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GEN. ELECT. CO. AND OTHERS
IN THE SUPREME COURT OF NIGERIA
20TH APRIL, 1979
SUIT NO. SC 57/1978
 NSCC 51
BEFORE THEIR LORDSHIPS
Chief F.R.A Williams (Ladi Williams with him), – for the Applicant
COMMERCIAL LAW – CONTRACT:- Application for enforcement of international sales agreement – Representation Agreement covering transportation market – Claim for recovery of commission due and payable – How treated
DEBTOR AND CREDITOR:- Recovery of commissions due on an International Sales Representation Agreement plus interest – Litigation – Service of writs and entering of appearance of parties connected therewith
PRACTICE AND PROCEDURE – ACTION:- Service of writs – Leave to appeal from interlocutory decision of High Court – Where Writ of Summons and Statement of Claim intended for a defendant is served on wrong party – Where defendant enters conditional appearance – Whether amounts to waiver of right to service of writs – Application by wrongly served party, as an Intervener, to set aside service of Writ at instance of named defendant – Relevant considerations
PRACTICE AND PROCEDURE – APPEAL:- Appellate powers of the Federal Court of Appeal – Constitutional basis – Exercise of same over appeal arising from State High Court
ANIAGOLU, J.S.C. (Delivering the Judgment of the Court):
Leave to appeal against the Ruling of the Federal Court of Appeal dated 12th December, 1978, in the above case was granted to the plaintiff/applicant on 7th March 1979, and after hearing argument of counsel on either side, this court, on 26th March 1979, set aside, with costs, the Order of the Federal Court of Appeal-
(a) granting leave to appeal to the General Electric Company of U.S.A. Nigeria Ltd. from the order of the High Court of Lagos dated 28th September 1977 dismissing the application of the said General Electric Company of U.S.A. Nigeria Ltd. to set aside services on them of the writ of summons in the above case;
(b) extending the time within which the said company should appeal;
(c) granting stay of proceedings of the substantive suit in the High Court pending the determination of the appeal, and reserved the reasons for the judgment to a later date. We now give the reasons.
It is necessary to give a brief narrative of the facts which constitute the background to the plaintiff’s application in these proceedings and, in order to avoid any possible confusion by reason of similarity in the names of the 1st defendants and the General Electric Company of U.S.A. Nigeria Ltd., to designate the latter appropriately as ‘the Interveners’ and to refer to them throughout, in this Ruling, as such.
The writ of summons in the substantive case, issued on 19th May 1977, contained the endorsements of the plaintiff’s claims as follows:-
‘The Plaintiff claims –
(i) against the defendants jointly and severally a declaration that the International Sales Representation Agreement covering transportation market and dated 5th August, 1975, and made between the 1st defendant of the one part and the New Africa Technical and Electrical Company Limited of the other part was never validly terminated and did not expire until June 30, 1976.
(ii) against the 1st defendant the sum of US $720,460.00 (or its equivalent in Nigerian Currency) being commission payable under the before mentioned agreement by the 1st defendant to the Africa Technical & Electrical Company Limited plus interest at ten percent from the date of default to the date of judgment.
(iii) against the defendants jointly and severally a declaration that each and every other agreement between the 1st defendant on the one hand and the New Africa Technical and Electrical Company Limited on the other in respect of which commissions are payable to the latter Company remains or remained valid until the date of their expiration and were never validly terminated or otherwise than by effluxion of time.
(iv) against the 2nd and 3rd defendants jointly and severally a true and correct account of all sums paid by the 1st defendant to the 2nd and 3rd defendants as commission being sums received by the said defendants as agents de son tort of the New Africa Technical and Electrical Company Limited in respect of the contracts referred to in paragraphs (i) and (iii) hereof, and payment over to the New Africa Technical and Electrical Company Limited of any sum found due on taking such account.”
A conditional appearance to the suit, upon a memorandum of appearance dated 22nd June 1977, was entered by a firm of Solicitors, Fred Egbe & Co., on behalf of the 1st defendants. The reason for the conditional appearance was evident from the affidavit dated 28th July 1977 sworn to by one Sikiru Agboola Lasisi, described in the affidavit as a “Legal Executive of 8/10 Broad Street”. It would appear that one John Maddox, the Sales Engineer of the interveners, was served at 739 Adeola Hopewell Street, Victoria Island, with the writ of summons and the statement of claim meant for the 1st defendants. This affidavit of Sikiru Agboola Lasisi, containing ten paragraphs reads:-
“1. That I am a subscriber to the Memorandum and Articles of Association of General Electric U.S.A. (Nigeria) Limited.
