IN THE COURT OF APPEAL OF NIGERIA
On Tuesday, The 15th day of April, 2014
DEROS MARITIME LIMITED ................. Appellant
1. M.V. "MSC APAPA" .............. Respondents
2. THE MASTER OF M.V. "MSC APAPA"
3. MSC MEDITERANNEAN SHIPPING CO. S.A LTD (OWNERS) CHARTERERS OF M.V. "MSC APAPA"
4. MSC AGBENCIES (WEST AFRICA) LIMITED
AYOTUNDE OLOGE ESQ. for Appellant
OLUWAFEMI ATOYEBI SAN with AYO OLORUNFEMI (Esq.) and ADEDOLAPO AROMIRE (Miss) for Respondent
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of Archibong J. of the Federal High Court, Lagos Division in Suit No FHC/CS/237/2001 delivered on the 1st day of July 2010 wherein the Appellant as Plaintiff at the lower court in an action commenced against the Respondents as Defendants claimed
"... the sum of US $273, 832.49 (Two Hundred and Seventy-Three Thousand Eight Hundred and Thirty-Two United States dollars and Forty-Nine cents) as reimbursements paid by the Plaintiff on behalf of the 1st Defendant, the vessel of the 3rd Defendant, with interest at the rate of 21 per cent per annum from the dates of accrual till judgment is liquidated. The Plaintiff also claims the full cost of this suit".
The 3rd and 4th Defendants at the lower Court were served with the writ of summons and statement of claim outside jurisdiction pursuant to the order of Jega J. dated 23/3/01 The writ was however issued before the order was obtained. The 1st Defendant vessel was arrested but the Defendants provided security for bail and the vessel was subsequently released by the court.
The Defendants at the lower court, entered appearance in the suit filed Statement of Defence, Amended Statement of Defence and other processes. The Defendants also participated in the suit before Olomojobi J. before her retirement and in the trial de novo before Archibong J. up till defence stage. At the close of the Plaintiff's case, the matter was adjourned for defence to open. On the adjourned date, the Defendants did not open their defence but instead brought an application dated 27/4/10 seeking the order of the trial court to strike out and/or set aside the issuance of the Writ of Summons and Statement of Claim on the grounds that:
-The Plaintiff did not seek and obtain leave to issue the writ of summons and statement of claim on the Defendants who are ordinarily resident out of jurisdiction.
-The issuance of the writ of summons and statement of claim herein on the Defendants were invalid, null, and void; and
-The jurisdiction of this Honourable (trial) Court has therefore been vitiated.
In opposition to the application, the Plaintiff filed a seven (7) paragraph counter-affidavit with a written address. The trial court delivered its ruling allowing the application and striking out the suit for being incompetent.
Dissatisfied with the decision, the Plaintiff appealed to this Court by a notice of appeal containing a sole ground of appeal out of which a single issue for determination was distilled. The issue reads thus:
Whether or not the Appellant's action is competent for want of the leave of court to issue and serve the writ of summons and the Statement of Claim on the 3rd and 4th Respondents.
The Respondents disagreed with the above issue on the basis that it does not quite arise from the sole ground of appeal. They contended that the issue of failure to obtain leave to serve the processes out of jurisdiction was never raised either before the lower court or in the ground of appeal. The Respondent then formulated the following issue:
"Whether the Appellant sought and/or obtained prior leave of court to issue their writ of summons and statement of claim on the 3rd & 4th Respondents who are admittedly ordinarily resident outside the jurisdiction of the lower court, and if not, was the learned trial Judge entitled to decline jurisdiction and strike the matter out".
