ACCESS BANK PLC v. SUNSHINE OIL & CHEMICAL DEV. CO. LTD (2020)

ACCESS BANK PLC v. SUNSHINE OIL & CHEMICAL DEV. CO. LTD

(2020)LCN/14816(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, November 19, 2020

CA/IB/53/2014

RATIO

APPEAL: REQUIREMENT FOR RAISING FRESH ISSUES ON APPEAL

As a new or fresh issue, the leave of the trial Court was required to raise and argue same. See Okolo v. Union Bank of Nigeria Ltd (1998) 2 NWLR (pt.539) 618 and Bhojsons Plc v. Daniel-Kalio (2006) 5 NWLR (pt.973) 330. PER SIMON TSAMMANI, J.C.A.

JURISDICTION: NATURE OF JURISDICTION

In law, jurisdiction is generally regarded as the right of a Court to exercise its powers over a particular subject matter. It also refers to the legal capacity or authority of a Court to adjudicate in respect of a particular suit or res in dispute. In Obi v. INEC & Ors (2007) LPELR – 2166 (SC), Aderemi, JSC defined jurisdiction to mean the legal power or legal authority that enables a Judge to enter into adjudication in a matter before him. See also Emmanuel Onyema & Ors v. Uwaeze Oputa & Anor (1987) LPELR – 2736 (SC) and G & T Investment Ltd v. Witt & Bush Ltd (2011) 8 NWLR (pt.1250) 500 at 538. Thus in A.G; Anambra State v. A.G; Federation (2007) LPELR – 24343 (SC) Muhammad, JSC said:
“…. Infact jurisdiction to a Court of law is equated to blood in a living animal. Jurisdiction is the blood that gives life to the survival of an action in a Court of law without which the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an exercise in futility.”
Jurisdiction is therefore fundamental and a necessary pre-requisite to the survival of any cause or matter before a Court of law. It means therefore that any attempt by a Court to adjudicate over any matter, it has no power or jurisdiction to, will be a futile exercise. Accordingly, the conduct by a Court of any proceeding it has no jurisdiction to do, no matter how well or brilliantly conducted would be a nullity. Such decision and any order derived therefrom, would be a nullity and would be declared to be so on appeal. Thus in Nelson Uzoukwu Nwankwo v. Customary Court, Ndiawa, Arondizuogu & Ors (2009) LPELR – 4589 (CA), My Lord, Kekere-Ekun, JCA (as he then was) held that, where a Court acts without jurisdiction or in excess of its jurisdiction, no amount of liberality can validate its actions. See alsoNNPC & Anor v. Orhiowasele & Ors, Nwankwo v. Yaradua & Ors (2010) 12 NWLR (pt.1209) 518 and Frederick S. Alasia v. Prof. J.D. Okoh & Ors (2011) LPELR – 4175 (CA). Thus, in Agbule v. Warri Refinery & Petrochemical Co. Ltd (2013) 6 NWLR (pt.1350) 318, Rhodes-Vivour, JSC said:
“Jurisdiction is a question of law. It is a threshold issue, very fundamental, the livewire of a suit. Where a Court does not have jurisdiction over a matter before it and it proceeds to hear and determine the matter, the whole proceedings no matter how well decided would amount to a nullity. This is premised on the position of the law that a judgment given without jurisdiction creates no legal obligations. Such a judgment confers no right on any of the parties.” PER SIMON TSAMMANI, J.C.A.

JURISDICTION: WHEN WILL A COURT BE SAID TO HAVE JURISDICTION

Now, when will a Court be said to have jurisdiction? Generally, the jurisdiction of a Court will be donated to it, either by the Constitution, or the Statute that created it. This is because, Courts are creation of either the Constitution or Statute. See Osadebay v. A.G; Bendel State (1991) 1 NWLR (pt.169) 525; Shelim v. Gobang (2009) 12 NWLR (pt.1156) 435; Shodipo v. FRN (2017) LPELR – 42774 (CA) and B.B Apugo & Sons Ltd v. Orthopedic Hospital Management Board (2016) LPELR – 40598 (SC). In Egharevba v. Eribo (2010) 9 NWLR (pt.1199) 422, the Supreme Court, per Adekeye, JSC held that:
“Under the Nigerian Legal System, Courts are set up under the Constitution, Decrees, Acts, Laws and Edicts – they also cloak the Courts with the powers and jurisdiction of adjudication. If the Constitution, Decrees, Act, Laws and Edicts do not grant jurisdiction to a Court or tribunal, the Court and parties cannot by agreement endow it with jurisdiction, as no matter how well and properly conducted the proceedings, once there is a defect in competence, it is a nullity and an exercise in futility. Moreover, since Courts are creatures of statutes, their jurisdiction is therefore confined, limited and circumscribed by the statutes creating them. A Court must not give itself jurisdiction by misconstruing the statute creating it.” PER SIMON TSAMMANI, J.C.A.

JURISDICTION: ELEMENTS OF JURISDICTION

The above position of the law refers to substantive jurisdiction of a Court, but there is one other type of jurisdiction referred to as procedural jurisdiction. I shall refer to the two types of jurisdiction later in the course of this judgment. For now, it suffices for me to state that before a Court can be said to have jurisdiction, the following elements must co-exist:
(a) The Court must be properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or another;
(b) The subject matter of the case is within the jurisdiction of the Court, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) The case has been initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. PER SIMON TSAMMANI, J.C.A.

JURISDICTION: WHETHER SECTION 97 OF THE SHERIFFS AND CIVIL PROCESS ACT PROVIDES FOR A SUBSTANTIVE OR PROCEDURAL JURISDICTION OF THE COURT

Now, our concern here is whether Section 97 of the Sheriffs and Civil Process Act (supra) provides for a substantive or procedural jurisdiction of the Court. As pointed out earlier, there is a marked distinction between substantive and procedural jurisdiction of a Court. This distinction is paramount because, while a procedural issue may be waived by the party for whose benefit it is made, a substantive jurisdiction of Court is created by Statute or the Constitution, and therefore neither of the parties can either waive or confer same on the Court where non-exists. See Adegoke Motors Ltd v. Adesanya (supra). Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency & Ors (2002) 18 NWLR (pt.798) 1; Eti-Osa L.G. v. Jegede (2007) 10 NWLR (pt.1043) 537 at 555 and RFG Limited & Anor v. Skye Bank Plc (2013) 4 NWLR (pt.1343) 251. Thus, in A.G; Kwara State & Anor v. Adeyemo & Ors (2017) 1 NWLR (pt.1546) 21, Rhodes-Vivour, JSC held as follows:
“Jurisdiction is a question of law. There are two types of jurisdiction: 1. Jurisdiction as a matter of procedural Law, 2. Jurisdiction as a matter of substantive Law. A litigant may waive the former. For example, a litigant may submit to a procedural jurisdiction of the Court where a Writ of Summons has been served outside jurisdiction without leave or where a litigant (the defendant) waives compliance by the Claimant of pre-action notice. No litigant can confer jurisdiction on the Court where the Constitution or Statute says that the Court does not have jurisdiction. While jurisdiction as a matter of procedural law is allowed to be waived but not allowed in the case of substantive law.”
There is no doubt that the requirement of endorsement as stipulated by Section 97 of the Sheriffs and Court Process Act (supra) does not confer substantive jurisdiction on a Court. In my view, it is a procedural matter for the benefit of a defendant who is domiciled outside the jurisdiction of the Court issuing a writ. It therefore means that, where a Writ of Summons issued for service out of the jurisdiction of the Court is not endorsed as required by Section 97 of the Sheriffs and Civil Process Act, the defendant affected thereby may apply to have same set aside ex debito justitiae. No doubt, the requirement of endorsement is a fundamental one, and therefore a writ issued without the prescribed endorsement is incompetent. However, to have the writ set aside, the defendant must have acted timeously. Thus, the requirement of endorsement under Section 97 of the Sheriffs and Civil Process Act is for the benefit of the defendant. The defendant can therefore waive the requirement of endorsement by proceeding with the trial.

See Panalpina World Transport Holding AG. v. Ceddi Corporation Ltd & Anor (2011) LPELR – 4827 (CA); Odua Investment Co. Ltd v. Talabi (1997) 10 NWLR (pt.523) 1 and B.B.N. Ltd v. Olayiwola & Sons Ltd (2005) 3 NWLR (pt.912) 434 at 457. See also Olatunbosun v. Annenih (2009) 15 NWLR (pt.1165) 560. In the case of Federal Road Safety Commission v. Emmanuel Olatubosun Orunmuyi (2016) LPELR – 40150 (CA), my learned brother, Abiriyi, JCA held as follows:
“Section 97 of the Sheriffs and Civil Process Act is for the benefit of the Defendant. The endorsement to the writ required by Section 97 of the Sheriffs and Civil Process Act informs the Defendant that a writ has been issued in another State. This means that a defendant can waive the requirement for endorsement. If a Defendant takes steps in the proceedings after becoming aware of the irregularity, he is deemed to have waived his right to insist on the proceedings being set aside.” PER SIMON TSAMMANI, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

ACCESS BANK PLC APPELANT(S)

And

SUNSHINE OIL & CHEMICAL DEVELOPMENT COMPANY LIMITED RESPONDENT(S)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Oyo State High Court of Justice delivered by A.A. Gbolagunte, J on the 15th day of November, 2011 in Suit No: I/992/2008: Sunshine Oil and Chemical Development Co. Ltd v. Access Bank Plc.

The Plaintiff/Respondent’s Claim against the Appellant who was the Defendant in the trial Court is as contained in Paragraph 22 of the Amended Statement of Claim filed on the 15/7/2009. Therein the Plaintiff/Respondent claimed as follows:
1. Declaration that the consent of the Plaintiff to the Facility “B” as a term loan in the sum of N741,394.62 allegedly granted by the Defendant to the Plaintiff contained in the Letter of Offer from the Defendant to the Plaintiff dated 8th August, 2007 was obtained by intimidation and therefore null and void.
2. Declaration that the Account No. 0065 – 360775 – 002 opened by the Defendant at its Bodija, Ibadan Branch in the name of the Plaintiff sometime before 4th July, 2006 is illegal and unlawful.
3. An Order of the Honourable Court to set aside

all moneys debited to the said Account No. 0056 – 360775 – 002 aforesaid and all interest accruing thereon.
4. An Order directing the Defendant to pay into the main Account No. 0065 – 360775 – 002 maintained by the Plaintiff at the Defendant’s aforesaid Bodija, Ibadan branch, all moneys deducted by the Defendant from the said Plaintiff’s main account however arising.
5. An Order that the Plaintiff is entitled to receive from the Defendant the sum of N956,999,888.00 (Nine Hundred and Fifty-Six Million, Nine Hundred and Ninety-Nine Thousand, Eight Hundred and Eighty-Eight Naira) which represented payments received by the Defendant on behalf of the Plaintiff from customers of the Plaintiff in line with the Letters of Domiciliation of payments in respect of 12 Letters of credit opened for the importation of commodities by the Plaintiff.
6. General damages in the sum of N500,000,000.00 (Five Hundred Million Naira) for excessive depravity suffered by the Plaintiff in the exercise of its rights in respect of the facilities granted to it by the Defendant.
7. Interest on the said sum of all sums due the Plaintiff from

March, 2006 to the date of judgment at the rate of 19% per annum, and thereafter, interest on the from the date of judgment until fully satisfied at the rate of 10% per annum.

The Appellant as Defendant filed a Statement of Defence denying the Claim, which Statement of Defence was twice amended with the extant Statement of Defence being the Further Amended Statement of Defence filed on the 23/2/2010. After issues were duly joined, the matter proceeded to hearing with the Plaintiff/Respondent calling six (6) witnesses. However, on the 20/9/2011, the Defendant/Appellant filed a Motion on Notice seeking the following reliefs:
1. An Order of the Honourable Court declining jurisdiction to entertain the present Suit No: I/992/08: Sunshine Oil & Chemical Development Co. Ltd v. Intercontinental Bank Plc for being incompetent.
2. An Order dismissing in limine the entire claims of the Claimant in Suit No: I/992/08: Sunshine Oil & Chemical Development Co. Ltd v. Intercontinental Bank Plc.
3. Such further order or orders as this Honourable Court may deem fit to make in the circumstances.

