Territorial Jurisdiction of the Federal High Court and Sections 96 and 97 of the Sheriffs and Civil Process Act: Owners of The Mv ‘Arabella’ v NAIC Revisited
F.J. Oniekoro*
Abstract
Amongst the factors that determine the jurisdiction of a court are the utilisation of the appropriate court process(es) and compliance with the relevant steps in the commencement of the action. This paper examines the pronouncement of the Supreme Court in Owners of the MV Arabella v NAIC on the need for leave to issue and serve an originating process filed at the Federal High Court but meant for service on a party who resides in a different division of the same Federal High Court and finds the decision to be less convincing and inappropriate. The paper points out the defect in the decision and suggests a reconsideration of the position in subsequent similar cases.
1. Introduction
Plainly, the use of the word ‘jurisdiction’ at the trial court and later the Supreme Court to describe the basis of the appellant’s objection to his trial by the Federal High Court sitting in Abuja appears to be out of place. This is because the Federal High Court in this country irrespective of whether it sits in Lagos, Abuja or even Maidiguri in Borno State, the jurisdiction of the court is not restricted to any particular Judicial Division of the Court but cuts across the entire Country. To this extent therefore it would be wrong in our view to talk of the jurisdiction of a
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* LL.M, B.L, Senior Lecturer, Property Law Practice, Nigerian Law School, Enugu Campus. E-mail: frankiruosa@yahoo.com.au
Federal High Court in Lagos as distinct from the jurisdiction of the same Court in Abuja since it is one and the same court.’[1]
If the above comment is a correct statement of the law on the territorial jurisdiction of the Federal High Court, there is urgent need to reconsider the decision of the Supreme Court in Owners of the MV ‘Arabella’ v NAIC[2] as it relates to issuance and service of processes of the Federal High Court issued in a State and to be served in another State. Must a process filed at the Federal High Court (in a particular division and to be served on a party in a different division of the same Federal High Court) be endorsed in the terms as contained in section 97 of the Sheriffs and Civil Process Act? Does such an originating process require the leave of the Federal High Court to be issued? Does the Sheriffs and Civil Process Act provide for issuance of a writ or only service? What is the appropriate consequence for non-compliance with section 97 Sheriffs and Civil Process Act?
This work is divided into four parts, namely: Facts and decision in Owners of the Mv ‘Arabella’ v NAIC; Analysis of cases relied upon by the Supreme Court in Owners of the Mv ‘Arabella’ v NAIC; Consideration of Relevant provisions of the Sheriffs and Civil Process Act and Conclusion. It is our argument and conclusion that the position taken by the Supreme Court contradicts territorial jurisdiction conferred on the Federal High Court by the Constitution and the Federal High Court Act and should therefore be revisited in the future should a similar case come before the Supreme Court. The Sheriffs and Civil Process Act[3] is referred to as ‘the Act.’
2. Facts of the Case
The appellant commenced the suit under the undefended list procedure against the respondent and two other defendants jointly and severally at the Federal High Court, Lagos. Service of the writ of summons was effected on the defendant in Abuja. The respondent raised a preliminary objection to the effect that the writ of summons was improperly issued and served and that the appellant’s case was statute-barred. The trial court in a considered ruling held that the action was not statute-barred as the cause of action was revived by the subsequent written admission of the respondent. The Court however held that the writ of summons was not properly issued or served. Consequently, the writ of summons and its service was set aside and the suit dismissed. Both parties appealed against the ruling of the court. Whilst the appellant challenged the dismissal of the suit, the respondent appealed against the decision on whether or not the action was statute-barred. The Court of Appeal upheld the decision of the trial court on the issuance and service of the writ of summons but set aside the order dismissing the suit. It dismissed the cross-appeal for being academic. Both parties also appealed to the Supreme Court.
