United Bank for Africa Plc V. Ayomene Oladele Odimayo & Anor (2004)
LawGlobal-Hub Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.C.A.
The appellant herein took out a writ of summons at the Ikeja Division of the Lagos State High Court, seeking to enforce the judgment of the United States District Court of Southern New York in suit No. 93/CIV/3998 Wk dated 29th July, 1994, against the respondents then being defendants.
The writ of summons and statement were endorsed for service on the respondents at Grail land, Iju, Agege in Lagos State.
Unable to serve the respondents the processes, the appellant applied for and secured the lower court’s order for substituted service by advertising the writ and statement of claim in the Daily Times Newspaper a daily in circulation within the court’s jurisdiction. The affidavit in support of the application for the order to serve the writ of summons and statement of claim by substituted means averred to the fact that respondents could not be located either at their resident at Grail land or office at No. 8A Ogundana Street, Off Allen Avenue, Ikeja, Lagos, for the court’s processes to be served on them personally.
The writ of summons and statement of claim were eventually advertised in the Daily Times Newspaper pursuant to the leave acquired from the lower court. Messrs George Etomi & Partners, counsel to the respondents were also served the same processes a fact which was acknowledged by the said counsel. The same firm of solicitors also entered unconditional appearance for the respondent’s vide a memorandum of appearance dated 21st November, 1994.
The appellant on being served with respondents counsel memorandum of appearance applied for leave of the court for final judgment to be entered against the respondents.
By a notice of motion dated and filed on 4th January, 1995, the respondents sought the court’s order striking out the writ of summons taken out against them by the appellant. The application was on the grounds:-
“(1) That the defendants at the time of the issuance of the writ of summons were not resident in Nigeria and leave of court ought to have been obtained to issue and serve the writ of summons out of the jurisdiction of the court.
(2) That no leave of court was obtained to issue and serve the writ of summons and statement of claim outside the jurisdiction of court.”
The respondents filed another motion on notice on 30th October, 1995, for:-
“(1) An order striking out the writ of summons dated 4th day of October, 1994.
(2) An order setting aside the order of substituted service, statement of claim in this suit dated 31st day of October, 1994.
(3) An order setting aside the substituted service of the writ of summons and statement of claim in this suit on counsel to the defendants/appellant George Etomi & Partners.”
The application was made on the grounds:
“(a) That the writ of summons in the suit was for service within the jurisdiction of the court.
(b) That the defendants at the time of the issuance of the writs were not resident in Nigeria.
(c) That leave of court had not been obtained to issue the writ of summons for service out of the jurisdiction of the court on the defendants/applicants.
(d) That the writ of summons in the suit has purportedly been served by substituted and alternative means on the defendants who reside outside the jurisdiction did not comply with the mandatory requirements of the Sheriffs and Civil Process Act; and
(e) That the purported service of a copy of each of the writ of summons and statement of claim in this suit on counsel to the defendants/applicants was done by counsel to the plaintiffs/respondents by mail.”
Respondents applied for the withdrawal of their motion on notice dated 4th January, 1995, on 21st March, 1996. The said application was accordingly struck out while the motion of the respondents dated 30th October, 1995 was adjourned to 21st May, 1996, when it was argued.
The court below in a considered ruling dated 21st May, 1996, found the issues calling for determination in the application as follows:
“(1) whether the writ was validly issued; and
(2) whether the order for substituted service was validly made; and
(3) whether the defendants/applicants are entitled to the reliefs sought.”
The court found that since the respondents were not resident in Nigeria as at 4th October, 1994, when the writ of summons was issued, and same was taken out for service within the jurisdiction of the court the writ was invalid and so all other processes thereafter. Respondents were obliged all the reliefs they prayed except that the writ was allowed to persist.
The appellant being dissatisfied has appealed against the decision with leave of the court. The appeal is founded on the thirteen grounds of appeal on its notice.
Parties have filed and exchanged briefs of argument wherein issues for the determination of the appeal were formulated.
The only issue contained in the appellant’s brief reads:
“Whether the learned trial Judge was right in setting aside:
(i) The order of substituted service dated October 1994
(ii) The substituted service of the writ of summons and statement of claim advertised in the Daily Times Newspaper of 15th day of November, 1994; and
(iii) The service of the writ of summons and statement of claim on George Etomi and Partners in the manner he did.
The respondent’s brief also has a lone issue for determination as follows:
“Whether the respondents were resident in Nigeria at the time of issuance and service of the writ of summons and statement of claim on them.”
The appellant is, in the absence of any cross-appeal by a respondent, the person aggrieved by the decision being appealed against. Where he initiates his appeal on grounds that are competent and formulate issues from the grounds, it follows naturally that a consideration of the issues so formulated provides solution to the criticism the appellant has legitimately levied against the judgment. Unless, the issues formulated by the respondents are more relevant thereby enabling the court’s consideration of the real questions raised by the appeal the issues presented by the appellant must be preferred and considered in the determination of the appeal. See Okoye v. NC & F Co. Ltd. (1991) 6 NWLR (Pt.199) 501 SC. Where both sides have failed to formulate the relevant and necessary issues for the determination of the appeal, the Court of Appeal is of course entitled to frame the issues the consideration of which will lead to the just determination of the appeal. See Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523 SC and Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519 SC.
This appeal shall be determined on the basis of the issue formulated by the appellant. It adequately accommodates the one framed by the respondents as well.
In arguing the appeal, appellant contends that the lower court’s findings that because respondents were “resident” abroad by 4th October, 1994, when the writ of summons was issued such a writ was invalid cannot simply be correct in law. Appellant re-emphasizes the case it made at the lower court that the respondents were Nigerian business persons with businesses in England, United States of America, Netherlands in addition to those in Nigeria. Respondents also maintained residences in these places including the one in Lagos, within the jurisdiction of the lower court. The writ taken out was never meant to be served outside the court’s jurisdiction. It bore an address for service within the jurisdiction of the court. With evidence of sufficient presence of the respondents and the fact of the conduct of their business within the jurisdiction of the court, the writ was validly issued.
Appellant further submits that respondent’s counsel had at line 6 of page 67 of the record of proceeding conceded to the fact that respondents had become aware of the writ of summons and on the basis of such knowledge instructed their solicitors George Etomi & Partners to act on their behalf. The solicitors had also not only accepted in writing to accept service of the writ of summons but had entered unconditional appearance.
Appellant lastly contends that by Order 6 rule 6 of the High Court (Civil Procedure) Rules, 1992, of Lagos State, substituted service may be effected where it is impossible to effect personal service. The fact that personal service had been attempted unsuccessfully on the respondents, appellant submits, had been conveyed by averments in the supporting affidavit to the application for leave to serve by substituted means. Exhibit T.O.1 sss attached to the respondent’s dated 4th January, 1995, at pages 17-19 of the records of appeal corroborates this fact. The only grounds upon which the ex-parte order of substituted service can be nullified are for either fraud or non-disclosure of material facts by the party in whose favour the order was granted. The decision to set aside the order and the service founded on such a lawful order having not been as a result of the court’s finding that appellant had either been fraudulent or guilty of non-disclosure of material facts, was clearly a wrong exercise of judicial discretion.
Appellant supports its submission with the case of Bloomfield v. Serenyi (1945) 2 All BR 646.
Appellant urges that the appeal be allowed.
Respondent sees no fault in the lower court’s evaluation of evidence and the conclusion therefrom in respect of respondent’s residency. Exhibit T.O.2 supplied by the respondents, it is argued, fully supports the court’s finding that the respondents were in Surrey England by 4/10/94 when the writ was issued. It is further contended that No.8 Ogundana Street, Off Allen Avenue, Ikeja was not the office Address of the 1st respondent rather, it was the office address of Tokunbo Odimayo his younger brother. Respondents also submit that exhibit A.A.A.I. the particulars of Directors of Ecobank Plc., Dated 31st March, 1993, is not a conclusive proof that the respondent was resident in Nigeria at the time of the issuance of the writ of summons. Indeed, No.6 Ogundana Street, Surulere, as shown in exhibit A.A.A.I. was the respondents residential address being Nigerian citizens before their departure to England. Appellant’s contention that respondents owned many companies in Nigeria had not been backed up with credible evidence and even if it was, companies are separate personalities from their shareholders. The appellants having failed to establish that respondents had maintained sufficient presence in Nigeria, the writ they took out was illegally issued. The law required that for a writ to be served outside the jurisdiction of the court to be valid, leave of the court had to be sought and obtained. Appellants did not obtain the necessary leave before the issuance and service of the writ making its entire exercise a nullity as held in Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC and Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664. Respondents strengthened their submission that the lower court only had jurisdiction only over persons who are within its territorial limits and where a process was taken against a person who was not within such limits, in Lagos State, Order 25 of the Lagos State High Court Rules provides for the nullification of such an invalid process. Respondents concluded that the lapse in taking out the proper writ was not a mere irregularity that could be waived by their entering an appearance. They ask that the decision of the lower court be affirmed even on the basis of the decisions in U.A.C. v. Mcfoy (1961) 3 AGR 1169 and A.-G., Bendel State v. A.-G., Federation (1982) 3 NCLR 1, (1981) 10 SC 1 at 106-107.
