In a watershed decision of the Supreme Court in the case of AKEREDOLU V. ABRAHAM & ORS1 the apex court appears to have overruled itself on the question of what constitutes “out of 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 need for leave. However, where the Defendant is resident outside jurisdiction, leave of court must first be obtained. In addition, the writ of summons must be properly endorsed for service outside jurisdiction and also give the Defendant a minimum of thirty days to answer to the claim. These requirements2 are mandatory in nature and non-compliance with them invalidates the writ. It is within this context that the question as to what constitutes “outside jurisdiction” becomes fundamental.
Until the recent decision of the court, 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 further appealed. In dismissing the appeal, the apex court held inter alia that by Section 97 of the Sheriffs and Civil Process Act, every writ of summons for service out of the state in which it was issued must, in addition to any endorsement of notice required by law of such state, have endorsed thereon, a notice indicating that the summons is to be served out of the state and in which state 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 that renders the writ incompetent. It further held that leave was required for service of a writ out of jurisdiction and that this requirement applied to the State high court and the Federal High Court alike.
According to Akabogu and Associates, the decision in the MV Arabella was widely criticized and rightly so. Their Lordships 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. Also, the Court overlooked the express provisions of the Federal High Court Act and its Rules which state that ‘out of jurisdiction’ means ‘out of the Federal Republic of Nigeria’. Instead, it simply applied to the Federal high court principles only applicable to the State high court. 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.
In AKEREDOLU V. ABRAHAM & ORS supra, the Supreme Court altered its position, appearing to have implicitly overruled the MV Arabella. The suit was commenced by the 1st Respondent in the Federal High Court, Abuja. In order to abridge time, the 1st Respondent sought an order of court to serve the originating processes through substituted means on the Appellant who was resident in Owo, Ondo State and same was granted. Further to this, the Appellant subsequently brought an application to set aside the order of the court contending inter alia, 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 thus:
“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 MV Arabella was not specifically referred to by their Lordships in the 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 later-in-time will prevail over the older ones.4 The recent decision of the apex court puts to bed the decade-long unease surrounding the territorial jurisdiction of the Admiralty Court in the wake of the decision in the MV Arabella. The decision clears the air on the apex court’s stance in the matter and brings it alignment with the express provisions of the Federal High Court Act and its Rules. Thus, the requirement of Section 97 of the Sheriffs and Civil Process Act no longer apply, in relation to the Admiralty Court, where a writ of summons is issued in one state for service in another state within Nigeria. The MV Arabella would however still apply to writs issued in the Admiralty Court for service outside Nigeria.