Adegoke Motors Ltd. Vs Dr. Babatunde Adesanya (1990)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C.

On the 27th day of February, 1989, Mr. Awodein for the defendant/appellant moved his motion dated 22/2/89 seeking the leave of this honourable Court to amend his Notice and Grounds of Appeal. The Notice of Appeal was dated 21st February, 1989, and had already been filed. As the motion was not opposed by Mr. Tinubu for the respondents, it was granted and the Notice and Grounds were deemed to have been duly and properly filed.

There was also an application by Mr. Tinubu for extension of time within which to file respondents’ Brief and for the Brief already filed to be deemed to have been properly and duly filed. This motion was not opposed by Mr. Awodein for the appellants and same was accordingly allowed and the respondents’ brief filed out of time was then deemed to have been duly and properly filed.

The appeal was then argued on the two briefs filed with leave of Court. At the close of arguments, I made the following notes:-

“Having read the Briefs and after listening to learned counsel on both sides, it is my view that this appeal lacks merit. There must be a difference and distinction between the validity of a Writ of Summons and the validity of the Service of the selfsame Writ. Writ is valid, any defect in Service becomes a mere irregularity which may make such a Writ voidable but definitely not void. A Writ can only be voided by an intrinsic and substantial defect in the Writ itself. If a Writ is merely voidable, (but not void for being incurably bad), the entry of an appearance by the defendants may constitute a waiver thus validating an otherwise invalid Service. In this case, there was no challenge in the trial High Court that the Writ was not validly issued or validly served.

The defendants were served. They did not enter a conditional appearance or an appearance on protest. They did not move to set aside the Writ. Rather the defendants now appellants entered each an unconditional appearance. Had the defendants attacked the validity of the Writ or/and its Service in the High Court, then those two issues can now be taken up on appeal. But they did not.”

I will now proceed to give my reasons for dismissing this appeal on the 27th day of February, 1989.The main issue in this case is whether or not the Writ that originated the present action leading up to this appeal was void for non-compliance with Sections 97, 98 and 99 of the Sheriffs and Civil Process Act Cap 189 of 1958. Mr. Awodein, learned counsel for the appellants contended that the Writ was a nullity, incurably bad and relying on the maxim: ex nihilo nihil fit, he submitted that all the subsequent proceedings, judgments and order in pursuance to the void Writ were also affected and infected with the stain of a fundamental vice and were also void. Mr. Tinubu on the other hand contended that the Writ was valid and could therefore support, sustain and vivify the various judgments and orders.

From the arguments put forward, both in the briefs and oral submissions of the parties, it is evident that the parties interpreted our various decisions where Sections 97, 98 and 99 of the Sheriffs and Civil Process Act were mentioned; especially Skenconsult (Nig.) Ltd. and anor. v. Ukey (1981) 1 S.C. 6 and Ezomo v. Oyakhire (1985) 2 S.C. 260; (1985) 1 N.W.L.R. (Pt.2) 195 differently and arrived at different conclusions as to what exactly this Court decided in those cases. It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court unnecessary isolation from the facts and surrounding circumstances those particular cases in which those pronouncements were made.

I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper con, for, without known facts, it is impossible to know the law on those facts.

The facts and circumstance of the recent case of Ben Obi Nwabueze & anor. v. Justice Obi Okoye (1988) 4 N.W.L.R. (Pt.91) 664 and the decision and pronouncements of this Court in that case, all too clearly illustrate the point here being made – that Court’s decisions and pronouncements derive their strength, their persuasive potency, their inspiration and therefore their value as precedent from the facts of the case as pleaded and as presented. In Nwabueze’s case (as in this case) the Writ was issued in one jurisdiction for service in another jurisdiction. In Nwabueze’s case supra, when the Writ was served on the defendants, they promptly applied to the High Court that issued the Writ for:-

(i) An order setting aside the Writ of Summons.

(ii) An order setting aside the order of substituted service (the defendants were served by substituted means).

(iii) An order setting aside the purported issue and service of the Writ of Summons on each of the defendants.

It thus became clear and apparent, from the word go, that the defendants questioned both the validity of the Writ as well as the validity of the Service of the selfsame Writ. These then became Issues, in the case, calling for a decision. These Issues, framed as they were from and by the facts and the steps promptly taken by the defendants, formed the basis of this Court’s pronouncements and decision in Nwabueze’s case supra. To rely on any pronouncements or on the decision in Nwabueze’s case supra in a subsequent case, it is incumbent on counsel so relying to show that the facts of his case are similar to those of Nwabueze’s case and (this is very important) that he took promptly the necessary steps to question the validity of the Writ or the validity of its service or both as was done in Nwabueze v. Okoye (supra). If he does not succeed in doing this, he will be citing those pronouncements out of their proper con and he will thus be asking the Court to misapply them. In this case the appellants did not do what was done in Nwabueze’s case supra.