KADUNA SOUTH LOCAL GOVERNMENT v. NORTH LINKS CONSTRUCTION LIMITED
(2014)LCN/7403(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of July, 2014
CA/K/12/2009
RATIO
APPEAL: PRELIMINARY OBJECTION; THE EFFECT OF RAISING A PRELIMINARY OBJECTION IN A BRIEF OF ARGUMENT WITHOUT FILING A SEPARATE NOTICE OF PRELIMINARY OBJECT
The position of the Law is clear on this. Although through the cases of this Court including AROYINKEYA VS. AWOYINKA (2005) ALL FWLR (Pt.24) 1 at 18 and now having been settled by the Supreme Court in several cases including AGBAKA VS AMADI (1998) 7 SC (pt.11) 18 at 20 a Respondent who raises a preliminary objection in his brief of argument without filing a separate Notice of Preliminary objection would be allowed to move same provided that the brief of argument was served on the Appellant at least 3 clear days before the hearing of the appeal, the said notice of preliminary objection incorporated in the brief can only be argued when moved by the Respondent before the Appellant argues his appeal. See Mkpen Tiza & 1 Anor. vs. Iorakpen Begha (2005) 33 WRN 158 at 171. per. AMINA AUDI WAMBAI, J.C.A.
PRACTICE AND PROCEDURE: SERVICE OF AN ORIGINATING SUMMON; WHETHER THE ISSUE OF PERSONAL SERVICE OF AN ORIGINATING PROCESS IS FUNDAMENTAL AND GOES TO THE ROOT OF THE COMPETENCE OF THE COURT TO EXERCISE ANY JURISDICTION OVER THE SUIT
In determining this issue, it is imperative to state that the issue of personal service of an originating process is very fundamental and goes to the root of the competence of the court to exercise any jurisdiction over the suit as the court has no jurisdiction over a person who has not been served. See Ogbunyiya vs. Okudo (1990) NWLR (Pt.146) 551. See also Abe vs. UBN Plc (supra). per. AMINA AUDI WAMBAI, J.C.A.
PRACTICE AND PROCEDURE: SUMMARY JUDGMENT; THE PROCEDURE FOR SUMMARY JUDGMENT UNDER ORDER 11 OF THE KADUNA STATE HIGH COURT (CIVIL) PROCEDURE RULES
Now, the procedure for summary judgment is set out in Order 11 of the Kaduna State High Court (Civil) Procedure Rules.
By Order 11 Rule 1, a plaintiff who believes that a defendant has no defence to his claim shall take out an originating process together with a statement of claim and depositions of witnesses with other exhibits and an application for summary judgment as well as a written addresses to be supported with an affidavit stating the grounds for his belief.
By Order 11 Rule 4 where the defendant intends to defend the suit, he shall not later than the time prescribed by the Rules for the filing of a defence, file;
1. the statement of defence
2. the depositions of witnesses
3. the exhibits to be used and
4. written address in reply to the application for summary judgment.
By Order 11 Rule 5(2): where any defendant fails or neglect to comply with the provisions of Rule 4, or it appears to the Judge that the defendant has no good defence to the claim, the Judge may enter judgment for the plaintiff. per. AMINA AUDI WAMBAI, J.C.A.
PRACTICE AND PROCEDURE: THE SUMMARY JUDGMENT AND THE UNDEFENDED LIST PROCEDURE; WHETHER SUMMARY JUDGMENT PROCEDURE IS AKIN TO THE UNDEFENDED LIST AND THE DUTY OF A DEFENDANT WHO HAS BEEN SERVED WITH THE PLAINTIFF’S TO WITHIN THE PRESCRIBED TIME FILE AMONG OTHERS A STATEMENT OF DEFENCE AND A WRITTEN REPLY
I quite agree that in purport, the summary judgment procedure is akin to the undefended list procedure in that both of them are aimed at disposing with dispatch cases, which are virtually uncontested or where there can be no doubt that the plaintiff is entitled to judgment and it would therefore be inexpedient to allow the defendant to defend for the mere purpose of delaying the suit. It is for the plain and straight forward and not for the devious and crafty. Per Muhammed JSC Pages 24 – 25 paras G – B in UBA & anor vs. Alh. Babangida Jargaba (2007) 5 SC 1.
