National Electric Power Authority V. Mrs. P. O. Onah (1997)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The power to issue and serve writ out of jurisdiction is the matter involved in this appeal. The suit which brought about this appeal was filed in the High Court of Justice, Bendel State with the following claim:

“The plaintiff’s claim against the defendant jointly and severally is for the sum of N300,000.00 being special and general damages in that on the 26th of January, 1987 in Benin City within the jurisdiction of this Honourable Court the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th defendants as agents or servants of the 8th defendant negligently carried out electrical connections at No. 55A New Lagos Road, Benin City which resulted into a big fire that destroyed the plaintiff’s Hair Care equipment. The defendants have failed and/or refused to pay the said sum of N300,000.00 despite repeated demands.

WHEREOF the plaintiff claims against the defendants jointly and severally the sum of N300,000.00; Dated at Benin-City this 19th day of March, 1987.”

A writ of summons was issued and served on all the defendants including the National Electric Power Authority, the 8th defendant and appellant, in this appeal. Soon after service the appellant filed and moved a motion before Joan Aiwerioghene J. of Benin High Court, and prayed for an order setting aside the writ of summons served on NEPA in Lagos and the service thereof, in that the same:

“(a) is a domestic writ having no validity outside Bendel State because it is not properly endorsed for service and served out of the State and in Lagos State where the 8th defendant is resident as required by Section 97 of the Sheriffs and Civil process Act Cap 189 of the Laws of the Federation of Nigeria;

(b) does not prescribe the mandatory minimum of 30 days required by section 99 of the Sheriffs and Civil Process Act Cap 189 of the Laws of the Federation of Nigeria within which a defendant resident outside the State of origin of the summons is required to answer before the court;

(c) was signed and sealed without leave of court when it was meant for service outside the jurisdiction of the court.” .

The learned trial Judge in her ruling, affirmed the submission of the appellant’s counsel, Mr. Theodore Ezeobi, that it was correct that the writ in this action was not endorsed as was required by Section 97 of Sheriffs and Civil Process Act. Also, the period between the date of service and the date when the appellant was required to appear in answer to the writ was not up to thirty days which was the minimum period required by the law. The learned Judge referred to the case of Skenconsult (Nig.) Ltd v. Ukey (1981) 1 S.C.6 and Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195: (1985) 2 S.C 260 and held that what had been decided in those cases is that failure to comply with section 99 of the Sheriffs and Civil Process Act means that there has been no service and that all the proceedings thereafter are a nullity. The writ itself was not declared a nullity, She concluded her ruling thus:

“As the failure to obtain leave or to allow the required 30 days before appearance of the defendant goes to invalidate the service of the writ on the 8th defendant/applicant,the service is set aside as a nullity and the 8th defendant remains unserved. This being so, there is nothing to call back as there is a return to the status quo ante and it is as if the writ has never left the registry. There is therefore no readily apparent reason why it cannot be properly endorsed and dispatched for service in the appropriate manner. For the above reasons therefore, this application fails but service of the writ of summons on the 8th defendant, NEPA .. is hereby set aside.”

Dissatisfied with the decision the learned counsel for the appellant went before the Court of Appeal on three grounds of appeal. He formulated the following issues in that court for the determination of the appeal:

“1. Whether in view of the decisions of the Supreme Court in Skenconsult (Nig.) Ltd & Anor. v. Godwin Sekondy Ukey (1981) 1 S.C. 6 of the Court of Appeal in NNPC v. Jacoh Aziegbehin unreported FCA/109/83 of 29/3/84 and U.B.A. Trustees Ltd. & Anor v. Nigergrob Ceramic Ltd (1987)3 NWLR (Pt.62) 600 at 615, 617 and 620, each definitely binding on the learned trial Judge, she was right or entitled to hold in effect that the provisions of SS.97 and 99 of the Sheriffs and Civil Process Act Cap 189 of the Laws of Federation, 1958 are not mandatory and that failure to comply with them in this case did render the affected writ of summons fundamentally defective and nullity.

2. Whether the learned trial Judge was right in holding that the effect of failure to obtain leave of the court or a Judge before signing and sealing a writ of summons to be served out of jurisdiction pursuant to Order 2 Rule 16 of the High Court (Civil Procedure) Rules of Bendel State is merely to invalidate the service of but not the writ of summons itself.”

In its judgment, the Court of Appeal. per Isa Ayo Salami, JCA ..,with which Ndoma Egba and Ejiwunmi. JJCA., concurred, reviewed the judgments in Skenconsult and Ezomo (supra) and the decisions of the Court of Appeal in NNPC v. Jacob Aziegbehin FCA/B/109/83 (unreported but delivered on 24/3/84) and UBA Trustees Ltd. and Anor v. Nigergrob Ceramic Ltd (1987) 3 NWLR (Pt. 62) 600. The learned justice reproduced an excerpt from the judgment of Nnamani J.S.C. in Skenconsult (Nig.) Ltd v. Ukey (Supra) and held that this court, in that case, did not pronounce the writ of summons a nullity. What it did was to set aside the service and any order made in consequence thereof for non-compliance with Section 99 of the Sheriffs and Civil Process Act. The learned justice went further and said:

“The writ in the instant case although it is not endorsed and served properly, has properly commenced this action and it so remains until it is set aside.”