3PLR – HERB V. DEVIMCO INTERNATIONAL B.V
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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HERB
V.
DEVIMCO INTERNATIONAL B.V
COURT OF APPEAL
[LAGOS DIVISION]
21ST JUNE 2001
CA/L/156/99
3PLR/2001/150 (CA)
OTHER CITATIONS
52 WRN 19
BEFORE THEIR LORDSHIPS:
ATINUKE OMOBONIKE IGE, J.C.A (Presided)
CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.C.A
AMIRU SANUSI, J.C.A (Delivering the leading judgment)
BETWEEN
- MR RICHARD HERB
- OXY HOLIDAY OF AFRICA
- OCCIDENTAL PETROLEUM CORPORATION
AND
DEVIMCO INTERNATIONAL B.V.
REPRESENTATION
Prof. A. O. Akanle with A. O. Akanle and Mrs Akpabio for 1st and 2nd appellant/applicants.
- A. Candido-Johnscn with I. O. Johnson for 3rd appellant.
Prof. A. B. Kasunmu SAN with O. M. Adebanjo for respondent
MAIN ISSUES
PRACTICE AND PROCEDURE – COURT – Forum conveniens – factors determining same.
PRACTICE AND PROCEDURE – EVIDENCE – Presumption of regularity – whether applicable to orders made by the Deputy Registrar for service of court processes outside jurisdiction which orders she had no powers to make.
PRACTICE AND PROCEDURE – JURISDICTION – Lagos High Court – whether has powers to exercise jurisdiction capable of being exercised by the High Court of Justice in England pursuant to section 10 of the Lagos High Court Law 1994.
PRACTICE AND PROCEDURE – JURISDICTION – Tortious matters –principles guiding the exercise of jurisdiction by our courts on matters relating to same.
PRACTICE AND PROCEDURE – “Adjudication, determination and decision” – whether an order granting leave to serve process outside jurisdiction amounts to same.
PRACTICE AND PROCEDURE – Distinction between a Registrar and a Judge – purport of the decision in NDIC v. Federal Mortgage Bank (1997) 2 NWLR (Pt. 490) 735 at 760 in relation to same.
PRACTICE AND PROCEDURE – Leave to issue writ of summons outside court’s jurisdiction – exclusive powers of the court or Judge to grant same under order 8 rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1994 – Chief Registrar or Deputy Chief Registrar – whether competent to grant such leave.
PRACTICE AND PROCEDURE – Practice direction authorising the Chief Registrar or his Deputy to determine application to issue court processes outside the jurisdiction of Lagos State – whether a nullity.
WORDS AND PHRASES – “Adjudication, determination and decision” – whether an order granting leave to serve process outside jurisdiction amounts to same.
MAIN JUDGMENT
AMIRU SANUSI, JCA:(Delivering the leading judgment) This is an appeal against the ruling of Segun J (as he then was) of Lagos High Court (Lagos Division) delivered on 10th of February 1999 in suit No. LD/L/1074/98. The facts which gave rise to this appeal can be summarised as follows. The respondent (Devimco) is a French company. It has a ten year contract in 1994 for the management of Eko Hotels Limited. After two years of the said contract of management of the said hotel the latter terminated the contract on the ground that there was no management agreement executed between the parties even though an agreement dated 22nd of December 1994 was executed. Following the termination Devimco instituted suit No 2238/97 against Eko Hotels for breach of contract.
