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In The Supreme Court of Nigeria
On Friday, the 19th day of May
1989
Before Their Lordships
SC 186/1988
Between
And
Reasons for Judgement of the Court
Delivered by
Chukwudifu
Akunne Oputa.
J.S.C.
On the 27th day
of February, 1989, Mr. Awodein for the
defendant/appellant moved his motion dated 22/2/89 seeking the leave of this
honourable Court to amend his Notice and Grounds of Appeal. The Notice of
Appeal was dated 21st February, 1989 and had already been filed.
As the motion was not opposed by Mr. Tinubu for
the respondents, it was granted and the Notice and Grounds were deemed to
have been duly and properly filed. There was also an application by Mr.
Tinubu for extension of time within which to
file respondents' Brief and for the Brief already filed to be deemed to have
been properly and duly filed. This motion was not opposed by Mr.
Awodein for the appellants and same was
accordingly allowed and the respondents' brief filed out of time was then
deemed to have been duly and properly filed.
The appeal was
then argued on the two briefs filed with leave of Court. At the close of
arguments, I made the following notes:-
Having read the
Briefs and after listening to learned counsel on both sides, it is my view
that this appeal lacks merit. There must be a difference and distinction
between the validity of a Writ of
Summons and the validity of
the Service of the selfsame Writ. If a Writ is valid, any defect in
Service becomes a mere irregularity which may make such a Writ voidable but
definitely not void. A Writ can only be voided by an
intrinsic and substantial defect
in the Writ itself. If a Writ is merely voidable,
(but not void for being incurably bad), the entry of an appearance by the
defendant may constitute a waiver thus validating an otherwise invalid
Service. In this case, there was no challenge in the trial High Court
that the Writ was not validly issued or validly served. The defendants were
served. They did not enter a
conditional appearance or an appearance on protest. They did not move
to set aside the Writ. Rather the defendants now appellants entered each an
unconditional appearance. Had the defendants attacked the validity of the
Writ or/and it’s Service in the High Court, then those two issues can now be
taken up on appeal. But they did not.
I will now
proceed to give my reasons for dismissing this appeal on the 27th day of
February, 1989. The main issue in this case is whether or not the Writ that
originated the present action leading up to this appeal was void for
non-compliance with Sections 97, 98 and 99 of the Sheriffs and Civil Process
Act Cap 189 of 1958. Mr. Awodein, learned
counsel for the appellants contended that the Writ was a nullity, incurably
bad and relying on the maxim: ex nihilo nihil
fit, he submitted that all the subsequent proceedings, judgments and
order in pursuance to the void Writ were also affected and infected with the
stain of a fundamental vice and were also void. Mr.
Tinubu on the other hand contended that the Writ was valid and could
therefore support, sustain and vivify the various judgments and orders.
From the
arguments put forward, both in the briefs and oral submissions of the
parties, it is evident that the parties interpreted our various decisions
where Sections 97, 98 and 99 of the Sheriffs and Civil Process Act were
mentioned; especially Skenconsult
(Nig.) Lt & Anr. v. Ukey
(1981)1 S.C. 6 and
Ezomo v. Oyakhire
(1985) 2 S.C. 260; (1985)1 N.W.L.R. (Pt.2)
195 differently and arrived at different conclusions as to what exactly this
Court decided in those cases. It also appeared in rather bold relief that
there is now a tendency among our lawyers, and sometimes among some of our
Judges, to consider pronouncements made by Justices of the Supreme Court in
unnecessary isolation from the facts and surrounding circumstances of those
particular cases in which those pronouncements were made. I think it ought
to be obvious by now, that it is the facts and circumstances of any given
case that frame the issues for decision in that particular case.
Pronouncements of our Justices whether they are
rationes decidendi
or obiter dicta must
therefore be inextricably and
intimately related to the facts of the given case. Citing those
pronouncements without relating them to the facts that induced them will be
citing them out of their proper context, for, without known facts, it is
impossible to know the law on those facts.
The facts and
circumstance of the recent case of Ben Obi Nwabueze
& Anr v. Justice Obi Okoye
(1988) 4 N.W.L.R. (Pt.91)
664 and the decision and pronouncements of this Court in that case, all too
clearly illustrate the point here being made - that Court's decisions and
pronouncements derive their
strength, their persuasive potency, their inspiration and therefore
their value as precedent
from the facts of the case as
pleaded and as presented. In Nwabueze's
case (as in this case) the Writ was issued in one jurisdiction for
service in another jurisdiction. In Nwabueze's
case supra, when
the Writ was served on the defendants, they promptly applied to the High
Court that issued the Writ for:-
(i)
An order setting aside the Writ of Summons.
(ii)
An order setting aside the order of substituted service (the
defendants were served by substituted means).
(iii)
An order setting aside the purported issue and service of the Writ of
Summons on each of the defendants.
It thus became
clear and apparent, from the word go, that the defendants questioned both
the validity of the Writ as well
as the validity of the Service of the self same Writ These then
became Issues, in the case, calling for a decision. These
Issues, framed as they were from and by the facts
and the steps promptly taken
by the defendants, formed the basis of this Court's pronouncements and
decision in Nwabueze's case supra.
To rely on any pronouncements or on the decision in
Nwabueze's case
in a subsequent case, it is incumbent on counsel so relying to show
that the facts of his case are similar to those of
Nwabueze's case and (this is very important) that
he took promptly the necessary
steps to question the validity of the Writ or the validity of its service or
both as was done in Nwabueze v.
Okoye supra. If he does not succeed in doing
this, he will be citing those pronouncements out of their proper context and
he will thus be asking the Court to
misapply them. In this case
the appellants did not do what was done in
Nwabueze's case supra.
This Court,
though the Court of last resort, is still an
appellate Court. Section
212 of the 1979 Constitution no doubt conferred original jurisdiction on the
Supreme Court. But the present case now on appeal, was not brought under
Section 212 of the 1979 Constitution. It was brought under the appellate
jurisdiction of the Court as conferred by Section 213 of the 1979
Constitution. The appellants came to this Court
on appeal.
Generally, an
appeal is regarded as a
continuation of the original suit rather than the inception of a new
action. Because of this, in an appeal, parties are
normally confined to their case as
pleaded in the Court of first instance. They are not allowed to make
a new and different case on appeal. They are not allowed to raise in such
appeal new Issues without the express leave of Court or to proffer new
evidence without such leave. An appeal, being a judicial examination by a
Higher Court of the decision of an inferior Court, it follows that such
examination should normally and
more appropriately be confined to the facts and issues that came
before the inferior Court for decision.
Now what were
the facts and issues that came before Kotun, J.,
for decision in this case? They are as follows:-
1.
A Writ of Summons dated 26th day of June, 1986 was filed in the
Registry of the Ikeja Judicial Division of the
Lagos State High Court and therein numbered Suit No ID/599/86.
2.
Two copies of the said Writ were supplied for Service on the two
defendants.
3.
The Writ was specially indorsed and the Particulars of the
Plaintiffs' Claim clearly set out as required by Order 3 Rule 4 of the High
Court of Lagos (Civil Procedure) Rules, 1972.
4.
The Writ was served on the defendants.
5.
A memorandum of appearance was entered on behalf of the defendants by
their Solicitors Messrs Bamidele
Aiku & Co. of No. 22 Dugbe
Market Road, Abusi Green House,
Ibadan.
6.
The above memorandum of appearance was entered on the 22nd
day of September, 1986, that is to say, 2 months and 27 days after the issue
of the Writ.
7.
The appearance entered by Messrs. Bamidele
Aiku was neither conditional nor under protest.
It was an unconditional appearance.
8.
After the entry of the above appearance, there was no motion brought
before Kotun. J. to
challenge either the validity of the Writ or the validity of the Service or
both.
9.
The defendants did not file an affidavit of merit as required by
Order 10 Rule 3(b) Lagos State High Court Rules.
10.
The defendants did not file any Statement of defence either.
11.
Seven months and 10 days after the issue of the Writ, on 6th
February. 1987 - (this period is also 5 months
and 15 days after entry of appearance by the defendants) the Plaintiffs
brought a motion under Order 10 Rules 1, 2 and 7 of the High Court of Lagos
Rules.
12.
The plaintiffs' motion was heard on 9th March 1987 (that is 6 months
and 18 days after the entry of appearance by the defendants) and
Kotun, J., of the Ikeja
High Court entered judgment for the Plaintiffs for a total sum of
13.
On the 13th of March, 1987, another firm of Solicitors – Kola
Awodein & Co. brought a motion praying the Court
for the following orders:-
(i)
An order that the judgment
obtained against the defendant/applicant on 9th day of March, 1987,
upon default of appearance be set aside.
(ii)
An order setting aside the Service on the defendant of the Writ of
Summons.
(iii)
An order striking out the Writ of Summons and Statement of Claim in
this action with substantial costs.
(iv)
An
order for stay of execution of the judgment.
14.
It does not appear from the record that this motion was ever heard.
The Statement of facts in the
briefs of the parties were also silent on
this point. I therefore take it that the motion was not heard.
15.
On 15/4/87 S.O.
Agbaje-Williams, C.J. Oyo State ordered
the release of two vehicles - a new Volkswagen Santana car and a new
ambulance belonging to the applicant and attached by the Sheriff and kept on
the premises of the High Court of Justice Ibadan upon the applicant giving
an undertaking in writing to the Chief Registrar of this Court not to sell
or otherwise dispose of them until the determination of the substantive
application dated 7th April, 1987 and set down for hearing on the 18th day
of May, 1987 or until further order of the Court.
16.
After making the above order, Agbaje-Williams
transferred the case to Court No 2.
17.
The next thing one finds in the bundle of papers on which this appeal
was argued is the judgment of the Court of Appeal at
pp.84-109 of the record.
18.
The Court of Appeal on 9th December, 1987, dismissed the defendant's
appeal.
19.
The Court of Appeal considered as an issue in the appeal:-
whether
there is a conflict between the decision in
Skenconsult Nigeria Ltd. & anon v. Ukey
(1981) 1 S.C. 6) and the decision of the Supreme Court in
Ezomo v. Oyakhire
(1985)1 N.W.L.R. (Part 2) page 195.
and
held by a majority of 2 to 1 that the two decisions are conflicting.
20.
The defendant has now appealed to this Court.
These are the
naked facts of this case.
And these are the facts which
ought to frame the issue for determination. These issues are not
going to be framed from pronouncements made in earlier decisions of the
Supreme Court but from the facts and circumstances on which the
Court of trial relied. It
will definitely be a different matter if this Court is now being asked to
overrule its previous decisions in Skenconsult
or/and Ezomo supra.
If that were the case, this Court as presently
constituted, will not be competent to embark on such a considerable
undertaking. We are however not being asked to overrule either
Skenconsult
or Ezomo
supra. We are rather asked, (I suppose), to reconcile them or
else to declare them irreconcilable.
Having traced
the history of this ease and its journey from the trial Court, it is now
pertinent to look at the Issues for determination. I will now set out below
those Issues as formulated in the
appellant's brief:-
4.2
What is the proper effect of a breach of Sections 97 and 99 of the
Sheriffs and Civil Process Act, Cap.
189, Laws of the Federation 1958?
4.3
Is there a conflict between the Supreme Court cases of
Skenconsult
v. Ukey (1981)1 S.C. 6 and
Ezomo
v. Oyakhire (1985) 1
N.W.L.R. (Part 2) p. 195 as regards the breach of Section 99 of
the Sheriffs and Civil Process Act.
From this main
issue, must necessarily arise two corollary issues namely;
4.4
Whether the concept of waiver is applicable in the instant case?
4.5
If the answer to issue 4.4 is in the affirmative, whether the
appellant had waived his right in this case by entering an appearance.
4.6
Whether Ezomo v.
Oyakhtre was rightly decided.
The above Issues
for Determination as formulated in the Appellant's Brief
made no mention, and took no
account of, the peculiar facts and circumstances of this case. As the
Issues stand, wholly unrelated to the facts of this case, they are
either purely academic or
else they are seeking the opinion of the Court on the interpretation, in
vacuo, of Sections 97 and 99 of the Sheriffs
and Civil Process Act Cap 189 of 1958. Either request is not within
the proper role and/or function of this Court.
Issues 4.2 and
4.3 above, which incidentally are the radical and principal issues (since
the others (4.4 and 4.5) are supposed to be corollary issues) take for
granted that there was a breach of Sections 97 and 99 of the Sheriff's and
Civil Process Act in this case
for if there was no such breach - (and this can only be shown, and
can only be known, by reference to and evidence of the
facts of this case) then
the two radical and principal issues will hardly be live issues. Then again
also the subsidiary issues will collapse for sublato
principali tollitur
adjunctum (Co Litt.
389) (the principal being taken away, its adjunct is also taken away). Then
we will be left only with Issue 4.6 above, which can only be gone into and
decided by a Full Court. Then again there will be no proper issue for
determination and consequently the appellants would have succeeded to frame
itself out of Court. This shows the importance of
adverting to the facts of any
given case and the findings
in that case before deciding on the
Grounds of Appeal and
thence framing Issues for
Determination arising from those grounds in the appeal.
Now, in spite
of, and notwithstanding the inelegance of the
Issues as framed, 1 will
still look at the facts of this case as set out earlier on in this judgment,
to find out whether:-
(i)
Having been issued, was the writ attacked on any ground of
impropriety or invalidity?
(ii)
There was service of the writ on the defendant.
(iii)
The defendant was given ample opportunity to either challenge the
validity of the Writ or its Service or appear and defend or challenge the
action after having entered an appearance.
(iv)
The
judgment of Kotun, J, was in accordance with the
law having regard to the facts and circumstances of what was presented to
him.
These should
have been the relevant and proper issues and not an academic discussion on a
possible, or probable, or imaginary, conflict between
Skekconsult
and Ezomo supra.
There
must be a distinction between the issuance of a Writ and the Service of that
writ. After all, the long title to the Sheriffs and Civil Process Act Cap
189 of 1958 is:
An Ordinance to
make provision for the appointment and duties of Sheriffs, the enforcement
of judgments and orders and the
Service and execution of civil process of the Courts of Region throughout
Nigeria.
Strictly
speaking, the Issuing of civil
Process and the Service of such process should be
two distinct though inter
related steps in civil
litigation. A writ may be valid while its service may suffer from some
defect. It may also happen, as was the case in
Nwabueze v. Okoye supra, that
both Writ and its Service are invalid. Again and strictly speaking the
issuing of civil process (here Writ of Summons) should be the concern of the
High Court Law and the High Court Rules while the service of such process
will be referable to "the Law made for the
Service of civil process of the Courts" - the Sheriffs and Civil Process Act
189 of 1958. 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 Sheriffs and Civil Process Act. Order
2 Rule 4 of the Lagos Rules provides:-
Or. 2
Rule 4.
Subject to the provisions of Part VII of the Sheriffs & Civil Process
Act no writ of summons for service out of jurisdiction ….
shall be issued without the leave of the Court or
Judge in Chambers.
Now whether or
not the leave of the Judge in Chambers was obtained in any particular case
is a question of fact which should be alleged in a challenge to the validity
of the Writ. Such challenge should be made at the High Court stage so that
it will form an issue in the case. Thus the trial Court will consider the
issue and our appellate Courts will then review the decision of the High
Court thereby fulfilling their role as appellate Courts. Also if a Writ is
not properly indorsed as required by Section 97 of the Sheriffs and Civil
Process Act such a writ should he properly tendered and made an exhibit in
the case. When the case goes on appeal, the appellate Court will then easily
refer to the exhibit and receive submissions on it.
Nnaemeka-Agu J.S.C., expressed similar
views in a recent case Niger Progress Ltd. v. North East Line Corporation
(1989) 3 NWLR (Pt. 107) 68 at p. 100
viz:
In the instant
case whether or not the writ was duly indorsed … is not only new, but one
which should have been resolved one way or the other in the Court of trial.
It ought to have occurred to learned counsel that this Court cannot make any
pronouncement on the endorsement or Service of the Writ when such an issue
was never placed before the lower Court ... even a notice to raise a point
not raised in the Court below ...
can never serve as a licence for introducing new and separate issues.
I am in complete
agreement with this view and the previous decisions of this Court implicitly
support it.
And this partly
accounts for the difference in the approach of this Court between
Skenconsult
and Ezomo
which some have seen as a conflict. In Skenconsult
the struggle started rightly in the High Court with a motion filed by the
appellants
"to set aside
the two orders made by the Court on the 15th day of December, 1978, and
the Service of the writ of summons
and motion on Notice dated 11th December, 1978, on the ground that
such service was not in accordance with the provisions of the Sheriffs and
Civil Process Act and
also because the Court has no jurisdiction to entertain the plaintiffs'
claim"
(italics
mine)
The defendants
promptly attacked the Writ and indicated quite clearly and unequivocally
that they were basing their attack on some infringements of the Sheriffs and
Civil Process Act. Issues were then joined in the High Court on whether or
not the writ ought to be invalidated for non-compliance with the Sheriffs
and Civil Process Act. The High Court exercising its
original jurisdiction ruled
one way or the other on that issue. The Supreme Court exercising its
appellate jurisdiction then
reviewed the decisions of the two Courts below
on that same issue and made
the various pronouncements which some counsel or even Judges now tend to
quote out of their proper context and unmindful of the facts and peculiar
surrounding circumstances of Skenconsult's
case.
In
Nwabueze v Okoye
supra, the defendants (as I have mentioned earlier on) on receipt of the
Writ of Summons, applied to the High Court for:-
(1)
an order setting aside the writ of
summons;
(2)
an order setting aside the order of
substituted service; and
(3)
an order setting aside the purported issue
and service of the Writ of summons on each of the defendants.
The defendants
based their objection and attack on the Writ on violation of provisions of
Section 97 of the Sheriffs and Civil Process Act 1958. The matter - whether
or not the Sheriffs and Civil Process Act had been complied with or had been
contravened then came to the Supreme Court. as it
ought to, on appeal. That issue then took into account the facts and
circumstance of the case as it had been argued and agitated both in the High
Court and the Court of Appeal. Any pronouncements made by the Court in
Nwabueze
or
Skenconsult supra had to be read and understood in
relation to the peculiar facts and circumstances of that case.
In this case, a
Writ of Summons (valid or invalid is immaterial at this stage) was served on
the defendants. The defendants could, If they wanted to either:-
(i)
enter an appearance on
protest or;
(ii)
enter a conditional appearance and;
(iii)
then file a motion asking the Court
seised of the matter - the
Ikeja High Court to set aside the purported Writ and the purported
service on them on the ground of essential invalidity of both Writ and
Service.
The defendants
did not do this. Rather they entered an appearance through their Solicitors
Aiku and Co. This implied that they
wanted and intended to
contest the case of the Plaintiffs. But to even be admitted to contest that
case under Order 10 Procedure, they were expected to file an affidavit of
merit or at least a Statement of Defence showing a defence on the merits:
Nishizawa Ltd. v.
Jethwane (1984)12 S.C. 234 and U. T. C. Nigeria Ltd. v Chief
J.P. Pamotei (1989) 2
N.W.L.R. (Pt.103) 244 at pages 270-273
both refer. The defendants did not attack the Writ or its Service in the
High Court. The High Court gave its judgment without the validity or
otherwise of the Writ or/and its Service being raised as an issue. Can that
issue be properly raised for
the first time on appeal to
the Court of Appeal? To constitute an appeal to that Court on the issue of
the writ, that issue should have been argued and ruled upon by the High
Court as was done in Skenconsult
and Nwabueze supra. There was not
even an application by the appellants to the Court of Appeal or to this
Court for leave to argue an Issue not taken up at the trial Court. Maybe
not, as this was not just arguing a point not taken up in the trial Court
but rather putting forward a completely new case on appeal, a case different
from what the trial Court was called upon to decide.
The appellant in
its brief, page 2 para.
5.2, stated as follows:-
It cannot be
disputed in this case that the Writ of Summons (page 1 of the Record) did
not specify on it the mandatory minimum period of 30 days within which the
appellant was required to enter appearance to the same as required by
Section 99 of the Sheriffs and Civil Process Act, Cap 189, Laws of the
Federation 1958. Indeed it specified just eight days.
Now Section 99
of the Sheriffs and Civil Process Act stipulates:-
The period
specified in a writ of summons for Service under this Part as the period
within which a defendant is required to answer before the Court to the
writ of Summons shall not be less than thirty days after the Service of the
Writ has been effected and 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
(Italics mine).
In the writ
filed at p.1 of the record, what was asked to be
done within eight days after the Service of the Writ is simply "that you
do cause an appearance to be entered for you."
He was not required by the Writ, to use the words of Section 99
of Cap 189 of 1958, "to answer before the Court to the Writ.” It is
thus obvious that the 8 days mentioned in the Writ originating this action
was for mere "entering of appearance" and not
for appearance to contest the
claim of the plaintiff before the Court. What
then is the difference between "entering an appearance" and
"appearance"?
I will here
refer to "The Dictionary of English Law" by Earl Jowitt
1959 ex. p. 132 subnomen
Appearance:-
In the
primary
sense of the
word, the parties to a proceeding or application ....
are said to appear on it when they are present before the Court, Judge,
etc., when it is heard. A party appears either in person or by his
counsel or solicitor. In a secondary sense of the word, appearing or
entering an appearance is a formal step taken by a defendant to an action
after he has been served with the Writ of summons: its object is
to intimate to the plaintiff that the defendant intends to contest
his claim; or, in a friendly action, to take part in the proceedings in
the action.
Appearance is
effected by delivering to the proper officer of the Court, usually
within eight days from service of the writ inclusive of the day of Service,
a memorandum giving the title of the action, stating that the defendant
appears in person or by his solicitor as the case may be, giving the address
of himself or his solicitor … and also a duplicate memorandum for sealing
... and on the same day giving notice of his appearance to the plaintiff.
When a defendant
desires to object to the regularity of the proceedings by which the
plaintiff seeks to compel his appearance, he may, by leave of a master,
enter a conditional appearance or an appearance under protest, and then
apply to the Court to set aside the plaintiffs proceeding; or he may,
without entering an appearance, move to set aside the service of the
Writ."
(Italics are mine to focus attention on the real issues in this case).
The writ in this
case clearly mentioned "entering
an appearance" which is a
technical expression and a
formal step taken by a defendant
in civil proceedings. In
this case, the defendant did not enter a
conditional appearance, it
did not enter appearance under
protest; the company did not
move to set aside either
the Writ or the Service of
an "irregular or an invalid writ." The defendant/appellant did none of these
things. Can it really now, in an appellate Court, question either the Writ
or its Service? I think not. It has to be
proved that the Writ was
radically, intrinsically
and substantially invalid
and was, thus so incurably defective, that it amounted to a nullity.
This proof
should normally be offered in the High Court where the defendants should
have complained about the invalidity of the Writ or its service. In
Skenconsult, there was such a
challenge but Maidoh, J., thought he would be
converting his Court into an appellate Court from the orders of
Ekeruche, J., (as he then was). It was this
point that was taken up in Craig v. Kanseen
(1943)1 All E.R. 108 where it was held that
an order which is a nullity is something which the person affected by it is
entitled to have set aside ex debito
justitiae. In such a case therefore, the
Court that made the order, in its inherent jurisdiction, can set aside its
own order and an appeal is not necessary. Kotun,
J., could have been asked to set aside his judgment based on the Writ now
complained about. Any decision from his Court could then he taken op on
appeal to the Court of Appeal and from thence to this Court as was done in
Skenconsult and
Nwabueze supra.
The appearance
mentioned' in Section 99 of the Sheriffs and Civil Process Act supra is no
other than the presence of the defendants in Court when the case is being
heard in order to contest the claim; "to answer before the Court" the
plaintiff's claim. The real issue in Skenconsult
was that the case against the defendant was heard in his absence and
before the expiry of the minimum of 30 days "after the Service of the Writ
has been effected" as required by Section 99 of Cap 189 of 1958. The motions
from which and pursuant to which two orders were made by
Ekeruche, J., (as he then was) were not served
on the appellant. In that situation, the issue really was the nullity of the
issuing proceedings. The ratio decidendi
in Skenconsult
as beautifully stated by Nnamani,
J.S.C., at p.27 of
the Report is as follows:-
In the instant
case, the appellants were not
properly served in law with the Writ of Summons. They were neither served
with the motions pursuant to which the two orders were made nor were they
present or represented by
counsel when the said orders were made. My Lords, I am of the view
that on all these grounds
the first arm of Chief Williams' argument must succeed and the orders ought
to be set aside.
Chief Williams'
submission was that the law (S.99 supra)
required a period of at least 30 days between the date of Service and the
date of hearing or "appearance before a Court to answer the plaintiff's
case." The two orders made by Ekeruche, J., (as
he then was) in Skenconsult were
set aside because of the combined
and cumulative
effect of:-
(i)
improper Service of the Writ;
(ii)
non-service of the two motions;
(iii)
non-appearance of the appellants; and
(iv)
non-appearance of any counsel to represent
them.
The facts of the
present case now on appeal are
totally different from those of Skenconsult.
In this case, the defendant entered an appearance which was neither
conditional nor on protest. The motion for judgment under Order 10 Procedure
was served on the defendant/appellant. It neither swore an affidavit of
merit nor filed a Statement of Defence as was done in
Nishizawa Ltd. v. Jethwani
(1984)12 S.C. 234 and recently in U.T.C.
Nigeria Ltd v. Chief J.P. Pamotei (1989) 2
N.W.L.R. (Pt. 103) 244 at pages 270-273.
The hearing of
the Plaintiffs motion for judgment was on 9th March, 1987 a period of more
than 5 months after the entry of
appearance by the defendant on 22/9/86. This period of 5 months and
15 days is definitely more than the minimum of 30 days required by Section
99 of Cap 185 of 1958. The defendant/company went to sleep and continued in
its “peaceful slumber" like the sailors in Lord Tennyson's The Lotus
Eaters", only to wake up on 13th March 1987 to challenge the judgment
and ask for a stay of execution. The defendant/appellant conveniently forgot
that - vigilantibus et non
dormientibus jura
subvenit (Wing 692) - (The vigilant and not
the sleepy, are assisted by the laws) Nishizawa
Ltd. and U.T.C. Nigeria Ltd. supra
were vigilant and the judgments signed against them under the same Order
10 Procedure were set aside. The defendant/company slept. It might as well
continue its "peaceful sleep" and "let what is broken so remain", again with
apologies to Lord Tennyson's "The Lotus Eaters." But the motion was
not even heard. Rather an appeal was heard.
Now to issue 4.3
at p. 2 of the appellant's brief - Whether there is a conflict between the
Supreme Court cases of Skenconsult v.
Ukey and Ezomo
v. Oyakhire? My simple answer is that it is
not part of the jurisdiction or duties of this Court to go on looking for
imaginary conflicts. We are final not
because we are infallible, rather we are
infallible because we are final. Justices of this Court are human beings,
capable of erring. It will certainly be short-sighted arrogance not to
accept this obvious truth. It is also true that this Court can do
inestimable good through its wise decisions. Similarly, the Court can do
incalculable harm through its mistakes. When therefore it appears to
learned counsel that any decision of this Court has been given
per incuriam,
such counsel should have the boldness and courage to ask that such a
decision be overruled. This Court has the power to overrule itself (and has
done so in the past) for it gladly accepts that it is far better to admit an
error than to persevere in error. Learned counsel has not asked us to
over-rule either Skenconsult or
Ezomo supra. If that was what was
wanted, the Briefs should have said so specifically and the Chief Justice of
the Federation would have gladly empanelled a Full Court.
This much,
however, I can say now, that the
expression of every Judge, including Justices of this Court, must be taken
with reference to the facts and/peculiar circumstances of the case on which
he decides otherwise the law will get into extreme confusion. That is
why in this judgment I repeatedly said that
the facts frame the issues for
decision. I will here repeat what I said in my judgment in
Chief Gani Fawehinni v Nigerian Bar Association
& Ors (No 2) (1989) 2
N.W.L.R. (Pt. 105) 558 at page 650.
Our law is the
law of the practitioner rather than the law of the philosopher. Decisions
have drawn their inspiration
and their strength from the
very facts which framed the issues for decision. Once made, these
decisions control future judgments of the Courts in
like or
similar cases. The facts of
two cases must either be the same or at least similar before the decision in
the earlier case can be used in a later ease, and even there, merely as a
guide. What the earlier decision establishes is only a
principle, not
a rule. Rules operate in an
all or nothing dimension. Principles do not. They merely incline decisions
one way or the other. They form a
principium or a starting
point. Where one ultimately lands from that starting point will
largely depend on the peculiar facts and circumstances of the case in hand.
The manner in
which the Judge argues the case in his judgment is not what to look for and
cite in future cases. Rather it is the principle he is deciding. I will
here, quote and adopt what Sir James Bacon, V.C.,
said in Green's Case (1874) L.R. 18
Eq C..A. 428:-
In the judgments
which Judges pronounce this is inevitable, that having their minds full, not
only of the cases before them, but of all the principles involved in the
cases which have been referred to, it very often happens that a judge, in
stating as much as is necessary to decide the case before him, does not
express all that may be said upon the subject. That leaves the judgment open
sometimes to misconstruction, and enables ingenious advocates by taking out
certain passages, to draw conclusions which the Judge never meant to be
drawn from the words he used.
Sometimes the
Judge expresses more than is required for the decision. When this happens
the extra words are superfluous. And Lord Selborne,
L.C., in Giles v. Melsom (1873)
L.R. H.L. Eng. Ir. App. 24 added:-
Nothing can be
more mischievous than the attempt to wrest words from their proper and legal
meaning only because those words are superfluous.
One has to be
very careful and avoid quoting pronouncements of Justices of this Court
outside the parameter of the facts of those decisions and the principles
decided.
In
Ezomo's
case like in this case, the defendant entered an appearance, not a
conditional appearance, not on protest. He did not move to set aside the
Writ. Rather he contested the case and participated fully therein until
judgment. My noble and learned brother, Karibi-Whyte
J.S.C., in his contribution in
Ezomo's case at p. 208 principally
said inter alia:-
….. On the face
of the writ of Summons, it is not a writ for Service outside jurisdiction
and in my opinion did not require leave of the Court or Judge for Service
outside jurisdiction.
It was after so
deciding above that my noble and learned brother then added:-
Service of a
Writ of Summons outside jurisdiction without the leave of the Judge or Court
does not render the writ a nullity. All that is affected is the Service
which is irregular and can be set aside.
Now having
earlier on decided that the
Writ in the Ezomo's case did not
require leave of the Judge or the Court, the latter Statement will be what
Lord Selborne in Giles v.
Melsom supra referred to as superfluous and
the use being made of that which is superfluous as “mischievous”.
As far as I am concerned, the facts of Ezomo’s
case supra are not all fours with those of the present case.
Ezomo
appeared and contested the case in the High Court. The present
defendant/appellant after entering an appearance took no further part in the
proceedings. Judgment was then entered against him. On the facts of the
present case, the present appellant will lose even without any reference to
Skenconsult
or Ezomo
supra. They lost in the trial High Court. That Court never relied on
either
Skenconsult or
Ezomo. It relied on Order 10 Rules 2, 3 and
5. It is only in the Court of Appeal that
Skenconsult
and Ezomo
were dragged in, by the hair of the head so speak, and the imaginary
conflicts highlighted by Ademola and
Uthman, JJ.C.A.
Akpata, J.C.A.., on
his part disagreed and made the
following relevant observation:-
The net result is that the attitude of this Court should be determined by
the facts of each case.
Going by Order
10, where the defendant appears to a writ of summons specially endorsed with
or accompanied by a Statement of Claim, the plaintiff may apply to a Judge
in Chambers for liberty to enter judgment. Since the defendant entered
appearance, the application for judgment and the judgment were valid
regardless of any defect in the Writ of Summons.
I agree with
Akpata, JCA that the
above recourse to the facts of the case is the only course open to the Court
in this case. There was no need to look for conflicts between
Skenconsult and
Ezomo. In any event,
Akpata I C. A. found none and I agree with him.
Skenconsult and
Ezomo were both decided on their
peculiar facts. This case also ought to be decided on its own peculiar facts
leaving all speculations on the imaginary conflict between
Skenconsult and
Ezomo. When that supposed conflict
becomes an issue and when that issue comes squarely before this Court, then
a Full Court will be empanelled to consider it, with proper Briefs filed. It
is after such an exercise that the Court will know which one to over-rule.
That issue has not arisen. There is here no question of choosing between an
earlier and later decision of this Court. That exercise is not necessary to
decide this appeal.
It was for the
above reasons that I, on the 27th day of February, 1989, dismissed this
appeal with
Reasons for Judgment delivered by
Andrews Otutu
Obaseki.
J.S.C.
On the 27th day
of February, 1989, after reading and studying the judgments of the Court of
Appeal and the High Court together with the proceedings before them and
considering the submissions of counsel to the parties in their written
briefs and in oral arguments, I dismissed the appeal for lack of merit and
affirmed the decision of the Court of Appeal. I then reserved the Reasons
for the judgment till today. I now proceed to give them. Before now I had
the advantage of reading in draft, the Reasons for Judgment just delivered
by my learned brother, Oputa,
J.S.C., and I find his opinion on all the issues
raised in this appeal totally in accord with mine.
My learned
brother, Oputa, J.S.C.,
has set out the facts of this case in admirable detail and I adopt them.
The part of the
decision of the Court of Appeal complained of by appellant in his notice of
appeal is:
That part of the
decision wherein the Court of Appeal held that non-compliance with sections
97 and 99 of Cap 189 Laws of the Federation 1958 is not a nullity and that
an applicant in a claim for unliquidated damages
can get final judgment without verification or ascertainment of damages.
The ground of
appeal filed, however, left out any complaint about getting final judgment
without verification or ascertainment of damages in case of
unliquidated damages. Only two grounds were
filed. These are:
1.
The learned Justices of the Court of Appeal erred in law when they
held that the writ filed in this case and/or the processes leading up to
judgment were not a nullity for non-compliance with sections 97 and 99 of
the Sheriffs and Civil (sic) Procedure Law 1958 Cap. 189 but an irregularity
which can be waived and in refusing to set aside all proceedings leading up
to judgment
Particulars
(a)
The provision of sections 97 and 99 constitute conditions precedent
to the validity and legality of a
writ of summons as defined under that law and/or to the
service of the writ of summons;
(b)
No proper proceedings or any at all can be founded upon a writ that
is patently defective;
(c)
The High Court had no jurisdiction to entertain an action and/or to
enter such judgment as was confirmed by the Court of Appeal;
2.
The learned Justices of the Court of Appeal erred in law in holding
that the concept of waiver is applicable to a breach of sections 97 and 99
of (sic) the Sheriffs and Process Law Cap. 189 Laws of the Federation of
Nigeria and that the appellant had waived its rights in the instant case.
Particulars
(a)
The concept of waiver is inapplicable to a breach of sections 97 and
99 of the Sheriffs and Civil Process Law;
(b)
No party is allowed to waive the effect of a rule of public policy
which sections 97 and 99 is about;
(c)
It is against public policy to compromise on illegality;
(d)
The circumstances of this case do not justify such a finding of
waiver.
The proceedings
leading to the appeal to the Court of Appeal and from thence to this matter
was initiated by a motion seeking an order:
1.
That the judgment obtained against the defendant/applicant on the 9th
day of March, 1987 upon default of
appearance be set aside;
2.
An order setting aside the service on the defendant of the writ of
summons and the statement of claim in this action;
3.
An order striking out the writ of summons and statement of claim in
this action with substantial costs;
4.
An order for stay of execution and the judgment entered in this suit
pending the determination of this application.
The only ground
stated in the schedule as the grounds for this application is:
(a)
That the condition precedent to the exercise of jurisdiction by the
court to entertain this action and/or to enter judgment was not fulfilled
namely that the writ of summons issued and served did not specify on it the
mandatory 30 days allowed between the service of the writ and the entry of
appearance 15 provided under section 99 of the applicable Sheriffs and Civil
Process Act Cap. 189 Laws of the Federation 1958.
The facts
deposed to in the supporting affidavit sworn by Richard
Kanayo Dike did not go beyond this ground. I refer to paragraph 3
which reads:
That I am
informed by Tunde Olatunji,
a counsel in the firm of Kola Awodein & Co., and
I verily believe him that a writ of summons must give a defendant at least
30 days within which to enter an appearance where it is to be served out of
the state from which it is issued and that the writ of summons served on the
defendant in this case only provided for eight days within which to enter
appearance.
The issue of the
writ not being endorsed for service outside jurisdiction of the State High
Court was never raised in the motion before the high Court. Neither was the
issue of want of leave of the Judge to issue the writ for service outside
jurisdiction raised.
The motion was
filed on 13th of March, 1987. What happened to this motion there is no
evidence or mention in the record of proceedings before this Court. It
appears it was abandoned. The judgment of the High Court sought to be set
aside was delivered on the 9th day of March, 1987. The motion for final
judgment was filed on the 6th of February, 1987. The application was for
(i)
an order for final judgment against the
defendant as per the plaintiff's writ of summons and statement of claim
filed and served on the
defendant in default of filing a statement of defence;
(ii)
an order for the defendant to pay
substantial costs and
(iii)
for any such order or orders as this
Honourable Court may deem fit to make in the circumstances.
The particulars
of plaintiff's claims were
1st Plaintiff:
2nd Plaintiff:
The damages were
suffered as a result of the negligent and reckless driving of defendants'
vehicle No. 0Y343DY by the
defendant's/respondent's servant or agent.
The
minutes of the judgment of Kotun,
J., is not part of the record but there is enrolment of the judgment
exhibited the relevant part of which reads:
Defendant/respondent shall pay in default of the statement of defence the
sum of
Also
defendant/respondent is adjudged in default to pay a sum of
The judgment was
therefore delivered in default of statement of defence not in default of
appearance.
The appellant,
as indicated earlier, did not proceed with his motion to set aside the
judgment. Instead, the company filed a notice with two grounds of appeal.
1.
The learned trial Judge erred in law in entering judgment in favour
of the plaintiff in this case when he had no jurisdiction to entertain the
entire proceedings:
Particulars
(a)
That the condition precedent to the exercise of jurisdiction by the
court to entertain the action and/or to enter judgment was not fulfilled,
namely, the writ of summons issued and served did not specify on it the
mandatory 30 days al-lowed between the service of the writ and the entry of
appearance as required under section 99 of the applicable Sheriffs and Civil
process Act Cap. 189 Laws of the Federation 1958.
(b)
(Only an argument not particulars)
2.
The learned trial Judge erred in law in entering judgment in favour
of the respondent upon a void and incompetent writ.
Particulars
(a)
That the writ upon which judgment was entered being one for service
out of the jurisdiction of the court was not endorsed as provided for by law
and did not comply with section 97 of the applicable Sheriffs and Civil
Process Act Cap. 189 Laws of the Federation 1958.
(b)
A court is without power to entertain or enter judgment upon a void
and incompetent writ.
It is observed
that nowhere in the proceedings before the High Court was the question of
the writ issued and served being served in violation of the provisions of
sections 97 and 99 of the Sheriffs and Civil Process Act Cap. 189, Laws of
the Federation 1958 raised. Neither was any such
question dealt with in the judgment of the High Court.
On the 16th day
of June, 1987, the appellant filed an Originating motion for an order of the
Court of Appeal -
(i)
to set aside the judgment delivered
against the appellant on 9th March, 1987;
(ii)
to set aside the service on the defendant
of the writ of summons and the statement of claim in this action;
(iii)
to strike out the writ of summons and the
statement of claim;
(iv)
to stay the execution of the judgment.
Alternatively,
an order
(v)
to stay the execution of the judgment
pending the hearing and determination of the appeal lodged against it.
There is no
evidence on record that this motion was heard. In any event, prayers (i),
(ii), (iii), and (iv) could not have been
entertained. Only the alternate prayer - for stay of execution could have
been entertained.
However, the
Court of Appeal heard the appeal and allowed it in part by setting aside the
damages awarded and ordering that the issue of damages should be gone into
as a separate issue by another Judge of the High Court. Subject to this, the
Court of Appeal dismissed the appeal. Against this decision the
defendant/appellant has appealed. The plaintiffs/respondents did not cross
appeal.
The
grounds of appeal has earlier been set out in
this judgment. I find that the grounds of appeal do not arise from the
decision of the High Court which went on appeal to the Court of Appeal.
