MR. SYLVESTER MAKO v. BARRISTER FELICIA B. UMOH (2010)

MR. SYLVESTER MAKO v. BARRISTER FELICIA B. UMOH

(2010)LCN/3554(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of January, 2010

CA/A/224/08

RATIO

APPEAL: WHETHER COMPLAINTS OF ERROR EMANATING FROM A CONCLUSION ON UNDISPUTED FACTS ARE A GROUND OF APPEAL

It is trite that complaints of error emanating from a conclusion on undisputed facts are a ground of law. See OKEKE VS PETMAG NIG LTD (2005) 4 NWLR (PT 915) 245. PER UWANI MUSA ABBA AJI, JCA

PROCEDURE: DUTY OF PARTIES AND COURTS TO FOLLOW RULES OR PROVISIONS OF STATUTES

“A court of law ignoring the mandatory provisions of statutes which are mandatory or obligatory and tow the line of justice ….has not done justice. Courts of law can only do so in the absence of a mandatory or obligatory provision of a statute. In other words, where the provisions of a statute are mandatory or obligatory, courts of law cannot legitimately brush the provisions aside just because they want to do justice in the matter.” PER UWANI MUSA ABBA AJI, JCA

PROCEDURE: PURPOSE OF RULES OF COURT

It is now firmly settled that rules of court are not mere rules, but they partake of the nature of subsidiary legislations by virtue of Section 18 (1) of the Interpretation Act and therefore have the force of law. See AKANBI VS ALAO (1989) 3 NWLR (PT 108) 118. That is why Rules of Court must be obeyed. This is because it is also settled, that when there is non-compliance with the Rules of court, the court should not remain passive and helpless. There must be sanction; otherwise, the purpose of enacting the Rules will be defeated. See the cases of OBA AROMOLARAN & ANOR VS OLADEL & 2 ORS (1990) 7 NWLR (PT 162) 359. BANCO VS CHADO (1998) 9 NWLR (PT 564) 139 THE HON. JUSTICE KALO ANYA VS AFRICAN NEWSPAPERS OF NIGERIA LTD (1992) 6 NWLR (PT 247) 319. and OWNERS OF THE MV “ARABELLA” VS N.A.I.C. (2008) 11 (PT 1097) 182. In other words, Rules of Court are not only meant to be obeyed, they are also binding on all the parties before the court. PER UWANI MUSA ABBA AJI, JCA

PROCESS: WHETHER A WRIT CAN BE VALID WHILE ITS SERVICE MAY BE VOID

PROCEDURE: EFFECT OF IMPROPER SERVICE OF PROCESSES

In the recent case of OWNERS OF THE MV “ARABELLA” VS N.A.I.C. (2008) 11 (PT 1097) 182T the Supreme Court of Nigeria held that service of a writ out of jurisdiction is not a matter of court’s discretion. Not only is it provided for in the Rules of Court….” it is crucial to the prosecution of an action in the court. Accordingly without proper service, no valid appearance can be entered by a defendant in a suit although a defendant is at liberty to and can enter an appearance on a protest or a conditional appearance. The essence of service in our procedural or adjectival law is to ensure that the party is put on notice of the pending litigation. Failure to give notice of proceeding to an opposing party in a case where service of process is required is fundamental omission, which render such proceedings void because the court has no jurisdiction.

All I have been saying to the question set out on this issue is that, non-compliance with Section 97 and/or Section 99 of the Sherifs and Civil Process Act and the rules 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 noncompliance is entitled ex debito justitiae to have same set aside as was done in the cases of SKENCONSULT (NIG) LTD VS UKEY (1981) 1 SC, NWABUEZE VS OBI-OKOYE (1988) 4 NWLR (PT 91) 664, NEPA VS ONAH (1997) 1 NWLR (PT 484) 680, 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. PER UWANI MUSA ABBA AJI, JCA

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SHODIPE Justice of The Court of Appeal of Nigeria

Between

MR. SYLVESTER MAKO Appellant(s)

AND

BARRISTER FELICIA B. UMOH Respondent(s)

HON. JUSTICE UWANI MUSA ABBA AJI, JCA (Delivering the leading Judgment): This is an appeal against the Ruling of Honourable Justice A. O. Adeniyi of the High Court of Justice of the Federal Capital Territory, Holden at Lugbe, Abuja, delivered on the 31st day of March 2008.
The Respondent, as plaintiff in the lower Court as 1st, 2nd and 3rd Defendants respectively, claimed for:-
1. A declaration that the Plaintiff is entitled to quiet possession of the property situated at House 46, Drive 2, Prince and Princess Estate, Duboyi, Abuja, being a sitting tenant, irrespective of the change of title between the 1st Defendant (the Appellant) and the 2nd Defendant.
2. A claim of the sum of five million Naira (415, 000,000.00) only being special damages for trespass Jointly and severally from all the Defendants.
3. A claim of the sum of Ten Million Naira (N10, 000,000.00) only being general damages for trespass jointly and severally from all the Defendants.
4. A claim of five Hundred Thousand Naira (N500, 000.00) only as cost of action jointly and severally, from all the Defendants.
The Appellant (1st Defendant) filed a motion on Notice against the Respondent (plaintiff) challenging the competence of the suit and prayed for the following reliefs.
1. An Order setting aside the writ of summons issued in that suit against the Appellant for being incurably defective, invalid, null and void.
2. An Order setting aside the purported service of the writ of summons and other originating processes in the suit on the Appellant (1st Defendant) for being effective, invalid and null and void.
3. An Order striking out the name of the Appellant from the suit as the Honourable court has no jurisdiction to entertain the suit against the Appellant.

The Appellant’s case was that the writ was not marked “Concurrent Writ” for service outside jurisdiction of the lower court and “30 days” mandatory period was not endorsed on the Writ served on the 1st Defendant (Appellant). Secondly, that the Appellant was not personally served with the originating processes having been served through his secretary or office administrator.
Dismissing the motion, the lower court held at pages 58 – 60 of the Records as follows:-
“…Even though I agree with the submission of learned counsel to the 1st Defendant that these defects are apparent on the face of the Writ meant for service on the 1st Defendant, however such defects, in my view are not so substantial as to invalidate the Writ itself. In this respect, I choose to align myself with the pro-active attitude of the Supreme Court as I am bound to, as courageously demonstrated in the case of BROAD BANK OF NIGERIA VS OLAYIWOLA & SONS LTD (2005) 3 NWLR (PT 912) 434. In this case, the Supreme Court held that the endorsement as to “30 days” mentioned in Section 99 of the sheriff and Civil Processes Act, is merely directory.

It should not therefore be used as a sword to defeat the end of justice of the case… I therefore hold…..that despite that there were indeed procedural defects in the Writ of Summons filed by the Plaintiff in this suit with regards to the insertion of the words “Concurrent Writ” and “30 days” as required by Sections 98 and 99 of the Sheriffs and Civil Processes Act, such defects, are not substantial enough to invalidate the writ itself.
Although I do agree and I accept that even on the face of the affidavit of service itself, the service of the writ on the 1st Defendant was irregular since same was not served personally on him, I am however mindful that this court, by its inherent powers and by virtue of Order 2 Rule 1 (1) of the Rules of this court, has the discretion to cure the defect in service. After all, the essence of service is to secure the attendance of a party in Court…”
The Appellant is dissatisfied with this Ruling and has appealed to this Honourable Court, vide a Notice of Appeal dated and filed on the 11th of April, 2008. The Appellant filed an Amended Notice of Appeal on the 13th of August, 2008 which was deemed properly filed by order of court on the 9th of February 2009.
The Grounds of Appeal, without their particulars are hereby reproduced:-
GROUNDS OF APPEAL:

GROUND ONE:
“The Learned trial Judge erred in law in holding that the obvious defect in the Writ of Summons; is a mere irregularity which are not substantial and can be cured when in the ruling delivered on 31/03/08, the court held:-
“… despite that there were indeed procedural defects in the Write of Summons filed by the Plaintiff in this suit…. such defects are not substantial enough to invalidate the writ itself.” (Page 4 of the Ruling); thereby entertaining a suit and commencing proceedings against the Appellant/1st Defendant with a defective writ

GROUND TWO:
The Learned trial Judge erred in the finding that a conditional appearance entered by the 1st Defendant/Appellant is an indication that he was served with the originating process and as such, is fully aware of the case against him when he held that:
“It is pertinent to note that the 1st Defendant, through his counsel filed a memorandum of Appearance to this suit on 21/12/07. The effect of this therefore is that the 1st Defendant is abundantly aware of the case against him as at that time. He was only protesting the manner in which the originating process has been served on him”
(Page 5 of the Ruling)
“I have no doubt in my mind that the 1st Defendant became aware of this suit as a result of the service effected by the Bailiff of this Court on 13/12/07. That to my mind explains why counsel filed a Memorandum of Appearance on his behalf” (page 5 of the Ruling).
Thereby commencing proceedings against the 1st Defendant without making him fully aware of not only the suit against him but also the case and claims against him.

GROUND FOUR:
The Learned Trial Judge erred in law when he, assumed jurisdiction over the Appellant and commenced proceedings against him when the suit was commenced with an invalid Writ of Summons and same not been served on the 1st Defendant.

GROUND FIVE:
The Trial Judge erred in law when he held as follows:-
“The Plaintiff is hereby ordered to amend the Writ of Summons meant for service on the 1st Defendant to include the endorsement “concurrent writ” and “30 days” where required to satisfy the quest of the 1st Defendant for which this protracted interlocutory battle was staged.”
“The amended Writ of Summons shall be served on the 1st and 2nd Defendants through their counsels” (Page 6 of the Ruling).
In compliance with the Rules and Practice of this court, parties filed and exchanged briefs of argument. In the Appellant’s brief settled by Ernest Annie Nwoye, Esq., five (5) issues were formulated for determination of the appeal.

ISSUE ONE:
Whether the Trial Judge was correct in holding that a defective Writ of Summons is not enough to invalidate the writ itself?

ISSUE TWO:
Whether the Trial Judge was correct in holding that a memorandum of conditional appearance filed by the Appellant is an indication of service of the Writ of Summons on him and in effect makes him abundantly aware of the case against him?

ISSUE THREE:
Whether the Trial Judge was correct in holding that the service of the Writ of Summons and other originating process on a fellow employee of the Appellant amounts to a service on the Appellant, and suffices in law?

ISSUE FOUR:
Whether the Trial Court has jurisdiction to entertain the suit and/or commence proceedings against the Appellant with a defective writ and invalid writ of summons, and more so, when the writ and other originating process have not been served on the Appellant?

ISSUE FIVE:
What is the proper order to make when a court is not properly seized of the matter for want of competence and jurisdiction?
The Respondent’s Brief, settled by Ocholi Enojo James, SAN, raised two grounds of preliminary objection as well as two issues for the determination of the appeal.
The grounds of the preliminary objection are to writ:
1. That the Honourable court lacks jurisdiction to hear and determine this Appeal as same is based on ground(s) of mixed law and facts and the requisite leave of either this Court or the tower court was not obtained before this appeal was filed.
2. This appeal and the ruling of the lower court are based on writ of summons no longer validly before the lower court The following issues were also formulated by counsel to the Respondent for the determination of this appeal namely:-
1. Whether defect in form if any, in the writ of summons in this suit is prejudicial to the Appellant and capable of invalidating this suit (distilled from ground one)
2. Whether the Appellant can be heard to complain of service at this stage, being abundantly aware of the suit against him (distilled from grounds 2 and 3).
At the hearing of the appeal, counsel for the Appellant Ernest Annie Nwoye, Esq., adopted and relied on the Appellant’s Brief of Argument dated 10th of February 2009 and filed on the 11th day of February 2009, and Reply Brief dated 10th March 2009 and filed on the 17th March 2009, and urged this Honourable court to allow the appeal and set aside the Ruling of the trial court.

Ocholi Enojo James, SAN, counsel for the Respondent adopted and relied on the Respondents Brief of Argument dated and filed on the 4th of March 2009 and urged this Honourable Court to hold that this appeal lacks merit and dismiss same in the interest of justice.
Before I proceed to consider the issues for determination, it is pertinent at this Juncture to consider the preliminary objection raised by the Respondent in his brief of argument, as a determination of this objection if successful will dispose of the entire appeal before this Honourable Court.

Ground 1
That the Honourable court lacks jurisdiction to hear and determine this Appeal as same is based on ground(s) of mixed law and facts and the requisite leave of either this Court or the lower court was not obtained before this appeal was filed.
In arguing this ground of preliminary objection, learned senior counsel for the Respondent submitted that this appeal is incurably incompetent in as much as there exists no right of appeal in this case.
According to him, this appeal is from an interlocutory decision of the lower court and it consists of grounds of fact and/or mixed law and facts and it is therefore mandatory that the leave of court be sought and obtained, before same is filed. He submitted further that the right of appeal only exists from interlocutory decision of the lower court if the ground of appeal involves question of law alone. He referred to Section 241 (1) (b) of the 1999 Constitution as well of the case of OLUWOLE V. L.S.D.P.C. (1983) NSCC (VOL. 14) 179 at 180.
He argued further that the Appellant herein agrees with the fact that the grounds of appeal are mixed law and facts, because a motion for leave to appeal dated 8th April, 2008 was filed on the same day before the lower court. However on 10th April, 2008, the lower court refused to grant the said leave. He placed reliance on the motion filed by the Appellant before the lower court. He also relied on Order 7 Rule 3 of the Court of Appeal Rules 2007.
According to learned counsel for the Respondent, in determining the nature and competency of a ground of appeal, the court is bound to read and consider the grounds of appeal and its particulars together.
He referred this Honourable court to the case of ORAKOSIM VS MENKITI (2001) 9 NWLR (PT 719) 529 at 536 para G-H as well as the case of OKEKE VS PETMAG NIG LTD (2005) 4 NWLR (PT 915) 245 at 268 paras E-G.
Learned senior counsel further submitted that the instant appeal is one of mixed law and facts and that ground two of the appeal is based on the finding of facts by the trial Court on page 59 of the Records. He submitted also that Ground Three was also based on the finding of fact by the lower court on page 60 of the Records.
According to the learned SAN, it is settled law that any ground of appeal that would require the evaluation of facts by the trial court before the law is applied is a question of mixed law and facts. He placed reliance on the case of ANSA VS ISHIE (1997) 7 NWLR (PT 610) 277 at 289 paras E-F.
He concluded on this ground by submitting that this appeal cannot effectively be determined without appraisal of the facts involved. The leave of this Honourable Court having not been obtained before filing this appeal renders the entire appeal incompetent and urged this Honourable Court to strike out the entire appeal.

