Mr. Ogoegbunem Uwajeh & Ors V. Dr. M.K.C. Uwajeh (2007)

LawGlobal-Hub Lead Judgment Report

SAKA ADEYEMI IBIYEYE, J.C.A.

This appeal is against the ruling of Narebo, J. of the Delta State High Court of Justice sitting at Issele-Uku in which he refused to sustain the preliminary objection raised by the 1st, 2nd and 4th plaintiffs filed on 27/3/2001 after the, Writ of Summons had been filed and two memorandums of appearance he have also been filed on the 8/3/2001 and 13/3/2001 by the 1st, 2nd and 4th defendants and 3rd defendant respectively.

It is pertinent to reproduce the notice of preliminary objection and the order sought as well as the particulars, which read:

“1. That the plaintiffs/respondents’ Writ of Summons dated 25th day of January 2001 and filed on 30/1/2001 be dismissed or set aside.

2. And for such further Order(s) as this Honourable Court may deem fit to make in the circumstances.

PARTICULARS

(a) The Writ of Summons is fundamentally defective.

(b) The Order and the Writ of Summons do not comply with the provisions of our Rules of Court.”

The notice of preliminary objection was supported by a four paragraph affidavit. The plaintiff did not file any Counter Affidavit.

At the hearing of the notice of the preliminary objection on 27/3/2001, Frank A. Chukuka Esq., the learned counsel for the 1st, 2nd and 4th defendants/applicants sought leave of the Court to withdraw an earlier preliminary objection filed on 8/3/2001. G.S. Pwul Esq., the learned counsel for the 3rd defendant/respondent and N.M. Nnamdi Esq., the learned counsel for the plaintiff/respondent, did not raise any objection and it was struck out.

The learned counsel for the 1st, 2nd and 4th defendants/applicants thereafter sought and got leave of the Court below to argue the preliminary objection filed on 27/3/2001. The learned counsel for the plaintiff/respondent spiritedly opposed the preliminary objection. The learned counsel for the 3rd defendant/respondent associated himself with the submissions of the learned counsel for the 1st, 2nd and 4th defendants/applicants and particularly submitted that the provisions of Section 97 of the Sheriff and Civil Process Act is mandatory in its application coupled with the fact that the formal thereat should be complied with. On 8/5/2001 the learned trial Judge delivered his considered ruling that the preliminary objection raised by the 1st, 2nd and 4th defendants/applicants was devoid of merit and dismissed it with costs of N500.00 in favour of the plaintiff/respondent. He made a consequential order that pleadings be filed and exchanged within 30 days.

The 1st, 2nd and 4th defendants/applicants (hereinafter referred to as the 1st, 2nd and 4th appellants) and the 3rd defendant/respondent (hereinafter referred to as the 3rd appellant) were utterly aggrieved by this ruling delivered in favour of the plaintiff/respondent (hereinafter referred to as the respondent) and filed two separate notices and grounds of appeal on 21/5/2001 and 22/5/2001 respectively.

Briefs of argument were filed and exchanged between the parties.

In the joint brief of argument of the 1st, 2nd and 4th appellants, three issues were adumbrated from the three grounds of appeal for the determination of this appeal. The issues are thus:

“(a) Whether the learned trial Judge was right in not relying on the Writ of Summons which is part of the lower Court’s record.

(b) Whether Suit No. HCI/M/14/2000 was properly commenced as provided under the Rules of Court.

(c) Whether there is nexeus (sic) between Suit No. HCI/3/2001 and Suit No. HCI/M/14/2000.”

In the brief of argument filed by the 3rd appellant, on 22/7/02 but deemed properly filed and served on 15/10/2002, three issues were identified from the seven grounds of appeal. The issues are:

“(i) Whether the learned trial Judge of the lower Court was right in refusing to treat Suits No. HCI/14/2000 and HCI/3/2001 as distinct and separate.

(ii) Whether the learned trial Judge ought to have upheld the objection of the appellant on the ground that the Writ of Summons did not satisfy the mandatory requirement of the Sheriff and Civil Process Act Laws of the Federation of Nigeria, 1990.

