LAGOS NURTW (FIRST BRT) COOPERATIVE SOCIETY LTD v. LAGBUS ASSET (MGT) LTD (2021)

LAGOS NURTW (FIRST BRT) COOPERATIVE SOCIETY LTD v. LAGBUS ASSET (MGT) LTD

(2021)LCN/14997(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, February 01, 2021

CA/L/989/2014

RATIO

JUDMENT: PROCEEDING UNDER THE SUMMARY JUDGMENT PROCEDURE

By way of necessary prelude, proceeding under the summary judgment procedure, as exemplified in the above provision, is resorted to where the claims are for only liquidated money demand: a sum that is arithmetically ascertainable without further investigation, see Maja v. Samouris (2002) 7 NWLR (Pt. 765) 78; Wema Sec. & Fin. PLC v. N.A.I.C (2015) 16 NWLR (Pt. 1484) 93; A.T.S. & Sons. v. B.E.C. (Nig) Ltd. (2018) 17 NWLR (Pt. 1647) 1. By its very nature, in summary judgment procedure, which houses undefended list procedure, judgments are given to plaintiffs without taking the defence of defendants, see Macaulay v NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt.144) 283. The purpose of such procedure is to enable a plaintiff to obtain summary judgment without trial where he has a patently clear and reasonable case. It is, however, not designed to shut out a defendant who can show a defence, see Okambah v. Sule (1990) 7 NWLR (Pt.160)/(1990) 11 SCNJ 1; Adebisi Macgregor Ass. Ltd vs. N.M.B Ltd. (1996) 2 NWLR (Pt.431) 378/ (1996) 2 SCNJ; Imoniyame Holdings Ltd vs. Soneb Ent. Ltd (2010) 4 NWLR (Pt. 1185) 561; FMG v. Sani (1990) 4 NWLR (Pt. 1477688); Nwankwo v. E.D.C.S.U.A (2007) 5 NWLR (Pt.1027) 377.
In such a proceeding, like the undefended list, a defendant is allowed to file a notice of intention to defend together with an affidavit disclosing a defence on the merit. A defendant’s affidavit must condescend upon particulars and deal specifically and frontally with a plaintiff’s claims and affidavit. It must state clearly what the defence is and whether it is against the whole or part of the claim without necessarily proving same. PER OBANDE FESTUS OGBUINYA, J.C.A.

COURT: PRIMARY DUTY OF A TRIAL COURT WHERE AN ACTION IS INSTITUTED

The primary duty of a trial Court, where an action is instituted, is to look at the affidavit with a view to deciphering if a defendant has shown a prima facie defence on the merit or triable issue. Where a defendant has, it transfers the matter to the ordinary/general cause list for hearing on pleadings. If a defendant does not, it shall give judgment to a plaintiff, see Nishizawa Ltd vs. Jethwani (1984) NSCC Vol. 15 877/(1984) 12 SC 234; Adebisi Macgregor vs. N.M.B Ltd. (supra); Macaulay v. NAL Merchant Bank Ltd. (supra) (2010) 14 NWLR (Pt. 1213) 169; NMCB (Nig) Ltd v. Obi (2010) 14 NWLR (pt. 1213) 169; Imoniyame Holdings Ltd v. Soneb Ent. Ltd. (supra) (2007) FNWLR (Pt. 1027) 377; Nwankwo E.D.C.S.U.A. (2007) 5 NWLR (Pt. 1027) 377; UBA Plc vs. Jargaba (2007) 11 NWLR (Pt. 1045) 247; UBN PLC. V. Awmar Properties Ltd. (2018) 10 NWLR (pt. 1626) 64; NPA v. Aminu Ibrahim & Co. (2018) 12 NWLR (Pt. 1632) 62; Intercontinental Bank Ltd. v. Brifina Ltd. (2012) 13 NWLR (Pt. 1316) 1; Wema Sec. & Fin. PLC v. N.A.I.C (supra); Amede v. UBA Plc (2018) 6 NWLR (pt. 1614) 29. PER OBANDE FESTUS OGBUINYA, J.C.A.

JURISDICTION: MEANING AND NATURE OF JURISDICTION

Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1;Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210;Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1. The case-law categorises/classifies jurisdiction into two facets, videlicet: procedural jurisdiction and substantive jurisdiction. In Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 219, Edozie, JSC, incisively and graphically, declared:
It is noteworthy that a distinction must always be drawn between two types of jurisdiction viz – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst the litigant can waive the former, no litigant can confer jurisdiction in the Court where the Constitution or a statute or any provision of the common law says that the Court shall have no jurisdiction. A litigant may submit to procedural jurisdiction of the Court e.g. where a writ has been served outside jurisdiction without leave.
See, also, A. – G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142; Oko v. State (2017) 17 NWLR (Pt. 1593) 24; Zakirai v. Muhammad (2017) 17 NWLR (Pt. 1594) 181; Kurma v. Sauwa (2019) 3 NWLR (Pt. 1659) 247; BPE v. Dangote Cement Plc. (2020) 5 NWLR (Pt. 1717) 291. PER OBANDE FESTUS OGBUINYA, J.C.A.
JURISDICTION: SOURCE OF JURISDICTION