Learned counsel for the Appellant in his brief submitted that the action was commenced as an Admiralty Action in Rem whereby the 1st Respondent vessel was arrested until security for bail was given by the 3rd and 4th Respondents. Counsel submitted that the action was never an Action in personam as it was treated by the trial Court in its ruling. He submitted that the Admiralty Jurisdiction Act, 1991 and Admiralty Jurisdiction Procedure Rules, 1993 are specially made for admiralty matters while the Federal High Court (Civil Procedure) Rules, 2000 (then in operation) and the Federal High Court Act are general provisions which could only complement the special provisions and not displace them as opined by the trial Court. Counsel submitted that the trial Court fell into grave error in holding as follows:
"I find that the Plaintiff was bound to issue a writ against the 3rd and 4th Defendants out of jurisdiction in personam. Service of a writ on the maritime asset of the Plaintiff's purported Principal abroad and/or the master of the said asset would not have been a sustainable action in the circumstance. In the clear stipulation of order 6 Rule 12 of the 2000 Rules of this Court, issuance of a writ such as this, to be served on parties out of jurisdiction for unsettled local expenses, purportedly met by a supposed agent has to be claimed in personam against the supposed principals, and upon prior leave obtained to issue such writ"
Counsel submitted that Section 251 (1) (g) of the Constitution of the Federal Republic of Nigeria, 1999; Section 19 of the Admiralty Jurisdiction Act, 1991; and Sections 7 and 8 of the Federal High Court Act, respectively confer exclusive jurisdiction on the Federal High Court in all Admiralty causes and matters; but that the extent of the Admiralty jurisdiction of the Federal High Court is as stipulated in Sections 1 and 2 of the Admiralty Jurisdiction Act, 1991. Counsel submitted that Sections 1 and 2 of Admiralty Jurisdiction Act, 1991 provide for two classes of maritime claims namely proprietary maritime claims and general maritime claims. He submitted that a careful perusal of the Appellant's statement of claim disclosed that its claim qualified as a general maritime claim as defined by Section 2 (3) (k) and (n) of the Admiralty Jurisdiction Act, 1991. Counsel submitted that the mode of exercising Admiralty jurisdiction in the Federal High Court is as regulated by both the Admiralty Jurisdiction Procedure Rules of 1993 and the Federal High Court (Civil Procedure) Rules. However, by virtue of Order 54 Rule 2 (1) of the Federal High Court (Civil Procedure Rules), 2000:
"Where no specific procedure is given in any of the enactment in Appendix 1 to these Rules, the Rules shall apply with necessary modification so as to comply with the subject matter of the enactment in Appendix 1 to these Rules."
Counsel submitted that the Admiralty Jurisdiction Procedure Rules, 1993 which is an enactment listed in Appendix 1, being Rules made to govern specific situations, should prevail in respect of any conflict between those Rules and the Federal High Court (Civil Procedure) Rules, 2000 in matters of practice and procedure on Admiralty causes and matters. But in other cases where there is no conflict between the two Rules, the two Rules are meant to complement each other. He submitted that in the instant case the trial Court ought to have relied more on the Admiralty Jurisdiction Act, 1991 and the Admiralty Jurisdiction Procedure Rules, 1993 rather than on the Federal High Court (Civil Procedure) Rules, 2000 in arriving at its decision.
Counsel further submitted that the Federal High Court exercises its jurisdiction through actions in rem and actions in personam but it is only where an action in rem has been filed that a ship or other property can be arrested either at the time of filing the action or subsequent to filing the Admiralty action in rem; that the distinction between an Admiralty action in rem and an Admiralty action in personam is for the purpose of knowing how to invoke the Admiralty jurisdiction of the Federal High Court. He submitted that all actions aimed at the person requiring him to do or not to do or take or not to take an action or course of conduct are actions in personam whilst all actions in which the subject-matter is itself sought to be affected and in which the claimant is enabled to arrest the ship or any other property and to have it detained until his claim has been adjudicated upon or until security by bail has been given for the amount or for the value of the property proceeded against where that is less than the amount of the claim, are actions in rem. Rhein Mass Und See GMBH v. Rivway Lines Limited (1998) 5 NWLR (Part 549) 265 @ 277; Satyan 1 v. IMB Limited (2002) 5 NWLR (part 760) 397 @ 414.
Consequently, counsel submitted that the Appellant's action which was a claim for disbursements made as ship agent on account of various trips of the 1st Respondent for and on behalf of the 3rd and 4th Respondents and which sought to affect the 1st Respondent itself is enforceable in rem, even though it could also be enforced in personam. Anchor Limited v. The Owners of the Ship, Eleni, 1 NSC 14.
Counsel submitted that although, an action in rem is primarily a proceeding against the ship or res by way of an arrest, yet it is indirectly a process compelling the appearance of the owner of the ship to defend his interest in the property. Rhein Mass Und See GMBH v. Rivway Lines Limited, supra at 281. By community reading of Sections 2 (3) and 5(4) Admiralty Jurisdiction Act, counsel submitted that Admiralty Jurisdiction Act recognises statutory rights of action in rem and actions which in form are in rem but in substance are in personam. Any of the general maritime claims in Section 2 (3) of Admiralty Jurisdiction Act, 1991 can be the basis for the arrest of a ship or a sister ship or other property if the conditions stated in Section 5 (4) thereof are met by the plaintiff.
