MRS. SILIFAT ADEBUKOLA ATUNRASE v. MR. FEMI OLAIYA AIYEGBUSI (2019)

MRS. SILIFAT ADEBUKOLA ATUNRASE v. MR. FEMI OLAIYA AIYEGBUSI

(2019)LCN/13634(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 9th day of July, 2019

CA/IB/277/2016

RATIO

SERVICE OF WRIT OF SUMMONS INTERSTATE : SECTION 99 OF THE SHERIFF AND CIVIL PROCESS ACT

A good starting base would be to consider the case law as it was since the decision in the case of Skenconsult v. Ukey (1981) 1 SC 1 in respect of Section 99 of the Sheriff and Civil process Act and how case law on the subject developed and digressed over time and applying the current position to the facts of this case.
Earlier, in the case of Skenconsult (Nig) Ltd & Anor v. Godwin Sekondy Ukey (supra) the Supreme Court had held that where a Writ of Summons originates in one state for service in another. It is mandatory that a period of at least 30 days between date of services and date stated for entry of appearance in Court and that failure to comply with the Provisions of Section 99 of the Sheriffs and Civil Process Act means that there has been no service. In Skenconsult, the Supreme Court further held that such defects were fundamental affecting competence and jurisdiction and were not mere irregularities and that mere acquiescence by the parties cannot give the Court jurisdiction. PER NONYEREM OKORONKWO, J.C.A.

SERVICE OF WRIT OF SUMMONS: THE NEED TO RAISE A PRELIMINARY OBJECTION IF THE PROVISIONS OF SECTION 99 OF THE SHERRIF AND CIVIL PROCESS ACT ARE NOT FOLLOWED

In Ezomo v. Oyakhire (1985) 2 SC 260 the period of time between date of service of the Writ of Summons issued out of Bendel State for service for on the defendant in Anambra State and the return date stated on the Writ was less than the mandatory thirty days required by Section 99. On appeal before the Supreme Court against the plaintiff, the contention was the non-compliance with Section 99 in the service of the Writ . The Court held that as the defendant did not take Preliminary Objection to the service of the objectionable Writ but proceeded to file pleadings and to full trial of the case on the merit, he (the defendant) must be deemed to waive his right under Section 99 of the Act. It must be noted as the Court also did, that in the Skenconsult case, the defendant raised a Preliminary Objection but took further step in the matter. PER NONYEREM OKORONKWO, J.C.A.

NON COMPLIANCE OF SECTIONS 97 AND 99 OF THE SHERRIFF AND CIVIL PROCESS ACT
However, the Supreme Court in Odu?a Investment Co. Ltd. v. Talabi (1997) 7 SCNJ 600 a full Court of the Supreme Court in relation to non-compliance with Section 97 and 99 of the Act held that non-compliance renderded the Writ voidance and that a defendant affected is entitled to ex debito justiciae to have same set aside provided he has not taken fresh steps in the matter which amounted to waiver. This was followed by Uchendu v. Ogboni (1999) 4 SCNJ 64 at 83-84, where inspite of the defect pursuant to Sections 97 and 99 of the Act, the defendant submitted to jurisdiction, up to judgment. It was held that having so submitted, he (defendant) could not be heard to complain objection to non-compliance must be taken before trial. This is the prevailing situation of present time. PER NONYEREM OKORONKWO, J.C.A.

WORDS AND MEANING: BENEFICIAL OWNER AND SEIZED IN FEE SIMPLE

In the case of Lasisi Lasupo Alli v. Chief J.O. Ikusebiala (1985) 5 SC 93, the Supreme Court, per Karibi-Whyte JSC, explained that phrase in the following words:
The expression beneficial owner and “seized in fee simple are conveyancing terms of important legal significance. See Section 100 Conveyancing and Property Law of Oyo State. Parker v. Judkin (1931) All ER. Rep. 222,227 Smart v. Coker (1962) 2 All NLR 186. Where a person is described as beneficial owner, it means such owner enjoys completely or all the rights and privileges legally possible for an owner to have in respect of such land. Similarly, an owner in fee simple means that such person has the largest estate possible in respect of the land thus where a person is described in his personal capacity in a conveyance, it means invariably he was capable of conveying the estate he claims to have. PER NONYEREM OKORONKWO, J.C.A.

