Uba Okeke V. Tijani Lawal & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The appellant in this appeal, [as the plaintiff at the High Court], took out a Writ of Summons at the High Court of the Warri Judicial Division against the respondents herein [as defendants], jointly and severally, claiming the sum of Four Million Naira (N4,000,000), being special and general damages for assault and battery. It was alleged that the defendants committed the said tortious acts against the appellant on April 26, 1988. This allegedly occasioned the permanent loss of his eye. It also resulted in persistently severe and continuing excruciating pains and suffering.

Notwithstanding several attempts, the defendants were not served with the processes. All the same, the High Court, (hereinafter, simply, called “the trial Court), proceeded to the hearing of the case. The plaintiff presented his case whereupon the matter was adjourned about seven times. Learned counsel for the plaintiff addressed the Court on October 22, 1992. The matter was then adjourned to November 16, 1992 for judgment.

Curiously, although neither the defendants nor their counsel was in

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Court in any of those days, no hearing notice was ordered to be issued and served on them. Sequel to the judgment of the trial Court in favour of the plaintiff, the defendants approached the Court of Appeal, Benin Division (hereinafter, simply, referred to as the Lower Court’), which by its judgment of March 29, 2006, allowed the defendant’s appeal against the judgment of the trial Court and set it aside. This further appeal to this Court is the expression of the appellant’s grievance against the judgment of the Lower Court. He formulated two issues couched thus:

1. Whether it is not a miscarriage of justice, for the Court of Appeal to have suo motu, raised the issue of non-service to the respondents and non-compliance with the provision of Section 97 of the Sheriff and Civil Processes Act by the appellant and make pronouncement on the issues raised without hearing both the appellant and respondents on the issues so raised
2. Whether indeed there is nothing on record to satisfy the Court that the first to fifth respondents were served with any process of Court as wrongly held by the Court of Appeal

On his part, learned senior counsel

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for the respondent distilled a sole issue which he framed thus:

Whether the Court of Appeal was right in coming to the conclusion that, from the totality of the facts and record before it, there was no service of the Originating processes on the respondents by the appellant as required by law before the commencement of trial

My Lords, upon my intimate perusal of the main complaint of the appellant in his Notice and Grounds of Appeal, I take the humble view that the respondent’s sole issue captures the appellant’s agitation. So, for the avoidance of doubt, the issue which will be considered for the resolution of this appeal is the respondents’ sole issue.

ARGUMENTS ON THE SOLE ISSUE

APPELLANT’S SUBMISSIONS

At the hearing of the appeal on December 11, 2017, learned counsel for the appellant adopted the brief of argument filed on December 17, 2007. He devoted paragraphs 3.1 – 3.73; pages 8-24 of the brief to an obiter dictum in the judgment of the Lower Court.

On the main question of service of the Originating processes on the defendants [now respondents], he conceded that where processes were not served, the Court, at the

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instance of the party affected, is entitled ex debito justitiae to set side the judgment aside, Obimonure v Erinosho and Anor [1996] 1 ANLR 250; Mbadinuju v. Ezuka [1994] 10 SCNJ 109, 128; Skenconsult v. Ukey [1981] 1 SC 6, 26.

He referred to pages 27 – 29 of the record where the learned trial Judge narrated the efforts made at serving the respondents personally with the relevant processes. He opined that the object of all types of service of Court processes is to notify such a party of the case he would to enable him prepare his defence, Daniels v Insight Engineering Co Ltd [2002] FWLR (Pt.99) 113, 1126. He drew attention to page 28 of the record for the Bailiff’s observation.

He averred that the first respondent was aware of the suit. He contended that the Lower Court erred in holding that there was no proof of the service of the order of substituted service on April 27, 1990, citing page 29 of the record. He contended that the respondents did not place enough materials before the Lower Court to determine whether or not the order for substituted service of April 27, 1990 was carried out. Again, he referred to page 29 of the record. In his

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submission, there was a rebuttable presumption of regularity of the Writ and other processes, Agbonran II v. Ayodele [2002] FWLR (Pt.86) 522, 537; George v. UBA [1972] 8 -9 SC 264; Wilson v AG, Bendel State [1985] 1 NWLR (Pt.4) 572; Noibi v. Fikolati [1987] 1 NWLR (Pt.52) 617.