At the time the agreement for the management of the Hotel was negotiated and executed, the Lagos State Government was holding 51% of the shares of the hotels while the 3rd defendant (now 3rd appellant (i.e. Occidental Petroleum Corporation) had 49% share holding through one of its subsidiaries i.e. the 2nd defendant/2nd appellant – Oxy Holiday of Africa). As for the 1st defendant Mr Richard Herb/1st appellant, he was at that material time a director of the 2nd defendant/appellant and also a director of the said Eko Hotels Limited. Later the shareholding of the Eko Hotels Limited changed with 25% shareholding going to Lagos State Government and 75% going in favour of the 3rd defendant/appellant, Occidental Petroleum Corporation. This later change in share structure effected after the execution of the management agreement between the respondent – in this appeal Devimco, and the Eko Hotels and as a result of this change, the 1st defendant/appellant became the chairman of Eko Hotels Limited. Having become the chairman of the Hotels as a result of this change, the 1st defendant/appellant approached the plaintiff/respondent for a re-negotiation of the terms and conditions under which Devimco i.e. respondent in this appeal was managing Eko Hotels. Negotiations and some correspondence ensued between the 1st defendant (Mr Richard Herb) and Devimco, the respondent i.e. plaintiff at the lower court. The negotiations were written by the 1st defendant /appellant on the letter headed paper of the 2nd defendant/appellant using the latter’s London address and Devimco address in France. The contents of the letters exchanged between the parties later became the subject matter of the respondent’s/plaintiff (Devimco’s) action against the three defendants/appellants for inducement of breach of contract between Devimco and Eko Hotels Ltd. Initially, there was before the Lagos High Court suit No LD/2238/97 instituted by Devimco against the Eko Hotels Ltd before Alogba J. in which the plaintiff (Devimco) was challenging the determination of the management agreement between the two parties in which the plaintiff (Devimco) was alleging some inducement by the three appellants in this case. In the said suit the plaintiff Devimco applied for the joinder of the three appellants which said application was refused by Alogba J.
Upon the refusal by Alogba J. to join the three defendants/appellants, the present respondent, Devimco instituted a fresh suit i.e. LD/L/1074/98 against the three defendants/appellants. The 1st and 2nd defendants/ appellants were resident in England whilst the 3rd defendant/appellant is resident in the United State of America. The plaintiff/respondent thereupon filed an ex parte motion in the said Lagos High Court seeking leave to issue and serve the writ of summons and statement of claim on the defendants outside the jurisdiction of the court through DHL service using their respective addresses in England and United State. It was claiming damages for inducement of breach of contract. The ex parte application was listed before the Deputy Chief Registrar of Lagos High Court for consideration. The Deputy Chief Registrar (Legal) duly considered the application and granted the plaintiff/respondent leave to issue and serve the three defendants /appellants out of jurisdiction. In response the three defendants/appellants filed summons before the Lagos High Court seeking for among others, order to set aside or discharge the order for leave to issue the writ of summons, service of writ or any other order made against the appellant; and striking out or dismissing the claim against the appellants on the grounds that:
(a) The Deputy Chief Registrar lacks the competence to order the issuance and service of the writ and other processes on the appellants outside the jurisdiction.
(b) The Lagos State High Court can not exercise jurisdiction over the appellants.
(c) Forum non conveniens.
The respondent opposed the summons of the appellants. The lower court took arguments from both parties on 10th February, 1999 the trial court delivered its considered ruling in favour of the respondent and held that order made by the Deputy Chief Registrar granting the leave to issue and serve processes outside jurisdiction, was proper. The trial court also held that it had jurisdiction to entertain an action on tort committed outside its jurisdiction.
Aggrieved by the decision of the lower court, the 1st and 2nd appellants on one hand and 3rd appellant on the other filed an appeal against the said lower court’s ruling delivered on 10th February, 1999 by Segun J. (as he then was). Prof. A. Akanle of counsel to 1st and 2nd appellants filed six grounds of appeal in his notice of appeal. Out of these grounds of appeal he distilled three issues for determination which are as follows:
- Whether the Deputy Chief Registrar, High Court of Lagos State has jurisdiction to sit as a court to hear and determine an ex parte application for the issuance of court processes on the defendants/appellants who are resident outside Nigeria.
- Whether the High Court of Lagos State can exercise jurisdiction over a non-resident defendant who was served outside Nigeria and in respect of a tort committed outside Nigeria.
- Whether Lagos, Nigeria is a convenient forum for the trial of a civil action in tort:
(a) where neither the plaintiff nor the defendants are resident in Nigeria, and
(b) where the alleged tort was committed through a letter written by the 1st and 2nd defendants from the United Kingdom to the plaintiff in France.
The learned counsel for the 3rd appellant formulated three issues for determination in this appeal which he lifted from four grounds of appeal. These formulated issues are:
(i) Whether a Deputy Chief Registrar of the High Court of Lagos State can exercise the constitutional power of a High Court Judge to invoke excessive jurisdiction over the appellant outside Nigeria.
(ii) Whether this is a proper case for service on the appellant outside jurisdiction.
(iii) Whether the existence on one hand and the suppressed fact on the other of a proper decision on the same question were not compelling ground to set aside the ex parte order or service.
In response, the respondent identified two issues for determination in its brief of argument filed on 6/2/2001. The issues are:
(a) Was it unconstitutional for the Chief Judge of Lagos State to issue practice direction to the Deputy Chief Registrar (Legal) to take application for the granting of ex parte application for leave to serve the originating processes on defendants outside the state?
(b) Was leave to serve the proceedings in the instant case proper and in compliance with the provisions of order 8 particularly rules (1) (f) and (h) of the Lagos State High Court (Civil Procedure) Rules of 1994?
I think the issues formulated by the counsel for the 1st and 2nd appellants have accommodated and subsumed all the issues identified by the counsel of both the 3rd appellant and the respondent, I therefore propose to be guided by them in the determination of the appeals as they are more relevant to this appeal. On the 1st issue for determination it is not in dispute that the Deputy Chief Registrar of the lower court granted ex parte application by the respondent to issue and serve the writ of summons and statement of claim of the plaintiff /respondent on the addresses in England (for 1st and 2nd appellant) and the United States of America (for 3rd appellant). In the ruling against which this appeal is lodged the learned trial Judge found that the Deputy Chief Registrar has jurisdiction to so act by virtue of section 83(3) of the High Court Law and under orders 44 rules 17-22 and 8 rule 1 of the Lagos State High Court (Civil Procedure)Rules of 1994.
The learned counsel for the 1st and 2nd appellants argued that such powers are only vested in the court or a Judge in chambers and not in a Chief Registrar. It was further argued that the provisions of order 44 rules 17-22 of the said rules lists the actions the Chief Registrar or his Deputy can exercise and such actions/powers do not include powers to grant leave to serve processes outside the court’s territorial jurisdiction. It was further submitted that although the Chief Judge of Lagos High Court could issue practice direction on some matters, no such direction was granted and even if there was such practice direction such can be regarded as illegal as a substantive law has exclusively given such powers to the court or Judge in chambers only and can therefore not be extended to any Chief Registrar or his Deputy.
The learned counsel for the 3rd appellant also argued in the same vein with the counsel of 1st and 2nd appellants. The learned counsel added that the jurisdiction of the trial court and Judges alike is governed by the constitution or law and not by rules of court or practice direction issued by the Chief Judge and the relevant law vested such powers in the Judge or court only. Reliance was placed in NDIC v. Federal Mortgage Bank of Nigeria (1997) 2 NWLR (Pt. 490) 735 at 760.
Replying to the learned counsels arguments on behalf of the appellants, the learned counsel for the respondent argued that although under sections 236 and 238 of the 1979 Constitution (as amended) the High Court has unlimited jurisdiction to hear and determine any civil proceedings, the matter of how a defendant appears in court or how he was brought to court cannot be said to fall within the preview of the Judge hearing and determining the claim before him. He referred to the provisions of section 239 of the 1979 Constitution. The learned counsel for the respondent submitted that rules of court made provisions for service outside jurisdiction of courts to be allowed by the court or Judge in chambers and added that these rules derive their authority from the constitution and the Lagos High Court Law. The learned counsel disagreed with the appellant’s counsel’s argument that where a rule provides as in order 8 that a Judge could order a person to be brought to court, no other person can exercise such a right even when provisions exist in the rule authorising such other person so to do. He argued that since the rules authorises Deputy Chief Registrar to exercise power to order substituted service or service out of jurisdiction that can not be regarded as a derogation of the powers of court or Judge to hear and determine disputes brought to court. On the reliance by counsel to 1st and 2nd appellants on the case of NDIC v. Federal Mortgage Bank (supra) to the effect that the DCR was usurping the function of the trial Judge as conferred by the Constitution, he argued that the facts in that case can not be applicable to the situation of the instant case. He referred to the case of Adesanya v. Adegoke Motors (1988) 3 NWLR (Pt. 109) 250 especially the dictum of Oputa JSC (as he then was) and also added that the case dealt with the constitutionality of “Registry Judgment” by Chief Registrars as provided in the rules of court.
