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In The Supreme Court of
On Friday, the 18th day of
January 2008
Before Their Lordships
S.C.
391/2001
Judgement of the Court
Delivered by
Niki
Tobi. J.S.C.
Leo Attah
Ekpo was the original defendant in this case.
Following his death, Ekanem
Ekpo Otu was substituted to take his
place. That was on 16th September, 1997 in the Court of Appeal. A
dead man is not in a position to handle or follow litigation. He lacks the
capacity to be a party in litigation.
The matter, which was
commenced in the High Court of Lagos State, was for the recovery of the sum
of
On 6th February
1991, Leo Attah Ekpo
brought an application to set aside both the judgment entered against him on
10th October, 1988 and the order of sale of 19th
January, 1990. The learned trial Judge granted the prayers. In the Ruling,
Sotuminu, J. (as she then was) said at page 132
of the Record;
"It is my view that having
failed to comply with the Order of this court that the statement of claim be
served on the Defendant by pasting, the Judgment obtained
therefrom should not be allowed to stand. I have
inherent jurisdiction to set aside my Judgment made on the 10th
day of October, 1988 because of the said non-compliance of my Order and the
said judgment is hereby set aside accordingly. See
Adegoke
Motors vs. Adesanya (1989) 3 NWLR Part 109
page 250 at page 273."
The learned trial Judge
thereafter made the following orders and I read six of the seven orders:
"1.
The Judgment in default given against the Defendant by this Court on
the 10th day of October 1988 is hereby set-aside.
2.
The Order for sale of the Defendant's property made on the 29th
day of January 1990 based on the said Judgment is also hereby set-aside.
3.
The Plaintiff is hereby ordered to serve the Defendant the statement
of claim as previously ordered by this Court within 7 days from today,
4.
The Defendant shall file the statement of defence within 14 days
thereafter.
5.
The
Plaintiff shall file a Reply if necessary within 7 days thereafter.
6.
This matter will be heard on its merit and must be given accelerated
hearing in the interest of justice."
Dissatisfied, the
plaintiff/respondent appealed to the Court of Appeal. In that court,
Alhaji Kabiru
Rufai applied for extension of time to appeal as
of right against the Ruling of the learned trial Judge. He was not a party
to the proceedings in the High Court. He decided to appeal because he was
the beneficiary of the annulled auction sale. The Court of Appeal granted
the application by extending the time to appeal by fourteen days. The Court
of Appeal then heard the appeal on its merits and allowed it. This is an
appeal against the ruling and the judgment of the Court. Briefs were filed
and exchanged. Appellant formulated the following four issues for
determination:
"B.1.
Whether the respondents (i.e. the plaintiff and the 3rd
party) had a right of appeal from the High Court to the Court of Appeal
against the ruling of the trial court of 17/5/1991, and if they had such
right whether it was one that could be exercised without leave of either the
trial High Court or the Court of Appeal?
B.2.
Whether the ruling and the judgment of the Court of Appeal denying
the defendant hearing on merit are not unconstitutional and have not
occasioned miscarriage of justice to the defendant/appellant?
B.3.
Whether from the record before the trial court the Court of Appeal
was justified in upsetting the trial court's ruling that the statement of
defence was not served?
B.4.
Whether Alhaji
Kabiru Rufai was a proper party in the
proceedings before the trial court."
The respondent formulated the
following single issue for determination:
"Whether
the Court of Appeal was right to hold that the procedure under O.9 of the
Lagos State High Court (Civil Procedure) Rule 1972 did not make the service
of the Statement of Claim on the defendant, absolutely necessary for a
judgment in default of appearance to the Writ of Summons."
Learned counsel for the
appellant, Chief Orok
Ironbar, submitted on Issues Nos. 1, 2 and 4 together that the
respondent and the 3rd party intervener, under
sections 220(1)(a)(b),
221(1) and 222 of the 1979 Constitution, can only appeal with leave of
either the trial court or the Court of Appeal. He referred to
section 241(2)(a) of the 1999
Constitution, and the cases of
Nishizawa
Ltd, v. Jethwani (1995) 5 NWLR (Pt. 398)
668; National Bank of Nig. Ltd, v.
Weide and Co. (Nig)
Ltd. (1996) 8 NWLR (Pt. 465) 150;
Odu v. Aqbor-Hemeson
(2003) 2 NWLR (Pt. 804) 355; Mohammed
v. Olawunmi (1990) 2 NWLR (Pt. 133) 458 at
480; Auto Import Export v. Adebayo
(2003) 2 MJSC 44;
The Nigerian Air Force v. Wing
Commander Shekete (2003) 2
MJSC 63.
Learned counsel submitted that
the 3rd party/intervener was not a proper party in the main suit
as he was not named in and was not concerned with the main claims before the
court. He referred to
Lebile
v. The Registered Trustees of Cherubim and Seraphim Church (2003) 2 NWLR
(Pt. 804) 399;
Ochonma v. Unosi (1965) NMLR 321
and
Intercontractors Nig. Ltd,
v. UAC (Nig) Ltd. (1988) 2 NWLR (Pt. 76) 303.
Learned counsel contended that
an appeal is not the inception of a new case. Accordingly, the issue of the
purchased property, not being before the trial court for consideration,
cannot be subject of an appeal concerning the proceedings before the trial
court. He referred to
Ifeanyi
Chukwu (Osondu) Nig.
Ltd, v. Soleh Boney
Ltd. (2000) 5 NWLR (Pt. 656) 322. Arguing that the appellant was
denied fair hearing in the Court of Appeal, counsel referred to section
33(1) of the 1979 Constitution and the case of
Offor v. State (1999) 12 NWLR (Pt. 632) 608.
On Issue No. 3, learned
counsel submitted that the Court of Appeal was not justified in setting
aside the ruling of the trial Judge based on the non-service of the
statement of claim. He referred to
Jonason
v. Charles (2002) 12 MJSC 1;
Nigerian Air Force v. Wing Commander
Shekete (supra) and
Onigbo
v. Una (supra). He urged the court to allow
the appeal.
Learned counsel for the
respondent, Chief F. O. Offia, raised a
preliminary objection on Grounds 1, 2, 4, 5, 6 and 7 of the Grounds of
Appeal. He contended that Grounds 1, 2 and 6 did not state full or adequate
details of the misdirections complained of. He
also contended that Grounds 4 and 5 do not arise from the proceedings and
the judgment of the Court of Appeal respectively. On Ground 7, counsel
argued that it is vague as no particulars are supplied. He also urged the
court to strike out all the issues formulated by the appellant for
determination based on the reasons contained in paragraph 6.08, page 11 of
the respondent's brief.
Learned counsel submitted on
the lone issue that once there is proof that the writ of summons was served
on the defendant/appellant, there being no provision in Order 9 for the
service also of the statement of claim, the order has been complied with,
and if no appearance is entered, judgment may be entered in favour of the
plaintiff. He also submitted that the Court of Appeal was right to hold that
since there was no requirement that the statement of claim must be served on
the defendant/appellant, the trial Judge erred when she set aside the orders
based on the reason that no statement of claim was not served. He urged the
court to dismiss the appeal.
In the Reply Brief, learned
counsel for the appellant argued that the grounds of appeal and the issues
attacked by counsel for the respondent are valid. Counsel submitted on the
merits of the case that the unconstitutionality of the judgment of the Court
of Appeal was not defended by the respondent. He referred to the case of
Saleh v. Monguno
(2006) 15 NWLR (Pt. 1001) 25 on the sale or
attachment of immovable property of a judgment debtor without an order of
court.
Let me take the preliminary
objection first. It is in respect of Grounds 1, 2, 4, 5, 6 and 7 and all the
three issues formulated by the appellant. Grounds 1, 2 and 6 which complain
of misdirection, contrary to the submission of learned counsel for the
respondent, contain details of the misdirection. Apart from providing for
the details in the body of the grounds, the particulars copiously provide
for the details of misdirection. The particulars specify how the Justices of
the Court of Appeal misdirected themselves. I do not agree with counsel that
Ground 2 is incompetent and should therefore be struck out. Learned counsel
did not tell this court why the ground is incompetent. The ground which
complains about misdirection is competent, and I so hold.
In Ground 4, the appellant
complained that the learned Justices of the Court of Appeal erred in their
judgment when they held that the learned trial Judge arrived at her ruling
suo motu
without calling for evidence from the parties. This ground clearly
arises from the proceedings, and so, I do not agree with learned counsel
that the ground did not arise from the proceedings.
In Ground 5, the appellant
complained that the learned Justices of the Court of Appeal relied too
heavily in their judgment on the appellant's brief relating to facts and
matters which were not established either before the trial court or before
them. Again, I do not agree with learned counsel for the respondent that the
ground is vague and does not state the error in law complained of and that
the ground does not arise from the judgment of the court. A complaint that a
court of law relied on appellant's brief relating to facts and matters not
established in the court, cannot be described as vague. Counsel is not also
correct to say that the ground does not arise from the judgment. It arises
and pages 298 to 313 of the Record vindicate the ground of appeal. It is
quite a different thing for appellant to lead evidence in proof of the
ground. I also reject the objection on Ground 7.
