It is not often that the final court gets to review its decisions. When it does make a departure, and a welcome one at that, from a previously taken position of law, it is an event that is greeted with much excitement by many an enthusiastic legal commentator. The moment is made even more profound when the decision being departed from had appeared flawed from the outset and was accorded an unintended wide amplitude by subsequent decisions that dutifully followed the pattern.
11 years after the fact, and several abiding decisions in tow, this writer’s attention was called to one such recent decision of the Supreme Court. In what appears a biting departure from its previously holding, the Supreme Court held decisively that an originating process issued by the Federal High Court in one territorial jurisdiction (within Nigeria) cannot be considered to be service outside jurisdiction when served in a different territorial jurisdiction and will thus not require to be endorsed for service outside a State and marked accordingly as a concurrent writ (as stipulated by sections 97 & 98 of the Sheriffs & Civil Process Act Cap S6 LFN 2004 [hereafter, SCPA]). This decision is the unreported decision in Appeal No. SC. 341/2019 John Hingah Biem v Social Democratic Party & 2 Others, in which judgment was delivered on Tuesday, 14 May 2019. First things first, it is helpful, in putting things in their proper perspective, to offer a word or two about the position before now.
The enduring sails of MV Arabella
It began exactly eleven years ago when the Supreme Court, in Owners of the M.V. Arabella v. N.A.I.C. (2008) 11 N.W.L.R. (pt. 1097) 182, judgment delivered on 16 May 2008, set aside the writ of summons which was not ‘properly’ issued and served outside the territorial jurisdiction of the Federal High Court [hereafter, FHC] for failure to seek leave of court. Emphasis was placed on the provisions of Section 96(2) of the SCPA and Order 10 Rule 14 of the Federal High Court (Civil Procedure) Rules, 1976. The arguments on the other side, were that: (i) the FHC was not within the intendment of the SCPA as the Court was not in existence when the SCPA was made into law; and (ii) the procedural stipulations in the SCPA, even if applicable to the FHC, relate to court processes meant for service ‘out of Nigeria’(substitute for ‘out of jurisdiction’). This, in distinction from service ‘out of the issuing territorial jurisdiction, for service within yet another territorial jurisdiction within the nationwide jurisdiction of the federal (high) court’.
The holding from MV Arabella soon met many an otherwise meritorious action filed at the Federal High Court with a roughshod sail indeed. Navigating the rough waters of timeous procedural objections on any of the grounds often associated with the holding from Arabella, soon became most perilous. Counsel would regularly object that: (i) leave of court was not obtained by a plaintiff who is suing a defendant resident in another part of Nigeria; or that (ii) the writ for service in that other part of Nigeria away from the territorial jurisdiction of the issuing court was not marked ‘concurrent’. In many cases, the procedural objections simply elevated an unimportant topic in relation to matters of form and procedure, to the point that real issues submitted for adjudication became obscure and unattended to. This was the concern of the present commentator in a review of a Court of Appeal decision where the precedent-based holding from MV Arabella had dealt a wounding imprint, running the substantive cause roughshod (http://www.mondaq.com/Nigeria/x/504074/trials+appeals+compensation/The+Decision+In+Nigeria+Maritime+Administration+Safety+Agency+Anor+v+Noble+Drilling+Nigeria+Limited+From+Precedent+To+Precedent
Biem v Social Democratic Party to the rescue?
In Biem v SDP the pointed question in the main appeal was whether the failure by the registrar to mark an originating process as ‘concurrent’, was capable of voiding the originating process. This is a stipulation of section 98 of the SCPA for originating processes issued concurrently for service outside the issuing court of the ‘State or the Capital Territory’ (the exact words of the statute). This was slightly distinguishable from the exact fact scenario in Arabella. There, the defect turned on the endorsement provision in section 97 and the applicable provision of the rules of court in furtherance of the provision of section 96 (2) of the SCPA. The Supreme Court (in Biem) nonetheless felt able to address the common problem of the applicability of the SCPA to processes issued for service within the territorial jurisdiction of a single FHC.
The apex Court roundly rejected the proposition that the Sheriffs and Civil Process Act is the principal (and, only) legislation which deals with the service of court processes of all courts in Nigeria including the Federal High Court. Justice Akaahs who wrote the leading judgment, intoned a discernable ratio decidendi at pp.43-44 of the judgment thus: ‘The service of any process issued by the Federal High Court can be carried under the Sheriffs and Civil Process Act, if such service is to be executed outside the territory of Nigeria. Order 6 Rule 31 of the Federal High Rules interprets outside jurisdiction to mean outside the Federal Republic of Nigeria. Thus to hold that an originating summons which was issued out of the registry of the Federal High Court, Warri which was addressed for service at Abuja outside Delta State where the originating summons was issued from should be nullified because it did not comply with section 97 of the Sheriffs and Civil Process Act as this Court did in Izeze v INEC (2018) 11 NWLR (Pt. 1629) 110 at 132 did not take cognisance of Section 19 of the Act and Order 6 Rule 31. I am of the considered view that the Originating Summons issued by the Federal High Court, Makurdi which is to be served in Abuja cannot be considered to be service outside jurisdiction and therefore does not require to be endorsed as a concurrent Writ’
A new dawn?
