Nelson Ononye & Ors V. Right Revd. Monsignor C. Chukwuma (2005)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

This appeal originates from a writ of summons issued at the Registry of the High Court of Justice, Asaba, Delta State on the 28th of April, 1999. The respondent as plaintiff sued the appellant and other defendants for several declarations and an injunction. The address for service of the appellant was stated as follows:-

“The first defendant

Mr. Nelson Ononye

C/o Mr. Fideline O. Ononye

No. 40, Jaffet Street,

Cable Point, Asaba.”

On the same day, the 28th of April, 1999, the respondent filed an ex-parte motion praying the lower court for an order of interim injunction, to restrain the “defendants – from creating and using an access road behind the Saint Joseph’s Catholic Church Premises, Asaba”, and “from further trespass”. Attached to the affidavit in support of the motion as exhibit A, was a letter the appellant wrote to the respondent, wherein his address is stated as follows –

“Mr. Nelson D. Ononye

C/o Gamla Nigeria Ltd.,

Plot A39 Della Crescent

G. R. A. Benin City

Edo State.”

The lower court granted the application as prayed on the 29th of April, 1999, and on the 4th of May, 1999, the respondent filed a motion on notice brought pursuant to Order 8 rule 1 of the High Court Rules praying the court “to commit the defendants to prison for disobedience of the court’s order of interim injunction”. On that same day, 4th May, 1999, the lower court ruled as follows:-

“Work has continued unabated at the site in question inspite of order of court to the contrary. 1st defendant is hereby ordered to be arrested, his servants and agents especially those working on the site are hereby ordered to be arrested and brought to court on 5/5/99 to show cause why they should not be committed to prison for contemptuously flouting the orders of this court.”

On the 5th of May, 1999, two of the workers on the site were ordered by the lower court “to be remanded at Ogwashi-Uku Prison”, and the matter was “adjourned to 10/5/99 for hearing”. However, a motion ex-parte was filed that same day, 5th May, 1999, praying the court to vacate the Order remanding the applicants in prison custody. Paragraphs 5 & 6 of the affidavit in support of the motion ex-parte reads as follows:-

“5. That prior to our arrest, we were not aware of any dispute in respect of the land.

6. That we were never served with any process or order of this or any other court in respect of the land before we were arrested, disgraced and brought before this court which summarily ordered that we should be held in custody until Monday 10th May, 1999.”

The above application was moved on the 7th of April, 1999, and “adjourned to 10/5/99 for Ruling”, on which day the lower court ordered the release of the applicants from prison custody. On the 13th of July, 1999, the appellant filed a motion on notice praying the lower court for the following Orders:-

“1. Setting aside the Order made 4th May, 1999 for the arrest of the applicant and his servants and agents (i.e. the first defendant, his servants and agents).

2. Setting aside the writ of summons in this suit. (Italics mine)

And Further Take Notice that the grounds of this application are:-

(a) The writ of summons was not and has not been served on the first defendant.

(b) There was no order of court that the 1st defendant be served at Benin City outside the jurisdiction of this court or by substituted service of any kind.

(c) The writ of summons did not contain the place of abode of the 1st defendant as required by Order 5(2).

The appellant himself deposed to an 11-paragraph affidavit in support of the above motion, wherein he averred as follows in paragraphs 1, 2, & 5 to 10-

1. I was recorded as the 1st defendant in suit No. A/58/99.
2. I work and reside with my family in Benin City.
3. My attention was drawn to a publication in the Pointer Newspaper of 16th May, 1999 wherein it was stated that I have been restrained by this court from gaining access to my land through the access road created by the Government. The said publication is attached herewith and marked as exhibit “No.1”.
4. Pursuant to the said publication, I made inquiries at the High Court Registry, Asaba and I found as follows:-

(a) That the writ of summons in suit No. A/58/199 was filed on the 28th of April, 1999.

(b) That the said writ was addressed to be served on me through my father Chief F. Ononye who resides at Asaba.

(c) That was (sic) no order for substituted service of the writ or any other court processes on me.

7. Prior to the institution of this suit, the plaintiff had written to me and knows that I leave (sic) and work in Benin City. A copy of one of the plaintiff’s letter is attached herewith and marked as exhibit “No.2”.
8. I was not served with any court processes in respect of the said suit.
9. I only became aware of the said suit by virtue of the said publication.
10. Consequent upon the injury, I suffered as a result of suit A/58/99, I filed suit A/93/99. A copy of the said suit No. A/93/99 with a statement of claim endorsed thereon is attached herewith as exhibit “No.3″.

On the 19th of July, 1999, the respondent as applicant filed a motion ex-parte praying the lower court for-

An Order of substituted service of all court processes in respect of this suit on the 1st defendant/respondent by pasting the processes at a conspicuous place at No. 40 Jarret Street, Asaba being his known place of residence within the jurisdiction of this court.”

Paragraphs 3 – 6 of the affidavit in support of the motion reads as follows:-

3. That on the 29th day of April, 1999, this Honourable court granted an interim injunction restraining the defendants/respondents, their agents and workers from creating and using an access road behind the Saint Joseph’s Catholic Church premises Asaba, and pulling down the pillars erected thereon by the Catholic Church.
4. That I was informed by Joe I. Nzemeke Esq., and I verily believe him that at all material time of filing this suit, the first defendant/respondent was at Asaba within the jurisdiction of this Hounourable court giving directives to his workers to construct the access road in dispute.

That I was informed by Joe I. Nzemeke Esq., and I verily believe him that all effort to get the 1st defendant served personally with all the recent court processes in respect of this suit has proved abortive.

5. That in the foregoing circumstances the court processes need to be pasted at a conspicuous place at No. 80 (sic) Jarret Street, Asaba where the 1st defendant/respondent and his agents can see the processes, the said address being his known residence as a native of Asaba within jurisdiction.
6. The above application was granted as prayed on the 23rd of July, 1999. However, on the 15th of August, 1999, the respondent’s counsel made an oral application, which was granted to amend the earlier order to reflect “No. 44 Jarret Street, Asaba”. The appellant’s application to set aside the writ of summons was heard on the 6th of October, 1999 and the 28th of October, 1999, and the learned trial Judge delivered his ruling on the 2nd of December, 1999, wherein he held thus:-

“I have considered carefully the arguments from both counsel. It suffices that the 1st defendant has been served with the writ (sic) and there is proof of service to that effect that he has been duly served whether at No. 40, 44, or 46 Jarret Street. The essence of service is to put either party on notice that a writ (sic) has been instituted and taken out against him. A document is not necessarily a nullity on the basis of irregularity as to the form or manner, it cannot only (sic) be treated as an irregularity and thus not become a nullity: See Order 2(1).The above writ is not a nullity. The application to set aside the writ of summons on the basis that it is a nullity is hereby refused and I dismiss same accordingly.

Dissatisfied with the above decision, the appellant filed his notice of appeal with 3 grounds of appeal on the 8th of December, 1999. It will be necessary to set out the grounds of appeal with its particulars, since the respondents raised a preliminary objection as to the competence of the appeal. They are as follows:-

1. The learned trial Judge erred in law and misconceived the substance of the application before him and therefore arrived at a wrong conclusion.

Particulars

(i) The learned trial Judge did not deal with the main issue before him, which is that the issue of the writ of summons in the suit without due compliance with the provisions of Order 5 of the applicable High Court (Civil Procedure) Rules rendered the writ incurably defective and ought to be set aside.

(ii) The writ of summons, being a concurrent one, was not so issued.

(iii) The place of abode of the applicant/respondent at all time material to the suit was deliberately omitted in order to overreach the applicant/appellant.

2. The learned trial Judge erred in law in holding that the writ of summons was lawfully executed by substituted service in spite of the unmitigated and unconcealed travesty which the plaintiff/respondent indulged in throughout the proceedings and which the court condoned.

Particulars

(i) No order of court was sought or obtained before the plaintiff purported to effect substituted service on the applicant/appellant’s father at Asaba by post and later by pasting processes at No. 40 Jarret Street, Cable Point, Asaba.

(ii) After the applicant/appellant had filed to set aside the writ of summons on 13th July. 1999.

the plaintiff/respondent applied post-service contrary to section 91(3) of the Evidence Act, therein giving yet another wrong address at which the writ should be posted – and his lordship made the order prayed for.

(iii) Upon discovering that the address sworn to, at which service was effected by posting was not the abode or address of the applicant/appellant or any of his kin, counsel for the plaintiff/respondent without due compliance with the provision of section 85 of the Evidence Act as to re-swearing a defective and erroneous affidavit amended the affidavit and substituted another address, viva voce.

