CHAIRMAN AND MEMBERS OF THE SPECIAL INVESTIGATION PANEL OF THE NATIONAL HUMAN RIGHTS & ORS v. THE SHELL PETROLEUM DEVELOPMENT COMPANY (2019)

CHAIRMAN AND MEMBERS OF THE SPECIAL INVESTIGATION PANEL OF THE NATIONAL HUMAN RIGHTS & ORS v. THE SHELL PETROLEUM DEVELOPMENT COMPANY

(2019)LCN/13264(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of May, 2019

CA/C/395/2017

RATIO

SERVICE: IMPROPER SERVICE OF PROCESS AFFECTS JURISDICTION AS IT IS FUNDAMENTAL

Improper service of a process particularly an originating process is fundamental and affects the jurisdiction of the Court. See HARRY VS. MENAKAYA (2017) LPELR-42363 (SC) which held:
“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. In other words, the principle applies evenly whether before inferior Courts, Tribunals, or superior Courts of record. As stringent as the procedures in Military Tribunals are, service of process is made fundamental and nothing can be done outside it. It is no wonder therefore that Rules of Court all over, make adequate and elaborate provisions for service of any initiating process in particular and other processes in general. 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 be goes to the root of the jurisdiction of the adjudicating Court.”PER YARGATA BYENCHIT NIMPAR, J.C.A.

SERVICE: WHEN A WRIT OF SUMMONS IS TO BE SERVED OUTSIDE JURISDICTION

A similar issue came up in the case of WARI & ORS. VS. MOBIL INC OF AMERICA & ANOR. (supra) relied upon by the Respondent and my Lord Garba, JCA had this to say:
“By the combined provisions of Sections 96, 97 and 99 of the Sheriff and Civil Process Act, where a writ of summons is to be served out of the jurisdiction of the issuing State High Court, the following requirements must be satisfied:- (a) the writ must be endorsed with the address at which the defendant is to be served outside jurisdiction, (b) there must be a period of not less than thirty (30) days within which the defendant shall answer to the writ after the date of service (c) except otherwise provided by law, leave of the Court must be obtained for the issue and service of the writ outside jurisdiction. These are fundamental requirements, the breach of which have been held to affect the jurisdiction of the Court. See Jadcom Ltd. vs. Oguns Electrical (2004) 3 NWLR (859) 153; Ajibola vs. Sogeke (supra); Kida vs. Ogunmola (2006) 13 NWLR (997) 377; Owena Bank Plc vs. Olatunji (2002) FWLR (124) 529 at 573.” PER YARGATA BYENCHIT NIMPAR, J.C.A.

SERVICE: WHERE AN ORIGINATING PROCESS IS VALID, THE DEFECT IN SERVICE IS A MERE IRREGULARITY
Furthermore, where the provisions of the Sheriff and Civil Process Act is applicable, the situation is not that simple and straight forward because prior leave to endorsement of the originating process is sine qua non to issuance and before service becomes an important factor as held in the case of IZEZE VS. INEC (2018) LPELR-44284 (SC) thus:
“If an originating process is valid, any defect in service is a mere irregularity which may make such an originating process voidable but certainly not void. When the words used in Section 97 of the Sheriff 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 renders the originating process void. See Adegoke Motors Ltd. Vs. Adesanya & Anor. (1989) 20 NSCC (Pt.II) p.327, Nwabueze & Anor. vs. Justice Obi Okoye (1988) 19 NSCC (Pt. III) p.53. Sken consult (Nig) Ltd. vs. Ukey (1981) 12 NSCC P1. YARGATA BYENCHIT NIMPAR, J.C.A.PER YARGATA BYENCHIT NIMPAR, J.C.A.

SERVICE OUTSIDE JURISDICTION: AN ORIGINATING PROCESS TO BE SERVED OUTSIDE JURISDICTION MUST BE ENDORSED

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 in 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.”
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 when 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 becomes an exercise in futility as you cannot serve a void process. PER YARGATA BYENCHIT NIMPAR, J.C.A.

