FIDELITY BANK PLC V. THE M.T TABORA & ORS (2018)

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

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”-Respondents

…………………….A…………………….

EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): 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 trial 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 on the grounds inter alia, at pages 129 – 130 of the record, that –
This Court having in its Ruling of 20th December, 2005 held that its jurisdiction cannot be invoked IN REM against MT TABORA i.e the 1st Defendant and having set aside the leave granted to the Plaintiff to amend its Statement of Claim upon which the Plaintiff’s motion is grounded and having set aside the purported service by DHL of the Amended Statement of Claim on the Defendants out of jurisdiction of this Court, I am unable to enter final judgment for the Plaintiff against the Defendants on a Writ of Summons which has not been served and an Amended Statement of Claim which has been set aside. The Defendant’s Notice of Preliminary Objection is upheld. The Plaintiff’s Motion on Notice dated 8th December, 2005 is hereby dismissed. (Emphasis supplied)

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

…………………….B…………………….

dismissed it for lacking in merits; hence this further Appeal. The Appeal was brought on a total of 6 grounds of Appeal. The parties, in their respective briefs, argued the Appeal on four (4) issues formulated from the six (6) grounds of Appeal. The issues are 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.

The fortune of this Appeal turns on whether the 20th December, 2005 decision of the trial Court was void ab initio and without more ineffectual? At the lower Court the Appellant’s Counsel was, at pages 298 – 299 of the Record, reported to have adopted a stance –
The learned Counsel for the Appellant posed a few questions which I find interesting. The first question is whether a Judge who has made an order for service of Court’s proceedings (sic: processes) on the Respondents by Courier and at the same time ordering them to put up appearance within 35 days, can turn around to set aside the order pursuant to an application by a party who has not been served with the Writ, and the learned Judge based his ruling on factual allegations contained in the affidavit filed in support of the said incompetent motion? The 2nd question is, if the motion filed by Respondents on the 12th April, 2005 seeking to set aside the service of the Writ was incompetent, since it was filed before service of the Writ, can the learned Judge entertain the said motion and rely on averments in the affidavit in support of same to annul retroactively the orders which he had previously made and which had been carried out?
(Emphasis supplied)
The indubitable fact, as can be gleaned from this summarised despondent mood or frustration of the Appellant, is that inspite of the bitter complaints of Appellant that the learned trial Judge was wrong in acceding to the application of the Respondents to set aside the service of the processes ordered to be served on them through DHL Courier Mail Service, and ordering on 20th December, 2005 the setting aside the service, by DHL Courier Mail Services, of the Writ of Summons and the Amended Statement of claim on the Respondents and the order that they enter appearance within 35 days, the orders made on 20th December, 2005 remain subsisting and extant. The Ruling of 20th December, 2005 and the Orders made therein have not been set aside. The hub question on which the entire superstructure of the Appellant’s Appeals at the lower Court and this Court spins are the questions – does that decision subsist, and if it does, of what consequence or effect does it impact on the Appellant’s application for final judgment? The options open to the Appellant, as a party aggrieved by that decision of 20th December, 2005 are two, but in alternative. That is: by way of an Appeal or an application to the same Court to have the decision and the orders therein set aside ex debito justitae on grounds of jurisdictional ultra vires. There is no doubt that a Judge, for the purpose of the latter option, has jurisdiction to set aside his judgment or Ruling that is a nullity: OJIAKO v. OGUEZE (1962) 1 S.C.N.L.R. 112; EKERETE v. EKE (1925) 6 N.L.R. 118, SILIYUN v. MASHI (1975) 1 N.M.L.R. 55. If the learned trial Judge wrongly and without jurisdiction, as the Appellant alleges, assumed jurisdiction to entertain the application resulting in his Ruling of 20th December, 2005 that decision would have been a nullity ab initio and an exercise in futility, which ex debito justitae the said Judge was entitled to set aside.
At the risk of repetition, the Ruling of 20th December, 2005 was not appealed. There was no application to have it set aside ex debito justitae by any party aggrieved thereby.

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It has not been set aside.
There is always, in this realm, a presumption in favour of the correctness of a Court’s judgment; and until that presumption is rebutted and the judgment set aside, it remains subsisting and prevailing between, and binding on, the parties. Consequently, it must be obeyed. Section 168(1) of the Evidence Act, 2011 (formerly Section 150(1) the Evidence Act, 2004) is enacted to provide emphatically that when any judicial act or order is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. The burden is on the party aggrieved by the judicial act, who thinks otherwise of its validity, to rebut this presumption and move for its setting aside.
This is not the first time the issue: whether a judgment of a Court of competent jurisdiction which a party assumes was per incuriam and a nullity ab initio does not need formal judicial steps taken to have it set aside is coming before this Court. It was addressed in OBA ALADEGBEMI v. OBA FASANMADE (1988) 3 NWLR (pt. 81) 129,and Eso, JSC in his statement opined thus –
– For a Court of competent jurisdiction, not necessarily of unlimited jurisdiction
– has jurisdiction to decide a matter rightly or wrongly. If that Court never had jurisdiction in the matter, then its decision, without jurisdiction, is void. But then should a Court of law not even decide a point? That is: the Court without jurisdiction decided without jurisdiction? Should the decision just be ignored? Surely it would not make for peace and finality which a decision of Court seeks to attain. It would at least be against public policy for persons, without a backing of the Court, to pronounce a Court decision a nullity, act in breach of the decision whereas others may set out to obey it. In my respectful view it is not only desirable but necessary to have such decisions set aside first – (Emphasis supplied)

