AHMED DASUKI v. ALIYU DASUKI & ORS
(2018)LCN/12176(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/S/161/2017
RATIO
COURT AND PROCEDURE: THE DOCTRINE OF WAIVER
“The position of the law is that under the doctrine of waiver of irregularity, the party complaining must take steps to set aside the irregularity within a reasonable time and before taking further steps in the proceedings. Unconditional appearance, as in the instant case let, alone the acceptance of service in open Court without an objection several months before amounts to waiver of the irregularity. SeeONIAH vs. ONYIA (1989) 1 NWLR (PT. 99) 514; KEBBE vs. GARBA MAITUMBI (1999) 5 NWLR (PT. 601) 127 AT 131; CARRIBEAN TRADING AND FIDELITY CORP. vs. NNPC (1992) 7 NWLR (PT. 252) 161.” PER FREDERICK OZIAKPONO OHO, J.C.A.
COURT AND PROCEDURE: FUNCTUS OFFICIO
“However, the general position of the law is that once a Court has delivered its decision on a matter, whether obtained by consent of the parties on the matter or on its merit, it becomes functus officio with regards to that matter. What this means is that a Court cannot sit as an Appellate Court over its decision; once it has decided a matter, it ceases to be seised of it, and it cannot re-open it for any purpose whatsoever safe for the correction only of clerical mistakes. See UKACHUKWU vs. UBA (2005) 18 NWLR (PT. 956) 1; OGBORU vs. IBORI (2005) 13 NWLR (PT. 942) 319; SUN INSURANCE vs. LMBS LTD. (2005) 12 NWLR (PT 940) 608.” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
AHMED DASUKI Appellant(s)
AND
1. ALIYU DASUKI
2. AMINA DASUKI
3. BILKISU DASUKI
4. UPPER SHARIA COURT 1 SOKOTO
5. UPPER SHARIA COURT 1 JUDGE (IBRAHIM ABUBAKAR) Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the Ruling of the High Court of Sokoto State sitting at Sokoto delivered on the 5th day of October 2017 in suit No. SS/M.334/2016 Coram: MALAMI UMAR DOGON DAJI, J against the Appellant wherein his suit in SS/M151/2015 was struck out for reason of improper service of processes on the 1st – 3rd Respondents herein following an Objection raised to that effect by the said 1st – 3rd Respondents.
The facts leading to this Appeal originally emanated from the decision of this Court made on the 4th December, 2014 in Appeal No. CA/S/41/2013 wherein the Appellant’s suit for the issuance of writs of Prerogative Orders of Certiorari to quash the 1st – 3rd Respondent’s case in USC/1/1SK/49/2009 and sending same back to the trial High Court for hearing de novo by another judge other than BELLO DUWALE, J.
The Suit No: SS/M/151/2015 was eventually assigned to D. B. SAMBO, J (now Retired) and after his retirement, it was re-assigned to M. U. DOGON DAJI, J who delivered his ruling on the application/objection filed by the 1st – 3rd Respondents in Suit No. SS/M334/2016 on the 5th October, 2017 and whilst doing so, got the entire matter struck out for want of Jurisdiction rather than setting aside service on the 1st ? 3rd Respondents simplicita, despite the fact that the 4th and 5th Respondents who were served, never raised any objection to the competence of the suit against them.
Dissatisfied with the Ruling of the trial Court, the Appellant has once again filed a notice of appeal to this Court on the 9th day of October, 2017. There are five (5) grounds of Appeal filed.
ISSUES FOR DETERMINATION:
A total of two (2) issues were nominated for the determination of this Appeal by the Appellant as follows:
“1. Whether the learned trial judge was right to have set aside the order of the Court made on the 16th June, 2016 for substituted service on the 1st – 3rd Respondents? (Grounds 1 and 3).
2. Whether the learned trial judge was right to have struck out the Appellant’s suit No. SS/M/151/2015 simply on grounds of alleged defective service on the 1st – 3rd Respondents? (Grounds 2, 4 and 5)”
On the part of the 1st -3rd Respondents, there is nominated only an issue which reads thus; “Whether having regards to the facts and circumstances of the case as presented before the Court below, the Court was correct in law when it set aside the order made on 16th day of June, 2016 for substituted service on the 1st to 3rd Respondents and struck out the substantive action as instituted by the Appellant for lack of proper service.”
