Given by

Salihu Modibbo Alfa Belgore. J.S.C.

There was a suit dated 28th day of April, 1958 filed at Onitsha in the High Court of the former Eastern Region of Nigeria. It was given a writ of summons number O/71/58. The action was in a representative capacity with both parties representing their respective communities of Ogidi and Egbunike. The sum of £33:3:6d. was paid with the application for the writ of summons and a revenue collector's receipt was issued to the plaintiff. On 6^th October, 1958, Obianwuna Ogbuanyinya (deceased, who is on the papers before us the 1st appellant) appeared in obedience, no doubt, to a writ of summons served on him and asked for pleadings which were ordered. On 8th February, 1965, on application by the plaintiffs, 2nd and 3rd plaintiffs were added to the suit. On 9th February, 1960, barely two years after the suit was filed, the 2nd, 3rd, 4th, 5th and 6th defendants were joined on the application of the defendants. The case was in abeyance during the civil war period and resurfaced thereafter in the High Court of Anambra State in 1976 before Nnaemeka-Agu, J. (as he then was), with 1st and 2nd defendants reported dead. Nnaemeka-Agu, J. (as he then was) delivered judgment, which was incompetent as he was then functus officio, having been appointed sometime in 1977 to the Federal Court of Appeal. The Supreme Court set aside the judgment. and remitted it for trial de novo (see Ogbuanyinya & 5 Ors. v. Obi Okudo (1979) 9 S.C. 32).

When the matter came up at Onitsha for trial de novo, G.R.I. Egonu, S.A.N., for the defendants raised a preliminary objection as follows:

TAKE NOTICE that the defendants intend, at the hearing of this action, to rely upon the following preliminary objection notice whereof is hereby given to you, viz:-

That the above action is incompetent and it is not properly before the court.

TAKE NOTICE that the grounds of the said objection are as follows:

(1)   That the action was not initiated or constituted by due process of law.

(2)   That no Writ of Summons signed by a Judge of the then High Court of Eastern Nigeria or any other valid Writ of Summons was issued to commence the above action: or alternatively, there is no evidence of such a Writ of Summons.

(3)    That the parties in the action were altered and there is no evidence of any Order of the court authorising the alterations.

Dated this 27th day of January, 1981.

(SGD) G. R. I EGONU, S.A.N.

COUNSEL AND SOLICITOR

FOR THE DEFENDANTS.

The defendant (now appellants) now appear to raise issue of competency with regard to whether a writ actually subsists or not. Order 2 rule 1, High Court Civil Procedure Rules of Eastern Region of Nigeria 1955 was being relied upon. It reads:

Every suit shall be commenced by a writ of summons signed by a Judge, magistrate or other officer empowered to sign summonses.

The submission by learned counsel for the appellant from the High Court through Court of Appeal to this court has been adumbrated on the proposition that there was no writ of summons in this suit and as such all proceedings in all the courts up to the Supreme Court judgment in suit SC. 13(1979 were a nullity. This to my mind is a very novel proposition. Clearly the respondents as plaintiff applied for issuance of a writ of summons and appropriate fee was paid for which a revenue collector's receipt was issued. Thereafter parties appeared and pleadings were ordered and finally filed. From 1958 to 1976 the status of the High Court of Eastern Region had changed remarkably due to political and administrative situations. Eastern Nigeria was occupied by a rebellious regime for almost three years, not to talk of independence in 1960 and republican Constitution of Eastern Nigeria 1963. The Military Regime came in 1966 and remained up to 1979. During the same periods, Eastern Nigeria had ceased to exist and new states were created. Onitsha is now part of Anambra State. Several changes thus took place but the most trying period was the civil war years when several documents got destroyed and/or were missing. The writ of summons could not be found. But missing writ of summons does not manifest that it was not issued. All a plaintiff had to do was to apply for a writ of summons in accordance with Rule 2 Order 1 and pay the prescribed fee. This, the respondents did. Unless a writ of summons was issued the other side could not appear for it is the writ that invites the defendant to court. Surely parties who appeared in court and asked for pleadings and finally filed one could not be said to have received no writ of summons. But for the judgment of Supreme Court which decided the all-important question of jurisdiction of the trial Judge there was no challenge to the validity of the trial. Now what the appellant resorted to in the trial de novo which has unfortunately protracted the hearing of substantive issue is nothing but delay tactic. Would the court of trial declare a nullity what this court tried and remitted for trial de novo? It seems this precisely is what the appellants indirectly want to achieve. The appearance of the par-ties in the trial court, the filing of their pleadings and offering of testimonies manifest regularity as I cannot imagine a situation where a party not invited via a writ of summons would appear in court to file pleadings or apply to be joined. Evidence Act says:

149(1)  When any judicial or official act is shown to have been been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.

In the face of substantial compliance with steps normally taken if a suit exists, as the filing of pleadings, joinder of parties etc, it is presumed a writ of summons signed by a Judge in compliance with Order 2 Rule 1 exists. It is however to be pointed out that the duty to issue a writ of summons is not that of the plaintiff. The plaintiff, having applied for a writ of summons on payment of appropriate fees leaves the rest to the court. His appearance in court and the presence of defendants suffice to arrive at the presumption envisaged in 5.149(1) Evidence Act (supra). The burden of proof of a particular fact, in this case, that there was no writ issued is on the person that makes the allegation - Section 138 Evidence Act. Against this allegation of non-issuance of writ of summons are acts of the parties - appearance in court, filing of pleadings, moving the court to join additional defendants. These acts are consistent with those of an existing suit: and notice of the suit is the service on the defendants of writ of summons. The appellants despite the long journey on this trivial matter have not explained how they decided to go to court and participate in the suit without being served any writ of summons. The burden is on them to explain how they came to court without service of a writ on them.

