GITTO CONSTRUCZION GENERALI v. EMMANUEL SIMON UDOITUEN (2019)

GITTO CONSTRUCZION GENERALI v. EMMANUEL SIMON UDOITUEN

(2019)LCN/13603(CA)

In The Court of Appeal of Nigeria

On Monday, the 1st day of July, 2019

CA/C/298/2018

JUSTICES

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

GITTO CONSTRUCZION GENERALI Appellant(s)

AND

EMMANUEL SIMON UDOITUEN Respondent(s)

RATIO

WHETHER OR NOT GROUNDS OF APPEAL ARISING FROM A INTERLOCUTORY DECISION ARE GROUNDS OF FACT, GROUNDS OF MIXED LAW AND FACT WHICH REQUIRES LEAVE OF COURT TO APPEAL

The law is settled that where the grounds of appeal arising from an interlocutory decision are grounds of fact; grounds of mixed law and fact, the appellant needs leave of Court to appeal. The only exception is where the grounds raise questions of law. This is covered by Section 242(1) of the Constitution which is subject to Section 241(1) which listed situations a party has a right of appeal without leave. PER NIMPAR, J.C.A.

WHETHER OR NOT WHERE FAILURE TO SEEK LEAVE DIVEST THE COURT OF ITS JURISDICTION

It is trite that where leave is required it becomes a condition precedent and failure to seek and obtain leave divest the Court of jurisdiction, see ABDUL VS. CPC (2013) LPELR-20597 (SC) which held as follows: “Where leave to appeal is required or is a condition precedent, failure to seek such leave robs the Court of jurisdiction to adjudicate on the matter. See METAL CONSTRUCTION (WEST AFRICA) LTD. VS. MIGLIORE (1990) 1 NWLR (PT 126) 299; OLUWOLE VS. LSDC (1983) 5 SC 1; FALEYE VS.OTAPO (1987) 4 NWLR (PT 64) 186.”
However, where the ground of appeal is challenging jurisdiction, it is in a class of its own, little wonder that leave is not required as held in the case of IKPEKPE VS. WARRI REFINERY & PETROCHEMICAL CO. LTD. & ANOR. (2013) LPELR-44471 (SC) as follows:
“The issue of jurisdiction is no doubt not just an issue of law, it is a substantial issue of law. Appeal on it is therefore one of law which the Appellant, in an appeal from the Court below to the Appellate Court does not need leave first sought and obtained to appeal on. Ground two, against which the Respondent halfheartedly directed his objection also raises a question of law alone. It therefore does not need leave of Court to be brought.” PER NIMPAR, J.C.A.

WHETHER OR NOT SERVICE OF ORIGINATING PROCESS IS A PRECONDITION FOR A COURT’S JURISDICTION

It is trite and beyond citing of authorities that service of originating processes is a precondition to the invocation of the Court?s jurisdiction, the apex Court had this to say:
“I agree with the learned counsel for the appellant that generally the service of process is sine qua non for an effective adjudication of a case. The service on the defendant is to enable him appear to defend the relief being sought against him. Personal appearance by a party or his counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This accords with the principles of justice and fair hearing enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).? See ARIYEFA NWAOSU VS. IBEJIUBA NWAOSU (2000) 4 NWLR PT (653) 359. PER NIMPAR, J.C.A.

WHETHER OR NOT IMPROPER SERVICE DIVESTS THE COURT OF JURISIDCTION

Improper service divests the Court of jurisdiction. See MATAHOR & ANOR. VS. IBARAKUNYE (2017) LPELR-43346 (CA), it held:
“Having regard to the facts of this case, as fully set out and demonstrated in the leading judgment, the effect of the improper service complained of is the same as that of non-service. It should be borne in mind always that the effect of non-service, where service is required, is that the Court is deprived or divested of its competence and jurisdiction to entertain the cause or matter. See Mohammed Mari-Kida vs. A.D. Ogunmola (2006) 13 NWLR (Pt.997) 377 at 396, per Katsina-Alu, JSC (as he then was) and United Bank for Africa Plc vs. Magama (Nig.) Ltd. & Anor. (2013) 16 NWLR (Pt.1379) 36 at 55, per Iyizoba, JCA.”PER NIMPAR, J.C.A.

WHETHER OR NOT A COURT HAS THE UNFETTERED RIGHT TO LOOK INTO ITS RECORD TO MAKE USE OF MATERIALS FOUND THEREIN TO DECIDE A MATTER

A Court has the unfettered right to look into its record to make use of materials found there in to decide a matter, see PDP & ORS. VS. EZEONWUKA & ANOR. (2017) LPELR- 42563 (SC) wherein the apex Court said:
“The law is that in order to do substantial justice between the parties, the Court is entitled to look at its file or record and make use of the contents. See:Fumudoh vs Aboro (1991) 9 NWLR (Pt. 214) 210 @ 229 E; Agbareh vs Mimra (2008) 2 NWLR (Pt.1071) 378 @ 411-412 H-C; Funduk Eng. Ltd. Vs McArthur (supra); Womiloju vs Anibire (2010) 10 NWLR (Pt. 1203) 545 @ 561 G. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):? This appeal is against the Ruling of the High Court of Justice of Akwa Ibom sitting at Eket, Coram: Hon. Justice Eno K. Isangedighi delivered on the 27th March, 2018 wherein the Court below dismissed an application filed by the Appellant seeking to set aside the proceedings of the court on the ground that it was not properly served with the initiating processes. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on the 10th April, 2018 setting out 3 grounds of appeal.

Facts leading to the appeal are simple and straight forward. The Respondent took out a writ of summons against the Appellant and claimed the following reliefs:
i. A DECLARATION that the Defendant trespassed into the land of the Plaintiff known as and called ?Akai Okpo? which is situate along Eket-IkotAbasi Road, NdionEyo Village, ONNA Local Government Area and particularly delineated and verged ?red? in the survey Plan of the land NO. JEJ/AK/31840 (CA) measuring 1521.112 square meters attached hereto.
ii. Payment of the sum of N40,800,000.00 (Forty

Million Eight Hundred Thousand Naira) only as compensation for the damage of the Plaintiff?s parcel of land as per the valuation Report of the property damaged by the Gitto Construction Generali Nig ltd.
iii. General damages for Trespass =N30,000,000.

The originating processes were purportedly served on the Appellant by means of courier service. The Court after the time allowed the Defendant and without any appearance proceeded to hear the claim, until the Appellant who was served with an application for judgment showed up to contest that it was not lawfully served. The application to set aside the service was dismissed by the Court below on the ground that there was proof of service on the record and that led to this appeal.

The Appellant?s Brief settled by IKANI AGABI (PHD) is dated 19th day of November, 2018 filed on the 23rd November, 2018 and deemed on the 7th March, 2019 it formulated 3 issues for determination as follows:
a. Whether the trial Court Judge was right in holding that Appellant had been served with the Originating process?
b. Whether the learned trial Judge erred in law when he failed to act on the

facts deposed to in the Appellant?s affidavit in the absence of any counter affidavit by the Respondent?
c. Whether the learned trial Judge was right when he ordered the Appellant to execute service of the originating process on itself.

The Respondent?s brief settled by VICTOR BATTA, ESQ., is dated 6th day of March, 2019 filed on the 9th April, 2019 and it merely reproduced issues distilled by the Appellant in the appeal. The Respondent also incorporated a Preliminary objection in the Respondent?s Brief wherein it challenged the jurisdiction of the Court and raised a sole issue for determination under the preliminary objection thus:
Whether this Honourable Court has the jurisdiction to hear and determine the Appeal.

Proffering arguments on the sole issue, the Respondent argued that the Court lacks jurisdiction to determine the appeal because all the grounds of appeal are on mixed law and fact and defined a question of law as in the cases of IDRIS VS. AGUMAGU (2015) 13 NWLR (PT. 1477) 441 and also C.C.C.T.C.S VS. EKPO (2008) 6 NWLR (PT. 1083) 362. He examined ground one on the notice of appeal and submitted that it is

alleging an error of facts and correctness of ascertained facts, thus a ground of mixed law and facts because service of originating processes is a question of facts and not an error in law, referred to UMANAH JNR VS.NDIC (2016) 7 MJSC (PT. 2) 1.

On ground two and three of the Notice of Appeal, the Respondent contended that the trial Court was asked to exercise discretion and therefore they are questions of mixed law and facts, referred toMETAL CONSTRUCTION LTD. VS. MIGLIORE (1990) NWLR (incomplete citation). Respondent argued that the Court lacks jurisdiction to hear interlocutory appeals on grounds of facts and mixed law and facts without leave first sought and obtained. He urged the Court to strike out the grounds of appeal for offending Section 241(1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria, referred to CHROME AIR SERVICES LTD. VS. FIDELITY BANK (2018) 275 LRCN 32.

He referred to the Notice of Appeal as the bedrock of the appeal and where there is no valid Notice of Appeal it means there is no appeal referredOGBECHIE VS. ONOCHIE (1986) 1 NSSC 443. On the effect of failure to obtain leave to appeal, the Respondent

submitted that it renders the appeal incompetent, relied on IDRIS VS. AGUMAGU (2015) 13 NWLR (PT. 1477) 441. He urged the Court uphold the preliminary objection and strike out the Notice of appeal.

The Appellant responded to the preliminary Objection in its Appellant?s Reply Brief dated 13th May 2019 and settled by CHRIS EKONG ESQ it was filed on the 14th May, 2019 wherein it contended that the issues raised in the Notice of Appeal border on service of originating processes on the Defendant (a company) now Appellant and proper service is a precondition to vesting the Court with jurisdiction. He contended that when it comes to jurisdiction, a party requires no leave of Court to appeal, citingISA VS. INEC (2016) 18 NWLR (PT. 1544) 175 at 249 which held that any ground of appeal which borders on jurisdiction no matter how it is couched will not require leave to appeal. It also referred to AKINYEMI VS. ODU?A INV. CO. LTD. (2012) 17 NWLR (PT. 1329) 209 at 232 which held that a ground of law is capable of 3 different meanings and what a question of fact is considered to be. Relating it to the facts herein, the Appellant submitted that the question

borders on mode of service of originating summons on a company and the correctness of the lower Court?s interpretation of ?letter? on the delivery note ?to mean writ of summons?. It submitted that where the lower Court reaches a conclusion which cannot be reasonably drawn from the facts as found, the appeal Court will assume because there has been a misconception of the law and it is a ground of law. He highlighted what the three grounds of appeal convey. He submitted that ground one questions whether the appellant has been served with the originating processes, the writ of summons when the delivery note reads that it delivered a letter and the judge interpreted it to mean writ of summons. Ground two challenges the refusal of the Court below to use unchallenged facts in the Appellant?s affidavit in support of its application to set aside proceedings and the legal implication of an uncontroverted affidavit. Ground three borders on Appellant?s right to be served with the originating processes and consequently, right to fair hearing. Appellant finally urged the Court to dismiss the preliminary objection for lacking in

merit.

RESOLUTION OF THE PRELIMINARY OBJECTION
The challenge posed by the preliminary objection is a fundamental one because it touches on jurisdiction of the Court to hear the appeal on the ground that the grounds of appeal are of mixed law and fact arising from an interlocutory appeal. The law is settled that where the grounds of appeal arising from an interlocutory decision are grounds of fact; grounds of mixed law and fact, the appellant needs leave of Court to appeal. The only exception is where the grounds raise questions of law. This is covered by Section 242(1) of the Constitution which is subject to Section 241(1) which listed situations a party has a right of appeal without leave.

The ruling appealed against in this appeal is an interlocutory ruling and the grounds of appeal are in contention. The position of the Appellant is that the grounds challenging jurisdiction of the trial Court arising from irregular service of originating processes. When grounds of appeal whether from a final or interlocutory appeal are challenging jurisdiction, then there is no need for leave because jurisdiction is fundamental to any proceedings and a Court must

be initiated by due process to vest it with jurisdiction. It is trite that where leave is required it becomes a condition precedent and failure to seek and obtain leave divest the Court of jurisdiction, see ABDUL VS. CPC (2013) LPELR-20597 (SC) which held as follows:
“Where leave to appeal is required or is a condition precedent, failure to seek such leave robs the Court of jurisdiction to adjudicate on the matter. See METAL CONSTRUCTION (WEST AFRICA) LTD. VS. MIGLIORE (1990) 1 NWLR (PT 126) 299; OLUWOLE VS. LSDC (1983) 5 SC 1; FALEYE VS.OTAPO (1987) 4 NWLR (PT 64) 186.”
However, where the ground of appeal is challenging jurisdiction, it is in a class of its own, little wonder that leave is not required as held in the case of IKPEKPE VS. WARRI REFINERY & PETROCHEMICAL CO. LTD. & ANOR. (2013) LPELR-44471 (SC) as follows:
“The issue of jurisdiction is no doubt not just an issue of law, it is a substantial issue of law. Appeal on it is therefore one of law which the Appellant, in an appeal from the Court below to the Appellate Court does not need leave first sought and obtained to appeal on. Ground two, against which the Respondent

halfheartedly directed his objection also raises a question of law alone. It therefore does not need leave of Court to be brought.”
There are 3 grounds of appeal set out in the Notice of Appeal. Looking carefully at the grounds of appeal, ground one raises a question as to whether there was service of the originating processes as concluded by the Court below. The question of proper service arises here. Ground two questions the propriety and refusal of the Court below to rely and use an uncontroverted affidavit which deposed to facts that the Appellant was not duly served with the originating processes; it is a question of law because it can only be answered by applying settled legal principles. Ground three borders on Appellant?s right to be served according to law and therefore a ground of law. Grounds one and three have jurisdictional implications and therefore no leave is required while ground two is a ground of law. The grounds of appeal named on the notice of appeal therefore do not require leave to appeal as contended by the Respondent. Consequently, the preliminary objection lacks merit and is hereby dismissed.

The Court shall adopt

issues distilled by the Appellant and as argued for resolution in this appeal. They shall be resolved seamlessly.

ISSUE ONE, TWO & THREE
The Appellant submitted that service of originating processes is fundamental and where there is a breach in serving the Defendant as require divest the Court of jurisdiction and any proceedings is a nullity. It argued that their motion to set aside proceedings due to failure to be served properly was dismissed even after the affidavit deposing to facts that it was not served was uncontroverted. It contended that the trial Judge erred in dismissing the application because it lacked jurisdiction to hear the claim when the Defendant was not properly served with the originating processes according to law, moreso being a company, service on it is guided by Section 78 CAMA and Order 7 Rule 9 of Akwa Ibom State Civil Procedure Rules 2010. It relied on MARK VS. EKE (2004) 5 NWLR (PT. 865) (incomplete citation) that failure to serve a company according to law divest the Court of jurisdiction. Furthermore, that substituted service is not applicable to a company since the mode of service by law is already in the form of

substituted service and because personal service is only effected on natural persons not artificial persons.

The Appellant noted that the Respondent did not dispute the facts deposed to state that the Appellant was not served according to law and only became aware of the suit when it was served with a motion for judgment and that means the Respondent admitted the facts. Going into detail, the Appellant submitted that the affidavit also disclosed that the delivery note in the Court?s file was from EMS Courier Service which stated that it was a letter delivered to one Ernest. It submitted that Ernest was not shown to be a director or secretary of the company (the Appellant). Furthermore, that there was no requisite endorsement on the originating summons purportedly served on the Appellant indicating therefore that there was no service. It then contended that the Appellant was not served, therefore the Court below erred in finding that it was served.

Appellant referred to AHMED VS. AHMED (2013) 15 NWLR (PT. 1377) 349 to highlight relevant features in a challenge to the service of a Court process. It further relied on UBA PLC VS. EFFIONG (2012)

ALL FWLR (PT. 634) (incomplete citation) to the effect that in any proceedings that will bring a suit to an end, it is proper that service is personally effected and service on an unnamed secretary is not good service. The Appellant observed that there was no endorsement of service by the bailiff of the Court to confirm service. It admitted that the rules of the Court below allow for service by courier but on a different category of parties not a company, it still challenged the service in this case because the delivery note failed to name the necessary information to confirm that service was duly effected and it referred to OKEKE VS. A.G. ANAMBRA STATE (1997) 9 NWLR (PT. 519) 123 at 149 for the essential details namely: name of bailiff; date of service, Name of person upon whom the process was served; made of service; description of the process served and place of service. The Appellant contended that failure to give essential details vitiates the return made to Court, particularly, the failure to name the particular process served by the courier company is fatal. Learned counsel referred to page 41-42 of the record of appeal where the EMS delivery Note is

found and submitted that the process served was a letter and on one Everest with no description as to who he is in the company. More so, the said letter was addressed to the General Manager of the Appellant. It argued that it was not duly served. Citing FOLARIN VS. AYANRINOLA (2012) ALL FWLR (PT. 632) 1814 on proper service as a precondition to vesting jurisdiction to urge the Court to find for the Appellant under issue one.

On issue two the Appellant submitted that the law is settled that facts in an unchallenged affidavit are deemed admitted and therefore the Court should have acted on same, relied on G.CAPPA PLC VS.NNAEGBINA AND SONS LTD. & ANOR.(2009) LPELR-8349 and MV GONGOLA HOPE & NIGERBRASS SHIPPING LINE LTD. VS.SMURFIT CASE NIG. LTD. & ANOR. (2007) 15 NWLR (PT. 1056) 189 at 215. It further submitted that the affidavit challenging service of originating processes on the Appellant was not contested and the fact that what was served is a letter, means the processes were not served. But that the Court below suo motu held brief for the Respondent when it held that the word letter meant the originating processes. It argued that failure to

serve the process according to law is fatal.

