TRIQUEST ENERGY LTD & ANOR v. FCMB PLC
(2021)LCN/15674(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, January 08, 2021
CA/L/936/2013
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
1. TRIQUEST ENERGY LIMITED 2. ALHAJI MUMUNI DAGAZAU APPELANT(S)
And
FIRST CITY MONUMENT BANK PLC RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT CAN ADOPT ISSUES FORMULATED BY AN APPELLANT IN HIS BRIEF OF ARGUMENT
For this reason, I will be adopting the issues as formulated by the Appellants in their brief. The law permits me to do this vide Federal Housing Authority & Anor vs. Mr Kalejaiye (2010) 19 NWLR (Pt. 1226)147; Emeka vs. The State (2014) All FWLR (Pt. 751) 1480; Okereke vs. State (2016) LPELR-26059 (SC); Kabirikim & Anor vs. Emefor & Ors (2009) LPELR-902 (SC). PER TOBI, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
Jurisdiction is the foundation or the power of the Court to entertain any suit. This is conferred by law. It is the life wire of the Court in determining an action. It is so important that any action taken by a Court or decision reached without it amounts to a nullity. See Okonkwo vs. INEC (2006) EPR Vol. 2 page 99 and Owner of the MV ‘Arabella’ vs. Nigeria Agricultural Insurance Corporation NSCQR Vol. 34 2008 page 1095. Jurisdiction is key in any judicial process. This is the power bestowed on the Court to handle a particular matter. In FBN Ltd vs. Abraham (2008) LPELR-1281 (SC), the apex Court per Aderemi JSC at page 15 held:
“The question may be asked: what is the meaning of jurisdiction by judicial authorities, jurisdiction is the authority by which a Court has to decide matters that are laid before it for litigation or take cognizance of matters presented in a formal way for its decision. Let it be said that the limits of this authority are by practice imposed by statute or law under which the Court is constituted. It may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited.”
Similarly, in Saraki vs. FRN (2016) LPELR-40013 (SC), the Supreme Court re-emphasized this, per Mohammed JSC when the apex Court held:
“The meaning of the word jurisdiction has been accepted as the authority which a Court or Tribunal has to decide matters presented in a formal way for its decision. Where a Court does not have jurisdiction, there is nothing before it to adjudicate. The limits of its authority as in the present case may be prescribed, as it has been prescribed by Statute under which the Court or Tribunal was created. Concisely stated, jurisdiction means the authority which a Court or Tribunal has to decide matters contested before it or to take cognizance of matters presented in a formal way for its decision as stated by this Court in National Bank vs. Shoyoye (1977) 2 SC.181. To put it in another way, a Court or Tribunal can only adjudicate on a controversy between litigants before it when it has jurisdiction to do so. See KALIO v. DANIEL KALIO (1975) 2 SC. 15.” PER TOBI, J.C.A.
WHETHER OR NOT THE COURT HAS JURISDICTION OVER A PARTY WHO HAS NOT BEEN SERVED COURT PROCESSES
It is trite principle of law that a Court has no jurisdiction over a party who has not been served with the Court processes especially the originating processes. See CGG (Nig) Ltd vs. Aminu (2015) 7 NWLR (Pt. 1459) 577; Total E & P Nigeria Ltd vs. Emmanuel &Ors (2014) LPELR-22679 (CA). PER TOBI, J.C.A.
THE POSITION OF LAW ON SERVICE OF COURT PROCESSES ON A CORPORATE BODIES
The CAMA in Section 78 made provision to the effect that service of processes on corporate bodies must comply with the High Court Civil Procedure Rules applicable in that state. See Nigerian Bottling Company Plc vs. Chief Uzoma Ubani (2014) 4 NWLR (Pt. 1398) 421; Dr N.E. Okoye & Anor vs. Centre Point Merchant Bank Limited (2008) 7-12 SC 1; Kraus Thompson Organisation Limited vs. University of Calabar (2004) 4 SC (Pt. 1) 65. For completeness and clarity, I reproduce the provisions of Section 78 of the CAMA:
“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.”
In the circumstance, the relevant provision for service in the case in this appeal is Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules. By this provision, service on a corporate body such as the 1st Appellant, must be delivered to a director, secretary, trustee or other senior, principal or responsible officer of the organization or by leaving it at the registered, principal or advertised office or place of business of the organization within jurisdiction. See FBN Ltd vs. Njoku (1991) 3 NWLR (Pt. 384) 457; NBC Plc vs. Ubani (2014) 14 NWLR (Pt. 1398) 421; Skye Bank (Nig) Plc vs. Okpara (2015) 17 NWLR (Pt. 1489) 613.
The provision of the law both statutory and case law on service on a company is as stated above. The officers of the company that need to be served the processes for it to be valid in the first instance are the Directors, the Secretary of the company or the Trustees. Apart from these officers, other persons that can be served in the company which will amount to proper service are senior, principal and responsible officers of the company. This leaves room for different interpretation as to who are senior, principal and responsible officers of the company. The category of staff which will fall into this class is not stated or defined in the law. The reasonable deduction will be that such staff should be management or senior staff of the company. The term responsible will be interpreted along the terms of senior and principal staff of the company. This is based on the rule of interpretation that once general word follow specific words, the general word will be interpreted along the line of the specific words. See Inakoju & Ors. vs. Adeleke & Ors. (2007) LPELR-1510 (SC); Kraus Thompson Organisation vs. N.I.P.S.S (2004) LPELR-1714 (SC). PER TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is predicated upon the ruling of Hon. Justice L.B. Lawal-Akapo of the High Court of Lagos State in Suit No. LD/616/2012 – First City Monument Bank Plc vs. Triquest Energy Limited & Anor delivered on 31/5/2013. The said ruling which is found on pages 496-498 of the record is with respect to the three (3) notices of preliminary objection filed by the Appellants (then Defendants) against the action of the Respondent (then Claimant). The brief set of facts at the lower Court is that the Respondent vide a Writ of Summons and a Statement Claim instituted an action at the lower Court against the Appellants to claim a loan sum advanced to the 1st Appellant which was personally guaranteed by the 2nd Appellant. After pleadings closed, the 1st Appellant by a notice of 20/6/2012 raised a preliminary objection to the suit on grounds of jurisdiction, misjoinder and abuse of Court process. The Appellants also by a notice of 3/9/2012 filed another preliminary objection against the suit of the Respondent on the grounds of irregular service and jurisdiction.
In the course of the proceedings, the Respondent filed a motion dated 1/11/2012 for the lower Court to enter judgment as per its claims against the Appellants, for failure of the Appellants to file their defence. The 1st Appellant consequently by a notice of 28/11/2012 raised a preliminary objection to the motion on notice on the ground that the application is premature and same will deny the Appellants fair hearing. The applications came up for hearing on 5/2/2013 and after hearing all three applications, the lower Court then adjourned to 27/2/2013 for ruling on all three applications but same was delivered on 31/5/2013. On the day of the said ruling, the lower Court held specifically on page 498 of the record thus:
“On the whole, I find no merit in the objections. They are dismissed with N25,000.00 cost in favour of the Claimant against the Applicants.”
