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

LawGlobal-Hub Lead Judgment Report

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.

(iii) Whether, if such a writ was voidable, an order could or should in the circumstances disclosed by the proceedings have been made regularising the irregularity.

Chief Williams learned counsel for the respondent in his own brief accepted issues (ii) & (iii) above but said issue (i) did not really arise. He however formulated another issue in its place which is now the fourth, thus:-

(iv) Whether the appellants have submitted to the jurisdiction of the High Court of Lagos State.

Mr. Ajayi on the first issue said a careful perusal of the ruling would show that the trial Judge permitted himself to go on a lone voyage in which he raised and determined issues which were not placed before him for adjudication by counsel. He gave instances of such a voyage. He said while the Judge found that the fourth defendant was a proper party to the action and that it was proper to have joined him as a party, the plaintiff made it clear that it was not their contention that jurisdiction of the court to grant leave depended on the validity of the action against the 4th defendants. That the learned Judge was thereby making a case for the plaintiff which it did not make for itself. Another instances where the trial Judge went off according to counsel was on Clause 13 of the Agreement (EXHIBIT E.B.I.) when he held that there was a dispute between the parties on whether or not the Agreement was binding on them. Counsel said neither counsel addressed the court on Clause 13 as the issue did nor arise. It was also said that when the attention of the Judge was drawn to failure to list for hearing the motion to issue concurrent writ and to get it listed, he proceeded to hold that “mere filing of the Motion for leave to issue the concurrent writs was substantial compliance with Order 5 Rule 9 of the High Court (Civil Procedure) Rules”.

That this decision is contrary to the case of the plaintiffs and that the Judge was not entitled to reach that conclusion. Counsel also referred to the order made by the trial Judge to serve the writ of summons on the defendants outside the jurisdiction “as prayed”, and said that there was no time such an application was placed before the court. It was then submitted that the trial Judge was not entitled to make a case for or to award relief which was not made or claimed by a party before him; and that all such findings and orders with regard to issues not raised before him should be set aside. The following cases were cited in support:- Adeniji & Ors. v. Adeniji & Ors. (1972) 1 A.N.L.R. (Part 1) 298; Odiase & Anor. v. Agbo & Ors. (1972) 1 A.N.L.R. (Part 1) 170; T. O. Kuti v. Balogun (1978) 1 S.C. 53; Ekpenyong & Ors. v. Effiong Nyong & Ors. (1975) 2 S.C. 71.

I think it is settled law that a court of justice should confine itself to adjudicating upon the questions raised by the parties before it to the exclusion of other questions which they do not advance (see Kuti v. Balogun (supra). I think the instances cited by Mr. Ajayi are clearly instances where the trial Judge could be said to have embarked on a lone voyage. For example his finding on clause 13 of the Agreement when he had not had the benefit of argument from counsel and when that issue was not before him cannot in my view really be supported. There was also clearly no formal application before the trial Judge for leave to serve writ and the statement the jurisdiction. The record however shows that an oral application was made in court even though at the instance of the Judge. The Judge as umpire has no business to descend to the arena. By telling counsel what to do and how to do it, the Judge was taking sides. I feel he was wrong to have gone that far. On the complaint regarding failure to list for hearing, the motion to issue concurrent writs and a request to list it by respondent’s counsel, I also feel that the Judge was in error to have proceeded to pronounce that mere filing of the Motion for leave was substantial compliance with O.5 R.9″. I think here too that the Judge was taking sides by offering unsolicited help.The relief sought was not the one granted by the court. (See generally Ekpenyong v. Nyong (supra). But in the circumstances of this case as whole one can say that these lapses can be regarded as a mere irregularity on the part of counsel and the judge (See later Rules of the Supreme Court (England) Order 2 Rule 1). They are not in my view serious complaints. But I do not feel the complaint of Mr. Ajayi on the finding that the 4th defendant was properly joined is a genuine one. He conceded in his brief (and the record support it) that he had addressed the court that the 4th defendant was not a proper party. And that the respondent gave a reply suggesting that they were not bothered. So one way or the other the trial judge was bound to give a ruling. And he did. I am unable to agree that that issue was not before him. I think it was.

Consequently all the findings by the trial Judge on Clause 13 of the Agreement (Exh. E.B.I) are hereby set aside.

I now turn to the second issue for consideration and apparently this is the most vital issue. It is whether or not failure to obtain leave of the High Court before commencing action rendered the writ void or merely voidable.

Mr. Ajayi submitted that the requirement that leave of court be obtained where a writ of summons is to be served outside the jurisdiction is condition precedent to the validity of the writ itself. That where an action is to be instituted against a defendant resident outside the jurisdiction, the plaintiff must obtain two types of “leave” before the action can proceed to trial, namely,

(a) Leave to issue the writ under O.2 R.4 of the High Court Civil Procedure Rules; and

(b) Leave to serve the writ out of jurisdiction under O.7 R. 1 of the same rules.

It was then submitted that the provisions relating to the issue and service of the writ of summons being rooted in the jurisdiction of the court to entertain actions, it follows therefore that without proper authorisation, any proceedings would be entirely void. Counsel stated that leave to issue the writ for service outside the jurisdiction is granted on the same principles as on an application for leave to serve the Writ outside jurisdiction, and that failure to comply with the provisions of the rules directly affects the validity of the writ of summons and of subsequent proceedings. It was further submitted that failure to obtain leave of court before the issue of the writ of summons has the effect of the writ never being issued because the very basis of the jurisdiction of the court is completely destroyed. He said courts are required to exercise effective power to grant or refuse leave to issue writs for service out of jurisdiction and that it is essential where the defendant does not submit to jurisdiction for the court to be given opportunity to decide whether it would refuse or grant leave. He referred to Supreme Court Practice 1982 Edition, Volume 1 Para. 11/1/1 at 93. Myerson v. Martin (1970) 1 W.L.R. 1390; Leal v. Dunlop Bio-Processes International Limited (1984) 1 W.L.R. 874 at 885 per Slade L.J.

Counsel further contended that the provision of Order 2 Rule 1 of the Rules of the English Supreme Court relied upon by the trial Judge cannot apply to failure to obtain leave to issue a writ for service outside the jurisdiction and that failure to obtain prior leave to issue a writ results in the action not being commenced at all. He said also that the case of Harkness v. Bell’s Asbestos & Tos & Engineering Ltd. (1967) 2 Q.B. 729 relied upon by the trial Judge does not apply here because in that case the application for leave was actually made.

Chief Williams in reply agreed with the appellants that the combined effect of O.2 R.4 and O.7 R.1 of the High Court Civil Procedure Rules is to prescribe that a party who wishes to institute an action against a person resident outside jurisdiction must obtain leave to issue the writ as well as leave to serve the Writ outside jurisdiction. But on the effect of failure to obtain leave in this case counsel submitted that the learned trial judge was perfectly correct in concluding that failure to obtain leave as required by the rules was no more than an irregularity. He said the Judge rightly placed reliance on Order 2 Rule 1 of the Rules of Supreme Court (England) and on the interpretation given to the rule in the cases cited before him which included:-

Harkness v. Bell’s Asbestos & Engineering Ltd. (supra) Camel Exporters (Sales) Ltd. v. Sea-land Services Inc. (1981) 1 W.L.R. 1968);

Knighthood Assurance Consultants Ltd. v. Meacher Vol.20 Sol. J0, 117;

Myerson v. Martin (1979) 1 W.L.R. 1390;

Leal v. Dunlop Bio-Processes Int. Ltd. (supra).

It was further submitted that O.2 R.1 of the Supreme Court Rules is intended to do substantial justice between the parties whatever may be the fault. That the rule is very wide and the judge was competent to make the order which he made. That it was not necessary for him to have had the application moved before him for the purpose, even though the motion paper had in fact been filed. Counsel said the appellants have not shown that they had suffered any injustice by granting leave to the respondent.

It is significant that both sides agree that the respondent requires leave both to issue and to serve the writ on the appellants who reside outside jurisdiction (see O.2 R.4 and O.7 R.1 of the High Court Civil Procedure Rules (Lagos). Both sides also agree that the decision of the English Court in Leal v. Dunlop Bio-Processes Ltd. (supra) has now put it beyond doubt that the courts do have the power to grant leave to issue Writs of Summons for service outside the jurisdiction, retroactively.

The only issue we are required to resolve here is whether failure to obtain leave before the commencement of the action renders the writ void or only voidable. I have carefully gone through the High Court Civil Procedure Rules (Lagos) 1972, and have not succeeded in tracing any provision which deals with the effect or consequence of failure to comply with any of those rules. I know for example, that the rules of this Court, Court of Appeal Rules, 1981 under Order 7 Rule 3 provides that the court may in the interest of justice waive non-compliance with any of its Rules. In the absence of any provision in the local High Court Rules, therefore, the trial Judge had no option but to resort to Order 2 Rule 1 of the English Supreme Court Rules which apply in Lagos State by virtue of the provision of Section 12 of the High Court Law.

The Order which deals with the effect of non-compliance with the provision of the rules reads:-

1.(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein

(2) Subject to paragraph (3), the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in the part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.”

