THE MV “KOTA MANIS” & ORS v. GEEPEE INDUSTRIES NIGERIA LIMITED & ANOR
(2018)LCN/10746(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of February, 2018
CA/L/103/14
RATIO
COURT PRACTICE: WHETHER NON-COMPLIANCE WITH THE SERVICE OF ORIGINATING PROCESS TOUCHS THE ISSUE OF COMPETENCE
It is trite that non-compliance with the issuance and service of originating processes touch on the competence of a Court to adjudicate over a matter before it. Where there is a defect in competence, the proceedings are rendered a nullity no matter how well conducted, see, MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 34. PER CHIDI NWAOMA UWA, J.C.A.
APPEAL: WHETHER IT IS A MANDATORY REQUIREMENT TO OBTAIN A SERVICE OF COURT PROCESS ON A DEFENDANT
The service of Court processes on a defendant is a mandatory requirement that must be fulfilled before the Court can assume jurisdiction over a matter. Every originating process is mandatorily expected to be served on the defendant personally by Order 12 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009. Service of originating processes touch on the jurisdiction of the Court to adjudicate over the matter and same cannot be served by proxy through another. To start with, an originating process to be issued for service outside jurisdiction is required to be marked “concurrent” along with a writ to be served within jurisdiction. Order 3 Rules 19 and 20 of the Federal High Court (Civil Procedure) Rules, 2009 provide as follows: Rule 19: “A plaintiff may at the issuance of an originating process or at any time during its life span, cause to be issued one or more concurrent originating processes each to bear the same date as the initial process marked “CONCURRENT” and have stated on it the date of issue. Rule 20: “An originating process for service within jurisdiction may be issued and marked as a concurrent originating process with one for service out of jurisdiction and an originating process for service out of the jurisdiction may be issued and marked as a concurrent originating process with one for service within jurisdiction.” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
1. THE MV “KOTA MANIS”
2. THE SISTER SHIP OF THE MV “KOTA MANIS”
3. THE OWNER(S) OF THE MV “KOTA MANIS”
4. PIL NIGERIA LIMITED
5. THE MV “KOTA KASTURI” Appellant(s)
AND
1. GEEPEE INDUSTRIES NIGERIA LIMITED
2. STACO INSURANCE NIGERIA LIMITED Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Respondents were the plaintiffs at the lower Court. By their writ of summons taken out on 3rd April, 2013, they sought the following reliefs against the appellants as defendants jointly and severally thus:
A. “LIQUIDATED DAMAGES in the sum of N94, 04, 146.97 being direct losses sustained by the 1st Plaintiff as a result of the fire incident on board the 1st Defendant as follows:
Direct cost of 800 drums of DOP (CFR) N49,476,784.00
Insurance Amount N107,184.00
Bank Charges
Establishment Charges – N133,116.33
Confirmation Charges – N182,361.67
Interest on Usance – N627,381.16
Shipping Charges – N302,325.00
Terminal Charges – N3,977,233.00
Transport Charges – N700,000.00
Agency Fee (Clearing Agent) – N200,000.00
Total cost of Goods – N55,706,385,16
Interest for Delayed Period – N2,638,761.81
(For 4 Months at 16% Per Annum)
Total Direct Money Loss – N58,345,146,97
Material Disposal Charges – N1,750,000.00
Loss of Production/Revenue – N28,500,000.00
Extra Overheads – N5,450,000.00
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Statutory Payment for Disposal of GOP – N4,411,000,00
Total Loss – N98,456,146.97
B. GENERAL DAMAGES for loss occasioned on the 1st plaintiff by the negligence of the Defendants resulting in the fire on board the 1st Defendant in the sum of N100,000,000.
C. COSTS of the action including legal expenses in the sum of N10,000,000.”
The claims were alleged losses said to have been sustained by the 1st plaintiff as a result of the fire incident on board the 1st Defendant at berth within the Lagos port. By a motion on Notice dated and filed on 20/05/13, the appellants as defendants prayed for an order of Court striking out the suit for want of jurisdiction. The respondents opposed the application. In its Ruling of 3rd October, 2013, the trial Court struck out the Appellants’ application challenging the jurisdiction of the Court in the matter as lacking in merit.
