Alhaji Arasi Suberu & Anor V. African Continental Bank & Ors (2002)
LawGlobal-Hub Lead Judgment Report
DALHATU ADAMU, J.C.A.
This is an interlocutory appeal against the decision of the High Court of Justice, Ibadan refusing to grant Leave to issue a Concurrent Writ for Service outside Jurisdiction. The Plaintiff/Appellant applied for a writ of summons against the 3rd Defendant/Respondent for service within jurisdiction and two Concurrent writs of summons against the 1st and 2nd Defendants/Respondents for service outside the jurisdiction of the Court.
The original writ against the 3rd Defendant/Respondent was issued on 4/4/89 and served on him. The bailiffs however mistakenly also proceeded to serve the 1st and 2nd Defendants/Respondents before leave to issue and serve the concurrent writs outside jurisdiction was obtained. For ease of reference, the Plaintiff/Appellants will hereinafter be referred to simply as Appellants while the Defendants/Respondents will also be simply referred to as Respondents in this judgment. All the three Respondents entered conditional appearance at the trial court and in response to the writs served them. The 1st and 2nd Respondents also made or filed a notice of preliminary objection on the grounds that leave was not obtained before serving them outside jurisdiction. Before the preliminary objection was heard, the 1st Appellants applied for leave to issue and serve two concurrent writs on the 1st and 2nd Respondents in Lagos outside the jurisdiction of the trial court. This Application was granted on 5/12/98 and the Registrar of the trial court issued two Concurrent writs for service on 1st and 2nd Respondents outside jurisdiction on the same date.
On 2/5/90, the 1st and 2nd Respondents filed a formal application to set aside the Concurrent writs of Summons dated 4/4/89 on the ground that no leave was obtained before the issuance and service of the said Concurrent writs on them. On 15/12/90, the learned Judge of the trial court, Oluborode J (as he then was) gave a considered Ruling and held inter alia that the Concurrent writs served on them without leave was invalid. The said concurrent writs were therefore set aside. However, the concurrent writs issued on 5/12/89 with leave to serve the 1st and 2nd Respondents were refilled and their lifetime extended on 11/2/91.
They were then served afresh on the 1st, 2nd and 3rd Respondents.
Upon this second service, the 1st and 2nd Respondents again entered a conditional appearance while the 3rd Respondent filed a notice of preliminary objection against the issuance and service of the refiled or revived concurrent writs on them, their objections were dismissed by Aderemi J. (as he then was) on 26/3/93. Thereafter the Appellant served an amended statement of claim on all the three Respondents who also in response applied for extension of time to file their respective statements of defence. Subsequently on 17/5/94 and 2/5/97 the Respondents again challenged (or re-challenged) the issuance and service of the concurrent writs on them even though with leave on the ground that the leave obtained for the concurrent writs of 5/12/89 could not cure the invalidity of the original writs of 4/4/89. This time the learned Judge of the High Court (Adeniran J.) upheld the Respondents’ objection or challenge against the issuance and service of the concurrent writs (even though with leave) on the 1st and 2nd Respondents. The said writs were consequently declared invalid and set aside. After this Ruling which was delivered on 3/4/98, the Appellant’s counsel made another fresh application for leave to issue another writ (or concurrent writs ) but on 3/7/98 the learned Judge again refused the application on grounds similar to those in his earlier Ruling, of 3/4/98. The present appeal is against the two rulings of the learned trial Judge (i.e. on 3/4/98 and 3/7/98) setting aside the concurrent writs issued and served with leave on 15/12/89 and refusing the appellant’s application to issue fresh writs .
In their two notices of appeal, the Appellants all-together filed four grounds of appeal (3 in the first notice and one in the second notice). From their four Grounds of appeal, the Appellants have, in their brief of arguments, filed on 18/9/2001 which was adopted in accordance with the rules of this court, formulated the following two Issues for determination: –
“1. Whether or not the learned trial Judge misdirected himself (sic) on the interpretation of the Ruling of Oluborode J. invalidation (sic) the concurrent writs of Summons dated 4/4/89 and also misconceived the nature of the Application of the Respondent and that of Concurrent Writ of Summons issued with leave on December 1989 and thereby came to a wrong conclusion that the two writs are the same and that the latter (sic) could not be re-issued. (Underlining supplied in the brief).