This view, which not only has the support of the previous decision of the Privy Council in ISAAC v. ROBERTSON(1984) 3 ALL E.R 140, was cited with approval in the subsequent decision of this Court (Full Panel) in ROSSEK v. A. C. B LTD (1993) 8 NWLR (Pt. 312) 382.
The Appellant’s counsel seems to have been carried away by the oft quoted dictum of Lord Denning, MR in MACFOY v. U. A. C. LTD (1961) 3 ALL E. R. 1169 at 1172; (1962) A. C. 152 to the effect that:
If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court to declare it to be so. (Emphasis supplied)
This dictum has been rejected in this jurisdiction, as can be seen from the dicta in OBA ALADEGBEMI v. OBA FASANMADE (supra), and ROSSEK v. A. C. B LTD (supra). It does not represent any correct principle of the law in this country. The majority opinion in ROSSEK v. A. C. B LTD (supra) outrightly rejected the said view of Lord Denning, M. R. in MACFOY v. U.A.C LTD (supra) maintaining that it will lead to anarchy. On this, the majority opinion (of 6 against 1) in ROSSEK v. ACB LTD (supra) is that: A judgment of a Court of competent jurisdiction remains valid and binding unless and until it is set aside by an Appeal Court or by the Court itself, where it acted without jurisdiction and there is an unqualified obligation on every person against whom the decision is giving to obey it; and that to hold otherwise is to clothe the person against whom a judgment is given with the discretion to decide, in his wisdom, that the judgment is invalid and not binding on him; and further that this will amount to an invitation to anarchy.
The subsistence of the Ruling of the trial Court delivered on 20th December, 2005 is not in any doubt. It has not been set aside. It, therefore, does not lie in the mouth of the Appellant to say that the decision is not valid or binding. Until set aside the Ruling remains binding on the Appellant for what it decided and ordered. The net result or consequence of that decision is that –
1. the leave granted on 8th April, 2005 to the Appellant, as the plaintiff, to serve the writ of summons, the Amended Statement of Claim and other processes of that Court on the Respondents, as the defendants, out of jurisdiction by DHL Courier Mail Service; and
II. the service on the Respondents, if at all, by DHL Courier of the writ of Summons, the Amended Statement of Claim and the other processes in the suit and
III. the order directing the Respondents as defendants, to

…………………….D…………………….

enter their appearance to the suit of the Appellant within 35 days of the dispatch of the processes by DHL Courier had been discharged or vacated, and they so remain. The subsistence and bindingness of the Ruling of the trial Court decision delivered on 20th December, 2005 completely knock out the bases the Appellant stood to apply for final judgment in his suit against the Respondent. The Appellant could only apply for final judgment upon the service of the originating process, the Writ of Summons specially endorsed with the Statement of Claim (as amended), on the Respondents. The Appellant seems to concede this point. He submitted, correctly, on the authority of OKAFOR v. IGBO (1991) 8 NWLR (Pt 210) 476, that the issuance, and service of the Writ of Summons on the defendant, are the conditions precedent to the exercise of the jurisdiction which the trial Court may have over the subject matter of the action against the defendant; and that where there is evidence that service was not effected on the defendant any judgment emanating from such proceedings is a nullity. In my firm view, the trial was right when it held that, having set aside the leave it granted to the Appellant to serve the Writ of Summons and the Amended Statement of Claim on the Respondents by substituted means (through DHL Courier) and having set aside the purported service on the Respondent of the Writ of Summons and the Amended Statement of Claim by DHL Courier it was “unable to enter final judgment for the plaintiff (Appellant) against the Defendants (Respondents)” as its own order setting aside the order for service of the processes, and the service of the processes, on the Respondents out of jurisdiction had not been set aside. The lower Court on 19th March, 2009 finding the Ruling of the trial Court delivered on 5th June, 2006 “unimpeachable” held that there was “no reason to disturb same.” I cannot agree more. The lower Court cannot be faulted on this.
As I demonstrated in the foregoing reasons, there is clearly no substance in this Appeal and it is accordingly dismissed in its entirety. Parties shall bear their respective costs.
MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with my learned brother, Ejembi Eko JSC in the dismissal of this appeal and the reasoning from which the decision came about.
To register that support I shall make some comments.
This is an Appeal by the appellant/plaintiff against the judgment of the Court of Appeal, Lagos Division or Lower Court or Court below, Coram: O. Adamu JCA, P.A. Galinje JCA (as he then was) and D. Jauro JCA delivered on the 19th March, 2009 affirming the decision of Mustapha J (as he then was) of the Federal High Court, Lagos wherein he entered a default judgment in favour of the plaintiff/appellant against the respondent for non-appearance and failure to file a statement of defence.
The background facts of this Appeal are well captured in the leading judgment and I see no need to repeat them unless the occasion warrants a reference to any part of those facts.
At the hearing on the 19th February, 2018, learned counsel for the appellant, Chief F. O. Offiah adopted its brief of argument filed on 28th May, 2010 and deemed filed on 28th May 2010 and in it were raised four issues for determination as follows:-
1. Whether the Court of Appeal misdirected itself and came to a wrong conclusion in sustaining the respondent’s Preliminary Objection to the appellants Appeal on the ground that the appellant did not Appeal against the Federal High Court Ruling of the 20th December, 2005.
2. Whether the Court of Appeal erred in law in holding that proceedings which are 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.

