JUDGMENTS OF THE NIGERIAN COURTS OF JUSTICE
Restoring Nigeria's Law to Nigeria's People - One by One
KURASTIC NIGERIA LIMITED
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment):
On the 23rd day of December,
2005, Kurastic Nigeria Ltd. brought an ex-parte
application before the High Court of the Federal Capital
Territory, Abuja praying for leave to place a writ of
summons under the Undefended List Procedure pursuant to
Order 21 rule 1 and Order 11 rule 5(1)(d) of the High
Court of the Capital Territory, Abuja (Civil Procedure)
Rules, 2004 and the inherent jurisdiction of the Court.
The second prayer was for leave to serve Alhaji
Abdulkardir Abacha the originating processes and orders
that may be subsequently issued by the Court by
substituted means, namely, "By delivery of same to
an adult inmate at the residence of the
Defendant/Respondent at No. 189 Off, R. B. Dikko Road,
Asokoro, Abuja, the venue where the transaction which
gave rise to this suit was entered into." The
application was supported by a thirteen paragraph
affidavit deposed to by Senator Kura Mohammed, a
Director of the applicant company/businessman. Upon
grant of leave and service of the processes the gist of
the application in paragraph 5(a)-(u) of Senator Kura
Mohammed's affidavit in support of the motion on notice
sets out in the substantive the following facts:
on the 10th of July, 2003, the Applicant, a public
affairs consultant, entered into a Service Agreement
with the Respondent whereby he engaged the services of
the Applicant to facilitate the settlement with
Federal Government of Nigeria, the dispute with
respect to the Respondent's frozen bank accounts in
Geneva Switzerland. A copy of the Service Agreement
dated 10/7/2003 is attached hereto and marked Exhibit
the Respondent by virtue of the above agreement
empowered the Applicant to facilitate and settle all
issues, matters and disputes relating to the sum of US
$93.7m (Ninety Three Million, Seven Hundred Thousand
US Dollars) listed in Accounts principally maintained
by the Respondent in Geneva Switzerland, as listed
Bancaire Privee Geneva Account Name New: Newland
Overseas Ltd. Amount frozen - US$8.7m (Eight Million,
Seven Hundred Thousand US Dollars).
(ii) Banque Nationale De
Paris Geneva, Ac. No.2366915 Genesis Holding Limited,
Amount frozen US$15,381,881.00m (Fifteen Million,
Three Hundred and Eighty One Thousand, Eight Hundred
and Eighty One US Dollars).
(iii) Banque Nationale De
Paris Geneva, Ac. No.5641832 Mercury Aviation Services
Ltd. Amount frozen -US$13,541,173.00 (Thirteen
Million, Five Hundred and Forty One Thousand, One
Hundred and Seventy Three US Dollars).
Bancaire Privee Geneva, Ac. No. 2353295 -
US$53,318,702.00 (Fifty Three Million, Three Hundred
and Eighteen Thousand, Seven Hundred and Two US
Nationale De Paris Geneva Ac. No.564088-8, Vectra
Commodities, Amount frozen US$154,406 (One Hundred and
Fifty Four Thousand, Four Hundred and Six US Dollars)
making a total sum of US$91,096,272.00 (Ninety One
Million, Ninety Six Thousand, Two Hundred and Seventy
Two US Dollars).
(b) That the
Respondent agreed to pay to the Applicant 10% of
whatever sums that was settled in favour of the
Respondent out of the total sum of US$91,096,272.00
(Ninety One Million, Ninety Six Thousand, Two Hundred
and Seventy Two US Dollars).
the Applicant, based on the agreement aforementioned
commenced the facilitation and performance of the
above agreement by engaging several partners and
professional firms in order to achieve settlement of
all the disputes and issues between the Respondent and
the Federal Government of Nigeria.
the Applicant set up, facilitated, requested for and
held several meetings in Nigeria and in Geneva with
the Federal Government of Nigeria represented by
officers from the office of the National Security
Adviser, the Special Investigation Panel, the
Accountant General of the Federation and the Counsel
to the Federal Government in Geneva, Switzerland (Mr.
Enrico Motrini) on the one hand and the Respondent,
the Principal Officer of the Applicant i.e. (myself
and Alhaji Umaru Shinkafi -Marafan Sokoto) and the
Solicitor to the Respondent in Geneva by name Mr. M.O.
the Applicant pursued the Respondent's brief from all
professional dimensions, to wit: political, economic,
diplomatic, public affairs, etc, using
compromise, consultation, mediation, diplomacy and
understanding and above all, the goodwill of the
principal partners of the Applicant.
the Applicant in addition to the above steps took part
in negotiating what portion of the foreign funds was
to be returned to the Government of Nigeria while the
balance was held by the Respondent and it was on the
basis of this that the Respondent's Solicitor Messrs
M.O. Costabella Pirkl made the proposal contained in a
letter to the Counsel representing the Federal
Government of Nigeria, (Mr. Monfrini) dated 6th
October, 2003. A copy of this letter is attached
hereto and marked as Exhibit "B".
in view of the peculiar nature of the Respondent's
case and more particularly the negative perception
about the regime led by the Late General Sani
Abacha, the assignment carried out by the
Applicant presented several difficulties which had to
be dealt with by the Applicant.
it took a long period of negotiation and the Applicant
had to bring to bear the past experience of their
principal officers and their good will within the
Government of Nigeria to have the matter resolved and
these facts are evinced by the following
correspondences between the Lawyers to the Federal
Government of Nigeria and the Counsel to the
Letter dated September 5, 2003 by Mr. M. O.
Costabella to Mr. Monfrini.
Letter dated September 9, 2003 from M. O.
Costabella to Mr. Monfrini.
Letter dated 12th September, 2003 from Mr.
Monfrini to M.O. Costabella.
Letter dated 5th December, 2003 written by M.
O. Costabella to Mr. Monfrini.
These letters are
respectively marked Exhibits "C", "D", "E" and "F"
(i) That on
the basis of the negotiations as expressed in Exhibit
"C" to "F" above, a final proposal or the
settlement and by a letter dated 16th March, 2004
Monfrini Crettol representing the Federal Government
of Nigeria, sought for the approval of His Excellency
the President of the Federal Government of Nigeria to
settle the matter on the terms of the proposal in the
letter of 16/03/2004. A copy of this letter is hereto
attached and marked Exhibit "G".
upon receipt of Exhibit "G" the President of
the Federal Republic of Nigeria gave approval for the
release of the Respondent's frozen funds less
$50,000,000 (Fifty Million Dollars) which was to be
paid into the account of the Federal Government of
Nigeria as a condition precedent for the release of
the aforesaid contract was given by the President vide
a letter dated 17th March, 2004. A copy of this letter
is attached as Exhibit "H".
by a letter dated 16th April, 2004, the Respondent was
intimated of the President's approval as per Exhibit
"H" and having received an undertaking by the
Respondent to pay the sum of $50,000,000 (Fifty
Million Dollars) into the Federal Government of
Nigeria Account as instructed by Exhibit "H",
the Respondent's accounts were defrozen and all the
actions against the Respondent and his companies were
withdrawn. Copies of the two letters dated 16/4/2004
by Enrico Monfrini on behalf of the Federal Government
of Nigeria are hereto attached and marked Exhibit
"I1" and "I2" respectively.
(m) That based on the
above extensive and exhaustive deliberations,
negotiations and agreement, the Respondent benefited
to the tune of USD $43,370,000 (Forty Three Million,
Three Hundred and Seventy Thousand US Dollars) as his
part of the settlement out of the frozen accounts.
(n) That to
achieve the above result the Applicant employed the
good will, wisdom, diplomacy and good office of its
Principal Partners to wit: Alhaji Umaru A Shinkafi,
Marafan Sokoto and Senator Kura Mohammed in the
settlement with the Federal Government of Nigeria for
the benefit of the Respondent.
(o) That by the
above services the Applicant is entitled to the sum of
US$4,370,000 representing 10% of the aggregate of
USD$43,370,000 (Forty Three Million, Three Hundred and
Seventy Thousand US Dollars) sum that is due to the
Respondent in the settlement.
(p) That the
Applicant made various expenditures including Airfares
Abroad, Visa Fees, Hotel accommodation, logistic and
contingency funds, etc, in the course of the above
services for the benefit of the Respondent.
(q) That the
Applicant made a demand for payment of his agreed
undertaking and guaranteed 10% fees on the Respondent
dated 20th July, 2004 herein marked Exhibit "J."
the Respondent despite the above Demand Notice, phone
calls and verbal discussions has refused, failed and
neglected to pay the Applicant the above consideration
and professional fees and the Respondent has been out
of Nigeria for more than 1 year and even attempts made
to contact him abroad has been abortive because he has
been evading the Applicant.
the Respondent's refusal, neglect and failure to pay
the Applicant the agreed 10% fees is a violation of
the service, agreement and a breach of the Applicant's
the Respondent has already benefited from the usage
and services of the Applicant upon the settlement of
the issues and matter with the Federal Government.
(u) That all suits, matters and cases pending hitherto against the Respondent has been discontinued and withdrawn against the Respondent by the Federal Government of Nigeria as a result of the Applicant's services."
