UNITED BANK FOR AFRICA PLC & ANOR. V. MRS. UGOENYI & ANOR.
(2011)LCN/4615(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of June, 2011
CA/K/152/2005
RATIO
SERVICE OF COURT PROCESS ON A COMPANY: HOW TO PROPERLY EFFECT SERVICE OF COURT PROCESS ON A COMPANY
To do justice to this critical issue, a convenient starting point is to visit the provision of section 78 of the Companies and Allied Matters Act, Cap. C20 Laws of the Federation of Nigeria, 2004, which regulates service of court on companies such as the first appellant. It reads: “78. A Court process shall be serviced on a company in the manner provided by the Rules of Court and any other document may be serviced on a company by leaving it at, or sending it by post to, the registered office or head office of the company.” Section 78 of the Act passes the buck to the rules of the lower court as to the mode a company, like the first appellant, should be served a court process. To this end, the provision Order 12 rule 8 of the High Court Rules comes in handy. It states: “ORDER I2 SERVICE OF PROCESS A – SERVICE WITHIN JURISDICTION “8. When the suit is against a corporation or a company authorized to sue and be sued in its name or in the name of an officer or trustee, the writ or other document may be served, subject to the enactment establishing such corporation or company or under which it is registered, as the case may be, by giving the same to any director, secretary, or other principal officer, or by leaving it at the office of the corporation or company.” From the tenor of the provision of Order 12 rule 8 of the High Court Rules, the manner of service on a company is still subject to the provision of the legislation under which it is registered, that is, the provision of section 78 of the Act herein. To my mind, the two provisions are intertwined with regard to service of court processes on a company. In other words, they must be read together. A communal reading of the duo provisions reveals that a company, in the status of the first appellant, must be served a court process at its head office “by giving the same to any director, secretary, or other principal officer, or by leaving it at the office of the… company”. This is even the law and anything short of this smacks of improper service. In holding this view, I draw inspiration from the pronouncement of Musdapher, JSC, in the case of Kraus Thompson Org. Ltd. v. Unical (supra), at page 656, where he stated: “A corporate body in this context, either a company registered under the Companies and Allied Matters Act, 1990 or a statutory corporation such as the respondent in this case, can only be served under the relevant rules of court by giving the writ of summons or document to any director, trustee, secretary, or other principal officer of the corporate body to be served, or leaving the same at its registered or head office. It is bad or ineffective to serve the documents at any branch office.” See also, Mark v. Eke (supra) or (2001) 5 NWLR (Pt.865) 54; MTN Nig. Comm. Ltd. v. Bolingo Hotels and Towers Ltd. (supra). PER OBANDE OGBUINYA, J.C.A.
SERVICE OF COURT PROCESS: ON WHOM RESTS THE BURDEN OF PROVING LACK OF PROPER SERVICE OF COURT PROCESS
To begin with, it is incumbent on the first appellant to establish that it was served at its branch office in Kaduna South, Kaduna State, not at its head office in Lagos. The issue of service being one of jurisdiction, the first appellant by law is saddled with the herculean burden of the proving want of jurisdiction, see Our Line Ltd. V. S.C.C.(Nig.) Ltd. (2009) 17 NWLR (Pt. 1170) 382. PER OBANDE OGBUINYA, J.C.A.
SERVICE OF COURT PROCESS: WHAT ARE THE RECOGNIZED WAYS OF PROVING SERVICE OF COURT PROCESS
The law is settled that the two recognized ways, apart from physical appearance, of proving service are that there must be an affidavit of service sworn to by a bailiff or an officer of a court and the same produced before it, the court, see SGBN Ltd. v. Adewunmi (supra). PER OBANDE OGBUINYA, J.C.A.
SERVICE OF COURT PROCESS: CIRCUMSTANCE WHERE A PARTY WILL BE HELD TO HAVE WAIVED HIS RIGHT TO INSIST ON PROPER SERVICE
In the eyes of the law, the appellants having chosen the option of proceeding with the matter, despite their claimed irregular mode of service, had waived their right to insist on proper service. PER OBANDE OGBUINYA, J.C.A.
WAIVER: MEANING OF THE WORD “WAIVER”
In the case of Ariori V. Elemo (1953) 1 SC 13 at 22, Idigbe, JSC, defined the word waiver in these illuminating words: “By way of general definition, waiver is the intentional and voluntary surrender or relinquishment of a known privilege and or right, it, therefore implies a dispensation or abandonment by the party waiving a right or privilege which, at his option, he could have insisted on”‘. See, also, Anyanwoko V. Okoye (2010) 5 NWLR (Pt. 1188) 497.” PER OBANDE OGBUINYA, J.C.A.
SERVICE OF COURT PROCESS: WHETHER A PARTY IS AT LIBERTY TO FORGO HIS RIGHT TO PROPER SERVICE
Indubitably, the appellants’ right to proper service is personal to them. It is sui juris. Since it is their domestic right, they are at liberty to forgo it without insulting or causing any injury to the law. The appropriate maxim is, quilibet potest renunciare juri pro introducto – an individual may renounce a law made for his special benefit. PER OBANDE OGBUINYA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria
Between
1. UNITED BANK FOR AFRICA PLC.
2. A.L. ABDULRAHMAN – Appellant(s)
AND
1. MRS. UGOENYI
2. JOHN TANKO – Respondent(s)
OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment); This appeal arose from the judgment of the High Court of Kaduna State, presided over by Hon. Justice Umaru Adamu, delivered on 07/10/2004 in suit No. KDH/KAD/813/95 in which the respondents, as plaintiffs, sued the appellants/defendants for certain reliefs. The first respondent was substituted for the original first respondent, Timothy Ugoenyi.
As collated from the available records, the facts of the case are straight forward. The original first respondent was a customer of the first appellant bank. The second respondent was the son of one Tanko Auta (deceased) who executed a deed of legal mortgage in respect of his property being at No. 58 Makaranta Road, Angwan Yelwa, Kaduna in favour of the first appellant for banking facilities it granted to the original first respondent. He, Tanko Auta, deposited his title documents to the property with the first appellant.
Unfortunately, Tanko Auta died before the original first respondent could liquidate his indebtedness to the first appellant. Due to the non-liquidation of the debt, despite repeated demands, the first appellant instructed the second appellant to auction Tanko Auta’s mortgaged property. In the course of putting up an auction to achieve that, the respondents commenced an action against the appellants and claimed for: a declaration that the said mortgage had been determined, a declaration that the respondents were entitled to a release of the title documents to the mortgaged property and an order of injunction restraining the appellants and their servants from selling, assigning or disposing of the property, see page 19 of the printed record. Subsequently, the respondents applied for and obtained both ex parte and interlocutory injunctions restraining the appellants from selling, assigning or disposing of the property pending the determination of the motion on notice and the substantive suit respectively.
The appellants joined issues with the respondents on their suit by filing an amended statement of defence and counter-claim. In their counter-claim, first appellant claimed for a repayment of the sum of N514,002.60k the respondents were owning it, 21% and 10% pre and post judgment interests respectively and an order that it was entitled to dispose the mortgaged property, see page 41a of the record.
The matter went to trial. Three witnesses, including both respondents, testified for the respondents and they were duly cross-examined by the appellant’s counsel. The respondents closed their case on 06/06/2002, see page 72 of the record.
Thereafter, the appellants opened their case, on 28/07/2004, by calling a witness, Mr. A.A. Chilaka, who testified – in-chief, as DW1, and the matter was adjourned to 28/07/2004 for cross-examination. On that 28/07/2004, the witness could not be cross-examined because the respondents’ counsel asked for a stand down for his principal in Chambers to do that. The appellants’ counsel did not concede to the application for a stand down and the matter was further adjourned to 28/09/2004 for cross-examination of the appellants’ witness. On that 28/09/2004, the appellants, their counsel and the witness were not in court. The respondents’ counsel applied for the evidence of the witness, DW1, to be expunged and for the case to be adjourned for judgment, see page 95 of the record. The lower Court granted the application – expunged the evidence of DW1 and adjourned to 7/10/2004 for judgment. The court delivered its judgment on that 7/10/2004 and granted the respondents’ claims, on page 101a of the record, in the following terms:
“Consequently, I hereby give judgment in favour of the plaintiff in terms of the plaintiff statement of claim. I order as follows:-
1. I declare that mortgage in favour of the Defendant relating to the 2nd plaintiff property known and called No. 58 Makaranta Street, Sabon Yelwa Kuduna South has been determined and elapsed and is no longer, subsisting.
2. I declare that plaintiffs are entitled to the release and possession of the document title over said property.
3. I grant order of perpetual injunction restraining the Defendant, his servant and or agent from selling, assigning, disposing in any manner whatsoever interfering or disturbing the peaceful and quite (sic) possession by the plaintiff of the said property No. 58 Makaranta Street, Sabon Yelwa Kaduna South.
Judgment entered in favour of the plaintiffs.
Sgd: Umaru Adamu
Judge 7/10/2004”
Being dissatisfied with that judgment, the appellants appealed to this court. They promptly filed a notice of appeal, on 15/11/2004, hosting eight grounds of appeal contained on pages 102 – 109 of the record.
On 09/03/2011, the appeal, eventually, came up for hearing. There was evidence, from the register of the court, that the respondents’ Counsel was served with the appellants’ brief of argument on 11/04/2006 and with a hearing notice on 23/02/2011 for the proceedings of that day 09/03/2011. Despite the said service of those processes, both the respondents and their counsel were absent from court on that 09/03/2011. Consequent upon that service, learned counsel for the appellants, O.J. Opawale, Esq., moved the appellants’ motion on notice that the appeal be heard on the appellants’ brief of argument since the respondents failed to file their brief of argument. The court granted the application.
Sequel to the grant of that application, learned counsel for the appellants informed the court that the appellants’ brief of argument was deemed filed on 18/03/2006. He adopted the said appellants’ brief of argument as representing his arguments in support of the appeal. He urged the court to allow the appeal.
In the appellants’ brief of argument, they formulated five issues for determination to wit:
“(i) Whether the learned trial judge had the competence and jurisdiction to entertain the suit. (ground 1)
(ii) Whether the decision of the trial court is a nullity (grounds 2, 3 und 4).
(iii) Whether the learned trial judge was wrong in concluding that the purported enrolled order in Suit No’ KDH/KAD/118/90 dated the 30/04/92 constituted res judicata, and if the affirmative is the answer, whether Estoppel can ground a cause of action (ground 5).
(iv) Whether the respondent possesses the requisite locus standi to institute the action (ground 6).
(v) Whether the learned trial judge was right in giving judgment to the respondents in the circumstance of this suit and whether the judgment satisfies the qualities of a good judgment (ground and 8)”
ISSUE ONE:
On that issue one, learned counsel for the appellants submitted that the lower court had no competence to assume jurisdiction over the respondents’ matter because the conditions precedent, service of the processes at the head or registered office of the first appellant and on either its director, secretary, trustee or principal officer, were not fulfilled by the respondents. He noted that the originating processes were served on the first appellant at its branch office at Kaduna South in Kaduna and not at its registered office in Lagos. He referred to page 1 of the respondents’ writ of summons and paragraph 3 of their statement of claim and held the view that the respondents conceded that the first appellant was a limited liability company incorporated under the provision of the Companies and Allied Matters Act, and carrying on business as a banker. He referred to section 78 of the Act and order 12 rule 8 of the Kaduna State High Court (civil Procedure) Rules , 1987 in support of his submission’ He also relied on the cases of Kraus Thompson Organisation Ltd. v. Unical (2004) NWLR (Pt. 879) 631; Mark v. Eke (2004) All FWLR 1455 at 1478; MTN Nig Communication Ltd. v. Bolingo Hotels and Towers Ltd. (2004) 13 NWLR (Pt. 889) 117 at 125. He insisted, on the basis of those authorities, that the service of the processes on the first appellant was wrong in law and the lower court had no jurisdiction to hear the matter as service of court process was a condition precedent to assumption of jurisdiction. He cited the cases of Sken Consult (Nig.) Ltd. V. Ukey (1981) 1 SC 27; Madukolu V. Nkemdilim (1962) 2 SCNILR 341.
Learned counsel conceded that the appellants entered an unconditional appearance to the suit, participated in the proceedings and filed a defence and counter-claim. He however added that those steps did not amount to waiver of its right because the right to service was a statutory one, not jurisdiction on procedural matter, like service of writ outside the jurisdiction without leave, which it could waive. He relied on the case of Ndayako V. Dantoro (2004) 13 NWLR (Pt. 889) 189 at 219. He maintained that the appellants did not waive their right to object because it was an issue of jurisdiction which could be raised at any stage of the proceedings and even for the first time in the Supreme Court. He referred to the case of Olutola V. Unilorin,(2004) 18 NWLR (Pt. 905) 416 at 446. He noted that any decision made by a court contrary to a mandatory provision was a nullity, citing Menakaya V. Menakaya (2001) 16 NWLR (Pt. 735) 203 at 236 and Olutola Unilorin (supra). He persisted that the non-compliance with the statutory provisions regulating service on the first appellant went to the competence of the lower court over the matter, notwithstanding that it took steps before complaining. In support, he cited the case of Odu’a Invest. Co. Ltd V. Talabi (1997) 10 NWLR (Pt. 523) 1 at 21.
He further submitted that the second appellant was not served with the requisite processes and notice throughout the proceedings, referring to no particular portion of the record in support. He emphasized the law that service of processes was a fundamental condition precedent to the exercise of the lower court’s jurisdiction over the matter. He relied on the cases of Skenconsult (Nig,) Ltd. v. Ukey (supra); Mbadinuju v. Ezuka (1994) 10 SCNJ 109 at 121; Leedo Presidential Hotel Ltd. v. Bank of led (2001) 1 NWLR (Pt. 695) 633 at 658 – 659. He concluded that the failure to serve the second appellant rendered the proceeding, before the lower court, a nullity for want of jurisdiction notwithstanding the unconditional appearance entered for him on page 10 of the record.
ISSUE TWO
For and on behalf of the appellants, their learned counsel contended, on that issue, that the proceedings of 28/09/2004 and 7/10/2004, in the lower court, amounted to a nullity because it granted the oral application of the respondents’ counsel for adjournment for judgment, on 28/09/2004, without affording the appellants the opportunity of concluding their case and addressing it before delivering the judgment. He noted that what happened in the lower court was a denial of the appellants’ right to fair hearing. He persisted that the appellants: had other witnesses to call, were entitled to address the court below, were, supposed to close their case formally and were entitled to be served with hearing notices. He stated that due service of court process was a condition precedent for a court to hear any suit and non-service went to the root of any matter and a party affected entitled to have any order made set aside. He placed reliance on the cases of, SGBN Ltd V. Adewunmi (2003) 10 NWLR (Pt. 829) 526 at 539; Scoh-Emutakpor V. Ntavbe (1975) 12 SC 41; Eselemu V. Funkekeme (2004) All FWLR (Pt. 224) 2092 at 2102; Odutola V. Kayode (1994) 2 NWLR (Pt. 324) 1. Relying on the case of SGBN Ltd V. Adewunmi (supra), he remind the court of two ways to prove service of court process: that there must be an affidavit of service sworn to by a bailiff of the court and same must be produced before the court.’ Learned counsel maintained that the procedure adopted by the lower court in not ensuring that the appellants formally closed their case and addressed it, before adjourning for judgment, was denial of their right to fair hearing. He cited the cases of, Alsthom S.A. V. Saraki (2004) 3 NWLR (Pt. 91) 208, Ceekay Traders Ltd. V. General Motors Company Ltd. (1992) 2 NWLR (Pt. 222) 132; section 33 of the 1979 Constitution and order 36 rule 22 of the High court Rules. He specifically outlined the elements of fair hearing as stated in the case of Ndukauba V. Kolomo (2005) All FWLR (Pt.248) 1062 at 1613 – 1614.He urged the court to declare the judgment a nullity.
ISSUE THREE:
Learned counsel drew the court’s attention to the finding of the lower court, contained on pages 101- 101a of the record, and argued that it contained legal defects. He stated that the first, in that finding, was that the lower court used exhibit 2, an order dismissing a certain suit No. KDH/KAD/118/90 between UBA Ltd. v. Mr. Timothy Ugoenyi under order 36 rules 6 and 8 of the High Court Rules, as constituting estoppel when the parties and subject matter in that suit were different from those of the respondents’ suit. He added that exhibit 2 did not determine the right of the parties therein as the dismissal of the suit did not amount to a final decision thereon. In support of his arguments, he referred to the evidence of Pw3, court registrar, who tendered exhibit 2, on page 72 of the record.
He further argued that the burden was on the respondents, who set up the defence of res judicata to plead and establish same to the court’s satisfaction – that the appellants were relitigating same facts already decided. He insisted that the respondents failed to prove res judicata- that the parties and res in exhibit 2 were the same with those of the respondents’ case and that the decision in exhibit 2 was on merit and final. In support, he relied on the cases of, Adebo V. Onisola (2005) 2 NWLR (Pt. 909) 149 at 173 – 174; Obasi Brothers Merchant Co. Ltd. V. M.B.A.S. Ltd. (2005) AII FW/LR (Pt. 261) 216 at 231; Osunrinde V. Ajamogun (1992) 6 NWLR (Pt. 246) 156 at 232; Afolabi V Gov, Osun State (2003) 13 NWLR (Pt.836) 119 at 129 – 130.
The second legal defect, in that finding, according to learned counsel, was that the lower court did not advert its mind that estoppel would not ground a cause of action. Referring to paragraph 14 of the respondents’ statement of claim, he strongly argued that it was absurd to use estoppel as a sword instead of as a shield since if the plea of res judicata was established, the lower court lost jurisdiction over the matter. In support, he placed reliance on the cases of Ladimeji V. Salami (1998) 4 SCNJ 1 at 13; Masters of MV Delos v. Ocean Steamship (Nig.) Ltd. (2004) 17 NWLR (Pt.981) 88 at 104. He added that assuming, without conceding, that it was proper for the respondents to plead estoppel, as a cause of action, they failed to they prove it. He referred to the evidence of PW1 and PW2, on pages 58 and 67 of the record respectively, which said nothing about estoppel. He urged the court to resolve the issue in favour of the appellants.
ISSUE FOUR:
It was the contention of the learned counsel for the appellants, on that issue, that it was wrong for the lower court not to have considered the issue of locus standi averred in paragraphs 10 and 12(b) of the appellants’ further amended statement of defence and counter-claim on pages 39 and 40 of the record. He took the view that the respondents, particularly the second respondent, did not indicate on their writ or claim the capacity the action was instituted. He explained that the second respondent did not aver the capacity he sued, and that the property belonged to Tanko Auta. He relied on the cases of, NACB Ltd. V. Tunnung Ent. – Lad. (2004) 14 NWLR (Pt. 694) 551 at 572; Adewunmi V. A-G, Ondo State (1996) 8 NWLR (Pt- 464) 73 at 106, and Order 11 rule 7 of the High Court Rules to insist that their failure to disclose the capacity robbed the court below of its jurisdictions. He referred to paragraphs 2 and 7 of their statement of claim which, to him, contained terse averments. He added that the evidence of the respondents’ witnesses were inconsistent on the ownership of the property.
Learned counsel posited that the respondents did not prove their claims. He noted that their claims were declaratory claims that must be proved by cogent and convincing evidence. He stated the law that a person who asserted had the burden of proof and that pleading without evidence meant that it was abandoned and that evidence at variance with pleading went to no issue. He further attacked the evidence of PW1 as hearsay, as shown on page 58 of the record, and urged that it be rejected. He placed reliance on section 7 6 of the Evidence Act and the case of Okhunrobo V. Egharevba (2002) 9 NWLR (Pt. 771) 29 at 70 and urged that the issue be resolved in the appellants’ favour.
