"...It seems to me from the above facts, that this case has once again brought to fore the important distinction between issuance of a writ and service of a writ - even though the term "
Issuance and service of writ are commonly used in legal parlance strictly speaking, issuance of a writ and service of same are distinct legal process in Civil litigation though they are both invoked in the process of putting the other party on notice. See. AGIP (NIGERIA) LTD & 8 ORS VS. CHIEF C. EZENDU & 9 ORS (2010) 1 SC (Pt. 11) 98. The issuance of civil process and service of the same are distinct though inter - related steps in Civil Litigation. See also: OWNERS OF M.V. ARABELLA VS. NIG. AGRIC INSURANCE CORP (2008) 4 - 5 SC (Pt. 11 ) 189, ADEGOKE MOTORS VS. ADESANYA (1989) 5 SC 116. From the decided cases, there seems to be two or perhaps three possible situations. a) A Writ may be valid but its service may be defective. b) A Writ may be invalid but it's service may seem proper. c) A Writ may be invalid and its service may also be defective. In the instant case, the first defect in the 1st Respondent Writ of Summons is that the name and the address of the Appellants are not indicated in the Writ of Summons. Secondly, the address for service of the 1st Appellant the 2nd Appellant required leave ex parte for substituted service from the trial Court.
In accordance with the provision of Order 7 Rule 5 of Kwara State High Court (Civil Procedure) Rules 2005. In the instant case, the 1st Respondent did not obtain the leave and/or Order of Court for substituted service to serve the 1st Appellant though the 2nd Appellant at R.C.C.G. building opposite Gaa- Akanbi Micro Finance Bank, Gaa- Akanbi, Ilorin, Kwara State. The failure to indicate the addresses of the Appellants on the Writ coupled with the fact that the 1st Appellant was to be served the 2nd Appellant at Ilorin without an Order of substituted service is fatal to the case of the Respondent. See. OWODUNNI VS. REGISTERED TRUSTEES, CELESTIAL CHURCH OF CHRIST (2008) ALL FWLR (Pt. 42) 833.
Perhaps a more important factor which is against the 1st Respondent in this case is that by its own processes the 1st Appellant ordinarily resides in Igbeti, Oyo State outside the jurisdiction of the Court. The revelation in the Statement of Claim and other processes of the 1st Respondent that the Appellant resides in Igbeti, Oyo State outside the jurisdiction of trial Court marks out this case as peculiar and counter the argument of the 1st Respondent that the Appellants were to be served in Ilorin within the jurisdiction of the Court.
In OGUNSOLA VS. A.P.P. (2004) ALL FWLR (Pt.207) 727 AT 729, the stressed the importance of the requirement to seek leave of Court to issue and serve Court process on defendant outside jurisdiction as follows: "Because physical presence of a defendant is usually required to assume jurisdiction over a person, civil rules of procedure often require that a plaintiff issuing a Writ, originating process or petition to be served on a defendant or other party who does not have a physical, residence or business presence within the territorial jurisdiction of the Court require leave of that Court before the Writ or other process can validly issue.
By this process the Court is able to satisfy itself before granting the leave that the circumstances warranting the issue of such Writ or other process are not such as to be vexatious or oppressive to the defendant or other party." See also MOBIL NIG PLC VS. PAM (2000) 1 NWLR (Pt. 657) 506, Furthermore, in the case of D.E.N.R. LTD VS. TRANS INTERNATIONAL BANK LTD. (2009) ALL FWLR (Pt. 456) 1823 AT 1826, 1850, 1851, the Supreme Court held that it is mandatory to obtain leave of Court for issuance and service of Writ of Summons and other processes on a defendant who is resident outside Court's jurisdiction.
The Court stated thus: "Where the address of a defendant is outside the jurisdiction of the trial Court's jurisdiction, it is a condition precedent for the exercise of Court's jurisdiction over him that a valid Writ of Summons must be issued and served on him. The issuance of such Writ and its service on the defendant can only be valid where the leave of the High Court was sought and obtained for the issuance of the said Writ of Summons and for its service on the defendant. In the instance case, the Plaintiffs failed to obtain leave of Court to issue and serve the Writ of Summons outside the jurisdiction of the Court, the Writ was therefore invalid and the trial Court erred by not declaring it so." See also: N.E.P.A. VS. OBAYANGBONA (1997) 1 N.W.L.R. (Pt. 484) 680, INTRA MOTORS (NIG) PLC. VS. AKINLOYE (2001) 6 N.W.L.R. (PT. 708) 61.