Learned counsel canvassed the view that service by prepaid registered post was envisaged under the Bendel State High Court (Civil Procedure) Rules, U. N. P. Ltd and Anor v. Adebanjo (1969) 1 ANLR 431, 432. He equally referred to the Bailiff’s endorsement at page 28 of the record. He therefore argued that the trial Judge’s order of April 27, 1990 was justified. He urged the Court to hold that there was effective and proper service of the Writ of Summons and other processes on the respondents prior to the commencement of trial.

RESPONDENT’S SUBMISSIONS

On his part, George M. Oguntade, SAN, learned senior counsel for the respondents, adopted the brief filed on April 28, 2009. He pointed out that non-service of a Court process is a fundamental defect that goes to the root of proper procedure in litigation, C.P.M.B. Ltd v Okoye and Anor [2002] 25 WRN 41; Mark v Eke [2004]

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5 NWLR (Pt.865) 54; Sken -Consult v. Ukey (supra).

He pointed out that the address of the respondents, as endorsed on the Writ of Summons, was The Naval Base, Warri. He explained that, due to the inability to effect personal service on the respondents, there was an application of February 19, 1990 for the delivery of the processes to the commanding officer of the NNS Umalokun Naval Base by the pre-paid registered post for onward transmission to the respondents [then, defendants].

He drew attention to another application of February 19, 1990, although filed on March 5, 1990, seeking substituted service of the Originating process on the respondents [then, defendants] by delivery at the Naval Base, Apapa, Lagos, page 6 of the record. He cited the only Ruling of the trial Court of the March 2, 1990, on this issue, at page 8 of the record. In the said ruling, the trial Court granted the appellant [plaintiff, as he then was] leave to serve the said processes on the respondents [defendants’ as they then were] at the Naval Base, Apapa, Lagos. This was notwithstanding that the plaintiff prayed for service on the defendants through the Commanding

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officer of the NNS Umalokun Naval Base, Warri, by pre-paid registered post for onward transmission to the defendants’ now respondents. He pointed out that, as the bailiff could not locate the sixth defendant at the Naval Base in Apapa, Lagos, he did not effect service.

He pointed out that although no further motion for substituted service was filed after the Ruling of March 2, 1990, the trial Court, in its judgment, referred to a further order of April 27, 1990. There was however nothing evidencing either the motion or the Ruling in the record. He referred to 29 of the record. There was, he noted, no affidavit of service or certificate of service. He canvassed the view that service by pre-paid registered post was unknown to the applicable rules of Court.

Turning to the appellants arguments that the Lower Court raised issues suo motu, he contended that the Lower Court’s view was an obiter dictum. He cited page 115 of the record for the Courts resolution of the question before it, that is, the ratio decidendi, to the effect that there was nothing on record to satisfy it that the first to fifth defendants [now, respondents] were

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served. He maintained that an appeal can only lie against the ratio decidendi, UTC Nigeria Ltd v. Pamotei [1989] 2 NWLR (Pt.103) 293; Ogunbiyi v. Ishola [1996] 5 SCNJ 143, 153; Egbe v. Adefarasin [1987] 1 NWLR (sic) 1, 23.

He finally invited the Court to hold that the Lower Court’s view on Section 97 of the Sheriffs and Civil Process Act had no bearing on the question whether the Originating processes were served on the respondents [defendants, as they then were].

RESOLUTION OF THE SOLE ISSUE

The judgment of the Lower Court, from which this appeal arose, could be found at pages 106 – 116 of the record. At page 107, the Lower Court drew attention to a number of applications, two of which were ex parte applications for substituted service. The Court found as follows:

…by the endorsement of the Bailiff’ the deputy Sheriff of the High Court, Ikeja, a Certified True Copy of which is integrated into the records, the said Lagos High Court Official said his attempt to serve the processes on the 21st of March, 1990 was unsuccessful as, according to him, he was told by the first defendant that the sixth defendants was on a Senior Officers

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Course at Jaji in Jos, Plateau State and that if he (bailiff) wanted to serve any process of Court on the defendants they should be served through the Commanding Officer at Warri or through the Chief of Naval Staff, Ministry of Defence (Headquarters), Lagos. Again, I have carefully gone through the records, there is nothing there to show that any service was effected.

