FEDERAL CAPITAL DEVELOPMENT AUTHORITY & ANOR v. KUDA ENGINEERING AND CONSTRUCTION COMPANY LIMITED & ORS
(2014) LCN/6990(CA)
RATIO
PRACTICE AND PROCEDURE: WHETHER NON-ENDORSEMENT OF ORIGINATING PROCESSES IS FATAL TO THE JURISDICTION OF THE COURT
I have had the opportunity to read the authorities cited by learned counsel for the two parties in the effect of non-endorsement of the originating processes. Suffice it to say, that some of the authorities of this court and the apex court conflict with one another with some authorities saying it is mere irregularity and others saying that it is a fundamental defect which touches on jurisdiction and as such it renders the originating summons which is of course the initiating process, incompetent, null and void. In fact in a more recent case of MV “Arabella” v. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182, the Supreme Court per Ogbuagu, JSC had this to say at page 207.
“It is clear that the provisions of Section 97 of the Sherriff and Civil Process Act are couched in mandatory terms. Any service of writ without the proper endorsement as stipulated under Section 97 is not a mere irregularity but is a fundamental defect that renders the Writ incompetent…..” (Emphasis supplied).
The learned jurist went further to hold that the non-endorsement “is a fundamental defect the effect of which is that it renders such process incompetent as it goes to the competence of the court also goes to the root of the jurisdiction of the court” See also the cases of Odia Investment Company Ltd v. Talabi (1997) 10 NWLR (Pt. 523) 1 especially per Ogundare, JSC at pages 51-52 G-F; NEPA v. Onah (1997) 1 NWLR (Pt. 484) 680; Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt. 109) 250.
At any rate, the present catchphrase of the superior courts nowadays is the call upon all courts to ensure doing justice to the parties without recourse to technicality. I think it will be relevant to bear in mind that despite being aware of the defect in the service of the originating summons due to want of endorsement, the appellant still decided to take steps and have appeared in the suit. I am inclined to agree with the learned trial judge’s view that steps were taken by the appellant. The writ is competent and therefore he had jurisdiction.
This is more so, in view of the fact that the appellants did not raise the issue of the alleged defect at a preliminary stage, for instance, by way of preliminary objection challenging the competence of the Writ of Summons and Statement of Claims but also they never raised that issue except at the stage of Address by counsel. From the totality of the foregoing, I hold the view that the non-endorsement of the amended processes did not rob the trial court of its jurisdiction over the suit of the 1st and 2nd Respondents in view of the surrounding circumstance of the case. Per Amiru Sanusi, J.C.A.
EVIDENCE: EFFECT OF AN UNCHALLENGED EXPERT WITNESS EVIDENCE
It was further contended that expert evidence which remains unchallenged should be accepted and acted upon unless there is any good reason to reject or refuse to act on it.
There is nothing before this court to show that the valuation report was made in contravention of the FCT Laws or made in anticipation or contemplation of court action/proceedings.
The said Valuation Reports which are found at pages 259-279 of the Records constitute, to my mind, a detailed report by an expert witness. It has been held in several authorities that the opinion of an expert is always necessary where the expert can furnish the court with scientific, forensic or other information of a technical nature which is very much or even likely to be outside the experience or knowledge of the Judge. See the case of A.G. Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1
In this instant case, PW3 was called as an expert witness to testify in court and he was subjected to rigorous cross examination as to his qualifications, experience etc, and the credibility of his opinion. His testimony was not discredited at all by the Appellants.
I therefore align myself with the submissions of the learned counsel for the 1st and 2nd Respondents, that the Appellants never discredited the said Exhibits and also never called evidence to rebut or disprove their contents. The appellants are deemed to have admitted the contents of the documents and cannot therefore be heard to complain on same. Consequent upon the foregoing, I find that the trial Judge had properly exercised jurisdiction over the case of the 1st and 2nd Respondents and I hereby so hold. This first issue is therefore resolved in favour of the 1st and 2nd Respondents and against the Appellants. Per Amiru Sanusi, J.C.A.
PRACTICE AND PROCEDURE: NON-COMPLIANCE WITH REQUIREMENTS OF THE LAW
This argument to my mind falls short of the requirement of the provisions of Section 44 (d) of the Land Use Act which provides that:
“Any notice required by this Act to be served on any person shall be effectively served on him” (d) In the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered or principal office or sending it in a prepaid registered letter addressed to the secretary or clerk of the company or body at that office.”
In the case of CRUTECH v. OBETAN (2011) 15 NWLR (Pt. 1271) 588, it was held that: “Where a statute provides for a particular method of doing something or performing a duty which is regulated by the statute, that method and no other must be the one to be adopted. Thus, if a law requires the fulfillment of a pre-condition before a particular act or action, substantive or procedural is to be done or taken, non fulfillment of the pre-condition or compliance therewith, will be prejudicial to the defaulting party.”
In the instant case therefore, the submissions of the Appellants as to their mode of service are not in tandem with the provisions of Section 44(d) of the Land Use Act. Also, in the case of Ononuju v. A.G. Anambra State (2009) 10 NWLR (Pt. 1148) 182 at 221, the Supreme Court, per Onnoghen, J.S.C. held that:
“A publication in the Gazette of a notice of revocation without personal service of same on the persons concerned does not make the acquisition/revocation valid. In any event, if it were the intention of the Legislature that publication in the government gazette satisfies the statutory mode of service of notice of revocation to owners and holders of rights of occupancy sought to be revoked thereby, it would have stated so in no uncertain terms….” Per Amiru Sanusi, J.C.A.
