CASE SUMMARY OF:
Adegoke Motors Ltd. v. Dr. Babatunde Adesanya & Anor (1989) - SC
- Issuance of writ;
- Civil process;
Adegoke Motors Ltd.
1. Dr. Babatunde Adesanya;
2. Mr. F.o. Odesanya.
(1989) NWLR (Pt.109) 250;
LEAD JUDGEMENT DELIVERED BY:
- Oputa, J.S.C.
* FOR THE APPELLANT
- Kola Awodein.
* FOR THE RESPONDENT
- K.O. Tinubu.
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FACT (as relating to the issues)
The defendant (Appellant) company through its solicitors Bamidele Aiku & Co. of 22, Dugbe Market Road, Abusi Green House, Ibadan entered an appearance in the action in September, 1986, after the writ of summons and the statement of claim had been served on it at Ibadan. It is noteworthy that the writ of summons did not carry any return date. Seeing that the defendant filed no statement of defence to the plaintiffs' statement of claim, the latter in February 1987 applied by summons for an order for final judgment against the defendant as per their writ of summons in default of a statement of defence. The return date on the summons for final judgment in default of defence under Order 10 Rules, 2 and 7 of the High Court of Lagos State (Civil Procedure) Rules 1972 was 9th March 1987. The summons for final judgment was duly served on the defendant company through its solicitors Bamidele Aiku & Co., Ibadan.
On the return date, 9/3/87, there was no appearance for the defendant. On the same day, the learned trial Judge entered judgment for the plaintiffs for general and special damages on their claim against the defendant. Nothing turns on the quantum of damages in this appeal. Thereafter the defendant moved the trial court for an order setting aside the judgment in default of defence. The application failed. Nothing turns on this application in this appeal. Thereafter the defendant appealed against the whole of the decision of 9/3/87 to the Court of Appeal, Lagos Division, contending inter alia, that the learned trial Judge had no jurisdiction to enter judgment for the plaintiffs, because of non compliance with the provisions of sections 97 and 99 of the Sheriffs and Civil Process Act Cap. 189 Laws of the Federation of Nigeria 1958. The appeal failed.
The Appeal by the Appellant is to question and for the Supreme Court to declare the writ served on the Appellant (the Defendant at the trial court) null for non compliance with the sections 97 and 99 of the Sheriffs and Process Law Cap. 189 Laws of the Federation of Nigeria 1958.
1. Whether or not the Writ that originated the present action leading up to this appeal was void for non-compliance with Sections 97, 98 and 99 of the Sheriffs and Civil Process Act Cap 189 of 1958?
HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED WITH N500 COST]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. To rely on any pronouncements or on the decision in Nwabueze's case supra in a subsequent case, it is incumbent on counsel so relying to show that the facts of his case are similar to those of Nwabueze's case and (this is very important) that he took promptly the necessary steps to question the validity of the Writ or the validity of its service or both as was done in Nwabueze v. Okoye (supra).
ii. In this case, a Writ of Summons (valid or invalid is immaterial at this stage) was served on the defendants. The defendants could, if they wanted to either:- (i) enter an appearance on protest or; (ii) enter a conditional appearance and; (iii) then file a motion asking the Court seised of the matter - the Ikeja High Court, to set aside the purported Writ and the purported service on them on the ground of essential invalidity of both Writ and Service. The defendants did not do this. Rather they entered an appearance through their Solicitors Aiku and Co. This implied that they wanted and intended to contest the case of the Plaintiffs.
Order 2 Rule 4 of the Lagos State High Court Rules provides: "Subject to the provisions of Part VII of the Sheriffs & Civil Process Act no writ of summons for service out of jurisdiction... shall be issued without the leave of the Court or Judge in Chambers."
Nnaemeka-Agu, J.S.C., expressed similar views in a recent case Niger Progress Ltd. v. North East Line Corporation (1989) 3 NWLR (Pt.107) 68 at p. 100 viz: "In the instant case whether or not the writ was duly indorsed... is not only new, but one which should have been resolved one way or the other in the Court of trial. It ought to have occurred to learned counsel that this Court cannot make any pronouncement on the endorsement or Service of the Writ when such an issue was never placed before the lower Court ... even a notice to raise a point not raised in the Court below ... can never serve as a licence for introducing new and separate issues."
Per Oputa, JSC. in Chief Gani Fawehinmi v Nigerian Bar Association & ors. (No.2) (1989) 2 N.W.L.R. (Pt.105) 558 at page 650. "Our law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the Courts in like or similar cases. The facts of two cases must either be the same or at least similar before the decision in the earlier case can be used in a later case, and even there, merely as a guide - What the earlier decision establishes is only a principle, not a rule. Rules operate in an all or nothing dimension. Principles do not. They merely incline decisions one way or the other. They form a principium or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand."
Sir James Bacon, V.C., said in Green's Case (1874) L.R. 18 Eq C.A. 428:- "In the judgments which Judges pronounce, this is inevitable, that having their minds full, not only of the cases before them, but of all the principles involved in the cases which have been referred to, it very often happens that a Judge, in stating as much as is necessary to decide the case before him, does not express all that may be said upon the subject. That leaves the judgment open sometimes to misconstruction, and enables ingenious advocates by taking out certain passages, to draw conclusions which the Judge never meant to be drawn from the words he used."
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Again and strictly speaking, the issuing of civil process (here Writ of Summons) should be the concern of the High Court Law and the High Court Rules while the Service of such process will be referable to "the Law made for the Service of civil process of the Courts" - the Sheriffs and Civil Process Act Cap 189 of 1958. The reality of the present position is that the High Court of Lagos (Civil Procedure) Rules not only made provision for Service but also incorporated by direct reference, the Sheriffs and Civil Process Act. - Oputa, JSC. Adegoke v. Adesanya (1989)
Now whether or not the leave of the Judge in Chambers was obtained in any particular case is a question of fact which should be alleged in a challenge to the validity of the Writ. Such challenge should be made at the High Court stage so that it will form an issue in the case. Thus the trial Court will consider the issue and our appellate Courts will then review the decision of the High Court thereby fulfilling their role as appellate Courts. Also if a Writ is not properly indorsed as required by Section 97 of the Sheriffs and Civil Process Act, such a writ should be properly tendered and made an exhibit in the case. When the case goes on appeal, the appellate Court will then easily refer to the exhibit and receive submissions on it. - Oputa, JSC. Adegoke v. Adesanya (1989)
My simple answer is that it is not part of the jurisdiction or duties of this Court to go on looking for imaginary conflicts. We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human-beings, capable of erring. It will certainly be short sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be over-ruled. This Court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error. Learned counsel has not asked us to over-rule either Skenconsult or Ezomo supra. If that was what was wanted, the Briefs should have said so specifically and the Chief Justice of the Federation would have gladly empanelled a Full Court. - Oputa, JSC. Adegoke v. Adesanya (1989)
Dicta should not be taken and read out of context. - Obaseki, JSC. Adegoke v. Adesanya (1989)
It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court unnecessary isolation from the facts and surrounding circumstances those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts. - Oputa, JSC. Adegoke v. Adesanya (1989)
Generally, an appeal is regarded as a continuation of the original suit rather than the inception of a new action. Because of this, in an appeal, parties are normally confined to their case as pleaded in the Court of first instance. They are not allowed to make a new and different case on appeal. They are not allowed to raise in such appeal new Issues without the express leave of Court or to proffer new evidence without such leave. An appeal, being a judicial examination by a higher Court of the decision of an inferior Court, it follows that such examination should normally and more appropriately be confined to the facts and issues that came before the inferior Court for decision. - Oputa, JSC. Adegoke v. Adesanya (1989)
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