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Martin Schroder & Co. v. Major & Co. Ltd

MARTIN SCHRODER & CO.

( Of Hamburg W. Germany )

( By Their Attorney Ade Ladega )

V

MAJOR & COMPANY (NIG.) LIMITED

SUPREME COURT OF NIGERIA

AUGUSTINE NNAMANI, JSC ( Presided )

MUHAMMADU LAWAL UWAIS, JSC

CHUKWUDIFU AKUNNE OPUTA, JSC

ABDUL GANIYU OLATUNJI AGBAJE, JSC

ABUBAKAR BASHIR WALI, JSC ( Read the Lead Judgment )

SC. 84/1986

FRIDAY, 24TH FEBRUARY, 1989

INTERPRETATION OF STATUTE - Principle of interpretation - Where mention made of something in general and special provisions - Which provision applicable - Generalia specialibus non-derogant

INTERPRETATION OF STATUTE - Rule of interpretation - Existence of two provisions (special and general) covering a subject-matter Need for the wordings of the special provision to be given effect to and not to be ruled by the terms of the general provision  - Rationale of rule - Special case is excepted of the general

INTERPRETATION OF STATUTE - Rule of interpretation - Whether an earlier special legislation can be held repealed or altered by general words in a later legislation not specifically extended to the special legislation

LEGISLATURE - Whether does nothing in vain - Presumption of

MAXIM - ‘Generale dictum generaliter est interpretandum; generalia verba sunt generaliter intelligenda’ - Meaning

MAXIM - ‘Generale tantum valet in generalibus quantum singulare in singulis’ - Meaning of

MAXIM - ‘Generalia specialibus non derogant’ - Meaning of

PRACTICE AND PROCEDURE - Affidavit of service of writ - Need for to be in the prescribed form to stand as prima facie evidence of service -  Whether affidavit of service not conforming with prescribed form can support judgment of court

PRACTICE AND PROCEDURE - Service of originating process - Need for process to bear an endorsement as to service

PRACTICE AND PROCEDURE - Service of process - Service done by persons other than officers of court of processes and documents other than originating processes - Affidavit of service sworn to by such persons as prima facie proof of the matter stated therein

PRACTICE AND PROCEDURE - Service of process - Service effected by officer of court of documents including processes other than originating processes - Whether prima proof of the matter stated in the endorsement or affidavit

PRACTICE AND PROCEDURE - Service of process effected by registered post  - Requirements of

PRACTICE AND PROCEDURE - Service of writ of summons - Affidavit of service sworn by bailiff or writ server - Whether complete without properly endorsing the writ as to service - Whether writ is considered regular without completion of service endorsement

PRACTICE AND PROCEDURE - Service of writ of summons - Prescribed form of endorsement as to service on writ - Whether mandatory to complete - Rationale for existence of - When to be completed Whether failure of writ server to complete endorsement as to service not injurious to validity of writ - Effect of failure of writ server to endorse writ on judgment subsequently entered

PRACTICE AND PROCEDURE - Service of writ of summons and other originating summon processes - Need for person effecting service of to endorse forthwith a copy of the process with his signature, date and place of service

STATUTE  - Civil Procedure Rules - Legislature enacting a general provision and subsequent special provision  - Reason for

WORDS AND PHRASES - ‘Generale dictum generaliter est interpretandum; generalia verba sunt generaliter intelligenda’ - Meaning

WORDS AND PHRASES - ‘Generale tantum valet in generalibus quantum singulare in singulis’ - Meaning of

WORDS AND PHRASES - ‘Generalia specialibus non derogant’ - Meaning of

Issue:

Whether in serving a specially indorsed writ an affidavit of service sworn by the person effecting service is good substitute for indorsing a copy of the writ served as prescribed under Order 6 rule 16 of the High Court of Lagos (Civil Procedure) Rules 1972.

Facts:

The plaintiff sued the defendant in the Lagos State High Court by a specially indorsed writ claiming the liquidated sum of DM42,711.15 with interest. The defendant failed to enter any appearance and the plaintiff thereupon brought an application for leave to enter judgment in default of appearance. Leave was granted and judgment was accordingly entered for the plaintiff on 13th July 1984.

The judgment was executed and to save the properties of the defendant, it paid the amounts of the judgment debt. Thereafter the defendant applied on 30/11/84 to have the judgment set aside on the ground that it was not served with the writ and statement of claim and could not therefore have entered any appearance. The defendant argued that the application for leave to enter judgment in default of appearance and the order granting the plaintiff leave to enter judgment were therefore both made per incuriam.

The trial Judge granted the defendant’s prayer, set aside the judgment as well as the writ attachment issued thereon, and ordered that the sum of N14,269.11 (equivalent of DM42,711.15 and N200.00 incidental expenses be paid back to the defendant by the plaintiff.

Dissatisfied, the plaintiff appealed to the Court of Appeal. The appeal was dismissed unanimously. The plaintiff further appealed to the Supreme Court.