Drexel Energy And Natural Resources Ltd & 2 Ors V Trans International Bank (2008)
LAWGLOBAL HUB Lead Judgment Report
S. MUNTAKA-COOMASSIE, JSC
The Respondents who were the plaintiffs in the trial Court claimed in their joint writ of summons dated 21/3/98 and filed at the High Court of Justice, Ibadan, Oyo State the sum of N20,058,304 as debt owed them by the Appellants, who were the Defendants at the trial Court. The addresses of the service as supplied/endorsed in the said writ of summons are stated as follows:
“1st to 3rd defendants 9A Raymond Njoko Road, Ikoyi, Lagos. 4th defendant Lekki Express way Victoria Island, Lagos”
This writ of summons was filed and issued without the leave of the trial High Court. The same writ was served on the Appellants by means of substituted service by publishing same in the Guardian Newspapers. On becoming aware of the suit, the Appellants filed a motion on Notice dated 19/4/99 in which the trial High Court was prayed for the following reliefs:
(i) AN ORDER dismissing and/or striking out this action for want of jurisdiction.
(ii) AND for such further Order(s) as this Honourable Court may deem fit to make in the circumstances.”
The grounds for the application were stated as follows:
(1) That 30 (thirty) days period prescribed by the provisions of Section 99 of the Sheriffs and Civil process Law of the Federation, 1990 have not been complied with.
(2) The subject matter of the Suit is a contract entered in to in Lagos to be performed in Lagos and
(3) All the Defendants/Applicants reside and carry on business in Lagos and it will not be convenient for any trial in respect of the Subject matter of any other matter to be tried in Oyo State or any other State except where the defendants are resident and Or carry on business.
On the 30/7/99, the trial High Court per Adekola CJ, dismissed the application. In his ruling on this application, learned trial Judge held as follows:-
“In the circumstance, the plaintiff has complied with the provisions of section 99 of the Sherrifs and Civil process Act by the endorsement of 30 days within which the defendants are to enter appearance after the Service of the writ of summons on them. There is difference and distinction between the validity of a writ of summons and the validity of service of the writ itself. See Adegoke Motors Limited v. Dr. Babatunde Adesanva; Mr. F.O Odesanva (1989) 3 NWLR (Pt 109) 250”
On the Issue of the defendants residing in Lagos, the learned trial High Court held thus-
“Regarding whether Or not the contract was entered into in Lagos and was to be performed in Lagos, that issue cannot be safely determined at this stage of the proceedings. When One looks at the wordings of the writ of summons and the averments contained in the statement of claim, it will be premature for the Court to say that the place where the contract was entered into was Lagos and that Lagos was also the place where the contract was to be performed.
That Point of objection as to lack of Jurisdiction on the part of the Court being premature is hereby refused” See page 28 of the Record.
The Appellants were out of time in appealing against this ruling. Consequently, an application was filed before the Court of Appeal, Ibadan Division, praying amongst others for: –
(1) Extension of time within which to seek leave to appeal against the ruling delivered by the then Honourable Justice Adekola C.J on the 30th day of July, 1999.
(2) Leave to appeal against the ruling delivered by then Honourable Justice Adekola C.J on the 30th day of July, 1999.
(3) Extension of time within which to file the Notice and ground of appeal.”
ln its short ruling, the lower Court refused the application and dismissed it. The lower Court concluded as follows;
“As the issue of jurisdiction can be taken at any stage, it is therefore believed that the present application should be refused so that the claim now still pending at the lower Court could be expeditiously concluded. The Applicants could then raise the point of jurisdiction in any appeal against the final judgment of the Court in case they lost at the lower Court.
This stand is strengthened on the ground that the applicants have not shown that the ruling of the lower Court now in issue is ex-facie defective or that the lower Court’s assumption of jurisdiction is patently illegal. In the result, the application is refused and accordingly dismissed” See pp 66-67 of the Record.
It is against this ruling that the appellants have appealed to this Court by a Notice of appeal dated 21/6/2001 containing three grounds of appeal after obtaining leave of the lower Court. The Appellants also applied to this Court to raise fresh issues, which was granted.
