IKWO ETIM VENTURES v. ESIMFAM (CHIEF) PATRICK AGBOR O. EDEM & ORS (2014)

IKWO ETIM VENTURES v. ESIMFAM (CHIEF) PATRICK AGBOR O. EDEM & ORS

(2014)LCN/6799(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of February, 2014

CA/C/209/2013

RATIO

WHETHER THE ISSUANCE AND SERVICE OF A WRIT OF SUMMONS IS A CONDITION PRECENT FOR THE EXERCISE OF JURISDICTION BY A COURT

WHETHER THE SERVICE OF ORIGINATING COURT PROCESS IS A CONDITION PRECENT FOR THE EXERCISE OF JURISDICTION BY A COURT

Service of originating court process is a condition precedent to the assumption of jurisdiction by the court. Where, therefore, the service of an originating process is not proper, a court of law will not have jurisdiction to entertain the matter before it. Umanah Vs. Attah (2006) 17 NWLR Pt 1009 page 503, Madukolu Vs. Nkemdilim (1962) 1 All NLR page 587, Skenconsult Vs. Ukey (1981) 1 SC page 6. Per UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

IKWO ETIM VENTURES Appellant(s)

AND

1. ESIMFAM (CHIEF) PATRICK AGBOR O. EDEM
2. HON. STEPHEN BASSEY
3. MRS. SYLVIA ETIM
4. SIR FRANCIS ANSA (KSM) (For themselves and on behalf of Kasuk Qua Clan, Calabar) Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Honourable Justice Adie Onyebueke of the High Court of Cross River State, sitting in Calabar, delivered on Thursday 16th May, 2013. Appellant’s application at the lower court to strike out the suit or set aside the Writ of Summons was struck out hence, this appeal.
The Respondents, herein as Claimants, at the lower court commenced Suit No. HC/434/2012 against Ikwo Etim and the Appellant herein claiming the following reliefs:
i) A Declaration that the Claimants are entitled to the Statutory Right of Occupancy over the land-in-dispute known to parties and shown in the pictures taken and further described as No. 92 Old Odukpani Road, which institute on or is the same as No. 33 Murtala Mohammed Highway, near Cross Lines Motor Park and also opposite Conoil Petrol Station, Calabar.
ii) An Order cancelling Defendant’s title, registration, leases, agreements and all other transactions entered into by the Defendant over the land in dispute without the consent and authority of the Claimants.
iii) An Order of perpetual injunction restraining, the Defendant, his agents or servants from further interfering or entering upon or dealing with the lands above in any manner whatsoever without the consent and authority of the Claimants.
iv) N50 million damages for trespass.
The 1st Defendant, Ikwo Etim, and the present Appellant contested the matter by the Motion on Notice challenging the jurisdiction of the lower court to entertain the suit.
The Motion was filed on 22nd of January, 2012. The Respondents filed their counter-affidavit to the motion on 1st of February, 2013. Adoption of addresses was on 23rd of April, 2013. On 16th of May, 2013, the trial court in its ruling struck out the name of the 1st Defendant, Ikwo Etim, from the suit and further held that “…service on the 2nd Defendant was proper service”. Dissatisfied with that ruling, the 2nd Defendant filed a Notice of Appeal with one ground on 22nd of May, 2013.
Appellant’s Counsel distilled one issue for determination thus:
Whether the serviced of the originating processes in this suit on a sales boy of a cement shop not owned by the Appellant amounts to proper service of the originating process on the Appellant?
On this issue, Counsel for the Appellant argued that the service of court processes on a sales boy of a cement shop was not proper service in accordance with the provisions of Order 12 Rule 9 of the Cross River State (Civil Procedure) Rules 2008.
He also contended that the cement shop was not owned by the Appellant though it shared the same premises with the Appellant’s advertised place of business.
There was also no responsible person at the premises known as no. 92, Old Odukpani road, Calabar and used as a business contact point by the Appellant. Counsel stated that a responsible person, as contemplated by the Cross River State (Civil Procedure) Rules, 2008 is one who can take decisions on behalf of the Appellant.
Counsel further stated that the issue of service of court process is a condition precedent to a court assuming jurisdiction to entertain a case.
The processes must be delivered to a proper person or officer of the company for service to be proper. Failure to comply with the prescribed mode of service rendered such service ineffective. See S.78 of Companies & Allied Matters Act Cap. 26 Laws of the Federation 2004.
Service of the originating processes on a sales boy who is not an officer of the Appellant renders such service invalid SOCIETE GENERALE BANK V. ADEWUNMI (2003) 14 NSCQR 119.
KISARI INVESTMENT LIMITED & ORS. V. LA-TERMINAL CO. LTD (2001) 16 NWLR (PT 739) 381.
Counsel concluded that where the law has prescribed the mode of service, non-compliance with that mode of service is fatal. See AMADI V. NNPC (2006) 6 S.C (PT 1) 66.
FCMB V. ABIOLA & SONS LTD (1991) 1 NWLR (PT. 165) 14.
Counsel urged the court to resolve this issue in favour of the Appellant, the Appeal be allowed and the service of the originating processes on the Appellant be set aside.
