FIRST BANK NIGERIA PLC v. CORNELIUS OZOEGBULA
(2014)LCN/7474(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of October, 2014
CA/OW/52/2010
RATIO
APPEAL: PRELIMINARY OBJECTION IN AN APPEAL: THE PROCESS OF FILING A PRELIMINARY OBJECTION
We have stated, several times, that, apart from the requirement that at least 3 clear days be given to Appellant of notice of a preliminary objection against an appeal before the hearing of the appeal, the said Notice of preliminary objection has to be filed in Court, and appropriate filing fees paid, to activate the process. See the case of Garba Vs Ummuani (2013) 12 WRN 76; (2012) LPELR – 9814 (CA), where this Court held: “Where a process of Court has not been duly filed and the appropriate fees paid, the same ceases to be a valid process of Court. After all, it is the filing fee that breathes life into a Court process, except where the fee is waived or exempted, as in processes filed by government and government departments…” Moyosore 242; Onwugbufor Vs Okoye (1996)1 NWLR (pt. 424) 252; GTB PLC Vs Fadco Industries Nig. Ltd & Anor (2013) LPELR 21411 CA. per. ITA G. MBABA J.C.A.
COURT: COURT DISCRETION; WHETHER AN APPELLANT HAS NO RIGHT OF APPEAL OVER THE EXERCISE OF DISCRETION BY THE COURT TO PLACE A MATTER ON THE UNDEFENDED LIST
The Law is that Appellant has no right of appeal over the exercise of discretion by the Court to place a matter on the undefended list. See Section 14 (1) of the Court of Appeal Act, 2004, which says: “…but no appeal shall lie from any order made ex-parte, or by consent of the parties, or relating only to cost.” Off Course, it is well a known fact that it takes and exparte order of the trial Court to place a Suit on the Undefended list, as the lower Court did on 17/8/2007. See also the case of Oceanic Bank Plc Vs Oladepo (2012) LPELR-19670 (CA); (2013) 8 WRN 157; Nwana V UBN Plc (2003) LPELR-21823 CA. per. ITA G. MBABA J.C.A.
COMPANY LAW: SERVICE OF PROCESSES ON COMPANIES; THE LAW GUIDING SERVICE OF PROCESSES ON COMPANIES AND CORPORATE PERSONS
That, of course, remained the law guiding service of processes on companies and corporate persons, where the Rules of Court of a specific jurisdiction fails to stipulate the mode of service of processes on companies. Resort, therefore, is had to the provisions of the section 78 of the Companies and Allied Matters Act (CAMA), which says: “A court process shall be served on a company in a manner provided by the Rules of Court and any other document maybe served on a company by leaving it at or sending it by post to the registered office or head office of the company.”
Strict application of the above provision as in Mark Vs Eke (Supra), led to much controversy and in fact, hardship on plaintiffs whose cases and matters were prone to being struck out or dismissed where the originating processes were served on branch office of a defendant who was a corporate person. Sometimes, the law looked on, in pretence or apparent mischief, as counsel for a corporate person approached the court, admitting service of the original process on his client, but applying for the nullification of the service for being improper – because it was not served at the registered or head office of the company! See the case of Kraus Thompson Org. Ltd v. University of Calabar (2004) ALL FWLR (pt. 209) 1148; (2004) 9 NWLR (pt. 879) 631; UBN plc vs. Samari (2012) ALL FWLR (pt. 648) 943 held (4). In the case of Oseni vs Oloje & Anor (2014) LPELR – 22919 CA, where I said: “For me, it sounds ridiculous, as it beats every sense of logic and sound reasoning, for a man, who has been served with the process of court and for which he responded by entering appearance and filing processes in his defence to contest the case and at the end of the case, turns around and seeks to nullify the judgment on grounds that there was no due service of the originating process on him. Particularly that no affidavit of service was deposed to by the plaintiff that he had been served with the process of the Court that originated the case! That is pandering to ridiculous level of use of technicalities to frustrate justice! Having come to court and taken part in the proceedings, without complaint of any sort, I believe the Appellant cannot, in good conscience raise any issue of compliance with Order 2 Rule 1 (4) of the Fundamental Rights (Enforcement procedure) Rules 1979, since their appearance and taking part in the case were conclusive evidence of compliance with the law relating to service. Afterall, the purpose of that provision is to ensure the Respondent is duely served, before the court can hear the Appellant.”? See also Khalid v Al-Nasim Travels & Tours Ltd & Anor (2014) LPELR-22331 (CA).
