CORAM

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MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

MASSOUD ABDULRAHMAN OREDOLA

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PARTIES

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JIMBAZ (WEST AFRICA) LIMITED

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ECOBANK NIGERIA PLC

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent at the High Court of Abia State, sitting at Aba had instituted an action against the Appellant claiming the sum of Seventeen Million Five Hundred Thousand Naira only being rents for five years (2008 to 2013) for the building which the Respondent let to the Appellant. Both parties carry on Business in Aba within the jurisdiction of the lower Court. The Respondent applied for an order, entering suit No. 240/2008 for hearing under the undefended list and marking the writ of summons in this suit for hearing, which application was granted by lower Court. The necessary Court processes in the suit were served on the Appellant at Plot 21, Ahmadu Bello Way Victoria Island Lagos by the bailiff of Lagos State High Court. When the matter came up for hearing, Counsel to the Appellant informed the lower court that it conceded to judgment being entered for the Respondent and they are not contesting the suit. The lower Court subsequently entered judgment in favour of the Respondent as per its claim. Dissatisfied with the above decision, the Appellant filed Notice of Appeal containing three grounds of appeal contending that the trial Judge lacked the jurisdiction to entertain the suit as the prescribed period of service of the writ of summons under Section 99 of the Sheriffs and Civil Process Act was not adhered to.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the failure by the trial Court to adhere to the requirement of Sections 97 and 99 of the Sheriffs and Civil Process Act do not render the proceedings and the judgment entered on the 22/9/2008 as null and void.

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RATIONES DECIDENDI

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RECORD OF APPEAL – PRESUMPTION OF CORRECTNESS OF A RECORD OF APPEAL WHERE SAME IS NOT IMPEACHED

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“A record of appeal can only be impeached through affidavit evidence. See Admin. General Ors v. Chukwuogor Nig Ltd (2007) 6 NWLR (PT 1030) 398; Brittania-U Nigeria Limited v. Seplat Petroleum Development Company (2016) LPELR-40007 (S.C). Unless the content of a record of appeal is successfully impeached it is presumed correct. See Sommer v. FHA (1992) 1 NWLR (PT 219) 548; Gonzee (Nig) Ltd v. N.E.R.D.C. (2005) 13 NWLR (Pt 943) 634. The content of the record of appeal is binding on the parties. –

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SERVICE OF PROCESS – CONSEQUENCE OF A PARTY’S FAILURE TO OBJECT TO IRREGULARITIES IN THE SERVICE OF COURT PROCESS BEFORE THE TRIAL COURT

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“In the light of the above and having regard to the fact that the Defendant was represented by a counsel at the lower Court, the defendant is deemed to have waived its right under the Sheriff and Civil Process Act and can no longer challenge the irregularities in the service of the writ of summons. See Akintunde v. Ojo (200) FWLR (PT 117) 1067; Ogbaegbe v. First Bank Of Nigeria Plc(2005) 18NWLR (PT 957) 357; Odua Investment Co. Ltd. v. Talabi (1997) 10 NWLR (PT 523) LPELR 2232 (S.C.). The meaning of this is that it is too late in the day for the Defendant/Appellant to challenge the service of the writ after taking steps to submit to the jurisdiction of the lower Court. –

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SERVICE OF PROCESS – WHETHER A PARTY WHO TOOK PART IN AN IRREGULAR PROCEDURE WITHOUT A FORMAL OBJECTION CAN LATER BE HEARD TO COMPLAIN OF SUCH IRREGULARITY

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“I also agree with the Respondent, that, even if Appellant had a case against the issuance of the writ and service of same on it, without prior order of the trial Court, that by taking full part at the trial, without complaining, Appellant had waived the right to complain about whatever irregularity in the process, and cannot do so on appeal. See Alfa vs Attai & Ors. (2017) LPELR-42579 (SC): The law is trite, that where an action as in this case, was commenced by a procedure that is irregular, a party who took active part in the proceeding without raising a formal objection to the irregular procedure cannot later be heard complaining and praying that the action be set aside on ground of irregularity, which he himself had earlier acquiesced. See Saude vs Abdullahi (1989) LPELR 3017 SC See again C.B.N. vs. Inter-Stella Comm. Ltd &Ors. (2015) 8 NWLR (Pt. 1462) 399;Ezomo vs Oyakhire (1985)1 NWLR (PT.2) 195; Uchendu vs. Ogboni (1999) 5 NWLR (Pt.603) 337 (SC) at 345: –

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PROCEDURAL IRREGULARITY –APPROPRIATE TIME IN RAISING AN OBJECTION ON PROCEDURAL IRREGULARITY

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“The appropriate time at which a party to a Proceedings should raise an objection based on procedural irregularity is at the commencement of the Proceedings or at any time when the irregularity arises, if the party sleeps on that right and allows the Proceedings to continue on the Irregularity to finality, then the party cannot be heard to complain at the concluding state of the Proceedings or on appeal thereafter, that there was a procedural irregularity which vitiated the Proceedings. The Respondent had argued in this appeal at hand that:
By contesting the case to the full on the merits, without earlier taken (sic) a Preliminary objection at the trial Court, the Appellant must be deemed to have waived whatever rights it had under the Section.
See, again Zakirai Vs Muhammad (2017) 17 NWLR (Pt.1594)81; (2017) LPELR 42349 (SC). –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Sheriffs and Civil Process Act|

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