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