Nigeria: The Decision In Nigeria Maritime Administration & Safety Agency & Anor v Noble Drilling Nigeria Limited - From Precedent To Precedent?

Introduction

The underlying dispute between the parties in the unreported decision of the Court of Appeal in Nigeria Maritime Administration & Safety Agency &Anor v Noble Drilling Nigeria Limited¹ appears graver than the procedural issue on which the resolution at the intermediate appellate court ultimately rested.

It concerned a matter of a fairly considerable commercial substance/significant consequence to the Nigerian maritime, oil & gas sectors: that is, the vexed question of the applicability (or, otherwise) of the provisions of the Coastal and Inland Shipping (Cabotage) Act, Cap. C51, Laws of the Federation of Nigeria, 2004 (herein; 'the Cabotage Act') to every commercial activity on, in or under Nigerian territorial waters.

The Federal High Court had rendered a decision of significant consequence on the enactment. But as is increasingly the case with highly significant disputes, the judicial determination was far from being settled, at first instance.

Upon an upward climb of the rungs of the judicial ladder to the Court of Appeal, the ghost of the Supreme Court's decision in Owners of the MV "Arabella" vs. Nigerian Agricultural Insurance Corporation² resurfaced on a 'defect' as to the service of the originating process at the lower court. The ensuing question, 'to hold true to the binding force of precedent, or not?'did not avail itself to an easy answer. Or, so it seems. At this stage it is apposite to examine the facts of the case.

Facts of the Case

The dispute (at the lower court) centered around the interpretation that should/ought to be accorded 'drilling operations' or 'drilling rigs' vis-à-vis the intendment and expressed intention of the Cabotage Act. Noble Drilling Nigeria Limited (variously referred to as 'the Plaintiff' 'Respondent' , or 'Noble') contended that its 'drilling rigs' were not 'vessels' within the definition of the Cabotage Act; and also that its drilling operations did not fall within the definition of'coastal trade' or 'cabotage trade' under the Act.

It, inter alia, sought a declaratory relief that the drillings rigs were not within the purview of the Act; and, a consequential injunctive relief to prevent the defendants from interfering with its drilling operations on grounds of non-compliance with the provisions of the Cabotage Act.

After an initial bout, albeit unsuccessful attempt, at impugning the mode of commencement of the action (that is, that the action was commenced by originating summons and not by writ of summons), the Federal High Court heard cross-arguments on the originating summons, and delivered judgment answering the posers raised in the negative: in sum, to the effect that drilling rigs and operations were not within the intendment of the Cabotage Act.

The defendants, being (i) Nigeria Maritime Administration & Safety Agency (NIMASA) and,(ii) the Minister of Transport ("Appellants") proceeded on appeal. At the Court of Appeal, the appellants sought and obtained the Court's permission to raise a fresh issue; the question being as to defect in the issuance of the originating summons for service outside jurisdiction. The appellants contended that the originating summons with which the matter was commenced at the Federal High Court fell short of the mandatory provisions of the Sheriffs and Civil Process Act and the rule of court requiring leave of the Court for service outside jurisdiction.

The Decision of the Court

In all, the (6) six issues formulated for determination in the Appellants' briefs were adopted for the determination/resolution of the appeal. The Court however decided the appeal on the first issue framed as: 'Should the learned trial Judge have declined jurisdiction to hear and entertain this suit when the conditions precedent to the exercise of that jurisdiction were not met by the Respondent?'

In essence, the issue addressed the alleged defect in the issuance of the originating summons from one judicial division of the Federal High Court, and consequent service of the same originating process in another division without complying with the applicable provisions of the Federal High Court (Civil Procedure) Rules and the Sheriffs and Civil Process Act, 2004.

Upon a review of the cross-arguments canvassed as to the alleged defect in the originating summons, the Court of Appeal held that the originating summons with which the matter was initiated at the Federal High Court was not properly issued and served as it fell short of the stipulations of the provisions of Order 7 rule 7(i) of the Federal High Court (Civil Procedure) Rules 2000 (the Rules applicable when the suit was filed) and sections 96, 97, 98 and 99 of the Sheriffs and Civil Process Act. Holding that it was bound by the decision of the Supreme Court in Owners of the MV "Arabella" vs. Nigerian Agricultural Insurance Corporation³ on the point, the Court set aside the judgment of the lower court as a nullity, and consequently struck out the suit.

Legal Commentary/Review of Judgment

The amplitude of the Court of Appeal's decision rested on ensuring certainty and in not disturbing a settled pointof law from an earlier decision of the apex court. The Latin maxim is fully stated as stare decisis et non quieta movere. It means- to stand by what has been decided and not to unsettle things already established.

