PLASTEX NIGERIA LIMITED v. MAINLAND OIL AND GAS (2014)

PLASTEX NIGERIA LIMITED v. MAINLAND OIL AND GAS

(2014)LCN/7633(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of January, 2018

CA/L/335/2014

RATIO

PRACTICE AND PROCEDURE: SERVICE OF PROCESS; THE CONSEQUENCE OF THE ABSENCE OF THE SERVICE OF PROCESS

It is common ground that service of process is fundamental, the absence of which renders all proceedings taken void ab initio. This no doubt remains the position of the law, established in a long line of cases including Mark vs. Eke (2004) 1 SC (pt.11) 1, where Musdapher JSC stated that:
“when an order is made or judgment entered against a defendant who claimed not to have been served with the originating process such an order or judgment becomes a nullity if the defendant proves non-service of the originating process.” See, Okoye vs. Centre Point Merchant Bank Ltd (2008) 15 NWLR (pt. 1110) 335, NBN Ltd vs. Guthrie Nig. Ltd (1993) 3 NWLR (pt. 284) 643 and NEPA vs. Uruakpa (2010) LPELR-4409 (CA). per. HAMMA AKAWU BARKA, J.C.A.

COURT: RULES OF COURTS; WHETHER IT IS THE RULES OF COURTS THAT GOVERNS THE SERVICE OF PROCESSES ON CORPORATIONS

It is trite that it is the rules of Court that governs the service of processes on corporations. In that regard, the rules which ought to govern the service of the originating service and other processes on the appellant, was Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules, which provided:
“subject to any statutory provision regulating service on a registered Company, Corporation or body corporate, every originating process or other process requiring personal service may be served on the organization by delivery to a director, secretary or other senior or principal officer of the organization or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction.”
It is clear therefore that by the combined effect or Section 78 of CAMA and Order 7 Rule 9 of the rules of the lower Court, service on the appellant can only be affected when the writ or document originating the proceedings or any other process is given to any director, secretary or any principal officer of the company or by leaving the same at the office of the company, whether its registered office or any of its offices. See the cases of Mobil Producing Nigeria Unlimited vs. Effiong (2011) LPELR 9055 (CA); Duwin Pharmaceutical & Chemical Company Ld. vs. Esaphanna SRL, Italy and Anor. 2017 LPELR 42695 CA per Nimpar JCA. per. HAMMA AKAWU BARKA, J.C.A.

PRACTICE AND PROCEDURE: SERVICE OF ORIGINATING SUMMONS; THE IMPORTANCE OF THE SERVICE OF ORIGINATING PROCESS OR HEARING NOTICE ON A LITIGATION OR APPEAL

JUSTICE

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWAJustice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKAJustice of The Court of Appeal of Nigeria

Between

PLASTEX NIGERIA LIMITEDAppellant(s)

AND

MAINLAND OIL AND GASRespondent(s)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the ruling of S.B.A Candide Johnson, delivered on the 21/10/2010, in suit No ID/724/2007 between Mainland Oil and Gas vs. Plastex Nigeria Limited and unknown persons wherein the applicants’ motion on notice dated the 15/12/2007, seeking amongst other prayers, the setting aside of the judgment of the Court delivered on the 17th of April, 2008 was dismissed in its entirety.

In brief, the appellant Plastex Nigeria Limited was in this application the applicant and the defendant in the main suit. The respondent as plaintiff by their writ of summons and the statement of claim, claimed against the respondent now appellant for the following reliefs:
1. A declaration that the claimant is the bona fide owner of all that piece and parcel of land known and called Block C, plot 27 Amuwo Odofin Industrial Scheme in Amuwo Odofin Local Government Area containing an area approximately 2.898 hectares and more particularly described in Survey plan No. 1146/SD/35 annexed to the certificate of occupancy registered as No. 77 at page 77 in Volume 2005k of the

Lagos State of Nigeria Lands Registry office Ikeja.
2. A perpetual injunction restraining the defendants jointly and severally by themselves, their agents, servants, thugs and/or privies from trespassing on the piece or parcel of land forming the subject matter of this suit lying, being and presently known as Block C, plot 27 Amuwo Odofin Industrial Scheme in Amuwo Odofin Local Government Area of Lagos State. The dimension and abuttal’s of which were shown and delineated on survey plan No. 1146/SD/35 annexed to the certificate of occupancy registered as No. 77/77/2005k of the lands registry in the office at Ikeja Lagos State either by digging, excavating, demolishing or constructing on the same or any part thereof and restraining them from entering thereto or tempering or dealing with the same or in any way howsoever disturbing the claimant in its quiet possession of the same.
3. N2, 000, 000 (Two Million Naira) being special and general damages suffered by the claimant arising from the wrongful act of trespass and injury committed by the Defendant on the said parcel of land.
4. Cost of this action and other ancillary relief that the Court

may consider necessary in the circumstances of the case.” Refer to pages 5 and 6 of the Record Appeal.

According to the appellant, the respondent filed the writ of summons and the statement of claim, and front loaded the witness statements and exhibits. On the 15/6/2007, the respondent was granted leave upon an ex-parte application to serve the appellant, a limited liability company, the originating processes and the interim injunction granted by substituted means, to wit by pasting same on the land in dispute. The appellant who claims that his head office is at Osogbo, Osun State, and its advertised place of Business in Lagos not on the land in dispute, could not enter appearance in-spite of the purported service of the appellants by pasting on the land in dispute. Appellant further stated that despite the non-appearance of the appellant in Court, the lower Court proceeded and granted an order for substituted service of the pre-trial forms 17 and 18 still on the appellant by pasting on the land in dispute.

The appellant having failed to file any process, and or participate at the pre-trial conferencing, the Court upon the urging of the respondent

entered judgment against the appellant in relation to the disputed land. In entering judgment, the lower Court observed that:
“the Court records show that despite service of not only the originating Court process but also form 17 and 18 on the defendants, they have continued to absent themselves from every aspect of these proceedings by their failure to file any processes in this suit and more relevant to this Ruling, the defendants and or their counsel (if any) have failed to attend or participate in the pre-trial conference therein.
In effect since neither the defendants nor their counsel (if any) attended the pre-trial conference nor obeyed the scheduling order implicit therein, I hold that they are in contravention of Order 25 Rule 6(b) (supra) and the question that arises therefore is what judgment (if any) is the claimant entitled to.
The front loaded pleading of the claimant is unchallenged, uncontroverted and uncontradicted and the legal consequence is that the composite frontloaded pleading of the claimant shall be deemed admitted by the opposite party and since it is credible or believable, I shall proceed to act upon it as a true

version of the case put forward by the claimant…
Accordingly, judgment is entered forthwith in favour of claimant in line with paragraph 20(i) and (ii) of the statement of claim as follows:
1. A declaration that the claimant is the bona fide owner of all that piece and parcel of land known and called Block c, plot 27 Amuwo Odofin Industrial Scheme in Amuwo Odofin Local Government Area containing an area approximately 2.898 hectares and more particularly described in Survey plan No. 1146/SD/35 annexed to the Certificate of Occupancy registered as No. 77 at page 77 in Volume 2005k of the Lagos state of Nigeria Lands Registry Office Ikeja.
2. A perpetual injunction restraining the defendants jointly and severally by themselves, their agents, servants, thugs and/or privies from trespassing on the piece or parcel of land forming the subject matter of this suit lying, being and presently known as Block C, plot 27 Amuwo Odofin Industrial Scheme in Amuwo Odofin Local Government Area of Lagos State. The dimension and abuttal’s of which were shown and delineated on survey plan No. 1146/SD/35 annexed to the Certificate of occupancy registered as No.

77/77/2005k of the lands registry in the office at Ikeja Lagos State either by digging, excavating, demolishing or constructing on the same or any part thereof and restraining them from entering thereto or tempering or dealing with the same or in any way howsoever disturbing the Claimant in its quiet possession of the same.”

The Appellant further stated that on becoming aware of the suit, on the 17th of April, 2008, filed in its statement of defense and front loaded its processes at the Court’s registry. The appellant’s enquiries as to when pre-trial would commence proved to no avail, and appellant became aware that judgment was entered against it only on the 17/4/2008, and promptly filed the application seeking for the setting aside of the judgment delivered on the 1714/2008. On the 15/12/2009 the application was heard, and in its ruling delivered on the 21/12/2010, the appellant’s application seeking for order of Court setting aside its judgment delivered on the 17/4/2008 was dismissed.

Dissatisfied with the decision of the lower Court, refusing to set aside its judgment, appellant filed a notice of appeal to this Court on the 25/2/2014. The

extant notice of appeal is the amended notice of appeal filed on the 9/6/2016, but deemed filed on the 29/11/2016. The appellant filed the appellant’s brief on the 9/6,2016 also deemed filed on the 29/11/2016. Appellant’s reply brief was filed on the 28/3/2017. On the 16/10/2017, Mr. Olanuan Obile with Paul Mbioma and Aderize Alao, identified and adopted the appellant’s brief and reply brief as their submissions, and urged the Court to allow the appeal, and to set aside the ruling of the lower Court, thus setting aside its judgment which was a nullity.

Ayo Adesanmi leading Omilade Adeyemi and Olajide Salami for the respondent, filed in the respondent’s brief of argument incorporating a preliminary objection on the 29/12/2016. Additional records were also filed by him on the 29/12/2016. In adopting his brief, the learned counsel contended that the appellant having been served by substituted means, the application of the appellants was without merit, and the Court should dismiss the appeal on same.

In the appellant’s brief settled by Olanuan Obile, a sole issue was proposed for consideration. It reads:
“Having regards to the facts and

circumstances of this matter, whether the Court below was not wrong in refusing to set aside its judgment which is a nullity.”

On his part and in the respondent’s brief settled by Wole Olanipekun (SAN), incorporating a preliminary objection, dated the 29th of November, 2016, and argued at pages 3 to 10 of the brief, the learned senior counsel is of the opinion that the instant appeal is grossly incompetent based on the following grounds:
i. All the arguments canvassed in the appellants brief do not flow from the issue which ought to be the gravamen or substratum of the appeal.
ii. Grounds 2, 3, 4 and 5 of the appellants appeal constitute an appeal which was filed out of time against the final decision of the lower Court delivered on the 17th April, 2008.
iii. Particular 2 of ground 1 and particular 1 of ground 2 are augmentative.