The Grounds upon which the reliefs are

sought are as follows:
(i) The Claimant’s Statement of Claim dated 9th September, 2008 and filed on 11th September, 2008 was filed before the Writ of Summons in this suit was issued.
(ii) The Writ of Summons by which this suit was commenced was issued on 23rd of October, 2008 after the Claimant’s Statement of Claim was filed.
(iii) The Defendant’s address for service as endorsed on the Claimant’s Writ of Summons dated 9th September, 2008 was: “INTERCONTINENTAL BANK PLC; INTERCONTINENTAL PLAZA, PLOT 999C DANMOLE STREET, OFF ADEOLA ODEKU STREET, VICTORIA ISLAND, LAGOS”.
(iv) The Claimant’s Writ of Summons dated 9th September, 2008 was not endorsed for service outside the jurisdiction of this Honourable Court in compliance with Section 97 of the Sheriffs and Civil Process Act.
(v) The Claimant’s Writ of Summons and other processes in the suit were served on the Defendant in Lagos State outside the jurisdiction of the Honourable Court.
(vi) The Claimant’s Suit as presently constituted amounts to gross abuse of Court process.
(vii) The Claimant’s Suit was not initiated by

due process of law and all the conditions precedent to the exercise of jurisdiction by this Honourable Court was not fulfilled by the Claimant.
(viii) This Honourable Court lacks the jurisdiction to entertain the Claimant’s Suit as presently constituted.

The Motion was supported by an Affidavit of 16 paragraphs deposed to by one Wole Jimi-Bada, a Legal Practitioner in the Firm of F. O. Fagbohungbe & Co, Counsel for the Defendants/Applicants/Appellants. Attached to the Affidavit were three documents marked as Exhibits “FOF1”, “FOF2” and “FOF3” respectively. The Motion was also accompanied by a Written Address. In opposition to the Motion, the Plaintiff/Respondent filed a Counter Affidavit of 13 paragraphs accompanied by a Written Address. A Further Affidavit of 9 paragraphs to which was annexed by a document marked as Exhibit “FOF4”; and a Reply on points of Law were also filed by the Defendant/Appellant. In response, the Plaintiff/Respondent filed a 2nd Counter Affidavit of six (6) paragraphs on the 27/10/2011. The parties argued the Motion when the parties

adopted and expatiated on their Written Addresses. Thus in a well-considered Ruling delivered on the 15/11/2011, the learned trial Judge dismissed the Motion. Dissatisfied with the decision, the Defendant/Applicant has appealed to this Court.

The Original notice of Appeal consisting of four (4) grounds of appeal was filed on the 10/2/2014 by the leave of this Court granted on the 04/2/2014. Same was amended by leave of this Court granted on the 11/5/2015. The Amended Notice of Appeal was accordingly filed on the 14/5/2015 consisting of five (5) Grounds of Appeal. This appeal was therefore heard on the Amended Notice of Appeal filed on the 14/5/2015. The Appellant’s Brief of Arguments was filed on the 27/5/2015 but deemed filed on the 10/10/2020. Three issues were distilled therein for determination as follows:
(i) Whether the learned trial Judge was right in holding that the contention of the Appellant in respect of the incompetence of the Respondent’s suit was limited to the non-endorsement of the Writ of Summons for service outside jurisdiction?
[Grounds 1 and 2 the Amended Notice of Appeal].

(ii) Whether the learned trial Judge was right in holding that the Appellant waived its right and submitted to the jurisdiction of the Court by filing a Statement of Defence in the suit before the lower Court?
(iii) Whether the learned trial Judge was right in striking out the Appellant’s Memorandum of Conditional Appearance at the instance of the Respondent without considering the appellant’s submission in that regard?

The Respondent’s Brief of Arguments was filed on the 25/06/2020. Therein, the Respondent adopted the three (3) issues raised for determination by the Appellant but argued same together. Having carefully studied the record of appeal and the issues raised by the parties in this appeal, I propose to consider issues 1 and 2 together while issue three will be considered alone. I wish to however note that the Appellant filed an Appellant’s Reply Brief on the 14/9/2020 and same was deemed properly filed and served on the 20/10/2020. I now proceed to consider the issues raised, beginning with issue three (3).

On issue three (3), learned counsel for the Appellant contended that

at the time the Appellant’s application challenging the jurisdiction of the Court was filed and argued, the High Court (Civil Procedure) Rules of Oyo State, 2010 had come into effect. That the said Rules required the filing of a Written Address to accompany any Motion filed, the purpose of which is to prevent the springing of surprises on opposing parties. It was then argued that, a perusal of the Written Address of the Respondent filed on the 11/10/2011 in opposition to the Appellant’s Motion will reveal that there was nothing therein relating to the Memorandum of Conditional Appearance filed by the Appellant being incompetent. That the Respondent, however, at the hearing of the Appellant’s Motion, raised and argued extensively on the competence of the Respondent’s Conditional Memorandum of Appearance, contending that same was signed on behalf of Chief F. O. Fagbohungbe, S.A.N without any indication as to the identity of counsel who signed it.

Learned Counsel for the Appellant contended that though the Appellant objected vociferously to the issue raised by the Respondent’s Counsel on the basis that same did

not form part of the Respondent’s Written Address, the learned trial Judge did not consider the objection but proceeded to agree with the Respondent. It was then submitted that the learned trial Judge erred in considering the issue raised by the Respondent, especially when no leave of Court was sought and obtained to raise and argue the issue. That, in the circumstances, the procedure adopted by the learned trial Judge was in violation of the Appellant’s right to fair hearing and thereby leading to a miscarriage of justice. That in any case, even if the learned trial Judge was right in considering the issue (which is not conceded), the Respondent had waived its right to complain having been deemed to have submitted to the jurisdiction of the Court. We were accordingly urged to hold that the learned trial Judge was in error in striking out the Appellant’s Memorandum of Conditional Appearance.

In response, learned counsel for the Respondent conceded that the learned counsel for the Respondent had drawn the attention of the learned trial Judge to the signature on the Memorandum of Appearance and made oral submissions

not contained in his Written Address. That learned counsel for the Appellant had the opportunity to reply to the submission of the Respondent’s Counsel and indeed argued that the objection raised by learned counsel (silk) ought to be in writing. The case of Sifax Nig. Ltd v. Migfo Nig. Ltd (2015) LPELR – 24655 was cited to submit that, where an opponent fails or neglects to counter argument or issue validly raised during oral presentation, he will be deemed to have conceded to that issue. It was thus submitted that, learned counsel for the Appellant had admitted that the Memorandum of Appearance filed on behalf of the Appellant is incompetent. We were accordingly urged to hold that there was no breach of fair hearing nor miscarriage of justice. The case of Nwankwo v. Yar’adua (2010) 3 SCNJ (pt.10) 244 at 265 was also cited in support.

