LOCAL GOVERNMENT SERVICE COMMISSION, EDO STATE v. MR. PATRICK A. ESAHAH
(2019)LCN/12620(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 21st day of May, 2019
CA/AK/147/2017
RATIO
SERVICE: WHETHER A COURT PROCESS CAN BE SERVED ON THE COMPANY
“I agree that service on the chairman constitutes proper service within the meaning of Section 78 of the Companies and Allied Matters Act, (CAMA 2004) which provides that A Court process shall be served on 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 it by post to the registered office or head office of the company.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
Juctice
MOHAMMED AMBI-USI DANJUMA Juctice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Juctice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Juctice of The Court of Appeal of Nigeria
Between
LOCAL GOVERNMENT SERVICE COMMISSION, EDO STATEAppellant(s)
AND
MR. PATRICK A. ESAHAHRespondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
This appeal is a reaction to the interlocutory Ruling of the National Industrial Court of Nigeria, sitting at its Akure Judicial Division in Suit No. NICN/AK/2016 in which the learned trial judge thereat on the 27th day of February 2017 had dismissed the Defendant/objectors preliminary objection to the competence of the suit and service thereof of processes and dismissing the said preliminary objection as lacking in merit. The trial judge had proceeded to direct that the trial proceeds to hearing, pleadings having been settled and filed.
Dissatisfied with the ruling of the trial Court, the Defendant/ preliminary objector now appellant herein made good his strongly held view in the opposition by filing a Notice of Appeal and upon a twin Grounds of appeal as manifest on pages 195 197 of the Record of Appeal.
The resume` of the facts precursing the Appeal herein have been lucidly captured in the summary of facts as indicated on pages 2 3 of the Respondents Brief of Argument dated 23rd May, 2018 and filed on the 24th May, 2018. I have read the Record of Appeal transmitted to this Court on 12th June, 2017; and so find the apt capture by the said narration of facts; I, therefore, adopt and reproduce with slight modifications only as I think necessary.
SUMMARY OF FACTS
The Respondent, as claimant by a complaint and statements of facts dated the 18th day of July, 2016 filed at the National Industrial Court sitting at Akure, had instituted an action against the Appellant/Defendant claiming inter alia, for a declaration that the purported dismissal of the Respondent/claimant as contained in the letter of the Appellant/Defendant dated 27th April, 2016 is illegal, null and void and of no effect.
The Respondent/Claimant had given as an Address for the service of Court processes on the Appellant, the Chairman Local Government Service Commission, Civil Service Building Sapele Road, Benin City, Edo State, as depicted on pages 1- 2 and of particularly page of the Record of Appeal hoisting the complaint.
The processes were signed for and collected by one Mr. C. O. Ogbomo Principal Executive Officer II of the Appellant/Defendant. Pricked by the circumstances and manner of the service of the writ of complaint, the Appellant herein as Defendant filed a Notice of Preliminary Objection dated 15th day of September, 2016 claiming inter alia, that the Respondent/Claimant failed to comply with the condition precedent with respect to the service of originating processes on the Defendant/Appellant in the manner provided in Section 153 of the Edo State Local Government Law, 2000 as Amended. The competence, validity and Jurisdiction of the Court to hear the suit on ground of improper service was there by raised.
For the avoidance of doubt, I reproduce herein under and verbatim literetim, the said Notice of Preliminary objection as contained on pages 179 180 of the Record of Appeal.
Here it goes:
take notice that this Honourable Court shall be moved on the the day of, 2016 at the hour of 9 0clock in the forenoon or so as thereafter as the counsel to the Defendant/Applicant may be heard praying this Honourable Court as follows:
GROUNDS UPON WHICH THIS OBJECTION IS BASED
1. The claimant failed to comply with the condition precedent with respect to the service of originating processes on the defendant as laid down in Section 153 of the Edo State Local Government Law 2000 as amended.