Leave was not obtained to raise the issues in those grounds as the issues
were never raised before the High Court. Evidence was not led on them. It is
therefore strange that the Court of Appeal allowed the appellant to raise
the issues. Although it ruled against the appellant on the ground of waiver,
it should have stopped the appellant from raising them. The court also
allowed itself to be drawn into consideration of whether there is or is not
a conflict between the case of Skenconsult
v. Secondy Ukey
(1981) 1 S.C. 6 and Oyakhire v
Ezomo (1985)1 N.W.L.R. (Pt.2)
195.
It is not the
business of the court to embark on a consideration of a conflict between one
decision of the Supreme Court and another decision of the Supreme Court when
issues warranting the consideration of the conflict are not raised in the
grounds of appeal and when the facts of the two cases alleged to be in
conflict are totally different from one another. Caution is a virtue that
should not be dispensed with at any stage of the proceedings before any
court. Dicta should not be taken and read out of context.
The principles
on the question of raising new points not previously raised in the trial
court or Court of Appeal, i.e. courts below, are well settled. They include
the requirement of leave of court to raise them and the satisfaction of the
court that no further or additional evidence is required on the issues to be
considered. There is of course a total bar against new points designed to
establish a case different from the one considered in the courts below.
I refer to the
following cases in which these guiding principles have been settled
(1)
Akpene v. Barclays Bank of
Nigeria Ltd. (1977)1 S.C. 47,
(2)
Samue1 Fadiora
v. Festus Gbadebo (1978) 3
S.C 219, 247, 249;
(3)
Agnes Debora Ejiofodomi v. H. C.
Okonkwo
(1982)11 S.C.
74;
(4)
P.D. Abaye v.
Ofili & Anor.
(1986)1 SC.231, 234,235; (1986)1
N.W.L.R. (Pt. 15) 134,
(5)
Attorney General of Oyo State v. Fairlakes Hotel
Ltd.
(1988) 5
N.W.L.R. (Pt.92) 1.
In
Ejiofodomi v.
Okonkwo (supra) the Supreme Court refused to allow new points
which would establish a totally different case from the one considered in
the courts below to be taken.
In the instant
appeal, when the appellant entered appearance in the court below on being
served with the writ, he failed to raise any issue concerning the validity
of the writ or the service of the writ of summons under sections 97 and 99
of the Sheriffs and Civil Process Act Cap. 189 Laws of
the Federation, 1958. The appellant also failed to raise the issue
when the company was served with motion for judgment. The two issues
therefore cannot arise in the appeal to the Court of Appeal and in the
appeal to this Court because there is no decision on them against which a
complaint can be made. The provisions of sections 97 and
99 of the Sheriffs and Civil Process Act, Cap. 189 Laws of the
Federation of Nigeria 1958 read as follows:
97.
Every writ of summons for service under this Part out of the state or
part of the Federation in which it was issued shall, in addition to any
other endorsement or notice required by the law of such state or part of the
Federation, 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 …….. States (or as the case may be)
99.
The period specified in the writ of summons for service under this
Fart as specified 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 and if a longer period is prescribed by the rules of the court
within which the writ of summons is issued, not less than that period.
To effectively
raise the issue of non-compliance with any of the above provisions requires
the support of evidence. See
Akpene v. Barclays Bank Ltd. (supra);
Fadiora v. Gbadebo (supra).
There must be evidence that the writ served on the appellant was not
endorsed for service in Oyo State as required by section 97 of the Sheriffs
and Civil Process Act Cap. 189 Laws of the Federation of
Nigeria 1958. There must be evidence that the appellant was required
to appear in court within a period of not less than 30 days after service.
The words of the statute in this regard are clear and unambiguous and must
be given their ordinary literal meaning.
Signing a memorandum of appearance
is different
from being required to answer before the court to the writ of summons. It is
not appearance before the court to answer the claim on the writ. It is in
answer to the order in the writ that "you do cause an appearance to be
entered for you in the action …….." The method of entering an appearance is
by filling a form headed "Memorandum of Appearance." Section 99 has
therefore not been breached.
There is no
evidence before the Court that the writ served on the appellant was not
endorsed for service at Ibadan in Oyo State, to establish a breach of
section 97.
It was for the
reasons set out above and the detailed reasons for judgment delivered a
short while ago by my learned brother, Oputa,
J.S.C., that I dismissed the appeal.
Reasons for Judgment delivered by
Augustine
Nnamani.
J.S.C.
On the 27th
February, 1989, this appeal came before us. Having read the records of
proceedings, and after hearing learned counsel
for both parties, I dismissed it. I gave an indication that I would give my
reasons for that judgment today. I now do so.
I had before now
had the privilege of reading in draft the lead reasons for judgment of my
learned brother, Oputa.
J S.C as well as the
concurring reasons for judgment by my learned brother,
Agbaje. J.S.C.
I entirely agree with those reasons and adopt them as my own. I wish only to
say that I too see no conflict between the decisions of this court in
Skenconsult (Nig) Ltd.
And Anor. v.
Ukey (1981) 1 S.C. 6 and
Ezomo v. Oyakhire
(1985) I N.W.L.R. (Pt.2)
195, each decision having been made on its own peculiar facts.
Reasons for Judgment delivered by
Adolphus
Godwin Karibi-Whyte.
J.S.C.
When on the 27th
February, I 989, I summarily dismissed the appeal of the appellants, I
indicated that I will give my reasons for doing so today.
I have read the
reasons given by my learned brother, Oputa.
J.S.C,.
in the lead judgment and those of my learned
brother, A.G.O. Agbaje.
J.S.C. I am in such a
total agreement with these judgments that I consider it superfluous to state
my own reasons, I prefer therefore to say in the interest of brevity that I
agree with them.
I therefore do
not wish to add to the reasons so ably, forcibly and lucidly stated in the
lead judgment of my learned brother Oputa,
J.S.C.
Reasons for Judgment delivered by
Abdul Ganiyu
Olatunji Agbaje.
J.S.C.
On 27th
February, 1 dismissed the appellant's appeal. I indicated then that I would
give the reasons for my decision today. I now proceed to do so.
The facts
leading up to the appeal now before us are in a small compass and they are
as follows.
In June, 1988
the respondents, as plaintiffs sued the appellant, the defendant in the
action, in an Ikeja High Court Lagos State for
The defendant
company through its solicitors Bamidele
Aiku & Co. of 22, Dugbe
Market Road, Abusi Green House,
Ibadan entered an appearance in the action in
September, 1986, after the writ of summons and the statement of claim had
been served on it at Ibadan. It is noteworthy that the writ of summons did
not carry any return date. Seeing that the defendant
filed no statement of defence to the plaintiffs' statement of claim, the
latter in February 1987 applied by summons for an order for final judgment
against the defendant as per their writ of summons in default of a statement
of defence. The return date on the summons for final judgment in
default of defence under Order 10 Rules 1,2 and 7
of the High Court of Lagos State (Civil Procedure) Rules 1972 was 9th March
1987. The summons for final judgment was duly served on the
defendant/company through its solicitors Bamidele
Aiku & Co., Ibadan. On the return date,
9/3/87, there was no
appearance for the defendant. On the same day, the learned trial Judge
entered judgment for the plaintiffs for general and special damages on their
claim against the defendant. Nothing turns on the quantum of damages in this
appeal. Thereafter the defendant moved the trial court for an order setting
aside the judgment in default of defence. The application failed. Nothing
turns on this application in this appeal. Thereafter the defendant appealed
against the whole of the decision of 9/3/87 to the Court of Appeal, Lagos
Division, contending inter alia, that the learned trial Judge had no
jurisdiction to enter judgment for the plaintiffs, because of non compliance
with the provisions of sections 97 and 99 of the Sheriffs and Civil Process
Act Cap. 189 Laws of the Federation of Nigeria 1958.
The appeal failed. Ademola
J.C.A., in his lead judgment in the case said on the issue of
jurisdiction of the trial court to enter judgment for the plaintiff
vis-a-vis the
alleged non-compliance with section 97 and 99 of the Sheriffs and Civil
Process Act:-
It is my view
that the first question for determination in the appellant's brief which is
the effect of non-compliance of the writ filed with sections 97 and
99 of the Sheriffs and Civil Process Act resolves itself into which of the
two decisions of the Supreme Court I should apply in this matter. Is it the
Skenconsult's case which says that
both the writ and the proceedings following it is a nullity or the
Ezomo's case which treated such
non-compliance as irregularity which can be waived.
Stated thus, it does appear to me that the question arising out of this
formulation would be whether the Skenconsult's
case and the Ezomo's case are
in conflict with each other.
Mr.
Awodein, learned counsel for the appellant has
contended in his brief of argument that there is a conflict in the two
decisions of the Supreme Court whereas Mr. Tinubu,
learned counsel for the respondents has submitted that there is no conflict
whatsoever between the decisions. I cannot subscribe to the respondents
submission.
So,
Ademola J.C.A.,
thought the two decisions were in conflict. After examining the decisions of
this court in the two cases he said:-
I shall follow
the decision in Ezomo's case in
preference to the Skenconsult's
case for reasons which I have endeavoured to outline above.
I therefore hold
that the writ filed in this Suit is not a nullity for non-compliance with
section 99 of the Sheriffs and Civil Process Act. That the
filing of memorandum, of appearance on behalf of the
appellant constitute an act of waiver to any irregularity occasioned
by the non-compliance. Also constituting an act of waiver is the appellant
acceptance of service of the judgment summons and his failure to defend or
to ask for leave to defend same.
On this same
point, Mohammed J.C.A., said:
I think there is
need for the Supreme Court to look into the two judgments;
Skenconsult Nigeria Limited and
Another v. Ukey
(1981)1 S.C. 6 and Ezomo v.
Oyakhire (1985) 2 S.C. 260 with a view to
resolving the apparent conflict in the two decisions. I do not wish to add
more to the lead judgment of Ademola
J.C.A., but I hold a reconsidered (sic) in order
to finally establish whether a writ served but in breach of Section 99 of
the Sheriffs and Civil Process Act, is a nullity and the failure to comply
with the section means that there has been no service.
For his part,
Akpata, J.C.A., did
not appear to subscribe to the view that the decision in
Ezomo's case is in conflict with that in
Skenconsult's case. For having referred to what
Nnamani, J.S.C.,
said in
Skenconsult to which I too will refer presently he said:-
Proceedings
embarked upon in the absence of the defendant who was served with a writ of
summons not in accordance with section 99 would be null. It can however be
set aside on the application of the defendant where meet (sic) the
requirement of Section 99 and he enters appearance in accordance with order
10, as if the writ has been properly endorsed or takes part in the
proceedings as in
Ezomo's case, he cannot be
heard to complain of the breach of Section 99.
The defendant
has now lodged a further appeal to this court on the point of the
jurisdiction of the trial court to entertain judgment for the plaintiff in
the circumstances of this case, having regard to sections 97 and 99 of the
Sheriffs and Civil Process Act. The issues arising for determination in this
appeal are, according to the defendant, as follows:-
The fundamental
issues for determination in this appeal can be formulated as follows:
What is the true
and proper effect of a breach of Section 97 and 99 of the Sheriffs and Civil
Process Act, Cap. 189, Laws
of the Federation 1958?
Is there a
conflict between the Supreme Court cases of
Skenconsult v. Ukey (1951)1 S.C. 6
and Ezomo vs.
Oyakhire (1985)1 N.W.L.R. (Part 2)195
as regards the breach of Section 99 of the Sheriffs and Civil Process Act.
From this main issue must necessarily arise two corollary issues,
namely;
Whether the
concept of waiver is applicable in the instant case?
If the answer to
issue 4.4 is in the affirmative whether the appellant had waived his right
in this case by entering an appearance.
Whether
Ezomo v.
Oyakhire was rightly decided ?
The plaintiff
appears to agree to the issues as formulated by the defendant.
It is because of
the suggestion in the judgments of Ademola and
Muhammed JJ .C.A.,
and in the brief of arguments for the defendant/appellant that there is a
conflict in the decisions of this court in
Skenconsult’s case and Ezomo’s
case that I have decided to examine very closely the decisions in the
two cases vis-a-vis
the point at issue now. Before I do so, I shall set down the provisions of
sections 97 and 99 of the Sheriffs and Civil Process Act. 'I'hey
say:-
'.97.
Ever writ of summons for service under this Part out of the Region or
part of the Federation in which it was issued shall, in addition to any
other endorsement or notice required by the law of such Region or part of
the Federation. have endorsed thereon a notice to
the following effect (that is to say)
This summons (or
as the case may be) is to he served out of the
……. Region (or as the case may be) …. and in the
…. Region (or as the case may be).
99.
The period specified in a writ of summons for service under this Part
as the period within which a defendant is required to answer before the
court to the writ of summons shall be not less than thirty days after
service of the writ has been effected, or it 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.
I should here
also refer to item 56 on the exclusive legislative list which puts
legislations relating to
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 a court of law established by the
House of Assembly of that State.
exclusively
in the hands of national assembly.
So part vii of
the Sheriffs and Civil Process Act an Act of the National Assembly wherein
sections 97 and 99 appear and which provides for the service of the process
and enforcement of the judgments of the courts of the States throughout
Nigeria is concerned only as it says with service of process and enforcement
of judgments. It has nothing to do with a writ of summons as an instrument
for commencing an action, a matter which is within the exclusive legislative
competence of a State House of Assembly, see section 239 of the Constitution
of the Federal Republic of Nigeria 1979.
Having said that
much I can now start with an indepth examination
of Skenconsult's
case and Ezomo's
case.
In
Skenconsult's case the lead judgment, to which
the other learned justices of this court in the case agreed, was delivered
by Nnamani, J.S.C.
In order to put the decision in this case in its proper perspective, it is
absolutely necessary to state the issues in the case, the facts giving rise
to these issues, the competing contentions of counsel as regards these
issues, then the salient points of the decision in the case and finally the
decision itself. On all these aspects of the case I will perforce draw from
the judgment of Nnamani,
J.S.C.
I shall state
briefly the facts leading up to the case in this court. One Godwin
Sekondy Ukey as
plaintiff sued Skenconsult (Nigeria) Ltd. and
Lars Pool Skensved as defendants in a Benin High
Court, Bendel State, claiming the following
reliefs:-
1.
A declaration that in terms of the Memorandum and Articles of
Association of the defendant company, the plaintiff as a Co-promoter and the
only living Nigerian Subscriber to the said Memorandum and Articles of
Association of the defendant company and also its Deputy Chairman/Director
is jointly entitled with 2nd defendant to the administration and
management of the affairs of the defendant company and in particular to the
operation of the Banking accounts of the defendant Company.
………………………………………………………………………………………………
4.
A declaration that in terms of the Memorandum and Articles of
Association of the defendant Company, the 2nd defendant is not
competent to release or give valid discharge for debts or other obligations
owing and due to the defendant company, and in particular that the undated
Deed of Release executed by the 2nd
defendant purportedly on
behalf of the defendant company with Nigerian National Fish Company Limited
is null and void and of no effect whatsoever.
………………………………………………………………………………………………
………………………………………………………………………………………………
11.
A declaration that a decision taken at the Board meeting of the
defendant company on Tuesday 12th
September 1978 adopting and accepting the accounts of the company as
presented by the 2nd defendant and audited by Messrs
Osunbade Okiti and
Co. with its apparent inaccuracies and discrepancies, is invalid and of no
effect whatsoever.
The Writ was
dated 13th November 1978, and the return date as endorsed thereon
was 24th November 1978. The address of the 1st defendant was
stated as 7, Chapel Street, Yaba, Lagos and that
of the 2nd defendant as 3A
Oduduwa Way, G.R.A.,
Ikeja Lagos State. In
effect, the writ of summons was endorsed for service outside of
Bendel State. On 7th
December, 1978, the plaintiff
filed one motion and on 11th December 1978 another motion, both
of them against the defendants. The endorsement for service on the two
motions was as follows:-
For Service on
the
1st
and 2nd defendants/respondents through their Solicitors, E.
Ometan & Co. No 11,
Pearse Street, Off Tejuoso Street,
Surulere, Lagos.
The two motions
came on for hearing before Ekeruche, J. (as he
then was) on 15th December l978. The
record of the proceedings of that day read as follows:-
Plaintiff
present.
Dr. Enemeri for him, defendants absent,
served. Oduko
for Ometan for 1st defendant.
"...…. Miss Oduko says she does not oppose the
motion.
The learned
trial Judge then made the following two orders on the notions on the same
day:-
(a)
That 42 Refrigerated containers stationed at the Gate House, Parking
Site Koko, Bendel State belonging to the 1st
defendant company (i.e. 1st appellant in these proceedings) be
sold at once by the respondent by private treaty at any price which he can
reasonably obtain for them and the proceeds of sale, after deducting the
expenses thereof, be paid into court to abide the event in the action.
(b)
An injunction to restrain the defendants (appellants) from doing
various acts concerned with the management and administration of the 1st
appellant company. In fact it was an order to restrain the
1st appellant
company and to restrain the 2nd appellant from carrying on
various functions as Managing Director.
The defendants
being aggrieved at these two orders applied by a motion filed in a
Bendel State High Court, Benin, dated 2nd
January 1979 for the following reliefs:
(a)
Setting aside the order
made by this Honourable Court on 15th
day of December, 1978 and
service of the writ of summons (and) the motion on Notice dated 11th
December, 1978 on the ground that such service was not in accordance with
the provisions of the Sheriffs and Civil Process Act and also because the
court has no jurisdiction to entertain the plaintiff's claim.
(b)
Setting aside the aforesaid order on the alternative ground that
there was a misrepresentation to the court in regard to the stand of the
above named defendants/applicants on the motion dated 11th
December, 1978
The motion came
on for hearing before Maidoh, J., on 1st
February, 1979. He gave a considered ruling on it on 1st
March, 1979. He declined to
set aside the orders of Ekeruche, J. (as he then
was) of 15/1 2/78 because, according to Maidoh)
J., he had no jurisdiction to set aside the order of a brother Judge of
co-ordinate jurisdiction. There was an appeal by the defendants to the Court
of Appeal, Benin Division. The appeal failed. The Court of Appeal endorsed
the view of Maidoh, J., as to his lack of
jurisdiction to set aside the orders of Ekeruche,
J. Then there was a further appeal by the defendants to this court, the 1st
defendant, the 2nd defendant and the plaintiff being in this
court the 1st appellant, 2nd appellant and the
respondent respectively. There were two main grounds upon which the
appellants relied in this court. I am here concerned with only one of the
grounds which may be stated as follows in the very words of
Nnamani. J S.C.: -
In urging your
Lordships to allow the appeal and set aside the two orders, Chief Williams,
S.A.N., learned counsel for the appellants,
relied on two main grounds:-
(1)
He contended that the defendants i.e. Appellants were not properly
served and represented before
Ekeruche,
J. He argued that the 2nd appellant was not served at all
while 1st appellant was not served as required by law. Referring
to the writ of summons, he submitted that where the originating writ of
summons is issued in one state for service in another state the law requires
that there should be a period of at least 30 days between the date of
service and the date that the defendant is required to appear in court. He
referred to the Sheriffs and Civil Process Act (a Federal law). Chief
Williams stated that when the case came before
Ekeruche,
J. on 24th
November 1978 the 30 days mandatory period for return of process under the
provisions of Section 99 of the Sheriffs and Civil Process Act had not
expired the writ having been issued on the 13th
November, 1978. On the respondent's motions pursuant to which the
controversial orders were made, service on the appellants, he said, was
purported to be effected through "their Solicitor" E.O.
Ometan. This was inspite
of the averment in the affidavit of Mr. Lars Skensved,
2nd appellant,
that E. O. Ometan and Miss
Oduko had no instruction from the 1st appellant or from
himself to appear for the appellants - an averment which was never denied by
Mr. Ometan. On the issue of appearance, Chief
Williams drew the attention of the court to the fact that throughout all the
appearances in these proceedings before
Ekeruche,
J., up to the date on which the orders in issue were made, there was
no appearance by any counsel on behalf of the 2nd appellant. The
court endorsements, he said, showed that Miss Oduko
appeared for 1st appellant holding brief for Mr.
Ometan. This he argued can hardly be appearance
for 1st appellant in view of the averment of Mr.
Skensved referred to above.
In his reply,
learned counsel for the respondent, Dr. S.S.G.
Enemeri, submitted as fellows:-
(1)
On the issue of service of the writ, he claimed that it was served on
the appellants. He conceded that the return date on the writ did not comply
with the Sheriffs and Civil Process Act but he asked the court to regard it
as an irregularity arising from administrative problems in the High Court
Registry. He thought that it did not invalidate the writ ipso facto
and did not invalidate the service. He submitted that the endorsement as to
service is binding on the parties. He was of the view that even if the
return date was less than 30 days it did not matter. He submitted that
Section 99 of the Sheriffs and Civil Process Act dealt with time to answer
the summons, not service. He conceded, however, that the writ was not
properly endorsed. On the motions, learned counsel for the respondent argued
that section 99 of the Sheriffs and Civil Process Act did not apply. He
conceded that throughout there was no appearance by counsel for 2nd
appellant but claimed that he served
the motion on appellants through Mr. Ometan
because he thought that Miss Oduko who appeared
during the mention of the suit holding Mr. Ometan's
brief was appearing for both defendants.
As regards these
submissions Nnamani, J.S.C.,
held as follows:-
(1)
Where a writ of summons originates in one State for service in
another State it is mandatory that there should be a period of at least 30
days between the date of service and the date that the defendant is required
to appear in court. See Sections 98, 99, Cap. 189, Vol. 6, Laws of the
Federation of Nigeria, 1958
(2)
With respect to Section 99, I do not think that that section can be
interpreted as referring to a writ of summons
for
service. All that it is
concerned with, in my view, is the period within which the defendant is to
answer to the writ of Summons. In this I seem to agree with learned counsel
for the respondent. But the matter does not rest there. The return date was
less than the 30 days prescribed by Section 99 and was clearly in breach of
it. In my view the proceedings on 24th of November, 1978 were
premature and, by virtue of the mandatory provisions of Section 99 of no
effect. They must, therefore, be regarded as a nullity.
(3)
There can be no argument at least in respect of the 2nd
defendant that he was neither served with the motion papers nor was he
present in court on the date the controversial orders were made nor was he
represented by any counsel. Learned counsel for the respondent had argued
that Section 99 (and I should imagine Section 101) of the Sheriffs and Civil
Process Act does not apply to motions. I do not agree with this having
regard to the definition of 'writ of summons' in Section 95 part VII
of the Sheriffs and Civil Process Act. It is defined thus:
Writ of summons
includes any writ or process by which a suit is commenced or of which the
object is to require the
appearance of any person against whom relief is sought in a suit or who is
interested in resisting such relief
If the motion
papers are to be served outside Bendel State in
another State of the Federation as was the case here, even though service
was through a Solicitor, I agree with Chief Williams that Sections 98, 99
and 101 of the Sheriffs and Civil Process Act will apply.
(4)
The learned counsel for the respondent in the course of his argument
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 and go to the question of the competence and the jurisdiction of the
court which pronounced the orders sought to be set aside. I may add that
even if they were irregularities mere acquiescence of the parties (as
claimed by learned counsel for the respondent) cannot give the court
competence or jurisdiction.
(5)
In the instant case, the appellants were not properly served in law
with the writ of summons. They were neither served with the motions pursuant
to which the two orders were made nor were they present or represented by
counsel when the said orders were made. My Lords, I am of the view that on
all these grounds the first arm of Chief Williams' argument must succeed and
the orders ought to be set aside.
And the order
made by Nnamani, J.S.C.,
in the case was as follows;-
My Lords, for
all the reasons given above, I am of the view that this appeal ought to
succeed. The appeal is accordingly allowed. The ruling of
Maidoh,
J. dated 1st March 1979 and the judgment of the Federal
Court of Appeal Benin Judicial Division dated 22nd May, 1980
(Omo
Eboh, Ete,
Okagbue,JJ.C.A.)
are hereby set aside. I hereby further order that the two orders made by
Ekeruche,
J., on 15th December, 1978, which orders, were enrolled
and drawn in the Bendel State High Court, Benin
on the same 15th December, 1978 be and are hereby set aside. The
orders for costs are as contained in the judgment of my Lord,
Sowemimo,
J.S.C.
It appears clear
to me from the analysis I have made of the judgment of
Nnamani, J.S.C., in
Skenconsult's ease, that the decision was concerned essentially with
the interlocutory proceedings initiated by motions dated 7th and
11th December, 1978 and
which culminated in the two orders of 15/12/78 made by
Ekeruche, J., as he then was. It was the view of
Nnamani, J.S.C., that the service of the
two motions in order to be proper and effective on the appellants in the
case who were resident outside of the region where the motions emanated had
to comply with the provisions of sections 98, 99 and 101 of the Sheriffs and
Civil Process Law, particularly section 99. It was common ground that there
was non-compliance with that section. It was the view of
Nnamani, I S.C., that the breaches in the case
he was dealing with of the regulations relating to service and appearances
were not mere irregularities but fundamental defects which went to the
question of the competence and the jurisdiction of the court which
pronounced the orders sought to be set aside.
As regards the
writ of summons itself dated 13th November, 1978 with 24th
November 1978 as the return date, which was less than the 30 days prescribed
by section 99 of the Sheriffs and Civil Process Act, what
Nnamani, J.S.C.,
said was again in his own words, "the proceedings on 24th of
November 1978 were premature and, by virtue of section 99 of no effect. They
must therefore be regarded as a nullity." It would appear that on 24/11/1978
the case was called in court and Mr. Ometan
announced his appearances for the 1st defendant. It would also
appear that the writ of summons and the motions papers were served on Mr.
Ometan. But there was in the case the following
affidavit evidence from the 2nd
appellant and which was not
denied by Mr. Ometan:
That Mr.
E.O. Ometan and Miss
Oduko had no instruction from either the
defendant company or myself to appear on our
behalf. On the contrary, E.O.
Ometan who received service of the summons and
Motion papers was instructed by mc not to appear either on behalf of the
company or myself, as we had retained the services of other lawyers.
Chief Rotimi Williams,
S.A.N., and Mr. Dickson Osuala for the 1st
defendant and Kayode
Ogunnekan and Solomon Asemota for the 2nd
defendant.
It is in the
light that neither the 1st defendant nor the 2nd
defendant appeared in court on 24/11/78 that the view of
Nnamani, J.S.C.,
that the proceedings of 24/11/78 were a nullity must in my opinion be
assessed.
I have stated
the salient points in
Skenconsult's case. As
regards the case of Ezomo v.
Oyakhire, I need do no more than refer to
the following passages in the judgment in the case in order to decide
whether or not the decision in that case conflicts with that in
Skenconsult's
case.
Aniagolu,
J.S.C., in the lead judgment in the case said
inter alia:-
As respects the
point that S.99 of the Sheriffs and Civil
Process Act was not complied with as regards service and
return date, the same reply
applies on the freedom of a party to waive his procedural right arising out
of a rule enacted for his interest.
S.99
reads:
99.
The period specified in a writ of summons for service under this Part
as the period within which a defendant is required to answer before the
court to the writ of summons shall be not less than thirty days after
service of the writ has been effected, or if a longer period is prescribed
by the rules of the court within which the writ of summons is issued, not
less than that longer period.
By contesting
the case to the full, on the merits, without earlier taking preliminary
objection before trial, the appellant must be deemed to have waived whatever
right he had under that section.
On the same
point Karibi-Whyte, J.S.C.,
said;-
Consequently the
most effective remedy of the defendant is not to enter appearance and to use
the non-compliance as a ground for setting aside the service of the writ of
summons. This was the procedure adopted by the defendants and endorsed by
this court in
National Bank (Nig.) Ltd. v. Shoyoye (supra)
and
Skenconsult v. Sekondy
Ukey (supra). In each of these cases
the issue was raised by preliminary objection. The service of the writ of
summons was in each case set aside. Service of writ of summons outside the
jurisdiction without leave of the Judge or court,
does not render the writ itself a nullity. All that is affected is the
service which is irregular and can be set aside. In such a situation, the
defendant entering appearance on the strength of the irregular service
constitutes a waiver of the irregularity. - See
Ariori & ors. v. Elemo & ors.
(1983)1 S.C. 13. in
Allen v. Quigley, 12 Ir. L.T. 46, (cited at
p.47 in the Supreme Court Practice 1979,
vol.1, Ord. 6/2/18) it was also stated that
appearance is a waiver of the irregularity. Admittedly defendant in
paragraph 1 of his statement of defence indicated that the court had no
jurisdiction; and in his motion for dismissal of the action expressly relied
on this provision, but his filing a statement of defence is by itself a
waiver of his right to ignore the writ of summons. His appearance is
submission to the jurisdiction. As was stated in
Ariori & Ors. v.
Elemo & Ors (supra) at pages 48-49 per
Eso, J.S.C.
The concept of
waiver must be one that presupposes that the person who is to enjoy the
benefit or who has the choice of two benefits is fully aware of his rights
to the benefit or benefits, but he either neglects to exercise his right to
the benefit, or where he has a choice of two, he decided to take one but not
both - See Vyvyan v.
Vyvyan 30 Bear, 65 as per John
Romilly, MR at p.74.
It seems clear
from the circumstances of the appellant that he waived his right not to
appear in response to the service on him of the writ of summons. I do not
think he is entitled to complain any longer about its being defective.
I find no
difficulty in arriving at the conclusion that in
Ezomo v. Oyakhire,
this court recognised it that service of the writ of summons outside the
jurisdiction of the region where it emanated would be set aside if there was
non-compliance with the requisite provisions of s.99
of the Sheriffs and Civil Process Act in effecting its service. The case
however decided it that for one aggrieved at non-compliance with the said
provision to avail himself of this remedy, there
must be nothing on one's part like appearance in the action or contesting
the case to the full on the merits without any objection. In the latter case
one will be deemed to have waived whatever right one might have had under
that section.
Skenconsult's
case is an authority for the proposition, as I can gather from the analysis
of the case I have made, that any proceedings subsequent to a defective
service of a writ of summons or other process having regard to section 99 of
the Sheriffs and Civil Process Act will be set aside, when an application to
do so is made to a court. What remains to be seen is whether that case also
decides it that the proceedings will be set aside in any event and it does
not matter that the party aggrieved at non-compliance with the statutory
provisions had entered an appearance in the case or had taken any other step
in the case or had even contested the case to the end without any objection.
