AJBPCL JULY – DECEMBER, 2010 - WRIT FOR SERVICE OUT OF JURISDICTION IN THE FEDERAL HIGH COURT- OWNERS OF THE MV “ARABELLA” V. N.A.I.C. REVISITED.
WRIT FOR SERVICE OUT OF JURISDICTION IN THE FEDERAL HIGH COURT- OWNERS OF THE MV “ARABELLA” V. N.A.I.C. REVISITED.
Ikenna Okoli & K.C. Okoli*
The issuance and service of a writ of summons for service outside jurisdiction have raised problematic legal questions with the Supreme Court of Nigeria handing down apparently contradictory decisions. The issue was further clouded by the Supreme Court’s 16th May, 2008 decision in the Owners of the MV “Arabella” v Nigeria Agricultural Insurance Corporation (“MV Arabella”). Given the court’s current pronouncement on the subject, it is difficult for any lawyer to confidently advise a client on the correct legal position. In this article, we shall re-examine this thorny issue by revisiting the Supreme Court’s decision in the MV Arabella. We will not deal with the court’s view of the true nature of a statute of limitations – whether it is a non-waivable jurisdictional issue or simply a defence to a properly constituted action over which a court has jurisdiction. That issue will be for another occasion. We shall concern ourselves only with that portion of the Supreme Court’s decision which held that both the issuance and service of the writ of summons are void. Finally, we will suggest what the correct legal position on the subject is.
Summary of the Case
On 4th January, 1996, the appellant, as plaintiff in the trial court, commenced an action against the respondent and two other defendants in the Federal High Court, Lagos Division. The action was commenced under the ‘undefended list’ and the plaintiff claimed jointly and severally the sum of USD 34, 578. 80 as the amount owed it by the defendants.
Service of the writ was effected on the respondent in Abuja without the leave of the trial court. Though the two other defendants paid the sum of money allegedly owed by them, the respondent, who was the 2nd defendant, filed a preliminary objection, contending that the writ of summons was improperly issued and served and that the action was statute-barred. After hearing arguments from counsel to the parties, the trial court in a considered ruling held that the appellant’s cause of action was not statute-barred. However, it upheld the objection that the writ of summons was not properly issued or served. Consequently, it set aside the writ and its service and dismissed the action.
The appellant was dissatisfied with the dismissal and appealed to the Court of Appeal. The respondent was also dissatisfied with that portion of the decision which held that the suit was not statute-barred, and cross-appealed to the Court of Appeal. The Court of Appeal affirmed the decision of the trial court which held that the issuance and service of the writ of summons was void. However, the Court of Appeal set aside the order of dismissal and substituted in its place, an order striking out the suit. The court further held that the cross-appeal was academic and struck it out.
Both parties were dissatisfied with the decision of the Court of Appeal and filed an appeal and a cross-appeal, respectively, to the Supreme Court. In determining the appeal, the Supreme Court considered Section 26 (1) of the Nigerian Agricultural Insurance Act and Sections 96 and 97 of the Sheriffs and Civil Process Act. The Supreme Court unanimously dismissed the appeal and allowed the cross-appeal.
The Issue before the Supreme Court
The issue before the Supreme Court was whether the Court of Appeal was correct in its decision to set aside both the issuance and service of the writ of summons taken out in the Federal High Court Lagos, on the ground that leave was required to issue and serve same on the respondent in Abuja.
In summary, the appellant argued that there is only one Federal High Court in Nigeria and its jurisdiction extends throughout Nigeria, including Abuja. Therefore, the Federal High Court sitting in Lagos State has jurisdiction over a defendant resident in Abuja. The case of Abiola v FRN was cited in support this contention. The appellant further argued that the provision of Order 10, Rule 14 of the Federal High Court (Civil Procedure) Rules, 1976 requiring leave to issue and serve a writ out of jurisdiction does not apply in this particular case, especially when the service of the writ in question was effected at Abuja within the territorial jurisdiction of the Federal High Court. Under those circumstances, both the issuance and service of the writ of summons on the respondent were proper in law and ought not to have been set aside. As would be expected, the respondent disagreed with the appellant’s contention. The respondent argued that the appellant’s contention that the Federal High Court is one court is wrong and that Sections 96 and 99 of the Sheriffs and Civil Process Act are inapplicable.
In delivering the lead judgment of the Court, Ogbuagu JSC agreed with the respondent that the appellant, having conceded that it never complied with the provisions of the Sheriffs and Civil Process Act regarding the issuance and service of a writ of summons outside Lagos State, which the Court considered mandatory, the appellant cannot avoid or escape the consequences of such non-compliance merely by contending that the law does not apply. The learned Justice went on to opine that rules of court are not mere rules, but they partake of the nature of subsidiary legislation by virtue of Section 18 (1) of the Interpretation Act and, therefore, they have the force of law. He reasoned that it is why rules of court must be obeyed. When there is non-compliance with the rules of court, the court should not remain passive and helpless, but must impose a sanction. Otherwise, the purpose of enacting the rules will be defeated, he concluded.
The Supreme Court further held that neither Section 19 of the Federal High Court Act, nor any other Act, expressly or otherwise, excluded the operation of the Sheriffs and Civil Process Act and Order 10, Rule 14 of the Federal High Court (Civil Procedure) Rules, 1976. The provisions of the Sheriffs and Civil Process Act guide the service of the processes of the Federal High Court as a court established by the National Assembly. The court also held that even the issuance of the writ of summons, which was not endorsed for service on the defendants outside jurisdiction, was rightly declared void by the trial court because of the mandatory nature of Section 97 of the Sheriffs and Civil Process Act.
The court relied on its earlier decision in Nwabueze v Obi-Okoye to hold that where a defendant is outside jurisdiction, no writ of service out of jurisdiction can be issued except by leave of the court. It also held that both the issuance of a writ of summons and service of same on the defendant, are conditions precedent for the exercise of a court’s jurisdiction over the defendant. The court concluded by holding that the Court of Appeal was correct in its decision to set aside the issuance and service of the writ of summons.
The Supreme Court effectively held that the respondent in MV Arabella who was in Abuja was outside the jurisdiction of the Federal High Court sitting in Lagos. Therefore, the writ of summons could not have been properly issued from the court in Lagos for service in Abuja without the prior leave of the Federal High Court. Moreover, the said writ of summons must be endorsed for service on the defendant out of jurisdiction, in compliance with the mandatory provisions of the Sheriffs and Civil Process Act.
As will appear shortly, the Supreme Court, with respect, missed the point critical to a proper analysis and understanding of the case. It is perplexing that the court adverted to the appellant’s argument and reference to Section 19 (1) of the Federal High Court Act yet discountenanced same and held that the appellant needed leave to serve the respondent who was outside Lagos State.
We begin our analysis by examining the jurisdiction of the Federal High Court. Section 19 (1) states, inter alia, that the Federal High Court shall have and exercise jurisdiction throughout Nigeria. That section of the Federal High Court Act is clear and unambiguous. There is one Federal High Court which exercises jurisdiction throughout the Federal Republic of Nigeria through different judicial divisions. How then can it be said that a defendant residing in Abuja but sued in the Lagos division of the Federal High Court was resident outside jurisdiction? It should be noted that the reference and reliance upon Order 10 Rule 14 of the Federal High Court (Civil Procedure) Rules is misplaced as it does not support the court’s conclusion. Order 10 Rule 14 provides as follows:
Any order giving leave to effect service out of the jurisdiction shall prescribe the mode of service, and shall limit a time after such service within which such defendant is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served, and the Court may receive an affidavit or statutory declaration of such service having been effected as prima facie evidence thereof.
It is clear from Rule 14 that it deals with the mechanics of service where leave for service
out of jurisdiction is required; it does not prescribe or require leave for issuance of a writ from a division of the Federal High Court to be served in another division thereof as the Supreme Court appeared to have concluded in this case. Additional provisions show that the issue of leave relates to service of the writ, not issuance of the writ. These are Order 10 Rules 12 and 13 which provide respectively, as follows:
12. Service out of jurisdiction may be allowed by the Court whenever all or any part of the cause of action arose within the jurisdiction.
