Joab U. Ezomo V. George B. L. Oyakhire (1985)
LawGlobal-Hub Lead Judgment Report
N. ANIAGOLU, J.S.C.
The proceedings in a case for slander, giving rise to this appeal, originated in the High Court of the Auchi Judicial Division of Bendel State, holden at Auchi, where the respondent; a traditional Chief in Okpokhumi-Emai in Owan Local Government Area, sued the appellant, who was at the material time a Senior State Counsel in the Ministry of Justice, Enugu, Anambra State, claiming N50,000.00 as general damages.
The case was heard by MOJE BARE, J., upon pleadings which were ordered and filed. At the conclusion of trial, judgment was entered for the plaintiff for a sum of N2,000.00 (Two thousand Naira) general damages and N200.00 (Two hundred Naira) costs.
From this judgment, the appellant appealed to the Court of Appeal, holden at Benin City, on diverse grounds of both law and facts and at the conclusion thereof, that Court dismissed the appeal as lacking in merit.
The appellant has now appealed to this Court against the judgment of the Court of Appeal and filed ten grounds of appeal on law, facts and mixed law and facts. He also filed a Notice of Motion seeking leave to adduce further evidence before this Court but on better reflection, withdrew the motion which was dismissed with costs.
Preliminary objection was raised by the respondent, by motion, under Order 7 Rule 14 of the Supreme Court Rules, 1977, against the appeal being heard at all, on the ground, as contended by Chief Eruaga, learned Counsel, that the appeal was not competent by reason of the failure of the appellant to obtain leave either of the Court of Appeal or of this Court before filing his appeal. When, however, it was pointed out to Mr. Eruaga that the appellant was entitled as of right to file an appeal on law alone, he conceded and restricted his objection to the grounds of appeal dealing with facts or with mixed law and facts pursuant to Section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979.
The appellant admitted that he neither sought for, nor obtained the leave of Court. Accordingly, grounds 5, 7, 8, 9 and 10 which were on facts or on mixed law and facts were struck out. The appeal was thus restricted to grounds of Law alone in grounds 1, 2, 3, 4 and 6.
In arguing the appeal the appellant took the grounds in this order, namely, 4; 6;1; 2 and 3 argued together. I shall follow that order in dealing with those grounds.
Grounds 4 complains that the evidence of P.W. 2 Wilson Eguaje was inadmissible because his name was not pleaded. This is how the ground, with its particulars was worded:
“4. The learned Justices of the Federal Court of Appeal erred in law when they held that the learned trial judge was right in dismissing the contention that the evidence of P.W.2 Wilson Eguaje whose name was not pleaded was inadmissible.
PARTICULARS
- The case of Barham v. Hunringfield (1913) KB 193 cited by the learned trial judge is inapplicable to the respondent’s case and does not support it.
- Save in exceptional circumstances a plaintiff in a slander action will not be allowed to prove at the trial publication to any person who is not named or identified in the statement of claim: Bradbury v. Cooper (1884) 12 QB. 94.
- Under Order 13 Rule 5 of the High Court Law of Bendel State, every pleading shall contain a statement of all material facts on which the party pleading relies. The respondent does not plead in his statement of claim that the alleged words were spoken to persons present who were unknown to him at the time of commencing the action. Therefore he cannot call a witness whose name is not specified to prove the alleged slander.”
Appellant, on this ground, argued that the plaintiff was obligated by accepted rules of pleadings and in particular Order 13 Rule 5 of the Bendel State High Court (Civil Procedure) Rules (hereinafter simply referred to as the Bendel High Court Rules) to plead all material facts and these would include the date of the alleged slander; the person or persons to whom the slander was uttered; and those words complained of which were published. The persons mentioned in paragraph 5 of the amended statement of claim to whom the slander was alleged to have been published, he pointed out were:
(i) Corporal Alex Ifijeh
(ii) Corporal S. Igbinosa
(iii) Police Constable David Aremu and
(iv) Police Constable Olajide Aidevbo.
