Lignes Aeriennes Congolaises (L. A. C.) V. Air Atlantic Nigeria Limited (A. A. N.) (2005)
LawGlobal-Hub Lead Judgment Report
GARBA, J.C.A.
This is against the ruling of the Federal High Court, Lagos in suit No. FHC/L/CS/1155/98 delivered on the 20th September, 1999 which, dismissed the appellant’s application for striking out the suit on ground of lack of jurisdiction on the part of that court to entertain it. Put briefly, the parties in this appeal had entered into an aircraft lease agreement which by Article 7 thereof, was to be governed by the Congolese Positive Law. The parties under Article 8 of the agreement chose residence at their respective head offices for any usual notifications.
The appellant is an Airline and the national carrier of Congo with its head office at No. 4 Avenue du Port Kinshasa/Gombe, Democratic Republic of Congo and an operational office in Lagos. The respondent as the name shows is a Nigerian Company with its head office at 4B Mobolaji Bank Anthony Way, Ikeja, and Lagos Nigeria.
As plaintiff in the lower court, the respondent claimed inter alia, the sum of U$169,794 (One hundred and Sixty-Nine Thousand, Seven hundred and Ninety-four United States Dollars), being consideration for the lease of Cargo Aircrafts to the defendant/appellant. The civil summons as well as all other processes in the suit were addressed and served at the Murtala Mohammed International Airport, Ikeja, Lagos, the operational office of the appellant.
In response to the processes served on it in Lagos, the appellant filed a preliminary objection to the claims by respondent on the ground that by their lease agreement, the parties had chosen the Congolese law to apply to their relationship and so the lower court lacked jurisdiction to entertain the suit.
Being dissatisfied with the dismissal of its preliminary objection the appellant filed a notice of appeal containing three grounds as follows:
- Grounds of Appeal
Ground 1:
The learned trial Judge erred in law, when he held that the provisions of Articles 7 and 8 of exhibit OL2 as well as other provisions in the same exhibit brought the agreement (i.e. exhibit OL2) within the contemplation of the provisions of section 20 of the Admiralty Jurisdiction Act, 1991.
Particulars:
Exhibit OL2 is titled Aircraft Lease Agreement. Article 7 thereof titled: Legislation and Jurisdiction, provides as follows:
The present agreement shall be governed by Congolese Positive Law. Any dispute relating to the execution, the interpretation and/or the termination of the present agreement shall be settled in a friendly way between the parties. If they fail to do so, the dispute shall be referred to arbitration by both Presidents of Kinshasa and Lagos Bars.
Article 8: Choice of Residence provides:
For any usual notification: the parties have chosen residence at their respective head offices as mentioned in the preamble to the present agreement.
In the preamble the plaintiff/respondent, Air Atlantic Nigeria Limited (AAN) has its Head Office at 4B Mobolaji Bank Anthony Way, lkeja, Lagos, Nigeria, and the defendant/appellant, Lignes Aeriennes Congolaises (LAC) has its Head Office at 4, Avenue Du Port Kinshasa/Gombe, Democratic Republic of Congo. The agreement was made at Kinshasa, DRC, on April 30th, 1998.
Ground 2:
The learned trial Judge erred in law, when he impliedly held that the Nordwind case (Sonnar (Nig.) Ltd. & Anor v. Partenreedri M. S. Nordwind & Anor. (1987) 4 NWLR (Pt. 66) 520; (1987) 1, All N.L.R. 548) supports the plaintiff/ respondent’s argument, that is to say: that in the protection of the jurisdiction conferred on it by the constitution the court must discountenance any ouster of that jurisdiction by any contract or agreement.
Particulars:
Article 7 of exhibit OL2 provides as follows:
“The present agreement shall be governed by Congolese Positive Law.”
The agreement was entered into at Kinshasa, Democratic Republic of Congo.
Ground 3:
The learned trial Judge erred in law, when he tacitly ignored an issue made by the defendant’s/appellant’s counsel about the impropriety of serving the defendants with the court process at their office at Murtala Mohammed International Airport, Ikeja, Lagos.
Particulars:
Under Article 8 of their agreement the parties expressly chose their addresses for service. Each party chose its own Head office address as shown in the preamble to the agreement. The plaintiff/respondent ignored this provision and served the defendant/appellant at their office in Lagos. Counsel for the defendant made an issue of this anomaly. The subsequent ruling of the lower court made no reference to it.
Briefs of arguments were later filed and exchanged by counsel with appellant’s counsel, formulating the following three 3 issues for determination:
3.1.1. What is the interpretation of section 20 of the Admiralty Jurisdiction Act, 1991 (hereinafter referred to as AJD) in relation to the jurisdictional provision of the agreement between the appellant and the respondent?
3.1.2. Does the Nordwind case (3 NSC (1987/90) 175) support the interpretation given to section 20 AJD by the learned trial Judge?
3.1.3. Was the service of court process on the appellant at Lagos not an irregularity which impaired the competence of the summons?
On his part, the learned respondent’s Counsel said at page 1 of his brief of argument that the only issue that stands out for determination from the 3 grounds of appeal is thus:
“Whether the lower court had jurisdiction to determine the case before it.”
Without much ado, the crux of the grievance or complaint of the appellant in the preliminary objection in the court below was that the agreement between it and the respondent is governed by Congolese Law and so that court lacked jurisdiction to entertain the suit filed by respondent. Essentially therefore, the complaint was as the competence of the lower court to entertain claims arising of an agreement government by the laws of the Democratic Republic of Congo. I am accordingly inclined to agree with the learned respondent’s Counsel that, the only real and substantial issue that calls for determination in this appeal is whether the lower court had jurisdiction to entertain the claims of the respondent against the appellant.
A determination of this issue would dispose of the complaint by the appellant fully and finally. In substance, this is the same issue raised by appellant as issues 3.1.1. and 3.1.3 set out earlier. I accordingly would proceed to set out and consider the submissions of counsel along this line in the determination of the appeal.
Though the appellant’s counsel submissions were made in respect of the issues formulated by him, but I would summarily put them in the perspective of the issue identified above.
After setting out the provisions of section 20 of the Admiralty Jurisdiction Decree (hereinafter referred to as AJD) 1991, relied on by the lower court in its ruling, learned Counsel for the appellant said the section contemplates an agreement between parties to a case in court with a view to divesting the court of jurisdiction mid-stream and investing another tribunal or court with jurisdiction. Learned Counsel made reference to the definitions of the words “cause”, “action” and “matter” and argued that for an agreement to be null and void under section 20 of AJD, it has to relate to (a) any admiralty matter falling under this Decree and (b) it falls into categories (a) to (h) of Section 20 of AJD. According to counsel, the two conditions are conjunctive and must be present before section 20 of AJD could apply. He said they were not satisfied in the case before the lower court and so that court was wrong in applying the section to dismiss its objection. Counsel made reference to section 1(1) of AJD on the definition of “admiralty matter or admiralty jurisdiction of the court as well as section 2(1) on what a maritime claim means under the Decree. He then submitted that the lower court ought to have given effect to the agreement of the parties on arbitration citing Arbitration Law of Lagos State, Cap. 13, Laws of the Federation of Nigeria and Chitty on contract volume 1, 24th Edition and concluded that the case of Sonnar Nig Ltd v. M.S. Nordwind (1987) 4 NWLR (Pt. 66) 520, (1987) 1 A.N.L.R. 548 was not applicable to the case before the lower court.
It was also learned Counsel’s submission that the service of processes at addresses other than the parties, choice of residence was bad in law and renders the suit incompetent. He finally urged us to allow the appeal and dismiss the suit of the A-G., Osun State v. Int’l Breweries Plc. (2001) 7 NWLR (Pt.713) 647, Lawal v. Oke (2001) 7 NWLR (Pt.711) 88 And Togun v. Oputa (No.2) (2001) 16 NWLR (Pt.740) 597, the provisions of the section are to be given their ordinary meaning.
According to counsel for the respondent, articles 7 and 8 of the lease agreement by the parties cannot oust the jurisdiction of the lower court in the face of Section 20 of the AJD. Reliance was placed on the interpretation and analysis of the Section in the book;
“Nigerian Shipping Practice and Procedure” by Mbanefo, SAN. It was further argued for the respondent that the court can disregard the jurisdiction clause in an agreement once one of the parties resides in Nigeria under Section 20 of AJD. The cases of Sonnar (Nig.) Ltd v. Owners of Mv Nordwind (1987) 4 NWLR (Pt. 66) 520; (1987) 3 NSC 175, The Elefetheria (1969) 1 Llyod’s LR 237 and Z.S. Kantor v. Oshogbo Steel (1980) 2 NSC 377 at 579 were cited and relied on for the submission.
Learned Counsel for the respondent also argued the preliminary objection to ground No.3 of the notice of appeal. He contended that the proper service or non service on appellant was not a point taken in the decision of the lower court and therefore, the ground as well as issue No.3 formulated by the appellant not having arisen from the decision of the respondent.
For the respondent, it was submitted that section 20 of the AJD is clear and unambiguous, that once an agreement involves a person or party who is resident in Nigeria, any clause in such agreement which seeks to oust the jurisdiction of the Federal High Court will be null and void. On the authorities of NEPA v. Atukpor (2001) 1 NWLR (Pt.693) 96, A-G. Osun State v. Int’l Breweries PIc (2001) 7 NWLR (Pt.713) 647, Lawal v. Oke (2001) 7 NWLR (Pt.711) 88 and Togun v. Oputa (2001) 16 NWLR (Pt.740) 597, the provisions of the section are to be given their ordinary meaning. We are urged to strike out same and the cases of Akinbobola v. Plisson Fisko (1991) 1 NWLR (Pt. 167) 270, Oba v. Egberongbe (1999) 8 NWLR (Pt.615) 485; S.E.S Ltd v. Maersk (Nig.) Ltd. (2001) 4 NWLR (Pt.743) 517 and Sanyinna v. A.I.B. (2001) 4 NWLR (Pt.703) 355 at 303-4, were cited in support. In addition, we are urged to discountenance the submission of appellant’s counsel in paragraph 4.4, 5.1 and 5.2 of appellant’s brief on the ground that they have no bearing on the issues for determination as formulated by the parties.
On the respondents’ notice, it was submitted by learned Counsel that an application brought under Order 27 of the Federal High Court (Civil Procedure) Rules, 1976, is a demurrer application whereby the applicant is asking the court to dismiss the action on the basis of law or that the action cannot be maintained, even if all the facts alleged were admitted by the defendant. The procedure pre-supposes that the plaintiff had fully set out the facts of his case in a statement of claim. According to counsel, the endorsements in the writ of summons do not reveal sufficient facts as to what the respondents’ claim contains in its entirety. It was further contended that under the procedure, a statement of claim has to be filed before an objection could be brought for dismissal of an action and that the lower court was, even in such situation, precluded from examining or giving consideration to any other documents such as the lease agreement in arriving at a decision. Since the respondent had not filed a statement of claim, it was submission of counsel that the preliminary objection by appellant ought to have been dismissed on the ground that same was premature under the procedure provided by Order 27
The cases of The Gold Coast & Ashanti Electric Power Dev. Corp. Ltd. v. A.-G. of The Gold Coast (1937) 4 WACA 215 at 217. See also S.E.S. Ltd. v. Maersk (Nig.) Ltd. (2001) 17 NWLR (Pt.743) 517 at 544 to 547, Boothia Maritime Inc. v. Far East Mercantile Co. Ltd. (2001) 9 NWLR (Pt.719) 572 and Brawal Shipping (Nig.) Ltd. v. F. I. Onwadike Co. Ltd. (2000) 11 NWLR (Pt.678) 387 at 407 were cited as authorities on the issue.
Finally, we are urged to dismiss the appeal on the ground that section 20 of AJD clothes the lower court with sufficient jurisdiction to entertain the respondent’s suit.
