NAVY CAPTAIN M.D. YAKUSAK v. XELA NIGERIA LIMITED & ORS
(2019)LCN/12754(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of February, 2019
CA/A/239/2007
RATIO
JURISDICTION: WHERE A SERVICE IS FILED OUT OF JURISDICTION
“It is correct that the Supreme Court has in the Nwabueze & Anor v. Obi-Okoye (1988) 4 NWLR (pt. 91) 664 and Owners of THE M.V. ARABELLA v. NAIC (supra) and other cases have restated that leave to issue and serve a writ of summons for service out of jurisdiction must be first obtained before such writ is issued and served out of jurisdiction and that failure to do so vitiates the competence of the writ of summons and renders it void.” PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
NAVY CAPTAIN M.D. YAKUSAK – Appellant(s)
AND
1. XELA NIGERIA LIMITED
2. SENATOR ALEX KADIRI
3. HERITAGE BANK PLC – Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment):
This appeal No. CA/A/239/2007 was commenced on 12-12-2006 when the appellant herein filed a notice of appeal against the ruling of the High Court of the Federal Capital Territory delivered on 28-11-2006 in suit No. FCT/HC/CV/495/05 by S.D. Bage J. The notice of appeal contains two grounds of appeal with leave of this Court it was amended. The amended notice of appeal deemed properly filed on 26-5-2015 contains seven grounds of appeal.
All parties herein filed their respective briefs as follows- amended appellant’s brief, 1st and 2nd respondent’s brief, 3rd respondent’s brief and 1st and 2nd respondents’ reply to the 3rd respondent’s brief.
The amended appellant’s brief raised the following issues for determination-
1. Whether having regard to the entire circumstances of this case, the trial Court was not wrong in holding that the originating processes in the case were served on the Appellant and thus failed to accord the Appellant a fair hearing. (Grounds 1 and 4)
2. Whether having regard to the averments and reliefs sought in the 1st and 2nd Respondents’ Pleadings, the learned trial judge was right when he gave judgment in default in accordance with Order 25 Rule 6 and Order 35 Rule 8 of the Rules of Court. (Ground 2)
3. Whether having regard to the facts of this case, the trial Court was right in relying on the witness statement on oath which was not adopted by any witness to enter judgment in favour of the 1st and 2nd Respondent against the Appellant and 3rd Respondent. (Ground 3)
4. Whether counter-affidavit was required by law in the suit so as to warrant the acceptance by the trial judge of the depositions in the 1st and 2nd Respondents? witness statement on oath on ground that the Appellant filed no counter-affidavit to contradict the said deposition. (Ground 6)
5. Whether in view of Sections 98 and 99 of the Sheriff and Civil Process Act Cap 189 Vol. 6 LFN 1990 the Writ of Summons in this case was competently issued and served to enable the trial Courts adjudicate on the suit and enter judgment therein in favour of the 1st and 2nd Respondents. (Ground 5)
6. Whether the absence of leave to issue and serve the Writ of summons in this case before the said Writ was issued on 10th May, 2005 concurrently for service within and outside jurisdiction rendered the Writ so issued null and void and thereby rendered the suit incompetent and robs the trial Court of jurisdiction. (Ground 7)
The 1st and 2nd respondent’s brief adopted the above issues raised for determination in the appellant’s brief.
The 3rd respondent’s brief raised one issue for determination as follows- ‘Whether having regard to the obvious procedural and statutory defects in the proceeding before the trial Court, the judgment delivered on 18th May, 2005 in Suit No. FCT/HC/CV/495/05 ought not to be set aside for want of jurisdiction. (Grounds 1, 2, 3, 4, 5 and 6 of the Notice of Appeal.’
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.
Let me start with issue No. 1 which asks- “Whether having regard to the entire circumstances of this case, the trial Court was not wrong in holding that the originating processes in the case were served on the Appellant and thus failed to accord the Appellant a fair hearing.”
The part of the ruling of the trial Court complained against under this issue reads thusly- ‘The Court perused through all the processes filed and has carefully examined the submission of learned Counsel from both sides, the record of the Court shows that the judgment creditors/respondents filed a motion exparte dated the 7th June, 2005 and obtained an order of Court to serve the applicant by substituted means. The affidavit of service sworn to by the bailiff proves same that the 29th of June, 2005, the processes were pasted on the wall of the applicant’s house. See Exhibit C and the affidavit of the 2nd plaintiff.
Subsequently the applicant was served with hearing notices. See Exhibits D1, D2, D3 and D4 respectively. In this suit I reiterated that the defendants has no locus to bring this application. The defendants were duly served all the originating processes in this suit by substituted means especially the 1st defendant. Subsequently several hearing notices were issued for the defendants to attend Court.
In this suit, after the processes were served, the case was slated for hearing. The judgment debtor/applicant did not enter appearance. The Counsel to the judgment creditors/Respondents then asked the Court to enter judgment on the 22nd September, 2005 in default of pleadings. See Order 25 Rule 6 & Order 35 Rule 8 of the FCT High Court Civil Procedure Rules 2004. Judgment was delivered in accordance with the writ of summons and the statement of claim of the plaintiffs.
The cardinal principle of law Audi Alteram partem is that all parties to an action must be heard and this can be achieved by processes personally. Where personal service is not possible, the law allows a litigant/party to be served by substituted service obtaining leave of Court. The defendants were served by substituted means all the originating processes, that is all the Court owes the defendants. The Court went out of its way to serve several hearing notices on the defendants/applicants to ensure their attendant in Court by yet the defendants/applicants failed to or neglected to attend Court to defend the suit against them until the Court adjourned for judgment. The defendant were given ample opportunity to defend themselves. They cannot complain that they were not given fair hearing. The Court elicited from the attitude of the defendants that they are not desirous of attending Court. The Court cannot force an unwilling defendant to come to Court and enter a defence.
Learned Counsel for the appellant argued that the appellant was not served with the originating processes, the order of substituted services and the hearing notices, that there is no proof of such service, that the certificate of service of the originating processes on the appellant signed by the bailiff on 29-6-2005 is not sworn on oath and therefore does not qualify as proof of such service, that the contents of the said certificate of service contradict on whether the appellant was served personally or by substituted means, that equally all the certificates of service of the respective hearing notices not being sworn as affidavits do not qualify as proofs of service of such processes and that the trial Court was wrong to have relied on these certificates of service to hold that the originating processes and notices of hearing were served on the appellant.
Learned Counsel for the 1st and 2nd respondents argued that the bailiff?s affidavit of service is not the only way to prove service of Court process, that the bailiff?s certificate of service used in the instant case is another method prescribed by Order 11 Rule 31 of the High Court of Federal Capital Territory (Civil Procedure) Rules 2004, that the contents of the affidavits of service are not contradictory, that the bailiff filled paragraph 1 of the certificates of service wrongly, but correctly filled paragraph 2 therein which show that the originating processes and notices of hearing were served on the appellant by pasting same on the wall of the 2nd defendant’s residence that the wrong filling of paragraph 1 therein is a mere irregularity that should not vitiate the certificate of service, that the trial Court also relied on the deposition in an affidavit of the 2nd plaintiff dated 5-1-2006 that he saw the processes pasted on the appellant?s house, that the appellant who compiled the record of this appeal did not include that affidavit therein, that the appellant was served the originating processes and hearing notices as the certificates of service show but he chose not to appear or file any defence.
Let me now consider the merits of the above arguments of both sides.
It is not in dispute that up till the delivery of the judgment in Suit No FCT/HC/CV/495/05, the defendants did not file any memorandum of appearance, did not attend the trial proceedings in person or by a legal practitioner and did not file any statement of defence in response to the statement of claim and did not file any other process. In the absence of the defendants the trial Court on 18-11-2005 rendered judgment in favour of the plaintiffs in the following terms- ‘In totality of the above, this Court hereby enters judgment in favour of the Plaintiff against the defendant jointly and severally and also makes the following orders;
That the Sale of Wing 8A of Duplex at Plot 261 Maitama Abuja by the 1st defendant to the 2nd defendant is hereby rescinded because of fraud, lack of consent to alienate, misrepresentation, and breach of agreement to sell.
The plaintiffs are to take immediate possession of the Wing 8A plot 2617 Maitama Abuja. As regards the issue of N15 million per annum as rent from 16th November 1998 to date, the Plaintiffs did not plead this fact in their statement of claim neither did they depose to it in their sworn evidence on oath. It is trite that whatsoever is not pleaded goes to no issue. This leg of claim therefore fails.
By an application filed on 7-12-2005, the defendants prayed for-
1. An order extending time within which to apply to set aside the judgment of this Court delivered on the 18th November, 2005 in this suit.
2. An order setting aside the said default judgment of Court in the suit.
3. And for such further orders as the Court may deem fit to make in this circumstances.
On 12-12-2006, the trial Court after considering the affidavits of both sides and their arguments, rendered its ruling refusing the above application.
The central issue thrown up by the arguments of both sides is whether the trial Court was right in relying on the bailiff’s certificates of service of the originating processes, orders and hearing notices and the deposition in the 2nd plaintiffs affidavit’s affidavit that he saw the processes pasted on the gate of the appellant’s residence to refuse the application to set aside the 18-11-2005 judgment. In other words, is the bailiff’s certificate of service the proper or appropriate proof of the service of a process of the trial Court? Learned Counsel for the appellant has argued that it is not and that the proper proof is a bailiff’s affidavit of service. Learned Counsel for the 1st and 2nd respondents argued that it is a proper means of proof, just as the bailiff’s affidavit and an affidavit of any of the parties to the suit.
Order 11 Rules 28 and 31 of the High Court of Federal Capital Territory (Civil Procedure) Rules 2004 (The then extant Rules) provide that-
28. Where the service of a document has been effected by a bailiff or other officer of Court, an affidavit of service sworn to, by that bailiff or other officer shall on production, without proof of signature, be prima facie evidence of service.
31. Every Court shall keep a book for recording service or process, in such form as the Chief Judge may direct, in which shall be entered by the officer serving the process, or by the registrar, the names of the plaintiff or complainant and the defendant, the names of the plaintiff or complainant and the defendant, the particular Court issuing the process, the method, whether personal or otherwise, of the service, and the manner in which the right person, and where any process has not been dully served, then the cause of failure shall be stated, and every entry in the book or an office copy of any entry shall be prima facie evidence of the several matters stated in it.?
It is noteworthy that these two Rules are in Part C of the said Order 11. The 2004 Rules is now amended by the 2018 Rules which commenced on 15-2-2018. Order 7 Rules 13 and 18 therein provide that-
13. (1) The process server shall after serving any process promptly depose to an file an affidavit setting out the fact, date, time, place and mode of service, describing the process served and shall exhibit the acknowledgment of service.
(2) Proof of service by email shall be evidenced by an affidavit with a printout of an email notifier attached thereto
(3) The affidavit shall be prima facie proof of service.
It is also noteworthy that the 2018 Rules did not repeal the 2004 Rules. It states in paragraph 5 of the preamble thusly- “The High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules 2004 are amended.”
Be that as it is, whether repealed or amended, at all times material to the ruling leading to this appeal, Order 11 Rules 28 and 31 of the 2004 Rules were the existing and applicable Rules. So this appeal would be determined on the basis of Order 11 Rules 28 and 31 of the 2004 Rules.
The bailiff’s certificate of service is not provided for in both the 2004 Rules and the 2018 Rules amending it. There is nothing in the 2004 Rules or even the 2018 Rules recognising it as a means of proof service of Court processes. It is clear from the provisions of Rules 28 and 31 reproduced above that the recognised means of proof of service under the Rules is the bailiff?s affidavit of such service and not an entry in the book kept for recording service of process or an office copy of any such entry. I do not agree with the argument of Learned Counsel for the 1st and 2nd respondents that the certificate of service qualifies as an entry in a book kept for recording service of process or an office copy of such entry. There is no indication on its face that it is an entry in a book kept for recording service or an office copy of such entry. The said certificate of service is not among the list of forms prescribed in the Appendix to the 2004 Rules. The affidavit of service forms are prescribed therein as forms 16, 17, 18, 19, 20, 21 and 22.
Rule 28 describes the bailiff’s affidavit of service as ‘prima facie evidence of service’. Rule 31 describes the entry in a book kept for recording service of process or an office copy of such entry as ‘prima facie evidence of the several maters stated in it.’ So, it is clear that the Rules intended that the bailiff’s affidavit shall be primarily the means of proof of service of processes and that the Court’s book kept for recording such service shall be primarily the evidence of the Court’s record of such service.
Once a party to an action denies being served a process, the bailiff?s entry in the book kept for recording service of process, that he served the process becomes challenged and disputed, thereby requiring proof that the service of the process was actually done. It is the bailiff?s affidavit which contains his statement on oath that he served the process and describing how he carried out the service that is the basic means of that proof. The entry in the book kept for recording of service is not made under oath. The Supreme Court held in Ndayako v. Dantoro (2004) 13 NWLR (Pt 889) 187 @ 220 that ‘under normal circumstances the best evidence of proof of service of process is by affidavit of service.’ The apex Court held in Mark v Eke (2004) 5 NWLR (Pt 865) 54 @ 79 (SC) ?that the affidavit of service must be a proper affidavit of service proving due service of the writ.
Let me now deal with the issue of the alleged inconsistencies in the content of the certificates of service and the effect of such inconsistencies, if any, on the said certificates as a proof of service of the originating processes and the hearing notices.
Both sides agree that all the certificates of service are inconsistent in their entries. In the first part each states that the process served therein was served on the person of the appellant in the second part, each states that it is served on him by pasting on the gate of his residence at No. 8A Alex Kadiri Close, Maitama, Abuja. In the Certificate of service dated 25-5-2005 at page 79 of the record of appeal, the bailiff, Mohammed Sabo stated thusly-
(1) That on the 24th to 25th day of May 2005 at 2:30pm & 8:40am o’clock I served upon Navy Capt. M.D. Yakusak A Writ of Summons and Statement of Claims and 2nd Plaintiff’s sworn evidence a true copy of which is hereunto annexed, by delivering the same person (sic) Navy Captain M. D. Yakusak. (2nd Defendants (sic)
(2) That I was unable to serve Navy Captain M.D. Yakusak Writ of Summons, Statement of Claims, 2nd Plaintiffs (sic) Evidence a true copy of which is hereunto annexed because I was told by his security man that he has travel (sic) outside the jurisdiction.”
In the certificate of service dated 29-06-2005, the same bailiff stated, concerning the service of the originating processes on the appellant, thusly-
(1) That on the 29th day of June 2005 at 10:35am o?clock I served upon Societe Generale Bank Ltd & 1 Or A Writ of Summon (sic), copy of which is hereunto annexed, by delivering the same person Societe Generale Bank Ltd & Navy Capt. M.D. Yakusak
(2) a true copy of which is hereunto annexed by pasting on the second defendant Address at No. 8A Alex Kadiri Close, Maitama, Abuja, and, with all Court process, in same address.?
The certificates of service of the hearing notices reproduced at pages 82 and 87 of the record of this appeal contain the same entry of personal service and substituted service of the hearing notice on the appellant.
Where, as in this case, a bailiff states that a particular process was served by him on the person of the party to be served, and also states that the same process was served on that same party by substituted means, to wit, by pasting it on the gate of his residence, the question of why he served the same process twice on the same party by two different methods of service arises. Against the back ground that, at the instance of the plaintiffs, the trial Court had ordered substituted means, by pasting same on the gate of the appellant’s residence, another question that arises is, if the Court had ordered that the processes be served on the appellant by substituted means why did the bailiff serve him the processes personally.
Learned Counsel for the 1st and 2nd respondents argued thusly- ‘The appellant went on to harp again and again on what he terms contradictions in the certificates dated 25/5/0, 29/6/05, 19/9/05 and 11/10/05. The bailiff filled paragraph 1 of the certificate wrongly but filled paragraph 2 which is the relevant paragraph correctly. Is the failure of the semi-literate bailiff to fill paragraph 1 correctly evidence that there was no service of the processes’ Certainly not. The fact that he filled paragraph one wrongly again and again shows but his ignorance and nothing more. We urge the Court to treat it as a mere irregularity, which does not vitiate the service of the documents pursuant to Order 2 Rule 1 of the FCT Civil Procedure Rules.’
This argument is not valid. There is no evidence in the record of this appeal that the bailiff made the entries wrongly or that the bailiff is semi-literate. Arguments in an appeal must be based on the contents of the record of appeal. Allegations of events or facts not contained in the record of appeal are not valid for consideration. The evidence of why the bailiff made those entries can only come from the bailiff who made them. Learned Counsel cannot in his argument introduce facts not established by any evidence in the record of the proceedings of the trial Court. Such argument is incompetent and baseless.
The bailiff stated clearly in those affidavits how he served the processes mentioned in each of them. The inference drawable from the certificates of service at pages 80, 82 and 87 of the record of this appeal is that the bailiff said he served the processes mentioned therein both personally and by substituted means. It is only the entries in the certificate dated 25-5-2005 at page 79 of the record of this appeal that are inconsistent because in the first part he said he served the originating processes on the appellant personally, while in the second part therein he said he was unable to serve the appellant the said processes and that he was told by the appellant?s security man that appellant has travelled outside jurisdiction. In the light of the foregoing, I hold that the entries in the certificates of service are of doubtful veracity or credibility. It would be unsafe to rely on them as proof that the appellant was served the originating processes and the hearing notices in the suit.
In the light of the foregoing, I hold that the trial Court was wrong to have relied on the certificates of service to hold that the appellant was served the originating process and hearing notices in the suit by pasting them on the wall of his house. There was no valid proof of service of the said processes on the appellant.
Considering that the defendants did not file a memorandum of appearance, did not physically appear in Court and did not file a statement of defence to the suit, the trial Court should not have entered judgment granting the claim of the plaintiffs against the defendant on the basis of the writ of summons, statement of claim and witness depositions and accompanying documents in the absent of the defendants and their defence, without the bailiff’s affidavit of service of the originating processes and the respective notices of hearing on the defendants as prescribed in Order 11 Rule 28 of the 2004 Rules.
The trial Court should not have refused the application to set aside the said judgment in the face of the appellant’s affidavit evidence that he was not served the said processes without a bailiff’s affidavit of such service contradicting it. As I had held herein, the entries in the Certificate of Service are not on oath. Not being statements on oath, the certificates of service have lesser evidential weight than the appellant’s affidavit evidence. The 2nd plaintiff’s affidavit that he saw the processes pasted on the gate of the appellant’s residence cannot be relied on in law as a proof that the originating process and hearing notices were served on the appellant. It is obvious that the 2nd plaintiff was not the person that served the processes on the appellant by pasting them on his gate. All the certificates of service state that Mohammed Sabo, Senior bailiff of the trial Court carried out the said service of the processes. It is only the person who carried out the service of a process that can depose to an affidavit of that service.
The statement on oath of the 2nd plaintiff that he saw the processes pasted on the gate of the appellant cannot be relied on as proof that a particular process was served on the appellant. The trial Court was wrong to have relied on it as proof of service of the said processes on the appellant. Without a valid proof of service of the originating processes and the hearing notices on the appellant, the finding of the trial Court that the appellant was served with those processes is wrong. The reasonable and correct inference to be drawn from the lack of a valid proof of service of those documents is that the originating process and hearing notices were not served on the appellant. Without such service, the Court would lack the jurisdiction to proceed in the case and if it exercises its jurisdiction to conduct the proceedings as in this case, the exercise of jurisdiction and the proceedings including the judgment it renders is a nullity and must be set aside. As the Supreme Court held in Mark v Eke (supra) – ‘Now, where a process has been served, it is necessary for the Court to have before it evidence of that fact. Service of the process especially the originating process is an essential condition for the Court to have the competence or the jurisdiction to entertain the matter. Further failure to comply with this condition would render the whole proceeding, including the judgment entered, and all subsequent proceeding based therein, wholly irregular, null and void. That is why the proof of the service of the process on a defendant is very fundamental to the issue of the jurisdiction and competence of the Court to adjudicateThe affidavit of service must be a proper affidavit of service proving due service of the Writ.’ (Underlining supplied for emphasis).
In the light of the foregoing, issue No. 1 is resolved in favour of the appellant.
I will now determine issues Nos. 5 and 6 together.
Issue No. 5 asks- ?Whether in view of Sections 98 and 99 of the Sheriff and Civil Process Act Cap 189 Vol. 6 LFN 1990 the Writ of Summons in this case was competently issued and served to enable the trial Court adjudicate on the suit and enter judgment therein in favour of the 1st and 2nd Respondents.”
Issue No. 6 asks- ?Whether the absence of leave to issue and serve the Writ of summons in this case before the said Writ was issued on 10th May, 2005 concurrently for service within and outside jurisdiction rendered the Writ so issued null and void and thereby rendered the suit incompetent and robs the trial Court of jurisdiction.”
Learned SAN for the appellants argued that the Writ of Summons that commenced the suit indicate the address for service on the 1st defendant as 13 Martins Street, Lagos, out of jurisdiction and an address for service on the 2nd defendant as 8A Alex Kadiri Close, Maitama, Abuja, within jurisdiction, that by virtue of Order 4 Rule 13(2) of the 2004 Rules, it is a concurrent writ and by virtue of S.98 of Part VII of the Sheriffs and Civil Process Act, it ought to be marked ?concurrent?, that it is not so marked, that by virtue of S.99 of the Sheriff and Civil Process Act, the writ should have specified 30 days and not 8 days for the defendant?s response thereto, that none compliance with Ss.98 and 99 of the said Act renders the writ of Summons null and void. For these submissions he relied on the judicial decisions of Owners of THE M.V. ARABELLA v. NAIC (2008) 11 NWLR (Pt. 1097) 182 at 207 and 208, SKEN CONSULT NIG LTD v. UKEY (1981) 12 NSC 1 @10, PORBENI v. P.I. INVESTMENT CO. LTD (2002) 3 NWLR (Pt 754) 452 at 469 ? 470, NEPA v. ONAH (1997) 1 NWLR (Pt. 484) 680 @ 689 ? 690, ODUA INVESTMENT v. TALABI (1997) 10 NWLR (Pt. 523) 1 @ 52.
Learned Counsel for the 1st and 2nd respondents argued replicando that in practice, a Writ had to be first filed before an application for leave to issue a concurrent writ for service out of jurisdiction can be made, that after filing the original writ on the 10th day of May 2005, they again applied for it to be issued a second time for service outside the jurisdiction of the FCT High Court in Lagos, that the writ was then taken to the High Court of Lagos State where it was sealed and served on the 3rd Respondent herein, that there is no non-compliance with S.98 and 99 of the Sheriff and Civil Process Act which also do not contain provisions on how to issue and serve concurrent writs, that before the writ was issued, the second time for service outside jurisdiction, the Plaintiffs obtained leave on 23/5/2005 and the Court gave the 3rd Respondent adequate time of 42 days to appear in Court, that the Rules nowhere provide that the party within jurisdiction should be given 30 days within which to enter appearance though this is what the lower Court did giving both defendants 42 days, that the writ on page 3-4 of the record is that which was served on the appellant giving him 8 days to file a memorandum but indeed the return date for the copy served him and the one served in Lagos was the same 4/7/05, that the appellant was only entitled to 8 days to enter appearance and therefore his argument under this issue is once again untenable and we urge the Court to resolve this issue against him, that for the avoidance of doubt, apart from the Lagos Rules of 1994 and 2004, neither the Sherriff & Civil Process Act nor the FCT High Court Rules provides for how to issue and serve concurrent writs and that explains the paramountcy of the Lagos Rules in this Appeal, that the judicial authorities cited by Learned Counsel for the appellant are distinguishable from this case and therefore cannot apply to this case.
Let me now consider the merits of the above arguments of both sides.
It is clear from the express provisions of S.98 of the Sheriffs and Civil Process Act that it is the Writ of Summons for service out of the State or Capital Territory in which it is issued that would be issued as a concurrent writ with the one for service within jurisdiction and it is the one to be marked concurrent. The exact of that provision reads thusly-
“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.”
So in our instant case, it is the writ for service on the 1st defendant in Lagos, outside the Federal Capital Territory in which it is issued that is the concurrent writ and is the one to be marked ‘Concurrent’. See Order 4 Rule 13 of the High Court of FCT (Civil Procedure) Rules 2004 which provides for the practice of issuing concurrent writs. It states thusly-
13. (1) One or more concurrent writs may, at the request of a plaintiff, be issued at the time when the original writ is issued or at anytime thereafter before the original writ ceases to be valid.
(2) With no limitation to the generality of Sub-rule (1), a writ for service within the jurisdiction may be issued as a concurrent writ, with one which, or notice of which, is to be served out of the jurisdiction; and a writ which or notice of which, is to be served out of the jurisdiction may be issued as a concurrent writ with one for service within the jurisdiction.
(3) A concurrent writ is a true copy of the original writ with differences only (if any), as are necessary having regard to the purpose for which the writ is issued.
The writ for service on the 2nd defendant in Abuja, within jurisdiction is not the concurrent writ and is not required to be marked concurrent. S.99 of the Sheriffs and Civil Process Act is not applicable to a writ for service on a party within jurisdiction, such as the writ for service on the 2nd defendant in Abuja in this case. A writ for service within jurisdiction is not a writ for service under part VII of the Sheriffs and Civil Process Act because it is not for service outside jurisdiction. S.99 of the Sheriffs and Civil Process Act states that it applies to a writ for service under Part VII of the Act. The exact of the provisions reads thusly- “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.”
The endorsement copy of the writ of summons that was served on the 1st defendant in Lagos, out of jurisdiction is reproduced at pages 74 – 75 of the record of this appeal. The name of the 1st defendant is ticked as the party to be served or served. In the last paragraph of the writ of summons at the foot, it is indorsed thusly- ?This writ was served by me at No. 13 Martin Street Lagos on the defendant (here insert mode of service) on the 25th day of May, 2005.”
On the face of the first page of the Writ of Summons, it is glaring that the typewritten eight days initially specified as the period within which the 1st defendant should enter appearance to the suit was cancelled with pen (ink) and on top of the 8, the figure 30 was written in ink. So the writ of summons that was served on the 1st defendant did specify 30 days as the period within which it should enter appearance to the suit in keeping with S.99 of the Sheriffs and Civil Process Act. But it was not marked ?concurrent? contrary to S.98 of the same Act. I am not inclined to agree with the submission of Learned Counsel for the appellant that failure to mark the writ of summons ‘concurrent’ should invalidate it. That would amount to a technical legalism that cannot help the course of justice in the case, especially as the 1st defendant has not shown or even alleged that it was prejudiced by failure to mark the writ concurrent.
I find the decision of the supreme Court in Broad Bank Nig. Ltd v. Olayiwola & sons Ltd (2005) 1 SC (pt. 11) 1 on the effect of the breach of the provision of the Sheriffs and Civil Process Act concerning a writ of summons for service out of jurisdiction very instructive. It states thusly- ‘The provision of Section 99 of the Sheriff and Civil Processes Act is directory. Consequently, once a defendant is given 30 days to enter appearance to a writ of summons served outside jurisdiction of a Court, the failure to endorse on the writ that the defendant has 30 days within which to enter appearance to the writ would not invalidate the writWhere the prescription of the law is mandatory even if only on a procedural level, a Court in its quest to do justice ought generally to be imbued with the dictates of reason and the nature of the particular case to seek to accommodate a party that appears to have run foul of the dictates of a procedural law.”
I am influenced by this decision to condone the omission to mark ‘concurrent’ on the concurrent writ of summons issued in the Federal Capital Territory for service on the 1st defendant in Lagos and hold that it did not vitiate the writ. It remained validly served out of jurisdiction.
Let me now consider the issue of leave to issue and serve the writ of summons out of jurisdiction.
It is correct that the Supreme Court has in the Nwabueze & Anor v. Obi-Okoye (1988) 4 NWLR (pt. 91) 664 and Owners of THE M.V. ARABELLA v. NAIC (supra) and other cases have restated that leave to issue and serve a writ of summons for service out of jurisdiction must be first obtained before such writ is issued and served out of jurisdiction and that failure to do so vitiates the competence of the writ of summons and renders it void.
This requirement is prescribed in Order 4 Rule 6 of the High Court of Federal Capital Territory (Civil Procedure) Rules 2004 thusly- ?Subject to these Rules or any written law in force in the Federal Capital Territory, Abuja, no writ of summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without leave of a Court or Judge in Chambers.