The name of Wilson Eguaje who testified as P.W. 2 was not among those mentioned. His evidence, he contended, was therefore inadmissible. Be it noted that appellant’s contention was not that the evidence of the witness (P.W.2) should not be accorded weight or that it had no probative value, but that it was not, in law, admissible. He pointed to the 7th Edition of Gatley Oil Libel and Slander paragraph 981 dealing with “material facts” and stated that Barham v. Hunrtingfield (1913) 2 KB 193 cited therein was inapplicable to this appeal. This same argument was put to the trial judge who held that
“To my mind this is not enough good reason for me to reject his evidence.”
Placed again before the Court of Appeal, that Court held as per Ete, J.C.A. (concurred to by Agbaje and Okagbue, JJ.C.A.) that
“The learned judge, rightly in my view dismissed the contention and held that the evidence of a witness whose name was not pleaded could be accepted.”
I see no valid point in this ground of appeal. Even the appellant’s 5th (and last) witness John Ighoko Umagbe swore under cross-examination by Chief Ernaga – counsel for the respondent – that
“There was a crowd when plaintiff and the defendant were talking. The crowd was more than 30 people. Among the crowd were persons who are not members of defendant’s family. Most of the people forming the crowd saw and heard what happened.”
This witness had not given the upper limit of the number present. “More than 30 people” could be 40, 50, 60 and even 100.The fact, however, that he took the number “30” could reasonably be supposed to be that the limit was a figure within and around 30. Surely, Wilson Eguaje (P.W. 2) could be one of them.
A plaintiff, it is true, must, in his statement of claim, aver all material facts including, in the case of slander, the place where the slander was uttered, in order to enable the defendant to know exactly the case he has to meet (see British Legal v. Sheffield (1911) 1 It. R. 69; Order 13 Rule 5 of the Bendel High Court Rules). Where the circumstances of the publication are of particular significance in the plaintiff’s case, I will hold that those circumstances must, if they are to be particularly featured and relied upon by the plaintiff, be pleaded specifically. All these are intended to give the defendant an accurate picture of the case he has to defend.
Where, however, a defendant in slandering a plaintiff is talking to an indeterminate crowd, it will be virtually impossible for the plaintiff (and it will be unreasonable to demand of him) to know at the time of his filing of the claim, each and every person in that crowd who heard the slanderous words of the defendant. He may get to know more people who heard the slander later on and the law – a just law, I mean – will not fairly shut out evidence which he subsequently discovered, merely because he had not become aware of it at the time of filing his writ or his statement of claim. Such a plaintiff is allowed by law to state the names of those hearers of the slander within his knowledge, and to continue as held in Barham v. Huntingfield (supra), to allege that
“The plaintiff believes that the said words were also published to some other persons whom he cannot at present specify but he will rely upon the publication thereof to every person to whom he may discover the same to have been published.”
The plaintiff in such a case in administering his interrogatories was held not to be “fishing” as the foundation had been laid in the pleadings with the above quoted, words, following the judgment of the House of Lords in Russell v. Stubbs Ltd. 52 Sol. J. 580, affirming the judgment of the Court of Appeal. (See particularly the judgment of Kennedy L.J. at pages 197 et seq and 203 et seq). The pleading of “other persons yet unknown” could have exactly the same effect.
No objection, in the instant appeal, was raised by the appellant to P.W. 2 giving evidence. But even if objection was raised one cannot see that the learned trial judge could properly have held the evidence of P.W.2 inadmissible in a slander action, by reason only that his name was not mentioned in the statement of claim, if, otherwise, the statement of claim had, by appropriate wordings, covered that eventuality.
But a defendant is not without his safeguards. He could, in an action for slander as already shown, ask the plaintiff for further and better particulars and, in appropriate cases, deliver interrogatories. In the present case, the plaintiff did plead that the defendant published the slander to those named) policemen and to
“some other police officers and other by standers”
an averment which could have the like effect as
‘other persons unknown’.
Where a defendant fails, as in this case, to ask for better and further particulars and like a vendee buying, as it were a pig in a poke, goes to meet his case without those particulars, he must have himself to blame if later evidence springs on him a surprise.
The learned trial judge was, in my view, legally justified in hearing the evidence of P.W.2, Wilson Eguaje. He could not legitimately have held his evidence to be inadmissible as the matter was not one of admissibility but one of credibility. The credit to be given to his evidence was one to be determined against the other facts and circumstances in the case. As it turned out, the learned trial judge accepted his evidence on the issue of whether or not the plaintiff called the defendant a thief. He had ample evidence on which to come to that conclusion and the Court of Appeal was justified in upholding it. Accordingly, that ground of appeal has no substance and fails.
The appellant, who appeared for himself in all the Courts right up to this Court, argued his ground 6 with no less fervour than he did with ground 4. Under this ground he contended that the writ commencing the action and served outside Bendel State was invalid by reason, he argued of the provisions of Order 2 Rule 16 of the Bendel High Court Rules and that the Court of Appeal was wrong in law in upholding the judgment of the Bendel State High Court, Auchi, which was based on the “invalid writ”. The said Order 2 Rule 16 provides that
“No writ of summons for service outside the jurisdiction shall be signed or sealed without the leave of the court or a judge.” Again, the appellant contended that there was no compliance with S.99 of the Sheriffs and Civil Process Act, Cap. 189 Volume VI Laws of the Federation in that the period between the service of the writ of summons on a defendant outside the jurisdiction and the return date of the summons, should not be less than 30 days. He was served with the writ of summons at Enugu on 11th August 1978 and the return date on the writ was 8th September 1978 – a period of 28 days – two days short of the statutory period.
In respect of his argument under Order 2 Rule 16, appellant called in aid the decision of this Court in Skenconsult (Nig.) Ltd. and Anor. v. Godwin Sekondy Ukey (1981) 1 S.C. 6 as per the lead judgment of Nnamani, J.S.C. beginning at p. 9, and (in respect of his contention on service of the writ and the return date) the observation of my learned brother, Obaseki, J.S.C. in National Bank (Nig.) Limited and Anor. v. John Akinkunmi Shoyoye and Anor. (1977) 5 S.C. 181at 192-3 that there was no evidence in that case that leave of the judge was obtained “to seal the writ for service out of jurisdiction” as was required by Order 4 Rule 16 of the then Western State Civil Procedure Rules.
To answer to these points, dealing first with Order 2 Rule 16, it is to be observed that the judgment of the trial judge on it was a complete answer. He held that there was no evidence (as indeed there was not) that the writ was signed or sealed without the leave of the Court or a Judge. The writ was not tendered in evidence. “This Court”, he said, “cannot conjecture evidence, and the presumption of regularity prevails in the absence of contrary evidence,”
Apart from this fact of there being no evidence, there is the additional fact that the appellant did not object but filed his pleadings in which he raised the issue, and proceeded to a full trial on the merits. It was in his address, after the conclusion of trial and after he had fully fought the case on the merits, that he raised the issue of the signing and sealing of the writ under Order 2 Rule 16. Surely, it will then be too late in the day to start raising that issue. In both the National Bank (Nig.) Limited v. Shoyoye and Skenconsult (Nig.) Ltd. v. Ukey (supra) the issue was raised by motions as preliminary objections – in the National Bank (Nig.) Ltd., that the High Court, Abeokuta, had no jurisdiction and in Skenconsult (Nig.) Ltd., that the order of the High Court Benin City for service on the defendant be set aside.
This Court has lately, in R. Ariori and Ors. v. Muraino B. O. Elemo and Ors. (1983) 1 S.C. 13 dealt with the consequences of waiver by a party in a case in respect of procedural requirements, although the Court found that the appellants in that case had, in fact, not waived their rights. The concept of waiver, the Court held, is that a person who is under no legal disability and having full knowledge of his rights or interests, conferred on him by law, and who intentionally decides to give them (or some of them) up, cannot be heard to complain that he has not been permitted the exercise of those rights or that he has been denied the enjoyment of those interests.
As respects the point that S.99 of the Sheriffs and Civil Process Act was not complied with as regards service and return date, the same reply applies on the freedom of a party to waive his procedural right arising out of a rule enacted for his interest. S. 99 reads:
“99.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 summons shall be not less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of the court within which the writ of summons is issue, not less than that longer period.”
By contesting the case to the full, on the merits, without earlier taking preliminary objection before trial, the appellant must be deemed to have waived whatever right he had under that section.
Appellant, in a veiled suggestion, not particularly enthusiastically pursued, argued that the Auchi High Court had no jurisdiction to bear the case since, under Order 6 Rules 2 and 5 of the Bendel High Court Rules, Auchi High Court could not be the proper venue for the slander action. The untenable suggestion was faintly put forward that Enugu where the appellant lives and works as a State Counsel, but where the Bendel High Court Law and Rules do not apply, should be the place for the respondent to have sued.
Order 6 Rule 2 reads:
“2. All suits relating to land, Or any mortgage or charge thereon, or any other interest therein, or for any injuries thereto, and also all actions relating to personal property distained or seized for any cause, shall be commenced and determined in the Judicial Division in which the land is situated, or the distress or seizure took place.;’
while Rule 5 of the same Order provides that
“5. All other suits may be commenced and determined in the Judicial Division in which the defendant resides or carries on business. If there are more defendants than one resident in different Judicial Divisions, the suit may be commenced in anyone of such Judicial Divisions, subject, however, to any order which the Court may, upon the application of any of the parties, or on its motion, think fit to make with a view to the most convenient arrangement for the trial of such suit.”
Neither of the two Courts below (and clearly their attention was not drawn to it) took account of the provisions of Order 6 Rule 3 of the Bendel High Court Rules which states that
“All actions for recovery of penalties and forfeitures and also all actions against public officers shall be commenced and tried in the Judicial Division in which the cause of action arose.”
The appellant giving evidence on oath described himself as a “Senior State Counsel/Ministry of Justice, Enugu, Anambra State, Nigeria.” He was therefore a Public Officer. Being a Public Officer, and “all actions against public officers” having been allowed to be commenced and tried “in the Judicial Division in which the cause of action arose, “this action – a tort – which arose in Okpokhumi-Emai in Owan Local Government Area, and which, by virtue of the Judicial Divisions Directions 1971 at page 1690 of Cap. 65 of the High Court Law of Bendel State, clearly came under Auchi Judicial Division, could be tried by the High Court of Bendel State holden in Auchi.
Ground 6, therefore lacks substance and is rejected.
Ground has been covered by the above, with particular reference to Order 6 Rule 3. That ground also fails.
Finally, in Grounds 2 and 3 argued together, the appellant submitted that the trial court failed “to determine the issue of jurisdiction which was raised by the Appellant” and that the trial court had in fact no jurisdiction or competence to determine the suit. Under his “PARTICULARS” to ground 3, the appellant referred to Order 6 Rule 5 of the Bendel High Court Rules and submitted that “an action in tort can be commenced or determined only in the judicial division in which the defendant resides or carries on business.”
Order 6 Rule 3 set out above does not support the above contention and affords complete answer to the submissions on these two grounds.
In the result, all the grounds of appeal having failed, this appeal must be, and is hereby, dismissed with costs to the respondents fixed at N300.00
A. O. OBASEKI, J.S.C. (Presiding): I have had the advantage of reading in draft, the judgment delivered by my learned brother, Aniagolu, J.S.C. and I agree with him that the appeal should be dismissed.
It is to be observed that the appellant’s admission that he neither sought for nor obtained leave of either the Court of Appeal or the Supreme court to appeal on grounds involving questions of fact alone or questions of mixed law and fact earned him the loss of grounds 5, 7, 8, 9 and 10 of the grounds of appeal filed by him as these were grounds involving questions of fact along or mixed law and fact. The appellant could only exercise his right of appeal on those grounds after obtaining leave of the Court of Appeal or the Supreme Court under section 213(3) of the Constitution of the Federal Republic of Nigeria 1979.
