Rivers State Government Of Nigeria & Anor. V. Specialist Konsult (Swedish Group) (2005)
LAWGLOBAL HUB Lead Judgment Report
EJIWUNMI, J.S.C
Before the High Court of Lagos State, the respondent as plaintiff commenced this action with a writ of summons dated 6th June, 2000 under the undefended list procedure against the appellants claiming against the 1st appellant the sum of USD3,138,122.81 being outstanding fees due to the respondent on work already executed on behalf of the Rivers State Government of Nigeria since 27th April, 1995. Interest was also claimed on the said sum at the rate of 21% per annum from 27th April, 1995 until the total liquidation of the entire debt. The writ of summons referred to above was accompanied by an affidavit headed “affidavit in support for undefended list” and dated 6th June, 2000. The appellants’ address for service as endorsed on the face of the writ of summons was “c/o Rivers State Government Liaison Office, 26 Bishop Oluwole Street, Victoria Island, Lagos.”
On the 7th of June, 2000, the respondent filed an application seeking directions that “the suit formulated in the writ of summons together with the affidavit in support with the relevant annexes be set down for hearing on the undefended list. On the 11th of October, 2000 the court, Hunponu- Wusu, J., granted leave to the respondent and directed that the suit as formulated in the writ of summons together with the affidavit in support with the relevant annexes be set down for hearing as undefended list. The writ of summons was thereafter, allegedly served on one Mrs. Marcus, a clerk at the said Bishop Oluwole Street, Victoria Island address on or about 26th day of October, 2000 and a return date for the hearing was then fixed for the 13th of November, 2000. On the 13th of November, 2000, the court, presided over by Hunponu-Wusu, J., entered judgment in favour of the respondent against the appellants for the sum of US$3,138,122.81 claimed together with 21% interest as claimed until judgment, and thereafter at 6%.
Now, the case of the appellants is that they did not participate in these proceedings as they did not have actual notice of the case. The first actual notice they had of it was when they were served with a garnishee order nisi over their bank accounts. The appellants consequently appealed against the said judgment to the Court of Appeal and also sought and obtained a stay of action of the judgment.
In view of the argument that formed the bedrock of the appeal to this court, I think it is useful to set down the issues upon which the court below dismissed the appeal. The appellant in that court raised the following issues:
“2.1. Whether the High Court of Lagos State can exercise jurisdiction in the suit when neither party to the suit resides and/or carries on business in Lagos and the transaction giving rise to the suit did not take place in Lagos.
2.2 Whether the sum of USD3,138,122.81 claimed by the plaintiff/respondent and awarded by the court in the suit was a liquidated sum outstanding from the defendant/appellant in favour of the plaintiff/respondent upon which the court can grant leave directing that the suit be set down for hearing in the undefended list.
2.3 Whether the contract, if any, between the plaintiff/respondent and the 1st defendant/appellant provided for payment in US Dollars and if so, whether the court was right in awarding judgment in dollars.
2.4 Whether the award of 21% interest in favour of the plaintiff/respondent against the defendants/appellants is proper in law.”
The court below in resolving that the appellants were properly sued in Lagos, reasoned thus:-
“Now, the appellant were served with the writ of summons. They did not take advantage of the provisions of the above rule of Order 60 by indicating that they wished to defend the suit. Defending the suit implies putting before the lower court all the defences either based on law or facts available to the appellants.
On the writ of summons, the address of the appellants was shown as “c/o Rivers State Government Liaison Office, Bishop Oluwole Street, Victoria Island, Lagos.”
There was nothing on the processes before the lower court on the writ of summons and the affidavit to indicate that neither party to the suit resided in Lagos. The appellants in their brief relied on Order 2 rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 1994 to bolster up its argument that as the claim of the respondent was in contract, the claim would have been brought in the “judicial division in which such a contract ought to have been performed or in which the defendant resides. However, a close scrutiny of the affidavit in support of the application and the writ of summons easily reveal that the claim was for a debt which parties themselves had agreed upon but which was not settled by the appellants. The contract had long been performed. The amount due to the respondent had been ascertained at a meeting between parties and agreed at N4,500,000.00 payable in six equal monthly installments beginning from May, 1981. Clearly, this was no longer a claim in contract. It had become a debt. This was therefore a claim that fell within the ambit of Order 2 rule 4 of the High Court Rules which enabled the suit to be brought in a place where the ‘defendant resides or carries on business’. The writ of summons was served on the appellants at its Liaison Office in Victoria Island, Lagos, which was a place where the defendants carried on business. Accordingly, it is my view that the appellants were properly sued in Lagos.”
