ATIKU v. MOHAMMED & ANOR
(2022)LCN/16286(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Thursday, March 10, 2022
CA/K/214/2017
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
ALHAJI HAYATUDDEEN ATIKU APPELANT(S)
And
1. ALH. MOHAMMED NURUDEEN MOHAMMED 2. COMMISSIONER OF POLICE, KADUNA STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE REQUIREMENT TO ENDORSE A WRIT OF SUMMONS TO BE SERVED OUTSIDE JURISDICTION IS SEPERATE AND DISTINCT FROM THE REQUIREMENT OF LEAVE TO SERVE THE PROCESS OUTSIDE JURISDICTION
Perhaps for the umpteenth time, counsel and judicial officers should be reminded that the requirement of endorsement of a writ of summons to be served outside jurisdiction is separate and distinct from the requirement of leave to serve the said processes outside jurisdiction.
Incidentally, both requirements are fundamental to the fate of the proceedings. Indeed by decided authorities, the first, that is the requirement of endorsement on the writ of summons is clearly fatal to the proceedings. PER OWOADE, J.C.A.
WHETHER OR NOT SERVICE OF AN ORIGINATING PROCESS WITHOUT THE ENDORSEMENT RENDERS THE ORIGINATING PROCESS VOID
The Supreme Court re-emphasized the importance and the mandatory nature of the provision of Section 97 of the Sheriffs and Civil Process Act recently in the case of Izeze v. INEC (2018) 11 NWLR (Pt. 1629) 127 – 128 where Rhodes-Vivour JSC held thus:
“When the words used in Section 97 of the Sheriffs and Civil Process Act are given their ordinary plain meaning without embellishments, it becomes very clear that the provision is mandatory. Service of an originating process without the endorsement as clearly stated under Section 97 Supra is not an irregularity. It is a fundamental defect which render the originating process void. See Adegoke Motors Ltd vs. Adesanya & Anor (1989) 20 NSCC (Pt. 11) P.327; (1989) 3 NWLR (Pt. 109) 250, Nwabueze & Anor vs. Justice Obi Okoye (1988) 19 NSCC (Pt. 111) P.53, (1988) 4 NWLR (Pt. 91) 664, Sken Consult (Nig) Ltd vs. Ukey (1981) 12 NSCC P1.
Under Section 97 of the Sheriff and Civil Process Act, if an originating process for service out of jurisdiction does not have the endorsement:
“This summons (or as the case may be) is to be served out of the ….State (as the case may be) ….. and in the …State (or as the case may be)”
Such an originating summons is invalid. PER OWOADE, J.C.A.
REQUIREMENTS TO BE SATISFIED FOR A WRIT OF SUMMONS TO BE SERVED OUT OF JURISDICTION
Indeed, where a writ of summons is to be served out of jurisdiction, the following requirements must be satisfied: (a) it must be endorsed by the address of the defendant where service on him is to be effected out of jurisdiction of the trial Court; (b) a period of not less than thirty days within which the defendants shall answer to the writ of summons shall be granted to him; and (c) except where there are some statutory exemptions, the Plaintiff must obtain leave of Court of a judge in chambers. These are fundamental requirements, breach of which affects the jurisdiction of the Court.
See Kida v. Ogunmola (2006) 13 NWLR (Pt. 997) 377 SC, N.U.B. Ltd v. Samba Vet. Co. Ltd. (2006) 12 NWLR (Pt. 993) 98, Jadcom Ltd. V. Oguns Electricals (2004) 3 NWLR (Pt. 859) 153, Ajibola v. Sogeke (2003) 9 NWLR (Pt. 826) 494. PER OWOADE, 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 presided over by Hon. Justice Hannatu A.L. Balogun and delivered on the 22/11/2016 in Suit No. KDH/KAD/538/2014.
On 11/6/2014, the 1st Respondent as Plaintiff issued a writ of summons accompanied by statement of claim against the Appellant (1st defendant) and the 2nd Respondent (defendant).