As a starting point, it is imperative to restate the settled principle of law that what really imbues landmark decisions (or, locus classicus) with authoritative guidance is the ratio decidendi emanating from such decisions and this will continue to have force and application to similar or identical decisions coming up for adjudication in the future, whilst also binding on all lower courts in the hierarchy of courts in the country.⁴ It is equally well-worn that the enunciation or application of legal principles is often guided by specific peculiarities of each case. Arguably, adherence to precedence by the lower courts admits of exception where the facts of a future case are dissimilar from the precedent sought to be applied.

The immediate question thus, is: do the facts in NIMASA v Noble avail a differing/distinguishing pathway from – or, do they channel the same course as - that adjudicated upon in the oft-cited case of MV Arabella v Nigerian Agricultural Insurance Corporation?

It helps at this juncture to examine the facts of MV Arabella.

The case arose out of the following circumstances. The plaintiff/appellant initiated an action against the 1st-3rd defendants at the Federal High Court, Lagos. Service of the writ was however effected on the defendants at Abuja. The ensuing objection raised by the 2nd defendant/respondent challenged the validity of the service of writ in Abuja without the permission of the trial court, being sought and obtained by the plaintiff. Reliance was placed on the applicable provisions of the Federal High Court Rules. It was further contended that the writ was not endorsed as required by the Sheriffs and Civil Process Act.

The plaintiff/appellant contended differently. Inter alia, that Sections 19(1) of the Federal High Court Act and 228 of the Constitution of the Federal Republic of Nigeria, 1979 envisaged a single/national geographic jurisdiction of the Federal High Court. Fortified by the foregoing proposition, it strenuously argued that leave to issue and serve a writ out of jurisdiction would not apply where service was effected at Abuja, within the same single (or selfsame) jurisdiction of the Federal High Court. The trial court held that service outside the territorial jurisdiction of the Federal High Court, sitting in Lagos required compliance with the provisions of the statute and the rules of court under reference. The substantive matter was dismissed!

On appeal, the Court of Appeal affirmed the position but substituted the order of dismissal for that striking out the suit. A further appeal to the Supreme Court did not help matters. The apex court was emphatic that the arguments of a national geographic jurisdiction of the Federal High Court will not avail, or obviate the need for a mandatory compliance with the law as regards issuance and service of the writ of summons outside Lagos. Put simply, Abuja was declared to be 'out of jurisdiction' of the territorial jurisdiction of the Federal High Court sitting in Lagos.

Much ink has been spilled in critique of the judgment as, among other things, losing sight of the provision of the Federal High Court Rules which in recognition of a single geographical jurisdiction declares that 'out of jurisdiction' 'means out of the Federal Republic of Nigeria'.⁵The lettering and intendment of the applicable provision of the establishment statute further lends credence to this when it provides that 'the Court shall exercise jurisdiction throughout the Federation'.⁶ It thus pushes the stretch of interpretation beyond its limits to suggest that the provision of the Sheriffs and Civil Process Act on endorsement for service outside jurisdiction, will include writ (and other originating processes) issued within the 'territorial/physical jurisdiction' of say Lagos division of the Federal High Court for service in Port Harcourt, Abuja or indeed any other constituent part(s) of the selfsame federation. But, we shall return to the critique later. Suffice it to say for the present, the decision in MV Arabella continues to be a binding precedent.

Back to the narrative of the facts in the NIMASA v Noble's case, a critical appraisal of the facts and circumstances would reveal that the parallels with the factual bases in MV Arabella cannot be easily drawn. Put simply, a case for distinguishing the applicability of the holding in MV Arabella from the instant case can be made, without embarking on an exercise in futility or an attempt to avoid being bound by precedent⁷. What are the legal distinguishing factors?

'Improper service on one, of the Appellants'

In the course of reviewing the submissions of respective counsel, the Court noted that the respondent, inter alia, argued, that the defect as to improper service even if conceded would not affect the other defendant who was served within jurisdiction. Page 13 of the body of the judgment reads in part:

'Counsel submitted that even assuming without conceding that the issue or service of the originating summons on the 2nd Appellant was not proper in any manner, this cannot detract from the valid service of the process on the 1st Appellant and the court is entitled to assume jurisdiction over it.'

