EMPERION WEST AFRICA LIMITED v. AFLON LIMITED & ANOR (2014)

EMPERION WEST AFRICA LIMITED v. AFLON LIMITED & ANOR

(2014)LCN/7688(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of March, 2014

CA/A/193/2007

RATIO

PRACTICE AND PROCEDURE: SERVICE OF PROCESS; THE EFFECT OF THE FAILURE TO SERVE PROCESS OF COURT

It is trite law that where there is failure to serve process of court as required in this instant case, such failure to serve goes to the root of the case. This is because it is the process of the court on the defendant that confers on the court the competence and the jurisdiction to adjudicate on the matter. Service of process is therefore a condition precedent to the hearing of the suit. Where a party who ought to be served with process of court is not so served, such defendant is entitled Ex Debito Justifiaet to have the order or judgment of court set aside as a nullity. per. AMIRU SANUSI, OFR J.C.A.

PRACTICE AND PROCEDURE: SERVICE OF WRIT; WHETHER THE SERVICE OF WRIT IS NOT A MATTER OF COURT’S DISCRETION AND THE EFFECT OF THE FAILURE TO GIVE NOTICE OF PROCEEDINGS

In fact service of writ out of jurisdiction is not a matter of court’s discretion. It is provided in rules of court which must always be obeyed as they are not there for fun. Without service, there would be no valid appearance to be entered by a defendant in a suit even though a defendant can appear in protest or enter conditional appearance. Failure to give notice of proceedings to an opposing party in a case requiring service of process, is a fundamental defect or omission which renders such proceedings a nullity and which also robs the court of jurisdiction to adjudicate on the matter or suit. See Mr. Sylvester Mako vs. Barrister Felicia B. Umoh (2010) LPELR 4463; Owners of MV Arabella vs. Nigeria Agricultural Insurance Corporation (2005) 34 NSLQR (Pt.II) 109. per. AMIRU SANUSI, OFR J.C.A.

COURT: DUTY OF THE COURT; THE DUTY OF THE JUDGE TO ALWAYS STAY ON A HIGHER PEDESTAL THAN THE CONTESTING PARTIES BEFORE HIM AND THE ROLE OF THE JUDGE TO ACT AS AN UNBIASED UMPIRE

The law is trite that judge is expected to always stay on a higher pedestal than the contesting parties before him as it is only when he does that, that he will be able to see and appreciate the issues in dispute between the parties and resolve them according to law and the justice of the matter. But if he dares to jump into the arena of conflict, his face will be blackened by the grime of conflict and his judgment/decision will be impaired in favour of one of the parties against the other. Except when a judge/adjudicator maintains impartiality at all material times and circumstances, then the anul of justice will elude the parties and the society and the administration of justice will ultimately be stultified. As a matter of fact, a court as an impartial arbiter does not make a case for either party before it and in the course of its adjudication. It should avoid doing or saying anything capable of plunging into the arena of the dispute such as taking sides with any of the parties before it, as done by the learned trial judge in this instant case. In the case of Sodipo vs. Lemninkainen O.Y. (1986) 1 NWLR (Pt. 15) 220 Karibi-Whyte JSC had this to say on page 224 –
“In our adversary system of the administration of Justice, the role of the judge is to act as an unbiased umpire and to determine the issues before him in accordance with the facts placed before him…… in the discharge of those functions, the judge is expected to without supporting facts to go a step further than he is required for the determination of the issues before him.”
In the same vein, Supreme Court in Bakare vs. Apena (1986) 4 NWLR (Pt. 33) 1, warned that where procedure is ignored justice is usually at a loss, the judiciary in its image is worst in the encounter and the general public for whom the entire drama was meant to serve, ends up with low opinion of the judiciary. per. AMIRU SANUSI, OFR J.C.A.

COURT: JURISDICTION; WHETHER JURISDICTION MUST BE VESTED IN A COURT BEFORE THE RIGHTS OF THE PARTIES CAN BE DETERMINED AND WHEN IS JURISDICTION PROPERLY VESTED IN A COURT

Jurisdiction must be vested in a Court before the rights of the parties can be determined. See Kalu vs. Odili (1992) 6 SCNJ (Pt. 1) 76 at 90. This is because where the Court has no jurisdiction it cannot make binding declarations: Nyarko vs. Akowuah 14 WACA 426. Jurisdiction is properly vested in a Court when a party to be affected by an order of Court was properly served the processes. The failure to properly serve the processes is a fundamental vice that may, depending on the circumstances of each case, vitiate the whole proceedings no matter how well conducted: Okoye v. C.P.M.B. Ltd. (2008) 15 NWLR (Pt. 1110) 335 at 351; Alhaji J.A. Odutola vs. Inspector Kayode (1994) 2 NWLR (Pt 324) 1 at 15. Per. JOSEPH TINE TUR, J.C.A.

Before Their Lordships

AMIRU SANUSIJustice of The Court of Appeal of Nigeria

OFRJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSONJustice of The Court of Appeal of Nigeria

Between

EMPERION WEST AFRICA LIMITEDAppellant(s)

AND

1. AFLON LIMITED
2. ONE WORLD COMMUNICATIONS LIMITEDRespondent(s)

AMIRU SANUSI, OFR J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of the Federal Capital Territory (Coram U. A. Inyang J.) (“The lower court” for short) delivered on the 7th day of July 2008 dismissing the appellant’s motion on notice dated 8th September, 2005, wherein the appellant as applicant in the said motion sought among other reliefs before the lower court, an order setting aside the judgment of the lower court earlier delivered on the 25th of June 2005 in the absence of the applicant now appellant.

At the lower court, the first respondent as Plaintiff thereat, took a writ of summons dated 5/2/2004 seeking the undermentioned reliefs:-
a) The sum of N1, 312,723:85 being payment for equipment and services that were not supplied and rendered.
b) The sum of N880, 000:00 being rent of office and employment of 2 officers for 12 months.
c) The sum of N8, 000, 000:00 as general damages for breach of contract, and
d) The plaintiff claims 21% interest on the said sum of N1, 312,728:85k from 7th October 2003 until judgment and thereafter 10% interest on the total debt until liquidation.

The background facts which gave rise to this appeal as could be gleaned from the record of appeal are summarised as follows:-
The first respondent took a writ of summons dated 5th February, 2004 against the present appellant as first defendant and the second respondent as the 2nd defendant thereat, and sought the four aforesaid reliefs. According to the appellant/first defendant, it became aware of the suit filed against it by the 1st plaintiff (1st respondent) on Monday 15th August, 2005 when the lower court’s bailiffs came to its office to levy execution of the judgment of the lower court in the substantive suit. The appellant stated that on seeing that, it quickly referred the matter to its solicitors who without waste of time, took immediate step by conducting search at the lower court’s record and proceeded to file a motion to set aside the judgment of the lower court. The motion was argued at the lower court and the latter, ultimately dismissed the said motion on notice to set aside the judgment vide a 154 paged Ruling of the lower court delivered on 7th July, 2008.

Piqued by the ruling of the lower court, the appellant appealed to this court vide a notice of appeal dated 20th September, 2006. Later with leave of this court granted on 2nd June 2010 the appellant amended its Notice of Appeal by inclusion of some additional grounds of appeal. The Amended Notice of Appeal containing a total of fifteen grounds of appeal was filed on 4th June, 2010.

Perhaps it will be apt to set out the substance of the motion on notice dated 8/9/2005 which appeared on pages 36-62 of the Record in which the appellant (1st defendant) prayed the court to set aside the judgment and which was later dismissed by the lower court vide its 154 paged ruling delivered on 7/7/2008 and which also led to the institution of this appeal by the appellant.

In the motion on notice dated 8th of September, 2005, the appellant as applicant prayed the lower court to grant him the under listed reliefs:-
a) AN ORDER setting aside the judgment of this Honourable Court delivered against the applicant on the 24 day of June 2005
b) AN ORDER setting aside the purported service of the Writ of Summons dated 5th February, 2004 on the applicant on 4th March, 2004 by plaintiff/judgment creditor/respondent (“judgment creditor/respondent”) through DHL Courier Service.
c) AN ORDER of injunction dismissing or striking out SUIT NO: FCT/HC/CV/222/03
d) AN ORDER staying execution of the Judgment on SUIT No: FCT/HC/CV/222/03 delivered on 24 day of June 2005, pending the hearing and final determination of this application
e) AN ORDER of injunction restraining the judgment creditor/respondent and the deputy sheriff of the High Court of the Federal Capital Territory in Zuba, Abuja (whether by themselves or by their representatives, servants and/or agents or by whomsoever otherwise), from making any or further attempts or steps to execute and/or enforce the judgment of this Honourable Court delivered on the 24th day of June 2005 against the applicant pending the hearing and final determination of this application.)
f) AND for such ORDER or for the ORDER as this court may deem fit to make as the circumstances.

