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?
- 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:
“A court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at, or sending it by post to, the registered office or head office of the company.”
This should be contrasted with the position under the former Companies Act, 1968 which provided that:
“A document may be served on a company by leaving it at or sending it by post to the registered office of the company.”Obviously, the 1990 Act has elongated the former provisions for service of documents on companies. Two crucial distinctions characterise the 1990 Act. First the 1990 Act discriminates between service of a Court process and any other document. Second, the 1990 Act clearly provides for service of a court process to be effected in accordance with the domestic local provisions of the rules of each State High Court.
The domestic or local rule with relation to Kaduna State, as far as it relates to service on companies and corporate bodies, is Order 12 Rule 8 of the Kaduna State High Court Civil Procedure Rules 1987. It states as follows:
“When the suit is against a corporation or a company authorized to sue or be sued in its name or in the name of an officer or trustee, the writ or other document may be served, subject to the enactment establishing such corporation or company or under which it is registered as the case may be, by giving same to any director, secretary or other principal officer or by leaving it at the office of the corporation or company.”
It follows that under the provisions of Rule 8, a corporation or a company can be validly and effectively served with a court process, subject to the 1990 Act which establishes the company or corporation by giving it to any director, secretary or other principal officer or by leaving it at the office of the corporation or company.
(The emphasis is supplied.)
The combined effect of section 78 of the 1990 Act and Order 12 Rule 8 of the High Court of Kaduna State (Civil Procedure) Rules 1987 is that service of a court process, in contradiction to service of any other document, can be effected by leaving it at the office of the corporation or company. The wordings of section 78 of the 1990 Act and Order 12 Rule 8 reproduced above are clear and unambiguous. They must be accorded their literal meaning. “Office of the corporation or company” in this context, in my view, means any office of the corporation or company which need not be restricted to the registered office. To hold otherwise is to introduce words outside the unambiguous provisions of the enacted statutory provisions.
The intendment of section 78 of the 1990 Act, I think, is to ameliorate service of court processes on companies or corporations which hitherto had been cumbersome under the demised 1968 Act, wherein all services of documents, court or otherwise, on those bodies can only be validly affected by delivery or serving same at the registered office of the company or corporation.
In urging us to dismiss the appeal respondent’s counsel, Mr. T. K. Olaniyan, referred us to a decision of this Court, Jos Division, in Otti v. Mobil Oil (Nigeria) Ltd. (1991) 7 NWLR (Pt.206) 700 and Nwabueze v. Obi Okoye (1988) 4 NWLR (Pt.91) 664; (1988) 10 SCNJ 60.
In his submission to the contrary, Mr. J. B. Daudu has submitted that those cases are distinguishable and inapplicable to the instant appeal.
First I will like to take the case of Nwabueze v. Obi Okoye (supra). The Supreme Court decided in this case that leave of court must first be sought and obtained before issuance of writ of summons for service out of jurisdiction of High Court of Anambra. It is perhaps necessary to emphasize that the Supreme Court was dealing with leave to issue the writ out of jurisdiction which is quite distinct from leave to serve the writ outside Anambra State. The question of leave to issue the writ is governed by the domestic rules of court of Anambra State High Court while the question of service out of jurisdiction of Anambra State is governed by the Sheriffs and Civil Process Act. This case is unhelpful having regard to the circumstances of the appeal in hand.
The second case relied on by respondent’s counsel. Otti v. Mobil Oil Nigeria Ltd. (supra), is of great importance because it is a decision of this Court. It goes without saying that this Court is bound by its’ previous decision until set aside. It was decided in this case that failure of a plaintiff to obtain leave of Court to issue and serve a writ of summons on a defendant outside the jurisdiction of the court renders the issuance and service of same void, notwithstanding the appearance and participation of the defendant in the proceedings. The Court expressly followed Nwabueze v. Obi Okoye (supra).
A similar decision was arrived at by the Jos Division of this Court in Derby Pools Ltd. v. Ocheme (1991) 7 NWLR (Pt.203) 232.
One is not however unmindful of another decision of this Court (Benin Division) in Union Beverages Ltd. v. Adamite Co. Ltd. (1990) 7 NWLR (Pt.162) 348 where Uche Omo, J.C.A. (as he then was) at p.354 said:
“…It is clear therefore that for service to be effective on a company under the Companies Decree, 1968 or Order 3 Rule 13 of Ondo State Rules it has to be effected either at its registered office or its head office in Nigeria…”
The learned Justice was construing section 36 of the then Companies Decree of 1968 as well as Order 3 Rule 13 of Ondo State High Court Rules. The decision in Union Beverages Ltd. v. Adamite Co. Ltd. (supra) is of little assistance because we are now invited to construe the provisions of section 78 of the 1990 Act alongside the provisions of Order 12 Rule 8 of Kaduna State High Court Civil Procedure Rule. 1987.
I will also like to recall the decision of this Court, Lagos Division in Dr. Augustine Nsa Ani v. University of Ibadan (1992) 5 NWLR (Pt.240) 217. The question that arose in that case for determination was whether or not the service of the Notice of Motion for mandamus on the respondent, University of Ibadan at its Lagos office which issued out of the High Court of Lagos State was effective service. In this regard, reliance was placed on Order 6 Rule 11 of the Lagos High Court (Civil Procedure Rules, 1972 then currently in force. The provisions of the said Rule are wide and are reproduced for ease hereunder:
“In the absence of any statutory provision regulating service of process on a corporation or registered company, every writ of summons or other documents requiring personal service may be served on a corporation authorised to sue and be sued in the name of an officer or trustee or a registered company by delivering such process to any director, secretary or other principal officer of the corporation or company or by leaving it at the registered office of the corporation or company or its principal place of business within the jurisdiction.”
It seems to me that Order 6 Rule 11 was the forerunner of the Kaduna High Court (Civil Procedure) Rules, Order 2 Rule 8.
In the leading rule I opined as follows:
“I am clearly of opinion that the service of process on the Respondent at its Lagos office where it carries on business was a proper service within the purview of the third alternative mode of service under Order 6 Rule 11 (i.e. leaving the process at its principal place of business within the jurisdiction).
A close look at Order 6 Rule 11 of the Lagos High Court Rules shows some similarity with the Kaduna High Court Order 12 Rule 8. Under the former, service of process on a company or corporation, inter alia, may be effected by leaving the process at its registered office or place of business within the jurisdiction, while under the latter, services of writ or other document may also be effectively done by leaving it at the office of the corporation or company. (The emphasis is mine). What is discernible from the two Rules is that service can be effectively made by serving same at any office of the corporation or company within jurisdiction or at its registered office under the Lagos Rules, whilst under the Kaduna Rules it is sufficient if process is served at the office of that legal entity.
My conclusion from the examination or the above authorities and cognate Rules of courts is that of the import of the combined effect of section 78 of the Companies and Allied Matters Act 1990 and Order 12 Rules 8 of the Kaduna High Court (Civil Procedure) Rules 1987 is that service on a company or corporation of a writ or any other document, for that matter, is effective, if the writ or document is left at any office of the corporation or company within the jurisdiction of the court from which the writ was issued. In the instant case the affidavits in proof of service of the writ of summons and ex-parte order of the Zaria High Court (See pp.2 and 4 record) confirm that these two processes were served on the defendant in its office situate in Zaria, within the jurisdiction of the court.
From the submission of learned respondent’s counsel, both at the lower court and in his brief of argument, it is clear he complained that “the issue of the writ of summons and the service of the same on the respondent out of jurisdiction were incompetent without the prior leave of court. In support of this submission he cited and relied on Nwabueze v. Obi Okoye (supra). The lower Court accepted the submission and made it clear that in reaching its decision that it “relied heavily on the decision of the Supreme Court in Nwabueze v. Obi Okoye (supra) whose facts are almost the same with this case at hand”. The lower Court then set aside and struck out the writ of summons. As had been pointed out earlier, the actual decision in Nwabueze v. Obi Okoye (supra) dealt only with the issue of writ of summons out of jurisdiction without leave of court and not with the question of service of writ of summons out of jurisdiction without leave of court as in the instant cast. To that extent, therefore, I am clearly of opinion that Nwabueze v. Obi Okoye is unhelpful to the circumstances of this case which deal with what constitutes effective service of a company or corporation within the combined provisions of section 78 of the Companies and Allied Matters Act 1990 and Order 12 Rule 8 of the Kaduna High Court (Civil Procedure) Rules 1987.
It is now firmly settled that the service of a writ on a defendant is a condition precedent for the exercise of the jurisdiction of the court. See Madukolu & Ors. v. Nkemdilim (1962) All NLR (Pt.4) 587 at 595: (1962) 2 SCNLR 341 and Sken-consult (Nig.) Ukey (1981) 1 S.C. 6 at 26. In the instant case, as I have already shown, the affidavits of service confirmed that the defendant was duly served with processes of the court.
And for all I have been saying. I hold that the defendant was properly served with the writ of summons within jurisdiction and within the purview of section 78 of the Companies and Allied Matters Act. 1990. There is nothing in section 78 which makes it mandatory either for the appellant to first obtain leave of court before effecting service or to serve the defendant company only at its registered office.
It may be observed that the lower Court lying heavily on Nwabueze v. Obi Okoye (supra) set aside and struck out the writ of summons. I think the court was wrong to have set aside and struck out the writ of summons. There is no invalidity attaching to the issuance of the writ summons but the whole matter has been confounded by the lower court’s failure to separate the two different issues of issuance of a writ and service of the same. If contention of the respondent’s counsel had been successfully made out that the service of the writ of summons was defective, in my view, the proper order would be set to aside the service of the writ but not to set aside the writ itself nor strike it out.
In any event, holding as I do that the writ of summons in the instant case was ex-facie properly served on the respondent within jurisdiction and within the purview of section 78 of the Companies and Allied Matters Act. 1990. I resolve the first issue in favour of the appellant.
The second issue deals with improper endorsement on the writ of summons. Learned respondent’s counsel had submitted, at the lower court on the basis that the writ of summons was issued out of jurisdiction, that there was need for endorsement on the writ as required by section 97 of the Sheriff and Civil Process Act. Cap 407, Laws of the Federation of Nigeria, 1990. Without much ado, the learned trial Judge in his ruling and without due consideration of the submission, accepted that submission of counsel has reiterated the mandatory requirement to comply with the provisions of the said section 97 in line with his submission at the court of trial.
Learned appellant’s counsel, relying on the argument already advanced in respect of the first issue, further submitted that the respondent did not provide the lower court with any evidence upon which it could have concluded that there was no endorsement on the writ as required by the said section 97. Counsel cites Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt.109) 250 at 266.
Strictly, holding as I do under issue No.1, the second issue which contemplates service out of jurisdiction with leave of court cannot be entertained. Endorsement of writ under the provisions of section 97 stipulates as follows:
“97. Every writ of summons for service under this part out of the State or the Capital Territory in which it was issued shall, in addition to any endorsement or notice required by the law of such State or the Capital Territory have endorsed thereon a notice to the following effect (that is to say) ‘This summons (or as the case may be) is to be served out of the… State (or as the case may be)… and in the… State (as the case may be)’.”
It is clear that the provisions of section 97 of Sheriffs and Civil Process Act are couched in mandatory terms. Any service of a writ without the proper endorsement as stipulated under section 97 is not a mere irregularity but is a fundamental defect that renders the writ incompetent. The need to maintain the separateness of issuance of a writ and service of a writ manifestly shows that section 97 of Sheriffs and Civil Process Act does not apply to the issuance of writs, which is unquestionably a matter within the domestic jurisdiction of the State High Court. See Nwabueze v. Obi Okoye (supra).
It is curious that heavy weather was made of non-endorsement of the writ of summons that was allegedly served on the respondent in Lagos, yet nothing was placed before the lower court to establish that the writ was not endorsed as required by section 97. It is elementary but quite fundamental that where there is a challenge to the validity of a writ in terms of the requirement for endorsement under section 97, the offending writ should, of necessity, be placed before the court. This was not done in the instant case because the writ served on the respondent was not produced or tendered at the proceedings for preliminary objection. In spite of this serious omission, respondent’s counsel brazenly stated that the respondent was served with a writ of summons together with the motion on notice at No.24 Campbell Street. Lagos. Submitting to the contrary, learned appellant’s counsel drew the lower court’s attention to the address for service of respondent on the copy of the writ which ex facie read “No. 18 Main Street, Opposite the Main Motor Park, Zaria”. In spite of this obvious fact, the lower court as mentioned earlier on, accepted the submissions of respondent’s counsel hook, line and sinker and consequently “set aside and struck out” the writ of summons.
The circumstances in which a challenge was raised in regard to the validity of the issuance or service of writ in the old cases of Sken-Consult Nig. Ltd. v. Godwin Ukey (supra), Adegoke Motors Ltd. v. Adesanya (supra), Madukola v. Nkemdilim (supra), Ezomo v. Oyakhire (1985) 1 NWLR (Pt.2) 195 and Nwabueze v. Obi Okoye (supra) are different from the situation in the present appeal. In each case when challenge to the validity of the writ was made it was crystal clear that all material facts were placed before the court below. At least, on the face of the writ of
Summons, it was unarguable that the writ was not for service outside jurisdiction and therefore no leave was required.
Before I conclude this judgment I indicated that I would touch on whether or not an affidavit is a requirement when raising a challenge to the writ of summons.
In the instant case, it seems that the respondent raised the preliminary objection simply by a Notice of Preliminary objection under the inderent jurisdiction of the court. It is common ground that the objection was not initiated by a motion on notice. It was simply made by the said Notice of Preliminary objection. Since the preliminary objection was not made by way of motion on notice, it was not supported by an affidavit. For ease of reference, I reproduce the salient portion of the Notice of Preliminary objection which read as follows:
“That this action and motion on notice is incompetent, null and void.
AND TAKE NOTICE that the grounds of the said objection are as follows:-
a) That the 1st and 2nd Defendant were served with writ of summons accompanied with Motion on Notice and the hearing Notice at No.41/45 Broad Street, Lagos and No.24 Campbell Street, Lagos State.
(b) That the plaintiff action and motion as presently constituted and the service effected therein are incurably defective having regard to the provisions of section 97 and 99 of the Sheriffs and Civil Process Act 1959.”
The record bears out that respondent’s counsel made his submission and repeated the facts set out in the above Notice. Thereafter, counsel for the appellant replied and relied on the writ of summons which stated the address at which the respondent was served. After legal arguments by both counsel, the trial Judge upheld the objection. To have upheld the preliminary objection, it was evident that he accepted the ipse dixit on material facts as submitted to him by respondent’s counsel, which facts were grossly in conflict with the facts as set out in the averment on the writ of summons. It is pertinent to note that in his judgment (see p.13 of record, lines 5 to 6) the learned trial Judge had misconceived the “Notice of Preliminary Objection” as a “Motion of Preliminary Objection”. There is no doubt that this was erroneous.
Certainly, there is no hard and fast rule that a preliminary objection need be supported by an affidavit so long as long as enough material is placed before the trial court on which it can judiciously pronounce on the preliminary objection. Where the alleged offending writ of summons ex-facie contains the relevant information against which an objection is being raised, it seems to me that the necessity to additionally rely on affidavit evidence is uncalled for. But where, however, as in this case, there are conflicting assertions as to the place of service of the writ – one party saying it was effected in Lagos while the other said it was in Zaria – the need to place all materials necessary for the determination of the point in controversy becomes crucial. In other words, the purportedly defective writ would have been tendered at the preliminary trial. That would have in turn obliged the other party (the appellant herein) to introduce further materials such as the affidavits of service of the writ of summons and the motion on notice as well as the affidavit of service of the interim order served on the respondent. It is against the background of such materials and submission of counsel that a meaningful decision can be reached on the matter in controversy.
Regrettably, that was not the situation in the instant case. The lower court as it seemingly showed was content to rely particularly on the mere ipse dixit of respondent’s counsel. It must be stressed that mere submission of counsel no matter how alluring can never serve as substitute for the evidence – oral or documentary – necessary to construe the law. It would have been more elegant if the preliminary objection in the peculiar circumstances of this case was commenced by way of motion on notice, which as I have pointed out, would have ensured that all the relevant materials necessary for the adjudication of the objection were properly placed before the court.
In the light of the foregoing, and bearing in mind particularly the resolution of the first issue that the service of writ of summon was within jurisdiction of the lower court, the requirement for endorsement of the said writ in accordance with section 97 of the Sheriffs and Civil Process Act did nor arise. Even if the requirement for endorsement arose, there was no material placed before the lower court nor this Court to demonstrate non-compliance with that requirement.
In sum, I hold that the service of the respondent of court processes in the instant appeal was proper service and there was no need for leave of Court to have been sought in the circumstances before such service. Accordingly, the appeal succeeds and is allowed. I set aside the ruling of the learned trial Judge with N350.00 costs in favour of the appellant.
Other Citations: (1992)LCN/0133(CA)