In practice it is easy and straightforward to apply this Rule where the defendant or all the defendants are to be served outside jurisdiction. But where as in this case, they are more than one defendants and only one of them is to be served out of jurisdiction, the application of the above Rule presents some difficulty. This is because no leave is required to issue the writ for service within jurisdiction. So the writ is validly issued without leave against the defendant to be served within jurisdiction. The original writ of summons was issued on 10-5-2005. By a motion exparte filed on 20-5-2005, the plaintiffs applied for the leave of the trial Court to issue and serve the said writ of summons and all other processes in the case on the 1st defendant out of jurisdiction. The trial Court granted this application on 23-5-2005. The writ of summons was served on the 1st defendant on 25-5-2005 as the endorsement thereon shows.
Learned Counsel for the appellant has argued that since one of the defendants was to be served out of jurisdiction, leave to issue the original writ must first be obtained before it is issued irrespective of the fact that one or some of the parties are to be served within jurisdiction. Learned Counsel for the respondent argued that the said Rule was complied with, that after filing the initial writ of summons on 10-5-2005, the plaintiffs applied for it to be issued a second time for service out of jurisdiction of the FCT High Court in Lagos, that the writ was taken to the Lagos State High Court where it was sealed and served on the 1st defendant and that this procedure though not expressly provided in the High Court of FCT (Civil Procedure) Rules, it is expressly provided in Order 6 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules 2004 thusly- ?A claimant may at the issuance of an originating process or at any time during its life time cause to be issued one or more concurrent originating processes each to bear the same date as the initial process marked ?Concurrent? and have stated on it the date of the issue.”
The approach adopted by Learned Counsel for the appellant in applying for the issuance of the concurrent writ during the life time of the original writ is not strange and is legally permissible. It is not correct that the procedure is not expressly provided for in the High Court of the FCT (Civil Procedure) Rules 2004. The recourse to Order 6 Rule 9 of the 2004 Lagos State High Court (Civil Procedure) Rules is unnecessary.
The procedure is clearly provided for in Order 4 Rule 13 of the High Court of FCT (Civil Procedure) Rules 2004 thusly-
13. (1) One or more concurrent writs may, at the request of a plaintiff, be issued at the time when the original writ is issued or at anytime thereafter before the original writ ceases to be valid.
(2) With no limitation to the generality of Sub-rule (1), a writ for service within the jurisdiction may be issued as a concurrent writ, with one which, or notice of which, is to be served out of the jurisdiction; and a writ which or notice of which, is to be served out of the jurisdiction may be issued as a concurrent writ with one for service within the jurisdiction.
(3) A concurrent writ is a true copy of the original writ with differences only (if any), as are necessary having regard to the purpose for which the writ is issued.
So the original writ of summons, the leave to issue and serve the concurrent writ of summons on the 1st defendant out of jurisdiction within 12 months of the issuance of the original writ of summons and the issuance and service of the concurrent writ of summons on the 1st defendant are valid.
In the light of the foregoing, issues Nos. 5 and 6 are resolved in favour of the 1st & 2nd respondents.
Let me now deal with the fresh issues raised in the 3rd respondent?s brief.
Let me now start with the issue that all the Court processes at the trial are incompetent because they were filed by a law firm, Isaac Okpanachi & Co., and not a known and identifiable legal practitioner. Learned Counsel for the 1st and 2nd respondents contends that the issue is incompetent and not valid for consideration because it is not based or derived from any of the grounds of this appeal and the 3rd respondent did not file a cross appeal or respondent?s notice on the basis of which it can raise that issue.
Let me now consider the merits of these arguments.
It is correct that there is no ground of this appeal complaining that all the processes filed in the trial Court before the judgment sought to be set aside are incompetent because they were filed by a firm, named, Okpanachi & Co. and not a legal practitioner.
The 3rd respondent did not file a cross appeal or a respondent?s notice making such a complain. Therefore that issue is incompetent and not valid for consideration in this appeal. See Nsirim v Amadi (2016) 5 NWLR (Pt. 1504) 42 @ 62 in which the Supreme Court held that- Usually, the respondent in whose favour the Court has given judgment will, and can, not challenge the judgment in his favour. A respondent who has issue or issues against the judgment in his favour can raise the issues by way of cross-appeal or respondent’s notice in strict compliance with Order 3 Rule 14(1), (2) and (3) of the Court of Appeal Rules, 2002 reproduced in full in the lead judgment.
He can also file a cross-appeal. If he has not taken advantage of Order 3 or filed a cross-appeal and desires to raise issue or issues in the appeal, he cannot raise issue outside the appellant’s grounds of appeal. He can adopt the appellant’s issues as formulated or give the issues a slant to favour his side of the case. If he must formulate issues of his own the issues must flow from the appellant’s grounds of appeal. As demonstrated in the lead judgment, the respondent did not file a cross-appeal or a respondent’s notice. He formulated the following issues in his brief of argument:
‘Whether or not the learned Justices of the Court of Appeal were right in refusing to consider and determine the question of the capacity or locus standi of the respondents to sue, which was a challenge to the competence of the action and, therefore the jurisdiction of the trial Court to entertain the respondent’s claims.’
This is not an issue raised by the appellant nor is it framed from it and is floating in the air without any foundation. The issue was framed in contravention of the principle that were the respondent has not filed a cross-appeal, the issues for determination formulated by him must arise from the grounds of appeal filed by the appellant. See Ogundare v. Ogunlowo (1997) 6 NWLR (pt. 509) 360;Padawa v. Jatau (2003) 5 NLWR (Pt. 813) 247.I am in agreement with learned counsel for the respondent that what the learned Justices of the Court of Appeal did was the proper and correct interpretation of the Rule in question. The reason is that where a respondent as the appellant now, where he had not cross-appealed or filed a respondent’s notice since he must formulate issue for determination in the appeal within the grounds filed by the appellant and not outside those grounds of appeal. Therefore, in that failure to file either a cross-appeal or notice of contend, the Court of Appeal had no option than to decline to entertain the issues which were not covered in the grounds of appeal. See comptroller Nigeria Prisons Services & Ors v. Dr. Femi Adekanye & Ors (2002) FWLR (Pt. 1993) 8 NWLR (Pt. 313) 516 @ 528, (No. 1) (2002) 15 NWLR (Pt. 790) 318; Edem v. Canon Ball Limited (1998) 6 NWLR (Pt. 553) 298.”
