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.

This Court, though the Court of last resort, is still an appellate Court. Section 212 of the 1979 Constitution no doubt conferred original jurisdiction on the Supreme Court. But the present case now on appeal, was not brought under Section 212 of the 1979 Constitution. It was brought under the appellate jurisdiction of the Court as conferred by Section 213 of the 1979 Constitution.

The appellants came to this Court all appeal.

Generally, an appeal is regarded as a continuation of the original suit rather than the inception of a new action. Because of this, in an appeal, parties are normally confined to their case as pleaded in the Court of first instance. They are not allowed to make a new and different case on appeal. They are not allowed to raise in such appeal new Issues without the express leave of Court or to proffer new evidence without such leave. An appeal, being a judicial examination by a higher Court of the decision of an inferior Court, it follows that such examination should normally and more appropriately be confined to the facts and issues that came before the inferior Court for decision.

Now what were the facts and Issues that came before Kotun, J., for decision in this case They are as follows:-

1. A Writ of Summons dated 26th day of June, 1986 was filed in the Registry of the Ikeja Judicial Division of the Lagos State High Court and therein numbered Suit No.10/599/86.
2. Two copies of the said Writ were supplied for Service on the two defendants.
3. The Writ was specially indorsed and the Particulars of the Plaintiffs’ Claim clearly set out as required by Order 3 Rule 4 of the High Court of Lagos (Civil Procedure) Rules, 1972.
4. The Writ was served on the defendants.
5. A memorandum of appearance was entered on behalf of the defendants by their Solicitors Messrs Bamidele Aiku & Co. of No.22 Dugbe Market Road, Abusi Green House, Ibadan.
6. The above memorandum of appearance was entered on the 22nd day of September, 1986, that is to say, 2 months and 27 days after the issue of the Writ.
7. The appearance entered by Messrs. Bamidele Aiku was neither conditional nor under protest. It was an unconditional appearance.
8. After the entry of the above appearance, there was no motion brought before Kotun, J., to challenge either the validity of the Writ or the validity of the Service or both.
9. The defendants did not file an affidavit of merit as required by Order 10 Rule 3(b) Lagos State High Court Rules. The defendants did not file any Statement of defence either.
10. Seven months and 10 days after the issue of the Writ on 6th February, 1987 – (this period is also 5 months and 15 days after entry of appearance by the defendants) the Plaintiffs brought a motion under Order 10 Rules 1, 2 and 7 of the High Court of Lagos Rules.
11. The plaintiffs’ motion was heard on 9th March 1987 (that is 6 months and 18 days after the entry of appearance by the defendants) and Kotun, J., of the Ikeja High Court entered judgment for the Plaintiffs for a total sum of N60,280.00. The judgment had been enrolled ever before the defendants took any steps in the proceedings.
12. On the 13th of March, 1987, another firm of Solicitors – Kola Awodein & Co. brought a motion praying the Court for the following orders;.

(i) An order that the judgment obtained against the defendant/applicant on 9th day of March, 1987, upon default of appearance be set aside.

(ii) An order setting aside the Service on the defendant of the Writ of Summons.

(iii) An order striking out the Writ of Summons and Statement of Claim in this action with substantial costs.

(iv) An order for stay of execution of the judgment.

14. It does not appear from the record that this motion was ever heard. The Statement of facts in the briefs of the parties were also silent on this point. I therefore take it that the motion was not heard.
15. On 15/4/87 S.O. Agbaje-Williams, C.J., Oyo State ordered the release of “two vehicles – a new Volkswagen Santana car and a new ambulance belonging to the applicant and attached by the Sheriff and kept on the premises of the High Court of Justice Ibadan” upon the applicant giving an undertaking in writing to the Chief Registrar of this Court not to sell or otherwise dispose of them until the determination of the substantive application dated 7th April, 1987 and set down for hearing on the 18th day of May, 1987,or until further order of the Court”
16. After making the above order, Agbaje-Williams transferred the case to Court No. 2
17. The next thing one finds in the bundle of papers on which this appeal was argued is the judgment of the Court of Appeal at pp. 84-109 of the record.
18. The Court of Appeal on 9th December, 1987, dismissed the defendant’s appeal.
19. The Court of Appeal considered as an issue in the appeal:-

“whether there is a conflict between that decision (in Skenconsult Nigeria Ltd. & anor. v. Ukey (1981) 1 S.C. 6) and the decision of the Supreme Court in Ezomo v. Oyakhire (1985) 1 N.W.L.R. (Pan 2) page 195.”

and held by a majority of 2 to 1 that the two decisions are conflicting.

20. The defendant has now appealed to this Court.

These are the naked facts of this case. And these are the facts which ought to frame the issue for determination. These issues are not going to be framed from pronouncements made in earlier decisions of the Supreme Court but from the facts and circumstances on which the Court of trial relied. It will definitely be a different matter if this Court is now being asked to overrule its previous decisions in Skenconsult or/and Ezomo supra. If that were the case, this Court as presently constituted, will not be competent to embark on such a considerable undertaking. We are however not being asked to overrule either Skenconsult or Ezomo supra. We are rather asked, (I suppose), to reconcile them or else to declare them irreconcilable.

Having traced the history of this case and its journey from the trial Court, it is now pertinent to look at the Issues for determination. I will now set out below those Issues as formulated in the appellant’s brief:-

4.2 What is the proper effect of a breach of Sections 97 and 99 of the Sheriffs and Civil Process Act, Cap. 189, Laws of the Federation 1958

4.3 Is there a conflict between the Supreme Court cases of Skenconsult v. Ukey (1981) 1 S.C.6 and Ezomo v. Oyakhire (1985) 1 N.W.L.R. (Part 2) p. 195 as regards the breach of Section 99 of the Sheriffs and Civil Process Act. From this main issue, must necessarily arise two corollary issues namely;

4.4 Whether the concept of waiver is applicable in the instant case

If the answer to issue 4.4 is in the affirmative, whether the appellant had waived his right in this case by entering an appearance.

4.6 Whether Ezomo v. Oyakhire was rightly decided.

The above Issues for Determination as formulated in the Appellant’s Brief made no mention, and look no account of, the peculiar facts and circumstances of this case. As the Issues stand, wholly unrelated to the facts of this case, they are either purely academic or else they are seeking the opinion of the Court on the interpretation, in vacuo, of Sections 97 and 99 of the Sheriffs and Civil Process Act Cap 189 of 1958. Either request is not within the proper role and/or function of this Court.

Issues 4.2 and 4.3 above, which incidentally are the radical and principal issues (since the others (4.4 and 4.5) are supposed to be corollary issues) take for granted that there was a breach of Sections 97 and 99 of the Sheriffs and Civil Process Act in this case for if there was no such breach – (and this can only be shown, and can only be known, by reference to and evidence of the facts of this case) then the two radical and principal issues will hardly be live issues. Then again also the subsidiary issues will collapse for sublaro principali tollitur adjunctum (Co Litt. 389) (the principal being taken away, its adjunct is also taken away). Then we will be left only with Issue 4.6 above, which can only be gone into and decided by a Full Court. Then again there will be no proper issue for determination and consequently the appellants would have succeeded to frame itself out of Court. This shows the importance of adverting to the facts of any given case and the findings in that case before deciding on the Grounds of Appeal and thence framing Issues for Determination arising from those grounds in the appeal.

Now, inspite of, and notwithstanding the inelegance of the Issues as framed, I will still look at the facts of this case as setout earlier on in this judgment, to find out whether:-

(i) Having been issued, was the writ attacked on any ground of impropriety or invalidity

(ii) There was service of the writ on the defendant.

(iii) The defendant was given ample opportunity to either challenge the validity of the Writ or its Service or appear and defend or challenge the action after having entered an appearance.

(iv) The judgment of Kotun, J., was in accordance with the law having regard to the facts and circumstances of what was presented to him.

These should have been the relevant and proper issues and not an academic discussion on a possible, or probable, or imaginary, conflict between Skenconsult and Ezomo supra.

There must be a distinction between the issuance of a Writ and the Service of that writ. After all the long title to the Sheriffs and Civil Process Act. Cap 189 of 1958 is:

“An Ordinance to make provision for the appointment and duties of Sheriffs, the enforcement of judgments and orders and the Service and execution of civil process of the Courts of Regions throughout Nigeria.”

Strictly speaking, the Issuing of civil Process and the Service of such process should be two distinct though inter related steps in civil litigation. A writ may be valid while its service may suffer from some defect. It may also happen, as was the case in Nwabueze v. Okoye supra, that both Writ and its Service are invalid. Again and strictly speaking, the issuing of civil process (here Writ of Summons) should be the concern of the High Court Law and the High Court Rules while the Service of such process will be referable to “the Law made for the Service of civil process of the Courts” – the Sheriffs and Civil Process Act Cap 189 of 1958. The reality of the present position is that the High Court of Lagos (Civil Procedure) Rules not only made provision for Service but also incorporated by direct reference, the Sheriffs and Civil Process Act. Order 2 Rule 4 of the Lagos Rules provides:-

“Or. 2 Rule 4 – Subject to the provisions of Part VII of the Sheriffs & Civil Process Act no writ of summons for service out of jurisdiction……… shall be issued without the leave of the Court or Judge in Chambers.”

Now whether or not the leave of the Judge in Chambers was obtained in any particular case is a question of fact which should be alleged in a challenge to the validity of the Writ. Such challenge should be made at the High Court stage so that it will form an issue in the case. Thus the trial Court will consider the issue and our appellate Courts will then review the decision of the High Court thereby fulfilling their role as appellate Courts. Also if a Writ is not properly indorsed as required by Section 97 of the Sheriffs and Civil Process Act, such a writ should be properly tendered and made an exhibit in the case. When the case goes on appeal, the appellate Court will then easily refer to the exhibit and receive submissions on it. Nnaemeka-Agu, J.S.C., expressed similar views in a recent case Niger Progress Ltd. v. North East Line Corporation (1989) 3 NWLR (Pt.107) 68 at p. 100 viz:

“In the instant case whether or not the writ was duly indorsed.. is not only new, but one which should have been resolved one way or the other in the Court of trial. It ought to have occurred to learned counsel that this Court cannot make any pronouncement on the endorsement or Service of the Writ when such an issue was never placed before the lower Court … even a notice to raise a point not raised in the Court below … can never serve as a licence for introducing new and separate issues.”

I am in complete agreement with this view and the previous decisions of this Court implicitly support it.

And this partly accounts for the difference in the approach of this Court between Skenconsult and Ezomo which some have seen as a conflict. In Skenconsult the struggle started rightly in the High Court with a motion filed by the appellants “to set aside the two orders made by the Court on the 15th day of December, 1978, and the Service of the writ of summons and motion on Notice dated 11th December, 1978, on the ground that such service was not in accordance with the provisions of the Sheriffs and Civil Process Act and also because the Court has no jurisdiction to entertain the plaintiffs’ claim” (italics mine). The defendants promptly attacked the Writ and indicated quite clearly and unequivocally that they were basing their attack on some infringements of the Sheriffs and Civil Process Act. Issues were then joined in the High Court on whether or not the writ ought to be invalidated for non compliance with the Sheriffs and Civil Process Act. The High Court exercising its original jurisdiction ruled one way or the other on that issue. The Supreme Court exercising its appellate jurisdiction then reviewed the decisions of the two Courts below on that same issue and made the various pronouncements which some counselor even Judges now tend to quote out of their proper con and unmindful of the facts and peculiar surrounding circumstances of Skenconsult’s case.

In Nwabueze v Okoye supra, the defendants (as I have mentioned earlier on) on receipt of the Writ of Summons, applied to the High Court for:-

(1) an order setting aside the writ of summons;

(2) an order setting aside the order of substituted service; and

(3) an order setting aside the purported issue and service of the Writ of summons on each of the defendants.

The defendants based their objection and attack on the Writ on violation of provisions of Section 97 of the Sheriffs and Civil Process Act 1958. The matter – whether or not the Sheriffs and Civil Process Act had been complied with or had been contravened then came to the Supreme Court, as it ought to, on appeal. That issue then look into account the facts and circumstances of the case as it had been argued and agitated both in the High Court and the Court of Appeal. Any pronouncements made by the Court in Nwabueze or Skenconsult supra had to be read and understood in relation to the peculiar facts and circumstances of that case.

In this case, a Writ of Summons (valid or invalid is immaterial at this stage) was served on the defendants. The defendants could, if they wanted to either:-

(i) enter an appearance on protest

or;

(ii) enter a conditional appearance and;

(iii) then file a motion asking the Court seised of the matter- the Ikeja High Court to set aside the purported Writ and the purported service on them on the ground of essential invalidity of both Writ and Service.

The defendants did not do this. Rather they entered an appearance through their Solicitors Aiku and Co. This implied that they wanted and intended to contest the case of the Plaintiffs. But to even be admitted to contest that case under Order 10 Procedure, they were expected to file an affidavit of merit or at least a Statement of Defence showing a defence on the merits: Nishizawa Ltd. v. Jethwani (1984) 12 S.C. 234 and U.T.C. Nigeria Ltd. v. Chief J. P Pamotei (1989) 2 N.W.L.R. (Pt.103) 244 at pages 270-273 both refer. The defendants did not attack the Writ or its Service in the High Court. The High Court gave its judgment without the validity or otherwise of the Writ or land its Service being raised as an issue. Can that issue be properly raised for the first time on appeal to the Court of Appeal To constitute an appeal to that Court on the issue of the writ, that issue should have been argued and ruled upon by the High Court as was done in Skenconsult and Nwabueze supra. There was not even an application by the appellants to the Court of Appeal or to this Court for leave to argue an Issue not taken up at the trial Court. May be not, as this was not just arguing a point not taken up in the trial Court but rather putting forward a completely new case on appeal, a case different from what the trial Court was called upon to decide.

The appellant in its brief, page 2 para. 5.2, stated as follows:-

It cannot be disputed in this case that the Writ of Summons (page 1 of the Record) did not specify on it the mandatory minimum period of 30 days within which the appellant was required to enter appearance to the same as required by Section 99 of the Sheriffs and Civil Process Act, Cap 189, Laws of the Federation 1958. Indeed it specified just eight days.”

Now Section 99.of the Sheriffs and Civil Process Act stipulates:-

“The period specified in a writ of summons for Service under this Part as the period within which a defendant is required to answer before the Court to the writ of of Summons shall not be less than thirty days after the Service of the Writ has been effected and 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” (Italics mine).

In the writ filed at p.1 of the record, what was asked to be done within eight days after the Service of the Writ is simply “that you do cause an appearance to be entered for you.” He was not required by the Writ to use the words of Section 99 of Cap 189 of 1958 “to answer before the Court to the Writ.” It is thus obvious that the 8 days mentioned in the Writ originating this action was for mere entering of appearance” and not for appearance to contest the claim of the plaintiff before the Court. What then is the difference between “entering an appearance” and “appearance”

I will here refer to “The Dictionary of English Law” by Earl Jowitt 1959 ex. p. 132 subnomen Appearance:-

“In the primary sense of the word, the parties to a proceeding or application …. are said to appear on it when they are present before the Court, Judge, etc., when it is heard. A party appears either in person or by his counsel or solicitor. In a secondary sense of the word, appearing or entering an appearance is a formal step taken by a defendant to an action after he has been served with the writ of summons: its object is to intimate to the plaintiff that the defendant intends to contest his claim; or, in a friendly action, to take part in the proceedings in the action.

Appearance is effected by delivering to the proper officer of the Court, usually within eight days from service of the writ inclusive of the day of Service, a memorandum giving the title of the action, stating that the defendant appears in person or by his solicitor as the case may be, giving the address of himself or his solicitor and also a duplicate memorandum for sealing…and on the same day giving notice of his appearance to the plaintiff.

When a defendant desires to object to the regularity of the proceedings by which the plaintiff seeks to compel his appearance, he may, by leave of a master, enter a conditional appearance or an appearance under protest, and then apply to the Court to set aside the plaintiffs proceeding; or he may, without entering an appearance, move to set aside the service of the Writ. “(Italics is mine to focus attention on the real issues in this case).

The writ in this case clearly mentioned “entering an appearance” which is a technical expression and a formal step taken by a defendant in civil proceedings. In this case, the defendant did not enter a conditional appearance, it did not enter appearance under protest; the company did not move to set aside either the Writ or the Service of an “irregular or an invalid writ.” The defendant/appellant did none of these things. Can it really now, in an appellate Court, question either the Writ or its Service I think not. It has to be proved that the Writ was radically, intrinsically and substantially invalid and was, thus so incurably defective, that it amounted to a nullity.

This proof should normally be offered in the High Court where the defendants should have complained about the invalidity of the Writ or its service. In Skenconsult, there was such a challenge but Maidoh, J., thought he would be converting his Court into an appellate Court from the orders of Ekeruche. J., (as he then was). It was this point that was taken up in Craig v. Kanseen (1943) 1 All E. R. 108 where it was held that an order which is a nullity is something which the person affected by it is entitled to have set aside ex debito justitiae. In such a case therefore, the Court that made the order, in its inherent jurisdiction, can set aside its own order and an appeal is not necessary. Kotun. J., could have been asked to set aside his judgment based on the Writ now complained about. Any decision from his Court could then he taken up on appeal to the Court of Appeal and from thence to this Court as was done in Skenconsult and Nwabueze supra.

The appearance mentioned in Section 99 of the Sheriffs and Civil Process Act supra is no other than the presence of the defendants in Court when the case is being heard in order to contest the claim; “to answer before the Court” the plaintiffs claim. The real issue in Skenconsult was that the case against the defendant was heard in his absence and before the expiry of the minimum of 30 days “after the Service of the Writ has been effected” as required by Section 99 of Cap 189 of 1958. The motions from which and pursuant to which two orders were made by Ekeruche, J. (as he then was) were not served on the appellant. In that situation, the issue really was the nullity of the issuing proceedings. The ratio decidendi in Skenconsult as beautifully stated by Nnamani, J.S.C., at p.27 of the Report is as follows:-

“In the instant case, the appellants were not properly served in law with the writ of Summons. They were neither served with the motions pursuant to which the two orders were made nor were they present or represented by counsel when the said orders were made. My-Lords, I am of the view that on all these grounds the first arm of Chief Williams’ argument must succeed and the orders ought to be set aside.”

Chief Williams’ submission was that the law (S.99 supra) required a period of at least 30 days between the date of Service and the date of hearing or “appearance before a Court to answer the plaintiffs case.” The two orders made by Ekeruche, J., (as he then was) in Skenconsult were set aside be cause of the combined and cumulative effect of:-

(i) improper Service of the Writ;

(ii) non-service of the two motions;

(iii) non-appearance of the appellants;

(iv) non-appearance of any counsel to represent them.

The facts of the present case now on appeal are totally different from those of Skenconsult. In this case, the defendant entered an appearance which was neither conditional nor on protest. The motion for judgment under Order 10 Procedure was served on the defendant/appellant. It neither swore an affidavit of merit not filed a Statement of Defence as was done in Nishizawa Ltd. v. Jethwani (1984) 12 S.c. 234 and recently in U.T.C. Nigeria Ltd v. Chief J.P. Pamolei (1989) 2 N.W.L.R. (Pt.103) 244 at pages 270-273.

The hearing of the Plaintiffs motion for judgment was on 9th March, 1987 a period of more than 5 months after the entry of appearance by the defendant on 22/9/86. This period of 5 months and 15 days is definitely more than the minimum of 30 days required by Section 99 of Cap 185 of 1958. The defendant company went to sleep and continued in its “peaceful slumber” like the sailors in Lord Tennyson’s “The Lotos Easters”, only to wake up on 13th March 1987 to challenge the judgment and ask for a stay of execution. The defendant/appellant conveniently forgot that – vigilanlibus el non dormientibus jura subvenit (Wing 692) – (The vigilant and not the sleepy, are assisted by the laws) Nishizawa Ltd. and U.T.C. Nigeria Ltd. supra were vigilant and the judgments signed against them under the same Order 10 Procedure were set aside. The defendant/company slept. It might as well continue its “peaceful sleep” and “let what is broken so remain”, again with apologies to Lord Tennyson’s “The Lotus Eaters.” But the motion was not even heard. Rather an appeal was heard.

Now to Issue 4.3 at p.2 of the appellant’s brief – Whether there is a conflict between the Supreme Court cases of Skenconsult v. Ukey and Ezomo v. Oyakhire My simple answer is that it is not part of the jurisdiction or duties of this Court to go on looking for imaginary conflicts. We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human-beings, capable of erring. It will certainly be short sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be over-ruled. This Court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error. Learned counsel has not asked us to over-rule either Skenconsult or Ezomo supra. If that was what was wanted, the Briefs should have said so specifically and the Chief Justice of the Federation would have gladly empanelled a Full Court.

This much, however, I can say now, that the expression of every Judge, including Justices of this Court, must be taken with reference to the facts and peculiar circumstances of the case on which he decides otherwise the law will get into extreme confusion. That is why in this judgment, I repeatedly said that the facts frame the issues for decision. I will here repeat what I said in my judgment in Chief Gani Fawehinmi v Nigerian Bar Association & ors. (No.2) (1989) 2 N.W.L.R. (Pt.105) 558 at page 650.

“Our law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the Courts in like or similar cases. The facts of two cases must either be the same or at least similar before the decision in the earlier case can be used in a later case, and even there, merely as a guide-.

What the earlier decision establishes is only a principle, not a rule. Rules operate in an all or nothing dimension. Principles do not. They merely incline decisions one way or the other. They form a principium or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand.”

The manner in which the Judge argues the case in his judgment is not what to look for and cite in future cases. Rather it is the principle he is deciding. I will here, quote and adopt what Sir James Bacon, V.C., said in Green’s Case (1874) L.R. 18 Eq C.A. 428:-

“In the judgments which Judges pronounce, this is inevitable, that having their minds full, not only of the cases before them, but of all the principles involved in the cases which have been referred to, it very often happens that a Judge, in stating as much as is necessary to decide the case before him, does not express all that may be said upon the subject. That leaves the judgment open sometimes to misconstruction, and enables ingenious advocates by taking out certain passages, to draw conclusions which the Judge never meant to be drawn from the words he used.”

Sometimes the Judge expresses more than is required for the decision. When this happens the extra words are superfluous. And Lord Selborne, L.C., in Giles v. Melsom (1873) L.R. H.L. Eng. Ir. App. 24 added:-

“Nothing can be more mischievous than the attempt to wrest words from their proper and legal meaning only because those words are superfluous.”

One has to be very careful and avoid quoting pronouncements of Justices of this Court outside the parameter of the facts of those decisions and the principles decided.

In Ezomo’s case like in this case, the defendant entered an appearance, not a conditional appearance, not on protest. He did not move to set aside the Writ. Rather he contested the case and participated fully therein until judgment. My noble and learned brother, Karibi-Whyte, J.S.C., in his contribution in Ezomo’s case at p. 208 principally said inter alia:-

” …. On the face of the writ of Summons, it is not a writ for Service outside jurisdiction and in my opinion did not require leave of the Court or Judge for Service outside jurisdiction.”

It was after so deciding above that my noble and learned brother then added:-

“Service of a writ of Summons outside jurisdiction without the leave of the Judge or Court does not render the writ a nullity. All that is affected is the Service which is irregular and can be set aside,”

Now having earlier on decided that the Writ in the Ezomo’s case did not require leave of the Judge or the Court. the latter Statement will be what Lord Selborne in Giles v. Melsom supra referred to as superfluous and the use being made of that which is superfluous as “mischievous.”

