EMERALD GARLAND BEVERAGES LTD. & ANOR v. DENNIS CHUKWUEMEKA MADUECHESI (2010)

EMERALD GARLAND BEVERAGES LTD. & ANOR v. DENNIS CHUKWUEMEKA MADUECHESI

(2010)LCN/4167(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of December, 2010

CA/E/143/08

RATIO

INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 11 OF THE HIGH COURT OF ANAMBRA STATE (CIVIL PROCEDURE) RULES 2006 WITH RESPECT TO THE PROCEEDINGS OF A SUMMARY JUDGMENT

SUMMARY JUDGMENT: CONDITIONS TO BE FULFILLED AND PROCEDURES TO BE FOLLOWED BY THE PLAINTIFF, DEFENDANT AND JUDGE IN A SUMMARY JUDGMENT PROCEEDING

Nonetheless, there are conditions to be fulfilled and procedures to be followed by the Plaintiff, the Defendant, and the Judge. The Plaintiff must – a) Believe that there is no defence to his claim; b) file his statement of claim, the exhibits, the depositions of his witnesses along with his originating process; c) File an application for summary judgment; d) Support the application with an Affidavit; e) State the grounds for his belief in the Affidavit; and f) File a written address in respect thereof Where a Defendant intends to defend the suit, he must file – (a) His statement of defence (b) Depositions of his witnesses (c) Exhibits to be used in his defence, and (d) A written address in reply to the application for summary judgment. Where it appears to a Judge that – (1) A Defendant has a good defence, he may be granted leave to defend; (2) The Defendant has no good defence, Judgment may be entered for the Plaintiff; (3) The Defendant has a good defence to part of the claim, he may be granted leave to defend that part of the claim; (4) The Defendant has no defence to other parts of the claim, judgment may be entered in favour of the plaintiff for that part of the claim; (5) Any of several Defendants has a good defence, he may be permitted to defend: and (6)Any of several Defendants has good defence, the Judge shall enter Judgment against him. PER AMINA ADAMU AUGIE, J.C.A.

SUMMARY JUDGMENT: POSITION OF THE LAW ON WHEN AN ACTION WILL BE TRANSFERRED TO THE GENERAL CAUSE LIST FROM THE UNDEFENDED LIST

Obviously, for an action to be transferred to the general cause list there must have been a defence on the merit, and it must not be a half-hearted defence – see UBA Plc v. Jargaba (2007) 11 NWLR (Pt.1045) 247, where the Supreme Court per Tobi, JSC added that – “A case is not transferred to the general cause list as a matter of course or routine but on proper scrutiny of the averments in the Affidavit in support of the not be to defend. For this purpose, no flimsy, fanciful or frivolous defence adduced to prolong the case or play for time will suffice. It must be a real defence on the merit and not a caricature of it”. Thus, it is his Affidavit that discharges the burden on a Defendant to show that the grounds for asking to be heard in his defence are not frivolous, vague or craftily designed to filibuster proceedings. He must satisfy the Court that there is a triable issue and a “triable issue or defence on the merit” is such that the Plaintiff will be expected to explain certain matters with regard to his claim or where the Affidavit throws some doubt on the Plaintiff’s claim. In other words, the Court is simply required to look at the facts deposed to and see if they can prima facie afford a defence to the action. In that regard, a complete defence need not be shown. It will suffice if the defence set up shows that there is a triable issue – see F.M.G. v. Sani (1990) 4 NWLR (Pt.747) 688 SC and Ebong v. Ikpe (2002) 17 NWLR (pt.797) 504 where this Court held – “It is not the duty of the Court at the stage of considering whether the Defendant has a defence – – to consider whether the defence will ultimately succeed as all that is needed at that state is to determine whether a good defence has been disclosed in the Defendant’s Affidavit – – -Again, the Appellant’s Affidavit disclosing his defence on the merit should not provide a cast-iron or an air-tight defence or disclose a defence beyond reasonable doubt before the suit could be transferred to the general cause list for hearing. — it is now a well established principle that — the court must call into play a measure of liberality when viewing the Affidavit of the Defendant in order to determine whether or not a defence on the merit is disclosed”. PER AMINA ADAMU AUGIE, J.C.A.