- Whether or not the learned trial Judge exceeded his jurisdiction by entertaining and deciding the objections of the Respondents, when the same point had been raised by them and decided against them by his learned brother Aderemi, J. (as he then was of coordinate jurisdiction.”
In the Respondents’ brief filed on 28/11/2001 which was also adopted in accordance with the rules of this court, two issues are also framed which in my view correspond with and are the same with the Appellant’s issues. The two issues formulated in the Respondents’ brief are as follows:-
“1. Whether any writ of summons original or concurrent has been issued with leave of court before 4th April, 1989 and/or after the invalidation of the writ of summons dated 4th April, 1989 by Oluborode J. in a considered Ruling dated 5th December, 1990 (page 9 of the Records):
- Whether the learned trial judge was not right to have held that the Writ of Summons issued and served on the 1st and 2nd Defendants remain invalid and service on them remain set aside having said so in his Rulings dated 3/4/2001 and 3/7/2001”.
As the Appellant’s Brief has properly related or tied their two issues to the grounds of appeal, I will rely and adopt the Appellant’s issues in this judgment. Under issue one of the said Appellant’s brief, it is contended that the issue before Oluborode J., was the validity of the concurrent writ dated 4/4/89 issued and served on the 1st and 2nd Respondents without leave to issue and serve it outside the jurisdiction of the trial court. Thus the learned Judge rightly held the issuance and service of the said Concurrent Writ on the 1st and 2nd Respondents as invalid and accordingly set it aside. It is submitted that the ruling has become spent after its delivery and it cannot affect any other Writ issued before or after the said Ruling. Thus it is further submitted in the brief that the reasons given in the ruling of Adeniran J on 3/4/98 to the effect that the writ of summons subsequently issued and served on the 1st and 2nd Respondent subsequent to the ruling of 5/12/90 remained invalid and erroneous because the concurrent writs subsequently issued and served on the said Respondents with leave are separate and different from the one earlier set aside for being issued without leave. It is explained that the concurrent writs which had lapsed, were not and could not have been revived or reissued. By the ruling of Oluborode J. of 5/12/90 setting aside the irregularly issued writs, the said writs were rendered in law as if they were never issued and as such they cannot affect the subsequent writ taken or issued with leave – See MCJOY V. U.A.C. LTD. (1962) AC 152 cited in support of the submission – See also page 38 of the record where it is averred in the Appellant’s counter affidavit that the writs issued or re-issued with leave on 5/12/89 and with their life extended to 11/12/91, were not the same with those earlier declared a nullity for their irregularity. Reference is also made in the brief to the ruling of Aderemi J. (as he then was) dated 26/3/93 when dealing with the subsequent writs wherein he stated that he would not ignore the fact that the prerequisite leave was obtained on 5/12/89. The brief also refers to Order 5 Rule 13 of the High Court (Civil Procedure Rules) 1988 of Oyo State which governs the issuance and service of writs of summons and concurrent writs and is applicable to the present case. The relevant provisions of the rules (Supra), rule 13(1) (2) and (3) are reproduced in the brief. It is submitted that since by its definition, under rule 13(3) a “concurrent” writ is a true copy of the “original” writ, it follows that copies thereof may be issued or re-issued at any time before the original one ceases to be valid. Consequently, it is argued, it is only where the original writ is declared null and void by the court and its service set aside, that it cannot be re-issued. It is contended that in the circumstances of the present case the original writ could validly be re-issued. Finally, this court is urged under issue 1 of the Appellant’s brief to hold that the concurrent writ of summons issued on 5/12/89 with leave and served on the 1st and 2nd Respondents (as amended) were properly and validly issued and served on the said 1st and 2nd Respondents and the interpretation given to the ruling of Oluborode J. by the learned trial Judge in considering the Application before him (to set aside the said concurrent writs), is erroneous.