The learned counsel for the respondent also submitted that section 83(4) of the High Court Law of Lagos State provides that Deputy Chief Registrars have the power to perform duties assigned them under the rules with regard to businesses of courts even though such duties can not extend to adjudication i.e. hearing and determination of disputes. He concluded that duties not entailing hearing or determination of disputes performed by Deputy Chief Registrar cannot be termed as “unconstitutional” as order of substituted service which he referred to does not entail adjudication at all. Such action by the deputy Chief Registrar being covered by practice directive validly and legally issued by the Chief Judge of Lagos State makes the Deputy Chief Registrar’s action legal and valid by virtue of the provisions of section 83(4) of Lagos State High Court Law. Under the said provisions added the learned counsel for the respondent, the Chief Judge can make an order vesting powers in the Deputy Chief Registrar over and above those provided in order 43 rule 18. That according to the learned counsel, was all that the learned Chief Judge did when he issued the practice direction. To the learned counsel the Chief Judge can by way of issuance of practice direction, assign Deputy Chief Registrar to perform any duties not specifically assigned to him (DCR) under the rules in as much as such duties so assigned do not involve adjudication or hearing and determination of disputes of litigants.
Still on the issuance and service of writs outside jurisdiction, the learned counsel for the respondent submitted that there is presumption of regularity in favour of the Deputy Chief Registrar. That is to say when an official act is performed by an official of government, there is the presumption that such an officer has the authority so to do (see section 150(l) and (2) of Evidence Act.
I think it will be pertinent at this stage to examine the relevant provisions of laws and rules of the lower court which are cited and relied on by the parties in order to determine the constitutionality or otherwise of the ex parte order made by the deputy Chief Registrar with regard to the leave she granted to issue and serve the writ on the three appellants outside the jurisdiction of the lower court. I shall below reproduce the relevant provisions.
Section 83(3) and (4) of the Lagos High Court Law Cap 60 Laws of Lagos State of Nigeria of 1994, provides as follows:
“83 (3) The Chief Registrar shall perform such duties in execution of the powers and authorities of the High Court as may be assigned to him by rules of court or, subject thereto, by any special order of the Chief Judge
(4) The Registrar, Deputy Chief Registrar and other officers appointed under this section shall perform all such duties with respect to business before the High Court as may be directed by rules of court or any order of the Chief Judge.”
Order 8 rule (1) of the High Court of Lagos State (Civil Procedure) Rules Cap 61 Laws of Lagos State of 1994 Vol. III also provides as below:-
“Service out of Nigeria of a writ of summons may be allowed by the court or a Judge in chambers wherever….”
Also order 44 rule 18 provides thus:
Rule 18 –
“In respect of the following matters, the Chief Registrar may transact all such businesses and exercise all such authority and jurisdiction as may be transacted or exercised by a Judge in chambers.
(a) applications for the taxations and delivery of bills of costs and application for the delivery by any legal practitioner of deeds documents and papers.
Applications for time to plead and for leave to amend writ or pleadings.
(b) taking of an account in any case where by the orders and rules of the High Court such account may be ordered to be taken by a Judge in chambers, and where in the particular case, it has been ordered that the account be taken by the Chief Registrar.
(c) the taxation of bills of costs.
(d) applications leading to the issue of the grants of probates of the wills or letters of administration of the Estates of deceased persons in non-contentious or common form probate business.”
The practice direction No.CJHCS/PD/1/97 which the respondent argued that it gave the Chief Registrar the power to entertain the ex parte application for leave to issue and serve the writ outside the lower court’s jurisdiction will be reproduced, below for ease of reference. It reads thus:-
“ORDER 44 RULES 17-22
(i) The jurisdiction vested in the Chief Registrar under order 44 rules 17 to 22 of the High Court Law shall be exercised in the Lagos and Ikeja Judicial Division by the Chief Registrar and the two Deputy Chief Registrars in each judicial divisions.
(ii) The Chief Registrars list shall be published weekly in the cause list.”
