Nigeria is a common-law country that operates under a Federal Constitution. It consists of 36 states and the Federal Capital Territory, Abuja. Thus, conflict of laws issues also arise at the inter-state level in Nigeria. Most of the superior courts of record for first instance are structured as follows:
- The Federal Courts are the Federal High Court, and National Industrial Court of Nigeria.
- At the state level, there is a High Court for each state and the Federal Capital Territory, Abuja.
The Sheriffs and Civil Processes Act (“SCPA”) applies throughout Nigeria, inter alia, for service on defendants’ residents outside the jurisdiction of a State High Court or Magistrate Court. There have been four hotly debated issues on service of court processes in the SCPA in Nigeria.
- First, does it apply to Federal Courts such as the Federal High Court, and National Industrial Court of Nigeria?
- Second, is the SCPA to be exclusively utilized for the service of court processes in interstate matters in Nigeria, not including the High Court Civil Procedure Rules?
- Third, is the consequence of non-compliance with the SCPA void or voidable?
- Fourth, does the SCPA apply to service of court processes outside Nigeria?
These four issues are discussed extensively in my recent book titled ‘Conflict of Laws’, which is published online with LawPavilion.
Alli v. Okoloko is a case that addresses the fourth issue of whether the SCPA applies to service of court processes outside Nigeria. The Court of Appeal held that it doesn’t and it is my considered view that the Court of Appeal is correct. I have sought to address this topic mainly because there are many other decisions of the Nigerian appellate courts that conflict with the recent decision of the Court of Appeal. In addition, this issue may come up before the Nigerian Supreme Court and the law should be set right.
In Alli, one of the issues raised was whether failure to comply with Section 97 of the SCPA in the service of court processes in the United States of America rendered a petition in matrimonial proceedings defective.
The Court of Appeal held in the negative on two grounds.
First, it rightly held that:
Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say) – ‘This summons (or as the case may be) is to be served out of the State (or as the case may be)
A writ of summons for service out of the state or capital territory in which it was issued may be dubbed a concurrent writ with the one for service within such state or capital territory and shall, in that case, be marked as concurrent. The period specified in a writ of summons for service under this Part as the period within which a defendant is required to answer before the court to the writ of summons shall be not less than thirty days after service of the writ has been effected or if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that longer period.”
“By virtue of Section 8 of the Matrimonial Causes Act set out above, the Sheriffs and Civil Process Act is not applicable to matrimonial proceedings. There are also the Matrimonial Causes Rules to complement the Matrimonial Causes Act. The said Matrimonial Causes Rules are a complete code of rules of procedure regulating the issuance and service of a petition pursuant to the Matrimonial Causes Act. And there is nowhere in the Matrimonial Causes Rules that requires the endorsement of a petition in the manner required by Section 97 of the Sheriffs and Civil Process Act. See Order VI of the Matrimonial Causes Rules.”
Secondly, it rightly held that:
“In the case of – IBRAHIM v. BALOGUN (SUPRA) PAGE 254 AT 273 PARAGRAPHS C – G it was held among others as follows: – “… Part VIII of the Sheriffs and Civil Process Act which Section 97 forms a part deals with service of Originating Writ of Summons and other Court Processes issued in one state including the Federal Capital Territory, Abuja, on a defendant residing in another State within Nigeria and the Section sets out the endorsement which such a Writ must carry to the effect that the summons e.t.c. to be served out of state X and in the state Y within the Federation of Nigeria. Section 97 or any other provision of Part VIII of the Act does not direct how a Writ of Summons or other Court processes for service in a commonwealth or foreign Country are to be issued and served. The erroneous assumption that the section covers the whole plenitude of the issuance and service of Court processes both within and outside Nigeria led to the misapprehension that the learned trial Judge applied wrongly the laid down procedure which is made the foundation for the appeal, a refrain of which is echoed in variant notes by each of the five grounds of appeal.
A grasp of the Origin and purpose of Part VII of the Sheriffs and Civil Process Act is vital for an appreciation of the misconception that bedevilled the proposed grounds of appeal. … In other words, since service of the Court processes on one who is staying outside Nigeria is not regulated by the Provisions of Part VII of the Sheriffs and Civil Process Act which Section 97 forms a part, any proposed ground of appeal predicated on that section is inane and ineffectual.”
