IN THE COURT OF APPEAL OF NIGERIA
ON THUSDAY, THE 13th of February, 2014
ALHAJI ABDULLAHI MADALLA .......... APPELLANT
ALHAJI BALA GUSAU ......... RESPONDENT
Babatunde Akintade for Appellant
J. A. Achimugu with Yahaya Achadu for Respondent
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High court of Justice Kaduna State sitting at Kaduna delivered on the 28th day of July 2010 by Bashir U. Sukola J.
A summary of the facts that gave rise to the appeal was that the plaintiff (hereinafter called the respondent) on behalf of himself and the beneficiaries of the estate of ALHAJI ABBAS ALIYU MOHAMMED GUSAU filed an action at the lower court against the defendant (hereinafter called the appellant).
The reliefs the respondent sought for at the Lower Court is reproduced thus:
"The Plaintiff claims against the Defendant as follows:-
(1). the sum of forty five million, nine hundred thousand naira (N45,900,000.00) only being the total sum paid by the deceased to the defendant in Kaduna, Kaduna state for a property which the defendant subsequently sold to a third party.
(2). Interest at the rate of 10% per annum on the judgment sum from the date of judgment until same is fully liquidated."
On the 28/06/10, learned counsel to the respondent moved a motion ex parte dated 25/06/10 praying for the following:
"AN ORDER FOR SERVICE of the originating processes in this suit and hearing notices on the defendant by serving same on the defendant's solicitor in suit No.KDH/KAD/102/0A before this Honourable Court to wit:
DR YUSUF DANKOFA
YUSUF DANKOFA & CO
SUIT 003 CHOICE PLAZA
NO 23/24, ALKALI ROAD, KADUNA"
At the hearing of the application the attention of the Court was drawn to paragraph 4 of exhibit "A" which is the sworn deposition of the Appellant showing that his residential address is situate at No. 5B Gora Street Malali Kaduna, and Exhibit C which is the affidavit of non-service deposed by the Bailiff of the Court showing that No: 5B Gora Street does not exist in Malali Kaduna nor in Kakuri where there is also a Gora Street.
The Lower Court was also referred to Exhibit B which showed that Dr Yusuf Dankofa is the retained counsel of the Appellant in suit No: KDH/KAD/102/08 and also paragraph 1 of Exhibit A where the Appellant also deposed that Dr Yusuf Dankofa is his solicitor.
It was argued on behalf of the Respondent that in view of the non-existence of No. 5B Gora Street Malali Kaduna, the only probability of the Appellant coming to know about the suit is by serving him through his counsel in another suit No:KDH/KAD/102/08, which is also subsisting before the same court.
The court granted the order as prayed, that the Appellant be served through Dr Yusuf Dankofa who shall personally acknowledge service of all processes in this suit for and on behalf of the Defendant. The matter was adjourned to 28/07/10 for hearing.
On the 28/07/10, Babatunde Akintade was in Court for Dr. Yusuf Dankofa and the Respondent was represented by Mr. Achimugu Esq. Mr. Akintade presented a motion on notice dated 26/07/10 praying the Court for the following:
"AN ORDER of this Court vacating the Court order made on the 28/06/10 for service of the originating processes in this suit on Dr Yusuf Dankofa rather than the Defendant for being unknown to law and equity".
The application which was opposed by the learned counsel to the Respondent was supported by a 5 paragraph counter affidavit. The Court in dismissing the motion on notice held thus:
"The instant motion on notice seeks an order of this Court vacating the order made on 28/06/10 directing that the originating processes on the Defendant herein be served by substituted means through his counsel.
There is no processes of a Court are meant to be transmitted to the party named by whatever means convenient upon the direction of the Court. The circumstances justifying the order made for service of the processes on the Defendant through Dr. Dankofa were clearly laid out; being that the address for service as given by the Defendant to the Plaintiffs herein does not exist physically. The identification of an address as given by Dr Dankofa Y. being counsel to the Defendant in suit No.KDH/KAD/02/08 and in paragraph I of exhibit A where the Defendant made relevant deposition.
