Fidelity Bank Plc V. The M.t. Tabora & Ors (2018) LLJR-SC

Fidelity Bank Plc V. The M.t. Tabora & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The Appellant, as the Plaintiff at the Federal High Court, Lagos, in an action in rem against the ship M. T. TABORA, took out a Writ of Summons on 17th December, 2002. The Writ of Summons was on 15th December, 2002, specially endorsed with the Statement of Claim. The Writ and the Statement of Claim have thereon six (5) Defendants, and they were to be served on the 1st, 2nd and 3rd Defendants, respectively the vessel, THE M.T. TABORA, Northern Fox Shipping (the owners of M.T. TABORA)and Eres N. V. Belgium. The vessel M. T. TABORA was in the Nigerian Waters until 15th December, 2002 when it sailed out of Nigerian Territorial Waters. Thus, the vessel M. T. Tabora, the 1st Defendant, having sailed out of Nigerian Territorial Waters and out of the jurisdiction of the Federal High Court a day before the action was filed on 16th December, 2002 and two days before the Writ of Summons against her was issued on 17th December, 2002.

On 22nd March, 2005, because the Writ of Summons could not be served earlier, Appellant, as the Plaintiff, then filed a motion ex parte praying for leave of the

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Federal High Court for the Writ of Summons, the Statement of Claim and the other processes in the action to be served on the Defendants, the Respondents herein, out of jurisdiction. The application ex parte was granted on 8th April, 2005, for the 1st, 2nd, 3rd and 4th Defendants to be served out of the jurisdiction of the trial Federal High Court “by DHL” on the 2nd Defendant, Northern Fox Shipping, P.O. Box 9657, Williamson Curacoa West Indies and Hansa Huis Eernest Van Dijikaai 10, Bus B, 2000 Antwerp Belgium – 10. It was further ordered “that the 1st, 2nd, 3rd and 4th Defendants enter appearance within 35 days of the date of dispatch of the processes herein by DHL Courier.” On the said 8th April, 2005, vide the same application, the 5th and 6th Defendants were struck off the Writ of Summons, and consequently out of the action.

On 12th April, 2005, the Respondents, as the remaining defendants, applied to the trial Court for an order setting aside the orders it made concerning them on 8th April, 2005. They had apparently become aware of the action pending against them. The trial Federal High Court heard the parties on the motion filed on 12th April, 2005.

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In its ruling delivered on 20th December, 2005 the trial Federal High Court granted the application, discharged the order made on 8th April, 2005 and set aside the order for service out of jurisdiction, through DHL courier, the writ of Summons and the processes in the action on the Respondents, the remaining defendants.

Meanwhile, before the Ruling delivered on 20th December, 2005, the Appellant, as the Plaintiff had filed on 8th December, 2005 an application for final judgment alleging that the Defendants had defaulted in entering appearance and filing their defence to its action. Against this motion, filed on 8th December, 2005, the Respondents filed on 20th February, 2006 Notice of Preliminary Objection. Both the application for final judgment and the Preliminary Objection to it were very fiercely contested. The ruling on the Preliminary Objection was delivered on 5th June, 2005. The Appellant, as the Plaintiff, did not Appeal the decision contained in the Ruling of 20th December, 2005.

In its Ruling delivered on 5th June, 2006 on the application for final judgment, the trial Court refused the application on the grounds inter alia, at pages 129 – 130 of the record, that –

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This Court having in its Ruling of 20th December, 2005 held that its jurisdiction cannot be invoked IN REM against MT TABORA i.e the 1st Defendant and having set aside the leave granted to the Plaintiff to amend its Statement of Claim upon which the Plaintiff’s motion is grounded and having set aside the purported service by DHL of the Amended Statement of Claim on the Defendants out of jurisdiction of this Court, I am unable to enter final judgment for the Plaintiff against the Defendants on a Writ of Summons which has not been served and an Amended Statement of Claim which has been set aside. The Defendant’s Notice of Preliminary Objection is upheld. The Plaintiff’s Motion on Notice dated 8th December, 2005 is hereby dismissed. (Emphasis supplied)

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The Appellant appealed the decision vide its Notice of Appeal filed on 13th June, 2006. The Respondents also filed Notice of Preliminary Objection to the Appeal on the ground that the Appellant did not Appeal the decision of 20th December, 2005. The Court of Appeal, Lagos Division heard the Appeal No. CA/L/551/2006, on 19th March, 2009 and

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dismissed it for lacking in merits; hence this further Appeal. The Appeal was brought on a total of 6 grounds of Appeal. The parties, in their respective briefs, argued the Appeal on four (4) issues formulated from the six (6) grounds of Appeal. The issues are as follows –

