) of the Federal High Court [Civil Procedure Rules 2000 provides that all writs and notice to be served out of the jurisdiction shall only be issued with leave of the court. Order 6 rule 5 of the same rules provides thus:-
“For purposes of service of writ of summons or for serving any other processes relating to an action in the court, the whole Federation is within the jurisdiction of the court.”
Order 13 Rule 31 of the Federal High Court Rules defines “out of jurisdiction” as out of the Federal Republic of Nigeria. However this order opens with the word “In this Order”, as such the provision is clearly restricted to that order as opposed to the rules as a whole.
Could Order 6 Rule 5 of the Federal High Court (Civil Procedure) Rules then assist the Respondents in their quest to justify the issuance of the writ of summons and subsequent service of same in Port Harcourt without the leave of court and necessary endorsement as provided for under S.97 of the Sheriff and Civil Process Act, Cap S.6 Laws of the Federation of Nigeria 1990. I have stated elsewhere in this judgment that, by the provision of section 254 of the 1999 Constitution of Nigeria, the Rules of the Federal High Court is subordinate to any Act of the National Assembly.
The Sheriff and Civil Process Act is an Act of the National Assembly. This might have probably been the factor which was considered by the apex court in the case of Owners of the MV “Arabella” v N.A.I. [2008] 11 NWLR [Pt 1097] 182. In that case, one of the main issues raised in the appeal was whether a writ issued at the Federal High Court Lagos for service on a defendant outside Lagos needs to comply with the provisions of sections 96 and 97 of the sheriff and civil process Act, Cap 407, Laws of the Federation of Nigeria 1990. At pages 220 -221 paragraph H – B, the Apex Court, per Akintan JSC held:-
“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 total misconception to believe that the provisions of the section are inapplicable to the Federal High Court because the jurisdiction of that court covers the entire nation.”
Their lordships of the apex court have spoken; all other knees must bow in obedience. For me I would have thought that the provisions of section 97 applied strictly to the States and Capital Territory High Courts as well as Magistrates’ courts, bearing in mind the (provision of section 96(1) and (2) of the Sheriff and Civil Process Act. This section provides as follows:-
“96(1) A writ of summon issued out of or requiring the defendant to appear at any court of a State or the Capital Territory may be served on the defendant in any other State or the Capital Territory.
(2) Such service may, subject to any rules of court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital Territory in which the writ was issued. (Underling is mine).
Section 97 of the Sheriff and Civil Process Act provides thus:-
“97. 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].”
Now both parties to this appeal have agreed that –
1. Leave of the Federal High Court sitting in Bayelsa State was not sought and obtained before the writ of summons that originated or initiated the suit was issued and served outside the State.
2. That a notice to the effect that the summons is to be served out of the issuing state and in the state where service is to be effected was not so endorsed on the writ of summons.
Learned counsel for the Respondents argued forcefully that the issue of endorsement of the writ is a question of fact which should have been supported by evidence at the lower court and such evidence was never proferred. This I think is a lame argument which cannot help the Respondents, since the writ is part of the record of the appeal.
If there were such endorsement, this court would have had no difficulty in locating such endorsement, since the record of the appeal is meant to be read and the appeal reheard completely. I have looked through the writ of summons at pages 1-4 and I have not come across such endorsement. I therefore agree with the parties that the writ was not endorsed and no leave was so obtained before same was issued and served.
Can this issue be raised here since same was not raised and considered at the lower court? In other words, did the appellant waive his right of objection to the validity of the writ of summons?
In R. Apene v. Barclays Bank of Nigeria & Anor (1977) 11 NSCC 29 at 31, the Supreme Court, per Obaseki JSC in his lead judgment held:-
“The general rule adopted in this court is that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial court, but where the question involves substantial points of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision of them, the court will allow the question to be raised and the points taken and prevent an obvious miscarriage of justice.”