When those grounds were struck out, the appellant was left with grounds 1,2,3,4 and 6 which were grounds involving questions of law alone. Ground 4 which raised the issue of admissibility of the evidence of p.w. 2, Wilson Eguaje could not be substantiated and I agree with my learned brother, Aniagolu, J.S.C. that there is no substance in it in view of the abundant evidence on record that a crowd of people had gathered when the slanderous words were uttered by him. The failure to plead his name was not fatal. See:
Barham v. Huntingfield (1913) 2 KB. 193
Russell v. Stubbs Ltd. 52 Sol J. 580
The appellant’s complaint about the irregularity in the service on him of the writ of summons did not make much impression either. He appeared in court to answer the claim over 30 days after service of the writ of summons was served on him although the return date stated on the writ of summons made it about two days less than the 30 days, required by section 99 of the Sheriff’s and Civil Process Act Cap Laws of the Federation, 1958.
The cases of Skenconsult (Nig.) Ltd. and Anar. v. Gadwin Ukey (1981) 1 S.C 6; and National Bank (Nigeria) Limited and Anor. v. John Akinkunmi Shayaye and Anor. (1977) 5 Sc. 181 at 192-3 cited by learned counsel are not on all fours with the instant appeal. In those two cases, the court was moved to set aside the service of the writ by notice of motion. The lack of evidence that the writ was signed sealed and served without the leave of the court or judge is a complete answer to the appellant’s complaint.
Having waived his right to have the writ set aside in the High Court, he cannot now be heard to complain. See R. Ariari & Ors. v. Muriano B. O. Elemo & Ors. (1983) 1 SC. 13. He contested the case to the full on the merits notwithstanding the irregularity in the service of the writ of summons.
The objection to the jurisdiction of the High Court of Bendel State, Auchi Judicial Division, sitting at Auchi, is to my mind, totally devoid of substance. The slanderous words were uttered by the appellant in his Okpokhumi-Emoi village in Owan Local Government Area – a place within the Auchi Judicial Division. That is his permanent home although his duty post is in Enugu in Anambra State. The slander was not uttered at Enugu. The respondent belongs to the same village as the appellant and the appellant’s address for service within Bendel State was stated to be his home.
Both the 1963 Constitution and the 1979 Constitution gave Bendel State High Court jurisdiction in this matter. As the cause or matter was instituted on 26th July, 1978, an examination of the 1963 Constitution and that High Court Law of Bendel State Cap 65 Vol. 3 Laws of Bendel State 1976 will be relevant and useful as the 1979 Constitution. The Constitution of Bendel State by section 48(1) and (3) provides:
“(1) There shall be a High Court for the State
(2) …………………………………………..
(3) The High Court of the State shall be a superior court of record and, save as otherwise provided by any law in force in the State, shall have all the powers of such a court.”
The powers of the judges are expressly set in the Bendel State High Court Law Cap 65, section 4(1) and (2) of which reads:
(1) All the judges of the court shall have in all respects save as is herein expressly otherwise provided, equal power, authority and jurisdiction under this law.
(2) Any judge of the court may, subject to this law and any rules of court, exercise all and any part of the original jurisdiction; civil and criminal vested by this law in the court and for such purpose shall be and form a court.
Sections 9 and 10 spelt out the jurisdiction and conferred it on the High Court of Bendel State. Section 9 reads:
“…. the High Court shall be a superior Court of record and in addition to one other jurisdiction conferred by this or any other law or Act, shall within the limits and subject to provision of this Law possess and exercise all the jurisdiction, powers and authorities which are vested or capable of being exercised by the High Court of Justice in England.”
Section 10 reads in part:
“…the jurisdiction vested in the High Court shall include all civil jurisdiction of the High Court of Justice in England which at the commencement of this Law, was, or at any time afterwards may be exercisable in Bendel State for the judicial hearing and determination of matters in difference, or for the administration and control of property and persons…, (Italics are mine)
Section 12 reads:
“The jurisdiction by this Law vested in the High Court shall be exercised (so far as regards procedure and practice) in the manner provided by this law, the Criminal Procedure Law or any other Act of Parliament or written law, or by such rules and orders of the court as may be made pursuant to this or any other law or Act.
The matter in difference here is slander committed within the jurisdiction of the Bendel State High Court.
From the above, it is obvious that the High Court has jurisdiction over torts committed within the jurisdiction. Thus, to enable the court to exercise this jurisdiction to hear and-deter-mine actions in tort, it is provided in Order 4 Rule 1(f) of the High Court Rules that:
“Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the court or a judge whenever
(f) the action is founded on tort committed within the jurisdiction.”
This is further reinforced by the provision of Order 6 Rule 3 of the Bendel State High Court Rules which reads:
“All actions for recovery of penalties and forfeitures, and also all actions against public officers shall be commenced and tried in the judicial division in which the cause of action arose.”
The appellant is at present a public officer, in the, service of the Anambra State Government as State Counsel in the Ministry of Justice, Enugu.
For the above reasons and the reasons so ably set out, in the judgment of my learned brother, Aniagolu, J.S.C., I hereby dismiss the appeal with costs to the respondent fixed at N300.00,
A. G. KARIBI-WHYTE, J.S.C.: I have had the privilege of a preview of the judgment of Aniagolu, J.S.C. dismissing this appeal, on all the grounds argued before this Court. I entirely agree with the judgment. I also will dismiss the appeal similarly. My brother Aniagolu, J.S.C. has dealt so exhaustively with the issues of law and findings of fact that need merely’ only add in amplification my own views on the issue of jurisdiction.
Appellant, (a Legal Practitioner) who appeared on his own behalf, seemed to me to have assumed that grounds 1 and 6 of his grounds of appeal constituted a complete answer to the action. There was no attempt, at the Court of trial, at denying the slanderous words uttered. His plea of justification was to fit the words used into the category of vituperative abuse in ground 7 of his grounds of appeal. Even this he was in the circumstances of this case unable to establish. This judgment is confined to the expression of my views on the arguments advanced in respect of ground 1, 2, 3, 6 of the grounds of appeal. For ease of reference, r reproduce grounds 6 and 1:
“(6) The Court of first instance misdirected itself in law in its application of Order 2 rule 16 of the High Court (Civil Procedure) Rules of Bendel State by holding that the writ commencing the action and served outside the State was valid when it was not and the Court of Appeal was wrong in law in upholding the “Judgment” of the Bendel State High Court based on the said invalid writ.
Particulars of Misdirection
(a) Order 2 rule 16 is mandatory
(b) The Court itself was in the best position to know whether or not it granted leave to sign and seal the writ commencing the action since it was a matter peculiarly within its knowledge.
(c). The plaintiff’s counsel conceded that the writ was void since no such leave was obtained and therefore no further proof was required of the defect.
(d) Failure to comply with mandatory provisions as to service of writ renders the writ void ab initio.
“(1) The proceedings in the Court of first instance, that is to say, the High Court of Bendel State, is a nullity in that the writ of summons was not served in compliance with the provisions of the sheriffs and Civil process Act in that the period between the service of the writ of summons on the defendant at Enugu outside Bendel State and the return date on the summons was less than the mandatory thirty-day period stipulated by section 99 of the hid ‘sheriffs ‘and Civil Process Act and the Federal Court of Appeal erred in law’ in failing to set aside the so-called judgment of the Bendel State High Court.”
It is convenient to consider grounds 1 and 6 together since they both concern the jurisdiction of the Court, and the competence of the trial court to exercise jurisdiction in respect of the matter. ‘ , It is important to point out that although appellant had ill paragraphs 1 and 23 of his statement of defence pleaded that the High Court 1) had no jurisdiction to try the act, and that he will at the trial the trial rely on all legal and equitable defences available to him” the only issue as to jurisdiction raised in the trial court was that the writ was defective for want of compliance with Order 2 r 16 of the High Court (Civil Procedure) Rules, Cap. 65 Bendel State Laws.