It appears this might have been borne out of the printed records of appeal/proceedings before the court; that NIMASA was properly served within jurisdiction (Lagos) even as the Minister of Transport was served in Abuja. Oddly enough, the Court did not appear to given this submission much consideration as there was no further reference to it combing through the length and breadth of the whole judgment! The Court did not appear to have considered the fresh dimension this factual argument, if it was correct in the circumstance, would have on the final orders made when it proceeded to set aside the whole judgment of the lower court as a nullity. This argument has a few implications.

The resultant effect would have been to set aside service against the complaining party and not nullify the entire proceedings before the court. The entire jurisdiction of the court is not impugned merely because one of the defendants before the court was not properly served. The consequential order that will follow defective service outside jurisdiction will not affect an instance where the other defendant to the suit was properly and validly within jurisdiction. In MV Arabella even as the complaining party was only one of the three defendants before the Federal High Court, it was not in dispute that all three defendants were served outside jurisdiction, without the leave of court sought and obtained. In the present circumstance, it will hardly be a satisfactory state of affairs to nullify or set aside proceedings properly instituted and conducted against party properly served within jurisdiction.

Waiver of right to complain

Curiously, the complaint of the appellants that failure of the respondent to seek and obtain the leave of the lower court to issue the originating summons on the 2nd appellant outside the jurisdiction of the Federal High Court violated the whole proceedings in the suit was only raised for the first time at the Court of Appeal. In the course of the leading judgment of Iyizoba JCA, the Court recorded (ibidem at p.13) that the learned counsel to the respondent argued that the issue of defect in service was never raised at the lower court and that the appellants having actively participated in the suit until judgment, were estopped from raising the issue as to improper service on the 2nd appellant at the Court of Appeal. Earlier in the judgment, the appellants were recorded to have submitted that:

'issues of a court's incompetency and want of jurisdiction can be raised at any stage of the procedings and even on appeal' and that 'an incompetent process remains without legal value no matter how long it took to raise the matter'.

Two quick points must be made here. The first is that it is an accurate statement of the law to posit that jurisdiction is a threshold issue and a party can raise it at any stage of proceedings even on appeal to the Supreme Court. But again, the circuit of 'jurisdiction' is elastic, oft-bandied, and as is increasingly the case, subject to doubtful analysis and applications. The qualification is that the preferential treatment a threshold issue gets at any stage of the proceedings is not enough to nullify processes and proceedings.

Differently put, it is a jurisdictional point to complain of defect as to service (which by the way is not exactly the same thing as 'lack of service'). Proper service (in this case, endorsement for service outside jurisdiction and permission of court sought and obtained) is a right conferred upon parties by statute. The courts have however held that the right is for the sole benefit of the complaining party, and the State has no interest in it. Put simply, where the object of a statute is not one of general or public policy, but will only benefit private individuals or particular persons, the provisions of the statute are directory and not mandatory.⁸ To this extent, it can be waived when not promptly raised. The party seeking a nullification of court processes and proceedings on ground of defect as to form and manner of service contemplated under the Act and or the Rules of Court must not be guilty of any waiving conduct which will operate as an ameliorating factor.

Interestingly, there has been a vast body of case law on this sort of belated complaint as to non-compliance with the mandatory provisions of the Sheriffs and Civil Process Act and the rule of court requiring leave of the Court for service outside jurisdiction⁹. At some point the decisions were even thought to conflict, inter alia, as to whether the provision can be waived by the complaining party. The very same Supreme Court has reviewed the positions and rightly came to the conclusion that there is no conflict as to the 'positions' taken on the effect of a procedural irregularity that has/might have been waived at the instance of the party who could have raised the point timeously.

Applying the position of the law to the facts of NIMASA v Noble, it will undoubtedly amount to waiver of the right to complain after participating in arguments on originating summons up to judgment, only to raise a 'jurisdictional point' for the first time at the Court of Appeal. Justice Ogundare (JSC; now of blessed memory) who gave the leading judgment in Odu'a Investment Company Limited v Talabi held ex-cathedra at page 52 :

'From all I have been saying, my answer to the question set out in this judgment, therefore, is that non-compliance with section 97 and/or section 99 of the Sheriffs and Civil Process Act and the rule of court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is ex debito justitiae entitled to have same set aside as was done in Skenconsult , Nwabueze and NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of.'

We may also find guidance in the instructive and incisive holding of the Supreme Court in Ndayako v Santoro¹⁰ to the effect that:

"It is noteworthy that a distinction must be drawn between two types of jurisdiction viz jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the court where the Constitution or a statute or any or any provision of the common law says that the court shall have no jurisdiction. A litigant may submit to procedural jurisdiction of the court e.g where a writ has been served outside jurisdiction without leave."(Emphasis Supplied).

