United Bank of Africa PLC & Ors. V. Michael Adedapo Ademola (2008)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEINDE SHOREMI, J. C. A.
The Respondent in this case by a writ of summons filed in the lower court claims as follows:
“The Plaintiffs claim jointly and severally against the defendants is for:-
1. Declaration that the purported sale of the Plaintiffs Landed property situated at Block ‘E’ Plot 5 on Isikan Family Layout off Akure Ondo Road, described and Delineated on Survey Plan Number MAW/625176, to an unknown person and previously mortgaged to the National Bank of Nigeria vide No. 29 at page 29 in volume 231 in the Lands Registry, Akure is illegal, Null, void and of no effect whatsoever.
2. Perpetual Injunction restraining the 2nd Defendant and or any of His Commissioners and in particular the 3rd defendant from giving the Governor’s consent to any transfer or dealing on the said landed property by any person or unknown buyer under the Lands use Act.
3. Injunction restraining the 4th defendant and or the 3rd defendant from effecting any registration evidencing the aforementioned purported sale if the Governor’s consent had been obtained before the institution of this suit and also mandatory injunction commanding the 3rd and 4th defendants to effect an amendment to the Registrar of Deeds reflecting the true mortgage of the said landed property as the National Bank of Nigeria Ltd. and the Plaintiff as the true owner and mortgagor to the said National Bank of Nigeria Limited of the said landed property.
4. Order of Court commanding the 1st, 5th, 6th, 7th and 8th Defendants to pay the Plaintiff the sum of N141, 200.00 being the rent due to the Plaintiff from April, 1992 and up to August, 1996 and to continue to pay the rent to the Plaintiff up to the date of judgment with 22 percent interest on the arrears of rent.
5. N100, 000.00 (One Hundred Thousand Naira only) being Special and general damages being the cost of this litigation, Trespass to the said property and cost of medical treatment for coma and hypertension resulting from the effect of the news Of the purported sale of the said property.
Dated at Akure this 1st day of February, 1997.”
Having ignited his claim by serving the writ of summons on the defendant now appellant, parties filed and exchanged pleadings.
The respondent was a banking customer of the appellant from whom he had obtained a loan facility of N125, 000.00 for which he gave his property at Block ‘H’ Plot 11 & 28 situate at Fanibi Layout Akure as security.
Simultaneous with the respondents dealing with the appellant, the respondent was also a customer of the National Bank Nigeria Ltd to whom he had mortgaged another property of his Block ‘E’ Plot 5 situate at Isinkan Family Layout off Akure Ondo Road as security for another loan. This other loan having been paid, Certificatt: of Occupancy of the mortgaged property was returned to the respondents. See Exhibit ‘A’
The Respondents having failed to repay the loan granted him by the appellant, the respondents other property was traced out by the appellant i.e. Block ‘E’ Plot 5 at Isikan Layout – was sold by the appellant instead of the property at Block H Plots 11& 28 at Fanibi Lay-out.
The parties proceeded to trial on the following documents as amended from time to time pursuant to the orders of the trial court as follows:
(1) Writ of Summons issued 21st of August, 1992;
(2) Amended Statement of Claim dated 4th June 1998 filed 26/6/98 vide application med on 26/6/78 and quoted without objection on 14/10/98;
(3) Amended Writ of Summons 1/2/97
(4) Amended Statement of Defence dated 11/3/97 med same day and Reply to Statement of Defence dated 20th April, 1994 and filed same date.
The case went for trial on the above papers filed and after the addresses by both counsel for the appellant and Respondents the trial Judge in his judgment gave judgment to the respondent in the following terms:
“Having found that the property sold by the 1st defendant was not the property mortgaged to it as security the claim of the plaintiff succeeds.
The judgment of this Court is therefore as follows:-
1. It is hereby declared that the purported sale of the Plaintiffs landed property situate at Block E plot 5 on Isikan Family Layout off Akure/Ondo Road is illegal, null and void and of no effect whatsoever.