In accordance with the provisions of this Court, Order 6 Rule 4 of the Supreme Court Rule 1999, both parties filed and exchanged their respective brief of argument. The Appellants in their briefs of argument dated 5/5/2005 formulated four (4) issues for determination as follows:
ISSUE NO. 1
Whether the failure by the Respondents to comply with the provisions of Order 5 rule 6 of the Oyo State High Court (civil procedure) Rules, 1988, is a fundamental defect capable of rendering the Writ of summons invalid, and consequently the proceedings before the lower Court and this Court.
ISSUE NO. 2
Whether the determination of the issue of jurisdiction once raised by a party, can be deferred until the conclusion of the substantive suit. ISSUE NO. 3
Whether in circumstances of this case the justices of the court of Appeal exercised their discretion judicially and judiciously in dismissing the Appellants application for leave to Appeal.
ISSUE NO. 4
Whether the trial Court had the jurisdiction to make an order for substituted service of the Writ of Summons and the statement of Claim on the Appellants as Defendants, who were at the time of issuing the said processes outside the territorial jurisdiction of the trial Court.
The 1st and 2nd Respondents in their Brief of argument dated 1st day of February, 2000 formulated five (5) issues for our consideration of this appeal thus:-
(1) Whether the determination of the issue of jurisdiction once raised by a party can be deferred until the conclusion of the substantive Suit.
(2) Whether the Appellants’ Counsel had a right of audience before the trial Court without first entering appearances before arguing the preliminary objection.
(3) Whether the preliminary objection brought by way of a demurrer was competent.
(4) Whether the trial Court had jurisdiction to hear or entertain the action.
(5) Whether the appellants could be allowed to seek protection under the Veil of technicality to wriggle out of their financial commitment to the 1st respondent.”
At the hearing of this appeal, the learned Counsel to the Appellants adopted their Brief of argument and urges this Court to allow the appeal.
On the issue I for determination learned Counsel referred to the provisions of Order 5 Rule 6 of the Oyo State High court (Civil Procedure) Rules of 1988 and submitted that the action is not competent as no leave of the trial High Court was obtained before it was issued being an action which Notice is to be given out of the jurisdiction. The requirement for leave is mandatory and it is a condition precedent to the exercise of the Court jurisdiction over the Plaintiffs’ claims.
He relied on the case of Intra Motors Nig. Plc v. Akinloye (2001) 6 NWLR (Pt. 708) 61 at 72-73. Consequence of failure to seek and obtain the leave is that a condition precedent for the assumption of jurisdiction by the trial Court was not satisfied, the case of Nwabueze v. Okove (1988) 4 NWLR (Pt. 91) 685 was cited. This failure to seek leave, it was submitted, was not a mere irregularity but one that renders the entire process a nullity, the case of Eimskip Ltd v. Exquisite Ind. (Nig) Ltd (2003) 4 NWLR (Pt. 809)88; (2003) 5 SCM, 82 and Broad Bank (Nig) LTD v.. Alhaji S. OLayiwola & Sons Ltd (2005) 3 NWLR (Pt. 911) 434 at 453 (2005) 1 SCM, 65 per pats – Acholonu, JSC were cited by the Appellants Counsel.
On the second issue, the learned Counsel submitted that once the issue of jurisdiction is taken or raised by a party, that issue must be determined before any other proceedings can be conducted in the matter. He referred to the decisions in Nepa vs. Olagunju (2005) 3 NWLR (Pt. 913) 602; Akegbejo v. Ataga (1998) 1 NWLR (Pt. 534) 459; Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 274.
On the third issue for determination, the learned Counsel submitted that the determination of an application for the grant of leave to appeal involves the exercise of discretionary power of the Court, the case of Alamieyeseigha v. CJN (2005) 1 NWLR (Pt. 906) 60 was cited.
In the instant case, the issue in point is jurisdiction bordering on the failure to serve originating process on the appellants as required by the Rules of Court and the Sheriffs and Civil Process Act 1990, such a defect raises the issue of fair hearing, which is fundamental for the exercise of the Court’s jurisdiction. Learned Counsel referred to Dahuwa v. Adeniran (2003) 17 NWLR (Pt. 849) 376 and Nepa v. Eze (2001)3 NWLR (Pt. 701) 606 at 619.