The motion was anchored upon five grounds which are as follows:-
i. That the applicant was not served with the originating processes (the writ of summons and statement of claim) in the suit.
ii. That the applicant was not served with any hearing notice whatsoever of the dates on which the matter was heard and to attend court on the date judgment was delivered by the court.
iii. There was no proper service of the originating processes and the hearing notices of the court on the applicant.
The writ of summons in this suit No FCT/HC/CV/222/03, being a writ for service outside the Jurisdiction of the court did not conform with the mandatory provisions of the sheriffs and Civil Process Act.
iv. That the judgment creditors/respondent’s suit is incompetent, and the court lacked the jurisdiction to adjudicate on the suit.
v. That the judgment creditor/respondent’s statement of claim filed in this matter did not disclose any reasonable cause of action against the applicant.

In opposition to the above mentioned appellant’s/applicant’s motion on notice, the plaintiff/1st respondent filed a counter affidavit and attached to it a written address. On its part, the 2nd respondent decided to file a motion on notice dated 10th October 2005 and sought an order staying the execution of the lower court’s judgment pending the determination of the appeal; it had also filed on 20th of September, 2005 (see pages 102-111 of the record).
Also upon being served with the 1st respondent’s counter affidavit he filed a further affidavit dated 20/10/2005 as well as a further written address dated 26/11/2005 (see pages 95 to 100 of the record)

It is pertinent to say at this stage, that on 10th November, 2005, the lower court took arguments of all learned counsel to the parties on the appellant/applicant’s motion to set aside its judgment and adjourned to 28th November 2005 to deliver its ruling on same. On the adjourned day, the lower court, instead of delivering its ruling on the appellant’s/applicant’s application it earlier heard on 10/11/2005, curiously decided to suo motu, consolidate the applicant’s application dated 28/9/2005 which it had already heard, with the 2nd respondent’s motion dated 10/10/2005, which it had not heard and it also went further to order counsel to the parties to adopt the written addresses of the parties and it subsequently adjourned the case to 31st March 2006 for delivery of ruling in the two “consolidated” applications. The above queer and alien procedure adopted by the trial judge, is borne out in the learned trial judge’s ruling now being appealed against when he remarked at page 216 of the record, stated thus:-
“In line with the above decision, I had to sit down with my staff to do the consolidation of the motions before coming up with a single consolidated motion on notice on 14th February 2006 which was later today, 7th July 2006 made available to counsel for the parties for their comments, if any. After going through the consolidated motion (sic) counsel for all the parties agreed that this was what they really intended to present before this court” (emphasis supplied).

I will address or comment on the above later in this judgment. But before doing so suffice it to say, that the trial court finally dismissed the two consolidated motions when it held at page 152 of its Ruling contained on page 366 of the Record of the lower court as below:-
“All in all and on a cool, calm and objective consideration of all the issues raised in the two interlocutory application (sic) of the 1st and 2nd applicants, I have come to the inescapable conclusion that they totally lack merit and substance.
Accordingly, I hereby dismiss the consolidated motion (sic) on notice of 14th February 2006 of the two applicants as being completely unmeritorious and lacking in substance and good faith.”

Obviously, the appellant became aggrieved with the Ruling of the lower court delivered on 7th July 2006, hence it appealed to this court against the said Ruling. To that effect, and as I said earlier, it filed a notice of appeal dated 20/9/2005 which was later with leave of this court granted on 2/6/2006, amended it to include some additional grounds of appeal. The amended notice of appeal contained fifteen grounds of appeal. In keeping with the rules and practice applicable in this court, parties filed and exchanged briefs of argument. The appellant herein raised four issues for the determination of this appeal from the fifteen grounds of appeal.

The four issues formulated by the appellant are reproduced hereunder:-
(i) Whether in the circumstances of this case, the lower court was wrong when it dismissed the appellant’s motion on notice dated 8th September 2005 and declined to grant, inter alia, an order to set aside the judgment of the court that was delivered on 24th June 2006. (Five Grounds 1, 4, 5, 12, 13 and 14).
(2) Whether the writ of summons in suit No. FCT/HC/CV/222/2003 did not comply with the provisions of Sections 97 and 111 of the Sheriff and Civil Process Act and is therefore incompetent and the lower court was wrong when it declined to set aside the purported service of the incompetent writ of summons in the suit at the lower court. Grounds 6 and 7).
(3) Whether the lower court was wrong when it decided that the Appellant was property served with the writ of Summons, Statement of Claim and other Originating Processes in suit no. FCT/HC/CV/222/2003. Grounds 8, 9, 10, 11 and 13).
(4) Whether in the circumstances of this case, the lower court acted wrongly in awarding an unprecedented amount of N75,000 (Seventy – Five Thousand Naira) as costs against the appellant.

On its part, the first respondent formulated five issues for the determination of the appeal out of the fifteen grounds of appeal which said issues are set out below:-
(a) Whether the appellant’s motion that was dismissed was competent in view of the applicable Abuja High Court Civil Procedure Rules (culled four ground 4)
(b) Whether the High Court has power to set aside its own judgment apart from default judgment and in compliance with the Rules of the court (Ground 13)
(c) Whether the appellant was able to prove that the court processes were not served on them (Grounds 1, 7, 8, 9, 10 and 11)
(d) Whether the writ of summons and service of same complied which the provisions of Section 97 and 111 of the Sheriff and Civil Process Act and are therefore competent and so the trial judge was right to have declined to set them aside. (From Ground No.6), and
(e) Whether an award of cost which was discretionary can be appealed against without the leave of the trial court and this Honourable Court. (From Ground 5).

I intend to approach this appeal through the guidance of the four issues raised in the appellant’s brief of argument and the issues will be considered seriatim.

Issue No.1
This issue queries whether the lower court was right in refusing to set aside its judgment delivered on 24th June 2005. The appellant submitted that the lower court adopted a wrong procedure by consolidating his motion dated 8/9/2005 with the motion on notice filed by 2nd defendant/respondent dated 14/2/2006 suo motu and finally their interlocutory motion after it had already taken the appellant’s motion and adjourning same for ruling. He argued that the lower court was wrong to have dismissed a motion on notice dated 14/2/2006 as indicated in its ruling because it consolidated his motion dated 10th October 2005 and NOT 14th February 2006 which had never existed.
See Pauline Akpan vs. Authonia Etim Udoh (2008) 3 NWLR (Pt.1075) 590 at 606; Zungant Retdiwas v. Dakyep Juran (1992) 8 NWLR (Pt.259) 358 at 367 para G-H; Olchoman vs. Omosi (1965) NMLR 325 and UBA vs. Adioru (1990) 6 NWLR (Pt.156) 264; Olujitan v. Oshetoba (1992) 5 NWLR (Pt.241) 326 at 334/335.

The learned appellant’s counsel submitted that the trial judge descended into the arena of litigation when he acted not only as a party but also as counsel for the parties when he stated in the ruling that he sat with his staff to consolidate the two motions on notice even though the appellant’s motion he had earlier heard was adjourned for ruling on appointed date, but on that day he decided to consolidate it with the later motion filed by the 2nd defendant/respondent. He said by adopting that strange procedure he descended into the arena which as a judge, he is not supposed to do. See the cases of Sodipo v. Lemnikainen Oy (1986) 1 NWLR (Pt.15) 220 at 224; Bakare vs. Apena (1986) 4 NWLR (Pt.33) 1; Akpan vs. Authonia Etim Udoh (supra). He argued that besides the fact that it is only any of the party’s counsel who should apply or move the court to consolidate their motions, the learned trial judge was wrong to have, suo motu, consolidated them even when the conditions for consolidation were not met or satisfied as there were no similar issues of facts and law to be considered in the two applications. This is so, contended the learned appellant’s counsel, because his motion was merely seeking the setting aside of the lower court’s judgment which was, according to him, incompetent due to non-service of originating processes and the competence of the writ of summons, due to noncompliance with the provisions of Sections 97 and 111 of Sheriff and Civil Process Act, while the other motion filed by the 2nd defendant/respondent simply sought for an order for stay of execution of the lower court’s judgment. He then argued that the court had taken over the job of the parties and their counsel, hence the trial court’s decision to consolidate the two motions was erroneous. See Diab Basir v. Complete Home Enterprises (Nigeria) Limited (1977) 5 SC 1; Hameed Torola vs. Olusola William (1982) 7 SC 27 at 58.

The learned appellant’s counsel went further to submit that by several remarks made by the learned trial judge in his ruling now being appealed against, the latter was actuated and influenced by prejudice, bias ill-will and contempt for the appellant and its counsel. The learned counsel for appellant in his brief of argument cited excerpts in the lower court’s ruling at pages 132-133 of the Record as evidence of the trial judge’s expression of bias, prejudice etc, and he also submitted that the prejudice, ill-will and contempt towards the appellant’s counsel had influenced the decision of the trial court and had thereby led to a miscarriage of justice and had robbed the court of the gesture of impartiality as enjoined by the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. He then urged this court to set aside the ruling of the lower court dismissing his application to set aside the lower court’s judgment.