In the Respondents’ brief under issue one, it is submitted that there is a misconception by the Appellant as to the effect of the ruling of Oluborode J. The said ruling and the proceedings leading to it (as recorded on pages 22-23 of the record) is reproduced in extense in the brief. It is then submitted that the Appellant’s argument to the effect that after the ruling of Ouborode J. had become spent and that any other writ issued before or after the said ruling will not be affected by the ruling is misconceived because a writ can only be validly issued in accordance with the rules of court. It is also trite that a writ for service outside jurisdiction can only be validly issued with the leave of court – See order 5 rules 14 and 15 of the High Court (Civil Procedure) Rules 1988 of Oyo State. MOBIL OIL NIGERIA LTD, V. AJAIYA (1964) LLR 60; AND ODUA INVESTMENT CO, LTD, V. TALABI (1991) 1 NWLR (PT.170) 761, cited in the brief, in support of the submission. It is contended that the earlier Ruling or order of the Registrars Court made on 5/12/89 which validated the Concurrent Writ (with leave) given a year before the Ruling of Oluborode J. on 5/12/90 cannot validly and legally vary or be affected by Oluborode’s Ruling which was made a year after it. It is also pointed out that the application for leave which led to the order of 5/12/89 did not bear the suit number of the existing Writ but bore a different number as if it were a fresh or new suit being instituted by the Appellant. Thus it had a new suit No as M/141/89 instead of the original suit No. which was 1/233/89. Reference is also made to some paragraphs of the affidavit in support of the Appellant’s motion for leave to appeal which also show that it was an entirely new suit being instituted by the said Appellants (see paragraphs 3-8 thereof at pages 5-6 of the records).
It is also contended that after Oluborode’s ruling the Appellants rather than instituting a new suit and paying new fees, did not do so but relied upon and used the same processes and fees used on 4/4/89 which had been declared invalid by Oluborode J’s ruling. It is pointed out that the ruling of Oluborode J which should be treated in the same way as a judgment subsits and once pronounced its validity remains until it is set aside on an appeal.
-See MOBIL OIL V. COKER (1975) 3 SC 175; ADEOSUN V. BABALOLA (1972) SC 292 AT 300; WILLIAMS V. SANUSI (1961)1 ALL NLR 334 AT 337; ROSSELI V. ACB LTD (1993) 9 NWLR (PT. 312)382; CHUCKS V. CREMER (1846) 47 ER 884; OBA OLADEGBEMI V. OBA ALADESANMI (198)3 NWLR (PT .81) 129 AND HADKINSON V. HADKINSON (1952)2 ALL ER 567. Cited in support of the proposition. The celebrated case of Nwabueze V. Okoye (Supra) is repeated in the brief on the principle that a writ of summons for service outside the jurisdiction of the trial court issued without the required leave is null and void. Finally the Respondents Brief urges this court to dismiss the appeal under issue one from the above submissions and arguments under issue one, the bone of contention is on the issuance and service of the concurrent writ of summons dated (or issued) on 4/4/89. It is a common ground or factor in the two briefs that the said Writ issued on 4/4/89 with two concurrent writs for service outside the jurisdiction of the trial court was a nullity for being issued without the leave of the court as was rightly held by the trial court (per Oluborode J as he then was) in its Ruling of 5/12/90 (see page 22 of the record). It is however pertinent to observe that in the said ruling, the trial court only declared as a nullity and set aside the concurrent writs served on the 1st and 2nd Respondents who were served or to be served outside its jurisdiction. As regards the 3rd Respondent, whose address was within the jurisdiction of the trial court the issuance and service on him were regular. It is only the issuance and service of the concurrent writs on the 1st and 2nd Respondents which were without the required leave of the trial court that were set aside by the ruling of 5/12/90.
For a better appreciation of my view it is necessary to define what an “original” Writ and a “concurrent writ of summons. The distinction between the two terms is given (or can be implied from order 5 rule 13(1) of the Oyo State High Court (Civil Procedure) Rules, 1988 in the following words:-
“13(1) one or more concurrent writs may, at the request of the Plaintiff, be issued at the time when the original writ is issued or at any time thereafter before the original writ ceases to be valid”.
From the above provision, the original writ is the original copy writ prepared and sealed by the registrar while the concurrent writ or writs is or are copies (or exact replica) (e.g. Photostat or cyclostyled) made or produced from the original writ for purposes of service where more than one Defendant is involved.
The purpose of making or taking a concurrent writ is for service on another Defendant or other Defendants whose particulars, (e.g. names, addresses) are different from the first person (Defendant) mentioned in the writ or against whom the Plaintiff is claiming different reliefs. Part of the ruling of Oluborode J of 5/12/90 which support my view and where the distinction between the two types of writs is made (at Page 23 of the record) reads:
“In the meantime, it is only the Writ served on the applicants outside the jurisdiction without leave that was being attacked and which the parties had described as being invalid… The Writ as a Concurrent Writ the original of which was served on the 3rd applicant within jurisdiction cannot be said to be irregular against him”.
