NWABUEZE & ANOR. V. OBI-OKOYE
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NWABUEZE & ANOR. V. OBI-OKOYE
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NWABUEZE & ANOR. V. OBI-OKOYE
BEN NWABUEZE & ANOR.
V
10 JUSTICE OBI-OKOYE,
SUPREME COURT OF NIGERIA
OBASEKI,
J.S.C.
UWAIS,
J.S.C.
15
KARIBI-WHYTE,
J.S.C.
AGBAJE,
J.S.C.
WALT,
J.S.C.
25th November, 1988
APPELLANTS
RESPONDENT
SUIT NO. SC 24/1988
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Appeals - Findings of fact by the Court of Appeal - Unchallenged evidence before the
Supreme Court - Effect.
Practice and Procedure- Exercise of jurisdiction of a court - Proper issue of writ and proper
service of it - Conditions procedent for the exercise of the jurisdiction over the
subject-matter of an action - Issue of a writ on a defendant - Leave required prior to the
issue if outside territorial jurisdiction - Writ issued without compliance -
Principles upon which exercise of jurisdiction based - Effectiveness.
Jurisdiction - Territorial jurisdiction - State High. Court relates to state only - State High
Court exercises jurisdiction over all persons who reside in Nigeria even though they reside
outside its territorial jurisdiction.
ISSUES:
1.
Whether a writ of summons can be issued for an action in defamation in which
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the cause of action arose in one state against a defendant who neither resides
nor carries on business in that state.
2.
Whether the Supreme Court can overrule a finding of fact not challenged in the
Court of Appeal.
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3. Whether a plaintiff in an action for defamation requires leave of Court to issue a
writ against a defendant who is outside the territorial jurisdiction of the court.
4. Whether the provisions of the sheriffs and Civil Process Act, relate with the issue
of the writ of summons with reference to a matter within the area of jurisdiction
of a State House of Assembly.
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5. Whether a trial Court has jurisdiction to treat non-compliance with the mandatory
provisions of the Sheriffs and Civil Process Act Cap.
189
Laws of the Federation
as a mere irregularity and relieve a plaintiff of the consequences attaching at law
to such non-compliance with the provisions of the statute.
FACTS:
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This is an action for libel brought against the appellants in Anambra State High
Court. The defendants' addresses for service as shown in the writ of summons were
in Lagos State. However, leave to issue the writ was not sought for nor obtained.
After the issue of writ the respondent applied for substituted service by sending the
processes in the action to the appellants by registered post. The application was
duly granted.
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30
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NIGERIAN SUPREME COURT CASES
[1988] 3 N.S.C.C.
processes in the action to the appellants by registered post. The application was
duly granted.
By a motion, the appellants sought to have the writ and service of the writ set
aside on grounds,
inter alia,
that the writ was irregularly issued by reason of failure
to comply with the Sherrifs and Civil Process Act and that the defendants in the ac-
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tion were resident outside the jurisdiction of the Court.
The trial Court held that the service of the writ of summons was improper and set
aside the service of the writ of summons for non-compliance with S.97 of the Act be-
cause it was not endorsed for service outside Anambra State and ordered that the
writ be endorsed and that steps be taken to serve the writ after the endorsement.
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On appeal to the Court of Appeal Enugu the court dismissed the defendant's ap-
peal and affirmed the findings of the lower court. The defendants still not satisfied
with the decision of the Court of Appeal have now appealed to the Supreme Court
attacking the Court of Appeals decision on the grounds
inter alia
that a writ of sum-
mons cannot be issued against a defendant outside Anambra State without leave of
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court and service of same writ of summons must be by leave, that these are condi-
tions precedent for a validly issued writ of summons. Further that the Sheriffs and
Civil Process Act Cap. 189 laws of the Federation are mandatory provisions which
a High Court has to comply it.
HELD:
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1.
Where a defendant is out of jurisdiction no writ for service out of jurisdiction can
be issued except by leave of the court
(Re: Eager, Eager v. Johnstone
(1882)
22 Ch.D.). Issue of writs in Anambra State and in England are different, the rule
should not be applicable. In Anambra State the plaintiff commences an action
by application to the Registrar for the issue of the writ of summons and pays the
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prescribed fees. He also provides the endorsement on the writ of summons the
claim, and the addresses or the defendants. Once the requirements of order II
have been satisfied. and errors in the issue of the writ of summons cannot be
visited on the plaintiff.
b. Where a Court is called to act outside its territorial jurisdiction in respect of a
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matter in which there is a cause of action, plaintiff must satisfy the conditions
prescribed for doing so. An application for leave to issue the writ is a condition
for the issue of summons. For an action to have commenced the writ of
summons must have been validly issued. In the instant case, the defendants
are outside jurisdiction of the High Court of Anambra State, the plaintiff had to
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obtain leave of the Anambra State High Court before he could issue or cause
the writ of summons to be issued.