To suggest that the order for service through anybody whatsoever is unknown to law and equity is in itself absurd. The orders of this court are meant to be obeyed particularly the instant order directed at an officer of this Court in person of Dr. Y. Dankofa.
I hold that the totality of the submissions contained in the written addresses dated 26/07/10 and 27/07/10 are irrelevant and baseless. The motion on notice dated 26/07/10 is dismissed in its entirety."
In an application dated 21/06/10 for summary judgment pursuant to Order 11 Rule 1 of the rules of the Kaduna State High court, Learned counsel to the Respondent submitted that the Appellant has been served with the Court processes upon the order of the court made on 28/06/10, and that he had not filed any processes as required under Order 11 Rule 4 of the rules of the Kaduna State High Court. The learned counsel to the Respondent made an application in terms of Order 11 rules 5(2) for summary judgment against the Appellant in sum of N45,900,000.00 only plus 10% interest per annum on the judgment sum until same is fully liquidated.
The Court in its rulings held inter alia thus:
"The plaintiff's claims against the defendant as follows:
1. The sum of forty-five million nine hundred thousand naira (N45 900,000.00) only being the total sum paid by the plaintiff to the defendant in Kaduna, Kaduna state for a property which the defendant subsequently sold to the third party.
2. Interest at the rate of 10% per annum on the judgment sum from the date of judgment until same is fully liquidated".
It is instructive to note that the defendant was duly served pursuant to an order of this Court made on the 28/06/10. The defendant neither entered appearance nor filed any defence to the plaintiff's claims.
Accordingly, therefore I grant the plaintiff's application in its terms pursuant to Order 11 Rules 5(2) of the High Court (Civil Procedure) Rules 2007 of Kaduna State.
Judgment is hereby entered for the plaintiff and against the defendant in the sum of N45,900,000.00 (forty -five million nine hundred thousand naira) only being the total sum paid by the plaintiff to the defendant in Kaduna, Kaduna state for property No: 634 Minister Hill, Maitama, Abuja which the Defendant subsequently sold to a third party. The grant of the plaintiff's motion on notice dated 21-6-10 is also predicted upon Exhibit A attached to the plaintiff's statement of claims being acknowledged for receipt of the judgment sum from the plaintiff to the Defendant to which both parties executed on 2-6-06.
I also grant claim No 2 being 10% interest per annum on the judgment sum from today until judgment sum is fully liquidated."
The Court made a further award as follows:
"I assess and award costs in the sum of N130,000.00 being the filing fees of the writ of summons together with other processes and incidental expenses in favour of Plaintiff and against the Defendant."
The Appellant dissatisfied with this decision of the trial Court appealed to this Court. The notice of appeal which was dated 28/07/10 was filed at the registry of the lower court on the same date. It contained two grounds of appeal with the statement that further grounds of appeal will be filed upon receipt of the record of proceedings. The Appellant however did not file any further grounds of appeal. It is clear from the two grounds of appeal that both grounds dealt with the issue of the lack of service of the Court processes on the Appellant.
In accordance with the rules of this Court, both parties filed their respective briefs of argument, thus joining issue on the matter. The Appellant's brief of argument dated 1/9/10 was filed on 3/9/10. Learned counsel to the appellant adopted the said brief as the Appellants' argument in this appeal. He urged this Court to allow the appeal because the lower Court lacks the jurisdiction to entertain the suit for lack of service which is fundamental and germane in law.
Learned counsel to the Respondent also adopted their brief of argument dated and filed on 21/9/10 as the Respondent's argument in the appeal and urged the court to dismiss the appeal as being completely devoid of merit.
The Appellant distilled a sole issue for determination from his two grounds of appeal and it reads as follows:
"Whether in the instant case, the Court was right to have assumed jurisdiction and even award judgment to the Respondent, when it was clear that the Appellant being a necessary party to this suit was never served the originating processes of the suit in question and therefore could not have been aware of the Court action against him."
The Respondent on his part also distilled a lone issue for determination in this appeal, and same is adumbrated thus:-
"Whether the Defendant who was served by substituted means was not served with the originating processes in this suit as required by the rules of Court."
In Sterling and Eng. Nig, Ltd v. Mahmood Yahaya (2005) 22 NSQQR 1 at 20. It has been held that an Appeal court can formulate an issue or issues for determination based on the grounds of appeal filed where the issues formulated by the parties are inadequate for the determination of the appeal.
In the instant case the issue formulated for determination by both the Appellant and the Respondent are inelegantly couched and are inadequate for the determination of this appeal.
However two main questions can be deduced from the grounds and notice of appeal and these are,
i. whether the trial court erred in law when it granted an order for substituted service of the originating processes in the suit; and
ii. whether the trial judge erred in law in entering a summary judgment against the Appellant.
Learned counsel to the Appellant submitted that service of process is a fundamental requirement for Court's jurisdiction, he referred the Court to the cases of;
FULANI VS TUMBURKAI (2005) ALL FWLR (PART 291) PAGE 1649 AT 1651 - 1652. UBA PLC VS AYINKA (2000) NWLR (PART 663) PAGE 83 AT 88.
Learned counsel to the appellant argued that the Lower Court did not have any jurisdiction to entertain the matter let alone give judgment since the Appellant as a necessary party was not served with the originating summons of the Court.
The court was referred to the case of REMAWA vs NACB CONSULTANCY AND FINANCE COMPANY LIMITED (2007) ALL FWLR (PART 349) PAGE 1111 AT 1115.
He submitted that the judgment of the Lower Court against the Appellant was delivered without jurisdiction and the effect of judgment without jurisdiction has been duly established in the case of OLUFEAGBA VS ABDULRAHEEM (2010) ALL FWLR (PART 521) PAGE 1033 AT 1039.
The learned counsel to the Appellant contended that the purported service of the originating summons on a party that is not a necessary party to the suit is fatal to the case of the Respondent as there are alternative procedures provided by law for service of originating summons in the nature of substituted service by pasting at the last known address of a party or at the Court premises or publication on the pages of a newspaper.
Learned counsel to the Appellant referred the Court to Order 7 Rule 3 of the High Court Civil Procedure Rules of 2007 and submitted that the Appellant did not give any written authority to his legal practitioner to accept service of the originating summons.
He maintained that it is the duty of the court to ensure compliance with its rules and referred the Court to the case BOTTLING COMPANY LIMITED VS ABIOLA & SONS LIMITED (1995) 3 NWLR PART 383.
Learned counsel to the Appellant insisted that the service of originating summons is not a mere technical rule of procedure but it goes to the root of the case. The Court was referred to the cases: CHUKWUOGOR VS CHUKWUOGOR (2000) ALL FWLR PT.349; SAUDE VS ABDULLAHI (1989) NWLR PT.116 PAGE 387 AT 442.
Learned counsel urged this Court to allow the appeal.
In response to the argument of the Appellant, it was submitted that service of processes on a party is a fundamental issue which touches on the jurisdiction of the Court. Learned counsel to the Respondent argued that in the instant case, the Appellant cannot be personally served because the address which the Appellant himself gave on oath as his address does not exist and can only be served upon an order of the Court by substituted service. He referred the Court to the case:
KIDA VS OGUNMOLA (2006) 8 MJSC AT PAGE 10.
Learned counsel to the Respondent maintained that by virtue of the disposition in the affidavit of the Court Bailiff at page 037 of the record of proceedings that No.5B Gora Street does not exist, the Respondent applied by motion ex parte for and obtained an order at the lower Court for substituted service.
He contended that since Dr. Yusuf Dankofa was acting as counsel for the Appellant in a sister suit pending before the same Court, it was prudent to have sought for an order for substituted service, so that the Appellant could be served through his counsel in a sister suit.