The manner by which the learned trial Judge conducted the entire proceedings engendered a grave miscarriage of justice, in that there was a real likelihood of bias as highlighted in exhibit 3 attached to the motion to set aside and the further affidavit of the applicant/appellant.

The grounds for the respondents’ preliminary objection are that –

(a) The appeal is incompetent because no leave was obtained before the appeal was filed being an interlocutory appeal on grounds of facts or mixed law and facts.

Ground three of the appeal is incompetent for non-compliance with the provisions of Order 3 rules 2 & 4 of the Court of Appeal Rules.

It is the respondent’s contention that leave of court is required to bring this appeal. being an interlocutory appeal, especially when the grounds of appeal are all grounds of appeal on facts or at best mixed law and facts; and that the necessary leave having not been obtained, the appeal is incompetent and should therefore be struck out, citing section 242 (1) of the 1999 Constitution, Yesufu Amuda v. Alh. Abdulkadir Adelodun & Anor. (1994) 8 NWLR (Pt. 360) 23; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Aliyu v. Ibrahim (1997) 2 NWLR (Pt. 489) 571; Ike v. Ofokaja (1992) 9 NWLR (Pt.263) 42. The appellant did not file a reply brief, and at the hearing of the appeal, his counsel, Mr. Ken Mozia, informed the court that he had nothing to say on the objection.

Now, section 241(1) (a) & (b) of the 1999 Constitution provides as follows:-

(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the court of Appeal as of right in the following case –

(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;

(b) Where the grounds of appeal involves questions of law alone, decisions in any civil or criminal proceedings? (Italics mine)

Section 242(1) of the same Constitution provides as follows:

Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court 1 or the Court of Appeal.”

The sum and substance of the respondents’ objection is that by virtue of the above provisions of the 1999 Constitution, the appellant must obtain the leave of court before he can file an interlocutory appeal on grounds of facts alone or mixed law and facts from the decisions of the Asaba High Court.

It is not in dispute that the appellant did not obtain leave at either the Asaba High Court or this court before filing this appeal. What is in issue however is whether the grounds of appeal filed are grounds of law, in which case no leave is required to file the appeal, or whether they are grounds of fact or mixed law and fact, in which case the appellant required leave of court to file this appeal. As the Supreme Court pointed out in Ogbechie & Ors. v. Onochie & Ors. (1986) 2 NWLR (pt. 23) 484 at 491, it is always difficult to distinguish a ground of law from a ground of fact. A court is required to examine the grounds of appeal thoroughly to see whether the grounds reveal a misunderstanding by the lower court of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower court before the application of the law in which case it would amount to question of mixed law and fact. What this means, is that it is the essence of the ground; the reality of the complaint embedded in that name that determines what any particular ground involves. See Abidoye v. Alawode (200 1) 6 NWLR (Pt. 709) 463; NEPA v. Eze (2001) 3 NWLR (Pt.701) 606; Ezeobi v. Abang (2000) 9 NWLR (Pt. 672) 230; and Ojukwu v. Kaine (2000) 15 NWLR (pt. 691) 516.

In this case, there was no trial at all. The appellant as applicant in the lower court applied to set aside the writ of summons in the suit on the grounds that – the writ of summons was not served on him; there was no order of court that he should be served in Benin City outside the jurisdiction of the lower court or by substituted service; and the writ of summons did not contain his place of abode as required by Order 5(2) of the High Court Rules. It is clear from a careful reading of the particulars to grounds 1 & 2 that the essence of the appellant’s complaint is that the lower court had no jurisdiction to hear the case because the appellant was not served with the writ of summons. Jurisdiction is the power or authority which a court possess to adjudicate over a particular matter or dispute, see Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 242.

Service of process on parties so as to enable them appear to prosecute and defend the case respectively, and also ensure their due appearance and those of the irrespective counsel in court, are foundational conditions to be seen to have been fulfilled before a court can have competence and exercise jurisdiction over a case. Failure to serve a process where service of a process is required renders null and void any order made against the party who should have been served with the process – see Integrated Builders v. Domzaq Ventures (Nig.) Ltd. (2005) 2 NWLR (Pt.909) 97; Otobaimere v. Akporehe (2004) 14 NWLR (Pt.894) 591; & Ngige v. Achukwu (2005) 2 NWLR (Pt. 909) 123. In other words, no court has jurisdiction to entertain any suit in which processes are not served or properly served, so a ground of appeal, which complains that the appellant was not served with the necessary court process must be a ground of law, and cannot by any stretch of imagination be labeled a ground of fact or mixed law and facts. The respondents’ objection on this ground is therefore overruled.

The respondents’ objection to ground 3 of the appellant’s ground of appeal is that it is vague in that it contains no particulars of the error complained about, and is therefore incompetent. Further, that no arguments were proffered in respect of the said ground 3 and it should therefore be deemed abandoned, citing Att.-Gen. Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646 at 537. The respondents are right that a ground of appeal alleging an error in law or misdirection must contain particulars – see Order 3 rule 2(2) of the Court of Appeal Rules. However, it is not mandatory though it is customary to state the particulars in a separate paragraph of the main ground, as this court pointed out in Arinze v. Afribank (Nig.) Plc (2000) 7 NWLR (Pt. 665) 383 at 389; it is permissible to include the particulars in the main ground itself where this can be conveniently done. In this case, it will amount to an academic exercise to look into whether the particulars are included in ground 3 itself, because as the respondents rightly submitted, no arguments were advanced in respect of the said ground; it is therefore deemed abandoned and is hereby struck out.

On the main appeal itself, the appellant submitted in his brief of argument settled by Chris D. Okoh, Esq., that the issues which call for determination are –

(i) Whether having regard to all the circumstances of this case, the law and rules of practice and procedure, the learned trial Judge was right in law to assume jurisdiction in the matter and make the orders contained in his decisions?

(ii) Was the learned trial Judge right in law to have refused to set aside the writ of summons when the respondent (and the court), knowing well that the appellant resided in Benin City in Edo State outside the jurisdiction of the court, did not obtain leave before the issuance of the writ of summons?

(iii) Did the orders of the court made on 23rd July, 1999 and the 18th of August, 1999 save the incurable defects highlighted in the writ of summons?

In the respondent’s brief settled by Ogochukwu Onyekwuluje, Esq., it was submitted that the following issues arise for determination in this appeal:-

1. Whether the writ was defective and did not comply with the provisions of Order 5 rule 2 of the High Court (Civil Procedure) Rules of Bendel State applicable to Delta State?
2. Whether the 1st defendant/appellant was properly served with the writ of summons within jurisdiction at No. 44 Jarret St., Cable Point, Asaba?

I will adopt the respondents’ issues in dealing with this appeal.

In my view, they are more to the point and capture in a nutshell the essence of the complaints in the appellant’s grounds of appeal. This is more so, as the appellant argued all the issues together in his brief. Now, this appeal revolves around the issuance and service of a writ of summons. By Order 5 rule 1 of the High Court Rules, a writ of summons shall be issued by the Registrar – of the court on the application in writing by the plaintiff’s solicitor, and pursuant to rule 2 of the same Order, the writ of summons “shall contain the name and place of abode of the plaintiff and of the defendant so far as they can be ascertained”. “Place of abode” means “a person’s residence or domicile” – see Black’s Law Dictionary, 7th Ed. “Residence” signifies living in a particular locality, while “domicile” means living in that locality with intent to make it a fixed and permanent home – see Black’s Law Dictionary, 6th Ed.

In this case, the appellant’s address for service in the respondents’ writ of summons is “C/o Mr. Fideline O. Ononye”. The appellant averred in paragraph 6(b) of his supporting affidavit that the said Mr. Ononye is his father who is resident in Asaba; an averment that was not denied or challenged by the respondents and so must be deemed admitted by them – see Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 587. The respondents did not also deny or challenge the appellant’s assertion that he lives and works in Benin City, Edo State. In fact, they attached a letter, exhibit A, with the appellant’s Benin address on it to their affidavit in support of the ex-parte motion filed on the same day as the writ, 28th April, 1999; and replied the appellant with E the same address in exhibit “No.2” attached to the appellant’s affidavit in support of the application to set aside the writ. In addition, the 1st respondent himself averred as follows in paragraph 14 of his counter affidavit dated 6th August, 1999:-

“That apart from the 1st defendant/appellant Business Address in Benin the 1st defendant/applicant’s ordinary residence known to the plaintiff is 40 Jarret Street, Asaba within jurisdiction of the court. The subject matter of the suit being land is also situated at Asaba within jurisdiction.

It was submitted for the appellant that the respondents knew very well that he lived and worked at Benin City before they issued the writ; that they had the writ addressed for substituted service without first obtaining an order of court; that much later when information about happenings in court reached the appellant, he applied to set aside the writ of summons and other processes, and upon being served with the motion, the respondents applied for substituted service, which was granted by the court; and that the learned trial Judge seemed to have treated the issue with levity in his ruling, when he held as follows-

“It suffices that the 1st defendant has been served with the writ and there is proof of service to that effect that he has been duly served whether at No. 40, 44, or 46 Jarret Street. The essence of service is to put either party on notice that a writ has been instituted and taken out against him.”

The appellant also submitted that Order 5 rule 2 of the High Court Rules ordains that the place of abode of the defendant shall be endorsed on the writ; that Order 12 rule 2 stipulates that a process shall be served personally by delivery to the party to be served; and that these important prerequisites were not complied with and were glossed over as if rules of court are not intended to be obeyed and that the main issue is the endorsement of the writ to an address where the respondent knew the appellant could not be reached.

Commending the following authorities to this court – Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 541; Odu’a Investment Company v. Joseph Taiwo Talabi (1997) 10 NWLR (Pt.523) 1, (1997) 7 SCNJ 600; Okechukwu v. Okechukwu (1989) 3 NWLR (pt. 108) 234; & Atipioko Ekpan & Anor. v. Chief Agum Uyo & Anor., etc. (1986) 3 NWLR (pt. 26) 63; the appellant further submitted as follows, that –

(a) knowing the abode and workplace of the appellant before filing the writ of summons and then proceeding to endorse on the writ a wrong address within jurisdiction, renders the writ a nullity;

(b) the writ should not have been issued without leave of court first obtained under Order 5 rules 6, 14, & 15.

(c) the writ should have been endorsed with the mandatory requirements of sections 97 & 99 of the Sheriffs and Civil Processes Act, Cap. 407, Laws of the Federation, 1990;

(d) the writ should have been served personally;

(e) the least the learned trial Judge should have done was to strike out the writ in view of the numerous incurable irregularities in the writ brought to his notice and in view of the deliberate misrepresentation of facts known to the persons who deposed to the affidavits.

It was however argued for the respondents that the essence of the requirement in Order 5 rule 2 of the High Court Rules, is to enable the parties reach each other without much problem or inquiry; that the writ provided the name and addresses of the plaintiffs, and the appellant C/o Mr. Fideline Ononye, No. 40 Jarret Street, Cable Point, Asaba, therefore, the requirement of Order 5 rule 2 were fully satisfied. Furthermore, that the address for service on the appellant was descriptive enough, and the appellant did not suffer an injury in the term and style in which his name and address appeared on the writ.

The respondents further argued that the appellant’s contention that they know that he resides in Benin City is of no moment, because the appellant also resides in Asaba, his native home that is within the jurisdiction of the court, and a party may have several residence for several purposes; that the ordinary residence of the appellant known to the respondents is as stated in the writ of summons: and that the respondents are not obliged to serve him in Benin City or endorsed the writ for service in Benin City when he can also be reached in Asaba.

I might have been swayed by the respondents’ arguments if the address for service on the writ was simply “Mr. Nelson Ononye, No. 40 Jarret Street, Cable Point, Asaba”, but it is not. The address for service on the appellant is in care of his father, which means the respondents knew that it is the appellant’s father who resides in Asaba, not the appellant because if the said address was the appellant’s actual residence in Asaba, it should have been so stated in the writ, and there would have been no need to mention his father’s name. The issue is simply whether the writ in question was defective, and I will not hesitate to hold that the writ of summons issued in this case was extremely defective. However, the respondents submitted in the alternative, that the defect is a mere irregularity, citing Alhaji Bello & 13 Ors. v. Att. Gen. of Oyo State (1986) 5 NWLR (Pt.45) 828 at 835, & Order 2 rule 1 of the High Court Rules, and this brings us to the issue 2 – whether the appellant was properly served with the writ of summons within the jurisdiction of the Asaba High Court.

The appellant urged this court to allow the appeal, strike out the writ of summons and declare all the processes and the decisions based on them, null and void, because the learned trial Judge was wrong in law when he refused to set aside the writ of summons on the ground that whether service was effected at No. 40, 44, or 47 Jarret Street did not matter – without considering the argument in respect of jurisdiction and abode of the appellant, and the least he could have done was to strike out the writ in view of the defect therein.