Upon defreezing of the accounts and recovery of diverse sums, Alhaji Abdulkardir Abacha would not honour the agreement (Exhibit "A"). The endorsement on the writ of summons reads as follows:
"The Plaintiff's claim
against the Defendant is for:
sum of USD 4,370,000 (Four Million, Three Hundred and
Seventy Thousand US Dollars) to the Plaintiff as
professional fees representing 10% (ten percent) of
the aggregate sum due to the defendant in the
settlement agreement of USD 43,700,000 (Forty Three
Million, Seven Hundred Thousand US Dollars) and upon
the conclusion of the settlement facilitated and
negotiated by the plaintiff.
at the rate of 20% (twenty percent) of the sum of USD
4,370,000 (Four Million, Three Hundred and Seventy
Thousand US Dollars) per annum on the above sum from
the 20th of July, 2004 until judgment and thereafter
20% interest on the above sum until the final
liquidation of the above sum.
cost of this action."
Defendant/Applicant was not served with the writ of
summons and the originating processes in this action
and no affidavit of the bailiff of the Court was filed
to establish service before judgment was entered.
judgment was obtained by fraud.
Particulars of Fraud:
(a) The signature of the Applicant which appeared on the agreement dated 10th July, 2003 purportedly executed between the parties and upon which the judgment was based, is a forged signature and is not the signature of the Defendant/Applicant.
(b) The person who purportedly signed the agreement as a witness for the Defendant is unknown to the Defendant and the address given by the said witness, Shehu Musa Gaban, as Block 1 Flat 3, F.H.A. Maitama does not exist.
3. The agreement dated 10th July, 2003 purportedly executed between the parties upon which the plaintiff's action was based is an illegal agreement and cannot give rise to any cause of action.
The particulars of illegality are:-
agreement itself contravenes the provisions of Section
10 of the Corrupt Practices and Other Related Offences
(b) The agreement is against public policy."
"A final judgment is one which decides the rights of parties. In other words it is a decision on the merits of the case where the matter is assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the Courts by the legal combatants."
Again in Clement C. Ebokam vs. Ekwenibe & Sons Trading Company Ltd. (1999) 7 SCNJ 77, Kalgo, JSC held at page 87 that:
"...Where the decisions of the Court under consideration clearly and wholly disposes of all the rights of the parties in the case, that decision is final. But where the decision only disposes of an issue or issues in the case, leaving the parties to go back to claim other rights in the Court, then that decision is interlocutory. And in order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order."
Thus, having dismissed the appellant's application to set aside the judgment of 6th March, 2006 as lacking in merit, the learned trial Judge had completely, like Pontus Pilate, washed his hands from the case except to entertain perhaps, applications for cost, or stay of execution, etc. The ruling must be treated as final. Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 as altered reads as follows:
"241(1) An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance."
Hon. Justice L.H. Gummi, OFR, Chief Judge
of the High Court of the Federal Capital Territory,
Abuja was sitting at first instance when his Lordship
delivered the ruling of 23rd September, 2010 hence the
appellant does not require leave to appeal to this
Court. The preliminary objection
lacks merit and is dismissed.
"1. Whether the learned trial Chief Judge was right to distinguish the decision of the Supreme Court in the case of Kida vs. Ogunmola (2006) 6 SC 147 as not being applicable to the facts of the instant case. (Distilled from ground 2 of the Grounds of Appeal).
2. Whether the learned trial Chief Judge was right in the circumstances to hold from the available evidence, that the Appellant was properly served (Distilled from grounds 3, 4 and 5 of the Grounds of Appeal).
3. Whether the judgment ought to have been set aside on grounds that it was obtained by fraud and that the judgment enforced an illegal agreement (Distilled from grounds 1, 6 and 7 of the Grounds of Appeal).
4. Whether the Ruling delivered on 23rd September, 2010 is a nullity having regards to its delivery almost one year after conclusion of final addresses (Distilled from ground 8 of the Grounds of Appeal)."
The respondent distilled the following issues for determination in the Amended Brief:
"1. Whether having regards to the evidence on record before the Court and the decision of the Supreme Court in the case of Kida vs. Ogunmola (2006) 6 SC 147, the learned trial Chief Judge was right in holding that the Appellant was properly served with the originating process? (Grounds 2, 3, 4 and 5).
2. Whether the judgment ought to have been set aside on grounds that it was obtained by fraud and that the judgment enforced an illegal agreement? (Grounds 1, 6 and 7).
3. Whether the ruling delivered on the 23rd September, 2010 is a nullity having regards to its delivery almost one year after conclusion of final addresses? (Ground 8)."
The following issues are distilled in the Cross-appellant's brief filed on 29th February, 2012:
"1. Whether the trial Court was right to have held that the motion on Notice dated 20th February, 2007 purportedly prepared by a legal practitioner but signed by an unknown person, was a competent process? (Ground 1).
