CORAM

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PARTIES

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PRINCE TOYIN KUNLE KAYODE & ORS APPELLANTS

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THE REGISTERED TRUSTEES OF UNITED AFRICAN METHODIST CHURCH

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent commenced this action in 2004 at the High Court of Lagos State by way of originating summons in respect of the land situate at Obanikoro area of Lagos State covering an area of 1062 acres. In its amended statement of claim, the Respondent claimed against the 1st and 2nd Appellants for a declaration as the legal and registered proprietor of the title registered; an order of perpetual injunction restraining the Appellants from further trespass; and an order for possession. The Respondent’s case is that in 1954, it purchased a parcel of land in Obanikoro, Lagos, which included Plot 44, Obanikoro Road (the 1st Appellant’s property) as well as Plot 1 and 3, Buraimoh Street Obanikoro, (the 2nd Appellant’s property).The parcel of land also purportedly included the properties presently in possession and occupation of the 3rd-8th Appellants. The Respondent’s alleged that their root of title derived from a Deed of Indenture Registered as No. 37 at Page 37 in Volume 132 at the Lagos State Lands Registry, Alausa and dated 21st March 1956, between one Jemi Alade and all trustees of the United African Methodist Church. That they were put into possession in 1954 and remained in peaceable occupation until the Appellants trespassed onto the land but the date of trespass was not given. In response, the 1st and 2nd Appellants in their respective defences are that they bought their plots of land in 1961 and 1964 respectively. They developed them, lived in and rented part of each to tenants who lived in the rented portions without any disturbance, until after 2004 when they became aware of the Respondent’s action. It was alleged that without an Order of the Court, the Respondent purportedly served all the originating processes on the Appellants by substituted means, including the 1st and 2nd Appellants by pasting on the entrance gate of the 1st Appellant (Estate of the late Akin Joacquim) as well as the wall of all the buildings of the unknown persons. Hence, the 1st and 2nd Appellants objected to the suit on the ground that the suit was not initiated by due process of law and prayed that it be struck out. They also raised objection challenging the jurisdiction of the trial Court that the action is statute barred in view of Section 16(2), 9 and 21 of the Limitation Law of Lagos State, 2003. The Respondents did not file a reply to both of the Appellants statements of defence, therefore they did not challenge the facts averred therein. At the close of the trial, the Court in its judgment granted all the claims of the Respondent. The 1st and 2nd Appellants being dissatisfied with the judgment appealed to this Court vide their Notice of Appeal.

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HELD

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Appeal Allowed

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ISSUES

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Whether the Learned Trial Judge was right in refusing the stay of execution when the Appellant is raising the issue of juristic personality of the Respondent as a recondite ground Whether the court below was right in refusing the application for stay Whether a court can entertain the appeal when same is filed out of time.

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RATIONES DECIDENDI

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SERVICE OF PROCESS – EFFECT OF FAILURE TO SERVE COURT PROCESS (ES) ON A PARTY TO A PROCEEDING

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“An originating summon must be effectively served for it to confer jurisdiction on the Court. No doubt, there was no renewal of the originating summons and no proper service was effected by the appellants before the judgment of the trial Court on 20th October, 2010. In the case of Societe Generale Bank Nigeria v. John Adebayo Adewunmi (2003) LPELR-3081 (SC) PP. 15-18 PARAS B-A (2003) 10 NWLR (Pt. 829) P. 526 (2003) 4 SC (Pt. 1) P. 93, the Supreme Court held that:
“Service of a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seized of the matter. Clearly due service of process of Court is a condition sine quo non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set aside as a nullity.”
Thus, the Supreme Court made it clear that failure to serve a process is a fundamental vice, it deprives the trial Court of the necessary competence and jurisdiction to hear the suit. The condition precedent to the exercise of jurisdiction was not fulfilled. The trial Court had no jurisdiction to have heard the matter without ensuring that the appellants had been served with the originating process. See, also Obimonure v. Erinosho and Anor (1966) ALL NLR (Reprint) 250 at 253, Adegbola v. Osiyi & Ors (2017) LPELR-4247, (SC) and Skenconsult (Nig.) Ltd & Anor v. Ukey (1981) LPELR-3072 (SC) PP. 22-23, Paras.D-G. –

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ORIGINATING PROCESS – EFFECT OF AN EXPIRED ORIGINATING PROCESS – PROCEDURE FOR RENEWAL OF AN EXPIRED ORIGINATING PROCESS

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“From the date the originating process was taken out on 8th November, 2004 and 15th November, 2006 when the publication in the Newspaper was made, the process to be served was no longer in force, it had expired and there was nothing on record to show that it was renewed up till the point of the publication. It was a dormant and ineffective process which had not been reactivated or the life renewed. The renewal would be on application to the Court. There was none in this case. See, RFG Ltd and Anor v. Skye Bank PLC (2012) LPELR-7880 (CA) P. 22, PARAS. C-F and the Apex Court’s decision, Michael Kolawole v. Pezzanni Alberto (1989) LPELR-1700 (SC). On the other hand, the application ought to have been done before the expiration of the originating process. The effect of an expired originating process is that it is in abeyance and can only be reactivated through an application within twelve (12) months of its issuance. Order 6 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules, 2004 provides that:
7. “A judge may order two renewals in each case strictly for good cause and upon prompt application, provided that no Originating Process that has not been served shall be in force for longer than a total of twelve (12) months.
The registrar shall state the fact, date, and duration of renewal of every renewed Originating Process.”
See, Awojolu V. Odeyemi & Ors (2012) LPELR-14796 (CA), Ewukoya & Anor v. Buari & Ors (2016) CA, Kolawole V. Alberto (supra), Further, the parties cannot waive the requirement that an expired originating process be renewed before service is effected. In Ayalogu v. Agu (supra), this Court rejected the renewal of an expired writ suo motu by the trial Court; this Court held that the renewal has to be on the application by the plaintiff. In the present case, there was no evidence that the originating process published in the Punch Newspaper of 15th November, 2006 had been renewed following an application to the trial Court for the extension of the life of the originating process and the Court cannot suomotu renew the life of an expired originating summons that commenced the action. See, also MTN v. Are (2014) LPELR-23807 (CA).-

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PERIOD OF LIMITATION – DETERMINATION OF WHETHER AN ACTION IS STATUTE BARRED

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“The learned Senior Counsel had argued that the Respondent did not know that there were trespassers on the land but, accrual of cause of action does not depend on knowledge (of the an alleged trespass) of the respondent, it runs from the date of the adverse possession, in this case 1961 and 1963 respectively, see Sections 16, 17, 19 and 21 of the Limitation Law of Lagos State. I am of the view that the action is statute barred and ought not to have been entertained by the trial Court, which lacked jurisdiction to do so. See Chief E. W. J. Woherem JP v. Joel Emereuwa & Ors (2004) LPELR-3500 (SC) PP. 16-17, PARAS E-A; (2004) 13 NWLR (Pt. 890) P. 398 (2004) 6-7 SC P. 161. In Aremo II v. Adekanye and ORS (2004) LPELR-544 (SC) P. 18, PARAS. B-D, per Edozie, JSC on determining the period of limitation held thus:
“The period of limitation begins to run from the date on which the cause of action accrued. To determine whether an action is statute barred, all that is required is for one to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See the case of Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 20-21.”
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PRELIMINARY OBJECTION – DUTY OF COURTS TO CONSIDER A PRELIMINARY OBJECTION FIRST BEFORE RESOLVING THE SUBSTANTIVE APPEAL

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“It is trite that where a preliminary objection has been raised in the case of an appeal, against the entire appeal or part of it, same has to be looked into first and resolved before going into the substantive appeal or the rest of the issues if need be. See Emmanuel I. Olagbenro and Ors v. Prince Saliu Olayiwola & Ors (2014) LPELR-22595 (CA), P. 59, PARAS. B-C; (2014) 16 NWLR (Pt. 1434) P. 313; F.B.N. PLC v. T.S.A. Industries Ltd (2010) LPELR-1283 (SC), P. 13, PARAS. B-E and Achonu v. Okuwobi(2017) LPELR-42102 (SC) PP. 4-5, PARAS. E-A. –