The High Court Rules, which warehouse the provision of Order 11 Rule 1, that is allegedly infracted fall within the commodious domain of subsidiary enactments, see Section 37 of the Interpretation Act, Cap I 23, Laws of the Federation of Nigeria, 2004; Unilag v. Aigoro (1984) 15 NSCC 745; Agip (Nig.) Ltd. v. Agip Petroli Int’l (2010) 5 NWLR (Pt. 1187) 34; Oyegun v. Nzeribe (2010) 7 NWLR (Pt. 1194) 577; G.M.O.N. & Sons Co. Ltd. v. Akputa (2010) 9 NWLR (Pt. 1200) 143. They do not bestow jurisdiction on a Court of law. Source of jurisdiction of Court is statutory.

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

LAGOS NURTW (FIRST BRT) COOPERATIVE SOCIETY LIMITED APPELANT(S)

And

LAGBUS ASSET MANAGEMENT LIMITED RESPONDENT(S)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision (ruling) of the High Court of Lagos State, holden in Ikeja (hereinafter addressed as “the lower Court), coram judice: K.O. Dawodu, J., in Suit No. ID/1011/2012, delivered on 14th May, 2014. Before the lower Court, the appellant and the respondent were the defendant and the claimant respectively.

The facts of the case, which transfigured into the appeal, are amenable to brevity and simplicity. Sometime in 2008, there was an unwritten bus lease contract between the respondent, a registered agency of the Lagos State Government, and the appellant, a registered Association/Cooperative Society, to operative bus under the BRT scheme midwifed by the Lagos State Government to provide modern mass transportation services to commuters on segregated lanes. In that contract, the respondent leased the 120 Marcopolo Torino Buses (in two batches of 70 and 50) at a monthly rental of N300,000.00 to the appellant. The appellant paid some rentals. Later on, there was a disagreement between the parties over the rentals to be paid and the quality of

the last batches of 50 buses. Certain persons/bodies intervened in the dispute. The respondent alleged that after the reconciliation of account, the appellant owed it the sum of N194,181,600 Million which it refused to pay. Sequel to that, the respondent beseeched the lower Court, via a writ of summons filed on 25th September, 2012, and tabled against the appellant the payment of the said sum of N194,181,600 Million and interest thereon.

Subsequently, the respondent filed an application for summary judgment on 18th March, 2013. The application was heard after several adjournments. In a considered judgment, delivered on 27th May, 2013, found at pages 458-463 of the main record, the lower Court granted the respondent’s claim. On 26th June, 2013, the appellant filed an application, before the lower Court, to have the judgment, the writ of summons and other processes set aside. The respondent joined issue with the appellant in the application by filing a counter-affidavit. The application was duly heard. In a considered ruling, delivered on 14th May, 2014, reflected at pages 468-476 of the main record, the lower Court dismissed the application.

The appellant was dissatisfied with the decision. Hence, on 4th July, 2014, the appellant lodged a 4-ground notice of appeal, copied at pages 477-480 of the main record, wherein it prayed this Court as follows:
To allow this appeal, by setting aside the judgment of the lower Court dated 27th May 2013 entered in favour of the Respondent in the absence of the Appellant and remit this matter back to Lagos State High Court for trial before another judge.
Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 9th November, 2020.

During its hearing, learned counsel for the appellant, G.A. Bello, Esq., adopted the appellant’s brief of argument, filed on 13th December, 2016 but deemed properly filed on 9th November, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, Said Sanusi, Esq., adopted the respondent’s brief of argument, filed on 7th June, 2017 but deemed properly filed on 9th November, 2020, as forming

his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned counsel distilled two issues for determination to wit:
1. Whether in the circumstances of this case, the Lower Court ought to have set aside the Summary Judgment dated 27th May, 2013 granted in favour of the Respondent for lack of jurisdiction to entertain the Motion on Notice dated 18th March, 2013.
2. Whether the originating processes and other processes in this matter were properly served on the Appellant such as to clothe the Lower Court with jurisdictions to entertain this matter particularly the Motion for Judgment dated 18th March, 2013.

In the respondent’s brief of argument, learned counsel crafted two issues for determination, viz:
i. Whether the Summary Judgment entered in favour of the Claimant on 27th May, 2013 pursuant to application brought under Order 11 of High Court of Lagos State (Civil Procedure) Rules, 2012 breached the Law or occasion miscarriage of justice to the Applicant to warrant its setting aside.
ii. Whether the Sheriff of this Honourable Court improperly effected service of the

Writ of Summons and other originating processes filed in this suit on the Defendant/Appellant such that the processes are liable to be set aside.

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent’s issues can be, conveniently, subsumed under the appellant’s. In view of this sameness, I will decide the appeal on the issues nominated by the appellant: the undoubted owner of the appeal.