Replying on points of law, learned counsel for the Appellant contended that the case of Sifax Nig. Ltd v. Migfo Nig. Ltd (supra) cited by learned counsel for the Respondent is not applicable to the facts of this case. That in the instant case, the Respondent filed a

Counter Affidavit and Written Address in opposition to the Appellant’s Motion on Notice filed on the 20/9/2011 but did not challenge the competence of the Memorandum of Conditional Appearance filed by the Appellant so as to give the Appellant the opportunity to reply thereto. That the issue was only raised when the parties were called upon to adopt their respective Written Addresses in respect of the competence of the Respondent’s suit. The case of Eneoli v. Oraekwe (2005) 1 NWLR (pt.961) 342 at 353 was then cited to submit that, in the instant case, the Appellant objected to the fresh issue raised and argued by the Respondent without the leave of Court first sought and obtained thereby springing-up a surprise on the Appellant.

Learned Counsel for the Appellant went on to submit that, the trial Court failed to pronounce on the objection of the Appellant to the fresh issue raised and argued by the Respondent. That the learned trial Judge however, relied heavily on the fresh issue canvassed by the Respondent without affording the Appellant the opportunity to be heard on it. It was thus submitted that, the failure of the

trial Court to rule on the objection of the Appellant led to a breach of the Appellant’s right to fair hearing guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). That in any case, the failure of the Respondent to raise the issue of competence of the Memorandum of Conditional Appearance timeously, amounted to a waiver on the part of the Respondent. The case of Heritage Bank Ltd v. Bent Worth Fin. (Nig.) Ltd (2018) 9 NWLR (pt.1625) 420 was cited in support.

Now, it is not in doubt that the issue before the trial Court was for the determination of the Appellant’s Motion on Notice filed on the 20/9/2011. By the Motion, the Appellant as Defendant before the trial Court had prayed the Court to decline jurisdiction to entertain the Respondent’s Suit and dismiss same in limine for being incompetent. The Motion was premised primarily on the fact that the Writ of Summons was not endorsed for service outside the jurisdiction of the trial Court. Secondly, that the action was in abuse of the process of the Court; and thirdly, that the suit was not initiated by due process

of the law and all conditions precedent to the exercise of jurisdiction by the trial Court. It is on those grounds that the Defendant/Appellant’s Motion on Notice was argued as a perusal of the Written Addresses of the parties would show. Apparently, the issue of competence of the Memorandum of Conditional Appearance was not raised by the Appellant. The issue was only raised by the Respondent in Paragraph 5 of the 2nd Counter Affidavit filed on the 27/10/11 in response to Paragraph 5 of the Further Counter-Affidavit in support of the Motion on Notice. In the said Paragraph of the Further Counter-Affidavit, it was deposed as follows:
“5. I know as a fact that the Defendant entered appearance in protest by filing a Memorandum of Conditional Appearance on 26/01/2009. A copy of the Memorandum of Appearance is now shown to me and marked as Exhibit “FOF4”.
In response the Respondent deposed in paragraph 5 of the 2nd Counter-Affidavit as follows:
“5. I verily believe that the purported Memorandum of Conditional Appearance dated 26th January, 2009 is incompetent”.

I am of view that the deposition in Paragraph 5 of the 2nd Counter-Affidavit is not a proper response to the fact deposed in Paragraph 5 of the Further Counter-Affidavit. It is not a statement of fact within the personal knowledge of the deponent nor is it information received by the deponent which he believes to be true. Rather, it is an objection to the competence of the Memorandum of Conditional Appearance filed by the Defendant/Appellant. Being an objection to the competence of the Memorandum of Appearance, the proper thing was for the Respondent to either raise same timeously vide Motion on Notice; or by leave of Court to raise and argue same. In the instant case, the issue was first raised in the Defendant/Appellant’s Further Affidavit in support of the Motion on Notice. Same has been held by me to be inappropriate since an affidavit must deal with facts only, devoid of any argument, prayer or objection. See Dapianlong v. Dariye (2007) 8 NWLR (pt.1036) 332 and Bamaiyi v. State (2001) 8 NWLR (pt.715) 270. It is therefore my view that the deposition in Paragraph 5 of the Further Affidavit in support of the Motion is

incompetent. It is accordingly struck out.

We are therefore left with the objection as raised by the Appellant’s learned counsel on the day the parties were adopting their Written Addresses. Thus, the learned trial Judge observed at page 494 of the record of appeal as follows:

“The learned Senior Advocate of Nigeria (SAN) also invited my attention to the signature on Exhibit “FOF4” which does not indicate the name of a recognized Legal Practitioner. He submitted that Exhibit “FOF4” is a purported Memorandum of Appearance under protest is incompetent. He urged me to rely on the process. Respondent’s counsel argued further that signature of Chief Felix O. Fagbohungbe, SAN in front of which “PP” appears shows that Chief Fagbohungbe (SAN) did not sign this document”.

It is apparent therefore that the issue of incompetence of the Memorandum of Appearance was raised by the Plaintiff/Respondent as a fresh issue at the hearing of the appeal. As a new or fresh issue, the leave of the trial Court was required to raise and argue same.

See Okolo v. Union Bank of Nigeria Ltd (1998) 2 NWLR (pt.539) 618 and Bhojsons Plc v. Daniel-Kalio (2006) 5 NWLR (pt.973) 330.

Thus, the new or fresh issue touching on the competence of the Memorandum of Conditional Appearance not raised and argued in the Motion on Notice, should have been raised by Motion on Notice by the Respondent; or by leave of Court. Same having been raised, and being of a fundamental nature, the learned trial Judge should have given an opportunity to the Appellant to properly respond by the grant of an adjournment. This is more so when learned counsel for the Appellant had objected to the competence of that issue at that stage. It is therefore my view, that the learned trial Judge breached the Appellant’s right to fair hearing when he relied on the issue of competence or otherwise of the Memorandum of Conditional Appearance to determine the application against the Appellant. The learned trial Judge also erred when he struck out the Appellant’s Memorandum of Conditional Appearance. The objection to the competence of the said Memorandum of Appearance came too late and it was inappropriately raised. This

issue (issue 3) is therefore resolved in favour of the Appellant.

