The Owners Of The Mv “msc Agata? & Anor V. Nestle Nigeria Plc & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the ruling of Hon. Justice Charles Efanga Archibong sitting at the Federal High Court, Lagos Division delivered on the 4th of May 2009. The facts that led to the appeal are as follows:

The Plaintiff, now 1st Respondent commenced an admiralty action at the trial court on the 23rd of February, 2007 via a writ of summons and statement of claim against 1st Defendant now 1st Appellant, the 2nd Defendant, now 2nd Appellant and the 3rd Defendant, now 2nd Respondent claiming damages for breach of a contract of affreightment for the non-delivery of two containers numbered GSTU 651256/6 and GSTU 897803/9 which were shipped on board the said vessel from Antwerp, Belgium to Apapa Port, Lagos, Nigeria.

Upon service of the writ of summons and statement of claim on the 1st and 2nd Defendants (now Appellants), the Appellants filed a Motion on Notice dated 30th of October, 2008 praying the court for an order striking out and/or setting aside the writ of summons and/or the service thereof on them on the grounds of failure to obtain prior leave of court to issue and/or serve the said writ of summons.

Issues were joined by parties on the said motion. The trial court then delivered its ruling dated 4th of May 2009 in which it refused the application to strike out the writ of summons or set aside the service thereof on the Appellant. Being dissatisfied with the ruling, the Appellants have hereby appealed to this court.

Appellants’ brief dated 21st of May, 2010 was filed on the 24th of May, 2010. Appellants’ reply brief to the 1st Respondent’s brief was dated and filed on the 7th of July, 2010. 1st Respondent’s brief was dated and filed 17th of June, 2010.

Appellants’ counsel, Olakunle Yusuff Esq., identified four (4) issues for determination as follows:

1. Whether the lower court could assume and exercise jurisdiction over the Plaintiff/1st Respondent’s claim when it is apparent that the issuance and the service of the Writ thereof on the Appellants one of whom is outside the jurisdiction of the court are void ab initio as same was done without prior leave of court
2. Whether the Plaintiff/1st Respondent’s action which did not name any vessel as party thereto is an action in rem?
3. Whether the purported substituted service of the 1st Appellant (who is ordinarily resident outside the jurisdiction of the Court) through the 2nd Appellant, Messrs Comet Shipping Agencies Nig Ltd at the time of the issue of the writ aforesaid was proper service?
4. Whether the provisions of Section 97 and 99 of Sheriff and Civil Processes Act, cap 407 Laws of the Federation of Nigeria LFN, 2004 are applicable to the Federal High Court?

On the other hand, counsel to the 1st Respondent, V.H. Izah Esq. identified a sole issue for determination as follows:

“Whether service of the Writ of Summons on the Second Appellant, Comet Shipping Agencies Nigeria Ltd, as local agent to the First Appellant, The Owners of The MV MSC Agata was proper service, and therefore leave to issue and serve the Writ of Summons on the First Appellant though ordinarily resident outside jurisdiction of the court was not required.”

Counsel to the 2nd Respondent, Yomi Alagbada submitted that his client is a nominal party and as such filed no briefs.

I have observed that most of the Appellants’ issues, though worded differently, refer to the same issue. Issues 1, 3 and 4 are indeed addressing the same issue to wit whether the issuance and subsequent service on the Appellants of the writ of summons was proper. I have thus consolidated the issues as follows:

1. Whether the issuance and service of the writ of summons on the Appellants was proper
2. Whether the Plaintiff/1st respondent action at the trial court is an action in rem

ISSUE ONE

Appellants’ counsel argued that the trial court lacked jurisdiction to adjudicate in this matter because the issuance and service of the writ of summons on the Appellants was not in accordance with the applicable laws governing the issuance and service of writ outside jurisdiction. Counsel submitted that the basic or fundamental principle of law is that a court must be competent in order for it to adjudicate on any matter referred to it and that any defect in competence will render the whole proceedings a nullity. He cited Madukolu v. Nkemdilim (1962) 2 SCNLR 341

As regards the issuance of the writ, Counsel argued that in this case, prior leave of the court was needed to issue and serve a writ of summons on a party who is out of jurisdiction, but this was neither sought nor obtained. Counsel pointed out that the rules regulating service outside jurisdiction is governed by Order 6, Rule 12 (1) of the Federal High Court (Civil Procedure) Rules, 2000 and Section 97 and 99 of the Sheriff & Civil Process Act, Cap 407, LFN 1990. Counsel pointed out that issuance and service of writs, though interrelated are two distinct conditions that must be fulfilled before a court can assume jurisdiction over any matter. Counsel cited Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR Pt. 109 Pg. 250 at 265; Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR Pt. 1097 Pg. 182 at Pg. 206. Counsel then submitted that the 1st respondent having failed to seek and obtain the leave of the court to issue the Writ on the Appellants outside the jurisdiction of the Federal High Court violated the whole proceedings in the suit. He cited NEPA v. Onah (1997) 1 NWLR Pt. 484 Pg. 680; NPA v. Eyamba (2005) 12 NWLR Pt. 939 Pg. 409; Odu’a Investment Ltd v. Talabi (1997) 10 NWLR Pt. 523 Pg. 1 at Pg. 51. Counsel further argued that failure to comply with the provisions of Order 6 Rule 12 (1) of the Rules is a fundamental vice which goes to the issue of jurisdiction. Counsel contended it is not a matter of mere cosmetic importance which can be waived off with levity. He cited Odofin v. Agu (1992) 3 NWLR Pt. 229 Pg. 350 at 373; NNPC v. Elumah (1997) 3 NWLR Pt. 492 Pg. 195 at 204; Carribean Trading & Fidelity Corporation v. NNPC (1992) 7 NWLR Pt. 252 Pg. 161 at 180; Kida v. Ogunmola (2006) 13 NWLR Pt. 997 Pg. 377 at 394.