Caribbean Trading & Fidelity Corporation Vs Nigerian National Petroleum Corporation (2002)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA, J.S.C.

The question which gave rise to this appeal came before the High Court of Lagos State by way of preliminary objection to the originating summons issued at the instance of the respondent whereby the respondent sought to set aside an award made on 28th March, 1990 by the arbitrators/respondents in favour of the appellant which was, at all material times, a company resident in the United States of America. The substance of the preliminary objection was that the originating summons had been issued without the leave of the High Court as stipulated by Order 2 r 4 of the High Court of Lagos State (Civil Procedure) Rules 1972 (the Rules) which was then the applicable Rules. Those rules have now been replaced by the High Court of Lagos State (Civil Procedure) Rules 1994. However, reference in this judgment is to the 1972 Rules.

Order 2 r 4 provided that:

Subject to the provisions of Part VII of the Sheriff and Civil Process Act, no writ of summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of the Court or a Judge in Chambers.

The Rules did not make similar provisions in regard to issue of originating summons. However, notwithstanding that there is a difference between a writ of summons and an originating summons, the court below held that Order 3 r 4 applied to originating summons as it applied to writ of summons. The main question which arises in this appeal is whether having so held it should not have declared the originating summons issued, without leave, to commence the proceedings a nullity by reason of non-compliance with Order 2 r 4. The circumstances in which that question arose are as follows:

The originating summons in question was filed on the 26th June, 1990. The address for service of the appellant endorsed on it was:

c/o Mr. M. S. Akinlolu, 33 Kano Street, Ebute Metta. The matter came before the High Court first on 16th July, 1990. On 20th September, 1990 the respondent brought an application for accelerated hearing of the application. An affidavit of service placed before the High Court indicated that service had been effected on all parties on 20th September, 1990. The application for accelerated hearing was adjourned to be heard by the trial court on 27th September, 1990. On that day one Mr. Olanihun claiming to be appearing for Mr. Akinlolu informed the court that the arbitration proceedings in which Mr. Akinlolu had been counsel for the appellant having been concluded, Mr. Akinlolu was no longer agent for the respondent. The trial Judge (Omotosho, J., as she then was) took the view, notwithstanding opposition by the respondent’s counsel, that although Mr. Akinlolu was duly served, the court could not force him to represent the appellant. She thereon decided that the appellant be served out of the jurisdiction. She explained:

Right up to that stage, there was nothing to show on the face of the originating summons and the Motion for accelerated hearing that service on the Respondent will be service outside the jurisdiction of this Court. It was after hearing all parties present on the issue of service duly acknowledged for and on behalf of Akinlolu for the respondents, that the Court decided that it would serve the interest of justice that the Respondents, themselves be served and Akinlolu released from his obligations as agent since he claimed not to be an agent of the Respondents.

The application for accelerated hearing was then adjourned to 16th October, 1990. However, on 12th October, 1990, Mr. Olanihun filed a notice of preliminary objection:

That the originating summons was issued without leave of the court as stipulated by Order 2 rule 4 and in compliance with the Sheriffs and Civil Process Act and should be set aside.

Ruling on the preliminary objection the trial Judge recalled what she had stated in her ruling on the occasion when service out of the jurisdiction had been ordered as follows:

……..because of the urgency attaching to the matter, the court shall dispense with the extra time it will take to bring a motion for service outside the jurisdiction and for substituted service. Instead I shall and I hereby make an order that the originating summons and all other processes in this case shall be served on the Respondent in the United States of America, a place outside the jurisdiction of this Court by Courier Service which will take about three or four days to reach the Respondents.

Being of the view that the Court had power to order service out of the jurisdiction at any time depending on the circumstances of the case; that in the case in hand; the Court had on record sufficient material and affidavit evidence to justify an Order for service out of the jurisdiction; and, that Rule 14 gave the Court discretion to make order for service by Air mail, she dismissed the preliminary objection, but not without considering other objections which are not material at this stage of the narration of the background facts.

The Court of Appeal (Kolawole, Tobi and Ubaezonu, JJC.A.) dismissed the appellant’s appeal from that decision. Tobi, JCA, who delivered the leading judgment, with which Kolawole and Ubaezonu, JJ.C.A. agreed, reasoned that since Order 1 r 2 defined Originating Summons as every summons other than a summons in a pending cause or matter, the leave requirement in Order 2 r 4 covered the issuance of originating summons. However, he held that the trial Judge was right when she held that nothing was shown on the originating summons to indicate that it was for service outside the jurisdiction. He justified the address for service endorsed on the originating summons by the fact that Mr. Akinlolu acted for the appellant in the arbitration and that up to the time the originating summons was issued there was no notice to third parties, the respondent included, that his professional or agency relationship had ceased. Tobi, JCA, considered some other incidental issues of substituted service, service by courier and the short return date set by the judge. Whatever importance these incidental issues may have assumed in the court below, they do not appear to me to be of much importance in this appeal, having regard to what I consider to be the decisive question, which is whether the originating summons was a nullity by reason of its being issued without leave.