HIGH CHIEF (DR.) SAMA EKPO SAMA v. HIS HIGHNESS NTOE EDET ETIM OMIN & ORS
(2018)LCN/12001(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of July, 2018
CA/C/68/2017
RATIO
EVIDENCE: WHERE AFFIDAVIT IS NOT DEPOSED BY THE BAILIFF
“The law is trite that an affidavit of service deposed to by the Bailiff of a Court stating the fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matter stated in the affidavit. See SCHRODER VS. MAJOR (1989) 2 NWLR (PT. 101) 3 @ 11 E ? H; OKOYE VS. CENTRE POINT MERCHANT BANK LTD. (2008) 15 NWLR (PT 1110) 335; IDISI VS. ECODRIL (NIG.) LTD. (2016) LPELR 40438 (SC). The law is equally settled that the presumption of regularity in this regard is rebuttable. A Defendant who intends to challenge the affidavit not served deposed to by the Bailiff must file an affidavit denying service and detailing specific facts, which show that he could not have been served on the date, or at the time, or at the place or in the manner deposed to. It would then be for the Court to determine whether or not the party complaining was indeed served accordingly.” PER STEPHEN JONAH ADAH, J.C.A.
INTERPRETATION: WHO IS A JURISTIC PERSON
“The word juristic person means an artificial person. This in law is synonimical with legal person, fictitious person, juristic person and juridical person. That is an entity such as a corporation, created by law and given certain legal rights and duties of a human being. See Black’s Law Dictionary (Eight Edition) – A juridical or juristic person is distinct from a human being who Defendants/Respondents are. So whether they are dead or are alive they are not juristic persons.” PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
HIGH CHIEF (DR.) SAMA EKPO SAMA Appellant(s)
AND
1. HIS HIGHNESS NTOE EDET ETIM OMIN
2. CHIEF ESSIEN EKPENYONG EDIM
3. CHIEF OMIN ITU
(All acting for themselves and on behalf of the accredited Representatives of Ikot Omin Qua Clan, Calabar) Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the Calabar Judicial Division of the High Court of Cross River State in Suit No. HC/155/2013 delivered on 25th day of November, 2013 by M. Edem, J. (as he then was).
The Appellant was the Plaintiff in that Court while the Respondents were Defendants.
The Appellant on 21st day of May 2013 took out a writ of summons of the Court below. All the originating processes were filed along with the writ of summons including the statement of claim and other processes. Parties were served with the processes. The Respondents through their Counsel filed a motion on notice on the 17th day of September, 2013 praying for an order dismissing the suit for being incompetent and for want of jurisdiction. At pages 45 to 46 of the record of appeal is the said motion on notice.
The reliefs sought by the motion are in the main two and the grounds are two. These are couched as follows:
(1) AN ORDER dismissing this suit for incompetence of the originating process and for want of jurisdiction and that it also constitute an abuse of Court process.
(2) AN ORDER discharging the order of interlocutory injunction by this Honourable Court made on the 1st day of July, 2013.
And for such further order or orders as this Honourable Court may deem fit to make in the circumstance of this application.
TAKE FURTHER NOTICE that the grounds upon which the application is brought are as follows:
(a) That the provisions of Order 8 Rule 6(1) & (2) of the Cross River State High Court (Civil Procedure) Rules 2008 the life span of originating process is three months from the date of issue.
(b) That the 1st, 2nd and 3rd Defendants are not juristic persons.
The motion was supported by an 18 paragraph affidavit deposed to by Edet Essien, Esq. Paragraphs 3 to 4, 5, 6, 7, 8, 11, 12 and 13 are very fundamental. They are reproduced as follows:
(3) That the originating processes in this suit have not been served on the 1st, 2nd and 3rd Defendants since they were filed on the 21st of May, 2013.
(4) That since it was filed the writ expired on 21st of August, 2013 being 3 months and 26 days after its issue.
(5) That there is no application for the revalidation of the writ within the time provided by the rules of Court.
(6) That I know that by the provisions of Order 8 Rule 6(1) & (2) of Cross River State High Court (Civil Procedure) Rules 2008 a writ has a life span of three months.
