Jumosima Wari & Ors V. Mobil Inc Of America & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

The Appellants in the three (3) appeals had taken out separate writs in Suits No. FHC/UY/CS/44/04 and FHC/UY/CS/46/04 against the Respondents in the Federal High Court sitting at Uyo, Akwa Ibom State. The addresses endorsed on the writs for service on the Respondents were as follows:-

“(1) Mobil Incorporated of America, c/o Mobil House, Victoria Island, Lagos.

(2) Mobil Producing (Nig.) Ltd. of Mobil House, Lekki Express Way, Victoria Island, Lagos.”

Also endorsed on the writs, was the following command to the Respondents:-

“YOU ARE HEREBY COMMANDED that within eight days after service of this summons on your inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suit of Fubara Igbalibo and others. TAKE notice that in default of your so doing, the plaintiffs may proceed therein and judgment given in your absence.”

Upon service of the writs on the Respondents, the 2nd Respondent filed a notice of preliminary objection challenging them on the ground that the 1st Respondent being a Company incorporated, based and doing business in the United States of America, leave of court was required to issue and serve the writs on it. Thereafter, the Appellants filed a motion seeking inter alia, to “delete the name of the 1st Respondent as a party from the statement of claim

The preliminary objection and the Appellants’ motion to amend the statements of claim in the suits were consolidated and taken together in Suit No. FHC/UY/CS/46/2004.

In a ruling delivered on the 25/07/2006, that court found that the writs were nullities on the ground of the absence of the requisite leave of court for their issue and service outside jurisdiction and accordingly set same aside. In consequence, the Appellants’ motions to amend were struck out.

Being thoroughly dissatisfied with the decision, – apparently, the Appellants brought the present appeals against same, which by the order of the court, were consolidated for the purpose of hearing and determination. Because the grounds of the appeals against the decision and the issues for determination distilled therefrom by the learned counsel for the parties were the same, the court directed the learned counsel to file composite brief each for the appeals.

The Appellants’ Amended brief settled by Mr. Emonena B. Ukiri, Esq., learned counsel for the Appellants was filed on the 18/1/2010 while the Respondents ‘brief, settled by Isah Seidu, Esq., was filed on the 4/3/2010, but deemed on the 16/9/13, the date of the oral hearing of the appeal.

At the hearing, E. B. Ukiri, Esq., leading M. O. Inyang, Esq., for the Appellants adopted the Appellants amended brief and urged the court to allow the appeal and set aside the decision by the Federal High Court (to be called the lower court hereafter).

The Respondents’ brief was adopted by Mr. O. Oshobi, Esq., leading Mr. A. Aperua- Yusuf, Esq., and we were urged by him to dismiss the appeal and affirm the decision by the lower court.

Three (3) issues were submitted for determination in the Appellants’ brief as follows: