FIRST INLAND BANK PLC V. GILBERT FIDDI (2013)

FIRST INLAND BANK PLC V. GILBERT FIDDI

(2013)LCN/6160(CA)

RATIO

SERVICE: IMPORTANCE

On the issue of service, it is to be known, that service of process is fundamental, as it enables the court to have jurisdiction to adjudicate on the matter, other things being equal. So a court has no jurisdiction to exercise upon a party who has not been served and an order cannot validly be made against him. If made, he can apply to set it aside as a condition precedent is lacking, unless he has submitted to the jurisdiction of the court by appearance. Thus, if a defendant is not served, he can waive the issue of service.PER ABUBAKAR DATTI YAHAYA, J.C.A.

SERVICE: WHETHER FAILURE TO SERVE ACCORDING TO THE RULES GOVERNING SERVICE IS A MERE IRREGULARITY OR ILLEGALITY

If a person is not served in accordance with the rules governing such service, it is a mere irregularity not illegality which can be waived.PER ABUBAKAR DATTI YAHAYA, J.C.A.

WAIVER: DEFINITION

Waiver in law, means a voluntary surrender of a known right or privilege which otherwise, could be insisted upon. A party waives such right if he takes further steps and allows the proceedings to go on as if the right or privilege never existed – ARIORI VS. ELEMO (1983) 1 SCNLR 1. In N.B.C. VS. UBANI (Supra) this Court referred to JOB CHARLES LTD VS. OKONKWO (2002) FWLR (Pt. 117) 1067; AMES ELECTRICAL LTD VS. FAAN (2002) FWLR (Pt. 116) 827 and ODUA VS. TALABI (Supra) and held that even where there is improper service, a defendant who takes further steps and participated in the proceedings, cannot complain of the improper service for he would be deemed to have waived his right. Once he is in court or is represented in court, the court will deem that he had been served and is aware – S.G.N VS. ADEWUMI (2009) 10 NWLR (Pt. 829) 526.PER ABUBAKAR DATTI YAHAYA, J.C.A.

SERVICE: WHEN A DEFENDANT CLAIMS HE WAS NOT SERVED PROPERLY, THE MUST RAISE THE ISSUE TIMEOUSLY

Again, a defendant who is of the view that he has not been served properly, has a duty to raise the issue timeously, such as by filing a conditional appearance. That will give an indication to the court and the other party who served, his dissatisfaction and objection to the process. If he fails to act timeously, he will be estopped from raising it later, such as at an appeal stage, especially when he was represented by counsel at the trial stage – DICKSON VS. OKOI (2003) 10 NWLR (Pt. 846) 397.PER ABUBAKAR DATTI YAHAYA, J.C.A.

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the trial High Court of the Federal Capital Territory, Abuja delivered on the 29th of November, 2007. The plaintiff, who is the respondent in this appeal, took out a writ on the Undefended List, claiming the sum of N21,625,000.00 removed by the defendant/appellant, from his account without his authorization, and 10% interest on the judgment sum until liquidation. The Suit was fixed for hearing on the 29/11/07.

On the hearing date, the defendant/appellant had not filed a Notice of Intention to defend. Its counsel, Mr. Mathew Echo appeared in court, apologized and prayed for an adjournment to regularize the position, as he was briefed only two days earlier. Counsel for the plaintiff/respondent objected to the application for adjournment as the defendant had been served with the processes ten days earlier and had not responded. The trial court was satisfied with the submission of the counsel for the plaintiff/respondent and it therefore entered judgment in the claimed sum. Hence this appeal.

The appellant filed two grounds of appeal, one original and one additional, with the leave of court. The two grounds of appeal without their particulars, are –

1. The learned trial judge of the court below erred in law and thereby came to a wrong decision when he entered judgment for the Respondent under the Undefended List inspite of the application for adjournment by the Appellant’s counsel, to enable the appellant file a defence on the merit to the Respondent Suit.

2. The learned trial judge of the court below erred in law in hearing and determining the suit as he lacked the requisite jurisdiction in law to hear and entertain same.

From the two grounds of appeal, learned counsel for the appellant who settled the brief filed on the 7/2/11, Mr. Ademola Adeniji, identified two issues for determination –

1. Whether the court below was not in error, which has occasioned miscarriage of justice when it refused the appellant’s passionate plea for a short adjournment to enable the Appellant file its defence to the Respondent Suit brought under the Undefended List, given the reason supplied/furnished to it by the Appellant’s counsel.

2. Whether the court below had the jurisdiction to entertain the Suit in the first place.

The respondent’s brief of argument was settled by his counsel Mr. Larry, S. and was filed on the 17/2/11. He also identified two Issues to be –

A. Whether in the light of the law relating to undefended list proceedings, the trial court properly exercised discretion when it refused the application for adjournment and proceeded to hearing and entered judgment in favour of the plaintiff respondent.

B. Whether in the light of the circumstances of this case the trial court was seized with the requisite jurisdiction to entertain this matter in the manner it did.

Since the issues identified by both parties are very similar, I shall utilize the issues raised by the appellant in deciding this appeal.

ISSUE NO. 1

Whether the court below was not in error, which has occasioned miscarriage of justice when it refused the Appellant’s passionate plea for a short adjournment to enable the appellant file its defence to the Respondent Suit brought under the Undefended List, given the reason supplied/furnished to it by the Appellant’s counsel.

Learned counsel for the appellant submitted that although the appellant was served with the Writ of Summons on the Undefended List on the 19/11/07, for hearing on the 29/11/07, the appellant could only brief counsel on the 27/11/07, two days before the hearing date. Counsel for the appellant on that 29/11/07, appeared in court, explained the inability to file the Notice of Intention to defend or any process timeously, and prayed for adjournment to regularize the position. The court refused and went ahead to give judgment. Counsel argued, by referring to AILO NIGERIA LTD VS. ANKPA COOPERATIVE CREDIT & MARKET UNION LTD (2004) ALL FWLR (Pt. 210) 13336 at 1350 that the trial court should have exercised its discretion judicially and judiciously in favour of the appellant since it showed interest in defending the Suit. The refusal to grant the adjournment had shut the doors of justice against the appellant who was not heard – IBETO METRO TRADE LTD VS. GULF BANK OF NIGERIA PLC (2008) ALL FWLR (Pt. 402) 1092 at 1107. Counsel submitted that miscarriage of justice had been occasioned against the appellant. He urged us to resolve the Issue in favour of the appellant.

In responding to the position taken by the appellant, learned counsel for the respondent submitted that the grant or refusal of an application for adjournment is a matter of discretion to be exercised judicially and judiciously “based on the given set of facts and attendant circumstances in accordance with justice.” He placed reliance on UNIVERSITY OF LAGOS VS. OLANIYAN (NO.1) (1985) 1 NWLR (Pt. 1) 156; SIRPI ALUSTEEL CONST (NIG) LTD VS. SNIG (NIG) LTD (2000) 2 NWLR (Pt. 644) 229; DOKUBO ASARI VS. F.R.N (2007) 12 NWLR (Pt. 1048) 350 and ABUBAKAR VS. CHUKS (2007) 12 NWLR (Pt.1066).

Learned counsel for the respondent also argued that the exercise of discretion of a judge, is in accordance with the ordinary principles laid down by law, where the situation is governed by the rule of law. It is when there is no rule of law, that the exercise of discretion of a judge would depend upon what he thinks is fair and just in particular cases. He referred to ABUBAKAR VS. CHUKS (Supra)at 422 and Order 21 rule 4 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004, to submit that the court had been directed to the path which it should take once there is no Notice of Intention to defend filed by a defendant. He cited many other authorities which include FIRST BANK (NIG) LTD VS. KALADU (1993) 9 NWLR (Pt. 315) 44 at 57; BEN THOMAS HOTELS LTD VS. SEBI FURNITURE LTD (1989) 5 NWLR (Pt. 123) 523; ATAGUBA VS. GURA (NIG) LTD (2005) 8 NWLR (Pt. 927) 429′ G.M.O.N & S. CO. LTD VS. AKPUTA (2010) 9 NWLR (Pt. 1220) 443 and GIDADO VS. DAKU (2006) ALL FWLR (Pt. 292) 25.

