HALID PHARMACEUTICALS LIMITED v. OBIH SOLOMON
(2013)LCN/6237(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of May, 2013
CA/K/231/2007
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
HALID PHARMACEUTICALS LIMITED Appellant(s)
AND
OBIH SOLOMON Respondent(s)
RATIO
THE FUNDAMENTAL RULE OF SERVICE OF COURT PROCESS
Service of process is vitae under due process of law. See Guda v. Kitta (1999) 12 NWLR (pt. 629) page 21.
The service of the writ of summons on a Defendant is a condition precedent for the exercise of jurisdiction by the Court over the subject matter of the action and over the Defendant. In all cases where services of process is to be effected, it must be by personal service, but where personal service can not be conveniently effected, then the Court may order for substituted service. See
Kida v. Ogunmole (2006) 13 NWLR (pt. 997) page 377.
Teno Eng. Ltd. v. Adisa (2005) 10 NWLR (pt. 933) page 346
Ononye v. Chukwuma (2005) 17 NWLR (pt. 953) page 90.
Idiato v. Eyako (2005) 11 NWLR (pt. 936) page 349.
It follows therefore that any judgment base on a process which is not served is liable to be set aside. See Hyppohte v. Egharevba (1998) 11 NWLR (pt. 575) page 598. PER ABOKI, J.C.A.
WHETHER OR NOT FAILURE TO GIVE NOTICE OF PROCEEDINGS TO AN OPPOSING PARTY CAN RENDER A PROCEEDING VOID
It has been held in a plethora of decided authorities that failure to give notice of proceedings to an opposing party in a case where service of Court process is required is a fundamental omission capable of rendering such proceedings void because the Court will have no jurisdiction to entertain such a matter. See
Mark v. Eke (2004) 5 NWLR (pt. 865) page 54;
Wema Bank Nig. Ltd v. Odulaja (2003) 3 SC 83;
Tubonemi v. Dikibo (2006) 5 NWLR (pt 974) page 565;
Onadeko v. U.B.A. Plc (2005) 4 NWLR (pt. 916) page 440;
Ayogu v. Nnamani (2004) 15 NWLR (pt. 895) page 134.
Order 12 Rule 5 (a) of the High Court (Civil Procedure) Rules 1987 of Kaduna State provides:
“5. Where it appears to the Court (either after or without an attempt at personal service) that for any reason personal service can not be conveniently effected, the Court may other that service be effected either
(a). by delivering 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)…
(c)…
(d). by notice put up at the principal Court – house of, or some other place of public resort in, the Judicial Division wherein the proceedings in respect of which the service is made is instituted, or at the usual or last known Place of abode, or business of Person to be served”.
It is clear from the wordings of order 12 Rule 5(a) and (d) of the High Court (civil procedure) rules 1987 of Kaduna State reproduced above that an applicant who applies for the Court process to be served by substituted means has a choice as to where to effect service on the person to be served, the applicant may decide either to serve the process on the person to be served at with processes either at
(a). the usual or last known place of abode
OR
(b). the usual or last known place of business. PER ABOKI, J.C.A.
THE PROPER MANNER OF IMPEACHING A JUDGEMENT ALLEGED TO HAVE BEEN OBTAINED BY FRAUD
The proper manner of impeaching a judgment alleged to have been obtained by fraud is by filing a fresh action. The action is regarded as a new action because it requires fresh facts to be presented, and not the old material. See
N. S. Eng. Co. Ltd v. Ezendukes (2002) 1 NWLR (pt 748) page 469;
Anatogu v. Iweka (1995) 8 NWLR (pt. 415) page 547.
In the case of Chief Philip Anatogu & 2 ors v. H. R. H. Igwe Iweka II and 4 ors (1995) 9 SCNJ 34 the Supreme Court held:
“If a judgment or order has been obtained by fraud a fresh action will lie to impeach the judgment.”
Also in the case of Vulcan gases Ltd v. Gesellschaft Fur Ind. Gaverwertung A. G. (G. I. V.) (2001) FWLR (pt. 53) 1 at 60 the Supreme Court obtain by fraud thus:
“Where a party seek to challenge on grounds that it obtained by fraud or mistake, a judgment or order that finally disposes of the issue raised between the parties, the only ways of doing it that are open to him are by an appeal from the judgment or orders to a higher Court or by bringing a fresh action to set it aside”PER ABOKI, J.C.A.
WHETHER OR NOT A JUDGMENT DELIVERED UNDER THE UNDEFENDED LIST PROCEDURE IS A JUDGMENT ON THE MERIT
It is trite that a judgment delivered under the undefended list procedure is a judgment on the merit. It can only be set aside on appeal. However the trial Court has inherent powers to set it aside where there is an allegation that the judgment was obtained by fraud. This is because fraud if established would nullify the judgment. See Remawa v. NACBC F. C. Ltd (2007) 2 NWLR (pt. 1017) page 155.