(iii) Whether the lower Court was right in holding that failure to exhibit the writ served outside jurisdiction was fatal to the preliminary objection.”

In the brief of argument dated 20/11/02 but deemed properly filed on 12/6/03 only one issue was raised by the respondent for the determination of this appeal. The sole issue reads:

“Whether upon a true construction of the Sheriff and Civil Process Act Cap 407 LFN 1990 and the Bendel State (Civil Procedure) Rules as applicable in Delta State, the Writ of Summons served on the 1st, 2nd and 4th appellants, the learned trial Judge was right in holding that the Writ of Summons that commenced this case was not incompetent,”

The issues raised by the two sets of appellants are virtually the same. In effect, the consideration of one set subsumes the other set.

It is, however, elucidating to state some facts about this case in order to highlight the gravamen therein. Thus, the respondent is a senior staff of the University of Benin, Nigeria and he claims to be the head of the Uwajeh family, Agba quarters Onicha Ugbo, Delta State. The 1st and 2nd appellants are respectively the son and wife of late Professor P.N. Uwajeh who died on 12th day of September 2000 in Jos and was buried on the 27th day of October, 2000. On the 30th day of January, 2001, the respondent filed a writ of summons at the Court below against the 1st, 2nd, 3rd and 4th appellants. The 1st, 2nd and 3rd appellants are resident in Jos, Plateau State outside the jurisdiction of the trial Court (the High. Court of Justice). The 4th appellant is resident at Onicha-Ugbo, Delta State within the jurisdiction of the High Court of Justice of Delta State. The wording of note, shorn addresses of service on the 1st, 2nd and 3rd defendants as well as the 4th defendant, the plaintiff and the name of the plaintiffs solicitor and his address on the observe of the controversial writ of summons reads:

“ENDORSEMENT TO BE MADE ON THE WRIT BEFORE ISSUE THEREOF:

The plaintiff claim (sic) is for a declaration that he being the succeeding head of Uwajeh family of Agba quarters Onicha-Ugbo is entitled under ONICHA-UGBO NATIVE LAW AND CUSTOM to announce and preside over the burial of the deceased head of family – Professor Patrick Uwajeh.

2. A declaration that Professor Patrick Uwajeh (deceased) being the Head of the said Uwajeh family is entitled to be buried by all members of Uwajeh family of Agba Quarters, Onicha-Ugbo.

3. A declaration that the burial of the late Professor Patrick Uwajeh by the defendants without consulting and co-opting the plaintiff and the rest of the members of Uwajeh family contrary to Onicha-Ugbo native law and custom and therefore wrong.

4. The plaintiff further claim (sic) the sum of twelve million naira (jointly and severally from the defendants) as general damages for shock, abuses and humiliation received by the plaintiff as a result of the unlawful act of the defendant.

Dated this 25th day of January the year 2001.”

At the hearing of the appeal the respective learned counsel for the three sets of parties separately adopted and relied on their briefs of argument and urged the Court to either allow the appeal or dismiss it.

On Issue 1, the learned counsel for the 1st, 2nd and 4th appellants reiterated, the substance of the complaint of the three appellants that the Writ of Summons filed by the respondent is not properly endorsed as provided by Section 97 of the Sheriff and Civil Process Act Cap 407 Laws of the Federation 1990. He referred to the opinion of the learned Judge in the Court below who observed:

“I notice that copy of Writ of Summons in the case file is not endorsed as prescribed by S.97 of the Sheriff and Civil Process Act 1990.”

That he ought to have struck out the suit as being incompetent instead of holding that the 1st, 2nd and 4th appellants’ counsel failed to exhibit the particular Writ of Summons served on the 1st, 2nd and 4th appellants who were resident in Jos which is out of jurisdiction. He submitted that this line of reasoning, although with due regard, by the learned trial Judge is not sustainable because first, Section 97 of the Sheriff and Civil Process Act Cap. 407, Laws of the Federation 1990 provides that Part out of the State or the Capital Territory in which “Every Writ of Summons for service under this part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory have endorsed thereon a notice to the following effect (that is to say)-

‘This summons (or as the case may be) is to be served out of the State (or as the case may be)’ and in the State (or as the case may be).”

Learned counsel went on to refer to the respondent’s Writ of Summons (supra) and submitted that there is no endorsement on the said Writ of Summons as required by S.97 of the Sheriff and Civil Process Act and relied on the case of EZEOBI V. ABANG (2000) 9 NWLR (PT.672) 230 AT 243, 244 and 245 where this Court held, inter alia, that the said provision applies to every Writ of Summons to be issued and served out of jurisdiction and that non-compliance with that provision renders the Writ in point and its service voidable. He cited in support the case of ODUA INVESTMENT COMPANY LTD. V. TALABI (1997) 7 SCNJ 600 at 654 where the Supreme Court held, inter alia:

“Non compliance with S.97 and/or S.99 of the Court requiring leave of the Court or a Judge for a Writ to be served out of jurisdiction renders the Writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled ex debito justitiae to have same set aside.”

Learned counsel referred to the contention of the learned counsel for the respondent in the Court below that the writ must show where the writ is to be served outside jurisdiction that is to say addresses for service and that that is endorsement contemplated in S.97 of the Sheriff and Civil Process Act. He submitted that that is a wrong proposition of the law as S. 97 (supra) provides a format. He further submitted that “addresses for service” cannot be substituted for “endorsement” as required by S. 97 (supra).

As regards the enrolment of order as at page 2 of the record and the Writ of Summons as at page 1 of the record, learned counsel pointed out that the order to issue and serve the Writ of Summons as at page 1 of the record, learned counsel pointed out that the order to issue and serve the Writ Summons in point on the 1st, 2nd and 3rd appellants was made on 24/1/2001 while the Writ of Summons itself was filed on 30/1/2001. He submitted that as at the time the order was made there was no Writ of Summons to be issued and served as provided under Order 12 of the High Court (Civil Procedure) Rules 1988 as applicable in Delta State.

With regard to the observation of the trial Court that it was constrained to note that no copy of the purported defective Writ of Summons served on the 1st, 2nd and 3rd appellants was annexed as an exhibit to affidavit in support of the preliminary objection for its scrutiny, the learned counsel for the 1st, 2nd and 4th appellants submitted that the trial Court was duty bound to look at the record of proceedings and that exhibiting the Writ of Summons would amount to unnecessary duplication. He further submitted that non-exhibition of the Writ of Summons which is already in the Court’s file is not fatal to the case of the, 1st, 2nd and 4th appellants’ case. He referred, in aid, to the cases of NWANKWO v. NWANKWO (1993) 6 SCNJ (PT.1) 84 at 88; ONWUKA V. OWOLEWA (2001) 7 NWLR (PT. 713) 695 at 714 where it was held in the latter case that it is trite that a Court is entitled to look at its own record and proceedings on any matter and take judicial notice of the contents although they may not be formally brought before the Court by the parties. He submitted that the learned trial Judge having held as follows:

“I notice that the copy of the Writ of Summons in the case file is not endorsed as prescribed by

S.97 of the Sheriff and Civil Process 1990”, he should have resolved the issue of incompetence of the Writ of Summons in point in favour of the 1st, 2nd and 4th appellants. He also relied on S. 74(m) of the Evidence Act Cap 112 of the Laws of the Federation of Nigeria 1990.

The learned counsel for the 3rd defendant/appellant substantially made similar submissions on the third issue identified by the 1st, 2nd and 4th appellants which is Issue 3 in the brief of argument of the 3rd appellant. He, however,’ said the non-exhibition of the alleged vexed issue served outside jurisdiction is per se not fatal to the preliminary objection. He argued that the lower Court appeared, to have found an answer to that omission when it stated at page 19 of the record thus –

“In the circumstance, the Court can only rely on its record i.e. the Writ of Summons as endorsed in the case file”

(Emphasis supplied by me)

The learned counsel for the 3rd appellant found further solace at page 21 lines 23-25 of the record of the lower Court where the learned trial Judge observed as follows:

“I notice that copy of the Writ of Summons in the case file is not endorsed as prescribed by S. 97 of the Sheriff and Civil Processes Act (sic).”

