SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED v. ANTHONY ONYIRIUKA & ORS (2016)

SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED v. ANTHONY ONYIRIUKA & ORS

(2016)LCN/8343(CA)

In The Court of Appeal of Nigeria

On Monday, the 21st day of March, 2016

CA/OW/429/2013

RATIO

PRACTICE AND PROCEDURE: WRIT OF SUMMON; THE IMPLICATION OF THE SERVICE OF A WRIT OUT OF JURISDICTION

Service of a writ out of jurisdiction, is not a matter of the Court’s discretion. Not only is it provided for in the said Rules of the Federal High Court which provision must therefore, be obeyed, it is crucial to the prosecution of an action in the Court. This is why, without proper service, it follows without more that no valid appearance, can be entered by the defendant, although a defendant is entitled to and can enter an appearance on protest or a conditional appearance.
I note that even the issuance of the said writ of summons which was not endorsed for service of the defendants outside jurisdiction, was rightly declared by the learned trial Judge, as void. This is because of the mandatory nature of the provisions of Section 97 of the Act which provide as follows:
“Every writ of summons for service out of the State in which it was issued shall, in addition to any endorsement of notice required by law of such State?. have endorsed thereon, a notice to the following effect…… this Summons is to be served out of the State. and in the State of…. “
In the case of Bello v. National Bank of (Nig.) Ltd. (1992) 6 NWLR (Pt. 246) 206 at 217-218 C. A. referred to at page 78 of the records, Achike, JCA (as he then was and of blessed memory), stated inter alia, as follows:
“It is clear that the provisions of Section 97 of the Sheriffs and Civil Process Act are couched in mandatory terms. Any service of a writ without the proper endorsement as stipulated under S. 97 is not a mere irregularity but is a fundamental defect that renders the writ incompetent”See also the case of Nwabueze & Anor. v. Justice Obi-Okoye (1988) 4 NWLR (Pt. 91) 664 (it is also reported in (1988) 10-11 SCNJ 60 also referred to, by the learned trial Judge where it was held inter alia, as follows:
“…. . A condition precedent for the issue of the writ of summons against the defendant in this case, who are resident outside the area of territorial jurisdiction of the High Court of Anambra State and who, again, does not carry on business within that areas of jurisdictions that leave of Court is to be obtained before the writ is issued-leave to issue writ which is to be served out of the jurisdiction is not a matter of course and the application for leave is not a mere irregularity. In the instant case, since leave was not first obtained before the writ was issued, the writ of summons has been issued without due process of law; and accordingly, has to be set aside for being null and void.”
In other words, it was held that where a defendant is outside jurisdiction, no writ for service out of jurisdiction can be issued except by leave of the Court. That the issue of writ of summons and the service of the same on the defendant are conditions precedent, for the exercise of a Court’s jurisdiction over the defendant.” PER. PETER OLABISI IGE, J.C.A.

PRACTICE AND PROCEDURE: WRIT OF SUMMON; STATUTORY PROVISION ON WHAT A CLAIMANT WISHING TO ISSUE WRIT OF SUMMON ON THE DEFENDANT OUTSIDE THE STATE MUST FIRST OBTAIN

In any event Sections 96-99 of the Sheriff and Civil Process Act make it mandatory that a Claimant wishing to issue and serve Writ of Summons on a Defendant outside the State in which the Federal High Court is located must first obtain the leave of the Federal High Court where the Suit is instituted and must also seek permission or leave to serve the writ in another State. The case of OWNERS OF M.V. ARABELLA v. NIGERIAN AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (Pt. 1097) 182 at 206-208 is very much applicable to the Suit or action herein. The learned trial Judge was therefore in error when he said that the objection brought pursuant to Federal High Court Rules of 2009 cannot be expected to void or nullify a writ filed pursuant to the 1972 Rules of the Federal High Court which the trial Judge erroneously opined gave rise to decision in M.V. Arabella. PER. PETER OLABISI IGE, J.C.A.

COURT: JUDICIAL PRECEDENT; THE OBLIGATION OF THE LOWER COURT TO BE BOUND BY THE DECISION OF THE SUPREME COURT
The Lower Court in this matter was and is under obligation to apply and rely on the decision of the Supreme Court in OWNERS OF M. V. ARABELLA supra. It does not lie in the mouth of the Respondents to contend as they did albeit erroneously that the ARABELLA’S case was decided per incuriam. It is to say the least outlandish. No Court below the Supreme Court can refuse to be bound by the Supreme Court’s decision on the ground that it was reached per incuriam. See the case of CYRIL O. OSAKWE v. FCE (TECHNICAL) ASABA (2010) 5 SCM 185 at 204 A-C per OGBUAGU, JSC who held:
“That in the hierarchy of Courts, the lower Court, is bound by the decision of the higher Court. In fact, in the case of Attorney-General Ogun State 4 Anor. v. Egenti (1986) 3 NWLR (Pt. 28) 265 @ 272-273, it was held that it is not for a lower Court, to question or say that a decision of the higher Court, was reached per incuriam. That that is a privilege of that higher Court if after reconsidering its former decision it is satisfied that the previous decision had been reached per incuriam. That the doctrine of stare decisis is a well settled principle of judicial policy. Thus, while it is open for a lower Court to depart from its own decisions reached per incuriam, the lower Courts cannot refuse to be bound by decisions of higher Courts even if reached per incuriam.” PER. PETER OLABISI IGE, J.C.A.

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Appellant(s)

AND

1. ANTHONY ONYIRIUKA
2. CHIEF OBODO ODUNZE
3. FRANCIS UWALAKA
4. JONATHAN OHAYI Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an Interlocutory appeal against the Ruling of the Federal High Court, Owerri Division. Contained in the decision of Hon. Justice O. O. Oguntoyinbo in Suit PHC/OW/CS/29/2004 delivered on the 6th day of December, 2013.

The Respondents had by Writ of Summons issued out of the said Court on 25th day of May 2004 claimed against the Appellant as follows:
“The sum of N53,252,665.00 being compensation payable by the defendant to the Plaintiffs for the continuous occupation till date of 3.5 Hectares of Land of the Plaintiffs situate and lying at Assah North Location Assah Ohaji/Egbema Local Government Area of Imo State which you acquired and now Surveyed and started operation on the Land since August 1998, resulting in the destruction and degradation of Economic Trees, Cash Crops, Food Crops, Sporting Rights and Shrines and Graves on the said Land without payment of the said compensation despite repeated demands and despite the fact that the defendant acknowledged the Claim since 1999 and promised to review the Claim.
PARTICULARS OF CLAIM
i) Economic Tress

? N14,650,000.00
ii) Food/Cash Crops ? N18,850,000.00
iii) Sporting Rights ? N9,400,000.00
iv) Shrines and Graves – N10,352,665.00
N53,252,665.00

The Writ of Summons was accompanied by Statement of Claim which was amended pursuant to the Order of Lower Court on 11th day of May 2012 increasing the damages (Special and General) claimed to N453,252,665.00.

The Appellant as Defendant entered a conditional Appearance in the matter on 2004 and thereafter filed Statement of Defence dated 7th day of March, 2005 on 8th day of March, 2005. The said Statement of Defence was amended and two further amendments were made to the said Statement of Defence by the Appellant. On 22nd day of June, 2012 the Appellant also filed a FURTHER AMENDED STATEMENT OF DEFENCE TO SECOND AMENDED STATEMENT OF CLAIM pursuant to the Order of Lower Court made in that behalf on 11th day of May, 2012. See pages 47-49 of the Record of Appeal.

