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ENGR. KABIRU SALLAU & ANOR v. ALHAJI ADAMU UMAR (2019)

ENGR. KABIRU SALLAU & ANOR v. ALHAJI ADAMU UMAR

(2019)LCN/13511(CA)

In The Court of Appeal of Nigeria

On Monday, the 17th day of June, 2019

CA/J/483/2018

 

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

1. ENGR. KABIRU SALLAU & ANOR
2. ALH. MUSA MUSAKO Appellant(s)

AND

ALHAJI ADAMU UMAR Respondent(s)

RATIO

WHETHER OR NOT SERVICE OF AN ORIGINATING PROCESS WITHOUT THE ENDORSEMENT IS AN IRREGULARITY

It was held by apex Court in Izeze v INEC (supra) at page 127 that 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 v Adesanya & Anor (1989) 20 NSCC (Pt.11) 327, (1989 )3 NWLR (Pt.109) 250 Nwabueze & Anor v Justice Obi Okoye (1988)19 NSCC (Pt.111) 53, (1988)4 NWLR (Pt.91) 664; Sken Consult (Nig.) Ltd v Ukey (1981)12 NSCC page 1; D.E.N.E Ltd v Trans Ind. Bank Ltd (2008)18 NWLR (Pt.1119) 399 and Izeze v INEC (2018)11 NWLR (Pt.1629) 110. PER MSHELIA, J.C.A.

THE ESSENCE OF COURT FORMS

The position of the Supreme Court and of this Court over the years is, and has been, that Court forms are only meant to be guides and need not be rigidly followed and that the concern of a Court of law at all times must be the substantial justice of a matter rather than rigid adherence to technicalities ? Bucknor Macleans Vs Inlaks Ltd (1980) ALL NLR 184, Pharmacist Board of Nigeria vs Adegbesote (1986) 5 NWLR (Pt 44) 707, Bajoga Vs Government of the Federal Republic of Nigeria (2008) 1 NWLR (Pt 1067) 85, Aliyu Vs Intercontinental Bank Plc (2013) LPELR 20716(CA), The Board of Management Federal Medical Center Vs Abakume (2015) LPELR 24786(CA), Mancha Vs Emukowate (2017) LPFLR 43113(CA), The Attorney General, Akwa Ibom State Vs Akadiaha ? (2019) LPELR 46845(CA). ‘This point was succinctly made by Niki Tobi, JCA (as he then was) in the case of Okpetu Vs Commissioner of Police, Delta state (2001) FWLR (Pt 69) 1317, cited by Counsel to the first Respondent, at page 1333 thus:
Court forms are generally guides and counsel are free to tailor them to the immediate needs of any matter. If the output of the tailoring exercise is in substantial conformity with the form and does not in any way mislead the adverse party or the Court, Courts of law will not raise their eyebrows of disapproval?.Courts of law should not be weighed down with technical and abstract rules of Court by way of Court forms at the expense of examining the merits of the case on the scales of justice. They should try as much as they can to underplay rules of Court when they come in direct confrontation with justice and fair play. They should lean in favour of justice than following barren rules of Court, which are not helpful. The point is not made that the Courts should have no regard for their own rules. No. That is not the point made. It will be foolish to suggest that. If the rules, and, therefore in our con the forms, are made for the Courts, and they are, then the Courts are under a duty to enforce them. But the moment their enforcement antagonizes justice or tries to ruin justice, then the Courts should choose the path of justice.” PER ABIRU, J.C.A.

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Bauchi State High Court presided over by Hon. Justice K.N Hamidu delivered on the 14/06/2017.

The Respondent herein as plaintiff commenced an action before the High Court by Writ of Summons dated 11th day of April, 2016 and Statement of claim against the defendants now Appellants claiming ?the following reliefs.
a) AN ORDER directing the defendants to surrender the BMW X Drive?s Spare key being the spare key of the BMW X Drive the plaintiff bought from the Defendants.
b) AN ORDER directing the defendant to bring to the plaintiff the Mercedes be bought from the Defendants; OR
c) ALTERNATIVELY pay to the Plaintiff the sum of N9,000,000.00 (Nine Million Naira only) the payment made to the defendant for the Mercedes.
d) AN ORDER directing the Defendants to bring back to the plaintiff his convertible BMW the Defendants took from the plaintiff.
e) AN ORDER directing the defendants to pay the sum of N300,000.00 (Three Hundred Thousand Naira only) being solicitors professional fees for prosecuting this

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suit.
f) AN ORDER FOR THE AWARD OF N1,000,000.00 (One Million Naira) only damages for the damage the plaintiff suffered in the course of the transaction.
g) Cost of this action.
?
From the record, on 18/04/2016 Respondent (plaintiff) applied by motion exparte leave to serve the Writ of Summons on 2nd Defendant at Kaduna, outside jurisdiction. On 28/04/2016 the Court granted the application. Effort was made to serve 1st Defendant but it was not possible because he was absent. On 31/5/2016 a motion for substituted service against the 1st defendant was filed on 01/06/2016 and the Court granted same. On 20/06/2016 A. R Mohammed Esq. appeared for the Plaintiff and informed Court that defendants approached plaintiff for out of Court settlement. The matter was further adjourned to 11/06/2016 for report of settlement. When the matter came up for settlement, the plaintiff?s counsel informed the Court that the settlement has failed. On 08/12/2016 one Nasara Joshua Esq. appeared on behalf of 1st Defendant/Respondent. The matter was adjourned to 08/12/2016 since 2nd defendant was not serve with the hearing notice. On 20/02/2017 both counsel for

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parties were in Court and pending motion praying for order of substituted service on 2nd defendant was adjourned 08/03/2017. On 05/04/2017 2nd defendant was duly served by substituted service, so the Court granted application filed by 1st Defendant?s counsel Nasara Joshua to withdraw his appearance. The Court made an order for service of hearing notice on 1st defendant personally. After several adjournment the motion exparte for substituted service on 1st defendant was moved by plaintiff?s counsel and granted by the Court. The matter was adjourned to 14/06/2017 for mention. The matter came up on 14/06/2017 and the Court having satisfied itself that there was prove of service entered Judgment in favour of the plaintiff pursuant to Order 27 Rule 8(1) of the Bauchi State High Court Civil Procedure Rules, 1987. Not happy with the decision on 20/06/2018 Appellant?s filed a motion on notice asking the Court to set aside the decision for want of valid service of Court processes and stay of execution. Respondent?s counsel Abdulhamid Esq. responded and motion was adjourned to 24/10/2018 for Ruling. On 24/10/2018 the learned trial Judge in

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a considered ruling dismissed the application hence this appeal.

Appellants dissatisfied with the decision lodged an appeal to this Court vide their Notice of Appeal dated 25/10/2018 and filed on 26/10/2018 containing five grounds of appeal.

