Estate Of Late Chief Humphrey I. S. Idisi V. Ecodril Nigeria Limited & Ors (2016)
LAWGLOBAL HUB Lead Judgment Report
CHIMACENTUSNWEZE,J.S.C.
By an Originating Summons, the third and fourth respondents in this appeal (as plaintiffs) commenced an action against the appellant (as first defendant) at the High Court of Delta State, Isiokolo Judicial Division. They claimed the sum of N250, 000, 000.00 (Two Hundred and Fifty Million Naira) “being monies (sic) due to the appellant” from the first and second respondents. For its bearing on the questions canvassed by the parties, I shall set out the ipsissima verba of the main relief as expressed on the said Summons:
An order for the sum of N250, 000, 000. 00 (Two Hundred and Fifty Million) against the first defendant which monies are not being contested by the first defendant but in possession of the second and third defendants; as monies (sic) due and shall fall due to the first defendant from the second and third defendants as facilitator and chairman of the second and third defendants’ companies; being monies/amount/sum owed the plaintiffs by the first defendant for items supplied by the second plaintiff to the first defendant and was fully paid for
and satisfied (sic) by the first plaintiff to the second plaintiff on behalf of the first defendant – the facilitator and chairman of the second and third defendants between the period of 1998 to 1999, on running supply contracts within the jurisdiction of this Court; which the first defendant has refused and/or failed to make good till date to the first plaintiff
[Page 11 of the record, Italics supplied for emphasis]
From the tenor of the italicised subordinate clause in the above relief, it is not in doubt that the claim wasanchored on an alleged contract entered into between the appellant and the third and fourth respondents: acontract from which the sum due, namely, N250, 000, 000.00 (Two Hundred and Fifty Million Naira), eventuated. Put differently, the third and fourth respondents [as plaintiffs] sued on the contract which they entered into with the appellant. In effect, the first and second respondents, not being privy to the said contract, were total strangers to it.
That notwithstanding, the originating processes were not served on them [that is, the first and secondRespondents]. Rather, the bailiff dropped
copies of an alien process in the appellant’s office at Sapele.
Curiously, he [for himself and on behalf of the first and second respondents] engaged the services of one A. K. Osawota who, at the hearing of the matter at the High Court on February 3, 2000, purportedly represented not only the appellant but also the first and second respondents. In what evidently smacked of unprofessional conduct, he did not oppose the application of the plaintiffs’ counsel for judgment. The trial Court, accordingly entered judgment against the appellant and the first and second respondents.
Upon becoming aware of the judgment, the first respondent beseeched the trial Court with an application
for stay of execution of the judgment and for an order to set it aside. The Trinitarian Grounds of the application, which should have called for considerable circumspection on the part of the trial Court, were as irreproachable as they were formidable:
(i) The second respondent is not a juristic person capable of suing or being sued in a Court of law;
(ii) The Originating Summons in this action was not served on the first respondent as
prescribed by law;
(iii) There was a breach of fair hearing as the first respondent was neither heard nor given an opportunity to be heard before the Order of Court dated 3rd February, 2000 was made against it.
[Italics supplied for emphasis]
The trial Court, even in the face of these weighty grounds that raised formidable constitutional questions, chose to dismiss the application, whereupon the applicants approached the Court of Appeal, Benin Division [hereinafter, simply referred to as “the lower Court”] with their complaints. The judgment of the lower Court, which favoured the applicants, prompted the appellant’s appeal to this Court. He framed four issues for the determination of his appeal, viz:
Whether the findings/consideration of facts in the supplementary records by the lower Court after admitting that the records are not in the file, has not occasioned miscarriage of justice, particularly, in the
light of the dismissal of the preliminary objection
Whether the lower Court was right when it held that the first and second respondents were not served the originating summons taking into consideration
the whole circumstances of this case
Whether the learned Justice (sic) of the Court of Appeal were right when they held that the third and fourth respondents did not disclose any cause of action against the first and second respondents
Whether the learned Justices of the Court of Appeal were right by setting aside the judgment and ruling
of the trial Court dated 3/21/000 and 29/5/2000, respectively
Unarguably, against the background of the complaint of the first and second respondents, encompassed in the Grounds of the application to set aside the trial Court’s judgment, only the second issue would suffice in the determination of this appeal namely,
Whether the lower Court was right when it held that the first and second respondents were not served with
the Originating Summons, taking into consideration the whole circumstances of the case
ARGUMENTS ON THE SOLE ISSUE
APPELLANT’S ARGUMENT
When this appeal was heard on February 29, 2016, counsel for the appellant, A. K. Osawota, adopted the Amended Appellant’s brief filed on February 10, 2016. On this issue, he contended
that, upon filing of the originating summons, it was served on the first and second respondents through the appellant who is the alter ego and Chairman of the first and second respondents, citing page 16 of the record.
