FHA v. FOOD CONCEPT & ENTERTAINMENT LTD (2020)

FHA v. FOOD CONCEPT & ENTERTAINMENT LTD

(2020)LCN/14667(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, October 06, 2020

CA/L/25M/2013

RATIO

PROCESS: WHETHER THE FAILURE TO COMPLY WITH THE MANDATORY PROVISION OF SECTION 97 OF THE SHERIFF AND CIVIL PROCESSES ACT IS A MERE IRREGULARITY THAT CAN BE CURED.

The success or failure of this appeal depends largely on the answer to the above question. If the answer is to the positive or affirmative, which is the position of the Appellant, this appeal will succeed but if it is to the negative, the position of the Respondent, the appeal will fail. The appropriate place to start is the provision of Section 97 of the Sheriff and Civil Processes Act, which is on all fours with the Lagos State Law, that is, the Sheriff and Civil Processes Law of Lagos State. The section provides thus:
“Every writ of Summons for service under this part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the effect (that is to say)
“This summons (or as the case may be) is to be served out of the … State (or as the case may be) … and in the … State (or as the case may be).”
The above provision is not open to double interpretation, which is that it is requirement that should a writ of summon be issued in a state but to be served outside that state, there must be a special endorsement to that effect which is that the writ is to be served outside that state in another state. This is not in doubt as it seems to be a clear provision. The rules of interpretation is clear to the effect that the literal rule of interpretation is to be applied for the purpose of finding the intention of the law maker except if the application of that rule will lead to absurdity or some form of mischief. The literal rule of interpretation requires that the words in the statute or law be given their ordinary grammatical meaning. See Gana vs. SDP & Ors (2019) LPELR-47153 (SC); PDP vs. INEC &Ors (2014) LPELR-23808 (SC). PER TOBI, J.C.A.
PROCESS: HOW A PARTY CAN CHALLENGE NON-COMPLIANCE WITH RULES

The Supreme Court in PDP vs. INEC & Ors (2018) LPELR-44373 stated how a party can challenge non-compliance under the new rules. This was a 2018 case where Rhodes-Vivour, JSC at pages 13-14 held:
“When an originating process is served on the defendant and he has an objection to it, he is expected to either-
(a) enter an appearance on protest, or
(b) enter a conditional appearance, and
(c) file a Notice Motion asking the Court to set aside the purported writ and service of same on the ground of originating process and service being invalid.
If the defendant does not follow the above procedure he cannot question the originating process or service on appeal.” PER TOBI, J.C.A.
APPEARANCE: EFFECT OF CONDITIONAL APPEARANCE

The effect of conditional appearance is that all is not well and the Appellant has a complaint against the case which he will raise. See Izeze vs. INEC & Anor (2018) 11 NWLR (Pt. 1629) 110. In Compagnie Generale De Geophysique (Niglt) CGG Nig Ltd vs. Aminu (2015) LPELR-24463 (SC) the apex Court held thus:
“I earlier on in this judgment alluded to the fact that the defendant/appellant entered a conditional appearance and I explained that the entry of conditional appearance is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction, in this case the non service of originating processes on the defendant/appellant…”
The filing of the conditional appearance is indicative of the fact that all other processes filed are subject to clearing the complaint the Appellant has over the processes. PER TOBI, J.C.A.

WRIT: LEGAL EFFECT OF FAILURE TO ENDORSE A WRIT

The apex Court per Rhodes Vivour, JSC in Izeze vs. INEC (2018) LPELR-44284 held the same position on pages 17-18 of the judgment. I quote from his Lordship:
“If an originating process is valid, any defect in service is a mere irregularity which may make such an originating process voidable but certainly not void.
When the words used in Section 97 of the Sheriff and Civil Process Act are given their ordinary plain meaning without embellishments, it becomes very clear that the provision is mandatory. Service of an originating process without the endorsement as clearly stated under Section 97 supra is not an irregularity. It is a fundamental defect which renders the originating process void.
See Adegoke Motors Ltd v Adesanya & Anor (1989) 20 NSCC (Pt. II) p.327, Nwabueze & Anor v. Justice Obi Okoye (1988) 19 NSCC (Pt. III) p.53, Skenconsult (Nig) Ltd v Ukey (1981) 12 NSCC P1.
Under Section 97 of the Sheriff and Civil Process Act, if an originating process for service out of jurisdiction does not have the endorsement:
This summons (or as the case may be) is to be served out of the .. ….state (as the case may be)…. and in the … state (or as the case may be).”
Such an originating summons is invalid. It is clear that Section 97 of the Sheriff and Civil Process Act is couched in mandatory terms. The Courts would have no discretion under Section 97 of the Sheriffs and Civil Process Act. Once the claimant fails to comply with the mandatory provision in Section 97 supra the Court would no longer have jurisdiction to adjudicate on the suit. It is fundamental that the claimant obeys and comply with the provision. No valid appearance can be entered by the defendant to an originating process that does not have the mandatory endorsement except to enter conditional appearance. PER TOBI, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

FEDERAL HOUSING AUTHORITY APPELANT(S)

And

FOOD CONCEPT & ENTERTAINMENT LTD RESPONDENT(S)

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice Lawal-Akapo of the Lagos State High Court sitting in the Lagos Division delivered on 22/6/2012. The ruling is based on the preliminary objection filed by the Appellant (Defendant/Applicant in the lower Court) challenging the validity of the writ of summons filed by the Respondent (Claimant in the lower Court) against it. The premise of the challenge is that the writ of summons filed on 26/4/08 was defective since it was not endorsed as a writ to be served outside jurisdiction contrary to the provision of Section 97 of the Sheriff and Civil Processes Act Cap S6 Laws of the Federation of Nigeria, 2004. The lower Court after considering the application and the processes filed along with the submissions of counsel came up with a considered ruling wherein the application was dismissed. The lower Court dismissed the application in the ruling found on pages 43-46 of the record of appeal by holding that since the Appellant filed an exparte application to serve the process out of jurisdiction, the statement of claim which supersedes the writ was filed

thereafter and much more that the Appellant having entered appearance and filed other processes in the matter, has waived any right of objection to the competence of the writ. The lower Court also refused the preliminary objection of the Appellant in the lower Court because according to his Lordship, the issue of the endorsement on the writ was a technical issue which should not override or overrule substantial justice. The preliminary objection was dismissed on page 46 of the record in these words:
“In the result, I find no merit in the objection and it is accordingly dismissed.”

The Appellant dissatisfied with the ruling filed an appeal against the ruling vide a notice of appeal found on pages 40-42 of the record of appeal. The notice of appeal has 4 grounds of appeal. The relief sought is for this Court to set aside the ruling of the lower Court delivered on 22/6/12 and to further strike out the suit filed on 26/4/08. The main thrust of the appeal is that the lower Court was wrong in not declaring the writ of summons incompetent as it is contrary to the provisions of Section 97 of the Sheriff and Civil Processes Act in the sense that

there was no endorsement on the writ whereas the writ is to be served outside jurisdiction. For the Appellant, that omission is fundamental and therefore the writ is defective and incompetent. The Respondent on the other hand is of the view that if there is any violation at all, it is not serious enough to set aside the writ as at best it is a mere irregularity. One of them is wrong while the other is right as both of them cannot be right. This is what this judgment will resolve. Before doing that, I will take a brief summary of the submissions of counsel to the parties. The Appellant counsel is Ifeanyi Okeke Esq., who signed the Appellant’s brief while the Respondent’s counsel is Grant Onwuka Esq who signed the Respondent’s brief.

The Appellant’s brief filed on 5/12/14 was deemed on 3/7/19. Learned counsel raised a sole issue for determination which is:
“Whether the failure to comply with the mandatory provision of Section 97 of the Sheriff and Civil Processes Act is a mere irregularity that can be cured.”

Learned counsel for the Appellant answered this question in the negative. In other words, counsel is firm

in his submission that the failure to comply with Section 97 of the Sheriff and Civil Processes Act is not a mere irregularity but rather a fundamental defect that affect the competence of the writ as the word ‘shall’ in the law is mandatory and compulsory. Counsel cited Onochie vs. Odogwu (2006) All FWLR (Pt.317) 544 S.C; Okon vs. Ubi (2006) All FWLR (Pt. 328) 717 CA; Sokeni vs. UTC Nigeria Plc (2006) All FWLR (Pt.310) 1620 CA and Obiekwe vs. Obi (2006) All FWLR (Pt.315) 152 CA. Specifically on the provision of Section 97 of the Sheriff and Civil Processes Act, relying on NPA vs. Eyamba (2006) All FWLR (Pt. 320) 1022 and Owners of MV Arabella vs. Nigeria Agricultural Insurance Corporation (2008) All FWLR (Pt. 443) 1208, counsel submitted that non-compliance with the section is a fundamental defect and as such it is incurably bad and no amendment can cure it. He relied on New Nigeria Bank Ltd vs. Denclag (2004) All FWLR (Pt.228) 606; Nwaigwe vs. Okere (2008) All FWLR (Pt.431) 843. On the point that the Appellant has filed defence and other processes and as such same acts as a waiver to the objection, he relied on

Order 22 of the High Court of Lagos State Civil Procedure which abolished demurrer proceedings

Counsel relying on Turaki vs. Dalhatu (2003) FWLR (Pt. 170) 1374; Obikoya vs. Wema Bank Ltd (1989) 5 NWLR 96 submitted that the lower Court’s inability to follow the decision of the Supreme Court in Owner of Arabella vs. NAIC (supra) offends the long established principle of stare decisis. It is the final submission of counsel that the appeal should be allowed, the ruling set aside and the action struck out.

Learned counsel for the Respondent also raised a sole issue for determination which is not different in substance from the issue raised by the Appellant. This is the issue raised by Respondent;
“Whether the lower Court was not right when the Court held that the non-compliance with Section 97 Sheriff and Civil Processes Act is a mere irregularity which can be waived by the other party taking steps in the matter.”

As expected, the learned counsel answered the above in the affirmative. In other words, the non-compliance with Section 97 of the Act is a mere irregularity and therefore cannot make the writ of summons defective and to be set aside.

Counsel was emphatic in submitting that non-compliance only renders the writ voidable and not void. For this proposition counsel referred to B.B.N. Ltd vs. S. Olayiwola & Sons Ltd (2005) 3 NWLR (Pt.912) 434; Zakirai vs. Muhammad (2017) 17 NWLR (Pt.1594) 181 @ 230-231; Adegoke Motors Ltd vs. Adesanya & Anor (1989) 3 NWLR (Pt.109) 250; Panalpina World Trans. Holding AG vs. C.C. Ltd (2011) ALL FWLR (Pt.600) 1258 etc. Relying specifically on Odua’a Investment Ltd vs. Talabi (1997) 10 NWLR (Pt.523) 1, counsel submitted that the Respondent having entered appearance and filed processes even long before he filed the preliminary objection is deemed to have waived his right to object. He also cited Maja vs. Samouris (2002) FWLR (Pt.98) 818; Ezomo vs. Oyakhire (1985) 3 NWLR (Pt.109) 250. It is the final submission of counsel that the non compliance is a mere irregularity which has been waived by the fresh processes the Respondent filed.

It is now time to address the issue before this Court. I agree with the parties as to the issue before the Court in this appeal. I had mentioned it above and clearly in substance the issue raised by both parties in their briefs is

the same except for the language used. I will therefore not go outside the sole issue raised by both parties but for clarity I will adopt the issue raised by the Appellant in this judgment. For completeness, I will reproduce the issue for determination in this appeal thus:
Whether the failure to comply with the mandatory provision of Section 97 of the Sheriff and Civil Processes Act is a mere irregularity that can be cured.

