WESTERN UNION MONEY TRANSFER SERVICE V. LT COL. ROY M.D. ALLI & ORS
(2012)LCN/5657(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of November, 2012
CA/C/144/2008
RATIO
JURISDICTION: HOW WILL THE COURT DETERMINE WHETHER IT HAS JURISDICTION TO ENTERTAIN A MATTER
Where a court’s jurisdiction is challenged, the court would under S.6 of the 1999 Constitution consider, the plaintiff’s claim before it, in order to decide, whether it has jurisdiction to entertain it or not, Adeleke Vs. O.S.H.A (2006) 16 IGP (2006) 5 NWLR pt 972 Page 146. PER UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: EFFECT OF FAILURE TO OBTAIN LEAVE OF COURT WHERE LEAVE IS REQUIRED
Also failure to obtain leave of court where leave is required is fatal. Obtaining leave has further been held to be a threshold issue and a condition precedent to the court exercising its jurisdiction.
See the owners of the MV “Arobella” vs. Nig Agricultural Insurance Corp. (2008) 11 NWLR pt 1097 page 182 where the court held that:
“Where a Defendant is outside jurisdiction, no writ for service out of jurisdiction can be issued except by leave of the court. That the issue of writ 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… non compliance with the Act, … went to the root of the jurisdiction and competence of Court” See also Ezomo Vs. Oyokhire (1985) 1 NWLR (pt .2) 195 at 208 paras E-H, Nwabueze Vs. Obi-Okoye.
In MV “Arabella” (supra) the court held.
“… it is now firmly settled that Rules of Court are not mere rules, but partake of the nature of subsidiary legislation by virtue of section 18 (1) Interpretation Act and therefore have the force of law”. PER UZO I. NDUKWE-ANYANWU, J.C.A.
JURISDICTION: WHAT IS THE PROPER ORDER TO MAKE WHERE A COURT LACKS JURISDICTION
Where a court lacks jurisdiction to adjudicate over a case the Proper order to make is that of striking out, the matter. The trial court ought to have struck out this matter for lack of jurisdiction. PER UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: WHETHER COURTS CAN EXERCISE JURISDICTION TO ORDER SERVICE OF A WRIT OF SUMMONS OUTSIDE THEIR TERRITORIAL JURISDICTION
In Onyema vs. Oputa (1987) 18 NSCC (Pt.2) 900; Ndaeyo vs. Ogundaya (1977) 1 SC 11; Nwabueze vs. Obi-Okoye (1988) 10-11 SCNJ 60/73 and Ezeobi v. Abang (2001) FWLR (Pt.58) 652 it was held that generally, Courts exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction. They have no jurisdiction to order service of a writ of summons outside their territorial jurisdiction except where authorized by statute or a rule having statutory force. PER JOSEPH TINE TUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
WESTERN UNION MONEY TRANSFER SERVICE – Appellant(s)
AND
1. LT COL. ROY M.D. ALLI
2. FIRST BANK OF NIGERIA PLC
3. VANGUARD MEDIA LIMITED – Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Cross River State delivered on 2nd February, 2007. The 1st Respondent as plaintiff took out a writ against, the Appellant as the 2nd defendant and First Bank of Nigeria Plc 2nd Respondent and Vanguard Media Ltd as 3rd Respondent in this appeal. The 1st Respondent of the material time 26th April, 2004 claimed to be in the Nigeria Army serving in Calabar. He also claimed to have sent N10,000.00 to one Sergeant Adamu Salihu Adamu also of the Nigeria Army Zaria. 48 hours after this transaction via Western Union, the money was not received in Zaria. On enquiry, the 1st Respondent was informed that the money was seized as he was suspected to be a terrorist. This incident was thereafter reported by the Vanguard Newspapers with the caption “You are a terrorist”
Thereafter, the 1st Respondent sued First Bank Nigeria Plc as 1st Defendant, Western Union Money Transfer Services as and Defendant and Vanguard as 3rd Defendant. The 1st Respondent as plaintiff claimed the following reliefs against the defendants jointly and severally.
(a) 10,700.00 being refund of money unlawfully seized by the 1st and 2nd Defendants.
(b) A Declaration that he is not a terrorist
(c) 2 Billion (Two Billion Naira) as damages for defamation of his character, resulting in his loosing promotion and being put under threat and investigation by Military authorities.
When the 2nd Defendant/Appellant got to know about the action, it put in a conditional appearance and filed a Preliminary Objection against the competency of the suit and prayed for this suit to be struck out. The grounds for this objection are as follows:-
1. That the person named as 2nd Defendant in the Writ of Summons (and other processes) in this suit is not a person known to law.
2. Alternatively or in addition, that the 2nd Defendant was never served with the Writ of Summons (or any other process) in this suit as required by law.
3. Further alternatively or in addition, the Plaintiff has no cause of action against the 2nd Defendant, and consequently the 2nd Defendant is wrongly and improperly named as a Defendant in this suit.
The 1st Respondent did not react to this Preliminary Objection nor file any counter Affidavit. The trial Judge in his considered ruling dismissed the Appellant’s Preliminary Objection. The trial Judge held inter alia.
The issuance and service of the writ on the Appellant at 35 Marina, Lagos without leave was valid and proper service; and 1st Respondent’s claims disclosed a cause of action against the Appellant.
Being dissatisfied with this ruling, the Appellant filed his notice and 4 grounds of appeal. The Appellant also filed his Appellant’s brief on 22nd May, 2009 but deemed properly filed and served on 19th May, 2010. In it the Appellant articulated 3 issues for determination as follows:
1. Whether the person sued as the 2nd Defendant (“Appellant”) is a juristic person and as such properly sued.
(Ground 1).
2. Given that the 2nd Respondent did not obtain leave of the High court to issue and serve the writ of Summons purportedly served on the Appellant, whether the issuance of the Writ for service outside the jurisdiction of the cross River State High Court and its subsequent service at 35 Marina, Lagos are proper and effective in law.
(Grounds 2 and 3)
3. Whether the Statement of claim discloses a reasonable cause of action against the Appellant.
(Ground 4)
Also filed is the Appellant’s Reply Brief on 26th September, 2010 but deemed as properly filed and served on 27th September, 2012.
The 1st Respondent filed his brief on 28th August, 2012 but deemed properly filed and served on 27th September, 2012. The 1st Respondent adopted the 3 issues as articulated by the Appellant.
2nd Respondent filed his brief on 30th March, 2011 but deemed properly filed and served on 15th May, 2012. The 2nd Respondent articulated only one issue for determination “whether the person sued as the 2nd defendant is a juristic person capable of being sued.”
The 3 issues as articulated by the Appellant are all on whether the court had jurisdiction over this case as it is so filed.
On issue 1, the appellant had submitted that the plaintiff/1st Respondent had sued the Appellant using a name that is not that of the Appellant. The Appellant had by a Preliminary Objection prayed the court to strike out this case as the proper parties were not before the court. For an action to be properly constituted so as to vest jurisdiction on the court to adjudicate on it, there must be a competent plaintiff and a competent defendant. Ataguba & Co. vs. Gura Nig. Ltd (2005) ALL FWLR pt 263 page 1219 (2005) SCNJ page 139.
Where a court’s jurisdiction is challenged, the court would under S.6 of the 1999 Constitution consider, the plaintiff’s claim before it, in order to decide, whether it has jurisdiction to entertain it or not, Adeleke Vs. O.S.H.A (2006) 16 IGP (2006) 5 NWLR pt 972 Page 146.
The Appellant complained of the earliest opportunity, by giving notice of a Preliminary Objection attacking the competency of the court to adjudicate on this case.
Correspondingly, the court should deal with any attack on its competency to adjudicate on any case. See Nnonye Vs. Anyichie (2005) 2 NWLR Pt 910.
Where the Appellant at the earliest opportunity filed a Preliminary objection stating “that even though I am in court on protest, the name on your writ is wrong.”
This should have put the 1st Respondent on the enquiry, to do a thorough investigation and come up with the full and correct name of the Appellant. This can actually be effected by an amendment which is not fatal to the suit. As an amendment it can be done anytime before judgment.
The issue of service of process is the second attack on the jurisdiction of the trial court. The Learned counsel to the Appellant submitted that the fact that the Appellant is a foreign company, no valid process can be served on it without, the leave of court vide O5 R14 of the High Court of Cross River State Civil Procedure Rule 1987 and S. 97 Sheriffs and Civil Process Act Cap 6 LFN 2004, Nwobueze Vs. Obi-Okoye (1988) 3 NSCC Vol . 19 page 53, 1988 4 NWLR pt 91 page 664.
The Appellant’ being a foreign company would be served according to 012 R8 High Court of Cross River State Civil Procedure Rules 1987 which provides as follows.
