Robinson Anyoha & Ors V. Lawrence Chukwu (2007)
LawGlobal-Hub Lead Judgment Report
RHODES- VIVOUR, J.C.A.
On 15/11/2000, Ukachukwu, J., sitting in the Orlu High Court, in Imo State entered judgment in favour of the plaintiff/respondent in suit No. HOR/16/98.
The concluding part of the judgment reads:
“My view is that the said document exhibit ‘A’ has the effect of defaming the plaintiff and thereby lowering his image and estimation before right thinking members of the society …
I therefore hold that the plaintiff has proved the case against the defendants. I award N500,000 damages to the plaintiff against the defendants jointly and severally.
There will also be cost to plaintiff assessed at N3,000.00.
Dissatisfied with the judgment against them, the defendants/appellants quickly filed a notice of appeal on 27/11/2000, that is to say twelve days after judgment was delivered.
In accordance with Order 6 rules 2, 4(1) of the Court of Appeal Rules, the defendants, now the appellants filed their brief on 17/9/01. The respondent’s brief filed on 23/4/02 was deemed properly filed and served on 25/4/02.
At the hearing of the appeal on 27/12/07, learned counsel for the appellants, Mr. K.C. Nwufo adopted his brief and urged us to allow the appeal. Learned counsel for the respondent, Mr. S.N. Chukwuma adopted his brief and urged us to dismiss the appeal. The appellants formulated three issues for determination.
- Whether there is a conclusive proof before the court that the defendants/appellants were served the writ of summons and statement of claim.
- Whether the defendants/appellants were denied their right to fair hearing when the learned trial Judge failed to issue and ensure the service of hearing notice on them.
- Whether the learned trial Judge was right in relying on unpleaded facts/evidence in arriving at his judgment against the appellants.
The respondents also formulated three issues for determination.
- Whether ground one in the amended notice of appeal is competent being one challenging on interlocutory decision of the High Court on the issue of service of the writ of summons in suit No. HOR/16/98.
- Whether it was necessary in the circumstances of this suit to order the service of hearing notices on the defendants/ appellants.
- Whether the learned trial Judge relied on evidence of unpleaded facts in his judgment.
I have considered the issues above, and I am satisfied with the issues formulated by the appellants. I adopt them for determination of this appeal. I must observe that issue NO.1 therein is the most important, in that if it succeeds the whole proceedings and the judgment from the court below will be declared a nullity and it would be so obvious that it would be unnecessary to consider any of the other issues.
Learned counsel for the appellants observed that there are conflicts in the affidavit of service and oral evidence of PW1 and 2 on the issue of service of originating processes on the appellants.
He submitted that in such a situation the learned trial Judge should discountenance all the evidence on service that was before him.
Reference was made to: Ozara Ekuma & Anor. v. Silver Eagle Shipping Agencies (PH) Ltd. (1987) 4 NWLR (pt. 65) p. 472.
In response, learned counsel for the respondent observed that the learned trial Judge delivered an interlocutory ruling on 6/12/99 on service of originating processes on the appellants, finding that the service was properly done.
He argued that the ruling being interlocutory, the appellants must comply with section 241( 1)(b) of the Constitution, and sections 25(2)(a) and 25(4) of the Court of Appeal Act, 1976.
He submitted that since the appellants did not obtain leave before filing ground 1 in their notice of appeal from which this issue is distilled and the appeal was not filed within time and extension of time was never asked for the ground and this issue are incompetent.
Reference was made to Total International Ltd. v. Prince A.O. Awogboro (1994) 4 NWLR (Pt. 337) 147; (1994) 4 SCNJ (Pt. 1) p. 138; Tunji Bowaje v. Moses Adediwura (1976) 6 SC p. 143; A. Akeredolu & Ors. v. L. Akinremi (No.2) (1986) 4 SC p.325.; (1986) 2 NWLR (Pt. 25) 710.
On 23/2/98, the 1st,4th,7th, 8th, 9th, 10th and 11th defendants/appellants entered conditional appearance, while the 2nd, 3rd, 5th and 6th defendants/appellants did not enter conditional/unconditional appearance. The record of appeal shows that these set of defendants/appellants ignored the proceedings in the court below.
The entry of conditional appearance is an appearance under protest and usually means an appearance to object to the court’s jurisdiction.
On 31/3/98, the appellants quite rightly filed a motion on notice for an order striking out or dismissing the suit for lack of jurisdiction in that they were not served with the writ of summons and statement of claim.
The learned trial Judge heard oral testimony from two witnesses called by the respondent to prove that the appellants were duly served originating process in the suit. At the end of respondent’s witnesses testimony on 15/11/99, the learned trial Judge adjourned to 6/12/99 to enable learned counsel for the appellants produce their witnesses in court.
On 6/12/99, there was no representation for the appellants. The learned trial Judge reviewed the evidence before him and said:-
” … My impression is that the defendants have nothing to urge in denial of service. I find that they were properly served as per affidavit of service earlier filed …”
The well laid down position of the law is that the jurisdiction of the court can only be ousted in the following instances, or put in another way the court is said to be competent where the normal
procedure has been followed.
A court is not competent:
- Where the court is not properly Constituted as regards the numbers and qualifications of its members and a member is disqualified for one reason or another.
- Where the subject matter of the case is not within the jurisdiction of the court.
- When the case does not come to the court through the due process of law and conditions precedent to the exercise of the said jurisdiction have not been fulfilled.
See: Madukolu & Ors. v. Nkemdilim (1962) 1 All NLR p. 487; (1962) 2 SCNLR 341; Sea Trucks (Nig.) Ltd. v. Anigboro (2001) 2 NWLR (Pt. 696) 159; (2001) 1 SC (Pt. 1) p. 56.
The issue under consideration is on whether the originating process in suit No. HOR/16/98 was served on the appellants. This issue falls within 3 above.
Order 12 rule 1 of the High Court of Imo State (Civil Procedure) Rules, 1988 and similar rules in all jurisdiction makes it mandatory that there must be personal service of the writ of summons on the defendant in all suits commenced by writ of summons. The object of service is to give notice to the defendant so that he is not taken by surprise. That he can prepare a defence, consequently, failure to give notice of proceedings to the adverse party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is because the court will have no jurisdiction to entertain it. See: Obimonure v. Erinosho & Anor. (1966) 1 ANLR p. 250; (1966) 2 SCNLR 228; Scott-Emuakpor v. Ukavbe (1975) 12 SC p.41.
Before I proceed to examine processes filed and evidence led to prove that the appellants were served with the writ of summons, it is important I highlight the position of the law on some vital
documents/processes that would be examined in the course of finding out if there was indeed service of the originating process.
The entry of appearance is the best evidence of service and once a defendant enters unconditional appearance there is irrebutable presumption of regularity in service. See – A. Okesuji v. F.A. Lawal (1991) 1 NWLR (pt. 170) p. 661.
That is to say the entry of appearance is the best evidence of service.
An affidavit of service is necessary when the defendant does not acknowledge service. Conversely, when the defendant has acknowledged service, the court can dispense with affidavit of service.
An affidavit of service is an affidavit, usually sworn to by the Bailiff indicating how and where he served the defendant. It is to convince the court that the defendants, on whom the processes are to be served, were duly served. An affidavit of service becomes a rebuttable presumption of service if the defendant says that he was not served. In such a situation such as in this case, an affidavit or endorsement as to service of originating process is not conclusive proof of service. The burden of proving service lies on the person (usually the plaintiff) asserting that there was service and this is done by inviting the parties to call oral evidence and the vital witnesses to call are:
For the plaintiff, the deponent to the affidavit of service, and any other witness to state that service took place as deposed to in the affidavit of service.
For the defendants, the defendant and his witnesses to state that there was no service on the defendant.
Now, to the evidence before the learned trial Judge.
Justus Egbuhuzor, Chief Bailiff of the High court Orlu, Imo State deposed to affidavit of service on 17/2/98, see page 34 of the record of appeal. He deposed as follows:
” … on 17/2/98 at 10 a.m. I served upon the defendants a writ of summons by delivering the same personally to the defendants at Ndiogbuonyeoma village Arondizuogu. Before the day I served the summons I did not know the defendants personally; but after he was pointed out to me by the plaintiff. I asked him if he were defendants’ (sic) and he said that he was.”
Livinus Maduwuba senior bailiff of Chief Magistrates Court, Uzualla deposed to affidavit of service on 13/3/98 see page 35 of the record of appeal. He deposed as follows:
” … on 13/3/98 at 11 a.m. I served upon Robinson Anyoha and 10 others a writ of 11 copies statement of claim … by delivering the same personally to Robinson Anyoha and 10 others at Ndiogbuonyeoma village Arondizuogu. Before the day I served the statement of claim. I did not know Robinson Anyoha and 10 others personally, but after there were (sic) pointed out to me by the plaintiff. I asked if they were Robinson Anyoha and 10 others and they said they were.”
An affidavit of service is a sworn written statement by the bailiff indicating who, where, how, and when he served the originating processes. Its purpose is to place the bailiff (or the person who served) evidence before the court in a convenient form. An affidavit of service must be sworn on behalf of each defendant served; and should be drawn up by counsel, it being a very important document.
My lords both affidavits fall far short of what is required in an affidavit of service.
In this case, there should be an affidavit of service for each of the eleven defendants stating the names of each defendant that was served.
The deponent must state how he knew each of the defendants.
Saying the defendants were pointed out to him by the plaintiff is not good enough. He must name the defendant/s that were pointed out to him by the plaintiff.