The learned counsel to the respondent submitted that the affidavit of service of the originating processes effected on the Appellant as per the order for substituted service as contained on pages 049 & 063 of the records of proceedings constitute sufficient or prima facie proof in law that the appellant was duly served. The Court was referred to the cases of:
JIKANTORO VS DANTORO (2004) ALL FWLR (PT.216) PAGE 414 - 415;
UKPO VS EKPENYONG (2006) AFWLR (PT.324) PAGE 1943;
OMABUWA VS OWHOFATSHO (2006) AFWLR (PT.323) PAGE 1655 AT 1676;
INTERGRATED BUILDERS LTD VS DOMZAQ VENT NIG LTD (2005) FWLR (PT.263) PAGE 780 AT 792.
Learned counsel contended that neither the appellant nor Dr. Yusuf Dankofa through whom the substituted service was effected filed any counter-affidavit to the affidavit of service to challenge same or the fact of service as required by law. The Court was referred to the cases:
FATOKUN VS SOMADE (2002) FWLR (PT.93) p.1989 AT p.2000.
UKO v. EKPENYONG (2006) AFWLR (PT.324) p.1927 AT p.1950.
Learned counsel maintained that failure of the appellant to file any counter affidavit to challenge the affidavit of service is fatal to his appeal particularly when Dr Yusuf Dankofa (his solicitor in a sister suit No: KDH/KAD/02/08) through whom substituted service of the originating processes were effected never averred in his affidavit to vacate the order that the defendant had not been served.
Learned counsel to the Respondent submitted that the service was evidenced by an affidavit of service sworn by the officer of the Court who effected the service based on the order for substituted service. He urged the Court to hold that the originating processes in this suit were duly served on the Appellant as manifest on the face of the affidavit of service at pages 049 & 063 of the record of proceedings.
Learned counsel contended that the appellant who pretended not to have been served with the originating processes in the suit filed a notice of appeal and a motion for stay of execution on the 28/07/10, the very day judgment in the suit was delivered against him. The Court was referred to pages 072- 081 and pages 092-093 of the record of appeal.
Learned counsel to the Respondent also referred the Court to page 078 of the record of proceedings wherein the chambers of Dr Yusuf Dankofa wrote a letter to the registrar of the lower Court dated 28/07/10 (the very day the judgment was delivered) as the Appellant's solicitors requesting for the record of proceedings upon the Appellants' instruction.
Learned counsel to the Respondent urged the Court to dismiss the appeal as it is completely devoid of merit.
On the issue of the service of the originating processes which the Appellant claimed is fatal to the case of the Respondent as there were alternatives such as publication on the pages of a newspaper.
The rules of court stipulate two main ways by which a Defendant may be served with originating processes; these are by personal service and by service other than personal. The former is the general rule while the latter represents a miscellany of the methods that are used on account of the peculiar circumstances of a particular Defendant or because of his disability or as a result of special circumstances of the case.
Substituted service is very important form of non-personal service which is used often. If the Defendant for any reason, cannot be served personally, the method may be used. It may be, for example, that he is untraceable or evading service.
The term 'substituted service' is not confined to a specific mode of service but may take any form whereby in the particular circumstances the issue of the process can be appropriately brought to the notice of the defendant.
A plaintiff can only resort to substituted service by applying to Court where it appears that for any reason personal service cannot be conveniently effected, the Court if satisfied may order substituted service.
ORDER 7 RULE 5(1) & (2) OF THE KADUNA STATE HIGH COURT (CIVIL PROCEDURE) RULES OF 2007 provides as follows:
(1). "Where personal service of an originating process is required by these Rules or otherwise and a judge is satisfied that prompt personal service cannot be effected, the judge may upon application by the plaintiff make such order for substituted service as may seem just."
(2). "Every application to the judge for substituted or other service shall be supported by an affidavit setting forth the grounds upon which the application is made."
In the case of MANAGEMENT ENTERPRISES LTD vs OTUSANYA (1987) 2 NWLR 179, the Court held that:
"Service shall be personal save otherwise prescribed by the rules or unless in a case where the Court thinks it just and expedient to direct otherwise."
