OLAM NIGERIA PLC. V. NOSA ONAGHINOR
(2011)LCN/4612(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of June, 2011
CA/B/255/2001
RATIO
SERVICE OF COURT PROCESSES: CONSEQUENCE OF FAILING TO SERVE AN OPPOSING PARTY THE WRIT OF SUMMONS
It is trite law that failure to serve a writ of summons is a fundamental defect. It is also the law that notification of an opposing party of the institution of any proceeding other than an application brought ex-parte is a condition precedent to the exercise of the jurisdiction by the court. Sken Consult (Nig.) V Ukey (1981) 1 SC Nwabueze v. Okoye (1988) 4 NWLR (Pt.91) 664. PER GEORGE OLADEINDE SHOREMI, J.C.A.
TECHNICALITIES: ATTITUDE OF THE COURT TOWARDS TECHNICAL JUSTICE
In Bello V. A.G. Oyo State (1986) 5 NWLR (PT.45) 528. Oputa JSC as he then was said. “The picture of law and its technical rules triumphant and justice prostrate may, no doubt, have its admirers. But the spirit of justice does not reside in forms and formalities, nor in technicalities, nor is the trump of the administration of justice to be found in successfully picking one’s way between pitfalls of technicalities.” Also ESO, JSC in State v. Gwonto (1983) I SCNLR 142 said: “The court is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice. PER GEORGE OLADEINDE SHOREMI, J.C.A.
NON-COMPLIANCE WITH THE PROVISION OF SECTION 97 AND 99 0F THE SHERIFF AND CIVIL PROCESS ACT: THE EFFECT OF NON-COMPLIANCE WITH SECTION 97 AND 99 OF THE SHERIFF AND CIVIL PROCESS ACT
On effect of non-compliance with section 97 and 99 of the Sheriff and Civil Process Act, the Supreme Court in the case of ODUA INVESTMENT LTD V. TALABI (1997) 10 NWLR Pt 523 held that where a Defendant is served with a writ of summons in breach of section 97 and 99 of the Sheriff and Civil Process Act, he has either to object to the service by applying to have it set aside and the court exdebito justitiae will accede to the applicant. In UCHADU & ORS V. OGBONI OTHERS (1999) NWLR Pt. 603 337. The Supreme Court is of the view that non compliance will not avail a defendant who appears before 30 days and participate in the proceedings. PER GEORGE OLADEINDE SHOREMI, J.C.A.
SHALL: MEANING OF THE TERM “SHALL” AS CONTAINED IN THE PROVISIONS OF SECTION 97 OF THE SHERIFF AND CIVIL PROCESS ACT
In B.B.N. LTD V. OLAYIWOLA & SONS LTD. (2005) 3 NWLR Part 912 at 434. It was held by the Supreme Court that the term “shall”‘ in the content of the Provisions of section 97 of the Sheriff and Civil Process Act appear to mean or can be understood as concerning the message that a writ of summons to which the provisions of the section relate should be endorsed on in other words have on the face of it the words that such writ shall be served outside jurisdiction of the court. PER GEORGE OLADEINDE SHOREMI, J.C.A.
SERVICE OF COURT PROCESSES: WHETHER SERVICE OF PROCESSES IS A FUNDAMENTAL CONDITION TO BE FULFILLED BEFORE A COURT CAN HAVE COMPETENCE AND EXERCISE JURISDICTION OVER A CASE
In FIRST BANK OF NIG. LTD. v. T.S.A. INDUSTRIES LTD (2010) All WLR Pt 537 633. The Supreme Court is of the opinion that service of Processes is a fundamental condition to be fulfilled before a court can have competence and exercise jurisdiction over a case. Failure to serve a process where it is required to be properly served renders any order made against the defendant not served with process null and void. In F.H.A. V. KALEJAYE (2010) 12 SC Pt 111 Page 1 it was held that before a court can claim jurisdiction in any matter it must amongst others, the case must come by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See TUNK LTD V. ANIGBORO (2001) 1 SC (Pt 1) 45. PER GEORGE OLADEINDE SHOREMI, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
OLAM NIGERIA PLC. Appellant(s)
AND
NOSA ONAGHINOR Respondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of a Benin High Court delivered on 8/3/2001. The Respondent then Plaintiff in the High Court took out a wit against the Appellant then defendant wherein the Respondent claimed as follows:
“WHEREOF the Plaintiff claims against the Defendant as follows:-
(a) A declaration that the Plaintiff is not in anyway owing the Defendant, particularly on his personal Account, Account No. 54666 with the First Bank Plc Agbor Branch transaction in this matter.
(b) An order of perpetual injunction restraining the Defendant, its Agents and privies from harassing or intimidating the Plaintiff or coercing him to sell his house lying and situate and known as No. 25 Okabere Road, Upper Sokponba, Benin City to offset any alleged indebtedness.
(c) An order of perpetual injunction restraining the Defendant its Agents and privies from selling the Plaintiff’s said house or in anyway doing anything whatsoever inconsistent with the rights of the Plaintiff in this matter.
(d) AND any other Reliefs the Honourable court may deem fit to grant in the circumstance of this Suit.
An ex-parte motion was filed seeking the leave of court to serve the Writ of Summon on the (Defendant) Appellant who lived in Lagos State outside the jurisdiction of the trial court. A writ of summons was then filed and served on the Appellant in Lagos State.
The Appellant entered appearance conditionally when the case came up in the trial court the Appellant filed a Motion on Notice that it must be set aside having regard to the provision of the Sheriffs and Civil Procedure Act. The motion was argued by counsel and the trial Judge on 8/3/2001 delivered a Ruling which is contained at pages 14-16 of the Record of Proceedings. For ease of reference I quote the relevant part of the ruling complained of –
“From the foregoing the writ outside jurisdiction is to have the endorsement stated above. On examination of the writ issued by the plaintiff from this writ. It did not comply with this provision of section 97 as that writ did not have the said endorsement. It is trite law that failure to serve a writ of summons is a fundamental defect. It is also the law that notification of an opposing party of the institution of any proceeding other than an application brought ex-parte is a condition precedent to the exercise of the jurisdiction by the court. Sken Consult (Nig.) V Ukey (1981) 1 SC Nwabueze v. Okoye (1988) 4 NWLR (Pt.91) 664.
The purpose of a writ of summons is to notify the opposing party of the intending proceedings standing against him.
In this particular case it is true that although a writ of summons was issued, it was not endorsed in the form that it should be served outside that state. On a broader look at the instant case I hold the view that in complying with that part of section 97 i.e. the endorsement aspect in this case, it is a mere technicality which in the case of Shell Dev. Co. Ltd. V. Otoko (1990) 6 NWLR (Pt.159) 693 should not be allowed to defeat the end of justice. In Bello V. A.G. Oyo State (1986) 5 NWLR (PT.45) 528. Oputa JSC as he then was said.
“The picture of law and its technical rules triumphant and justice prostrate may, no doubt, have its admirers. But the spirit of justice does not reside in forms and formalities, nor in technicalities, nor is the trump of the administration of justice to be found in successfully picking one’s way between pitfalls of technicalities.” Also ESO, JSC in State v. Gwonto (1983) I SCNLR 142 said:
“The court is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.”
In the instant case now that the defendant has appeared in court to defend this suit hereby invoke order 2 rule (1) of our Rules of Court which states;
“Where in beginning or purporting to begin any proceedings or at any state in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or consent or consent or in any other respect the failure may be treated as irregularity and if so treated will not nullify the proceedings, or any document judgment or order therein.”
I therefore hold that the writ of summons is taken as served on the defendants”.
The Appellant being dissatisfied with the ruling filed a notice of appeal containing one ground of appeal which reads thus without any particular:
“The learned trial judge erred in law in deeming the service of the writ of summons on the defendant in this case as proper service”
By a motion dated 27th January 2003 the Appellant was granted leave to file an additional ground of appeal. It reads
ADDITIONAL GROUND OF APPEAL
2. The learned trial Judge misdirected himself in law when he held:
“In the instant case the defendant has appeared in court to defend this suit I hereby invoke order 2 rule (1) of our Rules of Court which states:
“Where in beginning or purporting to begin all proceedings or at any state in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or consent or in any other respect the failure may be treated as irregularity and if so treated will not nullify the proceedings or any document judgment or order therein”.
I therefore hold that the writ of summons is taken as served on the defendants.”
Briefs of argument were filed and exchanged by the Appellant and the Respondent.
When the appeal came up for hearing on 16th March 2011 Mr. Uwhubetine learned counsel for the Appellant identified his brief of argument which is dated 27/1/03 filed on 28/1/03 brief deemed properly filed as served on 21/3/05. He adopted same and relied on it as his argument in favour of the appeal and he urged the court to allow the appeal and strike out the writ of summons.
Mr. Osayonwanbor of learned counsel to the Respondent identified his brief dated 18/3/04 but deemed properly filed on 17/4/08. He adopted and relied on same as his argument that the appeal should be dismissed.
In his brief the Appellant distilled one issue for determination from the two grounds of appeal. It reads I quote-
‘WHETHER IN THE CIRCUMSTANCE OF THIS CASE, THE LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT THE WRIT OF SUMMONS, WHICH WAS NOT ENDORSED IN ACCORDANCE WITH S.97 OF THE SHERIFF & CIWL PROCESS ACT, BE TAKEN AS SERVERED ON THE DEFENDANT?
He argued that it is beyond any dispute that the summons was served on the Appellant outside Edo State at the address endorsed on the writ as “Plot 2 Block K Apapa Oshodi Express Way, Ilasamaja, Lagos State”. He then referred to section 97 of the Sheriff and Civil Process Act Cap 407 Laws of the Federation of Nigeria. He also referred to the findings of the trial Judge at page 15 lines 16 – 18 wherein the learned trial Judge says-
“On examination of the writ issued by the plaintiff from this writ (sic) it did not comply with the provision of section 97 as the writ did not have such endorsement”.
He then argued that the learned trial Judge having made that findings took a very slippery curve in his consideration of the effect of non compliance with section 97 of the Sheriff and Civil Process Act and went off the target when he held:
‘I therefore hold the writ of summons is taken as served on the Defendant.”
Page 15 lines 27 – 28 of the Record.
The Appellant submitted that the learned trial Judge was wrong in that conclusion. He submitted that the cases of SHELL DEV. CO. LTD v. OTOKO (1990) 6 NWLR Pt. 159, 693; BELLO V. A.G. OYO STATE (1986) 5 NWLR Pt 45,528; STATE v. GWONTO (1983) 1 SCNLR 142 relied upon by the trial Judge were not decided on the provision of S. 97 of the Sheriff and Civil Process Act.
He also argued that Order 2 Rule (1) of the High Court (Civil Procedure) Rule of Bendel State 1988 Applicable to Edo State did not cure the non compliance with the Sheriff and Civil Process Act. He argued that it is the National Assembly that has the exclusive powers to make laws regulating service for processes issued out of a state for service in another state of the Federation of Nigeria.
He argued that it is mandatory that every writ issued in a state and meant for service in another state must have the endorsement stipulated. See the case of FIRST BANK OF NIGERIA LTD V. NJOKU (1995) 3 NWLR (Pt 384) 457; NWABUEZE v. OKOYE 1988 4 NWLR Pt.91, 664; N.E.P.A v. ONAH (1997) 1 NWLR Pt 484 680. He urged the court to allow the appeal.
The Respondent is of the view that where a Plaintiff in the course of commencing an action has done all that is required of him in law to commence an action, he can not be held responsible for every other failure attributable to official negligence. He relied on (1959) 4 FSC 27; OBIANWUNA OGBUANYIWA & ORS V. OBI OKUNDO & ORS No.2 1990 4 NWLR 351.
He argued that he sought the leave of court to serve outside jurisdiction and it was granted. He argued that he had complied with fundamental requirement of a writ to be served outside jurisdiction viz – (a) Address of the Defendant where service on him is to be effected out of jurisdiction (b) A period of not less than 30 days to answer to the court (c) Plaintiff must obtain leave of court.
He relied on JADCOM LTD v. OGUNS ELECTRIGALS (2004) 2 NWLR (PT.859) 153 at 171 -172; EZOMO v. OYAKHIRE (1985) 1 NWLR (Pt. 2) 195. He then argued that the Appellant did not take the objection to the service of the writ timeously and therefore waived his right to object to service. He said he knew that other steps were taken after he was served with the writ he relied on JADCOM LTD V. OGUNS ELECTRICALS Supra. He urged the court to dismiss the appeal.
Let me begin the consideration of this appeal by saying that the argument of the Respondent that the Appellant did not object to the writ timeously is baseless. The Appellant did not do more than entering a conditional appearance. This cannot amount to waiver. He objected to the service of the writ at the earliest opportunity. Therefore the argument is of no moment,
The learned trial Judge towards the end of his ruing relied on Order 2 Rule (1) of the Rules of High court of Edo State which states:
“Where in beginning or purporting to begin or at any stage in the course of or in connection with any proceedings, there has been any reason or any thing done or left undone, being a failure to comply with these rules whether in respect of time, place, matter, form or consent or in any other respect, the failure may be treated as irregularity and if so treated will not nullify the proceedings or any document judgment or order thereof”.
The learned trial Judge with respect misapplied the Rules High Court of Edo State. The learned trial Judge did not take cognizance of item 57 of the Exclusive Legislative list of the 2nd Schedule of the 1999 Constitution of the Federal Republic of Nigeria which contains the following:
“Service and execution in a state of the civil and criminal processes, judgment, decrees, orders and other decisions of any court of law outside Nigeria or any court of law in Nigeria other than a court of law Established by the House of Assembly of that State”.
