BRITISH AMERICAN TOBACCO (INVESTMENTS) LTD V THE ATTORNEY GENERAL OF OYO STATE & ORS

BRITISH AMERICAN TOBACCO (INVESTMENTS) LTD V THE ATTORNEY GENERAL OF OYO STATE & ORS


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON FRIDAY, 24TH FEBRUARY, 2017


Appeal No: CA/I/277/2010

CITATION:

Before Their Lordships:

CHINWE EUGENIA IYIZOBA, JCA

HARUNA SIMON TSAMMANI, JCA

NONYEREM OKORONKWO, JCA


BETWEEN

BRITISH AMERICAN TOBACCO (INVESTMENTS) LTD
(APPELLANT)

AND

THE ATTORNEY GENERAL OF OYO STATE
ENVIRONMENTAL RIGHTS ACTION
BRITISH AMERICAN TOBACCO (NIGERIA) LTD
INTERNATIONAL TOBACCO COY LTD
BRITISH AMERICAN TOBACCO PLC
(RESPONDENTS)


PRONOUNCEMENT


A. ACTION
1. Writ of Summons – The procedure involved in initiating a suit by a writ of summons
How to initiate an action by a writ of summons

The area of discord in this appeal will be better appreciated by a clear understanding of how a suit is initiated by writ of summons. The Plaintiff usually files the writ in the Registry of the Court with an application that the writ be issued. Before such a writ can properly commence an action, it must be issued by the Court in line with the provisions of Order 5 Rule 1. Until the writ of summons is issued by the Registrar, it remains dormant in the Registry. That dormant writ in the Registry in my view is quite a different process from one which has been issued by the Registrar. If the writ issued by the Registrar was irregularly issued, it could be set aside. But this in my opinion does not affect the writ lying in the Registry as that can again now be properly issued. Per IYIZOBA, JCA. read in context

2. Writ of Summons – The correct process of in initiating a suit by a writ of summons
How to initiate an action by a writ of summons

The correct position was well articulated in the case of Igwe Uzur & Sons (Nig.) Ltd. V. Onwuzor (2007) 4 NWLR (PART 1024) 303 @ 314 cited by learned counsel for the Appellant where the Court explained the true import of Order 5 Rule 1 and 8 of the Ebonyi State High Court (Civil Procedure) Rules which are in pari materia with Order 5 Rule 6 of the Oyo State High Court Civil Procedure) Rules.

“…I have carefully read Rules 1 and 8 of Order 5 and Form 1…. This has shown that one initiatory step in the commencement of civil proceedings in the High Court is the application made to the registrar. This is just one step. For there to be an actual commencement of proceedings, there must be another step. That is the issuance of the writ.”

As long as the writ has not been issued or if an irregularly issued writ is declared invalid, then proceedings cannot be said to have commenced. Per IYIZOBA, JCA. read in context

B. APPEAL
3. Issues for Determination – How it is compulsory for issues to arise from ground of appeal
Whether issues must be formulated from grounds of appeal

It is trite that an issue for determination must arise from a ground of appeal otherwise it will be incompetent and liable to be struck out. See Magit V. University Of Agric., Makurdi (2005) 19 NWLR (PT. 959)211; Ukiri V. Geco-Prakia (Nig) Ltd (2010) 16 NWLR (PT. 1220) 544; Wachukwu V Owunwanne (2011) LPELR-3466 (SC). Per IYIZOBA, JCA. read in context

C. PRACTICE AND PROCEDURE
4. Service of Writ of Summons – How it is mandatory for writ to be served out of jurisdiction must be done with leave of Court
Whether leave of the Court is required before issuance of a writ of summons to be served out of jurisdiction; effect of not seeking leave of Court

Order 5 Rule 6 of the Oyo State High Court (Civil Procedure) Rules provides that no writ, or notice thereof, which is to be served out of jurisdiction, shall be issued without the leave of Court. Per IYIZOBA, JCA. read in context

5. Service of Writ of Summons – The effect of non-compliance with Order 5 Rule 6 of the Oyo State High Court (Civil Procedure) Rules of 1988
Whether leave of the Court is required before issuance of a writ of summons to be served out of jurisdiction; effect of not seeking leave of Court

The observation of Aderemi JSC in Drexel (Supra) @ 437 B – C is this:

“Failure to comply with the provisions of Order 5 Rule 6 of the Oyo State High Court (Civil Procedure) Rules of 1988 is a fundamental defect that affects only the service of the writ and not the writ of summons itself. In answering issue No1 in the Appellant’s brief I say that the non-compliance with the aforesaid provision only affects the service of the writ and not the writ of summons itself.