13. Every application for an order for leave to serve a writ or notice on a defendant out of jurisdiction shall prescribe the mode of service, and shall limit a time after such service within which such defendant is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served, and the court may receive an affidavit or statutory declaration of such service having been effected as prima facie evidence thereof. (Emphasis supplied)
It should also be observed that Sections 96 and 97 of the Sheriffs and Civil Process Act cited in the case deal with service and not the issuance of a writ of summons.
Given the fact that the jurisdiction of the Federal High Court spans the entire territory of the Federal Republic of Nigeria, the term “outside jurisdiction” or “out of jurisdiction” when used in the context of the Federal High Court must mean outside the Federal Republic of Nigeria. It is strongly submitted, albeit with the greatest respect, that the Supreme Court erred when it concluded that a process which issued out of the Lagos Division of the Federal High Court for service in Abuja was ‘out of jurisdiction’. A plaintiff would only be obligated to apply for leave to serve a writ of summons in the Federal High Court under the 1976 rules when the defendant intended to be served resides outside the Federal Republic of Nigeria. To hold otherwise will offend the well-settled rule of statutory interpretation which requires the courts to give effect to the clear and unambiguous language of a statute or rule. See Owena Bank (Nig.) Plc v N.S.E. Ltd.
Support for the writers’ view can be found in a learned treatise. Nwadialo stated that the court has no power to order service out of the area of its jurisdiction except where authorised by statute, or other rules having the force of statute. Territory wise the jurisdiction of a High Court of a State is restricted to areas covered by the State while that of the Federal High Court, or any other Federal Court, for that matter, extends over the entire Federation. The learned author went further to say that there are two forms of service out of jurisdiction. The first is service in one State of the Federation of a process issued by a court of another State. The service is within Nigeria but between different jurisdictions. As far as the Federal Courts are concerned, this situation cannot arise as every part of the country falls within their territorial jurisdiction. The other form is service outside Nigeria of a process emanating from a court whether Federal or State.
In his lead judgment in MV Arabella, at page 207, Ogbuagu, JSC observed thus: “I note that even the issuance of the said writ of summons which was not endorsed for service of (sic) the defendants outside jurisdiction, was rightly declared by the learned trial judge as void. This is because of the mandatory nature of the provisions of the Act ---.” Again, it is respectfully submitted that the learned Justice conflated the issue of issuance of writ with service of the same writ. Assuming, without conceding, that the appellant ought to have sought and obtained leave of court to serve the writ out of jurisdiction, the failure to endorse the writ in accordance with the provisions of Section 97 of the Sheriffs and Civil Process Act will not render the issuance of the writ void. Such failure to endorse will only affect the service of the writ, not the issuance which precedes service.
In upholding the Court of Appeal decision, the Supreme Court relied heavily on the provisions of Sections 96 and 97 of the Sheriffs and Civil Process Act which read as follows:
96 (1) A writ of summons issued out of or requiring the defendant to appear at any court of a State or the Capital Territory may be served on the defendant in any other State or the Capital Territory.
(2) Such service may, subject to any rules of court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital Territory in which the writ was issued.
97. 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 endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say) –“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).”
A proper reading of sections 96 and 97 of the Sheriffs and Civil Process Act together with
the Federal High Court Act will show that those sections of the Sheriffs and Civil Process Act cannot rightly come in aid of the view that the appellant ought to have sought leave to serve its writ of summons in this case. Section 96 (1) deals with a writ of summons issued out or requiring a defendant to appear at any court of a State or the Capital Territory. The Federal High Court is certainly not a court of a State or the Capital Territory. The section refers to a State court or a court established specifically for the Federal Capital Territory e.g. the High Court of the Federal Capital Territory, but not a federal court like the Federal High Court which is established for the Federal Republic of Nigeria.
A close reading of Section 97 will also show clearly that what is envisaged is a State and not a Federal court. The words “in addition to any endorsement or notice required by the law of such State or the Federal Capital Territory, ---” again show that the reference is to a State court or a court of the Federal Capital Territory. In the context of the Federal High Court, the question remains, what is ‘outside jurisdiction’?
If indeed the Supreme Court is correct in its conclusion in MV Arabella, then by logical extension of reasoning, a plaintiff in an action commenced in the original jurisdiction of the Supreme Court will require leave of court to serve any defendant in the action who is outside Abuja, where the court sits. The originating process for such an action must also be endorsed in accordance with Section 97 of the Sheriffs and Civil Process Act. The upshot of such a decision is that if Lagos State Government commences an action in the original jurisdiction of the Supreme Court against the Federal Government and joins the other 35 States of the Federation, then Lagos State will require the prior leave of the Supreme Court to serve the originating processes on all the other defendants who are outside Abuja.
