NGC OIL SERVICES LTD v. GTB & ANOR (2020)

NGC OIL SERVICES LTD v. GTB & ANOR

(2020)LCN/13976(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, March 26, 2020

CA/L/878/2016

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Tijjani Abubakar Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

NGC OIL SERVICES LIMITED APPELANT(S)

And

1. GUARANTY TRUST BANK PLC 2. UNIC INSURANCE PLC. RESPONDENT(S)

RATIO

THE ROLE OF A RESPONDENT IN AN APPEAL

It has to be emphasised from the onset that the role of a respondent in an appeal is to defend the judgment appealed against. A respondent who has not cross-appealed against a judgment or any part thereof cannot seek the reversal or variation of any such findings of the Court on appeal vide Musa v. State (2019) 4 NWLR (pt.1662) 335 at 344 following Ogunbadejo v. Owoyemi (1993) 1 NWLR (pt.271) 517. See also Nsirim v. Amadi (2016) 5 NWLR (pt.1504) 42. PER IKYEGH, J.C.A.

THE RESPONSIBILITY OF THE REGISTRY STAFF IN RELATION TO A SUIT UNDER THE UNDEFENDED LIST

Upon properly filing the suit, it was no longer the responsibility of the 1st respondent, as the claimant at the Court below, to mark and place the suit under the undefended list. The responsibility and duty to do so resided with the domestic/internal administrative affairs of the registry staff of the Court below beyond the control of the 1st respondent who cannot be penalised or blamed for the lapse occasioned by the registry staff of the Court below for not performing their official duty of marking and placing the suit under the undefended list. See the cases (supra) cited on the issue by the 1st respondent read with the cases of Adeleke v. Oyo State House of Assembly (2006) 11 NWLR (pt.990) 136, Waziri v. Geidam (2016) 11 NWLR 230, Oloyede v. State (2018) All FWLR (pt.960) 1345, Enterprise Bank Ltd. v. Aroso (2014) 3 NWLR (pt.1394) 256, Orji v. State (2019) 13 NWLR (pt.1688) 93 at 116 – 117 following Ede v. Mba (2011) 18 NWLR (pt.1278) 236, C.C.B. (Nig.) Plc v. A.G., Anambra State (1992) 8 NWLR (pt.261) 528, Anyanwoko v. Okoye (2010) 5 NWLR (pt.1188) 497, Fidelity Bank Plc v. Monye (2012) 10 NWLR (pt.1307) 1, General Electric co. v. Akande (2012) 15 NWLR (pt.1327) 593, Obiora v. Osele (1989) 1 NWLR (pt.97) 254, together with the cases relied upon by the Court below in part of its ruling in pages 232-233 of the record particularly the case of G. Cappa Plc v. Nnaegbuna & Sons Ltd. and Anor. (2009) LPELR — 8349 CA following the Supreme Court case of Broad Bank Nigeria Ltd. v. Alhaji Olayiwola and Sons Ltd. and Anor. (2005) 1 S.C. (pt. 11) 1 at 12 per the lucid lead judgment prepared by His Lordship, Pats-Acholonu, J.S.C., (now of blessed memory) thus-
“… if the prescription of the law is that the writ should be in a certain nature or in certain manner before it can be valid for service, it is the bounden duty of the registrar to perform his duty of endorsing the process. The appellant cannot be punished for the negligence or tardiness of the registrar in the performance of his duty”.
See in addition Famfa Oil Ltd. v. A-G., Federation and Anor. (2003) 18 NWLR (pt. 852) 453, Fada and Anor. v. Naomi and Ors. (2002) 4 NWLR (pt. 757) 318. So much on the issue of marking and placing the suit under the “undefended list”. PER IKYEGH, J.C.A.

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal arose from the decision of the Federal High Court sitting in Lagos (the Court below) whereby it granted an ex parte application to place an action on the undefended list and to deem the writ of summons comprising the action attached to the ex parte motion as properly filed and for service of the writ of summons and other processes accompanying the writ of summons on the appellant in Ogun State said to be outside the jurisdiction of the Court below.