@ 438C-D his Lordship observed:

“For all I have said above but more in particular for the reasoning and conclusion of my learned brother, Muntaka-Coomasie JSC with which I am in agreement, I declare the entire proceedings conducted at the trial Court a nullity. Consequently, the ruling of the trial Court and the decision of the Court below are hereby set side. I repeat since it is the issuance and service of the writ that are defective. I hereby again set aside same, but not the writ itself.” Per IYIZOBA, JCA. read in context

6. Service of Writ of Summons – The effect of failure to obtain leave before the issuance and service of writ of summons
Whether leave of the Court is required before issuance of a writ of summons to be served out of jurisdiction; effect of not seeking leave of Court

…Since the learned trial Judge ruled that the defendants are entitled to be discharged from the case and went on to actually discharge them, how can he somersault to rule that the names of the 1st, 2nd, 3rd, 4th and 5th Defendants cannot be struck out of this suit on ground of improper service on any of them since the writ itself has not been set aside. If they are discharged, it means there is no longer any suit pending against them and the proper step would have been to set aside the irregularly issued writ of summons. This of course would not detract from the desire of the Respondents to sue all five defendants as his original writ is still dormant in the Registry and can now be regularly and properly issued by the Registrar in order to revive the suit against the defendants. Until this is done, there is no pending suit against the defendants, the issuance of the writ and its service having been declared incompetent. The only rational thing to do in the circumstances was to set aside the irregularly issued writ of summons. Setting it aside would not affect the writ lying dormant in the Registry which can now be properly issued. In the instant case it is not only the service of the writ that was defective. The issued writ having been issued without leave was also defective. I do not think the rationale of the case of Adegoke Motors V Adesanya (1989) 3 NWLR (PT. 109) 250 is any different. There the SC made it clear that if the writ by its contents is valid, any defect in its issuance and service makes the issuance and service voidable at the instance of the defendant who complains of the non compliance. To void an irregularly issued writ means to set aside the writ because it was irregularly issued. This does not affect the valid writ of summons still pending in the Registry. It goes without saying that where the writ is regularly issued but its service defective, the Court should set aside the service and not the writ. See Owners Of The “M.V. Arabella” V. N.A.I.C. (2008) 11 NWLR (PT.1097) 182. It is quite clear from a long line of authorities that where there is a condition precedent or procedural step to be taken before the hearing of a case, failure to comply with the condition precedent is a fundamental defect which robs the Court of jurisdiction to entertain the suit. Madukolu V. Nkemdilim (1962) ALL NLR 581. In the instant appeal, failure to obtain leave before the issuance of the writ rendered both the issuance and the service of the writ null, void and of no effect. It deprived the Court of jurisdiction to entertain the suit. No proceedings can competently proceed with such irregularly issued writ. To say that it is only the service of the writ that can be set aside and not the writ itself is clearly untenable. If only service is set aside, what then? Is the same irregularly issued writ to be now properly served on the defendant? Common sense dictates that the irregularly issued writ must also be set aside. See the following cases: Nwabueze V Okoye (1988) 4 NWLR (PT.91) 665; NEPA V Onah (1997) 1 NWLR (PT. 484) 680; F.C.M.B.PLC V N.I.M.R. (2009) 16 NWLR (PT. 1169) 468; Agip (Nig.) Ltd V. Agip Petrol International (2010) 5 NWLR (PT. 1187) 348; Mtn Nigeria Communications Limited V Mrs Taibatu Babayode (2014) LPELR-23520 (CA). Per IYIZOBA, JCA. read in context

7. Service of Writ of Summons – How issuing and service of processes are distinct and when they are interrelated
Whether the issuance and service of a Court process is the same

In Adegoke Motors vs. Adesanya (1989) 5 SC116, it was held inter alia thus:

”Strictly speaking, the issuing of civil process and the service of such process should be two distinct though inter related steps in civil litigation. A writ may be valid while its service may suffer from some defect. It may also happen …that both the writ and its service are invalid. Again and strictly speaking, the issuing of civil process 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 Court – the Sheriffs and Civil Process Act Cap 189 of 1958.” Per OKORONKWO, JCA. read in context


LEAD JUDGEMENT DELIVERED BY IYIZOBA, JCA


In the High Court of Oyo State, Ibadan Judicial Division holding at Ibadan, the 1st and 2nd Respondents as Plaintiffs sued the Appellant, 3rd, 4th, 5th Respondents, and two others as Defendants in the following order:

1. BRITISH AMERICAN TOBACCO (NIGERIA) LIMITED

2. INTERNATIONAL TOBACCO LIMITED

3. BRITISH AMERICAN TOBACCO PLC

4. BRITISH AMERICAN TOBACCO (INVESTMENT) LIMITED

5. PHILIP MORRIS INTERNATIONAL

6. THE TOBACCO INSTITUTE

The 1st and 2nd Respondents/Plaintiffs claimed against the Defendants as set out above orders of mandatory injunction restraining them from marketing, publicising, distributing or putting into the stream of commerce either by themselves or through their distributors or agents, tobacco or any related tobacco products of whatever make or brand within Oyo State. The Plaintiffs also claimed special damages of about N300 billion for various actionable wrongs occasioned by the Defendants. The addresses for service on the Defendants as set out in the Statement of Claim are as follows:

For Service on:

1st Defendant

BRITISH AMERICAN TOBACCO (NIGERIA) LIMITED, PC 35 Idowu Taylor Street, Victoria Island, Lagos.