2.
Where a finding of law or of fact in the judgment of the Court of Appeal is not
challenged in an appeal to the Supreme Court, that finding stands rightly or
wrongly for the purpose of the appeal in question regardless of the merit of what
`
t0
the trial court might have said on the same point. Under this premise, there is
no factual basis for the contention of the plaintiff that the jurisdiction of the High
Court in this case has been exercised in accordance with the provisions of Sec.
22(2) of the High Court Law.
3.
The issue of writ of summons and the service of the same writ on a defendant
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are conditions precedent for the exercise of a court's jurisdiction over the
defendants. In the instant case, a condition precedent for the issue of the writ
of summons against the defendants who are resident outside the area of
territorial jurisdiction of the High Court of Anambra State and with whom, neither
of them carries on business within that area of jurisdiction, is that leave of the
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State High Court had to be first obtained before the writ was issued.
4.
Section 96(1) and (2) of the Sheriffs and Civil Process Act provides authority for
the service of the writ of summons in this case issued in the Anambra State High
Court for service on the defendants who reside outside of Anambra but within
NWABUEZE & ANOR.
V. OBI-OKOYE
55
Nigeria, but it has nothing to do with the issue of the writ of summons itself, a
matter evidently within the area of jurisdiction of the House of Assembly of a
state, whilst service of a writ of summons outside the state but within Nigeria is
within the area of jurisdiction of the National Assembly which must be deemed
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to have enacted the Sheriffs and Civil Process Act.
5. The Court of Appeal having admitted that the High Court Rules of Anambra State
are silent on the venue where the action could be prosecuted ought to have
resorted to the provisions of Sec1ion 16 of the High Court law which provides
that in such cases, where the local rules are inadequate or has made no
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provision, the jurisdiction should be exercised in substantial conformity with the
law and practice for the time being observed in England in the High Court of
justice on the 30th day of September, 1960. This rule of Court is mandatory in
its terms. Thus where the defendant is out of jurisdiction no writ for service out
of the jurisdiction can be issued except by leave of the court. Leave to issue writ
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of summons against defendants who are outside the jurisdiction of court and
leave to serve the writ of summons or notice of writ when validly issued out of
the court's jurisdiction are two separate issues.
[As to
Service of Process outside Jurisdiction,
see
Skenconsult (Nig.) Ltd. v. Ukey
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[1981] N.S.C.C. 1.
Ezomo v. Oyakhire
[1985] 1 N.S.C.C. 280.]
[As to
Territorial Jurisdiction,
see
Onyeama & Ors. v. Oputa & Ors.
[1987] 2
N.S.C.C. 900.]
CASES REFERRED TO IN JUDGMENT:
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1.
Ezomo v. Oyakhire
(1985) 2 S.C. 260: (1985) 1 N.W.L.R. 195.
2.
Berkeley v. Thompson
(1886), 32 Ch.D. 350.
3.
Tessell v. Halien
(1992) 1 W.B. 321.
4.
Matthews v. Kuwait Bechtel Corporation
30 5.
Anisminic Ltd. v. The Foreign Compensation Commission & Anor.
(1969) 1
All E.R. 208.
6.
Sken-Consult Nig. Ltd. v. Ukey
(1981) 1 S.C. 6.
7.
Madukolu & Others v. Nkemdilim
(1962) 1 All N.L.R. 587.
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8.
Williams v. Cartionright
(1885) 1 Q.B. 142 C.A.
9.
Bowlong v. Cox
(1926) A.C. 751, 754.
10.
Logan v. Bank of England
(1906) 1 K.B. 141 C.A.
11.
British Bata Shoe Co. Ltd. v. Melikan
(1956) 1 F.S.C. 105.
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12.
Nigerian Ports Authority v. Panalpina World Transport (Nigeria) Ltd. & Ors.
(1974) N.M.L.R. 82.
13.
Burns v. Cambell
(1951) 2 All E.R. 965.
14.
Olubusola Stores v. Standard Bank Nigeria Limited
(1975) 4 S.C. 51.
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15.
Wilson Electric Transformer
Co.
Ltd. v. Electricity Commission of New South
Wales
(1968) V.R. 330.
16.
John Ukoh v. Godwin Akatu
(1974) 4 E.C.S.L.R. 202.
17.
Olayiwola v. Nwadike
(1967) N.M.L.R. 15.
18.
Fajinmi v. Speaker, Western House of Assembly
(1962) 1 All N.L.R. 205.
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19.
Laibru Ltd. v. Building sd & Civil Engineering Contractors
(1962) 1 All N.L.R.
387.
20.
Attorney-General v. Birmingham James Rea District Drainage Board
(1912)
A.C.
788.
21.
Ndaeyo v. Ogunnaya
(1977)
1 S.C. 11.
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