Stripped of details, the 1st respondent as the claimant at the Court below filed an ex parte application seeking for leave to place the suit under the “undefended list” and to mark the same, accordingly, as well as for an order deeming the proposed writ of summons as being properly issued and filed and for leave to serve the writ of summons together with the accompanying processes and other processes in the suit on the appellant in Ogun State, Nigeria, said to be outside the jurisdiction of the Court below.

The writ of summons itself was not filed concurrently with the ex parte application on 18.05.16, but was attached as an

Exhibit to the motion ex parte. The Court below granted the ex parte application as prayed on 26.05.16. The writ of summons was subsequently filed on 01.06.16.

The appellant challenged the ruling granting the ex parte application by way of preliminary objection arguing, in the main, on the competence of the action and service of it outside the jurisdiction of the Court below. The Court below heard the preliminary objection and held that the writ of summons was valid and was properly served on the appellant.

Obviously averse to the decision of the Court below, the appellant filed on appeal against it which is contained in a notice of appeal with two (2) grounds of appeal seeking three (3) reliefs — an order allowing the appeal and setting aside the decision of the Court below and dismissing or striking out the suit as presently constituted against the appellant for want of jurisdiction and the omnibus prayer comprising such further and/or other order(s) the Court below might deem fit to make in the circumstances of the case.

The appellant’s brief of argument was filed on 15.09.16. It was argued therein on the sole issue for determination

covering the two (2) grounds of appeal that the Court below should not have deemed the existence, filing and issuance of a writ of summons that was assessed and paid for and filed on 01.06.16 as properly filed and placed before the Court below on the date the deeming order was made on 26.05.16.

Consequently, it was contended that the deeming order should be set aside as void and without legal basis as the said order cannot bring into existence a substantive suit, either retrospectively or prospectively, as a writ of summons takes its life from the date it is filed and due fees paid, not before, therefore the order of deeming was speculative and wrong and should be set aside for being null and void vide the cases of Mana v. PDP and Ors (2011) LPELR – 19754, UBA Plc v. Mode Nigeria Ltd. (1999) LPELR – 6766, Ekpeto v. Wanogho (2004) 18 NWLR (pt. 905) 394 at 412.

The appellant also contended in the brief that the suit filed on 01.06.16 could not have been the one placed on the undefended list and served on the appellant outside the jurisdiction of the Court below, but the proposed writ of summons attached to the ex parte application showing leave was not

granted for the suit filed on 01.06.16 to issue and be served on the appellant outside the jurisdiction of the Court below; nor was the writ of summons filed on 01.06.16 endorsed for service outside the jurisdiction of the Court below as required by Section 97 of the Sheriffs and Civil Process Act, Vol. 13, Cap 56, LFN 2004.

Consequently, it was contended that the Court below erred by holding in its ruling delivered on 08.07.16 that the orders made on the ex parte application on 26.05.16 validated the writ of summons as an action filed on the undefended list with the leave of the Court below and complied with Section 97 of the Sheriffs and Civil Process Act as the said order of 26.05.16 did not have prospective and futuristic effect on the suit subsequently filed on 01.06.16 rendering the writ of summons in question invalid and incompetent vide the cases of Ukangwu v. Pitt (2008) LPELR – 5162, Odua Investment co. Ltd. v. Talabi (1997) 10 NWLR (pt. 523) 1 at 52, NNPC v. Elumah (1997) 3 NWLR (pt. 492) 195, Owners of MV “Arabella” v. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (pt. 1097) 182 at 207, Kida v. Ogunmola (2006) LPELR – 1690,

Bayero v. Mainasara and Sons Ltd. (2006) LPELR – 7587, NEPA v. Onah (1997) NWLR (pt. 484) 680.

The appellant further argued that since the leave of the Court below was not sought and obtained for the issuance of the writ of summons filed on the undefended list on 01.06.16, the said writ of summons should be declared null and void vide Order 12 of the Federal High Court (Civil Procedure) Rules 2009 (rules of the Court below) read with the case of Bayero v. Mainasara (supra) at 42.

