Sam Atoe & Company

ECOBANK (NIG) LTD v. SALEH
(2020) LPELR-52024(CA)

ISSUE
PRACTICE AND PROCEDURE - ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES)
- What is the effect of non-compliance with the provisions of Sections 97 and 99 of the Sheriffs and Civil Process Act as regards service of writ outside jurisdiction

PRINCIPLE
"The issue of non-endorsement of the writ of summons in line with Section 97 of the Sheriffs and Civil Process Act was not raised and canvassed before the lower Court and it was not pronounced upon by the lower Court. It was raised for this first time in this appeal and it is Ground One on the notice of appeal. The position of the law on the applicability of the provisions of the sections dealing with service of processes in the Sheriffs and Civil Process Act to originating processes issued out of the Federal High Court appears divergent. The Supreme Court has held in the cases of Owners of the MV Arabella Vs Nigerian Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182 at 220, Drexel Energy and Natural Resources Ltd Vs Trans International Bank Ltd (2009) All FWLR (Pt 456) 1823, Owners of MV MSC Agata Vs Nestle (Nig) Plc (2014) 1 NWLR (Pt. 1388) 270 at 291, Central Bank of Nigeria Vs Inter Stella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294, 326, Izeze Vs Independent National Electoral Commission (2018) 12 NWLR (Pt. 1629) 110 and Peoples Democratic Party Vs Independent National Electoral Commission (2018) 12 NWLR (Pt. 1634) 533 that the provisions apply to the originating processes issued by the Federal High Court. However, in the case of Boko Vs Nungwa & Ors (2019) 1 NWLR (Pt 1654) 398, one of the Justices of the Supreme Court, Peter-Odili, JSC, suggested that the provisions do not apply to originating processes issued by the Federal High Court. Counsel to the Respondent has referred this Court to the unreported decision of the Supreme Court in Suit No SC.341/2019 - Biem Vs Social Democratic Party as holding that the provisions do not apply to originating processes issued by the Federal High Court. Counsel to the Respondent did not produce a copy of the said unreported decision for this Court to peruse and he did not state the date the judgment was delivered. This Court does not intend to get embroiled in the controversy of whether or not the provisions on service in the Sheriffs and Civil Process Act apply to originating processes issued by the Federal High Court. The situation appears to still be in a flux and this Court will leave it to the Supreme Court to clarify and sort out. It will resolve this issue for determination on other grounds. It is not in contest that the writ of summons in this matter was issued in the lower Court, Federal High Court, Kano Judicial Division, and it was for service and was indeed served on the Respondent in Lagos and it did not carry the endorsement as provided for in Section 97 of the Sheriffs and Civil Process Act. The question that this Court will consider for resolution under this issue for determination is - what is the effect of this dereliction? At a point in time there was so much confusion on the issue and this was brought about by the different decisions of the Supreme Court on the point. These were the decisions in Skenconsult (Nig) Ltd Vs Ukey (1981) 1 SC 6, Ezomo Vs Oyakhire (1985) 1 NWLR (Pt 2) 195, Nwabueze Vs Okoye (1988) 4 NWLR (Pt 91) 664, Adegoke Motors Ltd Vs Adesanya (1989) 3 NWLR (Pt 109) 250 and NEPA Vs Onah (1997) 1 NWLR (Pt 484) 680. However, in Odu'a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523) 1, the Supreme Court constituted a full panel of seven Justices to consider the issue and to reconcile its conflicting decisions and the decision of the Court, by a majority of six to one, was read by Ogundare, JSC. The learned Justice streamlined the views of the Supreme Court on the issue at page 52 C-F thus: "From all I have been saying, my answer to the question set out in this judgment, therefore, is that non-compliance with Section 97 and/or Section 99 of the Sheriffs and Civil Process Act and the rule of Court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled ex debitio justitiae to have same set aside as was done in Skenconsult, Nwabueze and NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused. I need point out, for the avoidance of doubt, that the power to set aside is without prejudice to the power of the Court to allow, in appropriate cases, such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit. Turning to the case on hand, the appellant from the various steps it took in the proceedings after service on it of the writ of summons cannot now be heard to complain of defects in the issue and service of the writ. It is too late in the day to do so. He has waived his right to complain. The trial must go on. Technicalities are a blot upon the administration of the law and the Courts have moved a long way from allowing them to make an ass of it and dent the image of justice." In other words, the position taken by the full panel of the Supreme Court was that non-compliance with the provisions of the Federal High Court Rules and the Sheriffs and Civil Process Act is an irregularity which only renders the writ voidable, not void, and that such a writ will be voided at the instance of a defendant who acts timeously and before further steps are taken in the matter. This position was reiterated by the Supreme Court in the cases of Feed and Food Farms (Nig) Vs NNPC (2009) 6 MJSC (Pt 1) 131, Attorney General, Kwara State Vs Adeyemo (2017) 1 NWLR (Pt 1546) 210, Zakirai v Muhammed (2017) 17 NWLR (Pt 1594) 181 and Central Bank of Nigeria V InterStella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294, 326. It is correct that in Owners of the MV "Arabella" Vs Nigeria Agricultural Insurance Corp (2008) 11 NWLR (Pt 1097) 182, the Supreme Court speaking on the effect of non-compliance with the provisions of Section 97 of the Sheriffs and Civil Process Act said that: '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 the 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.' This position of law was reiterated by the Supreme Court in the cases of Drexel Energy and Natural Resources Ltd Vs Trans International Bank Ltd (2009) All FWLR (Pt 456) 1823, Izeze Vs Independent National Electoral Commission (2018) 12 NWLR (Pt. 1629) 110 and Peoples Democratic Party Vs Independent National Electoral Commission ?(2018) 12 NWLR (Pt. 1634) 533. Ordinarily, these later decisions of the Supreme Court should constitute the present position of the law on the subject. The circumstances, in the present instance, are however not ordinary. Now, the Supreme Court sits in two panels - a panel of five Justices, used for its regular sittings, and a panel of seven Justices, usually referred as the sitting of the Full Court. The sitting of the Full Court of the Supreme Court is equivalent to what is referred to as "en banc" sitting of the appellate Courts in other jurisdictions. The sitting of the Full Court of the Supreme Court takes place where the Court is being asked to depart, or may decide to depart from a previous decision, in cases of high constitutional importance or great public importance, or in cases where conflicts in the decisions of its regular panels have to be reconciled. A decision rendered by the Full Court of the Supreme Court is regarded as the decision of the entire Justices of the Court, and not just the decision of the seven-man panel that sat on the matter. Under the doctrine of stare decisis, a sitting of the Full Court of the Supreme Court can overrule a prior decision of the Court. A decision of the Full Court of the Supreme Court is superior to, and overrides the decision of a regular panel of the Court - Bogoro Local Government Council Vs Kyauta (2017) LPELR 43296(CA), Federal Republic of Nigeria Vs Achida (2018) LPELR 46065(CA). Thus, jurisprudentially a decision of the five-man panel of the Supreme Court cannot override or supersede the decision of the Full Court of the Supreme Court. The decisions in the cases of Owners of the MV "Arabella" Vs Nigeria Agricultural Insurance Corp supra, Drexel Energy and Natural Resources Ltd Vs Trans International Bank Ltd supra, Izeze Vs Independent National Electoral Commission supra and Peoples Democratic Party Vs Independent National Electoral Commission supra were delivered by five-man panels of the Supreme Court while the decision in Odu'a Investment Co. Ltd Vs Talabi supra was by a seven-man panel of the Supreme Court. The decision in Odu'a Investment Co. Ltd Vs Talabi enjoys the air of superiority and thus still remains the law until it is set aside or overridden by a decision of a panel of seven Justices of the Supreme Court - Gadi Vs Made (2010) 7 NWLR (Pt 1193) 325, Zakirai Vs Muhammad (2015) LPELR 40387(CA), Obasanjo Farms (Nig) Ltd Vs Muhammad (2016) LPELR 40199(CA), Social Democratic Party Vs Biem (2019) LPELR 46871(CA). In other words, the extant position of the law is that non-compliance with the provision of Section 97 of the Sheriffs and Civil Process Act is a matter of procedural irregularity which renders the process voidable, and not a fundamental defect that renders the process void. It is trite law that matters of procedural irregularity must be raised by a party at the earliest opportunity upon being served with the Court process and before taking any further step in the matter, otherwise he will be deemed to have waived the irregularity and be foreclosed from raising it again- Kwaa Vs Kwakwa 3 WACA 176, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488. It has also been held that filing an unconditional appearance, filing a statement of defence or answer to a claim or anything done with the effect of defending an action amounts to taking steps that will foreclose the right of a party to raise an issue of procedural irregularity - Akintunde Vs Ojo (2002) FWLR (Pt 117) 1067, Ogbaegbe Vs First Bank of Nigeria Plc (2005) 18 NWLR (Pt 957) 357. It is on record that upon being served with the writ of summons in question in the present case, the Appellant filed a memorandum of unconditional appearance and its statement of defence to the claims of the Respondent and which statement of defence it subsequently amended. The Appellant participated in the full trial of the matter on the merits without once raising the issue of non-compliance with the provision of Section 97 of the Sheriffs and Civil Process Act. Thus, the Appellant effectively waived the issue of non-compliance and the lower Court rightly exercised jurisdiction to entertain the claims of the Respondent - Duke Vs Akpabuyo (2005) 19 NWLR (Pt 959) 130, Obasanjo Farms (Nig) Ltd Vs Muhammad (2016) LPELR 40199(CA). The Appellant cannot be heard to raise the issue of non-compliance in this appeal." Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 20 - 30 Paras A - A)

