OBEYA v. B.O.I. LTD
(2020)LCN/15358(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, August 14, 2020
CA/A/1166/2019
RATIO
JURISDICTION OF COURT: JURISDICTION AS A FUNDAMENTAL IN ANY ADJUDICATION
Jurisdiction is a Fundamental Element in any adjudication. The Court determining a matter must ensure it has jurisdiction, failing which whatever step taken will amount to a nullity, see the case of IDISI V ECODRIL (NIG) LTD & ORS (2016) LPELR- 40438 (SC) which held:
“In all, the point must be noted here that jurisdiction is of paramount importance in the process of adjudication. As such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing, Attorney General for Trinidad and Tobago v Erichie (1893) Ac 518, 522; Timitimi v Amabebe 14 WACA 374; Mustapha v Governor of Lagos State [1987] 2 NWLR (pt 58) 539; Utih v Onoyivwe [1991] 1 NWLR (pt 166) 206. Put differently, jurisdiction is the life-wire of any proceeding in Court and everything done in its absence is simply, a nullity, Jumang Shelim and Anor v. Fwendim Gobang [2009] 7 SCM 165; [2009] 12 NWLR (pt 1156) 435. That is the fate of the Ruling of the trial Court [Akoro, J] as, rightly, found by the lower Court.” Per NWEZE, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Emmanuel Akomaye Agim Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
EBENEZAR OBEYA (Practicing Under The Name EBENEZAR OBEYA & CO) APPELANT(S)
And
BANK OF INDUSTRY LIMITED RESPONDENT(S)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the High Court of the Federal Capital Territory sitting in Abuja delivered on the 16th November, 2017 by HON. JUSTICE S. B. BELGORE wherein the trial Judge upheld the Preliminary Objection raised by the Respondent challenging service of the Writ of Summons issued under the Undefended List procedure on a branch office of the Respondent for being improper. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on the 15th December, 2017 donating 4 Grounds of Appeal.
The facts leading to this Appeal are amenable to brief summary. The Appellant took out a Wit of Summons under the undefended list against the Respondent claiming various sums of money being legal fees and interest upon the principal sum. Service of the Originating Processes was effected on an office of the Respondent in Abuja and not in the Head Office or Registered office. Piqued by the service, the Respondent raised a Preliminary Objection and prayed for the following reliefs:
a. An order of this honourable Court striking out the suit on the ground that the writ of summons is incompetent same having not been served by the Plaintiff/Respondent at the registered Corporate Office and Headquarters of the Defendant/Applicant at No. 23 Marina, Lagos State of Nigeria.
b. An order of this honourable Court has no jurisdiction to entertain the subject of the suit against the defendant/Applicant.
c. An order for such order or orders as the honourable Court may deem fit to make in the circumstance of this case.
The Preliminary Objection was heard and upheld thus this Appeal.
Appellants Brief settled by CHUCKS UDO-KALU, ESQ. is dated 14th January 2020 filed on the same day but deemed on the 9/3/2020. It distilled 3 issues for determination as follows:
i. Whether the service of the originating processes on the Respondent at its “Corporate Headquarters, Abuja” was not proper service as provided in the High Court Rules of the FCT.
ii. Whether the trial High Court of the Federal Capital Territory is bereft of jurisdiction to entertain an action for recovery of professional fees against the Respondent.
iii. Whether the Court of Appeal can grant the reliefs sought before the trial Court as no Notice of intention to defend was filed thereat.
The Respondent’s Brief settled by F. A. BONIRE, ESQ is dated 25th March, 2020 filed on the 3rd day of June, 2020 and deemed on the 22/6/2020. It formulated 2 issues for determination as follows:
a. Whether in view of the fact that the originating processes which was served by the Appellant on the Respondent at its branch office in Abuja instead of its Headquarters in Lagos and the fact that the Respondent being an agency of the Federal Government of Nigeria, it was proper for the Honourable Lower Court in the circumstances to strike out the suit on the basis of lack of jurisdiction to entertain same against the Respondent.
b. Whether in the instant case it will be proper for this Honourable Court to exercise its original jurisdiction in favour of the Appellant in respect of his claim which the Honourable Lower Court did not hear on the basis of lack of jurisdiction.
After a careful perusal of the Notice of Appeal, the Record of Appeal and the briefs of Counsel on both sides, the Court shall adopt issues donated by the Appellant being the initiator of the Appeal and one who has expressed dissatisfaction with the ruling of the Court below. Doing so will effectively address all the areas of complaint. I shall resolve the issues seamlessly for expedience and to avoid repetition.
APPELLANT’S SUBMISSIONS:
ISSUE ONE
Whether service of the originating processes on the Respondent at its ‘Corporate Headquarters, was not proper service as provided in High Court Rules of the FCT.
The Appellant in arguing this issue contended that service on the Respondent of the Originating Processes, in this case, at its Corporate Headquarters in Abuja within the Jurisdiction of the trial Court was good and proper service. He cited ORDER 11 RULE 8 OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY (Civil Procedure) Rules, 2004.
The Learned Counsel argued that the enactment under which the Respondent (Bank of Industry Limited) was registered is the Companies and Allied Matters Act, Cap C20 Laws of Federation of Nigeria, 2004 (CAMA) and Section 78 of CAMA provides-
“A Court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at, or sending it by post to, the registered office or head office of the company.”
That reading Section 78 of CAMA and Order 11 Rule 8 of the High Court of the FCT (Civil Procedure) Rules, 2004 where the document to be served is a “Court Process” service is governed by the Rules of Court and any other document may be sent to the Head office or registered office of the company, relied on LEADERSHIP NEWSPAPERS GROUP LTD V MANTU (2017) 2 NWLR (Pt.1548) 15 @ 49-52.
Furthermore, the Appellant’s Counsel submitted that the trial Court failed to consider the acknowledgement stamps on EXHIBIT A-D Annexed to the Affidavit in support of the Writ of Summons wherein the Respondent designated and held out its Abuja office as its “Corporate Headquarters”. The Respondent never denied the said designation or acknowledgement and cannot be seen to run away from the fact. He referred the Court to ETHIOPIAN AIRLINES V ONU (2005) 11 NWLR (Pt. 936) 214; FIRST BANK OF NIGERIA PLC V ONUKWUGHA (2005) 16 NWLR (Pt.950) 120.
The Appellant argues further that the trial Judge failed to examine the writ of Summons and went on to observe at page 7 of his ruling that “the question now is, how will it be possible for a document addressed to Lagos office to be served in Abuja and expect the Court to hold that such service is good and effective one. It is not possible.” The Appellant argued that the Address for service on the writ is: The Defendant, Bank of Industry Ltd, Corporate Office, Bank of Industry House, Plot 256, Zone A0, Off Herbert Macaulay Way, Behind Unity Bank Towers, Central Business District, Abuja. That Lagos was not mentioned as erroneously stated by the trial Judge. Appellant argued that a letter of instruction emanated from a particular office is not conclusive that it is the Corporate or Head Office of the Corporation. In the absence of a denial of the acknowledgements as in EXHIBIT A, B, C and D of the Plaintiff’s Affidavit, the Defendant cannot be allowed to walk back from such.
Lastly, the Appellant submitted that having served the Respondent at Bank of Industry Ltd, Corporate Office, Bank of Industry House, Plot 256, Zone A0, Off Herbert Macaulay Way, Behind Unity Bank Towers, Central Business District, Abuja, its Corporate Headquarters (office) the Appellant has complied sufficiently with the requirements of Order 11 Rule 8 of the High Court of the FCT (Civil Procedure) Rules, 2004 and the CAMA. He urge this Court to resolve this issue in favour of the Appellant and against the Respondent.
ISSUE TWO
Whether the trial High Court of the Federal Capital Territory is bereft of jurisdiction to entertain an action for recovery of professional fees against the Respondent.
On the second issue, the Appellant submitted that after declining jurisdiction on the basis of alleged “non-service”, the learned trial judge went on to delve into the merits of the case. In the ruling, subject matter of this Appeal, the trial Judge held:
By a recent decision of the Apex Court in the case of CBN Vs AITE OKOJIE (2015) LPELR 24740 (SC) where it was held that the Federal High Court has exclusive jurisdiction to determine any civil causes and matters where a party is an agency of the Federal Government or Federal Government itself no matter the issues involved.
The Appellant submitted further that the Supreme Court made no such decision in CBN V AITE OKOJIE (supra) instead the Apex Court was emphatic on Section 251(1) of the Constitution of the Federal Republic of Nigeria on exclusive jurisdiction of the Federal High Court. The claim of the Appellant as evident on the face of the Writ is for a liquidated money demand. A recovery of a simple debt does not come under the list of causes under Section 251(1) of the Constitution. He relied on the following cases AGBULE V WARRI PETROCHEMICAL CO LTD (2013) 6 NWLR (Pt 1350) 318 @ 361-362; F.C.E OYO V AKINYEMI (2008) 15 NWLR (Pt 1109) 21 @ 30; OIL AND GAS EXPORT FREE ZONE AUTHORITY V DR. T.C OSANAKPO (2019) 6 NWLR (Pt 1668) 224; RAHMAN BROTHERS LTD V N.P.A (20190 6 NWLR (Pt 1667) 126 & ODUAH V OKADIGBO (2019) 3 NWLR (Pt 1660) 433.
The Appellant submitted that this is a case of simple contract which takes the case out of the Federal High Court and places it in the High Court of the FCT. They urge the Court to answer this issue in the negative and resolve same against the Respondent and in favour of the Appellant.
ISSUE THREE
Whether the Court of Appeal can grant the reliefs sought before the trial Court as no Notice of intention to Defend was filed thereat.
On issue 3 the learned Counsel submitted that by Order 21 Rule 3(1) of the High Court of the FCT (Civil Procedure) Rules, 2004, this being a matter placed on the undefended list, the Respondent had an obligation to file a defence five (5) days before the date fixed for hearing. However, in defiance of the Rules of Court, the Respondent’s Notice of Preliminary Objection was filed 2 days before the date fixed for hearing the matter. No leave of Court was sought and obtained to regularize the documents. Most importantly, the Respondent did not file any Notice of Intention to defend as required by Order 21 of the High Court of the FCT (Civil Procedure) Rules 2004.
The learned Counsel argued that the Respondent having elected not to file any defence, clearly admitted all the material facts deposed to by the Appellant in support of the Undefended List. Referred to HON (MRS) DORATHY MATO V HON. IORWASA HERMAN HEMBER & 2 ORS (2018) 5 NWLR (Pt. 1612) 258 @ 289 and further submitted that the learned trial Judge ought not to have delved into the merits of the case after holding that the Respondent was not properly served even though it was represented in Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Lastly, the Learned Counsel submitted that having demonstrated that the reliefs sought are within the jurisdiction of the trial Court and in the absence of any defence to the claim, he urged the Court to invoke its powers under Section 15 of the Court of Appeal Act, 2004 and grant all the reliefs sought before the Court below. See METUH V FRN (2017) 11 NWLR (Pt. 1575) 157; GOV. EKITI STATE V OLUBUNMI (2017) 3 NWLR (Pt 1551) 1 at 39; NWOYE V F.A.A.N (2019) 5 NWLR (Pt. 1665) 193 @ 213.
Learned Counsel further submitted that Court should be persuaded to enter Judgment for the Appellant in terms of the writ and Order 7(1) of the Legal Practitioners (Remuneration for Legal Documentation and other Land Matters) Act Cap 11 Laws of the Federation of Nigeria, 2004.
He urged the Court to allow this Appeal, set aside the orders of the trial Court and enter Judgment for the plaintiff in line with Writ of Summons and that to decide otherwise would amount to defeating the primary purpose of an action under the undefended list, relied on AMEDE V UBA PLC (2018) 6 NWLR (Pt. 1614) 32.
RESPONDENT’S SUBMISSION
ISSUE ONE
Whether in view of the fact that the originating processes which was served by the Appellant on the Respondent at its branch office in Abuja instead of its Headquarters in Lagos and the fact that the Respondent being an agency of the Federal Government of Nigeria, it was proper for the Honourable Lower Court in the circumstance to strike out the suit on the basis of lack of jurisdiction to entertain same against the Respondent.
