C.G.G. (Nig) Ltd V. Moses Amino (2005)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

Endorsed on the writ of summons issued from the Registry of the High Court of Delta State, Oghara Judicial Division on 15/6/99 is the Respondent’s claim against the appellant: “The plaintiff claim against the Defendant is for the sum of N5M (Five Million Naira), only being special and general damages (particulars of which shall be given in the Plaintiff’s statement of claim to be filed in this suit) for negligence in that nor about the month of January, 1999, plaintiff’s right wrist which became swollen excruciatingly painful and had to be operated upon on the 9th day of February, 1999, due to the tasking job assigned to plaintiff virtually useless. In spite of the knowledge of the Defendant regarding the terrible plight of the plaintiffs, the Defendant has failed, refused and or neglected to pay to the plaintiff the above stated sum of in spite of letter and personal call on Defendant. Wherefore the plaintiff claim against the Defendant the of N5M as above equitable reliefs as this Honourable Court may deem fit to grant in the circumstances.”

There is an affidavit dated 21/6/99 to the effect that the writ was served on the said 21/6/99.

The Statement of Claim was dated 30/7/99 but filed on 16/8/99. The defendant (now appellant) entered a conditional appearance on 1/11/99.

On 4/11/99, the Respondent then plaintiff filed a motion pursuant to Ord. 27 Rule 7 of the High Court (Civil Procedure) Rules of Bendel State 1988 as applicable to Delta State.

There is another affidavit sworn to on 16/11/99 to the effect that the writ of summons and motion/affidavit were served on 15/11/99. The motion was taken on 17/11/99. The relevant portion of the record of the Court below on 17/11/99 is reproduced hereunder:
“Having heard P.K. Ogbimi Esq. of Counsel for the Plaintiff/Applicant who moved his motion on Notice, the Court ordered as follows:-

‘Application granted as prayed. Final Judgment is hereby entered in favour of the plaintiff/ Appellant in whose favour Judgment is hereby entered in the sum of N5,000,000.00 (Five Million Naira) against the defendant based on special and general damages for negligence and injuries suffered by the plaintiff in the cause of his employment as an employee in the defendant’s company. In other words, judgment is entered for the Plaintiff as per paragraph 37 of the Statement of Claim.” As a prelude to its order reproduced above, the Court noted that “The writ of summons and statement of claim were filed since June/August, 99 and there has been no response since from the defendants as time allowed by the rules having lapsed.” The significance of this observation by the Court below will be made clearer in the course of this judgment.

On 24/1/2000, the appellant filed a motion asking for extension of time to apply, and an order to, set aside the defendant on 12/11/99.

There is another motion dated 27/11/2000 and filed on 28/1/2000 for an order to set aside the writ of attachment and an order to stop further execution of the default judgment.

Again on 10/10/2000, the appellant filed yet another motion for reliefs identical with the reliefs in the motion filed on 24/1/2000.

On 25/10/2000, the appellant filed another of the series of motion, this time asking for the following orders:

“1. Extending time within which applicant can apply to set aside the default judgment in this suit dated 17/11/99.
2. Setting aside the said default judgment.
3. An order setting aside the writ of attachment and/or execution including attachment of Applicants vehicles in execution of the default judgment in this suit.
4. An order discontinuing further execution of the applicant’s properties.

The Court heard the motion and in a considered ruling struck same out on 11/4/2001.
Aggrieved by the ruling, the appellant appealed to the Court on six grounds, hereunder reproduced without their particulars:
“Ground 1.
The learned Trial Judge erred in law when she adopted the bailiffs affidavit of service of the writ of summons as conclusive proof of service in the face of denial of service by the Appellant.

Ground 2.
The learned trial Judge erred in upholding the service of the motion for judgment on an unnamed secretary of Appellant Company.

Ground 3.
The learned trial Judge erred in upholding the date of service of the statement of claim disclosed in the bailiff’s affidavit as conclusive.

Ground 4.
The learned trial Judge erred and robbed Appellant of his right to fair hearing when she held that there was no defence shown on the affidavit.

