MRS. EDNA KANGNAAN v. ERIC KANGNAAN
(2019)LCN/12579(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/J/247/2018
RATIO
COURT AND PROCEDURE: WHERE THE LITIGANT SUFFER FOR THE SINS OF THE COURT
“It is a legal abomination to make a litigant suffer for the sin and or mistake of the Court or its registry. Once a litigant has creditably followed the rules in filing his processes particularly his Originating Process, the error, mistake, inadvertence, negligence, omission etc. of the Court or its Registry cannot be visited on the litigant. See: NNPC V. SAMFADEK & SONS LTD. (2018) LPELR 44980 (SC); IBRAHIM & ORS V. BALA & ANOR (2015) LPELR 25636 (CA); D’ALBERTO V. G. CAPPA PIC (2006) ALL FWLR (PT. 335) 166 C.A; COOPERATIVE AND COMMERCE BANK (NIG) PLC. V. A.G ANAMBRA STATE (1992) 8 NWLR (PT. 261) 528. There is however no absoluteness to this principle. There must be exceptions to this general principle to ensure its good gesture is not overstretched to give rise to miscarriage of justice in the administration of justice. Accordingly, where it is shown that a litigant was in collusion with the Court Registry or that the litigant influenced the Court Registry to act in the improper manner, the litigant will share in the consequences of the error he part initiated.” PER UCHECHUKWU ONYEMENAM, J.C.A.
SERVICE: PROCESS OF SERVICE
“Let me express at this point that there is a difference between the legal effect of failure to serve a process on a party and defect or irregularity in service of process on a party. The failure to serve a process is not merely an irregularity but a fundamental defect which renders the proceedings a nullity. See: OKOYE & ANOR V. CENTRE POINT MERCHANT BANK LTD. (2008) LPELR-2505 (SC); OBIMONURE V. ERINOSHO (1966) 1 ALL NLR 250 AT 252, SCOT-EMUAKPOR V. UKAVBE (1975) 12 S.C. 41 AT 47; (1975) 12 S.C. (REPRINT) 31, ODITA V. OKWUDINMA (1969) 1 ALL NLR 228, SKENCONSULT (NIG.) LTD. V. UKEY (1981) 1 S.C. 6 AT 26; (1981) 1 S.C. (REPRINT) 4.
The purpose and primary consideration of all types of services of processes whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of and able to contest, if necessary, the action against him. The basic concern of the Court therefore, as mandated by the rules of Court in the grant of an application for substituted service, is how the action can be best brought to the attention of the other party. The Court must be satisfied that the mode of service proposed is the most probable, to give the party notice of the process concerned. See: UNITED NIGERIA PRESS LTD. & ANOR V. ADEBANJO (1969) 6 NSCC 395; OKOYE & ANOR V. CENTRE POINT MERCHANT BANK LTD (2008) LPELR-2505 (SC).” PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BetweeN
MRS. EDNA KANGNAANAppellant(s)
AND
ERIC KANGNAANRespondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment):
The appeal is against the ruling of I. I. Kunda, J., of the High Court of Plateau State, sitting at Bukuru delivered on 25th January 2018, dismissing Appellants Preliminary Objection to the jurisdiction of the Court to entertain the suit.
Dissatisfied with the ruling of the Court, the Appellant filed a Notice of Appeal on 8th February, 2018, upon four grounds of Appeal.
For the brief facts, the Respondent and the Appellant were married under the Matrimonial Causes Act. Having separated for over two years following a quarrel, the Respondent approached the Court for formal dissolution of the marriage as well as custody of the only child of the marriage.
The Appellants case is that following the separation, she relocated from Jos to Abuja, along with her son. That on 31st July, 2017, without any issued originating process and or affidavit of unserved Petition by the Bailiff of the Court, the Respondent sought and obtained Ex-parte order for substituted service of the Petition for dissolution of marriage on the Appellant by pasting at her last known address whereupon the Appellant entered a conditional appearance and filed a Preliminary Objection dated and filed 10th October, 2017 and entered a conditional appearance seeking the following orders:
1. AN ORDER striking out the Petitioner’s Ex-parte application of 6th July, 2017 for substituted service.
2. AN ORDER VACATING and or setting aside the order of this Honourable Court made on 31st July, 2017, for substituted service on the Respondent/Applicant.
3. AND for such order(s) as this Honourable Court may deem fit to make in the circumstances.
The Petitioner/Respondent in opposition of the said Preliminary Objection filed a Counter Affidavit. After hearing, the trial Court dismissed the objection for want of merit. The Appellant dissatisfied filed an appeal on 8th February, 2018.
After relevant processes were duly filed by parties, the appeal was heard on 6th November, 2018. On said day, S. I. OFAGBOR Esq., with B. P. CHUWANG Esq., S. V. DUNGUM Esq., appeared for the Appellant. While GYANG ZI Esq., with R. T. YILWATDA Esq., Y. L. AYUBA Esq. and N. T. WILLIAMS Esq., appeared for the Respondent.
M Ofagbor adopted the Appellants brief filed on 9th July, 2018 in urging the Court to allow the appeal. In response, Mr. Gyang ZI adopted the Respondents brief filed on 14th August, 2018 in urging the Court to dismiss the appeal.
In the Appellants brief settled by Stephen I. Ofagbor Esq., he distilled for the determination of the appeal the following 3 issues:
a. Whether the granting of the application for substituted service in the absence of an issued originating process is not a void process ab initio.
b. Whether there had been proper service of the originating processes on the Appellant necessitating her to enter appearance.
c. Whether the Court is not robbed of jurisdiction to entertain the suit in the circumstances.”
Mr. Gyang Zi in preparing the Respondes brief adopted the issues raised by the Appellants counsel.
I too shall adopt the issues as raised by the parties but because the issues are intertwined I shall resolve them as a sole issue.
SUBMISSIONS ON ISSUE
The Appellants counsel made reference to Fidelis Nwadialo (Civil Procedure in Nigeria) 2nd Ed. (2000) at page 258, on the procedure before leave for substituted service could be ordered. He also referred to Order 6 Rule 4 (1) and 8 of the Plateau State High Court (Civil Procedure) Rules 1987, on when an Originating Summons is issued. He submitted on the essence of issuance of writ of summons relying on: R.M.A.F.C. V. ONWUEKWEIKPE (2009) 15 NWLR (PT. 1165) 592.
Mr. Ofagbor urged the Court to hold that as at 6th July 2017, when the Court granted the Respondents application for substituted service, the suit had not commenced and the Court had no jurisdiction to entertain the application which ought to be intrinsically tied to an issued Originating Process. He contended that the Appellant having timeously objected to the jurisdiction of the Court to entertain the matter in view of the absence of an endorsed Originating Summons as required by the law, such non-compliance nullified and rendered null and void, the order of substituted service filed 6th July 2017.
The learned counsel further urged the Court to set aside the erroneous and or irregular order for substituted service made on 31st July, 2017, and the ensuing service on grounds of (a) manifold irregularities (b) non-compliance with mode of service ordered by the Court and (c) lack of service of the originating processes on the Appellant. He referred to the holding of the trial Court at page 57 of the record. He also cited: MATO V. HEMBER (2018) 5 NWLR (PT. 1612) 258; where the apex Court stated the distinction between filing a process and service of a process.
Mr. Ofagbor for the Appellant argued that the act of the Petitioner obtaining leave to serve a non-existent writ by substituted means, constituted a serious defect which violated the procedure, for an applicant to apply and obtain leave to effect service by substituted means. He contended further that the bailiff of the Court ought first to depose to an affidavit of unserved writ, stating that attempts have been made to serve an issued writ but all efforts proved futile. He submitted that as in the instance case, no attempt was made to serve as there was no duly issued writ when the application was made and granted, the order for substituted service was null and void. He therefore urged the Court to hold that the suit was not initiated by due process, as the petitioner initiated the suit by an ex-parte application for substituted service, rather than by a writ of summons, and as such the suit is incompetent, and the proceedings thereon a nullity. He cited: WAEC V. AKINKUNMI (2008) 9 NWLR (PT. 1091) 151.
