Stabilini Visinoni Ltd V. Ernest Ejike (2001)

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DAHIRU MUSDAPHER, J.C.A.

By a writ of Summons marked on the undefended list, the plaintiff claimed against the defendant the sum of N1, 019, 000. 00 (One million and Nineteen thousand naira) being money allegedly owed the plaintiff by the defendant on a contract of supply of cement between them. When the suit came up before the trial court on the 10th of February 2000, the defendant was not served, the plaintiff successfully moved an application for substituted service and the matter was adjourned to 9/3/2000. Counsel appeared for the defendant under protest and had prior to the appearance filed all application for an order to discharging the ex-parte order for substituted service. The motion to discharge the ex-parte order could not proceed on that day and was adjourned to the 28/3/2000. The court was also informed that negotiation was going on to settle the matter between the parties. On the 28/3/2000 the learned counsel for the plaintiff was in court and informed the court when the ease was called that the learned counsel for the defendant was in court but had to leave to attend to another court and hath of them agreed to have the matter stood down for 12.00 noon.

When by 12.40, the defendant’s counsel still absent, the learned counsel for the plaintiff successfully applied to the court to strike out the defendant’s application to discharge the order of substituted service. The motion was struck out by the learned trial judge. Thereafter the learned counsel for the plaintiff applied for judgment to be entered in favour of the plaintiff in accordance with the provisions of the undefended procedure rules. The learned trial judge agreed and entered judgment against the defendant in the terms of the plaintiff’s claims. It is against the judgment entered against it, the defendant company hereinafter referred to as the appellant has appealed to this Court. The plaintiff shall hereinafter he referred to as the respondent. The Notice of appeal contains four grounds of appeal and in his brief for the appellant; the learned counsel has formulated and submitted three issues for the determination of the appeal.

The issues are:-

1. Whether the trial court: without first satisfying itself that the appellant had been served with the Originating processes in this matter, had the requisite jurisdiction to proceed with the hearing of the matter and to further enter judgment against the appellant on the 28th March 2000.
2. Whether the trial court was right in law to have proceeded with the hearing of the matter strike out the appellant’s application and to further enter judgment against the appellant on 28th March, 2000 in the entire circumstances of the case
3. Whether the appellant was afforded fair hearing in the proceedings in the lower court in the entire circumstances of the case.”

The respondent on the other hand has formulated the following issues:-

1. Did the trial court first satisfy itself that the appellant had been served with the Originating Processes in this matter before assuming jurisdiction to proceed with this matter as it did?
2. In the circumstances of the case, was the trial court right in law to have proceeded with the hearing with the hearing of the matter strike out the defendant/appellant’s application and to enter judgment against the appellant on the 28th March 2000?
3. Was the defendant/appellant afforded fair hearing in the proceedings in the lower court in the entire circumstances of the case?”

Issue No. One

It is submitted for the appellant, that the appellant was never served with the Originating processes when judgment was entered against it. It is clear from the records that the bailiff was unable to serve the appellant company and the respondent filed an application to serve the appellant by substituted means at No. 14 Galla Street, Abuja, The application for substituted service was granted on 10th of February, 2000 and the matter was adjourned to 9th of March 2000 for report of service. Meanwhile on the 24th day of February, when the appellant became aware of the substituted service, and also when no service was effected on it, the appellant applied to set aside the substituted service order. On the 9th day of March when the matter was called, there was no evidence whatever that the appellant was served with the Writ of summons, the appellant appeared through counsel under protest and the matter was adjourned to the 28/3/2000. The trial court on the 28/3/2000 without satisfying itself that the appellant was served proceeded to enter judgment in the matter. It is submitted that without proof of service, the trial court acted without jurisdiction, when it proceeded to hear the matter and enter judgment against the appellant. Learned counsel referred to SKENCONSOLT (NIG) VS. UKEY (1981) NSCC 1, ODUTOLA VS. KAYODE (1994) 2 NWLR (Pt. 324) 1. It is further submitted that the appearance for counsel for the appellant under protest did not cure the fundamental issue of non service of the processes on the appellant. See RAMONI VS. JINADU (1986) 5 NWLR (Pt. 39) 100. For the respondent, it is submitted that the learned trial judge satisfied himself that the appellant was served before it proceeded to enter judgment in the matter. The appellant filed II memorandum of appearance dated the 24/2/20011 (See page 13 of the records of proceedings) and indeed counsel appeared on the 9/3/2000. See ODUA INVESTMENT COMPANY LTD VS. TALABI (1991) 10 NWLR (pt. 523) 1 at 51. UNITED NIGERIAN PRESS LTD VS. TIMOTHY ADEBANJO (1969) ALL NLR 422. It is further submitted that a close examination of all the facts and the conduct of the appellant clearly indicated that the appellant were properly served with the Originating Processes and the learned trial judge was satisfied in entering judgment against the appellant. Learned counsel cited and relied on ‘THIRD EYE COMMUNICATIONS LTD VS. ISHOLA (1999) 2 NWLR (Pt. 592) 549, CONSORTIUM MC 3632 LOT 4 VS. NEPA (1992) 7 SCNJ 1 at 8. It is finally argued that the SKENCONSOLT and the RAMONI cases supra do not apply to the facts of this case.