Duke v. Akpabiyo Local Government (2005) 19 NWLR (pt. 959) page 130.
Mark v. Eke (2004) 5 NWLR (pt. 865) page 54;
G. Cappa Plc v. Abinire and Sons (Nig) Ltd (2002) FWLR (pt. 95) page 349 at 364.
First Bank (Nig.) Ltd v. Khalid (1993) 9 NWLR (pt. 315) page 44 at 55;
Agueze v. P. A. B Ltd (1992) 4 NWLR (pt. 233) page 57 at 89;
U. T. C (Nig.) Ltd v. Pamotaei (1989) 2 NWLR (pt. 103) page 244 at 298
Bank of the North Ltd v. Inter Bank S. A. (1969) All NLR 8.
U. A. C. (Technical) Ltd v. Anglo Canadian Cement Ltd (1964) NMLR 369. PER ABOKI, J.C.A.
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Kaduna State High Court of Justice delivered on 15/5/2007 by Esther Y Inuwa J, setting aside its judgment of 12/10/2006 and an order that the Appellant pay the Respondent the sum of N1, 079,785.00 (One Million seventy Nine Thousand, Seven Hundred and Eighty Five Naira only).
The facts leading to this appeal are briefly stated as follows. The Plaintiff (herein referred to as the Appellant) sued the Defendant (herein referred to Respondent) under the undefended list procedure claiming the sum of N3, 417,561.25 (Three Million Four Hundred and Seventeen Thousand, Five Hundred and sixty one naira Twenty Five Kobo only) being the value of drugs which the Respondent collected from the Appellant while he was under the employment of the Appellant as its sales representative for distribution to its customers but which the Respondent sold and converted the said sum to his own use and has failed, refused and/or neglected to pay despite repeated demands.
The Appellant also claimed 10% Court interest rate from the date of judgment until the entire debt is fully liquidated.
The Respondent was said to have been served with the Court Processes by substituted means in accordance with the exparte order of the trial Court made on the 14th day of September, 2006 and that the Court bailiff dully swore to an affidavit of service to that effect.
After judgment was entered in favour of the Appellant, the Respondent properties were attached and sold by the Bailiffs of the High Court by public auction.
The sum of N112, 000.00 (One Hundred and Twelve Thousand Naira only) was handed over to the Appellant through its solicitors as the proceeds of the auction sale in partial satisfaction of judgment of the trial Court.
Pursuant to the motion on notice dated 4th April, 2007 filed by Respondent praying the Court for the following reliefs:
“1. LEAVE OF THIS COURT for the Applicant to apply to set aside both the Order Court processes in this suit by substituted means by pasting same at AV7 Benin Street Kaduna and the subsequent Judgment of this Court entered on 12th October, 2006.
2. AN ORDER of this Court setting aside both the Order of this Court which granted the 1st Respondent leave to served the applicant all Court processes in his suit by substituted means by pasting same at AV.7 Benin Street Kaduna and the subsequent judgment of this Court entered on 12th October, 2006.
3. AN ORDER setting aside both the Execution of the said judgment and the subsequent sale of all the attached properties of the Applicant which said execution and sale were carried out in 23rd November, 2006 and 13th December 2006 respectively.
4. AND ORDER directing the 1st and 2nd Respondent to return back to the Applicant all Applicant goods attached and sold in execution of the aid judgment
OR
Alternatively AN ORDER directing the 1st Respondent to pay without further delay a total sum of N1,079,785.00 (One Million, Seventy Nine Thousand Seven Hundred and Eighty Five Naira Only) which represent the market value for whole properties of the Applicant sold in execution of the judgment.
AND for such further or other orders(s) as this Honourable court may deem fit to make in the circumstances of this matter.
GROUNDS OF APPLICATION
1. There was no proper service on the applicant because of the misrepresentation by the 1st Respondent and her counsel which said representation amounts to fraud.
PARTICULARS OF FRAUD
(a). That the 1st Respondent and her counsel falsely deceived this Court to the fact that the Applicant could not be located within Kaduna, the jurisdiction of this Court.
(b). That the 1st Respondent and her counsel falsely deceive this Court to the fact that the Applicant last known address was the Applicant former place of employment”.
The lower Court set aside its judgment delivered on 12th October 2006 and ordered the Appellant to pay the Respondent the sum of N1,079,785.00 (One Million Seventy Nine Thousand, Seven Hundred and Eighty Five Naira Only) which represented the market value of the whole properties of the Respondent sold in execution of the Court’s judgment.
It is against this order of the lower Court that the Appellant appealed to this Court. The Notice of Appeal dated 24th day of May, 2007 consist of four grounds.
Brief of arguments were filed and exchange by the parties in accordance with the Rules of this Court.
The Appellant’s brief of argument was dated and filed the 20th June, 2007.
In the said Appellant’s brief of argument three issues were distilled from the four grounds of Appeal for the determination in this Appeal. The issues are adumbrated as follows:-
“(i) whether there was evidence of source or proof of service of the write of summons on the Defendant/Respondent on the face of the records of the trial Court before the judgment of 12th October, 2006.
(ii) whether a court of trial can set aside its own judgment such as a judgment under the undefended list.
(iii) whether a party can successfully challenge a judgment which was obtained under the undefended list on the ground that it was obtained by fraud and/or mistake in the same suit”.
The Respondent’s brief of argument was dated 25th July 2007 and filed on 3rd August, 2007.
In the said brief of argument, the Respondent distilled three issues for the determination of this appeal and they are hereby reproduced thus:-
“1. Whether the Respondent was served after the deceit of the lower Court by the Appellant to the effect that the last known address and place of business of the Respondent was No. 7 Benin Street, Kaduna.
2. Whether a trial Court can set aside its own judgment on the ground of nullity.
3. Whether allegation of misrepresentation and deceit against the Appellant on the misdirection of the lower Court as to the last known address of the Respondent amount to allegation of fraud that need a fresh action to establish”.
The issues as formulated by the respective parties to this appeal are very similar except for the mode they were couched by the parties.
Both issues (ii) of the Appellant and issue 2.2 of the Respondent are identical, encompassing.
Issue (1) & (iii) as formulated by the Appellant can conveniently be accommodated in its issue (iii) while the Respondents issue 2.1 and 2.3 can be collapsed into his issue 2.2.
It follows therefore that, the issue (ii) of the Appellant and issue 2.2 of the Respondent are capable of disposing of this appeal. I prefer the issue (ii) as couched by the Appellant because it is more elegant and I adopt same as the only issue for the determination of this Appeal.
The issue is reproduced for the purposes of clarity thus:
“Whether a Court of trial can set aside its own judgment such as a judgment under the undefended list”.
Learned counsel to the Appellant submitted that the record of proceedings of a Court of law is sacrosanct. He argued that there is no dispute that service on the Respondent was in accordance with the order of the trial Court pursuant to the provision of Order 12 rule 5 (d) of the High Court (Civil Procedure) Rules 1987 of Kaduna State. He maintained that there is no dispute that No. Av7 Benin Street, Kaduna is the Respondent’s last place of business.
Learned counsel submitted that the mode of service of the Courts processes on the Respondent is recognized by law and in the instant case enjoys statutory flavour under Order 12 rule 5 (d) of the High Court (Civil Procedure) Rule 1987 of Kaduna State. He insisted that the contention of the Respondent as to services does not hold.
Learned counsel urged this Court to hold that by the record of the trial Court there was proof of service on the Respondent and an affidavit of service duly sworn to by the bailiff of Court to that effect.
It has been argued on behalf of the Appellant that a judgment obtained under the undefended list procedure is a judgment on the merits and cannot be set aside except on appeal.
The court was referred to Civil Procedure in Nigeria by Fidelis Nwadialo. SAN at page 441 Law and Procedure in suits on the undefended list by Hon. Justice C. C. Nweze and page 76 – 80.
The Revised Edition of Practice and procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria by Dr. T. Akinola A. Aguda.
The Court was also referred to the cases of
G. Cappa Plc v. Abinine and Sons (Nig) Ltd (2002) FWLR (pt. 95) page 349 at page 364.
First Bank (Nig) Ltd v. Khaladi (1993) 9 NWLR (pt. 315) 44 at 55.
U. T. C (Nig) Ltd v. Pamotei (1989) 2 NWLR (pt. 103) 244 at 298
Aguize v. P. A. B Ltd (1992) 4 NWLR (pt. 233) 57 at 89.
UAC (Technical) Ltd v. Anglo Canadian Cement Ltd (1966) NMLR 349 Bank of the North Ltd v. Inter Bank S. A. (1969) All NLR 8.
On the meaning of a judgment on the merit the Court was referred to the case of Chief PDC Okenwa v. The Military Governor of Imo State & ors (2000) 4 NSCQR 278.
It is submitted on behalf of the Appellant that the trial judge having entered judgment in favour of the Appellant under the undefended list on the 12th day of October, 2006 becomes functus officio in so far as suit No. KDH/KAD/601/2006 is concern.
Learned counsel to the Appellant submitted that the trial Court by setting aside its judgment of 12th October, 2006 assumed the status of an appellate Court contrary to the provision of section 241 (1)(a) of the 1999 Constitution of the Federal Republic of Nigeria and the case of Noah George Onyeabuchi v. Independent National Electoral Commission & 4 ors. (2002) 10 NSCQR 58.