The said affidavit was in support of an application dated the same 28th July 1977 made by Fred Egbe & Co. (Solicitors) to the High Court seeking the order of the said Court to set aside the service of the writ of summons on the interveners. The application came before Johnson, J. who on 26th September 1977 dismissed it with N12.00 costs. A further application dated 3rd August 1977 for extension of time within which to file the statement of defence and to file an appeal against the Ruling, was refused with N20.00 costs.
It would appear that the Interveners, by their Solicitors, filed, on 16th December 1977, in the Lagos High Court an application for leave to appeal to the Federal Court of Appeal against the Ruling of the High Court dated 26th September 1977. By reason of the limitation of time provided for in S.25(2)(a) of the Federal Court of Appeal Decree, 1976 No. 43 of 1976, and lack of jurisdiction in the High Court to extend the time as is evident from the provisions of sub-section (4) of the same section, the High Court, quite properly, dismissed the application with costs. Thereupon the interveners applied for leave of the Federal Court of Appeal to-
(1) appeal against the order dismissing their application to set aside service of the writ of summons on them;
(ii) appeal against the ruling refusing their application for adjournment of their motion seeking extension of time within which to file their statement of defence; and
(iii) appeal against the order striking out 1st defendants’ motion for extension of time within which to file their statement of defence.
They also applied to the Court of Appeal for an order –
(iv) extending the time within which to appeal; and
(v) staying the proceedings in the suit pending the determination of the appeals in (i), (ii) and (iii) above.
The Federal Court of Appeal granted the application in (i) and (v) above; found it unnecessary to make any orders on (ii) and (iii) above, but held that the interveners were not debarred from filing a statement of defence, if they considered one necessary should the appeal for which leave was granted fail.
It is from this Ruling of the Federal Court of Appeal that the plaintiff has applied to this court for leave to appeal and has in the said application set out the grounds of his application as follows:-
“1. The learned justices of appeal erred in law in granting to the applicant/company, the General Electric of U.S.A. (Nigeria) Limited, extension of time within which to seek leave to appeal when –
(i) the said company not being party to the suit, has not shown that it has any interest in the matter; and
(ii) the said company has not given any substantial reason known to law for the delay in applying for leave within time.
In his brief in support of his application for leave to appeal the plaintiff put down the questions for the determination of this court to be –
“(a) Whether the Federal Court of Appeal has jurisdiction to grant leave to appeal to the Respondent (i.e. the General Electric of U.S.A. (Nigeria) Limited); and
(b) If the said court has jurisdiction whether leave ought to have been granted bearing in mind the special circumstances of this case.”
The Federal Court of Appeal was established by S.121A of the Constitution of the Federation as amended by the Constitution (Amendment) (No.2) 1976, Decree No. 42 of 1976. SA21E(1) thereof confers jurisdiction on the court, to the exclusion of any other Court of Law in Nigeria.
“to hear and determine appeals from the High Court of a State and the Federal Revenue Court and such other Court or tribunal as may be prescribed by any applicable law.”
By sub-section (3)(d) of the said S.121E an appeal lies to the Federal Court of Appeal from an interlocutory decision of the High Court or the Federal Revenue Court with leave of the High Court or Federal Revenue Court, as the case may be, or with the leave of the Federal Court of Appeal.
A right of appeal to the Federal Court of Appeal conferred by the said S.121 E shall (under S.121 E sub-section (5)(a)) be exercisable in the case of civil proceedings (such as the present matter under consideration)
“at the instance of a party thereto, or, with leave of the High Court or, as the case may be, the Federal Revenue Court, or with the leave of the Federal Court of Appeal at the instance of any other person having an interest in the matter…”
The rest of the provisions of the said sub-section (5)(a) of S.121E concern criminal proceedings, and other proceedings taken over and continued or discontinued by persons or authorities prescribed by law and are not relevant to our consideration of the present matter.
So far as is appropriate to the circumstances of the present case, the right of appeal is exercisable either
(i) at the instance of a party to the proceedings, or
(ii) with leave, at the instance of any other person having an interest in the proceedings.
The periods for the giving of notice of appeal or notice of application for leave to appeal are provided for in S.25(2)(a) and (b) of the Federal Court of Appeal Decree 1976. No. 43 of 1976. Fourteen days are allowed in an interlocutory decision in a civil case or matter. But the Court of Appeal is empowered by subsection (4) of the said S.25 to extend this period.
