UWAH PRINTERS NIGERIA LTD. & ANOR v. EMMANUEL UMOREN(2000)

UWAH PRINTERS NIGERIA LTD. & ANOR v. EMMANUEL UMOREN

(2000)LCN/0863(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of July, 2000

CA/C/238/98

JUSTICES

DENNIS ONYEJIFE EDOZIE Justice of The Court of Appeal of Nigeria

OKWUCHUKWU OPENE Justice of The Court of Appeal of Nigeria

SIMEON OSUJI EKPE Justice of The Court of Appeal of Nigeria

Between

UWAH PRINTERS (NIG.) LTD.
SUNDAY JOSEPH UDOH – Appellant(s)

AND

EMMANUEL UMOREN

(Suing as Receiver to Union Bank Plc.) – Respondent(s)

RATIO

WHETHER OR NOT WHERE SERVICE OF PROCESS IS REQUIRED, FAILURE TO SERVE IS A FUNDAMENTAL VICE AND THE PERSON AFFECTED BY THE ORDER BUT NOT SERVED WITH THE PROCESS IS ENTITLED EX DEBITO JUSTITIAE TO HAVE THE ORDER SET ASIDE AS A NULLITY

It is well settled that where service of process is required, failure to serve is a fundamental vice and the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set aside as a nullity. Such an order of nullity becomes a necessity because due service of process is a condition sine qua non to the hearing of any suit: See Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6; Scott-Emuakpor v. Ukavbe (1975) NSCC 435. This time honoured principle was recently re-echoed by the Supreme Court in the case of Wema Bank (Nig.) Ltd. v. Odulaja (2000) 7 NWLR (Pt.663) 1 at 7 where Mohammed, JSC observed: “Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void because the court has no jurisdiction to entertain it. See Obimonure v. Erinosho (1966) 1 All NLR 250.” PER EDOZIE, J.C.A.

OPENE, J.C.A. (Delivering the Leading Judgment): The events resulting to this appeal is that the respondent in this appeal, Emmanuel Umoren (Suing as Receiver to Union Bank), on the 9th day of September, 1996, filed an originating ex-parte application at the High Court of Akwa Ibom State holding at Uyo in which he prayed the court as follows:-

“(a) An order directing the Commissioner of Police, Akwa Ibom State to provide police protection to enable the applicant to move the mortgaged assets of the respondent company from the site at Km 3 Oron Road, Eket, to the Union Bank Regional office at Port Harcourt, Rivers State.

(b) And for any further order(s) as this Honourable court may deem fit to make in the circumstances.”

The application was supported by an affidavit sworn to by the respondent.

On 12/9/96, the application was heard in the absence of the appellants who were the respondents and the order was accordingly granted as prayed. The order was not served on the appellants but when they became aware of it, they applied to the lower court to discharge the order but the application was refused and this appeal is against the said ruling delivered on 22/2/98.

The appellants filed their brief of argument but the respondent who was duly served with this brief of argument and other process of this court did not file his respondent’s brief. He was also served with the appellants’ motion praying this court “that the appeal be set down for hearing and be heard on the appellants’ brief alone, the respondent having neglected to file respondent’s brief”.

When the motion came up for hearing on 4/4/2000, he was also not in court. The motion was heard and granted and the appeal was then fixed for and heard on 9/5/2000, solely on the appellants’ brief. The only issue identified in the said brief for determination by the court is whether the refusal by the learned trial Judge at the court below to discharge the ex-parte order is justifiable or sustainable in the circumstances of this case.

In the appellants’ submission, the learned Senior Counsel, Chief Udechukwu, SAN, made three propositions namely:-

“(a) That the originating process is incompetent and therefore, the court below lacked jurisdiction to entertain.

(b) That the order made by the court below on the 12th of September, 1996, was made in breach of the audi alteram partem rule and is pro tanto unconstitutional, null and void and therefore made without justification.

(c) That by reason of (a) and (b) above, the court below had a duty to set aside the said order upon the appellants’ motion.”

