Dr. N.E. Okoye & Anor V Centre Point Merchant Bank Ltd (2008) LLJR-SC

Dr. N.E. Okoye & Anor V Centre Point Merchant Bank Ltd (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, JSC

This action was commenced at the Onitsha Judicial Division of the High Court of Anambra State on the 6/8/98 when the writ of summons was issued. The Appellants herein were the Plaintiffs. The Respondent herein was the Defendant. The six paragraph claim runs thus:

CLAIM 1. The Plaintiffs are customers of the Defendant merchant bank which carries on merchant banking business in big cities of Nigeria including Onitsha.

2. By confirmation notice given to the Plaintiffs by the Defendant the Defendant is indebted to the Plaintiffs to the tune of N2,385,716.75 (two million three hundred and eighty five thousand seven hundred and sixteen naira seventy five kobo).
3. The Defendant merchant bank has failed to pay interest as agreed or at all.
4. The interest rate which is fixed at the rate of 15% per annum is usually withheld by the Defendant and was only paid twice in recent years.
5. Despite repeated demands by the Plaintiffs for the Defendant to pay the entire sum due and payable to them, the Defendant has failed or neglected to pay same over to the Plaintiffs.
6. Wherefore the Plaintiffs claim as follows:- (a) The sum of N2,385,716.75 being the principal sum due to the Plaintiffs. (b) Interest at the rate of 15% per annum on the sum of N2,385.716.75 from 24th day of March, 1995 until the sum owed is fully liquidated. The claim is supported by a 10 paragraph affidavit deposed to by the 1st Plaintiff/Appellant. The suit was entered in the undefended list. When the matter came up on the 17/12/98, learned counsel for the Plaintiffs informed the court that the Defendant had been served on the 18/11/98 and that there was no notice of intention to defend. Learned counsel therefore asked for judgment. In reaction, the learned trial judge K.K. Keazor J said: “The suit is brought under the undefended list procedure. The Defendant was served on 18/11/98. The matter was set down for hearing today. This was well over the prescribed 5 days before hearing after service. The Defendant did not file notice of intention to defend. There will be judgment for the Plaintiffs as per their claim for: (a) The sum of N2,385,716.75 being the principal sum; and (b) Interest at the rate of 15% per annum in the said sum of N2,385,716.75k until the sum is fully liquidated.” The claim is supported by a 10 paragraph affidavit deposed to by the 1st Plaintiff/Appellant. The suit was entered in the undefended list. When the matter came up on the 17/12/98, learned counsel for the Plaintiffs informed the court that the Defendant had been served on the 18/11/98 and that there was no notice of intention to defend. Learned counsel therefore asked for judgment. In reaction, the learned trial judge K.K. Keazor J said: “The suit is brought under the undefended list procedure. The Defendant was served on 18/11/98. The matter was set down for hearing today. This was well over the prescribed 5 days before hearing after service. The Defendant did not file notice of intention to defend. There will be judgment for the Plaintiffs as per their claim for: (a) The sum of N2,385,716.75 being the principal sum; and (b) Interest at the rate of 15% per annum in the said sum of N2,385,716.75k until the sum is fully liquidated.” Learned counsel for the Plaintiff asked for N2,000.00 costs and the court awarded same. The above represents the judgment of the trial court. The Defendant was aggrieved by the judgment and went on appeal to the court below. By its judgment on the 21/12/2001 the appeal was allowed. The Plaintiffs were aggrieved by the judgment and have come on appeal to this Court. In the Notice of Appeal dated 16/1/2002 and filed on the 4/2/2002 the Appellants raised seven grounds of appeal. PAGE| 4 The parties have, through their counsel, filed and exchanged their briefs of argument. The Appellants’ Brief dated 15/5/2002 and filed on the 12/8/2002 was prepared by Oraegbunam Anieto. He proposed seven issues for determination which he couched as follows:- 1. Whether the Court of Appeal was right in allowing the Defendants-Respondents’ appeal when the said Defendants-Respondents failed to argue their ground 6 of appeal which complained of specific finding that the writ of summons was duly served on the Defendants. 2. Whether the Court of Appeal has the jurisdiction to entertain an issue not contested at the trial High Court and decision reached thereat. 3. Whether the Court of Appeal was right by attacking the contents of affidavit of service in view of- (i) Order 26 Rule 5 of the High Court Rules of Anambra State 1988. (ii) Section 78 of the Companies and Allied Matters Act 1990, and (iii) (Order 7 Rule 4(1) High Court Rules of Anambra State 1988. 4. Whether the Court of Appeal has the right to make a finding on the issue of jurisdiction outside the record placed by the parties before the trial court? 5. Whether the Court of Appeal can over-rule the decision of the Supreme Court as it did in this matter of service of writ of summons on a company? 6. Whether the Court of Appeal can, in fairness to the appellants, ignore the contents of records before it? 7. Whether the judgment of the Court of Appeal is not perverse? PAGE| 5 The Respondent’s Brief dated the 22/10/2002 and filed on the 24/10/2002 was prepared by Chike Onyemenam. In the brief the following five issues for determination were formulated. 1. Did the Respondents fail to formulate and argue the issue of non-service of the Writ of Summons as complained in their ground of appeal? 2. Is the Court of Appeal robbed of jurisdiction to entertain a complaint of non-service of an originating process simply because the issue was not contested and decided at the trial High Court? 3. Was there sufficient proof of service of the Writ of Summons/Claim on the Defendant/Appellant at the court below? 4. Did the Court of Appeal introduce a ground of appeal and formulate an issue suo motu and decide on same without hearing the parties? 5. Did the Court of Appeal overrule its judgment and that of the Supreme Court on any issue thereby making its judgment perverse? On behalf of the Appellants Oraegbunam Anieto proffered arguments the substance of which are as follows: On their 1st issue counsel referred to the finding of the learned trial judge to the effect that the writ of summons was served on the Defendant/Respondent and ground 6 of the grounds of appeal and submitted that since no issue was formulated therefrom, the Court of Appeal had no right to interfere with that finding, especially when the finding was not found to be perverse. For this submission learned counsel relied on David Fabunmi v. Abigail Ade Agbe (1985) 1 NWLR (Part PAGE| 6 2) 299; Anyaduba v. NRTC Ltd (1992) 5 NWLR (Part 243) 535 at 553; Oyibo Iriri & Ors v. Ezeroraye (1991) 2 NWLR (Part 173) 252 at 265. With respect to the Appellants’ second issue, it was the submission that the issue of the non-service of the writ of summons ought to have been first contested at the trial court by an application to set aside the judgment and that it is only after the trial court had decided the issue that the Court of Appeal would be vested with jurisdiction to entertain and determine the issue of service. It was counsel’s submission therefore that the court had no jurisdiction to entertain the appeal. He relied on Order 24 Rule 15 of the High Court Rules of Anambra State 1988, Sections 24(1) and 329 of the Constitution, Order 3 Rule 2(1) of the Court of Appeal Rules Cap 62 Laws of the Federation of Nigeria 1990, Wimpey (Nig) Ltd & Anor v. Alhaji Delani Balogun (1986) 3 NWLR (Part 280 324 at 334; Ben Thomas Hotels Ltd v. Sebi Furniture Ltd (1989) 5 NWLR (Part 123) 523 at 531. As respects the Appellants’ third issue learned counsel referred to Order 26 Rule 5 of the High Court Rules of Anambra State 1988 and submitted that the affidavit of service, being a process made by the court, the Plaintiffs/Appellants cannot, in fairness, be held accountable for lapses therein if any. Counsel relied further on Order 5 Rule 4(1) of the High Court Rules Anambra State 1988 and contended that there was nothing wrong with the affidavit of service since it is stated therein that service was effected on the manager of the Defendant/Respondent bank. He relied once more on Ben Thomas Hotels Ltd v. Sebi Furniture Ltd (supra) at page 539, Nelson v. Ebanga (1998) 8 NWLR (Part 563) 701 at 722, Jammal Steel Structures Ltd v. A.C.B. Ltd (1973) 11 SC 77 at 85; Abraham Oyeniran & Ors v. James Egbetola & Anor (1997) 5 NWLR (Part 504) 122 at 131. It was wrong therefore for the Court of Appeal to insist on a named manager and a named pointer, counsel argued. On the 4th issue it was the submission for the Appellants that there was no complaint about a conflict between Exhibit ‘A’ and ‘B’ and that it was therefore wrong for the court below to suo motu introduce conflict between the two Exhibits and resolving same without calling on the parties to address on it. It was the submission that the procedure occasioned great miscarriage of justice. Reliance was placed on U.B.A. Ltd v. Nwokolo (1995) 6 NWLR (Part 400) 127 at 148-149; Ndiwe v. Okocha (1992) 7 NWLR (Part 129). PAGE| 7 In the Appellants’ 5th issue it is the submission of the counsel that the procedure adopted by the trial court was in compliance with the provisions of Order 24 Rule 9(4) of the High Court Rules of Anambra State 1988. The Appellants’ 6th issue is predicated mainly on the decision in Ben Thomas Hotels Ltd v. Sebi Furniture Ltd (supra) which, counsel said, is apposite to the facts of this case and contended that the court below was bound to follow it. On the 7th issue, learned counsel referred to the reaction of the Defendant/Respondent on the very day of the judgment of the trial court when two of its officials visited the 1st Appellant in his office and urged a finding that it was not only served but that its officials were even in court when judgment was entered against it. The