2. The originating processes in this case was not signed by an identifiable legal practitioner
3. That it cannot be ascertained who amongst the two lawyers whose name appear in the originating processes signed the process because the name of the counsel who signed, was not ticked, marked or asterisked as required by the provisions of the Legal Practitioners Act 2004.
4. That this Honourable Court embark on deductions on whether the claimant originating processes was signed by either of the counsel whose name appears in the processes or by another person or counsel.
5. That the address of service of the counsel who signed the writ or complaint is not shown in the writ or complaint as provided by law
6. This error inherent with these processes is fundamental and this suit cannot in the circumstances continue to be entertained in this Court as same robe this Honourable Court the requisite jurisdiction to hear same.
TAKE FURTHER NOTICE that the Defendant/Applicant shall at the hearing of this objection rely on the originating processes of the claimants.
The said preliminary objection, argued on points of law was dismissed per the Ruling contained on ages 188 194 of the Record. Hence this Appeal. In retaliation, in this apparently mutual battle, hinged on preliminary objections by the respective parties, the Respondent/Claimant has in this appeal filed a Notice of Preliminary Objection challenging the competence of the Notice of Appeal and consequent lack of jurisdiction of this Court to entertain the Appeal.
The parties filed their respective Briefs of Argument thus; the Appellants Brief of Argument dated 15th February, 2018 and filed on 26 2 2018, whilst the Respondents Brief dated 23 5 2018 and filed on 24/5/2018 but deemed filed on 16 10 2018 were both adopted at the hearing on the 26th February, 2019.
The Appellant, in his (its) Appellants Brief of Argument, settled by E. E. Akhimie Esq, who argued the appeal raised a lone
issue for determination thus:
Whether the trial Court was right to hold that the Appellant was properly served with the originating processes in this case since he is before the Court
On his part, the Respondent by his Respondents Brief of Argument articulates the preliminary objection raised by the caption whether the Notice of Appeal is competent and valid in law for failure to obtain the leave of the Court of Appeal.
On the merit of the appeal, the Respondent adopts the Appellants solo issue as can be seen at paragraph 5 pages 5 6 of his Brief of Argument. The preliminary objection shall be taken first as it is one that challenges the competence of the suit and afortiori the jurisdiction of this Court to entertain the appeal in the first place.
If a Court has no jurisdiction on account of any of the recognized reasons, which includes the incompetence of a suit, then whatever it does thereafter shall be an exercise in futility, having no substratum to stand. See Mcfoy v. UAC (1961) AC see also Madukolu vs. Nkemdilim (1962) NSCC 374.
Arguing the point of preliminary objection, the learned counsel for the respondent submitted that by the Provisions of Sections 240 and 243(3) of the 1999 Constitution of the Federation Republic of Nigeria, a person aggrieved by the decision of the National Industrial Court of Nigeria in an interlocutory matter or Civil Matter with the exception of matters on Fundamental Right and Criminal Matter can only appeal upon leave first sought and granted. That failure to so obtain leave renders such Notice and Grounds of Appeal incompetent.
The learned counsel reproduces the said provisions of Section 243(3) 1999 Constitution and cites the case of Skye Bank Plc v. Iwu (2018) ALL FWLR 9Pt. 922) 1 at 28 in adumbration and in aid.
The learned counsel submits further, that the filing of an incompetent Notice of Appeal, being what a Notice of Appeal filed without leave of Court is, where it is so ordained attracts an order of striking out of the appeal as a consequence; refers and anchors his assertion further on the judicial pronouncements in Ojemai Investment Ltd v. Attorney General of the Federation (2011) FWLR (pt. 582) 1738 at 1740 and Nwaolisah v. Nwabufoh (2011) FWLR (pt. 591) 1438 at 1441. Not yet done, the learned counsel reasoned that a Notice of Appeal is akin to a writ of summons which invokes the jurisdiction of a Court to entertain a suit.
