3PLR – JUMOSIMA WARI & ORS V. MOBIL INC OF AMERICA & ANOR
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
JUMOSIMA WARI & ORS
V.
MOBIL INC OF AMERICA & ANOR
IN THE COURT OF APPEAL OF NIGERIA
ON MONDAY, THE 28TH DAY OF OCTOBER, 2013
CA/C/41/2009 (CONSOLIDATED)
CWLR (2013) 17
OTHER CITATIONS
LN-e-LR/2013/94
CA/C/41/2009 (CONSOLIDATED)
BEFORE THEIR LORDSHIPS
MOHAMMED LAWAL GARBA, JCA
UZO I. NDUKWE-ANYANWU, JCA
ONYEKACHI A. OTISI, JCA
BETWEEN
- JUMOSIMA WARI
- ZINNA JOE
- BOGO ALIKOMADI
- ADEBATO DAVISON (for themselves and on behalf of 557 Claimants in Asarama in Adoni LGA of Rivers State (inclusive of the plaintiffs on record) who were affected by the Mobil Spill of 12th January, 1998 (suing by lawful attorney Reeko W.A.) Limited) CA/C/41/2009
- ADIGWE BOBO
- INIMGHA FUBARA
- OWEI PIRI
- ADIOWEI LAZARUS (for themselves and the 282 members of the Koko Fishing Group (inclusive of the plaintiff son record) suing by lawful attorney Reeko (W.A.) Ltd) – CA/C/42/2009
- FUBARA IGBALIBO
- JAMES OMOH
- ONODOMA IGBALIBO
- OTONYE JOSHUA
(For themselves and the 925 members of the Alaye Iwo Fishing Group (inclusive of the plaintiffs on record) suing by lawful attorney Reeko (W.A.) Limited. – CA/C/43/2009 – Appellant(s)
AND
- MOBIL INC. OF AMERICA
- MOBIL PRODUCING (NIG) UNLTD Respondent(s)
REPRESENTATION
E.B. Ukiri, Esq., with M. O. Inyang, Esq., – For Appellant
AND
Mr. O. Oshobi, Esq., with Mr. A. Aperua-Yusuf – For Respondent
ORIGINATING STATE
Akwa Ibom State: Federal High Court
OTHER ISSUES
OIL AND GAS: Oil Spill – Claim for compensation for environmental pollution arising from oil operations – relevant considerations
ENVIRONMENTAL AND NATURAL RESOURCES LAW: Environmental pollution – claim for compensation and other reliefs – holding Multinational oil corporations accountable – Litigation issues
ETHICS – LEGAL PRACTITIONER: Brief writing – need for adherence to established practice in brief writing in the appellate courts
CHILDREN AND WOMEN LAW: Children/Women and the Environment – Right to safe natural environment – Oil spill – representative action by community – representation of the interests of children and women – how treated
PRACTICE AND PROCEDURE – ACTION – LOCUS STANDI: Meaning – Sufficient legal right and interest in the determination of the dispute therein – Whether determinant of a party’s locus standi in an action
PRACTICE AND PROCEDURE – APPEAL – OMNIBUS GROUND OF APPEAL: Ground of facts – whether an omnibus ground cannot be used to formulate an issue of law in an appeal – omnibus ground of appeal as a general ground of fact complaining against the totality of the evidence adduced at the trial – whether it can be set against a specific finding of fact or any document – whether can be used to raise any issue of law or error in law whether a complaint on a finding of fact on a specific issue requires the raising of substantive ground of appeal in challenging that finding instead of an omnibus ground
PRACTICE AND PROCEDURE – APPEAL – ISSUES FOR DETERMINATION: Whether only issues raised from competent grounds of an appeal would be live, competent and worthy of consideration in the determination of such an appeal – whether an appeal, in the absence of a clear indication in the brief, especially of an Appellant, of the grounds from which issues were distilled and submitted for decision in an appeal would be defeated as the court would be left to have to fish from the grounds of the appeal
PRACTICE AND PROCEDURE – COURT – POWER OF CHIEF JUDGE: Whether the Chief Judge of Federal High Court has the power to make rules to regulate the procedure and practice of the Federal High Court particularly with respect to issuance and service of writ of summons on a person outside each state
PRACTICE AND PROCEDURE – COURT – DUTY OF COURT – JURISDICTION: Duty of Court to first consider and determine objection raised to its jurisdiction to entertain a matter, before any other process – Whether a ground of appeal that complains about the proper order a court of law is required to make after a finding that it lacks the necessary jurisdiction to entertain a matter brought before it, is one of fact
PRACTICE AND PROCEDURE – JURISDICTION – LOCUS STANDI AND JURISDICTION: The relationship between locus standi and jurisdiction – whether Locus standi and jurisdiction are inter woven in the sense that it goes to the jurisdiction of the court before which an action or process was initiated – whether where there is no locus standi in a party in the first place, the court can properly assume jurisdiction to entertain a process or an action
PRACTICE AND PROCEDURE – JURISDICTION – OBJECTION TO JURISDICTION: objection to the jurisdiction of a court – circumstances when it can be raised – whether it can ever be premature or too late to raise the issue of the jurisdiction of a court to entertain a matter before it and once raised, whether should be determined first before further steps in the matter – whether objection on the absence of the prior requisite leave to issue and serve writ outside jurisdiction directly goes to and involve both the procedural and substantive law on jurisdiction of the court – where question can be raised by the court suo motu as a substantial point of law capable of disposing of the action – whether mode of raising the issue of jurisdiction in judicial proceedings, because of its extrinsic nature and effect to the entire process of adjudication, is not limited to a particular form
PRACTICE AND PROCEDURE – LOCUS STANDI – CHALLENGE TO LOCUS STANDI:- Challenge to the locus standi of a party to bring a process in the case – whether a direct challenge to the jurisdiction of the court seized of the case to entertain the said process on the ground that it was incompetent
PRACTICE AND PROCEDURE – SERVICE OF PROCESSES – ISSUANCE/SERVICE OF WRIT OF SUMMONS: Issuance and service of a writ of summons meant for service on defendants outside the jurisdiction of a court – whether governed by the same law – nature of the issue of a writ of summons – whether the foundation upon which the jurisdiction of a court can properly be invoked by the parties in respect of any dispute to be settled through the judicial process
PRACTICE AND PROCEDURE – SERVICE OF WRIT OF SUMMONS: Sections 96, 97 and 99 of the Sheriff and Civil Process Act – The requirements that must be satisfied where a writ of summons is to be served out of the jurisdiction of the issuing State High Court – whether fundamental requirements, the breach of which can affect the jurisdiction of the court – distinction between absence of leave to issue a writ for service outside the jurisdiction of a court and absence of leave to serve a writ outside the jurisdiction of the issuing court – difference in legal consequences – meaning of jurisdiction as a matter or issue of procedural law which a party has the right and discretion to condone or waive, expressly or impliedly – effect of failure to commence proceedings with a valid writ of summons – whether goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity – whether such issue can be raised at any time and it can never be alien to the proceedings
INTERPRETATION OF STATUTE – SHERIFF AND CIVIL PROCESSES ACT: The nature of Sheriff and Civil Processes Act and the scope of its application – Whether its provisions apply to and regulate the practice and procedure in the Federal High Courts – Sections 96 and 97 of the Act – whether they apply to writs of summons issued by or in the Federal High Court – interpretation of the territorial applicability of the Act
WORDS AND PHRSES– “locus standi”, “Jurisdiction”
MAIN JUDGMENT
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
The Appellants in the three (3) appeals had taken out separate writs in Suits No. FHC/UY/CS/44/04 and FHC/UY/CS/46/04 against the Respondents in the Federal High Court sitting at Uyo, Akwa Ibom State. The addresses endorsed on the writs for service on the Respondents were as follows:-
“(1) Mobil Incorporated of America, c/o Mobil House, Victoria Island, Lagos.