Moving his argument under the three distinctive grounds of the preliminary objection, and in respect of the first ground, i.e that all the arguments canvassed in the appellants brief do not flow from the issue which ought to be the gravamen or substratum of the appeal, counsel referred to the sole issue

identified by the appellants, and noted that the operative clause in the sole issue is “refusing to set aside its judgment” and contended that it is clear from the clause extracted, that appellants concern in this appeal is the refusal of the lower Court to set aside its judgment, and not with the lower Courts discretion to extend time within which the appellant may apply to have its final judgment set aside, and referred to paragraphs 4.1 to 4.34 of the appellants brief. Further referring to the appellant’s application dated the 15th December, 2009, wherein the appellant sought for the following reliefs,
1. An order setting aside the service on the 1st defendant of the writ of summons and other accompanying processes in this case.
2. An order extending the time within which the 1st defendant may apply to set aside the judgment of this Honorable Court delivered on 17th April, 2008.
3. An order setting aside the judgment of this Honorable Court delivered on 17th April, 2008.

He contended that from prayers 2 and 3 which are complementary and must be granted together, submits that any appeal questioning the discretion of the lower Court

refusing a prayer for extension of time also questions the refusal to extend time, and the actual refusal to set aside the said judgment.

On grounds 2, 3, 4 and 5 of the appellants appeal being incompetent, the learned silk opined that appellant muddled up the crucial findings in the final judgment of 17th April, 2008 with the ruling of the Court delivered on the 21st of December, 2010. He complained that by the content of ground 2, and its particulars, shows that the appeal is against the final judgment, and not the ruling of the Court. He contended also that by the particulars of ground three, it is the validity of the final judgment that was being contested. He argued that a ground of appeal cannot stand in isolation, but must of necessity be predicated upon the particulars amplifying it. He therefore submits on this background that grounds 2, 3, 4 and 5 are incompetent and the sole issue articulated liable to be struck out. The case of Kachia vs. Yazid (2001) 17 NWLR (pt. 742) 431 @ 453 was cited in support.

On certain particulars of grounds 1, 2, 3, 4 and 5 being argumentative and conclusive, the learned silk listed particular 5 of ground one,

particular 4 of ground 2, particular 6 of ground 4, and particular 4 of ground 5 of the Notice of Appeal as being argumentative and conclusions. This he argued is against the agreed legal position that an appeal should only express the disaffection with the judgment of the lower Court, as held in the case of Guda vs. Kitta (1999) 12 NWLR (pt. 629) 21 @ 39. He urged the Court to strike out the particulars that are argumentative and or conclusive as held in a number of decisions listed by him.

The learned counsel for the appellant in his reply brief prayed the Court to dismiss the preliminary objection as being misconceived and do not represent the true state of affairs as the objection is only meant to bifurcate the real issue in dispute. It is his argument that all arguments in the appellants brief flow from the sole issue raise by him. He argued that all the arguments in the appellants brief are substantially stating that the application to set aside the judgment of the Court below ought to be granted on the reason that same was a nullity. He further argued that the learned senior counsel abandoned that line of argument on the germane question but

rather dwelt on area of technical justice which is long discarded. Further to that, it was argued that where the nullity of a judgment on the ground of lack of jurisdiction is or fair hearing are raised, every exercise of discretion is suspended. The case of Nwora vs. Nwabueze (supra) was cited in support of the argument. He asserts that failure to treat the issue of extension of time does not make the arguments not to flow from the sole issue raised for determination, as where the judgment of a Court is found to be a nullity, the Court will not consider any other thing rather than to set it aside ex debito justicia.

On the issue that grounds 2,3, 4 and 5 of the grounds of appeal are incompetent, it is the argument of the learned counsel that the grounds are competent against the decision of the lower Court which refused to set aside the decision of the lower Court delivered on the 21st of December, 2009 refusing to set aside its decision of the 17th April, 2008. He argued that the refusal by the Court below had the same effect of appalling against the judgment of the 17th April, 2008. Placing reliance on the case of Nigerian Breweries Plc vs. Chief Worhi

Dumuje (2016) 8 NWLR (pt. 1515) 536 @ 578, argued that the appellant has exercised his choice of filling a motion as against appealing the same, and therefore had no need to seek for extension of time to appeal against the judgment. Also relying on the case of Lafia Local Government vs. Nasarawa State (2012) 17 NWLR (pt. 1328) 91, the learned counsel opined that a preliminary objection can only be taken against the hearing of an appeal and not against the competence of the brief of a party.

On the contention that the particulars of the grounds of appeal highlighted were argumentative and conclusions, learned counsel made reference to the decision of Mustapha JCA in CBN vs. Okeb Nigeria LH & Ors (2014) LPELR – 2316 CA, and Dakolo and Ors vs. Rewane-Dakolo & Ors (2011) LPELR-915 to the effect that the fact that a ground of appeal is argumentative is not sufficient to deny the appellant his right of appeal, when on the face of the appeal issues arise for consideration. He commends the cases of Doma vs INEC (2012) 13 NWLR (pt. 1317), and Onuoha vs. Ndubueze (2002) 2 NWLR (pt. 750) 172 @ 183, and prayed the Court to dismiss the respondents preliminary

objection for being frivolous and unmeritorious. I have given due consideration to the arguments with respect to the respondents preliminary objection. I wish to start by saying that the object and purpose of a preliminary objection succinctly stated in the case of Okereke vs. Musa Yaradua (2008) 12 NWLR (pt. 1100) 95, deals with the competence of the suit or the appeal as the case may be, where if upheld has the effect of terminating the life of the suit or appeal.