Issue No.2
This issue poses a question whether the issuance of the writ of summons on suit No. FCT/HC/CV/222/2003 was in strict compliance with the provisions of Sections 97 and 111 of Sheriff and Civil Process Act and whether it was not incompetent in view of the non-compliance with the said provisions.
The appellant submitted that one of the grounds of his application dated 8/9/2005 was that the writ of summons in the said suit failed to comply with the provisions of the Sheriff and Civil Process Act (hereinafter referred to as “the Act”). Learned appellant’s counsel submitted that the lower court admitted the non-compliance with the Act where he stated “this case has its own in stigma of human error or omission. I must admit this fact right from the outset” (see page 245-254, He also referred to a portion in the lower court’s ruling at pages 245/246 where it, the lower court admitted the non-compliance with the provisions of the Act but maintained that the law requires substantial compliance and not full compliance with the provisions of a statute or rules of court, especially in a situation where full compliance will lead to resorting to technicalities rather than doing substantial justice.

The learned counsel for the appellant argued that service of Writ of Summons outside the court’s jurisdiction without strict compliance with the Act renders that service incompetent and void. He cited and relied on the case of Owners of MV “Arabella vs. Nigerian Agricultural Insurance Cenprivation (2008) 11 NWLR (Pt.1097) 182 at 207; Drexel Energy Yard Natural Resources Ltd vs. Trans International Bank (2008) 18 NWLR (Pt.1119) 388; Odua Investment Company Limited vs. Talabi (1997) 10 NWLR (Pt.523) 1 at 51/52 para G-F; NERA vs. Onah (1997) 1 NWLR (Pt.484) 680; Adegoke Motors vs. Adesanya (1989) 3 NWLR (Pt.109) 250.

Learned counsel urged on behalf of the appellant on this issue, to hold that the issuance of the writ of summons in the suit by the lower court, it failed to comply with Section 97 of the Sheriff and Civil Process Act as was even admitted by the lower court and urge us to hold that same was void and that the purported service of the incompetent writ was also incompetent and to set it aside.

Issue No.3
This third issue queries whether the lower court was right when it held that the appellant was properly served with the Writ of Summons, statement of claim and other originating processes in suit No: FCT/HC/CV/222/2003. Here, the appellant submitted that it was not served with the originating court processes in the suit and that it only became aware of their existence when the Lagos High Court bailiffs attempted to enforce the lower court’s judgment as they averred in paragraphs 4-9 of the supporting affidavit at pages 30/40 of the Record.

He stated that the purported service allegedly made by the bailiffs on it’s ‘Admin Manager’ was false as there was no officer holding such position in the appellant’s company. He said the lower court was wrong in believing or relying on the bailiff’s affidavit of service as there was no legal basis for such belief by the court. He said it is settled law, that affidavit of service by a bailiff is merely a prima facie evidence of service which is rebuttable see Dr. Okoye & Anor vs. Center Point-Merchant Bank Limited (2008) 15 NWLR (Pt.1110) 335 at 352 to 355 paras G-H; Alhaji Dahiru Mohammed vs. Taju Mustapha (1993) 5 NWLR (Pt.292) 222 at 232 para D-F and 233 para F.

The learned appellant’s counsel went further to analyse and highlight the conditions laid down in Sections 6 and 9 of the Enforcement of judgment and Service of Process Rules as contemplated under Section 96(2) of Sheriff and Civil Process Act to buttress his argument that the purported service of the writ of summons was not proper or not incompliance with laid down rules and regulation on service of writ by the bailiff. He said mere swearing to an affidavit of service by bailiff was not sufficient to prove service of writ and even the lower court conceded to that, when it stated on page 138 of the Record that “since the plaintiff’s counsel had no clear evidence of such service of court process in the record of the court.” On the court’s stance and reliance on affidavit of service deposed to by the bailiff to which no DHL shipment Airway Bills “was attached; the learned appellant’s counsel submitted that there was no evidence that prior leave was sought and obtained to serve through that means and the appellant even deposed that it had never received any court document from DHL courier Service.

It was further contended by the appellant’s learned counsel that, there were conflicts between the affidavits of service by courier sworn to by the bailiff on one hand and the affidavit sworn to by Mr. Moses de-Michaels in support of the appellant’s application both centering on whether the appellant was actually served or not. That, being so, the trial judge ought to have called oral evidence to resolve the conflict which was apparent in that situation. He said failure to call oral evidence to resolve such conflict rendered the lower court’s decision invalid. See Joseph Falobi vs. Elizabeth Falobi (1996) 9-10 SC 1; Acheji Gnode Mosi & 4 Ors vs. Chief Alete (1998) 12 NWLR (Pt.578) 402 at 419 (C-H) Crecograkie Nigeria Limited vs. E.B. Ukin (2004) 1 NWLR (Pt.855) 519; Raphael Ejezie & Anor vs. Christopher Anuwa & Ors (2008) 12 NWLR (Pt.1101) 488 para E-E. He then urged us to hold that the appellant was not served with the originating court processes on the suit.

Issue No.4
This issue deals with award of costs by the lower court against the appellant. The appellant submitted that the lower court’s award of a colossal sum of N75, 000:00 which was three times the amount awarded against the 2nd defendant/respondent had no basis. He said by the award of such staggering heavy sum against the appellant could make an looker infer that such award was influenced by ill-will, contempt and sentiments portrayed in the lower court earlier remarks or expressed by the court against the appellant’s counsel or a manifestation of the lower court’s resolve to deal deadly blow on the appellant. The cost awarded according to the learned appellant’s counsel was meant or aimed at punishing the appellant. He submits that though a court has the discretion to award costs, but such award should not be imposed as punishment on a party who is to pay them nor are they awarded as bonus to the party who received them. It is meant to serve as indemnity for out of pocket expenses and as compensation for the time wasted and fair expenses incurred by a litigant. See PSO Olasope vs. National Bank of Nigeria Limited & Anor (1985) 3 NWLR (Pt.11) 147 at 152 para B. Muhammed Buhari & Anor vs. Chief Olusegun Obasanjo & Others (2005) 2 NWLR (Pt.910) 241 at 602 paras B-C. He again stated that the trial court further manifested its bias or sentiment when in awarding the huge sum as cost, it also ordered that it should be paid “immediately” as well as the advice for enforcement of the judgment as ordered by the court while awarding same. The learned appellant’s counsel also argued that want of service of the writ and absence of proper service of the originating processes had rendered the cost awarded a nullity ab initio. Moreso, since the lower court lacks jurisdiction to hear the suit, it therefore lacked competence to award the punitive costs or to even make other orders that the first respondent did not even pray or ask for.
Finally, in urging this court to answer this issue in its favour, the appellant prayed this court to set aside the costs awarded by the lower court.

The first respondent replied to the appellant’s issues numbers 1 and 2 together. He submitted that the judgment of the lower court which the appellant sought to be set aside was delivered on 21/7/2005 while his motion to set aside the judgment was filed on 16/8/2005 and motion for extension of time was however withdrawn on 10/11/2005 and was accordingly struck out by the lower court. The appellant then proceeded with his motion he filed on 5/9/2005 containing all the prayers in the motion earlier withdrawn and struck out. The learned counsel for the first respondent then argued that the lower court could not set aside its own judgment except in a situation which it was sought to be set aside is a default judgment by virtue of Order 35 Rule 5 of the High Court of Abuja (Civil Procedure) Rules 2004. He said by virtue of the provisions of the above mentioned rule application to set aside judgment in default of appearance must be filed within six days after the trial or within such longer period as the court may deem fit to make in the circumstances. He said the application in which the appellant sought to set aside the judgment was not filed within six days after the delivery of the said judgment on 21/7/2005, as the motion was only filed on 5/9/2005. He therefore did not follow the procedural rule of the court which gave or stipulated period within which to apply for setting aside of default judgment and the appellant cannot be heard to be covered by the principle of fair hearing under Section 36 of the 1999 Constitution, since rules of court are made to be followed and not for fun. See Omabuwa vs. Ombofusho (2006) 37 WRN 70 at 91; Noga Hotels International vs. Nicon Hotels Ltd (2007) 41 WRN 125. He then argued that failure on the part of the appellant to file his motion to set aside the judgment of the lower court and by not seeking extension of time to apply for its being set aside is fatal and his motion is therefore incompetent and the prayers therein are liable to be struck out or dismissed as rightly done by the lower court.

