Societe Generale Bank (Nig.) Ltd V John Adebayo Adewunmi (2003)
LAWGLOBAL HUB Lead Judgment Report
KATSINA-ALU, JSC
This appeal by the plaintiff Societe Generale Bank (Nig.)Limited is from a decision of the Court of Appeal Kaduna Division given on 20April 1998.
The plaintiff’s claim against the defendant was for thesum N66,216.01 being the outstanding balance of overdraft facilities and loangranted to the defendant on 24 May 1982. The amount fell due but the defendanthad failed, refused and/or neglected to pay despite repeated demands. Theplaintiff further claimed compound interest at the rate of 28% from 30 January1993 to date of judgment and thereafter interest at the rate of 15% until theentire debt was liquidated. The plaintiff brought this action under theUndefended List pursuant to order 22 rules 1 and 2 of the High Court CivilProcedure Rules of Kaduna State for recovery of the money. These proceedingswere stalled owing to difficulties of service.
On 26 November 1993 the plaintiff brought a motion exparte for the following orders:
“1. An order of court granting the plaintiff/applicantleave to serve the defendant/respondent with the plaintiff writ of summons bysubstituted service by pasting same on the defendant’s Residence and last knowaddress:- viz.
JOHN ADEBAYO ADEWUNMI
KB 29 KUSE ROAD
KABALA EAST
P.O. BOX. 10239
KADUNA
And to deem same as good and proper service on thedefendant.
AND for such further or other orders as this Honourablecourt will deem fit to make in the circumstances.”
On 17 January 1994 the learned trial Judge granted theapplication in the following terms:
“The application is granted as prayed. The Defendant shallbe served with the Writ of Summons by substituted means namely by pasting sameat the Defendant’s residence which is No. 29 Kuse Road Kabala East Kaduna andthe same shall be deeded good and proper service. I adjorn this matter to14/2/94 for mention”
On 14/2/94 the following proceedings took place:
“Parties – absent.”
A.O. Mohammed for the Plaintiff
Mohammed: The Writ of Summons was taken on the undefendedlist. The defendant was duly served. He has not filed any Notice of Intentionto defend. We therefore ask for judgment.
Court: Judgment is hereby entered in favour of thePlaintiff against the Defendant in the sum N66,216 and interest at the rate of28% per annum from 30/1/93 to date and thereafter at 10% interest per annumuntil the judgment sum is liquidated. I award N293.50 as costs against theDefendant.”
In October 1995 leave was obtained to attach and sell theimmovable property of the Defendant to satisfy the judgment debt. Consequentlythe Defendant’s property at 4A Dawaki Road, Kaduna was duly sold.
The Defendant appealed to the Court of Appeal, whichallowed its appeal holding that:
“It follows therefore that I cannot regard exhibits 1,2and 3 as proof that the appellant was served with the writ of summons and othercourt processes to bring the appellant within the jurisdiction of the trialcourt the necessary competence and jurisdiction to enter judgment against theappellant on 14/2/94.”
The plaintiff appealed to this Court upon a number ofgrounds. The Defendant also cross-appealed.
Based on the grounds of appeal filed, the Plaintiffsubmitted three issues for determination which read thus:
“1. Whether it was proper for the Court of Appeal to havesou motu raised the issue of ‘Validity of the service of the Writ of Summons onthe appellant’ contrary to the 2 grounds of appeal alleging non-service of theWrit of Summons and other court processes on the appellant on which issues werejoined and canvassed upon by the parties.
Whether the issue raised suo motu and relied upon indetermining the appeal without hearing from the parties amount to an error inlaw which has occasioned substantial miscarriage of justice.
Whether the conclusion of findings by the Court belowthat there was no credible proof that the appellant was served with the Writ ofSummons and other court processes etc. is sustainable from the facts and evidencebefore it.