It was argued that it is clear from the records that the order made ex-parte upon the application of the respondent was made in the absence of the appellants, that the relief granted was one carrying very serious consequences affecting the property and assets of the appellants and that such order ought not have been made in their absence.

It was also argued that the learned trial Judge observed that the order is unconstitutional and that he ought to have set it aside and that it is a grave error for him to accept the submission made to him that the appellants have no locus standi to challenge the order and that if the learned trial Judge had properly adverted to paragraphs 1 to 18 of the 2nd appellant’s affidavit sworn in support of the appellants’ application that the issue of locus standi raised by the respondent would not have impressed him especially in view of the decision of the Court of Appeal in UBA Trustees Ltd. & Anor. v. Nigergrob Ceramic Ltd. (1987) 3 NWLR (Pt.62) 600. It was submitted that it is wrong to imagine that because the respondent commenced the originating ex-parte application “Suing as Receiver to Union Bank Plc.” that that automatically abrogates the powers of the appellants to take steps to challenge an order made concerning their property and that the appellants had locus standi to challenge the order made in their absence which denied them an opportunity of challenging the respondent both as to his authority, the validity of his appointment and the constitutionality of the proceeding commenced by him. It was also submitted that the proceeding at the lower court was improperly constituted and that it was defective and that the appellants whose asset and property are in jeopardy were never heard on any aspect of the case and that they were denied their right to challenge the proceedings on the ground of lack of locus standi on their part. A perusal of the motion ex-parte shows that it originates the process in this proceeding. It is not based or emanated from any suit whether subsisting, contemplated or concluded and as it was submitted in the appellants’ brief, under Akwa Ibom State High Court (Civil Procedure) Rules 1987, which is the “Enabling Rules”, an ex-parte application can only be entertained as an interlocutory application in a pending suit and within the con of Order 8 Rules 1(1) and 1(7) & (2) reads:-

“1.(1) Interlocutory applications may be made at any stage of an action.

7.(1) No motion shall be made without previous notice to the parties affected thereby.

(2) Notwithstanding paragraph (1), the court if satisfied that to delay the motion till after notice is given to the parties affected would entail irreparable damages or serious mischief to the party moving, may make an order ex-parte upon such terms as to costs or otherwise and subject to such undertakings, if any, as the justice of the case demands.”

Order 1 Rule 2(3) of the said rules states:-

“Proceeding may be commenced by originating motion or petition where by these rules or under any written law the proceedings in question are required or authorized to be so begun but not otherwise.”

It can be seen that there is nothing in the said rules or other law that permits or authorises any proceeding at the lower court to be commenced by an originating motion or originating ex-parte motion.

Order 12 Rule 1(2) stipulates:-

“Except as otherwise prescribed by any of these rules, an originating process shall be served personally by delivering to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original process filed, without exhibiting the original thereof.”

Order 12 Rule 1(2) above clearly prescribes that an originating process in a suit should be served on the parties. In the instant case, the appellants were designated as the respondents but they were not served and the Commissioner of Police, Akwa Ibom State to whom the order is directed is not even made a party.

It cannot be over-emphasised that where a party is entitled to notice of the proceeding and there is failure to serve him, such failure is a fundamental defect which goes to the root of the competence or jurisdiction of the court to deal with the matter; service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or his counsel must be those fundamental conditions precedent required before the court can have the competence and jurisdiction. See Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6; Leedo Presidential Motel Ltd. v. Bank of the North Ltd. (1998) 10 NWLR (pt.570) 353; Obimonure v. Erinosho (1966) 1 All NLR 250; Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55) 179; Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

It is also a cardinal principle of our jurisprudence that where the interests of the other party will be adversely affected motion ex-parte is most inappropriate, the relief sought in the present case directly and adversely affected the interests of the appellants and failure to serve them robs the court of the jurisdiction or competence to entertain the matter. I entirely agree with appellants’ submission that the procedure adopted in this matter is unknown to the law and that the court lacked the jurisdiction to entertain it.