(7) That I have been informed by Prince Omin Edim Omin of Ikpae Omin Qua Clan Council Secretary whom I verily believe him that the Defendants are not juristic persons.
(8) That the originating processes in this suit since they were filed and issued on the 21st day of May, 2013 have not been served on the Defendants/Applicants.
(11) That the said Prince Omin Edim Omin informed me and I verily believe him.
(a) That the 3rd Defendant on record died many years ago.
(b) That the 2nd Defendant also died many years ago.
(c) That the 1st Defendant died some few years ago.
(12) That the said writ issued against the Defendants was issued post humously after the Defendants/Applicants had joined their ancestors.
(13) That in actual fact, there is no action pending in this Court as the Defendants will not be able to defend themselves in the grave.
The Respondents filed a counter- affidavit deposed to by Patrick Arikpo. It is of 14 paragraphs. Paragraphs 3, 4 and 6 are very material in the instant case. These three (3) paragraphs read:
(3) That paragraph 3 of the Defendants’ affidavit is absolute falsehood. The originating processes in this suit were served on them by the Bailiff of this Honourable Court on the 22nd day of May, 2013. Find attached a certified true photocopy evidencing proof of service referred hereto as Exhibit MEU 1.
(4) That by virtue of the fact that the 1st – 3rd Defendants were served, the provisions of Order 8 Rule 6(1) & (2) are inapplicable to paragraphs 4 – 6 of the Defendants’ affidavit.
(6) That paragraphs 8 – 14 are all false. For the Bailiff of this Honorable Court by virtue of proof of service in the Court file dated 22nd day of May, 2013, personally served the originating processes on the 1st Defendants in their palace who signed and collected on behalf of the Defendants i.e. 2nd and 3rd Defendants.
The learned Counsel for the Appellant in his Brief distilled three (3) issues for determination. These issues are couched as follows:
i. Whether the learned trial Judge was right in dismissing the suit not fully heard on the grounds that the Defendants were not served with the originating process and the writ had expired? (This issue is distilled from grounds 1 and 2 in the Notice of Appeal).
ii. Whether the learned trial Judge was right in law when he dismissed the suit of the Appellant on the ground that the Claimant?s suit cannot survive and remain in being with one party, the Claimant? (This issue is distilled from Ground 3 in the Notice of Appeal).
iii. Whether the learned trial Judge properly evaluated the Affidavit evidence before him, before coming to the irresistible conclusion of dismissing the Appellant?s case which was not heard? This issue is distilled from Ground 4 in the Notice of Appeal).
These three (3) issues were also adopted by the Respondent for consideration. These issues were well argued in their respective Briefs. These three (3) issues can all be rolled with the first issue and the appeal can effectively be determined on these issues as captured in this appeal.
ISSUE ONE AND THREE
The issues are whether the learned trial Judge was right in dismissing the suit not fully heard on the grounds that the Defendants were not served with the originating processes and the writ had expired and whether there was proper evaluation of evidence before the dismissal?
The learned Counsel for the Appellant submitted that to invoke the jurisdiction of the Court, service of Court processes on the other parties is fundamental. That failure to serve processes is a fundamental jurisdictional breach which renders the entire proceedings a nullity. He relied on the cases of KIDA VS. OGUNMOLA (2006) 13 NWLR (PT. 977) 377, 394, 395; TUBONEMI VS. DIKKO (2006) 5 NWLR (PT. 974) 565, 586 and NIGERIAN NAVY VS. GARRICK (2006) 4 NWLR (PT. 969) 69, 101.
He contended that the 1st Respondent was duly served with the originating processes as required by law. He relied on the proof of service at page 63 of the record of appeal. He submitted further that where there are several Defendants some of whom are served and others not served; an originating process cannot be deemed to have wholly expired and set aside. That the order setting aside the claim can only affect these Respondents not served before the originating process expired. He relied on the cases of BISUAKEFE VS. AMANKE (2012) 5 NWLR (PT 1294) 455, 466; and KOLAWOLE VS. ALBERTO (1989) 1 NWLR (PT. 98) 382, 396. The learned Counsel contended that there was no challenge of the methodology of service by the Respondents and that the Court below was making a case for the Respondents. The Appellant therefore urged the Court to resolve this issue against the Respondents.