Starting with the respondents complaint in the preliminary objection that some of the highlighted particulars in the grounds of appeal are argumentative, or conclusions, I must agree with the appellants that the stand taken by this Court in the cases of CBN vs. Okeb Nigeria Ltd & Ors (supra) and the Apex Court in Dakolo vs. Dakolo (supra), strikes on the respondents contention. Indeed where parties to an appeal and the Court of appeal are not misled by the contents of the ground of appeal and the accompanying particulars, which are meant to shed light to the grounds raised, the complaint about its form, which form does not occasion any miscarriage of justice becomes a technicality, which the

Courts have since discarded. The Supreme Court did not mince words having asserted that the fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the appellant his right of appeal when on the face of the grounds of appeal, notable issues arises for the consideration of the Court.

The other notable issue raised by the respondents in their preliminary objection, relates to the contention that grounds 2, 3, 4 and 5 were filed out of time. Here too I accept the appellant’s argument backed by the decisions of Nigerian Breweries Plc vs. Chief Worji Dumuje (supra) and Adeyemi-Bero vs. LSDPC (2013) ALL FWLR (pt. 701) 1447 @ 1508, that the appellant in the instant case had a choice between appealing the decision of the lower Court, or initiating an application to set it aside. Having opted in pursuing the initiation of an application setting aside the decision, it becomes unnecessary asking for extension to appeal the decision. Invariably the law is that an attack on the decision of the Court refusing to set aside its decision is more or less a contention against the said decision. In fact the challenge in the appeal being that

bordering on questioning the jurisdiction of the lower Court, the only decision the Court has to make is whether the lower Court was seized with the jurisdiction to have determined the suit the way it did. All other matters particularly that dealing with the exercise of discretion must wait, as the Court has no discretion when its jurisdiction is being questioned. The totality is that the preliminary objection lacks content and merit, and same is dismissed.

ON THE MAIN APPEAL.
Proffering arguments in support of his sole issue, the learned counsel for the appellants, drew the Courts attention to the fact that the dispute originating this appeal bothers on who owns the parcel of land known and called as Block c, plot 27 Amuwo Odofin Industrial Scheme in Amuwo Odofin Local Government Area, with a land area of approximately 2,898 hectares, and more particularly described in survey plan No 1146/SD/35. He points to the fact that the suit is for declaration and injunction, before the lower Court, which Court was sitting as a pre trial Court.

Learned counsel now submits that there was no proper service of the originating processes on the appellant in

accordance with the requirements of Order 7 Rule 9 of the High Court of Lagos State Civil Procedure Rules 2004, and the decision of the Apex Court in Mark vs. Eke (2004) ALL FWLR (pt. 200) 1455 @ 1478. He submits also that the process of substituted service does not apply to corporations, and placing reliance on the case of Madukolu vs. Nkemdilim (1962) 7 ALL NLR 587 @ 594, posits that the failure to serve the appellants in accordance with the law, is fatal to the judgment of the Court below, rendering the same a nullity. Moreover counsel complains that the lower Court was wrong to have entered judgment in a land suit at the pretrial stage. He submits further that the significance of pre-trial conference proceedings introduced for the first time, in the civil procedure rules of Lagos State in 2004, as explained in the case of Ikeyi vs. Crown Realties PLC (2015) ALL FWLR (pt. 780) 1209 @ 1222, is meant to facilitate the amicable resolution of disputes, and where parties are unable to resolve their dispute amicably at the pre-trial conference, to prepare a report and to simplify the dispute for the trial judge. He submits that the pre-trial judge has a coercive

power which must be exercised where there are cogent, compelling, relevant and verifiable facts placed before the judge, which discretionary power must be exercised with caution and judicially. He argued that there were no such compelling and or verifiable facts before the Court, upon which it based its judgment, and in line with the decision of Salami JCA in Investors International (London) Ltd vs. First Bank of Nigeria Ltd (2008) 10 NWLR (pt. 1096) 427 @ 441, capable of being set aside. He submits that there was no proof appellant was aware of the pre-trial conferencing proceedings. Alluding to the judgment of the lower Court at page 123 of the records, counsel holds the view that there was no material fact upon which the Court based its discretionary powers to enter judgment against the appellant as the originating processes and the pre-trial forms 17 and 18 were not served on the appellant as required by law. Further still it was contended for the appellant that there was no evidence of the hearing notice against the 2nd and 17th of April 2008, and that there was no proof that the Court ordered that hearing notices be served on the appellant. The cases of

Lawrence Scott Emuakpor vs, J. J. Ukavbe (1975) 12 SC 31 @ 35 and P. N. Emerah & Sons (Nig) Ltd vs. Dunu (1998) 9 NWLR (pt. 564) 80 @ 90 were cited and relied upon. Appellant further complains that the trial before the lower Court was not on merit, as the claim is that founded in equity, which the Courts enjoin must be proceeded against with caution. Still submitting, it is the argument of learned counsel that the Court lacked the jurisdiction to invoke Order 25 Rule 6 (b) in land matters. He contended that the issue of land being a right constitutionally guaranteed, that right cannot be divested summarily or as a sanction for failing to attend a pre-trial session. The dissenting opinions of Katsina-Alu and Oguntade JJSC, in the case of Saleh vs. Monguno (2006) 15 NWLR (pt. 1001) 26 @ 70 was referred to. Counsel also relied on case law, and in particular, the cases of Maduike vs. Tetelis (Nig) Ltd (2016) 6 NWLR (pt. 1509) 619 @ 639, and Odudu Ekeng Inyang & Ors vs. Nnaemeka Chukwuogor (2007) ALL FWLR (pt. 344) 165 @ 183 – 184 to posit it that the Courts frown at situations where discretionary or default judgments are entered in land matters. It was

