Ajedani Eigege V. Edoh Olobo (1993)
LawGlobal-Hub Lead Judgment Report
RAPHAEL OLUFEMI ROWLAND, J.C.A.
In the High Court of Plateau State holden at Jos, this suit No. PLD/J43/85 presided over by Uloko J, (as he then was) commenced on 11th day of November, 1986. For reasons not borne by the records of the court below the suit was transferred to High Court No.3, Jos, presided over by Momoh J, who started the case de novo thereby marking the beginning of the chequered history of the case.
In the court below the case was initially instituted by the respondent and one Omada Ameh against Ehada Ogba Sarkin Iggah in Loko District of Nassarawa Local Government Area of Plateau State. At that stage the plaintiffs were seeking only an injunction against the defendant.
Subsequently, the plaintiffs amended their statement of claim in which they added more reliefs and joined two other defendants – namely Ejeh Edoh and Obulama Ikaka.
The case then proceeded against the aforementioned three defendants.
In its judgment delivered by the court below on 20th July, 1987, the court granted the reliefs sought by the first plaintiff now the respondent herein against the first and second defendants but dismissed the claim of Omada Ameh against the third defendant. Not satisfied with the judgment, the defendants filed an appeal against it to this court. The Original Notice of Appeal contains one ground of appeal. However, with the leave of this court as per motion filed on 20th September, 1989 and granted on 30th November 1989, additional grounds of appeal were added to the original ground and leave also granted to add and argue issues of law not raised before the court below.
It would appear as borne by the briefs of the appellant and the respondent that this case is a ‘death trap’ as all the original defendants at the court below are now dead. They are:-
Ehada Ogba Sarkin Iggah, Ejeh Edoh and Obulama Ikaka.
The facts of the case could be summarised thus:-
Edoh Olobo the respondent herein claimed at the court below the title of Ondomain Agatu Clan of the village of Ayele-Iggah on the ground that he is the first son of his late father who held the title last. According to him the deceased first defendant – Ehada Ogba Sarkin Iggah threatened to strip him of the title which he had earlier conferred on him. The dead first defendant eventually conferred the title on the deceased second defendant. The case for the first and second deceased ‘defendants before the lower court was that after the death of the holder of the Ondoma title, the eldest male in the extended family not necessarily the son of the last holder, will take over the title.
On the other hand the appellant contended that the respondent never performed the alleged burial ceremony of his father and was never installed the Ondoma of Ayele-Iggah but that it was the then second appellant who was installed and the question of stipping the respondent of his title did not arise.
The Notice of Appeal contains five grounds as follows:-
“ORIGINAL GROUND OF APPEAL
1. The judgment is against the weight of evidence.
ADDITIONAL GROUNDS OF APPEAL
2. The learned trial Judge erred in law in taking cognisance of the suit before her and delivering judgment thereon without jurisdiction.
PARTICULARS OF ERROR
(a) The Writ of Summons dated 17/9/88 and filed on the same day, only sought for an injunction simpliciter, when there was no pending substantive suit between the parties.
(b) The purported amended statement of claim without the leave of the Court has different actions from the Writ of Summons.
(c) The two Respondents in their purported amended statement of claim joined their reliefs in one suit based on different causes of action against the appellants.
(d) The appellants were never served with any amended Writ of Summons joining them as Defendants with additional claims.
3. The learned trial Judge again erred in law and misdirected herself on the facts in the following passage which strongly influenced her judgment:-
“This is why I think the Agatu custom of Ayele-Iggah imposes upon the eldest son of a title father the extra burden of performing the prescribed customary burial rites at his own expenses and unassisted as a condition precedent to conferring him with the title … To succeed a titled man by his eldest son implies succession to the family title (here of Ondoma), succession of his father’s transmissible family rights and obligation; and succession to the rights and obligation as the over-all head of the ruling house.”
and this occasioned miscarriage of justice. (See page 79 lines 27-32 to page 80 lines 1-8 of the Record).
PARTICULARS
(a) The Respondent never pleaded the custom of the Agatu tribe relative to the succession to the office of Ondoma in their amended statement of claim, and
(b) There being no evidence in support of the above findings, the learned trial Judge was clearly in error as aforesaid in so finding.
4. The learned trial Judge erred in law when she held thus:-
“Knowing that he was eligible and entitled to hold the title, the 2nd Defendant had all along slept on his right and acquiesced by his conduct to the conferment of title on the 1st Plaintiff. He can not now be heard to complain…The principle of law to be applied in this case is that where a party acquiesced in the commission of an irregularity or error affecting his interest and allows it to pass to someone else is too late to rectify or complain about it later.”
