MRS. FOLA AGANGA-WILLIAMS v. Q21 SOLUTIONS LIMITED
(2018)LCN/12139(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 14th day of November, 2018
CA/L/280M/2014
RATIO
COURT AND PROCEDURE: LACK OF PROPER SERVICE
“Lack of service or improper service of process when in issue becomes a question of jurisdiction, once the proceedings are conducted without service of process or improper service of process vide Mark v. Eke (2004) 5 NWLR (pt. 865) 54 at 78, Agip (Nig.) Ltd. v. Agip Petrol International (2010) 5 NWLR (pt.1187) at 388-389, Olorunyolemi v. Akhagbe (2010) 8 NWLR (pt.1195) 48 at 62, Ndukauba v. Kolomo (2005) 4 NWLR (pt.915) 411 at 431, Newswatch Communications Ltd. v. Attah (2006) 12 NWLR (pt.993) 145 at 181, Okoye v. Centre Point Merchant Bank (2008) 15 NWLR (pt.1110) 335 and the cases (supra) cited by the appellant on the issue.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
MRS. FOLA AGANGA-WILLIAMS – Appellant(s)
AND
Q21 SOLUTIONS LIMITED – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from an interlocutory decision of the Federal High Court sitting in Lagos (the Court below) whereby it refused to hear the appellants motion on notice to set aside the purported service of the originating processes in the matter on the ground that the appellant had not filed a memorandum of appearance in the matter.
The facts in relief were that the respondent filed an action at the Court below for declarations that the appellant having been removed as a director by a resolution dated 11.05.13, ceased to be a director of the respondent, and for a declaration that the appellant by her activities breached the fiduciary relationship between her and the respondent. The respondent also claimed the sum of N50 million being damages for the appellants breach of her fiduciary relationship with the respondent, and an order of perpetual injunction restraining the appellant from further parading herself as a director of the respondent.
According to the appellant, she was not personally served with the originating process which was served on the chambers of C.O.I., Joseph SAN which declined accepting it on the ground that the law firm was not briefed by the appellant; that by a letter dated 02.07.13 in page 51 of the record of appeal (the record) the law firm of Bamidele Ibironke & Co. informed the appellant of the pendency of the action at the Court below, but the writ of summons was not served on her; that the appellant sent the letter (supra) to her solicitors, C.O.I. Joseph’s Chambers, and instructed the law firm to take necessary action; on 12.07.13, the matter came up for the first time before the Court below and a Mr. Gabriel Osikoya, of learned counsel, appeared for the appellant and informed the Court below that the appellant was not served with the writ of summons and other originating processes but that the appellant got wind of the suit through a letter sent to her by learned counsel to the respondent contained in page 72 of the record.
Despite the protest of the appellant at the Court below, learned counsel to the respondent made no effort at serving the originating processes on the appellant for her to defend the action; therefore, the appellant caused a motion to be filed on 28.11.13, seeking to set aside the purported service of the originating processes in the matter. Learned counsel to the appellant sought to move the motion on 02.12.13, but learned counsel to the respondent took preliminary objection that the appellant had not filed a memorandum of appearance in the matter and ought not to be granted audience.
On the other hand, the respondents case was that upon commencement of the action, the originating processes were subsequently served on the appellant on 13.06.13, and that the appellants motion for substituted service of the process was struck out for non compliance with the rules of the Court below.
The appellant was miffed with the ruling delivered by the Court below on 10.01.14, agreeing with the respondent and refusing that the application should be moved unless memorandum of appearance was filed by the appellant. She therefore filed a notice of appeal with two grounds of appeal challenging the decision of the Court below.
The appellant argued in the brief of the argument filed on 18.05.15, that the purpose of a memorandum of appearance is to let the plaintiff know that the defendant had received the writ of summons; that the action may be defended; and that the address for service of other documents be known to the other side, or the address of the solicitor who is appearing for the defendant is disclosed on the memorandum of appearance citing in support the case of Dike v. Union Bank Limited (1987) 4 NWLR (pt.67) 958 at 962 read with Order 7 (1) and 29 Rules 1 – 4 of the Federal High Court (Civil Procedure) Rules 2009 (the rules of the Court below).
The appellant referred to Order 29 Rule 4(a) of the rules of the Court below which requires a defendant who wishes to challenge the jurisdiction of the Court to file a memorandum of appearance before he could be heard to contend that by the case of Adewumi v. A.-G., Ondo State (1996) 8 NWLR (pt.464) 73 at 85-86 to the effect that a defendant may without entering an appearance move to set aside the service of the writ, as issue of service of process is jurisdictional and could be raised at any time even under the inherent jurisdiction of the Court without filing an application citing in support the cases of John Andy Sons and Co. Ltd. v. Mfon (2006) 12 NWLR (pt.995) 461 at 477, Arjay Ltd. v. Airling Management Support Ltd. (2003) 2-3 SC 1 at 10 – 12.
The appellant argued that the refusal of the Court below to hear and determine the motion on notice dated 28.11.13, denied the appellant her fundamental right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (the 1999 Constitution) and a negation of the duty of the Court below to hear all pending applications before it citing in support of the cases of Okeke-Oba v. Okoye (1994) 8 NWLR (pt.364) 605 at 616, Nokoprise Int. Co. Ltd. v. Dobest Trad. Corp. (1997) 9 NWLR (pt.520) 334, Agbahomovo v. Eduyegbe (1999) 3 NWLR (pt.594) 170 at 184, Adeyemi v. Ikeoluwa and Sons Ltd. (1993) 8 NWLR (pt.309) 27 at 40; consequently, the appellant advocated that the appeal should be allowed and the ruling of the Court below reversed and the suit remitted to the Court below for the said motion to be taken before another learned Judge of the Court below.
The respondents brief was filed on 03.06.15, in which it was contended that by Order 29 Rules 1, 2 and 3 of the Rules of the Court below which must be given literal construction, the appellant was required to file memorandum of conditional appearance before challenging the jurisdiction of the Court below and that rules of Court are meant to be obeyed. More so, the particular rule of Court used the word shall and having not done so the Court below was right by insisting the rules be followed before the motion could be heard citing in support the cases of Onagoruwa v. Adeniji (1993) 5 NWLR (pt.293) 317 at 334, Comp. Home Enterprises Ltd. v. Henry Stephen Eng. Co. Ltd. (1993) 9 NWLR (pt.316) 208 at 214 and 221, Asika v. Atuanya (2013) 4 NWLR (pt.1375) 510, Aina v. Jinadu (1992) 4 NWLR (pt.233) 91 at 96, Eze v. Okechukwu (1998) 5 NWLR (pt.548) 43 at 56, Ojukwu v. Onyeador (1991) 7 NWLR (pt.203) 286 at 305, Musa v. Mamza (1982) 8 NWLR (pt.257) 115 at 127, MC Investments Ltd. and Anor. v. Core Investments and Capital Markets Ltd. (2012) 12 NWLR (pt.1313) 1 at 17 and 21, Nwankwo v. Yar’adua (2011) 13 NWLR (pt.1263) 81 at 125, M.H.W.U.N. v. Minister of Labour and Productivity and Ors. (2005) 17 NWLR 120 at 147 – 148, Co-operative Bank of Eastern Nigeria v. Ogwuru (1991) 1 NWLR (pt.168) 458 at 468.
The respondent contended that the prima facie evidence of service of the process on the appellant was not rebutted, therefore the presumption of regularity that she was served operated in favour of proper service citing in support the cases of Mohammed v. Mustapha (1993) 5 NWLR (pt.292) 225, Kaduna Textiles Ltd. v. Umar (1994) 1 NWLR (pt.319) 149.
The respondent pointed out that Order 7 Rule 1(1) of the rules of the Court below made no mention of conditional appearance, therefore neither the parties nor the Court is permitted to read into a statute and by extension the rules of Court words which are not there citing in support the cases of Effiong v. Henshaw (1972) 7 NSCC 329 at 332, Sunmonu v. Oladokun (1996) 8 NWLR (pt.467) 387 at 408, Edozien v. Edozien and Ors. (1998) 13 NWLR (pt.580) 133 at 152; upon which the respondent urged that the appeal should be dismissed as the appellant was not denied fair hearing, but was only obliged by the Court below to comply with the relevant provision of the rules of Court.
Lack of service or improper service of process when in issue becomes a question of jurisdiction, once the proceedings are conducted without service of process or improper service of process vide Mark v. Eke (2004) 5 NWLR (pt. 865) 54 at 78, Agip (Nig.) Ltd. v. Agip Petrol International (2010) 5 NWLR (pt.1187) at 388-389, Olorunyolemi v. Akhagbe (2010) 8 NWLR (pt.1195) 48 at 62, Ndukauba v. Kolomo (2005) 4 NWLR (pt.915) 411 at 431, Newswatch Communications Ltd. v. Attah (2006) 12 NWLR (pt.993) 145 at 181, Okoye v. Centre Point Merchant Bank (2008) 15 NWLR (pt.1110) 335 and the cases (supra) cited by the appellant on the issue.