  1. Whether the Court of Appeal misdirected itself and came to a wrong decision in sustaining the Respondents Preliminary Objection to the Appellants Appeal on the ground that the Appellant did not Appeal against the Federal High Court’s Ruling of the 20th December, 2005.
  2. Whether the Court of Appeal erred in law in holding that proceedings which were a nullity could not, unless appealed against, be set aside by the lower Court and in failing to declare as a nullity the Respondents’ motion dated the 12th April, 2005 and filed before the Writ of Summons was served on the Respondents, together with the ensuing proceedings before the Federal High Court.
  3. Whether the Court of Appeal erred in law in failing to enter judgment in favour of the Appellant when it was patently clear that the Respondent had no intention of entering an appearance to the suit or filing

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a defence thereto.

  1. Whether the Court of Appeal embarked on an irrelevant consideration of the law relating to service of a Writ of Summons in admiralty proceedings.

The fortune of this Appeal turns on whether the 20th December, 2005 decision of the trial Court was void ab initio and without more ineffectual At the lower Court the Appellant’s Counsel was, at pages 298 – 299 of the Record, reported to have adopted a stance –

The learned Counsel for the Appellant posed a few questions which I find interesting. The first question is whether a Judge who has made an order for service of Court’s proceedings (sic: processes) on the Respondents by Courier and at the same time ordering them to put up appearance within 35 days, can turn around to set aside the order pursuant to an application by a party who has not been served with the Writ, and the learned Judge based his ruling on factual allegations contained in the affidavit filed in support of the said incompetent motion The 2nd question is, if the motion filed by Respondents on the 12th April, 2005 seeking to set aside the service of the Writ was incompetent, since it was filed before service

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of the Writ, can the learned Judge entertain the said motion and rely on averments in the affidavit in support of same to annul retroactively the orders which he had previously made and which had been carried out

(Emphasis supplied)

The indubitable fact, as can be gleaned from this summarised despondent mood or frustration of the Appellant, is that inspite of the bitter complaints of Appellant that the learned trial Judge was wrong in acceding to the application of the Respondents to set aside the service of the processes ordered to be served on them through DHL Courier Mail Service, and ordering on 20th December, 2005 the setting aside the service, by DHL Courier Mail Services, of the Writ of Summons and the Amended Statement of claim on the Respondents and the order that they enter appearance within 35 days, the orders made on 20th December, 2005 remain subsisting and extant. The Ruling of 20th December, 2005 and the Orders made therein have not been set aside. The hub question on which the entire superstructure of the Appellant’s Appeals at the lower Court and this Court spins are the questions – does that decision

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subsist, and if it does, of what consequence or effect does it impact on the Appellant’s application for final judgment The options open to the Appellant, as a party aggrieved by that decision of 20th December, 2005 are two, but in alternative. That is: by way of an Appeal or an application to the same Court to have the decision and the orders therein set aside ex debito justitae on grounds of jurisdictional ultra vires. There is no doubt that a Judge, for the purpose of the latter option, has jurisdiction to set aside his judgment or Ruling that is a nullity: OJIAKO v. OGUEZE (1962) 1 S.C.N.L.R. 112; EKERETE v. EKE (1925) 6 N.L.R. 118, SILIYUN v. MASHI (1975) 1 N.M.L.R. 55. If the learned trial Judge wrongly and without jurisdiction, as the Appellant alleges, assumed jurisdiction to entertain the application resulting in his Ruling of 20th December, 2005 that decision would have been a nullity ab initio and an exercise in futility, which ex debito justitae the said Judge was entitled to set aside.

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At the risk of repetition, the Ruling of 20th December, 2005 was not appealed. There was no application to have it set aside ex debito justitae by any party aggrieved thereby.

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It has not been set aside.

There is always, in this realm, a presumption in favour of the correctness of a Court’s judgment; and until that presumption is rebutted and the judgment set aside, it remains subsisting and prevailing between, and binding on, the parties. Consequently, it must be obeyed. Section 168(1) of the Evidence Act, 2011 (formerly Section 150(1) the Evidence Act, 2004) is enacted to provide emphatically that when any judicial act or order is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. The burden is on the party aggrieved by the judicial act, who thinks otherwise of its validity, to rebut this presumption and move for its setting aside.

This is not the first time the issue: whether a judgment of a Court of competent jurisdiction which a party assumes was per incuriam and a nullity ab initio does not need formal judicial steps taken to have it set aside is coming before this Court. It was addressed in OBA ALADEGBEMI v. OBA FASANMADE (1988) 3 NWLR (pt. 81) 129, and Eso, JSC in his statement opined thus –

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– For a Court of competent jurisdiction, not necessarily of unlimited jurisdiction

– has jurisdiction to decide a matter rightly or wrongly. If that Court never had jurisdiction in the matter, then its decision, without jurisdiction, is void. But then should a Court of law not even decide a point That is: the Court without jurisdiction decided without jurisdiction Should the decision just be ignored Surely it would not make for peace and finality which a decision of Court seeks to attain. It would at least be against public policy for persons, without a backing of the Court, to pronounce a Court decision a nullity, act in breach of the decision whereas others may set out to obey it. In my respectful view it is not only desirable but necessary to have such decisions set aside first – (Emphasis supplied)

This view, which not only has the support of the previous decision of the Privy Council in ISAAC v. ROBERTSON (1984) 3 ALL E.R 140, was cited with approval in the subsequent decision of this Court (Full Panel) in ROSSEK v. A. C. B LTD (1993) 8 NWLR (Pt. 312) 382.

The Appellant’s counsel seems to have been carried away by the oft quoted dictum of Lord Denning, MR in

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MACFOY v. U. A. C. LTD (1961) 3 ALL E. R. 1169 at 1172; (1962) A. C. 152 to the effect that:

If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court to declare it to be so. (Emphasis supplied)

This dictum has been rejected in this jurisdiction, as can be seen from the dicta in OBA ALADEGBEMI v. OBA FASANMADE (supra), and ROSSEK v. A. C. B LTD (supra). It does not represent any correct principle of the law in this country. The majority opinion in ROSSEK v. A. C. B LTD (supra) outrightly rejected the said view of Lord Denning, M. R. in MACFOY v. U.A.C LTD (supra) maintaining that it will lead to anarchy. On this, the majority opinion (of 6 against 1) in ROSSEK v. ACB LTD (supra) is that: A judgment of a Court of competent jurisdiction remains valid and binding unless and until it is set aside by an Appeal Court or by the Court itself, where it acted without jurisdiction and there is an unqualified obligation on every person against whom the decision is giving to

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obey it; and that to hold otherwise is to clothe the person against whom a judgment is given with the discretion to decide, in his wisdom, that the judgment is invalid and not binding on him; and further that this will amount to an invitation to anarchy.

The subsistence of the Ruling of the trial Court delivered on 20th December, 2005 is not in any doubt. It has not been set aside. It, therefore, does not lie in the mouth of the Appellant to say that the decision is not valid or binding. Until set aside the Ruling remains binding on the Appellant for what it decided and ordered. The net result or consequence of that decision is that –

  1. the leave granted on 8th April, 2005 to the Appellant, as the plaintiff, to serve the writ of summons, the Amended Statement of Claim and other processes of that Court on the Respondents, as the defendants, out of jurisdiction by DHL Courier Mail Service; and

II. the service on the Respondents, if at all, by DHL Courier of the writ of Summons, the Amended Statement of Claim and the other processes in the suit and

III. the order directing the Respondents as defendants, to

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enter their appearance to the suit of the Appellant within 35 days of the dispatch of the processes by DHL Courier had been discharged or vacated, and they so remain. The subsistence and bindingness of the Ruling of the trial Court decision delivered on 20th December, 2005 completely knock out the bases the Appellant stood to apply for final judgment in his suit against the Respondent. The Appellant could only apply for final judgment upon the service of the originating process, the Writ of Summons specially endorsed with the Statement of Claim (as amended), on the Respondents. The Appellant seems to concede this point. He submitted, correctly, on the authority of OKAFOR v. IGBO (1991) 8 NWLR (Pt 210) 476, that the issuance, and service of the Writ of Summons on the defendant, are the conditions precedent to the exercise of the jurisdiction which the trial Court may have over the subject matter of the action against the defendant; and that where there is evidence that service was not effected on the defendant any judgment emanating from such proceedings is a nullity. In my firm view, the trial was right when it held that, having set aside the leave it granted to the Appellant to

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serve the Writ of Summons and the Amended Statement of Claim on the Respondents by substituted means (through DHL Courier) and having set aside the purported service on the Respondent of the Writ of Summons and the Amended Statement of Claim by DHL Courier it was “unable to enter final judgment for the plaintiff (Appellant) against the Defendants (Respondents)” as its own order setting aside the order for service of the processes, and the service of the processes, on the Respondents out of jurisdiction had not been set aside. The lower Court on 19th March, 2009 finding the Ruling of the trial Court delivered on 5th June, 2006 “unimpeachable” held that there was “no reason to disturb same.” I cannot agree more. The lower Court cannot be faulted on this.

As I demonstrated in the foregoing reasons, there is clearly no substance in this Appeal and it is accordingly dismissed in its entirety. Parties shall bear their respective costs.


SC.106/2010

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