(2) Mobil Producing (Nig.) Ltd. of Mobil House, Lekki Express Way, Victoria Island, Lagos.”
Also endorsed on the writs, was the following command to the Respondents:-
“YOU ARE HEREBY COMMANDED that within eight days after service of this summons on your inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suit of Fubara Igbalibo and others. TAKE notice that in default of your so doing, the plaintiffs may proceed therein and judgment given in your absence.”
Upon service of the writs on the Respondents, the 2nd Respondent filed a notice of preliminary objection challenging them on the ground that the 1st Respondent being a Company incorporated, based and doing business in the United States of America, leave of court was required to issue and serve the writs on it.
Thereafter, the Appellants filed a motion seeking inter alia, to “delete the name of the 1st Respondent as a party from the statement of claim
The preliminary objection and the Appellants’ motion to amend the statements of claim in the suits were consolidated and taken together in Suit No. FHC/UY/CS/46/2004.
In a ruling delivered on the 25/07/2006, that court found that the writs were nullities on the ground of the absence of the requisite leave of court for their issue and service outside jurisdiction and accordingly set same aside. In consequence, the Appellants’ motions to amend were struck out.
Being thoroughly dissatisfied with the decision, – apparently, the Appellants brought the present appeals against same, which by the order of the court, were consolidated for the purpose of hearing and determination. Because the grounds of the appeals against the decision and the issues for determination distilled therefrom by the learned counsel for the parties were the same, the court directed the learned counsel to file composite brief each for the appeals.
The Appellants’ Amended brief settled by Mr. Emonena B. Ukiri, Esq., learned counsel for the Appellants was filed on the 18/1/2010 while the Respondents ‘brief, settled by Isah Seidu, Esq., was filed on the 4/3/2010, but deemed on the 16/9/13, the date of the oral hearing of the appeal.
At the hearing, E. B. Ukiri, Esq., leading M. O. Inyang, Esq., for the Appellants adopted the Appellants amended brief and urged the court to allow the appeal and set aside the decision by the Federal High Court (to be called the lower court hereafter).
The Respondents’ brief was adopted by Mr. O. Oshobi, Esq., leading Mr. A. Aperua- Yusuf, Esq., and we were urged by him to dismiss the appeal and affirm the decision by the lower court.
Three (3) issues were submitted for determination in the Appellants’ brief as follows:
(i) Whether or not the learned trial judge’s refusal to entertain and dispose of the Appellants’ motion for amendment before hearing the 2nd Respondent’s notice of preliminary objection or the consolidation of the three suits by the learned trial judge without hearing the Appellants’ respective applications for amendment in each of the three suits, did infringe on the Appellants’ right to fair hearing.
(ii) Whether or not, leave was required for the issuance of the writ of summons meant for service on the defendants within the territorial jurisdiction of the Federal High Court of Nigeria.
(iii) Whether or not the 2nd Defendant had the locus standi to raise the issue of non-compliance with a statutory or other legal requirement, made for the benefit of the 1st Respondent, which did not complain, the alleged non-compliance not being apparent on the face of the writ.
As can easily be noted, the learned counsel did not indicate in the above issues from which of the grounds contained in the notice of appeal they were distilled as required by the now established and diligent practice in brief writing. The need for the adherence to that practice in brief writing in the appellate courts cannot ever be overemphasized because of the law that only issues raised from competent grounds of an appeal would be live, competent and worthy of consideration in the determination of such an appeal. See Dike Geo Motors Ltd. v. Allied Signal Ltd. (2006) FWLR (320) 961; International Carpets Ind. Ltd. v Savannah Bank (2000) FWLR (325) 108; FBN Plc v Nireko Ent. Ltd. (2002) FWLR (95) 355. In the absence of a clear indication in the brief, especially of an Appellant, of the grounds from which issues were distilled and submitted for decision in an appeal, one of the primary objects of brief writing which is to precisely and concisely identify and narrow down the area of complaint against the decision appealed from would be defeated as the court would be left to have to fish from the grounds of the appeal. See Akpadiaha v Owo (2001) FWLR (5) 940 at 953; Aswasim v Ejivumerwerhaye (2001) FWLR (78) 1125 at 1138; Eiezie v Nwabueze (2002) FWLR (130) 1808; Hanseatic International Ltd. v Usang (2003) FWLR (149) 1563.
