For Service Outside Nigeria, Plaintiff Must Have Good Cause Of Action

In the Court of Appeal,

Holden at Lagos,

On Friday,

July 9, 2010,

Before their Lordships:

Raphael Chikwe Agbo, Justice,

Court of Appeal;

Adzira Gana Mshelia, Justice, Court

of Appeal;

Adamu Jaura   Justice, Court

of Appeal;

CA/L/234/04

Between

JVC Professional Products (U.K) Ltd

(appellant)

and

Mr. Michael Famuyide,

Fadaler Enterprises Nigeria Limited,

Nigerian Television Authority (respondents).

The  learned trial judge examined the affidavit in support of the motion ex parte and conceded that applicant now respondent did not comply with the provisions of Order 8 Rule 4 under consideration. The learned trial judge, however, interpreted that the phrase “or other evidence” referred to in Order 8 Rule 4 reproduced (supra) to include the writ of summons and statement of claim already before the plaintiff/respondent has a good cause of action. The learned trial judge, therefore, refused to set aside the earlier order made granting leave to the respondent to serve writ of sum­mons out of jurisdiction.

The question is whether the learned trial judge exercised the discretion on erroneous principles. A grant or refusal of an application is purely within the province of the discretionary powers of the trial court. Such discretion must at all times, however, be exercised not only judicially but also judiciously on sufficient materials. The law is clear that discretion properly exercised by a trial or lower court will not be lightly interfered with by an appellate court even if the appellate court was of the view that it might have exercised the direction differently. See: Williams v. Williams (1987) 2 NWLR (pt 54) 66. It is only when a trial judge or a lower court exercised discretion upon a worn principle or mistake of law or under a misapprehension of the facts or took into account irrelevant matters thereby giving rise to injustice, that an appellate court will not abdicate its duty to interfere with the exercise of that discretion in order to correct or prevent the injustice. See: Solanke v. Ajibola (1968) NSCC (Vol. 7) 231 or 235.

Having regard to the facts and circumstances of this case, I am of the firm view that the approach taken by the learned trial judge is not erroneous and cannot also be faulted. As at the time the respondent brought the application seeking for leave to serve writ out of jurisdiction, all contained in the case file were the writ of summons dated November18, 2002. The learned trial judge found that the affidavit in support of the exparte application did not disclose sufficient materials, enable the court decide whether. prima facie cause of action against the defendant has been shown so to call upon the defendant appellant to come and answer to the claim.

In the alternative, the trial judge invoked the second arm of the pro visions of order 8 Rules 4, that is “or other evidence”, and looked at the writ of summons and statement of claim thereby arriving at the conclusion that a good arguable case has been disclosed against the defendant/appellant. It was for this reasons that the trial court granted leave to the respondent to serve the writ of summons outside Nigeria. The facts or materials available disclosed good arguable case against the defendant/appellant. This was precisely what the learned trial judge did.

Appellant’s counsel correctly stated the provision of the law relying on the authorities cited that pleadings are not evidence. However, in determining whether a cause of action is disclosed, the court must limit itself to the plaintiffs pleadings. A cause of action is every fact, which is material to be proved to entitle the plaintiff to succeed, or all those things necessary to give a right to relief in law or equity.

Having regard to the reason given by the trial judge as to why he refused to set aside the order made, it cannot be said that the trial judge did not take into consideration the special nature of the jurisdiction to allow service of court processes on foreign defendants. As earlier stated, the requirement was satisfied because the statement of claim disclosed good arguable case against the defendant/appellant. I am satisfied that the learned trial judge took into consideration all relevant matters before refusing to set aside the order granting leave to serve the writ of summons and statement of claim outside jurisdiction. I hold that the learned trial judge exercised his discretion judicially and judiciously having regard to the circumstances of the case.

There is no basis for this court to interfere with the lower court’s exercise of discretion. I will accordingly resolve issue one in favour of the respondent. Issue one fails and is dismissed.

Issue two

The contention of appellant’s counsel was that the finding of the learned trial judge that there was no misrepresentation because the ‘acts said to be misrepresented were not contained in an affidavit made that the allegation of misrepresentation had not been established re erroneous. It was argued that he trial judge erred in law when held that the plaintiff had not misrepresented any facts to the court in its ex-parte application for leave on the ground that “the averments in the affidavit in support of the application for leave do not contain any depositions in respect of the plaintiffs’ cause of action. It can, therefore, not be said that there was a misrepresentation or suppression of facts in the said affidavit.

Respondents’ counsel on the other hand submitted that the various alleged misrepresentations cannot be resolved at this stage, as doing so would be tantamount to venturing into the substantive suit at the interlocutory stage. Learned counsel referred to paragraphs 5 and 11 of the affidavit in support of the appellant’s motion dated September 12, 2003. Learned counsel argued that since appellant has disputed the facts averred to by plaintiff/respondent in the statement of claim, the conflicts could represented any facts to the court in its exparte application for leave on the ground that “the averments in the affidavit in support of the application for leave do not contain any depositions in respect of the plaintiffs’ cause of action. It can, therefore, not be said that there was a misrepresentation or suppression of facts in the said affidavit.

Respondents’ counsel on the other hand submitted that the various alleged misrepresentations cannot be resolved at this stage, as doing so would be tantamount to venturing into the substantive suit at the interlocutory stage. Learned counsel referred to paragraphs 5 and 11 of the affidavit in support of the appellant’s motion dated September 12, 2003. Learned counsel argued that since appellant has disputed the facts averred to by plaintiff respondent in the statement of claim, the conflicts could only be resolved at the trial stage.

As earlier stated under issue one, the trial judge relied on the statement of claim to determination whether there was good arguable case against the appellant to entitle the court grant the leave to serve the writ of summons outside jurisdiction, because the affidavit in support of the motion exparte did not contain sufficient material. All the facts relating to the contract agreement are contained in the statement of claim. Having regard to the nature of misrepresentations raised by the appellant if same are resolved at this stage, it would greatly affect substantive suit. Whether respondents would succeed in proving their claim against the appellant is not relevant at this stage. Courts are enjoined not to resolve issue meant for substantive suit at interlocutory stage.

I am mindful of the fact that an order granting leave to serve writ of summons out of jurisdiction can be set aside on ground of misrepre­sentation of facts in appropriate cases. See Order 9 rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1994. In the instant case, the alleged misrepresentations (if any) cannot be easily resolved at this stage without interfering with the substantive matter.

Every case must, therefore, be treated according to its given set of facts and circumstances. It is my considered view that the learned trial judge rightly declined to set aside the order made granting the respondent leave to serve the writ of summons outside Nigeria. In the circumstance, I hold that issue number two fails and is similarly dismissed.

In the final analysis, this appeal in my humble view is devoid of merit. Appeal dismissed. I affirm the decision of the trial court dated March 31, 2004. Parties to bear own costs.

Culled from The Guardian.