Section 5 (4) provides:
"In any other claim under section 2 of this Act, where the claim arise in connection with a ship and the person who would be liable on the claim in an action in personam (in this Act referred to as 'the relevant person') was, when the cause of action arose, the owner or charterer of or in possession or in control of the ship, an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought against:
(a) that ship, if at the time when the action is brought, the relevant person is the beneficial owner of that ship as respects all the shares in it or the charterer of the ship under a charter by demise; or..."
Thus, according to learned counsel, where the Defendant enters appearance in an action in rem it proceeds as an action in personam and judgment can be enforced against any of his property within the jurisdiction including his other ships or goods by way of a writ of fifa after final judgment has been obtained. But if a ship is not arrested, or is released after arrest, there is no "res" against which the Plaintiff or any other interested person can proceed and the action is one in personam regardless of the form of the writ. The "Deichland" (1989) vol. 2 Lloyds Rep. 113 at 125. Order 1 Rule 2 of the Admiralty Jurisdiction Procedure Rules, 1993 makes the Rules applicable to all admiralty causes and matters brought in the Court. Also, Order II Rule 3 (3) of the Rules provides that:
"A proceeding commenced as an action in personam shall not be commenced by the same initiating process as the process by which a proceeding is commenced as an action in rem."
Order IV Rule 1(1) of the Rules stipulates in respect of parties to an Admiralty actions as follows:
'The writ in a proceeding commenced as an action in rem shall specify a relevant person in relation to the maritime claim concerned as a defendant and shall be in Form B in the schedule to these Rules."
Counsel submitted that all the provisions enumerated above point to the fact that an Admiralty matter is a field of law on its own when it relates to jurisdiction and procedure. Unlike in an action in personam, the plaintiff in an action in rem is not required to apply for and obtain the leave of the Federal High Court to issue, and leave of the court to serve, the writ outside the jurisdiction of the Court under the provisions of both the Admiralty Jurisdiction Act, 1991 and Admiralty Jurisdiction Procedure Rules, 1993. Thus, it is wrong for the trial Court to rely on the general provisions of the Federal High Court (Civil Procedure) Rules, 2000 to require, from the Appellant, the seeking and obtaining of the leave of the Court before issuing the writ of summons and the statement of claim on the Respondents. This is more so when the action was commenced as an action in rem as against the postulation of the Court that same could not be in any other form other than an action in personam. Counsel submitted that it is the misapplication and overlooking of the relevant laws that led to the wrong conclusion. He submitted that the error of the learned trial judge led to a miscarriage of justice as the case of the Appellant, which had been in court for over nine years, was wrongly struck out. He urged the court to resolve the lone issue in favour of the appellant, allow the appeal, set aside the decision and remit the case back for, trial before another Judge of the Federal High Court.
Learned counsel for the Respondent in his brief started with a criticism of the approach the Appellant adopted in their Brief of Argument. He submitted that their submissions dealt with the finding of the learned trial court that their action was one 'in personam' which they contended was wrong. Counsel submitted that the Appellant cannot attack this finding of fact in their Brief because they did not challenge same in their ground of appeal. He urged the court to hold that the arguments do not arise from the sole ground of appeal and to discountenance them. C.E.M.A SHIPPING INC. v. MT "CINDY GAIA" & 4 ORS (2007) 4 NWLR (pt. 1024) 222 C.A; PAYE v. GAJI (1996) 5 NWLR (PT. 450) 589 @ 598 F; ANERO v. EZE (1995) 1 NWLR (PT. 370) 129 S.C
Learned counsel contended that in any event, the Appellant conceded that with the naming, service and appearance of the owners of the vessel, the action was converted to one 'in personam' so that even if (which is denied) their argument has any relevance, it would have been overtaken by the fact that the action is now one 'in personam'. He urged the court to strike out Appellant's arguments on the point.