On the third issue for determination which had to do with service of Writ of Summons and Statement of Claim, the first respondent’s counsel submitted that it was not true that the appellant was not served with those processes. He stated that in his counter affidavit, he extensively explained and attached exhibits to establish that the appellant was duly served with those documents/court processes in the case as agreed by the trial court. He said that the said documents were duly certified by the lower court’s registrar and also contained in the court file. The learned counsel however curiously conceded that they were not contained in the record or were missing in the record of appeal along with his counter affidavit and the exhibits attached thereto and that all of them were not transmitted along with the record, adding that he was not invited for settlement of the record of appeal. He said he later applied successfully to the court for extension of time to file a Supplementary or Additional Record of Appeal. He said attempts were made to serve the appellant with originating processes but both the appellant and 2nd respondent refused to sign the proof of service, hence the bailiff deposed to an affidavit admitting serving them. He said he then decided to apply for leave to serve them through substituted means i.e. through DHL Courier service.

Learned counsel repeatedly maintained that all the processes were duly served on the appellant only that the latter had the habit of not signing proofs of service of court processes and sometimes they refused the bailiffs entry into their premises. With regard to hearing notices, the first respondent submitted that such hearing notices were always duly served on the appellant. He further argued that the fact that at one time the appellant as 1st defendant, conceded to the move to settle the matter out of court knocks the bottom out of his assertion or stance that he was never aware of the suit filed against him by the 1st respondent/plaintiff. On the appellant’s assertion that the court was wrong in not calling oral evidence to resolve conflict in affidavits, the learned first respondent’s counsel submitted that it is not always that a court would call oral evidence to resolve conflict in affidavits as such conflict can be resolved by dispassionate assessment of the two affidavits or when one of the affidavit is patently unreliable or had contradicted itself or by documentary evidence as in this instant case. He stated that there was ex parte application to serve the appellant by substituted means i.e. through courier service, contrary to the appellant’s assertion that no leave to serve by substituted means i.e. via courier service was obtained.

Then on issues Nos. 4 and 5, the learned 1st respondent’s counsel submitted on the issue of alleged non-endorsement of the Writ of Summons that the writ was signed by the Registrar on 5/2/2004 and the judge ordering same to be served in Lagos State. He stated that he deposed to that in its counter affidavit and had even attached copy of the Writ of Summons and stated that the service was made through courier service DHL as shown in the supplementary Record. He said the appellant only altered the unsigned copy of the Writ of Summons it obtained from the court’s registry. He went further to argue that the date on the Writ of Summons referred to and relied on by the appellant had its date altered from 5/2/04 to 15/2/2004. He still maintained that the Writ of Summons was duly endorsed by the judge for service in Lagos State, adding that sufficient compliance with the provisions of Section 97 and 111 of the Sheriff and Civil process Act was made. He relied on the decided authorities cited and relied on by the appellant/applicant’s supra. He denied that the learned trial judge did admit in his ruling, that, the writ of summons failed to comply with the said provisions.

With regard to issue No.5 in the respondent’s brief which had to do with award of costs by the trial judge, the learned respondent’s counsel submitted that the court had discretionary powers to award costs to a successful party after viewing the circumstance surrounding the case.

He opined that question of award of cost is not appealable and even prior leave of court must be sought and obtained before raising such ground of appeal which said leave was not sought and obtained by the appellant herein, hence the issue is incompetent and liable to be struck out. He urged that such issue be struck out for want of leave.

The learned 1st respondent’s counsel at the tip end of his brief decided to reply to the issue of consolidation of the two motions he made suo motu, by the trial judge after he had already heard the appellant’s motion and apparently adjourned same for ruling but just to later turn back and take the 2nd defendant’s motion for stay of Execution and purportedly consolidating them. According to the learned respondent’s counsel, the lower court was right in doing so for speedy determination of the said two motions. On the issue of alleged display of bias by the learned trial judge, the counsel defended that posture as it was triggered or informed by the conduct and antics thrown on him by the appellant’s learned counsel which made the trial judge to be pained and worried, hence he went ahead to express his mind on them. Again, in a disjunctive manner of presentation, the learned respondent’s counsel proceeded to submit on the issue of alleged non-service of the writ and court processes on the appellant and stated that if they had actually not been aware of the existence of the Writ served on them, they would not have agreed with the move of out of court settlement as initially consented by the parties. He again went further to proffer argument on the motion for stay of execution filed by the 2nd respondent even though the 2nd respondent did not appeal or file respondent’s notice. I will therefore not bother to comment on that here.

In determining this instant appeal, I think it will be apt to first consider the second issue for determination which relates to issue of service of the initiating processes in this appeal particularly the Writ of Summons and statement of claim on the 1st defendant, now appellant. Proper service of such processes on the 1st respondent is to my mind, a condition precedent as it also touches on issue of jurisdiction which obviously gives fetus to the competence of the lower court to entertain, hear and adjudicate on the matter. See Okafor vs. Igbo (1991) 8 NWLR (Pt.210) 476 at 484 paragraph F.
The issue of proper service of initiating process is very fundamental since once there is no proper service of same, the whole or entire proceedings will be rendered a nullity no matter how beautifully or excellently conducted. If it is ascertained by cogent evidence that the defendant in a suit/appeal was not served with processes such failure to service the initiating processes would result in a fundamental defect affecting the competence of the trial court’s proceeding and would render it a nullity ab initio. See Hauwa vs. Aderole (1987) 4 NWLR (pt. 67) 941; Dickson vs. Ogoi (supra).

Having posited above, I shall now consider the affidavit evidence adduced by both parties in order to ascertain whether or not the appellant was actually not served with the Writ of Summons, statement of claim and other court processes.

In its affidavit supporting the motion to set aside the judgment of the lower court the following averments of the deposed to in the supporting affidavit are relevant:-
“Paragraph 4
That the applicant was not served with the writ of summons and statement of claim in this matter.
Paragraph 5
That the applicant was not served with any hearing notice whatsoever of the dates on which the matter was heard and to attend court on the date judgment was delivered by this Honourable Court in the matter.
Paragraph 6
That on Monday, 15th August, 2005, at about 2.00pm, some persons claiming to be court bailiffs came to the applicant’s offices and attempted to levy execution of the judgment of the court which was delivered on 24th June 2005 in the matter.
Paragraph 8
That I was informed by Mr. Evi Obieroma, of Counsel in the law firm of Udo Udoma & Belo-Osagie and I verily believe as follows:
a. That on 16th August 2005, he applied and conducted a search on the court’s file and found out that judgment in this matter was delivered on 24th June 2005 against the Applicant and the 2nd Judgment Debtor/Respondent jointly and severally. Annexed hereto and marked as Exhibit A is the Applicant’s Solicitors, application dated 15th August 2005 to conduct the search.
b. That one Sola Oladipo, a Bailiff of the High Court of justice, Ikeja, Lagos State by an Affidavit of service sworn to on 6th February 2004 deposed to the fact that the Writ of Summons, Statement of Claim and enrolment of Order were on 6th February 2004 at 12.35 pm served on the Applicant through an “Admin Manager”, whose name was not stated. Annexed hereto and marked as Exhibit B is the certified true copy of the bailiff’s affidavit of service.
c. That there were no endorsements as required by law on the writ of summons that it was for service outside jurisdiction. Annexed hereto and marked as Exhibit C is the certified true copy of the writ of Summons.
d. That there were no evidence or Proofs of service of any Hearing Notices to the Applicant when the matter was heard on 11/5/04, 18/1/05, 23/2/05, 28/4/05, 18/5/05, 31/5/05, 1/6/05 and 24/6/05 when the judgment was delivered.
e. That on 2nd March 2004 when the Honourable Trial Judge observed that there was no clear evidence of personal service of the originating court processes on the Applicant in the record of the court, His Lordship, suo motu, urged the Plaintiff’s Counsel to put the Applicant and 2nd Judgment Debtor Respondent on notice through DHL courier service and file a proof of service in court.
f. That DHL Trace of Shipment or proof of service was not exhibited to the Judgment creditor Respondent counsel’s Affidavit of Service sworn to and filed on 22nd March 2004. Annexed hereto and marked as Exhibit D is the Affidavit of Service.
g. That the Judgment Creditor/Respondent did not apply for leave of the Court or any order to serve by DHL courier services or any other substituted means, the originating and other court processes on the Applicant
h. That it will serve the course of justice to grant this application.
9. That the position or designation of “Admin Manager” on which officer one sola Oladipo, a Bailiff of the High Court of justice, Ikeja, Lagos State purported to have served the Writ of Summons, Statement of Claim and enrolment of Order were on 6th February 2004 at 1235 pm does not exist in the Applicant.”