The appellants in the affidavit in support of their motion to set aside the exparte order stated all the facts and the circumstances of this case and for the purposes of clarity it will be necessary to set out the relevant parts of the affidavit at pages 66 – 77 and they read as follows:-

“1. That I am the Chiefs Executive and Managing Director of Uwa Printers Nigeria Limited and the 2nd applicant in the application supported by this affidavit.

That I have the consent of the respondent applicant to depose to this affidavit and I make same on behalf of us.
That on the 24th day of September, 1996 my counsel, Obot E. Obot, Esquire, appeared before His Lordship sitting as the vacation Judge in Uyo, Akwa Ibom State to apply for certain reliefs on behalf of Uwa Printers Nigeria Limited in connection with the debenture facility granted the said Uwa Printers Nigeria Limited by the Union Bank of Nig. Plc. Copies of some of the processes which were filed by the said counsel on behalf of Uwa Printers Nig. Ltd. are hereto exhibited as Exhibits A- A5.
That the application of Uwa Printers Nig. Ltd. in the suit aforementioned was principally for the leave of court for writ of summons to be issued and served on Union Bank of Nig. Plc and Emmanuel Umoren outside the jurisdiction of the Akwa Ibom State High Court and for the court to permit the hearing of the application during the annual vacation.
That while in the preliminary or introductory stage or moving the application, my counsel was informed by His Lordship, who presiding as the vacation Judge that a certain order has already been granted against Uwa Printers Nig. Ltd. upon the application of one Emmanuel Umoren; this, my counsel informs me and I verily believe him.
That as a result of the fact deposed to in paragraph 5 hereof, the court could not hear counsel on the application of Uwa Printers Nig. Ltd. and the matter had to be adjourned sine die to enable counsel find out whether the suit of Uwa Printers Nig. Ltd. would not constitute a multiplicity of suits on the same subject-matter.
That Emmanuel Umoren obtained the order on the 12th day of September, 1996 but deliberately refused to serve a copy thereof on us nor were we aware of the pending order or any suit filed by Emmanuel Umoren against us until the 24th day of September, 1996.
That our counsel was informed on enquiry at the registry of the Uyo High Court about the order obtained by Emmanuel Umoren a copy whereof is hereto exhibited as Exhibit ‘B’.
That our counsel, Obot E. Obot, Esq. informs me and I verily believe him that upon further enquiry he became aware that Emmanuel Umoren did not obtain the leave or permission of the court for the matter to be heard on annual vacation and that there was no substantive suit nor a motion on notice pending before the court upon which the ex-parte application of Emmanuel Umoren was predicated.
That Emmanuel Umoren has not been properly appointed a Receiver to the Union Bank of Nig. Plc. and his purported appointment is being questioned and challenged in the action of Uwa Printers Nig. Plc. in respect whereof an application for leave to issue and serve writ of summons outside the jurisdiction is now pending in court.
That the applicants herein dispute and challenge the capacity under which Emmanuel Umoren obtained the order of 12th September, 1996.
That the application of Emmanuel Umoren upon which the order was granted was brought in bad faith and the order is prejudicial to the existence and smooth functioning of the applicants herein.
That there is no arrangement to wind up the Printing business of the Uwa Printers Nig. Ltd. or the company itself and there has not been any arrangement to sell our equipment rather we have concluded arrangements with financiers for funds to revitalise the production and revenue base of the said company.
That Emmanuel Umoren is colluding with some highly placed officers of the Union Bank of Nig. Plc to frustrate our company.
That the machines of the company for which the order has been granted for the police to assist in removing to the Regional Headquarters of the Union Bank of Nig. Plc. did not constitute part of the mortgage assets.
That the assets of the company sought to be removed are worth several millions of naira far higher than the money being owed the Union Bank of Nig Plc. by the Uwa Printers Nigeria Limited.
That there is a suit pending already in the Federal High Court, Calabar against the Union Bank of Nig. Plc. on the subject of the Debenture transaction and the same was adjourned to the 11th day of November, 1996, for report of settlement. The suit number is FHC/CA/M16/96 as per Exhibit C hereto.
That the suit in the Federal High Court, Calabar concerns the same subject-matter in ex-parte motion of Emmanuel Umoren and the same has been pending before the purported appointment of Emmanuel Umoren as a Receiver.”

