T. DELAK DISTRIBUTION SERVICE LIMITED & ANOR v. MR. ODJEGBA UGBOWANKO
(2018)LCN/12273(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of December, 2018
CA/L/1229/2016
RATIO
COURT AND PROCEDURE: ISSUANCE OF AN ORIGINATING SUMMONS
“However, issuance of an originating process such as a writ of summons, is distinct, different and separate from the service of the same processes and each is regulated by different sets of rules or laws as indicated earlier on. In the case of Owners, MV Arabella v. N.A. I. C. (supra) the apex Court, per Ogbuagu, JSC, stated the law that: ‘… issuance of civil process and service of the same, are distinct though inter-related steps in civil litigation. A Writ may be valid while its service, may suffer from some defect?. That where a writ of summons has been regularly issued without compliance with the Act, what is void and to be set aside is the service and not the writ itself.’ Adegoke Motors Ltd. v. Adesanya (1989) 5 SCNJ, 80, (1989) 3 NWLR (109) 250 @ 292-6 and Nwabueze v. Okoye (1988) 4 NWLR (1991) 664, (88) 10-11 SCNJ, 60 were referred to by the learned Law Lord.” PER MOHAMMED LAWAL GARBA, J.C.A.
COURT AND PRROCEDURE: WHO IS A NECESSARY PARTY TO THE SUIT
“A necessary party to a suit is a party who is not only interested in the subject matter of the proceedings, but also a party in whose absence the suit or case could not be fairly, completely, effectually and finally decided or determined by a Court. See Green v. Green (1989) 3 NWLR (1961) 480; Babayeju v. Ashamu (1998) 9 NWLR (567) 546; Mobil Oil, Plc. v. D. E. N. R. Ltd (2004) 1 NWLR (853) 142; Adefarasin v. Dayekh (2007) 11 NWLR (1044) 89.” PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE
“Proper evaluation of evidence involves a consideration of the totality of the material evidence, weighing and estimating its credibility and conclusiveness on the facts in dispute and ascription of probative value or worth to support a decision or finding by a Court. See Mogaji v. Odofin (1978) 4 SC, 91; Nneji v. Chukwu (1996) 10 NWLR (478) 265; Chukwu Const. Co. Ltd. v. Uwechia (2000) 2 NWLR (643) 92; Ajeigbe v. Idowu (2011) 17 NWLR (1276) 422; Akinbade v. Babatunde (2017) LPELR-43463(SC).” PER MOHAMMED LAWAL GARBA, J.C.A.
INTERPRETATION: ELEMENT OF WAIVER
“…Tobi, JCA (as he then was) in the caseCarribean Trad. & Fidelity Corp v. NNPC (1992) 7 NWLR (252) 161 @ 185, enunciated on the concept of waiver when he said: – ‘Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not do so at all. But once his conduct shows the trend, a Court of law will hold that he has waived his right.’ See also Odua Invest. Co. Ltd v. Talabi (1997) 10 NWLR (523) 1, (97) 7 SCNJ, 600; Auto Import Export v. Adebayo (2005) 19 NWLR (959) 44; Eze v. Okechukwu (2002) 12 SC (Pt. II) 103.” PER MOHAMMED LAWAL GARBA, 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
1. T. DELAK DISTRIBUTION SERVICE LTD
2. MR. AYO ADELAKUN Appellant(s)
AND
MR. ODJEGBA UGBOWANKO Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
By Writ of Summons and Statement of Claim dated 12th July, 2011 filed before the High Court of Lagos State (High Court), the Respondent claimed against the Appellants:
(a) The sum of N2,150,000 (Two Million, One Hundred and Fifty Thousand Naira) only being the balance of the sum outstanding and unpaid debt to the Claimant/Applicant as at the 30th June, 2010 in respect of Return on Investment and Principal sum granted to the Defendants/Respondents to shore up their Mobil Oil Products distributorship business.
(b) Interest on the said sum of N2,150,000 (Two Million, One Hundred and Fifty Thousand Naira) only at 21% per annum from 30th June 2010, until judgment is given and thereafter at the post-judgment rate of 21% per annum until debt is fully liquidated.
(c) Cost of this Action assessed at N500,000 (Five Hundred Thousand Naira) only.