And that takes me to the
issues. Counsel for the appellant submitted that Issue No 1 is
inappropriate as the appeal before this court is from the Court of Appeal
and not from the High Court to the Court of Appeal. On Issue No. 2, he
submitted that the issue is couched in abstract terms without concrete
reference to the Record of Appeal and the judgment. On Issue No. 3, counsel
submitted that the issue is a repetition of Issue No. 1 and is therefore
incompetent.
Issues are formulated from
grounds of appeal and if they are based on valid grounds of appeal, an
appellate court must consider them. See
Idika
v Erisi (1988) 2 NWLR
(Pt. 78) 563; Management Enterprises
Ltd, v. ABC Merchant Bank (1996) 6 NWLR (Pt. 452) 249;
General Oil Limited v. Chief
Ogunyade (1997) 4 NWLR (Pt. 501) 613;
Chiwuba
v. Alade (1997) 6 NWLR (Pt. 507) 85;
Madumere
v. Qkafor (1996) 4 NWLR (Pt. 445) 637;
Shie
v. Lokoja (1998) 3 NWLR (Pt. 540)56.
An appellant has the right to
complain at the Supreme Court on error in the High Court where the
intermediate Court of Appeal, in its view, did not correct the error but
rather justified it in its judgment. In such a situation, there is nothing
wrong to trace the error from its origin, the High Court, as it is in this
appeal. That does not mean that the appellant is complaining of an error by
the trial Judge straight to this court. No. The complaint, in my
understanding, is that the plaintiff and the 3rd party had no
right of appeal from the High Court to the Court of Appeal, without leave of
either the High Court or the Court of Appeal. In other words, the complaint
is that right of appeal in the circumstances does not vest in an appellant
as a matter of course or routine but with leave of the court. This, in my
view, should be the understanding of the respondent, in which case, there
ought to be no objection. The objection therefore fails.
I do not see anything abstract
in Issue No. 2. In my view, the Issue is properly formulated or couched. It
is the contention of the appellant that the ruling and the judgment of the
Court of Appeal are unconstitutional and have occasioned a miscarriage of
justice to the appellant. I do not understand what counsel meant when he
said: "the issue making concrete reference to the Records of Appeal and the
judgment." If by this, he means that the issue must cite pages of the Record
of Appeal and the judgment, he has got it wrong. That is never the role or
function of an issue. That should be in the body of the brief arguing the
appeal. But what else does he mean? I am in some confusion.
The fault counsel finds in
Issue No. 3 is that it is a repetition of Issue No. 1. With respect, I do
not agree with him at all. While Issue No. 1 deals with leave to appeal,
Issue No. 3 deals with the locus standi of the 3rd
party/respondent. The two are kilometres apart; not proximate and so one
cannot be a repetition of the other. In my humble view, the preliminary
objection raised by the appellant is to no avail. It is struck out.
I now take the merits of the
appeal. As the Constitution which was in force when the cause of action
arose is the 1979 Constitution, that is the Constitution that I will use.
While section 220 of the 1979
Constitution provided for instances when appeal is of right, section 221
provided for instances when appeal is with leave of court. As the matter
does not come within section 220, appeal will be with leave within the
provision of section 221. Was the appeal of 3rd party/respondent
with leave of the court within section 221 of the Constitution? The
motion is at page 51 of the Record. It asked for six prayers. They are (i)
extension of time to appeal; (ii) suspending the order of
Sotuminu J.; (iii) suspending the ancillary
order of Sotuminu, J.; (iv) suspending the order
setting aside the order granting leave to sell the immovable property of the
defendant/respondent; (v) stay of further proceedings of Suits Nos.
ID/1002/87 and ID/24/55/50 and (vi) departure from the rules. There is no
prayer for leave to appeal and that violates
section 221 of the 1999 Constitution.
A party who has an interest in
an appeal from the High Court to the Court of Appeal must, under section 222
of the Constitution, seek leave of either the High Court or the Court of
Appeal to appeal. Leave, in this context, means permission. In other words,
the party must seek permission to appeal. The rationale for the provision is
to enable the court determines whether it is proper in law to grant the
party permission to appeal in the circumstances of the case. See generally
The Registered Trustees Christ
Apostolic Church Nigeria v. Uffiem (1998) 10
NWLR (Pt. 569) 312; In Re
Williams (No. 1) (2001) 9 NWLR
(Pt. 718) 329; In Re
Ojukwu (1998) 5 NWLR (Pt. 551) 673.
