PANALPINA WORLD TRANSPORT HOLDING AG v. CEDDI CORPORATION LIMITED & ANOR
(2011)LCN/4302(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of February, 2011
CA/L/433/10
RATIO
JURISDICTION: WHETHER THE ISSUANCE OF A WRIT OF SUMMONS AND THE SERVICE OF SAME ON A DEFENDANT ARE CONDITIONS PRECEDENT FOR THE EXERCISE OF A COURT’S JURISDICTION
There is no doubt that the requirement of special endorsement as stipulated in section 97 is a mandatory requirement. The position of the law is as rightly stated by the learned trial judge when he stated thus: – ‘”It has been settled in plethora of cases such as Nwabueze v. Okoye & Anr. (1986) 10 11 SCNJ; at 60; Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria (1986) 3 NWLR (Pt 30) at 617; Eimkip Ltd. v. Exquisite Industries (Nig) Ltd. (2003) 4 NWLR (Pt 809) at 88 and United Bank for Africa Plc. v. Ekpo (2003) 12 NWLR (Pt 834) at 332 to mention a few, that issuance of a writ of summons and the service of the same on a defendant, are conditions precedent for the exercise of a court’s jurisdiction over the defendant(s) and that, where there is a fundamental failure to comply with a mandatory requirement of a statute such as the above mentioned Act, the issue is not one of irregularity but a nullity.” PER ADZIRA GANA MSHELIA, J.C.A.
NON-COMPLIANCE: THE EFFECT OF THE NON-COMPLIANCE WITH THE PROVISION OF SECTION 97 OF THE SHERIFFS AND CIVIL PROCESS ACT
What is therefore the effect of the non-compliance? Non-compliance with the provision of S.97 of the Act may have dare consequences. In Odu’a Investment Co. Ltd. v. Talabi (supra) the Supreme Court held that non-compliance with section 97 of the Sheriffs and Civil Process Act renders the service of the writ voidable and the defendant who complains of such non-compliance is entitled ex debito justitiae to have same set aside provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. In Adegoke Motors Ltd. v. Adesanya (supra) the Supreme Court stated the distinction between the validity of a writ and the validity of a service of a writ. A writ may be valid while its service may suffer from some defect. It may also happen that both the writ and its service are invalid. The Supreme Court pronounced that if a writ is valid, any defect in service becomes a mere irregularity which may make such a writ voidable but definitely not void. PER ADZIRA GANA MSHELIA, J.C.A.
WAIVER: WHAT THE CONCEPT OF “WAIVER” ENTAILS AND WHAT ARE THE ELEMENTS THAT MUST BE ESTABLISHED TO PROVE A WAIVER
As a principle of general rule the concept of waiver is denote on intentional and voluntary surrender or relinquishment of a known privilege or right by a party entitled to same which he would have insisted on. It is succinct, an abandonment of right. This principle has been well defined and enunciated by their Lordships of the apex court in the case of Auto Import Export v. Adebayo (2005) 12 SC (Pt 11)74 at 125 – 127, wherein Ogbuagu JSC has this to say at page 122 of the report: – “The concept of waiver, is said to be that a person who is under no legal liability and having full knowledge of his right or interest conferred on him by law, and who intentionally, decides to give them (or some of them) up, cannot be heard to complain that he has not been permitted to exercise those right or that he has been denied the enjoyment of those interests. See: Anon & Ors. v. Ezemo & Ors. (1983) 1 SC 13 at 48 – 49 (1983) 1 SC NLR 1 at 25 per Eso JSC; Elomo v. Oyakhire (1985) 1 NWLR (Pt 2) 195; Adegoke Motors Ltd. v. Dr. Adesanva & Anr. (1989) 3 NWLR (Pt 109) 250 at 292 … to amount to a waiver express or implied, two elements it is settled, must co-exist, namely: – i. The party against whom the doctrine is raised, must have knowledge or be aware of the act or omission which constitute the waiver and ii. He must do some unequivocal act adopting or recognizing the act or omission; See Olatunde & Anr. v. Obafemi Awolowo University & Anr. (1998) 5 NWLR (Pt 567) 178 … Ariori & Ors. v. Elemo & Ors. (supra) were referred to .” In order to establish a waiver, it must therefore be shown, that some step has been taken which is only necessary or only useful if the objection has been actually waived or has never been entertained. See: Dr. Saraki v. Kotoye (1990) 4 NWLR (Pt 143) 144; (1990) 6 SCNJ 31. Also in the case of Ariori & Ors. v. Elemo & Ors. (supra) which was referred to in the authority of Odu’a Investment co. Ltd. v. Talabi (1997) 10 NWLR (Pt 523) 1; (1997) 7 SCNJ 600, Idigbe JSC, at page 22 of the NCC Report while defining the word waiver, had this to say: – “By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which as his option, he could have insisted upon.” Obaseki, JSC on his part at page 25 of the same report opined as follows: – “waiver is according to words and phrase legally defined, vol. 5 page 301 (1 969) Edition reprinted 187 4 defined as the abandonment of a right. A person who is entitled to the benefit of a statutory provision, may waive it and allow the transaction to proceed as though the provision did not exit.” Furthermore and in the case of Carribean Trading & Fidelity corporation v. NNPC (1992) 7, NWLR (Pt 252) 161 at 185, Tobi, JCA, (as he then was) had this to say: – “Waiver carries some element of abandonment of a known legal right. By his conduct, the person given a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows the trend, a court of law will hold that he has waived his right.” In another related case of N.U.B. Ltd v. Samba Pet. Co. Ltd. (2006) 12 NWLR (Pt 993) 123 paragraphs A – C Rhodes-Vivour, J.C.A. (as he then was) while explaining ‘waiver’ had this to say: – “A person who takes part in proceedings, filing applications, moving and defending them, and defending applications filed by the adverse party, in the eyes of the law does so as if all is well. He would not be allowed after taking part in the proceedings to turn round to complain about things left undone that should have been done. He would be deemed to have abandoned his legal right to object by his conduct. He is now stopped from objecting. The abandonment of his legal right to object to the irregularity amounts to waiver.” See also Ayanwoko v. Okoye & Ors. (2010) 1 SC (Pt 11) 30. PER ADZIRA GANA MSHELIA, J.C.A.