The learned counsel finally urged the Court to resolve the issue in favour of the Appellant.
In response, Mr. Gyang Zi submitted that the non-issuance of the Originating Process (Notice of Petition) before the order for substituted service was granted does not void the Notice of the Petitioner already filed in Court. He contended that the Court cures such defect or irregularity via Order 2 Rule 1 of the Plateau State High Court (Civil Procedure) Rules.
The learned counsel noted that the Originating process in this suit is a Petition dated 6th July 2017; as against an Originating Summons as submitted by the Appellans counsel. He invited the Court to note that Order 6 Rule 4 of the High Court of Plateau State (Civil Procedure) Rules is in respect of Originating Summons and not a Petition. He therefore contended that the argument of the learned Appellants counsel in paragraphs 4.03 to 4.09 and the judicial authorities cited therein are misleading. He urged the Court to discountenance same. Furthermore, the learned counsel submitted that it is Order 7 of the Plateau State High Court (Civil Procedure) Rules, that regulates the filing of a Petition, and nowhere is it required or stated that a Judge should issue a petition first for it to be valid. He argued that once a Petitioner has followed Order 7 of the Plateau State High Court (Civil Procedure) Rules and files his petition every other procedural step lies with the Court and that when the Court fails in its duty, the Petitioner cannot be made to suffer for it. He relied on: D’ALBERTO V. G. CAPPA PLC (2006) ALL FWLR (PT. 335) 166 C.A; COOPERATIVE AND COMMERCE BANK (NIG) PLC V. A.G ANAMBRA STATE (1992) 8 NWLR (PT. 261) 528.
The learned counsel urged the Court to resolve the issue in favour of the Respondent.
RESOLUTION OF ISSUE
Although the learned counsel in the matter dwelt so much on the effect of the Courts error in making Ex-parte Order for the service of a petition which had not issued, I do think that the main issue is the validity of the Ex-parte Order allegedly made in the absence of an issued Originating Process.
It is a legal abomination to make a litigant suffer for the sin and or mistake of the Court or its registry. Once a litigant has creditably followed the rules in filing his processes particularly his Originating Process, the error, mistake, inadvertence, negligence, omission etc. of the Court or its Registry cannot be visited on the litigant. See: NNPC V. SAMFADEK & SONS LTD. (2018) LPELR 44980 (SC); IBRAHIM & ORS V. BALA & ANOR (2015) LPELR 25636 (CA); D’ALBERTO V. G. CAPPA PIC (2006) ALL FWLR (PT. 335) 166 C.A; COOPERATIVE AND COMMERCE BANK (NIG) PLC. V. A.G ANAMBRA STATE (1992) 8 NWLR (PT. 261) 528. There is however no absoluteness to this principle. There must be exceptions to this general principle to ensure its good gesture is not overstretched to give rise to miscarriage of justice in the administration of justice. Accordingly, where it is shown that a litigant was in collusion with the Court Registry or that the litigant influenced the Court Registry to act in the improper manner, the litigant will share in the consequences of the error he part initiated.
I do make haste to agree with the learned counsel for the Respondent that the case at hand is a Petition and in the Plateau State (Civil Procedure) Rules, Petition is governed by Order 7 of the referred Rules while Originating Summons is regulated by Order 6 of the same Rules. Since it was a Petition the Respondent filed, the arguments of the Appellant stemming on Order 6 of the Plateau State (Civil Procedure) Rules and the consequent authorities cited are not relevant to this appeal. By Order 7 of the Plateau State (Civil Procedure) Rules, the rules set out the contents and procedure for a valid Petition to be filed. The final step required of the Petitioner in Order 7 Rule 3 is the presentation of the Petition, thereafter the issuing of the petition including fixing of a date for hearing are now the duties of the Court and its registry. There was no imputation that the Petitioner failed to follow the rules as to the content of the Petition nor the procedure up to the step of presentation of the Petition
The Petition in question was filed on 6th July, 2017. That same date the Petitioner filed a motion Ex-parte for substituted service.