For his part, the defendant raised two issues fordetermination. They read:
Whether the lower court was right when it proceeds toevaluate Exhibit 1,2 and 3 including the circumstances in which they wereproduced, when considering the issue, as to whether or not the respondent wasduly served with the writ of summons and hearing notices.
Was the lower court right in not ascribing anycredibility to exhibits “1” “2” and “3” after considering the documents and thecircumstances in which they were produced.”
The Plaintiff argued its issues 1 and 2 together. Thecompliant in both issues is that the Court of Appeal suo motu raised the issueof the validity of the writ of summons and other court processes. It wascontended that the issue raised by the Defendant in his appeal before the Courtof Appeal was one of non-service. In view of this complaint, I think it isimperative to read the relevant ground of appeal and the issues thereon beforethe Court of Appeal. The relevant grounds of appeal are grounds 2 and 3 whichread as follows;
“2 ERROR IN LAW
The learned trial judge erred in law when he enteredjudgment against the appellant on the 14th day of February, 1994 when there was no proofof service of the Writ of Summons or date of the service of the Writ of Summonsand any hearing notice served on the Appellant for that date.
PARTICULARS
(a) The learned trial judge did not verify from theBailiff whether indeed his order for substituted service had been carried out,neither was any affidavit of service filed in proof of same.
(b) The learned trial judge did not verify the date theWrit of Summons was allegedly served on the applicant.
ERROR IN LAW
The learned trial judge erred in law and in gross excessof jurisdiction when he entered judgment against the appellant on the 14th day of February, 1994 when there was no proofof service of the Writ of Summons or date of the service of the Writ of Summons,and any hearing notice served on the appellant for that date:
PARTICULARS
(a) The learned trial judge did not verify from the courtBailiff whether indeed his order for substituted service had been duly carriedout, neither was any affidavit of service filed in proof of same.”
Based on these grounds of appeal the Defendant raised thefollowing issues for determination by the Court of Appeal –
“2. Whether or not failure to serve the Writ of Summons onthe appellant denied the Appellant a fair opportunity of presenting his case atthe lower court and as such was fatal to the proceedings.
Whether the learned trial judge rightly assumedjurisdiction over the Appellant in this action without first ascertaining orsatisfying himself that the Appellant was duly served with the Writ of Summonsbefore he proceed to enter judgment against the Appellant and thereaftergranted leave to the Respondent to attach and sell the Appellant’s immovableproperty to wit No. 4A Dawaki Road, Extension Kaduna on the 9th day of October, 1995.”
As I have already stated, it was contended by thePlaintiff that the issue of Validity of the service of the Writ of Summons andother court processes was never made an issue before the Court of Appeal. Itwas said that what the Defendant raised for consideration by that Court was theissue of non-service which in his view is distinct from the issue of validityof service. I think there is a flaw in this submission. The issue of thevalidity of the service of the Writ of Summons and other court process revolvesaround the issue of whether the Defendant was properly served or not especiallyin the light of documents produced by the Plaintiff in proof of service butwhich documents were not produced at the hearing in the court of trial. In lawan invalid service is no service. Having regard therefore to the grounds ofappeal and the issues raised in the Court of Appeal it can be seen clearly thatthis issue was raised in the court below. As a matter of fact, the case of thedefendant in the Court below was that he was not served. In my view, thecontention that the Court of Appeal suo motu raised the issue is clearlywithout substance. Issues 1 and 2 raised by the Plaintiff together withsubmission thereon go to no issue.
I now turn to the Plaintiff’s third issue. For ease ofreference I reproduce it again. It reads:
“Whether the conclusion or findings by the Court belowthat there was no credible proof that the Appellant was served with the Writ ofSummons and other court processes etc. is sustainable from the facts andevidences before it”.
This, in my view, is the main issue in this appeal. Thisis because it is now trite law that failure to serve process, where service ofprocess is required, is a failure which goes to the root of the case. See CraigV. Kanseen (1943) K.B. 256 at 262. Service of process on a party to aproceeding is fundamental. It is service that confers competence andjurisdiction on the court raised of the matter. Clearly due service of processof court is a condition sine qua non to the hearing of any suit. Therefore ifthere is a failure to serve process where service of process is required, theperson affected by the order but not served with the process is entitled exdebito justitiae to have the order set aside as a nullity. See Mbadinuju V.Ezuka (1994) 8 NWLR (Pt. 364)5.
Now, the question to be resolved in the instant case is:Was the defendant duly served with the Writ of Summons and other processes? Letme put it this way. Do exhibit “1”, “2” and “3” constitute proof of service ofthe processes on the defendant? To examine the record of the trial court on theday judgment was entered for the Plaintiff. Judgment was entered for thePlaintiff on 14 February 1994. The record of the trial court on 14 February1994 read thus:
“Parties – absent.”
A.O. Mohammed for the Plaintiff
Mohammed: The Writ of Summons was taken on the UndefendedList. The Defendant was duly served. He has not filed any notice of intentionto defend. We therefore ask for judgment.
Court: Judgment ishereby entered in favour of the Plaintiff against the Defendant in the sum of N66,216 and interest at the rate of 28% per annum for 30/1/93 to date andthereafter at 10% interest per annum until the judgment sum is liquidated. Iaward N293.50 as costs against the Defendant.”
That is all that transpired on that day. Looking at it,can it be said that there was proof of service of the processes on thedefendant? The Rules of court may be great assistance here. The material Rulefor the purpose of this appeal is Order 12 rules 1 and 28 of the High CourtCivil Procedure Rules of Kaduna State which provide as follows:
“1. Service of Writ of Summons, notices, petitions,pleadings, orders, summonses, warrants and all other proceedings, documents, orwritten communications of which service is required, shall be made by theSheriff or a deputy Sheriff bailiff, officer of the court, or by a personappointed therefore (either especially or generally) by the Court, or by aJudge in Chambers, unless another mode of service is prescribed by these rules,or the Court of Judge in Chambers otherwise directs:
Provided that when a party is represented by a legalpractitioner, service of notices, pleadings, petitions, orders, summonses,warrants and all other proceedings, documents or written communications ofwhich personal service is not required may be made by or on such legalpractitioner or his clerk under his control.
In case where service of any writ or document shallhave been effected by a bailiff or other officer of the Court an affidavitof service sworn to by such bailiff or other officer shall on production,without proof of signature, be prima facie evidence of service.
Under the rules two conditions are prescribed. The firstis that there must be an affidavit of service. The second condition is thatsuch affidavit shall be produced at the trial. Both conditions, I dare say,must be satisfied.
Looking at the record of what transpired on 14 February1994, the day judgment was entered for the Plaintiff, it will be seen clearlythat there was no affidavit of service. I say this because none was produced.The learned trial Judge had a duty to demand to know whether his order forsubstituted service was complied with. He had a further duty to demand to seethe proof which is in the form of an affidavit of service sworn to by thebailiff. Evidently he did not. He took the ipse dixit of the learned counselfor the Plaintiff that “the defendant was duly served” as proof of due service.In the absence of an affidavit of service, it cannot be seriously contended orconcluded that the defendant, knew of the proceedings of the day.
It is to be recognized that the purpose of an affidavit ofservice is to convince the court that the person on whom the processes are tobe served, has been duly served. It must be produced before the learned trialJudge as prima facie evidence of service. It is not to be kept away, where ithas been sworn to, to be produced at a later stage on appeal. This is whathappened in the instant case. Exhibits “1”, “2” and “3” which were not producedat the hearing in the trial court propped up in the Court of Appeal. In myjudgment the Court of Appeal was right in not ascribing any credibility tothese documents.