In the reply brief filed on 3rd December, 2004, the learned appellant Counsel repeated his understanding and interpretation of section 20 of AJD, maintaining that it did not confer jurisdiction on the lower court since the lease agreement between the parties contain an arbitration clause and did not oust the jurisdiction of any country’s court for it to be void.
On the objection to ground No.3 on the notice of appeal, it was submission of learned Counsel for the appellant that the preliminary objection in the lower court was on ground that the court lacks jurisdiction to entertain the respondents’ suit and if the service of the originating process was flawed by being defective, null and void, the competence of the court or its jurisdiction to entertain the suit was also affected. He said the defective and/or wrongful service removes the jurisdiction of the court to entertain the suit and then made reference to Order 1, rule 19 and Order 3 rule 23 of the Court of Appeal Rules, which he submitted give this court the power to determine the real issues in appeal notwithstanding absence of notice of appeal or respondent’s notice.
Turning to the respondent’s notice, the learned Counsel for the appellant made reference to the respondent’s particulars of claim dated 1st September, 1998, and contended that the time limited for the filing of statement of claim, by respondent had lapsed by the 4th December, 1998 and so the appellant, by the application dated the 10th December, 1998, took the step postulated by Order 27(1). He then urged us to strike out the respondent’s notice for being baseless.
A good starting point is a consideration of the objection taken by respondent’s counsel to ground 3 on the appellant’s notice of appeal set out earlier. The basis of the objection is that the said ground of appeal did not arise from the decision of the lower court and so is incompetent. Generally, the now known position of the law on the issue is that a ground of appeal must relate, derive or arise from the decision appealed against. Since the foundation or reason for dissatisfaction with any decision of court is the basis upon which a party may exercise the right of an appeal, the grounds in support of such an appeal must of necessity, derive from the decision such a party was dissatisfied with. In other words, all grounds of an appeal from a decision must be tied down or related to the decision appealed against. Where a ground of appeal against a decision does not derive, relate or arise from the decision appealed against, such a ground would be incompetent since grounds of appeal could not be at large and outside of the decision complained of. In addition to the authorities cited by learned Counsel on the issue, see Alubankudi v. A.-G. Fed. (2002) 17 NWLR (Pt.796) 338, Gabari v. Ilori (2002) 14 NWLR (Pt.786) 78, Udeze v. Ononuju (2001) 3 NWLR (Pt.700) H 216, Coker v. UBA (1997) 2 NWLR (Pt.490) 641 and Alaka v. Oduntan (2000) 13 NWLR (Pt.685) 446, Ike v. Enang (1999) 5 NWLR (Pt.602) 261.
Ground No.3 on the appellant’s notice of appeal complains that the trial court did not consider the issue raised by appellant about the impropriety of serving the appellant with court processes at the MMA Ikeja, Lagos, contrary to Article 8 of their agreement. In its ruling, particularly at page 17 of the record, the lower court held inter alia thus:
“it is provided by article 8 of the aircraft lease agreement exhibit OL3 that the parties have chosen residence at their respective head office as mentioned in the preamble to the agreement.
The above provision as contained in Article 8 of the aircraft lease agreement as well as a few other provisions in the agreement brings the agreement within the contemplation of the provision of section 20 of the A.J.A. 1991 and in as much as they seek to oust the jurisdiction of this court the agreement is to that extent null and void. See The Nordwind case (supra). A court must jealously guide its jurisdiction as conferred on it under section 6(6)(a) of the Constitution as well as under the provisions of the A.J.A. 1991. I therefore hold that this court can entertain this suit in order to determine whether or not it has jurisdiction to deal with the matter – See Barclays Bank Ltd. v. C.B.N. (1976) NSCC 29; 6 SC 175.
Accordingly, the present application is hereby dismissed.”
Now, can it seriously be contended that the ground No.3 did not arise or relate to the above finding and decision of the lower court? The inescapable answer must be in the negative because glaringly, the finding of the lower court on Article 8 of the agreement between the parties shows that the issue of proper service was raised by the appellant and pronounced upon by that court. Accordingly, I find that ground 3 on the notice of appeal derived or arose from the decision of the lower court appealed against and therefore a competent ground of appeal. Consequently, issue 3 formulated from the ground is also competent.
In the result, the preliminary objection by the respondent to the said ground fails and is dismissed.
The substantive issue of whether the lower court has jurisdiction to entertain the respondent’s suit now comes next.
It may be recalled that the kernel of the appellant’s case is that for the lower court to assume jurisdiction under Section 20 of Admiralty Jurisdiction Decree, 1991, the suit must relate to any admiralty matter under the decree and also falls into categories (a) (h) of the section. Section 20 of the Admiralty Jurisdiction Decree provides thus:
“Any agreement by any person or party to any cause, matter or action which seeks to oust the jurisdiction of the court shall be null and void, if it relates to any admiralty matter falling under this Decree, and if –
(a) the place of performance, execution, delivery, act or default is or takes place in Nigeria; or
(b) any of the parties resides or has resided in Nigeria; or
(c) the payment under the agreement (implied or express) is made or is to be made in Nigeria; or
(d) in any admiralty action or in the case of a maritime lien, the plaintiff submits to the jurisdiction of the court and makes a declaration to that effect or the rem is within Nigerian jurisdiction; or
(e) It is a case in which the Federal Military Government or the Government of a state of the Federation is involved and the government or state submits to the jurisdiction of the court; or
(f) there is a financial consideration accruing in, derived from, brought into or received in Nigeria, in respect of any matter under the admiralty jurisdiction of the court; or
(g) under any convention, for the time being in force to which Nigeria is a party, the national court of a contracting state is either mandated or has a discretion to assume jurisdiction;
(h) in the opinion of the court, the cause, matter or action should be adjudicated upon in Nigeria.”
It is common ground between counsel, and I agree, that these provisions are clear and unambiguous and should therefore, be accepted cannon of interpretation, be given their ordinary and simple meaning since no absurdity would result thereby. In addition, there appears to be no dispute on the facts that the respondent’s suit relates to an admiralty matter under the decree and that it falls into categories (a) – (h) of section 20 thereof.
This is because under section 1(1)(a) of the decree, the suit falls into the admiralty jurisdiction of the lower court. The sections provides as follows:
“1(1) The admiralty jurisdiction of the Federal High Court (in this Act referred to as “the court”) includes the following, that is:
(a) jurisdiction to hear and determine any question relating to a proprietary interest in a ship or aircraft or any maritime claim specified in section 2 of this Act.”
(italics mine).
The lease agreement between the parties is in respect of an aircraft and so falls squarely within these provisions.
Furthermore, the suit also on the face, falls into categories (a), (b) and (f) of section 20 since the aircraft was delivered in Nigeria, the respondent resides in Nigeria and financial consideration received in Nigeria by respondent, respectively.
Accordingly, the respondent’s suit has undoubtedly fallen under and satisfied the two limbs of section 20 as contended by the appellant’s counsel.
The only area of disagreement about the application of section 20 between counsel is as to their respective understanding and interpretation of the meaning of opening words of the section. These words are “Any agreement by any person or party to any cause, matter or action …”
On the one hand, the appellants counsel’s understanding and interpretation of these words is that they relate to a cause, matter or action with which the court is already seised. In other words, it contemplates an agreement between parties to a case in court with a view to divesting the court of jurisdiction mid-stream.
On the other hand, the respondent counsel’s understanding of the words is that once an agreement involves a person or party, who is resident in Nigeria, any clause which seeks to oust the jurisdiction of the court would come under section 20 and be null and void.
It would appear to me that this difference between counsels arose out of an engagement in sophistry particularly by appellant’s counsel in his interpretation of what he initially conceded to be clear, unambiguous and unequivocal provisions of section 20 of Admiralty Jurisdiction Decree. The words in the section being simple, clear and even laconic should be given their ordinary, literary and grammatical meaning. See A.-G. Fed., v. Guardian Newspapers (1999) 9 NWLR (Pt.618) 187 at 264, De Lluch v. S.B.N. (2003) 15 NWLR (Pt. 842) 1; Niger Progress Ltd. v. North East Line Corporation (1989) 3 NWLR (Pt. 107) 68 and Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1.