It is obvious just by reading the issues nominated for the determination of this Appeal by the two sides to this dispute that they are identical except for the fact that the sole issue nominated by the Respondents is bifurcated in the case of the Appellant. To this end therefore, the issues nominated by the Appellant shall, for comprehensiveness be the basis for the determination of this Appeal. The Appellant’s brief of Argument filed on the 5-12-2017 settled by M. A. SAMBO ESQ., while the 1st to 3rd Respondents’ brief of Argument filed on the 30-5-2018 and deemed filed on the 26-9-2018 was settled by M. A. MUSTAPHA ESQ. At the hearing of the Appeal on the 7-11-2018 learned Counsel adopted their briefs of Argument on behalf of their respective clients and urged the Court to decide the Appeal in their favour.
SUBMISSIONS OF COUNSEL
APPELLANT
ISSUE ONE
Whether the learned trial judge was right to have set aside the order of the Court made on 16th June, 2016 for substituted service on the 1st – 3rd Respondents’.
The submission of learned Counsel under this issue is that the learned trial judge erred in law to have set aside the order of D. B. SAMBO, J (Rtd.) made on the 16th June, 2016 in suit No. SS/M64/2016 where he ordered viz:-
“Accordingly, leave is hereby granted also for applicant to publish the order of this Honourable Court in one of the National Dailies and same deemed proper and substituted service on the 1st to 3rd Respondents’ Application granted”
See page 284 of the records of appeal.
Counsel argued that by their application dated and filed on the 1st December 2016, in Suit No. SS/M334/2016, asking for the setting aside of the order made by D. B. SAMBO, J a period of over 5 months had elapsed after the order of the trial Court in Suit No. SS/M164/2016 was obtained on 16th June, 2016 and the publication duly carried on 27th June, 2016, and the 1st – 3rd Respondents served through their Counsel in open Court on 11th July, 2016.
The contention of Counsel is that the application filed by the 1st – 3rd Respondents at pages 252-275 of the records was filed on 1st December, 2016 and that by the provisions of Order 8 Rule 11 of the Sokoto State High Court (Civil Procedure Rules) 2015, every application to set aside any Ex-parte order on any grounds whatsoever must be filed within seven (7) days or such extended time after the order was obtained.
In view of the explicit provisions of the rules of the Sokoto State High Court of Justice, Counsel further contended that the 1st – 3rd Respondents’ application in suit No. SS/M334/2016 was incurably defective for not including a prayer for extension of time within which they can apply for the order of the Court made ex-parte on the 16th June, 2016 to be set aside. Counsel further argued that the failure of the 1st – 3rd Respondents to apply for extension of time to set aside the said order after the lapse of over five (5) months since it was granted on 16th June, 2016, is fatal to the application itself and deprived the Court of jurisdiction to determine same.
According to learned Counsel, this is in accordance with the trite position of our laws that rules of Court are meant to be obeyed as they are not merely cosmetic. He cited the case of BROAD BANK LTD vs. OLAYIWOLA (2005) NSCQR 594. Again, that any Court process such as the 1st – 3rd Respondents’ motion on notice in Suit No: SS/M334/2016 that is filed in breach of due process of law deprives the Court of jurisdiction to hear same. Counsel cited the cases of MADUKOLU vs. NKEMDILIM (1962) 3 SCNLR 341 and OKORO vs. EGBUOH (2006) 26 NSCQR 1215.
Learned Counsel also submitted that by the provisions of Order 2 Rule 1 (1) and Order 2 Rule 2 (1) of the Sokoto State High Court (Civil Procedure) Rules, 2015, any irregularity may be treated as an irregularity and nothing more and every application to set aside any order of Court made as a result of any irregularity, must be made within a reasonable time and before the party applying has taken any fresh steps after becoming aware of the irregularity.
The contention of Counsel is that the whole action of the Appellant in ensuring service on the 1st – 3rd Respondents was predicated on the competent order of the trial Court made on the 16th June, 2016.
And apart from this fact, he argued that the 1st – 3rd Respondents’ Counsel who appeared for them in Court on 11th July, 2016 applied for and accepted service of the entire motion on notice in the substantive Suit No: SS/M151/2015 on behalf of the 1st – 3rd Respondents. In his further argument, Counsel contended that after receiving and acknowledging receipt of the processes on the 11th July, 2016, Counsel to the 1st – 3rd Respondents did not take any action until 1st December, 2016 when they now filed an application by way of a motion on notice in SS/M334/2016 applying to set aside the order made on 16th June, 2016.
The submission of Counsel in this regard is that an application made after a period of five (5) months after the order Ex-parte was obtained cannot be said to have been filed within a reasonable time as required under Order 2 Rule 2(1) of the Sokoto State High Court (Civil Procedure) Rules, 2015. Counsel urged this Court to so hold. In this connection, Counsel cited the case of ARIK AIR LTD vs. EKEMEZIE (2014) LPELR 22753 (CA); See also the case of WILLIAMS & ORS vs. HOPE RISING VOLUNTARY FUNDS SOCIETY (2001) 34 WRN 171 AT 177 SC.
Counsel therefore urged this Court to hold that in view of the fact that no prayer for extension of time within which the 1st – 3rd Respondents could apply to set aside the trial Court’s order of the 16th June, 2016 was made in their application dated 1st December, 2016, the application was incompetent and the trial Court lacked the jurisdiction to have set aside the order of the Court authorizing service on the 1st- 3rd Respondents by publication. In doing so, Counsel urged this Court to carefully compare the published order of the trial Court made on 16th June, 2016 at pages 258 of the records and the exact order of the Court contained in page 251 and to hold that there was substantial and complete compliance of the order of the Court ordering substituted service by publication on the 1st – 3rd Respondents.
Learned Counsel also contended that the trial Court presided over by M. U. DOGON DAJI, J being a Court of co-ordinate jurisdiction, cannot set aside the order made by the same trial Court presided over by D. B. SAMBO, J. In support of this proposition of the law, he cited the case of DR. BENEDICT IMHAROREBE OMEIKE vs. PHARMACIST BIBIAN AWELE OMEIKE (2013) 13 NWLR (PT. 1371) at 423 where the Court held as follows:-
“A Court does not have the powers to review, alter or set aside the judgment of a Court of co-ordinate jurisdiction. In this case, the trial Court lacked the power to set aside the order made in the judgment in suit No: HEK/41D/2006 because that judgment was delivered by a Court of co-ordinate jurisdiction”.
See also the cases of DEACONESS FLORENCE BOSE AROSO & ORS vs. ENTERPRISE BANK LTD (2015) NWLR (PT. 1476) 306 AT 311; TOMTEC NIGERIA LIMITED vs. FEDERAL HOUSING AUTHORITY (2010) 16 WRN 24 AT 29-30.
Counsel finally urged this Court to apply the principles laid down in the above cases to hold that the trial Court was wrong to have set aside the order of the Court dated 16th June 2016 and the publication itself made on 27th June, 2016 for the following reasons:
1. The application to set aside was filed in breach of the explicit provisions of Order 8 Rule 11 of the Sokoto High Court (Civil Procedure) Rules, 2015 and Order 2 Rule 2 (1) of the same rules of the trial Court.
2. Following 1 above, the 1st – 3rd Respondents’ application in Suit No. SS/M334/2016 filed on 1st December, 2016 was incompetent ab initio and the trial Court has no jurisdiction to determine same and set aside the order in question as no court has jurisdiction to entertain any application filed in breach of due process of law.
3. The order of the Court made on the 16th June 2016 was never proved to have been obtained by fraud, neither was it established to be a nullity or that it occasioned any miscarriage of justice to the 1st – 3rd Respondents.
4. The 1st – 3rd Respondents never formally entered appearance to the Plaintiff’s suit in SS/M151/2015 before filing their application in Suit No: SS/M334/2016 on the 1st December, 2016 contrary to the provisions of order 13 Rules 1 (1) & (2) of the Sokoto State High Court (Civil Procedure) Rules 2015. Order 13 Rule 7 of the same rules of Court, which only permits the trial Court to set aside an originating Court process improperly served on a defendant upon his application and has no powers to strike out the suit for want of proper service simplicita in the manner done in this instance.
Against the backdrop of the foregoing, Counsel urged this Court to resolve this issue in the Appellant’s favour and to set aside the order of the trial Court presided over by M.U. DOGON DAJI, J which set aside the order for substituted service by publication made on the 16th June, 2016 and to hold that the order of substituted service made by the trial Court on 16th June, 2017 was still valid and subsisting.
