Alhaji Arasi Suberu & Anor V. African Continental Bank & Ors (2002)

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DALHATU ADAMU, J.C.A. 

This is an interlocutory appeal against the decision of the High Court of Justice, Ibadan refusing to grant Leave to issue a Concurrent Writ for Service outside Jurisdiction. The Plaintiff/Appellant applied for a writ of summons against the 3rd Defendant/Respondent for service within jurisdiction and two Concurrent writs of summons against the 1st and 2nd Defendants/Respondents for service outside the jurisdiction of the Court.

The original writ against the 3rd Defendant/Respondent was issued on 4/4/89 and served on him. The bailiffs however mistakenly also proceeded to serve the 1st and 2nd Defendants/Respondents before leave to issue and serve the concurrent writs outside jurisdiction was obtained. For ease of reference, the Plaintiff/Appellants will hereinafter be referred to simply as Appellants while the Defendants/Respondents will also be simply referred to as Respondents in this judgment. All the three Respondents entered conditional appearance at the trial court and in response to the writs served them. The 1st and 2nd Respondents also made or filed a notice of preliminary objection on the grounds that leave was not obtained before serving them outside jurisdiction. Before the preliminary objection was heard, the 1st Appellants applied for leave to issue and serve two concurrent writs on the 1st and 2nd Respondents in Lagos outside the jurisdiction of the trial court. This Application was granted on 5/12/98 and the Registrar of the trial court issued two Concurrent writs for service on 1st and 2nd Respondents outside jurisdiction on the same date.

On 2/5/90, the 1st and 2nd Respondents filed a formal application to set aside the Concurrent writs of Summons dated 4/4/89 on the ground that no leave was obtained before the issuance and service of the said Concurrent writs on them. On 15/12/90, the learned Judge of the trial court, Oluborode J (as he then was) gave a considered Ruling and held inter alia that the Concurrent writs served on them without leave was invalid. The said concurrent writs were therefore set aside. However, the concurrent writs issued on 5/12/89 with leave to serve the 1st and 2nd Respondents were refilled and their lifetime extended on 11/2/91.

They were then served afresh on the 1st, 2nd and 3rd Respondents.

Upon this second service, the 1st and 2nd Respondents again entered a conditional appearance while the 3rd Respondent filed a notice of preliminary objection against the issuance and service of the refiled or revived concurrent writs on them, their objections were dismissed by Aderemi J. (as he then was) on 26/3/93. Thereafter the Appellant served an amended statement of claim on all the three Respondents who also in response applied for extension of time to file their respective statements of defence. Subsequently on 17/5/94 and 2/5/97 the Respondents again challenged (or re-challenged) the issuance and service of the concurrent writs on them even though with leave on the ground that the leave obtained for the concurrent writs of 5/12/89 could not cure the invalidity of the original writs of 4/4/89. This time the learned Judge of the High Court (Adeniran J.) upheld the Respondents’ objection or challenge against the issuance and service of the concurrent writs (even though with leave) on the 1st and 2nd Respondents. The said writs were consequently declared invalid and set aside. After this Ruling which was delivered on 3/4/98, the Appellant’s counsel made another fresh application for leave to issue another writ (or concurrent writs ) but on 3/7/98 the learned Judge again refused the application on grounds similar to those in his earlier Ruling, of 3/4/98. The present appeal is against the two rulings of the learned trial Judge (i.e. on 3/4/98 and 3/7/98) setting aside the concurrent writs issued and served with leave on 15/12/89 and refusing the appellant’s application to issue fresh writs .

In their two notices of appeal, the Appellants all-together filed four grounds of appeal (3 in the first notice and one in the second notice). From their four Grounds of appeal, the Appellants have, in their brief of arguments, filed on 18/9/2001 which was adopted in accordance with the rules of this court, formulated the following two Issues for determination: –

“1. Whether or not the learned trial Judge misdirected himself (sic) on the interpretation of the Ruling of Oluborode J. invalidation (sic) the concurrent writs of Summons dated 4/4/89 and also misconceived the nature of the Application of the Respondent and that of Concurrent Writ of Summons issued with leave on December 1989 and thereby came to a wrong conclusion that the two writs are the same and that the latter (sic) could not be re-issued. (Underlining supplied in the brief).