2nd Defendant

INTERNATIONAL TOBACCO LIMITED, 1 ITC Road, Off Muritala Mohammed Road, Muritala Mohammed Industrial Area, Ilorin, Kwara State.

3rd Defendant

BRITISH AMERICAN TOBACCO PLC, Globe House, 4 Temple Place, London WC2R 2PG, England.

4th Defendant

BRITISH AMERICAN TOBACCO (INVESTMENT) LIMITED, Milbank, Knowle Green, Staines, Middlesex, TW18 1DY, England.

5th Defendant

PHILIP MORRIS INTERNATIONAL, 107 Avenue de Cour, 1001 Lausanne Switzerland.

6th Defendant

THE TOBACCO INSTITUTE, 1875 I Street N.W, Suite 800 Washington DC

By motion Ex parte dated 25/05/07, learned counsel for the Plaintiffs moved the Court for leave to serve outside the jurisdiction of the Court, the originating and other processes filed in the suit on the 1st – 6th Defendants and an order directing that such service on the 3rd – 6th Defendants whose offices were outside Nigeria be effected by means of a reputable courier service. The application was duly granted by the Court on 30/05/07. After the service of the processes on the Defendants, each filed a memorandum of conditional appearance and Notice of preliminary objection or summons asking the Court to inter alia set aside the issuance and service of the writ of summons. The Appellant herein was the 4th Defendant in the lower Court and in its Notice of Summons, it prayed for the following orders:

a. An Order setting aside the Order granted by the lower Court on 30th May 2007, granting leave to serve the originating processes on the Appellant outside the jurisdiction by courier;

b. An Order striking out the name of the Appellant from the suit;

c. An Order striking out the suit against the Appellant;

d. An Order setting aside the issuance and service of the writ of summons and pleadings on the Appellant; and

e. Such further or other Orders as lower Court may deem fit to make in the circumstances.

The grounds for the Notice of Summons were as follows: a. The Order granting leave to serve the Appellant outside the jurisdiction was wrongly granted;

b. Non-compliance with the provisions of Order 5 Rule 6, 8(1) & 14 of the High Court of Oyo State (Civil Procedure) Rules 1988;

c. Non-compliance with the provisions of Order 12 Rules 15, 16 & 19 of the High Court of Oyo State (Civil Procedure) Rules 1988; and

d. Non-compliance with the provisions of Section 98 & 99 of the Sheriffs and Civil Process Act.

The application was supported by a 12 paragraph affidavit with exhibits. In opposing the application, the 1st and 2nd Respondents filed a counter affidavit. Written addresses were ordered by the Court which were duly adopted on 22/01/09. On the 22nd of June 20 0, the lower Court delivered its Ruling on the above Appellant’s Notice of Summons and other similar applications. In the said Ruling, the learned trial judge at page 380 lines 1 – 17 of the Record held as follows:

“It seems clear from decided authorities that issuance of writ of summons and service of same are distinct but inter-related. See Owners of the M.V. “Arabella v. Nigeria Agricultural Ins. Corp. (Supra) at p. 120. This is because without the writ being issued it cannot be served. The decision of the Supreme Court in Broad Bank of Nigeria Ltd v. Alhaji S. Olayiwola & Sons Ltd. & Anor (Supra) has again shown how ready the Supreme Court is to put substantial justice over and above technicality. But having regard to the circumstances and peculiarity of the present case, I am of the strong view that there was need for the Plaintiffs to ask for leave to issue the writ of summons to be served on the defendants outside the jurisdiction of Oyo State and since leave was not sought to issue the writ of summons for service outside the jurisdiction of Oyo State, as mandated by the rules, I consider the writ of summons issued against the defendants without the leave of Court as fundamentally defective.

However it was held Drexel Energy and Natural Resources & Ors. v. Trans International Bank & Ors (Supra) that failure to comply with the provisions of Order 5 Rule 6 of the Oyo State High Court (Civil Procedure) Rules of 1988 is a fundamental defect that affects only the service of the writ and not the writ of summons itself. The leave of Court is said to be a condition precedent and an additional formality without which the writ of summons will remain permanently in the Registry of the Court. Further down at page 380 line 26, the learned trial judge continued:

“The decision of Drexel Energy and Natural Resources & Ors. v. Trans International Bank & Ors(Supra) is that failure to comply with the provisions of Order 5 Rule 6 of the Oyo State High Court (Civil Procedure) Rules of 1988 is a fundamental defect that affects the service of the writ and that the non-compliance with the aforesaid provision affects the service of the writ and not the writ of summons itself. It was further held that since no leave was sought and obtained the order of the trial Court for substituted service of the writ of summons is null and void and of no legal consequence. Consequently the order granted by the Court on 30/5/2007 for substituted service of the writ of summons on the 1st to 5th defendants is null and void and of no legal consequence. It has to be set aside and is hereby accordingly set aside.

Since the failure to obtain leave of Court before the issuance of the writ of summons affects only the service of the writ of summons and not the writ of summons itself as it remains dormant in the registry of the Court, I cannot set aside the writ of summons itself as prayed by the defendants.

That ground of application of each of the defendants fails.”

Dissatisfied with the part of the Ruling refusing to set aside the writ of summons, the Appellant appealed to this Court by a Notice of Appeal dated 06/07/10 with one ground of appeal. The parties filed and exchanged briefs of argument. The Appellant’s brief settled by Mrs Funke Adekoya SAN is dated and filed on the 18th day of November 2010. The 1st and 2nd Respondents’ brief of argument was settled by Babatunde Irukera and Bashiru A. Ramoni of Simmons Cooper Partners. It is dated and filed on the 3rd day of February, 2011. Appellant’s Reply brief is dated and filed on the 7th day of March, 2011 but deemed properly filed and served on 17/01/17. All the briefs were duly adopted on the 18th day of January, 2017. Learned counsel for the Appellant in her brief formulated a sole issue for determination as follows:

“Whether the lower Court erred in law when it held that failure to obtain the prior leave of Court to issue the writ of summons served on the Appellant affected only service of the writ of summons and not the writ of summons itself as it remains dormant in the registry of the Court”.

Learned counsel for the Respondents in their brief formulated the following sole issue for determination.

Was the trial Court right to have relied on the Supreme Court decision in Drexel Energy and Natural Resources Ltd V. Trans International Bank Ltd (2008) 18 NWLR (pt 1119) 388 and hold that the Writ issued by the 1st and 2nd Respondents should remain dormant in the registry of the Court as only the issuance and service of the Writ were affected and not the Writ itself?

The 1st and 2nd Respondent’s sole issue does not appear to have arisen from the sole ground of appeal in the Notice of Appeal. The ground without the particulars reads as follows:

The learned trial Judge erred in law when he held that “Since the failure to obtain leave of Court before the issuance of the writ of summons affects only the service of the writ of summons and not the writ of summons itself as it remains dormant in the Registry of the Court, I cannot set aside the writ of summons itself as prayed by the defendants. That ground of application of each of the defendants fails.”

It is obvious that the issue formulated by the 1st and 2nd Respondents did not arise from the above ground of appeal. It is trite that an issue for determination must arise from a ground of appeal otherwise it will be incompetent and liable to be struck out. See Magit V. University Of Agric., Makurdi (2005) 19 NWLR (PT. 959)211; Ukiri V. Geco-Prakia (Nig) Ltd (2010) 16 NWLR (PT. 1220) 544; Wachukwu V Owunwanne (2011) LPELR-3466 (SC)

While I may not go the length of striking out the Respondents’ sole issue, I shall in the determination of the appeal adopt the issue as formulated by the Appellant and treat the arguments of the Respondents on their incompetent issue as their response to the arguments of the Appellant.

APPELLANT’S ARGUMENTS:

Learned counsel referred to Order 1 Rule 1 of the High Court of Oyo State (Civil Procedure) Rules on commencement of actions in Oyo State by a writ of summons and Order 5 Rule 1 and submitted relying on Igwe Uzur & Sons (Nig.) Ltd. V. Onwuzor (2007) 4 NWLR (PART 1024) 303 that it is the issuance of the writ that brings the suit to life. Learned counsel opined that if a writ is not issued, proceedings cannot be said to have commenced. He submitted that Order 5 Rule 6 makes the prior leave of the Court a condition precedent to the issuance of a writ to be served on a Defendant outside the jurisdiction of the Court. Counsel citing a long list of authorities including Nwabueze V Okoye (1988) 4 NWLR (PART 91) 665 AND NEPA V Onah (1997) 1 NWLR (PART 484) PAGE 680 submitted that failure to comply with this condition precedent is a fundamental defect which renders both the writ and the proceedings purportedly commenced upon it null, void and of no effect. He submitted that the lower Court ought to have held that the failure to obtain the Court’s leave to issue the writ served upon the Appellant should result in the writ being set aside. Learned counsel submitted that the judgment of Aderemi JSC in Dr X L Energy And Natural Resources & Ors. Vs. Trans International Bank & Ors. (2008) 18 NWLR (PART 1119) PAGE 388 which the lower Court cited and relied upon was not, in fact, the lead judgment delivered in that case. He opined that the lead judgment delivered by Muntaka-Coomasie JSC, with which Musdapher JSC, Oguntade JSC and Ogbuagu JSC concurred did not deviate from the principle enunciated in NWABUEZE V OKOYE (SUPRA) that failure of the Respondent to seek and obtain the leave of the Court to issue and serve the writ of summons outside the jurisdiction of the Court amounts to fundamental defect which renders the issuance and the service of the said writ of summons outside the jurisdiction invalid, null and void. On the consequences of the invalidity of a writ of summons, learned counsel submitted relying on several authorities that when a thing is a nullity it is as if the thing never existed; it binds no one and is incapable of giving rise to any right or obligation under any circumstances. Counsel submitted that the writ of summons in the instant appeal was null and void and that the lower Court ought to have set it aside. He submitted that the lower Court’s insistence that the Defendants including the Appellant, remained parties to the suit imply that a suit is still in existence. He submitted that a void writ cannot be the basis of proceedings before the Court; and that since the 1st and 2nd Respondents did not obtain the leave of the Court before the issuance of the writ, the writ is void and cannot be the basis of any proceedings in Court. He opined that the lower Court ought to have struck out the name of the Appellant from the suit. Learned counsel urged us to set aside

(1) That part of the Ruling of the lower Court wherein it was held that non-compliance with Order 5 Rule 6 of the Rules affects only the service of the writ and not the writ itself;

(2) The writ of summons filed by the 1st and 2nd Respondents and purportedly served upon the Appellant;

(3) To strike out the name of the Appellant from the suit; and (4) to strike out the suit against the Appellant.

RESPONDENTS’ ARGUMENTS:

Learned counsel in his brief submitted that the trial Court rightly followed Drexel’s Case. He argued that the judgment being a SC judgment, a lower Court is bound by it based on the doctrine of stare decisis. Learned counsel submitted that the facts of the present appeal are similar to the facts of Drexel and that the trial judge certainly did not err in concluding just as the SC did in Drexel that the Respondents’ Writ should remain dormant in the registry of the Court. Counsel opined that the Appellant’s contention that the lower Court misapplied the concurring opinion of Aderemi JSC in DREXEL which differed from the lead judgment is misconceived. Counsel contended that both the lead and concurring judgment of the Supreme Court are the decision of the Court and the trial Court is bound to follow it so far as the facts and issues raised therein are materially similar. Counsel submitted that in the Appellant’s Summons there was no request that the writ be set aside and that the Court cannot grant a relief not asked for. Counsel opined that this formed the basis for the Trial Court’s refusal to strike out the suit and the name of the Appellant. Counsel called our attention to the view of the trial judge at page 383 of the Record that:

“The names of the 1st, 2nd, 3rd, 4th and 5th Defendants cannot be struck out of this suit on ground of improper service on any of them since the writ itself has not been set aside. They remain parties in the suit as stated on the writ of Summons. But the case cannot proceed further against any of them since the condition precedent to the service of the writ of Summons outside the jurisdiction of this Court was not complied with. The case will be in abeyance.”

Learned counsel submitted that the effect of the above view of the trial Court is that the Writ is yet to be issued since leave to issue for service outside jurisdiction was not sought from the trial Court; that the 1st and 2nd Respondents reserve the prerogative to determine who should be the Defendants in their suit; that striking out the Appellant’s name would mean that the Court is usurping the prerogative of the 1st and 2nd Respondents to sue whosever they have grievances against. Counsel further submitted that assuming without conceding that the Trial Court’s reasoning was wrong in holding that the Writ cannot be set aside because it is yet to be issued but rightly set aside the issuance and service of the Writ on the Appellant, the reasoning of the Trial Court that the Writ itself cannot be set aside was right since the Writ is deemed not to have been issued; hence there is nothing to set aside. Learned counsel urged us to so hold and to dismiss the appeal as lacking in merit.

APPELLANTS REPLY BRIEF:

Learned counsel in the Reply brief submitted that contrary to the contention of learned counsel for the 1st and 2nd Respondents that the judgment of Aderemi JSC did not come to the same conclusion as the lead judgment of Muntaka-Coomasie JSC. Counsel submitted that Muntaka-Coomasie JSC held as follows:

“…failure of the Respondent to seek and obtain the leave of the Court or the judge to issue and serve the Writ of Summons outside the jurisdiction of the Court amounts to

(a) Fundamental defect and not a mere irregularity which can be cured, hence I have no hesitation declaring both the issuance and the service of the said writ of summons outside the jurisdiction as invalid.

… For the avoidance of any possible doubt, the writ of summons and service of same outside the jurisdiction of the Oyo State High Court without the leave of the Oyo State Court are bad and invalid.” (Emphasis added)

Counsel submitted that Aderemi JSC, on the other hand, held that not obtaining the prior leave of Court before issuance affects service of the writ and not the writ itself. He opined that a decision that declares a writ to be bad and another that declares that the same writ is valid cannot be said to have reached the same conclusion. Counsel concluded that since the judgment of Aderemi JSC in Drexel contradicts the lead judgment in that case, it is in fact a dissenting judgment and was not binding on the lower Court.

On the contention of learned counsel for the Respondents that the Appellant did not ask for an order setting aside the writ at the lower Court, learned counsel submitted that the decision of the Supreme Court in Nwabueze V. Okoye (1988) 4 NWLR (PART 91) PAGE 655 AND NEPA V. Onah (1997) I NWLR (PART 484) PAGE 680 are very clear as to what ought to happen to a writ that has been defectively issued, such a writ ought to be set aside. Counsel submitted that the trial judge having declared that the writ of summons issued without the prior leave of Court was defective, the Court ought to have made a consequential order setting aside the writ.

RESOLUTION:

The area of discord in this appeal will be better appreciated by a clear understanding of how a suit is initiated by writ of summons. The Plaintiff usually files the writ in the Registry of the Court with an application that the writ be issued. Before such a writ can properly commence an action, it must be issued by the Court in line with the provisions of Order 5 Rule 1. Until the writ of summons is issued by the Registrar, it remains dormant in the Registry. That dormant writ in the Registry in my view is quite a different process from one which has been issued by the Registrar. If the writ issued by the Registrar was irregularly issued, it could be set aside. But this in my opinion does not affect the writ lying in the Registry as that can again now be properly issued. It is this situation as simple as it is that led to the confusion in this appeal. The learned trial judge was apparently willing to misinterpret the view of Aderemi in DREXEL because of the confusion as to what should happen to the suit filed by the 1st and 2nd Respondents if the writ of summons was set aside. Would that mean they can no longer proceed with their suit? That explains his view that striking out the Appellant’s name would mean that the Court is usurping the prerogative of the 1st and 2nd Respondents to sue whosoever they have grievances against. The correct position was well articulated in the case Of Igwe Uzur & Sons (Nig.) Ltd. V. Onwuzor (2007) 4 NWLR (PART 1024) 303 @ 314 cited by learned counsel for the Appellant where the Court explained the true import of Order 5 Rule 1 and 8 of the Ebonyi State High Court (Civil Procedure) Rules which are in pari materia with Order 5 Rule 6 of the Oyo State High Court (Civil Procedure) Rules.

“…I have carefully read Rules 1 and 8 of Order 5 and Form 1…. This has shown that one initiatory step in the commencement of civil proceedings in the High Court is the application made to the registrar. This is just one step. For there to be an actual commencement of proceedings, there must be another step. That is the issuance of the writ.”

As long as the writ has not been issued or if an irregularly issued writ is declared invalid, then proceedings cannot be said to have commenced. To that extent, the reliefs prayed for by the Appellant for an Order striking out the name of the Appellant from the suit and an Order striking out the suit against the Appellant were uncalled for.

Order 5 Rule 6 of the Oyo State High Court (Civil Procedure) Rules provides that no writ, or notice thereof, which is to be served out of jurisdiction, shall be issued without the leave of Court. The address of the Appellant who is 4th Defendant in the suit is:

BRITISH AMERICAN TOBACCO (INVESTMENT) LIMITED Milbank, Knowles Green, Staines, Middlesex, TW18 1DY, England.

It is evident that the Appellant resides outside the jurisdiction of Oyo State High Court. Both sides are in agreement on this. Prior leave of the Court is a condition precedent to the issuance of a writ to be served on the Appellant. The learned trial judge in the judgment conceded to this and had no difficulty in holding the writ of summons served on the Appellant without leave of the Court fundamentally defective. The confusion arose as to the effect of the declaration of the writ of summons fundamentally defective. The learned trial judge to my mind misinterpreted the view of Aderemi JSC in his concurring judgment in Drexel Energy And Natural Resources & Ors. Vs. Trans International Bank & Ors (Supra) that writ of summons issued improperly cannot be struck out. This error as I said earlier arose out of the confusion of viewing the defectively issued writ of summons as the same as the writ of summons in the Registry filed by the Respondents. The observation of Aderemi JSC in Drexel (Supra) @ 437 B – C is this:

“Failure to comply with the provisions of Order 5 Rule 6 of the Oyo State High Court (Civil Procedure) Rules of 1988 is a fundamental defect that affects only the service of the writ and not the writ of summons itself. In answering issue No1 in the Appellant’s brief I say that the non-compliance with the aforesaid provision only affects the service of the writ and not the writ of summons itself.

@ 438C-D his Lordship observed:

“For all I have said above but more in particular for the reasoning and conclusion of my learned brother, Muntaka-Coomasie JSC with which I am in agreement, I declare the entire proceedings conducted at the trial Court a nullity. Consequently, the ruling of the trial Court and the decision of the Court below are hereby set side. I repeat since it is the issuance and service of the writ that are defective. I hereby again set aside same, but not the writ itself.”

It is very evident that the writ his Lordship had in mind was the original writ of summons in the Registry; certainly not the irregularly issued writ of summons. This view is further fortified by his lordship’s insistence that it is the issuance and service of the writ that are defective. The suit could not possibly have continued on the defective writ of summons issued, the proceedings of which had been declared null and void. The Registry would have to issue a fresh writ that is in compliance with the law. The impracticability of the refusal to set aside the irregularly issued writ of summons is brought to the fore by the inconsistency of the trial Judge’s views in his Ruling. At P. 382 of the Record his Lordship observed:

“The leave to serve the defendants outside the jurisdiction of this Court granted by this Court on 30/5/2007 having been set aside, it follows that there has been no proper service on any of the defendants in this case. The consequence is that the defendants have not been properly brought to the Court and they are entitled to be discharged from this case as prayed by them and they are discharged. Any proceeding in this Court without proper service would be rendered null and void,and of no effect. It will be an exercise in futility. No reasonable Court would embark on such an unworthy and useless exercise. However following the decision in Drexel Energy and Natural Resources & Ors. vs. Trans International Bank & Ors (Supra) the names of the 1st, 2nd, 3rd, 4th and 5th Defendants cannot be struck out of this suit on ground of improper service on any of them since the writ itself has not been set aside. They remain parties in the suit as stated on the writ of Summons. But the case cannot proceed further against any of them since the condition precedent to the service of the writ of Summons outside the jurisdiction of this Court was not complied with. The case will be in abeyance.”

Since the learned trial Judge ruled that the defendants are entitled to be discharged from the case and went on to actually discharge them, how can he somersault to rule that the names of the 1st, 2nd, 3rd, 4th and 5th Defendants cannot be struck out of this suit on ground of improper service on any of them since the writ itself has not been set aside. If they are discharged, it means there is no longer any suit pending against them and the proper step would have been to set aside the irregularly issued writ of summons. This of course would not detract from the desire of the Respondents to sue all five defendants as his original writ is still dormant in the Registry and can now be regularly and properly issued by the Registrar in order to revive the suit against the defendants. Until this is done, there is no pending suit against the defendants, the issuance of the writ and its service having been declared incompetent. The only rational thing to do in the circumstances was to set aside the irregularly issued writ of summons. Setting it aside would not affect the writ lying dormant in the Registry which can now be properly issued. In the instant case it is not only the service of the writ that was defective. The issued writ having been issued without leave was also defective. I do not think the rationale of the case of Adegoke Motors V Adesanya (1989) 3 NWLR (PT. 109) 250 is any different. There the SC made it clear that if the writ by its contents is valid, any defect in its issuance and service makes the issuance and service voidable at the instance of the defendant who complains of the non-compliance. To void an irregularly issued writ means to set aside the writ because it was irregularly issued. This does not affect the valid writ of summons still pending in the Registry. It goes without saying that where the writ is regularly issued but its service defective, the Court should set aside the service and not the writ. See Owners of the “M.V. Arabella” V. N.A.I.C. (2008) 11 NWLR (PT.1097) 182.

It is quite clear from a long line of authorities that where there is a condition precedent or procedural step to be taken before the hearing of a case, failure to comply with the condition precedent is a fundamental defect which robs the Court of jurisdiction to entertain the suit. Madukolu V. Nkemdilim (1962) ALL NLR 581. In the instant appeal, failure to obtain leave before the issuance of the writ rendered both the issuance and the service of the writ null, void and of no effect. It deprived the Court of jurisdiction to entertain the suit. No proceedings can competently proceed with such irregularly issued writ. To say that it is only the service of the writ that can be set aside and not the writ itself is clearly untenable. If only service is set aside, what then? Is the same irregularly issued writ to be now properly served on the defendant? Common sense dictates that the irregularly issued writ must also be set aside. See the following cases: Nwabueze V Okoye (1988) 4 NWLR (PT.91) 665; NEPA V Onah (1997) 1 NWLR (PT. 484) 680; F.C.M.B.PLC V N.I.M.R. (2009) 16 NWLR (PT. 1169) 468; Agip (Nig.) Ltd V. Agip Petrol International (2010) 5 NWLR (PT. 1187) 348; Mtn Nigeria Communications Limited V Mrs Taibatu Babayode (2014) LPELR-23520 (CA).

