ADEKOYA v. ATTAH
(2022)LCN/16001(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Thursday, March 03, 2022
CA/K/96/2020
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
PRINCE DEJI ADEKOYA APPELANT(S)
And
DR. AMBROSE ATTAH RESPONDENT(S)
RATIO
THE DISTINCTION BETWEEN ENDORSEMENT TO THE ISSUANCE OF A WRIT AND SERVICE OF WRIT OUTSIDE JURISDICTION
The Courts have always made a distinction between endorsement to the issuance of writ and service of writ outside jurisdiction. The Courts further insist that both the endorsement and the service must be proper. Failure of either of these requirements will amount to a jurisdictional error. In other words, a writ or summons to be served outside the jurisdiction of the Court must be so properly endorsed and also properly served.
The above distinction between endorsement of writ and service of writ was clearly made in the judgment of the apex Court in the case of Kida v. Ogunmola (2006) 13 NWLR (Part 997) 377 at 398 where Oguntade JSC held that Section 97 of the Sheriffs and Civil Process Act, 2004 prescribes that every writ of summons for service outside the state whose High Court is issuing the writ shall carry the endorsement set out in the section. It is only when this has been done validly that writ can be served outside jurisdiction.
It is needless to add that failure to endorse the required notice on a writ of summons for service outside of a State where it was issued is not a mere irregularity but a fundamental defect that renders the writ incompetent and goes to the root of the competence and jurisdiction of the Court.
See Owners of the “MV Arabella v. N.A.I.C. (2008) 11 NWLR (Part 1097) Pg. 182 at 207 per Ogbuagu JSC, Nwabueze v. Okoye (1988) 3 NSCC 53, NEPA v. Onah (1997 1 SCNJ 220, P.W. TH AG v. Ceddi Corp. Ltd. (2012) 2 NWLR (Part 1285) Pg. 465 at 489. PER OWOADE, J.C.A.
THE POSITION OF LAW ON ENDORSEMENT OF A WRIT OF SUMMONS
Firstly, an application to the Court or Registrar for the issuance of a writ of summons out of jurisdiction and to have the writ so endorsed before issuance. The endorsement shall be to the effect that the writ of summons is to be served out of state A and in state B. Each copy of the writ must be so endorsed.
Secondly, the applicant must then apply for leave to serve the endorsed writ outside the jurisdiction of state A in the named state B. The two steps distinct applications are necessary as both requirements are mandatory. They cannot be rolled into each other. Failure to comply with one renders compliance with the other ineffectual.
In other words, the writ must first be endorsed to the effect that the writ of summon is to be served out of jurisdiction of (state A) and in another state (state B) before an application for leave to serve the writ outside jurisdiction can be competent. Without the endorsement clearly marked on each copy of the writ that the writ is to be served out of jurisdiction, an application for service outside jurisdiction even if erroneously granted cannot cure the deficiency.
Thus, failure to endorse the writ as required is as fatal as failure to seek leave to serve the endorsed writ outside jurisdiction. OWNERS OF MV ARABELLA V. N.A.I.C (2008) 11 NWLR (Pt. 1097) 182, 207. PER WAMBAI, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court of Justice delivered by Hon. Justice Hannatu Balogun on the 26th day of November, 2019.
The Respondent as Plaintiff in the Court below issued a Writ of Summons accompanied by Statement of Claim against the Appellant/Defendant on 9th day of May 2019. The writ was meant to be served on the Appellant at No. CS. 51 Harmonic Plaza, Wuse Abuja outside the jurisdiction of the Court but was not so endorsed.
The claims of the Respondent/Plaintiff against the Appellant/Defendant as contained in the writ of summons are as follows:
“Whereof the Plaintiff’s claims against the Defendant are:
a. Refund of the sum of Four Million, Five hundred Thousand Naira (N4,500,000.00) being the purchase price of the property which the Defendant induced the Plaintiff to part with because a failure of consideration.
b. Repayment of aggregate sum of N4,566,300.00 being money plaintiff spent on construction and renovation works done on the property.
c. The payment of the sum of N5,993,700.00 being general damages for fraudulent representations and/or breach of warranty.
d. Interest on the purchase price of N4,500,000.00 at the prevailing bank rate of 22% per annum until judgment and thereafter at the rate of 10% per annum until the total debt is liquidated.”
On the 7th day of May, 2019 the Respondent prayed the Court below for leave to serve the Court processes on the Appellant who resides outside the jurisdiction of the Court below and on the 13th day of June 2019, the Respondent also prayed the Court below for an order of substituted service of the originating processes on the Appellant by pasting it on the address supplied by the Respondent. All the prayers of the Respondent were granted by the Court below.
The Appellant never appeared throughout the entire proceedings of the Court below and on the 26th day of November, 2019, the Court below heard the two witnesses of the Respondent, admitted Exhibits and in the absence of the Appellant, the Court delivered its judgment.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing five (5) grounds of appeal in this Court on 23/12/2019. The relevant processes for the appeal are:
1. Appellant’s brief of argument of 26-3-2020. It is settled by T. A. Olorisade Esq.
2. Respondent’s brief of argument of 15-07-2020 was however deemed filed on 11-11-2020. It is settled by S. O. Adalache Esq.
3. Appellant’s Reply was filed on 28-7-2020. It is settled by T. A. Olorisade Esq.
Learned counsel for the Appellant nominated three (3) issues for determination. They are:
(i) Whether the Respondent can sue an agent of a disclosed principal. (Distilled from Ground 4).
(ii) Whether the writ of summons issued for service outside the jurisdiction of the Court below was endorsed for service outside the Court’s jurisdiction. (Distilled from Ground 2).
(iii) Whether the writ of summons was served at the address or the last known place of abode of the appellant. (Distilled from Ground 3).”
Learned counsel for the Respondent similarly formulated three (3) issues for determination. They are:
“1. Having regard to the Respondent’s clear claim as per his writ of summons and averments in the statement of claim, whether Ground One of the Appellant’s Grounds of Appeal and Issue No.1 distilled, arose from the facts of the case and the ratio decidendi of the decision appealed against.
2. Whether the writ of summons issued for service outside the jurisdiction of the Court below was endorsed for service outside the Court’s jurisdiction.
3. Whether the writ of summons of the Court below was served on the Appellant at his address at No. CS 51 Harmonic Plaza Wuse, Abuja.”
The three issues raised by the Appellant appear to be issues of jurisdiction, directly or indirectly. However, issue No.2 seems specially significant and it relates to procedural jurisdiction of the Court below to proceed with the Respondent Plaintiff’s claim.
On the said issue 2, learned counsel for the Appellant submitted that the Respondent’s writ of summons issued on the 9th day of May, 2019 meant to be served on the Appellant at No. CS 51, Harmonic Plaza, Wuse Abuja was not endorsed to be served outside jurisdiction under the provision of Section 97 of the Sheriffs and Civil Process Act Cap. 56 LFN 2004. He reproduced the said Section thus:
“97. – Every writ of summons for service under this Act out of the State or the Capital territory in which it was issued shall, in addition to any/other endorsement or notice required by law of such State or the capital territory have endorsed thereon a notice to the following effect (that is to say)
This summons (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).”
Learned counsel for the Appellant then referred to a host of decided authorities to say that by the provisions of Section 97 of the Sheriffs and Civil Process Act, every writ of summons for service out of the State in which it was issued must, in addition to any endorsement of notice required by law of such State, have endorsed thereon, a notice indicating that the summons is to be served out of the State and in which State is to be served. That failure to endorse the required notice on a writ of summons for service outside of a State where it was issued is not a mere irregularity but a fundamental defect that renders the writ incompetent and goes to the root of jurisdiction and affects the competence of the Court.
Appellant’s Counsel referred to the cases of Nwabueze v. Okoye (1988) 3 NSCC 53, NEPA v. Onah (1997) 1 SCNJ 220, Odua Investment v. Talabi (1997) 7 SCNJ 600, Kida v. Ogunmola (2006) 13 NWLR (Pt. 997) 377 at 398, Owners of the “MV” Arabella v. N.A.I.C. (2008) 11 NWLR (Pt. 1097) 182 at 207, P.W.T. H AG v. Ceddi Corp. Ltd. (2012) 2 NWLR (Pt. 1285) Pg. 465 at 489.
