Tag Archives: civil procedure

Trial court may order substituted service even without an attempt at personal service.

 

Zakirai v. Muhammad [2017] 17 NWLR (Pt. 1594) 181 at 227, paras. C-G, per Augie, JSC:

“There it is – the trial court may order substituted service either after “or without an attempt at personal service”. The word “may” makes room for the exercise of discretion. It is an enabling and permissive word and in that sense, it imposes or gives a discretionary power.”

Notes:

The Supreme Court gave its interpretation to the clear provisions of Order 6 Rule 5(a) and (b) Federal High Court (Civil Procedure) Rules of 2009. The words in quote within the quoted pronouncement are as contained in the Rules. So, the Supreme Court had no difficulty in giving the provision its ordinary meaning. This is good.

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Failure to comply with section 97 of the Sheriffs and Civil Process Act is a mere irregularity that can be waived.

Zakirai v. Muhammad [2017] 17 NWLR (Pt. 1594) 181 at 230-231, paras. G-D, per Augie, JSC:

“His [The Appellant’s] objection was a complaint against the competence of the trial court to entertain the suit because the originating summons was not endorsed or marked as required by the said Act and Rules, which touches on the procedural rules that got parties to the court, and nothing whatsoever on the facts that led to the cause of action or substance of the suit filed by the first respondent. Any defect amounted to a mere irregularity that can be waived by the parties… In this case, the Appellant entered a conditional appearance and also filed a counter-affidavit [to the Originating Summons], which means he waived the irregularity that he complained of, and had submitted to the jurisdiction of the court.”

Notes:

The Court reasoned that while substantive jurisdiction of the court cannot be waived, a party can waive an issue relating to procedural jurisdiction of the court. In effect, the Court was of the view that the issue relating to the endorsement and marking of an originating process for service outside jurisdiction as provided for by the Sheriffs and Civil Process Act is an issue touching on the procedural jurisdiction of the court and thus can be waived.

The above position appears to run contrary to the Supreme Court position in the case of Owners of MV “Arabella” v. N.A.I.C. [2008] 11 NWLR (Pt. 1097) 182 where the Court held that such irregularity is not a mere one that can be waived and that it is immaterial that the defendant had taken steps. It was held there that failure to comply with the Act is fatal as it robs the court of jurisdiction to determine the suit.

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Leave of court is not required in all cases to issue a writ for service outside jurisdiction.

 

Zakirai v. Muhammad [2017] 17 NWLR (Pt. 1594) 181 at 217-218, paras. H-C, per Augie, JSC:

“…The Appellant has not come up with convincing arguments to counter the finding of the court below that the provisions of the 2009 Rules impose no obligation on the first Respondent to obtain “leave to issue” the Originating Summons. Rules of Court are not static; they change as the society evolves and legal issues become more and more complex or sophisticated. The said Federal High Court (Civil Procedure) Rules of 1976 and 2000 may have stipulated that no writ for service out of jurisdiction can be issued except by leave of court, but the 2009 Rules did not say so. The Appellant cannot bring in what he called a rule of practice to hold sway or supersede provisions of the 2009 Rules. No doubt, the Federal High Court (Civil Procedure) Rules has undergone several modifications geared towards improving access to justice since 1976, and to say that a particular rule must be carried on and implemented under the rules made decades later amounts to taking the clock back.”

Notes:

The case of Owners of MV “Arabella” v. N.A.I.C. [2008] 11 NWLR (Pt. 1097) 182 is the case often cited by lawyers (including the Appellant’s Counsel in the instant case) as an authority which gives judicial credence to the position (and the so called rule of practice) that leave to issue originating processes for service outside jurisdiction of court must be sought and obtained by a claimant.  The significant point from the above position of the Supreme Court is that Owners of MV “Arabella” was decided based on Federal High Court (Civil Procedure) Rules of 1976.

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