The foregoing showed that there is only one Writ of Summons in the record of proceedings. He went on to submit that the two above quoted passages from the record obviate the need to exhibit the copy of the Writ of Summons served in Jos.

He further said that it is trite that the lower Court being a superior Court of record, it is bound by its own record without recourse to speculate on things or issue outside that record. Learned counsel for the 3rd appellant highlighted another aspect of the opinion of the learned Judge of the lower Court where he stated at page 21 of the record thus:

“It is pertinent to observe that the Writ of Summons in question could be a concurrent one.

Thus it is possible or probable that the Writ of Summons for service outside jurisdiction might have been endorsed as required by S.97 while the one for service within jurisdiction (which is the copy in the case file) is not so endorsed.” (Underlining mine for emphasis)

The learned counsel for the 3rd appellant submitted with profound respect that the above quoted passage is speculative as it is not borne out of the record of the lower Court. He argued that if there was another writ with the proper endorsement being the writ served in Jos, a copy of such writ ought to be in the file of the lower Court as proof of service and accordingly form part of the record.

As regards the issue of concurrent writ, he pointed out that a concurrent writ is invariably only one writ. He argued that if the Writ of Summons at page 1 of the record of proceedings is considered a concurrent writ, it has to be the same carrying the necessary endorsement as the one actually served in Jos. He stated that it is not the practice in the application of a concurrent writ to serve one outside jurisdiction and serve a different one within jurisdiction as the trial Court apparently speculated by saying that the Writ of Summons in point was possibly or probably served in Jos being a place outside of jurisdiction of the trial Court. He urged the Court to hold that, had the trial Court not fallen into the error of speculating on the possibility or probability of the existence of a valid writ with the necessary endorsement when such a writ was not before it, it would have invoked the provisions of Ss. 97 and 98 of the Sheriff and Civil Process Act. Both learned counsel urged the Court to resolve the Issue in point in favour of the appellants.

I will reiterate that the only issue raised by the respondent deals with the propriety or impropriety of the Writ of Summons on the 1st, 2nd and 4th appellants and the 3rd appellant.

In reply, the learned counsel for the respondent contended that the Writ of Summons served on the 1st, 2nd and 3rd appellants is a concurrent Writ as they, the 1st, 2nd and 3rd appellants, resided out of jurisdiction while the 4th appellant resided within jurisdiction. He contended that being a concurrent writ, the 1st, 2nd and 4th appellants have a duty to establish the writ served on them did not comply with the Sheriff and Civil Process Act as he who asserts must prove and he relied on S. 135 of the Evidence Act Cap. 112 of L.F.N. 1990 and C.O.P. OGUNTAYO (1993) 6 NWLR (PT.299) 259 at 261 and 268. He also canvassed that the burden is on the 1st, 2nd and 4th appellants to prove that the writ in point was not endorsed as required by S.97 of the Sheriff and Civil Process Act; and that such proof consists of exhibiting the writ not so endorsed to the Court. He cited in support the case of EL TIJANI V. SAIDU (1993) 1 NWLR (PT.268) 246 at 251 and 260. He contended that the non-exhibition of the said defective writ is fatal to the case of the 1st, 2nd and 4th appellants. The learned counsel dealt at great length on matters, which had little bearing with the live issue of endorsement on the writ. He urged the Court to hold that the lower Court was right in not relying on the Writ of Summons in the record of proceedings.

The live wire of this issue is the state of the law as regards serving process of Court out of the jurisdiction of the trial Court. The law, in my strong view, has been lucidly stated in Ss. 97 and 98 of the Sheriff and Civil Process Act Cap 407 Laws of the Federation of Nigeria, 1990 (hereinafter referred to as Cap 407) and a plethora of decided cases. Sections 97 and 98 in Cap 407 read:

“97. Every Writ of Summons for service under this part out of the jurisdiction of the State or the Capital

Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsement thereon a notice to the following effect (that is to say):

this summons as the case may be is to be served out of the ……State (or as the case may be)….. and in the…. State (Or as the case may be).

(Underlining mine for emphasis)

98. A Writ of Summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such State or the Capital Territory and shall in that case be marked as concurrent.”

(underlining mine for emphasis)

It is common ground between the parties that the above reproduced provisions are germane to a functional Writ of Summons which is to be served on a party, invariably a defendant, who resides out of the jurisdiction of the trial. It is apparent from the wording of particularly S.97 (supra) that compliance with it is a sine qua non. In other words, the said wording does admit of any discretionary interpretation. The endorsement clearly sets out in S. 97 (above) is a mandatory requirement which should be stated unedited on the face of the Writ of Summons to be served out of jurisdiction. It is trite that a Writ of Summons that fails to meet the above requirements is incurably defective. It cannot be the foundation of any proceedings no matter how well conducted. It would tantamount to an exercise in futility for the lower Court to proceed to trial on such a defective Writ of Summons. See NWABUEZE & ANOR. V. OKOYE (1988) 3 N.S.C.C. 53 at 69. It is equally that the consequence on non-compliance with S.97 (supra) is explicitly stated by the Supreme Court in ODUA INVESTMENT COMPANY LTD. V. TALABI (1997) 7 SCNJ 600; (1997) 52 LRCH 2107, inter alia as follows:

“Non compliance with S.97 and/or S.99 of the Sheriffs and Civil Process Act and the rule of Court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled to, ex debito justitiae, have same set aside.”

The learned counsel for the respondent assumed without conceding that if the Writ of Summons served on the 1st, 2nd and 4th appellants did not comply with S.97 of Cap 407 (supra), would that be enough to vitiate the writ to the extent of rendering it null and void? The answer is that the law is clear on such a situation that in view of the mandatariness of the application of the said section any noncompliance is fatal to the case of the plaintiff. See NWABUEZE & ANOR. V. OKOYE (supra) at p. 69.

The learned counsel for the respondent submitted that the issuance of a civil process and the service of such process are two distinct issues whereby the former is governed by the State Law while the latter is governed by a Federal law. I disagree with this submission in view of the doctrine of covering the field which states that when a Federal Statute discloses an intention, albeit completely, exhaustively what will be the law governing the particular conduct or matter to which its intention is directed, it is inconsistent for the law of a State to govern the same conduct or matter. It is also trite to say that where identical legislation on the same subject matter are validly passed by virtue of their constitutional powers to make laws by the National Assembly and a State House of Assembly, it would be more appropriate to invalidate the identical law passed by the State House of Assembly on the ground that the law passed by the National Assembly has covered the whole field of the particular subject matter. See ATTORNEY GENERAL OF OGUN STATE V. ATTORNEY GENERAL OF THE FEDERATION & ORS. (1982) 2 FNLR 4 at pages 14 and 15; (1982) 3 NCLR 166 at 179; ATTORNEY-GENERAL OF OGUN STATE V. ABERUAGBA (1985) 1 NWLR (PT.3) 395 at 405. This Court also held as regards the applicability of S 97 of Cap 407 (supra) in the case of EZEOBI V. ABANG (2000) 9 NWLR (PT. 672) 230 that Cap 407 applies to every Writ of Summons to be issued and served out of jurisdiction. From the state of the record of proceedings, the respondent failed to comply with S.97 of Cap 407 (supra) as the learned judge of the lower Court at page 21 lines 23 to 25 when he said:

“I notice that copy of the Writ of Summons in the case file is not endorsed as prescribed by S.97 of the Sheriff and Civil Processes Act 1999” (sic).

In view of this, there is no need to go into greater consideration on the issue of the concurrent nature of the Writ of Summons in point. Briefly, however, it is no doubt from the of the Writ of Summons in the instant case, it is a concurrent writ and being a concurrent writ the respondent ought to have marked it “concurrent”. He failed to do so.

On whether or not the Writ of Summons served out of jurisdiction was endorsed, the learned Judge of the lower Court held at pages 21 and 22:

“Thus, it is possible or probable that the Writ of Summons for service outside jurisdiction might have been endorsed as required by S. 97, while the one for service within jurisdiction (which is the copy in the case file) is not so endorsed.

In the light of the above it is my firm views that the failure of the defendants/applicants to annex the copy of the Writ of Summons to the affidavit in support of the notice of preliminary objection is fatal to their case. In other words, 1st, 2nd and 3rd defendants/applicants have failed to satisfy the Court that the Writ of Summons served on them outside jurisdiction was not as a matter of fact endorsed as required by S.97 of the Sheriffs and Civil Processes Act, Cap 407, Laws of the Federation 1999” (sic).

(Underlining mine for emphasis).

I entirely agree with the submission of the learned counsel for the appellants that the above quoted passage is speculative as it is not borne out by the record.

This is especially so if there was another writ with the proper endorsement which was served in Jos, a copy of such writ ought to be in the file of the lower Court as proof of service and thereby form part of the record. It has been held that the writ in point is a concurrent writ even though it is not so marked. A concurrent writ is only one writ which could be served within the State of issue and outside it. Being only one writ, it has to be the same carrying the necessary endorsement as the one actually served in Jos. It is hardly the practice to prepare or issue separate, writs in the case of concurrent writ by serving one outside jurisdiction and serving a different one within jurisdiction. It is settled law that a Court has no jurisdiction to speculate. Speculation is not an aspect of inference that may be drawn from facts that are laid before the Court. Inference is a reasonable deduction from facts whereas speculation is a mere variant of imagination or guess which even when it appears plausible should never be allowed by a Court of law to fill any lacuna in the evidence before it. A Court of law is instead bound to decide cases based on evidence adduced by both parties during trial. Any decision based on speculation will surely be visited by miscarriage of justice. See IVIENGBOR V. BAZUAZE (1999) 9 NWLR (PT.620) 552 AT 561; AGHOLOR V. ATTORNEY GENERAL, BENDEL STATE (1990) 6 NWLR (PT.155) 141; SEISMOGRAPH LTD. V. OGBENI (1976) 4 SC 85. In the instant case, Issue No. 1 is infested with irregularities including violation of statutory provisions and opinions based on speculations. I accordingly resolve it in favour of the 1st, 2nd and 4th appellants as well as the 3rd appellant.

Issue 2 is on whether Suit No. HCI/M/14/2000 was properly commenced as provided under the Rules of Court.

The learned counsel for the 1st, 2nd and 4th appellants submitted that the learned trial Judge erred in law when he concluded in his ruling thus:

“I hold that the plaintiff’s application for leave to serve the Writ of Summons in this case outside jurisdiction is consistent with the requirements of the applicable 1988 High Court (Civil Procedure)

Rules.”

The learned counsel further submitted that the High Court (Civil Procedure) Rules 1988 provide for interlocutory application. He contended that the respondent’s ex-parte application and the order granted in Suit No. HCI/M/14/2000 appears to be an interlocutory application and an order there from respectively. He relied on the case of NIREKO ENTERPRISES LTD. V. FIRST BANK (NIG.) PLC (2001) (PT.695) 436, where it was held, inter alia, that applications are considered interlocutory which do not decide the rights of the parties. He posed the question: Can an application be made under the provisions of Order 8 of the Bendel State High Court (Civil Procedure) Rules 1988 as applicable in Delta State without a pending suit properly commenced as provided in Order 1 Rule 1 of the same Rules? He answered in the negative and submitted that Suit No. HCI/M/14/2000 was wrongly commenced by the respondent. In view of the said wrong commencement, he urged the Court that the order there from being for the issuance of Writ of Summons and service outside the jurisdiction of the Delta State High Court of Justice is null and void.

In reply, the learned counsel for the respondent argued that Order 1:Rule 1 and Order 8 Rule 1 of the Bendel State High Court (Civil Procedure) Rules applicable in Delta State are not applicable in the instant case because Suit No. HCI/M/14/2000 did not commence Suit No. HCI/3/2001.

I do not agree with the argument of the learned counsel for the respondent as postulated above. I instead agree with the submissions of the learned counsel for the appellants as they are germane to the consideration of the instant issue. Thus, a vivid observation of the process of Court reflected on page 2 of the record of proceedings shows that it contains, inter alia,

“Suit No. HCI/M/14/2000

BETWEEN:

DR. M.K.C. UWAJEH (for himself and on behalf of Uwajeh) Family, Onicha-Ugbo (Excluding the) … APPLICANT 1st and 2nd Respondent (sic)

AND

1. MR. OGOEGBUNEM UWAJEH)

2. MRS. EDITH UWAJEH )… RESPONDENTS

3. UNIVERSITY OF JOS ENROLMENT OF ORDER MOTION EX PARTE )

………………………………… ”

The ex parte order made on 24/1/2001 was premised on a suit numbered in 2000 (supra). The said ex-parte order was adjourned to Tuesday 27/3/200t for mention without an order that hearing notices be issued on the respondents; In view of the foregoing scenario, it is apparent that the beliefs sought from the application made ex parte by the applicant is interlocutory. In further view based on the record of the lower Court, it is apparent that no other process of Court was suited before it. The process which is proximate to it, that is to say the Writ of Summons, Suit No. HCI/3/2001 was dated 25/1/2001 and filed on 30/1/2001. I venture to say that the circumstances of the instant ex parte motion resulting, in an ex parte order have a striking semblance of an originating process. It is therefore apt to consider provisions on originating processes and interlocutory applications.

The provisions that are pertinent thereto are as referred to by the learned counsel for the applicants, that is to say Orders 1 and 8 of the Bendel State High (Civil Procedure) Rules 1988 as applicable to Delta State (hereinafter referred to as the 1988 Rules). Thus, Order 1 Rules 1 and 2 (a) and (e) and Order 8 Rule 1 of the 1988 Rules read, as appertain to this case in that order, as follows:

“Order 1:

1. Subject to the provisions of any Act, civil Proceedings may begin by Writ, Originating Summons, Originating Motion or Petition as Hereinafter provided.

2.(1) Subject to any provision of an Act or of these rules by virtue of which any proceedings are expressly required to be begun otherwise than by writ, the following proceedings shall be begun by writ, that is to say, proceedings:

(a) in which a claim is made by a plaintiff for any relief or remedy for any tort or other civil wrong .

……………………………………

…………………………………………

(e) in which a claim for a declaration is made by an interested person.”

Order 8 is on interlocutory application in which its Parts 1 and II respectively deal with motions generally and ex parte motions. Order 8 rules 1 and 8 of the 1988 Rules read:

“1 Interlocutory application may be made at any stage of an action.

8. A motion ex parte shall be supported by affidavit which, in addition to the requirements of rule 3, shall state sufficient grounds why delay in granting the order sought would entail irreparable damage or serious mischief to the party moving.”

Order 1 rule 1 of the 1988 Rules (supra) has set out the forms and commencement of action. Those forms can aptly be described as originating or initiating processes. It is mandatory that any of the initiating processes in appropriate cases shall be recourse to before it could enjoy the status of due process. Where, however, an action is not instituted by the relevant form, such action is incompetent. It is trite that any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication. See MADUKOLU & ORS. V. NKEMDILIM (1962) ALL N.L.R. 587 AT 592; (1962) SCNLR 341; CHIGUEZE V. IBEDIRO (1999) 3 NWLR (PT.594) 206 AT 212/213; LAWAL & ORS V. YOUNAN (1961) 1 SCNLR 303; (1961) ALL NLR 245 at 254.

From the wording of Order 8 rule 1 of the 1988 Rules, it is that an interlocutory application may be at any stage of action. This postulates that such an application can only be resorted to by an applicant when an action has already been initiated by any of the due processes which include writ, originating summons and petition. It is trite that an interlocutory application such as the one in the instant case does not decide the rights of parties. See NIREKO ENTERPRISES LTD. V. FIRST BANK (NIG) PLC. (supra). In the instant case, I have already held that by the sequence of proceedings as contained in the record of proceedings, the order sought and got by the applicant/respondent featured as the initiating or originating process. The originating process in Suit No. HCI/M/14/2000 being suit for an interlocutory order is incompetent. The approach of the applicant/respondent is outlandish to the law of initiating an action. The approach of the applicant/respondent is outlandish to the law of initiating an action.

