International Committee of the Red Cross (ICRC) V. Ismaila Tijani Olabode (Trading Under the Name of It Olabode Enterprises) (2009)
LawGlobal-Hub Lead Judgment Report
UWANI MUSA ABBA AJI, J.C.A.
This is an interlocutory appeal by the Appellant against the ruling of Hon. Justice H. Mukhtar of the High Court of the F.C.T. Abuja (as then was) delivered on the 29th June, 2005.
The Respondent who was the plaintiff at the lower court, filed a case against the Appellant as Defendant, claiming inter alia the sum of N3,366,747.00 (Three Million, Three Hundred and Sixty-Six Thousand, Seven Hundred and Forty-Seven Naira) being the sum meant for the professional fees for three architectural designs and drawings made on the Defendant’s instructions and which has been delivered to the Defendant and has remained unpaid for till date.
By a Notice of Preliminary Objection filed on the 12th May, 2005, the Appellant challenged the competence of the lower court to entertain the suit upon the following grounds:-
a)That the lower court lacks jurisdiction and or competence to hear and determine the suit as presently constituted;
b) That the action was instituted contrary to the provisions of Section 3(1), 6(1)(a) & (b) and Section 5(1) of the Diplomatic Immunities and Privileges Act, Cap 99 LFN, 1990.
c) That the Defendant/Appellant enjoys immunity from legal process of any kind in respect of word spoken or written and all acts done by them in exercise of their functions;
d) That assumption of jurisdiction by the court in order to try the defendant/Applicant will amount to an exercise in futility as the judgment of the court will not be binding on the Defendant/Applicant at the end of the proceedings;
e) That the claimant has no right of action against the defendant;
f) That the action is frivolous, vexations, oppressive and constitute an abuse of court process; and
g) Breach of the provisions of the Sheriff and Civil Process Act, Cap 407 LFN 1990.
In a considered ruling delivered on the 29th June, 2005, the learned trial judge dismissed the Appellant’s preliminary objection as lacking in merit.
Dissatisfied with the ruling, the Defendant (now Appellant) filed a notice of appeal on the 29th June, 2005 upon the following three (3) grounds;
1) The learned trial judge erred in law by assuming jurisdiction over this matter contrary to the provisions of the Diplomatic Immunities & Privileges Act, Chapter 99 Laws of the Federation of Nigeria, 1990, Sections 1-7.
2) That the learned trial judge erred in law by misinterpreting the provisions of Section 2 of the Diplomatic Immunities and Privileges Act Chapter 99 Laws of the Federation of Nigeria, 1990 to the extent of concluding that the Appellant is a juristic entity.
3) That the whole decision is against the weight of evidence.
In accordance with the practice of this court, parties filed and exchanged briefs of argument. In the Appellant’s brief settled by Akinwunmi Salau, Esq., two (2) issues were raised for the determination of the appeal, namely:-
I) Whether in view of the provisions of Section 6(1) (a) and (b) of the Diplomatic Immunities and Privileges Act 1990 and Article VI, Article IV(3), Article XIII and Article III of the Headquarters agreement the lower court was right in assuming jurisdiction over this matter.
II) Whether there was proper service of the originating process on the Appellant.
The Respondent’s brief settled by Festus Akpoghalino, Esq., also formulated two issues for determination to wit;
(i) Whether the Appellant is immune from paying for services rendered to it under contractual agreements.
(ii) Whether there was service of the originating processes on the Appellant.
At the hearing of the appeal, learned counsel for the Appellant, Akinwunmi Salau, Esq., adopted and relied on the Appellant’s brief of argument filed on the 22nd December, 2005 and urged the court to allow the appeal. The Respondent adopted and relied on its brief of argument filed on the 12th of May, 2006 but deemed properly filed on the 20th June, 2007 and urged the court to dismiss the appeal.
I have carefully considered the issues for determination as formulated by the respective learned counsel and the issues as formulated by the learned Appellant’s counsel are considered relevant as it encapsulates on the issues for determination of the Appeal.
ISSUES 1
Whether in view of the provisions of Section 6(1) (a) and (b) of the Diplomatic Immunities and Privileges Act 1990 and Article VI, Article IV (3), Article XIII and Article III of the Headquarters agreement the lower court was right in assuming jurisdiction over this matter.
In arguing this issue, learned counsel for the Appellant submitted that it is important for the court to first determine whether it has jurisdiction before it can adjudicate on issues affecting the rights of parties. Consequently the following conditions must be satisfied before a court will assume jurisdiction.
a) It must be properly constituted as regards numbers and qualifications of the members of the Bench.
b) The subject matter of the case is within its jurisdiction and no features of the case which prevent the court from exercising its jurisdiction.
c) The case came before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
The following were referred to:
WESTERN STEEL WORKS LTD VS IRON & STEEL WORKERS UNION (1986) 3 NWLR (PT.30) 618; ODOFIN VS AGU (1992) 3 NWLR (PT.229) 350 AT 354, RATIO 2; LEEDO PRESIDENTIAL MOTEL VS B.O.N. LTD (1998) 10 NWLR (PT. 570) 353 AT 362. RATIO 10
It is submitted by the learned counsel that the combined effect of the provisions of Sections 3 (1), 5(1), 6(1), (a), & (b) of the Diplomatic Immunities & Other Privileges Act, is to the effect that the Head of Delegation of the Committee together with the officials are immune from legal process of every kind in respect of words spoken or written and all acts done by them in exercise of their functions, not being traffic offences or damages caused by motor vehicles, so also all the properties archives and assets of the committee shall be exempted from search, requisition and confiscation.
It is also submitted that the Appellant not being a registered body or company under the Nigerian Law cannot be sued because the Appellant is not known to law. It is his contention that, it is only the officers of the Appellant that could attend court proceeding and since the officers enjoy immunities in line with the provision of Section 6(1) (b) of the Diplomatic Immunity and Privileges Act, they cannot attend court and the whole essence of suing the Appellant will be futile and even if judgment is awarded against the Appellant its property cannot be confiscated. Learned counsel referred to section 3(1) of the Act and Article IV of the Headquarters Agreement on pages 77-78 of the Records and submitted that, although the Appellant enjoys the status of legal capacity, it is not a juristic entity but a judicial entity. Learned counsel referred to Section 2 of the Diplomatic Immunities and Privileges Act (henceforth to be simply referred to as the Act), which provides:-
“The committee shall have the legal capacities of a body corporate.” And Article III of the Headquarters Agreement on page 77 of the Records which states that:
This Acting legal Personality and Freedom of Assembly. The Government recognizes the Legal Personality of the Regional Office which shall in particular have the capacity.
a) To contract
b) To institute legal proceedings
c) Subject to the provisions of any laws for the time being in force in Nigeria to acquire and dispose of movable and Immovable properly.
It is the view of Salau Esq., that Section 2 of the Act only accord the status of legal capacity to the Appellant for limited purpose as provided for in Article III of the Headquarters Agreement and that Section 2 of the Act does not make the Appellant a body corporate, like a registered company or incorporated company to sue and be sued thereby making the Appellant a juridical person and not a juristic entity.
It is further submitted that the Appellant is not a corporation as there is no statute to which it owes its creation as the Appellant is an International Humanitarian Organization that came to Nigeria as result of mutual understanding between the Federal Government of Nigeria and the Appellant as shown in the Headquarters Agreement, as could be found in pages 76-82, that the said agreement predates the Diplomatic Immunities and Privileges Act of 1990, and submitted that there is no statute by virtue of which the Appellant has been incorporated. He cited in support of his contention, the case of GANI FAWEHINMI VS NIGERIA BAR ASSOCIATION & ORS (NO.2) 1989 (2 NSCC Page 43 at 46 that legal personality can only be conferred by statue and may be so conferred for a LIMITED PURPOSE.
Learned counsel further submitted that the attributes of Juristic personality can only be acquired upon incorporation, and that the Appellant being an unincorporated entity cannot enjoy the attribute of juristic personality. It is also submitted that, reading the provision of Section 2 of the Act of 1990 and Article III of the Headquarters Agreement and the case of GANI FAWEHINMI v NBA (supra). It is clear that the Appellant is recognized as a body corporate for a variety of purposes but not for the purpose of being sued in its own name. He also posited that the combined effect of Section 6(1) (a) & (b) of the Act read together with Article VI, IV (3) and III of the Headquarters Agreement, is that the Appellant enjoy immunity and unless such immunity is waived as provided for in Article VI, Article IV and Article XVII of the Headquarters Agreement and which has not been done in the instant case, the Appellant enjoys immunity from legal process of every kind and therefore urged that this issue be resolved in favour of the Appellant and the appeal be allowed accordingly.
ISSUE 2:
Whether there was proper service of the originating process on the Appellant.
It is submitted by the learned counsel for the Appellant that service of a writ or process on a defendant is one of the fundamental condition precedents to the exercise of jurisdiction by a court of law. It is submitted that it is an irregularity which renders the proceedings incurably defective, null and void and may not be waived as acquiescence cannot confer jurisdiction. The following case were referred to; SKEN CONSULT NIG.LTD Vs UKEY (1981) 1 SC 6
MANAGEMENT ENTERPRISES LTD V OTUSANYA (1987) 2 NWLR (Pt 55) 179; LEEDO PRESDIENTAL MOTEL V BON LTD (1998) 10 NWLR (Pt 70) 353 at 361.
It is submitted that the originating processes were served not on the Defendant personally, but on the counsel and the trial court still assumed jurisdiction inspite of this error instead of calling for oral evidence to resolve the issue of service. It is thus submitted that the lower court has denied the Appellant justice in the matter. He referred to the cases of MOMAH V YAB PETROLEUM INC. (2000) 4 NWLR (Pt. 657) 534 at 540; FALOBI V FALOBI (1976) 9-10 SC, and AKINSETE V AKINDUTIRE (1966) 1 ALL NLR 147.
Learned counsel submitted that there was no proper service of the originating process on the Appellant as required by Section 96 & 97 of the Sheriff’s and Civil Process Act. It is therefore submitted that failure to serve a process where service is required goes to the root of the matter as it is a fundamental vice which renders null and void an order made against the party who should have been served as the idea that an order can validly be made against a party who has no notification of the action against him is one that is undesirable and indeed, unacceptable in the Nigerian Judicial System.
It is submitted that service of originating process is personal and must be served on the defendant and not his counsel and mere acquiescence of the parties cannot give the court competence and jurisdiction and the lower court was wrong to have assumed jurisdiction over the matter and has rendered null and void the order made against the Appellant as you cannot put something on nothing and expect it to stay there.
The following cases were referred to;
LEEDO PRESDIENTAL MOTEL Vs BON LTD (1998) 10 NWLR (Pt 70) 353 at 361 Ratio 9, 11 & 12.
AUTO IMPORT EXPORT VS ADEBAYO (2002) 18 NWLR (PART 799) 554 RATIO 12 AND 13
SKENCONSULT (NIG) LTD V UKEY (1981) NSCC VOL.12
FIRST EDITION PAGE 1 RATIOS 1-3.
Learned counsel urged the court to allow the appeal.
In his response, learned counsel for the Respondent submitted that the Appellant is not immune from paying for services rendered to it in contract. It is his view that the Appellant does not enjoy immunity from legal suits in Nigeria, being a body corporate and cited Section 2 of the Diplomatic Immunities and Privileges Act.
It is submitted that one of the incidence of corporate personality is that such an organisation can sue and be sued in its own corporate name, citing in support the case of FAWEHINMI VS NIGERIA BAR ASSOCIATION & ORS (NO.2) (1989) 2 NSCC (part 2) Page 43 at 53. para 35. Learned counsel referred to Section 2 of the Act, which stipulates that, the Committee shall have legal capacities of a body corporate and contended that the words are very clear and unambiguous; hence no extraneous meaning should be read into them, citing the case of OKORO v NIGERIA ARMY COUNCIL (2000) 3 NWLR (PART 647) PAGE 77 AT 83. It is submitted that the legal capacity referred to by the Act is the capacity to do all acts that a natural human being can do or perform.
It is further submitted that Section 3 (1) of the Act, cited by the learned counsel for the Appellant is misconceived because by the wordings and contents of the provision, the section was not intended to apply to court order of competent jurisdiction. Section 3 (2) of the Act, subjects all properties, archives and assets of the committee to the laws of Nigeria which shall apply to them.
It is submitted that if this Section confers immunity at all, it is protection from search, requisition and confiscations by police that may for the purpose of investigation enter the premises, that it does not affect court orders and judgments of court as Section 3(2) suggests in its last limb.
Learned counsel submitted further that Section 5 (1) of the Act cited by the Appellant does not support their argument, as the type of immunity contemplated by the Section is very clear, that is personal immunity of the Head of Delegation for acts performed pursuant to his duties as Chief Executive of the Committee, and since the Head of the Delegation was not sued in person, the court is urged to view the objection as a delay tactics to deny the Respondent of justice in this case.
Learned counsel for the Respondent cited Sections 4 and 6(1) (a and b) to further reiterate the fact that it is the officials of the Committee and not the Committee itself that enjoys immunity and this being the ease, the Appellant i.e. the Committee must pay for contract duly executed for it.
It is also submitted that Sections 2, 3, 4, 5 and 6(1) of the ACT, confers jurisdiction on the courts to do justice and the court is enjoined always to guard its jurisdiction jealousy, citing the case of OSUU SC ODUKO VS GOVERNMENT OF EBONYI STATE & 3 ORS (2004) 13 NWLR (Pt. 891) 487 AT 490 R.1. It is submitted that where there is any clause in a statute that seems to oust a court’s jurisdiction, the court is enjoyed to methodically scrutinize the words of the statute and interpret them strictly, citing KALANGO V GOVERNMENT OF BAYELSA STATE (2002) 17 NWLR (PT.797) 621 RATIO 2.
Learned counsel for the Respondent also submitted that the Appellant is not a judicial personality as defined in FAWEHINMI V NIGERIA BAR ASSOCIATION (supra); since it has been statutory enacted into law under LFN CAP 99. It is also submitted that the Headquarters Agreement referred to by the Appellant is irrelevant and should be disregarded, because the law is that where an agreement or treaty has been enacted into law, such agreement becomes inactive and only the law itself becomes relevant, referring to Section 12 (1) of the 1999 Constitution. Learned counsel urged the court to disregard the Headquarters Agreement referred to by the Appellant, as it is no longer useful to the case.
It is argued that the Appellant’s argument that Section 2 of the Act only accords the Appellant the status of legal capacity for limited purposes is misunderstood and misconceived the whole concept of legal personality. It is submitted that Section 2 of the Act states that the Committee shall have the capacities of a body corporate and urged the court to reject the submission of the Appellant that only a company registered by CAC or unincorporated body can sue and be sued in its own name. It is thus submitted that the Appellant is regulated by the Diplomatic Immunities & Privileges Act cap 99, LFN 1990 that gave it life and therefore that the organisation is a corporate personality sole, which can sue and be sued in its own name as entrenched in the Act that gave it life. The case of FAWEHINMI VS NIGERIA BAR ASSOCIATION (supra); was referred to. The court was urged to dismiss the appeal on his ground.
In his response to issue two, the learned counsel for the Respondent submitted that the originating process on the Appellant was properly served. He submitted that the Respondent made an application for substituted service which was granted by an order dated 5/4/05 whereof all processes were sent by substituted means i.e. by EMS Courier Services through a special bailiff appointed for that purpose by the order of court. This order was complied with as evidenced by the proof of service and affidavit of service dated 6/04/05, EMS delivery form and receipt of payment for the EMS. See pages 29, 47, 50 and 51 of the Records. He urged the court to reject the Appellant’s submission that there was no proper service of the originating process. It is submitted that the court can go through its record and place reliance on same, citing the case of EDEH VS ONYEJESE (1997) 8 NWLR (PT.518) 614. It is submitted that the issue of service and proof of service of the originating processes was carefully handled by the lower court and the court was satisfied by evidence of proof of service. The court was urged to follow the cause of substantial justice and not be tied down by technicalities. The case of FAMFA OIL LTD V A.G. FEDERATION (2003) 18 NWLR (PT.852) 453 AT 460 was referred to.
The learned counsel also argued that the case of MOMAH VS YAB PETROLEUM INC (SUPRA) cited by the learned counsel for the Appellant is irrelevant because in this case, there is no conflicting affidavit of service, there is no counter affidavit in the record of proceedings relating to this at all, and that the Appellant conceded in paragraph 5:0:2 and 5:0:3 of his brief of Argument that there was evidence of proof of service that, this concession has totally contradicted all his argument that there was no proof of service in the case file.
It is further submitted that the appellant had entered appearance at the lower court before filing a Notice of Preliminary Objection, whereof he raised the issue of service of court process. See page 31-32 of the Records. It is his view that the Appellant had been served with the court process, as there would have been no material on which its Preliminary Objection will be based, had there been no service of the Writ of Summons. The case of PUBLIC FINANCE SECURITIES LTD VS JEFIA (1998) 3 NWLR (PT.543) 602 AT 606 was relied on and the court was asked to dismiss this action as frivolous.
Learned counsel therefore submitted that the fact that the counsel has entered appearance, it is presumed that the counsel is acting on the instruction of the party he represents in a matter, and that the filing of the conditional appearance and the preliminary objection dated 8th and filed on 12th April, 2005, respectively is an indication that the counsel is acting on the instruction of the Appellant and they cannot therefore deny service of the process. He therefore urged the court to dismiss the argument of the Appellant in this respect and to dismiss the appeal.
In my view, the main contention on issue 1 is whether by the combined effect of the provisions of Sections 2, 3, 5 (1), 6(1), (a) and (b) of the Diplomatic Immunities & Privileges Act Cap 99 LFN 1990, and Articles III, IV, VI of the Headquarters Agreement, the Appellant is immune from being sued in any court of law whatsoever. In other words, it is not liable to be sued for breach of any obligation on its part legally entered into by it in the course of its business.
In considering this issue, it is pertinent to examine the relevant provisions of the Diplomatic Immunities and Privileges (International Committee of the Red Cross) ICRC Act Cap 99 LFN 1990 which purports to confer such immunity and also the Headquarters Agreement.
Sections 2, 3, 5(1) and 6(1), (a) and (b) of the Diplomatic Immunities and Privileges Act, provides as follows:
2 The Committee shall have the legal capacities of a body corporate.
3 all the properties, archives and assets of the Committee shall be exempt from search, requisition and confiscation.
5(1) The Head of Delegation of the committee except in so far as in any particular case the immunity is waived by the committee shall enjoy personal immunity for acts performed in pursuance of his duties, etc as chief executive of the committee.
6(1) Except in so far as in any particular case, any privilege or immunity is waived by the committee, officials of the committee shall enjoy,
6(a) while exercising their functions as such and during any journey to and from the committee, immunity from personal arrest or detention and from seizure of their personal baggage and inviolability of all papers and documents relating to the work of the committee;
6(b) Immunity from legal process of every kind in respect of words spoken or written and all acts done by them in exercise of these function (not being traffic offences or damage caused by motor vehicles);
Article III of the Headquarters Agreement provides:-
“This acting Legal Personality and Freedom of Assembly.
The Government recognizes the legal personality of the Regional Office which shall, in particular, have the capacity;
a) To contract
b) To institute legal proceedings
c) Subject to the provisions of any laws for the time being in force in Nigeria to acquire and dispose of movable and immovable property.
d) Article IV (3) of the Agreement provides that
e) Government agent may not enter the premises of the Regional office except with the consent of the Head of the Delegation. No service or execution of any legal process or any ancillary act such as the seizure of private properly shall be permitted by the Government to take place within the premises of the Regional Office except with the express consent of the head of the Delegation Process sent by post to the committee shall not be regarded as effecting service.”
Article VI provides inter alia:
“The Regional office shall have immunity from jurisdiction and execution, except;
a) to the extent that the Regional office shall have expressly waived such immunity in a particular case;
b) in respect of a civil action by a third party for damages arising from an accident, caused by a motor vehicle or other means of transport belonging to or operated on behalf of I.C.R.C., or in respect of a traffic offence involving such a vehicle;
c) In respect of a counter claim directly connected with proceedings initiated by I.C.R.C. or
d) In respect of an enforcement of an arbitration made under Article 20.
The learned counsel for the appellant contended that the combined effect of the above adumbrated provisions is to the effect that the Appellant is not within the jurisdiction of any court in Nigeria as it is an International Non-Governmental Organisation, with its legal activities limited to that specified in the above provisions. It is not a body corporate with legal capacities to sue and be sued in its own name as it not a juristic entity but a juridical entity as held in the case of GANI FAWEHINMI V NIGERIA BAR ASSOCIATION supra; where the Supreme Court held that legal personality can only be conferred by statute and may be so conferred for a LIMITED PURPOSE.
The learned counsel for the Respondent however contended that by Section 2 of the Act, the Committee shall have the legal capacities of a body corporate, and submitted that the Appellant is a body corporate and can therefore sue and be sued.
It is now settled that the rule of interpretation of statutes is that plain and unambiguous words must be given their natural and grammatical meaning. In SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LTD VS F.B.I.R. (1996) 8 NWLR (PT.466) 256 at 286, the Supreme Court per Uwais CJN held, “That if the words of a statute are plain, precise and unambiguous, they should be given their ordinary and natural meaning.”
Similarly in ATTORNEY GENERAL ONDO STATE V ATTORNEY GENERAL EKITI STATE (2001) 17 NWLR (PT.743) 706, Kutigi, JSC (as he then was) stated;
“It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions (of an enactment) are clear and unambiguous, effect must be given to them without resorting to any aid internal or external. It is the duty of the court to interprete the words of the lawmakers as used.”
In other words, the words of a statute must be construed in accordance with the intent of the lawmaker. The primary duty of a court in the interpretation of a statutory provision is to give effect to the words used. See ROSSEK VS ACB LTD (1993) 8 NWLR (PT.312) 382; OKORO VS NIGERIA ARMY COUNCIL (2000) 3 NWLR (PT.647) 77.
In the instant case, a cumulative reading of the above provisions of the Act as reproduced above and the Headquarters agreement more particularly Section 2 of the Act and Article III thereof of the Agreement confer legal capacities of a body corporate on the Appellant to the extent that it has capacity to enter into any contract and can institute legal proceedings and it acquire and dispose of movable and immovable property. The fact that the Appellant can institute legal proceedings clearly shows that it can sue and once it can sue, it follows therefore that it can equally be sued. It is therefore not true as contended by the Appellant’s counsel that the Appellant cannot sue or be sued or be subjected to any legal proceedings for acts done in the course of its business. The Appellant has legal capacity to enter into any legally binding contract and transact all sort of business related to its work in the country and it can acquire and dispose of any movable or immovable property. It can also institute legal proceedings. All these go to show that it has legal capacity to transact and conduct all its businesses and can therefore sue or be sued. In fact, it is arguable if without the capacity to conduct its affairs and business and to institute proceedings, the committee can be said to have proper and effective control of the management of its affairs. The Committee as an entity does not enjoy immunity. The Committee (Appellant) is different and distinct from its members and officials who in fact enjoy immunity from legal proceedings save in respect of certain aspects as provided under Section 5 (1) of the Act. The Section provides that the Head of the Delegation of the Committee except in so far as in any particular case the immunity is waived by the Committee shall enjoy personal immunity for acts performed in pursuance of his duties, etc as Chief Executive of the Committee. Same immunity is also extended to the officials of the Committee while exercising their function as such as enumerated under Section 6(1) (a) (b) & (c) as reproduced earlier in this judgment.
However, it is clear by the provisions of Section 3 (1) and (2) that all properties, archives and assets of the committee shall be exempt from search, requisition and confiscation and by subsection (2) such properties, archives and assets of the committee shall for the purpose of Public Safety and Public Order be subject to the Laws of Nigeria.
This section is also clear as to the immunity imposed on the properties, archives and assets of the committee. That is, such properties archives shall be exempt from search, requisition and confiscation by Law Enforcement Agents, that may for the purpose of investigation enter its premises. This does not affect Court Orders or Judgments which is constitutionally recognized under Section 6 (6) of the 1999 Constitution. Therefore, the question of immunity of the Appellant as distinct from its officials does not arise. The committee as a corporate entity is subject to the Laws of Nigeria. The case of FAWEHINMI V NIGERIA BAR ASSOCIATION (supra) cited by the Appellant counsel to support his argument that the committee is not a legal entity as it does not owe its creation to any statute in Nigeria is totally misconceived. The Act, Diplomatic Immunities and Privileges, (International Committee of the Red Cross) recognize the legal capacities of the Appellant. It is therefore a creation of statute. It does not need to be incorporated or registered under the Corporate Affairs Commission to enjoy legal personality. Section 2 of the Act clearly gives the Committee legal capacities of a body corporate that can sue and be sued in its own name. See also Article III of the Agreement. The argument of the Appellant’s counsel that, the Appellant is recognized as a body corporate for a variety of purpose but not for purposes of being sued in its own name is totally misconceived. It does not sound logical that the Appellant should enter into contractual obligation with individuals or other corporate bodies or groups and will not be sued for breach of obligation on its own part, just because it is an International Humanitarian Organisation under the United Nations. This does not accord with common sense, justice and fair play. Therefore, it must treat persons who contracted with them fairly by paying for such contracts.
The committee as a separate legal entity is different from its members who enjoy immunity while the committee does not. It has a separate and distinct life and existence apart from its members. When sued it is represented through its officials or legal practitioners, and the fact that its officials are immuned from legal proceedings does not ipso facto follow that they will not represent the Committee caught in legal battle before any court of law in Nigeria.
Based on the foregoing, it is my view that the Appellant enjoys legal capacities of a body corporate and can therefore sue or is sued in its own name and the lower court was therefore right when it held that the Appellant is a legal entity and can sue and be sued.
This issue is therefore resolved against the Appellant and in favour of the Respondent.
ISSUE 2:
Whether there was proper service of the originating process on the Appellant.
The contention of the Appellant on this issue is that the originating processes were served on the counsel to the Appellant who is not a party to the proceeding and yet the lower court assumed jurisdiction and proceeded with the matter. However, it is conceded by the Appellant, that having been unable to effect the service of the originating processes on the Appellant, the Respondent filed a motion Exparte dated 9th March, 2005 seeking leave of the court to serve the Appellant by substituted means which was granted by the lower court.
Upon a careful perusal of the record of the lower court, it is clear that the Respondent applied exparte for an order of substituted service on the Appellant upon the following grounds as deposed to in the affidavit in support of the motion exparte particularly paragraph 4(a)-(i) as follows:-
(a) That the bailiff of this Honourable Court went to serve the plaintiff at its office at Plot 436, Kumasi Crescent, Wuse II, Abuja, on the 7th day of March, 2005.
(b) That the bailiff of this Honourable Court was denied access to the principal officers of the Defendant by mobile policemen on guard at the premises and rough handled.
(c) That the policemen also make bold to give his name, address and force number to the bailiff of this Honourable Court.
(d) That as the bailiff dropped the court process at the registered office of the Defendant, he was forced at gunpoint to pick up the process and go away immediately or otherwise they will deal with him.
(e) That the affidavit of service already deposed to by the court bailiff attests to this truth.
(f) That by the hostility put up by the Defendant it will be difficult to make personal service of the process of this Honourable Court on the principal officer.
(g) That it is obvious that the Defendant deliberately intend to evade service of the court process.
(h) That the plaintiff intend to use substituted means vide by posting same through the Nigerian Postal Agency (NIPOST) to the defendant’s counsel; Chief Chris Ogunbayo and Co., of 3,Hospital Road, P.O. Box 1785, Lagos.
(i) That by this means, the Applicant believed that the court process will get to the Defendant.
It is clear by paragraph 4 (h) that the substituted service was to be effected by posting through the Nigerian Postal Agency (NIPOST) to the Defendant’s counsel; Chief Chris Ogunbayo and Co, of 3 Hospital Road, P.O. Box 1785, Lagos.
It is also agreed to by the Appellant that the originating processes together with the Order of Court made on 5th April, 2005 were served on the Appellant solicitors, Chris Ogunbayo & Co on the 7th April, 2005 via EMS Speed Post Reg.No.EE312485389NG by 11.45 am.
The main grudge of the Appellant was that service was effected on the Appellant’s solicitor who is not a party to the proceedings. That notwithstanding the Appellant filed a memorandum of appearance, a notice of preliminary objection together with written submission all dated 8th April, 2005 and filed on the 12th April, 2005 and took part in all proceedings thereafter.
On the part of the Respondent it is contended that the originating processes of the lower court were properly served on the Appellant pursuant to an application for submitted service granted by Order of court dated 5th April, 2005 whereof all processes were sent by substituted means via EMS, Courier Service, via a special bailiff appointed for that purpose by the court and as evidenced in the proof of service and affidavit of service dated 6th April, 2005 as shown on pages 50-51 of the record of appeal. It is also submitted that evidence of proof of service was conceded to by the Appellant in paragraph 5.02 (j) and 5.03 and submitted that this concession has totally contradicted all argument that there is no proof of service in the case file.
It is trite that the object of service is to give notice to the defendant so that he may be aware of and be able to defend if he may that which is sought against him. It is settled law that failure to serve a defendant is a fundamental vice as service of a Writ of Summons is a condition precedent for the exercise of a court’s jurisdiction over the subject matter of the action and over the defendant. See MADUKOLU V NKEMDILIM {1962} 1 ALL NLR 587; SKENCONSULT (NIG) LTD VS UKEY (1981) 1 SC 6; and OKAFOR VS IGBO (1991) 8 NWLR (PT.210) 476.
Under our law, an originating Process or Writ of Summons shall be served personally by delivering to the person to be served personally by the bailiff or an officer of the court. There are plethora’s of judicial authorities that failure to give or serve notice in a case where service of process is required, is a fundamental vice which renders such proceedings void and the person affected by it is entitled ex debito justitiae i.e. as of right to have any order made thereon set aside as a nullity because the court has no jurisdiction to entertain the proceedings. See WEMA BANK (NIG) LTD v ODULAJA (2000) 7 NWLR (PT.663) 1; KISARI INVESTMENT LTD V LA-TERMINAL CO LTD (2001) 16 NWLR (PT.739) 381. It is trite that jurisdiction is the spinal cord and life wire of a court of law and any decision by a court without jurisdiction is no decision at all and is subject to being nullified on appeal. See MADUKOLU VS NKEMDILIM supra.
The only exception to personal service of the process is by substituted service with the leave of the court where personal service has proved abortive. See OKEREKE VS EJIOFOR (1996) 3 NWLR (PT.434) 90. Where therefore, for any reason, personal service of court process proved abortive, substituted service can be employed which is service of a process upon a defendant by substituted means in any manner authorised by the rules of court other than personal service and is deemed as proper personal service on a defendant. The rules of court provide for this mode of service where it appears to the court that for any reason personal service cannot be conveniently effected on a defendant.
In the instant appeal, personal service could not be conveniently effected on the Appellant in the instant appeal. The Respondent applied to the lower court exparte for an order of substituted service on the Appellant through his counsel whom it is submitted is known to the Respondent through correspondences on the matter in dispute before the commencement of the action.
See paragraph 4(a)-(i) thereof of the affidavit in support of the exparte application for substituted service on the Appellant. It is in evidence before the lower court the Appellant was duly served by substituted means as directed by the lower court. The contention of the Appellant that the counsel is not a party in the proceedings is not tenable. Before an action is commenced, many correspondences on the matter in dispute would have passed between the parties through their legal practitioners. In such circumstances, it may be possible to know a defendant’s legal practitioner before the commencement of the action, and where a party is represented by a legal practitioner, service of any document may be effected on that legal practitioner and in the instant case, it is so ordered by the lower court since the Appellant could not be personally served.
It is not only necessary but desirable where a process of court has been served for the court to have before it evidence that the person to be served was indeed served. The appearance in court of the party served is the strongest evidence of service. It is therefore for this reason that the rules of court provides for the various ways of proving service either by certification, affidavit of service or personal appearance in court of the person served. In the instant case, the affidavit evidence deposed to in page 49 of the record and EMS delivery form and payment receipt at pages 50 and 51 and the appearance of the legal practitioner in court, all go to confirm or show that the Appellant was properly served as ordered by the court.
Proof of such service has been established, the Appellant appeared, entered appearance and participated in the proceedings. He cannot now be heard to complain that the service was effected on his legal practitioner. He has waived any right to complain in the matter. See JIKANTORO V DANTORO (2004) ALL FWLR (PT.216) 390.
Based on the aforesaid, it is my view that the Appellant was properly served by substituted means as ordered by the court and was therefore properly before the court. This issue is also resolved against the Appellant, and in favour of the Respondent.
On the whole, the appeal lacks merit and it is hereby dismissed. The ruling of the lower court delivered on the 29th June, 2005 dismissing the preliminary objection dated 8th April, 2005 challenging the competence/jurisdiction of the lower court to entertain the suit against the Appellant is hereby affirmed.
The Respondent is entitled to cost of the suit which is assessed at N50, 000 only.
Other Citations: (2009)LCN/3195(CA)
