JVC Professional Products (U.K.) Ltd V. Mr. Michael Famuyide & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA. JCA (Delivered the Leading Judgment)

The plaintiffs (now Respondents) commenced an action at the High Court, Lagos State and by their writ of summons and statement of claim, dated 31st day of October, 2002, sought for the following reliefs against the defendant (now appellant). The reliefs are:-

“12 a. The sum of N554, 736,000.00 (Five Hundred and fifty four million seven Hundred and Thirty six Thousand Naira only) being the commission due to the plaintiffs from the equipment worth N3,467,100.000.00 (Three Billion, Four Hundred and Sixty seven million, One Hundred Thousand Naira only) sold to the Nigerian Television Authority sometimes in the year 2000.

Interest at the rate of 21% per annum from the year 2000 until judgment is delivered and 6% thereafter until the sum is fully liquidated.”

The plaintiffs/Respondents filed a motion Ex parte to serve the writ of summons and statement of claim on the Defendant/Appellant in the United kingdom outside the jurisdiction of the High Court of Lagos State and by substituted means. The application was granted as prayed by the learned trial judge on 27th January, 2003. Upon service of the writ of summons and statement of claim by substituted means in the United Kingdom, the Appellant in response entered a conditional appearance on the 14th day of July, 2003. On 12th of September 2003, the appellant filed a motion praying for an order discharging the order of the High Court of Lagos State directing service of the originating processes out of jurisdiction by substituted means on it, and a further order setting aside the said service on the appellant.

The application was predicated on the following grounds namely:

1. That the order for service outside the court’s jurisdiction was obtained upon misrepresentation or concealment of material facts.
2. Had all the material facts been disclosed on the affidavit in support of the application the court would have found that it did not disclose a good/arguable case.
3. The affidavit in support does not disclose a good/arguable case and does not conform with the requirements of Order 8 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 1994.

Upon hearing parties on the merit of the application, the Learned trial Judge Kekere-Ekun J. in a considered Ruling held at page 96 of the record as follows:-

“I hold that there is no basis for discharging the order of this court granted on 27/1/03 directing the service of the processes herein on the defendant/Applicant outside the jurisdiction of the Court. It is accordingly refused. The application to set aside the service of the said processes on the defendant is also refused. The application is accordingly dismissed.”

Aggrieved with the ruling of the court below, appellant lodged an appeal to this court vide its Notice of Appeal dated 23rd day of March 2005 which same was amended by leave of this court

granted on 19th day of May, 2009. The amended Notice of Appeal contained Seven grounds of appeal. In accordance with the practice of this Court, Appellant’s brief of argument settled by B.J. Fagbohunlu, (SAN) was filed on 22/5/09. While 1st and 2nd respondents filed their brief of argument on 19/06/09. At the hearing of the appeal, Appellant’s counsel Mr. Adegbonmire withdrew the appeal against the 3rd respondent and same was deemed dismissed pursuant to Order 11 Rule 5 of the Rules of Court 2007. A notice of preliminary objection dated 18/6/09 and filed on 19/6/09 by the respondents was argued first by Mr. Adebayo Esq. Mr. Adegbonmire in response stated that the appellant’s response was embedded in the reply brief filed on 28/10/09. He adopted and relied on same. Learned counsel also adopted the appellant’s brief of argument filed on 28/5/09. Mr. Adebayo, on the other hand adopted 1st and 2nd respondents brief filed on 19/6/09.

From the seven grounds of appeal appellant distilled two issues for determination as follows:-

(1) Whether the trial Judge’s approach to the Respondents’ non-compliance with Order 8 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 1994 was correct, having regard to the special nature of the jurisdiction under the aforesaid Order 8. This issue arises from grounds 1, 2 and 6 of the Amended Notice of Appeal.

(2) Whether the trial Judge’s approach to the issue of misrepresentation was correct, having regard to the special nature of the jurisdiction under Order 8 of the High Court of Lagos State (Civil Procedure) Rules 1994. This issue arises from Grounds 3, 4, 5 and 7 of the Amended Notice of Appeal.

On the other hand the respondents also formulated two issues for determination thus:-