The learned appellant’s counsel alleged that he conducted search in the lower court’s registry. The search conducted in the registry led to a reprint which were exhibited and marked Exhibits B and D. The facts revealed by the search conducted by the appellant/applicant include the followings:-
a) “Judgment in this matter was delivered on 24th June, 2005.
b) The Court on 28/11/2003 granted the Judgment Creditor/Respondent its leave to issue and serve the Writ of Summons on the Judgment Debtors III Lagos State, outside the jurisdiction of the court.
c) The Writ of Summons is dated 6th February, 2004 and filed on 15th February, 2004.
d) One Sola Oladipo, a bailiff of the High Court of Lagos State, Ikeja Judicial Division by an Affidavit of Service sworn to all 6th February 2004 (See Exhibit B) deposed to the fact that the writ of summons, statement of claim and order of the court were on 6th February, 2004 at 12.35 pm (9 days before the writ was filed) served on the Applicant through a purported Admin Manager, whose name was not stated therein.
e) There is no copy of the writ of Summons which was endorsed accordingly, by the bailiff of the Lagos High Court that contains an authentication of such signature of the bailiff by a judge of the Lagos High Court in Proof of service of the Writ of Summons dated 5th February, 2004 on the Applicant.
f) The Honourable Justice U A. Inyang in his judgment which was delivered on 24th June, 2005 observed thus: “On the 2nd day of March, 2004, Mr. Akin Adewale appeared in Court for the Plaintiff, represented by its Managing Director, Dr. Akin Fapohunda the learned counsel for the Plaintiff told the Court that the Defendants appeared to have been duly served with the Court Processes. But the trial Judge observed that since the Plaintiff Counsel had 110 clear evidence of such service of Court processes in the record of the Court, the Defendants were urged to be put on notice through DHL Courier Service and proof of service filed in Court by learned Counsel Adewale. The case there and then adjourned to the 22nd day of March, 2004 for further mention.”
g) The Affidavit of service of the Writ of Summons sworn to by Mr. Akin Adewale Esq., sworn on 22nd March 2004 (See Exhibit O) did not disclose or exhibit any trace of shipment usually issued by DHL in proof of service of the originating court processes on the Applicant
h) There were no proofs of service of hearing notices on the Applicant when the matter was tried/heard on 11/05/04, 18/01/05, 23/02/05, 28/04/05, 18/05/05, 31/05/05, 01/06/05 and 24/06/05 when judgment in the matter was delivered.
i) The Writ of summons dated 5th February, 2005 in the court’s file which writ was purportedly served on the Applicant was not endorsed for service outside jurisdiction in Lagos State.
j) The Judgment Creditor/Respondent did apply or file any I application for the court’s leave of substituted service of the originating court processes on tile applicant.

It is the case of the appellant that although the plaintiff/respondent alleged that the appellant was served with originating summons by substituted means through courier service (DHL), the proof of the alleged service by courier was not established, as there was no evidence of shipment normally issued by DHL in proof of such service. Also it is the case of the appellant that there was no leave sought and obtained by plaintiff/respondent from the lower court for service of process outside the jurisdiction of the lower court. It is also his contention that no proof of service of hearing notices on the applicant of the proceedings held on 11/5/2004, 18/1/2005, 23/2/2005, 28/4/2005, 18/5/2005, 31/5/2005, 1/6/2005 and 24/6/2005, when judgment was delivered.

On the other hand, the case of the plaintiff/respondent is that the appellant/applicant was duly served with writ of summons and statement of claim and that the appellant was fully aware of the existence of the suit against it before the lower court.
The learned respondent’s counsel also maintained that, leave was sought and obtained to issue and serves the writ of summons on the appellant and 2nd defendant/respondent on 5th February 2004 which was duly signed by the lower court’s registrar to disprove the appellant’s allegation that it was not served with the writ of summons, statement of claim and other court processes. The plaintiff/2nd respondent’s made the following averments in his counter affidavit dated 19/9/2005 contained in the Supplementary Record of Appeal. The relevant averments are reproduced hereunder:-
Counter Affidavit
“Paragraphs
4) That the Applicant was not served with the writ of summons and statement of claim in this matter.
5) That the Applicant was not served with any Hearing Notice whatsoever of the dates on which the matter was heard and to attend court on the date Judgment was delivered by, this Honourable Court in the matter.
6) That on Monday, 15th August 2005, at about 2.00 pm, some persons claiming to be court bailiffs me to the Applicant’s offices and attempted to levy execution of the judgment of the Court which was delivered on 24th June 2005 in the matter.
Paragraph 8
That I was informed by Mr. Evi Obieroma, of Counsel in the law firm of Udo Udoma & Belo-Osagie and I verily believe as follows:
a. That on 16th august 2005, he applied and conducted a search on the court’s file and found out that judgment in this matter was delivered on 24th June 2005 against the Applicant and the 2nd Judgment Debtor/Respondent jointly and severally.
Annexed hereto and marked as Exhibit A is the Applicant’s Solicitors’ application dated 15th August 2005 to conduct the search.
b. That one Sola Oladipo, a Bailiff of the High Court of justice, Ikeja, Lagos State by an Affidavit of service sworn to on 6th February 2004 deposed to the fact that the Writ of Summons, Statement of Claim and enrolment of Order were on 6th February 2004 at 12.35 pm served on the Applicant through an “Admin Manager”, whose name was not stated. Annexed hereto and marked as Exhibit B is the certified true copy of the bailiff’s affidavit of service.
c. That there were no endorsements as required by law on the Writ of Summons that it was for service outside jurisdiction. Annexed hereto and marked as Exhibit C is the certified true copy of the Writ of Summons.
d. That there were no evidence or Proofs of service of any Hearing Notices to the Applicant when the mailer was heard on 11/5/04, 18/1/05, 23/2/05, 28/4/05, 18/5/05, 31/5/05, 1/6/05 and 24/6/05 when the judgment was delivered.
e. That on 2nd March 2004 when the Honourable Trial Judge observed that there was no clear evidence of personal service of the originating court processes on the Applicant in the record of the court, His Lordship, suo motu, urged the Plaintiff’s Counsel to put the Applicant and 2nd Judgment Debtor Respondent on notice through DHL courier service and file a proof of service in court
f. That DHL Trace of Shipment or proof of service was not exhibited to the Judgment Creditor/Respondent Counsel’s Affidavit of Service sworn to and filed on 22nd March 2004. Annexed hereto and marked as Exhibit D is the Affidavit of Service.
g. That the Judgment Creditor/Respondent did not apply for leave of the Court or any Order to serve by DHL courier services or any other substituted means, the originating and other Court processes on the Applicant
h. That it will serve the course of justice to grant this application.”

In the issue of want of leave before the alleged service by substituted means, the respondent stated that the appellant had been put on notice before leave for substituted service application was sought and obtained. He argued that the appellant was duly served but it merely abstained from participating in the trial. He argued that if the appellant was not aware of the suit, he would not have made move for out of court settlement.

Now from the contents of the relevant paragraphs in the supporting affidavit to the motion and those on the counter affidavit reproduced above there is no doubt that there are conflicting affidavit evidence. It is perhaps the reason why the learned appellant’s/applicant’s counsel contended that the trial court was in error to have resolved the conflict in favour of the 2nd respondent without calling oral evidence. No doubt it is settled law, that when a court is faced with affidavits which are irreconcilably in conflict, the judge hearing the case in order to resolve the conflict properly, should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call. See Akinsate vs. Akindatere (1966) 1 All NLR 147 at 148; Eboh & Ors vs. Oke & Ors (1974) 1SC 179 at Pp. 189-190; Olu-Ibukun & Anor vs. Olu-Ibukun (1974) 2 SC 41 at 48; Uku & Ors vs. Oku Magba & 3 Ors (1974) 3 SC at 56, 64-65; Falobi vs. Falobi (1976) 9-10 SC 1. But it is equally the law that it is not only by calling oral evidence that such a conflict in affidavit evidence can be resolved by authentic documentary evidence which support one of the affidavits in conflict with another. In fact, where a court has enough documentary evidence at its disposal, it can, suo motu, resolve conflicting affidavit evidence by resorting to the documentary evidence. See Ezegbu vs. First African Trust Bank Ltd and Anor (1992) 1 NWLR (Pt. 220) 699 at 720; Nwosu vs. Imo State Environmental Sanitation Authority and Ors (1990) 4 SCNJ 97; (1990) 2 NWLR (Pt. 135) 689.
The question now is was the lower court right in resolving the conflict in favour of the respondent against the appellant/applicant?

In the first place, I have rummaged through the record of appeal but I am unable to see any proof of service to show that the appellant was put on notice on all the days highlighted above when proceedings were held.