On 3rd day of May 2013 the Appellant filed a NOTICE OF PRELIMINARY OBJECTION dated same date. The said Notice of Preliminary Objection reads thus:
“TAKE NOTICE that before the hearing of this Matter

fixed for the 19th day of June, 2013. Counsel on behalf of the Defendant/Applicant shall raise the following Preliminary Objection, notice whereof is hereby given to the Plaintiffs/Respondents, as follows:
1. The Plaintiff’s Suit filed herein is incompetent on account of the Plaintiffs’ failure to fulfill conditions precedent to the exercise of the jurisdiction of the Honourable Court.
2. The Writ of Summons was issued at the Federal High Court Registry, Owerri, Imo State and served on the Defendant in Port Harcourt, Rivers State, a place outside the jurisdiction of the Federal High Court sitting in Owerri, Imo State, without with the mandatory provisions of Sections 96 and 97 of the Sheriffs and Civil Process Act Cap. S.6 Laws of the Federation 2004.
3. That consequent upon the aforesaid failure on the part of the Plaintiffs/Respondents, the Honourable Court has no jurisdiction to entertain this Suit and the said Suit should be struck out.”
The grounds upon which the objection is based are:
“(i) The Writ of Summons was issued at the Federal High Court Registry, Owerri, Imo State and served on the Defendant in Port Harcourt,

Rivers State without the prior leave of this Honourable Court being sought and obtained by the Plaintiffs.
(ii) The Writ of Summons was not endorsed with a notice to the effect that the Summons is to be served out of Imo State and in Rivers State in accordance with the mandatory provision of Section 97 of the Sheriffs and Civil Process Act, Cap. 56 Laws of the Federation 2004.
(iii) Consequent upon the above, the issuance and the service of the Writ of Summons in this Suit is void and ought to be set aside.
(iv) That aforesaid failure on the part of the Plaintiffs being a failure to fulfill the condition precedent for the exercise of the jurisdiction of the Honourable Court goes to the issue of the jurisdiction of this Honourable Court to entertain this Suit.
(v) That jurisdiction, as a fundamental issue should be determined quia timet and be raised as a preliminary point.
(vi) That the Honourable Court has inherent jurisdiction to entertain and determine quia timet this preliminary objection.”

The Objection was duly heard by the trial Court and a considered Ruling was delivered on 6th day of December, 2013 wherein the trial Judge

said:
“I have carefully gone through the Written Arguments and oral adumbration of Counsel in this matter and it is the opinion of this Court that the Preliminary Objection was not well thought out.
The Objection brought pursuant to the Federal High Court Rules of 2009 can definitely not be expected to void or nullify a Writ filed pursuant to the 1972 Rules of the Federal High Court which gave rise to the decision in M. V. Arabella.
See: BROAD BANK OF NIGERIA LTD. v. ALHAJI S. OLAYIWOLA & SONS (2005) 1 SC (Pt. 2) P. 1 where it was held that failure to endorse a Writ to be served out of jurisdiction whether renders the Writ incompetent that “the Sheriff and Civil Process Act prescribes and demands that a Writ of proposed for service out of the Court shall in addition to any other endorsement be endorsed to be served out of the State. A careful examination of the prescription of the Act shows that a Writ to be served out of jurisdiction which does not have such endorsement is irregular procedurally speaking but now a day’s Courts are shying away from over reliance on mere technicalities.
It is in the light of the foregoing and bearing in

mind the age of the Writ in Court that was filed on 5th May, 2004 that this Honourable Court will refuse to strike out this Writ and insist that the Court has jurisdictional competence once the Writ is endorsed.
I also agree with the argument of the learned Counsel to the Plaintiffs/Respondents in its totality. The 2 Issues sought to be determined by the Defendant/Applicant and the lone issue of the Plaintiffs/Respondent are hereby resolved in favour of the Plaintiffs/Respondents.
The Court hereby Orders that the Writ of Summons filed on the 5th of May, 2004 be set aside and an endorsed Writ be filed in respect of this matter before the next adjourned date. This Honourable Court not willing to over rely on technicalities holds that mere endorsement of the said Writ will suffice and that the competence of the Court in this Suit is not in any way compromised. The Preliminary Objection fails in all its entirety and is hereby refused.
That is the Ruling of this Honourable Court. ”

The Appellant was aggrieved with the aforesaid decision and has appealed to this Court vide her Notice and Grounds of Appeal dated and filed on the 18th day of

December, 2013 containing seven grounds of appeal which with their particulars are as follows:
“3 GROUNDS OF APPEAL
(i) ERROR IN LAW
The learned trial Judge erred in law in failing to strike out the Plaintiffs/Respondents’ Suit for being incompetent.
PARTICULARS OF ERROR
(a) The position of the law is that every Writ of Summons for service out of jurisdiction must be endorsed with a notice to the effect that the Summons is to be served out of the issuing State and in the State where service is to be effected. (Section 97 of the Sheriff and Civil Process Act, Cap. 56 Laws of the Federation 2004).
(b) In the Case before the trial Court, it was not in dispute that the Writ of Summons was issued at the Federal High Court Registry, Owerri, Imo State and served on the Defendant in Port Harcourt, Rivers State, without the prior leave of the trial Court being sought and obtained by the Plaintiffs.
(c) It was also not disputed that the Writ of Summons was not endorsed with a notice to the effect that the Summons is to be served out of Imo State and in Rivers State in accordance with the mandatory provision of Section 97 of the Sheriff and

Civil Process Act, Cap. S6 Laws of the Federation 2004.
(d) Consequent upon the aforesaid established failure on the part of the Plaintiffs/Respondents, the trial Court ought to have struck out the Suit for being incompetent. In failing to do so, it erred in law.
(e) The non obtainment of leave prior to the issuance and service of Writ meant for service out-side jurisdiction as well as failure to mark the Writ accordingly as prescribed in Section 97 of the Sheriff and Civil Process Act, Cap. S6 Laws of the Federation 2004 renders the Writ incurably defective.
(f) The competence of an originating process is a pre-requisite for a valid and subsisting claim. Where the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction thereon.
(ii) ERROR IN LAW
The learned trial Judge erred in law when he held:
“The Court hereby orders that the Writ of Summons filed on the 5th of May 2004 be set aside and an endorsed Writ be filed in respect of this matter before the next adjourned date. This Honourable Court not willing to over rely on technicalities holds that mere endorsement of

the said Writ will suffice and that the competence of the Court in this Suit is not in any way compromised. The Preliminary Objection fails in all its entirety and is hereby refused.”
PARTICULARS OF ERROR
(a) The position of the law is that a Writ of Summons is an originating process by means of which actions are commenced. The competence of such process is a pre-requisite for o valid and subsisting claim. Where the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction thereon.
(b) Having ordered that the Writ of Summons be set aside, there was therefore no basis upon which trial Court could proceed to exercise jurisdiction in the matter. In continuing to exercise jurisdiction therein, the learned trial Judge erred in law.
(c) It is trite law that reliance on an objection anchored on a provision of a statute cannot be described as reliance on technicality. See SLB Consortium v. NNPC (2011) 9 NWLR (Pt. 1252) 317 and Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt. 1346) 1.
(d) A Court is not merely entitled but is bound to put an end to proceedings if at any stage and by

any means it becomes manifest that they are incompetent.
(iii) ERROR IN LAW
The trial Judge erred in law in holding:
“The objection brought pursuant to the Federal High Court Rules of 2009 can definitely not be expected to void or nullify a Writ filed pursuant to the 1972 Rules of the Federal High Court which gave rise to the decision in M. V. Arabella.”
PARTICULARS OF ERROR
(a) The law is that if a relief or remedy is provided for by any written law, the Court’s consideration of an application for that relief or remedy cannot be influenced by the particular law under which the application is brought before it.
(b) Again, the law is that procedural law existing of time of the hearing of a case whether at the trial or on appeal, applies to the prosecution and defence of the case. It does not matter whether the procedural law comes into force before or after the cause of action arises or has arisen and whether before or after an appeal is filed or has been filed.
(c) In the instant case, though the objection was not brought under the Federal High Court Rules of 2009 but under the Federal High Court Rules of 2000, the trial

Court’s consideration of the Preliminary Objection ought not to have been influenced by the law under which the objection was brought. In holding otherwise, the trial Court erred in law.
(d) Furthermore, the point at issue, being the issuance and service of the Writ of Summons was one of practice and procedure. Consequently, the trial Court was wrong in holding that the Writ of Summons could not be nullified by the procedural law existing at the time of the hearing of the Case before it.
(iv) ERROR IN LAW
The learned trial Judge erred in law when having set aside the Writ of Summons, sought to sustain the Suit instead of striking out same.
PARTICULARS OF ERROR
(a) Upon the Order of the trial Court setting aside the said Writ of Summons, there was no longer a valid and subsisting claim before the trial Court. The proper order thereafter should have been an order striking out the matter.
(b) In attempting to sustain the Suit, the trial Court acted in the absence of jurisdiction and thereby erred in law.
(v) ERROR IN LAW
The learned trial Judge erred in law when he held:
“It is in the light of the foregoing and bearing

in mind the age of the Writ in Court that was filed on 5th May 2004 that this Honourable Court will refuse to strike out this Writ and insist that the Court has jurisdictional competence once the Writ is endorsed. ”
PARTICULARS OF ERROR
(a) The law is that the issue of jurisdiction can be raised at any stage either by the parties or the Court, and decided when the issue is raised.
(b) Furthermore, where a Court lacks jurisdiction, its proceedings (regardless of the stage of the proceedings or the date the Writ was filed) become a nullity.
(c) Consequently, the trial Court ought not to have been swayed by a consideration of when the Writ was filed, but should have proceeded to strike out the Suit for want of jurisdiction.
(vi) ERROR IN LAW
The learned trial Judge erred in law in assuming jurisdiction over the Plaintiffs/Respondents’ claim when the Plaintiffs failed to fulfill conditions precedent to the exercise of the jurisdiction of the trial Court.
PARTICULARS OF ERROR
(a) The Writ of Summons was issued at the Federal High Court Registry, Owerri, Imo State and served on the Defendant in Port Harcourt, Rivers State,

without the prior leave of the trial Court being sought and obtained by the Plaintiffs.
(b) The Writ of Summons was not endorsed with a notice to the effect that the Summons was to be served out of Imo State and in Rivers State in accordance with the mandatory provision of Section 97 of the Sheriff and Civil Process Act, Cap. S6 Laws of the Federation 2004.
(c) On account to the above, the issuance and the service of the Writ of Summons was void and the aforesaid failure on the part of the Plaintiffs, being a failure to fulfill the condition precedent for the exercise of the jurisdiction of the trial Court robbed the Court of its jurisdiction to entertain same.
(vi) The Ruling cannot be supported having regard to the Law.
3a. ADDITIONAL AND FURTHER GROUNDS OF APPEAL may be filed upon obtaining a Certified True Copy of the Ruling and Record of Proceedings of the Lower Court.”

The Appellant’s Brief of Argument was filed on 19th day of December, 2013 dated same date while the Respondent’s Brief of Argument dated 19th day of May, 2014 was filed on 6th day of June, 2014 but deemed properly filed by this Court on 11th day of June, 2014.<br< p=””

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The Appellant filed Appellant’s Reply Brief dated 11th day of June, 2014 on the same date.

When the appeal came up for hearing on 1st February, 2016 the Respondents were not present and were unrepresented. The learned Counsel to the Appellant P. A. Johnmark, Esq., urged the Court to deem the Respondent’s Brief as duly adopted and argued after the Appellant had adopted his Briefs of Argument.

The Appellants distilled two issues for the resolution of this appeal viz:
1. Whether having regard to the position of the Law the learned trial Judge was right in dismissing the appellant’s Preliminary Objection.
2. Whether the trial Court was right when having set aside the Writ of Summons proceeded to direct that an endorsed Writ be filed in respect of the same matter.

The Respondents formulated three Issues for determination namely:
(i) Whether the learned trial Judge was right in dismissing the Appellant’s Preliminary Objection?
(ii) Whether the trial Court was right to set aside the Writ of Summons and at the same time ordered that an endorsed Writ be filed in respect of this matter before next adjourned date?
(iii) Whether

the Appellants Appeal is competent since the Appellants did not obtain leave of the Lower Court or Court of Appeal before Appeal?

Now the Respondents have alleged that the Appellant filed this appeal without obtaining the Leave of trial Court or this Court. The provisions of Order 10 of the Court of Appeal Rules 2011 inure for the benefit of a Respondent who believes that he has vital objection that can terminate an appeal in limine without going into or determining it on the merit to file a Notice of Preliminary Objection Notice of which he must give to the Appellant of least three days before the date fixed for hearing of the appeal. The purpose of such objection is against the hearing of the appeal. See:
1. B.A.S.F. NIG. LTD. v. FAITH ENTERPRISES LTD. (2010) 1 SCM 41 at 65 C-D PER ADELEKE, JSC.
2. LAFIA LOCAL GOVERNMENT v. THE EXECUTIVE GOVERNOR NASARAWA STATE & ORS. (2012) 11 NWLR (Pt. 1328) 94 AT 124 D-F Per RHODES-VIVOUR, JSC who said:
“A Preliminary Objection can be taken against the hearing of an appeal and not against the competence of the Brief of a party to the appeal.
The purpose of a Preliminary Objection is to contend

that the appeal is fundamentally defective or incompetent. If it succeeds, the hearing of the appeal abates.”

A Notice of Appeal is the foundation of any appeal and any defect in the same will vitiate the appeal. The Preliminary Objection raised by the Respondents borders on the jurisdiction of this Court. The Law is trite that when an Appellate Court is faced with a Notice of Preliminary Objection attacking the competence of an appeal, this Court will do well to first determine the objection. See, OWELLE ROCHAS OKOROCHA v. PDP & ORS. (2014) 1 SCM 16 at 185 per OGUNBIYI, JSC.
And quite recently the Supreme Court reiterated the firm position on jurisdiction in the case of BARRISTER ORKER JEV & ANOR. v. SEKAVDZUA IYOTYOM & ORS. (2014) 8 SCM 131 at 151 E where My Lord Okoro, JSC succinctly put it thus:
“Let me quickly add here that a Preliminary Objection which borders on jurisdiction cannot be brushed aside by the Court but must be considered by the Court regardless of the manner in which it was raised. Such issue, I must say can be raised for the first time in this Court with or without Leave. See: Nnonyen v. Anyiechie (2015) ALL FWLR

CPL 253, 604.”

The Argument on the competence of the appeal herein can be found on pages 13-15 of the Respondent’s Brief of Argument paragraph 4.04 thereof.

The learned Counsel to the Respondents E. D. N. UWANDU, Esq. submitted that the appeal is incompetent because the Appellant failed to obtain the Leave of the Lower Court or this Court before the appeal was filed. He relied on Section 14(1) (2) of the Court of Appeal Act contained in 2004 Laws of the Federation of Nigeria. That being an Interlocutory application, Appellant must first obtain Leave of the Lower Court relying on IWEKA v. S.C.O.A. NIG. LTD., (2000) 1 SCNQR 431.

That the appellant failed to obtain the necessary Leave, as required by Section 14 of the Court of Appeal Act. That the decision appeal against is interlocutory and NOT against final decision of the Court. He cited the Case of W. A. ORMONUWA v. NAPOLEON OSHODIN 4 ANOR. (1985) SC 1 at 19 & 20. He urged this Court to dismiss the appeal.

?In Reply to the Preliminary Objection against the hearing of the Appellant’s Appeal, Sonny O. Wogu Esq., for the Appellant contended that the objection is misconceived and that the

arguments of Respondents’ learned Counsel do not represent the Law. That it is only an appeal against an interlocutory decision other than on grounds of Law alone that requires Leave of Court. The Appellant relied on GARUBA v. OMOKHODION (2011) 15 NWLR (Pt. 1269) 145 at 182 D per CHUKWUMA-ENEH, JSC. He also relied on Section 241 (1) of the 1999 Constitution and the cases of:
1. K. T. & Ind. Plc v. The Tug Boat M/V Japane B (2011) 9 NWLR (Pt. 1251) 133.
2. Olateju v. Comm. Land & Housing Kwara State (2010) 14 NWLR (Pt. 1213) 145.

That in the instant case, all the grounds of appeal filed involve questions of Law alone hence the Leave of Lower Court and this Court is not necessary. That the case of IWEKA v. SCOA supra cited by Respondents is not applicable. He urged the Court to dismiss the Preliminary Objection.

A Notice of Appeal or Cross Appeal must be filed within the time frame or period statutorily prescribed by Section 24 of the Court of Appeal Act, 2004 Cap. C36 Laws of the Federation of Nigeria which provides as follows:
“24. (1) Where a person desires to appeal to the Court of Appeal, he shall give Notice of Appeal to

the Court of Appeal or Notice of his Application for Leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of Subsection (2) of this Section that is applicable to the Case.
(2) The periods for the giving of Notice of Appeal or Notice of Application for Leave to appeal are:-
(a) In an Appeal in a Civil Cause or Matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision:
(b) In an Appeal in a Criminal Cause or Matter, ninety days from the date of the decision appealed against.
(3) Where an application for Leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of the Section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this Section.”
The prescription in Section 24(1) of the said

Act is that a person who desires to appeal to this Court shall give Notice of his Appeal or his Application for leave to appeal in the manner directed by the Rules of this Court within the time stipulated by provisions of Subsection 2 of Section 24 of Court of Appeal Act and Court of Appeal Rules 2011.

Furthermore, where leave is required for the validity of any Notice of Appeal, the intending Appellant must first seek for and obtain the requisite leave to make his appeal viable and thus confer jurisdiction on this Court to entertain or adjudicate upon the appeal.
See: BEN ANACHEBE ESQ., v. KINGSLEY IJEOMA (2014) 10 SCM 62 at 79 H to 80 A per OGUNBIYI, JSC who said:
“This is obvious for the reason that the periods within which a party can appeal in our Courts are prescriptions of Statutes, Leave to appeal also where necessary, is a requirement of the Constitution. A party if desirous, ought to lodge his appeal within statutory period allowed and exception is unless the time to do so has been extended. See Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt. 498) 550 at 557-558.
It is also trite and held by this Court in

plethora of cases that where Leave is necessary before an appeal can be validly filed, it ought to be applied for and obtained and notice of appeal filed within the statutory period.”
It is thus clear that where leave is required, failure to obtain leave is fatal to the appeal. It is a condition precedent to the exercise of jurisdiction by this Court. See: G. N. NWAOLISAH v. PASCAL NWABUFOR (2011) 14 NWLR (Pt. 1268) 600 at 624 G-H to 625 A per ADEKEYE, JSC who held:
Leave of Court where it is required is a condition precedent to the exercise of the right to appeal. This failure to obtain Leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court. Hence an appeal from the Court of Appeal to the Supreme Court on grounds other than of law alone is incompetent and invalid unless Leave of either the Court of Appeal or the Supreme Court is first sought and obtained.
Nalsa & Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt. 212) pg. 652; S.P.D.C. (Nig.) Ltd. v. Katad (Nig.) Ltd. (2006) 1 NWLR (Pt. 960) pg 198; Nyambi v. Osadim (1997) 2 NWLR (Pt. 485) pg. 1; Olanrewaju v. Ogunleye (1997) 3

NWLR (Pt. 485) pg. 12.”
See also CHIEF I. EMENIKE v. PDP & ORS. (2012) 12 NWLR (Pt. 1315) 556 at 595 E-F per MOHAMMED, JSC.
I have hereinbefore in this Judgment reproduced in full the seven (7) Grounds of Appeal filed by the Appellant vis–vis the Ruling of the Federal High Court delivered on 6th day of December, 2013 part of which I have also quoted in this Judgment. I have also examined the Appellant’s Notice of Preliminary Objection and all the processes filed by the Respondents and Appellants in the Suit.
I am of the firm view that a close examination of the said Notice and Grounds of Appeal reveal they are not of Law alone and since the said grounds contained mixed Law and facts, the Appellant has no right as contended by her to appeal as of right without the leave of Court under Section 241 of the 1999. Constitution of Nigeria. The Appellant is mistaken to think that it was unnecessary for her to obtain the leave of the Lower Court or this Court. See Sections 14 and 24 of the Court of Appeal Act 2004 Cap C36 Laws of the Federation of Nigeria.
?As the Appellant has failed to comply with the relevant provisions of the Court

of Appeal Act and the Constitution of the Federal Republic of Nigeria to first seek and obtain leave to appeal the Interlocutory Ruling now subject of this appeal, this Court is devoid of jurisdiction to entertain or hear the appeal due to the said failure on the part of Appellant to obtain leave to appeal the Ruling of Oguntoyimbo, J. The Notice of Appeal and Grounds of Appeal are hereby adjudged incompetent.See: (1) NONYE IWUNZE v. THE FEDERAL REPUBLIC OF NIGERIA (2014) 6 NWLR (Pt. 1404) 500 AT 596 D-E where the Apex Court in the land per RHODES-VIVOUR, JSC had this to say:
“The Constitution confers on the Court of Appeal jurisdiction to hear and determine Appeals. The jurisdiction is statutory and also controlled by Rules of Court, the Court of Appeal would lack jurisdiction to hear an appeal if an Appellant fails to comply with statutory provisions or the relevant Rules of the Court.”
(2) HON. ZAKAWANU I. GARUBA & ORS. v. HON. EHI BRIGHT OMOKHODION & ORS. (2011) 15 NWLR (Pt. 1269) 145 AT 182 PER CHUKWUMA-ENEH. JSC who said:
“Finally, it has been argued in this matter that this Appeal has been struck out by the Lower Court for

failing to seek and obtain leave of Court before filing the Appeal as prescribed by Section 242 of the 1999 Constitution as amended having raised grounds of mixed law and facts therein. It is also common grounds that the trial Court’s directive to deal first with the Preliminary Objections amounts to an interlocutory order based on the exercise of its discretion. It is trite law that an Appeal against an interlocutory decision other than on grounds of law requires leave of Court. The provisions of Section 241(1) and 242 (supra) have clearly set out when appeals will be presented as of right or with leave respectively of the Federal High Court or State High Court or the Court of Appeal as the case may be. And so it is settled law that right to appeal is Statutory.”

In the result, this appeal which is founded on the Notice and Grounds of Appeal dated the 18th day of December, 2013 filed same date which have been adjudged incompetent is hereby struck out.

However since this Court is a penultimate Court I think I can still proceed to express my view on the merit of the appeal.
See: ALHAJI JIBRIN ISAH v. INEC & ORS. (2014) 12 SCM (Pt. 2) 297 at

335 G-I to 336 A per RHODES-VIVOUR, JSC who said:
“It is safe to say that there are two schools of thought on this issue. The first is that if the penultimate Court finds that it has no jurisdiction over an appeal or that the trial Court was right to decline jurisdiction it should say so and proceed to give a decision on the merits. See: Brawal Shipping (Nig.) Ltd., v. F. I. Onwadike Co. Ltd., (2000) 6 SCNJ 508; Ojogbu v. Njokonma (1991) 9 NWLR (Pt. 214p. 126). The second is that if the Court of Appeal is of the view that a sole issue, e.g. jurisdiction disposes of the appeal, there would be no need for the Court to consider other issues.
See: 7UP Bottling Co. v. Abiola & Sons (2001) 13 NWLR (Pt. 730) p. 469, (2001) 8 SCM, I; Okonji v. Njokonma (1991) 1 SCNLR P. 372; Kotoye v. CBN 1989 1 NWLR (Pt. 96) p. 419.
There is no sanction known to law for which ever school of thought a penultimate Court decides to follow, but following the first school of thought is to be desired but there are exceptions. In the first place if the Court of Appeal does not avail the Supreme Court with a judgment on the merits, it may unwittingly amount to a denial of

fair hearing and may occasion a miscarriage of justice. The Supreme Court would have to send the Case back to the Court of Appeal for a hearing on the merits if that Court was wrong on jurisdiction and this would be at great cost and waste of judicial time.”

The Appellant formulated two Issues for determination of the appeal viz:
1. Whether having regard to the position of the Law, the learned trial Judge was right in dismissing the Appellant’s Preliminary Objection.
2. Whether the trial Court was right when having set aside the Writ of Summons, proceeded to direct that an endorsed Writ be filed in respect of the same matter.

The Respondents also distilled two Issue for determination of the appeal namely:
1. Whether the learned trial Judge was right in dismissing the Appellant’s Preliminary Objection?
2. Whether the trial Court was right to set aside the Writ of Summons and at the same ordered that an endorsed Writ be filed in respect of this matter before next adjourned date?

?I am of the solemn view that the Issues raised by the Respondents are in tandem with the two Issues formulated by the Appellants. The appeal will be

considered on the two Issues nominated by the Appellants and the two Issues will be taken together.
1. Whether having regard to the position of the Law, the learned trial Judge was right in dismissing the Appellant’s Preliminary Objection.
2. Whether the trial Court was right when having set aside the Writ of Summons, proceeded to direct that an endorsed Writ be filed in respect of the same matter.

In his submissions under Issue 1, the learned Counsel to the Appellant Sonny O. Wogu, Esq., submitted that the position of the Law on issuance and service of Writ of Summons out of jurisdiction has been stated in many Cases including the Supreme Court Case of OWNERS OF M.V. ARABELLA v. N.A.I.C. (2008) 11 NWLR (Pt. 1097) 182 at 207 A-D and 208 B-E to the effect that leave of the Court must be sought and obtained to Issue and serve a Writ of Summons out of jurisdiction and such Writ of Summons to be served out of the jurisdiction of issuing State and in the State where service is to be effected must be endorsed as such. Cases of BELLO v. N.N.N. LTD. (1992) 6 NWLR (Pt. 246) 206 at 217-218 E-H and NWABUEZE & ANOR. v. JUSTICE OBI OKOYE

(1988) 4 NWLR (Pt. 91) 664 were cited and relied upon by Appellant.

That there was no dispute in this suit that the Writ of Summons was issued at the Federal High Court Registry, Owerri, Imo State and served on the Appellant in Port Harcourt, Rivers State without prior leave of the Court being sought and obtained by the Respondents. That this did not meet the condition precedent stipulated by Section 97 of the Sheriff and Civil Process Act Cap. S6 LFN 2004. That where this is done, the Writ so issued without due process had to be set aside for being null and void. Reliance was placed on the case placed on the case of OWNERS OF M.V. ARABELLA v. NAIC Supra. That the effect of a VOID WRIT is that it deprives the Court jurisdiction to entertain the matter. That it is of no moment that the defendant to such a void Writ had taken some steps in the proceedings.

That the observation and findings of the trial Court on pages 82-83 that the Objection was filed pursuant to 2009 Rules of Federal High Court and not 1972 under which ARABELLA’S case was decided was erroneous. He relied on the case of Agbetoba v. L.S.E.C.E. (1991) 4 NWLR (Pt. 188) 664 at 687 A.<br< p=””

</br<

That contrary to the position of the trial Court, the Appellant’s Objection was brought pursuant to Federal High Court Rules of 2000.

That where an originating process fails to confirm and comply with the relevant Law, the Court cannot assume jurisdiction. That once it becomes manifest that an action is incompetent, the Court is bound to put an end to the proceedings. He relied on BRAITHWAITE v. SKYE BANK PLC. (2013) 5 NWLR (Pt. 1346) 1. That objection anchored on the provision of Statute cannot be described as reliance on technicality. That the Lower Court simply ignore the Supreme Court decision on Section 96 and 97 of the Sheriff and Civil Process Act Cap S6 LFN 2004 in ARABELLA’S case in breach of doctrine of stares decisis. He relied on the case of OSAKWE v. FACE ASABA (2010) 10 NWLR (Pt. 1201) 1 at 34-36 urged the Court to resolve Issue 1 in favour of Appellant.

On Issue 2, the learned Counsel to the Appellant stated that having set aside the Writ of Summons, the trial Court was wrong in proceeding to direct that an endorsed Writ be filed in respect of the same matter. He urged the Court to allow the appeal and strike out the Suit for want of

jurisdiction.

The learned counsel to the Respondents E. N. D. UWANDU, Esq., argued the two Issues together in reply.

He started by stating that the Appellant’s Objection was based on non compliance with respect to Issuance and Service of Writ of Summons out of jurisdiction. That the Objection was brought under the Federal High Court Rules of 2000 and Section 97 of Sheriff and Civil Process Act Cap 56 LFN 2004. He submitted that the Issuance and the Service of the Writ in question was in Order because the whole Federation is within the jurisdiction of Federal High Court relying on Order 6 Rule 5 Federal High Court Rules 2000. That Writ of Summons could be issued subject to the provisions of the said Rules without the leave of Court or a Judge in Chambers pursuant to Order 6 Rule 12 Federal High Court Rules 2000. That the combined interpretation of these two rules means that outside jurisdiction means jurisdiction outside the Federation of Nigeria. He relied on Order 3 Rule 31 of the Federal High Court Rules 2000. That Sections 96 and 97 of the Sheriff and Civil Process Act cannot apply to Federal High Court because according to learned Counsel Federal

High Court Rules says:
“The whole federation is within the jurisdiction of the Court and defines the Court as “Federal High Court.”

He submitted that the case of OWNER OF M.V. v. ARABELLA v. N.A.I.C. Supra was decided per incuriam that is according to him the Supreme Court did not advert its mind, to the relevant Rules of the Federal High Court which were in existences before the said date. He relied on the case of ADEGOKE MOTORS LTD. v. ADESANYA (1989) 3 NWLP (Pt. 109) P. 250 at 265 to contend that the issuance of the Writ of Summons in the instant case is valid according to the Law and Rules of the Federal High Court. That the issuing of Writ of Summons and the services are two different things. That the issuing of Civil Process is the concern of the High Court Law and the High Court Rules while the Service of such process will be referable to the Law and Rules made for the service of such Civil Process of the Court. That assuming he is wrong in his submission then he urged this Court to treat the failure to obtain leave to issue and serve the Writ out of the jurisdiction of the Court in Port Harcourt, a place outside the jurisdiction of the

issuing Court, as mere irregularity which will only make the service of the Writ voidable according to Respondents learned Counsel.

That in such a situation since the Appellant had entered appearance about nine (9) years ago, the Appellant has thereby waived her right to complain thus validating an otherwise invalid service. He relied on Adegoke Motors Ltd. v. Adesanya supra. That any irregularity can be regularized by the endorsement of the Writ of Summons as was ordered by the Lower Court. The learned Counsel to Respondents relied on the cases of:
1. BROAD BANK OF NIGERIA LTD. v. ALHAJI S. OLAYIWOLA & SONS (2005) 1 SC (Pt. 2) page 1.
2. ADEGOKE MOTORS LTD. v. ADESANYA Supra p. 292 A-B.
3. EZOMO v. OYAKHIRE (1981) 1 SC 6.
4. NWABUEZE v. OKOYE (1985) 1 NWLR (Pt. 2) 195.

That in those cases the services were declared valid. That endorsement of the Writ for service out of jurisdiction is an administrative duty. That in this case the Appellant has filed Statement of Defence and amended same twice. That the facts and circumstances of this case supported the position taken by the Lower Court.

?The Respondents submitted that

the Appellant has submitted herself to the jurisdiction of the Federal High Court Owerri by all the various steps taken by her to defend the action.

The learned Counsel to the Respondents had submitted that Sections 96 and 97 of the Sheriff and Civil Process Act Cap 56 FN 2004 are not applicable to the Federal High Court because according to him the whole Federation constitutes the jurisdiction of the Federal High Court. With considerable respect to the learned Counsel to the Respondents the submission is profoundly rooted in gross misconception of the applicability of the Sheriff and Civil Process Act. Firstly of the title to the Sheriff and Civil Process Act which provides:
“An Act to make provision for the appointment and duties of Sheriffs, the enforcement of Judgments and Orders, and the service and execution of Civil Process of Courts throughout Nigeria.”
makes abundantly clear that Sheriff and Civil Process Act is applicable to all High Courts and Magistrate Courts established by the Constitution and National Assembly of Nigeria. Secondly “Court” is defined under Section 2 of the Act to include a High Court and a Magistrate’s Court.<br< p=””

</br<

Thirdly by Sections 96, 97, 98 and 99 of the Sheriff and Civil Process Act, the Federal High Court is included in the application of Sheriff and Civil Process Act. They provide:
“96(1) A Writ of Summons issued out of or requiring the defendant to appear at any Court of State or the Capital Territory may be served on the defendant in any other State or the Capital Territory.
(2) Such service may, subject to any rules of Court which may be made under this Act be effected in the same manner as if the writ was served on the defendant in the State or the Capital Territory in which the writ was issued.
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 case may be). ”
98. A writ of summons for service out of the State or the Capital Territory

in which it was issued may be issued as a concurrent writ with one for service within such State or the Capital Territory and shall in that case be marked as concurrent.
99. The period specified in a writ of summons for service under this part as the period within which a defendant is required to answer before the Court to the writ of summons shall not be less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of the Court within which the writ of summons is issued, not less than that longer period.”
I will also call in aid the decision of this Court in the Case of TOUTON S. A. v. GRIMALDI COMPAGNIA DI NAVIGA ZIONI S.P.A. 4 ORS. (2011) 4 NWLR (Pt. 1236) 1 at 18 H to 19 A-E. Where my Lord OKORO, JCA (now JSC) pungently put it thus:
“When I first read the brief of the appellant. I came across the argument that the Sheriffs and Civil Process Act does not apply to the Federal High Court. I thought then, I have a Herculean task in trying to resolve the matter in view of the fact that the respondents maintained a contrary view. However, that task has been made simple, as the learned counsel

for the appellant has made a recant of his position as contained in his reply brief. I would have been surprised if he still maintained his earlier position in the matter. In Section 19(1) of the Sheriffs and Civil Process Act (henceforth referred to as SCPA in this Judgment), which is the interpretation section, Court is defined as “includes a High Court and Magistrate Court”. As was rightly held by the Court below, the Federal High Court is no doubt, a High Court. The appellation “Federal” does not make the Court any other Court than a High Court. Since Section 97 of SCPA applies to all High Courts, it also applies to the Federal High Court, moreso, as the Interpretation section did not qualify the High Court as “State” or any other qualification. As was held by the Supreme Court in Owners of the M.V. “Arabella” v. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182, Section 97 of the SCPA, and indeed any other section, has nothing to do with the coverage of the jurisdiction of the Federal High Court which is nationwide. Section 97 and in fact S.99 also apply to the Federal High Court as there is nothing to suggest to the contrary. I so

hold. See Section 64(2) (b) of the Federal High Court Act, Cap. F12 LFN 2004. I shall return to this in the course of this judgment.”

The Respondents deluded themselves into false belief that because Federal High Court’s jurisdiction encompasses the whole Federation of Nigeria, it did not need the leave of the Federal High Court of Owerri to be first sought and obtained before a Writ of Summons could issue and to obtain permission to serve the Defendant/Appellant in Port Harcourt. They even have the temerity to contend that failure to obtain leave either for the Writ to Issue or permission to serve in Port Harcourt, a place outside the jurisdiction of Federal High Court Owerri is a mere irregularity. This argument equally is misplaced and has no support in Law. See once again the holding of this Court per Okoro, JCA (now JSC) in the case of: TOUTON SA v. G.C.D.Z. SPA & ORS. Supra pages 22 D-H to 23 A-C wherein it was held:
By Order 6 Rule 12(1) of the Federal High Court (Civil Procedure) Rules – 2000
“No writ which, or notice of which is to be served out of the jurisdiction shall be issue without the leave of Court.”
Generally, a

plaintiff desirous of issuing a writ for service outside the jurisdiction of the Court files an ex-parte application seeking for leave to issue the said writ and attaches an unsigned copy of the writ to the affidavit in support of the application. Thereafter the plaintiff can issue same subsequent to obtaining the required leave to do so. Anything short of this renders the writ incompetent ab initio. For the avoidance of doubt, any writ of summons meant for service outside the jurisdiction of the Court which is issued before or without leave is null and void. See Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250. The problem with the appellant in this matter is his position that there is nothing like service out of jurisdiction in this matter. I have dealt with this matter in the first issue and I do not intend to repeat it here. Maybe for emphasis, let me state it again that where the writ is one for service outside jurisdiction, issuance and service are regulated by Order 6 Rule 12 of the Federal High Court (Civil Procedure) Rules, 2000 and Section 97 and 99 Sheriffs and Civil Process Act Cap. 407 LFN 1990. Though the issuance and service of a Writ

are interrelated, they are quite distinct and both must be fulfilled for a Court of law to assume jurisdiction over the matter. See NEPA v. Onah (1997) 1 NWLR (Pt. 484) 680; Nwabueze v. Onah (1997) 1 NWLR (Pt. 484) 680: Nwabueze v. Obi-Okoye (supra).
It is quite trite that the provisions of rules of Court cannot override that of a statute on a subject matter or an issue.
Invariably, where there is a conflict between the provisions of a statute and that of Rules of Court, the provisions of the statute shall prevail being superior in status. See: Nwanezie v. Idris (1993) 3 NWLR (Pt. 279) 1 at 16 paras. B. C. it is my view that both the Federal High Court (Civil Procedure) Rules 2000 and the Admiralty Jurisdiction Procedure Rules 1993 are complimentary of each other and must be read together in addition to Sections 96, 97 and 99 or any other section of the Sheriffs and Civil Process Act when considering the issuance and service of process out of Jurisdiction in Admiralty matters.”
The Learned Counsel to the Respondents also has the mien and even the effrontery to submit as follows:
“I submit that the decision in the Case of Owner of MV