The Learned Counsel to the 1st and 2nd respondents, also adopted his Brief of argument and urged this Court to dismiss the appeal, in arguing his appeal on issue 1, he submitted that the lower court was correct in dismissing the appellants’ application as issue of Jurisdiction could be taken at any stage of the proceedings. He therefore submitted that the appellants should have waited until the final determination of the case after which he would raise the issue on appeal, if they are dissatisfied with the judgment of the trial court.
On the 2nd issue the learned counsel submitted that the counsel to the appellants having failed to file memorandum of appearance has no right of audience, hence the objection as to the jurisdiction is premature. The counsel referred to the PRACTICE AND PROCEDURE of the Supreme Court, Court of Appeal and High Courts of Nigeria 2nd Edition By T. AKINOLA AGUDA on page 194.
On the 3rd issue for determination, the learned counsel submitted that the demurrer had been abolished in Oyo State by virtue of the provisions of Order 24 Oyo State High Court (Civil Procedure) Rules 1988. The Appellants ought to have filed their statement of defence and therein raise the point of law after forming the ground or basis of the preliminary objection before filing same in form of motion. The case of Fadare & Ors v. A-G Oyo State (1982) NSCC 52 at 59 was cited.
On the fourth issue for determination, he submitted that the trial court has jurisdiction to hear this matter based on the averment contained in paragraph 6 of the counter affidavit to the effect that the contract for the payment of the sum of N17 million ought to have been performed in Ibadan, he referred to the provisions of order 10 Rule 2 of Oyo State High Court (Civil procedure) Rules.
Finally on the fifth issue for determination the learned counsel submitted that a party should not be allowed to seek protection under the veil of technicalities to deny the other party justice. The case of Timothy Omobare v. N N B Ltd (1986)1 NSCC 32 at 36; and Broad Bank Ltd v. Alh. S. Olayiwola & Sons Ltd, (supra); also reported in (2005) 1SC (pt.ll) page 1 at 8 (2005) 1 SCM, 65 were cited.
In reply on point of law, the learned counsel filed appellants reply brief dated 11/1/07 which was adopted at the hearing of this appeal.
The learned counsel to the appellants submitted that issue Nos. 2 and 5 formulated by the 1st and 2nd respondents were not based on any of the grounds of appeal and as such they are incompetent. The respondents did not cross-appeal and as such they could not raise any issue not borne out of the grounds of appeal.
On the issue of not filing a memorandum of appearance or entering an appearance before filing the preliminary objection, the learned counsel submitted that it does not deprive the appellants from moving their preliminary objection, the case of Ita v. Nvang (1994) 1 NWLR (pt 318) 56 at 72 was cited. The learned counsel further submitted that any application challenging the jurisdiction of the court to entertain a suit is not a demurrer. The judgment of the court in Arjay Ltd Vs. A. M. S. Ltd (2003) 7 NWLR (pt. 820) 572/601 (2003) 5 SCM, 17 was cited.
My Lords, the above were the submissions of the learned counsel to the parties. I will also wish to point out that the 3rd respondent did not file any brief in this appeal, hence the appeal would be determined based on the facts contained in the record and the briefs of argument filed in the court.
It was the contention of the learned counsel to the appellants that issue for determination nos. 2 and 5 formulated by the 1st and 2nd respondents counsel were not based on any of the grounds of appeal contained in the notice of appeal, and as such they are incompetent.
I have painstakingly perused the grounds of appeal contained in the amended notice of appeal, and I have not been able to identify any of the grounds of appeal that form the basis on which those issues for determination were based and neither were ‘they distilled from any of the grounds. This court has stated this position of the law severally in its judgments, and I wonder why counsel should continue to err in this regard. A respondent who wishes to raise an issue not covered by the appellant’s notice of appeal should either file a cross-appeal or apply that the lower court’s judgment be affirmed on other grounds. It is trite that an issue for determination not based or distilled from any ground of appeal is incompetent, this court lacks jurisdiction to determine or resolve such issue. This court, in the recent case of Odeh V. Federal Republic of Nigeria (2008) 13 NWLR (pt. 1103)1 at 19 – 20 reinstated this trite principle of law. Per Musdapher JSC, as follows:-
“Every issue for determination must be formulated from and related to or distilled from a competent ground of appeal.
In other words, an issue not distilled from any of the grounds of appeal, is incompetent and must be discountenanced together with the argument or arguments advanced thereunder”.
Applying the above principle of law to this case, and having found that issue nos. 2 and 5 formulated by the 1st and 2nd respondents do not relate or distilled from any of the grounds of appeal, I accordingly strike them out together with the argument or arguments advanced thereunder.
The appellants have argued that this case was not properly initiated in accordance with the rules of the trial High Court. Surprisingly, the 1st and 2nd respondents did not reply neither did they submit to the contrary. I must say from the outset that the commencement of a suit is very fundamental to the determination of issue of jurisdiction. An action wrongly commenced is incompetent and this will rob the court the jurisdiction to hear and determine same.
Order 5 Rule 6 of the Oyo State High Court (Civil Procedure) Rules 1986 provided as follows:-
“Subject to the provisions of these rules or of any written law in force in the state, no writ of summons for service out of jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of court or a judge in chambers”
In the instant case, the following are not in dispute:-
(i) The Defendants/Appellants’ address for service is in Lagos, outside the jurisdiction of the Oyo State High Court of justice
(ii) No leave of the court was sought or obtained before the writ of summons was issued.
The Appellants have strenuously submitted that the absence of the leave of the trial court to issue the writ of summons is fatal to this case. It is a well settled principle of law that a court is said to have jurisdiction and therefore competent to determine a suit when:-
a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other.
b) The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction, and c) The case comes before a court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim (1962) 3 SCNLR 34;
Rossele v. A. C. B. Ltd (1993) 8 NWLR (Pt. 312; and Apadi v. Banuso (2008) 13 NWLR (Pt. 1103) 204 at 219.
I think that these pre-conditions are conjunctive and the non fulfilment or absence of any of them automatically robs the court the jurisdiction to hear and determine the suit. The pertinent question to be answered in this case is did the respondent fulfil all these conditions in commencing this suit? The answer is in the negative. As I earlier pointed out, the writ of summons was addressed to be served outside the jurisdiction of the Oyo State High Court i. e. to be served in Lagos, and the leave of that court was not sought and obtained before it was issued. In the case of Intra Motors Nig. Plc v. Akinlove (2001) 6 NWLR (Pt. 708) 61 at 72, the Court of Appeal in consideration of the same rules of the Oyo State High Court held as follows:
“After careful consideration of the above submissions in the two briefs, the 1st issue, I will begin by reiterating the settled law that where the address of the defendants is outside the jurisdiction of the trial High Court and the said defendant is thus residing outside the court’s jurisdiction, it is condition precedent for the exercise of court’s jurisdiction over him that a valid writ of summons must be issued and served on him. Also in that circumstance and under the appropriate rules of court, the issuance of such a writ and its service on the said defendant can only be valid where the leave of the High Court was sought and obtained for the issuance of the said writ of summons and for its service on the defendant. See Nwobueze v. Okoye (1988) 4 NWLR (Pt. 91) 664; 7up bottling Co. Ltd v. Trio Commodities Co. Ltd (1996) 6 NWLR (Pt. 455) 441; Aermacchi 5. P. A. v. AIC Ltd (1986) 2 NWLR (Pt.23) 443. In the present case, the relevant rule which makes it mandatory to obtain leave to issue and serve writ of summons on the defendant who resides outside the jurisdiction of the court is Order 5 Rules 6 and 14 of the High Court (Civil Procedure) Rules of Oyo State 1988′.
My Lords even though this decision is merely persuasive in nature, I agree with the reasoning therein stated. This court in the case of Nepa v. Onah (1997) 1 SCNJ 220 after considering earlier decision in Nwabueze V. Okoye supra, held per Mohammed JSC as follows:-
“Section 97 of the Sheriffs and Civil Process Act is the section which deals with the issuance of writ and coupled with the provisions of Order 2 Rule 16 of the High Court (Civil Procedure) Rules of Bendel State, it is abundantly clear that signing or sealing a writ for service outside jurisdiction without leave of the court or a judge is a fundamental breach of statutory requirement”.
In conclusion at page 231, His Lordship held as follows:-
“ ….. Both the writ of summons and the service on the appellant are declared invalid, null and void”.
Applying these principles of law to the appeal at hand, I hold that failure of the respondent to seek and obtain the leave of the court or the Judge to issue and serve the writ of summons outside the jurisdiction of the court amounts to fundamental defect and not a mere irregularity which can be cured, hence I have no hesitation in declaring both the Issuance and the service of the said writ of summons outside the jurisdiction as invalid.