ENDORSEMENT OF PROCESS: WHETHER AN APPELLANT CAN BE PUNISHED FOR THE FAILURE OF THE REGISTRAR OF THE COURT TO ENDORSE A WRIT OF SUMMONS OR OTHER ORIGINATING PROCESS ISSUED BY THE COURT FOR SERVICE IN NIGERIA OUTSIDE LAGOS STATE
However, the provisions of Order 3 Rule 9 of the High Court (Civil Procedure) Rules, 2004 clearly states that it is the function and duty of the Registrar of the court issuing the said writ. It is his duty to perform the functions of endorsement. For clarity Order 3 Rule 9 is reproduced hereunder: “9. Subject to the provisions of the Sheriffs and Civil Process Act, a writ of summons or other originating process issued by the court for service in Nigeria outside Lagos State shall be endorsed by the Registrar of the court with the following notice: – “This summons (or as the case may be is to be served out of Lagos State of Nigeria and in the … State.” In B.B.N. Limited v. olayiwola & sons Ltd. cited (supra) by 1st Respondent’s counsel the Supreme Court per Pats – Acholonu J.S.C. (of blessed memory) stated thus: – “The argument of the learned counsel for the appellant is that it is the duty of the registrar of the court to perform the functions of endorsement and therefore the appellant should not be punished for the failure or negligence of the registrar. If the prescription of the law is that a writ should be of certain nature or in certain manner before it can be valid for service, it is the bounden duty of the registrar to perform his duty of endorsing the process. The appellant cannot be punished for the negligence or tardiness of the registrar in the performance of his duty.” PER ADZIRA GANA MSHELIA, J.C.A.
Justice
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
Justice
PANALPINA WORLD TRANSPORT HOLDING AGAppellant(s)
AND
CEDDI CORPORATION LIMITED
2. WORLD PREMIER LOGISTICS SOLUTION (NIGERIA) LIMITEDRespondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling (“Judgment”) of Ipaye J. of the High court of Lagos State delivered on the 30th day of October, 2009 dismissing the Appellant’s Notice of Preliminary Objection challenging the jurisdiction of the court to hear and determine the suit. The 1st Respondent (as claimant) instituted an action on the 17th September, 2008 at the High Court of Lagos State and claimed as per its writ of summons and statement of claim against the Appellant (1st Defendant) and one other as follows: –
A. An order of perpetual injunction restraining the 1st Defendant from transferring, disposing, selling or alienating in any way the claimant’s property situate at No. 4 Creek Road, Apapa, Lagos more particularly described as Plot 1145 Creek Road, Parcel No. 1145 on the Lagos Land Registry General Map to the 2nd Defendant or any third party without first obtaining its consent in writing as stipulated by clause 2 (vii) of the Deed of Sub-lease dated 01/09/92.
B. An order of court restraining the 2nd Defendant from entering or using the claimant’s property in any way without the consent or authorization of the claimant.
C. Damages in the sum of N10, 000.000.00 (sic) (Ten Million Naira).”
On the 18th day of September, 2008 the 1st Respondent commenced the process for serving the Appellant (as 1st Defendant) in Switzerland through diplomatic channel as required by the Rules. The Appellant (1st Defendant) entered a conditional appearance on 26th September, 2008.
on the 11th day of February, 2009 the Appellant filed a Notice of Preliminary Objection challenging service of the originating process.
The objection is at page 252 of the Record of Appeal. For clarity I will reproduce the objection hereunder: -”
NOTICE OF PRELIMINARY OBJECTION TO THE JURISDICTION OF THIS COURT
TAKE NOTICE that 1st Defendant/Applicant do hereby raises a preliminary objection to the jurisdiction of this Honourable court to hear this matter on the following grounds.
GROUNDS
The Honourable court lacks the jurisdiction to hear this case.
PARTICULARS
i. The court processes filed in this suit have not been served on the 1st Defendant/Applicant in line with the provisions of the rule of this Honourable court.
ii. The originating processes filed in this case are incompetent as they are not either signed or are improperly signed.
iii. The originating processes filed in this case have not been served on the Applicant.”
The Respondents on 5/9/09 filed a counter affidavit and written address to the extant preliminary objection. The learned trial judge Ipaye J. in a considered ruling tagged “judgment” at page 672 of the record of appeal had this to say: –
“In the light of all I have elucidated above I must come to the considered conclusion that the jurisdiction of this court remains intact and has not been successfully challenged. The Preliminary Objection dated 11/02/09 is dismissed in its entirety.”
Dissatisfied with the decision of the trial court appellant filed a notice of appeal to this court on 11/11/09 containing six grounds of appeal.
In accordance with the practice of this court parties filed their respective briefs of argument. Appellant’s brief of argument settled by Dr. Bankole Sodipo Esq. was filed on 11/8/10. No reply brief was filed. While Respondents’ brief of argument was filed on 22/9/10.
When the appeal came up for hearing Femi Fajolu adopted the appellant’s brief of argument and urged the court to allow the appeal.
The 1st Respondent’s counsel (Mrs.) Alonge adopted the brief and urged the court to dismiss the appeal. Mr. Paul Omaidu 2nd respondent’s counsel did not file 2nd respondent’s brief of argument but fully support the appeal.
From the six grounds of appeal filed by appellant, five issues were distilled for determination by this court. The issues are: –
2. 1. Whether non-compliance with S.97 of the Sheriffs and Civil Process Act amounts to a nullity which divests the Trial Court of Jurisdiction and whether a waiver by a Defendant so served can cure such non-compliance.
2.2. Whether Trial Judge was right in holding that the duty of endorsing a court process for service outside jurisdiction in line with the Sheriffs and Civil Process Act is that of the Court’s Registrar, hence, exonerating the claimant from the liability of not endorsing the court processes.
2.3. Whether the act of filing a conditional appearance, motion processes to challenge jurisdiction and stay of proceedings or order pending such motion amounts to a waiver of the right to challenge jurisdiction.
2. 4. whether the unsigned translated version of the court processes served on the Appellant constitute valid and enforceable court processes.
2.5- whether the holding of the Trial Judge that the processes were signed by Prof. Yemi Osibanjo when counsel (V.O.M. Alonge Mrs.) stated on oath and in open court that the signature was hers does not go against the weight of evidence.
The 1st Respondent distilled three issues for the court’s determination as follows: –
i. Considering the Supreme Court decision in Ochia v. Talabi (1997) 10 NWLR (pt 523) page 1 that non-compliance with section 97 renders the service of the writ voidable provided the Defendant has not waived the irregularity by taking fresh steps in the proceedings, can the Appellant who has participated in the proceedings set aside service of writ; and whose duty is it to endorse a writ for service?
ii. Where three legal practitioners represent a party, is it proper for only one of them to sign court processes indicating her name, the names of others and the firm?
iii. The Appellant complains that a copy of the issued process translated into German Language was not signed by a practitioner.
Where an originating process has been duly issued by the Registry of court, does the law require a legal practitioner who did not translate the processes to authenticate the translation?
I will adopt the issues as presented by the appellant in the determination of this appeal. Appellant’s counsel argued issues I and III together. For convenience I will treat issues I, II and III together. Learned counsel for the appellant contended that non-compliance with S.97 of the Sheriffs and Civil Process Act amounts to a nullity divesting the court of jurisdiction and this non-compliance cannot be waived. See: Adesola v. Abidoye (1999) 14 NWLR (pt 637) 28 paragraphs E – G. Learned counsel contended that appellant did take steps to suggest that it adopted or recognised the service or non-compliance with the law. That appellant did not do anything in the matter, which amounts to waiving their rights. That appellant filed a conditional appearance but did not file a defence; rather it filed a Notice of Preliminary Objection challenging the court’s jurisdiction which now results to this Appeal. It was further contended that the trial judge misapplied the law of waiver by ruling that the appellant by filing (a) an application dated 6th of October, 2008 inter alia stay of execution of interim restraining order and (b) written address on 11th of February, 2009 in support of 2nd Defendant’s motion for stay of execution and proceeding had waived its right to complain. Appellant’s counsel maintained that all the processes filed, were processes challenging the jurisdiction of the court to hear the case without first determining the Appellant’s Preliminary Objection as such the processes do not constitute waiver within the meaning of waiver as has been ascribed by the court. see: Sobawmowo v. Elemuren (2008) 11 NWLR (Pt 1097) 72 at 18 ratios 5 & 6. Learned counsel submitted that the processes filed were more of insistence by the Appellant that its preliminary objection be heard. Relying on the decision of the Supreme Court in Owners OF THE ARMY “ARABELLA v. N.A.I.C (2008) 11 NWLR (Pt 1097) 182 at 195 ratio 13 & 14 counsel contended that the failure to endorse a writ in accordance with the provisions of S.97 of the Sheriff and Civil Process Act is not a mere irregularity but a fundamental defect that renders the writ incompetent and goes to the jurisdiction of the court and affects the competence of the court.
Furthermore learned counsel submitted that assuming but without conceding that the Appellant by filing those processes did waive its right, he argued such right being statutory cannot be waived. See: Admin/Executive Estate Abacha v. Eke-SPIFF (2009) 7 NWLR (pt.1139) 97.
Finally, learned counsel contended that the cases of Broad Bank of Nig. Ltd. v. Alhaji Olayiwola & Sons Ltd. (2005) 3 NWLR (pt 912); MAJA v. SAMOURIS (2002) 7 NWLR (pt 765); Ezomo v. Oyakhire (1985) NWLR (Pt 2) and Adesoke Motors v. Adesanya (1989) 3 NWLR (Pt 109) are inapplicable in this circumstance because in those line of cases, the parties filed defences and other processes. In the instant case appellant only filed conditional appearance and application challenging jurisdiction for non-compliance with the provisions of S.97.
While arguing issue II appellant’s counsel submitted that S.97 of the sheriffs and civil Process Act cap 56 L.F.N. 2004 makes it mandatory that a writ to be served outside the issuing state must be endorsed in accordance with the provisions of this section and not endorsing same renders the writ defective. see: OWNERS OF THE MV ARABELLA” V. N.A.I.C (supra) and Admin/Executive Estate Abacha v. Eke-Spiff (supra). Learned counsel contended that the registrar of the lower court is not the maker/producer of the writ, hence the ruling of the trial judge that the registrar was responsible for endorsing the writ of service out of jurisdiction amounts to asserting a wrong intention into the provisions of section 97 of the Sheriff and Civil Process Act. That even though the Act did not make provision for whose duty it is to endorse the writ, by practice, it is the responsibility of the maker of the writ as the endorsement is done at the printing stage. It was further argued that section 97 of the Sheriff and Civil Process Act is a condition precedent for the issuing of a writ of service out of a state and the non-compliance thereto vitiates the court of the jurisdiction to entertain the matter irrespective of whose duty it is. Counsel placed reliance on the case of Dongtoe v. C.S.C. Plateau state (2001) 9 NWLR (pt 777) 132.
Learned counsel also submitted that where there is non-compliance with a stipulated pre-condition for setting a legal process in motion, any suit instituted in contravention of the pre-condition provision of the relevant law is incompetent and a court of law is for that reason lacking in jurisdiction power to entertain the suit. See: U.B.A. v. Ekpo (2003) 12 NWLR (Pt 834) 322 at 336 ratio 5. Placing reliance on U.B.A. v. Ekpo (supra) he finally submitted that the ruling of the trial court that it is the duty of the court registrar to endorse a writ for service outside jurisdiction, hence the claimant should be held liable for the registrar’s omission is not supported by law.
