Dr. N. E. Okoye & Anor. V. Centre Point Merchant Bank Limited (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, J.S.C

This action was commenced at the Onitsha Judicial Division of the High Court of Anambra State on the 6/8/98, when the Writ of Summons was issued. The appellants herein were the plaintiffs. The respondent herein was the defendant. The six paragraph claim runs thus:-

Claim

The plaintiffs are customers of the defendant Merchant Bank which carries on merchant banking business in big cities of Nigeria including Onitsha.

2. By confirmation notice given to the plaintiffs by the defendant, the defendant is indebted to the plaintiffs to the tune of N2,385,716.75 (Two Million, Three Hundred and Eighty Five Thousand Seven Hundred and Sixteen Naira, Seventy Five kobo).
3. The defendant merchant bank has failed to pay interest as agreed or at all.
4. The interest rate which is fixed at the rate of 15% per annum is usually withheld by the defendant and was only paid twice in recent years.
5. Despite repeated demands by the plaintiffs for the defendant to pay the entire sum due and payable to them, the defendant has failed or neglected to pay same over to the plaintiffs.
6. Wherefore the plaintiffs claims as follows:

(a) The sum of N2,385,716.75 being the principal sum due to the plaintiffs.

(b) Interest at the rate of 15% per annum on the sum of N2,385.716.75 from 24th day of March, 1995, until the sum owed is fully liquidated.”

The claim is supported by a 10 paragraph affidavit deposed to by the 1st plaintiff/appellant. The suit was entered in the Undefended List.

When the matter came up on the 17/12/98, learned counsel for the plaintiffs informed the court that the defendant had been served on the 18/11/98 and that there was no notice of intention to defend. Learned counsel therefore asked for judgment.

In reaction, the learned trial Judge, K.K. Keazor, J., said:-

“The suit is brought under the Undefended List Procedure. The defendant was served on 18/11/98. The matter was set down for hearing today. This was well over the prescribed 5 days before hearing after service. The defendant did not file notice of intention to defend. There will be judgment for the plaintiffs as per their claim for:-

(a) The sum of N2,385,716.75 being the principal sum; and

(b) Interest at the rate of 15% per annum in the said sum of N2,385,716.75k until the sum is fully liquidated.”

Learned counsel for the plaintiff asked for N2,000.00 costs and the court awarded same. The above represents the judgment of the trial court.

The defendant was aggrieved by the judgment and went on appeal to the court below. By its judgment on the 21/12/2001, the appeal was allowed. The plaintiffs were aggrieved by the judgment and have come on appeal to this court. In the Notice of Appeal dated 16/1/2002 and filed on the 4/2/2002, the appellants raised seven grounds of appeal.

The parties have, through their counsel, filed and exchanged their Briefs of Argument. The appellants’ Brief dated 15/5/2002 and filed on the 12/8/2002, was prepared by Oraegbunam Anieto. He proposed seven issues for determination which he couched as follows:

“1. Whether the Court of Appeal was right in allowing the defendants-respondents’ appeal when the said defendants-respondents failed to argue their ground 6 of appeal which complained of specific finding that the Writ of Summons was duly served on the defendants

2. Whether the Court of Appeal has the jurisdiction to entertain an issue not contested at the trial High Court and decision reached thereat
3. Whether the Court of Appeal was right by attacking the contents of affidavit of service in view of

(i) Order 26 Rule 5 of the High Court Rules of Anambra State,1988.

(ii) Section 78 of the Companies and Allied Matters Act,1990, and

(iii) Order 7 Rule 4(1) High Court Rules of Anambra State 1988

4. Whether the Court of Appeal has the right to make a finding on the issue of jurisdiction outside the record placed by the parties before the trial court
5. Whether the Court of Appeal can over-rule the decision of the Supreme Court as it did in this matter of service of Writ of Summons on a company
6. Whether the Court of Appeal can, in fairness to the appellants, ignore the contents of records before it
7. Whether the judgment of the Court of Appeal is not perverse”

The respondent’s Brief dated the 22/10/2002 and filed on the 24/10/2002, was prepared by Chike Onyemenam. In the Brief, the following five issues for determination were formulated.:-

“1. Did the respondents fail to formulate and argue the issue of nonof the Writ of Summons as complained in their ground of appeal