Learned counsel argued that since the appellant has not been able to show that the trial court had, in the exercise of discretion, proceeded on an entirely wrong principle or failed to take all the circumstances of the case into consideration, it cannot succeed in upsetting the position – OKEKE VS. ORUH (1999) 6 NWLR (Pt. 606) 175.

It seems to me, that the reference by counsel to the respondent to Order 21 rule 4 of the High Court of the Federal Capital Territory Abuja (Civil Procedure Rules) 2004 and the case of FIRST BANK VS. KALADU (Supra) is to show that the trial judge had no discretion to exercise in the matter, but was to enter judgment, since the appellant had failed to file a Notice of Intention to defend and an affidavit in support. If this is his submission, then it is not supported because Order 21 rule 4 of the said Rules of the High Court of the Federal Capital Territory, does not mean that once a Notice of Intention to defend, supported by an affidavit is filed, then the defendant must automatically be allowed to defend the action by transferring it to the general cause list. Regarding FIRST BANK VS. KALADU (Supra) the excerpt quoted by learned counsel states –

“The respondents did not file any notice of intention to defend the action. Since they did not dispute the claim, they were under no obligation to do anything. So that on the date fixed for hearing judgment would be entered for plaintiff, the respondents’ presence in court notwithstanding……they were therefore not entitled to be heard even if they were in court….”

Yes, the above shows that a defendant who fails to file a notice of intention to defend the action, together with an affidavit in support, cannot be heard on the hearing date even if he is in court. But it did not state that an adjournment cannot be given to the defendant, to enable him file the Notice of Intention to defend in particular circumstances. This shows that exercise of discretion will come to play in that situation.

But if the position of the counsel for the respondent is that the trial judge has a discretion in the matter, then I will proceed.

It is settled, that the granting of an adjournment is a discretionary power which a court pocesses in order to do justice to the parties before it. It is also settled, that discretionary powers shall be exercised judicially and judiciously according to known principles of law, and not arbitrarily or capriciously.

When a court properly exercises its discretionary power, appellate courts do not normally make a habit of interfering, unless the correct principles are not employed. See OLUWASAN VS. OGUDEPO (1996) 2 NWLR (Pt. 433) 628.

How a court exercises its discretion in granting an adjournment is dependent upon the given circumstances. But the court will have to balance the competing need to dispose of a case timeously and the need to hear the applicant for the adjournment. What should be of utmost importance in the mind of a judicial officer, is the need to do substantial justice. If the court is of the view that the application of an adjournment is only a ploy to delay matters unnecessarily, or deny a party what he ought to have, without the possibility of any positive results, then it ought to refuse the application for adjournment. Where however, the application for adjournment is for the purpose of hearing the other side before judgment is delivered, then it must act according to the constitutional provision [Section 36(1) of the 1999 Constitutionl of fair hearing, and should grant the adjournment so that both sides can be heard before a decision is rendered.

By Order 21 rule 3(1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules) 2004, a defendant is required to deliver to the Registrar of court, a Notice of Intention to defend, together with an affidavit in support, if he wishes, to defend, within 5 days to the day fixed for hearing. By Order 21 rule 4, such a defendant may have judgment entered against him where he fails to file the Notice of Intention to defend together with an affidavit in support, or the affidavit does not disclose a defence on the merit.

