Introduction

In a watershed decision in Akeredolu v Abraham(1) the Supreme Court appears to have overruled itself on the question of what constitutes 'outside jurisdiction' in relation to the Admiralty Court (Federal High Court) for the purpose of determining whether leave of court is required to effect service of an originating process.

Service of an originating process is a condition precedent for the exercise of a court's jurisdiction. It is governed by the Sheriffs and Civil Process Act and the rules of court. Where a defendant is resident within the jurisdiction of the court, an originating process may be served without the need for leave. However, where the defendant is resident outside the court's jurisdiction, leave of court must first be obtained. In addition, the writ of summons must:

  • be properly endorsed for service outside jurisdiction; and
  • give the defendant a minimum of 30 days to answer to the claim.

These requirements(2) are mandatory and non-compliance with them invalidates the writ. In this context, the question of what constitutes 'outside jurisdiction' becomes fundamental.

Previous case law

Until the Supreme Court's recent decision, the position of the law had been that laid down in Owners of the MV Arabella v Nigeria Agricultural Insurance Corporation.(3) Here, the suit was commenced in the Federal High Court, Lagos via writ of summons which was served on the respondent in Abuja. The respondent filed a preliminary objection challenging the writ for non-compliance with the requirements for service outside jurisdiction in line with Section 97 of the Sheriffs and Civil Process Act. The trial court voided the writ and its service thereof, dismissing the suit. The Court of Appeal affirmed this decision but substituted the order of dismissal with an order striking out the suit.

Dissatisfied with the decision, the appellant appealed again. In dismissing the appeal, the Supreme Court held (among other things) that pursuant to Section 97 of the Sheriffs and Civil Process Act, every writ of summons for service outside the state in which it was issued must – in addition to any endorsement of notice required by the law of such state – have endorsed thereon a notice indicating:

  • that the summons is to be served out of the state; and
  • the state in which it is to be served.

The court went on to hold that failure to endorse the required notice on a writ was a fundamental defect rendering the writ incompetent. It further held that:

  • leave was required for service of a writ outside jurisdiction; and
  • this requirement applied to the state high courts and the Federal High Court alike.

The decision in MV Arabella was widely criticised, and rightly so. The court paid no attention to the fact that the Federal High Court was not in existence when the Sheriffs and Civil Process Act was enacted and therefore did not contemplate that its provisions would apply to the court. The court also overlooked the express provisions of the Federal High Court Act and its Rules, which state that 'outside jurisdiction' means 'outside the Federal Republic of Nigeria'. Instead, it applied to the Federal High Court principles applicable only to the state high courts. Despite general dissatisfaction with the decision, lower courts in the judicial hierarchy were constrained to abide by it in line with the doctrine of stare decisis.

Recent decision

In Akeredolu v Abraham the Supreme Court altered its position, thereby appearing to implicitly overrule MV Arabella. The suit was commenced by the first respondent in the Federal High Court, Abuja. To save time, the first respondent sought and was granted an order of court to serve the originating processes through substituted means on the appellant, who was resident in Owo, Ondo State.

Subsequently, the appellant brought an application to set aside the order of the court contending (among other things) that the court did not have the requisite jurisdiction to grant the order as he was resident in Ondo State, outside the jurisdiction of the court in Abuja. The trial court dismissed the application and this was affirmed by the Court of Appeal.

On further appeal, the Supreme Court held as follows:

By virtue of Section 19 of the Federal High Court Act and Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules 2009, the Federal High Court has jurisdiction throughout the Federation and service out of jurisdiction is defined as out of the Federal Republic of Nigeria. Owo in Ondo State is within Nigeria and therefore within the jurisdiction of the Federal High Court sitting in Abuja.

The court further held:

In respect of processes issued in the Federal High Court to be served on a defendant at an address in any State of the Federation or of the Federal Capital Territory, it is one to be served within the territorial jurisdiction of the Federal High Court which comprises all the 36 States and the Federal Capital Territory as set out by the Constitution of the Federal Republic of Nigeria 1999 (as amended). What I am endeavouring to say is that the territorial boundaries of the Federation of Nigeria are the limits of the territorial jurisdiction of the Federal High Court as its processes apply as a matter of law throughout the country as the processes of a single Court issued within jurisdiction. Thus, all its processes including the initiating processes such as writ of summons are to be regulated and governed by the Rules made by the Chief Judge to regulate the practice and procedure in the Court pursuant to the powers vested in him by Section 254 of the Constitution.

While the court did not specifically refer to MV Arabella in its recent decision, the facts of both cases do not materially differ. The law is settled that where there are conflicting decisions of the Supreme Court, the more recent will prevail over the older ones.(4) This decision puts to bed the decade-long unease surrounding the territorial jurisdiction of the Admiralty Court in the wake of MV Arabella. It also clarifies the Supreme Court's stance on the matter and brings it into alignment with the express provisions of the Federal High Court Act and its Rules.

Thus, Section 97 of the Sheriffs and Civil Process Act no longer applies in relation to the Admiralty Court, where a writ of summons is issued in one state for service in another state within Nigeria. However, MV Arabella would still apply to writs issued in the Admiralty Court for service outside Nigeria.

For further information on this topic please contact Enare Erim at Akabogu & Associates by telephone (+234 1460 55550) or email (enare@akabogulaw.com). The Akabogu & Associates website can be accessed at www.akabogulaw.com.

Endnotes

(1) (2018) LPELR-44067(SC).

(2) Contained in Sections 96, 97 and 99 of the Sheriff and Civil Process Act.

(3) (2008) 11 NWLR (Pt 1097) 182.

(4) Kofa v Kaita (2011) LPELR-8952(CA).

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