African Continental Bank Plc V. Losada Nigeria Ltd. & Anor (1995)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

This is an appeal against the judgment of the Court of Appeal Lagos Division, delivered on the 17th day of April, 1991 dismissing the Appellant’s appeal against the ruling of the Ikeja High Court of Lagos State delivered on January 17th, 1988 which set aside an earlier order of the court entering judgment for the Appellant (as Plaintiff) in that court on the ground inter alia that the Motion for Judgment was not served on the Respondents (as the Defendants). The facts of the case which are not disputed may be stated thus-

The Plaintiff/Appellant issued a Writ of Summons against the Defendants/Respondents on the 22nd day of February 1988 claiming against them jointly and severally the sum of N2.5 million being the balance of overdraft facilities granted to the Respondents by the Appellant as their bankers. The Appellant was unable to serve the Writ of Summons and the accompanying Statement of Claim on the Respondents personally. It therefore brought an application for leave to serve same by substituted means. The application was granted on 21st March 1988 when the court said –

“It is hereby ordered as prayed. Service of the Writ of Summons and the Statement of Claim and all other processes so far filed in this suit (if any) by pasting same on the front door of the Defendants’ last known place of abode/business located at No. 50, Community Road, Akoka, Lagos, shall be good and sufficient service of the processes aforesaid.”

The service by pasting was effected by the Bailiff on the 30th March, 1988. When the Respondents failed to enter appearance and file a Statement of Defence within the stipulated time, the Appellant brought an application for judgment on 13th June, 1988. The Appellant purportedly served the said application by pasting it at the address of the Respondents just in the same manner that the Writ of Summons and the Statement of Claim were served above. Thereafter the learned trial judge entered judgment for the Appellant against the Respondents as per its Writ of Summons and Statement of Claim on the 5th day of September 1988.

Judgment was executed on the properties of the 2nd Respondent on 18th November 1988. The respondents then on the 23rd November, 1988 brought an application to set aside the said judgment and the execution thereof and for leave to file a defence in the suit.

After hearing arguments from both sides, the learned trial judge in a considered ruling delivered on the 17th day of January, 1989 had no difficulty in setting aside his own judgment which he entered in default of appearance and defence as well as the execution issued.

The Appellant was dissatisfied with the Ruling and appealed to the Court of Appeal, Lagos Division. The following issues were set down for determination –

“1. Whether the mere filing of the Motion for Judgment in the High Court Registry does or does not constitute a valid service of the same on the Defendants/Respondents under Order 6, Rule 5 of the High Court of Lagos State (Civil Procedure) Rules (1972) considering the fact that they had not given an address for service by entering an appearance at the time the said Motion was filed.

2. Whether the further service of the Motion for Judgment on the Defendants/Respondents by pasting on the door No. 50, Community Road, Akoka (even if necessary) was irregular in the circumstances of this case, simply because no leave of court was obtained before such mode of service was adopted.
3. Even if the service of the Motion for Judgment by pasting without leave of court authorising such, was irregular, was the irregularity capable of rendering the proceedings void such as to justify the trial judge raising the issue suo motu”

The Court of Appeal considered all the three issues and relevant authorities and unanimously dismissed the appeal. It is against the judgment of the Court of Appeal that the Appellant has now appealed to this Court.

Parties have filed and exchanged briefs of argument. Mr. Agbakoba learned counsel for the Appellant has in his brief submitted three issues for determination as follows –

“(i) Whether the learned Justices of the Court of Appeal were right to hold, as they did, that on a proper construction of Order 6, Rule 5 of the High Court of Lagos State (Civil Procedure) Rules, 1972 a Motion on Notice to enter final judgment in default of appearance and defence is not a “Notice” or “other document” deemed sufficiently served on a party not entering appearance to a suit by filing same at the Court’ s Registry.