2. Whether in view of the provisions of Order 1 rule 2(b) of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004, the Motion on Notice dated 20th February, 2007 was a proper mode of seeking to set aside the judgment of the trial Court delivered on the 6th of March, 2006 on the ground of fraud? (Ground 2)."
Barrister Onoja, Esq. who settled the Cross-respondent's brief on 4th June, 2012 with a deeming order of 2nd October, 2012 distilled the following issue for determination:
"Whether the learned trial Judge was right to have dismissed the preliminary objection to the competence of the motion on Notice dated 20th February, 2007 in the circumstances."
I have read the ruling of the
lower Court and considered the issues formulated by the
learned Counsel to the appellant in main or substantive
appeal as well as in the cross-appeal. I am of the
humble view that the determination of issues 1 and 2 in
the appellant's brief and issues 1 and 2 in the
Cross-appeal, considered together will determine the
fate of the substantive appeal and Cross-appeal. The
determination of other issues in the appeal and
cross-appeal will become academic.
an application in Form 1, as in the Appendix is made
to issue a writ of summons in respect of a claim to
recover a debt or liquidated money demand, supported
by an affidavit stating the grounds on which the claim
is based, and stating that in the deponent's belief
there is no defence to it, the Judge in chambers shall
enter the suit for hearing in what shall be called the
3(1) Where a party served with the writ delivers to a Registrar, within 5 days to the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.
(4) Where a defendant neglects to deliver the notice of defence and an affidavit prescribed by Rule 3(1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit and Judgment given accordingly.
(5) A court may call for hearing or require oral evidence where it feels so compelled at any stage of the proceedings under Rule 4."
Order 21 rule 1(1) of the Rules (supra) postulates that the application for the issuance of a writ of summons in respect of a claim to recover a debt or liquidated money demand, has to be "in Form 1, as in the Appendix.
" A careful examination of Form 1 of the Rules (supra) will reveal that apart from the endorsement of the claims and the address for service of the claimant or his legal representative, paragraph "C" of the notes on the memorandum of appearance provides that: "(C) Address must be within the jurisdiction."
The motion ex-parte seeking leave to prosecute the claims under the Undefended List Procedure and to serve the processes by substituted means on the appellant gave his address as "No. 189 Off, R.B. Dikko Road, Asokoro, Abuja." However, in paragraph 5(r) of the affidavit in support of the ex-parte application it is deposed on oath as follows: "...the Respondent has been out of Nigeria for more than 1 year and even attempts made to contact him abroad has been evading the a (sic) Applicant." This is a material contradiction.
defendant shall within a time limited in the writ or
other originating process enter an appearance in the
A defendant shall enter an appearance by
delivering to a Registrar a memorandum of appearance
in Form 11, or where leave was obtained before
appearance, a notice in Form 12, respectively, as in
A defendant appearing in person shall state in
the memorandum of appearance an address for service
which shall be within the jurisdiction.
(2) Where a defendant appears by a legal practitioner, the legal practitioner shall state in the memorandum of appearance his place of business and an address for service which shall be within the jurisdiction and where any legal practitioner is only the agent of another legal practitioner, he shall also insert the name and place of business of the principal legal practitioner.
3(1) Where the memorandum does not contain an address for service, it shall not be accepted.
I use the word "appearance" as, "A coming into Court as a party or interested person, or as a lawyer on behalf of a party or interested persons; esp., a defendant's act of taking part in a law suit, whether by formally participating in it or by an answer, demurrer, or motion, or by taking post judgment steps in the law suit in either the trial Court or an appellate Court." See Blacks Law Dictionary, 9th edition, page 113.
"5(1) Where it appears to a Court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the Court may order that service be effected either by:-
(a) Delivery of the document to some adult inmate at the usual or last known place of abode or business of the person to be served.
(c) Advertisement in the Federal Gazette, or in some newspaper circulating within the jurisdiction; or
(d) Notice put up at the principal Court house of, or a place of public resort in the Judicial Division where the respective proceeding is instituted, or at the usual or last known place of abode or of business, of the person to be served; or
(e) E-mail or any other scientific device now known or later developed; and
Courier service or any other means convenient
to the Court.
(2) An application to a Court for an Order of substituted service or other service, shall be supported by an affidavit, setting the grounds on which the application is made."
It can be seen that out of the many modes prescribed for service of processes by substituted means, the respondent/cross-appellant resorted to Order 11 rule 5(1)(a) of the Rules (supra). The Court also granted the order prayed for, namely, that "...the processes shall be delivered to some adult inmate at the usual or last known place of abode or business of the person to be served." The word "abode" means "Someone's home" or "...the place where somebody lives": Longman Dictionary of Contemporary English, page 3; Oxford Advanced Learner's Dictionary, 7th edition, page 3. In legal parlance, an "abode" is "A home; a fixed place or residence." Blacks Law Dictionary (supra), page 6.
"28. Where the service of a document has been effected by a bailiff or other officer of Court, an affidavit of service sworn to, by that bailiff or other officer shall on production, without proof of signature, be prima facie evidence of service.
31. Every Court shall keep a book for recording service or process, in such form as the Chief Judge may direct, in which shall be entered by the officer serving the process, or by the registrar, the names of the plaintiff or complainant and the defendant, the particular court issuing the process, the method, whether personal or otherwise, of the service, and the manner in which the person serving ascertained that he served the process on the right person, and where any process has not been duly served, then the cause of failure shall be stated, and every entry in the book or an office copy of any entry shall be prima facie evidence of the several matters stated in it."
The respondent did not place before the
lower Court an affidavit of service sworn to by the
bailiff that effected service nor a certificate of
service showing, "...the manner in which the person
serving ascertained that he served the process on the
right person" for "...every entry in the book or an
office copy of any entry" to "be prima facie evidence
of the several matters stated in it." Without strict
compliance with the provisions of Order 11 rules
5(1)-(2), 28 and 31 of the Rules (supra), it cannot be
categorically asserted that a certificate of service
coupled with an affidavit sworn to by a bailiff or the
person that effected service constituted prima facie
evidence that the processes were served on the right
"Now, the appellant applied to issue and serve the writ on the respondent outside the jurisdiction of the Court and yet the appellant was served by substituted means, by pasting the originating processes on the last known abode of the appellant within jurisdiction, when it was manifestly clear that the respondent was no longer resident there or within the jurisdiction of the Court. For a defendant to be legally bound to respond to the order for him to appear in Court to answer a claim of the plaintiff, he must be resident within jurisdiction, see National Bank (Nig.) Ltd. vs. John Akinkunmi Shoyoye and Anor. (1977) 5 SC 181.
In the instant case, the respondent was known to be out of jurisdiction, and it is not in dispute that the respondent had moved out of Maiduguri to Ibadan, where he had relocated with his family long before the issue of the writ of summons. It is trite law, that after its issue, a writ of summons or any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires to, that which is claimed against him.
The validity of the issue of the writ and the service of the Court on the respondent was raised before the trial Judge and the learned trial Judge in his ruling on this issue...
Thus, the trial Court disregarded the complaint of the respondent on the validity of the issue and service on him of the processes. The Court of Appeal rightly in my view, held that the trial Judge acted erroneously to have discountenanced the argument of the Counsel for the respondent on this issue. In my view, the validity of the originating processes in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.
However, of more fundamental nature, the respondent who was outside jurisdiction, claimed to be unaware of the suit as he was not served with the originating process outside the jurisdiction of the Borno State High Court as properly ordered by the Court. He was allegedly served by substituted means. As shown above, that was no service.
As mentioned before in this judgment, service of process on a party to a proceeding is crucial and fundamental. See Auto Import Export vs. Adebayo (2002) 18 NWLR (Pt.799) 554, (2003) FWLR (Pt.140) 1686; S.G.B. Ltd. vs. Adewunmi (2003) FWLR (Pt.158) 1181, (2003) 10 NWLR (Pt.829) 526; Mbadinuju vs. Ezuka (1994) 8 NWLR (Pt.364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of jurisdiction was not fulfilled. That being so, the trial Court, in the instant case has no jurisdiction to hear the appellant's application and enter judgment against the respondent in default of filing statement of defence. The proceedings as far as it affected the respondent on the 24/12/1996 was a nullity. See also Scott-Emuakpor vs. Ukavbe (1975) 12 SC 41. See UBN Plc vs. Okonkwo (2004) 5 NWLR (Pt. 867) 445.
Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of Counsel since where there is no service, there is no valid trial. It was manifest and common ground that the respondent was known to be out of jurisdiction..."
Courts exercise jurisdiction over persons who are within its territorial jurisdiction: Nwabueze vs. Obi-Okoye (1988) 10-11 SCNJ 60 at 73; Onyema vs. Oputa (1987) 18 NSCC (Pt. 2) 900; Ndaeyo vs. Ogunnaya (1977) 1 SC 11. Since the respondent was fully aware that before the issuance of the writ the appellant's abode or residence for the past one year was no longer at No.189, Off R.B. Dikko Road, Asokoro, Abuja within jurisdiction, substituted service of the processes should not have been ordered by the learned trial Judge. In United Nigeria Press Ltd. & Anor. vs. Timothy Olu Adebanjo (1969) 1 All NLR (Vol.1) 431, Fatayi-Williams, JSC (as he then was) explained the purport of service of process as follows:
"In this application made exparte, the appellant who is the respondent in this appeal is applying for an order that all the papers pertaining to an earlier application for the release to him of the judgment debt already paid into Court by the first appellant and all other processes issued in the matter be served on both appellants by pasting them on the door of their business premises at No. 13, City Way, Yaba.
