STEPHEN EMOGA VS THE STATE
July 1, 2025EMOGA V THE STATE
July 2, 2025Legalpedia Citation: (1997) Legalpedia (SC) 34011
In the Supreme Court of Nigeria
Fri Jul 18, 1997
Suit Number: SC. 31/1991
CORAM
MUHAMMADU LAWAL UWAIS JUSTICE, SUPREME COURT (Presided)
ABUBAKAR BASHIR WALI JUSTICE, SUPREME COURT
CHISTOPHER MITCHELL CHUKWUMA-ENEH, JUSTICE, SUPREME COURT
IDRIS LEGBO KUTIGI JUSTICE, SUPREME COURT (Dissented)
YEKINI OLAYIWOLA ADIO JUSTICE, SUPREME COURT
ANTHONY IKECHUKWU IGUH JUSTICE, SUPREME COURT
PARTIES
ODUA INVESTMENT COMPANY LIMITED APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The plaintiff issued a writ of summons at the Ikeja High Court, addressed to the defendant with an Ibadan address. The writ was served in Ibadan. The defendant entered an unconditional appearance and filed a statement of defence. The plaintiff then took out a summons for dircc tions and the same was heard by the learned trial Judge who then fixed dates for the trial of the case. Before the hearing date the defendant brought a Motion on Notice to strike out the writof summons and othcr proceedings in the suit.
HELD
Appeal dismissed.
ISSUES
Does compliance with section 97 and/or section 99 of the Sheriffs and Civil Process Act (now Cap 407 Laws of the Federation of Nigeria 1990 and hereinafter is referred to as the Act) coupled with breach of the rule of Court requiring leave of the court or a Judge for a writ to be served outside jurisdiction render the writ and/or service of it a nullity or mere irregularity? ?
RATIONES DECIDENDI
STATUS OF A VOID ACT
All the authorities are agreed that where an act is void, then it is in law a nullity. It is not only bad, but incurably bad. Any non-compliance or defect that goes to the competence or jurisdiction of a court is fatal; it renders the proceedings a nullity “however well conducted and decided: the defect is extrinsic to the adjudication. PER OGUNDARE, JSC
WRIT IF SERVICE OUTSIDE JURISDICTION
Where the defendant is out of jurisdiction no writ for service out of the jurisdiction can be issued except by leave of the Court. PER OGUNDARE, JSC
CASES CITED
Madukolu & Ors v.Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587 at 590. MacFoy v. UAC. (1962) AC 152 at 160 PC.Nwabueze and NEPA v. Onah (1997) 1 NWLR (Pt.484) 680.Williams v. Cartionright (1885) 1 Q.B. 142 C.A.Bowlong v. Cox(1926)A.C. 751, 754.Re Eager, Eager v. Johnstone (1882) 22 Ch. D. 86Nwabueze & Anor. v. Obi Okoye, (1988) 4 NWLR (Pt. 91) 664Ariori & Ors. v. Elemo & Ors. (1983) 1 SC. 13.Skenconsult (Nig.) Ltd and Anor. v. Ukey (1981) 1 SC 6Ezomo v. Oyakhire (1985) 2 SC.260; (1985) 1 NWLR (Pt. 2) 195
STATUTES REFERRED TO
Sheriffs and Civil Process Act. Cap. 407, Laws of the Federation of Nigeria, 1990?
