Effect of non-compliance
MV Arabella – volte face by Supreme Court?
Service of court processes is regulated by the rules of court and the Sheriffs and Civil Process Act,(1) a federal enactment. Section 96 of the Sheriffs and Civil Process Act provides that a writ of summons issued out of – or requiring the defendant to appear at – any court in any state (including the Federal Capital Territory) may be served on the defendant in any other state. It also provides that such service may be effected, subject to the rules of court, in the same manner as if the writ had been served on the defendant in the state in which it was issued.
Under the 2009 rules of the Federal High Court, leave of court is required for service of a writ of summons and may be granted by the judge in chambers.(2) However, while the requirement to seek leave leaves no room for argument regarding originating processes issued under the civil procedure rules of the state high courts, the position of the Federal High Court has been unclear in this regard.
The uncertainty has arisen out of differences of opinion among lawyers – and even judges – over the effect that the unitary administrative set-up of the Federal High Court (which was established as one federal court with administrative divisions) has on the requirement for leave. While some have argued that the requirement for leave should not apply to the Federal High Court, because it is in reality one court with jurisdiction over the entire federation and under one administrative head (the chief judge),(3) others have argued that so long as an originating process is to be served outside of the state of issuance, the requirement to seek leave also applies to processes issued out of the Federal High Court.
A review of relevant cases demonstrates the apparent confusion regarding the effect of non-compliance with these mandatory requirements.
In Skenconslt v Ukey(4) a writ of summons that was dated November 13 1978 and issued in Bendel State was served on defendants in Lagos, requiring them to appear on November 24 1978. The Supreme Court held that service which did not conform to Section 99 of the Sheriffs and Civil Process Act was akin to no service. Therefore, service was not a mere regularity, but went to the root of jurisdiction and competence of the court.
In Nwabueze v Obi-Okoye a writ of summons was issued in Anambra State without leave to serve in Lagos having been obtained. The writ was served via an order for substituted service by registered post. The Supreme Court held that a combination of failure to obtain leave and non-compliance with the mandatory provisions of Section 97 of the Sheriffs and Civil Process Act nullified the proceedings. Skenconsult was cited in agreement.
In NEPA v Onah(5) a writ issued in Bendel State was not endorsed as required under Section 97 and the time for entry of appearance was less than 30 days later, in violation of Section 99 of the Sheriffs and Civil Process Act. Further, leave was not obtained to issue the writ. The court held that the writ was null and nullified all proceedings.
However, in Ezomo v Oyakhire(6) the appellant was sued in Bendel State and the address endorsed on the writ was in Bendel. After he was first found liable, the appellant's appeal included the grounds that he had been served in Enugu without leave and in non-compliance with Section 99 of the Sheriffs and Civil Process Act (which entitled him to 30 days within which to appear). The Supreme Court held that the appellant had waived the irregularity by filing pleadings and contesting the merits of the case. The court distinguished Skenconsult and other cases on the grounds that objections were raised to challenge the suit immediately without taking further steps. In any event, the purpose of service had been achieved by the defendant's appearance.
In Adegoke Motors v Adesanya,(7) a suit brought under the summary judgment procedure, the writ was issued in Lagos State and served in Oyo State without the mandatory endorsement required by Sections 97 and 99 (ie, the return date was earlier than the required 30-day period). Even though the appellant's solicitors appeared, he took no part in the proceedings and judgment was entered. One of the grounds of appeal was non-compliance with the mandatory provisions of the Sheriffs and Civil Process Act. Delivering the lead judgment, Justice Oputa stated that a writ can be void only if there os an intrinsic and substantial defect which renders it incurable; therefore, failure to challenge the service at the earliest opportunity constituted a waiver.
In Oodua Investments Ltd v Talabi(8) a full panel of the Supreme Court was constituted to resolve the conflicts in the series of cases cited above. The court held that there was no conflict in those cases and resolved the apparent contradictions by holding that non-compliance with the Sheriffs and Civil Process Act in terms of endorsement and time for entry only renders the writ or service thereof voidable, and a defendant so served may apply to have it set aside – as was done in Skenconsult, Nwabueze and NEPA – provided that the defendant has taken no fresh steps in the proceedings.
MV Arabella – volte face by Supreme Court?
The watershed moment in this controversy came in Owners of the MV Arabella v Nigeria Agricultural Insurance Corporation,(9) in which the Supreme Court went against the grain of its decision in Oodua Investments, holding instead that leave is required for service of a writ of summons out of jurisdiction and that this requirement applies to the Federal High Court as well as the state high courts. In MV Arabella the appellant commenced a suit against the respondent at the Federal High Court in Lagos. Service of the writ of summons was effected on the respondent in Abuja. The respondent filed a preliminary objection on the grounds that the writ of summons was improperly issued and served due to the failure to endorse it in accordance with Section 97 of the Sheriffs and Civil Process Act. The trial court set aside the writ of summons and service thereof and dismissed the suit. The Court of Appeal then affirmed that the issuance and service of the writ of summons was void, but set aside the order dismissing the suit, making an order to strike it out instead.
On further appeal, the Supreme Court held as follows:
"By virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summons for service out of the state in which it was issued must, in addition to any endorsement of notice required by law of such state, have endorsed thereon, a notice indicating that the summons is to be served out of the state and in which state it is to be served. Failure to endorse the required notice on a writ of summons for service outside of a state where it was issued is not a mere irregularity but a fundamental defect that renders the writ incompetent, and goes to the root of the jurisdiction and affects the competence of the court."(10)
The court further held as follows:
"The provisions of section 97 of the Sheriffs and Civil Process Act are applicable in all High Courts, including the Federal High Court. The provision of the section has nothing to do with the coverage of the jurisdiction of the Federal High Court, which is nationwide. It is therefore a total misconception of the law to contend that the provision of the section is inapplicable to the Federal High Court because the jurisdiction of that court covers the entire nation."
The decision in MV Arabella has been criticised by legal practitioners because it applied principles derived from cases concerning state high courts to the Federal High Court. In so doing, the Supreme Court glossed over the fact that the Federal High Court's rules specifically state that, with respect to the Federal High Court, 'out of jurisdiction' means 'out of Nigeria'. It further ignored the fact that the Federal High Court – which was established as a federal revenue court in 1976 – did not exist at the time of the enactment of the Sheriffs and Civil Process Act and therefore was not contemplated by that legislation.
For further information on this topic please contact Olugbenga Bello, Jamiu Akolade or Queeneth Epiah at ACAS – LAW by telephone (+234 1 462 2094) or email ([email protected], [email protected] or [email protected]). The ACAS - LAW website can be accessed at www.acas-law.com.
(1) Cap 56, Laws of the Federation of Nigeria 2004.
(3) Section 249 of the Constitution; Section 19 of the Federal High Court Act; Abiola v Federal Republic of Nigeria (1995) 3 NWLR (Part 382) 203.
(5) (1997) 1 NWLR (Part 484) 680.
(6) (1985) 1 NWLR (Part 2) 195.
(8) (1997) 10 NWLR (Part 523) 1.
(9) (2008) 11 NWLR (Part 1097) Page 182.