CORAM
SUNDAY AKINOLA AK1NTAN, JSC,JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JSC,JUSTICE, SUPREME COURT(Lead Judgment).
PARTIES
OWNERS OF THE MV “ARABELLA” APPELLANTS
NIGERIA AGRICULTURAL INSURANCE CORPORATION
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant who is/was the Plaintiff in the trial court, on 4th January, 1996, instituted an action in the Undefended List against three defendants jointly and severally claiming the sum of $34,578.80 (Thirty-four Thousand five hundred and seventy eight US dollars, eighty cents) as the amount owed it by the said defendants.
HELD
APPEAL DISMISSED
ISSUES
1. Whether the Court of Appeal was right in setting aside the issuance of service of the Appellant’s Writ of Summons taken out in the Federal High Court, Lagos on the grounds that leave was required to issue and serve the same on the Respondent at Abuja?
2. Was the Court of Appeal right in failing to enter judgment under the “Undefended List” for the Appellant herein as against the Respondent when it was clear that the said Respondent has no defence to the suit and did not file any notice of intention to Defend as required under Order 3 Rule 11 Federal High Court (Civil Procedure) Rules, 1976 (then applicable)?
RATIONES DECIDENDI
WHERE A COURT HOLDS THAT IT LACKS JURISDICTION OR THAT AN ACTION IS INCOMPETENT
“It is trite that where a court finds out and holds that an action is incompetent, null and void or that it has no jurisdiction to entertain it, it does not dismiss the action, but merely strikes it out” PER I. F. OGBUAGU, JSC
A WRIT OF SUMMONS FOR SERVICE ON DEFENDANTS OUTSIDE JURISDICTION WHICH IS NOT SO SPECIALLY ENDORSED IS VOID.
“I note that even the issuance of the said Writ of Summons which was not endorsed for service of the defendants outside jurisdiction, was rightly declared by the learned trial Judge, as void” PER I. F. OGBUAGU, JSC
THE ATTITUDE OF AN APPELLATE COURT TO A BAD BRIEF
“It is settled firstly, that the attitude of an Appellate Court, is to make the best that it can, out of a bad or inelegant Brief and need not strike it out” PER I. F. OGBUAGU, JSC
THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF PROCEEDINGS.
“The issue of jurisdiction can be raised at any stage of proceedings – the court should deal with such issue first – This is why and this is also settled, that the issue of jurisdiction which can be raised at any stage by either the parties, or the court, is decided when the point is taken. This is also why, it is settled that whenever an issue of jurisdiction is raised, a court should deal with it first or promptly or expeditiously, as it has jurisdiction, to decide whether or not it has jurisdiction” PER I. F. OGBUAGU, JSC
WHERE AN ACTION IS COMMENCED OUTSIDE THE LIMITATION PERIOD
With the greatest respect, having held that the cause of action arose either about September, 1991 or in May, 1993, the action having been brought in January, 1996 i.e. more than the (12) twelve months period specified in the Decree, the learned trial Judge, was in gross error in relying on an alleged admission which in any case, was made, after the action had already been statute-barred. The said admissions were made in the said exhibits in 1995. The question I or one may ask is, did the so-called admission retrospectively, revive the suit that was already “dead” having been caught by the limitation period? I think not. In fact, the learned trial Judge “imported” the doctrine of admission which is a common law principle, into a statutory provision. This is not right. The said admission, was about twenty-two (22) months after the action was statute-barred”
NON COMPLIANCE WITH RULES OF COURT
“Firstly, as to how Rules of court are treated, it is now firmly settled that Rules of Court, are not mere rules, but they partake of the nature of subsidiary legislations by virtue of Section 18(1) of the Interpretation Act and therefore, have the force of law. See the case of Akanbi & ors. v. Alao & anr. That is why Rules of court, must be obeyed. This is because and this is also settled, that when there is non-compliance with the Rules of court, the court, should not remain passive and helpless. There must be a sanction, otherwise, the purpose of enacting the Rules, will be defeated” PER I. F. OGBUAGU, JSC
A VALID WRIT OF SUMMONS WHICH IS SERVED WITHOUT COMPLIANCE WITH THE LAW IS VOID.