2. Is the Court of Appeal robbed of jurisdiction to entertain a complaint of non-service of an originating process simply because the issue was not contested and decided at the trial High Court
3. Was there sufficient proof of service of the Writ of Summons/Claim on the defendant/appellant at the court below
4. Did the Court of Appeal introduce a ground of appeal and formulate an issue suo motu and decide on same without hearing the parties
5. Did the Court of Appeal overrule its judgment and that of the Supreme Court on any issue thereby making its judgment perverse”

On behalf of the appellants, Oraegbunam Anieto proffered arguments the substance of which are as follows:-

On their 1st issue, counsel referred to the finding of the learned trial Judge to the effect that the Writ of Summons was served on the defendant/respondent and ground 6 of the grounds of appeal and submitted that since no issue was formulated therefrom, the Court of Appeal had no right to interfere with that finding, especially when the finding was not found to be perverse. For this submission learned counsel relied on David Fabunmi v. Abigail Ade Agbe (1985) 1 NWLR (Pt.2) 299, Anyaduba v. NRTC Ltd. (1992) 5 NWLR (Pt.243) 535 at 553, Oyibo Iriri & Ors. v. Ezeroraye (1991) 3 S.C. 1; (1991) 2 NWLR (Pt. 173) 252 at 265.

With respect to the appellants’ second issue, it was the submission that the issue of the non-service of the Writ of Summons ought to have been first contested at the trial court by an application to set aside the judgment and that it is only after the trial court had decided the issue that the Court of Appeal would be vested with jurisdiction to entertain and determine the issue of service. It was counsel’s submission therefore that the court had no jurisdiction to entertain the appeal. He relied on Order 24 Rule 15 of the High Court Rules of Anambra State,1988, Sections 24(1) and 329 of the Constitution, Order 3 Rule 2 (1) of the Court of Appeal Rules, Cap 62, Laws of the Federation of Nigeria, 1990, Wimpey (Nig.) Ltd. & Anor. v. Alhaji Delani Balogun (1986) 3 NWLR (Pt.280) 324 at 334, Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 12 S.C. 160; (1989) 5 NWLR (Pt.123) 523 at 531.

As respects the appellants’ third issue learned counsel referred to Order 26 Rule 5 of the High Court Rules of Anambra State,1988 and submitted that the affidavit of service, being a process made by the court, the plaintiffs/appellants cannot, in fairness, be held accountable for lapses therein if any. Counsel relied further on Order 5 Rule 4(1) of the High Court Rules Anambra State,1988 and contended that there was nothing wrong with the affidavit of service since it is stated therein that service was effected on the Manager of the defendant/respondent bank. He relied once more on Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd (supra) at page 539, Nelson v. Ebanga (1998) 8 NWLR (Pt.563) 701 at 722, Jammal Steel Structures Ltd v. A.C.B. Ltd. (1973) 11 S.C. 77 at 85; (1973) 11 S.C. (Reprint) 56, Abraham Oyeniran & Ors. v. James Egbetola & Anor. (1997) 5 NWLR (Pt.504) 122 at 131. It was wrong therefore for the Court of Appeal to insist on a named manager and a named pointer, counsel argued.

On the 4th issue, it was the submission for the appellants that there was no complaint about a conflict between Exhibits ‘A’ and ‘B’ and that it was therefore wrong for the court below to suo motu introduce conflict between the two exhibits and resolving same without calling on the parties to address on it. It was the submission that the procedure occasioned great miscarriage of justice. Reliance was placed on U.B.A. Ltd. v. Nwokolo (1995) 6 NWLR (Pt.400) 127 at 148-149, Ndiwe v. Okocha (1992) 7 NWLR (Pt.129).

In the appellants’ 5th issue, it is the submission of the counsel that the procedure adopted by the trial court was in compliance with the provisions of Order 24 Rule 9(4) of the High Court Rules of Anambra State,1988.

The appellants’ 6th issue is predicated mainly on the decision in Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (supra) which, counsel said, is apposite to the facts of this case and contended that the court below was bound to follow it.

On the 7th issue, learned counsel referred to the reaction of the defendant/respondent on the very day of the judgment of the trial court when two of its officials visited the 1st appellant in his office and urged a finding that it was not only served but that its officials were even in court when judgment was entered against it.

The substance of the arguments of Chike Onyemenam for the respondent are as follows: On the appellants’ first issue of whether the respondents as appellants at the court below formulated any issue arising from the 6th ground of appeal, it was argued that issues 1 and 2 at page 94 of the record properly raised the issue of whether or not there was prima facie proof of service and whether there was evidence of service in law. With respect to the appellants’ second issue, it was the submission of learned counsel that non-service of Originating Summons is an issue of jurisdiction which can therefore be raised at any stage of the proceedings. He relied on Oredoyin v. Arowolo (1989) 7 S.C. (Pt.II) 1; (1989) 4 NWLR (Pt.114) 172 at 187.