In compliance with the rules of Court parties exchanged their respective briefs of argument. Appellants? Brief of Argument settled by Dahiru Abdulhameed Esq. A. Alkali Esq., S.F. Dashe Esq., Ubaidullah Mohammed Esq. and M.I Fanto Esq was dated 14/01/2019 and filed on same date. The Respondent?s Brief of Argument settled by Kamal A.R. Mohammed Esq. was dated 14/02/2019 and filed on same date. A Reply brief was filed on 01/03/2019 by the Appellants. When the appeal came up for hearing both counsel adopted their respective briefs of argument. Appellants? counsel urged the Court to allow the appeal while Respondent?s counsel urged the Court to dismiss the appeal. The Appellants distilled four issues for determination as follows:
1. Whether the trial Court was right in holding that none compliance with the rules of Court and the provisions of the Sheriff and Civil Process Act requesting

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leave and or endorsement for service outside jurisdiction does not go to the competence of the writ but mere irregularity incapable of nullifying the proceedings before it? (Grounds One and Two of the Appeal).
2. Whether the trial Court was right in holding that from the processes before it the 2nd Appellant was duly served with the Writ of Summons as stated in its Judgment and therefore functus officio on such issue of service? (Ground Three of the Appeal).
3. Whether in the circumstances of this case the trial Court has not misdirected itself and misconceived the application of the Appellants before it when it held at page 176 of the printed record of appeal thus:?
?In an application to set aside a Judgment where an applicant fails or neglect to Exhibit a proposed statement of defence to an application for an order to set aside a default Judgment it cannot be granted that indulgence because he must satisfy the Court, that he has a defence on the merit before he can be allowed to defend the action. See Ogolo v Ogolo (2006) 10 WLR 92 per Onnoghen JSC pg. 112 lines 20-25. In the instant case no statement of defence was attached to the

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application and therefore incompetent and I so hold (Grounds Four of the Appeal.
4. Whether the procedure adopted by the trial Court in the conduct of its proceedings between the Appellants and the Respondent before it was not such as to deprive its decision or Judgment the character of a legitimate adjudication (Grounds Five of the Appeal).

On the part of the Respondent a sole issue was formulated thus:
?Whether the lower Court was right in dismissing the appellants? application to set aside its Judgment?.

I have examined all the issues formulated by the Appellants and the Respondent. I will adopt that of the Appellant since he filed the appeal. The Respondent?s argument will be taken note of while resolving the issues raised by the Appellants. For convenience I will treat issue one alone, while issues 2-4 will be treated together.
?
ISSUE 1
In arguing issue one learned counsel submitted that the trial Court was apparently wrong when it clearly held in its decision on the appellants application before it that failure to comply with the rules of Court and the provisions of the Sheriff and Civil Process

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Act requesting leave or endorsement as to service outside jurisdiction does not go to the competence of the Writ filed by the Respondent but mere irregularity and not capable of nullifying its proceedings. Counsel submitted that the position of the law is very clear particularly considering the most recent Supreme Court cases that failure to comply with the provisions of Sheriffs and Civil Process Act requiring endorsement on a Writ for service outside jurisdiction is mandatory and any writ without such endorsement is null and void. That any subsequent proceeding in consequence of such writ is also null and void as it is not a mere irregularity but a fundamental defect that goes to the root of the case. Reliance placed on Izeze v INEC (2018) NWLR (Pt.1629) 110 at 113-115 ratio 1 & 2, PDP v INEC 2018)12 NWLR (Pt.1634) 533 at 537 ratio 1 & 2. Counsel further referred to many other judicial authorities in both apex Court and Supreme Court. That such invalidity of the writ without the mandatory endorsement cannot be cured or waived as wrongly thought of by the trial Court, notwithstanding subsequent appearance or taking steps by the defendant in the

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proceedings. See Ohi v Mobil Oil (Nig.) Ltd (1991) 7 NWLR (Pt.206) 700 at 701-702 ratio 3, PDP v INEC (supra) at 537 ratios 1 & 2 and Izeze v INEC supra at 116 ratio 6 wherein it was held that it is only after there is a proper endorsement on the originating process that issuance and service follow. Counsel submitted that where originating process is invalid as in this instant case issuing and serving it is an effort in futility as you cannot serve an invalid process. He urged the Court to so hold. Learned counsel contended that the trial Court ignored the judicial authorities cited by appellants and erroneously assumed jurisdiction over the invalid writ filed by the respondent before it. That the trial Court also wrongly held that such endorsement on the respondent?s writ of summons is not the fault of the respondent but that of its registrar and hence it cannot visit the sin of its registrar on the respondent. Counsel argued that it is not every fault of the registrar that cannot be visited on the claimant, particularly where the claimant is contributory to the commission of the fault i.e by not preparing his process to be competent as in the

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instant case. Reliance placed on Okpe v Fan Milk Plc (2017) 12 NWLR (1549) 282 at 292 R. 13.

It was further submitted that the trial Court erred when it failed to uphold the argument of the appellants before it regarding failure to comply with its rules as provided by Order 5 Rule 8(1) of the High Court Rules of Bauchi State, requiring endorsement as to service on the writ by bailiff after effecting service of originating process. That failure to comply with Order 5 Rule 8(1) is a fundamental defect that goes to the validity of the writ itself and any proceeding or action taken on such writ of summons including the Court?s Judgment is null and void. See Leadership News Papers Group Ltd v Mantu (2017) 2 NWLR (pt.1548) 15 at 23-24 Ratio 9. In other words the defect is fundamental. That trial Court ignored the appellants? submission and wrongly assumed jurisdiction over the respondent?s writ of summons without such endorsement. See page 2 of printed record. On importance of originating process and effect of defective originating process on Court, counsel referred to the case of Okpe v Fan Milk Plc (supra) at 290 ratio 9. He urged the Court

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to resolve issue No. 1 in favour of the Appellants.
?
ISSUES 2-4
Under issue 2 learned counsel submitted that the trial Court was wrong when it held that the 2nd Appellant was duly served with the Writ of Summons and that having said this in its judgment it has become functus officio. That the trial Court totally misconceived by the nature of appellants? application before it challenging want of service of Court process on the applicants. Counsel submitted that without a valid writ there can be no proper service of same. SeeIzeze v INEC (supra) and PDP v INEC (supra) at same pages. Counsel referred to 2nd appellant, who according to him was allegedly served with the Writ of Summons by throwing at Kaduna State outside the territorial jurisdiction of the trial Court without any prior leave of Court granted for substituted service of the originating processes. That there cannot be valid service of process on him as wrongly held by trial Court. According to counsel trial Court was wrong in holding that it became functus officio to consider the complaint of service put before it by the appellants. That service or improper service of

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process is a fundamental defect that goes to the competence of Court assuming jurisdiction. That whenever a Court discovered that a party to a proceeding before it has not been served or properly served with its process, it has the inherent power to set aside such proceeding conducted without proper service on the application of person affected thereof without the necessity of going on appeal. Cited in aid Adeyemi Bero v L.S.D.P.C (2013) 8 NWLR (Pt.1356) 238 at 252-254 ratios 13 & 14, Adebayo v PDP (2013) 17 NWLR (Pt.1382) 1 at 22 ratio 21 etc. According to counsel the Appellants sought for the Judgment to be set aside simply for being a nullity and want of valid service of Court process. See page 85 of record. That in determining the application the Court cannot be functus officio, because at this point the Court was not invited to determine the merit of the case rather its validity or otherwise. On when a Court is functus officio see Ukachukwu v UBA (2005) 18 NWLR (Pt.956) 1 at 54-55 ratios 1 and 2. Counsel maintained that the purported substituted service effected on the 2nd appellant outside jurisdiction, though not known to law was not even

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predicated on any prior leave of Court for substituted service as contemplated under Order 12 Rule 5 of the Bauchi State High Court (Civil Procedure) Rules. That substituted service without leave of Court even if within jurisdiction is an invalid service. See Ihedioha v Okorocha (2016) 1 NWLR (Pt.1492) 147 at 158 R 9. According to counsel the subsequent leave of Court granted by the trial Court to serve the 2nd Appellant by substituted means at the Notice Board of the High Court of Justice Bauchi State was only in respect of amended statement of claim and hearing notice and not the originating process. That the originating process was purportedly served on the 2nd Appellant on the 6th May 2016. See page 107 of the record. While the grant of the substituted service of the amended statement on 2nd appellant was made on the 20th February 2017. See page 56 of record. On procedure for service by substituted means and effect of defect in it. See Emeka v Okoroafor (2017)11 NWLR (pt.1577) 140 at 435 Ratio 19. Counsel further submitted that the trial Court was wrong to dismiss the application after declaring the application incompetent, same should have been struck out.