ARABELLA v. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (Pt. 1097) was per incuriam, that is, the Court did not advert its mind to the relevant Rules of the Federal High Court which were in existence before the said Case.”
Now the Supreme Court in the case of OWNERS M.V. “ARABELLA” v. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (Pt. 1097) 182 at 206 D-H to 208 A per OGBUAGU, JSC firmly held as follows:
Secondly, and this is also settled, issuance of civil process and service of the same, are distinct though inter-related steps in civil litigation. A writ may be valid while its service, (as in the instant case leading to this appeal, may suffer from some defect. See the case of Adegoke Motors Ltd. v. Dr. Adesanya & Anor. (1989) 3 NWLR (Pt. 109) 250 at 292-296; (1959) 5 SCNJ 80. This is why and this is also settled that where a writ of summons, has been regularity issued without compliance with the Act, what is void, and to be set aside, is the service and not the writ itself. See: Nwabueze & Anor. v. Obi-Okoye (infra).
The appellant in his said brief, having conceded that no leave of Court was sought and

obtained for the service on the respondent of the said writ of summons in spite of the mandatory provisions of Order 10 Rule 14 of the Federal High Court (Civil Procedure) Rules. 1976. This should have been the end of this appeal. What is more, as rightly submitted in the respondent’s brief, neither Section 19 of the Federal High Court Act, nor any other Act, or otherwise, excluded the operation of the Act and Order 10 Rule 14 of the Federal High Court (Civil Procedure) Rules. The provisions of the Act, guide the service of the processes of the Federal High Court as a Court established by the National Assembly. See the case of Union Beverages Ltd. v. Adamite Co. Ltd. (1990) 7 NWLP (Pt. 162) 348 C. A. Service of a writ out of jurisdiction, is not a matter of the Court’s discretion. Not only is it provided for in the said Rules of the Federal High Court which provision must therefore, be obeyed, it is crucial to the prosecution of an action in the Court. This is why, without proper service, it follows without more that no valid appearance, can be entered by the defendant, although a defendant is entitled to and can enter an appearance on protest or a

conditional appearance.
I note that even the issuance of the said writ of summons which was not endorsed for service of the defendants outside jurisdiction, was rightly declared by the learned trial Judge, as void. This is because of the mandatory nature of the provisions of Section 97 of the Act which provide as follows:
“Every writ of summons for service out of the State in which it was issued shall, in addition to any endorsement of notice required by law of such State?. have endorsed thereon, a notice to the following effect…… this Summons is to be served out of the State. and in the State of…. ”
In the case of Bello v. National Bank of (Nig.) Ltd. (1992) 6 NWLR (Pt. 246) 206 at 217-218 C. A. referred to at page 78 of the records, Achike, JCA (as he then was and of blessed memory), stated inter alia, as follows:
“It is clear that the provisions of Section 97 of the Sheriffs and Civil Process Act are couched in mandatory terms. Any service of a writ without the proper endorsement as stipulated under S. 97 is not a mere irregularity but is a fundamental defect that renders the writ incompetent ?”<br< p=””

</br<

(italics mine)
See also the case of Nwabueze & Anor. v. Justice Obi-Okoye (1988) 4 NWLR (Pt. 91) 664 (it is also reported in (1988) 10-11 SCNJ 60 also referred to, by the learned trial Judge where it was held inter alia, as follows:
“…. . A condition precedent for the issue of the writ of summons against the defendant in this case, who are resident outside the area of territorial jurisdiction of the High Court of Anambra State and who, again, does not carry on business within that areas of jurisdictions that leave of Court is to be obtained before the writ is issued-leave to issue writ which is to be served out of the jurisdiction is not a matter of course and the application for leave is not a mere irregularity. In the instant case, since leave was not first obtained before the writ was issued, the writ of summons has been issued without due process of law; and accordingly, has to be set aside for being null and void.”
In other words, it was held that where a defendant is outside jurisdiction, no writ for service out of jurisdiction can be issued except by leave of the Court. That the issue of writ of summons and the service of the same

on the defendant are conditions precedent, for the exercise of a Court’s jurisdiction over the defendant.”
Order 10 Rule 14 of the Federal High Court (Civil Procedure) Rules 1976 which provided that no writ for service out of jurisdiction shall be issued without the leave of the Federal High Court and Order 6 Rule 12(1) of the Federal High Court Rules 2000 are the same. In any event Sections 96-99 of the Sheriff and Civil Process Act make it mandatory that a Claimant wishing to issue and serve Writ of Summons on a Defendant outside the State in which the Federal High Court is located must first obtain the leave of the Federal High Court where the Suit is instituted and must also seek permission or leave to serve the writ in another State. The case of OWNERS OF M.V. ARABELLA v. NIGERIAN AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (Pt. 1097) 182 at 206-208 is very much applicable to the Suit or action herein. The learned trial Judge was therefore in error when he said that the objection brought pursuant to Federal High Court Rules of 2009 cannot be expected to void or nullify a writ filed pursuant to the 1972 Rules of the Federal High Court which the

trial Judge erroneously opined gave rise to decision in M.V. Arabella.
In the case on appeal, the stark reality is that the Respondents did not at all apply for or seek the leave or permission of the Federal High Court for the issuance to serve same out of jurisdiction. The mandatory endorsement required under Section 99 of the Sheriff and Civil Process Act was not endorsed on the said Writ of Summons which is a Statutory Right given to a Defendant to be served out of jurisdiction to have 30 days within which to enter appearance to defend the action upon being served with the Writ that must be issued with the leave of Court.
The case of Broad Bank of Nigeria Ltd. v. Alhaji S. Olayiwola & Sons Ltd. & Anor. (2005) 3 NWLR (Pt. 912) 434 cannot be of any help or assistance to the Respondents. The reasons are not farfetched. In that case the Claimant filed its Writ of Summons and formally by Ex-Parte application prayed the trial Court for leave to issue the Writ and serve same outside the jurisdiction of Lagos State on the Respondents in the action in Osun State.
?The bone of contention was that the Claimant in the action ought first to have

obtained leave before formally filing the Writ of Summons.
The trial Court held that Appellant was wrong that the grant of leave to issue a Writ for Service out of jurisdiction can be obtained before or after the filing of the Writ of Summons provided it is obtained before the service of the Writ itself and that because the Writ was not endorsed for service out of the jurisdiction it was incompetent. There was appeal and cross appeal. The Court of Appeal set aside the Ruling of the High Court. The Appellant’s Appeal to Supreme Court was allowed.
The Lower Court in this matter was and is under obligation to apply and rely on the decision of the Supreme Court in OWNERS OF M. V. ARABELLA supra. It does not lie in the mouth of the Respondents to contend as they did albeit erroneously that the ARABELLA’S case was decided per incuriam. It is to say the least outlandish. No Court below the Supreme Court can refuse to be bound by the Supreme Court’s decision on the ground that it was reached per incuriam. See the case of CYRIL O. OSAKWE v. FCE (TECHNICAL) ASABA (2010) 5 SCM 185 at 204 A-C per OGBUAGU, JSC who held:
“That in the hierarchy of Courts, the