It is not in dispute that under the provisions of section 83(3) and (4) of the High Court of Lagos State Law the Chief Registrar or his deputy can perform some duties assigned to him such as those specifically mentioned in order 44 rules 17-22 of the lower court’s rules. The salient issue now is that does such jurisdictional power provided include power to grant leave to issue writ of summons outside the court’s jurisdiction? I think not. The provisions of order 8 rule 1 clearly and unequivocally state that it is the court or Judge in chambers who may issue such orders. There is no how by any stretch of imagination one can say that such power given to the Judge or court can be shared with the court’s Chief Registrar or his Deputy or to say that the word “court” or “Judge in chambers” includes a Chief Registrar of the court or his Deputy. Even though section 83 (3) and (4) of the High Court Law provide that the Chief Registrar can be assigned some duties by the rules of the court or by the Chief Judge through practice direction I think that does not and should not include duties preserved exclusively to the court or Judge in chambers. In other words, in a situation where rules of court specifically authorise the doing of an act by a named functionary no practice direction can legally assign such power to another functionary different from the one assigned by the rules of court. This is more so when one considers the fact that “direction” is inferior in force to the provisions of rules of court. It is my view therefore that order 8 rule 1 vest the duty of issuing or service of process outside jurisdiction in court or Judge in chambers only. Any power given to Chief Registrar by sections 83(3) & (4) or under any practice directions can only apply to areas not covered by the rules of the court.
Having said so, let me now come to the practice direction in question. In his ruling now appealed against the learned trial Judge had this to say: –
“…Under the latest practice direction the two Deputy Chief Registrars are authorised to sit as a court and perform the duties assigned to them under order 44 rules 17-22 HCLS(CP)R … the Deputy Chief Registrar can therefore take application for service of a writ of summons out of Nigeria and/or within Nigeria……..the Deputy Chief Registrar made the order pursuant to the order of the Chief Registrar a power vested in the Chief Judge by the provisions of section 83(3) High Court Law.”
I have above extensively copied and indeed reproduced the entire “practice direction” in question. That is to say the practice direction No. CJHCLS/PN/1/97 relied on by the learned trial Judge. I am unable to see anywhere in the “practice direction” where the Chief Judge of Lagos State authorised the Chief Registrar or his Deputies to hear and determine any ex parte application to issue and serve court process such as writ of summons on parties resident outside the trial court’s jurisdiction. I am also to add that even if there is such practice direction giving such power to Chief Registrar or his Deputy, such direction is in my view ultra vires, null and void. It is also unconstitutional for reasons I have given earlier. The learned trial Judge’s finding above is in my view, incorrect as it was partly based on an inexistent instrument or on an illegal constitutional instrument.
On the submission of the learned counsel for the respondent that a practice direction can confer jurisdiction on a Deputy Chief Registrar to perform duties not specifically assigned to him under the rules in as much as such duties do not involve adjudication or hearing and determination of the rights of litigant, I think the learned Senior Advocate of Nigeria is giving the word “adjudication” or “hearing and determination” narrow or restrictive meaning. In the instant case the DCR makes an order granting leave to serve process outside jurisdiction. Much as such order is discretionary even if granted by court or Judge in chambers it amounts to a decision and is appeallable even though discretionary in as much as it was not granted judicially and judiciously or if by a person not authorised so to grant. An aggrieved party can appeal against it. In my view it amounts to adjudication and determination of rights of the litigants. It also amounts to a decision. On the learned respondent’s counsel’s submission that the case of NDIC v Federal Mortgage Bank (supra) is irrelevant to the instant case, I am not at all persuaded by that argument. Much as the said case (NDIC’s case) relates to “registry judgment” entered by an assistant registrar the import this court intended to pass across is that a “Registrar” is not a court or “Judge”. He can not therefore handle matters which could amount to “adjudication” or which have the effect or force of a decision. In that case this court had this to say per Acholonu JCA at page 769:
“The message intended to pass across is that is a Registrar competent to enter judgment? Is the Registrar a court in Nigeria or equivalent to the position of a Master in chambers in England? I think not. His position is prescribed by the High Court Law of Lagos State. The High Court (Civil Procedure) Rules deriving its powers from the High Court Law cannot confer powers of judicial adjudication on the Registrars. Such an act would offend the tenor and intendment of the constitution. A state of affairs in which the Registrar can do what the Judge can do in exercise of his powers conferred by statutes is retrogressive as it seeks to inbibe the Registrar with powers far beyond what he should have. By our primary law, the Registrar is not equal to a Judge in all circumstances.”
In my view therefore the above mentioned case is relevant to the extent that the ex parte order made by the Deputy Chief Registrar on leave to issue and serve outside jurisdiction amounts to an adjudication and has amounted to usurpation of the powers and function of a Judge and on that premise such act of the DCR is unconstitutional, illegal null and void and is also ultra vires the function of the DCR.
