LEGALPEDIA ELECTRONIC CITATION:LER[2018]: CA/L/789/2013                                                                                            

AREAS OF LAW:

ACTION, APPEAL, COURT, INTERPRETATION OF STATUTE, LABOUR LAW, LIMITATION LAW, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS

The Respondents are retired staff of the Appellant who had earlier filed an action against the Appellant in a representative capacity, wherein they claimed that as retired staff of the Appellant, having retired before 31^st December, 2004, they were entitled to a harmonization of their pensions. This, according to the Respondents, is by virtue of Section 173(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, Circulars from the Presidency, The office of the Head of Service of the Federation and Clause 43 of the NNPC Corporate Policy and Procedure Guidelines. They sought for an order mandamus directing the Appellant to pay to the Claimants forthwith all accrued pensions calculated with effect from 1st January, 1997 to the date of the order on emoluments currently earned by their serving counterparts as prescribed under the Federal Government Policy on Harmonization of Pensions and subsequently all such pensions as and when due amongst others. The Appellant after making a conditional appearance at the trial Court filed a motion on notice wherein they prayed the court to dismiss the Respondents’ action for want of the court’s jurisdiction on the grounds that; the suit was statute-barred, and the complaint was issued, filed and served out of jurisdiction without the leave of court as required by Sections 96, 97, 98 and 99 of the Sheriffs and Civil Process Act Cap 407, Laws of the Federal Republic of Nigeria, 2004 amongst other grounds. The trial court hence dismissed the Appellant’s motion for dismissal of the suit; the Appellant has expressed its dissatisfaction by appealing to the Court of Appeal.

 

HELD

Appeal Allowed

ISSUES FOR DETERMINATION

• Whether the lower court had jurisdiction to entertain the complaint and ail the court processes in this case, the Respondents having failed to comply with the mandatory provision of the Sheriff and Civil Process Act.

 

• Whether Respondents suit is statute barred in the light of the provisions of the Nigeria National Petroleum Corporation Act, Cap 123 LFR 2004.

 

RATIONES

ORIGINATING PROCESS- EFFECT OF THE ISSUANCE AND SERVICE OF ORIGINATING PROCESS ON THE JURISDICTION OF COURT

“The law has remained well settled to the effect that the issuance of any originating process by a claimant and the service of the same on a defendant in a matter in a court of law, are conditions precedent for the exercise of the jurisdiction of the court over the subject matter of the action against the defendant. Nwabueze v. Obi – Okoye (1988)10-11 SCNJ 60 @ 77;( 1988)4 NWLR (91)664;(1988)LPELR-2079 (SC); Madukolu v. Nkemdilim (1962)1 ALL NLR 587 @ 594.” PER T. S. YAKUBU, J.C.A

 

SERVICE OF ORIGINATING PROCESS- CONSEQUENCE OF A FAILURE TO EFFECT SERVICE OF ORIGINATING PROCESS AS STIPULATED BY LAW OUTSIDE JURISDICTION

“Furthermore, the law is well established beyond per adventure that where the law mandates that leave of court must be sought and obtained by a claimant in an action before an originating process is served out of the jurisdiction of the court from which registry the said process is issued, such an application, is not a mere formality. Hence, a failure to properly serve an originating process as laid down by the law is a fundamental vice and it invariably deprives the court of the necessary competence and jurisdiction to hear and determine the suit. Mohammed Kida v. A.D. Ogunmola (2006) 6 SCNJ 165; Hon. Emeka Okonji V. Hon.Peter Onwusanya & Ors (2014) LPELR-22191 (CA).” PER T. S. YAKUBU, J.C.A

 

 

SERVICE OF WRIT OF SUMMONS – PROCEDURE FOR THE SERVICE OF A WRIT OF SUMMONS OUTSIDE THE JURISDICTION OF THE COURT FROM WHICH THE PROCESS IS ISSUED

“Now, it is imperative to have recourse to Sections 96, 97 & 99 of the Sheriffs and Civil Process Act, Laws of the Federation, 2004. It provides thus:

“96. (1) A writ of summons issued out of or requiring the defendant to appear at any court of a State or the Capital Territory may be served on the defendant in any other State or the Capital Territory.

 

(2) Such service may, subject to any rules of court which may be under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital Territory in which the writ was issued.

 

97. Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say) “This summons (or as the case may be) is to be served out of the ……State (or as the case may be)…………and in …….the State (or as the case may be).”

 

98.A writ of summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such State or the Capital Territory and shall in that case be marked as concurrent.

 

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 is longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that longer period”.

The effect of the above provisions of the Sheriffs and Civil Process Act, Cap. l89, Laws of the Federation of Nigeria,1958, which are in Pari materia with the Sheriffs and Civil Process Act, Laws of the Federation,2004 were espoused by the Supreme Court in Nwabueze v. Obi-Okoye, supra.” PER T.S. YAKUBU, J.C.A

 

WAIVER OF A RIGHT-   EXTENT TO WHICH AN INDIVIDUAL CAN WAIVE RIGHTS CONFERRED ON HIM BY STATUTE.

“This court (sitting as a Full Court) has in Ariori v. Elemo (1983) 1 SCNLR 1(1983) ANLR 1. Decided that when a right is conferred either by the Constitution or a Statute solely for the benefit of an individual he should be able to forgo the right or, in other words, waive it either completely or partially depending on his free choice and the extent to which he has forgone his right would be a matter of fact and each will depend on its peculiar facts. Eso JSC who delivered the lead judgment, with which the other Justices agreed, said at page 12:

 

“The next enquiry is the extent to which a person could waive rights conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such right. The right is for his benefit. He is sui juris. He is under no legal disability. He should be able to forgo the right or in other words waive it either completely or partially, depending on his free choice. The extent to which he has forgone his right would be a matter of fact and each case will depend on its peculiar facts. A simple example could be seen in a right which has been conferred by contract.  A person who is beneficiary to a contract, whereby the benefit is principally for him, has full competence to waive that right. What obtains in the case of a contract should go for benefits conferred by statute. A beneficiary under statute should have full competence to waive those rights once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of its statutory provisions.” His lordship, Ogundare, JSC, continued:

 

“The law appears to me to be that a person who is sui juris can waive a right conferred upon him by a statute where the right is for his sole benefit and the State has no interest. Where the State has an interest in the matter in the sense that public policy is involved, such a right cannot be waived.”

• PER T. S. YAKUBU, J.C.A

 

PUBLIC POLICY- WHETHER A PERSON CAN WAIVE THE EFFECT OF A RULE OF PUBLIC POLICY

“As Bello JSC (as he then was) put it in Attorney-General of Bendel State v. Attorney-General of the Federal & 22 others (1981) 10 SC 1 at p. 54, and I agree:

“the law does not permit a person to contract himself out of or waive the effects of a rule of public policy”.

• T .S YAKUBU, J.C.A

 

CONSTRUCTION OF STATUTE – DETERMINATION OF MANDATORY AND DIRECTORY PROVISIONS OF A STATUTE

“The difficulty has always been to determine what is mandatory or obligatory.  As Lord Campbell, L.C. put it in Liverpool Borough Bank v. Turner 29 U (Ch.) 827; 30U (Ch.) 397; De G.F & F 502;

“No universal rule can be laid down for the construction of Statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.”

A statutory provision may be mandatory in part and directory in another part. Example of this is section 258 (1) of our 1979 Constitution which provides:

“258(1) Every court established under this constitution shall deliver its decision in writing not later than three months after the conclusion of evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof.”

In Ifezue v. Mbadugba (1984) 1 SCNLR 427; (1984) ANLR 256 this Court held that the first limb which contains the words “shall deliver…in writing not later than three months” is mandatory and the second limb which contains the words furnish…..delivery thereof” is directory “in view of the logistics involved in getting up a judgment, that is taking into account the vagaries of third world country…” per Irikefe JSC (as he then was) at p. 278.” PER T. S. YAKUBU, J.C.A

 

CONSTRUCTION OF STATUTE – DISTINCTION BETWEEN MANDATORY AND DIRECTORY PROVISIONS OF A STATUTE

“It is the law here in Nigeria as well as in England that if the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the provisions of the statute are directory and not mandatory – see: Ariori v. Elemo (supra); Wilson v. Mackintosh (1984) AC 129, 133. See also Craies on Statute Law (7th edition) page 269.” PER T. S. YAKUBU, J.C.A

 

SERVICE OF ORIGINATING PROCESS – RATIONALE FOR SECTION 97 AND 99 OF SHERIFFS AND CIVIL PROCESS ACT, LAWS OF THE FEDERATION, 2004.

“Reading carefully the wordings of sections 97 and 99 of the Act I am of the firm view that the provisions of these sections are for the benefit of defendants alone rather than of the general public. The purpose of section 99 is to give a defendant served in a State outside the one in which the writ was issued sufficient time to enable him make appearance. The endorsement to the writ required by section 97 informs him that the writ was issued in another State. With this view of theses sections I cannot say that a breach of any of them is of such incurable nature that cannot be waived by the person for whose benefit they are provided, that is, the defendant. I think he can waive them if he so chooses.” PER T. S. YAKUBU, J.C.A

 

WAIVER- DEFINITION OF WAIVER

“What is waiver? Defining the word “waiver”, Idigbe JSC at page 22 of the Ariori’s case said:

“By way of a general definition, waiver is the intentional and voluntary surrender or relinquishment of a known privilege and or right; it, therefore, implies a dispensation of abandonment by the party waiving of a right or privilege which, at his option, he could have insisted upon.” Obaseki, JSC at page 25 added:

“Waiver is according to words and phrases legally defined Volume 5 p.301 1969 edition reprinted 1974 defined as the abandonment of a right. A person who is entitled to the benefit of a statutory provision may waive it and allow the transaction to proceed as though the provision did not exist.”

It follows, therefore, that where a defendant is served with a writ of summons in breach of sections 97 and 99 of the Act, he has a choice either to object to the service by applying to have it set aside and the Court ex debito justitiae will accede to the application or ignore the defect and proceed to take steps in the matter. By entering unconditional appearance and filing pleadings, as in the case on hand, he is deemed to have waived his right to object and cannot later in the proceedings seek to set same aside because of the original defect. I am not unmindful of the fact that in Skenconsult and Nwabueze this Court had held that non-compliance with these sections would render the proceedings null and void.” PER T. S. YAKUBU, J.C.A

 

SERVICE OF A WRIT OF SUMMONS – EFFECT OF NON-COMPLIANCE WITH THE CONDITION PRECEDENT FOR SERVICE OF A WRIT OF SUMMONS OUTSIDE A TERRITORIAL JURISDICTION

“See also the case of Nwabueze & Anor. V. Justice Obi Okoye (1988) 10-11  SCNJ 60 also referred to, by the learned trial Judge where it was held inter alia, as follows:”……….

“……..A condition precedent for the issue of the writ of summons against the Defendant in the case, who are resident outside the area of territorial jurisdiction of the High Court of Anambra State and who, again, does not carry on business, within that area jurisdiction is that leave of court is to be obtained before the writ is issued – leave to issue writ which is to be served out of the jurisdiction is not a matter of course and the application for leave is not a mere irregularity. In the instant case, since leave was not first obtained before the Writ was issued, the Writ of Summons has been issued without due process of Law; and accordingly, has to be set aside for being null and void.

In other words, it was held that where a defendant is outside jurisdiction, no writ for service out of jurisdiction can be issued except by leave of the court. That the issue of Writ of Summons and the service of the same on the Defendant are conditions precedent, for the exercise of a court’s jurisdiction over the defendant.

