BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED V THE ATTORNEY GENERAL OF LAGOS STATE & ORS

CORAM

LEWIS , JUSTICE, SUPREME COURT

YAREATA NIMPAR, JUSTICE COURT OF APPEAL

PARTIES

BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED APPELLANTS

1. THE ATTORNEY GENERAL OF LAGOS STATE

2. BRITISH AMERICAN TOBACCO (NIGERIA) LIMITED

3. INTERNATIONAL TOBACCO COMPANY LIMITED

4. BRITISH AMERICAN TOBACCO PLC

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant who was the 4th Defendant at the trial court is resident in England and upon an Ex-parte application by the 1st Respondent for an order seeking the leave of court to serve the Writ and other processes on the 2nd – 5th Defendants which application was granted, the Writ of summons/ Statement of claim were served on the Appellant in England.  The Appellant entered a conditional appearance for the purposes of contesting the jurisdiction of the Court and thereafter filed a Notice of Preliminary Objection challenging the Court’s order and praying for an order setting aside the order of the court granting leave to serve the originating processes outside jurisdiction by courier service and an order striking out the name of the 4th Defendant from the suit. The learned trial judge dismissed the objection holding that to make such order would go against our administration of justice system for Courts to sit on appeal over its own decision simply because parties do not agree with. Dissatisfied with the decision, the Appellant has appealed to this court.

HELD

Appeal dismissed.

ISSUES

1. Did the Lower Court properly exercise its discretion when it ordered the service of Originating Processes on the Appellant outside jurisdiction to defend a claim regarding tortious conducts committed within the Court’s jurisdiction?

2. Has the Appellant established the existence of any circumstances in law that justifies the request of the exercise of the power of the Lower Court to set aside its own Order?

RATIONES DECIDENDI

DISCRETION – IMPLICATION OF THE CONCEPT OF DISCRETION IN LEGAL USAGE

“The concept of discretion in legal usage implies the power to make a choice between alternative options. Where the exercise of discretion is vested as in this case, it follows that there is no absolute answer and the court decides. The rules of the trial court allows the judge to exercise discretion and once exercised judicially and judiciously, it cannot be questioned. There is also no static standard of how a judge should exercise discretion, therefore an appellate court would not disturb the exercise of discretion except if it can be seen on the face of the record that the discretion was not judicially and judiciously exercised.” PER NIMPAR, JCA

EXERCISE OF DISCRETION – JUDGES ARE TO EXERCISE DISCRETION ACCORDING TO THE RULES- WHEN WOULD AN APPELLATE COURT DISTURB THE EXERCISE OF DISCRETION

“The rules of the trial court allows the judge to exercise discretion and once exercised judicially and judiciously, it cannot be questioned. There is also no static standard of how a judge should exercise discretion, therefore an appellate court would not disturb the exercise of discretion except if it can be seen on the face of the record that the discretion was not judicially and judiciously exercised.” PER NIMPAR, JCA

DISCRETION OF COURT – WHAT AMOUNTS TO CHALLENGING THE DISCRETION OF COURT

“Challenging the standard used by a Court in arriving at a decision whether to grant or refuse an application, particularly where the Rules of Court allow it to make that choice, amounts to questioning its discretion, and that is what it is.” PER AUGIE, JCA

GRANT OR REFUSAL OF AN APPLICATION – REQUIREMENT FOR THE GRANT OR REFUSAL OF AN APPLICATION

“The grant or refusal of an application is purely within the province of the discretionary powers of the trial Court, and the only requirement, is that such discretion must at all times be exercised not only judicially but also judiciously on sufficient materials.” PER AUGIE, JCA

EXERCISE OF DISCRETION BY A TRIAL COURT – WHEN CAN AN APPELLATE COURT INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT

“Appellate Courts do not usually interfere with the exercise of discretion by a trial Court, unless it is NOT exercised according to law or it was exercised in a perverse manner.” PER AUGIE, JCA

SERVICE OF PROCESSES OUTSIDE JURISDICTION – ORDER 8 RULE 1 OF THE HIGH COURT (CIVIL PROCEDURE) RULES

“Order 8 rule 1 of the said High Court (Civil Procedure) Rules, gives the lower Court a discretionary power to allow processes to be served outside Nigeria as long as the claim is based on a tort committed within Lagos State, or an injunction is sought as to anything to be done within its jurisdiction or any nuisance is sought to be prevented or removed, or when any person out of its jurisdiction is a necessary party to an action properly brought against some other person duly served within jurisdiction. There is nowhere in the Rules, where the standard to be applied in exercising its discretion to grant or refuse an application to serve processes outside Nigeria, is mentioned or alluded to.” PER AUGIE, JCA

CASES CITED

STATUTES REFERRED TO

Lagos State High Court (Civil Procedure) Rules

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