substance of the arguments of Chike Onyemenam for the Respondent are as follows. On the Appellants’ first issue of whether the Respondents as Appellants at the court below formulated any issue arising from the 6th ground of appeal, it was argued that issues 1 and 2 at page 94 of the record properly raised the issue of whether or not there was prima facie proof of service and whether there was evidence of service in law. With respect to the Appellants’ second issue, it was the submission of learned counsel that non-service of originating summons is an issue of jurisdiction which can therefore be raised at any stage of the proceedings. He relied on Oredoyin v. Arowole (1989) 4 NWLR (Part 114) 172 at 187. In response to the Appellant’s argument on their issue three, counsel contended that an affidavit of service merely raises a rebuttable presumption of service and that grounds (i) (ii) (iv) and (vi) were attacks on the purported service to rebut the presumption. It was contended therefore that the Court of Appeal properly examined the affidavit of service and relying on Wimpey (Nig) Ltd v. Balogun (1986) 3 NWLR (Part 28) 394 at 387 rightly found against any service in law. It was his submission that where the evidence is merely affidavit evidence the appellate court is in as vantage a position as the trial court to evaluate it and make findings therefrom and contended that the Court of Appeal adopted the right procedure to arrive at a just decision. PAGE| 8 Counsel relied on Ogunleye v. Oni (1990) 2 BWLR (Part 135) 745 at 785, With respect to the Appellants’ issues 5 and 6 counsel argued that there was nothing the Court of Appeal did which is contrary to the principle on Ben Thomas Hotels Ltd v. Sebi Furniture Ltd (supra). And on the Appellants’ 7th issue, it was argued that the Court of Appeal rightly ignored the extraneous matters sought to be introduced by the Appellants therein in arriving at its decision. In conclusion, counsel urged that the appeal be dismissed. I have considered the address of counsel for the parties. The very fundamental issue in this appeal is that of service and I would start my deliberation with this issue of whether or not the Defendant/Respondent was served. It is settled that service of origination processes such as the Writ of Summons on the Defendant is a fundamental condition precedent to the court’s exercise of its jurisdiction to hear and determine the suit. This is so because any judgment or order given against a defendant without service is a judgment or order given without jurisdiction and is therefore null and void. See Alhaji J.A. Odutola v. Inspector Kayode (1994) 2 NWLR (Part 324) 1 at 15; Thus the failure to serve a process is not merely an irregularity but a fundamental defect which renders the proceedings a nullity. See Obimonure v. Erinosho (1966) 1 ALL N.L.R. 250 at 252; Scot-Emuakpor v. Ukavbe (1975) 12 SC 41 at 47; Odita v. Okwudinma (1969) 1 ALL NLR 228; Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC 6 at 26. In United Nigeria Press Ltd & Anor v. Adebanjo (1969) 6 NSCC 395 at 396 this Court, Per Fatayi-Williams JSC (as he then was) spoke of the object and primary consideration in service of processes. He said: “In our opinion, the object of all types of services of processes whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of and able to resist, if he may, that which is sought against him. Therefore since the primary consideration in an application for substituted service is as to how the matter can be best brought to the attention of the other party concerned, the court must be satisfied that the mode of service proposed would probably, after all practicable means of effecting personal service have proved abortive give him notice of the process concerned.” PAGE| 9 In this case the trial court, apparently relying on the affidavit of service, came to the conclusion that the Defendant/Respondent was duly served and proceeded to enter judgment as claimed. The Defendant/Respondent denied any service. The court is thus put on inquiry as to whether or not the writ of summons was indeed served on the Defendant/Respondent. I have earlier reproduced the judgment of the trial court at page 8 of the record. There is nothing therein to show that the court thoroughly examined the affidavit evidence of service before entering judgment for the Plaintiffs/Appellants. May be it did. But there is nothing to show that it did. This issue of service was the main and fundamental issue at the Court of Appeal. It is settled that an affidavit of service deposed to by the person effecting the service, setting out the fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matters stated in the endorsement or affidavit. See Martin Schroder & Co. v. Major & Company (Nig) Ltd (1989) 2 NWLR (Part 101)1 at 11. Where however the service evidenced in the affidavit of service is disputed by the Defendant, as in this case, the Court of Appeal has a duty to satisfy itself that there had in fact been service on the Defendant. See Alhaji Umaru Launi v. Ezeadua (1983) 6SC 370; Madam Alice Okesuji v. fatai Alabi Lawal (1991) 1 NWLR (Part 170) 661 at 673. It is clear from the records of proceedings in this case that the Court of Appeal was not only conscious of but also committed to its duty of ensuring that the Defendant/Respondent against which there was the subsisting judgment was in fact served with the originating processes. At page 126 of the record the Court per M.D. Muhammad JCA assessed the affidavit of service as follows:- “The affidavit of service in the instant case shows that the “Manager” of the Appellant was served after he had been pointed to the bailiff by one other. The affidavit of service neither contained the name of this “Manager” that was served nor the name of the pointer who led to him. That was not all The bailiffs dispatch book belied the contents of the bailiffs affidavit of service. The book indicates that the process was received and signed for by a third party for and on behalf of the Manager. PAGE| 10 Here again neither the name nor designation of the recipient was indicated. There was so much that was vague about this service that it would be unfair to allow a decision built on it to survive.” These pungent remarks, no doubt, shows the Court’s critical examination of the affidavit evidence of service. Learned counsel for the Appellants never contested these findings but submitted that since the said documents were not prepared by the Appellants, they cannot be held accountable for lapses contained therein. I do not, with respect, agree with that contention of learned counsel. The affidavit of service, though not prepared by the Appellants, is the very document paraded by them to prove that the Defendant/Respondent was duly served with the originating processes before the judgment was entered against it. And the Dispatch Book was prepared by the Appellants in proof of their assertion that the Defendant/Respondent was served. Therefore if these documents contain materials which tend to impeach the credibility of their claim that the Defendant/Respondent was served, they cannot be heard to say that they are, after all, not the makers of the documents. The inconsistencies identified by the court below render the case of the Plaintiffs/Appellants unreliable and thus create doubts as to whether the Defendant/Respondent was served. After highlighting the inconsistencies in the affidavit evidence of the Plaintiffs/Appellants the court below at the same page 126 said: “With these facts the trial judge ought to have entertained doubts as to whether the Appellant had in fact been served to entitle the court to assume jurisdiction. Where any doubt as to whether or not service was or was not properly effected exists, a judgment obtained by a party in the absence of the other such as in the instant case, has to be set aside to ensure that both parties are heard before a decision. See Wimpey Ltd v. Balogun (supra).” I agree entirely with the above reasoning and conclusion. In the affidavit in verification of facts deposed to by Mr. Wilson Abia, the Onitsha branch manager of the Defendant/Respondent, he made very crucial assertions in denial of the purported service. In paragraphs 2-7 he deposed: PAGE| 11 2. I have read the affidavit of service sworn to by one Uyanwanne G. the Chief Bailiff of the Onitsha High Court wherein he falsely claimed to have served the writ of summons in this suit on the manager by delivering same to the manager after one unknown person identified me. A copy of same is exhibited and marked as exhibit “A”. 3. The aforesaid deposition by the said Bailiff is false as neither myself nor any staff of the Appellants bank was served with any writ of summons in this suit. 4. It would be foolhardy and stupid of me after being served with a claim against my bank involving over N2,000,000.00 (Two Million Naira) not to inform my head-office and/or brief our bank’s solicitor, Chike Onyemenam Esq. who is based here in Onitsha. 5. The aforesaid Bailiff never came into the Appellant’s bank to serve any process whatsoever in relation to this case and we were consequently not aware of its pendency until a staff of the Onitsha High Court came and informed me that judgment has been delivered against our bank. 6. I verily believe that the affidavit of service was deposed to in bad faith so as to deprive us of an opportunity of being heard. 7. I challenge the aforesaid Bailiff to produce his service book and show the Honourable court where myself or any of the bank staff signed as he claims to have delivered same to me personally. There was no reaction from the Chief Bailiff to the above assertions. They remain essentially unchallenged. In view of the foregoing averments which remain practically unchallenged and the internal cracks in the affidavit evidence of service, the finding of the court below about there being no proper proof of service of the processes on the Defendant/Respondent cannot be faulted. The result is that I resolve this issue of service in favour of the Defendant/Respondent.