2. Whether or not the learned trial Judge exceeded his jurisdiction by entertaining and deciding the objections of the Respondents, when the same point had been raised by them and decided against them by his learned brother Aderemi, J. (as he then was of coordinate jurisdiction.”

In the Respondents’ brief filed on 28/11/2001 which was also adopted in accordance with the rules of this court, two issues are also framed which in my view correspond with and are the same with the Appellant’s issues. The two issues formulated in the Respondents’ brief are as follows:-

“1. Whether any writ of summons original or concurrent has been issued with leave of court before 4th April, 1989 and/or after the invalidation of the writ of summons dated 4th April, 1989 by Oluborode J. in a considered Ruling dated 5th December, 1990 (page 9 of the Records):

2. Whether the learned trial judge was not right to have held that the Writ of Summons issued and served on the 1st and 2nd Defendants remain invalid and service on them remain set aside having said so in his Rulings dated 3/4/2001 and 3/7/2001”.

As the Appellant’s Brief has properly related or tied their two issues to the grounds of appeal, I will rely and adopt the Appellant’s issues in this judgment. Under issue one of the said Appellant’s brief, it is contended that the issue before Oluborode J., was the validity of the concurrent writ dated 4/4/89 issued and served on the 1st and 2nd Respondents without leave to issue and serve it outside the jurisdiction of the trial court. Thus the learned Judge rightly held the issuance and service of the said Concurrent Writ on the 1st and 2nd Respondents as invalid and accordingly set it aside. It is submitted that the ruling has become spent after its delivery and it cannot affect any other Writ issued before or after the said Ruling. Thus it is further submitted in the brief that the reasons given in the ruling of Adeniran J on 3/4/98 to the effect that the writ of summons subsequently issued and served on the 1st and 2nd Respondent subsequent to the ruling of 5/12/90 remained invalid and erroneous because the concurrent writs subsequently issued and served on the said Respondents with leave are separate and different from the one earlier set aside for being issued without leave. It is explained that the concurrent writs which had lapsed, were not and could not have been revived or reissued. By the ruling of Oluborode J. of 5/12/90 setting aside the irregularly issued writs, the said writs were rendered in law as if they were never issued and as such they cannot affect the subsequent writ taken or issued with leave – See MCJOY V. U.A.C. LTD. (1962) AC 152 cited in support of the submission – See also page 38 of the record where it is averred in the Appellant’s counter affidavit that the writs issued or re-issued with leave on 5/12/89 and with their life extended to 11/12/91, were not the same with those earlier declared a nullity for their irregularity. Reference is also made in the brief to the ruling of Aderemi J. (as he then was) dated 26/3/93 when dealing with the subsequent writs wherein he stated that he would not ignore the fact that the prerequisite leave was obtained on 5/12/89. The brief also refers to Order 5 Rule 13 of the High Court (Civil Procedure Rules) 1988 of Oyo State which governs the issuance and service of writs of summons and concurrent writs and is applicable to the present case. The relevant provisions of the rules (Supra), rule 13(1) (2) and (3) are reproduced in the brief. It is submitted that since by its definition, under rule 13(3) a “concurrent” writ is a true copy of the “original” writ, it follows that copies thereof may be issued or re-issued at any time before the original one ceases to be valid. Consequently, it is argued, it is only where the original writ is declared null and void by the court and its service set aside, that it cannot be re-issued. It is contended that in the circumstances of the present case the original writ could validly be re-issued. Finally, this court is urged under issue 1 of the Appellant’s brief to hold that the concurrent writ of summons issued on 5/12/89 with leave and served on the 1st and 2nd Respondents (as amended) were properly and validly issued and served on the said 1st and 2nd Respondents and the interpretation given to the ruling of Oluborode J. by the learned trial Judge in considering the Application before him (to set aside the said concurrent writs), is erroneous.