1st Respondent’s issue 1 appears to have covered the arguments of appellant’s counsel in support of issues I, II and III. I will briefly reproduce a summary of the argument canvassed under respondents issue I. Learned counsel commenced the argument by submitting that Appellant has effectively served the originating processes and the service is not vitiated by any defect or non-compliance with S.97 of the Sheriffs and Civil Process Act as alleged by the Appellant. That if there was non-compliance with S.97 of the Act in the service of a validly issued writ the Supreme Court has repeatedly held that the non-compliance only renders the writ voidable; not void. That where a writ is valid, an alleged non-compliance with the Act in the service of the writ is a procedural irregularity which can be waived by the party taking steps. See: Adegoke Motors Ltd. v. Adesanva & Anr. ( 1989) 3 NWLR (Pt 109) 250 at 212 – 296. Learned counsel submitted that, it is settled that non-compliance with sections 97 and 99 of the Act if not objected promptly by a party is an irregularity which is capable of being waived by the party taking further steps after he has become aware of the irregularity. Reliance was placed on order 5, Rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules, 2004. Counsel also relied on the Supreme Court cases of Adegoke Motors v. Adesanya & Anr. (supra); Ejomo v. Oyakhire (1995) 1 NWLR (pt 2) 195 and Odua Investment Ltd. v. Talabi (1997) 10 NWLR (pt 523) 1 and contended that where a part takes steps as in this case, he will be deemed to have waived the irregularities and he can no longer insist, on the proceedings being set aside. It was contended that Appellant is deemed to have waived the procedural irregularities alleged having taken further steps in the proceedings. 1st Respondent’s counsel argued that although appellant filed a conditional appearance on 26th day of October, 2008, it did not file any application to set aside the service. That it was on 2nd February, 2009 and 11th February, 2009 respectively (the following year after entering conditional appearance) that the appellant gave an indication of its intention to challenge irregularity in service. Learned counsel relied on various court processes filed by appellant to show that appellant participated in the proceedings even after entering conditional appearance. See pages 84 – 102 volume 1 of the Record of Appeal; pages 434 – 437 of Volume 11 of the Record of Appeal and page 87 of vol. I Record of Appeal. Learned counsel relied heavily on the averments contained in the affidavit in support of the motion on notice dated 6th October, 2008 and contended that appellant joined issues with the 1st Respondent (as claimant) on the substance of the action before the Lagos High Court, as such this amounts to taking fresh steps in the proceedings and it is immaterial that the statements were contained in an affidavit in support of an application and not in the regular pleadings.
Learned counsel further submitted that the Supreme Court has repeatedly held that filing interlocutory application whatsoever other than those challenging jurisdiction amounts to taking fresh steps in a proceeding. See: Obembe v. Wemabod Estate Limited (1977) 5 SC at 132 and N.U.B. Ltd. v. Sambi Petroleum Co. Ltd. (2006) 12 NWLR (Pt 993) paragraphs A – C. Learned counsel submitted that it flow from the foregoing that the Appellant having filed several applications in this suit, has waived its right to object to any irregularity in the issuance of service of the originating process. That a party who invites the court to make such determination invariably subjects itself to the court’s jurisdiction. Counsel urged the court to uphold the decision of the Lagos High Court and dismiss the appeal.
As to whether non-compliance with section 97 is a procedural irregularity which can be waived, counsel submitted that appellant’s contention that section 97 of the Act cannot be waived is legally incorrect. Reliance was placed on the Supreme Court cases of Odu’a v. Talabi (supra). Counsel argued that the case of Sobawmowo v. Elemure (supra), Owners of M.V. Arabella v. N.A.I.C (supra) and Admin/Executive Estate Abarcha v. Eke-Spiff (supra) cited by appellant’s counsel are irrelevant to the instant case. That in all these cases, the question of whether S.97 of the Act can be waived was neither raised nor determined.
Furthermore, 1st Respondent’s counsel submitted that even if it conceded for argument’s sake that the processes served were not endorsed for service out of jurisdiction as required under section 97, it is unquestionable that the alleged failure to do so cannot be visited on the 1st Respondent. That although S.97 of the Act does not specis, who should endorse the writ for service, the Lagos Rules Order 3 Rule 9 makes it explicitly clear that it is the duty of the registrar. See also Supreme Court decision in B.B.N. Limited v. Olayiwola & Sons Ltd. (2005) 3 NWLR (Pt 912) 457 paragraphs B – C. That appellant’s complaint borders on mere technicality to defeat substantive Justice.
Counsel submitted that the Appellant has not contended in this appeal that it has no knowledge of the nature and scope of the claim against it before the Lagos High Court. That its challenge entirely borders on perceived irregularities in service which goes to form and not the substance of the case. That the appellant’s objections go to form and cannot invalidate the service of the court processes or preclude the court from jurisdiction. That Nigerian Courts now look away from technicalities and are now predominantly concerned with the functional essence of the service of originating process in law. See: Ajibola v. Sogeke (2003) 9 NWLR (Pt 826) 531. Counsel urged the court to respect its own decision. That the contemporary altitude of the Supreme Court to frivolous technicalities as those raised by the Appellant is stated in Maja v. Samouris (2002) 7 NWLR (Pt 765) 101 and B.B.N. v. Olayiwola & Sons (supra). Learned counsel finally urged the court to hold that the service of court processes on the Appellant is valid and dismiss the appeal.
I have considered the submissions of both counsel inclusive of the authorities cited in support of the argument canvassed. The main complaint is that the originating processes were not served in accordance with the provisions of section 97 of the Sheriffs and Civil Process Act Cap S.6 LFN 2004. That the non-compliance amounts to a nullity divesting the court of jurisdiction and that this non-compliance cannot be waived. It is not in contention that the appellant is a foreign national resident in Switzerland. Order 8 Rules 1 – 8 of the High Court (Civil Procedure) Rules, 2004 makes elaborate provisions for the service of court processes on a foreign national one of such ways being through diplomatic channels as enshrined in Order 8 Rule 3. It is also not in contention that the trial court granted leave to the respondents on 18th day of September, 2008 to serve the 1st defendant (now appellant) with the originating processes and any other relevant process out of the jurisdiction of the trial court and through diplomatic channels. It is evident from the materials contained in the record that respondents duly complied with the order of court made on 18/9/08. Appellant was duly served but it filed conditional appearance on 26/9/08. On 2/2/09 Appellant filed a Notice of Preliminary Objection challenging the jurisdiction of the court to hear the case, but same was struck out on 13/2/09. On 11/2/09 appellant filed the extant Notice of Preliminary Objection the subject of this appeal. I have earlier on in this judgment reproduced the content of the preliminary objection under reference. As earlier stated the contention of the appellant is that section 97 of the Sheriffs and Civil Process Act mandatorily requires a writ destined for service outside the jurisdiction of the issuing state to be specially endorsed and a failure to do so render the writ void abinitio. For ease of reference and emphasis I will reproduce the provisions of S.97 hereunder as follows: –
“S.97. Every writ of summons for service under this part out of the State or the Federal 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 may be)… and in the… State (or as case may be)”
I have carefully examined the writ and agree with the learned trial judge that same does not bear the requisite endorsement as required by the provisions of section 97 of the Sheriffs and Civil Process Act reproduced supra.