JUSTICES:

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

1. CHAIRMAN AND MEMBERS OF THE SPECIAL INVESTIGATION PANEL OF THE NATIONAL HUMAN RIGHTS COMMISSION ON OIL SPILLS & ENVIRONMENTAL POLLUTION
2. THE NATIONAL HUMAN RIGHTS COMMISSION
3. AKWA IBOM PROD. DEV. NETWORK (AKIPCON ) – Appellant(s)

AND

THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED – Respondent(s)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading): This appeal is against the judgment of the Federal High Court sitting at Uyo delivered on the 26th April, 2017 Coram: Hon. Justice R. O. Riman wherein the trial Court quashed the proceedings of the 1st Appellant and prohibited it from further proceeding on the ground that the Proceedings were ultra vires and in disregard of the rules of natural justice and fair hearing.

The 1st Appellant set up by the 2nd Appellant as a special panel to investigate the human rights implications of oil spill and environmental pollution, it published a notice calling for submissions from a number of bodies in about four states in the Niger-Delta area. The 3rd Appellant also presented a memorandum to the special panel and the Respondent which was not initially served received a hearing notice accompanied by a format of presentation before the 1st Appellant. That prompted the Respondent to apply for an order of judicial review particularly the following orders:
i. An order of judicial review of the proceedings of the 1st Respondent on Complaint No. C/2016/56709/HQ/ of 2016: AKWA IBOM PROD. DEV

NETWORK COMPANY OF NIGERIA LIMITED in terms of the reliefs and grounds set out in the statement in support of the application.
ii. A declaration that the Human Right Commission Act 2005 as Amended does not confer statutory power on the 2nd Respondent to set up the 1st Respondent to exercise judicial function of determining liability of the Applicant in respect of oil spill and environment pollution.
iii. A declaration that the proceedings of the 1st Respondent in Complaint No. C/2016/569709/HQ/ of 2016: AKWA IBOM PROD. DEV. NETWORK (AKIPCON) VS. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED to determine the liability of the Applicant for oil spill and environment pollution is ultra vires the powers conferred on the 2nd Respondent by the Human Right Commission Act 2005 as amended.
iv. A declaration that by virtue of Section 251 of the Constitution of the Federal Republic of Nigeria 1999 as Amended the Federal High Court is vested with exclusive jurisdiction to the exclusion of the 1st and 2nd Respondents in the determination of the matters and issues in Complaint No. C/2016/569709/HQ of 2016: AKWA IBOM PROD. DEV. NETWORK (AKIPCON)

VS. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED.
v. A declaration that the procedure adopted by the 2nd Respondent in Complaint No. C/2016/569709 HQ of 2016: AKWA IBOM PROD. DEV. NETWORK (AKIPCON) VS. THE SHELL PETROLEUM DEVELOPMENT OF NIGERIA LIMITED is a negation of the rules of natural justice and a flagrant violation of the Applicants right to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria as Amended.
vi. An order of certiorari bringing into this Court the proceedings and/or decision of the 1st Respondent on complaint No. C/2016/569709/HQ of 2016: AKWA IBOM PROD. DEV. COMPANY OF NIGERIA LIMITED and quashing same for inter alia being decisions made ultra vires the power of the 1st and 2nd Respondents and in complete disregard of the rules of natural justice and fair hearing.
vii. An order of Prohibition restraining the 1st and 2nd Respondent from further proceedings with Complaint No. C/2016/569709/HQ of 2016: AKWA IBOM PROD. DEV. COMPANY OF NIGERIA LIMITED.
The application was contested and the 1st and 2nd Appellants filed a preliminary objection on the following

grounds:
a. Whether the failure of the Applicant to serve a one month pre-action notice on the 2nd Respondent is fatal to the originating summons.
b. Whether the failure of the Applicant to comply with the mandatory provisions of Order 4 Rules 5(1) (c ) & (2) (c ) & Order 34 (Civil Procedure) Rules 2009 is fatal to their Originating motion.
c. Whether the Applicant can predicate its action against the Respondents on an unknown or none existent law.
d. Whether the none exhibition of the 1st Respondents record of proceedings is fatal to the originating motion.
e. Whether the originating motion is properly issued and served on the 2nd Respondent.