It is clear that both affidavits were not drawn up by counsel. Affidavits of service are very important documents that should at all times be drawn up by counsel.
Finally, in both affidavits, the deponent says that a true copy of the process served is attached. Nowhere is there such a document in the record of appeal.
Both affidavits of service are bad.
The respondent, called two witnesses to prove that the originating process was duly served on the appellants.
PW1 is the deponent to the 2nd affidavit of service, Linus O. Maduwuba.
Said on oath that:
” … On 3/3/98 I accompanied the plaintiff who acted as pointer to serve the defendants. I served them personally one after another at Ndiogbuonyeoma Arondizuogu. On the whole I served eleven copies of the statement of claim … ”
And in cross-examination he said:
” ..1 went to house of defendants one after another to serve them. The plaintiff was there as pointer.”
PW2 is a farmer named Julius Eke.
He said on oath that:
” … The defendants were served with the writ of summons. I was present when the defendants were served one after another by the bailiff from Orlu.
I emphasized that I accompanied the bailiff to serve all the defendants.”
In the 2nd affidavit, the bailiff’s name is Livinus, while in his oral testimony his name is Linus. In the affidavit of service, PW1 said that he served the defendants with statement of claim on 13/3/98 while in oral testimony he says he served them on 3/3/98.
Justus Egbuhuzor, who deposed that he served on the defendants the writ of summons was not called to give evidence.
It is well settled that when the affidavit of service is disputed, oral evidence of the deponent is mandatory. The deponent becomes a vital witness. When the deponent is not called to give evidence, grave doubts arise as to if there was service at all. This is further compounded by the testimony of PW2 who said he accompanied the bailiff to serve processes on the defendants, while the bailiff says it was the plaintiff who acted as pointer.
My Lords in the light of all that I have been saying, especially the fact that the deponent to affidavit of service of the writ of summons, was not called to give oral evidence it is safe to conclude and I conclude that the appellants were not served with the writ of summons in suit No. HOR/16/98.
Service of the writ of summons on each of the appellants is a condition precedent to the exercise of jurisdiction by the court See National Bank (Nig.) Ltd. v. Guthrie (Nig.) Ltd. (1993) 3 NWLR (Pt. 284) 643; (1993) 4 SCNJ p. 1; Adeigbe & Anor. v. Salami Klisimo & Ors. (1965) NMLR p.284.
Where no writ of summons was served on the appellants as I have found, the learned trial Judge had no jurisdiction over them in suit No. HOR/16/98. Consequently, the court was not competent to try the said suit and deliver judgment. This is because there was no service of the writ of summons on the appellants. A fundamental omission which in effect is a serious breach of the condition precedent, service of writ of summons on the appellants. Ground 1 of the amended notice of appeal reads:
“The learned trial Judge erred in law when he proceeded to entertain suit No. HOR/16/98 without jurisdiction, when the defendants/appellants were not served with the writ of summons in the said suit.”
The complaint in this ground of appeal is that the writ of summons in suit No. HOR/16/98 was not served on the appellants.
Learned counsel for the respondent observed that since the learned trial Judge had given an interlocutory ruling on the issue of service of originating process on the appellants, the option open to the appellants since the ruling was not in their favour is to obtain leave of court to appeal, and since they did not obtain leave to appeal ground 1 is incompetent. He further observed that since the time appeal had since expired and the appellants did not seek extension of time to appeal the said ground is incompetent.
The point taken is interesting but misconceived.
The issue in ground 1 is jurisdiction. It questions the competence of the court to hear the suit.
Jurisdiction can be raised on appeal and even for the first time at the Supreme Court. See: Usman Dan Fodio University v. Kraus Thompson Organsation Ltd. (2001) 15 NWLR (Pt. 736) p. 305.
However, a party raising the issue of jurisdiction on appeal must make it a ground of appeal to enable him formulate an issue from the said ground. The reasoning is simple. The ground of appeal is good notice to the respondent of the case he will meet on appeal.
The cases cited by learned counsel for the appellant are good authorities for situations where a party seeks leave to appeal, and extension of time to appeal. The authorities are not helpful as they say nothing about a ground of appeal that questions the jurisdiction of the trial court to hear the case from which the appeal emanates.
My Lords, an appellant who wants to raise an issue of jurisdiction on appeal does not need leave. All he needs do is to make the issue of jurisdiction a ground of appeal and formulate an issue thereon.
Consequently, ground 1 in the amended notice of appeal is competent and the issue formulated from ground 1 is also competent.
In my view, the trial court lacked jurisdiction to entertain the suit since the writ of summons was not served on the appellants.
Accordingly, the proceedings, and the judgment delivered in suit No. HOR/16/98 on 15/11/2000 are null and void, and hereby set aside. In the end the appeal succeeds, and it is allowed.
Other Citations: (2007)LCN/2356(CA)