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He urged Court to resolve this issue in favour of Appellants.

As regards issue 3 counsel submitted that the trial Court totally misconceived and misplaced itself on the nature of the appellant?s application before it, when it held that the appellants neglected to exhibit a proposed defence to their application so they cannot be allowed to defend the action, relying on Ogolo v Ogolo page 176 paras 2 & 3 of record.
That it is abundantly clear that the Appellants application was not seeking to set aside the judgment of the trial Court for being default judgment as wrongly thought of by the trial Court but for being a nullity and for want of proper service of Court processes on the Appellants. See MULTICHEM IND.LTD V. MUSA (2013) 8 NELR (PT.1356) 405 at 407 ? 408 Ratio l. That the Appellants application seeking to set aside the judgment of the trial Court was not premised on the ground of having defence to the action but rather the decision was invalid and illegal hence he argued that the choice of the Appellants to come by way of application instead of appealing against the Judgment of the trial Court is predicated on the premise that

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the judgment did not exist due to lack of jurisdiction reliance placed on Nigeria Breweries Plc v. Dumuje (2016) 8 NWLR (PT. 1515) 536 at 549 ratios 1 and 2.

Learned Counsel further submitted that it cannot be said that the Appellants brought their application not timeously as wrongly held by the trial Court. That Applicants/Appellants clearly deposed that they were not aware of the judgment of the trial Court until there was attempt to execute the Judgment. That immediately upon getting wind of the subsistence of the judgment that they filed their application in Court. That it is not the length of time that matters but the ground for bringing the application out of time. See Ngere v. Okumket supra at 16 3 ratio 25.

In arguing issue 4 Counsel submitted that the said issue should he resolved in the negative as the proceedings of the trial Court were vividly precipitated with glaring errors of law in such a way that it was deprived of the Character of a legitimate adjudication. Counsel enumerated the fundamental errors reflected in paragraphs a?f at pages 24-26 of the Appellants brief of argument. That the errors committed by the trial Court

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in the proceedings is sufficient to set aside judgment of trial Court for being incompetent. See Dingyadi V. INEC (2011) 10 NWLR (PT. 1255) 347 at 360 ratio 9. He urged the Court to resolve this issue 4 in favour of the Appellants.

In response Respondent?s Counsel argued the sole issue. Counsel submitted that Appellants were given ample opportunity to defend their case but they chose to stay away from the Court despite been fully aware of same. Counsel cited Mato v. Hember (2018) 5 NWLR (PT. 1612) 258 @ 266 Ratio 14 and submitted that the authority did not say that any writ of summons not marked that it is going to be served outside jurisdiction of the Court is null and void. That apex Court was silent on that. Counsel urged the Court to hold that the non marking of the writ of summons is nothing but a mere irregularity and does not go to the root of the lower Court?s jurisdiction because leave of Court to serve the writ or process outside jurisdiction of the Court was sought and obtained by the Respondent before the service on the 2nd Appellant. Reliance placed on Oyepo V. Arasiola (2014) ALL FWLR (PT.719) 1192 @ 1193 Ratio 2. See also

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Garba V. State (2014) ALL FWLR (PT. 756) 423 @ 427 Ratio 6 & 8. That an irregular service can be set aside by a Court upon timeous application by the aggrieved party. According to Counsel the failure of a party to apply timeously for regularization of irregular service is deemed acquiescence or waiver of such irregularity. Counsel urged the Court to hold that the application by the Appellants is not brought timeously and that the delay in bringing the application is a waiver. Counsel submitted that the Court is functus Officio to set aside the judgment being that such judgment can be only be set aside if the Appellants application was brought timeously. See A. D. H LTD V. Minister of FCT (2013) 8 NWLR (PT. 1357) 493 @ 501 -502 Ratio 10 Counsel urged the Court to hold that the Appellants are late in bringing their. Application seeking to set aside the Judgment of the lower Court after virtually (1) one year from the day of such judgment. See MT. Delmar V. MT. ANE (EX. MT LESTE)? (2016) 13 NWLR (PT.1530) 483 ration 17. Learned Counsel referred to conditions that must be satisfied before a judgment could be set aside. See Nwoko V. Azekwo (2012) 12 NWLR (PT.

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1313) @ 151 Teno Engr. LTD V. Adisa (2005 10 NWLR (PT.933) @ 346. He urged the Court to hold that lower Court was right in dismissing the appellants? application. Learned counsel further submitted that a party served with a defective writ of summons is expected to do the following.
a) Enter a conditional appearance
b) Raise an objection tiemously before taking any step.

If the party acts timeously the writ of summons would be set aside. That 2nd Appellant refused to exercise either of the above option to enter a conditional appearance or raise an objection. On non-compliance with the provisions of Sheriffs and Civil Process Act on the issue of service outside jurisdiction, reference was made to the case of Aermacchi v AIC Ltd (1986)2 NWLR (Pt.23) 443 wherein the conditions to be considered were enumerated. Learned counsel further submitted that the responsibility of making a writ for service outside jurisdiction is that of registrar and not of the party filing the writ. That any omission and or failure to do so by the registrar cannot be visited on the litigant or his counsel cited in aid UBA Plc v J.M & Co. (Nig.) Ltd (2016)5 NWLR

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(pt.1504) 171 @ 175 R. 4.

Counsel submitted that the failure of Appellants to file a proposed statement of defence, and application to set aside the Judgment of the lower Court cannot be granted. That the Court must be satisfied that he has a defence and the defence has merit. See Ogolo v Ogolo (2006) 10 WLR 92 pg. 112 lines 20-25. He urged the Court to resolve the sole issue in favour of the Respondent.

The points raised in the reply brief will be considered in the course of writing the Judgment.

In resolving the issues, I will start with issue one which reads thus:
?Whether the trial Court was right in holding that none compliance with the rules of Court and the provisions of the Sheriff and Civil Process Act requesting leave or endorsement for service outside jurisdiction does not go to the competence of the writ but mere irregularity incapable of nullifying the proceedings before it? Grounds one and two of the Appeal?