The Respondent under issue one of its Brief of Argument submitted that in the circumstances of this case, it was proper for the Court to strike out the suit of the Appellant on the basis of lack of jurisdiction to entertain same. The issue of jurisdiction is very fundamental; it is the threshold issue and a life line for continuing any proceedings. Cited UTIH & ORS V ONOYIVWE & ORS (1991) 1 NWLR (Pt 166) 166 or 1991, 1 SCNJ 25;COTECNA INT’L LTD V I.M.B LTD (2006) 9 NWLR (Pt 985) 275 at 297; S.P.D.C.N LTD V GOODLUCK (2008) 14 NWLR (Pt 1107) 294 at 30 AND INAKOJU V ADELEKE (2007) 4 NWLR (Pt 1025) PG 423 at 588.
That in view of the fundamental nature of jurisdiction, same can be raised by the parties or by the Court suo motu at any time in the proceedings even for the first time at the Appellant Court, referred to OLOBA V AKEREJA (1988) LPELR-2583 (SC) and MADUKOLU V NKEMDILIM (1962) 2 QLL NLR 581 at 589.
The Respondent further submitted that in challenging jurisdiction of the Lower Court to hear the suit filed, the Respondent filed a Preliminary Objection dated 3rd March, 2017 and the 8 paragraphs affidavit filed in support of the Preliminary Objection deposed to by Mrs. Wali Sadiya in which she copiously stated that the Appellant served the Originating Processes on the Respondent at the Branch Office in Abuja instead of effecting service of the Originating Processes on the Respondent at the Registered, Corporate Office and Headquarters at No. 23 Marina Lagos State and that this fact was never rebutted by the Appellant in his Counter Affidavit. The Respondent argued that under our legal system it has been held that proper service of Court processes is a condition precedent as it touches on jurisdiction which obviously gives fetus to the competence of the lower Court to entertain, hear and adjudicate on the matter, citing OKAFOR V IGBO (1991) 8 NWLR (Pt. 210) 476 at 484.
On the mode of service that will be proper in case of a Company, the Respondent referred to the case of EMPERION WEST AFRICA LTD V AFLON LTD & ANOR (2014) LPELR-22975 (CA) where it was held that “a service on a Company, as this is provided, must be at the registered office of the company and it is bad and ineffective if it is done at the branch office of the company. The procedure is by giving the writ to any director, trustee, secretary or other principle officer at the registered office of the company or by leaving the process at its registered office.”
On the position of Section 78 of Companies And Allied Matters Act (CAMA) and Order 11 Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 relied upon by the Appellant which relate to the procedure for effecting service of Court process on a company, the Respondent argued that it has been judicially pronounced that the residence of a corporation is the place where the Board of Directors function or the place of business of the Managing Director or other Principal Officers and not the branch office or liaison office. The learned Counsel submitted that the Originating Processes filed and served by the Appellant on the Respondent at the branch office of the Respondent in Abuja was improper, ineffective, bad in law and the lower Court was right to have declined jurisdiction to entertain the suit. They humbly urge this Court to so hold by dismissing this Appeal and upholding the decision of the lower Court, relied on MARK & ANOR V EKE (2004) 1 SC (PT 11) 1.
The learned Counsel submitted further that the issue of proper service of Originating Court Process is very fundamental. Once there is no proper of same, the whole or entire proceedings will be rendered a nullity no matter how beautifully or excellently conducted, referred to NATIONAL ELECTRIC POWER AUTHORITY V BARRISTER DAN URU AKPA (2010) LPELR-4578 (CA).
The Respondent submitted that the service of the Originating Processes by the Appellant at the branch office in Abuja contravenes the provision of Section 78 CAMA, 2004; Order 11 Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004and other judicial Authorities on mode of effecting service of Originating Court Processes on a Corporate Body like the Respondent.
That the decision in LEADERSHIP NEWSPAPERS GROUP LTD V MANTU (2017) 2 NWLR (Pt 1548) 15 relied upon by the Appellant is not relevant to the facts in this case, it was not in respect of the mode of Service of Court processes on a company as provided by High Court of the Federal Capital Territory (Civil Procedure) Rules 2004. That the Respondent is not prepared to waive its statutory right to proper service of Originating Summons and the authority is inappropriate in the circumstance of this case and the Appellant has not given any reason while this Court should depart from the previous decision given in respect of the interpretation of Order 11 Rule 8 of the High Court of the FCT (Civil Procedure) Rules, 2004 and the case of KARUM LIMITED V INTERNATIONAL TRUST BANK PLC (supra) is apt and relevant in this case, the Court should not depart from its decision. It prayed the Court to so hold by dismissing this Appeal.
The Respondent went on to submit that since the creation of the Respondent, its Headquarters has always been in Lagos, it has always been centrally controlled from Lagos, the office of the Managing Director, Board of Directors and other Principal Officers have always been in Lagos. Besides the letter of instruction and other written communication between the Respondent and the Appellant in respect of the transaction that gave rise to this suit (at page 12-41 of the Record) all emanated, borne and directed to Lagos address which is No. 23, MARINA, LAGOS by the Appellant to the Respondent and are delivered to the Respondent at the Headquarters in Lagos. They humbly submitted that service of the Originating Processes on the Respondent at the Branch Office in Abuja by the Appellant 3 days before the date fixed for hearing of the undefended list procedure when the Appellant knew that the central place of business of the Respondent is in Lagos was bad, improper, an attempt to ambush the Respondent and the Lower Court was right to have declined jurisdiction to hear this suit. They prayed the Court to so hold by dismissing this Appeal with substantial cost against the Appellant.
The Respondent further argued that the Appellant initiated the suit against the Respondent was brought under the undefended list procedure knowing that the Respondent is an institution owned and controlled by the Federal Government of Nigeria, therefore only the Federal High Court can competently assume jurisdiction in matters relating to the performance of its statutory functions, referred to SECTION 251(1) (D) OF THE CONSTITUTION OF NIGERIA,1999 (as amended); CENTRAL BANK OF NIGERIA V AUTO IMPORT EXPORT (2013) 2 NWLR (Pt 1337) 80 at 133-13; OLORUNTOBA-OJU V DOPAMU (2008) LPELR-2595 SC, NEPA V EDEGBERO (2002) NWLR (Pt 798) 79 AND OLUTOLA V UNILORIN (2004) 18 NWLR (Pt 905) 416.