Learned counsel for the Appellant submitted that the judgment of the trial Court in suit No. KDH/KAD/601/2006 under the undefended list delivered on the 12th day of October, 2006 is unassailable and unchallengeable except on appeal as same was in conformity with tested legal principles governing matters under the undefended list.
It was argued on behalf of the Appellant that where a party to an action seeks to challenge a judgment or order of a Court that finally disposes of the rights of the parties, one of the ways of doing that is by an appeal to a higher Court.
He maintained that a judgment or order of a court can only be challenged on the grounds of fraud by bringing a fresh action to set it aside and not by way of a motion on notice in the same suit. The court was referred to the cases of
Chief Philip Anatogu & 2 ors v. H. R. H. Igwe Iweka II & 4 ors (1995) 9 SCNJ 1 at 34.
Vulcan Gases Ltd v. Geseuschatt Fur-Ind. Gasverwertung A. E. (G.I.V) (2001) FWLR (pt. 53) 1 at 60 (2001) 6 NSCQR 481.
The Haesbury’s laws of England (4th Edition) No 1.26 paragraph 560.
Learned counsel submitted that in a civil matter where there is an allegation of crime as in the instant case on appeal, it must be proved beyond reasonable doubt as required under section 138 (1) of the Evidence Act.
The Court was referred to the cases of
Chief Jim Nwobodo v. Chief C. C. Onoh & 2 ors (1984) 1 S. C. N.L.R. 1 at 5.
G. C. Akpunonu v. Beakart Overseas & 2 ors (2000) 3 NSCQR 184
He submitted that the allegation of fraud by the Respondent was not proved beyond reasonable doubt as required by law.
Learned counsel maintained the ruling of the trial Court of 15th May, 2007 is unreasonable, unwarranted and cannot be supported having regard to the weight of affidavit evidence and circumstance of the case.
He insisted that there is no modicum or scintilla of evidence either by way of invoices or purchase receipt to support the Respondent’s claim that the market value of his properties which were auctioned by the trial Court in execution of the judgment of 12th October, 2006 was N1, 079,785.00 (One Million Seventy Nine Thousand Seven Hundred and Eighty Five Naira Only).
The Court was referred to the cases of Sparkling Breweries Ltd & 5 ors v. Union Bank of Nigeria Ltd (2007) 7 SCNJ 321 at 340.
N. T. A v. Anigbo (1972) 5 SC 146.
Learned counsel maintained that the award made by the trial court to the Respondent via a motion on Notice is outlandish and unknown to our jurisprudence and Court process because in a civil action any claim which is bases on an allegation of fraud must be proved by way of a writ of summons and not by a motion on notice. The Court was referred to the provisions of order 1 rule 2 (1) (b) of the Kaduna State High Court (Civil Procedure Rules) 1987.
Learned counsel argued that the award of N1, 079,785.00 (One Million, Seventy Nine, Thousand Seven Hundred and Eighty Five Naira Only) to the Respondent was based on assumption.
He maintained that execution was levied against the properties of the Respondent on 23rd day of November, 2006 and that the said properties were auctioned on the 13th day of December 2006, i.e. 20 days from the date of execution and yet the Respondent did nothing but went to sleep. He argued that from the date of the said auction sale to the date the Respondent filed his motion to set aside the judgment of 12th October, 2006 a period of 7 months or 196 days had elapsed.
Learned counsel to the Appellant contended that the Respondent was guilty of culpable delay for failing to challenge the auction sale within 21 days as required under section 40 and 47 of the Sheriff and civil process law (cap 141) laws of Kaduna State 1991. He argued that delay defeats equity and equity does not help the indolent but the vigilant.
The Court was referred to the cases of Hawad International School Ltd v. Muna Project Ventures Ltd & Anor (2004) FWLR (pt. 188) page 963 at 987 – 990.
Alhaji Mustapha Kachalla v. Alhaji Tijani Banki & 2 or (2001) FWLR (pt. 73) page 1, (2001) 10 NWLR (pt. 721) page 1, (2001) 10 NWLR (Pt. 721) Page 442.
Learned counsel to the Appellant finally urged the Court to uphold this appeal by affirming the judgment of the trial High Court delivered on the 12th day of October, 2006 and to set asides the ruling delivered on 15th day of May, 2007.
In response to the argument of the learned counsel to the Appellant, it was argued on behalf of the Respondent that where there is failure to serve a party needed to be served, the trial Court would make an order to set aside any proceedings that may have been taken against such person. The Court was referred to the case of Odutola v. Kayode (1994) 2 SCNJ Page 21 at 29.
It has been contended on behalf of the Respondent that the purported service on the Respondent at No. Av.7 Benin Street, Kaduna the Appellant place of business as against No. 26 Omotosho Road, Sabon Tasha, Kaduna the last known address of the Respondent amount to no service in law since there is no way the Respondent would have come across the Court process after same may have been pasted at the Appellant place of business.
Learned counsel to the Respondent submitted that the failure of the Appellant to serve the Respondent with the Court process of the lower Court amounts to denial of fail hearing. The Court was referred to the case of Olumesan v. Ogundepo (1996) 2 SCNJ 172 at 185.
On the reliance of the Appellant on the records of the lower Court as the proof of service, it was submitted on behalf of the Respondent that the Appellant can not benefit from that since it is the Appellant that mislead the Court to believe that the last known address of the Respondent as required by law was Av.7 Benin Street Kaduna instead of No. 26 Omotosho Road Sabon Taasha, Kaduna.
Learned counsel to the Respondent submitted that it is trite law that the lower Court has inherent powers to set aside it own judgment when it discovers that such judgment amounts to avoid judgment. The Court was referred to the cases of
Chime v. Ude (1996) 7 SCNJ 82 at 89
Olabanji v. Odofin (1996) 2 SCNJ 242 at 247.
Skenconsult (Nig) Ltd v. Ukey (1981) SC 6.
Learned counsel further submitted that whether a judgment was obtained under undefended list and General Cause List once such judgment in discovered by the lower Court to be void judgment the same lower Court has the inherent power to set same aside.
He maintained that the absence of service as required by law renders the entire proceedings of a trial Court void no matter how well conducted by the Court.
Learned counsel contended that a judgment under the undefended list can be said to be judgment on the merit only when all the parties to the action are given equal opportunity to be heard, and that in the instant matter the Respondent was not aware of any proceedings against him until the day of execution as shown by the records as regards service of the processes.
He urged the Court to hold that the lower Court has inherent powers to set aside its judgment under the undefended list once same amount to a void judgment.
Learned counsel maintained that it is settled law that a judgment or order which is a nullity owing to failure to comply with an essential provision such as services of process, can be set aside by the Court which gave the judgment or made the order. The Court was referred to the case of Anatogu v. Iweka (1995) 9 SCNJ 1 at 33.
Learned counsel maintained that the alleged misrepresentation by the Appellant is such that affects the jurisdiction of the lower Court and does not require the Respondent to files a fresh action.
On the award of N1, 079,985.00 in favour of the Respondent by the lower Court after setting aside the void judgment, it was submitted on behalf of the Respondent that the award was reasonable because same followed the cause of events.
He maintained that the amount was arrived at from computation of price of each of all the sold Respondent properties and which said price was never countered by the Appellant.
Learned counsel submitted that section 40 and 47 of the Sheriff and civil process law (cap 141) laws of Kaduna State 1991 has nothing to do with the instant matter because the law is only applicable to unmovable property sold in an auction sale. He cited in support the case of Hawad International School Ltd v. Muna Projects Venture Ltd & Anor (supra).
Learned counsel finally submitted that a challenge to a void judgment can be made by an affected party without leave of court.
Service of process is vitae under due process of law. See Guda v. Kitta (1999) 12 NWLR (pt. 629) page 21.
The service of the writ of summons on a Defendant is a condition precedent for the exercise of jurisdiction by the Court over the subject matter of the action and over the Defendant. In all cases where services of process is to be effected, it must be by personal service, but where personal service can not be conveniently effected, then the Court may order for substituted service. See
Kida v. Ogunmole (2006) 13 NWLR (pt. 997) page 377.
Teno Eng. Ltd. v. Adisa (2005) 10 NWLR (pt. 933) page 346
Ononye v. Chukwuma (2005) 17 NWLR (pt. 953) page 90.
Idiato v. Eyako (2005) 11 NWLR (pt. 936) page 349.
It follows therefore that any judgment base on a process which is not served is liable to be set aside. See Hyppohte v. Egharevba (1998) 11 NWLR (pt. 575) page 598.
It has been held in a plethora of decided authorities that failure to give notice of proceedings to an opposing party in a case where service of Court process is required is a fundamental omission capable of rendering such proceedings void because the Court will have no jurisdiction to entertain such a matter. See
Mark v. Eke (2004) 5 NWLR (pt. 865) page 54;
Wema Bank Nig. Ltd v. Odulaja (2003) 3 SC 83;
Tubonemi v. Dikibo (2006) 5 NWLR (pt 974) page 565;
Onadeko v. U.B.A. Plc (2005) 4 NWLR (pt. 916) page 440;
Ayogu v. Nnamani (2004) 15 NWLR (pt. 895) page 134.