Arguments on the issues:
Issue one.
Learned appellant’s counsel submitted that the lower Court had the inherent jurisdiction to set aside its judgment. He relied onKhalid v. Al-Nasim Travels & Tours Ltd. (2014) LPELR-22331 (CA); Noga Hotels Int. S.A v. NICON Hilton Hotels Ltd. (2006) LPELR-1181 (CA). He stated that the lower Court had no jurisdiction to try the case because Order 11 of the Lagos State High Court (Civil Procedure) Rules, 2012 (the High Court Rules) was not the proper order for the judgment because the respondent’s application was not filed along with the writ and there was no defence filed. He emphasised the importance of jurisdiction. He cited Ohakim v. Agbaso

(2010) LPELR-2359 (SC). He maintained that the lower Court ought to have set aside its judgment for lack of jurisdiction. He reasoned that Order 11 of the High Court Rules should be given its literal meaning. He referred to Okafor v. Okafor (2014) LPELR-2356 (CA). He claimed that the lower Court wrongly avoided considering the issue of jurisdiction argued by the parties. He urged the Court to consider the issue in favour of the appellant under Section 15 of the Court of Appeal Act.

On behalf of the respondent, learned counsel contended that Order 11 of the High Court Rules used the word “may” so that it was not mandatory for the respondent to file the application with the writ. He relied on Abah v. Monday (2015) 1 NWLR (Pt. 1480) 569; B.A.T Invest. Ltd. v. A-G., Lagos State (2014) 16 NWLR (Pt. 1433) 260; Nnabude v. G.N.G.C (W/A) Ltd. (2015) 15 NWLR (Pt. 1216) 365. He noted that the Order 20 Rule 1 of the High Court Rules was not the appropriate provision. He reasoned that Order 11 agreed with the preamble of the High Court Rules. He opined that while judgment under Order 20 amounted to judgment on default of defence, that under Order 11

amounted to judgment on the merit which could only be set aside on appeal. He citedIfeanyichukwu T.I.V. Ltd. v. O.C.B. Ltd. (2015) 17 NWLR (Pt. 1487) 1. He urged the Court to give literal construction to Order 11. He referred to Ikechukwu v. Nwoye (2015) 3 NWLR (Pt. 1446) 367.He observed that the appellant failed in its obligation to file defence as provided in Order 11 Rule 4 of the High Court Rules. He maintained that the appellant’s failure to file its defence, despite service of processes on it, amounted to waiver of the right to defend the action. He cited Ifeanyichukwu T.I.V. Ltd. v. O.C.B. Ltd (supra)

Issue two.
Learned appellant’s counsel contended that where the writ and other processes were not served on a party, the Court would not have jurisdiction to hear the case. He relied on National Assembly v. C.C.I Co. Ltd. (2007) 5 NWLR (Pt. 1081) 579. He stated that there was improper service of the originating processes on the appellant as it had no office known as “State Secretary” whose personal assistant was served. He asserted that the hearing notice of 14th February, 2013 for the 5th March, 2013 fixture of the case

was not received by the appellant. He took the view that any Court process served contrary to the provision of statute is void and deprives the Court of the jurisdiction to hear the case. He cited Agbebaku v. State (2014) LPELR-22134 (CA); Amadi v. NNPC (2000) 6 SC (Pt. 1) 66; Oyun LG. v. Amalgamated Building Society Ltd. (2006) All FWLR (Pt. 334) 1983. He posited that non-service of Court process would led to setting aside a decision. He referred to Mark v. Eke (2004) LPELR-1841 (SC).

For the respondent, learned counsel argued that the service of the processes at the respondent’s office, No. 30 Abeokuta Expressway, Abule-Egba, Lagos, on its secretary was proper in law. He relied on N.B.C. Plc v. Ubani (2009) 3 NWLR (Pt. 1129) 512, N.B.C Plc v. Ubani (2014) 4 NWLR (Pt. 1398) 421; Tony Anthony (Nig.) Ltd. v. N.D.I.C. (2011) 15 NWLR (Pt. 1269) 39; Wema bank Plc v. Brastem-Sterr (Nig.) Ltd. (2011) 6 NWLR (Pt. 1242) 58; Order 7 Rule 9 of the High Court Rules. He persisted that the appellant was duly served with the processes. He relied on exhibits CAJ 1, 2, 3, 4, 5, 9 and 10 and the entry of appearance filed by the appellant. He asserted that a party

that was serviced with processes but deliberately failed to respond to Court’s summons would not complain of denial of fair hearing. He cited Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423; Ogunsanya v. State (2011) 12 NWLR (Pt. 1261) 401; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 489; Oguntayo v. Adelaja (2009) 15 NWLR (Pt. 1163) 150; J.O.E. Co. Ltd. v. Skye Bank Plc (2009) 6 NWLR (Pt. 1138) 518. He reasoned that service of Court processes as done on the appellant, was justified in law and by the rules of Court. He referred to Okoye v. CPMB Ltd. (2008) 15 NWLR (Pt. 1110) 335.

Resolution of the issues
For the sake of orderliness, I will attend to the two issues sequentially. This is more so as both fall within the wide four walls of jurisdiction which is numero uno in adjudication. To this end, I will kick off with the treatment of issue one. The meat of the issue is simple. It chastises the lower Court’s failure to set aside its decision of 27th May, 2013, mothered by the respondent’s application for summary judgment of 18th March, 2013 which was not filed in conformity with the law.