The appellants who were dissatisfied with the Ruling filed their Notice of Appeal containing Eight (8) grounds of Appeal from which Seven (7) issues were distilled for determination by this Court. The issues are as follows:
1. “Whether the learned trial Judge was right or wrong
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in refusing to strike out or set aside the issuance of the Writ of Summons when it was clear to him that no prior leave of Court was sought and/or obtained before the Writ was issued on the 3rd Appellant who is ordinarily resident outside jurisdiction (GROUND 1)
2. Whether the learned trial judge was right in holding that the suit is an action ‘in rem’ and was properly constituted in compliance with the provision of the law on service. (GROUND 2)
3. Whether the learned trial judge was right in holding that service on the 4th Appellant, PIL Nigeria Limited, as local agent to the 3rd Appellant was proper service and therefore leave to issue the Writ on the 3rd Appellant, though ordinarily resident outside jurisdiction will not be required. (GROUND 3)
4. Whether the learned trial judge was right when he held that the provisions of Sheriffs and Civil Processes Act, Cap. 407, Laws of the Federation of Nigeria 2004 and the recent decision of the Supreme Court in OWNERS OF THE MV “ARABELLA VS. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (PT. 1097) 182 and other Court of Appeal decisions on the issue do not apply and therefore the instant
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case may be commenced by a Writ of Summons not requiring leave of the Court (GROUNDS 4 & 5).
5. Whether the learned trial Judge was right by relying on the Supreme Court decision in KIDA VS. OGUNMOLA (2006) 6 SC 147, when he held that substituted service could be ordered in the circumstances of the case when there was no such application or order for substituted service in the circumstances of the case, thereby occasioning a miscarriage of justice to the Appellants (GROUND 6).
6. Whether the learned trial Judge was right in his construction of Section 5 (7) of the Admiralty Jurisdiction Act in holding that 3rd Defendant/Appellant owners are deemed to be resident within the jurisdiction such that there was proper service on the Defendants/Appellants within jurisdiction (GROUND 7).
7. Whether the learned trial Judge was right or wrong in failing to strike out the suit as against the intervener/5th Appellant or set aside the arrest order served on the 5th Appellant vessel and returning the original Bank Guarantee issued by Guaranty Trust Bank and lodged in Court for its release to the intervener/5th Appellant for cancellation, when it was clear to
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the Judge that the 1st Appellant is not a sister vessel to the 5th Appellant as to justify the service of the arrest order on 5th Appellant in the circumstances of the case (GROUND 8).”
The Respondents on their part distilled a sole issue for the determination of the appeal thus:
“Whether in the circumstances of this case the writ of summons was issued and served in compliance with the law.”
In arguing the appeal, the learned counsel to the Appellants Ayo Olorunfemi Esq., with Temitayo Gaji relied on his brief of argument filed on 14/10/15 but, deemed filed on 8/6/16 and his reply brief filed on 2/11/17 but, deemed filed on 6/11/17, adopted same as his argument in the appeal in urging us to set aside the Ruling of the learned trial judge.
In arguing his issue one (1) it was submitted that a Court must be competent for it to have the competence to adjudicate on any matter submitted to it, any defect in competence would render the proceedings a nullity however well conducted. See MADUKOLU VS. NKEMDILIM (1962) 2 SC NLR 34. In respect of issuance and service of originating processes reference was made to Order 3 Rule 19 and 20 of the Federal High
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Court (Civil Procedure) Rules 2009 and Section 98 of the Sheriffs and Civil Process Act to the effect that the originating processes must be issued and marked ‘concurrent’ for service within jurisdiction with one for service out of jurisdiction. It was argued that the respondents did not fulfill the condition precedent before the writ was taken out in that no prior leave of Court was obtained to issue and serve the writ outside the jurisdiction of the lower Court and that the applicants were ordinarily resident abroad (Liberia and Germany). The writ was also not marked as ‘concurrent’. See, PURECHEM INDUSTRIES LTD VS. SPICA SHIPPING CO. LTD (2012) 3 NWLR (PT. 1287) 327. SKENCONSULT (NIG) LTD VS. UKEY (1981) 12 NSCC PAGE 1 at PAGES 9 – 11.
