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In The Supreme Court of Nigeria

On Friday, the 24th February, 1989

S.C. 84/1986

 

Before Their Lordships

 

 

Augustine Nnamani

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Chukwudifu Akunne Oputa

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

  

Between

 

Martin Schroeder & Company

Of Hamburg, W. Germany, by their attorney Ade Ladega

.......

Appellant

 And

Major & Compay

.......

Respondent

 

 

Judgement of the Court

Delivered by

Wali, J.S.C.

 

On the 28th day of November, 1988 after hearing learned counsel for the appellant in elaboration of the Brief of Arguments in support of the appeal, and without calling upon learned Counsel for the Respondent, the appeal was summarily dismissed and reasons for doing so were reserved to today. I now proceed to give my reasons.

 

By a specially Endorsed Writ taken out in the Lagos High Court under the provision of Order 3 Rules 4 & 5 of the High Court of Lagos State (Civil Procedure) Rules, the appellant as plaintiff claimed from the Respondent as Defendant as follows:-

 

STATEMENT OF CLAIM

 

1.     The plaintiff drew a Bill of Exchange at Hamburg, Western Germany, dated 8th November, 1975, for DM24, 703.40 with interest at the rate of 1% per month payable to the plaintiff on 6th February, 1976, which said Bill the Defendant duly accepted.

 

2.     On or about the 6th February, 1976, the plain tif[s agents in Lagos, the Union Bank of Nigeria Limited, Yaba Branch, Lagos, presented the said Bill for payment but it was dishonoured by the Defendant.

 

Particulars

 

(i)    Principal sum of the Bill of Exchange                                  DM 24,703.40

 

(ii)    Interest at 1% per month from 6/2/76

        to 31/1/82(2,187) days                                                                      18,007.75

        Total amount due as at XXX

        31/1/82                                                                                         DM 42,711.15

 

And the plaintiff claims against the Defendant as acceptor:-

 

1.    The said sum of DM 42,711.15

 

2.    Interest at 1 % per month on the said sum of DM24,703.40 from the 1st day February, 1982. until the judgment debt is fully settled.

 

The writ was purported to have been duly served on the Defendant on 23/2/ 1982 at 2p.m. at his Address of Business, No.44 Burma Road, Apapa, by one Victor Akehika, a bailiff of the Lagos High Court as evidenced by the affidavit sworn to by him on 4th June. 1984.

 

The Defendant did not enter appearance to the writ within the time allowed, hence no defence was delivered. The plaintiff, in accordance with provision of Order 10 Rule 1 of the High Court of Lagos (Civil Procedure) Rules, applied to the Judge in Chambers for leave to sign judgment as per his writ. This was granted and judgment was entered for the plaintiff against the Defendant in the sum of N11,935.15 (the equivalent of DM42,711.15) plus interest at the rate of 1O/o per month on the sum of~6,903.09 from 1st day of February, 1982 until the whole debt is liquidated. The plaintiffwas also awarded ~183.00 costs and N14,209. 11 and N200.00 as incidental expenses.

 

The plaintiff, as judgment creditor, issued a writ of execution dated 21/9/84 which was executed on the Defendant on 26/11/84.

 

The Judgment debt, the costs and the incidental expenses were fully paid by the Defendant.

 

The Defendant, by a Motion on Notice dated 30th November, 1984 prayed for the following orders:

 

1.     an order setting aside the judgment of this honourable Court entered in favour of the plaintiff/Respondent on the 13th of July, 1984 in the sum of Nl1,935.15 plus interest at the rate of 1% per month on the sum ofN6,903.09 from 1st day of February, 1982 till payment and N183.0() costs;

 

2.     an order that the writ of execution dated 21st September, 1984 issued in this matter and executed on the 26th November, 1984, based on the said judgment be set aside.

 

3.     that the sum of N14,269. 11 and N200.()0 incidental expenses paid by the Applicant to D. Ade Ladega Esq. of Counsel to the Respondent in satisfaction of the said writ of execution be paid back to the Applicant.

 

The application was moved and argued on 23/1/85 and ruling on it was reserved to 8/2/85.

 

On the adjourned date, the learned trial Judge (Adeniji, J.) ruled that:

 

In the case in question, there was no endorsement to the Writ of Summons as required under Order 6, Rule 16. which is a special provision to deal with service of Writ of Summons etc. Its provisions must be strictly followed; and is not similar to the provision of Order 6, Rule 15 which is of general application.

 

In the instant case, the applicant therefore was not properly served in LAW with the Writ of Summons. He was neither served with the motion pursuant to which the two orders were made nor was he present or represented by Counsel when the said orders were made.

 

I am of the view that on all these grounds, the argument of his Counsel must succeed and the orders ought to be set aside.

 

He granted all the reliefs sought for by the Defendant in the application.

 

The plaintiff appealed against the Ruling referred to (supra) to the Court of Appeal, Lagos. In the unanimous judgment of the Court of Appeal delivered on 17/7/85, in which it meticulously dealt with all the issues raised and canvassed, it came to the conclusion that:

 

the judgment in default was rightly set aside by the court below and in the circumstance this appeal fails and it hereby dismissed ......................

 

The plaintiff have further appealed to this Court.

 

Henceforth, both the plaintiff and the Defendant will be referred to as the appellant and the Respondent respectively.

 

Briefs were filed and exchanged by the parties. After hearing Idigbe, learned Counsel for the appellant, and without calling upon learned Counsel for the Respondent, the appeal was summarily dismissed for want of any merit.

 

Three grounds of appeal were filed and contested. In the Brief of arguments filed by the appellants, the following three issues were formulated for determination :-

 

1.     Whether the only manner of proof of service of a Writ of Summons in Lagos State is by endorsement on the writ itself by the person who served the writ in accordance with Order 6 Rule 16 of the High Court (Civil Procedure) Rules.

 

2.     Was the learned Judge correct when he held that notwithstanding that there was an affidavit of service in terms of Order 6 Rule 15(b) before the Court, failure to comply with Order 6 Rule 16 was fatal to proof of service.

 

3.     Put in other words, is the auxiliary verb "shall" in Order 6 Rule 16 of the High Court of Lagos (Civil Procedure) Rules mandatory or directory' in its effect? What is the legal consequence of noncompliance with Order 6 Rule 16? Does it vitiate service or does it merely render the writ irregular in some material particular which irregularity can be cured by an affidavit under Order 6 Rule 15(1)(b).

 

In his brief of argument learned Counsel for the Respondent drew the attention of this Court that the appellant had, by implication abandoned ground 2 of the grounds of appeal hence that was not reckoned with and considered in the issues formulated by the appellant for determination. He also formulated the following two issues for determination in this appeal:-

 

1.    Whether it is the provision of Order 6 Rule 15 or Order 6 Rule 16 of the Lagos State High Court (Civil Procedure) Rules 1972 that governs the proof of service of a Writ of Summons.

 

2.     Does the provision of Order 6 Rule 15 to the effect that the matters contained in an affidavit of service sworn to in accordance therewith be prima facie proof of the fact of service, derogate from or support the mandatory provision of Order 6 Rule 16?

 

In a nutshell, it was the submission of learned Counsel for the appellant that the Respondent was properly served with the Writ of Summons as evidence by the affidavit of service sworn to that effect by Victor Akalaka, the Court bailiff and that satisfied the requirement of the provision of Order 6 Rule 15 of the High Court of Lagos State (Civil Procedure) Rules. He submitted that since Order 6 Rule 16 does not state the consequence of failure to comply with the provision contained therein, nor does it prescribe the effect for non-compliance, it cannot be construed to deprive an affidavit of service under Rule 151 b) of the same order its statutory force. He contended that whereas Order 6 Rule 15 is mandatory, Rule 16 of the same Order is merely directory. He therefore urged this Court to read Order 6 Rule 15 and Order 6 Rule 16 together when construing the two provisions. He referred to several authorities to support the submission supra, among which are:- Canada Sugar Refining Co. Ltd. v. R. (1898) A.C. 735 at 741 and Maxwell on Interpretation of Statutes (12th Edition) pp. 5~64. He rounded up his arguments by submitting that the appropriate provision for proof of service of the writ in the case in hand is Order 6 Rule 15.

 

The cardinal point raised in this appeal is whether in serving a specially endorsed writ, an affidavit of service sworn to by the person effecting service is a good substitute for indorsing a copy of the writ served as prescribed under Order 6 Rule 16 of the Rules.

 

To fully appreciate the effect and functions of the two rules, it is pertinent to reproduce the two provisions:

 

Rule 15 provided thus:-

 

15.    (1)    Where service of any process or document issued by the Court has  been effected  by the Sheriff, Deputy Sheriff, or by a bailiff or any officer of the Court:-

 

(a)    A certificate of service under the hand of the person effecting the service indorsed on true copy of the process or document served, setting out the fact, place, mode (a)    A certificate of service under the hand of the person effecting the service indorsed on true copy of the process or document served, setting out the fact, place, mode and date of service, or

 

(b)    an affidavit sworn by the person effecting the service setting out the fact, place, mode and date of service, and describing the process or document served,

 

shall be prima facie proof of the matters stated in the indorsement or affidavit.

 

(2)    Where any process or document is served by a person other than the Sheriff, Deputy Sheriff, or other aforesaid; an affidavit sworn by the person effecting the service setting out the fact, place, mode and date of service, and describing the process or document served, shall be prima facie proof of the matter stated in such affidavit.

 

(3)    Where service is affected by registered post, a certificate of service under the hand of the officer of the court who effected it, to which shall be annexed the certificate of posting, shall be prima facie proof of the matters therein stated.

 

(4)     Forms of certificate and affidavits of service will be found in Appendix B, part1.

 

Whereas Rule 16 makes the following provisions:-

 

16    The person effecting service of a Writ of Summons, originating summons or other originating process shall indorse forth with on a copy of the document served, duly certified as prescribed by Rule 2 of Order 5, the fact, place, mode and date of each service effected and shall sign and date each indorsement.

 

The provision in Order 6 Rule 15 is clearly of general application. Where service of any process or document is effected under 15(1), a certificate of service under 15(1)(a) or alternatively an affidavit of service under 15(1)(b), shall be prima facie proof of the matters stated in the endorsement or affidavit.

 

Rule 15(2) deals with service of process or documents by persons other than those mentioned in rule 15(1) and in such a situation, an affidavit sworn by the person effecting the service setting out the fact, place, mode and date of service, and describing the process or documents served, shall be prima facie proof of the matter stated in such affidavit.

 

The contention of learned counsel for the appellant could have been right if the provision of Order 6 Rule 16 is not there. It is a special provision provided to deal with the service of summons mentioned therein and these are:-

 

(a)     Writ of summons

 

(b)     Originating summons

 

(c)     Other originating process.

 

These documents, mentioned in (a), (b) and (c) supra, must bear an indorsement as prescribed by Rule 2 of Order 5 of the Rules. A copy of the Writ in this suit bears the following indorsement:

 

 

INDORSEMENT AS TO SERVICE

 

This writ was served by me at .......... on the Defendant (herein insert mode of service) on the ........ day of ........ 19 .......

Indorsed the ........... day  of ...........19 ..........

Signed .............................

Address .................................................................

 

It is common ground between the parties that the endorsement supra, was not completed by the person effecting the service. It is a Writ of Summons specifically mentioned in Rule 16 of Order 6.

 

The object of interpreting any statute or instrument is to ascertain the intention of the legislature that had made it or that of the parties that had drawn it. This is done by reading the words used in the particular section of the statute or the document. Where the meaning is not clear by doing so, the other sections of the statute, or the whole of it, shall be read together to ascertain the meaning. This same rule applies to other instruments. The provisions of the two rules are crystal clear; one is general while the other is special. There is no need to resort to reading the two together to ascertain the intention of the promulgators.

 

As I have earlier said, Rule 16 of Order 6 is a special provision dealing with mode and proof of service of summons mentioned therein and that the Writ of Summons in this suit, though covered by Rule 15 of Order 6, has been mentioned again in Rule 16 of the same Order, thus subjecting it to the provision of the latter.

 

At the expense of repeating myself, whereas Rule 15 of Order 6 is a general provision by its nature, Rule 16 is a special provision meant to cater for the service and proof thereof of the processes mentioned therein. And where a thing is mentioned in both general and special provisions, the provisions of the special provision shall apply to it. This is the rule of interpretation applicable and the Latin maxim is "generalia specialibus non derogant", meaning, general things do not derogate from special. The other rule of interpretation meaning the same thing is - "specialia generalibus derogant" - special things derogate from the general one.

 

There is no need to resort to Rule 15(1) in the present case which apply to all processes, including originating processes. The wording of Rule 16 of Order 6 is mandatory and failure to comply with it is fatal to the service and proof thereof, of any of the processes mentioned therein. The swearing of an affidavit cannot therefore take the place of certificate of service in Rule 16 of Order 6.

 

Just by way of comment, event the affidavit of service harped upon by the appellant, was sworn to by the court bailiff almost after two years from the date the writ was alleged to have been served on the Respondent. This is by itself an abnormality of a serious nature suggestive of something fishy vis-a-vis the service. I am therefore in complete agreement with the reasoning and the conclusions arrived at by the Court of Appeal in its judgment, more particularly where it stated:-

 

But for the Writ of Summons will not be considered as regular unless the endorsement which is part of the writ itself is completed. It is mandatory on the bailiff or the person serving the writ to complete the indorsement. It is only after this has been done that the affidavit of service in Form No.1 (supra) which must include item 3 therefore can be sufficient to raise a prima facie evidence of service.

 

In my view, the completion of the prescribed Form of "Indorsement as to service" which is part of the writ, is to provide an unmistakable and unequivocal information that the bailiff served the writ in the manner as prescribed. And emphasis is that this prescribed form shall be completed forthwith at the time service was effected.

 

Unfortunately, in the instant case this prescribed form admittedly was never completed and the reasonable inference to be drawn therefrom is that the writ was not only defective but was never in fact served. It is therefore dangerous to rely on this self-same defective affidavit sworn to by the bailiff, more than two years later, to say that the Defendant was served.

 

This will amount to naked injustice, as the condition precedent to justify the court entering judgment was not established and the judgment therefore was null and void. See Craig v. Kansser (1943) K.B. 256; where "judgment was set aside on the ground that affidavit of service (as in this case) on the face of it was insufficient and no order should have been completed on it." Per Lord Green, M.R. at page 263. See also Madukolu & others v. Nkemdilim (1962)1 A.N.L.R. 587 at page 594; Skenconsult (Nig.) Ltd. v. Godwin Skeondy Ukey (1981)1 S.C.6.

 

I also hold that where a party intends to rely on affidavit evidence as prima facie proof of service that affidavit must strictly be in the prescribed Form No.1 which in effect incorporates under item 3 thereof, the provisions of Order 6 Rule 16. It is only when that has been strictly done that the affidavit becomes a prima facie evidence of service thereby putting the onus of rebutting the averments therein contained on the party denying it. As the affidavit is incurably defective in material particulars as required by the Rules, it cannot support any judgment in default as there is no legal basis to hold that it was established that there was proof of service of the Writ of Summons on the Defendant.

 

It was for these reasons that I earlier dismissed the appeal summarily.

 

 

Judgment delivered by

Nnamani, J.S.C.

 

On 28th November, 1988, after hearing oral argument by learned counsel to the appellant, learned Counsel to the Respondent having not been called, I dismissed this appeal. I indicated that I would give my reasons today. I now do so.

 

I had the privilege of reading in draft the reasons for judgment just delivered by my learned brother, Wali, J.S.C., and I entirely agree with them and adopt them as my own.

 

This appeal is on a very narrow compass although it deals with an important procedural issue - service of Writ of Summons. It more directly concerns the interpretation of Order 6 Rules 15 and 16 of the Lagos State High Court (Civil Procedure) Rules, 1972. Issue 1 in the questions for determination in the Respondent's brief of argument seems to me to more clearly state the simple issue here.

 

It states,

 

(1)    Whether it is the provision of Order 6 Rule 15 or Order 6 Rule 16 of the Lagos State High Court (Civil Procedure) Rules, 1972, that governs the proof of service of a Writ of Summons.

        This Order is in these terms:

 

Order 6 Rule 15(1): Where service of any process or document issued by the Court has been effected by the Sheriff, Deputy Sheriff, or by a bailiff or any officer of the Court -

 

(a)    A certificate of service under the hand of the person effecting the service  indorsed on a true copy of the process or document served, setting out  the fact, place, mode and date of service, or

 

(b)   an affidavit sworn by the person effecting the service setting out the fact,  place, mode and date of service, and describing the process or document  served shall be prima facie proof of the matters stated in the indorsement  or affidavit.

 

(2)    Where any process or document is served by a person other than the Sheriff, or other officer aforesaid, an affidavit sworn to by the person effecting the service setting out the fact, place, mode and date of service, and describing the process or document served, shall be prima facie proof of the matter stated in such affidavit.

 

(3)     ................................................................................................................................................

        Order 6 Rule 16.         Order 6 Rule 16. The person effecting service of a Writ of Summons, originating summons, or other originating process shall indorse forthwith on a copy of the document served, duly certified as prescribed by Rule 2 of Order 5, the fact, place, mode and date of each service effected and shall sign and date each indorsement.

 

It would appear that in this case, the appellant, as can be seen from pages 9 and 10 of the records, issued a Writ of Summons but there was no indorsement as to service at the bottom of the writ. This indorsement of service was to be completed by the server of the writ, dated and signed by him. As earlier stated, it was neither completed nor signed. On 4th June, 1984, the server of the specially endorsed Writ of Summons swore to an affidavit of service deposing to the fact that he served the writ on the receptionist of the Respondent at 44 Burma Road, Apapa, on 22nd February, 1982. As it transpired, a period of 2 years and 4 months had elapsed between the time this alleged service and the time of swearing the affidavit.

 

When an application to set aside the judgment obtained against the Respondent came before Adenji, J., he held that there was no endorsement to the writ as required under Order6 Rule 16 which is a special provision to deal with writs of summons. Holding that the Respondent was not properly served, he declared the earlier judgment null and void relying on Sken Consult (Nig.) Ltd v. Ukey (1981)1 S.C.6. The Court of Appeal upheld this decision hence the appeal to this court.

 

Looking at both Order 6 Rules 15 and 16, it seems so clear to me; that while Rule 15 deals generally with service of process or documents, which process could include writs of summons, application, motions, etc., Rule 16 specifically deals with Writ of Summons and originating summons. There is a presumption that the legislature does nothing in vain. See Halsbury's Laws of England 4th Edition Vol.44 para. 861. Having enacted Rule 15, which is general, it must have been its intention to enact another rule to deal only with writs of summons hence Rule 16. Besides, the maxim Generalia specialibus non derogant applies, and the general provision in Rule 15 cannot derogate from the clear specific provision in Rule 16. See R. V. Bridge (1890) 24 Q.B.D. 609; Attorney-General v. Exeter Corporation (1911)1 K. B. 1092; Harlow v. Minister of Transport (1951) 2K.B.98.

 

Indeed, the marginal notes appear to assist in the view I have taken. While that near Rule 15 is ''Proof of service generally", that near Rule 16 is "Proof of service of writs of summons etc."

 

The appellants herein complied with Order 6 Rule 15(1)(b) and (2) but it was really Rule 16 that should have been complied with in the circumstances of this case. In not complying with Order 6 Rule 16, there was no proper service on the Respondent.

 

I do agree with the conclusion of Aseme, J. C.A., (as he then was) at page 87 of the record. The learned Justice said,

 

When it is borne in mind that Rule 15 provides for proof of service of any process which may include writs of summons, originating summons, pleadings, motions and other documents, and the fact that Rule 16 specifically provides for method of service of writs of summons and originating process, one can easily come to the conclusion that the legislature in its wisdom intended to single out the special mode of service of Writ of Summons and originating processes from those of other processes by providing that a person serving Writ of Summons or originating summons shall INDORSE FORTHWITH a certificate.

 

It was for these reasons and the more detailed reasons in the lead reasons for judgment, that I dismissed this appeal.

 

 

Judgment delivered by

Uwais, J.S.C.

 

I have had the advantage of reading in draft the reasons for judgment read by my learned brother, Wali, J.S.C. As it was for the same reason that I agreed on 28th day of December, 1986 that the appeal should be dismissed, I adopt the said reasons as mine. I do not deem it necessary to add anything more.

 

 

Judgment delivered by

Oputa, J.S.C.

 

On the 18th day of November 1988, I dismissed this appeal with N500.00 costs to the Respondent and indicated that I would give Reasons for Judgment on the 24th day of February, 1989. Hereunder are my reasons.

 

I have, in the interval, had the privilege of a preview in draft of the Lead Reasons for Judgment just delivered by my learned brother, Wali, J.S.C. and those reasons are perfectly in accord with mine.

 

The facts are not in dispute. The plaintiff/company sued the Defendant/Company in the High Court of Lagos State by a specially endorsed Writ claiming the liquidated sum of DM42,711.15 with interest. The Defendant did not enter any appearance. Thereupon the plaintiff brought an application under Order 9 Rules 2 and 3 and Order 24 Rule 2 of the Lagos High Court Rules for leave to sign judgment in default of appearance. Leave was granted and judgment was accordingly entered for the plaintiff on 13th July, 1984. Execution was levied on the properties of the Defendant and to save those properties, the Defendant paid the amount of the judgment debt. Thereafter the Defendant applied on the 30th November, 1984 to have the judgment and orders made against it on the 13th July, 1984 set aside. The sole and only ground for the application to set aside, was that the Defendant was not served with the writ and Statement of Claim and could not therefore have entered any appearance. The plaintiff's application for leave to sign judgment in default of appearance and the order granting the plaintiff leave to sign judgment were therefore both made per incuriam. Adeniji, J., granted the prayer of the Defendant, set aside the default judgment obtained against the Defendant as well as the Writ of fifa issued thereon and ordered that the sum of N14,269. 11 and N200.00 incidental expenses be paid back to the Defendant by the plaintiff.