Ground 2
“That this appeal and the ruling of the lower court are based on writ of summons no longer validly before the lower court.”
In arguing this ground, learned senior counsel for the Respondent submitted that from the Appellant’s preliminary objection before the trial court and this appeal, it is obvious that the Appellant’s complaint is based on the original writ of summons filed in the suit dated 7th December, 2007 and filed on the same day as shown on pages 1-12 of the Records. In pages 50-51 the trial court struck out the preliminary objection filed by the 1st Defendant/Appellant. However, on the 21sl of January, 2008, the Respondent had filed a motion on notice seeking to amend the writ of summons and statement of claim which was granted on the 21st February, 2008 (page 51 of the Records). It is therefore the argument of learned counsel for the Respondent that the Writ of Summons before the Court is the one filed on the 22nd of February, 2008 pursuant to the order of the trial court dated 21st February, 2008.
He therefore submitted that the effect of amendment is that what stood before the amendment is no longer material and no longer defines the issues to be tried. He referred to the following cases:
1. SCC NIG LTD VS ELEMADU (2005) 7 NWLR (PT923) 28 at 80-81 paras G-A
2. VULCAN GASES LTD VS GFIG (2001) FWLR (PT53) 1 at 26 paras D-F
Learned senior counsel submitted that the implication of the above authorities is that the original writ of summons is no, longer before the court and cannot be subject to any court decision and as such he urged this Honourable court to dismiss or strike out the appeal on this ground.
In his Reply Brief, counsel for the Appellant argued in response to Ground One of the Preliminary Objection, that the appeal is competent as there is a right of appeal of the Appellant’s in this case. He relied on Section 243 of the 1999 Constitution, and argued further that since the Appellant is a party to the suit, he needs no leave to exercise his right of appeal. His further argument is that the grounds of appeal raise only questions of law and as such no leave is required as his appeal is of right.

Counsel for the Appellant further submitted that on the 8th of April, 2008 he filed a motion on Notice for leave to appeal and on the 10th of April, 2008, the lower court advised and gave the opinion that the grounds of appeal are of law alone and so no leave was required. He therefore took the hint of the court and withdrew the motion. He further argued that the law is trite that when a ground of appeal is hinged on the error emanating from the conclusion on the undisputed facts, it is a question for law. He relied on the authority of OKEKE VS PETMAG BIG LTD (2005) 4 NWLR (PT 915) 245 at 268 paras E-G. He therefore submitted that grounds 2 and 3 of the Grounds of Appeal are not founded on disputed facts but on the conclusion on the facts and urged this court to hold that the grounds of appeal are an questions of law and being so, the appeal is competent and sustainable.
In his reply to ground two, of the preliminary objection, counsel for the Appellant submitted that the issue raised in this ground is fresh, novel and misconceived. According to him, the issue that the original writ of summons having been amended is no longer valid before the Court was never raised at the lower court. It is his view that the Respondent in his reply to the Appellant’s brief must confine himself within the issues arising from the grounds of appeal. He placed reliance on the case of ANYAFULU VS AGAZIE (2007) ALL FWLR (Pt.344) at 145. He argued further that the subject of this appeal is on the Ruling delivered and not on whether the appeal can be maintained or sustained on the original Writ of Summons which has been amended. According to him, this is a new and fresh issue and cannot be allowed. He referred to the case of DIVINE IDEAS LTD VS UMORU (2007) ALL FWLR (PT380) 1468 at 1478 paras E-G He therefore concluded by submitting that the issue whether the Appellant’s preliminary objection can be maintained or sustained on the original Writ of Summons and service of same, which was amended was not pronounced upon by the trial court because it did not come up. He therefore urged this Honourable court to disregard and refuse it.

After a careful consideration of the grounds of the preliminary objection, it is my respectful view that the ground one must fail. In my view, the grounds of appeal under contention are grounds of law alone. For further clarification, the Grounds of Appeal are hereby reproduced.

GROUND TWO:
The Learned trial Judge erred in the finding that a conditional appearance entered by the 1st Defendant/Appellant is an indication that he was served with the originating process and as such, is fully aware of the case against him when he held that:
“It is pertinent to note that the 1st Defendant, through his counsel filed a memorandum of Appearance to this suit on 21/12/07. The effect of this therefore is that the 1st Defendant is abundantly aware of the case against him as at that time. He was only protesting the manner in which the originating process has been served on him …….”
(Page 5 of the Ruling)
“I have no doubt in my mind that the 1st Defendant became aware of this suit as a result of the service effected by the Bailiff of this Court on 13/12/07. That to my mind explains why counsel filed a Memorandum of Appearance on his behalf” (page 5 of the Ruling).
Thereby commencing proceedings against the 1st Defendant without making him fully aware of not only the suit against him but also the case and claims against him.

GROUND THREE:
The Trial Judge erred in finding that service of originating process on a co-worker of the 1st Defendant amounts to proper service on the 1st Defendant and suffices in law, when he held that:
“The records of this Court further revealed that on 13th December, 2007, the Bailiff of this Court, Obaje Danjuma, served the Writ of Summons in this suit of the 1st Defendant at the U.B.A. Awka Branch, Anambra State, albeit, through one John Nwikwe, an office administrator.”
(Page 5 of the Ruling).
I have painstakingly reproduced these grounds of appeal for ease of reference and I am of the humble view that these grounds are based not on the facts (because they are undisputed) but on the conclusion which was arrived at based on these facts. This to my mind raises issues of law and not facts. It is trite that complaints of error emanating from a conclusion on undisputed facts are a ground of law. See OKEKE VS PETMAG NIG LTD (2005) 4 NWLR (PT 915) 245. It is not in dispute that the 1st Defendant/Appellant filed a Memorandum of Conditional Appearance, neither is it in dispute that the originating processes were served on the 1st Defendant/Appellant, through one John Nwikwe. What is in dispute is the conclusion reached by the trial court based on these facts.
It is therefore my view that these grounds being grounds of law, this leg of the preliminary objection must fail as no leave is required to appeal as the grounds of appeal involve questions of law alone. See also the case of F.C.M.B. VS NIMR (2009) 16 NWLR (PT 1168) 468.

Concerning the 2nd ground of the preliminary objection, I agree with the learned counsel for the Appellant that this ground of objection is a fresh issue, novel and it is misconceived. The issue that the original writ of summons having being amended is no longer valid before the court was never raised at the lower court.
The Appellant’s preliminary objection which is the subject of this appeal was filed argued and ruled on. The Respondent challenged the Appellant’s preliminary objection on merit and won and the Appellant filed this appeal against the said Ruling. The Respondent could not therefore at this stage raise the question, whether this appeal can be maintained or sustained on the original writ of summons which has been amended. This issue was not pronounced upon by the trial court and no leave of this court was sought to introduce this new issue. See DIVINE IDEAS LTD VS UMORU (2007) ALL FWLR (PT 380) 1468.
This ground of objection is incompetent and it is hereby struck out.
Having dispensed with the issues of the preliminary objections, the issues canvassed by the counsel for both Appellant and Respondent will be considered for what they are worth.
The learned counsel for the Appellant distilled five (5) issues for determination of this appeal while counsel for the Respondent distilled two (2) issues. The issues as enumerated by learned counsel for the Respondent will be considered in the determination of this appeal as it encapsulate all the 5 issues formulated by the Appellant. The issues are:-
1. Whether defect in form if any, in the writ of summons in this suit is prejudicial to the Appellant and capable of invalidating this suit.
2. Whether the Appellant can be heard to complain of service at this stage, being abundantly aware of the suit against him.
In arguing the issue of defect in form of the writ of summons, learned counsel for the Appellant submitted that where an act or conduct fails to meet the requirements prescribed by law, such noncompliance renders the act or conduct devoid of any legal effect. He relied on the case of NWOKOLO VS OLUNNIA (1990) 3 NWLR (PT 136) 22 at 32.
He argued further that the trial court, having recognised that the Writ of Summons before it was defective for non-compliance with the Sherif and Civil Process Act CAP 405 of LFN 1990 had no writ before it and therefore it had no jurisdiction over the Appellant since it is not competent. He placed reliance on the case of OKOLO VS UNION BANK (2004) 1 SC (reprint) PT.1 PG.1 at 30: KIDA VS OGUNMOLA (2006) 6 SC (Reprint) 153. It is the further submission of the learned counsel for the Appellant that the writ being defective in form had no effect in law and as such the conditional appearance entered in by the Appellant could not be construed to mean that the Appellant had submitted to the jurisdiction of the Court but that the law is settled that a defendant who desires to object to the regularity of the proceedings by which the Plaintiff seeks to compel his appearance, may enter a conditional appearance, or an appearance under protest, and then apply to Court to set aside the proceedings. He relied on ADEGOKE MOTORS VS ADESANYA (1989) 55C (Reprint) 113; NWABUEZE VS OKOYE (1988) 4 NWLR (PT 91) 644; HOLMAN VS KIGO BROTHERS (1980) 8-11 SC (Reprint) 44. He respectfully urged this Honourable Court to resolve this issue in his favour.