Both the originating summons and the preliminary objection were taken together and ruling and judgment delivered same day wherein the Court below dismissed grounds 1-4 of the preliminary objection and upheld the 5th ground that the originating motion was not properly served on the 2nd Appellant and proceeded to strike out the name of the 2nd Appellant from the application. It went on to determine the originating summons and held that Proceedings of the Appellant in Complaint

Number. C/2016/569709/HQ of 2016: AKWA IBOM PROD. DEV. COMPANY LIMITED (APIKCON) NETWORK VS. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED was ultra vires and in complete disregard of the rules of natural justice and fair hearing. Consequently, the trial Court granted the reliefs claimed by the Respondent thus this appeal.

The Appellant dissatisfied with the decision filed a Notice of Appeal on the 17th July, 2017 setting out 9 grounds of Appeal.

The Appellants Brief settled by C. A. GBEHE ESQ., is dated 3rd day of December, 2017 filed on the 7th day of December, 2017. It distilled five issues as follows:
i. Whether the lower Court was right to have proceeded to hear the Originating Motion, after holding that the 2nd Appellant was not properly served with the Originating Processes, and suo motu struck out its name from the Originating Motion.
ii. Whether the 1st and 2nd Appellants acted ultra vires their powers.
iii. Whether the Respondents right to fair hearing was violated by the 1st and 2nd Appellants.
iv. Whether the lower Court was right by entering judgment in favour of the Applicant/Respondent

and granting all reliefs claimed by it.
v. Whether a body set up pursuant to statutory provisions, to carry out investigations can be regarded as usurping the judicial powers of the Courts, particularly that the Federal High Court .

The Respondents Brief settled by JERRY ELUMEZE ESQ., is dated 23rd April, 2018 filed on the 25th April, 2018 and it adopted the issues formulated by the Appellants. The Court shall also adopt the said issues for determination in this appeal.

ISSUE ONE
Whether the lower Court was right to have proceeded to hear the Originating Motion, after holding that the 2nd Appellant was not properly served with the Originating Processes, and suo motu struck out its name from the Originating Motion.

Arguing the first issue the Appellants submitted that the Court below erred in proceeding to determine the originating summons of the Respondent after making a finding that the 2nd Appellant was not properly served and set aside the service for contravening Section 97 of the Sheriff and Civil Process Act and instead of ordering fresh service on the 2nd Appellant, the Court suo motu struck out the name of the 2nd

Appellant and proceeded against the 1st Appellant who is not a creation of law. That by the provision of Section 1(2) of the National Human Rights Commission Act, 1995 the 2nd Appellant was bestowed with legal personality and the 1st Appellant is a creation of the 2nd Appellant and therefore the 1st Appellant does not have a separate personality from the 2nd Appellant and the Respondent did not name the individual persons who constitute the committee. Furthermore, that the Respondent did not sue the 1st Appellant in its proper name. Appellants contended that the 1st Appellant is made up of several people and their individual names must be mentioned, furthermore that the 2nd Appellant is a necessary party because all the reliefs affect it and they were granted behind its back and therefore the originating motion failed. Arguing further the Appellants submitted that they were not heard before the 2nd Appellants name was struck out and therefore the Court erred, citing FLORENCE OLUSANYA VS. OLUFEMI OLUSANYA (1983) 3 SC 41 and YEKINI ABBASS & ORS. VS. MOGAJI (2001) 7 NSCQR 44.

The Respondent on issue one submitted that the issue does not arise from

the complaint in ground 2 and 4 of the grounds of appeal as the issue of the Court suo motu striking out the name of the 2nd Appellant was not made part of the said grounds 2 and 4. Learned counsel submitted that the law is settled that any issue that does not arise from the ground of appeal is liable to be struck out, citingFABIYI VS. ADENIYI (2000) 6 NWLR (PT. 662) 532. And that grounds 2 and 4 should also be struck out for not having any issue distilled from them, relied on OGUN VS. ASEMAH (2002) 4 NWLR (PT. 756) 208.

On the failure to seek leave to serve the 2nd Appellant at its office in Abuja, the Respondent argued that their opinion was that there was only one Federal High Court and therefore there was no need for leave to serve in Abuja and no authority was cited in support of the Appellants submissions because service of processes under Order 6 Rule 17 of the Rules of the Court below applies to service of processes out of Nigeria and service of processes from one state to another is covered by Section 97 and 98 of the Sheriff and Civil process Act. He relied on WARI & ORS VS. MOBIL INC OF AMERICA & ANOR. (2013) LPELR where this

Court interpreted Order 6 Rule 17 of the Federal High Court Rules, 2009 and the trial Court upheld that time of submission but in a volte face held that the 2nd Appellant was not properly served in Abuja because no leave of Court was sought and obtained. The Respondent argued further that Section 97 and 98 of the Sheriff and Civil Process Act does not require leave to issue and service but merely to endorse the process for service out of jurisdiction and it is that leave that was not obtained thus informed the setting aside of the service.

Continuing the Respondent submitted that the aggrieved party in the order setting aside service was the Respondent and therefore the Appellants cannot attack that part of the ruling. On the striking out of the name of the 2nd Appellant, the Respondent argued that the argument of the Appellants is unsupportable in law because there is a distinction between raising an issue suo motu and making a consequential order. He submitted that in raising an issue suo motu the Court is bound to call on parties to address it, citing ADEGOKE VS. ADIBI & ANOR. (1992) LPLER-95(SC). Learned counsel argued that there is no

requirement of law that a Court cannot make a consequential order without calling on parties to address it before doing so. It referred to the definition of a consequential order in AWONIYI & ORS. VS. The REGISTERED TRUSTEES OF AMORC (NIG) (2000) LPELR- 655 (SC) to submit that the order striking out the name of the 2nd Appellant was a consequential order and it would have been improper for the Court to continue to determine the originating summons heard together with Preliminary objection, moreso the 1st and 3rd Appellants have no grievance with the order. Respondent submitted that the argument that reliefs granted touched on the 2nd Appellant majorly is not borne out by the reliefs named in the originating summons because the 2nd Appellant was only joined because it set up the 1st Appellant and therefore it was a proper party and not a necessary party that striking out its name will vitiate the proceedings. Furthermore, that the 1st Appellant which does not have a legal personality cannot stand alone without the 2nd Respondent though sued separately because the 2nd Appellant is a juristic personality under the Act establishing it, citing KWAGE & ORS.

VS. UPPER SHARIA COURT GWANDU (2017) LPELR-42508(CA) to submit that a body performing important functions are bestowed with legal personality to obviate injustice to a party and also the case of CHAIRMAN EFCC VS. LITLLE CHILD (2016) 3 NWLR (Pt. 1498) 79.

Arguing further, the Respondent submitted that the Appellants complained that the 1st Appellant was not properly sued in its name, but that is not supported by any ground of appeal and it is not a body corporate consequently, it has no particular name known in law by which it must be sued and that they merely reproduced the name on the complaint of the 3rd Appellant. It urged the Court to resolve the issue in favour of the Respondent.

