SALE & ORS v. OCHEME & ANOR
(2020)LCN/15193(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Thursday, March 26, 2020
CA/K/515/2016
Before Our Lordships:
Saidu Tanko Hussaini Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
- BALA SALE 2. MALLAM DOGO GALADIMA 3. MRS. FIDELIA ONINWA 4. MR. SOLOMON OKORIE 5. MALLAM NUHU OZIGI 6. MALLAM MUSA MADAKI 7. MALLAM USMAN ADAMU MSHELIA 8. MALLAM ALIYU SAMBO 9. MALLAM ABDULAZEEZ YUSUF 10. MALLAM MUSA BAIDU HANWA 11. ALHAJI HASSAN TAMBAI 12. MALLAM NAJIMU AHMED 13. MALLAM ADAMU ALHASSAN 14. MALLAM M. M. MUHAMED 15. MALLAM YAHAYA SULE 16. MRS. LADI GAIDAN 17. MALLAM UMORU JUSHI 18. MALLAM MOHAMMADU IBRAHIM 19. MALLAM DANLADI N. JIBRIN 20. MR. ABOLARIN IDOWU 21. MALLAM SANI HASSAN 22. MALLAM DANJUMA IBRAHIM 23. MALLAM SHEHU NKANLOLA 24. MALLAM BALA MUHAMMED 25. MALLAM YAKUBU IBRAHIM 26. MRS. LARABA OBERA 27. MR. BUKUS ABOT 28. MALLAM AHMAMU MUSA 29. MR. YOHANNA KARINTA 30. MR. BALALE ABDU 31. MR JETHRO AJAYI 32. MALLAM ABDULLAHI HARUNA 33. MR JOSEPH OLADIMEJI 34. MALLAM ALIYU A MUHHAMED 35. MALLAM ALI GALADIMA 36. ALHAJI AUDU BUBA 37. MALLAM JAFARU USMAN 38. MR ERINMAKO OLORUNSHOLA 39. MR EMMANUEL ENILEGBE 40. MALLAM SHEHU AUDI 41. MR EMMANUEL THUNOKHA 42. MALLAM YA’U IBRAHIM 43. MALLAM USMAN MOHAMMED 44. MR. OLUSEGUN BAMIGBAIYE 45. MR. SUNDAY A. ASURIMEN 46. MALLAM NDAMADU YAKUBU 47. MALLAM ALIYU ADAMU 48. MALLAM DANLAMI ADAMU 49. MR. JACOB OBAJE 50. MALLAM SANI DANLAMI 51. MR. SAMUEL ADANIKE 52. MR. T. TUNDE AFOLABI 53. MALLAM BUBA G. GARKIDA 54. MR. RUFUS ADEYEMO 55. MR. ZACHEAUS AJAYI 56. MRS. ROSELINE ISHIDA 57. MR. USMAN ABDUL 58. GEORGE AKOH 59. KYARI KOLO 60. SULE BARO 61. ISA YUSUF 62. AUGUSTINE ABAH 63. ISIAKU AHMED 64. UBAGIDA ISIAKU 65. JOSHUA KUNGU 66. MRS KATE CHUKWU 67. ALHAJI IDRIS ALABELEWE 68. YAU SHU’AIBU 69. AHMADU TSAIBU 70. ALI ISSA APPELANT(S)
And
- PETER A. OCHEME ESQ. (TRADING AS P. A. OCHEME & CO.) 2. BRITISH AMERICAN TOBACCO (NIG.) LTD. RESPONDENT(S)
RATIO
DIFFERENCE BETWEEN A “COURT PROCESS” AND “ANY OTHER DOCUMENT”
Section 78 of the Companies and Allied Matters Act is the pivot, upon which the Ruling appealed against revolve. The trial Court relying on the decision in Mark v. Eke (supra) and Section 78 of the Companies and Allied Matters Act, ruled that the Writ of Summons which originated the Suit, ought to have been served at the Registered Office of the 1st Respondent i. e in Lagos and not at the branch office in Zaria.