In response, the Respondents’ Counsel submitted that the issue arising for resolution is:
“Whether the trial court was right in holding service on the Appellant as proper service”.
Counsel stated that in compiling the record of appeal, the Appellant deliberately left out the proof of service which is the bone of contention. If produced, it will work against Appellant’s interest. See S.167(D) Evidence Act 2011.
Respondents’ Counsel submitted that the Appellant had admitted that it uses No. 92 Odukpani Road as its contact point. The fact that Appellant is in receipt of the processes served and is in court is a pointer to the fact that service was effected.
The trial Court was, therefore, right in disregarding the Appellant’s Affidavit as the. Appellant has not shown any credible evidence that the alleged sales boy served was not a responsible person as required by law. See AFRIBANK (NIG.) PLC V. YELWA (2011) 12 NWLR (PT. 1261) P.286 @ 305.
The presence of the Appellant in court is proof that service was on a responsible and proper person. The trial court was, therefore, right in holding that there was proper service.
Counsel further submitted that the Appellant has agreed that service of originating processes is to be in accordance with Sec. 78 (Companies Allied Matters Act) and consequently Order 12 Rule 9 of Cross River State High Court (Civil Procedure) Rules 2008. However, Appellant failed to produce its certificate of Incorporation as proof that service was not at its Head Office. See S. 167(D) EA 2011.
The Cross River State High Court (Civil Procedure) Rules 2008 allows processes to be left with a responsible officer at any place of business. Appellant in paragraph 5 of their affidavit on Page 8 of Record of Appeal agreed that the place of service on them is their advertised office.
Respondent’s Counsel contended that the main purpose of service is to put the other party on notice that there is a case against him and give him the opportunity to defend the matter. See NWANKWO V. KANU (2010) 6 NWLR (PT 1189) 62 @ 95 – 96.
The Appellant has appeared in court and cannot complain any more of improper service. Its presence is enough evidence of proper service. See NITEL V. ICIC (DIRECTORY PUBLISHERS) LTD (2009) 16 NWLR (PT. 1167) 356 @ 386.
Respondent’s counsel concluded by submitting that Appellant misunderstood S.241 & 242 of the 1999 Constitution which requires leave of court to be obtained to validate and sustain this appeal. There is nothing to show that leave was obtained.
The Appellant has also gone against the advice of superior courts that interlocutory appeals be discouraged. The same decisions can be appealed against at the conclusion of the hearing on merit. See OKOYE V. EMENIKE (2003) 3 NWLR (PT 806) 52.
Counsel stated that this entire appeal is incompetent and urged the court to resolve it in favour of the Respondents.
Appeal should be dismissed and the ruling of the lower court on 16th of May, 2013 affirmed.
The Appellant in its Reply Brief contended that all parties were present at the settlement of records. If the affidavit of service had any vital information, Respondents’ Counsel should have requested for its inclusion.
At no time did the Respondents refute that service of the originating processes was effected on a sales boy of a cement shop.
Counsel urges this court to invoke the provisions of S.147 Evident Act 2011 and hold that there is presumption of regularity of the record transmitted to this court from the lower court. See NGIGE V. OBI & ORS. (2006) 14 NWLR (PT. 999) 1. OKONZUA V. AMOSU (1992) 6 NWLR (PT.248) 216.
By S.147 & 167 Evident Act 2011 there is presumption that the record of proceedings compiled is correct. The burden is on the person denying its correctness to rebut it. See CHIME & ANOR. V. EZEA & ORS. (2009) NWLR (PT 1125) 263.
In response to Appellant’s appearance in court, Appellant’s Counsel stated that a conditional appearance was entered. Thereafter, the relevant application to set aside the service was filed. It cannot be said that a party whose counsel came to court to contest the validity of service was properly in court.
On the issue of obtaining leave of court, counsel contended that the Appellant’s appeal involves a question of law.
By S.241 of the 1999 Constitution, a Notice of Appeal which involves questions of law can validly be filed without the leave of any court. See EAST HORIZON GAS CO. LTD V. EFIOK (2012) ALL FWLR (PT. 605) 386. Counsel finally urged the court to strike out this suit ad set aside the writ of summons.
The only issue in this appeal is that of service of the court process on the Appellant.
“A writ of summons or any originating process must be properly served on the defendant. Without proper service, the defendant may not know that he has been sued, and will not know the claims against him. The object of the service of it process is to give notice to the defendant of the claims against him, so that he may be aware of and be able to resist, if he desires to, that which is claimed against him” Ajibola Vs Sogeke (2003) 9 NWLR Pt 826 Page 494, Ononye Vs. Chukwuma (2005) 17 NWLR Pt 953 page 90.