The applicant swore to an affidavit in support of the application the relevant particulars of which are as follows: Although the last known address of the appellants is No. 13 City Way, Yaba, neither of them was found at the said address when the applicant tried on several occasions to serve them with the motion papers pertaining to his earlier application for the release of the said judgment debt. As No. 13, City Way, Yaba, is, according to the "Companies Registry" in Lagos, the last registered address of the first appellant's office, the motion papers for the release of the money, if pasted on the door of this last registered address, might get to the knowledge or hearing of the appellants. The affidavit, significantly enough, was silent about the last known address of Mr. Smart Ebbi, the second appellant.
In our opinion, the object of all types of service of processes, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of, and able to resist, if he may, that which is sought against him. Therefore, since the primary consideration in an application for substituted service is as to how the matter can be best brought to the attention of the other party concerned, the Court must be satisfied that the mode of service proposed would probably, after all practicable means of effecting personal service have proved abortive, give him notice of the process concerned.
In the present application all that is disclosed in the affidavit in support is that the appellants could not be found at their registered address and that if the motion papers are pasted on the door of this address notice of them might get to the knowledge of the appellants."
The proceedings in the lower Court were
commenced with an invalid writ of summons hence the
delivery of the processes to Musa Ishaya was a
nullity. The trial Court lacked the jurisdiction to
hear the substantive suit and to enter judgment
against the appellant. When a writ and service are
nullities, the Court lacks the jurisdiction to make
any competent pronouncements. This is because
jurisdiction must be vested in a Court before the
rights of a party can be determined. See Kalu vs.
Odili (1992) 6 SCNJ (Pt. 1) 76 at 90. I resolve issues 1 and 2 in the
favour of the appellant. I resolve issues 1 and 2 in
favour of the appellant by declaring the Writ of Summons
and the service of the processes as null and void.
"294(1) Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of subsection (1) of this section, the person presiding at the sitting of the Court shall send a report of the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit."
The appellant has not shown how he suffered a miscarriage of justice though the delivery of the ruling was in contravention of Section 294(1) of the Constitution (supra). The miscarriage of justice which the appellant established was not in the delivery of the ruling outside the ninety days period prescribed by the Constitution but is in issuing a Writ and serving the processes by way of substituted service within jurisdiction when at the time of issuance and service of the processes the appellant was outside the jurisdiction of the Court.
already done or omitted to be done, or any favour or
disfavour already shown to any person, by a public
officer in the discharge of his official duties or
in relation to any matter connected with the
functions, affairs or business of a Government
department, public body or other organization or
institution in which the public officer is serving
as such; or
(ii) anything to be afterwards done or omitted, or any favour, disfavour to be afterwards shown to any person, by a public officer in the discharge of his official duties or in relation to any such matter as aforesaid, is guilty of an offence of official corruption and shall on conviction be liable to imprisonment for seven (7) years."
I cannot see how the provisions of the above statute can by any stretch of judicial interpretation be construed to apply to Exhibit "A" which is the foundation of the relationship between the appellant and the respondent to be an "illegal contract". The Independent Corrupt Practices and Other Related Offences Act No. 5 of 2000 define in Section 2 a "Public Officer" to mean, "a person employed or engaged in any capacity in the public service of the Federation..."etc. In paragraph 5 of the affidavit in support of the exparte application sworn to on 23rd December, 2005 the deponent described himself as a "Public Affairs Consultant". See also paragraph 5 of the affidavit in support of the substantive motion on notice sworn to by the deponent on the same 23rd December, 2005. There is nothing from all the processes filed in the Court below by the appellant to the contrary. I therefore hold that the provisions of Section 10(a)(i) and (ii) of the Independent Corrupt Practices and Other Related Offences Act No. 5 of 2000 has no application to the facts of this appeal.
3rd Floor, City Plaza,
Plot 596 Ahmadu Bello Way,
Garki II, Abuja."
"...Fraud is an extrinsic, collateral act, which vitiates the most solemn proceedings of Courts of Justice. LORD COKE says, it avoids all judicial acts, ecclesiastical or temporal."
Again in Fabunmi vs. Agbe (1985) 1 NWLR (Pt. 2) 299, Obaseki, JSC held at page 319 paragraph "C" that:
Where fraud is alleged in civil or criminal proceedings, it is analogous to imputation of a crime which has to be proved beyond reasonable doubt. See Section 135(1)(2) and (3) of the Evidence Act, 2011.
