Felix Dickson V. Chief Marcus Okoi & Ors (2002)

LawGlobal-Hub Lead Judgment Report

DENNIS ONYEJIFE EDOZIE, J.C.A. 

This is an appeal against the ruling of the Calabar High Court delivered on 5/10/98 by Uke, J. in which he declined to set aside the judgment of the same court in the same suit No. C/120/96 delivered on 16/12/97 by Onnoghen, J. as he then was. The facts which gave rise to the suit are not relevant for the determination of this appeal to warrant a comprehensive statement thereof. Suffice it is to say that the case arose from the offence of obtaining money by false pretences allegedly committed against the plaintiff herein 1st respondent by the 1st, 2nd and 3rd defendants and designated in this appeal as 2nd, 3rd respondents and appellant respectively. For clarity and avoidance of confusion, the parties are henceforth to be referred by their descriptions in the court below. The three defendants acting in concert through a letter purportedly written by the plaintiff’s brother resident in the United States of America falsely represented to the plaintiff that his said brother had directed him to clear from the Calabar Sea-port certain goods for a cold room shipped to the plaintiff who was shown fake clearing documents and a fake 40ft container in respect of the goods. Believing in the representation, the plaintiff paid over to the defendants at the latter’s request a total sum of N1,025,000.00 (One million and twenty five thousand naira) only. It is to recover this colossal amount after discovering the falsity of the representation and reporting the matter to the police that the plaintiff on 5th March, 1996 commenced the suit against the three defendants from whom he claimed jointly and severally the sum of N1,025,000.00 being money received by the defendants from the plaintiff for a consideration that never passed together with interest on the said amount from 29/6/95 till judgment.

In the prosecution of the action, the plaintiff by an ex-parte application sought and was granted leave of the court for the writ of summons, statement of claim and all subsequent processes in the case to be served on the 2nd and 3rd defendants through the 1st defendant. It would appear that upon being so served, the 1st defendant by his counsel entered a memorandum of appearance and filed a motion seeking to set aside the order for substituted service which motion however was struck out on 30/6/96 for want of diligent prosecution by the then Chief Judge E. E. Arikpo from whose court the matter was subsequently transferred to Onnoghen, J. (as he then was) who on 21/4/97 ordered that hearing notices be issued to the defendants. That order was carried out. As the plaintiff had become aware of 3rd defendant’s address, he in addition made arrangement for the 3rd defendant to be served personally. However, when the bailiff went to serve the 3rd defendant, the latter declined service.

On 22/10/97 and 13/11/97, the court in the absence of the defendants took the evidence of the plaintiff and in a considered judgment delivered on 16/12/97 entered judgment in his favour for, inter alia, the amount claimed with interest at the rate of 15%, thereon from 19/6/95 till judgment and N10,000 costs.

The plaintiff executed the judgment on the property of the 3rd defendant and in consequence the 3rd defendant by a motion on notice filed on 13/5/98 prayed the court for:-

“1. An order suspending execution of the judgment of this court dated 16/12/97.

2. An order extending time for the 3rd defendant/applicant to apply to set aside the judgment of this court.
3. An order setting aside the judgment of this honourable court for being a nullity.
4. An order releasing the vehicles attached pursuance (sic) to the judgment of this court to the 3rd defendant/applicant.”

The motion was supported by a 14 paragraph affidavit sworn to by the 3rd defendant. In opposition thereto, the plaintiff deposed to a counter-affidavit of 15 paragraphs. Between 25th and 28th of July, 1998 the court took arguments from counsel and in a reserved ruling delivered on 5th October, 1998 Uke, J. dismissed the application with N1,000 costs in favour of the plaintiff.

It is against that ruling that the 3rd defendant has lodged the instant appeal predicated on only one original ground of appeal to which were subsequently added three additional grounds of appeal vide the amended notice of appeal filed on 8/5/2001 with the leave of court.

The 3rd defendant and the plaintiff filed and exchanged briefs of argument while the 1st and 2nd defendants remained unconcerned in the matter. In the 3rd defendant’s brief of argument, the following three issues were set down for the determination of this court, viz:-

“1. Whether the service of a copy of originating processes on the 3rd respondent (1st defendant) and he refusing to accept service on behalf of the appellant (3rd defendant) inspite of an order of court would amount to service of the originating process on the appellant? (3rd defendant).

2. Whether the non-service of the hearing notice ordered by the court on the appellant (3rd defendant) did rob the trial court of jurisdiction to hear and determine the suit as it relates to the appellant? (3rd defendant).
3. Whether the 3rd respondent (1st defendant) who was jailed and serving prison sentence could have been an agent for the appellant? (3rd defendant).”