The appellant in this case claimed that he was never served with Writ of summons and Statement of claim which is dated 5th February 2004 but filed on 15th February 2004. But the bailiff’s affidavit of service was sworn to on 6/2/2004 and order of the court for the service was on 6/2/04 i.e. nine days before the date the Writ of Summons and statement of Claim were filed i.e. on 15/2/04 and which said processes were claimed to have been served on purported “Admin Manager”, an officer the appellant claimed not to be in existence in their concern. This brings me to the issue of endorsement of the Writ which was meant to be served outside the jurisdiction of the lower court. The said writ did not on the face of it appear to have been endorsed by a judge.

Again there is no record of leave to serve by substituted means, as no copy of ex parte application for substituted service is contained in both the Record of Appeal and Supplementary Record of Appeal to show that the purported service through courier service i.e. DHL was authorized or granted by the court on an application by the plaintiff/respondent herein. Where a substituted service is effected without leave of the court sought and obtained, such services of no effect, especially where no step was taken by the party served as in this instant case. Therefore, even the issue of absence of shipment document produced by the respondent/plaintiff is of no moment and irrelevant. Now what is the effect of non-service, the writ of summons, statement of claim and other court process on a party to a suit and non-endorsement of a writ of summons?
Section 96 of Sheriffs and Civil Process Act Cap 407 LFN (herein after called “the Act”) reads thus:-
Section 96 (1) and (2) of the Sheriff and Civil Process Act provides as follows:
Section 96 (1) and (2) of the Sheriff and Civil Process Act
“(1) A writ of summons issued out of or requiring the Defendant to appear at any Court of a State or the Capital Territory may be served 011 the Defendant in any other State or the Capital Territory.
(2) Such service may, subject to any rules of Court which may be made under this Act, be effected in the same manner as if the writ was served on the Defendant in the state or the Capital Territory,” Underlining is ours for Emphasis” (emphasis supplied).
By the provisions of Section 97 of the Sheriff and Civil Process Act Cap 407 LFN every writ of summons issued for service outside the jurisdiction of the Court of a State or of the Federal Capital Territory is required to be endorsed and same must be endorsed with a clear notice that it is to be served out of the jurisdiction of the issuing court in a defendant or another State outside jurisdiction. A close look at Exhibit C which was issued by the lower court clearly shows that there was no such endorsement as required by these provisions of the Act.

On the issue of the substituted service allegedly made on the 1st respondent herein by DHL Courier service, I must say that the said purported service was a substituted service is invoked where the defendant is not traced or is evading service. However, the rules of court provide that the court must be satisfied that personnel service cannot be conveniently effected where, it is necessary to adopt the procedure of substituted service the plaintiff makes an application to the court by ex parte motion. The affidavit supporting such motion should state the grounds upon which the application is made or based.

The abortive efforts to personal service must also be recount. As I said earlier, on rummaging through the record of proceeding in this appeal, I have not been able to see where such ex parte application for substituted service by means of courier service was sought and obtained. Therefore, even if the purported substituted service was made, it was defective for want of prior leave to adopt such mode of service from the court. In this instant appeal, even the learned trial judge conceded that there was no service of the originating process, when he stated in one breath in his ruling at page 138 as follows:-
“Since the plaintiff’s counsel had no clear evidence of such service of court processes in the record of the court.”

From the foregoing discourse, I think there is no cogent evidence to establish that the appellant/1st respondent was actually served with the Writ of summons and statement of claim and other court processes. In fact service of writ out of jurisdiction is not a matter of court’s discretion. It is provided in rules of court which must always be obeyed as they are not there for fun. Without service, there would be no valid appearance to be entered by a defendant in a suit even though a defendant can appear in protest or enter conditional appearance. Failure to give notice of proceedings to an opposing party in a case requiring service of process, is a fundamental defect or omission which renders such proceedings a nullity and which also robs the court of jurisdiction to adjudicate on the matter or suit. See Mr. Sylvester Mako vs. Barrister Felicia B. Umoh (2010) LPELR 4463; Owners of MV Arabella vs. Nigeria Agricultural Insurance Corporation (2005) 34 NSLQR (Pt.II) 109.

Now having held that there was no proof of evidence that the appellant was served with the Writ of summons and statement of claim which are the originating process, the lower court therefore lacked jurisdiction to hear and determine the suit filed before it by the plaintiff/1st respondent as it is incompetent due to want of compliance with provisions of Sections 97 and 111 of the Sheriff and Civil Process Act which said none compliance with the said provisions robbed the lower court of jurisdiction to determine the suit. As a corollary, the second issue is hereby resolved in favour of the appellant against the 1st respondent.

Issue No. 1
On this issue, which has to do with the propriety of the courts resolve to refuse to set aside its judgment when approached to do so by the appellant, it is intriguing to note that the trial judge jumped into the arena which as an umpire, should refrain from doing so. For instance, in his ruling, the learned trial judge had this to say at page 216 of the record –
“In line with the above decision, I had to sit with my staff to do the consolidation of the two motions before coming up with the single consolidated motion on notice on 11th February 2006 which was later today, 7th July 2006 made available to counsel for the parties for their comments, if any. After going through the consolidated motion, counsel for all the parties agreed that this was what they really intended to present before this court.”

To my mind, issue of consolidation of a case or motion should always be prompted by one of the parties and must be accepted by both of them and the court shall only consolidate if the conditions for consolidation are met or satisfied. Where a court, suo motu, decides to consolidate suo motu, the parties must agree or consent to such consolidation. Even though the court in the excerpt of its ruling reproduced above stated that the parties learned counsel consented to such consolidation, the alleged consent by the parties learned counsel is nowhere shown or borne out or reflected in the record of proceeding of the lower court or the Supplementary Record.
It is even worst and more disturbing to note the trial judge’s admission that it was he and members of his staff who sat down and did the consolidation. One wonders how and why the learned trial judge should involve his staff in the process of consolidation which is purely the function of the court/judge and not of his/its staff. Since there was apparently no application by any of the parties learned counsel, the exercise of consolidation embarked on by the learned trial judge suo motu, with the aid of his staff and without actually seeking the prior consent of the parties amounted to jumping into the arena by the learned trial judge. Even the exercise of consolidation embarked on by the trial judge is faulty because the first motion filed by the appellant was to set aside the lower court’s judgment while the second motion by 2nd respondent was for stay of execution of the default judgment. It is even more worrisome to note that the first motion of the appellant had already been heard by the court and adjourned for ruling but on the day of ruling the lower court, suo motu, brought the issue of consolidation and took the second motion for stay of execution. This procedure adopted by the trial court is bizarre and unprecedented. By his action the trial judge had taken over the function of the parties learned counsel and had made a case for one of the parties.

Again on going through the ruling of the lower court, I make bold to say that there were some instances where the trial judge made some utterances which were uncalled for and had clearly portrayed and expressed his prejudice, bias or ill-will against instances of appellant’s counsel. I shall highlight below some expressions of sentiments showed by the learned trial judge in his 150 paged ruling now being appealed against. For instance at page 214, the learned trial judge stated thus:-
“This ruling is one of the Most Unnecessary and time wasting Rulings of this Court, undertaken purely on the grounds of Justice, psychology and near divine wisdom of King Solomon of the Holy Scripture re-enacted in this court on Tuesday, the 14th day of February, 2006 by the young counsel, Mr. Festus Onyia, representing the 1st Defendant/Judgment Debtor/Applicant, who in a rare display of wisdom and psychology, was able to bring me back to re-visit his Motion and that of the 2nd Defendant/Judgment Debtor/Applicant after I had firmly told them in unmistakable terms that I was not going to write two Rulings in Post Judgment Interlocutory Applications brought by counsel for the 1st and 2nd Defendants/Judgment Debtors/Applicants who went to sleep while the substantive case being heard in this court.”

Also at page 239 of the Record the court said thus:-
So far, so good for the so-called uncontroverted facts culled by Mr. Obieroma from the records of proceedings of this court when he or his colleague unlawfully searched my court records without my permission and falsified some of the said records. I shall return to address some of these points more adequately in the course of writing this Ruling.”

Similarly at page 234, 235, 238 and 311 the learned trial judge expressed the following sentiments in his ruling which read thus:-
“Instead of complying with the court order served on them with other Court processes, including Hearing Notices, they blatantly refused and went to sleep, thinking and a fortiori boasting that what can the courts in Abuja do to Litigants from all-knowing, all-wise and age-long while Capital of Nigeria, now Centre of Excellence? What a pity? For this is what has become of the bane of counsel from that anxis (sic) whenever they appear in court in the F.C.T., particularly my court in Abuja. They come with all sorts of dubious and sharp practices ostensibly to delay the hearing and determination of cases to the irritation and annoyance of Judicial officers in the F.C.T. but let me tell them that I also practiced law in Lagos, particularly at the Federal High Court, Ikoyi, Lagos and the Court of Appeal, Ikoyi, Lagos to the delight and joy of such high ranking Judicial Officers like Hon. Justice Abubakar B. Wali, retired JSC., Hon. Justice Omorose Ibukun Akpata, another retired JCC, (now of bless memory) Hon. Justice B. O. Babalakin, retired JSC., Hon. Justice M.D. Saleh, former Chief Judge of the High Court of Justice, FCT Abuja, Hon. Justice M.A. Belgore, former Hon. Chief Judge of the Federal High Court, Hon. Justice I.A. Odunowo, Hon. Justice V.O. Eigbedion, etc., all of the Federal High Court, Lagos and other Judicial Divisions of the Court in the country. I was never found wanting by any of these Jurists. Instead, I was greatly loved and admired by them in the way and manner I conducted my cases before them”.