In the same case of Owners of the Mv “Arabella” v. N.A.I.C. (supra) at 208, their Lordships of the apex court cited and relied on the case of Bello v. National Bank of [Nigeria] Ltd (1992) 6 NWLR [Pt 246] 206 at 217-218 where it was held inter alia thus:-
“It is clear that the provisions of section 97 of the sheriffs and civil process Act are couched in mandatory terms. Any service of a writ without the proper endorsement as stipulated under S.97 is not a mere irregularity but is a fundamental defect that renders the writ incompetent.”
Reliance was also placed on the case of Nwabueze v.Obi Okoye [1988] 4 NWLR (Pt 91) 664 where it was held:-
“Having regard to what I have said about, the learned trial judge, in the proper exercise of her jurisdiction ought to have set aside the issuance and the service of the writ…. I have some where in this judgment said service of the writ is very fundamental to assumption of jurisdiction by a court of law. If the service of the writ as in the instant case is basically and fundamentally defective, at that point the court lack jurisdiction to adjudicate anything done thereon is null and void.”
In relying and adopting the decision contained in the passages quoted above, the Supreme Court said:-
“The above is trite law which is long settled. In spite of the fact that the learned trial Judge who eventually became the Chief Judge of that court, stated what is the firmly established law and also a plethora of decided authorities, some of them referred to in this judgment and the learned counsel for the appellant, in the court below still insists that his own interpretation of the law, should and ought to be preferred even by this court. Although he is entitled to his own views, but with respect, the law is so firmly settled, must prevail and infact, prevails and subsists.”
The .decisions in Bello v. National Bank of [Nigeria] Ltd and Nwabueze v. Obi Okoye were given by State High Courts and were therefore right in my view. But since the Supreme Court has pronounced that section 97 of the Sheriff and Civil Process Act applies to the Federal High Court, I am bound by the decision in Owners of Mv “‘Arabella v. N.A.I.C. [supra] even though I have a different view.
Since the issue for consideration here involves substantial question of law which touches on the jurisdiction of the trial court, the appellant’s right to raise it is unfettered. Indeed at page 212 paragraph A-B, of the Owners of the MV “Arabella v. NAIC [supra] the Supreme Court held that the issue of jurisdiction can be raised at any stage either by the parties or the court and that when the issue of jurisdiction is raised, the court should deal with it first, as the court has jurisdiction to decide whether it has jurisdiction.
Now where the provision of the law is mandatory as declared by the apex court and it is not a mere irregularity, the question of waiver does not arise, especially where its violation is held to be a fundamental defect that renders the process associated with that provision null and void. For this reason therefore, the lower court was wrong in determining the suit based on a writ of summons which was not validly issued and served. This issue is therefore resolved in favour of the Appellant and the 4th ground of appeal upon which it is formulated is therefore allowed. The decision of the lower, court is hereby set aside. Since the issuance and service of the writ of summons was defective, same is hereby struck out.
Having struck out the writ of summons, a consideration of the remaining issues will amount to a mere academic exercise which I am not prepared to embark upon. See Owners of the MV “Arabell” v. N.A.I.C. (supra), International Bank for West Africa Ltd. & Anor v Pavex International Co. (Nig.) Ltd. (2000) 4 SCNJ 200, Alli & Anor. v. Chief Alesiloye & 8 Ors. (2000) 6 NWLR (Pt. 660) 177.
I make no order as to cost.
MUSA DATTIJO MUHAMMAD J.C.A: I read in draft the lead judgment of my learned brother GALINJE JCA. He has, as usual, been thorough. I adopt the judgment as mine in allowing the appeal. I make no order as to cost also.
TUNDE OYEBANJI J.C.A.: I went through the draft of the judgment just delivered by my learned brother P.A, GALINJE, JCA. I am in full agreement with the reasoning and conclusion therein.
I have nothing useful to add.
This appeal is allowed. I also make no order as to costs.
Appearances
Mr. Sonny O. Wogu,
Mrs. O.E. Olumekun and
Miss I.D. NtukFor Appellant
AND
Mr. F.G. Warmate,
Mr. F.O. Ohia and
Miss S.N. BrownFor Respondent