On his part, learned counsel for the Respondent argued that leave of the trial court to issue and serve the writ outside the jurisdiction of the court was earlier sought and obtained before the writ was issued. The motion praying for that leave exparte was filed on the 5th of December, 2007 and granted on the 7th December, 2007.
According to him, the strenuous argument of the Appellant is misconceived and improperly founded. He argued that a careful reading and appreciation of the said Section 98 of the Sheriff and Civil Process Act CAP 407 LFN 1990, reveals that issuance of a concurrent writ is not mandatory. It is his view that the court has moved away from the era of technicality to the era of substantial justice. He relied on the authority of B.B.N L TO VS OLAYIWOLA & SONS L TD (2005) 3 NWLR (PT 912) 434 at 453.
He respectfully submitted that a writ of summons can only become void by an intrinsic and substantial defect in the writ itself per the court in KISARI INVESTMENT LTD VS LA-TERMINAL CO. LTD (2001) FWLR (PT 66) 766 at 789 That since none of the complaint of the Appellant is on any intrinsic constituents of the writ of summons, he respectfully urged this court to hold that the writ of summons in this suit substantially complies with the law and cannot be set aside. He relied also on Order 4 rule 2 of the F.C.T. High Court (Civil Procedure) Rules 2004 as well as Order 24(2) of the F.C.T. High Court (Civil Procedure) Rules 2004 to submit that the order made by the lower court at page 61 of the Records to effect amendment of the writ had since been complied with and that by the authority of MEDIA TECH NIG LTD VS ADESINA (2005) 1 NWLR (PT 908) 461 at 472 473;SONUGA & ORS VS ANADON & SONS (1967) NSCC 70, the Appellant has not shown that he has suffered any injustice or prejudice with regard to defect, if any, in the writ of summons in the instant case and that by virtue of the order of the court for amendment, the defect if any, has been taken care of, ALATEDE VS FALODE & ANR (1966) ANLR 101 at 103. He therefore respectfully urged this Honourable Court to resolve this issue in favour of the Respondent.

In his reply to Issue 1 of the Respondent’s Brief, learned counsel for the Appellant submitted that there is no rule of law which mandates the Appellant to show, by evidence that he has been or would be prejudiced by non-compliance by the Respondent with a condition precedent to the commencement of a valid action. He posited further that Section 96, 97, 98, and 99 of the Sheriffs and Civil Process Act LFN 1990 ore mandatory statutory requirements which must be met before a suit is validly commenced for service outside the jurisdiction of the trial court.
He placed reliance on the following authorities; SAUDE VS ABDULLAHI (1989) 4 NWLR (PT 116) 387 at 442; CHUKWUOGOR VS CHUKWUOGOR (2007) ALL FWLR (PT 349/0 1154 at 1168-1169; KIDA VS OGUNMOLA (Supra); CCCT & C.S. LTD VS EKPO (2008) ALL FWLR (PT 418) 198 at 227. He therefore urged this Honourable Court to hold that noncompliance with the mandatory provisions of the law goes to the root of the matter and allow the appeal.

Issue 2
Whether the Appellant can be heard to complain of service at this stage, being abundantly aware of the suit against him.
Learned counsel for the Appellant submitted with respect, that the trial court over simplified the very essence and importance of service of originating process on the Defendant. According to him, assuming without conceding that the writ of summons is valid, it is trite law that after its issue, a writ of summons or any originating process must be properly served on the defendant. He relied on the cases of KIDA VS OGUNMOLA (Supra) 152; OBIOMONURE VS ERINOSHO (1966) 1 ALL NLR 250; MBADINUJU VS EZUKA (1994) 10 SCNJ 109.
It is his submission that where the law prescribes personal service, not serving the Defendant personally, amounts to no service in law. He relied on KISARI VS LA-TERMINAL (2001) 25 WRN 31; ODUTOLA VS KAYODE (1994) 2 NWLR (PT423) 15; DANIELS VS INSIGHT ENGINEERING LTD (2002) 10 NWLR (PT 775) 231 at 234; SGBN VS ADEWUNMI (2003) 4 SC (PT1) 93; and AUTO IMPORT EXPORT VS ADEBAYO (2000) 18 NWLR (PT 799) 554,
On the strength of the above, learned counsel for the Appellant humbly submitted that there was no service of the Writ of Summons and other originating processes on the Appellant and urged this Honourable Court to hold that service of a process on a party to a proceeding is crucial and fundamental and failure to do so deprives the court of competence and jurisdiction against the Appellant and should therefore allow the appeal on this issue. He placed reliance on the following authorities; OGUNDIPE VS AKINLOYE (2002) 10 NWLR (PT 775) 312 at 333; KARIM VS N.A. (2001) 4 NWLR (PT 758) 729; MADUKOLU VS NKEMDILIM (1962) 2 SCNLR; TSOKWA MOTORS VS UBA (2008) 33 NSCQR; NEW NIGERIAN NEWSPAPER VS OTTEH (1992) 4 NWLR (PT 237) 612; KIDA VS OGUNMOLA (Supra); UBA PLC VS OKONKWO (2004) 5 NWLR (PT 867) 445; and ODUA INVEST. CO. LTD VS TALABI (1987) 7 SCNJ, 6000.
In his response, learned counsel for the Respondent submitted with respect that, since the Appellant is before the court, the insistence of the Appellant on the correctness of service is not in the interest of justice. He submitted further that the lower court was right to have held that the service on the Appellant is sufficient in law. He relied on the case of PANACHE COMMUNICATIONS LTS VS AIKHOMU (1990) 2 NWLR (PT 327) 420 at 531, and concluded by submitting with respect, that the lower court has the jurisdiction to try this suit and urged this Honourable Court to so hold and resolved this issue in favour of the respondent.