There is no doubt that the requirement of special endorsement as stipulated in section 97 is a mandatory requirement. The position of the law is as rightly stated by the learned trial judge when he stated thus: –
‘”It has been settled in plethora of cases such as Nwabueze v. Okoye & Anr. (1986) 10 11 SCNJ; at 60; Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria (1986) 3 NWLR (Pt 30) at 617; Eimkip Ltd. v. Exquisite Industries (Nig) Ltd. (2003) 4 NWLR (Pt 809) at 88 and United Bank for Africa Plc. v. Ekpo (2003) 12 NWLR (Pt 834) at 332 to mention a few, that issuance of a writ of summons and the service of the same on a defendant, are conditions precedent for the exercise of a court’s jurisdiction over the defendant(s) and that, where there is a
fundamental failure to comply with a mandatory requirement of a statute such as the above mentioned Act, the issue is not one of irregularity but a nullity.”
What is therefore the effect of the non-compliance? Non-compliance with the provision of S.97 of the Act may have dare consequences. In Odu’a Investment Co. Ltd. v. Talabi (supra) the Supreme Court held that non-compliance with section 97 of the Sheriffs and Civil Process Act renders the service of the writ voidable and the defendant who complains of such non-compliance is entitled ex debito justitiae to have same set aside provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. In Adegoke Motors Ltd. v. Adesanya (supra) the Supreme Court stated the distinction between the validity of a writ and the validity of a service of a writ. A writ may be valid while its service may suffer from some defect. It may also happen that both the writ and its service are invalid.
The Supreme Court pronounced that if a writ is valid, any defect in service becomes a mere irregularity which may make such a writ voidable but definitely not void. In the instant case I agree with the finding of the learned trial judge that the writ was validly issued having complied with all necessary conditions for its issue. Leave was obtained in the case at hand as such it is only the validity of the service that is in contention. The service of the writ outside jurisdiction without the appropriate endorsement renders the service irregular as rightly observed by the learned trial judge. The question now is where the party served has taken fresh steps would the irregular service vitiate the entire proceedings? The learned trial judge enumerated some steps taken by the appellant and concluded that steps (iii) and (iv) taken constitutes a fresh step in the proceedings pursuant to a defective service of a writ which is tantamount to a waiver. I wish to note the observation of the learned trial judge appearing at page 671 of the record. Ipaye J. stated thus: –
“In the instant case from the records of the court and the material place before it is undeniable that the applicant pursuant to service took the following steps: –
(i) Entered a conditional appearance;
(ii) Filed the preliminary objection dated 11/02/09 to challenge the jurisdiction of the court;
(iii) Filed an application dated 06/10/08 to inter alia stay execution of interim restraining.
(iv) Filed a written address on 11/02/09 in support of 2nd defendant’s motion for stay of execution of proceedings.
Appellant’s contention is that all the steps taken or processes filed were processes challenging the jurisdiction of the court to hear the case without first determining the preliminary objection as such the processes do not constitute a waiver within the meaning of waiver as has been ascribed by the court. What is waiver?
As a principle of general rule the concept of waiver is denote on intentional and voluntary surrender or relinquishment of a known privilege or right by a party entitled to same which he would have insisted on. It is succinct, an abandonment of right. This principle has been well defined and enunciated by their Lordships of the apex court in the case of Auto Import Export v. Adebayo (2005) 12 SC (Pt 11)74 at 125 – 127, wherein Ogbuagu JSC has this to say at page 122 of the report: –
“The concept of waiver, is said to be that a person who is under no legal liability and having full knowledge of his right or interest conferred on him by law, and who intentionally, decides to give them (or some of them) up, cannot be heard to complain that he has not been permitted to exercise those right or that he has been denied the enjoyment of those interests. See: Anon & Ors. v. Ezemo & Ors. (1983) 1 SC 13 at 48 – 49 (1983) 1 SC NLR 1 at 25 per Eso JSC; Elomo v. Oyakhire (1985) 1 NWLR (Pt 2) 195; Adegoke Motors Ltd. v. Dr. Adesanva & Anr. (1989) 3 NWLR (Pt 109) 250 at 292 … to amount to a waiver express or implied, two elements it is settled, must co-exist, namely: –
i. The party against whom the doctrine is raised, must have knowledge or be aware of the act or omission which constitute the waiver and
ii. He must do some unequivocal act adopting or recognizing the act or omission; See Olatunde & Anr. v. Obafemi Awolowo University & Anr. (1998) 5 NWLR (Pt 567) 178 … Ariori & Ors. v. Elemo & Ors. (supra) were referred to .”
In order to establish a waiver, it must therefore be shown, that some step has been taken which is only necessary or only useful if the objection has been actually waived or has never been entertained. See: Dr. Saraki v. Kotoye (1990) 4 NWLR (Pt 143) 144; (1990) 6 SCNJ 31.
Also in the case of Ariori & Ors. v. Elemo & Ors. (supra) which was referred to in the authority of Odu’a Investment co. Ltd. v. Talabi (1997) 10 NWLR (Pt 523) 1; (1997) 7 SCNJ 600, Idigbe JSC, at page 22 of the NCC Report while defining the word waiver, had this to say: –
“By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which as his option, he could have insisted upon.”
Obaseki, JSC on his part at page 25 of the same report opined as follows: –
“waiver is according to words and phrase legally defined, vol. 5 page 301 (1 969) Edition reprinted 187 4 defined as the abandonment of a right. A person who is entitled to the benefit of a statutory provision, may waive it and allow the transaction to proceed as though the provision did not exit.”
Furthermore and in the case of Carribean Trading & Fidelity corporation v. NNPC (1992) 7, NWLR (Pt 252) 161 at 185, Tobi, JCA, (as he then was) had this to say: –
“Waiver carries some element of abandonment of a known legal right. By his conduct, the person given a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all.
But once his conduct shows the trend, a court of law will hold that he has waived his right.”
In another related case of N.U.B. Ltd v. Samba Pet. Co. Ltd. (2006) 12 NWLR (Pt 993) 123 paragraphs A – C Rhodes-Vivour, J.C.A. (as he then was) while explaining ‘waiver’ had this to say: –
“A person who takes part in proceedings, filing applications, moving and defending them, and defending applications filed by the adverse party, in the eyes of the law does so as if all is well. He would not be allowed after taking part in the proceedings to turn round to complain about things left undone that should have been done.
He would be deemed to have abandoned his legal right to object by his conduct. He is now stopped from objecting. The abandonment of his legal right to object to the irregularity amounts to waiver.”