RESOLUTION
Issue one as argued has the coloration of a jurisdictional challenge and as expected, it must be resolved from the onset before any step can be taken in the appeal. The Appellants questioned the competence of the trial Court to proceed to determine the originating summons when it held that the 2nd Respondent was not properly served and on its own volition struck out its name instead of ordering for proper service. Improper service of a process

particularly an originating process is fundamental and affects the jurisdiction of the Court. See HARRY VS. MENAKAYA (2017) LPELR-42363 (SC) which held:
“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. In other words, the principle applies evenly whether before inferior Courts, Tribunals, or superior Courts of record. As stringent as the procedures in Military Tribunals are, service of process is made fundamental and nothing can be done outside it. It is no wonder

therefore that Rules of Court all over, make adequate and elaborate provisions for service of any initiating process in particular and other processes in general. 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 be goes to the root of the jurisdiction of the adjudicating Court.”
The fundamental aspect of the issue here is the fact that the said 2nd Appellant was to be served out of jurisdiction. The Court below found the service effected on the 2nd Appellant defective, it held thus:
however, the service of the writ of summons in this suit on the 2nd defendant without prior leave of this Court in contravention of Section 97 of the Sheriff and Civil Process Act is hereby set aside.
And again at pages 327 it said:
In the circumstances, having set aside the service of the writ of summons in this suit on the 2nd Defendant, the name of the

2nd defendant is hereby struck out. In conclusion, judgment is entered as follows
The Appellants have no quarrel with the order setting aside service but what the trial Court did upon that finding. The Court below set aside the defective service and struck out the name of the 2nd Appellant. They contended that the proper step to take when a Court finds that service is defective is to set the said service aside. However, there is a world of a difference between a validly issued writ with defective service and a writ which is inherently defective with also a defective mode of service. It is settled that a defective service of a valid originating process does not render the process incompetent so as to affect the jurisdiction of a Court to adjudicate over the process and in such a situation, the Court is seized of the requisite jurisdiction to set aside the defective service and order for proper service of a process validly and properly issued in accordance with the rules of Court. However, jurisdiction is affected when a condition precedent to issuance of the writ is not fulfilled. One of the contentions before the trial Court was whether the

required protocol to issuing a writ for service out of jurisdiction was complied with before the service of the originating motion on the 2nd Appellant in Abuja bringing into play the Sheriff and Civil Process Act and Order 6 Rule 13 of the Rules of the Court below. Fundamentally, the specific area identified is endorsement of the process and prior leave of Court as preconditions to the issuance of a writ for service out of jurisdiction. The Respondent contended that leave is not required because Order 6 Rule 17 of the Court below refers to service outside Nigeria. The issue of due service comes after a writ has been properly issued and not before.
A similar issue came up in the case of WARI & ORS. VS. MOBIL INC OF AMERICA & ANOR. (supra) relied upon by the Respondent and my Lord Garba, JCA had this to say:
“By the combined provisions of Sections 96, 97 and 99 of the Sheriff and Civil Process Act, where a writ of summons is to be served out of the jurisdiction of the issuing State High Court, the following requirements must be satisfied:- (a) the writ must be endorsed with the address at which the defendant is to be served outside

jurisdiction, (b) there must be a period of not less than thirty (30) days within which the defendant shall answer to the writ after the date of service (c) except otherwise provided by law, leave of the Court must be obtained for the issue and service of the writ outside jurisdiction. These are fundamental requirements, the breach of which have been held to affect the jurisdiction of the Court. See Jadcom Ltd. vs. Oguns Electrical (2004) 3 NWLR (859) 153; Ajibola vs. Sogeke (supra); Kida vs. Ogunmola (2006) 13 NWLR (997) 377; Owena Bank Plc vs. Olatunji (2002) FWLR (124) 529 at 573.”
It is clear and established that there was no leave to issue and serve the originating summons here on the 2nd Respondent in Abuja and from the decision relied upon above, leave of Court is fundamental and affects the jurisdiction of the Court. It is absent in this case. The Court below dealt with a superficial issue of service and ignored the fundamental question of prior leave which affect the competence of the Court to proceed with the matter. It is only when a writ is properly issued that it can be served on the party named therein. When such a writ is void for failing to