The Appellants dissatisfied with the ruling of the lower Court and exercising their right of appeal filed two notices of appeal. The extant notice of appeal of the Appellants is the amended notice of appeal dated 13/6/2013 but filed 22/4/2014 containing four grounds of appeal. The grounds bereft of their particulars are:
GROUND 1
The learned trial Judge erred in law when he held that the 1st Appellant’s Notice of Preliminary Objection dated 3rd September, 2012 and the 2nd Appellant’s Notice of Preliminary Objection dated 20th June, 2012 each failed to show and prove that any of the conditions precedent for a Court to assume jurisdiction over a case, as aid down in the case of Madukolu v. Nkemdilim (1962) ANLR page 581 at 583, was breached without a proper consideration of the totality of the objections by the Appellants.
GROUND 2
The learned trial Judge delivered the ruling dated 31st day of May 2013 outside the 90 day statutory period stipulated by Section 294 of the Constitution of the Federal Republic of Nigeria 1999 as Amended and thereby lost his impression of the case made out by the Appellants in their preliminary objections by reason of which the Appellants suffered a miscarriage of justice.
GROUND 3
The learned trial Judge erred in law when he entertained the Appellants’ Preliminary Objection dated 28th November, 2012 which was directed at the Respondent’s Motion for Judgment in default of defence dated 11st November, 2012 but failed to dismiss the Respondent’s said application for default judgment for being an abuse of Court process.
GROUND 4
The learned trial Judge erred in law when he held that on the whole he finds no merit in the objections without considering all the issues raised in the Appellants’ preliminary objections and therefore dismissed same.
The Appellants’ brief of argument was filed on 11/4/2014 and deemed as properly filed and served on 3/11/2020 was settled by Harry O. Ukaejiofor Esq. In their brief, Appellants raised the following issues for determination viz:
1. Whether any of the conditions laid down by the Supreme Court in Madukolu v Nkemdilim that robs a Court of Jurisdiction was shown in the objections of the Appellants at the Court below to have been breached?
2. Whether the Appellants suffered a miscarriage of justice was suffered by the Appellants (sic) as a result of the Ruling which was delivered outside the constitutional time frame?
3. Whether the failure of the trial Judge to consider all the issues raised by the Appellants in their dismissed applications is an error in law worthy of allowing this appeal and overturning the decision of the lower Court?
On issue one, it is the contention of the Appellants’ counsel that the objection of the Appellants at the lower Court was premised on the conditions laid down by the Supreme Court in Madukolu & Ors vs. Nkemdilim (1962) NSCC 374 @ 360; (1962) All NLR 581 @ 583.Counsel listed out the conditions as stated in that case. It is the further contention of counsel that going by the Supreme Court’s decision in Kalu Mark & Anor vs. Gabriel Eke (2004) 5 NWLR (Pt. 865) 55 @ 61, the order for substituted service of the writ and accompanying processes as well as the purported service of the processes were irregular, defective and bad in law and ought to be set aside as a company cannot be served by substituted means. Counsel referred this Court to the Appellant’s reply on points of law filed in support of their objection at the lower Court in arguing that the jurisdiction of the lower Court was afflicted by an alteration of the Writ of Summons unilaterally made by the Respondent. On this argument, learned counsel for the Appellants contended that the learned trial Judge did not consider the issue of the alteration done by the Respondent; which alteration divested the lower Court of jurisdiction, in arriving at its decision. Counsel stated that had the learned trial Judge considered the above submission with respect to Order 3 Rule 10(2) of the High Court of Lagos (Civil Procedure) Rules 2012, he would have come to a different conclusion on the merits of the objection of the 1st Appellant.
Learned counsel posited that the lower Court had no jurisdiction to entertain the suit against the 2nd Appellant who was improperly joined as the 1st Appellant, being a corporate entity was the one who obtained the loan facility on its behalf. He relied on Odu’a Investments vs. Talabi (1997) 10 NWLR (Pt. 523) 1 @ 58-59; Madukolu & Ors vs. Nkemdilim (supra). Again on this argument, counsel stated that had the learned trial Judge considered the above submission with respect to Order 3 Rule 10(2) of the High Court of Lagos (Civil Procedure) Rules 2012, the trial Judge would have come to a different conclusion on the merits of the objection of the 1st Appellant. In the light of the foregoing, it is the submission of counsel that the action was not initiated by due process of law and urged this Court to so hold.
On issue two, counsel relied on Sections 36 and 294(1) of the Constitution of the Federal Republic of Nigeria 1999 which is to the effect that a judgment must be delivered not later than 90 days after address of counsel and argued that the ruling of the lower Court having been delivered outside the mandatory time frame has resulted in a miscarriage of justice against the Appellants. Counsel relying onUdengwu vs. Uzuegbu (2003) 13 NWLR (Pt. 836) 136 @ 152; Paul Odi & Anor vs. Osafile (1985) All NLR 20; Abdullahi vs. Hedima(2011) 2 NWLR (Pt. 1230) 42 @ 62 argued that the delay in deciding the applications affected the Court’s perception, appreciation and evaluation of the evidence.
On issue three, it is the contention of the Appellants’ counsel that from a review of the decision of the lower Court vis a vis the applications placed before the Court, it is apparent that all the issues placed before the Court by the Appellants were not considered. Amongst these issues, counsel contended that the issue of irregular service and the unilateral alteration done on the Writ of Summons by the Respondent and which in turn affected the jurisdiction of the lower Court were not considered by the lower Court. Placing reliance on Ovunwo vs. Woko (2011) 17 NWLR (Pt. 1277) 546-547; Okonji vs. Njokanma (1991) 7 NWLR (Pt. 202) 131, it is the position of counsel that it is the duty of the lower Court to pronounce on every issue raised before it for consideration as a breach of same leads to miscarriage of justice and breach of the party’s right to fair hearing. Counsel therefore urged this Court to uphold this appeal and grant the Appellants’ reliefs in the notice of appeal.
The Respondent brief filed on 21/11/2016 but deemed as properly filed and served on 3/11/2020 was settled by Adekunle Ayorinde Esq. In the Respondent’s brief, learned counsel raised the following issues for determination:
1. Whether the service of the issued Originating Processes which was effected on the Appellants was proper and in accordance with the relevant laws and the extant rules of Court thus giving the lower Court jurisdiction to entertain the Respondent’s suit?
2. Whether the delivery of the subject matter ruling by the lower Court, only 30 days outside the constitutional time frame has occasioned any miscarriage of justice to the Appellants?
3. Did the lower Court in its ruling of 31st May, 2013 fail to consider all the issues raised by the Appellants?
On issue one, it is the contention of the Respondent’s counsel that against the backdrop of the Appellants’ argument that the suit was not initiated by due process of law, the purpose of service of Court processes is to bring the action to the notice of the other party. It is the argument of counsel that the Appellant’s instant appeal was not in respect of the personal service on the 1st Appellant offending the rule but on the subsequent further additional service by order of substituted service by advertisement. Counsel referred this Court to the fact that by the Appellant’s application to withdraw the objections dated 28/5/2012 and 5/6/2012 they have shown that they had no objection to the state of facts constituting the personal service on the 1st Appellant and the same on the 2nd Appellant by posting. He relied on C.P.C. vs. INEC (2011) 18 NWLR (Pt. 1279) 493 @ 575. It is the submission of counsel that by the act of the Appellants withdrawing their preliminary objection, all subsequent arguments on their preliminary objection dated 3/9/2012 is an exercise in futility. Counsel further submitted that since the lower Court by its earlier ruling had made a definite pronouncement on the preliminary objection of the 1st Appellant on service there was no need to repeat same in the ruling on appeal before this Court. The lower Court itself is not even allowed by law in the circumstance to resurrect and preside over the same issue again and the decision can only be reversed by the appellate Court. For this position, counsel relied on Ayorinde vs. Ayorinde (2004) 13 NWLR (Pt. 889) 83 @ 102 – 103: Local Government Service Commission, Ekiti State & Anor. vs. Owolabi (2014) LPELR. 22457; (2015) 55 N.L.L.R. (Pt. 186) 1 @ 12.
