Legal Nuggets (Series 95) :The Fate of an Originating Process that Failed to Comply with Section 97 in the Case of Service Outside Jurisdiction.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI'



 SOCIAL DEMOCRATIC PARTY v. JOHN HINGAH BIEM & ORS (2019) LPELR-46871(CA)

        Upon being served with the originating summons process, the Appellant herein had entered a Conditional Appearance and filed a Notice of Preliminary Objection challenging the jurisdiction of the lower Court on the ground that the Originating summons which was served on the Appellant in Abuja was not endorsed in compliance with the provisions of Section 97 and was not marked concurrent in compliance with the provisions of Section 98 of the Sheriff and Civil Process Act, 2004.             The Appellant nonetheless conceded in its Brief that, although the originating summons was properly endorsed as provided in Section 97, it was not marked concurrent as required by Section 98 thereof. The lower Court had overruled their objection.
           The provisions of Sections 97, 98 and 99 of the Sheriff and Civil Process Act have been subject matter of a number of judicial pronouncements, as eloquently discussed in the lead Judgment. It is settled that a valid writ of summons ought to comply with the relevant Rules of Court, and, where it is issued for service out of jurisdiction, it must also comply with the provisions of Sections 97, 98 and 99 of the Sheriff and Civil Process Act. Where the originating process has been issued for service out of jurisdiction without the mandatory endorsement demanded by Section 97, the originating process was held to be void inIzeze v INEC (2018) LPELR-44284(SC). This has also been held to be the case where there is non-compliance with the provisions of Section 98.
         In The Owners of the MV "MSC Agata" Anor v Nestle Nigeria Plc & Anor (2012) LPELR-9851(CA), this Court, per Ogunwumiju, JCA said, pages 13 ??? 14 of the E-Report:
          "Where there are more than one defendants (sic) in an action and one of these resides outside jurisdiction and the OtherĂ‚ or others reside within jurisdiction, as is in this case, the law is settled on what the Plaintiff should do. Section 98 Of the Sheriffs and Civil Process Act provides that a writ of summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such State or Capital Territory and shall be marked as concurrent. See Mako v. Umoh (2010) 8 NWLR Pt. 1195 Pg. 82.
           I agree with learned Appellants' counsel that failure to comply with the provisions of Order 6 Rule 12 (1) of the Rules and Section 98 of the Sheriffs and Civil processes Act is a fundamental vice which goes to the issue of jurisdiction and renders the issuance of such writ void."

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