The Appellants denied the claims and after the close of pleadings, the case went to trial at the end of which, the High Court entered judgement in favour of the Respondent on the 28th June, 2016. Dissatisfied with the judgment, the Appellants brought this appeal vide the Notice of Appeal filed on the 8th July, 2016 and in the Appellant’s brief filed on 21st March, 2017 submitted the following issues for determination:
1. Whether the Lower Court had the requisite jurisdiction to hear and determine the suit at the lower Court in spite of Respondent’s refusal and/or failure to first seek and obtain the leave of the lower Court before the issuance of the writ of summons dated the 12th day of July, 2011? (Distilled from Ground 1 of the Notice of Appeal)
2. Whether the Respondent’s action was competent in view of his failure to make the mandatory endorsements required for the validity of originating processes meant to be issued and served outside Jurisdiction of Court? (Distilled from Ground 2 of the Notice of Appeal)
3. Whether the Judgment of the lower Court herein appealed was predicated upon a proper evaluation of all material facts placed before the lower Court? (Distilled from Ground 3 of the Notice of Appeal)
4. Whether the 2nd Appellant was a necessary party to the suit at the lower Court? (Distilled from Ground 4 of the Notice of Appeal).”
Four (4) issues are submitted for decision by the Court, without any indication of the grounds of appeal they are distilled from, in the Respondent?s brief filed on the 10th April, 2017. They are thus:
i. Whether the Defendants/Appellants were properly served with the originating processes in accordance with the Lagos State Civil Procedure Rules.
ii. Whether there are proper parties before the Court.
iii. Whether the learned trial judge properly evaluated the evidence in the case before giving judgement.
iv. Whether the Appellants can raise issue(s) not pleaded at trial and not contained in their notice of appeal in their Appellants’ brief.
The Appellants filed a Reply brief in reaction to the Respondent’s brief on the 14th June, 2017. I would consider the arguments of counsel on the issues together.
Appellants’ Submissions:
Relying on ‘MV Arabella’ v. N. A. I. C. (2008) 8 MJSC, 145 @ 162, it is submitted that before the issue and service of originating processes outside the jurisdiction of a Court, leave of the Court is a condition precedent without which the service would be invalid. Learned Counsel says that the Respondent did not seek nor obtain the leave of the High Court for the service of the writ and statement of claim on the Appellants who reside outside its jurisdiction and so it was deprived of the requisite jurisdiction to adjudicate over the case. Okoye v. Centre Point Merchant Bank Ltd. (2008) 1 MJSC, 76 @ 96; Lafia Local Govt. v. Ex. Gov., Nasarawa State (2013) ALLFWLR (668) 956 @ 988 and Ukpong v. Commissioner of Finance & Econ. Dev. (2007) 1 MJSC 18 @ 43 were cited in support of the submission that the judgement of the High Court is a nullity on ground of lack of jurisdiction to entertain the case.
In addition, it is contended that the writ and statement of claim did not contain the mandatory endorsement required by Section 97 of the Sheriff and Civil Process Act (SCPA) for processes to be served out of the jurisdiction of the High Court and so the issuance and service of the named originating processes were void, relying on ‘MV Arabella’ v. N.A.I.C. (supra). It is the further submission by counsel for the Appellants that the High Court did not properly evaluate the material evidence before it by relying on the Business Partnership Agreement put in evidence as Exhibit CW1, which the 2nd Appellant denied signing. Section 93 (1) of the Evidence Act was cited and it is argued that the High Court erred in finding that the Appellants did not prove forgery and the Court is urged to resolve the issue in favour of the Appellants on the authority of Okuwobi v. Ishola (1973) 3 SC, 43; Olufosoye v. Olorunfemi (1989) 1 NWLR (95) 27 and Sanni v. Dr. Ademiluyi (2003) 2 SCNJ, 197.
It is also the case of the Appellants that the 2nd Appellant was not a necessary party to the action since it involves a business dispute between the Respondent and the 1st Appellant which is a separate legal entity as stated in the case of Companhia Brasileira De Infrastruturia v. Cobec Nig. Ltd (2004) 13 NWLR (890) 376 @ 394-5. The High Court is said to have erred in lifting the veil of the 1st Appellant by sustaining the action against the 2nd Appellant in the absence of fraud and the Court is urged to hold.
Respondent’s Submissions:
It is submitted that the Respondent had sought for and obtained leave of the High Court to issue and serve the processes of the case outside Lagos State as shown at pages 30-34 and 281 of the Record of Appeal. According to Counsel, the High Court Rules, 2012 only make provision for leave to serve writ of summons outside Nigeria and not outside Lagos as they treat Nigeria as a territory.
He contends that the effect of failure to endorse a writ of summons for service outside a State is an irregularity which does not make the writ void as it has been taken care of by Order 5 of the High Court Rules and that the case of MV Arabella v. N. A. I. C. (supra), also reported in (2008) 8 MJSC. 145, does not apply since it was a matter in the Federal High Court which does not have such provision. Citing Associated Discount v. Amalgamated Trustees (2006) 5 SC (Pt. 1) 37-8, Counsel says that the Appellants did not show any miscarriage of justice they suffered in the proceedings they participated in without any objection and so they are looking for technical justice which the Courts have moved away from. He maintains that the Appellants have waived their rights to object since they entered unconditional appearance and took part at all stages of the proceedings before the High Court, relying on Feed & Food Farms Nig. Ltd. v. NNPC (2009) 12 NWLR (1155) 387 @ 401-2.
It is also submitted that the statement of claim of the Respondent disclosed a reasonable cause of action against the 2nd Appellant as the person who negotiated and entered into the agreement, as the Managing Director of the 1st Appellant, the sole signatory of the 1st Appellant?s account and its alter ego, with the Respondent and so is a necessary party to the action without whom the action could not be decided. Iyimoga v. Gov., Plateau State (1994) 8 NWLR (360) 73 @ 80; Oladeinde v. Oduwole (1962) WNLR, 41; Awoniyi v. Reg. Trustees of Rosc. Order (AMORC) Nig (2000) 6 SC (Pt 1) 103 @ 116, 117 and Mozie v. Mbamalu (2006) 7 SC (Pt. II) 25 @ 30 were cited for the submission.
In further argument, learned Counsel says that the High Court properly evaluated the evidence placed before it and the decision in favour of Respondent was inevitable since the Appellant did not discredit the evidence in support of the Respondent?s case which satisfied the provisions of Sections 131, 132 and 134 of the Evidence Act, 2011 on the burden of proof. It is said that the Respondent?s evidence was unchallenged and uncontroverted as mere denial is insufficient and that conclusions based on evidence of witnesses can only be set aside when shown not to be supported by the facts on the authority of Adedeji v. Eso (2012) 13 NWLR (1316) 42; Odusote v. Odusote (2012) 3 NWLR (1288) 478; Olonade v. Sowemimo (2014) 14 NWLR (1428); Okonkwo v. Okonkwo (2014) 17 NWLR (1435) 18.
Lastly, it is said that the Appellants did not raise the issue of fraud before the High Court and did not provide the particulars on the Notice of Appeal to avail them. The Court is urged in conclusion, to dismiss the appeal for want of merit.
In the Appellants’ Reply brief, Order 3 Rule 9 of the High Court Rules was set out and it is submitted that the Respondent had failed to comply with the provisions which are in line with the requirement of the Sheriff and Civil Process Act on endorsement of writ of summons for service outside Lagos State. That the case of MV Arabella v. N.A.I.C. (supra) is applicable while Associated Discount v. Amalgamated Trustee (supra) is distinguishable from the facts of the Respondent’s case since the issue of jurisdiction of a Court cannot be waived by the parties and can be raised at any stage due to its fundamental nature.
Paragraph 7(b) of the Amended Statement of Defence at page 213 of the Record of Appeal was referred to on the issue of fraud raised by the Appellants before the High Court.
Resolution
I have at the beginning of this judgement, stated that the Respondent commenced the action against the Appellants by way of a writ of summons taken out of the Registry of High Court of Lagos State. The Writ of Summons dated 12th July, 2011 which is at pages 1 and 2 of the Record of Appeal, shows that it was addressed to the Appellants (as Defendants) whose address was at “No. 55 KM 8, Portharcourt/Aba Express Road, After AP Petrol Station, Opposite Container Yard, Oyigbo, Portharcourt, Rivers State.”