The question that immediately arises from the above distinction or definition of the two types of Writs is whether the irregularity or nullity of the concurrent writ would necessarily affect the original one. The simple answer to this question should, in my humble view, be in an affirmative. From the above definition of the two terms in order 5 r. 13(1) supra a concurrent writ is only a copy of the original Writ and they are both, taken or issued in the same proceedings. They only bear different (descriptive) names for the purpose of service and as per their endorsement by the registry on their particulars mutatis mutandis in order to effectively give notice to each Defendant of the Plaintiff’s claim against him. Consequently where the original writ is admitted to be irregularly issued or without compliance with the statutory provision or the rules of court as in the present case, such irregularity defect or non compliance must also affect the concurrent writ(s) issued in the same proceedings and vice versa (i.e. defect of the concurrent writ must also affect the original writ).
The relevant rule making it mandatory to seek for and obtain leave before the issuance of a writ (or any writ) whether original or concurrent for service outside the jurisdiction of the trial court makes a very clear provision in this regard. It is provided in order 5 rule 6 of the Oyo State High Court (civil procedure) Rules (supra) as follows:
“Subject to the provision of these rules or of any Written law in force in the state, no writ of summons for service out of the jurisdiction or of which notice is to be given out of the jurisdiction, shall be issued without the leave of the court or a judge in chambers” (underlined word is supplied for emphasis).
From the above wordings of the rule (particularly the underlined word), it is clear that the mandatory prohibition in the phrase”…no writ of summons…shall be issued” seeks to prohibit the issuance rather than the service of the Writ without leave of court. It is important to note that in the initial process of commencement of an action or suit under our adversary system, a writ has to be issued first by the registry or registrar who will seal and endorse it as appropriate before it can be served on the Defendant(s). See OGBUANYINYA AND ORS V. OKUDO AND ORS (1990) 4 NWLR (PT. 146)587.
There is therefore a clear distinction between the issuance and service of a writ. Thus a writ regularly issued may be irregularly served or not even served at all and it will remain valid even after its statutory lifespan of 12 months during or after which it can be revived or renewed on application showing good cause. – See IDOWU V. BAMIJOKO (1996) 7 NWLR (PT.461) 496; AND KOLAWOLE V. ALBERTO (1989) ALL NLR 137. On the other hand service of a writ as well as other court processes on the Defendant is a fundamental requirement of justice the failure of which affects or robs the court of its jurisdiction and competence to adjudicate on the said Defendant (or any party) not served. In other words service of court process on a party to be affected by such process is a condition precedent to the exercise of the court’s jurisdiction over that party – See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; ODUA INVESTMENT CO, LTD., V. TALABI (1997)10 NWLR (PT.523)10. Consequently where a party is not served, the court has no jurisdiction to adjudicate over him. Where however as in the present case there was actual service of the writ but the said writ was irregularly issued for non compliance with the rules of court (as to the requirement of leave to issue and serve outside jurisdiction) such can be treated as an irregularity which can render the process voidable at the instance of the affected party who can take steps to set it aside. In such a situation it can be said that since there was actual service on the party affected, the irregularity does not affect the competence or jurisdiction of the trial court. – See ODUA INVESTMENT CO, LTD, V. TALABI (Supra); NWABUEZE V. OKOYE (1998)4 NWLR (Pt.91)664. In some cases, the Defendant rather than taking steps to set aside the irregularly served writ may decide or choose to waive it by entering into an unconditional appearance or filing of statement of defence or taking any other step(s) in the proceedings which can give rise to an inference of waiver – See NEPA V. ONAH (1997)1 NWLR (PT.484) 680; AND FMBN V. ADESOKAN (2000)11 NWLR (PT.677)108.
In applying the above rules on the issuance and service of the writ of summons to the facts and circumstance of the present case, it is important to observe that before the ruling of Oluborode J of 5/12/90, and while the motion to strike out the earlier writ was pending the Appellant had in the interim applied for leave of the trial court to issue a writ of summons for service on the 1st and 2nd Respondents outside the jurisdiction of the court. This was an attempt by the said Appellant to regularise or rectify the defect in the earlier Writ issued on 4/4/89. This leave was granted by the Principal Registrar of the trial court on 5/12/89 (see page 9 of the record). This second writ which was issued with the leave of the court was after its expiry on 5/12/90 extended for another period of 12 months by the same judge (Oluborode J.) on 11/2/91 (see page 24 of the record). Although both the two application of the Appellant for leave to issue the new writ and for the extension of its lifespan were made ex parte, the 1st and 2nd Respondents were aware of the new writ (with leave) when it was served on them. However instead of appealing timeously against the re-issuance of the new writ (with leave) or the order of extension of its lifespan, they decided to wait until 18th January 1993 before bringing a preliminary objection against its issuance and service on them on the grounds that the earlier writ of 4/4/89 had been declared invalid which resulted in the present appeal. From the above resume of the facts and circumstances of the present case, it is clear that the Appellant on realising the defect in the issuance of the old writ of 4/4/89 which was not issued and served with leave of the court decided to abandon it and to regularise his position by taking out or issuing another writ with leave of the court which he did on 5/12/89. Thus he did not wait for the outcome of the notice of preliminary objection and the application to set aside the said writ filed by the Respondents who made a conditional appearance in protest against the said old writ (of 4/4/39). I agree with the assertion in the Appellants’ brief that the old writ having been set aside and declared a nullity by the trial court has abated and the position is as if no writ was issued at all. But the confusion in the present case was caused or created by the action of the said Appellant who did not wait until after the ruling on the preliminary objection of the Respondents before taking out or issuing in the interim another writ (with leave). This is why the ruling of Oluborode J. which did not spell out the date of the writ declared invalid and set aside, was regarded or treated by the Respondents as applying to both the old and the new writs. They may be right in this view but only on condition that the two writs related to the same proceedings in which case the new writ can be said to be based on the old one which was declared invalid and set aside by the court as “you cannot put something on nothing and expect it to stay” – MCFOY V. UAC LTD., (1962) AC 152 AT 160. Be that as it may, the position in the present case was different in that the Appellant had re-issued the writ and renewed it with the leave of the court.
The point raised by the Respondents in their brief that the suit was given a new number from the old one of 1/233/89 to a new one of M/141/89 shows that the Appellant was instituting a new suit or re-issuing a new writ in a new proceeding. In any case it is not asserted or proved by the Respondents that the Appellants did not pay the appropriate fees for filing a new suit or for re-issuing a new writ. On the contrary, the Appellants in their counter-affidavit against the Respondents’ motion to set aside the subsequently issued writ (issued with the leave of the court) have averred (as per their counter-affidavit that they had done all that was required by paying the filing fees for the issuance of the new writ of summons – See paragraph 13 of the counter-affidavit at page 39 of the records).
This averment was not controverted or countered by the Respondents by filing a further affidavit. It is therefore an uncontradicted or unchallenged affidavit evidence which the trial court ought to have accepted and relied upon unless its quality is not worthy of belief – See BABA V. NIGERIAN CIVIL AVIATION TRAINING CENTRE (1991) 5 NWLR (PT.192) 388; LSDPC V. NIGERIAN LAND AND SEA FOODS LTD. (1992)5 NWLR (PT.244)653; AND NZERIBE V. DAVE ENGINEERING CO, LTD. (1994) 8 NWLR (PT.361) 124.
If the learned trial judge had accepted the uncontroverted or uncontradicted averment in the Appellant’s counter-affidavit (Supra), I am sure he would have decided or held that the Appellant by or in taking out the new Writ were instituting a new suit or re-issuing a new writ for which they had paid the appropriate filing fees at the Registry of the trial court. At this stage I must refer to the ruling of Aderemi J (as he then was) at page 32 of the records wherein he stated rightly that he cannot shut his eyes from the fact that the prerequisite orders (for leave to issue and serve the writ out of jurisdiction) were obtained on 5/12/89 and that once the new writ was properly issued and the filing fees paid by the Appellant, it is then the duty or function of the officials of the court’s registry to give whatever number they choose or like to the new suit. Thus the giving of the new or different suit No as M/141/89 to the new suit would not affect the Appellant’s case since he had paid the required filing fees. Although the ruling of Aderemi J (as he then was) dated the 26th of March, 1993 was made on the preliminary objection of the 3rd Respondent, its result (i.e. the dismissal of the preliminary objection) must affect the 1st and 2nd Respondents who were made parties in the notice of the preliminary objection. They (i.e. 1st and 2nd Respondents) were also joined as Defendants in the second suit instituted by the Appellant and were served with the concurrent writs just like in the Appellant’s first suit. Again the Respondents did not appeal against the ruling of Aderemi J (as he then was) but decided to wait until 2/5/97 before bringing their motion for setting aside the writ of summons which resulted in the ruling of the trial court – the subject of this appeal.
What were they doing after the ruling of 26/3/93 (for about 4 years) before bringing their motion for setting aside the Writ? In the absence of any explanation; they are guilty of an inordinate delay in bringing the said application. I must also point out the fact that after the said ruling (of 26/3/93) the Respondents applied for extension of time to file their statement of defence against (or in answer to) the Appellant’s statement of claim which was endorsed in the new writ. Thus they have taken steps in the new proceedings. In this regard even if the second concurrent writ of summons issued with the required leave against the Respondents is regarded as irregular (which it was not) the said Respondents by their action in taking steps to defend the Appellants’ action had waived the irregularity they subsequently complained of which resulted in the two rulings of Adeniran J dated 3/4/98 and 3/7/98 respectively and which are the subject of the present appeal. The law is settled that even where a Plaintiff fails to obtain the leave of the court to issue and serve the writ of summons out of jurisdiction, the said writ and service thereof are liable to be set aside unless the Defendant had taken positive or fresh steps in the proceedings which will amount to a waiver of the irregularity complained of – See NWABUEZE V. OKOYE (SUPRA); NEPA V. ONAH (SUPRA); ODUA INVESTMENT CO. LTD. V. TALABI (SUPRA) AND AKINTUNDE V. OJO (2002)4 NWLR (PT.757)284 AT 304-305.
The Respondents in the present case are caught by the above rule or principle of waiver. They are also to be blamed for their inordinate delay in bringing their application to set aside the second writ (concurrent writ) issued by the Appellants after securing the required leave to issue and serve it outside the jurisdiction of the trial court. It must also be observed that by the attitude of the Respondents in the present case and in their dribbling tactics, they are invoking or relying on the technicality of the rules of court with a view to taking undue advantage over the Appellants and cause injustice to them by preventing them from pursuing or prosecuting their case (or claim) against them. It was a situation similar to that in KOLAWOLE V. ALBERTO (Supra) where the Supreme Court held (per Craig JSC (at page 146 of the report) as follows:
“Apart from this, a perusal of the whole Rule shows that it is not intended that one of the parties shall take advantage of a technical point … In my view this additional provision is to afford a Plaintiff who acts promptly and to do substantial justice between the parties.”
From the above dictum of the Supreme Court, it is settled that rules of court or rules of procedure are made for the convenience and orderly hearing of cases in court. They are made to help the cause of justice and aid the court. They are as such not to be regarded or treated as masters of the court. Therefore the court in applying the rules which are merely its aids should not be slavish to the said rules but should give or pay more regards to the interest of justice. Thus where the interest of justice requires, the court should be liberal in its application observance or compliance of the rules of court – See UTC (NIG) LTD. V. PAMOTEI (1989) 2 NWLR (PT.84) 508 AND SHELL PETROLEUM DEVELOPMENT AND 5 ORS V. NWANKA (2001) 10 NWLR (PT.720) 64 AT 79. In the present case if the Appellants are prevented from pursuing their remedy or action against the Respondents by reliance on the technical rules as done by the trial court. They would suffer from serious injustice as they would also be prevented from having recourse to or approaching the court for the ventilation or vindication of their rights against the Respondents. This would be a grave injustice to the said Appellants. Consequently, on my consideration of issue one, the said issue and its related grounds of appeal (grounds 1 and 2 of the first notice of appeal) must be resolved in favour of the Appellant and against the Respondent. I hereby so resolve it. Under issue two of the Appellants’ brief, the submissions are centred on the ruling of Aderemi J on the preliminary objection against the issuance of the new concurrent writs issued with leave of the court for service on the 1st and 2nd Respondents outside the jurisdiction of the court. It is pointed out in the brief that the learned judge after hearing the preliminary objection dismissed it on 26/3/93 – see page 33 of the record. It is contended that the said ruling was brought to the attention of the learned trial judge Adeniran J, who considered it in his ruling of 3/4/98 which is the subject of the present appeal. It is then submitted in the brief that the learned trial judge had no jurisdiction to sit on appeal on the decision of his learned brother Aderemi J. (as he then was) of coordinate jurisdiction – See APON V. OKAI (1973)12 SC 137 AT 145; AMANAMBU V. OKAFOR (1966)1 ALL NLR SC 210 AT 203; AND GAMBARI V. GAMBARI (1990) 5 NWLR (PT .152) 572 AT 588 cited in the Brief in support of the submission. It is pointed out that by the ruling of Aderemi J (as he then was) dismissing the preliminary objection against the new concurrent writ issued with leave, the Respondents were bound by that ruling and would not be allowed to re-open the question or issue of the validity of the concurrent writ before another judge (Adeniran J) of coordinate jurisdiction. Thus the trial judge (Adeniran J) should have struck out the Respondent’s second preliminary objection for want of jurisdiction. This court is finally urged, in the Appellants’ brief under the second issue to, hold that the learned trial judge had acted without jurisdiction or in excess of his jurisdiction by sitting over the same issue already decided by his brother of coordinate jurisdiction.