In its judgment, the Supreme Court in the leading judgment by Ogbuagu, JSC dismissed the appeal, upholding the decision of both the trial court and the Court of Appeal. For good appreciation of our view about the decision of the Supreme Court, we shall quote the leading judgment of the Court as delivered by Ogbuagu, JSC extensively.[4] To be sure there is no controversy about the issue submitted for determination, His Lordship stated:[5]
The said issues of both parties, in my respectful view, are substantially the same or similar although differently couched. I will therefore, deal with them together in this judgment. I note that in paragraph 4.1 at page 3 of the appellant’s brief, it is conceded that it is not in dispute that the writ of summons was issued at the Federal High Court Registry, Lagos and was served on the respondent in Abuja – a place outside the jurisdiction of the Federal High Court sitting in Lagos, without the prior leave of the trial court being sought and obtained by the appellant. I note also that in the respondent’s brief, it is stated that the said writ was to be served on the appellant. It is also conceded by the appellant in paragraph 4.2 of its brief that the court below-per Aderemi, JCA (as he then was) correctly, identified the issue for determination before it when it stated at page 184 – last paragraph of the records as follows:
As shown in this appeal, it is the validity of the service of the writ of summons on the 2nd defendant in the court below and, who is now the respondent before us, that is being challenged.
It is then submitted that ‘however’ the court below, at page 185 of the records, held inter alia, as follows:
From the endorsement in the summons for service, it is not in dispute that the 2nd defendant has its address for service at Plot 452, Tafawa Balewa Way, Area 3 Garki, Abuja, a place outside the jurisdiction of the Federal High Court sitting in Lagos.
To capture the submissions of the parties on the issue, His Lordship substantially reproduced the various arguments of the parties on the point when he said:[6]
That it is on this basis that it proceeded to apply the provisions of sections 96, 97, 98 & 99 of the Sheriffs and Civil Process Act, Caps 407, Laws of the Federation of Nigeria, 1990 (hereinafter called ‘the Act’) and came to its decision to the effect that leave was required, to issue and serve the writ of summons on the defendant/respondent.
Section 19(1) of the said Federal High Court Act and 228 of the Constitution of the Federal Republic of Nigeria, 1979, then applicable, are referred to and reproduced and it is submitted that there is only one Federal High Court established in the country which exercises jurisdiction throughout the country including Abuja. That the Federal High Court sitting in Lagos therefore, has jurisdiction over a defendant resident in Abuja. It is here the case of Abiola v FRN (supra) is cited and relied on.
It is in the above premise or circumstance that it is submitted that the provisions of Order 10 rule 14 of the Federal High Court (Civil Procedure) Rules, 1976 requiring leave to issue and serve a writ out of jurisdiction, will not and cannot apply in the particular case, particularly, when the service of the writ in question, was effected at Abuja within the jurisdiction of the Federal High Court.
It is finally submitted that both the issuance and service of the said writ of summons on the respondent in the circumstance, was good and proper in law and should not have been set aside.
In stating the law on the point, the distinguished Justice of the Supreme Court, after considering some previous cases, pronounced thus:[7]
Without much ado, I agree with the submission of the respondent that the appellant, having admitted that it never complied with the mandatory requirement of the law as regards issuance and service of the writ of summons outside Lagos, it cannot avoid or escape from the consequences of such non-compliance merely by submitting that the law does not apply.
Firstly, as to how rules of court are treated, it is now firmly settled that Rules of Court are not mere rules, but they partake of the nature of subsidiary legislations by virtue of section 18(1) of the Interpretation Act and therefore, have the force of law.
Secondly, and this is also settled, issuance of civil process and service of the same, are distinct though inter-related steps in civil litigation. A writ may be valid while its service (as in the instant case leading to this appeal) may suffer from some defect. See the case of Adegoke Motors Ltd v Dr. Adesanya & Or (1989) 3 NWLR (pt.109) 250 at 292-296; (1989) 5 SCNJ 80. This is why and this is also settled that where a writ of summons, has been regularly issued without compliance with the Act, which is void, and to be set aside, is the service and not the writ itself. See Nwabueze & Or v Obi-Okoye (infra).
The appellant in his said brief, having conceded that no leave of court was sought and obtained for the service on the respondent, of the said writ of summons in spite of the mandatory provisions of Order 10 rule 14 of the Federal High Court (Civil Procedure) Rules, 1976, this should have been the end of this appeal. What is more, as rightly submitted in the respondent’s brief, neither section 19 of the Federal High Court Act, nor any other Act, expressly or otherwise, excluded the operation of the Act and Order 10 Rule 14 of the Federal High Court (Civil Procedure) Rules. The provisions of the Act guide the service of the processes of the Federal High Court as a court established by the National Assembly. See the case of Union Beverages Ltd v Adamite Co Ltd (1990) 7 NWLR (pt.162) 348 C.A. Service of a writ out of jurisdiction, is not a matter of the court’s discretion. Not only is it provided for in the said rules of the Federal High Court which provision, must therefore, be obeyed, it is crucial to the prosecution of an action in the court. This is why, without proper service, it follows without more that no valid appearance can be entered by the defendant, although a defendant is entitled to and can enter an appearance on protest or a conditional appearance.
Then His Lordship continues:
I note that even the issuance of the said writ of summons which was not endorsed for service of the defendant outside jurisdiction was rightly declared by the learned trial judge, as void. This is because of the mandatory nature of the provisions of section 97 of the Act which provides as follows:
Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)-
This summons (or as the case may be) is to be served out of………..State (or as the case may be)…………………..and in the ………………………..State (or as the case may be)
The court continues:
In the case of Bello v National Bank of Nigeria Ltd (1992) 6 NWLR (Pt. 246) 206 at 217-218 C.A referred to at page 78 of the records, Achike, JCA (as he then was and of blessed memory) stated inter alia as follows:
It is clear that the provisions of section 97 of the Sheriffs and Civil Process Act, are couched in mandatory terms. Any service of a writ without the proper endorsement as stipulated under section 97 is not a mere irregularity but is a fundamental defect that renders the writ incompetent.
See also the case of Nwabueze & Or v Justice Obi-Okoye (1988) 4 NWLT (pt.91) 664 (it is also reported in (1988) 10-11) SCNJ 60 also referred to, by the learned trial judge where it was held inter alia, as follows:
…….A condition precedent for the issue of the writ of summons against the defendant in this case, who are resident outside the area of territorial jurisdiction of the High Court of Anambra State and who, again, does not carry on business within that area of jurisdiction that leave of court is to be obtained before the writ is issued – leave to issue writ which is to be served out of the jurisdiction is a not a matter of course and the application for leave is not a mere irregularity.
In the instant case, since leave was not first obtained before the writ was issued, the writ of summons has been issued without due process of law; and accordingly, has to be set aside for being null and void.
In other words, it was held that where a defendant is outside jurisdiction, no writ for service out of jurisdiction, can be issued except by leave of the court. That the issue of writ of summons and the service of the same on the defendant are conditions precedent, for the exercise of a court’s jurisdiction over the defendant.
The court below at page 190 of the record also referred to Nwabueze v Obi-Okoye (supra) and stated inter alia, as follows:
Having regard to what I have said above, the learned trial judge, in the proper exercise of her jurisdiction ought to have set aside the issuance and the service of the writ…I have somewhere in this judgment said service of the writ is very fundamental to assumption of jurisdiction by a court of law. If the service of the writ as in the instant case, is basically and fundamentally defective, at that point the court lacks jurisdiction to adjudicate anything done thereon is null and void.
The court therefore pronounced as follows:
The above is trite law which is long settled. In spite of the fact that the learned trial judge who eventually became Chief Judge of that court, stated what is the firmly established law and also a plethora of decided authorities some of them referred to in this judgment and the learned counsel for the appellant, in the court below, still insists that his own interpretation of the law, should and ought to be preferred even by this Court. Although he is entitled to his own views, but with respect, the law is so firmly settled, must prevail and in fact prevails and subsists.
Before concluding this issue, I will pause here to comment on the reliance by the appellant, on the case of Abiola v FRN (supra) The case with respect, as rightly pointed out in paragraph 1.14 of the respondent’s brief did not at all deal with the issue of service of process of the court outside the State where the court is sitting or with jurisdiction. It dealt with the question of whether the Federal High Court has jurisdiction to try an offence committed outside the State where the court is sitting. So I do not see with respect, the relevance of the case to the instant case leading to this appeal.
