Touton S.A. V. Grimaldi Compagnia Di Naviga Zioni S.P.A. & Ors (2010)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
JOHN INYANG OKORO, J.C.A. (Delivering the lead Judgment)
By a Writ of Summons and Statement of Claim dated the January, 2006; the Plaintiff/Appellant claimed the following against the Respondents;
“1. From the 1st & 3rd Respondents jointly and severally, the sum ‘8017,441.94
- From the 2nd and 3rd Respondents jointly and severally, the sum of ‘80100,804.41
- Interest on the aforementioned sums at the rate of 10% per annum from 5th May, 2005 till the date of Judgment, and thereafter, at the rate of 10% per annum until the Judgment debt is fully liquidated”.
The basis of the Appellant’s claim is that the Respondents, all Italian based companies, failed to exercise due diligence or care in storing, taking care, custody and the carriage, upon its vessels – the MV “Grande Argentina”, MV “Grande America” and the MV “Grande Nigeria”, of its cargoes of 4,000; 3,200; 3,200; 800 and 1,600 bags respectively of fermented Nigerian cocoa Beans, delivered to it intact and in good order and condition, from Lagos, Nigeria to Amsterdam. The Appellant made claims on the Respondents for losses which it had suffered. The Appellant also filed a Motion Ex-parte dated 2/2/06, seeking the leave of the court to serve the writ of Summons and Statement of Claim and all other processes to be served in the suit on all the Respondents (being companies not resident in and also not carrying on business in Nigeria) by courier service at their place of business in Italy. The court granted the motion.
The Respondents thereafter entered a conditional appearance on 19th April, 2006, and filed a Motion on Notice of the same date, seeking an order striking out/and or setting aside the Writ of Summons and/or the service thereof on them on grounds that-
“(a) No leave of court was sought for and/or obtained for the issue of the Writ of Summons therein
(b) The Writ being one for service outside Jurisdiction was not so endorsed as required by relevant law, and
(c) The Writ of Summons being one for service outside the Jurisdiction cannot limit the period within which the Defendants could enter appearance to eight (8) days”.
The court below, in its Ruling delivered on 1st February, 2007, upheld the said Motion on Notice and set aside the Plaintiff/Appellant’s writ of summons and the service thereof and thereafter struck out the suit.
The Appellant, being dissatisfied with the entire decision contained in the said Ruling filed its Notice of Appeal dated 15th February, 2007 on the same date. The said Notice of Appeal, found on pp.124-126 of the record contains two grounds of appeal.
The Defendants/Respondents thereafter, fired their Respondents’ Notice dated 4th June, 2008 on 6th June 2008 of their intention to contend that the ruling of the trial court should be affirmed on two grounds other than those given in the Ruling. The Appellant has however given notice of preliminary objection to ground two of the Respondents, Notice. I shall return to this anon.
From the two grounds of appear fired by the Appellant in this appeal, the learned counsel for the Appellant has distilled two issues for the determination of this appeal thus –
“1. Was the Learned Trial Judge right in holding that the Writ of Summons is not in compliance with Section 99 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria, 1990? (Ground 1 of the Notice of Appeal);
- Is the Writ of Summons issued in this matter valid? (Ground 2 of the Notice of Appeal)”.
The Respondents have also formulated two issues for determination viz:-
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