Incontestably, the

appellant’s grouse orbits around non-compliance with defilement of the provision of Order 11 Rule 1 of the High Court Rules. Due to its olympian position herein, as the cynosure of the issue, it is imperative to pluck it out, whence it is domiciled in the Rules, ipsissima verba, as follows:
1. Where a Claimant believes that there is no defence to his claim, he may file with his Originating Process, the Statement of Claim, list of documents to be relied upon, the depositions of his witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief, and a written brief in respect thereof.
By way of necessary prelude, proceeding under the summary judgment procedure, as exemplified in the above provision, is resorted to where the claims are for only liquidated money demand: a sum that is arithmetically ascertainable without further investigation, see Maja v. Samouris (2002) 7 NWLR (Pt. 765) 78; Wema Sec. & Fin. PLC v. N.A.I.C (2015) 16 NWLR (Pt. 1484) 93; A.T.S. & Sons. v. B.E.C. (Nig) Ltd. (2018) 17 NWLR (Pt. 1647) 1. By its very nature, in summary judgment procedure,

which houses undefended list procedure, judgments are given to plaintiffs without taking the defence of defendants, see Macaulay v NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt.144) 283. The purpose of such procedure is to enable a plaintiff to obtain summary judgment without trial where he has a patently clear and reasonable case. It is, however, not designed to shut out a defendant who can show a defence, see Okambah v. Sule (1990) 7 NWLR (Pt.160)/(1990) 11 SCNJ 1; Adebisi Macgregor Ass. Ltd vs. N.M.B Ltd. (1996) 2 NWLR (Pt.431) 378/ (1996) 2 SCNJ; Imoniyame Holdings Ltd vs. Soneb Ent. Ltd (2010) 4 NWLR (Pt. 1185) 561; FMG v. Sani (1990) 4 NWLR (Pt. 1477688); Nwankwo v. E.D.C.S.U.A (2007) 5 NWLR (Pt.1027) 377.
In such a proceeding, like the undefended list, a defendant is allowed to file a notice of intention to defend together with an affidavit disclosing a defence on the merit. A defendant’s affidavit must condescend upon particulars and deal specifically and frontally with a plaintiff’s claims and affidavit. It must state clearly what the defence is and whether it is against the whole or part of the claim without necessarily proving same. The

primary duty of a trial Court, where an action is instituted, is to look at the affidavit with a view to deciphering if a defendant has shown a prima facie defence on the merit or triable issue. Where a defendant has, it transfers the matter to the ordinary/general cause list for hearing on pleadings. If a defendant does not, it shall give judgment to a plaintiff, see Nishizawa Ltd vs. Jethwani (1984) NSCC Vol. 15 877/(1984) 12 SC 234; Adebisi Macgregor vs. N.M.B Ltd. (supra); Macaulay v. NAL Merchant Bank Ltd. (supra) (2010) 14 NWLR (Pt. 1213) 169; NMCB (Nig) Ltd v. Obi (2010) 14 NWLR (pt. 1213) 169; Imoniyame Holdings Ltd v. Soneb Ent. Ltd. (supra) (2007) FNWLR (Pt. 1027) 377; Nwankwo E.D.C.S.U.A. (2007) 5 NWLR (Pt. 1027) 377; UBA Plc vs. Jargaba (2007) 11 NWLR (Pt. 1045) 247; UBN PLC. V. Awmar Properties Ltd. (2018) 10 NWLR (pt. 1626) 64; NPA v. Aminu Ibrahim & Co. (2018) 12 NWLR (Pt. 1632) 62; Intercontinental Bank Ltd. v. Brifina Ltd. (2012) 13 NWLR (Pt. 1316) 1; Wema Sec. & Fin. PLC v. N.A.I.C (supra); Amede v. UBA Plc (2018) 6 NWLR (pt. 1614) 29.

Now, the gravamen of the appellant’s chief grievance, indeed its trump card on the issue, is

that respondent’s application for summary judgment, which sired the lower Court’s decision that ignited the appellant’s application that parented the appeal, did not accompany the originating process filed on 25th September, 2012 as ordained/decreed by the provision of Order 11 Rule 1 of the High Court Rules displayed above.
The appellant’s foremost grudge is that the respondent’s failure/neglect to file its application for summary judgment alongside the originating process, the writ of summons, drained the lower Court of the jurisdiction to entertain it, a fortiori its grant of judgment in favour of the respondent.
Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1;Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210;Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175;

Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1. The case-law categorises/classifies jurisdiction into two facets, videlicet: procedural jurisdiction and substantive jurisdiction. In Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 219, Edozie, JSC, incisively and graphically, declared:
It is noteworthy that a distinction must always be drawn between two types of jurisdiction viz – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst the litigant can waive the former, no litigant can confer jurisdiction in the Court where the Constitution or a statute or any provision of the common law says that the Court shall have no jurisdiction. A litigant may submit to procedural jurisdiction of the Court e.g. where a writ has been served outside jurisdiction without leave.
See, also, A. – G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142; Oko v. State (2017) 17 NWLR (Pt. 1593) 24; Zakirai v. Muhammad (2017) 17 NWLR (Pt. 1594) 181; Kurma v. Sauwa (2019) 3 NWLR (Pt. 1659) 247; BPE v. Dangote Cement Plc. (2020) 5 NWLR (Pt. 1717) 291.
Flowing from this

magisterial pronouncement, in the ex cathedra authority, it is my view that a party’s (claimant’s) failure to file an application for summary judgment along with the originating process, writ of summons, resides within the perimeter of procedural jurisdiction which is submissive to acquiescence/waiver by an adversary or, at best, a curable irregularity. In other words, such a failure has no romance with substantive jurisdiction, usually donated to the Court by substantive statutes, the Constitution and other legislations, that is rebellious to waiver/acquiescence by an opponent. The High Court Rules, which warehouse the provision of Order 11 Rule 1, that is allegedly infracted fall within the commodious domain of subsidiary enactments, see Section 37 of the Interpretation Act, Cap I 23, Laws of the Federation of Nigeria, 2004; Unilag v. Aigoro (1984) 15 NSCC 745; Agip (Nig.) Ltd. v. Agip Petroli Int’l (2010) 5 NWLR (Pt. 1187) 34; Oyegun v. Nzeribe (2010) 7 NWLR (Pt. 1194) 577; G.M.O.N. & Sons Co. Ltd. v. Akputa (2010) 9 NWLR (Pt. 1200) 143. They do not bestow jurisdiction on a Court of law. Source of jurisdiction of Court is statutory.

It is the Constitution and legislations that do, see Dada v. Ogunremi (1962) 2 SCNLR 417; State v. Onagoruwa (1992) 2 SCNJ (Pt. 1) 1; Afribank (Nig.) Plc. v. Akwara (2006) 5 NWLR (Pt. 974) 619; Onuorah v. KRPC Ltd. (2005) 6 NWLR (Pt. 921) 393; Mailantarki v. Tongo (2018) 6 NWLR (Pt. 1614) 69; Mainstreet Bank Capital Ltd. v. Nig RE (2018) 14 NWLR (Pt. 1640) 423; Nduul v. Wayo (supra); Okorocha v. UBA Plc (2018) 17 NWLR (Pt. 1649) 441; APC v. Umar (2019) 8 NWLR (Pt. 1675) 564. Since the alleged faux pas, respondent’s failure to make its application for summary judgment a companion/appendage of the writ of summons, roams within the firmament of procedural jurisdiction, the lower Court was not disrobed of the requisite jurisdiction to entertain the application. The appellant’s counsel’s scintillating argument on this seemingly terminal point, with due reverence, is disabled from birth. It cannot fly!

That is not all. I have given a microscopic examination to the terse provision. Interestingly, the provision is comprehension-friendly. To this end, the law commands the Court to employ the literal rule on its interpretation, id est, to accord

it its ordinary grammatical meaning without any embellishments, see Berliet v. Kachalla (1995) 12 SCNJ 147, Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt.1224) 154; Kraus Thompson Org. Ltd. v. NIPSS (2003) NWLR (Pt.901); Uwazurike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035)1; Branco v. Wemabod Estate Ltd. (2011) 6 NWLR (Pt. 1243) 378; Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. I will pay due fidelity to this legal commandment, in the construction of the provision, in order not to insult the law.
It admits of no argument that the draftsman of the provision employed the word “may” vis a vis the filing of an application for summary judgment. It is an accepted principle of interpretation of statutes that the use of the word “may”, a modal verb, generally denotes directory or permissive action. However, the hallowed principle of law is inflexible. Its elasticity is located in the interchange/exchange of its connotation with the word “shall” that usually signifies mandatoriness or compulsiveness. Put differently, the word “may” mutates its connotations in law. At times it maintains its ordinary meaning of

being directory. At other times, it sheds/disowns it and acquires obligatory action depending on circumstances, see Ifezue v. Mbadugha (1984) 1 SCNLR 427; Okonkwo v. U.B.A. Plc (2011) 16 NWLR (Pt. 1274) 614; Cont. Res. (Nig.) Ltd. v. U.B.A. Plc (2011) 16 NWLR (Pt. 1274) 592; Ugwanyi v. FRN (2012) 8 NWLR (Pt. 1302) 384; Nigerian Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569; Nyesom v. Peterside (2016) 1 NWLR (Pt. 1492) 71; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Wada v. Bello (2016) 17 NWLR (Pt. 1542) 374; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; Mohammed v. State (2018) 5 NWLR (Pt. 1613) 540; Sule v. State (2018) 10 NWLR (Pt. 1628) 545; Malami v. Ohikhuare (2019) 7 NWLR (Pt. 1670) 132; Amah v. FRN (2019) 6 NWLR (Pt. 1667) 160; Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36.
Interestingly, the litmus test to be employed by the Court to gauge which provision is mandatory or directory was, graphically, captured by Ogundare, JSC, in Odua Investiment Co. Ltd. v. Talabi (1997) 7 SCNJ 600, at 652-853, in these illuminating words:
The difficulty has always been to determine what is mandatory or

