UBA, PLC v. SKYRUN INT’L AIR-CONDITIONER MANUFACTURER, FZE & ORS
(2022)LCN/16536(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, January 14, 2022
CA/C/04/2015
Before Our Lordships:
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA PLC APPELANT(S)
And
1. SKYRUN INTERNATIONAL AIR-CONDITIONER MANUFACTURER, FZE 2. ETISCO BEREAU DE CHANGE 3. MR. ETIM OKIMA RESPONDENT(S)
RATIO
WHETHER OR NOT SERVICE OF ORIGINATING PROCESSES ON A DEFENDANT IS A CONDITION PRECEDENT FOR A COURT TO EXERCISE JURISDICTION OVER THE MATTER
It is trite law that service of originating process such as the writ of summons on the defendant is a condition precedent to exercise of jurisdiction of the Court to hear and determine the suit. Any judgment or order given against a defendant without service is a judgment given without jurisdiction and is therefore null and void. See Fidelity Bank Plc v. The M. T. Tabora & Ors (2018) LPELR–44504 and the decision of this Court in Abuja Glazing Technology Ltd v. Stanley Uchenna NwaJesus & Ors (2021) LPELR–54904. PER ABIRIYI, J.C.A.
THE POSITION OF LAW ON THE UNDEFENDED LIST PROCEDURE
The undefended list procedure is a species of Summary judgment evolved by the rules of Court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiff’s claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ more subterfuge to dribble his opponent for the purpose of stalling proceedings. It is however not the aim of the undefended list procedure to shut out a defendant who wants to contest a suit brought out under the undefended list merely in order to obtain a speedy trial at the expense of justice. See MACAULAY V. NAL MERCHANT BANK LTD (1990) 4 NWLR (prt. 144) 283. Order 10 Rule 6 of the Cross River State (Civil Procedure) Rules provides that all suits placed under the undefended list shall be heard and determined within twenty-eight (28 days) after service of processes on the defendant. PER SHUIABU, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on the 5th June, 2014 in the High Court of Cross River State before His Lordship, Hon. Justice Elias O. Abua in the following terms:
“Court- The Defendants having been served this processes on the 27th of May, 2014, today being the 5th day of June, 2014. The notice of intention to defend and an affidavit showing a defence on the merit with their processes not having been filed judgment hereby entered for claimant as per their claims. No order as to costs.”
The 1st Respondent was the claimant in the High Court (the Court below). The Appellant was 1st Defendant. 2nd and 3rd Respondents were the 2nd and 3rd Respondents. The matter was determined under the Undefended List procedure.
The Appellant immediately proceeded to this Court on appeal against the above judgment of the Court below by filing a notice of appeal on 6th June, 2014. The notice of appeal was amended with the leave of the Court.
The amended notice of appeal was filed on 14th March, 2017. It contains three grounds of appeal. From the three grounds of appeal the Appellant presented the following issues for determination:
1. WHETHER THE TRIAL COURT WAS JUSTIFIED IN ENTERTAINING THIS MATTER UNDER THE UNDEFENDED CAUSE LIST AND IN NOT DISMISSING IT OR SETTING ITS JUDGMENT ASIDE WHEN IT BECAME AWARE OF THE ABUSE OF COURT PROCESS.
The issue we believe, to be covered by grounds 2 and 3, of the Amended Notice of Appeal, by Order of this Court.
2. WHETHER THE RUSH/HURRY IN CONCLUDING THIS MATTER HAS NOT OCCASIONED MISCARRIAGE OF JUSTICE OF THE APPELLANT.
This issue is covered by ground 1.
The 1st Respondent presented the following issue for determination:
“Whether the trial Court was justified in entertaining this matter under the Undefended List and in not dismissing it or setting its judgment aside.”
The 2nd and 3rd Respondents also presented the following lone issue for determination:
“Whether the Honourable Court was right in law in assuming jurisdiction to hear and determine the case when on the face of the affidavit of service of the originating process on the 2nd & 3rd Respondents/Cross-Appellants, it was obvious that the 2nd and 3rd Respondents/Cross Appellants were not actually served with the originating process in the case.”
When the appeal was heard on 22nd November, 2021, Appellant’s counsel argued the appeal and 1st Respondent’s counsel E. E. Irem Esq. did not indicate that the 1st Respondent had a preliminary objection embodied in the brief of the 1st Respondent. It was therefore deemed abandoned and therefore struck out.
The learned counsel for the 2nd and 3rd Respondents on the day the appeal was heard pointed out that the 2nd and 3rd Respondents had no cross-appeal, no cross Appellant’s brief of the 2nd and 3rd Respondents. Therefore the cross-appeal was withdrawn.
Appellant’s counsel argued the two issues they presented for determination together.
Arguing the appeal, learned counsel for the Appellant contended that Order 10 of the High Court (Civil Procedure) Rules 2008 of Cross River State is applicable only in respect of “Recovery of a debt or liquidated money demand.” It was contended that from paragraph 4 of the affidavit upon when the matter was placed on the undefended list, the 1st Respondent stated that it went into a contract with the Appellant to transfer money which was not transferred as it would violate Central Bank regulations. That by paragraph 5 of the affidavit, the 1st Respondent then paid the cheque to other Respondents. That even though the 1st Respondent claimed that it was on the directive of the Appellant, the said directive, which the Appellant denies, was not attached to the affidavit. That all the other paragraphs concerning the Appellant only showed it acting as a banker to the 1st Respondent. That the 1st Respondent also claimed interest of 12% on the alleged sum due.
It was contended that the sum claimed is not a liquidated demand. We were referred toNigerian Postal Services v. Irbok Nig. Ltd. (2006) 8 NWLR (pt. 982) 323. Therefore the Court below was wrong to entertain this case under the Undefended List.
Apart from this, it was argued, the 1st Respondent had sued the same parties over the same subject matter in Suit No. HC/312/2012 which he withdrew after exchange of pleadings and was struck out which fact was deliberately withheld from the Court by the 1st Respondent. The 1st Respondent in Suit No. HC/221/2014 which he instituted after suit No. HC/312/2012 was struck out at his instance claimed that the Appellant and the 2nd and 3rd Respondents had no defence.
By Order 10 Rule 6 of the High Court (Civil Procedure) Rules 2008 of Cross River State, it was contended, the Appellant was allowed twenty-eight (28) days from the date the order transferring the matter to the undefended list. But the Court below denied them the 28 days and rushed into delivering judgment.
Learned counsel for the 1st Respondent argued that the reliefs sought by the 1st Respondent were for recovery of debt and liquidated money demand. That the principal sums were money which belongs to the 1st Respondent and constituted debts which the Appellant, 2nd and 3rd Respondents are to settle while the interest rates derive from the prevailing monetary policy of the Central Bank of Nigeria applicable to the principal sums and constituted money demand.
Learned counsel for the 2nd and 3rd Respondents argued that the 1st Respondent obtained an order of substituted service on the 2nd Respondent at No. 139 Ndidem Usang Iso Road, Calabar but served by pasting at House No.5 Charles Taylor Estate, Barracks Road, Calabar contrary to the Order of Court for the service of the originating processes.
That the 3rd Respondent was served the originating process at 139 Ndidem Usang Iso Road, Calabar when that is not his address. This means that the 3rd Respondent was not served with the originating process in this case.
Service of process, it was submitted, is a condition precedent for the Court assuming jurisdiction and where the defendant is not served with the writ of summons, the subsequent trial of the case is a nullity.
Furthermore, the 2nd Respondent, it was contended, is a registered company which by Order 12 Rule 9 of the Cross River State (Civil Procedure) Rules, 2008 cannot be served an originating process by substituted means; that is by pasting. The only valid means of service on a registered company under the Rule is by delivery of the process to a Director, Secretary or other Senior Officer of the organization or by leaving it with a responsible person at the registered office or place of business of the organization. In the circumstances, either way the 2nd Respondent was not properly served, it was argued.
The 2nd and 3rd Respondents should be given the opportunity to defend the action by being served with the originating process in the case, learned counsel for the 2nd and 3rd Respondents argued.
The only issue for determination in the appeal in my view is, whether the Court below rightly assumed jurisdiction to hear and determine this case.
Order 10 Rule 6 of the Cross River State (Civil Procedure) Rules provides that all suits placed under the Undefended List shall be heard and determined within twenty-eight (28) days of their being so placed subject to service of the processes on the defendant. From the proceedings of the Court below especially the judgment of the Court below reproduced at the beginning of this judgment, the Respondents were served on 27th May, 2014. The Court below entered judgment for the 1st Respondent under the Undefended List on 5th June, 2014 inspite of the fact that counsel for Respondents. B. Agogo Esq informed the Court below that they intended to file a defence. By Order 10 Rule 6 of Rules of that Court the Respondents were still within time to file a defence. The Court below erred when it shut out the Appellant, the 2nd and 3rd Respondents inspite of the fact that they were still within time to defend.
It is trite law that service of originating process such as the writ of summons on the defendant is a condition precedent to exercise of jurisdiction of the Court to hear and determine the suit. Any judgment or order given against a defendant without service is a judgment given without jurisdiction and is therefore null and void. See Fidelity Bank Plc v. The M. T. Tabora & Ors (2018) LPELR–44504 and the decision of this Court in Abuja Glazing Technology Ltd v. Stanley Uchenna NwaJesus & Ors (2021) LPELR–54904. In the instant case, there was no service of the originating processes on the 2nd and 3rd Respondents. This is because the 2nd Respondent was served by substituted means at House 5, Charles Taylor Estate contrary to the Order of the Court that service be effected at No. 139 Ndidem Usang Iso Road, Calabar. See pages 23 and 1 of the additional record of appeal. The 3rd Respondent was also served by substituted means by pasting at No. 139A Ndidem Usang Iso Road, Calabar contrary to the order of the Court that service be effected at No. 5, Charles Taylor Quarters, Barracks Road, Calabar. See pages 24 and 1 of the additional record. The originating processes having not been served on the 2nd and 3rd Respondents, the judgment of the Court below delivered on the 5th June, 2014 was delivered without jurisdiction and therefore null and void.
The only issue formulated by the Court is therefore resolved in favour of the Appellant and against the 1st Respondent.
The appeal is allowed and the judgment of the Court below set aside.
Suit No. HC/221/2014 is hereby remitted to the Hon. Chief Judge of Cross River State to be re-assigned to another Judge other than Hon. Justice Elias O. Abua.
Appellant is awarded N100,000 costs to be paid by the 1st Respondent.
MOHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother James S. Abiriyi, JCA, and I agree with the reasoning and conclusion reached in allowing the appeal.
The undefended list procedure is a species of Summary judgment evolved by the rules of Court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiff’s claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ more subterfuge to dribble his opponent for the purpose of stalling proceedings. It is however not the aim of the undefended list procedure to shut out a defendant who wants to contest a suit brought out under the undefended list merely in order to obtain a speedy trial at the expense of justice. See MACAULAY V. NAL MERCHANT BANK LTD (1990) 4 NWLR (prt. 144) 283.
Order 10 Rule 6 of the Cross River State (Civil Procedure) Rules provides that all suits placed under the undefended list shall be heard and determined within twenty-eight (28 days) after service of processes on the defendant. In the instant case, the matter was heard and determined before the expiration of the twenty-eight (28 days) provided under the Rules aforesaid. Furthermore, there were no proper service of the Originating processes on 2nd and 3rd respondents. That being the case, the lower Court wrongly assumed jurisdiction to hear and determine the suit giving rise to this appeal.
I too allow the appeal and abide by all the consequential orders.
ADEMOLA SAMUEL BOLA, J.C.A.: I have had the privilege of reading in draft from, the judgment delivered by my learned brother, JAMES SHEHU ABIRIYI, JCA. I am in agreement with the reasons advanced and the conclusions reached thereby.
It is noteworthy that the 2nd Respondent is a registered company. Under Order 12 Rule 9 of the Cross River State (Civil Procedure) Rules, 2008, a company cannot be served an originating process by substituted means that is by pasting.
A regular service can only come by delivery of the process to the Director, Secretary or other officers of the organization or by leaving it with a responsible person at the registered office or place of business of the organization.
Service of a Court process in contradistinction to service of any other document can be effected by leaving it at any office of the corporation or company. In FIRST BANK OF NIGERIA LTD. VS. NJOKU (1995) 3 NWLR (PT. 384) 457 AT 479- 480, it was held that the combined effect of Section 78 of the Companies and Allied Matters Act 1990 and Plateau State Civil Procedure Rules 1987 is that it can be effected by leaving it at any office of the corporation or company. Contrary to the above, the 2nd Respondent in this appeal was served by substituted means at House 5 Charles Taylor Estate, contrary to the order of the Court that service be effected at No. 159 Ndidem Usang Iso Road, Calabar as revealed by pages 1 and 23 of the Additional Record of Appeal.
It is equally noted that the 3rd Defendant was served at a wrong address. See pages 1 and 24 of additional record.
The totality of these is to the effect that the service of the originating processes on the 2nd and 3rd Defendants was irregular and invalid. The judgment of the lower Court predicated on these defective and invalid services is equally invalid, null and void, having been delivered without jurisdiction.
I allow the appeal and set aside the judgment of the lower Court. I equally abide by the consequential orders made by my learned brother, ABIRIYI, JCA and the cost awarded.
Appearances:
N. B. Ulaeto, Esq. For Appellant(s)
E. S. Irem, Esq. – for 1st Respondent
C. B. Agogo, Esq. – for 2nd and 3rd Respondents For Respondent(s)