The learned trial Judge in his ruling at pages and 120 121 of the Records observed:-

“The order sought to be set aside is Exh. ‘B’ to the affidavit in support of this motion. It is dated the 12th of September, 1996. By order 4 Rule 2 of the High Court Rules reproduced above, 12th September, 1996 was undoubtedly vacation period. If the action was urgent, all the parties concerned ought to have made a request to the Judge. In this late, the respondent brought an ex-parte application and obtained the order without the knowledge of the applicants or their being given the opportunity to be heard. This is a contravention of the provisions of Order 48 rules 5 (1) and (2) High Court Rules in appropriate case, such an order would be set aside:- Saude v. Abdulahi (supra). There would also be a contravention of the principles of fair hearing as enshrined in section 33 (1) of the 1979 Constitution of Nigeria and Order 33 rule 1(2) and (3) of the High Court Rules.”

No doubt, above is a very sound and the correct exposition of the law and this would have disposed of the matter and the ex-parte order made on 22/11/98 would have been set aside, but most surprisingly, the learned trial Judge made a sudden complete U-turn and acceded to the submission of the respondents counsel to the effect that the appellant’s had no locus standi to challenge the order and at page 125 of the Records observed:-

“I further hold the view that nothing was left in the applicants by way of rights or interests to support their locus standi to institute this action.”

It is very difficult to understand how the learned trial Judge came to this finding. The property sought to be removed with the aid of the police is their property. They were designated as respondents in the ex-parte application and they have well and fully deposed in the affidavit their interests in the property, that the respondent has not been properly appointed a Receiver to Union Bank of Nig. Plc. and that his appointment is being questioned and challenged in the action filed by the appellants and that the properties sought to be removed did not constitute part of the mortgaged asset. It is in the face of this weighty affidavit evidence that the learned trial Judge observed that the appellants have no locus standi to take steps to challenge an order made concerning their property. I must observe that the appellants have locus standi to challenge the order made in their absence which denied them an opportunity of challenging the respondent’s authority, the validity of his appointment and the legality of the proceedings commenced by him which adversely affects their interests. See ‘K’ Line Inc. v. KR Int. Nig. Ltd. (1993) 5 NWLR (Pt.292) 159; Nnadi v. Okoro (1998) 1 NWLR (Pt.535) 573; Chief Gani Fawehinmi v. Akilu & Anor. (1987) 4 NWLR (Pt.67) 797; Bank of Baroda v. Iyalabani Ltd. (1998) 2 NWLR (Pt.539) 600.

It is pertinent to observe that so many notes of warning had been sounded and a lot of disciplinary actions have been taken against the indiscriminate issuance of ex-parte orders by some Judges and it appears that this message has still not reached some quarters and the warning will still be sounded to all and sundry till sanity prevails in the whole set up. The order made is not only unconstitutional and unlawful but unknown in our jurisprudence. The appellants were denied the right of fair hearing which is enshrined in section 33(1) of 1979 Constitution and now section 36(1) of the 1999 Constitution.

No doubt, the learned trial Judge has a duty to set aside his order as it is null and void and this he has failed to do.

As I had earlier observed, it is wrong to commence any suit at the High Court by a motion ex-parte and the originating process in this matter is not founded upon any suit whether subsisting, contemplated or concluded. It is incompetent and the trial court lacked jurisdiction to entertain it and the order therefor cannot be allowed to stand.

I am of the view that there is merit in the appeal and that it ought to be allowed. In the final result, I hereby allow the appeal and set aside the ex-parte Order made by Bassey J. on 12/9/96 and affirmed on 12/2/98. There will be N4,000.00 costs in favour of the appellants.