Order 7 rules 1 and 2 of the Supreme Court Rules provides as follows:
(1) Where any person out of jurisdiction is a necessary or proper party to an action commenced in the original jurisdiction of the Court and properly brought against some other person duly served within jurisdiction, the Court may allow service of a summons out of the jurisdiction.
(2) Every application for an order for leave to serve a summons on a defendant out of jurisdiction shall be supported by evidence by affidavit or otherwise showing in what place or country such defendant is or probably may be found, and the grounds upon which the application is made.
The above provisions are similar to Order 10 rules 12 and 13 of the Federal High Court (Civil Procedure) Rules.
From the foregoing, it is clear that the Supreme Court was wrong to hold that the appellant needed leave to serve the writ on the respondent who was in Abuja. The Supreme Court was also wrong to hold that the failure to endorse the writ of summons in line with section 97 of the Sheriffs and Civil Process Act rendered the writ void.
The foregoing analysis shows that the Supreme Court’s conclusion in MV Arabella is very flawed indeed, and may have worked hardship upon some hapless litigants. The positive thing though is that this decision now appears moot; and may well now be consigned to a mere historical footnote because of the new Federal High Court (Civil Procedure) Rules. Order 6 makes very comprehensive provisions with regard to service out of jurisdiction. In Rule 31 of Order 6, it is provided that “In this order “Out of Jurisdiction” means out of the Federal Republic of Nigeria.” It follows the path of The Uniform High Court Rules which in Order 12 rule 14 defines “Out of Jurisdiction” as “out of the Federal Republic of Nigeria”.
Obviously, the drafters of the new Federal High Court Rules have succeeded in avoiding the controversy brought about by the Supreme Court decision in MV Arabella. Therefore, one can safely opine that under the current rules, it is only where a defendant is outside the Federal Republic of Nigeria that a plaintiff will need leave of court to effect service upon such a defendant. Endorsement which is required by Section 97 of the Sheriffs and Civil Process Act does not change the legal position. The additional “endorsement” which Section 97 addresses relates to ‘service’ not to ‘issuance’ of the writ. Besides, the writs contemplated by Sections 96 and 97 of the Sheriffs and Civil Process Act are those which relate to State or the Capital Territory, not a writ which issued out of a federal court like the Federal High Court.
In those situations involving writs which issued out of a court of the Federal Capital Territory or a constituent State within the Federal Republic of Nigeria, lack of such endorsement on the writ can only affect the service thereof, not its issuance. And because the issuance of a writ of summons in Nigeria is done by court officials (not by litigants as in some foreign jurisdictions), such failure to endorse should not be visited upon a litigant. At best, such failure to endorse should render service of the writ voidable at the option of the defendant, and not void. In Broad Bank of Nig. Ltd. v Alhaji S. Olayiwola & Sons Ltd., the Supreme Court, per Pats-Acholonu, JSC held inter alia that:
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. (Emphasis supplied.)
The Supreme Court also in that case agreed with the appellant that if it is the prescription of the law 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.
*Ikenna Okoli, Fellow of the Chartered Institute of Arbitrators (U.K.), IBA Fellow in International Legal Practice, is a Partner in the Law firm of IOL Associates. K.C. Okoli, Attorney and Counsellor at Law, State of New York; Barrister and Solicitor of the Supreme Court of Nigeria.
(2008) 11 NWLR (Pt. 1097) 182
 No. 37 of 1993
 Cap. 407 LFN 1990, now Cap. S6 LFN 2004
 (1995) 3 NWLR (Pt. 382) 203
 (1988) 4 NWLR (Pt.91) 664
 Federal High Court Act
 (1997) 8 NWLR (Pt.515) 1 at 12
 Fidelis Nwadialo, Civil Procedure in Nigeria (2nd ed., 2000, University of Lagos Press) at 265-266
 As amended in 1999
 (2005) 3 NWLR (Pt.912) 434 at 453
 Supra at pp. 456-457