In BAKARE VS LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) 8 NWLR (Pt.262) page 641 AT 692, it was held that:
"It will be impossible to satisfy the requirements of fair hearing when a party has made it impossible to reach him or hear him".
In the instant case, it is clear from the record of proceedings that there was before the trial Court the affidavit of non-service deposed by Ibrahim Sanusi the Bailiff of the Lower Court showing that No. 5B Gora Street Malali Kaduna (the residential address given by the Appellant in his deposition in Exhibit A, page 031 of the records) does not exist. Also the Respondent by a motion ex parte dated 25/06/10 supported by a 5 paragraph affidavit sought for an order of the Court to serve the Appellant by substituted service through his retained counsel Dr Yusuf Dankofa.
Exhibit 'B' show that Dr Yusuf Dankofa is the retained counsel of the defendant in a sister suit (KDH/KAD/102/08) and in Exhibit A the defendant deposed that Dr Yusuf Dankofa is his solicitor.
In the matter at hand the Appellant had made it impossible to reach him by giving a false and non existing residential address for the purpose of service of the originating process on him and the order by the trial court for substituted service through the defendants' counsel Dr Yusuf Dankofa in suit KDH/KAD/102/08 before the same Court seem just and expedient in the circumstance and the trial Court having been satisfied acted in compliance with the Rules of the Kaduna state High court in granting the order.
On the submission of the learned counsel to the Appellant that the use of other methods of substituted service such as pasting same at the last known address of a party or at the Court premises or in the pages of newspaper should have been preferred.
It is the discretion of the Court to order any of the methods of service prescribed by the Rules of Court to be used and can also make order other than any of those prescribed by the Rules for service of the originating processes on a defendant provided that it can bring the matter to the knowledge of the person to be served.
Hence, a substituted service duly ordered and executed is as effective in law as a personal service.
I find support for this opinion of mine in the case of PORTER VS. FREUDENBERG (1915) 1 KB 888, where the court held that:
"there seem to be no reason why a method other than any of those expressly prescribed by the Rules should not be used, provided that it can bring the matter to the knowledge of the person to be served."
In the instant case the service of the Court processes on the Appellant was by an order of the lower Court to be effected through his retained counsel DR Yusuf Dankofa. The said service in my opinion was proper and effective.
Another issue of contention by the learned counsel to the Appellant is that the Lower Court erred in law when it entered a summary judgment in favour of the Respondent and against the Appellant.
A summary judgment is said to be a judgment given in favour of a plaintiff without a plenary trial of the action. In SODIPO V. LEMINKAIMEN (1986) 1 NWLR 220, the Court defined summary judgment thus:
"It is for disposing, with despatch, cases which are virtually uncontested."
Procedure by way of summary judgment is resorted to by a plaintiff where the defendant obviously has no defence to the action.
In MAC GREGOR ASSOCIATES VS N.M.B (1996) 2 SCNJ 72 AT 81, the court held that summary judgment is resorted to by a plaintiff
"Where there can be no reasonable doubt that a plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purpose of delay."
The summary judgment procedure averts unnecessary delay and expenses, often unavoidable in a full trial, a plaintiff may apply to the court for instant judgment if his claim is manifestly unanswerable both in facts and in law, provided that the claims fall within the class of matters in which under the rules, the Court may grant such judgment.
Order 11 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 2007 provides as follows:
"Where a plaintiff believes there is no defence to the claim, the plaintiff shall file along with the originating process the statement of claim, the exhibits, the depositions of the plaintiffs witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for the plaintiffs belief and a written address in respect thereof"
In the instant appeal, despite the fact that the appellant was duly served with the originating processes, he neither entered appearance at the lower Court, nor filed a statement of defence. The Appellant did not even file any document showing his intention to defend the application for summary judgment filed by the Respondent.
In Olubusola v. Standard Bank of Nigeria (1975) 4 SC 51, it was held that where the Defendant does not file a notice of his intention to defend together with an affidavit on the day fixed for hearing, judgment will be given to the Plaintiff without his calling evidence to proof his claim.
Where a Plaintiff (as in the instant case) has given evidence in a suit which evidence is unchallenged and uncontradicted the trial Court has a duty to rely and act on such evidence.
In the case of Leadway Assurance co. Ltd v. Zeco Nig. Ltd (2004) 11 NWLR (Pt.884) 316 at 329, the Supreme Court had this to say:
"...The evidence was unchallenged and uncontradicted. The law in this regard is settled, where evidence given by a party to any proceeding was not challenged by the opposite party who had opportunity to do so, the court of trial had a duty to act on the unchallenged evidence before it."
In the instant case the irresistible conclusion a reasonable person is bound to arrive at from the fact of this case is that the Appellant has no defence to the claim of the Respondent presented before the Lower Court.
In the case of ANGLO-ITALIAN BANK VS WELL (1878) 38 LT 197 AT 201, the Court held that:
"If the judge is satisfied not only that there is no defence but no fairly arguable point to be argued on behalf of the defendant, it is his duty to give judgment for the plaintiff."
I am satisfied from the facts and evidence contained in the Record of appeal that the Appellant has no defence to the claim of the Respondent and that the Court was right to have entered summary judgment in favour of the Respondent.
This appeal lacks merit and it is accordingly dismissed. The decision of the Lower Court is hereby affirmed. There is no order as to costs.
DALHATU ADAMU, J.C.A.:
I have the privilege and advantage of reading before now the lead judgment of my learned brother Aboki JCA in this appeal. I also find the appeal as lacking in merit and I hereby dismiss it. I affirm the decision of the lower court and award no order on costs.
ITA G. MBABA, J.C.A.:
I have had the privilege of reading, in draft, the lead judgment, just delivered by my learned brother, ABDU ABOKI JCA and I agree, completely, with his reasoning and conclusions.
While arguing, strongly, that the trial Court was wrong to have entered judgment for the Respondent in this case, placed on the undefended list, for the sole reason of lack of jurisdiction, because the Appellant (as defendant) was not served with the originating process of the Court, APPELLANT'S Counsel appeared to have lost sight of the fact that the very Court that entered judgment for the Respondent was the same Court that earlier ordered the service of the Appellant by substituted means, and so had had a dossier of the Appellant's acts of evasion of service, which was considered before the order for substituted service was made. Appellant also seemed to have discounted on the power and effect of order for substituted service, which is a prudent legal masterstroke, designed to catch an evasive party, like Appellant, who tries to run away from service. See BAKARE VS. LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) 8 NWLR (PT.262) 641
"By Order 7 Rule 5 (1) of the High Court (Civil Procedure) Rules of Kaduna State:
"Where personal service of an originating process is required ... and the judge is satisfied that prompt personal service cannot be effected, the judge may, upon application by the plaintiff make such order for substituted service as may seem just."
Of course, by the affidavit before the trial Court upon which the application for the substituted service was founded, it would have been impossible to serve the Appellant by direct personal service, since the address he gave as No.5B Gora Street, Malali Kaduna was discovered to be non-existing by the Registrar of the Court (See Exhibit C attached to the application for substituted service). The trial Court therefore had to order that Appellant be served through his Counsel, (Dr, Yusuf Dankofa) in a sister case pending before that Court.
Appellant never denied being served with the processes by that means of service. It was Dr. Yusuf Dankofa (Appellant's Counsel in the sister case) who tried to set aside the service, alleging that the process was unknown to law and equity. Of course, Dr. Yusuf Dankofa had no power to take out such application or make such prayer being not a party to the suit! His duty was to cause Appellant to be aware of the process of Court dropped at his office. The mode of service was properly located in law and equity, being a substituted service by the Court, to compel the Appellant to come out to face trial over the debt he owed. It was an effective way to track down a run-away debtor, and properly handled by the trial Court.
With this and the fuller reasons in the lead judgment I too dismiss the appeal and abide by the consequential orders in the lead judgment.