POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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6 NWLR (PT. 710) 742
GEORGE ADESOLA OGUNTADE, JCA
SULEIMAN GALADIMA, JCA
AMIRU SANUSI, JCA
BROAD BANK OF NIGERIA LTD.
Kunle Ogunba with N. O. Agwoloun – for appellant/cross respondent
Ben Ibeke – for respondents/cross appellants
APPEAL – Formulation of issues – need for the number of issues for determination not to exceed the number of Grounds of Appeal.
LEGAL PRACTITIONER – need to avoid misleading court.
PRACTICE AND PROCEDURE – Non-compliance with Sections 97 and 99 of the Sheriff and Civil Process Act – effect.
PRACTICE AND PROCEDURE – Rules of Court – applicable rules to an action – how determined.
PRACTICE AND PROCEDURE – Service of process – defect in relation to – effect.
PRACTICE AND PROCEDURE – Writ of Summons – failure to endorse as required by section 97 of the Sheriffs and Civil Processes Act – effect of.
AMIRU SANUSI, J.C.A. (Delivering the leading judgment)
The Appellant is a Bank registered and licensed by the Central Bank of Nigeria and is embarking on its Banking Business with its head office situate at Alpha House, 166 Obafemi Awolowo Way, Ikeja, Lagos and has branches throughout the Country. The 1st Respondent as 1st Defendant in the lower court is a registered company with its head office situate at No. 33, Ajegunle Street, Oshogbo in Osun State of Nigeria and has been engaged in business of plastic manufacturing. The 2nd Respondent as 2nd defendant at the lower court is the chairman and one of the signatories to the 1st Respondent’s/Defendant’s account with the appellant bank. On 4th of January 1996, the Appellant filed and issued writ of Summons and statement of claim in which it claimed against the two Respondents/Cross-Appellants the following:-
(a) The sum of N666,907:36k (six hundred and sixty-six thousand nine hundred and seven Naira, thirty six kobo) being the principal sum plus accrued interests on a granted overdraft facility as at the 28th day of November 1995.
(b) Interest on the said sum at the rate of 30% per annum or such other rate as the court may allow from 28th November 1995 till judgment and thereafter at the rate of 6% per annum until eventually liquidated.”
On the same 4th January 1996, the appellant also filed an exparte application before Lagos High Court and sought the under-mentioned orders, namely,
(i) An order granting leave to the plaintiff/applicant to issue and serve the Writ of Summons, Statement of claim and other processes in this suit on the defendants at their addresses at 33 Ajegunle Street, P.O. Box 1200 Oshogbo, Osun State, Nigeria outside the jurisdiction of this Honourable Court.
(ii) An order deeming the Writ of Summons, Statement of claim and all other processes already issued in this suit as having been properly issued.
The exparte application was heard on 19th January 1996 wherein both prayers sought were granted and the Respondents/Defendants were given 30 days within which to enter appearance after being duly served. After several unsuccessful attempts to serve the Respondents, the court bailiff was later able to serve them with the court processes on 5th February 1996. On 26th February 1996 the Respondents through their counsel filed Notice of Preliminary Objection seeking the court to set aside the issuance and service of the Writ of Summons and Statement of claim and also to strike out the suit. For some reasons the Preliminary Objection could not be taken until the 19th November 1997. On that day, the trial judge (Adeyinka J.) after duly hearing both sides delivered a considered ruling upholding the objection and ordered as follows:-
(1) That the Rule applicable to the application was 1972 Rules of Court (old Rules);
(2) That the grant of leave (to issue a Writ for service out of jurisdiction) can be obtained before or after the filing of the writ provided it was obtained before the service on the Defendant;
(3) Once the Defendant out of jurisdiction is given 30 days to enter appearance, it does not matter how many days is specified on the writ,
(4) That the writ not having been endorsed for service out of jurisdiction pursuant to Section 97 of Sherriff and Civil Process Act is competent.”
The trial court consequently struck out the suit. The Appellant became dissatisfied and aggrieved by the ruling of the trial court on the preliminary objection and thereby appealed to this court. In doing so, it filed two grounds of appeal. Similarly the Respondents/Defendants also became dissatisfied with the ruling of the lower court. They as such cross appealed to this court on 20/3/1998 with leave of this court which deemed their notice of cross-appeal as properly filed on 27/4/98. The Notice of Cross-Appeal also contained two grounds. I shall reproduce the grounds of appeal and cross-appeal below without their particulars for ease of reference. They read as below. The grounds of appeal contained in the Notice of appeal are:-
(i) The learned trial judge erred in law when he held that the applicable rules of Court is the 1972 (Civil Procedure) Rules as against the new (Civil Procedure) Rules, 1994.
