JUDGMENTS OF THE NIGERIAN COURTS OF JUSTICE
Restoring Nigeria's Law to Nigeria's People - One by One
1. BANK OF
1. PRINCE MICHEAL ADEWALE - ADEDIRAN
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of Honourable Justice Babs-Kuewunmi J. of the Federal High Court of Nigeria, Oshogbo Judicial division, delivered on 12th July 2012 wherein the learned judge struck out the Originating Summons taken out by the Appellant on the ground that same was not properly served on the Respondents. For the purpose of clarity, the portion of the Judgment of the court appealed against as contained on page 25 of the Record of Appeal is reproduced verbatim as follows:-
"This suit is properly commenced (sic) under the Originating Summons procedure. This leg of objection fails and I so hold.
On ground 4, I have taken a careful look at the record of service in this case. It shows that the originating processes in this suit i.e. the Originating Summons were served on one T.O. Abiola (Accountant) at Adediran Steel and Wire Industry, Ilesha on 17/2/2007 by the bailiff of this court.
Although Counsel to the Defendants entered an appearance and had taken part in this proceedings to date, it does not in my humble view constitute a waiver to the issue of proper service of the process "properly" as required by law. See F.B.N V T.S.A. Industries Ltd (2010) 15 NWLR (pt 1216) 247 at 309.
In the circumstance, the preliminary objection of
the Defendants is upheld on this ground. The service is
liable to be set aside and it is hereby set aside.
The service of the originating summons in this
case is declared improper and robs this court of its
jurisdiction to adjudicate in the substantive claim i.e.
the originating Summons. Plaintiff's case is hereby
This appeal is against the Ruling reproduced above.
For the fuller appreciation of this appeal and in
order to appreciate wherein the Justice of this appeal
lies, I shall set out the facts of the case as relating
to the proceedings in the trial court before the
judgment appealed against was returned.
The Appellants instituted the action from which
this appeal emanates at the lower court via an
originating summons dated 12th December 2007, against
the Respondents to enable the court determine the 3rd
Appellant's powers as the receiver appointed over the
assets of the 2nd Appellant by the 1st Appellant.
The court below granted an order of Injunction against the Respondents restraining them as Directors of the 2nd Appellant from interfering with the powers of the 3rd Appellant, and from dissipating the assets of the 2nd Appellant pending the determination of the suit.
The Respondents' Briefs of argument was deemed filed on 25/2/2014 by leave of this court.
Thereafter the Appellants' Learned Counsel proceeded to adopt the Appellant's Brief of Argument and to withdraw the Appellants' Reply Brief which was accordingly struck out.
It was submitted that where only the service was invalid it is the service thereof alone that should be set aside. Relying on the decisions of the Supreme Court in the following cases; Ezomo V Oyakhire (1985) 1 NSCC (pt. 1) 280 at page 282, par. 30 - 35; Nwabueze V. Obo Okoye (1988) 3 NSCC 53 at page 54; Sken Consult (Nig.) Ltd V. Ukey (1981) 1 NSCC 1; Adegoke Motors Ltd V. Adesanya & 7 ors (1989) 2 NSCC 327 at page 331 par. 5 - 30 and contended that the learned trial Judge ought only have set aside the service of the Originating Summons and nothing more as the validity of the writ and its service were distinct issues. We have been urged to therefore resolve the sole issue in favour of the Appellant and to allow the appeal and set aside the decision of the court delivered on 12th July, 2012 as being erroneous.
On his part, the Respondents' Learned Counsel argued per his Brief of Argument as adopted that the 1st Defendant/Respondent was not served personally while the 2nd Defendant/Respondent was not served at all.
that where there is a finding that the court had no
jurisdiction, the proper order was to strike out the
V. CPC (2012) ALLFWLR (pt.
607) 5.98 at 63; (SC) Babinton - Ashaye V E.M.A.
Gen. Ent. (Nig.) Ltd (2012) All FWLR (pt. 645)
256 at 292 par D -E (Court of Appeal).
That the court can neither grant more than was prayed for, nor grant what was not prayed for. The cases of Olatunji v. Owena Bank (Nig.) (Plc) FWLR (pt. 158) p. 1215 at 1225 par. E - H, A.C.B; Int'l Bank Plc V. Otu (supra) 1847 par. D - E; Ekpenyong V Nyong (1975) NSCC 28 at P. 32 - 33 par. 50 - 55; Ilona V Idakwo (2003) FWLR (pt. 171) 1715 pg. 1738 - 1739 par. H -A.