The learned counsel proceeded to argue that where a statute prescribes the mode of performing a duty or taking a particular action, it will be an anomaly to adopt any other method to the contrary. Relying on Madukolu v. Nkemdilim (1962) NSCC 374 and the latter case of Alawiye v. Ogunsanya (2013) ALL FWLR (pt. 668) 800 at 808, it was urged that the Notice of Appeal filed on 13th March, 2018 be struck out for want of jurisdiction of this Court to entertain an incompetent Notice of Appeal.
Curiously, the Appellant by his Brief of Argument did not join any issue with the Respondent on this objection as he made no reference to it but proceeded to argue the appeal on its merit.
For filing no counter affidavit nor address in opposition, the application is deemed not opposed. However, I shall consider the objection on its merit as a person succeeds only upon his proven claim /assertion.
The provisions of Section 243(3) 1999 Constitution is clear and unambiguous. It provides in the Constitution of the Federation Republic of Nigeria, (Third Alteration) Act, 2010, Act No. 3, Section 5 thereof as follows:-
5. Section 243 of the Principal Act is altered by
(a) Inserting immediately after the words Federal High Court in the marginal notes, the words National Industrial Court; and
(b) Inserting immediately after the existing Section 243, new subsections (2) (4) (2) An Appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in chapter IV of the constitution as it relates to matters upon which the National Industrial Court has jurisdiction
(3) An Appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly; provided that where an Act or Law prescribes that an appeal shall lie from the decision of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
(4) without prejudice to the provisions of Section 254C (5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final;
However, Section 254 (C) (5) clearly provides that appeals relating to the exercise of jurisdiction on criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by the Section of the Constitution, or any Act of the National Assembly or by any other Law.
Appeal in those respects shall lie as of right to the Court of Appeal. See Section 243(C)(6) of the third alteration to the constitution.
The preliminary objection herein does not relate to the absence of allegation relating to the breach of fair hearing; it does not also relate to the absence of exercise of criminal jurisdiction of the National Industrial Court.
In the circumstance, the objection has no basis, as no leave of Court was required for the action to be commenced, and the Court had jurisdiction. This Court can entertain the appeal being one relating to alleged breach of fundamental right. No leave is required to sue or to Appeal, in respect thereto. Appeal, is one raising the complaint on the breach of fair hearing. It is a question of fundamental right. It is a ground of appeal.
The clear provisions of Section 243 of the Third Alteration to the Constitution and the apt cases of Skye Bank Plc v. Iwu (2018) ALL FWLR (pt. 922) 1 @ 28; Ojemai Investment Ltd v. Attorney General of the Federation (2011) ALL FWLR (pt. 582) 1738 @ 1740; Nwaolisah v. Nwabufoh (2011) ALL FWLR (pt. 5910 1438 @ 1441; Madukolu v. Nkemdilim (1962) NSCC 378 and Alawiye v. Ogunsanya (2013) ALL FWLR (pt. 668) 800 @ 808 are in point and relevant, but I agree that the Notice of Appeal filed without leave of Court pursuant to Section 243 of the Constitution (Third Alteration) thereof in the instant appeal is not incompetent and does not render this Court comatose of any jurisdiction over this appeal, on account of any failure of a condition precedent for the due initiation of the appeal.
The preliminary objection cannot succeed as the Ground 2 of the Notice of Appeal relates to breach of right of fair hearing on account of alleged non service.
On the merit of the appeal, suffice it, that once a Court has no jurisdiction even because of non service, it cannot proceed further other than to strike out the suit or Notice of Appeal. However, in this instance, I hold that Appellant was properly served with the originating processes in this Court. The chairman of the Defendant/Appellant commission (as established by law, ie Section 60(b) of the relevant law and been served and arguments relating to service on a Local Government Chairman was inapplicable.
The learned counsel for the Respondent had argued that the words of the Edo State Local Government Law, 2000 was clear and unambiguous; and that the literal interpretation must be applied; that is, that, its chairman of the Local Government Commission as such chairman and not any other chairman was to be served. Aromolaran v. Agoro (2015) 239 LRCN 79 @ 85 Abegunde v. The Ondo State House of Assembly (2015) 244 LRCN 1 @ 9 were relied upon.
