Effect of Order of Substituted Service on Marking Processes for Service Out of Jurisdiction

“The trial Court had an option to grant the first Respondent’s prayer for substituted service, before any attempt was made to effect personal service on the Appellant or not. It opted to grant the prayer and the effect thereof, is that the said Originating Summons, which had not been marked as “concurrent” did not require to be so marked, because by the said order issued, the process was to be served within jurisdiction and it was so served” In the Supreme Court of Nigeria Holden at Abuja On Friday, the 28th Day of April, 2017 Before Their Lordships Ibrahim Tanko Muhammad Mary Ukaego Peter-Odili Kumai Bayang Aka’ahs Amina Adamu Augie Paul Adamu Galinje Justices, Supreme Court SC.433/2015 Between Hussaini Isa Zakirai……. Appellant And

1. Salisu Dan Azumi Muhammad
2. All Progressive Congress (APC)
3. Independent National Electoral Commission (INEC)
4. Alhaji Umar Haruna Doguwa…………..Respondent

Lead Judgement delivered by Hon. Amina Adamu Augie, JSC FACTS The 1st Respondent commenced the suit by way of Originating Summons before the Federal High Court, seeking inter alia, a declaration that he was the rightful candidate of the 2nd Respondent to represent the Gbasawa Constituency of the Kano State House of Assembly in the general election scheduled to hold on 28th February, 2015. He posited that he won the primary election, and was entitled to be so recognised by the 3rd Respondent. The Originating Summons was filed on 5th February 2015, and the addresses endorsed thereon for service on the 2nd and 3rd Respondents were in Abuja. However, on the same date, the 1st Respondent sought and was granted leave to serve the parties by substituted means – the Appellant, 2nd and 4th Respondents through a particular Haruna Falali, a Legal Adviser in the Kano Branch of the 2nd Respondent (APC) and the 3rd Respondent (INEC) through its office situated in Kano State. Upon being served, the 2nd and 4th Respondents entered Unconditional appearances, while the Appellant and 3rd Respondent entered Conditional appearances. The 2nd, 3rd and 4th Respondents also filed Counter-affidavits to the Originating Summons. Thereafter, the Appellant filed a notice of Preliminary Objection, challenging the competence of the suit, on the ground that the Originating Summons was not endorsed or marked for service outside jurisdiction as required by the Sheriff and Civil Process Act. The Preliminary Objection was taken together with the substantive suit. In its judgement, the trial Court held that with the intervening Order of substituted service made by the Court before the service of the Originating Summons outside jurisdiction, the requirement for endorsement of the process for service outside jurisdiction was rendered unnecessary. The Court also held that service was properly effected in Kano State within jurisdiction. As regards the substantive suit, the Court granted all the reliefs sought by the 1st Respondent. Dissatisfied, the Appellant appealed to the Court of Appeal; the 2nd Respondent also cross-appealed against part of the decision. The Court of Appeal dismissed the Appellant’s appeal but allowed the 1st Respondent’s cross-appeal. Thereafter, the Appellant filed a further appeal to the Supreme Court. Issues for Determination

1. Whether the lower court was right to have held that leave to issue, leave to serve and leave to mark the Originating Summons for service outside jurisdiction are unnecessary, not mandatory, waived by the 2nd and 3rd Respondents and cannot be raised by the Appellant at all.
2. Whether the lower court rightly held that the issue of substituted service and personal service was not raised both at the trial court and before the lower court, and indeed the issue of service is not real.
3. Whether the lower court rightly ignored the failure to mark the summons as “concurrent” and trial court’s non-consideration of the “Further and Better Counter Affidavit in this suit”.
4. Whether the lower court was right to hold that the Federal High Court was competent to assume jurisdiction in this case. 5. Whether, in the circumstances of this case, the suit was rightly commenced by Originating Summons and the lower court rightly found on the affidavit before it, including issues of forgery.

Arguments On the 1st and 3rd issues, the Appellant argued that a comparison of Order 6 Rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000 which provided for leave to serve and Order 6 Rules 13-17(1) of the 2009 Rules which only provides for leave to issue, shows that though the provisions are not in the same language, their meanings and intendments are the same, that leave is required to serve outside jurisdiction. The Appellant contended that leave to issue and serve are both coterminous, mandatory, and are conditions precedent to the exercise of the trial court’s jurisdiction on the Defendants whose addresses for service were originally in Abuja, outside the court’s jurisdiction. He further submitted that, the parties cannot waive the non-compliance with the statutory provision for endorsement of a writ to be served outside jurisdiction. Conversely, the 1st Respondent argued that so long as the Federal High Court (Civil Procedure) Rules 2009 does not make any provision for leave to issue a writ for service outside jurisdiction, any attempt by the Appellant to make leave to issue a mandatory requirement, will amount to imposing an obligation on him which the Rules of Court and other enabling statutes never imposed. He argued that Section 97 of the Sheriff and Civil Process Act only applies to Defendants who reside outside jurisdiction, and that where a party is served within jurisdiction or even where he is served outside jurisdiction without the requisite endorsement, and he waives his right to challenge the procedure, he will not be heard later to complain. The 1st Respondent also submitted that the Appellant lacked the locus standi to challenge the order of the trial court ordering substituted service on the 2nd and 3rd Respondents. The 2nd Respondent aligned itself with the reasoning of the 1st Respondent. On the 2nd issue, the Appellant admitted that the issue of substituted service was not clearly raised and attributed it to an error in typing. He, however, submitted that it was raised in the Preliminary Objection, argued before the trial Court and that Ground (a) of the Notice of preliminary objection was concluded with “and service of the process rules”. The 1st Respondent insisted that the 2nd and 3rd Respondents did not file any Notice of Appeal against the Order of substituted service and had in fact, submitted to the jurisdiction of the Court. On the 4th issue, the Appellant contended that although any aspirant who complains that any provision of the Electoral Act has been contravened may seek redress at the State High Court or Federal High Court, such a complaint must come within the narrow compass that the political party conducted a primary election which he or she was an aspirant, in breach of the Electoral Act or the party’s election guidelines. He submitted that the Federal High Court lacked the jurisdiction to entertain the suit, because the real question was whether there was any primary election at all. The 1st and 2nd Respondents submitted that the Federal High Court had the requisite jurisdiction to entertain the suit. On the 5th issue, the Appellant contended that based on the issues raised before the trial Court which included allegations of forgery, there was need for oral evidence in order to resolve the contradictions in the affidavit evidence before the trial Court. The Appellant submitted that the action was therefore, wrongly commenced by Originating Summons. The 1st Respondent argued that there had not been a successful challenge to the case of the 1st Respondent, to warrant the calling of oral evidence and the suit was rightly commenced by Originating Summons. The 2nd Respondent aligned itself with the 1st Respondent’s position. Court’s Judgement and Rationale On the 1st and 3rd issues, the Supreme Court held that Rules of Courts are not static and they change as the society changes, and the legal issues become more complex. Although the Federal High Court (Civil Procedure) Rules, 2000 may have stipulated that no Writ for service outside jurisdiction can be issued except by leave of Court, there was no such provision in the 2009 Rules. The Court held that the Appellant cannot bring in a rule of practice to override the provisions of the 2009 Rules. On the endorsement of the said processes, Their Lordships referred to ORDER 6 RULE 5(A)–(E) OF THE 2009 RULES to hold that the trial Court may Order substituted service either after or without an attempt at personal service. The trial court had an option to grant the 1st Respondent’s prayer for substituted service before any attempt was made to effect personal service on the Appellant and opted to grant that prayer, the effect of which was that the said originating summons which had not been marked as “concurrent” did not require to be so marked because by the Order of the court, the processes were to be served within jurisdiction. Further, the Appellant’s objection at the trial Court was in relation to procedural jurisdiction of the Court, which can be waived by parties as opposed to the Constitutional or Statutory jurisdiction of the Court. The Appellant entered conditional appearance and also filed a Counter-affidavit which meant that he had waived the irregularity he complained of, and submitted to the jurisdiction of the Court. The Appellant was, in fact, not affected by the issue of service within jurisdiction and thus, had no basis for bringing the objection in the first place. On the second issue, the Court relied on its decision in BABATUNDE v OLATUNDE (2002) 2 NWLR (PT. 646) 568 to hold that Orders of Court are deemed valid and binding until set aside by the same court or an appellate court. The Order of substituted service made by the trial Court having not been challenged on appeal, cannot be properly raised at the stage it was raised before the Court of Appeal or before the Supreme Court. On the fourth issue, their Lordships held that it is the Plaintiff’s claim that determines the jurisdiction of Court. By Section 87(10) of the Electoral Act, 2010 (as amended), an aspirant who complains that any of the provisions of the Act and the guidelines of a political party has not been complied within the selection or nomination of a candidate, may apply to the Federal High Court or the State High Court for redress. Thus, the Federal High Court rightly exercised jurisdiction to entertain the suit. On the 5th issue, the Court held that, an Originating Summons is a procedure wherein the evidence is mainly by way of documents, and is used where there is no serious dispute in the facts before the Court. From the materials before the Court, there was no conflict in the affidavit evidence, to justify the need to commence by other means other than Originating Summons. Appeal Dismissed Representation: Nureini Jimoh Esq. and others for the Appellant. Usman Umar Fari Esq and others for the 1st Respondent. R. A. O. Adegoke Esq, and others for the 2nd Respondent. Y. A. Kadiri, Esq. and another for the 3rd Respondent. O. Ben Umar and others for the 4th Respondent. Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))]]>