CONTRACT: IF A CONTRACT OF FAILS , THEN THE PERSON WHO PAID HAS A RIGHT TO CLAIM HIS MONEY BACK

The legal position is that a party who has paid money to another person for a consideration that has totally failed under a contract is entitled to claim the money back from the other.G.N. Nwolisah (trading under the name and style of G.B. Vitalis Co. Nig) v. Paschal Nwabufor (trading under the name and style of Paskodi Maritime Agencies) (2011) 6-7 SC (pt. 11) 138. PER NONYEREM OKORONKWO, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria

Between

MRS. SILIFAT ADEBUKOLA ATUNRASE
(Substituted for Chief Samuel Adebola Atunrase (deceased) by Order of Court dated 14/10/2014) Appellant(s)

AND

MR. FEMI OLAIYA AIYEGBUSI Respondent(s)

NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): In Suit No. HCT/110/08 before the Ogun State High Court Ota, the respondent herein as plaintiff sued the appellant in this Court for the following reliefs:
1. The sum of N2,154,952 (Two Million, One Hundred and Fifty-Four Thousand, Nine Hundred and Fifty-two Naira only) as special damages against the defendant.
2. An interest on the said sum of N2,154,952 (Two Million, One Hundred and Fifty-Four Thousand, Nine Hundred and Fifty-two Naira only) at the rate of 21% from the date of judgment until final liquidation.
3. The sum of N500,000:00 (Five Hundred Thousand Naira Only) as general damages against the defendant.
4. Cost of this action.

Pleadings were duly filed and exchanged and the matter proceeded to hearing after some adjustments were made consequent upon the death of the original plaintiff who was substituted by the wife the present appellant. In the end, judgment was delivered by the trial Court in favour of the plaintiff/respondent whereupon the defendant/appellant appealed to this Court.

Background Facts

The respondent, upon the

representation of the appellant that he had plots of land for sale at Isheri which falls within Lagos and Ogun States entered into negotiation with the appellant and consequent thereupon bought two plots of land from the appellant at a purchase price of N800,000:00 (Eight Hundred Thousand Naira) sometimes in 2004. The parties in culmination of their agreement entered into and executed a Deed of Assignment Exhibit 5 whereby the Assignor ?as beneficial owner? covenanted with the ?assignee as follows:
(a) To deliver to the Assignee peaceable and uninterrupted possession of the Demised Land;
(b) That the Assignee of his successors in title shall enjoy quiet possession without any interruption or any disturbances from the Assignor of persons acting for, under, through of in trust for them;
(c) To do all that is necessary on his part toward obtaining the consent of Governor of Ogun State to this transaction and the perfection of the Assignee?s title to the demised land. PROVIDED always that the Assignee shall pay all the necessary taxes, levies, dues, or whatever payment demanded for this purpose
?(d) The Assignor

undertake to indemnity the Assignee against all distress, actions, proceedings, claims, demands, costs, damages and expenses, which the Assignee incurred by reason of the Assignor?s failure to observe the above covenants.

And the Assignee also covenanted the usual Assignees covenants

The respondent upon being let into possession began erecting structures on the land but while this was on going, agents of the Ogun State Government came on the premises and demolished respondent?s structures on the Order of the Ogun State Government who asserted that the land falls within the River View Residential Estate Scheme 1 Area 2 of Ogun State Government. Respondent then sued the appellant claiming as indicated earlier.

The defendant/appellant concedes to the sale of the two plots of land and the agreement or assignment as pleaded but contend that the respondent’s possession and developing the land as advised and that while the land laid under-developed for all the while, the Ogun State Government set out to acquire the parcels of land in the precinct including the land of the respondent contending thereby that the act of acquisition by the

Ogun State Government was a new intervening factor not within the contemplation of neither party.

It was also raised and contended in the pleadings of the appellant that in commencing the suit, the respondent as plaintiff failed to comply with the mandatory provisions of Sections 97 and 99 of the Sheriffs and Civil Process Act in that the Originating Writ of Summons by which the action was brought was not endorsed for service out of jurisdiction of Ogun State and for service in Lagos State and that the time specified thereon for entry of appearance in Court was 8 days less that the statutory minimum of 30 days.

In the judgment of the trial Court per Mobolaji Ojo (Judge), after an extensive review of the facts and the law particularly in relation to the covenant contained in Exhibit 5 ? the Deed of Assignment and of failure of consideration held the appellant liable to the respondent?s claims as pleaded and that as the appellant did not raise any objection to jurisdiction for non-compliance under Section 97 and 99 of the Sheriffs and Civil Process Act, the appellant waived his right to do so and yielded to the jurisdiction of the trial

Court.