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ISSUE OF JURISDICTION – WHETHER THE ISSUE OF SERVICE OF PROCESS IS JURISDICTIONAL AND CAN BE RAISED AT ANY STAGE OF THE PROCEEDINGS

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“I would say that the issue of service is jurisdictional and can be raised at any stage, even at the Supreme Court. It need not have formed part of the judgment of the lower Court contrary to the submissions of the learned Senior Counsel. In the case of P.D.P. and Ors v. Ezeonwuka & Anor (2017) LPELR-42563 (SC) P. 92, PARAS. A-D his Lordship, Muhammad JSC at page 92, paras. A-D in this respect reiterated thus:
“It has long been settled that the issue of jurisdiction may, by whatever name, form or shade, be raised and at any stage. The issue, the principle further allows, may be raised even viva voce and for the first time in this Court. The rationale behind the principle lies in the fact that jurisdiction remains the fulcrum of any valid adjudication as without it the entire proceedings of the Court, no matter how well conducted, is an exercise in futility being a total nullity.
See Omokhafe v. Esekhomo (1993) LPELR-2649 (SC) Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127, Omomeji & Ors v. Kolawole & Ors (2008) LPELR-2650 (SC).”
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SERVICE OF COURT PROCESS – WHETHER THE NON SERVICE OF COURT PROCESS IS AN IRREGULARITY THAT CAN BE WAIVED

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“Any matter in which service is not effected on the other party is fundamental and not an irregularity that could be waived. A case must be properly initiated to confer jurisdiction on the Court, otherwise the proceedings are a nullity. See the popular case of Madukolu and Ors v. Nkemdilim (1962) 1 ALL NLR 587 at 594 also S.G.B.N. Ltd v. Adewunmi (2003) 10 NWLR (Pt. 829) P. 529 and Adegbola v. Osiyi & Ors (2017) LPELR-42471 (SC) PP. 7-9, PARAS. E-A. –

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SERVICE OF ORIGINATING PROCESS – EFFECT OF SERVICE OF A DORMANT OR EXPIRED ORIGINATING PROCESS

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“In the case of Mobile Telecommunications Network (M.T.N.) v. H.R.H. Oba Raphael Sunday Are and Ors (2014) LPELR-23807 (CA) at PP. 27-28, PARAS. C-F, on service of an expired writ of summons, I had held that:
“It is the law that a writ of summons which has not been served for twelve (12) months remains valid but lies dormant and ineffective for service waiting to be reactivated and rendered efficacious in the manner prescribed by the rules of Court. The Court can grant an application which will render the writ as effective as when it was issued originally and before the period of twelve months elapses. In this case, there was no application sought nor granted. See: Kolawole v. Alberto (1989) 1 NWLR (Pt. 98) 392, 20 NSCC (Pt. 1) 213. In above case, His Lordship then of the Apex Court, Karibi-Whyte, JSC at page 231 explained the position of the law thus:- “A writ of summons which has not been served for twelve (12) months remains a valid writ of summons, but lies dormant and ineffective for service waiting to be reactivated and rendered efficacious in the manner prescribed by rules of Court. The Court can grant an application which will render the writ as effective as when it was issued originally and before the period of twelve months elapsed. ”
See, also Idowu v. Bamijoko (1996) 7 NWLR (Pt. 461) 496 which interpreted Rule 6 of Order 5 of the Lagos State High Court (Civil Procedure) Rules which is in parimateria with Kwara State Rules in Order 6 Rules 6(1) and (2), see Rfg Limited & Anor v. Skye Bank Plc (2012) LPELR-7880 (CA) to the effect that no proper service can be effected or emanate from an expired writ of summons. The service of a dormant originating process deprived the lower Court of the requisite jurisdiction to hear the matter. In my humble view, the lower Court had no jurisdiction to try the matter and I so hold. –

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SERVICE OF ORIGINATING PROCESS– IMPORTANCE OF SERVICE OF ORIGINATING PROCESS

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“The service of an originating Court process is fundamental and it activates the jurisdiction of the Court, where it is lacking, any decision of the Court without such service renders the entire proceedings a nullity. His Lordship of the Apex Court, Kekere-Ekun, JSC clearly and succinctly explained the importance or essence of the service of an originating process and the consequences of failure to do so in the case of Emeka v. Okoroafor (2017) LPELR-41738 (SC) PP. 31-33, PARAS. D-E thus:
“My Lords, I deem it appropriate to commence the resolution of this issue by considering briefly the law governing the service of originating processes. The settled position of the law was clearly stated by His Lordship, Musdapher, JSC (as he then was) in Kida v. Ogunmola (2006) 6 SCNJ 165 @ 174 thus: ” service of process, is crucial and fundamental. See Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554; S.G.B.N. v. Adewunmi (2003) 10 NWLR (Pt. 829) 526; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of the court’s jurisdiction was not fulfilled.”
To underscore the importance of service, His Lordship continued at page 175 lines 5-7 (supra);
“Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of counsel since where there is no service, there is no valid trial.” The principle was re-stated in the recent decision of this Court in; Ihedioha v. Okorocha (2016) 1 NWLR (Pt. 1492) 149 @ 179 D-F by Okoro, JSC: ” I agree that it is not every non-compliance with the Rules of Court that should vitiate the proceedings. However, where the non-compliance robs the Court of its jurisdiction, the processes and the proceedings must be set aside. I must emphasize that service of process is an important aspect of the judicial process. Failure to serve a named party with Court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) …. Any beach (sic) of this principle (of fair hearing) renders the proceedings a nullity. See: Chime v. Onyia(2009) ALL FWLR (Pt. 480) 673 @ 730-731 PARAS. H-B; (2009) 2 NWLR (Pt. 1124) 1. “See also: Skenconsult (Nig.) Ltd v. Ukey(1981) 1 SC 6: Obimonure v. Erinosho (1966) 1 ALL NLR 250; Craig v. Kanseen (1943) K.B. 256; National Bank (Nig.) Ltd v. Guthrie (Nig.)Ltd. (1993) 3 NWLR (Pt. 284) 643. It is therefore settled beyond dispute that the service of an originating process on a party to an action is a condition precedent to the exercise of the Courts jurisdiction, as any party against whom a suit or process is filed has the right to know that a suit had been instituted against him, what the claims are and an opportunity to defend himself if he has a defence thereto.”
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CONSEQUENTIAL ORDER– WHETHER COURTS CAN MAKE CONSEQUENTIAL ORDER AGAINST A PARTY WHO’S NAME HAS BEEN STRUCK OUT

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“The trial Court having found the action against the Estate of the Late Joaquim, (the appellant) is incompetent ought not to have proceeded on the merits of the case in respect of the appellant. The trial Court having struck out the name of the appellant no longer had the power to make any consequential order against the appellant; any order in that respect is a nullity. See, Adenuga v. Odumeru (2003) 4 SC (Pt. 1) P. 1 at 13 and Oyeyemi & Ors v. Owoeye and Anor (supra) cited and relied upon by the learned counsel to the appellant to the effect that any order against a non-party is not binding on the said party. I hold that the trial Court having found that the action against the Estate of Late Joaquim ought not to have proceeded on the merits of the case and given an order against the same party that had been struck out by the Court in the same judgment. –

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RESPONDENT’S NOTICE –RATIONALE FOR FILING A RESPONDENT’S NOTICE

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“The respondent’s Notice was open to the respondent, who having had victory in the Court below but dissatisfied with certain aspects of the reasons for that victory now asks that the reasons be varied in whole or in part, in this case, in addition to the reasons given for the victory. See, Nabisco Inc. v. Allied Biscuits Co. Ltd (1998) LPELR-1932 (SC) P. 14, PARAS.C-A and Arisons Trading & Engineering Co. Ltd. v. Military Governor Of Ogun State & Ors.(2009) LPELR-554 (SC), PP. 60-62, PARAS.D-A. The authorities cited and relied upon by the learned senior counsel would be applicable where the appellant is a party in the action and the decision of the Court. In the present case, it is hypothetical the trial Court having struck out the appellant’s name. There was no cross-appeal against the order of striking out”.-

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)|High Court of Lagos State (Civil Procedure) Rules 2004|Kwara State Rules|Limitation Law of Lagos State, 2003|

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