It is trite that where a court finds out and holds that an action is incompetent, null and void or that it has no jurisdiction to entertain it, it does not dismiss the action, but merely strikes it out.
We have decided to quote vastly as above to drive home the point herein articulated. From the above pronouncement of the Supreme Court the following conclusions can be made:
- A person is outside jurisdiction of the Federal High Court where he resides in a division different from where the processes are issued.
- Leave of the Federal High Court is required to issue a writ or such originating process where the defendant is to be served outside the State where the court in whose registry the process is issued sits.
- Abiola v FRN did not decide territorial jurisdiction of the Federal High Court but merely on jurisdiction of the Federal High Court to try offence committed outside the State where the court sits.
- The writ of summons or such originating processes to be served outside where the Federal High Court sits must be endorsed in accordance with section 97 of the Act.
- A process that does not comply with section 97 of the Act is fundamentally defective, incompetent and therefore liable to be struck out.
We shall consider (a), (b) and (c) together under what constitutes territorial jurisdiction of the Federal High Court; and (d) and (e) by looking at the exact provisions of the Act.
3. What Constitutes Territorial Jurisdiction of The Federal High Court?
Generally, the Rules of courts provide for the need for leave to issue a process where it is to be served on a defendant outside the territorial jurisdiction of the court in whose registry the process is issued.[8] This is where the defendant resides or is to be served outside the territorial jurisdiction of the court. This does not really depend on the jurisdiction of the court to adjudicate on the cause of action (especially where the cause of action takes place within the territory over which the court has jurisdiction) as this is usually determined either by the rules of court, the enabling statute (statute creating the court) or the Constitution. Territorial jurisdiction has been defined to be jurisdiction over cases arising in or involving persons residing within a defined territory.[9]
Jurisdiction of court especially in a federal constitutional democracy may be limited in terms of territory. Consequently, the nation may be divided into regions or states like in Nigeria. In such cases, the regional courts or state courts have jurisdiction over causes of action occurring within the territory of the region or state.
Just as there are courts established for the states having their jurisdiction limited to or confined within the territory of the states, there are federal courts established under the Constitution[10] to exercise jurisdiction over causes of action falling within their statutory jurisdiction notwithstanding the location or residence of the parties. At the Federal level, we have the Supreme Court[11]; Court of Appeal[12]; Federal High Court;[13] Federal Industrial Court;[14] etc. These courts exercise jurisdiction on matters or appeals arising from matters involving parties notwithstanding their place of residence. Apart from the Supreme Court that sits at one location at the Federal Capital Territory, Abuja, the Court of Appeal, Federal High Court, and the National Industrial Court sit in different States. These sittings are sometimes referred to as divisions. They remain the same court. This is likened to a State High Court having different divisions within the territory of the state. All the various divisions do not have or exercise different jurisdiction. It is not a case of having similar jurisdiction. It is the same court.
Where a defendant resides outside the division of a State High Court, leave is not required for any of the State High Court process to be served on him. This is because so long as he resides within the territory of the State, the State High Court has territorial jurisdiction covering such a party.
