CORAM

---

Folasade Ayodeji Ojo Justice of the Court of Appeal

Binta Fatima Zubairu Justice of the Court of Appeal

Uwabunkeonye Onwosi Justice of the Court of Appeal

---

PARTIES

---

1. PARADIGM COMMUNICATIONS LIMITED

2. SYLVESTER EBHODAGHE

APPELLANTS 

---

HIS EXCELLENCY OBONG (ARC.) VICTOR ATTAH

RESPONDENTS 

---

AREA(S) OF LAW

---

CIVIL PROCEDURE, INTERLOCUTORY APPEALS, SERVICE OF PROCESS, JURISDICTION, PRELIMINARY OBJECTIONS, RECORD OF APPEAL, LEAVE TO APPEAL, SHERIFF AND CIVIL PROCESS ACT, CONSTITUTIONAL LAW, DEFAMATION, PRACTICE AND PROCEDURE

 

---

SUMMARY OF FACTS

The Respondent, His Excellency Obong (Arc.) Victor Attah, commenced an action against the Appellants (Paradigm Communications Limited and Sylvester Ebhodaghe) at the High Court of Akwa Ibom State via a Writ of Summons filed on 13th August 2014. The Respondent claimed N1,000,000,000.00 (One Billion Naira) as damages for libel and sought a perpetual injunction restraining the Appellants from repeating the alleged libel.

The case involved service of process outside jurisdiction, as the writ was issued in Akwa Ibom State but was to be served in Lagos State. The Appellants filed a Conditional Memorandum of Appearance on 30th June 2016, and on 2nd August 2016, filed a Notice of Preliminary Objection challenging the competence of the Respondent’s suit on the ground that the Writ of Summons was not duly marked for service outside the State of issuance as required by Section 97 of the Sheriff and Civil Process Act. They also filed their Statement of Defence alongside the preliminary objection.

The trial judge delivered a ruling on 19th January 2017, dismissing the Appellants’ Notice of Preliminary Objection and awarded costs of N20,000.00 against them. The trial judge held that it was the duty of the court’s registrar to mark the writ for service outside jurisdiction and that the failure to do so was a mere irregularity.

Dissatisfied with this interlocutory ruling, the Appellants filed a Notice of Appeal on 31st January 2017 and an application for leave to appeal. The trial court granted leave on 8th March 2017, though there was an apparent typographical error in the order referring to a notice of appeal filed on 21st January 2017 instead of 31st January 2017.

The Respondent raised a preliminary objection to the appeal, challenging its competence on multiple grounds: (1) that leave was not obtained within 14 days before filing the notice of appeal; (2) that the notice of appeal was not signed by a legal practitioner; (3) that the leave was granted outside the 14-day period; (4) that there was a discrepancy in dates; and (5) that the record of appeal was incomplete.

The Court of Appeal found that while the preliminary objection succeeded on the ground of incomplete record of appeal, it proceeded to determine the substantive appeal as required for a penultimate court. On the merits, the court found that Section 97 of the Sheriff and Civil Process Act is a statutory provision that cannot be waived and that non-compliance renders the writ incompetent.

 

---

HELD

---

1. The appeal was struck out for want of jurisdiction due to incomplete record of appeal.

2. However, the Court proceeded to determine the substantive appeal as required for a penultimate court and found in favor of the Appellants on the merits.

3. The Court held that Section 97 of the Sheriff and Civil Process Act is a statutory provision that cannot be waived and non-compliance does not amount to a mere irregularity but affects jurisdiction.

4. The Court found that it is not the duty of the court’s registrar to mark writs for service outside jurisdiction – this is a requirement that must be fulfilled by the party seeking service.

5. The Court held that filing a statement of defence alongside a preliminary objection does not constitute taking a fresh step in the proceedings.

6. The Court found that the trial judge erred in awarding costs when dismissing the preliminary objection, as the objection should have succeeded.

 

---

ISSUES

---

Preliminary Objection Issues: Whether the appeal as presently constituted is competent to enable the Court exercise its jurisdiction to hear and determine same?

Substantive Appeal Issues:

1. Whether non-compliance with Section 97 of the Sheriffs and Civil Process Act amount to a mere irregularity?

2. Whether the lower Court was not in error to hold that it was the duty of the lower Court’s registrar, to mark the writ for service outside the state of issuance?

3. Whether the appellants as defendants at the lower Court, after entering a conditional appearance and filing a Notice of Preliminary Objection, took any fresh step in the suit by filing their statement of defence?

4. Whether the learned Trial Judge erred in awarding a cost of N20,000.00 (Twenty Thousand Naira) when he dismissed the Appellants’ Notice of Preliminary Objection.

 

---

RATIONES DECIDENDI

---

LEAVE AS PRECONDITION FOR INTERLOCUTORY APPEALS

---

Candidly, leave is a pre-requisite for filing an appeal against interlocutory appeal to Court of Appeal from the High Court. There are two categories of right of appeal i.e. Appeal as of right and Appeal with leave. It is not disputed by the parties that an appeal to this Court from an interlocutory decision of the High Court on grounds of mixed laws and fact can only be filed where prior leave of the trial High Court or this Court has been obtained.– Per UWABUNKEONYE ONWOSI, J.C.A.

 

---

CONSTITUTIONAL REQUIREMENT FOR LEAVE TO APPEAL

---

Where an appeal can only be lodged with leave of Court under Section 242 of the 1999 Constitution, leave is a condition precedent to bringing the appeal. Section 242 of the Constitution did not create any right of appeal. The only right created by Section 242 of the 1999 Constitution is the right of the prospective Appellants to apply for leave to appeal. – Per UWABUNKEONYE ONWOSI, J.C.A.

 

---

RETROSPECTIVE EFFECT OF DEEMING ORDERS

---

Where an appellate Court grants an application for leave to appeal and also deems the notice of appeal being properly filed the appeal is therefore regularized and has retrospective effect. – Per UWABUNKEONYE ONWOSI, J.C.A.

 

---

COURT’S POWER TO CORRECT TYPOGRAPHICAL ERRORS

---

In the ruling delivered by the trial Court, the Learned Trial Judge properly deemed the Notice of Appeal filed on the 31st day of January, 2017, that, was filed alongside with the Appellants’ Motion for Leave to appeal. But on the face of the ruling and the order granted by the trial Court. The Learned Trial Judge erroneously wrote ’21st day of January, 2017′ instead of 31st day of January, 2017. Of course, Court has the powers to correct any typographical error made by the Court. – Per UWABUNKEONYE ONWOSI, J.C.A.

 

---

EFFECT OF INCOMPLETE RECORD OF APPEAL ON JURISDICTION

---

The Law is that where there is a failure to compile and transmit competent records of appeal, the appeal may be dismissed. In effect, the incompleteness of a Record of Appeal deprives an appellate Court of its means to effectively hear and determine an appeal before it. Without seeing the material that was before the trial Court, the appellate Court would not be in a position to reach a just resolution of the Issues brought before it.– Per UWABUNKEONYE ONWOSI, J.C.A.

 

---

COMPLETE RECORD AS CONDITION PRECEDENT TO JURISDICTION

---

The compilation and transmission of a complete Record of Appeal is a condition precedent to the assumption of jurisdiction by an appellate Court. It is unequivocal that a complete record is what foists the Court with jurisdiction to hear and adjudicate over an appeal. Where the Record of Appeal is incomplete or incorrect it robs the Court of jurisdiction to hear same. – Per UWABUNKEONYE ONWOSI, J.C.A.

 

---

DUTY OF PENULTIMATE COURT TO DECIDE ON MERITS

---

However, this is a penultimate Court. The law insists that the opinion of this Court on all the issues raised before it must be aired for the benefit of the ultimate Court, in the event of an appeal thereto. This would obviate the need to remit the appeal back to this Court, should the Apex Court hold a contrary view on the preliminary objection.– Per UWABUNKEONYE ONWOSI, J.C.A.

 

---

MANDATORY REQUIREMENT FOR ENDORSEMENT OF WRITS FOR SERVICE OUTSIDE JURISDICTION

---

Section 97 of the Sheriff and Civil Processes Act is a Statutory provision and cannot be waived either by the act of the Registrar of a Court, parties or non — compliance be construed as mere irregularity. 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. – Per UWABUNKEONYE ONWOSI, J.C.A.

 

---

EFFECT OF NON-COMPLIANCE WITH ENDORSEMENT REQUIREMENTS

---

The above provision requires that if a writ is to be served outside jurisdiction, the writ must have an endorsement to that effect. If such an endorsement is not written on the writ, the Court lacks jurisdiction to entertain the matter. This is the strict position of the law as the word ‘shall’ in the provision must be given its mandatory sense that is a compulsory and mandatory requirement failing which makes the writ incompetent. – Per UWABUNKEONYE ONWOSI, J.C.A.

 

---

FEDERAL LAW SUPREMACY OVER CONFLICTING STATE LAWS

---

Sheriff and Civil processes Act is an Act of National Assembly. Therefore, any State Law that is in conflict with the provision will be void to the extent of inconsistency. – Per UWABUNKEONYE ONWOSI, J.C.A.

 

---

TWO SCHOOLS OF THOUGHT ON JURISDICTION AND MERITS

---

There are two schools of thought on the issue of whether the Court of Appeal, after finding that a trial Court lacked jurisdiction to entertain a particular case, ought to proceed to give judgment on the merits of the case, namely: a. The first is that if the penultimate Court finds that it has no jurisdiction over an appeal or that the trial Court was right to decline jurisdiction it should say so and proceed to give a decision on the merits. b. The second is that if the Court of Appeal is of the view that a sole issue, for instance jurisdiction, disposes of the Appeal there would be no need for the Court to consider other issues. – Per FOLASADE AYODEJI OJO, J.C.A.

 

---

EXCEPTIONS TO INCOMPLETE RECORD RULE

---

An appeal can be heard even when the records are incomplete, especially where the Court is of the opinion that the missing part of the record is immaterial or that the missing part cannot affect the decision of the Court one way or the other. – Per FOLASADE AYODEJI OJO, J.C.A.

 

---

APPELLATE COURT CANNOT CONJECTURE MISSING FACTS

---

An incomplete record of appeal borders on the competence of the appellate Court to entertain the appeal as it is not within the province of the appellate Court to conjecture facts or the contents of a document that is not before it. The complete record of appeal is crucial, without it, the adjudicatory role of appellate Court will be difficult to undertake. – Per BINTA FATIMA ZUBAIRU, J.C.A.

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Section 242 – Interlocutory appeals with leave

3. Sheriff and Civil Process Act

4.. Section 97 – Endorsement for service outside jurisdiction

5. Court of Appeal Act 2004 (as amended)

6. Section 24 – Time limits for appeals

7. Court of Appeal Rules 2016/2021

8. Akwa Ibom State High Court (Civil Procedure) Rules 2009

 

---

CLICK HERE TO READ FULL JUDGMENT

---