Also, since the 3rd respondent did not file a cross-appeal or a respondent’s notice, he will not be allowed to file a brief attacking the judgment appealed against or be allowed to present oral argument in the course of the hearing of the appeal. See Obi v INEC (2007) 7 SC 268 in which the Supreme Court held that “It is also the law that a respondent to an appeal who neither files a cross-appeal nor a respondent’s notice, will not be allowed to even file a Brief of Argument attacking the judgment appealed against or be allowed to present oral argument in the course of the hearing of the appeal. See also Eze v. Obiefuna (1995) LPELR 119 (SC).
In any case, the argument of Learned Counsel for the 3rd respondent that the writ of summons that commenced the suit is incompetent because it is not signed by an identifiable legal practitioner is not valid, since it was signed and issued by the Registrar of the trial Court. The signature of the plaintiff’s legal practitioner on the writ of summons is not a requirement for the issuance of the writ of summons. Order 4 Rules 1 and 15 of the High Court of FCT (Civil Procedure) Rules 2004 provide that-
1. (1) A writ of summons shall be issued by a Registrar, or other officer of Court empowered to issue the summons, on an application.
(2) An application shall be made in writing by the plaintiff?s solicitor who completes Form 1, as in the Appendix.
(3) Where an applicant for a writ of summons is illiterate, or has no solicitor, a Registrar or other officer of Court may dispense with a written application, put himself instead and record full particulars of the oral application made and on that record a writ of summons may be prepared, signed and issued.
15. A writ is issued when signed on by a Registrar or other officer of Court duly authorised to sign the writ and accompanied by:-
39
a) A statement of claim;
b) Copies of documents mentioned in the statement of claim to be used in evidence;
c) Witness statement on oath; and
d) A certificate of pre-action counselling.”
It is clear from these provisions that a writ of summons is issued by the Registrar or other officer of the Court empowered to issue the summons and not by the plaintiff?s legal practitioner. This same issue was determined by this Court while considering the same Order 4 Rules 1 and 15 of the 2004 High Court of Federal Capital Territory Rules in Leadership Newspaper Group Ltd v. Ogebe (judgment of 29-3-2017 in CA/A/686/2013) thusly- ?the trial Court was correct when it held that it is Order 4 Rule 1(1) and Rule 15 of the High Court of FCT (Civil Procedure) Rules, 2004 that determines who should or can sign a Writ of Summons to commence civil proceedings in the Federal Capital Territory High Court and when such a Writ of Summons can be said to have been validly issued. It correctly answered the question of who can sign the writ and when it should be considered validly issued when it held that it is the Registrar of the trial Court that should sign the writ or other officer of Court duly authorised to do so and that the Writ becomes validly issued when it is so signed.
To buttress this position, the trial Court rightly relied on the decision of the Supreme Court in Famfa Oil Ltd V A.G of the Federation & Anor (2003) 9 – 10 SC 31 at 44 that once a prospective plaintiff has properly made his claim as required by law, delivered the same to the Registrar of the Court, paid the necessary fees payable and such fees are fully paid, his responsibility ceases. What is left to be done, such as signing and issuance of the relevant processes, or the writ of summons or originating summons by a judge or other officers empowered by law to sign them are entirely the domestic administrative affairs of the Court and its staff and their failure to discharge any of their duties should not be visited on the litigant by allowing it vitiate any process filed by the litigant.
This decision represents the law on this point. It is noteworthy that the appellant made no attempt to fault the trial Court’s reliance on this Supreme Court decision. By not complaining against the trial Court?s reliance on the decision as representing the authoritative and binding case law on the point, the appellant accepted the trial Court’s reliance on that decision as correct.
Learned SAN for the appellant correctly relied on R.M.A.F.C v. Onwuekweikpe (supra) which applied Order 4 Rule 1(1) of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 and held that it is the Registrar that is required to sign the writ of Summons and that the writ became validly issued once signed by the Registrar of the trial Court.
Let me point out here that there is no basis for the argument that the writ should have been signed by the plaintiff or an identifiable legal practitioner on his behalf. There is nothing in Order 4 Rule 1(1) and Rule 15 of the High Court (Civil Procedure) Rules, 2004 requiring that the writ be signed by the plaintiff or his or her legal practitioner. So the absence of the signature of the plaintiff or that of his legal practitioner on the Writ of Summons was of no moment and had no legal effect on the validity of the Writ of Summons that commence the suit at the trial court.?
This Court in Mobil Producing Nig. Ltd v.Kudehinbu & Ors (judgment of 17-11-2017 in CA/A/43/2012) followed its earlier decision in Leadership v. Ogebe holding thusly- ?I do not agree with the Submission of Learned Counsel for the appellant that since the writ of summons that commenced the suit was not signed by a legal practitioner, then the suit was not commenced by due process of law and thereby robbed the trial Court of jurisdiction to entertain it and that the trial Court should have struck it out.
I agree with the submission of learned counsel for the respondents that under the Federal High Court (Civil Procedure) Rules 2000, the rules applicable on 19-10-2000 when the writ of summons was filed the signing of the writ of summons by a legal practitioner is not a requirement sine qua non to the issue of the writ of summons. Beyond submitting a written application in form 1 in Appendix 6 to the Rules, the plaintiff or his legal practitioner had no role in the issuance of the writ of summons. The application in the said form, does not become an issued or valid writ of summons by virtue of its presentation and filing in the Court Registry. Order 6 Rule 1 (i) in the said 2000 Rules provides that ?a writ of summons shall be issued by the Registrar or other officer of the Court empowered issue summons on application.”