It was finally contended that the action was initiated without due process as required by Order 3 of the Rules of the Court below which does not recognize initiation of an action by ex parte application but by writ of summons or by petition or by originating summons or by originating motion; consequently, the appellant urged that the action should be held to be incompetent having not complied with the mandatory rules of the Court below for the initiation of an action and deprived the Court below of the requisite jurisdiction to entertain the action vide Noibi v. Fikolati (1987) 1 NWLR (pt. 52) 619, Waade Investment Ltd. v. Trade Bank Plc (2005) 17 NWLR (pt. 955) 519,

Agip Nig. Ltd v. Agip Petrol International and Ors. (2010) 5 NWLR (pt. 1187) 348 at 419 – 420, Madukolu v. Nkemdilim (1962) ALL NLR 581 at 595, Ojo Ajao and Ors. v. Opoola Alao and Ors. (1986) 5 NWLR (pt. 45) 802, Kida v. Ogunmola (2006) LPELR — 1690; upon which the appellant concluded that the appeal should be allowed and the writ of summons set aside.

The 1st respondent filed its brief of argument of 09.11.16, which was deemed as properly filed on 04.12.19. Relying on the cases of Bona Textile Ltd and Anor. v. Asaba Textile Mill Plc (2012) LPELR – 9828, National Assembly v. C.C.I. Ltd. (2008) 5 NWLR (pt. 1081) 519 at 537, 539 and Order 12 of the Rules of the Court below, the 1st respondent contended that its duty was to make an application ex parte for the writ to be placed on the undefended list, while it was the responsibility of the registrar of the Court below to mark the suit as “undefended list” upon filing by the 1st respondent after obtaining the leave of the Court below, showing the 1st respondent complied with the requirements of having the suit placed on the undefended list, therefore the Court below was right in dismissing the preliminary objection

and holding that the writ filed on 01.06.16 was validly issued/filed and served.

The 1st respondent paused to refer to paragraph 3.15 of the appellant’s brief to observe that the words to the effect that the Court below “invented facts” should be held to be unprofessional language and an affront to the Court below.

The 1st respondent proceeded to contend that the appellant’s arguments to the effect that the 1st respondent’s writ of summons ought to have been filed by the 1st respondent before applying for an ex parte order to place it on the undefended list was not raised and argued at the Court below but was argued by the appellant in the appeal without seeking and obtaining the leave of the Court and should be disregarded on that score vide Babalola v. The State (1989) 4 NWLR (pt. 115) 264, Akuneziri v. Okenwa (2000) 15 NWLR (pt. 691) 526, Abdulraheem v. Olufeagba (2006) 17 NWLR (pt. 1008) 265 at 357.

The 1st respondent contended that since its application to have the writ of summons marked and placed on the undefended list and to cause it to be endorsed for service on the appellant outside the jurisdiction of the Court below and to so serve

it in that manner was granted by the Court below, the failure of the registrar of the Court below to carry out the responsibility of marking the suit as “undefended suit” and endorsing it for service out of the jurisdiction of the Court below should not be visited on the 1st respondent vide Adegoke Motor Ltd. v. Odesanya (1988) 2 NWLR (pt. 74) (no pagination), Fidelity Bank Plc. v. Monye (2012) 10 NWLR (pt. 1307) 1 at 35, G. Cappa Plc. v. Nnaegbuna and Sons Ltd. and Anor. (2009) LPELR – 8349, Oke v. INEC and Ors. (2008) LPELR – 8619.

In addition to its argument, the 1st respondent relied on the case of Maritime and Anor. v. Josepdam and Sons (Nigeria) Ltd. (2014) LPELR-22757 to support the ruling made by the Court below on the validity and service of the writ of summons.

The 1st respondent also argued that by Sections 19 and 94 of the Sheriffs and Civil Process Act (the Act), the High Courts that the Act applies to are the High Court of the Federal Capital Territory and the High Court of a State, excluding the Federal High Court; and that, in any event, Order 6 Rule 13 of the Rules of the Court below defines outside of jurisdiction to mean outside

Nigeria.

The 1st respondent further contended that it had argued at the Court below that the preliminary objection was incompetent in that it did not comply with Order 29 Rule 2 of the Rules of the Court below which required the appellant to first file a memorandum of appearance stating that she is appearing conditionally before filing a notice of preliminary objection challenging the competence of the action which the appellant breached by filing the memorandum of appearance on 13.06.16 after the notice of preliminary objection was filed on 09.16.16, so the Court below should have struck out the notice of preliminary objection on that ground as rules of Court are meant to be obeyed and complied with by the Court and the parties vide Dingyadi v. INEC (2010) 18 NWLR (pt. 1224) 154.

I find it pertinent to take the issue of Order 29 Rule 2 of the Rules of the Court below. Paragraphs of the 1st respondent’s counter affidavit which is contained in page 229 of the record deposed that —
“4.8 The Court had no jurisdiction to grant the Applicant’s application.”
Pages 230-238 of the record which contain the written address in opposition to the

notice of preliminary objection did not discuss Order 29 Rule 2 of the Rules of the Court below. Nor did the ruling of the Court below which is contained in pages 262-265 of the record dwell in part on Order 29 Rule 2 of the Rules of the Court below.
Moreover, the appeal is not based on Order 29 Rule 2 of the Rules of the Court below. Nor did the 1st respondent cross-appeal in the case; therefore the arguments made by the 1st respondent on Order 29 Rule 2 of the Rules of the Court below are moribund and hang in the air and are hereby not countenanced. Also, the issue was not raised at the Court below, nor was any decision given on it by the Court below, to agitate a cross-appeal so it cannot be determined in the present appeal — Ezeuko v. State (2016) 6 NWLR (pt.1509) 529.

(1993) 1 NWLR (pt.271) 517. See also Nsirim v. Amadi (2016) 5 NWLR (pt.1504) 42.

The appellant did not raise and argue the point at the Court below that the writ of summons should have been filed before the ex parte application was filed at the Court below. Being a fresh issue, the appellant who did not seek and obtain the leave of the Court to raise and argue it in the appeal cannot pursue it at this stage of the proceedings. Arguments on the said fresh issue are, accordingly, disregarded on that account vide the cases (supra) cited on the issue by the 1st respondent.

The linchpin or sting of the ruling of the Court below is contained in pages 264 — 265 of the record as follows-
“From the order of this Court made on the 26th day of May, 2016, this Court granted leave to the Plaintiff to serve the writ of summons, the accompanying processes and other processes in this case on the 1st Defendant in its Ogun State address of KM 38, Abeokuta Expressway, Otta, Ogun State, Nigeria which is outside the jurisdiction of this Court. This order granted is enough to show that the process is meant to be served outside jurisdiction and ought to be

marked as such by the Registrar of this Court.
It is the duty of the Registrar of this Court to carry out its administrative duty endorsing the writ for service outside jurisdiction and not the duty of the Plaintiff to do same.
It is trite that the Court will not penalize a litigant for the mistake of the Court’s Registry. See the case of Amosun vs. WEC (2009) 4 WRN 32 at 55 – 56.
The failure of the Registry of this Court to endorse the writ of summons outside the jurisdiction of this Court cannot be visited on the Plaintiff in this case.
I hold that the writ of summons dated and filed 1st day of June 2016 which was served on the 1st Defendant is valid and in compliance with Section 97 of the Sheriffs and Civil Process Act, Vol. 13, Cap 56, LFN 2004.
I hereby strike out the 1st Defendant preliminary objection dated the 8th of June, 2016.”
For clarity, the Court below made the order on the ex parte application which is contained in pages 82-83 of the record as follows-
“ORDER
UPON THIS MOTION EX-PARTE dated and filed on the 1st day of May, 2016, praying for the following orders.
1. AN ORDER of the Honourable Court