On the issue of presumption of regularity raised by the learned counsel for the respondents Prof. Kasunmu SAN in his brief of argument under section 150 of Evidence Act of 1990 (as amended), I do not think such presumption is applicable to the facts of the instant case. Presumption of regularity can, not be inferred in this case because as I held above the DCR completely lacks power to entertain and grant the order prayed by the ex parte application as she did. I stated above that not only that the DCR lacks power to usurp the powers of determining a dispute between parties but also the purported “practice direction” (even if it exists at all, it can not authorise or vest powers of a court or Judge in a court registrar. I for these reasons decline to make or draw any such presumption. I therefore resolve the 1st issue in favour of the two set of appellants namely 1st and 2nd appellant and the 3rd appellant.
I shall now proceed to take the 2nd and 3rd issues together. The second issue whether the Lagos State High Court can exercise jurisdiction over the appellants who are non-resident in Nigeria on action of tort committed outside Nigeria. There is no dispute between the parties that the 2nd and 3rd appellants had their registered offices outside Nigeria and both of them are companies not registered in Nigeria. Also the 1st appellant is a non-Nigerian. He is neither domiciled nor ordinarily resident in Nigeria. It is submitted on behalf of the 1st and 2nd appellants that in determining the competence of the Lagos High Court to try an action in personam against the 1st and 2nd appellants who reside outside the jurisdiction of the lower court, the plaintiff (respondent) must establish that the action is founded on a tort committed within the court’s jurisdiction i.e. Lagos, Nigeria. The appellant now queries “was the tort of inducing the breach of contract committed in Lagos.”
The learned counsel argued that the alleged offensive letters were written in London, England and were sent and received in Cedex, France. The plaintiff according to the learned counsel did not plead in his statement of claim that the letters were received in Lagos. He also argued that even if there was any inducement through the letters written by 1st and 2nd defendants (appellants) such inducement took place in London where the letters were written or in France where they were received. There was therefore no how the defendants (appellants) could have committed the tort of inducing a breach of contract in Lagos through instrumentality of letters not written to and not received in Lagos. He argued that the case of Ichi Canada Ltd v. Yamuchi Rubber Industry Co (1983) 144 Dominion Law Report 3rd 533 relied upon by the court is wrongly relied on in that it focuses on the damages sustained from the tort and runs riot to the purport of the old order 11(1)(h) which requires English courts to be more concerned with where the action is done and not where the harm is suffered. He relied on George Muriro Ltd v. American Cynamid and Chemical Corporation (1944.)KB 432. See also Decay & Morris “The conflict of Law” 10th edition by JHC Morris Vol. 172 page 171.
The learned appellant’s counsel further submitted that the trial court was wrong in ‘holding that the place of the wrong was in Lagos not London where 1st and 2nd appellants wrote their letter to the plaintiff/respondent in France. He also argued that having interest or shares in Eko Hotels is not enough to meet the requirement of order 8 rule 1(f) of the lower court’s rules.
None of the appellants was served within the jurisdiction of the lower court as envisaged by order 8 rule 1.
The learned counsel for the 3rd appellant also submitted that on the authority of Nigerian Ports Authority v Panalpina (1974) NMLR 82 at 84 is wrong (sic) and not relevant to in personam jurisdiction which is a matter of proper service and international law. It was also argued that the lower court’s reliance on Benson v. Ashiru (1967) NMLR 363 NLR is irrelevant to determine whether or not there was proper service under order 8 of the rules of the lower court. It was further argued that the instant case is not a case of service outside the jurisdiction of the lower court and for that reason the case Benson v. Ashiru (supra) is not relevant. I shall now turn to consider the provisions of order 8 rule 1 of the High Court of Lagos State (Civil Procedure) Rules which reads-
“1. Service out of Nigeria of a writ of summons or notice of a writ of summons may be allowed by the court or a Judge in chambers whenever
(a) the whole subject matter of the action is land situate within the jurisdiction (with or without rents or profits); or
(b) ———————————————————
(c) ———————————————————
(d) ———————————————————
(e) the action is one brought against the defendant to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or other relief for or in respect of a breach of a contract-
(i) made within the jurisdiction.
(ii) made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction; or
(iii) by its terms or by implication to be governed by the relevant laws in Lagos State, or is brought against the defendant in respect of a breach committed within the jurisdiction of a contract wherever made, even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the jurisdiction which rendered performance of the part of the contract which ought to have been performed within the jurisdiction.
