SHEPHERED CONSTRUCTION COMPANY LIMITED v. MR. J. I. KINGSTON
(2014)LCN/6802(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of January, 2014
CA/L/310/2001
RATIO
WHETHER FAILURE TO SERVE A PROCESS RENDERS A PROCEEDING A NULITY
Thus the failure to serve a process is not merely an irregularity but a fundamental defect which renders the proceedings a nullity. See Obimonure v. Erinosho (1966) 1 All N.L.R. 250 at 252; Scot-Emuakpor v. Ukavbe (1975) 12 S.C. 41 at 47; Odita v. Okwudinma, (1969) 1 All N.L.R. 228; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6 at 26″
See also Third Eye Communication Ltd. and Ors. v. Ishola (supra) at 555, following Emuakpor v. Ukavbe (1975) 12 S.C. 41 at 46, Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Wimpey Ltd. and Anor. v. Balogun (1986) 3 NWLR (pt.28) 324 and Leedo Presidential Motel v. B.O.N. Ltd. (1998) 10 NWLR (pt.570) 353. Per JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
SHEPHERED CONSTRUCTION COMPANY LIMITED Appellant(s)
AND
MR. J. I. KINGSTON Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from a ruling by the High Court of Lagos State, in the Lagos Judicial Division, holden at Lagos (the court below) setting aside its judgment given in default of entry of memorandum of appearance plus the failure to file statement of defence by the respondent. The said default judgment that was set aside by the court below was entered in favour of the appellant against the respondent.
Concisely rendered, the appellant was contracted by the respondent to renovate the house of the respondent situate at number 32C Cameron Road, Ikoyi, Lagos. The total contract sum was N1, 803,433.75 (one million, eight hundred and three thousand, four hundred and thirty three naira seventy five kobo). The sum of N987, 000.00 was later paid to the appellant by the respondent for satisfactory renovation work done on the premises by the appellant.
At the end of the renovation of the premises, the unpaid balance of the agreed sum of money for the renovation work stood at N644, 636.12 kobo. The respondent did not pay the balance of the contract sum to the appellant. The appellant sued at the court below for the recovery of the balance of the contract sum.
By order of the court below for substituted service on the respondent which was obtained by the appellant, the respondent was served all the relevant originating court processes by pasting them on the entrance gate of the respondent’s premises at No. 32C Cameron Road, Ikoyi, Lagos. Acting on the proof of substituted service, the court below entered judgment in default of appearance and defence for the sum of N654, 291.12 against the respondent in favour of the appellant.
The respondent’s application for an extension of time to set aside the said judgment and, also, for the setting aside of the said judgment on the ground that he was not served the relevant court process before judgment was entered against him was heard on the merit and was, accordingly, granted by the court below which occasioned the appeal.
The appellant expressed his dissatisfaction with the said decision of the court below by filing a notice of appeal with two grounds of appeal on 27-6-2000. In a brief of argument filed on 09-06-03, but deemed properly filed on 23-06-05, the appellant raised two issues for determination as follows –
“1. Whether the learned trial Judge was right in granting the Respondent’s Application for extension of time within which to apply to set aside the judgment and setting aside the judgment entered in the suit on the 6th day of December, 1999.
2. Whether the raising of the issue of Practice Directive suo motu by the learned trial Judge without affording the parties an opportunity of being heard was not a breach of the Appellant’s constitutional right of fair hearing enshrined in section 36(1) of the 1999 Constitution”.
In arguing on the first issue, the appellant agitated that the court below was wrong to consider the two separate and distinct prayers for extension of time to set aside the judgment and for the setting aside of the judgment in its ruling when each of the prayers deserved individual treatment as was held in the case of Williams and Ors. v. Hope Rising Voluntary Funds Society (1982) NSCC (Vol.13) 36; that an application for extension of time to take any procedural step is not granted as a matter of course but on acceptable or good/substantial reason(s) furnished by the applicant vide Bank of Baroda v. Mercantile Bank Ltd. (1987) 2 NWLR (pt.60) 233 at 239, Ratman v. Curmarasary (1965) 1 W.L.R. 8, Williams and Ors. v. Hope Rising Voluntary Fund Society (supra) at 40; that although the respondent was 45 days out of time in bringing the application which by Order 33 rule 4 of the High Court of Lagos State (Civil Procedure) Rules 1994, (the Rules of the court below) was to be brought within 6 days of the entry of judgment by the court below, the crux of respondent’s reason for not filing the application at the court below gathered from paragraphs 5, 7, 9 and 10 of his affidavit was that he was not served the court process for the suit and did not therefore know of its pendency when there was proof of service showing the respondent was served the relevant process of court by substituted means (pasting) which was prima facie proof that the respondent was put on notice of the pending suit vide Order 7 rule 15(1)(b) of the Rules of the court below read with the cases of Schroder v. Major (1989) 2 NWLR (pt.101) 1 at 12, Attorney General of Anambra State v. Okeke (2002) 12 NWLR (pt.782) 603, Mohammed v. Mustapha (1993) 5 NWLR (pt.292) 222 at 232: and that the respondent having not shown good reason for explaining his default in filing memorandum of appearance and statement of defence as well as the reason for the delay in applying for extension of time to set aside the judgment of the court below together with facts to show that the appellant would not be prejudiced for embarrassed if the judgment is set aside and a re-hearing ordered as well as the fact that the appellant’s case is manifestly insupportable and that the respondent’s conduct from the service of the originating process on him throughout the proceedings deserved sympathetic consideration vide the case of Williams and Ors. v. Hope Rising Voluntary Fund Society (supra), the court below was wrong to grant the respondent’s prayers for extension of time to set aside its judgment and for the setting aside of its judgment and ordering a re-hearing of the suit on the merit.
The contention of the appellant on the second issue for determination considered the testimony of the bailiff, one Mr. Isiaka Adigun, who admitted in his oral testimony in the court below that the was aware of the Practice Directive by the then Chief Judge of Lagos State, Ayorinde, C. J., that a bailiff effecting substituted service of any process of court must have his picture taken while making the substituted service which the court below relied upon to grant the application of the respondent for extension of time to set aside its judgment and for the setting aside of the said judgment on the premise that the said Practice Direction was breached by the bailiff when the said practice Direction did not exist, nor was the court below right to raise the issue suo motu which it used as the suo motu and decided by the court below rampart for granting the application without affording the parties the opportunity to address it on the issue contrary to the constitutional right of the appellant to fair hearing enshrined in section 36(1) of the 1999 constitution read with the cases of Katto v. CBN (1999) 6 NWLR (pt.607) 390 at 411, Ajuwon v. Akanni (1993) 9 NWLR (pt.316) 82 at 198 – 199 and Adigun v. Attorney General of Oyo State (1987) 1 NWLR (pt.53) 678; consequently the appellant advocated for the appeal to be allowed and the ruling of the court below set aside and the judgment that was set aside be restored.
The’ respondent’s brief of argument dated 04-11-2003 and filed on 5-11-03 but deemed properly filed on 22-03-2012, raised three issues for determination as follows –
“1. Whether or not the respondent was entitled to an order setting aside the judgment of the lower court given against the respondent in default of appearance and his filing a defence to the action.
2. Whether the Practice Direction as a guide to the court is binding on legal profession on matters of practice and procedure. And whether the learned Justice of the lower court was right in raising the issue of propriety of taken picture when pasting court processes in compliance with the Practice Direction.
3. Whether the lower court was right by relying on oral evidence in order to resolve the conflict in the affidavit and counter affidavit filed by both the Respondent and the Appellant”.
The third issue (issue 3) was, however, abandoned by the respondents at the hearing of the appeal and is hereby formally struck out.
