(2018) LPELR-45116(CA)

Transcription

1 NIGERIA AGIP OIL CO. LTD v. OJIAKO & ANOR CITATION: In the Court of Appeal In the Owerri Judicial Division Holden at Owerri ON THURSDAY, 19TH APRIL, 2018 Suit No: CA/OW/250/2012 Before Their Lordships: MASSOUD ABDULRAHMAN OREDOLA ITA GEORGE MBABA TUNDE OYEBANJI AWOTOYE NIGERIA AGIP OIL CO. LTD Between And 1. MR. EMMANUEL OJIAKO 2. ANAYO OJIAKO (For themselves and as representing Members of Umunsofor Aragbu family, Umunsoha Village, Oguta LGA of Imo State) suing through their Attorney, Ikesco Contracting Co. Nig. Ltd) Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. ACTION - WRIT OF SUMMONS: The position of the law where a writ is not properly endorsed "The real grouse of the appellant on this issue is that the writ of summons served on it was not endorsed as required by Section 97 of the Sheriffs and Civil Process Act. The contention of the defendant at the lower Court was that the writ of summons served on it was not endorsed in line with Sheriffs and Civil Process Act. Paragraph 4(C) of the affidavit sworn to on its behalf by Israel Aseminaso reads thus: "The writ of summons initiating this issue was issued in Owerri, Imo State for service on the Defendant in Port Harcourt, Rivers State. No leave of this Court was obtained before the writ was issued and served and no endorsement that the writ was to be served on the Defendant outside jurisdiction was made on the writ before service of it." It is settled law that where a writ is being contended not to have been properly endorsed as required by Section 97 of the Sheriffs and Civil Process Act such a writ should be properly tendered and made an exhibit in the case: See ADEGOKE MOTORS LD V ADESANYA & ANOR (1989) 3 NWLR (PT. 109) P In B.B.N LTD V S. OLAYIWOLA & SONS LTD (2005) 3 NWLR (PT. 912) 434 at 453, the Supreme Court further held that the failure to make prescribed endorsement on a writ of summons for service out of a State and in another State is a procedural irregularity which was a matter of fact and not law. See also CHRISTABEN GROUP LTD & ANOR V ONI (2008) 11 NWLR PART 1099 P. 84. From the record of appeal, it was not in doubt that the lower Court made necessary orders as required under Sheriffs and Civil Process Act for the writ to be served on the defendant outside Imo State. The finding of the lower Court on this has not been challenged in this appeal. Such a finding which has not been challenged is unassailable. See ABUBAKAR V BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS (2007) LPELR - 55, ALAKIJA V ABDULAI (1998) 6 NWLR (PT 552) 1, NWAOGU V ATUMA (2013) 11 NWLR (PT. 1364) 117. Such finding is binding on the parties. So what was served on the defendant? An endorsed writ of summons or an unendorsed writ of summons? It is a fact within the knowledge of the defendant. The burden of proving same was on it. See Section 140 of the Evidence Act, It should have proved same by producing the copy that was served upon it. Its His averment in paragraph (4c) of the affidavit sworn to by Israel Aseminaso creates an impression of denial that no leave of Court was obtained and no requisite endorsement was made. It is clear that this is not true. Order to the effect were made by the lower Court. If the orders were not complied with in the sense that the copies of the Court processes served on the defendant were not so endorsed, it was its duty to exhibit the unendorsed copies. See ADEGOKE MOTORS (supra). To hold that the averment in paragraph (4c) of its affidavit was uncontroverted and therefore deemed admitted would be unfair since it was not shown to be within the knowledge of the plaintiff that the Court process was not so endorsed."per AWOTOYE, J.C.A. (Pp , Paras. B-F) - read in context