Even on the text of the rules above, it cannot be doubted that on its ordinary and natural meaning the effect of failure to comply with the provision of the rules is to render such a failure an irregularity incapable of nullifying the proceedings. The point has also been decided in at least two decisions of the English Court of Appeal. Lord Denning M.R. in Harkness v. Bell’s Asbestos etc (supra) at 735 commented thus:-

“This new rule (O.2 R.1) does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforth to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. It can at last be asserted that “it is not possible for an honest litigant, to be defeated by any mere technicality, and slip, and mistaken step in his litigation” – see Pontin v. Wood (1962) 1 Q.B. 594 per Holroyd Pearce L. J. at 609…”

Also in the case of Leal v. Dunlop Bio-Processes International Ltd. (supra) the Court held

“that where a writ was to be served out of the jurisdiction leave was requested …. to issue the writ and serve it out of the jurisdiction, and by virtue of Order 2 Rule 1, non-compliance with those requirements was an irregularity…”

I have come to the conclusion on the authorities therefore that failure to obtain leave to issue the writ before the commencement of the action herein or to serve it out of jurisdiction does not render the writ void but merely voidable.

This leads me direct to the consideration of the third issue, which is whether having found that the writ is only voidable the irregularity is such that could be regularised having regard to the circumstances of the case. Mr. Ajayi submitted that even if the failure to obtain leave of court were to be treated as an irregularity, the trial Judge ought to have set the writ aside. He said the reason given by the Judge for refusing to set aside the writ that justice might be defeated by giving coverage to mere technicality, slip or mistaken step in the plaintiff’s litigation, is not a valid one. That rules of court are made to be obeyed and the plaintiff showed no good cause why he failed to apply for leave before the writ was issued. He said if the writ is set aside, the plaintiff would only have to make a proper application to the court and that depending on the result he might still file an action in the High Court or in the Italian courts as provided under the agreement.

Chief Williams replied that the order made by the trial Judge to cure the irregularity in the issuance of the writ was a correct one. He said the Judge properly exercised the discretion conferred upon him by 0.2 R.1 (2) of the Supreme Court Rules and that this Court will not lightly interfere with the exercise of a discretion by the Court below. That even if it were open to this court to exercise the discretion which the learned trial Judge had exercised, this court would have come to the same conclusion. He referred to Afolabi & Ors. v. Adekunle (1983) 8 S.C. 98 per Aniagolu J.S.C. at 119; and Harkness Case (supra) per Denning L.J. at 735-736.

Now, the retroactive order made by the judge reads:-

“I consider a grant of leave to issue the writ would meet the justice of this case and I so order and confirm my original order of 27th June 1983. I further order that service be effected on the defendant’s resident outside the jurisdiction as prayed…”

(Italics mine)

The order is thus clearly made in the furtherance of justice of the case.

It is also clear to me that under O.2 R.1(2) R.S.C. (supra) the Judge is empowered where there is a failure to comply with the requirement of the rules to either set aside wholly or in part proceedings in which the failure occurred or allow such amendments to be made and to make such order dealing with the proceedings generally as he thinks fit. The judge decided to exercise his discretion under the second arm of the rule and ordered accordingly.His reasons are patently clear on the record and we cannot lightly interfere with his decision unless it can be shown that the discretion was wrongly exercised. This has not been demonstrated before us. And as Denning M. R said in Harkness case (supra) in an authoritative interpretation of O.2 R.1 (supra):-

“Every omission or mistake in practice or procedure is henceforth to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice…”

So it ought to be in this appeal. I am of the view that all that the Judge has done was to cure or rectify the irregularity and I am unable to see how that has resulted in injustice to the appellants.

Further the Judge’s order does not in my view derogate from the statement of Slade L.J. in Leal Case (supra) on which Mr. Ajayi relies. This is what the learned Lord said at p.885:-

“Finally, and more generally, I would specifically express my agreement with May, L.J.’s views that only in exceptional cases would the court, in the exercise of the discretion which we have held to exist, validate, after the event, the purported service in a foreign country without leave of process issued by an English Court. In most cases breaches of the requirements…relating to the leave of Court, are not, in my opinion likely to be breaches which can be lightly disregarded.”

It will be recalled that in Leal’s Case the court was dealing with a situation where the writ sought to be cured related to a case that was already statute barred and in those circumstances the court held inter alia that the discretion to cure the irregularity by renewing the writ or extending its validity even retroactively would not be exercised where it would have the effect of depriving the defendant of a defence under a statute of limitation unless there were exceptional circumstances. The court therefore dismissed the appeal. Thus the facts in LEAL’s CASE and this case are quite different. The statute of Limitation is not an issue here at all.

I therefore conclude by saying that the writ being only voidable, the irregularity is such that in the circumstances of this case could be regularized, and rightly so regularized by the trial judge.

I now turn to the fourth issue raised by Chief Williams for the respondent. He is not the appellant. It is whether or not the appellants have submitted to the jurisdiction of the High Court. Mr. Ajayi strongly contended that the point which was raised by Chief Williams in his brief is tantamount to asking this Court to affirm the decision of the High Court on other grounds other than those relied upon by the Court below. He submitted that it is a non-issue in this appeal and that the respondents have not complied with the provision of Order 3 Rule 14(2), (3), (4) & (5) of the Court of Appeal Rules 1981, especially the requirement that he must give notice to that effect specifying the grounds of his contention”. And that unless this Court gives leave no respondent shall be entitled to be heard without giving the notice as prescribed.

It was submitted that although this Court has the power to waive any of the provision of the rules, no counsel has the right to make or pre-empt that decision of the court. He said unless and until, this Court waives the requirement in that respect. He urged the court to discountenance any submission in the respondent’s brief thereon as there is no explanation as to why the respondent’s Notice was not filed in the first place, and there is no application for extension of time or for waiver of the rules which requires that such a notice be given and grounds thereof be formulated.

Chief Williams in reply submitted that the waiver they are relying upon is based on what actually happened in the appeal proceedings in this Court. He said he therefore needed to file no notice in respect of the matter. He said O.3 R.14(2) of the rules apply to grounds which were open to the trial Judge to take but refused or did not take at the trial. He said this type of submission to jurisdiction is the type the court can take judicial notice of as it is done right in front of the Court itself.

In the alternative, counsel submitted that having regard to the circumstances of this case, the appellants should not be permitted to take advantage of the objection. He said this Court on 29/10/85 ordered the appellants to submit a reply to the point of jurisdiction raised in the respondent’s brief. They were given 30 days to do so. They did nothing. Instead they filed a Notice of Preliminary objection which they refused to move at the beginning of hearing. He then urged the court to exercise its powers under O.3 R. 14(6) of the Court of Appeal Rules and allow the appeal to be heard.

Mr. Ajayi in a short reply stated that the order of 29/10/85 by this court does not amount to granting the respondents retroactive leave to raise the issue of submission to jurisdiction notwithstanding the fact that no notice had been filed.

It is quite true that this Court on 29/10/85 ordered the appellants to file a reply to the point raised by Chief Williams in his brief about submission to jurisdiction by the appellants. They had 30 days within which to do so. By the time this appeal came up on 21/1/86 nothing had been done in that direction, but rather a Notice of Preliminary Objection was filed two days earlier. This preliminary objection for reasons best known to counsel was not taken at the beginning of hearing.

However, be that as it may, I think I am inclined to agree with the submission of Mr. Ajayi that the question of Waiver or submission to jurisdiction amount to asking this Court to confirm the decision of the High Court on other grounds other than those relied upon by the trial court. I also agree with him too that the proper procedure to adopt in such a situation is as contained in O.3 R.14(2)-(6) of the Court of Appeal Rules. None of these procedures has been complied with. Rules of Court are made to be obeyed and even if there is need to apply to the Court for the waiver of those rules, the proper application ought to be made to the Court. No application of any sort has been made before us. It is of cardinal importance that the Court should not be seen to be distributing volunteered, unsolicited and favourable orders upon one of the parties to litigation in answer to attacks launched by the opposite party. I am also in complete agreement with Mr. Ajayi that the orders of this Court made on 29.10.85 could not and does not amount to a retroactive leave for the respondent to raise the issue of jurisdiction without compliance with the appropriate provision of the rules of Court.

I am not persuaded by Chief Williams’ argument that because the type of submission to jurisdiction involved was committed in this Court, therefore he needed to file no notice of it as required by the rules. I believe he realised if we found in his favour, this Court was not going to try the case but to send it back to the High Court for continuation of trial. It is the jurisdiction of the High Court that they submitted to. I cannot see how we can disentangle the proceedings in this Court from the proceedings in the High Court, since both sides appeared in both courts and participated in the proceedings. The case of S. A. General Textile v. Sun & Sand Ltd. (1978) 1 Q.B. 279 at 299 sought to be relied upon by Chief Williams is quite different because in that case the English Company did not appear in the court of trial but appeared in the Court of Appeal to challenge the decision given against them. This is what probably necessitated the comment of Denning M.R. to the effect that:-

“By inviting the Appeal Court to decide in its favour on the merits, it must be taken to have submitted to the jurisdiction of the original court.”

(Italics mine).

It is also my view that the court cannot take judicial notice of the type of waiver. It is certainly not provided for under S.73 of the Evidence Act. We have also not exercised our powers under O.7 R.3 of the Court of Appeal Rules to waive the requirement for notice. We would therefore have to discountenance any submission to jurisdiction. The preliminary objection therefore succeeds and it is hereby allowed. Issue No. (iv) in this judgment will therefore be and is hereby struck out.

On the whole this appeal fails and it is accordingly dismissed with costs of three hundred (N300.00) Naira in favour of the respondent.

Other Citations: (1985) LCN/0018(CA)