The defendant who has been served with the plaintiff’s processes above referred must within the prescribed time, file among others a statement of defence and a written reply in opposition to the application for summary judgment. per. AMINA AUDI WAMBAI, J.C.A.
COURT: DUTY OF COURTS; THE DUTY OF TRIAL COURT TO EVALUATE EVIDENCE
While I agree with the appellant’s counsel that the Judge had a duty to evaluate the evidence placed before him to ascertain that the plaintiff was entitled to the claim, the only evidence placed before the lower court were the depositions of plaintiff’s witnesses, the affidavit evidence and the exhibits thereto attached. per. AMINA AUDI WAMBAI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
KADUNA SOUTH LOCAL GOVERNMENT Appellant(s)
AND
NORTH LINKS CONSTRUCTION LIMITEDRespondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Kaduna State High Court of Justice delivered on 5th March, 2008 in suit No.KDH/KAD/29/2008 by Hon. Justice M. M. Ladan wherein summary Judgment was entered in favour of the Respondent in the absence of the Appellant’s notice of intention to defend the suit.
The Respondent as the plaintiff before the Lower Court took out a writ of summons and a statement of claim on the 22/01/2008 and claimed against the Appellant, then as defendants, the following:-
“1. The Plaintiff’s claim is for the sum of N42,173,112.99 (Forty Two Million, One Hundred and Seventy Three Thousand one Hundred and Twelve Naira, Eighty Nine Kobo against the defendant being balance of unpaid contract sum executed by the plaintiff.
2. Cost of Filing this suit.”
The matter was fixed for hearing on 05/03/2008. However, when the case was called, the Appellant who was said to have been served with writ of summons and the other Court processes on the 30/01/2008, the proof of which the learned trial Judge acknowledged, was absent from the Court.
Thereupon the learned Counsel for the Respondent, Sadau Garba Esq., applied for Judgment under Order 11 Rule 5 (2) of the Kaduna State High Court Civil Procedure Rules.
The Lower Court acceded to that application and entered the following Judgment in favour of the Respondent against the appellant, thus:-
(1) The defendant shall pay the sum of N42,173,112.89 to the plaintiff being balance of unpaid contract sum executed by the plaintiff.
(2) The defendant shall bear the cost of this suit upon application for cost by the Respondent’s Counsel, the sum of N200,000 was awarded as cost against the defendant (now Appellant).
The Appellant prayed the lower Court vide a motion on notice dated 26/05/2008 for an order setting aside the whole proceedings in the suit including service of Court processes, Judgment and Garnishee order of 22nd May, 2008, for lack of Jurisdiction and lack of service and fraud. The motion was accompanied by an affidavit and a written address.
In reaction to the motion, the respondent filed a 4 paragraphed counter-affidavit and a written address opposing the motion.
The motion was heard and in his considered Ruling on 31/07/2008, the learned trial Judge dismissed same for lacking in merit.
Dissatisfied with the decision of the Lower Court for entering default Judgment in favour of the respondent, the Appellant through his Counsel, Miss F. M. Shittu filed a notice of appeal dated 02/06/2008 on the 03/06/2008 challenging the decision. In accordance with the Rules of this Court, briefs were exchanged. The Appellant’s brief of argument dated 12/03/2013 and filed on 14/03/2013 as well as the reply brief filed on 25/03/2014 were settled by M. T. Muhammad Esq.
The Respondent’s Counsel by a motion on notice sought and was granted extension of time to file the Respondent’s brief of argument. The Respondent’s brief filed on 27/02/2014 was settled by N. E. Onyegbosi Esq.
In his brief of argument the learned Appellant’s Counsel raised 3 issues for determination. These issues are:-
“1. Whether the entire proceedings and Judgment before the Lower Court were not vitiated in view of the defective service of originating process and failure to move and argue for motion for summary Judgment – grounds 1 and 2.