It was however argued for the respondents that the appellant has not shown that the service on him has worked hardship on him; that there was conclusive evidence of substituted service of the writ on him, which is a legitimate means of service, if there is an order of court to that effect, and there was such an order; that leave of court is required to issue and serve a writ of summons on a defendant who is outside the jurisdiction of the court, but leave of court was not required to serve the appellant who was within jurisdiction of the court: and that having endorsed the writ for service within jurisdiction, sections 97 & 99 of the Sheriffs and Civil Processes Law does not apply to the writ in this matter. Furthermore, that it would have been different if the writ is endorsed for service in Benin City, distinguishing this case from that of Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664: & Ezomo v. Oyakhire (1985) 1 NWLR (pt. 2) 195, where the writs of summons were endorsed for service outside the jurisdiction of the court, and the provisions of the Sheriffs and Civil Processes Law applied: that to determine whether leave ought to be obtained or not, the court has to look at the address for service endorsed on the writ, as the provisions of Order 5 rule 15 and sections 97 & 99 of the Sheriffs and Civil Processes Law applies only when the address endorsed on the writ is outside the jurisdiction of the court.

Now, it is clear from the Rules of the High Court that after a party has commenced his action by writ, the next step is to ensure effective service of the processes on the other party. This ensures that the action has been commenced by due process of law, that the other party has notice of the action against him, and it obliges him to enter an appearance in court or file appropriate processes of his own. It also gives the court competence to proceed with the action as the action then comes before the court initiated by due process of law. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR 248; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6: Otobaimere v. Akporehe (supra); Ngige v. Achukwu (supra); & Integrated Builders v. Domzaq Ventures (Nig.) Ltd. (supra).

The best notification to parties in respect of any litigation is one communicated personally on the individuals concerned. Personal service is effected “by delivery 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 filed, without exhibiting the original thereof” – see Order 12 rules 2 of the High Court Rules.

Delivery of such process to such person’s secretary, spouse, child or servant, etc., is not a personal service. In such cases, there is non-compliance with due process of law when the procedural requirements, which are pre-conditions for the exercise of the court’s jurisdiction, have not been met. See Management Enterprises & Anor. v. Otusanya (1987) 2 NWLR (Pt.55) 179, (1987) NSCC (Pt.1) 577: where the Supreme Court, per Oputa, J.S.C. held as follows-

“Unless the court otherwise directed (and there is nothing on record to show that the Ijebu-Ode High Court did) service on the 2nd defendant should have been personal.

In this case, the 2nd defendant was served through the 1st defendant. This obviously does not amount to proper service on the 2nd defendant. The court handled a similar problem in Margaret-Nzom & Anor. v. S. O. Jinadu S.C. S.C. 113/1985 – But in that case, the plaintiff, Jinadu obtained an Order of court to effect substituted service by publication in the Daily Times Newspaper. In Nzoms’ case (supra), the court was quite prepared to hold that service in accordance to an order of court will pass as good or proper service”. (Italics his)

In this case, it was the address of the appellant’s father that was endorsed on the writ of summons. The appellant is not his father and his father is not the appellant, and on the authority of Management Enterprises & Anor. v. Otusanya (supra), even if his father was also a defendant in the action, serving the appellant through him will not amount to proper service. The respondents’ argument that the address for service was descriptive enough, and the appellant did not suffer any injury therefrom is a manifest misinterpretation of the rules. What the law says is that failure to serve process where it is required is one that goes to the root of the proper procedure in litigation. Every party to litigation must be served with the writ of summons, it is the service of the process that clothes the court with jurisdiction to hear and entertain the case at hand.

It is truly a pre-condition for the court’s exercise of its jurisdiction, and the effect of failure to comply with this pre-condition is that any proceedings embarked on by the court would be declared a nullity – Skenconsult (Nig.) Ltd. v. Ukey (supra). This accords with the principle of natural justice which postulates that both sides to a case should not only be heard but they should also be seen to have been heard – see Integrated Builders v. Domzaq Ventures (Nig.) Ltd. (supra). See also Otobaimere v. Akporehe (supra), where my learned brother, Ngwuta, J.C.A., pointed out as follows –

“The purpose of serving the originating process in a suit on a defendant is to bring to his notice the pendency as well as the nature of the claim against him so that the defendant can take steps to defend the claim or challenge the suit if he so desires. It is not enough that the defendant knows or is informed that a suit has been filed against him. He has to have the writ on which the claim against him is endorsed before he can take any meaningful action in the matter.” (Italics mine)

The respondents also submitted that there was conclusive evidence of substituted service on the appellant, but this assertion is not borne out by the record of the court. Substituted service is always ordered where it “appears to the court (either after or without an attempt at personal service) that for any reason, personal service cannot be conveniently effected” – see Order 12 rule 5 of the High Court Rules.