The grouse of the Appellants was in respect of the position taken by the trial Court that failure to comply with the rules of Court and provisions of the Sheriff and Civil Process Act requesting leave or

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endorsement as to service outside jurisdiction does not go to the competence of the Writ of Summons filed by the Respondent but mere irregularity and not capable of nullifying its proceedings. The Writ of Summons was issued out of the Registry of the Bauchi State High Court, on 11th April 2016 and it was signed by a Judge and counsel. See pages 1 and 2 of the record. The Writ was to be served on the 1st Defendant whose address was C/O Bauchi town, Bauchi State. While same was to be served on 2nd Defendant whose address for service was C/O of Musako Motors, Kaduna, Kaduna State, that is outside the jurisdiction of the Bauchi Judicial Division. I have examined the Writ of Summons but it does not have the Mandatory endorsement required by S.97 of the Sheriff and Civil Process Act. The provision of S.97 provides thus:
?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 on the Capital Territory have endorsed thereon a notice to the following effect (that is to say)?.
(L.N 47 of 1955)
This

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summons (or as the case may be) is to be served out of the state (or as the case may be) ?. And in the ?… state (or as the case may be).
Section 98 also provides for issuance of concurrent writs. Section 98 states.
?A Writ of Summons for service out of the state or the capital territory in which it was issued may be issued as a concurrent writ with one for service within such State or the capital territory and shall in that case be marked as concurrent?.
?By the provisions of S.97 and 98 of the Sheriffs and Civil Process Act the Writ of Summons ought to have the endorsement required under S.97 and also same should be marked concurrent. The issuance of concurrent writ is also provided under Order 5 Rule 13(1) of the Bauchi State High Court (civil Procedure) Rules, 1987. Order 5 Rule 8(1) of the High Court Civil Rules is also relevant. I have not noticed any endorsement on the said writ appearing on page 2 of the record which was to be served within and outside Bauchi State. The Writ should have carried the endorsement concurrent. When the words used in Section 97 and 98 of the Sheriffs and Civil Process

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Act are given their ordinary plain meaning without embellishment, it becomes very clear that both Provisions are mandatory. It was held by apex Court in Izeze v INEC (supra) at page 127 that 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 v Adesanya & Anor (1989) 20 NSCC (Pt.11) 327, (1989 )3 NWLR (Pt.109) 250 Nwabueze & Anor v Justice Obi Okoye (1988)19 NSCC (Pt.111) 53, (1988)4 NWLR (Pt.91) 664; Sken Consult (Nig.) Ltd v Ukey (1981)12 NSCC page 1; D.E.N.E Ltd v Trans Ind. Bank Ltd (2008)18 NWLR (Pt.1119) 399 and Izeze v INEC (2018)11 NWLR (Pt.1629) 110.
The Appellants obtained leave on 18/04/2016 to serve writ outside jurisdiction on 2nd Defendant but the said writ was not endorsed. Respondent?s counsel had argued that the failure to comply with the rules of Court and provisions of the Sheriffs and Civil Process Act cannot be attributed to the Registrar. I agree with the Appellant?s counsel submission that though it is the duty of the registrar to issue the writ,

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Section 97 of the Sheriffs and Civil Process Act requires the claimant to endorse the writ is same is meant to be served outside jurisdiction. In the instant case the writ was to be served. Outside jurisdiction and within. The fault cannot be visited on the Registrar but on the claimant who should have ensured that the endorsement is reflected on the writ before serving same on 2nd Appellant outside jurisdiction. The claimant/Respondent did not act diligently.
In Izeze v INEC (supra) at pages 127-128 paras H-B the apex Court per Rhodes-Vivour JSC emphasized the importance of endorsement of a writ to be served outside jurisdiction. His Lordship had this to say:
?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 ? 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

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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 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?.
The decision of the apex Court on the issue of endorsement is clear and binding on this Court. The trial Court was therefore wrong to arrive at the decision that failure to endorse writ for service outside jurisdiction is mere irregularity. The defect is fundamental and is capable of nullifying the proceedings as same is void. I will resolve issue one in favour of the Appellants.

As regards issue 2 I totally agree with the submission of learned counsel for the Appellants that the trial Court was wrong when it held that the 2nd Appellant was duly served with the writ of summons and that it has become functus officio. The trial Court misconceived the nature of the Appellant?s application before it

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challenging want of service of Court process on the Appellants. As resolved under issue 1, 2nd Appellant who resides outside jurisdiction was not properly served because the writ of summons was not endorsed as required by S. 97 of the Sheriffs and Civil Process Act. The Writ is fundamentally defective. There cannot be proper service without a valid writ. See Izeze v INEC (supra). Respondent alleged that 2nd Appellant was served by substituted means. In Kida v Ogunmola (2006)13 NWLR (Pt.997) 377 @ 393 the apex Court held that if the defendant is outside the jurisdiction of the Court at the time of the issue of the writ and consequently could not have been personally served in law, not being amenable to that writ, an order for substituted service cannot be made.
The validity of the originating processes in a proceeding before a Court is fundamental, as the competence of the proceeding is a condition sine quo non to the legitimacy of any suit. Thus, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly

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borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such time can never be belated as claimed by the respondent. The motion filed by the appellants on 20th June 2018 clearly sought for an order setting aside the proceedings and judgment of the trial Court dated 14th day of June 2017, against the applicants in this suit for being a nullity and want of valid service of Court process among other things. Having regard to the circumstances of the case, the trial Court was wrong in holding that it became functus officio to consider this complaint of service put before it by the Appellants. Whenever a Court of law is invited to consider whether or not there was improper service of Court process on any party to its proceeding, it is duty bound to consider the complaint and determine it one way or the other and by doing so the Court cannot become functus officio. The Appellants application by its nature challenged the jurisdiction of the trial Court to have even entertained the suit as such it ought to have considered the application. Under such circumstances since the complaint relates to improper or invalid service of

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originating process on a party as in the instant case, an application to have such a service set aside or any proceeding of the Court conducted in consequence thereof by the person affected will not render the Court functus officio, as wrongly held by the Court. I will accordingly resolve issue 2 in favour of the Appellants.

The complaint of the Appellants under issue 3 relates to the statement by the learned trial Judge at page 176 of record wherein he said:
?In an application to set aside a Judgment where an applicant fails or neglect to exhibit a proposed statement of defence to an application for an order to set aside a default Judgment, it cannot be granted that indulgence because he must satisfy the Court that he has a defence on the merit before he can be allowed to defend the action. See Ogolo v Ogolo (2006)10 NWLR Per Onnoghen JSC Pg.112 lines 20-25. In the instant case no statement of defence was attached to the application and therefore incompetent and I so hold.?

I agree with Appellants? counsel that the Appellants? application was not seeking to set aside the Judgment of the trial Court for being default

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Judgment but for being a nullity and for want of proper service of Court processes on the Appellants. The issue of service of invalid writ of summons has been considered under issue 1 and 2 in this Judgment. I agree with the Appellants? counsel that the nature of their application does not require any proposed defence to the respondent?s action before it can be competent to be heard by the trial Court. The Appellants? application seeking to set aside the Judgment of the trial Court was not premised on the ground of having defence to the action but relates to the fact that the writ of summons is fundamentally defective for failure to comply with the provisions of Section 97 of the Sheriffs and Civil Process Act. The Appellants are disputing the validity of the Judgment on the premise that the Judgment did not exist due to lack of jurisdiction. The absence of the statement of defence cannot be a ground to refuse to consider the application by the Court. The trial Court was also wrong to hold that the application was not brought timeously because issue of jurisdiction can be raised at any stage of the proceedings or at the Court of Appeal, or

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even for the first time at the Supreme Court. I also agree with Appellant?s counsel that the trial Court was wrong to dismiss the application after declaring same incompetent. The appropriate order for the Court to make was to strike out the application and not dismissal of same. Issue 3 is similarly resolved in favour of the appellants.

Under issue 4 the appellants set out visible errors committed by the trial Court in the proceedings that deprive the decision of the trial Court the character of legitimate adjudication to warrant setting aside of the Judgment of the trial Court for being incompetent. I do not find it necessary to consider them in detail. The singular act of the Respondent for failure to comply with Section 97 of the Sheriffs and Civil Process Act by serving a writ that has no endorsement being a fundamental defect has affected the validity of the entire proceedings without more. The failure of the Respondent to endorse the writ of summons for service outside jurisdiction as set out in Section 97 of the Sheriffs and Civil Process Act that is, ?that the summons is to be served out of jurisdiction and the state it is to be

28

served?, renders the writ of summons fundamentally defective. It deprives the Court of the necessary competence and jurisdiction to hear the suit. Thus the trial Court in the instant case had no jurisdiction to the hear the Respondent?s application and enter Judgment against the Appellants in default of filing statement of defence. The proceedings as far as it affects the 2nd Appellant on 24th day of October 2018 was a nullity. See Kida v Ogunmola (supra). The failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.

Having resolved all the four issues in favour of the Appellant, I will accordingly hold that the Appeal succeeds. Appeal allowed. The Judgment of High Court of Justice Bauchi State delivered by N.K Hamidu J. in Suit No. BA/73/2018 is hereby set aside. In its place I order that the Suit No BA/72/11 filed by the Respondent before the trial Court be struck out. Parties to bear their own costs.

?BOLOUKUROMO MOSES UGO, J.C.A.: I had the privilege of reading in advance the lead

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Judgment of my learned brother Adzira Gana Mshelia, J.C.A (PJ) and I am in agreement with his reasoning and conclusion, I also allow the appeal and agree with all consequential orders made therein including that as to costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.(DISSENTING JUDGMENT): I have had the privilege of reading before now the lead judgment delivered by my learned brother, Adzira Gana Mshelia, JCA. His Lordship has considered and resolved the issues in contention in this appeal. With respect, I am unable to agree with the reasoning and abide the conclusion reached therein. I am compelled to write a dissenting view.

?The facts of this case are pretty straight forward. The Respondent commenced the action in the lower Court, the High Court of Bauchi State, against the first and second Appellants. The address for service endorsed on the writ of summons for the first Appellant was within Bauchi Town while the address for service on the second Appellant was in Kaduna, Kaduna State. By a motion ex-Parte dated the 18th of April, 2016, the Respondent prayed for leave to serve the Writ of Summons on

30

the second Appellant in Kaduna, Kaduna State and for an order deeming the Writ of Summons filed as duly endorsed for service outside the jurisdiction of the lower Court. The lower Court heard and granted the motion as prayed on the 28th of April, 2019. The bailiff of Court deposed to an affidavit of service stating that on the 6th of May, 2016 he served the second Appellant with the hearing notice and writ of summons by throwing same at him, when he refused to accept service, at Akilu Road in Kaduna.
?
The Respondent filed a second motion ex-parte dated 31st of May, 2016 praying for an order of substituted service of the processes on the first Appellant and that such substituted service should be deem good and proper service of the processes on the first Appellant. The lower Court heard the motion on the 1st of June, 2016 and granted same as prayed and there is an affidavit of service in the records of appeal that the first Appellant was served with the processes by the said substituted means on the 1st of June, 2016. The records show that Counsel thereafter appeared for first Appellant before the trial Court and efforts were made to settle the matter

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amicably. Efforts at settlement eventually broke down and Counsel to the first Appellant filed a motion on notice seeking to withdraw his appearance for the first Appellant and it was dated the 7th of December, 2016.

The records show that the Respondent filled another motion ex parte dated the 23rd of January, 2017 praying for substituted service of hearing notice and amended statement of claim on the second Appellant by pasting same on the notice board of the lower Court and that such substituted service shall be deemed proper service. The lower Court took the motion for substituted service on the second Appellant on the 20th of February 2017 and granted same as prayed. The records show that upon a confirmation that the second Appellant had been properly served with the processes, the lower Court took the application of Counsel to the first Appellant to withdraw its appearance on the 5th of April, 2017 and granted same and it directed that hearing notice be served on the first Appellant directly.
?
Following failed attempts to serve the first Appellant with the hearing notice personally, the Respondent filed yet another motion ex-parte dated the

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26th of May, 2017 for substituted service of the hearing notice and the amended statement of claim on the first Appellant by posting same at the gate of his house and that such substituted service shall be deemed proper service. The lower Court heard the motion on the 30th of May, 2017 and it granted same as prayed. There is a bailiff affidavit in the records that the first Appellant was served with the processes by substituted means on the 5th of June, 2017. The records show that when the matter came up on the 14th of June, 2017, the Appellants were absent from Court and were not represented by Counsel and the lower Court, upon the application of Counsel to the Respondent, entered summary judgment in favour of the Respondent for failure of the Appellants to file a statement of defence.

By a motion dated the 19th of June, 2018, the Appellants approached the lower Court praying for an order setting aside the judgment entered on the 14th of June, 2017 for being a nullity and for want of valid service and for an order staying further execution of the judgment. The grounds upon which the application was predicated were that the initiating process issued in

33

commencing the suit was materially defective and incurable, that the purported service of the writ of summons on the second Appellant was not valid and was unknown to law and procedure, and that the judgment was a nullity as the lower Court lacked the competence to adjudicate on the matter. The application was supported by an affidavit and the case of the Appellants on the affidavit was that they were not aware of the default judgment entered by the lower Court and that they only came to know about the judgment when execution was levied by the bailiff of Court. It was their case that the Respondent initiated the suit by way of concurrent writ of summons for service within and outside the jurisdiction of the Honorable Court and that this was not indicated on the Writ of summons and neither was it endorsed for service outside the jurisdiction of the lower Court as required by Sections 97 and 98 of the Sheriff and Civil Process Act and that the second Appellant was not given the required thirty days within which to enter appearance. It was their case that the affidavit of service on the second Appellant was not also endorsed as required by

34

Order 5 Rule 8(1) of  the Rules of the Bauchi State High Court.
The Respondent filed a counter affidavit and it was its case that the writ of summons was served personally on the second Appellant on the 6th of May, 2016 and that the second appellant had more than thirty days within which to enter appearance and file a defence before the lower Court entered judgment on the 14th of June, 2017. If was its case that after the withdrawal of Counsel to the first Appellant, he was duly served with the hearing notice of the matter personally by substituted means. It was its case that the application was not brought timeously and that it was the amended statement of claim that was served on the second Appellant by substituted means and not the writ of summons.
?
The lower Court heard the application on the merits and if delivered a considered Ruling on the 24th of October, 2018 wherein it dismissed the application of the Appellants. The Appellants were dissatisfied with the Ruling and hence this appeal. It my view that three main issues were thrown up in the arguments of the Counsel to the parties in this appeal and these are:
i. Whether the failure of the Respondent to

35

endorse the writ of summons for service outside jurisdiction in the form required by Sections 97 and 98 of the Sheriffs and Civil Process Act rendered the writ of summons incurably bad and defective.
ii. Whether, on a proper interpretation of the Rules of the High Court of Bauchi State, the failure of the bailiff to endorse service on the writ of summons rendered the writ of summons invalid and incompetent.
iii. Whether the second Appellant was properly served with writ of summons issued in the instant case.

It is my understanding that a resolution of these three issues for determination fully resolve the germane issues in this appeal. The other issues highlighted by Counsel to the Appellant on whether the lower Court was right when it stated that it was functus officio and when it held that the Appellants ought to have exhibited a statement of defence to their application to show a defence on the merits are merely peripheral.
?
On the first issue for determination, Counsel to the Appellants submitted with a lot of panache that failure of the Appellants to endorse the writ of summons for service on the second Appellant as required by

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Sections 97 and 98 of the Sheriffs and Civil Process Act rendered the writ of summons incurably bad and defective and he relied on decisions of the Supreme Court such as Owners of the MV Arabella” Vs Nigeria Agricultural Insurance Corp (2008) 11 N WLR (Pt 1097) 182, Izeze Vs INEC (2018) 11 NWLR (Pt 1629) 110 and PDP vs INEC (2018) 12 NWLR (Pt 1634) 533. Counsel to the Respondent submitted on the other hand that the failure only renders the writ of summons voidable and not incurably bad and defective.