Learned counsel for the 1st and 2nd Respondents had submitted that in the Appellant’s Summons there was no request that the writ be set aside and that the Court cannot grant a relief not asked for. This view is clearly misconceived. Having declared the irregularly issued writ and the service defective, the consequential order to make is an order setting aside the irregularly issued writ and the service. The Appellants however in their relief (d) prayed for an Order setting aside the issuance and service of the writ of summons and pleadings on the defendant. What does it imply to set aside the issuance of the writ? It simply means to set aside the irregularly issued writ.

In the circumstances, this appeal is meritorious. It is hereby allowed. The part of the Ruling of the lower Court refusing to set aside the irregularly issued writ of summons is hereby set aside. In its place the issuance of the writ and its service on the Appellant are hereby set aside. This is without prejudice to the extant writ of summons still pending in the Registry of the Court which can now be regularly issued. I make no order as to costs.

TSAMMANI, JCA

I had the privilege of reading in advance the judgment delivered by my learned brother, Chinwe Eugenia Iyizoba, JCA. I agree with the reasoning and conclusion reached by my learned brother.

In the case British American Tobacco Pic v. The Attorney- General of Oyo State & 4 Ors, unreported Appeal No: CA/I/278/2010, Ibadan Division, delivered on the 13th day of November, 2015, a case in pari materia with the facts of this case I said at pages 29 – 30 of the judgment as follows:

“It is therefore clear that, in consonance with the decision of the other Justices of the Supreme Court that sat on the panel, Aderemi, JSC, also set aside the issuance of the Writ of Summons and the service thereof. I need to reiterate that, none of the Justices that sat on the panel in D.E.N.R. Ltd v. Trans International Bank Ltd (supra) ordered that the entire Writ must be set aside. What was ordered to be set aside were the issuance of the Writ and its service. See per Muntaka- Coomassie, JSC at page 421 Paragraphs B – C, Musdapher, JSC at page 421 Paragraphs F – G, Ogbuagu, JSC at page 431 Paragraph C and Aderemi, JSC at page 438 paragraph D. Since it was the issuance of the Writ of Summons and the service of same that were set aside, it invariable means that the unissued Writ filed in the Court Registry is to hibernate until all requirements for its issue and service as provided under the High Court Rules are duly satisfied. Until then, the Court would have no competence and thus jurisdiction to hear and determine the matter based on such incompetent process. I think that is the essence of the statement of Aderemi, JSC in the D.E.N.R. Ltd case (supra).

At this juncture, I only need to restate that, where by a rule of Court, the doing of an act or the taking of a procedural step is a condition precedent to the hearing of a case, such a rule must be strictly followed and obeyed. Consequently, noncompliance with such conditions precedent is not a mere technical rule of procedure. It goes to the root of the case and robs the Court of jurisdiction to hear and determine the matter on such incompetent process. It therefore means that where a statute or rule of Court has provided a procedure for the commencement of an action, any failure to follow that procedure will render the suit commenced upon such incompetent process, a nullity.

In the instant case, Order 5 Rules 6 and 14 of the Oyo State High Court (Civil Procedure) Rules stipulate that no Writ which or notice of which is to be served out of the jurisdiction shall be issued without leave of the Judge or Court. Thus, for a party to comply with the provision of those Rules, he must first apply for the requisite leave to issue the Writ out of jurisdiction before the issuance and service of the Writ of Summons. That was not done in the instant case. It is thus my view, which I hold, that the Writ of Summons was not regularly issued as a Writ meant for service out of jurisdiction. That amounted to a fundamental defect which touches on the root and thus competence of the Writ issued and served on the Appellant; and thus fatal. I therefore hold that, the issuance and invariably service of the Writ was not done by due process of law and upon fulfillment of conditions precedent to the exercise of jurisdiction by the trial Court. The learned trial Judge was therefore in error when he refused to set aside the issuance of the Writ of Summons on the Appellant. See also Agip (Nig.) Ltd v. Agip Petrol International (2010) 5 NWLR (pt.1187), p.348.”

I adopt my views expressed above in this appeal. In that respect, I hereby agree with my learned brother that this appeal has merit. It is hereby allowed in the terms as expressed in the lead judgment. I abide by the consequential orders made in the lead judgment including the order on costs.

OKORONKWO, JCA

I have had the privilege of reading in advance the draft of the judgment just delivered by my lord Chinwe Eugenia Iyizoba. I agree with the reasoning and conclusions drawn.

In Adegoke Motors vs. Adesanya (1989) 5 SC116, it was held inter alia thus:

”Strictly speaking, the issuing of civil process and the service of such process should be two distinct though inter related steps in civil litigation. A writ may be valid while its service may suffer from some defect. It may also happen …that both the writ and its service are invalid. Again and strictly speaking, the issuing of civil process 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 Court – the Sheriffs and Civil Process Act Cap 189 of 1958.”

This appeal and its judgment clearly exemplifies that possibility of both writ and service being defective.