In reply to above submissions, the Respondents’ brief under issue 2 extensively refers to the ruling of Aderemi J (as he then was) at pages 31-33 of the record which is also reproduced in extenso in the brief. It is then submitted that a decision of a court or judge of coordinate jurisdiction is not binding on another court or judge of similar jurisdiction.
Consequently, it is argued that the learned trial was right to have relied on the ruling of Oluborode J. to the effect that no leave of the court was sought for or obtained before the concurrent writ was issued by the court – See GAMBARI V. GAMBARI (Supra). In the alternative, it is submitted in the Respondents Brief that Aderemi J (as he then was) was himself not vested with the power or jurisdiction to review the earlier Ruling of Oluborode J. (as he then was) as he apparently did in his Ruling of 26/3/93. The Brief relies on AMANAMBU V. OKAFOR (Supra), TIMI-TIMI V. AMABEBE (1953)14 WACA 374; AND OKON ODOFE & 2 ORS V. CHIEF AKPAN A SISUA & ORS (1973)1 SC 119 AT 128-129 for the proposition and finally urges this court to dismiss the Appellants’ appeal under the second issue.
On the above submissions in the two briefs under the second issue, I am inclined to accept the Appellants’ submissions over and in preference to those of the Respondents. This is because of the apparent misconception by the Respondent as to the unnecessary emphasis they applied towards the ruling of Aderemi J which they wrongly treated or regarded as a review on the earlier ruling of Oluborode J. relating to the concurrent writ issued without the prerequisite leave of the court on 4/4/89. They seem to “close their eye” to the fact that the Appellant who did not oppose the said ruling of Oluborode J had decided to abandon or disregard the concurrent writ which was set aside by Oluborode J who declared it null and void, and initiated a new suit or proceeding by issuing another and new Concurrent Writ with the required leave of the court on 5/12/89 which was then the subject of another attack by the Respondents (in their preliminary objection) before Aderemi J. (as he then was). Contrary to what the Respondents represent in their brief, Aderemi J did not sit on appeal to review the ruling of Oluborode J, he merely referred to it in his ruling in which he rightly stated that he could not close his eyes from the fact that the Appellant has (subsequent to the said ruling) issued another concurrent writ after securing the required leave for service outside the jurisdiction of the trial court. In my view, I think what caused the confusion and misconception on the part of the Respondents is because they were and still are personifying the ruling of the trial court in the names of individual judges who gave the said ruling they treated or regarded the two rulings of the trial court as those of the court rather than of the individual Judges who gave or made them they, would have appreciated the settled law that there is only one High Court in a state and it is different from the judges who preside it. There may be different judicial divisions in the same state but as far as the High Court of a state is concerned it remains only one. Thus the judges who sit in the same court may be different when they are changed or transferred but the court or its judicial divisions remain the same. Consequently a decision, judgment or ruling given made or delivered by a particular judge is that of the court rather than of the individual judge. – See section 253 of the Constitution of the Federal Republic of Nigeria, 1979 (which is re-enacted in Section 270(1) of the 1999 Constitution); ARI V. PAIKO (1997)10 NWLR (PT.524) 335; AT 350-351; SKENCONSULT (NIG) LTD. V. UKEY (1981)1 SC 6 AT 37-38; AND TIMI-TIMI & ORS V. AMABEBE & ANOR (Supra).