ISSUE FIVE:
Learned counsel for the appellants submitted that the lower court was wrong for not dismissing the respondents’ suit and entering judgment for the appellants on their counter – claim. He added that the evidence of the respondents were not credible while those of the appellants were unchallenged. He referred to exhibits 2 – 28 tendered by DW1 without objection. He persisted that the appellants discharged the burden of proof on them and were entitled to a grant of their counter-claim. He referred to section 135(1) of the Evidence Act; Bua v. Dauda (2003) 6 SCNJ 219 at 242; Adejumo v. Ayantegbe (1089) 6 SCNJ 76 at 84.
He held the opinion that the judgment of the lower court lacked the essentials of a good judgment. According to him, a good judgment must show: the nature of the action, the issue in controversy, a review of the relevant law applicable to a case, the findings of facts and conclusions and the reasons thereof. To support his view, he cited the case of Adeyemo v. Arokopo (1988) 2 NWLR (Pt. 79) 2003 (1995) 7 NWLR (Pt. 409) 481. He stated that the court below only reviewed the case and that the appellants suffered a miscarriage of justice.
He posited that the judgment given to the respondents was against the weight of evidence because the lower court did not do proper evaluation of the evidence and the decision would not stand. He cited the cases of Anyakora v. Obiakor (2005) All FWLR (Pt.268) 1662 at 1687; Rock Bottom Interior Ltd. V. Garba (2005) All FWLR (Pt. 271) 113 at 132; Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) o4J.He added that even if the appellants gave no evidence, though not conceded, they were still entitled to complain that the judgment was against the weight of evidence. He referred to the cases of Iragunima V. Uchendu (1996) 2 NWLR (Pt. 428) 30; A.G., Akwa Ibom State v. Essien (2004) All FWLR (Pt. 233) I730 at 1754. He urged the court to embark on a fresh evaluation of the evidence since the lower court failed in its duty. On the strength of those submissions, he urged the court to allow the appeal.
For a dispassionate resolution of the five issues crafted by the appellants, I will take them sequentially since the first four issues border on jurisdiction. On this note, I will kick – off with the resolution of issue one whether the lower court had the competence to entertain the respondents’ suit before it. The meat of the appellants’ grouse on this issue is that the first appellant bank was not served, with court processes at its registered office and the second appellant not served at all. Hence, he pressed the court to declare that the lower court was without jurisdiction to hear the respondents’ suit for want of improper service and non-service of the court processes on the first and second respondents respectively.
To do justice to this critical issue, a convenient starting point is to visit the provision of section 78 of the Companies and Allied Matters Act, Cap. C20 Laws of the Federation of Nigeria, 2004, which regulates service of court on companies such as the first appellant. It reads:
“78. A Court process shall be serviced on a company in the manner provided by the Rules of Court and any other document may be serviced on a company by leaving it at, or sending it by post to, the registered office or head office of the company.”
Section 78 of the Act passes the buck to the rules of the lower court as to the mode a company, like the first appellant, should be served a court process. To this end, the provision Order 12 rule 8 of the High Court Rules comes in handy. It states:
“ORDER I2
SERVICE OF PROCESS
A – SERVICE WITHIN JURISDICTION
“8. When the suit is against a corporation or a company authorized to sue and be sued in its name or in the name of an officer or trustee, the writ or other document may be served, subject to the enactment establishing such corporation or company or under which it is registered, as the case may be, by giving the same to any director, secretary, or other principal officer, or by leaving it at the office of the corporation or company.”
From the tenor of the provision of Order 12 rule 8 of the High Court Rules, the manner of service on a company is still subject to the provision of the legislation under which it is registered, that is, the provision of section 78 of the Act herein. To my mind, the two provisions are intertwined with regard to service of court processes on a company. In other words, they must be read together. A communal reading of the duo provisions reveals that a company, in the status of the first appellant, must be served a court process at its head office “by giving the same to any director, secretary, or other principal officer, or by leaving it at the office of the… company”. This is even the law and anything short of this smacks of improper service.
In holding this view, I draw inspiration from the pronouncement of Musdapher, JSC, in the case of Kraus Thompson Org. Ltd. v. Unical (supra), at page 656, where he stated:
“A corporate body in this con, either a company registered under the Companies and Allied Matters Act, 1990 or a statutory corporation such as the respondent in this case, can only be served under the relevant rules of court by giving the writ of summons or document to any director, trustee, secretary, or other principal officer of the corporate body to be served, or leaving the same at its registered or head office. It is bad or ineffective to serve the documents at any branch office.”
See also, Mark v. Eke (supra) or (2001) 5 NWLR (Pt.865) 54; MTN Nig. Comm. Ltd. v. Bolingo Hotels and Towers Ltd. (supra).
The nagging question, begging for an answer, is; whether the first appellant is qualified to benefit from this state of the law. I have my doubts. To begin with, it is incumbent on the first appellant to establish that it was served at its branch office in Kaduna South, Kaduna State, not at its head office in Lagos. The issue of service being one of jurisdiction, the first appellant by law is saddled with the herculean burden of the proving want of jurisdiction, see Our Line Ltd. V. S.C.C.(Nig.) Ltd. (2009) 17 NWLR (Pt. 1170) 382.
I have painstakingly foraged or leafed through the entire gamut of the 122-page record of proceedings and failed to locate a document showing the place the first appellant was served. Perhaps, in an apparent bid to satisfy this requirement, learned counsel referred to the summons and paragraph 3 of the respondents’ statement of claim, both on pages 1 and 18 of the record respectively. The relevant portion of that summons reads:
“Let UNITED BANK FOR AFRICA PLC ‘ of D.I.C ROAD KADUNA SOUTH in KADUNA SOUTH L.G.A of KADUNA ‘STATE within eight days after service of this Summons on him, inclusive of the day of such service cause an appearance to be entered for him to this summons which is issued upon the application of (1) TIMOTHY UGOENYI 2 JOHN TANKO of NO. 58 MAKARANTA STREET. U/YELW who claims’
SEE OVERLEAF.”
In the same vein, in paragraph 3 of the said statement of claim it was averred:
“3. The 1st defendant is a Limited Liability Company incorporated in Nigeria under the Companies Act and carries on the business of a banker”.
Those two processes, the key components of which are reproduced above, do not in the least, to my mind, demonstrate that the first appellant was served at its branch office in Kaduna South as stoutly canvassed by learned counsel. The law is settled that the two recognized ways, apart from physical appearance, of proving service are that there must be an affidavit of service sworn to by a bailiff or an officer of a court and the same produced before it, the court, see SGBN Ltd. v. Adewunmi (supra).
Learned counsel for the appellants, I must observe, appreciated this state of the law in issue two of the appellants’ brief of argument’ It follows that a bailiff of the lower court ought to have sworn to an affidavit of service deposing that he served the first appellant with the originating process – the summons – at where and on whom. Secondly, such an affidavit must be in the lower court’s file. This means that, if the first appellant knew it was going to make a heavy weather of improper service on it, the said affidavit should have been factored into the record of proceedings as a crucial court process. Curiously, the first appellant did not wake up, timeously, to that need. Nor did it state where it was served in its pleadings.
Since the printed record of proceeding is void of this signal court process, affidavit of service, I am highly hamstrung in ascertaining or discerning where the first appellant was served. In the glaring absence of the needed affidavit of service in the cold record of proceedings, this court is not a seer or clairvoyant to decipher where the first appellant was served with the originating process, see Sapo v. Sunmonu (2010) 11 NWLR (Pt.1205) 374.
At any event, the first appellant as well as this court are wholly bound by the record of proceedings in this appeal. Neither it nor the court has the licence of the law to go outside the documents in the record and nose around for a required one elsewhere. This agelong principle of law has been sanctified in an army of cases, see Ogidi V. State (2005) 5 NWLR (Pt.918) 286; O.O.M.F. Ltd. v. N.A.C.B. Ltd. (2008) 12 NWLR (Pt.1098) 412; Ekpemu Polo v. Edremoda (2009) 8 NWLR (Pt.1142) 166; International Bank Plc. V. Onwuka (2009) 8 NWLR (Pt. 1144) 462; Supo V. Sunmonu (supra).
In sum, I am of the humble view that an affidavit of service, sworn to by an officer of the court, showing where and on who the originating process was served is necessary for the first appellant to discharge that onerous burden of showing where it was served. Alas, it was a desideratum in the record of proceedings.
That is not the only hiccup in the first appellant’s path towards reaping from the law-that a company must be served at its registered office. In the first place, the appellants entered an unconditional appearance to the respondents’ suit, perhaps, on service of the originating processes on them, see page 10 of the record. Besides, the appellants went further to file other processes in the suit. They even filed a preliminary objection seeking to terminate the suit in limine, see pages 13-15 of the record. They were actively involved in the trial proper from 26/10/1999 to 28/07/2004. Indeed, the appellants, from the cradle of the case, actively participated in the proceedings in the lower court from 02/01/1996, when they filed their unconditional appearance, to 28/07/2004, when they felt shortchanged in the suit, a period of about eight years. During that protracted period of about eight years, which the action lasted, the appellants raised no eyebrows as to the improper and non-service of the originating process on them respectively. In legal parlance, they took steps in the proceedings without protesting against those later detected anomalies on the service.
The appellants continually took steps in the proceedings in the respondents’ suit, in the lower court, when they had the option to insist on proper service before partaking in it. In the eyes of the law, the appellants having chosen the option of proceeding with the matter, despite their claimed irregular mode of service, had waived their right to insist on proper service. In the case of Ariori V. Elemo (1953) 1 SC 13 at 22, Idigbe, JSC, defined the word waiver in these illuminating words:
“By way of general definition, waiver is the intentional and voluntary surrender or relinquishment of a known privilege and or right, it, therefore implies a dispensation or abandonment by the party waiving a right or privilege which, at his option, he could have insisted on”‘.