Against this judgment and orders of the court below, the appellants have appealed to this court. Pursuant to the grounds of appeal filed, the following issues were raised in the appellants’ amended brief filed by their counsel, H. Odein Ajumogobia, SAN, and Attorney-General, Rivers State.
The issues he adopted and placed reliance upon are as follows:
“3.1 Whether the learned Justices of the Court of Appeal rightly held that the defendants reside and carry on business in Lagos, Lagos State.
3.2. Whether the learned Justices of the Court of Appeal rightly held that the defendants were properly served in Lagos, Lagos State.
3.3 Whether the learned Justices of the Court of Appeal rightly held that the High Court of Lagos State had jurisdiction to hear and determine the suit and that the defendants were properly sued in Lagos, Lagos State.
3.4. Whether the learned Justices of the Court of Appeal were right in their decision that the High Court of Lagos State had jurisdiction to entertain the respondent’s suit having regard to the subject-matter of the respondent’s action being a civil cause or matter connected with or pertaining to foreign exchange and the effect of S. 251(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999.
3.5 Whether the service of the writ of summons and other court processes on appellants “c/o Rivers State Government Liaison Office, Bishop Oluwole Street Victoria Island, Lagos” was good and proper service having regard to the mandatory provisions of Order 7 rule 13 of the High Court of Lagos (Civil Procedure) Rules, 1994 with regard to service of processes on an agent.
3.6 Whether service of the writ of summons, “c/o Rivers State Government Liaison Office, Bishop Oluwole Street, Victoria Island, Lagos” was valid and proper service on the appellant without an order of substituted service.
3.7 Whether the writ of summons was returnable within 8 days and not 30 days as required by S.99 of the Sheriffs and Civil Process Act in respect of a writ for service out of jurisdiction having regard to the residence and/or place of business of the appellants in Port Harcourt, Rivers State by virtue of S. 3(3) of the Constitution of the Federal Republic of Nigeria.
3.8 Whether the plaintiff/respondent was entitled to judgment in the sum of $3,138,122.81 having regard to the lower court’s express finding that the amount agreed between the respondent and the appellant to be paid to the respondent, as constituting the debt owed to the respondent was N4.5 Million.
3.9. Whether the respondent was entitled to interest at the rate of 21% per annum from 27th April, 1995 until judgment as affirmed by the Court of Appeal.”
Mercifully, the respondent in the brief filed on its behalf by its counsel, Gbolahan Olufon, did not raise any issue of his own. Rather, he adopted the issues set down by the appellants in their brief. But he decided to raise a preliminary objection against the grounds of appeal filed by the appellant. The reason given for the objection so raised was because he thought that as the grounds of appeal were of mixed law and facts, the appellant needed to have obtained the leave of court and which they failed to obtain. At the hearing of the appeal, the preliminary objection was withdrawn when it was brought to the attention of learned counsel that the appellants had duly obtained the requisite leave. The preliminary objection was accordingly struck out.
However, it is pertinent to remark that though the appellants duly obtained leave to file the several grounds of appeal in pursuit of this appeal, I must say that the several issues raised thereon are simply unduly repetitive of one another. In my humble view, the two questions that call for determination in this appeal are (1) whether the court below was right to have held that the appellants were properly served, and secondly, that the trial court had the jurisdiction to determine the case.
In view of what I have said above, I intend to consider together issues 1-4. The first point made by counsel is that it must be noted that Port Harcourt is the capital city of Rivers State and that is where the Chief Law Officer of the State and Commissioner for Justice of the Government has his offices and it is also the seat of Government and submits that though the Rivers State Government has a property at Bishop Oluwole Street, service of processes in respect of this matter on a person called Mrs. Marcus in an office in that building cannot by any stretch of imagination be proper service on the Government and the Attorney-General. Next, he argued that in accordance with the provisions of Order 7 rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 1994, the writ of summons was itself not properly endorsed as the writ did not provide an address for personal service on either of the defendants. In support of his submissions, he referred to these cases: Skenconsult (Nigeria) Ltd. v. Ukey (1981) 1 SC 6 at 26; ACB Plc. v. Losada (Nig.) Ltd. (1995) 7 NWLR (Pt.405) 26 at 441; N.B.N. Ltd. v. Guthrie (Nig.) Ltd. (1993) 3 NWLR (Pt.284) 643 at 659 and also for the principle that non-service of the writ of summons is a fundamental defect in the proceedings. Any judgment obtained in such a situation has always been declared a nullity. Reference was also made to the provisions of section 99 of the Sheriffs and Civil Process Act, (Cap.189), Law of the Federation of Nigeria, 1990, its provisions that any writ issued from Lagos for service outside its jurisdiction must be complied with for effective service on the defendant. The return date in such a case should not be less than 30 days. It is also the contention of learned counsel for the appellant that as the subject-matter of the suit is one sounding in contract, the High Court of Lagos State has no jurisdiction to hear the suit, having regard to Order 2 rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 1994. And if, as held by the court below that the suit was one sounding in debt, it is the submission of learned counsel that the Lagos State High Court still lacks jurisdiction having regard to the provisions of Order 2 rule 4 of the Lagos State High Court (Civil Procedure) Rules, 1994.
Learned counsel for the appellants also submitted that having regard to the fact that the subject-matter of the action being a civil cause or matter connected with or pertaining to foreign exchange, the Lagos State High Court lacks jurisdiction to deal with the matter, having regard to the provisions of section 251(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999. Generally, the argument of the respondent to this appeal on the other hand, is that this appeal be dismissed. This is because it is the contention of its learned counsel, G.K. Olufon, Esq., and as argued in the brief of the respondent, that the court below was right to have held that the appellants were duly served with the writ of summons and that the trial court had the necessary jurisdiction to hear and determine the claim before it.
It is my respectful view that the first question that must be determined in this appeal is, whether the appellants were properly served. In order to determine this question and as this matter proceeded under the undefended list procedure, it is necessary to refer to Order 60 of the High Court Rules of Lagos State, 1994, which lays down the procedure for cases entered in the undefended list. It reads: –
“A plaintiff who is suing for recovery of a debt, a liquidated money demand, or any other claim in the case of Lagos State, may ask for summary judgment. The procedure for doing this is as follows:-
‘His application for the issue of a writ of summons in respect of any of these claims should be supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the belief of the deponent there is no defence to the claim. The court, if satisfied that there are good grounds for believing that there is really no defence to the claim enters the suit for hearing in a list which is called the “undefended list” and then marks the writ of summons accordingly and enters on it a suitable date for hearing the suit. The affidavit should not merely state the deponent’s belief but also the facts on which such beliefs is based so as to satisfy the court that “there are good grounds for” the belief that there is no defence to the action. The plaintiff must deliver to the registrar upon the issue of the writ of summons as many copies of this affidavit as there are defendants to be served. To each copy of the writ a copy of the affidavit is annexed. The defendant or, where there are two or more defendants, each of them is therefore served a copy of the writ together with a copy of the affidavit attached to it. On the service of these documents on him, the defendant has two options. He may either concede the claim if he has no defence as maintained by the plaintiff or he may wish to defend the action.” (Italics is mine)
It is my humble view following a careful perusal of this order, that it is imperative that a plaintiff who wishes to proceed against a defendant for a claim under the undefended list must provide at least affidavit evidence that he served each of the defendants with the writ of summons and the affidavit filed with the Court Registry and other documents he wished to rely upon to obtain judgment. It was alleged that a certain Mrs. Marcus of the Liaison Office of the appellant was served with the writ of summons and the supporting documents. However, I have looked through the record and I cannot find any affidavit filed by the respondents that each of the appellants were duly served with the documents as stipulated under Order 60 (supra). In ordinary cases, the courts have always insisted on the evidence of the service of courts’ processes before the hearing of any matter or cause. It is my view that the procedure by which a judgment would be obtained by a plaintiff under the undefended list procedure must place no less a burden on the plaintiff. It is clear from the latter provisions of Order 60 underlined above that it is after the defendants (appellants) have been properly served that they would be required to exercise the options open to them to defend or not to defend the action.