The Statement of claim, at pages 3-5 of the Record of Appeal and also dated the 12th July, 2011, contains and shows that it was to be served on the Appellants at the same address provided on the Writ of summons, which was at Oyigbo, Port Harcourt, Rivers State. Undoubtedly therefore, the originating processes taken out by the Respondent to initiate or commence the action against the Appellants in the High Court of Lagos State were to be issued and served on the Defendants (Appellants) at an address situate outside the territorial jurisdiction of the High Court of Lagos State. While the issue of initiating processes such as a writ of summons, for the commencement of actions/suits in or before the High Court of Lagos State is to be regulated, governed and be in accordance with the Civil Procedure Rules enacted for the Court pursuant to the provisions of Section 274 of the Constitution, service of originating processes issued in the High Court of Lagos State, outside the territorial jurisdiction of that Court is to be regulated, governed and in accordance with the law or Act enacted for the purpose by the National Assembly by virtue of the provisions of Section 4(2) and (3) as well as Item 57 of Part 1 of the Second Schedule; Exclusive Legislative List, of the 1999 Constitution (as altered); dealing with the service and execution of writs in a State, of civil and criminal processes, etc., of any Court in Nigeria other than a Court established by the State House of Assembly.
The High Court of Lagos State, and in fact all other High Courts in Nigeria, was established by the Constitution in Section 270(1), not by the State House of Assembly and so its processes to be served outside of Lagos State are subject to and are to comply with the provisions of an Act of the National Assembly enacted for the purpose.
The first point of complaint by the Appellants is that the Respondent did not seek and obtain prior leave of the High Court before the issue of the writ of summons in question which failure renders the writ void.
Learned Counsel for the Appellants did not however refer to any Rules of the High Court which makes it mandatory and a condition precedent for leave to be obtained before the issue of an originating summons in the High Court whether or not it was to be served in Lagos State. In fact, in his argument of the issue, he lumped issuance and service of the writ of summons outside Lagos State, together as if they are and mean the same thing. However, issuance of an originating process such as a writ of summons, is distinct, different and separate from the service of the same processes and each is regulated by different sets of rules or laws as indicated earlier on.
In the case of Owners, MV Arabella v. N.A. I. C. (supra) the apex Court, per Ogbuagu, JSC, stated the law that:
‘… issuance of civil process and service of the same, are distinct though inter-related steps in civil litigation. A Writ may be valid while its service, may suffer from some defect?. That where a writ of summons has been regularly issued without compliance with the Act, what is void and to be set aside is the service and not the writ itself.’
Adegoke Motors Ltd. v. Adesanya (1989) 5 SCNJ, 80, (1989) 3 NWLR (109) 250 @ 292-6 and Nwabueze v. Okoye (1988) 4 NWLR (1991) 664, (88) 10-11 SCNJ, 60 were referred to by the learned Law Lord.
The issuance of a writ of summons or other originating processes involves and is completed when the Claimant/Plaintiff pays the requisite fees, the Registrar or other authorized officers of a Court accepts the process, signs and seals it as may be provided for and in compliance with the Rules of the Court in question for the issuance of the process. N. P. A. v. Eyamba (2005) 12 NWLR (939) 409; Idris v. Archibong (2001) 9 NWLR (718) 447 @ 457.
The process of the issuance of a writ of summons is therefore a responsibility and duty exclusively, that of the Registrar or other authorized officer of a Court on presentation of the application in the prescribed form and payment of the requisite fees by a Claimant/Plaintiff or his Legal Practitioner.
For the purpose of this appeal, Order 6, Rules 1 and 2 of the High Court Rules provide that:
1. Preparing Originating Processes Originating Process shall be prepared by a Claimant or his Legal Practitioner, and shall be clearly printed on opaque A4 paper of good quality.
2. Sealing of Originating Process
(1) The Registrar shall seal every Originating Process whereupon it shall be deemed to be issued.
(2) A Claimant or his Legal Practitioner shall, on presenting any Originating Process for sealing, leave with the Registrar as many copies of the process as there are Defendants to be served and one copy for endorsement of service on each Defendant.
(3) Each copy shall be signed by the Legal Practitioner or by a Claimant where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.?
