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In The Supreme Court of
On Friday, the 14th day of
January 2005
Before Their Lordships
S.C. 288/2002
Between
And
Judgement of the Court
Delivered by
Ignatius Chukwudi Pats-Acholonu
J.S.C.
The appellant had instituted an
action by writ of summons against the respondents who live outside the
jurisdiction of
The respondents filed a notice of preliminary objection to set aside the
issuance and service of the writ and the statement of claim, and also to
strike out the suit. In the course of the argument one of the questions that
arose for determination by the court was which rules of court applied
id
est,
- the 1972 Rules or the 1994 Rules of Lagos State High Court. The
High Court held that it was 1972 Rules that applied in the case and ruled
inter alia as follows: -
(a)
that the applicable rule is 1972 rules.
(b)
that the grant of leave to issue a writ
for service out of jurisdiction can be obtained before or after the filing
of the writ provided it is obtained before service of the writ itself.
(c)
that once the defendants are given 30 days
to enter appearance, the number of days specified in the writ does not
matter. The writ not having been endorsed for service out of the
jurisdiction is incompetent.
The appellant piqued by the ruling of the court below appealed
to the Court of Appeal on the questions of
applicable rules of court, and also on the writ not having been endorsed.
The respondent cross appealed on the aspect of the decision dealing with
subsequent leave to issue and serve and the number of days limited for
appearance. The Court of Appeal dismissed the appeal and allowed the
cross-appeal. The appellant doggedly appealed to this court. On the strength
of the grounds of appeal filed, three issues were framed by the appellant
and they are as follows:-
"(a)
whether the learned justices of the Court of Appeal were right in holding
that obtaining leave to issue after the filing of the writ of summons but
before actual service of same on the defendants is bad in law?
(b)
were the learned justices of the Court of
Appeal were right in setting aside the service of the writ of summons,
statement of claims and other originating processes on the defendants in
(c)
were the learned justices of the Court of
Appeal right in holding that the old rules (1972 rules) as against the new
rules (1994 rules) applies to the proceedings taken before the lower court
on the 19th day of November, 1997?"
The respondent replicando filed 5
issues for determination. It seems to me that the issues framed by the
appellants represent to my mind the real essence of the case; in other
words, they constitute the questions which the court is asked to provide
worthy answers.
On issue one the gamut and premise of the argument of the appellant are that
the whole decisions of the High Court and the Court of Appeal rivet on
elevating an unimportant topic in relation to matters of form and procedure
to paramountcy and over reliance or over emphasis on matters bothering on
technicality. In other words the lower courts fixed their minds on mere
abstruse matters in relation to procedural law and allowed themselves to be
obscured from looking at the real issues to be determined. The learned
counsel for the appellant cited the case of Okenwa
v. Military Governor of Imo State
(1996) 6 NWLR (Pt.455) at p. 394
wherein this court spumed the over reliance on mere technicality to
determine a matter, a state of affair from which the courts are now shifting
their ground, and concentrating on the substance of the case. He referred to
the eloquent
pronouncement of the Court per
Ayoola, J.S.C, in
C.T. and F.C. v. NNPC
(2002) 14 NWLR (Pt.786) 133 which
seems to decry the attitude of the court in quest of justice getting
itself mired in purely technical considerations.
His argument is that the court should eschew the non essential matter and
concentrate in doing justice stressing that once the defendant was served
after the leave was obtained it should not matter whether the prayer for
service of the writ was first obtained or not before the issue.
The respondent on the other hand drew the attention of the court to the
obvious strict language of the statute which has the effect of a command and
stressed that non abidance of the dictates of Sheriffs and Civil Process
Act, Cap. 407 of the Laws of the Federation (which demands that service out
of jurisdiction be done in a special way,) would render any act done
contrary to that provision null and void. Reference was made to such cases
as Nwabueze v.