The insertion of 30 days grace in the writ of Summons does not change the position. For the avoidance of any possible doubt, the Writ of Summons and service of same outside the jurisdiction of the Oyo State High Court without the leave of the Oyo State Court are bad and invalid.
I am satisfactory foretified by the eloquent decision of my learned brother Ogwuegbu, JSC in Nepa v Onah Supra at p 694 thus:-
“In this case, the writ of summons which initiated the proceedings leading to this appeal was irregular in failing to comply with section 97 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990 and Order 2 Rule 16 of the High Court (Civil Procedure) Rules of the former Bendel State of Nigeria applicable in Edo State. The issuance of the writ of summons for service on the 8th defendant who is in Lagos and outside the jurisdiction of the court in Benin without the leave of the court is a fundamental irregularity.
The writ of summons having been signed and sealed without leave, the plaintiff has not issued any proceedings in the manner prescribed by the rule. The writ is a nullity and the court cannot cure the defect. In effect, there are no proceedings before the trial court. See Nwabueze & Or. V. Obi-Okoye (1988)4 NWLR (Pt.9.1) 664 and Pritchad V. Deacon & Ors. (1963)1 Ch. 502.
Non-compliance with order 2, Rule 16 of the High Court (Civil Procedure) Rules of Bendel State renders the writ of summons a nullity. Non-compliance with section 97 of the Sheriffs and Civil Process Act renders the service on the 8th defendant null and void also.”
Uwais CJN supports the position in his statement at p 693 of that case, thus:-
“It is settled by the decision of this court in Nwabueze & Anor v. Obi Okoye, (1988)4 NWLR (Pt.91) 664 that where the Rules of High Court provide that before a writ of summons, to be served out of jurisdiction, is issued leave of the High Court must be obtained; and if no such leave is obtained prior to the taking out of the writ then, the writ is vitiated and would be declared null and void. The decision is binding on all courts by the doctrine of stare decisis. The lower courts were, therefore, in error when they failed to declare null and void the writ taken out by the respondent, as plaintiff, without leave.”
Finally, Kutigi JSC as he then was emphatically said at p 693 paragraph E-G of the NEPA v. Onah Supra:-
“At the material time when the writ of summons was issued for service against the defendant/appellant outside the jurisdiction, the provisions of order 2 rule 16 of the Ben del State High Court (Civil Procedure) Rules, 1976 ought to have been complied with. It is trite that where a defendant is out of jurisdiction, no writ for service can be issued except with leave of the court. The issue of the writ of summons and service of the same writ on a defendant are conditions precedent to the exercise of a court’s jurisdiction over a defendant. In the instant case a condition precedent to the issue of the writ of summons against the defendant/appellant was that leave of the High Court had to be obtained first before the writ could be issued. It is not disputed that the defendant/appellant is outside the jurisdiction of Bendel State High Court, the plaintiff therefore had to obtain leave of the High Court before the writ of summons could be issued. This he failed to do. The entire writ of summons served on the defendant/appellant in this case was therefore clearly a nullity and ought to be set aside. And it is hereby set aside. (See Nwabueze & Anor v. Obi-Okoye (1988) 4 NWLR (Pt.91) 664; (1988) NSCC Vol. 19 part 3.”
Having declared Issuance of the writ of Summons and the service of the writ of summons as invalid and void, any other issues raised for determination in this appeal become mere academic issue which would not affect the outcome of this appeal in any banner. Hence it would not attract our attention. It is trite that when an issue becomes academic or hypothetical in nature, a court of law will have no jurisdiction to hear or determine it. See Zenith Plastic Industries Ltd v. Samatech Ltd (2007) 16 NWLR (pt. 1060) 315 at 341; Lawani Alii & Anor v. Gbadamosi Alesinloye (2000) 4 SCNJ 264 at 297 per Iguh JSC.
Finally this appeal is meritorious and should be allowed, same is allowed by me. The Issuance and the service of the writ of summons addressed for service on the appellants who reside in Lagos outside the jurisdiction of the trial High Court and dated 31/3/98 are bad and accordingly declared invalid, null and void and consequently struck out with N50,000 costs to the Appellants.