SANBELL INVESTMENT LIMITED v. EMLO HOLDINGS LIMITED & ORS
(2014)LCN/7054(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of March, 2014
CA/A/198/2008
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
SANBELL INVESTMENT LTD Appellant(s)
AND
1. EMLO HOLDINGS LTD
2. CHIEF (MRS.) CHRISTY N. OKOYE
3. MR. MARK CHUKWUEMEKA OKOYE JNR.
4. MRS. OLUCHI OKOYE
5. KENNEDY CHUKWUMA OKOYE
6. THE HON. MINISTER FEDERAL CAPITAL TERRITORY
7. FEDERAL CAPITAL DEVELOPMENT AUTHORITY Respondent(s)
RATIO
JURISDICTION OF COURT: POSITION OF THE LAW ON WHEN SUBSTITUTED SERVICE MAY BE EMPLOYED
Substituted service can only be employed when for any reason, a defendant cannot be served personally with the processes within the jurisdiction of the Court for example when the defendant cannot be traced or when it is known that the defendant is evading service. Also, where at the time of the issuance of the writ, personal service could not in law be effected on a defendant who is outside the jurisdiction of the Court, substituted service should not be ordered, see Fry v. Moore (1889) 23 QBD 395. If the defendant is outside the jurisdiction of the Court at the time of the issue of the writ and consequently could not have been personally served in law, not being amenable to that writ, an order for substituted service cannot be made. See Wilding v. Bean (1981) 2 QB 100.
In the instant case, the respondent was known to be out of jurisdiction, and it is not in dispute that the respondent had moved out of Maiduguri to Ibadan, where he had relocated with his family long before the issue of the writ of summons. It is trite law, that after its issue, a writ of summons or any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires to, that which is claimed against him. Where service of a process is legally required, the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitae to have the order set aside as a nullity. See Obimonure v. Erinosho (1966) 1 All NLR 250; Mbadinuju v. Ezuka (1994) 10 SCNJ 109; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6; Adeigbe v. Kusimo (1965) NMLR 284. Service of the originating process has been held to be a condition precedent to the exercise of jurisdiction by the Court out of whose registry the originating process was issued. See N.B.N. Ltd. v. Guthrie (Nig.) Ltd. (1993) 4 SCNJ 1 at 17. The validity of the issue of the writ and the service of the Court on the respondent was raised before the trial Judge and the learned trial Judge in his ruling on this issue…
Thus, the trial Court disregarded the complaint of the respondent on the validity of the issue and service on him of the processes. The Court of Appeal rightly in my view held that the trial Judge acted erroneously to have discountenanced the argument of the Counsel for the respondent on this issue. In my view, the validity of the originating processes in a proceeding before a Court is fundamental, as the competence of the proceeding is a condition sine quo non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.
However, of more fundamental nature, the respondent who was outside jurisdiction, claimed to be unaware of the suit as he was not served with the originating process outside the jurisdiction of the Borno State High Court as properly ordered by the Court. He was allegedly served by substituted means. As shown above, that was no service.
As mentioned before in this judgment, service of process on a party to a proceeding is crucial and fundamental. See Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554, (2003) FWLR (Pt. 140) 1686; S.G.B. Ltd. v. Adewunmi (2003) FWLR (Pt. 158) 1181, (2003) 10 NWLR (Pt. 829) 526; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of jurisdiction was not fulfilled. That being so, the trial Court in the instant case has no jurisdiction to hear the appellant’s application and enter judgment against the respondent in default of filing statement of defence. The proceedings as far as it affected the respondent on the 24/12/1996 was a nullity. See also Scott-Emuakpor v. Ukavbe (1975) 12 SC 41. See UBN Plc v. Okonkwo (2004) 5 NWLR (Pt. 867) 445. PER JOSEPH TINE TUR, J.C.A.
POSITION OF THE LAW ON THE CONSIDERATION OF A PRELIMINARY OBJECTION BY THE COURT
It is trite and well settled law too that a court before which a Preliminary objection was filed must treat the objection and decide it one way or another so that the objected nor would know his fate. It therefore amount to denial of fair hearing if a Preliminary Objection filed by a party is not considered or is glossed over by a court. The importance of determining a preliminary objection first before treating the substantive suit or appeal that if the preliminary objection is duly consider at the very beginning it may end or terminate the trial, in limine, thereby saving the time of the trial or appellate court in hearing the substantive suit or appeal. See Tambco Leather Works Ltd v. Abbey (1998) 12 NWLR (Pt. 579) 548 at 555; Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt. 439) 637 at 644. PER AMIRU SANUSI, J.C.A.
AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice Abuja (the lower court) delivered on 10th July, 2007 by Hon. Justice I. U. Bello. The 1st – 5th Respondents as Plaintiffs at the trial court filed an Originating Summons against the Appellant, 6th and 7th Respondents who were Defendants at the trial court.
The subject matter of the suit was a parcel of land known as plot 293 (formerly Plot 103) Cadastral Zone AO Central Business District, Abuja and covered by Statutory Certificate of Occupancy No: FCT/ABU/MISCJ3023 which the 1st – 5th Respondents claimed was unlawfully revoked from them by the 6th and 7th Respondents and subsequently allocated to the Appellant.
The brief fact of this case as could be gathered from the Record of Appeal is that the 1st – 5th Respondents as Plaintiffs at the lower court claimed against the Defendants jointly and severally as follows:
“1. DECLARATION that the purported revocation and reallocation or forcible entry/occupation (by the Defendants) of plot 293 (formerly plot 103) Cadastral Zone AO Central Business District, Abuja covered by Statutory Certificate of Occupancy No. FCT/ABU/MISC/3025 dated 4th June 1989 and registered 87/87/8 (Abuja), is arbitrary, unlawful, unconstitutional, ultra vires, null, void and of no effect whatsoever being in flagrant violation of the eloquent/mandatory provisions of Sections 36, 44 etc of the 1999 Constitution of Nigeria and Section 28 of the Land Use Act, 1978, amongst other relevant legislation.
2. AN ORDER setting aside, cancelling or invalidating the purported revocation and or reallocation of the said plot and demolition of the structures/buildings thereon by the 1st and 3rd Defendants (in favour of the 3rd Defendant or any other), and restoring the Plaintiffs’ possession and title thereto.
3. INJUNCTION restraining the Defendants from any/further entry, demolition of existing structures, or taking or continuing to take any steps in furtherance of the purported revocation/reallocation or other adverse transaction touching on the said land originally allocated by the 1st Defendant to the 1st Plaintiff, as aforesaid.
They also sought the determination of the following questions:
“1. Whether the purported revocation and reallocation or forcible entry/occupation of the subject plot 293 (in favour of the 3rd Defendant or at all), was in strict compliance with the mandatory provisions of Section 28 (1, 2, 6, 7) of the Land Use Act 1978 and Sections 36, 44 etc of the 1999 Constitution, etc.
2. If the answer to the preceding question is in the negative, whether the purported revocation and or reallocation of the said plot and forcible demolition of the structures thereon in favour of the 3rd Defendant (or at all), is legally cognizable/sustainable or otherwise liable to be quashed/invalidated.
3. Whether the block-fence and block-bungalow buildings including security-post standing/existing on the subject land prior to the Defendants’ trespass constitutes ‘development’ as contractually or statutorily defined or envisaged under the Land Use Act 1978.”
Upon being served with the Originating Summons, the Appellant filed a Notice of Preliminary Objection challenging the jurisdiction of the lower court to entertain the said Originating Summons. The 6th and 7th Respondents/1st and 2nd Defendants also filed a Notice of Preliminary Objection. The lower court granted, upon their application, leave to the 4th and 5th Respondents to be joined in the suit as co-Plaintiffs.
The Appellant and the 6th and 7th Respondents both separately filed counter affidavits to the Originating Summons.
The lower court took argument on both the Originating Summons and Preliminary Objections. It however did not give any decision on the Appellant’s Preliminary Objection but merely dismissed that of the 6th and 7th Respondents and granted the reliefs sought by the Plaintiffs. Dissatisfied with the decision, the Appellant herein filed on 9th October, 2007 a Notice of Appeal dated 5th October, 2007.
In keeping with the Rules of this Court, parties filed and exchanged briefs of arguments. The Appellant filed on 7th March, 2012 their Amended Brief of Argument dated 6th March, 2012 and they also filed Reply Briefs to the 1st – 3rd Respondents and the 6th – 7th Respondents on 6th September, 2013 and 20th November, 2013 respectively. On 23rd July 2013, the 1st – 3rd Respondents filed their Brief of argument dated 22nd July, 2013 whilst the 6th and 7th Respondents filed theirs dated 16th September, 2013 but filed on 17th September, 2013.
I have perused the issues for the determination of this Appeal variously raised by the parties and have adopted the issues raised by the Appellant for the determination of this appeal, in view of their elegance which said issues are set out below:
“1. Whether the learned trial judge was not wrong in his failure/refusal to give any consideration whatsoever to the Notice of Preliminary Objection dated 28th March, 2006 and filed on the 6th of April, 2006 by the Appellant (3rd Defendant) challenging the competence of the Originating Summons issued by the 1st to 3rd Respondents/Plaintiffs’ and whether by such failure the Appellant’s right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) was not breached?