(f) ———————————————
(g) ———————————————
(h) any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served with the jurisdiction.”
I think it is apt to at this stage to refer to some of the averments of the respondent/ plaintiff in his statement of claim filed at the lower court which will assist in determining whether the lower court has jurisdiction or not. The statement of claim reads thus:
“5. The plaintiff avers that by an agreement dated 2nd December 1994 the plaintiff company was engaged by Eko Hotels Limited to manage its Hotel for a period of ten (10) years commencing from the 2nd December, 1994 with an option to renew same for five(5) years.
- The plaintiff avers that the agreement referred to above was sequel to negotiations and meetings held between officials of the plaintiff company and officials of Eko Hotels Limited.
- The plaintiff avers that pursuant to the agreement recited above it commenced the management of Eko Hotel on the 2nd day of December, 1994 until it received a letter from the 1st December to the effect that the contract agreement under which the plaintiff should renegotiate new terms and conditions for the continued (sic) management of Eko Hotels Limited.
- The plaintiff avers that it was put fully in control and management of Eko Hotels Limited and thereupon managed the Hotel without any reservation until the interference and threats to the 1st defendant acting on behalf of the 2nd defendant
- Further to paragraph 8 above Eko Hotels subsequently terminated the plaintiff’s appointment by a letter dated 8th August, 1998.
- The plaintiff avers that the unlawful termination of its management agreement was master minded and induced by the 1st and 2nd defendants to the knowledge of the 3rd defendant.
- The 1st and 2nd defendants knowing at material times of the said agreement between Eko Hotels Limited and the plaintiff wrongfully and with intent to injure the plaintiff procured and induced Eko Hotels to break their contract with the plaintiff and to refuse to perform the same evidenced by the 2nd defendant’s letters signed by the 1st defendant dated 21st March, 1997, 21st April, 1997 which were written at the instance and knowledge of the 3rd defendant.”
Section 10 of the Lagos State High Court Law of 1994 makes a general provisions on the jurisdiction of the High Court which read thus:
“The High Court shall, in addition to any other jurisdiction conferred by the constitution of the Federation or by this or any other enactment possess and exercise within the limits mentioned in, and subject to the provisions of the constitution of the Federation and this enactment, all the jurisdiction, powers and authorities which are vested in or capable of being exercised by the High Court of Justice in England.”
From the wordings of the provisions reproduced above, it is correct to say that the trial court can exercise jurisdictions which are capable of being exercised by the High Court of England. See Nigeria Port Authority v. Panalpina World Transport & Ors (1974) 1 NWLR 82 at 88. In that case the Supreme Court had this to say on page 89:-
“The High Court of Lagos is supposed to have and exercise the same type of jurisdiction vested in Her Majesty’s High Court of Justice in England. Those courts exercise jurisdiction not only in respect of domestic matters and matters which are completely within the bounds of domestic law but also with respect to matters which come properly within the preview of private international law. It is therefore not surprising that learned counsel for the appellant’s in this case had sought in aid of his argument the jurisdictional rules of private international law which Her Majesty’s High Court of Justice in England would have employed in deciding whether or not to exercise jurisdiction in this type of matter.”
The learned counsel for the 1st and 2nd appellants argued in his reply brief that the provisions of order 8 rule 1(h) does not apply to the instant case since none of the 3 appellants was served earlier. I think that argument is porous since the issue at stake is whether or not the High Court served in strict sense. Similarly, there is no gainsaying that the cause of action giving rise to the instant suit relates to tort issue governing exercise of jurisdiction by our courts on matters relating to tort is not without decided authorities in our laws. For example in the case of Benson v. Ashiru (supra) the Supreme Court had cause to make pronouncement on the issue when it relied on the English case of Phillips v. Eyre (1870)LR 6 QBI and said as follows:
“The Rules of Common Law of England on questioning of Private International Law apply in the High Court of Lagos. Under these rules an action of tort will lie in Lagos for a wrong alleged to have been committed in another part of Nigeria if two conditions are fulfilled. First the wrong must be on (sic) such a character that it would have been actionable if it had been justifiable by law of the part of Nigeria where it was done.”
