SOCIAL DEMOCRATIC PARTY v. JOHN HINGAH BIEM & ORS
(2019)LCN/12812(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/MK/11/2019
RATIO
ACTION: CAUSE OF ACTION
“A cause of action denotes every fact which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the court. See Fadare v Attorney General of Oyo State (1982) 4 SC1. It consists of two elements; (a) the wrongful act of the defendant which gives the plaintiff his cause of action; and
(b) the consequent damage. See Savage v Uwechia (1972) 1 All NLR 251 and Esuwoye v Bosere (2017) 1 NWLR (Pt. 1546) 256.” PER JOSEPH EYO EKANEM, J.C.A.
EVIDENCE: TO PLEAD ORAL HEARING
“…Where the Court in proceeding commenced by originating summons is unable from the deposed facts in the affidavits of the parties to prefer the case of one side to the other, the dispute of facts is substantial. The Court ought, at that stage, to order pleadings for the purpose of oral hearing. See National Bank of Nigeria v Alakija (1978) 9 – 10 SC 59, Anatogu v Anatogu (1997) 9 NWLR (Pt. 519) 49 and Toronto Hospital (Nig) Ltd v Ukpaka (2018) 5 NWLR (Pt. 1613) 426. Where there are documents annexed to the affidavits of the parties which can be effectively used to resolve the seeming conflicts the originating summons can still be used without the need to call oral evidence. See Jev v Iyortyom (2014) 4 NWLR (Pt. 1428) 578.” PER JOSEPH EYO EKANEM, J.C.A.
JURISDICTION: POWER OF THE COURT
“Jurisdiction is the power of a Court to entertain and decide a case formally brought before it. It may be circumscribed by the law establishing the Court or by the provision of a law requiring a thing to be done before the jurisdiction of the Court can be invoked. It has been held that a Court is competent when:
(a) It is properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or another;
(b) the subject – matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal to adjudication. See Madukolu v Nkemdilim (1962) 2 SCNLR 341.” PER JOSEPH EYO EKANEM, J.C.A.
JURISDICTION: CONCURRENT JURISDICTION
“A concurrent writ is a writ which is to be served within and out of the jurisdiction or situs of the Court that issued it. See Zakirai v Muhammed (2017) 17 NWLR (Pt. 1594) 181, 222. There is no doubt that the writ issued in this instance was a concurrent writ. In Offiah v Offiah (2016) LPELR 42431 (CA) Agbo, JCA, in a similar circumstance held that;
“What issued at the instance of the complainant was clearly a concurrent writ of summons and ought to have been so marked by the registry of the trial Court. Section 98 of the Sheriffs and Civil Process Act makes it mandatory that a concurrent writ of summons shall be marked ‘concurrent’. In the instant case there was a clear breach of that section and the breach invalidated the writ that issued”.”PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
SOCIAL DEMOCRATIC PARTY Appellant(s)
AND
1. JOHN HINGAH BIEM
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. DR. STEPHEN TERUNGWA HWANDE Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment):
This appeal which was consolidated with appeal No. CA/MK/15/2019 is against the judgment of the Federal High Court, Makurdi Judicial Division (the lower Court) delivered on 17/1/2019 in Suit No. FHC/MKD/CS/62/2018. In the judgment, the lower Court granted all the reliefs sought by the 1st respondent (qua plaintiff) against the appellant and the 2nd and 3rd respondents (qua 1st defendant, 2nd defendant and 3rd defendant).
The facts of the case leading to this appeal may be summarized as follows:
The 1st respondent is a member of the appellant, a political party. He contested the primary election of the appellant held on 1/10/2018 for the selection of its candidate to contest for the position of Governor of Benue State in the general election scheduled to hold in February, 2019. According to him, he contested against two other candidates and emerged the winner. As a result, the appellant obtained from the 2nd respondent Form CF 001 (Affidavit in support of personal particulars of persons seeking election) and Form EC 4B (ii) (Form for nomination of Governor) both of which he completed and handed over to appellant for submission to the 2nd respondent. He later on heard that his name was substituted with that of the 3rd respondent who did not take part in the primary election.
Aggrieved by the turn of events, 1st respondent took out an originating summons at the lower Court seeking the determination of the following questions:
(1) Whether or not, upon a calm and dispassionate interpretation of Articles 1, 13 (2) (5) 16 (1) and (2) of the Constitution of the Social Democratic Party, Section 87 (1)(2) (3) and (9) of the Electoral Act 2010 (as amended) the 1st Defendant can validly submit or substitute the name of the 3rd Defendant who did not take part in the Direct primaries of the 1st Defendant in an election that was won, as the 1st Defendant?s candidate to contest for the office of the Governor of Benue State in the 2019 General Elections.
(2) Whether or not upon a calm and dispassionate interpretation of Articles 1, 16 (1) and (2), 25 (5) of the Constitution of the Social Democratic Party of Nigeria, as amended in January, 2011 and May, 2012, the 3rd Defendant who did not participate in the Primary Election organized by the 1st Defendant can become nominated as a candidate of the party for election into any position in government.
(3) Whether or not, the 1st Defendant is not bound to follow her constitution in the nomination of a candidate of the party for election into any position in government.
The 1st respondent sought the following reliefs:
(1) A DECLARATION that the plaintiff was duly nominated screened and cleared for participation in the Social Democratic Party primaries for selection of the candidate of the party to contest for the office of the Governor of Benue State in the 2019 General Elections.
(2) A DECLARATION that the 1st Defendant, her officers, Committees and Organs were, and are bound to follow provisions of the Constitution of the Social Democratic Party, by virtue of Articles 1, 25 (5) in nomination of her candidates to contest any government position.
(3) A DECLARATION that the submission of the name of the 3rd Defendant, who did not participate in the primary elections conducted by the 1st Defendant, as the candidate of the party to contest for the office of the Governor of Benue State in the stead of the plaintiff, who won the primaries conducted democratically by Direct Primaries, is a violation of Article 16 (1) and (2) of the Constitution of the Social Democratic Party and the Electoral Act is illegal, null and void and of no legal effect whatsoever.
(4) AN ORDER of the Honourable Court directing the 1st Defendant to withdraw the name of the 3rd Defendant submitted to the 2nd Defendant as the candidate of the 1st Defendant to contest for the office of the Governor of Benue State in the 2019 General Elections.
