IN THE COURT OF APPEAL OF NIGERIA
ON THURSDAY, THE 27th of March, 2014
ALHAJI ABDULKARDIR ABACHA .....Appellant
KURASTIC NIGERIA LIMITED ......... Respondent
F. R. Onoja, Esq. with, E.D. Wuyep (Mrs), Esq.; A. Adamu (Miss), Esq. and A. Aruga (Miss), Esq. for Appellant
Y. C. Maikyau, SAN, with Zubairu, Esq.; Zira Onnaguluchi, Esq. (Miss) and Obasi Obi-Nwagbueze, Esq. for Respondent
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment):
On the 23rd day of December, 2005, Kurastic Nigeria Ltd. brought an ex-parte application before the High Court of the Federal Capital Territory, Abuja praying for leave to place a writ of summons under the Undefended List Procedure pursuant to Order 21 rule 1 and Order 11 rule 5(1)(d) of the High Court of the Capital Territory, Abuja (Civil Procedure) Rules, 2004 and the inherent jurisdiction of the Court. The second prayer was for leave to serve Alhaji Abdulkardir Abacha the originating processes and orders that may be subsequently issued by the Court by substituted means, namely, "By delivery of same to an adult inmate at the residence of the Defendant/Respondent at No. 189 Off, R. B. Dikko Road, Asokoro, Abuja, the venue where the transaction which gave rise to this suit was entered into." The application was supported by a thirteen paragraph affidavit deposed to by Senator Kura Mohammed, a Director of the applicant company/businessman. Upon grant of leave and service of the processes the gist of the application in paragraph 5(a)-(u) of Senator Kura Mohammed's affidavit in support of the motion on notice sets out in the substantive the following facts:
"5. That on the 10th of July, 2003, the Applicant, a public affairs consultant, entered into a Service Agreement with the Respondent whereby he engaged the services of the Applicant to facilitate the settlement with Federal Government of Nigeria, the dispute with respect to the Respondent's frozen bank accounts in Geneva Switzerland. A copy of the Service Agreement dated 10/7/2003 is attached hereto and marked Exhibit "A".
(a) That the Respondent by virtue of the above agreement empowered the Applicant to facilitate and settle all issues, matters and disputes relating to the sum of US $93.7m (Ninety Three Million, Seven Hundred Thousand US Dollars) listed in Accounts principally maintained by the Respondent in Geneva Switzerland, as listed hereunder:
(i) Union Bancaire Privee Geneva Account Name New: Newland Overseas Ltd. Amount frozen - US$8.7m (Eight Million, Seven Hundred Thousand US Dollars).
(ii) Banque Nationale De Paris Geneva, Ac. No.2366915 Genesis Holding Limited, Amount frozen US$15,381,881.00m (Fifteen Million, Three Hundred and Eighty One Thousand, Eight Hundred and Eighty One US Dollars).
(iii) Banque Nationale De Paris Geneva, Ac. No.5641832 Mercury Aviation Services Ltd. Amount frozen -US$13,541,173.00 (Thirteen Million, Five Hundred and Forty One Thousand, One Hundred and Seventy Three US Dollars).
(iv) Union Bancaire Privee Geneva, Ac. No. 2353295 - US$53,318,702.00 (Fifty Three Million, Three Hundred and Eighteen Thousand, Seven Hundred and Two US Dollars).
(v) Banque Nationale De Paris Geneva Ac. No.564088-8, Vectra Commodities, Amount frozen US$154,406 (One Hundred and Fifty Four Thousand, Four Hundred and Six US Dollars) making a total sum of US$91,096,272.00 (Ninety One Million, Ninety Six Thousand, Two Hundred and Seventy Two US Dollars).
(b) That the Respondent agreed to pay to the Applicant 10% of whatever sums that was settled in favour of the Respondent out of the total sum of US$91,096,272.00 (Ninety One Million, Ninety Six Thousand, Two Hundred and Seventy Two US Dollars).
(c) That the Applicant, based on the agreement aforementioned commenced the facilitation and performance of the above agreement by engaging several partners and professional firms in order to achieve settlement of all the disputes and issues between the Respondent and the Federal Government of Nigeria.
(d) That the Applicant set up, facilitated, requested for and held several meetings in Nigeria and in Geneva with the Federal Government of Nigeria represented by officers from the office of the National Security Adviser, the Special Investigation Panel, the Accountant General of the Federation and the Counsel to the Federal Government in Geneva, Switzerland (Mr. Enrico Motrini) on the one hand and the Respondent, the Principal Officer of the Applicant i.e. (myself and Alhaji Umaru Shinkafi -Marafan Sokoto) and the Solicitor to the Respondent in Geneva by name Mr. M.O. Costabela.
(e) That the Applicant pursued the Respondent's brief from all professional dimensions, to wit: political, economic, diplomatic, public affairs, etc, using compromise, consultation, mediation, diplomacy and understanding and above all, the goodwill of the principal partners of the Applicant.