We humbly submit that it is absurd to look at the territorial jurisdiction of the Federal High Court in terms of cause of action (as having jurisdiction covering the whole country no matter the State where the cause of action takes place or where the defendant resides or the offence is committed) on the one hand and at the same time denying the court of having territorial jurisdiction covering a defendant who resides outside the division where the process is issued. With the greatest respect, this amounts to approbating and reprobating at the same time. The Supreme Court, per Ogbuagu, JSC said:
The case with respect, as rightly pointed out in paragraph 1.14 of the respondent’s brief did not at all deal with the issue of service of process of the court outside the State where the court is sitting or with jurisdiction. It dealt with the question of whether the Federal High Court has jurisdiction to try an offence committed outside the State where the court is sitting.[15]
This we humbly submit cannot be very correct because the issue of service of process ‘outside jurisdiction’ is undoubtedly tied to issue of territorial jurisdiction of the Federal High Court which was the crux of the decision of the Court of Appeal in Abiola v FRN. Mohammed, JCA in Abiola v FRN was in fact considering the territorial jurisdiction of the Federal High Court as well as jurisdiction on the cause of action when he said:
This is because the Federal High Court in this country irrespective of where it sits in Lagos, Abuja or even Maidiguri in Borno State, the jurisdiction of the court is not restricted to any particular judicial Division of the Court but cuts across the entire Country. To this extent therefore it would be wrong in my view to talk of the jurisdiction of a Federal High Court in Lagos as distinct from the jurisdiction of the same Court in Abuja since it is one and the same court.[16]
What was submitted for determination was issue of the territorial jurisdiction[17] in connection with the trial of an offence that was allegedly committed in Lagos. If the Federal High Court in Lagos is the same as the Federal High Court in Abuja and that the divisions are merely for administrative convenience, it beats ones imagination why a defendant in a proceeding before the same Federal High Court should be taken as residing ‘outside jurisdiction’ just because the process is to be served on him in a State other than where it is issued. This is so because the Federal High Court can sit anywhere in the country. A matter can be transferred from one division to the other where the convenience of the court or that of the parties and the interest of injustice demand so.[18]
Moreso, if one Federal High Court is created by the Constitution for the country,[19] it is not open to argument to hold the view that its jurisdiction covers the whole country notwithstanding the residence or address for service of the parties within the territory of Nigeria and the division where the action is commenced. One can therefore not understand the rationale for the Honourable Justice in the leading judgment holding:[20]
I note that in paragraph 4.1 at page 3 of the appellant’s brief, it is conceded that it is not in dispute that the writ of summons was issued at the Federal High Court Registry, Lagos and was served on the respondent in Abuja – a place outside the jurisdiction of the Federal High Court sitting in Lagos, without the prior leave of the trial court being sought and obtained by the appellant.
This merely reinforced the apparently wrong position of the lower court when it earlier held:
From the endorsement in the summons for service, it is not in dispute that the 2nd defendant has its address for service at plot 452, Tafawa Balewa Way, Area 3 Garki, Abuja, a place outside the jurisdiction of the Federal High Court sitting in Lagos.”[21]
We also humbly submit that it was wrong for the court to rely on Nwabueze & Ors v Obi-Okoye to hold that leave was mandatory in the instant case. Nwabueze & Ors v Obi-Okoye is both unhelpful and distinguishable from the instant case. This is because Nwabueze & Ors v Obi-Okoye dealt with a matter that was before Anambra State High Court having a defendant residing or having a place of business outside the territorial jurisdiction of the Anambra State High Court. It was a suit for libel filed at the Anambra State High Court. The defendant’s addresses for service as endorsed in the writ of summons was in Lagos State, outside the territorial jurisdiction of the Anambra State High Court. Pursuant to the relevant applicable Anambra State High Court Rules under which the case was decided, ‘outside jurisdiction’ was taken to be ‘outside Anambra State’. It was therefore mandatory for the plaintiff to have sought the leave of the Anambra State High Court for the issuance of the writ. The case would have been forceful and persuasive if the facts and circumstances were the same.[22]
The Courts were not the same or similar even though the provisions of their respective Rules were similar on requirement of leave to issue the writ of summons. Whilst the Federal High Court covers the whole country, Anambra State High Court covers only Anambra State.[23] Thus, while ‘outside jurisdiction’ under the Anambra State High Court Civil Procedure Rules was rightly interpreted to mean ‘outside Anambra State,’ under the Federal High Court (Civil Procedure) Rules applicable to the instant case, ‘outside jurisdiction’ can only mean ‘outside the country’ and certainly not ‘outside a judicial division’ of the Federal High Court.[24] This, perhaps, explains why the Federal High Court (Civil Procedure) Rules, 1999 and 2009 define ‘outside jurisdiction’ to be ‘outside the Federal Republic of Nigeria’[25] In fact, it will not be out of place to argue that the rules of the Federal High Court defining ‘outside jurisdiction’ to mean ‘outside the Federal Republic of Nigeria’ merely reinforce the position of the Constitution and the Act[26] establishing the Federal High Court and that without such provisions in the rules, the position would not be different.
Similarly, the Supreme Court also relied on the judgment of Achike, JCA (as he then was and of blessed memory) in Bello v N.B.N.[27] It is equally submitted that this case is most unhelpful in resolving whether or not leave of court is required in the circumstances of the instant case. In Bello v N.B.N[28] a suit was commenced at the Kaduna State High Court and processes served on the defendant, a company, in Kaduna (though its registered or head office was alleged to be in Lagos) without leave of court. Though the trial court, relying on the oral submission of the defendant’s counsel, struck out the case as its writ of summons was issued without leave, the Court of Appeal, per Achike, JCA (as he then was and of blessed memory) held that the issuance and service of the process was proper as the defendant was served within the territorial jurisdiction of the Kaduna State High Court and that leave of the court was not necessary. The Learned Justice also held that though the provisions of section 97 of the Sheriffs and Civil Process Act requiring endorsement of the fact of where the writ or process is issued and to be served were couched in a mandatory terms, they were not applicable to the instant case as the defendant was served in Kaduna within the jurisdiction of the Kaduna State High Court.
We submit that both cases relied upon by Ogbuagu, JSC in his leading judgment are apparently inapplicable to the instant case. None of the cases established that the Federal High Court has limited jurisdiction in terms of the judicial divisions which appears to be the position taken in that decision.[29] In fact Achike, JCA (as he then was and of blessed memory) in Bello v N.B.N,[30] held the contrary. No leave is required where the defendant is served within the jurisdiction of the court. In the instant case, the defendant who was served in Abuja a process of the Federal High Court issued in Lagos ought and must be taken to be within the jurisdiction of the court. The jurisdiction of the Federal High Court is not and cannot be rightly described in terms of divisions or locality unless there is specific statutory limitation as shown in section 46(1) of the Constitution.
We humbly submit that there is no such statutory limitation either under the Constitution or the Federal High Court on issuance of writ of summons to justify the pronouncement of the Supreme Court under consideration.
4. Consideration of Sections 96 and 97 of the Act
Sections 96 provides:
- A writ of summons issued out of or requiring the defendant to appear at any court of a State or the Capital Territory may be served on the defendant in any other State or the Capital Territory
- Such service may, subject to any rules of court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital territory in which the writ was issued
Also section 97 provides:
Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)-
“This summons (or as the case may be) is to be served out of………..State (or as the case may be)……………..and in the …………………………State (or as the case may be)
It is submitted that the defining words in the above sections 96 and 97 are: ‘any court of a State or the Capital Territory’ and ‘in addition to any other endorsement or notice required by the law of such State or the Capital Territory.’
It is true that the interpretation section in section 95 defines ‘court’ to mean ‘any court to which parts iii, iv, v, and vi apply.’ It must be accepted that not all the courts whose judgments are referred to in parts iii, iv, v and vi are courts whose processes must comply with sections 96 and 97 of the Act where the defendant is to be served outside the State or Federal Capital Territory, Abuja where the process is issued. It is ridiculous to take a strict application of the interpretation of ‘court’ in section 95 to apply to all courts referred to in Parts iii, iv, v, and vi of the Act. This would make a Notice of Appeal filed at the Court of Appeal or the Supreme Court or an election petition on the office of the President or Vice President filed at the Court of Appeal to also require such endorsement as required in section 97 of the Act.[31] This is absurd and could not have been the intention of the legislature.
