JOE-DEB VENTURES LIMITED & ANOR v. NIGERIAN DEPOSIT INSURANCE CORP. & ANOR
(2014)LCN/7210(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of May, 2014
CA/B/136/2005
RATIO
WHETHER THE SERVICE OF AN INITIATING PROCESS CAN VITIATE A JUDGMENT
There is no doubt the proper service of the writ or other initiating process is one major factor that may vitiate a judgment. See Madukoku vs. Nkemdilim (1962) 1 ALL NLR 587, 595; Skenconsults Nig. Ltd. & Anor vs. Ukey (1981) 1 S.C. 6; Okoye vs. Central Point Merchant Bank (supra) @ 268. per SOTONYE DENTON WEST, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. JOE-DEB VENTURES LIMITED
2. JOSEPH KAYODE TINUOYE Appellant(s)
AND
1. NIGERIAN DEPOSIT INSURANCE CORP.
2. LIQUIDATOR OF TRADE BANK PLC. Respondent(s)
SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This appeal stems from the decision of Hon. Justice Oluwole Fagbe of the Ondo State High Court sitting at Akure in a Ruling delivered on the 17th day of November, 2004 in favour of the plaintiffs (herein the respondents)
The appellants who were the defendants at the High Court brought a motion on notice praying that the trial court:
(a) Set aside its own judgment given in the Suit on 17th June, 2004 on the ground that it was obtained by fraud.
(b) The appellants also sought that the court set aside the Writ of Summons marked “undefended” on the ground that it was irregular and was not properly served on the appellants and thereby ousting the jurisdiction of the court on the matter.
(c) And such further or other orders as this Honourable Court may deem fit to make in the circumstances.
BACKGROUND FACTS OF THE CASE
The respondent took out a Writ of Summons under the undefended list on 2nd day of April, 2004 (page 21 of record). The respondents’ claims against the appellants as defendants jointly and severally are:
(i) A sum of Forty-Six Million, Four Hundred and Twenty-Nine Thousand, Seven Hundred and Seventy-Four Naira and Eighty Kobo only (N46, 429,774.08) being debt owed to the plaintiffs by the defendants which the defendants have failed, refused or neglected to pay despite repeated demand.
(ii) An interest of 20.5% per annum from 1/4/2004 up to the date of judgment i.e. 17/06/2004.
(iii) An interest of 5% per annum on the total debt from the date of judgment until the total debt is finally liquidated.
By the order of the honourable trial Judge dated 1st day of June, 2004 (contained on page 1 of the record), the leave of the lower court was obtained by the respondent to enter the suit for leaving (return date) on 17th day of June, 2004 under the undefended list and the case was then adjourned to 17th day of June, 2004 for hearing.
In its judgment on the 17th day of June, 2004, the trial court granted all the claims of the respondents, jointly and severally against the appellants to the tune of N46,429,774.08 (Forty-Six Million, Four Hundred and Twenty-Nine Thousand, Seven Hundred and Seventy-Four Naira, Eighty Kobo only). There was no defence from the appellant.
The appellants’ counsel filed a motion dated 22nd day of June, 2004 praying the court for the following reliefs:
(a) an order setting aside the judgment of this honourable court delivered in this case on the 17th day of June, 2004 on the ground that it was obtained by fraud which renders it a nullity ab initio in that the plaintiffs/respondents misled and misrepresented same facts before the court before the said judgment was obtained;
(b) An order setting aside the Writ of Summons marked undefended which was issued by the plaintiffs/respondents in this case on the ground that the said writ was irregular and that it was not properly served on the defendants/applicants in this case thereby ousting the jurisdiction of this honourable court to entertain this suit and;
(c) For such further or other orders as this honourable court may deem fit to make in the circumstances.
This application was backed by an affidavit in support of motion by one Oriloye Suleiman (see page 11 of the records) who stated to be a mere (sic) store keeper in the employment of the appellants/applicants. He also stated to have been served the Writ of Summons and other court processes that ought to be served on the 1st and 2nd appellants on the 14th day of June, 2004, the 2nd appellant being on a business trip to Ikom, Cross-Rivers State, he resorted to taking the writ and other processes to the appellants/applicants’ counsel oblivious of the content.
He stated in his affidavit that he was served on 16/4/2004 and whereas the writ commanded the defendants/applicants to enter appearance within 8 days of service, the judgment of this trial court was delivered on 17th day of June, 2004, which is four (4) days short of the limit to which appearance of 1st and 2nd appellants is to be entered.
He deposed further that the appellants had a reasonable defence to all the claims of the respondents in the case and would make all known after the filing of the notice of intention to defend and further reiterated that the court had the inherent power to set aside its own judgment and should do so under the given circumstance, in the interest of justice by granting the application.
A further affidavit was deposed to by the 2nd appellant in person of one Joseph Kayode Tinuoye. He stated he is the Chairman/Managing Director of the 1st appellant in the suit. He swore to the further affidavit in addition to the affidavit in support of the motion which had earlier been filed and sworn to by Mr. Oriloye Suleiman and further stated that he had been away to Ikom in Cross Rivers State prior to his return on 24th day of June, 2004. He also emphasized that none of the court processes filed in respect of the case was personally served on him prior to the delivery of the judgment.
On 18/10/2004, the learned counsel for the appellant, at the lower court moved his motion, he submitted that the respondents misled and misrepresented some facts before the court before judgment sought to be set aside was obtained.
He referred to paragraphs 1, 5, 6, 8, 10, 11, 12, 13 and 18 (II) (IV) of the affidavit in support and paragraphs 8, 9 and 10 of the further affidavit. The averments in these paragraphs is to the effect that court processes in this case were served on one Oriloye Suleiman after misinforming him of the nature of the document.
Oriloye being a mere storekeeper of the 1st appellant. References were made to Exhibit KK2 and KK3 attached to the further affidavit. He referred to Order 12 Rules 2 and 8 of the High Court Rules. Also Sec. 78 of C.A.M.A; Kalu Mark vs. Gabriel Eke (2004) Vol. 117 LR SM page 3861 @ 3865. Also that the court processes were not served on the applicants in their head office; likewise the 2nd applicant who was not also personally served with the court process.
He submitted that where there is a dispute on the service of writ, the court ought to resolve the dispute first before proceeding to try the case on merit. He referred to Bendel Construction Co. Ltd. V. Anglican Construction Co. Ltd. (1972) ALL N.L.R. 162. He further stated that as at 17/6/2004 the 2nd appellant had not been served with any court process. He referred to Exhibits KK2 and KK3.
Appellants’ counsel at the lower court further submitted that under Order 23 (4) of the Rules, it is not stated the time within which a party served should respond and that the period of 4 days in the suit was not a reasonable time.
Furthermore, he submitted that if there ever was any proof of service on the appellants/applicants, the service must have been carried out by fraud. He referred to FBN vs. Obande (1998) 2 NWLR part 538 page 410 @ 413; SGB v. John Adebayo (2003) 14 NSCQR Vol. 14 part 1, page 119.
Counsel also submitted that the writ of the respondents as plaintiffs was defective and yet the court acted on it. He cited the example in conflict of dates on page 1 which was dated 14/6/2004 while page two contains a different date 31/3/2004. He submitted that the two conflicting dates ought to render the entire writ null and void since it renders void the jurisdiction of the court. He relied on Madukolu vs. Nkemdilim (1962) Vol. 2 NSCC page 374 @ 375.
He submitted further that the processes were served on Oriloye at No 47, Idanre Road, Akure, an address which is different from the registered address of the 1st appellant. He referred to Order 12(2) (8) of the Ondo State Rules of the High Court at paragraph 12 of supporting affidavit. Odutola vs. Kayode (1994) 2 NWLR, part 234 page 1 @ 5. And concluded that the service of writ on 2nd defendant through Oriloye is not a good service under the law. He also referred to Union Beverages Ltd. Vs. Adante (1990) NWLR, part 162 page 348 @ 350; Senate President vs. Nzeribe (2004) AFWLR, part 215 page 359 @ 361.
The respondents’ counsel submitted that the applicants’ application is based on the judgment given on 17/6/2004 pursuant to Order 23(4) and that it being a judgment on the merit, the grounds upon which application are based is not applicable. He therefore submitted that the court lacks the power to set aside the judgment delivered pursuant to Order 23. He referred to Owena Bank vs. Akintuyi (1997) 8 NWLR (Pt. 259) page 347 @ 355.
Counsel submitted further that no fraud had been established and that the appellants have not shown to court the purported facts which misled the court. Also that on the issue of service or non service, that the court had already made a ruling on it and therefore the only option left for the applicant was to go on appeal.
Counsel further submitted that on the issue of giving judgment as a date less than eight (8) days commanded by the writ, that it was the return date that matters. He referred to Order 23(4) of the High Court Rules. Landgroup Ltd. v. L. O. Ajewole unreported in Suit. AK/179/99 delivered on 24/9/99 by A. O. Ogunleye C.J; Agueobe vs. P.A.B. Ltd. (1992) 4 NWLR (part 233) @ page 76 @ 87.
He urged the court to dismiss the application with cost. Chief Jejelola, the counsel for the appellants, on point of law said the authority of Owena Bank vs. Akintuyi has been overruled by the FBN Plc. V. Obande (supra). And more so, that Order 23 (4) does not state the time within which a party should make his reply.
In the Ruling which was adjourned to 17/06/2004, that eventually led to this instant appeal, the applicants’ counsel’s attempt to raise some issues relating to the issuance of the writ especially in respect of the endorsement on it and the service at an address different from the registered address of the appellant was dismissed as flippant and not worthy of consideration.
The trial Judge declared the judgment of the court delivered on 24/3/2004 as a judgment on merit unlike a default judgment; hence he had not the power to revisit, having become functus officio. And reasoned that the only remedy available to the appellant lay with the Court of Appeal. The trial judge concluded that the application lacks merit and therefore dismissed it.
The appellants being dissatisfied with the Ruling of the High Court dated 17th November, 2004 appealed to this Honourable Court vide a Notice of Appeal dated 22nd November, 2004 containing four grounds of appeal. The grounds of appeal in the said notice of appeal devoid of their particulars are as follows:
(i) The learned trial Judge erred in law when he held that he had jurisdiction to try the matter.
(ii) The learned trial Judge erred in law by not setting aside, the judgment that was given under the undefended list or writ in this suit pursuant to Order 23 Rule 4 of the Ondo State Rules of the High Court 1987. Since the 8 (eight) days period stated on the said writ within which the applicants/appellants should enter their appearance had not expired before the said judgment was delivered.
(iii) The trial judge erred in law by not setting aside its judgment in this case which was obtained by fraud and misrepresentation which renders the said judgment a nullity and void.
(iv) The learned trial Judge erred in law by not setting aside the said judgment which violated the defendants/appellants fundamental Human Right as contained in the 1999 Constitution of the Federal Republic of Nigeria.
In the appellants’ counsel’s (G. O. OMOETU) Amended Appellants’ Brief dated 23rd November, 2012 and filed on 3rd December, 2012 which he adopted, reliance was placed on all the arguments canvassed in the brief. They urged this court to allow the appeal and set aside the Ruling of the lower court
The respondents’ counsel, O. Agbonika, adopted the facts and arguments stated in the Respondents’ Brief of Argument dated 4th day of December, 2012 and filed 5th day of December, 2012. The counsel for the respondents had earlier filed the Respondents’ Brief of Argument dated 31st October, 2005 and filed on 4th November, 2005. He sought to withdraw that respondents’ brief and urged this Honourable Court to dismiss this appeal and affirm the Ruling of the High Court.