2. The 2nd, 3rd and 4th defendants are hereby restrained From effecting any registration in respect of the Aforementioned illegal sale of the plaintiffs property At Block E plot 5 on Isikan Layont off Aknre/Ondo Road.
3. If any registration had been made in consequence of the illegal sale the 3rd and 4th defendants are hereby ordered to amend the illegal registration to reflect the name of the true owner i.e. the plaintiff in this case.
4. The 1st, 5th, 6th, 7th and 8th defendants shall pay the sum of N141,200.00 to the plaintiff being the arrears of rent due from April 1992 to August 1998 and thereafter to pay the rent to the plaintiff at N1, 000.00 per Flat per month until the date of judgment. The plaintiff is also entitled to 22% interest on the arrears of rent and 10% interest on the judgment debt until it is fully liquidated.”
5. The plaintiff is not entitled to special damages as no evidence Of special damages was led before the court. He is however entitled to general damages which is assessed at N10, 000.00.”
Aggrieved by this decision the 1st defendant appealed to this Court. The appellant filed 3 grounds of appeal quoted hereunder without particulars
“(1) The Learned trial Judge erred in Law to assume jurisdiction in this matter when the Writ of Summons that initiated proceedings therein was void for non-compliance with the mandatory provisions of the Sheriffs and Civil Process Act CAP 407 Laws of the Federation of Nigeria 1990 Volume 22.
(2) The Learned trial Judge erred in law when he held that the failure of The Plaintiff to repeat the claim in the Writ of Summons in the Statement of Claim is not an irregularity, a matter of practice and Not of law contrary to the principles of law enunciated by the Supreme Court in the following cases.
(3) The Learned trial Judge erred in law to have awarded 22% interest Contrary to the Common Law Principle and Practice adopted in Nigerian Courts as enunciated in the Supreme Court decision in REUBEN. N.A. EKWUNIFE V. WAYNE (WEST AFRICA) LIMITED (1989) 5 N.W.L.R. (PART 22) 422.”
Briefs were filed and exchanged. The Appellant brief of argument was deemed filed on 11/5/06. Respondents brief was filed on 17/5/06 while the Reply brief was deemed filed on 13/3/07.
When the appeal came up for hearing on 15/1/08. Mr. Femi Sarumi for the appellant adopted his briefs and relied on them while Mr. Falowo for the Respondent also adopted his brief and relied on it. The Respondent filed a notice of intention to rely on a preliminary objection and this was incorporated in his Respondents brief.
In his notice of preliminary objection he urged the court to strike out the Appellant brief of argument and Ground 1 of the Notice of Appeal and that the entire appeal be dismissed.
Grounds upon which the objection were laid
(a) The appellant brief of argument as filed raised and Argued without prior leave of this Honourable Court An alleged defective issuance of Writ of Summons Being a fresh part of substantial law never raised before The trial court;
(b) The appellant Notice of Appeal as filed raised an issue of defective Writ of Summons for the 1st time on appeal Without prior leave of Court.
In his argument the Respondents argued that Issue A raised in the appellant’s brief flows from an alleged issuance and service of a Writ of Summons when no such issue was never canvassed by the parties or raised-in the judgment of the Court appealed against. He argued that the appellant neither sought nor obtained the required leave of Court to raise the said Issue A arising from ground 1 of the Ground of Appeal citing the following cases:
BALADECH TECH. CO. LTD. & ORS. v. INTERCITY BANK PLC (2005) 2 FWLR Pt. 2671040 at 1059 KANO ILE PRINTER LTD. v. GLOEDE & HOFFNIG. LTD. (2005) 4 FWLR (Pt. 278) 69 at 75. BANKOLE & ORS. v. PELU (1991) 8 NWLR (Pt. 211) P. 523 at 533.
It will be pertinent to state here issues formulated by the appellant in his brief of argument. I therefore quote.
ISSUE A
Whether the Writ of Summons that initiated the proceedings in this matter was initiated by due process of law as to confer jurisdiction on the trial Court (Ground 1)
ISSUE B
Whether by virtue of the amendment of the Writ of Summons and Statement of Claim before the Court and if no whether the trial Court was right in awarding 22% interest on the arrears of rent (Grounds 2 & 3)
In his reply brief the appellant argued that the objection is misconceived and argued also that the new issue raised bothers on jurisdiction therefore the appellant does not need to seek and obtain the leave of the appellate Court to raise same. Citing the following cases. ISAAC GAJI & ORS. V. EMMANUEL D. PAYE (2003) FWLR Pt. 163 at 6 BENEAN V. OBIAKOR (2002) FWLR Pt. 113,299 at 301.
He urged the Court to dismiss the preliminary objection. I will now proceed to deal with the objection of the Respondent. A careful consideration of the new issue raised shows that jurisdiction and competence of the lower court to decide the case is in issue. It is trite that the issue of jurisdiction is a threshold and is paramount and of great importance in the adjudication of any matter. It is equally trite that once the issue of jurisdiction is properly raised in the adjudication of any matter, it has to be promptly considered and decided upon one way or the other. This is because the existence or otherwise of jurisdiction goes to the very root of the matter.
Jurisdiction is the life wire of a Court as no Court can entertain a matter where it lacks jurisdiction. Issue of jurisdiction can be raised at any time even on appeal to the Supreme Court. Because of its decisive nature See DAIRO V. U.B.A. – (2007) All F.W.L.R. Pari 392 page 1846 al Pages 1872 – 1873 H-B.
For the above reasons the issue of jurisdiction by the appellant is well taken and does not require the leave of Court to raise such an issue. In the event the objection of the Respondent is dismissed as it is of no moment. I now proceed to the argument of the parties on the main appeal.
On Issue 1 the appellant submitted that the writ of summons that initiated proceedings in this matter was not raised by due process of law. The writ was issued and served on the Akure Branch of the appellant who is a Limited liability Company. Issuance and service on Limited Liability Company under the High Court Civil Procedure Rules of Dodo State is regulated by the provisions of Order 12 Rule 8.
To buttress his point he called in aid the provisions of section 78 of Companies and Allied Matters Act and the cases of ETHIOPIAN AIRLINES V. HON JUSTICE SYLVESTER UMARU ONU (2005) All FWLR PI. 276, 632 at 637 KISARI INTERNATIONAL LTD. V. LA TERMINAL COY. LTD. (2001) FWLR PT. 66, 766 at 770/71.
He argued that it is imperative on the respondent to seek and obtain leave to issue the writ of summons on the appellant at its Registered Office at 57 Marine Lagos outside the jurisdiction of high Court of Justice Akure pursuant to Order 5 Rule 14 High Court Civil Procedure Rule of Ondo State.
He also relied on Sections 97 and 99 Sheriff and Civil Process Act there are conditions precedent to ignite the jurisdiction of the Court. The Respondent completely failed to comply with the rules as enunciated above.
He relied in KALU MARK & ANOR. V. GABRIEL EKE (2004) All F.W.L.R. PI. 200 1455 at 1464.
He said the writ of summons was not promptly issued to confer jurisdiction on the Court and that parties can not by consent confer jurisdiction on the Court.
ON ISSUE 2
He argued that by the Amended Statement of Claim made on 11th February, 1987 the Respondent claimed as per his Writ of summons. He submitted that there is no nexus between the Claim of the Respondent and the Amended process before the Court. The plaintiff did not claim under his amended writ of summons. It is therefore clear from his argument that there was no claim before the lower court to warrant the judgment delivered. Therefore there was no justification for the award of 22% interest on the arrears of rent from April, 1992 to August 1996 as it was never based on any existing contract or any mercantile custom. He urged the court to allow the appeal and set aside the judgment.
The Respondent relied on his argument in his preliminary objections in the argument of Issue A.