The question that agitates my mind is not whether the appellants failed to defend the action upon being served as held by the lower court, but whether there was satisfactory evidence of such service on each of the appellants as required by Order 60. It is my humble view that my reading through the proceedings of the trial court has not revealed to me that though it was claimed that processes were served on one Mrs. Marcus at the Rivers State Liaison Office at 26 Bishop Oluwole Street, Victoria Island, Lagos, there is no evidence, such as an affidavit in this regard to prove that each of the appellants were served in the records.
Further, though it was not satisfactorily established that service was effected by an affidavit as observed, it is in any event now settled that where a service is effected in the Liaison Office, it is presumed that that service was properly effected. It must be noted that in several of the cases that had been brought to this court, parties were apparently served through the Liaison Offices of their various States and they duly responded to such service without taking any exception to the fact that they were served through their State Liaison Offices.
See Attorney-General of Ondo State v. Attorney-General of the Federation & 35 Ors. (2002) 9 NWLR (Pt. 772) 222, (2002) 6 SC (Pt. 1) 1; Alhaji Mohammed Dikko Yusufu & Anor. v. Chief Olusegun Aremu Okikiola Obasanjo & 56 Ors. (2003) 16 NWLR (Pt. 847) 554, (2003) 9-10 SC 53 and Attorney General of the Federation v. Attorney-General of Abia State & 35 Ors. (No.2) (2002) 6 NWLR (Pt. 764) 542, (2002) 4 SC (Pt. 1) 1. In the instant case, there is uncontradicted evidence that the appellants were served at No. 26 Bishop Oluwole Street, the Liaison Office of the Rivers State Government at the time. The only reasonable inference that can be raised is that the appellants were duly served at the said Liaison Office, No. 26 Bishop Oluwole Street, Victoria Island, with the court processes as claimed by the respondent. I must therefore, resolve this issue against the appellants.
Now, the other question that will now be considered is, whether the court below was right to have held that High Court of Lagos State was properly seised of the case. The particular point that moved the court below to reach that conclusion is the view held that the subject-matter of the suit sounded in “debt” and not contract as argued by the appellants before the court below. As this argument has again been raised in this appeal, it must be considered again in the light of the reasoning of the court below. In this con, Oguntade, JCA (as he then was) at p.130 of the printed record said thus:
“However, a close scrutiny of the affidavit in support of the application and the writ of summons easily reveals that the claim was for a debt which parties themselves had agreed upon but which was not settled by the appellants. The contract had long been performed. The amount due to the respondent had been ascertained at a meeting between parties and agreed at N4,500,000.00 payable in six equal monthly installments beginning from May 1981. Clearly, this was no longer a claim in contract. It had become a debt. This was therefore, a claim that fell within the ambit of Order 2 rule 4 of the High Court Rules which enabled the suit to be brought in a place where the “defendant resides or carries on business.” The writ of summons was served on the appellants at its Liaison Office in Victoria Island, Lagos, which was a place where the defendants carried on business. Accordingly, it is my view that the appellants were properly sued in Lagos.”
The above excerpt from the judgment of the court below compels me to consider the following aspects of the reasoning of that court. The first point that I wish to make is, whether the court below was right to have held that the parties had agreed that the debt sum was settled at N4,500,000.00. Reference was made to the affidavit filed in support of the writ of summons, see pages 131 & 132. And I will refer particularly to paragraphs 5, 6 & 10, thereof.