I agree that service on the chairman constitutes proper service within the meaning of Section 78 of the Companies and Allied Matters Act, (CAMA 2004) which provides that A Court process shall be served on 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 it by post to the registered office or head office of the company.
My Lords, the Respondents counsel is also correct in submitting that the Local Government Commission is a company, it is a statutory corporation and like a chartered organization established by law.
Service on it, could be on a full time member, secretary or any similar officer or Member of the Board or Committee of that body or any responsible person, officer or employee of the statutory institution acting on behalf of that body. See the applicable High Court Rules.
The responsible person that the process was addressed to was the chairman and it was received by one C. O. Ogbomoie a principal officer in the chairmans office.
That is proper service. In any case, did the chairman or the Appellant complain that they were not in fact, served? They did not say so. What is the purport of job organogram in private and public service establishments? The objection is puerile and baseless, therefore.
Service on C. O. Ogbomo, a Principal Executive Officer II and the appearance of counsel on behalf of the Appellant, was good and effective. Service in law, as ordained by the Section 78 of CAMA, 2004, Order 7 Rule 1(v) NIC Rules 2017 and the cases of F. B. N. Ltd. v. Njoku (1995) NWLR (pt. 384) 457 @ 470 480, Uzodinma v. Izunaso (2012) 211 LRCN 153 @ 165 and my decision in the question posed in this appeal by the Appellant Whether the trial judge was right to hold that the Appellant was properly served with the originating processes in this case since he is before the Court is answered in the positive against the Appellant and in favour of the Respondent, as even if the Appellant had entered only conditional appearance as claimed, what was the in Juctice caused to it by the mode of service, which was effective and effectual? What is intriguing is the fact that the cases of Keymer v. Eddy (1912) 1KB, 215 on conditional appearance and in particular the case of Miden System Ltd v. Mrs. Glory E. Effiong (2011) ALL FWLR (pt. 591) 1596 1599 @ 1603 par. F. A. is distinguishable, as there, a messenger was held not to be a principal officer.
Here a Principal Executive Officer II i.e C. O. Ogbomo is not of the lower rank as a messenger! And what is more in Miden System Ltd v. Mrs. Glory E. Effiong, the Respondent has not controverted the Appellants contention that he had not been served. The case relied upon is clearly in applicable as it is distinguishable as (1) the Appellant had not controverted service, (2) had not shown that a Principal Executive Officer was of a messengers cadre and (3) has not shown why this Court should not take judicial notice of the fact that a principal executive officer is both an executive officer and a higher one for that matter by being a principal one.
The Appeal is without merit and intended only to delay or frustrate the hearing of the substantive suit at the trial Court. It should not be a ploy to be used by ministers in the temple of Juctice. Mansfield, J. in Jones v. Randall 98 ER 606 @ 709 condemns unconscionable postures as being contra Bonos Mores et decorum. It is against the kings Court as the general censor and guardian of the public manners.
I do same and visit the appeal herein with a censor and deprecation and dismiss the appeal.
Appeal is dismissed.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: My noble lord and brother, Mohammed A. Danjuma, JCA, has availed me the opportunity of reading in draft the lead judgment just delivered.
I have seen concerted logic in the consideration and determination of issues emanated from the appeal which made me agreed in total with the reasoning and conclusion arrived at by my lord.
The preliminary objection lacks merit and cannot see the light of the day. The appeal as provided is deduced by me as calculated attempt to delay or frustrate the hearing of the substantive suit at the trial Court which most not be encouraged by this Court. Hence, the appeal is hereby dismissed for want of merit thereto.
PATRICIA AJUMA MAHMOUD, J.C.A.: Having had the privilege of reading before now a copy of the judgment just delivered by my learned brother MOHAMMED A. DANIUMA, JCA, I adopt same as mine in dismissing this appeal.
I have nothing more to add.
Appearances:
E. E. Akhimie, Esq.For Appellant(s)
Dr B.M.O. Eseghale with him, Dr Charles OchemFor Respondent(s)