obligatory….A statutory provision may be mandatory in one part and directory in another part. Example of this is Section 258 (1) of our 1979 Constitution….It is the law here in Nigeria as well in England that if an object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person then the provisions of the statute are directory not mandatory.
I will be guided by this parameter, as a barometer, in the settlement of this issue.
I have, in due loyalty to the desire of the law, married the provision of Order 11 Rule 1 of the High Court Rules with the amphibious purports of the word “may” deployed therein. The raison d’etre for the juxtaposition is not far-fetched. It is to ascertain if it (may) wears/bears the import of directory or mandatory significance. To begin with, going by the phraseology and tenor of the Order 11 Rule 1 of the High Court Rules, the right to file an application for summary judgment with the writ of summons is domestic/personal to it and submissive to waiver by it, see F & F Farms (Nig) Ltd. V. NNPC (2009) 12 NWLR (Pt. 1155) 387;

Nnonye V. Anyichie (2005) 2 NWLR (Pt. 910) 633. In the Latin days of the law, waiver of personal right was encapsulated in the maxim: Quilibet potest renunciare juri pro se introducto- an individual may renounce a law made for his special benefit.
It is decipherable from the provision, Order 11 Rule 1, that a claimant reserves the right, on the footing of his belief in the want of defence in an opponent, to file an application for summary judgment in order to harness his claims without the rigours of trial. Put simply, a claimant, such as the respondent, owns the option to file the application concurrently with the writ of summons in which case he will reap his rights quickly in the temple of justice. The claimant, in his infinite wisdom, can elect to not file the application contemporaneously with the writ of summons in which case his right to tap from the beneficient procedure of summary judgment will be in incubation until he activates/stimulates it with an application. The appellant embraced the latter option which is concretised by the right allotted to it in the provision of Order 20 Rule 1. It stems from the presence of these two options that the word

“may”, deployed by the lawmaker in the provision of Order 11 Rule 1, is used in the permissive/directory sense, not in the compulsive sense. It does not task/impose a mandatory duty on a claimant, like the respondent, to willy-nilly file an application for summary judgment conjunctively with the writ of summons. It follows that the respondent did not fracture the provision, when, on its own volition, it filed its application for summary judgment subsequent to the filing of the writ of summons. In effect, all the diatribes, which the appellant heaped on the lower Court’s exercise of jurisdiction over the respondent’s application, pale into insignificance. It does not disclose any hostility with the law to warrant intervention via the appellant’s application to set aside the lower Court’s judgment.
For the sake of ex abundanti cautela, I will invite the provision of Order 5 Rule 1(2) of the High Court Rules. For its importance, I will extract it, where it is ingrained in the Rules, verbatim ac litteratim, thus:
(2) Where at any stage in the course of or in connection with any proceedings there has by reason of

anything done or left undone been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularise such steps.
The provision, which harbours no ambiguity, enjoins the Court, in the interest of justice, to waive a party’s blunders/non-compliance with the requirements of the High Court Rules as to time, place, manner or form and consign the same to the province of irregularity. Thus, the provision constitutes an inbuilt safeguard aimed to douse the caustic effects of non-compliance with some provisions of the Rules. It is axiomatic, that the provision bestows on this Court the discretionary power to treat wide range of failures to conform to the Rules as an irregularity, see Dingyadi v. INEC (no. 1) (2010) 18 NWLR (Pt. 1224) 1; Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) 134; Michael v. BON (2015) 12 NWLR (Pt.1473) 370; Gov., Zamfara State v. Gyalange (2013) 8 (NWLR) (Pt. 1357) 462). Famfa Oil Ltd. v. A.-G., Fed. (2003) 18 NWLR (Pt. 852) 453; N.B.C. Plc. v. Ubani

(2014) 4 NWLR (Pt. 1398) 421; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Lafferi (Nig.) Ltd. v. NAL Merchant Bank Plc(2015) 14 NWLR (Pt. 1478) 68; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 52; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) 91; KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (Pt. 1601) 473. I, therefore, take umbrage under the saving provision to salvage the application and crown it with the toga of validity.
It must be placed on record, apace, that the rules of Court are handmaids of the law and, ipso facto, cannot lord it over the law. Their mission is to assist and facilitate the administration of justice by lubricating its stringent procedures. In this wise, their object is displaced when they are employed as hiccups along the thorny, rigorious and undulating terrain for quick attainment of justice. That will dethrone their aim in the wheel of administration of justice. On this score, I dishonour the appellant’s salivating invitation to crucify the lower Court’s decision of adjudication of the respondent’s application on the undeserved altar of being posterior to the filing of the writ of summons. It will smack of

judicial sacrilege to tinker with a judicial action that discloses no hostility with the law. In the end, I have no option than to resolve the issue one against the appellant and in favour of the respondent.