In the instant appeal, the appellant failed to file the Notice of Intention to defend but he appeared through his counsel on the hearing date of 29/11/07 and prayed for adjournment for the stated reasons. The court refused to grant the adjournment and entered judgment against it.

In ENYE VS. OGBU (2003) 14 NWLR (Pt. 828) 403 at 428, the court referred to MUOBIKE VS. NWIGWE (2000) 1 NWLR (Pt. 642) 620 and held that trial courts should not be in a hurry to enter judgment on Undefended List. The claim must be examined side by side with the rules and the court has a duty to consider whether the action is one that should be placed on the Undefended List. This duty remains on the shoulders of the trial court, even if the defendant fails to file a Notice of Intention to defend. The failure to so consider and proceeding, “may be a breach of the fundamental right of the defendant as calling upon a defendant to defend a shadowy action is a denial of the right of fair hearing.”

Whenever a party’s right is called to question, the court should afford him the opportunity of being heard, before any decision, especially to his detriment, can be taken. Here, the case was coming up for the first time for hearing before the trial court on the 29/11/07, on the Undefended List. The trial court refused to grant an adjournment to enable the appellant file a Notice of Intention to defend, when its counsel had only been briefed two days earlier, was in court and had clearly shown to the court, the intention to defend the suit. It proceeded to give judgment without showing on the record, that it had considered whether the action was one that was properly filed on the Undefended List and without affording the defendant the opportunity to be heard and to defend the action. In the circumstances of this case, the trial court was too hasty and had failed to take into consideration all the correct principles, and it is manifest that the refusal of the application for adjournment was harsh and had caused injustice to the appellant since judgment was given against him without him being heard in the circumstances – OKEKE VS. ORU (1999) 6 NWLR (Pt. 606) 175. It was therefore a wrong exercise of discretion which occasioned miscarriage of justice that warrants an interferance by this court. Issue No. 1 is resolved against the respondent and in favour of the appellant.

ISSUE NO 2

Whether the court below had the jurisdiction to entertain the Suit in the first place.

Learned counsel for the appellant referred to the cases of MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR (Pt.4) 587 and ATTORNEY-GENERAL, KANO STATE VS. ATTORNEY-GENERAL OF THE FEDERATION (2007) ALL FWLR (Pt. 364) 238 at 251 – 252 on the competence of a court to exercise jurisdiction over a matter, and that once a court lacks the competence, then it also lacks the jurisdiction to entertain the matter – PWOL VS. JANG (1992) 7 NWLR (Pt. 251) 120. He submitted that the lower court lacked the jurisdiction to entertain the Suit because of two features – (a) territorial issue and (b) service issue.

On territorial issue, counsel submitted that the contract between the appellant and the respondent of banker/customer, was commenced, continued and breached in Lagos. He then referred to Section 272(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria, the cases of KRAUS THOMPSONS ORGANIZATION LTD VS. UNIVERSITY OF CALABAR (2004) ALL FWLR (Pt. 209) 1148 at 1174 – 1175 and LABARAN VS. KALSHINGI (2006) ALL FWLR (Pt. 292) 65 at 74 to submit that it is the High Court of Lagos State that had the jurisdiction to entertain the claim, not the High Court of the Federal Capital Territory Abuja. The exercise of jurisdiction over the claim by the High Court of the FCT Abuja is affected by a fundamental vice, he argued – ABIA CORPORATION VS. QUORUM CONSORTIUM LTD (2003) FWLR (Pt. 151) 1975 at 1991.

Counsel also argued that the provision of Order 9 Rule 3 of the High Court of the FCT Rules, 2004, does not apply since there is a competent High Court in Lagos.