It is true, as submitted by counsel for the appellants, that competency is fundamental to the trial of a case by court, but he has not up to now explained how his clients appeared other than by way of being served with a writ of summons. The burden is on his clients. The cases cited, to wit, Madukolu & Ors. v. Nkemdilim (1962)1 All N.L.R. 587, 589, 595; Ajao v. Sonola & Anor. (1973) 5 S.C. 119, 120, 121; Western Steel Works Ltd. & Anor. v. Iron & Steel Workers Union of Nigeria & Anor. (1986)6 S.C. 35, 50,51,52; (1986)3 N.W.L.R. (I't.30) 617 and Management Enterprises Ltd. and Anor. v. Jonathan Otusanya (1987)2 N.W.L.R. (Pt.55) 179, at 188 are of great authorities on competency. They, however, have no bearing on this case in hand. It would appear the device behind the preliminary objection subject of appeal now before this court is an indirect way of asking the High Court at Onitsha declare invalid the decision of this court in suit no. SG 13/1979 because the decision was based on a suit that never existed. This appeal has not served well the cause of justice. If it is meant to help develop the law so as to fish out the effect of the missing writ of summons it could unwittingly defeat justice by sheer length of the delay in hearing the substantive issue.

For the above reasons, I dismissed the appeal on 30th day of April, 1990 with N500.00 costs to the respondents.

Reasons for Judgment given by

Augustine Nnamani. J.S.C.

Before now, I saw the draft of the reasons for judgment just delivered by my learned brother, Belgore, J.S.C. I entirely agree with them and adopt them as my own.

It is not disputed that this suit was filed in the Onitsha Judicial Division of the former High Court of Eastern Nigeria on 28th April, 1958 as Suit No.0/71/58. Nor is it disputed that after a chequered history, including its being pending during the Nigerian Civil War, Nnaemeka-Agu, J. (as he then was) heard the matter and delivered judgment in 1977. On the date of the judgment, Nnaemeka, J. was functus officio as he had been appointed a Justice of the then Federal Court of Appeal. The matter then went up to the Supreme Court which declared the said judgment null and void and sent the case back to the Onitsha High Court for trial de novo. See (1979)6-9 S.C. 32. On resumption of the retrial at the Onitsha Court, learned Senior Advocate, Mr. Egonu raised a preliminary objection in effect contending that the suit was not commenced with a writ of summons. This objection was refused by the High Court. An appeal against that refusal to the Court of Appeal Enugu was dismissed hence the appeal to this Court.

Before considering the issues raised in this appeal, it is pertinent to mention that most of the documents in this suit were lost during the Civil War. It is not in dispute that by Order 2 Rule 1 of the High Court Rules of Eastern Nigeria every suit shall be commenced by a writ of summons signed by a Judge, Magistrate or other officer empowered to sign summons. By Order 33 Rule 1, written pleadings shall be ordered in all matter by the Court, unless the Court considers in any proceedings suit that written pleadings are unnecessary. What one has to decide is whether this suit which went from the High Court Onitsha, through the Court of Appeal to the Supreme Court and back was not started with a writ of summons duly signed by a Judge. Learned Senior Advocate Mr. Egonu, contended that the onus is on the respondent to show such a writ and failure to show such a writ meant that all the proceedings in this matter are a nullity. Learned counsel to the respondents, Mr. Ezeuko, contented that the onus was rather on the appellants to show that there was no such writ.

There are some paragraphs of the affidavit sworn by one Raphael Anyaegbunam in answer to the preliminary objection. In paragraph 7, 10, 12 and 17 he averred as follows:-

7.     That a photocopy of the Revenue Collector's receipt is hereto annexed ……………

10.   That on the 6th of October, 1958 the 1st defendant appeared in Court in obedience to the writ and pleadings were ordered in the above matter ……………..

12.   That annexed hereto and marked Exhibit "C" is the Affidavit of Chuba Ikpeazu as he then was Counsel to the defendants admitting that pleadings were ordered in the matter.

17.   That on the 9th of February 1990 on the application of the Defendants the 2nd, 3rd, 4th, 5th and 6th Defendants were joined to the existing Defendant on record …………….

The first point that comes out of this affidavit is that the plaintiffs paid the necessary fees for the issuance of a writ. Having done that can it be said that it was still their duty to ensure that the writ of summons was signed by a Judge? I am also of the view that that suit appears to have been properly commenced in the Onitsha High Court when they paid the necessary court fees. See Mufutau Atawode & Ors. v. M.A. Semoh (1959)4 F.S.C.27; (1959) SCNLR 91, per Ademola, C.J.F. at page 29.

The next issue is that on appearance in Court the 1st defendant, represented then by an eminent lawyer Chuba Ikpeazu (as he then was), asked for pleadings. The question, which arises, is whether the defendant asked for pleadings in a suit in which no writ of summons had been served on him? The answer by learned Senior Advocate that the Defendant may have appeared pursuant to a hearing notice can hardly solve the problem. Could his eminent counsel have asked for pleadings on a hearing notice?

Then appearing from the affidavit is the averment that 2nd, 3rd, 4th, 5th and 6th defendants appeared to join the suit as defendants. Could they also be joining a suit in respect of which no writ of summons was served?

In my view the situation is that a suit which was properly commenced is being challenged on the ground that there was no writ of summons duly signed by a Judge. So many steps have been taken to make this objection belated in the extreme. After the filing of the suit, an eminent counsel asked for pleadings. Eminent Judges took the matter before the Nigerian Civil War. No one noticed the defective writ. The question of the defective nonexistent writ did not arise throughout the proceedings in the High Court before Nnaemeka-Agu, J. Although it was raised as an alternative ground in the first appeal, it was neither argued there nor in the Supreme Court. Then there was the joining of the suit by the defendants 2,3,4,5 and 6. This to my mind is a proper case in which the presumption of regularity must be upheld. It was for the appellants to rebut it and show that no writ duly signed by a Judge was issued. They failed to rebut the presumption. These were the reasons for my dismissal of this appeal on 30/4/90 as earlier mentioned. One can only hope that this tactical skirmish having now ended, this 1958 case can proceed to trial for there must be an end to litigation.

Adolphus Godwin Karibi-Whyte. J.S.C.

I have read the judgment of my learned brother, S.M.A. Belgore, J.S.C. in this appeal. I agree with it.