He pointed out that the address for service indicated in the originating summons for the first and second respondents, including the appellant, was Enerhen Road, Enerhen-Effurun, Delta State, within the jurisdiction of the trial Court. He noted that the first and second respondents were served through the appellant at Sapele, which is within jurisdiction of the High Court of Justice, Delta State.
In his view, the trial Court was right when it held that “from the address endorsed on the Originating Summons, it is clearly stated that all the defendants are living in Warri within the jurisdiction of this Honourable Court.”
He maintained that the first and second respondents admitted the fact that the appellant was their Chairman, citing page 32, paragraph 10 of the record. He submitted that the service of the originating summons on the first and second respondents, through the appellant, was valid and proper,
citing Section 78 of the Companies and Allied Matters Acts Cap 59 LFN 1990 and Order 12 Rules 8 of the High Court Civil Procedures Rules of Bendel State (as applicable to Delta State).
He noted that the parties are ad idem on the fact that the appellant is the facilitator, financier and Chairman of the first and second respondents and consequently a principal officer in the said companies.
He submitted that service of the originating summons on the first and second respondents through the appellant, whether inside or outside their premises is proper service, Kisari Investments Ltd v Laterminal Company Ltd [2001] FWLR (pt. 66) 766, 770. According to him, this must be the position because Order 12 Rule 8 of the High Court Rules does not expressly provide that the Director, Secretary or Principal Officer of the company must be served within the companys premises, or at its office.
He pointed out that the first and second respondents have the onus of proving that there is a contrary mode of service adopted by them with respect to service of the Court processes. He submitted that, in the absence of such proof, reliance on Order
12 Rule 8 is proper and such service is deemed to be personal service on the first and second respondents. He inveighed against the lower Court’s judgment.
Hefurthersubmitted that the appellant, having accepted service for and on behalf of the first andsecond respondents, whatever subsequent act he did in respect of the suit was their act and binding on them, Section 66 (1), CAMA ; Odutola v Ladejobi [2006] 5 SCN) 63, 86.
He contended that the first and second respondents, having entered appearance through counsel to wit, Chief A.K. Osawota, had waived whatever irregularity inherent in the service of the processes. In his submission, where a defendant entered appearance on the strength of an irregular service of an otherwise valid originating summons, it constituted not only a waiver of the irregularity but also a submission to the jurisdiction of the Court,
Kisari Investments Ltd v Laterminal Conpany Ltd (supra) 1771.
He pointed out that the appellant, being a major shareholder in the first and second respondents, and their principal officer, was the alter ego of the Company, the service on him is deemed proper service on
the 1st and 2nd Respondents. More so, upon appearance of A.K. Osawota for them, there was in law a presumption of having been briefed by the parties whom he entered appearance for. He cited Haston Nig Ltd v A. C. B. Plc [2002] as authority on the importance of the position of the Chairman of a Company as regards the affairs of the Company.
He pointed out that it was in pursuance of the appellant’s duty to timeously protect the interest of thefirst and second respondents that he duly briefed A.K. Osawota, Esq. to appear for them. By doing this, he [appellant] had complied with the provisions of the law.
In his view, whether the appellant exercised his power and discretion wrongly cannot constitute aground to appeal and/or set aside the trial Court’s decision. Hefurther, submitted that service on adirector or principal officer of a company whose interest was in conflict with that of a company wasproper service because mere sentiments and domestic policies of a company cannot waive statutoryprovisions, thus National Electoral Commission v Izuogu and Ors [1993] 2 NWLR (Pt 275) (sic) was inapplicable to this appeal.