There is the need thus, to take another look at Section 78 of the Companies and Allied Matters Act. It provides thus:-
“78. A Court process shall be served on a 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” (words underlined for emphasis)
The provision referred to above envisages two (2) types of documents for purposes of service on Companies. The first, belongs to the category of documents known as Court Processes and the second category, are documents other than Court Processes. There is thus a differentiation between what is termed as “a Court Process” and “any other document” within the meaning of Section 78 of the Companies and Allied Matters Act.
A “Court Process” even though not defined in the Act (CAMA), is to my mind, something akin to a document which forms part of the record of the Court or documents issued by the Courts. Such “process” can only be served on a Company in the manner provided for, in the relevant Rules of Court in line with Section 78 of the Companies and Allied Matters Act. By that same provision, “any other document” can be served on the Company by leaving it or sending it to the registered address of the Company. PER HUSSAINI, J.C.A.
WHETHER OR NOT THE FUNCTION OF THE COURT IS TO INTERPRET A STATUTE IN THE LIGHT OF THE LANGUAGE USED
The function of the Court is to interpret a statute in the light of the language used. See TANKO V. THE STATE (2009) 4 NWLR PART (1131) 430 where Niki Tobi J.S.C. said this; “A Court of law cannot go beyond the language used in a Statute to examine the possible of the application of a statute particularly when the language and not stressed to accommodate the possible or likely effect of the statute. The only hire of the Judge is to interpret a statute and not its likely consequences”
It is not within the province of the trial Court to import new facts or information into the case put up by the parties to arrive at a decision which is absurd, as in this case, on appeal. Such decisions cannot be allowed to stand. See: FRN v. Osahon & Ors. (2006) 5 NWLR (Pt. 995) 361; Amagalmated Trustees v. Associated Discount Ltd. (2007) 15 NWLR (Pt. 1056) 118; Lawal v. G. B. Ollivant (Nig.) Ltd (1972) 3 SC 124, 137. PER HUSSAINI, J.C.A.
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The Appellants were the Plaintiffs at the High Court of Kaduna State, Zaria Judicial Division. They commenced action at the said Court vide the Writ of Summons issued at their instance sometimes in the year 2000. The Writ was filed along with the Statement of claim (as amended) wherein they sought several reliefs against the Respondents herein as defendants, among other persons at that Court. Their claim is encapsulated at paragraph 46 (1)(3)(3)(4)(5)(6)(7) of the amended Statement of claim and reproduced at pages 3 – 33 of the Record of Appeal.
In opposing to the claim, the Respondents as Defendants, entered appearance and filed their respective Statements of defence to deny the claim. Hearing commenced thereafter with the evidence of P.W 1 taken on the 14th February, 2003. There were series of adjournments taken thereafter. However, on the 22nd March, 2007, the 1st, 2nd & 3rd Defendants, now 1st Respondent, filed a Notice of Preliminary Objection which was premised on three grounds, namely:
(1) The Registered Office of the Applicant is in Lagos while the Originating processes in the instance suit were served on the applicants at their Zaria Branch Office.
(2) The fundamental requirements of the law governing issuance and service of Writ of Summons out of jurisdiction were breached.
(3) The suit as it affects the Applicant was not initiated by due process of law and it is incompetent.
In effect, the Notice of Preliminary Objection has challenged the Jurisdiction of the trial High Court to hear the suit, said to have been commenced without regard to due process. The trial Court agreed with the submissions made by Counsel to the objectors hence the Court sustained the Preliminary Objection, argued on the 8th August, 2007, vide the Ruling delivered on the 16th August, 2007 where the trial Court also set aside the Writ of Summons and declined jurisdiction in the matter. The Ruling under reference is contained at pages 70 – 81 of the record of appeal.