State or the Capital Territory, have endorsed thereon a notice to the effect (that is to say)
“This summons (or as the case may be) is to be served out of the … State (or as the case may be) … and in the … State (or as the case may be).”
The above provision is not open to double interpretation, which is that it is requirement that should a writ of summon be issued in a state but to be served outside that state, there must be a special endorsement to that effect which is that the writ is to be served outside that state in another state. This is not in doubt as it seems to be a clear provision. The rules of interpretation is clear to the effect that the literal rule of interpretation is to be applied for the purpose of finding the intention of the law maker except if the application of that rule will lead to absurdity or some form of mischief. The literal rule of interpretation requires that the words in the statute or law be given their ordinary grammatical meaning. See Gana vs. SDP & Ors (2019) LPELR-47153 (SC); PDP vs. INEC &Ors (2014) LPELR-23808 (SC).
The Appellant has submitted that the use of the word

‘shall’ makes the special endorsement mandatory and therefore any writ to be served outside a state without the endorsement becomes invalid. The provision mentioned above has made a general provision but the section did not make provision for the consequence for non compliance. This is where we will have great need for judicial authorities, that is, case law as to the consequence of non-compliance. This is the main issue here as clearly from the facts of the case in the lower Court as shown in the record of appeal, the writ was issued in Lagos on 16/4/08 to be served on the Appellant (as Defendant) in Abuja. The writ and the statement of claim found on pages 1-9 of the records never showed that the writ was endorsed for service outside Lagos. The Appellant as Defendant in the lower Court on pages 10-17 of the records entered appearance and filed statement of defence. Three years later, the Appellant filed a preliminary objection, precisely on 3/2/2011 praying the lower Court to dismiss or strike out the writ on the ground that the writ was defective for non compliance with Section 97 of the Sheriff and Civil Processes Act. The lower Court held as

mentioned above that the Act was not violated and so the writ was proper before the lower Court. This is what this appeal is all about.
Before I consider the issue, it is important to deal with one or two preliminary issues that the Respondent placed reliance on which the lower Court used as a yardstick in arriving at its decision. The lower Court held that the statement of claim supersedes the writ and secondly that since the Respondent had filed a defence, it has waived the right to raise objection to the validity of the writ. Let me in very clear terms disagree with that submission. In the first place while it is true generally that the statement of claim supersedes the writ of summons, I agree with the Appellant’s counsel that, this well established principle of law is not applicable in this instance. If there is truly a defect on the endorsement on the writ, I do not see how the statement of claim remedies or rectifies that defect. That argument with due respect to the Respondent’s counsel is of no moment at all. It is not worth considering, not even for a second.
The second argument of the Respondent to the effect that since the

Appellant has filed his defence and processes it has waived the right to raise objection though seem interesting, it cannot fly. This may have been the case if demurrer proceedings have not been abolished when the case was filed. By the abolition of demurrer proceedings, no party can raise objection to any proceedings or processes filed without first filing appearance and his processes. See Disu & Ors vs. Ajilowura (2006) LPELR-955 (SC). In Bamisile vs. Osasuyi & Ors (2007) LPELR-8221 (CA), this Court per Ogunwumiju, JCA held:
“It is therefore, when the Defendant raises a preliminary objection without first filing his statement of defence that the proceedings will amount to a demurrer which is no longer the practice. The proceedings in lieu of demurrer set out under Or. 24 of the High Court Rules already shown above is to the effect that both parties will be allowed to raise a point of objection in law without first filing pleadings…. The delivery of pleadings by both parties is a prerequisite to the raising of an objection in limine to a suit. The objection may be raised immediately after the close of pleadings. See Oruobu vs. Anekwe

(1997) 5 NWLR (Pt. 506) 618 @ 630; Ogunsanya vs. Dada (1990) 6 NWLR (Pt. 156) 347.â
The Respondent referred to the case of Odua’a Investment Ltd vs. Talabi (1997) LPELR 2232 to drive home the point that since the Appellant has filed processes then the right has been waived. Is that true? This is what the Supreme Court held in that case at page 88 vide Ogundare JSC:
“It follows therefore, that where a defendant is served with a writ of summons in breach of Sections 97 and 99 of the Act, he has a choice either to object to the service by applying to have it set aside and the Court ex debito justitiae will accede to the application or ignore the defect and proceed to take steps in the matter. By entering unconditional appearance and filing pleadings, as in the case on hand, he is deemed to have waived his right to object and cannot later in the proceedings seek to set same aside because of the original defect.”
The above case was not decided under the new rules of Court which abolished demurrer proceedings. Under the Court rules that decided that case, demurrer proceedings were still applicable and so that case cannot be

used as an authority on the procedure for challenging a writ under Section 97 of the Act. Even in the Odua’a case, a person is said to waive his right of objection if he enters unconditional appearance and when he files his pleadings. In the instant case instituted at a time when demurrer proceedings have been abolished, the fact that the Appellant filed pleadings cannot be used against the Appellant. What is more, the Appellant did not file an unconditional appearance but rather a conditional appearance. This is on page 10 of the records. The case of Odua’a therefore cannot help the Respondent in its argument of waiver. This case was also emphatic that the breach of a mandatory provision makes what has been done null and void. His lordship held:
“A breach of mandatory enactment renders what has been done null and void. But if the statute is merely directory, it is immaterial, so far as relates to the validity of the things to be done, whether the provisions of the statute are accurately followed out or not. In Woodward v. Sarsons (1875) L.R. 10 cp 733, 746 it was said that “an absolute enactment must be obeyed or fulfilled exactly, but

it is sufficient if a directory enactment be obeyed or fulfilled substantially.”
The Supreme Court in PDP vs. INEC & Ors (2018) LPELR-44373 stated how a party can challenge non-compliance under the new rules. This was a 2018 case where Rhodes-Vivour, JSC at pages 13-14 held:
“When an originating process is served on the defendant and he has an objection to it, he is expected to either-
(a) enter an appearance on protest, or
(b) enter a conditional appearance, and
(c) file a Notice Motion asking the Court to set aside the purported writ and service of same on the ground of originating process and service being invalid.
If the defendant does not follow the above procedure he cannot question the originating process or service on appeal.”
The case mentioned above did not talk about waiver but was clear on what the Appellant should do if it wants to challenge the process. The Appellant entered a conditional appearance and therefore has satisfied the legal requirement. The fact that the Appellant filed statement of defence did not amount to waiver.
The Appellant therefore under the Lagos State Civil

Procedure Rules could not have raised any objection without first filing his appearance and processes including the statement of defence. That apart, it is worthy of note that the Appellant did not enter an unconditional appearance but rather entered a conditional appearance. In simple terms, this means the Appellant entered appearance in protest. The implication is that the Appellant is carrying a placard while entering the appearance. This gives notice to the Respondent that all is not well and the full case is not good to go as the Appellant has a complaint against the process or the initiating procedure of the case. The effect of conditional appearance is that all is not well and the Appellant has a complaint against the case which he will raise. See Izeze vs. INEC & Anor (2018) 11 NWLR (Pt. 1629) 110. In Compagnie Generale De Geophysique (Niglt) CGG Nig Ltd vs. Aminu (2015) LPELR-24463 (SC) the apex Court held thus:
“I earlier on in this judgment alluded to the fact that the defendant/appellant entered a conditional appearance and I explained that the entry of conditional appearance is an appearance under protest and usually means an

appearance to object to the Court’s jurisdiction, in this case the non service of originating processes on the defendant/appellant…”
The filing of the conditional appearance is indicative of the fact that all other processes filed are subject to clearing the complaint the Appellant has over the processes. In the light of the above, the implication is that if I agree with the Appellant that the writ is invalid, the subject of waiver will not arise and it is of no moment. The real issue therefore is, what is the legal effect of the absence of the endorsement? Does it make the writ invalid or it only affect the service of the writ? Putting it the other way, does failure to endorse the writ specially as stated in Section 97 of the Sheriff and Civil Processes Act make the defect a fundamental one which can invalidate the writ or it can be treated as a mere irregularity which can be cured? The Appellant counsel made copious reference to the case of Owner of MV Arabella vs. NAIC (supra) which is to the effect that if the writ is not so endorsed it is not a mere irregularity but a fundamental defect. The apex Court per Rhodes Vivour, JSC in