(5) AN ORDER of the Honourable Court restraining the 2nd Defendant from recognizing the 3rd Defendant as the candidate of the 1st Defendant to contest for the office of the Governor of Benue State in the 2019 General Elections, and if the 3rd Defendant has been already recognized, AN Order directing the 2nd Defendant to strike out the name of the 3rd Defendant from the list of candidates recognized by the 2nd Defendant as duly nominated to contest in the 2019 General Elections.
(6) AN ORDER of the Honourable Court compelling the 1st Defendant to submit the name of the plaintiff to the 2nd Defendant as the validly nominated candidate of the 1st Defendant to contest in the 2019 General Elections for the office of the Governor of Benue State on the platform of the 1st Defendant.
(7) AN ORDER of the Honourable Court compelling the 2nd Defendant to accept the name of the Plaintiff from the 1st Defendant as the validly nominated candidate of the 1st Defendant to contest in the 2019 General Elections for the office of the Governor of Benue State on the platform of the 1st Defendant.
(8) AN ORDER of the Honourable Court restraining the 1st and 2nd Defendants from fielding the 3rd Defendant as the candidate to contest in the 2019 General Elections for the office of the Governor of Benue State on the platform of the 1st Defendant.
(9) AN ORDER of the Honourable Court, restraining the 3rd Defendant from parading himself as the candidate of the 1st Defendant, Social Democratic Party to contest in the 2019 General Elections for the office of the Governor of Benue State on the platform of the 1st Defendant.
(10) The cost of this action.
The originating summons was supported by:
(i) an affidavit of 35 paragraphs with Exhibits JHB-1 to JHB-11 attached;
(ii) a further affidavit of 5 paragraphs filed on 4/12/2018;
(iii) a further affidavit of 5 paragraphs filed on 4/12/2018;
(iv) a further affidavit filed on 13/12/2018;
(v) written addresses filed along with the affidavits; and
(vi) written addresses opposing preliminary objections.
All the affidavits were sworn to by the 1st respondent.
The appellant, in response, filed;
(i) a memorandum of conditional appearance on 10/12/2018;
(ii) a counter – affidavit in opposition to the originating summons deposed to by Dr Salisu Muhammed with Exhibit SDP 1 attached;
(iii) a written address in support of the preliminary objection; and
(iv) written address opposing the originating summons.
The 2nd respondent filed:
(i) a memorandum of conditional appearance;
(ii) a counter ? affidavit of 8 paragraphs;
(iii) written address in support of the preliminary objection; and
(iv) a written address in opposition to the originating summons.
The 3rd respondent filed:
(i) a memorandum of appearance;
(ii) a counter – affidavit of 20 paragraphs with Exhibits 1 – 2 attached; and
(iii) a written address.
After hearing counsel on all sides, the lower Court, as earlier stated, found in favour of the 1st respondent and granted the reliefs sought by him.
Aggrieved by the decision, the appellant filed two notices of appeal to this Court, viz; one filed on 21/1/2019 and the second filed on 30/1/2019. At the hearing of the appeal on 28/2/2019, appellant’s counsel sought the leave of Court to withdraw the notice of appeal filed on 21/1/2019. Counsel for the other parties did not oppose the application. Consequently, the notice of appeal filed on 21/1/2019 is hereby struck out. The appeal shall be heard on the notice of appeal filed on 30/1/2019.
At the hearing of the appeal in 28/2/2019, S.E. Aruwa, Esq. of counsel for the appellant identified, adopted and relied on appellant’s brief filed on 4/2/2019 in urging the Court to allow the appeal and set aside the judgment of the lower Court.
T.O. Aorabee, Esq. Of counsel, for the 1st respondent, identified, adopted and relied on a 1st respondent?s brief filed on 11/2/2019 in urging the Court to dismiss the appeal.
The 2nd and 3rd respondents did not file briefs of argument though they were served with appellant’s brief of argument. Counsel for 2nd respondent filed what he termed as ?2nd respondent position on this appeal?. The process is unknown to the rules of this Court and is accordingly struck out.
In the appellant?s brief of argument, the following issues are formulated for the determination of the appeal:
2.1 WHETHER THE TRIAL COURT HAD JURISDICTION TO HAVE HEARD AND DETERMINED THIS SUIT
(Distilled from ground 1 and 2 of the Notice of Appeal filed on 30th January, 2019).
2.2 WHETHER THE TRIAL COURT WAS RIGHT TO HAVE HEARD AND DETERMINED THIS SUIT SOLELY ON AFFIDAVIT EVIDENCE AND WHETHER THIS SUIT WAS PROPERLY COMMENCED BY ORIGINATING SUMMONS.
(Distilled from ground 3 of the Notice of Appeal filed on 30th January, 2019.
2.3 WHETHER THE LEARNED TRIAL COURT PROPERLY AND ADEQUATELY EVALUATED ALL THE EVIDENCE IN THIS SUIT.
(Distilled from ground 4, 5, 6, 7, 8 and 9 of the Notice of Appeal filed on 30th January, 2019?.
1st respondent’s counsel adopted the issues in his brief of argument. I shall therefore be guided by the issues in the determination of the appeal.
ISSUE 1 Whether the trial Court had jurisdiction to have heard and determined this suit.
Appellant’s counsel noted that the suit was commenced at the lower Court and the originating summons was served on the appellant in Abuja. He conceded that the originating summons was endorsed as required by Section 97 of the Sheriffs and Civil Process Act (SCPA) but contended that it was not marked ‘CONCURRENT’ as required by Section 98 of the SCPA. He referred to the judgment of the trial Court dismissing the objection of the appellant in that regard on the basis that ?out of jurisdiction? means ?outside Nigeria? under the Federal High Court (Civil Procedure) Rules, 2009 and stated that decisions of the Supreme Court on the SCPA do not apply now to Federal High Court. He submitted that the lower Court was in error in relying on the case of Akeredolu V Akinremi (2018) LPELR ? 4406 (SC) to so hold. This, he said, is because that case dealt with failure to obtain leave to serve writ out of jurisdiction and not with Section 98 of the SCPA. He submitted further that the originating process that did not comply with Section 98 of the SCPA was void and that no appearance could be entered in respect thereof. Reliance was placed on Izeze V INEC (2018) 11 NWLR (Pt. 1629) 110 for this submission.
Counsel thereafter referred to Section 285 (9) of the Constitution of Nigeria 1999 (as amended) Fourth Alteration Act. He pointed out that the primary election was held on 3/10/2018 while the suit was filed on 8/11/2018. He contended that the lower Court erred in holding that the cause of action arose on 6/11/2018 or at the most on 3/11/2018. He posited that in the absence of paragraphs 18 and 21 of the 1st respondent?s supporting affidavit, which the Court relied on, deposition as to the dates of the holding and announcement of the result of the primary election on 1/10/2018 and 3/10/2018, respectively, provided the only pointer as to the date of the accrual of the cause of action. He finally submitted that the suit was filed outside 14 days required by the Constitution.
1st respondent’s counsel’s, in response, urged this Court to hold that the SCPA does not apply to processes and proceedings before the Federal High Court. He placed reliance on Joseph Hemen Boko V Hon Benjamin B. Nungwa & Ors (unreported decision of the Supreme Court in Appeal No. SC/732/16 delivered on 13/7/2018 per Peter Odili, JSC (now reported in (2019) 1 NWLR (Pt. 1654) 398. He set out in extenso the opinion of His Lordship and submitted that this Court is bound to follow the decision as it is the latest on the subject under consideration. It was his further submission that the SCPA enacted in 1945 can not regulate the service of process in the Federal High Court in view of Sections 252 and 254 of the Constitution of Nigeria, Sections 9 and 44 of the Federal High Court Act and Order 3 Rules 19 and 20 of the Federal High Court (Civil Procedure) Rules 2013. He restated that the Federal High Court has the whole country as its jurisdiction and so out of jurisdiction in respect of that Court means ‘out of the country’.
Counsel contended that the power vested in the Chief Judge of the Federal High Court in Section 44 (1) of the Federal High Court Act to make rules is not subject to the SCPA. It was his further contention that Section 44 supra and the SCPA are in conflict in respect of the issue of regulation of service of process of the Federal High Court and that the Constitution of Nigeria clearly favours the former. He argued that the doctrine of implied repeal operated against the SCPA in the light of the Federal High Court Act and the Constitution which are later in time.
Counsel set out to distinguish between the cases cited by appellant’s counsel and the instant matter.
He finally submitted on this issue that the suit was filed within time.
RESOLUTION
Jurisdiction is the power of a Court to entertain and decide a case formally brought before it. It may be circumscribed by the law establishing the Court or by the provision of a law requiring a thing to be done before the jurisdiction of the Court can be invoked.
It has been held that a Court is competent when:
(a) It is properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or another;
(b) the subject – matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal to adjudication. See Madukolu v Nkemdilim (1962) 2 SCNLR 341.
It is the contention of appellant that the suit was filed in breach of Section 285 (9) of the Constitution of Nigeria 1999 (as amended). Section 285(9) of the Constitution of Nigeria, 1999 (as amended) by the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017 provides:
Notwithstanding anything to the contrary in this Constitution, every pre ‘ election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.’
To determine if the suit was filed out of the time prescribed above thus rendering the Court incompetent to entertain it, the Court must determine when the cause of action accrued. The lower Court held that the cause of action arose on 6/11/2018 or 3/11/2018 and that the suit filed on 8/11/2018 was not filed out of time (page 573 of the vol. 2 of the record of appeal). A cause of action denotes every fact which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the court. See Fadare v Attorney General of Oyo State (1982) 4 SC1. It consists of two elements;
(a) the wrongful act of the defendant which gives the plaintiff his cause of action; and
(b) the consequent damage. See Savage v Uwechia (1972) 1 All NLR 251 and Esuwoye v Bosere (2017) 1 NWLR (Pt. 1546) 256.
A perusal of the originating summons and the affidavit in support thereof shows that the cause of action of the 1st respondent was the alleged wrongful submission or substitution of the name of the 3rd respondent in the place of his name by appellant to the 2nd respondent. This did not occur on the day the primary election was held and so contrary to the submission of appellant’s counsel the date of the holding of the primary election (1/10/2018) cannot be used to determine when the cause of action accrued or arose. I agree with appellant’s counsel that paragraph 19 of the supporting affidavit is hearsay evidence and cannot be used to determine this point as it does not state the source of the information. However paragraphs 21, 22 and 23 thereof are viable and so can be used to determine the point. From those depositions, it can be safely held that the cause of action arose on 6/11/2018 when the 1st respondent heard about his ‘Substitution’.
In Sifax (Nig) Ltd v Migfo (Nig) Ltd (2018) 9 NWLR (Pt. 1623) 138, 178, it was held that it is well established that the right of action accrues when the person has become aware of the wrong. The origination summons was taken out or filed on 8/11/2018, well within the time prescribed by Section 285 (9) of the Constitution of Nigeria, 1999 (as amended). The trial Court was therefore right in holding that the Originating Summons was not filed out of time.
I now turn my attention to the contention regarding Section 98 of the SCPA. There is no doubt that originating summons was issued out of the Federal High Court, Makurdi Division for service on 3rd respondent within Makurdi and on the appellant and 2nd respondent at Abuja, Federal Capital Territory. Section 98 of the SCPA provides that;
‘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.’
A concurrent writ is a writ which is to be served within and out of the jurisdiction or situs of the Court that issued it. See Zakirai v Muhammed (2017) 17 NWLR (Pt. 1594) 181, 222. There is no doubt that the writ issued in this instance was a concurrent writ. In Offiah v Offiah (2016) LPELR 42431 (CA) Agbo, JCA, in a similar circumstance held that;
“What issued at the instance of the complainant was clearly a concurrent writ of summons and ought to have been so marked by the registry of the trial Court. Section 98 of the Sheriffs and Civil Process Act makes it mandatory that a concurrent writ of summons shall be marked ‘concurrent’. In the instant case there was a clear breach of that section and the breach invalidated the writ that issued”.
The contention of 1st respondent’s counsel was that the SCPA does not apply to the Federal High Court. It must be pointed out that the SCPA is an existing law deemed to have been made by the National Assembly in the light of Section 315 (1) (a) of the Constitution of Nigeria, 1999 (as amended). The National Assembly is empowered to make the law by virtue of Section 4 (1) and (2) and Item 57 of the Exclusive Legislative List, Part 1 of the Second Schedule to the Constitution which empowers the National Assembly to make a law for the, Service and execution in a State of the Civil and Criminal processes, judgments, decrees, orders and other decisions of any Court of law outside Nigeria or any Court of law in Nigeria other than Court of law established by the House of Assembly of that State.
The Federal High Court is one of the Courts which is within the contemplation of the above provision.
Section 254 of the Constitution provides that;
‘Subject to the provisions of any Act of the National Assembly, the Chief Judge of the Federal High Court may make rules for regulating the practice and procedure of the Federal High Court’.
Such rules made by the Chief Judge of the Federal High Court including the Federal High Court (Civil Procedure) Rules are subsidiary legislation and are therefore subject to the provisions of an Act of the National Assembly including the SCPA. Section 44 (1) of the Federal High Court Act does not and can not elevate the Chief Judge of that Court above the National Assembly so that the rules made by him override the provisions of the SCPA. Thus the definition of the phrase ‘out of jurisdiction’ in Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules 2013 to mean ‘Out of the Federal Republic of Nigeria’ can not override the provision of Section 98 of the SCPA. I fail to see any conflict between the Federal High Court Act and the SCPA as canvassed by 1st respondent’s counsel.
It seems to me, on a narrow perusal of Part VII Sections 95, 96, 97 and 98 of the SCPA as well as the long title of that Part that the provisions thereof are meant to govern writs of summons issued out of or requiring the defendant to appear at ‘any Court of a State or the Capital Territory’. It is my humble view that Part VII does not apply to the Federal High Court which is not a Court of a State or the Capital Territory but a Federal Court. However my humble opinion can not stand in the face of decisions of the Supreme Court to the contrary.
In CBN V InterStella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294, 326 ? 327, Ogunbiyi, JSC, stated that,
Section 97 of the Sheriffs and Civil Process Act is applicable to the Federal High Court in general
Be it noted that the CBN case supra was decided in the regime of the Federal High Court (Civil Procedure) Rules, 2009 which puts paid to the position of the lower Court that the cases cited by appellant?s counsel were decided before the 2009 rules came into force.
Other cases to the effect that the SCPA applies to the Federal High Court or where the SCPA was applied to writs issuing from the said Court include Owners of MV ?MSC? Agata V Nestle (Nig) Plc (2014) 1 NWLR (Pt. 1388) 270, 291, Izeze V INEC (2018) 12 NWLR (Pt. 1629) 110, PDP V INEC (2018) 12 NWLR (Pt. 1634) 533 and Owners of the MV ‘Arabella’ V NAIC (2008) 11 NWLR (Pt. 1097) 182, 220 ? 211 where Akintan, JSC, after considering the definition of ‘Court’ in Section 19 (1) of the SCPA opined that,
‘It is not in doubt that the provisions of the said Section 97 of the Act are applicable in all High Courts including the Federal High Court. The said provisions, in my view, have nothing to do with the coverage of the jurisdiction of the Federal High Court, which is nationwide. It is therefore a total misconception to believe that the provisions of the section are inapplicable to the Federal High Court because the jurisdiction of that Court covers the entire nation’.
The implication is that the definition of ?out of jurisdiction? in Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules, 2013 does not and can not affect the applicability of Sections 96, 97, 98 and 99 of the SCPA to the Federal High Court.
1st respondent’s counsel relied on the case of Boko V Nungwa supra in contending that the SCPA does not apply to the Federal High Court. In that case, the Supreme Court was presented with eight issues for the determination of the appeal. In his lead judgment, Okoro, JSC, at page 430 of the NWLR supra, determined the appeal on issue one only; i.e whether this Court had jurisdiction to hear and determine the cross-appeal of the 1st and 2nd respondents after having found that it was filed out of time and without leave of Court. His Lordship answered the question in the negative, set aside the judgment of this Court and remitted the case to this Court for hearing. Three of His Lordship’s learned brothers agreed with him. In his contribution, while agreeing with the lead judgment, Peter Odili, JSC, dealt with other issues including issues 2, 3 and 4 and is so doing held the view that the Federal High Court was not contemplated by the lawmakers when the SCPA was enacted.
It is no doubt the law that a concurring judgment forms part of the lead judgment and is meant to complement the same by way of addition or improvement on the issues involved in the lead judgment. Both the lead judgment and the concurring judgment crystallize into the judgment of an appellate Court. SeeOloruntoba – Oju V Abdul – Raheem (2009) 13 NWLR (Pt. 1157) 153, 143 – 144. However, the Supreme Court being the ultimate or final appellate Court is entitled to resolve only one out of several issues in an appeal where the appeal can be determined by the resolution of that one issue without the need to consider other issues. See Adah V NYSC (2004) 13 NWLR (Pt. 891) 639, 649. In my view, where that is done, as in Boko’s case, the other issues become unnecessary and academic especially so where the case is to be sent back to the lower Court for re?hearing. This applies even to intermediate appellate Courts. See Eagle Super Pack (Nig) Ltd V ACB (2006) 19 NWLR (Pt. 1013) 20, 47 – 48 and Chitra Knitting and Weaving Manufacturing Co. Ltd v Akingbade (2016) 14 NWLR (Pt. 1533) 487, 510 ? 511. It is therefore my view, which I express with much trepidation, that in that circumstance other issues become academic and any comment thereon in a concurring judgment becomes obiter dictum.
It is therefore my position that the comment of Peter – Odili, JSC, in Boko’s case supra relied on by 1st respondent?s counsel offers no help to the 1st respondent.
The case of Akeredolu V Abraham (2018) 10 NWLR (Pt. 1628) 510 (also reported in (2018) LPELR 44067) relied upon by 1st respondent’s counsel is distinguishable from the instant matter as it was decided on the issue of personal or substituted Service of Process of the Federal High Court all over the country.
The long and short of what I have been saying is that the appellant was mandated to comply with Section 98 of the SCPA by marking the Originating Summons with the word ‘concurrent’ which he failed to do. What is the effect of the failure Appellant’s counsel submitted that it renders the process void. There are several decisions of the Supreme Court and this Court that seem to buttress his position. They include Offiah v Offiah supra., PDP V INEC supra, Izeze V INEC supra.
It seems to me that the water-shed case on this point is the case of Odu?a Investment Company Ltd V Talabi (1997) 52 LRCN 2107 which was decided by a full Panel of the Supreme Court. In the lead judgment (with Kutigi, JSC, as he then, was dissenting) Ogundare, JSC, after reviewing all the apparently conflicting decisions on the point, reached the conclusion that there was no conflict in those decisions as they were determined on their peculiar facts. At page 2184 His Lordship concluded as follows:
From all I have been saying my answer to the question set out in this judgment, therefore, is than non – compliance with Section 97 and/or Section 99 of the Sheriffs and Civil Process Act renders the writ and/or service of it voidable and the defendant who complains of such non?compliance is entitled ex debito justitiae to have same set aside, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of.
Where the later is the case, his application to set aside must be refused?.
His Lordship’s conclusion was founded on the reasoning that Sections 97 and 99 of the SCPA LFN 1990 are for the benefit of the defendant alone, rather than that of the general public and so such a defendant could waive it. See page 2183 of the report.
The above decision is applicable to a breach of Section 98 of the SCPA since the marking required by it is for the benefit of the defendant to put him on notice that the writ is from another state.
It is noteworthy that the decision in Odu?a Investment Company Ltd V Talabi Supra is yet to be overruled by another full panel of the Supreme Court. Being the decision of a full panel of the Supreme Court, it supersedes the decisions of non full panels of the Supreme Court which must be understood in its light. See Gadi V Male (2010) 7 NWLR (Pt. 1193) 225, 285. In the recent case of Central Bank of Nigeria V InterStella Communications Ltd supra. 325 ? 326, the Supreme Court held that the breach of such provisions of the SCPA is voidable.
In the instant matter, the appellant filed a notice of conditional appearance and notice of preliminary objection as well as a written address in support of the preliminary objection, all filed on 10/12/2018. (See pages 498, 489 – 491 and 492 – 496 respectively of Vol. 2 of the record). Thereafter on 12/12/2018, the appellant filed a counter affidavit in opposing the originating summons and a written address in opposition to the originating summons. (See pages 516 – 519 and 520 – 25 of the record).
Did the conduct of the appellant summarized above amount to waiver? In the case of Zakirai v Muhammed supra 231 Augie, JSC, stated:
In this case the appellant entered a conditional appearance and also filed a counter – affidavit, which means he waived the irregularity that he complained, and had submitted to the jurisdiction of the Court?.
It should be noted that as stated at page 23, the appellant filed a memorandum of conditional appearance but followed it up with a counter – affidavit in opposition to the originating summons wherein he joined issues with the 1st respondent on the facts. It also appears that the issue of non – compliance with Section 97 of the SCPA was raised by the appellant after he had filed all his necessary and requisite Court process. See page 246 of the record in the concurring judgment of Peter Odili JSC.
In this instance as earlier stated the appellant filed its memorandum of conditional appearance and notice of preliminary objection along with its written address in support thereof before filing its counter ? affidavit joining issues on the facts with the 1st respondent two days later. In PDP v INEC (2018) 12 NWLR (Pt. 1634) 533, 554, Peter – Odili, JSC in his contribution observed and held as follows:
‘The presentation on ground shows that there was a motion challenging the competence of the Suit long before the 2nd and 3rd defendant filed their counter ? affidavit to the originating summons. There was a memorandum of conditional appearance and so the right was not lost in the challenge to the Court’s jurisdiction and this timeously.’
This is the exact situation in this instance. That being so and on the authority of Odu’a Investment Co. Ltd v Talabi supra, the appellant was entitled ex debito justitiae to have the originating summons set aside for Non ? compliance with Section 98 of the SCPA.
On that score alone, I resolve issue 1 in favour of the appellant.
ISSUE 2 – Whether the trial Court was right to have heard and determined this suit solely on affidavit evidence and whether this suit was properly commenced by originating summons.
Appellant’s counsel referred to the various affidavits filed by the parties. He noted that the result of the primary election exhibited by the 1st respondent (Exhibit ‘JHB’ 7) was different from the one exhibited by the appellant (Exhibit ‘SDP1’). It was his argument that the relevant facts and documents were hotly contested and disputed by the parties. It was his contention that the conflicts could only have been resolved by calling oral evidence.
In response, counsel for 1st respondent contended that the specific facts deposed to in the affidavit in support of the originating summons were in the main not countered. In respect of Exhibit JHB – 7 and Exhibit SDP1, he submitted that the lower Court was entitled to compare the signatures on them.
Thus, he concluded, there was no serious conflict of affidavit evidence to warrant the calling of oral evidence.
RESOLUTION
The facility of originating summons is designed for suits in which the facts are not likely to be in dispute and where the evidence is mainly documentary. Where the Court in proceeding commenced by originating summons is unable from the deposed facts in the affidavits of the parties to prefer the case of one side to the other, the dispute of facts is substantial. The Court ought, at that stage, to order pleadings for the purpose of oral hearing. See National Bank of Nigeria v Alakija (1978) 9 ? 10 SC 59, Anatogu v Anatogu (1997) 9 NWLR (Pt. 519) 49 and Toronto Hospital (Nig) Ltd v Ukpaka (2018) 5 NWLR (Pt. 1613) 426. Where there are documents annexed to the affidavits of the parties which can be effectively used to resolve the seeming conflicts the originating summons can still be used without the need to call oral evidence. See Jev v Iyortyom (2014) 4 NWLR (Pt. 1428) 578.
I have read the various affidavit filed by the parties and the documents attached to them. It is clear to me that whatever conflicts there are in the matter could be resolved by reference to those documents without the need to call oral evidence.
Issue 2 is therefore resolved against the appellant.
ISSUE 3 : Whether the trial Court properly and adequately evaluated all the evidence in this suit.
Appellant’s counsel submitted that the lower Court erred in holding that the appellant admitted the specific depositions in 1st respondent’s affidavit. He referred to paragraphs 5, 8, 9, 10, 11 and 12 of the counter – affidavit of the appellant. It was further submitted that the lower Court ought to have read the counter – affidavit communally and not in isolation. He expressed his disagreement with the lower Court in its finding that it could not pick and choose from the contradictory evidence of appellant and 3rd respondent. This, he stated, is because the appellant and 3rd respondent maintained separate defences. He went on to state that there was no gain-saying that 3rd respondent was a member of the appellant.
1st respondent?s counsel urged this Court to hold that the lower Court painstakingly evaluated the evidence place before it and reached the right conclusion.
RESOLUTION
Evaluation of evidence with the attendant duty of ascribing probative value to it is the primary responsibility of a trial Court. An appellate Court will not readily interfere with it unless there is compelling reason to do so. See Ebba V Ogodo (1984) 1 SCNLR 372. Where however evidence is affidavit evidence and documentary in nature, an appellate Court is in as good a position as the trial Court to undertake its own evaluation. See Okoro v Okoro (2018) 16 NWLR (Pt. 1646) 566, 414.
To determine if there is an admission, a Court must consider the totality of the depositions in the affidavits of the parties. See Ngige V Obi (2006) 14 NWLR (Pt. 999) 1, 117 and UBA Plc V Ibachem (Ibafon Chemicals) Ltd (2014) 6 NWLR (Pt. 1402) 125, 154.
Where the deponent makes a general denial and thereafter states his side of the story, contrary to that of his opponent, which he wants the Court to believe, that is sufficient denial. See Nwankwo V Ofomata (2009) 11 NWLR (Pt. 1153) 496, 516.
In the light of the depositions in paragraphs 5, 8, 9, 10, 11 and 12 of the counter – affidavit of the appellant and paragraph 5 of the counter – affidavit of 3rd respondent, I hold that the lower Court was not right in holding that there was an admission by appellant.
It was the case of the 1st respondent that the 3rd respondent was not a member of the appellant in Guma as at the time of close of nomination and membership register. The appellant did not directly answer that fact but rather deposed that the 3rd respondent contested and won its primary election. In paragraph 5 of his counter – affidavit, the 3rd respondent deposed that he is a card carrying member of the appellant. He exhibited his Membership Card and register of members as Exhibits 1 and 2. In the further affidavit in response to the said counter – affidavit, 1st respondent kept a loud silence on the deposition in the counter – affidavit and the exhibits. He is therefore deemed to have admitted the same. See Agbaje V Ibru Sea Food Ltd (1972) 5 SC 50.
Membership of a political party is the internal affair of a political party and is not justiceable. See Ukachukwu V PDP (2014) 17 NWLR (Pt. 1435) 154, Afogo V Nwachi (2017) 11 NWLR (Pt. 1545) 147, Anyanwu V Ogunewe (2014) 8 NWLR (Pt. 1410) 437 and Jev V Iyortyom supra.
It was the case of the 1st respondent that as at 1/10/2018 when the primary election of the appellant was conducted, the 3rd respondent was not screened and cleared to participate in the said election and that his name was not listed among the candidates nor did he participate in the primary election. The 3rd respondent contended that he bought and submitted the expression of interest and nomination forms for the said primary election.
In the affidavit of 1st respondent, it is deposed that the primary election was held on 1/10/2018 and the result was announced on 3/10/2018. (See Par. 9 of the supporting affidavit at page 7 of the record). In paragraph 8 of the counter-affidavit of the appellant, it is deposed that the election took place on 3/10/2018. (See page 517 of the Vol. 2 of the record). The nomination form of the 3rd respondent (Exhibit 6 attached to his counter-affidavit at pages 377 ? 392 of Vol. 1 of the record) was paid for and sworn to on 1/11/2018 at the Federal High Court. His certificate of clearance (to contest the primary election) was issued on 28/9/2018 Exhibit 7 at page 394 of Vol. 1 of the record).
The implication of the narrative above is that the primary election was conducted on 1/10/2018 or 3/10/2018 long before the 3rd respondent swore to his nomination form for that election. In Exhibit 8, attached 3rd respondent?s counter affidavit, viz; Benue State Electoral Committee report signed by the deponent of the appellant’s counter – affidavit, among others, it is stated that the primary election took place on 30/9/2018 and the collation of result for governorship candidates started from 5pm on 30/9/2018 and by 1am of 1/10/2018 some results were collated. See pages 395 – 397 of Vol. 1of the record.
Most revealing is that in paragraph 6 of the report, it is stated that,
Before the meeting we spoke with one governorship aspirant who was unavoidably present and letter (sic) had a meeting with all 3 aspirants present (Underlining mine for emphasis).
The clear meaning of the above is that there were only three aspirants for the governorship primary election. This confirms the position of the 1st respondent that there were only three candidates and the 3rd respondent was not one of them as shown on his Exhibit JHB -7 at page 55 of the record (the state governorship primaries collation result sheet). How then did three aspirants metamorphose to four aspirants including the 3rd respondent in the state collation result sheet attached as Exhibit ?SDP1? to the counter ? affidavit of the appellant at page 519 of Vol. 2 of the record?
It is clear that the 3rd respondent did not contest the primary election of the appellant and did not therefore win it. His certificate of return dated 10/10/2018 pre – dates his expression of interest form to contest the primary election.
Another curious fact in the case of the appellant and 3rd respondent is that Exhibit 10 attached to the counter – affidavit of 3rd respondent (INEC?s affidavit in support of personal particulars of person seeking election to office) at pages 399 – 403 Vol. 1 of the record) is sworn to on 1/11/2018. In other words, it is sworn to on the same date on which the 3rd respondent swore to his nomination form for the primary election which took place on an earlier date. The counter ? affidavit of the appellant and Exhibit SDP1 attached to it are completely unreliable and must be discountenanced. The case of the 1st respondent therefore is unassailable.
The trial Court therefore rightly found in favour of the 1st respondent.
I therefore resolve issue 3 against the appellant.
However, having resolved issue 1 in favour of the appellant on the ground of non ? compliance with Section 98 of the SCPA, I hold that the appeal has merit and it succeeds in part. The judgment of the lower Court is hereby set aside. The originating summons for service on the appellant is hereby set aside.
The parties shall bear the Costs.
JUMMAI HANNATU SANKEY, J.C.A.: I had the advantage of reading before now the draft of the Judgment rendered by my learned brother, Ekanem, J.C.A. My learned lord has commendably resolved the issues of law and facts arising in the Appeal. I agree with his reasoning and conclusions thereon. I will therefore only add a few words in further agreement.
There is no gainsaying the fact that from the Originating Summons taken out by the 1st Respondent, it was issued from the Federal High Court, Makurdi Division at the instance of the Respondent. It was also to be served on the Respondent, whose address for service was within Makurdi, and on the Appellant and 2nd Respondent, whose addresses for service were at Abuja in the Federal Capital Territory. It was therefore a concurrent writ. Sections 97 and 98 of the Sheriffs and Civil Process Act (SPCA) expressly provide as follows:
“97. Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by law of such State or the Capital Territory, have endorsed thereon a notice to the following 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 State (or as the case may be).”
“98. A writ of summons for service out of the State or the Federal 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.”
Thus, a concurrent writ is a writ which is intended to be served on parties who reside both within the situs of the Court which issued same and on parties who reside outside the jurisdiction of the Court. There has been a contention in legal circles as to whether or not these provisions apply to suits emanating from the Federal High Court, since it is considered one Court, and also because of Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules, 2013 on the definition of “outside jurisdiction”.
This however is no longer a recondite point of law as this Court has long since pronounced on this issue in a number of its decisions. See the following decisions on the applicability of the SPCA to suits emanating from the Federal High Court. See CBN V Interstella Communications Ltd (2018) 7 NWLR (Pt. 1618)224, 326-327 per Ogunbiyi, JSC; Izeze V INEC (2018) 12 NWLR (Pt. 1629) 110; PDP V INEC (2018) 12 NWLR (Pt. 1634) 533; Owners of MV “MSC” Agata V Nestle (Nig) Plc (2014) 1 NWLR (Pt. 1388) 270; O’dua Investment Company Ltd V Talabi (1997) 52 LRCN 2107, per-Ogundare, JSC. Indeed, in Owners of the MV “Arabella” V NAIC (2008) 11 NWLR (Pt. 1097) 182, 220-211, the Supreme Court, per Akintan, DSC, in determining the definition of “Court” in Section 19(1) of the SPCA held thus:
“It is not in doubt that the provisions of the said Section 97 of the Act are applicable in all High Courts including the Federal High Court. The said provisions, in my view, have nothing to do with the coverage of jurisdiction of the Federal High Court, which is nation-wide. It is therefore a total misconception to believe that the provisions of the section are inapplicable to the Federal High Court because the jurisdiction of that court covers the entire nation.”
See also O’dua Investment Company Ltd V Talabi (1997) 52 LRCN 2107, per Ogundare, JSC.
It is with the utmost respect that I respectfully agree with and adopt the reasoning in the lead Judgment with regard to the decision of the apex Court in the case of Joseph Hemen Boko V Hon. Benjamin B. Nungwa & Ors (2019) 1 NWLR (Pt. 1654) 398. While giving due regard to the dictum of Peter-Odili, JSC therein which stated that the Federal High Court was not contemplated by the lawmakers when the SCPA was enacted, it is evident from the lead Judgment of the Court delivered by Okoro, JSC and that of the three other Justices of that Court, that the provisions of the SPCA were not directly in issue in that case. Instead, the main issue considered by the Court was whether the Court was vested with jurisdiction to hear and determine the Cross-Appeal, having been filed out of time and without leave.
The Court answered this question in the negative and remitted the case for re-hearing, thereby rendering the other issues raised before it academic. More importantly, since the Supreme Court has not overruled its previous decision issued by a full Panel of the Court inO’dua Investment Company Ltd V Talabi (1997) 52 LRCN 2101, per Ogundare, JSC, the latter decision, as reiterated by other decisions of the Supreme Court referred to above, remains the position of the law on the subject. See Gadi V Male (2010) 7 NWLR (Pt. 1193) 225, 285.
More to the point, in respect of the issue of whether compliance with Section 98 of the SPCA on the marking of the writ as “concurrent” is mandatory and incumbent upon a Plaintiff commencing a suit before the Federal High Court, this Court has unwavering held in several of its decisions that it is. See for instance the case of The Owners of the MV “MSC Agata” & Anor V Nestle Nigeria Plc & Anor (2012) LPELR-9851(CA) 24-25 & 26-27, where this Court, per Ogunwumiju, JCA, held as follows:
“Where there are more than one defendants in an action and one of these resides outside jurisdiction and the other or others reside within jurisdiction, as in this case, the law is settled on what the Plaintiff should do. Section 98 of the Sheriffs and Civil Process Act provides that 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 Capital Territory and shall be marked as concurrent. See Mako V Umoh (2010) 8 NWLR Pt. 1195 pg. 82.
I agree with learned Appellant’s Counsel that failure to comply with the provisions of Order 6 Rule 12 (1) of the Rules and Section 98 of the Sheriffs and Civil Process Act is a fundamental vice which goes to the root of jurisdiction and renders the issuance of such writ void…
Where the issuance of a writ is faulty, by consequence the service of such a defective writ is also faulty and as such the service of the invalid writ is also invalid…
Before a writ can be served on a defendant who resides outside jurisdiction, it must be endorsed and leave must be obtained. Where the originating process is to be endorsed, the service is voidable and can be set aside at the instance of the Defendant served without the process and who has not waived her right. This is without prejudice to the competence of the suit as constituted. See Famfa Oil Ltd V Attorney General of the Federation (2003) 18 NWLR Pt. 852 Pg. 453; Owners of the MV “Arabella” V NAIC supra; Mako V Umoh supra.
Again, in a more recent decision of this Court in Offiah V Offiah (2016) LPELR-42431(CA), Agbo, JCA held thus:
“What issued at the instance of the complainant was clearly a concurrent writ of summons and ought to have been so marked by the registry of the trial Court. Section 98 of the Sheriffs and Civil Process Act makes it mandatory that a concurrent writ of summons shall be marked “concurrent”. In the instant case there was a clear breach of that section and the breach invalidated the writ that issued.”
Thus, where a Plaintiff fails to comply with the condition precedent in Section 98 of the SPCA, it goes to the root of the case and robs the Court of jurisdiction.
This is evidently because the proper issuance of a writ, which is the initiation process of any action, (as well as its proper service thereof), are conditions precedent to the exercise of the Court’s jurisdiction over the subject matter in dispute. See Nwabueze V Obi Okoye (1988) 4 NWLR (Pt. 91) 664. By these decisions, the writ becomes voidable. And as has been decided in the lead Judgment, there are facts on record which show that the Appellant did not take fresh steps in the matter which will amount to a waiver of this irregularity on the Originating Summons.
Thus, in view of the decisions of the Supreme Court on the application of the SPCA to the Federal High Court, as well as the decisions of this Court on the effect of failure to comply with the condition precedent to the issuance of a writ in Section 98 of the SCPA, I am of the view that the wind has been taken out of the sail of the argument canvassed by the 1st Respondent’s Counsel that Order 6 Rule 31 which defines “out of jurisdiction” precludes the application of Sections 96, 97, 98 and 99 of the SCPA to the Federal High Court. I therefore agree with the lead Judgment that by virtue of a combination reading of Sections 315(1) (a) and Section 4(1) & (2) of the 1999 Constitution (as amended), in conjunction with Item 57 of the Exclusive Legislative List, Part 1 of the Second Schedule of the Constitution, the SCPA is an existing Law deemed to have been made by the National Assembly for the service and execution of Court processes, etc., emanating from the Federal High Court and other Courts other than State High Courts. Thus, while acknowledging that the Federal High Court (Civil Procedure) Rules, 2009 (regulating the practice and procedure of the Federal High Court) was made by the Chief Judge of that Court in pursuance of his powers under Section 254 of the Constitution in that regard, it is a subsidiary legislation and so subject to the provisions of the SPCA, being an Act of the National Assembly. Consequently, Sections 97 and 98 of the SCPA must take precedence over Order 6 Rule 31 of the Federal High Court Rules which defines “out of jurisdiction” to mean “out of the Federal Republic of Nigeria”.