Counsel then proceeded to argue the issue they formulated:
"Whether the Appellant sought and/or obtained prior leave of court to issue their Writ of Summons and Statement of Claim on the 3rd & 4th Respondents who admittedly are ordinarily resident outside the jurisdiction of the lower court, and if not, was the learned trial Judge entitled to decline jurisdiction and strike the matter out".
Counsel submitted that the fact is that prior leave of the Court below was required and although it was sought, it was not obtained before the issuance of the writ, and if at all obtained, it was a day after the writ had been issued. The learned trial Judge found as a fact in his ruling at page 450 of the records as follows:
"It is clear from the record that the Writ for this action was issued before leave of court was obtained."
Counsel submitted that the Appellant conceded the issue as it did not challenge this all-important finding of fact in the ground of appeal. Counsel submitted that in a long line of cases decided by this Court as well as the Supreme Court, the principle of law is now well settled that, where a Plaintiff is required to obtain prior leave of court to issue his Writ of Summons and fails to do so, the action has not been brought before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction by the court. Consequently, the Court's jurisdiction would be vitiated thereby. This proposition of the law, counsel submitted, is also further supported by the mandatory provisions of Sections 97 and 99 sheriff & Civil Process Act, Cap 407 LFN 2004. Counsel cited numerous cases as follows:
NEPA v. ONAH (1997) 7 NWLR (PT. 484) 680; NPA v. EYAMBA (2005) 12 NWLR (PT. 939) 409; ODU'A INVESTMENT LTD v. TALABI (supra) @ 21 PARAS B-C, NNPC v. ELUMAH (1997) 3 NWLR (PT; 492) 195 @ 204 PARA C; NWABUEZE v. OBI OKOYE (1998) 4 NWLR (PT.91) 644; CARRIBEAN TRADING & FIDELITY CORPORATION v. NNPC (1992) 7 NWLR (PT. 252) 161 @ 180 PARA C; KIDA v. OGUNMOLA (2006) 13 NWLR (PT.997) 377 @ 394 PARAS E-F, OWNERS OF THE MV "AMBELLA" v. NIGERIA, AGRICULTURAL INSURANCE CORPORATION (supra) @ PG 208 PARAS C - D; AGIP (NIG) LTD vs. AGIP PETROL INT'L & ORS in RE: CHIEF C. EZENDO & ORS (2010) 5 NWLR (pt.1187) 348 @ 389, PARAS, G-H; 416, PARAS. G-H; 423-424 PARAS, F-B.
Counsel finally submitted that the Appellant failed to obtain prior leave of court to issue their writ herein and the action was therefore not properly constituted which stripped the trial court of its jurisdiction to entertain the matter. Counsel submitted that it is of no moment that the Respondents have participated in the trial because, jurisdiction being a threshold issue, can be raised at any stage of the proceedings; even at the appellate Court for the first time. Counsel urged the court to resolve the singular issue for determination in this appeal in favour of the Respondents, to uphold the ruling of the learned trial court and dismiss the appeal with substantial costs.
This appeal is based on a very narrow compass - whether the trial Court was right is striking out the suit of the Appellant for failure to first obtain the leave of the court to issue and serve the Writ of Summons and the Statement of Claim on the 3rd and 4th Respondents. The Respondent criticized the issue formulated by the Appellant on the basis that it does not quite arise from the sole ground of appeal. It is necessary therefore to set out the ground and its particulars.
"The learned trial Judge erred in law when he struck out the Plaintiff/Appellant's suit after 10 years on the grounds that (sic) writ of Summons and the Statement of Claim (sic) was issued on the 3rd and 4th Defendants/Respondents outside the jurisdiction of this Honourable Court without obtaining the requisite leave of the court first had and obtained.
1. The Plaintiff/Appellant commenced this action as an Admiralty Action in rem on 22nd March, 2001.
2. The 3rd and 4th Defendants/Respondents were served with the Writ of Summons and Statement of Claim outside jurisdiction pursuant to the order of the Honourable Justice A.A. Jega dated 23rd March, 2001.
3. The Defendants/Respondents entered appearance to the suit, filed Statement of defence, Amended Statement of Defence and other processes in this suit.
4. The Defendants/Respondents also actively participated in this suit before Honourable Justice Olomojobi, before her retirement and in the trial de novo before the Honourable Justice Archibong.
5. In the circumstance of the matter, the decision has occasioned great hardship and injustice on the Plaintiff/Appellant and the trial Judge ought not to have struck out the Plaintiff/Appellant's suit.
The issue formulated by the appellant reads:
Whether or not the Appellant's action is competent for want of the leave of Court to issue and serve the Writ of Summons and the Statement of Claim on the 3rd and 4th Respondents.
As I said earlier, the crux of this appeal is whether the appellant obtained the prior leave of the Court before issuing the writ of summons on the 3rd and 4th Respondents. Both the issue formulated by the Appellant and that formulated by the Respondent catch the essence of the ground of appeal. The objection of the Respondent to the issue formulated by the Appellant is of no moment.
Learned counsel for the Respondent also contended that the Appellant cannot attack the finding by the trial Judge that the appellant's suit was one 'in personam' because they did not challenge same in their ground of appeal. It appears to me that learned counsel for the Appellant is making the argument in order to buttress his point that it was that stand that led to the error of the trial judge in striking out the case. I do not think it was necessary that it should have been made a ground of appeal. The contention of the appellant is that it is wrong for the trial Court to rely on the general provisions of the Federal High Court (Civil Procedure) Rules, 2000 to require, from the Appellant, the seeking and obtaining of the leave of the Court before issuing the writ of summons and the statement of claim on the 3rd and 4th Respondents when the action was commenced as an action in rem governed by the provisions of the Admiralty Jurisdiction Act, 1991 and Admiralty Jurisdiction Procedure Rules, 1993. It is not disputed by the parties that for an action in rem in admiralty matters, there is no requirement to obtain prior leave to issue writ of summons for service outside jurisdiction as the defendant vessel is deemed by operation of law to be resident within jurisdiction. But where it is an action in personam and the defendants reside outside jurisdiction, prior leave must be obtained before the writ is issued. Order 2 Rule 3(3) of the Admiralty Jurisdiction Procedure Rules provides that action in personam shall not be commenced by the same initiating process by which a proceeding is commenced in an action in rem. When then is an action said to be in rem and when is it said to be in personam? The case of Rhein Mass Und See GMBH v. Rivway Lines Limited (Supra) is instructive. At page 277 Ogundare JSC delivering the judgment of the Court observed:
"....It is conceded before us by Mr. Agbakoba that in the enforcement of this cause of action, plaintiff could proceed either against the vessels concerned or against their owner(s) or both. Where plaintiff proceeds against the vessel, the action is one in rem and where he proceeds against the owner, the action is one in personam. Defining the expression "action in personam, Coker J.S.C. delivering the judgment of this Court in Nigerian Ports Authority v. Panalpina (1973) 5 SC 77 at Pp 96-97; (1923) ANLR 408, 422 observed:
"Etymologically, an action in personam is an action brought against a person, an action to compel to do or not to do a particular thing or take or not to take a particular course of action or inaction. Actions for damages in tort or for breaches of contract are clearly directed against the person as opposed to actions which are brought for the purpose of declaring or challenging a status, like proceedings under the Matrimonial Laws of the country or legitimacy or an admiralty action directed against a ship or the res (and so known as an action in rem) or the like. Generally therefore, all actions which are aimed at the person requiring to do or not to do or to take or not to take an action or course of conduct must be and are actions in personam."