For the plaintiff, the issues for consideration were identified to be as follows:-

“1. Whether the learned trial Judge was correct in holding that there was service of the processes on the defendants – appellant, 2nd and 3rd respondents?

2. Whether the learned trial Judge was correct in dismissing the appellant’s (3rd defendant’s) application?”

With respect to the 3rd defendant’s/appellant’s first issue for determination, it was pointed out in the appellant’s brief, that pursuant to the order for substituted service granted by the court below, the processes in the suit at the court below were taken for service by the bailiff who served only one copy of the writ of summons and statement of claim on the 1st defendant without the order of court directing that the service on the 2nd and 3rd defendants be made through him. It was contained that the 1st defendant having refused to collect the processes on behalf of the 2nd and 3rd defendants as evidenced in the record of proceedings in magistrate’s court where the 1st defendant was charged and tried for offences connected with the service, the service so effected cannot by any stretch of the imagination be said to be in compliance with the order of the court.

It was submitted that the non-service of originating summons on the opposing party robs the court of the jurisdiction to adjudicate over the matter the subject-matter of that originating summons. The case of N.B.N. Ltd. v. Guthrie (Nig.) Ltd. (1993) 3 NWLR (Pt.284) 643 at 659 – 660 was cited and relied upon.

In respect of the 3rd defendant’s/appellant’s second issue regarding the service or non-service of the hearing notices on the defendants as ordered by the lower court on 21/4/97, it was contended that the affidavit of service sworn to by the bailiff showed that the service of the hearing notice was effected only on the 1st defendant’s counsel who had in his memorandum of appearance indicated that he was appearing for the 1st defendant only. It was therefore submitted that in the circumstances that services was not tantamount to service on the 2nd and 3rd defendants to justify the statement of the clerk of court as recorded on 16/7/97 to the effect that all the defendants had been served, a statement which the court below relied in the substantive suit in proceeding to take the evidence of the plaintiff. It was therefore submitted that hearing notice was not duly served on the 3rd defendant/appellant and therefore the subsequent trial predicated on it was a nullity. Counsel prayed in aid the following authorities:-

Agena v. Katseen (1998) 3 NWLR (Pt.543) 560; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.364) 535.

The appellant’s 3rd issue for determination poses the question whether the 1st defendant who was jailed and serving a prison sentence could have been an agent for the 3rd defendant/appellant.

In this connection, it was stated that the 1st defendant upon the complaint of the plaintiff emanating from the service of the processes in this matter at the lower court was convicted and sentenced in 1996 to two years imprisonment with hard labour without an option of a fine. It was therefore submitted that the 1st defendant who was serving a jail term could not legally be served court processes for persons outside the prison wall such as the 3rd defendant.

In the brief of argument for the plaintiff/respondent the first issue raised the question whether the learned trial Judge was correct in holding that there was service of processes on the defendants.

The contention of the plaintiff on this question is in the affirmative.

It was further contended that Order 12 rule 5 of the High Court (Civil Procedure) Rules of Cross River State Edit No.7 of 1987, made provision for substituted service and in accordance with the order of the court below for substituted service, the 1st defendant was actually served both the writ of summons and the statement of claim. It was contended that the attempt by the appellant to disprove service by relying on the magistrate’s court proceedings was futile and mischievous because the said magistrate’s court proceedings were not before the court below. It was canvassed that by virtue of section 131 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria 1990, the court is bound by the record of the lower court and cannot add to nor subtract therefrom vide the case of Bello v. State (1994) 5 NWLR (Pt.343) 177. It was suggested that the only way the said magistrate’s court proceedings could have been taken into account was by leave to lead additional evidence but this it was argued would have been prejudicial to the plaintiff. It was submitted that it would be wrong for this court to countenance or examine the proceedings in question, same being outside the proceeding that led to the ruling the subject matter of this appeal relying on the case of Ibrahim Ohida v. Military Administrator, Kogi State (2000) 12 NWLR (Pt.680) 24 C.A. (2000) FWLR (Pt.12) p.2107 at 2111. On the issue of service of hearing notice, it was canvassed that the service of hearing notice on the 1st defendant through his counsel was sufficient service but that the subsequent personal service of the hearing notice on the 3rd defendant which he refused to accept was proper service as the bailiff did what he was expected to do by dropping the process at his feet. In respect of the plaintiff’s second issue for determination regarding the correctness of the ruling of the court below in dismissing the 3rd defendant’s application, attention was drawn to the judgment in the substantive case where Onnoghen, J. (as he then was) found as a fact that the processes under consideration had been duly served. It was argued that since there is no appeal against that finding, that finding cannot be overturned in the instant appeal. It was therefore submitted that the court below was right in declining to set aside the judgment in the substantive case. The following cases were called in aid:-

Iwuji v. Federal Commission for Establishment (1985) 1 NWLR (Pt.3) 497; Nwobi v. Amukam (2000) FWLR (Pt. 18) 323 at 329.