 

The plaintiff dissatisfied and aggrieved appealed against the orders of Adeniji, J. The Court of Appeal Lagos Division (coram Aseme, Uthman Mohammed and Kutigi, JJ.C.A.) dismissed the plaintiff's appeal holding per Aseme, J.C.A. at p.86 that:

 

The issue in the instant appeal concerns the provisions of Order 6 Rules 15 and 16 dealing with Service of processes.

 

After a detailed consideration of Rules 15 and 16 of the said Order 6 of the Lagos High Court Rules, Aseme, J.C.A. who wrote the lead judgment observed and held at p.88:-

 

But the Writ of Summons will not be considered as regular unless the indorsement which is part of the Writ itself is completed. It is mandatory on the bailiff or the person serving the Writ to complete the indorsement. It is only after this has been done that the affidavit of service in Form No.1 supra which must include item 3 therefore can be sufficient to raise a prima facie evidence of service.

 

In other words, the Court of Appeal held that the affidavit of service sworn to by the bailiff- one Victor Akaluka - that he personally served the Defendant/Company was impotent and ineffective and was therefore no proof of service.

 

The plaintiff having lost in the High Court and the Court of Appeal has now appealed to this Court. Three Issues for Determination were formulated in the plaintiff/appellant's Brief, namely:-

 

3.1    Whether the only manner of proof of service of a Writ of Summons in Lagos State is by endorsement on the Writ itself by the person who served the writ in accordance with Order 6 Rule 16 of the High Court Civil Procedure Rules.

 

3.2    Was the learned Judge correct when he held that notwithstanding that there was an affidavit of service in terms of Order 6 Rule 15(1)(b) before the Court, failure to comply with Order 6 Rule 16 was fatal to proof of service?

 

3.3    Put in other words, is the auxiliary verb "shall" in Order 6 Rule 16 of the High Court of Lagos (Civil Procedure) Rules mandatory or directory in effect? What is the legal consequence of non-compliance with Order 6 Rule 16. Does it vitiate service or does it merely render the Writ irregular in some material particular which irregularity can be cured by an affidavit under Order 6 Rule 15(1)(b)?

 

As all the 3 Issues formulated by the plaintiff/appellant are closely related, I will consider all the three together.

 

Order 6 of the High Court of Lagos State (Civil Procedure) Rules deals with "Service of Writs of Summons and other Documents". Rules 15 and 16 of the said Order 6 deal with Proof of Service. The marginal heading of Order 6 Rule 15 is - "Proof of Service generally" while the marginal heading of Order 6 Rule 16 is - "Proof of Service of Summons etc". But to avoid the controversy as to the part marginal notes or headings ought to play in the construction of Rules 15 and 16 of Order 6 above, it will be safer to reproduce those Rules and construe them as they are only referring to the marginal notes to resolve any ensuring doubt: Alichin v. Coulthard (1942) 2 K.B. 228 at p.232; Stray V. Docker (1944) K.B. 351. Order 6 Rule 15 provides as follows:

 

 

15 (1)      Where service of any process or document issued by the Court has been affected by  the Sheriff Deputy Sheriff or by a bailiff or any officer of Court -

 

(a)   A certificate of service under the hand of the person effecting the service indorsed on a true copy of the process or document served, setting out the fact, place, mode and date of service; or

 

(b)   an affidavit sworn by the person effecting the service, setting out the fact, place, mode and date of service, and describing the process or document served.

 

shall be prima facie shall be prima facie proof of the matters stated in the indorsement or affidavit.

 

(2)     ..............................................................................................................................................

 

(3)     ...............................................................................................................................................

 

(4)     .................................................................................................................................................

 

16    The person effecting service of a Writ of Summons, originating summons or other  originating process shall indorse forthwith on a copy of the document served, duly certified as prescribed by Rule 2 of Order 5, the fact, the place, mode and date of each service effected and shall sign and date the indorsement.

 

I have underlined the operative words of Rules 15 and 16 above.

 

Whereas Rule 15 above deals with "service of any process or document", Rule 16 deals with "service of a Writ of Summons, originating summons or other originating process". There is no dispute between the parties that what the plaintiff issued on the 5th February, 1982, was a Writ of Summons - see pp.1 and 2 of the record of proceedings. It was not just "any process" or "document". No. It was a specific "process" called "Writ of Summons". It was a defined and definite document known as Writ of Summons. The question now is - Did the Lagos State High Court (Civil Procedure) Rules provide for the service of Writs of Summons? The obvious answer is yes, it did in Order 6 Rule 16. Where the Rules have made provisions to cover a particular contingency, that provision and no other ought to be invoked to meet that particular contingency. The matter is quite as easy as that and every other contribution will be just an attempt to elaborate upon and rationalise this simple fact.