Where leave is required either
in the Constitution or in the rules of court, and leave is not sought and
granted, the court has no jurisdiction to grant the motion as it is
incompetent. An order on such an incompetent motion is invalid. See
Nwadike
v. Ibekwe (1987) 4 NWLR (Pt. 67) 718;
Savannah Bank of Nigeria
Pic v. Kventu
(1998) 2 NWLR (Pt. 536) 41;
Ardo v. Ardo
(1998) 10 NWLR (Pt. 571) 700; UTB v.
Odofin (2001) 8 NWLR (Pt. 715) 296;
The Nigerian Air Force v. Wing
Commander Shekete (2002) 18
NWLR (Pt. 798) 129;
REAN Pic
v. Anumnu (2003) 6 NWLR (Pt. 815) 52.
Learned counsel for the
appellant quoted what I said in the case of
Auto Import v. Adebayo (2003) 2
MJSC 44 at page 60 as follows:
"Rules of Court are meant to
be obeyed ... failure to obtain leave for extension of time to appeal within
the specified time or period is a substantial irregularity which affects the
props and foundations of the appeal. It is beyond mere technicality which
this court cannot forgive."
I have no reason to depart
from the above dictum.
The second issue is in respect
of denying the appellant a hearing on the merits before the ruling and the
judgment of the Court of Appeal were delivered. The submission here is that
the 3rd party/respondent ought to have brought an application for
joinder. As no such application was brought; the
appellant was denied a fair hearing. With respect, I do not understand the
position of counsel; I do not see how the principles of fair hearing can
apply here. I expected the principles of fair hearing to apply if the 3rd
party/respondent brought an application for joinder
and the court granted same without hearing the appellant. That is not the
complaint and that cannot be the complaint, and so, why the furore on fair
hearing? I think I can go a bit further. The 3rd party/respondent
applied to be joined as an interested party. And that application was the
basis for the ruling of the Court of Appeal at pages 87 to 100 of the
Record. It is clear from the Record that the respondent opposed the
application by filing a counter-affidavit of twenty-seven paragraphs which
the Court of Appeal in its ruling reproduced at pages 90 to 93. This apart,
one Sam I. Erugo,
argued against the application at page 94 of the Record. And so, where lays
the denial of fair hearing? A party who has opposed an application cannot
complain of fair hearing because by the opposition he has obtained a hearing
and the hearing remains fair in so far or as long as he was not inhibited in
the hearing but given all the opportunity to make his case. As there is no
complaint that the Court of Appeal did not allow the respondent to present
his opposition of the application for extension of time, the issue of lack
of fair hearing fails.
The third issue is in respect
of the ruling of the learned trial Judge on the non-service of the statement
of claim and the reaction of the Court of Appeal to the ruling. In its
judgment at pages 305 to 307 of the Record, the Court of appeal said:
"The question that has to be
determined is whether the learned trial Judge was right in setting aside the
judgment based on the reasons he gave, to wit that no Statement of Claim was
served ... In my view the procedure under Order 9 does not make the service
of the Statement of Claim necessary or absolutely indispensable or essential
to applying for a judgment in default of appearance to the writ of summons
... All what I am saying is that the learned trial Judge was wrong in
setting aside the judgment entered in default of appearance simply for the
failure to serve the Statement of Claim under the provisions of Order 9 of
the Lagos State High Court (Civil Procedure) Rules 1992 - since the judgment
was not based on the Statement of Claim."
A judgment, and this includes
a ruling, of a court of law is valid or so presumed until it is set aside on
appeal. A court of law, trial or appellate, has the power or jurisdiction to
protect its judgment by providing teeth to bite any act of interference to
weaken its legal strength of enforcement or enforceability in the
judicial process.
In the judicial process, a court of law has the power or jurisdiction
to set aside its own order in appropriate circumstances.
It has the discretion to do so and once the discretion is exercised
judicially and judiciously, an appellate court cannot interfere.
After all, the court is the owner of the order and it can do anything
with it, like every owner of property.
I do not think I will take the
fourth issue. I have got enough to allow this appeal. I say by way of
recapitulation that the 3rd party/respondent was wrongly admitted
to participate in this matter in the Court of Appeal as he did not ask for
leave to be joined as an interested party. This, to me, is the main plank
for allowing the appeal. The appeal is accordingly allowed. I award
N10,000.00
costs in favour of the appellant.
Judgment Delivered by
George
Adesola Oguntade.
J.S.C.
I have had the advantage of
reading in draft a copy of the lead judgment by my learned brother
Tobi J.S.C. I agree with his conclusion that
this appeal is meritorious. The appeal brought before the court below by the
respondents should have been struck out by the court below for the reason
that the 2nd respondent neither sought nor obtained the requisite
leave to appeal as provided under
section 222 of the 1979 Constitution. This is because the 2nd
respondent was not a party to the original suit at the High Court. See
The Registered Trustees Christ
Apostolic Church
In all cases where the
Constitution has provided that a party intending to appeal may only do so
with leave, the court has no discretion to hear
such appeal unless the necessary leave has been obtained.
See Tilbury Construction Co. Ltd. &
Anor. v.
Ogunniyi [1988] 2 NWLR (Pt. 74) 64; Enang
v. Adu [1987] 11-12 SC 25, 42;
Okagbue v. Romaine [1982] 5 S. C. 133 at
170.
I would also allow this appeal
with costs as granted in the lead judgment.
Judgment Delivered by
Francis
Fedode Tabai. J.S.C.
I have read in advance the
leading judgment of my learned brother Niki
Tobi J.S.C. and I agree that there is merit in
the appeal which ought to be allowed. The result is that I also allow the
appeal with costs which I too assess at
Judgment Delivered by
Ibrahim
Tanko Muhammad. J.S.C.
In a specially indorsed writ
of summons taken from the Lagos State High Court of Justice (trial Court),
the Plaintiff, African International Bank Limited but later changed name to
ACB International Bank Plc, made the following claim against Mr. Leo
Attah Ekpo
Otu, the defendant:
"Whereof the Plaintiff claims from the said Defendant the sum of
Now, there existed a
banker-customer relationship between the parties first above mentioned. The
plaintiff was a limited liability Company carrying on business as bankers
with its Head office at No 106/108 Broad street, Lagos and having
branches in various places in Nigeria including one at Martins Street,
Lagos. The defendant trades under the name and style of
Nigerland and Company, who was a customer of the plaintiff at its
branch office at
The Plaintiff at the request
of the defendant granted him overdraft facilities which accrued interest and
bank charges, amounted to the sum of
The Plaintiff averred that the
defendant had refused to enter appearance to the suit against him after the
writ of summons and the statement of claim were served on him. And that the
defendant had no defence to the action.
The plaintiff, as a result,
filed a motion of Notice on 5th of July, 1988, for an Order:
"Entering final Judgment as per the plaintiff/applicant's writ of summons
and statement of claim against the defendant for failure to enter appearance
to this suit.”
Judgment was entered in favour
of the Plaintiff on the 10th of October, 1998. It is to be noted
however, that neither the ruling in respect of that Motion on Notice nor the
trial court's proceedings of the 10th of October, 1998 is
contained in the printed record of this appeal. What is made available is
the enrolled order made by the trial court on same date.
On the 29th day of
January, 1990, an order was made by the trial court pursuant to a Motion on
Notice by the Plaintiff for the attachment of defendant's immovable
property. Leave was so granted to the Plaintiff/Applicant/Judgment creditor,
to attach and sell the immovable property of the
defendant/respondent/judgment debtor within the jurisdiction of the trial
court.
On the 6th of
February, 1991, the defendant/judgment debtor filed an application before
the trial court for an order setting aside the judgment of 10th
of October, 1988 and the order of 29th January, 1990, in addition
to other reliefs. On the 17th day of May, 1991, the learned trial
judge granted the prayers. The judgment of 10th of October, 1988
and the order of 29th of January, 1990 were both set aside. Some
other consequential orders were also made. Earlier on, however, and pursuant
to the court's order of 10th October, 1988 and order of
attachment of the defendant's property, one Alhaji
Kabiru Rufai,
purchased the said property for the sum of
Among the reasons given by the
defendant for seeking for setting aside was that he was never aware that an
action had been instituted against him or that judgment was obtained against
him.
It is to be noted that
although Alhaji Rufai
was listed on the Motion on Notice for setting aside as one of the 3 parties
to be served with the said Motion, no service was
effected on him. So, by the time the motion was heard and determined,
he (Alhaji Kabiru)
had not been put on notice thereof and he was never heard. As he was out of
time to take any steps in the trial court, Alhaji
Kabiru made an application to the Court of
Appeal. The Court of Appeal granted him extension of time on the 6th
of April, 1993, with which to appeal against the judgment of the trial Court
of the 17th May, 1991. Thus, Alhaji
Kabiru now became an appellant before the Court
of Appeal by filing his Notice of Appeal on the 14th of April,
1993.
