Martin Schroder And Co. V. Major And Company (Nigeria) Ltd. (1989)
LawGlobal-Hub Lead Judgment Report
On the 28th day of November, 1988 after hearing learned counsel for the appellant in elaboration of the Brief of Arguments in support of the appeal, and without calling upon learned Counsel for the Respondent, the appeal was summarily dismissed and reasons for doing so were reserved to today. I now proceed to give my reasons.
By a specially Endorsed Writ taken out in the Lagos High Court under the provision of Order 3 Rules 4 & 5 of the High Court of Lagos State (Civil Procedure) Rules, the appellant as plaintiff claimed from the Respondent as Defendant as follows:
“STATEMENT OF CLAIM”
“1. The plaintiff drew a Bill of Exchange at Hamburg, Western Germany, dated 8th November, 1975, for DM 24, 703.40 with interest at the rate of 1 % per month payable to the plaintiff on 6th February, 1976, which said Bill the Defendant duly accepted.
- On or about the 6th February, 1976, the plaintiffs agents in Lagos, the Union Bank of Nigeria Limited, Yaba Branch, Lagos, presented the said Bill for payment but it was dishonored by the Defendant.
(i) Principal sum of the Bill of Exchange DM 24,703.40
(ii) Interest at 1 % per month from 6/2/76
to 31/1/82 (2,187) days 18,007.75
Total amount due as at XXX
And the plaintiff claims against the Defendant as acceptor:
- The said sum of DM 42,711.15
- Interest at 1% per month on the said sum of DM 24,703.40 from the 1st day February, 1982, until the judgment debt is fully settled.”
The writ was purported to have been duly served on the Defendant on 23/2/1982 at 2 p.m. at his Address of Business, No. 44 Burma Road, Apapa, by one Victor Akehika, a bailiff of the Lagos High Court as evidenced by the affidavit sworn to by him on 4th June, 1984.
The Defendant did not enter appearance to the writ within the time allowed, hence no defence was delivered. The plaintiff, in accordance with provision of Order 10 Rule 1 of the High Court of Lagos (Civil Procedure) Rules, applied to the Judge in Chambers for leave to sign judgment as per his writ. This was granted and judgment was entered for the plaintiff against the Defendant in the sum of N11,935.15 (the equivalent of DM 42,711.15) plus interest at the rate of 1% per month on the sum of N6,903.09 from 1st day of February, 1982 until the whole debt is liquidated. The plaintiff was also awarded N183.00 costs and N14,209.11 and N200.00 as incidental expenses.
The plaintiff, as judgment creditor, issued a writ of execution dated 21/9/84 which was executed on the Defendant on 26/11/84.
The Judgment debt, the costs and the incidental expenses were fully paid by the Defendant.
The Defendant, by a Motion on Notice dated 30th November, 1984 prayed for the following orders:
“1. an order setting aside the judgment of this honorable Court entered in favour of the plaintiff/Respondent on the 13th of July, 1984 in the sum of N11,935.15 plus interest at the rate of 1 % per month on the sum of N6,903.09 from 1st day of February, 1982 till payment and N183.00 costs;
- an order that the writ of execution dated 21st September, 1984 issued in this matter and executed on the 26th November, 1984, based on the said judgment be set aside.
- that the sum of N14,269.11 and N200.00 incidental expenses paid by the Applicant to D. Ade, Ladega Esq. of Counsel to the Respondent in satisfaction of the said writ of execution be paid back to the Applicant.”
The application was moved and argued on 23/1/85 and ruling on it was re served to 8/2/85.
On the adjourned date, the learned trial Judge (Adeniji, J.) ruled that:
“In the case in question, there was no endorsement to the Writ of Summons as required under Order 6, Rule 16, which is a special provision to deal with service of Writ of Summons etc. Its provisions must be strictly followed; and is not similar to the provision of Order 6, Rule 15 which is of general application.
In the instant case, the applicant therefore was not properly served in LAW with the Writ of Summons. He was neither served with the motion pursuant to which the two orders were made nor was he present or represented by Counsel when the said orders were made.
I am of the view that on all these grounds, the argument of his Counsel must succeed and the orders ought to be set aside.”
He granted all the reliefs sought for by the Defendant in the application.
The plaintiff appealed against the Ruling referred to (supra) to the Court of Appeal, Lagos. In the unanimous judgment of the Court of Appeal delivered on 17/7/85, in which it meticulously dealt with all the issues raised and canvassed, it came to the conclusion that:
“the judgment in default was rightly set aside by the court below and in the circumstance this appeal fails and it hereby dismissed”
The plaintiff have further appealed to this Court.
Henceforth, both the plaintiff and the Defendant will be referred to as the appellant and the Respondent respectively.
Briefs were filed and exchanged by the parties. After hearing Idigbe, learned Counsel for the appellant, and without calling upon learned Counsel for the Respondent, the appeal was summarily dismissed for want of any merit.
Three grounds of appeal were filed and contested. In the Brief of arguments filed by the appellants, the following three issues were formulated for determination:
“1. Whether the only manner of proof of service of a Writ of Summons in Lagos State is by endorsement on the writ itself by the person who served the writ in accordance with Order 6 Rule 16 of the High Court (Civil Procedure) Rules.
- Was the learned Judge correct when he held that notwithstanding that there was an affidavit of service in terms of Order 6 Rule 15(b) before the court, failure to comply with Order 6 Rule 16 was fatal to proof of service.
- Put in other words, is the auxiliary verb “shall” in Order 6 Rule 16 of the High Court of Lagos (Civil Procedure) Rules mandatory or directory in its effect What is the legal consequence of noncompliance with Order 6 Rule 16 Does it vitiate service or does it merely render the writ irregular in some material particular which irregularity can be cured by an affidavit under Order 6 Rule 15(1)(b)”
In his brief of argument learned Counsel for the Respondent drew the attention of this Court that the appellant had, by implication abandoned ground 2 of the grounds of appeal hence that was not reckoned with and considered in the issues formulated by the appellant for determination. He also formulated the following two issues for determination in this appeal:
“1. Whether it is the provision of Order 6 Rule 15 or Order 6 Rule 16 of the Lagos State High Court (Civil Procedure) Rules 1972 that governs the proof of service of a Writ of Summons.
- Does the provision of Order 6 Rule 15 to the effect that the matters contained in an affidavit of service sworn to in accordance therewith be prima facie proof of the fact of service, derogate from or support the mandatory provision of Order 6 Rule 16”
In a nutshell, it was the submission of learned Counsel for the appellant that the Respondent was properly served with the Writ of Summons as evidence by the affidavit of service sworn to that effect by Victor Akalaka, the Court bailiff and that satisfied the requirement of the provision of Order 6 Rule 15 of the High Court of Lagos State (Civil Procedure) Rules. He submitted that since Order 6 Rule 16 does not state the consequence of failure to comply with the provision contained therein, nor does it prescribe the effect for non-compliance, it cannot be construed to deprive an affidavit of service under Rule 15(1)(b) of the same order its statutory force. He contended that whereas Order 6 Rule 15 is mandatory, Rule 16 of the same Order is merely directory. He therefore urged this Court to read Order 6 Rule 15 and Order 6 Rule 16 together when construing the two provisions. He referred to several authorities to support the submission supra, among which are:- Canada Sugar Refining Co. Ltd. v. R. (1898) A.C. 735 at 741 and Maxwell on Interpretation of Statutes (12th Edition) pp. 58-64. He rounded up his arguments by submitting that the appropriate provision for proof of service of the writ in the case in hand is Order 6 Rule 15.
The cardinal point raised in this appeal is whether in serving a specially endorsed writ, an affidavit of service sworn to by the person effecting service is a good substitute for indorsing a copy of the writ served as prescribed under Order 6 Rule 16 of the Rules.
To fully appreciate the effect and functions of the two rules, it is pertinent to reproduce the two provisions:
Rule 15 provided thus:
“15. (1) Where service of any process or document issued by the Court has been effected by the Sheriff, Deputy Sheriff, or by a bailiff or any officer of the Court:
(a) A certificate of service under the hand of the person effecting the service indorsed on true copy of the process or document served, setting out the fact, place, mode and date of service,
(b) an affidavit sworn 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.
(2) Where any process or document is served by a person other than the Sheriff, Deputy Sheriff, or other aforesaid; an affidavit sworn 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 matter stated in such affidavit.
(3) Where service is affected by registered post, a certificate of service under the hand of the officer of the court who effected it, to which shall be annexed the certificate of posting, shall be prima facie proof of the matters therein stated.”
“(4) Forms of certificate and affidavits of service will be found in Appendix B, part 1.”
Whereas Rule 16 makes the following provisions:
“16 The person effecting service of a Writ of Summons, originating summons or other originating process shall indorse forthwith on a copy of the document served, duly certified as prescribed by Rule 2 of Order 5, the fact, place, mode and date of each service effected and shall sign and date each endorsement.”
The provision in Order 6 Rule 15 is clearly of general application. Where service of any process or document is effected under 15(1)(a) certificate of service under 15(1)(a) or alternatively an affidavit of service under 15(1)(b), shall be prima facie proof of the matters stated in the endorsement or affidavit.
Rule 15(2) deals with service of process or documents by persons other than those mentioned in rule 15(1) and in such a situation, an affidavit sworn by the person effecting the service setting out the fact, place, mode and date of service, and describing the process or documents served, shall be prima facie proof of the matter stated in such affidavit.
The contention of learned counsel for the appellant could have been right if the provision of Order 6 Rule 16 is not there. It is a special provision provided to deal with the service of summons mentioned therein and these are:
(a) Writ of summons
(b) Originating summons (c) Other originating process.
These documents, mentioned in (a), (b) and (c) supra, must bear an endorsement as prescribed by Rule 2 of Order 5 of the Rules. A copy of the Writ in this suit bears the following endorsement:
“INDORSEMENT AS TO SERVICE
This writ was served by me at… on the Defendant (herein insert mode of service) on the day of 19…………… Indorsed the…. day of 19……
It is common ground between the parties that the endorsement supra, was not completed by the person effecting the service. It is a Writ of Summons specifically mentioned in Rule 16 of Order 6.
The object of interpreting any statute or instrument is to ascertain the intention of the legislature that had made it or that of the parties that had drawn it. This is done by reading the words used in the particular section of the statute or the document. Where the meaning is not clear by doing so, the other sections of the statute, or the whole of it, shall be read together to ascertain the meaning. This same rule applies to other instruments. The provisions of the two rules are crystal clear; one is general while the other is special. There is no need to resort to reading the two together to ascertain the intention of the promulgators.
As I have earlier said, Rule 16 of Order 6 is a special provision dealing with mode and proof of service of summons mentioned therein and that the Writ of Summons in this suit, though covered by Rule 15 of Order 6, has been mentioned again in Rule 16 of the same Order, thus subjecting it to the provision of the latter.
At the expense of repeating myself, whereas Rule 15 of Order 6 is a general provision by its nature, Rule 16 is a special provision meant to cater for the service and proof thereof of the processes mentioned therein. And where a thing is mentioned in both general and special provisions, the provisions of the special provision shall apply to it. This is the rule of interpretation applicable and the Latin maxim is “generalia specialibus non derogant”, meaning, general things do not derogate from special. The other rule of interpretation meaning the same thing is – “specialia generalibus derogant” – special things derogate from the general one.
There is no need to resort to Rule 15(1) in the present case which apply to all processes, including originating processes. The wording of Rule 16 of Order 6 is mandatory and failure to comply with it is fatal to the service and proof thereof, of any of the processes mentioned therein. The swearing of an affidavit cannot therefore take the place of certificate of service in Rule 16 of Order 6.
Just by way of comment, event the affidavit of service harped upon by the appellant was sworn to by the court bailiff almost after two years from the date the writ was alleged to have been served on the Respondent. This is by itself an abnormality of a serious nature suggestive of something fishy vis-a-vis the service. I am therefore in complete agreement with the reasoning and the conclusions arrived at by the Court of Appeal in its judgment, more particularly where it stated:
“But for the Writ of Summons will not be considered as regular unless the endorsement which is part of the writ itself is completed. It is mandatory on the bailiff or the person serving the writ to complete the indorsement. It is only after this has been done that the affidavit of service in Form No. 1 (supra) which must include item 3 therefore can be sufficient to raise a prima facie evidence of service.
In my view, the completion of the prescribed Form of ” Indorsement as to service” which is part of the writ, is to provide an unmistakable and unequivocal information that the bailiff served the writ in the manner as prescribed. And emphasis is that this prescribed form shall be completed forthwith at the time service was effected.
Unfortunately, in the instant case this prescribed form admittedly was never completed and the reasonable inference to be drawn therefrom is that the writ was not only defective but was never in fact served. It is therefore dangerous to rely on this self-same defective affidavit sworn to by the bailiff, more than two years later, to say that the Defendant was served.
This will amount to naked injustice, as the condition precedent to justify the court entering judgment was not established and the judgment therefore was null and void. See Craig v. Kansser (1943) K.B. 256; where “judgment was set aside on the ground that affidavit of service (as in this case) on the face of it was insufficient and no order should have been completed on it.” Per Lord Green, M.R. at page 263. See also Madukolu & others v. Nkemdilim (1962) 1 A.N.L.R. 587 at page 594; Skenconsult (Nig.) Ltd. v. Godwin Skeondy Ukey (1981) 1 S.C.6.
I also hold that where a party intends to rely on affidavit evidence as prima facie proof of service that affidavit must strictly be in the prescribed Form No.1 which in effect incorporates under item 3 thereof, the provisions of Order 6 Rule 16. It is only when that has been strictly done that the affidavit becomes a prima facie evidence of service thereby putting the onus of rebutting the averments therein contained on the party denying it.
As the affidavit is incurably defective in material particulars as required by the Rules, it cannot support any judgment in default as there is no legal basis to hold that it was established that there was proof of service of the Writ of Summons on the Defendant.”
It was for these reasons that I earlier dismissed the appeal summarily.