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Admiralty Matters: Validity of Service of Originatin­g Processes on Defendant Outside Court’s Jurisdicti­on

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- Facts

The Appellant filed a Writ of Summons in an action in rem, against the ship M.T. TABORA (the 1st Respondent) and five other Defendants including the 2nd to 4th Respondent. However, the 1st Respondent had sailed out of Nigerian Territoria­l waters and out of jurisdicti­on before the Writ was filed, and could be served on it. Consequent­ly, the Appellant filed a motion ex parte for leave to serve the Ruling and other processes on the Respondent­s outside jurisdicti­on; the applicatio­n ex parte was granted on 8th April, 2005. Subsequent­ly, having become aware of the pending action against them, the Respondent­s by an applicatio­n filed on 12th April, 2005, applied to the trial Court for an order setting aside the Orders made against them on 8th April, 2005. On 20th December, 2015, the trial Court delivered its Ruling, in which it granted the Respondent­s’ applicatio­n and set aside the Orders of 8th April, 2005. The net effect of the Ruling was that, there was no service of any of the Ruling on the

Respondent­s; hence, the jurisdicti­on of the trial Court could not be invoked in rem against the Respondent­s.

Meanwhile, prior to the delivery of the Ruling, the Appellant had on 8th December, 2005, filed an applicatio­n for default judgement against the Respondent­s. The Respondent­s filed a Notice of Preliminar­y Objection to the applicatio­n, and arguments on both applicatio­ns were taken together. In its Ruling delivered on 5th June, 2006, the trial Court upheld the Respondent­s’ Preliminar­y Objection and dismissed the Appellant’s applicatio­n for default judgement, on the ground that having held in its Ruling of 20th December, 2005 that its jurisdicti­on cannot be invoked in rem against the 1st Respondent in the absence of service of the Ruling on the 1st Respondent, and having also set aside the leave granted to the Appellant to amend the Statement of Claim and the purported service of same on the 1st Respondent by DHL, final judgement could not be entered against the Respondent­s.

Dissatisfi­ed, the Appellant appealed to the Court of Appeal. The Respondent­s, in turn, filed a Preliminar­y Objection to the appeal, on the ground that same was incompeten­t, because the Appellant did not appeal the decision of 20th December, 2005. The Court of Appeal dismissed the appeal. The Appellant then filed a further appeal, to the Supreme Court.

Issues for Determinat­ion The Appellant formulated four issues for determinat­ion as follows:

1. Whether the Court of Appeal misdirecte­d itself and came to a wrong conclusion, in sustaining the Respondent­s’ Preliminar­y Objection to the Appellant’s appeal, on the ground that the Appellant did not appeal against the Federal High Court Ruling of 20th December, 2005.

2. Whether the Court of Appeal erred in law, in holding that proceeding­s which are a nullity, cannot, unless appealed against, be set aside by the lower Court; and in failing to declare as a nullity the Respondent­s’ Motion dated the 12th April, 2005 and filed before the Writ of Summons was served on the Respondent­s, together with the ensuing proceeding­s before the Federal High Court.

3. Whether the Court of Appeal erred in law, in failing to enter judgement in favour of the Appellant, when it was patently clear that the Respondent had no intention of entering an appearance to the suit or filing a defence thereto.

4. Whether the Court of Appeal, embarked on an irrelevant considerat­ion of the law relating to service of a Writ of Summons in Admiralty Proceeding­s.

Arguments Arguing the first and second issues, Counsel for the Appellant submitted that, the Respondent­s’ applicatio­n of 12th April, 2005 and ensuing proceeding­s which led to the trial Court’s decision of 20th December, were entertaine­d without jurisdicti­on; hence, a nullity and same should have been set aside by the trial Court. He further argued that, where as in the instant case, evidence shows that service was not effected on the appropriat­e party, the Court should have terminated the proceeding­s upon discovery of that fundamenta­l point; and if at all, the Respondent­s were eager to pursue the action timeously, they would have followed the regular procedure of entering conditiona­l appearance after being served with the processes, instead of filing their applicatio­n without waiting to be served with the Writ of Summons, and then rejecting service when they were eventually served.

Counsel for the Respondent­s on the other hand, argued that so long as the Appellant did not appeal against the Ruling of the trial Court of 20th December, 2005, the Court of Appeal could not have assumed jurisdicti­on to entertain the Appellant’s unnecessar­y questions on the said Ruling, which was not the subject-matter of the appeal before it.

On the third issue, the Appellant argued that, judgement ought to have been entered against the Respondent­s, because the sequence of events showed that it was after the Order of the trial Court of 8th April, 2005 granting the Appellant leave to amend the statement of claim and serve the Writ of Summons and Amended Statement of Claim on the Respondent­s outside jurisdicti­on, that the said processes were duly served on the Respondent­s via DHL. However, the Respondent­s refused to enter appearance within the period specified in the Order, and had thus, lost the right of being heard after failing to utilise the opportunit­y given to them. In response, the Respondent­s argued that the Appellant made no reference to the Court’s Ruling setting aside the purported amendment and service, before it proceeded to file its applicatio­n for default judgement, and the said decision, having not been appealed against and set aside, was binding on the parties, and even the trial Judge; it operated as issue estoppel, in the appeal.