G. O. OMOEDU, the appellants’ counsel did not oppose the application for withdrawal of the respondents’ brief of argument dated 31st October, 2005 and filed on 4th November, 2005.
This court therefore struck out the respondents’ brief of argument dated 31st October, 2005 and filed on 4th November, 2005, having been withdrawn without objection. Judgment was accordingly reserved.
Learned counsel for the appellants nominated 4 (four) issues for determination. They are:
(i) Whether the learned trial Judge was right to hold that he had jurisdiction.
(ii) Whether the order of the lower court dated 1/6/04 which is Exhibit ‘D’ slating this case for hearing on 17th day of June, 2004, supersedes the 8 (eight) days period within which the appellants should enter their Memorandum of Appearance and file their notice of intention to defend to the undefended writ in this suit.
(iii) Whether the learned trial Judge was right by not setting aside its own judgment of 17th June, 2004 which was obtained by fraud and misrepresentation in this suit.
(iv) Whether the learned trial Judge had afforded the appellants their fundamental Human Right to natural justice and also to be heard in this case before giving interest against them on the 17th day of June, 2004.
Learned counsel for the respondent on the other hand submitted that the issues submitted for determination by the appellants bear no relevance to the Ruling of the High Court dated 17th November, 2004. He stated further that the issues raised by the appellants in his brief were issues canvassed by him before the court delivered its judgment dated 17th June, 2004, which according to him, the appellant has not appealed against in this court.
Learned counsel submitted that in his view the only issue that should rise up for determination in this appeal is:
1. “Whether or not the High Court was right in refusing to set aside its own judgment dated 17th June, 2004 given as the merits.”
I have carefully gone through the briefs of argument and the record of proceedings in this case including the rather unwieldy and unduly repetitive grounds of appeal and issues for determination nominated by the learned counsel for the appellant. I am convinced that the following issues would meet the justice of this case.
1. Whether or not the High Court was right in refusing to set aside its own judgment dated 17th June, 2004 which was obtained by fraud and misrepresentation.
2. Whether the order of the lower court dated 1/6/04 which is Exhibit ‘D’ slating this case for hearing on 17th day of June, 2004 supersedes the 8 (eight) days period (as commanded by the Writ) within which the appellants should enter their Memorandum of Appearance and file their notice of intention to defend to the undefended writ in this suit.
Learned counsel for the appellants submitted that there was nothing to show in the Ruling of the lower court of 17th day of June, 2004 in this case that the 2nd appellant was duly served with the Writ of Summons in this instant case before he went to trial. He submitted that the fact that the 2nd appellant was at Ikom in Cross-Rivers State of Nigeria on the 17th June, 2004, the day the case was conducted and judgment was delivered was never disputed by the respondent and the Ruling of 17th day of November, 2004 did not contradict and therefore he posited that since there was improper and non-service of the Writ of Summons on the appellants, the judgment could only be said to have been obtained by fraud and misrepresentation. Relying on the authority of Chief Joseph Okon Edem vs. Akamkpa Local Government (2004) 4 NWLR (pt. 651) p. 70 @ 72 ratio 1, he said the law is that a court will set aside its judgment in any particular suits as it is in the instant case where there is revelation that any of the defendant to the case is or was not served with the court process i.e. the writ of summons.
The appellants’ counsel further submitted that the respondent in this case failed to exhibit the proof of service of the Writ of Summons in the case on the appellants before the trial court. Referring to the record of appeal on pages 20 – 21 and 29 of the Ruling which is being appealed against in this suit; also confirms that the Writ of Summons that was served on the said Mr. Oriloye Suleiman, the storekeeper of the 1st appellant was served on him at No. 49 Idanre Road, Akure as against No. 29, Igbalaye Street, Oke-Aro, Akure which is the registered office address of the 1st appellant and it is this address of No. 29, Igbalaye Street, Oke-Aro that was contained in the said writ.
