CORAM

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PARTIES

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MR. REUBEN IZEZE

APPELLANTS 

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INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS

RESPONDENTS 

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AREA(S) OF LAW

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ACTION, APPEAL, COURT, ELECTION, JUDGMENT AND ORDER, JURISDICTION, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

The Appellant herein and the 3rd Respondent are members of Peoples Democratic Party. They contested in the party’s primaries to elect her representative for the Ughelli South Constituency in the Delta State House of Assembly, for the General Elections. The 3rd  Respondent who was the Plaintiff at the court of first instance claimed to have won the election but the Party ( the 2nd Respondent) substituted his name with that of the Appellant and submitted same to the 1st Respondent( INEC) as her elect for the general election. Unsatisfied by the turn of event, the 3rd Respondent instituted an action challenging the activities of the party amongst others. The Trial Court struck out the suit for lack of jurisdiction as the amended originating summons is invalid, null and void for non-compliance with Section 97 of the Sheriff and Civil Process Act. The 3rd Respondent aggrieved with the decision of the Court appealed to the Court of Appeal. The Court of Appeal upset the judgment of the trial Court and held that the Originating process by the 3rd Respondent was properly issued and served on the 1st and 2nd Respondents in compliance with the provision of Order 6 Rules 13-17 of the Federal High Court Civil procedure Rules, Section 97 of the Sheriff and Civil Process Act. The Appellant dissatisfied with the judgment of the Court of Appeal has appealed to the apex Court.

 

 

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HELD

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Appeal Allowed

 

 

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ISSUES

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1. Whether or not the writ that started, commenced, the present action leading to this appeal was void for non-compliance with Sections 97, 98 and 99 of the Sheriffs and Civil Process Act.

 

 

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RATIONES DECIDENDI

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ACTION

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CITATION OF CASES -RATIONALE FOR CITING CASES

“A case is an authority for what it decides. Relying on a case without relating it to the facts that induced it will amount to citing the case out of the proper context. The whole purpose of citing a case is for the law on it to be known.” PER O. RHODES-VIVOUR, J.S.C.

 

 

 

ACTION

ORIGINATING PROCESS- EFFECT OF A DEFECT IN THE SERVICE OF A VALID ORIGINATING PROCESS

“If an originating process is valid any defect in service is a mere irregularity which may make such an originating process voidable but certainly not void.” PER O. RHODES-VIVOUR, J.S.C.

 

ACTION, COURT, PRACTICE AND PROCEDURE

SERVICE OF ORIGINATING PROCESS – EFFECT OF A PARTY’S FAILURE TO COMPLY WITH THE MANDATORY PROVISION OF SECTION 97 OF THE SHERIFF AND CIVIL PROCESS ACT

“When the words used in Section 97 of the Sheriff and Civil Process Act are given their ordinary plain meaning without embellishments, it becomes very clear that the provision is mandatory. Service of an originating process without the endorsement as clearly stated under Section 97 supra is not an irregularity. It is a fundamental defect which renders the originating process void. See Adegoke Motors Ltd v Adesanya & Anor (1989) 20 NSCC (Pt.II) p.327. Nwabueze & Anor v. Justice Obi Okoye (1988) 19 NSCC (Pt. III) p.53. Skenconsult (Nig) Ltd v Ukey (1981) 12 NSCC P1.

Under Section 97 of the Sheriff and Civil Process Act, if an originating process for service out of jurisdiction does not have the endorsement:

“This summons (or as the case may be) is to be served out of the .. ….state (as the case may be)…. and in the …………….state (or as the case may be).”

Such an originating summons is invalid. It is clear that Section 97 of the Sheriff and Civil Process Act is couched in mandatory terms. The Courts would have no discretion under Section 97 of the Sheriffs and Civil Process Act. Once the claimant fails to comply with the mandatory provision in Section 97 supra the Court would no longer have jurisdiction to adjudicate on the suit. It is fundamental that the claimant obeys and comply with the provision. No valid appearance can be entered by the defendant to an originating process that does not have the mandatory endorsement except to enter conditional appearance.” PER O. RHODES-VIVOUR, J.S.C.

ACTION, COURT, PRACTICE AND PROCEDURE

SERVICE OF AN ORIGINATING SUMMONS – TIME WITHIN WHICH TO REPLY TO A WRIT OF SUMMONS

“Service of an invalid amended originating summons on the 1st and 2nd defendants is akin to no service at all. There is absolutely nothing to respond to by the defendants. Section 98 of the Sheriff and Civil Process Act provides for concurrent writs. It reads:

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.

While Section 99 provides for the time limited for answering to summons. It states that:

99. The period specified in a writ of summons for service under this part as the period within which a defendant is require 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.

The words used are clear and unambiguous and must be given their ordinary usual meaning. See Mobil v. F.B.I.R. (1977) 3SC P.53 Toriola v. William (1982) 7 SC p. 27 Section 98 becomes applicable after leave has been obtained and service is to be effected while under Section 99 supra the defendant is to respond within 30 days after service. Since there was non-compliance with Section 97, compliance with Sections 98 and 99 no longer arise. The amended originating summons is irredeemable, worthless and invalid.” PER O. RHODES-VIVOUR, J.S.C.

