British American Tobacco (Investments) Limited V. The Attorney General Of Lagos State & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment)

The Appellant is resident in England, and by a Motion Ex Parte dated 13/3/08, the 1st Respondent applied to the High Court of Lagos State for the following –

1. AN ORDER seeking the leave of this Hon. Court to serve the Writ marked concurrent and all other processes filed in this Suit on the 2nd – 5th Defendants.
2. AN ORDER directing such service to be effected by means of a reputable courier service.
3. AN ORDER settling a time certain (sic) of 42 (forty days) sic days from the service of the Writ as the as the time limit within which the 3rd – 5th Defendants should enter an appearance to this suit.

The Application granted on 14/3/08 was brought pursuant to Order 8 rule 1(f), (g) & (h) of the Lagos State High Court (Civil Procedure) Rules, which provides –

“A Judge may allow any originating processes – – to be served outside Nigeria where-

(f) The claim is founded on a tort committed within jurisdiction, OR

(g) An injunction is sought as to anything to be done within jurisdiction, or any nuisance within jurisdiction is sought to be prevented or removed, whether or not damages are sought in respect thereof, OR

(h) Any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within jurisdiction.

Upon being served with the Writ of Summons/Statement of Claim in England, the Appellant, who was the 4th Defendant, entered a conditional appearance “for the purposes only of contesting the jurisdiction of [the] Hon. Court”, and thereafter filed a Notice of Preliminary Objection dated 2/5/2008, wherein it challenged the basis for the lower Court’s order, and prayed for the following –

1. An Order setting aside the Order of this Hon, Court mode on 14th March, 2008 granting the Claimant leave to serve the originating processes on the 4th Defendant/Applicant outside the jurisdiction and by courier service.
2. An Order striking out the name of the 4th Defendant/Applicant from the above referenced suit.
3. An Order striking out the above referenced suit against the 4th Defendant/Applicant.
4. An Order setting aside the service of Writ of Summons and pleadings on the 4th Defendant/Applicant.

The grounds for the said Objection are as follows –

1. The Claimant [1st Respondent] has alleged no tortuous act by the [Appellant] within Lagos State and thus provided no basis for the order of 14th March 2008 granting leave to serve the processes outside jurisdiction under Order 8 Rule 1(f).
2. The 1st Respondent has not identified in its application for leave to serve the Appellant any act or alleged nuisance by the Appellant within jurisdiction which the 1st Respondent seeks to restrain by injunction and thus not provided any basis for the Court’s order granting leave to serve the processes outside jurisdiction under Order 8 Rule 1(g).
3. The 1st Respondent has not demonstrated in its application for leave to serve the Appellant out of jurisdiction how the Appellant is a necessary or proper party to this suit and thus not provided any basis for the court’s order granting leave to serve the processes outside jurisdiction under Order 8 Rule 1(h).

In dismissing the Objection, the learned trial Judge, R.I.B Adebiyi, J., held that –

“The arguments that the Claimants did not make out a good arguable case against them have not committed any tort within jurisdiction, have not committed any act of nuisance to restrain by way of injunction, are challenges – – to the discretion of this Hon. Court. Nowhere – – have the learned SAN argued that this Court exercised its discretion illegally or in such manner as to render its decision a nullity and, therefore, rob the Court of its jurisdiction. It would go against our administration of justice system for Courts to sit on appeal over its own decision – – – simply because parties do not agree with it”.

‘The Claimant claims various orders of mandatory injunction to compel the Defendants to cease marketing and sale of tobocco related products, declaratory claims for damages. The Court finds upon perusal of the Statement of Claim that the 3rd and 4th Defendants are necessary parties – – as their presence will be necessary to enable the Court effectively and completely adjudicate – and settle all the questions in controversy. –

– The Court finds that the suit against the – 4th Defendant is not liable to be struck out”.

Dissatisfied with the decision, the Appellant filed a Notice of Appeal containing four Grounds of Appeal in this Court, and in its Brief of Argument prepared by Mrs. Funke Adekoya (SAN), and Adedapo Tunde-Olowu, Esq., the Appellant formulated 4 Issues for Determination to go with the 4 Grounds of Appeal i.e.