The 1st Respondent (plaintiff) claimed against the Appellant/defendant in paragraph 24 of his statement of claim as follows:
“WHEREFORE the Plaintiff claims against the Defendant as follows:
a. AN ORDER cancelling/annulling the purported sale to ALHAJI HAYATUDEEN on the grounds of breach of terms of the sale agreement as contained in the sales agreement dated the 5th day of December, 2003.
b. AN ORDER directing the 1st Defendant to return to the Plaintiff ALL ORIGINAL DOCUMENTS and other documents he collected from the Plaintiff in respect of the said subject of dispute.
c. AN ORDER directing the Plaintiff to refund the sale sum paid in installments to the 1st Defendant.
d. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd Defendants or their agents from further detention or arrests, intimidating and harassing of the Plaintiff in respect of the 4A Dendo/Buba Yaro Road, Kaduna.
e. AN ORDER granting damages of N5,000,000 (Five Million Naira only) for defamation of character of the person of the Plaintiff, and the psychological trauma he was caused by the Defendants against the 1st and 2nd Defendants.
f. Cost of this suit.”
The parties exchanged processes whereby the Appellant defendant filed a counter-claim.
The case of the 1st Respondent who was the Plaintiff at the Court below is that as the beneficial owner of the plot of land known as 4A Dendo/Buba Yaro, Kaduna, he agreed to sell the land to the Appellant for the sum of N1,050,000 (One Million and Fifty Thousand Naira only) wherein the Appellant made part payment of N50,000.00 on 22/10/2003 vide temporary agreement with an understanding that the balance of N1,000,000.00 shall be paid on or before the 30/10/2003.
It is also the case of the 1st Respondent that a sale agreement was executed between himself and the Appellant on trust on 5/12/2003 as the Appellant had not paid the balance of N1,000,000.00 with a promise to pay the balance whenever he gets money and the 1st Respondent handed over the original documents relating to the land on trust which include provisional offer of grant of statutory right of occupancy, offer of grant of statutory right of occupancy, planning possession obtained from KASUPDA.
The 1st Respondent states that by Article 6 of the sale agreement executed between the Appellant and the 1st Respondent, if there is a dispute or problem between the parties, the consideration will be refunded to the 1st Appellant as the purchaser and further maintained that the value of the said land has risen to N20,000,000.00 (Twenty Million Naira).
It is also the case of the 1st Respondent that the Appellant made a false complaint in writing to the 2nd Respondent wherein his reputation was harmed leading to his arrest by the 2nd Respondent.
On the part of the Appellant, his response to the case of the 1st Respondent is that pursuant to the execution of sale agreement on the 5/12/2003, he agreed to pay premium to the Kaduna State Ministry lands, Surveys and Country Planning but maintained that the N650,000.00 was paid on the 25/10/2003 and that the temporary agreement dated 22/10/2003 is dependent on joint inspection by the two parties to ensure that the land is free of any encumbrances.
The Appellant stated that apart from the N1,050,000.00 purchase price paid to the 1st Respondent in relation to the said land, he has parted with over N500,000.00 without having physical possession of the land and the mechanics put on the land by Hajiya Safiya Vatsa refused to vacate the land which led to the Appellant to write a letter of complaint to the 2nd Respondent through his solicitors and same led to the invitation of the Yunusa Ashiru for interrogation and subsequently 1st Respondent was traced to a house located remotely from the main road and upon interrogation by the police, it was discovered that the 1st Respondent is a notorious land speculator and had a lot of land complaints against him.
The 1st Respondent testified in person as PW1 and called two witnesses while the Appellant testified and called a witness. Exhibit P1 – P17 were tendered through PW1 while P16 was equally tendered through PW1 by the Appellant’s counsel. At the conclusion of the evidence of the parties, the written addresses filed by the parties were adopted and judgment delivered on the 22/11/2016 giving rise to the instant appeal.
The Appellant 1st defendant at first filed a Notice of Appeal in this Court dated 23/09/2016 and later filed the extant Amended Notice of Appeal containing ten (10) grounds of appeal on 28/10/2020 but the same was deemed filed on 19/01/2021.
The relevant briefs of argument for this appeal are:
“(i) Appellant’s brief of argument of 22/01/2021. It is settled by A. Bashar Esq.
(ii) 1st Respondent’s brief of argument which was filed on 23/02/2021. It is settled by A.T.U. Ibinola Esq.
(iii) Appellant’s reply brief of argument which was filed on 01/04/2021. It is settled by A. Bashar Esq.”
Learned counsel for the Appellant nominated three (3) issues for determination of the appeal. They are:
“1. WHETHER the trial Court had the requisite jurisdiction over the Appellant having regard to the failure of the 1st Respondent to endorse the writ of summons served on the Appellant as required by Section 97 of the Sheriffs and Civil Process Act?
2. WHETHER the trial Court was justified in granting the reliefs sought by the 1st Respondent and the dismissal of the counter-claim of the Appellant in the light of the evidence led at trial and surrounding circumstances?