further contended for the appellant that witness statement and front loaded documents are not evidence unless adopted or tendered in Court. He argued that the witness statement relied upon by the Court not having been adopted and the documents not having been tendered, the reliance on same had no legal foundation. He cited the cases of Idris vs. ANPP, and Onyenwe vs. Anaejionu (2014) LPELR 22495, which held that a witness statement becomes evidence upon its adoption by the deponent, and who tenders the documents in conformity with the dictates of the Evidence Act. He insists that the judgment of the lower Court was a nullity, which the lower Court ought to have set aside by its ruling of the 21st December, 2010, as there were serious defects bordering on its jurisdiction to have entertained the case in the first place, as the originating processes were not served on the appellant, and there was no proof that the appellant was aware of the proceedings of the 2nd and 17th April, 2008.

The respondent from pages 10 to 30 of its brief, and in response to the sole issue raised by the appellant, argued on whether the Court below was not correct in refusing to

extend time within which the appellant may apply to set aside its final judgment delivered on the 17th of April, 2008 and thereafter refusing the order setting aside the said final judgment. The learned senior counsel responding on the alleged invalid service of the originating process on the appellant, alluded to the provisions of Section 78 of the Companies and Allied Matters Act, and Order 7 Rule 5 (10 and Order 7 Rule 9 of the Lagos State High Court (Civil Procedure) Rules, 2004, and further referred to paragraphs 9 and 10 of the affidavit of one Chief Lawal Obelawo at pages 135 to 141 of the records of appeal, as well as the further affidavit of the said Chief Lawal Obelawo at paragraphs 11 to 14, and submits that by the clear admission of the deponent, shows that the originating processes were indeed served on the appellants as required by law. He argued that the case of Mark vs. Eke (supra) heavily relied upon by the applicants is inapplicable. Senior counsel called in aid the case of NBC vs. Ubani (2014) 4 NWLR (pt. 1398) 421 to the effect that the service of any originating process on a company is proper and valid once there is proof of evidence of

receipt of the originating process by any principal officer within the jurisdiction of the Court. He referred to the holding of the lower Court at pages 381 – 382 of the records of appeal, and contended that the trial Court was on solid ground arriving at the conclusion that the appellant was served. On the alleged non-service of pre-trial forms on the appellant/hearing notice of proceedings, the learned counsel contended that the issue was not raised at the lower Court and no arguments were taken on the issue, therefore amounting to raising a fresh issue on appeal. He posits however that the lower Court granted an order for substituted service which the sheriff of the Court duly executed in strict compliance with the order of the Court. He argued that the date for the next hearing was also endorsed on the served pre-trial forms. In the circumstance, it was argued that the notification of the next adjourned date inserted in the order of the Court pasted on the gate constituted notification and or notice of the next adjourned date. He further posited relying on the case of Achuzia vs. Ogbomah (2004) All FWLR (pt. 227) 508 @ 523, that where a party is aware of

the next adjourned date of the suit, hearing notice of the impending proceedings becomes unnecessary. On the coercive power of a pre-trial Judge to impose sanction on a party which can only be exercised where cogent and verifiable facts are presented, the learned senior counsel contended that the learned counsel for the appellants submission was misconceived, incompetent and liable to be discountenanced. He submits that upon the examination of Order 25 Rule 6(b) of the rules of the lower Court, the discretion the Court must make is dependant and to be applied to the facts and circumstances of the facts before the trial judge. He states that the appellant having waited for one year and eight months or six hundred days before applying to set aside the final judgment, clearly outside the pre-trial conference period of three months as stipulated by the rules, the lower Court was right in holding that the applicant did not place sufficient materials before it, and therefore not worthy of a sympathetic consideration. It is his position on the point that the lower Court arrived at its conclusion after putting into consideration the peculiar facts and

circumstances before it, and therefore offers no basis for incurring the interference of this Court. On whether judgment cannot be entered in land matters during pre-trial proceedings, the learned silk submitted that the lower Court having found that service was effected on the appellants at page 123 – 124 of the records the lower Court considered the uncontroverted averments in the respondents pleadings, and rightly gave judgment to the respondent. The procedure adopted, learned senior counsel argued is in line with the decision of this Court in the case of GE Int’l Operations Ldt vs. Q-Oil & Gas Services (2015) 1 NWLR (pt. 1440) 244. He maintains that judgment whether declaratory or otherwise can be granted on mere admission or default of pleadings where the statement of claim is backed by affidavit evidence. On whether the Court lacked jurisdiction to invoke Order 25 Rule 6(b) of the High Court Rules, it is the contention of the learned counsel that the character of the rules show that it is a punitive section. He argued also that the provisions is all accommodating and do not specify the nature of the claim, whether land matters or otherwise. He

submits that the case of Odudu Ekeng Inyang & Ors vs. Nnaemeka Chukwuogor (supra) is inapplicable, as that decision was given against the background of the facts in that case. On the aspect whether witness statements and frontloaded documents are not evidence until adopted and tendered, the learned silk still referred to the decision of this Court in the case of GE Int’l Operations Ltd vs. Q-Oil & Gas Services (supra) at page 270, and submits that a written deposition becomes an affidavit once the deponent swears to an oath. In conclusion, the learned silk holds the strong view that the appeal constitutes an abuse of Court process, and the appeal be dismissed for want of merit.