ON ISSUE B
The Respondent submitted that the words “where upon the plaintiff claims as per his writ of summons” He argued that as a general rule a Statement of Claim supercedes the Writ of Summons, that is only so in so far as the Statement of Claim sets out the claim without reference to the writ. He argued that the amended Statement of Claim incorporates the claim by reference to the writ of summons then both the writ of summons and the statement of claim must be read together (as finally amended, therefore the general rule of super session does not apply. He cites KESHIRO V. BAKARE (1967) ANLR 299.
Having set out the submissions of learned counsel to both parties, I now proceed to consider issue A which is whether the writ of summons that initiated proceedings in this matter was initiated by due process of law to confer jurisdiction.
There is no gainsaying that it very clear that where a complaint in any ground of appeal is about failure to observe due process and not fulfillment of any condition precedent to the exercise of jurisdiction, such non fulfillment of conditions such precedent has to be decided.
A Court is said to be competent when
(a) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other.
(b) The subject matter of the case is within its jurisdiction and there is no Feature in the case which prevents the court from exercising jurisdiction.
The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See ENYIBROS LTD. V. N.D.I.C. 29 NSCQR Vol. 29 Part 11 Page 1551 at Pages 1579-1580.
The Appellant complained that this proceeding was not proper before the Court having regard to all the rules and laws cited above. Service of process is a sine qua non for any effective adjudication, other wise a court has no jurisdiction over a party w ho h as not been served unless he otherwise submits tot he courts jurisdiction. Thus the issue of service of court processes is basic and fundamental as it is the foundation of a court action. If there is no proper service, the court is without jurisdiction.
See the following cases – B. B. APUGO & SONS V. O.H.M.B. (2005) 17 NWLR Pt. 954 305 at 335 D – A AJIBOLA V. SEJEKE (2003) 9 NWLR (Pt. 826) 494; AEB PLC V. LASODA NIG. LTD. (1995) 7 NWLR (PT. 405) 26; MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; ADEGOKE MOTORS LTD. V. ADESUYA (1989) 3 NWLR (Pt. 109) 250.
It should however be noted that issuance of a writ of summons and the service thereof are not the same. They -are separate and distinct steps in a proceedings. Let it be remembered that the argument of the appellant in this case is that issuance and service of court processes in this case is on a limited liability company whose registered office according to the appellant is in Lagos.
Section 78 of the Companies and Allied Matters Act Cap C20 Laws of the Federation of Nigeria Vol. 3 reads.
“Service of Documents on Companies
A court processes shall be served on company in the manner provided by the Rules of court and any other document may be served on a company by leaving it at, or sending it by post to the registered office or head office of the company.” Note the words Registered office or head Office.
I then go to the rules of Court as applicable in Ondo State as the argument of the appellant is that t he writ is supposedly to be served on t he Registered Head Office of the appellant which is in Lagos outside jurisdiction. Order 8 Rule 14 of the Ondo State high Court (Civil Procedure) Rules states “14 No Writ or notice of which is to be served out of the jurisdiction shall be issued without leave of court”
The appellant also complained that the writ was not endorsed in compliance with Sections 97 and 98 of the Sheriffs and Civil Processes Act Cap 407 L.F.N. I have set out the Rules and Sections of Laws referred to by the appellant.
Let me say at this point that the complaint of the appellant seems to me to be against service and not against the validity of the Writ itself.
There is a difference in law between the validity of a writ and the validity of the service. If a writ is valid any defect in service becomes a mere irregularity which makes the writ voidable but not void and in that case the Appearance by a defendant may constitute a waiver, thus validating an otherwise invalid service of the writ. In the instant case the appellant has waived the irregularities by filing a defence and even participating till the end.
ADEGOKE MOTORS LTD. V. ADESOYA (1989) 3 NWLR (PT.109) 250 EZOMO V. OYAKHIRE (1985) 2 SC 260
KISARI INVESTMENT V. LA TERMINAL LTD. (2001) FWLR PT. 66 766 Pages 785 – 786 Paragraphs H – A
In EZOMO V. OYAKHIRE (1985) 2 SC 260 the Supreme Court held that a defendant entering appearance on the strength of an irregular service of an otherwise valid writ of summons constitutes not only a waiver of the irregularity but also is a submission to the jurisdiction of the court. A writ of summons can only become void by an intrinsic and substantial defect in the writ itself.