That the trial court having upheld the preliminary objection of the Respondents, it was no longer open to the court to do anything but grant the prayers of the Respondents before it by striking out the case. We are urged to resolve the lone issue in favour of the Respondents and to dismiss the appeal. Learned Counsel contended that we should not be moved by the cases cited by the Appellants as according to him the facts and circumstances of those cases are different from and not on all fours with the present case and should be discountenanced. That this court should distinguish the cases as referred from those in this case and dismiss this appeal for lacking in merit.
In this respect, I shall reproduce the paragraphs indicating the acknowledged liability by the Respondent in the matter of the suit that culminated into this appeal. Paragraph 12 (xvi) states:
21. That the Respondents have demonstrated good faith by paying more than half of their admitted indebtedness and more than 1/3rd of the Appellants/Applicants claim even when the factory (res) was under lock and key of the receiver".
I shall come to the above averments later. The Federal high Court Civil procedure Rules, 2009 procedure Rules, 2009 provides at Order 6, Rule 2 thereof as follows:-
"save as otherwise prescribed by these Rules, an
Originating process shall be served personally by
delivering to the person to be served a copy of the
document, duly certified by the Registrar as being a
true copy of the original process filed, without
exhibiting the original thereof."
That is not all. Rule (5) thereof provides thus:-
It is, therefore, clear that the Rules of court relating to service is merely a rule of procedure and not a rule of substantive law conferring jurisdiction on a court of law. There is no doubt that where there is no service of a process on a party, the court cannot continue the adjudication in his absence as to do so will violate the pillar of fair hearing, to wit, audi alteram partem and the constitutional requirement of fair hearing under the constitution. As rightly submitted by the Learned Counsel for the Respondents, any hearing or proceedings without service of the court processes renders the proceedings null and void and liable to be set aside.
See Okoye V Centre Point Merchant Bank Ltd, supra.
The cases of Madukolu V
Nkemdilim (1962) ALL NLR 581;
Equity Bank of Nig. Ltd V Hallico Nig. Ltd
(2006) ALL FWLR (pt. 337) 438 at 452 - 453 referred
to by the Respondents' Learned Counsel in arguing that
the suit at the trial was by fact of none-personal
service of the Originating Summons incompetent and the
trial Judge without jurisdiction, are cited and applied
out of context, as they are inapplicable to the facts
and circumstances of this appeal.
As this court stated per Sotonye Denton-West, JCA, PJ in its judgment in CA/AK/18M/2013 M.T.N Nig. Communications Ltd V Mrs. Taibatu Babayoye delivered on 25th day of June 2014,
"Our courts have in various occasions emphasized on substantial compliance with the provisions of our laws rather than strict compliance. This, in our view, is to avoid justice threading on a thin line scale, thereby laying foundations for enthronement of technicalities in our laws. Law, we should know is a creation of mortals. Judges like every other person are mortals who are not without weaknesses, so do litigants and their solicitors out there".
The binding necessity which is an overriding one coming on the fusion of the principles of the common law and equity in 1875 by the Judicature Act is that law shall be administered concurrently with equity and in the case of conflict, the doctrines of equity shall prevail.
which is actual and concrete Justice is Justice
personified. It is secreted in the elbows of cordial
and fair jurisprudence with a human face and fair
understanding. It is excellent to follow in our law.
It pays to follow it as it brings invaluable dividends
in any legal system anchored or predicated on the rule
of law, the life blood of democracy".
where possible, must not be allowed to be defeated by
irregularities or technicalities that could be cured
by the exercise of a court's discretion. See Ekwere V.
The State (1981) 9 SC 3.
Has the purpose
of issuing the Originating Summons not been achieved?
Although, it was not carried out strictu sensu, the pre-occupation of the trial Judge ought to have been on the need to determine the action on its merit, the parties having appeared.
What is more, the Originating process having been filed, the party i.e. Appellants had done all that they could, having paid the necessary filing fees. The trial judge acknowledged that it was served on an Accountant by the Bailiff of the trial court and apparently for the two Defendants.
"It is correct but elementary practice in our courts that when a document is brought to the court registry for filing and service and the fees accordingly paid as assessed by the registry, the party filing the document does not assume any other responsibility for filing and service of the document, except where necessary, he is called upon by the bailiff to act as a pointer to identify the party to be served with the document as a process of the court (omitted).
