BULLET INTERNATIONAL NIGERIA LTD. V. THE HONOURABLE MINISTER, FEDERAL CAPITAL TERRITORY, ABUJA & ANOR
(2011)LCN/4230(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of January, 2011
CA/A/240/07
RATIO
WHETHER WHERE IT IS PRACTICALLY IMPOSSIBLE TO EFECT PERSONAL SERVICE ON A PARTY WHO IS A CORPORATE SOLE OR GOVERNMENT AGENCY, APPLICATION FOR SUBSTITUTED SERVICE OUGHT TO BE MADE
Rules of Court are meant to be obeyed; they are not made for the fun of making rules. Where the rules provide for personal service, nothing short of that is acceptable, unless it becomes practically impossible to effect such service personally. Now, looking at the Respondents, is it practicable to effect service on each of them personally? The 1st Respondent is a Minister in the Government of Nigeria, in charge of the Federal Capital Territory. Can he be served personally? In ATTORNEY GENERAL OF EKITI STATE V. DARAMOLA (2003) 10 NWLR (PT.827) 104, the Supreme Court observed that, the Attorney General, being a Defendant in the case where Ekiti State was accused of disobeying Court order ought to have been properly served with the committal processes. In MILITARY GOVERNOR OF KWARA STATE V. AFOLABI (1991) NWLR (Pt.196) 212 at 227 paragraphs F-G, the Court of Appeal, per Ogundare, JCA (as he then was) held:- “The notice of motion and affidavit and grounds for committal for contempt committed ex-facie curia must be served personally on the person sought to be committed provided that the Court may dispense with personal service where the justice of the case demands it, which is not the case in the instant as there was no application for substituted service.Learned counsel for the Appellant submitted that personal service by hand delivery is impossible when the party to be served is a corporate sole or Government Agency. According to the learned counsel, service on senior or specified officers of such corporate sole or agency constitutes proper personal service. Learned counsel refers to the Minister as corporate sole and contends that service on the Chief legal officer in the Legal Services Department of the Federal Capital Development Authority is personal service on the Minister of FCT. The Supreme Court in the case of the MILITARY GOVERNOR OF KWARA STATE V. AFOLABI (supra), held that the Military Governor who is also corporate sole, ought to have been served personally. The Apex Court perhaps knew that it is difficult to serve people in authority in this country and that is why it concluded that where there are difficulties in effecting such service, the Court can dispense with such service provided there is application for substituted service. From this authority therefore, it is my firm view that the lower court was right when it reached a conclusion that the 1st Respondent was not properly served with the committal processes, since he was not personally served, and there was no application for substituted service for the Court to rely upon in dispensing with personal service. PER PAUL ADAMU GALINJE, J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
BULLET INTERNATIONAL NIGERIA LTD. Appellant(s)
AND
1. THE HONOURABLE MINISTER FEDERAL CAPITAL TERRITORY, ABUJA
2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY, ABUJA Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of the Federal Capital Territory Abuja which was delivered on the 5th day of June, 2007, by the Chief Judge of FCT, Hon. Justice L.H. Gummi.
By a motion ex parte dated 11th day of May 2007, and filed on the 14th of May 2007, the Appellant prayed for an Order of interim injunction restraining the Respondents jointly and severally or through their agencies including the Department Control from further entry, resort to self help, forcible ejection of the Appellant or howsoever demolishing or tempering with any building structures, machinery or equipment erected or affixed at Plot 4 Shehu Shagari Way, Central Area, Abuja, pending the determination of the motion on notice for interlocutory injunction.
The Learned Chief Judge of the FCT heard the motion ex parte, and granted same in terms of the reliefs sought therein on the 14th of May 2007, the date the motion was filed.
Subsequently the Appellant brought a motion on notice dated and filed on the 22nd of May 2007 in which it sought for the following reliefs:-
“1. An order committing the Respondents/Contemnors to prison for flagrant disobedience of the order of interim injunction made by this Court on the 14th day of May, 2007 restraining them from proceeding to forcibly eject the Applicant from or demolish their structures on the Plot of land comprising Plot 752/753 known as No, 4 Shehu Shagari Way Central Business District, Abuja.
2. And for such further orders as the Court may deem fit to make in the circumstances.
The grounds upon which the application was made, as set out in the motion paper are as follows:-
i. This Court made an order of interim injunction on 14/5/07 restraining the forcible eviction of the Applicant and demolition of their building structure, plants and equipment at their construction yard being Plot 4 Shehu Shagari Way, Central Area, Abuja,
ii. The said order was promptly served and/or brought to the attention of the contemnors on the same 14th May, 2007, through their staff and/or agents/working in their offices, as borne out of the Bailiffs affidavit of service contained in the Court’s case file.
iii. The said interim order was also pasted conspicuously on the walls of the fence and brought to the attention of the contemnors when they mobilized to commence demolition of the res in the early hours of Tuesday, 15th May, 2007. Photographs to that effect shall be founded upon.
iv. Despite full knowledge of the said order of the Court, the Respondent contemnors proceeded as early as 6.00 am in the morning of Tuesday, 15th May, 2007 to throw out the claimant and demolish its buildings/premises, etc, in their desperate bid to circumvent the said order and foist a fait accompli on the Court.
This application was heard by the Learned Chief Judge. In a reserved and considered ruling which was delivered on the 5th of June 2007, His Lordship came to the conclusion that even if service of processes on the contemnors were defective, the lower court on its own motion can proceed under order 41 Rule 3 of the Rules of that court to make an order of committal against a person guilty of contempt of court. Consequently the Learned Chief Judge made the following order:-
“That the agents or persons who took part in the demolition of the Applicant’s building by whatever named (sic) called are hereby ordered into the dock to explain or show cause why they should not be committed to prison for disobedience to an interim order of this Court made on the 14th of May, 2007.”
The Appellant’s notice of appeal dated and filed on the 19th of June 2007 contains seven grounds of appeal. In line with the relevant Rules of this Court, parties filed and exchanged briefs of argument.
The Appellant formulated three issues for the determination of this appeal. They read as follows:-
“1. Whether service of the motion for committal on senior officers of the Respondents, who are corporate sole/persons in the service of government, satisfies the requirement for “personal service” envisaged in the relevant Rules of Court.
2. Whether the lower court was right to reject service of the motion for committal on the Respondents despite non-joinder on this issue of fact in the affidavit of the parties.
3. Whether the lower court was right to exonerate and discharge the 2nd Respondent/Contemnor after initially upholding service of the flouted order and committal processes on it.”
For the Respondents, two issues have been formulated for the determination of this appeal. They are hereunder reproduced as follows:-
“1. Whether the lower court was wrong to have held that the service of the committal processes on the Respondents were not done in line with the requirement of the law.
2. Whether the lower court was wrong to have discharged the 2nd Respondent of the contempt allegation.”
The facts of this case as disclosed in the briefs of argument filed by parties are that, Plot No.4 along Shehu Shagari Way, Central Business District, Abuja belongs to the 2nd Respondent. This Plot was temporarily occupied by Aprofim Construction Ltd as construction site office while it was handling the construction of phase 1 of the Federal Secretariat. Upon the revocation of the contract which was being executed by Aprofim and subsequent award of same to the Appellant, the latter took over the site as construction site office to facilitate the execution of the contract. After the completion of the contract the Appellant refused to vacate the land despite the letter to do so by the Respondents dated 18th December 2006 and a quit notice dated 16th January 2007. Following the refusal to quit by the Appellant the Respondents threatened to move to site and commence demolition of the Appellant’s property. The Appellant then commenced action against the Respondents by filing an originating summons which was accompanied by motion ex parte and subsequently obtained an order of interim injunction restraining the Respondents from demolishing its structures on the 14th of May 2007. On the 15th of May 2007, the Respondents moved to site and commenced the demolition of the Appellant’s property. As a result of the action of the Respondents, the Appellant commenced contempt proceedings against the Respondents. It is the ruling delivered in the motion on notice for committal of the Respondents that is subject of this appeal.
