Barnabas Nwadiaro & Ors V. The President and Members of Customary Court Ossomala (2016)
LawGlobal-Hub Lead Judgment Report
EMMANUEL AKOMAYE AGIM, J.C.A.
On 21-8-2000, the Ossomala Customary Court at Ossomala, Anambra delivered judgment in suit No. CCOS/22/98 in favour of the 2nd set of respondents herein as plaintiffs against the appellants herein as defendants in the following terms-
“1. It is abundantly clear that the part and parcel of land called Ani-Ufu belongs to Umunzerobi family in Ogwu Aniocha.
2. The Court therefore ordered perpetual injunction restricting the defendants Umu Onwuka Edimmili family of Umunkwocha village of Oguta, their agents, servants from committing further acts of trespass in any manner whatsoever without the express permission from the plaintiffs.
3. The Court has therefore ordered the defendants to pay a fine of (N1,000.00) to the plaintiffs.
4. A fine of (2000.00) is hereby imposed on the defendants by the Court as Court fine.
5. The Court finally stresses that any of the parties that is not satisfied with this judgment is free to appeal to any other higher Court within 30 days of this judgment.”
?With the leave of the trial Court granted on 6-3-2006, the appellant by a motion on
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notice filed on 16-3-2006 applied for-
1. An order of certiorari removing the entire proceedings and judgment of the Customary Court of Ossomala in Ogbaru Local Government Area of Anambra State in suit No. CCOS/22/98 for the purpose of being quashed on grounds of bias and want of jurisdiction.
2. An Order quashing the proceedings and judgments in the Ossomala Customary Court in suit No CCOS/22/98.
And for such further orders as the Honourable Court may deem fit to make in the circumstances of the case.
The grounds for seeking the reliefs were that the land in dispute was situate in Imo State outside the territorial jurisdiction of Ossomala Customary Court, that a similar matter in respect of the same suit land had been filed in the Anambra State High Court at Onitsha and the suit was struck out following the challenge to the Court’s jurisdiction to entertain it, that the Ossomala Customary Court refused the appellant’s counsel audience in the proceedings before it, that the 2nd set of respondents and the judges of Ossomala Customary Court are all from Ogbaru Local Government Area of Anambra State and that the suit No.CCOS/22/98 at the
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Ossomala Customary Court was statute barred.
Upon the application of the appellants, the trial Court on 8-6-2006 ordered that- “That leave be and is hereby granted to the Applicants to effect the service of the Originating Motion on Notice and all other processes in this suit on the 2nd set of Respondents by substituted means by pasting them on the notice Board on the premises of the Headquarters of Ogbaru Local Government at Atani, Ogbaru Local Government Area of Anambra State.
On 12-5-2009, this Court heard only the appellants herein and granted the application for certiorari in the following terms
1. That this application hereby succeeds.
2. The proceedings and judgment delivered by the Ossomala Customary Court in suit No CCOS/22/98 is hereby quashed.
3. No Order as to costs.
The 2nd set of respondents by a motion on notice filed on 6-4-2010 in MISC suit No.O/45m/2010 applied for-
1. Extension of time within which to seek the order of Court setting aside the Ruling delivered by this Court on the 12th day of May, 2009.
2. An order of Court setting aside the Ruling entered in suit No.O/20m/2006: Barnabas Nwadiaro &
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4 Ors Vs Ajie Samuel Ajadobi & 6 Ors by this Court on the 12th day of May, 2009 in their absence and to hear the matter afresh under the ground that the trial was a nullity.
The 2nd set of respondents by another motion on notice filed on 25-10-2010 in MISC Suit No O/990m/2010 applied for-
“1. An order striking out motion No.O/45m/2010 earlier filed in this suit
2. Extension of time within which to seek the order of Court setting aside the Ruling delivered by this Court on the 12th day of May, 2009.
3. An order setting aside the order for substituted service granted by this Court on 8th June, 2006.
4. An order of Court setting aside the Ruling entered in Suit No.O/20m/2006: Barnabas Nwadiaro & 4 Ors vs. Ajie Samuel Ajadobi & 6 Ors by this Court on the 12th day of May, 2009 in their absence and to hear the mater afresh under the ground that the trial was a nullity.”
?On 3-11-2010, the appellants filed a notice of preliminary objection to the motion in MISC Suit No. O/990m/2010 on the grounds that the motion is incompetent and an abuse of the Court process having regard to the pendency of motion No.O/45m/2010 before the
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trial Court and that the Court lacked the jurisdiction to entertain the motion as presented. On 5-6-2012, the trial Court delivered its ruling on both the preliminary objection and the application to set aside the judgment together. It dismissed the objection, determined and granted the application to set aside the trial Court’s judgment of 12-5-2009.
Dissatisfied with this ruling, the appellant with the leave of the trial Court, commenced this appeal No. CA/E/294/2012 on 19-6-2012 by filing a notice of appeal containing 4 grounds for the appeal.
All parties herein have filed, exchanged and adopted their respective briefs. The appellants’ brief raised the following issues for determination namely-
1. Whether the Lower Court was right in dismissing the preliminary objection filed by the Appellants to the competence of Motion No.O/990m/2010?
2. Whether the Lower Court was right in merely striking out motion No. O/45m/2010 rather than dismissing the same?
3. Whether the Lower Court was justified under the law, in setting aside the judgment delivered on 12/5/2009 in suit No.O/20m/2006.
?The 1st set of respondents’ brief raised the
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following issues for determination-
1. Whether the Court below was right in dismissing the preliminary objection filed against motion No. O/990m/2010.
2. Whether the Court below as right in striking out motion No.O/45m/2010.
3. Whether the Court below was justified under the law in setting aside its decision delivered on 12-5-2009 so that the suit can be heard on the merit.
The 2nd set of respondents’ brief raised the following issues for determination:
1. Whether the trial Court was right in dismissing the preliminary objection filed against Motion No. O/990m/2010 in this Suit.
2. Whether the trial Court was right in striking out motion No.O/45m/2010 instead of dismissing it.
3. Whether the 2nd set of Respondents are in law entitled to have the Ruling delivered on 12th May, 2009 in this Suit set aside and the matter ordered to be heard afresh?
The 2nd set of respondents on 31-5-2013 filed a separate notice of preliminary objection under Order 10 of the Court of Appeal Rules. It is supported by an affidavit of 15 paragraphs and a written address of same.
?The 1st set of respondents on 17-7-2013 filed an affidavit of
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paragraphs and a written address supporting the 2nd set of respondents’ preliminary objection.
I will consider the said preliminary objection before delving into the merits of this appeal.
The grounds for the 2nd respondents’ preliminary objection are that –
1. The dismissal of suit No.O/503m/2000 robbed the trial Court’s jurisdiction to hear suit No.O/20m/2000
2. The 1st set of respondent is not a juristic person.
3. Suit No.O/20m/2006 is defective and incompetent in that no extension of time was sought before hearing commenced.
4. Suit No. O/20m/2006 is statute barred.
This preliminary objection is not against this appeal. It is rather against the originating suit No O/20m/2006 from which this appeal arose. The question that arises at this juncture is whether a notice of preliminary objection against the suit from which an appeal arose can be filed in the said appeal under Order 10 of the Court of Appeal Rules, 2011.
?It is glaring from the words of Order 10 Rule 1 of the Court of Appeal Rules, 2011 that it provides only for preliminary objection to the hearing of the pending appeal in which it is made. There is nothing
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in those provisions suggesting that it provides for preliminary objection in an appeal to the hearing of the suit from which a pending appeal arose. The exact of the said Rule 1 states thusly- ?A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.
So the 2nd set of respondents’ preliminary objection in this appeal to the hearing of suit No O/20m/2006 under Order 10 of the Court of Appeal Rules, 2011 is incompetent as the said order does not provide for and does not contemplate preliminary objections in an appeal to the hearing of a suit from which the appeal arose.
The objection that suit No.O/20m/2006 is statute barred, that it is defective and incompetent in that no extension of time was sought before hearing commenced, that 1st set of respondents are not a juristic persons and that dismissal of suit No O/503m/2000 robbed the trial Court of jurisdiction to hear suit No O/20m/2006 was not
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raised in the application to set aside the trial Court’s judgment of 12-5-2009 and were not considered and pronounced upon in the trial Court’s ruling of 5-6-2012 granting the said application to set aside the said judgment.
Since the grounds for this objection do not form part of the grounds for this appeal, the 2nd set of respondents want who chose to rely on them as further grounds for affirming the ruling of the trial Court setting aside judgment of 12-5-2009 in suit No.O/20m/2006. They can do so only by the filing of a respondent’s notice of contention that the said ruling be affirmed on grounds other than those relied upon by the Court as prescribed by Order 9 Rule 2 of the Court of Appeal Rules, 2011. However, since those grounds raise fresh issues, the respondent’s notice of contention on those grounds would not be valid and competent unless, leave of Court to raise and argue the fresh issues in this appeal had first been obtained.
For the above reasons, I hold that the 2nd respondents’ preliminary objection is incompetent. It is accordingly struck out.
?I will now proceed to determine the merits of this appeal. All parties herein have
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raised the same issues for determination in their respective briefs. I will therefore determine this appeal on the basis of the issues for determination in the appellant’s brief.
Under issue No 1 Learned Counsel for the appellants argued that “In the instant case at the time motion No.O/990m/2010 was filed on 25/10/2010 by the 2nd set of respondents, motion No.O/45m/2010 earlier filed by the same 2nd set of respondents seeking the same reliefs was still pending. Also as at the time the preliminary objection of the appellants was argued, both motions still remained pending as there was no valid withdrawal of any of the motions by the 2nd set of respondents. Motions No.O/990m/2010 which thus creates a multiplicity of Motions on the same issue clearly constitutes an abuse of Court process.”
The appellants had made this argument at the trial Court in their preliminary objection. The trial Court determined the objection thusly-
?Having carefully read the affidavit in support and addresses of the learned counsel, this notice of preliminary objection was filed merely on an earlier motion which did not contain all the prayers the Applicant sought
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– O/45m/2010 to which the Applicants had sought in the present Motion O/990m/2010 will include an order striking out the same, I must say is most frivolous.
The Applicants counsel submitted that the motion pending was filed because the present Applicants’ counsel – E. O. Onyema in the notice of preliminary objection had earlier objected to counsel amending the said motion to include a prayer that was omitted and demanded a formal application, to my mind I think this is a mere ploy being adopted to delay to the hearing of the substantive motion whereby all the
Applicants including the 2nd set of Respondents are seeking to be heard in the concluded Suit No. O/20m/2006 in default of appearance for the foregoing this objection is hereby dismissed.
One thing that is clear is that both the Applicants and the 2nd set of Respondents have hinged their argument on the fact of non ? service of the originating processes in Suit No.O/20m/2006 whereby this Honourable Court delivered Judgment in default of appearance.
I do not agree with the submission of the Counsel for the 1st set of Respondents that the Court is functus officio in so far as the
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said judgment is concerned.
Having gone through the averments in the affidavit of the Applicants and 2nd set of Respondents – Order 30 Rule 4(2) under which this application for setting aside was predicated.
Order 30 Rule 4(2) of the High Court of Anambra State (Civil Procedure) Rules 2006 provides:- “Any judgment obtained where any party does not appear at the trial may be set aside by the judge upon such terms as he may deem fit” It is my view that a cause is better heard on merit more so the applicants have averred cogent reasons why they should be heard in a cause. In the interest of Justice and fair hearing, this application hereby succeeds for being meritorious.”
There is no ground of this appeal complaining against the part of the ruling of the trial Court that Learned counsel for the appellants herein had objected to the respondents amending the motion in suit No. O/45m/2010 to include an omitted prayer and demanded a formal application and that the second motion in suit No O/990m/2010 now includes the prayers omitted in the earlier motion in suit No.O/45m/2010. By not appealing against this finding, the appellants accepted it as
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correct, valid and finding. See Iyoho v. Effiong (2007) 4 SC (Pt.111) 90 and SPDC Nig. Ltd v. VX.M. Federal Ltd. & Anor (2006) 7 SC (Pt.11) 27.
The question that arises at this juncture is, whether the appellants who demanded that the respondents file a formal application to introduce the prayers missing in the motion in suit No O/45m/2010, can validly contend, that the formal application (motion in suit No.O/45m/2010) now filed by the respondents in keeping with the appellants’ demand, constitutes an abuse of process by multiplicity of two motions over the same subject matter, between the same parties, involving the same issue. I do not think so. Firstly, it is morally wrong for the appellants to make such an objection to the formal application they demanded should be filed. I agree with the trial Court that their objection is a mere ploy to delay the hearing of the motion in suit No.O/990m/2010. As held by the Supreme Court in Ajide v. Kelani (1985) 3 NWLR (Pt.22) 248 at 269 “Justice is much more than a game of hide and seek. Justice will never decree anything in favour of so slippery a customer as the present defendants/appellants.” Secondly, there
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is nothing wrong in law for a party who had filed a process, to subsequently file a similar process with the aim of withdrawing the initial one and proceeding with the new one. This cannot by any stretch of imagination amount to abuse of Court process by multiplicity of actions. This is moreso where the adverse party demanded for the filing of the second motion. The respondents had applied for the withdrawal of the first motion in prayer one of their second motion in suit No.O/990m/2010. Glaringly there was no want of bona fide on the part of the respondents in making the formal application in suit No.O/990m/2010. The respondents had manifested a clear intention to pursue their application by only one motion and not two. As held by the Supreme Court in Amaefule & Anor v. State (1988) 2 NWLR (Pt.75) 156 at 177 “to amount to an abuse of process, the proceeding or step in the proceeding complained of, will in any event, be lacking in bona fides. It has to be an improper use or perversion of process after it had been issued. The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly issued process, civil
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or criminal, for a purpose and to obtain a result not lawfully warranted or properly attainable thereby.” These elements are completely absent here. see also Edet v. State (1988) 4 NWLR (Pt. 91)722 at 738.
In the light of the foregoing, I resolve issue No 1 in favour of the respondents.
Let me now consider issue No 2.
Under this issue Learned Counsel for the appellant argued that the respondents’ application for the withdrawal of the motion in Suit No. O/45/2010 made, after issues have been joined on the motion by both parties in that the appellants had raised a valid defence that was bound to defeat the application and the motion had been fixed for hearing, should have been dismissed by the trial Court and not struck out as it did. For this submission, he relied on Rodrigues v. The Public Trustee (1977) 4 SC 29, Eronini v. Iheuko (1989) 3 SC (Pt 1) 30 at 55 and 59, Ekudano v. Keregbe (2008) 159 LRCN 108 at 115, 116, 118 – 119.
?Learned counsel for the respondents has argued in reply that the two motions in question were motions in action and therefore interlocutory applications, that being motions in action, they cannot be amended by filing a
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motion to effect the amendment sought or desired, that amendment of interlocutory motions are effected by either withdrawing an earlier motion and filing a new one or filing a fresh motion with indication that the earlier motion be struck out, that no rule of procedure is violated by adopting any of the procedures stated above and that this explains why the appellants were unable to refer to any rule of law prohibiting the filing of motion No.O/990m/2010 and withdrawing motion No.O/45m/2010. He relied on Benjamin Nwanguma v. Godwin N. Odoemena (1978) 1 MSLR 120 for this submission.
Motion on notice can be amended like any other process of Court. I do not agree with the submission of Learned counsel for the respondent that it can only be amended by substitution. It can be amended by insertions and alterations therein or by substituting it with a fresh motion. In practice, where a party files a fresh process or motion to substitute an earlier one, he applies to withdraw the earlier one. There is nothing in the Anambra State High Court (Civil Procedure) Rules, 2006 prohibiting such a procedure. I do not agree with the submission of Learned counsel for
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the appellants that a suit or motion withdrawn after a defence thereto has been filed should be dismissed and not struck out. There is no part of the Anambra State High Court (Civil Procedure) Rules 2006 providing that a suit or motion withdrawn after the parties have joined issues should be dismissed and not struck out. Even originating processes can be withdrawn with leave of Court after a defence has been filed. This is provided for in Order 23 Rules 3 of the said 2006 Rules as follows-
“Where a defence has been filed, the plaintiff may with the leave of a Judge discontinue the proceedings or any part thereof on such terms and conditions as the Judge may order. The Court hearing an application for leave may refuse the application whereupon if the party refuses or fails to proceed, the Court shall dismiss the action or the claim and award costs to the deserving party.”
