Ben Obi Nwabueze & Anor V. Justice Obi Okoye (1988)

LawGlobal-Hub Lead Judgment Report

G. O. AGBAJE, J.S.C. 

In the High Court of Justice of Anambra State of Nigeria. in the Enugu Judicial Division. Justice Obi-Okoye, as plaintiff, sued Ben Obi Nwabueze and Longman Nigeria Ltd., as defendants. claiming against them as follows as per the indorsements on the plaintiff’s writ of summons

“In chapter 18 and particularly at pages 438 to 440 of the book entitled “Nigeria’s Presidential Constitution 1979 – 1983″ written by the first defendant and published for him by the second defendant, the defendants falsely and maliciously published of and concerning the plaintiff words which in their ordinary and natural meanings are calculated to disparage the reputation of the plaintiff, hold him to contempt and ridicule, and lower him in the estimation of right thinking members of society generally. The said publication which was in connection with the election petition (suit No. HJ/127/83 John Kadiya v. Solomon Lar & Ors.) tried by the plaintiff is full of incorrect or distorted facts. (Full of the libel will be set out in the statement of claim).

The book which the defendants printed in thousands and sold to all and sundry including public institutions and university and public libraries, within Anambra State, throughout Nigeria and even overseas has been read by many persons within the area of sale too numerous to list.

Wherefore the plaintiff claims from the defendants jointly and severally-

(a) Two hundred thousand naira (200,000) general damages for the libel.

(b) An order for the defendants to deliver all the books to the court for destruction OR ALTERNATIVELY that the defendants expunge all references to the plaintiff in the said book.”

The defendants’ addresses for the purposes of effecting the service of the writ of summons on them are as follows, again, according to the writ of summons:-

“1st Defendant-

B.O. Nwabueze Esq.

Executive Director,

U.B.A. Ltd.,

97-105 Broad Street,

P.O. Box 2406, Lagos.

2nd Defendant-

Longman Nigeria Ltd.,

52 Oba Akran Avenue,

Industrial Estate,

Ikeja.

By motion ex parte counsel for the plaintiff moved an Enugu High Court on 19th June, 1986 for substituted service of the writ of summons and other processes in the suit by substituted means, that is to say, by sending the documents by registered post to the defendants’ addresses as shown on the motion paper dated 26th May, 1986. The addresses as indicated on the motion paper are as follows:-

“1st Defendant-B. O. Nwabueze Esq.

Executive Director,

U.B.A. Ltd.,

97 -105 Broad Street,

P.O. Box 2406, Lagos.

2nd Defendant-

Longman Nigeria Ltd.,

52 Oba Akran Avenue,

Industrial Estate,

IKEJA.”

and

Longman Nigeria Ltd.,

3 Orlu Road,

P.M.B.1122,

Owerri,

Imo State.”

In granting the application on 19/6/86, the learned trial Judge who heard it ordered as follows:-

“Order as prayed. The defendants may be served with the writ of Summons in this suit and other processes by sending the same by registered post to the defendants’ addresses as shown in the claim and such service shall be good and sufficient service.”

So, it appears clear that the defendants were to be served at the addresses indicated on the claim and which I have copied above, both of which are in Lagos State outside of Anambra State. The defendants both of them were in fact served accordingly with the writ of summons. Then their Counsel, Chief F.R.A. Williams S.A.N. by motion on notice moved the Enugu High Court for the following orders:-

i. that the Writ of Summons endorsed for service on each Defendant be set aside;

ii. that the order for substituted service on the Defendants made on the 19th day of June, 1986 be set aside; and

iii. that the purported issue and service of the Writ of Summons on each Defendant be set aside.

And the grounds of the application are:-

i. the copy of the Writ of Summons for service on the 1st Defendant being a Writ of Service outside jurisdiction does not conform with the mandatory provisions of the Sheriffs and Civil Process Act Cap. 189 Laws of the Federation of Nigeria 1958 which governs service outside jurisdiction,

ii. the order for substituted service is irregular in so far as there has been no attempt to serve a Writ endorsed in accordance’ with the Sheriffs and Civil Process Act personally on the Defendants;

iii. the court has no jurisdiction to authorise substituted service on a person resident outside Anambra State;

iv. the 1st Defendant was out of the country when the order for substituted service was made and when the writ was delivered to his secretary; and

v. the court has no jurisdiction to issue writ of summons for service on the defendants who are both resident outside jurisdiction in respect of the claims in this action.

Arguments were taken on the application of counsel for defendants by Ubaezonu, J. who ruled on them on 15th December, 1986 follows:-

“In the final analysis the application succeeds in part and I make the following order:-

i. The writ of summons issued from this Court (Anambra State High Court) in this Suit is properly issued. The application to set it aside is hereby dismissed.

ii. The service of the said writ of summons on the defendants in the form in which it is does not comply with the mandatory provisions of S.97 of the Sheriffs and Civil Process Act 1958. The said service or purported service is hereby set aside.

iii. The Assistant Chief Registrar is hereby ordered to endorse the writ of summons and its copies as required by the Sheriffs and Civil Process Act 1958 and to make necessary steps to effect service of copies of the said writ so endorsed on the defendants.”

The defendants were not satisfied with the ruling. Consequently they appealed against it to the Court of Appeal Enugu Division. That Court Coram lkwechegh, Katsina-Ala, Oguntade, JJ.C.A. dismissed the defendants’ appeal and affirmed the decision of Ubaezonu, J. in his ruling of 15/12/86 already quoted above. The defendants still not satisfied with the decision of the Court of Appeal, Enugu Division, have appealed from it to this court.

The defendants attacked the decision of the Court of Appeal, Enugu Division, on four grounds of appeal as contained in their notice of appeal to this Court. The defendants have subsequently filed their brief of arguments where the issues calling for determination in this appeal and arising from the grounds of appeal on the notice of appeal are indicated as follows:-

“i. Whether a Plaintiff may issue a Writ of Summons in Anambra State for an action in defamation in which the cause of action arose in Anambra State against a Defendant who neither resides nor carries on business in Anambra State;

ii. Whether if a Plaintiff can issue the Writ of Summons in the circumstances described in (1) above, he has first to seek and obtain the leave of the High Court of Anambra State before he can issue the Writ of Summons.

iii. Whether the High Court has jurisdiction to treat non-compliance with the mandatory provisions of the Sheriffs and Civil Process Act Cap. 189 Laws of the Federation as a mere irregularity and relieve the Plaintiff of the consequences attaching at law to such non-compliance with the provisions of the statute.”

For his part the plaintiff filed his brief of arguments. And in it, according to him, the questions for determination in this appeal, going by the defendants’ grounds of appeal, are as follows:-

“(a) Whether there are no rules of practice and procedure prescribed by law for the exercise by the Anambra State High Court of its undoubted jurisdiction to determine the suit against the appellants;

(b) If the answer is in the negative, will the High Court of Anambra State be debarred from exercising the said jurisdiction

(c) Did non-compliance with S.97 of the Sheriffs and Civil Process Act render the suit for the commencement of which copies of the writ of summons were served on the appellants null and void since on the date the appellants moved their motion proceedings in court subsequent to service of the summons on the defendants had not begun.”

Oral arguments were taken in court from counsel for both parties on the issues arising for determination as identified in their respective briefs. In the circumstances, I consider it unnecessary in this judgment to set down the grounds of appeal.

The plaintiff as I have shown earlier on in this judgment, sued the defendants for damages for defamation in a High Court of Anambra State in which, according to the plaintiff, the cause of action arose. Counsel for the defendants, Chief F.R,A. Williams, S.A.N. both in the defendants’ brief of arguments and in his oral submissions to us in open court did not dispute it that the High Court of Anambra State has jurisdiction over the type of case which the plaintiff has now brought in that court.

So, it can be safely said that the defendants are not contesting before us the jurisdiction of the High Court of Anambra State over the subject-matter of the plaintiffs claim against the defendants. I can even go further and say that it is common ground in this appeal that the High Court of Anambra State has jurisdiction over the subject-matter of the plaintiffs claim, against the defendants. This being so, it follows in my view, that it is in this light that we have to view each of the issues arising for determination in this appeal which I have now to consider.

Issue (a) identified in the plaintiffs brief as to whether or not there are rules of practice and proceedings prescribed by law for the exercise by the Anambra State High Court of its undisputed jurisdiction over the subject matter of the plaintiffs claim will necessarily arise when considering issues (1) and (2) in the defendants’ brief.

Issue (b) in the plaintiffs brief is a follow up to one of the possible answers to issue (a) i.e. the legal effect of a negative answer to issue (a) on the jurisdiction of the Anambra State High Court on the plaintiffs claim. Issue (c) in the plaintiffs brief, i.e. whether non compliance with the provisions of section 97 of the Sheriffs and Civil Process Act renders the suit null and void is only a variation on Issue 3 in the defendants’ brief to the effect whether or not such non compliance is a mere irregularity which is capable of being remedied. The conclusion I reach is that the issues submitted for determination by the defendants embrace those which the plaintiff says arise for determination. So I am satisfied that by considering the issues in the defendants’ – brief I must necessarily consider those in the plaintiffs brief.

I now take Issue one in the defendants’ brief which for ease of reference I reproduce again here:-

“(1) Whether a Plaintiff may issue a Writ of Summons in Anambra State for an action in defamation in which the cause of action arose in Anambra State against a Defendant who neither resides nor carries on business in Anambra State.”

Counsel for the Defendants Chief F.R.A. Williams S.A.N. as I have just said is-not saying that-the Anambra State High Court has no jurisdiction over the subject-matter of the plaintiffs claim i.e. action for damages for defamation in the High Court of Anambra State where the cause of action arose. What counsel is saying is that the jurisdiction can only be exercised in the manner prescribed by law. In other words, counsel is saying that the jurisdiction can only be exercised within the confines of the law prescribing the way and manner the High Court of Anambra State shall exercise that jurisdiction. In support of this proposition counsel refers to Section 239 of the Constitution of Federal Republic of Nigeria 1979 hereinafter referred to as “the Constitution.” The section says:-

“The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the Court) from time to time prescribed by the House of Assembly of the State.”

Counsel concede it as he must needs do that it is section 236 of the Constitution which confers jurisdiction on the High Court over the subject-matter of the plaintiff’s claim. It is the submission of counsel that Section 239 is concerned with the practice and procedure of the High Court in the exercise of that jurisdiction, a matter which is within the legislative competence of the House of Assembly of a State as provided for in part III item 2(c) of the second schedule to the Constitution. The relevant law within the meaning and intendment of Section 239 of the Constitution, according to counsel, as far as practice and procedure for the Anambra State High Court is concerned is the High Court Rules of the former Eastern Nigeria now applicable to Anambra State hereinafter referred to as “the Rules.” As regards his submission on issue 1 which I am now considering, counsel refers us to Order VII of the Rules. Order VII says as follows:-

“Subject to the provisions of the Law respecting transfer, the place for the trial of any suit or matter shall be regulated as follows:-

“1. All suits relating to land, or any mortgage or charge thereon, or any other interest therein, or for any injuries thereto, and also all actions relating to personal property, distained or seized for any cause, shall be commenced and determined in the Judicial Division in which the land is situated, or the distress or seizure took place.

2. All actions for recovery of penalties and forteitures, (sic) and also all actions against public officers, shall be commenced and tried in the Judicial Division in which the cause of action arose.
3. All suits for the specific performance, or upon the breach of any contract, may be commenced and determined in the Judicial Division in which such contract ought to have been performed or in which the defendant resides.
4. All other suits may be commenced and determined in the Judicial Division in which the defendant resides or carries on business. If there are more defendants than one resident in different Judicial Divisions, the suit may be commenced in anyone of such Judicial Divisions; subject however, to any order which the Court may, upon the application of any of the parties, or on its motion, think fit to make with a view to the most convenient arrangement for the trial of such suit.
5. In case any suit shall be commenced in any other Judicial Division than that in which it ought to have been commenccd, the same may, notwithstanding, be tried in the Judicial Division in which it shall have been so commenced, unless the Court shall otherwise direct, or the defendant shall plead specially in objection to the jurisdiction before or at the time when he is required to state his answer or to plead in such cause.
6. No proceedings which may have been taken previously to such plea in objection shall be in anyway affected thereby; but the Judge shall order that the cause be transferred to the Judicial Division to which it may be proved to his satisfaction to belong, or, failing such proof, that it be retained and proceed in the court in which it has been commenced, and such order shall not be subject to appeal.”

It is counsel’s submission that for the High Court of Anambra State to properly exercise its jurisdiction over the plaintiff’s claim, at least one of the circumstances set down in Order VII rule 4 of the Rules must be present, that is to say the defendants must reside or carryon business in the Judicial Division in which the suit was commenced.

Counsel places reliance on the case of Ezomo v. Oyakhire (1985) 2S.C. 260; (1985) 1 N.W.L.R. (Pt.2) 195 for this submission. I do not think the decision in Ezomo v. Oyakhire (supra) will be a good guide in the present case.