Additionally, it is recognized that this Court sits in two panels - a panel of three Justices, used for its regular sittings, and a panel of five Justices, usually referred as the sitting of the Full Court. The sitting of the Full Court of the Court of Appeal is equivalent to what is referred to as "en band' sitting of the appellate Courts in other jurisdictions. The sitting of the Full Court of the Court of Appeal takes place where the Court is being asked to depart, or may decide to depart, from a previous decision, in cases of high constitutional importance or great public importance, or in cases where conflicts in the decisions of its regular panels have to be reconciled. A decision rendered by the Full Court of the Court of Appeal is regarded as the decision of the entire Justices of the Court, and under the doctrine of stare decisis, it can overrule a prior decision of the Court of Appeal. A decision of the Full Court of the Court of Appeal is superior to, and overrides the decision of a regular panel of the Court.

ECOBANK (NIG) LTD v. SALEH
(2020) LPELR-52024(CA)

ISSUE
PRACTICE AND PROCEDURE - ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES)
- What is the effect of non-compliance with the provisions of Sections 97 and 99 of the Sheriffs and Civil Process Act as regards service of writ outside jurisdiction

PRINCIPLE
"The issue of non-endorsement of the writ of summons in line with Section 97 of the Sheriffs and Civil Process Act was not raised and canvassed before the lower Court and it was not pronounced upon by the lower Court. It was raised for this first time in this appeal and it is Ground One on the notice of appeal. The position of the law on the applicability of the provisions of the sections dealing with service of processes in the Sheriffs and Civil Process Act to originating processes issued out of the Federal High Court appears divergent. The Supreme Court has held in the cases of Owners of the MV Arabella Vs Nigerian Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182 at 220, Drexel Energy and Natural Resources Ltd Vs Trans International Bank Ltd (2009) All FWLR (Pt 456) 1823, Owners of MV MSC Agata Vs Nestle (Nig) Plc (2014) 1 NWLR (Pt. 1388) 270 at 291, Central Bank of Nigeria Vs Inter Stella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294, 326, Izeze Vs Independent National Electoral Commission (2018) 12 NWLR (Pt. 1629) 110 and Peoples Democratic Party Vs Independent National Electoral Commission (2018) 12 NWLR (Pt. 1634) 533 that the provisions apply to the originating processes issued by the Federal High Court. However, in the case of Boko Vs Nungwa & Ors (2019) 1 NWLR (Pt 1654) 398, one of the Justices of the Supreme Court, Peter-Odili, JSC, suggested that the provisions do not apply to originating processes issued by the Federal High Court. Counsel to the Respondent has referred this Court to the unreported decision of the Supreme Court in Suit No SC.341/2019 - Biem Vs Social Democratic Party as holding that the provisions do not apply to originating processes issued by the Federal High Court. Counsel to the Respondent did not produce a copy of the said unreported decision for this Court to peruse and he did not state the date the judgment was delivered. This Court does not intend to get embroiled in the controversy of whether or not the provisions on service in the Sheriffs and Civil Process Act apply to originating processes issued by the Federal High Court. The situation appears to still be in a flux and this Court will leave it to the Supreme Court to clarify and sort out. It will resolve this issue for determination on other grounds. It is not in contest that the writ of summons in this matter was issued in the lower Court, Federal High Court, Kano Judicial Division, and it was for service and was indeed served on the Respondent in Lagos and it did not carry the endorsement as provided for in Section 97 of the Sheriffs and Civil Process Act. The question that this Court will consider for resolution under this issue for determination is - what is the effect of this dereliction? At a point in time there was so much confusion on the issue and this was brought about by the different decisions of the Supreme Court on the point. These were the decisions in Skenconsult (Nig) Ltd Vs Ukey (1981) 1 SC 6, Ezomo Vs Oyakhire (1985) 1 NWLR (Pt 2) 195, Nwabueze Vs Okoye (1988) 4 NWLR (Pt 91) 664, Adegoke Motors Ltd Vs Adesanya (1989) 3 NWLR (Pt 109) 250 and NEPA Vs Onah (1997) 1 NWLR (Pt 484) 680. However, in Odu'a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523) 1, the Supreme Court constituted a full panel of seven Justices to consider the issue and to reconcile its conflicting decisions and the decision of the Court, by a majority of six to one, was read by Ogundare, JSC. The learned Justice streamlined the views of the Supreme Court on the issue at page 52 C-F thus: "From all I have been saying, my answer to the question set out in this judgment, therefore, is that non-compliance with Section 97 and/or Section 99 of the Sheriffs and Civil Process Act and the rule of Court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled ex debitio justitiae to have same set aside as was done in Skenconsult, Nwabueze and NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused. I need point out, for the avoidance of doubt, that the power to set aside is without prejudice to the power of the Court to allow, in appropriate cases, such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit. Turning to the case on hand, the appellant from the various steps it took in the proceedings after service on it of the writ of summons cannot now be heard to complain of defects in the issue and service of the writ. It is too late in the day to do so. He has waived his right to complain. The trial must go on. Technicalities are a blot upon the administration of the law and the Courts have moved a long way from allowing them to make an ass of it and dent the image of justice." In other words, the position taken by the full panel of the Supreme Court was that non-compliance with the provisions of the Federal High Court Rules and the Sheriffs and Civil Process Act is an irregularity which only renders the writ voidable, not void, and that such a writ will be voided at the instance of a defendant who acts timeously and before further steps are taken in the matter. This position was reiterated by the Supreme Court in the cases of Feed and Food Farms (Nig) Vs NNPC (2009) 6 MJSC (Pt 1) 131, Attorney General, Kwara State Vs Adeyemo (2017) 1 NWLR (Pt 1546) 210, Zakirai v Muhammed (2017) 17 NWLR (Pt 1594) 181 and Central Bank of Nigeria V InterStella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294, 326. It is correct that in Owners of the MV "Arabella" Vs Nigeria Agricultural Insurance Corp (2008) 11 NWLR (Pt 1097) 182, the Supreme Court speaking on the effect of non-compliance with the provisions of Section 97 of the Sheriffs and Civil Process Act said that: '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 the 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.' This position of law was reiterated by the Supreme Court in the cases of Drexel Energy and Natural Resources Ltd Vs Trans International Bank Ltd (2009) All FWLR (Pt 456) 1823, Izeze Vs Independent National Electoral Commission (2018) 12 NWLR (Pt. 1629) 110 and Peoples Democratic Party Vs Independent National Electoral Commission ?(2018) 12 NWLR (Pt. 1634) 533. Ordinarily, these later decisions of the Supreme Court should constitute the present position of the law on the subject. The circumstances, in the present instance, are however not ordinary. Now, the Supreme Court sits in two panels - a panel of five Justices, used for its regular sittings, and a panel of seven Justices, usually referred as the sitting of the Full Court. The sitting of the Full Court of the Supreme Court is equivalent to what is referred to as "en banc" sitting of the appellate Courts in other jurisdictions. The sitting of the Full Court of the Supreme Court takes place where the Court is being asked to depart, or may decide to depart from a previous decision, in cases of high constitutional importance or great public importance, or in cases where conflicts in the decisions of its regular panels have to be reconciled. A decision rendered by the Full Court of the Supreme Court is regarded as the decision of the entire Justices of the Court, and not just the decision of the seven-man panel that sat on the matter. Under the doctrine of stare decisis, a sitting of the Full Court of the Supreme Court can overrule a prior decision of the Court. A decision of the Full Court of the Supreme Court is superior to, and overrides the decision of a regular panel of the Court - Bogoro Local Government Council Vs Kyauta (2017) LPELR 43296(CA), Federal Republic of Nigeria Vs Achida (2018) LPELR 46065(CA). Thus, jurisprudentially a decision of the five-man panel of the Supreme Court cannot override or supersede the decision of the Full Court of the Supreme Court. The decisions in the cases of Owners of the MV "Arabella" Vs Nigeria Agricultural Insurance Corp supra, Drexel Energy and Natural Resources Ltd Vs Trans International Bank Ltd supra, Izeze Vs Independent National Electoral Commission supra and Peoples Democratic Party Vs Independent National Electoral Commission supra were delivered by five-man panels of the Supreme Court while the decision in Odu'a Investment Co. Ltd Vs Talabi supra was by a seven-man panel of the Supreme Court. The decision in Odu'a Investment Co. Ltd Vs Talabi enjoys the air of superiority and thus still remains the law until it is set aside or overridden by a decision of a panel of seven Justices of the Supreme Court - Gadi Vs Made (2010) 7 NWLR (Pt 1193) 325, Zakirai Vs Muhammad (2015) LPELR 40387(CA), Obasanjo Farms (Nig) Ltd Vs Muhammad (2016) LPELR 40199(CA), Social Democratic Party Vs Biem (2019) LPELR 46871(CA). In other words, the extant position of the law is that non-compliance with the provision of Section 97 of the Sheriffs and Civil Process Act is a matter of procedural irregularity which renders the process voidable, and not a fundamental defect that renders the process void. It is trite law that matters of procedural irregularity must be raised by a party at the earliest opportunity upon being served with the Court process and before taking any further step in the matter, otherwise he will be deemed to have waived the irregularity and be foreclosed from raising it again- Kwaa Vs Kwakwa 3 WACA 176, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488. It has also been held that filing an unconditional appearance, filing a statement of defence or answer to a claim or anything done with the effect of defending an action amounts to taking steps that will foreclose the right of a party to raise an issue of procedural irregularity - Akintunde Vs Ojo (2002) FWLR (Pt 117) 1067, Ogbaegbe Vs First Bank of Nigeria Plc (2005) 18 NWLR (Pt 957) 357. It is on record that upon being served with the writ of summons in question in the present case, the Appellant filed a memorandum of unconditional appearance and its statement of defence to the claims of the Respondent and which statement of defence it subsequently amended. The Appellant participated in the full trial of the matter on the merits without once raising the issue of non-compliance with the provision of Section 97 of the Sheriffs and Civil Process Act. Thus, the Appellant effectively waived the issue of non-compliance and the lower Court rightly exercised jurisdiction to entertain the claims of the Respondent - Duke Vs Akpabuyo (2005) 19 NWLR (Pt 959) 130, Obasanjo Farms (Nig) Ltd Vs Muhammad (2016) LPELR 40199(CA). The Appellant cannot be heard to raise the issue of non-compliance in this appeal." Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 20 - 30 Paras A - A)