Being dissatisfied, the appellant lodged this appeal on 23/11/15 upon the following grounds of appeal.

Grounds of Appeal
Ground One
1. The learned trial Judge erred in law when having found as complained by the Defendant/Appellant that the Writ of Summons by which the claimant/respondent commenced the action before the lower Court which was endorsed for service on the original defendant in Lagos out of the jurisdiction of the honourable Court is not in compliance with Sections 97 and 99 of the Sheriffs and Civil Processes Act refused to set aside the said Writ, on the basis that the Defendant/ appellant waived the non-compliance, assumed jurisdiction over the defendant and went on to deliver judgment in favour of the claimant/respondent.

Particulars of Error
(a) The provisions of Section 97 of the Sheriffs and Civil Processes Act is mandatory and non-compliance as found by the lower Court goes to the jurisdiction of the lower Court to entertain the matter.
(b) The non-compliance with Section 97 of the Sheriffs and Civil Processes Act goes to the root of the matter and the jurisdiction of the lower Court to

entertain the matter.
(c) The failure by the claimant/respondent to endorse the Writ as required under Section 97 of the Sheriffs and Civil Processes Act which was challenged by the defendant/appellant and as rightly held by the learned trial Judge deprives the lower Court of jurisdiction to adjudicate over the defendant/appellant.
(d) A factor which deprives the lower Court of jurisdiction is not such that can be waived by the conduct of the parties in the matter.
(e) The defendant/appellant having filed a conditional appearance and raised the non-compliance of the said Writ of Summons with Sections 97 and 99 of the Sheriffs and Civil Processes Act, the competency of the action and the jurisdiction of the lower Court determine the matter in her defence to the action, the lower Court has a duty to determine the issue of jurisdiction before calling on the defendant to state her defence to the case.
?(f) The decision of the learned trial Judge that the defendant/appellant who had objected to the said Writ of Summons, he held is in non-compliance with Sections 97 and 99 of the Sheriffs and Civil Processes Act and coupled with the

Supreme Court decision in the case of OWNERS OF MV ?ARABELLA? v. NIGERIA AGRICULTURAL INSURANCE CORPORATION (NAIC) 2008 ALL FWLR (PT. 443) on the issue of a properly endorsed Writ of Summons and the provisions of Section 97 of the Sheriffs and Civil Processes Act duly cited and relied upon by the Defendant/Appellant, had waived the non-compliance is contrary to law.
(g) The learned trial Judge decision that the defendant/appellant had waived the non-compliance and is estopped from raising the non-compliance of the Writ of Summons, in view of the processes filed before him by the defendant/appellant raising the competency of the action and the lower Court jurisdiction to entertain the matter is wrong in law.
(h) By refusing to set aside the Writ of Summons against the defendant/appellant and assuming jurisdiction over the matter the learned trial Judge treated the non-compliance with Section 97 of the Sheriffs and Civil Processes Act as a mere irregularity which can be waived.

Ground Two
The lower Court erred in law when it refused to follow the decisions of the Supreme Court in

OWNERS OF MV ?ARABELLA V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (NAIC) 2008 FWLR (PT. 443) 1208. Which authority is binding on the lower Court and was duly cited and relied on by the defendant/appellant.

Particulars of Error
(a) It is settled law and basic principle in the administration of Justice in Nigeria that a Court is bound to follow the decision of a higher Court in the judicial hierarchy.
(b) The decision of the Supreme Court on the same facts is binding on all courts in Nigeria including the lower Court.
(c) The question in issue in this case that is failure to properly endourse a Writ of Summons as required by Section 97 of the Sheriffs and Civil Processes Act was the same question in issue in the case of OWNERS OF MV ?ARABELLA V. NAIC Supra.

Ground Three
The learned trial Judge erred in law, having held as complained by the defendant/ appellant that the Writ of Summons dated 18/6/2008 by which the action was commenced was not in compliance with Sections 97 and 99 of the Sheriffs and Civil Processes Act still went on to hold that the appellant who had at the earliest time challenged same waived the non-compliance.

Particulars of Error
(a) In view of the processes before the lower Court and the holding of the learned trial Judge that the Writ of Summons dated 18/6/2008 by which the claimant/respondent commenced the action before the lower Court which commanded the defendant resident in Lagos out of the jurisdiction of the honourable Court to enter appearance within 8 days instead of 30 days and was not properly endorsed for service out of jurisdiction in violation of Sections 97 and 99 of the Sheriffs and Civil Processes Act, the lower Court ought to have come to the decision that the provision of Section 97 of the Sheriffs and Civil Processes Act is mandatory, the Writ of Summons is defective, incurably bad and strike out the case for lack of jurisdiction.
(b) The learned trial Judge by his holding as follows: ?The Writ of Summons (which admittedly violated Sections 97 and 99) of the Act was duly served on the original defendant? coupled with the Supreme Court decision in the case of OWNERS OF MV ?ARABELLA V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (NAIC) 2008 FWLR (PT. 443) 1208 on the issue of a properly endorsed Writ of Summons and the

provisions of Section 97 of the Sheriffs and Civil Processes Act relied upon by the appellant ought to have come to the decision that the Writ of Summons is incurably bad and the lower Court lacks jurisdiction to entertain the action.
(c) The learned trial Judge in view of the defendant having filed a conditional appearance and raised the non-compliance of the said Writ of Summons with Sections 97 and 99 of the Sheriffs and Civil Processes Act, the competency of the action and the jurisdiction of the lower Court to determine the matter in her defence to the action, it is the lower Court not the defendant/appellant, that has a duty to set down and determine the issue of jurisdiction before calling on the defendant to state her defence to the case.
(d) By the Supreme Court decision in the case of OWNERS OF MV ?ARABELLA V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (NAIC) supra a Writ of Summons for service out of jurisdiction not properly endorsed as required by Section 97 of the Sheriffs and Civil Processes Act is void and in law a nullity which cannot be waived. The Writ of Summons ought to be set aside and struck out for want of

jurisdiction.
(e) By the upholding of the contention of the defendant/appellant that the Writ of Summons for service out of jurisdiction is not properly endorsed is not in compliance with Section 97 of the Sheriffs and Civil Processes Act amongst others the proper decision of the lower Court is one that the said Writ of Summons is incurably bad and the lower Court lacks jurisdiction to entertain the matter.
(f) The provisions of Section 97 of the Sheriffs and Civil Processes Act is mandatory and fundamental, non-compliance as found by the lower Court goes to the jurisdiction of the lower Court to entertain the matter.
(g) Failure to endorse a Writ of Summons as required by Section 97 of the Sheriffs and Civil Processes Act deprives the lower Court of jurisdiction to adjudicate over the matter.(h) By the lower Court holding that the Writ of Summons is in violation of Section 97 of the Sheriffs and Civil Processes Act is a mandatory provision of the Act before it can assume jurisdiction over the matter it acted contrary to the clear provision of the law and decision of the Supreme Court in OWNERS OF MV ?ARABELLA V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (NAIC) ?

supra.

Ground Four
The learned trial Judge misdirected himself in Law after setting out the provisions of Sections 97 and 99 of the Sheriffs and Civil Processes Act and held as follows: ?there is no doubt that the Writ of Summons issued and served on the original defendant did not comply with either of these two provisions? proceeded on a wrong premise and still went on to hold that the defence which amongst others as agreed by the lower Court filed conditional appearance and in the defence raised the non-compliance of the Writ of Summons with these mandatory provisions and jurisdiction of the lower Court to entertain the matter had waived the non-compliance and assumed jurisdiction over the matter.

Particulars of Misdirection
(a) The lower Court in view of its holding ought to have come to the conclusion that the Writ of Summons complained of is defective and incurably bad and same ought to be set aside.
(b) The learned trial Judge in view of his holding ought to have come to the conclusion that Section 97 of the Sheriffs and Civil Processes Act is mandatory and

fundamental provision hence cannot be waived by the defendant/appellant.
(c) It is the learned trial Judge in view of the processes filed before him by the defence which amongst others challenged the lower Court jurisdiction to entertain the matter, that has a duty not the defendant/appellant to set down and determine the issue of jurisdiction before calling on the defendant to state her defence to the case.
(d) The decision of the learned trial Judge that the defence waived the issue of non-compliance of the Writ of Summons with the mandatory provisions of the Sheriffs and Civil Processes Act in view of his upholding of same is contrary to Law.

Ground Five
The learned trial Judge erred in Law when he held notwithstanding the processes before him and the case of ELABANJO & ANOR. V. DAWODU 2006 6-7 SC 24 cited and relied upon by the defendant/appellant that it was too late for the defence to raise and call upon the lower Court to determine the issue of the validity of the Writ of Summons and a challenge to the jurisdiction of the lower Court.

Particulars of Errors
?(a) There were arguments and submission before the

learned trial Judge by the defence relying on the case ELABANJO & ANOR. V. DAWODU 2006 6-7 SC 24 that issue or a challenge to the jurisdiction of the Court can be raised at any time in the proceedings even if same is not raised in the pleadings.
(b) It is the law that when the issue of jurisdiction which can be raised at any time in the proceedings even for the 1st time on appeal, is raised, it must first be determined by the Court, it was thus wrong as decided by the learned trial Judge in view of the processes before it upholding the view of the claimant/respondent that the defence is late and is stopped from raising the issue of non-compliance with Section 97 of the Sheriffs and Civil Processes Act and a challenge to the lower Court?s jurisdiction to determine the action.
(c) The defence objection having been premised on a defective Writ of Summons which robs the lower Court of jurisdiction it is a fundamental defect not an irregularity in the proceedings which can be waived by the defence.
?(d) The learned trial Judge decision that the defence had waived its right is wrong in view of its holding that the Writ of Summons is not

in compliance with the mandatory provisions of the Sheriffs and Civil Processes Act.
(e) The conclusion of the learned trial Judge that the defence did not act timeously is not supported by the processes before him which is unchallenged that the defence raised the issue of the defective Writ of Summons in its pleadings.

Ground Six
The learned trial Judge erred in law and on the evidence before him when he held that the claimant/respondent proved his claim and granted all the reliefs claimed in the 2nd Amended Statement of Claim dated 4/11/2014.

Particulars of Error
(a) It is the law in civil action as in the action before the lower Court that the burden of proof is on the party who will fail if no evidence is led on a balance of probability and it is only when it is discharged that burden of proof shifts to the other party.
(b) It is clear from the record that the defendant/respondent has no counter-Claim before the lower Court.
(c) The claimant/respondent pleadings on which his case was fought before the lower Court is the 2nd Amended Statement of Claim dated 4/11/2014 which in law dates back to the time the

original action was instituted.
(d) It is also an elementary principle of law that for a party to succeed the evidence led must be in support of his pleading any evidence led contrary or at variance with the pleadings goes to no issue.
(e) It is clear from the record that the claimant/respondent opened and closed his case on 8/7/2013 and the statement on oath which was adopted as his evidence in chief is the statement on oath dated 22/5/2009 wherein the claimant/respondent claimed the sum of N2,154,952 as special damages contrary to his pleadings.
(f) The learned trial Judge judgment granting all the claimant/respondent claim in line with the claims endorsed on the 2nd Amended Statement of claim dated 4/11/2014 is therefore wrong in law.

Ground Seven
The learned trial Judge erred in law when he awarded the claimant/respondent the sum of N1,094,952.00 as special damages.

Particulars of Error
(a) The evidence led by the claimant/respondent of the sum of N2,154,952 as special damages is contrary to the pleadings.
?(b) The claimant/respondent from the evidence led failed to prove that he is entitled to the sum

of N1,094,952.00 as special damages.
(c) The lower Court decision is contrary to the laid down principles of law on this point.

Ground Eight
The learned trial Judge erred in law and denied the defendant/respondent’s right of fair hearing when he failed to consider the issue of competency of the action as to the issue of the proper legal representatives of the original defendant not before the Court.

Particulars of Error
(a) The learned trial Judge failed to consider all the issue placed before him by the defendant/respondent.
(b) The lower Court by this denied the defendant the right of fair hearing as enshrined in the Constitution Federal Republic of Nigeria 1999 as amended.

Further grounds will be filed and leave to argue them sought when the record of appeal is received.

I have set out the grounds of appeal with prolix particulars because the appellant seem also to have argued the appeal on the particulars.

Issues for Determination
Appellant by his appellants brief raised (4) issues for determination being:
1. Whether it is an error of law as done by the trial Court when it failed to consider

the appellant?s contention and submission on the issue of the proper representatives of the deceased not before the Court and this amount to a denial of the constitutional rights of fair hearing as enshrined in the Constitution Federal Republic of 1999 as amended. (Ground 8).
2. Whether the learned trial Judge having held that the Writ of Summons served on the original defendant is not in compliance with Section 97 of the Sheriff and Civil Processes Act, CAP S6 LFN 2004 and the circumstances of this case was right to agree with the respondent that the appellant waived her right and estopped from raising the issue and proceed to judgment in favour of the respondent. (Grounds 1, 3, 4).
3. Whether the learned trial judge was right in view of the issue in this case by refusing to abide by the principle of stare decisis to follow the Supreme Court decision in the case of Owners of MV ?Arabella? vs. NAIC (2008) All FWLR (pt. 443) 1208 or 2008 4-5 SC (pt. II) 189, brought to his attention. (Ground 2).
4. Whether the lower Court was not in error in view of the pleadings and evidence led before it by the respondent when he held

that the respondent is entitled to judgment on his 2nd amended statement of claim particularly the claim as to special damages against the appellant. (Ground 6 & 7).

The respondent by his own brief filed four (4) Issues viz:
(1) Whether the trial Judge rightly held the appellant did not challenge the proprietary of her substitution as a proper party before the trial Court.
(2) Whether the trial Judge was right in holding that the appellant waived her right and estopped from complaining about non-compliance of this suit with Sections 97 and 99 of the Sheriff & Civil Process Act having filed a defence and participated fully in the proceedings on the merits without raising any objection throughout the proceedings.
(3) Whether the trial Judge was right in holding that the decision in THE OWNERS OF MV ARABELLA V. NAIC cannot benefit the appellant in this suit.
(4) Whether the trial Judge was right in holding that the claimant has proved special damages claimed against the appellant in accordance with the standard required by law.

?As I consider all the issues raised by parties, I am of the view that issue Number 2

in both the appellant?s and respondent?s briefs are ? and issue Number 4 of both briefs are exhaustive of the matters arising in this appeal and would be considered as such:
Issue Two
Whether the trial Judge was right in holding that the appellant waived her right and estopped from complaining about non-compliance of this suit with Sections 97 and 99 of the Sheriff & Civil Process Act having filed a defence and participated fully in the proceedings on the merits without raising any objection throughout the proceedings.

This issue is of the same import as issue number two of the respondents brief and would be considered together here. A good starting base would be to consider the case law as it was since the decision in the case of Skenconsult v. Ukey (1981) 1 SC 1 in respect of Section 99 of the Sheriff and Civil process Act and how case law on the subject developed and digressed over time and applying the current position to the facts of this case.
Earlier, in the case of Skenconsult (Nig) Ltd & Anor v. Godwin Sekondy Ukey (supra) the Supreme Court had held that where a Writ of Summons originates in one state

for service in another. It is mandatory that a period of at least 30 days between date of services and date stated for entry of appearance in Court and that failure to comply with the Provisions of Section 99 of the Sheriffs and Civil Process Act means that there has been no service. In Skenconsult, the Supreme Court further held that such defects were fundamental affecting competence and jurisdiction and were not mere irregularities and that mere acquiescence by the parties cannot give the Court jurisdiction.
In Ezomo v. Oyakhire (1985) 2 SC 260 the period of time between date of service of the Writ of Summons issued out of Bendel State for service for on the defendant in Anambra State and the return date stated on the Writ was less than the mandatory thirty days required by Section 99. On appeal before the Supreme Court against the plaintiff, the contention was the non-compliance with Section 99 in the service of the Writ . The Court held that as the defendant did not take Preliminary Objection to the service of the objectionable Writ but proceeded to file pleadings and to full trial of the case on the merit, he (the defendant) must be deemed to

waive his right under Section 99 of the Act. It must be noted as the Court also did, that in the Skenconsult case, the defendant raised a Preliminary Objection but took further step in the matter.
In Adegoke Motors v. Adesanya (1988) 2 NWLR 108, the Court of Appeal observed that there was a conflict between the case of Skenconsult and Ezomo?s case but preferred to follow the latter case of Ezomo implying that there is need for an application or Preliminary Objection on the point or issues of issuance or service of the Writ before any further steps are taken in the proceedings. In Adegoke Motors, the Writ of Summons issued in Lagos but served in Oyo State was not endorsed that it was for service outside the jurisdiction of Lagos State as required by Section 97 of the Act. The defendant entered appearance but took no further steps and the case being under the summary judgment procedure judgment was entered against him. On appeal to the Court of Appeal following the conflict between the case of Skenconsult and Ezomo preferred to follow Ezomo?s case and held that failure of the appellant to take step to set aside the Writ and the fact that the