Order 6 Rules 13 therein provide that ‘issue of a writ takes place upon its being signed a Judge in Chambers’. A writ is valid upon it being issued as prescribed by Order 6 Rules 1, 7, and 13 of the 2000 Rules. The signing of the writ by a Judge in Chambers is the only requirement under the said Rules for the writ to be issued. There is no provision in the said 2000 Rules requiring that a writ of summons must be signed by a legal practitioner before it can filed or be regarded as having been issued. Order 6 Rules 8 and 10 which expressly state the conditions to be satisfied before a writ is issued, did not include that it must be signed by the plaintiff?s legal practitioner.
In Igwe Uzur & Sons Nig. Ltd. v. Onwuzor & Ors (2007) 4 NWLR (Pt. 1024) 303, this court had held thusly ‘it is my respectful view that in both cases, that is where a plaintiff has a solicitor and, or where the plaintiff is an illiterate or unrepresented by a solicitor, neither the plaintiff or his solicitor, nor the illiterate or unrepresented plaintiff has a duty greater than making an application. The duty to issue a writ is that of the Court Registrar. However, for the Registrar, to issue the writ, the plaintiff whether represented or unrepresented or illiterate, would have paid the necessary fees..’
I have carefully read Rules 1 and 8(1) of Order 5 and Form 1 at pages 176 – 178 reproduced above. This has shown that one initiatory step in the commencement of civil proceedings in the High Court is the application made to the Registrar. This is just a step. For there to be an actual commencement of the proceedings, there must be another step. That is the issuance of the writ. Clearly, here lies dichotomy of functions in commencing an action under the Rules, between plaintiff, as an applicant and the Registrar. Whether a plaintiff has a solicitor or not, there must be an application. The only difference is that, in the case of a plaintiff who has a solicitor the solicitor has to fill in ?Form 1? while in the case of an illiterate or a plaintiff who is not represented by a solicitor, an oral application must be made by him and recorded. In both cases, the application in Form 1, or recorded oral application, must form the basis upon which the issuance of writ must be hinged. This is done only and only if and when the Registrar issues and seals (signs) the writ not the application. See Rule 15, which bears this proposition.
Learned Counsel for the 3rd respondent admit that the traditional role of the respondent is to defend the judgment of the lower Court, but that ?having regard to the apparent and manifest irregularities which were just discovered after the counsel received the Record of Appeal in respect of this appeal on 22nd March, 2018, it is necessary to draw the attention of the Court to the patent and obvious irregularities and reasons why the Judgment appealed against ought not to stand and the appeal filed allowed.
The 3rd respondent’s brief cannot do this. As held by the Supreme Court inAdefulu v. Oyesile (1989) 12 SC 43, ?the traditional role of a respondent to an appeal is to defend the judgment appealed against. If he wants to depart from this role by attacking the said judgment in any way, he is obliged by the rules to file a cross appeal.” In Cameroon Airlines v. Otutuizu(2011) LPELR 827 (SC) the Supreme Court again held that ‘the role of the respondent in an appeal is to defend the judgment of the trial Court, but where the respondent is not comfortable with a finding (not the entire judgment) in the judgment which he considers fundamental he can only do so by filing a cross-appeal. The respondent in the main appeal for the purposes of the cross-appeal, files a Respondent/Cross appellant’s Brief. The appellant in the main appeal must respond, and so he files an appellant/cross brief. If the Respondent/Cross appellant seeks to respond to an issue of Law or argument in the appellant/Cross Respondent’s brief he files a Respondents/Cross appellant’s reply brief. It is only after these processes are properly before the Court, that the appeal can be heard.” See Emeka v. Okadigbo & Ors (2012) LPELR 9338 (SC).
“Order 19 Rule 4(2) of the Court of Appeal Rules 2016 provides thusly- The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis, also conform to Rule 3(1), (2), (3), (4), (5) and (6) of this Order.”
In the light of the foregoing, I hold that the 3rd respondent?s brief is incompetent. It is hereby struck out.
This suit shall be sent back to the trial Court to be wholly retried. For this reason, I have refrained from determining issues Nos. 2, 3 and 4 in the appellant?s brief, as to do so would pre-judge and prejudice the retrial of the merit of the suit by the trial Court.
On the whole, this appeal succeeds as it has merit. It is accordingly allowed. The ruling of the High Court of Federal Capital Territory delivered on 28-11-2006 in Suit No. FCT/HC/CV/495/05 by S.D. Bage J, is hereby set aside. Rather, it is hereby adjudged that the appellant?s application to set aside the judgment is hereby granted. The said judgment of the High Court of FCT delivered on 18-11-2005 by S.D. Bage, J is hereby set aside. The said Suit No. FCT/HC/CV/495/05 is to be wholly retried by the High Court of FCT.
The respondents shall pay costs of N400,000.00 to the appellant.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the lead judgment of my learned brother, EMMANUEL AKOMAYE AGIM, I am in agreement with his reasoning and conclusion and orders reached therein.
PETER OLABISI IGE, J.C.A.: I agree
Appearances:
Sam T. Ologunorisa, Esq. SAN.For Appellant(s)
Isaac Okpanachi, Esq. with him, Sam Ameh, Esq., Paul H. Omale, Esq., Fidelise E. Akporeha, Esq. for 1st and 2nd Respondents.
Akinyemi Aremu, Esq. for the 3rd RespondentFor Respondent(s)
Appearances
Sam T. Ologunorisa, Esq. SAN.For Appellant
AND
Isaac Okpanachi, Esq. with him, Sam Ameh, Esq., Paul H. Omale, Esq., Fidelise E. Akporeha, Esq. for 1st and 2nd Respondents.
Akinyemi Aremu, Esq. for the 3rd RespondentFor Respondent