Having dispensed with issue one, I proceed to settle issue two. The marrow of the issue is plain and canalised within a narrow compass. It castigates the lower Court’s entertainment of the respondent’s action and application for summary judgment in the face of non-service of the originating process, other processes and hearing notices on the appellant. It is a summon on this Court to examine the essentiality of service of Court process and the dire consequences of non-service on a party.
By way of necessary prefatory remarks, Nigeria operates an adversarial system of adjudication in which service of Court process on a party to a proceeding is fundamental. It is service of process that infuses a Court with the jurisdiction to entertain a matter. It enables a party to appear before a Court without being ambushed. Service of process is sine qua non for hearing of any matter in a Court of law in that it vests Courts with jurisdiction. It

is required in all proceedings save those initiated via ex parte applications. Where service of process is required and there is failure to do so, the order germinating from the proceeding is a nullity and the party affected is entitled ex debito justitiae to have it set aside, see SGBN Ltd. v. Adewunmi (2003) 10 NWLR (Pt. 829) 529;Mark v. Eke (2004) 16 WRN 57/ (2004) 5 NWLR (Pt. 865) 54; Tsokwa Motors (Nig.) Ltd. v. UBA Plc. (2008) 2 NWLR (Pt. 1071) 347;Otu v. ACB Int’l Bank Plc. (2008) 3 NWLR (Pt. 1073) 179; Okoye v. CPMB Ltd. (2008) 15 NWLR (Pt. 1110) 335; C.G.G. (Nig.) Ltd. V. Aminu (2015) 7 NWLR (Pt. 1459) 577; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59 (supra); Ihedioha v. Okorocha (2016) 1 NWLR (Pt. 1492) 147; Apeh v. P.D.P (2016) 7 NWLR (Pt. 1510) 153; Nwadiogbu v. A.I.R.B.D.A. (2010) 19 NWLR (Pt. 1226) 364; Uzodinma v. Izunaso (No.2) (2011) 17 NWLR (Pt. 1275) 30; Estate of Late Chief H.I.S. Idisi v. Ecodril (Nig) Ltd. (2016) 12 NWLR (Pt. 1527) 355; B.B. Apugo & Sons Ltd. v. O.H.M.B (2016) 13 NWLR (Pt. 1529) 206; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577) 410; Regd. Trustees, P.C.N v. Etim (2017) 13 NWLR (Pt. 1581) 1; Zakirai v. Muhammed

(2017) 17 NWLR (Pt. 1594) 181; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; Adegbola v. Osiyi (2018) 4 NWLR (Pt. 1608) 1; Ezim v. Menakaya (2018) 9 NWLR (Pt. 1623) 113; Fidelity Bank Plc v. The M.T. “Tabora” (2018) 12 NWLR (Pt. 1632) 135; Okeke v. Lawal (2018) 12 NWLR (Pt. 1634) 393; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548; Onwubuya v. Ikegbunam (2019) 16 NWLR (Pt. 1697) 94.

In the same vein, service of hearing notice, the means and procedure to compel a party to appear in Court, is imperative in adjudication. Hearing notice is a document, which is issued from the Court registry, which gives legal notification to parties in a suit the dates on which it would be heard, see Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 157) 480. Service of hearing notice on a truant party ignites the jurisdiction of a Court over a matter. Where it is necessary to serve hearing notice, but it is not effected on a party, the Court will be robbed/drained of the vires to try or continue to hear an action and any orders flowing from it will be enmeshed in and vitiated by nullity, see John Andy Sons & Co. Ltd. V. Mfon (2007) 4 WRN 173; Mbadinuju v. Ezuka (1994)

10 SCNJ 109; Nasco Mgt. Service Ltd. v. A. N. Amaku Trans Ltd. (2003) 2 NWLR (Pt. 804) 290; Mpama v. FBN Plc.(2013) 5 WLR (Pt. 1346) 177; S & D Const. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487;Apeh v. PDP (supra); NACB Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Ugo v. Ummuna (2018) 2 NWLR (Pt. 1602) 102; Ezim v. Menakaya (supra); ENL Consortium Ltd. v. S.S. (Nig.) Ltd. (2018) 11 NWLR (Pt. 1630) 315; Achuzia v. Ogbomah (supra); NUT, Taraba State v. Habu (2018) 15 NWLR (Pt. 1642) 381.

Now, the main anchor of the appellant’s grouch is that none of the processes or hearing notices was served on it in the manner mandated by the law. I have, in due allegiance to the dictate of the law, consulted the record: the spinal cord of every appeal. My ports of call are the residences of the various affidavits of service which monopolise pages 409, 411, 413 and 415 of the main record. They are replicated and colonise pages 6, 8, 10 and 12 of the additional record. At the foot/bottom of all of them, a bailiff/sheriff of the lower Court signed them. It is trite elementary law that the best evidence of proof of service of Court process is by dint of

affidavit of service sworn to by a bailiff/sheriff of Court, or any server of it, specifying: the time, place, date and mode of service, see Val Petroleum Inc. v. Momah (2013) 14 NWLR (Pt. 1374) 284; Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274; Estate of Late Chief H.I.S. Idisi v. Ecodril (2016) 12 NWLR (Pt. 1527) 355; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577) 410; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Onwubuya v. Ikegbunam (2019) 16 NWLR (Pt. 1697) 94; C.M.& E.S. Ltd. v. Pazan Services (Nig.) Ltd. (2020) 1 NWLR (Pt. 1704) 70.
I have given a clinical scrutiny to all the affidavits of service. Each showcases the date, time, place and mode of service denoting/indicating when, who, what and where it was served. In the eyes of the law, to disproof the service, as housed and evidenced in those affidavits of service, the law commands an opponent, who disputes the service, to file affidavit to counter it, see Ahmed v. Ahmed (supra). Curiously, the appellant, in its infinite wisdom, starved this Court of any tinge of evidence, vide affidavit, to neutralise/demolish the effervescence of those affidavits of service. The dismal