ISSUE TWO:
Whether the learned trial judge was right to have struck out the Appellant’s suit No: SS/M/151/2015 simply on grounds of alleged defective service on the 1st – 3rd Respondents’
The contention of Counsel under this issue is that the learned trial judge was wrong to have set aside the Appellant’s substantive suit No: SS/M151/2015 after the Court had erroneously set aside the service by substituted service on the 1st – 3rd Respondents as argued under issue one (1) in this Appeal. The further contention of Counsel is that even if the Court’s decision to set aside the service on the 1st – 3rd Respondents was right (which is not conceded), his decision to strike out the entire suit No: SS/M151/2015, which was against the 1st – 3rd Respondents and also the 4th and 5th Respondents, who were duly served is wrong and contrary to extant rules of Court, case law and statutory provisions.
For a start, Counsel contended that the provisions of Order 2 Rule 1 (1) of the Sokoto State High Court (Civil Procedure) Rules, 2015 dealing with irregularities and by virtue of which proceedings, which are treated as irregularities due to reason of form, time, place and manner does not allow for the nullification of such or any document, judgment or order therein. For this reason, Counsel urged this Court to hold that the said provisions of Order 2 Rule 1 (1) could have been called in aid to cure any irregularity that flowed from the alleged improper service on 1st – 3rd Respondents as such irregularity if any, was not enough to have warranted the striking out of the substantive Suit No: 55/M151/2015 for incompetence or for being a nullity.
It was further contended that the failure to comply with the rules of Court (which in any case was not established by the 1st – 3rd Respondents’ application in No: SS/M334/2016), will not be enough to nullify the proceedings but can affect only the thing left undone. Counsel cited the case of BANK OF INDUSTRY LTD & 2 ORS vs. PRINCE MICHAEL ADENIRAN (2015) 17 NWLR (PT. 1487)114 AT 117-118, where this Court held thus;
“A writ of summons may be valid while its service may suffer some defect. In this case, the trial Court’s order setting aside the service of the originating process was proper. But the trial Court was in error when it held that the improper service of the originating process robbed it of jurisdiction to adjudicate on the substantive suit and then proceeded to strike out the suit”.
See also the case of OWNERS MV ARABELLA vs. N.A.I.C. (2008) 11 NWLR (PT. 1097) 182 (SC).
Counsel also submitted that there is a world of difference between improper service and non-service of Court processes on a party. He argued that while non-service amounts to a breach of substantive requirement of the law going to the jurisdiction of the Court, improper service on the other hand, amounts to a breach of procedural requirement which can be regularized. He cited the case of RFG LIMITED & 1 OR vs. SKYE BANK PLC (2013) 4 NWLR (PT. 1344) 251 AT 259.
Learned Counsel also contended that from the facts of this case, it is on record and not in dispute that on the 11th July, 2016 when the Appellant’s Suit No: SS/M151/2015 came up for hearing in Court, the Counsel representing the 1st – 3rd Respondents received service of the originating process on their behalf from the Court Registrar that he accepted and acknowledged service without any objection whatsoever. Counsel therefore urged this Court to refer to the relevant evidence/endorsement made in proof of this service in the case file.
According to Counsel, the law is settled that service of processes on Counsel without any objection is as good as service on a party to the proceedings. He cited the case of VAB PETROLEUM INC vs. MR. MIKE MOMAH (2013) NWLR (PT. 1374) 284 AT 295.
It was also contended that by including a prayer for the striking out of suit No: SS/M151/2015, in their application in Suit No: SS/M334/2016, the 1st – 3rd Respondents were in breach of the provision of Order 23 of the Sokoto State High Court (Civil Procedure) Rules 2015 which has abolished demurrer proceedings and the learned trial judge therefore erred in law to have granted this prayer and struck out the Appellant’s suit in consequence.
Counsel also contended that by proceeding to strike out the Appellant’s Suit No. SS/M151/2015 which had been served on the 4th and 5th Respondents too on alleged ground of improper service on the 1st – 3rd Respondents deprived the Appellant of his right to be heard or a fair hearing to have his Suit No: SS/M151/2015 to be heard on its merit or at all contrary to law. Counsel cited the following cases: OGLI OKO LTD vs. NACB (2008) 34 NSCQR 1057; ALSTHOM vs. SARAKI (2005) 21 NSCQR 185. Counsel urged this Court to allow the Appeal and set aside the ruling of the Court below.
1ST TO 3RD RESPONDENTS:
SOLE ISSUE:
“Whether having regards to the facts and circumstances of the case as presented before the Court below, the Court was correct in law when it set aside the order made on 16th day of June, 2016 for substituted service on the 1st to 3rd Respondents and struck out the substantive action as instituted by the Appellant for lack of proper service.”
Under this issue, learned Counsel for the 1st to 3rd Respondents conceded that service of processes is fundamental to the adjudication process that any defect in the service of originating processes will rob the Court of its jurisdiction to entertain the matter before it. He cited the case of LAI MUHAMMED vs. AFE BABALOLA (2011) LPELR 8973 CA. Taking its bearing from this principle of law, Counsel contended that what is to be served on the 1st to 3rd Respondent in Suit No: SS/M.151/2016 was an application for judicial review filed by the Applicant at the Court below under Order 37 of High Court Rules 2015; Rule 31 and 2, Rule 51 and 2, Rule 61 and 2. He said that the application, which is to be served on the Respondent, shall be accompanied with the following; an affidavit of facts relied upon; a statement setting the Names and description of the applicant, the relief sought and the grounds on which the relief are sought; and a written address.
The submission of Counsel is that the substituted service effected on the Respondents by means of the publication in the Daily Trust newspaper by the mere publishing of the Court order for substituted service granted cannot not be regarded as proper service of Court processes on the 1st to 3rd Respondents and that this has the effect of rendering the substantive case of the Appellant for being incompetent. The argument of Counsel is that by Order 37 of the Sokoto State High Court (Civil Procedure) Rules 2015, the 1st to 3rd Respondents were to be served with all the originating processes and that it was clear that none of the documents that are to be served along with on the Respondents were reflected as per the publication made in the newspaper.
The submission of Counsel is that without those documents accompanying the originating process the service on the 1st to 3rd Respondents cannot be said to be proper service and that this has the effect of rendering the whole suit incompetent and liable to be struck out. He argued that the law is trite and well settled on the fact that service of the originating process or hearing notice constitutes the foundation on which the whole structure of litigation is built and that in its absence, the entire proceedings will be rendered void and that any decision reached thereon is a nullity.
On the question of Courts eligibility in assuming and exerting jurisdiction over matters brought before it Counsel argued that the condition precedent are clearly specified as laid down in the celebrated case of MADUKOLU vs. NKEMDILIM (Supra). He said that the requirements include the fact that the case must come before the Court, initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. Counsel urged this Court to resolve this sole issue in favour of the 1st to 3rd Respondents and dismiss this Appeal.
RESOLUTION OF APPEAL
This appeal is a necessary fall out of the ruling of the High Court of Sokoto State delivered on the 5th day of October, 2017 wherein the learned trial Court struck out the Appellant’s suit No. SS/M151/2015, which suit was seeking for the grant of the Prerogative Orders of Certiorari to bring the proceedings, orders, records and ruling of an inferior Court to wit: the Upper Shariah Court 1 Sokoto in suit no: USC/1/1SK/49/2009 for purposes of its being quashed and sending same back to be tried de novo by another judge on the grounds that the proceedings was pre-emptive, abuse of Court process, lacking in good faith and for want of jurisdiction regard being had to multiplicity of actions and proceedings and the pendency of suits over the same subject matter before the Sokoto State High Court of Justice. See the Appellant’s entire suit No: SS/M151/2015 at pages 7-240 of the records of appeal.
The gravamen of the Appellant’s suit in SS/M151/2015 is that it sought to quash the direct criminal complaint in USC/1/CR/49/2009 against the Appellant for offences bothering on criminal breach of trust and mischief punishable under Sections 177 and 339 of the Sharia Penal Code Law. Meanwhile, the Appellant on the other hand challenged from the very start the competence of the Direct Criminal Compliant which he alleged was only used as a special purpose instrument to harass, intimidate and blackmail the Appellant.
It would be recalled that at the instance of the Appellant, Suit No: SS/M27/2013 was initially filed against the Respondents to quash the entire criminal proceedings in USC/1/SK/49/09 on the basis of which a bench warrant was issued against the Appellant. The said suit No: SS/M27/2013 was eventually struck out by the trial High Court presided over by BELLO DUWALE, J on technical grounds and the Court ordered a retrial, consequent upon which the Appellant initially filed an ex-parte application in Suit No: SS/M/123/2015.
After the grant of leave by the trial Court pursuant to the Appellant’s ex-parte application for the in SS/M123/2015 (page 210-210 of the records of appeal refers), the Appellant was ordered to serve the Respondents with the substantive motion on notice. As a result of this order, the Appellant’s Counsel initially effected service of the motion on notice on the 1st – 3rd Respondents’ long standing Counsel, J. C. Shaka Esq., who refused service and later returned the processes to the trial Court Registry. The trial Court thereafter ordered that the 1st – 3rd Respondents be served personally with the processes of the lower Court.
On the 3rd November, 2015 in suit No: SS/M153/2015 (pages 1-6) the trial Court granted an order to issue and serve 1st – 3rd Respondents with the requisite processes at their residence No. 52, Jose Martins Street, Asokoro, Abuja. The Bailiff of the Court made several efforts to effect service of the processes on the 1st – 3rd Respondents at their aforesaid address to no avail as the security personnel he met in the house informed him that there was nobody in the house at that particular time he visited in his attempt to effect personal service on them.
This led to the filing of another application by the Appellant for the review of the earlier order of substituted service on the 1st – 3rd Respondents by publishing the processes of the trial Court, in one of the National Dailies vide the application dated 11th June, 2016 in Motion No: SS/M164/2016 (please see page 241-250 of the records of appeal). This application was granted by D. B. SAMBO, J on 16th June 2016 (see page 251 of the records of appeal) and the Appellant was granted leave to publish the order of the trial Court in one of the National Dailies and for such service to be deemed as proper service on the 1st – 3rd Respondents.
The Appellant’s position was that the explicit and unambiguous order of D. B. SAMBO, J was duly complied with when the order of the Court was published in the Daily Trust Newspaper Edition of Monday 27th June, 2016 (Please see page 258 of the records of appeal).
On the return date in Court, one E. I. Ogiza, Esq., of Counsel, ostensibly at the instructions of the 1st – 3rd Respondents, appeared in Court on behalf of the 1st – 3rd Respondents. This Counsel from the Law Firm of Ummaru Shinkafi & Co, announced his appearance for the 1st – 3rd Respondents, and the Court made available to him a copy of the motion on notice in suit No: SS/M151/2015 as requested and the matter was thereafter adjourned for further hearing (see the supplementary records of appeal).
When D. B. SAMBO, J disengaged from service upon being retired, the case file was re-assigned to M. U. DOGON DAJI, J and on the 1st December, 2016, the 1st – 3rd Respondents filed a motion on notice seeking to set aside the order of the trial Court presided over by the D. B. SAMBO, J dated 16th June, 2016 in motion No: SS/M164/2016. This application which can be found at pages 252-275 of the records of appeal was filed over 5 months after the grant of the order being sought to be set aside and no leave to apply to set aside this said order out of time was included in the 1st – 3rd Respondents’ said application.
On the 4th May, 2017, the 1st – 3rd Respondents’ application was heard and adjourned initially to 22nd May, 2017 for ruling. Ruling was however delivered on the 5th October, 2017. The trial Court in its ruling proceeded to set aside its order of 16th June, 2016 along with the service effected on the 1st – 3rd Respondents by publication and went ahead to strike out the Appellant’s suit No. SS/M151/2015 for grounds of incompetence (please see pages 285-299 of the records of appeal for the proceedings and ruling of the trial Court).
This is a synopsis of the background events that led to filing of this Appeal. The Appellant is of the view that its suit was never heard on its merits, before it was struck out for alleged incompetence. The first of two issues nominated by the Appellant for the determination of this Appeal is whether Court below was right to have set aside the order of the Court made on 16th June, 2016 for substituted service on the 1st to 3rd Respondents. It would be recalled that in the M. U. DOGON DAJI, J decision of the 5-10-2017 the Court setting aside the order of D. B. SAMBA, J (Rtd.) made on the 16-6-2016 in suit No: SS/M64/2016 where the Court granted the Appellant’s order to publish in the National newspaper by way of substituted service on the 1st to 3rd Respondents (page 284 of the records of appeal) a period of over five (5) months had elapsed. The order of the trial Court in Suit No: SS/M164/2016 was obtained on 16-6-2016 and the publication duly carried on the 27-6-2016, and the 1st – 3rd Respondents served through their Counsel in open Court on 11-7-2016.
The settled position of the law is guided by the provisions of Order 5 Rules 2(1) of the Sokoto State High Court (Civil Procedure Rules) 2015, regulating the procedure for setting aside any steps taken by the Court due to reasons of irregularity. The Order provides thus;
“An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”
Perhaps, the pertinent question to address at this stage is whether it was proper for the Court below, assuming and for purposes of arguendo that some irregularity was spotted, to have set aside the order of the Court made on the 16-6-2016 in suit No: SS/M164/2016, which ordered the service on the 1st to 3rd Respondents by publication and which was carried out on the 27-6-2016, while the said 1st to 3rd Respondents were in addition served through their Counsel in open Court on 11-7-2016 without any objection?
It would be recalled that the said order of Court below, setting aside the Court’s order was not made until the 5-10-2017, a period of almost five (5) months and also at a time when it pretty obvious that the said 1st to 3rd Respondents have taken steps having in addition to being served by substituted means: to wit Publication in the Newspapers also openly accepting physical service through their Counsel in open Court. The position of the law is that under the doctrine of waiver of irregularity, the party complaining must take steps to set aside the irregularity within a reasonable time and before taking further steps in the proceedings. Unconditional appearance, as in the instant case let, alone the acceptance of service in open Court without an objection several months before amounts to waiver of the irregularity. SeeONIAH vs. ONYIA (1989) 1 NWLR (PT. 99) 514; KEBBE vs. GARBA MAITUMBI (1999) 5 NWLR (PT. 601) 127 AT 131; CARRIBEAN TRADING AND FIDELITY CORP. vs. NNPC (1992) 7 NWLR (PT. 252) 161.
The clear and simple facts of this case is that the whole action of the Appellant in ensuring service on the 1st – 3rd Respondents was predicated on the competent order of the trial Court made on the 16-6-2016 and that the 1st – 3rd Respondents’ Counsel who appeared for them in Court on 11-7-2016 applied for and accepted service of the entire motion on notice in the substantive Suit No: SS/M151/2015 on behalf of the 1st – 3rd Respondents, without a protest. Having done that on the said 11-7-2016, the 1st – 3rd Respondents did not take any action until 1-12-2016 when they filed an application by way of a motion on notice in SS/M334/2016 applying to set aside the order made on 16-6-2016.
On the question of whether the trial Court presided over by M. U. DOGON DAJI, J. being a Court of co-ordinate jurisdiction, can have its orders set aside by the same trial Court presided over by D. B. SAMBO, J learned Appellant’s Counsel cited in support, the case of DR. BENEDICT IMHAROREBE OMEIKE vs. PHARMACIST BIBIAN AWELE OMEIKE (2013) 13 NWLR (PT. 1371) at 423 where the Court held as follows:-
“A Court does not have the powers to review, alter or set aside the judgment of a Court of co-ordinate jurisdiction. In this case, the trial Court lacked the power to set aside the order made in the judgment in suit No: HEK/41D/2006 because that judgment was delivered by a Court of co-ordinate jurisdiction”.
See also the cases of DEACONESS FLORENCE BOSE AROSO & ORS vs. ENTERPRISE BANK LTD (2015) NWLR (PT. 1476) 306 AT 311; TOMTEC NIGERIA LIMITED vs. FEDERAL HOUSING AUTHORITY (2010) 16 WRN 24 AT 29-30.
However, the general position of the law is that once a Court has delivered its decision on a matter, whether obtained by consent of the parties on the matter or on its merit, it becomes functus officio with regards to that matter. What this means is that a Court cannot sit as an Appellate Court over its decision; once it has decided a matter, it ceases to be seised of it, and it cannot re-open it for any purpose whatsoever safe for the correction only of clerical mistakes. See UKACHUKWU vs. UBA (2005) 18 NWLR (PT. 956) 1; OGBORU vs. IBORI (2005) 13 NWLR (PT. 942) 319; SUN INSURANCE vs. LMBS LTD. (2005) 12 NWLR (PT 940) 608.
This notwithstanding, the law also says that Courts of record have the inherent jurisdiction to set aside their Judgments, decisions or orders, in appropriate cases. When for example;
1. The Judgment is obtained by fraud or deceit either in the Court or by one or more of the parties;
2. The Judgment is a nullity;
3. It is obvious that the Court was misled into giving Judgment under a mistaken belief that the parties consented to it;
4. The Judgment was given in the absence of jurisdiction;
5. The proceedings adopted was such as to deprive the decision or Judgment of the character of a legitimate adjudication; or