“5. In April, 1981 a special committee of the 1st defendant and the plaintiff agreed that the total value of works already executed on the projects by plaintiff was N4.5 Million Naira and that 60% of that amount were dominated in foreign currency. See exhibit ‘A’ minutes of meeting dated April 5, 1981.
- By its exchange control approval letter of 19th June, 1991 the Federal Ministry of Finance approved the transfer of 60% of the above mentioned contract sum of N4.5 Million at the pre-SFEM rate by the Rivers State Government to plaintiff – See exhibit ‘C’.
- The 1st defendant subsequently in 1995 paid the sum of N3.5 Million as a deposit towards the remittance of the balance of the 60% foreign content of the contract into an escrow account with the Swedish Embassy on behalf of plaintiff. The Rivers State Commissioner for Finance then wrote to the Federal Ministry of Finance to approve the outstanding amount of USD3,138,122.81 at the pre-SFEM rate. See exhibit ‘E’ letter from defendants’ Commissioner for Finance dated 27th April, 1995.”
A careful reading of these paragraphs seems to show that a sum of N4, 500,000.00 was agreed as the debt. But clearly the respondent, has by its writ of summons gone ahead to claim the sum of USD3,138,122.81, and which the appellants are now disputing. The court below took the view that the appellants should have raised that as a defence to the action when they were served with the writ of summons. The position taken by the court below is no doubt understandable having held that they were properly served with the writ of summons. But having regard to what I have said concerning the service of this writ of summons, I do not think that the court below was right to have held that the actions sounded in debt. It is enough to say that having recognised that there is a dispute as to the sum claimed, the court below should not have held that a contract no longer subsists between the parties. It seems to me that as the dispute as to terms of settlement has not been resolved, it cannot be said that the action can be described as a recovery of a debt due simpliciter.
The next question is, whether it can rightly be said that the appellants were doing their business in Lagos merely because they had a Liaison Office at 26 Bishop Oluwole Street, Victoria Island, Lagos where they were purportedly served. I think not. In my respectful view, it is quite untenable for a court to hold that a State Government is operating from a Liaison Office. Nor can it be similarly considered tenable and within good reason to hold also that the Attorney-General of a State is operating and had its offices within the confines of a Liaison Office. In my respectful view, it is preposterous to hold that a State Government and principal officers of a state such as the Attorney-General are carrying out the businesses of their offices in a Liaison Office. In any event, the determination of where the appellants have as their business place ought to be determined by virtue of the provisions of S.3 (3) of the Constitution of Nigeria, 1999 which states inter alia,that the headquarters of each state shall be known as the Capital City of that State: and which in the case of Rivers State is Port Harcourt.
Although the respondent was silent in the affidavit filed in support of the writ of summons about where the transactions concerning the alleged agreement on the amount owed took place, it is however, my view from a careful reading of the affidavit and in the other supporting documents that all the transactions that resulted in this action took place in Port Harcourt. With what I have said above, I am afraid it is not possible for me to subscribe to the view held by the court below that the appellants were carrying on their business in Lagos.
This takes me to the provisions of Order 2 rule 3 of the High Court of Lagos (Civil Procedure) Rules, 1994 which reads: –
“All suits for the specific performance or upon breach of any contract may be commenced and determined in the judicial division in which such a contract ought to have been performed or in which the defendant resides.”
By the above provisions of Order 2 rule 3, it is manifest that this action having regard to my conclusion, that the appellants reside and have their business in Port Harcourt, it is my view that had the Court below adverted to the above provisions and the facts as analyzed above, it would not have held that the action was properly commenced and heard in Lagos. It follows therefore, that the decision of the court below that the appellants reside and do their business in Lagos is hereby overturned.
From what I have said above, this appeal ought to succeed. It is unfortunate though, that this matter ought to have been properly concluded before now had the respondent taken proper steps as provided by the Rules to prosecute the claim. I think I ought to add that it is not always profitable for a seeker after justice to do so by shutting out the other party unfairly in the determination of the matters in dispute.
In the result and for all the reasons given above, this appeal is allowed by me. The judgment and orders of the court below are set aside and I award costs to the appellants in the sum of N10,000.00 only.
SC.368/2001