In response to the appellant’s argument on their issue three, counsel contended that an affidavit of service merely raises a rebuttable presumption of service and that grounds (i) (ii) (iv) and (vi) were attacks on the purported service to rebut the presumption. It was contended therefore, that the Court of Appeal properly examined the affidavit of service and relying on Wimpey (Nig.) Ltd. v. Balogun (1986) 3 NWLR (Pt.28) 324 at 387-394, rightly found against any service in law. It was his submission that where the evidence is merely affidavit evidence, the appellate court is in as vantage a position as the trial court to evaluate it and make findings therefrom and contended that the Court of Appeal adopted the right procedure to arrive at a just decision. Counsel relied on Ogunleye v. Oni (1990) 4 S.C. 130; (1990) 2 NWLR (Pt.135) 745 at 785. With respect to the appellants’ issues 5 and 6, counsel argued that there was nothing the Court of Appeal did which is contrary to the principle on Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (supra). And on the appellants’ 7th issue, it was argued that the Court of Appeal rightly ignored the extraneous matters sought to be introduced by the appellants therein in arriving at its decision. In conclusion, counsel urged that the appeal be dismissed.

I have considered the address of counsel for the parties. The very fundamental issue in this appeal is that of service and I would start my deliberation with this issue of whether or not the defendant/respondent was served. It is settled that, service of origination processes such as the Writ of Summons on the defendant is a fundamental condition precedent to the court’s exercise of its jurisdiction to hear and determine the suit. This is so because any judgment or order given against a defendant without service is a judgment or order given without jurisdiction and is therefore null and void. See Alhaji J.A. Odutola v. Inspector Kayode (1994) 2 NWLR (Pt.324) 1 at 15. Thus, the failure to serve a process is not merely an irregularity but a fundamental defect which renders the proceedings a nullity. See Obimonure v. Erinosho (1966) 1 All NLR 250 at 252, Scot-Emuakpor v. Ukavbe (1975) 12 S.C. 41 at 47; (1975) 12 S.C. (Reprint) 31, Odita v. Okwudinma (1969) 1 All NLR 228, Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6 at 26; (1981) 1 S.C. (Reprint) 4.

In United Nigeria Press Ltd. & Anor v. Adebanjo (1969) 6 NSCC 395 at 396, this court, per Fatayi-Williams, JSC., (as he then was) spoke of the object and primary consideration in service of processes. He said:-

“In our opinion, the object of all types of services of processes whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of and able to resist, if he may, that which is sought against him. Therefore, since the primary consideration is an application for substituted service is as to how the matter can be best brought to the attention of the other party concerned, the court must be satisfied that the mode of service proposed would probably, after all practicable means of effecting personal service have proved abortive give him notice of the process concerned.”

In this case the trial court, apparently relying on the affidavit of service, came to the conclusion that the defendant/respondent was duly served and proceeded to enter judgment as claimed. The defendant/respondent denied any service. The court is thus put on inquiry as to whether or not the Writ of Summons was indeed served on the defendant/respondent. I have earlier reproduced the judgment of the trial court at page 8 of the record. There is nothing therein to show that the court thoroughly examined the affidavit evidence of service before entering judgment for the plaintiffs/appellants. May be it did. But there is nothing to show that it did.This issue of service was the main and fundamental issue at the Court of Appeal. It is settled that an affidavit of service deposed to by the person effecting the service, setting out the fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matters stated in the endorsement or affidavit. See Martin Schroder & Co. v. Major & Company (Nig.) Ltd. (1989) 2 S.C. (Pt.II) 138; (1989) 2 NWLR (Pt.101) 1 at 11. Where however the service evidenced in the affidavit of service is disputed by the defendant, as in this case, the Court of Appeal has a duty to satisfy itself that there had in fact been service on the defendant. See Alhaji Umaru Launi v. Ezeadua (1983) 6 S.C. 370, Madam Alice Okesuji v. Fatai Alabi Lawal (1991) 2 S.C. 25; (1991) 1 NWLR (Pt.170) 661 at 673. It is clear from the Records of Proceedings in this case that the Court of Appeal was not only conscious of but also committed to its duty of ensuring that the defendant/respondent against which there was the subsisting judgment was in fact served with the originating processes. At page 126 of the record, the court per M.D.Muhammad, JCA., (as he then was) assessed the affidavit of service as follows:

“The affidavit of service in the instant case shows that the “Manager” of the appellant was served after he had been pointed to the bailiff by one other. The affidavit of service neither contained the name of this “Manager” that was served nor the name of the pointer who led to him. That was not all. The bailiff’s dispatch book belied the contents of the bailiff’s affidavit of service. The book indicates that the process was received and signed for by a third party for and on behalf of the Manager. Here again, neither the name nor designation of the recipient was indicated. There was so much that was vague about this service that it would be unfair to allow a decision built on it to survive.”

These pungent remarks, no doubt, shows the court’s critical examination of the affidavit evidence of service. Learned counsel for the appellants never contested these findings but submitted that since the said documents were not prepared by the appellants, they cannot be held accountable for lapses contained therein. I do not, with respect, agree with that contention of learned counsel. The affidavit of service, though not prepared by the appellants, is the very document paraded by them to prove that the defendant/respondent was duly served with the originating processes before the judgment was entered against it. And the Dispatch Book was prepared by the appellants in proof of their assertion that the defendant/respondent was served. Therefore, if these documents contain materials which tend to impeach the credibility of their claim that the defendant/respondent was served, they cannot be heard to say that they are, after all, not the makers of the documents. The inconsistencies identified by the court below render the case of the plaintiffs/appellants unreliable and thus, create doubts as to whether the defendant/respondent was served. After highlighting the inconsistencies in the affidavit evidence of the plaintiffs/appellants the court below at the same page 126 said:-

“With these facts, the trial Judge ought to have entertained doubts as to whether the appellant had in fact been served to entitle the court to assume jurisdiction. Where any doubt as to whether or not service was or was not properly effected exists, a judgment obtained by a party in the absence of the other such as in the instant case, has to be set aside to ensure that both parties are heard before a decision. See Wimpey Ltd v. Balogun (supra).”

I agree entirely with the above reasoning and conclusion. In the affidavit in verification of facts deposed to by Mr. Wilson Abia, the Onitsha Branch Manager of the defendant/respondent, he made very crucial assertions in denial of the purported service. In paragraphs 2-7 he deposed:-

“2. I have read the affidavit of service sworn to by one Uyanwanne G., the Chief Bailiff of the Onitsha High Court wherein he falsely claimed to have served the Writ of Summons in this suit on the manager by delivering same to the manager after one unknown person identified me. A copy of same is exhibited and marked as Exhibit “A” .

3. The aforesaid deposition by the said Bailiff is false as neither myself nor any staff of the appellant’s bank was served with any Writ of Summons in this suit.
4. It would be foolhardy and stupid of me after being served with a claim against my bank involving over N2,000,000.00 (Two Million Naira) not to inform my head-office and/or brief our bank’s solicitor, Chike Onyemenam Esq., who is based here in Onitsha.
5. The aforesaid Bailiff never came into the appellant’s bank to serve any process whatsoever in relation to this case and we were consequently not aware of its pendency until a staff of the Onitsha High Court came and informed me that judgment has been delivered against our bank.
6. I verily believe that the affidavit of service was deposed to in bad faith so as to deprive us of an opportunity of being heard.
7. I challenge the aforesaid Bailiff to produce his service book and show the Honourable court where myself or any of the bank staff signed as he claims to have delivered same to me personally.”

There was no reaction from the Chief Bailiff to the above assertions. They remain essentially unchallenged. In view of the foregoing averment which remain practically unchallenged and the internal cracks in the affidavit evidence of service, the finding of the court below about there being no proper proof of service of the processes on the defendant/respondent cannot be faulted. The result is that I resolve this issue of service in favour of the defendant/respondent.

Having resolved this issue of whether or not there was proper service in favour of the respondent and against the appellants, it serves no useful purpose to deliberate on the remaining issues. The resolution of this issue of service determines the appeal and a deliberation on the other issues would be nothing more than a mere academic exercise. Since there was no proof of service of the originating processes on the defendant/respondent, the judgment of the learned trial Judge, K.K. Keazor, J., on the 17/12/98, was without jurisdiction and is therefore null and void.

In the event, the appeal is dismissed and the judgment of the court below of the 20/12/2001, be and is hereby affirmed. The judgment of the trial court of the 17/12/98 is set aside. The suit itself be and is hereby remitted back to the Onitsha Division of the High Court of Anambra State for trial by another Judge. I make no orders as to costs.

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SC.176/2002