On issue three, the Appellant argued that the apex Court did not suggest that a party should execute the service of a process on itself as there is no such practice anywhere in our legal system and the burden is always on the party who files the process to ensure it is duly served and according to law and therefore it was wrong to put the responsibility on the Appellant. It urged the Court to allow the appeal.

The Respondent in arguing his three issues started with issue one wherein he submitted that the trial judge was right to find that the Appellant was served with the originating summons as found at pages 92 of the record and the Appellant has not shown that the ruling was perverse. He submitted that the Respondent relied on the record of Court to contend that the Appellant was served and in such a case there was no need for a counter affidavit. Furthermore, the Court was entitled to look at its record to decide an issue, referred to CHIEF S.O. AGBAREH & ANOR. VS.DR. ANTHONY MIMRA & ORS. (2008) ALL FWLR (PT. 409) 559 and EDIL CON NIG LTD. VS. UBA PLC (2017) 18 NWLR (PT. 1596) 74 to submit that

there was evidence that the Appellant was served with the processes. On evidence of service, it relied on AGBAISI VS. EBIKOREFE (1997) 4 NWLR (PT. 502) 630. He further argued that a Defendant challenging service must demand that the Court examines the bailiff to take evidence from such but the Appellant failed to do in this case. He submitted that service was duly effected on Appellant?s agent as allowed by Order 7 Rule 13(3) of the Court below which allows service on an agent or servant as good service. He argued that from the record, the courier company complied with the rules and the Appellant was duly served. He urged the Court to find that there was service.

Arguing further the Respondent submitted that a principal is not allowed to deny its agent. That cases cited by the Appellant are not applicable and there is no rules of the Court below made in 2010, therefore Order 7 Rule 9 cited is not of Akwa Ibom State and not applicable. Furthermore, that the Appellant did not deny the address upon which service was effected and failed to establish by facts that it was not served. He submitted that the Court cannot just reverse a judgment when no error

has not been established, relied onCHIEF IKEDI OHAKIM & ANOR. VS. CHIEF MARTIN AGBASO & ORS. (2010) 189 LRCN 73 to submit that the findings of the trial Court were not perverse, he listed the grounds on which a decision can interfere with by the Appellate Court.

On issue two, the Respondent submitted that it is not every application that is grantable in the absence of a counter affidavit because the Court has a discretion in the matter while the applicant has a duty to establish his application. He relied on POPOOLA VS. BABATUNDE (2012) NWLR (PT. 1299) 302 (CA). He submitted that Appellant?s issue two and arguments are misconceived because the Respondent in opposing the application relied on points of law because there was proof of service in the Court?s file and the Court can look into its file to resolve an issue. He contended that the reasons advanced are not good enough to warrant granting the application. He argued that even where documents in the file are not brought to the attention of the judge, the judge can still look into such to decide an application.
?
Respondent argued that the alleged absence of evidence or proof of

service is also misconceived because the record of the Court serves as a guide in establishing proof of service and it indicates that the Appellant was served in this case, therefore the Court cannot interfere with the exercise of discretion, relied on BEST (NIG.) LTD. VS. A.G. RIVERS (2008) ALL FWLR (PT. 4170) 1 to urge the Court not to interfere with the findings of the trial Court.

On issue three the Respondent submitted that the Court below found that there was proof that the Appellant was served and the Court below reiterated the essence of service which is to bring to the notice of the party sought to be served the pending proceedings, then the judge asked the Appellant to get copies of processes in the file for it to participate in the matter and the order did not amount to asking the Appellant to execute service upon itself, it was a mere remark. He further submitted that what the Court said was not an order because it was not drawn up. He contended that the grouse of the Appellant amounts to technicality, and adherence to technicalities will lead to injustice, therefore the Court should discountenanced the submission of the Appellant on this

issue, relied on KLM ROYAL DUTCH AIRLINES VS. ALOMA (2017) 274 LRCN 1. On the applicability of the rules of court, the Respondent submitted that they are meant to be obeyed, to aid the Court in doing justice as held in U.T.C. VS. PAMOTEI (1989) 2 NWLR (PT. 103) 350. He submitted that the Appellant did not suffer any miscarriage of justice.

In rounding up, the Respondent still reiterated the fact that there was proof of service before the Court and the Court was right to find that the Appellant was served. Finally urged the Court to dismiss the appeal and reaffirm the ruling of the trial Court.

RESOLUTION
The contention in this appeal is centered on the Appellant?s denial that it was served with the originating processes. It is trite and beyond citing of authorities that service of originating processes is a precondition to the invocation of the Court?s jurisdiction, the apex Court had this to say:
“I agree with the learned counsel for the appellant that generally the service of process is sine qua non for an effective adjudication of a case. The service on the defendant is to enable him appear to defend the relief being sought

against him. Personal appearance by a party or his counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This accords with the principles of justice and fair hearing enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).? See ARIYEFA NWAOSU VS. IBEJIUBA NWAOSU (2000) 4 NWLR PT (653) 359.

The service in issue here is meant to be effected on the Appellant, a company whose address for service is in Abuja and to be effected on the General Manager of the Appellant. The contention of the Appellant is that service was effected contrary to the provisions of the Company and Allied Matters Act and the rules of Court because service was effected by courier which they admit is allowed by the rules of Court but for a different class of parties not the Appellant. The service in this case was effected on one Everest who is unknown, not shown to be a staff, director or company secretary and not even the General manager named on the process as the person to be served. More so, the process served was stated to be a letter on the return of serviceship,

furthermore, the endorsement copy to show proof of service was left uncompleted in the Court?s file, not having necessary details to verify how service was effected and on whom. It is not disputed that MARK VS. EKE (supra) settled the vexed issue of whether service on a company can be by substituted means, it held thus:
“The need for substituted service arises because personal service cannot be effected and since personal service can only be effected on natural or juristic persons, the procedure for substituted service cannot be made to a corporation like the 2nd Appellant herein. -Sloman vs. Government of New Zealand (1875) 1CPD 563; Hillyard vs. Smyth (1889)36 WR 7.”
It is inherent in the nature of companies that humans act for the company and the various officers listed by the rules of the Court below are deemed to have sufficient authority to receive service on behalf of the company, these are director, secretary, trustee or other senior, principal or responsible officer or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction, see Order 7 Rule 9 (1) of the Rules of the Court below.

The Company and Allied Matters Act require that processes be served on a company by leaving it at, or sending it by post to the registered office of the company. The service effected by EMS courier meant for the General Manager was effected on one Everest, it is substituted service and on the wrong person. The point made by the Appellant is, who is Everest? Secondly, there was no affidavit of service detailing the essential particulars of how the service was effected and what was served. In fact, in a situation where service is not being effected on any of the officers of the company named in the rules, CAMA defers to the rules of Court and the rules here allows leaving the processes at the place of business of the company in addition to serving the named officers and leaving it at the place of business means serving other than on those named but on some other at the place of business in which case, the party serving does not need to name any body but it must be duly acknowledged by the person receiving with required endorsement done, see COTTON & AGRIC PROCESSORS LTD. VS. DG ITF 2015 (LPELR-40878(CA) which explained service on a company

thus:
“Now, the Appellant did not contest or deny that the address where the bailiff stated that service was carried out was its registered office or principal place of business. In Ranco Trading Company Ltd v. Union Bank of Nigeria Ltd (1998) 4 NWLR (Pt 547) 566 and in Nigerian Agricultural & Cooperative Bank Ltd v. Ono Foods Development Company (Nig) Ltd (2006) 9 NWLR (Pt 985) 323, the Court of Appeal stated that service of process by leaving it at the office of the company is done when the process is handed in at that office and its receipt is duly acknowledged by anyone ostensibly authorized to receive documents in that office. Similar stance was taken by the Court of Appeal in International Bank for West Africa vs. Sasegbon (2007) 16 NWLR (Pt 1059) 195. In Multichem Industries Ltd. vs. Musa (2013) 8 NWLR (Pt 1356) 404, it was stated that receipt of such processes by a person described as a receptionist was proper service. In Ben Thomas Hotel Ltd. vs. Sebi Furniture Co. Ltd. (1989) 3 NSCC 416, the Supreme Court, in considering the import of service of processes on a company by leaving it at the office of the company, quoted with approval the

following statement of Akpabio, JCA in judgment of the Court of Appeal appealed against: “In resolving this question, I must agree with the submission of learned counsel for the respondent that the answer to this question must be looked for within the four walls of Order 5 Rule 8 (2) of the High Court (Civil Procedure) Rules of Kwara State, 1975,and nowhere else. Under that rule, there is no provision for the writ or other document to be delivered to a named official of the defendant company. It is merely to be left at the registered office of the defendant company and no more. There was no suggestion by the learned counsel for the Appellant that the address Kabba-Ajaokuta New Road, Kabba, Kwara State, which appeared on the writ of Summons was not the ‘registered office’ of the Defendant/Appellant. In my view, once the writ of summons has been shown to have been left in the premises of the registered office of the appellant, the provisions of Order 5 Rule 8 (2) have been complied with even though the name of the official of the Appellant company to whom the document was delivered was not stated.”?
The said Everest who received service was not described so