"I have to add some observations which have been seen by the Lord Justice Thesiger and in which he concurs. We have thought it right and due to the Defendants to go through the allegations made against them; and their Counsel, in fact, scarcely asked for any judgment except one based on their acquittal of the fraud charged against them. But we must not forget that there is a very grave general question of far more importance than the question between the parties to these suits. Assuming all the alleged falsehood and fraud to have been substantiated, is such a suit as the present sustainable? That question would require very grave consideration indeed before it is answered in the affirmative. Where is litigation to end if a judgment obtained in an action fought out adversely between two litigants sui juris and at arm's length could be set aside by a fresh action on the ground that perjury had been committed in the first action, or that false answers had been given to interrogatories, or a misleading production of documents, or of a machine, or of a process had been given? There are hundreds of actions tried every year in which the evidence is irreconcilably conflicting, and must be on one side or other willfully and corruptly perjured. In this case, if the plaintiffs had sustained on this appeal the judgment in their favour, the present Defendants, in their turn, might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and subordination of perjury; and so the parties might go on alternatively ad infinitum. There is no distinction in principle between the old Common Law action and the old Chancery suit, and the Court ought to pause long before it establishes a precedent which would or might make in numberless cases judgments supposed to be final only the commencement of a new series of actions. Perjuries, falsehoods, frauds, when detected must be punished and punished severely; but, in their desire to prevent parties litigant from obtaining any benefit from such foul means, the Court must not forget the evils which may arise from opening such new sources of litigation, amongst such evils not the least being that it would be certain to multiply indefinitely the mass of those very perjuries, falsehoods, and frauds."
Baggallay, L.J., however reserved his opinion on whether a fresh action can be brought to set aside a judgment on the grounds of fraud. His Lordship held at page 334 as follows:
"With reference to the observations which have just been made by the Lord Justice, I only which to state that, whilst I am fully sensible of the evils and inconveniences which must arise from re-opening what are apparently final judgments between litigant parties, I desire to reserve for myself an opportunity of fully considering the question how, having regard to general principles and authority, it will be proper to deal with cases, if and when any such shall arise, in which it shall be clearly proved that a judgment has been obtained by the fraud of one of the parties, which judgment, but for such fraud, would have been in favour of the other party. I should much regret to feel myself compelled to hold that the Court had no power to deprive the successful but fraudulent party of the advantages to be derived from what he had so obtained by fraud."
Thus the fore-most decision of the English Court of Appeal did not totally deprecate the mode of commencing a fresh action to set aside a judgment obtained by fraud. But James L.J., questioned whether such an action was maintainable while Baggallay, L.J., left the matter to be argued in the future. However, this controversy was finally settled by the House of Lords in Jonesco. vs. Beard (1930) All E.R Rep. 483. In that case the action to set aside a judgment on grounds of fraud was commenced and tried by Maugham, J., but dismissed. In the Court of Appeal the plaintiff relied on affidavit evidence to establish fraud. The appeal was allowed and a new trial ordered. The defendant appealed to the House of Lords, Lord Buckmaster delivered the opinion of the House holding at page 484 paragraph "C" to page 485 paragraph "A" as follows:
"The appellant in this appeal was the defendant in an action brought against him by the respondent claiming (a) a share in eight named racehorses either as a joint owner with the plaintiff to the extent of one'97quarter or as a partner: (b) a sum of 240, the price of two horses known as Why Worry and Zette, alleged to have been sold and delivered by him to the appellant in October, 1927. The questions at issue were purely questions of fact and the learned Judge who tried the action having expressed his disbelief in the respondent'91s story, dismissed the action with costs. Judgment to that effect, dated July 12, 1928, was duly drawn up, passed and entered. On August 23, 1928, the respondent served a notice of appeal asking (a) for a new trial, but without specifying any grounds, or, alternatively, (b) that judgment be entered for him in the action. The Court of Appeal have ordered a new trial and from their judgment this appeal has been brought.
Thus the controversy has been settled that the established practice for applying to set aside a judgment obtained by fraud under English jurisprudence is not by affidavit evidence, but by a fresh action. That to invoke a motion supported by affidavit or invoke the powers of the Court of Appeal is a departure from the established practice.