In this appeal, the Originating summons has been paid for relating to the issuance and service thereof and there was no longer any obligation on the Appellants. The non-strict compliance with the primary mode of service (i.e. personal service) did not occasion any miscarriage of justice, in my contrite view. I am fortified, in my view, by the erudite words of Denton-West, JCA, PJ in MTN Nig. Communication Ltd V. Mrs. Taibatu Babayode (supra) where His Lordship, of this court, stated thus:
"It is my humble view that absence of strict
compliance with the order of the lower court which the
lower court shut its eyes, has not occasioned any
miscarriage of Justice. Should the Appellant herein
allege any miscarriage of justice, then it rests upon it
to establish, otherwise this court is in tune with the
position of the trial lower court. In view of the
foregoing, this issue is hereby resolved against the
I shall not conclude without again quoting, as did my Lord Denton-West, JCA, PJ, in the erudite Judgment I have referred to supra, as the circumstances/principles of law applicable and the views expressed therein are apt and applicable to the instant appeal.
The essence and
raison d’etre of law in society has been restated in Buhari V Obasanjo
17 NWLR (pt. 850) 587 and adopted by this
"The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering.
Where it relies on mere technicality or outmoded or incomprehensibility in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands".
I had also in CA/AK/18M/2012 MTN Nig. Communications Ltd V Mrs. Taibatu Babayode (supra) stated thus –
"The life span of the Writ of Summons ordered to be served out of jurisdiction had not expired and the said process was still valid and subsisting at the time of service and was properly endorsed; albeit served beyond the period ordered. The court of trial had the discretion and jurisdiction to jettison or condone the service outside the period ordered in the interest of Justice as he did.
The Respondent had no fault therein the service, nor was the Appellant prejudiced in any way. Justice, substantial justice is the basis for the judicial process. See the State V Gwonto (1983) 1 SCNLR 142; British American Insurance Co. Ltd V Edeman-Sillo (1993) 2 NWLR (pt. 277) 567".
This thought applies to the instant appeal perfectly and as a fitting garment. The Respondents' Counsel's submissions that the Ruling of the trial court was a Judgment and not a mere Ruling is of no consequence or relevance, nor is his simplistic arguments (with profound respect) that the court granted the relief as sought, as it after all, had no right to alter the relief, tenable. All other arguments raised, though valid in some instances did not address the Justice of this appeal in the slightest.
agree with the Appellants, submissions and resolve the
lone issue argued, in favour of the Appellants and
against the Respondents.
In consequence, this appeal is allowed as it is meritorious. The Judgment of the trial court delivered on 12/7/12, striking out the case of the Appellant i.e. Suit No. FHC/OS/CS/38/2007 is set aside and in the stead of the said order "striking out", I hereby substitute an order that the said suit be restored to the cause list of the Federal High Court Osogbo and to be heard on its merit by another Judge of the court at Osogbo or as may be determined by the Chief Judge of the Federal High Court.
The facts and
the law in this appeal hive been so exhaustively dealt
with in the judgment of my learned brother Mohammed Ambi-Usi
Danjuma, JCA and with which I am in entire
agreement that I need no further expatiation thereof.
This is without prejudice to making my own few comments
especially on the issue of service.
There is no
doubt whatsoever that the Appellant did not comply with
the mode of service as prescribed by the provision of Order 6, Rule 2 of
the Federal High Court Civil Procedure Rules, 2009
which provides thus:
"Save as otherwise prescribed by these Rules, an originating process should be served personally by delivering to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original process filed, without exhibiting the original thereof."
Meanwhile the record 'of proceedings shows that the originating summons were served by the court's bailiff on one T. O. Abiola, an accountant at Adeniran Steel and Wire Industry, Ilesha on 17/2/2007 who received the processes on behalf of the two Respondents, contrary to the aforementioned provision that states "shall be served personally...."
"Where a writ of summons is served outside jurisdiction without leave of the Judge or court and a defendant enters an unconditional appearance on the strength of the irregular service, this would constitute a waiver." (Emphasis mine)
In any case, the
trial Judge even if excused for not deciding this act to
amount to a waiver ought not to have ordered for a
striking out as this would only make matters worse by
creating substantial injustice to the Appellants.
I give no order as to costs.
I read before now in draft of the judgment of my learned brother M. A. Danjuma JCA and agree entirely with it.
A writ of
summons may be valid while its service, leading to this
appeal may suffer from some defect. Where the writ of
summons has been regularly issued without compliance
with the Sheriffs and Civil Process Act what is void and
to be set aside is the service and not the writ itself.
See Owners of the Mr "Arebella" V. Nigeria Agricultural
Insurance Corporation (2008) 11 NWLR (pt 1079) 182.
However, its order setting aside the service was proper.
I too allow the
appeal and set aside the order of the Lower Court
striking out the suit.
The suit is hereby restored to the cause list of the Federal High Court Osogbo and to be heard on the merit by another Judge of the Court at Osogbo or as it may be determined by the Chief Judge of the Federal High Court.
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