Mohammed Mari Kida V A.D. Ogunmola (2006)
LAWGLOBAL HUB Lead Judgment Report
MUSDAPHER, J.S.C.
In the High Court of Justice of Borno State of Nigeria, in the Maiduguri Judicial Division and in suit No. M/391/94, the plaintiff claimed against the defendants as follows:
(a) An order for specific performance compelling the defendants jointly and severally to conclude the agreement for assignment in respect of property situate and lying at No. 4A Ahmadu Close, Damboa Road, GRA, Maiduguri between the plaintiff and the defendants by delivering of the title deeds and the physical possession of the said property to the plaintiff. Or in the alternative – An order for the repayment to the plaintiff the sum of N625,000.00 by the defendant being the sum collected by the defendants from the plaintiff as consideration for the assignment of the said property. N50,000.00 general damages for the breach of contract.
(b) The cost of the suit.”
The five defendants mentioned in the suit included the respondent herein Mr. A. D. Ogunmola who was the second defendant. It appears from the printed record, that the court bailiff was only able to serve personally the writ and the accompanying statement of claim on the 1st defendant and the 5th defendant, both though the 1st defendant, Pastor Mohammed Audu Mshelia. In an enrolled order issued by the learned trial Judge, leave was granted to the plaintiff to:-
“1. Issue and serve the 2nd defendant (respondent herein) with the writ of summons and other court processes out of jurisdiction.
- An Order to serve the 2nd, 3rd and 4th respondents/defendants with the writ of summons and other court processes by means of substituted service by pasting same at 4A Ahmadu Bello Close, ORA, Maiduguri, being the last known place of abode of the 2nd, 3rd and 4th respondents/defendants.”
Apparently, when none of the defendants filed a defence to the statement of claim accompanying the writ of summons, and apparently when 2nd, 3rd and 4th defendants were served, the plaintiff filed a motion praying for judgment to be entered in default of statement of defence against all the defendants. In opposition to this application, the first defendant filed a counter-affidavit on the 26/11/1996. while on the 18/10/1995 the 2nd and 5th defendants, applied by a motion on notice and prayed for orders to extend time within which to enter conditional appearance and to deem the proposed memorandum of appearance under protest as duly filed. In his ruling delivered on the 26/3/1996, the learned trial Judge granted extension of time to enter the conditional appearance and deemed the appearance under protest as duly filed.
On the 12/6/1996, the plaintiff’s motion to enter judgment in default of defence against the defendant was moved by the learned counsel for the plaintiff: Only the 1st defendant was represented by counsel who opposed the application, the other defendants including the 2nd defendant, the respondent herein, were absent from court, though they were said to have been served. In his ruling on the aforesaid motion delivered on the 24/12/1996, the learned trial Judge granted the plaintiff’s prayer and entered judgment in default of defence against all the defendants, including the 2nd defendant. In the said judgment, the learned trial Judge ordered the defendants including the 2nd to jointly and severally refund the sum of N625,000.00 to the plaintiff, including costs. In order to execute the judgment, the plaintiff successfully obtained an ex-parte order granting him leave for the attachment and sale of the property situate at 4A Damboa Road, ORA, Maiduguri in the satisfaction of the judgment.
On the 3rd of July, 1997, the 2nd defendant filed an application before the trial Judge praying for the following orders:-
“(a) An order extending the time within which to apply to set aside the judgment of court entered in this suit of the 24/12/1996.
(b) An order setting aside the judgment of court entered in this suit on the 24/12/1996 in default of appearance and defence.
(c) An order setting aside the order of court made on the 17/2/1997 granting leave to the plaintiff to issue writ or execution against the immovable property or the judgment debtors.”
The 2nd defendant filed an affidavit of urgency and also the affidavit in support of the motion. The 2nd defendant deposed that he was the registered owner and the holder of the Right of Occupancy of the properties Nos. 4 and4AAhmadu Close, Damboa Road, GRA. Maiduguri covered by Certificate of Occupancy NE/3.198. He deposed further that he assigned and conveyed the properties to Faith Revival Ministries Church and left Maiduguri to settle down in Ibadan with his family since 1995. He denied knowledge or any transaction with the plaintiff and he never appointed the 1st defendant as his agent and denied receiving any sum of money from the 1st defendant. He also denied any service on him of the processes or this suit as he was in Ibadan having relocated there with his family since 1995. He further denied appointing or engaging any person to appear for him in this suit. The plaintiff filed a counter affidavit in which it was deposed that the 2nd defendant was served by substituted service pursuant to the order of court made on the 28/2/1995. It is further deposed that the 2nd defendant entered appearance and had engaged the service of counsel who entered conditional appearance on his behalf and appeared in court on his behalf, that the motion for judgment in default of pleadings was duly served on the 2nd defendant through his counsel. It was further deposed that the 2nd defendant was still the legal owner of the properties before the execution or the judgment in this matter.
In his ruling on the matter delivered on 25/7/1997, the learned trial Judge agreed with the plaintiff that the 2nd defendant was duly served with all the processes by substituted means i.e. by pasting the processes on the door of the last known place of abode of the 2nd defendant and that the 2nd defendant was represented by counsel who had appeared for him on a number of occasions. The learned trial Judge found no justifiable reason to grant the prayer of the 2nd defendant. The application was accordingly refused.
The 2nd defendant felt unhappy and appealed against the ruling of the Court of Appeal, Jos. The issues submitted to the Court of Appeal for the determination of the appeal, included, the jurisdiction of the trial court to adjudicate in the matter where a party claimed that he had not been served with the court processes. The issue of what amounts to proper service. After dealing with some preliminary matters including the notice of preliminary objection and a respondent’s notice that the ruling of the trial court, the subject matter of the appeal, be affirmed on other grounds, the Court of Appeal allowed the 2nd defendant’s appeal and set aside the default judgment entered by the trial court on the 24/12/1996. The ex-parte order granting the plaintiff leave to execute the judgment on the immovable properties of the 2nd defendant was also set aside.
The plaintiff, (hereinafter referred to as the appellant) felt disgruntled with the decision of the Court of Appeal has now appealed to this court. The notice of appeal contains 5 grounds of appeal. Distilled from the grounds of appeal both the appellant and the respondent agree that only one issue arises for the determination of the appeal and the issue is as follows:-
“Whether in the circumstances of this case, the court below was right in considering and declaring the writ of summons and the service of the writ of summons on the respondent was null and void for non compliance with the rules of court and sections 97, and 99 of the Sheriffs and Civil Process Act.”
Now, there is no dispute and it is common ground that the respondent was no longer resident within the jurisdiction of the court when the writ was filed, that was why the appellant on the 28/2/1995 obtained the order to issue and serve the respondent with the writ of summons outside the jurisdiction of the court. (Emphasis supplied).
But what is amazing and difficult to understand is that the same order also granted the appellant leave to serve the respondent with the originating processes by substituted means within jurisdiction by pasting the same at No. 4A Ahmadu Close, GRA, Maiduguri being the last known place of abode of the respondent. It is also not disputed that the respondent was served not in pursuance of the order granted for the issuance and service of the writ out of jurisdiction but by the substituted means. The appellant in an affidavit sworn in support of the application to enter judgment in default of appearance (see page 8 of the record) stated in paragraph 5 of the affidavit thus:-
“5. That I was informed by the said Haruna T. Mshelia when I verily believe, that the 2nd, 3rd and 4th defendants/respondents were served by substituted means pursuant to an order of this Honourable Court.”
Now, the appellant applied to issue and serve the writ on the respondent outside the jurisdiction of the court and yet the appellant was served by substituted means, by pasting the originating processes on the last known abode of the appellant within jurisdiction, when it was manifestly clear that the respondent was no longer resident there or within the jurisdiction of the court. For a defendant to be legally bound to respond to the order for him to appear in court to answer a claim of the plaintiff, he must be resident within jurisdiction see National Bank (Nig.) Ltd. v. John Akinkunmi Shoyoye and anor. (1977) 5 SC 181. Substituted service can only be employed when for any reason, a defendant cannot be served personally with the processes within the jurisdiction of the court for example when the defendant cannot be traced or when it is known that the defendant is evading service. Also where at the time of the issue of the writ, personal service could not in law be effected on a defendant, who is outside the jurisdiction of the court, substituted service should not be ordered see Fry v. Moore (1889) 23 Q.B.D. 395. If the defendant is outside the jurisdiction of the court at the time of the issue of the writ and consequently could not have been personally served in law, not being amendable to that writ, an order for substituted service cannot be made, see Wilding v. Bean (1891) 1 QB 100.