It is clear then from the above observation of his Lordship that this suit was both an action in rem and an action in personam is so far as the Appellant sued both the owners of the vessel and the vessel. The issue in Rhein Mass Und See GMBH v. Rivway Lines Limited (Supra) was whether the Respondent's action was statute barred. Section 7(1) of the Limitation Act 1966 prohibits the bringing of an action after the expiration of the statutory period of six years. But section 7(3) creates exemption from the provisions of section 7(1) to the effect that the provisions of section 7 (1) shall not apply to any cause of action within the Admiralty jurisdiction which is enforceable in rem. Obviously whether an action is enforceable in rem or in personam, once it is enforceable in rem, it can enjoy the exemption. The Supreme Court held that the fact that the cause of action can be enforced by an action in personam would not alter the nature of the cause of action being also enforceable in rem to enable it enjoy the exemption. The judgment cannot be interpreted to mean that where a suit is initiated against the vessel and its owners making it an action in rem and in personam the appropriate procedure in bringing the parties before the Court should not be followed. It need to be followed notwithstanding that the suit is captioned "ADMIRALTY ACTION IN REM" In the same case Ogwuegbu J.S.C. at page 281 B-F observed:
"Thus it can be seen that the distinction between action in rem and action in personam is procedural only. Except in certain claims, the same cause of action may give rise to both actions depending on which action the plaintiff initiates having regard to the procedural difficulties involved,"
Where the appellant on his own chooses to sue both the vessel and its owners, he is bound to comply with the procedural rules for bringing the defendants resident outside the jurisdiction of the Court before the court. Learned counsel in his brief dealt with the matter fully and appropriately. Hear him:
"Firstly, the Appellant's action, though one 'in rem' against the 1st Respondent vessel, also named three other Defendants. Defendants Nos. 3 & 4 who are ordinarily resident outside the jurisdiction of the trial court, which in law also makes it an action 'in personam'. This much was alluded to on the face of the Writ of Summons and in the service address provided in the Statement of Claim at pages 1 & 9 respectively of the records. In those pages, the case of the Appellant was that the said defendants are resident in Switzerland and the United Kingdom. In the circumstances, it is submitted that by Order 6, Rule 12 of the Federal High Court (Civil Procedure) Rules, 2000, (then applicable), the Appellant was duty bound under the law to first seek and obtain leave of court before issuing the Writ as against the defendants/Respondents herein. The Order provides as follows:
"12(1). - No writ which, or notice of which, is to be served out of jurisdiction shall be issued without leave of the court"
In other words, the Appellant had to apply for and obtain leave of court before issuing its Writ and he can neither do it simultaneously nor afterwards. Leave must first be sought and obtained before issue........ the Appellant filed its Writ of Summons and ex parte application for leave to issue and serve on 02 March 2001 at 1.50p.m as can be gleaned from pages 1, 84 & 85 of the records. However, contrary to what the learned Counsel seems to be suggesting, the application for leave to issue was not argued until the next day, i.e., 03 March 2001, when it was granted. I submit that the Writ was effectively issued on 02 March 2001, a day before leave was granted to issue it. In my most respectful submission, this was fatal to the validity of the Writ as, as at 02 March when it was issued, there was no Writ in existence over which the court was competent to exercise any jurisdiction to grant leave and/or make any other order. MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341,"
The law then as laid down in a very long list of authorities, many of which have been cited by the Respondent as set out above is that failure to obtain the prior leave of the court before issuing the writ is fatal to the Appellant's case. I shall here set out the various relevant observations of the courts as presented by learned counsel for the Respondent in his brief. In the case of NEPA v. ONAH (1992) 1 NWLR (PT.484) 680 Uwais, JSC, (as he then was) observed while interpreting Order 6 Rule16 of the then Bendel State High Court Rules, which is in pari materia with the rules under consideration
"It is settled by the decision of this court in that where the Rules of the High Court provide that before a Writ of Summons to be served outside jurisdiction is issued, leave of the High Court must be obtained and if no such leave is obtained prior to the taking out of the Writ then the Writ is vitiated and would be declared null and void."
In the case of KIDA v. OGUNMOLA (2006) 13 NWLR (PT.997) 377 @ 394 E-F the Supreme Court held inter-alia that:
"...the validity of the originating processes in a proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity."
In NNPC v. ELUMAH (1997) 3 NWLR (PT.492) 195 @ 204 PARA C, AKPABIO, J.C.A (quoting NDOMA-EGBA, J.C.A in a related case) stated inter alia that:
"Failure of a Plaintiff to obtain the leave of Court to issue and serve a Writ of Summons on a Defendant outside the jurisdiction of the Court renders the issuance and service of such Writ void notwithstanding the participation of the Defendant in the proceedings..."
In the same case AKINTAN, J.C.A., (as he then was) at P 204 G-H went further to state that:
"... I entirely agree with his conclusion that the respondents needed to obtain leave of the lower court before the writ of summons in the instant case could be issued. It was the requirement of the law in force at the time the writ was issued that leave of the lower court must be obtained before the writ could be issued in cases where the defendant was to be served outside the court's jurisdiction...As the provisions of the said laws were not complied with, such omission would vitiate the entire action. The result is that the writ was incompetent, null and void. See: MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341.
In CARRIBEAN TRADING & FIDELITY CORPORATION v. NNPC (1992) 7 NWLR (PT. 252) 1617 @ 180 C, the Court of Appeal also stated that:
"...failure to obtain leave is prejudicial to the party in default. In NWABUEZE & ANOR v. JUSTICE OKOYE (1988) 4 NWLR (Pt.91) 664, the Supreme Court held that failure to obtain leave before issuing writ of summons out of jurisdiction is not mere irregularity but a fundamental defect which goes to the question of the competence and jurisdiction of the court."
I am in total agreement with learned counsel for the Respondent that the Appellant's failure or neglect to seek and obtain prior leave to issue the Writ on the two Respondents, who are resident outside the jurisdiction of the Federal High Court, vitiated the whole proceedings. See the judgment of this court in Appeal No CA/L/868/2009 MV "Western Star" & Ors v. B.L. Lizard Shipping Company Ltd delivered on 7/8/13. The Appellant was in grave error to have issued the writ before obtaining the leave of the Court. In the case of MITI V. NEW NIG. BANK PLC (1997) 3 NWLR (Pt 496) 737 @ 743, this court per Akpabio JCA observed:
"The question for determination therefore is whether a Writ of Summons which was signed by the registrar a day before leave was actually granted by the Judge was valid Writ or not. I have looked at all the decided cases on the point and find that obtaining of leave is a conditional precedent to issue of Writ outside jurisdiction. If no such leave was obtained, the issuance and service of the said Writ of Summons will be a nullity, invalid and void".
See the case of Chidobi v. Ujieze (1994) 2 NWLR (Pt 328) Page 554 @ 566 where it was held by this court that:
The proper issue and service of a Writ of Summons on a defendant is a condition precedent to any effective adjudication between the parties to a case. (Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664 referred to). (P. 566 paras, E-F)."
We also held at the same page 566 that:-
"A Writ of Summons cannot be deemed as having been filed and served, because it is a document which by definition commences the proceedings. The documents which a court an 'deem' are those which parties exchange between themselves during the course of proceedings, such as statement of a claim or defence and briefs of argument, and not those which require the signature of the registrar for their validity, (P, 566, paras. F-G)".
As rightly pointed out by learned counsel for the Respondent the procedure for any party seeking leave to issue a process against a foreign Defendant has been clearly settled by the authorities and it is, that the plaintiff would prepare an unsigned writ and attach it to an application for leave to issue and would only proceed to have the writ signed and issued after leave has been granted. In TOUTON S.A. v. G.C.D.N.Z. S.P.A (2011) 4 NWLR (PT.1235) 1 @ 22 D - G cited by learned counsel for the Respondent, the court observed:
"By Order 6 rule 12 (1) of the Federal High Court (Civil Procedure) Rules 2000
"No writ which, or notice of which, is to be served out of the jurisdiction shall be issue without the leave of court."
Generally, a plaintiff desirous of issuing a writ for service outside the jurisdiction of the court, filed an ex-parte application seeking for leave to issue the said writ and attaches an unsigned copy of the writ to the affidavit in support of the application. Thereafter the plaintiff can issue same subsequent to obtaining the required leave to do so. Anything short of this renders the writ incompetent ab initio. For the avoidance of doubt, any writ of summons meant for service outside the jurisdiction of the court which is issued before or without leave, is null and void. See Adegoke Motors Ltd. v. Adesanya (1993) 3 NWLR (pt 109) 250."
See also AGIP (NIG.) LTD v. AGIP PETROLI INT'L (2010) 5 NWLR (Pt 1187) 349 @ 416 G - H. 423-424 F-B
Learned counsel for the Appellant had further argued that since the action had been pending for ten (10) years and the Respondents have participated in the trial, they could no longer raise the issue at this stage. It is settled law that the issue of jurisdiction can be raised at any stage of the proceedings, even on appeal for the first time. See OWNERS OF THE MV "ARABELLA" v. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (Pt. 1097) 182 where the Respondent (Defendant in the action) raised the issue of failure to seek and obtain leave of Court to issue and serve the Originating process for the first time at the Supreme Court and the Court held as follows:
"Of course, and this is also settled, where an act is void, then it is in law a nullity ... Referring to SKENCONSULT NIG. LTD. v. UKEY (1981) 1 S.C.6, it was held that if the defect or non-compliance complained of, went to the competence or jurisdiction of the trial court, then the proceeding therein, would be null and void. That it is no moment that the Defendant, had taken some steps in the proceedings. That non-compliance with the Act was not a mere irregularity, but a fundamental defect which went to the root of the jurisdiction and competence of the court."