In short has
Skenconsult's case decided it that there is no room for the
application of the principle of waiver once what was involved was
non-compliance with S .99 of the Sheriffs and Civil Process Act as regards
service of the writ of summons? If it says the latter then in my view it
will be in conflict with the decision of this court in
Ezomo v. Oyakhire. The
question then is this; does it?
In the first
place waiver was not an issue in
Skenconsult's case, so it
could not have formed the basis of the decision in the case. The decision in
Skenconsult's
case proceeded on the footing as I have shown earlier on in this judgment
that the two aggrieved parties neither of them appeared in court at any
stage of the proceedings leading up to the orders complained of. It is true
Nnamani, J.S.C.,
whilst talking about irregularities amounting to fundamental defects in the
proceedings said mere acquiescence of parties cannot give the court
competence or jurisdiction.
In
Nwabueze v. Obi-Okoye
(1988) 10-11 S.C.N.J. 60 at 73 this court
held:-
Generally courts
exercise jurisdiction only over persons who are within the territorial
limits of their jurisdiction. (Re
Busfield (1886), 32Ch.D.
123, per Cotton, L.J.,at
p.131; Re
Anglo African S.s. Co. (1886), 32
Ch.D., at p.350;
Berkley v. Thompson (1884-85)10 App. Cas. at
p.45; Ex. p. Blain,
re Sawers
(1879), 12 Ch. D. 522). It should be noted that except
where there is a submission to the jurisdiction of the court it has no
jurisdiction over a person who has not been served with the writ of summons.
The court has no power to order service out of the area of its jurisdiction
except where so authorised by statute or other rule having force of statute.
See Tassell v.
Hallen (1892)1 Q.B.
321; Matthews v. Kuwait Bechtel Corporation (1959) 2
Q.B. 57).
It appears clear
to me that Nnamani, J.S.C.,
in his judgment was concerned with a situation where a defendant has not
been served with a writ of summons, in which case the court would have no
jurisdiction over that defendant. He was not concerned with a case of
submission to the jurisdiction of the court by a defendant, a situation
which will give the court jurisdiction over that defendant. It is the latter
case with which the aspect of the decision of this court in
Ezomo v. Oyakhire
as regards the circumstances in which the benefits of the right accruing
to a defendant under S.99 of the Sheriffs and
Civil Process Act can be waived was concerned. In short, the decision of
this court in
Skenconsult's case has nothing to do with the issue of submission
to the jurisdiction of a court by a defendant outside the area of
jurisdiction of that court. It will be recalled that in
Skenconsult's case, the 1st
appellant/company in the case disassociated itself from the appearances by
counsel for it on 24/11/78 when the case was called in court after the
defective service and on 15/12/78 when the orders on the interlocutory
proceedings sought to be quashed were made. It is pertinent to note too that
the affidavit evidence from the 1st appellant company saying that
Mr. Emmanuel Ometan, the solicitor in question
had no authority to act for the 1st appellant Company was not
controverted. It is to be noted too that as
regards the 2nd defendant appellant, Nnamani,
J.S.C., made the point that he was not served
with motion papers nor was he present in court or represented by any counsel
on the date the controversial orders were made. In the end,
Nnamani, J.S.C.,
declared the controversial orders a nullity because again in his words "the
appellants were not properly served in law with the writ of summons. They
were neither served the motions pursuant to which the two orders were made
nor were they present or represented by counsel when the said orders were
made.”
So in
Skenconsult's
case there was no question of the party not properly served in Law with a
process of a court contesting the proceedings subsequent to the service
without demur as was the case in the case of Ezomo
v. Oyakhire. On the grounds on which this
court held in
Skenconsult's case that the trial court had no jurisdiction in
the matters before it, it is implicit that the question of submission to the
jurisdiction of that court did not arise.
The conclusion I
reach therefore is that the decision of this court in
Skenconsult's case is not
in conflict with the decision of this court in the case of
Ezomo v. Oyakhire.
I venture to add that the two cases are in line with the recent decision
of this court in Nwabueze v. Obi-Okoye
(supra). In my view both
Skenconsult's case and the
case of Ezomo v.
Oyakhire were rightly decided on the facts of each case. In the
case in hand all I need do is to apply the decision in both cases. The writ
of summons in this case was endorsed for service outside the territorial
limit of Lagos State from where it emanated. So the provisions of
S.99 of the Sheriffs and Civil Process Act which
provide that the period specified in such a writ of summons as the period
within which a defendant is required to answer before the court to the writ
of summons shall not be less than 30 days after service of the writ has been
effected will apply here. In the instant case the writ of summons did carry
a return day. And there is no allegation that it was called in court less
than 30 days after its service. The motion for judgment in default of
defence was dated 6th February, 1987. Its return date was 9th March, 1987.
It appears that the defendants were served with the motion on 11/2/87
through their counsel, Bamidele
Aiku, Esqr. This
means that the defendant had less than 30 days from 11/2/87 to answer in
court to the summons for judgment on 9/3/87. On the authority of
Skenconsult's
case the provision of section 99 will apply where service of the motion
papers outside the jurisdiction of the court from which it originates, as it
is here, is involved. But the same case acknowledges it that there is a
discretion in a court under section 101 of the Sheriffs and Civil
Process Act to take an application of this nature without compliance with
the prescribed period after service of the application and the return date,
provided the writ of summons has in the first place been served on the
defendant under the relevant provisions of the Sheriffs and Civil Process
Act and the defendant made no appearance to it. A fortiori the discretion
would apply where a writ of summons with a statement of claim had been duly
served on a defendant who subsequently entered appearance to that writ of
summons but failed to file a defence to the statement of defence. The latter
is the position here. The case of
Skenconsult also decides
it that even where there has been proper service of the writ of summons and
the defendant failed to appear in a proceeding of this nature, notice of
which was given to him, the Court by subsection 2 of section 101 has a
discretion on the application of the defendant to set aside, rescind or
annul any order it may have made and that the court would also presumably
exercise that discretion where there has been an erroneous impression in the
court that the defendant has been served but does not appear and an order
was in fact consequently made against him.
The defendant
moved the trial court to set aside the judgment in default of defence given
in his absence. The trial court refused to exercise his undoubted discretion
in the matter in favour of the defendant. That refusal to exercise that
discretion has not been questioned on appeal. Instead the defendant is
attacking the very judgment in default of defence on the ground of lack of
jurisdiction in the trial court by reason of noncompliance with the
provisions of Sections 97 and 99 of the Sheriffs and Civil Process Act.
It is apparent
from the submissions of counsel on behalf of the defendant both in the brief
of arguments for the defendant and at the hearing of the appeal, that it is
the contention of counsel for the defendant that noncompliance with the
provisions of either sections 97 or 99 of the Sheriffs and Civil Process Ad,
would render any subsequent proceedings in the case null and void in any
event. I have read and reread the brief of argument for the defendant. I
cannot find anyone suggesting in what respects the provisions of section 97
of the Act have not been complied with. In the facts leading up to this
appeal it would appear that as regards non-compliance with the provisions of
section 99 of the Sheriffs and Civil Process Act, the quarrel of counsel for
the defendant is not with the service of the writ of summons itself but with
the service of the summons for judgment in default of defence. Counsel for
the defendant does not dispute it that the summons for judgment in default
of defence was served on the defendant at Ibadan. It appears to be common
ground that at the hearing of the summons for judgment in default of
defence, the defendant was not present nor was it represented by counsel. So
it can be said correctly that the defendant did not contest the summons or
judgment. Besides these facts there was no indication in the defendant's
brief of arguments of lack of compliance with the provisions of section 99
of the Act in effecting the summons for judgment in default of defence dated
6/2/87 and heard on 9/3/87 on the defendants.
I have shown
earlier on in this judgment that in the circumstances of this ease it cannot
be said that in effecting the service of both the writ of summons and the
summons for judgment on the defendant there has been non-compliance with the
provisions of section 99 of the Act. And from the facts made available to us
in this appeal, I cannot say in what respect the provisions of Section 97 of
the Act have not been complied. In effect all the submissions of counsel for
the defendant as regards the consequences of non-compliance with the
provisions of sections 97 or 99 of the Act have been based on the hypothesis
that there has been such a non-compliance. The
facts and the law in this case do not bear out this hypothesis. Since our
courts do not deal with hypothetical cases this would have been enough
reason for dismissing the defendant's appeal in the lower court and in this
court.
On the
hypothesis that there has been non-compliance with the provisions of
sections 97 and 99 of the Act counsel for the defendant has submitted that
the proceeding and judgment in this case are null and void reliance being
placed heavily on
Skenconsult's case.
Counsel for the defendant has conceded it that the defendant through its
solicitor entered an appearance to the action after it had been served with
the writ of summons in the case. That on the authority of
Nwabueze v. Obi-Okoye
(supra) is clear evidence of submission to the jurisdiction of the court
in this case. I have shown that the decision in
Skenconsult's case does
not profess to apply to such a situation. It is
Ezomo v. Oyakhire (supra) that
is applicable. In my judgment Ezomo v.
Oyakhire was rightly decided. On that
authority the defendant can no longer be heard to say that it was not
properly served with the writ of summons in this case, if it entered an
appearance in the action.
As regards
however, the summons for judgment in default of defence, if I had found that
there had been non-compliance with the provisions of section 99 of the Act,
which as I have shown would apply to its service outside the jurisdiction of
the Lagos State High Court, I would have applied the decision in
Skenconsult's
case and declared the proceedings and judgment in the case null and void on
the ground of lack of jurisdiction in the trial court to take it because the
mandatory statutory provisions as to its service had not been complied with.
In the case of the proceedings on the summons for judgment there had been no
waiver of the prescribed period between the date of the summons and its
return day. So the decision in Ezomo
v. Oyakhire will not apply to it. But I have
held relying on
Skenconsult's case that the trial court in the exercise of its
discretion under section 101 of the Sheriffs and Civil Process Act could
take the summons for judgment in default of defence without compliance with
the provisions of Section 99 of the Act as to service once in effecting the
service of the writ of summons itself the statutory provisions as to its
service had been complied with, as is the case here.
It is for the
above reasons and the fuller reasons given in the lead judgment of my
learned brother, Oputa, I S.C., which I have had
the opportunity of reading in draft that I dismissed the appellants appeal
on 27th February, 1989.
Counsel
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