By way of a reply brief, the learned senior counsel for the appellant recognized the nine specific areas argued by the respondents counsel, and on the lower Court’s refusal to extend time and to set aside its ruling for lack of sufficient reasons, the learned silk argued that the main reason why the Court was asked to set aside its ruling was because it was a nullity, and though the application was filed out of time, by the authority of Nwora vs Nwabueze (2011) 15 NWLR (pt

1271) 467 @ 507 established the principle that where a party seeks the setting aside of a decision for want of jurisdiction, the length of time becomes immaterial. He posits that the case of NBC vs. Ubani (supra) is inapplicable, and the authority of Mark v. Eze (supra) remains the applicable law as to the service on corporations. He posits further that the case of Achuzia vs, Ogbomah (supra) does not avail the respondent since there is a difference between service of pre-trial forms and service of hearing date. He also contended that it was not necessary to file a counter affidavit to the bailiffs affidavit of service, since it was not indicated therein that appellant was aware of the proceedings. On whether appellant waived his right to service having filed a statement of defence, the learned SAN drew the Courts attention to the fact that the statement of defense was filed after the delivery of the judgment. On whether the judgment in GE Int’l Operations Ltd vs. Q-Oil & Services (supra) permit judgment to be given in land matters without trial, it was contended that the facts of the instant case and that of the case cited are different, and reliance on

same would violently misrepresent the principles laid therein.
On whether the judgment given under Order 25 is judgment on the merit, counsel urged this Court to disregard the submissions of the learned SAN as the judgment was not on the merit. On whether the coercive powers of the pre-trial judge can be exercised in all cases, and no law debars judgment being entered in land matters during the pre-trial session by way of sanction, the learned silk opines that by virtue of Order 25 Rules 1 to 7 of the High Court of Lagos State 2004, a pre-trial judge lacks the jurisdiction to invoke its powers under the order, when the adverse party has not entered appearance nor filed pleadings. He maintains that the respondent’s arguments are misconceived, and there the appeal should be allowed, to set aside the decision of the lower Court for being perverse and a miscarriage of justice.

I have carefully studied the submissions of the two senior counsel, and my understanding of the complaint founding the instant appeal, is the contention by the appellant that his application for the setting aside of the decision of the lower Court entering judgment for the

respondent, in default of the appellants appearance at the pre-trial session, ought to have been granted, on the reasons that the decision was a nullity. It was the further contention of counsel that the lower Court lacked the jurisdiction to have proceeded with the case, the appellant not having been served according to the dictates of the law, and sundry other reasons. I intend to examine therefore, whether the appellant was duly served as required by the law, and further whether the lower Court’s refusal to set aside its judgment is maintainable.

vs. Guthrie Nig. Ltd (1993) 3 NWLR (pt. 284) 643 and NEPA vs. Uruakpa (2010) LPELR-4409 (CA).

Of equal importance is the fact the procedure for service of Court processes on corporations, is governed by Section 78 of the Companies and Allied Matters Act, which requires that the writ be served by giving same to any director, trustee, secretary or other principal officer at the registered office of the company or by leaving same at its registered office. Further emphasized this fact was when the Supreme Court per Mustapher JSC in the case of Mark vs. Eke (Supra) at p. 1478, where the eminent jurist stated that:
“The mode of service on a limited liability company under the relevant rules of Court is different from service of process on a natural person. 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 must be at its registered office of the company and it is therefore bad and ineffective it is done at a branch of the company. The procedure is by giving the writ to any Director, Trustee, Secretary or other

Principal Officer at the Registered Office of the Company or by leaving the same at its office.”

The argument of the Learned Senior Counsel for the appellant is that since the originating processes were not served on the appellant in accordance with the law, the purported service is incurable bad and any judgment arising there from on the defective service vitiated. Ditto the alleged service of the pre-trial forms 17 and 18, and the alleged hearing notice on the appellant.

The learned Senior counsel for the respondent fully understood the complaint of the appellant in this regard, and in his examination of Section 78 of CAMA, and Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules 2004 which Provides:
“Subject to any statutory provision regulating service on a registered company… every originating process….requiring personal service may be served on the organization by delivery to a director … or principal officer of the organization, or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction.”

It is the argument of the learned silk, which

the lower Court bought, that by reference to the appellant’s deposition in his affidavit sworn to on the 15th of December, 2009 to the effect that:
9. I am further informed by the said Chief Lawal Obelawo and I verily believe him that in the afternoon of Friday, 3rd August, 2007, he accompanied by Timothy Adetomiwa, a clerk in the 1st Defendant’s company visited Lagos and upon a routine visit to the land in dispute, he saw the Court processes in this case posted on the gate of the property in dispute and he erroneously assumed that they were processes relating to the suit for trespass to land (i.e Suit No: LD/815/2007: PLASTEX NIGERIA LIMITED V. MAINLAND OIL AND GAS LIMITED & 2 ORS) which he had instructed our office to institute against the claimant herein.
10. I am further informed by the said Chief Lawal obelawo and I verily believe him that he took off all the said Court processes and gave them to the said Timothy Adetomiwa who had accompanied him to the premises to bring them to our office. He thereafter proceeded the following day for his annual vacation by reason of which the Court did not do a follow up.
11. I am further informed by

