Raising The Issue Of Irregularity In Service Of Originating Processes On Appeal

In the Supreme Court of Nigeria

Holden at Abuja

On Tuesday, the 10th day of December, 2021

Before Their Lordships

Mary Ukaego Peter-Odili

Kudirat Motonmori Olatokunbo Kekere-Ekun

Ejembi Eko

Mohammed Lawal Garba

Emmanuel Akomaye Agim

Justices, Supreme Court

SC./461/2018

Between

Julius Berger Nig. Plc Appellant

And

1. Almighty Projects Innovative Ltd

2. Friday Obonoh Respondents

“The courts have held consistently that where a party had participated in the hearing of a substantive dispute, he cannot be heard to complain subsequently to raise an objection on appeal to non-compliance with the rules of procedure. Having acquiesced in the validity of the procedure by which the trial proceeded; he would not be permitted to contend otherwise at the appeal stage.”

(Lead Judgement delivered by Honourable Ejembi Eko, JSC)

Fact

The Akwa Ibom State Government had awarded to the Appellant, a contract for the construction of Uyo Master Plan Drainage System. The Respondents were sub-contracted to undertake environmental impact assessment, by the Appellant. The Respondents alleged that despite the fact that the projects had been duly completed and the said contract sum released to the Appellant for payment to the Respondents, the Appellant still failed to remit the contract sum of N230,000,000 to the Respondents.

Further to the above, the Respondents commenced a suit against the Appellant under the Undefended List Procedure at the High Court of Akwa Ibom State, sitting at Uyo. The Appellant was represented at the proceeding, though the originating processes were served on it by substituted means. The Appellant, through its counsel, entered a conditional appearance to contest the suit, and subsequently filed its Notice of Intention to Defend the suit. The Appellant’s counsel provided a personal address for service in Port Harcourt, Rivers State, and an address for service within the jurisdiction of court.

The trial court considered the claims and defence in the affidavit in support of the Notice of Intention to Defend the suit, filed by the Appellant. In its decision, the court found the Appellant liable to the claims of the Respondents. The Appellant, who felt aggrieved by the decision of the trial court, filed an appeal to the Court of Appeal, which court upheld the decision of the trial court. The Appellant then appealed to the Supreme Court.

At the Supreme Court, the Appellant raised for the first time, the issue of non-compliance by the Respondents with Sections 97 and 98 of the Sheriffs and Civil Process Act, on service of the originating processes on the Appellant outside the jurisdiction of court. It therefore, challenged the jurisdiction of the trial court to assume jurisdiction to determine the suit.

Issues for Determination

The following two issues were considered and determined by the court:

1. “Whether the Court of Appeal was in error in affirming the Ruling of the trial court, irrespective of the fact that the 2nd Respondent (2nd Plaintiff) did not show sufficient interest in the subject-matter leading to the appeal to afford him locus standi to prosecute the suit.

2. Whether the Court of Appeal was in error when it assumed jurisdiction to hear and determine the appeal when ex-facie, the originating process did not comply with the mandatory provisions of Section 97 and 98 of the Sheriffs and Civil Process Act.

Arguments

Submitting on issue one, counsel for the Appellant contended that there is no where in the supporting affidavit as well as the exhibits attached, where the 2nd Respondent disclosed any interest which is personal to him. Counsel argued that the 1st Respondent is shown on the Writ of Summons to be a limited liability corporate entity, and so is clothed with juristic personality capable of suing and being sued in its name. Counsel submitted further that the 2nd Respondent, having confessed himself as a Director of the 1st Respondent, had no separate legal interest in the res or subject-matter of this appeal, and thus, bereft of locus standi. He relied on SALOMON v SALOMON & CO. (1879) AC 22 in support of this submission. Counsel argued that, the jurisdiction of the trial court was ousted by the lack of locus standi on the part of the 2nd Respondent. In response, counsel for the Respondents submitted that the issue of lack of locus standi of the 2nd Respondent was not raised and pronounced upon at the court below, and there being no prior leave to raise it at the Supreme Court, the court cannot entertain it. Counsel relied on BABALOLA v STATE (1989) 4 NWLR (Pt. 115) 264.

On issue two, it was argued for the Appellant that by virtue of Section 97 of the Sheriffs and Civil Process Act, every Writ of Summons for service outside the jurisdiction of the issuing court requires a mandatory endorsement; and so, in the instant case, where the Writ of Summons issued in the High Court of Akwa Ibom State was served in Abuja, carrying no endorsement for service out of jurisdiction, the jurisdiction of the trial court was thereby, ousted. Counsel relied on the authority of MR “ARABELLA” NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) NWLR (Pt. 1097). Responding, Counsel for the Respondents submitted that the failure to have the endorsement made on the Writ is an irregularity, which the Appellant, by filing her Notice of Intention to defend the suit and fully participating at the trial, waived the irregularity.