See also Ayanwoko v. Okoye & Ors. (2010) 1 SC (Pt 11) 30. I have earlier on reproduced (supra) the four steps taken by the appellant as identified by learned trial judge. I agree with the learned trial judge that steps (iii) and (iv) constitutes a fresh step in the proceedings before the trial court. After appellant entered appearance under protest on 25th day of September, 2008, no application was made seeking to set aside the originating process for irregular service. On 6th day of October, 2008 appellant filed a motion on notice seeking for an order staying execution of the interim orders of court made on 18/9/08 and also an order staying proceedings in the suit pending the determination of an appeal filed by the appellant. In the affidavit attached to the motion paper particularly paragraphs 11, 12, 13, 14, 15 and 16 appellant joined issues with the respondents on the substance of the action before the High Court as rightly contended by 1st respondent’s counsel. The averments in the affidavit did not complain of irregular service of the originating process.
Appellant also filed written address. It was only on 2/02/09 and 11/02/09 respectively that appellant filed a preliminary objection challenging the jurisdiction of the court. It is very clear that appellant participated fully in the proceedings even after filing conditional appearance. I have also observed that after appellant’s counsel filed the conditional appearance on 26/10/08 he did not file any application to set aside the service until on 2/2/09 and 11/2/09 respectively when he filed Notice of Preliminary Objection challenging the irregularity of the service. Considering the time lapse appellant cannot be said to have acted timeously after becoming aware of the irregularity. See Order 5 rule 2(1) of the High Court (Civil Procedure) Rules, 2004. For the purpose of emphasis, I will reproduce Order 5 Rule 2(1) which reads as follows: –
“2(1) An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”
I am therefore of the firm view that appellant’s counsel having taken fresh step after becoming aware of the irregularity is deemed to have waived his right to insist on the proceedings being set aside. In other words appellant has relinquished or abandoned the right to complain and was ready to submit to jurisdiction. The contention of appellant’s counsel that the right being statutory cannot be waived cannot hold water. In Odu’a Investment co. Ltd. v. Tarabi (supra) the Supreme Court per Ogundare J.S.C. (of blessed memory) at page 51 had this to say: –
“Reading carefully the wordings of sections 97 and 99 of the Act I am of the firm view that the provisions of these sections are for the benefit of defendants alone rather than of the general public.
The purpose of section 99 is to give a defendant served in a state outside the one in which the writ was issued sufficient time to enable him make appearance. The endorsement to the writ required by section 97 informs him that the writ was issued in another state with this view of these sections I cannot say that a breach of any of them is of such incurable nature that cannot be waived by the person for whose benefit they are provided, that is, the defendant. I think he can waive them if he chooses.”
See also Ariori v. Elemo (1983) 1 SCNLR 1. It is clear from the pronouncements of the Supreme Court in the two cases referred to (supra) that a person who is entitled to the benefit of a statutory provision may waive it.
It is not in dispute that the writ or originating processes were not endorsed for service out of jurisdiction. Both counsel conceded that the S.97 of the Act does not specify who should endorse the writ for service.
However, the provisions of Order 3 Rule 9 of the High Court (Civil Procedure) Rules, 2004 clearly states that it is the function and duty of the Registrar of the court issuing the said writ. It is his duty to perform the functions of endorsement. For clarity Order 3 Rule 9 is reproduced hereunder:
“9. Subject to the provisions of the Sheriffs and Civil Process Act, a writ of summons or other originating process issued by the court for service in Nigeria outside Lagos State shall be endorsed by the Registrar of the court with the following notice: –
“This summons (or as the case may be is to be served out of Lagos State of Nigeria and in the … State.”
In B.B.N. Limited v. olayiwola & sons Ltd. cited (supra) by 1st Respondent’s counsel the Supreme Court per Pats – Acholonu J.S.C. (of blessed memory) stated thus: –
“The argument of the learned counsel for the appellant is that it is the duty of the registrar of the court to perform the functions of endorsement and therefore the appellant should not be punished for the failure or negligence of the registrar. If the prescription of the law is that a writ should be of certain nature or in certain manner before it can be valid for service, it is the bounden duty of the registrar to perform his duty of endorsing the process. The appellant cannot be punished for the negligence or tardiness of the registrar in the performance of his duty.”
The contention of Appellant’s counsel that it is the responsibility of the maker of the writ to endorse it for service is incorrect having regard to the rules of court cited (supra) and the pronouncement of the Supreme Court in B.B.N. Limited v. Olayiwola & sons Ltd. referred to (supra). I agree with the submission of 1st Respondent’s counsel that Appellant’s complaint borders on mere technicality and court’s now look away from technicalities and are concerned with doing substantial Justice. The appellant’s objections go to form and cannot invalidate the service of the court processes or preclude the court from jurisdiction. See: Ajibola v. Sogeke cited (supra) by 1st respondent’s counsel. Accordingly I hold that issues I, II and III fails and are hereby dismissed along with grounds of appeal 1, 3, 4, and 5.
Issue (iv) is derived from Ground two of the Notice of Appeal.
The contention of Appellant’s counsel is that the translated version of the court processes filed in court below and served on the appellant are documents to be relied on by the claimants at the trial hence constituting court processes that should be signed in accordance with the law requiring signing of documents. Learned counsel submitted that the translated processes have provision for signing and the seal of the translator does not amount to the signature of the maker. It was contended that the translated copies are court processes and/or document which requires signing, hence, the non-signing of same render them worthless and no value should be attached to it. He placed reliance on the case of Aiki v. Idowu (2006) 9 NWLR (Pt 984) 47 at 50 ratio 5. See also Fasehun v. A.G. Federation (2006) 6 NWLR (pt 975) 4g ratio 12. Learned counsel submitted that the holding of the court below that a legal practitioner is not supposed to sign the translated Copies violates the position of the law that every court process should be signed by the litigant or his legal practitioner as the translator is neither the litigant nor his legal practitioner. See: N.N.B. Plc. v. Denclag Ltd. (2005) 4 NWLR (Pt 916) 549 at 560 ratio 17. Learned counsel further submitted that the court processes having not been signed are void and that respondents did not fulfill the condition precedent for commencing this action, hence, vitiating the jurisdiction of the lower court to hear the matter. See: U.B.A. v. Ekpo and Dongtoe v. C.S.C. Plateau State (supra). Learned counsel submitted that assuming without conceding that the translator signed the translated court processes, such signing is defective as he is neither the litigant nor his legal practitioner based on the authorities. Counsel placed reliance on N.N.B. Plc. (supra) and Okafor v. Nweke (2007) 10 NWLR (Pt 1043) S.C 521.