for leave to place this suit under the “Undefended list” and marking the Writ of Summons accordingly.
2. AN ORDER of this Honourable Court deeming the Writ of Summons as being properly issued and filed.
3. AN ORDER of this Honourable Court for leave to serve the writ of Summons, the accompanying processes and any other processes in this cause on the 1st Defendant in its Ogun State address of KM 38, Abeokuta Expressway, Otta, Ogun State, Nigeria which is outside the jurisdiction of this Honourable Court
4. AND for such further order(s) as the Honourable Court may deem fit to make in the circumstances.
UPON READING the affidavit in support of Motion Ex-parte sworn to by Ejiro Lawrence, an employee of the Plaintiff/Applicant and one of the Officers Managing the relationship between the Plaintiff and the Defendants of Plot 635, Akin Adesola Street, Victoria Island, Lagos, with a written address and exhibits attached thereto and filed at the Court Registry.
AND AFTER HEARING Temilolu Adamolekun, Esq., of Counsel for the Plaintiff/Applicant move in terms of the motion paper.
IT IS HEREBY ORDERED AS FOLLOWS:-
1. That leave is granted

to the Plaintiff/applicant to place this suit under the “undefended list” and marking the Writ of summons accordingly.
2. That the Writ of Summons be deemed as being properly issued and filed.
3. That leave is granted to the Plaintiff/applicant to serve the writ of Summons, the accompanying processes and other processes in this cause on the 1st Defendant in its Ogun State address of KM 38, Abeokuta Expressway, Otta, Ogun State, Nigeria which is outside the jurisdiction of this Honourable Court.
That the case is adjourned to 13th June 2016 for hearing”.

Prayer 2 of the order granted (supra) deemed the writ of summons attached to the motion paper, by specifically referring to it as “the writ of summons” in prayer 2 of the motion paper (supra), as being properly issued and filed. While prayer 1 (supra) called it “this suit”. To “deem” a process as properly filed means the process concerned is considered as already filed on the date the deeming order is made. The import of a deeming order therefore is to treat the process or to regard it that it was not as initially, and, that it possessed certain qualities which it lacked initially vide

Shuaibu v. Muazu (2014) 8 NWLR (pt. 1409) 207 at 277 and 332.
Or more graphically, when it is stated that a thing is being deemed to be something it is not meant to say it is that which it is deemed to be. It is rather an admission that it is not what it is deemed to be; and that notwithstanding, it is not that particular thing, nevertheless it is still deemed to be that thing vide Akeredolu and Ors. v. Akinremi and Ors. (1986) 2 NWLR (pt. 25) 710 at 734 per Oputa, J.S.C., (now of blessed memory).
Prayer 2 (supra) which was granted by deeming the writ of summons attached to the motion ex parte as being properly filed when it was an Exhibit of the specimen of the writ of summons the 1st respondent intended to file but was yet to be filed should not have been deemed as properly filed by the Court below. Because filing fees was not assessed and paid for the writ of summons attached to the ex parte application vide page 4 of the record where there is assessment of filing fees for the ex parte application which did not include the writ of summons. Besides, the proposed writ of summons itself was not signed by the person that drafted it vide page 10 of the

record, showing it could not have been deemed to be filed in the defective condition it was made.
I think the order deeming as filed the specimen copy of the writ of summons which was attached to the ex parte application as an Exhibit was presumptuous as the proposed writ of summons could not have been filed as a valid writ of summons because of the death — wounds on it arising from non-payment of the filing fees and absence of the signature of the author of the writ of summons on the writ of summons vide Order 55 of the Rules of the Court below, as amended, and the cases of Omega Bank (Nig.) Plc v. O.B.C. Ltd. (2002) 16 NWLR (pt.794) 483, Sule and Ors. v. Orisajimi (2019) 10 NWLR (pt. 1681) 513 at 523 following Onwugbufor v. Okoye (1996) 1 NWLR (pt.424) 252. The deeming order for the filing the action is, accordingly, presumptuous and is hereby set aside for the reasons stated (supra).

The body of the process containing the proposed suit on the undefended list attached to the motion ex parte is the same as the suit the 1st respondent subsequently filed on 01.06.16 which is contained in pages 84-160 of the record and which was served on the

appellant against 13.06.16 for the hearing of the suit on the undefended list. The Court (Lagos Division; coram: Nnaemeka-Agu, Uthman Mohammed and Owolabi Kolawole, J.C.A. now all of blessed memory) held inter-alia in the case of Nigerian Civil Service Union and Anor. v. Essien and Anor. (1985) 3 NWLR (pt. 12) 306 at 314 that where a process is exhibited to the motion paper with prayer to have it filed, it is that process that should be filed upon the granting of the prayer to file it.
In the instant case, the writ of summons and the accompanying documents filed on 01.06.16 and served on the appellant have the same contents as the one earlier exhibited to the motion ex parte with respect to the body of the documents, therefore the 1st respondent did not file a different process from the one it had exhibited to the motion ex parte.

Page 85 of the record contains the assessment and payment of the filing fees of N50,000 for the writ of summons and N700 for the other miscellaneous registry requirements totaled N50,700, which was paid on 01.06.16; while the suit was scheduled to come up for hearing on 13.06.16. The validity and competence of the action

on account of the payment of the filing fees as assessed by the registrar of the Court below are in that wise settled without ado and I so hold vide Sule and Ors. v. Orisajimi (supra), Rasaki v. Ajijola (No. 1) (2018) 7 NWLR (pt.1617) 13, SPDCN Ltd. v. Agbara (2016) 2 NWLR (pt.1496) 353.

The undefended suit was filed on 01.06.16. The order granting leave to place it and mark it under the undefended list was made by the Court below on 26.05.16. For clearness and the avoidance of doubt, the order to that effect which is contained in pages 82-83 of the record reads —
“UPON THE MOTION EX-PARTE dated and filed on 28th day of May, 2016 praying for the following orders-
1. AN ORDER of the Honourable Court to place this suit under the “undefended list” and marking the writ of summons accordingly ….
IT IS HEREBY ORDERED AS FOLLOWS:-
1. That leave is granted to the plaintiff/applicant to place this suit under the defended list and marking the writ of summons accordingly”
The suit was therefore filed after the leave to place it under the undefended list was sought and obtained by the 1st respondent. It was not a matter of

putting the cart before the horse. But it was the converse or reverse of rightly putting the horse before the cart.

NWLR (pt.1188) 497, Fidelity Bank Plc v. Monye (2012) 10 NWLR (pt.1307) 1, General Electric co. v. Akande (2012) 15 NWLR (pt.1327) 593, Obiora v. Osele (1989) 1 NWLR (pt.97) 254, together with the cases relied upon by the Court below in part of its ruling in pages 232-233 of the record particularly the case of G. Cappa Plc v. Nnaegbuna & Sons Ltd. and Anor. (2009) LPELR — 8349 CA following the Supreme Court case of Broad Bank Nigeria Ltd. v. Alhaji Olayiwola and Sons Ltd. and Anor. (2005) 1 S.C. (pt. 11) 1 at 12 per the lucid lead judgment prepared by His Lordship, Pats-Acholonu, J.S.C., (now of blessed memory) thus-
“… if the prescription of the law is that the writ should be in a certain nature or in certain manner before it can be valid for service, it is the bounden duty of the registrar to perform his duty of endorsing the process. The appellant cannot be punished for the negligence or tardiness of the registrar in the performance of his duty”.
See in addition Famfa Oil Ltd. v. A-G., Federation and Anor. (2003) 18 NWLR (pt. 852) 453, Fada and Anor. v. Naomi and Ors. (2002) 4 NWLR (pt. 757) 318. So much on the

issue of marking and placing the suit under the “undefended list”.