Roundabout present day, the apex Court in an oblique obiter hint in Akeredolu v. Abraham (2018) LPELR-44067 (SC), judgment delivered 23rd of March, 2018, explained ‘out of jurisdiction’ for the purpose of service of originating processes issued from the Federal High Court thus: ‘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 problem is MV Arabella was not brought into sharp focus, and the issues were equally dissimilar on other fronts. Enter: Boko v Nungwa.
In Boko v Nungwa, decision made on 13 July 2018, reported as (2019) 1 NWLR (Pt.1654) SC 395, the apex Court was confronted with a number of issues for determination. The related issues of whether the portions of the Federal High Court (Civil Procedure) Rules 2009 dealing with service and execution of process derived their force from sections 94 and 96(2) of the SCPA, and whether in view of the provisions of the Federal High Court (Civil Procedure) Rules 2009 the case of Arabella v NAIC was still applicable to vitiate an originating process, were raised by the appellant, and adopted by the Court as Issues No. 2 & 3. The leading judgment, delivered by Okoro JSC, resolved the main appeal, answering in the affirmative the jurisdictional question raised as Issue No.1. Having resolved the appeal on an all-encompassing jurisdictional point, the Court, understandably, did not as much as consider the other issues. The other Justices on the panel, coram Rhodes-Vivour, Sanusi, Bage JJSC, with the exception of Peter-Odili, wrote terse concurring opinions.
Peter-Odili JSC agreed with the leading opinion, but in an instructive obiter which now appears to have ignited and set the decision in Biem on a firm footing, considered the other twin issues (2 & 3) highlighted above and concluded thus: (i) ‘..as far as service and execution matters are involved, the Federal High Court does not come within the ambit of sections 91 and 92(2) of the Sheriffs & Civil Process Act’ (pg.444 of the Report); and (ii) Arabella v NAIC is inapplicable in present context ‘since it was decided on the basis of section 97 of the Sheriffs and Civil Process Act and interpreted alongside the Federal High Court (Civil Procedure) Rules, 1976 which have been repealed. The extant Rules of the Federal High Court being the Federal High Court (Civil Procedure) Rules 2009 wherein the requirement for ‘leave to issue’ was removed.’ (pg.445 of the Report).
Without expressly saying so, even as there was an oblique reference to Boko v Nungwa in Biem v Social Democratic Party, the apex Court appeared not to have pointedly relied on Boko v Nungwa; in view of the fact that the illuminating obiter statements of Peter-Odili JSC in that case did not form part of the leading judgment. As the Supreme Court has said, anything said in a concurring judgment by any of the Justices of the Supreme Court which is not in the leading judgment is regarded as an obtier dictum. Idise v Williams International Ltd (1995) 1 NWLR (Pt. 370) 142 at 150 G. Be that as it may, the relevance/foresightedness of well-thought out obiter statements (as Odili JSC’s here) becomes glaring when future decisions tow that lonely path of the jurist to chart a unanimously held course/opinion in causes before the court. The obiter dicta of Lord Atkin in Donoghue v Stevenson (1932) UKHL 100 on ‘neighbour principle’ later became the benchmark adopted by later judges to develop the law of negligence.
Biem v Social Democratic Party is the latest authority on the issue(s) under reference. Inevitably, the question which arises is: has the Supreme Court finally and unequivocally departed from its previous holding in MV Arabella? The question does not lend itself to an easy answer. Suffice to say that it is pertinent to introspect a little further.
First, it takes a seven-member panel (that is, a full court) of the Supreme Court of Nigeria to overrule any previous decision of the court. Sodeinde Brothers (Nig.) Ltd v ACB (1982) 6 SC 137 at 139. Applied to the case under review, Biem, just like Arabella, was a 5-man panel.
Secondly, Biem, on the easily distinguishable fact pattern, could easily have been argued and determined on other grounds. But that is another matter altogether. For the present purpose, it is safe to assume that the facts do not materially differ on the underlining issue as to the applicability of the SCPA with regards to service on a defendant outside the immediate jurisdiction of the issuing court. But even at that, Arabella was not frontally in focus. The Court illuminated the discussion bringing into sharp focus the provision of section 19 of the Federal High Court that makes for a single jurisdiction of the Federal High Court as well as power vested in the Head of Court by the Constitution to make Rules of Court. The Court, in what appears an ingenious attempt to depart from its previous position in MV Arabella, concluded that its decision in Izeze v INEC (2018) 11 NWLR (Pt. 1629) 110 at 132, failed to take cognisance of these things.