This appeal raises two points of law of fundamental and crucial importance. First, it is whether the existence before the court of writ of summons initiating an action could be presumed from the circumstances surrounding the trial of the action? Secondly, on who lies the burden of proof that the action was not commenced by a writ of summons? The crux of the contention of the appellant before us is whether where there is no evidence before the court that the action of the plaintiffs/respondents was initiated or constituted by due process of law, the court can presume the issuance of a writ of summons from the circumstances surrounding the trial.

The essential facts of this case are not in dispute. The appeal before us is the second journey of this case to this court.

On the 4th May, 1988, the Court of Appeal Division, sitting at Enugu dismissed the appeal to that court by the defendants against the ruling of the High Court of Onitsha, per Onwuamaegbu, J., dated the 11th June, 1986. The appeal was against the ruling in the preliminary objection that, (a) the substantive action was not initiated or constituted by due process of Law, (b) that no writ of summons signed by a Judge of the then High Court of Eastern Nigeria or any other writ of summons was issued to commence the action, or alternatively, there is no evidence of such a writ of summons was dismissed. In the affidavit sworn to by the 2nd plaintiff on behalf of the plaintiffs in objection to the preliminary objection it was claimed by averments in paragraphs 4, 6, 7, 8, 10, 11, 12, 13, 14, 17, 18, that the claim was filed on 27th August, 1958 and that a total sum of £33:3:6d was paid as court fees and receipt was duly issued; photocopy of which was exhibited as "Exhibit A." The number of the cause pursuant to the writ of summons issued was given as suit No.O/71/58. It was deposed that the deponent acted as the pointer to the service on 1st defendant of the writ of summons. It was also deposed that on 6th October, 1958, the 1st defendant appeared before the court in obedience to the writ of summons served on him and an Order for pleadings was made by the court. A copy of the hearing notice to this effect is exhibited as Exhibit B.

Also exhibited is the affidavit of Chuba Ikpeazu, Esqr. of Counsel deposing to the order of pleadings by the court. Both parties filed pleadings. Also exhibited as Exh.D. is the affidavit of 1st defendant admitting the order by the court of parties to file pleadings. The 2nd, 3rd, 4th, 5th and 6th defendants subsequently by application dated 9th February, 1960 were joined as defendants to the action. Exhibit Fis the affidavit of 5th defendant admitting the fact. It was deposed to in paragraphs 19 and 20 of the affidavit that –

19.    That my solicitors Messrs. A. I. Iguh as he then was and G.E. Ezeuko informed me and I verily believe them that the court files and several records were lost as a result of the last civil war.

20.   That the said Messrs. A. I Iguh and G.E. Ezeuko informed me and I verily believe them that before the trial started before Nnaemeka-Agu, J. they and the then counsel for the defendants Mr. Chike Ofodile, S.A.N., met and verified the relevant papers and found them to be correct.

The affidavit of defendant is not among the papers copied, but the trial Judge observed in his ruling that the counter-affidavit of the 5th defendant merely denied paragraph 8 of the affidavit of the 2nd plaintiff; that the writ of summons was given the number 0/71/58, duly signed by the Judge and was served on the 1st defendant, 2^nd plaintiff acting as a pointer. Thus the issue raised on the affidavits is whether there was a suit No.0/71/58 initiated by a writ of summons signed by a Judge, which writ of summons was served on the 1st defendant 2^nd plaintiff acting as the pointer. The trial Judge tried to resolve the in the affidavits by taking oral evidence, and came to the conclusion that there is a suit No. O/71/58, and that the 2nd plaintiff acted as pointer to service on the 1st defendant.

It is material to refer to the finding of the learned Judge on perusal of the record of the former proceedings in the High Court of this action. He said,

The record of the former proceedings in the High Court shows that the claim prepared and signed by A. Obi-Okoye, plaintiff's solicitor, is dated the 28th April, 1958, but the receipt for the fees (Exh. A in the plaintiff's affidavit) shows that the claim was not filed until the 27th August, 1958. The earliest endorsement seen on the court's file was made on 30/4/73 when the case came before Aghakoba, J. What transpired between 28th April, 1958 (when the case was filed and the 29th April, 1974, a period of 16 years is not available. A letter dated 31st January, 1973 in page 2 of the court’s file and written by B. D. 0. Anyaegbunam, Esqr. a Solicitor for the plaintiffs listed 12 documents forwarded to the Higher Registrar of this court to enable the suit be fixed for mention. The endorsement on that letter by the Registrar, stated that the case came before Justice Egbuna for trial de novo after Justice Kazim had gone but that hearing did not commence before Onitsha was vacated in 1968 (i.e. during the Civil War.) (italics mine).

It seems to me from this endorsement that it could be legitimately inferred of the action which had commenced in the High Court before Kazim, J, was discontinued and had to be resumed de novo before Egbuna, J. This was because Onitsha was vacated and Kazim, J., left as a result of the disorganisation of normal civil activities because of the Civil War. Although the endorsement in the record of proceedings referred to is silent on what transpired between 27th August, 1958 when the claim was filed and 25th June, 1976 when the parties were shown to have appeared before Nnaemeka-Agu, J., it is legitimate to infer that the action was commenced, but trial was interrupted by the events of the Civil War. This inference is supported by the uncontradicted averments in paragraph 19 of the affidavit in opposition to the preliminary objection, that the court files and several records were lost as a result of the last civil war.

It was averred in paragraph 20 of the said affidavit that the trial of the action was resumed in 1976 before Nnaemeka-Agu, J., on the strength of the papers, found, verified and accepted as correct by counsel to both parties. This exercise was predicated by the opening of the file based on a letter from B.D.O. Anyaegbunam, Esquire, former counsel to the plaintiffs and submitted to the Higher Registrar of the High Court, in which he submitted 12 documents on which was relied to reopen the case.

Nnaemeka-Agu, J. (As he then was), tried the case on the papers before him and granted the claim of the plaintiffs. Defendants appealed against the judgment. It is the additional grounds of appeal filed against the judgment which has continued to feature in this case. It reads-

1(a)   That the judgment is a nullity as it was delivered without jurisdiction.