He urged the Court to discountenance National Electoral Commission v Izuogu and Ors (supra) as being irrelevant and inapplicable to this matter.
He submitted that the non production of three proofs of service indicating the number of defendantssued and served, or whether it was a writ of summons (not originating summons) that was served on the first and second respondents was not fatal but a mere irregularity which did not affect the substance of this matter, Order 2 Rule 1, High Court Civil Procedure Rules of Defunct Bendel State applicable to Delta State.
He pointed out that the purported irregularity was waived by the appearance of A.K. Osawota, Esq. for the appellants without protest and even the first and second respondents never complained that it was a writ of summons but not originating summons that was served on them. He pointed out that it was on record that all the parties to the suit knew the processes that were issued and none of them was misled by the endorsement on the proof of service.
He observed that, the first and second respondents, having entered appearance through counsel and participated in the hearing of
the summons, cannot resort to legal technicalities and engage each other in awhirling of technicalities, technicalities having for long been committed to mother earth by the need to dosubstantial justice, Adewunmi v.A. G. Ekiti State [2002] FWLR (pt 92) 1835.
Counselfurthercontended that two or more proofs of service on the defendants were unnecessary inthis case. In his view, since the appellants acted on their behalf in accepting service, the production of one proof of service was sufficient. He pointed out that this was indicated on the proof of summons which was served on defendants, through the first defendant. According to him, the argument that there must be equal number of proofs of service commensurate with the number of defendants was stretching the law too far and was not all embracing and admits of exception, and this matter was clearly one of them.
He contended that, in view of his position as Chairman of the first and second respondents, he was sufficiently clothed with legal and equitable authority to act for and on their behalf.
He canvassed the view that the principle of audi alterem partem was not a
massive shield to circumvent the due process of the law or shielding a litigant from the consequences of litigation at his whims and caprices. In his view, a litigant must show that he was deliberately by-passed and excluded from proceedings before he can succeed in invoking the principle, Mohammed v Kpelai [2001] FWLR (pt 69) 1404, 1407. He pointed out that the first and second respondents never contested the appellant’s power to appoint counsel for them.
He maintained they did not establish by way of evidence that they were denied fair hearing and the second respondent, having denied its own existence, cannot make a sommersault and argue that it was notafforded fair hearing because a purported non existing person cannot hear nor speak, page 26; pages 2, 5 and 6 of the record,
Kunle Edu, for the third and fourth respondents, did not file any brief of argument,
FIRST AND SECOND RESPONDENTS’ CONTENTION
On his part, counsel for the first and second respondents, Olumide Aju, adopted the Brief of Argument filed on February 2, 2016. In the said brief, he submitted that the lower Court was right when it held that the first and
second respondents were not served with the Originating Process, and therefore all the proceedings against them at the trial Court were vitiated on account of lack of fair hearing.
He advanced the following reasons. In the first place, the first respondent herein is a limited liability company. He cited Section 78 of the Companies and Allied Matters Act Cap 59 Laws of the Federation ofNigeria 1990, which governs service of processes on companies. Heequally, drew attention to Order 12 of the High Court of Bendel State (Civil Procedure) Rules 1988, applicable in Delta State, citing Bello v NBN [1992] 6 NWLR (pt 246) (sic).
He pointed out that the pertinent question for consideration in this issue is whether a company can be served through any of his directors. He posed the question: whether it would be proper service where adirector and his company were sued as defendants in an action, and the relief sought as stated in the Originating Summons indicated a conflict of interest between that company and the director if the company is served through that director. He referred to the principal relief sought as stated in the Originating
Summons(supra).
He observed that the above relief, clearly, showed that the intention of the Plaintiff, at the trial Court, was to sue only the appellant in order to recover the money he owed to the third and fourth respondents. He explained that the appellant was sued in respect of a contract he entered into in his private capacity and for his own intents and purposes. The first and second respondents were joined in the suit at the High Court, presumably, because the Appellant had told the third and fourth respondents that he had some money due from the first and second respondent’s companies wherein he is a director. In his view, thisclearlyshowed that there was a conflict of interest between the appellant and them.
