ECOBANK v. MADUFORO & ORS (2021) LPELR-52716(CA)
Issue
PRACTICE AND PROCEDURE – SERVICE OF COURT PROCESS(ES) –
Whether the provisions of Sheriffs and Civil Process Act with respect to service of Court processes apply to proceedings for enforcement of fundamental rights; Whether service by substituted means is permitted under the Fundamental Rights Enforcement Procedure Rules 2009
Principle
“As earlier stated, the submissions of Appellant on issues 1 and 2 are weaved and clustered around Sheriff and Civil Process Act Cap. S6 LFN 2004. Sections 97 and 99 thereof. Sections 96, 97, 98 and 99 of the said Act are as follows: “96 (1) A writ of summons issued out of or requiring the defendant to appear at any Court of a State, or the Capital Territory may be served on the defendant in any other State or the Capital territory. (2) Such service may, subject to any rules of Court which may be under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital territory in which the writ was issued. 97.
Every writ of summons for service under this part out of the State or the Capital territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital territory, have endorsed thereon a notice to the following effect (that is to say)- “This Summons (or as the case may be)… and in the State (or as the case may be): 98.
A writ of summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such state or the Capital territory and shall in that case be marked as concurrent. 99. The period specified in a writ of summons for service under this part as the period within which a defendant is required to answer before the Court to the writ of summons shall not be less than thirty days after service of the writ has been affected, or if a longer period is prescribed by the rules of the Court within which the writ of summons is issued not less than that longer period…”
The above sections of the Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 have received judicial consideration and interpretation in the following cases viz: 1. HON (MRS) DOROTHY MATO VS HON I. H. HEMBER & ORS (2018) 5 NWLR (Part 612) 258 at 286 – 287 per My Noble Lord ONNOGHEN, CJN Rtd who held firmly thus:- “with regards to Section 96 and 97 of the Sheriffs and Civil Process Act (supra) the Court below mixed up the issues of filing of process, issuance, and service of process, I agreed, without reservation that service of writ of summons on the defendant is very fundamentals to assumption of Jurisdiction by a Court and where leave is required before service, it must be sought and obtained before such service can be effective.
Leave is nothing other than permission from the Court to serve outside Jurisdiction. Once granted, “service can be carried out.” Any service outside jurisdiction that is done without leave renders the service nullity. See Skenconsult (Nig) Ltd vs Ukey (1981) 1 SC 6, Adegoke Motors Ltd vs Adesanya (1989) 3 NWLR (PART 109) 250 and Nwabueze vs Obi Okoye (1988) 4 NWLR (PART 91) 664.
The questions that may be asked is whether the filing of process in Court and service of the said process are the same.
Without much ado, they are not the same, Thus, a party who seeks to place his matter before a Court of law must first approach the registry of the Court and file same in accordance with the rules of Court. After filing the matter, the next step is to serve the process on the defendant, except it is a matter which the law permit to be done ex-parte.
Where the law, as in this case, requires that leave be obtained before service can be affected, such leave must be sought and obtained. The Court below seems to have taken the issue of leave to serve outside jurisdiction to mean leave to file the process in Court.
This is where the lower Court erred. If one takes a look at Section 96 and 97 of the Sheriffs and Civil Process Act (supra) it will reveal that they come under a subtitle- “service of process” “it does not come under filing of process.” These are two separate things. One relates to service of process while the other relates to filling of same. 2. PDP V. INEC & ORS (2018) 12 NWLR (PART 1634) 533 AT 549 E-H TO 550 A-B Per RHODES-VIVOUR, JSC who said: “it is so obvious after reading, Section 97 of the Sheriffs and Civil Process Act that is couched in mandatory terms.
It is abundantly clear that any service of a writ without the proper endorsement has stipulated by Section 97 (supra), is not a mere irregularity but is a fundamental effect that render the writ incompetent.
There can be no doubt whatsoever that by virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summon (or originating summon) for service out of the state in which it was issued must with addition to any endorsement of notice required have endorsed on it, a notice indicating, that the summons is to be served out of the stated and in which State it to be settled.
Once again, failure to endorse the required notice on an originating process for service outside the state where it was issued is not a mere irregularity but a fundamental defect that renders the originating process incompetent. A Court would be deprived of jurisdiction to hear the case if satisfied that there is non-compliance with Section 97 of the Sheriffs and Civil Process Act. See Odua Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Part 523) P.1 Nwabueze and Anor v. Justice Obi Okoye (1988) 4 NWLR (Part 91) P664 Skenconsult (Nig) Ltd v Ukey (1981) 12 NSCC P.1.
The Court have no description under Section 97 of the Sheriffs and Civil Process Act. Once claimant fails to comply with the mandatory provision in Section 97 supra, the Court will no longer have jurisdiction to hear the suit. It is fundamental that the claimant obeys and complies fully with the Provision. No valid appearance can be entered by the defendant to an originating process that does not have the mandatory endorsement, except to enter conditional appearance.
I have examined the originating summons and subsequent amendment to it, and I am satisfied that there is no endorsement on it for service in Abuja outside Delta State. The originating summons is invalid, worthless and void. There would be no need for me to consider whether leave was obtained, since non-compliance with Section 97 of the Sheriffs and Civil Process Act brings the hearing of this appeal to an end. The Court of Appeal was wrong while the High Court was right.
Once there was non-compliance with provision of Section 97 of the Sheriffs and Civil Process Act, the trial Court would have no jurisdiction to hear the case.” I am very much of the view that Sections 97, 98 and 99 of Sheriff and Civil Process Act Cap 36 Laws of the Federation of Nigeria 2004 are not applicable to proceedings or suit for enforcement of fundamental rights of citizens and other persons as contained in Sections 33 – 45 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) because the enforcement of the said Fundamental Rights and preventions of their breach are sui generis or on a special class in terms of enforcement.
The Constitution itself specifically provides the procedure or methods of enforcement of fundamental rights and their prevention or their breach in Section 46 of the Constitution of the Federal Republic of Nigeria 1999 as amended to enable easy access to designated Courts under the said Constitution and or expeditious attention and hearing of matters relating to or pertaining to enforcement of fundamental rights and preventions of their breach by authorities and persons.
The said Section 46 of the Constitution provides: 1. Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress. 2. Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such order, issue such writs, and give such directions as it may consider appropriate for the purpose of enforcing or securing g the enforcement within that state of any right to which the person who makes the application may be entitled under this chapter. 3.
The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section. 4. The National Assembly – a) May confer upon a High Court such powers in addition to those conferred by this section as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by this section; and b) Shall make provisions – I.
For the rendering of financial assistance to any indigent citizen of Nigeria where his right under this chapter has been infringed or with a view to enabling him to engage the services of a legal practitioner to prosecute his claim, and II. For ensuring that allegations of infringement of such rights are substantial and the requirement or need for financial or legal and real.
Thus, procedure for institution of action touching and concerning fundamental rights action has been provided for expressly in the Constitution and the Fundamental Rights (Enforcement Procedure) Rules 2009 made at Abuja on 11th day of November 2009 by the then Chief Justice of Nigeria – IDIRIS LEGBO KUTIGI (Rtd) of blessed memory. The Rules contained therein are specially made for the enforcement of the rights guaranteed and enshrined in the 1999 Constitution (as amended) Chapter IV thereof. Therefore, the special status and uniqueness of the Fundamental Rights Enforcement Procedure and the importance attached to it have been eloquently stated in the case of EFCC VS WOLF GANG REINL (2020) 5 SCM 128 at 143 F-S to 145 A-H per KEKERE-EKUN, JSC who said: “It is also evident from Section 46(1) of the Constitution that a person seeking to enforce his fundamental rights may seek redress in any High Court.
The question that arises is whether the nature of the respondent’s claim before the trial Court has in any way restricted jurisdiction to hear it to Federal High Court? It has been argued by learned counsel for the appellant that what should determine the Court’s jurisdiction is the subject matter of the alleged breach, which in his view, relates to the administration or management and control of the appellant. With the greatest respect to learned counsel, this is an erroneous conception of the import of Section 46(1) of the Constitution.
The provisions are clear and should be given their natural and ordinary meaning. At the risk of repetition, it provides that any persons who alleges that any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be contravened in any state in relation to him, may apply to a High Court for redress.
A careful examination of the respondent’s claim shows clearly that he is not challenging any administration any administrative or executive act or the management and control of the appellant. He is alleging that his fundamental right to persona/liberty guaranteed under Section 35(1) and (4) of the Constitution, his right to be notified in writing of any offence allegedly committed by him, guaranteed by Section 35(3) of the Constitution; his right to dignity guaranteed by Section 34(1) of the Constitution; and his right to property guaranteed by Section 43 of the Constitution. In case of Jack v. University of Agriculture, Makurdi (2004) 1 SC (pt.1) 100 @ 111-112, Section 46(1) of the 1999 Constitution was interpreted by this Court. Reference was made to the interpretation of Section 42(1) of the 1979 Constitution (which is in pari material with Section 46(1) of the 1999 Constitution, as amended), which was considered in Bronik Motors Ltd. V. Wema Bank Ltd. (1983) 1 SCNLR 296 and Tukur v. Government of Gongola State (1989) 9 SC 1; (1989) 4 NWLR (Pt,117) 517, to the effect that where both the State High Court and the Federal High Court exist in a state, they have concurrent jurisdiction in matters pertaining to fundamental rights.
His Lordship Nwafor, JSC continued at page 111 line 21 to page 112 line 3 as follows: “Section 42 (1) is a special provision which deal with matter of fundamental rights. It confers jurisdiction on any High Court in State in matter of Fundamental Rights in respective of who us affected by an action founded on such right.
On the other hand, Section 230(1) (s) of the 1979 Constitution (as amended) is a general provision. The law is that where there is a special provision in a statue, a later general provision in the same statute capable of covering of the same subject matter is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared. See Federal Mortgage Bank of Nigeria vs Olloh (2002) 4 LC (Part 11) 117; (2002) 9 NWLR (773) 475 at 489, (2002) 7 LCM, 63. In my view, Section 42(1) is intended to give access to an aggrieved party to any High Court in a state where an alleged contravention of his fundamental rights has taken place or is to take place, it is therefore a section which should itself be regarded as special and fundamental.
The Court below was in error to hold that when a suit in respect of matters of fundamental rights was brought against the Federal Government or any of its agency, Section 230(1) (s) of the 1979 Constitution (As Amended) prevail over Section 42(1).” This authority is a direct answer to the appellant contention that the Federal High Court has exclusive jurisdiction to entertain the suit. The Respondent contention in his supporting affidavit is that he was unlawfully detained without been inform in writing of his alleged offence and without being charged before a competent Court.
It therefore cannot be correct to contend, as learned counsel for the appellant has done, that the subject matter of the Originating Motion was money laundry. I am of the view and I do hold that the decision of this Court in Jack v University of Agriculture, Markurdi, (supra) and authorities of Bronik Motors Limited v Wema Bank Limited and Tukur v. Government of Gogonla State (supra) represent the correct position of the law in this regard. In a recent decision of this Court in Federal University of Technology, Minna, Niger State & Ors v. Bukola Oluwaseun Olutayo (2017) LPELR-43827 (S C) @ 27-32- D-A, I expressed the following opinion: “it is quite evident that Section 46 Sub-section 1 of 1999 Constitution (as Amended) above refers to: “A High Court of a State without any restriction. The violation of the citizens fundamental rights is reviewed so seriously that framers of the Constitution sought to ensure that no fetters are placed in the part of the citizen seeking to enforce his right.
In other words, the provision ensure that he has access to any High Court as long as it is within the state in which the alleged infraction occurred. Indeed, it would negate the principle behind the guarantee of fundamental rights if a citizen were to have any obstacles placed in the part of enforcing those rights.
There is no ambiguity in the provision of the Constitution or of the Fundamental Rights (Enforcement Procedure) Rules… regarding which Court has the jurisdiction to entertain an application for the enforcement of fundamental rights. The decision of this Court in Jack v University of Agriculture, Markurdi (2004) ALL FWLR (Part 200) 1506 @ 1518 B-D has put the matter to rest… “I adopt the view so express in the instant case. So long as the enforcement of the applicant fundamental rights is the main claim in the suit and not an ancillary claim, the Federal High Court and State High Court, including the High Court of the FCT, have concurrent jurisdiction to entertain it. See… Tukur v. Government of Gongola State (supra).” (Underlined mine) See also: ORDER II RULES 1, 2 and 3 of the Fundamental Rights Enforcement Procedure Rules 2009: “1. Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and People’s Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress: Provided that where the infringement occurs in a State which has no division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction. Form No. 1 in the Appendix may be used as appropriate. 2. An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provision of the Rules, lie without leave of Court. 3. An application shall be supported by a Statement setting out the name and description of the applicant, the relief sought, the ground upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made.” (underlined mine) ORDER IV RULE 1 and 2 of the Fundamental Rights Enforcement Procedure Rules 2009 also provide: “1. The application shall be fixed for hearing within 7 days from the day the application was filed. 2. The hearing of the application may from time to time be adjourned where extremely expedient, depending on the circumstances of each case or upon such terms as the Court may deem fit to make, provided the Court shall always be guided by the urgent nature of application under these Rules.” The Appellant had complained that it ought not to have been served vide substituted means. I am of the solemn view that by and under the Fundamental Rights Enforcement Procedure Rules 2009 Service by substituted means is permitted under Order V Rules 7 which Provides: “Where it appears to the Court, either after or without an attempt at personal service of the Court processes that for any reason personal service cannot be conveniently effected the Court may order that service be effected either- (a) By delivery of the document to an adult person at the usual or last known place of abode or business of the party to be served; or (b) By delivery of the document to some person being an agent of the party to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or the person, come to the knowledge of the party to be served; or (c) By delivery of the document to any senior officer of any government agency that has office both in the state where the breach occurred and head office either in Federal Capital territory or elsewhere; A service on the agency through its office in any state where the breach occurred will be considered as sufficient service; or (d) By advertisement in the Federal Government Official Gazette, or in some newspapers circulating within the jurisdiction; or (e) By notice put up at the principal Court House of, or some other place of Public resort in the judicial division where the proceedings in respect of which the service is made is instituted, or as the usual or last known place of abode or business, of the part to be served.” In any event, the mode of service upon the Appellant is contemplated under Section 78 of Company and Allied Matters Act. Section 78 thereof which provides: “A Court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at, or sending it by post to, the registered office or head office of the company.”
The suit herein was competently commenced or initiated, and the Appellant was duly served all processes filed in this suit and service of same was confirmed by its Legal Practitioner at the Court below. The lower Court has the jurisdiction to have entertained the action. The Appellant bank can be served vide substituted means under the Fundamental Rights (Enforcement Procedure) Rules 2009.” Per PETER OLABISI IGE, JCA (Pp 42 – 59 Paras A – C)