Law Diary, and Sam Atoe & Company
19/04/24

BEN THOMAS HOTELS LTD v. SEBI FURNITURE CO LTD
(1989) LPELR-769(SC)

ISSUE
JUDGMENT AND ORDER - SETTING ASIDE JUDGMENT/ORDER
- Procedure for setting aside a judgment on the ground of irregularity

PRINCIPLE
"Even if a judgment is to be set aside for irregularity in a situation like the one here, the irregularity must be stated in the notice of motion. The affidavit in support of the motion should also state the circumstances under which the default has arisen, and should disclose the nature of the defence. See Chitty and Jacob, Form 74; Chitty Arch., 333." Per ABDUL GANIYU OLATUNJI AGBAJE, JSC (Pp 24 - 24 Paras F - G)

Law Diary, and Sam Atoe & Company
16/03/24

AKPAN & ORS v. UMOH & ORS
(1999) LPELR-375(SC)

ISSUE
JUDGMENT AND ORDER - SETTING ASIDE JUDGMENT/ORDER
- Whether a judgment can be set aside on the ground of delay

PRINCIPLE
"Delay per se, however, does not lead to a judgment being vitiated; the delay must occasion a miscarriage of justice to result in such a conclusion. This point was dealt with at length by this Court in a recent case - Chief Osigwe Egbo & Ors. v. Chief Titus Agbara & Ors. (1997) 1 N.W.L.R (Pt.481) 293 at p. 316 B & E- F where Iguh, J.S.C. observed: "For the complaint to succeed, it has to be further established that the delay occasioned a miscarriage of justice in that the trial Judge did not take a proper advantage of having seen or heard the witnesses testify or that he had lost his impressions of the trial due to such inordinate delay." After quoting from the judgment of Idigbe J.S.C, in Chief Akpor v. Iguoriguo & Ors. (1978) 2 S.C. 115 at p. 128. Iguh J.S.C. went on to say: "It is, therefore, not in every case where inordinate delay is established that the appellate court must necessarily set aside the decision of the trial court. An appellant, to succeed, must go further to show, from the record of proceedings, that the trial Judge had lost his impressions of the trial or had not taken a proper advantage of having seen or heard the witnesses testify as a result of the delay complained of." Adio J.S.C. in his own judgment in the case, observed at pages 320-321 of the report: "On the question whether there was prolonged or inordinate delay in the hearing and determination of the case and, if so, whether it vitiated the trial, the legal-effect depends on the circumstances of each particular case. For example, the trial will be vitiated if the learned trial Judge is no longer in a position to properly articulate the evidence adduced before him and make full use of his advantage in having seen and observed the demeanor and the credibility of the witnesses who testified before him. If that is the case, then the prolonged or undue delay is capable of occasioning a miscarriage of justice and will vitiate the trial. See Awobiyi & Sons v Igbalaiye & Bros. (1965) All N.L.R 163. It will be otherwise if the memory of the learned trial Judge has not been blurred or in anyway been adversely affected and no credibility of the witnesses was involved. In short, a party raising as a ground for attacking the findings of facts of the trial court on the ground that there was a prolonged or undue delay in the trial of the case must show the specific finding or findings of fact which could be faulted as a result of the delay. See Ariori v. Elemo (1983) 1 S.C.N.L.R 1; and Chukwu v. The State (1992) 1 N.W.L.R (Pt.217) 255." Per MICHAEL EKUNDAYO OGUNDARE, JSC (Pp 13 - 15 Paras E - C)

Law Diary, and Sam Atoe & Company
16/03/24

UNITY BANK PLC v. KAY PLASTIC (NIG) LTD & ANOR
(2011) LPELR-8839(CA)

ISSUE
JUDGMENT AND ORDER - SETTING ASIDE JUDGMENT/ORDER
- Procedure for setting aside a judgment on the ground of irregularity

PRINCIPLE
"Now, Order 4 Rule 2 (1) and (2) of the 2005 Rules read as follows: 2 (1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party, applying has taken any fresh step after becoming aware of the irregularity. (2) Any application under Sub-rule (1) may be made by summons or motion, and the grounds of objection shall be stated in the summons I have no hesitation in finding in favour of the eloquent adumbrations which the counsel for the appellant made on this point. The said Order 4 R ule 2 is one of the devices in the new regime of the Rules of the lower Court designed to checkmate the old practice where counsel most, incessantly, stalled Court proceedings by objections: objections which were often intended not only to spring surprise on the adversary but to filibuster proceedings. Hence, under the said Order, any adversary who intends to object to any process must either do so by way of motion or summons. That is not all. To attenuate the penchant for frivolous objections aimed at irritating the adversary, there is the additional requirement that such an objector must set forth the grounds of the objections. Where such grounds are not set out, such an objection would not even be entertained as the motion or summons would be incompetent. A fortiori, this order was not intended to brook an oral objection. I, therefore, hold that on a proper construction, the intendment of Order 4 Rule 2, in the context of the philosophy of the new Rules of the Kwara State High Court, is that an intending objector should indicate the grounds of his objections. The sole purpose is not only to intimate the opponent of the nature of the issues to be canvassed but to satisfy the Court that such an objection is one that merits the expenditure of the Court's precious time in attending to. The effect is that the "observation" of counsel for the respondents at the lower Court on June 2, 2008 was not well-taken. The Court should have discountenanced it as being improper. In a word, the only permissible mode of raising objections under Order 4 Rule 2 is either by way of summons or motions: which processes must, clearly, set out the grounds for the objection(s). This must be so for, as Oladipo, for the appellant, rightly submitted, the auxiliary verb "may" employed in Order 4 Rule 2 (2) (supra) is mandatory. It does not admit of any discretion. Interestingly, the above provisions are in pari materia with Order 5 Rule 2 (1) and (2) of the High Court of Lagos State (Civil Procedure) Rules, 2004. Explaining the requirements of the-corresponding provisions in the above Lagos Rules, it has been said that: It is incumbent on a party complaining of irregularity to ensure the following: make the application within a reasonable time and before taking any fresh step after becoming aware of the irregularity, citing Odua Investment Co Ltd v Talabi (1997) 7 SCNJ 600; apply by way of summons or motions; state the grounds of objection in the summons or notice of motion; file written address in support of the application. See, M. Banire; A. Basiru and K. Adegoke, The Blue Book: Practical Approach to the High Court of Lagos State (Civil Procedure) Rules (Second edition) (Lagos: Ecowatch Publications (Nigeria) Limited, 2008) 55. Indeed, there is considerable force in the opinion of Aguda that: An application to set aside for irregularity must be made within a reasonable time. This rule was taken from RSC 0.2, r.2 (England) under which it has been held that it will be too late to make such an application after a year to set aside service out of the jurisdiction of the Court (Reynolds v Coleman (1987) 36 Cg. D. 453). See, T. Akinola Aguda, Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria, (2nd Edition), page 13 paragraph 3.09; also, Kalu v Odili Per CHIMA CENTUS NWEZE, JCA (Pp 24 - 27 Paras C - A)

Law Diary, and Sam Atoe & Company
16/03/24