Counsel went at length to contend that the address supplied by the 1st Appellant was where service was affected and same was reflected on the official stamp of the Appellant’s appended on the acknowledgement copy. Counsel relying on Section 78 of the Companies and Allied Matters Act, Cap C20 Laws of the Federation of Nigeria, 2004 contended that the Act does not provide for the mode or compulsory place of service of Court processes on the corporate entity but rather it relies on the provisions of the relevant Rules of Court. He cited NBC Plc vs. Ubani (2014) 4 NWLR (Pt. 1398) 421 @ 450 – 451; NBC Plc vs. Ubani (2009) 3 NWLR (Pt. 1129) 512 @534 – 535; Order 7 Rule 13 (1) of the High Court of Lagos State (Civil Procedure) Rules 2012. It is the submission of counsel that under the High Court Rules of Lagos State the office of the company to be served the originating processes need not be the registered or head office but any of its offices within the jurisdictions of Lagos State. On this note, counsel further submitted that the service of the 1st Appellant at No 13A Ruxton Road, Ikoyi, Lagos is good service as that is one of the places where the 1st Appellant transacted business. Counsel placed reliance on Dauphim Nig. Ltd vs. Manufacturers Association of Nig. (2000) FWLR (Pt. 47) 1127. It is the further argument of counsel that it is not essential for the bailiff himself to give the process physically to the Director’s Secretary, Trustee or other senior or principal officer of the organization or other persons who are required to be served personally but that when same was received by the receptionist or a dispatch officer of the company or an employee, same will be sufficient. He called in aid the cases of Panache Communication Ltd. vs. Aikhomu (1994) 2 NWLR (Pt. 327) 420; Kenfrank (Nig.) Ltd. vs. UBN Plc (2002) 8 NWLR (Pt. 789) 46 @ 61 – 62. The Respondent’s counsel contended that the Appellants having received letters and acted on same at No. 13A Ruxton Road, Ikoyi, Lagos, the Appellants had by their conduct indicated that the said office is their registered office and they are estopped from saying otherwise. Counsel relied on Olalekan vs. Wema Bank Plc (2006) 13 NWLR (Pt. 998) 617 @ 625 – 626; Chief Nicholas Frank Opigo vs. Vankuma Yukwe (1997) 6 NWLR (Pt. 59) 428 @ 441.
It is the contention of counsel that the Respondent having personally served the 1st Appellant, took further steps to serve by way of Newspaper advertisement to avoid any attempt by the 1st Appellant to frustrate the former service or denial of the knowledge of the case, further brought an application for substituted service. Learned counsel further contended that the Mark’s case has no bearing on this present case at hand as from the clear reading of Section 78 of CAMA and Order 7 Rule 5(1) of the High Court of Lagos State Rules, personal service of Court processes cannot be affected as same can be done via substituted means. Relying on Ekele vs. Iwodi (2014) 15 NWLR (Pt. 1431) 557 @ 579; Mfa vs. Inongha(2014) 4 NWLR (Pt. 1397) 343 @ 366; Muazzum vs. Bichi (2010) 12 NWLR (Pt. 508) 517. Counsel posted that the further or additional service on the 1st Appellant by way of advertisement having not been effected renders the lower Court incompetent to adjudicate on the Respondent’s action as same would constitute a voyage on academic exercise. Learned counsel for the Respondent argued that the Appellants having contested or denied that the Court processes were brought to the said 1st Appellant’s company’s knowledge, it does not lie in the mouth of the Appellants to complain of irregularity in service which was in the first instance properly effected on them. He relied on Dr. N.E. Okoye vs. Center Point Merchant Bank Ltd. (supra) @ 352; Vab Petroleum Inc. vs. Momah (2013) 14 NWLR (Pt. 1374) 284 @ 316; Okesuji vs. Lawal (1991) 1 NWLR (Pt. 170) 661.
With respect to the alleged alteration made by the Respondent, it is the contention of Respondent’s counsel that the Appellants are only trying to mislead the Court as going through the record, it will reveal that there is no such alteration. He cited Pere Roberto (Nig) Ltd. vs. Ani (2009) 13 NWLR 522 @ 555; Bawa vs. Balarabe (1999) 6 NWLR (Pt. 605) 61; Kwaptoe vs. Tsenyil (1999) 4 NWLR (Pt. 600) 571; Adebesin vs. State (2014) 9 NWLR (Pt. 1413) 609 @ 646. Counsel posted that where there is evidence that a Director of a limited liability company stood as a surety or personally guaranteed the payment of a loan obtained by a company such Director would be personally liable in addition to the company itself for the repayment of the said loan. He called in aid Afribank (Nig) Ltd. vs. Moslad Enterprises Ltd. (2008) All FWLR (Pt. 421) 877 @ 893.
He submitted that the 2nd Appellant who personally guaranteed the loan facility given to the 1st Appellant by the Respondent, being the directing mind, alter ego, prime mover, Chairman/Chief Executive is a necessary party to the Respondent’s suit before the Court below. He placed before this Court the cases of Pere Roberto (Nig) Ltd vs. Ani (supra); Trade Bank Plc vs. Chami (2003) 13 NWLR (Pt. 836) 158 @ 211. It is the further submission of counsel that the issue whether or not the 2nd Appellant executed a personal guarantee is a matter of evidence to be proved at trial and the Respondent had specifically shown on the record that the 2nd Appellant executed a personal guarantee as security for the loan granted to the 1st Appellant by the Respondent. On the strength of the submission, counsel urged the Court to resolve the issue in favour of the Respondent.
On issue two, it is the contention of learned counsel that a decision of the Court which is delivered later than 90 days of adoption of address contrary to Section 294(1) of the Constitution will only be set aside or treated as a nullity if there is a miscarriage of justice. The Court must be satisfied that the party complaining has suffered a miscarriage of justice. He cited Igwe vs. Kalu (2002) 5 NWLR (Pt. 761) 678 @ 704, 723, 724. It is the submission of counsel that the Appellants have not shown in their brief what and how they suffered any miscarriage of justice in respect of the delay, more so when the applications were decided on affidavit evidence.
On issue three, it is the submissions of counsel that the Appellants contention that the lower Court failed to consider all the points raised in their objections, had no merit. It is the assertion of counsel that it is not in dispute that the crux of the preliminary objections raised by the Appellants before the lower Court was on the issue of compliance of the lower Court to adjudicate on the Respondent’s suit and that the lower Court rightly held that the Appellants failed to show that any of the conditions laid down in the case ofMadukolu vs. Nkemdilim (supra) was breached so as to affect the competence of the lower Court. It is the further submission of counsel that assuming without conceding that the lower Court failed to consider all the point raised by the Appellant, it is not every mistake made in a judgment that will result in the judgment of that Court being set aside on appeal. He relied on FBN Plc. vs. Ozokwere(2014) 3 NWLR (Pt. 1395) 439 @ 466. Finally it is the general submission of learned counsel relying on Kenfrank (Nig) Ltd. vs. UBN Plc (supra) @ 74; Balogun vs. E.O.C.B. (Nig) Ltd. (2007) 5 NWLR (Pt. 1024) 608; UBN Ltd. vs. Salami (1998) 3 NWLR (Pt. 543) 538 @ 545 – 546 that a defendant who does not have a real defence to an action should not be allowed to dribble and frustrate the Plaintiff and dust him out of the judgment he is legitimately entitled to by delay tactics. On this note, counsel urged the Court to dismiss this appeal for lacking in merit.
Before I proceed to the appeal proper, it is instructive to lay a foundation. The judgment of the lower Court is in respect of three separate preliminary objections which emanated from the Appellants. The preliminary objection of 20/6/2012 is aimed at striking out the name of the 2nd Appellant for misjoinder; the preliminary objection of 3/9/2012 is aimed at setting aside the ex parte order for substituted service and also to set aside the service of the Court processes on the 1st Appellant for being irregular and the preliminary objection of 28/11/2012 is aimed at setting aside the motion of the Respondent seeking for judgment in the absence of defence of the case of the Respondent.
I have examined the issues as formulated by counsel to the Appellants and Respondent in their respective briefs and I make bold to say that the issues are one and the same in content and purpose. The Respondent’s issues can conveniently be subsumed into the Appellants’ issues. For this reason, I will be adopting the issues as formulated by the Appellants in their brief. The law permits me to do this vide Federal Housing Authority & Anor vs. Mr Kalejaiye (2010) 19 NWLR (Pt. 1226)147; Emeka vs. The State (2014) All FWLR (Pt. 751) 1480; Okereke vs. State (2016) LPELR-26059 (SC); Kabirikim & Anor vs. Emefor & Ors (2009) LPELR-902 (SC). Another reason I will be considering this appeal on the basis of the issues as formulated by the Appellants is because the Appellants are the ones who are aggrieved by the decision of the lower Court and have thus initiated this appeal, and therefore it is only logical that I consider this appeal on the strength of the issues formulated by them. For completeness, the issues are hereunder reproduced:
1. Whether any of the conditions laid down by the Supreme Court in Madukolu v Nkemdilim that robs a Court of Jurisdiction was shown in the objections of the Appellants at the Court below to have been breached?
2. Whether the Appellants suffered a miscarriage of justice was suffered by the Appellants (sic) as a result of the ruling which was delivered outside the constitutional time frame?
3. Whether the failure of the trial Judge to consider all the issues raised by the Appellants in their dismissed applications is an error in law worthy of allowing this appeal and overturning the decision of the lower Court?
Having reproduced the issues above, I will now proceed to address the issues one after the other starting from issue one. Though the issue is produced above, it will not cause any harm if I reproduce it here again for the free flow of the judgment. The issue reads thus:
Whether any of the conditions laid down by the Supreme Court in Madukolu v Nkemdilim that robs a Court of Jurisdiction was shown in the objections of the Appellants at the Court below to have been breached?
The Appellants’ grouse with the decision of the lower Court as can be gleaned from their issue one is that there are some pre-conditions which the Respondent ought to have fulfilled to cloak the lower Court with jurisdiction but which the Respondent have failed to do and hence, the lower Court had no jurisdiction to entertain the suit of the Respondent. The Appellants’ contention on this issue is based on improper service and misjoinder.
Jurisdiction is the foundation or the power of the Court to entertain any suit. This is conferred by law. It is the life wire of the Court in determining an action. It is so important that any action taken by a Court or decision reached without it amounts to a nullity. See Okonkwo vs. INEC (2006) EPR Vol. 2 page 99 and Owner of the MV ‘Arabella’ vs. Nigeria Agricultural Insurance Corporation NSCQR Vol. 34 2008 page 1095. Jurisdiction is key in any judicial process. This is the power bestowed on the Court to handle a particular matter. In FBN Ltd vs. Abraham (2008) LPELR-1281 (SC), the apex Court per Aderemi JSC at page 15 held:
“The question may be asked: what is the meaning of jurisdiction by judicial authorities, jurisdiction is the authority by which a Court has to decide matters that are laid before it for litigation or take cognizance of matters presented in a formal way for its decision. Let it be said that the limits of this authority are by practice imposed by statute or law under which the Court is constituted. It may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited.”
Similarly, in Saraki vs. FRN (2016) LPELR-40013 (SC), the Supreme Court re-emphasized this, per Mohammed JSC when the apex Court held:
“The meaning of the word jurisdiction has been accepted as the authority which a Court or Tribunal has to decide matters presented in a formal way for its decision. Where a Court does not have jurisdiction, there is nothing before it to adjudicate. The limits of its authority as in the present case may be prescribed, as it has been prescribed by Statute under which the Court or Tribunal was created. Concisely stated, jurisdiction means the authority which a Court or Tribunal has to decide matters contested before it or to take cognizance of matters presented in a formal way for its decision as stated by this Court in National Bank vs. Shoyoye (1977) 2 SC.181. To put it in another way, a Court or Tribunal can only adjudicate on a controversy between litigants before it when it has jurisdiction to do so. See KALIO v. DANIEL KALIO (1975) 2 SC. 15.”
See also Jide Aladejobi vs. NBA NSCQR Vol. 55 (2013) page 179 and Mustadrack Contracts Ltd & Ors vs. Wema Securities & Finance Plc (2018) LPELR-45279 (CA).
Without jurisdiction, no Court can delve into a matter. If a Court does that, it is like a journey into an endless pit or a journey without destination. Jurisdiction is the breath of a Court upon which it has life. The air a human being breaths that gives life is what jurisdiction is to a Court. Jurisdiction is the breath of a Court. As breath or air is important for the survival of a human being so is jurisdiction important for the survival of a Court as it relates to handling matter. It is the life wire of a Court. Anything done without it amount to a waste of valuable time and resources as the whole proceeding and the decision no matter how brilliant amounts to a nullity. In Chief of Air Staff & Ors vs. Iyen (2005) 1 SC (Pt. II) 121, the Supreme Court held:
“A decision given by a Tribunal or Court without jurisdiction is a nullity. If the State High Court gives a decision on a case which falls within the exclusive jurisdiction of the Federal High Court, that decision is null and void and cannot sustain a plea of res judicata. In the same vein, if a Magistrate tries and convicts a person for murder for which he lacks jurisdiction to try the person so convicted cannot successfully raise a plea of autrefois convict to prevent a subsequent trial before a Court vested with jurisdiction to try him.”
In Owner of the MV ‘Arabella vs. Nig. Agricultural Insurance Corporation NSCQR Vol. 34 2008, Ogbuagu, JSC, his Lordship affirms the above position in these words:
“Judgment or order by a Court without jurisdiction is a nullity. If a Court is shown to have no jurisdiction, the proceedings however well conducted, are a nullity.”
For a Court to be said to be competent to hear or entertain a matter, it must conform to all the pre-conditions necessary for it to exercise its jurisdiction. These pre-conditions were stated in the oft-cited case of Madukolu vs. Nkemdilim (1962) All NLR 587 @ 595where the apex Court stated as follows:
“A Court is competent to adjudicate when –
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the Court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.”
This clearly shows that if the lower Court had no jurisdiction, then it will lack the competence to hear the case before it as jurisdiction and competence go hand in hand as they are intrinsically interwoven.
The Appellants have argued that the lower Court lacked jurisdiction based on the fact that the case at the lower Court was not initiated by the due process of the law as was laid down in the Madukolu’s case and also on the fact that the 2nd Appellant not being a party to the transaction that occurred between the 1st Appellant and the Respondent, cannot be joined as a party to the suit at the lower Court. The Respondent has argued that the premise upon which the Appellant is challenging jurisdiction is not in any of the known grounds in the case of Madukolu. I disagree with that. This is not to say that the argument of the Respondent is wrong on the facts but rather that the argument is wrong on the law. A contention on improper service in all intent and purpose is a proper challenge on jurisdiction as it violates a condition precedent to enable the Court to exercise jurisdiction. It is trite principle of law that a Court has no jurisdiction over a party who has not been served with the Court processes especially the originating processes. See CGG (Nig) Ltd vs. Aminu (2015) 7 NWLR (Pt. 1459) 577; Total E & P Nigeria Ltd vs. Emmanuel &Ors (2014) LPELR-22679 (CA). To this extent therefore, the issue as to whether the Respondent’s counsel argument will fly will depend on the fact whether there was proper service on the 1st Appellant and not because the issue of service is not part of the circumstances that can make a Court decline jurisdiction. Having said that let us move forward. For the purpose of this appeal, I will address these two subjects one after the other starting with the ground of ineffective service.
Before I look at the facts, it is important to acknowledge that the 1st Appellant is a corporate body and therefore service on such a body must comply with the provisions of the Companies and Allied Matters Act (CAMA). The CAMA in Section 78 made provision to the effect that service of processes on corporate bodies must comply with the High Court Civil Procedure Rules applicable in that state. See Nigerian Bottling Company Plc vs. Chief Uzoma Ubani (2014) 4 NWLR (Pt. 1398) 421; Dr N.E. Okoye & Anor vs. Centre Point Merchant Bank Limited (2008) 7-12 SC 1; Kraus Thompson Organisation Limited vs. University of Calabar (2004) 4 SC (Pt. 1) 65. For completeness and clarity, I reproduce the provisions of Section 78 of the CAMA:
“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.”
In the circumstance, the relevant provision for service in the case in this appeal is Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules. By this provision, service on a corporate body such as the 1st Appellant, must be delivered to a director, secretary, trustee or other senior, principal or responsible officer of the organization or by leaving it at the registered, principal or advertised office or place of business of the organization within jurisdiction. See FBN Ltd vs. Njoku (1991) 3 NWLR (Pt. 384) 457; NBC Plc vs. Ubani (2014) 14 NWLR (Pt. 1398) 421; Skye Bank (Nig) Plc vs. Okpara (2015) 17 NWLR (Pt. 1489) 613.
The provision of the law both statutory and case law on service on a company is as stated above. The officers of the company that need to be served the processes for it to be valid in the first instance are the Directors, the Secretary of the company or the Trustees. Apart from these officers, other persons that can be served in the company which will amount to proper service are senior, principal and responsible officers of the company. This leaves room for different interpretation as to who are senior, principal and responsible officers of the company. The category of staff which will fall into this class is not stated or defined in the law. The reasonable deduction will be that such staff should be management or senior staff of the company. The term responsible will be interpreted along the terms of senior and principal staff of the company. This is based on the rule of interpretation that once general word follow specific words, the general word will be interpreted along the line of the specific words. See Inakoju & Ors. vs. Adeleke & Ors. (2007) LPELR-1510 (SC); Kraus Thompson Organisation vs. N.I.P.S.S (2004) LPELR-1714 (SC). The Lagos State High Court Civil Procedure Rules provides that processes left at the place of business of the company will be good service. It follows therefore that if the Respondent could prove that the processes were left at the place of business or the registered and advertised office of the company, that will amount to proper service. There is a lot of room that the Respondent could play with to prove service of the processes as mentioned above.
The Appellants have denied service of the processes on them, the duty or the burden to prove that the Appellants were served rest on the Respondent who is alleging that there was service. This is the law. See Barrister Ismaeel Ahmed vs. Alhaji Nasiru Ahmed & Ors (2013) LPELR-21143 (SC). The Respondent needs to show service by whatever means, however, the affidavit of service though not conclusive proof of service, is prima facie proof that there was service. When the Respondent has successfully shown service in the affidavit evidence, the burden shifts to the Appellants to show that they were not served.
Now, it is time to look at whether there was evidence of service in determining whether the appeal will succeed. As mentioned earlier the Respondent needs to prove that the Court processes were served on the 1st Appellant. I have gone through the record of appeal, and I find that there is an affidavit of service contained on page 39 of the record of appeal. The affidavit of service made on 23/4/2012 by the sheriff of Court disclosed that the originating process was served on the 1st Appellant on that same day. This was served on the 1st Appellant at 13A Ruxton Road, Ikoyi.
From what I can glean from the affidavit, before the service, the sheriff never knew the 1st Appellant. He also did not state the name of any pointer as required in the affidavit of service in a situation where the sheriff does not know the person to be served before that time. In the affidavit of service the bailiff said he never knew the 1st Appellant before the day of service. If he never knew the 1st Appellant, there must be a pointer for the bailiff to the 1st Appellant. The bailiff in the affidavit did not state who pointed the 1st Appellant to him. This makes the affidavit of service suspect. That apart, a company being inanimate does not have hands with which to receive the process as it acts through its Directors or designated representatives. I am therefore at a loss who received the process as no name was stated as the recipient of the process in the office of the 1st Appellant. Will this therefore suffice as a valid service? I think not as the affidavit of service did not satisfy the condition of good service.
The above would have ended the case on behalf of the Appellants but there seem to be a game changer in the sense that on the writ of summons found on page 40 of the record, the stamp of the 1st Respondent was endorsed therein with a signature. Will this suffice? The law as I know it to be is that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This expression is encapsulated in the latin maxim Omnia praesumuntur rite esseacta. Cases abound on this trite principle of law. See Nigerian Airforce vs. James (2002) LPELR-3191 (SC); Shitta-Bey vs. A.G Federation & Anor (1998) LPELR-3055 (SC). The law having presumed that the service was regular, the burden of proof now shifts to the Appellants to debunk the service on them. The Appellants having failed to show that they were actually not served cannot hide under the cloak of non-service or improper service.
It is worthy of note that the Appellants in this appeal and on this issue are not contesting the initial personal service made on 28/4/12 which contains the official stamp of the 1st Appellant but rather the subsequent service effected on the 1st Appellant by substituted means, to wit, advertisement in one of the national dailies. To this end, let me state that there are two motions for substituted service. The motion dated 26/4/2012 for substituted service on the 2nd Appellant by pasting same at No. 13A Ruxton Road Ikoyi found on pages 59-62 of the record of appeal and the motion dated 1/6/2012 for substituted service on the 1st Appellant by way of advertisement in one of the national dailies found on pages 83-88 of the record. I have gone through the record and to set the facts straight, the application of the Respondent dated 24/4/2012 which he moved in terms was for substituted service on the 2nd Appellant and not on the 1st Appellant while that of 1/6/2012 was for the 1st Appellant and the reason was clearly stated in the grounds of the application. This distinction is necessary in the light of the arguments of the Appellants. As much as a company cannot be served by substituted means, I cannot shut my eyes to the fact that the 1st Appellant has already being served personally which service I had early held to be presumed regular and which service remains valid. The principle of presumption of regularity has not been rebutted by the Appellants. The substituted service done by pasting was in respect of the 2nd Appellant.
In the light of the foregoing, I do not see how the case of Mark vs. Eke (supra) applies to the facts of this case. The 1st Appellant was properly served and indeed so is the 2nd Appellant and so the Appellants have a weak objection in the eyes of the law and indeed before this Court on the issue of service.
Having dealt with the issue of service, let me now address the contention of Appellants’ counsel that the 2nd Appellant was not a party to the loan transaction between the 1st Appellant and the Respondent and as such, the joinder of the 2nd Appellant was wrong. In order to resolve this issue, I have made resort to the record of appeal with particular reference to pages 321-324 which houses the guarantee for the transaction, I find as a fact that from the introduction, the parties are the Respondent (as the bank), the 1st Appellant (as the borrower) and the 2nd Appellant (as the guarantor). The guarantee on page 324 was signed by the 2nd Appellant. By this, the 2nd Appellant is fixed on the spot and cannot escape liability having stood as guarantor to the loan sum advanced to the 1st Appellant. The law is trite to the effect that a person who gives
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guarantee to another will be liable on that guarantee. See Trade Bank Plc vs. Chami (2003) 13 NWLR (Pt. 836) 158 @ 211 cited by the Respondent’s counsel.
Assuming that I am wrong in the position I have held, the fact that the 2nd Appellant was wrongly joined is not fatal to the case of the Respondent at the lower Court as misjoinder cannot defeat a cause or matter vide Ayankoya & Ors vs. Olukoya & Anor (1996) LPELR-669 (SC); Ifeanyi Chukwu (Osondu) Co. Ltd vs. Soleh Boneh (NIg.) Ltd (2000) LPELR-1432; FGN & Ors vs. Shobu Nigeria Ltd & Anor(2013) LPELR-21457 (CA).
The point must be made that the duty of Court is to ensure that justice is done between the parties and no Court should allow any party to play with technicality to defraud any party of justice. The issue of service whichever way it is looked out cannot help the Appellants at all. In the light of the above position of the law, I cannot resolve this first issue in favour of the Appellants. I resolve same against them and in favour of the Respondent.
Lastly on this issue, the Appellants have contended that the Respondent unilaterally altered the writ of summons and as such that divest the lower Court of jurisdiction. The Appellants also argued that the lower Court failed to consider this issue when it was raised by the Appellants. Assuming that the lower Court failed to pronounce on this issue as was contended by the Appellants’ counsel, this Court by virtue of Section 15 of the Court of Appeal Act has the powers to step in the shoes of the trial Court and resolve this issue. I have gone through the record and the brief of the Appellants and suffice to say that the Appellants after making this assertion, failed to put the necessary materials before the Court for it to arrive at a logical conclusion on this. The law as was earlier stated is that, he that assert must prove. The Appellants failed to prove in what way the writ of summons was altered by the Respondent and as such I find that this contention is not worth the precious time of this Court. The Court is not supposed to go on expeditious trip fishing for evidence to support the case of a party or go on a voyage of discovery. SeeUdegbunam vs. FCDA & Ors (2003) LPELR-3291 (SC). In the light of this, this contention of the Appellants is hereby discountenanced.
Having considered issue one, let me now turn over to the resolution of issue two. For completeness, the issue two is reproduced hereunder.
Whether the Appellants suffered a miscarriage of justice was suffered by the Appellants (sic) as a result of the Ruling which was delivered outside the constitutional time frame?
The main issue in summary here is whether the judgment delivered after 90 days is null and void. The section of the law that deals with this issue which is before us is Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria. I will therefore refer to the provision for ease of reference. Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria Provides thus:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
The Appellants have argued that the lower Court delivered the ruling later than the 90 days period as prescribed by the Constitution and as such the late delivery of the judgment has occasioned a miscarriage of justice. Can this be said to be true? In arriving at an answer to this question, it behooves me to return to the record of appeal. The lower Court in the proceedings of 5/2/2013 contained on pages 494-495 of the records heard the addresses of Mr. O. J. Adeniyi, counsel for the Appellants (then Defendants) on their three applications on that same day. This was opposed by Mr. Kunle Ayorinde, counsel for the Respondent (then Claimant). After hearing the addresses of counsel on both sides, the learned trial Judge adjourned for ruling to 27/2/2013. The ruling however was not delivered on that date but rather it was delivered on 31/5/2013; for whatsoever reason, I cannot tell as I cannot go outside the record to look for what is not lost. If my mathematical calculation serves me right, from 5/2/2013 (the date of address) to 31/5/2013 (the date the ruling was eventually delivered) is a period of 115 days (with the day of the ruling inclusive). That is 25 days in excess of the 90 days prescribed by the Constitution. By this, it is obvious that the argument of the Appellants is not misplaced. What however the Appellants’ counsel failed to avert his mind to is the other part of the said section. It is obvious that counsel for the Appellants only read a portion of that section and argued on it without reading the section in whole. It is trite that in construing a statute, it should be read as a whole. See Obi vs. INEC & Ors (2007) LPELR-2166 (SC); Mobil Oil (Nig) Plc vs. IAL 36 Inc (2000) LPELR-1883 (SC); Yabugbe vs. C.O.P (1992) LPELR-3505 (SC).
The Constitution recognizing that in some cases beyond human control, a Court may not deliver judgment within the 90 days, made provision in Subsection 5 in circumstances in which the judgment will not be declared null and void or set aside. I now reproduce Section 294 (5) of the Constitution:
“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The apex Court in Nigeria has severally pronounced on the above provisions. I will refer to one case in this regard. In Akoma & Anor vs. Osenwokwu & Ors. (2015) 5-6 SC (Pt. IV) 1, the Supreme Court per Okoro JSC held:
“Now, Section 294 (1), (5) and (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides:
“(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of Subsection (1) of this Section, the person at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.
From the above constitutional provision, a Court is mandated to deliver its judgment within 90 days after final addresses. This applies to both trial and Appellate Courts. There is no doubt that the delay in delivery of the judgment by the Court below was inordinate and offends against Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria. Ordinarily, that will render such a judgment a nullity. See IFEZUE V, MBADUGHA (1984) 1 SCNLR 427. However, by Section 294 (5) of the said Constitution, delay alone will not lead to setting aside the judgment unless there is evidence of miscarriage of justice.
In DIBIAMAKA V. OSAKWE (1989) 3 NWLR (pt. 107) 101, this Court held that in deciding whether a party has suffered a miscarriage of justice as a result of inordinate delay between the conclusion of a trial and the delivery of judgment, the emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the Court. That is, if this inordinate delay apparently and obviously affected the Court’s perception, appreciation and evaluation of the case. Then the Appellate Court would intervene. It is my view that in the circumstance such as this, it is the duty of the Appellants to show how the delay has affected the perception, appreciation and evaluation of the evidence by the judge or justices as the case may be or how the delay eroded the confidence in the entire judicial process which produced the judgment.”
The combined reading of Section 294 (1) and (5) of the Constitution and the interpretation given above shows that no appellate Court has delivered more than 90 days after final address was taken. To hold such a hard stand will defeat the tenet of justice which a Court stands for particularly in this age of pursuing substantial justice instead of technical justice. To hold that a judgment is a nullity implies that all the proceedings, time and money spent are all wasted and the case will have to start all over again.