It suffices to say that the example of a waiving conduct to a defective service reinforces the point.

From the foregoing analysis, it is indubitable that the factual bases in the two cases (on the one hand, MV Arabella; and, on the other-NIMASA v Noble) are significantly different. In these circumstances, it is doubtful if the decision in MV Arabella should have offered authoritative guidance to Court in NIMASA v Noble. Broadly speaking, it is rather unfortunate that adherence to the 'rule in MV Arabella' has, for the moment, impeded the exposition of the law as regards the more substantive issue of ascertaining the intendment of the Cabotage Law with regards to the factual dispute before the court.

Conclusion:

MV Arabella, to the rescue?

All said, we must not end without a call on the hallowed chambers of the apex court to revisit its decision in MV Arabella. With due respect to the Learned Justices who sat in that case, the decision might just have been wrongly decided.

In his contributory judgment, Akintan JSC pointedly stated thus:

"The Sheriffs and Civil Process Act (Cap 470, Laws of the Federation of Nigeria,(1990), 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 in 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 in inapplicable to the Federal High Court because the jurisdiction of that court covers the entire nation."¹¹

This commentator is of the opinion that whilst it is good law that in so far as services of processes outside jurisdiction are concerned, the Sheriffs & Civil Process Act is the applicable legislation, it, nevertheless, appears to be stretching interpretation beyond its limits to suggest that (i) the Federal High Court is within the contemplation of the Sheriffs & Civil Process Act for inter-state service of originating processes; and or (ii) that 'out of jurisdiction' of the Federal High Court for the purpose of obtaining leave to issue and serve originating processes is affected by its 'inter-state' jurisdiction. To be sure, the Sheriffs & Civil Process Act relates to service on a defendant outside jurisdiction of the State High Court or the Magistrate Court but within the Nigerian Federation. It recognizes the need for originating processes to comply with the stipulations of the Act in order to effect service outside the State (but within the constituent part(s) of Nigeria) the action has been brought. The Federal High Court is however covering just 'one jurisdiction' (that is, the entire federation) and is always 'within jurisdiction' wherever a process is taken out in any of its judicial divisions.

As has been repeatedly argued in the cases, the effect of the Latin maxim expressum facit cessare tactitum (that which is expressed puts an end to that which is silent) comes into reckoning here. This is aptly captured by the ingenious submissions (of the appellant's counsel, at pages 10-11 of the judgment in NIMASA v Noble's) to the effect that:

'.....the Act first made its appearance in our statute books in 1945 and then was later found in the 1958 compilation of the laws of the Federation. By the time of the compilation of the Laws of the Federation in 1990, the Federal High Court had been established in 1973 while the High Court of the Federal Capital Territory, Abuja came into being in 1975. Learned counsel argued that upon the compilation of the Laws of the Federation of Nigeria 1990, the legislature saw it necessary to include the High Court of the Federal Capital Territory Abuja in the definition of High Court of the Federal Capital Territory Abuja in the definition of High Court in the Sheriffs and Civil Process Act but did not include the Federal High Court, even though the Federal High Court came into being in 1973 before the High Court of the Federal Capital Territory.'

It may, however, be argued that there is considerable force and clarity of thought in the reasoning that the provisions of the said section 97 of the Sheriffs & Civil Process Act are applicable in all High courts, including those not expressly mentioned such as the Federal High Court since the Federal High Court is of a coordinate status with the High Court. Even if this (latter) argument were to be preferred, the law, or put more appropriately, its varied/differing applications is still in a state of flux. An instance will suffice.

The National Industrial Court (NIC) is equally a superior court of record with co-ordinate status with the Federal High Court and the High Court. If the analogy in MV Arabella is stretched within permissible limits, it is fair to say that it is a court that is bound by the provisions of the Act. Much like the Federal High Court, the coverage of the NIC's jurisdiction is nationwide, and it is also divided into divisions. However, for the same argument that was rejected in MV Arabella, the National Industrial Court has 'departed' and consistently maintained that given the national geographic jurisdiction of the court, the National Industrial Court is not contemplated under the Sheriffs and Civil Process Act 2004 for the purposes of the requirements of especially Section 97 thereof. It is only appropriate to cite a few of its decisions. In Suit NIC/LA/157/2011 Francis Oluyemi Olamiju Esq. v. Local Government State Commission, Ekiti State &anor¹² Kanyip J. gave a most profound and lucid analysis of the rationale for the inapplicability of the Sheriffs& Civil Process Act at the National Industrial Court. In a well- argued passage of his ruling, the Law Lord held:

"A look at the Sheriffs and Civil Process Act reveals that section 97 comes under part VII of the Act. In that part the word 'Court' is defined to mean a court to which parts III, IV, V, and VI applies. Only in part III is the word Court defined to include the High court of the Federal Capital Territory Abuja or of the States and Judge is defined to mean judge of the high court. Part II of the Act, however defines "Court" to include High Court and a magistrate court. What I can deduce from these definitions is that the courts contemplated for the application of the Sheriffs and Civil Process Act is specifically provided for. For instance, only Part II is magistrate court contemplated. In other parts, it is not so mentioned. The argument of the defendants counsel that the word "includes" used in the definitions must be read as not being exhaustive or even exclusive seems to, therefore, gloss over why a court like the magistrate court is mentioned in part II and not in other parts. The answer of counsel here that section 97 covers all courts of co-ordinate jurisdiction such as the National industrial Court also does not answer the question whether the Sharia Courts of Appeal or Customary Courts of Appeal, all courts of co-ordinate status and power with High Court (are also covered). In fact, it does not answer the question whether the Court of Appeal and the Supreme Court, when acting under their original jurisdiction, are bound by section 97 of the Sheriffs and Civil Process Act. My take on all this is that not all courts are covered by section 97 of the Sheriffs and Civil Process Act; and I so find and hold. Since this is the case, I hold that this court is not covered in terms of the application of the said section 97."

This decision has been 'followed' in a string of judicial decisions from the National Industrial Court 13 where similar attempts to invoke the provisions of the Sheriffs and Civil process Act , have met with the same fate, with the said provisions held not to apply to originating processes emanating from the National Industrial Court have been raised. See also Ikeegbulam v Association of Senior Civil Servants of Nigeria¹⁴; and the unreported decisions of the National Industrial Court in Suit No: NICN/CA/75/2012 Bright Chinedu Wodi v. Differential Aluminum and Steel Company Ltd &ors (ruling delivered: 2014-01-21; perKanyip J.); Suit No: NICN/PHC/60/2014 Mr. Ohaka Umesi David v. Mr. Kola T. Adefila&Ors (Judgment delivered: 2014-02-06; per Anuwe J.). It only remains to add that this position of the National Industrial Court on the point, may well be 'final word' in those cases, given the fact that not all the decisions of the National Industrial Court can, as at present date, be made a subject of appeal.

Where do all these leave us? From one precedent to (another) precedent? A state of flux?

As a final court whose decisions are authoritative guidance to the courts below, the Supreme Court has a duty, in the now famous words/injunction of Lord Denning to:

'...lay down or should lay down, the fundamental principles of law to govern the people; and, whilst adhering firmly to those principles, it should overturn particular precedents that it finds to be at variance therewith. Then shall we be able to claim that "freedom broadens slowly down from precedent to precedent'.¹⁵

It is hoped that the Supreme Court, when the opportunity presents itself again, will reverse itself and steer the course of loyalty to the binding force of precedents in this area to a safe harbour.

Footnotes

1 Unreported decision of the Court of Appeal in appeal with docket details Suit No: CA/L/864/2009; Nigeria Maritime Administration & Safety Agency &Anor v Noble Drilling Nigeria Limited. Judgment delivered on the 5th day of December, 2013

2 (2008) 11 N.W.L.R (PT. 1097) 182

3 (2008) 11 N.W.L.R (PT. 1097) 182

4 Fawehinmi v. N.B.A. &Ors (No. 2) (1989) 2 N.W.L.R. (Pt. 105) 558 at 650

5 Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules 2009

6 Section 19 of the Federal High Court Act, Laws of the Federation 2004, CAP. F12

7 Mandara v. A.G Federation (1984) 15 N.S.C.C 221 at 243

8 Ariori v Elemo (1983) 1 SCNLR 1

9 See, for example, Adegoke Motors v Adesanya(1989) 3 NWLR (Pt 109) 250; Odu'a Investment Company Limited v Talabi(1997) 10 NWLR (Pt. 523) 1

10 (2004) 13 NWLR (PT. 889) 187 at 219 per Edozie JSC,

11 Pp.220-221 of the Report

12 Ruling was delivered on 5th March, 2012.

14 (2011) 23 NLLR (Pt. 65) Pg 263.

15 From his lecture titled "From Precedent to Precedent" which he delivered on 21st May, 1959-parts of which are set out in his book 'The Discipline of Law'-pages 291-292

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