Ground 5.
The Oghara High Court lacks jurisdiction to try the suit and ought to set it aside and strike it out.

Ground 6.
The learned trial Judge erred in not setting aside the judgment.

Consistent with the rules of the Court, the parties herein, by their respective learned Counsel, filed and exchanged briefs of argument. The appellant filed a reply brief.
In his brief dated, and filed on 10/5/2002 and 15/5/02 respectively, the appellant formulated the following three issues for determination:
“(i) Whether there was proper service of the relevant Court processes to warrant upholding the default judgment against the Appellant (framed from Gds 2 & 3).
(ii) Whether the Appellant’s right of fair hearing was not breached when the Court failed to consider the Appellant’s defence (from Gds 1 & 4).
(iii) Whether the Court ought not to set aside the relevant judgment on grounds of jurisdiction amongst other grounds (from Gds 5 & 6).

In its own brief the Respondent raised a preliminary objection to ground 5 of the grounds of appeal. The preliminary objection was incorporated in the Respondent’s brief.
In the said brief, the Respondent raised the following lone issue for determination by the Court:
“Whether the trial Court correctly exercised its discretion to refuse the application to set aside the default judgment entered against the defendant/appellant.”

A decision on the preliminary objection on the issue of jurisdiction will necessarily involve a pronouncement on same material points in the case. This would preempt the trial Court in case of hearing de novo and jeopardize the interest of one of the parties.
It is safer to determine the appeal on the appellant’s issues (i) & (ii) in which the respondent’s lone issue is subsumed.
In issue 1 in his brief, learned Counsel for the appellant submitted that the three processes which ought to be served on a party before default judgment can be entered against him are the writ of summons, the statement of claim and the motion for judgment. Learned Counsel contended that neither the writ of summons nor the motion for judgment was served on the appellant and that the statement of claim was served on 28/10/99 and not sooner or later than the said date. Counsel argued that in view of the conflict in the affidavit evidence relating to service of the processes on the appellant the Court below should have called oral evidence to resolve the material conflict.

He relied on Mobil v. Pam (2000) 5 NWLR (Pt.657) 506 at 528 and argued that the bailiff should have been called to give oral evidence of service. He cited Bello v. National Bank of Nig Ltd (1992) 6 NWLR (Pt.246) 206 in support of his contention that the affidavit of service deposed to by the Bailiff is not conclusive proof of service of a process. He relied on Martin Schroder & Co. v. Major & Co. Nig Ltd (1989) 2 NWLR (Pt.101) 1 and submitted that the Court had no jurisdiction to entertain the case when the appellant, as defendant, was not served the writ of summons. Counsel argued that it was necessary for the Court to determine the actual date of filing the statement of claim in view of the claim by the bailiff that he received the statement of claim for service on 28/10/99. He argued that if the process was received by the bailiff on 28/10/99, the default judgment dated 17/11/99 was entered against the appellant within the 30-day period in Grd. 25 Rule 2 of the High Court Rules. Counsel said there was no conclusive proof that all relevant processes were served on the appellant before the lower Court entered a default judgment against it.

In his reply in his brief, learned Counsel for the Respondent relied on U.T.C. V. PAMOTEI (1989) 2 NWLR (PT.103) 244 at 282-283 for the hearing of default judgment. It is difficult to ascertain the part of the Respondent’s prolix argument directed at the appellant’s issue 1. Learned Counsel could not have done better if he prepared a paper for a seminar for law professors.
Issue 1 in the appellant’s brief is whether or not the relevant Court processes were proved to have been served on the appellant before default judgment was entered against. In determining the issue I will adopt the appellant’s list of processes necessary to be served on the appellant before entering a default judgment against it. There are: –
(1) Writ of Summons
(2) Statement of Claim and
(3) Motion on Notice for judgment.

The affidavit of service of the writ is on page 4 of the records and service was effected on “The secretary of C.G.G. (Nig) Ltd” on 21/6/99 at 9.30 a.m. Page 16A of the records contains affidavit of service of “Writ of summons/motion/ affidavit …” on “the sect to H.O.D. The affidavit indicated that the bailiff did not know the “sect to H.O.D. at C.G.G. Nig Ltd before he served the motion. He did not know “her” personally, but when the bailiff asked if “he” were the sect to H.O.D. ‘he’ said ‘he’ was.

