Awa Okorie Uchendu & Ors. V. Chief Eyo Ogboni & Ors. (1999)
LAWGLOBAL HUB Lead Judgment Report
O. UWAIFO, J.S.C
These appeals come from a decision of the Court of Appeal, Enugu Division given on 7 February, 1987. They are in respect of a land dispute between three villages which, in a primary con, may be regarded as border villages of two States. The plaintiffs of Biakpan in Akampa Division of the erstwhile South Eastern State (now more particularly of the Cross River State) claim the land to be theirs, naming it Okporokun. The 1st set of defendants of Abia village in Ohafia Division of the erstwhile East Central State (now more particularly of Abia State formerly part of Imo State) call the land Aliedo while the 2nd set of defendants of Achara Ihie village in Arochukwu Division also now of Abia State call the land Ugwu Ofo. The claim brought on 12, October, 1973 in the High Court, Calabar of now Cross River State was for
(a) a declaration that the land known as Okporokun as delineated in the plaintiffs’ plan No. EAAC/489/LD is part of Biakpan communal land and
(b) perpetual injunction to restrain the defendants by themselves, their servants, agents or assigns from alienating, dealing with or doing anything in the said Okporokun inconsistent with the communal ownership of Biakpan of it.
The 1st sets of defendants were originally the only defendants. As between them and the plaintiffs, issues were joined on the pleadings sometime in March, 1975 and hearing of the case by Kooffrey, then Ag Chief Judge, commenced on 2 July, 1975.
But while the cross-examination of the first of the plaintiffs’ witnesses (P.W.1) was continuing, the court ordered the joinder of the 2nd set of defendants on 6 January, 1976 upon an application made by them. There is nothing to show that the writ of summons was accordingly amended, nor was the statement of claim.
Even the statement of defence filed by the 2nd set of defendants in March,1976, did not properly reflect them as party to the suit as such. The parties constituting the title of the suit were simply stated thus:
Chief Eyo Ogboni & 2 Ors Plaintiffs
(For themselves and as representing the people of Biakpan in
Akamkpa Division of East Central State),
Chief Awa Aja & 3 Ors Defendants
For themselves and as representing the people of Achara Ihie in Arochukwu Division of East Central State).
It will be observed, first, that the plaintiffs were erroneously described as people of Biakpan in Akampa Division of East Central State instead of South Eastern State. Second, the defendants on record as stated in the statement of defence are simply those representing the 1st set of defendants of Abia in Ohafia Division which, in that sense, exclude the 2nd set of defendants themselves. Third, over and above that, those inadequately stated on record as the defendants were erroneously described as people of Achara Ihie in Arochukwu Division whereas they are Abia people of Ohafia Division.
All the above noted irregularities were not formally corrected. There was indeed throughout no amended writ of summons. As to the other irregularities, it was only in some subsequent motions that the representative capacities of the parties were indicated. Even so, all the parties ‘on record’ were not specifically named. It would appear also that after the order of joinder was made no notice under Order 4, r, 5(1) of the High Court Rules (Cap. 51) Laws of Cross River State, 1979 was issued. Arguments in respect of some aspects of the defaults in this joinder procedure have been canvassed by the 1st set of defendants (to whom I shall hereafter refer to as the 1st set of appellants) on their appeal. The 2nd set of defendants shall be referred to as the 2nd set of appellants while the plaintiffs shall be the respondents. On the basis of the issues joined in the circumstances of the irregularities already identified, and the evidence led, the learned Chief Judge gave judgment for the respondents on 26 November, 1979.
The 1st set of appellants through their counsel, Mr. Kehinde Sofola SAN, extensively canvassed at the Court of Appeal the inadequacies in the evidence relied on by the respondents, the unsupported findings of fact by the learned trial Chief Judge and misdirection as to the burden of proof. On the other hand, the 2nd set of appellants represented by Mr. A.N. Anyamene SAN raised issues of some irregularities in the proceedings at the trial court, but more particularly attention was drawn to the failure of the respondents to prove title either by traditional evidence or by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of exclusive ownership. The learned trial Chief Judge was criticized for (1) ignoring the clear evidence coming from the respondents that the land belonged jointly to them and the 2nd set of appellants, (2) making perverse findings of fact and (3) giving judgment for the respondents before considering the case of the 2nd set of appellants and making findings thereon as faulted in Odofin v. Mogaji (1978) 4 SC. 91.
The Court of Appeal in its judgment of 9th February, 1987 dismissed the appeals. On appeal against that judgment the 1st set of appellants raised five issues, for determination in their brief of argument. But I think at the hearing of the appeal, the main focus was on the pleadings, the evidence and the manner in which the learned trial Chief Judge dealt with them. It was the contention of learned counsel Mr. Molajo who appeared for the 1st set of appellants in this court in his oral presentation of the appeal that the learned trial Chief Judge failed in his primary duty to properly evaluate the evidence and that in addition to that he made a finding which ought to lead to the dismissal of the respondents’ case: the finding in effect being that one party showed evidence of positive and numerous acts of possession on the land in dispute and the other party showed similar evidence also on the land.
It was therefore argued that going by the strength of the evidence and also the nature of the said finding made, the learned trial Chief Judge had no justification to give judgment for the respondents.
Consequently, that the Court of Appeal was in error to have affirmed that judgment.
The last two of the five issues raised are made the basis of the argument in question and I think they are indeed sufficient to dispose of the first appeal. They read as follows:-
“(4) Whether the Court of Appeal was not in error when it affirmed the decision of the learned trial Judge in which a declaration of title to the land in dispute was made in favour of the plaintiffs/respondents.
(5) Whether the Court of Appeal was not in error when it affirmed the decision of the learned trial Judge by which he made an order of injunction against the appellants.”
However, it will be recalled that I adverted to some irregularities in the processes filed following the order for the joinder of the 2nd set of appellants as defendants. Having regard to that circumstance, I consider it might be worth dealing briefly with issue 2 which reads: “Whether the Court of Appeal was in error in not holding that the order of joinder of the 5th and 6th defendants made by the trial Judge was wrong, and that in consequence the whole proceedings were a nullity in law.” I need to formally say that issues I and 3 are, in my view, of no moment. In whatever way they are resolved that will not remotely affect the result of this appeal. I find no cause therefore to set them out, or to place on record any possible resolution of them, on this appeal.
Let me dispose of issue 2 first. The first aspect of the argument of the 1st set of appellants on this issue goes like this: the motion paper upon which the prayer for joinder of parties was sought did not indicate which rule of court was relied on. That obviously, in my view, is not a strong point. It is true that a particular rule of court or law under which a motion is brought is generally stated on the motion paper. But failure to do this will neither make the motion incompetent nor the order granted upon the motion invalid, so long as there exists a rule or law which can back up the motion. This is elementary sense of justice which needs no authority. But see Onea v. Egbuchi (1970-71) 1 ECSLR 80.
Next it was argued that the learned trial Chief Judge did not comply with Order 4, r.5(1) of the High Court Rules of Cross River State, 1979. The said rule provides:
“5(1) If it shall appear to the court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be. In such case the court shall issue a notice to such persons, which shall be served in the manner as the court thinks fit to direct; and on proof of the due service of such notice, the persons so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause: Provided that a person so served, and failing to appear within the time limited by the notice for his appearance, may at any time before judgment in the suit, apply to the court for leave to appear, and such leave may be given upon such terms (if any) as the court shall think fit.”
The submission was that a notice should have been issued to such parties whether or not they were in court when the order was made; and that that not having been done, the order for joinder was defective.
I feel unable, with due respect, to accept that contention, I think such a notice will primarily be needful if the parties concerned were not in court. If they were, the time within which to appear would have been recorded and read out by the court. But I think what ought to be insisted on is that the writ of summons and statement of claim be amended pursuant to the order of joinder of parties, and served, unless there is any rule which enables the court to dispense with that as it was in the case of Odadhe v. Okujene (1973) 11 S,C, 343 at 351-352; (1973) 8 NSCC 537 at 540-541, otherwise, the amended writ should ordinarily be served since “the writ as amended becomes for this purpose the original commencement of the action …”: see Sneade v. Wotherton Barytes and Lead Mining Co. (1904) 1 K.B. 295 at 297 per Collins MR.
It is, I think, a rule of first principles, that an action commenced by writ of summons or other process must be served on the defendant. In the same way, an amended original writ by the addition or substitution of a party thereto ought to be seen as the equivalent of a new writ issued against that party, and therefore the plaintiff has to serve the amended writ according to service rules or as may be directed by the court. The decision of the House of Lords in Kettleman v. Hansel Properties Ltd (1987) AC 189: (1988) 1 All ER 38, though given in the interpretation of RSC Ord. 15, rr.6, 7& 8 (4), is very instructive in principle. There may not, in certain rules of court, be an express provision for re-serving a defendant who had already been served with a writ before it was amended as a result of a plaintiff having been added, or substituted or struck out by an order of court. But it has been held that as a matter of prudence or practice the court will see that the amended writ is served personally or by substituted service if there is any possibility of injustice being done to the defendant; see Jamaica Railway Co. v. Colonial Bank (1905) 1 Ch. 677.
The foregoing underlines the requirement to amend and serve a writ (as well as statement of claim) where there has been a joinder of parties. There is no direct rule in the High Court Rules of Cross River State in this regard. However, it would appear to me that a broad interpretation of Order 4, r. 5(1) already reproduced above would cover the requirement to amend and serve a writ in a situation like this case. In the present case, the writ was not duly amended although the original writ was served on the 2nd set of appellants. The 1st set of appellants argued finally on this point thus: “If a writ was not served, then the proceedings thereafter became null and void and there is no evidence that this procedure was followed. It would appear however, that the 5th and 6th defendants filed a statement of defence on March 1, 1976. There is no evidence that the plaintiffs served any amended writ on the appellants nor is there evidence that the second set of defendants were served with the amended writ which the plaintiffs were in law bound to do. See Bello Adeleke v. Falode Awolivi & Anor (1962) 1 SCNLR 401 (1962) 1 All NLR 260. “I observe that this same case was cited in Practice and Procedure by Aguda 2nd ed. para. 12.31 in support of amending and serving a writ when there is a joinder of parties. I am afraid I cannot find that that case so directly decided after a careful reading of it. But certainly I endorse the comments made in paras. 12.30 to 12.31 which I reproduce inter alia:
12.30 “The party wanting a joinder makes an application to the court supported by an affidavit. Since such an application is one in a pending cause, all the existing parties to the action are entitled eo ipso to be served with the notice of the proposed joinder … However, it is not necessary to give to the party to be joined notice of such an application.
12.31. If the application is granted, the Court will issue a notice to the persons joined which will be served in the manner provided for the service of summons or in any other manner as the court may direct. The writ of summons is amended accordingly and the plaintiff, unless otherwise ordered by the Court files a copy of the amended writ and serves the new defendant with the writ as amended…”
Although I must not be seen as condoning the tardy procedure followed and the processes filed after the joinder of parties in the present case. I do not see, on the whole, how the 1st set of appellants was prejudiced by the failure to amend the writ before service on the 2nd set of appellants. The case was contested to finality at the trial court without even a whimper from anyone that some ‘fundamental’ irregularity had occurred. This is not an aspect of incompetence of a court process which will affect the proceedings ab initio and make them a nullity. The issue raised thereby is without merit and I answer it in the negative.
Issues 4 and 5 will be considered together. It is clear from the statement of claim that the respondents did not plead traditional history as their root of title. To so plead there must be averments as to the devolution of the land right from the original founder to the present respondents without leaving any unexplained or unexplainable gaps in the line of successors. This court has established this principle of law in several cases notable among which is Owoade v. Omitola (1988) 2 NWLR (pt.77) 413 at 424-425 and needs no restatement. The Court of Appeal has since been going by that principle. The insufficient averment as to the founding of the land in dispute in this case is in para. 7 of the statement of claim and it reads: “The people of Biakpan are descendants of the first son (Akpan) of Ubaghara, the common ancestor of Ubaghara clan which consists mainly of Biakpan and Ikun groups. Biakpan means in English, descendants of the first son. At the time Biakpan was founded at its present site there was no place known as Abia.” This does not show the devolution of the land and so the respondents did not, and could not, found the claim on traditional history.
The root of title relied on by respondents is therefore exclusive possession from time immemorial. This is pleaded in paras. 15 and 16 as follows:
“15. The land in dispute has been in the exclusive possession of the plaintiffs from time immemorial. Plaintiffs have exercised maxim acts of ownership including cultivating the land in dispute tapping ratia wine palm, cutting sticks for building, fishing in the streams and ponds, planting of economic trees on the land in dispute.
- Plaintiffs’ people have a number of plantations on the land in dispute. These including plantation of Offiong Ubio, Ekpezu Mbra, Chief Mbaogar Ekpe, Ase Okara, Chief Uno Mba and others. Plaintiffs also have large cassava and other farms on the land in dispute:’
The appeal of the 1st set of appellants will only be considered within a fairly narrow compass. This is because all the arguments as to facts are not supported by competent grounds of appeal since no leave was obtained in respect of those grounds. Learned counsel for the respondents raised this point in the brief of argument of the respondents and I think he is justified. This court has on a number of occasions made pronouncements on this issue. In Akpasubi v. Umweni (1982) 11 SC.132 at 139-140; (1982) 13 NSCC 438 at 440, Eso JSC observed:
“Now, it seems to me that the ground of appeal argued by the appellant’s counsel is one of fact. No leave was given to the appellant either by the Federal Court of Appeal or this court to file a ground of fact. The appellate jurisdiction of this court on question of fact only exists where there has been leave of the Federal Court of Appeal or of this court. No appeal on question of fact lies to this court without such leave. In order words, where as it would appear to me in this case, question of fact has been brought before this court without leave, the court has no jurisdiction.”
Section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979, was then cited as authority. Similarly, in Ige v. Olunloyo (1984) 1 SCNLR 158 at 184; (1984) 15 NSCC 102 at 122. Nnamani JSC said inter alia: “In ground 3 of the grounds of appeal the appellant was concerned with issues of facts … argument on issue of facts was not open to the appellant since he did not obtain leave of this court to argue issue of facts. See section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979.”
The short point therefore on this appeal is the legal consequence of what the learned trial Judge found as to the evidence of possession by the 1st set of appellants and the respondents in respect of the land in dispute. He said:
“There is evidence of possession and use of the land, positive and numerous on both sides but I see nothing in that of the Abia defendants to warrant the inference that their possession of the land was to the exclusion of the plaintiffs’”
‘What the above observation means is that though Abia people (i.e. 1st set of appellants) are in possession of the land, they do not possess it exclusively: the respondents are also in possession of part of it. In other words, the respondents are themselves not in exclusive possession of the land. Once it was held that both parties were in possession of the land in dispute, the respondents could not get a declaration of title and an order of injunction unless they were able to prove that better title to the land was in them. It must be remembered that it was the respondents who sought the reliefs of title and injunction in respect of the land in dispute and who bore the burden of proving their entitlement to those reliefs: See Amakar v. Obiefuna (1974) 1 All NLR 119 at 126. To succeed in trespass they must prove exclusive possession of the land: see Ogunbiyi v. Adewunmi (1988) 19 NSCC 268 at 272; (1988) 5 NWLR (pt. 93) 215 at 221. It was therefore an error in law for the learned trial Judge to have given judgment to the respondents in the face of that finding he made. Accordingly, the Court of Appeal was wrong to have upheld the judgment.
In regard to the appeal by the 2nd set of appellants, four questions were set down in the brief of argument prepared by their counsel Mr. A.N. Anyamene SAN for determination as follows:
“(a) Did the court below perform its statutory function of determining the appeal of the 2nd set of appellants therein on all the grounds of appeal canvassed by them
(b) If no, did the default in failing to so consider all the grounds of appeal occasion a serious miscarriage of justice
(c) Was the interpretation which the court below placed on the effect of S.99 of the Sheriffs and Civil Process Act on the proceedings in the trial court as expounded by this court in Skenconsult (Nigeria) Limited v. Godwin Ukey (1981) 1 S.C.6 correct in law
(d) If the answers to (a) and (c) above are in the affirmative, was the court below right in law in affirming the judgment of the trial court having regard to the complaints of the 2nd set of appellants herein against the said judgment particularly the failure of the trial court to give effect to the admissions of the plaintiffs (respondents herein) in favour of Achara Ihie”
Note: I think the opening part of question (d) is really misleading as what follows after does not fit in having regard to the supporting argument.. The question, in my view, should read:
(b) If the answers to (a) and (b) are in the negative and affirmative respectively, was the court below right in law in affirming the judgment of the trial court having regard to the complaints of the 2nd sets of appellants herein against the said judgment particularly the failure of the trial court to give effect to the admissions of the plaintiffs in favour of Achara Ihie
The grounds of appeal indicated in the brief which were not considered by the court below were grounds 3, 10 and 11. In my view, they were substantial grounds. The said ground 3 simply reads: “The learned trial Judge erred in law in awarding title to the plaintiffs before considering the case of the 5th and 6th defendants.” The learned trial Chief Judge in his judgment said:
“I have therefore to give the plaintiffs the declaration and the injunction sought subject to whatever is their limitation of the right as a result of the operation of the Land Use Decree. See the case of Darke v. Agyakwa 9 WACA 163.
The next point is to consider the claim of the 5th and 6th defendants, Achara Ihie people. They have stated that the plaintiffs have added their land called Ugwu Ofo to their claim when suing the Abia defendants. The evidence of Achara people was to the effect that they gave the Abia people where they are now settled and did not give them the area now in dispute:’
The learned Judge gave the impression that the 2nd set of appellants had a claim (or counterclaim) in the proceedings. That is not so. They were merely defending the respondents’ .claim. It can therefore be clearly appreciated that the learned Judge having given the said respondents judgment in respect of the land in dispute. it would present, unfortunately, as sheer parody of justice to proceed thereafter to consider the defence of the 2nd set of appellants. That would serve no purpose at all. That was what happened in Odofin v. Mogaji (1978) 11 NSCC 275 which at pp.278-279 was deprecated by this court.
The next is the said ground 10 which, without the particulars, reads: “The court below misdirected itself in law and on the facts in awarding title to the entire land in dispute to the plaintiffs against the 5th and 6th defendants of Achara contrary to the evidence in the case tendered on behalf of the plaintiffs.” The most crucial of the said evidence was given by the 3rd plaintiff who testified as p.w.1. He said in cross-examination: ‘the land in dispute belongs to Achara and Biakpan. Biakpan and Achara have a boundary within the land in dispute. That boundary starts from the Ngwu tree and runs to a stream where (sic) we call ‘Ofong’.” In re-examination, he said: “Okporokum is the name of the land in dispute, Achara people have land within the land called Okporokum,” By way of a reminder, Achara people are the 2nd set of appellants while Biakpan people are the respondents (plaintiffs), With this evidence there could be no basis for awarding a declaration of title to the land in dispute and an order of injunction in favour of the respondents. These two aspects of oversight by the learned trial Judge were adequately emphasised by Chief Ezebilo in his presentation of the oral argument on behalf of the 2nd appellants. The remaining ground 11 is, in my view, a combination of these grounds 3 and 10 already considered.
The question is, how and why did the Court of Appeal overlook those grounds in considering: the appeal of the 2nd set of appellants When considering submission or the inadequacies in the evidence as to title and how the learned trial Judge dealt with them, the learned Justice of the Court of Appeal. Aseme JCA who read the leading judgment, said: “The submission under this head of issues for determination overlooked the impeccable evaluation of the evidence of the plaintiffs and indeed also that of the defendants. The learned trial Judge properly reviewed the evidence of parties separately before coming to his conclusions.” The learned Justice even considered that there was conflicting traditional evidence by the three communities which he held the learned trial Judge resolved satisfactorily by ‘a straight finding of fact’ as to whose evidence he believed. I have earlier pointed out that there was no traditional history pleaded in the form demanded by law, Even if such history had been pleaded by each of the three communities and traditional evidence conflicted one with the other, that could not be resolved by ‘a straight finding of fact’ as to which to believe. The well known rule in Kojo II v. Bonsie (1957) 1 WLR 1223 would have had to be closely applied,
A careful study of the judgment of the lower court does not seem to me to be supported by the record of the trial court. Also, if the lower court had considered grounds 3, 10 and 11 of the appeal of the 2nd set of appellants, I have no doubt that it would have affected the result of the appeal. I will accordingly answer questions (a). (b) and (d) as follows:
Question (a), no: question (b), yes and question (d), no,
The appeal of the 2nd set of appellants must be allowed,
I turn to question (c). The argument canvassed by Mr. Anyamene in the brief, in a nutshell. is that what Skenconsult Nigeria Ltd. v. Ukey (1981) 1 SC.6, (1981) 12 NSCC 1 established is that failure to comply with section 99 of the Sheriffs and Civil Process Act (which provides that where a writ of summons is issued in one State for service in another State a period of at least 30 days must elapse between the date of service and the date that the defendant is required to appear in court) leads inexorably to the proceedings conducted thereafter being declared a nullity. It is said that Achara Ihie was not allowed up to 30 days within which to answer before the court after the service of the writ on them following their joinder to the action. The argument was concluded thus: -The argument of Achara Ihie in the court below was that the proceedings being a nullity. Their joinder was a nullity. They could not argue that their joinder was a nullity without showing that the proceedings up to the point they were joined were a nullity,” It should be noted that the said Achara Ihie people took part in the proceedings after the joinder which was at their instance. I therefore find this argument not only unattractive but also clearly untenable.
Section 99 of the said Act provides that:
“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 services 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.”
When this provision is read along with sections 97 and 98 of the Act, which I need not reproduce, it will be clear that the writ in question is one for service outside the jurisdiction, A writ so served must allow for at least thirty days for the defendant to answer to it before the court.
Now, the whole purpose of section 99 is, for obvious reasons, to afford a defendant outside the jurisdiction sufficient time (which the law makers in their wisdom considered to be 30days) to arrange to answer to the writ before the court form the date it was served on him as a matter of mere convenience so that no order may be made behind his back within that period. If for any cause (mistake or oversight of the provision of section 99, may be) less than thirty days is endorsed on the writ, but the defendant duly appeared and participated in the proceedings the proceedings cannot be regarded as a nullity simply because the defendant had less than thirty days to answer to the writ. The mere non-compliance with section 99 does not create a jinx on the proceedings that follow.
The ratio decidendi of Skenconsult case as regards section 99 has been fully explained by this court in subsequent cases. To begin with, an objection as to noncompliance with section 99 of the Act must be taken before trial. In Ezomo v. Oyakhire (1985) 1 NWLR pt.2) 195, one of the issues was the contention “that there was no compliance with s.99 of the Sheriffs and Civil Process Act, Cap.189 volume IV, Laws of the Federation in that the period between 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,”: see pages 201-202. At page 203 Aniagolu JSC, who read the leading judgment which was concurred in by all the other four justices, said: “By contesting the case to the full, on the merit, without earlier taking preliminary objection before trial, the appellant must be deemed to have waived whatever right he had under that section.” This position was put beyond doubt in Saude v. Abdullahi (1989) 3 NWLR (pt.116) 387 at 405 per Uwais JSC (now CJN) as follows:
“It has since been established by a plethora of authorities that the appropriate time at which a party to proceedings should raise an objection based on procedural irregularity is at the commencement of the proceedings or at any time when the irregularity arises. If the party sleeps on that right and allows the proceedings to continue on the irregularity to finality, then the party cannot be heard to complain at the concluding stage of the proceedings or on appeal thereafter, that there was a procedural irregularity which vitiated the proceedings.”
In the case of Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (pt. 109) 250 in which Skenconsult was similarly relied upon, although there had been due appearance to a writ which did not specify the minimum period of 30 days within which the defendant should answer to it, Agbaje JSC observed at page 293:
“It appears clear to me that Nnamani, J.S.C., in his judgment was concerned with a situation where a defendant had not been served with a writ of summons in which case the court would have no jurisdiction over that defendant. He was not concerned with a case of submission to the jurisdiction of the court by a defendant, a situation which will give the court jurisdiction over that defendant:’
It seems to me that when a defendant has truly submitted to jurisdiction or, worse still, has taken part in proceedings in respect of which he complains later that section 99 of the Sheriff and Civil Process Act was not complied with, he cannot be heard to say either that the writ was defective for non-compliance or that the proceedings were a nullity in reliance on sections 97-99 of the Act or the decision in Skenconsult. The 2nd set of appellants fall within this having fully participated in the proceedings after the order of joinder. I think learned counsel for the respondents quite effectively met the arguments of the appellants under question (c) on this appeal. I will answer that question in the affirmative.
Having regard to all the circumstances of this case. I allow the appeal of the 1st set of appellants. I also allow the appeal of the 2nd set of appellants. I hold that the respondents failed to establish their case and accordingly the action dismissed. I award N10,000.00 costs to each set of appellants against the respondents.