African Continental Bank Plc Vs Losada Nigeria Ltd. And Ors. (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 17 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 authorizing 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.