Clement Onwuenwunor Esq., learned counsel for the appellant adopted the brief of argument filed on 13th August 2014 and deemed on 19th February 2018. He equally adopted the issues as distilled by the appellant which I am going to utilise.

…………………….E…………………….

ISSUES ONE & TWO
1. Whether the Court of Appeal misdirected itself and came to a wrong conclusion in sustaining the respondent’s Preliminary Objection to the appellants Appeal on the ground that the appellant did not Appeal against the Federal High Court Ruling of the 20th December, 2005.
2. Whether the Court of Appeal erred in law in holding that proceedings which are 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.

Learned counsel for the appellant contended that the Court of Appeal failed to appreciate that the complaint of the Appellant before it related to the failure of the Federal High Court when invited to do so by the appellant in its submission leading to the Ruling of the 5th June 2006 to set aside its ruling which was a nullity, and not against the substance of the said Ruling.
That the Court below failed to address either question in its judgment which are the issues now before this Court. That in order to meet the end of justice, the respondents’ application of 12th April 2005 and ensuring proceedings leading to the trial Court’s decision of 20th December 2005 which the trial Court entertained with out jurisdiction amounted to a nullity and accordingly should have been set aside by the trial Court.
Chief Offiah of counsel for the appellant further argued that service of a writ of summons is very fundamental and that no suit can be determined by a Court unless and until the summons in relation to that suit has been served on the defendant. He cited Okafor v Igbo (1991) 8 NWLR (Pt.210) 476.
That where as in this case the evidence shows that service was not affected on the appropriate party any judgment emanating from such proceedings is a nullity and the Court should have terminated the proceedings upon discovery of that fundamental defect since at that point the Court is well aware that it lack jurisdiction to proceed. He relied on Abubakar v J.M.D.B (1997) 10 NWLR (Pt.524) 242 at 245; National Bank of Nigeria v Guthrie(1993) 3 NWLR (Pt.284) 643 at 659, Kennedy v INEC (2009) 1 NWLR (Pt.1123) 614 at 635.
For the appellant it was submitted that if the respondents were eager to pursue the action timeously they would have followed the regular procedure of entertaining conditional appearance after being served with the processes. That instead the respondents pursued an incomprehensible procedure by filing their application without waiting to be served with the writ of summons and then rejecting service when they were finally served. That if the Court of Appeal had considered this important issue, the appellant’s ground 2 in the Notice of Appeal and issue 2 would not have been struck out by the Court.
Learned Counsel for the respondents, Clement Onwuenwunor Esq submitted that the relief 4 of the appellant’s Notice of Appeal stated clearly for an order of Court allowing the Appeal and entering judgment against the respondents.
That the appellant is bound by the relief in its Notice of Appeal and cannot turn around at the Supreme Court to argue that its Appeal at the Court below was not against the substance of the Ruling of 5th June 2006 dismissing its application for default judgment. He cited Suberu v State (2010) 8 NWLR (Pt.1197) 586 at 612.
He stated that so long as the appellant did not Appeal against the Ruling of the trial Court dated 20th December 2005, the Court below could not have assumed jurisdiction to entertain the appellant’s unnecessary questions on the said Ruling which was not the subject matter of the Appeal before it. He referred to MC Investment Ltd v C. I. & C. M. Ltd (2012) 12 NWLR (Pt.1313) 17; S.P.D.C. (Nig) Ltd v X. M Fed (2006) 16 NWLR (Pt.1004) 189; Owie v Ighiwi (2005) 5 NWLR (Pt.917) 184; M.B.N Plc v Nwobodo (2005) 14 NWLR (Pt.945) 379.
Learned counsel for the respondents submitted that the appellant’s Motion on Notice dated and filed on 8th December, 2005 and its affidavit upon which the ruling appealed against was based, did not raise any issue relating to or concerning the ruling of the learned trial judge delivered on 20th December, 2005 now sought to be set aside. That the appellant is bound by the terms of the prayer of that motion and cannot change the tone of the said prayers at this stage. He cited Okoya v Santilli (1990) 2 NWLR (Pt.131) 172; Ojoh v Kamalu (2005) 18 NWLR (Pt.958) 523 etc.