I must say that I surprised that this question of the effect of the failure to endorse the writ of summons for service on the second Appellant as required by Sections 97 and 98 of the Sheriffs and Civil Process Act is still agitating in the Courts. It shows, with respect, a lack of clarity on the doctrine of judicial precedent. It is correct that at a point in time there was so much confusion on the issue because of the different decisions of the Supreme Court in the ‘cases Skenconsult (Nig) Ltd Vs Ukey (1981) 1 SC 6, Ezomo vs Oyakhire (1985) 1 NWLR (Pt 2) 195, Nwabueze vs Okoye (1988) 4 NWLR (Pt 91) 664, Adegoke Motors Ltd vs Adesanya (1989) 3 NWT-R (Pt

37

109) 250 and NEPA vs Onah (1997) 1 NWLR (Pt 484) 680 on the point. However, in Odu’a Investment co. Ltd vs Talabi (1997) 10 N\VLR (Pt 523 1, the Supreme Court constituted a full panel of seven Justices to consider the issue and to reconcile its conflicting decisions on the issue and the decision of the Court, by a majority of six to one, was read by Ogundare, JSC. The learned Justice streamlined the views of the Supreme Court on the issue at page 52 C-F thus:
“From all I have been saying, my answer to the question set out in this judgment, therefore, is that non-compliance with Section 97 and/or Section 99 of the Sheriffs and Civil Process Act and the rule of Court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled ex debitio justitiae to have same set aside as was done in Skenconsult, Nwabueze and NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of, Where the latter is the case, his application to set aside must be refused. I need

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point out, for the avoidance of doubt, that the power to set aside is without prejudice to the power of the Court to allow, in appropriate cases, such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit.
Turning to the case on hand, the appellant from the various steps it took in the proceedings after service on it of the writ of summons cannot now be heard to complain of defects in the issue and service of the writ. It is too late in the day to do so. He has waived his right to complain. The trial must go on. Technicalities are a blot upon the administration of the law and the Courts have moved a long way from allowing them to make an ass of it and dent the image of justice.”
In other words, the position taken by the full panel of the Supreme Court was that non-compliance with the provisions of the Sheriffs and Civil Process Act is an irregularity which only renders the writ voidable, not void, and that such a writ will be voided at the instance of a defendant who acts timeously and before further steps are taken in the matter. I am aware of the decisions of the Supreme Court in the cases of

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Owners of the MV (“Arabella” Vs Nigeria Agricultural Insurance Corp supra, Izeze Vs INEC supra and PDP Vs INEC supra relied on by the Counsel to the Appellant which state that failure to endorse as required by Sections 97 and 98 of the Sheriffs and Civil Process Act renders a writ of summons incurably bad and defective. I am also aware that these decisions are later in time than the decision in Odu’a Investment Co. Ltd Vs Talabi supra and that the Supreme Court has stated that where there are conflicting decisions of the Supreme Court on a point, the latter in time supplants the earlier one and it is the binding precedent. It is, however, my view that this principle is inapplicable in the present circumstances.
It is recognized that the Supreme Court sits in two panels ? a panel of five Justices, used for its regular sittings, and a panel of seven Justices, usually referred as the sitting of the Full Court. The sitting of the Full Court of the Supreme Court is equivalent to what is referred to as “en band” sitting of the appellate Courts in other jurisdictions. The sitting of the Full Court of the Supreme Court takes place where the Court is

40

being asked to depart, or may decide to depart, from a previous decision, in cases of high constitutional importance or great public importance, or in cases where conflicts in the decisions of its regular panels have to be reconciled. A decision rendered by the Full Court of the Supreme Court is regarded as the decision of the entire Justices of the Supreme Court, and under the doctrine of stare decisis, it can overrule a prior decision of the Supreme Court. Jurisprudentially, a decision of the Full Court of the Supreme Court is superior to, and overrides the decision of a regular panel of the ? Bogoro Local Government Council Vs Kyauta (2()17). LPELR 43296(CA), Court Federal Republic of Nigeria vs Dingyadi (2018) LPELR46061 (CA), Federal Republic or Nigeria vs Achida (2018) LPELR 46065(CA).
The decision in Odu’a Investment Co. Ltd Vs Talabi supra was given by a panel of seven Justices of the Supreme Court sitting as the Full Court while the decisions in Owners of the MV “Arabella” Vs Nigeria Agricultural Insurance Corp supra, Izeze vs INEC and PDP vs INEC were each rendered by panels of five Justices of the Supreme Court. It is my understanding that these

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latter decisions given by a regular panel of the Supreme Court cannot supersede, override, supplant or take precedence over a decision delivered by a panel of seven Justices of the Supreme Court. The decision in Odu’a Investment Co. Ltd Vs Talabi thus, in my view, still remains the correct position of the law until it is set aside or overridden by a decision of a panel of seven Justices of the Supreme Court Zakirai Vs Mohammad (2015) LPELR 40387 (CA). The lower Court was therefore correct when it held that non- compliance the provisions of the Sheriffs and Civil Process Act rendered the writ of summons irregular and voidable, and not incurably bad and defective. I resolve the first issue for determination against the Appellants.
?
On the second issue for determination, Counsel stated that the writ of summons used in the lower Court was incompetent because the bailiff who effected service did not endorse the portion provided on the writ of summons with his name and date of the said service and this, he said, was in non-compliance with Order 5 Rule 8(1) of the High Court of Bauchi Civil Procedure Rules. Counsel submitted that the judgment of the lower Court

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predicated on such a writ of summons was a nullity and he relied on the decision of this Division of the Court of Appeal in Leadership Newspapers Group Ltd vs Mantu (2017) 2 NWLR (Pt 1548) 15. It is correct that the portion provided on the writ of summons for endorsement of service was not filled by the bailiff who served the writ of summons and I have read the judgment of this Court relied upon by Counsel to the Appellant and it is correct that the judgment decided that a writ of summons not so endorsed was incompetent and rendered proceedings a nullity. I am unable to abide this decision of this Court in the circumstances of this case for two reasons.
Firstly, a read through the decision shows that it was predicated on the judgment of the Supreme Court in Martin Schroeder & Co Ltd Vs Major & Company (Nig) Ltd (1989) 2 NWLR (Pt 101) 1. This Court stated in the judgment that it was interpreting the provisions of Order 5 Rule 8(1) of the High Court of Plateau State (Civil Procedure) Rules 1987 and it the quoted extensively from that decision of the Supreme Court in the coming to its decision on the point. A read through the judgment in

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Martin Schroeder & Co Ltd Vs Major & Company (Nig) Ltd supra shows that the Supreme Court interpreted the peculiar provisions of Order 6 Rules 15 and 16 of the Lagos State High Court (Civil Procedure) Rules, 1972 and which provisions are not similar or the same with the provisions of Order 5 Rule 8(1) of the High Court of Plateau State (Civil Procedure) Rules 1987. For purpose of clarity, I will reproduce in extenso the lead judgment of Wali, JSC,

“The cardinal point raised in this appeal is whether in serving a specially endorsed writ, an affidavit of service sworn to by the person effecting service is a good substitute for indorsing a copy of the writ served as prescribed under Order 6 Rule 16 of the Rules. To fully appreciate the effect and functions of the two rules, it is pertinent to reproduce the two provisions:
Rule 15 provided thus:
“15. (l) Where service of any process or document issued by the Court has been effected by the sheriff, deputy Sheriff, or by a bailiff or any officer of the Court:
(a) A certificate of service under the hand of the person effecting the service indorsed on true copy of the process or document served, setting out the