 

So many legal maxims support the above proposition. I may here set down some of them:-

 

(i)    Generale dictum generaliter est interpretandum: generalia verba sunt generaliter intelligenda. (3 Inst. 76):- "A general saying is to be interpreted generally: general words are to be understood generally." Order 6 Rule 15 used general words as "any process", "any document". Where a particular process is not envisaged then Order 6 Rule 15 will apply.

 

(ii)    Generate nih it certi imp licat (2 Co.33) - "A general expression implies nothing certain." Thus the expressions "any process", "any document" used in Order 6 Rule 15 are not referable to any particular or certain process or document.

 

(iii) Generale tantum valet in generalibus quantum sin gulare in singulis.(11 Co.59):- ''What is general prevails as much amongst things general as what is particular amongst things particular." This maxim from Coke comes very near to the point in issue in this appeal. What is general prevails or remains valid (valet) only amongst things that are general. Therefore Order 6 Rule 15 being general will be valid only in relation to things general like ''any process", any document". It is not envisaged in the presence of Order 6 Rule 16 to apply to what is particular which in this case should be governed by Order 6 Rule 16 dealing particularly and specifically with ''Writ of Summons", originating summons or other originating process. Once one descends to specific types of process then the rule governing particular and specific processes will prevail over the Rules of the same Order dealing with processes and documents generally.

 

(iv) Generalia specialibus non derogant. (Jenk Cent 120): 'General things do not derogate from special." In this case, Order 6 Rule 16 comes after Order 6 Rule 15. The maker of those Rules will be presumed to have Order 6 Rule 15 in his contemplation when he was making Order 6 Rule 16. That being so, the Rules clearly were designed to apply to two different situations - Order 6 Rule 15 was meant to apply generally but without prejudice to Order 6 Rule 16 intended to apply only to Writs of Summons, originating summons or other originating process. In any event, specialia generalibus derogant - Special words derogate from general ones. That being so, Order 6 Rule 16 ought to derogate from Order 6 Rule 15 not the reverse. Words whether they are in deeds or statutes if they be general and not particular, express and precise; are restrained and prevailed upon by particular words appearing in the same statute or section thereof.

 

In this case now on appeal, the Writ of Summons was dated 5th February, 1982, see p.2 of the record. The Indorsement as to service was not completed and signed as required by Order 6 Rule 16. But there is attached to the plaintiff/appellant's counter-affidavit at p.28 of the record an affidavit of Services sworn to on 4th June, 1984 over two years and 4 months after the issue of the Writ of Summons. Why was this inordinate delay in swearing to the affidavit of Service? The veracity of the bailiff who swore to that affidavit of Service after such a long delay will naturally be called into question especially as the Respondent/company swore that it was never served with that specially indorsed Writ. Had the appellant used the procedure set out in Order 6 Rule 16 above, the Indorsement as to service should have borne on its face the place, the mode and the date of service. It would not have been necessary for the bailiff to swear to an affidavit two years after the service. In this case, I am in full and total agreement with the two Courts below that proof of service of plaintiff's Writ of Summons should have been as clearly and specifically provided for in Order 6 Rule 16 and not by affidavit as required under Order 6 Rule 15(1)(b). The resultant effect is that the plaintiff failed to prove that its Writ of Summons was in fact served on the Defendant. Any other proceedings - leave to sign final judgment or writ of fifa - were therefore all given per incuriam and were all tainted with a fundamental vice which robbed the Court of the necessary jurisdiction. They were thus null and void ab initio: Skenconsult (Nig.) Ltd. & anor. v. Godwin Sekondy Ukey (1981)1 S.C. at pp.26/27; Madukolu & ors. v. Nkemdilim (1962)1 All N.L.R. 587 at p.595.

 

My answer to Issue No.1 as formulated in the plaintiff/appellant's Brief is that the only manner of proof of service of a Writ of Summons in Lagos State is as provided for, by Order 6 Rule 16 of the High Court of Lagos State (Civil Procedure) Rules that is to say: the person effecting the service shall indorse forthwith on the Writ the fact, place, mode and date of service. The person serving shall also sign and date each indorsement.