The Respondents in their brief of argument canvassed that the service of a writ or processes on the Respondents is one of the fundamental condition precedent to the exercise of jurisdiction by a Court of law. That any irregularity that renders a proceeding incurably defective null and void cannot confer jurisdiction.
The learned Counsel for the Respondents relied on the cases of SKENCONSULT NIG. LTD. VS. UKEY (1982) 1 SC, 6; MANAGEMENT ENT. LTD. VS. OTURANYA (1987) 2 NWLR (PT. 55) 179; OBIMONURE VS. ERINOSHO (1996) ANLR 280; MACFOY VS. UAC LTD. (1961) ANLR 1160; LEEDO PRESIDENTIAL MOTEL LTD. VS. BANK OF THE NORTH LTD. (1988) 10 NWLR (PT. 570) 353. That the Appellant contended that the 1st Respondent duly signed and was duly served with the originating processes. He contended that there was no service at all on the Respondents. He submitted that a defect in competence of an action spells absence of jurisdiction. He relied on the case of ONYEMAIZU VS. OJIAKO (2000) FWLR (PT. 2) 310. That under the Rules of Court service must be effected personally on the party and not the type of service in this case. He said that the affidavit of service in the instant case was incurably bad and defective. That the Court below was therefore right to dismiss the case.
It has been a settled issue that service of originating processes is very fundamental to the jurisdiction of the Court to hear any case. Hence the Rules of Court do make clear and pungent provision for it. Under Order 12 Rule 2 of the Cross River State High Court (Civil Procedure) Rules 2008, the process originating an action must be served on the party by delivering to the party to be served a copy of the process duly certified.
Under Order 8 Rule 6(1), the life span of every originating process shall be three (3) months. The implication of this is that the originating process must be served within 3 months if not it expires and it has to be renewed. When it expires and there is no effort on the part of the Plaintiff to renew it the writ is dead. A valid originating process is the foundation of the proceedings being heard by the Court. The Court no doubt set the time for its life span. The same Court has the duty to ensure that any violation of the Rules is not allowed.
By these provisions of the Rules of the Court below a Plaintiff must take out an originating process any time but once issued its life span is three (3) months. Time is therefore of essence in serving an originating process on the Respondents once issued. The Appellant showed a proof of service which was annexed to the counter-affidavit as Exhibit MEU1.
See paragraph (3) of the counter-affidavit and the annexed exhibit at pages 60 and 63 of the record of appeal.
Exhibit MEU1 is an affidavit of service deposed to on 3rd July, 2013 by the Chief Bailiff 1 of the Court below. This proof of service indicates that on 22nd day of May, 2013, the writ of summons, statement of claim, list of witnesses, written statement on oath of the Claimant, List of documents, motion on notice, affidavit, written address and exhibits, were served by delivering the same personally to all the Defendants, at Ikot Omin – signed, collected by Chief Omin for himself and others.
In the further and better affidavit, paragraph 3 of the Claimant’s counter-affidavit was denied. The affidavit further averred that the originating processes were served on a person who is not a party in this suit but no one was named or described as the person served instead of the 1st Defendant as alleged in the affidavit. The law is settled that a fact not effectively and effectually controverted is deemed proved. If a deposition that the processes were served on the 1st Defendant is denied with an allegation that the processes were served on another person, the details or particulars of the other person or evidence of that fact ought to be laid out before the Court. See the case of BUHARI VS. OBASANJO (2003) LPELR ? 813 (SC). It is obvious, I must say, that a further affidavit is necessary where a counter-affidavit has actually denied or refuted an allegation held unto in an affidavit. Such a further affidavit must not be half hearted.
It must in specific terms react to the particulars it sets out to deny. This is essentially necessary in the instant case where there is an affidavit of service of the processes before the Court. In the case of REV. (PROF.) PAUL EMEKA VS. REV. (DR.) CHIDI OKOROAFOR & ORS. (2017) LPELR ? 41738 (SC) Kekere Ekun, JSC held as follows:
Where any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisite for its validity were complied with.
