AMBASSADOR EMMANUEL OTIOTIO v. SSA D INTEGRATED CONCEPTS LIMITED
(2019)LCN/12725(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of February, 2019
CA/PH/192/2015
RATIO
APPEAL: WHETHER THE COURT OF APPEAL CAN SET ASIDE THE DECISION OF THE LOWER COURT
“The settled position of the law is that the Court of Appeal will not set aside a discretion that has been judicially and judiciously exercised by the lower Court that has not been arbitrary or based on extraneous or irrelevant factors. See ADEJUMO VS. AYANTEGBE (1989) 3 NWLR (PT. 110) 417. It is of course well established that an appellate Court will not as a matter of principle interfere with a properly exercised discretion of the lower Court. See JOSIAH CORNELIUS LTD VS EZENWA (2002) 16 NWLR (PT.793) 293; FHA VS ABOSEDE (1998) 2 NWLR (PT. 537) 177.
Based on my consideration, I resolve this issue against the Appellant.” PER ISAIAH OLUFEMI AKEJU, J.C.A.
INTERPRETATION: MEANING OF ‘MISCARRIAGE OF JUSTICE’
“A miscarriage of justice according to the Black’s Law Dictionary, Seventh Edition at page 1013 is a grossly unfair outcome in a judicial proceeding. Narrating the scenario at page 89 of the record of appeal, the learned trial judge stated that; ‘Though the Defendant claims that the House allegedly owned by the Defendant where the processes is not his (sic) it is apparent that he eventually by the pasting of the processes became notified of the suit hence his counsel filed a notice of conditional appearance. Having been eventually notified of the suit, the order of substituted service served its purpose. It will therefore be absurd if this Court sets aside the said process which has enabled the Defendant to be aware of the suit against him.'” PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
AMBASSADOR EMMANUEL OTIOTIO Appellant(s)
AND
SSA D FNTEGRATED CONCEPTS LTD Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the High Court of Bayelsa State, contained in the Ruling delivered on 8/7/14 in suit No. YHC/221/2013. The Respondent as the claimant initiated the action for the following reliefs against the Appellant as the Defendant;
1. A declaration of title over all that piece of land measuring 17644090 square meters (4 plots) bounded by survey beacon Nos. SC/BYA5395; SC BY5396; SC/BY34149; SC/BY 44148; SC/BYA5397 and SC/BY A5398 lying and situating at Mbiana/Yenagoa (Melford Okilo) Yenigwe-Epie, Yenagoa (i.e. the land in dispute).
2. The sum of N62,907,209.00 (Sixty Two Million, Nine Hundred and seven Thousand, One Hundred and Nine Naira) as special, general and punitive damages for trespass.
3. An order of perpetual injunction restraining the Defendant agents and/or servants from further acts of trespass in the land in dispute.
4. An order on the Defendant to remove from the land in dispute the fence erected by him.
The Writ of Summons was filed on 25/11/13 with the Statement of Claim and other accompanying processes.
Meanwhile by the motion Exparte file on 13/2/14, the Respondent prayed for order of Court thus;
“1. An Order of substituted service of the Writ of Summons and all other Court processes in this case, i.e. suit No. YHC/22/2013 by pasting the Writ of Summons and all other Court processes in this suit on the door of the Defendant’s last known address at Okaka Housing Estate, Okaka-Epie in Yenagoa Local Government Area of Bayelsa State.”
The motion exparte of the Respondent seeking the above order was as a result of the Respondent’s inability to serve the Writ of Summons and other Court processes through the Court bailiff on the (appellant) defendant. The Court granted the order for substituted service of the originating processes and they were accordingly served through a bailiff of the lower Court who deposed to the affidavit of service.
The Appellant subsequently entered conditional appearance and filed a Motion on Notice seeking the setting aside of the issuance and service of the Writ of Summons and other originating processes in the suit on the defendant as same was grossly incompetent; an order setting aside the Exparte Order made in the suit granting leave to serve Court processes on the defendant at Okaka Housing Estate. The Appellant sought in the alternative an order for extension of time to file his statement of defence, counter claim and other Court processes out of time.
The Respondents filed a Counter affidavit in opposition to the motion of the Appellant and also filed a written address while the Appellant filed a Further Affidavit, all of which were adopted before the lower Court gave its ruling now on appeal. The lower Court (or trial Court) refused the first two prayers but granted extension of time to file statement of Defence.
Following the leave granted to the Appellant by this Court, the Notice of Appeal dated 19/2/15 was filed on the same date and predicated same on two grounds of appeal. In the Appellant?s Brief filed on 15/5/17 but deemed filed on 16/5/17, Godfrey Otitotio Esq. of counsel who authored it set down two issues for determination;
1. Whether the Trial Court properly exercised discretion in refusing to set aside the issuance and service of the Writ of Summons and other originating processes and proceedings of the trial Court as prayed for by the Appellant in his application dated and filed on the 6th day of May, 2014.