In response to the Appellant’s issue 2, Learned counsel for the Respondent submitted that the writ of summons in the Court’s/judges file is not required by the said Section 57(sic) 97 of the law to carry the endorsement for service outside jurisdiction. It is rather otiose to require that the copies of the writ of summons in the Judges file be marked for service outside jurisdiction. He submitted that a copy of the writ of summons to be served on the Defendant (Appellant) in this case is what is required by law to be endorsed and NOT copies of writs of the Judge’s file.
It is not sufficient to rely on the writ of summons in the Judge’s file to show that the writ of summons was not marked for service outside jurisdiction but Appellant must go further to tender a copy of the writ which was not marked for service outside jurisdiction and which was pasted at No. CS 51 Harmonic Plaza, Wuse Abuja.
In his Reply brief, learned counsel for the Appellant further pointed out that the Respondent’s ex parte application granted by the Court on 7th May, 2019 never asked the Court below for the specific endorsements as required under the provision of Section 97 of the Sheriffs and Civil Process Act and that there is no law that says only copies of processes to be served outside jurisdiction must be endorsed and not copies of writ of summons in the Judge’s file. Copies of processes in the Judge’s file are taken, known, recognized and indeed accepted as the original from which all other copies emanated or were jointly mechanically processed and produced. Appellant’s counsel added that the Respondent never sought the Court or its registrar for any endorsement for service outside jurisdiction.
Resolution of Issue No.2
In determining Appellant’s issue 2, it suffices to say that the learned counsel for the Respondent did not comply with the provision of Section 97 of the Sheriffs and Civil Process Act for the need to endorse the writ of summons to be served outside the jurisdiction of the Court.
The application to the Court or Registrar to endorse for service outside jurisdiction ought to be taken before the filing of the writ and must be related to the issuance of the writ. It is a wrong application of the procedure to imagine that the application is for leave to serve outside the jurisdiction of the Court. The application is for endorsement as to service or endorsement for service and not for leave to serve outside jurisdiction.
In the instant case, there was no application either to the Court or registrar for endorsement of writ of summons before the issuance of the writ of summons. This was precisely the reason why the necessary endorsement is not reflected in the writ of summons on pages 1 and 2 of the Record of Appeal.
The application on the Respondent’s motion ex parte which was granted by the learned trial judge on 7-5-2019 was for “leave to serve the originating processes issued in this case outside the jurisdiction of this Honourable Court…”
Indeed paragraph 7 of the Affidavit in support of the Ex parte Motion reads:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“That the leave of the Honourable Court is required to serve the originating Court processes in this suit on the Defendant who is out of jurisdiction of this Honourable Court.”
An application for the endorsement as to service of writ outside jurisdiction must be a priori to the issuance of the writ and the post endorsement must be shown on the face of the writ.
It is this mix-up of the procedures between the endorsement for the issuance of writ and leave for service outside jurisdiction that accounted for the error of the learned counsel for the Respondent in this case.
The Courts have always made a distinction between endorsement to the issuance of writ and service of writ outside jurisdiction. The Courts further insist that both the endorsement and the service must be proper. Failure of either of these requirements will amount to a jurisdictional error. In other words, a writ or summons to be served outside the jurisdiction of the Court must be so properly endorsed and also properly served.
The above distinction between endorsement of writ and service of writ was clearly made in the judgment of the apex Court in the case of Kida v. Ogunmola (2006) 13 NWLR (Part 997) 377 at 398 where Oguntade JSC held that Section 97 of the Sheriffs and Civil Process Act, 2004 prescribes that every writ of summons for service outside the state whose High Court is issuing the writ shall carry the endorsement set out in the section. It is only when this has been done validly that writ can be served outside jurisdiction.
It is needless to add that failure to endorse the required notice on a writ of summons for service outside of a State where it was issued is not a mere irregularity but a fundamental defect that renders the writ incompetent and goes to the root of the competence and jurisdiction of the Court.
See Owners of the “MV Arabella v. N.A.I.C. (2008) 11 NWLR (Part 1097) Pg. 182 at 207 per Ogbuagu JSC, Nwabueze v. Okoye (1988) 3 NSCC 53, NEPA v. Onah (1997 1 SCNJ 220, P.W. TH AG v. Ceddi Corp. Ltd. (2012) 2 NWLR (Part 1285) Pg. 465 at 489.
In the instant case, the Respondent’s writ of summons has not carried the mandatory endorsement as stipulated under Section 97 of the Sheriffs and Civil Process Act for service outside jurisdiction.
The absence of such endorsement for a writ meant to be served outside jurisdiction renders the writ of summons a fortiori service of the said writ invalid and incompetent.
Issue 2 is resolved in favour of the Appellant.
Having resolved issue 2 which has turned out to be a determinant issue in favour of the Appellant, this appeal is meritorious and it is accordingly allowed.
The Respondent’s writ of summons in Suit No. KDH/KAD/340/2019 is hereby set aside.
Also, the judgment and orders of Hon. Justice H.A.L. Balogun delivered in suit No. KDH/KAD/340/2019 delivered on 26-11-2019 are set aside.
N30,000.00 costs is awarded to the Appellant.
AMINA AUDI WAMBAI, J.C.A.: I had the opportunity of reading before now the concise and illuminating lead judgment of my learned brother, Mojeed A. Owoade, JCA who had eloquently dealt with the Appellant’s 2nd issue for determination rightly considered as the determinant issue in the appeal.
The issue relates to the requirement of Section 97 of the Sheriffs and Civil Process Act (SCPA) Cap 56 LFN 2004 already reproduced in the lead judgment with respect to the endorsement on a writ of summons issued in one state for service out of jurisdiction of that state in another state. Two procedural steps or applications are required.
Firstly, an application to the Court or Registrar for the issuance of a writ of summons out of jurisdiction and to have the writ so endorsed before issuance. The endorsement shall be to the effect that the writ of summons is to be served out of state A and in state B. Each copy of the writ must be so endorsed.
Secondly, the applicant must then apply for leave to serve the endorsed writ outside the jurisdiction of state A in the named state B. The two steps distinct applications are necessary as both requirements are mandatory. They cannot be rolled into each other. Failure to comply with one renders compliance with the other ineffectual.
In other words, the writ must first be endorsed to the effect that the writ of summon is to be served out of jurisdiction of (state A) and in another state (state B) before an application for leave to serve the writ outside jurisdiction can be competent. Without the endorsement clearly marked on each copy of the writ that the writ is to be served out of jurisdiction, an application for service outside jurisdiction even if erroneously granted cannot cure the deficiency.
Thus, failure to endorse the writ as required is as fatal as failure to seek leave to serve the endorsed writ outside jurisdiction. OWNERS OF MV ARABELLA V. N.A.I.C (2008) 11 NWLR (Pt. 1097) 182, 207.
The effect of non service or improper service of originating process was stated by the apex Court in HARRY V. MENAKAYA (2017) LPELR-42363 (SC) thus:-
“The law is trite and well settled on the fact that service of the originating process or hearing notice constitutes the foundation on which the whole structure of litigation or appeal is built, and in its absence, the entire proceeding will be rendered void and any decision reached thereon is a nullity. Therefore, the issue of service of an initiating process, be it a Writ of Summons, an Originating Summons, a Notice of Appeal or a Notice of Petition, whether in election matters or in winding-up proceedings et cetera, is so central, fundamental and very germane to the proceedings springing or emanating from such processes. Service is the very pillar or foundation upon which any proceeding is built, before any Court no matter its status…
Apart from the fact that it is a fundamental human right of a party, extracted from his right to fair hearing as entrenched under Section 36 of the Constitution to have an initiating process or hearing notice in respect of any Proceedings served on him, such service or non- service, as the case may goes to the root of the jurisdiction of the adjudicating Court.”
For this reason and the lucid exposition of the law in the lead judgment, I also allow the appeal and abide by all the consequential orders in the lead judgment setting aside suit No. KDH/KAD/340/2019, the judgment of Hon. Justice H.A.L Bagon delivered on 26/11/2019 and as to cost.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, MOJEED A. OWOADE, JCA. I am in agreement with the reasoning and conclusion. It is trite law that the endorsement of a writ meant to be served outside jurisdiction is a mandatory requirement of Section 97 of Sheriffs and Civil Process Act Cap.56 LFN 2004. The failure to endorse the required notice on a writ of summons for service outside Jurisdiction renders the writ of summons and indeed service of the writ invalid and incompetent. Consequently, this appeal is meritorious and it is allowed.
I abide by the consequential order(s) in the lead judgment.
Appearances:
T. A. OLORISADE, ESQ. For Appellant(s)
S. O. ADALACHE, ESQ. For Respondent(s)