MR. COURAGE OGBEIDE v. ANNA OGBEIDE
(2019)LCN/13383(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/B/171/2008
RATIO
SERVICE OF PROCESSES : THE EFFECT OF FAILURE TO SERVE ON AN ADVERSE PARTY
The law is now settled that where a process is required to be served on an adverse party, failure to serve the process is a fundamental vice which deprives the Court of its competence and necessary jurisdiction to hear the action or matter. See Odutola v. Kayode (1994) 2 SCNJ 21;Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 5; Mohammed Mari Kida v. A.D. Ogunmola (2006) 13 NWLR (Pt. 997) 377 and United Bank for Africa PLC v. Magama (Nig.) Ltd. (2013) 16 NWLR (Pt. 1379) 36.PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JURISDICTION: IMPORTANCE
The question of jurisdiction is so fundamentally important that where a Court proceeds to exercise jurisdiction, which it lacks, its decision is nothing but a mere nullity. See Attorney-General for Trinidad & Tobago v. Erichie (1893) AC 518. Timitimi v. Amabebe (1953) 4 WACA 373 and Ekulo Farms Ltd. v. Union Bank of Nigeria PLC (2006) 6 SCM 78.PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MR. COURAGE OGBEIDE Appellant(s)
AND
ANNA OGBEIDE Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondent was the plaintiff in Suit No. B/441/88 instituted in the High Court of Edo State, holden at Benin City. The original defendant to the action was one SAMUEL OGBEIDE later, the Administrators of the Estate of Samuel Ogbeide were made defendants to the said suit namely: MR SUNDAY OGBEIDE, MR. OMORUYI OBANOR and MRS ANNA OGBEIDE. By a motion ex parte filed on 27/03/92, which was later granted, the appellant was substituted for SAMUEL OGBEIDE, who had died, and he was made the 4th defendant to the action. In the said suit, the respondent, as the plaintiff, claimed as follows: –
a. A declaration that the late Samuel Ogbeide is in breach of the contract agreement entered into with the plaintiff.
b. N500, 000.00 being special and general damages for the said breach of contract.
The trial Court heard the case and delivered a reserved judgment on 21/07/2004 whereby the respondents? claim was granted with N10, 000.00 awarded as costs against the appellant. This is an appeal against the said decision and it was heard on
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the following processes: –
1. Amended notice of appeal filed on 28/02/2017;
2. Amended appellant?s brief filed on 28/02/2017 and
3. The respondents? brief filed on 08/12/2016.
The appellant distilled the following issues for determination: –
1. Whether the trial culminating in the judgment of the trial Court in Suit No. B/441/1988 dated the 21st day of July, 2004 is not a nullity same being bereft of jurisdiction and indeed an infraction of the appellant?s right to fair hearing. (Grounds 1,2,3,5 and 6)
2. Whether the inclusion of the appellant as a party (4th defendant) purportedly as substitute for Samuel Ogbeide (deceased 1st defendant) was proper in law. (Ground 6).
3. Whether upon calm consideration of the totality of the case, 1st respondent?s case ought to have been dismissed by the trial Court. (Grounds 1, 2, 3, 4, 5 and 6).
Three issues were also formulated by the respondent but couched thus: –
1. Whether the trial Court proceeded to try and determine the suit without jurisdiction.
2. Whether the cause of action survived Samuel Ogbeide, and if so whether the
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trial Court rightly and properly substituted the appellant for him.
3. Whether the evidence on record does not in any way support the judgment entered by the trial Court.?
The respective issues identified by the appellant and the respondent are essentially the same. However, because the issues framed by the learned counsel for the appellant are quite concise, I adopt them for determination of the appeal.
I will treat issue 1 first, since it borders on jurisdiction.
?ISSUE 1
Learned counsel referred to undated amended writ of summons and the statement of claim dated 9th June, 1989 and argued that the two processes never had any endorsement thereon that the defendants (including appellant) were being sued in any representative capacity as Customary Administrators of the Estate of Samuel Ogbeide. It was contended that the absence of the endorsement of the capacity in which the appellant was sued contravened the mandatory provision of Order 5 Rule 11 (1) (b) of the Bendel State High Court (Civil Procedure) Rules 1988 (then applicable to Edo State).
It was argued that the procedure for
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issuance of the Amended Writ of Summons No. 2 was not in compliance with Order 5 Rules 3 and 5 of the relevant High Court Rules, because there was no prior leave before the said writ was issued and the mandatory endorsement pursuant to Sections 96 to 99 of the Sheriffs and Civil Process Act was lacking on the said processes. The appellant referred to the application for joinder dated 26th day of March, 1992 wherein his address was given as 1 Amphibious Battalion, Bori Camp, Nigerian Army, Port Harcourt, outside the jurisdiction of Edo State.
Learned counsel also contended as follows: –
Apart from mere application for substitution, the said amended writ of summons and statement of claim No. 2 (the purported extant processes) were neither properly filed nor duly served on the appellant. The said processes were merely attached to the said application dated 29th January, 1996 without more. There is nowhere in the said application that the purported amended processes were shown to have been deemed properly filed by Order of Court.”
Relying on the cases of Solanke v. Somefun (1974) 1 SC 141; Ibodo v. Enarofia (1980) 5-7 SC
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42; Mark v. Eke (1997) 11 NWLR (Pt. 527) 501; Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt. 109) 250; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 and Ceekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132; learned counsel argued that: –
Rules of Court are meant to be obeyed and non compliance with the salient provisions of the said Bendel State High Court (Civil Procedure) Rules 1988 and the Sheriffs and Civil Process Act, to the extent that it infringed on the right of fair hearing of the appellant, transcends mere irregularity but indeed, a nullity which robbed the trial Court of its competence.