EDOZIE, J.C.A.: I was privileged to have read before now, the draft of the lead judgment just delivered by my learned brother Opene, JCA, and I agree with his reasoning and conclusion in allowing the appeal.

The appeal once more brings into fore the indiscriminate abuse of ex-parte orders by the courts. By an ex-parte order made by the court below on 12/9/96 at the instance of the respondent on record as applicant, the court below ordered the commissioner of police Akwa Ibom State to provide police security to enable the respondent (as Receiver to the Union Bank) to move the mortgaged assets of the appellants from their site at KM 3 Oron Road, Eket to the Union Bank’s headquarters in Port Harcourt. Upon the appellants subsequently becoming aware of the said ex-parte order they applied unsuccessfully to the court below for its discharge hence the present appeal. The solitary issue raised for determination in this appeal is whether the court below was right to have refused to set aside the exparte order.

To begin with since there was no matter pending in the court below between the parties, the ex-parte application as an originating process upon which the exparte order was predicated was incompetent. This is so because by Order 1 rule 1 of the Akwa Ibom State High Court (Civil Procedure) Rules, civil proceedings may be begun by a writ, originating summons, originating motion or petition. Motions ex-parte are only relevant in interlocutory applications under Order 8 of the said Rules.

“Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void because the court has no jurisdiction to entertain it. See Obimonure v. Erinosho (1966) 1 All NLR 250.”

There is no doubt that the respondent by purporting to commence his action by motion ex-parte without service on the appellants had not properly invoked the jurisdiction of the court below and as a result the action was still-born.

The court below appreciated the legal position when in its ruling on the appellants’ application to discharge the ex-parte order, it held:

“In this case, the respondent brought an ex-parte application and obtained the order without the knowledge of the applicants or their being given the opportunity to be heard.

There would also be a contravention of the principles of fair hearing as enshrined in of the 1979 constitution ”

Regrettably, the below notwithstanding the correct exposition of the law declined to set aside the ex-parte order on the erroneous view that the appellants lacked locus standi when from the copious affidavit evidence in support of their application to discharge the order their standing is not in doubt.

For the above reasons and the more detailed reasons set out in the lead judgment, I also, allow the appeal with all the consequential orders made in the lead judgment.

EKPE, J.C.A.: The respondent in this appeal had as applicant on the 9th day of September, 1996, filed an Originating Motion ex-parte dated the 7th day of September, 1996 at the High Court, Uyo in Akwa Ibom State of Nigeria in Suit No.HU/MSC.142/96. The parties to the motion ex-parte as expressed on the Motion paper are:

“Emmanuel Umoren – applicant

(Suing as Receiver

to Union Bank Plc)

AND

Uwa Printers (Nig) Ltd.- respondents.”
Sunday Joseph Udoh

The originating motion ex-parte prayed for the following Orders:

(a) An Order directing the Commissioner of Police, Akwa Ibom State to provide police protection to enable the applicant to move the mortgaged assets of the respondents’ company from site at KM 3 Oron Road, Eket to the Union Bank Regional office at Port Harcourt, Rivers State.

(b) And for any further Order(s) as this Honourable Court may deem fit to make in the circumstances.”

The originating motion ex-parte was supported by an affidavit of 13 paragraphs sworn to by respondent. The mortgaged assets sought to be moved to the Port Harcourt office of the Union Bank (Nig) Plc under the protection of the Commissioner of Police belong to the 1st appellant who had by a Deed of Debenture mortgaged the assets to the Union Bank (Nig) Plc. The 2nd appellant is the Managing Director of the 1st appellant.

The reason behind the motion ex-parte for the removal of the mortgaged assets from the place of their location was deposed to in paragraphs 7, 8 and 10 of the supporting affidavit as follows:

“7. That at the meeting with the D.P.O. Eket, Mr. Udoh stated that the Bank only has legal mortgaged, but he has the receipt of the secured movable assets, that he was making arrangements to dispose of them and thereafter pay two million Naira (N2m) to the Bank which is far below the over N11m (eleven million Naira) owed, and whereupon he is prevented from disposing them, he will cannibalise the assets so that they will be useless to the Bank. This, I reported to my principal who mandated me to move the machines from site to prevent the intended act of Mr. Udoh.

