Deros Maritime Limited V. M.v. “Msc Apapa” & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of Archibong J. of the Federal High Court, Lagos Division in Suit No FHC/CS/237/2001 delivered on the 1st day of July 2010 wherein the Appellant as Plaintiff at the lower court in an action commenced against the Respondents as Defendants claimed

“… the sum of US $273, 832.49 (Two Hundred and Seventy-Three Thousand Eight Hundred and Thirty-Two United States dollars and Forty-Nine cents) as reimbursements paid by the Plaintiff on behalf of the 1st Defendant, the vessel of the 3rd Defendant, with interest at the rate of 21 per cent per annum from the dates of accrual till judgment is liquidated. The Plaintiff also claims the full cost of this suit”.

The 3rd and 4th Defendants at the lower Court were served with the writ of summons and statement of claim outside jurisdiction pursuant to the order of Jega J. dated 23/3/01 The writ was however issued before the order was obtained. The 1st Defendant vessel was arrested but the Defendants provided security for bail and the vessel was subsequently released by the court.

The Defendants at the lower court, entered appearance in the suit filed Statement of Defence, Amended Statement of Defence and other processes. The Defendants also participated in the suit before Olomojobi J. before her retirement and in the trial de novo before Archibong J. up till defence stage. At the close of the Plaintiff’s case, the matter was adjourned for defence to open.

On the adjourned date, the Defendants did not open their defence but instead brought an application dated 27/4/10 seeking the order of the trial court to strike out and/or set aside the issuance of the Writ of Summons and Statement of Claim on the grounds that:

-The Plaintiff did not seek and obtain leave to issue the writ of summons and statement of claim on the Defendants who are ordinarily resident out of jurisdiction.

-The issuance of the writ of summons and statement of claim herein on the Defendants were invalid, null, and void; and

-The jurisdiction of this Honourable (trial) Court has therefore been vitiated.

In opposition to the application, the Plaintiff filed a seven (7) paragraph counter-affidavit with a written address. The trial court delivered its ruling allowing the application and striking out the suit for being incompetent.

Dissatisfied with the decision, the Plaintiff appealed to this Court by a notice of appeal containing a sole ground of appeal out of which a single issue for determination was distilled. The issue reads thus:

Whether or not the Appellant’s action is competent for want of the leave of court to issue and serve the writ of summons and the Statement of Claim on the 3rd and 4th Respondents.

The Respondents disagreed with the above issue on the basis that it does not quite arise from the sole ground of appeal. They contended that the issue of failure to obtain leave to serve the processes out of jurisdiction was never raised either before the lower court or in the ground of appeal. The Respondent then formulated the following issue:

“Whether the Appellant sought and/or obtained prior leave of court to issue their writ of summons and statement of claim on the 3rd & 4th Respondents who are admittedly ordinarily resident outside the jurisdiction of the lower court, and if not, was the learned trial Judge entitled to decline jurisdiction and strike the matter out”.