(See page 93, lines 6-10 and page 94, lines 26-31) and this error occasioned miscarriage of justice.
PARTICULARS OF ERROR
(a) The 1st Respondent never estoppel as part of his case.
(b) If the learned trial Judge had adverted her attention to the case of Mogo Chinwendu vs. Nwanegbo Mgbamali (1980) 3-4 SC pages 74 & 80, she would have come to a different decision.
(c) The Appellant pleaded and adduced evidence to the fact that it is the custom of the Agatu people that the eldest man in the ruling house succeeds to the office of Ondoma. This being a rule of public policy can only be waived expressly and not by conduct.
5. The learned trial Judge further erred in law and on the facts in granting the reliefs sought by the 1st Respondent against the 1st and 2nd Appellants, and this occasioned miscarriage of justice.
PARTICULARS
(a) The evidence of the witnesses for the Respondent relied upon by the learned trial Judge were based on the facts not pleaded.
(b) The learned trial Judge contradicted herself in her findings which cannot support her orders.
(c) The 1st Respondent not having been eligible to the office of the Ondoma ought to have been disqualified.”
In compliance with the Rules of this court briefs of the parties were filed and exchanged.
At the hearing of the appeal on the 16th of September, 1993, learned counsel Mr. John S. Abah for the respondent told this court that he filed the respondent’s brief on 10th September, 1993 and therefore sought leave of this court to make an oral application to deem the respondent’s brief as duly and properly filed as it was filed out of the time permitted by the rules of this court.
Mr. Charles Obisai the learned counsel for the appellant had no objection to the oral application and it was therefore granted by this court as prayed. Mr. Charles Obisai learned counsel for the appellant submitted that he filed the appellant’s brief by a motion dated 28th April, 1993. The motion was granted and the appellant’s brief was deemed as properly filed on 29th April, 1993.
From the grounds of appeal the appellant’s brief identified and formulated two issues for determination.
They are:-
“1. Whether the trial court had the jurisdiction to entertain and determine this action?
2. Having regard to the circumstances of this case, particularly the pleadings and evidence led in support thereof, can it be said that the 1st plaintiff is in law entitled to the reliefs granted by the trial court”.
On the other hand the respondent’s brief formulated three issues for determination as follows:-
“(a) Whether the trial court had the jurisdiction to entertain and determine this action (Ground 2).
(b) Whether the judgment is as a result of a proper evaluation of the evidence adduced at the trial? (Ground 1).
(c) Whether the trial Court based its decision on matters not pleaded and thereby occasioned a miscarriage of justice? (Grounds, 3, 4 and 5)”.
Mr. Charles Obisai learned counsel for the appellant proffered oral argument to buttress the content of appellant’s brief. He submitted that the appellant adopts the content of his brief and that there are two issues for determination in the brief of the appellant. He said that the claim of the respondent at the court below was made jointly and severally against the 1st and 2nd defendants as per paragraph 22 of the amended statement of claim at page 4 of the record of proceedings. Learned counsel for the appellant contended that the Writ of Summons and the Statement of Claim were not served on the 2nd and 3rd defendants. He also submitted that the present appellant never appeared in court and did not give evidence. The second defendant also did not appear in court and did not give evidence. He however conceded that a representative of their family appeared and gave evidence.
He further conceded that there was no evidence that the second defendant was not aware of the case going on. Learned counsel for the appellant however submitted that the question of service of the writ is a fresh issue in which they sought leave of this court to argue. He referred to their motion filed in this court on 20th September 1989 and granted on 30th November, 1989. He further submitted that on their first issue for determination as it relates to ground 2 of the grounds of appeal, he urged this court to hold that the trial court had no jurisdiction to entertain the suit because there was no service of the writ of summons and the Statement of Claim on the 2nd and 3rd defendants in the suit. Counsel for the appellant told this court that there was one counsel called Mr. Ochulle who allegedly appeared for the 2nd and 3rd defendants. Learned counsel for the appellant submitted that from the records there is nothing to show at the subsequent appearance post 11th November, 1986 that Mr. Ochulle had no instruction to appear for the 2nd and 3rd defendants. There is also no evidence to show that the 2nd and 3rd defendants complained of non-service on them and there was also no evidence showing that Mr. Ochulle had no instructions to appear for the 2nd and 3rd defendants. All these notwithstanding learned counsel for the appellant submitted that on the authority of I.T.T. (Nig.) Ltd. vs. Okpon (1989) 2 NWLR (Pt. 104) 337 at 344 to 345, there must be personal service. He also referred to the case of Ojomo vs. Ijeh (1987) 4 NWLR (Pt 64) 216 at 233. Learned counsel for the appellant therefore urged this court to set aside the whole proceedings before the lower court.
On the second issue for determination in the appellant’s brief learned counsel for the appellant submitted that this case is based on native law and custom and all material facts relied upon have to be pleaded. It is his contention that the evidence does not support the pleading as the matter of the native law and custom of the area was not pleaded. He also submitted that the court failed to consider the evidence of DW1 at page 45 of the record of proceedings on the question of the installation of the 2nd respondent as the Ondoma of Ayele-Iggah. He therefore urged this court to allow the appeal and dismiss the case of the respondent.
Mr. John S. Abah in his reply told this court that he filed the respondent’s brief after the leave of this court which said brief this court deemed as properly filed and served. It is the contention of the learned counsel for the respondent that they have answered all the points raised by the appellant in the respondent’s brief and therefore urged this court to dismiss this appeal.
On issue No. 1 in respect of the first additional ground of appeal it was submitted for the appellant in his brief that leave of this court was obtained on the 30th of November, 1989, to argue this ground which was not raised at the court below. The appellant relies on the proceedings of the court below held on the 11th of November, 1986, which is not contained in the main record of proceedings but attached to the motion of the respondent filed on 27th of February, 1990 and the prayers therein granted on the 1st of March, 1990. According to the appellant’s brief the aforementioned supplementary record of proceedings reveal that on the 11th of November 1986, the plaintiffs at the court below sought leave to join the second and third defendants as additional parties to the case. One Ochulle, Esq., counsel for the only defendant as at that stage volunteered on that day to accept service of the amended Writ of Summons and Statement of Claim. The relevant portion of the record reads:-
“Mr. Ochulle: If the 2nd and 3rd defendants are served through me I am in a position to go on with this case on 14/11/86. If the plaintiffs amend and serve their amended statement of claim on me I shall accept services and amend ours within 24 hours.
Court: The plaintiffs are hereby given 48 hours within which to amend and file their amended statement of claim which will be served on the defendants’ counsel within 48 hours”.
It was submitted for the appellant that there was no application for substituted service on the added second and third defendants and a careful examination of the above extract from the records of the court below shows that the court was in error in making the order it made. Appellant’s brief cited the following cases:-
Dawodu vs. Ologundudu (1986) 4 NWLR (Pt 33) 104; I.T.T. (Nig.) Ltd. vs. Okpon (1989) 2 NWLR (Pt. 104) 337; Ojomo vs. Ijeh (1987) 4 NWLR (Pt. 64) 216; Enabirhires vs. Atambo (1967) NMLR 253; Atanda vs. Ajani (1989) 3 NWLR (Pt. 111) 511; Skenconsult (Nig.) Ltd. vs. Godwin Sekondy Ukeh (1981) 1 SC 26. By virtue of the foregoing, learned counsel for the appellant urged this court to hold that the trial court had no jurisdiction to entertain and determine this suit as it did, and the whole proceedings there by amount to a nullity.
The first issue as formulated by the appellant is the same as the first issue formulated by the respondent. Learned counsel for the respondent submitted in respondent’s brief that issue No.1 as argued in appellant’s brief is based on misunderstanding of the import of the record of the trial court of 11/11/86 as set out by the appellant on page 5 of the Appellant’s brief of argument. The respondent’s counsel submitted in his brief that the portion of the record of the trial court of 11/11/86 complained of by the appellant means that the writs will be delivered to the defendants personally by counsel who undertook to do the work of the bailiff of the court. It was submitted therefore for the respondent that since one Emmanuel Elaigwu and later Mathew Dagdewo from the records of proceedings represented the appellant it should be taken that he was served with the writ and the amended statement of claim. Respondent’s brief referred to the case of Ogbuanyinya vs. Okuda (No.2) (1990) 4 NWLR (Pt. 146) 551.
The first issue for determination in both the appellant’s and the respondent’s briefs is very fundamental as it has to do with the jurisdiction or the competence of the court below to hear the case in the first place. It is trite law that a matter which turns on the competence of the court to hear the case at all can be raised at any stage of the proceedings, even on appeal. See I.T.T. (Nig.) Ltd. vs. Okpon (1989) 2 NWLR (Pt. 103) 337. I must mention here that the citation of Okpon’s case given in the Appellant’s brief is wrong. It is reported in part 103 and not part 104 as stated in Appellant’s brief. Having said that, it seems to me that the basis of the authority of counsel to conduct a case is the instructions given to him by his client. This clearly shows that he has to be briefed and instructed before he can appear for a client. See –Adewunmi v. Plastex Ltd. (1986) 3 NWLR. (Pt 32) 767. In the instant case, after a close look at, and a careful perusal of the proceedings of the court below dated 11th day of November, 1986, which said proceedings is attached to the Motion on Notice filed on 27th February, 1990 by Dr. S.S. Ameh & Co., Applicant’s Solicitors, one cannot honestly say that Mr. Ochulle ….learned counsel who accepted service of the Writ of summons and the amended statement of claim from the court on behalf of the 2nd and 3rd defendants had been briefed by the said defendants about the case and that he had the authority to appear for them when infact they had not been served with the writ of summons and the amended statement of claim as at the time the learned counsel – Mr. Ochulle was appearing before the court below on that day, that is, 11th November, 1986. Again, the order of the court joining the 2nd and 3rd defendants as parties to the suit from the record of proceedings on 11th November, 1986 had not even been served on the 2nd and 3rd defendants when the learned counsel- Mr. Ochulle accepted service of the writ of summons and the amended statement of claim on their behalf. Thus where a counsel purports to act on behalf of a party but has not been instructed to so act, service on him of the relevant court process is no service on the party purportedly represented. See Skenconsult (Nig.) Ltd. vs. Ukey (1981)1 S.C. 6.
The argument of the learned counsel for the respondent in respondent’s brief failed to appreciate the fact that the order of the court below made on 11th November, 1986 was an incompetent and improper order for substituted service and also an incompetent order appointing Mr. Ochulle – learned counsel as special bailiff to serve the writ of summons and the amended statement of claim on the 2nd and 3rd defendants. The order of the court reads:-
“Court: The plaintiffs are hereby given 48 hours within which to amend and file their amended statement of claim which will be served on the defendants’ counsel within 48 hours.
The 1st, 2nd and 3rd defendants are hereby given 7 days within which to file their respective or joint statement of defence”.
In the case of Dawodu v. Ologundudu (1986) 4 NWLR (Pt. 33) 104 it was held inter alia that:-
1. A trial Judge cannot suo motu make an order for substituted service.
2. Where a Judge makes an order of substituted service suo motu, without any application or any affidavit before him such an order is null and void being one made without jurisdiction.
3. An application for substituted service shall
(a) be made by motion and
(b) be supported by an affidavit.
The affidavit must show:-
(i) The efforts which have been made to serve the party entitled to the service personally and satisfy the court that prompt personal service cannot be effected.
(ii) It must also state the mode of substituted or other service proposed.
A counsel who has not been briefed by a party cannot validly accept service of court process on behalf of that party. See I.T.T. vs. Okpon (supra).
Thus it is manifest that the order of the court below made on the 11th of November, 1986 on the service of the writ of summons and the amended statement of claim on the 2nd and 3rd defendants is an affront on the decisions in the cases of Dawodu vs. Ologundudu and I.T.T. vs. Okpon (supra). Having said that, I now make bold to say that it is settled law that where service of process is required and there is no evidence to show that such service was effected on the appropriate party, any judgment emanating from such proceedings is a nullity. See Obimunure vs. Erinosho (1966) 1 All N.L.R. 250; Umenweluaku vs. Ezeana (1972) 5 S.C. 343.
In the instant case, from the record of proceedings aforementioned, the second defendant who has been substituted by the only present appellant was never served with the amended writ of summons and the amended statement of claim.
Their participation, if at all, does not of itself waive the necessity for the service. See Ojomo vs. Ijeh (1987) 4 NWLR (Pt. 64) 216 at 233; Enabirhire vs. Atambo (1967) NWLR 253; Atanda vs. Ajani (1989) 3 NWLR (Pt 111) 511 at 543-6. Thus the failure to effect service where such is required as in the instant case goes to the root of the proper procedure in our system of litigation; the entire proceedings against the unserved party would therefore amount to a nullity. See I.T.T. v. Okpon (supra).
In the result, I hold that the trial court had no jurisdiction to entertain and determine this suit as it did and the whole proceedings thereby amount to a nullity for reasons which I have given above. This finding of mine is sufficient to sustain this appeal and it is therefore not necessary for me to consider other issues for determination raised in the briefs of the Appellant and the Respondent. I would however like to add that if a court of trial lacks the jurisdiction to hear and determine a case, it goes to the root and foundation of the matter as you cannot put something on nothing. The lack of jurisdiction in the instant case is like building a house without a foundation or with a foundation of quick-sand, the whole edifice no doubt will crumble like a pack of cards. Consequently, this appeal succeeds and it is allowed, I set aside the decision and orders of Momoh, J., in her judgment dated 20th July, 1987 in this suit for want of jurisdiction. The appellant is entitled to his costs which I assess at N750.00 against the respondent.
Other Citations: (1993)LCN/0162(CA)
