DANDOGARA OIL LTD & ANOR v. IBRAHIM
(2022)LCN/16362(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/K/439/2015
Before Our Lordships
Mojeed Adekunle Owoade Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. DANDOGARA OIL LIMITED 2. ALH. MAMUDA DANDOGARA APPELANT(S)
And
ALH. TASIU IBRAHIM RESPONDENT(S)
RATIO:
FAILURE IN COMPLIANCE WITH A SERVICE OF COURT PROCESS CAN RENDER THE PROCEEDINGS NULL AND VOID
It is settled law that service of Court process is so fundamental that a failure in compliance thereof is capable of rendering the proceedings null and void. Where service of process is required and the person affected by the decision was not served with process, he is entitled ex-debitio justitiae to have the decision set aside as a nullity. See Bayero v. FMBN (1998) 2 NWLR (Pt. 538)509 National Bank v. Guthrie (1993) 4 SCNJ 1 at 17 Eselemo v. Funkekeme (2004) ALL FWLR (Pt. 224) 2103.
In other words, service of process is a condition precedent to the exercise of jurisdiction by the Court. Except in exparte proceedings, where a case is heard and determined in the absence of a party who was not served with the Court process the proceedings is a nullity, hence service of Court’s process are basic and indispensable to any valid adjudication. See Skenconsult Nig. Ltd & Anor v. Godwin Ukey (1981) 1 SC 6 at 26 Auto Imp Exp v. Adebayo (2002) 12 SC (Pt. 1) 169 TenoEng Ltd v. Adisa (2005) 22 NSCQR 858. ABUBAKAR MAHMUD TALBA, J.C.A.
THE SERVICE OF A PROCESS BY A COURT BAILIFF
It is settled law that where a party to an action was not personally served by a Court bailiff but receives a process from a 3rd party who had earlier been served with the process by a bailiff such service by 3rd party is still deemed to be personal service notwithstanding the absence of direct service from a bailiff. See Panache Comm Ltd v. Aikhomu (1994) 2 NWLR (Pt. 327) 420 Ration 1 & 2. ABUBAKAR MAHMUD TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of Kaduna State High Court delivered on 9/11/2015 in Suit No. KDH/Z/416/2014.
The respondent filed a suit against the appellants at the lower Court. The respondent also filed a motion for summary judgment and both processes were served on the appellants. The appellants did not put up appearance or file a defence in accordance with Order 11 Rule 4 of the High Court of Kaduna State Civil Procedure Rules 2007. When judgment was entered against the appellants they filed a motion seeking for an order setting aside the judgment on the grounds of want of service of hearing notices. The lower Court heard the application and dismissed same. Being dissatisfied with the ruling, the appellant appealed to this Court vide a notice of appeal filed on 10/11/15. It contain three grounds of appeal.
At the hearing of the appeal on 25th of April, 2022 Muhammad Algazah holding the brief of A. Y. Musa, adopted the appellants’ brief of argument filed on 22/12/15 and the reply brief filed on 16/02/16. The respondent counsel Olugbenga Ogunniran was not in Court. The Court registrar informed the Court that he was served with hearing notice through phone call on 20/4/22 on phone number 08035072454. The appellants’ counsel urge the Court to deem the respondent’s brief of argument filed on 8/02/2016 as having been argued. Pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules 2021, the respondent’s brief was treated as having been duly argued.
From the three grounds of appeal the appellant formulated two issues for determination, thus:
(1) Whether there was proper service on the appellants when the trial Court heard and determined the suit therein.
(2) Whether there were proper parties before the trial Court when it heard and determined the suit therein.
The respondents adopted the two issues submitted by the appellants. I also adopt the two issues for the determination of this appeal.
The appellant contended that there was no proper service on them before the trial Court heard and determined the suit against them. And that service of process is very fundamental to adjudication, it goes to the root of a suit as to affect the jurisdiction of a Court where it is wanting. On09/07/2015 when the trial Court sat, heard and determine this suit it did so after the registrar told the Court that the defendants (appellants) were served with hearing notice on 03/07/2015. The trial Court did not see the affidavit of service as required by Order 7 Rule 13 of the Kaduna State High Court Civil Procedure Rules 2007. The affidavit of service was not produced in Court. He referred to page 52 of the record of proceedings. Learned counsel submitted that the trial Court erred when it held that there was service on the appellants when there was no prove by affidavit of service. He cited the case of Mark v. Eke (2004) All FWLR (Pt. 200) 1455 AT 1478 – 1479 where it was held that an affidavit of service is the best proof of service. See also Remawa v. NACB Consultancy And Finance Co. Ltd (2007) All FWLR (Pt. 349) 111.