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fact, place, mode and date of service, or
(b) an affidavit sworn by the person effecting the service setting out the fact, place, mode and date of service, and describing the process or document served, shall be prima facie proof of the matters stated in the endorsement or affidavit.
(2) Where any process or document is served by a person other than the sheriff, deputy sheriff, or other aforesaid; an affidavit sworn by the person effecting the service setting out the fact, place, mode and date of service, and describing the process or document served, shall be prima facie proof of the matter stated in such affidavit.
(3) Where service is affected by registered post, a certificate of service under the hand of the officer of the Court who effected it, to which shall be annexed the certificate of posting, shall be prima facie proof of the matters therein stated…”
?Whereas Rule 16 makes the following provisions:
“16 The person effecting service of a Writ or Summons, originating summons or other originating process shall indorse forthwith on a copy of the document served, duly certified as prescribed by Rule 2 of Order 5, the fact, place,

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mode and date of each service effected and shall sign and date each endorsement.”
The provision in Order 6 Rule 15 is clearly of general application. Where service of any process or document is effected under 15(1) a certificate of service under 15(1)(a) or alternatively an affidavit of service under 15(1)(b), shall be prima facie proof of the matters stated in the endorsement or affidavit. Rule 15(2) deals with service of process or documents by persons other than those mentioned in rule 15(1) and in such a situation, an affidavit sworn by the person effecting the service setting out the fact, place, mode and date of service, and describing the process or documents served, shall be prima facie proof of the matter stated in such affidavit.
The contention of learned counsel for the appellant could have been right if the provision of Order 6 Rule 16 is not there. It is a special provision provided to deal with the service of summons mentioned therein and these are:
(a) writ of summons
(b) originating summons
(c) other originating process.
?These documents, mentioned in (a), (b) and (c) supra, must bear an endorsement as

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prescribed by Rule 2 of Order 5 of the Rules. A copy of the writ in this suit bears the following endorsement:
“INDORSEMENT AS TO SERVICE
This writ was served by me at… on the Defendant (herein insert mode of service) on the day of 19 Indorsed the?… day of 19?.
(Signed)?…
(Address)?.
It is common ground between the parties that the endorsement supra, was not completed by the person effecting the service. It is a Writ of Summons specifically mentioned in Rule 16 of Order 6. The provisions of the two rules are crystal clear; one is general while the other is special. There is no need to resort to reading the two together to ascertain the intention of the promulgators.
As I have earlier said, Rule 16 of Order 6 is a special provision dealing with mode and proof of service of summons mentioned therein and that the Writ of Summons in this suit, though covered by Rule 15 of Order 6, has been mentioned again in Rule 16 of the same Order, thus subjecting it to the provision of the latter. At the expense of repeating myself, whereas Rule 15 of Order 6 is a general provision by its

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nature, Rule 16 is a special provision meant to cater for the service and proof thereof of the processes mentioned therein. And where a thing is mentioned in both general and special provisions, the provisions of the special provision shall apply to it. This is the rule of interpretation applicable and the Latin maxim is ‘generalia specialibus non derogant’ meaning general things do not derogate from special. The other rule of interpretation meaning the same thing is? ?specialia generalibus derogant” special things derogate from the general one.
There is no need to resort to Rule 15(1) in the present case which applies to all processes, including originating processes. The wording of Rule 16 of Order 6 is mandatory and failure to comply with it is fatal to the service and proof thereof, of any of the processes mentioned therein. The swearing of an affidavit cannot therefore take the place of certificate of service in Rule 16 of Order 6.
. I am therefore in complete agreement with the reasoning and the conclusions arrived at by the Court of Appeal in its judgment, more particularly where it stated:
? But for the Writ

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of Summons will not be considered as regular unless the endorsement which is part of the writ itself is completed. It is mandatory on the bailiff or the person serving the writ to complete the indorsement. It is only after this has been done that the affidavit of service in Form No. I (supra) which must include item 3 therefore can be sufficient to raise a Prima facie evidence of service.?
In my view, the completion of the prescribed Form of’ Indorsement as to service ?which is part of the writ, is to provide an unmistakable and unequivocal information that the bailiff served the writ in the manner as prescribed. And emphasis is that this prescribed form shall be completed forthwith at the time service was effected. Unfortunately, in the instant case this prescribed form admittedly was never completed and the reasonable inference to be drawn therefore is that the writ was not only defective but was never in fact served.
?It is therefore dangerous to rely on this self-same defective affidavit sworn to by the bailiff, more than two years later, to say that the Defendant was served. This will amount to naked injustice, as the condition

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precedent to justify the Court entering judgment was not established and the judgment therefore was null and void. See Craig v. Kansser (1943) K.B. 256; where ‘judgment was set aside on the ground that affidavit of service (as in this case) on the face of it was insufficient and no order should have been completed on it….’
I also hold that where a party intends to rely on affidavit evidence as prima facie proof of service that affidavit must strictly be in the prescribed Form No. 1 which in effect incorporates under item 3 thereof, the provisions of Order 6 Rule 16. It is only when that has been strictly done that the affidavit becomes a prima facie evidence of service thereby putting the onus of rebutting the averments therein contained on the party denying it. As the affidavit is incurably defective in material particulars as required by the Rules, it cannot support any judgment in default as there is no legal basis to hold that it was established that there was proof of service of the Writ of Summons on the Defendant.”
?It is a settled principle in our legal jurisprudence that legal principles established in decided authorities are not to be

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applied across board and in all matters without regard for the facts and issues framed for adjudication in a particular case. This point was succinctly made by the Supreme Court in Marine Management Association Inc & Anor Vs National Maritime Consultancy Ltd (2012) 3 NW I JR (Pt 1333) 506 at 538A when the Court stated that:
“Isolated and general principles of law cannot be relied on solely to determine an issue in a case without looking at the circumstances, facts and merits of each case.”
The point was reiterated by the Supreme Court in Emeka Vs Okadigbo (2012) 18 NWLR (Pt 1331) 55 where Rhodes Vivour, JSC stated at page 96 thus:
“Facts have no views. A judgment should always be read in the light of the facts on which the case was decided. The rules of stare decisis do not allow Courts to apply the ratio of a case across the board and with little regard to the facts of the case before them.?
This is because decisions of Courts draw their inspiration and strength from the facts which framed the issues for decision and once such decisions are made they control future judgment in like or similar cases, hence the facts of two cases

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must either be the same or at least similar before a decision in the earlier case can be used in a later case – Fawehinmi vs Nigerian Bar Association (No 2) (1989) 2 NWLR (Pt 105) 558, Ndu vs Onuaguluchi (1999) 11 N\VLR (Pt 625) 152, Anaedobe vs Ofodile (2001) 5 N\VLR (Pt 706) 365, Abubakar vs Nasamu (No 2) (2012) 17 NWLR (Pt 1330) 523. Thus, it is improper to try and force the ratio of a case on facts to which it cannot be assimilated; the ratio of any case should not be pulled by the hair of the head and made to apply to cases where the surrounding circumstances are different- Mortune vs Balonwu (2000) 5 NWLR (Pt 655) 87.
Thus, the judgment of the Supreme Court in Martin Schroeder & Co Ltd Vs Major & Company (Nig) Ltd supra, is not, and cannot be, a binding judicial precedent on the interpretation of Order 5 Rule 8(1) of the High Court of Plateau State Civil Procedure Rules which this Court in the case of Leadership Newspapers Group Ltd Vs Mantu supra or of Order 5 Rule 8(1) of the High Court of Bauchi State Civil Procedure Rules relied upon by the Appellant. There is no equivalent provision to Order 6 Rule 16 of the High Court of Lagos State Procedure Rules 1972