Okoye (1988) 4
NWLR (Pt.91) 664 at 698;
Fumudoh v. Aboro
(1991) 9
NWLR (Pt.214) 210;
Erokoro v. Government of Cross Rivers
State (1991) 4 NWLR (Pt.185) 322
at 337 and University of
Ife v. Fawehinmi Construction Co. Ltd. (1991)7
NWLR (Pt.201)
26; Achineku
v. Ishagba
(1988) 4 NWLR
(Pt.89) 411 at 420. The respondents' ground is that where the statutory
provision uses the word "shall" a party cannot elect to abide by the
provision or seek to water down the intent and tenor of the spirit of the
statute.
The courts established by the Constitution are vested with power to do
justice. In their avowed onerous responsibility or duty to do justice they
are guided not just by the tenets and spirit of the law but also by the
rules of court which are aids in the administration of justice. The rules of
court are statutory instruments not elevated to the pedestal of statutes.
Now Order 2 rule 4 of the 1972
"subject to the provisions of Part
vii of the Sheriffs and Civil Process Act, no writ of summons for
service out of the jurisdiction, or of which notice is to be given out of
the jurisdiction shall be issued without the leave of the court or a
judge-in-chambers"
The rule is subject to the contents of the statute referred to.
Section 97 of the Sheriffs and Civil
Process Act states as follows:
"Every writ of summons for service under this part out of the state or the
Capital Territory in which it was issued shall, in addition to any other
endorsement or notice
required by the law of such state or the Capital
Territory, have endorsed thereon a notice to the following effect: '
This summons (or as the case may
be) is to be served out of the ... State (or as the case may be) and in the
... State (or as the case may be)'."
Section 99
states:
"The period specified in a writ of summons for service under this part as
the period within which a defendant is required to answer before the court
to the writ of summons shall be not less than 30 days after service of the
writ has been effected, or if a longer period is prescribed by the rules of
the court within which the writ of summons is issued, not less than that
longer period".
A proper and careful examination of the purport of Lagos State High Court
Rules of 1994 and Section 97 seems to impress one of the
importance and nay the emphasis of obtaining the leave of the court
before a writ that is meant to be issued outside the jurisdiction of the
court is issued. If the leave to issue and serve the writ out of the
jurisdiction is not first, obtained, it would appear ex facie to
defeat the seeming imperativeness which is patently clear and manifest in
the language of the statute. On the face of it, one might question how a
party intending to cause a writ to be served out of the jurisdiction would
not first seek the leave to issue and serve the writ for it is the condition
sine qua non. It is important that both the statute and the rules
must at all times guide a party seeking the court's powers to avail him of
the remedies he seeks to rely upon. However, the court in this endeavor
should counsel itself on the paramountcy of justice at all times.
Ayoola, J.S.C had in
C. T. and F. C. v. NNPC Supra said;
"The question which gave rise to this appeal came before the High Court of
Lagos State by way of preliminary objection to the originating summons
issued at the instance of the respondent whereby the respondent sought to
set aside an award made on 28th March, 1990 by the arbitrators/
respondents in favor of the appellant which was at all material times, a
company resident in the United States of America. The substance of the
preliminary objection was that the originating summons had been issued
without the leave of the High Court as stipulated by
Order 2 r. 4 of the High Court of
Lagos State (Civil Procedure)Rules, 1972 ("the Rules") which was then
the applicable Rules. Those Rules have now been replaced by the
“Subject to the provisions of part vii of the Sheriffs and Civil Process
Act, no writ of summons for service out of the jurisdiction, or of which
notice is to be given out of the jurisdiction, shall be issued without the
leave of the court or a judge-in-chambers”.
The rules did not make similar provisions in regard to issue of originating
summons. However, notwithstanding that there is a difference between a writ
of summons and an originating summons; the court below held that
Order 2 r. 4 applied to
originating summons as it applied to writ of summons. The main question
which arises in this appeal is whether having so held it should not have
declared the origination summons issued, without leave, to commence the
proceedings a nullity by reason of non-compliance with
Order 2 r. 4".