It may out rightly be observed that the lower court’s jurisdiction over appellant’s claim was never in contention at the lower court. It could not have been otherwise, given the provision of section 236 of the 1979 Constitution, section 10 and section 11 of the Lagos State High Court Law, 1972, as amended. These legislations conferred on the court unlimited jurisdiction. Section 6(2) of the same 1979 Constitution defined the territorial limits of the court’s jurisdiction. The combined effect of these legislations is that the court was vested with the judicial power to enquire into the subject matter of appellant’s claim and enforce its decision against such persons as are present within the limits of its tenitorial jurisdiction. Since respondents must be heard before their rights were determined, see section 36 of the 1999 Constitution, the necessity for them to be within the territorial limits of the court which was to determine these rights can further be appreciated.
The way and manner a court’s jurisdiction is to be exercised is as provided by law. In this regard, we cannot ignore section 239 of the 1979 Constitution and section 12 of the Lagos State High Court law, both of which require that the court exercised its jurisdiction in accordance with such rules of practice and procedure made pursuant to the two legislations. For now, one is content to refer to Order 1A rule 4, Order 2 rule 4, Order 6 rules 2, 3 and 6 of the High Court of Lagos State (Civil Procedure) Rules, 1972 applicable to the instant case.
Order I A rule 4 provides:
“4. All other suits may be commenced and determined in the judicial division in which the defendant resides or carries on business. If there are more defendants than one resident in different judicial divisions the suit may be commenced in anyone of such judicial divisions, subject, however, to any order which the court may, upon the application of any of the parties, or on its motion, think fit to make with a view to the most convenient arrangement for the trial of such suit.”
Order 2 rule 4 provides:
“4. Subject of the provisions of Part 7 of the Sheriffs and Civil Process Act no writ of summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of the court or a Judge in chambers.”
Order 6 rules 2, 3 and 6 provides:
“2. Save if otherwise prescribed by any of the following rules of this order a writ of summons, an originating summons, or any other originating process shall be served personally by delivering to the person to be served a copy of the document, duly certified in the manner prescribed by Order 5, rule 2, without exhibiting the original thereof.”
“3. No service of a writ of summons shall be required when the defendant by his legal practitioner undertakes in writing to accept service, and enters an appearance.”
“6(1) Where personal service is required by these rules or otherwise, and it is made to appear to the court or a Judge in chambers that prompt personal service cannot be effected, the court or Judge may make such order for substituted or other service, or for the substitution of notice for service, by advertisement, or otherwise as may seem just.” (italics mine)
The foregoing provisions are made up of plain and clear words necessitating the ascription of their ordinary meaning in asserting their import. See NBN Ltd. v. Weide & Co. (Nig.) Ltd. (1996) 8 NWLR (Pt. 465) 150 SC. Once that is done deductions as hereunder made ensue:
(1) Appellant in the instant case could only commence and had his action against the respondents determined by the lower court, if the latter being defendants “reside or carryon business” within the jurisdiction of the court.
(2) If respondents do not “reside or carry out business” within the court’s jurisdiction and writ of summons to be issued would have to be served on them outside the jurisdiction of the court, leave of court must be obtained before the issuance of the writ and subsequent service of same. Failure to obtain leave of court before the issuance of such a writ renders the writ of summons, service of same and any other subsequent process or action thereon invalid. See Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664 at 688.
(3) Service of writ of summons is personal except where the court on application of the plaintiff grants leave for service by substituted means. It follows that a writ that was validly issued may in appropriate cases be served by substituted means.
Let us attempt to apply the law to the facts of the instant case.
It appears to me that both the respondents and the court below had wallowed under very serious misapprehension of the facts being contended. They failed to realize that the most important fact to resolve was whether or not respondents could, at the time of the issuance of the writ of summons, be said to “reside or carry out business” within the jurisdiction of the court. Instead, attention was fruitlessly focused on the fact that since respondents were not physically within the court’s jurisdiction at the time the writ was taken, the correct writ to issue was one to be served outside the jurisdiction of the court. With the provision of rule 2 of Order 1A this may not necessarily be so.
Appellant has stressed the fact that the writ of summons was one to be served within jurisdiction. The address for the service of same indicates that the writ was to be so served. A presumption of the regularity of such a process had “enured” in favour of the appellant. It was for the respondents to rebut the presumption. This could only have successfully been done, if respondents had supplied facts showing that at the time of the issuance of the writ they neither resided nor carried out business within the jurisdiction of the court.
In the Black’s Law Dictionary, one is said to “reside” if he lives, dwells, lodge or abide at the designated place. Residence is accordingly about personal presence at some place of abode with purpose to remain for some undetermined period. One can be said to “reside” in a place without necessarily staying permanently thereat. Residence conveys the fact of abode and the intention of remaining. It means more than physical presence. Exhibit A.A.A.I. carries the address of the 1st respondent who is a Director of Ecobank Plc., within the jurisdiction of the court. Exhibit T.O.1 originates from the same address as is contained in exhibit A.A.A.I. and is a letter written to the 1st respondent then in the United Kingdom. It was written by 1st respondent’s brother, Tokunbo.