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The crux of the appellant’s concern herein is that the Court of Appeal failed to appreciate that the complaint of the appellant before it related to the failure of the Federal High Court, when invited to do so by the appellant in its submissions leading to the Ruling of the 5th June 2006 to set aside the Ruling which was a nullity and not against the substance of the said Ruling.
The stance of the respondent is that the appellant being bound by the relief sought in its Notice of Appeal, cannot turn around at the Supreme Court to argue that its Appeal at the Court below was not against the substance of the Ruling of 5th of June, 2006 dismissing its application for default judgment.
Having regard to these contending divergent positions on either side, one is reminded that it is a rudimentary principle of procedure that parties have to be consistent in their case at the trial Court on Appeal to the Court of Appeal and up to the Apex Court. No party is allowed to approbate and reprobate over the same issue. This consistency has to be from first instance to the very end as an Appeal does not change the nature or structure of the dispute between parties. This is because an appeal does not lead to a discolouration of the matter at the beginning as the complaint remains what it is at every stage up to the conclusion of the appeal at the trial Court or Court of Appeal or Supreme Court. See Suberu v State (2010) 8 NWLR (Pt.1197) 586 at 618; Akpa v Itodo (1997) 5 NWLR (Pt.506) 589; Ngige v Obi (2006) 14 NWLR (Pt.999) 1, Oredoyin v Arowolo (1989) 4 NWLR (Pt.114) 172; Ajide v Kelani (1985) 3 NWLR (Pt.12) 248; Agidigbi v Agidigbi & 2 Ors (1996) 6 NWLR (Pt.454) 300.
It is with the guiding principle above stated to the effect that an appeal is not a licence to change the course of the dispute or nature or substance but is a continuum from inception of the case from trial to the very end at the last appeal. It is on that note that I shall refer to what the Court below stated at page 302 of the Record of Appeal, thus:-
“On the 20th of December, 2005, the learned trial judge in a considered ruling granted the prayers contained in the respondents’ application of 12th April, 2005 including orders for service of the writ of summons and the amended statement of claim. There is no Appeal against this ruling. Thereafter the respondent filed a Preliminary Objection to the applicant’s application for judgment in default of appearance. The Preliminary Objection is dated 16th of February, 2006 and filed on 20th February, 2006. The appellant’s motion for judgment and Preliminary Objection were heard together and this resulted in the ruling of 5th June, 2006 against which this Appeal lies.
The decision of 20th December, 2005 which set aside all the processes that were ordered to be served on the respondents has not been set aside. It follows therefore that the processes are deemed to have been withdrawn. There was therefore no service. Any further service of these process which were delivered on the 20th December, 2005 is set aside.
The appellant was aware of this ruling (of the 20th December, 2005) and as such it was bound to submit itself to the decision of the lower Court, instead of playing hide and seek game. The only way out for the Appellant was to seek for a reversal of the ruling of the 20th December, 2005 through appeal.”

The Court below stated further, viz:-
“Learned counsel for the appellant posed a few questions which I find interesting. The first question is whether a judge who has made an order for service of Court’s proceedings on the Respondents by courier and at the same time Ordering them to put up appearance within 35 days, can turn around to set aside the order pursuant to an application made by a party who has not been served with the writ, and the learned judge based his ruling on factual allegations contained in the affidavit filed in support of the said incompetent motion?
The 2nd question is if the motion filed by the respondents on the 12th April, 2005 seeking to set aside the service of the writ was incompetent, since it was filed before service of the writ, can the learned judge entertain the said motion and rely on averments in the affidavit in support of same to annul retroactively the orders which he had previously made and which had been carried out”.
What the Court of Appeal did and why are well captured as that Court went along its summation as follows:-
“The two questions which I said are interesting and I reproduced elsewhere in this judgment are questions which would have been subject to determination on appeal. Unfortunately, those questions are directed at the respondents’ application filed on the 12th of April,

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2003 which sought to set aside the services of the writ of summons and the amended statement of claim.
There is no appeal against the ruling of the lower Court on that application. The appellant refers to that application as incompetent because it was not filed before the services of the writ of summons.
Is the appellant competent to declare a process pending before the Court incompetent? I do not think so. Only a Court of competent jurisdiction can declare a process or a decision of a Court incompetent.”
This Court almost in a similar circumstance in MC Investment v C. L & C. M Ltd (2012) 12 NWLR (pt.1313) at 17 paragraph C held decisively as follows:
“Therefore, there being no appeal against the judgment of the trial Court on the undefended suit on the merits in the absence of any defence to the suit, the judgment of 19th July, 1996 remains valid and cannot be disturbed on appeal.” See also Emeka v Okadigbo (2012) 18 NWLR (Pt.1331)55.
What I see before this Court as background is appellant’s application of 8th December, 2005 which gave rise to the Ruling of 5th June, 2006 and which simply was to “enter trial judgment in default of appearance” and nothing else.
A scenario akin to the present showed up in the case of SPDC (Nig) Ltd v X. M. Fed (2006) 16 NWLR (Pt.1004) 189. In that case a ruling was delivered by the Court of first instance against the appellants on 12th June, 1996. The same appellant filed an application which was dismissed by the same trial Court in its ruling delivered on the 8th October, 1998 on the grounds that the application was similar to the one which gave rise to the ruling of June 12, 1996. The appellant therein being aggrieved with the ruling of 8th October, 1998 Appealed against it to the Court of Appeal against the earlier ruling of the Court delivered on 12 June, 1996. The Court of Appeal struck out the appellant’s issue which was a challenge or question to the ruling of 12th June, 1996 on the ground that the appellant had not Appealed against the ruling of 12th June, 1996 and went ahead to dismiss the Appeal. A further Appeal to the Supreme Court was also dismissed on the same point which I shall refer to hereunder, viz:-
I have earlier in this judgment gone through in some details what transpired in the “history” of the subject matter of this appeal. For the avoidance of doubt, the Appeal to the Court below was against the ruling of the trial Court of 8th October, 1998 and not that of 12th June, 1996. I have earlier in this judgment reproduced part of the pronouncement of this Court below at page 160 in particular in support of this that rather than the appellants appealing against the ruling of 12th June, 1996 laboured in vain, so to speak, and proceeded to appeal against that of 8th October, 1998 which was a ruling that the trial Court refused to revisit a subject matter of the latter application of the appellants which it had already decided and ruled upon. Period! In other words until the decision of the trial Court of 12th June, 1996 is appealed against and set aside by the Court below, that decision subsists and is binding on the appellants in particular or the parties in general. Surely, the Court below was justified and right in my respectful view, in its holding that the trial Court’s decision of 12th June, 1996 operated as an estoppel to bar the appellants from making the application of 2nd January, 1997 which gave rise to the ruling of 8th October, 1998. I so hold.
Per Ogbuagu JSC at Page 199. 