as to know whether he is a staff and no endorsement with his particulars. Furthermore, the Courier Company which served did not endorse nor swore to an affidavit. More so the failure to file an affidavit of service is vitiating enough because that is how service is assessed by a Court of record. An affidavit of service should contain the following:
i. Name of bailiff;
ii. Date of service;
iii. Name of person upon whom the process was served;
iv. Mode of service;
v. Description of process/document served;
vi. Place of service.
See OKEKE VS. A.G. ANAMBRA STATE (1997) 9 NWLR (PT. 519) 123 at 149. The record of appeal presents a self-defeating return slip by the Courier Company, because it named who to served address for service was to be effected on General Manager while one Everest received service of a letter not writ of summons. Furthermore, even though service by courier is allowed under the Rules but not on companies and if it still amounts to service by substituted means on a company because in such situations there is no bailiff to swear to an affidavit to say how the process was served, on whom, when and where. Since

the originating processes in this case named the General Manager, it should have been served on the said General Manager and not on any other person. The argument of the Respondent that the Appellant cannot deny its agent is preposterous and misconceived. The principle of principal and agent does not apply in this situation because certain conditions must be established and they cannot be established unless a Court is properly seized with a matter and have jurisdiction. Improper service divests the Court of jurisdiction. See MATAHOR & ANOR. VS. IBARAKUNYE (2017) LPELR-43346 (CA), it held:
“Having regard to the facts of this case, as fully set out and demonstrated in the leading judgment, the effect of the improper service complained of is the same as that of non-service. It should be borne in mind always that the effect of non-service, where service is required, is that the Court is deprived or divested of its competence and jurisdiction to entertain the cause or matter. See Mohammed Mari-Kida vs. A.D. Ogunmola (2006) 13 NWLR (Pt.997) 377 at 396, per Katsina-Alu, JSC (as he then was) and United Bank for Africa Plc vs. Magama (Nig.) Ltd. & Anor.

(2013) 16 NWLR (Pt.1379) 36 at 55, per Iyizoba, JCA.” Furthermore, the need to establish or prove miscarriage of justice or that the ruling affirming service is inapplicable here because failure to service according to law breaches the right to fair hearing of a party and that is more fundamental than the need to establish miscarriage of justice, that alone is a gargantuan miscarriage of justice.
I agree with the Appellant that service effected was not according to law, there were too many flaws, there was no endorsement, no affidavit of service and service was effected by substituted means, it being a company. Service on a company is regulated and delicate, trial Courts should take time to scrutinize proof of service to be sure it reflects proper service before taking any step in the matter. It will save time and resources of parties who have to ensure processes are duly served. See ANI & ORS. VS. EFFIOK (2011) LPELR-4831(CA) which held:
“The law and practice are settled for all times, that it is the bounden duty of a Court to confirm and/or verify, that there is proper proof of service of the relevant Court process on the other party who

may be affected by the outcome of a proceeding before the Court. Thus, where a party was neither present in Court nor represented by a counsel, the Court should not rely simply on the viva voce statement by its registrar, that there was service of the requisite Court process. Rather, the Court itself, should examine the proof of service which must be placed before it, in order to determine and satisfactorily too that the process was actually served and the particular person who was served, with what and when the said service was effected. Importantly, the conduct of all these steps should be borne out by the trial Court’s record of proceedings. See F. B. N. Plc vs. T. S. A. Industries Ltd. (2010) 15 NWLR (pt. 1216) 247.”
On whether the Court should have acted on the uncontradicted affidavit in support, the law is settled that facts deposed to in affidavit if uncontradicted are deemed admitted. See INEGBEDION VS. SELO-OJEMEN (2013) LPELR-19769 (SC) which held:
“It is trite law that any unchallenged and uncontradicted fact in an affidavit remains undisputed and is deemed admitted by the adversary and the Court will so hold. However, it is also the law

that any such unchallenged and uncontradicted facts which are deemed admitted in the affidavit must be capable of proving and supporting the applicant relying on such facts. In other words, it has been held that the affidavit evidence which is said to be unchallenged must necessarily be cogent and strong enough to sustain the case of the applicant. See; Ogoejeofo vs. Ogoejeofo (2006) 1 SCM 113, Alagbevs. Abimbola (1978) 2 SC 39 at 40, Egbuna vs. Egbuna (1989) 2 NWLR (Pt.106) 773 at 777.” The Respondent argued that they opposed the application on points of law. It is trite that a party can decide whether to challenge the facts deposed to in an affidavit or concede to the facts and use law to defeat the application. It is however, not in every application that law can defeat facts and that is where facts are relevant. The question of proper service on a company can only be determined on facts and facts can only come in by way of affidavit when service is challenged. The contention that the Appellant failed to call the bailiff and therefore failed to establish non service is irrelevant where no affidavit was filed by the bailiff and that is one reason why