Then Order 3, Rule 9 of the Rules says:
9. Service outside Lagos State
Subject to the provisions of the Sheriffs and Civil Process Act, a Writ of Summons or other Originating Process issued by the Court for service in Nigeria outside Lagos State shall be endorsed by the Legal Practitioner of the Claimant with the following notice:
“This Summons (or as the case may be) is to be served out of Lagos State of Nigeria and in the ?.. State”
As can clearly and easily be seen, these later provisions require that a writ of summons issued by the High Court for service in Nigeria, but outside Lagos State shall be endorsed by the Registrar of that Court that it is to be served out of Lagos State and at the particular State it is to be so served. The duty or obligation to make or provide the endorsement on the writ of summons issued by the High Court of Lagos State to be served or for service on Defendant(s) out or outside of Lagos State, is completely and exclusively that of and placed on the Registrar or other authorized officer of that Court. As a result, both the issuance and the endorsement on a writ of summons to be served or for service outside Lagos State under the High Court Rules, are the official functions, duties and responsibility of the Registrar or other authorized officer of the High Court of Lagos State after the application in the prescribed form and payment of the stipulated fees by a Claimant/Plaintiff or his legal representative/Counsel. Bayero v. Mainasara & Sons Ltd (2006) LPELR-7587 (CA) Adegoke Motors Ltd. v. Adesanya (supra); Ogbunyiya v. Okudo (1979) 6-7 SC, 32 (90) 7 SC (Pt. 1) 66 make provisions for endorsement of writs of summons or other originating processes issued and meant to be served outside the territorial jurisdiction of the individual States, the provisions do not apply to the service of the said processes outside the State from which they were issued and endorsed since the issue of service of the processes between the States, is an item in the Exclusive Legislative List in the Constitution over which the National Assembly is exclusively vested with the necessary legislative power, authority and competence to provide for or legislate on.
In that regard, it is the Act enacted by the National Assembly for the service of a writ of summons or other originating processes issued and endorsed in a State High Court to be served or for service outside the issuing State and in another State in Nigeria, that would apply while the Rules of the High Court?s only apply to the issue and endorsement of such processes. The provisions of Order 3 Rule 9 (of the High Court Rules) above, are copies of the provisions of the Sheriff and Civil Process Act, enacted by the National Assembly for among others, service of initiating processes issued in a High Court of a State in Nigeria, for service in another State in Nigeria. Section 97 of the Act provides that:
“Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say) ”
This summons (or as the case may be) is to be served out of the ?. State (or as the case may be) . and in the State (or as the case may be).
These provisions simply restated and reaffirmed the requirement of the endorsement provided for in the High Court Rules, as shown above which is acknowledged and recognized are that the endorsement required therein, is to be in addition to the endorsement or notice required by the Law of a State where the process was issued as may be provided in the High Court Rules of the State. The practical legal effect is that under both the High Court Rules and the Sheriff and Civil Process Act, a writ of summons or other initiating process issued in the High Court of State to be served or for service or Defendant(s) out or outside the issuing State and in another State in Nigeria, shall have the endorsement by the Registrar or other authorized officer of that Court, that it was to be so served and at the named State at which it to be served.
Apparently, the writ of summons issued in the High Court of Lagos State to be served or for service on the Appellants (as Defendants) whose address for such service was indicated to be at Oyigbo, Port-Harcourt in Rivers State; a place out of and outside Lagos State, does not contain or have the endorsement required by both the Rules of the High Court and the Sheriff and Civil Process Act that it was to be served outside Lagos State.
However, as rightly stated by learned Counsel for the Respondent, the Record of Appeal, at pages 30-34 shows the application dated 12th July, 2011 by the Respondent to the High Court for leave to issue and serve the writ of summons on the Appellants at their address at Port-Harcourt, Rivers State. The application was moved and granted by the High Court as prayed on the 30th January, 2012 as borne out at page 281 of the Record of Appeal. The writ of summons was thereafter; on 27th February 2012, served on the Appellants at their Port-Harcourt, Rivers State address for which leave was sought for and granted by the High Court on the 27th February 2012 to be issued and served at the said address as can be seen from the Affidavit of Service at page 45 of the Record of Appeal.
With the grant of the leave sought by the Respondent for the issue and service of the writ of summons on the Appellants at Port-Harcourt in Rivers State, a place out of Lagos State, the Respondent had done all that was/could reasonably have been expected of him by the provisions of both the High Court Rules and Section 97 of the Sheriff and Civil Process Act on the requirement for the process of initiating and instituting an action before the Court. In the case ofG. Cappa Plc. v. Francis Nnaegbuna & Sons Ltd. (2009) LPELR-8349(CA) Okoro, JCA (now JSC) dealing with a similar situation as in the present appeal, has said:
“Finally, on the issue that there was non-compliance with Section 97 of the Sheriff and Civil Process Act, I do agree with the submission of learned Counsel for the Respondents that it is the duty of the Registrar of the trial Court to endorse the writ and his failure to do his job would not be visited on the litigants who are the Respondents in the instant case.”
His Lordship cited the case of Broad Bank Nigeria Ltd. v. Alh. Olayiwola & Sons Ltd (2005) ALLFWLR (251) 236 @ 262 for the position. See also Duke v. Akpabuyo L. G. (2005) 19 NWLR (959) 130 @ 150-1; Iyizoba v. Olanipekun (1979) 2 FNR, 130 @ 132-3; Alawode v. Semoh (1959) SCNLR, 91 (1959) 4 SC, 27 @ 30; Nicholls v. G. M. Nigerian Railway (1938) 14 NLR, 87 @ 93; SBM Services Nig. Ltd. v. Okon (2004) 9 NWLR (879) 529.
There is therefore no non-compliance with the provisions of Section 97 of the Sheriff and Civil Process Act by the Respondent for the purpose of the issuance and service of the writ of summons out of Lagos State in Rivers State on the Appellants.
The above position as it is, even if the Respondent could be held responsible for the omission, failure or absence of the requisite endorsement on the writ of summons served on the Appellants outside Lagos State, the only legal consequence was to render the service of the writ voidable at the instance of the Appellant on ground of the non-compliance with the requirement for endorsement. I should point out that it is only the endorsement that the writ of summons was to be served outside Lagos State was absent and not the requisite leave of the High Court to issue and serve the writ outside Lagos State and so the validity and competence of the writ of summons was not affected to have in turn, robbed the High Court of the jurisdiction to adjudicate over the case as was decided in the Owners of the MV Arabella v. N. A. I. C. (supra).
In the recent case of P.D.P. v. INEC (2018) 12 NWLR (1634) 533, the apex Court, per Rhodes-Vivour, JSC in the lead judgement stated that: –
When an originating process is served on the defendant and he has an objection to it, he is expected to either: –
(a) Enter an appearance on protest, or
(b) Enter a conditional appearance; and
(c) File a notice motion (sic) asking the Court to set aside the purported writ and service of same on the ground of originating process and service being invalid.
If the defendant does not follow the above procedure, he cannot question the originating process or service on appeal.” See also Adegoke Motors Ltd. v. Adesanya (supra)
Although the learned Law Lord subsequently stated that: –
“Once the Claimant fails to comply with the mandatory provisions in Section 97 (supra) the Court would no longer have jurisdiction to hear the suit”.
I have demonstrated earlier on, that the Respondent had fully and completely complied with the provisions of the Section by applying and obtaining the requisite prior leave of the – High Court to issue and serve the writ of summons out of Lagos State and at Port-Harcourt, Rivers State. In that regard, the principle stated in the case is not applicable to the Respondent who did not fail to comply with the provisions of the section.
On the other hand, there is no record and it is not the case of the Appellants in this appeal that after receipt of the writ of summons in Port-Harcourt, Rivers State, they took any of the steps or procedure enumerated by the apex Court in the case, to object to it or the service effected on them. Rather, the record of appeal shows that the Appellants reacted to the writ of summons and its service on them by unconditional appearance, filing motions and joint statement of defence to the claims against them and participating freely without any objection, however, to the writ and service, in the proceedings of the case before the High Court, including cross-examination of the Respondent and presenting evidence in defence of the claims against them.
From the actions of the Appellants after being served with the writ of summons in Rivers State and their free participation in the proceedings before the High Court without any complaint in form of an objection to the originating processes of the case against them, they leave no doubt that they had no objection to the processes and had expressly; by conduct, forgone and waived whatever right they had to have challenged the service of the processes on them on ground of absence of an endorsement by the Registrar or other authorized officer of the High Court who issued and sealed them for service outside Lagos State. The consequence of the choice or option taken by the Appellants not to follow the procedure or take the steps enumerated in the PDP v. INECcase (supra) is that they cannot at this stage be heard to question either the writ of summons or its service, having waived their right to do so at the trial. In the case of Ariori v. Elemo (1983) 1 SC, 13 @ 18, Idigbe, JSC defined ?waiver? thus:
“By way of a general definition, waiver- the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which at his option, he could have insisted upon.”
Tobi, JCA (as he then was) in the caseCarribean Trad. & Fidelity Corp v. NNPC (1992) 7 NWLR (252) 161 @ 185, enunciated on the concept of waiver when he said: –
“Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not do so at all. But once his conduct shows the trend, a Court of law will hold that he has waived his right.”
See also Odua Invest. Co. Ltd v. Talabi (1997) 10 NWLR (523) 1, (97) 7 SCNJ, 600; Auto Import Export v. Adebayo (2005) 19 NWLR (959) 44; Eze v. Okechukwu (2002) 12 SC (Pt. II) 103.
In these premises, the challenge or objection to the validity of the writ of summons and the service thereof by the Appellants at this stage is belated and late in the proceedings of the case on ground that they had waived the right to do so having failed to raise it before the High Court and participated freely, fully and completely in the trial.
The Issues 1 and 2 of the Appellants for lacking in merit are resolved against them.
The Appellants have also argued that the High Court did not properly evaluate the evidence before it in arriving at its decision, citing Exhibit CW1, alleged to have been relied on for the decision. According to Counsel for the Appellants, Exhibit CW1 was not shown to have been executed between the parties as the 2nd Appellant’s signature was not proved. In its appraisal of the facts and evaluation of the evidence placed before it by the parties, the High Court at pages 248-9 of the Record of Appeal had stated that :
Claimant led evidence to show that the business relationship culminated into a Memorandum of Agreement between the parties (Exhibit CW1) prepared by Corely Acholonu & Co., a Firm of Legal Practitioners to which the 2nd Defendant as principal party appended his signature, wherein the parties agreed that a monthly sum of N300,000.00 would be paid to the Claimant as Return on Investment monthly. Consequent upon which the 2nd Defendant was given the sum of N10,000,000.00 only on 1st May 2008 by payment through Zenith Bank Plc. Deposit Slip No. 0443172 into the 2nd Defendant’s Zenith Bank Account No. 6117801295 (Exhibi CW5).
A cursory look at the Exhibt CW1 shows that it was executed by the Claimant and the 2nd Defendant as the Director (a fact which the Defence Witness did not dispute but merely stated under cross examination that the signature does not belong to him). By Exhibit CW5 the sum of N10,000,000.00 was paid into the 2nd Defendant’s account on the same day. Equally, as regards the allegation of forgery; when one examines the signature column of the Director of the 1st Defendant Company under Exhibit CW1 alongside with the signature of the 2nd Defendant as Managing Director of the 1st Defendant Company under Exhibit DW12, it is glaring and beyond dispute that both were signed and executed by one and the same person i.e., the 2nd Defendant in his capacity as Director/Managing Director of the 1st Defendant Company.
The assessment or evaluation of the evidence by the High Court as it relates to Exhibit CW1, above cannot seriously be said to be improper evaluation of evidence on the ground only that the decision, which was the product of the evaluation, was against the Appellants. It should be noted that proper evaluation of evidence by a trial Court entails a correct appraisal of the facts upon which evidence was adduced by the parties, examination and assessment of the material and relevant evidence by placing it on the imaginary scale of justice in order to find which side weighs heavier in terms of relevance, credibility, probability and conclusiveness, drawing necessary inferences and applying the law to reach conclusions or decisions in a case. Proper evaluation of evidence involves a consideration of the totality of the material evidence, weighing and estimating its credibility and conclusiveness on the facts in dispute and ascription of probative value or worth to support a decision or finding by a Court. See Mogaji v. Odofin (1978) 4 SC, 91; Nneji v. Chukwu (1996) 10 NWLR (478) 265; Chukwu Const. Co. Ltd. v. Uwechia (2000) 2 NWLR (643) 92; Ajeigbe v. Idowu (2011) 17 NWLR (1276) 422; Akinbade v. Babatunde (2017) LPELR-43463(SC).