The same route was followed by this Court in the following cases among others, Viz:- Owie v Ighiwi (2005) 5 NWLR (Pt.917)184; M.B.N. Plc v Nwobodo (2005) 14 NWLR (Pt.945) 379.
For effect I shall quote the prayer or relief of the appellant on the said motion paper thus:-
“An order granting leave to the Plaintiff/Applicant herein to enter final judgment as per the writ of summons and the Amended Statement of claim in this suit against the Defendant/Respondents herein in default of appearance.
It is now trite that a case of a party is considered and granted on the relief he has asked for as the other party or opponent is entitled to know the case being presented and which he has to meet. This is an elementary but rather a fundamental principle of the adversarial system of adjudication that impels an applicant to be bound by the prayers in his motion. Therefore a party who has come before the Court seeking a certain known relief cannot change that case at will in each Court as he goes along whether at the trial or on appeal. See Okoya v Santilli (1990) 2 NWLR (Pt.131) 172;

…………………….H…………………….

A.C.B. Ltd v A.G. Northern Nigeria (1969) NMLR 231; Ojoh v Kamalu (2005) 18 NWLR (Pt.958) 523; Zaboley Int’l Ltd v Omogbehin (2005) 17 NWLR (Pt.953) 200.
Indeed, the argument of the respondents captures what is on ground, which is, that the appellant’s Appeal is against one Ruling and in the same breath persuading the appellate Court to set aside another distinct and separate Ruling not appealed against. A presentation such as stated above made a showing in the case of Tomtec (Nig) Ltd v FHA (2009) 18 NWLR (Pt.1173) 358 at 375 and this Court deprecating that approach stated thus:-
“This is obviously erroneous. A party who disagrees with the decision of a Court, has the right to appeal against same either of right or with the leave of Court, except the decision is that of this Court, which is considered final; it is wrong to challenge the decision of a Court of law under the guise of a Preliminary Objection, whether written or oral since the lower Court, by striking out motion of 13th October, 2003, became functus officio and cannot entertain any further proceedings in respect of the appropriateness of the order made therein. The only Court competent to do so is an appellate Court which can only review the decision upon a proper appeal against same.
Appellant could have appealed against the above decision of the lower Court under either Section 233(2) or 233(3) of the 1999 Constitution depending on whether his appeal falls within the category of appeals as of right or with leave of the Courts but he did not utilize that opportunity. It is settled law that where a party fails, or decides not to appeal against any decision of a Court of law, he is deemed to have accepted that decision and is consequently bound by it.
It is in appreciation of the law and practice that the Court below in this instant case held as follows:-
“The respondent promptly filed an application on the 12th of April, 2005 praying the Court to set aside its order of service of processes which was made on the 8th April, 2005 because the 1st respondent had left Nigerian territorial waters before the said order. Argument on this application was concluded on the 15th of November, 2005 and ruling was reserved, Despite the fact that a ruling on the application to set aside the order of service was pending, learned senior counsel for the appellant filed a Motion of Notice dated 8th December, 2005 praying for a final judgment in default of appearance.
On the 20th of December, 2005, the learned trial judge in a considered ruling granted the prayers contained in the respondents’ application of 12th April, 2005 and set aside all the orders he made on the 8th of April, 2005 including orders for service of the writ of summons and the amended statement of claim. There is no appeal against this ruling. Thereafter the respondent filed a Preliminary objection to the appellant’s application for judgment in default of appearance. The preliminary objection is dated 16th of February, 2006 and filed on the 20th of February, 2006. The appellant’s motion for judgment and the preliminary objection were heard together and this resulted in the ruling of 5th June, 2006 against which this Appeal lies.”
Clearly the Court of Appeal was on solid ground when it struck out ground 2 of the Notice of Appeal and the issue 2 which arose from that ground. What the Court below did cannot be faulted and so issues 1 and 2 are resolved against the appellant.
ISSUE No 3
Whether the Court of Appeal was right in failing to enter trial judgment in favour of the appellant.

Learned counsel for the appellant submitted that the sequence of events in the case leads to inescapable conclusion that judgment ought to have been entered in favour of the appellants. That the writ had been issued on the 17th December, 2002, it was not until after the order of the trial Court on the 8th April 2005, that the writ of summons and other processes were duly served on the respondents on 5th May, 2005 through DHL, Courier Service outside the jurisdiction of the Court. The respondents were ordered to enter appearance within 35 days of date of dispatch of the process and they failed to do so rather they returned the same to the Chief Registrar of the Federal High Court, Lagos through a courier service (TNT). That the respondent thereby lost the right of being heard having been given the opportunity. He referred to the case of Dickson v Okoi (2003) 16 NWLR (Pt.846) 397 at 411-412.
In response, learned counsel for the respondent contended that the appellant made no reference to the fact that the ruling on the respondents application to