The issues formulated by both parties are similar. I will therefore consider the appeal on the three issues formulated by the Appellant. Mr. Anachebe, learned counsel for the Appellant who also settled the Appellant’s brief of argument argued issues 1 and 2 together. On these issues, learned counsel submitted that the injunction order was properly served on the Respondents in accordance with the mode of service prescribed for persons in the service of government under Order 11 Rules 6 of the FCT High Court (Civil Procedure) Rules 2004. Learned counsel made reference to a portion of the ruling of the lower court where the Learned Chief Judge acknowledged that in the normal cause of things service on a Defendant of a Court Order can be done in accordance with Order 11 Rule 6 of the Rules of the lower court, and contended that the Learned Chief Judge did uphold service of the restraining order on the Respondents and that that part of the judgment remains unchallenged and therefore accepted as undisputed. In aid learned counsel cited ODIASE V. AGHO (1972) 3 SC 73, MUSA V. INEC (2002) 11 NWLR (PT.778) 223.
In a further argument, learned counsel submitted that personal service as envisaged by Order 11 Rule 6 includes a situation where processes are served on a third party who eventually handed it to the person meant to be served. In aid learned counsel cited PANACHE COMMUNICATION LTD. V. AIKHOMO (1994) 2 NWLR (PT.327) 420, RIVERS STATE GOVT. V. SPECIALIST/KONSULT (2005) 7 NWLR (PT.923) 145.
Still in argument, learned counsel referred to three elements of a breach of injunctive order as laid down in the case of ONAGORUWA V. ADENIJI (1993) 5 NWLR (PT.293) 377 and submitted that the lower court found as a fact in its ruling that the terms of the subject order of injunction were unambiguous and same had been broken, however the lower court’s adjudication was only narrowed to issue of service.
Learned counsel argued that the Respondents are corporate sole entities and can only be served in accordance with Order 11 Rule 8 of the FCT High Court (Civil Procedure) Rules, which provides for service through their director’s secretary or other principal officer or by leaving it at the corporate office of the Respondents. In aid learned counsel cited RIVERS STATE GOVT. V. SPECIALIST/KONSULT (2005) 7 NWLR (PT.923) 145; A.G. ONDO STATE V. A.G. FEDERATTON (2002) 9 NWLR (PT.772) 222 YUSUFU V. OBASANJO (2003) 16 NWLR (PT.847) 554; A.G. FEDERATION V. A.G. ABIA STATE (2002) 6 NWLR (P7,764) 542.
Finally learned counsel urged this Court to resolve the two issues in favour of the Appellant, since the Respondents were properly served with all the processes of the lower court, including the injunctive order, before they embarked on the demolition exercise.
Mr. Bawa, learned counsel for the Respondents, submitted on the issue of service that it is only fair and just that a person required to obey an order of a Court made in his or her absence (such as the interim order of injunction, subject of the committal proceedings in this case) be personally served by way of delivery to him or her to ensure his or her compliance with same, so that in the event of non-compliance with the order, he or she can then be made to answer for the disobedience. In a further argument, learned counsel submitted that the provision of Order 11 Rule 6 of the High Court of FCT (Civil Procedure) Rules 2004 dealt only with service of ordinary summons as against the service of committal processes which is a specie of its kind and with special procedure provided for it in the judgment enforcement Rules. Still in argument, learned counsel submitted that even if Order 11 Rule 6 of the FCT Rules is applicable to service of Court orders and committal processes, the Appellant will still be required to prove that the processes were served on a senior officer. The supporting affidavit showed that the processes were served on M.B. Maikoni whose designation is not made certain in the supporting affidavit. Learned counsel rejected the Appellant’s submission that the lower court upheld proper service on the Respondents’ on the contrary, learned counsel contended, the learned trial Chief Judge never agreed with the submission of the learned counsel for the Appellant that the Respondents were properly served.
On the 2nd Respondent, learned counsel submitted that the person cited by the Court for contempt as the 2nd contemnor is Mr. Isa M. Shuaibu a Director, Development Control Department of the FCDA, who was not personally served and when he became aware of the injunctive order withdrew the workers on site. Learned counsel therefore urged the Court to resolve the two issues in favour of the Respondents.