He wondered if, in the above circumstance, whether it was proper service to serve the appellant with the Originating Summonesmeant for the first and second respondents. He noted that the fact that theSummonses were served on the appellant in his personal office at Sapele was strong evidence that he was the main appellant to the Suit at the trial Court.That he made no effort to send the Summonses to the
registered office of the 1st Respondent in Port Harcourt was further evidence of the conflict of interest.
He submitted, on behalf of the first and second respondents, that, in such circumstance as the above, it
would not be proper service on the company to serve the summons on the director, because he had aninterest in the subject matter of the suit which was in conflict with the interest of the company. Accordingto him, under the circumstance, service on the director should not qualify as service on the company since both of them were defendants in the action, NEC v Izuogu and Ors [1993] 2 NWLR (pt 275) 286.
He contended that where service of an originating process was in issue, the Court had to be satisfied thatthere was service by asking for proof of service, citing Order 12 Rule 28 of the High Court of Bendel State Civil Procedure Rules, 1988.
He maintained that where more than one defendant is sued, there must be proof of service on each defendant in such capacity, except there is an order of Court to the contrary. This, in his view, is because the object of all types of service of process is to give notice
to the partyon 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, United Nigena Press v Adebanjo (1969) 1 All NLR 422, 423.
RESOLUTION OF THE RADICAL SOLE ISSUE OF NON-SERVICE
As indicated at the outset of this judgment, when the first and second respondents were apprised of the judgment against them, they repaired to the trial Court with an entreaty to it to set aside its judgmentobtained when the originating process was not served on them. In effect, they interrogated that Court’sjurisdiction and impugned its competence to enter judgment as it did against them, Craig v Kanssen (1943) KB 256, 262; Mbadinuju v. Ezuka [1994] 8 NWLR (pt. 364) 5.
In the main, their complaint was woven around the question of non-service of the Originating Summons.
They, thusraised a fundamental issue which went to the jurisdiction and competence of the Court to enter the judgment, as it did. They set out the Grounds for their application: grounds which, inter alia, complained that:
(iv) The Originating Summons in this action was not served on the first
respondent as prescribed by law;
(v) There was a breach of fair hearing as the first respondent was neither heard nor given an opportunity to be heard before the Order of Court dated 3rd February, 2000 was made against it.
[Italics supplied for emphasis]
On the first question, the lower Court found as follows “[i]n an affidavit of service dated 28/2/2000, a bailiff of the lower Court [that is, the trial Court] swore that on 19th January, 2000 at 2 O’clock, he served ‘upon the defendant at Sapele three copies of Writ of Summons and hearing notice… by delivering the same personally to the defendant at his office at Sapele;
[page 132, italics supplied for emphasis].
At page 145 of the record, the lower Court, further found as follows:
Though there were three defendants, the third respondent and the two appellants, the affidavit of service shows that the process was served on the defendant; It was stated in the affidavit that the three copies of Writ of Summons and Hearing Notice were served on the defendant at his office at Sapele. Granted that the third respondent was described as the facilitator of
Expo Nig Ltd, he was sued in his personal capacity and though sued together with the appellant, his interest in the suit is adverse to that of the appellants. In any case, if it can be said that service on the defendant at his Sapele office means service on the three defendants, including the appellants…, what were served were a Writ of Summons and hearing notice, not an Originating Summons, which was dealt with by the Court below. It is my considered view that, going in (sic) affidavit of service, the appellants were not served directly or indirectly even the Originating Summon. A Wit of Summons and a Hearing Notice cannot be the same they (sic) as Originating Summons.