On service issue, learned counsel submitted that this is also an important feature, because where there is no service or there is no proper service of process such as a Writ, the court would lack the jurisdiction to entertain the Suit – MADUKOLU VS. NKEMDILIM (Supra); INTERGRATED BUILDERS VS. DOMZAQ VENTURES (NIG) LTD (2005) ALL FWLR (Pt. 263) 780 and UNION BEVERAGES LTD VS. ADAMITE CO. LTD (1990) 7 NWLR (Pt. 162) 348. He submitted that the Writ served on the appellant on the 19/11/07 was served on one Azubike Ikenna, an ‘officer’ (page 21 of the record), and that such service is improper as it violates Section 78 of the Companies and Allied Matters Act 2004 and Order 11 Rule 8 of the High Court of the FCT (Civil Procedure) Rules, 2004 – ALHAJI SHESHU BELLO VS. NATIONAL BANK OF NIGERIA LTD (1992) 6 NWLR (Pt. 246) 206; NIGERIA POLICE FORCE VS. ONU (2008) ALL FWLR (Pt. 406) 1920 at 1935 – 1936 and OYUN LOCAL GOVERNMENT VS. FIRST AMALGAMATED BUILDING SOCIETY LTD (2006) ALL FWLR (Pt. 334) 1983. Counsel also argued that where there is no jurisdiction, then silence, acquiescence or active participation of the parties will not cure the fundamental flaw – IJEBU-ODE LOCAL GOVERNMENT VS. BALOGUN CO. LTD (1991) 1 SCNJ 1 AT 13. He urged us to resolve the issue in favour of the appellant.

Learned counsel for the respondent disputed the submissions of counsel for the appellant.

On territorial jurisdiction, counsel submitted that the dispute between parties arose over a simple contract and that the defendant, now appellant has branches in Abuja, its Managing Director’s office is in Abuja and that these show that it resides or carries on business in Abuja. This gives the High Court of the FCT jurisdiction to entertain the Suit he argued – YUSUF VS. COOPERATIVE BANK LTD (1994) 7 NWLR (Pt. 359) 676; BANK OF THE NORTH LTD VS. YAU (2001) 10 NWLR (Pt. 721) 408; UNITY BANK PLC VS. NWADIKE (2009) 4 NWLR (Pt. 1131) 352; I.K MARTINS (NIG) LTD VS. UPL (1992) 1 NWLR (Pt. 217) 322 and FBN PLC VS. ABRAHAM (2008) 18 NWLR (Pt. 1118) 172, Section 257 of the 1999 Constitution and Order 9 rules 3 and 4 of the High Court of the FCT (Civil Procedure) Rules 2004.

On service, counsel referred to Section 78 of CAMA and Order 11 rule 8 of the High Court FCT Civil Procedure Rules and submitted that serving the ‘officer’ with the Writ and getting an acknowledgment from such an officer who works at the Managing Director’s office of the appellant, amounts to leaving the process at the office of the appellant – FBN PLC VS. ONUKWUGHA (2005) 16 NWLR (Pt. 950) 120; S.B.N. VS. KYENTU (1998) 2 NWLR (Pt. 536) 41 and RANCO TRADING CO. LTD VS. U.B.N. LTD (1998) 4 NWLR (Pt.547) 566.

Counsel also argued that even if there was improper service, the right for a proper service had been waived by attending court and taking steps – ODUA INVESTMENT LTD VS. TALABI (1991) 1 NWLR (Pt. 170) 761 and NBC PLC VS. UBANI (2009) 3 NWLR (Pt. 1129) 512.

Now, counsel for the respondent had challenged particulars 4 and 5 of the particulars to the additional ground of appeal, for being incongruous to the main complain and that the additional ground of appeal did not cover any issue of service.

I agree with the counsel for the appellant in the Reply brief, that these particulars are not incongruous but have highlighted the nature of the error complained of and certainly can accommodate the issue of the territorial jurisdiction. The objections by the counsel for the respondent are therefore misconceived and are struck out.