The law is trite that an affidavit of service deposed to by the Bailiff of a Court stating the fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matter stated in the affidavit. See SCHRODER VS. MAJOR (1989) 2 NWLR (PT. 101) 3 @ 11 E ? H; OKOYE VS. CENTRE POINT MERCHANT BANK LTD. (2008) 15 NWLR (PT 1110) 335; IDISI VS. ECODRIL (NIG.) LTD. (2016) LPELR 40438 (SC). The law is equally settled that the presumption of regularity in this regard is rebuttable. A Defendant who intends to challenge the affidavit not served deposed to by the Bailiff must file an affidavit denying service and detailing specific facts, which show that he could not have been served on the date, or at the time, or at the place or in the manner deposed to. It would then be for the Court to determine whether or not the party complaining was indeed served accordingly.
In the instant case, the affidavit of service indicates that the 1st Respondent was duly served and that he accepted service for other Defendants. Since there was no leave of Court granted to serve others by substituted means, service is only proved effected in respect of the 1st Respondent. The service on the other Respondents which was not personal service is irregular for the law requires that such a service be a personal service. What is obvious therefore is that the service on the 1st Respondent was duly carried out on time. For the other Respondents said to be served by proxy, the service is irregular and void. They were the only ones not served. Only the 1st Respondent was served duly. In this situation, since one of the Respondents was served on time, the case against the Defendant cannot be dismissed or struck out on grounds of failure to serve the writ on the Respondents. Even if the situation is such that all the Defendants were not served and the writ of summons expired, the position of the law is that the suit would have been deemed incompetent and what is expected of the lower Court is to strike it out and not a dismissal of the claim.
I am of the view therefore that these issues are resolved against the Respondents.
ISSUE TWO
This issue is on whether the Court below was right in law when it dismissed the suit on ground that the Claimant’s suit cannot survive and remain in existence with one party, the Claimant. This issue was distilled from grounds 3 of the notice of appeal.
The learned Counsel for the Appellant in the Appellant’s brief had submitted that there was no evidence to prove the assertion that the Defendants were all dead. He also canvassed that the Court below was in error for holding that there was a case of abuse of the process. He canvassed that no incident of abuse of process has been seen in this case. He cited the cases of:
i. BUKOYE, ESSA OF OFFA VS. ADEYEMO 67 NSCQLR 432.
ii. ABUBAKAR VS. BEBEJI OIL & ALLIED PRODUCTS LTD. (2009) ALL FWLR (PT. 362) 1855.
iii. ADELEKE VS. OYO STATE HOUSE OF ASSEMBLY (2006) ALL FWLR (PT. 319) 862.
iv. DAPIANLONG VS. DARIYE (NO. 1) (2007) ALL FWLR (PT. 373) 1.
v. A.R.C. VS. JDP CONSTRUCTION NIG. LTD. (2003) FWLR (PT. 153) 251 @ 254.
He urged this Court to resolve issue two against the Respondents.
The learned Counsel for the Respondents in their brief contended that paragraph 11 of the affidavit averred that the Respondents were dead. That it was erroneous to claim that the death was not proved. The learned Counsel for the Respondents submitted that a Court has inherent jurisdiction to terminate proceeding before it at any stage, where it is apparent that such proceedings are incompetent, manifestly vexatious or scandalous and that in the instant case Appellant commenced action against dead Defendants. That it was an abuse of the process and urged the Court to resolve the issue against the Appellant.
On this issue it was alleged that the Respondents were dead. Fact of death of a party that is in contention must be proved. One way of such a proof is to produced death certificate or medical evidence to ascertain that someone has died. There is no such proof in the instant case other than the assertion in paragraph 11 of the affidavit that they are dead.
Furthermore, the question which must of necessity be asked in this case is who died? The Defendants at the Court below were sued in a representative capacity. The three (3) Defendants now Respondents on record in this appeal were sued for themselves and on behalf of the accredited representatives of their respective families at Ikot Omin Qua Clan, Calabar. The question is simply this: if the representatives died what about the people being represented? The position of the law is that apart from personal action such as libel or defamation where a cause of action survives a deceased party to a cause or matter the matter or cause does not die but must be continued with a living person or persons. See RE: OTUEDON (1995) 4 NWLR (PT. 392) 655.