In the present case as rightly stated in the Appellants’ brief, the ruling of Oluborode, J. which related to the writ issued on 4/4/89 and against which the Appellants had no opposition (hence they did not appeal against it) had rendered the writ to which it related a nullity. Aderemi, J. (as he then was) who presided over the same court and was not sitting on appeal against the earlier ruling (of 4/4/89) but on a fresh notice of preliminary objection against a new writ (now issued with leave of court) was quite competent to hear the objection and to give his decision on it which is independent of the earlier ruling of the court on the old writ issued on 4/4/89 which had been abandoned by the Appellants, making the ruling on it as already spent. However the same cannot be said on the subsequent rulings of the trial court on 3/4/98 and 3/7/98 which were subsequently given or delivered by another judge of the same court namely Adediran, J. Those subsequent rulings which are the subject of the present appeal are clearly in sharp conflict with the earlier ruling of the same court (per Aderemi, J. as he then was). While the earlier ruling had dismissed the preliminary objection, the subsequent ones upheld the objection by setting aside the subsequent writ (issued with leave of the court) and refusing to grant leave to issue, the new concurrent writ of summons for service on the 1st and 2nd Respondents outside the jurisdiction of the trial court. Thus under the above principle, the same trial court (if the individual judges are ignored) will be seen to be approbating and reprobating in the same proceedings. The situation can also be regarded on one of the judges of the same trial court (i.e. Adediran, J) as sitting on appeal against the earlier decisions of his brother judge of the same court and with coordinate or concurrent jurisdiction. I agree with the Appellant’s submission that the second judge who made the subsequent rulings, the subject of this appeal (i.e. Adediran, J) lacked the required jurisdiction or competence to sit on an appeal over the earlier decision or ruling of his brother judge of coordinate jurisdiction in the same proceedings. A fortiorii such a judge has no power to make any subsequent decision or ruling in the same proceedings which is contrary to or in conflict with an earlier one made by the same court. It is trite that a court is not entitled to alter or change the effect of its ruling in the course of the same proceedings in favour of any party. When faced with such an application the second judge who is subsequently seized of the same application or a similar one having the same effect with the one earlier decided in the ruling of the same court and in the same proceedings should not revisit it as he has no competence or jurisdiction to review the earlier ruling of the same court. Rather he should refrain from doing so and in the end strike out the application or preliminary objection for lack of jurisdiction. – See ALH. AHMED & CO. (NIG) LTD. V. AIB LTD. (2001) 10 NWLR (PT.721) 391 AT 405; LAWAL V. DAUDU 1 ALL NLR 707. Thus the learned trial judges in the present case (Adeniran, J) wrongly assumed jurisdiction to review or revisit the issuance of a new concurrent writ on the Respondents (issued with leave of court to serve them outside the jurisdiction of the trial court) apparently acting under a mistake of law that he had the required jurisdiction which he lacked in the circumstances of the case. Consequently his decision in the two rulings given or made without the required jurisdiction only amount to a nullity – See MADUKOLA V. NKEMDILIM (1962) 2 SCNLR 341; SKENCONSULT V. UKEY (Supra); A & G FEDERATION V. SODE (1990)1 NWLR (PT. 128)500.
For my above considerations of issue two of the Appellants’ brief, the said issue and its related grounds of appeal (grounds 3) must also be resolved in favour of the Appellant and against the Respondents. It is accordingly so resolved by me. In the final result of my resolution of both the two issues in the present appeal in favour of the Appellant, his appeal has consequently succeeded and it is hereby allowed. The two rulings of the trial court (per Adeniran, J) dated on 3/4/98 and 3/7/98 respectively are hereby set aside. In their place, I hereby strike out the Respondent’s application dated 2/5/97 (at pages 35-36 of the records). I also hereby order that the parties must revert to the concurrent writs issued with the leave of the Registrars of court on 5/12/89 for service on all the Respondents including the 1st and 2nd Respondents whose addresses are given in the motion ex parte filed on 1/11/89 in Lagos outside the jurisdiction of the trial court as contained in the said motion paper (at page 4 of the records). I assess the costs of this appeal at N10,000.00 which I hereby award in favour of the Appellants and against the Respondents.
Other Citations: 2002)LCN/1181(CA)
