Odu’a Investment Company Limited Vs Joseph Taiwo Talabi (1997)
LAWGLOBAL HUB Lead Judgment Report
OGUNDARE, JSC
Does compliance with section 97 and/or section 99 of the Sheriffs and Civil Process Act (now Cap 407 Laws of the Federation of Nigeria 1990 and hereinafter is referred to as the Act) coupled with breach of the rule of Court requiring leave of the court or a Judge for a writ to be served outside jurisdiction render the writ and/or service of it a nullity or mere irregularity? this is the question that calls for determination in this appeal.
Plaintiff had, in the High Court of Lagos State, sued the two defendants claiming –
‘1. An order declaring that the plaintiff is and at all material times was an employee of the 2nd defendant which said 2nd defendant seconded the plaintiff to the 1st defendant as Executive Director-Finance and Secretarial Duties.
2. An order declaring as null and void the 1st defendants letter referenced MD/NED 1/02317 and dated 18th October, 1984 by which the 1st defendant purported to terminate the appointment of the p1aintiff as the Executive Director-Finance and Secretarial Duties of the 1st defendant and that the said termination was malicious and in bad faith.
3. An order compelling the 1st defendant to reinstate the plaintiff in his post of Executive Director – Finance and Secretarial Duties from which he was purported to have been removed with effect from 19th October, 1984.
4. An order compelling the defendant jointly and severally to pay to the plaintiff in full his monthly salary from the 19th day of October, 1984 up to the date of judgment.
In the alternative the plaintiff claims against the defendants jointly and severally the sum of N500,000.00 being general and special damages for wrongful termination of appointment.’
1st defendants address was put in the writ as ‘Ikorodu Road, Ojota, Lagos.’ 2nd defendants address was put as ‘Cocoa House Complex, Ibadan.
By that address, 2nd defendant was to be served, and was indeed served, in Ibadan in Oyo State, a place outside the territorial jurisdiction of the High Court of Lagos State. There was no endorsement on the writ as required by section 97 of the Act which provides:
’97. 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 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).’
The writ required that appearance was to be made within ‘eight days after the service of this writ on you’. Section 99 provides for a longer period. It 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 issued, not less than that longer period.’
There was clearly a breach of each of the 2 sections. Equally so, leave of Court or a judge was not obtained to serve the writ out of jurisdiction as required by Order 2 rule 4 of the High Court of Lagos State Civil Procedure Rules, 1972.
The writ was served on the 2nd defendant at Ibadan on 6th September, 1985 and the 2nd defendant, by its counsel, Mr. S.A. Onadele entered an unconditional appearance to the writ on 13th September,1985. Since entering appearance 2nd defendants counsel received a copy of the statement of claim and sought, and obtained, pursuant to the rules of court, the consent of plaintiffs counsel to file 2nd defendants statement of defence out of time. The said statement of defence of the 2nd defendant was inDecd filed out of time on 28th April 1986. Learned counsel for the 2nd defendant received court processes and appeared in court when hearing of the action was fixed for dates In June 1986 and subsequently adjourned to October 1986. The 2nd defendant never at any time, up to this stage, raised any objection to the writ or its service.
On 19th September 1986, however, the 2nd defendant through its counsel, Mr. Onadele filed a motion in court praying for
‘an order or orders setting aside the service upon the second defendant of the writ and the Statement of claim, to strike out the writ of summons and set aside any step already taken in the proceedings in so far as the second defendant is concerned………’
The grounds for the application were stated as follows:-
‘(i) no leave of this Honourable Court was obtained before the writ of summons which was to be served outside the jurisdiction of this Court was issued.
(ii) no leave of this Honourable Court was obtained before the writ of summons was served outside the jurisdiction of this court, namely, Ibadan, Oyo State
(iii) the writ of summons was issued in breach of the High Court of Lagos State Civil Procedure Rules which provided for a writ with necessary endorsement concerning service out of courts jurisdiction as contained in Form No. 3 of Appendix A to the rules;
(iv) the writ of summons was neither endorsed marked nor served as required by the Sheriffs and Civil Process Act and the Enforcement of Judgments and Services of Process Rules Cap 189 Laws of the Federation of Nigeria and Lagos, 1958;
(v) the time limited for appearance by the writ was shorter than the period stipulated by the said Act.
(vi) the court has no jurisdiction to entertain the action on account of paragraphs (i) to (v) above.’
In the supporting affidavit the following facts were relied on:
‘3 That the said Odua Investment Co. Ltd. is a limited liability company with its registered office at Cocoa House, Ibadan, where it carried on its business.
4. That the writ of summons filed in this action was served on the second defendant through one of us employees at Cocoa House Annex, Ibadan, Oyo State, on the 6th of September, 1985.
5. That the second defendant has been informed by its solicitor in this action and verily believes that after a thorough search at the High Court Registry at Ikeja the Registry could not find any order having been obtained by the plaintiff prior to the service of the said writ at Ibadan.
6. That the said writ did not contain any endorsement as notice to the effect that it was meant for service outside the jurisdiction of this Honourable Court.
7. That the said writ commanded the second defendant to appear to it within eight days of the date of service.
8. That the second defendant has been informed by its solicitor in this action and it verily believes that the procedure adopted in the service of the said writ and other court process on the second defendant is irregular and vitiates the exercise of jurisdiction by this Honourable Court.’
In his counter-affidavit, Mr. Adesina, counsel to the plaintiff, deposed –
‘3. That since the writ of summons was served on the 2nd defendant at Cocoa House Annex, Oyo State on the 6th day of September, 1985 as deposed to in paragraph 4 of the affidavit in support, the 2nd defendant by its counsel Mr. Samuel Adetayo Onadele entered an unconditional appearance on 13/9/85.
4. That by the said unconditional appearance the 2nd defendant indicated an address for service within the jurisdiction of this Honourable Court, to wit c/o Dr. F.A. Ajayi s Chambers, 5th Floor,Western House, Lagos.
6. That since the filing of Exhibit A by the 2nd defendant all subsequent processes in this matter has been served on it through the address for service indicated within the jurisdiction as exemplified by a photocopy of the affidavit of service of the statement of claim sworn to by one Tunde Adelenu, Bailiff o the High Court, Ikeja on the 18th October, 1985 attached hereto and marked Exhibit B.
7. That on the 28th April, 1986 the 2nd defendants counsel, Mr. Adetayo Onadele wrote a letter a copy of which is attached and marked Exhibit C to me seeking consent for the its (sic) statement of defence to be filed out of time after already filing the said statement of defence.
8. That by letter dated 7th May, 1986 attached hereto and marked Exhibit D I as plaintiff’s counsel gave the consent sought by the 2nd defendant
9. That summons for Direction was filed in this matter and on the 13th/ 1/86 the matter was fixed for hearing on the 3rd, 4th and 5th of June, 1986.
10. That on the 3/6/86 all parties were in court represented by their respective counsel, including Mr. Adetayo Onadele for the 2nd defendant who did not raise any objection as to irregularity or otherwise, and all parties agreed that the matter be fixed for hearing on fresh dates of 23rd and 24th October, 1986.
11. That I verily believe that by the actions of the 2nd defendant deposed to in paragraphs 3,4,5,7 and 10 above, and the 2nd defendant has waived its right to seek that service of the writ of summons be set aside and has submitted itself to the jurisdiction of this Honourable court, and that this motion is misconceived, frivolous and an abuse of the process of this Honourable Court.’
By this counter-affidavit the plaintiff impliedly admitted the irregularities complained of in the affidavit in support of the motion. The plaintiff also filed a notice of preliminary objection to the application. The objections raised were:
‘1. That the application should have been brought by way of originating summons and not by way of motion.
2. That it is too late to bring the application after the 2nd defendant has entered unconditional appearance to this suit.’
He relied on Order 8 rule 11 of the High Court of Lagos State Civil Procedure Rules, 1972 for the preliminary objection.
Both the application and the notice of preliminary objection were heard together by Balogun J. who, in a reserved ruling, struck out the first ground of the preliminary objection in that it was misconceived. He held, following Adejumo and Anor. v. Military Governor of Lagos State (1970) 1 All NLR 183, that any application to the High Court to set aside or stay any proceedings as being irregular, should be by motion. He considered the second ground of objection along with the main application. After a review of a number of authorities, the learned Judge held:
‘I think in this present case it is equally too late for the 2nd defendant/applicant to raise, at this late stage in the proceedings, the issues which it is now raising on this present motion, and the applicant must be deemed to have waived whatever procedural rights it had under the sections 97 and 99 of the Sheriffs and Civil Process Act and under all the other enactments and rules of court still relied upon by it on this application. I do not think it is entitled at this stage of the proceedings in the circumstances of this case to complain any longer about any defects still relied upon by his counsel on this application (or on any defect originally raised by it but which has now been abandoned).
It is for all those reasons (and the other reasons stated herein after in this Ruling) that I accept all the submissions of Mr. Aderemi Adeshina, learned counsel for the plaintiff/respondent, that the present application is totally misconceived and an abuse of the process of the Court.’
On waiver, he held:
“……………………. the 2nd defendant/applicant having knowledge of all his right or rights under the provisions of sections 97 and 99 of the Sheriffs and Civil Process Act, Rules4 and 6 of the Enforcements of judgments and service of Process Rules, Cap 189, Laws of the F Federation of Nigeria and Lago
Other Citation: (1997) LCN/2708(SC)