[Italics supplied for emphasis]
Not done yet, the Lower Court made these crucial and damning findings:
In view of the adverse interests of the third respondent behind their back, a reasonable person watching the proceedings and being aware that what the bailiff sworn (sic) he served on the ‘defendant’ at his office were three copies of a Writ of Summons and hearing notice, not the Originating Summons taken by the Court, that the appellants were not served
either the Originating or the Writ of Summons, that counsel who was foisted on the appellants behind their back by the third respondent who has interest adverse to the appellants’ interests in the matter merely addressed the Court on behalf of the third respondent and said nothing about the appellants, nor did the Court hear from them since counsel who purported to appear for them failed to speak on their behalf, will definitely leave the Court worried and disappointed that justice had not been done to the appellants. The originating process, be it Originating Summons or Writ of Summons, ought to have been served on the appellants. It cannot be said that the appellants were given a fair hearing because the decision against then was based on the Originating Summons which was not served on them or through the third respondent on whom the Writ of Summons and Hearing Notice were served. Furthermore, counsel brief for them, without their knowledge and consent, did not represent them,,.
[page 146, italics supplied for emphasis]
My Lords, pray, permit me to adopt the apposite observation of the erudite Abiru JCA who in Salihu v Gana and
Ors (2014) LPELR-23069 (CA) 34-36, stated that “lawyers who misuse their knowledge of the law and legal procedure to stultify the process of administration of justice are a disappointment and constitute a clog to the progress of the legal profession.”
Such is the nature of this appeal which is nothing but an attempt “to stultify the process of administration of justice” by counsel who is “a pitiable mockery of what a great Lawyer really is,” per Pats-Acholonu JCA (as he then was) in Williams v Akintunde (1995) 3 NWLR (Pt 381) 101, 115.
It cannot be otherwise. Even the face of these impeccable far-reaching findings and unimpeachable conclusion, counsel for the appellant, most incautiously, proceeded to irritate the administration of justice with his appeal: an appeal which, due to its frivolous nature constitutes “a vice rather than a virtue in the administration of justice,” Ogboru and Anor v Uduaghan and Ors (2014) LPELR -23080 (SC).
As shown above, the third and fourth respondents in this appeal (as plaintiffs) commenced an action against the appellant (as first defendant) through an Originating Summons at the High Court of Delta
State, Isiokolo Judicial Division. The claim, as already shown above, was anchored on an alleged contract which they entered into with the appellant; a contract from which the sum due, namely, N250, 000,000.00 (Two Hundred and Fifty Million Naira), eventuated. In effect, the first and second respondents, not being privy to the said contract, were total strangers to it.
That notwithstanding, they were made defendants to the action. Instead of serving them with the Originating Summons, the bailiff, by his own deposition in the affidavit of service, served the appellant with entirely alien processes, namely, “Writ of Summons and hearing notice, not an Originating Summons, which was dealt with by the Court below,” [page 145 of the record].
This unchallenged finding by the lower Court, effectively, negates the disingenuous submissions of the appellant’s counsel that the “originating Summons… were served on the first and second respondents,” [page 7 of the appellants brief]. As the lower Court, rightly held, “a Writ of Summons and a Hearing Notice cannot be the same they (sic) as Originating Summons,” [page
145 of the record].
Even on this score alone, the first and second respondents were relieved of the burden of proving non-service since the bailiff’s ipse dixit settled the conundrum in their favour that they were not served with the Originating Summons. After all, 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, Schroder and Co v Major and Company (Nig.) Ltd [1989] 2 SC (pt. II) 138; 2 NWLR (Pt. 101) 1, 11.
I must pause here to emphasise the point that, where as in the instant case, the service evidenced in the affidavit of service was disputed by the respondents, the trial Court had a duty to satisfy itself that the actual originating process it dealt with, that is, the Originating Summons had, in fact, been served.
Regrettably, the trial Court, woefully, failed to do so.
Thankfully, the Lower Court, rightly, out-distanced the trial Court in this regard. After its painstaking scrutiny of the processes,
it found that the bailiff effected service of an alien process, namely, “Writ of Summons and hearing notice, [and] not [the] Originating Summons, which was dealt with by the Court below,” [page 145 of the record, italics supplied]. Its approach is in tandem with settled authorities, Umaru Launi v. Ezeadua [1983] 6 SC 370; Okesuji v. Lawal [1991] l NWLR (pt. 170) 661, 673.
In effect, the conclusion of the lower Court is irreproachable. It has been settled that the failure to serve process, where the service of process is required such as in this case, is a failure which goes to the roots of the case, Craig v. Kanssen (1943) KB 256 at 262.