The suit can only be dismissed where the application to withdraw it is refused and the plaintiff refuses to prosecute his case. In the instant case, though not involving an originating process, but an interlocutory application, leave to withdraw motion No O/45m/2010 was granted by the
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trial Court. So there was no basis for its dismissal even within the terms of Order 23 Rule 3 which is applicable to suits or other originating actions. Generally, the proper order to make where an interlocutory application is withdrawn is to strike it out. Where a fresh motion is filed to be heard in place of a pending motion, the applicant is at liberty to withdraw the earlier motion and upon such withdrawal, it would be struck out, so that the fresh motion can be heard.
The judicial authorities ofRodrigues v. The Public Trustee (supra), Eronini V. Iheuko (supra) and Ekudano v. Keregbe (supra) cited by Learned counsel for the appellants did not lay down any law that a suit and even interlocutory applications cannot be withdrawn after the opposing party has filed a defence thereto and if so withdrawn must be dismissed. Those cases rather held that a plaintiff can with leave of Court withdraw his case after the defendant has filed his defence and state the law on how judicial discretion to grant such leave should be exercised by the Court.
In the light of the foregoing issue No 2 is resolved in favour of the respondents.
?Let me now consider issue
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No 3.
The part of the ruling complained against under this issue reads thus- “One thing that is clear is that both the applicants and the 2nd set of respondents have hinged their arguments on the fact of non-service of the originating processes in suit No. O/20m/2006 whereby this Honourable Court delivered judgment in default of appearance.
I do not agree with the submission of the counsel for the 1st set of respondents that the Court is functus officio in so far as the said judgment is concerned. Having gone through the averments in the affidavit of the applicants and 2nd set of respondents-Order 30 Rule 4(2) under which this application for setting aside was predicated.
Order 30 Rule 4(2) of the High Court of Anambra State (Civil Procedure) Rules, 2006 provides:-
‘Any judgment obtained where any party does not appear at the trial may be set aside by the judge upon such terms as he may deem fit?
It is my view that a cause is better heard on merits more so the applicants have averred cogent reasons why they should be heard in a cause.
In the interest of justice and fair hearing this application hereby succeeds for being
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meritorious.”
There is no ground of this appeal complaining against the decision of the trial Court that the respondents adduced cogent reasons why their application should be granted and that in the interest of justice and fair hearing the application succeeds for being meritorious. By not appealing against the decisions that the respondents adduced cogent reasons and that in the interest of justice and fair hearing the application should be granted, the appellants accepted the decisions as correct, valid and binding upon it. See Okotie-Eboh v. Manager (2004) 11 – 12 SC 174, Iyoho v. Effiong (2007) 4 SC (Pt.111) 90, Biariko & Ors v. Edeh – Ogwule & Ors (2001) 4 SC (Pt.11) 96 and Adejobi & Anor v. The State (2011) LPELR – 97 (SC).
It was on the basis of the above unchallenged decisions that the trial Court decided to set aside the judgment. Without challenging the basis for the decision to set aside the judgment, there can be no valid complain against the said decision to set aside. The appellants who did not challenge the basis for the decision cannot validly contend as he has done in ground 4 of this appeal that the trial Court erred in
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law for setting aside the judgment when no justifiable grounds were established under the law for setting aside of the said judgment.
Without appealing against the decisions that cogent reasons were averred by the respondents that justify the grant of the application and that the interest of justice and fair hearing justify the setting aside of the judgment, ground 4 of this appeal remain unarguable and issue No 3 and the arguments thereunder are incompetent. An appellant who has not appealed against a particular decision, holding or finding, cannot competently argue contrary to such decision, holding or finding. See Awote & Ors v. Owodunni & Anor (1987) 5 SC 1 and Sparkling Breweries Ltd & Ors v. UBN Ltd (2001) 7 SC (Pt.11)146.
My above holding notwithstanding, I will still proceed, out of abundance of caution, to consider the merits of issue No 3 and arguments thereunder as if ground 4 of this appeal raised a valid complaint against the trial Court’s decision to set aside the judgment of 12-5-2009 in suit No. O/20m/2006.
?Learned counsel for the appellants has argued that ?the only ground relied upon by the 2nd set of
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respondents as their reason for being absent at the hearing is the allegation that they were not served with the originating and other processes in the suit.” It is not in dispute that following an application for substituted service made by the appellants, the Lower Court made an order that the originating as well as other Court processes in the suit should be served on the 2nd set of respondents who were 2nd defendants in the suit by substituted means, that is, by pasting them on the notice board of Ogbaru Local Government from where the 2nd set of respondents hail and reside. In accordance with the said Order of Court, the originating and other Court processes in the suit were pasted on the notice board of Ogbaru Local Government as service of the said processes on the 2nd set of respondents.
The 2nd set of respondents in paragraphs 3 to 14 of their affidavit in support of their application to set aside the judgment, explained that they had no knowledge of the existence of those processes, were not aware of the pendence of the said suit and the date it was to be heard and so were absent from Court. The said paragraphs state thusly-
(3) “That
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because we were not served with the originating motion for the said application nor with any process thereto, we were unavoidably absent from Court when the matter was heard and determined.
(4) That it is only in December, 2009, at the premises of shell Petroleum Development company (Nig) Ltd. Port Harcourt that one Mr. Boye Adeyemi, staff of the regal department of the company handed over a copy of the said ruling to our Solicitor, K. A. Nwakuche Esq. in my presence.
(5) That it was, then, that we became aware of this proceeding filed by the 1st set of respondents (hereinafter referred to as “the respondents”)
(6) That because of the land dispute was have with the respondents, the respondents therefore forwarded a copy of the said ruling to Shell Petroleum Development Company (Nig) Ltd. Port Harcourt in order to forestall our recognition by Shell as its landlords and also to stop the payment about being made to us by the company.
(7) That on receipt of the ruling, we discovered to our dismay that there was an order of this Court to serve us by pasting the originating summons and the other processes in the suit on the notice board at the
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premises of the Ogbaru Local government headquarters, Atani.
(8) That because of the medium of service employed, i.e. the substituted service, w? had no notice of the suit and so were not in Court to contest the suit.
(9) That it was about 7 months after the ruling had been delivered that we were in receipt of the ruling and so became aware of its existence.
(10) That I have read the Ex-parte Motion with its accompanying affidavit used in securing the said order for substituted service and state that most of the facts stated thereof are false and misleading in that:
a. The names of the bailiff and the two police officers who informed the deponent of our violent nature and disposition were not given or mentioned in the affidavit
b. The purported efforts of the respondents to serve us which proved abortive were not mentioned or disclosed for their verifications; and
c. It is unlikely that obi, the bailiff, reached our town, Ogwu Aniocha, but failed to locate our residence or place of abode because of the terrain. The said motion with the accompanying affidavit is hereby attached and marked Exhibit B.
(11) Our said Counsel
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informs me and I verily believe him that the two Ex-parte applications filed by the respondents and upon which this suit was founded was not made in compliance and/or in accordance with the Anambra state High Court Rules. The other said motion filed for leave to commence this suit is hereby attached and marked Exhibit C.
(12) That because of the multiplicity of cases we had with the respondents in Courts, there were no ground for the substituted service as:-
a. All previous suits filed by the respondents against us have always been served on us by personal service. Such suits include suit Nos.O/503m/2000 and CC/OG/27/2000.
b. From the year 2000 to the year 2006, we and the respondents were engaged in a legal battle in suit No. CC/OG/27/2000. Barnabas Nwadiaaro & 4 Ors v. Boniface Uzoalu & 5 Ors at the Customary Court Kalabari Beach, Oguta, the hometown of the respondents. The suit terminated in our favour.
c. Ruling in the said suit No. CC/OG/27/2000 was delivered on the 23rd day of June, 2006, over two week after the Ex-parte Motion for the substituted service was filed in this Court on the 5th day of June, 2006 and granted on 8th
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day of June, 2006.
(13) That none of our family members is a staff of the Ogbaru Local Government; we also have no Councillor representing us at the Local Government and we seldom go to the said headquarters because of its far distance from our home.
(14) That at the time the said application for substituted service was made we were available and accessible to them (the respondents) at the Customary Court, Oguta for service of the Court process on us. Furthermore, our counsel representing us at the said Court at Oguta, K.A. Nwakuche Esq., a personal and very close friend of the respondents’ Counsel, I. Akujuobi (now late) could have been served with the processes on our behalf.
Learned counsel for the appellants has argued relying on Watt v. Bamett & Ors (1879) 3 QBD 363 at 366, Dickson v. Okoi (2003) FWLR (Pt.178) 1108 at 1119 and Rewawa v. NACB Consultancy & Finance Co. Ltd (2007) All FWLR (Pt. 349) 1111 at 1129 that the 2nd respondents’ contention that it did not get actual notice of the Court processes is not tenable in law since the processes were served on them as ordered by the Court by pasting same on the notice board of Ogbaru Local
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Government, which in law is valid and effective service. Learned counsel, relying on Abutu v. Onyedima (2004) FWLR (Pt.189) 117 at 118 argued that it is within the discretion of the Court to order the manner of substituted service to be adopted in any given case, that in the instant case, the appellants proposed 3 modes of substituted service, but the trial Court in its better wisdom chose one of the modes and ordered accordingly.
He further argued that the allegation of non-service which is the only excuse given by the 2nd set of respondents for being absent at the hearing has been debunked, that therefore they failed to justify the grant of their application to set aside the judgment of 12-5-2009 and that it has been held that once the reason for being absent at the hearing is not established, an application to set aside judgment in default of appearance must be refused. He referred to Williams v. Hope Rising Voluntary Society (1982) ANLRI and Aro v. Lagos Island Local Government Council (2000) FWLR (Pt 13) 2132 at 2152.
?Learned Counsel for the appellants further submitted that this is not a case of default judgment, but rather a case where a
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defendant who was duly served chose to stay away from Court, that a judgment given after hearing the plaintiff in such a case cannot be treated as a default judgment it becomes a judgment on the merits that is only appealable. For this submission he relied on Dickson v. Okoi (2003) FWLR (Pt.178) 1108 at 1121.