Order 12 Rule 5 (a) of the High Court (Civil Procedure) Rules 1987 of Kaduna State provides:
“5. Where it appears to the Court (either after or without an attempt at personal service) that for any reason personal service can not be conveniently effected, the Court may other that service be effected either
(a). by delivering 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)…
(c)…
(d). by notice put up at the principal Court – house of, or some other place of public resort in, the Judicial Division wherein the proceedings in respect of which the service is made is instituted, or at the usual or last known Place of abode, or business of Person to be served”.
It is clear from the wordings of order 12 Rule 5(a) and (d) of the High Court (civil procedure) rules 1987 of Kaduna State reproduced above that an applicant who applies for the Court process to be served by substituted means has a choice as to where to effect service on the person to be served, the applicant may decide either to serve the process on the person to be served at with processes either at
(a). the usual or last known place of abode
OR
(b). the usual or last known place of business.
In the instant appeal the Appellant at the Court below choose to effect the service of the writ of summons and other Court processes on the Respondent at his last known place of business which is AV7 Benin Street, Kaduna.
The intention of the Appellant to effect service in that manner and their reasons for choosing that mode were expressly stated at page 6 of the record of appeal where in paragraphs 5(f) and 5(g) of the affidavit in support of the motion ex-parte dated 23/8/2006 seeking for the leave of the Court below to serve the Respondent by substituted means, it was deposed as follows:
“5(f). That the Defendant last known address and place of business is No. AV7 Benin Street, Kaduna.
(g) That the plaintiff honestly beliefs that all the Court process in this matter will get to the Defendant if it is pasted at No. AV7 Benin Street, Kaduna at a less cost and convenience.
I see nothing fraudulent in the Appellants decision to serve the Respondent at his last known place of business instead of his last known place of abode, which would have been desirable, but after all the choice of where to effect service and the mode of service are permitted under the rules of the Kaduna State High Court Civil Procedure Rules.
The service of the Court process on the Respondent in the instant case has been affirmed at page 12 of the record of Appeal by the affidavit of service filed by the bailiff of the court below in which it was declared inter alia as follows:
“a writ of summons, a true copy whereof is hereunto annexed hearing notice with Court order issued out of this Court at Kaduna upon Defendant upon the complaint of plaintiff by delivering the same personally to by pasting at No. AV7 Benin Street, Kaduna….
Sworn at High Court
This 19th day of September, 2007.
Before me
Signed
Commissioner for Oath
19/9/2006”.
The validity of the said services effected on the Respondent has been acknowledged by the Court below itself at page 55 of the record of appeal.
Order 12 rule 28 of the Kaduna High Court (Civil Procedure) Rules 1987 provides thus:
“In all cases where service of any writ or document shall have been effected by a bailiff or other offices of Court an affidavit of service sworn to by such bailiff or either officer shall on production, without proof of signature be prima facie evidence of service”
The Respondent is not denying the fact that his last place of business is AV7 Benin Street Kaduna. The grievance of the Respondent is that he should have been served at his residential address and not at AV7 Benin Street, Kaduna which he also claimed is the business address of the 1st Respondent.
The Respondent at page 16 of the record of Appeal depose in paragraph 7 of the affidavit in support of the motion dated 18th December 2006, thus:
“7. That the address quotes by the judgment creditor crucial in their application is the address of the Plaintiff/Judgment creditors Company and we have since ceased from working there, have been interdicted since February, 2006.”
Also in paragraph 19 of the affidavit in support of the motion on notice dated 4th April, 2007 at page 19 of the record of Appeal, the Respondent deposed as follows:
“19. That my last known address to the best knowledge of the 1st Appellant is 26 Omotosho Road, Sabon tasha, Kaduna, where the 1st Respondent served me her termination letter and where, I live up to date and not AV7 Benin Street Kaduna the business address of the 1st Respondent a place I was thrown out vide 1st Respondent termination with (Exhibit A). (Underline mine)”.
It is clear from the sworn deposition of the Respondent as contained in the record of Appeal that he claimed 26 Omotosho Road Sabon Tasha, Kaduna and No. 1152 Post Office Road, Sabon Tasha Kaduna as his residential address.
The paragraph 6 and 15 of the affidavit deposed to by the Respondent at pages 15 and 16 of the record of Appeal, respectively, the Respondent deposed thus:
“6. That it is not true that we are unreasonable nor that our address are unknown, the Respondent served me the termination letter in my residence at 1152 Post Office Road Sabo Tasha (underline mine).