The Ex- parte motion was heard and granted on 31st July, 2017, and the Petition served on the Appellant by pasting same at the parents residence as her last known place of abode before the issuance of the Petition on 9th September, 2017. The Appellants grouse is that, as at 31st July 2017, when the Court granted the Respondens application for substituted service, the Petition had not been issued and the Court had no jurisdiction to entertain the application which ought to be intrinsically tied to an issued originating process. As I have expressed above, by 6th July the Respondent had creditably done all that the rules required of him to have a valid Petition, after the presentation which he did by filing the Petition, all that were left undone were what the rules required of the Court and its registry to do. The consequence of the ineptitude and or inadvertence of the Court and its registry to issue the Petition therefore cannot be put on the Respondent. See: NNPC V. SAMFADEK & SONS LTD. (2018) LPELR 44980 (SC); IBRAHIM & ORS. V. BALA & ANOR. (2015) LPELR 25636 (CA); D’ALBERTO V. G. CAPPA PLC. (2006) ALL FWLR (PT. 335) 166 C.A; COOPERATIVE AND COMMERCE BANK (NIG) PIC. V. A.G ANAMBRA STATE (1992) 8 NWLR (PT. 261) 528. I therefore hold that the petition filed on 6th July, 2017 was valid.
The Appellans further quarrel is that the Ex parte Order made on 31st July, 2017 when there was no issued Originating Process was void ab initio. The referred Order was for substituted service of a Petition which though validly filed had not yet been issued. The attack on the Order was two pronged. Firstly that, the order was made without evidence of prior but failed attempt by the bailiff of the Court to serve the Appellant personally; and secondly, without any issued Originating Process in existence. For the first leg, is the propriety of the order for substituted service made irrespective of the fact that there was no previous attempt to serve the Appellant personally and which attempt failed. The procedure before leave for substituted service could be obtained was spelt out in Fidelis Nwadialo (Civil Procedure in Nigeria) 2nd Ed. (2000) at page 258 thus –
A plaintiff can only resort to substituted service by the order of Court for which he must, first of all apply. All the rules provide for this mode of service. By the provision, where it appears to the Court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the Court may order substituted service.
By Order 12 Rule 5(4) of the Plateau State (Civil Procedure) Rules, the Court can either after or without any attempt at personal service, where it appears to it that for any reason personal service cannot be conveniently effected, order substituted service of an Originating Process. I cannot shy away from the fact that the rules of the Plateau State High Court like most other Courts permit the Court to make order for substituted service even where no attempt for personal service had been made, where the Court has reason to believe that personal service will not be convenient or near impossible. However, in practice Courts do not readily grant an order for substituted service where an attempt for personal service has not been made to avoid abuse of the provision of the rules or discourage personal service as provided, which may actually result to the hearing of a matter without serving the other party.
In the instant case, in the affidavit in support of the motion Ex-parte, it was deposed that after the Appellant left her matrimonial house she relocated to Abuja from her parents house to an unknown address. With that deposition, the Respondent was in the dark of the Appellants address and so had no other means of getting the Appellant served but by substituted means. With the material fact before the learned trial Judge, I hold the trial Court acted in consonance with Order 12 Rule 5 of the Plateau State High Court Rules when it ordered for substituted service even though there was no prior attempt for personal service.
On the second leg of the attack which is that, the Court made the order when there was no issued Originating Process. There is no dispute that the order for substituted service was granted on 31st July, 2017 and the Petition the herein Originating Process was issued on 19th September, 2017. So obviously the order for substituted service pre dates the issuance of the Petition which it was meant for. Put differently, there was no issued Originating Process for service when the Court ordered that an Originating Process should be served by substituted means. Simply, this means that the trial Court made an Ex parte order for substituted service in vain which constitutes a judicial taboo. An order for substituted service was wrongly made for an Originating Process that was not ripe for service in that it had not been issued. This means the order for substituted service was not tied to any issued Originating Process. For this the Appellant argued that the Ex parte order made by the trial Court on 6th July, 2017 in the circumstances of the case was void ab initio since it could not stand on its own legs but required an issued and not just filed Originating process to stand. She urged that the trial Court should have set aside the void substituted service order as held inTOMTEC (NIG.) LTD V. F.H.A. (2009) 18 NWLR (PT. 1173) 358.