Having said that, section 97 of the Sheriff and Civil Process Act provides as follows:
Every writ of summons for service under this point out of a State or the Capital Territory in which it was issued shall (emphasis mine) in additional to any other endorsement or notice required by the law of such a State or the Capital Territory have endorsed there or a notice to the effect (that is to say) –
“This summons (or as the case may be) is to be served out of the ……,….State or as the case may be………..,.. and in the ……… Slate (or as the case may be”
The endorsement is a pre-condition to clothe the High Court of Jurisdiction to adjudicate on the matter in controversy. Any non-compliance or defeat that goes to the competence or jurisdiction of a court is fatal. It renders the proceeding a nullity. The Defendant in this case is extrinsic to the jurisdiction.
Furthermore where an act is void, waiver does not come in for consideration as the parties can not waive such irregularity.
On effect of non-compliance with section 97 and 99 of the Sheriff and Civil Process Act, the Supreme Court in the case of ODUA INVESTMENT LTD V. TALABI (1997) 10 NWLR Pt 523 held that where a Defendant is served with a writ of summons in breach of section 97 and 99 of the Sheriff and Civil Process Act, he has either to object to the service by applying to have it set aside and the court exdebito justitiae will accede to the applicant.
In UCHADU & ORS V. OGBONI OTHERS (1999) NWLR Pt. 603 337. The Supreme Court is of the view that non compliance will not avail a defendant who appears before 30 days and participate in the proceedings. In the case at hand the Appellant have not by any yardstick participated in the proceedings. In B.B.N. LTD V. OLAYIWOLA & SONS LTD. (2005) 3 NWLR Part 912 at 434. It was held by the Supreme Court that the term “shall”‘ in the content of the Provisions of section 97 of the Sheriff and Civil Process Act appear to mean or can be understood as concerning the message that a writ of summons to which the provisions of the section relate should be endorsed on in other words have on the face of it the words that such writ shall be served outside jurisdiction of the court.
The Respondent argued that the negligence of the Registrar should not be a punishment on the Respondent. I can only agree to this submission if there is any provision in the Rule or Act which provides that in Edo State High Court it is the duty of the Registrar to so endorse. See also N.A.C.B. V O.F. DEVELOPMENT CO. NIG. (2006) NWLR Part 985 323; N.E.P.A. v. ONAH 997 1 SCNJ 220.
In FIRST BANK OF NIG. LTD. v. T.S.A. INDUSTRIES LTD (2010) All WLR Pt 537 633. The Supreme Court is of the opinion that service of Processes is a fundamental condition to be fulfilled before a court can have competence and exercise jurisdiction over a case. Failure to serve a process where it is required to be properly served renders any order made against the defendant not served with process null and void.
In F.H.A. V. KALEJAYE (2010) 12 SC Pt 111 Page 1 it was held that before a court can claim jurisdiction in any matter it must amongst others, the case must come by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See TUNK LTD V. ANIGBORO (2001) 1 SC (Pt 1) 45.
From the consideration above I hold that there is no basis in law for the trial Judge to treat the non-compliance of section 97 of the Sheriff and Civil Process Act as a mere irregularity which was waived.
Non- compliance with section 97 of the Sheriff and Civil Process Act rendered the service of the writ on the Appellant void and a nullity.
It therefore order that the service of the writ in the appeal served on the Appellant is set aside and the appeal therefore succeeds and it is allowed.
I order cost of N30,000 be paid Appellant.
AMIRU SANUSI, J.C.A.: Having perused the lead prepared by my Lord Shoremi, JCA, just rendered, I am at one with him that this appeal has merit and ought to be allowed.
Issue of service of Writ of Summons to an adverse party is very fundamental as it touches on the jurisdiction of a trial court. By the Provisions of Section 97 of Sheriff and Civil Process Act before a writ of summons is served outside the area of jurisdiction of a trial court. Such Writ of Summons must be duly endorsed as below:-
“Thus summons (or as the case may be) is to be served out of the state or as the case may be in the state (or as the case may be)”
The above quoted mode of endorsement must therefore mandatorily feature on any Writ of Summons meant for service out of jurisdiction of a court. To my mind, failure to comply with this condition, as it appeared in the instant case, is fatal and such failure is not a mere irregularity that could be ignored or swept under the carpet. It is also an anomaly that can not be cured or be regarded as mere technicality. It is more than that. In my view it is fatal to the plaintiff’s/respondent’s case, as such defect berefts the trial or lower court of jurisdiction to adjudicate in the matter ab initio.
Thus, for this and the more detailed reasons given in the lead judgment of my learned brother Shoremi, JCA, I too hereby allow the appeal and set aside the purported service of the Writ of Summons. I endorse the order as to costs.
CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.: I read in draft the lead Judgment just delivered by my learned brother G.O. SHOREMI JCA and I adopt His Lordship’s reasoning and conclusion. Consequently, I also allow the appeal and abide by the consequential orders contained in the lead judgment.
Appearances
T. E. Uwhubetine Esq.For Appellant
AND
O. Osayonwanbor Esq., with S. A. Ugah Esq.For Respondent