In his reply to Issue 2 of the Respondent’s Brief, learned counsel for the Appellant, submitted that the learned counsel to the Respondent, attempted, albeit in vain, to trivialize the very essence of proper service of originating process on the Defendant, as a condition precedent to commencement of proceedings as well as the competence and jurisdiction of the court to hear and determine the suit. He relied on the case of TSOKWA MOTORS VS UBA (2008) 33 NSCQR 33 at 58-59.
He respectfully urged this Honourable Court to discountenance the argument of the Respondent in his issue 2 as it has long been established the essence of service is not only for the Defendant to be aware of the suit against him, but also to know the very claims the Plaintiff has against him. He relied on DANIELS VS INSIGHT ENGINEERING LTD (2002) 10 NWLR (PT 775) 231 at 234. He also urged this Honourable Court to discountenance the authority of PANACHE COMMUNICATIONS LTS VS AIKHOMU (Supra) cited by the Respondent as being irrelevant to this appeal and hold with respect that, the case is non-sequitur. Learned counsel urged this court to allow the appeal and set aside the ruling of the lower court.
I have carefully perused through all the issues canvassed by both counsel and it is my humble view that the crux of this appeal is the interpretation to Sections 98 and 99 of the Sheriffs and Civil Process Act CAP 407 LFN 1990. For ease of reference, the Sections are reproduced hereunder:
Section 98:
“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.”
Section 99:
“The period specified in a Writ of Summons for service under this Part as the period within which a defendant is required to answer before the court to the writ of summons shall be not less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that longer period.”

It is trite law that, rules or provisions of statutes are meant to be obeyed. Where there are mandatory provisions, such provisions should be obeyed. This thought was encapsulated by the Supreme Court in CCCT & C.S. LTD VS EKPO (2008) ALL FWLR (PT 418) 198 at 229 paras B-C thus:
“A court of law ignoring the mandatory provisions of statutes which are mandatory or obligatory and tow the line of justice ….has not done justice. Courts of law can only do so in the absence of a mandatory or obligatory provision of a statute. In other words, where the provisions of a statute are mandatory or obligatory, courts of law cannot legitimately brush the provisions aside just because they want to do justice in the matter.”
Similarly in KIDA VS OGUNMOLA (2006) 6 SCNJ 17B, PER Oguntade, JSC,
“Section 97 …prescribes that every writ of summons for service outside the state whose High Court is issuing the writ shall carry the endorsement set out in the Section. It is only when this has been done that the writ of summons can validly be served outside jurisdiction.”

It is also settled that the issuance of civil process and service of the same, are distinct though inter related steps in civil litigation. A writ may be valid while its service as in the instant case leading to this appeal may suffer from some defect. See ADEGOKE MOTORS VS ADESANYA (1989) 3 NWLR (PT 109) 250. This is because where a writ of summons has been regularly issued without compliance with the Act, what is void and to be set aside, is the service and not the writ itself. See NWABUEZE VS OBI-OKOYE (1988) 4 NWLR (PT 91) 664.
Where a defendant is served with a writ of summons in breach of Sections 97 and 99 of the Sherifs and Civil Process Act, he has a choice either to object to the service by applying to have it set aside, and the court ex debito justitiae will accede to the application or ignore the defect and proceed to take steps in the matter. Where the latter is the case, his application to set aside must be refused.