3. WHETHER it was right for the trial Court to allow PW2 (Joseph Ezra) to testify without deposition and leave of Court to call him as an additional witness and tender Exhibit 17 which was never pleaded and frontloaded as a document to be relied upon at trial by the 1st Respondent?”
Learned counsel for the Respondent adopted the issues formulated by the Appellant.
On issue 1, learned counsel for the Appellant submitted that the pertinent question to ask is whether there was the requisite endorsement before issuance and service of the writ of summons contained on pages 149 – 151 of the printed record in line with Section 97 of the Sheriffs and Civil Process Act.
He reproduced the provision of Section 97 of the said, Sheriffs and Civil Process Act. He submitted that the provision is mandatory and failure to comply with same is not a mere irregularity but a fundamental defect which renders the originating process void ab initio. He referred to the decision of the Supreme Court per Rhodes-Vivour JSC in Izeze v. INEC (2018) 11 NWLR (Pt. 1629) 110 at 127 – 128.
He submitted that it is not in dispute that on the 1/07/2014, the 1st Respondent as Plaintiff before the trial Court sought for and obtained leave to serve the Appellant as 1st Defendant in Abuja. Even though the writ was issued by the Registrar of the Court below on the 11/6/2014 before leave was granted, the writ served on the Appellant was not issued as a CONCURRENT WRIT for service outside the jurisdiction of the Court below. The days reflected for entering appearance is 21 days as against the 30 days required for service outside jurisdiction.
In any event, said counsel such leave granted pursuant to Sections 98 and 99 for issuance and service of the writ of summons does not validate the non-endorsement of the writ as required under Section 97 of the Sheriffs and Civil Process Act. It is only when there is proper endorsement on the writ of summons that issuance and service follows. he referred again to Izeze vs. INEC (supra) at 129 – 130 H – B, where the Supreme Court held thus:-
“The Court of Appeal was wrong to restrict itself to whether process was properly issued and served on the 1st and 2nd Respondents, oblivious of superior legislation, to wit, the mandatory requirement of compliance with Section 97 of the Sheriffs and Civil Process Act which was not even addressed by the Court. The mandatory requirement of Section 97 of the Sheriffs and Civil Process Act must be complied with before the originating process can be valid. It is only after there is a proper endorsement on the originating process that issuance and service follows. Where, as in this case the originating process is invalid, issuing and serving it is an exercise in futility as you cannot serve a void process.”
He urged us to hold that failure to comply with the provision of Section 97 of the Sheriffs and Civil Process Act had rendered the entire judicial exercise against the Appellant a futile one and that issue 1 be resolved in favour of the Appellant.
Learned counsel for the Respondent submitted that the Appellant had taken steps to file his Memorandum of Appearance and Statement of Defence, he cannot be heard to complain on the irregularity committed by the 1st Respondent.
He has waived his right to raise the procedural breach of Section 97 of the Sheriffs and Civil Process Act.
Learned counsel for the Respondent reminded us that the 1st Respondent who was the Plaintiff at the trial Court sought and was granted leave of Court to serve the Appellant out of jurisdiction on the 1/7/2014 via motion dated 26/6/2014.
1st Respondent’s counsel referred to the case of Mato v. Hember (2018) All FWLR 146 at 183 and further tried to justify the service of the process on the Appellant by the provision of Sections 96 and 103 of the Sheriffs and Civil Process Act.
He regarded the Appellant’s attitude of waiting till judgment was delivered as an after-thought and a waiver of procedural irregularity.
He referred again to the case of Mato v. Hember (2018) All FWLR 146 at 183 and also to the case of Complete Comm. Ltd v. Onoh (1888) 5 NWLR (Pt. 549) 197 at 223.
He concluded on issue 1, that the learned trial Judge was right to have assumed jurisdiction in this case and to have determined the case on merit.
He urged us to resolve issue 1 in favour of the Respondent.
In his reply brief, learned counsel for the Appellant submitted that the reliance by the Respondent on the provision of Sections 96 and 103 of the Sheriffs and Civil Process Act is of no moment to the requisite endorsement to be inserted in a writ of summons for service outside jurisdiction.
He emphasized that non-compliance with condition precedent as it is the case with the provision of Section 97 of the Sheriffs and Civil Process Act is jurisdictional and fatal, more especially as jurisdiction cannot be acquired or conferred by consent or inadvertence of the parties.