It was argued by the respondent that the issue of the court below considering the two prayers for extension of time to set aside the judgment of the court below and for the setting aside of the said judgment was not taken by the respondent at the court below, therefore the respondent who did not seek and obtain leave of the court to raise the fresh issue on appeal should not be permitted to ventilate it in the present appeal vide the cases of Oforlete v. State (2000) 12 NWLR (pt.601) 415 at 425, Salami v. Mohammed (2000) 9 NWLR (pt.673) 469 at 471, Araka v. Ejeagwu (2000) 15 NWLR (pt.692) 684 at 694; that the respondent as defendant at the court below was not served the motion on notice for default judgment and was, therefore right to bring the application for extension of time to set aside the default judgment and for an order setting it aside vide the cases of Sanusi v. Ayoola (1992) 9 NWLR (pt.265) 275 at 279 and ACB Plc v. Losada (Nig.) Ltd. (1995) 7 NWLR (pt.405) 26 at 31 read with Order 10 rule 11 of the rules of the court below which is impair materia with Order 32 of the Rules of the court below, 1972 considered in the case of Sanusi v. Ayoola (supra).
It was also argued that from the facts presented by the respondent at the court below, the respondent became aware of the fact that the judgment was entered against him on 19-01-2000 when the bailiffs of the court below came to enforce the judgment at which time he was out of time to apply for the setting aside of the judgment therefore he was obliged to file the application for extension of time to set aside the judgment and for the setting aside of the judgment which by the case of Sanusi v. Ayoola (1992) 9 NWLR (pt.205) 275 at 279 can be heard and determined together in one ruling with priority given to the consideration of the prayer for extension of time before embarking on the prayer for the setting aside of the judgment which was followed by the court below in the ruling sought to be set aside in the present appeal; that considering the totality and facts of the circumstances of the case the appellant was neither embarrassed nor prejudiced by the order setting aside the judgment as the suit had not been heard on the merit and the respondent had filed a viable defence together with a counter-claim in the suit, therefore the court below exercised its discretion judiciously and judicially in granting the application, all the more so the respondent conduct upon becoming aware of the case showed his desire for justice to be done in the case showing the respondent satisfied the requirements for the granting of the application vide Sanusi v. Ayoola (supra), Mohammed v. Husseini (1998) 14 NWLR (pt.584) 108 at 112 – 113, Urhobo v. Oteri (1999) 2 NWLR (pt.589) 147 at 149, ACB Plc v. Losada (Nig.) Ltd. (1995) 7 NWLR (pt.105) 26 at 35.
It was further argued that the issue of non compliance with the practice Directions arose in the cross-examination of the bailiff that said he had effected substituted service by pasting the relevant court process on the premises of the appellant and with the uncontroverted evidence of the bailiff extracted under cross-examination admitting that he breached the practice Direction by not taking his picture at the time he effected the court process by substituted service, the court below was right to rely on the said evidence to hold that there was a breach of the Practice Directions, consequently it is wrong for the appellant to contend that the court below raised the issue of non compliance with the said Practice Directions and, that, the Practice Directions guide the court in the pursuit of justice therefore the court below was in order to rely on the Practice Directions, which the bailiff conceded exist, to resolve the application in favour of the respondent vide the cases of N.P.A. v. Okoro (1995) 6 NWLR (pt.403) 510 at 515, Ifeanyichukwu Osunde and Co. Ltd. v. Akhigbe (1999) 11 NWLR (pt.625) 1 at 3, Akpan v. Umoh (1999) 11 NWLR (pt. 627) 349 at 355, Ivienagbor v. Bazuaye (1999) 9 NWLR (pt.620) 552 at 554 – 555, Bayol v. Ahemba (1999) 10 NWLR (pt.623) 381 at 383, Agbahomovo v. Eduyege (1999) 3 NWLR (pt.594) 170 at 176, Nwoko v. Onuma (1990) 3 NWLR (pt. 136) 22 at 25.
The respondent also argued that in light of conflicting affidavit evidence from the appellant and the respondent on whether the respondent was served with the relevant court process, the court below was right to call oral evidence from the process server to resolve the conflict vide the cases of University Press Ltd. v. Martins (Nig.) Ltd. (2000) 4 NWLR (pt.654) 584 at 591, Akinsete v. Akindutire (1966) 1 All N.L.R. 147, Falobi v. Falobi (1976) 9 – 10 S.C. 1, Nwosu v. Isesa (1990) 2 NWLR (pt.135) 688.