In the instant case, since it is apparent on the record through the statement of claim and other process filed by the 1st Respondent that the 1st Appellant indeed resides in Igbeti, Oyo State outside the jurisdiction of the trial Court, the 1st Respondent ought to have issued a concurrent originating process under the provision of Order 6 Rules 10 of the Kwara State High Court (Civil Procedure) Rules 2005 it reads: "An originating process for service within jurisdiction may be issued and marked as a concurrent originating process for service out of the jurisdiction, and an originating process for service out of jurisdiction may be issued and marked as a concurrent originating process with one for service within jurisdiction." See also, TOUTON VS. GRIMALDI COMPAGNIA DI NAVIGAZIONI S.P.A (2011) ALL FWLR (PART 595) 286 AT 290.
In all of these, it goes without saying that the failure to commence an action with a valid Writ of summons goes to the root of the case and any order emanating from such proceeding is liable to be set aside as incompetent and a nullity. See also: OYEWOPO VS. ARANSIOLA (2014) ALL FWLR (Pt. 719) 1192 AT 1193, 1202, KIDA VS. OGUNMOLA (2006) ALL FWLR (Pt. 327) 402, NIGERIA UNIVERSAL BANK LTD VS. SAMBA PETROLEUM COMPANY LTD (2006) 12 NWLR (Pt. 993) 98. Indeed, issuance and service of Writ of Summons is the foundation of the proceeding and very fundamental to the assumption of jurisdiction by a Court of Law. In the case of UNITED BANK FOR AFRICA PLC VS. MOHAMMED (2012) ALL FWLR (Pt. 649) 1079 AT 1101, the Court held the Writ served on the Appellant without the required leave of Court being obtained is invalid and the Court erred by assuming jurisdiction. See also: PANALPINA WORLD TRANS HOLDING AG VS. C.C LTD (2011) ALL FWLR (Pt. 600) 1258 AT 1261 The cases of: S.C.E.N VS. NWOSU (2008) ALL FWLR (Pt. 413) 1399; ORI - NI - OWO VS. AFRICAN DEVELOPMENT CORPORATION (1991) 2 NWLR (Pt. 171) 38;CHIAZOR VS. TUKUR (2007) ALL FWLR (Pt. 354) 394 and PANACHE COMMUNICATION VS. AIKHOMU (1994) 2 NWLR (Pt. 327) 420 AT 431 cited in support by the learned Counsel to the Respondent are indeed not applicable to the facts and circumstances of the instant case.
The only defect in the Writ of Summons in the cases of: S.C.E.N. VS. NWOSU (supra) and ORI -NI- OWO VS. AFRICAN DEVELOPMENT CORPORATION (Supra) was the failure to give a Defendant's address and no more they are totally distinguishable from the instant case where the defect in the Writ of Summons is not limited to not given the addresses of the Appellants but also extends to failure to endorse the Writ to be served outside the jurisdiction of the Court for the 1st Appellant or to issue a concurrent originating process, when in fact the other process of the 1st Respondent have shown that the address of the 1st Appellant is outside the jurisdiction of the Court. And, when the 1st Respondent also failed to obtain an order of substituted service for the attempt to serve the 1st Appellant through the 2nd Appellant within jurisdiction.
The cases of CHIAZOR VS. TUKUR (SUPRA) AND PANACHE COMMUNICATION VS. AIKHOMU (SUPRA) on the other hand were concerned with defects in the service of the originating processes and not the validity or otherwise of the Writ of Summons. ?For these reasons, I am in agreement with the learned Counsel for the Appellants that the failure/neglect of the 1st Respondent to obtain leave to issue and mark the Writ and other processes as concurrent and serve Writ outside jurisdiction and also to obtain Order for substituted service on the 1st Appellant through the 2nd Appellant at R.C.C.G. Ilorin is fatal to the 1st Respondent's case and goes to the jurisdiction of the Court. Furthermore, if as in the instant case a Writ is invalid for not being properly issued any personal service effected thereafter cannot be effective.
This is because the Writ itself is incompetent and goes to the root of the jurisdiction and affects the competence of the Court. See. OWNERS OF THE MV 'ARABELLA" VS. N.A.IC. (2008) 11 NWLR (PT. 1097) 182 AT 193."
Per OWOADE, J.C.A. IN ADEOYE & ANOR v. AYOKU & ANOR CITATION: (2018) LPELR-44051(CA)