(ii) ERROR IN LAW
The learned trial judge erred in law when he held that “The endorsement of the Writ is a mandatory provision irrespective of whose duty it is to endorse the writ … this is incompetent”.
The grounds of cross-appeal filed by the cross-appellants are thus:-
(1) The learned trial judge erred in law and thereby came to a wrong conclusion when he held as follows:-
“I refer to the first ground and hold that the grant of leave being at the discretion of the court can be obtained before the filing of the writ provided it was obtained before the service on the defendants. The court order of 26th January 1996 granting leave to issue the writ of Summons out side the jurisdiction is valid”.
(2) The learned trial judge erred in law and thereby came to a wrong conclusion when he held as follows:-
I refer to the 3rd ground and to Section 99 S&C Pr. Act and hold that what matters is the Defendant outside the jurisdiction is given 30 days. The Court Order of 26th February 1996 that “the defendants have 30 days to enter appearance after service” which accompanied the writ of summons complies with Section 99 of the Act even though the eight days in the writ was not amended to read 30days. The defendants cannot say that when served and having read the court order, they were not given 30 days”. The Appellant formulated three issues for determination in this appeal which read thus:-
(a) Whether the learned trial judge was right to hold that the applicable rules of court is the 1972 (Civil Procedure) Rules as against the new Civil Procedure) Rules 1994.
(b) Whether it is the duty of the plaintiff to endorse the writ for service outside jurisdiction and irrespective of whether the answer is in the negative or positive, whether the non performance of this duty will affect the validity of the writ itself or the service of same?
(c) Whether the striking out of a suit or event the service of any process therein for procedural irregularity is not an administration of technical justice frowned against the contemporary judicial authorities.
As I said earlier, the notice of appeal filed by the appellant’s counsel contained only two grounds of appeal which are in fact reproduced above. But he identified three issues for determination in this appeal from the two grounds of appeal. It is improper for an appellant to formulate issues for determination more than the number of grounds of appeal. See the cases of Madagwa v. State (1988) 3 NWLR (Pt. 92) 60. Leedo Presidential Hotel Ltd. v. Bank of the North Ltd (1993) 1 NWLR (pt. 269) 334; Agbetobe v. LSEC (1991) 4 NWLR (Pt. 188) 664, Igboidu v. Igboidu (1999) 1 NWLR (Pt. 585) 27. It is trite law also that each issue for determination must relate or flow from a particular ground or grounds of appeal. See also the cases of Urhobo & Ors. v. Maj. Gen. B.I. Oferi (1999) 2 NWLR (Pt. 589) 147 at 156; NWLR (Pt. 125) 188. Oyinda v. Ajembe (1991) 4 NWLR (Pt. 184) 203. A close look at the three issues formulated by the appellant one would be left in no doubt that only the first and 2nd issues are related or linked to the two grounds of appeal. The 3rd issue is not related to or has not been linked to any of the two grounds of appeal filed by the Appellant. I therefore hold that the 3rd issue is incompetent. It ought to be struck out and I do same accordingly. I also shall discontinue all arguments advanced on it. See Okoye v. Nigeria Construction & Furniture Co. (1991) 6 NWLR (Pt. 199) 501; West Africa Ltd. v. Nig. Maritime Services Ltd (1962) 1 ANLR 605.
On the other hand the learned counsel for the Respondents/Cross appellants identified two issues for determination in the appeal. These issues are:-
(i) Whether the learned trial judge was right in holding that the High Court of Lagos State (Civil Procedure) Rules of 1972 was applicable for the purpose of determining whether the writ issued in 1996 was validly issued.
(ii) Whether the learned trial judge was right in holding that the endorsement of a writ of service out of jurisdiction is mandatory and that the effect of noncompliance with Section 97 of the Sheriffs and Civil Process Act is that the Writ is incompetent and in striking out the same?