service on a company ought not to be by courier service because in that case it is a return slip and not an affidavit of service. A Court has the unfettered right to look into its record to make use of materials found there in to decide a matter, see PDP & ORS. VS. EZEONWUKA & ANOR. (2017) LPELR- 42563 (SC) wherein the apex Court said:
“The law is that in order to do substantial justice between the parties, the Court is entitled to look at its file or record and make use of the contents. See:Fumudoh vs Aboro (1991) 9 NWLR (Pt. 214) 210 @ 229 E; Agbareh vs Mimra (2008) 2 NWLR (Pt.1071) 378 @ 411-412 H-C; Funduk Eng. Ltd. Vs McArthur (supra); Womiloju vs Anibire (2010) 10 NWLR (Pt. 1203) 545 @ 561 G.?
In this situation, the materials discovered by the trial judge were faulty and defective; they were generated by a faulty and unlawful step and therefore cannot help the Court below in taking the right decisions. Furthermore, the return slip indicated that it was a letter that was delivered. A letter cannot be synonymous to a writ of summons, another reason not to serve Court processes by those who cannot swear to an affidavit and

name processes correctly. If an affidavit was sworn to by a bailiff the situation couldn?t have been unclear. The Court has no power to read or infer into a document what the document did not say, as said by the Court in IKEMEFUNA & ORS. VS. ILONDIOR (2018) LPELR- 44840(CA) thus:
“It is a settled principle of law that a document speaks for itself and one cannot read into a document what is not therein contained.”
The retune by the courtier company said it was a letter delivered and the Court cannot on its own infer that it was the writ of summons that was served, again this is where the need to file a counter affidavit could have helped the Court. The Respondent could have given information received from the bailiff or the relevant offices of Court who packaged the processes for the courier company. That would have given credence to the documents actually delivered.
Did the Court order the Appellant to execute service on itself? The Court below having believed the return made by the courier company that it served the Appellant went on to advice the Appellant to get copies of processes purportedly served on it which they were denying. I

agree with the Respondent that it was not an order that the Appellant execute service on itself. It is usually the duty of the party filing processes to ensure they are duly served. I find for the Respondent under issue three. Having resolved issue one and two in favour of the Appellant, the appeal is meritorious, the ruling of the Court below delivered on the 27th March, 2018 is hereby set aside. The purported service on the Appellant was defective and contrary to law and consequently, the service is hereby set aside. The writ remains valid. The Respondent must ensure that the Appellant is property served and according to law. Each party to bear its cost.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in draft, the leading judgment delivered by my learned brother: Yargata Byenchit Nimpar, JCA. I endorse, in toto, the reasoning and conclusion in the well-articulated judgment. I, too, allow the appeal in the terms chronicled in the leading judgment. I abide by the consequential orders decreed in it.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I was privileged to read in advance the draft of the lead

judgment Of my learned brother, Yargata B. Nimpar, JCA, just delivered. I agree entirely with the reasoning and conclusion in allowing the appeal.

The Company and Allied Matters Act by Section 78 makes a provision as to how to serve documents generally or 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 provided must be at the registered office of the company 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 need for substituted service arises because personal service cannot be effected and since personal can only be effected on natural or juristic persons, the procedure for substituted service cannot be made to a limited liability company like the appellant herein.

I agree with my learned brother, Nimpar, JCA in the lead judgment that service of the writ of summons in the instant case was not done according to law. When an order or judgment is entered against a defendant, who claimed not to have been served with the

originating process, such an order or judgment becomes a nullity if such defendant proves non service of the originating process. Thus, service of originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant. If there is no service, the fundamental rule of natural justice, audi alteram partem will be breached. See Sken Consult Ltd. vs Ukey (1981) NSCC (Vol. 12) 1 at 16.
For the above and for the fuller reasons given in the lead judgment,
I too would allow this appeal and abide by all the consequential orders.

Appearances:

Chris Ekong, Esq.For Appellant(s)

Victor Batta, Esq.For Respondent(s)

Appearances

Chris Ekong, Esq.For Appellant

AND

Victor BattaFor Respondent