15. That I know as a fact that the affidavit of service deposed to and relied on by the Plaintiff/Judgment creditor used was the Plaintiff/Judgment creditor’s company address, whilst my residential address is at No. 1152 Post Office Road, Sabon Tasha Kaduna”
(Underline mine)
However at page 26 of the record of appeal, disclosing the affidavit in support of the motion on notice dated 4th April, 2007 he deposed in paragraph 19 of the said affidavit concerning his residential address thus:
“19. That my last known address to the best knowledge of the 1st Appellant is No. 26 Omotosho Road Sabon Tasha Kaduna where the 1st Appellant served me her termination letter and where I live up to date and not AV7 Benin Street Kaduna”.
I am of the opinion that the Appellant was right in serving the Respondent with the writ of summons, the hearing notice and other Court processes at his last known place of business AV7 Benin Street instead of his last known place of residence which is uncertain. The Appellant had deposed to two different Residential addresses in paragraphs 15 and 19 of his affidavit reproduced above.
The contention of the Respondent that there was no proper service of the Court processes in this matter on him is therefore misplace and incorrect. I am of the firm view that the Respondent was properly served with the writ of summons, the hearing notice and other Court processes in the matter.
The Respondent had alleged that the judgment of the Court below delivered on 12th October 2006 was obtained by fraud.
Section 138(1) of the Evidence Act provides:
“If the commission of a crime by a party is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt”.
See Chief Jim Nwobodo v. Chief C. C. Onoh & 2 ors (1984) 1 SCNLR 1 at 5;
G. C. Akpunonu v. Beakart Overceas & 2 ors (2000) 3 NSQR 184.
I have earlier said in this judgment that there is nothing fraudulent in the Appellant’s choice to serve the Respondent at his last known place of business instead of his last known place of abode.
The Respondent from the facts contained in the Record of Appeal has also not discharged the burden place on him of proving his allegation of fraud against the Appellant beyond reasonable doubt.
The Respondent in his motion on notice dated 4th April 2007 impeached the judgment of the Court below, delivered on 12th October 2006 under the undefended list procedure on the ground that it was obtained by fraud.
The proper manner of impeaching a judgment alleged to have been obtained by fraud is by filing a fresh action. The action is regarded as a new action because it requires fresh facts to be presented, and not the old material. See
N. S. Eng. Co. Ltd v. Ezendukes (2002) 1 NWLR (pt 748) page 469;
Anatogu v. Iweka (1995) 8 NWLR (pt. 415) page 547.
In the case of Chief Philip Anatogu & 2 ors v. H. R. H. Igwe Iweka II and 4 ors (1995) 9 SCNJ 34 the Supreme Court held:
“If a judgment or order has been obtained by fraud a fresh action will lie to impeach the judgment.”
Also in the case of Vulcan gases Ltd v. Gesellschaft Fur Ind. Gaverwertung A. G. (G. I. V.) (2001) FWLR (pt. 53) 1 at 60 the Supreme Court obtain by fraud thus:
“Where a party seek to challenge on grounds that it obtained by fraud or mistake, a judgment or order that finally disposes of the issue raised between the parties, the only ways of doing it that are open to him are by an appeal from the judgment or orders to a higher Court or by bringing a fresh action to set it aside”
In the instant appeal the procedure adopt by the respondent in approaching the Court below to set aside its judgment by way of a motion on notice is most improper.
Now, after having dealt with the peripheral issues of service and fraud raised by the Respondent, being the grounds upon which the Court below set aside its decision of 12th October 2006, the stage is now set to consider the main issue in this Appeal which is whether the Court below can set aside its own judgment delivered under the undefended list procedure.
It is trite that a judgment delivered under the undefended list procedure is a judgment on the merit. It can only be set aside on appeal. However the trial Court has inherent powers to set it aside where there is an allegation that the judgment was obtained by fraud. This is because fraud if established would nullify the judgment. See Remawa v. NACBC F. C. Ltd (2007) 2 NWLR (pt. 1017) page 155.
Duke v. Akpabiyo Local Government (2005) 19 NWLR (pt. 959) page 130.
Mark v. Eke (2004) 5 NWLR (pt. 865) page 54;
G. Cappa Plc v. Abinire and Sons (Nig) Ltd (2002) FWLR (pt. 95) page 349 at 364.
First Bank (Nig.) Ltd v. Khalid (1993) 9 NWLR (pt. 315) page 44 at 55;
Agueze v. P. A. B Ltd (1992) 4 NWLR (pt. 233) page 57 at 89;
U. T. C (Nig.) Ltd v. Pamotaei (1989) 2 NWLR (pt. 103) page 244 at 298
Bank of the North Ltd v. Inter Bank S. A. (1969) All NLR 8.
U. A. C. (Technical) Ltd v. Anglo Canadian Cement Ltd (1964) NMLR 369.
The procedure adopt by the Respondent in impeaching the judgment of the Court below delivered on 12th October, 2006. Through a motion on notice is not only most improper but also unknown to law.