case proceeded to finality constituted a waiver of any irregularity.
The problem of divergence of authority continued in the Supreme Court when in Nwabueze v. Okoye (1988) 3 NSCC 25, the Apex Court held that service of a Writ of Summons on a defendant without the requisite endorsement required by Section 97 was invalid and of no effect and such default was not a mere irregularity but a fundamental defect that goes to competence and jurisdiction. The principle thus established was followed in Yusuf v. Cooperative bank (1994) 9 SCNJ 67 at 99 and NEPA v. Onah (1997) 1 SCNJ 220 that non-compliance with Section 97 and 99 of the Act in the manner shown above invalidated the Writ and its service making both null and void.
However, the Supreme Court in Odu?a Investment Co. Ltd. v. Talabi (1997) 7 SCNJ 600 a full Court of the Supreme Court in relation to non-compliance with Section 97 and 99 of the Act held that non-compliance renderded the Writ voidance and that a defendant affected is entitled to ex debito justiciae to have same set aside provided he has not taken fresh steps in the matter which amounted to waiver. This was followed by Uchendu v. Ogboni

(1999) 4 SCNJ 64 at 83-84, where inspite of the defect pursuant to Sections 97 and 99 of the Act, the defendant submitted to jurisdiction, up to judgment. It was held that having so submitted, he (defendant) could not be heard to complain objection to non-compliance must be taken before trial. This is the prevailing situation of present time.
In relation to Section 97 of the Act, the trial Judge in the case under appeal made an extensive review and analysis of the trend and following the prevailing regime held that the defendant being away at the fact that the Writ of Summons served on him was in default of Sections 97 and 99 of the Sheriffs and Civil Process Act elected to proceed with the case and even after substitution by his personal representative she filed due processes of statement of defence and called evidence in the case which ended against the defendant/appellant before, in after thought appellant now thought of raising the invalidity of the Writ and its service. The trial Court was right in holding that it was too late in the day to do so and she was bound by the result of her own election. This issue fails and is resolved against the appellant.

Issue number four is common to appellant and respondent. It is:

Issue Four
Whether the trial Judge was right in holding that the claimant has proved special damages claimed against the appellant in accordance with the standard required by law.

The learned trial Judge considered the merits of the claim from two perspectives as the facts present. Firstly, the Court considered the effect of Exhibit 5 described as Deed of Assignment made between the plaintiff/respondent and the predecessor of the appellant which is undated and unregistered as I found upon my examination of Exhibit 5.

Believing though erroneously that Exhibit 5 is a Deed of Assignment which must be by seal and duly registered under the Ogun State Lands Instrument Registration Law, the learned trial Judge. In analyzing the evidence and submission of counsel, the Court rationalized as follows in due research and industry, I must concede to the trial Judge. He wrote thus:
With due respect to the defendant?s counsel, his submissions did not take cognizance of the legal effect of the defendant?s covenants and warranty of title as contained in the

Deed of Assignment, Exhibit 5. I have read over and over and over again, the address of the defendant?s counsel. Nowhere did he make reference to the vendor?s covenants and the express and implied warranty of title which is at the heart of this claim. In the Law of Conveyancing, the operative words of a deed are the words that actually convey the property from the vendor to the purchaser. The most important part of the operative words the phrase, ?As Beneficial Owner?. Where these words are inserted in a conveyance, there is an implied covenant as to title by the vendor. The implied warranty as to title is not satisfied merely by a vendor (the defendant herein), showing vacant parcel of land and putting the purchaser (the claimant) into possession. In Exhibit 5 the defendant conveyed the land in dispute to the claimant as beneficial owner. In the case of Lasisi Lasupo Alli v. Chief J.O. Ikusebiala (1985) 5 SC 93, the Supreme Court, per Karibi-Whyte JSC, explained that phrase in the following words:
?The expression ?beneficial owner? and “seized in fee simple? are conveyancing terms of important legal

significance. See Section 100 Conveyancing and Property Law of Oyo State. Parker v. Judkin (1931) All ER. Rep. 222,227 Smart v. Coker (1962) 2 All NLR 186. Where a person is described as ?beneficial owner?, it means such owner enjoys completely or all the rights and privileges legally possible for an owner to have in respect of such land. Similarly, an owner ?in fee simple? means that such person has the largest estate possible in respect of the land thus where a person is described in his personal capacity in a conveyance, it means invariably he was capable of conveying the estate he claims to have.?
See also the case of J.O.O. Imana v. Madam Jarin Robinson (1979) 3-4 SC.
?In 1881 by the Conveyancing Act, 1881 (see: Section 7 thereof, later replaced with amendments by S. 76 of the Law of Property Act, 1925), it became unnecessary to give express covenants for title, since they were implied, if the conditions therein stipulated were satisfied. (See: The Law of Real Property by Megarry and Wade, 4th Edition pages 602-3). One of these implied covenants is that a vendor in fee simple has title to the land he conveys and if