2. Whether the Lower Court was right to have entered Judgment in favour of the respondent on the ground that the appellant had not filed a defence without evaluating the materials placed before the Court Ground 3.
3. Whether the appellant’s motion dated 20th May, 2008 was rightly dismissed in view of the materials placed before the Lower Court Ground 4.”
Learned Counsel for the Respondent in his brief of argument raised a notice of preliminary objection challenging ground 3 of the grounds of appeal and issue No. 2 predicated on the ground 3. However, the preliminary objection was not moved at the hearing of the appeal.
When the appeal was called on the 12/06/2014, the Appellant’s Counsel Mrs S. Abdulkadir adopted the Appellant’s brief after which the Respondent’s Counsel N. E. Onyegbosi Esq, argued and adopted the Respondent’s brief without a word about the preliminary objection.
The position of the Law is clear on this. Although through the cases of this Court including AROYINKEYA VS. AWOYINKA (2005) ALL FWLR (Pt.24) 1 at 18 and now having been settled by the Supreme Court in several cases including AGBAKA VS AMADI (1998) 7 SC (pt.11) 18 at 20 a Respondent who raises a preliminary objection in his brief of argument without filing a separate Notice of Preliminary objection would be allowed to move same provided that the brief of argument was served on the Appellant at least 3 clear days before the hearing of the appeal, the said notice of preliminary objection incorporated in the brief can only be argued when moved by the Respondent before the Appellant argues his appeal. See Mkpen Tiza & 1 Anor. vs. Iorakpen Begha (2005) 33 WRN 158 at 171. Where as in this case the respondent fails to draw the attention of the court or seek leave to argue his preliminary objection before the appellant argues his appeal, the preliminary objection shall be deemed and automatically becomes abandoned. See Onochie & Anor vs. Odogwu & anor (2006) 17 WRN 1 at 20. Thus, the arguments canvassed in the respondent’s preliminary objection contained at pages 1 – 2 of his brief of arguments are discountenanced. The appellants issue No.2 is therefore considered proper.
For the purpose of the determination of this appeal, I shall adopt the three issues raised by the appellant.
ISSUE NO.1
Whether the entire proceedings and Judgment before the Lower Court were not vitiated in view of the defective service of originating process and failure to move and argue the motion for summary Judgment – grounds 1 and 2.
On this issue, it was contended for the appellant that the originating process was served on one Yakubu the Personal Assistant to the Chairman of the appellant instead of effecting same on the Secretary as required by Sections 179 and 180 of the Local Government Law Cap 191 Laws of Kaduna State 1991 and without any affidavit of service before the court the learned trial Judge relied on the statement of the clerk that the appellant was served and proceeded to enter judgment for the respondent. Counsel contended that such service was fundamentally defective and as proper service of originating process is a condition precedent to the exercise of court’s jurisdiction, the proceedings conducted in the absence of or on defective service was a nullity, citing the cases Abe vs. UBN Plc (2005) All FWLR (Pt.297), Oyun Local Government vs. F.A.B.S. Ltd (2006) All FWLR (Pt.334) 1983, Integrated Builders Ltd. vs. Domzag Vent (Nig) Ltd (2005) All FWLR (Pt.263) 780 at 292 para D – E.
In response, it was contended for the respondent that the appellant’s major complaint is with regards to the mode of service and not that they were not aware of the subject matter of the appeal as the appellant did not establish that it was not part of the scope of the Personal Assistant to the Chairman to receive processes on behalf of the Chairman as is the practice even with the Attorneys-General, Commissioner’s of Police, I.G.Ps etc. whose Personal Assistants receive processes on their behalf.
While conceding that service of writ of summons and other processes on a defendant is a fundamental condition precedent to the exercise of jurisdiction by the court, counsel contended that as the Local Government Council was dissolved at the time of the institution of the suit and the affairs of the Council was then been run by an Interim Management Committee, the service on the Personal Assistant to the Chairman of the Committee was proper.