He repudiated this narrow view which seeks to asphyxiate the court in its
bid to do justice. There is now a body of corpus juris on the complex
issue of what constitutes the validity of a writ meant to be served out of
the jurisdiction first made without leave. What befuddles one in this case
is that the proposed endorsement that ought to generally be made on the writ
which was to be served out of the jurisdiction was not done. It may be
argued and with good reason that the endorsement should have been done by a
court official and therefore the responsibility should not be laid at the
feet of the appellant. The argument of the respondent would appear to mean
that the writ should wear iron cast garb to qualify for its validity.
Ordinarily one might conceivably argue that it is the duty of the proponent
of the action to ensure that the writ does wear the veil of validity by
ensuring that it is so endorsed but then he is not an officer of the court.
The appellant has referred this court to the case of
Adegoke Motors v. Adesanya
(1989) 3 NWLR
(Pt.109) 250; (1988)
Vol. (Pt.III)
NSCC 53,
where Oputa, J.S.C
said;
"There must be a difference and distinction between
the validity of a writ of summons and the
validity of the service of the same writ.
If a writ is valid, any default in service
becomes a mere irregularity which may make
such a writ voidable but definitely not void".
Indeed the court should wherever possible admit of no technical
constraints but concern itself with the validity
of the writ. It is important to restate
for emphasis that section 97 of the Sheriffs and
Civil Process Act prescribes and demands that a
writ proposed for service outside the
jurisdiction of the court shall in addition to any
other endorsement be endorsed "to be served...
out of the State". A careful examination
of the prescription of the Act shows that a writ
to be served out of the jurisdiction which does
not have such endorsement is irregular
procedurally speaking but nowadays courts
are shying away from over reliance on mere technicality.
The
appellant had referred this court to the learned opinion of the highly
revered jurist Glanville Williams 10th
Edition 1974 of
Salmond
on Jurisprudence at 476 which runs thus:-
"So far as the administration of justice is concerned with
the application of remedies to violated rights,
we may say that the substantive law
defines the remedy and the right while law
of procedure defines the modes and
conditions of the application of one to the other."
That is the correct statement of the law. I believe that where
the prescription of the law is mandatory even if
only on a procedural level, a court in its
quest to do justice ought generally to be imbued
with the dictates of reason and the nature of the
particular case to seek to accommodate a
party that appears to have run foul of the
dictates of a procedural law. The contention in this case is that the
appellant had unwittingly not done what it was
supposed to do, id
est,
the course which the law has insisted
in this type of matter has not been followed. Reference was therefore made
in the case of
Nwabueze v.
Okoye
(1988) 4
NWLR (Pt.91) p. 664 at 698,
where Obaseki,
J.S.C said;
'The writ of summons in this matter was issued without
leave at the time of issue. The issue of the writ
without leave is therefore invalid and
null and void".
In
'The applicant must show a serious issue to be tried in respect of each
cause or cause of action in respect of which he asks for permission... The
court has a general discretion to decide whether or not the case is a proper
one for service out of the jurisdiction. In particular it must consider the
question of forum convenience namely, in which forum the case could
most suitably be tried for the intent of the parties and for the
end of justice."
What all this amounts to is that no writ of summons or originating summons
meant to be served outside the jurisdiction may validly be issued without
leave being first obtained by the court as the court has a discretion to
grant or refuse. The term "leave" in judicial context imports the exercise
of the court's discretion either positively or negatively as it would be
outside the bounds of reason to take for granted that the court would
willingly grant an application. The raison de tre
for first securing the leave of the court is that the court owes it as a
duty to determine whether the person sought to be served outside the
jurisdiction can be conveniently
tried elsewhere. However, in this case the respondents have
known and were very much aware of the case against them and ought
not seek protection under the veil of
technicality. See Seaconsar
Far East Ltd. v. Bank Markazi
Jombouri Islam Iran
(1993) 4 All ER 456 and also
Spiliada Maritime Corp v. Consular
Ltd. Subnom Spiliad
(1987) AC 460.
In that latter case the issue that was before the House of Lords was the
forum convenience and the jurisdiction. Lord Joff
of Cheverly in the leading judgment said;
"In the Abidin
Daver (1984) AC 398, 411, Lord
Diplock stated that, on this point, English law
and Scots law may now be regarded as indistinguishable. It is proper
therefore to regard the classic statement of Lord
Kinnear in Sim v.
Robinow
(1892) 19 R. 665 as expressing
the principle now applicable in both jurisdictions," He said, at p. 668:
“the plea can never be sustained unless the court
is satisfied that there is some other tribunal, having competent
jurisdiction, in which the case may be
tried more suitably for the interests of all the parties and for the ends of
justice. For earlier statements of the principle, in similar terms, see
Longworth v. Hope (1865) 3
Macph. 1049, 1053 per Lord
President McNeill, and Clements v.
Macaulay (1866) 4 Macph. 583, 592,
per Lord Justice-Clerk Inglis; and for a later
statement, also in similar terms, see Societe
du Gaz de Paris v.
Societe Anonyme de Navigation "Lex
Armateurs Francais
1926 SC (H.L.) 13, 22, per
Lord Summer. I feel bound to say that I doubt whether the Latin tag
'forum non conveniens' is apt to describe
this principle. For the question is not one of convenience, but of the
suitability or appropriateness of the relevant jurisdiction. However the
Latin tag (sometimes expressed as forum non
conveniens and sometimes as forum
conveniens) is so widely used to describe the principle, not only
in
Lord Dunedin, with reference to the expressions "forum non
competens" and "forum non
conveniens" said, at p. 181
“In my view, 'competent is just as bad a translation for
competens as 'convenient is for
'conveniens'. The proper translation for
these Latin words, so far as this plea is concerned, is 'appropriate'.
“...The key to the solution of this problem lies, in my judgment, in the
underlying fundamental principle. We have to consider where the case may be
tried “suitably for the interests of all the parties and for the ends of
justice.” Let me consider the application of that principle in relation to
advantages which the plaintiff may derive from invoking the English
jurisdiction. Typical examples are: damages awarded on a higher scale; a
more complete procedure of discovery; a power to award interest; a more
generous limitation period. Now, as a general rule, I do not think that the
court should be deterred from granting a stay of proceedings, or from
exercising its discretion against granting leave under
R.S.C. Order 11, simply because
the plaintiff will be deprived of such an advantage, provided that the court
is satisfied that substantial justice will be done in the available
appropriate forum."
The respondents have not complained that they would suffer a
great inconvenience if the trial was held in
Lagos High Court and in any case it is as
in this case for the court to exercise its discretionary
power to determine the forum convenience. There
is nothing to show beyond latching on the
abstract issue of technicality that the
respondents would be adversely affected by the irregularity
committed. In this connection much as I may
sympathize with the respondents, I do not
share their point which does not go to the merit
of the case but on mere form.
On the second issue, let me first restate the relevant and appropriate law
and rule that guide this point. Order
3 rule 5 of the High Court of Lagos State Civil Procedure 1994 Rules
provides as follows:
"Subject to the provisions of the Sheriffs and Civil Process Act, a writ of
summons or other originating process issued by the court for service in
Nigeria outside Lagos state shall be endorsed by the registrar of the court
with the following notice.. .'This summon (as the case may be) is to be
served out of
Section 97 of the Sheriffs and Civil Process Act, Vol. 407, Laws of the
Federation of Nigeria
on the other hand states:-
"Every writ of summons for service under this part out of the state in the
The term "shall" in the context would appear to mean or understood to convey
the message that the said writ should be endorsed or in other words have on
the face of it the words that such a writ shall be served outside the
jurisdiction of the court. The argument of the learned counsel for the
appellant is that it is the duty of the registrar of the court to perform
the functions of endorsement and therefore the appellant should not be
punished for the failure or negligence of the registrar. If the prescription
of the law is that a writ should be of certain nature or in certain manner
before it can be valid for service, it is the bounden duty of the registrar
to perform his duty of endorsing the process. The appellant cannot be
punished for the negligence or tardiness of the registrar in the performance
of his duty. The underlying principle behind service out of the jurisdiction
of the court rests a priori on the fact that the court from which
leave is being sought may not have immediate jurisdiction on that person
without that leave.