The writ of summons having been validly issued, the next port of call in the appeal was its service on the appellant who was at all material times said to be ordinarily resident in Ogun State. Pages 3 — 4 of the record contain the motion ex parte which was said to have been brought under Order 12 Rule 1 and 2 of the Rules of the Court below requesting for an order of the Court below for leave to serve the writ of summons, the accompanying processes and any other processes in the suit on the appellant in its address at KM 38 Abeokuta Expressway, Otta, Ogun State, Nigeria said to be outside the jurisdiction of the Court below. The written address accompanying the motion ex parte which is contained in pages 75 — 78 of the record discussed only Order 6 Rule 13 and Order 12 Rule 1 of the Rules of the Court below.
The Court below granted the order to serve the appellant outside the jurisdiction of the Court below in prayer 3 contained in the enrolled order in page 83 of the record where the Court below stated that leave was granted to the 1st respondent to serve the writ of

summons, the accompanying processes and other process in the suit on the appellant in its Ogun State address of KM 38 Abeokuta Expressway, Otta, Ogun State based on its own rules of Court, not on the provisions of the Sheriffs and Civil Process Act.
A lot of dust was raised in argument on the applicability and relevance of the Sheriffs and Civil Process Act, particularly Section 97 thereof, on endorsement on the writ of summons for service outside the jurisdiction of the Court below when the leave granted for service outside the jurisdiction of the Court below was based paramountly on the rules of the Court below, aright, in my opinion.
It is also elucidating to note that in the fairly recent Supreme Court case of Boko v. Nungwa and Ors. (2019) NWLR (pt. (654) 395 at 441 — 446, His Lordship, Peter-Odili, J.S.C., held in the elaborate lead judgment that the Sheriffs and Civil Process Act was not contemplated by the draftsperson to cover the Federal High Court (the Court below) and does not, therefore, apply to service out of jurisdiction of processes on litigants or persons concerned with litigation at the Federal High Court, but that the

domestic rules of the Federal High Court apply for service of any process out of its jurisdiction. See also the fairly recent Supreme Court case of B. L. Lizard Shipping Co. Ltd. v. M. V. “Western Star” and Ors. (2019) 9 NWLR (pt.1678) 489 at 505, accentuating the application of the rules of the Court below for the service of its process outside the jurisdiction of the Court below per the lead judgment prepared by His Lorship, Okoro, J.S.C.
Assuming without agreeing that the provisions of the Sheriffs and Civil Process Act apply to the Court below with respect to the endorsement on the writ of summons before effecting service of it outside the jurisdiction of the Court below, it was the responsibility of the registrar of the Court below to comply with the statutory requirement (Section 97 thereof) whose blunder or mistake or oversight by not complying with it cannot be visited on the 1st respondent. See the cases (supra) on the issue with emphasis on the case of Broad Bank of Nigeria Ltd. v. Alhaji Olayiwola and Anor. (supra).
The Court below was, accordingly, right in its ruling that the writ of summons was valid as a writ of summons under the

undefended list and was properly served on the appellant outside the jurisdiction of the Court below.

In summation, I find the appeal unmeritorious and hereby dismiss it and affirm the decision of the Court below (Saidu, J.) with N500,000 costs against the appellant in favour of the 1st respondent.

I am constrained to state by way of coda (so speak) that the allegation that the learned Judge of the Court below invented some facts in the course of the ruling appealed against without properly challenging the record of the Court below when the record of the Court below, as it stands, is binding on the parties and the Court, is unfortunate and should not have been made casually by learned counsel that prepared the appellant’s brief.
I say no more.

TIJJANI ABUBAKAR, J.C.A.: I read in draft the comprehensive leading Judgment rendered in this appeal by my learned brother Joseph Shagbaor Ikyegh JCA, I am in total agreement with the reasoning and conclusion and adopt the Judgment as my own. I have nothing extra to add.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read before now the draft of the decision which just been

rendered by my learned brother, Joseph Shagbaor Ikyegh, JCA. I am in entire agreement with, and do not desire to add to, the reasoning and conclusion therein contained. I adopt the entire decision as mine.

Appearances:

Mr. W. Anuge For Appellant(s)

Mr. T. Adamolekun with him, Mr. G. Akinde-Peters and Mr. P. Akin-Ogunbiyi for 1st Respondent.

2nd Respondent unrepresented; did not file brief. For Respondent(s)