He submitted further that the position of the law on how to serve court processes on a limited liability company as it is the case of the 1st appellant.
Relying on Section 78 of the Companies and Allied Matters Act (CAMA) provides for how to serve documents generally on any company registered under it. By this provision, a court process is served on a company in the manner provided by the Rules of Court (supra). Also, a service on such a company must be at the registered office of the company. Relying on Kalu Mark & 1 Or. Vs. Gabriel Eke (supra); Bello vs. N.B.N. Ltd. (1992) 6 NWLR (246) p. 206. He remarked that it was bad and ineffective if it is done at a branch office of the company.
Based on the following submissions, counsel for the appellants submitted that the judgment of 17th day of June, 2004 was obtained by fraud and misrepresentation of facts before the trial Judge and that the learned trial Judge ought to have set aside the judgment in his ruling of 17th day of November, 2004.
He referred to the cases of First Bank of Nigeria Plc. V. Obande & Sons Enterprises Ltd. (1998) 2 NWLR (pt. 538) p. 413 ratio 6; U.B.A. Ltd. vs. Taan (1993) 4 NWLR (pt. 287) p. 370 @ 370, ratio 2 (b); Odofin vs. Olabanji (1996) 3 NWLR (pt. 435) p.126 @ p. 128 ratio 2 and Alao vs. ACB Ltd. (2000) 6 SCNJ p. 63.
On the second issue: Whether the order of the lower court dated 1/6/04 which is Exhibit ‘D’ slating this case for hearing on the 17th day of June, 2004 superseded the 8 (eight) days period (as commanded by the writ) within which the appellant should enter their Memorandum of Appearance and file their notice of intention to defend to the undefended writ in this suit.
The appellants’ counsel submitted that the Writ of Summons in the instant case as contained on page 2 and 5 of the record clearly stated that the appellants were to enter appearance within eight (8) days after the service of the said writ in this case and there was nothing on the face of the Exhibit ‘D’ that the return date of 17th day of June, 2004 as contained (written) on the said Exhibit supersedes the 8 (eight) days period within which the appellants was expected to enter appearance in the suit.
While still maintaining that at best the service of the Writ of Summons on the storekeeper as against the 1st appellant was illegal, the 2nd appellant was never served at all, before the delivery of judgment. He submitted that the learned trial court’s view on page 2 lines 6 – 8 of the supplementary record that it was the return date on the order of court that matters in relation to the steps a party needs to take in the suit and that the order had thereby superseded the writ, was a view not contemplated in the eyes of the law. The learned counsel for the appellants submitted that in the case of Akpabuyo Local Government vs. G. O. Duke (2001) FWLR (Pt. 53) p.118 @ Pp. 131 paras G-D, per Edozie, JCA held:
“It is concluded that the High Court Rules do not stipulate (sic) any period within which a defendant may enter appearance after service of the Writ of Summons.”
Counsel for the appellant however submitted that as in the instant case where the writ served on the appellants directed it to enter appearance within eight days of service, that it represented that judgment would not be entered against it before the elapse of time and it had within that period to enter appearance and file its notice of intention to defend pursuant to Order 23 Rule 3(i) of the High Court Rules and opined that until the expiration of the eight (8) days from the date of service had expired, the court was ceased of jurisdiction to enter judgment on the matter. Citing the case of Aderonke Bakery Ltd. Vs. M/SD. Onyejekwe Ltd. (1992) 2 NWLR (pt. 590) p. 288 @ 233 per Oguntade, JSC, who held:
This appeal can be disposed of a narrow issue of law covered by the appellant’s 4th issues for determination. The undisputed evidence is that the Writ of Summons was served on the appellant on 7/2/1994. On 14/2/94, the lower court gave judgment against the appellant. This was only a period of 7 days after the appellant was served Writ of Summons. They directed him to enter appearance to the suit. “Within 8 days after service…. Inclusive of the date by of… service.” The earliest date by which the suit would have been validly heard was 15/2/94. On this score alone, the judgment of the lower court is invalid and ought to be set aside.”
The appellants’ counsel submitted that the above was the exact situation of the procedure of the trial court in the instant case and therefore ought to receive same treatment.
He submitted further that the provision of Order 23 Rule 4 of the Ondo State Rules of the High Court 1987 did not state or mention the period within which to file a notice of intention to defend under an undefended writ as in the instant case and therefore it is submitted that the date stated on the said writ would apply and/or in the alternative the provision of Section 2 of page A87 of the Ondo State Rules of the High Court 1987 would apply and not the returned date mentioned in the said Exhibit ‘D’. The provision of Order 23 Rule 4 of the said rule provides:
“Where my defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3 (i) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”
While Section 2 of page A87 of the same Rules provides:
“Where a matter arises in respect of which no provision or no adequate provisions are made in the Rules, the court shall adopt such procedure as will, in its view do substantial justice between the parties concerned.
Submitting that the trial Judge did not adopt the procedures as will do substantial justice between the parties, having been unaware of the existence of the suit due to non/improper service of the Writ of Summons, he urged the court to allow this appeal and set aside the Ruling of the lower court in this case likewise the judgment delivered by the lower court on the 17th day of June, 2004 in this suit.
Learned counsel for the respondents submitted that the main issue is:-
(1) “Whether or not the High Court was right in refusing to set aside its own judgment dated 17th June, 2004 given on the merits.”
He submitted that the sundry issues raised by the appellant in his brief were issues canvassed by him before the court delivered its judgment dated 17th June, 2004 which appellants has not appealed in this court.
In his argument, he referred to the application of appellants as applicants at the High Court and referred to page 17 – 18 of the record. Citing that appellants on the application sought an order of the High Court to set aside the judgment of the court on some grounds, to which he further quoted the trial court’s response on page 31 of record thus:
“….The judgment of this court delivered on 17th June, 2004 was a judgment on merit. The question now arises, do I have the power to revisit the judgment once more? I am afraid I do not have such power.
I have become functus officio. If there is any remedy at all, it is only the Court of Appeal that has that power. A judgment entered in a suit on the undefended list is a judgment on the merits which unlike and default judgment cannot be set aside by the trial court on a motion by a party dissatisfied with the judgment. It is not competent for the judgment of the court given on the undefended list to be challenged by motion inviting the court to set aside the judgment.”
The learned counsel went further to list seriatim how the court arrived at the decision which are all contained in page 31 of the record and submitted that the learned Judge of the High Court was right in refusing to set aside its own judgment dated 17th June, 2004, which he said was a judgment under the undefended list and therefore a judgment on the merits.
He finally urged this court to resolve the issue above in the respondents’ favour by dismissing the appeal.
RESOLUTION OF ISSUE ONE (1)
Whether or not the High Court was right in refusing to set aside its own judgment dated 17th June, 2004.
Now, in dealing with this issue, the trial court and the respondents are both of the opinion that he had no power to set aside his judgment nor revisit it having became functus officio.
To this assertion, I am in complete disagreement, in as much as I agree that a judgment obtained under the undefended list is a judgment on the merits or final judgment and once the judgment has been entered in favour of the plaintiffs, it means that the case has come to an end, the court becomes functus officio, this is only to the extent that such judgment is not irregularly obtained, if it is, that court that gave the judgment may set it aside. Also, the defendants seeking to set aside the judgment must come by way of motion on notice specifying in the affidavit attached, the nature of the irregularity, how it arose and disclosing a defence on the merits. See: Bendel Construction Co. Ltd. Vs. Anglo Development Co. (Nig.) Ltd. (1992) ALL NLR (pt. 1) p.25.
Though, the Supreme Court held a similar view in Ben Thomas Hotel Ltd. Vs. Sebi Furniture Ltd. (1989) 5 N.W.L.R. (pt. 123) 523. In that instant case, the trial Judge while dismissing the application to set aside judgment entered under the undefended list held that once judgment had been given in an action under the undefended list, the court had become functus officio and therefore could not set aside the judgment. However, Agbaje, JSC at page 537 paragraph C held the view that the learned trial Judge was in error in holding that once he had given a judgment in an action on the undefended list, he was functus officio and would not set the same aside.
He explained that in an action brought under the undefended list, pleadings are not required to be filed and as such a case is coming for the first time on the list and it is not coming to the court for the first time for mention but hearing.
In any case, the courts have held severally that a court has inherent jurisdiction to vary its order so as to carry its own meaning or in cases where the language used is doubtful, in order to clarify the position or correct a clerical error. See: Orukumkpor v. Itebu & Ors. 15 W.A.C.A. 39. Also, as in this instant case, that a court has also inherent power to set aside its own judgment which is a nullity such as where it acted without jurisdiction. In the case of Rossek vs. A.C.B. Ltd. (1993) 8 NWLR (pt. 312) @ p. 471, Bello, (as he then was) observed thus:
“…A judgment of a court of law remains valid and effective unless it is set aside by an appeal court or by the lower court itself if it acted without jurisdiction or in the absence of an aggrieved party.”
Having shown by the foregoing that a trial court can set aside its own judgment based on certain conditions, I would go on to look at the instant case, if it fulfills the condition that lead to a judgment being set aside, this may eventually lead to the second issue, but first the issue of improper service/non-service of the court process on the appellants.
There is no doubt the proper service of the writ or other initiating process is one major factor that may vitiate a judgment. See Madukoku vs. Nkemdilim (1962) 1 ALL NLR 587, 595; Skenconsults Nig. Ltd. & Anor vs. Ukey (1981) 1 S.C. 6; Okoye vs. Central Point Merchant Bank (supra) @ 268.
A judgment obtained against a party who was never served with initiating process is void. Also, non-service is a product of jurisdiction and the issue of jurisdiction being the life blood of adjudication can be raised at any time in the proceedings ever on appeal at the Supreme Court and even suo motu.
In the Ruling by the trial court on 17th November, 2004, the trial Judge was of the view that the points raised by the appellants’ counsel on the issue of service were not worthy of consideration. In my honest opinion, the issues are the very fulcrum on which the case lay, having explained earlier as the life blood of any adjudication.
The respondents never disputed the fact that service was effected on one Oriloye Suleiman, a storekeeper for the 1st appellant (a company) at an address different from the registered address contrary to Section 78 Companies and Allied Matters Act (CAMA). And also that whereas the service on the said Oriloye Suleiman could at best be labeled as an improper service, the second appellant could not be said to have been served at all as envisaged by the following provisions of Ondo State rules of High Court, 1987, thus:
Order 12 Rules 2 “Save as otherwise prescribed by any of these rules, an originating process shall be served permanently by delivery to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original process filed, without exhibiting the original thereof.”
Order 12 Rule 8 “When the suit is against a corporation authorized to sue and be sued in its name or in the name of an officer or trustee, the writ or other document may be served, subject to the enactment establishing such corporation or company or under which it is regulated, as that case may be by giving the same to any director, secretary, or other principal officer, or by leaving it at the office of the corporation or company.”
Undoubtedly, it cannot be said for the respondents that these provisions were adhered by strictu-sensu even assuming that they were unable to effect personal service, Order 12 Rule 8 of the Ondo State Rules of the High Court 1987 offers a way out by way of substituted service. In effect, it cannot be said that the respondents had fully satisfied this all important condition precedent before the commencement of action, answer to my mind is in the negative. Accordingly, Issue 1 is resolved in favour of the appellants and against the respondents.
This takes me to issue Two (2) which is whether the order of the lower court dated 1/6/2004 which is Exhibit ‘D’ slating this case for hearing on 17th day of June, 2004 supersedes the 8 (eight) days period within which the appellants should enter their Memorandum of Appearance and file their notice of intention to defend to the undefended writ in this suit.
The learned counsel for the appellants submitted that the trial Judge did not allow the 8 days period within which the appellants should enter their appearance to expire before proceeding on the trial of this case and delivery of the judgment and therefore concluded that the court was seized of jurisdiction.
The learned counsel for the respondents on the other hand reacted that it was the return date that was paramount and placed reliance on Order 23 Rule 4.
A careful perusal of the Ondo State Rules of the High Court 1987 does not categorically spell out a limitation period. However, Section 13.1 states that a defendant shall within the time limited in the writ or other originating process enter an appearance in the manner hereafter prescribed.
Though, in truth, after a defendant has been served with a Writ of Summons marked “undefended list”, if he intends to challenge such a defence should be filed before the return date i.e. hearing date specified on the writ.
In the instant case, the writ was supposedly served on the 14th June, 2004, and a return date of 17th June, 2004 was penned down on it but the writ commanded that a Memorandum of Appearance be made eight days from service of the writ, in such a scenario, there could be conflict as it is.
In Aderonke Bakery Ltd. v. M/S D. Onyejekwe Ltd. (1999) 2 NWLR (pt. 590) p.228 and Akpabuyo vs. Duke (2001) 7 NWLR (pt. 713) p. 557, the courts have held that where the writ commands the defendant to enter an appearance within a limited time, though the writ is marked undefended list, judgment cannot be entered in the suit or arguments considered before the expiration of the period stipulated on the writ.
From my own understanding therefore, the return date is not meant to rob a party of the legal right of time as given by the command of eight days of the writ, rather it is supposed to act as an ancillary, assisting the courts and all the parties involved in a suit in achieving substantial justice in the case.
In the case of Crown Merchant Bank Ltd. Vs. Leadway Assurance Co. Ltd. (1997) 11 NWLR (pt. 529) 405; Bullet Int. (Nig.) vs. Adama (1997) 3 NWLR (pt. 493) 348 the courts held that the defendant must be prepared to file his defence at least five days before the day fixed for hearing. By the defendant’s entry of appearance, he indicates his willingness to contest the action and that he also submits to the jurisdiction of the court. This also serves as a proof that the writ has been served.
When a case entered on the undefended list comes to the court on the return date, the court has the duty to ensure that the defendant has filed a notice of intention to defend and an affidavit of defence. It is when the court has exhausted itself of this duty of proper service and ample opportunity of response in accordance with the principle of fair hearing, in line with the latin maxim of ‘Audi Alterem patem’ that the court in the absence of a defence may proceed to judgment.
It is my considered opinion that though the respondents may have good grounds for instituting the cause of action at the trial court, ample time could not be said to have been availed to the appellants to respond adequately to the suit, thereby denying them the opportunity of exercising their right of fair hearing. In any case, I accordingly resolve this issue in favour of the appellants and against the respondents.
Now having found merit in this appeal, I hereby allow the appeal and set aside the Ruling of the lower court in this case. I also set aside the judgment delivered by the lower court on the 17th day of June, 2004. In the interest of substantial justice of this case, I also order that a retrial to try the main issue with proper service duly effected. I also order that the appellants be paid the cost of this appeal which I have fixed at N50,000.00. I also direct that the costs in the court below should abide the event.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother Sotonye Denton-West JCA.
I agree with the conclusion and I also abide with the consequential order(s).
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in advance the draft copy of the lead judgment of my learned brother DENTON WEST and I do agree with his reasoning and conclusion reached therein. The appeal indeed has merit in it. I too allow it and set aside the Ruling of the lower court in this case. Also set aside is the lower court’s judgment delivered 17th day of June, 2004.
Appearances
G. O. OmoetuFor Appellant
AND
O. Agbonika, O. O. Olabinwonu Esq., N. A. Banigo Esq., O. D. Max HarryFor Respondent