Court’s Judgement and Rationale

On the first issue, the Supreme Court held that the issue is clearly new, as it was being raised for the first time at the Supreme Court and without leave of court. It therefore ought to be discountenanced as an issue that lacks competence, and should be struck out – B & C (NIG) LTD v OKAFOR- UDEJI (2018) LRCN Vol. 282. The court however, went further to consider this issue on the merit, and held that the 2nd Respondent is a Director of the 1st Respondent and had the authorisation of the 1st Respondent to initiate the suit on her behalf; thus, the question of interest of 2nd Respondent crops up. This is because for someone to have locus standi in bringing an action, he must show that he has sufficient interest in the matter. In the determination of locus standi, the Writ of Summons/Statement of Claim filed by the Claimant is germane -ADESOKAN v ADEGOROLU (1993) 3 NWLR (Pt. 179) 307. In the instant case, the Respondents disclosed sufficient interest of the 2nd Respondent to be joined as a party in the suit. The 2nd Respondent is the Managing Director of the 1st Respondent, with his role on display in the affidavit pointing at the interest which conferred on him legal capacity to sue and be heard in court.

Still on the first issue, their Lordships held that an action cannot be defeated by the misjoinder or nonjoinder of parties. If the presence of the 2nd Respondent in this suit is but a misjoinder as canvassed by the Appellant, it does not rob the court of its jurisdiction, rather the Court may in every cause or matter deal with the matter in controversy, so far as regards the rights and interest of the parties before it – SAPO & ANOR v SWIMONU (2010) LPELR-3015 (SC). It follows that the suit was properly instituted at the trial court which had exercised its jurisdiction, and the court below was correct to entertain the appeal.

In deciding issue two, the Supreme Court held that it is not in dispute that the Appellant, through its counsel, had unconditionally submitted to the jurisdiction of the trial court upon service of the Writ of Summons on it. The Appellant had every legal right to have objected to the defective service as it did now; predicating the objection under Sections 97 and 99 of the Sheriffs and Civil Process Act. However, the acknowledgment that the service of the originating process on the Appellant was by substituted means, presupposes that the Appellant was served within the jurisdiction of the trial court. In ADEGOKE MOTORS LTD v. ADESANYA (1989) 3 NWLR (Pt. 91) 664, a distinction was made between the issuance and service of the civil process of court. It was made clear that the issuance of a civil process may be another thing, though the two are inter-related steps in civil litigation. A Writ may be valid, while its service may suffer some defect. Consequently, where a Writ of Summons was regularly issued but the service of the same is defective, what ought to be set aside is the service of the process. The party not properly served a process of court, has a right to have the service set aside. He can also waive that right, and proceed to submit to the jurisdiction of the court consequent upon the allegedly defective service. It is an issue of estoppel by conduct – ARIORI v ELEMO (1983) All NLR 1; Section 169 of the Evidence Act. On this statutory principle the courts have held consistently that where a party had participated in the hearing of the substantive dispute, he cannot be heard to complain subsequently to raise an objection on appeal to non-compliance with the rules of procedure. Having acquiesced in the validity of the procedure by which the trial proceeded; he would not be permitted to contend otherwise at the appeal stage – ADENE v DANTUNBU (1994) 2 NWLR (Pt. 328) 509. This court has been quite consistent in holding that an objection to procedural irregularity must be taken at the commencement of the proceedings, or at the time the irregularity arises. It is in the interest of justice, considered too late or belated for the party raising the objection to do so having taken steps in the proceedings aware of irregularity – SKENCONSULT (NIG) LTD v UKEY (1981) 1 SC 6; EZEMO v OYAKHIRE (1985) 1 NWLR (Pt. 2) 195.

The Appellant in this case, is caught in the similar web, and having taken steps after service, is estopped from complaining about the defective service. It has waived its legal right to object to the service – ARIORI v ELEMO (supra).

Appeal Dismissed.

Representation

Ikoro N.A. Ikoro with Olatunde O. Emmanuel, Afolabi and Tobechukwu Eze for the Appellant.

Solomon Umoh, SAN with Obinna Mbata, Abasiodiona Ekpenyong, F. Ukpah and O.I. Ishola for the Respondents.

Reported by Optimum Publishers Limited, Publishers of Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)