Now on issue one, learned counsel for the Appellant contended that, the Plaintiff/Respondent purportedly initiated the suit at the lower Court on 11/9/2008 when it filed its Statement of Claim. That by Order 1 Rule 1 of the Oyo State High Court (Civil Procedure) Rules, 1988 a suit may be initiated by Writ of summons, Originating Summons, Originating Motion or Petition. That by Order 5 Rule 6 of the High Court Rules (supra), where a Writ of Summons is to be served outside jurisdiction, it shall be issued with leave of Court. That on the 22/10/2008, the trial Court granted the Respondent leave to issue and serve the Writ of Summons and other processes in the suit out of the jurisdiction of the Court. That the contention of the Appellant is that, prior to the leave granted the Respondent to issue the Writ outside jurisdiction, the Respondent had already filed the Statement of Claim on the 11/9/2008.

Learned Counsel for the Appellant also contended that, the Respondent did not comply with Section 97 of the Sheriffs and Civil Process Act, which requires, inter alia,

that a Writ of Summons for service outside the jurisdiction of the Court must be endorsed for service outside the territorial jurisdiction of the Court. It was accordingly submitted that the contention of the Appellant is hinged on two legs; to wit:
(a) that the Respondent’s Statement of Claim was filed on 11/9/08 before the Writ of Summons was issued on 23/10/08.
(b) that the Respondent failed to endorse the Writ of Summons for service outside the territorial jurisdiction of the trial Court.

It was then submitted that the learned trial Judge was in error when he held that the Appellant’s complaint on the competence of the suit was based solely on the non-endorsement of the Writ of Summons filed by the Respondent for service outside jurisdiction. That the learned trial judge’s misconception of the Appellant’s case led to the erroneous decision appealed against. Furthermore, that the learned trial Judge failed to consider the issue that the Statement of Claim was filed before Writ of Summons. In other words, that the Respondent’s Suit was commenced by a Statement of Claim.

The dictum of Okoro, JCA (as he then was) in the case of Touton S.A. v. Grimaldi Campaigna Di & Ors (2011) 4 NWLR (pt.1236) 1 was cited in support.

Learned Counsel for the Appellant went on to submit that, from the case of Touton S.A. v. Grimaldi Campaigna & Ors (supra), where a Plaintiff desires to institute a matter against a Defendant who is outside the jurisdiction of the Court, he must file an exparte motion and attach an unsigned copy of the Writ of Summons to the Affidavit in support of the motion for leave to issue. That, it is after the leave is granted, that the Plaintiff can proceed to file a clean copy of the Writ of Summons with all the frontloaded processes. That in the instant case, the Statement of Claim was filed together with an exparte application for leave to issue the Writ. That in the determination of the issue, however, the learned trial Judge failed to follow the procedure spelt out in Touton S. A. v. Grimaldi Campaigna Di & Ors (supra). The cases ofOmega Bank Plc v. Gov’t Ekiti State (2007) 16 NWLR (pt.1061) 445 at 473; and Adamu v. Commissioner of Police, Plateau State (2006) 2 All FWLR

(pt.298) 1348 at 1369 were also cited in support. We were accordingly urged to find that the Statement of Claim filed by the Respondent preceded the issuance of the Writ of Summons.

Learned Counsel for the Appellant went on to submit that the learned trial Judge erred in holding that the Appellant waived his right and thus submitted to the jurisdiction of the lower Court, because he filed a Statement of Defence. That the issues raised by the Appellant touched on the jurisdiction of the Court to entertain the Suit as constituted. That the issue raised by the Appellant being a challenge to the jurisdiction of the trial Court on the grounds that the suit was incompetent, the learned trial Judge erred in holding that the Appellant cannot raise the issue at that stage of the proceedings. The case of Emeka v. Okadigbo (2012) 18 NWLR (pt.133) 55 at 83 was then cited to submit that an issue of jurisdiction can be raised at any stage of the proceedings, even at the Supreme Court for the first time.

It was also submitted by learned counsel for the Appellant that, it was the argument of the Respondent that since the Appellant had filed a

Memorandum of Appearance, he (Appellant) is deemed to have submitted to the jurisdiction of the Court. That the learned trial Judge erred in agreeing with the Respondent that the Appellant had waived his right because, what the Appellant filed was a “Memorandum of Conditional Appearance.” The cases of Total International Ltd v. Awogboro (1994) 4 NWLR (pt.337) 147; Akhigbe v. Paulosa (Nig.) Ltd (2006) 12 NWLR (pt.994) 373 at 383 and Emeka v. Okadigbo (supra) were then cited to submit that, in law, a Conditional Appearance is usually entered by a Defendant who intends to object to the competence of the suit. That by filing a Memorandum of Conditional Appearance, the Appellant intended to subsequently bring an application to set aside or strike out the suit for being incompetent. Furthermore, that, the fact that the Appellant filed a Statement of Defence was not sufficient for the learned trial Judge to hold that the Appellant had elected to submit to the jurisdiction of the trial Court because by Order 24 Rule 2 of the High Court (Civil Procedure) Rules, 1988, the Appellant could only raise a point of law by filing

pleadings. We were accordingly urged to hold that the leaned trial Judge erred in holding that the Appellant waived its right having submitted to the jurisdiction of the Court.

In response, learned counsel for the Respondent contended that, the Writ of Summons in this suit was duly issued on the 23/10/2008 pursuant to leave of Court granted on the 22/10/2008. That contrary to the contention of the Appellant, the Procedure at the time the suit was instituted was to apply for the issuance of the Writ in accordance with Form 1 of the 1988 High Court Rules of Oyo State; and that the necessary application was made on the 11/9/2008. That upon grant of the application on the 22/10/2008, a formal Writ was issued on the 23/10/2008. That the Appellant was duly served all the Originating Processes at its address in Lagos by officers of the Court. That, the Appellant did not object but instead entered appearance and filed all necessary processes in defence of the suit which was amended twice. That, the trial commenced in 2009 and the Appellant participated actively by cross-examining the Six (6) witnesses called by the

Respondent.

Learned Counsel for the Respondent cited Order 5 Rule 1(2) and 2(1) of the Oyo State High Court (Civil Procedure) Rules, 2010 to submit that the Appellant did not object to the competence of the Suit timeously. That in any case, after the Respondent applied for the issuance of the Writ, it was the duty of the Court Registrar to issue the Writ formally. That Order 5 Rules 10 of the Oyo State High Court (Civil Procedure) Rules, 1988 stipulated that, before a Writ is issued, it shall be endorsed with a Statement of Claim, or a concise statement of the nature of the Claim where the Statement of Claim is not so endorsed. It was thus submitted that Rule 10 of Order 5 read along with Order 25 Rule 1 of the High Court Rules (supra) will indicate that, at the time of applying for a Writ, a Plaintiff is at liberty to file along the Statement of Claim. We were then urged to hold that, what was done was not a fundamental flaw but a substantial compliance with the rules operative at the time the suit was instituted.

