Abic Nig. Ltd. & Ors V. Ecobank Nig. Plc. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the leading Judgment)

This is an appeal by the 1st, 2nd, and 3rd Appellants against the Ruling of the Abia State High Court, Aba presided over by Honourable Justice Obiseki Orji dated the 17th day of May, 2000 partially dismissing the motion of the Appellants which prayed the court to set aside the service of the writ of summons on them.

The facts which led to this appeal are as follows:

The 1st, 2nd, and 3rd Defendants now Appellants are limited liability Companies incorporated under the Companies and Allied Matters Act Cap 59 Laws of the Federation of Nigeria 1990. The three Companies share the same office at No. 104 Aba/Owerri Road, Aba. The 4th and 5th Defendants are Directors of the 1st Defendant Company. A bailiff of the Aba High Court went to the said address and served the receptionist of the 1st Defendant nor 1st Appellant will all the five writs of summons meant for each of the five Defendants. The Defendants through their counsel entered a conditional appearance to the suit and filed their joint Memorandum of Appearance. They also filed a motion praying the lower court to set aside the purported service of the writ of summons on all the Defendants on the ground that none of them was served with the writ of summons according to law. The lower court heard argument on the said motion to which the Respondent did not file any affidavit in opposition.

The learned trial judge delivered his Ruling and set aside the service of the writ of summons on the 4th and 5th Defendants only. In the case of the 1st, 2nd and 3rd Defendants he held that the service of the writs of summons meant for them on the receptionist of the 1st Defendant was proper service. He held that the said receptionist of the 1st Defendant Company can be taken to be principle officer of the company. The 1st, 2nd and 3rd Defendants/Appellants were dissatisfied with the said Ruling. They filed a Notice of Appeal containing two grounds of appeal.

On 18/9/06, the Respondents filed a Respondent’s Notice to contend that the judgment should be affirmed on grounds other than those relied on by the court below. The Appellants’ brief is dated 28/10/04 filed 22/9/05. The Appellants also filed a Reply brief is dated 27/11/06 filed on 17/1/07 deemed filed on 9/2/07. The Respondent filed a Respondent’s brief dated 15/9/06 filed on 18/9/06 which was deemed filed on 20/9/06. The Respondent’s Notice dated 15/9/06 filed on 18/9/06 was deemed filed on 20/9/06.

The Appellants identified one sole issue before the court for determination which is stated below.

“Was the learned trial Judge right when he held that the service of the three writ of summons meant for the 1st-3rd Defendants/Appellants or the receptionist of the 1st Defendant/Appellant was proper service of same on them and so refused to set aside the service?”

This sole issue was also adopted by the Respondent and is also hereby adopted by me in the determination of this appeal.

Learned Appellants’ counsel argued that the learned trial judge was in error to hold that the service of the writ of summons meant for 1st, 2nd & 3rd Appellants on the receptionist of the 1st Appellant was proper. Counsel argued that Order 12 of 8, Abia State High Court Rules provides that the writ may be served on any director, secretary or other principal officer of the company. Counsel argued that a receptionist cannot pass as an alter ego of the company not quality as a Director or Secretary. He argued that the receptionist was not a member of staff of the 2nd & 3rd Appellants let alone a principal of officer. He cited EKUMA & ANOR, V. SILVER EAGLE SHIPPING AGENCIES PH LTD. (1987) 4 NWLR PT. 65 PG. 472 AT 480; CROSS RIVER BASIN & RURAL DEV. AUTHORITY V. SULE BABA ALI SULE (2001) 6 NWLR PT. 708 PG. 94 AT 208 – 209.

In reply the learned Respondent’s counsel argued that the writ of summons was served on the receptionist of the 1st Appellant for onward transmission to the three Appellants and which she actually delivered to them and they acknowledged receipt of the said writs. The learned trial judge held that notwithstanding the absence of direct service of the writs of summons and statement of claim by the bailiff that there was proper service of same on the Appellants. Learned counsel also submitted that the service of the writs on the Receptionist of the 1st Appellant for the 1st, 2nd & 3rd Appellants who share the same office is proper service. Though the service was not direct, the Appellants being an artificial person will be served through a natural person. The most important thing is that the writs were delivered by the bailiff to the receptionist who delivered same to the Appellants. She is a principal member of the 1st Appellant who shares the same Director/Manager as well as office. It is her duty in the office that matters not her work. He cited PANACHE COMMUNICATIONS LTD. V. AIKHOMU (1994) 2 NWLR PT. 327 AT 420.

Learned counsel for the Appellants’ in reply argued that the decision in PANACHE COMMUNICATIONS LTD. V. AIKHOMU supra, was given per incuriam and contrary to the case of ALH. ODUTOLA V. INSPECTOR KAYODE (1994) 2 NWLR PG. 324 PG. 1 AT 19-20 where the Supreme Court held that where service of a process is ordered to be effected in a particular manner, it must be so effected to be valid.

This court in NBC PLC V. UBANI (2009) 3 NWLR PT. 1129 PG. 512 AT PG. 534-535 explained the position of the law clearly. Under the Companies Act, 1968, service on a company or corporation could only be effected by service on the Secretary or Principal Officer of the corporation or company at its registered office. However, S.7 of CAMA 1990 transferred the question of service of court processes from the Companies Act to the applicable rules of court.

Now, at the time relevant to his application, the provisions of the Abia State High Court Rules governing service of processes on incorporated companies was Order 12 r 8 of the Imo State High Court (Civil Procedure) Rules 1988 applicable to Abia State. It provides as follows: