Originating Process In Federal High Court Needs Not Comply With Sections 96, 97, And 97 Of Sheriffs And Civil Process Act

The Appellant is a member of SDP, a political party. He contested the primary election of SDP held on 1/10/2018 (the defendant said 3/10/2018 instead) for the selection of its candidate to contest for the position of Governor of Benue State in the general election scheduled to hold in February, 2019.

According to him, he contested against two other candidates and emerged the winner having won the highest number of votes casted. He, later on, heard that his name was substituted with that of the 3rd respondent who did not take part in the primary election. Aggrieved by the turn of events, the Appellant as plaintiff took out an originating summons at the Federal High Court. After hearing counsel on all sides, the trial Court found in favour of the Plaintiff and granted the reliefs sought by him. Aggrieved by the decision, the SDP appealed to the Court of Appeal. Court of Appeal upturned the decision of the trial court. Aggrieved by the decision of the Court of Appeal, the Appellant appealed while the 1^st Respondent cross-appealed to the Supreme Court.

THE CROSS APEAL

The grouse of the Cross-Appellant, SDP, among others was that the action was statute barred having been commenced outside 14 days required by section 285(9) of the constitution. The party (Cross-Appellant) argued that the lower court was wrong with it held that cause of action arose on the 6^th of November, 2018. That the cause of action arose on the 8^th of November, 2018 instead

The court of appeal disagreed with the Cross-Appellant and held that the bar envisaged by section 285(9) of the constitution is not the date of the occurrence of the event, decision or action complained of but the date of discovery and in the instant case the substitution of the Appellant’s candidature was not communicated to him prior to 6/11/2018 even though he got wind that his substitution was done on 3/11/2018 and he took out the originating summons on 8/11/2018. The date of cause of action was therefore the date when the name of the appellant was substituted, not the date when the result of the primaries.

THE MAIN APPEAL

The main issue for the determination of the appeal was whether failure to mark the originating summons as “concurrent” by the registrar of the court was capable of voiding the originating process. The lower court relied on the case of Odu’a Investment Co. Ltd. V. talabi (19970 10 NWLR (pt. 523) 1 and set aside the originating summons because it was not marked as a concurrent writ.

The 1^st respondent argued that sections 96, 97, and 98 of the Sheriffs and Civil Process Act was made by the National Assembly by virtue of Item 57 of the Exclusive Legislative List, Part 1 of the Second Schedule to the Constitution which provides that:

“Service and execution in a State of the Civil and Criminal processes, judgments, decrees, orders and other decisions of any Court of law outside Nigeria or any Court of law in Nigeria other than Court of law established by the House of Assembly of that State.”

The respondent counsel referred to the preamble of the Sheriff and Civil Process Act where it would appear that the Act is applicable to all the courts in Nigeria but argued that preamble is not part of the operative part of the statute and will only be resorted to in cases of ambiguity in the substantive provision of the statute. That in this case there was no ambiguity in the provisions of the Sheriffs and Civil Process Act to warrant resort to the preamble.

He argued further the Federal High Court Rules is not subject to the provisions of the Sheriffs and Civil Process Act because the Federal High Court Rules are made pursuant to section 254 of the Constitution which provides that;

“Subject to the provisions of any Act of the National Assembly, the Chief Judge of the Federal High Court may make rules for regulating the practice and procedure of the Federal High Court”

The Supreme Court held that Odu’a Investment Co. Ltd. V. talabi (1997) 10 NWLR (pt. 523) 1 upon which the court of appeal based its decision to nullify the writ is distinguishable from this case. In that case the respondent instituted an action against the appellant and one other person in the High Court of Lagos and the defendant was served in Ibadan, outside the territory of Lagos. There was no endorsement on the writ as required by section 19 Sheriffs and Civil Process Act and the period within which the defendant may enter appearance was stated to be 8 days and no leave of court was sought for service outside jurisdiction.

The submission by counsel for the 1^st respondent/cross-appellant that the principal legislation that deals with service of court processes of any court in Nigeria is the Sheriffs and Civil Process Act is therefore not correct as it relates to the Federal High Court. It is only true of the State High Courts and the FCT High Courts because their jurisdiction is circumscribed by the territory each state occupies and the Federal Capital Territory. The service of any process issued by the Federal High Court can be issued under the Sheriffs and Civil Process Act, if such is to be executed outside the territory of Nigeria. Order 6 rule 31 of the Federal High Court Rules interprets outside jurisdiction to mean outside the federal republic of Nigeria. Thus to hold that an Originating Summons which was issued out of the registry of the Federal High Court, Warri which was addressed for service at Abuja outside Delta state where the originating summons was issued from should be nullified because it did not comply with section 97 of the Sheriff And Civil Process Act as this court did in Izeze V INEC (2018) (pt. 1629)110 at 132 did not take cognizance of section 19 of the Act and Order 6 Rule 31. I am of the considered view that the originating summons issued by the Federal Court , Makurdi which is to be served in Abuja cannot be considered to be service outside jurisdiction and therefore does not require to be endorsed as a concurrent writ

The Court set aside the decision of the Court of Appeal and restored the decision of the trial court.

Appearances
T.D. Pepe, Esq. with T. Azoom, Esq. for the Appellant/Cross-Respondent
S. Aruwa, Esq. with him Messrs P. T. Soje, E. E. Mmeni, M. I. Balogun and A. I. Idris for 1st Respondent/Cross-Appeallant
AyoolaAjayi, Esq for 2nd Respondent
O. Ogundiran, Esqfor 3rd Respondent For Respondent(s)

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