I have lamented about the apparent injustice of a party coming to court, after service of the process of court on him, to pray the court that the service be set aside because the same was served at the branch office of the bank (not at the registered or head office of the bank), whereas the branch was all that the customer knew and transacted business with and the branch manager assumed all the responsibilities of the Bank when it was receiving deposits from the customer, only to plead incapacity when the customer tries to call the bank to order! Thankfully, that situation is changing as many Rules of Court have now seen the need to provide for service of court processes on branch companies operating in their jurisdictions. See the case of Mobile Producing Nig UnLtd v. Effiong (2013) ALL FWLR (pt. 673) 1942, where it was held: “By the provisions of section 78 of the Company and Allied Matters Act, 1900 . . . and Order 12 Rule 8 of Akwa Ibom State High Court (Civil procedure) Rules, service of processes at the office of a company not being necessarily registered office is permitted…” Similar provision is made is Order 7 Rule 9 of the Imo State High Court (Civil Procedure) Rules,….., which says: “Subject to any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or other process requiring personal service maybe served on the organisation by delivering to a director, secretary, trustee or other senior, principal or responsible officer of the organisation, or by the leaving it at the registered, principal or advertised office or place of business of the organisation within the jurisdiction.” (Underlining mine). Of course, the important phrase in the above which makes a huge difference is: “…at the registered, principal, or advertised office or place of business of the organisation, within the jurisdiction” Thus, the branch office of Appellant in Owerri which is also the advertused and place of business of the Appellant, qualifies for service of the process of court on the Appellant in suit originating in Owerri, Imo State, by the law.
In the case of Khalid vs Ismail (2013) LPELR-22325 (CA) Appellant had sought to nullify a judgment entered for Respondent on the ground that the trial judge had no jurisdiction to make the order because, he was not duly served with the requisite originating process, even after he had filed notice of intention to defend the suit and had taken part in the proceedings. It was held: “Thankfully, the Appellant knew that the suit was one brought under the undefended, list procedure, and so even if the Registrar. . . failed to serve him with the provisions of Order 23 Rule 1-4 of the High Court (Civil Procedure) Rules, he knew what the claim was about and took the appropriate steps towards it . . . He was therefore not misled or under any disadvantage or prejudice, even if he was not given the provisions of the law. I believe the Undefended list procedure was developed because of people like the Appellant, who would want to invent every legal trick . . . to frustrate a simple case of debt payment and run away from civil or contractile obligations . . . The undefended list procedure came into force to facilitate speedy determination of simple debt recovery and liquidated money demands, to check antics of mischievous debtors” per. ITA G. MBABA J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
FREDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
FIRST BANK NIGERIA PLC – Appellant(s)
AND
CORNELIUS OZOEGBULA
(For Himself and Representing the Administrators of the Estate of Late Chief Dominic Ozoegbula of Umuokuzu Awara in Ohaji/Egbema L.G.A of Imo State). – Respondent(s)
ITA G. MBABA J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Imo State High Court in Suit No HOW/430/2007, delivered on 7/9/2007 by Hon Justice C. M. I. Egole, whereof the learned trial Judge entered judgment for the plaintiff (Respondent herein) in the Suit, earlier placed on the Undefended List for hearing and determination.
The Plaintiff had on 9/8/07 claimed as follows, as per the writ (placed on the Undefended List):
“(a) The sum of N4,659,635.50 (four million Six Hundred and fifty Nine Thousand, six hundred and thirty five Naira, fifty kobo) being money withdrawn from the Current Account No.2922010032799 in the 1st Defendant Bank belonging to the Estate of Late Chief Dominic Ozegbula of Umuokuzu Awara in the Ohaji/Egbema Local Government Area of Imo State, without the consent and permission of the plaintiff.
