TREASURE LINE INTERLINK LIMITED v. AKINOLA OLABODE TAOREED
(2019)LCN/12862(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of March, 2019
CA/IB/315/2011
RATIO
SERVICE: ORIGINATING PROCESS
“It is settled law that service of Originating Process on a party to a proceeding is a fundamental and imperative step in the process of adjudication by a Court of law. It is what ignites or gives vent to the jurisdiction of the Court to entertain the matter and make order that will be valid and subsisting. Therefore it is not an issue of exercise of discretion by the Court because where Originating Process is not served in accordance with the law, it deprives the Court of the requisite jurisdiction to proceed with the hearing of the matter. In the case of MARK VS. EKE (2004) 5 NWLR PART 865 PAGE 54 the Supreme Court held among others that:- Service of the process especially Originating Process is an essential condition for the Court to have competence or jurisdiction to entertain the matter. Further failure to comply with this condition would render the whole proceeding including Judgment entered and all subsequent proceedings based thereon wholly irregular, null and void.” PER JIMI OLUKAYODE BADA, J.C.A.
SERVICE: WHO A PROCESS SHOULD BE GIVEN TO
“A company is not a human being. The appropriate procedure is by giving the Originating Processes to any:-Director, Trustee, Secretary or Other Principal Officer at the registered office of the company or by leaving the document with a human being who must acknowledge receipt of it by endorsing on the document that it was left with him, which was not the case in this appeal under consideration.” PER JIMI OLUKAYODE BADA, J.C.A.
SERVICE: FAILURE TO EFFECT SERVICE OF COURT PROCESS.
“It is trite that service of Court process (Originating Process Inclusive) is a crucial part of the adjudication process. It is the law that failure to effect service of a Court process where required constitutes a fundamental defect.
It goes to the root and lack of same deprives the Court the legal capacity and competence to hear and determine the matter. SeeEMEKA VS. OKOROAFOR & ORS. (2017) LPELR – 41738 AT 31 -32 PARAGRAHS E-B; OKEKE VS. LAWAL & ORS. (2018) LPELR – 43929 AT 20 – 21 PARAGRAPHS E – E; SHA’ABAN VS. SAMBO (2010) 19 NWLR (PT. 1226) 353 AT 360 PARAGRAPHS D-G and AWONIYI VS. REGISTERED TRUSTEES OF AMORC (2000) 10 NWLR (PT. 676) 522.” PER FOLASADE AYODEJI OJO, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
TREASURE LINE INTERLINK LIMITED Appellant(s)
AND
AKINOLA OLABODE TAOREED Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the Ruling of High Court of Justice Oyo State in the Ibadan Judicial Division in suit No:- I/508/2009 Between:- MR. AKINOLA OLABODE TAOREED VS. TREASURE LINE INTERLINK LTD delivered on the 15th day of June, 2011.
Briefly, the facts of the case are that the Plaintiff/Claimant/Judgment Creditor now Respondent before this Court instituted his action against the Appellant through the summary Judgment procedure. The claim was for (N48,350,000.00) Forty-Eight Million, Three Hundred and Fifty Thousand Naira. The Appellant was served the Court processes through substituted means i.e. by pasting same on the last known address of the Appellant at suit G7, Akande Shopping Complex, behind Lagos Garage, Sango Ibadan. This was done with the leave of Court granted on the 19th of February 2010.
The lower Court entered Judgment in favour of the Respondent on the 15th of March 2010 after Appellant had failed to defend the suit within the time allowed by the Rules of the Court.
The Respondent initiated Garnishee Proceedings against eight Garnishees while the 1st, 3rd, 4th and 7th Garnishees were discharged by the lower Court, the Garnishee Order Nisi issued by the lower Court against the 2nd and 6th Garnishees were made absolute on the 13th of April 2011.
The Appellant later filed application to set aside the Judgment of the lower Court.
The lower Court heard the application and delivered its Ruling dismissing the application 15/6/2011.
The Appellant who is dissatisfied with the said Ruling of the lower Court appealed to this Court.
The learned Counsel for the Appellant formulated seven issues for the determination of this appeal.
The said issues are reproduced as follows:-
(A) Is a trial Court at liberty to pick and choose what legal issues raised by a litigant before it to address.
(B) Whether the service of the Originating Process of Court on the Appellant (a Limited Liability Company) by substituted means to wit, by pasting at the last premises of the last known address of the Appellant, was valid at law.
(C) Must a Judgment Debtor who has no notice of the action be shut out simply because there is a proof of service on him in the Court’s file.
(D) Whether a party to a contract that suffers frustration before performance is still entitled to his rights and obligations under the contract,
(E) Whether the Garnishee Proceedings are absolute under any circumstances once commenced.
(F) Whether a trial Court is at liberty to interpolate legal issues not raised by the parties before it.
(G) Is it competent for a trial Court to pronounce on pleadings that are not before it.
The learned Counsel for the Respondent on the other hand formulated a single issue for the determination of the appeal. The said issue is reproduced as follows: –
Whether the learned trial Judge was wrong in dismissing the Defendant/Appellant?s application to set aside the Judgment delivered against it on the 15th day of March 2010.?
At the hearing of this appeal on 6/2/2019 the learned Counsel for the Appellant stated that the appeal is against the Ruling of the High Court of Justice, Oyo State, Ibadan Division delivered on the 15th of June 2011. The Notice of Appeal was filed 16/6/2011 and the Record of Appeal was transmitted on 30/11/2011 and deemed as properly transmitted on 11/1/2018.
The Appellant’s Brief of Argument was filed on 3/5/2013 and deemed as properly filed on 11/1/18.
The learned Counsel for the Appellant also filed the Appellant’s Reply Brief of Argument on 30/10/18 in response to the Respondent’s Brief.
He relied on both the Appellant’s Brief of Argument as well as the Appellant?s Reply Brief of Argument as his argument in urging that this appeal be allowed.
The learned Counsel for the Respondent in his own case also referred to the Respondent?s Brief of Argument filed on 23/5/2018 which was deemed as properly filed on 16/10/2018.
He adopted and relied on the said Respondent?s Brief of Argument as his argument in this appeal and he urged that the appeal be dismissed.
I have carefully gone through the issues formulated for the determination of the appeal by Counsel for both parties. The sole issue formulated on behalf of the Respondent captured the fulcrum upon which the appeal rested. I will therefore rely on the said Respondent?s issue for the determination of the appeal.
ISSUE FOR THE DETERMINATION OF THE APPEAL.
Whether the learned trial Judge was wrong in dismissing the Defendant/Appellant’s application to set aside the Judgment delivered against it on the 15th day of March 2010. (Distilled from grounds 1 and 2).
The learned Counsel for the Appellant stated that the service of the Originating Process of the Court was ordered to be carried out on the Appellant (a Limited Liability Company) by substituted means to wit by pasting at the last known place of abode of the business of the Defendant at suit G7, Akande Shopping Complex behind Lagos Garage Sango, Ibadan, Oyo State.
He contended that by the Provisions of Section 78 of the Companies and Allied Matters Act (CAMA) Court processes can only be served on a Limited Liability Company by delivering same to the Director, Secretary or other Principal Officer or by leaving it at the office. He stated that the clear import of this Provision is that you can only leave the said process at an operative office where there are company Staff and other Officials and not at an office that is closed down for whatever reasons. He relied on the case of: –
MARK VS EKE (2004) 5 NWLR PART 865 PAGE 54
He submitted that the combined effect of Section 78 of the Companies and Allied Matters Act and the Supreme Court authority of MARK VS EKE (Supra) is that the service of the processes of Court in this Appeal on the Appellant, a limited liability company by substituted means is wrong.
The learned Counsel for the Respondent in his own response submitted that the Judgment entered against the Appellant on 15/3/2010 by the lower Court is a final Judgment or Judgment obtained on merit, but not a default Judgment.
He relied on the following cases:-
JOE-DEB VENTURES LTD VS NDIC (2015) ALL FWLR PART 780 PAGE 1323 AT PAGE 1338 PARAGRAPHS B-D,
UMO VS UDONWA (2014) ALL FWLR PAGR 721 PAGE 1604 AT 1617 PARAGRAPH B.
The learned Counsel for the Respondent contended that the Appellant was served with the Originating Process of the lower Court by substituted means. He stated that the processes were pasted on the last known office address of the Appellant at Suit G7, Akande Shopping Complex behind Lagos Garage, Sango, Ibadan Oyo State on the 19th day of February 2010.
He argued further that the Appellant absconded from its lastknown office address to an undisclosed location (without any forwarding address) after collecting huge sums of money from many investors. He relied on the following cases:-OBITUDE VS ONYESOM COMMUNITY BANK LTD (2014) ALL FWLR PART 739 PAGE 1097 AT PAGE 1119 PARAGRAPHS A-F.
CALHORIE LTD VS INTER CONTINENTAL BANK PLC (2014) ALL FWLR PART 723 PAGE 195.
It was submitted further that when the Appellant argued that the amount the Respondent claimed was in excess but failed to state the actual amount it owed the Respondent. He went further in his submission that the Appellant does not have a good defence.
He relied on the following cases:- EPE LOCAL GOVT. VS KESHINRO (2009) ALL FWLR PART 473 PAGE 1257.
OBULOR VS OBORO (2001) FWLR PART 47 PAGE 1004.
UGWUAGBA G. B.LTD VS NWEDIGBO INTERNATIONAL VENTURES LTD (2014) ALL FWLR PART 746 PAGE 548.
NISHIZAWA LTD VS JETHWANI (1984) 12 SC PAGE 234.
TAHIR V. UDEAGBALA HOLDINGS LTD(2005) ALL FWLR PART 240 PAGE 120
VASWANI VS CANDIDE?JOHNSON (2000) 11 NWLR PART 679 PAGE 582.
NITEL PLC VS I.C.I (DIRECTORY PUBLISHERS) LTD (2009) 16 NWLR PART 1167 PAGE 356.
It was also submitted on behalf of the Respondent that the Appellant is a total stranger to the garnishee proceedings therefore he lacks the locus standi to pray the lower Court to stay execution of the garnishee order absolute. He also relied on the following cases:-
UNITED BANK OF AFRICA PLC VS EKANEM (2010) 6 NWLR PART 1190 PAGE 207.
PURIFICATION TECHNIQUES NIG LTD VS AT. GEN. LAGOS STATE (2004) 9 NWLR PART 879 PAGE 665.
The learned Counsel for the Respondent finally urged this Court to hold that the lower Court was right in dismissing the Appellant’s application for setting aside Judgment delivered on the 15th March 2010.
In the Appellant’s reply brief of argument he merely reiterated his earlier submission.
It is not in dispute that the Originating Process in this case at the lower Court was served on the Appellant (a Limited Liability Company) by substituted means i.e. by pasting at the last known place of abode of the business of the Appellant.
It was contended on behalf of the Appellant that the said service is bad in law. But the learned Counsel for the Respondent stated that the Appellant was served with the Originating Processes at the lower Court via substituted means. The said Court Processes were pasted on the last known office address of the Appellant at suit G7, Akande Shopping Complex behind Lagos Garage, Sango, Ibadan Oyo State on 19/2/2010.
The question that comes to mind at this juncture is whether the lower Court had the jurisdictional competence to entertain the Respondent?s suit and enter Judgment when the service of Originating Process is defective.
It is settled law that service of Originating Process on a party to a proceeding is a fundamental and imperative step in the process of adjudication by a Court of law. It is what ignites or gives vent to the jurisdiction of the Court to entertain the matter and make order that will be valid and subsisting. Therefore it is not an issue of exercise of discretion by the Court because where Originating Process is not served in accordance with the law, it deprives the Court of the requisite jurisdiction to proceed with the hearing of the matter.
In the case of MARK VS. EKE (2004) 5 NWLR PART 865 PAGE 54 the Supreme Court held among others that:-
Service of the process especially Originating Process is an essential condition for the Court to have competence or jurisdiction to entertain the matter. Further failure to comply with this condition would render the whole proceeding including Judgment entered and all subsequent proceedings based thereon wholly irregular, null and void.
See also SKENCONSULT (NIGERIA) LTD & ANOTHER VS. UKEY (1981) LPELR 3072 SC.
In this appeal under consideration the Appellant was served by substituted service i.e. by pasting the said processes at the last known place of abode of the business of the Appellant who was the Defendant at suit G7 Akande Shopping Complex behind Lagos Garage, Sango, Ibadan, Oyo State. It must not be forgotten that the Appellant is a Limited Liability Company.
The Company and Allied Matters Act by Section 78 made provision on how to serve documents generally on any company Registered under it. By this a Court Process is served on a company in the manner provided by the Rules of Court. A service on a company must be at the registered office of the company, and it is therefore bad and ineffective if it is done at a branch office of the company or pasting it at the last known place of abode.
A company is not a human being. The appropriate procedure is by giving the Originating Processes to any:-Director, Trustee, Secretary or Other Principal Officer at the registered office of the company or by leaving the document with a human being who must acknowledge receipt of it by endorsing on the document that it was left with him, which was not the case in this appeal under consideration.
I am of the view that the service of Originating Processes on the Appellant was not in accordance with the law.
The mode of service ordered by the lower Court constitutes a grave infraction of the law regulating service of Court Processes on companies.
Therefore since the service of the Originating Processes effected on the Appellant was incurably defective, the Judgment of the lower Court, founded on fundamentally flawed service cannot stand.
Consequent upon the foregoing I hold that no proper service was effected on the Appellant. This lone issue is therefore resolved in favour of the Appellant and against the Respondent.
In the result with the resolution of this lone issue for determination in this appeal in favour of the Appellant and against the Respondent, it is my view that there is merit in this appeal and it is allowed.
In the circumstance, the Judgment of the lower Court in suit No. I/508/2009 MR. AKINOLA OLABODE TAOREED VS. TREASURE LINE INTERLINK LTD delivered on 15/3/2010 and the Ruling delivered on 15/6/2011 are hereby set aside. In its place this suit is hereby sent to the Chief Judge of Oyo State who shall assign the suit to another Judge who will hear the suit on its merit.