It is our view that the ‘courts’ referred to in sections 96 and 97 of the Act are certainly either the State Courts or Courts of the Federal Capital Territory. If the legislature had intended the court referred to in the above sections to be any court as defined in the interpretation section of this Part of the Act, there would not have been need for the qualifications introduced in terms of: ‘any court of a State or the Capital Territory’ and ‘in addition to any other endorsement or notice required by the law of such State or the Capital Territory’
There is no and should be no ambiguity arising from the above provisions. Court of a State cannot by any stretch of the word include Federal High Court which is certainly not a State Court. The Federal High Court is a federal court just like the Supreme Court, Court of Appeal, and other federal judicial institutions established either by the Constitution of the Federal Republic of Nigeria or by the Act of the National Assembly. The only exception is that the courts of the Federal Capital Territory are given status of State courts by the Constitution itself[32]. It must be noted that ‘any court of a State’ is different from ‘any court in a State’. The Federal High Court can be a court in a State but it is certainly not a court of a State.
Similarly, the endorsement required in section 97 is in addition to any other endorsement or notice required by the law of such State or the Capital Territory. The law of such State unambiguously refers to State legislation and not Federal legislations.[33] The laws applicable to the Federal High Court are not State legislations but Federal laws.
It is abundantly clear that the courts intended by the legislature in sections 96 and 97 of the Act are only State Courts or Courts of the Federal Capital Territory, Abuja and not federal courts like the Supreme Court, Court of Appeal and the Federal High Court.[34]
5. Conclusion
It is humbly submitted that the issue of leave to issue a writ of summons or other originating processes where the defendant is to be served in a State outside the State where the Federal High Court sits needs to be revisited. Similarly, it is urged that the requirement of endorsement as required in section 97 of the Sheriffs and Civil Process Act is inapplicable to the processes of the Federal High Court. The Supreme Court should in another appropriate case revisit the position taken in Owners of the Mv ‘Arabella’ v NAIC (2008)[35] just as it did in revising its earlier position on the jurisdiction of the State High Court on issue of customary right of occupancy and other instances. Such effort will ensure certainty of the law on the point and truly reflect the true position of the law on the point.
[1] Mohammed, JCA in Abiola v Federal Republic of Nigeria, [1995] 3 NWLR (Pt.382) 203 at 234, Para B-D
[2] (2008) 11 NWLR (Pt. 1097) 182
[3] Cap 86, Vol 14, Laws of the Federation of Nigeria (LFN), 2004.
[4] Owners of the Mv ‘Arabella’ v NAIC, above note 2 at pp. 204 -209 paras D-E. He is quoted in extenso for fuller understanding and for our consideration.
[5] Id., at p. 204, para D-H.
[6] Id., at p. 204 para H, p. 205 para A-E.
[7] See Id., at p. 205 paras F-H, p. 206 para A-H, and p. 207 paras A-H, p. 208 paras A-H, p. 209 paras A-E.
[8] Whilst some Court Rules regard ‘outside jurisdiction’ to be ‘outside the State’ (See for example Order 4 Rule 6 High Court of the Federal Capital territory, Abuja (Civil Procedure) Rules, 2004), others regard ‘outside jurisdiction’ to be ‘outside the country’ such as High Court of Lagos State (Civil Procedure) Rules, 2004; High Court Civil Procedure Rules, Anambra State, 2006; High Court Rules of Enugu State, 2006. In the later cases, leave is only required where the process is to be served on a defendant outside the country.
[9] Black’s Law Dictionary, (7th Edition), (St. Paul Minn: West Group, 1999), p. 857.
[10] This has been the case since the 1963; 1979 and the current 1999 Constitutions of the Federal Republic of Nigeria.
[11] S. 230, Constitution of the Federal Republic of Nigeria (1999 Constitution), 1999.
[12] S.237, 1999 Constitution.
[13] S. 249, 1999 Constitution.
[14] S.7, Federal Industrial Court Act, 2006, now known as National Industrial Court, see 254(a), 1999 Constitution as amended by the Third Alteration Act, 2011.
[15] Referring to Abiola v FRN (1995) 3 NWLR (Pt.382) 203.
[16] Mohammed, JCA in Abiola v Federal Republic of Nigeria, [1995] 3 NWLR (pt.382) 203 at 234 Paras B-D. We admit that the Court now appeared to distinguish Abiola’s case when a similar submission was made in Ibori v FRN (2009) 3 NWLR (Pt.1128) 283 at p. 324 paras E-D per Oredola, JCA by stating that the decision in Abiola was taken because of the nature of the offence (treason) with which Abiola was charged as it has the nature of reverberating and resonating with damning effects all over the country. That decision was still on issue of the territorial jurisdiction of the Federal High Court.