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in either the High Court of Plateau State Civil Procedure Rules or the High Court of Bauchi State Civil Procedure Rules. What these Rules of Court say in their respective Order 12 Rule 28 is that in all cases where service of any writ or document shall have been effected by a bailiff or other officer of Court an affidavit of service sworn to by such bailiff or other officer shall on production, without proof of signature, be prima facie evidence of service.”
In other words, there is no provision in either of two Rules of Court making it mandatory for the bailiff who effected service of a writ of summons to fill the portion provided to the writ of summons for endorsement of service. Both Rules of Court say that an affidavit of service sworn to by such a bailiff was sufficient. ‘There are affidavits of service sworn to the bailiff that served the processes in this matter on the Appellants in the records of appeal. Thus, failure of the bailiff to fill the portion provided on the writ of summons for endorsement of service does not, and cannot, render the writ of summons or its service a nullity.
Secondly, the provision of

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Order 5 Rule 8(1) of the High Court of Plateau Stale Civil Procedure Rules 1987, and which is in pari materia with the provision of Order 5 Rule 8(1) of the High Court of Bauchi State Civil Procedure Rules relied upon by the Appellants in this appeal, and that this Court interpreted in the case of Leadership Newspapers Group Ltd Vs Mantu talks about the use of the prescribed forms of writ of summons contained in the Appendix to the Rules of Court. The position of the Supreme Court and of this Court over the years is, and has been, that Court forms are only meant to be guides and need not be rigidly followed and that the concern of a Court of law at all times must be the substantial justice of a matter rather than rigid adherence to technicalities ? Bucknor Macleans Vs Inlaks Ltd (1980) ALL NLR 184, Pharmacist Board of Nigeria vs Adegbesote (1986) 5 NWLR (Pt 44) 707, Bajoga Vs Government of the Federal Republic of Nigeria (2008) 1 NWLR (Pt 1067) 85, Aliyu Vs Intercontinental Bank Plc (2013) LPELR 20716(CA), The Board of Management Federal Medical Center Vs Abakume (2015) LPELR 24786(CA), Mancha Vs Emukowate (2017) LPFLR 43113(CA), The Attorney General, Akwa Ibom State Vs Akadiaha ?

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(2019) LPELR 46845(CA). ‘This point was succinctly made by Niki Tobi, JCA (as he then was) in the case of Okpetu Vs Commissioner of Police, Delta state (2001) FWLR (Pt 69) 1317, cited by Counsel to the first Respondent, at page 1333 thus:
Court forms are generally guides and counsel are free to tailor them to the immediate needs of any matter. If the output of the tailoring exercise is in substantial conformity with the form and does not in any way mislead the adverse party or the Court, Courts of law will not raise their eyebrows of disapproval?.Courts of law should not be weighed down with technical and abstract rules of Court by way of Court forms at the expense of examining the merits of the case on the scales of justice. They should try as much as they can to underplay rules of Court when they come in direct confrontation with justice and fair play. They should lean in favour of justice than following barren rules of Court, which are not helpful. The point is not made that the Courts should have no regard for their own rules. No. That is not the point made. It will be foolish to suggest that. If the rules, and,

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therefore in our con the forms, are made for the Courts, and they are, then the Courts are under a duty to enforce them. But the moment their enforcement antagonizes justice or tries to ruin justice, then the Courts should choose the path of justice.”
This position of the Courts draws statutory support from Section 23 of the Interpretation Act which states that where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purposes of the enactment by reason only of the difference if the difference is not in material particular and is not calculated to mislead. Thus, it is not the law, and it has never been the law, that there must be mandatory compliance with a prescribed form and that non-compliance with a prescribed form renders what has been done incompetent and a nullity. ‘Thus, the decision in Leadership Newspapers Group Ltd Vs Mantu supra that makes use of a prescribed for mandatory goes against the set position of the law, including judgments of the Supreme Court.
?It is settled law that this Court can depart from its earlier decision in the following circumstances:
i. Where

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two decisions of the Court of Appeal are in conflict and the Court must choose between them;
ii. Where the Court of Appeal comes to a conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court;
iii. Where the Court of Appeal comes to the conclusion that its previous decision was given per incuriam, that is, in ignorance of a statute or other binding authority, the Court is not bound by it; and
iv. Where the previous decision was reached jurisdiction.
See Ibaku Vs Ebini (2010) 17 (Pt 1222) 286, Central Bank of Nigeria Vs Hydro Air PTY Ltd (2014) 16 NWT R (Pt 1434) 482. I decline to follow the decision in Leadership Newspapers Group Ltd Vs Mantu supra and hold that the failure of the bailiff to fill the portion provided on the writ of summons served on the Appellants for endorsement of service did not render the writ of summons or its service a nullity and did not affect the validity of the judgment of the lower Court. I resolve the second issue for determination in favour of the Respondents.
?
On the third issue determination, i.e. whether the second Appellant

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was properly served with writ of summons issued in the instant case, the bailiff of the lower Court deposed to an affidavit of service stating that he served the second Appellant by throwing same at his feet when he refused to accept service at his stated address for service outside the jurisdiction of the lower Court. Counsel to the Appellants submitted that the service carried out by the bailiff amounted to substituted service when there was no order for substituted service made by the lower Court for that purpose and as such the service was improper. With respect to Counsel, he completely overlooked the provisions of Order 12 Rule 27 of the- High Court of Bauchi State Civil Procedure Rules which reads:
?Where the officer of Court or person charged with the service of any writ or document or any person is prevented by violence or threats of such person, or any other person in concert with him, from personally serving the writ or documents, it shall be sufficient to inform the person to be served of the nature of the writ or document as near such person as practicable.”
?Where a party to be served with a writ of summons refuses to accept

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service and/or to sign for same, the bailiff, relying on the above provisions, will be acting within his powers if he throws the writ of summons at the feet of the party and swears to an affidavit of service to that effect. Such service shall qualify as personal service, and it is not substituted service. The mode of service employed by the bailiff of the lower Court in the instant case by throwing the writ of summons at the feet of the second Appellant when he refused to accept service is an acceptable mode of personal service under the Rules of the High Court of Bauchi State. The entire submission of the Counsel to the Appellants predicated on the supposition that the mode of service was substituted is baseless and not well founded. The mode of service was proper and the third issue for determination is resolved against the Appellant.

I find and hold that the writ of summons that was issued and served on the Appellants was proper and that the service of the Court processes on the Appellants was properly carried out. The records show that the writ of summons was served on the second Appellant on the 6th of May, 2016 and on the first Appellant on the 1st

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of June, 2016 and their application to set aside the writ of summons served on then was not brought until the 19th of June, 2018. It is obvious that the application was not brought timeously. It was bound to fail. The decision of the lower Court dismissing the application was the correct one, in my view.
?
I find no merit in the appeal and I hereby dismiss same. I affirm the decision contained in the Ruling of the High Court Bauchi Stale in Suit No BA/73/2106 delivered by honorable k. N. Hamidu on the 24th of October, 2018. I make no order as to costs.

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Appearances:

Dahiru AbdulhameedFor Appellant(s)

Respondent absent (though served)For Respondent(s)

 

Appearances

Dahiru AbdulhameedFor Appellant

 

AND

Respondent absent (though served)For Respondent