VITAL SOLUTION PTE LIMITED v. ALUBARIKA SANNI INDUSTRIES LIMITED (2019)

VITAL SOLUTION PTE LIMITED v. ALUBARIKA SANNI INDUSTRIES LIMITED

(2019)LCN/13821(CA)

In The Court of Appeal of Nigeria

On Friday, the 25th day of October, 2019

CA/L/1095/2015

RATIO

SERVICE OF ORIGINATING PROCESSES ON COMPANIES: WHO IS TO BE SERVED

My Lords, having had a calm reading of the reasoning in the above of decision of the apex Court and those of this Court on the vexed issue of service of originating processes of the Courts below on corporations and companies, such as the Appellant, it seems clear to me and I so hold that for service of originating process on the Appellant, a company to be proper and valid, it shall be served either on any of the Directors or Secretary or Principal Officer of the Appellant or be left at the Registered Office of the Appellant, and where it is a foreign Company then it must be transmitted to the Solicitor General of the Federation by the Chief Registrar of the Court below for further transmission to the foreign Country for service on the foreign Company. It follows therefore, any other form of service short of this is improper service and therefore, invalid. This, include service by substituted means on a Company, even where it was done pursuant to an order of Court. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

SERVICE OF ORIGINATING PROCESSES ON COMPANIES: A COMPANY CANNOT BE SERVED SUBSTITUTED MEANS

At any rate, it is my view that since a Company is not a natural person capable of evading service or otherwise making it difficult for service of Court processes to be effected on it, which is the main reason in law for recourse to substituted service, of whatever mode, including ?Courier? or ?Posting?, or ?Pasting? it cannot, ought not and should not be served with originating process by means of substituted service. Thus, an order for substituted service on a Company contrary to the clear provisions of the Rules of the Court below is ex-facie invalid and liable to be set aside ex-debito justitiae without much ado! See Kalu Mark & Anor V. Gabriel Eke (2004)5 NWLR (Pt. 865) 54 @ pp. 79 – 80. See also Ben Thomas Hotels Limited V. Sebi Furniture Limited (1989) 5 NWLR (Pt.123) 523; Sloman V. Government of New Zealand (1875) 1 CPD 563; Hillyard V Smyth (1889) 36 WR 7. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

SERVICE: FAILURE TO SERVE IN THE PRESCRIBED MANNER

Where service of a process is legally required, the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but who was not served with the process is entitled ex debito justitiae to have the order set aside as a nullity.

See also Total E & P Nigeria Ltd. V. Emmanuel & Ors. (2014) LPELR – 22679 (CA); Augustine Bassey Ene V. Chief Asuquo Asikpo (2009) LPELR 8723; Skenconsult Nig. Ltd. V. Ukey (1981) 1 SC 4 (Reprint); Uchendu V. Chief Eyo Ogboni (1999) 5 NWLR (Pt. 603) 337; Ali V. Albishir (2008) NWLR (Pt. 1073) 94 @ p. 138. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

SERVICE OF COURT PROCESSES: PURPOSE

I am aware, and it is true, that in law the purport and real essence of service of Court process is to bring the pendency of a matter in Court to the attention and notice of the Defendant or other party, yet it is also very trite and true in law that the Rules of various Courts have made provisions for service of Court processes, which is considered fundamental, and which must be complied with to render such service proper. See Bababe vs. Eze (2011) 11 NWLR (Pt. 1257) 48. See also Nitel Plc. Vs. I.C.I.C {Dictionary Publishers} Ltd. (2009) 16 NWLR (P. 1167) 356 @ p. 386; Nwankwo Vs. Kanu (2010) 6 NWLR (Part 1189) 62. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

THE COURTS SHOULD AVOID TECHNICALITIES AND PURSUE JUSTICE INSTEAD

The law now lays emphasis on the overriding need to render substantial justice over and above technical justice by the Courts. In Yusuf V. Adegoke (2007) LPELR-3534 (SC), the Supreme Court had succinctly stated inter alia thus:A technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. A technicality arises if a party quickly takes an immediate opportunity, however infinitesimal it may be, to work against the merits of the opponent?s case. In other words, he holds and relies tenaciously unto the rules of Court with little or no regard to the justice of the matter. As far as he is concerned the rules must be followed to the last sentences, the last words and the letters without much ado and with little or no regard to the injustice that will be caused the opponent.”(Underlining for emphasis, ours)

See also Dangote General ile Products Ltd & Ors V. Hascon Associates Nig. Ltd. & Anor. (2013) LPELR – 20665 (SC); Duke V. Akpabuyo L.G. (2005) 19 NWLR (Pt. 959) 130 @ pp. 142-1 43; U.TC.(Nig.)Ltd V.Pamotei (1989) 2 NWLR (Pt.103) 244. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

JUSTICES

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

VITAL SOLUTION PTE LIMITED – Appellant(s)

AND

ALUBARIKA SANNI INDUSTRIES LIMITED – Respondent(s)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of the Lagos State High Court of Lagos, Lagos Judicial Division Coram: O. A. Adamson J., in Suit No. LD/768/2013: AlubarikaSanni Industries Limited V. Vital Solution PTE Limited.., delivered on the 13/10/2015, wherein the Appellant?s application filed on 20/1/2014 seeking an order setting aside the service of the Writ of Summons, Statement of Claim and all other Court processes served on the Appellant by substituted means, was dismissed.

The Appellant was dissatisfied with the Ruling of the Court below and had appealed against it vide its Notice of Appeal filed on 27/10/2015 on seven grounds of appeal. See pages 286 – 290 of the Record of Appeal. The Record of Appeal and the Supplementary Record of Appeal were deemed duly transmitted to this Court on 2/10/2019. The Appellant?s brief was filed on 14/12/2015 but deemed as properly filed on 2/10/2019. The Respondent?s brief was filed on 20/1/2016 but deemed as properly filed on 2/10/2019. The Appellant?s reply brief was filed on 16/1/2017 but deemed as properly filed on 2/10/2019. ?

At the hearing of this appeal on 2/10/2019, Ayodeji Ogunlana Esq., learned counsel for the Appellant adopted the Appellant?s brief and reply brief as his arguments in support of the appeal and urged the Court to allow the appeal and set aside the ruling of the Court below. On his part, I. J. Nsofor Esq., learned counsel for the Respondent adopted the Respondent?s brief as his argument in opposition to the appeal and urged the Court to dismiss the Appeal for lacking in merit.

At the Court below, the Respondent as Plaintiff had instituted an action by way of a Writ of Summon dated 30/8/2013 in Form No. 2,in Suit No. LD/768/2013 claiming against the Appellant and one other, as Defendants, jointly and/or severally the following reliefs, namely:

1. The sum of USD701,789.30 representing sales/price loss suffered by the Claimant on the first shipment covered by Bill of Lading No: B009 dated 7th June, 2012 owing to the Defendants intrigues of shipping Off Standard/Off Thickness materials to the Claimant with interest on the said sum at the rate of 16% per annum from July, 2012 until judgment is given herein and thereafter at the

rate of 10% until the entire judgment debt is liquidated.

2. The sum of USD535, 146.50 representing sales loss suffered by the Claimant on the second shipment covered by Bill of Lading No.: B106 dated 14th June, 2012 owing to the Defendants? intrigues of shipping Off standard/Off Thickness materials to the Claimant with interest on the said sum at the rate of 16% per annum from July, 2012 until judgment is given herein and thereafter at the rate of 10% until the entire judgment debt is liquidated.

3. The sum of USD338,464.00 representing the total value of 423.08 Metric Tons of steel materials short shipped by the Defendants under the order covered by Bill of Lading No.: B009 dated 7th June, 2012 including taxes and clearing cost with interest on the said sum at the rate of 16% annum from July, 2012 until judgment is given herein and thereafter at the rate of 10% until the entire judgment debt is liquidated.

4. The sum of USD294,734.40 representing the total value of 368.42 Metric Tons of steel materials short shipped by the defendants under the order covered by Bill of Lading No.: B106 dated 14th June 2012 including taxes and clearing cost

with interest on the said sum at rate of annum from July, 2012 until judgment is given herein and thereafter at the rate of 10% until the entire judgment debt is liquidated.

5. The sum of USD60,039.28 being the tax and clearing cost expended by the Claimant on the short shipped materials of 423.08 MTs of the first shipment with interest on the said sum at rate of 16% per annum from June 2012 until judgment is given herein arid thereafter at the rate of 10% until entire judgment debt is liquidated.

6. The sum of USD52,282.48 being the tax and clearing cost expended by the Claimant on the short shipped materials of 368.42MTs of the second shipment with interest on the said sum at rate of 16% per annum from July, 2012 until judgment is given herein and thereafter at the rate of 10% until the entire judgment debt is liquidated

7. The sum of N300,000.00 representing Survey Fee paid to INTRASS Limited by the Claimant for conduct of survey/inspection with interest on the said sum at rate of 16% annum from September, 2012 until judgment is given herein and thereafter at the rate of 10% until the entire judgment debt is liquidated.

8.The sum of

USD5,000,000.00 as Exemplary/Aggravated damages against the Defendants.

9. The sum of N7,500,000.00as cost of this action.

See pages 3 – 4 of the Record of Appeal.

However, following an application by the original 2nd Defendant, its name was struck out of the suit leaving the Appellant as the sole Defendant. See pages 275 – 277 of the Record of Appeal.

BRIEF STATEMENT OF FACTS

?The gist of the case of the Appellant, who was the Defendant before the Court below, in this appeal is that on 20/1/2014, it had filed a motion on notice before the Court below seeking an order setting aside the service of the Writ of Summons, Statement of Claim and all other Court processes which were purportedly served on the Appellant pursuant to an order of the Court below for substituted service on the Appellant to wit, by posting through Courier Service contrary to the requirement of the law vide Section 78 of the Companies and Allied Matters Act 2004 and Order 8 of the High Court of Lagos State (Civil Procedure) Rules, 2012 in that the Appellant being a limited liability company, it ought not to have been be served by substituted means having regard

to the Supreme Court decision inMark v. Eke (2004) 5 NWLR (Pt. 865) 54 @ pp. 79-80. It is also the case of the Appellant that being a limited liability company residing out of the jurisdiction of the Court below and, indeed outside Nigeria, it filed a memorandum of Conditional Appearance to signpost its objection to the assumption of jurisdiction over it and thereafter on 20/1/2014, it challenged the purported service of the Writ of Summons and all other processes through an application on notice to set aside the wrongful service of the originating processes on it but regrettably, on 13/10/2015 the said application was dismissed by the Court below.

On the other hand, the gist of case of the Respondent, who was the Plaintiff before the Court below, in this appeal is that the Respondent having commenced an action before the Court below against the Defendant claiming various monetary reliefs, it filed an application ex – parte on 29/8/2013 wherein it sought the leave of the Court below to serve the Writ of Summons and all processes on the Appellant by substituted means on the Appellant which resides outside the jurisdiction of the Court below in Singapore

to wit: by posting the processes to the Appellant?s business address at 77, Robinson Road, #14 – 01, Robinson 77, Singapore by DHL, a worldwide Courier Services through which means the Appellant would become aware of the proceedings in this suit. On 20/1/2014, the Appellant filed an application before the Court below seeking an order setting aside the due service of the originating processes on it by mean of substituted service made pursuant to the order of the Court below duly granted to the Respondent. The Respondent successfully opposed the Appellant?s application to set aside the service on it of the originating processes by the Respondent, which application was rightly dismissed by the Court below on 13/10/2015.

The Parties field and exchanged their affidavit and counter affidavit. On the motion on Notice filed by the Appellant. Subsequently, the application was heard and on 13/10/2015, the Court below delivered its ruling dismissing the application, holding that the service on the Appellant with the originating processes by substituted means was proper and valid, hence this appeal by the Appellant against the said ruling. See pages 238

– 245, 258 – 259 and 279 – 285 of the Record of Appeal.

ISSUES FOR DETERMINATION

In the Appellant?s brief, four issues were distilled as arising for determination from the seven grounds of appeal, namely:

1. Whether service of an originating process can be properly effected on the Appellant, a limited liability Company by substituted means in the light of the decision of the Supreme Court in Mark V. Eke? (Distilled form grounds one and four)

2. Whether the purported service of the originating processes on the Appellant by the Respondent complied with the provisions of Order 8 of the High Court of Lagos State (?civil Procedure’) Rules, 2012?(Distilled from ground two)

3. Whether the originating process, the Writ of Summons, herein is incompetent and the Court below lacked the jurisdiction to hear the action and or any application and make any order whatsoever in favor of the Respondent? (Distilled from ground five)

4. Whether the Court below properly exercised its discretion in granting the Respondent?s application for substituted service when sufficient reasons were not given therefore (Distilled from ground Seven).

In the Respondent?s brief, three issues were distilled as arising for determination in this appeal, namely:

1. Whether the form of the originating process in Suit No.: LD/768/2015 and the mode of service adopted by the Respondent was in compliance with the manner provided by Order 8, Rule 3 of the High Court of Lagos State (Civil Procedure) Rules. 2012 and satisfies the requirement of the rules as effective and valid service of the originating processes on the Appellant? (Distilled from grounds one and two)

2. Whether, assuming but without conceding, that the Writ of Summons in Suit LD/768/20I3 is voidable, the Appellant is not estopped by its conduct in the matter from belatedly challenging the competence of the Writ of Summons? (Distilled from ground 5)

3. Whether the case of Mark V. Eke (2004) 5 NWLR (Pt. 865) 54 which stated, obiter, that a limited liability Company cannot be served with an originating process by substituted means of ?Pasting? has any force of precedent applicable to the peculiar facts of this case to vitiate service of an originating process on a company by other substituted modes of service provided by

the Rules of Court? (Distilled from grounds four and seven).

I have given due considerations to the facts and circumstances of this appeal as in the printed record. I have also calmly reviewed the submissions of counsel in their respective briefs in the light of the findings and decisions in the Ruling of the Court below. Upon an anxious consideration of all the above, it appears to me that the proper issues for determination in this appeal are issues one and three as distilled in the Appellant?s brief, a consideration of which, in my view, would invariably involve a due consideration of all the three issues as distilled in the Respondent? brief. Now, while Appellant?s issue one covers Appellant?s issues two and four as well as Respondent?s issues one and three, Appellant?s issue three covers Respondent?s issue two. I shall therefore, proceed to consider and resolve these issues anon! However, in the Appellant?s brief, grounds three and six of the grounds of appeal were abandoned by the Appellant, and having been so abandoned they are hereby struck out.

OBJECTION TO COMPETENCE OF APPELLANT?S ISSUE THREE

In the Respondent?s brief an objection was raised by way of arguments canvassed that issue three as distilled in the Appellant?s brief was incompetent and ought to be struck out or discountenanced by the Court in the consideration and resolution of the proper issues arising for determination in this appeal.

RESPONDENT?S COUNSEL SUBMISSIONS

Learned counsel for the Respondent had submitted that issue three dealing with the competence of the Respondent?s Writ of Summons is a new issue having neither been raised before the Court below in the Appellant?s application filed on 20/1/2014 nor decided upon in the ruling of the Court below appealed against by the Appellant, and contended that both issue three and ground five on which it was purportedly raised do not derive from any of the decisions of the Court below in the ruling appealed against and therefore incompetent and urged the Court to so hold and to strike out issue three. Counsel relied on Mercantile Bank of Nig. Plc. & Anor. V. Linus Nwobodo (2005) LPELR ? 1860(SC); Manhattan Investment Limited V. Corporation Development Bank (2009) LPELR-4472 (CA).

It was also submitted that though in law a fresh issue may in exceptional and deserving circumstances be raised in an appeal, the reference to an issue as being ?jurisdictional? would not suffice to save the Appellant?s issue three and contended that in deserving cases the Court may allow a fresh issue to be raised but only upon its prior leave sought and obtained or where founded purely on ?jurisdictional issue?. Counsel relied on Mercantile Bank of Nig. Plc. & Anor. V. Linus Nwobodo (2005) LPELR ? 1860 (SC); Manhattan Investment Limited V. Corporation Development Bank (2009) LPELR – 4472 (CA); Adeyemi Ale V. Chief Ogundele Adeleye & Ors (2014) LPELR-22782, Obiakor V. The State (2002) 10 NWLR (Pt. 776) 612 @ p. 626;

It was further submitted that issue three raises issues not supported by the facts and circumstances before the Court below and do not amount to any genuine issue of jurisdiction for which leave of the Court may not be required and contended that there being no prior leave for the Appellant to raise issue three for the first time before this Court, the Appellant?s leaning

on jurisdictional issue should utterly fail since the Appellant, by its conduct, has been caught by the twin doctrines of waiver and estoppel by conduct and therefore, cannot be allowed to approbate and reprobate. Counsel relied on MTN Nigeria Communications Ltd V. Alh. Abubakar & Anor. (2014) LPELR-22783.

APPELLANT?S COUNSEL REPLY SUBMISSIONS

Learned counsel for the Appellant had submitted that the issue raised in issue three is that of non-compliance with a condition precedent as it relates to the commencement of a suit and therefore, not a mere technical rule of procedure as it goes to the root of the suit and robs the Court below of its jurisdiction and contended that in law an issue of jurisdiction can be raised at any time and at any stage of the proceeding even for the first time before the Supreme Court and once raised, everything else has to stop and give prime position of hearing on the jurisdictional issue and urged the Court to hold that in the circumstances in which issue three is founded on jurisdiction it could be raised and was so properly raised without the need for leave of the Court and to dismiss and discountenance the

objection by the Respondent to the competence of issue three as distilled in the Appellant?s brief and to determine same on the merit. Counsel relied on Dr. Tosin Ajayi V. Princess (Mrs.) Olajumoke Adebiyi Ors. (2012) 11 NWLR (Pt. 1310) 137 @ p. 202; Peenok Investment Ltd V. Hotel Presidential Ltd (1983) 4 NCLR 122.

It was also submitted that the issue of jurisdiction is so fundamental that in law an Appellant does not need to obtain any leave of the Appellate Court to canvass issues relating to jurisdiction and competence of the trial Court and contended that although it is true that the issue of the competence of the Writ of Summons was not canvassed and or challenged by the Appellant before the Court below, but it being an issue that touches on the jurisdiction of the Court below, it can be raised before this Court for the first time in this appeal and urged the Court to so hold and to dismiss the objection by the Respondent. Counsel relied on Galadima V. Tambai (2000) 11 NWLR (Pt. 677) 1; NDIC V. Savannah Bank Plc. (2003) 1 NWLR (Pt. 801) 311 @ p. 356.

RESOLUTION ON COMPETENCE OF APPELLANT?S ISSUE THREE

My lords, the objection

raised by the Respondent borders, in my view, on an area of the law that has been well settled and therefore, has nothing recondite at all left to further agitate the Courts. It is well settled law that where an issue raised in appeal borders on competence of a matter or process before a Court of law, going to the root of the matter or process and capable of robbing the Court of its jurisdiction, which is fundamental to adjudication, it can be raised at any time and at any stage of the proceeding even for the first time before the Supreme Court and once raised, it must be resolved one way or the other by the Court. See Dr. Tosin Ajayi V. Princess (Mrs.) Olajumoke Adebiyi Ors. (2012) 11 NWLR (Pt. 1310) 137 @ p. 202; Peenok Investment Ltd V. Hotel Presidential Ltd (1983) 4 NCLR 122. It is also the law, over which there can no longer be any valid disputations and or genuine contentions, that the issue of jurisdiction is both fundamental and radical and therefore, an Appellant does not need to obtain any leave of Court to canvass issues relating to jurisdiction and competence of the Court below before this Court and even at the apex Court of the land.

It can, and indeed should be raised, without any prior leave, first sought and obtained in order to save the Court from delving into the merit of matters which at the end might turns out to be incompetent and thus robbing the Court of its jurisdiction, only after precious and scarce judicial time and energy, which ought to be conserved for matter that are competent, must have been expended on such incompetent matter. See Galadima V. Tambai (2000) 11 NWLR (Pt. 677) 1; NDIC V. Savannah Bank Plc. (2003) 1 NWLR (Pt. 801) 311 @ p. 356. Now, on the facts and circumstances of this appeal, taking into consideration ground five of the grounds of appeal, does the Appellant need the leave of this Court to raise and canvass the issue covered by issue three in the Appellant?s brief? Issue three is undoubtedly a fresh issue but there can be no genuine disputation that it borders on competence of the Writ of Summons. The question then is this: is the prior leave of this Court required to raise such a fresh issue bordering on competence of the Respondent?s Writ of Summons, more so when the issue three derives from ground five of the grounds of appeal? In other

words, is leave required to raise a ground of appeal bothering on competence and jurisdiction? If the answer to this question is in the negative, then is leave required to raise an issue flowing from a ground of appeal alleging issue of jurisdiction and competence? The answer, in my view, is a resounding no! My Lords, a party, such as the Appellant in the instant appeal, does not require leave of Court to file a ground of appeal raising an issue of jurisdiction and or competence and it is immaterial whether such an issue was first taken up before the Court below or not and forms part of the decision appealed against. This is so because an issue of jurisdiction and competence can be raised at any stage of the proceedings and even for the first time on appeal either at this Court or even at the apex Court. Once raised, it must be resolved one way or the other before the merit of the matter is considered since no matter how meritorious a matter may be it would be a sheer waste of the precious judicial time of the Court, as well as the limited time of the parties, to consider and determine a matter which is incompetent and for which the Court lacks the

jurisdiction to so do. In law, once a process is incompetent it robs the Court of its jurisdiction and once jurisdiction is lacking in the Court, every decision no matter how sound is a nullity. No Court of law ought to, with its eyes open and it senses correct, embark on such a journey without first determining the issue of the competence of the matter before it which could invariably affect its own jurisdiction to determine same. Thus, it is only after such an issue alleging incompetence against the matter pending before it has been duly considered and a determination one way of the other made that the Court would be in a proper position either to consider the matter on the merit or to terminate it in limine depending on where the pendulum swing in the resolution of the issue of competence. In the circumstances therefore, the objection by the Respondent challenging the competence of issue three, derived from ground five of the grounds of appeal, lacks merit being merely an herring and is thus hereby overruled and discountenanced. I hold that issue three, arising from and distilled by the Appellant from ground five of the Appellant?s

grounds of appeal, is competent to be heard and determined on the merit in this appeal and no leave of Court is required of the Appellant to raise it, being an issue of competence, not determining at this stage whether the issues three has merit or not, which issue shall be considered and resolved in the main appeal.

ISSUE ONE

Whether service of an originating process can be properly effected on the Appellant, a limited liability Company by substituted means in the light of the decision of the Supreme Court in of Kalu Mark & Anor V. Gabriel Eke (2004) 5 NWLR (Pt. 865) 54 @ pp. 79- 80?

APPELLANT?S COUNSEL SUBMISSIONS

On his issue one, learned counsel for the Appellant had submitted that in law service of Court processes is fundamental and an indispensable condition sine qua non to the hearing of any suit and contended that any failure to effect service of Court process as required goes to the root and any order granted is liable to be set aside as a nullity and urged the Court to hold that the service of the Respondent?s originating processes on the Appellant contrary to the requirements of the law was improper, invalid

and liable to be set contrary to the perverse findings of the Court below, which should be set aside and the improper service on the Appellant be set aside as mandated by law. Counsel relied on United Bank for Africa V. Okonkwo (2004) 5 NWLR (Pt. 867) 445; S.G.B.N Ltd V. Adewunmi (2003) 10 NWLR (Pt. 829)539.

It was also submitted that the Appellant is a registered company carrying on business outside the jurisdiction of the Court below, specifically in Singapore and it is thus clear that service on the Appellant is regulated by Statutory provisions as well as Rules of the Court below and contended that the Respondent failed to comply with the relevant provisions regulating service of originating process on a limited liability Company and in order to circumvent them sought and obtained the order of the Court below to serve the Appellant by means of substituted to wit: by posting the originating processes by Courier to the address of the Appellant and urged the Court to hold that such service, which is clearly contrary to the law and rules regulating proper service of originating process on limited liability Companies, such as the Appellant, was improper,

null and void and thus liable to be set aside and to set aside the perverse ruling of the Court below to the contrary and set aside the service of Respondent?s Writ of Summons on the Appellant by the Respondent. Counsel referred to Section 78 of the Companies and Allied Matters Act Cap C20 LFN, 2004 and Order 8 Rules 3 and 4 of the High Court of Lagos State (Civil Procedure) Rules, 2012 and relied on Kalu Mark & Anor V. Gabriel Eke (2004) 5 NWLR (Pt. 865) 54 @ pp. 79 – 80.

It was further submitted that the Court below faced with similar circumstances in the application filed before it by the Appellant, was on the authority of the Supreme Court decision in Mark V. Eke (Supra), with which decision it was bound, ought to have granted the Appellant?s application and set aside the improper service of the Respondent?s originating process on the Appellant since by the decision of the Supreme Court, an order for substituted service can only be made against a natural person and not against a registered company that has directors, secretaries and other principal officers as well as a registered address where Court processes ought to be served in

accordance with the Rules of Court and urged the Court to allow the appeal, set aside the perverse ruling of the Court below and set aside the improper service of the Respondent?s originating processes on the Appellant.

On his issue two, learned counsel for the Appellant had submitted that proper service of Court process is one of the condition precedent that must be fulfilled before a Court can said to be competent to assume jurisdiction in a matter brought before it and contended that in law where service of Court process is required, such service must be effected in accordance with the provisions of the relevant rule, failing which such service would be rendered improper and liable to be set aside, since service of Court process is fundamental and must be done in compliance with the relevant laws and Rules of the affected Court, which rules must be obeyed and requires that the originating processes ought to be transmitted to the Solicitor General of the Federation by the Chief Registrar of the Court below for further transmission to the appropriate authority in Singapore for service of the Appellant, which carries on its business in Singapore and

not otherwise by means of substituted service to wit: by posting through Courier service as was erroneously ordered by the Court below. Counsel referred to Order 8, Rule 3 (a) of the High Court of Lagos State (Civil Procedure) Rules, 2012 and relied on Mudasiru V. Abdulahi (2009) 17 NWLR (Pt. 1171) 547.

On his issue four, learned counsel for the Appellant had submitted that in law the grant or refusal of an application for substituted service is at the discretion of the Court, which discretion however, must be exercised judicially and judiciously and contended that the grant of an application for substituted service is not automatic but must be based on facts and grounds as set forth by an Applicant upon which the Court would consider before exercising its discretion and urged the Court to hold that the facts relied upon by the Respondent in obtaining the order of substituted service were completely insufficient to warrant the grant of the order for substituted service by the Court below, especially where the applicable rule of the Court below has made copious provisions on how service of originating process shall be effected on a foreign company, such

as the Appellant and urged the Court to allow the appeal and set aside the order of substituted service of the Court below as well as the resultant improper service of the Respondent?s originating processes on the Appellant. Counsel referred toOrder 7 Rule 5 (1) and (2) and Order 8 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 2012 and relied on Caribbean Trading and Fidelity Corporation V. NNPC (1992) 7 NWLR (Pt.252) 161 @ p. 182.

RESPONDENT?S COUNSEL SUBMISSIONS

On his issue one, learned counsel for the Respondent conceded that in law where service of a process is required to be effected in any manner, failure to effect service in accordance with the law is a fundamental flaw that affects jurisdiction of the Court to entertain the suit but contended that the use of the word ?May? in Order 8 Rule 3 of the Rules of the Court below was deliberate and imports or convey the conferment of discretionary power on the Respondent, in the light of the options of three modes of service under the Rule from which a party may, if it so desires, ?adopt? in effecting service of an originating process outside

jurisdiction and urged the Court to hold that the option of posting by Courier to the registered office of the Appellant in Singapore was proper as found by the Court below and to dismiss the appeal and affirm the decision of the Court below. Counsel referred to Section 78 of the Companies and Allied Matters Act, Cap. C20, 2004; Order 8 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules 2012 and relied on Teno Engr. Ltd V. Adisa (2005) 10 NWLR (Pt. 933) 346 @ p. 353; Daily Times (Nig.) Plc. V. Amaizu & Ors (1999) 12 NWLR (Pt. 631) 439.

It was also submitted that from the proviso to Rule 3 of Order 8 of the Rules of the Court below, substituted service by posting through Courier is proper as being available to the Respondent as an exception to the application of paragraphs (a) ? (d) of Rule 3 of Order 8 of the Rules of the Court below and contended that procedures set out under paragraphs (a) and (d) of Rule 3 of Order 8 of the Rules of the Court below are not mandatory by reason of the proviso which made the recourse to substituted service by Courier a viable option and urge the Court to so hold and to dismiss the appeal for

lacking in merit and affirm the option of mode of substituted service by Courier utilized in the service of the Respondent?s originating processes on the Appellant, a mode which is not to be merely redundant in the said rules, as ordered by the Court below. Counsel referred to the proviso to Rule 3 of Order 8 of the High Court of Lagos State (Civil Procedure) Rules 2012; Black?s Law Dictionary 9th Edition, @ p. 1346 and relied on Obi V. INEC (2007) ALL FWLR (Pt. 378) 1116@ p. 1166; Chief S.O. Adedayo & Ors. V. PDP (2013) LPELR-20342(SC); Nigeria Deposit Insurance Corporation V. Okem Enterprises Ltd & Anor (2004) LPERLR-1999(SC); Equere Mbat Ukpe v. The Registered Trustees of the Apostolic church of Nigeria &Anor (2012) LPELR -19709 (CA).

It was further submitted that service in accordance with Rule 4 of Order 8 of the Rules of the Court below would arise only where there exists a convention between a foreign country, in which the process is intended or desired to be served and Nigeria, and being that no such convention between Nigeria and Singapore has been shown by the Appellant, there was no duty on the Respondent to comply with

Order 8 Rule 4 of the Rules of the Court below and contended that at any rate the provisions of Rule 4 of Order 8 of the Rules of the Court below was irrelevant to the proper service of the originating processes as was duly made by the Respondent on the Appellant and urged the Court to so hold and dismiss the appeal for lacking in merit and affirm the correct decision of the Court below.

On his issue three, learned counsel for the Respondent had submitted that in law the doctrine of stare decisis, as well entrenched in our jurisprudence, is that all Courts in Nigeria are bound by the decisions of the apex Court, however, the lower Courts must follow the ratio decidendi and not an obiter dictum, which is not binding on the lower Courts and contended that the facts, grounds and issues in Mark V. Eke (Supra) are very distinct and different from the issues in the instant appeal and urged the Court to hold that since lower Courts are bound only by ratio decidendi, none of the five issues before the apex Court in the case of Mark V. Eke (Supra) gave rise to the observations of Musdapher JSC., to the effect that a corporate body cannot be served with

originating process by means of substituted service as vehemently but erroneously being relied upon by the Appellant in the instant appeal. Counsel relied on Adegoke Motors Ltd. V. Dr. Babatunde Adesanya & Anor., (1989) LPELR-94(SC);Mrs. Matilda Aderonke Dairo V. Union Bank of Nigeria Plc. (2007) 7 NWLR (Pt. 1059) 99; Chevron (Nig.) Ltd. V. Warri North L.G.C. (2002) LPELR – 5435 (CA); PHCN Plc. & Anor., V. Attorney General of Sokoto State & Anor (2014) LPELR-23825; FRN V. Lalwani (2013) LPELR ? 20376(CA); Chief Francis Uchenna Ugwu & Ors V. Peoples Democratic Party & Ors (2013) LPELR-213556(CA).

APPELLANT?S COUNSEL REPLY SUBMISSIONS

In his reply, learned counsel for the Appellant reiterated his earlier submissions and further submitted that the crux of this appeal is the express provision laid down in the Rules of Court as regards the service of processes on a company or body corporate and contended that for service on a limited liability Company to be proper and valid it must be done in strict compliance with relevant laws and the Rules of the particular Court and urged the Court to hold that the purported service of the

Respondent?s originating processes on the Appellant by means of substituted service to wit: by posting through DHL Courier was not in compliance with the relevant laws and Rules of the Court below and therefore, was improper, null and void and thus liable to be set aside and should be so set aside by the Court. Counsel referred to Section 78 of the Companies and Allied Matter Act, Cap C20 LFN, 2004; Order 8 Rules 3 and 4 of the High Court of Lagos State (Civil Procedure) Rules 2012 and relied on Alhaji Idirisu Sanni V. Mallam Ahmadu Salihu Bello Agara (2010) 2 NWLR (Pt. 1178) @ pp. 398 – 999; MV ?MSC AGATA? & Anor V. Nestle Nigeria Plc. & Anor 1 NWLR (Pt. 1388) @ P. 290.

RESOLUTION OF ISSUE ONE

My Lords, the crucial issue in this appeal emanating from issue one is the place of proper service of originating processes on a Defendant. In law, service of originating processes, as well as all other Court processes meant for service, is fundamental. It is what confers the right on the Court to assume jurisdiction over the Defendant who has been duly served. However, where an originating process was duly issued and initiated in accordance

with due process of law and thus competent, the failure to serve it or serving it improperly does not vitiate the competence of the originating processes. Thus, where an originating process had been duly issued but the service of same on the Defendant turns out to be improper and thus invalid, it is the defective service and not the originating process that is thereby affected and rendered invalid, while the originating process remains valid. In such circumstance, the Court has the plenitude of power to order proper service of the valid originating process on the Defendant.

Now, what are the facts on which the parties relied upon for their varying contentions before the Court below leading to the ruling appealed against in this appeal? By a motion on notice filed on 20/1/2014, the Appellant sought for an order of the Court below setting aside the service of the Writ of Summons, Statement of claim and all other Court processes in this Suit on the Appellant. The grounds for the application were that the Appellant, as the Defendant on record, has not been served in line with Order 8 of the High Court of Lagos State (Civil Procedure) Rules, 2012, and that the

Appellant as a limited liability Company cannot be served by substituted means having regard to the Supreme Court decision in Mark V. Eke (2004) 5 NWLR (Pt. 865)54 @ pp. 79 – 80. See page 238 – 239 of the Record of Appeal.

In the affidavit in support of the application, it was deposed inter alia as follows:

2. i. That the 1st Defendant has not been served in accordance with the provisions of Order 8 of the Rules of this Honourable Court.

ii. That as a limited liability company, the 1st Defendant is not amenable to service by substituted means.

iii. That having not been properly served, the 1st Defendant is unable to determine whether the documents delivered to it by Courier were the correct Originating Processes in this suit.

See pages 238 – 245 of the Record of Appeal.

On the other hand, in the counter affidavit, it was deposed inter alia as follows:

4. That I know for a fact that the Defendant/Applicant was duly served with Originating Processes in this suit on 30/10/2013 by the Bailiff of Court through courier delivery in consonance with the order of Court dated 14th October, 2014.

5. That the Originating and

accompanying frontloaded processes filed in the suit and no other were what the Bailiff served on the Defendant which comprised the Concurrent Writ of Summons dated 30/8/2013; statement of Claim, List of Witnesses evenly dated 29/8/2013, statement on Oath of Alhaji Sanni Abdulfatai; and of Mr. Yussuf Kolawole respectively and List of Documents evenly dated 29/8/2013.

6. That upon receipt of the processes, the Defendant on the 18/12/2013 promptly responded to the suit and served on our office its Defense

7.(b). That the mode of service ordered by the Court as adopted by the Claimant/Respondent contrary to the deposition in paragraph 2(i) of the Applicant?s Supporting Affidavit is provided for in the rules of the court.

See pages 258 – 259 of the Record of Appeal.

Earlier upon filing the Writ of Summons, the Respondent as Plaintiff had filed a motion ex – parte seeking an order granting leave to serve the Writ of Summons and all other originating processes on the Appellant, as the 1st Defendant before the Court below, by substituted means to wit: by posting the processes to the Appellant? business address at 77, Robinson

Road, 14-01, Robinson 77, Singapore by DHL World Wide Courier Services, and an order granting leave to serve the said originating processes on the Appellant outside of the jurisdiction of the Court below in Singapore. See pages 186 – 187 of the Record of Appeal.

In the affidavit in support of the Respondent?s motion ex ? parte it was deposed inter alia as follows:

5. That I also know for a fact that the 1st Defendant is a Singaporean company with business address outside the jurisdiction of this Court to wit: 77, Robinson Road, 14-01, Robinson 77, Singapore.

7. That the 1st Defendant will not become aware of this suit unless leave is granted to serve it with the Writ of Summons and all frontloaded Processes herein by substituted means of posting the processes to the Defendant?s business address at 77, Robinson Road, 14-01, Robinson 77, Singapore.

9. That personal service of the Originating Processes in this suit may not be conveniently effected on the 1st Defendant/Respondent save by the substituted means prayed the court by the Applicant.

10. That I reasonably believe that service of the Writ of summons and all

frontloaded Processes of this Court will be effectively made on the 1st Defendant/Respondent by posting the processes to the 1st Defendant?s business address through DHL World Wide Courier Services.

See pages 188- 189 of the Record of Appeal

On 14/10/2013, upon the hearing the above motion ex – parte, the Court below granted leave to the Respondent to serve the Writ of Summons and frontloaded processes on the Appellant who is outside the jurisdiction of the Court below, by substituted means to wit: by posting the said processes to the Appellant?s business address at 77, Robinson Road, 14-01, Robinson 77, Singapore by DHL World Wide Courier Services which shall be deemed good and proper service. See pages 196 – 197 of the Record of Appeal.

The originating processes were thus subsequently served as ordered by the Court below on the Appellant in Singapore and an affidavit of service to that effect was deposed to by one Disu Rasaki, a bailiff with the Court below, on 1/11/2013 that on 28/10/2013 the originating processes dated 30/8/2013 were served by substituted service to wit: by posting through DHL Courier service and were received in

Singapore by the Appellant from the DHL Courier on 30/10/2013 and signed for by one MAY2. See pages 193 – 195 of the Record of Appeal.

It was on the strength of the above facts and circumstances that the Court below had in its ruling delivered on 13/10/2105, held inter alia thus:

It is apparent from the processes before this Court that the Defendant/Applicant is a foreign company?It is clear from the records of this Court that leave was granted to serve the Defendant/Applicant by post being outside jurisdiction vide its order granted on the 14/10/2013.?The Defendant/Applicant did not specify whether the Claimant/Respondent flouted either Rule 3 or 4 of Order 8?.It is clear from record that the Defendant/Applicant was served through courier at its registered office in Singapore and one May 2 accepted service on its behalf as shown in evidence of service attached to the proof of service?.However, Order 8 Rule 3 paragraph (d) is very clear it gives the Court the power to grant leave to an applicant to serve outside jurisdiction by courier?The Court is of the considered opinion that there is a

misconception of the decision in Mark V. Eke (Supra), the particular facts in this case is distinguishable from that of Mark V. Eke?Flowing from the findings above that the Defendant is a foreign company and coupled with the fact that it was served pursuant to an order of Court granted on 14/10/2013 in line with the provisions of Order 8 Rule 3 (d), the Defendant?s application to set aside the service of the originating processes hereby fails and same is dismissed.? See pages 279 – 285 of the Record of Appeal.

My Lords, while the submissions on law between the parties appears to be divergent and contentious, the facts of the mode of service of the originating processes on the Appellant are very straight forward and the parties are ad idem that the originating processes were served on the Appellant, a foreign limited liability company, by means of substituted service to wit: by posting through Courier service, pursuant to the orders of the Court below. Thus, the only duty on this Court in this appeal is to consider and resolve which of the divergent contentions of the parties represent the correct and applicable position of the law as to

proper and valid service of originating processes on a limited liability company. In other words, is the service of the originating processes on the Appellant by means of substituted service, to wit by posting through Courier proper or improper, valid or invalid? I shall answer these anon! In law, service of Court processes, more particularly originating processes, is fundamental and an indispensable condition precedent to the assumption of jurisdiction by the Court. Thus, failure to effect service of Court process as required by law is improper and goes to the root of the matter and robs the Court of its jurisdiction and any such improper service is a nullity and therefore, liable to be set aside as a nullity. In United Bank for Africa v. Okonkwo (2004) 5 NWLR (Pt. 867) 445, the Supreme Court held inter alia as follows:

is settled that service of originating process is sine qua non to the exercise of adjudicative powers by a Court. Undoubtedly, it is the law that proper service of originating process empowers a Court to exercise its adjudicative powers over a Defendant. It is equally true that non service of originating process

renders the entire proceedings a nullity.”

See also S.G.B.N Ltd V. Adewunmi (2003) 10 NWLR (Pt. 829) 539. Now, how is service of originating process to be effected on a Company or Corporation such as the Appellant in order to amount to proper service? Going by the avalanche of submissions on this seemingly difficult issue of law, it appears that this appeal raises a very thorny issue on which the law seems recondite, and therefore, a great deal of painstaking consideration is required of this Court in resolving the issue one, which indeed is the real crux of this appeal. Happily, this Court is and has always been equal to the task! In Okonji V. Onwusanya & Ors. (2014) LPELR 22191(CA), this Court had profoundly reiterated the sound position of the law on the fundamental issue of service of Court processes inter alia thus:

?The law is well settled beyond controversy, that where the rules of Court provides that writs of summons, originating summons be personally served on the defendant, failure to do so, is not a mere irregularity but a fundamental vice which goes to the root of the action and any judgment or order obtained

thereon, is a nullity and ought to be set aside. This is because, service of an originating process on a defendant is what brings him to the Court and then confers jurisdiction on the Court to adjudicate over the case.?

See also African Continental Bank Plc. V. Losada Nig. Ltd (1995) 7 NWLR (Pt. 405) 25.

So fundamental and crucial is the requirement of the law on service of originating processes that a failure to do so would, without exceptions, render the proceedings and decisions of the Court a nullity for want of jurisdiction. In law therefore, a failure to properly serve an originating process is a fundamental vice and deprives the Court of the necessary competence and jurisdiction to hear and determine the suit against the party not properly served. It is never a mere irregularity that can be waived. See Kalu Mark &Anor. V. Gabriel Eke (2004) 5 NWLR (Pt. 865) 54, where Musdapher JSC, lucidly re-stated this position of the law inter alia thus:

?When an order is made 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 the

defendants prove non-service of the originating process. It is a nullity because the service of the 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 also Auto Import Export V. Adebayo (2002) 18 NWLR (Pt. 799) 554; Mohammed Kida V. A.D. Ogunmola (2006) Vol. 8 MJSC. 1.

In law, a limited liability company has a legal personality of its own as distinct from its promoters and shareholders and directors, who are its directing minds and alter ego. Thus, it has the legal capacity to sue and be sued in its own right as has long been well settled in law from antiquity to the present day. See Salomon V. Salomon and Company (1897) AC 22 See also Kessignton Egbor JP & Anor V. Peter O. Ogbebor (2015) LPELR – 24902 (CA); Ramanchandani V. Ekpenyong (1975) 5 SC (Reprint) 29; Kate Enterprise Ltd. V. Daewoo Nig. Ltd. (1985) All NLR 267.

There is no doubt an affidavit of service, of the originating processes on the Appellant. I am aware that ordinarily, in law an affidavit of service in the absence

of any credible evidence to the contrary amounts to proof of service. In Afribank {Nig.} Plc. Vs. Yelwa {2011} 12 NWLR (Part 1261) 286 @ p. 305, this succinct position of the law was reiterated inter alia thus:

?The rules of Court enjoin the Court to rely on the proof of Service filed by the bailiff of the Court in all matters of service of Court processes, unless there is credible evidence, strong enough and adduced by the party that contests the truth of such service to defeat such faith or believe in the bailiff.? However, an affidavit of service is merely a prima facie proof of service and nothing more and therefore, where there is credible evidence of non-service or improper service before the Court, it will certainly rebut the presumption of service conferred on an affidavit of service as proof of service of Court processes. See S. S. GMBH V. V. Tunji Dusumu Industries Ltd (2010) 11 NWLR (Pt. 1206) 589, where Chukwuma-Eneh JSC, had explained in simple term the meaning of the phrase ?prima facie? inter alia thus:

?Simply put the phrase ?Prima Facie? means as per evidence which if accepted appears

to be sufficient to establish a fact or sustain a judgment unless rebutted by acceptable evidence to the contrary. In other word, it is not conclusive. It is evidence (as distinct from proof) that is, on first appearance.”

It follows, therefore, that an affidavit of service is not on an inviolable pedestal as it is a rebuttable presumption of service of Court process. It is therefore, not a conclusive proof of service of Court process where proper service is disputed unless there is no credible evidence to the contrary before the Court. See Kalu Mark & Anor Vs. Gabriel Eke (2004) 5 NWLR (Pt. 865) 54 @ P. 79, where Musdapher JSC, had explained the position of the law on affidavit of service inter alia thus:

?Now the affidavit of service sworn to by the bailiff shows that there are two Defendants, one an individual (the 2nd Appellant). The first Appellant is a limited liability company. The bailiff stated that he effected service by substituted means. He claims ?I pasted upon the Defendants doors?In my view, this is not good service’. The affidavit of service must be a proper affidavit of service proving due service of the

writ… A service on a company as it is provided must be at the Registered office of the Company and it is therefore, bad and ineffective if it is done at a Branch office of the company? That is why I am of the view that the affidavit of service by substituted means sworn to by the bailiff is not enough to prove that the 2nd Appellant was duly served with the originating summons….The affidavit sworn to by the bailiff could not be sufficient proof of service of the process of the 2nd Appellant?Therefore, based on the available evidence, the 2nd Appellant had shown that it had not been served with the originating process.”