Although it is fashionable for Appellants to allege improper or non-evaluation of evidence by trial Courts in their grounds of appeal to this Court against the decisions of those Courts, it should be noted that merely because a trial Court’s decision was/is not in favour of a party does not mean that the material and relevant evidence placed before that Court was not properly evaluated to arrive at the decision. The burden is imposed by the law on a party who alleges such improper or non-evaluation of evidence by a trial Court before an appellate Court, to demonstrate the particular piece(s) of the evidence in question and show how it was either not properly evaluated or ignored in the decision by a trial Court and it would have been different but for the improper or non-evaluation. See Atolagbe v. Shorun (1985) 1 NWLR (2) 360; Adelumola v. State (1988) 11 NWLR (73) 683 @ 991; Nwokoro v. Nwosu (1994) 4 NWLR (337) 174 @ 194; Okonkwo v. Onovo (1999) 4 NWLR (597) 110; Nkebisi v. State (2010) 5 NWLR (1188) 471.
The High Court properly assessed and evaluated the evidence before it including Exhibit CW1 before arriving at its decision.
There is no merit in the arguments of the learned Counsel for the Appellants on the issue and it resolved against them.
The last issue is whether the 2nd Appellant was/is proper or necessary party to the case before the High Court. Put simply, a proper party in an action is a party who, though not interested in the plaintiffs’ claims is made a party to the case, for some reason(s). A necessary party to a suit is a party who is not only interested in the subject matter of the proceedings, but also a party in whose absence the suit or case could not be fairly, completely, effectually and finally decided or determined by a Court. See Green v. Green (1989) 3 NWLR (1961) 480; Babayeju v. Ashamu (1998) 9 NWLR (567) 546; Mobil Oil, Plc. v. D. E. N. R. Ltd (2004) 1 NWLR (853) 142; Adefarasin v. Dayekh (2007) 11 NWLR (1044) 89.
In the excerpt of the High Court judgement set out above, the 2nd Appellant is shown to be the Managing Director of the 1st Appellant, as admitted in the Joint Statement of Defence filed on the 15th March, 2012 by the Appellants, who entered into the transaction that led to the suit before the High Court and who personally deposed to a Statement on Oath as a witness in the case as a person with personal knowledge of the transaction which he denied. The 2nd Respondent can be said to be the Alpha and Omega; alter ego of the 1st Respondent who ran/run affairs of the 1st Respondent who is not only interested in the subject matter of the suit, but without who, the issues involved in the case could not be fairly, completely, effectually and finally determined or decided by the High Court, on the merit.
The fact that 1st Appellant is a separate legal entity that can sue and be sued does not stop the joinder of the 2nd Appellant as, not only a necessary party, but also a desirable who has an interest in the subject matter and who may be affected by the outcome of the action, since it was into his personal bank account that the investment by the Respondent was paid into and not that of the 1st Appellant. The aggregate of the facts in the Respondent?s statement of claim shows a reasonable cause of action which if proved, would entitle the Respondent to a judicial remedy against the 2nd Appellant along with the 1st Appellant. I find no merit in the issue and is resolved against the Appellants.
In the final result, the resolution of all the issues raised by the Appellants against them leaves the appeal without merit.
It is dismissed on that ground and as a consequence, the judgement delivered by the High Court on the 28th June, 2016 in favour of the Respondent is hereby affirmed in its entirety.
Costs assessed at Five Hundred Thousand Naira (N500,000.00) are awarded in favour of the Respondent to be paid by the Appellants for the prosecution of the appeal.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A., (Hon. P.J.) which I had the honour of reading in advance.
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 MOHAMMED LAWAL GARBA JCA. I agree with his reasoning and conclusion. The appeal is also dismissed by me and I abide by the consequential orders made in the judgment.
Appearances:
Parties absent and not representedFor Appellant(s)
Parties absent and not representedFor Respondent(s)
