Davandy Finance And Securities Limited & Ors V. Elder Emmanuel MBA Aki & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH E. EKANEM, J.C.A. (Delivering The Leading Judgment)

This appeal is against the ruling of the High Court of the Federal Capital Territory, Abuja Judicial Division (“the trial court” for short) delivered on 21/3/2013 in suit No.CV/574/12. In the ruling, the trial court dismissed the preliminary objection raised by the appellants (qua defendants) challenging the competence of the suit and the jurisdiction of the trial court.

The suit was commenced as an undefended list matter by means of a writ of summons issued on 31/10/2012 by the hand of the registrar of the trial court. It is supported by an affidavit with exhibits attached thereto. The writ was meant for service on the appellants (qua defendants) at various addresses in Calabar, Cross River State, outside the jurisdiction of the trial court. On 8/11/2012, after the issuance of the writ, by a motion exparte, the respondents applied for,

“An order granting leave to the plaintiffs/applicants to issue and serve the writ of summons and other processes in this suit on the Defendants through DHL courier service at: No. 9, Chamley Street, Calabar, River State (Sic, Cross River State)

No. 118, Ndidem Iso Road, Calabar, Cross River State.

No. 10 Ewa Henshaw Street Calabar, Cross River State.”

On 9/11/2012, the trial court granted the application and adjourned the case to 14/1/2013 for hearing. The 1st appellant thereafter filed a memorandum of conditional appearance and a notice of preliminary objection attacking the competence of the suit on two grounds, viz: (I) that the writ for service outside jurisdiction was issued without leave of court first sought and had (II) that the writ of summons is incompetent and the court lacks jurisdiction. It is the ruling of the trial court dismissing the preliminary objection that is the subject of this appeal which was initiated by a notice of appeal containing four grounds of appeal.

In his brief of arguments, Kanu G. Agabi, CON (SAN) of counsel, for the appellants, formulated two issues for the court’s determination of the appeal.

The issues are:

“1. Whether the learned trial judge rightly assumed jurisdiction over the claims of the respondents despite the fact that the writ of summons was issued and served on the appellants without the leave of court first sought and obtained in clear violation of ORDER 4 RULE 6 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004, and Section 97 of the Sheriffs and Civil Process Act. (Arising from Grounds 1 and 2 of the grounds of appeal).

2. Whether the claims of the respondent which borders on investment funds is not a transaction governed by the Investment and Securities Act to which the Investment and Securities Tribunal is seized of jurisdiction and whether the respondent complied with ORDER 4 RULE 17 of the High Court of the Federal Capital Territory Abuja (Civil Procedure Rules) 2004 (Grounds 3 and 4).

I must quickly state that the first part of issue two is derived from ground 4 of the grounds of appeal which raises an issue as to the jurisdiction of the trial court to entertain the claim. Even though it is a fresh issue not having been raised and determined at the trial court it is competent since it raises an issue of jurisdiction which can be raised at any stage for the first time without leave. See COMPTROLLER GENERAL, PRISONS V. IDEHEN (2010) 3 NWLR (1182) 503, 513.

However, the second arm of issue two is not an issue of jurisdiction strictly speaking. It is an issue which to my mind touches on compliance or non – compliance with rules of court which does not go to the jurisdiction of the court. It is a matter of procedure. It was not canvassed before the trial court and was not determined by it. Leave of this court ought to have been sought for and obtained before raising it. This not having been done, ground 3 and the second arm of issue two are incompetent and are liable to be struck out. I hereby strike the same out. See OGBU V. ONWUZO (2005) 14 NWLR (945) 331 and ORGAN V. NIGERIA LIQUIFIED NATURAL GAS LIMITED (2013) 16 NWLR (1381) 500, 532 – 533.

On his part Emeka Ugwuowu, Esq. Of counsel, for the respondents, formulated the following issues for the determination of the appeal,

“1. Whether the appellants were right in raising a preliminary point of jurisdiction without first filing a notice of intention to defend and whether the court can determine if the respondent’s claim bothers (sic) on investment funds without perusing the notice of intention to defend with its affidavit