The result of all that I have said above is that thedefendant was not served with the Writ of Summons and other court processes.The consequence is obvious. Failure to serve process where service of processis required is a fundamental vice. It deprives the trial court of the necessarycompetence and jurisdiction to hear the suit. In other words the conditionprecedent to the exercise of jurisdiction was
my view, had no jurisdiction to hear the case before it on14/2/94, and to enter judgment for the Plaintiff. The proceedings of 14February 1994 were a nullity. In the case of Mbadinuju V. Ezeuka (supra)this Court per Ogundare JSC held that:
“As the record of appeal shows, the two motions forextension of time to file plaintiffs’ statement of claim and plan to dismissthe suit for want of prosecution respectively were fixed for 1st February for hearing. There is nothing onrecord to show whether or not the motions came up that the day and whether theywere adjourned and why. All we now know is that the two motions came before thecourt on 13/2/78. This is confirmed by the court’s record book which the courtbelow called for and examined. The parties and their counsel were absent incourt when the motions were called although the defence counsel subsequentlyput in appearance. There is nothing on record to show whether the partiesand/or their counsel were served with hearing notice for 13/2/78. Neither is thereanything on record to show that the parties were served with hearing noticethat the main suit itself would be put on the court’s list for that day. In theabsence of such proofs it will be difficult to conclude the parties knew of theproceedings for that day. The two motions were struck out because parties wereabsent. Why was the defence counsel, who was present, not called upon to movethe defendants’ motion to dismiss for want of prosecution? Why was it necessaryto strike that one out too? Surely for the trial Judge to strike out the twomotions before without him first ensuring that the parties were served withhearing notices for 13/2/78, his order is a nullity. – See Obimonure V.Erinosho & Anor (1966) All NLR (Reprint) where the dictum of LordGreene had in the latter case said:”
“Those cases appear to me to establish that a person whichcan properly be described as a nullity is entitled ex debito justitiae to haveit set aside. So far as procedure is concerned it seems to me that the court inits inherent jurisdiction can set aside its own order, and that it is not necessary to appeal from it. I say nothing on the question whether or not anappeal
from the order, assuming it gives the defendant the rightto have the order set aside. In my opinion, it is beyond question that failureto serve process where service of process is required goes to the root of ourconceptions of the proper procedure in litigation. Apart from proper ex parteproceedings, the idea that an order can validly be made against a man who hashad no notification of any intention to apply for it has never been adopted inthis country. It cannot be maintained that an order which has been made inthose circumstances is to be traced as mere irregularity and not as somethingwhich is affected by a fundamental vice.”
See also: Scott Emuakpor V. Ukabe (1975) NSCC 435, 438where Bello JSC, (as he then was) observed:
‘Where notice of any proceeding is required, failure tonotify any party is a fundamental omission which entitles the party not servedand against whom any order is made in his absence to have the order set asideon the ground that a condition precedent to the exercise of jurisdiction forthe making of the order has not been fulfilled See Marion Obinonure V. OjumoolaErinosho and Anor. (I966) All NLR 250. As neither the appellant nor hiscounsel was notified of the proceedings of 1st September, 1972, the learned Judge, in ourview ought to have exercised his discretion under order 26 rule 8 of the HighCourt (Civil Procedure) Rules, Cap. 44, Laws of Western Region of Nigeria 1959,which apply in the Mid-Western State, in favour of the appellant.’
Since the judgment of 14 February 1994 is a nullity, itfollows that the subsequent order of the trial court on 9 October 1995 for theattachment and sale of the defendant’s immovable property situate at No. 4ADawaki Road, New Extension Kaduna in satisfaction of the judgment is null andvoid. Both the judgment and the order of the trial court are hereby set aside.
This judgment adequately takes care of the defendant’scross-appeal. I do not deem it necessary to deal with the cross-appeal indetail in view of my decision in the main appeal.
In the result this appeal fails and I dismiss it.Accordingly I affirm the judgment of the Court of Appeal given on 20 April1998.
SC. 65/1999