This will be a long journey and parties may lose interest and resort to self-help. It is to avoid such chaotic situation that the law makes provision for subsection 5 of Section 294 of the Constitution. Since the main duty of the Court is to do justice, the law makes provision to the effect that the judgment delivered after 90 days will only be a nullity if the party complaining has suffered some injustice as a result of the delay. The burden is on the party to show what miscarriage of justice he has suffered as a result of the delay. Failure to show this, any complaint of delivery of the judgment outside 90 days will be of no issue and indeed of no moment. The real issue is not that judgment was delivered after 90 days but whether the party suffered any form of injustice arising from that. See Dambo vs. Waziri(2014) LPELR-23983 (CA). I find very instructive in this regard the judgment of this Court in NNPC vs. Zaria & Anor (2014) LPELR-22362 (CA) per Abiru, JCA in pages 63-68. This Court held thus:
“This second issue for determination revolves around the interpretation of the provisions of Section 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria.
Section 294 (1) reads:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses“
Section 294 (5) states that:
“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
These provisions have been interpreted severally by the Courts to mean that by a combined reading of the provisions of Sections 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria, a party cannot seek to nullify a judgment of Court simply because it was delivered outside the ninety day period allowed by the Constitution. The party must proceed further to convince the Court exercising jurisdiction by way of appeal or review of that decision that he has suffered a miscarriage of justice by the reason thereof. Where there is a failure to so establish a miscarriage of justice, the appellate Court will find it difficult to declare that judgment a nullity. In other words, the emphasis is not strictly on the length of time simpliciter but on the effect it produced in the writing of the judgment – Savannah Bank of Nigeria Ltd V. Starite Industries Overseas Corporation (2009) 8 NWLR (Pt. 1144) 491, International Beer and Beverages Industries Ltd V. Mutunci Company (Nig) Ltd (2012) 6 NWLR (Pt. 1297) 487, Kolawole Industrial Company Ltd V. Attorney General, Federation (2012) 14 NWLR (Pt. 1320) 221 and Peoples Democratic Party V. Okorocha(2012) 15 NWLR (Pt. 1323) 205.
This Court agrees with this interpretation given to the provisions of Section 294 (1) and (5) of the 1999 Constitution and it represents the literal meaning of the wordings of the section. This Court, however, believes that the interpretation must be qualified by the concepts of common sense and reasonableness. After all, there is always presumption against the legislature intending what is unreasonable and abhorrent to common sense in the interpretation of statute and as such, in construing statutes, the construction agreeable to justice and reason must be adopted Ibrahim V. Sheriff (2004) 14 NWLR (Pt. 892) 43, Elabanjo V. Dawodu (2006) 15 NWLR (Pt. 1001) 76, Sobamowo V. Elemuren (2008) 11 NWLR (Pt. 1097) 12. The position of the law in this respect is well set out in Maxwell on the Interpretation of Statutes, 12 Edition by Langan, 1976 at Page 199 thus:
“In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. An unreasonable result is not to be imputed to a statute if there is some other construction available.”
Looking at the provisions of Section 294 (1) and (5) of the 1999 Constitution in the light of these concepts, the delay that must have been envisaged by the drafters of the provisions of Section 294 (5) of the Constitution must be one that is within reason and common sense. Thus, the requirement that a party complaining of delay in the delivery of judgment must go further to convince the Court exercising jurisdiction by way of appeal or review of that decision that he has suffered a miscarriage of justice by the reason thereof can, and should, only be applicable where the delay itself is reasonable and it is explained by the lower Court in the judgment. Where the delay is unreasonable and it is not explained, the very fact of such delay should be sufficient ground for the appellate Court to find that there has been a miscarriage of justice. The reasons for this position are simple. The Courts recognize that what amounts to miscarriage of justice varies in relation to particular facts of a case and that to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law – Adigun V. Attorney General, Oyo State (1987) 1 NWLR (Pt. 53) 678, State V. Ajie (2000) 11 NWLR (Pt. 678) 434, Adebayo V. Attorney General Ogun State (2008) 7 NWLR (pt. 1085) 201.
The term “justice” means proper administration of laws; the constant and perpetual disposition of legal matters or disputes to render every man is (sic) due. In Obajimi V. Adediji (2008) 3 NWLR (Pt. 1073) 1, the Court of Appeal stated that “justice means fair treatment, and the justice in any case demands that the competiting rights of the parties must be taken into consideration and balanced in such a way that justice is not only done but must be seen to be done.” And the insertion of a provision in the Constitution stipulating a time period within which a Court should deliver its judgment in a case after final address is in recognition of the fact that “human memory is limited by time and space and loses its impressions or knowledge of persons, things, with the passage of time and therefore loss increases with time and pre-occupations” – Ifezue V. Mbadugha (1984) 5 SC 79. “Thus, where the delay in the delivery of judgment is unreasonably long, it cannot be contested that it will, without more, affect the memory of the trial Judge and his impressions of the facts and evidence led in the matter such that whichever way the decision goes, it cannot be, and would not be, seen to be justice according to law. What would amount to reasonable delay must depend on the facts of each case. In the instant case, the delay in the delivery of judgment was four years and seven months and no explanation was offered by the lower Court for the delay. This delay, by all parameters, is not only unreasonable and contrary to common sense, it is also highly irresponsible. To interpret the provisions of the Constitution in a manner that seeks to condone, tolerate and permit such a delay by requiring the party complaining to go further to explain the injustice it suffered by the delay before such a judgment is set aside is tantamount to promoting absurd and irresponsibility an such an interpretation must be unacceptable to anyone concerned with the proper administration of justice. The law recognizes that where reliance on the literal interpretation of wordings of a statute will lead to absurdity, a Court is permitted to depart from that principle of interpretation. This Court is sure that the drafters of Section 294 (5) of the Constitution could not in their “wildest dreams” have envisaged a delay of such a length of time when they were inserting the provision. It is the view of this Court that a delay for such a length of time must be enough ground for this Court to find that there has been a miscarriage of justice and to et aside an nullify the judgment of the lower Court.
Going further and considering whether the Appellant has shown a miscarriage of justice by reason of the delay in the delivery of judgment, the acceptable criteria must be that given by Oputa, JSCC, in Dibiamaka V. Osakwe (1989) 3 WRN (Pt. 107) 101, at page 114 where the learned Justice said thus:
“And the law is that if inordinate delay between the end of trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the case. Then the Appellate Court would intervene. It is my view that in the circumstance such as this, it is the duty of the Appellants to show how the delay has affected the perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impression on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there (sic), but only there (sic), will an appellate Court interfere. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.”
Now sounding more specific and relevant, I have gone through the record of appeal and the address of counsel, I did not see anywhere the Appellants discharged the burden placed on them under Section 294 (5) of the Constitution, more so when the preliminary objections of the Appellants at the lower Court was on affidavit evidence. In the circumstance, I have no difficulty in resolving this issue in favour of the Respondent.
Let me now go on to consider issue three, which is the last issue for determination before this Court. The issue three reads:
Whether the failure of the trial Judge to consider all the issues raised by the Appellants in their dismissed applications is an error in law worthy of allowing this appeal and overturning the decision of the lower Court?