Although the relevant rules of Court applied in that case and those now being considered are the same, the relevant facts in Ezomo v. Oyakhere (supra) are different from those we are faced with in this case. Like in this case the High Court of Bendel State which gave its decision as a court of first instance had jurisdiction over the claim – an action for damages for defamation. Order6 rules 2, 3 and 5 of the Bendel State High Court Rules are inpari materia with Order 7 rules 1, 2 and 4 of the Anambra High Court Rules copied above. Unlike in the present case the defendant in Ezomo v. Oyakhire was a public officer and his address for service as stated on the writ of summons was within Bendel State. The contention of the defendant/appellant in Ezomo’s case in this court that the writ commencing the action against him and which was served on him outside of Bendel state was invalid because it was signed or sealed without the leave of the court or a Judge contrary to Order 2 rule 16 of Bendel State High Court Rules failed in the main because of the two facts present in that case which I have just mentioned.

I may also mention just in passing that my attention has not been drawn to the equivalent of Order 2 rule 16 of the Bendel High Court Rules in the Anambra State High Court Rules (The Rules). I too cannot find such an equivalent in the latter.

It will be convenient at this stage to consider the following submission of counsel for the plaintiff Mr. Anyamene, S.A.N. to us both in the Plaintiffs brief of argument and in counsel’s oral arguments in open court. The submission goes thus:

“The High Court also held that by virtue of 5.22(2) of the High Court Law and Order VII Rule 4 of the High Court Rules the respondent had a right to sue the 2nd appellant who carries on business within the jurisdiction of the court in respect of a cause of action which arose within Anambra State. There was no appeal to the court below against the application of this law by the High Court or its finding that the 2nd defendant carried on business in Anambra State. The appellants cannot therefore raise the complaint in this court.”

I have copied all the provisions of Order VII of The Rules including Rule 4. Section 22(2) of the High Court Law of Anambra State says:-

“(2) The Court shall have jurisdiction to hear and determine any civil cause or matter other than one referred to in sub-section (1) in which the defendant or one of the defendants resides or carries on business within the jurisdiction of the Court.”

If the trial court, the Enugu High Court has held, as contended by counsel for the plaintiff, that the 2nd defendant in this case carries on business within the jurisdiction of the Anambra State High Court, and this finding was not even challenged in the Court of Appeal, the lower court, it will be impossible to hold that the Enugu High Court in issuing the writ of summons in this case has not exercised its undisputed jurisdiction over the plaintiff’s claim in accordance with the practice and procedure -prescribed by the House of Assembly of the State as provided for by section 239 of the Constitution.

For the Anambra State High Court Law is an existing law within the meaning of S.274 of the Constitution and it takes effect as a law made by a House of Assembly and it deals with a matter within the competence of the House of Assembly of the State. See again S.239 of the Constitution.

The relevant findings of the trial Court in this regard are as follows:-

“From the arguments of counsel on both sides and the combined effect of S.22(2) of High Court Law and Order 7 Rules 2 and 4 of the High Court Rules the High-Court of Anambra State will have jurisdiction to issue the writ of summons or entertain this suit if:-

(a) the defendants or any of the defendants carries on business in Anambra State; or

(b) …

(c) …

(d) …

Pleadings have not been ordered or filed in this case. I can therefore only go by the papers filed in this motion.

As regards (a) above i.e. carrying on of business in Anambra State, I find no endorsement or averment on the writ that any of the defendants carries on business in Anambra State. Paragraph 2 of the claim which can be liberally construed as coming nearest to it only shows that the publication complained of took place in Anambra State among other places in Nigeria and overseas.

I have, however, paragraphs 2 and 3 of the count-affidavit of the plaintiff to this motion. Paragraph 2 states that the 2nd defendant is a limited liability company registered in Nigeria and carries on business as book publishers and sellers throughout Nigeria including Anambra State, The said paragraphs 2 and 3 of the counter-affidavit have not been controverted or denied either by an affidavit or by oral argument by counsel. In the absence of pleadings or any denial of those paragraphs, I have no alternative that to accept that as sworn to by the plaintiff, the 2nd defendant carries on business in Anambra State.”

The ruling in which the above finding was made went to the Court of Appeal Enugu. The following is the view rightly or wrongly of the Court of Appeal as to what the High Court held as to whether or not the 2nd defendant carries on business in Anambra State. 1am quoting from the lead judgment of Oguntade, J.C.A. in which Ikwechegh and Katsina-Alu, JJ.C.A. concurred:-

“The lower court in a ruling (manifesting obvious industry) delivered on 15/12/86 held that:

(1) None of the appellants resided in Anambra State.

(2) The 1st defendant appellant was not a public officer.

There has been no cross-appeal by respondent against those findings and for the purpose of this appeal I shall take those findings made by the lower court as correct.

…

In the moment, there are two preliminary points I like to make. The first of them relates to the argument of respondent’s counsel that section 11(3) of the High Court Edict of Anambra State (No. 16 of 1987) which came into force on 31st December, 1986 has conferred jurisdiction on Anambra State High Court to hear and determine actions in torts committed in Anambra State whether or not the defendant or any of the defendants resides or carries on business within the jurisdiction of the court. The ruling which is the subject matter of this appeal was delivered on 15/12/ 86. This was before the Edict referred to came into effect. I ought to decide the issues raised in this appeal with reference to the law as it stood when the ruling complained against was delivered and not at any point subsequent to it. That being so, the Edict does not form part of the issues considered in this judgment.

Secondly, the lower court did not make any finding that the 2nd appellant carried on business in Anambra State as the respondent implied in the issue he stated arises for determination.”

(Italics mine)

The Court of Appeal in resolving the second preliminary point it considered, has made a finding adverse to the contention of counsel for the plaintiff before it. The plaintiff has not appealed against that finding to us. So it is on that finding we have to decide this appeal. I need only to remind myself that the appellate jurisdiction of this court as contained in Section 213(1) of the constitution is to hear and determine appeals from the Court of Appeal.

And if a finding of law or of fact in the judgment of the Court of Appeal is not challenged in an appeal from that court to this court that finding stands rightly or wrongly for the purpose of the appeal in question regardless of the merit of what the trial court might have said on the same point.

The conclusion I am constrained to reach on the point I am considering is that there is no factual basis for the contention of the plaintiff that the jurisdiction of the High Court in this case has been exercised in accordance with the provisions of 5.22(2) of the High Court Law. I will now continue with the consideration of issue one in the defendants’ brief, bearing in mind the following findings of fact emerging from the judgment of the Court of Appeal:-

1. None of the defendants resides or carries on business in Anambra State; and
2. The 1st defendant is not a public officer.

Counsel for the defendants Chief F.R.A. Williams, S.A.N. concedes it as I have said above that the Anambra State High Court has jurisdiction over the plaintiff’s claim because of Section 236 of the Constitution. His contention on issue one in the defendant’s brief boils down to this in my view: because the relevant law as to the practice and procedure for the High Court in the exercise of that jurisdiction, made or deemed to be made pursuant to section 239 of the Constitution does not cover the situation obtaining in the instant case, the undisputed jurisdiction of the High Court no longer exists or falls into abeyance.

At this stage I must talk about the jurisdiction of the Anambra State High Court. Section 236 of the Constitution provides thus as regards the jurisdiction of the High Court of a State:-

“(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

This unlimited jurisdiction as Section 236 says is subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon the State High Court by law. For the purposes of the case in hand I need only consider a provision of the Constitution to which this jurisdiction must be subject. In this regard I refer to Section 6 sub-section 2 of the Constitution which says:

“The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.”

This provision denotes the area of the territorial jurisdiction of the High Court of a State. So as regards the High Court of Anambra State the area of its territorial jurisdiction embraces the whole of Anambra State. It has jurisdiction over the subject matter of the plaintiff’s claim because the act complained of by the plaintiff occurred within the area of its territorial jurisdiction.

Generally courts exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction. (Re Busfield (1886), 32 Ch.D., per Cotton, L.J. at p. 131; Re Anglo African 5.5. Co. (1886), 32, Ch. D. at p.350; Berkeley v. Thompson (1884)10 App. Cas. at p. 49; Ex. p. Blain, re Sawers (1879), 12 Ch. D 522). It should be noted that except where there is a submission to the jurisdiction of the court it has no jurisdiction over a person who has not been served with the writ of summons. The court has no power to order service out of the area of its jurisdiction except where so authorized by statute or other rule having force of statute. See Tassell v. Hallen (1892)1 Q.B. 321; Matthews v. Kuwait Bechtel Corporation (1959)2 Q.B. 57).

I would now like to refer to the following passages from the judgment of Sugerman, J. in the case of Ex parte Iskera, Ex parte Mercantile Transport Company in the Supreme Court of New South Wales, Australia, – a federation like Nigeria – Full Court coram Sugerman, Brereton and Manning, JJ. 20, 21 June and 23rd August 1962 transcript of which Chief Williams S.A.N. has made available to us. The passages are:-

First: “The general doctrine of English Law is that the exercise of civil jurisdiction, in the absence of an Act of Parliament must in all cases be founded upon one or other of two principles, namely the principle of effectiveness or the principle of submission. (Of. Duncan and Dykes, Principles of Civil Jurisdiction as applied in the Law of Scotland, p. 8).

The principle of effectiveness means that a judge has no right to pronounce a judgment if he cannot enforce it within his own territory. (Dicey, p.33; Story, s.539; Tallack v. Tallack, (1927) p. 211, at p.221). the elementary fact several times stated by Holmes, J., that ‘the foundation of jurisdiction is physical power’ (McDonald v. Mabee (1917), 37 Sup. Ct. 343; Lorensen 134; Michingan Trust Co. v. Ferry (1913), 33 Sup. Ct. 550, Lorensen 145), is worthy of attention, although, as we shall see, there are certain exceptional cases in which jurisdiction may be assumed by virtue of statute over persons who are abroad and thus not within the power of the Court (O. xl, infra, pp. 150, et seq.). Power in this connexion means that physical power which becomes exercisable because the property which is the subject-matter of the suit is in England or because the defendant is present at the time of service of the writ in England, and broadly speaking, it is true to say that an English Court does not consider itself competent to adjudicate upon a claim if neither of these elements is present. In such a case the maxim is actor sequitur forum rei and the plaintiff has no alternative but to sue the defendant in the country where he happens to be’ (Cheshire, Private International Law, 3rd ed., pp. 139 – 40).

Second “The jurisdiction of a State Court considered solely from the point of view of its jurisdiction over persons who are outside the territorial limits of the State, is dependent upon the existence of statutory authority for the service of its process outside those limits.”

These propositions of law are in line with the statements of law I have referred to above whilst talking about the jurisdiction of the Anambra State High Court.

As regards the case in hand authority for the service of a writ of summons outside of the area of jurisdiction of State High Court which issued it but within the Federation of Nigeria is a matter exclusively within the legislative competence of the National Assembly or the Federal Government. In this regard section 96 of the Sheriffs and Civil Process Act Cap 189 Laws of the Federation of Nigeria, an Act of the National Assembly provides thus:-

“(1) A writ of summons issued out of or requiring the defendant to appear at any court of a Region or part of the Federation may be served on the defendant in any other Region or part of the Federation.

(2) Such service may, subject to any rules of court which may be made under this Ordinance, be effected in the same manner as if the writ was served on the defendant in the Region or part of the Federation in which the writ was issued.”

These are clear statutory provisions for the service of a writ of summons outside the territorial jurisdiction of a State High Court which issued it but within the Federation of Nigeria. So section 96(1) and (2) of the Sheriffs and Civil Process Act provides authority for the service of the writ of summons in this case issued in the Anambra State High Court for service on the defendants who reside outside of Anambra State but within Nigeria. It follows therefore, having regard to all the authorities I have hitherto referred to that in my judgment the Anambra State High Court which has jurisdiction over the subject-matter of the plaintiffs claim equally has jurisdiction over the defendants against whom the claim is made and who reside in Nigeria although neither of them resides or carries on business in Anambra State.

If I had not found any authority for service of the writ of summons in this case outside of the territorial limits of Anambra.State High Court on the defendants, I would have held that the State High Court has no jurisdiction over them. For in that case either of the two principles upon which the exercise of civil jurisdiction must be founded, namely, the principle of effectiveness or the principle of submission will be present. What I have just said supplies the answer to issue (b) raised in the plaintiffs brief of arguments which I have copied above.

I do not think the decision of this court in Fajinmi v. The Speaker Western House of Assembly (1962)1 All N.L.R. 205 at 213 in which the jurisdiction of the trial court over the defendants was clothed, albeit in part, by the Court of Appeal is in point here. In that case this court held in a situation, where there was no practice and procedure for a Western State High Court for the exercise of its undoubted jurisdiction to determine the specific question whether the seat of the plaintiff a member of the Western State House of Assembly had become vacant as follows:-

“Those 1960 Regulations provide in Regulations 70 to 127 for election petitions: they do not provide for the hearing and determination of a question whether the seat of an elected member has become vacant; and the lacuna should be drawn to the notice of the Attorney-General of the Region.

In the meantime the High Court has a duty to hear and determine the case in hand, and resolve the question raised. The plaintiff has, in the absence of other provisions, brought his case in the form of an action, which is the ordinary way of approaching the court for making a request to have a matter in difference decided and relief granted; and the action should now proceed.”

In that case the jurisdiction of the State High Court over the defendant was not at all in dispute. It was a case pure and simple of absence of practice and procedure for the exercise of the undoubted jurisdiction, in any conceivable sense, of the State High Court over the subject-matter and the defendant. In the instant case the issue is one of jurisdiction of the Anambra State High Court over the defendants. It is for this reason I say the case of Fajenmi v. The Speaker Western House of Assembly (supra) is not in point.

I will now go on to issue 2 in the defendants’ brief of arguments. The issue relates to the point whether in the circumstances that neither of the defendants resides or carries on business in Anambra State and, as I have just held, the plaintiff can issue the writ of summons in this case against both of them, the plaintiff must first seek and obtain leave of the High Court of Anambra State before he can issue the writ or cause it to be issued.

The Court of Appeal, the lower Court has held that section 11(3) of the High Court Edict of Anambra, No. 16 of 1987 which came into force on 31st December, 1987 and which, inter alia, conferred jurisdiction on an Anambra State High Court to hear and determine actions in torts committed in Anambra State whether or not the defendant or any of the defendants resides or carries on business within the jurisdiction of this court will not apply in this case. That position has not been challenged before us. The view of that court that the law as at the time the ruling of the trial court was pronounced i.e. on 15/12/86 will apply is not challenged either. So it will remain for the purposes of this appeal.

It will appear that the Justices of the Court of Appeal Enugu Division, did not address their minds to the issue of leave to issue the writ of summons in this case in the first instance, having held that the High Court of Anambra had jurisdiction to issue the writ, as distinct from the issue of leave to serve the writ outside Anambra State after it shall have been issued. The Court of Appeal was essentially pre-occupied with the latter although both issues were raised before it.

Counsel for the defendants Chief F.R.A. Williams, S.A.N. submits that The Rules are silent on whether or not in the circumstances in this case the plaintiff has to obtain first leave before he can issue the writ of summons or cause it to be issued. He then refers to Section 16 of the Law which says:-

“16. The jurisdiction vested in the Court shall be exercised (as far as regards practice and procedure) in the manner provided by this Law and in any other written law or by such rules and orders of Court as may be made pursuant to this Law or any other written law, and, in default thereof, in substantial conformity with the law and practice for the time being observed in England in the High Court of Justice, on the thirtieth of September, 1960.”

And then he refers to Laibru Ltd v. Building and Civil Engineering Contractors (1962) 1 All N.L.R. 387 at page 392 where this court said:-

“Section 12 of the Lagos High Court Ordinance provides that-

The jurisdiction vested in the High Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this or any other Ordinance, or by such rules and orders of court as may be made pursuant to this or any other Ordinance, and in the absence of any such provisions in substantial conformity with the practice and procedure for the time being of Her Majesty’s High Court of Justice in England. The second clause ekes out the deficiencies of the old Supreme Court (Civil Procedure) Rules, which are still in force; and the deficiencies are two fold:-

(a) those rules are not as full as they should be on the subjects with which the Order deal;

(b) they contain no Orders on some other subjects. There is nothing in the wording of the clause to restrict its application to the second class of deficiency; the clause is wide enough to include both classes of deficiency; therefore the interpretation which makes the clause more helpful should be preferred.”

On the authority of Laibru’s case, and because the Rules do not provide for the situation we are now dealing with and because S.16 of the High Court Law provides for the application of the English Rules in that circumstance, I am satisfied that the practice and procedure for the High Court of Justice in England on 30th September, 1960 will apply in this case.

The relevant English Rule, according to counsel for the defendants, and I agree with him, is Order 2 Rule 4, R. S. C. 1960 which says:-

“No writ of summons for service out of the jurisdiction, or of which notice is to be given out of jurisdiction shall be issued without the leave of the Court or a Judge.”

It follows from what I have just been saying in this judgment that the issue of a writ of summons and the service of that writ of summons on a defendant in a case are conditions precedent for the exercise of the jurisdiction which a court may have over the subject-matter of an action over the defendant.

In the case of Anisminic Ltd. v. The Foreign Compensation Commission & Anor. (1969)1 All E.R. 208 at p.233 it was said, inter alia, as regards various ways in which lack of jurisdiction may arise in a case:- “There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry.” The decision of this court in Sken Consult Nig. Ltd. v. Ukey (1981)1 S.C. 6 at 26 where the following passage from the judgment in Madukolu and others v. Nkemdilim (1962)1 All N.L.R. 587 at 594 was referred with approval:-

“A court is competent”, he said; “when:-

(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

(2) the subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.” (Italics mine)”

was quoted with approval is along the same lines.

I can now go back to the consideration of issue 2 in the defendants’ brief of arguments. I have held that the provisions of Order 2 Rule 4 of the Rules of the Supreme Court of England (1960) which provides that no writ of summons for service outside of the jurisdiction or of which notice is to be given out of jurisdiction shall be issued without the leave of the court of a Judge. By the indorsement on the writ of summons in the case in hand the addresses of the defendants for service are outside of Anambra State, to wit, their addresses for service are in the case of the 1st defendant in Lagos State and in the case of the 2nd defendant in Lagos State and or Imo State. In other words on the showing of the plaintiff himself the defendants are outside the area of territorial jurisdiction of the High Court of Anambra State. So because of the provisions of Order 2 Rule 4 of R. S.C. (1960) England the plaintiff had to obtain the leave of the Anambra High Court before he could issue or cause the writ of summons to be issued. It is common ground in this case that no such leave was obtained by the plaintiff before the writ was issued or, before the plaintiff caused the writ to be issued.

As I have said the issue of a writ of summons and the service of the same writ on a defendant are conditions precedent for the exercise of a court’s jurisdiction over the defendants. And from what I have been saying so far a condition precedent for the issue of the writ of summons against the defendants in this case who are resident outside the area of territorial jurisdiction of the High Court of Anambra State and who, again, neither of them carries on business within that area of jurisdiction, is that leave of the State High Court had to be first obtained before the writ was issued.

Leave to issue a writ which is to be served out of the jurisdiction is not granted as a matter of course under the English Rules. For the discretion to grant the leave sought is exercised judicially and with great care. See Williams v Cartionright (1885)1 Q.B. 142 C.A. Bowlong v. Cox (1926) A.C. 751, 754. And as Chief F.R.A. Williams S.A.N. points out to us in his arguments in this appeal the question which is the forum convenience for the trial is one of the matters to be considered by court in the exercise of this discretion. Other matters are (1) the question of comparative cost and convenience (see Logon v. Bank of England (1906)1 K.B. 141 C.A. and (2) the fact, if it exists, that proceedings in respect of the same subject-matter are already pending elsewhere. See The Hagen (1908) p. 189 at 202. So the application for leave to issue a writ which is to be served out of jurisdiction is not a mere formality. Since leave was not first obtained before it was issued, I must hold and I do hold that writ of summons had been issued without due process of law and accordingly has to be set aside.

I have not found the decision in British Bata Shoe Co. Ltd. v. Melikan (1956) 1 F.S.C. at 105 and 106 to which counsel to the defendant referred us very helpful. This court held in that case that an action for the specific performance of a contract relating to land in Aba in the then Eastern Region of Nigeria and manifestly situate outside the territorial jurisdiction of the High Court of Lagos was an action in personam and that so by virtue of the confliction rules of jurisdiction the Lagos High Court had jurisdiction to make the order for specific performance in as much as the defendant was within the jurisdiction of that court.

Equally I do not find the case of Nigerian Ports Authority v. Panalpina World Transport (Nigeria) Ltd. & Ors. (1974) N.M.L.R. 82 of much assistance. In the latter case there was the issue of the territorial jurisdiction of the High Court of Lagos State to be considered in that the subject- matters of the plaintiff’s claims in the case were all located in Warri a place outside the area of jurisdiction of Lagos State unlike in the present case where the subject matter of the present plaintiffs case is within the area of jurisdiction of the High Court of Anambra State.

What I have said on issue 2 is enough to dispose of this appeal in favour of the defendants. For it follows that if the writ of summons in this case itself is set aside there would be nothing left which could have been effectively served on the defendants. But since arguments were taken on issue 3 I might as well make pronouncements on the arguments. It is clear that issue 3 relates to a situation which would arise after a writ of summons must have been issued and what was contemplated was the service of that writ of summons on the defendants who are outside of the jurisdiction of Anambra State High Court. As I have said, no such service outside of the jurisdiction is allowed except it was authorized by statute or other rule having the force of statute.

It is common ground in this case that the applicable statutory provision when one is dealing with a situation where a defendant is outside of the area of the jurisdiction of a State High Court but within Nigeria will be found in the Sherrifs & Civil Process Act Cap. 189 Laws of the Federation of Nigeria 1958. The relevant provisions are Section 96 sub-Sections (1) and (2) and section 97. I have already copied Section 96 above. I need only reproduce Section 97 now. It provides as follows:-

“97 Every writ of summons for service under this Part out of Region or Part of the Federation in which it was issued shall, in addition to any other endorsement or notice required by law of such Region or part of the Federation, 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 the……………….Region (or as the case may be………………and in the ………Region (or as the case may be)”

The trial court held that the provisions of Sec. 97 of the Sheriffs & Civil Process Law had not been complied with before the writ of summons issued in this case was served on the defendants. Having so held learned trial Judge proceeded as follows:-

“The requirement to so endorse the writ is a mandatory provision of the law. Mandatory provisions of the law must be complied with. Any step taken on a process which does not comply with a mandatory provision of the law, as opposed to the rules, would be a nullity. In the Skenconsult Nig. Ltd. & Anor. v. Godwin Sekondy Ukeh (supra) the Supreme Court set aside orders made on a process which did not give the defendant up to 30 days notice within which to put in appearance as required by 8.99 of Sherrifs and Civil Process Act 1958. See also Olubusola Stores v. Standard Bank Nigeria Ltd. (supra).

It is true that the failure to endorse the writ of summons that the summons is to be served out of Anambra State does not prejudice the defendants as the failure to serve a party with a process or give him the necessary statutory notice (as in the Skenconsult and Olubusola cases supra) yet it is my view that the law having been made and so long as it remains on the statute book must be given effect to.

It is clear that Sections 96 – 103 deal with service of Process. In fact, the law is so headed. If anything is to be declared invalid it is the service of the process with which the Sections are concerned and not the writ itself which I hold was properly issued. I therefore hold that the service of the writ of summons on the 1st and 2nd defendant out of Anambra State without the necessary endorsement for service outside the State is invalid and of no effect. The said purported service is hereby set side.”

The Court of Appeal Enugu affirmed the decision of the trial court. From the above passage from the judgment of the trial court it is very clear that the trial court had not treated non-compliance with the mandatory provisions of the Sheriffs & Civil Process Acts as regards service of writ of summons outside the area of the territorial jurisdiction of a State but within Nigeria as a mere irregularity. In fact it held that failure to comply with the provision was sufficient to render service outside the State invalid and of no effect. That is a far cry from saying non-compliance with the provision is a mere irregularity. So I really cannot see on what finding of the High Court Issue 3 in the defendants’ brief of argument is based. For ease of reference issue 3 says:-

“Whether the High Court has jurisdiction to treat non-compliance with the mandatory provisions of the Sheriffs and Civil Process Act Cap. 189 Laws of the Federation as a mere irregularity and relieve the Plaintiff of the consequences attaching at law to such non-compliance with the provisions of the Statute.”

The complaint in issue 3 is predicated on the assumption that the trial court treated non-compliance with the mandatory provisions of Sheriffs and Civil Process Act as a mere irregularity. I have shown that this is not so. The trial court did hold that non-compliance vitiated the whole of the service; i.e. non-compliance is a matter which goes to the very root of the service. If however it is the contention of counsel for the defendants that because of noncompliance with the provisions of the Sheriffs and Civil Process Act not only the service of the Writ of Summons, but also the entire Writ of Summons should be set aside, I do not agree to that. The Sheriffs and Civil Process Act have nothing to do with the issue of the writ of summons itself a matter evidently within the area of jurisdiction of the House of Assembly of a State, whilst service of a writ of summons outside the State but within Nigeria is within the area of jurisdiction of the National Assembly which must be deemed to have enacted the Sherrifs and Civil Process Act.

On the authorities therefore, I cannot say that the trial Judge was wrong as to the views he held as regards the service of the writ of summons. What the trial court and the lower court, the Court of Appeal did in setting aside the service of the writ of summons and not the writ of summons itself the instant case because of non-compliance with the provision of section 97 of the Sheriffs and Civil Process Act governing service of a writ of summons out of the area of jurisdiction of the State from which it emanates but within the Federation of Nigeria is in line with the decision in the Australian case of Wilson Electric Transformer Co. Ltd. v. Electricity Commission of New South Wales (1968) V.R. 330 one of the many Australian cases to which Chief F.R.A. Williams S.A.N. referred us. In that case, the defendant who resided outside of the jurisdiction of State High Court issuing the writ of summons but who was within Australia applied to set aside the writ by reason of non-compliance with relevant provisions of The Service and Execution of Process Act of Australia. The non-compliance alleged having been found established, Adam, J. held as to the relief sought by the defendant namely that the writ and service thereof be set aside.

“Although such orders have frequently been made, I do not consider it appropriate to set aside the writ itself but only the service thereof. The Act does not make a writ endorsed for service in some other State a nullity in cases not falling within S.11(1) but, if a defendant does not submit to the jurisdiction by entering an appearance thereto, precludes any further proceedings on such writ. This appears to me to explain the observation of Dixon, C.J. and Fullagar, J. in Talerman’s Case (1957) 98 C.L.R. at 108, that “strictly speaking, it would seem that the service of the writ, not the writ itself, should be set aside.”

As no further proceedings may be taken on the writ as a result of my order setting aside the service thereof, the further relief claimed staying all further proceedings would appear to be unnecessary larder that the service of the writ be set aside.”

Counsel for the defendants has also drawn our attention to the case of John Ukoh v. Godwin Akatu (1974)4 E.C.S.L.R. 202 where Oputa, J. (as he then was) held that service of a writ of summons on a defendant at Otukpo in Benue State was not service out of jurisdiction as it involves service within the Federation of Nigeria and in the circumstances no leave was required for summons to issue or to serve it at Otukpo. Having regard to my decision in this case that part of the decision which says that no leave was required to issue a writ of summons for service outside of the jurisdiction of East Central State could not be correct on the prevailing state of the law. To that extent, I agree with counsel for the defendants Chief F.R.A. Williams that the decision in Ukor v. Akatu was wrong.

In the result, the defendants’ appeal is allowed by me. The judgment of the Court below and that of the trial court are hereby set aside. The entire writ of summons served on the defendants in this case is hereby set aside. It follows that the plaintiffs claims against the defendants is hereby struck out. The defendants are entitled to their costs in this court and in the court below and in the trial court which I assess at N500.00, N300.00 and N200.00 respectively.

A. O. OBASEKI, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Agbaje, JSC. and I agree that the appeal be allowed and the action struck out, the writ of summons having been issued without the leave of court as required by the Rules of Court. The short point argued in this appeal is whether under the Rules of Court governing the Practice and Procedure in the High Court of Justice of Anambra State, leave of the court or judge must be obtained to issue out a writ of summons to be served outside the jurisdiction of the court.

The brief facts of the case on which the objection of the appellants to the jurisdiction of the Anambra State High Court were founded may be stated as follows:

“The respondent claimed by a writ of summons issued against the appellants in the High court of Anambra State of Nigeria, Enugu Judicial Division:

(1) the sum of N200,000.00 (Two hundred thousand Naira general damages for libel; and

(2) an order for the defendants to deliver all the books to the court for destruction or alternatively that the defendants expunge all references to the plaintiff in the said libel.”

The addresses for service endorsed on the writ are:

(1) Plaintiff – 13 Ogidi Street,

Ogui, Enugu;

(2) 1st Defendant (now 1st appellant)

Executive Director,

U.B.A. Ltd.,

97 – 105 Broad Street,

P.O. Box 2406,

Lagos.

(3) 2nd Defendant (now 2nd appellant)

Longman Nigeria Limited,

52 Oba Akran Avenue,

Industrial Estate,

Ikeja.

Simultaneously with the filing of the writ, a motion for substituted service was filed. The motion reads:

Motion Exparte for Substituted Service

TAKE NOTICE that this Honourable Court will be moved on Thursday, 5th day of June, 1986 by the hour of nine O’clock in the forenoon, or so soon thereafter as the court may direct, when the plaintiff through his learned counsel, may be heard praying the court for the writ of summons and the processes in this case to be served on the defendants by registered post to the addresses shown below, and for any other order the court may deem fit to make in the premises.”

1st defendant-

B. O. Nwabueze Esq.

Executive Director,

U.B.A. Ltd ..

97 – 105 Broad Street,

P. O. Box 2406, Lagos.

2nd Defendant-

Longman Nigeria Ltd.,

52 Oba Akran Avenue,

Industrial Estate,

Ikeja.

And

Longman Nigeria Ltd.,

3 Orlu Road,

P.M.B.1122,

Owerri.

Imo State,”

It is therefore clear on the face of the writ and the motion that the defendants now appellants were required to be served outside Anambra State.

The affidavit in support of the exparte application sworn to on the 30th day of May, 1986 by the plaintiff/respondent put the matter beyond doubt that the plaintiff/respondent knew that the defendants addresses for service where outside the Anambra State. Paragraph 2 of the affidavit reads:

“That the 1st defendant resides and works in Lagos as the executive director of the United Bank for Africa Ltd.”

and paragraphs 8 and 9 read:

“8. That as shown in the said book, the 2nd defendant has offices at Ikeja, Ibadan, Zaria, Owerri and representatives throughout Nigeria but I do not know which of these offices is the registered office of the company;

9. That the principal officer of the defendant works at 52 Oba Akran Avenue, Industrial Estate, Ikeja; and its office at Owerri is situate at No.3 Orlu and has postal Mail Bag 1122, Owerri, Imo State.”

The civil summons issued by the court and signed by the judge reads, without the title:

“You are hereby commanded in the State’s name to attend this court at Enugu High Court 7 on Wednesday the 30th day of July, 1986 at 9 O’clock in the forenoon to answer a suit by plaintiff c/o A.N. Anyamene (SAN.) against you. The plaintiffs claim is as follows:

(a) N280,000.00general damages;

(b) An order for the defendants to deliver all the books to the F court for destruction OR ALTERNATIVELY that the defendant expunge all references to the plaintiff in the said book.”

Issued at Enugu the 20th day of June, 1986.

Summons …1460.00

Service … 200.00

Kilometre …4.00

Transport. .5.00

CR. No.692520

30/6/86

Signed Judge.”

The exparte application was granted and the order for substituted service made.

On the return date, parties were absent but appeared by counsel, Chief Mr. Anyamene, SAN. (leading one other counsel) appeared for the plaintiff/respondent.

Chief F.R.A. Williams, SAN, leading 8 other counsel appeared for the A defendant/applicant. Before then, the appellants, through their counsel had filed notice of objection to the issue and service of the want m the following terms:

“TAKE Notice that at the hearing of the above matter on the 30th day of July, 1986 at the hour of 9 O’clock in the forenoon or so soon thereafter as counsel may be heard the defendants will apply for the following orders:

i. That the writ of summons endorsed for service on each defendant be set aside;

ii. that the order for substituted service on the defendants made on the 19th day of June, 1986 be set aside; and

iii. that the purported issue and service of the writ of summons on each defendant be set aside.”

The grounds for the application were expressly stated on the notice of objection to be:

(i) The copy of the writ of summons for service on the 1st defendant being a writ of (for) service outside jurisdiction does not conform with the mandatory provisions of the Sheriffs and Civil Process Act Cap 189 Laws of the Federation of Nigeria 1958 which governs service outside jurisdiction;

(ii) the order for substituted service is irregular in so far as there has been no attempt to serve a writ endorsed in accordance with the Sheriffs and Civil Process Act personally on the defendants;

(iii) the court has no jurisdiction to 3uthorise substituted service on a person resident outside Anambra State;

(iv) the 1st defendant was out of the country when the order for substituted service was made and when the writ was delivered to his secretary; and

(v) the court has no jurisdiction to issue writ of summons for service on the defendants who are both resident outside jurisdiction in respect of the claims in this action.

After hearing arguments of learned counsel to the parties, the learned trial judge, Ubaezonu, J. held as follows in the concluding paragraph of his Ruling:

“In the final analysis, the application succeeds in part and I make the following order:

1. The writ of summons issued from this court (Anambra State High Court) in this suit is properly issued. The application to set it aside is hereby dismissed.
2. The service of the said writ of summons on the defendant in the form in which it is, does not comply with the mandatory provisions of S.97 of the Sheriffs and Civil Process Act 1958 and to take necessary steps to effect service of the copies of the said writ so endorsed on the defendants.”

The appellants were dissatisfied with the Ruling and so appealed to the Court of Appeal on the following ground:

“(i) The learned trial Judge erred in law in failing to observe that the issue of the writ of summons in this action was invalid not being authorised by Order VII of the High Court Rules.

Further Particulars of Error

(a) The facts of this case in so far as the validity of the issue of the writ is concerned are indistinguishable from those in Ezomo v. Oyakhire (1985)2 SC. 260.

(b) In the premises, the High Court ought to have concluded that the Rules of Court do not empower the court to issue the writ herein;

(c) the Rules of Court took effect on Ilorin as a law enacted by the Legislature of Anambra State;

(d) The jurisdiction conferred on the High Court must be exercised in accordance with the practice and procedure aforesaid;

(ii) Even if (which is not admitted) the High Court of Anambra State had jurisdiction to issue the writ of summons herein, it can only do so after its leave had been first sought and obtained. Accordingly, the High Court was in error in failing to set aside the issue of the writ or to consider (after hearing arguments) whether or not it was a proper case in which he ought to amend the proceedings by granting such leave.”

After hearing arguments of counsel in support of these above grounds, the Court of Appeal (Ikwechegh, Katsina-Alu and Oguntade, JJCA.) dismissed the appeal.

Oguntade, JCA. (delivering the lead judgment, concurred in by Ikwechegh and Katsina-Alu, JJCA.) concluded as follows in the penultimate paragraph of his judgment:

“I think the lower court adopted the correct approach. Before a writ of summons could be endorsed by the registry staff of the High Court, it would first have been issued. The respondent as plaintiff had nothing to do with the issue and endorsement. The stigma of invalidity attached to the writs of summons between the stage after they have been issued to the stage when they were served without the endorsement. It was in that part of the process that non-compliance with the provision of the statute occurred. The trial court set aside the service and ordered the re-issue of a new writ. By setting aside the writs he agreed that they were invalid. Otherwise, there would be no reason to set aside the service. It cannot therefore be argued that he treated the non-compliance as a mere irregularity. He fully, in my view, complied with (the provisions of) section 97 of the Act. He did not dispense with its provisions. There is therefore no merit in this ground of appeal.”

The appellants were not satisfied with the decision of the Court of Appeal. So they brought this appeal to this Court (the Supreme Court) on the following grounds:

“i. The Court of Appeal erred in law in failing to observe that a state High Court must exercise the jurisdiction vested in it under the Constitution and by any law in accordance with the practice and procedure prescribed by law.

ii. The Court of Appeal misdirected itself in law in concluding that-

“the Anambra State High Court, notwithstanding the absence of provisions in the court rules can exercise jurisdiction over the appellants in respect of a tort committed within the jurisdiction of Anambra State High Court even if the appellants reside in Lagos State and are not public officers.”

Particulars of Misdirection

(a) Order VIII, by necessary implication provides that a plaintiff may not serve a defendant where such defendant does not reside or where such defendant does not carryon any business;

(b) the court below accordingly erred in assuming that there is absence of provisions in the rules of court on the matter

(c) there is a manifest legislative policy of refraining from allowing the High Court to exercise jurisdiction over non-residents of Anambra State who are not public officers in actions for tort;

(iii) The court below erred in law in deciding that where a plaintiff can properly issue a writ of summons against a non-resident of the State, he does not have to seek and obtain the leave of the court before he can issue the writ when there is express provision in Rules of Supreme Court 1960 Order 2 Rule 4 to that effect;

(iv) The court below erred in law in failing to observe that non-compliance with the requirements of the Sheriffs and Civil Process Act cannot, in law, be treated as an irregularity capable of being regularised in the absence of express statutory powers enabling the court to do so.”

The questions for determination in this appeal formulated by the appellants are in pari passu with the questions formulated by Oguntade, JCA. when this matter came before the Court of Appeal for determination. They are:

(1) whether the plaintiff may issue a writ of summons in Anambra State for an action in defamation in which the cause of action arose in Anambra State against a defendant who neither resides nor carries on business in Anambra State;

(2) whether, if a plaintiff can issue the writ of summons in the circumstances described in (1) above, he has first to seek and obtain the leave of the High Court of Anambra State before the issue of the writ of summons;

(3) whether the High Court (of Anambra State) has jurisdiction to treat non-compliance with the mandatory provisions of the Sheriffs and Civil Process Act Cap. 189 Laws of the Federation as mere irregularity and relieve the plaintiff of the consequences attaching at law to such non-compliance with the provisions of the statute.

The appellants have thus raised issues of tremendous importance touching the Rules governing the practice and procedure in the Anambra State High Court on the issue and service of a writ of summons. The importance of the issues appears at first deflated by the fact that Nigeria is one and indivisible State although it is a Federation consisting of 19 States at the time the writ was issued but now 21 states. The federal set up of the country is however recognised by the provisions of the 1979 Constitution in sections 2(1) and (2); 6(1) (2) and (5); 6(a) and (b); 234(1); 236(1) and (2); 237(1) and (2) and 239. These sections provide as follows:

Section 2(1) Nigeria is one

“indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria;

(2) Nigeria shall be a Federation consisting of states and a federal capital territory.”

Section 6

(1) “The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation”

(2) “The judicial powers of a state shall be vested in the courts to which this section relates being courts established subject as provided by the Constitution for a state”

(5) This section relates to-

(a) the Supreme Court of Nigeria

(b) the Court of Appeal

(c) The Federal High Court

(d) a High Court of a state

(e) a Sharia Court of a state

(f) a Customary Court of Appeal of a State

(g) such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws and

(h) such other courts as may be authorised by law to exercise jurisdiction at first instance or an appeal on matters with respect to which a House of Assembly may make laws”

“The judicial powers vested in accordance with the foregoing provisions of this section

(a) shall extend, notwithstanding anything to the contrary in the Constitution, to all inherent powers and sanctions of a court of law;

(b) shall extend, to all matters between persons or between government or authority and any person in Nigeria, and to all actions proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

Section 234:

(1) “There shall be a High Court for each state of the Federation”; Section 236

(1) “subject to the provisions of this constitution, and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a Stare shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forefeiture, punishment or other liability in respect of an offence committed by any person”

(2) “The reference to civil or criminal proceedings includes a reference to the proceedings which originates in the High Court of a State and those which are brought before the High Court to be dealt with by the court in exercise of its appellate or supervisory jurisdiction;”

Section 237:

(1) “without prejudice to the generality of the provisions of section 236 of this Constitution, the competent High Court shall, to the exclusion of any other court have original jurisdiction to hear and determine any question whether any person has been validly elected to any office or to the membership of any legislative house, or whether the term of office of any person has ceased or the seat of a person in a legislative house has become vacant.