(ii) Whether the learned Justices of the Court of Appeal were right to hold, as they did, that the learned trial Judge was right in raising the issue of propriety of service of the Motion for Judgment by the Appellant in default of appearance and defence against Respondents, Suo motu, when the Respondents had not complained of such impropriety.

(iii) If the answers to questions (i) and (ii) above are in the negative, what will be the effect on the Decision of the Court of Appeal given on April 17,1991″

It is perhaps necessary to observe that what the appellant termed issue (iii) above is clearly not an issue since it is not based on any ground of appeal as required by the rules of court. It is doubtless that if issues (i) and (ii) succeed at all the court is always in a position to make any appropriate consequential order. It is therefore not completely surprising that the appellant failed to argue the said issue (iii) in its brief. It is to be deemed abandoned and struck out accordingly.

Now, a careful reading of the remaining two issues submitted for determination above will show that in substance they are the same with the three issues earlier canvassed and lost at the Court of Appeal. The respondents would appear therefore to be right when they stated in their brief that the single issue for determination in this appeal is –

“Whether the learned Justices of Appeal rightly upheld the decision of the learned trial Judge in exercising his discretion to raise the issue of the propriety of the service of the Motion for Judgment on the basis of which the Appellant obtained Judgment”,

even though they proceeded to address the issues as formulated by the appellant.

On issue (i) Mr. Agbakoba learned counsel for the appellant relying on Order 6 Rules 4 & 5 of the High Court of Lagos State Civil Procedure Rules, 1972 (hereinafter simply referred to as the Rules), submitted that there are two ways by which documents not requiring personal service might be served. First, where the defendant to be served has entered an appearance, the document to be served may be delivered to any adult person at the address for service provided in the Memorandum of Appearance. Second, where the defendant has entered no appearance, then the document is sufficiently served when filed in the court’s Registry. He said although by Order 6 Rule 2 of the Rules, all Writs of Summons, Originating Summons, and other originating processes are required to be served personally, there is nowhere in the Rules where the class of documents of which personal service is not required are clearly spelt out; but that any application brought during the pendency of an action would constitute a subordinate or mesne process as against an originating process. It was contended that Order 6 Rule 5 of the Rules makes express provision to cover service of mesne or subordinate processes on a defendant in a situation in which the defendant has entered no appearance to a Writ when it provides that “all writs, notices, pleadings, orders, summonses, warrants and other documents” in respect of which personal service is not expressly required shall be sufficiently served when filed in the court’s Registry. It was submitted that on the facts of this case and from the clear and unambiguous wording of Order 6 Rule 5, the Motion on Notice to enter Judgment against the defendants in default of appearance and defence filed on June 13, 1988 would by the simple act of filing same in the Registry, without more, be deemed to have been served on the Defendants. He said where words in a statute are clear and unambiguous, they should be given their ordinary meaning and enforced accordingly. That it is nowhere stated in the Rules that a Motion for Judgment in default of appearance and defence required to be served personally on a defendant. He referred to the case of Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258 S.C. and Okumagba v. Egbe (1965) 1 NMLR 62; (1965) 1 All NLR 62.

It was also contended that the Court of Appeal erred in finding that strict adherence to the clear and unambiguous provision of Order 6 Rule 5 would be destructive of the audi alteram partem rules of our adversary system of justice since it was not an issue in the High Court and could not therefore properly be raised in the Court of Appeal.

Mr. Sofola learned Senior Counsel for the respondents in his brief submitted that the Court of Appeal was right in holding that Order 6 Rule 5 of the Rules was not applicable to a Motion for Judgment and that the applicable order was Order 40 of the Rules. Accordingly failure to allow the Respondents two clear days to answer to the application ordinarily violated their right to be heard. That his contention was reinforced by the finding of the trial court that the Motion for Judgment was never served at all. It was further submitted that on the clear and unambiguous words of Order 9 Rule 14(3) of the Rules, the notice of the Motion for Judgment shall be served personally and returnable not less than four days after such service in the case of default of defence and that the appellant was wrong in its contention that there was no express provision concerning whether the Motion for Judgment was to be served personally or not. He also referred to Section 33(1) of the 1979 Constitution and submitted that being one of the fundamental rights guaranteed to a citizen it over-rides any other law or subsidiary legislation and courts of law are bound to have regard to it as the Court of Appeal had rightly done in this case.