The ordinary and literal meaning of the words is that any agreement entered into or made by any person, whether a party to any cause, matter or action, or not which seeks to oust the jurisdiction of the court shall be null and void, if it relate to admiralty matter and falls into any of the categories set out in the section.
Though the appellant had made heavy weather about the arbitration clause contain in the lease agreement between the parties in his brief of argument, the lower court did not make any finding or pronouncement on it. In any event, the arbitration clause did not seek to oust the jurisdiction of the court as all it did was to allow parties avenue and possibilities of setting disputes amicably out of court. The position of the law is that an arbitration clause in agreements generally does not oust the jurisdiction of court or prevent the parties form having recourse to the court in respect of dispute arising thereform. A party to an agreement with an arbitration clause has the option to either submit to arbitration or to have the dispute decided by the court. The choice of arbitration does not bar resort to the Court to obtain security for any eventual award. See the “N.V. Scheep v. MV ‘S araz (2000) 15 NWLR (Pt.691) 622. (2001) FWLR (Pt.34) 543 at 596-SC, Obembe v. Wemabod Estate (1977) 5 SC 115 at 131, K.S.U.D.B. v. Fanz Ltd. (1986) 5 NWLR (Pt.39) 74 at 86-7. But assuming that the arbitration clause in the agreement between the parties in this appeal seeks to oust the jurisdiction of the court, then it further supports the ruling of the lower court that the lease agreement comes within the purview of Section 20 and therefore null and void.
Learned Counsel for the respondent had on his part restated the now established principle of law on requirements for the assumption of jurisdiction by the court. He cited the cases of Madukolu v. Nkemdilim (1962) All NLR (2) 581; (1962) 2 SCNLR 341 and Labaran v. Okoye (1995) 4 NWLR (Pt.389) 303 at 307 in which the requirements were set out and submitted that section 20 of the Admiralty Jurisdiction Decree applies to the agreement between the parties as long as Articles 7 and 8 seek to oust the jurisdiction of the lower court.
From the findings, I have made earlier on the application of Section 20 to the respondent’s suit, I agree with the lower Courts ruling that it has and possess the requisite statutory jurisdiction to entertain the respondent’s suit. The real intention and combined effect of Articles 7 and 8 of the aircraft lease agreement entered by the parties to this appeal was and remains to oust the jurisdiction of the lower court in respect of disputes arising from the said agreement. These article were the grounds upon which the appellant objected to the jurisdiction of the lower court to entertain the suit in its preliminary objection; thus, clearly manifesting that intention and effect. To that extent, I agree the decision of the lower court that the agreement comes within the contemplation of provision of section 20 of the Admiralty Jurisdiction Decree, 1991, which renders it null and void.
Now, the respondent has also filed a respondent’s notice seeking that the decision of the lower court be affirmed, on ground other than that relied on by the lower court. The crux of the other ground, as seen elsewhere within judgment, is that appellant’s preliminary objection was premature since respondent had not filed a statement of claim because the application was brought under Order 27 of the Federal High Court (Civil Procedure) Rules; known as demurer proceedings. After setting Order 27, learned Counsel, urged us to affirm the decision of the lower court and once again to dismiss the appeal.
Appellants’ counsel in reply said the particulars of the claim contained on the endorsement of the summons taken out by respondent contain the details of the claims made against the appellant.
It was submission of counsel that the step taken after service of the summons and the notice of the motion of the respondent by the appellant were postulated by Order 27(1) of the Federal High Court (Civil Procedure) rules, which provides thus:
“27(1) Where a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendant, he may raise this defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.”
The particulars of claim by the respondent which were served on the appellant were as follows:
“Particulars of Claim”
The plaintiffs claim is for special damages from the defendant as follows:
- The sum of $169,794 (One Hundred and Sixty Nine Thousand, Seven Hundred and Ninety Four US Dollars) being consideration for the lease of Cargo Aircrafts to the defendant by the plaintiff.