He referred to the cases of A.G Federation v. Abubakar (2008) 16 NWLR (Pt. 1112) 135 at 158, George v. S.B.N Plc (2009) 5 NWLR (Pt. 1134) 304 at 318 and Madukolu & Ors v. Nkemdilim (1962) All NLR 587 at 590.
He concluded referring to the decision of the Supreme Court in Omajali v. David (2019) 17 NWLR (Pt. 1702) 438 at 458 per Galumje JSC, that the issue of leave raised in connection with Section 97 of the Sheriffs and Civil Process Act is strange to the provision, service of an originating process without the endorsement as clearly stated under Section 97 is not an irregularity. It is a fundamental defect that renders the originating process void.
The two points contained in the submissions of the learned counsel for the 1st Respondent have been severally considered and decided upon by the apex Court. The first is the belief that the granting of leave to serve outside jurisdiction is a substitute or cure for the requirement of endorsement provided for under Section 97 of the Sheriffs and Civil Process Act. This line of thought is legal fallacy (No.1).
The second argument by the learned counsel for the Respondent which I will term legal fallacy (No.2) is the belief that the failure to comply with the provision of Section 97 of the Sheriffs and Civil Process Act is an irregularity that can be waived by taken further steps in a proceeding.
Perhaps for the umpteenth time, counsel and judicial officers should be reminded that the requirement of endorsement of a writ of summons to be served outside jurisdiction is separate and distinct from the requirement of leave to serve the said processes outside jurisdiction.
Incidentally, both requirements are fundamental to the fate of the proceedings. Indeed by decided authorities, the first, that is the requirement of endorsement on the writ of summons is clearly fatal to the proceedings.
In the instant case, learned counsel for the Appellant rightly observed that there is a misconception on the part of the 1st Respondent on the crux of the issue raised in relation to Section 97 of the Sheriffs and Civil Process Act. That while it is conceded that the 1st Respondent as Plaintiff before the Court below sought for leave to issue and serve the writ of summons outside the jurisdiction of the Court, such leave sought under Sections 98 and 99 of the Act does not cure the defect of failure to insert the necessary endorsement for service outside the territorial boundaries of the State. That the writ of summons served on the Appellant was not issued as a concurrent writ and the days reflected for entering defence is 21 days as against 30 days. Also, that the leave sought for and obtained was granted after the issuance of the writ of summons by the registrar of the Court.
The Supreme Court re-emphasized the importance and the mandatory nature of the provision of Section 97 of the Sheriffs and Civil Process Act recently in the case of Izeze v. INEC (2018) 11 NWLR (Pt. 1629) 127 – 128 where Rhodes-Vivour JSC held thus:
“When the words used in Section 97 of the Sheriffs and Civil Process Act are given their ordinary plain meaning without embellishments, it becomes very clear that the provision is mandatory. Service of an originating process without the endorsement as clearly stated under Section 97 Supra is not an irregularity. It is a fundamental defect which render the originating process void. See Adegoke Motors Ltd vs. Adesanya & Anor (1989) 20 NSCC (Pt. 11) P.327; (1989) 3 NWLR (Pt. 109) 250, Nwabueze & Anor vs. Justice Obi Okoye (1988) 19 NSCC (Pt. 111) P.53, (1988) 4 NWLR (Pt. 91) 664, Sken Consult (Nig) Ltd vs. Ukey (1981) 12 NSCC P1.
Under Section 97 of the Sheriff and Civil Process Act, if an originating process for service out of jurisdiction does not have the endorsement:
“This summons (or as the case may be) is to be served out of the ….State (as the case may be) ….. and in the …State (or as the case may be)”
Such an originating summons is invalid.
It is clear that Section 97 of the Sheriff and Civil Process Act is couched in mandatory terms. The Courts would have no discretion under Section 97 of the Sheriffs and Civil Process Act. Once the claimant fails to comply with the mandatory provision of Section 97 supra, the Court would no longer have jurisdiction to adjudicate on the suit. It is fundamental that the claimant obeys and comply with the provision. No valid appearance can be entered by the defendant to an originating process that does not have the mandatory endorsement except to enter conditional appearance. I have examined the originating summons and the amended originating summons and I am satisfied that they were not endorsed for service on the 1st and 2nd defendants at their addresses in Abuja. The originating process is in the circumstances invalid, worthless and void.”