It was argued that the respondents as plaintiffs failed to comply with Order 7 Rule 1(1) of the Federal High Court (Civil Procedure) Rules 2009. It was submitted that the period within which the defendants ought to enter appearance in the suit was limited to fourteen (14) days on the writ as against the required minimum of Thirty (30) days prescribed by law. See, Section 99 of Sheriffs and Civil Process Act, CAP 407,
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Laws of the Federation of Nigeria 2004, OWNERS OF MV ‘ARABELLA’ VS. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR 11 NWLR (PT. 1097) 182, at PAGE 207, PARAS. B-E and NIGERIA PORT AUTHORITY VS. EYAMBA (2005) 12 NWLR (PT. 939) 409 at 447 – 448, PARAS. H – A. It was concluded on this issue that the condition precedent as laid down in Sections 97, 98 and 99 of the Sheriffs and Civil Process Act being the applicable statute in the lower Court as was held in MV ‘Arabella’ (Supra) cannot be waived by the parties, failure to comply with the conditions would vitiate the entire proceedings. We were urged to hold that the lower Court’s jurisdiction was vitiated and strike out the Respondents’ writ for being incompetent.
In arguing his second issue, the learned counsel defined an action ‘in rem’ as an action commenced against the res, in this case the ship or maritime property such as cargo and freight. While an action ‘in personam’ is an action against a person. It was submitted that the Respondents’ suit is not an action ‘in rem’ as the Respondents at the lower Court combined both an action ‘in rem’ and an action ‘in
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personam, and must therefore comply with the rules governing both. Further, that while a purely admiralty action ‘in rem’ will not require prior leave for the issuance and service of the writ of summons, an ‘in personam’ action and/or a combination of both actions will mandatorily require a prospective litigant to seek and obtain prior leave of the Court for the issuance and service of the writ outside the jurisdiction of the Court. The respondents did not obtain such leave. It was submitted that the lower Court was wrong to have held in its ruling that this is an admiralty action ‘in rem’, see, pages 311 and 315 of the records. It was submitted that the 3rd and 4th defendants’ names were included in the action, therefore making the action not purely an admiralty action ‘in rem’ but, a combination both an ‘in rem’ and ‘in personam’ action which required the respondents to comply with the rules of issuance and service of the writ within and outside jurisdiction.
On the appellants’ third issue, it was submitted that ‘service’ of Court processes on the Defendant is mandatory and must be fulfilled before the Court can assume jurisdiction over a matter,
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see, MADUKOLU VS. NKEMDILIM (supra) and that every originating process should be served personally, see, Order 12 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009. See, also Section 78 of the Companies and Allied Matters Act CAP C20 LFN 2004. It was stressed that an originating process cannot be served by proxy on another, see AGIP NIG. LTD VS. AGIP PETROL INTERNATIONAL (2010) 5 NWLR (PT. 1187) 348 at 388 – 389 G – B. It was re-argued that leave ought to have been obtained before the issuance and service of the writ (an originating process) on the 3rd appellant who is resident outside the jurisdiction of the Court and it was to be marked ‘concurrent writ’, failure to do so was said to be fatal. We were urged to set aside the issuance and service of the writ for want of jurisdiction. See,OWNERS OF MV ‘ARABELLA’ VS. NIGERIAN AGRICULTURAL INSURANCE CORPORATION (supra) AGIP NIG. LTD VS. AGIP PETROLEUM (supra) and NPA VS. EYAMBA (supra).
On the appellants’ fourth issue, it was submitted that the trial Court was wrong to have held that the Federal High Court Rules and the Sheriff and Civil Process Act do not apply as this case is an admiralty
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matter, pages 308 – 309 and 313 of the printed records. It was argued that in the issuance and service of a writ the provisions of the Sheriffs and Civil Process Act clearly apply. See, the Apex Court decision in OWNERS OF MV ‘ARABELLA’ VS. NIGERIAN AGRICULTURAL INSURANCE CORPORATION (2008) (supra) at PAGE 206 and a decision of this Court in ALHAJI NUHU MUHAMMED vs. ALHAJI ADAMU AL-HASSAN AJINGI (2013) LPELR – 20372 (CA) PP. 25 – 26, PARAS. G – E. It was submitted that the respondents failed to seek and obtain prior leave of the trial Court to issue and serve the writ of summons on the 3rd appellant who is resident outside the jurisdiction of the trial Court and the appellants also failed to mark the writ as a ‘concurrent writ’ for service both within and outside the jurisdiction of the Court and limited the time within which the Appellants may appear to fourteen (14) days contrary to the provisions of the Sheriffs and Civil Process Act, which is fatal and cannot be remedied. We were urged to strike out the writ. We were also urged to hold that the Sheriffs and Civil Process Act applies to the issuance and service of the writ in this case. We were urged to set
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aside the writ for want of jurisdiction.
The arguments in support of issues 5, 6 and 7 were re-argument of issues 1 – 4 and the determination of issues 1 – 4 would determine the outcome of issues 5 – 7.
The learned counsel Emeka Akabogu Esq. with E.E. Erim Esq. for the respondents on his part, submitted that grounds 3, 6 and 7 of the appellants’ grounds of appeal should be struck out as they did not arise from the decision of the lower Court. We were also urged to deem as abandoned the appellants’ issues 6 and 7 as no relevant argument was proffered in respect of these issues. See, F.G. ONYENWE MOTORS LTD VS. F.B.N. (MERCHANT BANKERS) LTD (2013) LPELR – 21878 (CA), AGBO VS. STATE (2006) 6 NWLR (PT. 977), 545 at 575 PARA.H. and BUHARI and 2 ORS VS. CHIEF OBASANJO & 267 ORS (No. 2) (2003) 17 NWLR (PT. 850) 587.
In arguing his sole issue, the learned counsel relied on his brief of argument filed on 26/1/16 but, deemed filed on 8/6/16 as his argument in this appeal. It was submitted that Order 3 Rule 20 of the Federal High Court (Civil Procedure) Rules 2009, Sections 97 and 98 of the Sheriffs and Civil Process Act and the authorities cited and
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relied upon by the learned counsel to the appellants are only applicable to writs of summons for service outside the jurisdiction of the issuing Court. It was also argued that none of the cases is an admiralty action ‘in rem’ which the Courts have ruled to be, ‘sui generis’, which has its unique procedure for endorsement and service. See, MV S. ARAZ VS. MESSRS MV SHEEP (1996) 5 NWLR (PT. 447) 294. Also, Order 5 Rules 1 and 2, Order 7 Rules 1 and 2 of the Admiralty Jurisdiction Procedure Rules and Section 7 of the Admiralty Jurisdiction Act, Cap A5 LFN, 2004. It was submitted that they do not apply to the facts of the instant case. Further, that the premise of the Appellants’ action that the writ of summons was one for service outside jurisdiction is wrong. Further, that the service required and mandated in an admiralty action ‘in rem’ is service within jurisdiction, such service is therefore not subject to Sections 97 and 98 of the Sheriffs and Civil Process Act, which relate to service outside jurisdiction.
It was submitted that no leave is required for the issuance and service of the writ in an admiralty action ‘in rem’, See, B. L. LIZARD SHIPPING COMPANY LTD
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VS. MV “WESTERN STAR” and ORS (2014) – LPELR-24085 (CA). It was contended that service was validly effected within jurisdiction and that there was no need for leave to issue or serve the writ.