See, also, Anyanwoko V. Okoye (2010) 5 NWLR (Pt. 1188) 497.
Indubitably, the appellants’ right to proper service is personal to them. It is sui juris. Since it is their domestic right, they are at liberty to forgo it without insulting or causing any injury to the law. The appropriate maxim is, quilibet potest renunciare juri pro introducto – an individual may renounce a law made for his special benefit.
Incidentally, learned counsel for the appellants, vigorously, contended that the appellants’ participation in the proceedings in the lower court did not amount to a waiver of their right to service in the matter. With due deference to learned counsel, his argument is not in keeping with the law. On this score, I will take him through ex calhedra authorities to torpedo or deflate his seeming dazzling submissions.
In the case of Odu’a Investment co. Ltd. v. Talabi (supra), or (1997) 7 SCNJ 600 at 654 – 655, the appellants fully participated in the proceedings despite the fact that there was no proper endorsement on the writ served on it and it was given eight days, instead of thirty days, to enter appearance contrary to the provisions of sections 97 and 99 of the Sheriffs and Civil Process Act, Cap. 56 Laws of the Federation of Nigeria, 2004. The appellant later filed an application to set aside the service on it. It lost from the High Court of Lagos to the Supreme. Ogundare, JSC, lucidly stated:
“It follows, therefore, that where a defendant is served with a writ of summons in breach of sections 97 and 99 of the Act, he has a choice either to object to the service by applying to have it set aside and the court ex debito justitiae will accede to the application or ignore the defect and proceed to take steps in the matter. By entering unconditional appearance and filing pleadings, as in the case on hand, he is deemed to have waived his right to object and cannot later in the proceeding seek to set same aside because of the original defect. I am not unmindful of the fact that in Skenconsult and Nwabueze this court had held that – non-compliance with these sections would render the proceedings null void. It would appear that this declaration was unnecessary in those cases as the defendants ex debito justitiae entitled to have the proceedings set aside because (i) in Skenconsult there was no service at all on the 2nd defendant and the service on the 1st defendant was irregular and he did not waive the irregularity and (2) in Nwabueze, the service on the defendants were irregular and they did not waive the irregularity. In NEPA there was indication in the lead judgment of Muhammad, J.S.C., that there was no waiver which will suggest that had there being waiver, the decision might have been otherwise.
In Skenconsult, Nwabueze and NEPA, there was no waiver and this court in those cases, rightly in my respectful view, set aside the defect service on the application of the defendants. In Adegoke Motors, there was waiver and this court rejected similar application. And rightly, too, in my humble view.
From all I have been saying, my answer to the question set up in this judgment, therefore is that non-compliance with section 97 and/or section 99 of the Sheriff and Civil process Act and the rule of court requiring leave of the court or a judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled ex debito justitiae to have same set aside as was done in Skenconsult, Nwabaeze and NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused. I need point out, for the avoidance of doubt, that the power to set aside is without prejudice to the power of the court to allow, in appropriate cases, such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit.
Turning to the case on hand, the appellant from the various steps to it took in the proceedings after service on it of the writ of summons cannot now be hard to complain of defect in the issue and service of the writ. It is too late in the day to do so. He has waived his right to complain. The trial must go on. Technicalities are a blot upon the administration of the law and the courts have moved a long way from allowing them to make an ass of it and dent the image of justice.”
In another case of Ndayako V. Dantoro (supra), at page 219, Edozie, JSC, opined.
“It is noteworthy that a distinction must be drawn between two types of jurisdiction Viz-jurisdiction as a matter of a procedural law and jurisdiction as a matter of substantive law. Whilst litigant can waive the former, no litigant can confer jurisdiction in the court where the Constitution or a statute or any provision of the common law says that the court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the court e.g. where a writ has been served outside jurisdiction without leave. Thus, where an action was commenced by an irregular procedure and a defendant did not complain but took active part therein, he cannot later be heard to complain and take advantage of the irregularity.”
Recently, in the case of F. and F. Farms (Nig.) Ltd. V. NNPC (2009) 2 NWLR (Pt. 1155) 389 at 401 to 402, Tobi, JSC elaborately said of waiver.
“… In my view, for purposes of waiver, matters affecting the jurisdiction of the court should be categorized into two areas or compartments. These are jurisdictional matters affecting the public in the litigation process and those affecting the personal, private or domestic rights of the party. While the former cannot be waived, the latter can be waived in law. An example of the former is filing action in a court that has no jurisdiction to hear the matter. For example, filing an action in the High Court to determine a dispute between two States in the Federation of Nigeria. Certainly, a State High Court has no jurisdiction and as the issue, involves a public right, none of the parties has the competence to waive it. I come to the second. A good example is pre-action notice. In my view, service of pre-action notice is personal, private or domestic right of the party to be served. He is the beneficiary of the service and so can waive it all will or on terms. The right is not shared by members of the public or the public at large but is one specific to the party. If he decides to respond to the writ without service on him, he has the right to do so and the court cannot hold as the issue affects jurisdiction, he cannot waive his right to be served. In my view, where an issue of jurisdiction, like the issuance of pre-action notice is domestic to the parties, it can be waived at the pleasure and choice of the beneficiary.”‘
See, also, Mobil Prod. (Nig.) Unltd V. LASEPA (2002) 18 NWLR (Pt.789) 1; BBN Ltd. V. Olayiwola & Sons Ltd. (2005) 3 NWLR (Pt. 912) 434; Menakaya V. Menakaya (2001) 16 NWLR (Pt.738) 203; Yabugbe v. Police (1992) 4 SCNJ I16.
With these galaxy of binding authorities, it is crystal clear that the submissions of the learned counsel for the appellants to the contrary, on the point in the dispute, flies in the face of law. I must, without option, on the footing of stare decisis, totally assign myself with the current position of the law, that the right to the service of court process is a private one, which attaches to a person or a party, that can be forfeited by the party who possesses it in the realm of waiver. I hold the considered view that the appellant, in their infinite wisdom, allowed grass to grow under their feet when they failed to contest the alleged irregular service before taking part in the proceedings of the lower court.
The above analyses take adequate care of the contention of learned counsel that the second appellant was not served with the processes in the matter. On account of the foregoing, it seems clear to me that the submissions of the learned counsel for the appellants on these vexed issues stand on a very weak wicket even as they have been taken to the cleaners by the authorities dissected herein. In all, I hold that the lower court was cloaked with the requisite jurisdiction to hear the respondents’ suit before it. Consequently, I resolve this issue one against the appellants.
Having dispensed with issue one, I will proceed to attend to issue two, whether the decision of the lower court was a nullity. The foci of this issue are that: the lower court should not have expunged the evidence of DW1, it should have allowed them (the appellants) to call other witnesses and address the court before adjourning for judgment. For a balanced consideration of this terminal issue, I will cull from the record, on page 95 thereof, the proceedings of the lower court on 28/07/2004 and 28/09/2004, verbatim ac literatim, thus:
“28-7-2004
2nd Plaintiff present in court
Miss Remi for the Plaintiff
Mr. O.J. Opawale for the defendant
Court clerk: 1st defendant represented
Remi: My instruction by my principal he wants stand down.
Opawale: I am not conceding to stand down.
Court. Case adjourned to 28/09/2004 for cross-examination.
Sgd: Umaru Adamu
Judge 28/07/2004
28/09/2004
2nd Plaintiff present in court
Mr. S.M. Nwosu for the plaintiff
Nwosu: The matter defence and cross-examination. The defence counsel not in court. Witness to be cross-examined not in court.
Taking into consideration age of the case and time taken in prosecuting defence I am applying evidence of DW1 be expunged and the case adjourned for judgment.
I hereby grant the oral application. The evidence of DW1 who is not available cross-examination is hereby expunged. The case is adjourned for judgment to 07/10/2004.
Sgd: (Imaru Adamu
Judge 28/07/2004”
The law is that a grant or refusal of an application for adjournment is at the discretion of a Court, the lower court in the case in hand. Again, an appellate court is not permitted, by law, to tinker with an exercise of discretion of a lower court by substituting its view for that of the lower court. Before, an appellate court will justifiably interfere with such exercise of discretion, it be must be shown that the lower court did not carry out the exercise judicially and judiciously, see Oyegun V. Nzeribe (2010)6 NWLR (Pt.1220) 568. An appellate court will be right to tamper with an exercise of discretion of the lower court in the overriding interest of justice and apparent denial of fair hearing. On this, I draw on the case of Ceekay Traders Ltd. V. Gen. Motors Co. Ltd. (supra), at page 162, wherein Olutawura, JSC, observed:
“Why didn’t the learned trial judge the refuse the application for adjournment in the first place (as rightly observed by the Akpata JCA) and then culled on the plaintiff to proceed? It was because of the wrong assumption. One of the options open to the plaintiff’s counsel was to seek leave to withdraw the case more so when no evidence was offered. I quite appreciate that it is frustrating for a trial judge to be faced with situations where parties ask for adjournment day – in day-out, but the question is: what is the justice of the case? The defendants in the court of first instance had been compensated by the award of costs and in fact the second and third defendants were indifferent about the applications for adjournment. We must balance the need not to delay justice with an important requisite in administration of justice -non-denial of justice by not refusing adjournment where compensation by way of costs will be adequate and just. Delay of justice is bad, but denial of justice is worse and outrageous. The denial inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of justice. It is for this reason that when a case is not fought and heard on merit, the order to be made must be one that does not shut out a party permanently from obtaining justice. It must be appreciated that no court will grant frivolous application for adjournment. Applications for adjournment will be considered on their merits, the overriding consideration is the interest of justice.”
