By C.K. ANYANWU, LL.M. KELECHI ONYEKWERE, ESQ. P.N. VITALIS, ESQ. C.K. EZEAKU, ESQ. J.B. JOSHUA (MISS)
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INTRODUCTION
The issue of service of court processes is closely connected with the jurisdiction of a court. Where the law requires a particular procedure to be followed before an originating process can be served, failure to comply with that procedure may give the defendant a basis to challenge the service or, in some circumstances, the competence of the action itself. Sections 97, 98 and 99 of the Sheriffs and Civil Process Act have generated considerable litigation, particularly in cases where a writ or other originating process is issued in one State and served in another. Over the years, the courts have taken different approaches to the effect of non-compliance with these provisions. While some earlier decisions treated such defects as fundamental and capable of rendering the process and service a nullity, later decisions have recognised that, in appropriate circumstances, a defendant may waive the defect by taking further steps in the proceedings.
This piece considers the modern view of the law on service of court processes outside jurisdiction and instances where Sections 97 and 98 of the Sheriffs and Civil Process Act do not apply.
BRIEF HISTORICAL BACKGROUND
In the past, the courts took a very rigid stance. If a plaintiff failed to strictly follow the rules in Sections 97 and 98 of the Sheriffs and Civil Process Act, the court considered the entire lawsuit dead on arrival.
For instance, in Ogunmola v. Kida (2001) 12 NWLR (Pt. 726) 93 C.A., the Court of Appeal held that non-compliance with the Sheriffs and Civil Process Act, especially Section 97, completely stripped the court of its jurisdiction, rendering both the writ of summons and its service an absolute nullity.
Similarly, in N.N.P.C. v. Elumah (1997) 3 NWLR (Pt. 492) 195 C.A., the court stated that failure to comply with these rules makes the writ “unentertainable until the error is rectified.” The court maintained that a trial judge was entitled to strike out such an action because, without due process, the High Court lacks the constitutional power to hear the case.
CONDITION PRECEDENT TO SERVICE OF WRIT OUTSIDE JURISDICTION
By virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summons for service 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 the Capital Territory, have endorsed thereon a notice to the effect that the writ is to be served out of the State. Apart from the mandatory nature of the section, the writ is incomplete without the required statutory endorsement. Such endorsement is part and parcel of the writ and, without it, it is both defective and incompetent. The endorsement is not a procedural requirement that could be treated as an irregularity capable of being cured by the court’s Registrar.
See: Ezeobi v. Abang (2000) 9 NWLR (Pt. 672) 230 C.A.
Furthermore, in Izeze v. I.N.E.C. (2018) 11 NWLR (Pt. 1629) 110 S.C., the court held as follows:
To properly raise the issue of non-compliance with the provisions of Sections 97, 98 and 99 of the Sheriffs and Civil Process Act, there must be clear evidence that the originating process was not endorsed for service outside the jurisdiction of the court as required by Section 97. There must be evidence that the defendant was required to appear in court within a period of less than 30 days after service. Since there was non-compliance with Section 97, compliance with Sections 98 and 99 no longer arises. The amended originating summons was irredeemable, worthless and invalid. (Pp. 128–129, paras. H–A)
EFFECT OF NON-COMPLIANCE
In Izeze v. I.N.E.C. (2018) 11 NWLR (Pt. 1629) 110 S.C., the apex court held:
I must say that having closely studied the said judgment, I find myself in total agreement that right from the outset, the trial court is devoid of jurisdiction to determine the suit filed before it due to failure by the plaintiff in the suit to comply with the provisions of Section 97 of the Sheriffs and Civil Process Act. To that extent, the trial court rightly declined jurisdiction to adjudicate on the matter. It would appear to me that when the amended originating summons was filed, there was no prior compliance with the provisions of Section 97 of the Sheriffs and Civil Process Act. The Act has mandatorily provided that the said process, which is the one that triggered the action, must be endorsed. That was not done as it relates to the amended originating summons, even though same was to be served outside the jurisdiction of the trial court.
MODERN VIEW OF THE LAW
Today, the law has shifted towards a more forgiving and practical stance. The Supreme Court realised that treating every procedural mistake as an absolute nullity allowed defendants to exploit the system. The current position of the law is that defective service is not “void” (i.e., completely dead and incurable), but rather “voidable” (valid until the affected party complains and asks the court to set it aside).
This modern principle was clearly stated in Broad Bank (Nig.) Ltd. v. Alh. S. Olayiwola Sons Ltd. (2001) 6 NWLR (Pt. 710) 742 C.A. The court ruled that any defect in the service of a writ, such as failure to obtain leave of court to serve out of jurisdiction, renders the service voidable. A defendant who complains about this is entitled to have the service set aside, provided he has not taken any further steps in the matter that would amount to accepting the irregularity.
See also: P.D.P. v. Uche (2023) 9 NWLR (Pt. 1890) 523 S.C.
OPTION OPEN TO A DEFENDANT SERVED WITH COURT PROCESS IN BREACH OF SECTIONS 97 AND 98 OF THE SHERIFFS AND CIVIL PROCESS ACT
Where a defendant is served with a writ of summons in breach of Section 97 or 99 of the Sheriffs and Civil Process Act, he has a choice of two options, either:
(a) to object to the service by applying to have the writ set aside, and the court ex debito justitiae will accede to the application; or
(b) to ignore the defect and proceed to take steps in the matter; where he chooses to take this course, the application to set aside must be refused.
See: Ezeobi v. Abang (2000) 9 NWLR (Pt. 672) 230 C.A.
THE EFFECT OF WAIVER IN RELATION TO NON-COMPLIANCE
It is interesting to note that because defective service is merely voidable, a defendant must complain immediately. If the defendant ignores the defect, files a defence and participates in the trial, the law assumes that he has “waived” his right to complain.
The extensive history of this principle was beautifully summarised in Atunrase v. Aiyegbusi (2019) LPELR-48064(CA). The Court of Appeal traced the evolution of the law from the strict days of Skenconsult v. Ukey (1981) 1 SC 1 to the current regime established in Odu’a Investment Co. Ltd. v. Talabi, concluding that if a defendant realises that the court processes were wrongly served but still elects to proceed with the case, files a statement of defence and calls evidence, it becomes “too late in the day” to complain.
In the same vein, in Odua Invest. Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1 S.C., the court held that non-compliance with Sections 97 and 99 of the Sheriffs and Civil Process Act is a mere irregularity which can be cured or waived.
This position is firmly backed by the Supreme Court. In JULIUS BERGER (NIG.) PLC v. ALMIGHTY PROJECTS INNOVATIVE LTD & ANOR (2021) LPELR-56611(SC), Kekere-Ekun, JSC, held as follows:
“There is a plethora of decisions of this Court to the effect that such objection must be raised timeously and before the party complaining has taken further steps in the matter, otherwise the party would be deemed to have waived the irregularity… Having entered an unconditional appearance to the suit and taken other steps in the defence of the action, the appellant is estopped from complaining about the alleged non-compliance.”
Other notable cases reinforcing this principle include Miti v. N.N.B. Plc (1997) 3 NWLR (Pt. 496) 737 C.A. and U.B.R.B.D.A. v. Alka (1998) 2 NWLR (Pt. 537) 328 C.A., where the courts held that a defendant who files pleadings and contests the matter on its merits has waived the defect.
Conversely, while the court in the earlier decision of U.B.A. Trustees Ltd. v. Nigergrob Ceramic Ltd. (1987) 3 NWLR (Pt. 62) C.A. suggested that waivers must be express and cannot be implied, subsequent Supreme Court decisions have overwhelmingly established that taking steps in a trial does constitute an implied waiver by conduct.
EXCEPTIONS TO THE RULE
There are two significant scenarios where the strict rules of the Sheriffs and Civil Process Act do not apply at all.
1. The Federal High Court
For many years, lawyers argued over whether the Federal High Court, a national court, needed to follow these cross-border rules when serving court processes from one State to another within Nigeria. The Supreme Court finally put this to rest in the landmark recent case of Noble Drilling (Nig.) Ltd. v. NIMASA (2026) 14 NWLR (Pt. 2059) 1 S.C. In the instant case, the apex court clarified that Sections 97 and 98 do not govern the service of originating processes issued by the Federal High Court for service within Nigeria’s territory. The court noted that its earlier decision to the contrary in Owners of MV Arabella v. NAIC was an “interpretive misstep.” Therefore, an originating summons issued by the Federal High Court and served anywhere in Nigeria does not require a Section 97 endorsement or prior leave of court.
Referring to the case of ENANG v. ASUQUO & ORS (2023) LPELR-60042(SC), in the instant case, the appellant’s Issue 1 was conceded by the respondents, having regard to the extant position of the law as espoused by this Court in recent decisions to the effect that the provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act do not apply to the service of originating processes in the Federal High Court. See: SC/CV/1402/2022: PDP v. Engr. John Ibrahim Uche & 2 Ors. (unreported), delivered on 6th January 2023, and SC/CV/1482/2022: Hon. Olobatoke Segun Samuel v. APC & 2 Ors. (unreported), delivered on 13th January 2023.
Furthermore, the apex court explained what it means to serve a court process outside jurisdiction. By virtue of Section 18(1) of the Interpretation Act, a subsidiary legislation has the force of law. And where valid subsidiary legislation provides an internal definition of an operative term, the court does not resort to external statutes for definitions. Rather, the internal definition controls.
In this case, the Federal High Court Rules are made by the Chief Judge of the Federal High Court pursuant to Section 44 of the Federal High Court Act and Section 254 of the Constitution. Under Order 13 Rule 31 of the Federal High Court (Civil Procedure) Rules 2000 [Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules 2009], “out of jurisdiction” is defined to mean “out of the Federal Republic of Nigeria”.
Since the Rules made pursuant to the Constitution and an Act of the National Assembly expressly define “out of jurisdiction”, the court is bound to give effect to that expression. So, the Sheriffs and Civil Process Act definition regime, which applies to entirely different courts, cannot override the specific procedural rules crafted for the Federal High Court. See: Noble Drilling (Nig.) Ltd. v. NIMASA (2026) 14 NWLR (Pt. 2059) 1 S.C.
2. Fundamental Rights Enforcement
When a person’s basic human rights are at stake, the courts prioritise speed and justice over procedural technicalities. In Cornelius & Anor v. Nwajah & Ors (2021) LPELR-55357(CA), the Court of Appeal ruled that the provisions of Sections 97 and 98 of the Sheriffs and Civil Process Act do not apply to applications for the enforcement of fundamental rights.
Equally important, in IGP & ORS v. OMAGBEOSA (2024) LPELR-61927(CA), the court held:
“I agree that Sections 97, 98 and 99 of the Sheriffs and Civil Process Act are not applicable to fundamental rights enforcement proceedings.”
Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA (P. 18, para. A).
CONCLUSION
The rules governing the service of court processes across State lines in Nigeria are designed to ensure fairness, giving defendants adequate notice when sued in a different State. However, the law has advanced to ensure that these rules are not used as a trap to defeat justice.
Today, if a claimant makes a mistake under the Sheriffs and Civil Process Act, the court processes are voidable, not completely void. The burden is on the defendant to raise an objection immediately. If the defendant participates in the trial, he loses the right to complain.
Furthermore, litigants must remember that these rules are entirely bypassed if they are litigating in the Federal High Court or seeking the enforcement of their fundamental rights. For lawyers and litigants alike, the ultimate lesson is clear: object early or be prepared to face the merits of the case.
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