“Secondly, and this is also settled, issuance of civil process and service of the same, are distinct though inter-related steps in civil litigation. A Writ may be valid while its service, (as in the instant case leading to this appeal), may suffer from some defect” PER I. F. OGBUAGU, JSC
WHERE THE COURT OF APPEAL FAILS TO CONSIDER AN ISSUE OF LAW PROPERLY RAISED BEFORE IT
“Since I have respectfully held that the court below, was wrong in its said approach, this Court in my respectful view, has an option either to send the case back to the court below to pronounce on the said issues which can be dealt with together or invoke its powers under Section 22 of the Supreme Court Act and Order 8 Rule 12 (2) of the Supreme Court Rules which provides that the Court, has wide powers to deal with any appeal before it and make any order as is just to ensure the determination on matters in respect of the real issue or issues in controversy between the parties. I have noted in this Judgment that an appeal is in the nature of a re-hearing. I have also noted that the suit leading to this appeal, was initiated/instituted in 1996 and that the Latin maxim is, Interest Republicae ut sit finis litium – There must, in the public interest, be an end to litigation” PER I. F. OGBUAGU, JSC
A SUCCESSFUL PARTY WHO SEEKS TO SET ASIDE A CRUCIAL FINDING IN A CASE
“This is why and this is also settled, that where a party is seeking to set aside a finding which is crucial and fundamental to a case, he can only do so, through a substantive cross-appeal” PER I. F. OGBUAGU, JSC
WHERE A COMMON LAW PRINCIPLE IS IN CONFLICT WITH A STATUTORY PROVISION
“It is now settled, that where statutory provision, is in conflict with or differs from common law, the later-common law, gives place to the statute”PER I. F. OGBUAGU, JSC
ESSENTIALS FOR A CROSS-APPEAL TO BE VALID
“It is also settled, that a Cross-Appeal, is akin to a counter-claim and to be valid, a competent Notice of Appeal is filed, after which, Briefs are filed and exchanged” PER I. F. OGBUAGU, JSC
IMPORTANCE OF JURISDICTION
“Secondly, if a court is shown to have no jurisdiction, the proceedings however well conducted, are a nullity” PER I. F. OGBUAGU, JSC
IN THE INTERPRETATION OF STATUTES, CLEAR WORDS SHOULD BE GIVEN THEIR ORDINARY MEANING WITHOUT RESORT TO ANY INTERNAL OR EXTERNAL AID.
“The cardinal principle of law in the construction or interpretation of a statute is that where the words are clear, the court should give the words used their ordinary meaning without resort to any internal or external aid” PER I. F. OGBUAGU, JSC
AN ISSUE OF WHETHER AN ACTION IS STATUTE BARRED OR NOT IS A QUESTION OF LAW TOUCHING ON JURISDICTION.
“It need be stressed and this is also settled firstly, that the question or issue of whether or not an action is statute-barred is one touching on or goes to jurisdiction” PER I. F. OGBUAGU, JSC
CASES CITED
Patkun Industries Ltd. v. Niger Shoes Manufacturing Co. Ltd.Aro v. FabohundeNwadike & ors. v. IbekweDouglas v. Shell Petroleum Development Co. Ltd.First City Merchant Bank Ltd. & 4 ors. v. Abiola & Sons Bottling Co. LtdTukur v. Government of Taraba StateAfrican Continental Seaways Ltd v. Nigerian Dredging Roads & General Works Ltd.Hon. Minister FCT v. Kayode Ventures.Shitta-Bev v. Attorney-General of the Federation & anorChief Gani Fawehinmi v. Inspector-General of Police & 2 orsNwabueze & anor. v. Justice Obi Okoye
STATUTES REFERRED TO
Section 18(1) of the Interpretation ActSection 22 of the Supreme Court Act and Order 8 Rule 12 (2) of the Supreme Court Rules