Let me express at this point that there is a difference between the legal effect of failure to serve a process on a party and defect or irregularity in service of process on a party. The failure to serve a process is not merely an irregularity but a fundamental defect which renders the proceedings a nullity. See: OKOYE & ANOR V. CENTRE POINT MERCHANT BANK LTD. (2008) LPELR-2505 (SC); OBIMONURE V. ERINOSHO (1966) 1 ALL NLR 250 AT 252, SCOT-EMUAKPOR V. UKAVBE (1975) 12 S.C. 41 AT 47; (1975) 12 S.C. (REPRINT) 31, ODITA V. OKWUDINMA (1969) 1 ALL NLR 228, SKENCONSULT (NIG.) LTD. V. UKEY (1981) 1 S.C. 6 AT 26; (1981) 1 S.C. (REPRINT) 4.
The purpose and primary consideration of all types of services of processes whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of and able to contest, if necessary, the action against him. The basic concern of the Court therefore, as mandated by the rules of Court in the grant of an application for substituted service, is how the action can be best brought to the attention of the other party. The Court must be satisfied that the mode of service proposed is the most probable, to give the party notice of the process concerned. See: UNITED NIGERIA PRESS LTD. & ANOR V. ADEBANJO (1969) 6 NSCC 395; OKOYE & ANOR V. CENTRE POINT MERCHANT BANK LTD (2008) LPELR-2505 (SC).
In the instant case, the object of service of process was achieved in that service of the Petition on the Appellant by substituted means brought the Notice of the Petition to the attention of the Appellant. The Appellants contention is that the procedure for the substituted service was irregular in that the order for substituted service was granted before the issuance of the Petition by the Court. The learned trial Judge examined the Appellants contention and agreed that there was a procedural defect but went ahead to treat said defect as an irregularity under Order 2 Rule 1 of the Plateau State High Court Rules. Irregularity of service of process does not render the service void ab initio, the service is only voidable at the instance of the party irregularly served. A party will be held to have waived the irregularity of his service if he has taken step in the proceedings such as entering an unconditional appearance, filing of statement of defence or otherwise contest the case without any objection. See: Order 2 Rule 2 of the Plateau State High Court Rules (supra); ODUA INVESTMENT CO. LTD. V. TALABI (1997) LPELR 2232 (SC).
Herein in this appeal, the Appellant filed a Notice of Preliminary Objection on 10th October, 2017, the same day she filed her Memorandum of Conditional Appearance. For this therefore, I hold that the Appellant did not waive the irregularity of the service of the Petition by substituted means on her. The question that follows is whether the irregularity in the circumstance of the case can be cured by Order 2 Rule 1 of the Plateau State High Court (Civil Procedure) Rules. The said Rule provides thus:
“Where in the beginning of or purporting to begin any proceedings or 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 of these rules in respect of time, place, manner, form of content or in any other respect, the failure maybe treated as an irregularity and if so treated, will not nullify the proceedings or any document, judgment or order therein.”
It was sequence to this rule that the learned trial Judge exercised his discretion to treat the non issuance of the Petition before the order for substituted service as an irregularity which is curable. The defect as I noted above and with the exercise of the discretion of the trial Court is curable but the cure is subject to certain conditions. The conditions are as stated in Order 2 Rule 2 of the Plateau State High Court Rules (supra). The referred Rule provides:
An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.
By this rule, the Appellant herein who is challenging the defect in procedure of the substituted service effected on her which defect the learned trial Judge in exercise of his discretion deemed an irregularity; has the right to apply for the deemed irregularity to be set aside. Both the rule and plethora of authorities have it that once the affected party like the Appellant as in this case has applied within a reasonable time and before she has taken any fresh step after becoming aware of the irregularity, then the defective procedure or the irregular order, proceedings etc. must be set aside. So the fact that the Court has deemed any defect an irregularity does not foreclose the affected party who timeously and before taking fresh step from when he became aware of the irregularity to apply for it to be set aside.
In the instant case as I held above, the Appellant did not waive the irregularity in the grant of order for substituted service served on her as there is no fact placed before the Court to say she did not file her preliminary objection within a reasonable time and before taking fresh step in filing her Memorandum of Conditional appearance. In the circumstance therefore, the learned trial Judge ought to have set aside the order for substituted service shrouded with objected irregularity and ordered for the Appellant who then had address for service before the Court to be served properly. This is because without proper service of an Originating process in a suit, a Court lacks the jurisdiction to entertain the suit. Also a conditional appearance does not activate the jurisdiction of a Court to hear a matter. AKPABUYO L.G. V. DUKE (2001) 7 NWLR (PT. 713) 557; MULTICHEM IND. LTD. V. MUSA (2013) 8 NWLR (PT. 1356) 404.
In TOMTEC (NIG.) LTD V. F.H.A. (2009) 18 NWLR (PT. 1173) 358 AT PAGE 382, PARAS D-H, the Supreme Court stated that:
Courts of record have the inherent jurisdiction to set aside their judgment/decisions/orders, in appropriate cases, or under certain circumstances, which include when:
a. The judgment is obtained by fraud or deceit either in the Court or of one or more of the parties;
b. The judgment is a nullity;
c. It is obvious that the Court was misled into giving the judgment under a mistake belief that the parties consented to it;
d. The judgment was given in the absence of jurisdiction;
e. The proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication;
f. Where there is fundamental irregularity.”
Having come to the conclusion that the Ex parte Order made by the trial Court on 6th July, 2017 was procedurally defective and which irregularity was not waived by the Appellant, the trial Court had the jurisdiction to set the order aside following the apex Court decision referred to above. I therefore hold that there was no proper service of the Petition on the Appellant for all that I have said above.
Legally therefore, it means there was no service of the Petition on the Appellant, and there being no service the right to fair hearing of the Appellant was breached and as such any proceedings and decision arrived at was a nullity and bound to be set aside. This in essence means that the trial Court had no jurisdiction to proceed with the hearing of the Petition at least not until the Appellant had been served with the Petition which I held was valid.
Consequent upon all I have said above, I substantially resolve the issue in favour of the Appellant. Appeal therefore has merit and the same is allowed. I set aside the Ruling of the High Court of Plateau State delivered on 25th January, 2018 in SUIT NO: PLD/J/400D/2017 by I. I. KUNDA, J.
Furthermore, I make order:
1. Directing service of the Petition filed on 6th July, 2017 on the Appellant.
2. For the case file to be remitted to the Chief Judge of Plateau State to be reassigned to another Judge for hearing and determination.
There shall be no order as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uchechukwu Onyemenam. His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide the conclusion reached therein.
This is one of those appeals that have no business coming before this Court. The originating processes in the matter were served on the Appellant by substituted service. Now, the essence of service of a Court process is to bring it to the attention of the party served, and thus it should really make no difference whether the process was served by substituted means or personally, unless the party served suffered a detriment by reason of the mode of service. The Appellant suffered no detriment by the substituted service of the originating process on him, yet his Counsel filed a motion before the lower Court to set aside the service on the ground that the Respondent did not do the needful before obtaining the order for substituted service. The issue could have been resolved by the lower Court at the stage of the hearing of the application, by setting aside the substituted service and directing that the Appellant be personally served with the originating process, and nobody would have been worse for it. Rather than do this, the lower Court spent scarce judicial time on hearing the application and on delivering a Ruling thereon, which led to the present appeal. When the appeal was filed, Counsel to the Respondent could have easily conceded the appeal and gone ahead to get the bailiff of Court to effect personal service of the processes on the Appellant, and put an end to the matter. Counsel did not do so, and he chose to contest the appeal by filing a respondent’s brief of argument.