That if Mr. Udoh is allowed to carry on with his sale of this machine, the Bank would lose forever the assets of its debentures.
That I know that if this order is refused, he shall fraudulently sell the machines to Ezeagu Printers, Minna, Niger State, with whom I was informed he has negotiated to dispose the mortgaged movable assets to.”

In view of the seriousness of the allegations against the appellants in the above paragraphs of the affidavit, the learned trial Judge would have ordered the respondent to put the appellants on notice of the motion to enable the appellants react to the motion and the affidavit, but he did not do so. Rather, he immediately granted the prayers in the motion ex-parte and left the appellants to their fate without any hearing.

The appellants upon learning of the motion ex-parte and the order of the trial Judge, brought a motion on notice before the learned trial Judge to set aside the order obtained upon the motion ex-parte and to strike out the suit No. HU/MSC.142/96 as an abuse of process of the court. After hearing argument on the motion on notice to set aside the order, the learned trial Judge dismissed the same, holding that there was no infraction of the provisions of section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria. This appeal ensued as a result of the dismissal of the motion on notice.

Having given a resume of the facts from which this appeal emanated, the question is whether the originating motion ex-parte was a proper procedure or mode for initiating the suit. I think not. Under Order 1 rule 1 of the Akwa Ibom State High Court (Civil Procedure) Rules 1989 there are four modes of beginning civil proceedings in the High Court namely, by writ of summons, originating summons, originating motion and petition. There is nothing in Order 1 Rule 1 like originating motion ex-parte which is the mode by which the respondent commenced the proceedings in the instant case.

It was wrong for the trial court in the instant case to grant the ex-parte order based on the ex-parte motion on a matter without a substantive suit before the court. Such an Order, definitely will be hanging in the air or skies i.e. in nubibus, as it does not relate to any suit already before the court. It is likened to granting an ex-parte Order of interim injunction without filing a substantive action or suit.

In my view the procedure by the originating motion ex-parte is incompetent and robs the court of jurisdiction, it is fundamentally defective. The proceedings are a nullity, however well conducted and decided. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

Another question is whether the appellants were not as of right entitled to be put on notice. The averments in the affidavit in support of the originating motion ex-parte impinge upon the rights of the appellants and it is with due respect imprudent and wrong in law for the trial Judge to grant the order ex-parte without giving them a hearing, more so when the order sought and granted in the motion ex-parte is in the nature and has the effect of a final order made without hearing the appellants who are the respondents in the said ex-parte motion. The appellants were entitled to be served with the processes of the motion so that they could be heard.

It is the law that failure to serve process or give notice of proceedings to an opposing party in a case where service of process is required (except in proper exparte proceedings, and this is not one of them) is a fundamental vice and renders such proceedings void because the court has no jurisdiction to entertain them. See Haruna v. Ladeinde (1987) 4 NWLR (Pt.67) 941; Obimonure v. Erinosho (1966) 1 All NLR 250; Scott-Emuakpor v. Ukavbe (1975) 12 SC 41; Craig v. Kanssen (1943) KB 256. The fact that the appellants were not heard before the ex-parte order was slammed against them was travesty of the most elementary rule of natural justice of audi alteram partem which is enshrined in section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria. See Eguamwense v. Amaghizemwen(1986) 5 NWLR (pt.41) 282; Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419.

Finally, the refusal of the learned trial Judge to discharge to set aside the exparte order which under Order 8 rule 11 of the Akwa Ibom State High Court (Civil Procedure) Rules 1989, he has discretion to discharge to set aside is a wrongful exercise of discretion having regard to the facts and circumstances of this case. The discretion was not exercised judicially and judiciously.

For the above reasons and the fuller reasons in the leading judgment of my learned brother Opene, JCA., I too allow the appeal and abide by the consequential orders made in the leading Judgment.

Appeal allowed.

Appearances