On the 16th of May,
1996, ACB Plc, filed a motion before the Court of Appeal,
Dissatisfied, the
defendant/respondent and now appellant filed his Notice of Appeal which
contains 7 grounds of Appeal, praying that the decision/judgment of the
court below of 8th of April, 1998 be set aside and restore the
orders of the trial court of 17th of May, 1991.
On the hearing date of this
appeal, learned counsel for the appellant adopted and relied on the brief he
filed on behalf of the appellant. He set out four issues for determination.
Learned counsel for the plaintiff/respondent adopted his brief of argument
on behalf of the plaintiff/respondent. He too set out four issues therein.
All these issues were reproduced by my learned brother,
Tobi, J.S.C. I need not repeat them. I need not also repeat the
submissions of the learned counsel for the respective parties as these were
professionally condensed by my learned brother, Tobi,
J.S.C. in his judgment.
In my treatment of the appeal,
I will comment on one aspect which is covered by appellant's issue (3). For
the preliminary objection and the remaining issues, I totally agree with my
learned brother, Tobi, J.S.C. in his reasoning
and conclusion.
The bone of contention in
issue (3) of the appellant's issues is the setting aside of a ruling and an
order of attachment of property made by the trial Court. I think I need to
reproduce the ruling which set aside the ruling and order of 10th
of October, 1988 and 29th of January, 1990 respectively. In the
ruling of 17th of May, 1991 which appears on pages 61-65 of the
record of appeal, the learned trial Judge held,
inter alia:
"I hereby make the following orders:
1.
The Judgment in default given against the defendant by this Court on
the 10th day of October, 1988 is hereby set aside.
2.
The order for sale of the defendant's property made on the 29th
day of January, 1990
based on
the said Judgment
is also hereby set- aside.
3.
The plaintiff is hereby ordered to serve the defendant the statement
of claim as previously ordered by this Court within 7 days from today.
4.
The defendant shall file the statement of defence within 14 days
thereafter.
5.
The plaintiff shall file a Reply if necessary within
7
days thereafter.
6.
This matter will be heard on its merit and must be given accelerated
hearing in the interest of justice. "
As indicated earlier in the
Judgment, the plaintiff filed a Motion on Notice on 5th of July,
1988, praying the trial Court to enter final Judgment as per its claim in
the writ of summons and statement of claim against the defendant for failure
to enter appearance to the suit. In the affidavit in support of the Motion
on Notice, one Oval Egbighe, averred to the
following facts, on oath:
"5.
That the defendant has no defence to this action.
9.
The defendant has refused to enter appearance to this suit after the
writ of summons and statement of claim was (sic) served on him. "
In the enrolled order (made
available in the record of appeal), the learned trial judge, pursuant to the
Motion on Notice of 5th of July, 1988, made the following orders:
"It is hereby ordered as follows:
1.
that Judgment shall be entered for the
plaintiff/applicant against the defendant/respondent in default of
appearance for the sum of
2.
that defendant/respondent shall pay 15%
interest per annum on the judgment debt calculated from 1st day
of September, 1887. Until final liquidation of the
judgment debt.
3.
that defendant/respondent shall pay
Further, sequel to another
motion which was reflected in the enrolled order of 29th January,
1990, but not contained in the record of this appeal, and pursuant to which
an order of attachment of the immovable property of the judgment debtor was
made, the learned trial judge held as follows:
"It is hereby ordered that leave shall be granted the
plaintiff/applicant-judgment /creditor to attaché and sell the immovable
property of the defendant/respondent judgment/debtor within the jurisdiction
of this honourable court.”
These were the two processes
sought to be set aside by the learned trial judge and were in deed, set
aside.
On appeal to the court below,
the court below allowed the appeals; set aside the order made by the learned
trial judge on the 17th of May, 1991 and restored and upheld the
decisions made by the learned trial judge on 10th of October,
1988 and the subsequent order made on the 29th of January, 1990.
Was the court below correct in
its decision of 8th of April, 1988? Let me begin by examining the
proceedings of the trial court.
In an enrolled order, a
motion-ex parte for substituted service (motion not contained in the record
of appeal) was argued and subsequently granted by the learned trial judge.
The order made therein reads:
"It is hereby ordered that the writ of summons, statement of claim and all
other processes connected with this shall be served on the
Defendant/Respondent by pasting same on the door of the last known place of
business of the Defendant/Respondent i.e. No 20, Campbell Street, Lagos and
such service shall be deemed good and sufficient service on the
Defendant/Respondent."
This was the trial court's
order for a substituted service on the defendant. The only defendant as at
that time was one Leo Attah
Ekpo Otu (who was trading under the name
and style of Nigerland & Company). What that
order required can be summarized as follows :
(1)
the writ of Summons,
(2)
statement of claim and
(3)
all other processes connected with this
(suit),
(4)
shall be served on the
defendant/respondent,
(5)
by pasting same,
(6)
on
the door of the last known business of the defendant/respondent,
i.e No. 20
Although that order was
granted ex-parte there is no
evidence in this record that it was set aside by the same court or any other
court. That order remained valid and subsisting till when it is set aside.
That is the position of the law see:
F.A.T.B Ltd. v. Ezegbu (1992)9 NWLR (pt. 264)
132;
Ezeokafor v.
Ezeilo (1999) 9 NWLR (pt.619) 513.
In the affidavit in support of
the Motion for setting aside the said processes, the defendant, who
personally deposed to the affidavit, averred as follows:
"
1.
That I returned to Calabar after my retirement
from the Federal Civil Service about 1970 from where I visit Lagos very
infrequently.
2.
That the premises known as
No 24 Western Avenue, Surulere,
3.
(a)
That on Monday the 27th day of November, 1990 one Innocent
Nwokeomah who is a Clerk with the firm of
Solicitors of Orok Ironbar
& Associates of 11, King Street, Calabar rushed
to me at my residence in Calabar to state that a
phone call from their Lagos office indicated that my said property was about
to be sold by auction.
(b)
That this information met me on my sick bed as I have been ill in the
last few years.
4.
That as I was startled by this information as I do not recall any
reason for such Auction nor do I owe any person(s). I knew that there was
urgent need to restrain the defendants from selling my property.
5.
That as I was ill and could not immediately get money to travel to
Lagos my family members advised me upon which I contacted Messrs
Orok Ironbar &
Associates (Solicitors) to institute action on my behalf and stop the said
sale. Copy of the writ of summons is attached hereto Exhibit 'A'.
6.
(a)
That I have never been served with Notice, Summons, Motion, letters
or any either document indicating that there was any dispute over my
property. I also had no knowledge whatsoever of any pending suit against me
by African Continental Bank.
(b)
That only after notice of the said irregular Auction did my son
Ekanen Ekpo
Otu go to search at the High Court registry and
discovered enrolment order of 29/1/90 Exhibit 'B' attached. My said son also
resides within the property.
(7)
That I am opposed to the said sale by Auction of my property and I
know that the said auction exercise must be orchestrated by the respondent
with irregular intent because it is to the knowledge of the respondent and
all my business associates and friends that I am now resident in
Calabar. "
However, in the
Counter-affidavit filed on behalf of the plaintiff (Judgment
creditor/respondent, one Aijo
Ikuesan, a litigation Clerk in the law firm of
Afam Nwobodo & Co.
averred as follows:
"2.
That I have the authority and instructions of our Client, African
Continental Bank Limited to make this counter-affidavit.
3.
That the defendant/judgment debtor/applicant was as at 31st
of July, 1987 indebted to our Client, African Continental Bank Limited to
the tune of Ninety Nine Thousand Six Hundred and Fifty Three Naira, Eighty
Five Kobo only (
4.
That the known business address of the defendant/judgment
debtor/applicant was No 20 Campbell Street, Lagos.
5.
Furthermore, that the plaintiff/judgment creditor/respondent sent
regular statements of Account of the defendant/judgment debtor/applicant to
the said address and none of these statements of Accounts was returned
unclaimed.
6.
That pursuant to paragraph 5 above, all the processes arising from
the above-stated suit was served on the defendant/judgment debtor/applicant
at the said No 20 Campbell Street, Lagos pursuant to an order of
substituted service of this Honourable Court. The said order is hereto
attached and marked Exhibit 'A '.
7.
That in answer to paragraph 7 of the affidavit of the
Defendant/Judgment Debtor/Applicant, the Creditor/Respondent
Plaintiff/Judgment informs me and I verily believe same, that he does not
know and has never been informed, orally or in writing, that the
Defendant/Judgment Debtor/Applicant now resides in
Calabar.
8.
That the Defendant/Judgment Debtor/Applicant has never communicated
his residential address to the Plaintiff/Judgment Creditor/Respondent, save
his known business address at No 20 Campbell Street, Lagos. "
My Lords, I find it pertinent
to quote in extenso what the
learned trial judge said in his ruling setting aside his earlier decisions.
Below is what he held, among other things:
"At the hearing of the application both learned Counsel addressed the Court
and cited several legal authorities. I do not intend to go into details on
those authorities in this ruling in order not to prejudice the case itself.