ACTION, COURT, PRACTICE AND PROCEDURE

SERVICE OF ORIGINATING PROCESS- REQUIREMENTS TO BE MET BEFORE RAISING AN ISSUE OF NON-COMPLIANCE WITH SERVICE OF ORIGINATING PROCESS.

“To properly raise the issue of non-compliance with the provisions of Sections 97, 98 and 99 of the Sheriff and Civil Process Act there must be clear evidence that the originating process was not endorsed for service outside jurisdiction of the Court as required by Section 97. There must be evidence that the defendant was required to appear in Court within a period of less than 30 days after service.” PER O. RHODES-VIVOUR, J.S.C.

 

ACTION, COURT

SERVICE OF ORIGINATING PROCESS OUTSIDE JURISDICTION- SERVICE OF ORIGINATING PROCESS OUTSIDE JURISDICTION UNDER THE PROVISIONS OF ORDER 6 RULE 13 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES VIS -A-VIS THE SHERIFF AND CIVIL PROCESS ACT

“It is important at this stage that I examine relevant provisions of the Federal High Court (Civil Procedure) Rules. Order 6 Rule 13:

Service out of jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a judge in chambers whenever

13(g). Any person out of jurisdiction is a necessary or proper party to an action properly brought against some other party within the jurisdiction; or

14(i). Every application for leave to serve a writ or notice on a defendant out of the jurisdiction shall be supported by affidavit or other evidence stating that in the belief of the deponent the plaintiff has a good cause of action and showing in what place or country the defendant is or probably may be found, and the grounds upon which application is made.

(2) No such leave shall be granted unless it is made sufficiently to appear to the Court or a judge in chambers that the cause is a proper one for service out of jurisdiction under these Rules.

17.(1) Service out of jurisdiction may be allowed by the Court or a judge in chambers of the following processes or of notices thereof, that is to say.

(a) An originating summons, where the proceeding begun by an originating summons might have been begun by a writ of summons under these Rules.”

The above was not considered by the Federal High Court. The learned trial judge struck out the suit for failure to comply with the provision of Section 97 of the Sheriff and Civil Process Act. A diligent examination of Order 6 Rules 13-17 of the Federal High Court (Civil Procedure) Rules reveals that the requirement that the originating process for service out of jurisdiction must be endorsed as provided by Section 97 of the Sheriff and Civil Process Act is not part of the said Rules. The Sheriff and Civil Process Act is an Act of the National Assembly, while the Federal High Court (Civil Procedure) Rules is a subsidiary legislation, a bye law, inferior to an Act of the National Assembly.” PER O. RHODES-VIVOUR, J.S.C.

 

ACTION, COURT

SERVICE OF ORIGINATING SUMMONS – WHETHER A VALID ISSUANCE AND SERVICE OF AN ORIGINATING PROCESS CAN ENSUE UPON NON COMPLIANCE WITH THE REQUIREMENT OF SECTION 97 OF THE SHERIFFS AND CIVIL PROCESS ACT

“The mandatory requirement of Section 97 of the Sheriffs and Civil Process Act must be complied with before the originating process can be valid. It is only after there is a proper endorsement on the originating process, that issuance and service follows. Where, as in this case the originating process is invalid issuing and serving it is an exercise in futility as you cannot serve a void process. PER O. RHODES-VIVOUR, J.S.C.

COURT, JURISDICTION, PRACTICE AND PROCEDURE

LACK OF JURISDICTION – DUTY OF A COURT WHERE IT LACKS JURISDICTION AS A RESULT OF A FUNDAMENTAL DEFECT IN THE ORIGINATING PROCESS

“Once a Court lacks jurisdiction as a result of a fundamental defect in the originating process all that can be done is to strike out the case. If it is still the desire of the plaintiff to proceed with his claim, he can only do so by filing a fresh action. PER O. RHODES-VIVOUR, J.S.C.

 

JUDGMENT AND ORDER

ORDER OF COURT – STATUS OF AN ORDER OF COURT

“The learned counsel for the appellant contended that the order of the Court of Appeal sending the case back for trial on the merit without considering and ruling on the status of the case as to whether or not it is statute barred was an order in futility, there being and remaining a binding and subsisting decision of a Court which had not been set aside. I cannot agree more with the stance of the appellant. The situation is all the more germane in that an order or judgment of Court, no matter the fundamental vice that afflicts it remains legally binding and valid until set aside by due process of law. That is why in the case at hand with the standing decision of the trial Court that the suit was statute barred which was not reversed, the position of things remains that the suit is statute barred and incompetent and there is nothing to remit to the trial Federal High Court on which a hearing on the merits can be done. In other words the suit by that declaration of the trial Court has gone into nothingness and one cannot place anything on that void. See Attorney General Anambra State v Attorney General of the Federation (2005) 9 NWLR (Pt.931) 572 per Katsina-Alu JSC (as he then was); Rossek v ACB Ltd (1993) NWLR (Pt.312) 2 & 3; Wiiliams v Sanusi (1961) All NLR 334 at 337; Yonwuren v Modern Signs (1985) 1 NWLR (Pt.2) 3 All ER 1169; (1962) AC 1523. PER M. U. PETER-ODILI, J.S.C

 

 

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CASES CITED

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STATUTES REFERRED TO

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Federal High Court (Civil Procedure) Rules

Public Officers Protection Act.

Sheriffs and Civil Process Act.

Supreme Court Act

 

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