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FIDELITY BANK PLC v. THE M.T. TABORA & ORS

(2018) LPELR-44504(SC)

In The Supreme Court of Nigeria

On Friday, the 18th day of May, 2018

SC.106/2010


Before Their Lordships

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria


Between

FIDELITY BANK PLC - Appellant(s)

AND

1. THE M.T. ''TABORA''
2. NORTHERN FOX SHIPPING N.V.
(THE OWNERS OF M.T. ''TABORA'')
3. ERES N. V. BELGIUM
(THE CHARTERER OF THE M.T. ''TABORA'')
4. THE MASTER OF THE M.T. ''TABORA'' - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This is an appeal against the decision of the Court of Appeal sitting in Lagos. The Appellant, as the Plaintiff at the Federal High Court, Lagos, in an action in rem against the ship M. T. TABORA, took out a Writ of Summons on 17th December, 2002. The Writ of Summons was on 15th December, 2002, specially endorsed with the Statement of Claim. The Writ and the Statement of Claim have thereon six (5) Defendants, and they were to be served on the 1st, 2nd and 3rd Defendants, respectively the vessel, THE M.T. TABORA, Northern Fox Shipping (the owners of M.T. TABORA)and Eres N. V. Belgium. The vessel M. T. TABORA was in the Nigerian Waters until 15th December, 2002 when it sailed out of Nigerian Territorial Waters. Thus, the vessel M. T. Tabora, the 1st Defendant, having sailed out of Nigerian Territorial Waters and out of the jurisdiction of the Federal High Court a day before the action was filed on 16th December, 2002 and two days before the Writ of Summons against her was issued on 17th December, 2002.

???On 22nd March, 2005, because the Writ of Summons could not be served earlier, Appellant, as the Plaintiff, then filed a motion ex parte praying for leave of the Federal High Court for the Writ of Summons, the Statement of Claim and the other processes in the action to be served on the Defendants, the Respondents herein, out of jurisdiction. The application ex parte was granted on 8th April, 2005, for the 1st, 2nd, 3rd and 4th Defendants to be served out of the jurisdiction of the trial Federal High Court "by DHL" on the 2nd Defendant, Northern Fox Shipping, P.O. Box 9657, Williamson Curacoa West Indies and Hansa Huis Eernest Van Dijikaai 10, Bus B, 2000 Antwerp Belgium - 10. It was further ordered "that the 1st, 2nd, 3rd and 4th Defendants enter appearance within 35 days of the date of dispatch of the processes herein by DHL Courier." On the said 8th April, 2005, vide the same application, the 5th and 6th Defendants were struck off the Writ of Summons, and consequently out of the action. 

???On 12th April, 2005, the Respondents, as the remaining defendants, applied to the Federal High Court for an order setting aside the orders it made concerning them on 8th April, 2005. They had apparently become aware of the action pending against them. The trial Federal High Court heard the parties on the motion filed on 12th April, 2005.
In its ruling delivered on 20th December, 2005 the trial Federal High Court granted the application, discharged the order made on 8th April, 2005 and set aside the order for service out of jurisdiction, through DHL courier, the writ of Summons and the processes in the action on the Respondents, the remaining defendants. Meanwhile, before the Ruling delivered on 20th December, 2005, the Appellant, as the Plaintiff had filed on 8th December, 2005 an application for final judgment alleging that the Defendants had defaulted in entering appearance and filing their defence to its action. Against this motion, filed on 8th December, 2005, the Respondents filed on 20th February, 2006 Notice of Preliminary Objection. Both the application for final judgment and the Preliminary Objection to it were very fiercely contested. The ruling on the Preliminary Objection was delivered on 5th June, 2005. The Appellant, as the Plaintiff, did not Appeal the decision contained in the Ruling of 20th December, 2005.

???In its Ruling delivered on 5th June, 2006 on the application for final judgment, the trial Court refused the application. 
The Appellant Appealed the decision vide its Notice of Appeal filed on 13th June, 2006. The Respondents also filed Notice of Preliminary Objection to the Appeal on the ground that the Appellant did not Appeal the decision of 20th December, 2005. The Court of Appeal, Lagos Division heard the Appeal No. CA/L/551/2006, on 19th March, 2009 and dismissed it for lacking in merits; hence an appeal to the Supreme Court.

ISSUES:
The Court determined the appeal on the issues raised by the parties as follows:
1. Whether the Court of Appeal misdirected itself and came to a wrong decision in sustaining the Respondent's Preliminary Objection to the Appellant's Appeal on the ground that the Appellant did not Appeal against the Federal High Court's Ruling of the 20th December, 2005.
2. Whether the Court of Appeal erred in law in holding that proceedings which were a nullity could not, unless Appealed against, be set aside by the lower Court and in failing to declare as a nullity the Respondents' motion dated the 12th April, 2005 and filed before the Writ of Summons was served on the Respondents, together with the ensuing proceedings before the Federal High Court.
3. Whether the Court of Appeal erred in law in failing to enter judgment in favour of the Appellant when it was patently clear that the Respondent had no intention of entering an appearance to the suit or filing  a defence thereto. 
4. Whether the Court of Appeal embarked on an irrelevant consideration of the law relating to service of a Writ of Summons in admiralty proceedings.

DECISION/HELD:
On the whole, the Court found no merit in the appeal and accordingly dismissed same.


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