A Court action for any claim which is based on an allegation of fraud must come before the Court by way of a writ of summons and not by way of a motion on notice. The Kaduna State High Court (Civil Procedure) Rules 1987 provides under Order 1 Rule 2(1)(b) as follows:
“2(1) subject to any provision of an Act or of these rules by virtue of which any proceedings are expressly required to be begun otherwise than by writ, the following proceeding shall be begun by writ, that is to say proceedings:
“(a)…
23
(b). in which a claim made by the Plaintiff is based on an allegation of fraud”
It is clear from the facts disclosed in this appeal that the proceedings invoked by the Respondent to set aside the judgment of the Court below delivered on 12th October 2006 was not initiated by due process of law. See
Madukolu v. Nkemdilim (1962) 1 All NLR 587.
B. M. Ltd v. Woerman – line (2009) 13 NWLR (pt. 1157) page 149.
In the instant case the Court below lacks the competence to adjudicate over this matter which has not come to it initiated by due process of law. There being a defect in the competence of the Court below, its ruling delivered on 15th May, 2007 is therefore a nullity, and all consequential orders and awards made consequent upon the said decision are also a nullity and are hereby set aside.
The decision of the Court below delivered on the 10th October, 2006 under the undefended list procedure is hereby restored.
There is merit in this Appeal and it is hereby allowed. There shall be no order as to costs.
THERESA NGOLIKA ORJI – ABADUA, J.C.A.: I had the opportunity of reading before now the leading judgment of my learned brother Aboki, J.C.A., and I am in completed agreement with his reasoning and conclusion therein, and I abide by all the orders, made therein.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my Lord, Honourable Justice Abdu Aboki, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I am in total agreement with the reasoning and I abide the conclusions therein.
Reading the application dated the 4th of April, 2007 filed by the Respondent and upon which the lower Court proceeded to set aside the judgment it had entered on the 12th of October, 2006, it is obvious that, though the Respondent alleged improper service of the originating process, the fulcrum of the application was that the Appellant obtained the judgment of the 12th of October 2006 by fraud. The Respondent went further to state the particulars of fraud on the face of the application. It is trite law that the options opened to a party seeking to set aside a judgment on the ground of fraud in the same court that entered the judgment or in a court of coordinate jurisdiction is to commence a fresh action, and not to proceed by way of a motion. The rationale for this is obvious. An allegation of fraud is criminal in nature and it is settled that an allegation of a criminal nature, be it in a civil or criminal proceeding, must be proved beyond reasonable doubt – Nnachi V. Ibom (2004) 16 NWLR (Pt 900) 614, All Nigeria Peoples Party V. Independent National Electoral Commission (2010) 13 NWLR (pt 1212) 549 and Adewale V. Olaifa (2012) 17 NWLR (pt 1330) 478. This entails averment and proof of fresh facts and circumstances and this can only be properly done in a fresh action. The Respondent proceeded by way of an application in the instant case.
The Respondent’s complaint on the issue of service of the processes was not that he was not served with the originating processes but that the processes were served at his last known place of business by pasting rather than at his present place of abode which was well known to the Appellant. The Appellant applied for and obtained from the lower Court an order of substituted service to paste the processes at the last known place of business of the Respondent and the process were posted at the address. Order 12 Rule 5 of the High Court of Kaduna State (Civil Procedure) Rules permits such manner of service. It was not the case of the Respondent that the address where the processes were posted was not his last place of business. The mode of service employed in serving the processes on the Respondent is recognized under the Rules of Court. Thus, the complaint of the Respondent was not non-service, which would have rendered the proceedings and the judgment entered thereon a nullity, but that service could have been better done. Therefore, the only viable ground on the application of the Respondent to set aside the judgment entered under the undefended list was fraud and, as stated earlier the only way to challenge a judgment on the ground of fraud before the same Court that entered the judgment is to commence a fresh action, not by way of application.
One of the constituent elements of the jurisdiction of a court to entertain an action or an application is that the action or the application has been initiated in compliance with the due process of law. The Respondent did not approach the lower Court through the recognized mode for canvassing the issue of fraud upon which he predicated his challenge to the judgment entered against him. The lower Court did not thus have the requisite jurisdiction to entertain the application to set aside the judgment.
It is for these reasons, in addition to those elucidated in the lead judgment, that I also find merits in this appeal. I agree that the appeal be allowed and I hereby set aside the ruling of the High Court of Kaduna State delivered in Suit No KDH/KAD/601/06 by Honorable Justice Esther Y Inuwa on the 15th of May, 2007 along with the consequential orders made therein. I also agree that the parties should bear their respective costs of the appeal.
Appearances
MIKE O. NWAKANMAFor Appellant
AND
YEMI S. ADEKUNLEFor Respondent