Although the learned counsel for the appellants opined that the above pronouncement of the Supreme Court does not apply to the situation of the instant case since the appellants are based or resident outside Nigeria, I hold a different view on that. My understanding of the pronouncement is that it attempts to resolve issue on jurisdiction over parties living in places other than within the jurisdiction of a trial court. For that reason alone, the authority of Benson v. Ashiru is apposite.
Thus, in my view, the combined effect of the provisions of section 10 of Lagos High Court Law, order 8 rule 1, the decided authorities cited and the depositions in the statement of claim made me conclude that Lagos State High Court can, in the surrounding circumstance of this case exercise its jurisdiction on the three appellants even though they are non-resident in its area of jurisdiction. The second issue is therefore resolved against the two sets of appellants.
The 3rd issue for determination raises the question of forum non conveniens. It queries the decision of the trial court that Lagos is the most convenient place to hear the suit. It is the contention of the appellants that it works against the interest of justice for Lagos to hear the suit since the defendants/appellants and their witnesses are based outside this country. Reliance is placed on Spiliade Maritime Corporation v. Can Sulex Ltd (1987)AC (460). It was argued that the 1st and 2nd defendants/appellants have no any relations whatsoever with the 3rd defendant/appellant and also had no any interest in Eko Hotels Ltd. It is not contestable that while the respondent/plaintiff is based in Nigeria, the 1st and 2nd appellants are resident in England. The 3rd appellant on the other hand is based in the United States of America. There is also raised in the brief of appellant, the question whether France or United Kingdom where the exchange of correspondence between the plaintiff and 2nd defendants/appellants took place could be a more convenient venue. In determining where the appropriate forum is, the court must weigh, all factors which appear in the circumstance of the case. See Spillade Maritime Corporation v. Can Sulex Limited (supra). If the case has substantial connection in another jurisdiction then that forum is appropriate.
Inconvenience or cost of litigation is not however a deciding factor. Interest of parties and indeed end of justice are most paramount in deciding the forum. The court however has discretion in taking decision on the forum, which said discretion must of course be exercised judicially and judiciously. I think considering the surrounding circumstance of the case especially the different residents of the parties in different countries I feel the lower court was right in holding Lagos to be the forum conveniens.
In the result, the appeal succeeds in part and fails partially. For avoidance of doubt, on the authority of Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664 the ex parte order granting leave to issue and serve writ of summons outside the court’s jurisdiction is a nullity since it was made by Deputy Chief Registrar and not a Judge and as such it was made without jurisdiction. That ex parte order is therefore hereby set aside. I however hold that Lagos State High Court can exercise jurisdiction on the three appellants. Each party should bear its own cost.
ATINUKE OMOBONIKE IGE, JCA: I have had the privilege of a preview of the judgment just delivered by my learned brother Sanusi JCA. I agree with his reasoning and conclusions. I also agree that the appeal succeeds partially and fails partially. I abide by the consequential orders of my learned brother including his order as to no cost.
CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JCA: I read in draft the judgment of my learned brother Sanusi JCA just delivered and I agree with him that the appeal succeeds in part. I also abide by the orders therein contained.
Cases referred to in the judgment
Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt. 109) 250
Benson v. Ashiru (1967) NMLR 363
George Muriro Ltd v. American Cynamid and Chemical Corporation (1944) KB 432.
Ichi Canada Ltd v. Yamuchi Rubber Industry Co. (1983) 144 Dominion Law Report 3rd 533.
NDIC v. Federal Mortgage Bank of Nigeria (1997) 2 NWLR (Pt. 490) 735
Nigeria Port Authority v. Panalpina World Transport (1974) 1 NMLR 82.
Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664
Phillips v. Eyre (1870)LR 6 QBI.
Spiliade Maritime Corporation v. Can Sale Ltd (1987)AC 460.
Statutes referred to in the judgment
Lagos High Court Law Cap 60 laws of Lagos State of Nigeria 1994 sections 10, 83 (3) (4).
Constitution of the Federal Republic of Nigeria 1979 section 236, 238, 239
Evidence Act section 150 (1) and (2).
Rule of court referred to in the judgment
High Court of Lagos State (Civil Procedure) Rules Cap 61 Laws of Lagos State 1994; order 8 rules (1)(f) and (h), order 44 rules 17-22, order 8, rule 1.
Book referred to in the judgment
Morris J.H.C: The conflict of law 10th edition Vol. 172 p. 171 JHC.