Where it is necessary to adopt the procedure, the plaintiff makes an application to the court by ex-parte motion. The affidavit in support should state the grounds on which the application is based as well as the form of substituted service, which is proposed. The abortive efforts made for personal service should also be deposed to. If the reason for the application is evasion of service by the defendant, a mere statement to that effect is not enough. The grounds for the statement must be given. So also are the reasons for the form of substituted service proposed.

Other material averments are the date of the issue of the writ, how long it has remained unserved; whether the defendant is normally within the jurisdiction and was within it at the date of issue. If he is outside the jurisdiction, then when he left it and why, if known.

For an order of substituted service to be granted, the court must be satisfied that personal service is practically impossible and that the proposed method of substituted service will bring the process to the notice of the defendant. See Civil Procedure in Nigeria, 2nd Ed. by Nwadialor. In this case, the plaintiff did not apply to the trial coourt for an order of substituted service. The trial court did not make any order for substituted service when the writ of summons was issued on the 28th of April, 1999. It was not until the 23rd July, 1999, that the trial court granted the respondent’s application for substituted service, nearly three months after the writ of summons was issued and the attempt made to serve the appellant through his father’s address endorsed on the writ. That is bad enough, but what is worse is that the respondent’s counsel made an oral application to amend the earlier order to reflect another address, which was so readily granted by the trial court. I cannot but agree with the appellant that the learned trial Judge appeared to have treated the very serious issue of service of process with levity in his ruling, which unfortunately exposed his ignorance, or what may be looked at as an unconcealed attempt to favour the respondents.

In my view, it will be difficult to attribute the carelessness of the learned trial Judge to mere ignorance. There was more to it than meets the eye. What is truly alarming, and which agitates my mind, is that the learned trial Judge not only entertained the motion on notice “to commit the defendants to prison” but also proceeded to grant the said application on the same day the motion was filed, behind the appellant’s back. A motion is an application to a court directing something to be done in the applicant’s favour. Ordinarily, a motion is to be made only after a notice has been given to the parties affected. It is true that in certain cases, it may be made ex-parte, but in this case, the said motion filed on the 4th of May, 1999, was a motion on notice, and “notice” simply means knowledge or cognizance. In other words, to give notice is to bring matters to a person’s knowledge or attention – see Osborn’s Concise Law Dictionary, 6th Ed. The learned trial Judge could not have been that ignorant as not to know that.

Be that as it may, I also agree with the appellant that since the appellant was resident in Benin City, Edo State, outside the jurisdiction of the Delta State High Court, the writ should have been endorsed with the mandatory requirements of sections 97 & 99 of the Sheriff and Civil Processes Act. In addition to that, under Order 5 rule 6 of the High Court Rules, no writ of summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of court or a Judge in Chambers. In this case, there was no application made for service out of jurisdiction, and none was granted, despite the fact that it was evident that the appellant was resident in Benin City, Edo State. The respondent’s argument that the appellant was served with the defective Writ because he is a native of Asaba, and that he usually came round to inspect the work being done on the Access Road in dispute, which is situated in Asaba, clearly lacks merit. Laws and Rules are not made to operate in the breach but are to be obeyed by citizens in order to satisfy the sprit and intendment for which they are promulgated, as this court observed in Integrated Builders v. Domzaq Ventures (Nig.) Ltd. (supra).

In the final analysis, I find it very easy to allow the appeal as urged by the appellant. Obviously, the learned trial Judge did not consider the issue of service worthy of the serious consideration it deserved, and definitely erred when he refused to set aside the defective writ of summons when called upon to do so. The appeal is allowed. The writ of summons issued on the 28th of April, 1999 is a nullity and is hereby struck out. All the processes and decisions of the lower court based on the said writ are also declared null and void. The appellant is awarded costs assessed at N2,000.00.

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Other Citations: (2005)LCN/1713(CA)