(b)   That the whole proceedings in the Onitsha High Court Suit No.O/7/58 are nullity as the suit was not constituted by due process of Law.

On appeal, counsel prayed the court to rule on the first ground 1(a) before he could argue the other grounds. The Court of Appeal ruled against him. There was therefore a further appeal to the Supreme Court, on the issue. The Supreme Court considering the said ground 1(a) allowed the appeal, set aside the judgment of the Court of Appeal and of the High Court, Onitsha, for trial de novo. This can be regarded as the end of the first journey.

This second trial was before Onwuamaegbu, J. I have already set out in the general comments the objection, the relevant part of the averments of the affidavit opposing the objection and the history of the case from the application for filing of the writ of summons to the hearing of the action by Nnaemeka-Agu, J. (as he then was) now of this court, and the decision of this court that the trial Judge gave judgment without jurisdiction and that the cause be heard de novo.

On the relisting of the cause for hearing counsel to the defendants in their application dated 27th January, 1981 raised the preliminary objection subject-matter of the appeal before us. In dismissing the preliminary objection the trial Judge observed that a defendant who was not served with a writ of summons but who had become aware of the claim may appear "under protest" or he may make a conditional appearance and argue that he was never served any writ or (if he was served one) that the writ of summons served on him was invalid not having been signed by the Judge or Registrar of the court. Specifically adverting to the facts of this case he declared,

Where, however, a defendant appears in court without any conditions, to answer to the claim being made against him, he is deemed, in law to have been properly served and he cannot raise the issue of the validity of the writ or his service thereof unless some error or fraud is manifest. This in effect, means that an unconditional appearance in court to answer to a claim is prima facie proof of the issue of a valid writ of summons and of proper service thereof on the defendant.

The learned trial Judge went on to say that a defect in a writ of summons or the mode of service thereof is a mere technical irregularity which is cured by an unconditional appearance of the defendant to answer the writ of summons.

The learned trial Judge found that there was no direct proof that the writ of summons in the action was signed by a Judge. He however found that the suit was filed on the 27th August, 1958, and the fee of £33.3. 6d. (i.e. N66.35k) was paid on receipt No. E204948. The learned judge observed that there was no presumption that payment of summons fees amounted to proof that summons was issued or signed by a Judge. He however admitted that absence of direct evidence of a summons signed by a judge did not negate proof by circumstantial evidence to that effect.

The learned Judge referred to the implication for the order of pleadings order Order 33 rule 1 of the Rules of the High Court, and stated that the order is made on the basis of a suit as defined in Section 2 of the High Court Law. Accordingly the onus is on the party who asserts to the contrary to prove.

The learned trial Judge referred to the conduct of the defendants in defending the action without protesting to the fact that they were not served with a writ of summons or about any summons being issued or signed by a Judge. He observed as follows –

I am of the firm view that it is now too late in the day to raise that issue. Even if it be assumed (without being conceded) that no writ was issued or that it was not signed by a Judge, the defendants should have appeared in court "under protest" or should have made their appearance conditional and raised the irregularity at the earliest opportunity.

In rejecting the preliminary objection, the learned Judge held,

The evidence before me has shown that they made unconditional appearance, participated fully by filing their statement of defence and several amendments thereto and other documents, pursued the hearing to the end and up to the Court of Appeal and in the Supreme Court. The evidence, if I may borrow the language of exponents of the doctrine of part-performance in conveying, (conveyancing) is specifically unequivocally referable to the issuing and service of a valid writ of summons.

It seems to me that the learned Judge relied on the view that there was no writ of summons or if any, was not signed by a Judge to initiate the action, and that that was an irregularity which could be cured by unconditional appearance to the action. Again that having taken steps in the action by entering unconditional appearance the fact of the competency of the action cannot be questioned.

As I have already stated the defendants appealed to the Court of Appeal.

In The Court of Appeal. It was contended that the competency of the action was fundamental to the adjudication. The issue here is that there was no writ of summons in the court's file or any evidence that a writ of summons was issued to commence the suit. In the circumstance the court could not embark on the hearing of the action. The question of entering appearance under protest or conditional appearance did not therefore arise.

It was submitted that the preliminary objection did not raise any question of defect in the writ of summons. The filing of pleadings it was admitted is a step in the action. But when no writ of summons was issued, such step in the action cannot preclude the questioning of the validity of the action. The failure to issue a valid writ of summons was not a mere irregularity but a fatal and fundamental defect going to the root of the whole action.

Counsel rejected as inapplicable the doctrine of part-performance and estoppel invoked by the learned trial Judge.

Learned counsel to the plaintiffs/respondents conceded the proposition that the competency of an action is fundamental to the adjudicating process. He however, submitted that the authorities relied upon are not applicable to the facts of this case. Counsel referred to the uncontradicted facts and submitted that onus is on the defendant who asserts that no writ of summons was issued to prove the assertion. The Court of Appeal in its determination of the issues observed that the question is whether pleadings would have been ordered and the court proceeds to trial if no writ had been issued.

The court in its consideration of the issue relied on the presumptions under Sections 148(c) and 149(1) to hold that after respondents paid the necessary court fees for the writ of summons, the writ of summons was issued, duly signed and served.

Appellant has appealed against the judgment of the Court of Appeal. There are four grounds of appeal. The first ground was on the error in law for relying on the presumptions in Sections 148(c) and 149(1) to establish that a writ of summons was issued to commence the suit in this action. The second ground was on a misdirection that the burden of proof that no writ of summons was issued to commence the action was on the defendants. The third ground was an observation from inference drawn from uncontradicted facts which appellant contends is an error in law

Counsel to both parties filed their briefs of argument. They relied on the briefs in their oral argument before us. The appellant and the respondent formulated the issues for determination differently. I observe that the issues arising from the same grounds of appeal could be so differently formulated.

I have stated above concisely the grounds of appeal filed. The issues for determination must necessarily follow from, related to and be circumscribed by the grounds of appeal filed. I shall now reproduce hereunder the issues for determination of both appellant and respondent.

Appellant's questions for determination

(a)    Was the Court of Appeal right in holding that Sections 148(c) and 149(1) of the Evidence Act raised the presumption that a writ of summons signed by a Judge was issued to commence suit No.O/71/58?

(b)(i)     On which of the parties was the onus to prove that a writ of summons signed by a Judge was issued to commence suit No.O/71/58 and was that onus discharged?

(ii)     Was there any onus on the defendants/ appellants to prove that no writ of summons signed by a Judge was issued to commence suit No.O/71/58?

(c)(i)     Was the Court of Appeal right in holding that it was a writ of summons that was given the number O/71/58 and that there was an affidavit of the 1st defendant showing that he was served with the alleged writ of summons?

(ii)     Was the Court of Appeal right to rely or act on evidence, which was rejected or disregarded by the trial court when there was no cross-appeal or respondent's notice against the judgment of the trial court?

(d)     Does the payment of the requisite court fees raise the presumption that after the payment a Writ of summons duly signed was duly issued and served?

This court has always discouraged the formulation of issues not related to the grounds of appeal or the proliferation of issues for determination. It seems that issues (a), (c) and (d) above relate to the first & 4th grounds of appeal on presumptions, in Sections 148(c) and 149(1) of the Evidence Act.

Respondent's questions for determination

The respondent has formulated the following issues –

(1)    On whom lies the onus of proof when a party alleges that the writ of summons served on him and which is in his possession was not signed by a Judge?

(2)     Is it open to a party who was never served with a writ of summons and who was joined to the suit on his application, to complain that the action was not commenced with a writ signed by a Judge and when he never saw the writ of summons with which the action was commenced?

(3)    Were the 2nd-6th appellants right to complain and raise the issue of competency on the ground relied on by them when the 1st appellant who was served with a writ of summons who appeared in obedience to the writ and took all steps to defend the suit never raised the issues that the action was not initiated by due process of law in that the writ served on him was not signed by a Judge?

(4)    Was the Court of Appeal right in holding that Section 149(1) of Evidence Act raised a rebuttable presumption that the action was initiated by due process of law when the 2nd 6th appellant did nothing to rebut the presumption that a writ of summons signed by a Judge was served on the 1st appellant who appeared and asked for pleadings under Order 33 Rule 1 of the High Court Rules of Eastern Nigeria?

Apart from the 1st and 4th issues, which relate to the grounds of appeal on burden of proof and presumptions, the 2nd and 3rd issues would seem to me not to concern any of the grounds of appeal filed. They seem to me to challenge the right of the appellants to make the complaints rather than formulating issues arising from the grounds of appeal filed. With due respect to the experience of counsel, this is not the purpose of the formulation of issues for determination. The purpose, as this court has often stated, is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity. In spite of my observations on the issues formulated, I think the formulation of the issues by counsel to the appellant seems to me more acceptable and covers the grounds of appeal filed. I will therefore adopt them as modified in this judgment.

I shall for the purpose of this judgment consider issues (a) and (d) together, which deal with the question of presumptions. I will then deal with the issue of who has the burden of proof as to whether the writ of summons was signed by a Judge. These two issues in my opinion adequately cover all the grounds of appeal filed.

Counsel to the Appellants argued all the grounds of appeal together, thus he properly considered together the issues relating to the presumptions concerning the issue of a writ of summons to initiate the action, and that of on who lay the burden of proof of whether a writ of summons was issued to initiate the action in Suit No. O/71/58. I think it is quite convenient to consider the two issues together since they are inseparably related in the determination of this appeal.

G.R.I. Egonu, S.A.N., learned senior counsel for the appellant opened his submission with the well accepted proposition that the competency of an action is fundamental to its adjudication and that it is the primary issue for determination by the court.

Counsel then submitted that since there was no evidence in the court's file that a writ of summons was issued to initiate suit No.O/71/58 this action in compliance with Order 2 rule 1 High Court Rules, 1955, and there is no evidence that a writ of summons was issued, the court was bound to strike

out the suit. Counsel cited and relied on Madukolu v. Nkemdilim (1962)1 MI N.L.R. 587, AIo v. Sonola (1973) 5 S.C. 119; Western Steel Workers Ltd. & Anor. v. Iron & Steel Workers Union of Nigeria & Anor. (1986) 5 S.C.35; (1986) 3 N.W.L.R. (Pt.30) 617, Management Enterprises Ltd. & Anor. v. Otunsanya (1987)2 N.W.L.R. (Pt.55) 179. In re Pritchard (1963)1 All E.R. 873.

Counsel then went on to refer to the application of Sections 148(c) and 149(1) of the Evidence Act by the court and submitted that the Court of Appeal was wrong as there was no such presumption. It was submitted that the only way to prove' that suit No.0/71/58 was commenced by due process of law is the production of the Writ of Summons issued in the case or a duplicate copy Thereof or a certified copy of the writ of summons.

Learned counsel further submitted that payment of court fees by the plaintiffs/ respondents did not raise any presumption that a writ of summons duly signed by a Judge was issuedt6 commence Suit No.O/71/58. Ii was also submitted that there was no evidence that 1st defendant was served with the writ of summons. There was no record in the High Court that 1st defendant was served with any writ of summons. Learned counsel submitted that the 1st defendant appeared in the High Court, Onitsha, on the 16th October, 1958 for pleadings in this suit in answer to the hearing notice served on him. In his own reply to the submissions of counsel to the appellant, Mr. Ezeuko referred to all the admitted facts in this case and submitted that in the absence of the writ of summons which commenced this action it has to be presumed from the circumstances that the action must have been commenced by the issue of a writ of summons signed by a Judge. Learned counsel referred to Alawode & Ors. v. Semoh (1959) 4 F.S.C. 27, [1959] SCNLR 91 and submitted that once the plaintiff applied for a writ of summons and paid the necessary fees in accordance with the rules he had done all he is required to by the law to commence action by due process of law. In this case there is evidence before the court that plaintiff had paid the necessary fees for a writ of summons was issued. It is therefore a proper inference that the writ of summons was issued. Learned counsel argued that there was no evidence on record that 1^st appellant was not served with a writ of summons signed by when he appeared on the 6th October, 1958 and asked for pleadings through his counsel.