It is clear to me that issue (i) above seeks for a true and proper construction of Order 6 Rule 5 of the 1972 Rules. It reads –

“5. Where no appearance has been entered by or for a party, in compliance with the provisions of these Rules, or where a party or his legal practitioner, as the case may be, has omitted to give an address for service as required by Orders 3 and 8 all writs, notices, pleadings, orders, summonses, warrants and other documents, proceedings, and written communications in respect of which personal service is not expressly required shall be deemed to be sufficiently served when filed in the Registry unless the court or a Judge in Chambers otherwise directs.”

One would easily agree with Mr. Agbakoba that literally speaking, under Rule 5 above, if a document is not required to be served personally and if the defendant has entered no appearance then the document is deemed sufficiently served when filed in the court’s Registry. This would however in my view depend on the nature and type of document in question and whether or not the document does not come under any other provision of the Rules. But the factual situation here is that the Motion for Judgment was not only filed but purportedly pasted on the premises of the Respondents, and it was on the strength of the purported service that judgment was entered in favour of the Appellant. So the vital question to ask is Does a Motion for Judgment come within the ambit of “other documents” in Rule 5 in respect of which personal service is not expressly required The Court of Appeal in the lead Judgment of Ademola J.C.A., answered the question thus

“A Motion for Judgment is an application for Judgment to be entered in favour of a party. Motions and other applications are governed by Order 40 of the High Court of Lagos State (Civil Procedure) Rules 1972, and not Order 6 generally which deals with the service of writs, summons, warrants, and other documents of similar character.

A motion must be served on the other party at least (2) clear days before it is heard (Order 40 Rule 5). It is necessary before a motion is heard that any person who is affected ought to have notice of such motion and the court could dismiss or adjourn such a motion until such notice of the motion is given to the other side (Order 40 Rule 6).

From what I have been saying so far, it is quite clear that a motion cannot be in the category of documents that are deemed served by mere filling of same in the Registry as envisaged by Order 6 Rule 5 as it has been canvassed in the argument of Mr. Agbakoba.”

I endorse the view so clearly expressed above. The Court of Appeal rightly in my view came to the conclusion that a Motion for Judgment comes under Order 40 which requires personal service and not under Order 6 Rule 5 as contended by Mr. Agbakoba.It does not also fall under Order 9 Rule 14 which provides for action by Money-Lenders under the Money Lenders Act. So that although the Court of Appeal (per Ademola J.C.A.). rightly in my view said in his judgment that the argument of Counsel on Order6 Rule 5 ‘”looks formidable” and that “its acceptance is dangerous and destructive of audi alteram partem rules in our adversary system”. that was not the reason for rejecting the argument. It was primarily and simply because Rule 5 did not apply at all. Enough of that.

The Motion for Judgment should therefore have been served personally on the Respondents. It was only when personal service failed that the court should have been moved as may be appropriate for a substituted service. The court has a direction to make or refuse to make an order for substituted service. That was what the appellant herein purported to have done single handedly without the leave or order of the trial court. It was clear however, from the order made by the learned trial judge on the 21st March 1988 on the application for substituted service that that order was restricted to service of the writ of summons, the Statement of Claim and other processes “so far filed” only. That order cannot by any stretch of imagination be intended to be a blank cheque to extend to service of other court processes filed after that date. The Motion for Judgment which was filed on 13th June 1988 was therefore clearly outside the ambit of that order. It was essential for the motion to have been served since the court has no jurisdiction over a person who has not been served unless he of course submits to jurisdiction. The two lower courts were therefore clearly right when they came to the conclusion that the Motion for Judgment was never served on the respondents and that the judgment obtained thereon was a nullity and ought to be set aside (see Sken Consult Nigeria Ltd. V. Ukey (1981) 1 S.C. 6; United Nigeria Press Ltd. & Anor. V. Adebanjo (1969) 1 ANLR 431.