the said Chief Lawal Obelawo and I verily believed him that because it was late evening and fearing that our office must have closed for the day, the said Timothy Adetomiwa returned to Osogbo with the processes with the intention of bringing them to our office on Monday, 6th August, 2007 in view of the fact that our office do not open for business on Saturdays and Sundays.
12. I am further informed by the said Chief Obelawo and I verily believe him that the said Timothy Adetomiwa on reaching Osogbo, however inadvertently filed away the said Court processes and the following month, he resigned his appointment with the 1st Defendant’s company.
13. I am further informed by the said Chief Obelawo and I verily believe him that it was when he visited our office on Friday 11th April, 2008 to enquire about the progress of Suit No: LD/815/2007 PLASTEX NIGERIA LIMITED V. MAINLAND OIL AND GAS LIMITED & 2 ORS and he mentioned in passing the processes which he had asked his former clerk to bring to our office, that it was discovered that the said clerk never brought the processes to our office.
14. Further to paragraph 13 above, he immediately sent for

the said processes and upon our perusal of the said processes, the existence of this suit was discovered.

He submits that this is conclusive proof of service of the originating processes on the appellants as envisaged by Section 78 of CAMA. He charged that by the decision of the Supreme Court in NBC vs Ubani (2014) 4 NWLR (pt. 1378) 421, the law has moved away from the rigid and arid region of technicality to the effect that a Court process must be served on the corporation at its registered office, or address, by holding that:
“This latter method (of service) has all the features of personal service on a party at any place he is found within jurisdiction that is to say, as is the case in ordinary suits. It implies in that case that any “director, secretary or other principal officer” can be served anywhere any of them can be found within jurisdiction.”

He submits that once there is proof of evidence of receipt of the originating process by any principal officer of the corporation, within the jurisdiction of the Court that serves as adequate service. The lower Court on the issue whole heartedly agreed with the learned senior counsel and held

that:
“In effect these paragraphs demonstrate that the substituted service ordered by this Court of the originating Court process achieved the legal purpose of substituted service which is to bring to the notice of a Defendant or party, in the most convenient and effective manner, the existence of a Suit or Court process, where prompt personal service in the usual manner, is not possible (Order 7 Rule 5(1).
I am satisfied that the substituted service on the 1st defendant even as a limited liability company was valid within the con of Section 78 Companies and Allied Matters Act (CAMA) and in view of the provisions of Order 7 Rules 5 (1) and 9 of the 2004 Lagos Rules as it was pasted at the disputed land and/or place of business of the organization within the jurisdiction, paragraph of the respondent’s counter affidavit asserts that on 30/5/07 the Applicants put and/or that an inscription was put on the fence of the disputed property, “this land belongs to Plastek Nigeria Limited”. Applicant’s Reply Affidavit reacts to other issues in the Counter affidavit but does not deny this averment and I hold that it is deemed admitted.”

On the alleged

non-service of the pre-trial forms on the appellant and the hearing notice, the learned silk placed premium on the order for substituted service of the pre-trial forms 17 and 18 to the effect that the forms be posted on the gate of the property in dispute, and which order of Court was carried out as evidenced by the proof of service sworn to by the bailiff of Court. He also submitted that the date of the next adjourned date for the continuation of the pre-trial proceedings was written on the lower Court’s order for service of the pre-trial conference forms, served along with the pre-trial forms to the effect that further proceedings were adjourned to the 12th March, 2009.

service may be served on the organization by delivery to a director, secretary or other senior or principal officer of the organization or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction.”
It is clear therefore that by the combined effect or Section 78 of CAMA and Order 7 Rule 9 of the rules of the lower Court, service on the appellant can only be affected when the writ or document originating the proceedings or any other process is given to any director, secretary or any principal officer of the company or by leaving the same at the office of the company, whether its registered office or any of its offices. See the cases of Mobil Producing Nigeria Unlimited vs. Effiong (2011) LPELR 9055 (CA); Duwin Pharmaceutical & Chemical Company Ld. vs. Esaphanna SRL, Italy and Anor. 2017 LPELR 42695 CA per Nimpar JCA.

The critical question for resolution is whether the service of the originating processes on the corporation by substituted means and the pre-trial papers as well as the hearing notices also served on the appellant by substituted means, satisfied the

requirement of the law exposed before now. I have in that con looked at the order for substituted service and paragraphs of the appellant’s deposition. I have also looked at the proof of service filed by the bailiff of the lower Court. The aggregate of which is that the appellants were purported to have been served by substituted means, as was effected upon the appellants by pasting of the documents on the perimeter fence of the land in dispute. It is this mode of service that learned senior counsel wants this Court to accept as having confirmed with the service on corporations pursuant to Section 78 of the Companies and Allied Matters Act. This Court in the case of RFG LH and Anor vs. Skye Bank Plc (2012) LPELR 7880 CA per: Ogunwumiju JCA, on whether a corporation such as the appellant, can be served by substituted service under the High Court of Lagos (Civil Procedure) Rules 2004, held that:
“In respect of service on the 1st defendant/appellant. I am aware of Section 78 of CAMA and Order 7 Rule 9 of the High Court of Lagos (Civil Procedure) Rules. Section 78 of CAMA provides……. Also Order 7 Rule 9 of the rules of the lower Court

provides…….. the Supreme Court in Mark vs. Eke (supra) per Musdapher JSC made it clear that by the combined provisions of Section 78 of CAMA and Order 7 Rule 9 of the Lagos High Court (Civil Procedure) Rules, there cannot be substituted service on a Company. This is because the need for substituted service arises because personal service cannot be affected on natural or juristic persons, the procedure for substituted service cannot be made to a Corporation, Company. I agree in the circumstance that the order for substituted service on the 1st defendant must be set aside as erroneous. After all the registered office of a company is a matter of public record easily ascertained by the claimant who wish to effect service”. See also Ben Thomas Hotel Ltd vs. Sebi Furniture Ltd (1989) 5 NWLR (pt. 123) 523.
The fate of the present substituted service on the appellant cannot be any different. This is more so, for whereas the appellants head office is located at Oshogbo, the Osun State Capital, the respondents pasted the processes on the land in dispute in Lagos Lagos State, which is not any of the advertised place of business of the appellants. My attention has

been drawn to the case of NBC Plc. vs Ubani (supra), which I religiously studied. In its consideration of the issue whether the writ of summons issued and the service thereof on the appellant was proper and in accordance with the relevant law and Court rules, the Supreme Court identified two methods of service on a corporation. Firstly by leaving the same at the office of the corporation, in which case it has to be at the registered or head office of the company, and secondly by giving same to any director, secretary or principal officer not necessarily at the registered or head office, but in a place any of them is found within jurisdiction. The Apex Court continued to state that:
“This latter method has all the features of personal service on a party he is found within jurisdiction.”
I must agree with the appellants that the case of NBC vs. Ubani (supra) though good law on the service of processes on any director, secretary or principal officer of the corporation anywhere any of them can be found within jurisdiction, failed to address the touchy area of whether the originating service on a corporation can be served by substituted means, and to

that extent, the case of Mark vs. Eke (supra) which was not over ruled in the later case, still remains the law on the issue. As to whether the service by substituted means under the Lagos State High Court Rules is competent or not, the decision on same still remains the case of RFG & Anor vs. Skye Bank Plc (supra). Assuming without conceding that the originating processes served on the appellants by substituted means can be said to be proper, can we say the same thing about the pre-trial forms and the hearing notice, said to have been pasted at the fence of the disputed land, and for which none of the directors or principal officers of the appellant owned up as having noticed or seen same? Can we now say that there is evidence of the receipt of the said pre-trial forms, and order of Court to which the hearing notice is said to have been indorsed thereon by the appellants? I do not think so, and to that extent, the purported service of the pre-trial processes by pasting on the wall of the disputed land on a corporation is not tenable. I therefore agree with the learned counsel to the appellant that the failure of the respondent to serve the originating

processes as well as the pre-trial papers and hearing notices as required by law is a fundamental vice, and the lower Court in grave error in holding that the substituted service erroneously granted, satisfied the requirements of Order 7 Rule 9 of the Rules of the Court below. The requirement governing the service of originating processes upon a corporation is regulated by statute, and the cases of CBN vs. A.T and B.S Ltd (2010) 9 NWLR (pt. 1200) 567 and Ezomo vs. Oyakhire (1985) 1 NWLR (pt. 2) 195, are with respects inapplicable.

The clear position of the law recently exposed is that, the law is trite and well established on the fact that service of originating process or hearing notice constitutes the foundation on which the whole structure of litigation or appeal is built, and in its absence the entire proceedings will be rendered void and any decision reached thereon a nullity. Such is the fate of the suit before the lower Court. For this singular reason the lower Court ought to have acceded to the applicant’s prayer setting aside its judgment which was a nullity in the first place. Having reached this far, it is unnecessary delving into the other

issues agitated upon, since the lower Court lacked the jurisdiction to proceed the way it did. I see merit therefore in this appeal and it is hereby allowed. The decision of the lower Court refusing to set aside its decision of the 17th April, 2008, which decision is a nullity is hereby set aside.

Its absence the entire proceedings will be rendered void and any decision reached thereon a nullity. Such is the fate of the suit before the lower Court. For this singular reason the lower Court ought to have acceded to the applicant’s prayer setting aside its judgment which was a nullity in the first place. Having reached this far, it is unnecessary delving into the other issues agitated upon, since the lower Court lacked the jurisdiction to proceed the way it did. I see merit therefore in this appeal and it is hereby allowed. The decision of the lower Court refusing to set aside its decision of the 17th April, 2008, which decision is a nullity is hereby set aside and consequentially, the judgment in suit no. ID/724/2009 before the lower Court is also set aside.
I make no order as to costs.
Appeal Allowed.

MOJEED ADEKUNLE OWOADE, J.C.A.:

I read in advance the Judgment read by my learned brother HAMMA AKAWU BARKA, JCA.

I agree with the reasoning and conclusion and I abide with the consequential order as well as the order as to costs.

CHIDI NWAOMA UWA, J.C.A.: I read before now the comprehensive judgment of my learned brother, HAMMA AKAWU BARKA, JCA.

I agree with his reasoning and conclusion arrived at in allowing the appeal. I abide by the order made as to costs in the leading judgment.

Appearances:

Olaniran Obele with him, Paul Mgbeoma and Aderize AlaoFor Appellant(s)

Ayo Adesanmi with him, Omilade Adeyemi and Olajide SalamiFor Respondent(s)

Appearances

Olaniran Obele with him, Paul Mgbeoma and Aderize AlaoFor Appellant

AND

Ayo Adesanmi with him, Omilade Adeyemi and Olajide SalamiFor Respondent

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