It is against this Ruling and Order, the appeal was lodged to this Court vide the Notice of appeal of four (4) grounds and filed on the 15th February, 2016. Shorn of the particulars, the four (4) grounds of appeal, now reflected at pages 87 – 90 of the record of appeal, are reproduced hereinunder, namely:
“GROUND ONE
The learned trial Judge erred in law by holding that service on a Company could only be validly effected at the registered office of a Company, and consequently declaring as defective, null and void, the service of the Writ of Summons and Amended Statement of Claim on the 1st Respondent (then as 1st – 3rd Defendants) at their principal place of business within jurisdiction in Zaria.
GROUND TWO
THE LEARNED TRIAL Judge erred in law when she held that the issuance of the Writ of summons in this suit was defective, null and void on the basis of alleged contravention of the provisions of Section 97 and 99 of the Sheriffs and Civil Process Act CAP S6 Laws of the Federation of Nigeria 2004 and Order 5 Rule 6 of the High Court of Kaduna State (Civil Procedure) Rules 1987.
GROUND THREE
The learned trial Judge erred in law when she held that the 1st Respondent (then as 1st – 3rd Defendants) are not estopped from complaining about service of the Originating Processes on them despite having subsequently taken several steps in the proceedings before the lower Court.
GROUND FOUR
The learned trial Judge erred in law when she held that the Writ of Summons and the Amended Statement of Claim filed in this Suit was not initiated by due process of law”.
After the transmission of both the main record of appeal and the additional record, the Appellants filed their joint brief of argument. By the said brief filed on 2nd August, 2019 and deemed on 9th April, 2019, the Appellants raised three (3) issues for determination of Court, namely:
“(1) Whether the learned trial Judge was right when he held that service of Court processes on a Company can only be effected at the registered office of the Company. (Distilled from Ground 1);
(2) Whether the learned trial Judge did not misconstrue the provisions of Section 99 of the Sheriffs and Civil Process Act (“SCPA”) and Order 5 Rules 6 and 14 of the High Court of Kaduna State (Civil Procedure) Rules 1987 when he held that the Writ of Summons was defective (Distilled from Ground 3); and
(3) Whether the 1st Respondent had not waived its right to complain about defective service, having entered appearance, joined issues and actively participated in the proceedings beyond trial Stage (Distilled from Ground 2)”
As can be seen from the three (3) issues raised above, no issue was raised or formulated from ground 4 of the Notice and grounds of appeal. The said ground 4 from which no issue was formulated or derived is deemed abandoned and the same should be struck out. I so order.
Talking about briefs of argument, the Respondents herein have not filed any, notwithstanding that the brief of argument for the Appellants was served on them. The effect for failing to file any brief means that this appeal can only be considered and determined based on the issues raised and canvassed in the Appellants’ brief of argument only.
ISSUE NO. 1
It has been argued for the Appellants under issue No. 1 that the trial Court was wrong in its reasoning and conclusion. With particular reference made to the ruling, the subject of this appeal, to the effect that the Writ of Summons which originated the Suit was “defective” on account of failure by the Appellants to obtain leave to serve the process out of jurisdiction at the Registered Office of the 1st Respondent, was not in tune with the prevailing law, that is, Section 78 of the Companies and Allied Matters Act. It was argued for the Appellants that although the trial Court premised its decision/ruling on Section 78 of the Act, the Court got it wrong by the interpretation it accorded to that provision hence the Court arrived at a conclusion which is erroneous. Section 78 of the Companies and Allied Matters Act, it is argued, makes provision on the manner for effecting service of Processes of Court and documents on Companies and Corporations but that the trial Court wrongly relied on the decision in Mark v. Eke (2000) All FWLR (Pt. 2000) 1455 and Kraus Thompson Organization Ltd v. University of Calabar (2004) 9 NWLR (Pt. 879) 634 to hold that all processes of Court meant for service on the 1st Respondent ought have been served at the Registered Office of that Company.