In effect the ex parte order sought and obtained through an interlocutory application to initiate proceedings in the instant case is incompetent and the order made there from by the learned Judge of the lower court did not confer any jurisdiction on him to do so. See UWAH PRINTERS NIG. LTD. V. UMOREN (2000) 15 NWLR (PT. 689) 78. The rules of Court on originating processes are clear and should be obeyed by particularly litigants initiating any legal action. See JOHNSON V. OSAYE (2001) 9 NWLR (PT.719) 729.

In view of the foregoing, I am of strong opinion that the approach of the respondent who initiated the instant action through an interlocutory application is utterly irregular. I accordingly resolve Issue 2 that the respondent did not properly commence the action in Suit No. HCI/M/14/2000 in favour of the 1st, 2nd and 3rd appellants.

Issue 3 relates to whether there is nexus between Suit No. HCI/3/2001 and Suit No. HCI/M/14/2000.

The learned counsel for the appellants submitted that there is no nexus between the two suits. The learned counsel for the respondent made a contrary submission that there is nexus. This view found solace in the part of the ruling of the lower Court where the learned Judge held at page 20 lines 22 to 24 thus:

“In the light of the above, I hold that the two separate but related suits numbers are proper and lawful and do not portray two related matters as distinct and separate action.”

The learned counsel for the appellants submitted that the positions of the lower Court on this issue cannot be correct having regard to the chronological order of events in this case. It was exemplified that Suit No. HCI/3/200l shown on page r of the record could not have preceded Suit No. HCI/M/14/2000 in view of the numbers of the Suits. The learned counsel to the appellants referred to the contents of the enrolled order (see page 2 of the record) which shows that attached to the order is the Writ of Summons on page 1 of the record. They argued that the Writ of Summons on page 1 was prepared ‘on 25/1/2001 being a day after the ex-parte order on page 2 was made (that is to say 24/1/2001). The Writ of Summons on page 1 of the record though dated 25/1/2001 was not filed until 30/1/2001. It was therefore submitted that the seeming endorsed Writ of Summons could not have been the one at page 1 as that is practically impossible. Learned counsel for the appellants further submitted that had the learned trial Judge treated the two suits as distinct and unrelated, being a point conceded by the learned counsel! For the respondent, he would have come to the conclusion that the Writ of Summons on page 1 of the record was not properly or validly issued and/or served on the appellants whose address for service was outside the jurisdiction of the lower Court. This submission, according to the learned counsel contended that it has become more obvious when it is noted that the parties in the Writ of Summons on page 1 and those in the enrolled order on page 2 of the record are different. Thus, there are four defendants on page 1 while there are three defendants on page 2.

Without contradicting what the learned trial Judge premised as “the usual administrative practice” to issue a different case reference number as miscellaneous in a separate file when a related interlocutory or ancillary issue arises out of a substantive suit. I shall cursorily remark that this practice should be discouraged as it leads to not only multiplicity of cases and possibly of case files.

It is advisable that the original suit number assigned to a case be retained for all purposes to finality. It makes for regularity of records if any interlocutory application made in the course of proceedings is added miscellaneous (m) to the original suit number to indicate a variance in the record of the same proceedings.

The learned counsel for the appellants urged the Court to hold that the Writ of Summons on page 1 of the record of proceedings has no bearing on the order on page 2 of the record of proceedings as they are separate and distinct.

I agree entirely with the well researched submissions of the learned counsel for the appellants. These submissions do not, in my view, admit of any expatiation. I accordingly resolve Issue 3 in favour of the appellants.

In sum, this appeal is meritorious and it is allowed. The ruling of the lower Court on the instant preliminary objection is set aside. The incompetent Writ of Summons numbered Suit No. HCI/3/2001 is struck out.

Costs of N5,000.00 to each set of 1st, 2nd and 4th appellants and 3rd appellant.

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Other Citations: (2007)LCN/2439(CA)