that title is defective the purchaser is entitled to have the conveyance set aside. In the case of want of title it was held, as far back as 1815, in Edwazde v. M?Leav (1815) G. Coop 308 at 312 (a case which really dealt more with fraud than with breach of covenant for title) that the purchaser need not wait until eviction, but he may at once, claim to have the conveyance set aside? Per Aniagolu, JSC.
The full ramifications of the implied warrantly of title are as follows:
That the purchaser shall have quiet enjoyment of the property.
Freedom from encumbrances; that the purchaser shall enjoy the land free from any encumbrances other than those subject to which the conveyance is expressly made.
Further assurance: the vendor will execute such further assurances and do all such things as are necessary to cure any defect in the conveyance. The above covenants and warranties have been statutorily codified in Section 100 (1) (a) and Second Schedule Part 1, of Property and Conveyancing Law Cap 100, 1978. Let me say that this law was not included in the 2006 Laws of Ogun State but it has not been repealed and is still applicable in

Ogun State. Therefore the covenants in clauses (a), (b) and (e) of the vendors covenants in exhibit 5 are implied by statute even if they were not expressly included Exhibit 5.

The issue snag however is whether Exhibit 5 received in evidence unilaterally is an instrument within the meaning of Section 2 of the Land Instruments Registration Law of Ogun State which defines Instrument as:
?A document affecting land in the state whereby one party (hereinafter called the grantor) confers limits, changes or extinguishes in favour of another party (hereinafter called the grantee) any right or little to or interest in land in the state and in churches————?
By Section 16 of the Law it is provided that no registrable instrument shall be pleaded or given in evidence unless registered.
There are ancient authorities illustrating this: ?
1. MUONWEOKWU V. EGBIMOLE (1959) III ENLR 53.
2. FOLASHADE V. DUROSHOLA (1961) ALL NLR 87
3. TEWOGBADE V. OBADINA (1994) 4 SCNJ 161
4. AKINTOLA V. SOLANO (1986) 1 NSCC 504
5. OKOYE V. DUMEZ NIG. LTD & ANOR. (1985) 2 NSCC 78.

Besides being undated, there is

nothing on seal neither was it shown that the content of the Governor to the assignment was sought and obtained. See Oredola Okeya Trading Co. Ltd. v. Att.Gen Kwara State. Exhibit 5 was not pleaded as a memorandum as to make it evidence of an equitable grant. But notwithstanding the apparent failure of Exhibit 5 in these considerations, there is still unchallenged oral evidence of payment of money pursuant to an agreement for sale of two plots of land the subject of this dispute. There is evidence that there was total failure of consideration in the sense that the consideration given by the vendor appellant failed when the Government of Ogun State took over the land appellant sold to the respondent demolishing respondent?s structures thereon.
The legal position is that a party who has paid money to another person for a consideration that has totally failed under a contract is entitled to claim the money back from the other.G.N. Nwolisah (trading under the name and style of G.B. Vitalis Co. Nig) v. Paschal Nwabufor (trading under the name and style of Paskodi Maritime Agencies) (2011) 6-7 SC (pt. 11) 138.
?It is in the light of the above

that justification can be found for the judgment of the trial Court which is right in its conclusion. I therefore resolve issue number 4 against the appellant.

The other issues relating to the substitution of the current appellant is of no moment as she is the personal representative of the deceased appellant as she stepped into that role as the cause of action survives death of her deceased husband.

In the final analysis, all the issues raised by appellant have failed and the appeal is in consequence dismissed.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my learned brother NONYEREM OKORONKWO, JCA just delivered.

My Lord has adequately dealt with the main issues in this appeal and I agree entirely with the reasons given as well as the conclusion that this appeal lacks merit.

The appeal is also dismissed by me.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft the lead Judgment of my learned brother, Nonyerem Okoronkwo JCA, just delivered.

?I agree entirely with the reasoning and conclusion which I adopt as mine. All the issues canvassed by

the Appellant have failed. The appeal lacks merit and should be dismissed. I too will dismiss the appeal as I do not have anything more to add. The appeal is dismissed.

Appearances:

L.B. ShopeyinFor Appellant(s)

Joseph OputeFor Respondent(s)

Appearances

L.B. ShopeyinFor Appellant

AND

Joseph OputeFor Respondent