CORAM

HON. JUSTICE T. O. AWOTOYE . JUSTICE, COURT OF APPEAL

HON. JUSTICE M. DANJUMA . JUSTICE, COURT OF APPEAL

HON. JUSTICE B. F. ZUBAIRU . JUSTICE, COURT OF APPEAL

PARTIES

EAST INDIA UDYOG LIMITED

APPELLANTS 

1. KOTCO ENERGY LIMITED

2. WEMA BANK PLC

RESPONDENTS 

AREA(S) OF LAW

CIVIL PROCEDURE, JURISDICTION, PRACTICE AND PROCEDURE, SERVICE OF COURT PROCESSES, SHERIFFS AND CIVIL PROCESS ACT

SUMMARY OF FACTS

The 1st Respondent filed a suit against the Appellant and the 2nd Respondent, seeking declarations regarding defective transformers, injunctive relief, and orders for the replacement or return of the transformers. The Appellant, located in India, and the 2nd Respondent, located in Lagos, were both outside the jurisdiction of the Ogun State High Court. The Writ of Summons gave the defendants seven days to enter an appearance. The Appellant filed a preliminary objection challenging the court’s jurisdiction based on improper service and non-compliance with requirements for service outside the jurisdiction. The trial court dismissed the preliminary objection, leading to this appeal.

HELD

1. The appeal was allowed.

2. The Writ of Summons in Suit No: HCS 118/2015 taken out on April 10, 2015, was struck out.

3. The entire proceedings and decision of the trial judge were set aside due to lack of jurisdiction stemming from the incompetent Writ of Summons.

ISSUES

RATIONES DECIDENDI

SERVICE REQUIREMENTS – EFFECT ON JURISDICTION:

“Non-compliance with the issuance and service of originating processes touches on the competence of a court to adjudicate over a matter before it. Where there is a defect in competence, the proceedings are rendered a nullity, no matter how well conducted.” – Per Mohammed Danjuma, JCA

MANDATORY REQUIREMENTS FOR SERVICE OUTSIDE JURISDICTION:

“An originating process to be issued for service outside jurisdiction is required to be endorsed as such, and prior leave of court to issue and serve the Writ is a mandatory requirement of law and the Rules of Court before service of the Writ on the Appellant and 2nd Respondent as Defendants.” – Per Mohammed Danjuma, JCA

TIME FOR APPEARANCE – STATUTORY REQUIREMENT:

“The Rules of the Lower Court provide that a Writ for service outside jurisdiction ought to be endorsed, and the time within which the Defendants may enter appearance shall not be less than thirty (30) days. Failure to comply with this requirement is fatal to the Writ of Summons.” – Per Mohammed Danjuma, JCA

PROPER ENDORSEMENT – MANDATORY REQUIREMENT:

“The required statutory notice was not endorsed on the Writ of Summons. The endorsement is part and parcel of the Writ, and without it, it is both defective and incompetent. The endorsement is not a procedural requirement that could be treated as an irregularity capable of being cured.” – Per Mohammed Danjuma, JCA

AFFIDAVIT EVIDENCE – TEST FOR EXTRANEOUS MATTER:

“The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the court.” – Per Mohammed Danjuma, JCA

CONCURRENT WRIT – REQUIREMENTS FOR SERVICE OUTSIDE JURISDICTION:

“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.” – Per Mohammed Danjuma, JCA

EFFECT OF IMPROPER SERVICE:

“The effect of all this is that the lower court has no jurisdiction to entertain the case.” – Per Mohammed Danjuma, JCA

AFFIDAVIT CONTENT – STATEMENT OF FACTS VS LEGAL ARGUMENTS:

“Prayers, objections, and legal arguments are matters that may be pressed by counsel in court and are not fit for a witness, either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the court to reach.” – Per Mohammed Danjuma, JCA

TIME LIMITATION FOR APPEARANCE – MANDATORY NATURE:

“Where the writ is properly endorsed for service outside jurisdiction, the period within which the defendants should enter appearance ought not to have been abridged by the plaintiffs.” – Per Mohammed Danjuma, JCA

SERVICE AS JURISDICTIONAL REQUIREMENT:

“The service of court processes on a defendant is a mandatory requirement that must be fulfilled before the court can assume jurisdiction over a matter.” – Per Mohammed Danjuma, JCA

ENDORSEMENT REQUIREMENT – NATURE AND EFFECT:

“The endorsement is an integral part of the Writ, and without it, the Writ is both defective and incompetent. This endorsement is not merely a procedural requirement that can be treated as an irregularity capable of being cured.” – Per Mohammed Danjuma, JCA

SERVICE OUTSIDE JURISDICTION – STATUTORY COMPLIANCE:

“Any service of a Writ without proper endorsement is not merely an irregularity that can be waived or overlooked; rather, it constitutes a fundamental defect that renders the Writ incompetent.” – Per Mohammed Danjuma, JCA

JURISDICTIONAL DEFECTS – EFFECT ON PROCEEDINGS:

“Non-compliance with the requirements for the issuance of the Writ of Summons is fatal, as the condition precedent has not been met; this has vitiated the entire proceedings.” – Per Mohammed Danjuma, JCA

CASES CITED

STATUTES REFERRED TO

1. Sheriffs and Civil Process Act, Cap S6, Laws of the Federation of Nigeria, 2004

2. High Court of Ogun State (Civil Procedure) Rules, 2014

3. Evidence Act, 2011

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