Now, was the Court below right when it held in the ruling appealed against that the service of the originating processes on the Appellant by substituted means to wit: by posting was proper and thus valid? The laws governing due service of originating processes on incorporated bodies, such as the Appellant, a limited Company, are the provisions of Section 78 of the Companies and Allied Matters Act 2004 and Order 8 of the Lagos State High Court (Civil Procedure Rules).

By Section 78 of the Companies and Allied Matter Act, Cap C20 LFN, 2004, it is provided thus:

?A Court process shall be served on a company in the manner provided by Rules of Court and any other document may be served on a company by leaving it at, or sending it by post to, the registered office or head office of the company.”

By Order 8 Rules 3 and 4 of the High Court of Lagos State (Civil Procedure) Rules, 2012, regulating service of Court?s process outside Nigeria and service of foreign processes, it is provided thus:

?3. Where leave is granted to serve an Originating Process in any foreign country with which no convention in that behalf has been made, the following procedure may be adopted:

(a) the process to be served shall be sealed with the seal of the Court for service out of Nigeria, and shall be transmitted to the Solicitor General of the Federation by the Chief Registrar, together with a copy translated into the language of that country if not English, and with a request for its further transmission to the appropriate authority in that country. The request shall be in Form 7 with such modifications or variations as circumstances may require;

(b) a party wishing to serve a process under this Rule shall file a praecipe in Form 8 with such modifications or variations as circumstances may require;

(c) a certificate, declaration, affidavit or other notification of due service transmitted through diplomatic channels by a Court or other appropriate authority of the foreign country, to the Court, shall be deemed good and sufficient proof of service;

(d) where a certificate, declaration, affidavit or other notification transmitted as aforesaid states that efforts to serve a process have failed, a Judge may, on an ex-parte application, order substituted service whereupon the process and a copy as well as the order for substituted service shall be sealed and transmitted to the Solicitor General of the Federation together with a request in Form 9 with such modifications of variations as circumstances may require: Provided that notwithstanding the foregoing provision a Claimant may with leave of a Judge serve any originating process by courier.

(e) Nothing herein contained shall in any way affect any power of a Judge in cases where lands, funds, choses in action, rights or property within

the jurisdiction are sought to be dealt with or affected. The Court may, without assuming jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceedings with a view to such person having an opportunity of claiming, opposing or otherwise intervening.

4. (1) Where leave is granted or is not required in a civil suit and it is desired to serve any process in a foreign country with which a Convention in that behalf has been made, the following procedure shall, subject to any special provisions contained in the Convention, he adopted:

(a) the parry desiring such service shall file in the Registry a request in Form 10 with such modifications or variations as circumstances may require and the request shall state the medium through which it is desired that service shall be effected, either:

(I) directly through diplomatic channels or

(ii) through the foreign judicial authority;

(b) the request shall be accompanied by the original document and a translation thereof in the language oldie country in which service is to be effected, certified by or on behalf of the person

making the request, and a copy of each Ibr every person to be served and any further copies which the Convention may require (unless the service is required to be made on a Nigerian subject directly through diplomatic channels in which case the translation and copies thereof need not accompany the request unless the Convention expressly requires that they should do so);

(c) the documents to be served shall be sealed with the seal of the Court for use out of the jurisdiction and shall be forwarded by the Chief Registrar to the Permanent Secretary, Federal Ministry of Foreign Affairs for onward transmission to the foreign country;

(d) an official certificate, transmitted through the diplomatic channel by the foreign judicial authority, or by a Nigerian diplomatic agent to the Court, establishing the fact and the date of the service of the document, shall be deemed to be sufficient proof of service within the requirements of these Rules.

(2) A Judge, in granting leave to serve a process out of jurisdiction under this order, may upon request therefore in appropriate cases direct that courier shall be used by the party affecting service.

My Lords on a literal construction of the above provisions, it would appear that under the Rules of the Court below, originating process meant for service outside Nigeria would be transmitted to the Solicitor General of the Federation by the Chief Registrar for further transmission to the appropriate authority in the foreign Country for service on the party there. I am unable to read into the above provision any burden on a party alleging non-compliance with this requirement to prove the existence of a convention between the foreign country, in which the process is intended to be served and Nigeria. It would therefore, suffice to state that the above rules, though handmaids of justice and not intended in any way or manner to obfuscate, are not made for fun but are meant to be complied with for the smooth and effective administration of justice before the Court below. A breach of these rules should render such service improper and ineffective! See Order 8 Rule 3 (a) of the High Court of Lagos State (Civil Procedure) Rules, 2012. See also Owners of MV ?MSC AGATA? & Anor V. Nestle Nigeria Plc. & Anor (2012) LPELR – 9851 (CA), where Ogunwunmiju

JCA., had succinctly put this principle of law inter alia thus:

?Rules of Court and statutory provisions regulating the commencement of an action must be obeyed. Rules of Court are part of machinery of justice evoked by the Courts to regulate their proceedings and they have the same force of law as subsidiary legislation. Thus, where a rule of Court stipulates the doing of an act or taking of a procedural step as condition precedence to the hearing of a case, such rule must be strictly adhered to.”

See also First City Monument Bank Plc. V. Nigerian Institute of Medical Research (2008) 16 NWLR (Pt. 1168) 479; Mudasiru V. Abdulahi (2009) 17 NWLR (Pt. 1171) 547.

Happily, these provisions have come up for interpretation several times before the Courts and had emphatically been pronounced upon and the position of the law appears to have been well settled and therefore, a peep into the minds of the Courts on this issue would at this stage be apposite. There is the real issue in this appeal whether service on a Company of originating processes can be effected by substituted means, to wit by posting through courier service to the

Appellant?s address? This is where case law comes to the rescue for a clear interpretation of the relevant Statutes and Rules of Court. In law the only service of originating processes on a company recognized and permitted is by compliance with the provisions of Section 78 of the Company and Allied Matters Act 2004 and the relevant Rules of the affected Court and no other methods or means will suffice. See Kalu Mark & Anor Vs. Gabriel Eke (2004) 5 NWLR (Pt. 865) 54 @ p. 79, where Musdapher JSC, had explained succinctly this position of the law inter alia thus:

?Service on a company as is provided must be at the Registered Office of the Company and it is therefore, bad and ineffective if it is done at a Branch office of the company…. That is why I am of the view that the affidavit of service by substituted means sworn to by the bailiff is not enough to prove that the 2nd Appellant was duly served with the originating summon….I cannot see the necessity of making a substituted service on a Corporation such as the 2nd Appellant…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.”

;