“When the suit is against a corporation or a company authorized to sue and be sued in its name… the writ or other documents may be served, subject to the enactment establishing such corporation or company or under which it is registered as the case may be, by giving the same to any director, secretary or other principal officer, or by leaving it at the office of the corporation or company.” (emphasis ours).
The Process served at 35 Marina, Lagos ought to have been delivered to any director, Secretary or other principal officer, or by leaving it at the office of the Appellant.
Also failure to obtain leave of court where leave is required is fatal. Obtaining leave has further been held to be a threshold issue and a condition precedent to the court exercising its jurisdiction.
See the owners of the MV “Arobella” vs. Nig Agricultural Insurance Corp. (2008) 11 NWLR pt 1097 page 182 where the court held that:
“Where a Defendant is outside jurisdiction, no writ for service out of jurisdiction can be issued except by leave of the court. That the issue of writ 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… non compliance with the Act, … went to the root of the jurisdiction and competence of Court” See also Ezomo Vs. Oyokhire (1985) 1 NWLR (pt .2) 195 at 208 paras E-H, Nwabueze Vs. Obi-Okoye.
In MV “Arabella” (supra) the court held.
“… it is now firmly settled that Rules of Court are not mere rules, but partake of the nature of subsidiary legislation by virtue of section 18 (1) Interpretation Act and therefore have the force of law”.
Inspite of all these authorities the trial court discountenanced them and relied on Famfa oil Ltd Vs. AGF (2003) 8 NWLR pt 852 page 453 stating that setting aside the defective service would amount to succumbing to technicalities.
The learned counsel for the Appellant submitted that 35 Marina was not their Headquarters for business. Even if it were it still required leave since it was outside the jurisdiction of the Cross River State High Court. Counsel urged the court to uphold the Preliminary Objection on this issue and strike out the case and allow this appeal.
In reply counsel to the 1st Respondent submitted that inspite of the provision of S. 54 (1) of the Companies and Allied Matters Act, a foreign company Registered in Nigeria but which carries on business in Nigeria, has presence in Nigeria. It can sue and be sued where liable in Nigeria, See R. I. T. Z & Co. KG vs. Techato Ltd. (1999) 4 NWLR pt. 598) page 298. E. I. I. A. vs. C. I. E. Ltd. (2000) 4 NWLR Pt. 969 (Page 114). Counsel urged the court to hold that the Appellant can be sued in Nigeria.
In considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it, by critically looking at the Writ of Summons and the statement of claim, Gafar vs. Govt. of Kwara State (2007) 4 NWLR (Pt.1024) Page 375: Onuorah vs. KRPC (2005) 6 NWLR (Pt. 921) Page 393, Tukur vs. Govt of Gongola State (1989) 4 NWLR (Pt. 117) Page 517, Nkuma vs. Odili (2006) 6 NWLR (pt. 977) page 587.
The Appellant in this case complained that the writ of summons was served, on it in Lagos without the leave of court and the person served was not the right party.
It is trite law that a writ of summons issued and served outside the jurisdiction without the leave of the court, is liable to be set aside, except the defendant had taken any positive step in the Proceedings after becoming aware of the defects. Such positive steps would include:
(a) Filing conditional appearance.
(b) Filing of his statement of defence.
(c) Anything done in on effort to defend the action so commenced by the defective process.
Akintunde vs. Ojo (2002) 4 NWLR (pt. 757) page 284, NEPA vs. Onoh (1997) 1 NWLR (Pt. 484 (page 680).
Failure of a plaintiff to obtain the leave of court to issue and serve a writ of summons on a defendant outside the jurisdiction of the court renders the issuance and service of such writ void not withstanding the appearance and participation of the defence in the proceedings. This is because, a writ unlike other processes is on originating court process and it requires the Registrar’s endorsement NNPC vs. Elumah (1997) 3 NWLR (pt. 492) page 195, BBN vs. Olayiwola (2001) 6 WRN page 141.
An application for leave to issue a writ which is to be served outside jurisdiction is very important; It is thus not a mere formality but a condition precedent. Where no prior leave is obtained, the writ .of summons is said to be issued without due process and will be set aside because the breach is fundamental. Akintunde vs. Ojo (2002) 4 NWLR (Pt. 757) Page 284, Odua Investment Co. Ltd. vs. Talabi (1997) 10 NWLR (Pt. 523) Page 1.
The appellant filed a notice of Preliminary Objection and a conditional appearance. The Preliminary objection categorically catalogued the issues that robbed the court of jurisdiction. The 1st Respondent did nothing to remedy the anomalies complained of by the Appellant. The question as to the name could have been corrected with a mere amendment. However on the issue of a service outside jurisdiction, this cannot be corrected by a mere amendment as it is fundamental.
This brings to the fore the different types of jurisdictions namely: jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction on the court where the Constitution or a statute or any provision of the Common Law says that the court does not have jurisdiction. A litigant may submit to the procedural jurisdiction of the court; for instance where the writ has been served outside jurisdiction without leave. Ndayako vs. Dantoro (2004) 13 NWLR pt 889 page 187.
Even though the Appellant could have waived his right and submit to the jurisdiction of the court, but it didn’t. The Appellant refused to waive its right and submit to the jurisdiction of the court. The service of the Writ of Summons is on originating process and any defect in it goes to the root of the case, as it is, fundamental. The 1st Respondent in his writ taken out of the High Court of Calabar was served on the 1st and 2nd defendants in Lagos. See the address of service on the writ. No leave of court was obtained before the writ was issued for service in Lagos. This is a fundamental error that cannot be cured. This fundamental error has robbed the court of its jurisdiction to deal with this case. Where a court lacks jurisdiction to adjudicate over a case the Proper order to make is that of striking out, the matter. The trial court ought to have struck out this matter for lack of jurisdiction.
The 2nd issue of service outside jurisdiction is a fundamental error that robbed the court of jurisdiction to continue.
The 3rd issue in this appeal is no longer a live one. One cannot go into the issue of whether the 1st Respondent had a cause of action where the court lacked jurisdiction to entertain this suit.
The trial Judge was therefore in error when it refused to uphold the Preliminary Objection. This appeal is meritorious and therefore allowed. The ruling of the trial court is hereby set aside. The Respondents suit before the lower court is struck out for want of jurisdiction.
I make no orders as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: I have read the draft of the lead judgment delivered by my learned brother Uzo. I. Ndukwe-Anyanwu, JCA, and fully agree with the conclusion that the appeal is meritorious and deserves to succeed.
I join in allowing the appeal, setting aside the decision by the High Court contained in the Ruling delivered on the 2/7/2007 and striking out the 1st Respondent’s suit for being incompetent.
Parties to bear their respective costs of prosecuting the appeal.
JOSEPH TINE TUR, J.C.A.: I have read an advance copy of the judgment delivered by my Lord, Uzo I. Ndukwe-Anyanwu, JCA and I concur with the reasoning and conclusions arrived at. The addresses for service of the process were as follows:
”FOR SERVICE ON:
1. 1ST DEFENDANT,
FIRST BANK OF NIGERIA PLC,
35 MARINA – LAGOS.
2. WESTERN UNION MONEY TRANSFER SERVICE, WESTERN UNION PRODUCT DEPARTMENT, C/O FIRST BANK OF NIGERIA PLC. 35 MARINA – LAGOS.
3. VANGUARD MEDIA LIMITED, HARCOURT STREET, CALABAR.”
Clearly, the writ and statement of claim filed on 13th January, 2005 were issued “IN THE HIGH COURT OF NIGERIA, IN THE CALABAR JUDICIAL DIVISION, HOLDEN AT CALABAR.”
However, service was to be at 35 Marina – Lagos Registrars of the High Court are empowered to issue writs of summons under order 5 rule 1 and 2 of the defunct High Court (Civil Procedure) Edict No.7 of 1987 applicable at the time this writ was issued.
It was held in the owners of the MU. “Arabella” vs. Nigeria Agricultural Insurance corporation (2008) 11 NWLR (Pt.1097) 192 per Ogbuagu, JSC at page 206 that:
“…Issuance of civil process and service of the same, are distinct though inter-related steps in civil litigation. A writ may be valid while its service, (as in the instant case leading to this appeal), may suffer from some defect. See case of Adegoke Motors Ltd. vs. Dr. Adesanya & Anor (1989) 3 NWLR (Pt.109) 250 at 292-296; (1989) 5 SCNJ 80. This is also settled that where a summons, has been regularly issued without compliance with the Act, that is void, and to be set aside, is the service and not the writ itself. See Nwabueze & Anor vs. Obi Okoye (Infra).
The appellant in his said brief, having conceded that no leave of court was sought and obtained for the service on the respondent, of the said writ of summon 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 this appeal. What is more, as rightly submitted in the respondent’s brief, neither section 19 of the Federal High Court Act, nor any other Act, expressly or otherwise, excluded the operation of the Act and order 10 rule 14 of the Federal High court (Civil Procedure) Rules. The provisions of the Act, guide the service of the process of the Federal High Court as a court established by the National Assembly. See the case of Union Beverages Limited vs. Adamite Co. Ltd. (1990) 7 NWLR (pt.162) 348 C.A. Service of a writ out of jurisdiction is not a matter of the Courts discretion. Not only is it provided for in the said rules of the Federal High Court which provisions, must therefore, be obeyed, it is crucial to the prosecution of an action in the Court. This is why, without proper service, it follows without more that no valid appearance; can be entered by the defendant, although a defendant is entitled to and can enter an appearance on protest or a conditional appearance.
I note that even the issuance of the said writ of summons which was not endorsed for service of the defendants outside jurisdiction, was rightly declared by the learned trial Judge, as void. This is because of the mandatory nature of the provision of Section 97 of the Act which provide as follows:
“Every writ of summons for service out of the state in which it was issued shall in addition to any endorsement of notice required by law of such state … have endorsed thereon, a notice to the following effect…” this summons is to be served out of the state… and in the State of …”
The failure to obtain leave to issue and serve the writ of summons outside the state or to endorse that service is to be effected outside the State, etc, are conditions precedent for the trial Court to exercise jurisdiction. See also Bello vs. National Bank of (Nig.) Ltd. (1992) NWLR (Pt.246) 206 at 217 -218.
At page 208 of the Owners of the MU “Arabella” supra Ogbuagu, JSC concluded that:
“…where a defendant is outside jurisdiction, no writ for service out of jurisdiction can be issued except by leave of the Court. That the issue of the writ 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.”
In Onyema vs. Oputa (1987) 18 NSCC (Pt.2) 900; Ndaeyo vs. Ogundaya (1977) 1 SC 11; Nwabueze vs. Obi-Okoye (1988) 10-11 SCNJ 60/73 and Ezeobi v. Abang (2001) FWLR (Pt.58) 652 it was held that generally, Courts exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction. They have no jurisdiction to order service of a writ of summons outside their territorial jurisdiction except where authorized by statute or a rule having statutory force.
The case of Famfa Oil Ltd. vs. Attorney-General of the Federation & Anor (2005) 18 NWLR (pt.852) 453 relied upon by the learned trial Judge has no application to the facts before him and in this appeal. In that case the originating summons was not signed by the learned trial Judge but by the Registrar of the Federal High Court, Abuja contrary to order 7 rule 8 of the Federal High Court Rules 2000. The order and rule provided that “An originating summons is issued upon its being signed by a Judge in Chambers.” Service was not to be effected outside the Court’s jurisdiction. The Supreme Court held at page 467 paragraphs “G-H” per Belgore, JSC (as he then was) that:
“…The applicant is not the one to take the summons to the Judge. This is a purely administrative matter of the court’s registry which does not involve the applicant. Thus, failure of the Judge to sign the originating summons is mere procedural irregularity and it cannot by fig of imagination be placed on the shoulders of the plaintiff.
Alhaji Dahiru Saude vs. Alhaji Hakin Abdullahi (1989) 4 NWLR (Pt.116) 387, (1989) 3 NSCC (Vol.20) 177, 178. A procedural irregularity should not vitiate a suit once it can be shown that no party has suffered miscarriage of justice.”
The preliminary objection filed by the 3rd Defendant/applicant and supported by affidavit at page 67 of the printed record reads thus:
“AND TAKE NOTICE that the grounds upon which this application is brought are as follows:
(i) The 3rd defendant was incorporated under the companies and Allied Matters Act and has its corporate Headquarters in Lagos State.
(ii) No writ of summon or other originating process has been served on the 3rd defendant as required by law.
(iii) The leave of court was not obtained before the writ was issued for service out of jurisdiction in compliance with order 5 rule 6 of the High Court Rules.
(iv) The proper endorsement on the writ for service out of Jurisdiction was not made in compliance with the provisions of the Sheriffs & Civil Process Act.”
The grounds upon which the Notice of preliminary Objection in the lower Court were made are not on all fours with those in Famfa Oil Ltd. vs. Attorney-General of the Federation & Anor supra.
The learned trial Judge misconceived the purport of the preliminary objection.
I strike out the suit in the lower court as being incompetently instituted. I abide by the orders made by my Lord.
Appearances
Dr. K. U. K. Ekwueme Esq.
With him E. S. Makanjuola Esq.For Appellant
AND
Emmanuel Sani Esq. for the 1st Respondent
Alex Umo Esq.
With him Emilia Ekeng (Mrs) for 2nd RespondentFor Respondent