On this premise, I find no justification for interfering with the lower Court’s conclusion for it is the service of the process of the Court on the defendant that confers on the Court the competence and the jurisdiction to adjudicate on the matter. Put differently, due service of the process of the Court is a condition precedent to the hearing of the suit. Where, as in this case, as the first and second respondents were not served with the originating process, that is, the Originating Summons, they were
entitled ex debita justitiae to have the trial Court’s judgment set aside as a nullity, Mbadinuju v. Ezuka [l994] 8 NWLR (pt. 364) 5.
It is a nullity because the service of the originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant. Since there was no service on them, the fundamental rule of natural justice audi alteram partem was breached when the trial Court proceeded to enter judgment against them, Mbadinuju v. Ezuka [l994] 8 NWLR (pt.364) 5; Mark and Anor v Eke (2004) LPELR -1841 (SC) 25 -26.
Accordingly, the trial Court’s judgment against the first and second respondents, without service, was a judgment given without jurisdiction and is therefore null and void, Odutola v. Inspector Kayode [l994] 2 NWLR (pt.324) 1, 15. That failure to serve the said originating process, the Originating Summons, was not merely an irregularity. It was a fundamental defect which rendered the proceedings a nullity, Obimonure v. Erinosho [1966] 1 All NLR 250, 252; Scot-Enuakpor v. Ukavbe [975] 12 SC 41, 47; [1975] 12 SC (Reprint) 31; Odita v. Okwudinma (1969) 1 All NLR 228; Skenconsult (Niq.) Ltd. v. Ukey
[1981] 1 SC 6, 26; [1981] 1 SC (Reprint) 4.
That must be so for failure to serve a process, where service of a process is required, renders any order made against the party who should have been served with the process null and void, Craig v. Kanseen (1943) 1 All ER 108, 113; Madukolu and Ors. v. Nkemdilim [1962] 2 SCNLR 341, S.G.B. (Nig.) Ltd. v. Aina [1999] 9 NWLR (pt. 619) 414; U.B.A. Plc. v. Ajileye [1999] 13 NWLR (pt. 633) 116, 12, Oke v. Aiyedun [1986] 2 NWLR (pt. 23) 548, 99l; Okoye and Okoye v CPMB Ltd (2008) LPELR 1
My Lords, before concluding this judgment, permit me to make one final observation. It would seem obvious that the appellant’s counsel read the lower Court’s judgment very perfunctorily, if not with unproductive superficiality. That explains why the import of the said Court’s sublime findings was lost on him. At the risk of wearisome repetition, I am constrained to set out the lower Court’s trenchant finding that the bailiff effected service of an alien process namely, “Writ of Summons and hearing notice, [and] not [the] Originating Summons, which was dealt with by the Court below,” [page 145 of the record, italics
supplied].
That notwithstanding, counsel opted to expend his energy on the applicability of Section 78 of the Companies and Allied Matters Act (supra) on service of processes on limited liability companies. With profound respect, I find against the background of the above finding of the lower Court, that his entire submissions on CAMA are at best, hypothetical; or, at worst, otiose!
In all, the point must be noted here that jurisdiction is of paramount importance in the process of adjudication. As such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing, Attorney General for Trinidad and Tobago v Erichie (1893) Ac 518, 522; Timitimi v Amabebe 14 WACA 374; Mustapha v Governor of Lagos State [l987] 2 NWLR (pt 58) 539; Utih v Onoyivwe [199l] 1 NWLR (pt 166) 206.
Put differently, jurisdiction is the life-wire of any proceeding in Court and everything done in its absence is, simply, a nullity, Jumang Shelim and Anor v. Fwendim Gobang [2009] 7 SCM 165; [2009] 12 NWLR (pt 1156) 435. That is the fate of the Ruling of the trial Court [Akoro, J] as,
rightly, found by the lower Court.
I find no merit in this wantonly, frivolous and utterly, vexatious appeal. I hereby enter an order dismissing it with costs assessed and fixed at N500, 000 (Five Hundred Thousand Naira) only to be paid, personally, by the appellant’s counsel. I hereby affirm the judgment of the lower Court delivered on March 3, 2005. Appeal dismissed
SC.127 /2005