(b) Interest in the said sum of N4,659, 635.50 at the rate of 21% per annum or at the prevailing Commercial Bank rate, from 1st day of March 2007 till judgment is given,”?
On 7/9/2007, when the matter come up for hearing, the 1st Defendant (Appellant herein) was represented by one Duru, T. O. (Head of O. P. S. of the Bank) and K. A. Orjiako Esq, as Counsel. There was no appearance for 2nd Defendant. 1st Defendant’s Counsel prayed for adjournment saying, he got instruction from the Bank, through a call that morning to represent the Bank. The application was opposed by Ugorji Esq, Counsel for the plaintiff, on the ground that the matter was fought on the undefended list procedure; that none of the Defendants had filed any notice of intention to defend the Suit and affidavit, therefor, as required by order 23 Rule 3(1) of the High Court (Civil procedure) Rules. The trial Court agreed with him and ruled in favour of the plaintiff, entering judgment for the plaintiff in the said sum of Four Million, Six Hundred and Fifty Nine Thousand, Six Hundred and Thirty Five Naira, Fifty Kobo (N4,659,635.50). The claim for interest was rejected, but cost of N5,000.00 (five thousand Naira) was awarded to the Plaintiff.
That is the judgment Appellant is appealing against, as per the notice of Appeal, filed on 11/9/2007, disclosing three (3) grounds of appeal, as per pages 24-26 of the Records of Appeal. Appellant later Amended the Notice of Appeal and, finally, relied on a further Amended Notice of Appeal filed on 16/1/2013, with the leave of this Court, wherein it formulated Five (5) grounds of Appeal. Appellant filed Amended brief of Argument on 16/1/2013 and distilled three (3) issues for determination, as follows:
“(1) whether the non service of the process on the Appellant at its registered office has not denied the trial Court of its jurisdiction to hear the matter (Ground 1.)
(2)whether the affidavit evidence supported the claim and is such that can be heard on the undefended list. (Ground 2 and 3)
(3)Whether by Exhibits exhibited, the 1st Respondent was granted letters of Administration over the money in custody of the Appellant in account No. 2922010032799 and therefore entitled to administer the said account. “Grounds 4 and 5)
The 1st Respondent field his Brief on 18/7/12 which was deemed duly filed on 28/11/12. He raised objection to the appeal on pages 2 and 3 of the brief but filed no separate Notice of appeal to activate it. In the Brief the Respondent distilled two (2) Issues for determination:
“(1) Whether, having appeared with her Counsel and participated in the proceedings in the Suit, the appellant can still complain of non-service of processes filed in this Suit.
(2) Whether the Learned Trial Judge has any duty to determine any fact(s) which were not made issues in the proceedings in this Suit.”
The Appellant filed a Reply brief, to respond to the preliminary objection and the respondent also filed what he called a Reply on points of law – to appellant’s written address.
At the hearing of the appeal, on 23/9/10, the parties adopted their briefs, starting with the 1st Respondent, who called our attention to his preliminary objection.
I do not think the 1st Respondent’s alleged Notice of Preliminary objection merits any consideration of this Court, as the same was never filed as required by Order 10 Rule 1 of this Court’s Rules, 2011, to activate the jurisdiction of this Court! We have stated, several times, that, apart from the requirement that at least 3 clear days be given to Appellant of notice of a preliminary objection against an appeal before the hearing of the appeal, the said Notice of preliminary objection has to be filed in Court, and appropriate filing fees paid, to activate the process. See the case of Garba Vs Ummuani (2013) 12 WRN 76; (2012) LPELR – 9814 (CA), where this Court held:
“Where a process of Court has not been duly filed and the appropriate fees paid, the same ceases to be a valid process of Court. After all, it is the filing fee that breathes life into a Court process, except where the fee is waived or exempted, as in processes filed by government and government departments…” Moyosore 242; Onwugbufor Vs Okoye (1996)1 NWLR (pt. 424) 252; GTB PLC Vs Fadco Industries Nig. Ltd & Anor (2013) LPELR 21411 CA.
To make the situation worse, the Respondent, on page 2 of the brief, merely said:
“NOTICE is hereby given that at or before the hearing of this appeal, the 1st respondent shall raise a preliminary objection that this appeal be dismissed on the following grounds:
(a)The appeal is founded on a incompetent Record of appeal
(b)The appeal is not properly before the honourable Court.” (Emphasis mine)
That appears to only indicate 1st Respondent’s intention to raise preliminary objection, which he never did!
In this case, the Records of Appeal which 1st Respondent alleged to be incompetent and so the appeal not properly before us, was deemed duly compiled and transmitted to this Court on 2/3/11, by this Court. One therefore wonders about the basis of the alleged objection, after the process has been deemed duly compiled and transmitted to this Court!
The Objector had, in his argument on page 2 of the Respondents brief, said:
“…The bundle of documents compiled and transmitted by the Appellant show clearly that none of the processes purported to have been filed in this suit was certified. . . It is trite law that uncertified Court processes transmitted as record of appeal cannot be perused by this honourable Court as their authenticity will be doubtful . . . Uzo Vs Nna limo (2000)11 NWLR (pt. 678)237 at 244 and Udeorah Vs Nwachukoriobi (2000)1 NWLR (pt.640)239 at 241-242”
That argument belonged to the past and would have been appropriate at motion by the Appellant for extension of time to compile and transmit the Records and to deem what had been Exhibited as duly done. The argument cannot be tenable at this stage, after the grant of the application as duly compiled and transmitted to this Court. To entertain the alleged preliminary objection would therefore, amount to sitting on appeal over the earlier Ruling of this Court, which adjudged the Records of appeal in this appeal duly compiled and transmitted to this Court. That, of course, cannot be done.
The purported preliminary objection, not being competent or proved, is hereby struck out/dismissed for the reasons stated above.
Arguing the appeal, E. O. Igboko Esq, Learned Counsel for the Appellant, submitted that there was no service of the Court processes on the Appellant. He relied on the case of Kalu Mark Vs Eke (2004)17 NSCQR 60 at 62 and Section 78 of the Companies and Allied Matters Act (CAMA). He also relied on Order 72 Rule 8 of the Imo State High Court (Civil Procedure) Rules, 1988.
It was Counsel’s submission that service of the processes should have been effected on the Appellant at its registered office, not at its Owerri branch, more so, as the transaction complained of was domiciled at Port Harcourt, Rivers State; that none of the principal officers of the Appellant on whom Court process could be served was in the Owerri branch; that by serving the process at Owerri branch, the Respondent did not intend the Appellant to prepare and file its defence within time, as the branch did not have the records and needed to liaise with the head office to have the detail information; that Appellant’s Counsel therefore, had to appear in the Court to ask for a date to enable them prepare the necessary papers for filing. He relied on the case of Madukolu Vs Nkemdilim (1962) ANLR 586-590; SGBN Ltd Vs Adewunmi (2003)10 NWLR (pt. 829)526 at 539; NNPC Vs CLIFCO (2011) 46 1 NSCQR 114 at 148-149, on the issue of absence of jurisdiction, where there is no proper service of the Court process.
On issue 2, Counsel submitted that the case was one that could not be heard on the undefended list, without taking oral evidence; that the deceased (who operated the account, when he was alive) died on 25/7/2005 and the letter of administration was issued on 22/11/05; that the statement of account covered from 27/7/05 to 15/3/2007, but the amount claimed, did not specify the period covered by it, and a Court does not act on speculations.
On issue 3, Appellant said that the Respondent lacked the capacity to bring the action in respect of an account which was domiciled in Port Harcourt branch of the Appellant, owned by Chief Dominic Ozoegbula & Son; that a person does not have locus standi to bring an action in a representative capacity as an administrator of the estate of a deceased person, until he has been granted the letters of administration. Appellant’s Counsel relied on the case of Administrator/Executors Vs Eke Spiff (2009) 37 NSCQR 364 at 393; Counsel argued that the letters of administration shown or exhibited was in respect of money in an account at First Bank, Port Harcourt, which had N13,176.71 as total outstanding balance as at 25/7/2005 when Chief Domunic Ozoegbula died; he asserted that the letters of administration was not in respect of Account No. 2922910032799.
He urged us to resolve the issues for the Appellant, allow the appeal and transfer the Suit to the general cause list for hearing and determination.
The 1st Respondent’s Counsel L.C. Ugorji Esq, on issue 1, submitted that it was not in dispute that the processes were served on the Appellant, and it representative and Counsel came to Court and participated in the proceedings, without any objection; that Appellant’s contention, that the processes of Court were not served on them at the head office of Appellant is defeated, having taken part in the Suit, without complaining; that the doctrine of waiver applies here. He relied on the case of Feed & Food Farms Nig. Ltd Vs NNPC. (2009)38 NSCQR 840 at 855.
Counsel argued that the essence of service of Court process is to make the party aware of the relief sought against him, and the decision to put up appearance, is that of the party, if he opts to defend the action. He relied on Adegoke Motors Ltd Vs Adesanya (1989)3 NWLR (pt. 109) 250 at 255, on the meaning of appearance. He said that the right to challenge the proceedings of Court is apparently waived, where there was failure to protest or take objection at the earliest opportunity. He relied on Gbadamosi Vs Kabo Travels Ltd (2000)8 NWLR (pt. 668)243 at 260. He submitted that the cases of Mark Vs Eke (supra), SGBN Ltd Vs Adewunmi (supra) and NNPC Vs CLIFCO (supra) did not apply to this case.
On issue 2, Counsel submitted that since the case was heard on the undefended list and the Appellant did not join issues with the 1st Respondent, the Claims of the 1st Respondent, at the trial, were never challenged, and the trial Court was enjoined to act on the claims of the Respondent and so the issues raised by the Appellant in issues 2 and 3, or grounds 2,3,4, and 5 of the appeal, were not before the trial Court; that appeal must relate to and challenge the validity of the judgment appealed against.
He relied on Adelekan Vs ECU line NV (2006) & MJSC 142 at 158; he also relied on Obi Vs Peat Vs Akhimien (1976) 75C 157; Buraimoh Vs Bamgboge (1989)3 NWLR (pt. 109) 352 at 355 to say that one has to controvert facts in the pleadings to stop the Court from acting on the facts pleaded. Counsel also relied on the case of The Registered Trustees of The Rosicrucian Order (AMORC) Vs Attoe (2009) All FWLR (pt. 467)136 at 150 to say that a party does not need to have a letter of administration to take action to protect family property, as head of the family, where the property is threatened. He urged us to resolve the issues against Appellant and dismiss the appeal.
The 2nd Respondent filed no brief and did not contest the appeal.
RESOLUTION OF ISSUES
I think it is only the issue one that is credible for the consideration of this appeal. Appellant’s issue 2 is an attempt to fault the trial Court for placing the Suit on the undefended list, alleging that by the affidavit in support of the claim of the 1st Respondent, the case should not have been placed on the undefended list. The Law is that Appellant has no right of appeal over the exercise of discretion by the Court to place a matter on the undefended list. See Section 14 (1) of the Court of Appeal Act, 2004, which says:
“…but no appeal shall lie from any order made ex-parte, or by consent of the parties, or relating only to cost.” Off Course, it is well a known fact that it takes and exparte order of the trial Court to place a Suit on the Undefended list, as the lower Court did on 17/8/2007. See also the case of Oceanic Bank Plc Vs Oladepo (2012) LPELR-19670 (CA); (2013) 8 WRN 157; Nwana V UBN Plc (2003) LPELR-21823 CA.
On issue 3, Appellant argued as if there was any other process before trial Court (other than the Claims of the Respondent, namely, the writ of Summons, motion ex-parte and the affidavit of the Respondent in support of his application,) which clearly stated the capacity with which the Respondent brought the Suit. The said capacity had not been disputed, and the trial Court had a duty to rely on the depositions before it to enter judgment for the plaintiff (1st Respondent). See the case of Chanchangi Air-Lines (Nig.) Ltd Vs African Petroleum (2014) LPELR -22922 (CA), where this Court held:
“In this case (at hand) Appellant did not even file any Counter affidavit to contest the averments of the Respondent in support of the application for summary judgment… That means, as far as the motion for summary judgment was concerned, which was founded on the supporting affidavit, Appellant did not contest the application, as he deposed to no affidavit to deny, controvert, or debunk the claims of the Respondent,” See University of Benin Bs K.T. Org. Ltd (2007) NWLR pt. (1055) 441 at 464.
Thus, all the issues raised by the Appellant in the grounds 2 to 5 (issues 2 & 5) touched on matters outside the reach and contemplation of the judgment appealed against, and Appellant is not permitted to raise them, since they did not arise from the judgment of the trial Court, dated 7/9/2007. See Ossai V FRN (2013)13 WRN 87;
“Appeals, the ground(s) thereof and the issue(s) therefrom, must be founded on a valid complaint, arising from the judgment on appeal…a valid complaint in an appeal must arise from the judgment appealed against, challenging a live issue or ratio decidendi in the judgment of the lower Court., See Shettima Vs Goni (2011)18 NWLR (pt. 1297)413 at 440; Ayangoke & Anor Vs Keystone Bank Ltd (2013) LPELR-21806 CA
The said issues 2 and 3 by the Appellant (together with the grounds 2, 3, 4 and 5 of the appeal) and the arguments there under, being incompetent, are hereby struck out.
Appellant’s issue 1 was whether the non-service of the process on Appellant at its registered office, has not denied the trial Court its jurisdiction to hear the matter. Appellant had relied on the case Mark Vs Eke (2004)5 NWLR (pt.865)54, where the Supreme Court, in re-stating how to effect service of Court process on a limited liability company, said:
“The Companies and Allied Matters Act, by section 78 makes a provision as to how to serve documents generally on 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 it 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” Per Musdapher JSC (as he then was)
That, of course, remained the law guiding service of processes on companies and corporate persons, where the Rules of Court of a specific jurisdiction fails to stipulate the mode of service of processes on companies. Resort, therefore, is had to the provisions of the section 78 of the Companies and Allied Matters Act (CAMA), which says:
“A court process shall be served on a company in a manner provided by the Rules of Court and any other document maybe served on a company by leaving it at or sending it by post to the registered office or head office of the company.”
Strict application of the above provision as in Mark Vs Eke (Supra), led to much controversy and in fact, hardship on plaintiffs whose cases and matters were prone to being struck out or dismissed where the originating processes were served on branch office of a defendant who was a corporate person. Sometimes, the law looked on, in pretence or apparent mischief, as counsel for a corporate person approached the court, admitting service of the original process on his client, but applying for the nullification of the service for being improper – because it was not served at the registered or head office of the company! See the case of Kraus Thompson Org. Ltd v. University of Calabar (2004) ALL FWLR (pt. 209) 1148; (2004) 9 NWLR (pt. 879) 631; UBN plc vs. Samari (2012) ALL FWLR (pt. 648) 943 held (4).
In the case of Oseni vs Oloje & Anor (2014) LPELR – 22919 CA, where I said:
“For me, it sounds ridiculous, as it beats every sense of logic and sound reasoning, for a man, who has been served with the process of court and for which he responded by entering appearance and filing processes in his defence to contest the case and at the end of the case, turns around and seeks to nullify the judgment on grounds that there was no due service of the originating process on him. Particularly that no affidavit of service was deposed to by the plaintiff that he had been served with the process of the Court that originated the case! That is pandering to ridiculous level of use of technicalities to frustrate justice! Having come to court and taken part in the proceedings, without complaint of any sort, I believe the Appellant cannot, in good conscience raise any issue of compliance with Order 2 Rule 1 (4) of the Fundamental Rights (Enforcement procedure) Rules 1979, since their appearance and taking part in the case were conclusive evidence of compliance with the law relating to service. Afterall, the purpose of that provision is to ensure the Respondent is duely served, before the court can hear the Appellant.”?
See also Khalid v Al-Nasim Travels & Tours Ltd & Anor (2014) LPELR-22331 (CA).
I have lamented about the apparent injustice of a party coming to court, after service of the process of court on him, to pray the court that the service be set aside because the same was served at the branch office of the bank (not at the registered or head office of the bank), whereas the branch was all that the customer knew and transacted business with and the branch manager assumed all the responsibilities of the Bank when it was receiving deposits from the customer, only to plead incapacity when the customer tries to call the bank to order!
Thankfully, that situation is changing as many Rules of Court have now seen the need to provide for service of court processes on branch companies operating in their jurisdictions. See the case of Mobile Producing Nig UnLtd v. Effiong (2013) ALL FWLR (pt. 673) 1942, where it was held:
“By the provisions of section 78 of the Company and Allied Matters Act, 1900 . . . and Order 12 Rule 8 of Akwa Ibom State High Court (Civil procedure) Rules, service of processes at the office of a company not being necessarily registered office is permitted…”
Similar provision is made is Order 7 Rule 9 of the Imo State High Court (Civil Procedure) Rules,….., which says:
“Subject to any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or other process requiring personal service maybe served on the organisation by delivering to a director, secretary, trustee or other senior, principal or responsible officer of the organisation, or by the leaving it at the registered, principal or advertised office or place of business of the organisation within the jurisdiction.” (Underlining mine).
Of course, the important phrase in the above which makes a huge difference is:
“…at the registered, principal, or advertised office or place of business of the organisation, within the jurisdiction”
Thus, the branch office of Appellant in Owerri which is also the advertused and place of business of the Appellant, qualifies for service of the process of court on the Appellant in suit originating in Owerri, Imo State, by the law.
In the case of Khalid vs Ismail (2013) LPELR-22325 (CA) Appellant had sought to nullify a judgment entered for Respondent on the ground that the trial judge had no jurisdiction to make the order because, he was not duly served with the requisite originating process, even after he had filed notice of intention to defend the suit and had taken part in the proceedings. It was held:
“Thankfully, the Appellant knew that the suit was one brought under the undefended, list procedure, and so even if the Registrar. . . failed to serve him with the provisions of Order 23 Rule 1-4 of the High Court (Civil Procedure) Rules, he knew what the claim was about and took the appropriate steps towards it . . . He was therefore not misled or under any disadvantage or prejudice, even if he was not given the provisions of the law. I believe the Undefended list procedure was developed because of people like the Appellant, who would want to invent every legal trick . . . to frustrate a simple case of debt payment and run away from civil or contractile obligations . . . The undefended list procedure came into force to facilitate speedy determination of simple debt recovery and liquidated money demands, to check antics of mischievous debtors”
I think the case falls into the same category as the one cited above. Appellant never filed any Notice of intention to defend the suit and has not denied any of the averments of the Respondent relating to the account and the amount in the account which Appellant is custodying. Appellant never contested the claim of the Respondent as the Administrator of the Estate of Late Chief Dominic Ozoegbula who held the account. One therefore wonders why the Appellant, a bank, is fighting to resists and order to release the judgment debt to the Estate of the deceased!
I see no merit in the appeal as I resolve the issue against the Appellant and dismiss the appeal.
Appellant shall pay the cost of this appeal, assessed at fifty thousand naira (N50, 000. 00) only.
IGNATIUS IGWE AGUBE, J.C.A.: I was privileged to read in advance the very erudite and expository Judgment of my learned brother, I. G. MBABA, JCA and I cannot but agree with his reasoning therein that the Appeal lacks merit and is accordingly dismissed. I also affirm the judgment of the lower court and abide by the order as to costs.
FREDERICK O. OHO, J.C.A.: I have read in draft form the judgment just read by my learned Brother, Ita G. Mbaba, JCA. I agree both with the reasons and conclusions and do not wish to add anything to the opinion expressed therein.
I also agree that this Appeal fails on all grounds that it should be and is hereby dismissed with cost to the respondent assessed at N50,000.00.
Appearances
E. O. Igboko EsqFor Appellant
AND
L. C. Ugorji Esq, with him L. E. Osuiwu EsqFor Respondent