2. Whether the decision of the Trial Court that its Exparte Order and pasting of the Court Processes at the address purporting to be that of the Appellant enabled the Appellant to know of the pendency of the suit No. YHC/221/2012, SSA’D INTERGRATED CONCEPTS LTD VS AMBASSADOR EMMANUEL OTIOTIO, amounted on to misdirection and same occasioned miscarriage of justice and should be set aside.
The Respondent distilled the following two issues for determination.
1. Whether in view of the facts that the address for service on the writ and in the Application for substituted service was within the jurisdiction of the trial Court, the order for substituted service was properly made by the lower Court.
2. Whether the trial Court having considered the Alternative prayers in the Appellants Application was not right to have granted the alternative prayer.
The Briefs were adopted and relied upon at the hearing of the appeal and the respective parties urged that the appeal be allowed or dismissed as prayed in the Brief.
The two issues formulated by the Appellant are adopted for consideration and determination of the appeal.
The Appellant’s argument on issue No.1 is that the lower Court did not properly exercise its discretion in the consideration of the issues of jurisdiction raised by the Appellant. According to learned counsel, Section 97 of the Sheriffs and Civil Process Act provides that writ of summons to be served out of the State or Capital Territory of its issuance must be endorsed that it is to be served out of the state and failure to do so renders the process incurable defective and incompetent. It was contended that the Writ in the instant case was for service on the defendant who resided at the Federal Capital Territory but was not endorsed as required by Section 97 of Sheriffs And Civil Process Act, it was submitted that failure to endorse a writ of summons meant for service outside the State where it is to be served renders the Writ defective and incompetent; PURECHEM INDUSTRIES LTD VS. SPICA SHIPPING CO. LTD (2012) 3 NWLR (PT.1287) 327. It was further submitted that failure to comply with Section 97 of the Sheriffs And Civil Process Act is fundamental and not a mere irregularity; Owners of ‘MV ARABELLA’ VS NAIC (2008) 11 NWLR (PT. 1097) 182; BELLO VS NBN LTD (1992) 6 NWLR (PT. 246) 206; VATSA VS FIRST BANK OF NIGERIA PLC (2012) 2 NWLR (PT. 1283)1; DENR LTD VS TRANS INT?L BANK LTD (2008) 18 NWLR (PT. 119) 399.
On his first issue, the learned counsel for the Respondent submitted that the essence of service of processes is to ensure that the party is put on Notice of the pending litigation, and failure to give Notice of the proceeding to an opposing party in a case where service is required is a fundamental omission which renders the proceedings void for lack of jurisdiction by the Court; MAKO VS UMOH (2010) 8 NWLR (PT. 1195) P.82; MARK v. EKE (2004) 5 NWLR (PT. 865) 54.
It was submitted also that any defect in the process of service is fatal to the proceedings but a defendant may waive his right to personal service if he is aware of the pendency of the case and decides to take steps therein,MGF NIG. LTD. VS GWUS INTERNATIONAL LTD (2001) 9 NWLR (PT. 718) 413; MADUKOLU VS NKEMDILIM (1962) 2 SCLR 341; NWABUEZE VS OKOYE (1988) 4 NWLR (PT. 91) 664.
It was submitted that there cannot be a better proof of service than the physical presence of the party and so where the party to be served appears in Court, it is unnecessary to insist on proof of service. REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA VS JOHN ETIM (2017) 1 SCNJ 452.
It was submitted that the application of this nature is not granted as a matter of course but upon the exercise of discretion by the Court; WILLIAMS VS. HOPE RISING (1982) 1- 2 SC 70; MANA VS PDP (2012) 13 NWLR (PT. 1318) 579. It was submitted that the learned trial Judge was right to presume that the Appellant had been served and did not reside in Abuja as there was no evidence.
On issue of compliance with Section 97 of Sheriff And Civil Process Act, it was contended that since the writ was for service in Yenagoa, there is no need for further endorsement.
By the affidavit of the Appellant in support of the Motion Exparte filed for substituted service of the writ and other processes issued in commencement of this action, they were meant for service at Okaka Housing Estate, Okaka-Epie in Yenagoa Local Government Area of Bayelsa State and not outside the State.
The deposition of Gbeneowei Esq., a legal practitioner in support of the motion exparte for the order for substituted service of the originating processes is copied at pages 43 – 44 of the record of appeal and it contains the following depositions in paragraphs 4,5,6 and 7 thereof;
4. That I am aware that the registrar of the Court assigned the writ of summons attached with affidavit of verification statement of claim, list of documents to be relied upon by the claimant. List of witnesses and written witness depositions on oath in this case to a chief bailiff of this Court in the Deputy Sheriff’s Office, High Court of Justice by name Mr. Kaka Ebinimini sometimes on the 28th of November, 2013.
5. The said bailiff informed me on the 3rd day of February, 2014 at about 4:00PM and I verily believe him that:
a. He had severally attempted to serve the writ of summons and all other Court processes in this case on the defendant personally at his last address at Okaka Housing Estate, Okaka-Epie in Yenagoa Local Government Area of Bayelsa State without success.
b. He has deposed to an affidavit of non-service to explain his inability to effect personal service of the above mentioned Court processes in this case to the defendant.
6. The said Chief bailiff handed a copy of the affidavit of non-service to me and the same is hereby attached and marked as exhibit A.
7. I know as a fact that the only way to bring the Writ of Summons and other Court processes in the suit to the attention or knowledge or notice of the Defendant is by substituted service by pasting the said Court processes on the door of the Defendants’ last known address at Okaka Housing Estate, Okaka-Epie in Yengoa Local Government Area of Bayelsa State.
Now Order 7 Rule 4 of Bayelsa State High Court (Civil Procedure) Rules provides for substituted service thus:
4. Where personal service of a process is required by these Rules or otherwise and a Judge is satisfied that prompt personal service cannot be effected, the Judge may upon application by the party desirous of effecting service make such order for substituted service as may seem just.
It is abundantly clear therefore that under the Bayelsa State High Court (Civil Procedure) Rules, there is adequate provision for a party to resort to substituted service of originating processes where it has become apparent that personal service could not be effected. In the case under consideration there is nothing on the writ of summons or any process for substituted service that indicates that service was to be effected anywhere outside Bayelsa State and although the said Section 97 of Sheriff And Civil process Act is mandatory where the writ of summons is for the service out of the State in which it was issued, I do not find that provisions to be relevant in this case where it was shown that the processes are for service within Yenagoa Bayelsa State.
Order 7 Rule 4 of Bayelsa State High Court (Civil Procedure) Rules gives the Judge a discretion as to the grant or refusal of application for substituted service. An exercise of discretion as held by our apex Court in the case of THE OWNERS OF THE M.V. LUPEX VS. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LIMITED (2003) 15 NWLR (PT. 844) 469 is a liberty or privilege to decide in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the principles of law. Upon my clear understanding at the decision of the lower Court in granting the application for substituted service was based on a proper exercise of its discretion, it follows that the invitation to set the order aside was properly resisted and rejected.
The settled position of the law is that the Court of Appeal will not set aside a discretion that has been judicially and judiciously exercised by the lower Court that has not been arbitrary or based on extraneous or irrelevant factors. See ADEJUMO VS. AYANTEGBE (1989) 3 NWLR (PT. 110) 417. It is of course well established that an appellate Court will not as a matter of principle interfere with a properly exercised discretion of the lower Court. See JOSIAH CORNELIUS LTD VS EZENWA (2002) 16 NWLR (PT.793) 293; FHA VS ABOSEDE (1998) 2 NWLR (PT. 537) 177.
Based on my consideration, I resolve this issue against the Appellant.
Issue No. 2 in the Appellants Brief is about the decision of the trial Court with respect to its Exparte order for pasting of the Court processes at the address purported to be that of the Appellant to know about the pendency of the action and whether it occasioned a miscarriage of justice.
A miscarriage of justice according to the Black’s Law Dictionary, Seventh Edition at page 1013 is a grossly unfair outcome in a judicial proceeding. Narrating the scenario at page 89 of the record of appeal, the learned trial judge stated that;
‘Though the Defendant claims that the House allegedly owned by the Defendant where the processes is not his (sic) it is apparent that he eventually by the pasting of the processes became notified of the suit hence his counsel filed a notice of conditional appearance. Having been eventually notified of the suit, the order of substituted service served its purpose. It will therefore be absurd if this Court sets aside the said process which has enabled the Defendant to be aware of the suit against him.’
The essence, purpose and effect of service of originating processes of Court is to adequately notify the Defendant of the existence of the suit and the claim against him. And to resist same if he so wishes. See HARUNA VS. LADEINDE (1987) 4 NWLR (PT. 67) 941.
I find no substance in this issue and I resolve same against the Appellant.
I should state that I read the Appellant’s Reply Brief and I believe that it does not contain any fresh argument arising from any new issue. It rather amounts to a re-argument of the appeal. I therefore discountenance the Reply Brief.
Based on my consideration of the issues in this appeal and their resolution against the Appellant, the appeal lacks merit and it is dismissed.
I make no order as to costs.
MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading before now the lead Judgment just delivered by my Learned brother Hon. Justice ISAIAH OLUFEMI AKEJU JCA.
I agree that the appeal lacks merit and it is hereby dismissed. I also abide by all consequential order in this appeal.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in advance a draft copy of the judgment just read by my learned brother I.O Akeju, JCA. I agree with the reasoning and conclusion and I too dismiss this appeal as lacking in merit. I abide by all the consequential orders.
Appearances:
Godfrey D. Otiotio with him, DiepretenuFor Appellant(s)
Woyengifie with him, A. V. Olotu and Victor D. GbeneoneFor Respondent(s)