Now, it is settled law that a defendant in an action began by Writ of Summons Or other Originating Processes must be served with he processes before the court will have jurisdiction to proceed with the matter. See N.A.A. VB. ORJIAKOR (1998) 6 NWLR (Pt. 553) 265, COMPLETE COMM. LTD VS. ONOH (1998) 5 NNWLR (Pt. 549) 197, BAYERO VS. F.M.B.N. (1998) 2 NWLR (Pt. 530) 509, LEEDO PRESIDENTIAL MOTEL LTD V. B.O.N. LTD (1998) 10 NWLR (Ft. 570) 353.

Where there is no effective service of Court Processes the trial court would have no jurisdiction or competence to deal with the matter in court and if it did so, the whole proceedings shall be a nullity. It is therefore incumbent on court to verify and satisfy itself that a defendant in action is served with the court processes. See ADEWUMIVS. SGB LTD (1998) 6 NWLR (Pt. 552) 154, OKESUJI VS. LAWAL (1991) 1 NWLR (PI. 170) 661.

Now, this matter was called on the 18/1/2000, the respondent herein moved a motion ex-parte for leave of court to enter the matter on the undefended list and to also set a date for hearing. The matter was set for hearing on the 10/2/2000. On 10/2/2000, the respondent moved the court for an order for substituted serve of the Writ of Summons on the appellant, the reasons for failure to effect personal service was that the security guards of the appellant company employed hostile gestures to the bailiff. The application was accordingly granted and the matter was adjourned to 8/3/2000. Before the adjourned aforesaid date, the appellant filed a memorandum of appearance under Order 13 rule 1 of the High Court Civil Procedure Rules. The memorandum of appearance was filed by the appellant on the 24/2/2000. Simultaneously with the memorandum of appearance, the appellant filed an application praying the court to discharge the order of substituted service it had earlier granted to the respondents. The application to discharge the order for substituted service did not say in the affidavit in its support that the ex-parte order for substituted service was not carried out. When the matter was mentioned in Court On the 9/3/2000, learned counsel appeared for the appellant “under protest” and the appellant counsel asked for a short adjournment. What he said to the court is very revealing. He said:

“Negotiation is going on. We ask for a short adjournment. ”

and the matter was adjourned to 28/3/2000. The sum total of these in my view is sufficient to satisfy the trial judge that the appellant was served with the originating processes. The fact that the appellant had entered appearance by the memorandum filed on the 24/2/2000 clearly indicated that the appellant was served with the originating processes and the reasons contained in the affidavit in support of the motion to set aside the order for substituted service notwithstanding. Whatever complaint, the appellant had merely amounts to an irregularity. See ODUA INVESTMENT CASE supra.

Considering the undisputed facts of this case and the conduct of the appellant, I am of the firm view that the learned trial judge was satisfied that the appellant was served with the originating processes at least on 91312000, when Counsel appeared “under protest” and when a memorandum of appearance was filed in the matter. I accordingly resolve the first issue against the appellant.

Issue No. two