(2) in this section “competent High Court” means-

(a) in any case involving the office of president or Vice president, the Federal High Court and on the coming into force of section 262 of this Constitution, the High Court of the Federal Capital Territory established pursuant to section 263 of this Constitution;

(b) in any case involving any other office, the High Court of the State as respect which such office is established under the Constitution; and

(c) in any case involving the membership of or the seat of a person in a legislative house, the High Court of the state where the senatorial district, Federal constituency or state constituency of that member or person is situated.”

“The High Court of a state shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the court) from time to time prescribed by the House of Assembly of the State.”

Also relevant are sections 96(1) and (2); 97 and 98 of the Sheriff and Civil Process Act Cap. 189 Vol. 6 UFN. 1958 and Sections 22 and 16 of the High Court of Eastern Nigeria applicable in Anambra State. Section 96:

(1) A writ of summons issued out of or requiring the defendant to appear at any court of a State or part of the Federation may be served on the defendant in any other state or part of the Federation;

(2) such a 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 part of the Federation in which the writ was issued.”

Section 97:

“Every writ for summons for service under this part out of the state or part of the Federation in which it was issued shall in addition to any other endorsement or notice required by the law of such a state or part of the Federation 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 the……..state (or as the case may be) and in the…state (as the case may be)”

Section 98:

“A writ of summons for service out of the state or a part of the Federation in which it was issued may be issued as a concurrent writ with one for Service within the state or part of the Federation and shall in that case be marked concurrent.”

The relevance of Section 97 of the Sheriffs and Civil Process Act arises from the fact that Anambra State legislature has no power to legislate on service of process on a person outside Anambra State but within the Federation. This power belongs to the Federal Legislature and item 56 of the Exclusive Legislative List brings it out very clearly. That item 56 deals with:

“service and execution in a state of the civil and criminal processes, judgments, decrees, orders and other decisions of any court of law outside Nigeria or any court of law in Nigeria other than a court of law established by the House of Assembly for that State.” (Italics mine)

The Sheriffs and Civil Process Act is an existing Law and takes effect as a law enacted by the Federal Legislature which formerly was the National Assembly during the civilian era but now the Armed Forces Ruling Council in this military administration (see section 274(1)(a) Constitution of the Federal Republic of Nigeria, 1979). The provisions of Section 97 are mandatory. They do not govern the issue of the writ of summons but only the service of the summons.

The contention of the appellant is short. It is that the High Court law and the High Court Rules are existing laws and as the defendants/appellants do not reside or carryon business in Anambra State, the High Court Rules of Anambra State which incorporated the English Rules RSC.1960 to govern the issue of the writ of summons is applicable to regulate the issue of a writ of Summons while the Sheriffs and Civil Process Act governs the service of the writ of Summons outside Anambra State.

The libel complained of was published in Anambra State. It is contained in a book written by the 1st appellant and published and circulated in Anambra State by the 2nd appellant. The respondent alleges that the 2nd appellant at page 2 advertised that it has offices in places outside Anambra State but has representatives throughout Nigeria. This statement is not definitive enough. The respondent did not identify or state who the representatives in Anambra State are. In the absence of this, the finding of the learned trial Judge that the 2nd appellant carries on business in Anambra State is, in my view, totally unfounded and cannot be interpreted to make the Anambra State High Court Rules applicable to govern service of the Writ of summons. It is true that section 22(2) of the High Court Law applicable in Anambra State provides that:

“the court shall have jurisdiction to hear and determine any civil cause or matter other than the one referred to in sub-section (1) in which the defendant or one of the defendants resides or carries on business within the jurisdiction of the court.”

This section cannot, in my view, be invoked until the address at which the defendant resides or carries on business within the jurisdiction is endorsed on the writ or the representative is identified and his address given. Order 9 Rule 12 of the High Court Rules settles the matter. It reads:

“Where the suit is against a defendant residing out of but carrying on business within the jurisdiction in his own name or under the name of a firm through an authorised agent, and such suit is limited to a cause of action which arose within the jurisdiction, the writ or document may be served by giving it to such agent, and such service shall be equivalent to personal service on defendant.”

Section 16 of the High Court law which is an existing law and can be regarded as made in pursuance of section 239 of the Constitution provides that:

“The jurisdiction vested in the court shall be exercised (as far as regards practice and procedure) in the manner provided by this law and in any other written law or by such rules and orders of court as may be made pursuant to this law or any other written law and in default thereof in substantial conformity with the law and practice observed in England in the High Court of Justice on thirtieth September, 1960.”

The situation that has arisen in this case is not covered by the expressed Rules of the High Court and hence resort must be made to the English Rules.

Issue of Writ

Order II Rules I and II of the High Court Rules are very relevant to the contention of the appellants that where a writ is to be issued to commence an action against a person outside the jurisdiction of the court, the leave of the court, as required by the English Rules which have been incorporated by reference by section 16 of the High Court Law into the Anambra State High Court Rules, must be sought and obtained. The High Court Rules applicable in Anambra State at the relevant time contains no such requirements but the English rules make provision for the necessity to obtain leave to issue writs for service out of jurisdiction.

Order 2 Rule 4 Rules of Supreme Court (England) 1960 which is alleged to apply reads:

“No writ of summons for service out of the jurisdiction or of which notice is to be given out of jurisdiction shall be issued without the leave of the court or judge.”

Order 2 Rules 1 and 2 of the Anambra State High Court Rules read:

“1. Every suit shall be commenced by a writ of summons signed by a judge, magistrate or other officer empowered to sign summonses. The writ of summons shall be issued by the Registrar, or other officer of the court empowered to issue summonses on application.

The application shall ordinarily be made in writing but the Registrar or other officer aforesaid where an applicant for a writ of summons is illiterate may dispense with a written application and instead himself record full particulars of the oral application made and on that record, a writ of summons may be prepared signed and issued.

2. The writ of summons shall contain the name and place of abode of the plaintiff and of the defendant so far as they can be ascertained; it shall state briefly and clearly the subject matter of the claim and the relief sought for and the date (called the return-day) and place (called the return-place) of hearing.”

The book containing the libellous material was in the writ of summons allegedly:

“printed in thousands and sold to all and sundry including public institutions and university and public libraries within Anambra State, throughout Nigeria and even overseas has been read by many persons within the areas of sale too numerous to list.”

That being so, the tort of libel was committed within the jurisdiction of Anambra State High Court. The High Court, in my view, has jurisdiction to entertain the claim. This jurisdiction can only be exercised in accordance with the practice and procedure prescribed by the legislature of Anambra State (see section 239 of the 1979 Constitution). The Rules of practice and procedure to be followed have been set out in the High Court Law and High Court Rules applicable in Anambra State.

The main question for decision in this matter is whether the issue of writ for service outside the Jurisdiction of the court without leave is valid. Neither the Rules nor the High Court Law made specific provision to regulate the issue. The absence of rules to cater for such a situation was envisaged by section 16 of the High Court Law and the solution provided by it is to apply the provisions of the 1960 English Rules. The English Rules made it mandatory to obtain leave of the court or judge to issue the writ of summons for service outside jurisdiction. In other words, unless leave of the court or judge is first obtained, the writ cannot issue. There is therefore substance in the contention of the appellants that the issue of the writ without leave is null and void. In matters of jurisdiction, the common law rules apply as between states within the Federation of Nigeria. See

(1) British Bata Shoe Co. Ltd. v. Melikian (1956) 1 FSC. 100 per Jibowu, FCJ. at 102 and per Nageon de Lestang, FJ. at 105 -106;

(2) Nigerian Parts Authority v. Panalpina World Transport Nigeria Ltd. (1974) NMLR. 82 per Coker, J.S.C.

The writ of summons in this matter was issued without leave at the time of issue. The issue of the writ without leave is therefore invalid and null and void.

The court was informed by counsel in this matter that the Rules have now been amended to make it unnecessary to obtain leave to issue the writ of summons. Be that as it may, the issue of the writ at the time relevant to this proceedings was not in accordance with the provisions of Rules of Court and was therefore invalid.

In conclusion, I will answer the first and second questions for determination in the affirmative. (See section 236, Constitution of the Federal Republic of Nigeria 1979 see section 16 High Court Law applicable in Anambra State Cap 6gl Vol. IV Laws of Eastern Nigeria 1963) (See Order Rule 4 Rules of the Supreme Court (England) 1960). But I will answer he third question it, the negative in that the service of the writ is a nullity. See Skenconsult Nigeria Ltd. & Anor. v. Godwin Sekondy Ukey (1981) 1 SC. 6).

The appeal succeeds and is hereby allowed. The decision of the Court of Appeal affirming the decision of the High Court is hereby set aside and the suit is hereby struck out.

The respondent shall pay costs to the appellants fixed at N500.00 in this Court; N300.00 in the Court of Appeal and N200.00 in the High Court.

UWAIS J.S.C: I have had the advantage of reading in advance the judgment read by my learned brother Agbaje, J.S.C. I agree that the appeal should be allowed.

At the time material to this case, for the service of a wit of summons outside jurisdiction to be effective in Anambra State High Court the relevant provisions of the High Court Law, Cap. 61 Laws of Eastern Nigeria, 1963 High Court Rules, Cap. 61 and the Sheriffs and Civil Process Act, Cap 189 Laws of the Federation of Nigeria, 1958 must be complied with.

It is elementary that every suit in the High Court commences with a writ of summons (see Order 2 rule 1 of Anambra State High Court Rules, Cap 61) If all the parties to the suit, namely plaintiff and defendant, are resident within Anambra State, Order 7 of the High Court Rules provides in what Judicial Division of the High Court the suit is to be commenced. If the plaintiff docs not reside within the Judicial Division where the suit is instituted Order 5 of the High Court Rules, provides the manner in which process is to be served on him outside the jurisdiction. The High Court Rules have not made any specific provision as regards service of process on a defendant who lives in Anambra State but outside the Judicial Division in which the suit is instituted. However, there are express provisions under the Sheriffs and Civil Process Act, Cap. 189 which deal with the manner in which a writ of summons is to be served on a defendant who lives in Nigeria but outside the jurisdiction of the High Court of a State. That is for service outside a State or rather in another State of Nigeria where the defendant resides. Section 96 thereof provides as follows-

“96 (1) A writ of summons issued out of or requiring the defendant to appear at any court of a State or part of the Federation may be served on the defendant in any other state or part of the Federation.

(2) 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 part of the Federation in which the writ was issued.”

One of the questions that arise in this case is: in what manner are the provisions of section 96 aforesaid to be effected Is it for a judge of the High Court of Anambra State to order suo motu that a writ of summons to be served in a State other than Anambra State should be so served or is it for the plaintiff at whose instance the writ of summons is issued to apply to the judge for leave so that service of the writ of summons can be effected in another State Although a number of subsidiary legislations had been made under the Sheriffs and Civil Process Act, Cap. 189, neither the Act nor the subsidiary legislations provide the answer to these questions. Chief williams, learned Senior Advocate, for the appellants, has submitted that recourse would have to be made to English Supreme Court Rules, 1960 in view of the provisions of section 16 of the High Court Law, Cap. 61 of Anambra State since the High Court Rules, Cap. 61 have not made any provisions on the issue. I agree with the submission. Section 16 of the High Court Law, Cap. 61 states-

“16. The jurisdiction vested in the Court shall be exercised (as far as regards practice and procedure) in the manner provided by this Law and in any other written law or by such rules and orders of Court as may be made pursuant to this Law or any other written law, and, in default thereof in substantial conformity with the law and practice for (sic) (the time being) observed in England in the High Court of Justice, on the thirtieth of September, 1960.”

The parenthesis in the foregoing is mine as there is obvious omission by the legal draftsman. Now Order 2 rule 4 of the English Rules of Supreme Court, 1960 provides as follows-

“No writ of summons for service out of the jurisdiction or of which notice is to be given out of jurisdiction shall be issued without the leave of the Court or a Judge.” It follows therefore that a writ of summons which is to be served outside Anambra State cannot be issued without the plaintiff first obtaining the leave of the High Court of Anambra State. It also follows that it is not for the judge of the High Court to act suo motu by ordering that such a writ of summons is to issue without the plaintiff so applying.

Chief Williams referred to the provisions of section 239 of the Constitution of the Federal Republic of Nigeria, 1979 which states, with regard to the practice and procedure of a State High Court, as follows:-

“239. The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the court) from time to time prescribed by the House of Assembly of the State,”

and submitted that these provisions of the Constitution are mandatory and Anambra State High Court must as such comply with them. I agree with the submission.

From the facts of this case which have been well stated in detail in the judgment of my learned brother Agbaje, J.S.C., and which I do not wish to recapitulate here, it is obvious that the learned trial Judge was in error not to adhere to the provisions of Order 2 rule 4 of the English Supreme Court Rules, 1960. The writ of summons as issued and endorsed by the High Court was issued not only in violation of the provisions of Section 16 of the High Court Law, Cap. 61, Order 2 rule 4 of the English Rules but also the provisions of Section 239 of the 1979 Constitution. This appeal must therefore succeed, the writ of summons issued in Anambra State by the respondent for service on the appellants in Lagos State must be declared null and void since it was issued by the High Court of Anambra State when it lacked jurisdiction.

