Aermacchi S. P. A. & Others V. A. I. C. Limited (1985)

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KUTIGI, J.C.A.

The Plaintiff, a limited liability company, incorporated under the laws of the Federal Republic of Nigeria commenced an action in the Lagos High Court against the defendants, four in all, on the 21st day of June 1983. Suffice it to say without going into details that the action is in relation to a breach of contract. The first defendant is an Italian company incorporated under Italian laws and carrying on business in Italy. The 2nd and 3rd defendants are employees of the 1st defendant. They both live in Italy, a foreign country as shown by their addresses endorsed by the Plaintiff on the Writ of summons. The fourth defendant representing the Ministry of Defence is the Attorney-General of the Federation who resides in Lagos, Nigeria.

On the day the writ of summons was filed, the plaintiff also filed two applications one ex parte seeking for injunction against the 1st & 4th defendants and the other which was on notice seeking from the court Order 7 Rule 1(e) of the Lagos High Court Civil Procedure Rules 1972 for leave to issue concurrent writs and to serve the notice thereof at stated addresses in Italy. On 27th June 1983 the ex parte motion for injunction was heard in chambers and an interim order of injunction was made until the substantive application was fixed for hearing. Also at the same venue the learned trial Judge on an oral application granted the plaintiff leave to serve the writ and the statement of claim with the motion on notice on the defendants. The application for leave to issue concurrent writs for service outside jurisdiction never came up. It is also important to bear in mind that no leave was obtained either to issue the writ of summons itself or to serve it outside the jurisdiction before it was filed in court.

Thereafter the 1st to 3rd defendants filed an application pursuant to Order 8 Rule 11 of the High Court Rules for an order that the writ of summons issued in this matter and all proceedings subsequent thereto be set aside

After hearing arguments on the application the court on 19th August 1983 delivered a ruling by which it set aside the orders made on 17/6/83 as follows:-

(a) discharged the order authorising service on the defendants, and

(b) discharged the order of interim injunction.

Later that same day the Plaintiff brought an application to set aside the order of 19th August 1983. In its ruling on 22nd March 1984 the court discharged the earlier order made in favour of the defendants and ordered that the summons filed by the defendant be heard on merit.

The main point taken by the 1st to 3rd defendants at the hearing was that the writ of summons and the order for injunction made in the action should be set aside because this was an action in which the material defendants were to be served outside the jurisdiction and that the action could not have been commenced without the prior leave of the court obtained by virtue of Order 2 Rule 4 of the High Court (Civil Procedure) Rules 1972. The reply of the plaintiff was essentially that non-compliance with the Rules of Court would only render the write voidable and not void. The failure to obtain leave to issue the writ of summons was a mere irregularity and the court would only set aside the writ if the justice of the case so required. That non injustice was done to the defendants if the writ was not set aside.

In a considered ruling given on 5th July 1984 the Judge held inter alia that the fact of filing a motion for an order for leave to issue concurrent writs on the defendants in Italy is substantial compliance with Order 5 Rule 9 of the High Court (Civil Procedure) Rules, and that failure to obtain leave before the Writ of Summons herein was issued amounted to an irregularity under Order 2 Rule I of Rules of the Supreme Court (England) and did not result in making the writ a nullity. The Judge therefore granted leave to the plaintiff to issue and serve the writ and confirmed his orders of 27th July 1983.

The defendants now appellants have now appealed against the ruling to this Court. The defendant will also be referred to as the respondent henceforth.

Mr. Ajayi learned counsel for the appellants in his brief identified three main issues for determination in the appeal thus:-

(i) was the learned trial Judge entitled to make findings and give decisions on issues not placed before him by the parties, and was he entitled to make an order in favour of a Respondent in an application before him when the order was not claimed or sought by the party?

(ii) Whether the failure to obtain leave of Court before commencing the action in the High Court rendered the writ void or whether it merely rendered it voidable.