Issue (ii) relates to the question of propriety of service of the Motion for Judgment by the Appellant in default of appearance and defence against the Respondents which was raised suo motu by the learned trial Judge and upheld by the Court of Appeal. Mr. Agbakoba rightly in my view agreed that it was the duty of a Judge in determining any cause or matter to exercise due diligence in order to ensure that justice is done between the parties and cited the case of Sodipo v. Lemminkainen OY & Anor. (1986) 1 S.C. 197 at 217; (1986) 1 NWLR (Pt.15) 220 in support. However, he contended that since the respondent’s complaint in the High Court was not that the Motion for Judgment was served on them irregularly by pasting but that they were not aware of the suit at all until execution was levied, the trial court could have only validity raised the point suo motu if it was fundamental to the jurisdiction of the court. He said the mode of service being a mere irregularity, the trial judge exceeded his jurisdiction to have raised the issue suo motu because an irregular proceedings could only be set aside by the affected party.

The Respondents in their brief submitted that the trial court being a court of law and justice and not of technicalities or injustice the learned trial judge rightly identified the issue involved and raised it suo motu which was to enable him come to a just decision in the case. Further when the matter was raised suo motu the learned trial judge gave the parties the opportunity of addressing it and thereafter came to his decision thereon. We were referred to Board of Customs & Excise v. Barau (1982) 10 Sc. 48. They said the learned trial judge having exercised his discretion judicially and judiciously on the matter which was fundamental in the case the Court of Appeal was right not to have interfered with that exercise of discretion. Reference was made to University of Lagos & Anor. V. Aigoro (1985) 1 NWLR (Pt. 1) 143 and Williams v Williams (1987) 2 NWLR (Pt. 54) 66.

I have no hesitation in agreeing with the lower courts that failure to serve the Motion for Judgement on the Respondents in this case was not a mere irregularity but a fundamental irregularity which vitiated the entire proceedings and entitled the respondents to have the judgment of the trial court set aside. A trial judge being a judge of fact and law it is within his rights in raising any issue suo motu as the interest of justice demands.

I also agree with the Court of Appeal when it said on page 68 of the judgement thus –

“The second issue in this appeal is as to the propriety of the learned judge raising the issue of service or non-service suo motu. The short answer lies in the dictum of the Supreme Court in Chief Harold Sodipo v. Lemminkainen OY & Anor. (supra) quoted above to the effect that “a judge exists to determine disputes and examine with due care and microscopic senses all matters before him in his pursuit of justice”.

That quotation to my mind is a complete answer to criticism by the appellant of the way and manner the learned trial judge had dealt with the matter. It would be in my opinion the pursuit of great injustice, if the learned judge discovering the irregularity in the service of the motion for judgment, had allowed sleeping dogs to lie.”

It is indisputable that a court of law is competent to set aside its own judgement in a number of circumstances. And the present circumstance, when the judgment obtained was a nullity, is one of such circumstances.

The two issues having been resolved against the appellant, this appeal fails.

It is accordingly dismissed. The judgments and orders of both the High Court and the Court of Appeal are hereby confirmed Cost of N1,000 to the respondents.

UWAIS, J.S.C: I have had the privilege of reading in draft the judgment read by my learned brother Kutigi, J.S.C. I am in complete agreement with it. I too see no merit in the appeal. I accordingly dismiss it with N1,000.00 costs to the respondent.

OGWUEGBU, J.S.C: I have had the advantage of reading in advance the draft of the judgement just delivered by my learned brother, Kutigi, J.S.C. I agree with him that the appeal be dismissed.

This appeal is against the judgment of the court of Appeal, Lagos division which dismissed the appeal of the appellant to that court. The main issue for determination in the appeal turns on the proper construction to be placed on Order 6, Rule 5 of the High court of Lagos State (Civil Procedure) Rules. 1972.

The Rule Provides:

“6(5) Where no appearance has been entered by or for a party, in compliance with the provisions of these Rules, or where a party or his legal practitioner, as the case may be, has omitted to give an address for service as required by Orders 3 and 8 all writs, notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications in respect of which personal service is not expressly required shall be deemed to be sufficiently served when filed in the registry unless the Court or a judge in Chambers otherwise directs.”

The writ of summons and the statement of claim in these proceedings were served on the defendants/respondents by pasting following a court order made on the application of the plaintiff/appellant.

The learned trial judge while granting the application for substituted service made an order granting leave to serve the writ of summons, the statement of claim and all other processes so far filed in the suit (if any) by pasting same on the front door of the defendants’ last known place of abode/business located at No. 50 Community Road, Akoka. Lagos.

Having served the defendants by substituted means, the plaintiff/appellant proceeded to serve the motion on notice for judgment in default of appearance by pasting the same. Judgment was accordingly entered for the plaintiff for the sum or, two million, five hundred thousand naira plus interest.

The defendants applied to the court to set aside the judgment and the writ of execution issued thereon.

The application to set aside the judgment and the execution was granted. The learned trial judge said:

“I therefore hold that the said notice for further directions upon which the judgment of 5th September, 1988 was based is a notice requiring to be served. I hold that the said notice was not properly served Accordingly, the judgement of this court entered in default of appearance and of filing a defence to the action on the 5th day of September, 1988 and the execution issued thereon are hereby set aside .

The plaintiff/appellant who was dissatisfied with the decision of the learned trial Judge appealed to the Court of Appeal, Lagos Division, That court dismissed his appeal and affirmed the decision of the learned trial Judge.

The plaintiff has further appealed to this court. It was contended on behalf of the appellant by Mr. Olisa Agbakoba both in the appellant’s brief of argument and oral submissions that by order 6, rule 2 of the Lagos State High Court (Civil Procedure) Rules, 1972 all writs of summons, originating summons and other originating processes require to be served personally, that the rules did not spell out the class of documents of which personal service is not required and that an application brought during the pendency of an action, for example, a motion to amend pleadings would constitute a subordinate process.

It was his contention that order 6, rule 5 made express provision to cover service of subordinate processes on a defendant in a situation where the defendant has entered no appearance to a writ. He further submitted that the “notices” or “other documents” referred to in this rule refer to processes filed during the pendency of an action ..

Mr. Agbakoba also submitted that from the clear and unambiguous wording of order 6, rule 5, the motion for judgment against the defendants in default of appearance, by the act of filing same in the Registry without more, should be deemed to have been served on the defendants provided two conditions are fulfilled, namely; (a) the defendants must have failed to file an appearance or omitted to provide an address as required by the rules and (b) the motion on notice to enter judgment in default of appearance and defence must constitute a “notice” or “other documents” within the meaning of that order of which personal service is not expressly required.

It was also submitted that the defendants’ affidavit in support of the motion to set aside the judgment did not state that the motion for judgment was served on them irregularly and that during the proceedings on 9:1:89, the learned trial judge observed suo motu that the notice for further directions was not properly served in that it was served by pasting without leave of the court having been obtained.

Mr. Kehinde Sofola, S.A.N., submitted if his brief that the relevant issue being considered in this appeal is the inherent and statutory jurisdiction vested in the trial court to be fair and just in discharging its duties under the law, that the trial court is a court of law and not of technicality and that courts exist to do justice and not injustice. He referred us to the cases of Nneji v. Chukwu (1988)3 N.W.L.R. (Pt. 81) 184, Bello v. Attorney-General. Oyo State (1986)5 N.W.L.R. (Pt. 45) 828 and Erisi v. ldika (1987)4 N.W.L.R. (Pt. 66)503.