SERVICE OF COURT PROCESSES: OBJECTIVE OF SERVICE OF COURT PROCESS, AND THE EFFECT OF A JUDGMENT GIVEN IN THE ABSENCE OF A PROPER SERVICE COURT PROCESS

The objective of the service of court process is to give notice to the defendant of the claims against him, so that he may be aware of and be able to put up a defence to the claim, if he desires to do so. Any judgment given in the absence of proper service is given without jurisdiction and is liable to be set aside on appeal. See Kida v. Ogunmola (2006) 13. Scott – Emukpor v. Ukaube (1975) 2 SC 41 NWLR pt.907 page 377. P. N. Emerah v. Mazi Benson Duru (1998) 9 NWLR pt.564 page 86. PER ABDU ABOKI, J.C.A.

SERVICE OF COURT PROCESSES: WHETHER THE ISSUANCE AND SERVICE OF A WRIT OF SUMMONS ON A DEFENDANT IN A CASE IS A CONDITION PRECEDENT FOR THE EXERCISE OF JURISDICTION BY THE COURT OVER THE SUBJECT MATTER; WAYS OF EFFECTING SERVICE OF COURT PROCESS

The issuance and service of a writ of summons on a defendant in a case are conditions precedent for the exercise of jurisdiction by the court over the subject matter of the action and over the defendant. In all cases where service of process is to be effected, it shall be by personal service, but where personal service cannot be conveniently effected, then the court may order for substituted service. See Kida v. Ogunmola (2006) 13 NWLR pt.997 page 377. Ononye v. Chukwuma (2005) 17 NWLR pt. 953 page 90. Idiuta v. Eiako (2005) 11 NWLR pt.936 page 349. Teno Eng. Ltd. v. Adisa (2005) 10 NWLR pt.933 page 346. Dickson v. Okoi (2003) 16 NWLR pt.846 page 397. PER ABDU ABOKI, J.C.A.

SERVICE OF COURT PROCESSES: WHETHER A DEFENDANT IMPROPERLY SERVED WITH COURTS PROCESS BUT DELIBERATELY REFUSES TO AVAIL HIMSELF OF THE OPPORTUNITY OF BEING SERVED WITH COURT PROCESS HE CAN BE HEARD TO COMPLAIN OF NON-SERVICE OR DENIAL OF OPPORTUNITY TO BE HEARD

A defendant improperly served with courts process has a duty to promptly protest. However, where a party deliberately refuses to avail himself of the opportunity of being served with court process he cannot be heard to complain of non-service or denial of opportunity to be heard. See Dickson v. Okoi (2003) 16 NWLR pt.846 page 397. PER ABDU ABOKI, J.C.A.

SERVICE OF COURT PROCESSES: EFFECT FAILURE TO GIVE NOTICE OF PROCEEDINGS TO AN OPPOSING PARTY IN A CASE WHERE SERVICE OF PROCESS IS REQUIRED ON A COURT’S JURISDICTION TO ENTERTAIN IT

Service of process is vital under due process of law. See Ginda v. Kitta (1999) 12 NWLR Pt.629 at 21. Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceeding void because the court has no jurisdiction to entertain it. See Tubonemi v. Dikibo (2006) 5 NWR pt.974 page 565. Ononye v. Chukwuma (2005) 17 NWLR pt.936 page 349. Idiata v. Ejeko (2005) 11 NWLR pt. 936 page 349. Onadeko v. UBN Plc. (2005) 4 NWLR pt 916 page 440. Ayogu v. Nnamani (2004) 15 NWLR pt. 895 page 134. Otobaimere v. Akporehe (2004) 14 NWLR pt. 894 page 591. Mark v. Eke (2004) 5 NWLR pt. 865 page 54. Wema Bank Nigeria Ltd. v. Odulaja (2000) 3 SC 83. Any judgment based on a process, which is not served is liable to be set aside. See Hypolite v. Egharevba (1998) 11 NWLR pt.575 page 598. PER ABDU ABOKI, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

Between

1. EMERALD GARLAND BEVERAGES LTD.
2. DR. EMEKA OJUKWU Appellant(s)

AND

DENNIS CHUKWUEMEKA MADUECHESI Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Respondent, engaged by the Appellants to handle various cases they had in Court. However, by a letter dated 26th July 2006, the Respondent was informed – “We have deemed it necessary to debrief you and your Chambers of all the cases that you are handling for us. For over 2 (two) years we have been going to Court and none of the cases Viz: – – -has come to a successful conclusion. We shall be informing you who the new lawyers would be thanks for your co-operation”.
In his reply dated 3rd August 2006, the Respondent withdrew his services, and after putting “the records straight”, concluded thus –
“..We hereby condemn vehemently your crude and malicious innuendo alluding to our Chambers as non-result oriented. It only takes a greedy man and an ingrate to conclude that we did not produce any result in the cases – – Result means different things to different people. A reasonable man would know that we have produced results in the case we have handled for you. – – In consideration of our legal services to you, we hereby demand you to pay us a total sum of N398,000.00 in cash or cheque to our Chambers within one month of this demand letter. You shall collect all your case files as soon as you pay us fully. However, we wish to remind you that your former counsel – – made an agreement with our Chambers over your outstanding debt – – to him. We hereby advice you to go and settle your indebtedness to Obi Ulasi, Esq. to the tune of N100, 000.00 being the balance of his professional fees which you owed him before we inherited your briefs from him. Please find attached in this letter a copy of our bill of charges for the legal services rendered to you during your retainer-ship with us- -.”

In another letter dated 16th April 2007, the Appellants were told –
“I wish to bring your attention to the Zenith Bank Cheques Nos. – – – representing the sum of N298,000.00, which you issued to Mr. Dennis Maduechesi – – on the 6th day of October 2006. I annex the cheques hereto. The aforementioned cheques after bring presented to the bank were returned unpaid. I need to remind you of the legal implications of your action. However, I demand the payment of the N298,000.00 within seven days from 16th April 2007. If you fail to heed to this demand I shall have no other alternative than to bring both criminal and civil proceedings against you”.

With no response from the Appellants, the Respondent instituted proceedings at the Onitsha High Court of Anambra State with a “Writ of Summons for Suits in Undefended List”. He also filed an “Application for Summary Judgment in accordance with Order 11 rules 1 & 5 (2) of High Court (Civil Procedure) Rules 2006″‘ and a 25-paragraph Affidavit, where he averred in paragraphs 22 to 24 –
22. That I strongly believe that the Respondents (Appellants herein) have no defence to this suit.
23.That it will be in the interest of justice to enter Judgment in my favour because a laborer is entitled to his wages.
24. That the Defendants are wealthy and can easily pay my outstanding fees.

The 2nd Appellant was served by substituted means, and the Appellants filed separate Statements of Defence. The 1st Appellant averred as follows in paragraph 6 – 10 of its own pleadings that –
6. Even by his admission, the Plaintiff concedes that the 1st Defendant has nothing to do with his claim in this matter, even the bill of charges bears out that the suit..was the 2nd Defendant’s personal case and has nothing to do with the 1st Defendant.
7. The 1st Defendant denies that any such letter of 16/4/2007 had been written to her in respect of the 2nd Defendant’s personal matter.
8. The 1st Defendant denies categorically that the Plaintiff is entitled to any of the reliefs he claims in paragraph, 15 (a) – (c), the 1st Defendant who is a limited liability company reiterates that suit No. O/432/2001 which is the crux of this matter was a personal suit undertaken by the 2nd Defendant with the Plaintiff, it has absolutely nothing to do with the 1st Defendant, the 1st Defendant therefore states she cannot be sued for a case in which she did not engage the legal services of the Plaintiff and which the same Plaintiff admits was only the 2nd Defendant’s personal matter.
9. The 1st Defendant shall contend that she is a legal entity distinct and or separate from the 2nd Defendant, even if the said 2nd Defendant be her managing Director, it makes no difference with regard to the separateness of the 1st Defendant and the 2nd Defendant.
10. The 1st Defendant shall as hereinbefore earlier on stated raise a preliminary point that the service of the originating processes on the 1st Defendant in this matter was incompetent and improper and for the reason(s0 set out hereunder –
(i) The processes were not delivered to any director, secretary, trustee or other senior, principal or responsible officer of the 1st Defendant nor were the processes left at her registered, principal, advertised office or place of business of the 1st defendant within jurisdiction, rather the same had been served on one Miss Cordelia Mbaegbu a sales girl in the 1st Defendant’s Onitsha office.
On his part, the 2nd Appellant averred as follows in his pleadings –
10. The 2nd Defendants states that contrary to the agreement of the parties that the N298,000.00 would only be paid to the Plaintiff if the 2nd Defendant obtained a favorable Judgment by end of March 2007, the 2nd Defendant had learnt that the Plaintiff had perfected plans to cash the cheque Judgment or no Judgment.
11.That he had been constrained to countermand payments on the cheques.
12.That till date Judgment has not been entered nor has the 2nd Defendant collected even a kobo of the sum of N4,540,000 00 which is the amount he claims in the aforesaid suit No O/432/2001.
13. That it beat the 2nd Defendant’s imagination that the Plaintiff will sue him for money, which is purely dependent on the happening of a contingency that also has not come to pass.
14. That the 2nd Defendant was only being more than fair to the Plaintiff – had agreed to pay him the N298,000.00 in the event that the Judgment be entered in his favour in the matter, for after all he had briefed another counsel to do the same and would still pay him in any event.
15. That the 2nd Defendant denies paragraph 15 of the Statement of Claim and shall at the trial urge the Court to hold that the Plaintiff is not entitled to the same.
16. The 2nd Defendant reiterates that he does not owe the plaintiff any kobo and challenges him to show at the trial that he has collected even a kobo of the N4,540,000.00 or that judgment has been entered in this favour in the matter.

At the end of the day, the lower Court found in favor of the Respondent in its Judgment delivered on the 28th of January 2008. However, it was only the 2nd Appellant that was ordered to pay the Respondent – “the sum of N298,000.00 representing his outstanding professional fees for legal services rendered and also the sum of N4, 000.00 being bank charges for the two Zenith Bank cheques returned”. The lower Court refused to grant the 5% on the Judgment asked – “as he is neither a money lender nor a bank”.

Dissatisfied with the decision, the Appellants appealed to this Court with a Notice of Appeal containing only one Ground of Appeal, and in their brief of argument prepared by Chief I. M. Anah, they formulated one issue for determination, as follows –
“Whether the learned trial Judge applied the correct principles of law governing summary Judgment or undefended list procedure as enunciated in a plethora of decided cases like Emeka Ezunma v. Nkwo Market Community Bank Ltd (2000) 10 NWLR (Pt.676), Calvenply Ltd. v. Pekab Int. Ltd. (2001) 1 NWLR (Pt.717) 164 when he held that the Defendants/Appellants had no defence to the suit to warrant granting them leave to defend the suit and transferring it to the general cause list for hearing and determination on the merit via viva voice evidence?”
The Respondent, however, submitted in the brief he prepared himself that the issue for Determination in the appeal is, as follows-
“Was the Learned Trial Judge right to have entered Judgment for, the Respondent under the summary judgment procedure of Order 11 of the Anambra State High Court (Civil Procedure) Rules 2006, having regard to the materials placed before her by the parties?
In my view, the issue formulated by the Appellants is a bit clumsy and I will adopt the Respondent’s issue in dealing with the appeal.