The argument of both parties on these two issues is centred on the mode of service of committal processes in a case of disobedience to Court orders. The finding of the learned trial Chief Judge with respect to the mode of service is at page 235 paragraph 3 of the printed record of this appeal. It reads thus:-
“I have noted that the proof of service in the case file before me show (sic) that the 1st Respondent/Contemnor was served through one M.B. Maikori, a Chief Legal Officer in the Legal Service Department of the Federal Capital Development Authority on the 21st of May 2007 who endorsed the proof of service. While one Emembolu Harriet, a legal officer in the Abuja metropolitan management agency endorsed for the service copy of the motion on notice for committal on behalf of the 2nd contemnor.”
From the finding of the Court, it is very clear that the 1st and 2nd Respondents were not served personally. This finding of the lower court was based on paragraphs 5, 6 and 7 of the affidavit of service deposed to by the bailiff of the lower court.
Order 41 Rule 2 (1) and (2) of the FCT High Court (Civil procedure) Rules 2004 states thus:-
“2 (1) An application for an order of committal shall be made to the Court by a motion on notice supported by an affidavit and shall state the grounds of the application.
(2) The notice of motion, affidavit and grounds shall be served personally on the person sought to be committed, but the Court may dispense with personal service where the justice of the case so demands.”
The provision of Order 41 Rule 2 (1) and (2) which I have reproduced hereinabove deals specifically with procedure for committal proceedings and therefore excludes the provisions of Order 11 Rule 6 which deals with other forms of service. This much is pointed out by the learned trial Chief Judge at page 234 of the Record of Proceedings where his Lordship held:-
“I am in full agreement with the submission of learned counsel to the Claimant/Applicant that in the normal cause of things service on a Defendant of a Court order can be done in accordance with the provisions of Order 17 Rule 6 of the Rules of this Court i.e. by serving the order and/or other Court process on a senior officer of the government agency and that officer shall cause the service of the document on the proper party in this case the Defendant accordingly.
However, the pertinent question here is does this mode of service extend to the procedure for committal proceedings provided for under Order 47 of the Rules of this Court?”
In this passage of the judgment, the learned trial Chief Judge never agreed that the Respondents were properly served. The submission of the learned counsel for the Appellant that the lower court upheld the propriety of the service of the Court order on the Respondents only to reject the same mode of service when considering the service of the committal processes is without basis. Rules of Court are meant to be obeyed; they are not made for the fun of making rules. Where the rules provide for personal service, nothing short of that is acceptable, unless it becomes practically impossible to effect such service personally.
Now, looking at the Respondents, is it practicable to effect service on each of them personally? The 1st Respondent is a Minister in the Government of Nigeria, in charge of the Federal Capital Territory. Can he be served personally? In ATTORNEY GENERAL OF EKITI STATE V. DARAMOLA (2003) 10 NWLR (PT.827) 104, the Supreme Court observed that, the Attorney General, being a Defendant in the case where Ekiti State was accused of disobeying Court order ought to have been properly served with the committal processes. In MILITARY GOVERNOR OF KWARA STATE V. AFOLABI (1991) NWLR (Pt.196) 212 at 227 paragraphs F-G, the Court of Appeal, per Ogundare, JCA (as he then was) held:-
“The notice of motion and affidavit and grounds for committal for contempt committed ex-facie curia must be served personally on the person sought to be committed provided that the Court may dispense with personal service where the justice of the case demands it, which is not the case in the instant as there was no application for substituted service.Learned counsel for the Appellant submitted that personal service by hand delivery is impossible when the party to be served is a corporate sole or Government Agency. According to the learned counsel, service on senior or specified officers of such corporate sole or agency constitutes proper personal service. Learned counsel refers to the Minister as corporate sole and contends that service on the Chief legal officer in the Legal Services Department of the Federal Capital Development Authority is personal service on the Minister of FCT.
The Supreme Court in the case of the MILITARY GOVERNOR OF KWARA STATE V. AFOLABI (supra), held that the Military Governor who is also corporate sole, ought to have been served personally. The Apex Court perhaps knew that it is difficult to serve people in authority in this country and that is why it concluded that where there are difficulties in effecting such service, the Court can dispense with such service provided there is application for substituted service. From this authority therefore, it is my firm view that the lower court was right when it reached a conclusion that the 1st Respondent was not properly served with the committal processes, since he was not personally served, and there was no application for substituted service for the Court to rely upon in dispensing with personal service.
As for the 2nd Respondent, I agree that it is a body corporate and can in many ways be likened to a human being. This is so because it can sue and be sued and it is capable of entering into contractual obligations. However, in view of the fact that an artificial person or a body corporate like the 2nd Respondent vested with legal or juristic personality lacks the natural or physical capacity to function as a human being, those who work in it do all things for and on behalf of it. See KURUBO V. ZACH-MOTISON (NIG) LTD. (1992) 5 NWLR (PT.239) 102.
The person responsible for directing the affairs of the 2nd Respondent is the first Respondent in the instant case. I have held elsewhere that the first Respondent was not properly served with the committal processes. Proper service on the first Respondent would have been sufficient personal service on the 2nd Respondent also. Failure to effect proper service on the 1st Respondent has vitiated whatsoever attempt at service on the 2nd Respondent, and the lower court was therefore right to have given the benefit of doubt to the 2nd Respondent.
Having found that service of the committal processes on senior officers of the Respondents do not satisfy the requirement for “personal service” envisaged in the relevant rules of the lower court, issues one and two which were argued together should be, and are therefore resolved in favour of the Respondents, and the grounds of appeal upon which they are distilled are hereby dismissed.
On issue three, learned counsel quoted a passage of the judgment of the lower court in which he alluded to the fact that the lower court had adjudged the 2nd Respondent to be properly served with the committal processes. I do not think the learned counsel for the Appellant read and understood the passage very well. For clarity, I reproduce hereunder the said passage as follows:-
“Since these facts have not been disputed by the Respondents/Contemnors, I am of the firm view that collecting the original copy of the process from the bailiff by the 2nd Contemnor constituted good service on him of the motion on notice for committal, notwithstanding the fact that he has refused to endorse the proof of service and I so hold.
The question now is when did the 2nd Contemnor became aware of the Court order restraining them from demolishing the Applicant’s building.”
It can be seen in this passage that the collection of the original copy of the process from the bailiff was by Isa Shuaibu who the Court referred to as the 2nd Contemnor and that the act of collecting the processes constituted a good service on him (meaning Isa Shuaibu). The 2nd Respondent could not be referred to as him, and the act of collecting process cannot be by the 2nd Respondent, as it lacks the capacity to do so.
The committal proceedings were initiated against the 1st and 2nd Respondents. Isa Shuaibu was never joined as a party. The order against him therefore had no foundation.
Finally, even if the injunctive order were served on the Respondents, the fact that the committal processes were not served personally on the Respondents is fatal to the Appellant’s case. The 3rd issue is also resolved in favour of the Respondents and the grounds upon which it is formulated are accordingly dismissed.
Having resolved all the issues formulated by the Appellant in favour of the Respondents, this appeal shall be and it is hereby dismissed.
I make no order as to cost.
JIMI OLUKAYODE BADA, J.C.A: I have had the opportunity of reading in draft the Judgment of my learned brother PAUL ADAMU GALINJE, JCA, just delivered.
I entirely agree with the reasons lucidly set out therein leading to the dismissal of the appeal.
I also dismiss the appeal for lacking in merit.
REGINA OBIAGELI NWODO, J.C.A: I had the privilege to read in advance the Judgment just delivered by my learned brother Galinje J. C. A., I agree with the reasoning contained therein and the conclusion arrived thereat, dismissing the Appeal. I also hold the appeal is devoid of merit and same is dismissed. I abide by the Order as to Cost.
Appearances
For Appellant
AND
MR. A. Ben Anachebe SAN
Mrs. Frances C. Anachebe
Shareef Mohammed Esq
Mr. D. ElogunFor Respondent