In another case of Alsthom S.A V. Saraki (supra), at pages 230 – 231, Kutigi, JSC, (as he then was) said:
“I think with all due respect, the court below was wrong. If the plaintiff never concluded giving evidence in their case especially when 1st P.W. was still in the witness box, it was definitely wrong for the trial court to have closed the case for them. The trial court was equally wrong when it further proceeded to call on the defence to open its case and to have refused the application for an adjournment which would enable it call its defence. The trial court was wrong again, and for the third time, when it proceeded to close the case for the defence. The parties herein were clearly never heard by the court. They were not given a fair hearing. This is fatal to the entire proceeding. The judgment delivered by the trial court being a nullity is therefore set aside. So also is the judgment of the Court of Appeal which was founded on it. You can not put something on nothing! The case is remitted to the Lagos State High Court for hearing the de novo by another Judge”.
Flowing from the proceedings in the lower court, it is axiomatic that it nipped the appellants’ defence in the bud when it jettisoned the entire evidence-in-chief of DW1 due to his absence and that of the appellants’ counsel. Its decision, from the record, was propelled or informed by the oral application made by learned counsel for the respondents. To my mind, that decision was a most injudicious exercise of discretion of the lower. I am emboldened in my view by what transpired on 28/07/2004 when it was the fault of the respondents, via their counsel, that DW1 was not cross-examined. Ditto for 06/07/2004, when DW1 concluded his examination-in-chief. Considering the events of those two dates, the lower court should have, in the spirit of quid pro quo, given the appellants a benefit of doubt by adjourning the matter to another date for cross – examination of DW1. The lower court, with utmost deference, was not fair to the appellants when it abruptly aborted their case on their first day of default after the examination-in-chief of DW1,
As if the removal of the evidence of the DW1 was not enough, the lower court acceded to the requisition of respondents’ counsel and adjourned the matter for judgment. By that adjournment, the appellants were not given the opportunity to call any other witness, close their case formally or address the court before judgment. In my view, the appellants were entitled, in law, to be allowed to ventilate their case by fielding another witness. They were also entitled to have their case formally closed before the lower court. Moreover, they had the right to address the court as entrenched in the section 258(1) of the 1979 Constitution, now section 294(1) of the 1999 Constitution. Alas, the lower court threw all that to the wild wind against the appellants. The lower court’s failure, intentionally or inadvertently, to minister to each of these situations was tantamount to a violation of the appellants’ inviolable right to fair hearing as enshrined in section 33 of 1979 Constitution. It also ran foul of the provisions of Order 36 rules 17, 18, 19, 20, 21 and 22 of the High Court Rules.
An issuance of hearing notices to the appellants to attend court and conclude their case would have met the justice of the matter. Such a procedure would have created an environment for fair healing to the parties. Let me place on record that fair hearing, which encompasses fair trial, entails, in the main, giving parties to any proceeding equal opportunity to ventilate their cases without undue interference by the court, including the lower court. The inviolate principle of fair hearing ties in the procedure adopted by a court in the determination of a matter and not in the rightness of the its decision.
The yardsticks to measure attainment of fair hearing by a court have been articulated and recycled in a litany of cases to include a party’s right: (a) To be present throughout any proceedings and hear the evidence against him (b) To cross-examine witnesses that testify against him and read all documentary evidence in any matter. (c) To know in advance, except in recognized exceptions, the nature of evidence prejudicial to him. (d) To know, before hand, the case he is to meet at the hearing .and have sufficient opportunity to prepare his defence. (e) To give evidence, personally or through witnesses, and make oral submissions. A court of law must hear both sides in case on all material issues and ensure that justice is not only done, but manifestly seen to the done, see Ceekay Traders V. Gen. Motors Co. Ltd (supra); Alsthom S.A.V. Saraki (supra); Ndukauba V. Kolomo (supra); Ekpeto V. Wanegho (2004) 18 NWLR (Pt. 905) 394; Ikweki V. Ebele (2005) 11 NWLR (Pt. 936) 397; Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 427; Newswatch Comm. Ltd. V. Atta (2006) 12 NWLR (Pt. 993) 144; Agbiti V. Nigeria Navy (2011) 4 NWLR (Pt.1236) 175.
It is germane to observe that once any of the attributes of fair hearing is breached by a court, its proceeding or decision, no matter the quantum of diligence, dexterity and intelligence injected into it, is completely mired in a nullity. This is a confluence point between violation of fair hearing and lack of jurisdiction in adjudication, see Tanko V. UBA Plc (2010) 17 NWLR (Pt.1221) 80; Leaders & Co. Ltd. V. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329; O.O.M.F. Ltd. V. NACB Ltd. (supra); Cotecna Int’l Ltd. V. Church gate (Nig.) Ltd (2010) 18 NWLR (Pt. 1225) 346.
By the same token, in the case of Kim V. State (1992) 4 NWLR (Pt.233) 17 the Supreme Court held:
“It is the law that once it is duty established that the right to fair hearing as entrenched under section 33 of the Constitution has been breached in a judicial proceeding, its breach vitiates the entire proceedings. Therefore when the appellate court finds that the right of fair hearing is breached, it shall have no alternative but to allow the appeal.
See, also, Alsthom S.A.V.. Saraki (supra) FRN V. Akubueze (2010) 17 NWLR (Pt. 1223) 525, Dingyadi V. INEC (No.1) (2010) 18 NWLR (Pt. 1224).
As the lower court failed to observe the rule of audi alteram partem, let the other side be heard, vis-a -vis the appellants, the end product of that infraction is that the whole proceeding, therein were a nullity. In the circumstance, I am bound to resolve this issue (two) in favour of the appellants. I will return to this issue once more at the twilight of this judgment.
That brings me to the consideration of the tertiary issue, id est, whether the lower court was right in its conclusion that suit No. KDH/KAD/118/90, contained in exhibit 2, constituted res judicata sufficient to ground a cause of action.
In looking at this issue, the averments in paragraphs 7, 8, 14 and 17 of the respondents’ statement of claim, found on pages 18 and 19 of the record, are of note. They state as follow:-
“7. That sometimes in 1990 a dispute arose as between the 1st plaintiff and the 1st defendant concerning the said facility and the 1st defendant instituted action against the 1st plaintiff to recover alleged outstanding balance of the said facility but the 1st plaintiff contended that the facility has been paid or that the 1st defendant was not entitled to any further payment.
8. That the 1st defendants’ action against the 1st plaintiff in SUIT NO. KDH/KAD/118/90; UNITED BANK FOR AFRICA LIMITED V. MR. TIMOTHY UGOENYI. Was dismissed on the 30th day of April, 1992. The plaintiff will find and rely on the order or judgment dismissing the suit.
14. The judgment of the court is suit No. KDH/KAD/118/90 between the 1st defendant as plaintiff and the 1st plaintiff as defendant constitute estoppel against the defendant against all matter relating to the claim of the 1st defendant in the suit.
17. The 1st defendant has inspite of the judgment in Suit No. KDH/KAD/118/90 refused and or neglected to release to the 2nd plaintiff his documents of title of his property inspite of repeated demands”.
Also, relevant is the finding of the lower court, sought to be impugned, contained on pages 101,- 101a. The fulcrum or operative part of the order, in exhibit 2, is encapsulated in that finding which reads:
Having said these, I wish to observe that the following issues are settled.
(a) The plaintiff is customer to 1st defendant.
(b) The plaintiff received loan facilities from the 1st Defendant gave security the C of O belongs to one Auta Tanko the deceased.
(c) The dispute arose between the 1st plaintiff and 1st Defendant and the matter went to court. The suit was pending, the circumstance arose and pending suit was dismissed
(d) This suit filed by the plaintiff seeking declaration against the defendant as contained in the paragraph of the plaintiff statement of claim.
Indeed there was roll order of the dismissal of the suit dated 30/4/1992 which stated.
Having considered the negative attitude of the plaintiff and the provision of 036 R6 & 8 HCR 1987 and dismiss the suit with N60. Cost to the defendant. This order still stand, it was not set aside or their aggrieved party did not appeal against the order”.
A holistic examination of these processes clearly indicates that the respondents raised the issue of res judicata in their pleadings and the lower court endorsed it for them in its judgment. The simple meaning of res judicata and the conditions for its applications were vividly explained by Tobi, JSC, in the case of Abubakar V. B.O. & A.P. Ltd (2007) 18 NWLR (Pt. 1066) 319 at 373 in this simple manner:
“The expression, res judicata means “a thing adjudicated”. It came out from the original expression, res judicata. The aim of the principle is to put to an end, a matter that was previously litigated by a competent court of law. It is to avoid duplicity or multiplicity of litigation. The principle is designed to save so much litigation.
The essence of the principle is that a previous judgment or a judgment previously handed down will constitute a bar to a present action if certain conditions are satisfied.
The conditions are as follows:
(1) the parties in the previous action and the present or current action must be the same;
(2) the subject matter must be the same;
(3) the issues must be the same;
(4) the court that decided previous action must be a court of competent jurisdiction”.
The whole essence of res judicata is predicated on two legal maxims. Interest rei publica ut sit finis litium – it is in interest of a state that there be a limit to litigation and nemo debet biz vezari pro una etcadem causa- no man should be troubled twice, see Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561.
Incontestably, the law is settled that where a plea of res judicata is successful, a court is not equipped with the jurisdiction to hear the matter in question and vice versa see, Ajiboya v. Ishola (2006) 13 NWLR (Pt. 998) 628; Adigun v. Gov. Osun State (1995) 3 SCNJ 1.
Then, did the respondents in the lower court, satisfy the conditions for the application of res judicata in their favour? In the first place, exhibit 2, which is also found on page 7 of the record, contains suit No. KDH/KAD/118/90 between: United Bank for Africa Ltd. V. Mr. Timothy Ugenyi as plaintiff and defendant respectively. The suit that led to this appeal has United Bank for Africa and A.L. Abdulrahman V. Timothy Ugoenui ‘ and John Tanko as defendants and plaintiffs respectively in the lower court. It stems from the above constitution or composition of the parties, in the two suits, that the parties were/are not the same. That is to say, the first condition failed in the court below.