I have carefully considered the affidavit and counter affidavit which I have
reproduced above in the ruling. I have also taken the pains to go through
the case file. In Paragraph 7 of the affidavit in support of the application
the Applicant deposed to the fact as follows:
"That I am opposed to the sale by auction of my property and that I know
that the said auction exercise must be orchestrated by the Respondent with
irregular intent because it is to the knowledge of the Respondent and all my
business associate and friends that I am now resident in
Calabar ".
The Respondent in its reply at
paragraph 8 of the counter affidavit states as follows:
"That the defendant/judgment debtor/applicant has never communicated his
residential address to the plaintiff /judgment creditor/respondent save his
known business address at No 20 Campbell Street, Lagos.
With this conflict in the affidavit and counter-affidavit, I found in the
case file the affidavit of service of the writ of summons sworn to by one
Akeju the bailiff of this Court that the writ of
summons was pasted at the door of No 20 Campbell Street, Lagos on the
9th of June 19 88.There is an endorsement on the copy of the said
writ that it was so pasted but there is no endorsement nor an affidavit that
the statement of claim was served on the defendant by pasting as ordered by
this court on the 14th of March 1988. At paragraph 9 of the
affidavit in support of the application for judgment brought by the
plaintiff/respondent under order 9 rules 2-3 of the High Court of Lagos
state civil procedure rule 1972 on the
..... (not
clear) which judgment was given, the plaintiff's agent one
Mr. ..... (name
not clear) sworn on oath on the 5th day of July,
1988 as follows and I quote:
'The defendant has refused to enter appearance to this suit after the writ
of summons and statement of claim were served on him'.
As stated earlier in this ruling there is no evidence that the statement of
claim was served on the defendant which in effect means that the order of
this court made on the 10n of October, 1988 that both the writ of
summons and the statement of claim be served by pasting on the defendant's
address at No. 20 Campbell Street, Lagos was not complied with. It is my
view that if a party has not been served with the statement of claim as
ordered by the court any proceedings based on it is null and void, and when
a party claims as in the present case before me, he is saying in effect that
the judgment was a nullity. See Skenconsult
vs Ukay
(1981) 1 SC page 6. Nzom
vs Jinadu (1987)
NWLR part 5 page 533.
It is my view that having failed to comply with the order of this
court, that the statement of claim be served on
the defendant by pasting, the judgment obtained
therefrom should not be allowed to stand. I have the inherent
jurisdiction to set aside my judgment made on the 10th day of
October, 1988 because of the said non-compliance of my order and the said
Judgment is hereby set aside accordingly. See
Adegoke Motors Ltd. v.
Adesanya (1989) 3 NWLR part 109 page 250 at page
273."
He set aside his earlier
decisions because one of the conditions precedent which he gave in his
ruling was not met i.e service of the
plaintiff’s statement of claim. I am in total agreement with the learned
trial judge that if a party has not been served with the statement of claim
so ordered by the court, any proceedings based on it is null and void. This
means that the learned trial judge realized that he gave judgment without
jurisdiction. It is an elementary principle of the law that any judgment or
decision given without jurisdiction is a nullity and ought to be set aside.
See: Skenconsult
Nig. Ltd. v. UKay (1981) 6 Sc.
It has been argued by learned
counsel for the respondent that once there is proof that the Writ of summons
was served on the defendant/appellant, there being no provision in
order 9 (2) and (3) of the Lagos
State High Court Rules, 1972, for the service of the statement of claim,
the order has been complied with and then if no appearance is entered, then
judgment may be entered in favour of the
plaintiff.
I think,
the essence of court rules is to facilitate the courts in arriving at
justice without undue adherence to technicalities. I do not need to set out
the requirements of order 9 (2) and
(3) of the 1972
In any event, the order
remains a valid and subsisting court's order until set aside. It must be
obeyed. As there was no proof of service of the statement of claim through
the substituted means permitted, there was no proper service of the
processes as ordered by the trial court, service of court's process is so
fundamental such that any failure to affect service of such processes can
render proceedings conducted thereunder null and
void as the Court lacks jurisdiction to adjudicate. See:
Julius Berger Plc. v Femi (1993) 5
NWLR (pt.295) 612.
I think the trial court was
not wrong in setting aside earlier decisions which it found to be in clear
disobedience or contradiction of the orders it granted earlier. It has every
right to set aside its null and void orders. See:
Sili
Yun v.
Mashi
(1975)1 NMLR 55;
Agunbiade
v. Okunnuaga
(1961)1 All NLR 110. After all,
it only asks the parties to go for a trial on the merit.
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