Mr. Anyamene, learned Senior Advocate, for the respondent had in the course of his argument drawn our attention to the fact that an Edict had been promulgated in Anambra State in 1987 which had amended the provisions of the High Court Law, Cap. 61. to the effect that it is now no longer necessary to have recourse to the Rules of the Supreme Court in England. The Edict in question cannot have application to the instant case, because the writ of summons concerned was issued and the ruling of the High Court being appealed against was given before the Edict came into force. Learned counsel to the respondent did not contend that the Edict had retrospective effect so as to embrace the present case.

For these and the reasons contained in the judgment of my learned brother Agbaje, J.S.C. the appeal succeeds, and it is hereby allowed. The decisions of the High Court and the Court of Appeal are hereby set-aside. I endorse the order as to costs made in the aforesaid lead judgment.

A. G. KARIBI-WHYTE, J.S.C.: I have had the privilege of reading the judgment of my learned brother A.G.O. Agbaje, JSC. in this appeal, and I agree entirely with the reasoning and the conclusion that this appeal succeeds. The real point in issue in this appeal is whether service of a writ of summons issued in respect of a tort arising within jurisdiction against defendants who neither reside nor carryon business within the jurisdiction of the High Court was valid.

The facts which are not in dispute in anyway have been very fully stated in the lead judgment of my learned brother A.G.O. Agbaje, JSC. I will nevertheless repeat so much of the facts as are relevant to my reasons for concurring.

1st Defendant hereinafter the 1st appellant who at all material times was resident in Lagos is the author of a book entitled “Nigeria’s Presidential Constitution 1979-1983.” The 2nd Defendant, hereinafter the 2nd Appellant is a publishing company with its head office at 20 Oba Akran Avenue, in Ikeja, and offices in Ibadan, Owerri, Zaria. The Respondent is a retired Chief Judge of Plateau State, who lives at 13, Ogidi Street, Ogui, Enugu is aggrieved by a passage in Chapter 18 of the said book, which he claimed had published falsely and maliciously concerning him words which in their ordinary meanings are calculated to disparage his reputation as Chief Judge of Plateau State and holding him to contempt and ridicule and lowering him in the estimation of right thinking members of society generally. Respondent has alleged that the offending publication has been sold to all and sundry throughout Nigeria, and even overseas, particularly to public institutions and university and public libraries within Anambra State. Respondent accordingly issued his writ of summons claiming from the Appellants as follows:-

“the plaintiff claims from the defendants jointly and severally-

(a) Two hundred thousand naira (200,000) general damages for the libel.

(b) An order for the defendants to deliver all the books to the court for destruction OR ALTERNATIVELY that the defendants expunge all references to the plaintiff in the said book.” On a motion ex parte made on the 5th June, 1986 and granted on the 19th June, 1986, Respondent sought and was granted leave to serve appellants with the writ of summons and other processes by sending the same by registered post to the appellants’ addresses as shown on the writ of summons. The case was then adjourned for pleadings to 30/7/86. By a motion on Notice dated 16th July, 1986 and fixed for hearing on the 30th July, 1986, the Defendants/Appellants applied for the following orders:-

“TAKE NOTICE that at the hearing of the above matter on Wednesday the 30th day of July, 1986 at the hour of nine o’clock in the forenoon or so soon thereafter as counsel may be heard the

Defendants will apply for the following orders:-

(i) (that the Writ of Summons endorsed for service on each Defendant be set aside;

(ii) that the order for substituted service on the Defendants made on the 19th day of June, 1986 be set aside; and

(iii) that the purported issue and service of the Writ of Summons on each Defendant be set aside.

FURTHER TAKE NOTICE that the grounds of the application are that:-

(i) the copy of the Writ of Summons for service on the 1st Defendant being a Writ of service outside jurisdiction does not conform with the mandatory provisions of the Sheriffs and Civil Process Act Cap 189 Laws of the Federation of Nigeria 1958 which governs service outside jurisdiction;

(ii) the order for substituted service is irregular in so far as there has been no attempt to serve a Writ endorsed in accordance with the Sheriffs and Civil Process Act personally on the Defendants;

(iii) the court has no jurisdiction to authorise substituted service on a person resident outside Anambra State;

(iv) the 1st Defendant was out of the country when the order for substituted service was made and when the Writ was delivered to his Secretary; and

(v) the court has no jurisdiction to issue writ of summons for service on the defendants who are both resident outside jurisdiction in respect of the claims in this action.

AND FURTHER TAKE NOTICE that at the hearing of this application the 1st Defendant will rely on the proceedings and ruling of the 19th day of June, 1986 in addition to the affidavit sworn in support of this application and the exhibit annexed thereto.”

After arguments on the application, the learned trial Judge gave a considered ruling in which he made the following orders –

“(i) The Writ of summons issued from this Court (Anambra State High Court) in this suit is properly issued. The application to set it aside is hereby dismissed.

(ii) The service of the said Writ of summons on the defendant in the form in which it is does not comply with the mandatory provisions of S.97 of the Sheriffs and Civil Process Act 1958. The said service or purported service is hereby set aside.

(iii) The Assistant Chief Registrar is hereby ordered to endorse the writ of summons and its copies as required by the Sheriffs and Civil Process Act 1958 and to take necessary steps to effect service of the said writ so endorsed on the defendants.”

Aggrieved by this ruling appellants appealed to the Court of Appeal. Appellants filed three grounds of an appeal as follows:-

“(a) that the learned trial Judge failed to observe “that the issue of the writ of summons in this action was invalid, not being authorized by order vii of the High Court Rules;”

(b) that the High Court of Anambra State could only exercise jurisdiction to issue the writ of summons “after its leave had been first sought and obtained”, and “was in error in failing to set aside the issue of the writ or to consider (after hearing arguments) whether or not it was a proper case in which he ought to amend the proceedings by granting such leave;” and (in the additional ground); that non-compliance with Section 97 of the Sheriffs and Civil Process Act invalidated the proceedings affected by such defect.

The issues for determination in the Court of Appeal were neatly formulated in that court and stated in the judgment of the court as follows:-

“(1) Whether a plaintiff may issue a Writ of Summons in Anambra State for an action in defamation in which the cause of action arose in Anambra State against a defendant who neither resides nor carries on business in Anambra State.

(2) Whether if a plaintiff can issue the Writ of Summons in the circumstances described in (1) above, he has first to seek and obtain the leave of the High Court of Anambra State before he can issue the Writ of Summons.

(3) Whether the High Court has jurisdiction to treat non-compliance with the mandatory provisions of the Sheriffs and Civil Process Act Cap. 189 Laws of the Federation as a mere irregularity and relieve the plaintiff of the consequences attaching at law to such non-compliance with the provisions of the statute.”

These issues have been accepted by both counsel before us as accurately representing the matters in controversy. The Court of Appeal disposed of first the issue whether section 11(3) of the High Court Edict of Anambra State (No. 16 of 1987) which came into force on 31st December, 1986 which conferred jurisdiction on the Court to hear and determine actions in torts committed in Anambra State whether or not the defendant or any of them resides or carries on business within the jurisdiction of the Court. It was held that the Edict coming into force after the ruling appealed against did not form part of the issues considered in the ruling, and was therefore not relevant. The court also observed that the trial Judge did not make any finding whether 2nd appellant carried on business in Anambra State, contrary to the argument of counsel to the Respondent in that court. In a curious demonstration of mistaken consistency Mr Anyamene had in his brief of argument maintained the position that appellants were carrying on business within the jurisdiction of the Court.

In deciding the first ground of appeal whether the High Court of Anambra State could issue a writ of summons against Appellants who neither reside nor carryon business within its jurisdiction, the court of appeal considered Section 236 of the Constitution 1979 with respect to the jurisdiction of the High Court, and section 6(6)(a) and (b) with respect to its powers. The Court also considered section 239 of the Constitution 1979 with regard to the manner of the exercise of jurisdiction. With respect to the submission of counsel for the appellants that the action ought to have been commenced where the defendant resides or carries on business even though the cause of action arose in Anambra State.

The court said at p. 111,

“I am unable to agree with that reasoning. Clearly a right exists in respondent to bring his action. The source of that right is the Constitution. Since the judicial powers of Anambra State are vested in Anambra State High Court where the cause of action arose, it seems to me that the suggestion that the respondent should have sued elsewhere is unsound,”

The Court relied on a dictum of the Judicial Committee of the Privy Council in Board v. Board (1919) AC. 958, at pp. 962-963, where their Lordships said:

“If the right exists, the presumption is that there is a court which can enforce it, for, if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the King’s Court of Justice. In order to oust jurisdiction, it is necessary in the absence of a special law excluding it altogether, to plead that jurisdiction exists in some other Court.”

The Court went on to observe that rules of court are not intended to be extra territorial and observed at p. 111 that “Reference in those rules of Court to actions being justiceable in a particular venue where a defendant resides can mean no more than residence of a defendant within the same State.” The Court citing Erisi & ors v. Idika & ors (1987) 4 NWLR (Part 66)503,512 observed that since the rules of court of Anambra State cannot dictate what actions are triable in the Lagos State High Court or any other State the Court would resort to its inherent jurisdiction preserved under section 6(6)(a) of the Constitution 1979 to prevent a failure of justice. Resort was also had to Olayiwola v. Nwadike (1967) NMLR 15 at p. 17 and Fajinmi v. Speaker, Western House of Assembly (1962) 1 All NLR. 205 for the view that in the absence of rules of practice and procedure the court was not deprived of its jurisdiction nor disabled from exercising its powers. The court finally on this ground came to the conclusion at p. 112

“….that Anambra State High Court notwithstanding the absence of provision in its court rules, can exercise jurisdiction over the appellants in respect of a tort committed within the jurisdiction of Anambra State High Court even if the appellants reside in Lagos State and are not public officers.”

The second ground of appeal concerned the validity of the writ of summons issued against the appellants who neither reside nor carryon business within the jurisdiction of the High Court of Anambra State, without leave of the Court or a High Court Judge. The Court of Appeal considering this ground of appeal, accepted partially the view expressed by Oputa J in Ukoh v. Akatu (1974) 4 F.S.S.L.R. 202, and relying on sections 96 of the Sheriffs & Civil Processes Act Cap. 189 and referred to Laibru Ltd. v. Building and Civil Engineering Contractors (1962) 1 All NLR. 387 at p. 392, came to the 8 conclusion that it was not necessary to seek leave of the High Court in order to issue a writ of summons in respect of cause of action arising from the state where the defendants neither reside nor carryon business within the jurisdiction.

The Court expressed the reason for so holding at p. 119 as follows:-

“The question of service outside the jurisdiction does not arise and there is therefore no more a need to invoke Order 2 Rule4 of R.S.C. 1960. The purpose of section 96(1) and (2) is to create uniformity and abolish jurisdiction regimes throughout the Federation of Nigeria in matters of service of Writs of summons issued out of states ….. It will in my view be inequitable to say that a plaintiff issuing a writ of summons in Anambra State requires the leave of the court while his counterpart in other states does not require such leave …

The third ground of appeal relates to the non-compliance with the provisions of section 97 of the Sheriffs and Civil process Act which the learned Judge treated as a mere irregularity to be cured by a re-issue of the writ of summons. The Court of Appeal cited Attorney-General v. Birmingham

James Rea District Drainage Board (1912) AC. 788 accepted the proposition that a Court cannot grant dispensation from obedience to the provisions of a statute, except in accordance with the express authority of the statute. It was also conceded that the writ of summons was served on each of the appellants without the mandatory endorsements. The learned Judge agreed that service of the writ of summons ought to be set aside and actually set aside. He however went on to direct the Registrar of the High Court to issue fresh writs of summons suitably endorsed for service on the appellants, the Court of Appeal approved and regarded it as compliance with the provisions of section 97 of the Sheriffs and Civil Process Act, Cap. 189.

The appeal before us is against the whole judgment. Four grounds of appeal have been filed. They are as follows-

“(1) The Court of Appeal erred in law in failing to observe that a State High Court must exercise the jurisdiction vested in it under the Constitution and by any law in accordance with the practice and procedure prescribed by law.

(2) The Court of Appeal misdirected itself in law in concluding that-

“the Anambra State High Court notwithstanding the absence of provision in its court rules, can exercise jurisdiction over the appellants in respect of a tort committed within the jurisdiction of Anambra State High Court even if the Appellants reside in Lagos State and are not public officers.”

Particulars of Misdirection

(a) Order VII, by necessary implication, provides that a Plaintiff may not sue a Defendant where such defendant does not reside or where such defendant does not carryon any business;

(b) the Court below accordingly erred in assuming that there is absence of provisions in the rules of Court on the matter;

(c) there is a manifest legislative policy of refraining from allowing the High Court to exercise jurisdiction over non-residents of Anambra State who are not public officers in actions for tort.

(iii) The Court below erred in law in deciding that where a Plaintiff can properly issue a Writ of summons against a non-resident of the State, he does not have to seek and obtain the leave of the High Court before he can issue the Writ when there is express provision in R.S.C. 1960, Order 2 rule 4 to that effect.

(iv) The Court below erred in law in failing to observe that noncompliance with the requirements of the Sheriffs and Civil Process Act cannot in law be treated as an irregularity capable of being regularised in the absence of express statutory powers enabling the Court to do so.”