It was vehemently contended that the appellant was aware of the suit in that the appellant upon receipt of the processes invited the respondent for negotiation and even paid N5M (paragraph 3(e) of respondents counter affidavit at page 107 of the record). Citing the decision of this Court in Panache Communications Ltd vs. Aikhomu (1994) 2 NWLR (Pt.327) 420 Per Sulu Gambari, JCA and Kenfrank Nig. Ltd. vs. U.B.N Plc (2002) 1 NWLR (Pt.789) 46.
counsel submitted that service on 3rd party that eventually gets delivered personally to the party is good personal service as the essence of service is to bring the matter to the attention of the person against whom the writ was issued.
It was further contended citing the case of Odua Investment Company Ltd vs. Joseph Taiwo Talabi (1997) 7 SCNJ 600 at 654, that the duty of the appellant upon being served with a process in breach of the law and before any further step is taken is either to object to the service by applying to have same set aside or to ignore the defect and proceed to take steps in the matter.
Counsel posited that Section 179 and 180 of the Kaduna State Local Government Law Cap 191 do not state that if the Chairman or Secretary are not personally served, they cannot come to court to timeously challenge the service.
Counsel urged upon us to hold that the totality of the evidence shows that the appellant had notice of the action against it but choose to go into slumber, such that this Court should not allow technicalities to blot, make an ass of or dent the image of justice in this case.
In reply, it was canvassed for the appellant that the cases cited by the respondent’s counsel were cited out of context as in PANACHE, the bailiff served the writ on the 1st appellant by giving it to a lady who untimately delivered same to those directly concerned and that same is not the situation in this case.
In determining this issue, it is imperative to state that the issue of personal service of an originating process is very fundamental and goes to the root of the competence of the court to exercise any jurisdiction over the suit as the court has no jurisdiction over a person who has not been served. See Ogbunyiya vs. Okudo (1990) NWLR (Pt.146) 551. See also Abe vs. UBN Plc (supra).
The question for determination in this issue as canvassed by both counsel in my view can be narrowed down as to whether in the circumstances of this case, the service of the originating process effected on the Personal Assistant to the Chairman of the appellant instead of effecting same on the Secretary of the appellant vitiates the proceedings of the 5/3/08.
It has been profusely canvassed for the appellant to the effect that Sections 179 and 180 of the Kaduna State Local Government Law Cap 191 having provided for the mode of service of originating processes, the service of the process on the Personal Assistant to the Chairman of the appellant different from what the Local Government Law provided amounts to non-compliance, as the Interim Management Committee cannot make a law different from those of the Local Government Laws, Cap 191, as to the person to be served.
The respondent drew our attention to the fact that as at the time of the institution of the suit, the appellant, (the Kaduna South Local Government) was dissolved and in its place was constituted an Interim Management Committee.
To this effect, the respondent filed a 4 paragraphed counter-affidavit to the appellant’s motion seeking to set aside the judgment. I find it useful to set out paragraph 3 of the counter-affidavit;
“(3) That I am informed by the Managing Director of the judgment Creditor/Respondent on 3/7/2008 at 10:00am in our chambers and I verily believe him to be true and correct as follows:
(a) That as at 27/11/2007 and as at 30/1/2008 when the originating summons in this suit was issued, there was no elected council in place to run the affairs of the judgment debtor/applicant as recognized by law.
(b) That the Kaduna State Government had before then dissolved the Council and in its place appointed Interim Management Committee to run the affairs of the judgment debtor/applicant.
(c) That it was the Interim Management Committee that changed the service of court processes on the Secretary and directed same to the office of the Chairman.
(d) That the Interim Management Committee ran the affairs of the judgment debtor/applicant with different rules and regulations from that of the Local Government Law, 1991.
(e) That after the service of the originating summons, the judgment debtor/applicant called on the judgment creditor/respondent for resolution of the matter whereof they paid the judgment creditor N1000,000.00 (Five Million Naira) only.
(f) That all services of the court processes were done by the bailiff of this Honourable Court and the judgment debtor/applicant is aware of it.”