The two surviving issues for determination formulated by the Appellant’s counsel are very much identical with the issues the Respondent’s counsel formulated for determination. I shall therefore in dealing with this appeal be guided by the issues formulated by the Appellants counsel which I set out hitherto and adopt them. While doing so, I will deal with them serially
On the 1st issue for determination, the learned counsel for the appellant submitted that as at 19/11/97 when the Preliminary objection was argued the Lagos State (Civil Procedure) Rule of 1972 had been repealed and replaced by the Lagos State (Civil Procedure) Rules of 1994 which came into operation on 2nd September 1996 by virtue of Lagos State Legal Notice No. 34 of 1996. He argued that by virtue of Order 1 Rule 1 of the 1994 Rules (hereinafter referred to as “The new rules”) the ‘new rules’ shall apply to all proceedings taken on or after the commencement date in all proceedings taken on or after the commencement date in all civil matters pending but not part heard on that date. He said the action being a civil matter which was not part heard should be governed by the new rules. He said the suit not being part heard is a fresh one as only ex parte application was taken and the preliminary objection and no evidence was taken at all in the suit. He argued that the phrase “part heard,” should be given its plain and ordinary meaning. He cited Kotoye v. Saraki (1993) 7 NWLR (Pt. 357) 414 at 443 para. A-C and at 469 paras. C-F. The learned counsel to the Appellant also referred us to Order 5 Rule 1 of the new rule which reads thus:-
“Where in beginning or purporting to begin any proceedings at any stage in the course of or in connection with any proceedings, there has by any 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 content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document judgment or order therein.”
The learned counsel for the appellant to buttress his submission cited similar rules in other jurisdictions such as order 2 r. 1 of High Court of Rivers State (Civil Procedure) Rules of 1987 and the case of Stech Bell (Nig) Ltd v. Government of Cross River State (1996) 3 NWLR (Pt. 438) 571 where the rule under reference was discussed by this court even though the said rule slightly differs with that in ‘the new rule’ applicable in Lagos in that in the River State’s Rules it is provided that “the failure may be treated as an irregularity and will not nullify the proceedings” as against the new Lagos Rules which used the sentence “the failure shall be treated as an irregularity and shall not nullify the proceedings….” (italic mine). He finally submitted that in the instant case the rule has mandatory effect and the court has no discretion as is the case in the rules applicable in other jurisdiction such as Rivers and Cross River States. He argued that if a statute provides that a thing “shall” be done then the natural and proper meaning is that a preemptory mandate is enjoined: See Achineku v. Ishagba (1988) 4 NWLR (Pt. 89) 411 at 420 para B-D per Maidama JCA (as he then was and of blessed memory). While urging us to hold that the new rules apply to this suit the learned counsel submitted that perhaps it was because of this duty that the learned trial judge held that the old rules of 1972 was applicable and not the new rules. He concluded that there was no injustice occasioned to the defendants/respondents/cross appellants by the aforesaid non-endorsement. Replying to the Appellants counsel’s submissions, the Respondent’s/Cross-Appellants counsel drew our attention to the fact that the action was filed on 4/1/96 and the notice of Preliminary Objection filed on 26/2/96 was first fixed for hearing for 1/4/96 but was ultimately heard on 19/11/97 i.e. after the new rules have come into operation. He submitted that the provisions of Order 1 Rule 5 of the new rules does not apply to the proceedings taken out by the filing and issuance of the writ of summons in this case on the 4th January 1996. He cited Mundy v. Butterley Co. Ltd. (1932) Ch. 227 at 229 where Maugham J. stated thus:
“the word “proceedings” being one which certainly does suggest something in the nature of a formal step, either and application to the court…..or at least a step taken by a litigant as required by the rules….”
To the learned counsel for the Respondents anything that precedes the final judgment or order is a proceedings in the action. See Blake v. Summers by (1889) WN 39. He then argued that the new rules do not apply to the proceedings of the 4th of January 1996 which predates the commencement of the new rules i.e. 2nd September 1996, instead, it is the old rules that should govern the proceedings of 4/1/96. The learned Respondent’s counsel referred us to Order 2 Rules 4 of 1972 Rule (old rules) which reads:-
“Subject to the provisions of Part VII of the Sherrifs and Civil Process Act no writ of summons for service out of the jurisdiction or of which notice is to be given out of the jurisdiction, shall be issued without the leave of the court or a judge in chambers”.
He then submitted that the learned trial judge was right in holding that the above provision of the old Rule was applicable for the purpose of determining whether or not the Writ of Summons issued on 4/1/96 was validly issued since I was the old rules that govern the issuance of the said writ as at the said date. The learned counsel concluded that the proceedings of 19/11/97 when the Preliminary Objection was taken were governed by the new rules which were then in force but he argued that the courts reference to the old rules was in relation to the evaluation and determination of the status and validity of the writ when it was issued and the proceedings thereon when it was issued on 4/1/96 prior to the commencement of the new Rules.
In his response to the Appellant’s counsel’s submission on order 5 Rules 1 of the new Rules the respondent’s counsel argued that the non-compliance referred to in that provision relates to non-compliance to the said rules (i.e. 1994 rules or the new rules) and does not cover or apply to the instant case as in this case, the non-compliance is with the old rules and not with the new rules and also the proceedings challenged by the Notice of Preliminary Objection was the proceedings relating to the issuance of Writ of Summons on 4/1/96 under the old rules.
The learned counsel of Respondents further submitted that even if the new Rules apply and such non-compliance is regarded as an irregularity, the new rules provide by its order 5 rr 1 (2) and 2(1) that in such circumstance the writ of summons is not void but could still be set aside for irregularity on the application of the defendant. He said though not conceding that the new rules apply to this case, in any event he has also complied with order 5, rr 1 and 2 for the writ to be set aside for irregularity.
In Reply Brief to the Respondents/Cross-appellant’s Brief of arguments which was filed by the Appellant’s counsel on 6/12/99, the learned appellant’s counsel referred us to the case of Munday v. Butterley (supra) and submitted that the pronouncement allegedly made in that case by Maugly J at page 229 could not be found there. I have studied the case cited and could not also trace where the learned trial judge made such remarks quoted above. Learned counsel should be cautious and should always endeavour to see that correct cases are cited and remarks made by learned justices they refer to are correctly quoted to avoid misleading the courts and their colleagues on the other side. The learned counsel argued that writ of Summons of 4/1/96 ca not be proceedings within the meaning of order 1 r 1 of the new rule. On the applicability of the new rules (i.e. Order 5) the learned counsel argued that the trial judge refused to examine the new rules and that if he had done so he would have come to a different conclusion. He concluded that such refusal to consider the new rules by the trial judge led him to strike out the writ of summons.
I think it is important to bear in mind that the gravamen of the preliminary objection which led the trial court to deliver the ruling appealed against is the competence or validity of the writ of summons issued on the 4th of January 1996. There is no gainsaying that the competence of the suit is hinged on the validity of the Writ of Summons. It follows therefore that if the writ of summons has not been validly issued then it can be said that no proper action has been commenced. This is because a writ of summons being an originating process must be properly and validly issued. If it is defective or there is substantial or serious defect in its issuance the proceedings therein will affect the jurisdiction or competence of the court and such can not be treated as mere irregularity. See Nwabueze v. Obi-Okoye (1988) 19 (Pt. III) NSCC 53 at 92;
The important issue to advert our minds to is, was, the Writ of Summons issued on 4/1/96 validly issued as at that day? and How do we determine its validity or otherwise? Certainly as at 4/1/96 when the said writ was issued the law applicable is the old rule i.e. the Lagos State Civil/Procedure Rules of 1972 since the new Rule i.e. Lagos State Civil/Procedure Rules of 1994 had not come into operation then. The said writ must therefore comply with the old rule in order to be validly issued. The learned trial judge when taking the preliminary objection on 19th November 1996 was considering a challenge on the validly of a writ issued on 4/1/96 which is obviously governed by the provisions of the old rule of 1972 and not the new rules because as at the time the writ was issued the new rules were not in existence at all. The learned trial judge was urged in the objection to, inter alia, set aside the writ of summons because no leave was sought and obtained before the said writ was issued out side the jurisdiction of the Lagos State High Court as required by Order 2 Rule 4 of High Court (Civil/Procedure) Rules of 1972. He was not called upon to consider whether the writ was validly issued under the new rules at all. It should be emphasized that the crux of the matter was the validity of the issuance of the writ of summons as at 4th January 1996 and as at the day the rules applicable or governing such exercise were the old rules. The learned trial judge was therefore right in holding that the applicable rules of court is the 1972 Lagos State (Civil Procedure) Rules. The 1st issue is therefore resolved against the Appellant/Respondent.
The second issue for determination in this appeal is whether it is the duty of the Plaintiff/Appellant to endorse the writ of summons for service outside jurisdiction and irrespective of whether is in the negative or positive whether the non-performance of this duty will affect the validity of the writ itself or the service of same? The learned counsel for the Appellant submitted that section 97 of Sherriff and Civil Process Act Cap 407 laws of the Federation of Nigeria of 1990 read with Order 3 Rule 5 of Lagos State (Civil Procedure) Rules of 1994 should be endorsed by the Registrar of the court and not by the plaintiff. He conceded that the writ in this suit was never endorsed by the registrar of the lower court but instead the latter merely sent a covering letter addressed to the deputy Sherriff, High Court of Justice Oshogbo. He argued that since it was not the plaintiff’s duty to endorse the writ but that of the Registrar as stipulated by the provisions of laws cited above, it would be wrong and unfair to punish the plaintiff for the wrong done by the Registrar. He further argued that some acts or omissions committed indirectly by parties are sometimes excusable as for example, courts generally are at great pains to visit the sins of legal practitioners, on their clients. He referred to the case of Eleja v. Bamgodi (1994) 3 NWLR (Pt. 334) 534. He further argued that the non-endorsement of the writ by the Registrar did not occasion any injustice on any of the parties. See Ani v. Nna (1996) 4 NWLR (pt. 440) 10 at 20. He argued further that the aim of service is to give notice to the other party on whom service is made so that he may be aware of and be able to appear in court. See Odutola v. Kayode (1994) 2 NWLR (Pt. 324) 1 SC; United Nigeria Press Ltd. v. Adebanjo (1969) 1 ANLR 431.
Responding to the appellant’s counsel’s submission on this issue, the learned counsel for the two Respondents/Cross-Appellants submitted that the writ was issued from Lagos High Court for service in Oshogbo, Osun State. By virtue of the provisions of Section 97 of Sherriff and Civil/Process Act it had to be endorsed but it was not. He argued that the provision of the Act is mandatory since it used the word “shall”. He said if a statute provides that a thing “shall” be done then such thing must be done. See Achineku v. Ishagba (1988) 4 NWLR (pt. 89) 411 at 420; Modelu vs. Fed. Comm. For Works (1976) 3 SC 41 at 42. The learned counsel further submitted that it is the plaintiff and not the court Registrar who has the duty to endorse his writ accordingly under the Act. He referred to a book called “Nwadialo, Civil/Procedure by Nigeria” page 185 para 185. He said in any event even if it is the duty of Court Registrar to endorse the writ, the learned trial judge is still correct in holding that the endorsement of the writ is mandatory.
In reply to the Respondent’s counsel’s submission the learned counsel to the Appellant drew distinction between indorsement and “endorsement” in relation to his reference to the book he referred us to. He said while the former relates to indorsement of the claim by the plaintiff or his counsel on every writ of summons before it is issued, the latter relates to endorsement on writ by the registrar on writ meant to be served out of the jurisdiction of the court. See orders 2 r 1 and order 3 r 1 of the old rule (1972) and Order 3 r 1 and order 3 r 5 of the new Rule (1994) Rules. He also argued that since what the learned trial judge found as faulty was the service and not the issuance of writ itself what he ought to have done was to set aside the service as against the issuance of the writ itself and even then he could not have even set aside the service in view of the provisions of Order 5 of the new rules.
In dealing with this issue it is apposite to refer to Section 97 of the Sheriffs and Civil Process Act Cap. 407 LFN. The provisions read thus:-
“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 the 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) and in the …..state (or as the case may be)’.
It is clear that the writ was to be served in Oshogbo which is outside the jurisdiction of the trial court. It is not in dispute that the writ was really not endorsed. I think the most important thing is the effect of non endorsement of the writ and not whose duty it was to endorse same. In other words is the non endorsement of the writ curable. The learned trial judge in his ruling had this to say.
“The endorsement of the writ is a mandatory provisions irrespective of whose duty it is to endorse the writ in view of the non-endorsement of the writ pursuant to section 97 of Sherriff and Civil Process Act, this writ is incompetent”.
It is trite law that court officials and indeed all parties to a suit are bound to observe the rules of the court. See CCB (Nig) Plc v. AG Anambra State (1992) 8 NWLR (Pt. 261) 528 at 561. Similarly where provision of a statute provides for a particular method a particular act or duty should be performed that method and no other one must be adopted. See CCB v. case (supra). In this instant case the Sheriff and Civil Process Act has specified regulations on service and appearance and as such where these regulations were not complied with or observed such constitutes fundamental defect touching on question of competence and jurisdiction of the court. In Sken Consults Nigeria Ltd. v. Ukey (1981) Vol. 12 NSCC 1, Nnamani JSC stated as follows at page 11 to 12.
“The learned counsel for the respondent in the course of his arguments before us conceded that there had been no compliance with Section 99 of the Sheriffs and Civil Process Act but has asked us to regard it as an irregularity due to administrative problems of the High Court Registry. I am of the contrary view and I think that all the breaches in the instant case of the regulations relating to service and appearance are fundamental defects which go to the question of the competence and the jurisdiction of the court”.
The Supreme Court later put it in a more succinct way when it held in the case of Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 108 at 250 when it categorically stated that any defect in the service of a writ (i.e non-compliance with Section 97, 98 and/or 99 of the Sheriffs and Civil Process Act renders such writ voidable.
Also the Supreme Court in the recent case of Odu’a Investment v. Talabi (1997)10 NWLR (Pt. 523) 1 after reviewing all the cases cited above including Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195; Nwabueze v. Okeke (1988) 4 NWLR (Pt. 91) 664 and NEPA v. Onah (1997) 1 NWLR (Pt. 484) 680 had this to say at p. 52 (Per Ogundare JSC).
“From all I have been saying, my answer to the question set out in this judgment, therefore, is that non-compliance with Section 97 and/or Section 99 of the Sheriffs and Civil Process Act and the rule of Court requiring leave of the court or a judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compilance is entitled ex debito justitae to have same set aside as was done in Sken Consult, Nwabueze v. NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of”.
From the decisions of the authorities cited above it is very clear that defects in service is voidable only if the complainant has not taken any steps to regard them as voidable irregularity. In the instant case besides that the defendants had complained that they wanted the writ set aside and had challenged the purported service made on them they also did not take any positive step which will appear as a waiver of the defect. This being so I hold that the learned trial judge was right in finding that the non-endorsement of the writ completely had affected the validity of the writ and thus rendered it incompetent. This issue has also been adjudged against the appellant. The resultant effect of it, therefore is that the entire appeal fails.
I shall now consider the cross-appeal filed by the cross-appellants. The two grounds filed separately by the cross-appellants are also reproduced below without their particulars:
(i) The learned trial judge erred in law and thereby came to a wrong conclusion when he held as follows:-
“I refer to the first ground and hold that the grant of leave being at the discretion of the court can be obtained before the filing of the writ provided it was obtained before the service on the defendant. The court order of 26th January 1996 granting leave to issue the writ of summons outside the jurisdiction is valid”.
(ii) The learned trial judge erred in law and thereby came to a wrong conclusion when he hold as follows:-
“I refer to the 3rd ground and to Section 99 S & C Pr. Act and hold that what matters is that the Defendant outside the jurisdiction is given 30days. The Court order of 26th January 1996 that the defendants have 30 days to enter appearance after service “which accompanied the writ of summons complied with Section 99 of the Act even though the eight day in the to read 30 days. The defendants cannot say that when served and having read the court order, they were not given 30 days.”
The issues for determination formulated from these two grounds of cross-appeal quoted above read as follow:
I intend to deal with these two issues together. The learned counsel for the cross-appellant submitted that no period was specified on the said writ of summons as the period within which the Defendants/Cross-appellants were required to appear before the court to answer to the writ, but eight days were limited for the defendants to enter appearance. But the lower court in its ruling delivered on 29/1/96 in an exparte application for leave to issue the writ suo motu ordered the defendants/cross-appellant had 30 days to enter appearance after service. And on 19/11/97 the lower court delivering a ruling on the defendants/cross-appellants application to set aside the writ on that ground upheld the order that the defendant had 30 days to enter appearance after service delivered on 26/1/96 was in compliance with Section 99 of the Act. He submitted that that ruling is erroneous because the provision of the Act (i.e Section 99) provided that the period shall be specified in a writ of summons and not in a court order. He argued that words of the statute which are clear and unambiguous must be given their ordinary meaning. See Adegoke Motors v. Adesanya (supra).
The learned counsel for the cross-appellant further submitted that the court order of 29th January 1996 (giving 30 days to defendants/cross-appellant to enter appearance after service) relied on by the learned trial judge was made without jurisdiction and was not in compliance with the provisions of Section 99 of the Act. The order merely required the defendants to “enter appearance” within 30 days and not “to answer before the court to the writ of summons” as provided by section 99 of the Act. Learned counsel also submitted that non-compliance with the provisions of section 99 of the Act is a mere irregularity as it means there is no service hence it is a fundamental defect which goes to the root of competence and also touches on the jurisdiction of the court. See Skenconsult v. Ukey (supra); Madukolu v. Nkemdilim (supra) and Odua Investment Co. Ltd. v. Talabi (supra).
The learned counsel finally submitted that there having been no compliance with section 99 of the Act, the lower court ought properly to have set aside the writ of summons, as prayed by the defendants/cross-appellants as they are entitled ex debito justitiae, to have same set aside. He finally urged this court to answer the two issues in the positive and strike out the writ summons for non-compliance with section 99 of the Sheriff and Civil Process Act. In his response to the arguments advanced by the counsel to the cross appellants, the learned counsel to the cross respondent submitted that the appellant has complied with the rules as the leave was sought and obtained before the service of the writ on the defendants/cross appellants and to hold the contrary could work injustice on the appellant. This, he added, is because the rule of leave of court to be sought is for the benefit of the court as it is aimed at informing it that its territorial jurisdiction is to be enlarged temporarily by the service of writ outside its jurisdiction. Also it is because neither the application nor the absence of it confers any additional claim on the plaintiff or right of defence on the merits on the defendants. He also argued that the cases of Nwabueze v. Obi Okoye (supra) and Odua Investment Co. Ltd. v. Talabi (supra) are distinguishable from the instant case as in none of the former cases was the implication of obtaining leave after issuance of writ but before service was effected on the defendants was raised hence the decision in those cases could not apply to this instant case.
With reference to the second issue for determination of the cross-appeal, the learned counsel for the cross respondent submitted that the question on whether the defendants /respondents were given 30 days to enter appearance is a question of facts peculiar to each particular case. He argued that the cases cited earlier are distinguishable from this instant case because in none of those cases was the period to enter appearance specified in any accompanying court order. He also submitted that 8 days specified in the writ of summons is merely to enter appearance and the period within which “to answer before court” as required by the rules could be said to be 30 days as specified in the accompanying order. He urged us to uphold the decision of the trial court that there was compliance with section 99 of the Act.
It is pertinent at this stage to refer to the relevant rules of the trial court and section 99 of Sheriffs and Civil Process Act. Order 2 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 under which the motion ex-parte was taken to the lower court reads as below:
“Subject to the provisions of Part VII of the Sheriffs and Civil Process Act no writ of summons for service out of the jurisdiction or of which notice is to be given out of the jurisdiction shall be issued without leave of the court or a judge in chambers”.
Also section 99 of the Sheriffs and Civil Process Act reads as follows:
“The period specified in a writ of summons for service under this part is the period within which a defendant is required to answer before the court to the writ of summons shall not be less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that longer period”.
In a book “Aguda, Principle of Practice and Procedure in Civil Actions in the High Courts of Nigeria (1st Edition) the learned author had this to say at page 13:
“The writ must bear the date on which it was issued. The whole process of issuing a writ is carried out by the registrar but any writ of summons for service outside the jurisdiction of the court will not be signed or sealed except with the leave of the court or a judge”.
The said author in the paragraph before the above quoted statement of fact said
“when a writ is signed and sealed by the registrar of the court it is said to be issued.”
In the instant case the writ of summons was filed and issued on 4th January 1996 while leave to issue same was obtained only on 29th January 1996. That is the say leave to issue it was not obtained before it was issued. That, I am afraid, is not and should not be the procedure. Leave of court must always be obtained before a writ of summons for service out of jurisdiction of court is issued. In Adegoke Motors Ltd v. Adesanya supra Oputa JSC said in the reference to or 2 & 4 at p. 270 (para C-E) thus:
“The reality of the present position is that the High Court of Lagos (Civil Procedure) Rules not only made provision for service but also incorporated by direct reference, the Sherriffs and Civil Process Act… Now, whether or not the leave of the judge in chambers should be alleged as a challenge to the validity of the writ”.
Also in Nwabueze’s case (supra) the Supreme Court Per Agbaje JSC while considering a similar rule has this to say at page 68.
“So because of the provision of order 2 Rules 4 RSC 1960 England, the plaintiff had to obtain the leave of the Anambra High Court before he could issue or cause the writ of summons to be issued. It is common ground in this case that no such leave was obtained by the plaintiff before the writ was issued or before the plaintiff caused the writ to be issued.
Thus, before a writ is issued outside a court’s jurisdiction, an application must be filed and heard by the court and must be duly granted before such writ is issued. In the instant case such was not the case. There is therefore no how the holding of the trial court that leave can be obtained before the filing of the writ can be correct even if such leave was obtained before the defendants were served. The trial court therefore erred in law by holding the court order of 26th January 1996 granting leave to serve the writ of summons outside the jurisdiction before issuance is valid. In my view it is mandatory to seek and obtain leave before a writ is issued outside the jurisdiction of the court.
On the 2nd leg of cross-appeal which relates to whether compliance with the section 99 of the Sheriffs and Civil Process Act was made and if not was the trial judge right in striking out the writ, I must admit that I have dealt with such issue while discussing the second issue for determination in this appeal. However, I shall say a word or two on it again even at the risk of being repetitive. The lower court while delivering its ruling on 29/1/96 in an ex-parte application for leave to issue writ ordered that the cross appellant had 30 days to enter appearance after service. But on 19/11/97 the trial court while delivering ruling in an application to set aside the writ on that ground held that that was proper. Section 99 of the Act is clear on that. The court order is saying that the defendant is required to enter appearance within 30 days and not to answer before the court to the writ of summon as enjoined by said provision. There is therefore gross non-compliance with the provision of Section 99 of the Act. The court order made on the 29/1/96 was therefore defective and it affects the validity of the writ since no compliance was made to the provisions of Section 99 of the Act. It was therefore made by the court without jurisdiction.
I shall now come to the effect of non-compliance with the provisions of Section 99 of the Act. From the wording of the Act by its use of the word “shall” there is no doubt that it has mandatory effect. All the decided cases cited and discussed above are to the effect that breaches of regulations relating to, for example, “service” “appearance” are not mere irregularities but are fundamental defects that touch on the competence and the jurisdiction of the court. In Adegoke’s case the Supreme Court stated that any defect in the service of writ (i.e. non-compliance with sections 97, 98 and 99 of the Act) renders such a writ voidable. In fact in a more recent case of Odu’a Investment Company Ltd. (supra), the Supreme Court after reviewing all the cases I cited above held that non-complains with sections 97 and/or 99 of the Act renders the writ and service of it voidable and if the defendant complains without delay he should have them set aside provided he did not take any step to waive such irregularity he complained of.”
It is not in dispute that the cross-appellants/defendants in this case have complained by applying that the writ be set aside. On that premise the lower court ought to have set aside the writ of summons. The lower court was therefore in the circumstance very correct in striking out the writ of summons. This issue is therefore resolved in favour of the cross-appellants.Thus in conclusion, I hold that the appeal lacks any merit and I dismiss it accordingly. On the other hand the cross-appeal has partly succeeded and is partially allowed. As a corollary, the preliminary objection is sustained and allowed.
GEORGE ADESOLA OGUNTADE, JCA: I read before now a copy of the lead judgment by my learned brother, Sanusi, JCA. He has meticulously and comprehensively dealt with the major issues in the appeal. These include whether it was the old 1972 Lagos High Court Civil Procedure Rules or new 1994 rules that applied to the issuance and service of the writ of Summons issued on 4/1/96. He has in the same way dealt with the issue arising from non-compliance with Sections 97 and 99 of the Sheriff and Civil Process Act, Cap 407 Laws of the Federation 1990.
I entirely agree with the treatment of issues in the lead judgment. I would therefore make the same orders as in the lead judgment.
SULEIMAN GALADIMA, JCA:. I have had the privilege of preview of the judgment just delivered by my learned brother, SANUSI, JCA.
He has meticulously and painstakingly too, dealt with contentious issues of issuance and service of court processes, particularly outside the court’s jurisdiction; and also the question of noncompliance with sections 97 and 99 of the Sheriff and Civil Process Act, Cap. 407., Laws of the Federation 1990. I agree with his conclusion that this appeal should be dismissed and the partial success of the cross-appeal.
I also make no order as to costs.
Cases referred to in the Judgment.
Achineku v. Ishagba (1988) 4 NWLR (Pt. 89) 411.
Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250
Agbetoba v. LSEC (1991) 4 NWLR (Pt. 188) 664
Ani v. Nna (1996) 4 NWLR (Pt. 440) 10.
Blake v. Summersby (1889) WN39
C.C.B. Nigeria Plc. v. AG. Anambra State (1992) 8 NWLR (Pt. 261) 528.
Elega v. Bamgudu (1994) 3 NWLR (Pt. 334) 534
Ezomo v. Oyakhire (1985) 1 NWLR (Pt 2) 195
Igboidu v. Igboidu (1999) 1 NWLR (Pt 585) 27
Kotoye v. Saraki (1993) NWLR (Pt. 357) 414.
Leedo Presidential Hotel Ltd. v. Bank of the North Ltd. (1993) 1 NWLR (Pt 269) 334
Madagwa v. State (1988) 5 NWLR (Pt. 92) 60
NEPA v. Onah (1997) 1 NWLR (Pt. 484) 680.
Nwabueze v. Obi-Okoye (1988) 19 (Pt. 111) NSCC 53.
Odu’a Investment v. Talabi (1997) 10 NWLR (Pt. 523) 1
Odutola v. Kayode (1994) 2 NWLR (Pt. 324) 1
Okoye v. Nigeria Construction & Furniture Company (1991) 6 NWLR (Pt. 199) 501
Oyinda v. Ajembe (1991) 4 NWLR (Pt. 184) 203
United Nigeria Press Ltd. v. Adebanjo (1969) 1 ALL NLR 431
Urhobo & Ors. v. Major General B. I. Oferi. (1999) 2 NWLR (Pt. 589) 147
West Africa Ltd. v. Nigeria Maritime Services Ltd. (1962) 1 ALL NLR 605
Statutes referred to in the judgement
Laws of the Federation 1990 Sections 97, 98 and 99.
Sheriffs and Civil Process Act Cap 407. LFN, 1990; Section 97,98 and 99
High Court of Lagos State Civil Procedure Rules 1972, Order 2 Rule1; Order 3 Rule 1.
High Court of Lagos State Civil Procedure Rules 1994, Order 3 Rule 5; Order 3 Rule 1.