In the instant appeal, the Appellant entered a conditional appearance to the suit, the subject of the present appeal and then brought an application inter alia to set the writ of summons issued in this suit for being incurably defective and to also set aside the service of the writ of summons for been incurably defective. Where therefore, a defendant enters a conditional appearance, as was done by the Appellant in the instant appeal, neither could he be said to have submitted to the jurisdiction of the court nor being abundantly aware of the case and claims against him. The essence of the appearance is to enable his complaint and resistance on the competence of the suit and the proceedings against him to be heard. He may have picked the hint of the suit from another source other than from the proper source, that is, proper service. That does not amount in law as having the effect of his being served with the originating process, giving him notice of the case and claims against him and conferring jurisdiction on the trial court to commence proceeding against him, as the trial court erroneously held in the instant appeal. The memorandum of conditional appearance was filed specifically to enable the Appellant challenge the proceedings commencing against him without service of the writ and other originating process on him. A defendant who had only appeared to protest the exercise of jurisdiction over him has not voluntarily submitted to the jurisdiction of the court. See HOLMAN VS KIGO BROTHERS (1980) 8-11 SC (Reprint) 44. Knowledge of the case and the claims could not therefore be imposed on a defendant by merely filling a memorandum of conditional appearance.
In the instant appeal, the learned trial judge found that there were indeed procedural defects in the writ of summons filed by the Respondent in the suit with regards to the insertion of the words, “concurrent Writ” and “30days” as required by Sections 98 and 99 of the Sherifs and Civil Process Act, but concluded that such defects are not substantial enough to in valid the writ.

On the 2nd arm of the application challenging the purported service of the Writ of Summons on the Appellant, the learned trial judge found that the Appellant having filed a memorandum of conditional appearance, the effect is that the Appellant is abundantly aware of the case against him but was only protesting the manner in which the originating process was served on him. However, the court invoked its powers under Order 2 Rule 1 (2) of the Rules of the High court of the federal Capital Territory to cure the defect in service.
While I may agree with the learned trial judge that some procedural defects like the insertion of the words “concurrent Writ” and “30 days” as required by Sections 98 and 99 of the Act may be termed or considered as an irregularity that may be cured, on the authority of BROAD BANK OF NIGERIA LTD VS OLAYINOLA & SONS LTD (2005) 3 NWLR (PT 912) 434, the same may not be so of requirement of personal service on a defendant of all the originating process and Order 2 Rule 1(1) of the Rules of the Court of the FCT, 2004 cannot cure such defect. The case of BROAD BANK OF NIGERIA LTD VS OLAYINOLA & SONS LTD (supra) is decided on its own peculiar circumstances, and the case did not pronounce that personal service is as irregularity which can be cured unless it is waived.

The case of PANACHE COMMUNICATIONS LTS VS AIKHOMU (Supra) relied upon by the Respondent’s counsel, is not an authority that personal service can be by substituted means, that is, through a third party on a defendant unless the defendant agreed with service effected on a third party and accepted same.
In the recent case of OWNERS OF THE MV “ARABELLA” VS N.A.I.C. (2008) 11 (PT 1097) 182T the Supreme Court of Nigeria held that service of a writ out of jurisdiction is not a matter of court’s discretion. Not only is it provided for in the Rules of Court….” it is crucial to the prosecution of an action in the court. Accordingly without proper service, no valid appearance can be entered by a defendant in a suit although a defendant is at liberty to and can enter an appearance on a protest or a conditional appearance. The essence of service in our procedural or adjectival law is to ensure that the party is put on notice of the pending litigation. Failure to give notice of proceeding to an opposing party in a case where service of process is required is fundamental omission, which render such proceedings void because the court has no jurisdiction.
All I have been saying to the question set out on this issue is that, non-compliance with Section 97 and/or Section 99 of the Sherifs and Civil Process Act and the rules 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 noncompliance is entitled ex debito justitiae to have same set aside as was done in the cases of SKENCONSULT (NIG) LTD VS UKEY (1981) 1 SC, NWABUEZE VS OBI-OKOYE (1988) 4 NWLR (PT 91) 664, NEPA VS ONAH (1997) 1 NWLR (PT 484) 680, 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. In the instant appeal, the Appellant from the onset of the proceeding filed a conditional memorandum of appearance and protested both the insurance of the writ of summons for service out of jurisdiction and its service which contravenes the provisions of the Sections 97 and 99 of the Sherifs and Civil Process Act and the Appellant is entitled ex debito justitiae to have the process set aside.
Based on the above therefore, the two issues considered are resolved in favour of the Appellant against the Respondents. The appeal therefore succeeds and it is hereby allowed.
There shall be costs in favour of the Appellant against the Respondent assessed at N20, 000.00.

JIMI OLUKAYODE BADA, J.C.A: I had a preview of the lead Judgment of my Learned brother UWANI MUSA ABBA AJI, JCA, just delivered and I agree with my Lord’s reasoning and conclusion.
Accordingly, I also allow the appeal and endorse the consequential orders made in the said lead Judgment.

AYOBODEO LOKULO-SODIPE, J.C.A: I have had the privilege of reading in advance the Judgment of my learned brother, UWANI MUSA ABBA AJI, JCA. I am in complete agreement with His Lordship’s reasoning and conclusions. I have nothing to add. I abide by all the orders made therein.

Appearances

Ernest Nwoye, Esq., with C. Okonkwo, Esq.For Appellant

AND

James Ocholi, SAN, with Patrick Igbafe, Esq.,
Ochonia Ainoko, Esq., Ugochukwu Ashibugwu, Esq.,For Respondent