3 2. JURISDICTION - JURISDICTION OF THE FEDERAL HIGH COURT: Exclusive jurisdiction of the Federal High Court to determine civil matters pertaining to mines and minerals "I have gone through the paragraph of the statement of claim of the plaintiffs. I respectfully disagree with learned appellants counsel on his submission that the lower Court lacked jurisdiction in this matter. Paragraph 2, 6 and 7 of the statement of claim showed glaringly that the cause of the grievance of the claimants was the construction of the defendant at Akri South - 1 Access Road Paragraph 2 showed that the defendant was a company engaged in the prospecting, exploration and exploitation of oil in all her oil fields. Definitely, the access road was in connection with the oil field and location. The ambit of Section 7 of the Federal High Court Act was expanded under Federal High Court Act 2005 to include ancillary matters. This in my respectful view include matters not directly connected to the subject matter (i.e. subordinate matters) Section 7 (1)(n) and 7(3) of the Federal High Court Act No 29 of 2005 is very pertinent on this. It provides thus: "The Court shall to the exclusion of any other Court have original jurisdiction to try civil cause and matters. (n) mines and minerals (including oil fields oil mining, geological surveys and natural gas, (3) Where jurisdiction is conferred upon the Court under Subsections (1) (2) and 3 of this Section, such jurisdiction shall be construed to include jurisdiction to hear and determine all issues relating to and arising from or ancillary to such subject matter." To my mind, the claim of the plaintiffs at the lower Court fall within the jurisdiction of the lower Court in the light of the above provisions. See NIGERIA AGIP OIL LTD v OGINI & ORS (2017) LPELR "Per AWOTOYE, J.C.A. (Pp , Paras. E-A) - read in context

4 3. JURISDICTION - JURISDICTION OF THE FEDERAL HIGH COURT: Exclusive jurisdiction of the Federal High Court to determine civil matters pertaining to mines and minerals "On the issue of whether the lower Court lacks the jurisdiction to entertain the respondents' suit. I have also given due consideration to all the averments contained in the respondents' statement of claim, particularly paragraph 6 of the said statement of claim, and I am of the firm viewpoint that the subject matter of the case is properly and squarely within the jurisdiction of the lower Court. It is not in doubt or dispute of any kind, that the appellant is an oil company, which carries out the said business within the respondents' community, that is, "Akri/Oguta Oil Field". See paragraph 2 of the respondents' statement of claim at page 4 of the record of appeal. In the instant case, the respondents further pleaded in paragraph 6 of the statement of claim, that the appellant constructed its Akri South - 1 Access Road. And this construction caused and still causing the blockage of the free flow of water along UTU-AKWA Creek". I am of the firm viewpoint that the construction of the access road mentioned by the respondents, as per the state of their pleadings, was to allow the appellant gain access to its oil field at Akri/Oguta Oil Field. On the state of the pleadings, the construction of the road was represented to be related to the appellant's oil exploration and exploitation business, thus, the construction of the road can be regarded and rightly too, as "relating to, arising from or ancillary to the appellant's oil prospecting/mining operations. And the subject matter of this action falls within the jurisdiction of the lower Court. Sec Section 7 (1)(n) and 7(3) of the Federal High Court Act, For purpose of clarity and/or emphasis, let me quickly touch upon the meaning of "ancillary". The word ancillary was defined by the Oxford Advancer's Learner's Dictionary (International Student's Edition), 7th Edition, at page 48 to mean: 1. Providing necessary support to the main work or activities of an organization." "2. In addition to something else but not as important." It is a trite principle of judicial interpretation of statutes, that if the word of a statute are plain and unambiguous, the only duty required of the Court is to interpret the words of the statute and to give it, its ordinary and plain or natural grammatical meaning. See the cases of Eleburuike v Tawa (2010) LPELR and Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116. In the instant case, the words of Section 7(3) of the Federal High Court Act, 2004 is plain and unambiguous, and the necessary implication of the provision with regard to the ancillary subject matter in respect of items the Federal High Court is vested with powers to exercise exclusive jurisdiction over, covers all acts and/or omissions which is subordinate and aids the execution of the matters specified in Section 7(1) of the Act which are squarely/equally within the exclusive jurisdiction of the Federal High Court. In the instant case, at the risk of repeating myself (but for emphasis), I also do agree with the learned trial judge, that from the state of the respondents' pleadings, the construction of the access road complained of was ancillary to the appellants' mining operation."per OREDOLA, J.C.A. (Pp , Paras. C-A) - read in context