In respect of the action against the 3rd appellant as 3rd defendant, it was argued that the action is ‘in rem’ and not ‘in personam’. It was submitted that the parties agreed that there is no leave required to issue and serve a writ in an action ‘in rem’. See, MV ‘MUSTAFA’ VS. AFRO ASIAN IMPEX (2002) 14 NWLR (PT. 787) 395. It was further argued that the inclusion of the defendant is because its inclusion is mandated by the provisions of Order 5 Rule 1 of the Admiralty Jurisdiction Procedure Rules, 2011. Also, that an action can only be ‘in personam’ where the named defendant is a natural or legal person while relying on a decision of this Court in the owners of the MV ‘MSC AGATA’ and ANOR VS. NESTLE NIGERIA PLC and ANOR (2012) LPELR – 9851 (CA) PP 33 – 36, PARAS. G-G.
It was submitted that the then 3rd defendant is neither a natural or legal person and an action against it cannot be deemed to be ‘in personam’ and would only crystallize into an action
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‘in personam’ upon the appearance of the owner and suit against it in its proper name, otherwise it remains ‘in rem’.
In respect of the then 4th defendant, it was submitted that the action is ‘in personam’ but, that the 4th defendant is resident within the same jurisdiction as the res, therefore there was no need for a concurrent writ nor service outside jurisdiction. It was also argued that there is no provision prohibiting the combination of an action ‘in rem’ and an action ‘in personam’ in the same writ. It was contended that the Respondents are not in breach of any rules relating to issuance or service of ‘in rem’ or ‘in personam’ writ. Further, that the 5th appellant was served in its capacity as ‘any other ship’ under Section 5(4) (b) of the Admiralty Jurisdiction Act and that all that needs to be shown is that it is owned by the ‘relevant person’ as described in S. 5(a) and that the ‘relevant person’ is the nexus between ‘that ship’ in Section 5(4) (a) and ‘any other ship’ in Section 5 (4) (b).
?
It was concluded that by the definitive effect of Section 5(4) (b) of the Admiralty Jurisdiction Act Cap A5 Laws of the Federation, 2004, the writ of
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summons was validly served on the 5th Appellant (?MV KOTA KASTUR?) being a ship owned by Pacific International Lines (PTE) LTD, which had possession and control over the ‘MV KOTA MANIS’ at the time the cause of action arose.
In their reply brief, it was argued on behalf of the appellants that grounds 3, 6 and 7 of their grounds of appeal arose from the ruling of the lower Court. It was reargued that the respondents’ writ is fundamentally defective having been issued without the prior leave of Court for a writ meant for service outside jurisdiction, limiting the days of appearance of a foreign defendant to fourteen (14) days and failure to mark the writ as concurrent, also failure to obtain the requisite leave to effect service on the 3rd Appellant resident outside the jurisdiction of the lower Court, reference was made to pages 308, 311 and 315 of the printed records, portions of the judgment of the lower Court that gave rise to these grounds of appeal.
On the attack on issues 6 and 7 in the appellants’ brief of argument, it was submitted that these issues addressed the misdirection of the lower Court in the trial Court’s construction of
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Section 5(7) of the Admiralty Jurisdiction Act by holding that the Appellants are deemed to be resident in Nigeria thus disregarding the latter Sections of the Act from Section 5 (5) which refer to claims in the nature of towage.
With the sole issue, the necessity of obtaining a prior leave to issue and serve the writ and the necessity of marking same as ‘concurrent’ for writs to be served within and outside jurisdiction were reargued. We were urged to rely on a decision of this Court on similar facts as the present case in WESTERN STAR & 2 ORS Vs. B.L. LIZARD SHIPPING CO. LTD (2013) 12 CLRN, PAGES 161-183 at 174 and 175 LINES 2 – 6. Also, SUPERMARITIME NIGERIA LIMITED vs. EAUXWELL NIGERIA LIMITED (2016) ADMIRALTY LAW REPORTS OF NIGERIA (ALRN) PT. 2 at PAGE 44 – 32 and PURECHEM INDUSTRIES LTD VS. SPICA SHIPPING CO. LTD (2012) 3 NWLR (PT. 1287) 327. we were urged to allow the appeal and set aside the Ruling of the lower Court.