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set aside the order of service made against them pending before it proceeded to file its application for default judgment against the respondents. That the decision of the learned trial judge delivered on 20th December, 2005 which had not been appealed against and set aside is binding on the appellant, the respondents and even the trial judge and the said decision constituted and operated as issue estoppel in this appeal. He cited Akinyemi v Soyanwo (2006) 13 NWLR (1998) 496.
A look at the proceedings before the Court of Appeal leading to the ruling of 5th June, 2006 the subject matter of this Appeal would show the following as bullet points, viz:-
i. That the writ of summons filed by the appellant on 17th December, 2002 was issued when the respondents were outside the jurisdiction of the Federal High Court.
ii. That as at 8th April, 2005, when learned trial judge made the orders, which were subsequently discharged on 20th December, 2005, the writ of summons has not been served on the respondents.
iii. That when the learned trial judge made certain orders on 8th April, 2005 which included an order for service on respondents and an order 
amending the appellant’s statement of claim, the respondent promptly filed an application on 12th April, 2005 to set aside all the orders of 8th April, 2005 which was granted.
iv. That while the ruling of the learned trial judge on the respondent’s application of 12th April, 2005 was being awaited after arguments had been concluded on the said application on 15th November, 2005 and a date fixed for ruling, the learned senior counsel for the appellant optimistically filed a Motion on Notice dated 8th November, 2005 for final judgment in default of appearance.
v. That the ruling of the learned trial judge delivered on 20th December, 2005 however completely vitiated the basis of the appellant’s motion of 8th December, 2005.
vi. That the appellant did not and has not appealed against the ruling of the learned trial judge delivered on 20th December, 2005 till date.
vii. That when the appellant’s counsel insisted that he would argue the appellant’s Motion on Notice of 8th December, 2005 and the respondents’ Notice of Preliminary Objection filed on 20th February, 2006 be argued together and they were so argued together.

viii. That the learned trial judge ordered that both the appellant’s Motion on Notice filed on 8th December, 2005 and the respondents’ Notice of Preliminary Objection filed on the 20th February, 2006 be argued together and they were so argued together.
ix. That the learned trial judge in a considered ruling delivered on 5th June, 2006 sustained the respondents’ Preliminary Objection but dismissed the appellants’ Motion for judgment on the ground that by its ruling of 20th December, 2005, the purported service on the respondents had been set aside and the Amended Statement of Claim on which judgment is sought has also been set aside.

From the foregoing facts, it is clearly indisputable that the appellant’s issue 3 for determination is thoroughly baseless and fundamentally defective.
What obtains when there is a subsisting order of a Court of competent jurisdiction is well stated in the case ofAkinyemi v Soyanwo (2006) 13 NWLR (Pt.998) 496 per Tabai JSC at page 514.
“it is a settled principle of law that every party to a suit, and indeed every citizen, has an obligation to obey the subsisting Court decision or order in the suit unless and until it is set aside. And the party’s obligation to obey the decision is without regard to his perception about the irregularity or illegality of the decision as long as it subsists. See Odogwu v Odogwu (1992) 2 NWLR (Pt.225) 539; Nigerian Army v Gloria Mowarin (1992) 2 NWLR (Pt.235) 345. The appellant as a party in the case cannot claim ignorance of this decision of the Court of Appeal on the 15th July, 1999. He became aware or deemed to have become aware on the 15th July, 1999 that the Court decided to keep the running of the 45 days in abeyance during the pendency of the motion for variation from the 17th March, 1999 to 15th July, 1999″.
The reality that cannot be wished away in the light of the facts available and the grinding principles is that the learned trial judge in his decision declining jurisdiction and affirmed by the Court of Appeal on the 1st respondent, M. T. Tabora, a vessel on the ground that the time the appellant commenced its action on the 17th November, 2002, the 1st respondent was not within the territorial waters of Nigeria and therefore out of the jurisdiction of the Court and so the trial

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Court could not competently enter judgment against it.
The situation makes baseless the invitation by the appellant that this Court exercise its powers under Section 22 of the Supreme Court Act to enter judgment against the respondents since the appellant had not appealed against the set aside orders for service made against the respondents, which brought to an end the issue which remains subsisting and valid for all time since it is believed to have been accepted by the appellant. The issue is resolved against the appellant.
ISSUE NO 4
Whether the Court of Appeal was right in embarking on a consideration of the law relating to service of a writ of summons in admiralty proceedings.