As canvassed by the respondents counsel there was no challenge to these depositions in the counter-affidavit as the appellant did not file a further and better affidavit to deny these facts. By law, these facts deposed in the counter-affidavit are deemed admitted. See Badejo vs. Fed. Min. of Education (1996) 8 NWLR (Pt.464) 15.
By these unchallenged facts as at the time of the issuance of the originating summons, there was no elected council in place and the affairs of the council was run by an appointed Interim Management Committee which Committee directed that the process be served on the office of the Chairman.
It is common ground that the Personal Assistant to the Chairman one Yakubu was served with the writ of summons and the other processes. Most significantly to show that the appellant was aware of the suit when the service of the writ was effected on Yakubu, (the Personal Assistant to the Chairman), the appellant called upon the respondent for the resolution of the matter and pursuant to that, even paid the sum of N5,000,000.00 (Five Million) Naira.
What more evidence is required to establish that the appellant was aware of the suit, when the appellant, based on the writ of summon, invited the respondent for negotiation and proceeded to pay the sum of N5M? Without controverting these facts that as at the time of the suit the council (the appellant) was dissolved and the Interim Management Committee in place directed that the process be served on the office of the Chairman upon which the Personal Assistant was served with the processes, the appellants must be deemed to have admitted these facts. The appellant has also by operation of the same principle of law, admitted that the appellant had acknowledged the receipt of the writ by inviting the respondent for a resolution and paying the sum of N5M.
In a situation like this where the appellant upon becoming aware of the writ being contended to be served on a wrong person, did not challenge the defective service for same to be set aside, but proceeded to invite the respondent for the resolution of the issue and even went ahead to pay some money N5M, I think the reasoning in the cases of Panache (supra) and Kenfrank (supra), by this court applies with very much same force in this instant appeal. In any case, the ends of justice would be better met by accepting that service has been properly effected since the purpose of service of process is to bring the matter of the processes to the attention of the person against whom the writ has been issued. Per Sulu Gambari, JCA in Panache (supra).
The appellant having been notified of the writ of summons and having in pursuance of the writ not only invited the respondent at whose instance the writ was issued and served, but has also in part satisfaction of what the writ commended him, paid the sum of N5M, it is my humble view that it will amount to reverting back to the heydays of technicalities at the expense of substantial justice, to hold that the service effected in this case vitiates the proceedings. Achike JSC, in Egolun vs. Obasanjo (1999) 7 NWLR (Pt.611) 355 at 413 has given a sound warning to courts to shift away from the technicalities of the heydays as the weight of judicial authorities have shifted away from undue reliance on technicalities to doing substantial justice even-handedly to the parties in the case.
In view of his, I resolve this issue against the appellant and hold that the service of the writ and other processes effected on one Yakubu the Personal Assistant to the Chairman as directed by the Interim Management Committee in charge of the affairs of the appellant at the time of the issuance and service of the writ, does not vitiate the proceedings of the court conducted on 5/3/08.
This leads to the 2nd issue.
ISSUE No. 2
Whether the Lower Court was right to have entered Judgment in favour of the respondent on the ground that the appellant had not filed a defence without evaluating the materials placed before the Court.
The main complaint of the appellant on this issue is that the learned trial Judge did not evaluate the available evidence before entering judgment for the respondent as is required of him even for a suit placed on the undefended list akin to the procedure for summary judgment in this case, citing S.P.D.C Ltd vs. Artho Joe Nigeria Ltd (2006) All FWLR (Pt.331) 1330 at 1345 C – E Per Augie JCA, and Auberguine Collections Ltd vs. Habib Bank Ltd (2002) FWLR (Pt.128) 7276 at 1286 B – D Per Musdapher JCA, (as he then was).
It was contended that had the learned trial Judge evaluated the evidence placed before him, he would have come to a conclusion that the suit was not maintainable because;
“(1) The contract, the subject matter of the suit was not between the appellant and the respondent but between appellant and one SKY Technical and Construction Company Ltd and there was no nexus shown between the appellant and respondent in any contractual relationship as exhibit 24 and paragraphs 19 and 23 wherein it is averred that SKY and Silver Nig, Ltd. had transferred its rights in the contract to the respondent offend the principle of law that a person not a party to a contract cannot benefit from same. UBA Plc vs. Jargaba (2007) All FWLR (Pt.380) 1419 cited.
(2) That the documents allegedly emanating from or being in custody of the appellant are public documents not certified.”
The respondent whose response to this issue was by attacking the competence of the said issue and whose preliminary objection has been deemed abandoned, did not canvass any argument on this issue. That notwithstanding, the appellant’s argument has to be considered on its merit.
Now, the procedure for summary judgment is set out in Order 11 of the Kaduna State High Court (Civil) Procedure Rules.
By Order 11 Rule 1, a plaintiff who believes that a defendant has no defence to his claim shall take out an originating process together with a statement of claim and depositions of witnesses with other exhibits and an application for summary judgment as well as a written addresses to be supported with an affidavit stating the grounds for his belief.
By Order 11 Rule 4 where the defendant intends to defend the suit, he shall not later than the time prescribed by the Rules for the filing of a defence, file;
1. the statement of defence
2. the depositions of witnesses
3. the exhibits to be used and
4. written address in reply to the application for summary judgment.
By Order 11 Rule 5(2): where any defendant fails or neglect to comply with the provisions of Rule 4, or it appears to the Judge that the defendant has no good defence to the claim, the Judge may enter judgment for the plaintiff.
The above is the procedure to be adopted by a court in respect of any suit instituted for summary judgment.
I quite agree that in purport, the summary judgment procedure is akin to the undefended list procedure in that both of them are aimed at disposing with dispatch cases, which are virtually uncontested or where there can be no doubt that the plaintiff is entitled to judgment and it would therefore be inexpedient to allow the defendant to defend for the mere purpose of delaying the suit. It is for the plain and straight forward and not for the devious and crafty. Per Muhammed JSC Pages 24 – 25 paras G – B in UBA & anor vs. Alh. Babangida Jargaba (2007) 5 SC 1.
The defendant who has been served with the plaintiff’s processes above referred must within the prescribed time, file among others a statement of defence and a written reply in opposition to the application for summary judgment.
While I agree with the appellant’s counsel that the Judge had a duty to evaluate the evidence placed before him to ascertain that the plaintiff was entitled to the claim, the only evidence placed before the lower court were the depositions of plaintiff’s witnesses, the affidavit evidence and the exhibits thereto attached.
The witness deposition is at pages 8 – 17 wherein exhibits A to D5 were referred to. The exhibits are contained at pages 14 – 74.
At paragraphs 5 and 16 of the statement of claim to which exhibits C and C2 respectively were referred, the plaintiffs/respondent canvassed that with the consent of the appellant S.K.Y Technical & Construction Company Ltd. and Silver Nigeria Ltd. respectively, transferred their rights and liabilities in the contracts to the respondent. Exhibits C and C2 evident the agreements to that effect.
I cannot in the light of these agree with the learned appellants that there is no nexus between the appellants and the respondent with respect to the contracts subject of the suit.
On the claim that the learned trial Judge did not evaluate the evidence, although the trial Judge did not disclose his reasons on the record, the various documents, and exhibits were all placed before the court. Learned trial Judge held inter alia that:
“….it shows that they have no defence to the claim.”
By the wordings of Order 11 Rule 5:2 where the defendant as in the instant case fails or neglects to comply with Rule 4, or even where the defendant complies with Rule 4 but it appears to the court that the defendant has no good defence, the Judge may proceed to enter judgment for the plaintiff. (Underlining for emphasis).
In the instant case, there was no statement of defence before the court despite the fact that the defendant/appellant was served with all the processes. The Judge pursuant to Rule 5(2) proceeded to exercise his discretion to enter judgment for the respondent who had placed all the necessary materials before the court and without anything from the defendant/appellant’s side to sway the court not to exercise its discretion in favour of the respondent.
On the submission amounting to objection to the admissibility of the documents attached as exhibits, the said objection ought to have been raised before the lower court before the date fixed for the hearing of the suit and not to be raised in this Court, I therefore discountenance that argument of the learned appellant’s counsel. In the light of these, I also resolve this 2nd issue against the appellant.
The 3rd and final issue is:
ISSUE NO, 3
Whether the appellant’s motion dated 20th May, 2008 was rightly dismissed in view of the materials placed before the Lower Court. Ground 4.”
In support of this issue, learned appellant’s counsel conceded that this issue is intertwined with issue No. I, but contended that upon being aware of the judgment of the trial Court, the appellant filed a Motion to set aside same on ground of fraud and lack of jurisdiction.
The said motion and affidavit in support are at pages 91 – 93 of the record. Learned counsel submitted that service on Yakubu, Personal Assistant to Chairman was not service on the Chairman and cited Oyun Local Government v. FABs (supra). He contended that it was bad service and urged the court to resolve the issue in their favour.
I have already in issue No. I resolved the issue of the service on Yakubu the Personal Assistant to the Chairman. I do not intend to revisit that in this issue.
The only live aspect of this issue is whether the appellant’s motion to set aside the said judgment of the lower court was properly dismissed.
The affidavit in support of the motion as well as the written address essentially centred on the issue of lack of service on Secretary as required by Sections 179 and 180 of the Local Government Law which was contended to have nullified the proceedings and entitling the applicant to have the judgment set aside.
The counter-affidavit and the Respondent’s written address were to the contrary. The learned trial judge referring to the affidavit in support and the counter-affidavit particularly paragraphs 3(a) and (b) of the counter affidavit found that the appellant’s council having been dissolved, service on the Chairman of the Interim Management Committee was a good seryice and held that that was why the Chairman took steps and even went ahead to negotiate with the judgment Creditor (See p.129 of the record). On the basis of these, the learned trial judge, dismissed the motion. I cannot fault the reasoning of the trial judge for dismissing that motion. In the circumstance, I also resolve this issue against the appellant.
On the whole, this appeal lacks merit and is hereby dismissed. I make no order for costs.
ABDU ABOKI, J.C.A.: I have read before now the judgment just delivered by AMINA AUDI WAMBAI, J.C.A. I am in agreement with her reasons and conclusion. I will also like to add that service of Court processes on Governmental Bodies such as a Local Government council, where appearances have not yet been entered can be effected on the local Government Council by leaving same in the office of the secretary to the council or any other designated person in the service of the local government council. Where the party to be served is a natural person, he could be served at his place of work or where he resides or in the local government he serves.
Service of originating processes on a defendant is very important for it is the process that kick starts the litigation process. It is a condition precedent to the exercise of jurisdiction by the Court. See National Bank Ltd v. Gathrie (1993) 3 NWLR (pt.284) page 643 at 659.
The failure of service of the originating process is a fundamental lapses or flaw and a person affected by any order but not served with the process is entitled ex-debito justicia to have the order set aside as a nullity. See Kida v. Ogunmola (2006) 13 NWLR (Pt.987) page 377 at 393.
Service of Court process can be established before the Court by an affidavit of service. The affidavit must depose expressly that a Defendant was served. The service can be proved by the signature of the Defendant himself. See Okoye v. Centre Point Merchant Bank Ltd (2008) (pt.1110) page 335 at 357.
In the instant case in the absence of an elected Local Government Council the service of the Court process on the Interim Management Committee of the Local Government Council was a good service. There is no merit in this appeal and it is hereby dismissed.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I am in agreement with my learned brother Amina Audi Wambai, JCA that the appeal of the Appellant against the decision of Hon. Justice M. M. Ladan of the Kaduna State High Court lacks merit.
I also dismiss the appeal with no order as to costs.
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Appearances
S. Abdulkadir (Mrs) with Z. Sambo (Mrs)For Appellant
AND
N. E. Onyegbusi Esq.For Respondent