Having resolved this issue of whether or not there was proper service in favour of the Respondent and against the Appellants, it serves no useful purpose to deliberate on the remaining issues. The resolution of this issue of service determines the appeal and a deliberation on the other issues would be nothing more than a mere academic exercise. Since there was no proof of service of the originating processes on the Defendant/Respondent the judgment of the learned trial judge K.K. Keazor J on the 1712/98 was without jurisdiction and is therefore null and void. In the event, the appeal is dismissed and the judgment of the court below of the 20/12/2001 be and is hereby affirmed. The judgment of the trial court of the 17/12/98 is set aside. The suit itself be and is hereby remitted back to the Onitsha Division of the High Court of Anambra State for trial by another judge. I make no orders as to costs. NIKI TOBI, JSC: Banker customer relationship existed between the parties. The respondent was the Banker. The appellants were the customers. The appellants had a fixed deposit of N2,385,716.75 with the respondent. The respondent could not pay any interest on the deposit. The appellants therefore demanded to withdraw their fixed deposit with the respondent. The respondent could not refund the money. The appellants sued. They sued on the undefended list. The respondent did not file any intention to defend the action. Judgment was entered in favour of the appellants by the learned trial Judge. An appeal to the Court of Appeal was allowed on the ground that the issues involved in the matter were substantive. M. D. Muhammad, JCA said at page 129 and 130 of the Record: “The undefended list procedure provides for non-contentious matters. In the instant case all cannot be said to be certain from the writ taken out by Respondents and the affidavit in support of the writ to automatically entitle the claimant to judgment under rules of court. If the trial court had evaluated the evidence provided by the affidavit in support of the Respondents’ claim it would have detected the serious issue of credibility which the two annextures thereto have brought to bear on the case sought to be made out. In that regard, the trial court would have realized how unsafe it was to act on the averments in the supporting affidavit as unchallenged and uncontradicted as they have been. See Orhue v. Edo (1996) NWLR (Pt. 473) 475.” Dissatisfied, the appellants have come to this Court. Briefs were filed and exchanged. Appellants formulated seven issues. Respondent formulated five issues. Although both Briefs put together have twelve issues, the crux of this appeal is whether there was service of the writ of summons. Most of the issues formulated are exaggerations of this issue and appurtenant to it. It is elementary law that a defendant must be served the writ of summons before he can enter appearance. That is the only notice to him that a case is filed against him and that he should make an appearance in the court specified on the date and time stated therein. Where the defendant is not served with the writ of summons, the subsequent trial of the case is a nullity. The proceedings however ably conducted cannot be saved in favour of the plaintiff. As a matter of law and in the eyes of the law, there are no proceedings in the case at all. Where a defendant is not served with the writ of summons, the court is deprived of jurisdiction to hear the case. In order to vest the court with jurisdiction, the defendant must be duly served with the writ of summons. In other words, service of writ of summons is a pre-condition to the court assuming jurisdiction. It is a forerunner to jurisdiction. Service of writ of summons can be undertaken in two ways, personal or substituted service. As the name implies, personal service is service on the defendant in person or as a person. Substituted service is service made in substitution of the defendant. It is service undertaken on another person other than the defendant. The law provides for the way corporate or artificial person is served. If the law provides for a particular way or method, non compliance in that particular way or method will nullify the service ab initio As a corporate or artificial person does not exist as a human being, the law provides for service on a representative of the body, be he the Chairman or the Secretary or another person as the case may be. PAGE| 14 Because a person cannot be condemned unheard, the importance of service as the first action in the judicial process cannot be over-emphasised. Service of a process is an exact thing which must be undertaken with all the exactitude or exactness in the judicial process. Because of its exactness, the plaintiff has the burden to prove exactly that the writ of summons was served on the defendant. Proof of service is by affidavit. The affidavit must depose very clearly that the defendant was served with the writ of summons. This can be proved by the signature of the defendant himself. Where a defendant refuses to accept personal service, the law allows the bailiff to drop the writ to the face and presence of the defendant. The first issue raised by the appellants is that the respondent failed to formulate an issue on Ground 6 in the Notice of Appeal in the Court of Appeal. Ground 6 reads: “The Learned trial Judge erred by holding that the Defendant/Appellant had been served with the writ of summons and then went ahead to enter judgment in favour of the plaintiffs/Respondents in the absence of the Defendant/Appellant.” In the appellants amended brief in the Court of Appeal, the following two issues are relevant for the purpose of Issue No.l formulated by the appellants in this court. They read: “(i) Whether there was prima facie proof of personal service of the writ of summons/claims on the Defendant/Appellant’s Manager (ii) If the answer to (i) is in the affirmative, whether having regard to the bailiffs affidavit of service and his dispatch book there was proper service according to the law and on the facts on the Defendant/Appellant.” Both Ground 6 and the above two issues deal with service of the writ. And so, I do not agree with the submission of counsel for the appellants that no issue was formulated on Ground 6. That is not correct. On the contrary, I entirely agree with learned counsel for the respondent that Issues 1 and 2 at page 94 of the Record, are manifestly clear that the appellants at the court raised the issue as to whether or not there was prima facie proof of service. PAGE| 15 Learned counsel for the appellants submitted that as the trial court has the exclusive competence to make a finding of fact in the case before it and the court rightly and clearly made findings of fact of service of the writ of summons, it is not the duty of the Court of Appeal to deal with error in the decision or judgment of the trial court. He cited Fubunmi v. Abigail (1985) 1 NWLR (Pt.2) 299; Iriri v. Eseroraye (1991) 2 NWLR (Pt.173) 252; Ogbu v. Ani 91994) 7 NWLR (Pt.355) 128; Otti v. Otti (1992) 7 NWLR (Pt.252) 187 and Nwokoro v. Onuma (1990) 3 NWLR (Pt. 36) 33 I entirely agree with the submission of learned counsel that the Court of Appeal has the right to interfere with the findings of the trial court where they are perverse. It is in this respect, I am unable to go along with his earlier submission that the High court has the exclusive competence to make findings of fact in a case before it. I should add a caveat and it is that the exclusivity of the competence of the trial court to make findings of fact is subject to appellate review by an appellate court, such as the Court of Appeal. The proceedings of the High Court are at page 8 of the Records. Let me copy them here for ease of reference. “Mr Anieto: The matter is brought under the undefended list procedure. There is an Affidavit. Refers Order 24 Rule 9(4). The Defendant was served on 18/11/98. Asks for judgment. There is no notice of intention to defend. Court: The suit is brought under the undefended list procedure. Defendant was served on 18/11/98. The matter was set down for hearing today. This was well over the prescribed 5 days before hearing after service. The defendant did not file notice of intention to defend. There will be judgment for the Plaintiffs as per their claim for: (a) The sum of N2,385,716.75 being the principal sum and PAGE| 16 (b) Interest at the rate of 15% per annum in the said sum of N2,385,716.75 from 24/3/95 until the sum is fully liquidated. Mr. Anieto: Our out of pocket expenses is N53 7. We ask for N2000 costs. Court: There will be N2000 costs to Plaintiffs.” I do not see where the learned trial Judge in the words of counsel for the appellants “rightly and clearly made a finding of fact of service of writ of summons” He correctly made reference to the same page 8. I do not see any pronouncement by the learned trial Judge on the service of the writ of summons. The learned trial Judge did not deal with the issue of service and so counsel, with respect, was wrong in arguing that the court “rightly and clearly made a finding of fact of service of writ of summons” Issue No. 1 fails. Learned counsel for the appellants submitted that the Court of Appeal was wrong in entertaining the issue of jurisdiction which was not contested at the High Court. Learned counsel for the respondent submitted that non-service of originating process to a defendant, being an issue challenging jurisdiction of the court can be raised at any stage of the proceedings, even at the Supreme Court, for the first time. Learned counsel for the respondent is right. Learned counsel for the appellants is wrong. Non service is a product of jurisdiction and issue of jurisdiction being the life blood of adjudication can be raised at any time in the proceedings even on appeal at the Supreme Court. This is because where a court has no jurisdiction, the proceedings are a nullity, ab initio. Issue of jurisdiction can be raised suo motu by the court. As long as the parties are given the opportunity to react to the issue, they cannot fault the procedure of the court raising the issue suo motu. Issue No.2 fails. On Issue No.3, learned counsel for the appellants submitted that the Court of Appeal was wrong in attacking the contents of the affidavit of service.

SC. 176/2002