Izeze vs. INEC (2018) LPELR-44284 held the same position on pages 17-18 of the judgment. I quote from his Lordship:
“If an originating process is valid, any defect in service is a mere irregularity which may make such an originating process voidable but certainly not void.
When the words used in Section 97 of the Sheriff and Civil Process Act are given their ordinary plain meaning without embellishments, it becomes very clear that the provision is mandatory. Service of an originating process without the endorsement as clearly stated under Section 97 supra is not an irregularity. It is a fundamental defect which renders the originating process void.
See Adegoke Motors Ltd v Adesanya & Anor (1989) 20 NSCC (Pt. II) p.327, Nwabueze & Anor v. Justice Obi Okoye (1988) 19 NSCC (Pt. III) p.53, Skenconsult (Nig) Ltd v Ukey (1981) 12 NSCC P1.
Under Section 97 of the Sheriff and Civil Process Act, if an originating process for service out of jurisdiction does not have the endorsement:
This summons (or as the case may be) is to be served out of the .. ….state (as the case may be)…. and in the … state (or as

the case may be).”
Such an originating summons is invalid. It is clear that Section 97 of the Sheriff and Civil Process Act is couched in mandatory terms. The Courts would have no discretion under Section 97 of the Sheriffs and Civil Process Act. Once the claimant fails to comply with the mandatory provision in Section 97 supra the Court would no longer have jurisdiction to adjudicate on the suit. It is fundamental that the claimant obeys and comply with the provision. No valid appearance can be entered by the defendant to an originating process that does not have the mandatory endorsement except to enter conditional appearance. I have examined the originating summons and the amended originating summons and I am satisfied that they were not endorsed for service on the 1st and 2nd defendants at their addresses in Abuja. The originating process is in the circumstances invalid, worthless, and void. Applying for leave to issue and serve the amended originating summons on 10 April, 2015, a day after the said process was issued and served amounts to seeking permission after the act is done. Leave must be obtained before service is affected.
Service of an

invalid amended originating summons on the 1st and 2nd defendants is akin to no service at all. There is absolutely nothing to respond to by the defendants…
The words used are clear and unambiguous and must be given their ordinary usual meaning.”
His Lordship went further on page 23 to hold thus:
“The Court of Appeal was wrong to restrict itself to whether the originating process was properly issued and served on the 1st and 2nd respondents, oblivious of superior legislation, to wit: the mandatory requirement of compliance with Section 97 of the Sheriff and Civil Process Act which was not even addressed by the Curot. The mandatory requirement of Section 97 of the Sheriffs and Civil Process Act must be complied with before the originating process can be valid. It is only after there is a proper endorsement on the originating process, that issuance and service follows. Where, as in this case the originating process is invalid issuing and serving it is an exercise in futility as you cannot serve a void process.”
Similarly the apex Court in PDP vs. INEC & Ors (2018) LPELR-44373 (SC), in a like fashion on pages 15-18

reinforced the legal position in holding that non-compliance with Section 97 of the Sheriff and Civil Processes Act is more than a mere irregularity but it is a fundamental defect that affect the validity of the writ. His Lordship held thus:
“I shall consider whether there was compliance with Section 97 of the Sheriff and Civil Process Act. If there was non-compliance, that would bring the hearing of this appeal to an end.
Section 97 of the Sheriff and Civil Process Act states that:
Every writ of summons for service under this part out of the State or the Capital Territory which it was issued shall in addition to any other endorsement or notice required by the law of such State or the Capital Territory have endorsed thereon a notice to the following effect:
This summons (or as the case may be) is to be served out of the State (as the case may be) and in the State (as the case may be).
Where the words used in a statute are clear and unambiguous they must be given their ordinary meaning. See Mobil v FBIR (1977) 3SC p53, Toriola v. Williams (1982) 7 SC P. 27.
It is so obvious after reading,