The learned counsel for the appellant relied on the opinion of
Ogundare, J.S.C, in
Odua
Investment Company Ltd. v. Talabi
(1991) 10
NWLR (Pt.523) 1 at 42 which runs thus;
"If there is a distinction between the validity of a writ and the validity
of the service of the writ and I agree there is, I am at a loss to fathom
how any defect in the service of the writ can make the writ which is valid
to be voidable. I would think that it is the service alone that would be
voidable"
It must be understood that in a writ meant to be served out of the
jurisdiction the endorsement of those words that would enable the court to
consider the granting of leave is inextricably attached to the writ since
such a writ might readily invoke the endorsement which will enable the court
to exercise the discretion.
Still on issue 2, the appellant's counsel argued that by the ruling of the
court the defendants were given 30 days to enter appearance after service
and that the provision or intention of
Section 99 of the Sheriffs and Civil
Process Act Cap. 407 have been met. Although there must be conformity
with the dictates of the statute, it is essential not merely desirable that
"30 days" mentioned in the section is endorsed in the writ. But the court
tends to be flexible in respect of a procedural law as the end of justice is
to do real justice, rules of court may at times be juggled now and then to
meet the ends of the justice as they are mere aids to the court in its quest
for justice. A Reference was made by the appellants to the cases of
Woodward v. Sarsons
(1875) LR
10 CP 733,746, and in Liverpool Borough Bank v. Turner
29 LJ (CH) 827, that sometimes it
is difficult to distinguish from mandatory enactments as to what is
directory and what is obligatory. This is so and in this connection I am
prepared to hold that this is an enactment that is directory. It is the
wisdom of the law that a court should as much as possible have active mind
to expound the horizon of law, and such activism should make the court focus
on the reality of the issues before it and not allow too much technicality
to affect its mind.
Lastly on the 3rd issue the point being argued here is which
rules ought to have guided the
Having regard to what I have said earlier on the 2 issues the question is
now a mere academic exercise. The Sheriffs and Civil Process Act formerly an
ordinance was enacted as far back 1945, further confirmed by
Legal Notice No. 1 1955 No. 47
of 1955 and No. 107 of 1955. It has always been there and its primary
purpose with the statutory instrument made pursuant thereto is for the mode
of service of process which is the duty of the Sheriff. The appellant
regales very much on the elasticity which seems to characterize
Order 5 rule 1 of 1994 Rules in
that where there is a failure to comply, it should be treated as a mere
irregularity. Learned counsel for the appellant cited the case of Steel
The respondents themselves are not arguing that the applicable rule of court
in this case was the moribund 1972 rules. Whichever way one looks at the
whole case, it is 1994 rules of court that apply as the action was
instituted long after 1994 the rules have come into existence.
In my view the appeal shall be allowed and is hereby allowed. It has merit
and I set aside the judgment of the lower court. Each
party to bear its own costs.
Judgment delivered by
Salihu
Modibbo Alfa
Belgore
J.S.C
I read in advance the judgment of my learned brother, Pats-Acholonu,
J.S.C and I agree this appeal has merit. For the
same reasons he set out in the judgment I also allow this appeal with costs
as assessed in the leading judgment.
Judgment delivered by
Sylvester Umaru
Onu
J.S.C.
I am in entire agreement with the judgment of my learned brother, Pats -Acholonu,
J.S.C, just delivered that there is merit in
this appeal which therefore succeeds. I accordingly allow it with no order
as to costs.
Judgment delivered by
Aloysius Iyorgyer Katsina-Alu
J.S.C.
I have had the advantage of reading in draft the judgment of my learned
brother, Pats-Acholonu in this appeal. I agree
with it and, for the reasons which he gives, I, too, would allow the appeal.
I abide by the order for costs.
Judgment delivered by
Umaru
Atu Kalgo
J.S.C.
I have read in advance the judgment of my learned brother, Pats-Acholonu,
J.S.C just delivered and I entirely agree with
his reasoning and conclusions which I adopt as mine in this appeal. I agree
that there is merit in the appeal and I therefore allow it with costs as
assessed in the leading judgment.
Counsel
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