I am of the view that learned counsel for the Appellant was well aware of all these trite legal points and authorities ably marshalled out by learned counsel for the Respondent. His contention is that that since the action is one 'in rem', they should not be required to seek or obtain leave of court to issue the writ. As again rightly pointed out by Respondent's counsel, this contention is an afterthought to cover up the unfortunate slip of counsel. If the appellant was so certain that they were not required to seek leave to issue the writ because the action is one 'in rem', why did they file the application for leave to issue simultaneously with the issuance of the writ and an ex parte application for the arrest of the vessel. I agree with counsel that the appellant by taking that step knew that they were required to obtain leave of court to issue the writ, notwithstanding that the writ was captioned "Admiralty Action in Rem." It was clearly a costly slip that the writ was signed up front by the Registrar. By suing the owners of the vessel in addition to the vessel, the suit was made an action in personam as well. He could have sued only the vessel as done in MV "MUSTAFA" v. AFRO ASIAN IMPEX LTD (2002) 14 NWLR (PT. 787) 395 @ 411 B-E. As the additional parties were resident outside jurisdiction, he was bound to comply with the Rules requiring leave of Court to issue the Writ.
Learned counsel for the Respondent is again right in his final conclusion that although the Appellant applied for leave to issue the writ, they had gone ahead to issue the writ a day before leave was granted, and as leave to issue cannot be backdated, the writ was null and void and of no effect. Consequently, the court's jurisdiction and entire proceeding was vitiated and rightly struck out by the learned trial judge. It was of no consequence that the Respondents had participated in the trial as the issue of jurisdiction is a threshold one which can be raised at any stage of the proceedings, even at the Supreme Court for the first time. I hold that this appeal is unmeritorious. It is hereby dismissed. I affirm the ruling of Archibong J of the Federal High Court, Lagos Division in Suit No FHC/CS/237/2001 delivered on 1/7/10, I make no order as to costs. I commend counsel for the industry exhibited in their well researched and written briefs.
AMINA A. AUGIE, J.C.A.:
I have read in draft the lead Judgment just delivered by my learned brother, Iyizoba, JCA, and I agree with his reasoning and conclusion. He addressed all the issues extensively and I really have nothing useful to add except to say that what the Appellant would appear to forget or overlook is that jurisdiction is the lifeline of any action, so, any Court without jurisdiction automatically lacks the competence to try the case in the first place - see Utih V. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 SC, where Bello, JSC (as he then was) stated as follows- -
"Jurisdiction is blood that gives life to the survival of an action in a Court of law, and without jurisdiction, the action will be like an animal drained of its blood, It will cease to have life and any attempt to resuscitate it without infusing blood into it would be abortive exercise".
It is because jurisdiction is so vital to the life of a case that the law insists that the issue can be raised at anytime and anywhere, even at the appeal stage - see Ijebu-Ode L.G. V. Adedeji (1991) 1 NWLR (Pt. 166) 136 SC and Olutola V. Unilorin (2004) 18 NWLR (Pt.905) 416 SC, where Ejiwunmi, JSC, observed that-
"The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the appeal Courts. This issue can he raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction in the Court, it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the Court's attention to it".
In this case, the Appellant failed to obtain leave to serve the said processes on the 3rd and 4th Respondent, who are ordinarily resident outside the jurisdiction of the lower Court, and it was right to strike out its suit for being incompetent. In the circumstances, I also dismiss the appeal and I abide by the consequential orders in the lead Judgment, including the order as to no costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.:
My learned brother, Chinwe Eugenia Iyizoba, J.C.A., availed me the privilege of reading in advance the comprehensive lead judgment prepared by his Lordship with which I agree and adopt as my judgment in the appeal with the little addition, by way of emphasis, that whenever leave of court is required by an enactment for the taking of any step in litigation, the failure to obtain the requisite leave before launching the litigation would vitiate the entire action. See by analogy the case of Onigbenden and Anor. V. Balogun (1975) 1 ALL NLR 233.
In the result, I too find the appeal unmeritorious and hereby dismiss it and abide by the consequential order(s) contained in the said lucid lead judgment.