1st Respondent responded to this complaint under issue 3. Learned counsel submitted that the law does not require a legal practitioner to sign the translation of an already issued originating process. That the translation of an originating process into a foreign language after it has been duly issued by the court is only to enable a foreign defendant understand the content of the original processes prepared and duly issued in English Language, the official language of the Nigerian Courts.
Learned counsel submitted that the legal practitioner is not the translator of the document he cannot be expected to authenticate or sign the translated copies of the originating process as to wrongly suggest that he did the translation and that the translation is accurate. It was contended that it is not a requirement under Lagos Rule or any rule of law known to the 1st respondent or cited by the Appellant that the translated copies accompanying an originating process must be signed and issued like the original processes of the court. See Order 8 Rule 3(a) of the High Court Lagos State (Civil Procedure) Rules 2004. Learned counsel contended that it is clear from the wording of Order 8 Rule 3(a) that what is required under the rule is a translation of the original court processes into German. That there is no requirement under this rule that the translation should be signed and sealed like the original as to make it another writ in the same action. Counsel referred to the statement of the learned trial judge at page 668 of the Record of appeal to buttress his point that appellant’s argument imports a totally strange requirement into the court rules. Learned counsel submitted that appellant’s reference to Aiki v. Idowu. Fashehun v. A.G.F., U.B.A. v. Ekpo and Dongtoe v. C.S.C. Plateau State is absolutely erroneous. He said in all these cases, the court did not determine the question of who should authenticate or sign the translated copy of an already issued originating process which was made for the benefit of a foreign defendant. Learned counsel urged the court to hold that 1st Respondent’s counsel is not required by law to authenticate the German translation accompanying the original originating processes served on the Appellant. That the court should uphold the decision of the Lagos High Court and dismiss this appeal.
The complaint of the appellant is that a copy of the issued originating process translated into German Language was not signed by a legal practitioner. The relevant rule under consideration is Order 8 Rule 3(a) which provides as follows: –
“The process to be served shall be sealed with the seal of the court for service out of Nigeria, and shall be transmitted to the Solicitor General of the Federation by the Chief Registrar together with a copy translated into the language of that country if not English, and with a request for its further transmission to the appropriate authority in that country.”
I agree with the submission of Appellant’s counsel that following the decision of the Supreme Court in Okafor v. Nweke (supra) court processes are to be signed by a litigant or legal practitioner. A careful reading of the provisions of Order 8 Rule 3(a) showed that what is required under the rule is a translation of the original court process into German Language. The rule did not state that the translated version should be signed and sealed like the original court process. It is the processes filed by the legal practitioner that is being reproduced in another Language. The objective of any interpretation is to discover the intention of the law maker which can be deduced from the language used. The duty of the court is to interpret and to give adequate and as close as possible accurate and ordinary meaning to the words used. See: N.I.W.A. v. G.C.I.T.E. (2008) 7 NWLR (pt.1085) 109 at 130. I also hold the view that it is not the duty of the Court to import into the rules what is not there or intended as urged upon us by appellant’s counsel that we should hold that the translated process should be signed by a Legal Practitioner. It is therefore my considered opinion that the appropriate person to sign or endorse the translated version of the court processes should be the translator so as to confirm that it is an accurate and true translation of the original which was prepared in English Language and also served on the foreign defendant. As rightly submitted by 1st Respondent’s counsel reference to the cases of Aiki v. Idowu; Fashehun v. A.G.F.; U.B.A. v. Ekpo and Dongtoe v. C.S.C. Plateau State (supra) is erroneous. None of the cases relied upon by counsel determined question of who should sign copy of an already issued originating process which was made for the benefit of a foreign defendant. Appellant’s counsel did not also supply to the court the legal authority he referred to in his brief of argument paragraph 3.3.1 i.e. “THE LAW ON WHO SHOULD SIGN – REGISTRAR OR CLAIMANT” to enable the court have the benefit of determining its relevance to the case at hand. I could not also lay hand on the said authority. I am therefore of the firm view that the conclusion reached by the learned trial judge on this issue cannot be faulted. This is what the learned trial judge said at page 668 of the record: –
“From the materials placed before the court as in Exhibits SCP11 – SCP03 it is not in conclusion that the claimant/respondent complied in full with the requirements for service through diplomatic means as enumerated in order 8 Rule 3 of the 2004 HCLCP reproduce above. Having examined the above provisions carefully no where on same is it a requirement that a copy of the court processes translated into a language other English has to the signed by the Legal practitioner and I so hold. The reason for this cannot be far fetched as it would be a strange requirement to require a legal practitioner practicing in Nigeria where English language is the recognised language of the court system to append his signature to a document written in a language of his trade and I so hold. I agree with learned counsel for the respondent that at best, the translator would be required to endorse a document written in a foreign language to indicate that same is a faithful, accurate and true translation of the original written in the English Language and I so hold. In the instant case there is no contention as to the fact that the German versions of the court processes were all duly signed by the translator, I hold that this is sufficient and meets the requirement of the law.”
In the circumstance, I hold that issue four (iv) fails and is resolved against the appellant.
As regards issue five (v) learned counsel for the appellant submitted that based on the authorities of Okafor v. Nweke and N.N.B. Plc. v. Denclag (supra) court processes signed by a team of legal practitioners as in this case by Prof. Yemi Oshinbanjo (SAN), Babatunde Irekere, VOM Longe and Simmons Cooper partners are irregularly signed and void as there will be the need to call oral evidence to resolve who owns the signature. Learned counsel contended that where a court process is fundamentally defective like in this case, such processes are incompetent and are liable to be struck out. See: Okafor v. Nweke (supra). It was contended that the signing of the court processes filed in this case by a team of legal practitioners is akin to signing same in the name of partnership. Learned counsel therefore urged the court to allow the appeal and set aside the ruling “Judgment” of the lower court delivered on 30th day of October, 2009.