It was his further submission that where the court raises an issue suo motu it is required to allow the parties an opportunity of addressing it on that issue before it comes to a determination thereon and that it was done in this case. He cited the case of Board of Custom & Excise v. Barau (1982)10 S.C. 48 at 106-107.

We were urged to uphold the concurrent findings of the trial court and the Court of Appeal and in the alternative, to hold that where there is a likelihood of a breach of the principle of audi alterem partem or that of Section 33(1) of the 1979 Constitution, the single approach is to nullify the proceedings deriving therefrom.

The failure to serve the defendants/respondents with the notice of motion in default of appearance and filing of statement of defence cannot be a mere irregularity. When the appellant found that the service of the said notice by pasting was irregular as the leave for substituted service granted by the trial court on 21:3:8 did not cover the said motion, he sought refuge in Order 6, Rules of the Rules.

The said Order 6, Rule 5 of the High Court of Lagos State (Civil Procedure) Rules, 1972 should not be read in isolation from the other Rules of that Court. Order 40 of the Rules deals with motions and other applications. Rules 3, 5 and 6 thereof show clearly that the application for judgment in default of appearance comes within the purview of Order 40 and is governed by it. Rules 3, 5 and 6 provide:

“3. Except where according to the practice existing at the time of the passing of the Act any order or rule might be made absolute Ex Parte in the first instance, and except where notwithstanding Rule 2 a motion or application may be made for an order to show cause only, no motion shall be made without previous notice to the parties affected thereby. But the Court if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order Ex Parte upon such terms as to costs or otherwise .

5. Unless the Court or a Judge in Chambers gives special leave to the contrary there must he at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion.
6. If on the hearing of a motion or other application the Court shall be of opinion that any person to whom notice has not been given ought to have had such notice, the Court may either dismiss the motion or application or adjourn the hearing thereof, in order that such notice may be given ” (Italics are for emphasis only).

The above Rules in addition to the audi alterem partem rule which is one of the principles of natural justice are meant to ensure that no one is to be condemned, punished or deprived of property in any judicial proceeding: unless he had an opportunity of being heard. These rules are also entrenched in section 33(1) of the 1979 Constitution. Order 6, Rule 5 does not apply in the instant case.

The words “shall” and “must” appearing in rules 3 and 5 of Order 40 are mandatory, except where the court directs otherwise. In this case, the purported service of the notice of the motion for judgment in default of appearance had been shown earlier in this judgment to be unauthorised. It was not a mere irregularity. It was a fundamental omission. The judgment based on it is vitiated by the irregularity. See Sken Consult Nig. Ltd. & Or. v. Ukey (1981) 1 S.C. 6 at 26 and Craig v. Kanssen (1943) K.B. 256 “It is beyond question that failure to serve process where service is required goes to the root of our conceptions of the proper procedure in litigation. Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who has no notification of any intention to apply for it has never been adopted in this country. ” Per Lord Green, M.R. at p.262.

The principle is that unless and until the court has pronounced a judgment upon the merits or by consent, it has the power to revoke the expression of its coercive power where it has only been obtained by a failure to follow any of the rules of procedure as in this case. See Evans v. Bartlam (1937)A.C. 473 at480 and Grimshaw v. Dunbar (1953)1 Q.B. 408 at 416.

The Court of Appeal in my view, came to the right decision when it held that non-service of the motion for judgment affected the jurisdiction of the trial judge and that he was right when he raised the issue suo motu. The learned trial judge gave learned counsel for both parties opportunity to address him on the issue he raised and they did so exhaustively before he came to a decision thereon. See Board of Customs & Excise v. Barau (1982) 10 S.C. 48 at 106-107.

In conclusion, there is no merit in the appeal. I, too, dismiss it with costs as assessed in the lead judgment of my learned brother, Kutigi, J.S.C.

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SC.12/1992