The grounds contained on the notice of appeal filed by the Appellants on 7/9/06 against the decision of the lower court, which appears at page 63 – 64 of the initial record of appeal received in the court on 23/3/09, are thus: without particulars:
(i) the learned trial judge erred in law and this has occasioned grave miscarriage of justice when he struck out the Appellants’ writ of summons and motion to amend their statement of claim, despite uncontested evidence that the 1st defendant does business through the 2nd defendant and 1st defendant’s address for service was within jurisdiction.
(ii) the learned trial judge erred in law in striking out the suit upon the objection of the 2nd defendant, which lacked the locus standi to raise the objection.
(iii) The decision was against the weight of evidence.
Clearly, whereas the Appellants’ issues (ii) and (iii) above are derivable from the grounds of appeal (i) and (ii) respectively, their issue (i) does not arise from any of the grounds of appeal. The issue, undoubtedly, does not enure from the omnibus ground (iii) complaining of weight of evidence because the issue is one of pure law. Being a ground of facts, an omnibus ground cannot be used to formulate an issue of law in an appeal. The Supreme Court in the case of Akinglesun v Oshoboja (2006) ALL FWLR (325) 53 at 75 – 6 had put the position of the law thus:-
“An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. It therefore follows that for a complaint on a finding of fact on a specific issue, substantive ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus ground. Ajibona v Kolawole (1996) 10 NWLR (Pt.476) 22”.
See also Bhojsons Plc v Danuel-Kaho (2006) 5 NWLR (973) 330; Ajayi v Omorogbe (1997) 6 NWLR (301) 512; C.S.S. Bookshop v R.T.M.C.R.S. (2006) 11 NWLR (992) 530 at 557. Since the Appellants’ issue (i) was not distilled from any of the grounds of appeal, it goes to no issue and is incompetent. It is liable to be and is hereby struck out.
At paragraph 3.0 on page 5 of the Respondent’s brief, two issues as follows were set out for determination in the appeal:-
‘3.1.1. Whether having regard to the law, evidence, decided cases and the records before the court, the court below was right in law to have declined jurisdiction and setting aside the writ of summons, which was issued and served on the Respondent without leave of court first sought and obtained in violation of the Sheriff and Civil Process Act, Cap, S.6 FLN 2004 and under the Federal High Court Rules, 2000. (Grounds 1 & 2)
3.1.2. Whether the order striking out the suit was appropriate after holding that it had no jurisdiction and whether the Appellants were denied their right to fair hearing in the entire circumstance of the case (Ground 3).
Issue two above appears to contain two limbs, the first of which is whether the striking out of the suit by the lower court after finding that it had no jurisdiction, was appropriate. The 2nd limb was the Appellants’ issue (i) on denial of fair hearing which I have found not to have been raised from any ground of the appeal. The limb on the propriety of striking out the suit cannot be said to have been derived from the Appellants’ omnibus ground of fact (iii) to which it was ascribed in the brief. The proper order a court of law is required to make after a finding that it lacks the necessary jurisdiction to entertain a matter brought before it, is not one of fact but of pure law established by judicial procedure and practice. This limb of the Respondents’ issue is therefore not related to the ground (iii) of the Appellant or any of the other grounds of appeal. It is like the Appellants’ issue (i), liable to be and is struck out for being incompetent. See A.P. Ltd. v Owodunni (1991) 8 NWLR (210) 391; Okoye v N.C. & F. Co. Ltd. (1991) 6 NWLR (199) 501; Falola v UBN. Plc (2005) 2 SC (Pt. II) 62.
The Appellants issues (ii) and (iii) are now left as the live issues arising from the grounds of appeal for decision. The issues are subsumed and adequately addressed by the Respondents under their issue one in the respondents’ brief. I intend to determine the appeal on the Appellants’ issue (ii) and (iii).
Issue (ii)
The learned counsel for the Appellants had argued the incompetent issue (i) and the competent issue (ii) together in his brief. By authorities such as Bereyin v Gbobo (1989) 1 NWLR (97) 372 at 37 – 80; Globe Fishing Ind. v Coker (1990) 7 NWLR (162) 265; Ayalogu v Agu (1998) 1 NWLR (532) 129; Ngige v Obi (2006) 14 NWLR (999) 1 at 165 and Borishade v N.B.N. (2007) 1 NWLR (1015) 217 at 235, where competent and incompetent grounds of an appeal were argued together by a party to the appeal, both are to be struck out as it was held not to be the duty of the court to separate or sift them. However, the attitude of the courts now is to see if the arguments/submissions on the competent issues or grounds are clearly severable from those on the incompetent ones, in the interest of justice to the parties, the court should consider the competent submissions and discountenance the incompetent.
The submissions by the learned counsel for the Appellants on his issue (ii) can be separated from the ones on the incompetent issue (i) and are to the effect that leave of the lower court was not required for the issue and service of the writs on the Respondents because they were shown to jointly own the crude oil pipeline which is situated at “Qua Iboe Terminal (QIT), Ibeno, Akwa Ibom State, within the Nigerian territorial waters, in paragraphs 8 and 9(i) and (ii) of the statement of claim. According to him, the tenure of the objection and grounds upon which it was based, required pleadings and evidence since the 2nd Respondent who filed the objection did not make a claim being outside the territorial jurisdiction of the lower court. It was the contention of learned counsel that the objection was based on paragraphs 6 and 7 of the affidavit in support of the objection which are as follows:-
“6. The said originating processes meant for service on the 1st Defendant, a foreign company not registered nor doing any business in Nigeria was a/so served on the 2nd defendant without leave of the
honourable court.
- I was informed by Mr. Wole Akoni of counsel on 111th April, 2005 and I verily believe him that the 1st defendant being a foreign company, leave of this honourable court should have been first obtained before the issuance and service of the said originating process on the defendants in this case.”
Learned Counsel said it is clear from these paragraphs that the 2nd Respondent was not making a case for itself and that by the time the objection was filed, the 1st Respondent had not filed a statement of defence to plead the fact that it was incorporated, based and carries on business in the United States of America (USA). In addition, that the 2nd Respondent did not plead that fact and so the leave of the lower court was not required for the issue and service of the writ. In further argument, learned counsel said that it was wrong for the lower court to have acted on unpleaded facts that the 1st Respondent was a foreign company doing business outside Nigeria since the objection was a defence that needed to have been pleaded. Relying on Republic Bank Ltd. v CBN (1998) 13 NWLR (581) 306 at 332, he submitted that a preliminary objection which depends on evidence to be sustained would be premature if raised before pleadings were filed even if it challenges the jurisdiction of the court. According to learned counsel, an objection to the jurisdiction of the court based on noncompliance with a condition precedent to the commencement of a suit must be specifically pleaded especially where evidence is required to sustain the grounds of the objection, otherwise, it would amount to a waiver, citing Mobil Producing Nigeria Unlimited v LASEPA (2002) 18 NWLR (798) 1 at 29 -30, 31 – 32, 36 – 37 and 48. Then citing Akawu v Maianguwa (1998) 5 NWLR (557) 656 at 671, he argued that the lower court was not entitled to resolve the issue of jurisdiction on affidavit evidence when the pleadings of the parties are either in conflict with the facts contained in the affidavit or where the facts in the affidavit are not pleaded. He pointed out that by the provisions of Order 6, Rule 8 of the lower court’s Rules, both the writ and the statement of claim must be filed together and finally urged us to resolve the issue in favour of the Appellants.
For the Respondents, it was submitted that the lower court was right in holding that it lacks jurisdiction because a condition precedent to the issuance of the writ at Uyo for service in Lagos, was not fulfilled. Learned counsel for the Respondents pointed out that the legal effect of irregularities in the service of a writ is different from that of non-fulfillment of a condition precedent in the issuance of the writ. He said while defect in service is curable by waiver or Rules of court, defect in issuance of a writ is a fundamental and fatal one which cannot be cured by waiver or Rules of court, relying on Owners of MV “ARABELLA” v Nig. Agric. Ins. Corporation (2008) 4 – 5 (Pt. II) 179 at 193. It was his further submission that even if the 1st Respondent carries on business in Lagos, leave of court was still required for the issuance and service of the writ issued at Uyo under the provisions of Sections 96 and 97 of the Sheriff & Civil Processes Act and Order 6, Rule 12(1) of the Rules of lower court, 2000. In addition, it was contention of counsel that the return date on the face of the writ was eight (8) days in violation of the provisions of Section 99 of the Sheriff & Civil Processes Act which provides for 30 days return date for writs issued in one state of the country, to be served in another State. He said requirements of Sections 98, 99 and 101 of the Sheriff & Civil Processes Act, Cap 56 of 2004 (to be called Cap 56 hereafter) cannot be waived and the case of Skenconsult v Ukey (1981) 1 SC 4 at 11 – 12 was referred to.
Counsel also submitted that by the authority of Econet Wireless Ltd. v Econet Wireless Nig. Ltd. (2003) 2 FHCR, 20, once the issue of jurisdiction is raised in proceedings, the court is enjoined to take it first before taking further steps therein. That once the issue of jurisdiction arises, it takes priority over all other motions in the proceedings because of its fundamental nature and that priority of motions applies only when curable irregularity occurs in proceedings. The case of Adamawa State Govt. v U.L.O. Consultants Ltd. (2008) 12 CLRN 91 at 106 was cited on the law that the issue of jurisdiction can be raised for the first time on appeal due to its nature. Among others, Tiza v Begha (2005) ALL FWLR (272) 200 and Zenith Plastic Ind. Ltd. v Samotech Ltd. (2008) ALL FWLR (472) 176 at 193 were referred as authorities that the issue of jurisdiction be taken first whenever it arises in proceedings.
Learned counsel argued that the case of Mobil Producing Nigeria Unlimited v LASEPA (supra) cited by the learned counsel for the Appellants dealt with the issue of pre-action notice which can be waived and must be pleaded as a defence unlike the Appellants’ case where the provisions of Cap 56 on the issuance and service of the writ were violated. The case is accordingly said to be distinguishable from the Appellants’ case and inapplicable thereto, whereas the case of Owners of MV “ARABELLA’ (supra) was said to be on all fours with the Appellants ‘case. Learned counsel said the writ in that case was issued by the Federal High Court in Lagos for service on the Defendants in Abuja and it was held that the provisions of Sections 96, 97, 98 and 99 of Cap 56 applied by virtue of Section 96(3) of the Act.
Furthermore, that the Supreme Court had affirmed the position in the later case of Drexel Energy v Tans Int’l Bank Ltd. (2008) 12 SC (Pt. II) 240 at 255 – 6. It was also the submission of Counsel that the law is that the parties cannot by consent, waiver or admission confer jurisdiction on a court where it totally lacks jurisdiction over a matter and maintained that leave of the lower court was required for the issuance and service of the Appellants’ writ on the Respondents in Lagos. He insisted that failure to obtain the required leave rendered the writ a nullity and the lower court lacks the jurisdiction to entertain the appellants’ case. We were urged by counsel to resolve the issue by affirming the ruling of the lower court.
Issue (iii)
The learned counsel for the Appellants after reference to paragraphs 3.6 and 7 of the 2nd Respondent’s affidavit in support of the objection and setting out paragraph 4.4 of the written address by the learned counsel for the Respondents in support of the objection as well as Order 6, rule 12(1) of the lower court’s Rules, had submitted that the 2nd Respondent’s case was neither that it carried on business nor served outside the jurisdiction of the lower court. Once again, counsel said it was wrong for the lower court to have used the 2nd Respondent’s affidavit to resolve the issue that the 1st Respondent is a company incorporated and carries on business outside Nigeria and so not within its territorial jurisdiction which was contrary to the pleadings showing that the 1st Respondent is the joint owner of the crude oil pipeline which caused damage to the Appellant. According to learned counsel, it was immaterial that the Appellants did not file a counter affidavit to the objection by the 2nd Respondent as the case was supposed to be fought on pleadings and not affidavit evidence as it was the claim of the Appellants that determines the jurisdiction of the lower court. The case of Tukur v Govt. of Gongola State (2009) 4 NWLR (117) 517 was cited and it was further argued that the name of the 1st Respondent on the writ notwithstanding, the address given thereon shows that it does business in Nigeria and so Order 6, Rule 12(1) does not apply to the writ. Relying on Order 6, Rule 5 of the Rules of the lower court, it was contended by learned counsel since the address given on the writ for service on the 1st Respondent was within or in Nigeria, it was not outside the jurisdiction of the lower court and no leave of court was required for the issue and service thereof since there is one Federal High Court in Nigeria. Nigerite Ltd. v Danfam Nig. Ltd. (1992) 7 NWLR (253) 288 at 298. He argued further that for cases filed in the Federal High Court, out of jurisdiction means outside Nigeria and refers to Order 13, Rule 31 of the Rules of lower court 2000. According to counsel, the case of Owners of MV “ARABELLA” v Nigeria Agric Bank Incorp (supra) was decided on the 1976 Rules of the lower court and that the issues determined are totally different from the provisions of Order 16 Rules 5 and 13 of the 2000 Rules. We were urged not to follow that decision by the apex court since the facts are distinguishable from the Appellants’ case, citing Adegoke Motors Ltd. v Adesanya (1989) 3 NWLR (109) 250 at265 – 6,275 and Okoye v Centre Point Merchant Bank Ltd. (2008) sic reported in (08) 11 MJSC, 76.
Learned counsel then argued that the 2nd Respondent’s objection could only be raised by the person for whose benefit the condition precedent was provided by the statute, in this case, the 1st Respondent and so the 2nd Respondent had no locus standi to raise the objection for the benefit of the 1st Respondent, reliance was placed on Mobil Prod. Nig. Unltd v LASEPA (supra) at pages 34 – 5 and 47. He again contended that the objection would have only been validly raised through pleadings which affidavit evidence could not take the place of. That the 2nd Respondent ought to have exhibited the Certificate of Incorporation of the 1st Respondent and that it carries on business outside Nigeria. The case of UBA Plc v Odimayo (2005) 2 NWLR (909) 21 at 39 & 40 was cited in addition to other cases which are not germane to the issue for decision but referred to in the round about submissions on it. Learned counsel urged us to resolve the issue in Appellants’ favour.
On his part, the learned counsel for Respondents had submitted on the issue, relying on Ladoja v INEC (2007) 12 NWLR (1047) 119 at 181, that the issue of jurisdiction is so fundamental that it can be raised at any stage of proceedings by any of the parties or the court suo motu and can enure to the advantage of any of the parties on the authority of Gomwalk v Military Administrator. Plateau State (1998) 6 NWLR (555) 653 at 664. He argued that a preliminary objection can be filed with or without an affidavit depending on its nature, citing Addax Petroleum Nig. Ltd. v Chief Beh (2007) 11 CLRN 1 at 14 and where an affidavit was filed, a party who opposes the objection must file a counter affidavit, otherwise he shall be deemed in law to have admitted the facts deposed in the affidavit in support of the objection. The cases of Badejo v Minister of Education (1996) 1 – 10 SCNJ, 51 at 69 and A-G, Anambra State v Okeke (2002) FWLR (112) 175 at 195 -6 were referred for the submission and it was pointed out that the Appellants did not file a counter affidavit to oppose the 2nd Respondent’s objection and so deemed to have admitted in particular, paragraphs 3, 4, 5, 6, 7 and 8 of the affidavit in support of the objection.
We were urged to hold that any of the parties to a case has the locus standi to raise the issue of jurisdiction at any stage of the case and that the 2nd Respondent had the locus standi to raise the objection challenging the jurisdiction of the lower court on the ground of absence of leave of court to issue and serve the Appellants’ writ. Also that the objection was to the effect that the suit was not instituted by due process of the law and so a condition precedent to the assumption of jurisdiction was not fulfilled.
It would appear that the submissions by learned counsel for the parties on this issue question the competence of the objection by the 2nd Respondent whose locus standi to raise same was challenged by the Appellants’ counsel. The issue is then a challenge to the jurisdiction of the lower court to have entertained the objection ruling on which resulted in the present appeal. I would decide the issue first. A challenge to the locus standi of a party to bring a process in the case is a direct challenge to the jurisdiction of the court seized of the case to entertain the said process on the ground that it was incompetent. Locus standi or legal standing to sue, initiate, undertake or take out any judicial process, is the legal right of a party to an action to be heard in litigation before a court of law, without any inhibition, let or hindrance of any sort. It is therefore a condition precedent for the proper initiation of any judicial process in the courts which goes to the competence of or jurisdiction of the court to entertain the process or action. Locus standi and jurisdiction are inter woven in the sense that it goes to the jurisdiction of the court before which an action or process was initiated. Thus, where there is no locus standi in a party in the first place, the court cannot properly assume jurisdiction to entertain a process or an action. See Olagunju v Yahya (1998) 3 NWLR (542) 501; Nnubia v A-G, Rivers State (1999) 3 NWLR (593) 82; Waziri v Danboyi (1999) 4 NWLR (598) 239; A-G, Akwa Ibom State v Essien (2004) 7 NWLR (872) 288; Inakoju v Adeleke (2007) 4 NWLR (1025) 423; Arowolo v Akapo (2004) ALL FWLR (208) 807 at 853.
The ground of the Appellants’ challenge to the locus standi of the 2nd Respondent to raise or file the objection to the writ served on it is that the objection relates to and was to the benefit of the 1st Respondent who had not filed a statement of defence in the case to challenge it.
Let me start by saying that it is not the case of the Appellants that the 2nd Respondent is not a party to the claims endorsed on the writ taken out by them or that the objection raised by the 2nd Respondent does not go to the competence or validity of the writ and so one which touches on the jurisdiction of the court to entertain it. Unarguably, an objection to the issuance of a writ of summons to be served outside the jurisdiction of the issuing court, which is an originating or initiating process of an action, on the ground that the statutory requirement for prior leave of that court for the issue of such writ, is one which goes to and affects the jurisdiction of the said court to entertain the claims endorsed on the writ. Similarly, an objection that a writ of summons of a court was served outside its jurisdiction without the leave required for such service, would question the validity of such service and not necessarily the validity of the issuance of the said writ. The learned counsel for the Respondents is therefore right that there is a difference in legal consequence of the absence of leave to issue a writ for service outside the jurisdiction of a court and absence of leave to serve a writ outside the jurisdiction of the issuing court. Ordinarily, the service of a validly issued writ outside the jurisdiction of the issuing court would not ipso facto go to the jurisdiction of the court to entertain the claims endorsed on the said writ, but only makes the service thereof voidable at the instance of the party served as an irregularity which he had the right to condone and/or waived.