The respondent completed his arguments by urging for the appeal to be dismissed and the ruling of the court below setting aside the default judgment earlier entered in favour of the appellant be affirmed.
In my respectful opinion, the two issues formulated by the appellant encompass the respondent’s issues for determination and, also, embrace the grounds of appeal on account of which I prefer and follow the appellant’s issues for the discussion.
The respondent was forty-five (45) days out of time at the point in time that he applied on motion on notice for the judgment to be set aside.
And in applying for the remedy the respondent incorporated in the body of his motion paper in pages 54 – 55 of the record a prayer for extension of time within which to apply for the setting aside of the judgment and, also, for an order setting aside the judgment. The prayer for extension of time was necessary for the respondent to ventilate the reason(s) why he was out of time in applying for the setting aside of the judgment. It is after crossing the hurdle for extension of time that the respondent would tackle the second follow-up prayer for the setting aside of the judgment.
Consequently, the respondent was right to combine the two prayers for extension of time to set aside the judgment and for the setting aside of the judgment as prayers (1) and (2) of the motion paper (page 54 of the record). Such was the case in Sanusi v. Ayoola and Ors. (1992) 9 NWLR (pt.265) 275 at 292 where the Supreme Court held per the lead judgment of Karibi-Whyte, J.S.C., (as he was) that –
“As I have already pointed out, this appeal rests on the proper construction of the provisions of Order 32 rule 4 (of the Rules of the court below). The following conditions which are admitted are all essential to the application of the rule. First, the applicant did not appear when judgment was delivered. Secondly, he did not make his application within six days of the delivery of the judgment.
Thirdly, he did not apply for an extension of time for a longer period to make the application. These are the criteria laid down under rule 4, Order 32, enabling applicant to apply to set aside a judgment given in his absence”.
There is therefore no substance in the appellant’s contention that the court below was wrong to combine the two prayers for extension of time to set aside the judgment and for the setting aside of the judgment in its ruling when the two prayers were properly conjoined in the application or motion paper filed by the respondent which entitled the court below aright, in my view, to take them in one fell swoop or in one package in the said ruling.
The affidavit in support of the application for extension of time to apply for the setting aside of the judgment had explained in paragraphs 5 – 10 thereof (page 57 of the record) that service of the relevant process of court was not effected on the respondent before judgment was entered against him in default of appearance and statement of defence. The appellant countered paragraphs 5 – 10 of the affidavit (supra) upon which the court below heard the evidence of the bailiff that said he had effected the service to clear the conflicting affidavit evidence and came to the conclusion that the bailiff did not effect the said service. The approach taken by the court below to resolve the conflicting affidavit evidence of service of the relevant court process on the respondent by hearing the evidence of the bailiff accorded with the standard practice for resolving material conflicts of that nature. See Falobi v. Falobi (1976) 1 NMLR 169.
The bailiff, a Mr. Isiaka Adigun, had stated in his testimony in pages 92 – 93 of the record that he had effected service of the writ of summons, statement of claim, motion for judgment and an order of court by pasting them at the entrance of the fence surrounding the office at 32 Cameron Road Ikoyi and the bailiff went on to state under cross-examination by Mr. Kotun for the 2nd respondent at the court below inter alia that –
“I am aware of the practice directive that I must take a photograph at the scene while pasting court processes for substituted service. I did not follow the procedure. I did not drop the court papers with a security man”.
The court below held in page 97 of the record that because the bailiff did not follow the said Practice Direction there was doubt that he served the relevant court process by substituted service. For convenience, I copy below the portion of the holding of the court below to that effect –
“However, he (the bailiff) conceded that he did not take photograph of himself while pasting the materials for service on both occasion contrary to the Practice Directive of the Honourable Chief Judge, Late Hon. Justice Ligali Ayorinde that the picture of the bailiff shall be taken while pasting the documents on the place provided for in the order. The bailiff has not done this.