We have to bear these provisions in mind in determining the legal questions posed in the brief. We, however, consider it unnecessary to go into a determination of the first question in view of the fact that the decision of the second question is sufficient to dispose of this matter.
This second question whether, assuming that the Court of Appeal had jurisdiction, it ought to have granted the leave sought, must be decided against the special facts and circumstances of this case which are in themselves unique. The plaintiff took action against three defendants, the first of which is known as “General Electric Company’. Service of the writ was effected on one John Maddox of the “General Electric U.S.A. (Nigeria) Limited” (not the first defendants). The first defendants entered conditional appearance and upon their failure to get the service of the writ set aside, filed their statement of defence in which they made some admissions relating to an alleged agreement said to be evidenced by a memorandum in writing. They must be deemed to have waived service – a course which, in law, they are entitled to. In Pike v. Naira & Co. Ltd. (1960) Ch. 553 at 560 – cited by Chief Williams – Cross, J., stated that:
‘The service of the process of the court is made necessary in the interests of the defendant so that orders may not be made behind his back. A defendant, therefore, has always been able to waive the necessity of service and to enter an appearance to the writ as soon as he hears that it has been issued against him, although it has not been served on him …”
With the issues joined and settled on the pleadings, the first defendants have set in motion these subsidiary proceedings the effect of which is to suspend the main proceedings between the parties on the writ. But the plaintiff has, through his counsel, Chief Williams, informed this court that he did not intend to sue, nor did he sue, the interveners; that he has no claim against the interveners and therefore could not, and did not, intend to levy execution against the said interveners. He submitted that the interveners had unjustifiably intervened to delay proceedings in the principal suit pending in the High Court in which they had no apparent stake.
In those circumstances one, obviously, is inclined to ask what business have the interveners in a suit which does not concern them, the service on John Maddox of the writ of summons notwithstanding. It is against this background that we view the futile exercise of the application to set aside the service of the writ of summons and the application for leave to appeal from the order dismissing it.
In granting the application for, inter alia, leave to appeal, the Federal Court of Appeal relied on the definition of the word “party in S.2 of the High Court of Lagos Law where it is said to include every person served with notice of or attending any proceedings although not named on the record, and the word “defendant” defined therein as including “every person served with a summons”.
But on a proper construction of S.121E(5)(A) of the Constitution (Amendment) (No.2), the person therein stated exercising the right of appeal to the Court of Appeal, must be one named in the record or, with leave, having “an interest” in the proceedings – which term would include a person affected or likely to be affected, or aggrieved or likely to be aggrieved by the proceedings. Good examples are afforded by Maja & others v. Johnson (1951) 13 W.A.C.A. 194, and Johnson v. Aderemi (1955) 13 W.A.C.A. 297 (P.C.) at 299.
It cannot include a total stranger to the proceedings who is neither named in the record, nor has an interest therein, the definition of “party in the State Law extending its meaning, notwithstanding. Such a person has no locus standi in the proceedings. In any case the Federal Court of Appeal derives its authority, and is limited in the ambit of the exercise of that authority, not by the State Law but by the Constitution. The view taken by the Court of Appeal could, at first glance, appear totally with that of Lindley, L. J. in Re Evans, Evans v Noton (1893) 1 Ch. 264, cited with approval by Bucknill, LJ., in Gillooty v. Gillooly (1950) 2 All E.R. 1118 at 1119 – an administration action in which the defendant had not appeared and in which Lindley, L J. had said:
‘The defendant has not appeared, and it has been contended that he therefore is not a party to the action; but I think that he became such when he was served.”
The difference, however, is that both in Re Evans and in Gillooly v. Gillooly the person served had in interest in, or was affected by the case. In Re Evans the defendant was the executor of T. F. Evans, and in Gillooty v. Gillooly it was a wife, in divorce proceedings, who, although served, had not appeared, and the question was whether in the appeal by her husband in respect of which notice of appeal was properly served on her, she could be regarded as a “party’ when she did not appear in the prior proceedings.
We think that the order of the Federal Court of Appeal granting leave to appeal to the interveners, the General Electric Company of U.S.A. (Nigeria) Limited, and a stay of proceedings of the action, was, in all the circumstances of this case, erroneous. It was for the foregoing reasons that we set aside, with costs, the order of the said Federal Court of Appeal as hereinbefore stated.