The validity of the service of a writ only goes to the jurisdiction of the court in the sense that being an originating process of a case, the court can only properly assume jurisdiction over the party to be served where and when there was proof of such service on the party. This is what is known as jurisdiction as a matter or issue of procedural law which a party has the right and discretion to condone or waive, expressly or impliedly. See Ndayako v Dantoro (2004) 13 NWLR (889) 187; Flemington Dev. Nig. Ltd. v Anaemene (2006) ALL FWLR (301) 1915 at 1932; Stabilini Visioni Ltd. v Ejike (2002) FWLR (84) 44 at 50; Prince Ajibola v Sogeke (2002) FWLR (93) 1959 at 1979; Odua Investment Co. Ltd. v Talabi (1997) 10 NWLR (523) 1, (97) 7 SCNJ, 600. The requirement of prior leave to issue a writ to be served at an address outside the jurisdiction of a court is considered as an issue of substantive rather than procedural law and is fundamental in the due process of commencing or initiating an action in the court such that it cannot be condoned or waived by the parties since it goes to the competence of the action and so jurisdiction of the court. In the case of Kida v Ogunmola (2006) ALL FWLR (327) 402, (06) LPELR, 15, it was held that “The validity of the originating processes in a proceedings before a court, is fundamental, as the competence of the proceedings is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and competence of the court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings…” See also Ononye v Rt. Rev. Mosqr. Chukwuma (2005) 17 NWLR (953) 115 – 6, (05) ALL FWLR (287) 951 at 974; Ezeobi v Abang (2001) FWLR LR (56) 652 at 665; Jikantoro v Dantoro (2004) 5 SC.
The grounds of the 2nd Respondents’ objection on the absence of the prior requisite leave to issue and serve the Appellants’ writ outside jurisdiction therefore directly goes to and involve both the procedural and substantive law on jurisdiction of the lower court to entertain the claims endorsed thereon against the Respondents. Since the objection raises the issue of the jurisdiction of the lower court to entertain the Appellants’ action against the Respondents, the law is now common place that it can be raised at any stage of the proceedings by any of the parties to the writ or the court suo motu as a substantial point of law capable of disposing of the action.
The mode of raising the issue of jurisdiction in judicial proceedings, because of its extrinsic nature and effect to the entire process of adjudication, is not limited to a particular form.
In the case of GTB Plc v Fadeco (2005) ALL FWLR (287) 913, it was held that:-
“An objection to the jurisdiction of a court can be raised in any of the following situations:-
- a) on the basis of a statement of claim
- b) evidence received
- c) by motion supported by affidavit setting out the facts relied on,
- d) on the face of the writ of summons where appropriate, as to the capacity in which, the action was brought or against whom it was brought.
See also Nnonye v Anyichie (2005) 2 NWLR (910) 623; Arjav Ltd. v Airline. Momt Support Services (2003) 2 SCNJ, 148.
Furthermore, in the case of State v Onagoruwa (1992) 2 SCNJ 109, it was held by the Supreme Court that it was never premature or too late to raise the issue of the jurisdiction of a court to entertain a matter before it and once raised, should be determined first before further steps in the matter. See also Akegbe v Ataga (1998) 1 NWLR (534) 459 at 408 – 9; 3rd EYE COMUNICATIONS LTD. v Ishola (1999) 2 NWLR (592) 549 at 557; Amadi v NNPC (200) 6 SC (Pt. 1) 66.
In the above premises, as a party against whom the writ was taken out and issued, the 2nd Respondent has the inherent legal right to object to its validity on any sustainable ground in law whether or not the challenge would benefit the 1st Respondent. Similarly, because the claims endorsed on the writ were made jointly against both Respondents in respect of damages allegedly caused by the leakages from a pipeline jointly owned by them, both or either of them have/has the right to object to the competence of the writ.
Each of them has the locus standi to challenge the validity or competence of the writ. It would be remembered that the established determinant of a party’s locus standi in an action is sufficient legal right and interest in the determination of the dispute therein. The 2nd Respondent, a party against whom claims were made by the Appellants on the writ in question, has the legal right sufficient interest and the locus standi to question the validity or competence of the writ. That cannot seriously be denied the 2nd Respondent and I have no difficulty in resolving the issue against the Appellants. The 2nd Respondent has the locus standi to raise the objection against the Appellants’ writ which touches on the competence of the Federal High Court to entertain the claims endorsed thereon. For the same reason because the objection affected the jurisdiction of the lower court, it had priority over any other process in the case because until the validity of the writ was determined as the initiating process of the case, there will be no pleadings to be amended by the Appellants’ motion. In the circumstance, the lower court was right to have determined the objection to the competence of the writ first before a consideration of the Appellants’ motion to amend in line with the above judicial authorities. In addition, see Elabanjo v Dawodu (2006) ALL FWLR (328) 604; HDP v Obi (2011) 12 MJSC (Special Edition) 67.
I now turn to the Appellants’ issue (ii). I have under issue (iii) above stated that the issuance and service of a writ of summons meant for service on Defendants outside the jurisdiction of a court are separate procedures govern by different provisions of the law. The issue of a writ of summons generally, is governed by the Rules of the court from which it is to be issued made pursuant to the relevant enabling provisions of the Constitution. For instance, for the State High Court, Section 274 of the 1999 Constitution (as altered) vests the State Chief Judge the discretionary power, subject to any law made by a State House of Assembly, to make rules for regulating the practice and procedure of the High Court.