Section 97 of the Sheriff and Civil Process Act that it is couched in mandatory terms. It is abundantly clear that any service of a writ without the proper endorsement as stipulated by Section 97 supra, is not a mere irregularity but is a fundamental defect that renders the writ incompetent.
There can be no doubt whatsoever that by virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summons (or originating process) for service out of the State in which it was issued must, in addition to any endorsement of notice required have endorsed on it, a notice indicating, that the summons is to be served out of the State and in which State it is to be settled. Once again failure to endorse the required notice on an originating process for service outside a State where it was issued is not a mere irregularity but a fundamental defect that renders the originating process incompetent. A Court would be deprived of jurisdiction to hear the case if satisfied that there is non-compliance with Section 97 of the Sheriffs and Civil Process Act. See Odua Investment Co. Ltd v. Talabi (1997) 10 NWLR (pt. 523) p.1, Nwabueze & Anor v Justice Obi-Okoye (1988) 4 NWLR (Pt. 91) p. 664.

Skenconsult (Nig) Ltd v. Ukey (1981) 12 NSCC p.1
The Courts have no discretion under Section 97 of the Sheriffs and Civil Process Act. Once the claimant fails to comply with the mandatory provision in Section 97 supra the Court would no longer have jurisdiction to hear the suit. It is fundamental that the claimant obeys and complies fully with the provision. No valid appearance can be entered by the defendant to an originating process that does not have the mandatory endorsement, except to enter conditional appearance.
I have examined the originating summons and the subsequent amendment to it and I am satisfied that there is no endorsement on it for service in Abuja outside Delta State. The originating summons is invalid, worthless and void. There would be no need for me to consider whether leave was obtained, since non-compliance with Section 97 of the Sheriffs and Civil Process Act brings the hearing of this appeal to an end. The Court of Appeal was wrong, while the High Court was right. Once there was non-compliance with the provisions of Section 97 of the Sheriffs and Civil Process Act the trial Court would have no jurisdiction to hear the case.”

Lastly on this is the case of Fayemi vs. Oni & Ors (2019) LPELR – 49291 (SC), the apex Court per Galumje, JSC held:
“Section 97 of the Sheriffs and Civil Process Act provides as follows:-
” 97…Every writ of summons for service under this part out of the state or the Capital Territory in which it was issued shall in addition to any other endorsement or notice required by the law of such state or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say).
‘This summons (or as the case, may be) is to be served out of the …state (or as the case may be)…. And in the…state (or as the oat of the case may be).”
The provision of Section 97 of the Sheriffs and Civil Process Act as reproduced above has been subjected to scrutiny in a member of decisions of this Court. In Izeze vs INEC (supra) which was cited and relied upon by learned counsel for the Appellant, this Court per Rhodes-Viviour, JSC said:-
‘If an originating process is valid any defect in service is a mere irregularity which may make such an originating process voidable but certainly not void. When the words

used in Section 97 of the Sheriff and Civil Process Act are given their ordinary plain meaning without embellishments, it becomes very clear that the provision is mandatory. Service of an originating process without the endorsement as clearly stated under Section 97 supra is not an irregularity. It is a fundamental defect which renders the originating process void.”
In this same case, my Lord, Rhodes-Vivour, JSC said:-
“Applying for leave to issue and serve the amended originating summons on 10th April, 2015; a day after the said process was issued and served amounts to seeking permission after the act is done. Leave must be obtained before service is effected. Service of an invalid amended originating summons on the 1st and 2nd defendants is akin to no service at all.”
In Izeze vs INEC (supra) originating summons was issued out of the registry of the Federal High Court, Warri Judicial Division on the 9th April, 2015. It was signed by a judge and counsel on the same 9th April, 2015. It had no mandatory endorsement as required by Section 97 of the Sheriff and Civil Process Act. The 1st Respondent INEC and the 2nd Respondent PDP had their

respective addresses for service at Abuja, a city outside Delta State. An amended originating summons was filed on the 21st May, 2015. The addresses for service remained the same and there was no endorsement. Learned counsel filed a motion ex-parte on 10th April, 2015 for leave to issue and serve the originating summons on the 1st and 2nd Defendants in Abuja, outside jurisdiction. This Court held that applying for leave to issue and serve the amended originating summons on 10th April, 2015, a day after the said process was issued and served amounts to seeking permission after the act had been done.”
His Lordship after stating the above however validated the writ involved in that case because there was an amendment made to the writ which now placed the address for service for the 1st Respondent within Abuja which made it unnecessary for the endorsement since the amended processes dates back to the original process. This was what made the Supreme Court distinguish that case from the Izeze’s case where the actual service was done outside the state the writ was issued. His Lordship said on page 15-16 thus:
“The addresses for service on

the 2nd and 3rd Respondents were within the Federal Capital Territory. The originating summons that contained the name of the Appellant and the 2nd and 3rd Respondents required no endorsement in line with Section 97 of the Sheriffs and Civil Process Act before service on them. To that extent, the said originating summons cannot be null and void.
The originating summons could only be declared null and void and same could not be amended, if it had been served at the address outside the FCT where it was issued. That is the decision in Izeze vs INEC (supra). Even when the 1st Respondent obtained an order for substituted service, the originating summons was not served at the Ekiti address, as such there was still no service on the Appellant. 1st Respondent found that it was impossible for the originating summons to be served at Ekiti. He now applied and was granted leave to amend the originating process. The amended originating summons was filed on the 10th of September, 2018. The Appellant did not challenge the ruling which granted the leave to amend the originating summons. The amended originating summons contained address for service on the Appellant at

Abuja within jurisdiction as such the requirement for endorsement under Section 97 of the Sheriffs and Civil Process Act was unnecessary…The difference between this case and the case of Izeze vs. INEC (supra) is that the unendorsed process was served outside jurisdiction in Izeze’s case, whereas in the present case there is no such service before the amendment. The order for amendment covered the amended originating summons including the address for service in Abuja. The service of the originating summons in Abuja in line with the Court order was valid and sustainable.”
In the two earlier cases of Izeze vs. INEC (supra) and PDP vs. INEC (supra), the Supreme Court held that the writ was invalid for non-compliance with Section 97 but inFayemi vs. Oni (supra), the Supreme Court held that the writ was valid and not in violation of Section 97 of the Act as a result of the amendment which made the writ to be served within jurisdiction. The most appropriate case for the facts of the case before this Court are the cases of Izeze vs. INEC (supra) and PDP vs. INEC (supra) and definitely not Fayemi vs. Oni (supra) as the facts of the case before this

Court shows that the writ was served outside jurisdiction.
The above cases clearly and unequivocally settle beyond any dispute that non-compliance with Section 97 of the Sheriff and Civil Processes Act makes the writ of summons invalid. This is the position of the Supreme Court. This case was decided on 13/4/18. This case was decided under the uniformed Rules of Court. It could be argued that the endorsement should only void the service and not the writ. In the light of the above Supreme Court cases and the principles of stare decisis, I am under obligation to follow the decision of the Supreme Court. See Nigeria Agip Oil Co. Ltd vs. Nkweke & Anor (2016) LPELR-26060 (SC).
The failure to comply with Section 97 of the Act is therefore fundamental and not a mere irregularity. This is the law and I have not seen any other case later than the Izeze vs. INEC’s case where the Supreme Court held a contrary position.
On this ground alone this appeal should succeed.

This appeal in the circumstance succeeds and it is allowed. Consequently, the ruling of the Lagos State High Court delivered on the 22nd day of June, 2012 in respect of the

Appellant’s Notice of preliminary objection is hereby set aside. The preliminary objection filed on 3/2/2011 succeeds and it is granted. The suit is therefore struck out in its entirety.

I award N300,000 (Three Hundred Thousand Naira) cost in favour of the Appellant against the Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Ebiowei Tobi, J.C.A., with nothing useful to add.

BALKISU BELLO ALIYU, J.C.A.: I agree with the judgment just delivered by my learned brother EBIOWEI TOBI, JCA. I too find merit in this Appeal and I allow it. I also join him in setting aside the Judgment of the lower Court.
I abide by the order of cost made in the lead Judgment.

Appearances:

F. OKAM, ESQ. For Appellant(s)

GRANT ONWUKA, ESQ. For Respondent(s)