Peter Odili JSC in the same case of Izeze v. INEC (supra) at 133 puts the matter thus:
“The position taken by the Court below is not sustainable in the light of the clear and unambiguous provisions of Section 97 of Sheriffs and Civil Process Act above quoted being provisions with mandatory stipulations that cannot be bent any way a Court chooses. This Court had explained it and it has remained the law and not yet changed. For effect, I cite the Supreme Court case of Owners Mv “Arabella” vs. NAIC (2008) 11 NWLR (Pt. 1097) 182 at page 207 paras E – F, where Ogbuagu JSC (as he then was) stated that position in these words:
“It is clear that the provisions of Section 97 of the Sheriffs and Civil Process Act are couched in mandatory terms. Any service of writ without proper endorsement as stipulated under Section 97 is not a mere irregularity but a fundamental defect that renders the writ incompetent.
See also NEPA vs. Onah (1997) 1 NWLR (Pt. 484) 680, Adegoke Motors vs. Adesanya (1989) 3 NWLR (Pt. 109) 250, Abacha vs. Fawehinmi (2000) 6 NWLR (Pt. 660) 228.
It follows that what is on ground is already a well cut out pathway which cannot be by-passed for any reason. Therefore the writ of summons having no endorsement on it before service outside jurisdiction from which it is issued, is invalid, null and void, having no effect whatsoever and is irredeemable. Being a fundamental vice, the writ without the prescribed endorsement cannot be regularized in any way or form and cannot be utilized in that defect nature. The issue is definitely resolved in favour of the Appellant and so the Court of Appeal was wrong to hold that defective writ useable.”
Secondly, it is now beyond doubt that failure to endorse writ for service outside the jurisdiction of the Court is not a mere irregularity but a fundamental defect that affects the jurisdiction of the Court.
See e.g. Galumje JSC in Omajali v. David (2019) 17 NWLR (Pt. 1702) 438 at 458.
Indeed, where a writ of summons is to be served out of jurisdiction, the following requirements must be satisfied: (a) it must be endorsed by the address of the defendant where service on him is to be effected out of jurisdiction of the trial Court; (b) a period of not less than thirty days within which the defendants shall answer to the writ of summons shall be granted to him; and (c) except where there are some statutory exemptions, the Plaintiff must obtain leave of Court of a judge in chambers. These are fundamental requirements, breach of which affects the jurisdiction of the Court.
See Kida v. Ogunmola (2006) 13 NWLR (Pt. 997) 377 SC, N.U.B. Ltd v. Samba Vet. Co. Ltd. (2006) 12 NWLR (Pt. 993) 98, Jadcom Ltd. V. Oguns Electricals (2004) 3 NWLR (Pt. 859) 153, Ajibola v. Sogeke (2003) 9 NWLR (Pt. 826) 494.
In the instant case the failure of the 1st Respondent Plaintiff to ensure the endorsement of the writ of summons for service outside jurisdiction having regard to the address for service of the Appellant 1st defendant in Abuja outside the jurisdiction of the Court deprived the trial Court of jurisdiction to hear and determine the case.
Issue 1 is resolved in favour of the Appellant.
Having resolved issue 1 which is jurisdictional in favour of the Appellant, I do not have to consider any other issue(s) raised in this appeal. Issue 1 has turned out to be a determinant issue.
This appeal is meritorious and it is allowed.
The judgment and orders of Hon. Justice Hannatu A. L. Balogun in Suit No. KDH/KAD538/2014 delivered on 22-12-2016 are hereby set aside.
The 1st Respondent’s writ of summons dated 11-06-2014 as contained on page 149 of records is hereby struck out.
N30,000.00 cost is awarded against the 1st Respondent in favour of the Appellant.
BITRUS GYARAZAMA SANGA, J.C.A.: I have read in draft form the judgment just delivered by my learned brother, M. A. Owoade, PJCA. I agree with and adopt as mine the finding and conclusion reached therein that this appeal has merit. The Respondent (Plaintiff at lower Court) failed to strictly comply with the provision of Section 97 of the Sheriffs and Civil Process Act when he served the Appellant (1st Defendant) with writ of summons outside the jurisdiction of the lower Court without endorsing same. This failure by the 1st Respondent goes to the jurisdiction of the lower Court to hear and determine Suit No. KDH/KAD/538/2014 therefore this appeal has merit and I also allow same. I also join my brother in the lead judgment in setting aside the judgment of the lower Court delivered on 22nd December, 2016 and also strike out the incompetent Writ dated 11th June, 2014. I abide by the order as to costs.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
A. BASHAR, ESQ. For Appellant(s)
A.T.U. IBINOLA, ESQ.- For the 1st Respondent For Respondent(s)