Izeze v INEC (2018) 11 NWLR (Pt. 1629) 110 at 132, was decided by the apex Court on April 13, 2018. One of its central issues was whether an originating summons issued out of the registry of the Federal High Court sitting in Warri for service on the defendants at their addresses in Abuja without compliance with the provision of section 97 of the SCPA, was properly issued and served. The Court in that case held the defect was an irredeemable and fundamental vice. Izeze was however not alone. And that was equally not the only flawed decision on the matter under reference. PDP v INEC is a related appeal to Izeze’s. Though not referred to, or considered in Biem v SDP, PDP v INEC, with a similar holding as in Izeze’s, was also decided on April 13, 2018 (same day as Izeze’s). Whilst Izeze’s is reported in Part 1629 of the Nigerian Weekly Law Reports (Issue for 30 July 2018), PDP v INEC is reported as (2018) 12 NWLR (Pt 1634) SC 533, Issue 3 September 2018. In PDP v INEC, the apex Court, as in the other cases, went as far as pronouncing an originating summons issued at the registry of the Federal High Court in Warri for service in Abuja without the endorsement in section 97 of the SCPA as worthless and void! Yes, the Court pronounced the originating process, and not service of same VOID by reason of failure to endorse properly FOR SERVICE. This, apparently, is very much against the grain of the substance of the illuminating decision of the selfsame Supreme Court – sitting as a FULL COURT – in Odu’a Investment Co. Ltd. V. Talabi (1997) 10 NWLR (PT. 523) P.1 to the effect that it is the ‘purported service’ and not the writ that will be set aside in the event of a finding of defect as to service.
Onnoghen CJN (as he then was) also emphasized the distinction in Mato v Hember (2018) 5 NWLR (Part 1612) SC 258 when he held thus ‘With regards to section 96 and 97 of the Sheriffs & Civil Process Act (Supra) the court below mixed up the issues of filing of process, issuance and service of process. I agree, without reservation that service of writ or summons on the defendant is very fundamental to assumption of jurisdiction by a court and where leave is required before service, it must be sought and obtained before such service can be effective. Leave is nothing other than the permission from the court to serve outside jurisdiction. Once granted, service can be carried out. Any service outside jurisdiction that is done without leave renders the service a nullity. See Skenconsult Nig. Ltd v Ukey (1981) 1 SC 6; Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250 and Nwabueze v. Obi – Okoye (1988) 4 NWLR (Pt. 91) 664.
The question that may be asked is whether the filing of process in court and service of the said process are the same. Without much ado, they are not the same. Thus, a party who seeks to place his matter before a court of law must first approach the registry of the court and file same in accordance with the rules of law, as in this case, requires that leave be obtained (sic). The court below seems to have taken the issue of leave to serve outside jurisdiction to mean leave to file the process in court. This is where the lower court erred.
If one takes a look at section 96 and 97 of the Sheriffs & Civil Process Act (supra) it will reveal that they come under a sub title –“Service of Process.” It does not come under filing of process.”
These are two separate things. One relates to service of process while the other relates to filing of same. The court below went into error when it accepted the argument of the respondents that an originating process at the Federal High Court meant to be served outside jurisdiction can only be said to be filed when leave to serve such process on the defendants is granted and not the actual date it was filed…..Before I leave this issue, I must state that a distinction must be made among these three processes i.e. filing, issuance and service. They come in that order. If nothing is filed, nothing can be issued and served. You cannot apply for leave to serve what is not before the court.’
At the risk of digression, the point being made here is that unless this position is revisited at the earliest available opportunity; our adjudicating system being precedent-based, this new position will also likely engender a new wave of decisions pronouncing as void any originating process defective as to service, as it is not open to a lower court to disagree with the decision of the higher court on any point even if the decision of the higher court was reached per incuriam. Afterall, in the case of any conflict in the decisions of the higher court, the lower courts are at liberty to choose any of the conflicting decisions, whilst another (much more overwhelming) position is that the lower court is bound to apply the later in time of the conflicting decisions. The decisions under reference are relatively new decisions of the Supreme Court.
Worrisomely, all the cases highlighted here were election or pre-election cases that went all the way to the Supreme Court, with decisions rendered majorly between 2018 and 2019. With due respect to the Court and considering the relatively short span of time between the decisions, this should ordinarily provide an opportune time to discuss, review and avoid conflicting positions in decisions bearing on future cases of similar facts pattern, and thus help to avoid the resulting effect where the law reports are littered with cases with divergent views of the Supreme Court on similar fact patterns.
In the final analysis, Biem’s decision is a welcome addition to a growing body of case law concurring on the points that (i) the FHC is not within the intendment of the SCPA for service as it was not in existence when the SCPA was made; (ii) ‘out of jurisdiction’ for the purpose of service of originating process issued from the Federal High Court means ‘out of Nigeria’; and (ii) Arabella is authority for what it says; given the peculiar fact situation of the provisions of the SCPA interpreted alongside the applicable Rules of Court as at the time the decision was handed down. On the strength of the potent arguments that the provision of the applicable (1976) Rules of Court considered in Arabella is dissimilar from the (2009) Rules of Court that came up for consideration in Biem , the discernable ratio, arguably, is that the Court in Biem distinguished the facts in Biem from the position in Arabella and subsequent decisions in that line. The Court in the latter decision did not ‘overrule’ its earlier decision in Arabella. For as Oputa, J.S.C. said in Adegoke Motors v. Adesanya 3 NWLR (Pt.109)250 at 275 : “I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context.”
–Folabi Kuti is a Partner in the law offices of Perchstone & Graeys.