I have examined the issues raised by the parties; those of the appellants challenge the competence of the issuance and service of the writ of summons on the appellants as defendants at the lower Court. These issues are well
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captured by the sole issue formulated by the respondents thus:
“Whether in the circumstances of this case the writ of summons was issued and served in compliance with the law.”
Starting with the respondents’ preliminary point that the appellants, grounds 3, 6 and 7 should be struck out for not arising from the decision of the trial Court, I am of the view that these three grounds challenge the validity of the writ served on the 3rd appellant as well as the other appellants who are resident within jurisdiction, jointly claimed against by the respondents as plaintiffs at the lower Court which is the crux of the appeal. Similarly, the respondents made out that the appellants, issues six (6) and seven (7) did not have relevant arguments in support and should be deemed abandoned. I am of a contrary view and hold that these issues were adequately argued by the appellants even though some of the points already argued under issues 1 – 4 were reargued. The challenge of the above grounds and issues are therefore discountenanced.
It is trite that non-compliance with the issuance and service of originating processes touch on the competence of a Court to
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adjudicate over a matter before it. Where there is a defect in competence, the proceedings are rendered a nullity no matter how well conducted, see, MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 34.
There is no doubt that the 3rd appellant is ordinarily resident outside the jurisdiction of the lower Court. The service of Court processes on a defendant is a mandatory requirement that must be fulfilled before the Court can assume jurisdiction over a matter. Every originating process is mandatorily expected to be served on the defendant personally by Order 12 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009. Service of originating processes touch on the jurisdiction of the Court to adjudicate over the matter and same cannot be served by proxy through another. To start with, an originating process to be issued for service outside jurisdiction is required to be marked “concurrent” along with a writ to be served within jurisdiction. Order 3 Rules 19 and 20 of the Federal High Court (Civil Procedure) Rules, 2009 provide as follows:
Rule 19: “A plaintiff may at the issuance of an originating process or at any time during its life span, cause to be
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issued one or more concurrent originating processes each to bear the same date as the initial process marked “CONCURRENT” and have stated on it the date of issue.
Rule 20: “An originating process for service within jurisdiction may be issued and marked as a concurrent originating process with one for service out of jurisdiction and an originating process for service out of the jurisdiction may be issued and marked as a concurrent originating process with one for service within jurisdiction.”
The mark of ‘concurrent’ on the writ is therefore a condition precedent. In the present case, the Respondents failed to obtain the prior leave of Court to issue/serve the writ and did not mark it as “concurrent” as mandatorily required by law and the Rules of Court before service of the writ on the appellants as defendants. The omission is fatal and stripped the lower Court of its jurisdiction to have entertained the matter. This Court in the case of PURECHEM INDUSTRIES LTD VS. SPICA SHIPPING CO. LTD. (supra) held that a writ for service outside jurisdiction not having been issued and endorsed as a concurrent writ is vitiated against all the Defendants, same
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was held to have been rightly struck out. The present case is worse, in that the writ was to be served outside Nigeria. Further, Order 7 Rule 1 (1) of the Federal High Court (Civil Procedure) Rules (2009) provides that a writ for service outside jurisdiction ought to be endorsed and the time within which the Defendants may enter appearance shall not be less than thirty (30) days, failure to comply with this requirement is fatal to the writ of summons.
In the case of the OWNERS OF MV ?ARABELLA? VS NIGERIAN AGRICULTURAL INSURANCE CORPORATION (supra) cited and relied upon by the learned counsel to the appellants, the Supreme Court held that the issuance of a writ of summons which was not endorsed for service on the defendants outside jurisdiction was rightly declared void by the trial Court because of the mandatory nature of the provisions of Section 97 of the Sheriffs and Civil Process Act 56, LFN, 2004 which provides as follows:
“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
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Capital Territory, have endorsed thereon a notice to the following effect (that is to say) –
“This summons (or as the case may be) is to be served out of the …..