In essence, the decision in IBRAHIM vS. BALOGUN (SUPRA) is that a Court Process meant to be served outside Nigeria is not required to be endorsed as stipulated by Section 97 of the Sheriffs and Civil Process Act.
The Court of Appeal boldly and rightly held that its earlier decision in Touton SA v Grimaldi Compagnia Di Naviga Zioni SPA (supra), which held that the SCPA applies to service of court processes outside Nigeria (in this case, Naples, Italy), was decided per incuriam. Indeed, this is consistent with the view in my recently published work.
The Court of Appeal in Alli (supra) also distinguished the Supreme Court’s decision in Biem which held obiter dictum that the SCPA applies to service of court processes outside Nigeria. It did this on the basis that Biem was not focused on the service of court processes outside Nigeria but on whether the SCPA applies to the Federal High Court.
It is my considered view that the Court of Appeal did not want to offend the Supreme Court in Biem, based on the doctrine of judicial precedent/stare decisis. The truth is that the obiter dictum in Biem (which is consistent with Touton) and cases that adopt this view to the effect that the SCPA applies to service of court processes outside Nigeria are also per incuriam. Indeed, I had earlier submitted in my recently published work that:
“Very recently, Aka’ahs JSC fell into the same error when he stated in his obiter dictum that ‘The service of any process issued by the Federal High Court can be carried out under the Sheriffs and Civil Process Act if such service is to be executed outside the territory of Nigeria.’ The obiter dictum of Aka’ahs JSC is not binding on lower courts in Nigeria and should not be followed.”
It is therefore submitted that the SCPA does not apply to service of court processes outside Nigeria; it only applies to the State High Courts and Magistrate Courts for service of court processes within Nigeria. The SCPA clearly states in its long title that its purpose is to legislate for “the service and execution of civil process throughout Nigeria”. Nigerian previous appellate courts (including the Supreme Court) rightly established that the SCPA applies to the service of a writ on the defendant that resides outside a state but within Nigeria (emphasis added). The correct view is that it is the relevant Civil Procedure Rules that apply for the purpose of obtaining leave to issue and serve a writ of summons out of the jurisdiction of the court outside Nigeria.
On a final note, I would not be surprised if this case goes on appeal, since this issue of whether the SCPA applies to service of court processes outside Nigeria is a contested issue in Nigerian jurisprudence. It is recommended that the Nigerian Supreme Court get the law right by holding that the SCPA does not apply to service of court processes outside Nigeria.
*Assistant Professor in commercial conflict of laws at the University of Birmingham and Senior Research Associate at the Centre for Private International Law in Emerging Countries at the University of Johannesburg
[1] Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe, and Zamfara See s. 3 of the Constitution of the Federal Republic of Nigeria, 1999.
[1] See Constitution of the Federal Republic of Nigeria, 1999, ss. 2 and 3.
[1] Cap S6 LFN 2004. This Act, formerly an ordinance, was enacted in 1945.
[1] For rightly decided cases which hold that the SCPA does not apply to service of court processes in the Federal High Court, see: Biem v SDP (2019) 12 NWLR (Pt. 1687) 377, 405-6; Peoples Democratic Party v Uche & 2 Ors (2023) 9 NWLR (Pt. 1890) 523, 615 For wrongly decided cases that hold to the contrary, see: Owners of the MV’Arabella’v. v Nigeria Agricultural Insurance Corporation (2008 ) 11 NWLR (Pt. 1097) 182; Central Bank of Nigeria v. Interstella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294, 326 – 27; Izeze v. Independent National Electoral Commission (2018) 12 NWLR (Pt. 1629) 110; The Owners of the MV’MSC ‘Agata’v’ v Nestle (Nig) Plc (2014) 1 NWLR 270, 291 – 92; Peoples Democratic Party v Independent National Electoral Commission (2018) 12 NWLR (Pt. 1634) 533; Omajali v David (2019) 17 NWLR (Pt. 1702) 438; Fayemi v Oni (2020) 8 NWLR (Pt. 1726) 222.
[1] Johnson & Another v. Eze & Another (2021) 2 NWLR (Pt. 1759) 90 rightly holds that the SCPA does not apply to service of court processes in the National Industrial Court.
Olayiwola & Sons Ltd (2005) 3 NWLR (Pt. 912) 434; Drexel Energy and Natural Resources Ltd v Trans International Bank Ltd (2008) 18 NWLR (Pt. 1119) 388; Mato v. Hember (2018), 5 NWLR (Pt. 1612), 258.
[1] The locus classicus on this point is Odua Investment Co. Ltd. v. Talabi (1997), 10 NWLR (Pt. 523) 1, where the Nigerian Supreme Court, in a seven-man panel, held that failure to comply with the SCPA is voidable at the instance of the party complaining of the irregularity and does not void the proceedings. There are many appellate court decisions that have followed this decision in Odua (supra). Uchendu & ors v. Ogboni & Ors (1999) LPELR-3287(SC); Ezuma v. Nkwo Mkt. Comm. Bank Ltd (2000) 10 NWLR (Pt. 676) 638; F.M.B.N. v. Adesokan (2000) 11 NWLR (Pt. 677) 108; Habib (Nig) Bank v Senson Ochete (2001) 3 NWLR (Pt. 699) 114; Idris v. Archibong (2001) 9 NWLR (Pt. 718) 447; Job Charles (Nig) Ltd v. Dr. J. E. N. Okonkwo (2002) FWLR (Pt. 117) 1067; Akintunde v. Ojo (2002) 4 NWLR (Pt. 757) 284; P.D.P. v. Adeyemi (2002) 10 NWLR (Pt. 776) 524; Jadcom Ltd & Anor v. Oguns Electricals (2003) LPELR-7253(CA); Ajibola v Sogeke (2003) 9 NWLR (Pt. 826) 9 NWLR 494; Broad Bank of Nigeria Ltd v Olayiwola & Sons Ltd (2005) 3 NWLR (Pt. 912) 434; United Bank for Africa Plc v Odimayo (2005) 2 NWLR (Pt. 909) 21, 36; N.U.B. Ltd. v. Samba Pet. Co. Ltd (2006) 12 NWLR (Pt. 993) 98, 122; N.A.C.B. Ltd, v O.F. Dev. Co. (Nig.) Ltd (2006) 9 NWLR (Pt. 985) 323; Olatunbosun v. Annenih (2008) LPELR-8582(CA); Ansa v. Ntuk (2009) 9 NWLR (Pt. 1147) 557; Mako v Umoh (2010) 8 NWLR (Pt. 1159) 82, 110; Intermarkets (Nig) Ltd & Anor v. Unity Bank Plc (2010) LPELR-4328(CA); Panalpina World Transport Holding AG v Ceddi Corporation Ltd (2012) 2 NWLR 463, 490, 494; Olly v Tunji (2012) LPELR-7911(CA); Muhammed v Ajingi (2013) LPELR-20372 (CA); Helios Towers Nig. Ltd v. NESREA & Anor (2014) LPELR-24624(CA); Davandy Finance and Securities Ltd & Ors v. Aki & Ors (2015) LPELR-24495(CA); Zakirai v. Muhammad & Ors (2015) LPELR-40387(CA); Muhammed v. Ndic (2015) LPELR-40378(CA); B.C.N.N. Ltd. v. Backbone Tech. Net. Inc. (2015) 14 NWLR (Pt. 1480) 511; Adepegba & Ors v. Ani (2015) LPELR-40706(CA); Anyaeche v Nwankwo (2015) LPELR-40677(CA); Obasanjo Farms (Nig) ltd v. Muhammad (2016) LPELR-40199(CA); FRSC v. Orunmuyi (2016) LPELR-40150(CA); FRSC v Idowu (2016) LPELR-40153(CA); Ibru-Stankov v. Stankov (2016) LPELR-40981(CA); S.P.D.C.N. Ltd v. Reg., Bus. Premises Abia State(2016) 2 NWLR (Pt. 1496) 326; Nuhu v Bwacha & Ors (2016) LPELR-40810(CA); CBN v Interstella Communications Ltd (2018) All FWLR 442, 487–88; Incorporated Trustees of the Apostolic Church Igbo Field Nigeria & Ors v. Nelson & ors (2018) LPELR-44760(CA); Spdc (Nig) Ltd v. Nwagbara (2018) LPELR-43732(CA); Zenith Bank Plc v. Denwigwe, SAN & Ors (2018) LPELR-46124(CA); Barr. Ajimatoki Olusegun Philip v.Odimayo Gbadebo Akinola & Ors (2018) LPELR-43966(CA); Sahara Reporter & Anor v Saraki (2018) LPELR-49738(CA); Tell Communications Ltd & ors v. Ngilari (2019) LPELR-46934(CA); Biem v Social Democratic Party (2019) 12 NWLR (Pt. 1687) 377, 405; Omajali v. David (2019) 17 NWLR (Pt. 1702) 438, 458; Atunrase v Aiyegbusi (2019) LPELR-48064(CA); Access Bank Plc v. Sunshine Oil & Chemical Dev. Co. Ltd (2020) LPELR-51819(CA); Grenaco Nigeria Limited & Anor. v Abolade Johnson Nigeria Limited and Ors (2020) All FWLR (Pt. 1026) 558, 591; Fayemi v. Oni (2020) 8 NWLR (Pt. 1726) 222; Ecobank (Nig) Ltd. v. Saleh (2020) LPELR-52024 (CA). The Supreme Court, in Broad Bank of Nigeria Ltd v Olayiwola & Sons Ltd (2005) 3 NWLR (Pt. 912) 434, 457–58, further held, in respect of Section 99 of the SCPA being directory, that once a defendant is given 30 days to enter appearance to a writ of summons served outside the jurisdiction of a court, the failure to endorse on the writ that the defendant has 30 days within which to enter appearance to the writ would not invalidate the writ. See also Yakusak v XELA (Nig) Ltd & Ors (2019) LPELR-48728(CA); Cf Owners of the MV ‘Arabella’ v. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182, 204–9; Drexel Energy and Natural Resources Ltd v. Trans International Bank Ltd (2008) 18 NWLR (Pt. 1119) 388, 429 (Ogbuagu JSC). See further Ahmed v Abdullahi & Anor (2018) LPELR-44747(CA).
There are also many appellate court decisions that have wrongly regarded failure to comply with the SCPA as voiding the proceedings: Ezeobi v. Abang(2000) 9 NWLR (Pt. 672) 230; Newswatch Communications Ltd. v. Atta (2000) 2 NWLR (Pt. 646) 592; Intra Motors Nigeria Plc v. Akinloye (2001) 6 NWLR (Pt. 708) 61, 72; Kida v. Ogunmola (2006) 13 NWLR (Pt. 997) 377, 398; Uwajeh & ors v Uwajeh (2007) LPELR-8767(CA); Stirling Civil Engineering Nigeria v. Nwosu (2007) LPELR-8162(CA); S. C. Eng. Nig. v. Nwosu (2008) 3 NWLR (Pt. 1074) 288; Drexel Energy and Natural Resources Ltd v. Trans International Bank Ltd (2008) 11 NWLR (Pt. 1097) 182, 417-420, 428-429; SPDC v. Ejebu & Anor (2010) LPELR-5025(CA); Touton SA v. Grimaldi Compagnia Di Naviga Zioni SPA (2011) 4 NWLR (Pt. 1236) 1, 21-22; Purechem Ind. Ltd. v. SPICA Shipping Co. Ltd. (2012) 3 NWLR (Pt. 1287) 327; UBN Plc v. Adamawa State Board of Internal Revenue (2013) LPELR-22130(CA); Wari & Ors v. Mobil Inc.
America & Anor (2013) LPELR-21996(CA) 49-50; Nigeria Maritime Administration & Safety Agency & Anor v. Noble Drilling Nigeria Limited (2013) LPELR-22029(CA); The Owners of the MV “MSC AGATA” v. Nestle (Nig) Plc (2014) 1 NWLR 270, 289-292; Edike & Ors v. Ani (2014) LPELR-24511(CA); Sanbell Investment Ltd v. Emlo Holdings Ltd & Ors (2014) LPELR-22991(CA); Anadi v. Anadi & Ors (2017) LPELR-42757(CA); Izeze v. INEC (2018) 12 NWLR (Pt. 1629) 110; P.D.P. v. I.N.E.C (2018) 12 NWLR (Pt. 1634) 533; NNPC v Nwodo & Ors (2018) LPELR-45872(CA); Awosedo & Ors v. AMCON & Ors (2018) LPELR-46051(CA); T/B “Sun Essex” & Ors v. Bensam Maritime Oil & Gas Ltd (2018) LPELR-51554(CA); Shell Petroleum Development Company of Nigeria Ltd v. Enyioko & Anor (2018) LPELR-45272(CA); The MV “Kota Manis” & Ors v. Geepee Industries Nigeria Limited & Anor (2018) LPELR-44098(CA); Omajali v David & Ors(2019) LPELR-49381; Nwadiaro v. UNIPORT (2019)11 NWLR (Pt.1684) 490; Sallau & Anor v. Umar (2019) LPELR-48324(CA); Nwadiaro v. Uniport (2019) 11 NWLR (Pt. 1684) 490; Sallau & Anor v. Umar (2019) LPELR-48324(CA); Non-Academic Staff Union of Educational and Associated Institutions v. Aniah Jacob A & Ors (2020) LPELR-49951(CA); FORTE Oil v. Obasi (2020) LPELR-49748(CA); APC & Anor v. Moses & Ors (2020) LPELR-52700(CA); Federal Housing Authority v. Food Concept & Entertainment Limited (2020) LPELR-51057(CA); Chairman and Members of the Special Investigation Panel of the NHRC on Oil Spills & Environmental Pollution & Ors v. Total E & E (Nig) Ltd (2021) LPELR-53151(CA); United Bank for Africa plc v. Akpan & Anor (2021) LPELR-54290(CA). See further MTN v. Babayode (2014) LPELR-23520(CA), where Denton-West JCA is not clear as to whether it is void or voidable.
[1] The correct position is that the SCPA does not apply to service of court processes outside Nigeria. For cases that endorse this view, see: Alli v Okoloko (2023) LPELR-60700(CA) 10–16; Ibrahim v. Balogun (1999) 7 NWLR (Pt. 610) 254, 272-3 (Olagunju JCA). For cases that are wrongly decided on this point, see: Touton SA v Grimaldi Compagnia Di Naviga Zioni SPA (2011) 4 NWLR (Pt. 1236) 1, 21-22; B. L. Lizard Shipping Co. Ltd. v. M. V. “Western Star” and Ors. (2019) 9 NWLR (pt.1678) 489; Purechem Ind. Ltd. v. SPICA Shipping Co. Ltd. (2012) 3 NWLR (Pt. 1287) 327; Wari & Ors v. Mobil Inc of America & Anor (2013) LPELR-21996(CA); T/B “Sun Essex” & Ors v. Bensam Maritime Oil & Gas Ltd (2018) LPELR-51554(CA); Biem v SDP (2019) 12 NWLR (Pt. 1687) 377, 405-6; Peoples Democratic Party v Uche & 2 Ors (2023) 9 NWLR (Pt. 1890) 523, 615 See further Nwaosu v. Nwaosu (2000) 4 NWLR (Pt. 653) 351.
[1] CSA Okoli, Conflict of Laws (LawPavilion Publishers, 2022), 124–149.
[1](2023) LPELR-60700(CA).
[1] Touton SA v Grimaldi Compagnia Di Naviga Zioni SPA (2011) 4 NWLR (Pt. 1236) 1, 21-22; B. L. Lizard Shipping Co. Ltd. v. M. V. “Western Star” and Ors. (2019) 9 NWLR (pt.1678) 489; Purechem Ind. Ltd. v. SPICA Shipping Co. Ltd. (2012) 3 NWLR (Pt. 1287) 327; Wari & Ors v. Mobil Inc of America & Anor (2013) LPELR-21996(CA); T/B “Sun Essex” & Ors v. Bensam Maritime Oil & Gas Ltd (2018) LPELR-51554(CA); Biem v SDP (2019) 12 NWLR (Pt. 1687) 377, 405-6; Peoples Democratic Party v Uche & 2 Ors (2023) 9 NWLR (Pt. 1890) 523, 615. See further Nwaosu v. Nwaosu (2000) 4 NWLR (Pt. 653) 351.
[1] “ Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say) – ‘This summons (or as the case may be) is to be served out of the ……………State (or as the case may be) and in the ………………State (or as the case may be).’
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 the one for service within such State or the Capital Territory and shall in that case be marked as concurrent.
The period specified in a writ of summons for service under this Part as the period within which a defendant is required to answer before the court to the writ of summons shall be not less than thirty days after service of the writ has been effected or if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that longer period.”
Cap M7 LFN 2010.
Alli v. Okoloko (2023) LPELR-60700 (CA) 13.
Ibid, 13-14.
Ibid, 15.
CSA Okoli, Conflict of Laws (LawPavilion Publishers, 2022), 124–149
Biem v. Social Democratic Party (2019), 12 NWLR (Pt. 1687) 377, 405.
This Article Was Written By: Chukwuma Samuel Adesina Okoli