On territorial jurisdiction, it is clear to me that Order 9 rule 3 of the FCT High Court Civil Procedure Rules 2004 is apt. It provides –

“All Suits for specific performance, or breach of contract, shall, where the contract ought to have been performed, or where the defendant resides or carries on business in the Federal Capital Territory, be commenced and determined in the High Court of the Federal Capital Territory, Abuja. (Underlines mine).

The Writ of Summons at pages 1 and 2 of the record, shows that it was addressed to the defendant/appellant, at Zone 4, off IBB Way, Wuse, Abuja. Paragraph 2 of the Affidavit in support of the Undefended Claim reads –

“That the defendant is a bank which has several branches in Abuja wherein it does business and while managing director/CEO’s office is amongst others, at off IBB Way Zone 4 Wuse Abuja……”

Since it is a fact that the appellant has several branches in Abuja, it means it does business in Abuja, and since its Chief Executive Officer has his office at Abuja, it means that the appellant does not only do business in Abuja, it also resides in Abuja. The High Court of the FCT Abuja therefore definitely has the territorial jurisdiction to entertain the Suit. To argue, as the appellant did, that unless there is no competent court where the contract ought to have been performed, a High Court within the jurisdiction of the residence of the defendant or where he carries out business, cannot have jurisdiction, is untenable. To give Order 9 rule 3 of the FCT High Court Civil Procedure Rules 2004 this interpretation, is to import into it words that have not been provided and which would completely defeat the purpose of the Rules as intended by the framers. This cannot be allowed.

If a person is not served in accordance with the rules governing such service, it is a mere irregularity not illegality which can be waived.

In the instant appeal, the appellant briefed a counsel who appeared in court but did not protest the issue of improper service. He instead asked for adjournment to enable him regularize his position. Even when adjournment was refused, and judgment entered, he later filed an application to set aside the judgment, not on improper service, but on other grounds. He only raised the issue at this appellant stage. It is too late for him to do so, as he had clearly waived his right.

There is still the question. Was the service infact improper or irregular?

The process was left with an ‘officer’ at the office of the Managing Director of the appellant. By virtue of section 78 CAMA, which provides –

“A court process shall be served in a company in the manner provided by the rules of Court……”

And Order 11 Rule 8 of the FCT High Rules, which provides –

“When a Suit is against a corporate body authorized to sue and be sued in its name….the document may be served….by giving the writ or document to any director, secretary, or other principal officer, or by leaving it at the corporate office.”

The appellant had been properly served since the writ was given to an officer in the office of the Managing Director, especially as this officer must have given the process to the appellant company which briefed a counsel. See DAUPHIM NIG LTD VS. MANUFACTURES ASSOCIATION OF NIGERIA (2001) FWLR (Pt. 47) 1127 at 1136. This Issue is resolved against the appellant and in favour of the respondent.

In view of the success of Issue No. 1, this appeal has merit and it succeeds. The judgment of the trial High Court of the FCT Abuja, delivered on the 29th of November 2007 in Suit No. FCT/HC/CV/308/07, is hereby set aside. I order the case to be transmitted back to the Chief Judge, Federal Capital Territory High Court, Abuja, for hearing before another judge, with a directive herein, that the appellant be given the opportunity to file a Notice of Intention to defend, together with an affidavit in support of the Notice, if it so wishes and the Suit shall be heard expeditiously. No order as to costs.

MOORE A. A. ADUMEIN, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, Yahaya, JCA. His Lordship has in a very comprehensive manner adequately addressed and rightly resolved the issues in this appeal. I have nothing to add to His Lordship’s reasoning and conclusion that this appeal has merit and it ought to be allowed.

I allow the appeal and abide by the orders in the lead judgment.

There is no order for costs.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother, Yahaya, JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat. I adopt the judgment and consequential orders as mine.

Appearances

Ademola Adeniji (with Segun Owa, Kayode Atanda)For Appellant

AND

S. Larry (SAN) (with T. Tabaj (Miss.), L. Neple (Miss.), E. J. Okolie Esq and C. Idenyi Esq.)For Respondent