[pages 107 – 108; italics supplied for emphasis]

The Court, at page 108 of the record, observed that:

It is noteworthy to observe that on none of the dates when the continued hearing of the case was adjourned that an order was made by the trial Judge that hearing notice be issued on the defendants. It is clear from the records that the defendants were never in Court nor were they represented by any counsel whilst the hearing lasted.

[Italics supplied for emphasis]

The Court then referred to the issues which the parties put forward for its determination thus:

1. Whether there was any service or proper service of the Writ of Summons and other Court processes on the appellants
2. If the answer to issue No. 1 is in the negative whether the judgment of the lower

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High Court appealed against can be sustained

The Court, equally referred to the issue which the appellant herein [as respondent at the Lower Court] framed for the Court’s determination thus:

Whether there was any service or proper service of the Writ of Summons and other Court processes on the appellant prior to the commencement of trial

Having thus referred to the issues for determination, the Lower Court proceeded thus:

I have read the briefs of both parties and it is clear that the central issue for determination in this appeal is whether there was service or proper service of the Writ of Summons and other processes on the appellants before hearing commenced and whether there was any official notification from the Court to the appellants between the date of hearing of the case commenced and when judgment was delivered…

[pages 109 -110 of the record; italics supplied for emphasis]

Upon its perusal of the various orders for substituted service, it pointed out that the “appellants [respondents in the present appeal] who were naval officers with their address for service shown on the Writ of Summons as Naval Base, Warri, could

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not be reached for the purpose of being served personally.” [page 113 of the record].

It then traced the sequence of Ex Parte applications for substituted service of the said processes on the present respondent. With regard to the first application for substituted service, the Court found that “there is nothing on record indicating that the motion ex parte was granted, [page 113 of the record; italics supplied for emphasis]. It drew attention to another application for the same purpose dated February 19, 1990. According to the Court, that application was granted by the learned trial Judge on March 2, 1990. It found, however, that “there is nothing on record showing that the service of the processes was effected…” [page 113 of the record; italics supplied for emphasis].

Its ultimate verdict, on the issue presented for the determination of the appeal before it, was that “there is nothing on record to satisfy the Court that the first – fifth appellants/defendants were ever served with any process of Court, [page 115 of the record; italics supplied for emphasis].

In its concluding observations, the Court made the following remarks –

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remarks which the appellant in this appeal latched on, in his submission that the Lower Court raised an issue suo motu –

From all I have said including the breach of the provisions of the Sheriff and Civil Process Act no Court of law given the factual situation of this case can be said to be satisfied that service of processes of Court was effected on the defendants/appellants; and that is fatal to the suit, Ononye and Anor v Mons. Chukwuma [2005] 17 NWLR (Pt. 953) 90. [Page 116 of the record]

My Lords, from the issues which the parties put forward for the determination of the appeal at the Lower Court, namely:

1. Whether there was any service or proper service of the Writ of Summons and other Court processes on the appellants
2. If the answer to issue No. 1 is in the negative whether the judgment of the lower High Court appealed against can be sustained

I entirely agree with the submission of the learned senior counsel for the respondent that the ratio decidendi of the Lower Court’s judgment was its finding and conclusion at page 115 of the record to wit “there is nothing on record to satisfy the Court that the first to fifth

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appellants/defendants were served with any process of the Court.” That was what it held to be fatal to the suit at the trial Court.

In my humble view, the Lower Court was right. The rationale of all binding authorities is that the failure to serve a Court process, where the service of such a 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. The explanation is simple. 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.

In other words, 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 to the fifth respondents were not served with the originating process, that is, the Writ of Summons, they were entitled ex debito justitiae to have the trial Court’s judgment set aside as a nullity, Mbadinuju v. Ezuka [1994] 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

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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 [1994] 8 NWLR (Pt.364) 5; Mark and Anor v Eke (2004) LPELR -1841 (SC) 25 -26; Skenconsult case (supra).

In effect, the Lower Court was right in its verdict that the trial Court’s judgment, against the first to the fifth respondents, without service, was a judgment given without jurisdiction and is therefore null and void, Odutola v. Inspector Kayode [1994] 2 NWLR (Pt.324) 1, 15. In my humble view, that failure to serve the said originating process, the Writ of 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; Scott-Emuakpor v. Ukavbe [1975] 12 SC 41, 47; [1975] 12 SC (Reprint) 31; Odita v. Okwudinma (1969) 1 All NLR 228; Skenconsult (Nig.) Ltd. v. Ukey [1981] 1 SC 6, 26; [1981] 1 SC (Reprint) 4.