It reads in part as follows:
“Please may I inform you that on or about the 17th of October, 94, some gentleman claiming to be a bailiff of the Lagos State High Court, Ikeja, came to our office at Ikeja, seeking to serve some court processes on you. I did not accept the said papers as I do not know what they are about. I however, informed him that you were not in town and has not been for some months now. Kindly, inform on what to do as soon as possible as I advised him to come back in a few days.”
Exhibit T02 is a 1st respondent reply to exhibit T.O.1 the letter is revealingly important and is reproduced below:
“23rd October, 1994
Mr. Tokunbo Odimayo
8A Ogundana Street
Off Allen Avenue, Ikeja,
Lagos, Nigeria.
My dear Tokunbo,
Thank you for your letter of the 20th October, 1994. Kindly get in touch with my solicitors, George Etomi & Partner, immediately and have them to take all necessary legal actions on my behalf, regarding the writ of summons from UBA I will also contact Mr. George Etomi personally from here, so that the matter is dealt with properly as soon as possible.
With best wishes.
- O. Odimayo”
The net import of these documents is that although respondents could be said to be physically outside the jurisdiction of the court, at the time of the issuance of the writ, they however maintained some measure of presence and had the intention of retaining such presence at an abode within the jurisdiction of the court. A presence that was sufficient for the respondents to get to know that appellant had made a compliant against them in court warrants a positive finding that they reside within that court’s jurisdiction. By exhibit A.A.A.I. and exhibit T.O.1, it would equally be unreasonable not to hold that respondents carry out business within the court’s jurisdiction as well. A writ of summons issued in respect of the respondents whose address as reflected in the said writ is within the court’s jurisdiction was validly issued. It required no leave of court to be so.
Beyond the issue of being “resident” or “carrying out” business within jurisdiction, exhibit T02 and the unconditional appearance entered on behalf of the respondents constituted such lawful submission to the court’s jurisdiction. A legitimate enquiry into the action filed against them had thus been facilitated. It was wrong of the court below to allow them resile from that understanding. See Ex parte Iskera, Ex parte Mercantile Transport Company referred to with approval in Nwabueze v. Okoye supra at page 681.
It must be restated that civil jurisdiction as a concept has necessarily strived on either the principle of effectiveness or submission. Where the exercise of a court’s jurisdiction is provided for by legislation it is done with the view to ensuring effectiveness of the court’s decision. In the absence of such a legislation, the court’s eventual decision is also secured by the parties to the action who had voluntarily agreed to be bound by the decision. The latter is an exercise of jurisdiction on the basis of the principle of submission. A litigant, therefore, must not be allowed to frustrate the court’s assumption of jurisdiction, when same had been facilitated by the litigant’s voluntary submission.
In the instant case, as it would be in all such cases, the resolve was to deny an aggrieved person access to court. Here, respondent’s would have further succeeded if their arguments are to be upheld. Courts must neither facilitate nor endorse fraud. Appellant remains without remedy if respondents are to duplicate the same arguments in other jurisdictions. An exercise of discretion, for that was what the respondents prayed the court below, which delays the attainment of or totally shuts out litigants from justice is undeniably perverse. It must be interfered with: See Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628 SC and Elendu v. Ekwoaba (1998) 12 NWLR (Pt. 578) 320 SC.
In any event, by the operation of rule 3 of Order 6 of the rules of the lower court, respondents’ counsel having undertaken in writing to accept service and entered appearance, on behalf of his client, service of the writ whether by substituted means as ordered by the court below or on counsel on the instruction of the respondents, cease to be a legal requirement. Appellant’s action was on course even without service of the writ. The decision of the lower court that the writ of summons was invalid as same was issued against respondents residing outside the jurisdiction of the court was misconceived. The court’s further order setting aside service of such a writ which service had by law been dispensed with was equally an exercise in futility. The order granting all the reliefs secured by the respondents is wrong in law. Appellant’s grief is genuine.
There can be no doubt that the question of proper issuance and service of a writ of summons on the respondents are conditions precedent for the exercise of the jurisdiction, which the court has in respectof the subject matter of the action between the parties. Where these formalities or conditions precedent had not been fulfilled, it would be illegal for the court to embark on any enquiry. In the instant case, the appellant’s case had been commenced by due process of law and upon fulfillment of all the conditions precedent to the exercise of jurisdiction. There is no visible defect to render any enquiry into the subject-matter of the action incompetent. See Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6 at 26 and Madukolu and Others v. Nkemdilim (1962) 2 SCNLR 341, (1962) All NLR 587 at 594. The appeal is meritorious. It is allowed. Cost put at N10,000 is ordered against the respondents.
Other Citations: (2004)LCN/1581(CA)