Learned counsel for the appellant submitted that the Court of Appeal misunderstood the issue relating to service as what appellant was seeking was to re-activate the dormant suit. That the order of the trial Court made on the 8th April, 2005 was merely to serve the Writ of Summons and Amended statement of claim outside the jurisdiction and was a matter in personam and did not require the presence of the vessel within the jurisdiction to invoke the Admiralty jurisdiction of the Court. He cited GMBH v Rivways Lines Ltd NSC. Vol vii 354; (1998) 5 NWLR (Pt.549) 265 at 281.
Learned counsel for the respondents submitted that the application of 12th April, 2005 praying to set aside the order of 8th April, 2005 was substantially based on the fact that the respondents are not within the jurisdiction of the Federal High Court, Lagos and that the trial Court’s order of 8th April, 2005 was set aside on the 20th December, 2005 and appellant did not Appeal against the said order.
That the ruling of trial Court delivered on 5th June, 2006 and the Court of Appeal affirmation dated 19th March, 2009 qualify as concurrent findings of fact which were not perverse cannot be interfered with by the Supreme Court. He cited Military Governor, Lagos State v Adeyiga (2012) 5 NWLR (Pt.1293) 291 at 334; Ucha v Elechi (2012) 13 NWLR (Pt.1317) 330 at 362.
The Court of Appeal had ruled thus:-
“Indeed, I agree with the learned counsel for the respondents that in admiralty action, the presence of the vessel within the jurisdiction of the Court is the foundation of the Court’s admiralty jurisdiction over it. At the time the lower Court ordered for service on the 1st respondent, the 1st respondent was not within the jurisdiction. That order was therefore a nullity. The lower Court therefore, has power to set aside its order which was made without jurisdiction.”
I agree with learned counsel for the respondents that the issue of service of a writ of summons in admiralty proceedings is crucial to this appeal as no Court can enter default judgment against anyone without proof of service of the originating processes. That is the crux of the matter in this appeal.
For clarity I shall refer to pages 306-307 of the Record for what the Court of Appeal said, viz:-
“I also agree that apart from the appellant’s failure to appeal against the ruling of learned trial judge delivered on 20th December, 2005 which set aside the earlier orders of the Court granting leave to the appellant to serve the writ and statement of claim on the respondent and for the latter to enter appearance within 35 days; the said appellant also took risk or acted deliberately in bringing his present application for default judgment knowing fully that there was a pending challenge against the competence of the Court to enter its previous ruling of 8th April 2005 (ex-parte). Instead of appealing against the said ruling or applying to set it aside, the appellant surprisingly brought another application on 8th December, 2005 for the trial Court to enter a default (or summary) judgment in its favour, the refusal of which is the subject matter of this present appeal. Thus the appellant should have waited for the ruling on the application to set aside the earlier orders of the Court (ex-parte) before making an application in the interim for the entry of summary or default judgment. His present action or appeal in disregard of earlier ruling of the Court setting aside the writ and other processes for lack of jurisdiction was not in good faith as it looks as if he is enticing or dragging the Court to give a judgment in the case in which he knows that it had no jurisdiction to do so.
For a fact what is before the Supreme Court is an appeal based on concurrent findings of facts of two Courts below and I shall refer to the attitude of this Court to such presentations.
In Military Governor, Lagos State v Adeyiga (2012) 5 NWLR (Pt.1293) 291 at 334 paras

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F-H, the Supreme Court held as follows:
“In the instant Appeal at this juncture, there are two concurrent findings of fact of the lower Courts. The Supreme Court will not ordinary disturb concurrent finding fact made by the High Court and the Court of Appeal unless a substantial error apparent on the face of the record of proceedings is shown or when such findings are perverse. On going through the record, It is my conclusion that the Court has no duty to interfere with the decision of the two lower Courts.
Akeredolu v Akinremi (No.3) (1989) 3 NWLR (Pt.108) pg. 164; Ibodo v Enarofia (1980) 5-7 SC Pg.42; Ige v Olunloyo(1984) 1 SCNLR Pg.158; Durosaro v Ayorinde (2005) 8 NWLR (Pt.927) Pg.407.

In Ucha v Elechi (2012) 13 NWLR (Pt.1317) 330 at 362 paras D-G, this Court further held as follows:-
This is a case of concurrent findings of fact. The Supreme Court will not interfere with the concurrent findings of fact by the trial Court and the Court of Appeal where there is sufficient evidence in support of such findings and where no substantial error is apparent on the record such as miscarriage of justice and violation of some principle of law or procedure. See Ogunbiyi v Adewunmi (1988) 5 NWLR (Pt.93) Pg.215; Shipcare Nig Ltd v The Owners of the M/V Fortunato & Anor (2011) 2-3 SC (Pt.11) p.1; (2011) 7 NWLR (Pt.1246) 205; Ezeonwu v Onyechi (1996) 3 NWLR (Pt.438) p.499″.
Being well advised in the policy Statements emanating from this Court as adumbrated in the cases above cited and quoted extensively, there is no basis for any interference with what the two Courts below did in their findings and conclusions which came from sound application of the law within the context of the facts available to them. Therefore treading the same path as the reasoning in the lead judgment this appeal lacks merits and I dismiss it.
I abide by the consequential orders made.
MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the lead judgment of my learned brother EJEMBI EKO JSC just delivered and being in complete agreement with the reasoning and Conclusion therein, I adopt same as mine in dismissing the unmeritorious Appeal. I abide by the consequential orders made in the said lead judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading before now, a copy of the well considered judgment of my learned brother, Ejembi Eko, JSC just delivered. I agree with the sound reasoning and conclusion that this Appeal is devoid of merit.
The background facts giving rise to this Appeal have been well summarised in the lead judgment. I shall not repeat the exercise here. Suffice it to say that the crux of the issue in contention between the parties was well captured by the lower Court when it held thus at pages 301 – 303 of the record:
“The appellant’s application for default judgment filed on the 8th of December 2005 was essentially based on the order of the lower Court made on 8th of April 2005, wherein the writs of summons and the appellant’s Amended statement of claim were directed to be served on the respondents.
The respondents promptly filed an application on the 12th of April 2005 praying the Court to set aside its order of service of processes which was made on the 8th of April 2005 because the 1st respondent had left Nigerian territorial waters before the said order. 
Argument on this application was concluded on the 15th of November 2005 and ruling was so reserved, Despite the fact that a ruling on the application to set aside the order of service was Pending, learned senior counsel for the appellant filed a motion on notice dated 8th December, 2005 praying for a final judgment in default of appearance. On the 20th of December 2005, the learned trial Judge in a considered ruling granted the prayers contained in the respondents’ application of 12th April 2005 and set aside all the orders he made on the 8th of April 2005 including orders for service of the writ of summons and the amended statement of claim. There is no appeal against this ruling. Thereafter the respondents filed a preliminary objection to the appellant’s application for judgment in default of appearance. The Preliminary objection is dated 16th of February 2006 and filed on the 20th of February 2006. The appellant???s motion for judgment and the preliminary objection were heard together and this resulted in the ruling of 5th June 2006 against which this appeal lies.
The decision of 20th December 2005 which set aside all the processes that were ordered to be served on the

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respondents has not been set aside. It follows therefore that the processes are deemed to have been withdrawn. There was therefore no service. Any further service of these processes can only be possible if the decision of the lower Court which was delivered on the 20th of December 2005 is set aside.
The appellant was aware of this ruling as such it was bound to submit itself to the decision of the lower Court, instead of playing hide and seek game. The only way out for the appellant was to seek for a reversal of the ruling of 20th December 2005 through appeal. Since that ruling subsists, condition for judgment in the appellant’s claims does not exist.”

On 8/5/2005, the learned trial Judge granted the prayers sought by the plaintiff/appellant vide its motion ex-parte filed on 23/3/2005. The Court ordered as follows:
“1. That leave is granted to the plaintiff/applicant to serve the Court processes on the 1st, 2nd, 3rd and 4th defendants in this action out of this Court by DHL to wit NORTHERN FOX SHIPPING P.O. BOX 3657, WILLEMSTAD CURACAO WEST INDIES and HANSA HUIS ERNEST VAN DIJCKAA I 10, BUS B 2000 ANTWERP, BELGIUM.10.
2. That the 1st, 2nd, 3rd and 4th defendants enter appearance within 35 days of the date of the dispatch of the processes herein by DHL Courier.
3. That leave is granted to the plaintiff to amend its statement of claim in the terms of the proposed Amended Statement of Claim attached to this application as Exhibit MUN-1.
4. That the names of the 5th and 6th defendants are hereby struck out from the suit.
5. That the return date is 23rd May 2005.

The said orders were discharged by the same Court in a ruling delivered on 20/12/2006. The service of the Amended Statement of Claim on the defendants/respondents through DHL to their address at Belgium was also set aside.
The net effect of the ruling therefore is that there was no service of any of the originating processes on the respondents. Curiously and without waiting for the ruling to be delivered, the appellant on 8/12/2005 filed a motion for default judgment against the respondents. The respondents reacted by filing a notice of preliminary objection to the motion on the following grounds:
1. “This Honourable Court has no jurisdiction to entertain the plaintiff/respondents’ application filed on 8th December 2005.
2. On 20th December 2005 this Honourable Court held that it has no jurisdiction over the 1st defendant.
3. The order of this Honourable Court made on 8th April 2005 wherein the plaintiff/respondent was allowed to amend its writ of summons and statement of claim and to serve the defendants/applicants by substituted means were discharges/set aside.
4. There is no service of any writ of summons or statement of claim in this suit on the defendants/ applicants.
5. There is no Amended Statement of Claim subsisting before this Court.

The appellant’s motion and the respondents’ preliminary objection were heard together. The Court upheld the preliminary objection and dismissed the application for judgment in the following terms at pages 129-130 of the record:
“This Court having in its ruling of 20th December 2005 held that its jurisdiction cannot be invoked IN REM against MT TABORA i.e. 1st defendant and having set aside the leave granted to the plaintiff to amend its Statement of Claim upon which the plaintiffs motion is grounded and having set aside the purported service by DHL of the Amended Statement of Claim on the defendants out of jurisdiction of this Court, I am unable to enter final judgment against the defendants on a writ of summons which has not been served and an Amended Statement of Claim which has been set aside. The defendants’ notice of Preliminary objection is upheld. The plaintiffs motion on notice dated 8th December 2005 is hereby dismissed.”
I agree entirely with the Court below that in the absence of an Appeal against the ruling of the trial Court delivered on 20/12/2005, the orders made therein are valid and subsisting. The foundation of the appellant’s motion for default judgment was the existence of a competent suit with parties properly before the Court. The service of originating processes on parties who ought to be served is indispensable in any adjudication. Failure to serve a process where service is required is so fundamental that the party not served and against whom any order is made in his absence is entitled to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction by the Court has not been fulfilled. See: Obimonure Vs Erinosho (1966) 1 ALL NLR 250;

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Kida Vs Ogunmola (2006) 6 SCNJ 165 @ 174; National Bank of Nigeria Ltd. Vs Guthrie Nig. Ltd. & Anor. (1993) 3 NWLR (Pt.284) 643; Ihedioha & Anor. Vs Okorocha & Ors. (2015) LPELR-40837 (SC) @ 69 – 70 B -A.
The premise of an application for a default judgment is that the person against whom the order is sought has been duly served with the writ of summons and statement of claim and has failed to respond or file a defence. As service of those processes on the respondents and the order granting an Amendment of the statement of claim had been set aside, the application for default judgment had no leg to stand on.
The appellant’s failure to Appeal against the ruling of 20/12/2005 was fatal. I am of the considered view that the lower Court was right when it upheld the respondents’ preliminary objection to the appellant’s motion for default judgment.
For the foregoing and the more detailed reasons advanced in the lead judgment, I find this Appeal to be unmeritorious. It is accordingly dismissed. The judgment of the lower Court is affirmed. I abide by the order on costs as contained in the lead judgment.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Eko, JSC, obliged me with the draft of the leading judgment delivered now. I agree with His Lordship that, being unmeritorious, this Appeal should be dismissed.
Appeal dismissed.

Appearances

Chief F. O. Offia with him, Victor Kanu, Esq.-For Appellant

AND

Clement Onwuenwunnor Esq.-For Respondents

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