6. Where there is fundamental irregularity.
See also the cases of ALAO vs. ACB (2000) 9 NWLR (PT 672) 264; TOMTEC (NIG.) LTD vs. FHA (2009) 16 NWLR (PT 1173) 358 SC; and JEV vs. IYORTYOM (Supra). See the case of KALU MARK & ANOR vs. GABRIEL EKE (2004) LPELR-1841 (SC), page 24, paras. C-D, where the Supreme Court held thus:
“But, however, if the Judgment is a nullity, the Court which made it can set it aside on a motion suo motu or on an application by any party affected by it. The law is settled that any Court of record including the Supreme Court has the inherent jurisdiction to set aside its own judgment given in any proceeding in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of the Court. See SKENCONSULT (NIG.) LTD vs. UKEY (Supra). Where such a judgment is a nullity a person affected by it is therefore entitled ex debito justitiae to have it set aside. The Court can set it aside suo motu and the person affected may apply by motion and not necessarily by way of appeal.”
The important thing to note however, is that the order of Court made on the 16-6-2016 was never proved to have been obtained by fraud, neither was it established to be a nullity or that it occasioned any miscarriage of justice to the 1st to 3rd Respondents.
In respect of the second issue dealing with whether the learned trial judge was right to have struck out the Appellant’s suit No: SS/M/151/2015 simply on grounds of alleged defective service on the 1st to 3rd Respondents. Before resorting to the action of striking out the entire suit based on ground of defective service on three (3) out of five (5) parties, the proper thing that should have operated on the minds of the Court is to have cross checked whether the other two (2) parties had been properly served and if not, whether they have registered any complaints bordering on the question of service at all. This was of course, clearly not done in this case.
However, the position of the law is governed by the provisions of Order 5 Rule (2) of the Sokoto State High Court (Civil Procedure) Rules, 2015 dealing with irregularities and by virtue of which proceedings, which are treated as irregularities due to reason of form, time, place and manner and which failure does not have to lead to a nullification of such suit, but rather treated as an irregularity. See the case of BANK OF INDUSTRY LTD & 2 ORS vs. PRINCE MICHAEL ADEWALE ADENIRAN (2015) 17 NWLR (PT. 1487)114 AT 117-118, where this Court held thus;
“A writ of summons may be valid while its service may suffer some defect. In this case, the trial Court’s order setting aside the service of the originating process was proper. But the trial Court was in error when it held that the improper service of the originating process robbed it of jurisdiction to adjudicate on the substantive suit and then proceeded to strike out the suit”.
See also the case of OWNERS MV ARABELLA vs. N. A. I. C. (Supra) cited by learned Appellant?s Counsel. I am in agreement with learned Appellant’s Counsel on the fact that there is indeed a world of difference between improper service and non-service of Court processes on a party. The difference is that while non-service amounts to a breach of substantive requirement of the law striking at the question of the Court’s jurisdiction, improper service on the other hand, amounts to a breach of procedural requirement, which can be regularized. See this Court’s decision on the subject per OGUNWUNMIJU, JCA in the case of RFG LIMITED & ONE OR vs. SKYE BANK PLC (2013) 4 NWLR (PT.1344) 251 AT 259.
Arising from the foregoing, this Appeal succeeds per force and it is accordingly allowed. Consequently, the Ruling of the High Court of Sokoto State sitting at Sokoto delivered on the 5th day of October 2017 in suit No. SS/M.334/2016 Coram: MALAMI UMAR DOGON DAJI, J. against the Appellant wherein his suit in SS/M151/2015 was struck out is HEREBY set aside. In addition, the case file is remitted to the Chief Judge of Sokoto State for re-assignment to another judge of his choice for a trial de novo. Cost of this action is assessed as N50,000.00 against the 1st to 3rd Respondents in favour of the Appellant.
AMINA AUDI WAMBAI, J.C.A.: I had the privilege of reading the draft judgment of my learned brother, Fredrick O. Oho, JCA who has admirably dealt with the issues in this appeal. I agree with the reasoning that the trial judge was in error to have struck out the suit on the complaint of improper service of the processes. I also agree with the conclusion that the appeal is meritorious and abide the order remitting the case back to the Chief Judge for re-assignment to another judge for trial de novo.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance the lead Judgment just rendered by my learned Brother Justice Frederick O. Oho. I agree that the Appeal succeeds per force and is hereby allowed. Accordingly, the Ruling of Sokoto State High Court in Suit No. SS/M/151/2015 delivered on 5th October, 2017 is hereby set aside. I abide with all the consequential orders therein.
Appearances:
M. A. Sambo, Esq. For Appellant(s)
M. A. Mustapha, Esq. for 1st to 3rd Respondents. For Respondent(s)