There is no gain saying, that from the above excerpts in the trial court’s ruling clearly shows that beside jumping into the arena, the learned trial judge had shown some sentiments, ill feeling, bias and or prejudice against the appellant’s counsel. As a judge, he is least expected to express such remarks or sentiments because by such utterances, one can simply infer that he was all out to crucify or deal deadly blows on the appellant for whatever reason.
This is highly deplorable and condemnable to say the least.

I will now consider the issue of setting aside the judgment of the lower court and whether the said judgment could be set aside by the lower court or not or whether the appellant had met the conditions precedent before a judgment could set it aside. But before delving into that, I feel it will be apt to determine whether the judgment sought to be set aside by the appellant was a default judgment or judgment on merit. A judgment on the merit is one based on legal rights as mere matters of procedure or jurisdiction. It is therefore a decision that was rendered, the basis of the evidence led by the parties in proof or disproof of the issues in controversy between them. Therefore, judgment based solely on pure procedural error is as a general rule, NOT considered as a judgment on the merits. See Cardoso vs. Daniel & Ors (1986) 2 NWLR (Pt. 20) 1. On the other hand, a default judgment is simply a judgment which was not given on the merits. See Openheini vs. Haneef (1992) 1 AC 482; UTC Nigeria Ltd v. Pamotei (1989) 2 NWLR (Pt. 103) 244 or (1989) NSCC (Pt. 1) 558 at 559.

A judge who gives judgment on merit is functus officio and cannot set it aside.

Considering the crams fancies under which the judgment in issue in this case, I have no hesitation in saying that the judgment is in default judgment, contrary to the view expressed by the learned trial judge. A judge who gives default judgment however has the discretionary power to set it aside even though such discretionary power must not only be exercised judicially and judiciously but also must be guided by the following principles as enunciated in the case of Williams & Ors vs. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145.
The guiding principle to be followed are:-
(1) The reasons for the applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence.
(2) Whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists.
(3) Whether the party in whose favour the judgment subsists would be prejudiced or embarrassed upon on order of rehearing of the suit being made, so as to render such a course inequitable.
(4) Whether the applicants case is manifestly unsupportable, and
(5) Whether the applicants conduct throughout the proceedings, that is for the service of the date of judgment, has been such as to make his application worthy of a sympathetic consideration.
See Idan Ugwe & Ors vs. Nwaji Aba & Ors (1961) 1 All NLR 438; Adebayo Doherty vs. Ade Doherty (1964) NMLR 144 at 145; Momoh vs. Gulf Insurance Corporation (1975) 1 NNLR 184 at 186; Khawani vs. Elias (1960) SC NLR 516; (1915) 5 FSC 224 and Evans vs. Bart Lam (1937) 2 ER 646 at 650.

Now as I have posited above, there is no evidence of service of the writ of summons and statement of Claim and other originating processes. The appellant/applicant has established also that he only came to know about the existence the judgment when the court bailiff was to execute the judgment in the companies premises and on seeing that he quickly took step by instructing their lawyers to investigate and hence he acted promptly by filing the motion to set aside the default judgment. The reason for not appearing to defend the suit which is due to its ignorant about the existence of the suit is to my mind is a very cogent and valid one which if duly considered, the trial judge should have exercised his discretion to set aside the judgment.

The respondent hereto, also show how they will be prejudiced if the default judgment would be set aside or if the suit is ordered to be heard on the merit or that the applicant’s case is manifestly insupportable.
Therefore considering the surrounding circumstances of this case and the unwarranted and unpalatable remarks made by the trial judge as highlighted supra, which said remarks clearly manifested the bias and prejudice, I feel if we refuse to set it aside, the judgment could amount to denial of appellant’s fundamental honoured right of fair hearing. The learned trial judge therefore failed to exercise his discretion judiciously and judicially by refusing to set aside his default judgment. This issue is also resolved in favour of the appellant against the respondent.

With regard to issue No. 3, such issue relates to service of Writ of Summons, Statement of Claim and other originating processes which said proof of service had been dealt with when considering the first issue for determination. I therefore do not deem it necessary to treat it here again. I will just adopt my reasoning on Issue No.1 to apply here.

The fourth and fifth issues for determination deal with award of costs of N75, 000 to the 2nd respondent against the appellant. At page 154 of the Record in justifying the award of a huge sum of N75, 000 had this to say:-
“I award a token cost of N75,000:00 against the 1st Defendant/Judgment Debtor/Applicant and N25,000.00 against the 2nd Defendant/Judgment Debtor/Applicant in favour of the Plaintiff/Judgment Creditor/Respondent and direct that this cost must be paid by the two Defendants/Judgment Debtor/Applicants immediately while the Plaintiff/Judgment Creditor/Respondent should proceed without further ado to enforce the Judgment of this court dated 24th June 2005 against the two Defendants/Judgment Debtors/Applicants.”

To my mind the above remarks made by the learned trial judge further exhibited his bias or ill feeling against the appellant. It clearly shows that the court was all out and hell-bent on seeing that it dealt squarely with the appellant or appellant’s counsel.
Otherwise, why insisting or directing that the heavy cost be awarded against the appellant must be paid by the two defendants immediately. And why awarding N75, 000 against the 1st appellant and only N25,000 against the 2nd defendant/respondent? Why did the court also while ordering the 1st respondent/judgment creditor to proceed without further ado to enforce the judgment of the court dated 24th June 2005 against the two defendants i.e. appellant and 2nd respondent?

Thus, although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather it should merely serve as indemnity or to compensate the wrong party on the out of pocket expenses he/it incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd & Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.

Having said so, I am of the view that huge sum award by the lower court in the name costs against the appellant by the trial judge, is not only unreasonable but it is evidently influenced by the incorrigible prejudice and bias the trial judge apparently and manifestly fielded him against the appellant. It therefore should not be allowed to stand. This issue is also resolved in favour of the appellant too.

On the whole, it is my judgment that this appeal has merit and ought to be and is hereby allowed. The Judgment of the lower court given in default of the appellant’s appearance delivered on 24th June 2005 is hereby set aside. The Ruling of the lower court is also set aside. Similarly, the cost awarded against the appellant is also set aside. I order that Suit No. FCT/HC/CV/222/2003, be remitted to the Hon. Chief Judge of High Court of Federal Capital Territory who should re-assign it to any judge other than Inyang J., for the suit to be heard de novo. Cost of N50, 000:00 is awarded against the 2nd respondent in favour of the appellant only.

JOSEPH TINE TUR, J.C.A.: Having read an advance copy of the lead judgment I am also of the firm view that the most paramount issue for consideration relates to the competency of the trial that led to the judgment in favour of the respondents. I shall add the following comments of mine.

The appellant is prima facie a limited liability company. All processes of the Court to be served on limited liability companies or corporate bodies need authentication under Section 77 of the Companies and Allied Matters Act Cap. C20, Laws of the Federation of Nigeria, 2004, Vol. 3, page C20-56 which provides as follows:
“77. A document or proceeding requiring authentication by a company may be signed by a director, secretary, or other authorized officer of the company, and need not be under its common seal unless otherwise so required in this part of this Act.”

Authentication requires that the Director, Secretary or other authorized officer of the company receiving the document should sign it. In Blacks Law Dictionary, 9th edition, page 151, “authentication” is defined as:
“1. Broadly, the act of proving that something (as a document) is true or genuine, esp. so that it may be admitted as evidence; the condition of being so proved.” To “authenticate” is “1. To prove the genuineness of (a thing)… 2. To render authoritative or authentic, as by attestation or other legal formality.”

In relation to Court process Section 78 of the Act further provides that:
“78. A Court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at, or sending it by post to, the registered office or head office of the company.”
Bearing the above provisions in mind, I shall examine the provisions of Order 11 rule 5(1) and (2) of the High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules, 2004 which governs the pre-conditions for granting leave for substituted service provides as follows:
“5(1) Where it appears to a Court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the Court may order that service be effected ether by –
(a) delivery of the document to some adult inmate at the usual or last known place of abode or business of the person to be served; or
(b) delivery of the document to some person being an agent of the person to be served, or to some other person, on it being prove that there is reasonable probability that the document would in the ordinary course, through that agent or other person, come to the knowledge of the person to be served; or
(c) advertisement in the Federal Gazette, or in some newspaper circulating within the jurisdiction; or
(d) notice put up at the principal Court house of, or a place of public resort in the judicial Division where the respective proceeding is instituted, or at the usual or last known place of abode or of business, of the person to be served; or
(e) email or any other scientific device now known or later developed; and
(f) courier service or any other means convenient to the court,
(2) An application to a Court for an Order of substituted service or other service, shall be supported by an affidavit, setting the grounds on which the application is made.”
The appellant being a limited liability company, Order 11 rule 8 of the Rules (supra) provides as follows:
“8. When a suit is against a corporate body authorized to sue and be sued in its name or in the name of an officer or trustee, the document may be served, subject to the enactment establishing that corporation or company or under which it is registered, as the case may be, by giving the writ or document to any director, secretary, or other principal officer, or by leaving it at the corporate office”.
This is a re-examination that by the Rules Court processes are to be served on any director, secretary, or other principal officer of the company or by leaving it at its corporate office.
It seems to me therefore that the express mention of “A Court process” excludes “any other document” within Section 78 of the Act (supra). See Udoh vs. Orthopaedic Hospitals Management (1993) 7 SCNJ (Pt. 2) 436/444; Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (Pt. 8) 280 and Attorney-General of Bendel State vs. Aideyan (1989) 4 NWLR (Pt. 118) 646.
The object and intention of the legislature is to be garnered from every word and phrase used in Section 77 and 78 of the Companies and Allied Matters Act (supra). See Oyeyemi vs. Commissioner for Local Government, Kwara State (1992) 2 SCNJ (Pt. 2) 266; Arubu vs. NEC (1988) 5 NWLR (pt. 94) 323; Osho vs. Philips (1972) 1 All NLR (Pt. 1) 276 at 285 and Odutola Holdings Ltd. vs. Ladejobi (2006) 12 NWLR (Pt. 994) 321.
I am of the humble opinion that the legislative intention is that a “Court process”, particularly that which initiates the proceedings needs to be authenticated by the officers named in Section 77 of the CAMA to ensure that the proper officer of the company, namely, Directors, Secretaries or other authorized officers were served the proper processes to ensure that the suit comes before the Court duly initiated in accordance with the Act and the Rules so as to confer jurisdiction on the Court. See Madukolu & Ors. v. Nkemdilim (1962) 1 All NLR 587 at 595; Adeigbe & Anor. v. Kusimo & Ors. (1965) NMLR 284/287.

Where a dispute has arisen as to whether service was effected on a party the affidavit should be tendered in Court as proof of service: S.G.B. (Nig.) Ltd. vs. Adewunmi (2003) FWLR (Pt. 158) 1181 at 1192 paragraphs “A”-“D” and Okesuji vs. Lawal (1991) 1 NWLR (Pt. 170) 661 at 678. But where it may be difficult to resolve the conflict in certain occasions, Section 116 of the Evidence Act, 2011 further provides that:
“116. When there are before a Court affidavits that are irreconcilably in conflict on crucial facts, the Court shall for the purpose of resolving the conflict arising from the affidavit evidence, ask the parties to proffer oral evidence as to such facts, and shall hear any such oral evidence of the deponents of the affidavits and such other witnesses as may be called by the parties.”
See Eboh vs. Oki (1974) 1 SC 179 at 189-190; Falobi vs. Falobi (1976) NMLR 169; Falola vs. UBN Plc (2005) 2 SCNJ 209 and Government of Ashanti vs. Korkor 4 WACA 83 at 85.

Indeed, caution demands that where a bailiff claimed or alleged that he served Court processes on a party is absent on the day of hearing, the learned trial Judge should insist in seeing and scrutinizing the affidavit of service together with the notice indicating the day of hearing to ensure that the proper processes were served on the proper parties including the date of hearing before commencing the trial. Where there is no such evidence to embark on a hearing may be a waste of time, energy and cost, the judgment or order/ruling may eventually be declared a nullity and set aside on appeal. Alternatively, the party affected is entitled to have same set aside ex debito justitiae on application. See Lawrence Scott – Emuakpor vs. Ukavbe (1975) 12 SC 41/47. This is because the whole proceedings being a nullity, one cannot foist anything on nothing. However, an order of Court is needed to set aside a nullity proceeding. See Akinbobola vs. Plisson Fisko (1991) 1 NWLR (Pt. 167) 270 at 299; Nwosu vs. Udeaja (1990) 1 SCNJ 152 at 167.

Contrary to the argument of the learned Counsel appearing for the respondents, a Court can set aside its judgment given without jurisdiction: Siliyan & Ors. vs. Mashi & Ors. (1980) 1 PLR 337 at 341; Obimonike vs. Erinosho (1965) 1 All NLR 250; Forfei vs. Seifah (1958) 1 All E.R. 289.

The next question is whether substituted service of Court processes can be effected on a corporation or a limited liability company? The answer lies in the judgment of the Supreme Court in (1) Kalu Mark and (2) Mar-Prik Industries Nig. Ltd. vs. Gabriel Eke (2004) 5 NWLR (Pt. 865) 54 at page 79 paragraph “D” to page 80 paragraph “A”-“E” where Musdapher, JSC (as he then was) held as follows:
“Now, the appellants denied service of the originating process and only became aware of the existence of the suit, when the respondent together with the bailiffs and policemen went to their premises to attach goods in the execution of the judgment. The respondent swore to an affidavit that service was effected and he attached to his counter-affidavit, the affidavit of service sworn to by the bailiff. Now, the affidavit of service sworn to by the bailiff shows that there are two defendants, one an individual, (the 2nd appellant); the first appellant and two, a limited liability company; the bailiff stated that he effected the service by substituted means. He claims “I pasted upon the defendant’s doors…” In my view, this is not good enough. The affidavit of service must be a proper affidavit of service proving due service of the writ. The second appellant as the 2nd defendant is a limited liability company. The mode of service on a limited liability company under the relevant rules of Court is different from service of process on a natural person such as the 1st appellant. The Companies and Allied Matters Act by Section 78 makes a provision as how to serve documents generally or any company registered under it. By this, a Court process is served on a company in the manner provided by the rules of Court. A service on a company, as this provided, must be at the registered office of the company and it is therefore bad and ineffective if it is done at a branch office of the company; see Watkins v. Scottish Imperial Insurance Co. (1889) 23 QBD 285. The procedure is by giving the writ to any director, trustee, secretary or other principal officer at the registered office of the company or by leaving the same at its office. That is why, I am of the view that the affidavit of service by substituted means sworn to by the bailiff is not enough to prove that 2nd appellant was duty served with the originating summons. I cannot see the need or the necessity of making a substituted service on a corporation such as the 2nd appellant. See Ben Thomas Hotels Ltd. vs. Sebi Furnitures Ltd. (1989) 5 NWLR (Pt.123) 523. The need for substituted service arises because personal service cannot be effected and since personal service can only be effected on natural or juristic persons, the procedure for substituted service cannot be made to a corporation like the 2nd appellant herein: Sloman vs. Government of New Zealand (1875) 1 CPD 563; Hillyard vs. Smyth (1889 36 WR 7. So, no matter how you look at it, the 2nd defendant, the 2nd appellant herein, could not be said to have been properly served. The affidavit sworn by the bailiff could not be sufficient proof of service of the process on the 2nd appellant. So in the situation such as this, there is even no need for the trial Judge to call for oral evidence to resolve the contradictory positions taken by the parties, the respondent had offered no credible evidence to show that the 2nd appellant was served with the originating process. Therefore based on the available credible evidence the 2nd appellant had shown that it had not been served with the originating process.”
This is a judgment of the Supreme Court. The Court of Appeal and all other subordinate Courts are bound to apply the decision when the issue of proper service of Court processes on corporations or limited liability companies has arisen in any proceedings. I also cannot fathom a situation where it is impossible to have personally served a director, secretary or other authorized officer (Section 77 of CAMA) or other principal officer (Order 11 rule 8 of the Federal High Court of FCT Rules, 2004) with Court processes before the trial commenced. As there was no credible evidence that the appellant was properly served the Court processes before the learned trial Judge commenced and concluded the proceedings leading to the judgment appealed against, the judgment is a nullity. The learned trial Judge should have ex debito justiae, set it aside.

Accordingly, I also allow this appeal and abide by all the orders made in the lead judgment.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I have had the privilege of reading the draft of the judgment just delivered by my learned brother, Amiru Sanusi, JCA, OFR. I am in agreement with the conclusion that the appeal be allowed with the reasons advanced in the judgment. I also abide by the consequential orders contained therein.

Appearances

Uzoma Azikiwe with Ohireime EboreimeFor Appellant

AND

Akin Adewale for the 1st Respondent

2nd Respondent absentFor Respondent