Continuing his submission, Learned Counsel to the respondents argued that the onus is on the appellants who assert that the suit No.O/71/58 was not commenced by a writ of summons signed by a Judge to prove the assertion.

I have set out above the arguments of counsel in this appeal. The issue before us is whether the Court of Appeal on the evidence before it was entitled to presume in the absence of the writ of summons, the existence of a writ of summons, signed by a Judge, which commenced the action in this case. It is necessary before going into the issue to set out the principles governing the presumption applied by the Court of Appeal in this case. These are Sections 148(c) and 149(1) of the Evidence Act.

Section 148(c) of the Evidence Act relied upon provides

148.   The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case, and in particular the court may presume -

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(c)     that the common course of business has been followed in particular cases; ...

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149 (1)   When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.

These two Sections of the Evidence Act, contain the provisions for the presumptions of fact, and presumption of regularity of official actions applied by the courts in these cases where direct evidence of proof of such facts is lacking.

A presumption of fact is the logical inference of the existence of a fact deduced from the proved existence of other facts. In most cases the presumption exists as an example of circumstantial evidence. In all cases the court is free having regard to the common course of natural events, human conduct, public and private business, to presume the existence of any fact which it seems likely to have happened, in their relation to the facts of a particular case. The court is not obliged to draw the inference although it generally does. But it seems to me the court is bound to draw the inference where there is no evidence to the contrary. There is also the presumption that, where there is no evidence to the contrary things are presumed to have been rightly and properly done. This is as expressed in the common law maxim in latin: omnia praesumuntur rite esse acta. This presumption is very commonly resorted to and applied especially with respect to official acts.

These were the principles relied upon by the Court of Appeal in finding that the action suit No.O/71/58 was commenced by a writ of summons signed by a Judge in accordance with Order 2 rule 1, High Court Rules of Eastern Nigeria 1955. How did the Court of Appeal apply the principles to the facts of this case?

It is pertinent therefore to refer to the facts of this case that appellants were contesting the fact that the action was not commenced by any writ of summons, and contend that the onus of the proof that it was, lay on the respondents. There is no dispute that respondents paid for the issue of the writ of summons to commence the action. The receipt obtained on payment, was exhibited. The defendants to the action appeared before the court, asked for pleadings, which was ordered, filed and exchanged. It is not disputed that the action came before Kazim, J., and was only terminated when as a result of the disorganisation of civil activities arising from the civil war which ranged between 1967-1970, he left and the suit was fixed before Egbuna, J. The confusion arising from the Civil War did not end till January 15, 1970. In 1973, the plaintiff through counsel applied to relist the case for hearing. Onitsha where the court is situated was one of the towns adversely affected by the Civil War.

It was not disputed that many of the records of cases in the Court Registry were lost. It is also not disputed that through the effort of counsel to the parties, the documents on the basis of which the case was relisted were reconstituted and agreed upon. The appellants who now are putting forward the contention that the suit was not commenced by the issue of a writ of summons, and that consequently the proceedings are a nullity were parties to this reconstitution and agreement of the documents. They have always been represented by learned counsel from the date they appeared. The 2nd-6th appellants applied to join as defendants.

In my opinion the question is not whether at the reconstitution of the action after the civil war, the writ of summons initiating the action was found among the papers agreed upon, but whether at the commencement of the action in August, 1958 there was a writ of summons signed by a Judge. In other words whether the action was validly commenced by a writ of summons signed by a Judge. The existence of a writ of summons antedates the reconstitution of the case after the Civil War. This is the relevant time of reference.

I agree entirely with the Court of Appeal that the judgment of the Federal Supreme Court in Alawode v. Semoh (1959)4 F.S.C. 27; [1959] SCNLR 91 where it was held that where a plaintiff has done all that is required of him in law to commence an action, he cannot be held responsible for every other failure attributable to official negligence. Thus on 27th August, 1958 when the action commenced, and on 6th October of that year when pleadings were ordered by the court, it could be presumed from the payment of the necessary fees to enable the issue of the writ of summons; that on 8th March, 1965 when 2nd and 3rd plaintiffs were joined, or on 6th February, 1960 when the 2nd-6th defendants were joined, the appearance of the parties to ask for pleadings and the order for same that there was a writ of summons giving rise to the action subsequently the fixing of the case for hearing before Kazim, J., and on his departure in 1968 before Egbuna, J., for trial de novo. This raises a presumption that the action must at least have been part heard. The establishment of these facts confirm the view that there must have been in existence a valid writ of summons upon which these subsequent legal acts rely for their existence and validity. There is no evidence from which the contrary can be presumed.

It must be appreciated that the reconstitution of the documents after the civil war 1973 from which suit No.O/71/58 was reopened for continuation the commencement of the action. The action was commenced when the fees for the issue of the writ of summons was paid on 27th August, 1958.

In National Employees Mutual General Insurance Association Ltd. v. Ladun Martins (1969) N.M.L.R. 236, it was held that a properly addressed duly posted letter was received by the addressee. Again in Benson v. Onitiri (1960) 5 F.S.C. 69; [1960] SCNLR 275 it was held that a person shown to have acted as a member of a statutory corporation is to be presumed to have been duly appointed.

On the same principles the court was perfectly entitled to draw the inference that on the facts before it the suit No.O/71/58 must have been commenced by a writ of summons signed by a Judge. The acts of the court in fixing the suit, the Judge ordering pleadings, joining the 2nd-6th defendants are acts, which could be presumed in the absence of evidence to the contrary, to have been done rightly in the regular course of judicial duty. They are presumed to have been done rightly - see Aduke v. Oyenubi (1968) N.M.L.R.477. There is no contrary evidence in this case and the presumption that the suit No.O/71/58 was commenced by a valid writ of summons must be drawn. I think where the facts and circumstances of a litigation justify the drawing of the inference that the cause must have been commenced by the issue of a writ of summons signed by a Judge, the existence of writ of summons will be presumed and its absence in the files of the court will not he fatal to the continuance of the action.

I now turn to the issue of on who lies the burden to prove that the action was commenced by a valid writ of summons. Learned counsel to the appellant has submitted that the onus of proof that the action was commenced by a writ of summons issued by a Judge was on the plaintiff who relies on its validity. I need hardly say that the answer to this contention is as fundamental as it is elementary. The burden of proof of any fact in issue is on the party who asserts.

Section 135 provides

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

There is no doubt that if no evidence were given on either side on the issue whether the suit No. O/71/58 was or was not commenced by a writ of summons signed by a Judge, the appellant who asserts that it was not is bound to fail, since the action was prima facie, already on the facts before the court, properly commenced. The respondent having shown prima facie that the action was properly commenced, the onus of proof is on the appellant as he asserts that it is not - See Johnson & Anor. v. Maja & Ors. (1951)13 W.A.C.A. 290, Adeyemi v. Adeyemi & Anor. (1962) L.L.R. 70. Appellant has not discharged the onus on him to prove the contrary.

I am satisfied that the onus is on the appellant to show that the action was not commenced by a writ of summons signed by a Judge in accordance with Order 2 rule 1 Rules of the High Court of Eastern Nigeria 1955.

I am not sure the appellants are interested in the hearing and determination of the substantive case on its merits. It seems to me that since they are not contending that they do not know why they are in court, but they have always been in court at every stage and it is obvious that they are familiar with the claim of the respondents, it is absurd for counsel to argue on their behalf after 32 years of litigation that there was no writ of summons. This is one of the most flagrant abuses of the judicial process known to the law. The appeal of the appellants lacks merits.

For the reasons given above I dismissed the appeal of the appellants on 30th April, 1990.

Abdul Ganiyu Olatunji Agbaje. J.S.C.

 On 30th April 1990 I dismissed the appellants appeal summarily. I indicated then that I would give my reasons for doing so today. I now proceed to do so.

One Obi Okudo for himself and on behalf of Aboh Ogidi people as plaintiff sued one Obianwuna Ogbuanyinya for himself and on behalf of Umueri Ogbunike as defendant in a High Court of the then Eastern Region of the Federation of Nigeria. The action was in the Onitsha Division of the High Court of Nigeria and was assigned suit No.O/71/58. The plaintiffs claims were as follows:

i        A declaration of title to a piece or parcel of land known as and called Isi Agu land situate at Aboh Ogidi which land will be more particularly delineated in a plan to be filed in court.

ii      £100 general damages for trespass to the land since last year.

iii.    Injunction to restrain the defendant and his people from in anyway interfering with the plaintiffs ownership of the said land.

Although the action was instituted in 1958 it has not been disposed of up till now. It has a chequered career. Nnaemeka-Agu, J., as he then was, once in an Onitsha High Court of Anambra State of Nigeria, tried the case. Having heard the parties and their witnesses he delivered his judgment in the case on 17/6/1977. But the Supreme Court on 5/7/79 in an appeal against the judgment set it aside and remitted the case to an Onitsha High Court for retrial.

It was in the course of the re-trial proceedings that G.R.I. Egonu, S.A.N., counsel for the defendants, filed the following Notice of Preliminary Objection:-

`NOTICE OF PRELIMINARY OBJECTION.

Inherent Jurisdiction of the court.

Order of the court made on 21/11/80.

TAKE NOTICE that the defendants intend, at the hearing of this action, to rely upon the following preliminary objection notice whereof is hereby given to you viz:-

That the above action is incompetent and it is not properly before the court.

AND TAKE NOTICE that the grounds of the said objection are as follows:

(1)    That the action was not initiated or constituted by due process of Law.

(2)    That no Writ of Summons signed by a Judge of the then High Court of Eastern Nigeria or any other valid Writ of Summons was issued to commence the above action: or alternatively, there is no evidence of such a Writ of Summons.

(3)    That the parties in the action were altered and there is no evidence of any Order of the court authorising the alteration.

Dated this 27th day of January, 1981.

The 2nd plaintiff Raphael Anyaegbunam swore an affidavit that he called a reply to the preliminary application. The affidavit brought out the following incontrovertible facts in this case since its inception in 1958 and the year 1981 when counsel for the defendant Mr. Egonu, S.A.N., now took the above objection on behalf of the defendants:-

4.     That on the 27th of August, 1958I (the plaintiff) personally filed our claim in the above case.

5.     That the said claim was filed at Onitsha Judicial Division in the then High Court of Eastern Nigeria.

6.     That a total sum of £33.3s.6d was paid as court fees and receipt was duly issued.

7.     That a photocopy of the Revenue Collector's receipt is hereto annexed and marked Exhibit "A."

9.     That the plaintiffs brought the action in a representative capacity and the 1st defendant was sued in representative capacity.

10.   That on the 6th of October, 1958 the 1st defendant appeared in court and pleadings were ordered in the above matter giving the plaintiffs 120 days within which to file their Statement of Claim and plan and the defendants were also given 120 days within which to file their Statement of Defence and Plan if necessary

11.   That a photocopy of the hearing notice to this effect is hereto attached and marked Exhibit "B."

12.   That annexed hereto and marked Exhibit "C" is the Affidavit of Chuba Ikpeazu as he then was counsel for the defendants admitting that pleadings were ordered in the matter.

13.   That both the plaintiffs and the defendants duly filed their pleadings.

14.   That attached and marked Exhibit "D" is the Affidavit of the 1^st defendant admitting that pleadings were ordered, when parties duly appeared in court.

15.   That on Monday the 8^th of March, 1965 on an application to the court by the plaintiffs the 2^nd and 3^rd plaintiffs were added to the existing plaintiff on record.

17.   That on the 9^th of Febraary, 1960 on the application of the defendants, the 2^nd, 3^rd, 4^th, 5^th and 6^th defendants were joined to the existing defendant on record and the sum of 5 guineas costs awarded in favour of the plaintiffs.

18.    That attached and marked Exhibit "F" is the Affidavit of the 5^th defendant admitting that he is one of the defendants on record.

 And as I have said earlier on in this judgment, Nnaemeka-Agu, J., as he then was once tried the case, though the trial turned out to be abortive.

Onwuamaegbu, J., heard arguments on the preliminary objection and overruled it in his ruling of 11/6/1986. The defendants appealed unsuccessfully against the ruling to the Court of Appeal, Enugu Division. This is a further appeal against the ruling to this court.

It is because there was no record of the issuance of a writ of summons in this case that counsel for the defendant had submitted to us that his preliminary objection in the High Court which I have reproduced earlier on in this judgment should have been upheld in that court and in the Court of Appeal.

In so far as counsel submits that, in the absence of the issuance of a writ of summons it cannot be said that the plaintiff's action has been properly commenced in the High Court, I have no doubt that the point is concluded against him in the decision of this court in Olawode & Ors. v. Semoh (1959) 4 F.S.C. 27; f1959J SCNLR 91 where Ademola, C.J., delivering the judgment of the court said at page 29:-

The test for the commencement of an action both according to the English rules and the local Rules of Court appears to me to be this: has the plaintiff done all that is required of him by law to commence his action? In England, all he has to do is to buy the writ and endorse it. In Nigeria he has to make an application to the Registrar and pay the necessary fees.

From then on, his responsibility ceases and what is left to be done is a domestic affair of the court and its staff. From the time the plaintiff in Nigeria delivers his application to the Registrar (provided it is not an action in which the consent of the court is necessary before the writ is issued) and he pays the necessary fees, it will, in my view, be correct to say that an action or a suit has been "cornmenced"."(Italics mine)

Relying on Olawode v. Semoh (supra) I said in the recent decision of this court in Saude v. Abdullahi (1989) 4 N.W.L.R. (Pt. 116) 387. "This case (Olawode v. Semoh) in my view is authority for the proposition too that any delay or, for that matter, failure on the part of a Judge in signing a summons will not be fatal to any proceeding once commenced by a plaintiff in the manner I have just stated." I am still of the same view.

This in my view is the position as to how in law an action is properly commenced in our courts. However different consideration will apply when the point at issue is whether or not a court has properly exercised its jurisdiction over the subject matter of the plaintiff's claim against the defendant named in the plaintiff's application for a writ of summons. In this regard I refer to the following passage in the recent decision of this court in Nwabueze v. Obi-Okoye (1988) 10-11 S.C.N.J. 60 at 73; (1988)4 N.W.L.R. (Pt.91) 664.

Generally courts exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction. (Re Busfield (1886) 32 Ch. D., per Cotton, L.J. 123 at p.131; Re Anglo African S.S. Co. (1886) 32 Ch.D 348 at p.350; Berkeley v. Thompson (1884)10 App. Cas. 45 at p.49; Ex.p. Blain, re Sawers (1879) 12 Ch.D 522). It should be noted that except where there is a submission to the jurisdiction of the court it has no jurisdiction over a person who has not been served with the writ of summons. The court has no power to order service out of the area of its jurisdiction except where so authorised by statute or other rule having force of statute. See [Tassell v. Hallen (1892) 1 Q.B. 321; Mathews v. Kuwait Bechtel Corporation (1959)2 Q.B. 57].

On the incontrovertible facts in this case namely the defendants appeared in court and participated in the trial of this case before Nnaemeka-Agu, J. (as he then was), there is a clear case of their having submitted to the jurisdiction of the High Court. Even if they had not been served with the writ of summons in the case, it is now late for them to complain on that score. On the same point see the case of Ezomo v. Oyakhire (1985)2 S.C. 260; (1985)1 B N.W.L.R. (Pt.2) 195. There is in this case incontrovertible evidence that the plaintiff applied for and pai4 the necessary fees for the issuance of a writ of summons in the case. On the authority of Olawode v. Semoh (supra) and since no leave of court was required for instituting the proceedings in question the plaintiff's action had been properly commenced against the defendants.

It is for the above reasons and the fuller reasons given in the lead judgment of my learned brother, Belgore, J.S.C., which I have had the benefit of reading in draft that I dismissed the appellant's appeal summarily on 30th April, 1990.

Abubakar Bashir Wali. J.S.C.

 I have the privilege of seeing in advance a copy of Reasons for Judgment of my learned brother, Belgore, J.S.C. I entirely agree with those reasons and I hereby adopt the same as mine.

It is very clear from the facts contained in this case that there was a valid Writ of Summons issued, otherwise parties involved would not have gone to the extent of filing and exchanging pleadings. If the appellants are challenging the issuance of a valid Writ of Summons on the 1st defendant/appellant, the burden is on them to prove this allegation. See Cardoso v. Daniel (1986) 2 N.W.L.R. (Pt.20) 1 at 6. They have woefully failed to do that. The conclusion by Uwaifo, J.C.A. that -

...the circumstances of this matter raise some presumptions which I am entitled to draw. Firstly, under Section 148(c) of the Evidence Act, the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume that the, common course of business has been followed in particular cases. Secondly under Section 149(1) of the Evidence Act, where any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.

These presumptions have two implications, namely that a writ of summons was issued for the proceedings relating thereto and that the said writ was duly signed by a Judge. These presumptions are of course rebuttable, the burden being on the appellants here disputing that such duly executed writ was issued:

see Lapade Apataku & Ors. v. Idowu Alabi (1985)2 S.C.329 at 334 per Nnamani, J.S.C. The appellants have in no way discharged that burden. It is not enough to say no writ of summons is produced in support of the fact that one was duly issued. If none is produced because something might have happened within some 22 years after the action was instituted whereupon the appellants filed notice of preliminary objection on 28th January, 1981, that is no rebuttal of the presumptions of regularity.

cannot therefore be faulted.

The appeal is nothing more than a delaying tactics impeding the speedy trial of the substantive case on merit as ordered by the Supreme Court. It lacks merit and substance. It is always good for learned counsel to bear in mind and be guided by the adage that - "justice delayed is justice denied" when prosecuting cases.

Counsel