Learned counsel submitted that service must be personal on the parties except otherwise ordered by the Court. But the hearing notices which the Court relied upon to enter judgment were served on someone and not the appellants allegedly on the instruction of the 2nd appellant. And no proof of that was brought before the trial Court. And that service of a process on any person other than a party or his counsel amounts to substituted service. Therefore, service of process on the 2nd appellant’s boy without the leave of the Court being sought for and or obtained is not good service.
The learned counsel further submitted that the 1st appellant is a corporate body and service on a Corporate body is provided for under Section 78 of the Companies and Allied Matters Act (CAMA). See page 59 of the proceedings of the trial Court. He submitted that the 1st appellant was served at Saminaka which according to the trial Court it’s a proper service being a branch office of the 1st appellant. He referred to page 60 of the record. The trial Court relied on Section 78 of CAMA and Order 7 Rule 9 of the Kaduna State High Court Civil Procedure Rules 2007. Learned counsel submitted that the trial Court was in error because the opening phrase of Order 7 Rule 9 is thus; “in the absence of any statutory provision” which means that where there is a statutory provision the rules become inapplicable. And the rules of Court referred to on Section 78 of CAMA is the Federal High Court Rules. He referred to Section 650 of CAMA and further relied on the case of Mark v. Eke (2004) supra. The trial Court was in error when it held that its horizon has been expanded despite the interpretation of Section 78 of CAMA by the Supreme Court in Mark v. Eke (supra). The trial Court was in error when it refused to set aside its decision which was arrived at without jurisdiction as no proper service was proved before it when it proceeded to enter judgment against the appellant and thereby occasioned a miscarriage of justice.
In his response, the respondent’s counsel contended that the appellant admitted being served in paragraph 3 (a) (b) and (c) of the affidavit in support of the motion dated 15th July 2015, praying the Court to set aside its judgment. In the said affidavit Nuhu Dauda the Secretary of the 1st defendant/applicant admitted receiving the process of this Court at Saminaka wherein the 1st defendant has an operational base within the jurisdiction of the trial Court. He relied on the case of Wing Commander A. Adamu v. Donatus F. Akukaha (2008) All FWLR (Pt. 428) 352 at 391 para G – H where it was held that:
“The essence of service in our procedural or adjectival law is to ensure that the party is put on notice of the pending litigation and this can be achieved through a liaison office. The word liaison means a working association or connection to ensure that each side is well informed about what the other is doing in other words where a service is effected in the liaison office it is presumed that the service was properly effected.”
Learned counsel submitted that service on the company Secretary at Saminaka the operational place of business of the 1st defendant/1st appellant cannot be referred to as improper service on the issue of service on the 2nd defendant/2nd appellant, the learned counsel referred to paragraphs 3(a), (b) and particularly (c) of the affidavit contained in page 28 of the record, it reads:
“That the 2nd defendant saw the hearing notice and voiced out his surprise because the plaintiff/respondent had earlier informed him on the 11/7/15 that the suit was discontinued.”
And in response to paragraphs 3 (a) (b) and (c) of the affidavit in support of the application to set aside the judgment of the trial Court, the respondent filed acounter-affidavit. He referred to paragraphs 4(a) (b) (c) and (d) and he submitted that the appellant did not file a further affidavit to contradict the assertions in the counter-affidavit which means a concession on their part that the originating processes of the Court were properly served on the appellants who are aware of the pendency of this suit. He submitted that the contents of the affidavit not contradicted are deemed admitted. The respondent’s counsel further relied on Section 78 of CAMA and Order 7 Rule 9 of High Court of Kaduna State Civil Procedure Rules 2007 and the case of Nigeria Bottling Co. Plc & Anor v. Chief Uzoma Ubani (2009) All FWLR (Pt. 497) 80 at 99 – 101 para C – B, on the issue of service on the 1st defendant/1st appellant.
At this juncture, it is apt to look at the decision of the trial Court which is subject of this appeal. It reads thus:
“… The issue for determination is whether the defendants were served with the processes of this Court to rightly invoke the jurisdiction of this Court to hear and determine this case.
In other words, whether the defendants were properly served with the process of this Court.
The provisions of Section 78 CAMA and Order 7 Rule 9 HCCPR 07 are the statutory and guiding provisions for service on statutory bodies.
The applicant in its supporting affidavit paragraph 3 stated that one Nuhu Dauda the 1st defendant’s secretary was served on 13/07/15, can this service be said to be proper service on the defendants. The applicants contend that they do not operate a business in Saminaka. Now Section 78 CAMA;
“A Court process shall be served on a company in the manner provided by the Rules of Court and any other served on a company be leaving it at or sending it by post to the registered office or head office or head office of the company.”
Whereas Order 7 Rule 9 provides:
“In the absence of any statutory provision regulating service on a registered company corporation or body corporate every originating process or other process requiring service may be served on the organisation by delivery to a Director, Secretary, Trustee or other Senior Principal officer of the Organisation or by leaving it with an officer at registered principal or advertised office or place of business of the organisation within the jurisdiction of the Court.”
Above are the guiding principles of service on a corporate body like the 1st applicant.
The provision of CAMA makes it dependent on the provision of this Court rule. This Courts Rule 07 expands the horizon of service on corporate bodies to include an advertised office or place of business.
The question that readily comes to mind is whether the 1st defendant has a business place in Saminaka. To answer this recourse must be had to the entire processes filed before this Court i.e the writ of summons all the exhibits, depositions etc. in so doing the provision of Section 122(2) MEA is relevant at this point. I will therefore proceed to take judicial notice of all the process filed in this suit.
Looking at the writ of summons dated 09/12/19 the writ bears address of service on the defendants as “UngwanBawa, Kano Road, Saminaka, Lere Local Government Kaduna State.”
It is in evidence that the applicants are aware of this case when it is deposed in paragraph 3(c) of the supporting affidavit that “the 2nd applicant saw the hearing notice and voiced out his surprise because the plaintiff/respondent had earlier informed him on 11/07/15 that the suit has discontinued.” This shows that initially the applicants were served and aware of this suit.
Again Exhibit C addressed to the defendants bears the following address:
“The Managing Director Dan Dogara Oil Ltd Beside Bakin Kogi Market, BakinKogi
or
UngwanBawa Kano Road SaminakaLere Local Government Kaduna State.”
All these go to prove that the parties have been using Saminaka address which cannot be different from the provision of Order 7 Rule 9 which now expands the horizon of service to include any place where the organisation carries its business aside its registered office.
The authorities cited by the applicants counsel were decided prior to creation of the new Court civil procedure therefore these cases are not on all fours with the facts of this case.
Order 7 Rule 4 equally allows processes to be left with an adult person residents or employed at the address for service. Having said so I do not agree that this Court was misled into believing that service was effected on the defendants/applicants.
I do not see any reason why my judgment of 09/07/15 should be set aside. Therefore the application is lacking in merit and is accordingly dismissed.”
It is settled law that service of Court process is so fundamental that a failure in compliance thereof is capable of rendering the proceedings null and void. Where service of process is required and the person affected by the decision was not served with process, he is entitled ex-debitio justitiae to have the decision set aside as a nullity. See Bayero v. FMBN (1998) 2 NWLR (Pt. 538)509 National Bank v. Guthrie (1993) 4 SCNJ 1 at 17 Eselemo v. Funkekeme (2004) ALL FWLR (Pt. 224) 2103.
In other words, service of process is a condition precedent to the exercise of jurisdiction by the Court. Except in exparte proceedings, where a case is heard and determined in the absence of a party who was not served with the Court process the proceedings is a nullity, hence service of Court’s process are basic and indispensable to any valid adjudication. See Skenconsult Nig. Ltd & Anor v. Godwin Ukey (1981) 1 SC 6 at 26 Auto Imp Exp v. Adebayo (2002) 12 SC (Pt. 1) 169 Teno Eng Ltd v. Adisa (2005) 22 NSCQR 858.
The main contention of the appellant is that the trial Court was told by the registrar that the defendants/appellants were served with hearing notice on 03/7/2015. And the trial Court without seeing the affidavit of service, it proceeded to hear and determine the suit as envisaged by Order 7 Rule 13 of the Kaduna State High Court Civil Procedure Rules 2007. It should be noted that an affidavit of service is not the only means of proving service of process. Generally service of process is proved by the production of the endorsement and return copy of the process. An affidavit of service is usually deposed to by the bailiff where there is no personal service or where service was effected by means of dropping the process on the person to be served after having refused to accept service or refusing to endorse on the endorsement and return copy. In this instant case the registrar told the Court that “the defendants (now appellant) were served with hearing notice, there is prove of service dated 03/07/15”. See page 52 lines 12-13 of the record of proceedings. At page 24 and 25 of the record of proceedings, it’s the endorsement and return copy of the hearing notices. The back page of the hearing notice shows an endorsement by one Mamuda Dogara, signed and dated 3/7/2015 at 9:15am. Upon being satisfied that there was service of hearing notices on the appellants the trial Court proceeded to hear and determine the suit. The appellant contended that there was no personal service on them. It is settled law that where a party to an action was not personally served by a Court bailiff but receives a process from a 3rd party who had earlier been served with the process by a bailiff such service by 3rd party is still deemed to be personal service notwithstanding the absence of direct service from a bailiff. See Panache Comm Ltd v. Aikhomu (1994) 2 NWLR (Pt. 327) 420 Ration 1 & 2.
The issue of address of service being Unguwan Bawa, Kano Road Saminaka Lere Local Government Kaduna State, is not and should not be in dispute, because this address is contained in all the processes filed at the lower Court right from the writ of summons, the statement of claim, the list of witness, the list of documents, the sales agreement, the demand letter for refund of N3,300,000, the motion on notice for summary judgment, the written address in support of the motion for summary judgment. See pages 1-21 of the record of proceedings. The service of the hearing notices on the appellant was confirmed by the appellants in paragraph 3(a) & (b) of their affidavit in support of the motion to set aside the judgment it reads:
“3(a) That the 2nd defendant was informed at Saminaka on the 14/7/15 when they went there from Abuja that the bailiff of this honourable Court came and introduced himself to him and thereafter served him with two hearing notices meant for the applicants to give to them at Saminaka town.
(b) That he received the processes and kept for the 2nd defendant until the later comes.”
From the above deposition, it is without any doubt whatsoever that the appellants were served with a hearing notice. But the interesting thing here is that the appellants in the same affidavit gave reasons why they failed to respond to the hearing notice. Paragraph 3(c) of the said affidavit reads:
“3(c) That the 2nd defendant saw the hearing notice and voice out his surprise because the plaintiff/respondent had earlier informed him on 11/7/15 that the suit was discontinued.”
Therefore, because the appellant believed that the suit was discontinued, they failed, refused and/or neglected to respond to the hearing notices served on them. The learned trial judge was right to have proceeded to hear and determine the suit after being satisfied that the appellants were served with a hearing notice. Issue one is accordingly resolved against the appellants.
On the second issue, the appellant submitted that having failed to ascertain the proper parties before it, the trial Court erred in law when it refused to set aside its decision as sought and thereby occasioned a miscarriage of justice. The learned respondent’s counsel submitted that this issue was not raised at the trial Court as such the appellants cannot raise a fresh issue on appeal. I have gone through the entire records of proceedings including the ruling subject of this appeal and I could not see where the issue was raised. It is settled law that parties are not allowed to raise fresh points or issues on appeal, issues which were not raised not tried, nor considered nor pronounced upon by the lower Court. The Court of Appeal is not a Court of trial but of rehearing, therefore it should have the benefit of the view of the lower Court on the point taken before it. See Mogaji v. Cadbury Nig Ltd (1985) 7 SC 59.
However, an issue not raised in the lower Court may be allowed in the Court of Appeal but subject to some guiding principles, which includes”
1. The fresh point must be on a question involving substantive or procedural.
2. The Court of Appeal must be satisfied that it has before it all the facts bearing upon the fresh point as completely as would have been the case if the point had been raised at the lower Court.
3. The Court of Appeal must be satisfied that no satisfactory explanation could have been given by those whose conduct is impugned if an opportunity for explanation had been afforded them in the witness box. In other words, no further evidence could have been adduced which may affect the decision on them. See Akpene v. Barclays Bank (Nig) Ltd (1977) 1 SC 47 and Obisesan v. Ogunsola (1999) 3 CA 124.
None of this circumstances apply to the instant case. Accordingly, therefore the second issue is struck out. And having resolved the first issue against the appellant, the appeal lacks merit and same is dismissed. I award a cost of N50,000.00 against the appellants.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Abubakar Mahmud Talba, JCA.
I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal is dismissed. I abide with the consequential orders.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Abubakar Mahmud Talba, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
Muhammad Algazah Esq. holding the brief of A. Y. Musa Esq. For Appellant(s)
Olugbenga Ogunniran Esq. For Respondent(s)