Alhaji Shehu Bello V. National Bank of (Nigeria) Limited (1992)

LawGlobal-Hub Lead Judgment Report

OKAY ACHIKE, J.C.A. 

By his writ of summons, the plaintiff claimed three declaratory and one injunctive reliefs from the defendant. The plaintiff sought and obtained an interim injunction against the defendant restraining it from disposing of the plaintiff’s property mortgaged to it pending the determination of the substantive motion on notice already filed in Court which the lower court had fixed for hearing on 21/5/91. The defendant was duly served the writ of summons and a motion on notice earlier mentioned. When finally the court was about to commence hearing the motion on 14/8/91, Mr. J. B. Daudu, learned plaintiff’s counsel successfully prayed the court to strike out the name of the 2nd defendant. Thereafter, learned counsel for the defendant, T. K. Olaniyan, Esq. indicated that he had a preliminary objection to raise and it touched on the jurisdiction of the court. The import of the objection raised two issues, namely. (a) question of obtaining leave for issuance of writ out of jurisdiction and (b) endorsement of the writ. After consideration of the objection, the learned trial

Judge in a reserved ruling, upheld the preliminary objection and struck out the writ of summons.

Dissatisfied, the plaintiff, herein appellant, filed one ground of appeal to this Court. With leave of this Court, a departure from the Rules of the Court having been granted, the appeal is being heard on a bundle of papers, hereinafter referred to as the record of appeal.

The appellant identified issues for determination while the defendant, herein respondent, postulated three issues. Those of the appellant encompass the issues formulated by the respondent and they are preferred for the disposition of the appeal.

They are:

“1. Whether there was any basis, by way of evidence upon which the trial High Court could have reached the conclusion that the writ of summons in this matter was one meant for service outside the jurisdiction of the Kaduna State High Court and as such leave was required to have been first obtained before it was issued and served?

11. Whether there was any necessity of the writ of summons to have been endorsed in accordance with the requirements of sections 97 and 99 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990 and if answered in the affirmative whether noncompliance would attract an order striking out the writ.”

The first issue raises the question where leave was required for the writ of summons to issue on 8/4/91, allegedly outside jurisdiction.

The certified copy of the writ issued and served on the respondent may be found at pages 2 and 3 of the record. At page 2 of the record the address of service on the respondent (as defendant) states as follows:

“No.18 Main Street, Opposite Motor Park, Zaria”. The affidavit of service on p.4 shows that the respondent was served at Zaria. It is however interesting to observe that in his submission at the lower court respondent’s counsel had stated categorically that the respondent was served the writ of summons and motion on notice at No.24 Campbell Road, Lagos. The source of this information was not disclosed. It is firmly established that affidavit of service is prima facie proof of service in relation to how and where service was effected.This perhaps, explains why appellant’s counsel had urged that it was necessary for the respondent’s preliminary objection to have been accompanied by an affidavit setting out the relevant facts on which the respondent relied on as the basis of his objection, Ordinarily, there is no mandatory requirement under the Rules of the High Court for a preliminary objection to be accompanied by an affidavit. The position would be quite different where the party raising the objection – the respondent herein – had proceeded by way of motion on notice as was the case in Nwabueze v. Obi-Okoye (1988) 4 NWLR (Pt.91) 664. In the instant case, the writ of summons, the affidavit of service of the writ of summons of the said writ as well as the affidavit of service of the ex-pate order on the respondents, I think are sufficient material on which the Court could decide on whether or not there was in law a proper service of the respondent within the provisions of the applicable law. Accordingly, I hold that an affidavit is not a prerequisite to the raising of a preliminary objection unless the objection takes the form of a motion on notice.

As I had earlier said, there was sufficient material before the trial Court to decide on the preliminary objection against the background of the relevant and applicable law. Rather than confine himself to the available facts, respondent’s counsel, in his submission, went beyond the bounds of the available material when he said:

“We therefore submit that the defendant in this matter is a Limited Liability Company, the service on it must be personal. The company ought to have been served under section 78 of the Companies and Allied Matters Decree No.1 of 1990. The rules of court are subject to statutory provisions – See Order 12 Rule 8 of the High Court Civil Procedure Rules 1987… The registered Office here is at Lagos. Our submission is that service must be at the registered office of the company and nowhere else will suffice. This has been taken care of by Order 12 Rule 8. The service effected either in Zaria or Lagos was not properly effected.”

It was glaring that respondent’s counsel in his submission was supplementing the available material before the court when he boldly submitted that “the registered office here (referring to the respondent) is at Lagos.” There was no basis for this assertion nor can the court take judicial notice of same. The lower court appeared to have been overwhelmed by this line of submission in spite of the fact that it is firmly established that no matter how brilliant a counsel’s submission is, it is no substitute for credible evidence upon which the court is obliged to rely in reaching a decision. In my judgment, there was no basis whatsoever for the assertion that the registered office of the appellant was in Lagos. A court of law does not act on fantasies or speculations. The role of the trial Court is to decide a case before it on credible and cogent evidence placed before it, and definitely should not allow itself to be overwhelmed by counsel’s submission based on imagined facts and evidence. See State v. Aibangbee (1988) 3 NWLR (Pt.84) 548.

Section 78 of the Companies and Allied Matters Act. 1990. Cap. 59. LFN 1990 provides for services of documents on companies as follows: