The Court of Appeal sitting in Lagos has upheld the appeal filed by the Federal Housing Authority (FHA) against the judgment delivered by a Lagos High Court in favour of Food Concept & Entertainment Limited.
Justice Lateef Lawal-Akapo had on June 22, 2012, delivered a ruling in favour of the firm in a suit where the appellant challenged the validity of the writ of summons to the effect that it was defective.
FHA had based its preliminary objection on the writ, which it argued was defective since it was not endorsed as a writ to be served outside jurisdiction, contrary to the provision of Section 97of the Sherriff and Civil Process Act Cap S6 Laws of the Federation of Nigeria 2004.
The lower court dismissed its application and held that since the appellant filed an ex parte application to serve the process out of the jurisdiction, the statement of claim supersedes the writ.
The court also held that as much as the respondent (FHA) entered appearance and filed the process, it has waived any right of objection to the competence of the writ.
Dissatisfied with the decision of the lower court, which dismissed its preliminary objection and held that the issue of endorsement on the writ was a technical issue, which should not overrule substantial justice, FHA appealed against the ruling.
FHA argued that the word ‘shall’ makes the special endorsement mandatory and therefore any writ to be served outside a state without the endorsement becomes invalid.
In a lead judgment delivered by Justice Ebiowei Tobi, with Justice Joseph Shagbor Ikyeh and Justice Bilikisu Bello Aliyu in the panel, the court of appeal unanimously agreed with the submission of the appellant’s counsel.
“If there is truly a defect on the endorsement on the writ, I do not see how the statement of claim remedies or rectifies that defect. The argument of the respondent’s counsel is of no moment at all. It is not worth considering, not even for a second.
“The appellant under the Lagos State Civil Procedure Rules could not have raised any objection without first filing his appearance and processes, including the statement of defence.
“That apart, it is worthy of note that the appellant did not enter an unconditional appearance. In simple terms, the appellant entered appearance in protest,” the court held.
The court of appeal held that “where a defendant is served with a writ of summons in breach of Sections 97 and 99 of the Act, he has a choice either to object to the service by applying to have it set aside and the court ex debito justitiae (entitled merely upon the asking for it) will accede to the application or ignore the defect and proceed to take steps on the matter.
“By entering unconditional appearance and filing pleadings, as in the case on hand, this gives notice to the respondent that all is not well,” the court said.
The court, therefore, held “that lower court has no discretion under Section 97 of the Sheriffs and Civil Process Act. “Once the claimant fails to comply with the mandatory provision in Section 97 supra, the court would no longer have jurisdiction to hear the suit.
“It is fundamental that the claimant obeys and complies fully with the provision. The defendant can enter no valid appearance to an originating process that does not have the mandatory endorsement, except to enter conditional appearance.
“I have examined the originating summons and the subsequent amendment to it and I am satisfied that there is no endorsement on it for service in Abuja outside Delta State. The originating summons is invalid, worthless, and void. There would be no need for me to consider whether leave was obtained since non-compliance with Section 97 of the Sheriffs and Civil Process Act brings the hearing of this appeal to an end,” Justice Tobi declared.
He, therefore, held: “This appeal in the circumstance succeeds and it is allowed. Consequently, the ruling of the Lagos State High Court delivered on June 22, 2012, in respect of the appellant’s notice of preliminary objection is hereby set aside.
“The preliminary objection filed on February 3, 2011, succeeds and it is granted. The suit is therefore struck out in its entirety.”