This appeal adds nothing to our legal jurisprudence and serves no useful purpose, other than to fuel the ego of the two Counsels involved; it does not project or add any value to the rights of the parties. Thus, a matter filed on the 3rd of July, 2017 has spent over eighteen months in the Court system on an issue that could have been resolved in a matter of days, and without any iota of progress being made on resolution of the dispute submitted to the Court for adjudication. This is not how the administration of justice system should be used. The issue agitated in this appeal is not about justice and fair play.
This is an antithesis to the real purpose that law and the administration of justice system should serve in any rational society.
It is correct that our system of administration of justice, unfortunately, permits the filing of such applications as filed by the Counsel to the Appellant in the lower Court, and the pursuing of an appeal against a Ruling on the point. However, a practicing lawyer or a barrister will only qualify to be called “ethical” in his practice of law, the only way law should be practiced, when he shows a clear understanding of the difference between what you have a right to do and what is right to do. All the stakeholders and partakers in the administration of law and the legal system must understand that if we desire respect for the law, we must first make the law respectable; and not a spectacle. We must conduct our activities in a manner that edifies and brings honor, respect and belief to the justice system. It is pertinent that this Court reminds Counsel of the eternal words of a great jurist J Wesley McWilliams who writing in an American Bar Association Journal in January 1955 (41 ABA 18) wrote in an article he titled “The Law as a Dynamic Profession” thus:
“We belong to an ancient, to a great, to an honored profession. The practice of Law is a worthy calling. It has rewarded us with financial success and with prestige and leadership in our communities. It has given us much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbors whom we have served. Our word affords intellectual pleasure with dignity and independence, in competition with our fellow Lawyers with whom we have cemented warm friendships and enjoyed happy companionships. For these blessings, we cannot but have a sense of gratitude and of obligation. The most productive, unselfish and wholly satisfying repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the welfare of the profession.
This case has done nothing to do with the advancement of the effective use of the judicial system. It is hope that Counsel to the parties will take a more pragmatic approach to such matters, going forward.
I too hereby allow the appeal and set aside the Ruling of the lower Court. I abide by the consequential orders contained in the lead judgment.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I was privileged to read in draft the judgment just delivered by learned brother, UCHECHUKWU ONYEMENAM, JCA. It represents my view in the appeal. I hereby adopt it.
For sake of emphasis, let me add a view words. It is trite that the failure to serve process where required such as in the matter leading to this appeal is a failure which goes to the roots of the suit. It is a fundamental vice because the service of such process is a condition precedent to exercise of jurisdiction by the Court from whose registry the writ of summons was issued. See KALU MARK & ANOR V GABRIEL EKE (2004) 5 NWLR (PT. 865) 54, ADEIGBE & ANOR. V KUSIMO & ANOR. (1965) N.M.L.R. 284, SKENCONSULT (NIG) LTD V UKEY. (1981) 1 SC. 6 at 26., NATIONAL BANK OF NIGERIA LIMITED V GUTHRIE (NIG) LIMITED & ANOR. (1993) 3 NWLR (PT. 284) 643., CHIEF J. OLORUN YOLEMI & ANOR. V MRS HELEN AKHAGBE (2010) 8 NWLR (PT. 1195) 48., ESTATE OF LATE CHIEF HUMPHREY 1. S. IDISI V ECODRIL NIGERIA LTD & ORS. (2016) LPELR 40438.
In the light of the foregoing and detailed reasoning in the lead judgment, I also find substance in this appeal, hence it succeeds accordingly. I set aside the Ruling of the trial Court in suit No. PLD/J/400D/2017 delivered on 25th January 2018.
I abide by the consequential orders contained in the lead judgment.
Appearances:
I.S. Ofagbor, Esq. with him, B.P. Chuwang, Esq. and S.V. Dungum, Esq.For Appellant(s)
Gyang ZI, Esq. with him, R.T. Yilwatda, Esq., Y.L. Ayuba, Esq. and N.T. Williams, Esq.For Respondent(s)