The Lower Court’s position is indeed unanswerable for as has long been recognised and held, failure to serve a process, where service of a process is required, renders any order

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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, 125; Oke v. Aiyedun [1986] 2 NWLR (Pt.23) 548, 99; Okoye and Okoye v. CPMB Ltd (2008) LPELR 1 2505 (SC) 15.

As indicated above, learned counsel for the appellant devoted paragraphs 3.1 – 3.73; pages 8 – 24 of the brief to an obiter dictum in the judgment of the Lower Court. That obiter dictum could be found at page 116 of the record. After its finding and conclusion at page 115 of the record that there “is nothing on record to satisfy the Court that the first to fifth appellants/defendants were ever served with any process of

Court,” it concluded thus:

From all I have said including the breach of the provisions of the Sheriff and Civil Process Act, no Court of law given the factual situation of this case can be said to be satisfied that service or processes of Court was effected on the defendant/appellants; and that is fatal to the suit, Ononye and Anor v. Mons.

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Chukwuma [2005] 17 NWLR (Pt.953) 90.

[page 116 of the record]

I entertain no doubt that the clause, commencing with the preposition “including, namely, including the breach of the provisions of the sheriff and Civil Process-Act… was a mere obiter dictum. Now, as this Court explained in Omisore v Aregbesola and Ors [2015] 15 NWLR (Pt.1482) 205; (2015) LPELR – 24803 (SC) [per Nweze, JSC]:

In Legal Theory, an obiter dictum, in contradistinction to the ratio decidendi of a case, is a Judge’s passing remarks which do not reflect the reasoning of the Court or ground upon which a case is decided, Paton and Sawyer , “Ratio Decidendi and Obiter Dictum in Appellate Courts” (1947) 63 LQR 461, 481; Rupert Cross, ”The Ratio in 20 MLR 124-126; A, G. Karibi-Whyte, “The Tyranny of Judicial Precedents”, in (1990) Vol.3 No.1 Cal. LJ; P. U. Umoh, Precedent in Nigerian Courts (Enugu: Fourth Dimension Publishers Ltd, 1984) 208; Nwana v. FCDA and Ors (2004) LPELR 2102 (SC) 12, F-G; Yusuf v. Egbe [1987] 2 NWLR (Pt.56) 341; Amobi v. Nzegwu [2013] 12 SCNJ 91.

[An appeal] is usually against the ratio decidendi and generally

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not against an obiter, U.T.C. Nigeria Limited v. Pamotei (1989) 2 NWLR (Pt.103) 244; Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387; Ede v. Omeke (1992) 5 NWLR (Pt.242) 428; Dakar v. Dapal [1998] 10 NWLR (Pt.577) 573; Abacha v. Fawehinmi (2000) 6 NWLR (Pt.571) 573.

In the circumstance, I agree with the learned senior counsel for the respondent, George Oguntade, SAN, that it was “clearly improper for the appellant to have appealed against an obiter dictum which has no bearing whatsoever on the final decision of the Court,” [paragraph 3.20; page 10 of the respondent’s brief].

The net effect is that the appellant’s appeal is misconceived and deserves to be dismissed. It cannot be otherwise for 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 [1987] 2 NWLR (pt 58) 539; Utih v. Onoyivwe [1991] 1 NWLR (Pt.166) 206. In other words, jurisdiction is the life-wire of any proceeding in Court and everything done in its absence is,

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simply, a nullity, Jumang Shelim and Anor v. Fwendim Gobang [2009] 12 NWLR (Pt.1156) 435. That fate must therefore befall the judgment of the trial Court. It heard the case and delivered judgment when in the words of the Lower Court, there was “… nothing on record to satisfy the Court that the first to fifth appellants/defendants were ever served with any process of Court,” (page 115 of the record).

This appeal is therefore dismissed for being devoid of merit. I further affirm the consequential orders of the Lower Court. Accordingly, this case is remitted to the trial Court for trial de novo before another judge after proper service has been effected. Appeal dismissed.

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