Both counsel to the appellants, Chief F.R.A. Williams SAN, and of the Respondent A.N. Anyamene S.A.N. filed their briefs of argument, and in oral argument before us relied on the briefs so filed except for expatiation on areas of obscurity. Counsel for the Appellants adopted in its entirety the formulation of the questions for determination by the Court of Appeal, which I have already reproduced in this judgment.

Counsel for the Respondent’s formulation of the questions for determination, though different, raise the same issues. They are as follows-

“(a) Whether there are no rules of practice and procedure prescribed by law for the exercise by the Anambra State High Court of its undoubted jurisdiction to determine the suit against the appellants;

(b) If the answer is in the negative, will the High Court of Anambra State be debarred from exercising the said jurisdiction

(c) Did non-compliance with s.97 of the Sheriffs and Civil Process Act render the suit for the commencement of which copies of the writ of summons were served on the appellants null and void since on the date the appellants moved their motion proceeding in court subsequent to service of the summons on the defendants had not begun.”

The Grounds 1-3 of the grounds of appeal are covered by the third question. Grounds 1- 3 and questions 1 and 2 relate to the issues of the validity of the writ of summons issued against the appellants; whereas ground 4 and question 3 relate to the issue of the validity of the service of the writ of summons. Thus the question in this appeal can be resolved by the determination of the two broad issues stated above.

Chief F.R.A. Williams S.A.N. arguing grounds 1-3 pointed out that Appellants do not dispute the fact that the High Court of Anambra State has jurisdiction over the type of case in question. Their contention is that the jurisdiction has to be exercised in accordance with the practice and procedure prescribed governing the exercise of jurisdiction by the High Court of the State. He referred to section 236 of the Constitution 1979 which confers jurisdiction on the Court, and section 239 which prescribes that such jurisdiction vested in the State High Court by the Constitution or any law, shall be exercised “in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the court) from time to time prescribed by the House of Assembly of the State.” Counsel submitted that this provision which neither confers jurisdiction nor confers power to prescribe procedure for a court, is unique in the sense that it is mandatory. Thus it was submitted that the effect is that the High Court can only exercise the jurisdiction conferred on it in the manner prescribed by law. It was further submitted that this is not a case where the legislature has not enacted any law whatsoever, so that the High Court can resort to its inherent or incidental powers. The rules of court in this case took effect as a law enacted by the House of Assembly of the State.

Chief Williams referred to Order VII, High Court Rules of Anambra State as the relevant rule under consideration and submitted referring to rules 1,3, and 4 that the provision must be construed and applied in the light of the decision of this Court in Ezomo v. Oyakhire (1985) 2 S.C. 260. Counsel submitted that the effect of rule 4 of order VII is that an action in tort (not being an action relating to land) “may be commenced and determined in the Judicial Division in which the defendant resides or carries on business.” The only exception to this rule being where the Defendant is a public officer in which case he must be sued where the cause of action arose. Counsel therefore submitted that since neither of the Defendants is a public officer, the rules do not permit action being commenced against either or any of them in the High Court of Anambra State. Counsel submitted that the Court of Appeal was in error to have ignored the mandatory terms of section 239 of the Constitution 1979.

In his submission Mr. Anyamene supported the judgment of the Court of Appeal and argued that there was provision in the High Court Rules 1955 for the exercise of the jurisdiction of the High Court. Mr. Anyamene cited Fajinmi v. Speaker, Western House of Assembly, the view of the Court of Appeal that the High Court could invoke its inherent jurisdiction to do justice where no rules of practice have been provided-in a particular matter. Counsel for the Respondent rejected the interpretation of counsel for the Appellants of the judgment of this Court in Ezomo v. Oyakhire (supra) but relied on Ndaeyo v. Ogunnaya (1977) 1 S.c. 11, where this court construing the provisions of section 22(2) of the High Court Law, and order VII r.4 of the High Court Rules of Anambra State, held that an action in tort against a defendant was maintainable in the State in which he carried on business.

The crux of the issues involved in this appeal is the validity of the writ of summons issued by the Plaintiff. It is not stricto sensu the validity of service of the writ of summons. The contention of the appellants is not that the High Court of Anambra State cannot exercise jurisdiction in respect of torts committed within its jurisdiction but that in the exercise of its jurisdiction in all cases, the court must observe the applicable rules of practice and procedure made by the House of Assembly of the State. Respondent does not in the main contest the validity of this proposition. The court below was however of the opinion that where there are no applicable rules it has to resort to its inherent jurisdiction. It will be rewarding to trace very briefly the source of the new legal situation now confronting the courts. There is no doubt the situation was ushered in by the constitutional change. The issues have been narrowed to the interpretation of the courts below of the application of the rules of practice and procedure.

Before the effect of the genesis of Federalism on the organisation of the courts, i.e. January 1,1956 the whole country was under one Supreme Court which exercised jurisdiction throughout the country in Judicial Divisions. By s. 136 of the Nigeria (Constitution) Order-in-Council, 1954, the country’s judiciary was reorganised to reflect the Federal character of the new constitutional structure. There were one Supreme Court and four High Courts. Thus each of the political units as regions constituting the country had a High Court with jurisdiction in respect of matters within the competence of its House of Assembly. This was the origin of the exercise of jurisdiction by Regional High Courts. The judgment of the Federal Supreme Court in The British Bata Shoe Co. v. Melikian (1956) 1 FSC. 100 is one of the earliest cases affected by the new arrangement. This was an appeal from an order of a Judge of the High Court of Lagos striking out the Plaintiff’s action seeking specific performance of a contract for the assignment of the respondent’s leasehold property situate at Aba in the Eastern Region, the ground for striking out the action being that the High Court of Lagos had no jurisdiction to try the case. The appeal was allowed and the case remitted to the Court for trial. It was held the High Court had jurisdiction.

The juridical basis for the vesting of jurisdiction in our courts has remained the same, that is the English law view of effectiveness and submission. Both Chief F.R.A. Williams SAN, for the Appellants, Mr. Anyamene SAN, for Respondent, have submitted, the courts below have also referred to section 236(1) of the Constitution 1979 as the source of the jurisdiction of the High Court. I agree entirely with this submission.

I have already set out the submissions of counsel and the reasons adduced by the court below for affirming the ruling of the learned judge. I think it is necessary to consider in addition to section 236(1), also section 3, 239.6(5) of the Constitution 1979, sections 16, 22 of the High Court Law, and Orders 11 r.1, VII rr. 1,2,3,4 of the High Court Rules.

Section 3 of the Constitution 1979 has listed Anambra State as one of the states of the Federation. Section 236 (1) which is a general provision vests in the High Court of States jurisdiction to “hear and determine any civil, proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue…..” Section 239 makes it mandatory for the High Court of a state to exercise the jurisdiction vested in it in section 236 or by any law, in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the Court) from time to time prescribed by the House of Assembly of the State.

It is important to observe that section 236 is subject to the provisions of this Constitution which necessarily includes s.239. Section 239 applies to the exercise of the jurisdiction vested in the High Court by the Constitution or by any law. Section 274(1)(b) of the Constitution saves the High Court Law and High Court Rules as existing laws of the House of Assembly of the State in existence at the time of the coming into force of the Constitution and are not incompatible with any of the provisions of the constitution. Section 22(2) of the High Court Law which is relevant and is any law within section 239 of the Constitution 1979 provides that “The Court shall have jurisdiction to hear and determine any civil cause or matter other than one referred to in sub-section (1) in which the defendant or one of the defendants resides or carries on business within the jurisdiction of the Court.”

Section 22(1) provides for suits for specific performance and actions relating to breach of contract.

It is clear from analysis of these sections that jurisdiction is vested in the High Court where the subject-matter of the action or the person to be damnified is within the territory of the Court – See Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259. Thus the power to adjudicate over matters which have occurred outside the territory must be subject to some restriction to avoid the court acting in vain. It seems to me that we have adopted the two guiding principles for the exercise of jurisdiction in English law, namely, the principle of effectiveness and the principle of submission. I think our approach is consistent with the view of Holmes, J. in McDonald v. Mabee (1917) 37 Sup. Ct. 343, with certain exceptions that the foundation of jurisdiction is physical power.

Thus the exercise of the jurisdiction vested in the Court by section 236(1) of the Constitution 1979 and section 22(2) of the High Court Law, must be in accordance with the practice and procedure from time to time prescribed by the House of Assembly of the State. As I have already pointed out, Counsel to the Appellant has conceded that the High Court of Anambra State has jurisdiction – See Benson v. Ashiru (1967)NMLR. 363, Amanambu v. Okafar (1966) 1 All NLR. 205, Ezomo v. Oyakhire (supra). His complaint relates to the manner of the exercise of the jurisdiction.

Before I go into the contention whether the writ of summons issued was valid vel non, in accordance with the practice and procedure applicable, it is pertinent to discuss the; provisions governing commencement of action under the High Court Rules. This is because validity of the writ of summons depends upon compliance with the preconditions for its issue.

The Rules applicable are those of the High Court made under section 85(1) of the High Court Law Cap. 61 which survived and applies as an existing law of the House of Assembly having been in force immediately before the Constitution came into force in accordance with section 274(4)(b) of the Constitution 1979. The relevant provisions of the High Court Rules which regulate the commencement of actions are orders II rr. 1, 2 and VII rr. 1, 2, 3, 4. For the purposes of this judgment only Orders 11 rr. 1, 2, and VII r 4 are pertinent. They are as follows-

“1. Every suit shall be commenced by a writ of summons signed by a Judge, Magistrate or other officer empowered to sign summonses. The writ of summons shall be issued by the Registrar, or other officer of the Court empowered to issue summonses, on application. The application shall ordinarily be made in writing but the Registrar or other officer as aforesaid where an applicant for a writ of summons is illiterate may dispense with a written application and instead himself record full particulars of the oral application made and on that record a writ of summons may be prepared, signed and issued.

2. The writ of summons shall contain the name and place of abode of the plaintiff and of the defendant so far as they can be ascertained; it shall state briefly and clearly the subject-matter of the claim, and the relief sought for, and the date (called the return day) and place (called the return-place) of hearing.”

Order VII r. 1 prescribes the manner in which suits relating to land or any mortgage, etc. therein or actions relating to personal property, that actions be instituted where the land is situated or the seizure took place and r.2, actions against public officers in the Judicial division where the cause of action arose and r.3 had dealt with actions for specific performance or upon the breach of contract, which shall be commenced where the contract ought to have been performed or in which the Defendant resides, rule 4 prescribes for all other suits not already provided for as follows:-

‘”4. All other suits may be commenced and determined in the Judicial Division in which the defendant resides or carries on business. If there are more defendants than one resident in different judicial divisions, the suit may be commenced in anyone of such Judicial Divisions; subject however, to any order which the Court may, upon the application of any of the parties, or on its motion think fit to make with a view to the most convenient arrangement for the trial of such suit.”

The action in the instant appeal is founded on tort and therefore falls under rule 4, which provides that action be commenced and determined, in the judicial division in which the defendant resides or carries on business. Accordingly for the action to be in compliance with the above rules of practice as prescribed in section 239 of the Constitution, the plaintiff must show that

(a) The defendants or at least one of them resides in the Judicial Division where the action has been commenced, or

(b) Carries on business within the Judicial Division where the action has been commenced; or

(c) Is a public officer in which case action may be commenced in the Judicial Division where the cause of action arose – See Ezomo v. Oyakhire (supra).

Thus even though the Constitution 1979 has vested the jurisdiction in the High Court of the State, the exercise of such jurisdiction shall be in accordance with Section 239 of the Constitution, and the rules regulating commencement of actions.

It is of critical importance to note that Order VII which regulates the place for the trial of any suit uses the expression that the actions “shall be commenced and determined” subject td the provisions of the Law respecting transfer. Order II which prescribes the rules for the commencement of actions has already been reproduced in this judgment.

Thus a combined reading of all the relevant provisions of the Constitution the High Court Law and rules of practice discussed above disclose that actions in tort over which the High Court has jurisdiction by virtue of the cause of action arising within the jurisdiction, shall be instituted

(a) in the Judicial division in which one of the defendants resides or

(b) where one of the defendants carries on business ‘ or

(c) if the defendant is a public officer, where the cause of action arose.

It would seem from the above analysis of the rules that if neither of the defendants as in this case, resides within the Judicial Division in which an action has been brought, or does not carryon business therein, or indeed is not a public officer, the action brought has not complied with the provisions enabling the commencement of actions and exercise of jurisdiction in such cases – See Ndaeyo v. Ogunnaya (1977) 1 S.C. 11. Thus since the cause of action arose within the jurisdiction, the provisions of section 236(1) of the Constitution vests jurisdiction in the High Court. Notwithstanding this constitutional provision, it seems to me that where the defendants are not within the jurisdiction any proceeding against them or judgment pronounced will be a brutum fulmen.-

Chief Williams, SAN, for Appellants submitted, and I agree with him that in the circumstances of this case, the court ought to have invoked section 16 of the High Court Law and had resort to the enabling provision of Order 2 r.1 RSC of England, which provides that Plaintiff must seek leave to issue the writ of summons. This contention was rejected by the Court of Appeal.