In response, learned counsel for the respondent stated inter alia as follows: –
The subsisting writ of summons and statement of claim is that filed by the 1st respondent in the suit on the 27th day of February 1996, and attached to a motion to amend dated 29th day of January 1996.
In determining these issued the vital processes to be relied on are:
a. Enrolment of order dated 11th November, 1992, see page 7 of the records.
b. The motion dated 29th day January, 1996 to which is attached the
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1st respondents amended writ of summons and further amended statement of claim No. 2 the payment of the filing fees is clearly shown at page 13 of the record.
It is submitted that when Sunday Ogbeide, Omoruyi Obanor and the 2nd respondent were made parties to the suit, the capacity in which they were substituted was shown. The enrolment of order clearly showed the capacity in which they were sued. They were never mislead (sic) as to the capacity in which they were sued.
They did not challenge or question the capacity in which they were sued. They took part in the entire proceeding culminating in the judgment of the Court. They in fact waived their rights by failing or refusing to question the capacity in which they were sued. If there was any non-compliance it is only the Sunday Ogbeide, Omoruyi Obanor and the 2nd Respondent that can raise the issue. It does not lie in the mouth of the appellant.
Learned counsel argued that the appellant was made a party to the suit pursuant to the application dated 29th January, 1996 and that paragraph 2 of the further amended statement of claim No. 2 ?clearly shows the capacity in which he was
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joined. Relying on the case of Raufu Gbadamosi v. Olaitan (2001) 6 NWLR (Pt. 708) 137 at 149, counsel submitted that a statement of claim, when filed, supercedes the writ of summons.
Counsel submitted that the appellant was duly served with all the processes and hearing notices before the trial of the suit commenced. Counsel said that service was effected by pasting of the processes at the appellant?s last known address within jurisdiction pursuant to an order of substituted service dated 20th November, 1996. To buttress his assertion, learned counsel referred the Court to page 30 of the record of appeal and pages 40A ? 40F of the additional record of appeal.
Learned counsel referred to an alleged ?additional record of appeal. I have read the Court?s case file several times and I could not see any additional record of appeal transmitted to this Court.
The appellant complained that he was not served with the processes in the respondent?s suit. Learned counsel for the respondent argued strongly that the appellant was served by substituted service as ordered by the trial Court.
The motion ex parte
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for substituted service of the process on the appellant was filed on 15/10/2001 of the record of appeal and the prayers were as follows: -1. An order for substantial service on the 4th defendant, the 2nd defendant?s amended statement of defence and all other processes filed in this suit by the 2nd defendant/applicant by pasting same on the wall of the house or the door leading into the house wherein the 4th defendant lives or last known place of abode.
2. TO DEEM AS DULY filed and served the said 2nd defendant?s amended statement of defence herewith as exhibit A.
See page 36 of the record of appeal.
On page 41 of the record, the relevant part of enrolled order, after the respondents ex parte motion was granted, is reproduced as follows: –
It is ordered as prayed on the motion paper. It is further ordered that all processes in this matter shall be served on the 4th defendant (sic) by pasting on the wall of the house or the door leading into the house wherein the 4th defendant lives or his last known place of abode and this shall be deemed proper service for all processes in this suit”
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As can be seen from the relief sought in the respondent?s motion ex parte for substituted service and the order as granted, the address for service of the process on the appellant was left at large, as no specific or identifiable address for service was provided by the respondent. In the absence of specific address for service of processes on the appellant, and having regard of the appellant?s vehement denial that he was served, there must be specific proof that the appellant was indeed served with the respondent?s writ or amended writ of summons, statement of claim and relevant hearing notices.
In the instant case, there is nothing in the record of appeal to prove that the appellant was served with the respondents writ of summons, amended writ of summons, the further amended statement of claim no. 2 or any statement of claim.
The law is now settled that where a process is required to be served on an adverse party, failure to serve the process is a fundamental vice which deprives the Court of its competence and necessary jurisdiction to hear the action or matter. See Odutola v. Kayode (1994) 2 SCNJ 21;
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Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 5; Mohammed Mari Kida v. A.D. Ogunmola (2006) 13 NWLR (Pt. 997) 377 and United Bank for Africa PLC v. Magama (Nig.) Ltd. (2013) 16 NWLR (Pt. 1379) 36.
The question of jurisdiction is so fundamentally important that where a Court proceeds to exercise jurisdiction, which it lacks, its decision is nothing but a mere nullity. See Attorney-General for Trinidad & Tobago v. Erichie (1893) AC 518. Timitimi v. Amabebe (1953) 4 WACA 373 and Ekulo Farms Ltd. v. Union Bank of Nigeria PLC (2006) 6 SCM 78.
Without further ado, I resolve this issue in favour of the appellant and against the respondent. The appeal is allowed on this ground.
The judgment of the trial Court delivered on the 21st day of July, 2004 in Suit No. B/441/88 is hereby set aside for lack of jurisdiction.
The parties are hereby ordered to bear their respective costs.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read the draft copy of the leading judgment just delivered by my learned brother, Moore Aseimo Abraham Adumein, J.C.A.
I adopt the
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reasoning and conclusion reached therein as mine.
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Appearances:
C. J. Enegide, Esq.For Appellant(s)
C. Asuerimen, Esq. for the 1st respondent.For Respondent(s)
Appearances
C. J. Enegide, Esq.For Appellant
AND
C. Asuerimen, Esq. for the 1st respondent.For Respondent