The issue of a writ, whether to be served within or outside the jurisdiction of a High Court is usually governed by the Rules of practice and procedure made by the State Chief Judge in that regard to regulate the procedure in that court. Being an initiating process of an action before the court, the issue of a writ of summons is the foundation upon which the jurisdiction of a court can properly be invoked by the parties in respect of any dispute they want to settle through the judicial process. The Rules of court on the issue of the writs are therefore fundamental in the adjudication process such that in most cases they are drafted and couched in mandatory and obligatory terms. For the State High Court, the issue of a writ of summons for service outside its territorial jurisdiction of the State, the law is that though the issue of the writ is governed by the High Court Rules, the service of the writ outside its jurisdiction is subject to the provisions of the Sheriff and Civil Process Act, passed by the National Assembly. This was the position of the Supreme Court in the case of Nwabueze v Justice Obi Okoye (1988) 4 NWLR (91) 644 where the writ of summons for claims in defamation was issued in Anambra State High Court for service on Defendants who were neither resident nor carried on business in the State. The apex court held that even in the light of the then unlimited jurisdiction of the State High Court under Section 236 of the 1979 Constitution, it was the Sheriff and Civil Process Act that governed service of the writ outside the territorial boundaries of Anambra State and that under Section 96 thereof, leave to serve outside jurisdiction was required. See also Miti v N.N.B. Plc (1997) 3 NWLR (496) 737; B.B.N. v Olayinola (2001) 6 WRN, 141.
By the combined provisions of Sections 96, 97 and 99 of the Sheriff and Civil Process Act, where a writ of summons is to be served out of the jurisdiction of the issuing State High Court, the following requirements must be satisfied:-
(a) the writ must be endorsed with the address at which the defendant is to be served outside jurisdiction,
(b) there must be a period of not less than thirty (30) days within which the defendant shall answer to the writ after the date of service
(c) except otherwise provided by law, leave of the court must be obtained for the issue and service of the wit outside jurisdiction.
These are fundamental requirements, the breach of which have been held to affect the jurisdiction of the court. See Jadcom Ltd. v Oguns Electrical (2004) 3 NWLR (859) 153; Ajibola v Sogeke (supra); Kida v Ogunmola (2000) 13 NWLR (997) 377; Owena Bank Plc v Olatunji (2002) FWLR (124) 529 at 573.
Now, in respect of the Federal High Court, from which these appeals arose, Section 254 of the 1999 Constitution has made similar provisions granting the Chief Judge to make rules to regulate the procedure and practice of that court, subject to any Act of the National Assembly. Accordingly, any Rules made by the Chief Judge of the Federal High Court in relation to the procedure and practice in that court are subordinate and so subject to Any Act of the National Assembly on the procedure and practice to be followed in respect of the processes in the court. The Sheriff and Civil Processes Act, is an Act of the National Assembly providing for the service of a writ of summons outside jurisdiction of a High Court sitting in a State or the High Court of the Federal Capital Territory, that have demarcated territorial boundaries mentioned and clearly defined in First Schedule; parts I and II respectively of the 1999 Constitution. All the cases cited earlier and more on the application of the Sheriff and Civil Process Act were either from the State High Courts or the High Court of the Federal Capital territory to which the Act undoubtedly apply from the position of the Supreme Court. These courts were specifically established by the provisions of Sections 270 of the Constitution for each of the States of the Federation and Section 255 for the Federal Capital Territory which have named territorial boundaries in the Constitution and to which reference was made in the Sheriff and Civil Act for application.
I have perused the one hundred and twelve (112) or so Sections of the Act but did not find any provisions which suggest that the Act applies to and regulates the practice and procedure in the Federal High Courts and in particular, that the provisions of Sections 96 and 97 thereof apply to writs of summons issued by or in the Federal High Court. The Sections are as follows:-
“96.1. A writ of summons issued out of or requiring the defendant to appear at any court of a State of the Capital Territory may be served on the defendant in any other State or the Capital Territory
- Such service may, subject to any rules to court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital Territory in which the writ was issued”.
“97. Every writ or summons for service under this Act out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)-
“This summons (or as the case may be) is to be segued out of the …… State (or as the case may be …. and in the …………..State or as the case may be).”
“These provisions are in clear, plain and straight forward terms, in my view, that they present no difficulty whatsoever in their purport. By settled principles of law, therefore, the only duty of the court in their interpretation is to give them their ordinary, clear and plain meaning in order to give effect to their intention. See Ojokolobo v Alami (1987) 7 SCNJ, 98; Ekeogu v Aliri (1991) 3 NWLR (179) 258; Ndoma-Egba v Chukwuogor (2004) 2 SC (Pt.1) 107; Nnonye v Anyichie (2005) 1 SC (Pt. II) 96. Section 96 above is clearly intended to apply to;
“A writ of summons issued out of ….. any court of a State or of the Capital Territory …. To be served on a defendant in any other State or the Capital Territory.”
“any court of a State” used in the provision undoubtedly means a court which was established by the Constitution for a State, for instance the State High Court under Section 270(1), Sharia Court of Appeal of a State under Section 275(1) and the customary court of Appeal of a state under section 280(1) of the 1999 Constitution (as altered) respectively, and other courts in a state established by the Laws passed or enacted by a State House of Assembly pursuant to the powers vested in it by the provisions of the Constitution.
For the “Capital Territory” used therein, surely means court established by the constitution for the Federal Capital Territory; the High Court, Sharia Court of Appeal and Customary Court of Appeal as well as the courts established by the Acts of the National Assembly for the Territory in exercise of the powers vested in it by the Constitution.
Section 97 on its part as a later section enabling the writ of summons issued out of any court of a state or the Capital Territory in Section 26, to be served outside the state whose court had issued it or the Capital Territory, as the case may be, says in addition to any other endorsement or notice “required by the law of such state or the capital Territory”, have endorsed on the writ, the notice set out therein. Once again, these provisions manifestly deal with the service of a writ of summons issued “out of any court of a state or the capital Territory” provided for in Section 96.
In essence, the provisions apply to writs of summons issued by a State High Court or the Federal Capital Territory which is to be served on a defendant at an address outside the territorial boundaries of the issuing state or Federal Capital Territory. The salient and vital aspect and import of the Sheriff and Civil Process Act and in particular, these provisions, that should be discerned, are that they provide for service of a writ of summons issued by a court of any of the States of the Federation or the Federal capital Territory outside the territorial boundaries and jurisdiction of such a court and the states.
The Federal High Court established by section 249(1) of the Constitution, as the name clearly shows, is a High court for the Federation of Nigeria, comprising all the thirty-six (36) States and the FCT as set out by the Constitution itself. The territorial boundaries of the Federation of Nigeria are the limit 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. In this regard, Order 13, of the Federal High Court, Rules 2000, applicable to the Appellants’ case, dealing with service out of jurisdiction, has interpreted “out of jurisdiction” used therein in Rule 31 as follows:-
“31. In this Order “out of Jurisdiction” means out of the Federal Republic of Nigeria.”
