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Kraus Thompson Org. Ltd v. University of Calabar

KRAUS THOMPSON ORGANISATION LIMITED

V

UNIVERSITY OF CALABAR

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided )

ALOYSIUS IYORGYER KATSINA-ALU, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

DAHIRU MUSDAPHER, JSC (Read the Lead Judgment)

SC.127/2000

FRIDAY, 16TH APRIL, 2004

ACTION - Jurisdiction - Contract - Breach of contract - Appropriate territorial jurisdiction for cases arising therefrom

APPEAL - Interlocutory appeal - When as of right

APPEAL -Issues for determination submitted for adjudication - Duty on appellate court to consider all - Consequences of failure to so consider

CONSTITUTIONAL LAW - Constitution 1979, section 236(1) and (2) and Constitution 1999, section 272(1) - Powers of States’ High Courts to adjudicate on cases occurring within their territories

CONTRACT - Contract - Breach of contract - Appropriate territorial jurisdiction for cases arising therefrom

COURT - Action - Court formulating case contrary to that which was presented by parties - Impropriety of

COURT - Appellate court - Duty on to consider all issues submitted for adjudication - Consequences of failure to so consider

COURT - Issues for determination - Court raising issues suo motu Legitimacy of - Need to adhere to principles of natural justice

COURT - Issues for determination before - Court dealing with issues not placed before it - Impropriety of

JUDGMENT AND ORDERS - Errors or mistake in decisions of court When will lead to reversal of judgment - Miscarriage of justice test

JURISDICTION - Contract - Breach of contract - Appropriate territorial jurisdiction for cases arising therefrom

JURISDICTION - State High Courts - Constitutional powers to adjudicate on cases occurring within their territories Constitution 1979, section 236(1) and (2) and Constitution 1999 section 272(1) considered

JURISDICTION - Territorial jurisdiction -  Determining residence of an individual and a corporation - Considerations in respect of

JURISDICTION - Territorial jurisdiction - Liaison offices as basis of Impropriety of

NOTABLE PRONOUNCEMENT - Territorial jurisdiction - Liaison offices as basis of - Impropriety of

PRACTICE AND PROCEDURE - Issues for determination before court

-  Court dealing with issues not placed before it - Impropriety of

PRACTICE AND PROCEDURE - Service of process or document Service on a corporate body - How effected

STATUTE - Constitution 1979, section 236(1) and (2) and Constitution 1999 , section 272(1) - Powers of State High Court to adjudicate on cases occurring within their territories

Issues:

1.              Whether the finding of the Court of Appeal that the lower court had reached a finding of fact to the effect that the defendant/appellant/respondent does not reside within the jurisdiction of the court i.e Lagos State which the plaintiff/ respondent/appellant has not appealed against was based on any specific issues submitted to the court for determination and if the answer to the issue is no, whether the court could rule or seek an issue without inviting the parties and or their counsel to address the court on such an issue.

2.              Whether the Court of Appeal in stripping the word reside of the quotes as used by the trial Judge i.e. (“reside”) in his ruling had not deprived the word i.e reside of its intended meaning in the context.

3.              Whether the High Court of Lagos State has jurisdiction to hear and determine the appellant’s suit against the respondent based on a contract when the respondent has a liaison office/ residence in Lagos.

4.              Whether it was judicious and judicial exercise of the Court of Appeal’s discretion to refuse to rule on the appellant’s preliminary objection against the respondent’s notice, and grounds of appeal.

5.              Whether on the totality of the evidence and materials before the Court of Appeal, the respondent’s appeal ought not to have failed.”

Facts:

The plaintiff/appellant on the 22nd of November, 1994 took out a specially indorsed writ of summons against the defendant/respondent in an action for breach of contract claiming inter alia liquidated sums for books and journals supplied and interest on the debt sum. The defendant delayed in appearing to defend the suit, consequence of which the plaintiff on the 21 st of December, 1994, filed on a motion for judgment in default of appearance and defence. On the 11th of January, 1995, the defendant entered an unconditional appearance to the suit and applied for extension of time within which to file and serve statement of defence. This was filed on the 6 th of February, 1995. The plaintiff, pursuant to Order 10, rules 1 and 2 of the High Court of Lagos State (Civil Procedure) Rules, 1972 (now Order 11 of the 1994 Rules) applied for summons for judgment on the 22nd of February, 1995 . The defendant filed a notice of preliminary objection to both the suit and the application for judgment on the ground that the Lagos State High Court lacked territorial jurisdiction to adjudicate on the suit as the contract was entered into in Calabar, to be performed in Calabar, and the defendant resides in Calabar. The plaintiff in defending the application maintained that since the defendant has a liaison office in Lagos it can be said that it resides in Lagos and that service on the liaison office is good and proper. The trial court overruled the objection and asserted its right to adjudicate over the matter. The defendant’s appeal to the Court of Appeal was allowed and the plaintiff’s suit struck out.

Dissatisfied, the plaintiff appealed to the Supreme Court, while the defendant also cross-appealed on some observations of the Court of Appeal.