This reasoning of the Court, it is argued, is not in tandem with the clear provisions of Section 78 of the CAMA. Learned Counsel would rather rely on the interpretation given to the said Section 78 of CAMA in decisions such as: Nigerian Arab Bank Ltd v. Felly Keme Nigeria Ltd (1995) 4 NWLR (Pt. 387) 100, 108; Bello v. National Bank of Nig. Ltd (1992) 6 NWLR (Pt. 246) 206, 215; Mobil Producing Nig. Unlimited v. Effiong (2011) LPELR 9055 (CA); Power Holding Coy. Of Nigeria v. Attorney General, Sokoto State (2014) LPELR – 23825 (CA) wherein Section 78 of CAMA was considered. We were urged to hold that the reasoning and conclusion arrived at the Court below on the interpretation of Section 78 CAMA was absurd.
I have considered those submissions made by the learned counsel for the Appellants. Section 78 of the Companies and Allied Matters Act is the pivot, upon which the Ruling appealed against revolve. The trial Court relying on the decision in Mark v. Eke (supra) and Section 78 of the Companies and Allied Matters Act, ruled that the Writ of Summons which originated the Suit, ought to have been served at the Registered Office of the 1st Respondent i. e in Lagos and not at the branch office in Zaria.
There is the need thus, to take another look at Section 78 of the Companies and Allied Matters Act. It provides thus:-
“78. A Court process shall be served on a 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” (words underlined for emphasis)
The provision referred to above envisages two (2) types of documents for purposes of service on Companies. The first, belongs to the category of documents known as Court Processes and the second category, are documents other than Court Processes. There is thus a differentiation between what is termed as “a Court Process” and “any other document” within the meaning of Section 78 of the Companies and Allied Matters Act.
A “Court Process” even though not defined in the Act (CAMA), is to my mind, something akin to a document which forms part of the record of the Court or documents issued by the Courts. Such “process” can only be served on a Company in the manner provided for, in the relevant Rules of Court in line with Section 78 of the Companies and Allied Matters Act. By that same provision, “any other document” can be served on the Company by leaving it or sending it to the registered address of the Company.
The Civil Procedure Rules in existence, at the time this Suit was filed at the High Court of Kaduna State, is the High Court (Civil Procedure) Rules of Kaduna State 1987 and by the same, provisions are made on the manner by which service can be effected on Companies and Corporations at or under Order 12 Rule 8, which provide thus:
“When the Suit is against a corporation or a company authorised to sue or be sued in its name or in the name of an officer or trustee, the Writ or other document may be served, subject to the enactment establishing such Corporation or Company under which it is registered as the case may be, by giving same to any Director, Secretary or other principal officer or by leaving it at the office of the Corporation or Company”
Section 78 of CAMA and Order 12 Rule 8 of High Court (Civil Procedure) Rules, read together, thus allow service of “Court process” to be effected at the office of the Company or Corporation and it does not matter whether it is the Registered Office of the Company or the Head Office or the Branch Office or by whatever name called, so far as it is the office of the Company or Corporation in question. That to my mind is the intent of the draftsman when that provision was enacted. It is meant to ease the process of service of Court Processes on Companies or Corporations. See: Bello v. National Bank of Nigeria Limited (1992) 6 NWLR (Pt. 246) 206, 215; Nigerian Arab Bank Ltd v. Felly Keme Nigeria Limited & Anor. (1995) 4 NWLR (Pt. 387) 100, 108.
Section 78 of CAMA does not admit of any ambiguity and so the provision must be given its ordinary and natural meaning, hence this Court at different forai did consider and interpreted Section 78 of CAMA and Order 12 Rule 8 to give effect to those provisions. See decisions in: (1) Mobil Producing Nigerian Unlimited v. Effiong (2011) LPELR – 9055 (CA); (2) UBN Plc v. Orharhluge (2000) 2 NWLR (Pt. 645) 495; (3) NewsWatch Communications v. Atta (2000) 2 NWLR (Pt. 646); (4) Daewoo Nig. Ltd v. Uzoh (2008) All FWLR (Pt. 399) 456; (5) Power Holding Company of Nigeria v. Attorney General, Sokoto State (2014) LPELR – 23825 (CA). In Power Holding Company of Nigeria v. Attorney General, Sokoto State (supra), this Court held thus:
“The general view that has been consistently expressed and adopted by this Court in matters of service of processes on companies is that the Companies and Allied Matters Act, 1990 has made provisions that eliminated the rigorous and cumbersome procedure for service under the Act of 1968 by permitting service under the domestic rules of Court. thus the various decisions have consistently been to permit service of processes at the office of the Company not necessarily being the registered office, hence the decisions of this Court in Bello v. N.B.N (1992) 6 NWLR (Pt. 246) 26; U.B.N Plc v. Orharhuge (2000) 2 NWLR (Pt. 645) 495; Newswatch Communications v. Attah (2000) 2 NWLR (Pt. 646) 495; Daewoo Nig. Ltd. v. Uzoh (2008) All FWLR (Pt. 399) 456 among others”.
It therefore follows that service of a Court process effected on the 1st – 3rd Defendants, now the 1st Respondent, at their branch office in Zaria, a place within the jurisdiction of the High Court of Justice of Kaduna State, was good and proper service, the same being, in compliance with Section 78 of the CAMA and Order 12 Rule 8 of the High Court (Civil Procedure) Rules of Kaduna State, read together.
The trial Court thus went off target when it held that the Writ of summons was defective so far as the same was not served at the Registered Office of the Respondents, nor leave obtained to serve that process outside the jurisdiction of the Court.
I do not know how the Court below arrived at that conclusion because, a calm or careful reading of the Writ of Summons taken out by the Appellants did not, in any way, indicate that the Writ of summons was intended to be served at Registered Office of the Respondent in Lagos, a place outside the jurisdiction of the trial High Court of Kaduna State. Rather, by the Writ or the amended Writ of Summons, the address of service on the Defendants was given as Sabon Gari, Zaria a place within the jurisdiction of the trial High Court.
The trial Court in its ruling further referred to paragraphs 3 -5 of the amended statement of claim to hold that the registered office of the 1st Respondent is at Lagos and the 1st Respondent should have been served at that Lagos Office upon leave sought and granted.
I have myself considered paragraphs 3, 4 and 5 of the amended Statement of claim. There is nowhere in those paragraphs of the amended Statement of claim that the issue of “registered office” was pleaded and referred to. The trial Court on its own, suo motu, made it an issue and thus, imported new facts or new information into the case presented by the Appellants vide the amended Writ of Summons and the amended Statement of claim. This Court in Power Holding Company of Nigeria v. Attorney General, Sokoto State (supra), held as follows:
“There is nothing in Order 12 Rule 8 which has earlier referred to the word “registered” in relation to the enactment, to suggest that the word “registered” has been inadvertently omitted by the drafters of the law in respect of the “office of the corporation or company”. It is wrong to read into an Act of parliament words which are not there in the absence of clear necessity. See AWOLOWO V. SHAGARI (1979) NSCC 87 AT 134. The function of the Court is to interpret a statute in the light of the language used. See TANKO V. THE STATE (2009) 4 NWLR PART (1131) 430 where Niki Tobi J.S.C. said this; “A Court of law cannot go beyond the language used in a Statute to examine the possible of the application of a statute particularly when the language and not stressed to accommodate the possible or likely effect of the statute. The only hire of the Judge is to interpret a statute and not its likely consequences”
It is not within the province of the trial Court to import new facts or information into the case put up by the parties to arrive at a decision which is absurd, as in this case, on appeal. Such decisions cannot be allowed to stand. See: FRN v. Osahon & Ors. (2006) 5 NWLR (Pt. 995) 361; Amagalmated Trustees v. Associated Discount Ltd. (2007) 15 NWLR (Pt. 1056) 118; Lawal v. G. B. Ollivant (Nig.) Ltd (1972) 3 SC 124, 137.
It is not the case of the Plaintiffs/Appellants that the amended Writ of Summons or other processes of Court were intended to be served at the registered office of the Respondents as was the case under the old regime of the Companies Act of 1968. Section 36 of that Act provides that:
“A document may be served on a Company by leaving it at, or sending it by post to, the registered office of the Company”.
