Owners Of The Mv “arabella” V Nigeria Agricultural Insurance Corporation (2008)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

These are another interlocutory appeals against the decisions of the Court of Appeal, Lagos Division (hereinafter called “the court below”) delivered on 3rd June, 2002, allowing in part the appeal of the cross-respondent. While affirming the finding of the trial court in its ruling delivered on 15th July, 1996 that the issuance and service of the writ, was void, it substituted the dismissal of the suit with an order of striking out. It held that the Cross-appeal was purely academic and therefore, struck it out.

The appellant while appealing against the said order striking out the suit, the cross-appellant, is appealing against the order striking out its cross-appeal on the said holding that it is academic. The facts briefly stated are that the appellant who is/was the plaintiff in the trial court, on 4th January, 1996, instituted an action in the Undefended List against three defendants jointly and severally claiming the sum of $34,578.80 (Thirty-four Thousand five hundred and seventy eight US dollars, eighty cents) as the amount owed it by the said defendants. Service of the Writ was effected on the defendants in Abuja at Plot 452, Tafawa Balewa Way, Area 3. Garki. Abuja without the leave of the trial court, It appears from the Records, that the 1st and 3rd defendants, paid the amount said to be owed by them to the Appellant, but the 2nd defendant (now the respondent/cross-appellant), is contesting the said suit, On 4th December, 1996, when the suit was to come up for hearing, the respondent/cross-appellant, filed a motion seeking an order for the dismissal and/or striking out of the suit as being incompetent or for lack of jurisdiction of the trial court to entertain it, After hearing arguments from the learned counsel for the parties, on 13th May, 1996, the learned trial Judge – Ukeje, J, (as he/she then was), in a considered ruling dated 12th July, 1996, but delivered on 15th July, 1996, set aside the said writ and its service and proceeded to dismiss the suit, In respect of whether the action was statute-barred in respect of the 2nd respondent/cross-appellant, he/she, held that it is/was not statute-barred, The appellant appealed to the court below against the order of dismissal of the suit, while the respondent/cross-appellant, cross-appealed in respect of the said decision that the action is/was not statute-barred, Because of the said decisions of the court below, the appellant has appealed to this Court, while the respondent has also cross-appealed,

The appellant filed three grounds of appeal and has formulated two issues for determination, namely –

“1. Whether the Court of Appeal was right in setting aside the issuance of service of the Appellant’s Writ of Summons taken out in the Federal High Court, Lagos on the grounds that leave was required to issue and serve the same on the Respondent at Abuja (Grounds 1& 2).

2. Was the Court of Appeal right in failing to enter judgment under the “Undefended List” for the appellant herein as against the respondent when it was clear that the said respondent has no defence to the suit and did not file any notice of intention to Defend as required under Order 3 Rule 11 Federal High Court (Civil Procedure) Rules. 1976 (then applicable) (Grounds 3) “.

On its part, the respondent/cross-appellant has also formulated two issues for determination. They read as follows:

“Issue No. 1: Whether the Court of Appeal was not right to have set aside the issuance and service of Writ of Summons. which was issued and served on the Respondent without leave of Court first sought and obtained in violation of the Sheriff and Civil Process Act Cap 407.

“Issue No. 2: Whether the appellant was entitled to judgment under the Undefended List when the Respondent has raised a preliminary objection to the jurisdiction of the court and has also filed a notice of intention to defend”.

When this appeal came up for hearing on 18th February, 2008, Olorunfemi Ayo, learned counsel for the appellant, adopted their brief and the cross-respondent’s brief. He urged the Court to allow the appeal and to dismiss the cross-appeal. He also referred to and relied on case No.7 in the List of Authorities – i.e. Abiola v. Federal Republic of Nigeria (1995) 3 NWLR (Pt.382) 203 @ 237-232 CA.

Ume, Esqr, – learned counsel for the respondent/cross-appellant, also adopted their brief and the Cross-Appellant’s brief. He informed the Court that he was abandoning their invitation to the court, to overrule its decision in the case of Abia State & 35 Ors v. Attorney-General of the Federation (2002) 6 NWLR (Pt.763) 264 which he allegedly stated is “erroneous” at page 13 paragraph 3-7 up to page 20 paragraph 3.2 before “summary/conclusion” of their brief. The same is hereby struck out.

He submitted, that it is wrong to say that the Federal High Court is one court or that Sections 96 and 99 of the Sheriffs & Civil Processes Act, are inapplicable or undeniable. He referred to case No.1 in their Additional List of Authorities – i.e. Salami v. Oseni (2002) 74 NWLR (Pt.788) 623 @ 626 C. A. ratio 1, in relation to the Cross-Appeal. He finally, urged the Court, to dismiss the appeal and allow the Cross-Appeal.

The said issues of both parties, in my respectful view, are substantially the same or similar although differently couched. I will therefore, deal with them together in this Judgment. I note that in paragraph 4.1 at page 3 of the Appellant’s brief, it is conceded that it is not in dispute that the writ of summons was issued at the Federal High Court Registry, Lagos and was served on the Respondent in Abuja – a place outside the jurisdiction of the Federal High Court sitting in Lagos, without the prior leave of the trial court being sought and obtained by the appellant. I note also that in the Respondent’s Brief, it is stated that the said writ, was to be served on the appellant (sic). It is also conceded by the Appellant in paragraph 4.2 of its Brief that the court below – per Aderemi, JCA (as he then was) correctly, identified the issue for determination before it when it stated at page 184 – last paragraph of the Records as follows:

“As shown in this appeal, it is the validity of the service of the Writ of Summons on the 3rd Defendant in the Court below and, who is now the respondent before us, that is being challenged.”

It is then submitted that “however”, the court below, at page 185 of the Records, held inter alia, as follows: