Jerome Idiata & Ors V. Dr. Nkadi Okocha Ejeko (2004)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A
Suit No. 0/10/96 was initiated in the Ogwashi-Uku Division of the High Court of Delta State. Endorsed on the Writ issued on 17/1/96 is the plaintiff’s claim for!
(1) N3000.000.00 as special and general damages for assault and battery against the 3rd and 4th
defendants jointly and severally and
(2) N1, 700.000.10 as special and general damages for malicious prosecution against the four defendants jointly and severally.
The 3rd and 4th defendants entered appearance in the suit on 23/2/96 . On 22/3/96 the plaintiffs filed a motion to set down the case for hearing in default of appearance by the 1st and 2nd defendants. On 15/4/96 the plaintiff filed another motion, this time asking for enlargement of time to file his statement of claim, having run out of time. The statement of claim was subsequently filed on 7/5/96. On 19/6/96 the presiding Judge Awala J. made an order transferring the case from Ogwashi -Uku to Issele- Uku High Court for hearing and determination having disqualified himself from hearing the case. On 12/6/96 the plaintiff filed another motion in the suit still in Ogwashi-Uku even though the case was transferred to Isre- Uku Division on 19/6/96. The suit now has a new suit NO.HC1/10/i6/M2. In the motion the plaintiff/applicant asked for the following reliefs against the Defendants/Respondents “an order for judgment be entered for the plaintiff/ Applicant the Defendants/Respondents having failed neglected refused to file their statement of Defence the period having expired” In the records it would appear that the 1st mention of the suit now number HC1/10/96 before the Issele-Uku High Court was on 25/6/96. This was before Pemu J who adjourned same to 10/7/96 for mention. On 19/6/96 the Presiding judge Pemu J. set down the case for hearing in default of appearance by the 1st and 2nd defendants and adjourned same to 22/10/96 for hearing. On the same date 19/6/96 counsel for the plaintiffs withdrew the motion for judgment filed on 12/6/96. Even though the reason for the withdrawal was the motion for extension of time to file the statement of defence by the 3rd and 4th defendants the entire motion for judgment against the defendants was struck out having been withdraw. On 22/10/96 only the 1st and 2nd defendants were listed. The court heard argument from counsel for the plaintiff purportedly on the motion for judgment. The court made the following order.
“Order as prayed. Judgment is hereby entered for the plaintiff as per his Writ of summons dated 15th January 1966”
The 1st and 2nd defendants on 12/5/97 filed a motion on Notice asking for the following reliefs.
- An order for leave to enter appearance in the suit out of time.
- An Order deeming the proposed Notice of entry of appearance as properly filed and served.
- An order to set aside the judgment delivered on 22/10/96 against the 1st and 2nd defendants.
- An order to set aside the Writ of attachment dated 14th January 1997.
- An order for extension of time to file the 1st and 2nd defendant statement of defence and
- An order to deem the joint statement of defence of 1st and 2nd defendants as properly filed and served.
The motion was dismissed in its entirety on 6/8/98 with the court ordering that “the main case is adjourned to 24/9/98 for continuation being dissatisfied with, and having lost the motion to set aside, the judgment the 1st and 2n1 defendants now appellants, with the leave of court as they were out of the time, filed a Notice of appeal against the judgment of 22/10/96. The three grounds of appeal filed, short of their particulars, are hereunder reproduced.
GROUND 1. The learned judge erred in law and lacked jurisdiction to entertained this suit but went on to enter judgment in favour of the Respondents to wit. Judgment is hereby entered for the
plaintiffs as per his writ of summons dated 15th January, 1966.”
GROUND II. The learned trial judge erred in law when he entered judgment for the Respondent Ito wit: “Judgment is hereby entered for the plaintiff as per his writ of summons dated 15th January, 1996.”
GROUND III . The judgment is against the weight of evidence and has occasioned substantial miscarriage of justice.”
From the three grounds of appeal the appellants contrary to well settled legal principles, formulated four issues for determination.
“ISSUE 1. Whether the learned trial judge has jurisdiction to entertain the suit and enter judgment in favour of the Respondent without any proof of service of court processes on the appellants.
(Issue distilled from ground 1).
ISSUE II. Whether the trial judge was right in entering judgment for the plaintiff as per his writ of summons when his claim was both liquidated and unliquadated (ground 2).
ISSUE III. Whether the learned trial judge was right in law when he entered judgment as per the writ of summons for liquidated and unliquidated demands without particulars of claim out -lined in the said writ of summons (grounds 2 and 3). ”
ISSUE IV Whether the learned trial judge was right to have entered judgment against 1st and 2nd appellants in their personal capacity for a wrong purportedly committed in the course of their official duties ground 3″).
The Respondent presented two issues for determination.
(a) Whether the learned trial judge was not competent to hear the matter in view of the proof of service before the court.
(b) Whether the learned trial judge was not right in law to have entered judgment as per the wit of summons”.
At the hearing of the appeal each side relied on, and adopted, its brief of argument.
On issue one in his brief of argument learned counsel for the appellants said the motion of judgment filed on 12/6/96 had no address for service on the appellants, that service was effected on one Inspector Ezema of the Legal department SIIB. Asaba even though there was no application, and no order , for substituted service. He said the service in this case was not in compliance with order 12 rule 2 of the High Court (Civil Procedure Rules of Bendel State applicable and Delta State. His argument applies to all the processes in the suit with the exception of the writ of attachment. Counsel relied on I.T.F. V. OKSON (1989) 2 NWLR pt 103,337, A.C.B. V. LOSADA NIG LTD (1995) SCNJ 158 at 150 ratios 3 and 4 LEEDO V. BANK OF THE NORTH (1998) 7 SCNJ 328, MADUKOLU & ORS VS NKEMDILIM (1962) part 2 ALL NLR 257 of 295, F.B.N. V. OBANDE (1998) 2 NWLR538. He referred to ratio 10 in page 160 of A.C.B. V. LOSADA NIGERIA LIMITED (Supra) and, argued that the trial court erred for refusing to set aside the judgment. He referred also to CHARLES EJIKE V. NWAKWESI IFEADI (1998) 6 SCNJ 97. MANAGEMENT ENTERPRISES v. OTUSANYA (1987) 4 SCNJ. (no page cited) EGBUNIKE V. ACB (1995) 2 SCNJ 59. at 75, at 76, FRITH V. DOWEGAL(1934) 2 D.P.C. 527. JEJE VS OLUDEJI & ORS V. OBA ADEKUNLE AROMOLARAN (11996) 6 SCNJ (no page cited) OLORUNMBE GBAFE VS. PRINCE FRANK GBAFE & ORS (1996) 6 SCNJ 167, all on the issue of non personal service of court process in absence of order for substituted service. Counsel submitted that service on the O/C legal of state C. I. D. Asaba of processes meant for service on the appellants in absence of order for substituted service was void and that the judgment dated the 22nd October 1996, was given without jurisdiction and ought to be set aside.
On issue II counsel argued that the claim for special and general damages was not set down for hearing and the court could not have properly assessed the Respondent’s claim. He referred to the records and argued that the motion for judgment was struck out on 19/9/96, and on 22/10/96 when the court purported to enter judgment based on it there was no motion before the court. He referred to JOACHIN EBEILUIGBUHI OSEYOMON & ANOTHER VS. S.O. OJO (1997) 7 SCNJ 365 at 386, and urged the court to allow the appeal on issue II.
In respect of Issue III, counsel referred to OSEYOMON V. OJO (SUPRA) and argued that the Respondent did not lead evidence to prove his entitlement to special damages. He cited NWACHUKWU NZERIBE VS DAVE ENGINEERING COMPANYLIMITED (1994) 9 SCNJ 161 at 176. ODIBA V AZEGBE (1998) 7 SCNJ 119 at 136 and IJEBU ODE LOCAL GOVERNMENT COUNCIL V. ADEDEJI BALOGUN & ANOR (1991) 1 SCNJ (no page cited). He urged the court to resolve this issue in favour of the appellant.
In issue IV counsel argued that the appellants are police officer. They did not act outside the scope of their employment nor were they negligent. They should not have been sued in their personal capacities and the non-joinder of their employer renders the suit incompetent. He cited the following cases: CROSS RIVER STATE NEWSPAPER CORPORATION V MR. J.L. ONI ND ANOTHER (1995) 1 SCJN 218 IFEANYI CHUKWU (OSONDU) COMPANYLIMITED VS SOLEH BONEH (NIG) LTD (2000) 5 NWLR part 656 page 322 at 326 particularly at 367. He urged the court to resolved each of the four issues in favour of the appellants.
In his brief of argument learned counsel for the Respondent said that the Writ of summons not only demands that the defendants enter appearance but goes further to warn of the consequences of default in entering appearance. It was right for the trial court to enter judgment for the Respondent for the failure of the appellant to enter appearance within the period prescribed in the rules, there being no request for enlargement of time. He relied on order 14 rule 5 of the High court(Civil Procedure) Rules 1988 of Bendel State applicable in Delta State and argued that it is not a requirement of the rule that evidence must be given to entitle the Respondent to judgment.
In default of appearance the suit will be treated as undefended and Judgment may be entered for the plaintiff or the case may be set down for hearing. He relied on BRITISH AMERICAN INSURANCE COMPANY LIMITED AND ANOR VS OMO EDEMA SILLE (1993) 2 NWLR 567. Counsel argued that the appellants had two options to seek to set aside the judgment or to appeal against same, addicting that the motion to set aside the judgment was denied. He relied on “Practice and Procedure of the Supreme court. Court of Appeal and High Court of Nigeria by T, A. Aguda 2nd Edition page 194 arts 1405 and 1407. He stated that the application of the Respondent was set down for hearing pursuant to Order 14 rule 5 (supra) and consequently judgment was entered for the Respondent.
In his preliminary objection on points of law counsel for the Respondent impugned the appellant’s ground 1 as defective and incompetent as according to counsel two grounds were merged. He argued that the issue of service of process canvassed did not arise as there is no appeal against the ruling of Makwe J. on the 6th August 1998. He argued that the issue of public Officers was not raised in any ground of appeal and it is therefore incompetent. He referred to UGWU V. ABA NLR 438 AND WILLIAMS & ORS V. HOPE RISING (1) (2) 1 – 2 SC 145 for guidance in application to set aside default judgment.
He stated that Pemu J. being satisfied that the Writ was served entered judgment for the Respondent and in the application to set aside the Judgment Makwe J denied the order on being satisfied that the appellants were properly served. Counsel said that the two findings of court are consistent and ought to be upheld. He urged the court to dismiss the appeal.
First of all I will deal with the last thing in the Respondent’s brief that is the preliminary objection on point of law. Ground one of the appellants ground of appeal is that the learned trial judge erred in law and lacked jurisdiction to entertain this suit…” The Respondent objects on the ground that it “is defective and incompetent being two grounds merged together (composite)” Counsel did not state the two grounds be said were merged. May be counsel’s argument is based on the expression “erred in law and lacked jurisdiction. In my view there is an error in law when a court proceeds on hearing a case when it has no jurisdiction to do so. The argument that “issues canvassed (proliferated) do not raise issues of service of process since there is no appeal against the ruling of Justice T. C. Makwe of 6th day of August 1998″ losses sight of the fact that only the single issue of jurisdiction was canvased. The fact that there is no appeal against the Ruling of Makwe J. does not preclude the appellants from raising the issue of jurisdiction based on want of proper service of court processes meant for service on them in the appeal against the judgment they failed to set aside. The objection is over ruled. Ground 1 of the ground of appeal is neither defective nor incompetent and the single issue of jurisdiction arises from the said ground of appeal.
The issue of Public Officers acting or not acting within their scope of official capacity is an issue of fact and relates to the Ominibus ground of appeal.
With respect, I think learned counsel for the Respondent derailed when he switched to argument on considerations for setting aside a judgment in default of appearance. Counsel himself said there was no appeal against the order denying the motion to set aside the judgment yet he proceeded to argue that Makwe J was justified in denying the motion.
Such argument is wasted, going to no issue in the appeal before this court.
Counsel referred to what he called ” two findings of court that are consistent ….. was if the findings involved more than one court in the hierarchy of courts. There is only one finding that proper service was effected and this was echoed by another judge of the same court.
Learned counsel for the Respondent rightly conceded that the appellant has two option: to apply to set aside the ruling or to appeal against it. The two options are not exclusive. The fact that he took one of the options but failed to achieve the desired result does not ipso facto estop him from taking advantage of the other choice. The appellants have two weapon as its were. They aimed the first weapon but it missed the target. They are entitled to deploy their second weapon as long as they comply with any condition precedent such as obtaining leave if out of time as in this case.
Having disposed of the above peripheral matters I will now determine the merit vel non of the appeal, but first I will deal with the issues formulated by the parties.
The court and in deed, the Apex court, have times without number harped on the impropriety of splitting one ground of appeal into a number ‘of issues for resolution. The settled principle is that issues should not be in excess of the grounds of appeal from which they are framed. See AGU V IKEWIBE (1991) 1 NSCR pt 180 385, A.G. BENDEL STATE V AIDEYAN (1989) 4 NSLR (pt 118646, ADELAYD V. FANOIKI (1990) NWLR (pt 131, 137.
Indeed except where the grounds of appeal so dictate, it is not good practice to distle an issue from each ground of appeal. See ANIE & ORS V CHIEF UZOKA & ORS (1993) 8 NWLR (pt 304) P.I. BURCLIMOH V BAMBOSE (1991) (1989) 3 NWLR (pt 109) 352. UTIL V. ONOUYIVWE (1991) 1 NWLR (pt166, at 214. The above notwithstanding learned counsel for the appellant framed four issues from three grounds of appeal, having split ground three of the grounds of appeal into issues 3 – 4. Issues 2 and 3 appear to deal with the same thing. Issue 2 questions the right of the trial judge to enter judgment as per the Writ of summons when the claim in both liquidated and unliquidated. Issue 3 impugns the judgment on the ground that the claim is for liquidated and unliquidated sums in absence of particulars of the claim. In my view issue 2 and 3 can be conveniently resolved into one issue so that the appellants now have issues 1 and 2 with the original issue 4 now numbered issue 3.
Issues 1 and 2 in the respondent’s brief appeal to synaronise with issue 1 and 2 respectively in the appellant’s brief argument. Issue 1 has the potential of determining the appeal one way or the other. If I resolve issue 1. in favour of the respondent I will proceed to deal with the other issues in the appeal. On the other hand if issue 1 is resolved against the Respondent the court cannot properly deal with the other issues in the appeal without prempting the subsequent trial in view of the order that will necessarily flow from the success of issue one in the appellant’s brief of argument.
The argument of learned counsel for the appellant on issue 1 is based primarily, on two vital points, One, that there was no personal service on the appellants of the originating and other processes in the suit and two., that as at 22/5/86 there was no motion for judgment, the motion filed on 12/6/96 having been withdrawn by counsel for the respondent. If there was no proper service then all proceedings leading to and including the default judgment are vitiated. On the other hand if there was proper service as contended by learned counsel for the respondent but the motion purportedly heard and granted on 22/10/96 was withdrawn at an earlier date then the proceedings of 22/10/96 and the subsequent judgment are null and void. It is surprising that in the face of the appellant’s claim that the motion the lower court purported to heard and grant on 22/10/96 was earlier struck out on the application of learned counsel for the respondent, counsel maintained a studied silence, a silence that in the circumstances spoke volumes.
Now on the issue of service. It is not in doubt that service of court processes, where service is required is the final step that ignites the jurisdiction of the court to hear and determine matters competently and properly placed before it. Want of service where service is required completely and effectively robs the court of jurisdiction to entertain the matter unless the party to be served waves service and submits to the court’s jurisdiction.
Failure to effect proper service where services is required is a fundamental vice that effects the validity of subsequent proceedings. WINPEY LIMITED V. BALOGUN (1966) 3 NWLR (pt 23 374 and 325. Service can be personal or by substitution. From the records there was no application for substituted service and none was granted or could have been granted. A party can not arrogate to himself the power to effect service by substituted means. It is the court that can make order to that effect. In any case the Respondent and the court below did not rely on substituted service but on alleged personal service.
Now the question is whether or not there was personal service of the originating process on the appellants as envisaged in Order 12 rule 2 of the High Court (Civil Procedure) Rules of the defunct Bendel State of Nigeria as applicable in Delta State. It provides Order 12 rule 2 “Save as other-wise prescribed by any of these rules an originating process should be served personally by delivering to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original process without exhibiting the original thereof” In the affidavit of service , one Patrick Chiemeke, Assistant Chief Bailiff of the High Court of Justice Ogwashi-Uku swore that on 1st February, 1996 at 10.a.m. he served “upon the 1st defendant (Jerome Ichiata) Commissioner of police Delta State through Inspector Ignatius Ezema c/o legal S. I. I. B. section, Asaba Writ of Summons issued out of this court at Ogwashi-Uku upon the 1st defendant upon the complaint of the plaintiff delivering the same personally to the 1st defendant (Mr. Jerome Ichiata) D.P.O. Ughelli N.P.F. Commissioner of police Delta State through Inspector Ignatius Ezema o/c legal S. I. I. B. section Asaba, Delta State Police Command/Benin/Osha Express Asaba.”
Prior to the default judgment of 22/10/96 all processes for service on each of the appellants were served in like manner. If the process is served on the 1st defendant by delivery of same personally to the 1st defendant, the same process could not have been served on the 1st defendant, through Inspector Ezema o/c legal S. I. I. B. there being no suggestion that the same processes were served twice, one delivered to the 1st defendant personally and another delivered to him through Inspector Ezema. In the circumstances the facts sworn to by the Chief Bailiff are mutually in conflict. Be that as it may one is left in no doubt that the process meant for service on the appellants were delivered to a 3rd party, the o/c legal, Inspector Ezema. There are two instance in which this mode of service can be valid, one, where there was a prior order for substituted service and two where the party to be served has accepted service on him through a 3rd party even though there was no order for substituted service. Neither was was the case in the appeal before the court.
In the claim endorsed on the Writ of summons the address for service on the 1st defendant is stated as Mr. Jerome Idiata D. P.O. Nigeria Police Station Ughelli and that of the 2nd defendant is Mr. Mosco Imodieme, Station Officer Nigeria police station near Sapele Jesse. There is no evidence that any attempt was made to serve the appellants at their stated addresses.
In my considered view there was no personal service of the original process on either of the appellant and since there was no order for substituted service of the process on either the 1st or the 2nd defendant/appellant. I hold that there was no service of the processes on either the 1st or the 2nd defendant/appellant.
Therefore all proceedings leading to and including the default judgment of 22/10/96 were taken without jurisdiction and ipso facto null and void. Service of court process where required as in the instant case is a condition procedent to the exercise of jurisdiction.
Scott-Emuakpor vs. Uhavhe (1978) 12 SC 41 at 46 OBIMONURE V. ERINOSHO (1961) 1 All NLR 50. Service of court process where service is required is the bedrock of the court’s jurisdiction to entertain the matter before it. Unless the party to be served submits to jurisdiction the court labours vain if it proceeds to take proceedings without proper service of processes. The absence of the appellants as the 1st and 2nd defendants in the lower court should have alerted the court to take a heard and critical look at the return of service filed by the bailiff. Had the court taken pains to look at the affidavit of service it would have been apparent that there was no service and proceedings based on the purported service is exercise in futility as the court lacked jurisdiction to entertain the matter until the appellants as defendants had been served the originating processes.
An interesting but at the same time disturbing aspect of the case in the lower court is that there was no motion pending before the court on 22/10/96 upon which the default judgment could have been entered. The motion for judgment was filed on 12/6/96 based on the defendants/appellants neglect to file their statement of defence as and when due. It was not against only the 1st and 2nd defendants. The entire motion for judgment was withdrawn and struck out on 19/9/96. The records (page 20) shows that the entire motion and not only as it affects any of the defendants was withdrawn and struck out. It was recorded “Mr. E. N. Ebite says he is withdrawing his motion for judgment dated 12th June, 1996 and he is asking for N1,000.00 costs in view of the motion filed by the 3rd and 4th defendants/respondents asking for extension of time within which to file their statement of defence.
Court. Motion for judgment filed on the 12th day of June 1996 is hereby struck out. Costs should be in the cause ” How could the lower court presided over by the same judge who struck out the motion on 19/9/99 and possessed of its records purport to hear the motion it struck out barely a month ago and make the monumental order to wit: “Order as prayed. Judgment is hereby entered for the plaintiff as per writ of summons dated 15th January 1996” If the fact that the motion had been struck out was an oversight how could one rationalise the judgment given as per the writ of summons in default of the statement of defence when the claim endorsed on the writ is a lump sum for both special and general damages. However I need say no more on the merit of the case in view of the order that is inevitable in the circumstances.
Three counsel appeared in the lower court for the plaintiff/ Respondent/two of them from the same chambers. Even though there was a change of counsel either the court or the records changed as well.
Where a point is made and the point is so crucial that it can determine an issue in the appeal it is incumbent on the opposing counsel to respond to, controvert or challenge, the point so made. Where none of the above is possible counsel should have the courage and decency to concede the point instead of dwelling on irrelevances thereby wasting the resources and time of everyone involved in the matter.
In conclusion I resolve the 1st issue in this appeal against the respondent and in favour of the appellants. The originating process was not served on the appellants in compliance with Order 12 rule 2 of the High Court (Civil Procedure) Rules (supra and for this reason the entire proceedings leading to and including the default judgment of 22/10/96 are a nullity. Further more the default judgment itself is bedevilled with a more fundamental vice. The order for judgment was an unwarranted ex-gratia award made to the detriment of the appellants as no motion for judgment was pending in the court on 22/10/96. In view of the order I must make as a matter of necessity I will not determine the rest of the issues since they relate to the merit of the case.
I allow the appeal as meritous and set aside the proceedings of the lower court leading to and including the default judgment of 22/10/96. I order that the Suit No. HC1/10/96 be sent back to the Delta State High Court of Justice for trial de novo before a judge other them Awala J. who recused himself, Pemu J. who struck out the motion judgment and yet later granted the relief therein sought or Makwe J. who found that there was proper service of the originating process on the appellants.
The appellants are jointly entitled to costs which I assess and fix at N3, 000.00.
Other Citations: (2004)LCN/1610(CA)