Another submission of Learned Counsel for the appellants is that the conduct of the 2nd respondent was not deserving of any sympathetic consideration as required by law to justify the setting aside of the judgment, that before the hearing of the suit in the absence of the respondents, they had been informally notified at SPDC Ltd office in Port Harcourt and therefore put on inquiry that there was a pending suit against them at the trial Court, that the 2nd set of respondents did not search the registry of the trial Court or that of Ossomala Customary Court to find out what the said suit was all about, that they rather remained non challant hoping that they can apply to set aside any judgment obtained against them on the ground of lack of actual notice of the suit.
?Another argument of Learned Counsel for the appellant is that the case of the
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respondents in the substantive suit was so manifestly unsupportable that it made it inequitable to grant the application to set aside the judgment, that the suit sought to quash the Ossomalla Customary Court judgment on grounds of lack of fair hearing in that appellants legal counsel was prevented from speaking on their behalf and lack of territorial jurisdiction in that the land was located in Imo State outside the territorial jurisdiction of the Customary Court, that the 1st set of respondents admitted that they did not give audience to Learned Counsel for the appellants and that the land is clearly outside the Customary Courts’ area of jurisdiction.
?The 1st set of respondents in their brief argued that there was ample opportunity to personally serve the 2nd set of respondents with the originating processes, but the appellants sought to effect the service of the processes by substituted means and obtained the order for substituted service and judgment in default by misrepresentation of facts, that the appellants acted malafide, that the non appearance of the 2nd set of respondents at the hearing before the judgment was not of their own making, but
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appears to be a calculated plan by the appellants to obtain the judgment behind the 2nd set of respondents.
Learned counsel for the 2nd set of respondents argued in reply that Order 27 Rule 2 of Anambra State High Court (Civil Procedure) Rules 2006 commands and makes mandatory personal service of originating summons, that Order 7 Rule 5(1) dispenses with personal service and allows substituted service only where personal service cannot be speedily effected, that the fact that at the time the order of substituted service was sought the 1st set and 2nd set of respondents herein were participating in another suit No. CC/09/27/00 at the Customary Court Kalabari Beach, Oguta, Imo State over the same land and the fact that months before the trial Court delivered its ruling on 12-5-2009, Mr Sepson Amorighoye, a staff of SPDC Ltd Port Harcourt wrote to the appellants’ counsel to furnish his office with the processes filed at the High Court and Learned appellants’ Counsel failed to do so show that the substituted service employed was wrong, improper, unnecessary and deliberately aimed at keeping the 2nd respondents out of Court by not letting them know of the
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pendence of the suit while creating the impression that the respondents had notice of the processes and chose not to respond to them or attend Court, that the appellants cannot benefit from a situation they created, that the absence of the 2nd set of respondents during the hearing before 12-5-2009 was due to no fault of theirs, that the appellants cajoled the trial Court into ordering substituted service of the originating processes on the 2nd set of respondents by claiming that the 2nd set of respondents were inaccessible due to the remoteness and marshy terrain of their place of abode and concealed or suppressed the fact that the 1st set and 2nd set of respondents were parties to a pending suit No CC/OG/27/00 over the same land at Customary Court, Kalabari Beach, Oguta in which both parties have been appearing even while the appellants were applying for the Order of substituted service, that the application for an order of substituted service was an abuse of process.
Let me now consider the merits of the above arguments of all sides.
?The first question that arises from the said arguments is whether the appellants obtained the order of substituted
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service of the originating processes on the 2nd set of respondents by misrepresentation and misprision of facts.
Order 7 Rule 2(1) of the Anambra State High Court (Civil Procedure) Rules, 2006 requires that an originating process shall be served by delivering it to the party to be served. This Rule made personal service of the originating processes on the defendant to a suit mandatory. One of the exception to this mandatory requirement is prescribed in Rule 5(1) of the same Order 7 which provides that if the Court is satisfied that prompt personal service cannot be effected, it may upon the application by plaintiff make such Order for substituted service as may seem just.
In this case the originating processes were not served on the 2nd set of respondents personally. The appellants by a motion ex-parte filed on 5-6-2006 applied for an order of the trial Court that the originating processes be served on the 2nd respondents by substituted means as follows-.
a. “By serving the originating motion and other processes on the councilor representing the 2nd set of respondents in the Ogbaru Local Government council of Anambra State for onward transmission
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to the respondent.
b. By pasting same (motion paper) in the headquarters of the Ogbaru Local Government Council.
c. By serving or the processes on K. O. Nwakuche Esq of No. 53 Agbatani Road Oguta for onward transmission to the 2nd set of respondents, being their only know council.?
The appellant in paragraphs 2 to 7 of the affidavit in support of the motion ex parte explained why it is necessary for the trial Court to order that the said processes be served on them by substituted means. The said paragraphs of the affidavit read thusly-
2. That we have made several efforts to serve the 2nd set of respondents in the originating motion with the processes of this matter but have not been successful.
3. That Mr. Obi the Bailiff of this Court who was assigned to effect the service inform me and I verily believe him that he has gone to Ogbaru Local Government Area to serve the respondents but the Court only serve the set of respondents and could not locate the place of abode of the 2nd set of respondents owing to the state of very road as a result of marshy terrain.
4. That further we have procured form S.M.11 from the High Court
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Onitsha to enable the bailiff in Magistrate Court Ogbaru who is familiar with the area to serve the processes but that the bailiff declaimed with the excuses that the area is very far (Deep inside) and that the people are quite violent.
5. That we there and then made arrangements for two police officers to accompany the bailiff to effect the service but the two policemen declaimed because of the volatile nature of the area stating that for them to go there, they must have to make a number of about 6 (six) police man with Arms and that we should apply to the state police command. These we cannot afford.
6. That I verily believe that if we hand the processes over to the councilor representing the 2nd set of respondent in the Ogbaru L.G.A. council or past the processes in the Local Government Council Headquarters at Ogbaru or hand it over to their known counsel K. O. Nwakauche Esq of No. 53 Agbatani Road Oguta Imo State the respondents will definitely be made to know of the pendency of this application in this Court.
7. That it will be dangerous for us applicants to venture in the come stead of the 2nd set of respondents as we will certainly not go
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unharmed.”
The trial Court on the basis of the above facts ordered that the originating processes in suit No O/20m/2006 be served “on the 2nd set of respondents by substituted means, by pasting them on the notice Board on the premises of the Headquarter of Ogbaru Local Government at Atani, Ogbaru Local Government Area of Anambra State.?
Paragraphs 12 to 14 of the affidavit in support of the 2nd set of respondents’ application to set aside the said ex parte order of substituted service and the judgment of 12-5-2009 states thusly-
(12) That because of the multiplicity of cases we had with the respondents in Courts, there were no ground for the substituted service as:-
d. All previous suits filed by the respondents against us have always been served on us by personal service. Such suits include suit Nos. O/503m/2000 and CC/OG/27/2000.
e. From the year 2000 to the year 2006, we and the respondents were engaged in a legal battle in suit No.CC/OG/27/2000. Barnabas Nwadiaaro & 4 Ors v. Boniface Uzoalu & 5 Ors at the Customary Court, Kalabari Beach, Oguta, the hometown of the respondents. The suit terminated in our favour.<br< p=””
</br<
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f. Ruling in the said suit No.CC/OG/27/2000 was delivered on the 23rd day of June, 2006, over two weeks after the Ex-parte Motion for the substituted service was filed in this Court on the 5th day of June, 2006 and granted on 9th day of June, 2006.
(13) That none of our family members is a staff of the Ogbaru Local government; we also have no Councillor representing us at the Local Government and we seldom go to the said headquarters because of its far distance from our home.
(14) That at the time the said application for substituted service was made we were available and accessible to them (the respondents) at the Customary Court Oguta for service of the Court process on us. Furthermore, our counsel representing us at the said Court at Oguta, K. A. Nwakuche Esq., a personal and very close friend of the respondents’ counsel, I. Akujuobi (now late) could have been served with the processes on our behalf.?
?The appellants fired a counter affidavit in opposition to the application to set aside the order and judgment and stated in paragraph 2 therein thusly- “That I have read the supporting affidavit filed on 25/10/2010 by the 2nd applicant on
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record, Boniface Uzoalu, and hereby State that the averments contained in Paragraphs 1, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 thereof are most unfair and therefore denied.?
The appellants did not do more than this general and lump denial of paragraph 12, 13, 14 and many other paragraphs of the affidavit in support of the said 2nd set of respondents, application. The appellants did not particularly answer any of the facts alleged in Paragraphs 12, 13 and 14 of the said affidavit in support of the 2nd set of respondents’ application. The appellants were clearly evasive in their said answer. Such general, lump and evasive answer by bare denial of facts specifically alleged in several paragraphs of the affidavit in support of the 2nd set of respondents’ application is no denial in law. What would have passed for a denial in law are statements of facts answering directly and clearly each of the facts alleged in the said affidavit of the 2nd set of respondents.
?The facts in paragraphs 12 and 14 of the affidavit in support of the 2nd set of respondents application to set aside the said
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order and judgment establish clearly that the 2nd set of respondents were easily available and accessible and could easily be reached without inconvenience and delay and personally served with the originating processes. These facts existed and were known to the appellants when they applied for an order for substituted service of the originating processes on the 2nd set of respondent on the allegation that the 2nd set of respondents could not be easily reached without inconvenience and delay because the bailiffs could not locate their abode, their abode is “very far (deep inside)”, the people are violent and the road to their abode is marshy. It is glaring that the appellants did not let the trial Court know that originating processes in suit No. O/503m/2009 in the same trial Court and in suit No. CC/OG/27/2000 then pending in the Customary Court in the appellant’s home town were served on the 2nd set of respondents personally, that the appellants’ suit No.CC/OG/27/2000 at Customary Court, Kalabari Beach, Oguta was still pending when they applied for substituted service of the 2nd set of respondents instead of serving them personally when they attend the hearing
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of the said pending suit at the said Customary Court and that K. A. Nwakuche who was a personal and close friend of Learned Counsel for the appellants was representing the 2nd set of respondents in the said suit at the Customary Court. It is beyond argument that these facts contradict the facts and impression relied on by the appellants to obtain the Order for substituted service and that if these facts were exposed to the trial Court, it would not have granted the Order for substituted service of the originating processes on the 2nd set of respondents. The appellants mispresented to the trial Court that the 2nd set of respondents could not be easily reached and personally served the originating processes without inconvenience and delay and misprisioned facts that disclose that the 2nd set of respondents could easily and without delay and inconvenience be personally served the originating processes so as to secure the grant of an order that the 2nd set of respondents be served by substituted means.