Times have changed and this is exemplified by the new order, i. e, Section 78 of the Companies and Allied Matters Act, 1990 Cap C20, LFN, 2004.
The trial Court ought not to have resorted to the old Order in the face of a clear and subsisting provision of Section 78 of CAMA which regulate the manner by which Court processes can be served on Companies and other Corporate Bodies.
The trial Court, it would appear, further got carried away by the obiter dictum in the case of Mark v. Eke (supra) by which the apex Court, per Musdapher J.S.C. (as he then was) opined that the failure to serve processes at a place where the service of that process is required, is a failure that goes to the root of the case. That indeed is the law, however a calm reading of the facts and issues before the Supreme Court in Mark v. Eke (supra) show clearly that issue of service of a Court process on a Company at the Registered Office was not an issue before the Court in that case. That statement or opinion of Musdapher, J.S.C., in Mark v. Eke, not being the Ratio decidendi of the case before the Court, is not and cannot constitute a binding authority on this Court. See: Salami v. NNN Ltd (1999) 13 NWLR (Pt. 634) 315, 330.
The complaint covered by the Preliminary Objection taken at the trial Court was not for lack of service at all, of the Writ of Summons and the amended Statement of claim on the Defendants/Respondents. The Respondent were indeed served with processes that originated the suit and service was effected at their office in Zaria.
Given the fact that the 1st – 3rd Defendants and now the 1st Respondent were indeed so served with the relevant Court processes, the trial High Court ought to have overruled the Preliminary Objection and proceed thereafter, to hear the case on the merit but it failed. It is for this and other reasons earlier addressed in this discourse that I am inclined to resolve issue No. 1 in favour of the Appellants.
Having come to this conclusion, I do not think there is the need to address issue Nos. 2 and 3 identified in the Appellant’s brief of argument as separate issues. The simple reason for this, is that issue Nos. 2 and 3, no longer arise in the light of the conclusion I have arrived at under issue No. 1. They are appendages to the main issue No. 1 already dealt with.
This appeal on the whole succeeds and the same is allowed. The Ruling delivered at the High Court of Kaduna State on the 16th august, 2007 upholding the Preliminary Objection of the 1st Respondent in Suit No. KDH/Z/48/2007 is set aside and in its place is entered this Judgment allowing this appeal.
This case in Suit No. KDH/Z/48/2007 is remitted to the Hon. Chief Judge of Kaduna State for reassignment to another Judge of the State High Court for hearing de novo. Parties to bear their respective costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother SAIDU TANKO HUSAINI J.C.A., and am in agreement with the judgment.
Service of a Court process, in contradistinction to service of any other document can be effected by leaving it at any office of the corporation or the company. See First Bank of Nigeria Ltd v. Njoku (1995) 3 NWLR Part 384 page 457 at 478 – 479 Para E — G per Orah J.C.A. It has indeed been held that where service of process is delivered to a third party who delivers it to the principal members of the company, this amounts to personal service. See Panache Communications Ltd v. Mrs. Rebecca Aikhomu (1994) 2 NWLR Part 327 Page 420 at 431 para B — G per Sulu Gambari J.C.A. The entire purpose of service, I hold, is to bring the process to the attention of the party against whom the writ is issued.
Courts should and indeed are turning away from technicalities which only tend to hamstring justice.
I also allow the appeal and set aside the Ruling of the lower Court I abide by the consequential orders made by my learned brother.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read in advance the judgment delivered by my Learned brother, SAIDU TANKO HUSAINI, J.C.A. I agree with him that the preliminary objection which terminated the suit at the lower Court was wrongly sustained.
This appeal therefore has merit, and is hereby allowed. The ruling of the lower Court is hereby set aside; and the case remitted to the state chief Judge for re-assignment to another Judge for hearing and determination.
Appearances:
Bayo Adetomiwa, Esq. For Appellant(s)
Dr. P. A. Ocheme, Esq. – For the 1st Respondent.
Dr. K. A. Adedokun, Esq. – For the 2nd Respondent. For Respondent(s)