In the instant case, the substantive claim is for a claim of title to land. The cause of action here no doubt survives the death of any representative Defendant. Death of the named representatives therefore does not terminate the cause of action. So it was truly wrong for the Court below to dismiss the cause on that basis.
There was a common mistake that occurred in this case which on the sideline needs be corrected. The Respondents in their further and better affidavit in support of their motion paragraph 4 averred that the Defendants are not juristic persons as they were ‘traditionally sick’. There is nowhere they explained the nature of what is meant by being ‘traditionally sick’. The word juristic person means an artificial person. This in law is synonimical with legal person, fictitious person, juristic person and juridical person. That is an entity such as a corporation, created by law and given certain legal rights and duties of a human being. See Black’s Law Dictionary (Eight Edition) – A juridical or juristic person is distinct from a human being who Defendants/Respondents are. So whether they are dead or are alive they are not juristic persons.
The learned trial Judge in his Ruling weighed heavily on dismissing the claim because he thought it was a case of abuse of process. Abuse of process it is well settled is in using the process of the Court improperly or mala-fide to the irritation and annoyance of the opponent. See A. G. LAGOS VS. A. G. FEDERATION (2014) LPELR 22701 (SC); SCHEEP VS. THE M.V.S. ARAZ (2000) LPELR 1866 (SC); IKINE & ORS. VS. EDJERODE & ORS. (2001) LPELR ? 1479 (SC); NTUKS VS. NPA (2007) LPELR 2076 (SC).
My Lord Sanusi, JSC in ALLANAH & ORS. VS. KPOLOKWU & ORS. (2016) LPELR 40724 (SC) brought out clearly the features of abuse of process as follows:
”The common feature of abuse of process of Court centres on improper use of judicial process by a party in litigation aimed or forgetting on interference with due administration of justice. To my mind, some of the features of abuse of Court process include the under mentioned features, even though they are by no means exhaustive.
These features are: (i) filling of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous actions on the same matter between the same parties even where there is in existence, a right to commence the action.
(ii) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
(iii) Where two or more similar processes are used in respect of the exercise of the same right, for instance, a cross appeal and a Respondent’s notice.
(iv) Where two actions are instituted in Court the second one asking for relief which may however be obtained in the first, the second action is, prima facie vexatious and an abuse of Court process.
See cases OKOROCHA VS. PDP (2014) 7 NWLR (PT. 4406) 213; SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156; OGOEJIOFOR VS. OGOEJIOFOR (2006) 3 NWLR (PT. 996) 206.”
In the instant case, the issue is that of expiration of the writ against the 2nd and 3rd Respondents. The 1st Respondent from the record before the Court had been served. There is no semblance of abuse of Court process involved. The Court below’s decision in that respect saying there was an abuse of Court’s process cannot be sustained.
This issue two therefore is resolved also against the Respondents.
From the foregoing therefore this appeal is full of merit. The appeal is accordingly allowed. The order of dismissal of the lower Court in Suit No. HC/155/2013 is hereby set aside. The order striking out the suit against the 2 and 3 Respondents is hereby made. The suit is remitted back to the lower Court for hearing by another Judge of the Court.
Parties are to bear their respective costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree entirely with the reasoning reached in the judgment just delivered by Adah, JCA, to the conclusive effect that the instant appeal is full of merits. Accordingly, the appeal is hereby allowed. I abide by the order remitting the suit [No. HC/155/2013] to the High Court of Cross River State, for hearing by another Judge of that Court.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege to read the draft of the lead judgment just delivered herein by my learned brother STEPHEN JONAH ADAH, JCA and I totally endorse the reasoning and conclusions therein.
The dismissal of the Appellant’s case by the trial Court was erroneous in the entire circumstances presented.
For the more detailed reasons in the lead judgment, I equally find merit in this appeal and I accordingly allow it.
I adopt the consequential order in the lead judgment.
Appearances:
A. J. Arong, Esq., U. F. Inah, Esq., A. J. Akobi, Esq. and G.T. Udofia, Esq.For Appellant(s)
Eyibio, Esq.For Respondent(s)