 Of course, and this is also settled, where an act is void, then it is in law, a nullity. See the case of Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1 @ 617; (1997) 7 SCNJ 600 – Per Ogundare, JSC (of blessed memory) in which both cases of Skenconsult Nig. Ltd. v. Ukey (supra), Okoye (supra), were referred to. Referring to Skenconsult’s case (supra), it was held that if the defect or non-compliance complained of, went to the competence or jurisdiction of the trial court, then the proceedings therein would be null and void. That it is of no moment that the defendant, had taken some steps in the proceedings. That non-compliance with the Act, was not a mere irregularity, but a fundamental defect which went to the root of the jurisdiction and competence of the court.” PER T. S. YAKUBU, J.C.A

 

STATUTE OF LIMITATION – EFFECT OF A STATUTE OF LIMITATION

“Section 12 of the aforementioned Act, provides, to wit:

“Notwithstanding anything in any other enactment, no suit against the Corporation, a member of the Board or any employees of the corporation for any act done in pursuance or execution of any enactment or law, or of any public duties or authority, or in respect of any alleged neglect or default in the execution of such enactment or law, duties or authority, shall lie or be instituted in any court unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof.

The clear intendment of the above provision in section 12 of the Act, is that any action that must be filled by any person who feels that he has an axe to grind against an act, neglect or default at the appellant’s instance, must be filed within twelve months, next after the act, neglect or default, being complained of by such a person. Therefore, where an action is instituted against the appellant, after twelve months of its act, neglect or default being complained of, except where the act, neglect or default of the appellant is tantamount to a continuance of damage or injury being suffered by the claimant, such an action will become statute barred. It simply means that the claimant has lost his right to sue the appellant on account of the latter’s alleged act, neglect or default .The essence and effect of a limitation law such as section 12 of the Act under consideration, was succinctly reiterated by the Supreme Court in Dr. Tosin Ajayi v.  Adebiyi & Ors (2012) 11 NWLR (Pt.l310)137@174 thus :

“Where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process, because the period of time laid down by the Limitation Law for instituting such an action had elapsed and the right to commence the action would have been extinguished by law.

Where the issue of limitation is raised in defence of an action, it is only proper that the issue should be addressed first, as it makes no sense to decide the merit of a matter that is statute-barred. In the event of a successful plea of limitation law against a plaintiff’s right of action, the action becomes extinguished and unmaintainable at law. See the cases of Muemue vs. Gaji (2001) 2 NWLR (PT. 696) 289 at 302, Egbe vs. Adefarasin (1985) 1 NWLR (PT.3) 549 Sosan vs. Ademuyiwa (1986) 2 NWLR (PT. 27) 241″.

• PER T.S. YAKUBU, J.C.A

 

“CONTINUANCE OF INJURY OR DAMAGE” – MEANING OF “CONTINUANCE OF INJURY OR DAMAGE”

“In Curey v. Metropolitan Bourough of Bermondey (67 J.P. 447) at Page 111, to wit:

“It is manifest that continuance of the injury or damage means the continuance of the act which caused the damage. It was not unreasonable to provide that, if there was the continuance of an act causing damage, the injured person should have the right to bring an action at any time within the months of the ceasing of the act complained of.”

• PER T. S. YAKUBU, J.C.A

 

SERVICE OF WRIT OF SUMMONS – EFFECT OF NON-COMPLIANCE WITH SECTIONS 97 AND 99 OF THE SHERIFFS AND CIVIL PROCESS ACT

“In Odu’a Investment Co. Ltd vs. Talabi (1997) 10 NWLR (PT 523) 1 the apex court held that the effect of non-compliance with Sections 97 and 99 of the Sheriffs and Civil Process Act would render the Writ of Summons voidable but not void. This was in 1997. However in 2008, in Owners Of The Mv “Arabella” vs. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (PT 1097) 182, the apex court held that the effect of non-compliance with the said Sections 97 and 99 of the Sheriffs and Civil Process Act would render the Writ of Summons void. By the legal jurisprudential rule of posterior construction, the decision in Owners Of The Mv “Arabella” vs. Nigeria Agricultural Insurance Corporation (supra) is to be preferred: Cardoso vs. Daniel (1986) 2 NWLR (PT 20) 1 at 38-39, Seriki vs. Solaru (1965) NMLR 1 and Ikeakwu vs. Nwankpa (1967) NMLR 224.” PER U.A. OGAKWU, J.C.A

 

STATUTES REFERRED TO:

Constitution of the Federal Republic of Nigeria, 1999

Sheriffs and Civil Process Act, Laws of the Federation, 2004