For the second condition, same subject matter, exhibit 2 does not disclose the subject matter of the first Suit No. KDH/KAD/118/90. The averments in paragraphs 7, 8, 14 and 17 of the respondents’ statement of claim are not helpful either because there is no precise disclosure of the subject matter of that suit. Contrariwise, as already stated, at the dawn of this judgment, the respondents’ claims in the later suit were contained in paragraph 18 of their statement of claim, on page 19 of the record, in the manner following:
“18 Whereupon the plaintiffs claim against the defendants jointly and several as follows:
a. A declaration that the mortgage in favour of the defendant relating to the 2nd plaintiff’s property known as and called No.58 Makaranta Street, Sabon Yelwa, Kaunu South has been determined and/or elapsed and is no longer subsisting.
b. A declaration that the plaintiffs are entitled to the release and possession of the documents of title over property No. 58 Makaranta Street, Sabon Yelwa, Kauna South from the defendant.
c. An order of perpetual injunction restraining the defendant, his servants and/or agents from selling, assigning, disposing or in any other manner whatsoever interfering or disturbing the peaceful and quiet possession by the plaintiffs of the property, No. 58 Makaranta Street, Subon Yelwa, Kauna South”.
Having regard to the fact that there are no claims in the earlier suit to match against the ones of the later one, I hold the view that the respondents, who raked up that defence of res judicata, have not proved the second ingredients, Obviously, the burden is on them, the respondents, who pleaded the defence to establish it. The second ingredients, therefore, stands on a quicksand it collapsed too in the lower court.
With regard to the third condition, similarity of issues in two suits, the defective situation in the second condition, lopsided claims, seriously infects it and makes it a non-starter for the respondents. In a word, this ingredient was not proved by the respondents.
About the fourth condition, the two suits were instituted in the High Court of Kaduna State. This condition was proved in that the High Court of Kaduna State, that decided the previous suit, was a court of competent jurisdiction. I must hasten to add that the dismissal of that suit amounted, in law, to striking out in the sense that it was not on the merits. It was, therefore’ not potent enough to establish res judicata, see Obasi Brothers Co. Ltd. v. M.B.A.S. Ltd. (supra). In the aggregate, I hold that the respondents were unable to satisfy, in the lower court, the four conditions that must co-exist for a successful plea of res judicata.
Moreover, a plea of res judicata is not available to a plaintiff, the respondents in the lower court. The reason is not far fetched. It can only be used as an instrument of defence (shield) and as a weapon for prosecution by a plaintiff (sword). A plaintiff who is seeking the jurisdiction of a court to hear his matter cannot in the same breath carpet the same court for want of jurisdiction over the same action. For a plaintiff to plead res judicata, in his statement of claim, as did the respondents, is not only incongruous, but smacks of unfathomable double speak and approbating and reprobating at the same time. In law, the defendant has a monopoly of that defence. So, for a plaintiff to raise the defence of res judicata is akin to judicial suicide. In the case of Yoye V. Olubode (1974) 9 NSCC 404 at 414, Ibekwe JSC, captured the dismal effect of a plaintiff pleading res judicata in this alluring words:
“The plea of res judicata therefore, robs the court of its jurisdiction and that explains why, in practice the plea has always been used as a defence. It is a formidable weapon which may be pleaded in the statement of defence or in plaintiff’s reply to the statement of. defence, should the need arise. By its very nature res judicata should have no place in statement of claim. It is unreasonable for plaintiff to embody in his own claim the plea of res judicata. In our view, such course of action would lead to absurdity. Indeed, it is unthinkable that a very plaintiff who invokes the jurisdiction of the court should afterwards turn round to plead that the same court has no jurisdiction to hear his claim. We would liken such u plaintiff to a man who, why praying fervently for long life, yet carries in his pocket a time bomb which on explosion, would end his life”.
See, also, Osunrinde V. Ajauogun (supra) 1; Ladimeji V. Salami (supra); Witt & Busch Ltd. V. Dale Power System Plc. (2007) 17 NWLR (Pt .1062) 1.
All in all on this issue, the defence of res judicata was not available to the respondents in the court below. In the same manner, the finding of the lower court premised on the ground that the respondents proved it was, to all intents and purposes, perverse. A perverse decision is one that has no regard for facts, law and evidence before a court, see Udengwu V. Uzoegbu (2003) 13 NWLR (Pt. 836) 36. To me, the perversion in that finding snowballs into a miscarriage of justice in that it is sufficient to bend this issue in favour of the appellants.
In law, “a miscarriage of justice can only be said to present itself to a court of law when that court, after examination of the entire case, including the evidence, is of the opinion that it is reasonably probable that a result more favourable to the appealing party would have been reached in the absence of the error complained of’, see Akpan V. Bob (2010) 17 NWLR 10 NWLR (Pt. 1223) 421 at 479, per Muhammad, JSC, Amadi V. NNPC (2000) 10 NWLR (Pt.674) 76; Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282; Akayepe V. Akayepe (2009) 11 NWLR (Pt. 1152) 217.
It seems clear to me that without that obnoxious finding, the appellants would not have earned a more favourable result in the lower court. In effect, l am impelled to resolve issue three in favour of the appellants.
I move to consider the penultimate issue, issue four, viz, whether the respondents possessed the requisite locus standi to institute the action. As a necessary prelude to this issue, my first port of call is to find out the meaning of the legal mantra, locus standi. Etymologically, the term, locus standi, is a derivative of Latin Language with locus as place and standi as standing. The phrase, locus standi, is a legal jargon that simply connotes the competence or right of a person to seek redress in a court bf law when his right is curtailed by or trampled upon by person(s) or authority. In the case of Adesanya V. President’ of the FRN (1951) All NLR 1 at 21, a locus classicus on locus standi, Fatai-Williams, CJN, defined it thus:
“The term “locus standi” denotes legal capacity to institute proceedings in a court of law. It is used interchangeably with terms like “standing” or “title to sure”
See, also, Ladejobi V. Oguntayo (2004) 18 NWLR (Pt. 904) 149; Disu V. Ajilowura (2006) 14 NWLR (Pt. 1000) 783; Nyame V. FRN (2010) 7 NWLR (Pt. 1193) 344.
As to when a person has locus standi to prosecute a matter, His Lordship, Fatai-Williams CJN, in the same case of Adesanya V. President of the FRN (supra), at page 29, opined:
“…The law is now well settled that the plaintiff will have locus standi in matter only if he has a special legal right or alternatively, if he has sufficient or special interest in the performance of the duty sought to be enforced, or where his interest is adversely affected. What constitutes legal ‘ right, sufficient or special interest, or interest adversely affected, will of course, depend on the facts of each case”
Unarguably, where a party, invariably a plaintiff, is bereft of locus standi, his action will be weak kneed in that a court of law will be bereft of the jurisdiction or vires to entertain it, see Emezi V. Osuagwu (2005) 30 WRN 1 at 19 or (2005) 12 NWLR (Pt. 939) 340; A.G., Anambra State V. A-G; Fed. (2007) 13 NWLR (Pt. 1047) 4; Obande Ogbuinya, Understanding The Concept of Jurisdiction In The Nigerian Legal System, Enugu Snaap Press Ltd, 2008, 167 – 173.
To ascertain whether a party has the legal capacity to institute an action, it is a plaintiff’s statement of claim that will be examined. In the case of Adesanoye V. Adewole (2006) 14 NWLR (Pt. 1000) 247 at 274, Tobi, JSC affirmed that:
“It is elementary law that in order to determine locus standi of the plaintiff, the only court process to look at is the statement of claim. It is the statement of claim that should exclusively donate locus standi”.
See, also, Odenye v. Efunuga (1990) 7 NWLR (Pt. 146) 618; Disu V. Ajilowura (supra).
I have, taking refuge under these seminal prefatory remarks, carefully perused the respondents’ 11 -paragraph statement of claim contained on pages 18- 19 of the record. The synopses of the respondents’ grievances in that court process are: that the first respondent had discharged the repayment of the loan facility given to him by the first appellant bank which loan was secured with the second respondents’ property at No. 58 Makaranta Road, Sabon Yelwa, Kaduna South; that having repaid the loan facility, the instruments of title to that property be released to them and that the plaintiffs should be restrained from selling the said property
Flowing from the averments in the statement of claim, I am of the opinion that the respondents, as plaintiffs therein, showed that they had “special legal interest” in the said property or that their “interest will be adversely affected” if it (the property) was alienated by the appellants as enunciated in the cases of Adesanya v. President of the FRN (supra); Ladejobi v. Oguntayo (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 427; A.-G; Lagos state v. Eko Hotels Ltd (2006) 18 NWLR (Pt. 1011) 3228.
My view point is fortified by the fact that there is a wide chasm between possession of locus standi by a party in a matter and the success of it (the matter.) A party who is bestowed with the legal capacity to commence an action may not smile home with victory at the end of the day. As a matter of fact, such a plaintiff has a fifty – fifty chance of losing or wining his action. The overriding consideration is that a party, armed with locus standi is given the opportunity to ventilate his grievance or prosecute his claim in a court of law, the fortune of which case is indeterminate. The cases of Ojukwu V. Ojukwu (2008) 18 NWLR (Pt. 1119) 439 and Ladejobi V. Oguntayo (supra) lend credence to my view.
It remains a resolution of one outstanding tangential point on this issue. Learned counsel picked holes in the respondents’ failure to expressly state the representative capacity, in which they sued, on the writ contrary to the provision of Order 11 rule 7 of the High court Rules and submitted that the lower court thereby lost its jurisdiction over the matter. With due respect to learned counsel, the position of the law has inched away from his submission. Failure to express, or state the representative capacity of a party on a writ, or obtain leave of court to sue in that capacity, does not rob a court of its jurisdiction over a matter. Whether or not a party will obtain judgment in a representative capacity turns on a party’s pleadings and evidence. In the case of Salami v. Odumade (2010) 6 NWLR (Pt.1190) 228 at 252, Ogbuagu, JSC, observed.