[17] And not substantial jurisdiction of the Federal High Court to try the offence of treason.
[18] Order 2 rule 4, Federal High Court (Civil Procedure) Rules, 2009.
[19] S. 249, 1999 Constitution.
[20] Owners of the Mv ‘Arabella’ v NAIC, above note 2 at p. 204 paras E-F (underlining mine).
[21] Id., para H (underlining mine).
[22] Judgment of a court is not binding or of any persuasive effect where the facts or circumstances are not similar.
[23] The Supreme Court in several cases has upheld the oneness of the State High Court (that there is one State High Court within the territory of a given state having jurisdiction covering the whole state notwithstanding the judicial division). See Egbo v Agbara (1997) 1 SCNJ 97 at 107; Ukpai v Okoro (1983) 11 SC 231 at 264; Merchant Bank of Africa v Owoniboys Technical Services Ltd (1994) 8 NWLR (Pt.365) 705 at 715.
[24] Order 12 Rule 31, Federal High Court (Civil procedure)Rules, 1999 defined ‘outside jurisdiction’ to mean ‘outside the Federal Republic of Nigeria’. It is when the process is to be served on a defendant outside jurisdiction that leave of the court is required as provided in Order 5 rule 14, Federal High Court (Civil procedure) Rules, 1999.
[25] Order 12 Rule 31, Federal High Court (Civil procedure) Rules, 1999; Order 6 Rule 31 Federal High Court (Civil procedure)Rules, 2009.
[26] S.19(1), Federal High Court Act, Cap F12, Laws of the Federation of Nigeria, 2004.
[27] (1992) 6 NWLR (Pt. 246) 206.
[28] Ibid.
[29] We admit there are instances where the jurisdiction of the Federal High Court is limited in terms of the judicial division, by specific provisions of either the Constitution of the Federal of Nigeria or the Act establishing the Court or the Rules of the Court. One of such statutory limitation is under section 46(1) of the Constitution that provides for the enforcement of the Fundamental Rights recognized under chapter 4 of the Constitution, where the application is made to the Federal High Court, the application must be made at the Federal High Court in the State where the breach or threat of breach occurs. This is what the Constitution stipulates-See Tukur v Gov. Gongola State (1989) 4 NWLR (Pt. 117) 517. Similarly, the Court of Appeal in Ibori v FRN (2009) 3 NWLR (Pt.1128) 283 held that in criminal trials at the Federal High Court, it should be at the Federal High Court of the State where the offence was committed on grounds of forum non convenience. We submit that this position is also reinforced by section 45(a) of the Federal High Court Act. These are clear statutory limitations. These instances do not however justify the requirement of leave to issue writ of summons just because the defendant resides outside the judicial division of the Federal High Court registry where it is issued.
[30] (1992) 6 NWLR (Pt.246) 206.
[31] This is so because though proceedings at the Court of Appeal and Supreme Court are not generally commenced by writ of summons (though action involving the original jurisdiction of the Supreme Court can be commenced by statement of claim and when so commenced, a summons which is like writ of summons is issued-see, Form 1, Order 3 Rule 2(2), 3,4 and 5, Supreme Court Rules, 1985, section 95 defines writ of summons to include any writ or process by which a suit is commenced or of which the object is to require the appearance of any person against whom relief is sought in a suit or who is interested in resisting such relief. This brings Notice of Appeal or Election petition within the meaning of Writ of Summons referred to in the Act.
[32] Sections 299 and 301 of the 1999 Constitution.
[33] With the exceptions of laws made for courts of the Federal Capital Territory, which, though federal legislations, apply as if they are laws made by a State, for the purpose of the Constitution, the Federal Capital Territory, Abuja is treated as a State.
[34] Notwithstanding the interpretation of court in section 95 of the Act.
[35] Above note 2.