In the instant case, the respondent was known to be out of jurisdiction, and it is not in dispute that the respondent had moved out of Maiduguri to Ibadan, where he had relocated with his family long before the issue of the writ of summons. It is trite law, that after its issue, a writ of summons or any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires to, that which is claimed against him. Where service of a process is legally required the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitae to have the order set aside as a nullity. See Obimonure v. Erinosho (1966) 1 All NLR 250; Mbadinuju v. Ezuka (1994) 10 SCNJ 109, (1994) 8 NWLR (Pt. 364) 535; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6; Adeigbe v. Kusimo (1965) NMLR 284. Service of the originating process has been held to be a condition precedent to the exercise of jurisdiction by the court out of whose registry the originating process was issued. See National Bank (Nig.) Ltd. v. Guthrie (Nig.) Ltd. (1993) 4 SCNJ at 17; (1993) 3 NWLR (Pt. 284) 643.
The validity of the issue of the writ and the service of the court on the respondent was raised before the trial Judge and the learned trial Judge in his ruling on this issue stated thus:-
“Let me at this juncture dispose of the issue of whether the applicant can rely on the ground that there was no valid writ issued before the issue of service could be visited. I am in full agreement with Mr. Mshelia that parties are bound by the case they set before the court ‘” the issue of the validity of the writ is alien to the application of the appellant. It is not one of the grounds set out in the motion, therefore the same cannot be canvassed. I am in full agreement with Mr. Mshelia that the ground and the submission must be disregarded.”
Thus, the trial court disregarded the complaint of the respondent on the validity of the issue and service on him of the processes. The Court of Appeal rightly in my view, held that the trial Judge acted erroneously to have discountenanced the argument of the counsel for the respondent on this issue. In my view, the validity of the originating processes in a proceeding before a court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.
However, of more fundamental nature, the respondent who was outside jurisdiction, claimed to be unaware of the suit as he was not served with the originating process outside the jurisdiction of the Borno State High Court as properly ordered by the Court. He was allegedly served by substituted means. As shown above, that was no service.
As mentioned before in this judgment, service of process on a party to a proceeding is crucial and fundamental. See Auto Import Export v. Adebayo (2002) 18 NWLR (Pt.799) 554; SGBN v. Adewunmi (2003) 10 NWLR (Pt.829) 526; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of jurisdiction was not fulfilled. That being so, the trial court, in the instance case had no jurisdiction to hear the appellant’s application and enter judgment against the respondent in default of filing statement of defence. The proceeding as far as it affected the respondent on the 24/12/1996 was a nullity. See also Scott-Emuakpor v. Ukavbe (1975) 12 SC 41. See U.B.A. Plc. v. Okonkwo (2004) 5 NWLR (Pt.867) 445.
Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of counsel since where there is no service, there is no valid trial. It was manifest and common ground that the respondent was known to be out of jurisdiction. Paragraph 3 of the statement of claim accompanying the writ of summons states:
“3. The second defendant is a business man who resides at Ibadan, Oyo State.”
The learned trial Judge on the 28/2/1995, made an ex-parte order to issue and serve the writ of summons on the respondent out of jurisdiction. But by paragraph 4 of the affidavit in support of the motion for judgment in default of defence, it was deposed to that the respondent was “served” with the originating process by substituted means, that is to say by pasting the same on the door of No. 4A Ahmadu Close, Damboa Road, ORA, Maiduguri within jurisdiction. So the writ was never sealed to be served out of jurisdiction and the 2nd respondent was never served as ordered by the trial court. This is enough to dispose of the appeal. There is no need to discuss sections 97 and 99 of the Sheriffs and Civil Process Act. I accordingly dismiss the appeal and affirm the decision of the Court of Appeal. The respondent is entitled to his costs against the appellant assessed at N10,000.00.
SC.383/2001