The issue in controversy in this appeal falls within a narrow compass and is circumscribed on the propriety of the services of the relevant court processes on the defendants before the court below embarked on the adjudication of the substantive case. The service of the writ of summons is very fundamental as no suit can be determined by the court unless the summons in relation to that suit has been served on the defendant. Obimonure v. Erinosho & Anor (1966) 1 All NLR 250. Service of the writ of summons on the defendant on the institution of any proceeding other than application brought ex-parte is a condition precedent to the exercise of jurisdiction by the court from whose registry the writ of summons was issued. Any failure to effect such service on the defendant is a fundamental defect in the competence of the court to try the proceedings. N.B.N. Ltd. Guthrie (Nig.) Ltd. (1993) 3 NWLR (Pt.284) 643 at 659. The court has no jurisdiction over a person who has not been served unless he voluntarily submits to jurisdiction.

The object of service is to give notice of the suit to the defendant for whatever he may desire to do in the case, service is effected personally to the person to who it is addressed except where substituted service is ordered by the court as provided by the relevant rules of court. Where, in accordance with the rules of court, an order for substituted service is made and service is made and service is effected in compliance with such order, proof that the defendant actually had knowledge of the process is unnecessary.

In the proceedings in the substantive suit, it is abundantly clear that the plaintiff by an ex-parte motion prayed the trial court for leave to serve the writ of summons, statement of claim and all subsequent processes on the 2nd and 3rd defendants through the 1st defendant by delivering same to the 1st defendant at the address stated in the motion paper. That motion was granted in terms of the prayer and an order drawn up, to wit:-

“It is hereby ordered that the service of the writ and any subsequent processes be served on the 2nd and 3rd defendants through the 1st defendant whose address of service is on the writ of summons …”

According to the affidavit of service deposed to by the bailiff, Clement Bassey Bagun, service was effected on 15th March, 1996 in terms of that order. The main plank on which the 3rd defendant/appellant seeks to impugn the service is that the drawn up order was not annexed to the processes on being served. No doubt, it is desirable that the drawn up order be attached to and served together with the summons but that is not a requirement of the law as there is no such stipulation in Order 12 rule 5 of the Cross River State High Court (Civil Procedure) Rules which makes provision for substituted services. Since it is not a requirement of law but merely a matter of practice to serve the originating processes together with the order for substituted service, the contention of the 3rd defendant/appellant is misconceived.

Another ground relied upon by the appellant in seeking to overturn the ruling of the court below is that the service of the hearing notice as ordered was effected on counsel to the 1st defendant who entered appearance only on behalf of that defendants and as such the service did not cover the 2nd and 3rd defendants. In my humble view, the service of the hearing notice in the circumstances is substantially consistent with the order for substituted service made by the trial court. At any rate, it is clear from the record that in addition to that manner of service, attempts were made by the bailiff of the court to effect personal service of the hearing notice on the 3rd defendant who on becoming aware of the nature and purport of the notice refused to collect and acknowledge receipt of same in consequence of which the bailiff dropped the hearing notice near him. A writ or hearing notice served in that manner on a defendant who refuses to accept service is deemed to be properly and personally served. It does not lie in the mouth of such a defendant to later complain of non-service. A party who deliberately refuses to avail himself the opportunity of being served a court process cannot be heard to complain of non service or opportunity to be heard: Shahimi v. Akinola (1993) 5 NWLR (Pt.294) 434.

In a desperate attempt to disprove service of the relevant court processes on him the 3rd defendant/appellant relied on the incarceration of the 1st defendant through whom he the 3rd defendant/appellant was ordered to be served by substituted means.

To this end, a further and better affidavit sworn by an officer in the chambers of his counsel was filed in the registry of the court below on 7/12/98 exhibiting the judgment of the chief magistrate’s court dated 13th May, 1996. As learned counsel to the plaintiff/respondent rightly pointed out in his brief, that judgment was not properly before the court below. It is manifest that the judgment of Onnoghen, J. (as he then was) in the substantive case was delivered on 16/12/97; the ruling dismissing the application to set aside the judgment was given by Uke, J. on 5/10/98; the notice of appeal challenging the ruling was filed on 7/10/98. It was after that it dawned on counsel to the 3rd defendant/appellant to file his further and better affidavit on 7/12/98 exhibiting the said judgment of the Chief Magistrate’s Court.

What a mischievous thing to do? It is unethical for counsel to slip in or smuggle into the record of proceedings document which never formed part of the proceedings with a view to deliberately deceive the court.

It is trite law that in the compilation of the record of appeal, materials not before the lower court must be excluded from that record, vide Abcos (Nig.) Ltd. v. Kango Wolf (K.W.P.T.) Ltd. (1987) 4 NWLR (Pt.67) 894 at 895.

Learned counsel to the 3rd defendant/appellant undertook to compile the record of appeal and in doing so he included in the main record the judgment of the Chief Magistrate’s Court in question while omitting the minutes of the proceedings of the lower court which was later incorporated through a supplementary record of appeal. It seems to me obvious that even if the judgment of the Chief Magistrate’s Court in question were to be taken as properly forming part of the record of this appeal which is not conceded it weakens rather than strengthens the case for the 3rd defendant/appellant. This is because that judgment in which the 1st defendant was sentenced to imprisonment for a total of 2 years was delivered on 13/5/96 whereas the originating processes in the substantive case were served on him on 15/3/96 indicating that service was effected before his incarceration.

Before concluding this judgments, I would like to observe that the application predicating the ruling appealed from is misconceived. Admittedly, a Judge is competent to set aside his own judgment in a number of circumstances including:

(a) when the judgment is a complete nullity;

(b) when it is obtained as a result of a mistake of one of the parties;

(c) when it is obtained through fraud on the part of one of the parties; and

(d) when it is clear from the record that the Judge was led to believe that the judgment was a consent judgment, when in fact it was not.

A Judge therefore has the jurisdiction to set aside his judgment which is a nullity: Ojiako & Ors. v. Ogueze & Ors. (1962) 1 All NLR 58 (1962) 1 SCNLR 112; Ekerete v. Eke (1925) 6 NLR 118; Siliyun &

Ors. v. Alhaji Dan Mashi & Ors. (1975) 1 NMLR 55.

In the application the ruling of which is now on appeal one of the prayers sought, was to set aside the judgment on the substantive case for being a nullity by reason of the fact that the 3rd defendant/appellant was not served the relevant court processes. That issue was duly addressed in the judgment by Onnoghen, J. (as he then was) who at p. 16 of the record observed:-

“The plaintiff did file his statement of claim along with the writ of summons which were duly served on the defendant who filed no defence to the action.”

In the face of that solid finding categorically stating that the defendants were duly served with the relevant court processes, can the defendants approach the same court or another Judge with coordinate jurisdiction with the Judge that made the finding to set aside that finding? I think not. Once a final judgment is entered in a suit, the trial Judge becomes functus offcio with respect to that suit and except for making of ancillary orders, e.g., stay of execution, instalmental payments of judgment debt, he ceases to be seised of that matter. Commissioner of Lands, Mid-Western State v. Edo-Osagie & Ors. (1973) 6 SC 155. Neither the court of trial nor a court with co-ordinate jurisdiction can re-open the case for any purpose whatsoever even on application of all the parties. It seems to me, therefore, that in the present case the court presided over by Onnoghen, J. (as he then was) or that presided over by Uke, J. lacked the jurisdiction to review the finding made in the substantive case to the effect that the defendants had been duly served with the relevant court processes which in substance is the objective of the application the ruling of which is the subject matter of this appeal. The only option open to the 3rd defendant/appellant would have been to lodge an appeal directly to this court to seek the reversal of the finding in question. The court below was right in refusing to grant the application.

In summary, I will answer the three questions posed for determination by the 3rd defendant/appellant thus:-

The service of the copy of the originating summons effected on the 1st defendant in accordance with the order for substituted service was good in law and is deemed to be good service on the 3rd defendant/appellant.

The hearing notices ordered to be served on the defendant were duly served as required by law to invest the court below with jurisdiction to entertain the suit before it. Finally, the incarceration of the 1st defendant was not an issue before the court below, however, the imprisonment did not affect the order of substituted service. I am in complete agreement with learned counsel to the plaintiff/respondent that the learned trial Judge was correct in holding that there was service of the processes on the defendant.

The conclusion I have reached is that the appeal lacks substance.

It is accordingly dismissed with costs assessed and fixed at N5,000.00 against the 3rd defendant/appellant in favour of the plaintiff/respondent.

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Other Citations: (2002)LCN/1227(CA)