Being an issue of jurisdiction, Order 29 of the rules of the Court below specifically provides in mandatory terms that it should be raised after the defendant files memorandum of conditional appearance. For clarity, Order 29 of the rules of the Court below reads
ORDER 29
DISPUTING THE COURT’S JURISDICTION
1. Where a defendant wishes to-
(a) dispute the Court’s jurisdiction to try the claim; or
(b) argue that the Court should not exercise its jurisdiction,
he may apply to the Court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the Plaintiff’s substantive suit in so far as the substantive suit does not involve the taking of oral evidence.
2. A defendant making such application must first file along with the application a memorandum of appearance stating that he is appearing conditionally.
3. A defendant who files a memorandum of appearance does not, by so doing, lose any right that he may have to dispute the Courts jurisdiction.
Order 7 of the rules of the Court below relied upon by the appellant does not deal with conditional appearance challenging the jurisdiction of the Court below, nor do the cases (supra) cited by the appellant on raising an issue of jurisdiction without filing memorandum of conditional appearance interpret Order 29 of the rules of the Court below and are on that basis not germane to the consideration of the appeal.
It is basic that rules of Court must be obeyed vide Williams v. Hope Rising Voluntary Funds Society (1982) NSCC 36. The consistent trend by the Apex Court is that rules of Court should be complied with by the parties and the Court. Thus in the case of MC Investments Ltd. and Anor. v. Core Investments and Capital Markets Limited (2012) 12 NWLR (pt.1313) 1 at 17 the Supreme Court held per the lead judgment prepared by Mohammed, J.S.C., (later CJN) in emphatic terms that
Rules of Court are made to be complied with by parties and the Courts. The rules regulate the matters in Court and help parties to prosecute their cases to achieve fair hearing and quick dispensation of justice. See Solanke v. Somefun (1974) 1 S.C. 141, Ibodo v. Enarofia (1980) 5 – 7 S.C. 42, Aina v. Obabiolorunkosi (1986) 2 NWLR (pt.22) 316, Olusesi v. Oyelusi (1986) 3 NWLR (pt.31) 634, John Blakk (No.1) (1988) 1 NWLR (pt.72) 648 and Dambam v. Lele (2000) 11 NWLR (pt.678) 413.
See also Ifeanyichukwu Trading Investment Ventures Ltd. and Anor. v. Onyesom Community Bank Ltd. (2015) 17 NWLR (pt.1487) 1 at 26-27, Ighedo and Ors. v. P.H.C.N. Plc (2018) 9 NWLR (pt.1623) 51, and the cases (supra) cited by the respondent on the issue.
Since the appellant did not comply with the condition precedent to file a memorandum of conditional appearance under the imperative Order 29 of the rules of the Court below, the motion to set aside the service of the process was not ripe for hearing as held aright, in my view, by the Court below.
The ruling of the Court below contained in pages 83-85 of the record read as a whole indicated that the memorandum of conditional appearance be filed by the appellant before her motion to set aside service of the process may be moved, showing the Court below did not refuse to hear the application and did not deny the appellant fair hearing but insisted the relevant rule of the Court below be complied with before the application would be heard.
In the result, I find no merit in the appeal and hereby dismiss it and uphold the ruling of the Court below. The appellant shall pay N200,000 costs to the respondent.
MOHAMMED LAWAL GARBA, J.C.A.: From the facts of the case before the Lower Court, the grounds of appeal and arguments by the Appellant in the Appellant’s brief, this appeal was quite unnecessary and the Appellant should have simply complied with the Rules of the Lower Court as directed in the Ruling appealed against.
I am in complete agreement with the views expressed and the resolution of the issues in the appeal as contained in the lead judgement of my learned brother JOSEPH SHAGBAOR IKYEGH. JCA and join him in dismissing the appeal in the terms set out therein.
JAMILU YAMMAMA TUKUR, J.C.A.: I have had the privilege of reading before today the draft of the judgment just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH. JCA.
I agree with his reasoning and conclusion. The appeal is dismissed.
Appearances:
The Appellant was unrepresented but served hearing notice. For Appellant(s)
The Respondent was unrepresented but served hearing notice too. For Respondent(s)