The address for service shown on the Amended writ of summons is c/o His Solicitors Yemi Olajide & Co. 17 New Hospital Road Akure. The defendant participated and completed the hearing without asking that the service of the writ be set aside. In the case of AKHIWU V. THE PRINCIPAL LOTTERIES OFFICER MID WESTERN STATE (1972) 2SC 183 it was held that a party can not take advantage of an irregularity which he adopted or acquiesced in and there after be heard to complain on appeal.
I adopt Oguntade’s J.C.A. now JSC view in the case of Dauphin Nig. Ltd. V. M.A.N. (2001) FWLR Pt. 47 at (Page 1136 paragraphs C – E) where he held the view that a Limited liability company should be served with a writ of summons by giving the writ or process for service to any director, secretary or other principal officer or by leaving it at the office of the corporation or company.
Leaving the process with an employee would be prima facie good service which could be rebutted by proof that the employee who received the process did not deliver it to the company.
In light of the above, I answer Issue A in the affirmative and in favour of the Respondent. Ground 1 of the Ground of Appeal fails.
ISSUE B Complains about the award of cost. It is misconceived by the appellant that the Respondent had no writ before the court. The statement of claim to which the Respondent replies to is manifest on record. I must say here that Issue B is not elegantly couched as it brings confusion. However my decision above had settled the issue of amended statement of claim.
Now was the court right in awarding 22% interest on the arrears of rent? I can not see any claim made by the Respondent for interest neither is it in evidence that there was agreement between parties that interest will be charged. In this case the court has no basis for the award of interest not withstanding the recklessness of the Appellant in dealing with Respondent’s property which is the subject matter of this case.
Interest can be claimed by a party either as a matter of right or statute. The interest awarded in that case was not shown to have been contemplated by the agreement between the parties.
There are no averments in the Statement of claim (as amended) to entitle the respondent to interest.
See HIMMA LTD. V. ALIYU (1994) 3 NWLR Pt. 347, page 667 where Onu JSC remarked as follows:
“Adjudication on the Plaintiff right to interest in such a case is like on any other issue in the case based on the evidence placed before the Court. The evidence called at the trial such a case will also establish the proper rate of interest and the date from which it should begin to run whether from accrual of cause of action or otherwise.”
Order 40 Rule 7 of the Dodo state High Court provides as follows:
“The Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the Court thinks fit, and may order interest at a rate not exceeding ten naira per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards, as the case may be.”
Therefore the award is neither supported by law or evidence. The award of interest by the learned trial Judge is set aside. Save the setting aside of the award of interest the judgment of the trial Judge is affirmed as follows
“Having found that the property sold by the 1st defendant was Dot the property mortgaged to it as security the claim of the plaintiff succeeds. The judgment of this court is therefore as follows:-
(1) It is hereby declared that the purported sale of the Plaintiffs landed property situate at Block E plot 5 on Isikan Family Layout off Akure/Ondo Road is illegal, null and void and of no effect whatsoever.
(2) The 2nd, 3rd and 4th defendants are hereby restrained From effecting any registration in respect of the aforementioned Illegal sale of the plaintiff’s property at Block E Plot 5 on Isikan Layout off Akure/Ondo Road.
(3) If any registration had been made in consequence of the illegal Sale the 3rd and 4th defendants are hereby ordered to amend the said illegal registration to reflect the name of the true owner. i.e. the plaintiff in this case.
(4) the 1st, 5th, 6th, 7th and 8th defendants shall pay the sum of N141, 200.00 to the plaintiff being the arrears of rent due from April 1992 to August 1996 and thereafter to pay the rent to the Plaintiff at N1, 000.00 per flat per month until the date of judgment.
(5) The plaintiff is not entitled to special damages as no evidence of Special damages was led before the court. He is however entitled to general a damage which is assessed at N10, 000.00.”
I award no cost.
Other Citations: (2008)LCN/2732(CA)