In response, learned counsel for the 1st respondent submitted under issue 2 that where legal practitioners represent a party in a suit, a court process duly signed by one of them is properly signed and valid as a matter of law. No law precludes a party from retaining the service of as many legal practitioners as it desires in any case. That the law does not require all the legal practitioners whose names appear in a court process to individually append their signatures. See: Ibrahim v. Sheriff (2004) 14 NWLR (Pt 892) at 68 paragraph F and INEC v. Oshiomole (2009) 4 NWLR (Pt 1132) 607 at 636 – 637 paragraphs F – C. Learned counsel submitted that in INEC v. Oshiomole, this court specifically held that a court process signed by a junior counsel (whose name was not even on the list of six senior counsel at the foot of the petition) was validly signed. This Honourable court upholding the decision of the Tribunal on the same point held as follows: –
“The Tribunal is right; the days of Justice by technicality are definitely over. The petition in the case was signed and to dismiss the petition on the ground that there is no evidence that any of the six senior counsel listed at the foot of the petition signed it is to fall into the trap of undue technicality.”
Learned counsel further submitted that what is not permissible in law is for a court process to be signed in the name of a law firm or partnership without any indication of the name of the legal practitioner. Learned counsel submitted that the originating process and the accompanying court processes were signed by V.O.M. Alonge (Mrs.) one of 1st respondent’s counsel whose name (in addition to the names of other counsel and the law firm used for service of processes) is clearly indicated on the originating processes.
1st Respondent’s counsel referred to the Supreme Court case of Registered Trustees of the Apostolic Church, Lagos Area v. Tahman Akindele (1967) All NLR at 120 – 121 and contended that V.O.M. Alonge (Mrs.) who signed the originating process and accompanying court processes is admittedly a duly registered legal practitioner. The addition of the name of the other counsel to the claimant and the registered name of the firm Simmons Cooper Partners whose address is used for service cannot invalidate the signature. Learned counsel contended that the decisions in the two cases of New Nigerian Bank Plc. v. Denclas Ltd. (supra) and Okafor v. Nweke (supra) relied upon by the appellant do not support Appellant’s argument. That the clear reason for the decision of the court in the two cases is that the processes did not contain the name of qualified legal practitioner who signed the court processes and only a legal practitioner can sign a process under section 2(1) and 24 of the Legal practitioners Act.
The main complaint of the appellant is that the court processes filed by team of legal practitioners violates the principle of law that a litigant or his Legal Practitioner not Legal Practitioners should sign court processes. He placed reliance on the cases of Okafor v. Nweke (supra) and New Nigeria Bank Plc v. Denclas Ltd (supra).
In New Nigerian Bank’s case, the processes were signed in the name of Ibrahim Hamman & Co without the indication of the name of the Legal Practitioner who signed the Processes. In the like, in Okafor’s case, the processes were signed in the name of the firm of J. H. O. Okolo SAN & Co. The name of the legal practitioner who signed the process was not included. In these two similar cases the court held that the processes were signed by a firm of a Legal practitioner and not a Legal Practitioner. The clear reason for the decision of the court in these two cases is that the processes did not contain the name of a qualified legal practitioner who signed the court processes and only a Legal practitioner can sign a process under section 2 (1) and 24 of Legal Practitioners Act. See also Oketade v. Adewunmi & 4 Ors . (2010) 2- 3 SC (pt. 1 ) 140.
In the instant case the originating processes bears the name of all the three Legal Practitioners representing the 1st respondent. It is in evidence that one of the three Legal Practitioners signed the processes.
The fact that the name of the law firm and address also appeared on the processes does not mean that the processes were signed in the name of law firm. The facts as presented in the case at hand is not on all fours with the facts stated in the two cases referred to earlier and relied upon by appellant’s counsel. There is no law which says that a litigant cannot be represented by more than one Legal Practitioner. What is required is that a Legal Practitioner known to law must sign processes and not in the name of law firm or Partnership. Following the decision of this court in INEC v. Oshiomole (supra) the argument of appellant’s counsel that the court must ascertain the actual person who signed the process cannot be sustained. This court specifically held that a court process signed a by junior counsel (whose name was not even on the list of six senior counsel at the foot of the petition) was validly signed. Further, in upholding the decision of the Tribunal, this court on the same point held as follows:-
“The Tribunal is right, the days of Justice by technicality are definitely over. The petition in this case was signed and to dismiss the petition on the ground that there is no evidence that any of the six senior counsel listed at the foot of the petition signed it is to fall into the trap of undue technicality”.
See also Ibrahim v. sheriff (supra). In the circumstance, I am of the firm view that the originating processes and the accompanying court processes were not irregularly signed by team of Legal Practitioners as contended by appellant’s counsel. The court processes were signed by a Legal Practitioner by name V. O. M. Alonge (Mrs.) one of 1st Respondent’s counsel whose name in addition to the names of other counsel and the law firm used for service of processes) is clearly indicated on the originating processes. Contrary to the submission of appellant’s counsel the originating processes were not signed in partnership name as such same is not fundamentally defective. In the light of the above reasoning issue five (v) fails and ground of Appeal to which it is married is also dismissed.
In the result, having resolved all the issues against the appellant, I hold that this appeal is devoid of merit. Appeal is hereby dismissed. I affirm the ruling (‘Judgment’) of the court below delivered on the 30th day of October, 2009. I shall award N30, 000.00 as costs in favour of the 1st respondent.
JOHN INYANG OKORO, J.C.A.: My learned brother, Mshelia, JCA obliged me a copy of the Judgment just delivered and I agree completely that this appeal lacks merit and ought to be dismissed. All the salient issues submitted for the determination of this appeal have been meticulously addressed by my learned brother and I adopt his reasons for dismissing this appeal as mine. I abide by all consequential orders made in the lead Judgment, including order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have had the benefit of reading before now the lead Judgment just delivered by my Lord Adzira Gana Mshelia JCA, and I am in total agreement that the appeal has no merit and should be dismissed.
The Writ of Summons though properly endorsed for service out of jurisdiction had been irregularly served but such irregularity had been waived by the sundry acts of participation in the proceedings i.e. the subject matter of the case. Furthermore the signing of a court process by only one of the legal practitioners whose names are subscribed as appearing for a party is competent and the process is not rendered invalid, just as a legal practitioner is not bound to sign a translated version of a court process or summons in a foreign language when he is not the translator thereof. For the above reasons and the fuller reasons so lucidly set out in the lead Judgment, which I adopt, I too dismiss the appeal and abide by the order as to costs made in the lead Judgment.
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Appearances
Femi Fajolu with N. Okonkwo (Miss)For Appellant
AND
V.O.M. Alonge (Mrs.) with Abimbora Ojonike and I. Otegbade (Miss)
Paul OmaiduFor Respondent