lower Court, is bound by the decision of the higher Court. In fact, in the case of Attorney-General Ogun State 4 Anor. v. Egenti (1986) 3 NWLR (Pt. 28) 265 @ 272-273, it was held that it is not for a lower Court, to question or say that a decision of the higher Court, was reached per incuriam. That that is a privilege of that higher Court if after reconsidering its former decision it is satisfied that the previous decision had been reached per incuriam. That the doctrine of stare decisis is a well settled principle of judicial policy. Thus, while it is open for a lower Court to depart from its own decisions reached per incuriam, the lower Courts cannot refuse to be bound by decisions of higher Courts even if reached per incuriam.”
The Learned trial Judge having found that the Writ of Summons filed by the Respondents on 5th day of May, 2004 should be set aside, has no jurisdiction remaining in him to pronounce or make any further order or give any direction in the case. The trial Judge’s jurisdiction was spent or expended. It is not for any trial Judge to direct endorsement of a Writ of Summons issued in flagrant breach of the Rules of Court and in

particular Sections 96, 97 and 99 of the Sheriff and Civil Process Act, the Writ having been set aside. See the case of AGIP (NIG.) LTD. v. AGIP PETROLI INTERNATIONAL & ORS. (2010) 5 NWLR (Pt. 1187) 348 or 389 H to 396 A-E per Adekeye, JSC who said:
“On the application of the Writ of Summons to the proceedings in the Federal High Court under Order 6 of the Federal High Court Civil Procedure Rules, 2000.
Order 6 Rule 12 (1) stipulates that:
“No writ which, or notice of which, is to be served out of the jurisdiction shall be issued without leave of the Court.”
One of the ex-parte application made before the Federal High Court was for an order to serve the 1st, 3rd and 15th, defendants by substituted means through the Company Secretary of the plaintiff. But the learned trial Judge gave the order suo motu obviously influenced by the averment in the pleadings and relevant facts before the Court that 1st Respondent be served at its registered office in Amsterdam out of the jurisdiction of the Court. The appellant thereby concluded that the leave of the Court was in fact obtained before the issuance and service of the Writ of Summons on the 1st

Respondent. I regard this as a glowing misconception by the appellant as the directive of Court in the circumstance of this case does not tantamount to leave being granted. It is proper that for the appellant to comply with this order and the relevant provisions of Order 6 Rule 12(1) of the Federal High Court Rules, the proper step is to apply for the requisite leave before issuance and service of the Writ of Summons which is to be performed at the Court Registry and to be endorsed thereafter by a Judge. There was no evidence of taking these steps by the appellant on record.
Black’s Law Dictionary, 6th Edition at pg. 591 defines leave of Court as:
“Permission obtained from a Court to take some action.”
The appellant failed to obtain this permission in the prevailing circumstance which is an initiating process.”
I am also not unmindful of Respondents’ argument that Appellant took several steps in the matter hence he has waived his right. Parties cannot by consent or acquiescence confer jurisdiction on the Court where none is available. The fact remains that the Respondents action was not initiated or commenced in accordance with the laid down

procedure and as such it cannot confer jurisdiction on the Court. See: AGIP (NIG.) LTD. v. AGIP PETROLI INTERNATIONAL & ORS. (2010) 5 NWLR (Pt. 1187) 348 at 419 H-A 420 where Adekeye, JSC held:
“More important is that where a Statute or Rule of Court provides for a procedure for the commencement of an action, failure to follow that procedure renders any suit commenced otherwise incompetent. In the Case of Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) pg. 144 at page 221, the Court decided that:
“It is elementary law that a plaintiff in the commencement of an action, must comply strictly with the provisions of the enabling law. He cannot go outside the enabling law for redress.”

It is for the Respondents to take appropriate steps to step up their case if they desire to continue or pursue their cause of action against Appellant.

The Lower Court therefore erred in Law in dismissing the Appellant’s Notice of Preliminary Objection.

The Appellant’s Appeal is meritorious and it is hereby allowed. The Order of the trial Court dismissing the said objection is hereby set aside. In its stead, an Order is hereby made sustaining the Appellant’s Notice

of Preliminary Objection filed on 3rd May, 2013.

The suit of the Respondents namely suit No. FHC/OW/CS/29/2004. ANTHONY ONYIRIUKA & ORS. v. SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LTD., is hereby struck out for incompetence and want of jurisdiction. However having held that this Court lacks jurisdiction to entertain the appeal for failure to obtain leave to appeal the Interlocutory Ruling to this Court, the Appeal is struck out for want of jurisdiction.
No Order as to costs.

ITA GEORGE MBABA, J.C.A.: I had the advantage of reading the draft of the lead judgment, just delivered by my learned brother, PETER OLABISI IGE, JCA. In his usual character, my learned brother has dealt with the pertinent issues, thrown up for consideration, both in the preliminary objection and in the main appeal, succinctly and admirably, in line with the operative statutory laws and decisions of the Apex Court in the matter.

I have nothing to add, as this Court is bound by the decisions of the Supreme Court, expertly researched and found by my learned brother to support his conclusions that –
“The learned trial Court,

having found that the writ of summons filed by the Respondents on 5th of May 2004 should be set aside, had no jurisdiction remaining in him to pronounce or make any order or give direction in the case. The trial judge’s jurisdiction was spent?”

Thus, having found as a fact that the Respondents did not obtain the prerequisite order of Court to issue the writ of summons and serve same on Appellant in Port Harcourt outside the jurisdiction of the issuing Court, the trial Court, by law, lacked power to do anything to save the writ, relying on the fact that the party, to whom the writ was meant, had come to Court, and was the one objecting to the trial, on the grounds of improper issue of the writ of summons. By rules of precedent this Court cannot rule otherwise.
?It is admitted, however, that, ordinarily, it would have been thought reasonable to consider any defect in the service or issuance of a writ as mere irregularity, that should be corrected or deemed regularized by the appearance of the party (Appellant) in Court, having surrendered to the jurisdiction of the Court to object to the issuance of the writ. This reasoning was expressed in the

case of S.P.D.C.N. Ltd v. Registrar of Business Premises, Abia State (2015) LPELR-24285 (CA); (2015) 3 CAR; (2016) NWLR (Pt. 1496) 326, wherein this Court held:
“I am always bothered about the level of mockery the law would be subjected, when a party, who has been served with the processes of Court, comes to the same Court to seek nullification of the service on him of the process, alleging improper issuance/service of process?”
That would amount to pandering to ridiculous level the use of technicalities to frustrate justice. After all, the purpose of complying with the rules of service of process of Court is to make sure that the respondent is served with the said process of Court, before the Court can exercise jurisdiction over him, and appearance of the Respondent in Court appears to satisfy that requirement! See Oseni v. Ologe (2014) LPELR-22919 CA.

We shall continue to wait for the development of the law, so that, as in this case, which had been in Court since 2004, and is now struck out for want of proper issuance of the writ of summons, substantive interest of Justice would be protected. Of course the plaintiff can always come back,

properly, to pursue his case, after the striking out, albert all the waste of precious judicial time and resources!
I abide by the consequential orders.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, PETER OLABISI IGE, JCA, I am in total agreement with his reasoning and conclusions in allowing this Appeal. I also abide by the consequential orders made in this judgment.

Appearances

P. A. Johnmark, Esq.For Appellant

AND

Not statedFor Respondent