Consequently, it is for this reason, and for the more detailed reasons advanced in the lead Judgment, that I also find that the Appellant was entitled to have the Originating Summons set aside for non-compliance with Section 98 of the SCPA. As a result, I find merit in the Appeal and same is allowed in part. I abide by the consequential orders made in the lead Judgment, including the order as to costs.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a draft copy of the Judgment just delivered by my Learned Brother, Joseph Eyo Ekanem, JCA. I agree with the reasoning and conclusions. I will only make few comments in support.
Upon being served with the originating summons process, the Appellant herein had entered a Conditional Appearance and filed a Notice of Preliminary Objection challenging the jurisdiction of the lower Court on the ground that the Originating summons which was served on the Appellant in Abuja was not endorsed in compliance with the provisions of Section 97 and was not marked concurrent in compliance with the provisions of Section 98 of the Sheriff and Civil Process Act, 2004. The Appellant nonetheless conceded in its Brief that, although the originating summons was properly endorsed as provided in Section 97, it was not marked concurrent as required by Section 98 thereof. The lower Court had overruled their objection.
The provisions of Sections 97, 98 and 99 of the Sheriff and Civil Process Act have been subject matter of a number of judicial pronouncements, as eloquently discussed in the lead Judgment. It is settled that a valid writ of summons ought to comply with the relevant Rules of Court, and, where it is issued for service out of jurisdiction, it must also comply with the provisions of Sections 97, 98 and 99 of the Sheriff and Civil Process Act. Where the originating process has been issued for service out of jurisdiction without the mandatory endorsement demanded by Section 97, the originating process was held to be void inIzeze v INEC (2018) LPELR-44284(SC). This has also been held to be the case where there is non-compliance with the provisions of Section 98.
In The Owners of the MV “MSC Agata” Anor v Nestle Nigeria Plc & Anor (2012) LPELR-9851(CA), this Court, per Ogunwumiju, JCA said, pages 13 ? 14 of the E-Report:
“Where there are more than one defendants (sic) in an action and one of these resides outside jurisdiction and the Other or others reside within jurisdiction, as is in this case, the law is settled on what the Plaintiff should do. Section 98 Of the Sheriffs and Civil Process Act provides that 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 Capital Territory and shall be marked as concurrent. See Mako v. Umoh (2010) 8 NWLR Pt. 1195 Pg. 82.
I agree with learned Appellants’ counsel that failure to comply with the provisions of Order 6 Rule 12 (1) of the Rules and Section 98 of the Sheriffs and Civil processes Act is a fundamental vice which goes to the issue of jurisdiction and renders the issuance of such writ void.”
See also Offiah v Offiah (2016) LPELR-42431(CA) where this Court, per Agbo, JCA held that Section 98 of the Sheriffs and Civil Process Act makes it mandatory that a concurrent writ of summons shall be marked concurrent and that breach of that Section invalidated the writ that issued.
My learned Brother had relied on Odu’a Investment Company Ltd v Talabi (1997) LPELR-2232(SC) in which Sections 97 and 99 of the Sheriff and Civil Process Act were considered by a full panel of the Apex Court. The Supreme Court held therein that non compliance with these provisions rendered the writ voidable. It is held that where the writ and or service of it is voidable, the defendant who complains of such non-compliance before he takes any fresh step in the matter, is entitled ex debito justitiae to have the irregularity set aside. Where he has taken fresh steps in the matter, he is taken to have waived his rights to raise the complaint; Ariori v. Elemo (1983) I SCNLR 1; Odu’a Investment Co. Ltd v. Talabi(supra) at pages 82 ? 83 of E-Report.
It is important to note that although the decision in Odu’a Investment Company Ltd v Talabi (supra) was on non compliance with Sections 97 and 99, without specifically mentioning Section 98, both Sections 97 and 98 are focused on endorsements on a writ for service out of jurisdiction. Nevertheless, a defendant who plans to challenge the competence of an originating process or the competence of its service ought to take timely steps that unmistakably demonstrate his intention. The Supreme Court, per Rhodes Vivour, JSC in PDP v. INEC & Ors (2018) LPELR- 44373(SC) in which non compliance with the provisions of Section 97 was under consideration, had explained that a conditional appearance is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction. The Noble Lord further explained, at pages 13 ? 14 of the E-Report:
“‘When an originating process is served on the defendant and he has an objection to it, he is expected to either-
(a) enter an appearance on protest, or
(b) enter a conditional appearance, and
(c) file a Notice Motion asking the Court to set aside the purported writ and service of same on the ground of originating process and service being invalid.
If the defendant does not follow the above procedure he cannot question the originating process or service on appeal.”
The facts of the instant appeal reveal that the Appellant had acted timeously in challenging the competence of the originating summons, which had not complied with the provisions of Section 98. When an act is void, however, there can be no consideration of a waiver. Once there is a fundamental defect in the originating process, the jurisdiction of the Court to entertain the matter is impacted; Madukolu v Nkemdilim (1962) 2 SCNLR 341; Tukur v The Government of Taraba State (1997) LPELR-3273(SC). Parties cannot consent to or waive a void act;Adesola v Abidoye (1999) LPELR-153(SC); Zakirai v Muhammad (2017) LPELR 42349(SC). The only remedy would be for the originating process to be set aside; Adetayo v Ademola (2010) LPELR-155(SC). The Appellant was therefore entitled ex debito justitiae to have the originating summons set aside for non-compliance with Section 98 of the Sheriff and Civil Process Act.
For these reasons and for the more comprehensive reasons given in the lead Judgment, I also allow this appeal in part and abide by the orders made by my learned Brother.
Appearances:
S.E. Aruwa, Esq.For Appellant(s)
I.O. Aorabee, Esq., T.D. Pepe, Esq., K.C. Vernimber, Esq. and K.K. Lorzenda, Esq. for 1st Respondent.
Audu Anuga, Esq. with him, Terlumun Tombowua, Esq. and Terhemba Gbashima, Esq. for 3rd RespondentFor Respondent(s)