As far as I am concerned, the facts of Ezomo’s case supra are not on all fours with those of the present case. Ezomo appeared and contested the case in the High Court. The present defendant/appellant after entering an appearance took no further part in the proceedings. Judgment was then entered against him. On the facts of the present case, the present appellant will lose even without any reference to Skenconsult or Ezomo supra. They lost in the trial High Court. That Court never relied on either Skenconsult or Ezomo. It relied on Order 10 Rules 2, 3 and 5. It is only in the Court of Appeal that Skenconsult and Ezomo were dragged in, by the hair of the head so to speak, and the imaginary conflicts highlighted by Ademofa and Uthman, JJ.C.A. Akpata, J.C.A., on his part disagreed and made the following relevant observation:-

“The net result is that the attitude of this Court should be determination by the fact of each case. Going by Order 10, where the defendant appears to a writ of summons specially endorsed with or accompanied by a Statement of Claim, the plaintiff may apply to a Judge in Chambers for liberty to enter judgment. Since the defendant entered appearance, the application for judgment and the judgment were valid regardless of any defect in the Writ of Summons …

I agree with Akpata, J.C.A., that the above – recourse to the facts of the case – is the only course open to the Court in this case. There was no need to look for conflicts between Skenconsult and Ezomo. In any event, Akpata, J.C.A., found none and I agree with him. Skenconsult and Ezomo were both decided on their peculiar facts. This case also ought to be decided on its own peculiar facts leaving all speculations on the imaginary conflict between Skenconsult and Ezomo. When that supposed conflict becomes an issue and when that issue comes squarely before this Court, then a Full Court will be empanelled to consider it, with proper Briefs filed. It is after such an exercise that the Court will know which one to over-rule. That issue has not arisen. There is here no question of choosing between an earlier and later decision of this Court. That exercise is not necessary to decide this appeal.

It was for the above reasons that I, on the 27th day of February, 1989, dismissed this appeal with N500.00 costs to the respondent.

OBASEKI, J.S.C.: On the 27th day of February, 1989, after reading and studying the judgments of the Court of Appeal and the High Court together with the proceedings before them and considering the submissions of counsel to the parties in their written briefs and in oral arguments, I dismissed the appeal for lack of merit and affirmed the decision of the Court of Appeal. I then reserved the Reasons for the judgment till today. I now proceed to give them. Before now I had the advantage of reading in draft, the Reasons for judgment just delivered by my learned brother, Oputa, J.S.C., and I find his opinion on all the issues raised in this appeal totally in accord with mine.

My learned brother, Oputa, J .S.C., has set out the facts of this case in admirable detail and I adopt them.

The part of the decision of the Court of Appeal complained of by appellant in his notice of appeal is:

“That part of the decision wherein the Court of Appeal held that non-compliance with sections 97 and 99 of Cap 189 Laws of the Federation 1958 is not a nullity and that an applicant in a claim for unliquidated damages can get final judgment without verification or ascertainment of damages.”

The ground of appeal filed, however, left out any complaint the getting final judgment without verification or ascertainment of damages in case of unliquidated damages. Only two grounds were filed. These are:

“1. The learned Justices of the Court of Appeal erred in law when they held that the writ filed in this case and/or the processes leading up to judgment were not a nullity for non-compliance with sections 97 and 99 of the Sheriffs and Civil (sic) Procedure Law 1958 Cap. 189 but an irregularity which can be waived and in refusing to set aside all proceedings leading up to judgment

Particulars

(a) The provision of sections 97 and 99 constitute conditions precedent to the validity and legality of a writ of summons as defined under that law and/or to the service of the writ of summons;

(b) No proper proceedings or any at all can be founded upon a writ that is patently defective;

(c) The High Court had no jurisdiction to entertain an action and/or to enter such judgment as was confirmed by the Court of Appeal;

2. The learned Justices of the Court of Appeal erred in law in holding that the concept of waiver is applicable to a breach of sections 97 and 99 of (sic) the Sheriffs and Process Law Cap. 189 Laws of the Federation of Nigeria and that the appellant had waived its rights in the instant case.

Particulars

(a) The concept of waiver is inapplicable to a breach of sections 97 and 99 of the Sheriffs and Civil Process Law;

(b) No party is allowed to waive the effect of a rule of public policy which sections 97 and 99 is about;

(c) It is against public policy to compromise on illegality;

(d) The circumstances of this case do not justify such a finding of waiver.”

The proceedings leading to the appeal to the Court of Appeal and from thence to this matter was initiated by a motion seeking an order:

“1. That the judgment obtained against the defendant/applicant on the 9th day of March, 1987 upon default of appearance be set aside;

2. An order setting aside the service on the defendant of the writ of summons and the statement of claim in this action;
3. An order striking out the writ of summons and statement of claim in this action with substantial costs;
4. An order for stay of execution and the judgment entered in this suit pending the determination of this application.”

The only ground stated in the schedule as the grounds for this application is:

“(a) That the condition precedent to the exercise of jurisdiction by the court to entertain this action and/or to enter judgment was not fulfilled namely that the writ of summons issued and served did not specify on it the mandatory 30 days allowed between the service of the writ and the entry of appearance as provided under section 99 of the applicable Sheriffs and Civil Process Act Cap.189 Laws of the Federation 1958.

The facts deposed to in the supporting affidavit sworn by Richard Kanayo Dike did not go beyond this ground. I refer to paragraph 3 which reads:

”That I am informed by Tunde Olatunji a counsel in the firm of Kola Awodein & Co., and I verily believe him that a writ of summons must give a defendant at least 30 days within which to enter an appearance where it is to be served out of the state from which it is issued and that the writ of summons served on the defendant in this case only provided for eight days within which to enter appearance.”

The issue of the writ not being endorsed for service outside jurisdiction of the State High Court was never raised in the motion before the High Court. Neither was the issue of want of leave of the Judge to issue the writ for service outside jurisdiction raised.

The motion was filed on 13th of March, 1987. What happened to this motion there is no evidence or mention in the record of proceedings before this Court. It appears it was abandoned. The judgment of the High Court sought to be set aside was delivered on the 9th day of March, 1987. The motion for final judgment was filed on the 6th of February, 1987. The application was for

“(i) an order for final judgment against the defendant as per the plaintiffs writ of summons and statement of claim filed and served on the defendant in default of filing a statement of defence;

(ii) an order for the defendant to pay substantial costs and

(iii) for any such order or orders as this Honourable Court may deem fit to make in the circumstances.”

The particulars of plaintiff’s claims were

1st Plaintiff:

(i) Medical Expenses N250.00

(ii) Shock and bruises 5,250.00

(iii) Pain and suffering 20,000.00

(iv) General Damages 4,000.00

Total N30,000.00

2nd Plaintiff

(i) Loss of use of the said Peugeot 504 GL saloon car assessed at the rate of N60.00 per day with effect from 23rd of July, 1985 to 25th June, 1986 (i.e. date of filing this suit) N20,280.00

The damages were suffered as a result of the negligent and reckless driving of defendants’ vehicle No.OY343DY by the defendant’s/respondent’s servant or agent.

(ii) Thereafter loss of use of the said car at the rate of N60.00 per day until the vehicle is repaired and released to the plaintiffs

(iii) General damages N10,000.00

Total N60,000.00

The minutes of the judgment of Kotun, J., is not part of the record but there is enrolment of the judgment exhibited the relevant part of which reads:

“Defendant/respondent shall pay in default of the statement of defence the sum of N20,280.00 being loss of use, stated above of the vehicle LA3868MD assessed at N60 per day from 23rd July, 1985 to 25th day of June, 1986.

Also defendant/respondent is adjudged in default to pay a sum of N10,000.00 as general damages to the plaintiff/applicant.

The judgment was therefore delivered in default of statement of defence not in default of appearance.

The appellant, as indicated earlier, did not proceed with his motion to set aside the judgment. Instead, the company filed a notice with two grounds of appeal.

“1. The learned trial Judge erred in law in entering judgment in favour of the plaintiff in this case when he had no jurisdiction to entertain the entire proceedings:

Particulars

(a) That the condition precedent to the exercise of jurisdiction by the court to entertain the action and/or to enter judgment was not fulfilled, namely, the writ of summons issued and served did not specify on it the mandatory 30 days allowed between the service of the writ and the entry of appearance as required under section 99 of the applicable Sheriffs and Civil process Act Cap. 189 Laws of the Federation 1958.

(b) (Only an argument not particulars)

2. The learned trial Judge erred in law in entering judgment in favour of the respondent upon a void and incompetent writ.

Particulars

(a) That the writ upon which judgment was entered being one for service out of the jurisdiction of the court was not endorsed as provided for by law and did not comply with section 97 of the applicable Sheriffs and Civil Process Act Cap.189 Laws of the Federation 1958.

(b) A court is without power to entertain or enter judgment upon a void and incompetent writ.

It is observed that no where in the proceedings before the High Court was the question of the writ issued and served being served in violation of the provisions of sections 97 and 99 of the Sheriffs and Civil Process Act Cap. 189 Laws of the Federation 1958.Neither was any such question dealt with in the judgment of the High Court.

On the 16th day of June, 1987, the appellant filed an originating motion for an order of the Court of Appeal –

(i) to set aside the judgment delivered against the appellant on 9th March, 1987;

(ii) to set aside the service on the defendant of the writ of summons and the statement of claim in this action;

(iii) to strike out the writ of summons and the statement of claim;

(iv) to stay the execution of the judgment.

Alternatively, an order

(v) to stay the execution of the judgment pending the hearing and determination of the appeal lodged against it.

There is no evidence on record that this motion was heard. In any event, prayers (i), (ii). (iii), and (iv) could not have been entertained. Only the alternate prayer – for stay of execution could have been entertained.

However, the Court of Appeal heard the appeal and allowed it in part by setting aside the damages awarded and ordering that the issue of damages should be gone into as a separate issue by another Judge of the High Court. Subject to this, the Court of Appeal dismissed the appeal. Against this decision the defendant/appellant has appealed. The plaintiffs/respondents did not cross appeal.

The grounds of appeal has earlier been set out in this judgment. I find that the grounds of appeal do not arise from the decision of the High Court which went on appeal to the Court of Appeal. Leave was not obtained to raise the issues in those grounds as the issues were never raised before the High Court. Evidence was not led on them. It is therefore strange that the Court of Appeal allowed the appellant to raise the issues. Although it ruled against the appellant on the ground of waiver, it should have stopped the appellant from raising them. The court also allowed itself to be drawn into consideration of whether there is or is not a conflict between the case of Skenconsult v. Secondy Ukey (1981) 1 S.C. 6 and Oyakhire v Ezomo (1985) 1 N.W.L.R. (Pt.2) 195.

It is not the business of the court to embark on a consideration of a conflict between one decision of the Supreme Court and another decision of the Supreme Court when issues warranting the consideration of the conflict are not raised in the grounds of appeal and when the facts of the two cases alleged to be in conflict are totally different from one another. Caution is a virtue that should not be dispensed with at any stage of the proceedings before any court. Dicta should not be taken and read out of con.

The principles on the question of raising new points not previously raised in the trial court or Court of Appeal, i.e. courts below, are well settled. They include the requirement of leave of court to raise them and the satisfaction of the court that no further or additional evidence is required on the issues to be considered. There is of course a total bar against new points designed to establish a case different from the one considered in the courts below.

I refer to the following cases in which these guiding principles have been settled

(1) Akpene v. Barclays Bank of Nigeria Ltd. (1977) 1 S.C. 47,

(2) Samuel Fadiora v. Festus Gbadebo (1978) 3 S.C. 219, 247, 249;

(3) Agnes Debora Efiofodomi v. H.C. Okonkwo (1982) 11 S.C. 74′,

(4) P.D. Abaye v. Ofiti & Anor. (1986) 1 SC.231, 234, 235; (1986) 1 N. W.L.R. (Pt. 15) 134,

(5) Attorney General of Oyo State v. Fairlakes Hotel Ltd. (1988) 5 N.W.L.R. (Pt.92) 1.

In Ejiofodomi v. Okonkwo (supra) the Supreme Court refused to allow new points which would establish a totally different case from the one considered in the courts below to be taken.

In the instant appeal, when the appellant entered appearance in the court below on being served with the writ, he failed to raise any issue concerning the validity of the writ or the service of the writ of summons under sections 97 and 99 of the Sheriffs and Civil Process Act Cap. 189 Laws of the Federation, 1958. The appellant also failed to raise the issue when the company was served with motion for judgment. The two issues therefore cannot arise in the appeal to the Court of Appeal and in the appeal to this Court because there is no decision on them against which a complaint can be made.

The provisions of sections 97 and 99 of the Sheriffs and Civil Process Act Cap. 189 Laws of the Federation of Nigeria 1958 read as follows:

“97. Every writ of summons for service under this Part out of the state or part of the Federation in which it was issued shall, in addition to any other endorsement or notice required by the law of such state or part of the Federation, have endorsed thereon a notice to the following effect (that is to say)

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

99. The period specified in the writ of summons for service under this Part as specified within which a defendant is required to answer before the court to the writ of summons shall not be less than thirty days after service of the writ has been effected and if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that period.”

To effectively raise the issue of non-compliance with any of the above provisions requires the support of evidence. See Akpene v. Barclays Bank Ltd. (supra); Fadiora v. Gbadebo (supra). There must be evidence that the writ served on the appellant was not endorsed for service in Oyo State as required by section 97 of the Sheriffs and Civil Process Act Cap. 189 Laws of the Federation of Nigeria 1958. There must be evidence that the appellant was required to appear in court within a period of not less than 30 days after service. The words of the statute in this regard are clear and unambiguous and must be given their ordinary literal meaning.

Signing a memorandum of appearance is different from being required to answer before the court to the writ of summons. It is not appearance before the court to answer the claim on the writ. It is in answer to the order in the writ that “you do cause an appearance to be entered for you in the action….” The method of entering an appearance is by filling a form headed “Memorandum of Appearance.” Section 99 has therefore not been breached.

There is no evidence before the Court that the writ served on the appellant was not endorsed for service at Ibadan in Oyo State, to establish a breach of section 97.

It was for the reasons set out above and the detailed reasons for judgment delivered a short while ago by my learned brother, Oputa, J.S.C., that I dismissed the appeal.

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Other Citation: (1990) LCN/2418(SC)