State (or as the case may be) …… and in the ……State (or as the case may be).”
While Section 98 provides thus:
“A writ of summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such State or the Capital Territory and shall in that case be marked as concurrent.”
The provisions of Section 97 above was couched in mandatory terms, therefore any service of a writ without the proper endorsement as stipulated in the above section is not a mere irregularity that could be waived or over looked but, it is a fundamental defect that renders the writ incompetent. The learned counsel to the respondent had argued that the 3rd appellant could and was properly served through the 4th appellant by proxy since the latter is resident within jurisdiction, therefore that there would be no need to issue a concurrent writ and no need to serve same outside jurisdiction. In my humble
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view, there was no law or rule of Court to back up this argument of service by proxy which I hereby discountenance. Non-compliance with Sections 97 and 98 above are not mere irregularities as it goes to the competence and jurisdiction of the Court. It renders the writ null and void.
Further, the writ of summons taken out by the respondents gave the appellants fourteen (14) days from the date of service to satisfy the claim or file their memorandum of appearance whereas, Order 7 Rule (1) of the Federal High Court (Civil Procedure) Rules 2009 provides thus:
1. (1): “A defendant served with an originating process shall within thirty days file in the Registry, along with the processes mentioned in Order 13 Rule 2(1), the original and copy of a duly completed and signed memorandum of appearance as in Form 11 with such modifications or variations as circumstances may require.”
While Section 99 of the Sheriffs and Civil Process Act provides thus:
99. “The period specified in a writ of summons for service under this part as the period within which a defendant is required to answer before the Court to the writ of summons shall be no less than thirty
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days after service of the writ has been effected, or if a longer period is prescribed by the rules of the Court within which the writ of summons is issued, not less than that longer period.”
The above provisions would be applicable if in the first place, the writ was properly endorsed as concurrent and property served. Where the writ is properly endorsed for service outside jurisdiction the period within which the defendants should enter appearance ought not to have been abridged by the plaintiffs, see NPA VS. EYAMBA (supra). Non compliance with the requirements for the issuance of the writ of summons is fatal as the condition precedent has not been met; this has vitiated the entire proceedings. I disagree with the view of the learned trial judge that the Federal High Court Rules and the Sheriffs and Civil Procedure Act are not applicable in this case but, rather the Admiralty Jurisdiction Act, 2004 and the Admiralty Jurisdiction Procedure Rules, 2011. The trial Court in its judgment, did not justify the fourteen (14) days on the writ of summons which the appellants as defendants were given within which to enter appearances. The trial Court did not also
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explain or justify how it arrived at its decision outside the Rules of that Court.
In sum, I hold that the jurisdiction of the lower Court was vitiated by the incompetent writ of summons taken out on 3rd April, 2013. Further, the entire proceedings and decision of the learned trial judge based on the incompetent writ of summons is hereby set aside. The appeal is meritorious and is hereby allowed. The writ of summons in suit No FHC/L/CS/427/13 taken out on the 3rd day of April, 2013 is hereby struck out.
I award costs of N50,000.00 (Fifty Thousand Naira) to the appellants.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the Judgment delivered by my learned brother CHIDI NWAOMA UWA JCA.
I agree with the reasoning and conclusion. I also allow the Appeal.
I abide with the consequential Orders and Order as to costs.
HAMMA AKAWU BARKA, J.C.A.: I agree.
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Appearances:
Ayo Olorunfemi with him, Temitayo GajiFor Appellant(s)
Emeka Akabuogu, Esq. with him, Enare Erim, Esq.For Respondent(s)
Appearances
Ayo Olorunfemi with him, Temitayo GajiFor Appellant
AND
Emeka Akabuogu, Esq. with him, Enare Erim, Esq.For Respondent