Thus, all States of the Federation and the Federal Capital Territory are within the territorial jurisdiction of the Federal High Court and all its processes including the initiating processes such as a 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. The issue and service of a writ of summons to be served on a defendant at an address in any State of the Federation and the Federal Capital Territory, is one issued and to be served within and not outside the territorial jurisdiction of the Federal High Court no matter in which State the court was situate and the writ issued by it. I have read the decision of the Supreme Court in the case of owners of MV “ARABELLA” v Nig. Agric. Ins. Corp. (supra) referred to and very heavily relied on by the learned counsel for the Respondents who said it is on all fours with the Appellants’ case because the writ in the case was issued in the Federal High Court sitting at Lagos for service on the 2nd defendant at Abuja without prior leave of that court. The decision by the apex court that the writ of summons was void because no leave of court was granted and it carried no endorsement that it was to be served outside of Lagos, was primarily based on the non-compliance with the mandatory provisions of order 10 Rule 14 of the Federal High Court Civil Procedure Rules, 1976 which required that such leave be obtained before the issue and service of a writ of summons out of jurisdiction. The Rules were said to have force of law, being subsidiary legislations by virtue of provisions of section 18(1) of the interpretation Act and therefore must be obeyed. In my firm view, it was because of the requirement of the leave under the Federal High Court Rules, 1976 that the apex court held that the provisions of Sections of the Sheriff and Civil Processes Act, guided the service of the processes of the Federal High Court as a court established by the national Assembly.
The Federal High Court Civil Procedure Rules applicable to the Appellants’ writ of summons were the 2000 Rules of that court, in force at the time material to this appeal. In Order 6, Rule 12(1) of the 2000 Rules, provisions that are impair material with the provisions of Order 10 Rule 14 of the 1976 Rules considered by the Apex Court in the above case, made. They are as follows:-
“ORDER 6.
WRIT OF SUMMONS
12-(1) No writ which, or notice of which, is to be served out of the jurisdiction shall be issue d without leave of the court.”
RULE 13 then provides that-
“13. Issue of a writ takes place upon it being signed by a Judge in chambers.”
As seen earlier, out of jurisdiction by the interpretation in Order 13, Rule 31 of the Rules, means out of the Federal Republic of Nigeria.
The learned counsel for the Appellants is right that the case of Owners of MV “ARABELLA” v Nig. Agric Ins. Corp. (supra) was decided on the 1976 Rules of Court applicable at the time which were not said to have similar provisions to Order 13, Rule 31 of the 2000 Rules applicable to the Appellants’ case. Even if such provisions were contained in the 1976 Rules, the attention of the Supreme Court was not drawn to them and so they were not considered in the case.
However since the Rules of the Federal High Court were made subject to an Act of the National Assembly, under Section 254 of the Constitution, it would appear to me that the interpretation in Order 13 Rule 31 of the 2000 Rules is subordinate to the provisions of Section 97 of the Sheriff and Civil Process Act enacted by the National Assembly and interpreted by the Apex Court in the Owners of MV “ARABELLA” case. Akintan, JSC, in his concurring judgment in the case had put the issue beyond argument when he said, at page 226 -227 of (2008) 4-5 SC, 189, that:
“The Sheriff and Civil Process Act, (Cap 407, Laws of the Federation of Nigeria, 1999), according to its heading, is ” an Act to make provision for the appointment and duties of sheriffs, the enforcement of judgments and orders, and the service and execution of civil process of the courts throughout Nigeria.” In Section 19(1) of the Act, which is the interpretation Section, “court” is defined as “includes a High Court and a Magistrate Court.”
“It is not in doubt that the provisions of the said Section 97 of the Act, are applicable to all High Courts, including the Federal High Court. The said provisions, in my view have nothing to do with the coverage of the jurisdiction of the Federal High Court, which is nationwide. It is therefore a total misconception to believe that the provisions of the section are inapplicable to the Federal High Court because the jurisdiction of that court covers the entire nation.” (underline supplied).
That position of the law was affirmed in the later case of Drexel Energy v Trans International Bank Ltd. (supra) by the apex court to make it settled.
In spite of my firm view that by the plain intendment of the provisions of Section 249(1) of the 1999 Constitution, that the Federal High Court is a court whose territorial jurisdiction covers all the Federating States and the Federal Capital Territory and that the Sheriff and Civil Process Act was meant to apply to processes of State High Courts and High Court of the Federal Capital Territory, I am bound by the principle of law stated by the apex court since the issue decided by it is the same as the one under consideration in this appeal. The facts of the two cases in respect of the issue and service of a writ of summons by the Federal High Court sitting in one State, at another State are the same despite of the provisions of Order 13, Rule 31, of the 2000 Rules and so I agree with the learned counsel for the Respondents that the two cases are on all fours on the facts and issue decided. The apex court had stated in that case that the principle of law is the same even in respect of writs under the undefended list, which was before it and that answers the contention of the learned counsel for the Appellants on the Point.
In the final result, for the foregoing reasons, I find no merit in this appeal and dismiss same. The decision by the lower court setting aside the issue of the writs of summons in the three suits from which these appeal arose, by it at Uyo for service on the Respondents at Lagos, and the service of such writs on the Respondents at Lagos without the prior leave of that court in contravention of the provisions of Section 97 of the Sheriff and Civil Process Act, is affirmed by me. There shall be costs assessed at N50,000.00 to be paid by the Appellants in favour of the Respondents.
UZO I. NDUKWE-ANYANWU, J.C.A.:
I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba JCA.
I agree with his reasoning and final conclusions. I abide by all the orders contained in the lead judgment and adopt them as mine.
ONYEKACHI A. OTISI, J.C.A.:
I had the privilege of reading, in draft form, the Judgment delivered by my learned Brother, Mohammed Lawal Garba JCA. The issues raised in this appeal have been comprehensively addressed by my learned brother; and, I am in agreement with his reasoning and conclusion.
I abide by the orders made in the lead Judgment.