 

The answer to Issue No.2 is that an affidavit of service in compliance with Order 6 Rule 15(1)(b) is incompetent to prove service of a Writ of Summons. Such affidavit notwithstanding, failure to comply with Order 6 Rule 16 is fatal to proof of service of a Writ of Summons. Having regard to the answers to Issues No.1 and No.2 above, Issue No.3, from the facts of this case, (that the appellant did not rely on Order 6 Rule 16 but rather on Order 6 Rule 15( 1)(b)), becomes merely academic in that it is not necessary to decide Issue No.3 before coming to the conclusion that proof of service of a Writ of Summons, originating summons or other originating process should be as stipulated by Order 6 Rule 16. The main issue calling for a decision in this appeal is whether proof of service of a Writ of Summons issued in the High Court of Lagos State and in accordance with the Lagos State High Court Rules should be by affidavit as provided by Order 6 Rule 15(1)(b) or by Indorsement on a copy of the Writ of Summons under Order 6 Rule 16. That question has been answered under Issues Nos. 1 and 2 above. Issue No.3 dealing with the interpretation of Order 6 Rule 16 does not arise as the plaintiff/appellant never proceeded under Order 6 Rule 16 at all. Is he now asking for an advisory opinion? This Court does not give such opinions. It only decides matters touching the live Issues in controversy between the parties.

 

In the final result, it was for all the reasons given above and for the fuller reasons in the Lead Reasons for Judgment of my learned brother, Wali, J.S.C. which I now adopt as mine that I, on the 28th day of November, 1988, dismissed the plaintiff's appeal.

 

 

Judgment delivered by

Agbaje. J.S.C.

 

1 dismissed the appellant's appeal on 28/11/88. I indicated then that I would give my reasons for doing so today. I now proceed to do so.

 

This appeal is concerned with the construction of Order 6 Rules 15(1) and 16 of the High Court of Lagos (Civil Procedure) Rules, 1972.

 

The Rules provide thus:-

 

15    (1)     Where service of any process or document issued by the Court has been affected  by Sheriff, Deputy Sheriff, or by a bailiff or any officer of the Court -

 

(a)    A certificate of service under the hand of the person effecting the service indorsed on a true copy of the process or document served, setting out the fact, place, mode and date of service, or

 

(b)   an affidavit sworn by the person effecting the service setting out the fact, place, mode and date of service, and describing the process or document served,

 

shall be prima facie proof of the matters stated in the indorsement or affidavit.

 

16.   The person effecting service of a Writ of Summons, originating summons or other originating process shall indorse forthwith on a copy of the document served, duly certified as prescribed by Rule 2 of Order 5, the fact, place, mode and date of each service effected and shall sign and date each indorsement.

 

It is clear that the provisions of Rule 15 provide for the proof of service of any process or document issued by the court which necessarily includes a Writ of Summons or other originating process. In effect, the rule provides for proof of service generally.

 

On the other hand, Rule 16 provides specially for proof of service of Writ of Summons or other originating summons.

 

In the case of Bamgboye V. Administrator-General 14 W.A.C.A. 616, Bairamian, J., (as he then was) delivering the judgment of the old West African Court of Appeal said as to the true and proper construction of two statutory provisions, one special and the other general, covering the same subject matter as follows at p.619:-

 

It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind this rule is that the legislature in making the special provision is considering the particular case and expressing its will in regard to that case; hence the special provision forms an exception importing the negative; in other words the special case provided for in it is excepted and taken out of the general provision and its ambit; the general provision does not apply. In the words of Lord Selborne, C., in Seward V. "Vera Cruz" (1), "Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold the earlier and special legislation indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention so to do". It follows that the matter in hand is governed by section 2 of Cap.2, which remains unaffected, and that section 30(1) of Cap.4 cannot be invoked in support of the order under appeal.

 

The above rule of construction applies equally, of course, when the special and the general provision are enacted in the same piece of legislation: see Dryden v. The Overseers of Putney (2).

 

We are in this appeal concerned with the proof of service of a Writ of Summons for which Rule 16 makes special provisions besides Rule 15 which may well be equally applicable to it. I am satisfied on the authorities that it is the provisions of Rule 16 that is applicable whenever any issue arises as to proof of service of the Writ of Summons. So, in my judgment, the two lower courts are right in coming to this decision.

 

It is for the above reasons and the fuller reasons given in the lead judgment of my learned brother, Wali, J.S.C. which I have had the benefit of reading in draft that I dismissed the appellant's appeal on 28/11/88.

 

 

Counsel

 

M.I Idigbe

  ........

For the Appellants

O. Ayanlaja

With Miss O. Ilori

  ........

For the Respondents