In the Respondents’ brief under issue one, it is submitted that there is a misconception by the Appellant as to the effect of the ruling of Oluborode J. The said ruling and the proceedings leading to it (as recorded on pages 22-23 of the record) is reproduced in extense in the brief. It is then submitted that the Appellant’s argument to the effect that after the ruling of Ouborode J. had become spent and that any other writ issued before or after the said ruling will not be affected by the ruling is misconceived because a writ can only be validly issued in accordance with the rules of court. It is also trite that a writ for service outside jurisdiction can only be validly issued with the leave of court – See order 5 rules 14 and 15 of the High Court (Civil Procedure) Rules 1988 of Oyo State. MOBIL OIL NIGERIA LTD, V. AJAIYA (1964) LLR 60; AND ODUA INVESTMENT CO, LTD, V. TALABI (1991) 1 NWLR (PT.170) 761, cited in the brief, in support of the submission. It is contended that the earlier Ruling or order of the Registrars Court made on 5/12/89 which validated the Concurrent Writ (with leave) given a year before the Ruling of Oluborode J. on 5/12/90 cannot validly and legally vary or be affected by Oluborode’s Ruling which was made a year after it. It is also pointed out that the application for leave which led to the order of 5/12/89 did not bear the suit number of the existing Writ but bore a different number as if it were a fresh or new suit being instituted by the Appellant. Thus it had a new suit No as M/141/89 instead of the original suit No. which was 1/233/89. Reference is also made to some paragraphs of the affidavit in support of the Appellant’s motion for leave to appeal which also show that it was an entirely new suit being instituted by the said Appellants (see paragraphs 3-8 thereof at pages 5-6 of the records).

It is also contended that after Oluborode’s ruling the Appellants rather than instituting a new suit and paying new fees, did not do so but relied upon and used the same processes and fees used on 4/4/89 which had been declared invalid by Oluborode J’s ruling. It is pointed out that the ruling of Oluborode J which should be treated in the same way as a judgment subsits and once pronounced its validity remains until it is set aside on an appeal.

-See MOBIL OIL V. COKER (1975) 3 SC 175; ADEOSUN V. BABALOLA (1972) SC 292 AT 300; WILLIAMS V. SANUSI (1961)1 ALL NLR 334 AT 337; ROSSELI V. ACB LTD (1993) 9 NWLR (PT. 312)382; CHUCKS V. CREMER (1846) 47 ER 884; OBA OLADEGBEMI V. OBA ALADESANMI (198)3 NWLR (PT .81) 129 AND HADKINSON V. HADKINSON (1952)2 ALL ER 567. Cited in support of the proposition. The celebrated case of Nwabueze V. Okoye (Supra) is repeated in the brief on the principle that a writ of summons for service outside the jurisdiction of the trial court issued without the required leave is null and void. Finally the Respondents Brief urges this court to dismiss the appeal under issue one from the above submissions and arguments under issue one, the bone of contention is on the issuance and service of the concurrent writ of summons dated (or issued) on 4/4/89. It is a common ground or factor in the two briefs that the said Writ issued on 4/4/89 with two concurrent writs for service outside the jurisdiction of the trial court was a nullity for being issued without the leave of the court as was rightly held by the trial court (per Oluborode J as he then was) in its Ruling of 5/12/90 (see page 22 of the record). It is however pertinent to observe that in the said ruling, the trial court only declared as a nullity and set aside the concurrent writs served on the 1st and 2nd Respondents who were served or to be served outside its jurisdiction. As regards the 3rd Respondent, whose address was within the jurisdiction of the trial court the issuance and service on him were regular. It is only the issuance and service of the concurrent writs on the 1st and 2nd Respondents which were without the required leave of the trial court that were set aside by the ruling of 5/12/90.