The Supreme Court of Nigeria has also
held the same views in a plethora of authorities:
Olufunmise vs. Falana (1990) 4 SCNJ 142 at 157; WAA
Ltd vs. Ajanaku (1971) 1 NWLR 194; Folami vs. Cole
(1990) 4 SCNJ 18; Nwobodo vs. Onoh (1984) SCNLR 1,
Talabi vs. Adeseye (1972) 8-9 SC 20 at 40. See also
the authority cited by the learned silk appearing for
the cross-appellant. All Courts subordinate the
Supreme Court are, by the doctrine of stare decisis
and judicial precedent, bound to follow the decisions
of the Supreme Court. Furthermore, as the process for
commencing proceedings prescribed under Order 2(1)(b)
of the High Court of the Federal Capital Territory,
Abuja (Civil Procedure) Rules, 2004 to set aside the
judgment based on an allegation of fraud was not
followed by the cross-respondent, it is hereby
declared null and void. In other words, the motion on
notice praying to set aside the judgment delivered on
6th day of March, 2006 was incompetent. See Quo Vadis
Hotels Ltd. vs. Commissioner of Lands, Mid-Western
State of Nigeria vs. Chief Francis Edo-Osagie (1973) 1
All NLR (Pt. 1) 715.
The judgment prepared by Tur,
JCA just delivered was made available to me before
now. I agree entirely with his reasoning and conclusion
that the appeal is meritorious and I too accordingly
I have had the benefit of
reading in draft, the judgment of my learned brother TUR
JCA, just delivered. I agree with the reasons and
conclusions reached therein.
On the strength of this, the learned trial Chief Judge was wrong when he held that
"...It is my finding that the certificate of service filed to evidence service is sufficient evidence of the court were served by the bailiff of the Court on the applicant by delivery of same to Musa Ishaya."
If the learned trial Chief Judge had examined the certificate of service of the originating processes, he would have seen that the service was effected on one "Musa Ishaya". There is nothing in the certificate of service to show that 'Musa Ishaya' was an adult inmate of plot 189, Off R. B Dikko Road Asokoro, Abuja, as required by the Order for substituted service. There is therefore clearly, no compliance with the Order for substituted service and so there was no service of the processes on the appellant. That alone, ought to have dictated setting aside the purported service and the default judgment entered.
"...For a defendant to be legally bound to respond to the order for him to appeal in Court to answer a claim of the plaintiff, he must be resident within jurisdiction. See NATIONAL BANK (NIG) LTD VS. JOHN AKINWUMI SHOYOYE & ANR. (1977) 5 S.C 181...where at the time of the issuance of the Writ, personal service could not in law be effected on a defendant, who is outside the jurisdiction of the Court, substituted service should not be ordered, see Fry Vs. Moore (1889) 23 Q.B.D 395. If the defendant is outside the jurisdiction of the Court at the time of the issue of the Writ and consequently could not have been personally served in law, not being amenable to that Writ, an order for substituted service cannot be made. See Wilding Vs. Bean (1981) 2 QB 100..... In my view, the validity of the originating process in a proceeding before a Court is fundamental, as the competence of the proceedings is a condition sine qua non to the legitimacy of any suit. Therefore the failure to commence proceedings with a valid Writ of Summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time...."
Since the appellant was
resident in London, outside the jurisdiction of the
court at the time the Writ of Summons was issued, he
could not be served personally with it. Once he could
not be personally served, then the Writ of Summons could
not be issued. Its issue was therefore invalid. The
purported service of same was therefore invalid. There
was nothing valid to be served. Even if the Writ of
Summons had been validly issued, its purported
substituted service was invalid. As a result, the trial
court had no jurisdiction to adjudicate on it, let alone
to deliver the judgment on it. The appeal therefore has
merit and it is allowed, I set aside the purported
service by substituted means, of the Writ of Summons on
the appellant. I set aside the judgment entered on the
Undefended List on the 6th of March 2006, as the trial
court had no jurisdiction to do so, the Writ of Summons
not having been validly served on the appellant to
enable him defend same. Furthermore, the issue of the
Writ of Summons itself was invalid and so it is set
The Cross-Appeal has been allowed. This is because the Motion to set aside the judgment, was not signed by a known legal practitioner. This may well be.
It is not the function of the court to embark on an academic exercise. Here, the Cross-Appeal had become spent since the main appeal has succeeded and the Writ of summons, together with its purported service, have been declared null and void and therefore of no effect. They have been set aside. So the consideration of the Cross-Appeal was therefore not even necessary. But since it has been considered and allowed, it still does not add any value to the fortunes of the Cross-Appeal. It should be noted that the cross-appeal was not a preliminary Objection to the hearing of the appeal, based on the fact that the Motion to set aside the default judgment was invalid. The Main appeal has been heard and determined. The Cross-Appeal which came later in time, has no "practical utilitarian value" to the Cross-Appellant. It is a mere academic exercise. See NKWOCHA VS. ANAMBRA STATE (1984) 1 SCNLR 634 and PLATEAU STATE VS. A.G FEDERATION (2006) 3 NWLR (Pt. 967) referred to in SHETTIMA VS. GONI (2011) 18 NWLR (Pt. 1279) 414. The Cross-Appeal is but a phyrric victory.
I abide by the orders as to costs.
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