2. Whether having regards to the legal personality of the Appellant, the provisions of Section 78 of the Companies and Allied Matters Act read together with Order 4 Rule 6, Order 11 Rules 8 of the High Court of the Federal Capital Territory (Civil Procedures) Rules 2004 and Sections 97 and 99 of the Sheriff and Civil Process Act, both the issuance and service of the Originating Summons on the Appellant at the instance of the 1st to 3rd Plaintiffs/Respondents were null, void and of no effect whatsoever?
3. Whether the learned trial judge was right and properly entertained the claim for declaratory/injunctive reliefs in the Originating Summons, especially when the facts upon which the claim was based were highly disputed such as to necessitate the calling of oral evidence in order to solve same?
4. Whether the failure by the learned trial court to terminate the proceedings which gave rise to the Ruling and judgment of the trial court delivered on the 10th of July 2007 immediately upon filing of the Notice of discontinuance dated 11th day of January, 2006 and filed on the 19th of June, 2006 rendered the Ruling and judgment a nullity?”
Issue No 1:
“Whether the learned trial judge was not wrong in his failure/refusal to give any consideration whatsoever to the Notice of Preliminary objection dated 11th March, 2006 and filed on the 6th of April, 2006 by the Appellant (3rd Defendant challenging the competence of the originating summons issued by the 1st to 5th Respondents/Plaintiffs, and whether by such failure the Appellant’s right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) was not breached?”
On behalf of the Appellant, it was submitted that a court is duty bound to consider and determine all preliminary objections raised before it against the competence of an action no matter how frivolous the objections may be Learned senior counsel maintained that it will amount to a breach of a party’s right to fair hearing to ignore the preliminary objection challenging the competence of the originating summons. He added that the lower court in its Ruling delivered on 10/7/2007 related only to the preliminary objection filed by 1st and 2nd defendants i.e. 6th and 7th respondents. See Enilolobo v. INEC (2010) 14 WRN page 155 at pages 170-171; Amgbare v. Sylva (2009) 1 NWLR (Pt. 1121) page 1 at Para 43. He urged the court on the strength of the above authorities and S. 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), to hold that failure to consider and determine his preliminary objection by the trial court amounted to a breach of the Appellant’s right to fair hearing.
Replying on this issue, Counsel for the 1st – 3rd Respondents submitted that the Appellant’s argument that the lower court not ruling one way or the other on its preliminary objection robbed it of fair hearing is misconceived more so when the lower court did not reach any decision as to warrant an appeal on the issue.
He maintained that it is trite law that a court considers facts and law before arriving at an appealable decision which is an expression of the views of the judge.
He submitted that since the lower court in this case did not reach any decision on the preliminary objection raised by the Appellant, an appeal cannot be properly maintained against it being a non-existent decision. Learned senior counsel submitted further, that such perceived omission or oversight by the lower court can at best be raised and determined as an issue of jurisdiction which can be canvassed at any time even if any party had consented to it. He referred to the cases of: – A.P.C. Ltd v. NDIC (NUB Ltd) (2006) 15 NWLR (Pt. 1002) page 404 at 457; Jadesimi v. Okotie – Eboh (1986) 1 NWLR (Pt. 16) page 264 at 281; P.E. Ltd v. Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) page 675 at 679; Alao v. V.C. Ilorin (2008) 1 NWLR (Pt. 1069) page 421 at 425.
Learned Counsel for the 1st – 3rd Respondents however pointed out that an appellate court can by Section 16 of the Court of Appeal Act, (now Section 15 of Court of Appeal Rules 2011) determine an issue omitted by the lower court as if it were a court of first instance provided the materials or processes are in the record of appeal. He also referred to:- Jadesimi v. Okotie-Eboh (supra) at 266; Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) Page 482.
He strenuously argued that the Appellant has not shown how the apparent oversight of the lower court in failing to rule on its preliminary objection had occasioned a miscarriage of justice to it since it fully participated in the proceedings, filed processes and adopted its written address.
Learned Senior Counsel submitted that it is trite law that a party alleging of fair hearing is saddled with the onus of proving the breach in the light of the facts of the case as it is not enough to make a bare allegation. He referred the court to the case of:- Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) page 443 at 465.
He maintained that where the alleged omission of the trial court relates to a jurisdictional issue, the appellate court would be perfectly entitled to evaluate the processes filed or arguments canvassed on the said preliminary objection and determine same as if it were a court of first instance. He referred to Jadesinmi v. Okotie-Eboh (supra). On this submission, the learned Silk referred this Court to paragraph 5 of the Appellant’s affidavit in support of its Preliminary objection at page 163 of the record and paragraphs 4, 5, 6, 7 and 8 of the 1st – 3rd Respondents’ counter affidavit in opposition to the Appellant’s Preliminary Objection at pages 201-202 of the record.
He again submitted that a simple comparison of the paragraphs mentioned above will leave the court with the irresistible conclusion that the Appellant was served with the processes given that uncontroverted affidavit facts are deemed admitted. He referred to Section 123 EA 2011; Ajomale v. Yaduat (No. 2) 1991 NWLR (Pt. 191) page 266 at 270; Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) page 773 at 774.
The Learned Senior Counsel urged the Court to revisit the said preliminary objection of the Appellant and determine same and to resolve this issue in favour of the 1st – 3rd Respondents.
On this issue, counsel for the 4th and 5th Respondents adopted the arguments and submissions canvassed by counsel for the 1st – 3rd Respondents.
The Appellant as 3rd Defendant in the lower court filed on 6th April, 2006 a Notice of Preliminary objection dated 28th March, 2006 challenging the competence of the Plaintiffs/1st – 3rd Respondents’ Originating Summons. See pages 158 – 171 of the Record.
The said Preliminary Objection was supported by a 7-paragraph affidavit to which was exhibited a Certified True Copy of notice of situation of the registered office of the Appellant.
The grouse of the Appellant herein, is that the lower court whilst delivering its Ruling on 10th July, 2007 made no reference whatsoever to the Preliminary Objection of the Appellant but only dealt with that of the 1st and 2nd Defendants (6th and 7th Respondents) This fact can be gleaned from pages 302 to 305 of the Record.
It is trite that the courts are duty bound to hear and determine first any Preliminary Objection before proceeding to consider a case on the merit. It is pertinent and it also accords with the principle of administration of justice, to let a party know the fate of his application whether or not the said application is properly or improperly brought before the court and it would amount to unfair hearing to ignore an objection raised by a party in his pleadings.
Thus, the lower court in this case, ought to have reached a decision on the Appellant’s Preliminary Objection placed before it. In the instant appeal there is no dispute that the learned trial court failed, refused or omitted to consider the Preliminary Objection filed by the appellant. It is trite and well settled law too that a court before which a Preliminary objection was filed must treat the objection and decide it one way or another so that the objected nor would know his fate. It therefore amount to denial of fair hearing if a Preliminary Objection filed by a party is not considered or is glossed over by a court. The importance of determining a preliminary objection first before treating the substantive suit or appeal that if the preliminary objection is duly consider at the very beginning it may end or terminate the trial, in limine, thereby saving the time of the trial or appellate court in hearing the substantive suit or appeal. See Tambco Leather Works Ltd v. Abbey (1998) 12 NWLR (Pt. 579) 548 at 555; Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt. 439) 637 at 644. Sequel to that, I am at one with the learned appellant’s senior counsel that the lower court ought to have considered the preliminary objection filed by the appellant no matter how frivolous or even stupid it may be and rule on it one way or the other. Failure of the lower court to determine the preliminary objection filed by the appellant had in my view amounted to denial of fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 and is fatal to the proceeding. However, I agree with the argument of Learned Counsel for the 1st – 3rd Respondents’ that this court is empowered by Section 15 of its Rules to determine an issue omitted by a lower court as if it were a court of first instance provided the materials or processes are in the Record of Appeal. See also Lagga v. Sarhuya (supra) at page 482.
This is an example and indec an appropriate case which this court could invoke its powers under its Rules and look at the Appellant’s Preliminary Objection rather than remit it back to the lower court as this step will ensure speedy dispensation of justice since justice delayed is tantamount to justice denied.
In considering the said Preliminary objection, the grounds upon which it is based are pertinent and are reproduced hereunder for ease of reference as follows:
“3. The Registered office of the 3rd Defendant is situated at No. 2, Maigari Road, G.R.A. Kontangora, Niger State.
4. That by reason of the situation of the registered office of the 3rd defendant, any Writ of Summons or Processes which was or is to be issued by the court for the purpose of service on the 3rd defendant, can only be issued with the leave of this court.
5. Leave of this court is necessary and a condition precedent for the validity of a Writ of Summons which is issued by this court for service on the 3rd defendant in Niger State.
6. That the 3rd Defendant cannot be served by substituted means either as an alternative to the procedure stipulated by taw for service of processes on 3rd defendant, or at all.
7. That the mandatory provisions of Sections 97 and 99 of the Sheriff and Civil Process Act 1990.
8. That by reason of the manifest disputes between the parties this suit was wrongly commenced by originating summons and ought to be commenced by a Writ of Summons.
From the grounds above, it is clear that the Preliminary Objection borders on whether or not the Appellant was served with the originating process. In order to determine this issue of service, there is need to evaluate the Appellant’s affidavit in support of the Preliminary objection at page 163 of the Record. Paragraph 5 of the said affidavit is pertinent and for ease of reference it is reproduced hereunder as follows:
“5. That the averments contained in the affidavit in support of the originating summons are highly in dispute between the parties.”
As I said above, the gamut of the appellant’s contention on the preliminary objection is centered on whether they have been properly served with originating processes. It is not in dispute that the appellant is a limited liability company. Method of service of processes in a limited liability differs from mode of service on individual or natural person.
It is also not in dispute that the registered office of the appellant is in Niger State which is outside the territorial jurisdiction of the trial court. Therefore, prior leave of the trial court must be sought and obtained in order to have a valid service in view of the provisions of Order 4 Rule 6 of the High Court of the Federal Capital Territory (Civil Procedure) Rules. There is no evidence to show that prior leave of the trial court was sought and obtained in the instant case before service of the originating processes was allegedly made/effected on the appellant.
Now let us consider how valid service of originating processes can be effected on a limited liability company. It is trite law, that all court processes to be served on a limited liability company such as the present appellant or corporate bodies must be authenticated under Section 77 of the Companies and Allied Matters Act Cap C20, Laws of the Federation of Nigeria (LFN) 2004, Vol. 3 page C20-56 which provides as follows:-
Section 77
“77- A document or proceeding requiring authentication by a company may be signed by a director/Secretary, or other authorized officer of the company, and need not be under its common seat unless otherwise so required in this part of this Act.”
With regard to court process, Section 78 of the same Act further provides that –
“78- A court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company be leaving it at or sending it by post to the registered office or head office of the company.”
My noble lords, in the light of the above provisions, permit me to examine the provisions of Order 11 Rule 5(1) and (2) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004 which provides pre-conditions for granting leave for substituted service as below:-
“5(1) Where it appears to a Court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the court may order that service be effected either by –
(a) Delivery of the document to some adult inmate at the usual or last known place of abode or business of the person to be served; or
(b) Delivery of the document to some person being an agent of the person to be served, or to some other person, on, it being, proved that there is reasonable probability that the document would in the ordinary course, through that agent or other person, come to the knowledge of the person to be served; or
(c) Advertisement in the Federal Gazette, or in some newspaper circulating within the jurisdiction; or
(d) Notice put up at the principal court house of, or a place of public resort in the judicial Division where the respective proceeding is instituted, or at the usual or last known Place of abode or of business, of the person to be served; or
(e) E-mail or any other scientific device now known or later developed and
(f) Courier service or any other means convenient co the court.
(2) An application to a Court for an Order of substituted service or other service shall be supported by an affidavit, setting the grounds on which the application is made.”
With regard to the appellant which is a limited liability company, Order 11 Rule 8 of the Rules (supra) provide as follows:
“8. When a suit is against a corporate body authorized to sue and be sued in its name or in the name of an officer or trustee, the document may be served, subject to the enactment establishing that corporation or company or under which it is registered, as the case may be, by giving the writ or document to any director, secretary, or other principal officer, or by leaving it at the corporate office.”
By the above provisions of the Rules, all court processes meant for service on a limited liability company like the appellant must be served on any of its directors, secretary, or any principal officer of the company or by leaving it at its registered or head office. This is not the position in the instant case as the above persons were not followed at all. See Udoh v. Orthopedic Hospital Management (1993) 7 SCNJ (Pt. 2) 436/444; Military Governor of Ondo State v. Adewumi (1988) 3 NWLR (Pt. 118) 646. See also Oyeyemi v. Commissioner for Local Government Kwara State (1992) 2 SCNJ (Pt. 2) 266; Arubu v. NEC (1988) 5 NWLR (Pt. 94) 328; Osho v. Phillips (1972) 1 All NLR (Pt. 1) 276 at 285; Odutola Holdings Ltd v. Ladejobi (2006) 12 NWLR (Pt. 994) 321.
I have highlighted above, what a valid and legally acceptable service of originating court process on a limited liability company like the appellant should entail. Once such laid down conditions are not met or followed or complied with there cannot be said to be a valid and subsisting service of such process and such non-compliance touches on the jurisdiction of a trial court hence the proceedings would ab initio become void or a nullity. It is my view therefore that such non-compliance with those conditions renders the proceedings a nullity. If the learned trial judge had duly considered the appellant’s preliminary objection he would have arrived at the inevitable conclusion that there was no valid service and his failure or refusal to consider the appellant’s preliminary objection amounted to denying his constitutional right of fair hearing under Section 36 of the Constitution. Such constitutional right cannot compromised or was not waived by him by the alleged taking of steps as the 1st and 2nd respondent deemed counsel argued service is fundamental and cannot be compromised. The first issue for determination is therefore thereby resolved in favour of the appellant.
Issue No. 2:
“Whether having regards to the legal personality of the Appellant, the provisions of Section 78 of the Companies and Allied Matters Act read together with Order 4 Rule 6, Order 11 Rules 8 of the High Court of the Federal Capital Territory (Civil Procedures) Rules 2004 and Sections 97 and 99 of the Sheriff and Civil Process Act, both the issuance and service of the Originating Summons on the Appellant at the instance of the 1st to 3rd Plaintiffs/Respondents were null, void and of no effect whatsoever?”
On this issue the learned senior counsel for the Appellant pointed out that in dealing with the issue of jurisdiction, the relevant material consideration by the Court is the originating process which in the instant case is at pages 1-32 of the Record. He maintained that from the said originating summons, the Appellant was sued as a limited liability company and being a registered company, the relevant provision of the Rules of practice and procedure of the High Court of the Federal Capital Territory is Order 11 Rule 8.
Learned senior counsel also referred to Section 78 of Companies and Allied Matters Act (CAMA), 2004 and maintained that the community reading of Order 11 Rule 8 & Section 78 CAMA makes it imperative on any party who has set out to sue a limited liability company to conduct a search at the Corporate Affairs registry in order to determine the registered office of the company and the particulars of directors or secretary of the company for the purpose of effecting valid service of the originating summons issued against the company.
He argued that the search would have led the 1st – 3rd plaintiffs/Respondents to finding that the registered office of the Appellant is situate at No. 2 Maigari Road, GRA Kontangora, Niger State which is outside the Jurisdiction of the High Court of Justice of the Federal Capital Territory.
Learned silk for the Appellant contended that for a valid originating summons to be issued against the Appellant, whose registered office is outside the territorial jurisdiction of the lower court, leave of the lower court must first be sought for and obtained. He referred to Order 4 Rule 6 High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004.
He maintained that since such leave was not sought in the instant case, the originating summons issued was null, void and of no effect whatsoever and referred to the case of: D.E.N.R. Ltd v. Trans International Bank Ltd (2008) 18 NWLR (Pt. 1119) page 399 at 429 per Ogbuaju, JSC.
Learned senior counsel also submitted that the service of the originating summons on the Appellant vide substituted means was invalid and referred to Mark v. Eke (2004) 5 NWLR (Pt. 865) page 54 at pages 79-80 per Musdapher, JSC (as he then was).
Senior Counsel for the Appellant argued that assuming but without conceding that the order for substituted service was properly made, the said order was not strictly complied with. He referred the Court to pages 33-34 of the Record and page 149 of the Record.
He maintained that the originating summons was issued without due compliance with the conditions precedent for the issuance of a valid Originating Summons and urged the court to hold that all the proceedings held in respect of the said Originating Summons were null, void and of no effect whatsoever.
He further submitted that even if the Originating Summons was properly issued, it was necessary in view of the registered office of the Appellant for the process to comply with the provisions of Sections 97 and 99 of the Sheriffs and Civil Process Act which the 1st – 3rd Plaintiffs/Respondents failed to do. He referred to the cases of:- Idris v. Archibong (2001) 9 NWLR (Pt. 718) page 447 at 459 per Ekpe, JCA; Nwabueze & Anor v. Okoye (1988) 4 NWLR (Pt. 91) page 664.
Learned senior counsel then urged this Court to hold that the Originating Summons was incompetent for failure to comply with the conditions precedent for its validity and ought to be set aside as no valid proceedings could have been held on an incompetent process no matter how well conducted.
Responding on this issue, counsel for the 1st – 3rd Respondents maintained that they were constrained in their circumstance to seek and procure order of court to effect service of the originating summons and all processes in this suit as the address for service of the Appellant was unknown prior to the institution of the suit and all efforts made to get same from the 6th – 7th Respondents met brick Wall.
He drew a distinction between the service of an originating process on a limited liability company whose registered office address is known as opposed to one whose address is unknown and referred to the case of, Mark v. Eke (supra) cited by the Appellant.
Learned senior counsel also referred to:- Order 11 Rule 12 of the FCT High Court (Civil Procedure) Rules of 2004; Eimskip Ltd. v. Esquisite Ind. Ltd (2003) 4 NWLR (Pt. 809) page 88 at 121; United Nigeria Press Ltd v. Adebanjo (1969) 1 ANLR 431 at 423; Rivers State Govt. v. Specialist Consult (2005) 7 NWLR (Pt. 923) Page 145 at 172.
He maintained that it was equally good service for the 1st – 3rd Respondents who procured and executed an order of court for service of the originating processes by pasting at the res, aimed to bring the pendency of the suit to the notice of the Appellant who was erecting a building thereon, which fact was not controverted on comparison of the affidavits filed in the Preliminary Objection.
On this issue, counsel for the 4th and 5th Respondents also adopted the arguments and submissions canvassed by counsel for the 1st – 3rd Respondents.
The Appellant’s complaint on this issue is that service of the originating process was not properly effected on it because being a limited liability company, the service ought to be at its registered office.
On service of Originating process and other processes on a limited liability company, see Section 78 of the Companies and Allied Matters Act (CAMA), 2004 supra and Order 11 Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 are pertinent which are reproduced hereunder for ease of reference.