“Failure to obtain leave to sue in a representative capacity does not vitiate an action. Infact, once pleadings and evidence establish conclusively a representative capacity and the fact that u case has been fought in that capacity, a trial court will be entitled to enter judgment for and against the party in that capacity, even if an amendment to reflect that capacity is not applied for and obtained. It wilt be otherwise if the case is not made out in a representative capacity”.
See, also, Ofia V. Ejem (2006) 11 NWLR (Pt. 992) 652; SPDC (Nig.) Ltd. V. Edamkue (2009) 14 NWLR (Pt. 1160) 1.
The Court of Appeal cases of NACB Ltd. V. Tunnung Steel Ent. State (supra) and Adewunmi V. A.-G., Ondo State (supra), on which learned counsel placed high premium on this point, cease to be dependable authorities in the face of the Supreme Court decisions aforementioned.
Before leaving this issue, learned counsel took serious swipe against the evidence of the respondents branding them hearsay, incredible and at variance with their pleadings. I will resist the inviting temptation of delving into this side issue and making finding(s) thereon. My reason will emerge in the fullness of time in this judgment. In all, for the reasons I have advanced above, I hold that the respondents were fully endowed with the necessary locus standi to commerce the action. l, therefore, resolve this issue (four) against the appellants.
Now, I will proceed to consider issue five, that is, whether the lower court was right in giving judgment to the respondents and whether the judgment satisfied the qualities of a good judgment. From the way this issue is couched, it consists of two prongs. The first is whether the lower court was right in awarding judgment to the respondents. The second is whether the judgment satisfied the qualities of a good judgment. For reasons that will unfold anon, I will by pass the first prong to examine the second one.
A convenient starting point in looking at the second prong is to bring to the limelight the qualities of a good judgment. In this wise, the case of Ogunyade V. Oshankeye (2007) 15 NWLR (Pt. 1057) 218 is waiting in the wing for utilization. Therein, Musdapher, JSC, at page 238; rolled out hallmarks of a good judgment as follows:-
“Now, it is settled law that a judgment of court must demonstrate in full a dispassionate consideration of all the issues properly raised and heard and must reflect on the result of such exercise. In other word, it must show a clear resolution of all the issues that arise for decision in the case and end up with an ultimate verdict which flows logically from the fact as pleaded and found proved. See: Ojogbue & Anor. v. Nnubia & Ors. (1972) 1 All NLR (Pt.2) 226. A judgment of court must be based and confined to the issues joined by the parties in their pleadings. See Asiemo v. Amos (1975) 2 SC (Reprint) 54 at 63. A judgment unrelated to the relief sought or the issues joined on a claim tried on pleadings cannot be sustained. See INCAR Nig. Ltd. v. Benson Transport Ltd. (1975) 3 SC (Reprint) 81., Metal Construction (WA) Ltd. & 2 Ors. v. Migliore & Anor (1979) 6 – 9 SC (Reprint) 118 – 124”.
Again, in the case of Garuba v. Yahaya (2007) 3 NWLR (Pt. 1021) 390 at 420, Ogbuagu, JSC, highlighted the important features of a good judgment this way:-
“Indeed, it is settled that writing a judgment, is an art in itself and that there are more than one way of going about it. That it is possible to have many variations as there are judges. See, the case of Onuoha v. The State (1988) 3 NWLR (Pt. 83) 460 at 464, (1988) 7 SCNJ (Pt.1) 20 at 24. What is essential is that all evidence adduced, must be considered. See the case of Awopejo & 6 Ors. V. The State (2011) 18 NWLR (Pt. 745) 430, (2001) 12 SCNJ 293 at 302. It is enough if the judgment shows adequately, perception of the fact of the case as disclosed in the evidence, evaluation of the facts, belief or disbelief of the witness, and findings based on the evidence accepted by the court”.
It is also imperative to bring to the fore the relevant parts of the judgment sought to be deciminated. The lower court, after restating the evidence of witnesses inclusive of those of DW1 it weeded out from the proceeding, stated, on pages 101 – 101a, as follows:
“(i) A declaration that the mortgage in favour of the defendant relating to the 2nd plaintiff’s property has been determined and or elapsed and is no longer subsisting.
(ii) A declaration that the plaintiffs are entitled to the release and possession of title document over property No 58 Makurata Street Subon Yalwa Kaduna South from the defendant.
(iii) An order or perpetual injunction restraining the Defendants, his servant and or agent from selling, assigning, disposing or in any other manner or whatsoever interfering (sic) or disturbing the peaceful and quite (sic) posession by the plaintiff of the said property No. 58 Makaranta Street, Sabon Yelwa Kaduna South.
The Defendants still maintain that there was outstanding loan which had not been paid. The Defendant counter claim the balance of indebtedness from the plaintiff and the interest accrued from the loan….
Consequently, I hereby give judgment in favour of the plaintiff in term of the plaintiff statement of claim. I order as follows:- ‘
(1) I declare that the mortgage in favour of the defendant relating to the 2nd plaintiff property known and called No. 58 Makaranta Street, Sabon Yelwa Kaunu South has been determined and elapsed and is no longer subsisting.
(2) I declare that the plaintiff is entitled to the release and possession of the document title over the said property.
(3) I grant order of perpetual injunction restraining the defendant, his servant or agent from selling and signing, disposing in any manner whatsoever interfering(sic) possession or disturbing the peaceful and quite(sic) position by the plaintiff of the said property No. 58 Makaranta Street, Sabon Yelwa Kaduna South.
Judgment entered in favour of the plaintiffs.
Sgd: Umaru Adamu
Judge 7/10/04”
I have married the reproduced portions of the judgment of lower court with the outlined qualities of a good judgment. Does judgment of the court below’ meet those qualities? I return a negative answer. In first place, what the lower court did was to restate or paraphrase the evidence of witnesses that testified before it. It, woefully, failed to evaluate their evidence. Doubtlessly, restatement or summary of evidence of witnesses is, a world away from an evaluation or appraisal of evidence. They are far from being coterminous. Drawing the wide gulf between the two terms in the case of Olagunju V. Adesoye (2009) 9 NWLR (Pt. 1146) 225 at 263 Ogbuagu, JSC, intoned’
“I will add as this is also settled that a summary on restatement of evidence by a trial court is not the same thing, as evaluation of evidence which entail the assessment of evidence so as to give value or quality to it.”
In another case of Oyewole V. Akande (2009) 15 NWLR (Pt. 1163) 119 at 147, Adekeye, JSC., observed.
“A trial court has a primary duty after hearing evidence from witnesses and watching their demeanour to evaluate relevant and material evidence adduced by both parties having regard to the pleading of the parties. The court must thereafter show how and why he came to its findings of fact and final determination of the issue before him.
See, also, Anyakor V. Obiakor (supra); Adeyemo V. Arokopo (supra).
Startlingly, the lower court counted, the evidence of DW1, which it had rooted out from the proceeding on 28/09/2004, in the judgment without assessing them with those of the respondents in any imaginary judicial scale with a view to discovering which side outweighed the other in terms of quality. Even, in the absence of the evidence of DW1 that was removed from the case, the appellants still had evidence in their favour. The evidence which they elicited from the cross-examination of the respondents’ three witnesses, PWI – PW3 , availed them just as they were as potent as evidence-in-chief, see Gaji V. Paye (2003) 8 NWLR (Pt. 823) 583, Akomolafe V. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338. The court below neglected to assess those evidence with those of the respondents.
The judgment fell short of a dispassionate consideration of facts and issues as showcased in the pleadings and evidence of parties before the lower coutt. There were no findings reached and reasons advanced in the judgment. In short, to my mind, the judgment was highly wanting or deficient in the required qualities of a good judgment. It is, with due reverence to the lower court, not worth the paper it is written. In the result, I resolve the second prong of this issue in favour of the appellant.
I reverse to look into the first prong of this issue. Under this prong, the appellants, through their counsel, invited the court to re-assess the evidence of the parties. Granted, I have the imprimatur of the law to do such an exercise, see Garubu V. Yahaya (supra). Nonetheless, I must decline that tempting invitation. The reason is plain I had reached a solemn finding that the entire proceeding was a nullity. With that finding, it will be wrong to embark in an exercise that is predicated on null proceeding as no one puts something on nothing, see Alsthom S.A.V. Saraki (supra), Aderibigbe v. Abidoye (2009) 10 NWLR (Pt.1150) 592.
Again, for the fact that the proceedings in the lower court were a nullity, my jurisdiction, under the provision 15 of the Court of Appeal Act, Cap. C36 of the Laws of the Federation of Nigeria, 2004, to enter judgment for the appellants, as requested by their learned counsel, is certainly denuded, see Olofu V. Itodo (2010) 18 (Pt.1225) 545.
These, also, account for my refusal to consider and make findings on the credibility or otherwise of the attached evidence of the respondents’ witnesses under issue four. To me, owing to the fact that this prong is a by-product of a nullity, it is also resolved in favour of the appellants. Altogether, I resolve issue five in favour of the appellant.
Before I pass my final verdict in this judgment, it will be recalled that I had resolved issue two, inter alia, in favour of the appellants that the proceedings in the lower court were a nullity. Ordinarily, with that harmful finding, I ought not to have proceeded to deal with the other issues in this appeal. Nevertheless, I had to consider the other issues. The reason is not far to seek. This is a penultimate or second to the last court on the judicial ladder in this country. It is on this premise that the law insist that I should proceed to examine other issues in case the apex Court does not fall in with my reasoning on the said issue two. This is aimed at protecting the priceless right of parties to fair hearing as engrained in section 33(1) of 1979 Constitution. This informed the pronouncement of Muhammad, JSC, in the case of Tanko V. UBA Plc. (2010) 17 NWLR (Pt.1221) 80 at 92, that.
“The position of the law is very clear that the Court of Appeal has primary duty to consider all issues brought to it for consideration especially this fundamental issue which borders on fair hearing
This applies with equal force to all courts of law. Perhaps the only exception to that general rule is the Supreme Court which may decline to consider all issues placed before it by an appellant once it is satisfied that the just resolution of the appeal can turn on the only issue(s) decided by it. It is thus, a statutory responsibility of all courts to consider adequately and properly all issues placed before them. Failure to do so will lead to denial of fair hearing which is capable of rendering any proceedings a nullity.See, also, Ada v. NYSC (2004) 13 NWLR (Pt.891) 639.