The question of non-compliance with S. 99 of the Sheriffs’ and Civil Process Act, Cap. 189, Vol. VI Laws of the Federation was not raised. In the Court of Appeal, appellant raised in his ground 3 of the grounds of appeal, the issue of jurisdiction relying for the first time on Order 6 r 5 of Bendel State ‘High Court (Civil Procedure) Rules which was rejected by the learned trial judge. Both grounds were dismissed in the Court of Appeal. All the grounds of appeal relating to jurisdiction canvassed in the court below now constitute grounds 2, 3 and 6 in the appeal before us. Ground 1 of the grounds of appeal was raised for the first time in this Court.
It is well settled that the issue of jurisdiction of a trial Court and of its competence can be raised on appeal. It is however the accepted view that where all the facts are available to the party raising such technical points, it is desirable to raise them at the court below so as to give notice to the opposing party of the case he has to meet – see Shobogun v. Sanni & Ors. (1974) 1 All N.L.R. (Part 2) 311 at p. 316. Incidentally in this case, appellant is not relying on this technical point alone. He is also relying on other points of law which have been raised and decided against him in the Court below. I shall now discuss the points of law on jurisdiction and competence raised in the grounds of appeal in this Court. It is convenient to consider the grounds of appeal on jurisdiction together because the result will invariably be the same.
In arguing ground 6, appellant submitted that the writ commencing the action and served outside Bendel State was invalid by virtue of Order 2 r 16. He contended that the Court of Appeal was wrong in law in upholding the judgment of the Court which was based on an invalid writ.
Order 2 r. 16 relied upon provides as follows –
“No writ for service outside the jurisdiction shall be signed or sealed without the leave of the Court or a Judge.”
Appellant cited and relied on Skenconsult (Nig.) Ltd. v. Sekondy Ukey (1981) 1 S.C. 6 and National Bank (Nig.) Ltd. v. Shoyoye & Anor. (1977) 5 S.C. 181 at 182-3. It is pertinent to observe that the endorsement for service on the writ of summons as copied at page 2 of the printed record indicated For Service on the Defendant, either at Okpokhumi-Emai, Owan Local Government Area, Bendel State or Ministry of Justice, Enugu, Anambra State. Prima facie, the writ of summons is valid, since it has an address for service within the jurisdiction.
In such a circumstance leave of the Judge or Court would seem not to be required in order to sign the writ. The presumption of regularity relied upon by the trial judge in rejecting the contention of the appellant is most appropriate in this case. Appellant has not led’ any evidence to show that he has no address for service within the jurisdiction. Indeed all the evidence at the trial point conclusively that appellant has an address for service within the jurisdiction. On the face of the writ of summons, it is not a writ for service outside the jurisdiction, and in my opinion did not require leave of the Court or Judge for signing or sealing. Even if it is conceded that the writ of summons, required leave of the Court for purposes of service outside the jurisdiction, what is the effect of non-compliance There is no doubt that the main reason for the rule is to authenticate the writ of summons and the process to bring the defendant to court.
Consequently the most effective remedy of the defendant is not to enter appearance and to use the non-compliance as a ground for setting aside the service of the writ of summons. This was the procedure adopted .by the defendants and endorsed by this Court in National Bank (Nig.) Ltd. v. Shoyoye (supra) and Skenconsult v. Sekondy Ukey (supra). In each of these cases the issue was raised by preliminary objection. The service of the writ of summons was in each case set aside. Service of writ of summons outside the jurisdiction without leave of the Judge or Court, does not render the writ itself a nullity. All that is affected is the service which is irregular and can be set aside. In such a situation, the defendant entering appearance on the strength of the irregular service constitutes a waiver of the irregularity. – See Ariori & Ors. v. Elemo & Ors. (1983) 1 SC. 13. In Allen v. Quigley 12 Ir. L.T. 46, (cited at p. 47, in the Supreme Court Practice 1979, Vol. 1, Ord. 6/2/18), it was also stated that appearance is a waiver of the irregularity. Admittedly defendant in paragraph 1of his statement of defence indicated that the Court had no jurisdiction and in his motion for dismissal of the action expressly relied on this provision, his filing a statement of defence is by itself, a waiver of his right to ignore the writ of summons. His appearance is submission to the jurisdiction. As was stated in Ariori & Ors. v. Elemo & Ors. (supra) at pages 48-49 per Eso, J.S.C.
“The concept of waiver must be one that presupposes that the person who is to enjoy the benefit or who has the choice of two benefits is fully aware of his rights to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decided to take one but not both see Vyvyan v. Vyvyan 30 Bear, 65 as per John Romilly MR at p. 74.”
It seems clear from the circumstances of the appellant that he waived his right not to appear in response to the service on him of the writ of summons. I do not think he is entitled to complain any longer about its being defective.
Ground 1 is closely associated with ground 6. As I indicated earlier in this judgment, appellant raised this point of law for the first time in this Court. His complaint was that s. 99 of the Sheriffs and Civil Processes Act was not complied with, with regard to the service of and return date of the writ of summons s. 99 provides as follows:-
“The period specified in a writ of summons for service under his Part as the period within which a defendant is required to answer before the Court to the writ of summons shall be not less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of Court within which the writ of summons is issued, not less than that longer period.”
The reasons I have advanced for dismissing ground 6 of the grounds of appeal applies also to this ground of appeal. Finally, and still on the question of jurisdiction, on grounds 2 and 3, appellant in a desperate effort submitted that the Auchi High Court was not the proper venue for the action. He relied on the provisions of Order 6 rr 2 and 5 of the Bendel State High Court Rules. He argued that since he (the defendant) resided at Enugu, the High Court there should be the proper venue. The short answer to this contention can be found in Order 6 r. 3 which provides-
“All actions for recovery of penalties and forfeitures and also actions against public officers, shall be commenced and tried in the Judicial Division in which the cause of action arose.”
The cause of action, which is slander, arose in Okpokhumi-Emai in Owan Local Government Area, which is within the Auchi Judicial Division – (see Judicial Divisions Direction 1971 at p. 1690 of cap. 65, High Court Law, Bendel State). Appellant described himself as a Senior State Counsel, in the Ministry of Justice, Enugu, which comes within the definition of a Public Officer.
Therefore, the action against him can be tried in the Auchi High Court by virtue of Order 6 r 3. On the other hand on the face of the writ of summons, there is nothing to suggest that appellant does not reside in Okpokhumi-Emai. For the purposes of service of process on him, the address endorsed on the writ of summons is valid, and can be regarded, until the contrary is shown for the purposes of jurisdiction as the place where the appellant resides. This ground of appeal also fails and is dismissed, I am satisfied that the Court of Appeal did not err in holding that the Auchi High Court had jurisdiction to try the action the subject matter of this appeal, diction to try the action the subject matter of this appeal.
In the result, all the grounds of appeal have failed, and this appeal must be, and is accordingly hereby dismissed with costs to the respondent fixed at N300.
S. KAWU, J.S.C.: I had the advantage of reading in draft the judgment just delivered by my learned brother, Aniagolu, J.S.C. I agree absolutely with the reasons and the conclusions therein. I too will dismiss the appeal and affirm the decision of the Court of Appeal. I agree with the order as to costs as contained in the judgment of my learned brother, Aniagolu, J.S.C.
C. A. OPUTA, J.S.C.: I have had the advantage of reading in’ draft the judgment just delivered by my learned brother Aniagolu, J.S.C. The issues involved in the appeal were most adequately considered. I agree with the reasoning and the conclusions arrived at. I will also dismiss the appeal with costs to the respondent fixed at N300.00.
Appeal Dismissed.
SC.6/1984