The trial Court has the jurisdiction to set aside any of its Order, decision or judgment obtained by means of misrepresentation and misprision or concealment
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of facts. It is settled law that a Court of record has the inherent jurisdiction to set aside its judgment, decision or order obtained by fraud or deception of the Court or one or more of the parties in the case. See Igwe v. Kalu (2002) 14 NWLR (Pt.787) 436 (SC), Tomtec Nig Ltd v. FHA (2010) All FWLR (Pt. 509) 400 at 420-442.
The fact that the appellants obviously preferred the 2nd set of respondents to be served by substituted means when it was obvious that they could have been easily served personally and the fact that they misrepresented and concealed facts to enable them obtain the said order of substituted service shows clearly that the appellants obtained the Order mala fide, to abuse the process of Court, to disable the 2nd set of respondents from having actual notice of the case, to prevent them from attending Court and to enable them obtain victory in the case behind the back of the of the 2nd set of respondents on the ground that they have refused to appear in the case or respond to the originating processes after being duly served with the said processes. Clearly the judgment of 12-5-2009 was the product of a fraud practiced on the Court by the
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appellants and therefore the trial Court rightly struck it down. I agree with the argument of Learned Counsel for the 2nd set of respondents that a party should not be allowed to benefit from his own wrong or mala fide. It is an inverterate principle of equity that ex mala dolo non oritur actio. The Supreme Court in Green v. Green (1987) 3 NWLR (Pt.61) 480 at 516 – 517 restated this principle thusly- “a Court would not allow a person to profit by his own wrong. A person may not create a crisis situation and turn around to plead the crisis in support of his interest.”
Assuming the Order for substituted service was regularly and validly obtained, I find it difficult to accept the proposition by Learned counsel for the appellants that once it is shown that originating processes have been pasted on the notice board of the Local Government as ordered, the fact that the party purportedly served by such medium cannot and did not get actual notice of the said processes would not affect the efficacy and validity of the service.
The purpose of service of Court processes on the parties to a case is to bring to their notice the pendence of the case, the contents
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of the case and opportunity to react to the said processes. Where substituted service of the processes of Court is adopted, the paramount consideration in selecting the medium of substituted service is the prospect of the processes coming to the notice of the party to be served thereby. If the party purportedly served denies knowledge of the processes and the medium ordered is such that in the circumstances of the case leaves room for doubt that the party purportedly served had actual notice of the processes, then in the interest of substantial justice such service should be set aside.
?In our present case, the decision to order substituted service of the originating processes by pasting same on the notice board of the Local Government Council did not reflect a consideration of the prospect of the processes getting to the 2nd set of respondents thereby. Paragraph 13 of the affidavit in support of their application to set aside the order and judgment state that non of their family members is a staff of the Local Government and that they have no Councilor representing them in the said Local Government and that due to the distance of their home to the Local
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Government Headquarters, they seldom visit the said headquarters. These facts were generally and evasively denied by the appellants who could not even mention the name of the councilor that was representing the 2nd set of respondents’ village or the name of any member of their village who is a staff of the local Government.
Learned counsel for the appellants made heavy weather of the fact that the 2nd set of respondents had knowledge that such a suit had been filed against them in the office of SPDC Ltd Port Harcourt and so ought to have made inquiries in the registry of the trial Court and the Ossomala Customary Court about the existence of the said suit. Attractive as this argument may appear, I do not think that the fact that a party to be served a process heard a rumour that a case has been filed against him does not mean he has actual notice of the Court processes to be served on him and does not place a duty on him in law to go on a search for the processes to be served on him in the registry of the Court where the case is filed. The law does not place such a duty on him. The argument of Learned counsel for the appellants that the 2nd set of respondents
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ought to have searched the registries of the High Court and Ossomala Customary Court to find out about the suit filed against them appear to lend credence to the fact that the 2nd set of respondents were not aware that processes against them were pasted at Ogbaru Local Government Headquarters notice board.
In the light of the foregoing, I hold that the originating processes in suit No.O/20m/2006 were not served on the 2nd set of respondents. The order for substituted service of same and the pasting of same on the notice board of Ogbaru Local Government Headquarters is invalid and of no effect.
In the absence of service of the processes originating a suit on the defendant the Court would not have jurisdiction to entertain the case or take any step therein and any proceedings conducted in the absence of the party who has not been served with originating process of Court violates his right to fair hearing and is therefore a nullity. Service of the originating process of a Court on the defendant in a suit, is both a jurisdictional and fair hearing requirement. Since the originating processes in suit No O/20m/2006 were not served on the 2nd set of
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respondents, the proceedings in that suit and the judgment of 12-5-2009 are a nullity. The trial Court rightly set them aside.
In an application to set aside a judgment on ground of non service of the originating processes on the defendants or for misrepresentation and concealment of facts, the merit of defendant’s defence to the claim by the plaintiff is not a relevant consideration because the proceedings are a nullity. So the argument of Learned Counsel for the appellants that the 2nd set of respondents have no defence to the appellants application in suit No O/20m/2006 is of no moment here. Issue No. 3 is resolved in favour of the respondents.
On the whole this appeal fails, as it lacks merit. It is accordingly dismissed. The ruling of the High Court of Anambra State delivered on 5-6-2012 in suit No.O/20m/2006 and O/990m/2010 per G. C. Anulude J is hereby affirmed.
The appellants shall pay costs of N100,000.00 to the 2nd set of respondents.
Other Citations: (2016)LCN/8687(CA)