comply with a condition precedent, then the question of service becomes futile.
Furthermore, where the provisions of the Sheriff and Civil Process Act is applicable, the situation is not that simple and straight forward because prior leave to endorsement of the originating process is sine qua non to issuance and before service becomes an important factor as held in the case of IZEZE VS. INEC (2018) LPELR-44284 (SC) thus:
“If an originating process is valid, any defect in service is a mere irregularity which may make such an originating process voidable but certainly not void. When the words used in Section 97 of the Sheriff 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 renders the originating process void. See Adegoke Motors Ltd. Vs. Adesanya & Anor. (1989) 20 NSCC (Pt.II) p.327, Nwabueze & Anor. vs. Justice Obi Okoye (1988) 19 NSCC (Pt. III) p.53. 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 in 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.”
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 when 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 becomes an exercise in futility as you cannot serve a void

process. The Rules of the Court below can only come into play after substantive provisions of the Sheriff and Civil Process Act have been complied with where applicable as in this case. Rules of Court are subsidiary to an act of the National Assembly.
I have carefully examined the originating motion filed and served on the 2nd Appellant in Abuja and there is no endorsement as required by Section 97 of the Sheriff and Civil Process Act, therefore a condition precedent was not fulfilled. There was also no leave sought and obtained and consequently, the Court below lacked the jurisdiction to determine the claim of the Respondent. It therefore means one of the 3 features to bestowing jurisdiction as named in MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341 was not fulfilled thus leaving the Court without competence to handle the claim. The Appeal is meritorious and it is allowed.
Consequently, the only duty left is to perform the necessary rites of putting the originating summons to rest, it must be struck out for being incompetent and the Court lacks jurisdiction. The judgment of the Court below delivered on the 26th April, 2017 is hereby set aside for

lack of jurisdiction. In the face of these findings, the other issues cannot be determined because this Court too lacks jurisdiction to proceed beyond here.
Each party to bear its cost.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my Learned brother Yargata Byenchit Nimpar, JCA. I totally agree with His Lordship that service of process is fundamental to the assumption of jurisdiction of any Court of law. I also allow the appeal.
I abide with the consequential orders and the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: had I have the advantage of reading in draft the Judgment Just delivered by my learned brother, YARGATA B. NIMPAR, JCA. I agree that non-compliance with mandatory requirements of the law is a fundamental breach which vitiates the Courts Jurisdiction to hear and determine the suit.
The term “shall”, in the context of Section 97 of the Sheriffs and Civil Process Act, appears to mean and can be understood as conveying the message that a Writ of Summons to which the provision of the section relate, should be

endorsed. Thus, endorsement is part and parcel of the writ of summons and without it the writ is both defective and incompetent as the endorsement is not a procedural requirement that could be treated as irregularity capable of being cured by the Registrar. See MV ARABELLA V NAIC (2008) 11 NWLR (Pt 1097) 182, CHIDOBI V UJIEZE (1994) 2 NWLR (pt 328) 554, MITI V NNB PLC (1997) 3 NWLR (pt 496) 737, NEPA VONAH (1997) 1 NWLR (Pt 484) 680 and NPA V EYAMBA (2005) 13 NWLR (pt 939) 409.
Consequently, the writ of summons giving birth to this appeal is incurably bad, null and void and therefore derobed the trial Court its Jurisdiction.

In the result, I also allow the appeal and abide completely with the consequential orders.

Appearances:

Etim Effiom, Esq. For Appellant(s)

E. E. Efon, Esq. holding brief of Dr. Osanakpo, Esq. For Respondent(s)

Appearances

Etim Effiom, Esq. For Appellant

AND

E. E. Efon, Esq. holding broef of Dr. Osanakpo, Esq. For Respondent