WHAT HAPPENS IF A WRIT IS SERVED OUTSIDE JURISDICTION WITHOUT FIRST OBTAINING THE REQUISITE LEAVE OF COURT?

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CASE TITLE: NNPC V. NWODO & ORS (2018) LPELR-45872(CA)

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT BY: TOM SHUAIBU YAKUBU, J.C.A.

FACTS OF THE CASE:

This is an appeal against the decision of the National Industrial Court, Holden at Lagos, delivered on 24 July, 2013. The respondents, being retired staff of the appellant, had on 23 October, 2012, filed an action against the latter, in a representative capacity, wherein they claimed that as retired staff of the appellant, who had retired from the services of the appellant, before 31 December, 2004, they were entitled to a harmonization of their pensions. This, according to the respondents, was by virtue of Section 173(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, Circulars from the Presidency, The office of the Head of Service of the Federation and Clause 43 of the NNPC Corporate Policy and Procedure Guidelines.

The respondents’ action was filed at the National Industrial Court, in Lagos whereas the appellant was served with the originating processes at the Nigerian National Petroleum Corporation (NNPC) Headquarters, Central Business District, Herbert Macaulay Way, Abuja. The appellant upon receipt of the said processes, filed a Conditional appearance on 21 December, 2012. The appellant contemporaneously filed a Motion on Notice on the same date and prayed the Court to dismiss the respondents’ action for want of the Court’s jurisdiction on the grounds that:

1. This suit was statute-barred.

2. The complaint was issued, filed and served out of jurisdiction without the leave of Court as required by Sections 96, 97, 98 and 99 of the Sheriffs and Civil Process Act Cap 407, Laws of the Federal Republic of Nigeria, 2004.

3. The order for mandamus as contained in paragraphs 2(b) and 20(e), being an application for judicial review was not brought within three months of the date of occurrence of the subject matter of this application as required by Order 22 Rule 3(1) of the National Industrial Court Rules 2007 and therefore statute barred.

4. This suit was an abuse of Court process as it sought to re-litigate issues raised in Suit No. NICN/LA/343/2012 struck out on 15th October, 2012 instead of being dismissed because issues had been joined in the said suit before the Claimant filed a NOTICE OF DISCONTINUANCE.

The appellant in support of the motion on notice for the dismissal of the suit, filed an affidavit and a written address. In opposing the application for the dismissal of their suit, the respondents filed a counter affidavit and a written address. The learned trial judge, in his ruling dismissed the appellant’s application.

Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the issues raised by the Appellant and couched as follows:

1. Whether the lower Court had jurisdiction to entertain the complaint and all the Court processes in this case, the Respondents having failed to comply with the mandatory provision of the Sheriff and Civil Process Act.

2. Whether Respondents suit is statute barred in the light of the provisions of the Nigeria National Petroleum Corporation Act, Cap 123 LFR 2004.

DECISION/HELD:

On the whole, the Court of Appeal found merit in the appeal and accordingly allowed same. The ruling of J. T. Agbadu Fishim.J rendered in re suit no. NICN/538/2012 on 24 July, 2013, was thereby set aside. The respondents’ claim was ordered as having been struck out.

RATIO DECIDENDI:

  • PRACTICE AND PROCEDURE – ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES) - Whether leave of the Court is required before issuance of a writ of summons to be served out of jurisdiction; effect of not seeking leave of Court
  • LIMITATION LAW – LIMITATION OF ACTION - Whether the law on limitation of action applies to cases of continuous damage/injury
  • PRACTICE AND PROCEDURE – ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES) - Whether leave of the Court is required before issuance of a writ of summons to be served out of jurisdiction; effect of not seeking leave of Court

lawpavilion • November 23, 2018


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