➥ CASE SUMMARY OF:
Caribbean Trading & Fidelity v. Nigerian National Petroleum Corporation (2002) – SC.74/1993
by Branham Chima (SAL).
Supreme Court – SC.74/1993
➥ JUDGEMENT DELIVERED ON:
Friday, the 7th Day of June, 2002
➥ THIS CASE IS AUTHORITY FOR:
⦿ REASON FOR LEAVE TO BE OBTAINED BEFORE ISSUE OF ORIGINATING SUMMONS TO BE SERVED OUTSIDE JURISDICTION
In my opinion it makes for a better understanding and application of our rules to appreciate the raisons d’etre which underlie their prescription. In this regard, the raison d’etre of the rule that leave should be obtained before the issue of an originating summons to be served out of the jurisdiction of the court is well put in Halsbury’s Laws of England (Vol. 37) (4th Edition) at para 171 as follows: ‘Service out of the jurisdiction is recognised as the exercise by the English court of judicial power over a foreigner who owes no allegiance to the United Kingdom or over a person who is resident or domiciled out of the jurisdiction, but is nevertheless called upon to contest claims made against him in England and Wales. However, it is generally accepted that, in accordance with the comity of nations, each nation is entitled, in circumstances permitted by its own laws, to exercise judicial power over persons in other countries; but, of course, the exercise of such sovereign power by the issue and service of judicial process over persons in another country is prima facie an infringement of the sovereignty of the other country. — O. Ayoola, JSC.
⦿ OUR LEGAL SYSTEM DRAWS STRENGTH FROM BEING PART OF THE COMMON LAW SYSTEM
Nigeria does not cease to be Nigeria because it has chosen a particular mode for ensuring the procedural completeness of its legal system, just as Nigerian does not cease to be Nigerian by choosing the English language, in which, incidentally, the learned Justice had flawlessly expressed himself, as the language of official communication. Our legal system draws much of its strength from being part of a common law system having its roots in the past while remaining organic. Our efforts should be directed to how best to build on the legacy of that great system of laws rather than to a denigration of the past we have built on and are building on. — O. Ayoola, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
O. Ayoola, J.S.C.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
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 favour 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 High Court of Lagos State (Civil Procedure) Rules 1994. However, reference in this judgment is to the 1972 Rules.
The matter came before the High Court first on 16th July, 1990. On 20th September, 1990 the respondent brought an application for accelerated hearing of the application. An affidavit of service placed before the High Court indicated that service had been effected on all parties on 20th September, 1990. The application for accelerated hearing was adjourned to be heard by the trial court on 27th September, 1990. On that day one Mr. Olanihun claiming to be appearing for Mr. Akinlolu informed the court that the arbitration proceedings in which Mr. Akinlolu had been counsel for the appellant having been concluded, Mr. Akinlolu was no longer agent for the respondent. The trial Judge (Omotosho, J., as she then was) took the view, notwithstanding opposition by the respondent’s counsel, that although Mr. Akinlolu was duly served, the court could not force him to represent the appellant. She thereon decided that the appellant be served out of the jurisdiction. She explained: Right up to that stage, there was nothing to show on the face of the originating summons and the Motion for accelerated hearing that service on the Respondent will be service outside the jurisdiction of this Court. It was after hearing all parties present on the issue of service duly acknowledged for and on behalf of Akinlolu for the respondents, that the Court decided that it would serve the interest of justice that the Respondents, themselves be served and Akinlolu released from his obligations as agent since he claimed not to be an agent of the Respondents. The application for accelerated hearing was then adjourned to 16th October, 1990. However, on 12th October, 1990, Mr. Olanihun filed a notice of preliminary objection: That the originating summons was issued without leave of the court as stipulated by Order 2 rule 4 and in compliance with the Sheriffs and Civil Process Act and should be set aside.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the originating summons was a nullity by reason of its being issued without leave?
RULING: IN RESPONDENT’S FAVOUR.
A. THE ORIGINATING SUMMONS IS VALID
[‘In my judgment, to hold that notwithstanding that leave to serve an originating summons or process out of the jurisdiction has been granted before its service but after its issue, the service or issue of the summons becomes a nullity is to apply the rule mechanically without regard to its purpose. I venture to think that the test that should immediately occur to a judge called upon to grant leave to serve an originating process out of the jurisdiction after it has been issued but before service, or who is faced with a situation in which a grant of such leave subsequent to the issue of the process, but before service thereof, seemed necessary to meet the purpose of the rule is to ask: Had the facts now placed before me been placed before me before the process was issued, would I have granted leave to issue it? If the answer is ‘Yes’, refusing to grant leave at that stage will be mere indulgence in technicality at the expense of substantial justice, particularly in this case where to set aside the originating summons would probably have shut out the respondent from pursuing its remedy by reason of limitation of time within which to apply to set aside the award. It is to be noted that where leave is sought before issue of a process the application is made to the court ex parte and the defendant may have the order for service set aside. Upon such application the court may be invited to reconsider its exercise of discretion. In this case, there is no doubt that the trial Judge exercised a discretion that she would have exercised had an application for leave to serve the originating summons out of the jurisdiction been made before the summons was issued. Other than that she exercised the discretion after the summons had been issued, nothing has been urged to indicate that the discretion had not been properly exercised.’
‘On the facts of this case I am of the same view as the trial Judge and the court below that the originating summons which bore on its face an address for service within Nigeria was, prima facie, properly issued because on the face of it, it was not a summons to be served out of the jurisdiction. Upon the facts that subsequently emerged, that it was one to be served out of the jurisdiction, the trial Judge exercised her discretion on the materials before her by making an order that it is to be so served. That, in my opinion, was a fitting way to do substantial justice in the circumstances.’
‘Nwabueze & Anor v. Okoye (1988) 10 – 11 S.C case (supra) on which counsel for the appellant set so much store for a contrary view is distinguishable for several reasons among which is that in Nwabueze’s case the writ of summons issued without leave was served whereas in this case the originating summons had not been served before the trial Judge ordered that it be served out of the jurisdiction.’]
‘For my part, while this appeal will be dismissed, I do not endorse the view of the court below in the passage last quoted from Tobi, JCA’91E2’9180’99s judgment which will sentence our legal system to unnecessary parochialism. 4 Be that as it may, in my judgment this appeal lacks merit. In the result, I dismiss the appeal with N10,000.00 costs to the respondent.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ JUDGES SPEAK TO GIVE JUDGEMENT
Lord Denning in his book, ‘the Family Story’ at page 216 wrote about judges and said: ‘Judges do not speak, as do actors, to please. They do not speak as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give judgment. And in their judgments you will find passages which are worthy to rank with the greatest literature which England holds.’
➥ REFERENCED (OTHERS)