Section 78 CAMA, 2004:
“A court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at, or sending it by post to the registered office or head office of the company.”
Order 11 Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004:
“When a suit is against a corporate body authorized to sue and be sued in its name or in the name of an officer or trustee, the document may be served, subject to the enactment establishing that corporation or company or under which it is registered, as the case may be, by giving the writ or document to any direction, secretary or other principal officer, or by leaving it at the corporate office.”
A combined effect of the provisions of the Laws reproduced above, shows that the mode of service on a limited liability company like the Appellant is at its registered office.
I am mindful of the fact that the 1st – 3rd Respondents, at pages 33 & 34 of the Record, filed a Motion Ex-parte dated 13th January, 2006 praying the lower court for the following Orders:
1. An Order for substituted service on the Defendants through the office of the Honourable Minister, FCT Area 11, Garki Abuja of the Originating Summons and all processes meant for service on the 3rd Defendant whose address is unknown.
2. An order of interim injunction restraining the Defendants jointly and severally from further entry, demolition or clearing of site or commencement of any excavation of land for purposes of any building/construction work and generally from proceeding with further building or other operations on the land subject of this suit being plot 293 (formerly plot 103) Cadastral Zone, AO Central Business District, Abuja covered by Statutory Certificate of Occupancy No. FCT/ABU/MISC/3223 dated 4/6/89 and registered 87/87/8 (Abuja) pending the determination of the Motion on Notice for Interlocutory Injunction.”
They averred in paragraphs 5, 6, 7 & 13 of their affidavit in support of the Motion at pages 36 – 37 of the Record that:
“5. That Plaintiffs’ investigation revealed that the 1st Plaintiff’s title over the land had been revoked by the 1st Defendant and same re-allocated to the 3rd Defendant, a private company.
6. That the Plaintiffs never received any revocation notice prior to the revocation which was effected other than for public purpose.
7. That the Plaintiffs have promptly filed an originating summons for the determination of the rights of the parties and it is necessary that the status quo be maintained pending the court’s decision.
13. That the 1st/2nd Defendants have bluntly refused to divulge the physical address of the 3rd Defendant to whom the purported re-allocation was made and it is reasonably probable that the processes in this suit can be served on the 3rd Defendant through the 1st/2nd Defendant.”
Also, paragraph 14 of the 1st – 3rd Respondents’ affidavit in support of the Originating Summons is pertinent and is reproduced thus:
“14. That the 1st & 2nd Defendants have bluntly refused and or neglected to disclose to the Plaintiffs the address of the 3rd Defendant to whom they purportedly reallocated the res thereby shrouding the purported revocation/reallocation in questionable secrecy. The Plaintiffs’ further search at the Corporate Affairs Commission was handicapped and revealed nothing.”
The Supreme Court per Tobi, JSC in Eimskip Ltd v. Exquisite Ind. Ltd (supra) at page 121 whilst considering a similar provision in the Federal High Court Rules stated thus:
“The Rules of the Federal High Court which were in force at the material time will be helpful. Order X rule 11 provides that where the suit is against a defendant residing out of, but carrying on business within the jurisdiction in his own name or under the name of a firm through an authorized agent and such suit is limited to a cause of action which arose within the jurisdiction, the writ or document may be served by giving it to such agent, and such service shall be equivalent to Personal service on such defendant.”
Thus, for Order 11 Rule 12 to be invoked, the defendant must be carrying on business within the jurisdiction of the court in his own name or under the name of a firm through an authorized agent and the cause of action must have arisen within the jurisdiction.
The subject matter of the suit herein is a plot of land situated in the Federal Capital Territory and the Appellant at the material time was erecting a building thereon so it had agents working on its behalf on the land. Even if it is true that appellant was erecting building, such building is not its head or registered office and it does not have its secretary or directors there who could be served on its behalf. The provisions of Order 11 Rule 12 could not therefore apply here.
I must also state here that the essence of service of Originating Processes as well as other processes in our procedural law is to ensure that a party is made aware of the pendency of a suit against it. It is for all intent and purposes to put a Defendant on notice but in this case, such purport was not met since appellant denied service of the originating processes. See United Nigeria Press Ltd. v. Adebanjo (supra) at page 423; Rivers State Govt. v. Specialist Consult (supra) at 172.
I do not at all share the view proffered by the 1st and 2nd respondents’ learned counsel, that the address of the appellant was unknown. If a little diligence was applied by their learned counsel by making search with Corporate Affairs Commission, they would have been furnished with the address of the registered or head office of the appellant at Maigari Road in Minna, Niger State even if it was true that the Abuja address was demolished. It is therefore of no moment to say that they resorted to serve them by substituted means vide the Ex parte motion they filed at the lower court. Section 78 of the CAMA is clear and had made adequate provisions on how a limited liability company could be served. See also Order 11 Rule 8 supra. I must say here that the substituted service allegedly made on the appellant was improper, null and void as a limited liability company in this circumstance cannot be served through substituted means except as provided by Section 78 of the Act and Order 11 Rule 8 of the trial Court Rules. In fact, the Supreme Court in the case of (1) Kalu Mark and (2) Mar-Prik Linder Shines Ltd v. Gabriel Eke (2004) 5 NWLR (Pt. 865) 54 had this to say at page 79 per Dahiru Mustapher, JSC (as he then was) –
“Now the appellants denied service of the originating process and only became aware of the existence of the suit, when the respondent together with the bailiffs and policemen went to their premises to attach goods in the execution of the judgment. The respondent swore to an affidavit that service was effected and he attached to his counter-affidavit, the affidavit of service sworn to by the bailiff. Now, the affidavit of service sworn to by the bailiff shows that there are two defendants, one an individual, (the 2nd appellant; the first appellant and two, a limited liability company. The bailiff stated that he effected the service by substituted means. He claims pasted upon the defendant’s doors…” In my view, this is not good enough. The affidavit of service must be a proper affidavit of service proving due service of the writ. The second appellant as the 2nd defendant is a limited liability company. The mode of service on a limited liability company under the relevant rules of court is different from service of process on a natural person such as the appellant. The Companies and Allied Matters Act by Section 78 makes a provision as how to serve documents generally or any company registered under it. By this, a court process is served on a company in the manner provided by the rules of Court. A service on a company, as is provided, must be at the registered office of the company and it is therefore bad and ineffective if it is done at a branch office of the company; see Watkins v. Scottish Imperial Insurance Co. (1889) 23 QBD 285. The procedure is by giving the writ to any director, trustee, secretary or other principal officer at the registered office of the company or by leaving the same at its office. That is why I am of the view that the affidavit of service by substituted means sworn to by the bailiff is not enough to prove that 2nd appellant was duly served with the originating summons. I cannot see the need or the necessity of making a substituted service on a corporation such as the 2nd appellant. See Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt. 123) 523. The need for substituted service arises because personal service cannot be effected and since personal service can only be effected on natural or juristic persons, the procedure for substituted service cannot be made to a corporation like the 2nd appellant herein Sloman v. Government of New Zealand (1875) 1 CPD 563; Hillyard v. Smyth (1889) 36 WR 7. So, no matter how you look at it, the 2nd defendant, the 2nd appellant herein, could not be said to have been properly served. The affidavit sworn by the bailiff could not be sufficient proof of service of the process on the 2nd appellant. So in the situation such as this, there is even no need for the trial Judge to call for oral evidence to resolve the contradictory positions taken by the parties, the respondent had offered no credible evidence to show that the 2nd appellant was served with the originating process. Therefore, based on the available credible evidence the 2nd appellant had shown that it had not been served with the originating process.” (emphasis supplied)
Thus, while considering the first issue, I have also dealt partly with the question posed on this second issue and I therefore adopt the relevant finding in the 1st issue and apply them to bear on this second issue.
This brings me to the point raised as to whether the 1st to 3rd respondents had complied with Section 96 and 97 of Sheriffs and Civil Process Act. Section 96 of Sheriffs and Civil Process Act Cap 407 LFN reads as follows:-
Section 96 (1) and (2) of the Sheriff and Civil Process Act speaks for itself and it reads thus:-
“(1) A Writ of summons issued out of or requiring the Defendant to appear at any Court of a State or the Capital Territory may be served on the Defendant in any other State or the Capital Territory.
2) Such service may, subject to any rules of Court which may be made under this Act, be effected in the same manner as if the writ was served on the Defendant in the State or the Capital Territory,” Underlining is ours for emphasis” (emphasis supplied).
By the provisions of Section 97 of the Sheriff and Civil Process Act Cap 407 LFN, every Writ of Summons issued for service outside the jurisdiction of the Court of a State or of the Federal Capital Territory is required to be endorsed and same must be endorsed with a clear notice that it is to be served out of the jurisdiction of the issuing court in a defendant or another State outside jurisdiction. A close look at Exhibit C which was issued by the lower court clearly shows that there was no such endorsement as required by these provisions of the Act.
It is settled law that, where there is failure to serve process of court as required in this instant case, such failure to serve goes to the root of the case. This is so, because it is the service of the court process that confers on the court, the competence and jurisdiction to adjudicate on the matter. Service of process is therefore a condition precedent to the hearing of the suit. Where a party who ought to be served with court process is not so served, such defendant is entitled Ex Debito Justifiaet to have the order or judgment of court set aside for being a nullity and such failure to serve the processes is a fundamental defect or omission which renders the proceedings a nullity and thereby also robs the court the jurisdiction to adjudicate on the matter or suit.
See Mr. Sylvester Maku v. Barrister Felicia B. Umoh (2010) LPELR-4463; Owners of MV Arabella v. Nigeria Agricultural Insurance Corporation (2005) 34 NSLQR (Pt. 11) 109. It is therefore my considered view that the issuance and service of the originating summons on the appellant having not been in strict compliance with the provisions of Sections 96, 97 and 99 of the Sheriffs and Civil Process Act and Rules of the trial court is null, void and of no effect whatsoever. The originating summon is therefore hereby declared by me as null and void and is accordingly struck out. The second issue is therefore resolved against the 1st and 2nd respondents and in favour of the appellant herein.
Having declared the originating process null and void and rendering the lower court bereft of jurisdiction, I ordinarily need not proceed to consider other issues. However in the event that I am wrong, I will still proceed to consider other issues for whatever they are worth.
Issue No. 3:
“Whether the learned trial judge was right and properly entertained the claim for declaratory/injunctive reliefs in the Originating Summons, especially when the facts upon which the claim was based were highly disputed such as to necessitate the calling of oral evidence in order to solve same?”
Learned senior counsel referred the court to the principal relief of the 1st – 5th Respondents in their Originating Summons before the trial court and pointed out that the relief was declaratory and in respect of plot 293 (formally Plot 103) Cadastral Zone AO Central Business District Abuja which they claimed was unlawfully revoked from the 1st Respondent and reallocated to the Appellant.
He maintained that generally the relief a party is seeking from the court will definitely determine the approach to be adopted by the person seeking such relief and that where a party seeks for a declaratory relief which requires proof by credible evidence such a party cannot commence the action by way of an Originating Summons.
He referred the court to the cases of:- Arewa iles Plc v. Fintex Ltd (2003) 7 NWLR (Pt. 819) page 322 at 339-340, J. M. Kodillinye v. Mbanefoodo (1935) vol. 11, WACA page 336.
Counsel for the Appellant maintained that this cannot be achieved by way of affidavit evidence as was done by the 1st – 5th Respondents at the trial court. He referred to Orianwo v. Orianwo (2001) 5 NWLR (Pt. 707) page 516 at 523.
He argued that a party can only commence an action by Originating Summons where the principal question in issue is or is likely to be one of a written law or in circumstances where there is no likely dispute as to the fact. He referred the court to the cases of:- Egbarin v. Aghogovbin (2003) 16 NWLR (Pt. 846) page 380; NEPA v. Ugboya (1998) 5 NWLR (Pt. 548) page 106.
Ajagungbade v. Adeyele (2001) 16 NWLR (Pt. 738) page 26 Page 201.
Learned senior counsel referred the court to paragraph 7 of the 1st – 5th Respondents’ Affidavit in support of the Originating Summons at page 9 of the Record, paragraphs 5(a) and (b) of the Appellant’s counter Affidavit to the Originating Summons at page 245 of the Record and paragraph 5(c), (f), (g) and (h) of the 6th and 7th Respondents’ counter Affidavit against the OS at pages 228-229 of the Record.
He maintained that a community reading of the above quoted portions of the affidavit in support of the Originating Summons and the counter Affidavit against the said originating summons shows the existence or conflict with respect to the issue that borders on whether or not there was structure or improvement on the said property in line with the requirement of the terms of offer contained in the certificate of occupancy granted the 1st Respondent.
Learned senior counsel submitted that when faced with a situation of this nature, the court has a duty to resolve the conflict in the Affidavits by calling oral evidence and referred to the cases of:-
NEPA v. Arobieke (2006) 7 NWLR (Pt. 979) pages 245-255; 7-UP Bottling Co. Plc v. L.S.I.R.B. (2000) 3 NWLR (Pt. 650) page 565; Anuka Community Bank Ltd v. Olua (2000) 12 NWLR (Pt. 682) page 641; Falobi v. Falobi (1976) 1 NWLR 169; Military Administrator, FHA v. Aro (1991) 1 NWLR (Pt. 168) page 408; Arjay Ltd v. Airline Management Support Ltd (2000) 8 NWLR (Pt. 670) page 636 at 643.
He further submitted that failure of the trial court to do this has caused a miscarriage of justice to the Appellant and urged the Court to resolve this issue in favour of the Appellant.
Learned senior counsel further submitted that assuming without conceding that this Court holds that the trial court could have resolved this issue without the necessity of calling evidence, the trial court was wrong in the conclusion it made with respect to the issue that there was structure on the said land upon which the reason stated for the revocation of the land from the 1st Respondent in the said notice of revocation cannot be sustained.
He maintained that this is so because even the 1st – 3rd Respondents had indirectly admitted the fact that the structure on the land was not such that could have been described as an improvement or building within the true meaning of the terms in the Certificate of occupancy offered the 1st Respondent.
Learned Senior Counsel submitted that the structure on the said piece of land cannot by any stretch of imagination be said to have complied with the terms of the grant of the Certificate of Occupancy No. FCT/ABU/MISC/3023 granted to the 1st Respondent.
He referred the Court to clauses 10 and 12 of the said Certificate of Occupancy at pages 41-42 of the Record.
He maintained that the deposition in the said paragraph 7 of the Affidavit in support of the Originating Summons is indeed an admission that the said parcel of land was not used by the 1st Respondent for the purpose of shopping centre and offices as required by the letter of grant of the Certificate of Occupancy since the 1st Respondent merely constructed a bungalow on the said piece of land which was occupied by the personal aide of late Chief Engr. Mark Chukwuemeka Okoye as their residence.
Learned senior counsel submitted that this a breach of the fundamental terms in the said Certificate of Occupancy granted the 1st Respondent upon which the said Certificate of Occupancy can be revoked as the terms contained in a Certificate of Occupancy are to be strictly complied with. He referred to the cases of: CSS Bookshops LTD v. RTMCR5 (2006) II NWLR (Pt. 992) page 530 at 582 – 583.
He further submitted that the letter of Revocation of the said parcel of land served on the 1st Respondent clearly stated that the Revocation was done on account of the 1st Respondent’s continued contravention of the terms of development of the Right Of occupancy.
Learned senior counsel maintained that the erection of a fence together with a multi-room bungalow cannot, for all intents and purposes, be a development within the true meaning of the terms of offer contained in the said Certificate of Occupancy. He contended that the findings of the trial court runs contrary to the evidence adduced before the court and urged this court to discountenance the findings.
Counsel for the Appellant also argued that the learned trial judge made findings based on submissions of counsel in the written address and referred to page 309 of the Record.
He submitted that it is trite that the address of Counsel no matter how beautifully and intelligently couched or made cannot take the place of evidence and referred to the cases of:- Archibong v. Edak (2006) 7 NWLR (Pt. 980) page 485-488; Harka Air Services Ltd v. Keazor (2006) 1 NWLR (Pt. 960) pages 160-171; FBN Plc v. ACB Ltd (2006) 1 NWLR (Pt. 963) page 438 at 480-481.
Learned senior counsel further submitted that the finding of trial Court not having been borne out of the evidence before it but rather from written address of Counsel cannot be allowed to stand but should be discountenanced by the court and urged the Court to resolve this issue in favour of the Appellant.
In his response on this issue, Counsel for the 1st – 3rd Respondents pointed out that the Appellant never challenged or disputed the substantive Judgment being appealed and thus has implicitly conceded non-existence of any substantive dispute of fact inter parties. He referred to: UBA Plc v. BTL Ind. Ltd (2006) 19 NWLR (Pt. 1013) page 61 at 81; Krans Thompson Org. Ltd v. UNICA (2004) 9 NWLR (Pt. 879) page 631 at 642; Habib Nig Bank Ltd v. Ochete (2001) 3 NWLR (Pt. 699) Page 114 at 135 per Umoren, JCA, A.G. Anambra v. A.G. Federation (2005) 9 NWLR (Pt. 931) page 572 at 638-639.
Learned Senior Counsel argued that an exception to the general rule that oral evidence need be called to resolve conflicting affidavit is that where there are documentary as well as oral evidence before the court, documentary evidence can suo motu resolve such conflicting evidence. He referred the court to the case of:- P.A.S.T.A. v. Babatunde (2008) 8 NWLR (Pt. 1089) Page 267 at 291.
He submitted that materiality or other wise of any affidavit conflict has to be juxtaposed with the substantive reliefs sought by the 1st – 3rd Respondents as well as available documentary evidence placed before the Court in support thereof and referred to the cases of:- A.G. Anambra v. A.G. Federation (supra); Adedeji v. Oloso (2007) 5 NWLR (Pt. 1026) page 133 at 159; Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) page 489 at 589.
He also referred the court to the 1st – 3rd Respondents’ deposition at pages 8-11 of the record (7 & 12) Appellants counter Affidavit at page 244-247 of the record (5a and 5b) and the 6th – 7th Respondents Counter – Affidavit at pages 277 – 231 of the record (5a, b and c). Learned senior counsel maintained that from a combined reading of the above paragraphs of the affidavit exchanged inter parties, the following facts emerged as undisputed:-
I. The 1st Plaintiff was originally allocated plot No. 103 (now Plot 293) Cadastral Zone AO, Central Business District, Abuja.
II. The said plot was later revoked by the 3rd Respondent in purported exercise of powers conferred on him under the Land Use Act, 1978.
III. The said plot was later reallocated to the Appellant, a limited liability company and a private developer, for private development.
He contended that the pith of the 1st – 3rd Respondents case is “whether the 6th Respondent can validly revoke the res in exercise of the power conferred on him by virtue of Section 28 of the Land Use Act, 1978 and proceed to re-allocate same to a private developer”.
He submitted that based on the said admissions by the Appellant on the relevant facts necessary for judicial determination of the case, the commencement of the action by way of originating summons is proper and cannot be faulted and referred to the cases of: – National Bank of Nigeria & Anor v. Lady Alakija & Anor (1978) 10 SC page 42 at 52; Inakoju & Ors v. Adeleke (2007) 4 NWLR (Pt. 1025) page 423 at 571.
Learned Senior Counsel further submitted that applying the law to the undisputed facts of this case, the 6th Respondent (i.e. the FCT Minister lacked the power to revoke interest of a holder of a statutory certificate of occupancy for the purposes of reallocating same to a private developer as such exercise is perceived short of a public purpose or overriding public interest envisaged under Sections 28(1)(2) & 51(1) Land Use Act. He referred to the cases of:- Osho v. Foreign Finance Corp & Anor (1991) 4 NWLR (Pt. 184) page 157; CSS Bookshop v. Reg. Trustees Muslim Community (2006) 11 NWLR (Pt. 992) page 530 at 578, Adole v. Gwar (2008) 11 NWLR (Pt. 1099) page 562; Dantsoho v. Mohammed (2003) 6 NWLR (Pt. 817) page 457; Estate of Abacha v. Eke-Spiff (2009) 7 NWLR (Pt.1139) page 97.
He maintained that this was the verdict reached by the trial Court against the Backdrop of the pertinent documentary evidence and admitted facts placed before it.
Counsel for the 1st – 3rd Respondents submitted that the lower court was right in determining the questions posed by the 1st – 3rd Respondents and in granting the reliefs thereon without the need for pleadings or oral evidence to resolve any perceived irrelevant conflict as no such conflict exist within the narrow compass of the relevant facts and issues presented for determination at the lower court.
He urged the court to resolve this issue in their favour having proven that there are no relevant/substantial dispute of fact on the issues joined between the parties vis-a-vis the reliefs claimed as to warrant an order for pleadings and trial.
It is trite that where substantial dispute of facts are lacking in the affidavit evidence of parties to warrant full blown trial, an action can be commenced by originating summon. This was re-echoed by this Court in Habib (Nig) Bank Ltd v. Ochete (supra) when it stated thus:
“I may as well observe that I am unable to focus my mind on any case that comes to court which is not as a result of one dispute or the other. In fact the courts exist for settlement of disputes. The courts would cease to have relevance if there are no disputes at all. I can hardly agree with the interpretation placed on O. 1 r. 2(2) (b) by the appellant that whenever there was disputes of fact, the suit should be commenced by a writ of summons rather than originating summons. The rule itself as reproduced above is concerned with substantial disputes of fact.” (Underlining Mine)
Also in Famfa Oil Ltd. v. A.G. Federation (supra) at 467, the Supreme Court re-emphasized this position of the law when it held that:
“The very nature of an originating summons is to make things simpler for hearing….. It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the pleadings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his rights.”
As can be gleaned from the reliefs sought by the Plaintiffs at the lower court reproduced earlier in this judgment, the principal question which they sought that court to determine is whether or not the 6th Respondent i.e. the Minister of Federal Capital Territory can validly revoke the Plaintiffs’ title to the res in exercise of the powers conferred on him by virtue of Section 28 of the Land Use Act, 1978 and then proceed to reallocate same to a private developer.
In other to determine whether there are substantial dispute of facts between the parties as to whether the 1st Plaintiff’s title to the res was revoked and then reallocated to the Appellant, a private developer, it will be needful to examine the affidavit evidence of the parties herein.
I have perused the depositions of the parties herein and Paragraphs 7 & 12 of the deposition by one Mark Chukwuemeka Okoye, Jnr. at page 9 of the Record in support of the Plaintiffs’ claim, Paragraph 5(a) & (d) of the Appellant’s counter-affidavit at pages 245 of the Record and Paragraph 5(a), (h) & (p) of the 6th – 7th Respondents’ counter affidavit at pages 228 of the Records are pertinent and are reproduced hereunder for ease of reference as follows:
“7. That the plot of land located within the Central Business District, Abuja comprising the subject of this suit was, for consideration, allocated to the Plaintiff company vide Certificate of Occupancy No. FCT/ABU/MISC/3023 whereupon in exercise of its title the said property by fencing same (on three sides) with cement blocks and erecting thereon multi-room block-bungalow buildings including security post occupied at all material times till date by numerous tenants including Ibrahim Ishaya and John Nnorom who served the deceased as his driver until death. Copy of the relevant Certificate of Occupancy is herewith filed as Exhibit D.
12. That upon enquiry from the interlopers, the 3rd Defendant claimed that the 1st Plaintiff’s interest/title over the land had been revoked by the 1st/2nd Defendants and same secretly re-allocated to the 3rd Defendant, a private company; moreso devoid of any pre-revocation notice sent to or received by any of the Plaintiffs (including through the 2nd Plaintiff) whose service/office address and interest in the land is well-known to the 1st Defendant including as disclosed in Exhibit F which the latter received.”
“5. That I am informed on 15th day of September, 2006 at about 3:30p.m. by one Miss Ijeoma Ikedikwu the Legal Officer of the 3rd Respondent which I verily believe her to be true and correct as follows:
(a) That the Ist Plaintiff’s Right of Occupancy over the Plot of land known as Plot 293 (formerly Plot 103) Cadastral Zone AO Central Business District, Abuja covered by Statutory Certificate of Occupancy No. FCT/ABU/MISC/3023 dated 4th June 1989, had since the 10th day of May, 2005, been validly revoked by the r’ Defendant, and the 1st Plaintiff has long seized to be in possession of the said property.
(d) That after the revocation of the 1st Plaintiff’s Plot of land by the Ist Defendant, the 3rd Defendant duly applied for reallocation of the said piece of land in line with the accelerated development programme within the Federal Capital Territory and by a letter dated 02/08/05, the 1st Defendant conveyed to the 3rd Defendant its approval of the grant of the said Plot Number 293 in Cadastral Zone AO of Central Business District, measuring approximately 6,000.00 sq.m. A copy of the letter of award from the 1st Defendant to the 3rd Defendant is hereto attached and marked Exhibit TO 1”
“5. That on the 19th day of April, 2007 at about 2:30p.m., I was informed by Ms. Oluwaseun Oni, a Higher Estate Officer in her officer (sic) at the Abuja Geographic Information System, 416E Kumasi Crescent, Wuse II, Abuja (the Land Administration Agency of the 1st and 2nd Defendants) of the following facts which I believe to be true:
(a) That, sometime ago, the Ist Plaintiff applied for and was allocated plot parcel of land being and known as Plot No. 103 located in Central Business District Abuja and covered by Certificate of Occupancy No. FCT/ABU/MISC/32023.
(h) That on the 10th day of May, 2005, the Honourable Minister of the Federal Capital Territory in exercise of powers conferred on him under the Land Use Act revoked the Right of Occupancy granted to the 1st Plaintiff herein over and in respect of Plot No. 103 (now plot 293) Central Business District Abuja and covered by Certificate of Occupancy No. FCT/ABU/MISC/3202. Annexed, marked Exhibit B is a copy of the Notice of Revocation.
(p) That after the revocation, the plot was allocated to the 3rd Defendant under the Accelerated Development Program of the Federal Capital Territory Administration to ensure the rapid development of the Federal Capital Territory as the Plaintiff has not demonstrated any intention of developing the property.”
I have highlighted above some averments in affidavits in support of the originating summons and also in the counter affidavits filed by the defendants/respondents at the lower court. There is no gain saying that some of the fact in the affidavits are admitted and not disputed but it is also true that there are also some far reaching averments stating facts which are vehemently disputed. Even if it is true that the appellant did not challenge or dispute all of the facts, it is not true, as submitted by the learned senior counsel for the 1st to 3rd respondents, that the appellant did not dispute some of those facts. There are therefore some conflicts in the two sets of affidavits averred or sworn to by the parties and some of the disputed facts have been exemplified in the parties’ affidavit and also highlighted above. This now brings me to the propriety of the commencement of the suit of the plaintiff at the lower court by means of originating summons rather than him taking writ of summons.
The law is well settled that originating summons maybe employed to commence an action where the issue involved is one of the construction of a written law, deed, instrument will, or other document or some question of pure law is involved or where there is unlikely to be any substantial dispute on issues of fact between the parties as in this instant case. To my mind, this is an example of a case which originating summons ought not be used or employed because there are crucial facts which were very contentious in the cause. See Keyamo v. House of Assembly, Lagos State & Ors (2002) LPELR-1689 SC; Famfa Oil Ltd v. A.G. Federation (2003) 18 NWLR (Pt. 852) 453 or (2003) 9-10 SC 31; Doherty v. Doherty (1968) NMLR 241; originating summons is used only in a suit/action which is non-contentious and ought not be used in hostile proceedings. See Osuagwu v. Emezi (1968) 12 NWLR (Pt. 579) 640; Director SSS v. Agbakoba (1999) 3 NWLR (Pt. 595) 425. A cursory look at the claims/reliefs sought by the plaintiff in the suit before the lower court shows that the lower court was confronted with the question whether or not the 6th respondent i.e. the Hon. Minister of Federal Capital Territory could validly revoke the plaintiff’s title to the Res in exercise of the powers conferred on him by Section 28 of the Land Use Act 1978. From the depositions by parties in their respective affidavits, there is no doubt that disputes really exist which could at best be resolved through oral evidence by witnesses especially by use of writ of summons. There is no doubt and as submitted by the learned appellant’s counsel, the learned trial judge in arriving at his conclusion or in an effort to resolve the disputes resort to acting on or basing his judgment on written address of the learned counsel to the respondent which in my opinion does not have the force of evidence. As I posited above, the plaintiff wrongly used or invoked originating summons to institute his action before the lower court. This third issue is also resolved in favour of the appellant against the respondents.
Issue 4:
“Whether the failure by the learned trial court to terminate the proceedings which gave rise to the Ruling and judgment of the trial court delivered on the 10th of July 2007 immediately upon filing of the Notice of discontinuance dated 16th day of January 2006 and filed on the 19th of June, 2006 rendered the Ruling and judgment a nullity?”
On this issue, the learned counsel for the Appellant referred the court to the Notice of discontinuance filed on 19th January, 2006 after the issuance of the as by the plaintiffs (1st – 3rd Respondents) on 16th January, 2006.
He contended that the Notice of discontinuance though filed was not served on the Appellant and the trial court ignored it and proceeded with the purported proceedings leading to the Ruling and judgment of the trial court delivered on 10th July, 2007.
Learned senior counsel submitted that the entire proceedings leading to the judgment appealed against were a nullity and consequently no valid Ruling and or Judgment could have been delivered by the trial Court since the action was terminated upon filing the notice of discontinuance. He referred to:- Ogunkunle v. Eternal Sacred Order of Cherubim and Seraphim (2007) 12 NWLR (Pt. 727) page 359 at 371-372.
He urged the court to hold that from the 19th January 2006 when the said Notice was filed by the 1st – 3rd Plaintiffs/Respondents, no valid proceedings were conducted by the trial court and that the Ruling and Judgment delivered by the trial court on 10th July, 2007 was null and of no effect whatsoever and urged the Court to resolve the issue in favour of the Appellant.
In their response on this issue, Counsel for the 1st – 3rd Respondents argued that they had discontinued suit No – FCT/HC/CV/1056/2006 as of right vide their Notice of Discontinuance dated 16/1/2006 and filed 19/1/2006 while it continued with suit No: FCT/HC/CV/1057/2006 dated 13/1/2006 and filed 16/1/2006. He referred to: – Minister for Works & Housing v. Tomas (Nig.) Ltd (2002) 2 NWLR (Pt. 752) page 740 at 765.
He maintained that their discontinuation of suit No:- FCT/HC/CV/1056/2006 as of right did not in any way preclude them from instituting suit No: FCT/HC/CV/1057/2006 for the same cause of action against the same parties and cannot be used as a defence by the adverse parties and referred to Order 27 Rule 4 FCT High Court (Civil Procedure) Rules 2004 and the case of:- Ojabo v. Inland Bank (Nig) Plc (1998) 1 NWLR (Pt. 574) page 433 at 439.
Learned Senior Counsel submitted that the instant appeal arose from the final Judgment in suit No. 1057/2006 in which all the parties participated and not suit No. 1056/2006 which was never appealed or any record of appeal transmitted on it.
He urged the Court to resolve this issue in their favour as this Court lacks jurisdiction to embark on a jamboree of conjecture, amendments or substitution of suit numbers as being urged by the Appellant in disregard of the self-explanatory court processes placed before it in the record of appeal.
On this issue, the Appellant is urging this court to declare the proceedings which gave rise to the judgment of the lower court delivered on 10th July 2007 a nullity on the grounds that the 1st – 3rd Respondents filed a Notice of Discontinuance on 19th January 2006 after they had filed their Originating Process on 16th January, 2006.
Order 27(2)(1) of the Federal Capital Territory (Civil Procedure) Rules 2004 is pertinent and it states as follows:
“A plaintiff in an action may, without the leave of the Court, discontinue the action, or withdraw any particular claim made by him against any or all of the defendants at any time not later than 14 days after service of the defence on him or if there are two or more defendants, or the defence last served, by serving a notice to that effect on the defendants concerned.”
In Minister of Works & Housing v. Tomas Nig. Ltd. (supra) at page 765, Bulkachuwa, JCA on the provision of Order 30 Rule 2(1) of the Federal High Court (Civil Procedure) Rules 2000 which is in pari materia with Order 27 Rule 2(1) of the Federal Capital Territory (Civil Procedure) Rules 2004 stated as follows:
“Order 30 rule 2(1) of the applicable rules of court:
“A plaintiff in an action may, without the leave of the Court, discontinue the action or withdraw any particular claim made by him therein as against any or all of the defendants at any time not later than 14 days after service of the defence on him or, if there are two or more defendants of the defence last served, by serving a notice to that effect on the defendant concerned.
It does appear on the face of this rule; a plaintiff may withdraw or discontinue a claim without leave when no statement of defence has been filed or within 14 days of the filing of the statement of defence. It is also true that when an action is withdrawn an appeal in that action becomes ipso facto vacated – see Onybeare v. Lewis (supra). It is generally taken that the appeal becomes no longer necessary as it will serve no purpose since the substance has gone. It would ordinarily amount to an academic exercise, and the courts must always avoid indulging in academic exercise……”
Thus, the 1st – 3rd Respondents as Plaintiffs in the lower court had the right to discontinue an action and they merely exercised that right when they discontinued suit no: FCT/HC/CV/1056/2006 and filed suit No: FCT/HC/CV/1057/2006 from which this instant Appeal arose as evident from the processes in the Record of Appeal before this court. It would seem to me that the plaintiff decided to discontinue with his Suit No. FCT/HC/1056/2006 and decided to file a fresh suit which was given suit No. FCT/HC/CV/1056/2006. Although the latter suit might have the same parties and on the same subject matter the latter suit can be said to have been validly filed by the plaintiffs. I do not see anything wrong in that. It is therefore my view that the latter suit No FCT/HC/CV/1057/2006 is competent. This fourth and last issue is however resolved against the appellant. Thus I have resolved three out of the four issues raised by the appellant in his favour. Only the 4th issue has been resolved in favour of the respondent against the appellant herein.
On the whole, I hereby adjudge the appeal meritorious. It therefore succeeds and is accordingly allowed by me. The judgment of the lower court delivered on 10th of July 2007, having been predicated on an incompetent originating summons is declared null and void and is hereby set aside. Similarly, the Originating Summons, on which proceedings leading to the delivery of the said judgment is predicated upon, is hereby declared incompetent, null and void and is also accordingly struck out. N100,000.00 costs awarded in favour of the appellant against the respondents.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have had the advantage of reading in advance, the judgment of my learned brother Sanusi, JCA, just delivered. I agree with his reasoning and the conclusion reached that the Originating Summons, upon which the matter was tried and judgment delivered, is incompetent, null and void. Consequently, I also allow the appeal and strike out the said Originating Summons. I abide by all orders made in the lead judgment.
JOSEPH TINE TUR, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother, Amiru Sanusi, OFR, PJCA and I concur with the summary of the facts, the reasoning and conclusion.
Jurisdiction must be vested in a Court of law before the rights of the parties can be determined: Kalu v. Odili (1992) 6 SCNJ (Pt. 1) 76 at 90.
Where the jurisdiction of the Court is challenged by way of preliminary objection the issue must be determined before the learned trial Judge proceeds to the hearing of the case on the merit: Abdulsalam v. Salawu (2002) FWLR (Pt. 117) 1103; Onyema v. Oputa (1987) 6 SCNJ 176.
The Courts exercise jurisdiction only over persons who are within its territorial jurisdiction or who submit to her jurisdiction: Nwabueze v. Obi-Okoye (1988) 10-11 SCNJ 60 at 73; Ndaeyo v. Ogunnaya (1977) 1 SC 11.
The Courts have no judicial power to order service of processes out of its territorial jurisdiction except authorized by statute or a rule having force of law: Nwabueze v. Obi-Okoye (supra) page 73.
For a writ of process to be issued for service outside jurisdiction, leave of Court must be first sought and obtained by the Claimant. The writ must be clearly marked or endorsed as prescribed under Section 97 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation, 2004; Odua Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1 at 26; Adegoke Motors v. Adesanya (1989) 5 SCNJ 80 at 91.
Order 11 rules 13, 14, 15 and 16 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 sets out under what circumstances the Court may issue a writ to be served out of jurisdiction to wit:
“13. Service out of jurisdiction of a wit of summons or notice of a writ of summons may be allowed by the Court or a Judge in chambers whenever:-
(a) the whole subject-matter of the action is land situated within the jurisdiction (with or without rents or profits); or
(b) any Act, deed, will, contract, obligation, or liability affecting land or hereditaments situated within the jurisdiction is sought to be construed, testified, set aside or enforced in the action; or
(c) any relief is sought against any person domiciled or ordinarily resident within the jurisdiction; or
(d) the action is for the administration of the personal estate of a deceased person, who at the time of his death was domiciled within the jurisdiction, or for the execution (as to property situate within the jurisdiction) of the trusts of any written instrument, which ought to be executed according to the law in force in the Federal Capital Territory; or
(e) the action is one brought against the defendant to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or other relief for or in respect of a breach of a contact:-
(i) made within the jurisdiction;
(ii) made by or through an agent trading or residing within the jurisdiction on behalf of a principal or residing out of the jurisdiction,
(iii) by its terms or by implication to be governed by the law in force in the jurisdiction, or is brought against the defendant in respect of breach committed within the jurisdiction of a contract whenever made even though the breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction; or
(f) the action is founded on a tort or other civil wrong committed within the jurisdiction; or
(g) any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed, whether damages are or are not also sought in respect thereof; or
(h) any person out of jurisdiction is a necessary or proper party to an action properly brought against some other party within the jurisdiction; or
(i) the action is by a mortgagee or mortgagor in relation to a mortgage of property situate within the jurisdiction and seeks relief of the nature or kind of the following, that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, re-conveyance, delivery of possession by the mortgagee; but does not seek (unless and except so far as permissible under paragraph (e) of this Rule) any personal judgment or order for payment of any moneys due under the mortgage; or
(j) the action is one brought under the Civil Aviation Act any regulations made in pursuance of that Act or any law relating to carriage by air.
14. In this Order, “out of jurisdiction” means out of the Federal Capital Territory, Abuja.
15(1) An application for leave to serve a writ or notice on a defendant out of the jurisdiction shall be supported by affidavit stating:-
(a) that in the belief of the deponent, the plaintiff has a good cause of action;
(b) in what country the defendant is or probably may be found;
(c) the grounds on which the application is made.
(2) No leave shall be granted in sub rule (1) unless it appears to a Court or Judge in chambers that the case is a proper one for service out of the jurisdiction under these Rules.
16. An Order giving leave to effect service or notice shall prescribe a time after such service or notice within which the defendant is to enter an appearance, such time to depend on the place or country where the service or notice is to be given, and on whether the airmail is available to the defendant.”
The preliminary objection filed by the appellant, 3rd defendant in the lower Court, reads as follows:
“TAKE NOTICE that at the hearing of this Originating Summons and or any application, or summons issued or predicated on this suit, the 3rd defendant shall contend that the suit is incompetent and consequently, all the proceedings conducted and orders made therein are null, void and of no effect whatsoever.
FURTHER TAKE NOTICE that the grounds upon which this objection is based are that:
1. The 3rd Defendant is a limited liability company, duly registered under the Companies and Allied Matters Act, 1990.
2. By the combined effect of Order 11 rule 8 of the High Court of the Federal Capital Territory, Abuja Civil Procedure Rules, 2004, and Section 78 of the Companies and Allied Matters Act, 1990, the 3rd Defendant is to be served with the manner provided i.e. by giving the Writ of Summons to any Director, Trustee, Secretary or other principal officer or leaving it at the registered office of the 3rd defendant.
3. The Registered office of the 3rd defendant is situated at No. 2 Maigari Road, G.R.A. Kotangora, Niger State.
4. That by reason of the situation of the Registered office of the 3rd defendant, any Writ of Summons or processes which was or is to be issued by the Court for the purpose of service on the 3rd defendant, can only be issued with the leave of this Court.
5. Leave of this Court is necessary and a condition precedent for the validity of a Writ of Summons which is issued by this Court for service on the 3rd defendant in Niger State.
6. That the 3rd defendant cannot be served by substituted means either as an alternative to the procedure stipulated by law for service of processes on 3rd Defendant, or at all.
7. That the mandatory provisions of Sections 97 and 99 of the Sheriff and Civil Process Act, 1990.
8. That by reason of the manifest disputes between the parties, this suit was wrongly commenced by Originating Summons and ought to be commenced by a Writ of summons.”
The head notes in the case of Chemische Fabrik Vormals Sandoz v. Badische Anililn Und Soda Fabriks (1904-7) All E.R. Rep.234 read as follows:
“Where application is made for leave to serve a writ out of jurisdiction, the Court is not called upon to try the merits of the action, but the affidavits should show a prima facie cause of action within the jurisdiction, and disclose a substantial legal question arising out of the facts alleged which the plaintiff bona fide desires to try. Sufficient information should be given to make clear the ground on which the Court is asked to proceed.”
Once an issue of service of the processes in respect of the writ has arisen, that has to be determined else the trial Court may eventually find that it lacked the competence to adjudicate over the cause or matter in controversy. In Oloba v. Akereja (1988) 7 SCNJ (Pt. 1) 56, Obaseki, JSC held at pages 63-64 as follows:
“The issue of jurisdiction is very fundamental as it goes to the competence of the Court or tribunal. If a Court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the appeal Court. This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction in the Court it is the duty of the judge or justice to raise the issue suo motu if the parties fail to draw the Court’s attention to it. See Odiase v. Agho (supra).
There is no justice in exercising jurisdiction where there is none. It is injustice to the law, to the Court and to the parties so to do. I am therefore unable to accept appellant’s Counsel’s submission that the Court of Appeal should not have entertained ground 1(b) which raised the issue of jurisdiction simply because it was not so raised in the High Court. Once an issue of jurisdiction is raised, it should be examined in all its ramifications. It should not be compartmentalized and subjected to piecemeal examination and treatment. The very many faces of jurisdiction should come under the searchlight and pronounced upon.
I agree with the learned Counsel for the respondent that it is only the issue of jurisdiction that has dominated proceedings in this matter in all the three Courts below. The jurisdiction of a Customary Court is not one that should have posed such a complex problem as the Courts below have made it appear.”
Moreover, in Mohammed Mari Kida v. A. D. Ogunmola (2006) All FWLR (Pt. 327) 402 at 411-414, Musdapher, JSC (as he then was) held that:
“Now, the appellant applied to issue and serve the writ on the respondent outside the jurisdiction of the Court and yet the appellant was served by substituted means, by pasting the originating processes on the last known abode of the appellant within jurisdiction, when it was manifestly clear that the respondent was no longer resident there or within the jurisdiction of the Court. For a defendant to be legally bound to respond to the order for him to appear in Court to answer a claim of the plaintiff, he must be resident within jurisdiction. see National Bank (Nig) Ltd. v. John Akinkunmi Shoyoye and Anor. (1977) 5 SC 181.
Substituted service can only be employed when for any reason, a defendant cannot be served personally with the processes within the jurisdiction of the Court for example when the defendant cannot be traced or when it is known that the defendant is evading service. Also, where at the time of the issuance of the writ, personal service could not in law be effected on a defendant who is outside the jurisdiction of the Court, substituted service should not be ordered, see Fry v. Moore (1889) 23 QBD 395. If the defendant is outside the jurisdiction of the Court at the time of the issue of the writ and consequently could not have been personally served in law, not being amenable to that writ, an order for substituted service cannot be made. See Wilding v. Bean (1981) 2 QB 100.
In the instant case, the respondent was known to be out of jurisdiction, and it is not in dispute that the respondent had moved out of Maiduguri to Ibadan, where he had relocated with his family long before the issue of the writ of summons. It is trite law, that after its issue, a writ of summons or any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires to, that which is claimed against him. Where service of a process is legally required, the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitae to have the order set aside as a nullity. See Obimonure v. Erinosho (1966) 1 All NLR 250; Mbadinuju v. Ezuka (1994) 10 SCNJ 109; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6; Adeigbe v. Kusimo (1965) NMLR 284. Service of the originating process has been held to be a condition precedent to the exercise of jurisdiction by the Court out of whose registry the originating process was issued. See N.B.N. Ltd. v. Guthrie (Nig.) Ltd. (1993) 4 SCNJ 1 at 17. The validity of the issue of the writ and the service of the Court on the respondent was raised before the trial Judge and the learned trial Judge in his ruling on this issue…
Thus, the trial Court disregarded the complaint of the respondent on the validity of the issue and service on him of the processes. The Court of Appeal rightly in my view held that the trial Judge acted erroneously to have discountenanced the argument of the Counsel for the respondent on this issue. In my view, the validity of the originating processes in a proceeding before a Court is fundamental, as the competence of the proceeding is a condition sine quo non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.
However, of more fundamental nature, the respondent who was outside jurisdiction, claimed to be unaware of the suit as he was not served with the originating process outside the jurisdiction of the Borno State High Court as properly ordered by the Court. He was allegedly served by substituted means. As shown above, that was no service.
As mentioned before in this judgment, service of process on a party to a proceeding is crucial and fundamental. See Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554, (2003) FWLR (Pt. 140) 1686; S.G.B. Ltd. v. Adewunmi (2003) FWLR (Pt. 158) 1181, (2003) 10 NWLR (Pt. 829) 526; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of jurisdiction was not fulfilled. That being so, the trial Court in the instant case has no jurisdiction to hear the appellant’s application and enter judgment against the respondent in default of filing statement of defence. The proceedings as far as it affected the respondent on the 24/12/1996 was a nullity. See also Scott-Emuakpor v. Ukavbe (1975) 12 SC 41. See UBN Plc v. Okonkwo (2004) 5 NWLR (Pt. 867) 445.
Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of Counsel since where there is no service, there is no valid trial. It was manifest and common ground that the respondent was known to be out of jurisdiction…”
See also Alhaji Abdulkardir Abacha v. Kurastic Nigeria Ltd. (unreported Appeal No. CA/A/406/2010). I delivered on 27th day of March, 2014 in the Abuja Division of the Court of Appeal.
This appeal is allowed. I abide by the orders in the lead judgment.
Appearances
Y. C. Maikyau SAN with A. D. Zubairu, T. R. Agbanyi and Iyobosa IzeubigeFor Appellant
AND
A. B. Anachebe SAN with F. C. Anachebe (Mrs.), Charles Jibuaku, Shareef, Mohammed and Uchenna Uche – 1st, 2nd and 3rd respondentsFor Respondent