After considering the provisions of section 6(6)(a), (b), 236 and 239 of the Constitution 1979 the Court of Appeal stated that even in the absence of provision in its rules of Court for the exercise of jurisdiction over defendants who are outside its jurisdiction, it can exercise jurisdiction in respect of torts committed within the jurisdiction.

As pointed out by Chief Williams SAN, in argument before us, the issue here is whether the writ of summons issued without compliance of the enabling rule of Court is valid. It is not whether service of the writ of summons is valid, the Respondent conceded that leave of the Court was not obtained. The Court of Appeal assumes that leave is not necessary and contended that the Court can exercise jurisdiction by virtue of the inherent powers under section 6(6)(b).

I do not think the view is correct. The Court of Appeal having admitted that the High Court Rules of Anambra State are silent on the venue where the action could be prosecuted ought to have resorted to the provisions of section 16 of the High Court Law which provides that in such cases, where the local rules are inadequate or has made no provision, the jurisdiction should be exercised in substantial conformity with the law and practice for the time being observed in England in the High Court of Justice on the 30th day of September, 1960 – See Laibru Ltd. v. Building & Civil Engineering Contractors (supra), Akunnia v. A-G Anambra State (1977)5SC. 161. It is important to note the limiting date of 30th September, 1960 which is relevant for observing the application of the law and practice in the High Court of Justice in England. I now turn to the applicable rule of practice in England. Order 6 r.7(1) Rules of the Supreme Court provides as follows”

“No writ which, or notice of which is to be served out of the jurisdiction shall be issued without the leave of the Court.

Provided that if every claim made by a writ is one which by virtue of an enactment the High Court has power to hear and determine notwithstanding that the person against whom the claim is made is not within the jurisdiction of the Court, or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction, the foregoing provisions shall not apply to the writ.”

This rule of court is mandatory in its terms. Thus where the defendant is out of jurisdiction no writ for service out of the jurisdiction can be issued except by leave of the Court – See Re Eager, Eager v. Johnstone (1882) 22 Ch.D 86. It may be argued that since the procedure for the issue of writs in Anambra State and in England are different, the rule should not be applicable. In Anambra State the Plaintiff commences an action by application to the Registrar for the issue of the writ of summons and pays the prescribed fees. He also provides the endorsement on the summons, the claim, and the addresses of the defendants. Once the requirements of Order II have been satisfied, any errors in the issue of the writ of summons cannot be visited on the Plaintiff – See Alawode v Semoh (1959)4 FSC. 27. The position is different in England where Plaintiff issues the writ of summons and is not regarded as a judicial act – See Clarke v. Bradlaugh 8 QBD. at p.69. However, since the Court is being called upon to act outside its territorial jurisdiction, in respect of a matter in which there is a cause of action, Plaintiff must satisfy the conditions prescribed for doing so. Accordingly the application for leave to issue the writ is a condition for the issue-of the writ of summons.

An action is only commenced when the writ of summons has been validly issued – See The Espanoleto (1920) p.223, Alston v. Underhill (1833) Cr. & M. 492.

In discussing grounds 1 – 3, I shall confine myself to the question of the issue of the writ of summons, and whether the writ of summons issued without leave of the Court is valid. There is the tendency to confuse the two separate issues of leave to issue the writ of summons, against defendants who are outside the jurisdiction and leave to serve the writ of summons or notice of writ when validly issued out of the jurisdiction. It seems to me that both the trial Judge and the Court of Appeal fell into this error.

In Jagunoje & Ors. v. Oba Ishmael Obafemi Green-Adebo (1965) NMLR 140. Madarikan, J. was faced with the issue of non-compliance with the rule of Court, i.e. the question of endorsement by the Plaintiff. The statement of claim was typed on a piece of paper and gummed to the back of the writ of summons. The trial Judge relying on the English case of Ackers v. Howard 16 QBD 739 held that there was no proper endorsement and the endorsement was a non-compliance with Order 2 rule 1 of the Western Nigeria High Court (Civil Procedure) Rules. The same view was adopted in Alatede v. Falode & Anor. (1966) NMLR 164.

In Re Pritchard (Deceased) (1962) 2 All ER. 846, the action was by originating summons issued out of the Pontypridd District Registry instead of out of the Central Office; as a result the summons was not sealed as it should have been if issued out of the Central Office as required by R.S.C. Ord. 54, r.4B. It was held that the originating summons had not been effectively issued, and accordingly proceedings under it could not be continued. Wilberforce. J. after considering several decided cases and the provisions of Order 54 r. 4B. which provides that

“An originating summons…shall be prepared by the applicant or his solicitor, and shall be deemed to be issued,” stated, at p.849

“Here it seems to me that I can only interprete the provisions of R.S.C. Ord. 54 r. 4B, as laying down a substantial and essential requirement as to the manner in which originating summonses can be issued. It seems to me that a document which has not been sealed as directed by that rule has never been issued at all and that the court cannot permit proceedings to be continued under that document which has not been issued.”

Although this case was decided on June, 5, 1962, the decision represents the law as at Sept. 30, 1960 – See Craig v. Kansen (1943)1 All ER. 108 in respect of failure to serve summons, and Hamp-Adams v. Hall (1911)2 KB. 942. The Court held that the only course open was to decide that the proceedings are a nullity and it was so declared. The Court did not make any distinction between non-compliance which amounted to an irregularity and those which constituted a nullity. This was a later development introduced by Order 2 r.1 in 1964 – See Harkness v. Bell’s Asbestos & Engineering Ltd. (1967)2 Q.B. 729. The distinction is not applicable to the Civil Procedure Rules of the High Court of Eastern Nigeria. Thus leave having not been obtained the writ of summons was not validly issued. It is pertinent to refer to the recent decision of the Court of Appeal in Aermacchi v. A.I.C. Ltd. (1986) 2 NWLR, (Pt. 23) 443, where it was held that failure to obtain leave (to issue writ of summons in an action against defendants resident outside the jurisdiction) before the commencement of the action did not render the writ of summons void, but merely voidable. The decision was based on Order 2 r. 1 RSC of England which applied in Lagos State by virtue of Section 12 of its High Court Law.

The contention in the instant appeal also is that the defect complained of amounts only to a curable irregularity. I do not think so. I have already pointed out that the pre-October 1st, 1960 practice and procedure of the High Court of England applied in the High Court of Anambra State, and the case of Re Pritchard (Dec’d)(supra) did not distinguish between non-compliance resulting in a nullity and those which were curable. The position is that where a pre-condition for the doing of an act has not been complied with no act subsequent thereto can be regarded as valid. This is because the act to which it is subject has not been done. It is however a different consideration where the non-compliance relates to a condition not fundamental to the constitutive elements but is subsequent to the act sought to be done. This is because the act is not conditional as to the performance of the act not complied with. This last mentioned non-compliance is a mere irregularity – See Pontin v. Wood (1962) 1 All ER. 294. Concisely put, where the law prescribes the doing of a thing as a condition for the performance of another, the non-doing of such thing renders the subsequent act void – See Sken-Consult v. Ukey (supra).

I have stated above the rules governing commencement of action arising in the State against defendants resident outside the state and who do not carryon business within the State. The trial Judge did not make any finding whether or not defendants carried on business in Anambra State. It seems to me that the Court of Appeal confused the concept of the exercise of jurisdiction with the concept of the exercise of powers of the Court. It is well settled law that section 6(6)(a)(b) of the Constitution deals with the exercise of powers by the courts named under section 6(5). The jurisdiction of the High Court is derived from section 236 of the Constitution 1979. The High Court cannot exercise a jurisdiction it does not have by virtue of s.6(6) of the Constitution. A court can only exercise judicial power within its authorised jurisdiction – See Bronik Morors Ltd. v. Wema Bank Ltd. (1983)1 SCNLR. 296 Adesanya v. President of Nigeria (1981)2 NCLR.386. The Court of Appeal would appear to have misunderstood the ratio of Ezomo v. Oyakhire (supra). That case is also distinguishable from the instant case. In the first place, the defendant Ezomo was a public Officer and falls within Order 7 r.3. Furthermore, the cause of action did not only arise within the jurisdiction, as in the instant case, Ezomo had an address for service within the jurisdiction. The only common factor with the instant case is that the cause of action arose within the jurisdiction. None of the defendants in this case is a public officer, and neither has been shown to reside nor carryon business within the jurisdiction.

In Amananbu v. Okafor (1967)NMLR. 118, where the defendant was resident within the jurisdiction, the action failed because Plaintiff relied on an inapplicable law.

The Court of Appeal would appear to have misunderstood well settled rules of law and practice and to have advocated and adopted a novel reasoning for the assumption of jurisdiction in a case like this where the plaintiff has a right of action and the jurisdiction of the High Court was by virtue of the cause of action arising within its jurisdiction. But its difficulty is that the defendant is outside its territorial jurisdiction. The Court of Appeal on these facts expressed the view that it was unable to accept the reasoning that the venue in such a situation should be the High Court of Lagos, where the defendants reside even though the cause of action arose in Anambra State. The Court would seem to have followed Olayiwola v. Nwadike, a High Court decision which was wrongly decided. There is no doubt from the unambiguous words of Order 7 r.4 of the High Court Rules that on those facts action can only commence where the defendant resides or carries on business. The Court of Appeal was right when it said that reference to residence of a defendant in Order VII, the rules for institution and trial of suits, can mean no more than the residence of a defendant within the same State. Surely, where the defendants in the instant case do not fall within this condition, this is the more reason why the High Court lacks jurisdiction, as the defendants do not reside within the jurisdiction. The Court of Appeal would appear to accept the theory of forum convenients followed by the High Court which is here not related to the rules of Court. The maxim actor sequitur forum res applies and the Plaintiff has no alternative, unless under specific provisions, but to sue the defendant in the High Court where the defendants reside.

The cases of Olayiwola v. Nwadike (1967) NMLR. 15. and Fajinmi v. The Speaker, Western House of Assembly (1962)1 All NLR.205 were cited and relied upon for resorting to the inherent jurisdiction in the absence of rules of procedure. Olayiwola v. Nwadike (supra) did not raise the same point of law as has been raised in the instant case. Whereas Olayiwola v. Nwadike (supra) was concerned with the issue of jurisdiction where to file the action the point of law in the instant case concerned the validity of the writ issued without leave. Again Fajinmi v. The Speaker, Western House of Assembly (supra) was concerned with the absence of an applicable rule of practice. There is a rule of practice in the instant case. Beckley, J. in Olayiwola v. Nwadike (supra) assumed that on the principle of effectiveness the cause of action arising within the jurisdiction is sufficient for the exercise of jurisdiction. The validity vel non of the writ of summons was not in issue. That is a misunderstanding of the principle. The principle of effectiveness is only properly applicable where the defendant is physically within the jurisdiction of the Court for it to exercise its coercive powers.

The Court of Appeal was therefore demonstrably wrong to have held that there was no provision in the rules of the High Court of Anambra State for the exercise of jurisdiction over appellants residing outside the jurisdiction in respect of a tort committed within the jurisdiction. There was the provision of section 16 of the High Court Law which enables the application of English rules of practice where the local rules do not make provision. Since the writ of summons commencing the action was issued without leave of the High Court, the writ of summons and subsequent proceedings are a nullity- See In Re Pritchard (1962) 2 ALL ER. 846 at p.849. Sken-Consult v. Sekondy Ukey (1981) 1 S.C.6. The action in this case was commenced without fulfillment of the condition precedent for the exercise of jurisdiction. That is a defect in competence which is fatal – Madukolu v. Nkemdilim (1962) 1 ALL NLR. 587.

Grounds 1-3 of the grounds of appeal therefore succeed. This appeal can be decided on the success of these grounds alone. This is because there being no valid writ of summons the question of service and compliance with the provisions of the Sheriffs and Civil Process Act does not arise. It therefore is unnecessary and indeed a futile exercise to consider the 4th ground of appeal which deals with the issue of non-compliance with the requirements of the Sheriffs and Civil Process Act. Furthermore, all the decided cases on the question of non-compliance with the Sheriffs and Civil Process Act, are predicated on a valid writ of summons, the service of which must be in compliance with the relevant provisions of the Act – See Ekpan v. Uyo (1986) 3 NWLR (Pt.26) 63, NPA v. Panalpina Ltd. (1974) NMLR 82 Hill v. Luton Corporation (1951) 4 ALL ER. 1028. It seems to me the most apposite example of the dictum of Denning M.R. in the celebrated case of U.A.C. Ltd. v. Maefoy (1961) 3 ALL ER. 1169 and of the latin maxim ex nihilo nihil fit. There being no valid writ of summons issued, there was nothing to serve, and it was not possible even to comply with the provisions of the Sheriffs and Civil Process Act, – See Craig v. Kansen (1943) 1 ALL ER. 108, Pontin v. Wood (1962) 1 ALL ER. 294.

The trial Judge who set aside service of the writ was under the assumption that there was a valid writ of summons the endorsement for service of which was defective. – See Pontin v. Wood (supra). This is not the case here. The Plaintiff in this case in the absence of leave from the Court lacked the capacity to issue the writ of summons in respect of defendants outside the jurisdiction – See Burns v. Campbell (1951) 2 ALL ER. 965.

For the reasons I have given above and the much fuller reasons in the lead judgment of my learned brother Agbaje, J.S.C. all the grounds of appeal succeed this appeal is accordingly allowed.

The Appellants are entitled to the costs of this appeal assessed at N500 in this Court, and N300 and N200 respectively in the Courts below.

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SC.24/1988