The service was effected on 15/11/99 and the affidavit deposed to on 16/11/99.
Now, who is the secretary to C.G.G (Nig) Ltd upon whom the writ of summons was served on 21/6/99? And who is “the sect to H.O.D” upon whom the bailiff claimed to have served “the writ of summons/motion/affidavit” or simply motion. It is not even clear what process was served.
The same affidavit mentioned Writ of Summons/motion/affidavit and later mentioned motion as the process served. In the two affidavits, the name of the person served was not stated. In the affidavit of 16/11/99 the “sect to H.O.D was referred to as ‘her’ as well as ‘he’. In any case service of any process for service on the appellant company on “the sect H.O.D at C.G.G. (Nig) Ltd is not service on the appellant. It therefore follows that neither the writ of summons, nor the motion for judgment was served on the appellant in accordance with the relevant High Court Rules.

The writ of summons and the motion for judgment are processes required to be served on the appellant. Failure to serve the processes as provided by the rules renders the subsequent proceedings a nullity and the lower Court should have set aside the default judgment. See Wimpey Ltd v. Balogun (1986) 3 NWLR (Pt.28) p.324 at 325; Scott Emuakpor Ukavbe (1975) 12 SC 4 at 46; Obimoriore v. Erinoshe (1961) All NLR 250. The fact that there was no response to processes filed “since June/August 1999” is no proof that the process were served on the appellant. Issue 1 is resolved in favour of the appellant.

In issue 2, the appellant argued that the failure of the Court below to consider its defence in the application to set aside the default judgment was a breach of the appellant’s right to fair hearing. I agree with learned Counsel for the appellant that the Court below tacitly conceded that the appellant had a defence, when it stated in paragraph 15 at p. 60 of the records that “In the reply to Counter-Affidavit of paragraph 10, paragraph 7 is the only area where reference to a defence was mentioned. It states “in specific reply to paragraphs 17, 18, and 19 of the Counter-Affidavit. Applicant hereby annex as Exhibit B, the statement of Defence that was to be filed, but was aborted when Defendant discovered its amazement that the Plaintiff had already obtained a fraudulent judgment.” Though the records at page 60, contain the assertion that “Defendant/Applicant shall further state that it is not contesting the issue of a good defence, but the regularity of the judgment” the Court below had no basis for holding that the affidavit did not show good defence. I cannot think of a better way to show a good defence than a statement of defence which appellant would rely on at the trial. The Court below did not say that the Statement of Defence marked Exh. B was not good defence. The Court posed the question “Does the affidavit in support of defendant’s application therefore present a good defence on the merit?”

The Court said “the need for the applicant to show in his affidavit that he has a defence on the merit is a prerequisite for an application of this types to have any chance of success.” The Court below was in error not to have considered the Statement of Defence exhibited and marked Exh. B in the reply to the Counter-Affidavit. The Statement of Defence is as good as if it was itemized and stated as paragraphs of the affidavit. I agree with the appellant that the failure of the lower Court to consider the defence marked Exh. B is a denial of the appellant’s right to fair hearing entrenched in …
I resolve issue 2 also against the respondent.
As I mentioned earlier the decision on the preliminary object may affect the merit of the case and jeopardize subsequent trial. The matter is better left to be dealt with in trial de novo.

In summary, I hold that there is no proof of service on the writ of summons and/or the motion for judgment on the appellant. The failure of the Court below to consider the appellant’s Statement of Claim is a breach of the appellant’s right to a fair hearing. The appeal is meritorious and is hereby allowed. The default judgment of the lower Court dated 17/11/99 and the orders dated 11/4/2000 are hereby set aside. The suit No. HCH/14/99 is sent back to the High Court of Delta State for trial de novo by a Judge other than Onajite Kuejubola J.
I make no order as to costs.

Other Citations: (2005)LCN/1847(CA)