Learned Counsel for the Respondent went on to submit that, the first step to be taken under the 1988 Rules is to

apply for the issuance of a Writ. That at the time the application is being made, the Plaintiff will also file the Statement of Claim together with the Writ of Summons so that the Writ is endorsed to be issued by the Court for service outside jurisdiction. That it is clear that the Respondent sought leave to issue and serve the Writ of Summons and other processes out of the jurisdiction of the trial Court. It was then submitted that once the Plaintiff applies for the Writ of Summons, the issuance and service of same is in the hands of the Registrar of the Court. In other words, that the issuance and service of the Writ is the administrative duty of the Registrar, inclusive of the endorsement thereon. Furthermore, that from the time the Plaintiff applies for the issuance and service of the Writ of Summons, the process remains in the custody of the Registrar of the Court, and therefore, it will be the Registrar who had the duty to comply with the Ruling of the Court regarding the issuance and service of the Writ. It was accordingly submitted that, any lapse in the service of the Writ including the endorsement thereon remains

with the Registrar and therefore cannot be blamed on the Plaintiff. The cases of Cooperative and Commercial Bank Plc v. Attorney General, Anambra State & Anor (1992) 8 NWLR (pt.261) 528 at 561 and Alhaji Hassan Khalid v. Alhaji Umar Ismail & Anor (2013) LPELR – 22325 (CA) were cited in support.

Learned Counsel for the Respondent also quoted profusely from the dictum of Uwa, JCA inBritish-American Tobacco (Nig.) Ltd v. Attorney-General of Ogun State (2013) LPELR – 20674 (CA) to further submit that, it will be prejudicial to the Respondent over an act (endorsement) which ought to have been done by the Registrar. It was further argued that, the Appellant has not complained that they were not served. That the Appellant was not only served but also filed a Statement of Defence which was twice amended. That the Suit even went to trial whereof the Respondent called Six (6) witnesses who were cross-examined by the Appellant before the Appellant filed the motion seeking that the Suit be dismissed in limine. It was then submitted that, the learned trial Judge was right when he held that the Appellant waived its right to

object. The case ofOdu’a Investment Co. Plc v. Talabi (1997) 10 NWLR (pt.523) 1 was cited in support.

Learned Counsel for the Respondent went on to submit that the case of Touton S. A. v. Grimaldi (supra) cited by the Appellant is not relevant to the facts and circumstances of this case. That, the issue in Touton’s case had to do with whether leave of Court was sought before issuance of the Writ of Summons. We were accordingly urged to discountenance Touton’s case as not applicable to this case. We were also urged to hold that, whatever transpired in the Registry of the trial Court could not be blamed on the Respondent, and that whatever defect was observed on the Writ was a mere irregularity which could be waived. We were accordingly urged to resolve those issues against the Appellant and to dismiss the appeal.

In reply on points of law, Learned Counsel for the Appellant contended that, the Respondent misconceived the facts as well as the provisions of the Oyo State High Court (Civil Procedure) Rules, 1988 which was applicable at the time the Suit was initiated. That, it is trite law, that a

Writ of Summons is deemed issued upon same being signed by the Registrar and that it is upon its issuance that it becomes effective. That in the instant case, it is not in dispute that the Writ of Summons came into life on 23/10/2008 after the Statement of Claim was filed on the 11/9/2008; and therefore the Suit was initiated by a Statement of Claim.

On the contention of the Respondent that the Appellant did not object to the service of the process, learned counsel for the Appellant referred us to the Memorandum of Conditional Appearance filed by the Appellant, and the fact that the Appellant subsequently raised the objection to the competence of the Suit in its Statement of Defence before filing the Motion challenging the jurisdiction of the trial Court. That the case of Touton S. A. v. Grimaldi (supra) is therefore applicable to the facts of this case as the ratio decidendi therein spells out the procedure for obtaining leave to issue Writ of Summons outside the territorial jurisdiction of the Court.

Learned Counsel for the Appellant then contended that, the argument of the Respondent on the number of witnesses called and the alleged

delay of the Appellant in filing its front loaded processes is a red herring and an attempt to obfuscate the issues as the issue of jurisdiction was clearly raised in the pleadings and a motion challenging the jurisdiction of the Court was filed as far back as 20/9/2011. That the trial Court delivered Ruling on the Motion on the 15/11/2011. That it was in the period between when an application seeking leave to appeal the Ruling and the grant of the application, that the witnesses were called.

On the contention of the Respondent that the defect complained of by the Appellant was the mistake of the Registry, learned counsel for the Appellant submitted that, the authorities relied on by the Respondent are not applicable to the facts of this case. That the issue in the cases relied on by the Respondent border on the mistake of the Registry to mark the Originating Writ of Summons; “Concurrent Writ of Summons” which is different from the situation in this case. Furthermore, that the complaint of the Appellant is of a fundamental nature who goes to the root of the Suit which cannot be waived; and not a mere irregularity.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Now, as can be seen from the submissions of counsel, it is the Appellant’s case that it’s challenge to the competence of the suit before the trial Court, border on the jurisdiction of the trial Court to hear and determine the suit. In law, jurisdiction is generally regarded as the right of a Court to exercise its powers over a particular subject matter. It also refers to the legal capacity or authority of a Court to adjudicate in respect of a particular suit or res in dispute. In Obi v. INEC & Ors (2007) LPELR – 2166 (SC), Aderemi, JSC defined jurisdiction to mean the legal power or legal authority that enables a Judge to enter into adjudication in a matter before him. See also Emmanuel Onyema & Ors v. Uwaeze Oputa & Anor (1987) LPELR – 2736 (SC) and G & T Investment Ltd v. Witt & Bush Ltd (2011) 8 NWLR (pt.1250) 500 at 538. Thus in A.G; Anambra State v. A.G; Federation (2007) LPELR – 24343 (SC) Muhammad, JSC said:
“…. Infact jurisdiction to a Court of law is equated to blood in a living animal. Jurisdiction is the blood that gives life to the survival of

an action in a Court of law without which the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an exercise in futility.”
Jurisdiction is therefore fundamental and a necessary pre-requisite to the survival of any cause or matter before a Court of law. It means therefore that any attempt by a Court to adjudicate over any matter, it has no power or jurisdiction to, will be a futile exercise. Accordingly, the conduct by a Court of any proceeding it has no jurisdiction to do, no matter how well or brilliantly conducted would be a nullity. Such decision and any order derived therefrom, would be a nullity and would be declared to be so on appeal. Thus in Nelson Uzoukwu Nwankwo v. Customary Court, Ndiawa, Arondizuogu & Ors (2009) LPELR – 4589 (CA), My Lord, Kekere-Ekun, JCA (as he then was) held that, where a Court acts without jurisdiction or in excess of its jurisdiction, no amount of liberality can validate its actions. See alsoNNPC & Anor v. Orhiowasele & Ors, Nwankwo v. Yaradua & Ors