consequence of want of disproof, on the part of the appellant, is not far-fetched. It implies that the appellant failed woefully to discharge the onus probandi, which the law saddled it with, to disproof the efficacy of the contents of those affidavits of service furnished before the lower Court by the bailiff/sheriff in favour of the respondent. In that regard, they acquired the enviable status of unchallenged affidavit of service. On this premise, the lower Court did not transgress the law when it relied on them as concrete/pungent evidence of service of the originating process, other processes and hearing notices on the appellant. I endorse, in toto, the judicial exercise which disclosed no enmity with the law.
For the sake of completeness, the provision of Section 78 of the Companies and Allied Matters Act, Cap. C20, Laws of the Federation of Nigeria, 2004 (CAMA) donates to the Rules of Court the manner of service of Court process on a company; seeN.B.C. Plc v. Ubani (2014) 4 NWLR (Pt. 1398) 421. By virtue of the prescription of Order 7 Rule 9 of the High Court Rules, originating process or other processes may be served on company, corporation or

body corporate by delivery to its Director, Secretary, Trustee, other senior, principal or responsible officer or by leaving it at its registered, principal or advertised office or place of business within the jurisdiction. In the pre-action correspondence between the feuding parties, the respondent disclosed No. 360 Abeokuta Expressway, Upper Bus Stop, Abule Egba, Lagos State as its advertised office or place of business. The affidavit of service, amply, revealed that service of those processes were effected on the appellant at that address. The service was on its secretary. The hearing notices were served by dropping at the same address. By dropping a process is equivalent to leaving it at a designated address. The law sanctions the mode of dropping a process as a valid method of service, see Okoye v. C.P.M.B. Ltd. (2008) 15 NWLR (Pt. 1110) 335. In essence, all the requirements of the provision of Order 20 Rule 1, vis-a-vis service of the processes on the appellant, were duly satisfied; see N.B.C. Plc. v. Ubani (supra). In effect, all the defences, weaved by the appellant to castrate the legality of the lower Court’s entertainment of the

respondent’s application, are lame.

It stems from the foregoing, confirmation of service of the processes on the appellant, that it decided, out of its own volition, to waive the chances availed it to defend the respondent’s action. It was accorded equal treatment, opportunity and consideration with its opponent, the first respondent, in the hearing of the application. It must be underscored, that the duty of the Court is to provide the enabling and hospitable environment and grant feuding parties equal chance to present their cases. It is outside the duty of a Court to compel a party, served with a process, to attend Court. It is, to my mind, decipherable from the decision that the lower Court, in an unbiased manner, created a congenial atmosphere for the appellant to ventilate its grievances by proffering defences to the action and the application. It, however, toyed with the opportunity to its peril. In effect, the appellants’ inviolate right to fair hearing was not, in the least, fractured by the lower Court. It is, therefore, not available for it to harvest/harness from the sanctuary/vineyard of the beneficent provision of

Section 36(1) of the Constitution, as amended. In Adebayo v. A –G., Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 221 and 222 the Apex Court, per Tobi, JSC, admonished:
…The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.
This magisterial pronouncement, in the ex cathedra authority, with due respect, deflates and exposes the poverty of the learned appellants’ counsel’s salivating argument on the point.
In the light of this brief juridical survey, the lower Court’s decision, as it relates to the appellant’s application, is not guilty of the appellant’s pseudo-charge of breach of its right to fair hearing levelled against it. The appellant denied this Court of any justification

that will compel me to mow down the decision of the lower Court on the footing of lack of fair hearing. As a result, I have no choice than to resolve the issue two against the appellant and in favour of the respondent.

On the whole, having resolved the two issues against the appellant, the destiny of the appeal is obvious. It has no grain of merit and deserves the reserved penalty of dismissal. Consequently, I dismiss the appeal. I affirm the decision (ruling) of the lower Court delivered on 14th May, 2014. The parties shall bear their respective costs they incurred in the prosecution and defence of the doomed appeal.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and do not desire to add to, the decision of my learned brother, Obande Festus Ogbuinya, JCA, which I was privileged to read in draft.

I adopt the entire decision as mine, with nothing more to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read the draft of the judgment just delivered by my learned brother, Hon. Justice OBANDE FESTUS OGBUINYA, JCA wherein the appeal was dismissed for it lacks merit.

The reasoning expressed therein accord with mine

and I do not wish to add anything further.

I agree that the appeal lacks in merit and deserves to be dismissed, I too dismiss it.

I abide with the consequential order made as to cost.
The appeal is dismissed.

Appearances:

A. BELLO, ESQ. For Appellant(s)

SAID SANUSI, ESQ. For Respondent(s)