In any case, both issues highlight the Appellants’ grievance, which is that the facts they pleaded disclosed a good defence or defence on the merit to warrant the lower court granting them leave to defend the suit and transfer it to the general cause list, citing Calvenply Ltd v. Pekab Int. Ltd (supra), Ekuma v. Silver Shipping Agencies Ltd (1987) 4 NWLR (Pt 65) 472, ACB v. Gwagwada (1994) 5 NWLR (Pt. 342) 25, and Nortex (Nig) Ltd v. Franc Toofs Co. Ltd (1997) 4 NWLR (Pt 501) 603. It is their contention that the fact of who entered into the contract deal or bargain with the Respondent thereby eliciting his legal services, and whom he rendered the legal service to were triable issues, and since these facts were a complete defence, particularly to the 1st Appellant, the matter ought to have been transferred to the general cause list, citing Calvenply Ltd v. Pekab Int. Ltd (supra).
The Appellants also submitted that their respective defences were specific not general and could give them absolution if proved; that the facts they pleaded were not denied by the Respondent as he filed no reply to them, and the lower Court should have acted on them without requiring them to prove same, citing Akintola V. Sofano (1986) 2 NWLR (Pt. 24) 698 SC; and that assuming without conceding that the facts were denied, they conflicted in material particulars with those he offered for which a transfer to the general cause list was appropriate for trial on the merit to enable matters to be proved and trashed out, citing Calvenply Ltd v. Pekab (supra). They further submitted that where parties present different facts, the Court is duty bound to assess, evaluate and weigh them on the imaginary scales of justice, and where they are in conflict, the court must set the case down for trial and call oral evidence to resolve the material conflicts as it is not open to the court to pick and choose which facts it will rely on without affording the parties the opportunity of challenging those facts, deponents or witnesses by cross examination, citing Calvenply Ltd v. Pekab Int’ Ltd (supra) and Agwuneme v. Eze (1990) NWLR (Pt.137) 242. This Court was therefore urged to set aside the Judgment of the lower Court and order a hearing on the merit on the general cause list.

The Respondent, however, argued that the Appellants did not place sufficient materials before the lower Court to Warrant the suit being heard on viva voce evidence; that they did not raise any triable issue or prima-facie defence that would make the lower Court transfer the suit to the general cause list; and that it is settled that for a Defendant to be granted leave to defend in cases brought under undefended list or summary Judgment procedure he must disclose facts that would throw some doubts on the Plaintiff’s case.
He further submitted that a mere general denial of the Plaintiff’s claim devoid of any evidential value is of no assistance, citing Jipreze v. Okonkwo (1987) NWLR (pt. 62) 737, Agro Millers Ltd V. Continental Merchant Bank Nig. Plc (1997) 10 NWLR (Pt.525) 469, Ataguba & Company v. Gura Nig. Ltd (2005) 1 NWLR (Pt.927) 429, that the Defendant must show that he has a bonafide defence, citing UTC Ltd. v. Pamotel (1989) 2 NWLR (pt. 103) 244, AMH Continuation Ltd. Vs CAP Ltd & Anor (2005) 1 NWLR (pt.908) 441, Chief Peter Amadi Nwankwo & Anor V. EDCS U. A. (2005) 2 SCLR (pt.2) 113, and that what the Appellants adduced as evidence in this case were spurious, sham, frivolous and worthless, thus, the lower Court was right not to have allowed the Appellants to dibble and frustrate him out of the fruits of his labour.

Now, the action before the lower Court was brought pursuant to order 11 of the High Court of Anambra State (Civil Procedure) Rules 2006, titled “summary Judgment”, and it reads as follows:
1. Where a Plaintiff believes that there is no defence to his claim, he shall file with his originating process the statement of claim, the exhibits, the depositions of his witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief and a written address in respect thereof.
2. (Delivery of extra copies to the registrar)
3. (Service)
4. Where a party served with the processes and documents referred to in Rule 1 of this order intends to defend the suit he shall, not later than the time prescribed for defence, file –
(a) His statement of defence
(b) Depositions of his witnesses
(c) Exhibits to be used in this defence, and
(d) A written address in reply to the application for summary judgment.
5. (1) Where it appears to a judge that a defendant has a good defence and ought to be permitted to defend the claim he may be granted leave to defend.
(2) Where it appears to a judge that a defendant has no good defence the judge may thereupon enter judgment for a plaintiff.
(3) Where it appears to a judge that a defendant has a good defence to part of the claim but not defence to other parts, the judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence.
Order 11 Rule 6 provides for where there are several Defendants –
“Where there are several Defendants and it appears to the Judge that any of the Defendants has a good defence and ought to be permitted to defend the claim and other Defendants have no good defence and ought not to be permitted to defend the former may be permitted to defend and the Judge shall enter judgment against the latter”.
Evidently, a claim under Order 11 is designed to enable a Plaintiff obtain summary Judgment without necessarily proceeding to trial. Equivalent to the undefended list procedure, it is meant for a quick disposal of cases, which are virtually uncontested – see Dala Air Services v. Sudan Ainrays (2005) 3 NWLR (pt. 912) 394 and Dalko V. U.B.N. Plc. (2004) 4 NWLR (pt.862) 123. Nonetheless, there are conditions to be fulfilled and procedures to be followed by the Plaintiff, the Defendant, and the Judge. The Plaintiff must –
a) Believe that there is no defence to his claim;
b) file his statement of claim, the exhibits, the depositions of his witnesses along with his originating process;
c) File an application for summary judgment;
d) Support the application with an Affidavit;
e) State the grounds for his belief in the Affidavit; and
f) File a written address in respect thereof
Where a Defendant intends to defend the suit, he must file –
(a) His statement of defence
(b) Depositions of his witnesses
(c) Exhibits to be used in his defence, and
(d) A written address in reply to the application for summary judgment.
Where it appears to a Judge that –
(1) A Defendant has a good defence, he may be granted leave to defend;
(2) The Defendant has no good defence, Judgment may be entered for the Plaintiff;
(3) The Defendant has a good defence to part of the claim, he may be granted leave to defend that part of the claim;
(4) The Defendant has no defence to other parts of the claim, judgment may be entered in favour of the plaintiff for that part of the claim;
(5) Any of several Defendants has a good defence, he may be permitted to defend: and
(6)Any of several Defendants has good defence, the Judge shall enter Judgment against him.

In this case, the Respondent filed the necessary processes and documents referred to in Rule 1, and he gave reasons for his belief that the Appellants had no defence to his claim in his Affidavit.
The Appellants, as the Defendants at the lower Court, indicated that they intended to defend the said suit, and they each filed the requisite processes and documents itemized in Rule 4. The 1st Appellant’s defence is that it was not the one that engaged the legal services of the Respondent, and that it was not properly served with the originating processes. The 2nd Appellant denied liability on the ground that any legal fees owed to the Respondent was contingent upon the conclusion of Suit No. O/432/2001 and the recovery of the sum of N4,540, 000.00, subject matter of the suit.
However, the learned trial Judge, Hon. Justice V. N. Umeh, merely mentioned that the Appellants had filed the necessary processes and documents, and proceeded to hold as follows –
“On 19th July 2007, the 2nd Defendant filed his own statement on oath and written argument. He based his argument on the fact that the payment of Plaintiff’s professional fees is contingent on Plaintiff winning all the briefs he has been assigned. But the 2nd Defendant has debriefed Plaintiff and has failed to pay him. I find this very absurd. Does he think that Plaintiff a legal practitioner is a charitable organization? I don’t think so. Definitely a workman is entitled to his wages. The Court has observed from the processes filed and the communication between the parties that the 2nd Defendant is in the habit of changing counsel without paying their professional fees. He has also failed to advance a satisfactory explanation to Exhibits A, B – I served on him. He has failed to realize that when a cheque is issued and it is returned unpaid that such act constitutes a criminal issue. I have carefully gone through the defence of the Defendants particularly 2nd Defendant who is the alter ego of 1st Defendant and I find no merit in it but at best it is very fluid and does not hold any substance. The issuance of the two Zenith bank cheques, which were stopped by the 2nd Defendant depicts malice, mischief and is dented with criminal intent and up till date he has failed or neglected to redeem such. From the foregoing I am not in doubt that the 1st and 2nd Defendant who is alter ego to 1st Defendant should make good the two cheques he issued forthwith. From this Judgment 2nd Defendant should be wary of playing with the professional fees of counsel. In the main it is my respectful view that the Plaintiff is entitled to Judgment without more”. It is therefore the order of Court that the 2nd Defendant pays the plaintiff the sum of N298,000.00 representing his outstanding professional fees – – and also the sum of N4,000.00 being bank charges for the two Zenith Bank cheques returned. As for the 5% on the Judgment asked, it is hereby refused as he is neither a money lender nor a bank.”

The Appellants position is that they had a good defence to the suit to warrant granting them leave to defend and the transfer of the suit “to the general cause list for hearing and determination”. Obviously, for an action to be transferred to the general cause list there must have been a defence on the merit, and it must not be a half-hearted defence – see UBA Plc v. Jargaba (2007) 11 NWLR (Pt.1045) 247, where the Supreme Court per Tobi, JSC added that –
“A case is not transferred to the general cause list as a matter of course or routine but on proper scrutiny of the averments in the Affidavit in support of the notice to defend. For this purpose, no flimsy, fanciful or frivolous defence adduced to prolong the case or play for time will suffice. It must be a real defence on the merit and not a caricature of it”.
Thus, it is his Affidavit that discharges the burden on a Defendant to show that the grounds for asking to be heard in his defence are not frivolous, vague or craftily designed to filibuster proceedings. He must satisfy the Court that there is a triable issue and a “triable issue or defence on the merit” is such that the Plaintiff will be expected to explain certain matters with regard to his claim or where the Affidavit throws some doubt on the Plaintiff’s claim.
In other words, the Court is simply required to look at the facts deposed to and see if they can prima facie afford a defence to the action. In that regard, a complete defence need not be shown. It will suffice if the defence set up shows that there is a triable issue – see F.M.G. v. Sani (1990) 4 NWLR (Pt.747) 688 SC and Ebong v. Ikpe (2002) 17 NWLR (pt.797) 504 where this Court held –
“It is not the duty of the Court at the stage of considering whether the Defendant has a defence – – to consider whether the defence will ultimately succeed as all that is needed at that state is to determine whether a good defence has been disclosed in the Defendant’s Affidavit – – -Again, the Appellant’s Affidavit disclosing his defence on the merit should not provide a cast-iron or an air-tight defence or disclose a defence beyond reasonable doubt before the suit could be transferred to the general cause list for hearing. — it is now a well established principle that — the court must call into play a measure of liberality when viewing the Affidavit of the Defendant in order to determine whether or not a defence on the merit is disclosed</a.”

It is also well settled that it is the duty of a trial Court to maintain an even balance in the consideration of the Affidavits filed by the parties respectively, in order to arrive at a just decision – see Abdullahi v. Buhari (2004) 77 NWLR (Pt.902) 278. In this case, the lower Court did not even refer to the Appellants’ Affidavits before it descended straight into the arena and castigated the 2nd Appellant in particular for not paying the Respondent’s professional fees, which was the subject matter of the action before the Court. Even more alarming and deplorable, without hearing any evidence from the parties, and without any verification of the allegations in the Respondent’s Affidavit, the lower Court proceeded to use same to find the 2nd Appellant culpable of habitually changing counsel without paying their professional fees, and criminal misconduct.
Worse still, the lower Court did not look at the defence put forward by the 1st Appellant, instead it lumped the two Appellants together, and tarring them with the same brush, held as follows –
“I have carefully gone through the defence of the Defendants particularly 2nd Defendant who is the alter ego of 1st Defendant and I find no merit in it but at best it is very fluid and does not hold any substance. The issuance of the two Zenith bank cheques, which were stopped by the 2nd Defendant, depicts malice, mischief and is dented with criminal intent and up till date he has failed or neglected to redeem such. From the foregoing I am not in doubt that the 1st and 2nd Defendants have no defence to this suit on the merits”.

The whole purpose of the procedure under Order 11 of the Anambra state High court (Civil Procedure) Rules is to facilitate the obtaining of short and quick Judgment without going to trial. The Rules are therefore for disposing, with dispatch, cases that are virtually uncontested having regard to the nature of the dispute. With particular significance to this appeal, Order 11 Rule 6 permits the Court to grant one Defendant leave to defend, and to also enter Judgment against another Defendant in the very same action.

The 1st Appellant is a limited liability company, and its defence is that it was the 2nd Appellant who engaged the services of the Respondent, and being a separate and distinct legal entity from its Managing Director, it is not liable to pay the said legal fees. On top of that, it raised the issue of improper service, which is a very serious matter, as no Court has jurisdiction to entertain any Suit in which the processes are not served or properly served. These are clearly triable issues in the real sense of the word – triable, and if the lower court had been a little more dispassionate, it would have seen that the suit belonged on the general cause list. The 2nd Appellant may have put up a wishy-washy defence to the Respondent’s claim, and the lower Court had every reason to enter Judgment against him. Unfortunately, it got blinded by the bad picture painted of the 2nd Appellant in the documents before it, and descended into the arena where it lost sight of its primary duty. In the circumstances, its Judgment cannot stand, and I so hold.

Thus, the appeal succeeds and is allowed. The Judgment of the lower Court delivered on the 28th of January 2008, is Set aside, and in its place I do hereby order that the Respondent’s action filed at the lower court should be transferred to the general cause list for trial before another Judge. There will be no order as to costs.

MOHAMMED L. TSAMIYA, J.C.A.: I was privileged to have read before now this illuminating judgment of my learned brother, Amina Augie, J.C.A, and I am entirely in agreement with the conclusions.

ABDU ABOKI, J.C.A.: I have had the advantage of reading in advance the judgment delivered by my Lord A. A. Augie JCA. I agree entirely with the reasoning and conclusion contained therein, but I will however like to make a small contribution of my own to the well considered opinion expressed in the lead judgment.

The 1st Appellant which is a limited liability company claimed that it was not properly served with the originating processes. The Respondent had not put up any useful defence against this serious allegation.
The objective of the service of court process is to give notice to the defendant of the claims against him, so that he may be aware of and be able to put up a defence to the claim, if he desires to do so. Any judgment given in the absence of proper service is given without jurisdiction and is liable to be set aside on appeal. See Kida v. Ogunmola (2006) 13.
Scott – Emukpor v. Ukaube (1975) 2 SC 41 NWLR pt.907 page 377.
P. N. Emerah v. Mazi Benson Duru (1998) 9 NWLR pt.564 page 86.

The issuance and service of a writ of summons on a defendant in a case are conditions precedent for the exercise of jurisdiction by the court over the subject matter of the action and over the defendant. In all cases where service of process is to be effected, it shall be by personal service, but where personal service cannot be conveniently effected, then the court may order for substituted service. See Kida v. Ogunmola (2006) 13 NWLR pt.997 page 377.
Ononye v. Chukwuma (2005) 17 NWLR pt. 953 page 90.
Idiuta v. Eiako (2005) 11 NWLR pt.936 page 349.
Teno Eng. Ltd. v. Adisa (2005) 10 NWLR pt.933 page 346.
Dickson v. Okoi (2003) 16 NWLR pt.846 page 397.

Service of process is vital under due process of law. See Ginda v. Kitta (1999) 12 NWLR Pt.629 at 21.
Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceeding void because the court has no jurisdiction to entertain it.
See Tubonemi v. Dikibo (2006) 5 NWR pt.974 page 565.
Ononye v. Chukwuma (2005) 17 NWLR pt.936 page 349.
Idiata v. Ejeko (2005) 11 NWLR pt. 936 page 349.
Onadeko v. UBN Plc. (2005) 4 NWLR pt 916 page 440.
Ayogu v. Nnamani (2004) 15 NWLR pt. 895 page 134.
Otobaimere v. Akporehe (2004) 14 NWLR pt. 894 page 591.
Mark v. Eke (2004) 5 NIVLR pt. 865 page 54.
Wema Bank Nigeria Ltd. v. Odulaja (2000) 3 SC 83.
Any judgment based on a process, which is not served is liable to be set aside. See Hypolite v. Egharevba (1998) 11 NWLR pt.575 page 598.

In the instant case, the absence of proper service has robbed the lower court of its jurisdiction to entertain the matter.
In the final analysis, and in addition to all that has been said in the lead judgment, this appeal succeeds and it is hereby allowed.
The judgment of the lower court delivered on the 28th January 2008 is hereby set aside, No costs shall be awarded.

Appearances

Chief I. M. Anah with I. N. Eze, Esq.For Appellant

AND

Dennis C. Maduechesi, Esq. appeared in personFor Respondent