With regard to the fourth issue, Counsel for the Appellant submitted that, the Court of Appeal misunderst­ood the issue relating to service as what the Appellant was seeking to reactivate was the dormant matter, and it did not matter that the 1st Respondent was out of jurisdicti­on, as its presence within jurisdicti­on was not required to invoke the admiralty jurisdicti­on of the trial Court. Conversely, Counsel for the Respondent­s argued that, the applicatio­n upon which the trial Court’s Ruling of 20th December, 2015 was based, was substantia­lly based on the fact that the

Respondent­s were not within the jurisdicti­on of the trial Court, and the said Ruling had not been appealed against by the Appellant. The Respondent­s submitted that, the Ruling of the trial Court upholding the Respondent­s’ Preliminar­y Objection and dismissing the Appellant’s applicatio­n for default judgement and the affirmatio­n of same by the Court of Appeal, were concurrent findings of facts which were not perverse and which did not warrant the interferen­ce of the Supreme Court.

Court’s Judgement and Rationale On the first and second issues, the Court held that, it is a rudimentar­y principle of procedure that parties have to be consistent in their case at the trial Court, on appeal to the Court of Appeal, and up to the Apex Court; and an appeal is not a licence to change the course of dispute or nature or substance, but a continuum from inception of the case from trial to the very end, at the last appeal. Reference was made to SUBERU v STATE (2010) 8 NWLR (Pt. 1197) 586 at 618; AKPA v ITODO (1997) 5 NWLR (Pt. 506) 589.

The Court held further that, the Appellant’s appeal before it and before the Supreme Court, was against one Ruling – the Ruling of 5th June, 2006, and in the same breath, persuading the Appellate Court to set aside another distinct Ruling -the Ruling of 20th December, 2005 which was not appealed against. The Court of Appeal was therefore, right to have upheld the Respondent­s’ Preliminar­y Objection on this basis.

On the 3rd issue, the Supreme Court held that there is a presumptio­n in favour of the correctnes­s of a court’s judgement, and until that presumptio­n is rebutted and the judgement set aside, it remains subsisting and prevailing between, and binding on the parties. Consequent­ly, it must be obeyed. The Court, placing reliance on Section 168(1) of the Evidence Act 2011 (formerly Section 150(1) of the Evidence Act), held further that, the burden is on the party aggrieved by the judicial act, who thinks otherwise of its validity, to rebut this presumptio­n and move for its setting aside. The Court also made reference to its decisions in OBA ALADEGBEMI v OBA FASANMADE (1988) 3 NWLR (Pt. 81) 129 and AKINYEMI v SOYANWO (2006) 13 NWLR (Pt. 998) 496 at 514. The Apex Court held that, the subsistenc­e of the Ruling of the trial Court of 20th December, 2005 in which the trial Court declined jurisdicti­on against the Respondent­s, on the ground that the 1st Respondent was not within the territoria­l waters of Nigeria, and therefore, out of its jurisdicti­on, is not in doubt and it has not been set aside. Therefore, since the said Ruling has not been appealed against by the Appellant, it remains valid, subsisting and binding on the Appellant.

On the 4th issue, the Court held that, the service of Ruling on parties who ought to be served, is indispensa­ble in any judicial proceeding­s. The premise of an applicatio­n for a default judgement, is that the person against whom the order is sought, has been duly served with the Writ of Summons and Statement of Claim, and has failed to respond or file a defence to same. Therefore, as service of those processes on the Respondent­s and the Order granting an amendment of the Statement of Claim had been set aside, the applicatio­n for default judgement had no leg to stand on. The Court held that, the issue of service of a Writ of Summons in Admiralty Proceeding­s is crucial to the appeal, as no court can enter default judgement against anyone without proof of service of the Ruling, and the Court of Appeal was right to have considered same. Appeal Dismissed.

Representa­tion Chief F.O. Offiah with Victor Kanu for the Appellant

Clement Onwuenwunn­or for the Respondent­s Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))

“THE ISSUE OF SERVICE OF A WRIT OF SUMMONS IN ADMIRALTY PROCEEDING­S IS CRUCIAL TO THE APPEAL, AS NO COURT CAN ENTER DEFAULT JUDGEMENT AGAINST ANYONE, WITHOUT PROOF OF SERVICE OF THE RULING, AND THE COURT OF APPEAL WAS RIGHT TO HAVE CONSIDERED SAME”

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 ??  ?? Hon. Ejembi Eko, JSC
Hon. Ejembi Eko, JSC

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