5 4. PRACTICE AND PROCEDURE - ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES): Whether Sections 95, 96 and 97 of the Sheriffs and Civil Process Act applies to proceedings in the Federal High Court "As for the applicability of Section 97 of Sheriffs and Civil Process Act to the Federal High Court. I am of the respectful view that the Supreme Court case of M.V ARABELLA V N. A. I. C (2008) 11 NWLR (PT. 1097) 182 so far, it has not been overruled or upturned and the previous earliest decision of this Court applying and following ARABELLA's case (supra) are binding on this Court. See ROSEK & ORS. V ACB LTD (1993) 8 NWLR (PART 312) 382, YOUNG V BRISTOL AEROPLANE CO. (1944) K.B., 718 WARI & ORS V MOBIL INC. OF AMERICA & ANOR (2013) LPELR There is need to be reminded that the Federal High Court Rules 2009 remains a subsidiary or secondary legislation which cannot override a primary legislation -Sheriffs and Civil Process Act. The interpretation of the Supreme Court is that S.97 of the Act applies to the Federal High Court. Until Supreme Court departs from this interpretation it remains binding on all lower Courts. I am of the respectful view that the provision of Section 97 of the Sheriff and Civil Process Act is applicable to the Federal High Court."Per AWOTOYE, J.C.A. (Pp , Paras. F-E) - read in context 5. PRACTICE AND PROCEDURE - RECORD OF COURT PROCEEDINGS: Whether Court, parties and counsel are bound by the record of proceedings "It is well settled that parties and Courts are bound by the record of proceedings of the Court. And a Court is entitled to look through its record to ascertain and/or confirm the position of things in order to ensure, that it is not misled and/or justice of the case is misplaced. See the cases of Texaco Panama Incorporation v. Shell Petroleum Development Corporation of Nig. Ltd. (2002) 2 SCNJ 102 and Independent National Electoral Commission, Anambra State & Anor. V. Okonkwo (2008) LPELR "Per OREDOLA, J.C.A. (Pp , Paras. E-A) - read in context 6. PRACTICE AND PROCEDURE - ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES): Whether power to endorse leave for issuance and service outside jurisdiction rests exclusively in the trial Court "It is pertinent to point out herein, that the duty to issue writ of summons is that of the Court where the suit is intended to be heard, and not that of the plaintiff. Thus, where a plaintiff/claimant (as the case may be) has duly performed or carried out all what is required of him by the law or relevant procedural rules of the Court, the negligence and/or failure to properly endorse the writ will be that of the Court's registry. It will be greatly unfair and occasion gross injustice to visit the sin of the Court's registry on the innocent litigant. See the cases of G. Cappa Plc v. Nnaegbuna & Sons Ltd. & Anor. (2009) LPELR and Registered Incorporated Trustees Total Cooperative Thrift & Credit Society & Anor. v. Mazi Obi Adindu (2011) LPELR Applying the above settled principle of the law to the instant case, if in any event (which the appellant has failed to prove) that the writ served on the appellant was not endorsed as required by Section 97 of the Sheriff and Civil Process Act, then the fault will be regarded as that of the lower Court's registry, and the supposed defect can not be used as a tool to truncate, stultify defeat and/or bring about the striking out of the respondent's writ of summons."per OREDOLA, J.C.A. (Pp , Paras. B- B) - read in context

6 7. PRACTICE AND PROCEDURE - ENDORSEMENT OF WRIT: Effect of failure to endorse a writ where same is required "the question that agitates the mind in the given circumstances and peculiar facts of this case is: What specific and/or substantial injustice or adversely negative effect will the non endorsement of the writ occasion to the appellant? I see none. To my mind, the requirement for the endorsement is mainly for the purpose of making assurance doubly sure, that the adverse party is aware of the pending case against it coupled with the giving of adequate and requisite notice to the other party towards its preparation for the defence of the case. It perforce add no single value to the determination of the case on its merit. What is more, the current Federal High Court (Civil Procedure) Rules, 2009, under which the instant action was brought has departed, deviated and/or derogated from this cumbersome, unnecessary and archaic procedural provision. In fact, by the provision of Order 6 Rule 31 of the said Rules, "out of jurisdiction" in respect of the Federal High Court was defined to mean, "out of the Federal Republic of Nigeria."Per OREDOLA, J.C.A. (Pp , Paras. B-A) - read in context

7 TUNDE OYEBANJI AWOTOYE, J.C.A (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the defendant in Suit No. FHC/OW/CS/156/2011 against the decision of Federal High Court, Owerri delivered on 19/01/2012. The claimants had filed an action against the defendant claiming as per paragraph 17 of the statement of claim as follows: WHEREFORE the claimants claim against the Defendant as follows: (a) The sum of Ten Million Naira (N10,000,000.00) being fair and adequate compensation for the continuous loss of fishing rights on UTU-AKWA Creek and adjoining ponds and creeks. (b) An Order directing the Defendant to comply with investigation Report No. JZ/6265/AKRI SOUTH -1/AR/WW/BLK/05/06/PAF/3913 as reflected in the aforesaid compensation receipt within dated 30/01/2007, 6 months of delivering of judgment. In reaction, after having been served with the writ of summons and necessary processes, the defendant challenged the competence of the claimants suit on three grounds; 1

8 1. The plaintiffs claim relates to an alleged injury suffered or is being suffered as a result of the alleged blockage of the free flow of water and fishes into the plaintiffs ponds and farmland allegedly caused by the reconstruction of an access road and burrow pit by the defendant. 2. The subject matter of the plaintiffs claim is outside the jurisdiction of the Federal High Court and is within the exclusive jurisdiction of the Imo State High Court. 3. No leave of court to issue the writ for service outside jurisdiction was obtained before the writ to be served in Rivers State was issued in Owerri (Imo State) Judicial Division of the Federal High Court Nor did the writ contain the mandatory endorsement required under Section 97 of the Sheriffs and Civil Process Act for a writ to be served outside jurisdiction. The writ of summons (as well as its service) is accordingly void. 2

9 After hearing the parties, the learned trial Judge gave a ruling in the following terms It is trite that issuing of civil process is the concern of the relevant High Court Law and Rules, while service of each process is preferable to the Law made for the service of process (See ADEGOKE MOTORS v. ADESANYA (1989) 3 NWLR (PT. 109) p. 270 PARAGRAPHS B TO C. i.e. the Sheriffs and Civil Process Act Cap S.6 LFN So, while under the Federal High Court (Civil Procedure) Rules 2009 leave is no longer required to issue and serve a writ outside the State where a particular division of the Federal HIGH Court is situated there is still a requirement by S. 97 of the Sheriffs and Civil Process Act (supra) that the Writ be endorsed. The Plaintiff erred on the side of surplusage when he prayed for an order granting leave to issue and serve the Writ outside Jurisdiction as used to be the practice under the old Rules of this Court. He also asked for an order that the Writ be appropriately endorsed for service. The Court made orders in that regard. As such it is presumed that what ought to have been done was done i.e. that the Writ which was 3

10 served on the Defendant/Applicant was indeed endorsed (since the Defendant/Applicant has not presented a Certified True Copy (C.T.C) of the Writ served upon it for the Court to ascertain that such an endorsement was not made) It is for these reasons that I resolve the 1st issue for determination in favour of the Plaintiffs/Respondents. The learned trial Judge also on the second ground held thus; It can be deduced from an examination of the statement of claim that the alleged blockade and obstruction being complained of by the Plaintiffs/Respondents is due to the fact that the Defendant/Applicant dug a burrow pit and constructed an access road to its oil well(s) in the Plaintiffs/Respondents Community. In other words, it was in order to facilitate its oil exploration and exploration activities that the access road and burrow pit which allegedly caused blockade, obstruction and damage to the Plaintiffs/Respondents fish ponds, creeks etc was constructed by the Defendant. It has been held that any unsavoury result actionable in 4

11 consequence of the activities of companies engaged in operations relating to prosecutions in oil, mines, minerals, gas exploitation and related geophysical works or activities come within the jurisdictional competence of this Court. See 1. SSPDC V. OTELEMABA MAXON & ORS (2001) 1 FWLR (PT. 47) p.1030 (Court of Appeal). 2. C.G.G. (NIG) LTD V. ASAGBARA (2000) FWLR (PT. 17) P. 110 (Court of Appeal). 3. BARRY V. ERIC (1998) 8 NWLR (PT. 562) P.404. The burrow pit and access road constructed by the Defendant/Applicant is a consequence of its oil prospecting and exploration activities in the Plaintiff/Respondents Community. I am therefore of the considered view that there is nothing in the Plaintiffs/Respondents claim which deprives this Court of the power to adjudicate and I accordingly resolve the Defendant/Applicant s issue 2 in favour of the Plaintiff/Respondent. 5

12 Miffed by the above decision, the defendant filed a Notice of Appeal challenging the decision on four grounds as follows: GROUNDS OF APPEAL 1. The learned trial Judge erred in law and wrongly assumed jurisdiction over the Plaintiffs case when: Particulars of Error (a) The Plaintiffs claim relates to an alleged injury suffered or is being suffered as a result of an alleged blockade of the free flow of water and fishes into the Plaintiffs ponds and farmland said to have been caused by the reconstruction of an access road and burrow pit by the Defendant. (b) The subject matter of the Plaintiffs claim does not arise from, relate to or connect with mines and minerals oil mining geological surveys and natural gas and is outside the jurisdiction of the Federal High Court. (c) Merely to aver that the defendant is oil producing Company will not give this Court jurisdiction over the Plaintiffs claims. 6

13 (d) The subject matter of the Plaintiffs claim is within the exclusive jurisdiction of the Imo State High Court. 2. The learned trial Judge erred in law in holding that the construction of the access road and burrow pit was embarked upon by the Defendant so as to facilitate easy access to its oil facilities when Particulars of Error (a) No pleading to that effect is contained in the Plaintiffs statement of claim. (b) Constructing a road and digging a burrow pit to facilitate access to Defendant s oil facilities will not on the state of the authorities bring the subject matter of the claim to one arising from related to or connected with mines, minerals etc. (c) None of the cases of CGG v Asagbara and SPDC v. Olelemaba Maxon relied on by the learned trial Judge is applicable to the facts of the Plaintiffs case. Rather it is the case of Nigerian Agip Oil Co. Ltd v Williams Kammer (cited to the learned trial judge) that is applicable. 7

14 3. The learned trial judge erred in law in holding that as Defendant did not exhibit to its motion the writ served on it, she could not make a finding that it did not contain the mandatory endorsement required by Section 97 of the Sheriffs and Civil Processes Act when Particulars of Error (a) In paragraph 4 (c) of the affidavit in support of its motion Defendant deposed that no endorsement that the writ was to be served on the Defendant outside jurisdiction was made on the writ before service of it. (b) Plaintiffs did not file a counter affidavit to challenge or rebut this deposition and are therefore deemed in law to have admitted it. (c) Having admitted that the writ served on the Defendant did not contain an endorsement that it was to be served outside Owerri Judicial Division, no further issue arose from it which Defendant is required to prove by exhibiting the writ served on it. What has been admitted needs no proof? (d) Failure to exhibit the writ to the motion did not on the admitted facts prevent the Court from holding that 8

15 it did not contain the mandatory endorsement required by Section 97 of the Sheriffs and Civil Process Act. 4. The learned trial Judge erred in law in refusing to set aside the service of the writ on the Defendant in Port Harcourt Rivers State, outside jurisdiction when Defendant has established by unchallenged evidence that the writ served on it did not contain the mandatory requirement of Section 97 of the Sheriffs and Civil Process Act. Particulars of Error (a) Particulars of ground 3 above are hereby repeated. (b) Failure to endorse the writ as required by Section 97 of the Sheriffs and Civil Process Act renders the writ liable to be set aside. After transmission of record of appeal to this Court, learned appellants counsel filed appellant s brief of argument on 23/9/2013. But it was deemed properly filed and served on 25/4/2017. The said brief was prepared by its counsel O. J. IRERHIME Esquire. 9

16 Learned appellants counsel formulated two issues for determination to wit: 1) Whether the plaintiffs claim which is founded on an alleged injury caused by Defendant in the course of the construction of a road is within the jurisdiction of the Federal High Court? 2) Whether the trial judge was right in failing to hold that the endorsement required by S.97 of the Sheriffs and Civil Process Act was not made? ISSUE ONE On this issue, learned counsel submitted that the averment in paragraphs 6-7 and 12 of the plaintiffs statement of claim showed that the plaintiffs complaint was that when the defendant constructed the Akri South 1 access road in 1984 it caused injury to the plaintiffs by obstructing the free flow of water and fishes into their farmland and flooding of their fish ponds. He argued that the cause of action as disclosed in the paragraphs did not disclose any cause or matter which related to, connected with or arises from mines and minerals (including at field oil mining, geological 10

17 surveys and natural gas) so as to ignite the jurisdiction of the lower Court under Section 251(1)(n) of the Constitution of the Federal Republic of Nigeria (as amended) or Section 7(1)(n) of the Federal High Court Act. He cited NIGERIAN AGIP OIL COMPANY LTD v WILLIAM KEMMER & ORS (2001) 8 NWLR (PT.716) 506 and other cases. He contended further that the alleged injury suffered by the plaintiffs did not touch on issue of compensation for pollution or damages resulting from mining operation. He urged the Court to resolve the issue in favour of the appellant. I have carefully considered the submissions of learned counsel. There is no Respondents brief in this appeal as the Respondents failed to file same as required by the Court of Appeal Rules. I have gone through the paragraph of the statement of claim of the plaintiffs. I respectfully disagree with learned appellants counsel on his submission that the lower Court lacked jurisdiction in this matter. Paragraph 2, 6 and 7 of the statement of claim showed glaringly that the cause of the grievance of the claimants was the construction of the defendant at Akri South 1 Access Road Paragraph 2 11

18 showed that the defendant was a company engaged in the prospecting, exploration and exploitation of oil in all her oil fields. Definitely, the access road was in connection with the oil field and location. The ambit of Section 7 of the Federal High Court Act was expanded under Federal High Court Act 2005 to include ancillary matters. This in my respectful view include matters not directly connected to the subject matter (i.e. subordinate matters) Section 7 (1)(n) and 7(3) of the Federal High Court Act No 29 of 2005 is very pertinent on this. It provides thus: The Court shall to the exclusion of any other Court have original jurisdiction to try civil cause and matters. (n) mines and minerals (including oil fields oil mining, geological surveys and natural gas, (3) Where jurisdiction is conferred upon the Court under Subsections (1) (2) and 3 of this Section, such jurisdiction shall be construed to include jurisdiction to hear and determine all issues relating to and arising from or ancillary to such subject matter. To my mind, the claim of the plaintiffs at the lower Court fall within the jurisdiction of the lower Court in the light 12

19 of the above provisions. See NIGERIA AGIP OIL LTD v OGINI & ORS (2017) LPELR In the circumstance, I resolve this issue against the appellant. ISSUE NO. TWO I have carefully gone through the submission of learned counsel on this issue. The real grouse of the appellant on this issue is that the writ of summons served on it was not endorsed as required by Section 97 of the Sheriffs and Civil Process Act. The contention of the defendant at the lower Court was that the writ of summons served on it was not endorsed in line with Sheriffs and Civil Process Act. Paragraph 4(C) of the affidavit sworn to on its behalf by Israel Aseminaso reads thus: The writ of summons initiating this issue was issued in Owerri, Imo State for service on the Defendant in Port Harcourt, Rivers State. No leave of this Court was obtained before the writ was issued and served and no endorsement that the writ was to be served on the Defendant outside jurisdiction was made on the writ before service of it. It is settled law that where a writ is being contended not to have been properly endorsed as required by Section 97 13

20 of the Sheriffs and Civil Process Act such a writ should be properly tendered and made an exhibit in the case: See ADEGOKE MOTORS LD V ADESANYA & ANOR (1989) 3 NWLR (PT. 109) P In B.B.N LTD V S. OLAYIWOLA & SONS LTD (2005) 3 NWLR (PT. 912) 434 at 453, the Supreme Court further held that the failure to make prescribed endorsement on a writ of summons for service out of a State and in another State is a procedural irregularity which was a matter of fact and not law. See also CHRISTABEN GROUP LTD & ANOR V ONI (2008) 11 NWLR PART 1099 P. 84. From the record of appeal, it was not in doubt that the lower Court made necessary orders as required under Sheriffs and Civil Process Act for the writ to be served on the defendant outside Imo State. The finding of the lower Court on this has not been challenged in this appeal. Such a finding which has not been challenged is unassailable. See ABUBAKAR V BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS (2007) LPELR 55, ALAKIJA V ABDULAI (1998) 6 NWLR (PT 552) 1, NWAOGU V ATUMA (2013) 11 NWLR (PT. 1364) 117. Such finding is binding on the parties. 14

21 So what was served on the defendant? An endorsed writ of summons or an unendorsed writ of summons? It is a fact within the knowledge of the defendant. The burden of proving same was on it. See Section 140 of the Evidence Act, It should have proved same by producing the copy that was served upon it. Its His averment in paragraph (4c) of the affidavit sworn to by Israel Aseminaso creates an impression of denial that no leave of Court was obtained and no requisite endorsement was made. It is clear that this is not true. Order to the effect were made by the lower Court. If the orders were not complied with in the sense that the copies of the Court processes served on the defendant were not so endorsed, it was its duty to exhibit the unendorsed copies. See ADEGOKE MOTORS (supra). To hold that the averment in paragraph (4c) of its affidavit was uncontroverted and therefore deemed admitted would be unfair since it was not shown to be within the knowledge of the plaintiff that the Court process was not so endorsed. As for the applicability of Section 97 of Sheriffs and Civil Process Act to the Federal High Court. I am of the respectful view that the Supreme Court case of M.V 15

22 ARABELLA V NAIC (2008) 11 NWLR (PT. 1097) 182 so far, it has not been overruled or upturned and the previous earliest decision of this Court applying and following ARABELLA s case (supra) are binding on this Court. See ROSSEK & ORS. V ACB LTD (1993) 8 NWLR (PART 312) 382, YOUNG V BRISTOL AEROPLANE CO. (1944) K.B., 718 WARI & ORS V MOBIL INC. OF AMERICA & ANOR (2013) LPELR There is need to be reminded that the Federal High Court Rules 2009 remains a subsidiary or secondary legislation which cannot override a primary legislation - Sheriffs and Civil Process Act. The interpretation of the Supreme Court is that S.97 of the Act applies to the Federal High Court. Until Supreme Court departs from this interpretation it remains binding on all lower Courts. I am of the respectful view that the provision of Section 97 of the Sheriff and Civil Process Act is applicable to the Federal High Court. The said provision was complied with by the lower Court. The service of the writ of summons on the defendant/applicant was unimpeachable. I resolve this issue in the circumstance against the appellant. 16

23 This appeal lacks merit, it is hereby dismissed. Suit No. FHC/OW/CS/156/2011 Between Mr. Emmanuel Ojiako & Ors V Nigerian Agip Oil Company Ltd., is hereby remitted back to the lower Court for continuation of trial. N100, cost is awarded against the appellant. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading the draft judgment of my learned brother, Hon. Justice Tunde Oyebamiji Awotoye, JCA, in respect of this appeal which has just been delivered. I am in full agreement with the conclusion reached therein. However, I will like to add a few words of my own in respect of some points that cropped up in the course of resolving the issues formulated for the determination of this appeal. It is well settled that parties and Courts are bound by the record of proceedings of the Court. And a Court is entitled to look through its record to ascertain and/or confirm the position of things in order to ensure, that it is not misled and/or justice of the case is misplaced. 17

24 See the cases of Texaco Panama Incorporation v. Shell Petroleum Development Corporation of Nig. Ltd. (2002) 2 SCNJ 102 and Independent National Electoral Commission, Anambra State & Anor. V. Okonkwo (2008) LPELR In the instant case, the major grouse of the appellant s objection to the competence of the respondent s suit was, that they did not seek leave of the lower Court to issue and serve their writ of summons on the appellant who is outside jurisdiction that is, the leave of the lower Court was not sought and obtained before the respondents writ of summons was issued at Imo State, and the same was served on the appellant, whose address for service as indicated by the respondents is at Rivers State. Additionally, the appellant contended that the said writ of summons was also not endorsed as a writ to be served outside the jurisdiction of the State. Hence, it was not issued, as required by Section 97 of the Sheriffs and Civil Process Act. Contrary to the contention of the appellant, the learned trial Judge having looked through its record, found as a fact that his leave was sought and obtained for the issuance of the 18

25 writ of summons in question. He also confirmed that he gave an order to the effect, that the writ be so endorsed to reflect that it was to be served in another State. (See page 25 of the record of appeal). It is pertinent to point out herein, that the duty to issue writ of summons is that of the Court where the suit is intended to be heard, and not that of the plaintiff. Thus, where a plaintiff/claimant (as the case may be) has duly performed or carried out all what is required of him by the law or relevant procedural rules of the Court, the negligence and/or failure to properly endorse the writ will be that of the Court s registry. It will be greatly unfair and occasion gross injustice to visit the sin of the Court s registry on the innocent litigant. See the cases of G. Cappa Plc v. Nnaegbuna & Sons Ltd. & Anor. (2009) LPELR and Registered Incorporated Trustees Total Cooperative Thrift & Credit Society & Anor. v. Mazi Obi Adindu (2011) LPELR Applying the above settled principle of the law to the instant case, if in any event (which the appellant has failed to prove) that the writ served on the appellant was not endorsed as 19

26 required by Section 97 of the Sheriff and Civil Process Act, then the fault will be regarded as that of the lower Court s registry, and the supposed defect can not be used as a tool to truncate, stultify defeat and/or bring about the striking out of the respondent s writ of summons. Be that as it may, the question that agitates the mind in the given circumstances and peculiar facts of this case is: What specific and/or substantial injustice or adversely negative effect will the non endorsement of the writ occasion to the appellant? I see none. To my mind, the requirement for the endorsement is mainly for the purpose of making assurance doubly sure, that the adverse party is aware of the pending case against it coupled with the giving of adequate and requisite notice to the other party towards its preparation for the defence of the case. It perforce add no single value to the determination of the case on its merit. What is more, the current Federal High Court (Civil Procedure) Rules, 2009, under which the instant action was brought has departed, deviated and/or derogated from this cumbersome, unnecessary and archaic procedural provision. 20

27 In fact, by the provision of Order 6 Rule 31 of the said Rules, out of jurisdiction in respect of the Federal High Court was defined to mean, out of the Federal Republic of Nigeria. There is no dispute or gainsaying the fact that both Imo State and Rivers State are squarely located within the borders of Federal Republic of Nigeria. On the issue of whether the lower Court lacks the jurisdiction to entertain the respondents suit. I have also given due consideration to all the averments contained in the respondents statement of claim, particularly paragraph 6 of the said statement of claim, and I am of the firm viewpoint that the subject matter of the case is properly and squarely within the jurisdiction of the lower Court. It is not in doubt or dispute of any kind, that the appellant is an oil company, which carries out the said business within the respondents community, that is, Akri/Oguta Oil Field. See paragraph 2 of the respondents statement of claim at page 4 of the record of appeal. In the instant case, the respondents further pleaded in paragraph 6 of the statement of claim, that the 21

28 appellant constructed its Akri South 1 Access Road. And this construction caused and still causing the blockage of the free flow of water along UTU-AKWA Creek. I am of the firm viewpoint that the construction of the access road mentioned by the respondents, as per the state of their pleadings, was to allow the appellant gain access to its oil field at Akri/Oguta Oil Field. On the state of the pleadings, the construction of the road was represented to be related to the appellant s oil exploration and exploitation business, thus, the construction of the road can be regarded and rightly too, as relating to, arising from or ancillary to the appellant s oil prospecting/mining operations. And the subject matter of this action falls within the jurisdiction of the lower Court. Sec Section 7 (1)(n) and 7(3) of the Federal High Court Act, For purpose of clarity and/or emphasis, let me quickly touch upon the meaning of ancillary. The word ancillary was defined by the Oxford Advancer's Learner s Dictionary (International Student s Edition), 7th Edition, at page 48 to mean: 22

29 1. Providing necessary support to the main work or activities of an organization. 2. In addition to something else but not as important." It is a trite principle of judicial interpretation of statutes, that if the word of a statute are plain and unambiguous, the only duty required of the Court is to interpret the words of the statute and to give it, its ordinary and plain or natural grammatical meaning. See the cases of Eleburuike v Tawa (2010) LPELR and Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116. In the instant case, the words of Section 7(3) of the Federal High Court Act, 2004 is plain and unambiguous, and the necessary implication of the provision with regard to the ancillary subject matter in respect of items the Federal High Court is vested with powers to exercise exclusive jurisdiction over, covers all acts and/or omissions which is subordinate and aids the execution of the matters specified in Section 7(1) of the Act which are squarely/equally within the exclusive jurisdiction of the Federal High Court. In the instant case, at the risk of repeating myself (but for emphasis), I also do agree with the 23

30 learned trial judge, that from the state of the respondents pleadings, the construction of the access road complained of was ancillary to the appellants mining operation. In the light of the above, I too resolve both issues formulated for the determination of this appeal against the appellant and in favour of the respondents. Based on the above and in addition to the fuller reasons adumbrated in the lead judgment, I am also of the firm viewpoint, that this appeal lacks merit and the same is hereby dismissed by me. I equally endorse the consequential orders made in the lead judgment of my learned brother, Awotoye, JCA. ITA GEORGE MBABA, J.C.A.: I had the advantage of reading the draft of the lead judgment, just delivered by my learned brother, T. O. AWOTOYE JCA, and I agree with his reasoning and conclusion, that the Appeal lacks merit. I too dismiss it and abide by the consequential orders in the lead judgment. 24

31 Appearances: O. J. Irerhime, Esq. For Appellant(s) Tony Ezediaro, Esq. For Respondent(s)