Does the Federal High Court (Civil Procedure) Rules 2009 Limit the Application of the Decision in Owners of the MV “Arabella” v N.A.I.C?

On the 19th May, 2015, this column featured an article titled “Issuance of a Writ for Service out of Jurisdiction: Is Owners of the M.V Arabella still

the law? wherein the writer sought to draw a distinction in the applicability of the Supreme Court decision in MV “Arabella”, which gave judicial imprimatur of the mandatory pre-condition for leave to issue a writ of summons for service out of jurisdiction in all the High Courts, in view of the advancement of the Federal High Court Rules in 2009. That article attracted several commentaries, for and against. One critical opinion expressed was that of my respected Learned friend Mr. Abdul Mohammed, who caused a right of reply on the 26th May, 2015 in This day Lawyer, advancing a completely opposite position to that of the writer as being erroneous. He submitted amongst other things, that, until the Supreme Court is revisited, the decision in MV “Arabella” cannot be jettisoned by any lower court, as it relates to the practice and procedure of issuing a writ of summons for service out of jurisdiction in the Federal High Court, irrespective of the new interpretation of the phrase ‘out of jurisdiction’, pursuant to Order 6 Rule 31 of the extant rules.

Historical Exclusion of the Federal High Court

The Federal High Court was established in 1973. The principal laws regulating the operations, practice and procedure, are the Federal High Court Act Cap F12 LFN 2004 and the Federal High Court (Civil Procedure) Rules in force, albeit other statute regulating certain subject-matters incidental thereto. Section 19 of the Act provides that the jurisdiction of the court is nationwide; that much is clear, even from its name, owing to the Federal System of Government we operate, or pretend to operate in some respect. This simply means that, in regard to the territorial jurisdiction of the court, the whole nation falls within the jurisdictional competence of the court, irrespective of where the court is situated within the nation. See (1995) 3 NWLR Pt. 382) 208.

The Sheriff and Civil Process Act (SCPA) first came into force, in 1945. Section 19 of the Act defines “Courts” to mean High Court of a State and Magistrate Court. Interestingly, in 1975, the Federal Capital Territory High Court was established. Upon subsequent amendment of the SCPA, the FCT High Court was expressly included in the said Section 19, while the Federal High Court was still not mentioned. With this development, it is difficult to give a generic interpretation of the word “High Court “in the statute, to mean every High Court. It simply explains the clear intention of the legislation, on how a true federal structure should operate. The law on interpretation of statutes is settled that, the express mention of a thing excludes others. ABIOLA v FRN

The Implication of MV. “Arabella”

The decision of the Supreme Court in MV “Arabella” decided in 2008, thus, unsettled the waters for many years, as it relates to the scope of applicability of Section 97 of the SCPA to Federal High Court. The decision gave a general application to the provisions of the SCPA, to include all High Courts, including the Federal High Court. This decision unfortunately, has been used to defeat several claims on their respective merit, on grounds of the absence of the pre-conditions for leave of court, which the courts have adjudged not to be a mere irregularity, but one that goes to the root.

Conversely, upon the emergence of the 2009 Federal High Court (Civil Procedure) Rules which replaced the 1976 rules (upon which the Supreme Court decided MV Arabella), some clarity was given to the phrase “out of jurisdiction” pursuant to Order 6 Rule 31. Proactive Judges took an objective position, and rightly so, in the writer’s opinion, to interpret the Rules, to displace the mischief that occasioned the decision in MV Arabella. One of such decisions, was the case of KEYSTONE MICROFINANCE BANK LTD v KEYSTONE BANK LIMITED & CAC in Suit No. FHC/ABJ/CS/424/2013 delivered by My Lord Justice E.C CHUKWU J. (of blessed Memory) in March 2014. Regrettably, some Judges, including respected Justices of the Court of Appeal, have rebuffed any attempt to persuade them to adopt this new line of argument, suggesting to distinguish the position in MV “Arabella” even under different circumstance. A recent development at the Court of Appeal Abuja division in CA/A/561/M/2016 between ORANUBA

v BRISTISH AIRWAYS, the court refused all entreaties by the Appellant counsel, that the law has advanced. The Court, with due respect, was bullish on its position. The Learned Counsel, was literally forced to withdraw his application. Similarly, the Court of Appeal Lagos Division in NIMASA v NOBLE DRILLING NIGERIA LTD

in CA/L/864/2009 delivered on the 5th day of December, 2013 where the court per IYIZOBA JCA held thus:

“The Supreme Court has spoken! Learned Counsel for the Respondent invited the court to depart from the decision of the Supreme Court in M.V Arabella (supra), because this Court is in this appeal being called upon

to consider a provision of statute not considered by the Supreme Court in arriving at the decision..... The only court that can do that something about the very well articulated arguments of both counsel, is the Supreme Court. I hope therefore, that one day, these issues will be put before the Apex Court for re-assessment of its decision in M.V Arabella (supra)”

I get it, lower courts are bound to give an homogenous interpretation of the law, following the guidepost of the Supreme Court vide the doctrine of stare decisis. However, this common law principle does not connote a blanket adoption of the previous decision, the principle of law is that, a case is only an authority for what it decides, the facts and the law must be similar if not in pari

materia, for the previous decision to qualify as a proper precedent. If a blanket copy and paste approach without evaluating the factual matrix of each case is adopted across board, the law cannot advance and the rigour in scholarly arguments canvassed by counsel to improve the law, will be greatly discouraged. In the United States for example, which is also a common law jurisdiction, judicial precedent is not a big deal, a District Judge will not jump at the mere mention of a Supreme Court precedent, he will have to satisfy himself that the decision being urged on him, will meet the justice of the case in the present dispensation.

The Present State of the Law

Thankfully, the Supreme Court was presented with an opportunity to resolve this issue, in 2017. In ZAKIRAI v MOHAM

MED SC/433/2015 delivered on Friday, 28th April, 2017, a pre-election litigation dispute commenced at the Federal High Court, Kano Division, wherein the originating processes were endorsed for service on the Respondent in Abuja. Similar objection was raised, on the ground that leave was not sought to issue the writ which was endorsed for service out of jurisdiction, the Apex Court per Augie JSC succinctly repositioned the law thus:

“The Appellant is right that, the said Order 6 Rule 12(1) of the 2000 Rules provides as follows- no writ which, or notice of which is to be served out of jurisdiction, shall be served without the leave of court. However, his contention is that the first Respondent required leave to issue the originating summons for service outside jurisdiction. He concedes that Order 6 rules 13-17 of the 2009 [extant] Rules makes no provision mention of leave to issue, but contends that it is a rule of practice in conjunction with Order 6 Rules 14(1) of the 2009 Rules... He relied on the decision of this Court in MV. Arabella v NAIC (Supra), which he says gives judicial support and credence to this position and rules of practice that leave must be sought. As the first Respondent submitted, contrary to his assertion, that case was decided based on Order 10 Rule 14 of the 1976 Rules. Thus, the Respondents are right; the Appellant has not come up with convincing arguments to counter the findings of the court below, that the provisions of the 2009 Rules, impose no obligation on the first Respondent to obtain leave to issue the originating summons.

The Supreme Court rightly upheld our earlier submission that, the law having advanced by new rules of court, which clearly interpreted ‘out of jurisdiction’ to mean out of Nigeria, relying on MV Arabella under this dispensation, will simply amount to taking us back to the Stone Age. The rationale for this decision, can be situated on the proem of this article, which I will repeat at the risk of repetition thus:

“Rules of Court are not static; they change as the society evolves and the legal issues become more and more complex or sophisticated. The said Federal High Court (Civil Procedure) Rules of 1976 and 2000 may have stipulated that no writ for service out of jurisdiction can be issued except by leave of court, but the 2009 rules did not say so..... No doubt the Federal High Court (Civil Procedure) Rules, has undergone several modifications geared towards improving access to justice since 1976, and to say that a particular rule must be carried on and implemented under rules made decades ago, amounts to taking the clock back. Let me state that, this sub-issue is resolved against the Appellant”

While I respect the opinion of the Mr. Mohammed, regrettably this pronouncement effectively renders his criticism hollow, when he took a swipe at the writer’s earlier position, by submitting that until the Apex Court is revisited, MV Arabella cannot be distinguished, irrespective of the advancement in the rules.

Conclusion

Quite Frankly, it is the writer’s position that, this issue of marking, endorsement and leave to issue and serve a writ of summons before service of same, are all archaic formalities. The jurisprudence of our practice and procedure, has advanced beyond these unnecessary pre-conditions, which in reality do not change the factual merits of the case. It’s a shame that, you less than 20% of the provisions of our substantive laws, are yet to receive judicial interpretation, yet at the slightest opportunity, we will pursue a technical point to the Supreme Court again and again. As Tobi JSC put it in ABUBAKAR

v YAR’ ADUA (2008) 4 NWLR Pt. 1078 Pg 465 that, the Heaven will not fall if leave of court is not sought and obtained, especially where a waiver will not defeat the rights of parties on the merit.

“....IT IS THE WRITER’S POSITION THAT, THIS ISSUE OF MARKING, ENDORSEMENT AND LEAVE TO ISSUE AND SERVE A WRIT OF SUMMONS BEFORE SERVICE OF SAME, ARE ALL ARCHAIC FORMALITIES. THE JURISPRUDENCE OF OUR PRACTICE AND PROCEDURE, HAS ADVANCED BEYOND THESE UNNECESSARY PRECONDITIONS, WHICH IN REALITY DO NOT CHANGE THE FACTUAL MERITS OF THE CASE”