I have laid the foundation earlier that the ruling of the lower Court is premised on the three preliminary objections of the Appellants which the lower Court considered in its three-paged ruling. The Appellants’ counsel has therefore alleged that the lower Court failed to consider all the issues raised by the Appellants. Can this assertion be true? This is what this Court is here to consider. The law is trite to the effect that a Court must consider all the issues raised by a party. This trite position of the law was stated in the case of Honeywell Flour Mills Plc vs. Ecobank(2018) LPELR-45127 (SC) where the apex Court held thus:
“It is trite law, that a Court of law should always make pronouncement on or must determine all the issues raised before it by parties. See 7Up Bottling Company vs Abiola Sons Bottling Company Ltd (2001)6 SC 73. In this instant appeal and as I stated supra, none of issues 5, 6 and 7 had not been subsumed by any other issue. This 2nd issue raised by the appellant is therefore hereby resolved in favour of the appellant against the respondent. In the result, in view of my resolution of the 2nd issue in favour of the appellant, it will be premptous to proceed to consider at this stage, the other remaining two issues. It is therefore hereby ordered that this appeal be remitted to the lower Court for it to consider Issues No 5, 6 and 7 which were validly raised and argued before it but were not determined by it, as well as the other complaint made by the appellant in his Amended Brief of Argument as itemised above. The Appeal therefore succeeds and is allowed.”
This view was also held by Kekere-Ekun, JSC in MTN vs. Corporate Communication Investment Ltd (2019) LPELR-47042 (SC) where he puts it in these words:
“What is quite apparent from the portions of the judgment reproduced above, is that the learned trial Judge considered only the pleadings and evidence led by the claimant in reaching his decision on the expenses incurred. He was being cautious, since his was not the final Court, by considering the pleadings and evidence led by the appellant in the event that he was overruled on the incompetence of the Statement of Defence. This approach is in keeping with the advice often given by this Court that where a Court is not the final Court on the subject matter, it should endeavour to proffer an opinion on all the issues submitted to it so that the appellate Court would have the benefit of the Court’s reasoning in the event that it does not agree with the position of the Court on the issue of competence, jurisdiction, locus standi, etc.
Having laid down the trite principle of law, let me now address the contention of the Appellants’ counsel. Before I do that, let me say that every Judge has his style of writing judgment as there is no generally acceptable style. A good judgment must evaluate the evidence before the Judge, make findings based on the evaluation and then apply the law in the circumstance to arrive at a decision. No matter the style adopted by a Judge, the judgment must contain the basic characteristics of a good judgment. The style of writing a judgment is peculiar to a Judge but whichever style is used, a good judgment must have the characteristics of a good judgment stated above. In Omotola & Ors vs. State (2009) 2 FWLR (Pt. 468) 3437, the apex Court stated the characteristics of a good judgment in these words:
“As made clear in the above passage of the judgment of the Court below, the learned Justice of the Court below who wrote the lead only opened its judgment by highlighting or restating the facts which the trial Court had accepted.
I do not see how the statement could be considered as injurious to the interest of the appellants as would make it amount to a miscarriage of justice. It seems to me that the manner in which a judgment is to be written cannot be made universal to Judges. Each Judge has his own style and each case often calls for an approach considered most useful to make the particular judgment good enough for the occasion. The important thing is that all the known elements in a good judgment must be incorporated. In this connection, I gratefully adopt the observation of Akintan J.S.C. in Ogba v. Onwuzo (2005) 14 NWLR (Pt. 945) 331 at 334-335 where he said:
“Judgment writing is an art by itself in which every individual has his own peculiar style and method. All that a good judgment requires is that it must contain some we-known constituent parts. Thus, some of the constituent part which a good judgment must contain in case of a trial Court include: (1) the issues or questions to be decided in the case; (2) the essential facts of the case of each party and the evidence led in support; (3) the resolution of the issues of fact and law raised in the case; (4) the conclusion or general inference drawn from the facts and the law as resolved; and (5) the verdict and orders made by the Court. See Oro v. Falade (1995) 5 NWLR (Pt. 396) at 407-408; Mogaji v. Odofin (1978) 4 SC 9; Ojogbue v. Nnubia (1972) 1 ANLR (Pt. 2) 226; and Olomosola v. Oloriawo (2002) 2 NWLR (Pt. 750) 113 at 125.”
See also A.G. Federation & Ors vs. Abubakar & Ors (2007) 10 NWLR (Pt. 1041) 1.
I have gone through the record of appeal particularly the three notices of preliminary objection filed by the Appellants and the Ruling of the lower Court. Suffice to say that the grounds upon which the Appellants based their preliminary objection relates to the competence of the lower Court to entertain the suit of the Respondent before it. The learned trial Judge in one fair swoop therefore determined the three applications under the subject matter of jurisdiction and came to the conclusion that the applications of the Appellants do not hold water. It is on this basis that the learned trial Judge dismissed the applications of the Appellants. While the learned trial Judge might not be wrong in his modus operandi, I felt the learned trial Judge could have done more than what he actually did. I however, do not agree with the Appellants in this submission that the lower Court did not resolve the issues of law joined by both parties in the ruling.
I had mentioned above that there is no generally acceptable style of judgment writing provided the characteristic of a good judgment are contained therein. The lower Court may not have in many words dealt with issues raised by the Appellants one after the other but the Court had in few words dealt with the issues the parties placed before it which is on jurisdiction merely on whether there was proper service of the 1st Appellant. This is the main issue before the lower Court and the lower Court had held that it had jurisdiction as the facts therein do not offend the issue of jurisdiction. I am at a loss however on the argument of the Appellant that the lower Court should have considered the issue of alteration of the writ. I did not see anywhere that was made an issue in the motion filed before the lower Court. While I concede that the lower Court should have dealt more extensively with the issue of jurisdiction and service, I cannot however in good conscience hold that the lower Court did not consider the issues raised before it in the motions. This issue is resolved in favour of the Respondent.
Having resolved all three issues in favour of the Respondent, the summary of the whole judgment is that this appeal is unmeritorious and same is hereby dismissed. The ruling of Hon. Justice L.B. Lawal-Akapo of the High Court of Lagos State in Suit No. LD/616/2012 –First City Monument Bank Plc vs. Triquest Energy Limited & Anor delivered on 31/5/2013 is hereby affirmed.
I award N200,000 (Two Hundred Thousand Naira) cost in favour of the Respondent.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the robust judgment prepared by my learned brother, Ebiowei Tobi, J.C.A., and add by way of emphasis that having personally served the 1st appellant the originating process, the substituted service of the other processes on it by courtesy of an order of the Court below was sufficient service to put the 1st appellant on notice of the pendency of the action.
Also, on the face of the action, the joinder of the 2nd appellant in the action was based on the guarantee the 2nd appellant gave for the loan advanced by the respondent to the 1st appellant which made the joinder of the 2nd appellant in the action prima facie unimpeachable. For these reasons and the more elaborate reasons contained in the judgment prepared by my learned brother, Ebiowei Tobi, J.C.A.. I too find no substance in the appeal and would dismiss and abide by the consequential orders contained in the said judgment.
BALKISU BELLO ALIYU, J.C.A.: I read in draft the illuminating judgment just delivered by my learned brother, Ebiowei Tobi, JCA. I agree with his reasoning in the determination of the three issues raised for the determination of this appeal and I adopt same as mine in resolving the three issues against the Appellants.
I too find no merit in this appeal and I join His Lordship in dismissing it entirely. I abide by the order of cost made in the lead judgment.
Appearances:
HARRY O. UKAEJIOFOR, ESQ. For Appellant(s)
OLABISI OLAJIDE, ESQ. For Respondent(s)