The drastic penalty for a matter marooned in a nullity is not a matter for conjecture. In the case of Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 at 539, the Supreme Court, per Nnaemeka-Agu, JSC, vividly captured the caustic aftermath of nullity thus:-
“When a thing is a nullity, it is as if the thing never existed. When a marriage is null and void it is as if the status of matrimony had never been conferred: See Vol. 12 Hals. Laws of England (3rd Edn) P.226. Similarly when a judgment or order is a nullity it is as if it was never given or made. It can be set aside without much ado”.
See, also Bello v. INEC (2010) 8 NWLR (Pt.1196) 342.
Besides, a null decision or proceeding savours of a hollow victory in the sense that it bestows no enforceable right on its beneficiary nor does it impose any obligation on the losing or victim party. The Supreme, Court had set a seal on this principle, see Ajiboye V. Ishola (2006) 13 NWLR (CP.998) 628; Oyeneyin V. Akinkugbe (2010) 4 NWLR (Pt.1184) 265.
On the footing of this hallowed principle of law, I hold that the judgment of 07/10/2004, delivered by the court below, conferred no enforceable right on the respondents just as it saddled no obligation on the appellants.
More than that, having found that the appellants’ right to fair hearing was breached, I “have no alternative but to allow the appeal,” see Kim V. State (supra); FRN V. Akubueze (supra). I will not do otherwise in order not to incur the wrath of the law.
Overall, having regard to the reasons advanced herein, I hold that the appellants’ appeal is meritorious. In the circumstance, it deserves to be allowed. Consequently, the appellants’ appeal, filed on 15/10/2004, be and is hereby allowed. Accordingly, I hereby set aside the proceeding and judgment of the lower court, delivered on 07/10/04, and remit the case back to the High Court of Kaduna State for trial de novo before another Judge. I make no orders as to costs.
THERESA NGOLIKA ORJI-ABADUA J.C.A.: I had the privilege of reading in draft, the judgment of my learned brother, Obande F. Ogbuinya, J.C.A. and would not mince words to say, I wholly, without reservations, agree with his analytical approach and consideration of all the issues propositioned by the Appellants in their Brief of Argument, and, most importantly, his reasoning and conclusion therein. His Lordship performed an excellent job. I would only add with regard to issue No. 2 that to allow the judgment of the trial Court to stand would have exhibited with reckless abandon the typical saying of ‘slaughtering justice at the altar of speed’. What the trial Court showcased in its conduct of the proceedings was a mindless insensitivity to the societal yearnings for justice. If I may ask; “what was the trial Court’s interest in the matter that recklessly propelled it to expunge the evidence of D.W.1 and immediately adjourned the suit for judgment? I thank God there are still checks and balances in every sphere of human relations, otherwise, if men were God, some humans would have been eternally banished to hell. The conduct of the trial court in this regard is condemnable and unacceptable by every legal standard. As an arbiter in the temple of justice, the learned trial Judge should have adopted a dispassionate approach and ensured that justice was administered to all and sundry, even to those he believed had the most unfounded case. The Appellants must have been bathed in excruciating injustice, by the unjustifiable conduct of the learned trial Judge. On this issue alone, the lower court’s judgment is hereby set aside by me.
I would, however, opine with greatest respect to the Appellants that the allegation of lack of locus standi of the 2nd Respondent is unsubstantiated. It was averred at paragraph 2 of the Respondents’ Statement of Claim that the 2nd Plaintiff was the oldest son of Tanko Audu, late, his successor in title and legal representative under Native law and custom. Then, in his viva voce evidence before the trial Court, he explicitly stated, he obtained letters of administration after his father’s demise, although, he wavered immediately. He said he was representing his brothers and sisters by his position as the first son of their late father. It is settled that a party has no locus standi in a controversy if he does not have sufficient personal interest in the subject matter or the outcome of the controversy or if he has not suffered or doesn’t stand to suffer some injury either by the enforcement or threatened exercise of some power, authority or right. See Ironbor vs. Federal Mortgage Insurance (2009) 15 NWLR Part 1165 p.506. I believe, this point was sufficiently established. hed.
Needless over flogging the issues that had carefully been considered in the lead judgment. Therefore, I have no hesitation, whatsoever, in allowing this appeal. Accordingly, this appeal is allowed by me and I abide by all the consequential orders made in the leading judgment.
JOSEPH TINE TUR, J.C.A: I have read in advance the judgment delivered by my Lord Obande Ogbuinya JCA and I agree with his conclusions. I wish to refer to Order 13 rule 7 of the Kaduna State High Court (Civil Procedure) Rules cap 67. Laws of Kaduna State 1991 which provides as follows:
“7. A defendant before entering an unconditional appearance shall be at liberty (without obtaining an order to enter, or entering, a conditional appearance) to take out a Summons to set aside the service upon him of the writ or other process, or to discharge the order authorizing such service”.
What the Appellant’s learned counsel wants from the Appeal Court is what Counsel should have done at the Court of trial by applying by way of summons to have the writ and other processes set aside before entering appearance and filing pleadings. They had the liberty to do so but waived it and proceeded to hearing. They have waived the right to complain on appeal. Moreover, the issue of service of process in this case cannot be raised in this Court without the affidavit of service not forming part of the record. In Chiekwe vs. Obiora & Ors. (1960) 5 FSC 258 the issue of the jurisdiction of the Native Court Ede to determine or not the land matter in dispute was raised for the first time in the Federal Supreme Court. In rejecting argument on the issue Bairamian F.J., held at page 261 as follows:
“It appears from the High Court judgment that the defendant was the first to sue about the land in dispute; he did so in the Ede Native Court, which granted him a declaration of title; and the defendant pleaded that judgment in the High Court suit, adding that the plaintiff had not appealed against it. The plaintiff’s argument was that the defendant could not rely on that judgment because it was given after he, the plaintiff, had begun his suit in the High Court. The trial judge decided that the defendant could rely on that judgment and struck out the claim.
The plaintiff lost his appeal. The Federal Supreme Court judgment is reported very shortly at p. 69 of the 1958 Volume. The head-note begins thus:
“The appellant in proceedings in the High Court contended that previous proceedings in the Native Court in relation to the same question created no estoppel in that the Native Court had no jurisdiction therein, the subject matter being outside its area of jurisdiction.”
That sentence is not borne out by the High Court judgment as reported. It seems however, that the plaintiff on appeal attacked the competence of the Native Court. The following sentence is taken from the judgment on appeal.
“There is nothing in the record to show that the Ede Native Court, to which the case was transferred for rehearing by the Oshun Division Appeal Court, had no jurisdiction to hear the case.”
Had the point been taken in the High Court that the Ede Court had no jurisdiction; there would have been some evidence in the trial Court on that point. The question whether the Ede Court’s jurisdiction, covered the land in dispute was one to be settled by evidence, but there was no evidence in the record. The plaintiff could not usefully argue that question on appeal without any evidence; nor could he have asked the Court of Appeal for leave to adduce such evidence on appeal because he should have adduced it in the trial court.”
Jurisdiction of the Ede Native Court could only be proved by tendering the warrant establishing it at the trial but not the appellate Court. In this case proof of service should have been tendered in the Court of trial and the learned trial Judge given the opportunity to comment on it.
I shall further comment on the meagerness of the judgment of the learned trial judge as pointed out by my Lord by referring to the judgment of the Supreme Court in Willie John and Edem Dan (1967) NMLR 101. There the two appellants were charged on two counts of house breaking and stealing contrary to Sections 411(a) and 390(4)(b) respectively of the Criminal Code. In finding them guilty and sentencing them to various terms of imprisonment his Lordship at the trial Court said as follows”
“The accused are charged with house breaking and stealing contrary to Sections 411(a) and 390 (4)(b) of the Criminal Procedure Code Law. The case is one of facts. The evidence against each of the accused is overwhelming. It is a surprise that none of them pleaded guilty. I find each of them guilty on the two counts.”
In allowing the appeal and sentence and remitting the case for retrial by another judge the Supreme Court held at page 102 as follows:
“With this concluding part, of the trial we feel somewhat concerned. Section 245 Criminal Procedure Act dealing with conclusions of a trial is as follows:
“The judge or magistrate shall record his judgment in writing and every such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decisions and shall be dated and signed by the judge or magistrate at the time of pronouncing it.
Provided that in the case of a magistrate in lieu of writing such judgment it shall be sufficient compliance under this section if the magistrate:
(a) records briefly in the book his decision thereon and where necessary his reasons for such decision and delivers an oral judgment, or
(b) records such information in a prescribed form.”
The section clearly lays it down that a judgment at any rate of the High Court must contain the point or points for determination, the decision thereon and the reasons for the decision. It is not enough to say as the learned judge put it in this case, that the facts are overwhelming. In view of the fact that we have had before us lately judgments somewhat similar to the present one, we feel bound to say that we think the learned judge’s judgment is far too meager and does not satisfy the requirements of the section. As we said in another connection in R. vs. Fadina (1):
“An accused person is entitled to have his case fully considered on the point or points for determination, also to the decisions thereon and the reasons for such decisions.”
Here there is no review of the evidence and no review of the defence made by either appellant which, according to Section 245 above, is an essential preliminary to conviction and without which the conviction cannot be allowed to stand.”
A judgment emanating from a superior Court of record whether in civil or criminal trials should be guided by the advice of the Supreme Court. See also Nwankpu vs. Ewulu (1995) 7 NWLR (Pt.407) 269 at 288 applying Woluchem vs. Gudi (1981) 5 SC 291. That was not the case in this case hence I also allow this appeal.
Appearances
O. J. Opawale, Esq.For Appellant
AND
No representation for the respondentsFor Respondent