(2010) 12 NWLR (pt.1209) 518 and Frederick S. Alasia v. Prof. J.D. Okoh & Ors (2011) LPELR – 4175 (CA). Thus, in Agbule v. Warri Refinery & Petrochemical Co. Ltd (2013) 6 NWLR (pt.1350) 318, Rhodes-Vivour, JSC said:
“Jurisdiction is a question of law. It is a threshold issue, very fundamental, the livewire of a suit. Where a Court does not have jurisdiction over a matter before it and it proceeds to hear and determine the matter, the whole proceedings no matter how well decided would amount to a nullity. This is premised on the position of the law that a judgment given without jurisdiction creates no legal obligations. Such a judgment confers no right on any of the parties.”

B.B Apugo & Sons Ltd v. Orthopedic Hospital Management Board (2016) LPELR – 40598 (SC). In Egharevba v. Eribo (2010) 9 NWLR (pt.1199) 422, the Supreme Court, per Adekeye, JSC held that:
“Under the Nigerian Legal System, Courts are set up under the Constitution, Decrees, Acts, Laws and Edicts – they also cloak the Courts with the powers and jurisdiction of adjudication. If the Constitution, Decrees, Act, Laws and Edicts do not grant jurisdiction to a Court or tribunal, the Court and parties cannot by agreement endow it with jurisdiction, as no matter how well and properly conducted the proceedings, once there is a defect in competence, it is a nullity and an exercise in futility. Moreover, since Courts are creatures of statutes, their jurisdiction is therefore confined, limited and circumscribed by the statutes creating them. A Court must not give itself jurisdiction by misconstruing the statute creating it.”

The above position of the law refers to substantive jurisdiction of a Court, but there is one other type of jurisdiction referred to as procedural jurisdiction. I shall refer to the two types

of jurisdiction later in the course of this judgment. For now, it suffices for me to state that before a Court can be said to have jurisdiction, the following elements must co-exist:
(a) The Court must be properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or another;
(b) The subject matter of the case is within the jurisdiction of the Court, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) The case has been initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

In the instant case, learned counsel for the Appellant submitted that, their complaint before the trial Court on the competence of the suit relate to the third element of jurisdiction, to wit: that the suit initiated by the Respondent in the Court below, did not comply with due process of law and did not fulfill a condition precedent as to confer on the Court the jurisdiction to hear and determine same. In determining the issue, the learned trial Judge quoted

Section 97 of the Sheriffs and Civil Process Act, Cap.6, Laws of the Federation of Nigeria, 2004, to find at 501 of the record of appeal as follows:
“The non-inclusion of this endorsement on the Writ of Summons is the main plank upon which this application is hinged upon.
Exhibit “FOF3” attached to this application shows that the Claimant applied for leave of this Honourable Court to issue and serve the Writ of Summons and other processes in this suit out of jurisdiction, to wit: at Intercontinental Plaza, Plot 999C, Danmole Street, Off Adeola Odeku Street, Victoria Island, Lagos State of Nigeria. This leave was grunted on 22nd October, 2008. This means that parties are ad idem that leave of Court was obtained to issue and serve the Defendant the Writ of Summons outside jurisdiction. The contention of the Defendant’s counsel is that no endorsement was marked or inserted on the Writ of Summons served outside jurisdiction as contained in Section 97 of the Sheriffs and Civil Process Act, 2004 LFN…”

The learned trial Judge then relied on the book;

“An Almanac of Contemporary Judicial Restatements with Commentaries, Vol.1 by Lai Oshintokunbo Oshinsanya; Spectrum Books (Reprint: 2010) at p.476 to hold at page 503 lines 1 – 10 of the record of appeal as follows:
“With leave of this Honourable Court, the Defendant filed amended statement of defence on 19th March, 2009. The Defendant also filed a further amended statement of defence on 23rd February, 2011. These processes filed by the Defendant/Applicant show that this application has not been brought timeously and could be refused. See Odua Investment Co. Plc v. Talabi (supra) and that the Defendant has wholly submitted to the jurisdiction of this Honourable Court and ought not be heard as complaining of non-compliance with Section 97 of the Sheriffs and Civil Process Act, 2004. Adegoke Motors v. Adesanya (1989) 3 NWLR (pt.109) 250; Sken Consult v. Ukey (1981) 1 S.C.6; Nwabueze v. Okoye (1985) 1 NWLR (pt.2) 195.”

As rightly observed by the learned trial Judge, the main plank of the Appellant’s complaint before the trial Court was that, there was no endorsement on the Writ of Summons that it was to be served out of the jurisdiction of the Oyo State High

Court. Section 97 of the Sheriffs and Civil Process Act, Cap.6, Laws of the Federation of Nigeria, 2004 stipulates that:
“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 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).”
Now, our concern here is whether Section 97 of the Sheriffs and Civil Process Act (supra) provides for a substantive or procedural jurisdiction of the Court. As pointed out earlier, there is a marked distinction between substantive and procedural jurisdiction of a Court. This distinction is paramount because, while a procedural issue may be waived by the party for whose benefit it is made, a substantive jurisdiction of Court is created by Statute or the Constitution, and therefore neither of the

