Mr. Sylvester Mako V. Barrister Felicia B. Umoh (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE UWANI MUSA ABBA AJI, JCA (Delivering the leading Judgment)

This is an appeal against the Ruling of Honourable Justice A. O. Adeniyi of the High Court of Justice of the Federal Capital Territory, Holden at Lugbe, Abuja, delivered on the 31st day of March 2008.

The Respondent, as plaintiff in the lower Court as 1st, 2nd and 3rd Defendants respectively, claimed for:-

1. A declaration that the Plaintiff is entitled to quiet possession of the property situated at House 46, Drive 2, Prince and Princess Estate, Duboyi, Abuja, being a sitting tenant, irrespective of the change of title between the 1st Defendant (the Appellant) and the 2nd Defendant.
2. A claim of the sum of five million Naira (415, 000,000.00) only being special damages for trespass Jointly and severally from all the Defendants.
3. A claim of the sum of Ten Million Naira (N10, 000,000.00) only being general damages for trespass jointly and severally from all the Defendants.
4. A claim of five Hundred Thousand Naira (N500, 000.00) only as cost of action jointly and severally, from all the Defendants.

The Appellant (1st Defendant) filed a motion on Notice against the Respondent (plaintiff) challenging the competence of the suit and prayed for the following reliefs.

1. An Order setting aside the writ of summons issued in that suit against the Appellant for being incurably defective, invalid, null and void.
2. An Order setting aside the purported service of the writ of summons and other originating processes in the suit on the Appellant (1st Defendant) for being effective, invalid and null and void.
3. An Order striking out the name of the Appellant from the suit as the Honourable court has no jurisdiction to entertain the suit against the Appellant.

The Appellant’s case was that the writ was not marked “Concurrent Writ” for service outside jurisdiction of the lower court and “30 days” mandatory period was not endorsed on the Writ served on the 1st Defendant (Appellant). Secondly, that the Appellant was not personally served with the originating processes having been served through his secretary or office administrator.

Dismissing the motion, the lower court held at pages 58 – 60 of the Records as follows:-

“…Even though I agree with the submission of learned counsel to the 1st Defendant that these defects are apparent on the face of the Writ meant for service on the 1st Defendant, however such defects, in my view are not so substantial as to invalidate the Writ itself. In this respect, I choose to align myself with the pro-active attitude of the Supreme Court as I am bound to, as courageously demonstrated in the case of BROAD BANK OF NIGERIA VS OLAYIWOLA & SONS LTD (2005) 3 NWLR (PT 912) 434. In this case, the Supreme Court held that the endorsement as to “30 days” mentioned in Section 99 of the sheriff and Civil Processes Act, is merely directory.

It should not therefore be used as a sword to defeat the end of justice of the case… I therefore hold…..that despite that there were indeed procedural defects in the Writ of Summons filed by the Plaintiff in this suit with regards to the insertion of the words “Concurrent Writ” and “30 days” as required by Sections 98 and 99 of the Sheriffs and Civil Processes Act, such defects, are not substantial enough to invalidate the writ itself.

Although I do agree and I accept that even on the face of the affidavit of service itself, the service of the writ on the 1st Defendant was irregular since same was not served personally on him, I am however mindful that this court, by its inherent powers and by virtue of Order 2 Rule 1 (1) of the Rules of this court, has the discretion to cure the defect in service. After all, the essence of service is to secure the attendance of a party in Court…”

The Appellant is dissatisfied with this Ruling and has appealed to this Honourable Court, vide a Notice of Appeal dated and filed on the 11th of April, 2008. The Appellant filed an Amended Notice of Appeal on the 13th of August, 2008 which was deemed properly filed by order of court on the 9th of February 2009.

The Grounds of Appeal, without their particulars are hereby reproduced:-

GROUNDS OF APPEAL:

GROUND ONE:

“The Learned trial Judge erred in law in holding that the obvious defect in the Writ of Summons; is a mere irregularity which are not substantial and can be cured when in the ruling delivered on 31/03/08, the court held:-