- The sum of $16,979 (Sixteen Thousand Nine Hundred Seventy Nine Dollars) as solicitors’ fees and expenses. And interest on the said sum at the rate of 21% from the 1st day of September, 1998, until judgment is given.”
In addition to the above particulars of claim, the respondent also filed a motion dated 24/11/98 in which he asked the lower court for the following orders:
- An order that security be given in the sum of $169,794 US Dollars for the appearance of the defendant to answer and satisfy any judgment that may be passed against it in this suit.
- An order that the aircraft of the defendant Boeing 737 with Reg. No.9Q CNK be prevented from leaving jurisdiction as security for the sum of $169,794 US Dollars for the appearance of the defendant to answer and satisfy any judgment that may be passed against it in this suit.
Or in the alternative
- An order directing that the defendant do deposit with the deputy sheriff of this Honourable Court or within the jurisdiction of this court any valuable property sufficient to satisfy the claim against it in this suit.
- An order that the orders of this Honourable Court be served on:
(i) Airport Commandant of the Murtala Mohammed International Airport, Ikeja, Lagos.
(ii) Airport Manager of the Murtala Mohammed International Airport, Ikeja, Lagos.
And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
“Dated this 24th day of November, 1998.”
Both the summons containing the particulars of claim and the motion were fixed for hearing on the same date, i.e. 7/12/98. In response to the motion, the appellant filed the preliminary objection on the 10/12/98, on ground of lack of jurisdiction on the part of the lower court to entertain the suit on which the motion by respondent was predicated.
The appellant used and relied on the particulars of the claim served on it to respond to the motion filed by the respondent to contend that even if the allegations of the respondent in the summons were admitted; it would not be entitled to any decree against the appellant on the ground of want of jurisdiction. Order 27(1) above talks of “allegations” and not statement of claim and in the circumstances of this appeal, the particulars of claim by the respondent in my view, are such allegations to which the appellant conceived he has a good legal defence to and therefore applied that the suit of the respondent be dismissed. The appellant did not have to wait for the respondent to file a statement of claim which would only give further details of how the claims arose before responding to the motion in which far reaching orders were sought from the court by the respondent against it.
It needs to be pointed out here that the main aim of statement of claim is to convey the claim and the accompanying case of the plaintiff concisely to the defendant so that he can file a statement of defence, if need be, and not be taken by surprise. See George v. Dominion Flour Mills (1963) 1 All NLR 71, (1963) 1 SCNLR 117 and Salami v. Oke (1987) 4 NWLR (Pt.63) 1, U.B.N. v. Nnoli (1990) 4 NWLR (Pt. 145) 530 at 546. The sole purpose of the particulars of the claim by the respondent which were served on the appellant was to let it know, concisely what the case of the respondent was so that a statement of defence could be filed if need be. In reaction to the claims, the appellant raised the issue of want of jurisdiction on the part of lower court to entertain these claims of the respondent.
My firm view is that the step taken by the appellant was not premature or strictly a demurrer proceedings because he did not challenge the claims, but the jurisdiction of the lower court to entertain them. If the respondent had not filed the motion asking for the orders against appellant but rather had proceeded to pursue the claims in the summons, it may be heard to bring in demurrer proceedings when appellant attempted to have the suit dismissed under Order 27 before the filing of pleadings on grounds other than want of jurisdiction. The filing of that motion entitled the appellant to react the way it did to forestall rendering any legal defence it conceived to the respondent’s suit, still born or worthless. I accordingly in these premises find myself in agreement with the appellant’s counsel that by the application dated 10/12/98, in which it raised objection to the suit on ground of jurisdiction, the appellant took the step postulated or envisaged by Order 27(1). Accordingly, I do not find merit in the respondent’s notice and dismiss same.
In the final result, for the reasons given earlier, I am unable to find merits in this appeal. The appeal therefore fails and is dismissed.
The decision of the lower court is hereby affirmed with the award of the sum of N7,000.00 assessed as costs in favour of the respondent.
Other Citations: (2005)LCN/1794(CA
