ABIC NIG. LTD. & ORS V. ECOBANK NIG. PLC. (2010)

ABIC NIG. LTD. & ORS V. ECOBANK NIG. PLC.

(2010)LCN/4131(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 14th day of December, 2010

CA/PH/176M/2002

RATIO

SERVICE OF COURT PROCESS: POSITION OF THE LAW WHERE SERVICE ON A PARTY IS NECESSARY AND THERE IS NO PROOF THAT SUCH SERVICE WAS EFFECTED ON THE APPROPRIATE PARTY

I agree with the learned Appellants’ counsel that where service on a party is necessary and there is no proof that such service was effected on the appropriate party, such service is defective and liable to be set aside because any proceedings or judgment emanating from such service would be a nullity. See ALH. ODUTOLA V. INSPECTOR KAYODE supra. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

SERVICE OF COURT PROCESS: WHETHER ONLY A SECRETARY, DIRECTOR OR ANY OTHER PRINCIPAL OFFICER OF A COMPANY CAN BE SERVED PERSONALLY WITH A PROCESS MEANT TO BE SERVED ON A COMPANY

I think the provisions of Order 12 r 8 of the Imo State High Court Rules applicable to Abia State are quite clear. Now that the provision has been watered down and service is no more mandated to be at the registered or head office, I think it only stands to reason that the Respondent was required to serve any director, secretary or other principal officer. The provision restricts the persons who may be served personally to “any director, secretary or other principal officer.” It is with the greatest respect an unnecessary expansion of the cadre of persons who may accept service or a corporation or company to include receptionists, cleaners, cooks etc because they presumably have access to the Directors of the Company or Corporation. Obviously, the law restricts the service to persons who would understand the policy implication of the litigation. I could not have put it better than Nnaemeka Agu JCA (as he then was) in EKUMA V. SILVER EAGLE supra where he said: “…a principal officer of the company in my opinion is one who can pass as the alter ego of the company. The Secretary to one the Directors, as distinct from Secretary of the Company, is not a principal officer of the Company.” See CROSS RIVER BASIN & RURAL DEVELOPMENT AUTHORITY V. SULE (2001) 6 NWLR Pt. 708 Pg. 94 at 208-209. See also DAEWOO NIG. LTD. v. UZO (2008) ALL FWLR Pt. 399 Pg. 456 at 472 where this court interpreted Order 12 r 8 of the High Court of Cross River State (Civil Procedure) Rules 1987 which is in pari material with the provisions under review. This position has been reinforced in DAEWOO NIG. LTD. v. UZO supra, where Owoade JCA held that the principle of alter ego has been extended to cover an employee of managerial status as a principal officer of the company. See NIGERIAN AIRWAYS v. AHMADU (1991) 6 NWLR Pt. 198 Pg. 492 at 500. See also MARK v. EKE (2004) 5 NWLR Pt.865 Pg. 1. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

ESSENCE OF PROPER ISSUANCE AND SERVICE OF COURT PROCESS ON A COURT’S JURISDICTION OVER A SUBJECT MATTER OF LITIGATION

There is no doubt that proper issue and proper service of a writ are conditions precedent for the exercise of the courts jurisdiction over the subject matter of litigation. See BEN OBI NWABUEZE v. JUSTICE OBI OKOYE (1988) 10-111 SC.60; OKOYE v. CPMB LTD. (2008) 15 NWLR Pt. 1110 Pg. 335; TSOKWA MOTORS v. UBA PLC (2008) 2 NWLR Pt. 1071 Pg. 347. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

SERVICE OF PROCESS: WHETHER SERVICE OF PROCESS ON A REGISTERED COMPANY IS SUFFICIENT WHEN LEFT AT THE REGISTERED OFFICE; POSITION OF THE LAW ON WHOM CAN BE SERVED A PROCESS MEANT TO BE SERVED ON A REGISTERED COMPANY

Service of process on a registered company is sufficient when left at the Registered Office. No need to deliver it to a particular person. See BEN THOMAS HOTELS v. SEBI FURNITURE (1989) 12 SCNJ 171. However, when the process is served on a particular person, the person must fall within the cadre of principal officer” of the company and such a person must be of managerial status. I agree with the Appellant’s counsel that the receptionist is not of managerial status and service to her cannot constitute propel service to the Appellants. See KISARI INVESTMENT v. LA-TERMINAL (2001) FWLR Pt. 66 Pg. 766 at 785; ALH. FASESAN v. COAST HOTELS & RESTAURANTS (2004) ALL FWLR PT. 218 at Pg. 964 at 977. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

RESPONDENT’S NOTICE: PURPORT OF A RESPONDENT’S NOTICE

It is pertinent to explain here the purport of a Respondent’s Notice to contend. BIRIGGS V. BOB-MANUEL (2003) 1 SCNJ 218 AT 227, the Supreme Court held that the traditional role of a Respondent’s Notice is to seek to affirm the judgment appealed against on grounds other than those that may have been given in the judgment. See LAGOS CITY COUNCIL V. AJAYI (1970) 1 ALL NLR 291 at 294. The essential position of a Respondent who files a Respondent’s Notice is that the judgment is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the judgment. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

Before Their Lordships

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

Between

1. ABIC NIG. LTD.
2. ATUMA INTERNATIONAL CO. LTD.
3. BEAUTY PRODUCTS CO. NIG. LTD.
4. CHIEF EMMANUEL ATUMA ASIEGBU
5. PRINCE CHIDI ASIEGBU – Appellant(s)

AND

ECOBANK NIG. PLC. – Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the leading Judgment): This is an appeal by the 1st, 2nd, and 3rd Appellants against the Ruling of the Abia State High Court, Aba presided over by Honourable Justice Obiseki Orji dated the 17th day of May, 2000 partially dismissing the motion of the Appellants which prayed the court to set aside the service of the writ of summons on them.
The facts which led to this appeal are as follows:
The 1st, 2nd, and 3rd Defendants now Appellants are limited liability Companies incorporated under the Companies and Allied Matters Act Cap 59 Laws of the Federation of Nigeria 1990. The three Companies share the same office at No. 104 Aba/Owerri Road, Aba. The 4th and 5th Defendants are Directors of the 1st Defendant Company. A bailiff of the Aba High Court went to the said address and served the receptionist of the 1st Defendant nor 1st Appellant will all the five writs of summons meant for each of the five Defendants. The Defendants through their counsel entered a conditional appearance to the suit and filed their joint Memorandum of Appearance. They also filed a motion praying the lower court to set aside the purported service of the writ of summons on all the Defendants on the ground that none of them was served with the writ of summons according to law. The lower court heard argument on the said motion to which the Respondent did not file any affidavit in opposition.
The learned trial judge delivered his Ruling and set aside the service of the writ of summons on the 4th and 5th Defendants only. In the case of the 1st, 2nd and 3rd Defendants he held that the service of the writs of summons meant for them on the receptionist of the 1st Defendant was proper service. He held that the said receptionist of the 1st Defendant Company can be taken to be principle officer of the company. The 1st, 2nd and 3rd Defendants/Appellants were dissatisfied with the said Ruling. They filed a Notice of Appeal containing two grounds of appeal.
On 18/9/06, the Respondents filed a Respondent’s Notice to contend that the judgment should be affirmed on grounds other than those relied on by the court below. The Appellants’ brief is dated 28/10/04 filed 22/9/05. The Appellants also filed a Reply brief is dated 27/11/06 filed on 17/1/07 deemed filed on 9/2/07. The Respondent filed a Respondent’s brief dated 15/9/06 filed on 18/9/06 which was deemed filed on 20/9/06. The Respondent’s Notice dated 15/9/06 filed on 18/9/06 was deemed filed on 20/9/06.
The Appellants identified one sole issue before the court for determination which is stated below.
“Was the learned trial Judge right when he held that the service of the three writ of summons meant for the 1st-3rd Defendants/Appellants or the receptionist of the 1st Defendant/Appellant was proper service of same on them and so refused to set aside the service?”
This sole issue was also adopted by the Respondent and is also hereby adopted by me in the determination of this appeal.
Learned Appellants’ counsel argued that the learned trial judge was in error to hold that the service of the writ of summons meant for 1st, 2nd & 3rd Appellants on the receptionist of the 1st Appellant was proper. Counsel argued that Order 12 of 8, Abia State High Court Rules provides that the writ may be served on any director, secretary or other principal officer of the company. Counsel argued that a receptionist cannot pass as an alter ego of the company not quality as a Director or Secretary. He argued that the receptionist was not a member of staff of the 2nd & 3rd Appellants let alone a principal of officer. He cited EKUMA & ANOR, V. SILVER EAGLE SHIPPING AGENCIES PH LTD. (1987) 4 NWLR PT. 65 PG. 472 AT 480; CROSS RIVER BASIN & RURAL DEV. AUTHORITY V. SULE BABA ALI SULE (2001) 6 NWLR PT. 708 PG. 94 AT 208 – 209.
In reply the learned Respondent’s counsel argued that the writ of summons was served on the receptionist of the 1st Appellant for onward transmission to the three Appellants and which she actually delivered to them and they acknowledged receipt of the said writs. The learned trial judge held that notwithstanding the absence of direct service of the writs of summons and statement of claim by the bailiff that there was proper service of same on the Appellants. Learned counsel also submitted that the service of the writs on the Receptionist of the 1st Appellant for the 1st, 2nd & 3rd Appellants who share the same office is proper service. Though the service was not direct, the Appellants being an artificial person will be served through a natural person. The most important thing is that the writs were delivered by the bailiff to the receptionist who delivered same to the Appellants. She is a principal member of the 1st Appellant who shares the same Director/Manager as well as office. It is her duty in the office that matters not her work. He cited PANACHE COMMUNICATIONS LTD. V. AIKHOMU (1994) 2 NWLR PT. 327 AT 420.
Learned counsel for the Appellants’ in reply argued that the decision in PANACHE COMMUNICATIONS LTD. V. AIKHOMU supra, was given per incuriam and contrary to the case of ALH. ODUTOLA V. INSPECTOR KAYODE (1994) 2 NWLR PG. 324 PG. 1 AT 19-20 where the Supreme Court held that where service of a process is ordered to be effected in a particular manner, it must be so effected to be valid.
This court in NBC PLC V. UBANI (2009) 3 NWLR PT. 1129 PG. 512 AT PG. 534-535 explained the position of the law clearly. Under the Companies Act, 1968, service on a company or corporation could only be effected by service on the Secretary or Principal Officer of the corporation or company at its registered office. However, S.7 of CAMA 1990 transferred the question of service of court processes from the Companies Act to the applicable rules of court.
Now, at the time relevant to his application, the provisions of the Abia State High Court Rules governing service of processes on incorporated companies was Order 12 r 8 of the Imo State High Court (Civil Procedure) Rules 1988 applicable to Abia State. It provides as follows:
“Where the suit is against a corporation or a company authorized to sue and be sued in its name or in the name of an officer or trustee, the writ or other document may be served, subject to the enactment establishing such corporation or company or under which it is registered as the case may be by giving the same to any director, secretary or other principal officer, or by leaving it at the office of the corporation or company.”
The Learned trial judge found that the bailiff effected service on the 1st, 2nd & 3rd Appellants through the receptionist of the 1st defendant. The court held as follows on page 17 of the record:
“It is my view and I so hold that a principal officer of a company within the meaning of Order 12 r 8 supra is not necessarily a quotient of the rank in the company or to relevance to the company. In this regard a receptionist who attends to the guests of the company becomes a principal officer. She is the gateway to the company.”
I agree with the learned Appellants’ counsel that where service on a party is necessary and there is no proof that such service was effected on the appropriate party, such service is defective and liable to be set aside because any proceedings or judgment emanating from such service would be a nullity. See ALH. ODUTOLA V. INSPECTOR KAYODE supra. I think the provisions of Order 12 r 8 of the Imo State High Court Rules applicable to Abia State are quite clear. Now that the provision has been watered down and service is no more mandated to be at the registered or head office, I think it only stands to reason that the Respondent was required to serve any director, secretary or other principal officer.
The provision restricts the persons who may be served personally to “any director, secretary or other principal officer.” It is with the greatest respect an unnecessary expansion of the cadre of persons who may accept service or a corporation or company to include receptionists, cleaners, cooks etc because they presumably have access to the Directors of the Company or Corporation. Obviously, the law restricts the service to persons who would understand the policy implication of the litigation. I could not have put it better than Nnaemeka Agu JCA (as he then was) in EKUMA V. SILVER EAGLE supra where he said:
“…a principal officer of the company in my opinion is one who can pass as the alter ego of the company. The Secretary to one the Directors, as distinct from Secretary of the Company, is not a principal officer of the Company.”
See CROSS RIVER BASIN & RURAL DEVELOPMENT AUTHORITY V. SULE (2001) 6 NWLR Pt. 708 Pg. 94 at 208-209. See also DAEWOO NIG. LTD. v. UZO (2008) ALL FWLR Pt. 399 Pg. 456 at 472 where this court interpreted Order 12 r 8 of the High Court of Cross River State (Civil Procedure) Rules 1987 which is in pari material with the provisions under review. This position has been reinforced in DAEWOO NIG. LTD. v. UZO supra, where Owoade JCA held that the principle of alter ego has been extended to cover an employee of managerial status as a principal officer of the company. See NIGERIAN AIRWAYS v. AHMADU (1991) 6 NWLR Pt. 198 Pg. 492 at 500. See also MARK v. EKE (2004) 5 NWLR Pt.865 Pg. 1.
There is no doubt that proper issue and proper service of a writ are conditions precedent for the exercise of the courts jurisdiction over the subject matter of litigation. See BEN OBI NWABUEZE v. JUSTICE OBI OKOYE (1988) 10-111 SC.60; OKOYE v. CPMB LTD. (2008) 15 NWLR Pt. 1110 Pg. 335; TSOKWA MOTORS v. UBA PLC (2008) 2 NWLR Pt. 1071 Pg. 347. Service of process on a registered company is sufficient when left at the Registered Office. No need to deliver it to a particular person. See BEN THOMAS HOTELS v. SEBI FURNITURE (1989) 12 SCNJ 171. However, when the process is served on a particular person, the person must fall within the cadre of principal officer” of the company and such a person must be of managerial status. I agree with the Appellant’s counsel that the receptionist is not of managerial status and service to her cannot constitute propel service to the Appellants. See KISARI INVESTMENT v. LA-TERMINAL (2001) FWLR Pt. 66 Pg. 766 at 785; ALH. FASESAN v. COAST HOTELS & RESTAURANTS (2004) ALL FWLR PT. 218 at Pg. 964 at 977.Let me now address the issue of the Respondent’s Notice to contend. Arguments in respect of the Respondent’s notice to contend were incorporated in the Respondent’s brief and in the Appellant’s Reply, brief. The Respondent’s Notice is to the effect that No.99 Aba/Owerri Road. Aba where service was effected is the registered office of the 1st-3rd Appellants and their principal place of business. Respondent’s counsel then argued that on the totality of undisputed facts and affidavit evidence, the service as effected by leaving it at the registered office of the corporation or its principal place of business within jurisdiction constituted proper service and the judgment should be upheld on that ground.
Learned Appellant’s counsel argued that the Respondent was obliged to adopt one of the two modes of service provided by the rules of court and that delivering the process to the wrong person does not amount to leaving it at the office or place of business.
It is pertinent to explain here the purport of a Respondent’s Notice to contend. BIRIGGS V. BOB-MANUEL (2003) 1 SCNJ 218 AT 227, the Supreme Court held that the traditional role of a Respondent’s Notice is to seek to affirm the judgment appealed against on grounds other than those that may have been given in the judgment. See LAGOS CITY COUNCIL V. AJAYI (1970) 1 ALL NLR 291 at 294. The essential position of a Respondent who files a Respondent’s Notice is that the judgment is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the judgment. The grounds or reasons which the Respondent wants us to accept must come within the findings of fact made by the trial court. There was nowhere in the ruling of the trial court when a finding was made that the receptionist was more than a receptionist or that the office where the receptionist was given the process was the office of the 2nd and 3rd Appellants. See MUHAMMED V. ABDULKADIR (2008) 4 NWLR PT. 1076 PG. 111; ARISONS TRADING V. MIL GOV. OGUN (2009) 5-6 sc Pt. 1 Pg. 131. See also Adekeye JCA (as she then was) in OKOLI v. UDEH (2008) 18 NWLR Pt. 1095 Pg. 213.
The learned trial judge in this case held as follows on page 16 of the record:
“As regards the 1st-3rd Defendant, all that this application calls for is whether the person who received served is a proper person to be served processes for a company.”
The affidavit of the Bailiff Exh. A showed that he effected service on the receptionist of 1st Appellant. There was no finding by the trial court that all the parties had the same place of business. The argument proffered by the Respondent’s Notice went outside the finding of the trial court. There are two modes of service. One by leaving it at the office of the corporation of company or by service on Director, Secretary of other Principal Officer of the company or corporation. I agree with the Appellant’s counsel that the Respondent was obliged to adopt one of the two modes of service. The failure of the first mode does not graduate it into the second mode. Therefore the question of affirming the judgment on the basis that service was effected on the Appellants at their place of business does not arise, moreso, as there is no affidavit evidence to support that claim. The trial judge never made a finding in that regard. The Respondent’s Notice is hereby dismissed.
In the circumstances of this case, the service of the writ of summons meant for the 1st-3rd Appellants on the receptionist of the 1st Appellant is contrary to the rules of court and is hereby set aside. Consequently, the ruling of the Abia State High Court is hereby set aside. The case is sent back to the Chief Judge of Abia State for hearing before another Judge. Appeal Allowed. No order as to costs.