parties can either waive or confer same on the Court where non-exists. See Adegoke Motors Ltd v. Adesanya (supra). Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency & Ors (2002) 18 NWLR (pt.798) 1; Eti-Osa L.G. v. Jegede (2007) 10 NWLR (pt.1043) 537 at 555 and RFG Limited & Anor v. Skye Bank Plc (2013) 4 NWLR (pt.1343) 251. Thus, in A.G; Kwara State & Anor v. Adeyemo & Ors (2017) 1 NWLR (pt.1546) 21, Rhodes-Vivour, JSC held as follows:
“Jurisdiction is a question of law. There are two types of jurisdiction: 1. Jurisdiction as a matter of procedural Law, 2. Jurisdiction as a matter of substantive Law. A litigant may waive the former. For example, a litigant may submit to a procedural jurisdiction of the Court where a Writ of Summons has been served outside jurisdiction without leave or where a litigant (the defendant) waives compliance by the Claimant of pre-action notice. No litigant can confer jurisdiction on the Court where the Constitution or Statute says that the Court does not have jurisdiction. While jurisdiction as a matter of procedural law is

allowed to be waived but not allowed in the case of substantive law.”
There is no doubt that the requirement of endorsement as stipulated by Section 97 of the Sheriffs and Court Process Act (supra) does not confer substantive jurisdiction on a Court. In my view, it is a procedural matter for the benefit of a defendant who is domiciled outside the jurisdiction of the Court issuing a writ. It therefore means that, where a Writ of Summons issued for service out of the jurisdiction of the Court is not endorsed as required by Section 97 of the Sheriffs and Civil Process Act, the defendant affected thereby may apply to have same set aside ex debito justitiae. No doubt, the requirement of endorsement is a fundamental one, and therefore a writ issued without the prescribed endorsement is incompetent. However, to have the writ set aside, the defendant must have acted timeously. Thus, the requirement of endorsement under Section 97 of the Sheriffs and Civil Process Act is for the benefit of the defendant. The defendant can therefore waive the requirement of endorsement by proceeding with the trial.

filed the Motion on notice seeking leave of Court to issue and serve the Writ of Summons and other processes out of jurisdiction. The Motion was heard and granted on the 22/10/2008. Consequently, the Writ of Summons and Statement of Claim were issued and served on the Defendant/Appellant at the address stated on the writ, outside the jurisdiction of the Court. Upon receiving service, the Defendant/Appellant filed a Memorandum of Conditional Appearance on the 27/01/2009. The Defendant/Appellant also filed a Statement of Defence on the 11/2/2009 which was twice amended and filed on the 19/3/2009 and 23/02/2010 respectively. The Defendant/Appellant also participated in the proceedings wherein the Plaintiff/Respondent amended its Statement of Claim. It should also be noted that hearing in the matter began on the 16/06/2009 when the Plaintiff called its first witness who testified as (PW1). Thereafter, the Respondent called five (5) other witnesses who testified as PW2, PW3, PW4, PW5 and PW6 respectively. The PW6 testified on the 9/7/2010. The Defendant/Appellant was represented throughout the proceedings by

counsel who thoroughly cross-examined the Plaintiff’s witnesses. The Plaintiff/Respondent was to call the seventh (7th) witness when the Defendant/Appellant filed the Motion subject of this appeal on the 20/9/2011.
It is not in dispute that the Appellant filed a Memorandum of Conditional Appearance immediately the Writ of Summons was served on it. There is no doubt that by filing the Memorandum of Conditional Appearance, the defect in the Writ of Summons was noticed by counsel who filed the Memorandum of Conditional Appearance. The Appellant also gave indication that it would challenge the competence of the suit based on the defective Writ but no step was taken to initiate such challenge till on the 20/9/2011, a period of about three years after the writ was served on it. The Appellant within that period, had filed a Statement of Defence which it twice amended. It also participated actively in the proceedings by extensively cross-examining the Respondent’s six (6) witnesses who had testified. By the conduct of the Appellant, it is my view that he had given the Respondent and indeed the Court that the

impression that he was not challenging the competence of the suit. The Appellant by so doing had submitted to the jurisdiction of the Court and therefore waived its right to complain. I therefore hold that, the learned trial Judge was right in holding that the Appellant did not act timeously thereby forfeiting or waiving its right to complain. Issues 1 and 2 raised for determination by the Appellant are accordingly resolved against the Appellant.

It would be seen that issue 3 has been resolved in favour of the Appellant while issues 1 and 2 have been resolved against the Appellant. With the resolution of issues 1 and 2 against the Appellant, it would be seen that this appeal has failed in part. Consequently, the appeal is allowed in part. I however affirm the decision of the trial Court delivered on the 15/11/2011 dismissing the Appellant’s Motion on Notice filed on the 20/9/2011.

I award cost of One Hundred Thousand Naira (N100,000.00) against the Appellant in favour of the Respondent.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the Lead Judgment of my Learned brother HARUNA SIMON TSAMMANI

JCA, just delivered and I agree with the reasons given as well as the conclusion that the Appeal is allowed in part.

I abide by the consequential Orders made in the said Lead Judgment including the Order as to costs.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading before now, the lead judgment just delivered by my learned brother HARUNA SIMON TSAMMANI, JCA. I agree with his reasoning and the conclusion reached by him.

It is not in dispute that that the Respondent sought and obtained leave of the lower Court to issue and serve the Writ of Summons on the Appellant who was the Defendant outside the jurisdiction of Court. The complaint of the Appellant is that there is no endorsement on the face of the Writ of Summons that it is to be served out of jurisdiction as provided under Section 97 Sheriffs Civil Process Act, CAP. S6, Laws of the Federation, 2004.

The law is settled that where the complaint borders on the procedure for invoking the jurisdiction of the Court, an Objector who had voluntarily submitted to the jurisdiction cannot be heard to complain later about the irregular procedure. The

procedure for invoking the jurisdiction of the Court should not be confused with the authority of the Court to adjudicate on a matter before it. SeeMOBIL PRODUCING (NIG) UNLIMITED vs. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY (2002) 18 NWLR (PT. 798)1; KATSINA LOCAL AUTHORITY VS. MAKURDAWA (1971) 1 NMLR 100; NDAYAKO VS. DANTORO (2004) 13 NWLR (PT. 889) 187.
The Appellant who submitted to the jurisdiction of the Court has waived his right to complain.

It is for this and the more detailed reasons contained in the lead judgment I too allow this appeal in part and affirm the decision of the trial Court delivered on the 15th of November 2011 dismissing the Appellant’s Motion on Notice filed on 20th September 2011. I also abide by the order made as to costs.

Appearances:

A. Oduwole, Esq., with him, A. O. Ayinde, Esq and G. G. Okewulonu (Miss) For Appellant(s)

Olubode Elemide, Esq., with him, O. H. Oyeniyi, Esq. For Respondent(s)