The benefit of the doubt is now tilted in favour of the Defendant. I will therefore resolve it in favour of the Defendant”.
The court, below did not, therefore, believe the bailiff that he effected the substituted service of the relevant court process on the respondent.
The court below had the unique advantage of the watching the demeanour of the bailiff in the course of his testimony before it came to the conclusion disbelieving his evidence that he effected substituted service of the court process in question on the respondent. An appellate court is not in the same position as the court below to believe or disbelieve the said witness, the bailiff. See Tanko v. Echendu (2011) 18 NWLR (pt.1224) 253 at 280 to the effect that the Court as an appellate Court cannot substitute its finding for that of the court below on facts, which finding was based on the belief of the court below; and Obodo v. Ogba (1987) 2 NWLR (pt.54) 1 at 12 – 13 to the effect that no appellate court can believe or disbelieve a witness it never saw or heard.
The bailiff had acknowledged the existence of the Practice Direction in question. The court below was therefore entitled to take judicial notice of its existence as a subsidiary legislation under section 74(1)(a) of the Evidence Act (now section 122(2)(a) of the Evidence Act, 2011). As stated in the case of Omokuwajo v. Federal Republic of Nigeria (2013) 9 NWLR (pt.1359) 300 at 332, though a court would be wrong to decide on issues not raised by the parties, without giving the parties the opportunity to be heard, it would not be necessary to afford the parties a hearing when the court raises an issue suo motu or on its own motion if the issue relates to the court’s own jurisdiction; if both parties are or were not aware of or ignored an enactment or subsidiary legislation i.e., or that is to say where, by virtue of statutory provision, the court is expected to take judicial notice under section 73 later 74 now 122(2)(a) of the Evidence Act; and if on the face of the record serious questions of the fairness of the proceedings is evident. The case of Dankwa and Ors. v. The King (1951) 13 W.A.C.A. 134 at 137 following the old English case of Ex Parte Markham 34 J.P. 150 to the effect that a Judge is presumed to know the law unless there is something in his decision which gives a contrary indication.
I find nothing of substance in the bare contention of the appellant unsubstantiated by legal authorities that the Practice Direction in issue does not exist. To clear any lingering doubt the court below referred to the Practice Direction as issued by Ligali Ayorinde, Chief Judge Lagos State. A solemn statement by a Judge in a judgment or ruling is also given great weight and efficacy. See Nwizuk and Ors. v. Eneyok and Ors. (1953) 14 W.A.C.A. 354 at 355.
It appears certain to me that the issue of non compliance by the bailiff with the Practice Direction emerged from the evidence of the bailiff under cross-examination by the respondent’s learned counsel which entitled the court below to discuss it in the ruling appealed from. See Finnih v. Imade (1992) 1 NWLR (pt.219) 511 where the Supreme Court held that a Judge is justified to discuss any relevant legislation in his judgment or ruling even if it was not raised by any of the parties.
The failure to serve the relevant court process being a question of fact (see Third Eye Communications Ltd. and Ors. v. Ishola (1999) 2 NWLR (pt.592) 549 at 555 – 556), the court below was right to assure itself whether there was proper service of the relevant process on the respondent by calling for the oral testimony of the bailiff to clear the controversy from the conflicting affidavit evidence that respondent was served the relevant court process. The insistence of compliance with the Practice Direction in question by the bailiff by the court below was to ensure transparency in the substituted service of the court process, as the photograph of the bailiff effecting the substituted service would lend credence to the fact that service of the process was indeed carried out and obviate doubt arising from the dubious handling of the service of court process by bailiffs, in my view.
Considering the fact that the court below was convinced that the bailiff did not serve the court process on the respondent by substituted service and; also, considering the fact that appellant has been unable to persuade me that the court below was wrong in disbelieving the bailiff that he effected substituted service of the relevant court process on the respondent, I affirm the stance of the court below that the respondent was not served the relevant court process before judgment was entered against him in his absence.