There shall be no order as to costs. Each of the parties are to bear their own costs.
Appeal allowed.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the judgment delivered by my learned brother, Jimi Olukayode Bada, JCA.
My learned brother has comprehensively considered and resolved the lone issue that came up for determination in this appeal. I agree with the reasoning and conclusion arrived at by my learned brother.
I therefore agree that there is merit in this appeal. It is accordingly allowed. I abide by the consequential orders made therein including the order on costs.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege to read before now the judgment just delivered by my learned brother, Jimi Olukayode Bada, JCA and I agree with the reasoning and conclusion therein.
It is trite that service of Court process (Originating Process Inclusive) is a crucial part of the adjudication process. It is the law that failure to effect service of a Court process where required constitutes a fundamental defect.
It goes to the root and lack of same deprives the Court the legal capacity and competence to hear and determine the matter. SeeEMEKA VS. OKOROAFOR & ORS. (2017) LPELR – 41738 AT 31 -32 PARAGRAHS E-B; OKEKE VS. LAWAL & ORS. (2018) LPELR – 43929 AT 20 – 21 PARAGRAPHS E – E; SHA’ABAN VS. SAMBO (2010) 19 NWLR (PT. 1226) 353 AT 360 PARAGRAPHS D-G and AWONIYI VS. REGISTERED TRUSTEES OF AMORC (2000) 10 NWLR (PT. 676) 522.
In the instant appeal, the Appellant’s grouse is that the judgment which gave rise to the garnishee proceedings was given without jurisdiction because the Originating Processes were not served in accordance with the law. It is the contention of the Respondent that the Appellant, a Limited Liability Company was served via substituted means in violation of the law. Service of Court processes and documents on corporate entities is regulated by the provisions of Section 78 of the Companies and Allied Matters Act Cap C20, Laws of the Federation 2004 which provides thus:
“78. A Court Process shall be served on a company in the manner provided by the rules of Court and any document may be served on a company by leaving it at or by sending it by post to its registered office or head office of the company.”
Service of Court process on the Appellant, a corporate entity can therefore only be effected by service of same on any of its directors, secretary, trustee or any of its principal officers and not by substituted means.
In the case ofMARK VS. EKE (2004) LPELR – 1841 AT 30 PARAGRAPHS A-B Musdapher, JSC held thus:
“The need for substituted service arises because personal service cannot be effected on natural or juristic persons, the procedure for substituted service cannot be made to a corporation like the Appellant herein.”
It is a settled principle of law that where the law prescribes the method of doing a thing, that method and no other method must be followed. See YAKI VS. BAGUDU (2015) 18 NWLR (PT. 1491) 288 AT 348 PARAGRAPHS E – F; SAUDE VS. ABDULLAHI (1989) 4 NWLR (PT. 116) 387 AT 422; ADHEKEGBA VS. MINISTER OF DEFENCE (2013) 17 NWLR (PT. 1382) 126 AT 147,PARAGRAPHS D -F.
Proper service of an originating process is a condition precedent for the exercise of a Court’s jurisdiction in a matter. In DURBAR HOTEL PLC VS. ITYOUGH & ORS. (2016) LPELR – 42560 AT 7 PARAGRAPHS A – F, the Supreme Court per Rhode-Vivour JSC held thus:
“Indeed in MADUKOLU & ORS. VS. NKEMDILIM (1962) 2 NSCC (PT. 374), this Court Per Bairamian JSC made some observation on jurisdiction and the competence of a Court when His Lordship said that a Court is competent when
1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no members is disqualified for one reason or another;
and
2. The subject matter of the case is within the jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
See also SLB CONSORTIUM LTD VS. NNPC (2011) 4 SC (PT. 1) PG. 86; NNPC VS. CLIFCO NIG. LTD (2011) 4 SC (PT. 1) PG. 46; DANGANA & ANR. VS. USMAN & 4 ORS. (2012) 2 SC (PT. 111) PG. 103.”
It follows that where a case is commenced before a Court without fulfilling the condition precedent, such a Court will lack the requisite competence to hear and determine the matter placed before it. Failure to effect service of the Originating Processes on the instant Appellant in accordance with the law robs the lower Court the requisite jurisdiction to entertain the suit and I so hold. The service on the Appellant vide substituted service is not good service. The subsequent judgment and order made by the lower Court in the suit is liable to be set aside.
It is in the light of the foregoing and the fuller reasons given in the lead judgment delivered by my learned brother Jimi Olukayode Bada, JCA that I also find merit in this appeal and allow it. I abide by the consequential orders made in the lead judgment.
Appearances:
MR. D. O. TAKONFor Appellant(s)
MR. H. U. LANASE, with him, F. O. AKENROYE, ESQ.For Respondent(s)