The issuance of a valid writ of summons and the service of that writ on a defendant in a case is a condition precedent for the exercise of jurisdiction by a court. Kida Vs Ogunmola (2006) 13 NWLR Pt.997 page 377, Ononye Vs. Chukwuma (2005) 17 NWLR Pt 953 page 90, Teno Eng. LTD Vs. Adisa (2005) 10 NWLR Pt 933 page 340.
Service of originating court process is a condition precedent to the assumption of jurisdiction by the court. Where, therefore, the service of an originating process is not proper, a court of law will not have jurisdiction to entertain the matter before it. Umanah Vs. Attah (2006) 17 NWLR Pt 1009 page 503, Madukolu Vs. Nkemdilim (1962) 1 All NLR page 587, Skenconsult Vs. Ukey (1981) 1 SC page 6.
The Appellant argued that, the service of the original writ was served on a sales boy in a cement company sharing the premises with them. Appellant’s counsel argued that the sales boy was not in their employ and that the office was not the 2nd Defendant’s/Appellant’s head office or registered office.
To find out what proper service on the defendant/Appellant is, one would have to refer to the Companies and Allied Matters Act (CAMA) S.78 which provides:
“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 by post to, the registered office or head office of the company”.
From, the above, it means that the rules of court has to provide the modalities for service of process. The rules of court, therefore, will be that of Cross River State High Court (Civil Procedure) rules 2008 where the action was inmitrated. The relevant order is, therefore, Order 12 Rule 9 which provides as follows:
In the absence of any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or other process requiring personal service may be served on the organization by delivery to a director, secretary, trustee or other senior, principal or responsible officer of the organization, or by leaving it with a responsible person at the registered, principal or advertised office or place of business or the organization.

With the above, service on the sales boy of a Cement Company is good service. It would be taken as provided in Order 12 Rule 9 to be service on a responsible person. The rules gave a list of whom the process can be served on for the Company. The rules provide inter alia.. ..
“Or by leaving it with a responsible person at the registered, principal or advertised office or place of business of the organization”
This last segment of the rules takes care of the service of process of the defendant/appellant. It appears, the makers of the rules had envisaged, the difficulties, a claimant would be facing trying to serve a process on a Company.
In the present case, the sales boy of a Cement Company, though not in the employ of the Defendant/Appellant, behaved responsibly. He delivered the process to the 2nd defendant/appellant. The rules were also all encompassing to take care of many difficulties in service of a Company. The process could be served in a number of places ie at the registered, principal or advertised office or place of business of the organization. In the present case, the process was served in a place of business of the organization.
The appellant argued that the process was delivered not at their headquarters or registered office. Also argued is that the process was not delivered at their head office but at No 92 Old Odukpani road which is an ordinary contact point for 2nd defendant to direct potential customers to its farm in Idebe Ikot Esu village.
Whatever, the Appellant might have called the premises, it would be taken that 2nd defendant is doing business in that premises.
Afterall what is important in service of process is that the defendant is aware that there is a law suit which he must answer to. The essence of service is to ensure that a party is put on notice of the pending litigation, and this can be achieved through a liaison office. Where service is effected in the liaison office, it is presumed that the service was properly effected. River State Govt Vs. Specialist Kunsult (2005) 7 NWLR Pt 923 page 145.
It would, therefore, be taken that, the service of process in No. 92 Old Odukpani Road, the office of the 2nd Defendant/Appellant is good service. The Appellant agreed that it received the process served through the sales boy who is taken as a responsible person.
The 2nd Defendant/Appellant never denied service, but his grouse was that service was not proper. The court therefore holds that the service on the Appellant was good service. The Appellant already knows what he is up against. He can then defend himself to the best of his ability.
The lone issue articulated by the Appellant has been resolved against him. This appeal is unmeritorious and therefore dismissed. The Appellant must go and file his statement of defence and defend the claim against it if it desires.
Cost of N50,000.00 in favour of the Respondents.

CHIMA CENTUS NWEZE, J.C.A.: My noble Lord, Uzo I. Ndukwe-Anyanwu JCA, obliged me with the draft of the leading judgment just delivered now. I agree with the reasoning and conclusion. I abide by the consequential orders in the said leading judgment.

ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading, in advance, the Judgment just delivered by my learned Brother, Ndukwe-Anyanwu JCA. I agree with the reasoning and the conclusions reached that this appeal is without merit. I will only make few comments on the issue of service of process on the Appellant, for emphasis.
Section 78 of Companies and Allied Matter Act, Laws of the Federation 2004 (CAMA) provides that:
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 company by leaving it at, or sending it by post to, the registered office or head office of the company.
In determining the proper mode of service of processes on a Company therefore, the relevant provisions for consideration are Section 78 of CAMA, and, and the Rules of Court. In this appeal, the relevant Rules are the Cross River State High Court (Civil Procedure) Rules, 2008.
Order 12 Rule 9 of the Cross River State High Court (Civil Procedure) Rules, 2008 (HCR, CRS) provides as follows.
In the absence of any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or other process requiring personal service may be served on the organization by delivery to a director, secretary, trustee or other senior, principal or responsible officer of the organization, or by leaving it with o responsible person at the registered, principal or advertised office or place of business of the organization.
Thus a combined effect of the provisions of Section 78 CAMA and Order 12 Rule 9 HCR, CRS provide the mode of service on a limited liability company in Cross River State.
See also the case of NEWSWATCH COMMUNICATION LTD VS ATTAH (2000) 2 NWLR (PT 646) 592 at 603-604, where this Court, per Musdapher JCA (as he then was) held thus:
“Now, under CAMA 1990 the service of Court processes by S.78 of the Act is to be effected in accordance with its domestic local provisions of each High Court. See NAB Ltd. v. Felly Keme Nig Ltd. (1995) 4 NWLR (Pt.387) 100. The intendment of Section 78 of CAMA is to improve service of Court processes on Companies or Corporations which hitherto had been cumbersome under the Companies Act 1968. See 7 Up Bottling Co. v. Abiola & Sons (1996) 7 NWLR (Pt.463) 714.”
The Appellant was duly served by leaving the processes with a responsible person at a place of business of the organization. The Appellant admitted receiving the processes. This service was proper service, and conferred jurisdiction on trial Court. I therefore hold that Appellant was properly served.
I abide by the Orders made in the lead Judgment, including the Order as to costs.

Appearances

A. A. Annah Esq.For Appellant

AND

Orok O. Ironbar Esq.For Respondent