It is trite that the lack of service of the originating process on the respondent definitely robbed the court of the jurisdiction to entertain the action and enter judgment against the respondent, as rightly held by the court below. See Okoye and Anor. v. Central Point Merchant Bank Ltd. (2008) 7 S.C.N.J. 153 at 161 – 162 thus –
“I have considered the address of counsel for the parties.
The very fundamental issue in this appeal is that of service and I would start my deliberation with this issue of whether or not the defendant/respondent was served. It is settled that service of originating processes such as the writ of summons on the defendant is a fundamental condition precedent to the court’s exercise of its jurisdiction to hear and determine the suit. This is so because any judgment or order given against a defendant without service is a judgment or order given without jurisdiction and is therefore null and void. See Alhaji J.A. Odutola v. Inspector Kayode (1994) 2 N.W.L.R. (pt.324) 1 at 15. Thus the failure to serve a process is not merely an irregularity but a fundamental defect which renders the proceedings a nullity. See Obimonure v. Erinosho (1966) 1 All N.L.R. 250 at 252; Scot-Emuakpor v. Ukavbe (1975) 12 S.C. 41 at 47; Odita v. Okwudinma, (1969) 1 All N.L.R. 228; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6 at 26”
See also Third Eye Communication Ltd. and Ors. v. Ishola (supra) at 555, following Emuakpor v. Ukavbe (1975) 12 S.C. 41 at 46, Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Wimpey Ltd. and Anor. v. Balogun (1986) 3 NWLR (pt.28) 324 and Leedo Presidential Motel v. B.O.N. Ltd. (1998) 10 NWLR (pt.570) 353.
The respondent thus gave good and substantial reason – failure to serve the originating process plus other relevant process on the respondent – for the failure to apply within time to set aside the judgment and for the setting aside of the judgment. Besides, the respondent had put in an arguable defence in his statement of defence in pages 80 – 82 of the record and had shown that he was not dilatory or tardy in bringing the application which was promptly filed upon discovery that judgment had been entered against him behind his back, vide the supporting affidavit in pages 56 – 59 of the record, showing the respondent had good reason to be absent from court and good reason (non service of the process on him) for the delay in bringing the application; that there was no undue delay (45 days) in bringing the application; that the respondent upon his discovery of the case showed diligence in trying to get the judgment set aside – see Williams and Ors. v. Hope Rising Voluntary Funds Society (1982) N.S.C.C. 36 at 42. Accordingly, I have no cause to disturb the decision of the court below in setting aside the judgment at stake.
On the whole, I find no merit in the appeal and hereby dismiss it and affirm the ruling of the court below (Oyefesobi, J.) granting the respondent’s application for an extension of time to set aside the judgment and for setting aside the judgment together with the consequential orders of the court below setting aside the steps taken by the appellant to enforce the judgment in issue. The appellant shall pay N30,000 costs to the respondent. I commend Mr. Tunde-Olowu for the appellant and Ms. Bashorun for the respondent for the well prepared arguments in the appeal which I found helpful in the discourse.
RITA NOSAKHARE PEMU, J.C.A.: I had read in draft, the Judgment just delivered by my brother JOSEPH SHAGBAOR IKYEGH JCA.
The learned trial Judge’s decision to grant the Respondent’s application for extension of time to set aside the Judgment and for setting aside the Judgment was in order.
The exercise of the Court’s discretion was done judicially and judiciously, and I see no need to reserve same.
The appeal is dismissed. I abide by the consequential order made as to costs.
CHINWE EUGENIA IYIZOBA J.C.A.: I had the privilege of reading in advance the lead judgment just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH JCA.
I agree with his reasoning and conclusions that the appeal lacks merit and should be dismissed. I also dismiss it and affirm the ruling of the lower court. I abide by the consequential orders in the judgment including the order as to costs.
Appearances
Mr. A. Tunde-OlowuFor Appellant
AND
Ms. T. Bashorun (with Miss O. Salvador).For Respondent