On what is the determining factor for a Court to assume jurisdiction over a matter, the Respondent cited the case of SUNDAY GBAGBARIGHA V ADIKUMO TORUEMI & ANOR (2012) LPELR-15535 SC; NIGERIA INTERCONTINENTAL MERCHANT BANK LTD V UNION BANK OF NIGERIA LTD & ORS (2004) 12 NWLR (Pt 888) 599; NIGERIA ARAB BANK LTD V BARRI ENGINEERING NIGERIA LTD (1995) NWLR (Pt 413) 257; TABIOWO V DISU (2008) 7 NWLR (Pt. 1007) 533 at 549.
Furthermore, the Respondent submitted that this Court has the powers to examine the record before it with a view of making use of the information therein. That principle was reiterated in the case of WEST AFRICAN PROVINCIAL CO.LTD V NIG.TOBACCO CO LTD (1987) 2 NWLR (Pt. 57). In line with the above and on the strength of the provision of Section 251(1)(d) of the 1999 Constitution and the judicial interpretation inCENTRAL BANK OF NIGERIA V AUTO IMPORT EXPORT (SUPRA), the Respondent urged the Court to uphold the decision of the lower Court delivered on the 16th November, 2017 and dismiss this Appeal with substantial cost in following CBN V AITE OKOJIE (2015) LPELR-24740 (SC).
Respondent’s Counsel submitted that though the Appellant argued that the matter is a simple contract i.e claim of professional fee which is not covered by the items specified in Section 251 of the 1999 Constitution, therefore the lower Court ought to assume jurisdiction. The Respondent contended that the argument of the Appellant is a pure lie, mischievous and a complete misinterpretation of the law and that it is because the suit did not arise from the core and or administrative function of the Respondent which is to provide funds and support the industrial sector of the economy. He prayed the Court discountenance the submission.
ISSUE TWO
Whether in the instant case it will be proper for this Honourable Court to exercise its original jurisdiction in favour of the Appellant in respect of his claim which the Honourable Lower Court did not hear on the basis of lack of jurisdiction.
The Respondent under issue two of its Brief of Argument submitted that this Court cannot exercise its jurisdiction to grant the claim of the Appellant. In support of their submission the Respondent adopted its argument on issue one which borders on lack of jurisdiction of the Court below to entertain the suit on the basis of improper service of the originating processes on the Respondent and clear provision of Section 251 of the Constitution of the FRN 1999 which confers exclusive jurisdiction on the Federal High Court in matters affecting the Federal Government of Nigeria and its agencies.
The Respondent submitted further that the call by the Appellant on the Court to exercise its original jurisdiction in respect of this case when it lacks Jurisdiction cannot stand and it has been held consistently that issue of jurisdiction is so fundamental to the extent that it can be raised at any stage of the proceedings even for the first time on Appeal, referred to POPOOLA ELABANJO & ANOR V CHIEF GANIAT DAWODU (2006) 15 NWLR (Pt 1001) 76 SC; SOCIO-POLITICAL RESEARCH DEVELOPMENT V MINISTRY OF FCT & ORS (2018) LPELR-45708 (SC); PDP & ORS V EZEONWUKA & ANOR (2017) LPELR-42563(SC); ABDULSALAM & ANOR V SALAWU (2002) LPELR-30 (SC) and GALADIMA V TAMBAI (2000) 11 NWLR (PT 677) 1.
Furthermore, on the conditions on which an Appellant Court exercises its jurisdiction, were stated in the case of PETER OBI V INDEPENDENT ELECTORAL COMMISSION & ORS (2007) 11 NWLR (PT 1046) 560 at 639-40 and In view of the above cited case the Respondent submitted that the Appellant did not meet any of the conditions provided for this Court to accede to the prayers and claims of the Appellant.
Finally, the Respondent urged the Court to dismiss this appeal with substantial cost and uphold the decision of the lower Court delivered on the 16th November, 2017.
RESOLUTION
The fundamental question in this Appeal is whether the Court below had jurisdiction in view of the manner the Originating Processes were served on the Respondent. The trial Court upon consideration of the objection taken by the Respondent herein declined jurisdiction on his findings that service of Originating Process was defective. Jurisdiction is a Fundamental Element in any adjudication. The Court determining a matter must ensure it has jurisdiction, failing which whatever step taken will amount to a nullity, see the case of IDISI V ECODRIL (NIG) LTD & ORS (2016) LPELR- 40438 (SC) which held:
“In all, the point must be noted here that jurisdiction is of paramount importance in the process of adjudication. As such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing, Attorney General for Trinidad and Tobago v Erichie (1893) Ac 518, 522; Timitimi v Amabebe 14 WACA 374; Mustapha v Governor of Lagos State [1987] 2 NWLR (pt 58) 539; Utih v Onoyivwe [1991] 1 NWLR (pt 166) 206. Put differently, jurisdiction is the life-wire of any proceeding in Court and everything done in its absence is simply, a nullity, Jumang Shelim and Anor v. Fwendim Gobang [2009] 7 SCM 165; [2009] 12 NWLR (pt 1156) 435. That is the fate of the Ruling of the trial Court [Akoro, J] as, rightly, found by the lower Court.” Per NWEZE, J.S.C.
Furthermore, the Courts have settled factors that determine a Court’s jurisdiction, see the case of MADUKOLU V NKEMDILIM (1962) ALL NLR 581 which listed them thus:
1. “It is properly constituted as regards numbers and qualification of the members of branch and no member is disqualified for one reason or another;
2. The Subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”
The relevant aspect here is twin fold, one is that the service of initiating processes on the Respondent was not according to law and also that the subject matter is within the trial Court’s jurisdiction. It has been held that proper service of Originating Processes has a bearing on jurisdiction, it is a condition precedent; See EMEKA V OKOROAFOR & ORS (2017) LPELR-41738 (SC) wherein the apex Court held:
“The settled position of the law was clearly stated by His Lordship, Musdapher, JSC (as he then was) in Kida Vs Ogunmola (2006) 6 SCNJ 165 @ 174 thus: “…service of process on a party to an action, particularly an originating process, is crucial and fundamental. See Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554; S.G.B.N v. Adewunmi (2003) 10 NWLR (Pt. 829) 526; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of the Court’s jurisdiction was not fulfilled.” To underscore the importance of service, His Lordship continued at page 175 lines 5 – 7 (supra); “Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of counsel since where there is no service, there is no valid trial.” The principle was re-stated in the recent decision of this Court in; Ihedioha Vs Okorocha (2016) 1 NWLR (Pt.1492) 148 @ 179 D-F by Okoro, JSC: “… I agree that it is not every non-compliance with the Rules of Court that should vitiate the proceedings. However, where the non-compliance robs the Court of its jurisdiction, the processes and the proceedings must be set aside. I must emphasize that service of process is an important aspect of the judicial process. Failure to serve a named party with Court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)… Any beach of this principle (of fair hearing) renders the proceedings a nullity. See Chime vs. Onyia (2009) All FWLR (Pt. 480) 673 @ 730-731 Paras H-B; (2009) 2 NWLR (Pt. 1124) 1.” See also: Skenconsult (Nig) Ltd. Vs Ukey (1981) 1 SC 6: Obimonure Vs Erinosho (1966) 1 ALL NLR 250: Craig Vs Kanseen (1943) K.B 256; National Bank (Nig) Ltd. vs. Guthrie (Nig) Ltd. (1993) 3 NWLR (Pt.284) 643. It is therefore settled beyond dispute that the service of an originating process on a party to an action is a condition precedent to the exercise of the Court’s jurisdiction, as any party against whom a suit or process is filed has the right to know that a suit had been instituted against him, what the claims are and an opportunity to defend himself if he has a defence thereto.” Per KEKERE-EKUN, J.S.C.
The relevant issue is how service should be effected on the Respondent which is a bank, a company registered under the Company and Allied Matters Act, and Section 78 of CAMA regulates service of documents on a company registered under the Act. It says:
“A Court process shall be served on a company in the manner provided by the rules of Court and any other document may be served on a company by leaving at, or sending it by post to, the registered office or head office of the company.”
It is clear from above provision that a Court process for service on the company should be served according the rules of the particular Court. It is common knowledge that all Courts have their individual Rules of procedure and except where the provisions are exactly the same, the effects may also be different. In considering whether service on a company was proper, the specific rules of that Court must be considered. In this appeal, the Rules of the FCT High Court is relevant. Order 11 Rule 8 of the FCT High Court Rules, 2004 states as follows:
“When a suit is against a corporate body authorized to sue and be sued in its name or in the name of an officer or trustee, the document may be served, subject to the enactment establishing that corporation or company or under which it is registered, as the case may be, by giving the writ or other document to any director, secretary or other principal officer, or by leaving it at the Corporate Office.”
A community reading of Section 78 CAMA and Order 11 Rule 8 produces the following:
a. Section 78 envisages two types of documents, Court processes and other documents;
b. Rules of Court govern the Service of Court processes;
c. Any other document may be sent to the registered or Corporate Office.
The Act under which the Respondent was incorporated specifically gave the rules of Court preeminence over its own provision. Two options are given in the said provision, these are:
i. By giving the writ or documents to any Director, Secretary or other Principal Officer; or
ii. By leaving it at the corporate office.
See NBC PLC V UBANI (2013) LPELR-21902 (SC) which held thus:
“Section 78 of the Companies and Allied Matters Act makes provisions for service of two types of documents. The relevant one in the instant case is the provision for service of Court processes where the Section provides – “A Court process shall be served on a Company in the manner provided by the rules of Court.” The relevant Rules of Court in this respect are contained in Order 12 Rule 8 of the Cross-River State High Court (Civil Procedure) Rules, 1987 which provides mode of service of Court process on a Company by “giving the same to any Director, Secretary or other principal officer or by leaving it at the office of the Corporation or Company.”
The same is how the apex Court held in the case of MARK & ANOR V EKE(2004) LPELR-1841(SC) thusly:
“The mode of service on a limited liability company under the relevant rules of Court is different from service of process on a natural person such as the 1st appellant. The Companies and Allied Matters Act by Section 78 makes a provision as how to serve documents generally on any company registered under it. By this, a Court process is served on a company in the manner provided by the rules of Court. A service on a company, as this provided, must be at the registered office of the company and it is therefore bad and ineffective if it is done at a branch office of the company. See Watkins v. Scottish Imperial Insurance Co. (1889) 23 QBD 285.
The procedure is by giving the writ to any director, trustee, secretary or other principal officer at the registered office of the company or by leaving the same at its office…” Per MUSDAPHER, J.S.C.
The rules did not use the word registered office but Corporate Office of a company would naturally suggest where group of officers steering the Company is located, the apex Court in the case of KRAUS THOMPSON ORGANIZATION LTD V UNIVERSITY OF CALABAR (2004) LPELR-1715 (SC) held thusly:
“It has been judicially pronounced that the residence of a corporation is the place of its central management and control. This is normally the place where the Board of Directors functions or the place of business of the managing director or that of the parent company and not a branch office or liaison office. See Unit Construction Company Ltd. v. Bullock (1960) A.C. 351.”
The Appellant argues differently, it contends that the decision quoted above is not applicable and argued that the Respondent on its own designated the Abuja office as its Corporate Headquarters. The Appellant referred to the acknowledgement stamp on the processes served as evidence. Looking at the Record of Appeal particularly pages 26, 27, 29, 35 has a staff of the Respondent and indeed, it reads:
“Bank of Industry Limited,
Corporate Headquarters, Abuja,
Received by (signed)
Date 17/3/2014.”
The Respondent put forward itself by that stamp acknowledgment that its Corporate Headquarters is in Abuja, it is in writing and no oral contention can alter what the Respondent admitted in writing. The denial cannot stand as the Respondent is stopped from denying the representation it clearly made to the Appellant and to the general public. It is an admission against the Respondent which is rebuttable but not rebutted in this case. The admission that Abuja is Corporate Office was in writing and nothing was presented to dislodge that admission which is now against Respondent’s interest. There is estoppel against such conduct, see the case of A.G. BENDEL STATE V A.G. FEDERATION & ORS(1981) LPELR-695(SC) which gave a list of conduct that can bind a person as follows:
“(1) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made; (2) An act or omission resulting from the representation whether actual or by conduct by the person to whom the representation is made; (3) Detriment to such person as a consequence of the act or omission.”
The apex Court explained further how a party would ordinarily be held liable upon his own representation which was acted upon in the case of OKONKWO & ORS V KPAJIE & ORS (1992) LPELR-2483(SC) thus:
“Where a man by word or conduct willfully made a representation of a state of facts to another and thereby induced that other to believe that the state of things were as represented by that person and that other took him by his words and acted upon that representation, then that person who made the representation either by himself or his representative in interest cannot now turn around to say or behave as if the state of things were not as he represented them. He is estopped from asserting the contrary. See Section 150 of the Evidence Act; also Joe Iga & Ors. v. Ezekiel Amakiri & Ors. (1976) 11 S.C.1, 12-13.”
The Respondent cannot resile from the representation made to the Appellant that its Corporate Headquarters is the Abuja office. The Appellant did not assume but relied on that clear representation and made in writing. Furthermore, Order 11 Rule 8 used the word Corporate Office.
The trial Judge made a perverse finding that the writ was issued for service in Lagos but served in Abuja which was not the Corporate Headquarters. I have viewed the writ and the address for service is the Abuja office not Lagos. Having agreed that service on companies should be at the Corporate Office and the Respondent having put forward its Abuja Office as its Corporate Office, the service effected at the Corporate Office cannot be wrong. By so doing, the requirement of Section 78 CAMA and Order 11 Rule 8 of the FCT High Court have been satisfied. The findings of the trial Court on service are wrong and perverse. Consequently, it must be set aside. I hereby set it aside. I resolve issue in favour of the Appellant.
The second issue seeks to resolve whether the FCT High Court has jurisdiction over simple contract between a party and the Respondent (agency of the Federal Government). It is settled law that jurisdiction of a Court is determined by the plaintiff’s claim as endorsed in the Writ of Summons and Statement of Claim, see TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517; ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD V. GARBA (2002) 14 NWLR (PT. 788) 538 AT 563 AND ONUORAH V KADUNA REFINERY AND PETROCHEMICAL COMPANY (2005) 6 NWLR (PT. 921) 391.
The claim herein is for recovery of professional fees. The trial Judge after declining jurisdiction on the Ground of irregular service went on to hold that the trial Court has no jurisdiction on the Ground that the Respondent is an agency of the Federal Government and only the Federal High Court has jurisdiction. Jurisdiction as observed earlier in this Judgment is fundamental and a Court must possess it else, the entire proceedings is a nullity. The jurisdiction of the Federal High Court is circumscribed by the Constitution and statute. The exclusive jurisdiction of the Federal High Court was reiterated in the case of GARBA V MOHAMMED & ORS (2016) LPELR-40612(SC) thus:
“Section 251(1) of the 1999 Constitution provides, inter alia: “251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters…” The section goes on to set out in Sub-paragraphs (a) to (r) the matters in respect of which such exclusive jurisdiction is conferred. Sub-paragraph (1)(s) provides: “(1). (s) Such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.” Per KEKERE-EKUN, J.S.C
It is trite that subparagraph (a) –(r) of the section circumscribes the subject matter jurisdiction of the Federal High Court and obviously simple contract is not listed therein, seeIKPEKPE V WARRI REFINERY & PETROCHEMICAL CO. LTD & ANOR (2018) LPELR-44471(SC) wherein the apex Court after reviewing the jurisdiction of the Federal High Court as stipulated in Section 251(1) of the Constitution, made it categorically clear that the Federal High Court lacks jurisdiction over simple contracts, it held thus:
“Having established that the claim of the appellant at the trial Court arose from contract of employment and specific performance, is it the Federal High Court or the State High Court which has jurisdiction to entertain the matter At this stage, it is pertinent to reproduce the provisions of Section 230(1) (p) and (s) of the 1979 Constitution as amended by Decree 107 of 1993 (now Section 251(1) (p) and (s) of the 1999 Constitution (as amended). It states:- “230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters arising from: (p) the administration or the management and control of the Federal Government or any of its agencies, (s) any action or proceeding for a declaration affecting the validity of the Federal Government or any of its agencies.” There is no doubt that by the above provision i.e. Section 230(1) (s) of Decree 107 of 1993 which is in pari material with Section 251(1)(s) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies shall be brought before the Federal High Court. I have given a thorough examination of a plethora of cases of this Court on this issue and there is a consistent pronouncement that the Federal High Court does not have jurisdiction to entertain matters relating to simple contracts. It must not be forgotten that I have already held that the claim of the appellant relates to a simple contract of employment which the appellant sought specific performance. This type of claim, definitely, is not contemplated under Section 230(1)(P),(s) of the 1979 Constitution as amended by Decree 107 of 1993. See Onuorah v KRPC Ltd (2005) All FWLR (pt. 256) 1356, Ports and Cargo Handling Services Company Ltd. & Ors v. Migfo Nig Ltd. & Anor (2012) 18 NWLR (pt. 1333) 555, Adelekan v Ecu-Line NV (2006) 12 NWLR (pt 993) 33. In Integrated Timber & Plywood Products Ltd v Union Bank Nigeria (2006) 12 NWLR (pt. 995) 483, this Court held emphatically that in a simple contract (as in this case), it is the High Court and not the Federal High Court that has jurisdiction to entertain and determine it. See also Eze v Federal Republic of Nigeria (1987) LPELR – 1193 (SC) Pp 29 – 30 paragraphs G – F. In a simple contract of employment as in the instant case, there is nothing in Section 230(1) of the 1979 Constitution (as amended) which shows that the Federal High Court is conferred with exclusive jurisdiction to entertain matters arising therefrom. Rather it is the State High Court which continues to have jurisdiction to entertain issues connected therewith as brought by the parties for adjudication.” Per OKORO, J.S.C
See also the case ofONUORAH V KADUNA REFINERY AND PETROCHEMICAL COMPANY (SUPRA). Curiously the trial Court relied on CBN V AITE OKOJIE (2015) LPELR-24740(SC) to say that only the Federal High Court has jurisdiction to determine Civil claims where the an agency of the Federal Government is a party. It seems the Court below did not read the said decision of the apex Court as it was quoted out of context, the apex Court made it clear the exclusive jurisdiction of the Federal High Court is limited to the items in subparagraph (a) – (r). The apex Court held:
“Under Section 230 of the 1979 Constitution now Section 251 of the 1999 Constitution, the Federal High Court is conferred with exclusive jurisdiction in Civil causes and matters that arise from the administration, management and control of the Federal Government; the operation and interpretation of the Constitution as it affects the Federal Government and any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government. The jurisdiction also affects the agencies of the Federal Government. The proviso is clear. It cannot be invoked where no relevant enactment, law or equity authorizes an action for damages, injunction or specific performance. NEPA v. Edegbero (2002) 18 NWLR (pt.798) p.79 NERDC v. Gonzee Nig. (2000) 9 NWLR (PT.673) P.542 Elelu-Habeeb & Anor v. A.G. Federation & 2 Ors (2012) 2 SC (pt.1) p.145 Obiuweubi v. CBN (2011) 2-3 SC (pt.1) p.46 Under Section 251(1)(a) to (c) of the Constitution, the Federal High Court would have exclusive jurisdiction if and only if: (a) The Plaintiff’s action is one of the causes of action, under Section 251(1)(a) to (s) of the Constitution.” Per RHODES-VIVOUR, J.S.C.
The decision of the trial Court on this point is, once again perverse because the Federal High Court has no jurisdiction on simple contract as reiterated in the recent case ofOIL & GAS EXPORT FREE ZONE AUTHORITY V DR. OSANAKPO (2019) LPELR-49347(SC) and several other decisions of the apex Court. The single issue of party alone cannot determine the jurisdiction of a Court, subject matter is also a factor to be taken into account, seeRAHMAN BROTHERS LTD V N.P.A (2019) 6 NWLR (Pt. 1667) 126 where it was held:
“Once again I have to repeat that though the Respondent is an Agency of the Federal Government by virtue of which it is subject to the jurisdiction of the Federal High Court in appropriate cases, that fact alone is not enough to confer jurisdiction on the Federal High Court in all cases. In addition to the above, the subject matter of the action must also fall within the jurisdiction of the Court (Federal High Court) in order to enable the Court exercise its jurisdiction unhindered.”
In the light above, I resolve issue two in favour of the Appellant.
On issue three as formulated by the Appellant, the question is whether the Court can now proceed to grant the reliefs claimed by the Appellant at the Court below in view of the fact that the Respondent failed to file an Affidavit disclosing a defence on the merit. I have looked at the Record of Appeal and the claim was one that was brought under the undefended list and the Respondent put all its eggs in one basket by filing the objection on jurisdiction which it considered strong enough to dislodge the claim and therefore did not find it wise to file an Affidavit disclosing a defence on the merit. The Appellant urged the Court to invoke its powers under Section 15 and determine the claim. The Court is empowered to invoke Section 15 and determine claims as a trial Court would have done in some circumstances, Respondent relied on the case ofPETER OBI V INDEPENDENT ELECTORAL COMMISSION & OTHERS (2007) 11 NWLR (Pt. 1046) 560 at 639 to list the conditions under which the Court can exercise its powers under Section 15 of the Court of Appeal Act, they are:
i. The lower Court or trial Court must have the legal power to adjudicate in the matter before the Appellate Court can entertain it;
ii. The real issues raised up by the claim of the Appellant at the lower Court or trial Court must be seen to be capable of being distilled from the Grounds of Appeal;
iii. All necessary materials must be available to the Court for consideration;
iv. The need for expeditious disposal of the case or suit to meet the ends of Justice must be apparent on the face of the materials presented;
v. The injustice or hardship that will follow if the case is remitted to the Court below, must clearly manifest itself.”
This was reiterated in the case of the EZEIGWE V NWAWULU & ORS (2010) LPELR-1201(SC) wherein the Supreme Court held:
“Section 15 of the Court of Appeal Act, 2004 provides as follows:- “The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the Appeal, and may amend any defect or error in the Record of Appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final Judgment in the Appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an Appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be reheard by a Court of competent jurisdiction.” In interpreting the above provision, this Court has, in the case of Obi vs INEC (2007) 1 NWLR (Pt. 1046) 465; Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply the following conditions must exist, to wit: (a) that the lower Court or trial Court must have the legal power to adjudicate in the matter before the Appellate Court can entertain it”, (b) that the real issue raised by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; (c) that all necessary materials must be available to the Court for consideration (d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and, (e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.”Per ONNOGHEN, J.S.C
Considering the factors listed by the Respondent, it was resolved earlier on that the Court below has jurisdiction to determine the claim in this appeal. The Appellant formulated 4 Grounds of Appeal and I find Ground three as covering the subject of the claim so as to allow this Court determine the suit, it says:
GROUND THREE:
The learned trial judge erred in law when he failed to assume jurisdiction and enter Judgment for the Appellant and thereby occasioned a miscarriage of Justice.
PARTICULARS
i. The suit being a matter placed on the undefended list the respondent had an obligation to file a defence 5 days before the date fixed for hearing.
ii. The notice of preliminary objection was filed 2 days before the date fixed for hearing the matter.
iii. The Respondents did not file any Notice of intention to defend as required by the Rules of High Court of the Federal Capital Territory.
iv. The Respondent had impliedly admitted all the material facts deposed to by the Appellant.
v. The learned trial Judge ought not to have determined the issue of jurisdiction after it held that there was no proper service of the Originating Summons.”
And furthermore, the relief sought by the Appellant also states:
a. An order allowing this Appeal and entering Judgment for the Appellant.
b. An order setting the decision of the Honourable Justice S.B. BELGORE in the ruling delivered on the 16th November, 2017 in this matter.
In the light of above, the condition is also established and all necessary materials are before the Court, the claim being one that was brought under the undefended list is one that is fought on Affidavit evidence and does not require oral evidence, the Respondent opted not to file an Affidavit disclosing a defence on the merit to warrant transferring the claim to the general cause list for full hearing. Undefended list procedure is one that is meant for expeditious determination, particularly for a liquidated monetary claim, it was held in LEWIS V UBA (2016) LPELR-40661(SC) thus:
“The summary Judgment procedure is for disposing of cases which are virtually uncontested with dispatch. It applies to cases where there can be no reasonable doubt that the plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purposes of delay. It is for the plain and straight forward, not for the devious and crafty. See U.B.A. Plc Vs Jargaba (2007) 11 NWLR (Pt. 1045) 247 @ 270 F-H per I.T. Muhammad, JSC; Shodipo Vs Leminkainen OY (1986) 1 NWLR (Pt. 15) 230: Adebisi Macgregor Ass. Ltd. Vs N.M.B. Ltd (1996) 2 NWLR (Pt. 431) 378; (1996) 2 SCNJ 72 @ 81.” Per KEKERE-EKUN, J.S.C.
The nature of the claim is inherently one that requires expeditious hearing and return this matter back to the trial Court in view of the time lapse will certainly be unfair to the Appellant and will occasion a miscarriage of Justice. The injustice and hardship on the Appellant is manifest if the suit is sent back for trial. Consequently, this Court shall invoke Section 15 of the Court of Appeal Act to determine the claim which is uncontested.
The Appellant by way of a Writ of Summons endorsed with the following reliefs:
i. The sum of N55,245,625.00 (FIFTY-FIVE MILLION, TWO Hundred and Forty-five Thousand, Six Hundred and Twenty-Five Naira Only) representing half of the sum in the invoice dated 10th March, 2016 being the balance of Professional fees due to the Plaintiff under Part 1 of the Schedule to the Legal Practitioner’s (Remuneration for Legal Documentation and Other Land Matters) Order 1991 made pursuant to Legal Practitioners Act, Cap L11 LFN 2004, for services rendered by virtue of the instructions contained in the instruction dated April 5, 2011;
ii. 10% Interest on the said sum of N55,245,625.00 (FIFTY-FIVE MILLION, TWO Hundred and Forty-five Thousand, Six Hundred and Twenty-Five Naira Only) from 21st April, 2016 till the day of the judgment in accordance with the Legal Practitioner’s Act.
iii. 10% interest on the said sum of N55,245,625.00 (FIFTY-FIVE MILLION, TWO Hundred and Forty-five Thousand, Six Hundred and Twenty-Five Naira Only) together with interest as in (b) above from the date of judgment till the sum is liquidated.”
The writ is supported by an Affidavit of 48 paragraphs sworn to by the Plaintiff personally. The Affidavit is accompanied by Exhibits A-J and these are:
EXHIBIT-A: letter of instructions from the Respondent.
Exhibit-B: letter acknowledging receipt of perfected documents.
Exhibit-C1 – C5: Acknowledgment copies of letters.
Exhibit-D: A copy of a letter forwarding purported 60% of professional fees.
Exhibit-E: acknowledgment copy of Appellant’s letter to the Respondent.
Exhibit-F: Letter from the Respondent
Exhibit-H: letter forwarding invoice after completion of documentation.
Exhibit-I: A letter to the Respondent on the payment of N1,064,000.00 without explanation as to what the payment was meant for.
Exhibit-J: letter from the Respondent stating the fees it would pay to the Appellant.
The Affidavit deposed to the facts of the brief for documentation towards a loan and the brief was perfected after some time. The Appellant, a Legal practitioner sent an invoice of his fees as required by the Legal Practitioner’s Act. The Respondent made part payment and subsequently neglected to pay up inspite of several demands. The claim here is the outstanding balance due to the Appellant from the brief given to the Appellant. There was an invoice and formal demand for payment. The job was duly executed.
The Respondent as observed earlier did not file an Affidavit contesting the claim. The apex Court in INAKOJU V ADELEKE (2007) LPELR-1510(SC) opined that was a strange strategy because it could backfire and admonished parties in the same position as the Respondent to not put their eggs in one basket particularly where the procedure is not neat and versatile because when the basket breaks, the whole eggs will be lost and this is what the Respondent in this case did, they neglected to file a Counter Affidavit stoutly standing on their objection challenging the trial Court’s jurisdiction. They did not contemplate a situation that the objection could fail because as they argued in their brief, lack of jurisdiction is obvious on the face of the originating process and oblivious of the representation they made as to where their Corporate Office is situate. That is bad strategy as nothing stopped them from filing the Affidavit to show cause even as an alternative, see also HON. (MRS) DORATHY MATO V IORWASE HERMAN HEMBER & 2 ORS (2018) 5 NWLR (Pt. 1612) 258 at 289.
The claim is not opposed as the depositions of the Appellant narrating the facts that gave rise to the claim of professional fees were not contradicted. They are deemed admitted, that is settled position of law, see MABAMIJE V OTTO (2016) LPELR-26058(SC) where it held thusly:
“No Counter-Affidavit was filed by the Appellant. Where facts deposed to in an affidavit have not been controverted such facts must be taken as true except they are moonshine. See Alagbe v. Abimbola 1978 2 SC p.39. Where an affidavit is filed, deposing to certain material facts and the other party does not file a counter-affidavit to dispute the facts, the facts deposed to in the affidavit would be deemed unchallenged and undisputed.” Per RHODES-VIVOUR, J.S.C.
The Respondent having admitted the facts deposed to by the Appellant, there is burden on the Appellant to prove further as Legal Authorities stipulated. The Court also has no option but to do the needful in the circumstances. The claim for professional fee is supported by documents and backed by facts in the supporting Affidavit, the invoice submitted to the Respondent as required by the Legal Practitioner’s Act has not been paid and it deserves to be paid since there was no negotiation for its downward review. The Respondent neglected to respond to several demands from the Appellant for payment. That was a window for negotiations but they did not. The facts deposed to in the Affidavit in support remain unchallenged and I believe them.
In the light of above, I find for the Appellant and say the claim against the Respondent was proved. I hereby find for the Appellant as follows:
i. The sum of N55,245,625.00 (Fifty Five Million, Two Hundred and Forty Five Thousand, Six Hundred and twenty five Naira) Only.
ii. 5% (Five percent) interest on the said sum from today until the entire sum is fully liquidated.
The claim for pre judgment interest was not established and consequently it is not granted.
The Appeal is meritorious and hereby allowed. The ruling of the trial Court delivered on the 16th day of November, 2017 is hereby set aside. The claim of the Appellant succeeds in part and is hereby granted except the pre-judgment interest.
I hereby award N200,000.00 cost in favour of the Appellant to be paid by the Respondent.
PETER OLABISI IGE, J.C.A.: I have read the lead judgment delivered by my learned brother YARGATA BYENCHIT NIMPAR, JCA in APPEAL NO. CA/A/1166/2019.
I agree with the reasoning and conclusion therein.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
CHUKS UDO KALU, Esq. For Appellant(s)
SUNDAY ADEAGBO, Esq., with him, A.M.A ADEYUNMOBI, Esq., and F. A. BANIKE, Esq., For Respondent(s)