(f) That the Applicant in addition to the above steps took part in negotiating what portion of the foreign funds was to be returned to the Government of Nigeria while the balance was held by the Respondent and it was on the basis of this that the Respondent's Solicitor Messrs M.O. Costabella Pirkl made the proposal contained in a letter to the Counsel representing the Federal Government of Nigeria, (Mr. Monfrini) dated 6th October, 2003. A copy of this letter is attached hereto and marked as Exhibit "B".
(g) That in view of the peculiar nature of the Respondent's case and more particularly the negative perception about the regime led by the Late General Sani Abacha, the assignment carried out by the Applicant presented several difficulties which had to be dealt with by the Applicant.
(h) That it took a long period of negotiation and the Applicant had to bring to bear the past experience of their principal officers and their good will within the Government of Nigeria to have the matter resolved and these facts are evinced by the following correspondences between the Lawyers to the Federal Government of Nigeria and the Counsel to the Respondent:
1. Letter dated September 5, 2003 by Mr. M. O. Costabella to Mr. Monfrini.
2. Letter dated September 9, 2003 from M. O. Costabella to Mr. Monfrini.
3. Letter dated 12th September, 2003 from Mr. Monfrini to M.O. Costabella.
4. Letter dated 5th December, 2003 written by M. O. Costabella to Mr. Monfrini.
These letters are respectively marked Exhibits "C", "D", "E" and "F" respectively.
(i) That on the basis of the negotiations as expressed in Exhibit "C" to "F" above, a final proposal or the settlement and by a letter dated 16th March, 2004 Monfrini Crettol representing the Federal Government of Nigeria, sought for the approval of His Excellency the President of the Federal Government of Nigeria to settle the matter on the terms of the proposal in the letter of 16/03/2004. A copy of this letter is hereto attached and marked Exhibit "G".
(j) That upon receipt of Exhibit "G" the President of the Federal Republic of Nigeria gave approval for the release of the Respondent's frozen funds less $50,000,000 (Fifty Million Dollars) which was to be paid into the account of the Federal Government of Nigeria as a condition precedent for the release of the funds.
(k) That the aforesaid contract was given by the President vide a letter dated 17th March, 2004. A copy of this letter is attached as Exhibit "H".
(l) That by a letter dated 16th April, 2004, the Respondent was intimated of the President's approval as per Exhibit "H" and having received an undertaking by the Respondent to pay the sum of $50,000,000 (Fifty Million Dollars) into the Federal Government of Nigeria Account as instructed by Exhibit "H", the Respondent's accounts were defrozen and all the actions against the Respondent and his companies were withdrawn. Copies of the two letters dated 16/4/2004 by Enrico Monfrini on behalf of the Federal Government of Nigeria are hereto attached and marked Exhibit "I1" and "I2" respectively.
(m) That based on the above extensive and exhaustive deliberations, negotiations and agreement, the Respondent benefited to the tune of USD $43,370,000 (Forty Three Million, Three Hundred and Seventy Thousand US Dollars) as his part of the settlement out of the frozen accounts.
(n) That to achieve the above result the Applicant employed the good will, wisdom, diplomacy and good office of its Principal Partners to wit: Alhaji Umaru A Shinkafi, Marafan Sokoto and Senator Kura Mohammed in the settlement with the Federal Government of Nigeria for the benefit of the Respondent.
(o) That by the above services the Applicant is entitled to the sum of US$4,370,000 representing 10% of the aggregate of USD$43,370,000 (Forty Three Million, Three Hundred and Seventy Thousand US Dollars) sum that is due to the Respondent in the settlement.
(p) That the Applicant made various expenditures including Airfares Abroad, Visa Fees, Hotel accommodation, logistic and contingency funds, etc, in the course of the above services for the benefit of the Respondent.
(q) That the Applicant made a demand for payment of his agreed undertaking and guaranteed 10% fees on the Respondent dated 20th July, 2004 herein marked Exhibit "J."
(r) That the Respondent despite the above Demand Notice, phone calls and verbal discussions has refused, failed and neglected to pay the Applicant the above consideration and professional fees and the Respondent has been out of Nigeria for more than 1 year and even attempts made to contact him abroad has been abortive because he has been evading the Applicant.
(s) That the Respondent's refusal, neglect and failure to pay the Applicant the agreed 10% fees is a violation of the service, agreement and a breach of the Applicant's right therefrom.
(t) That the Respondent has already benefited from the usage and services of the Applicant upon the settlement of the issues and matter with the Federal Government.
(u) That all suits, matters and cases pending hitherto against the Respondent has been discontinued and withdrawn against the Respondent by the Federal Government of Nigeria as a result of the Applicant's services."
Upon defreezing of the accounts and recovery of diverse sums, Alhaji Abdulkardir Abacha would not honour the agreement (Exhibit "A"). The endorsement on the writ of summons reads as follows:
"The Plaintiff's claim against the Defendant is for:
1. The sum of USD 4,370,000 (Four Million, Three Hundred and Seventy Thousand US Dollars) to the Plaintiff as professional fees representing 10% (ten percent) of the aggregate sum due to the defendant in the settlement agreement of USD 43,700,000 (Forty Three Million, Seven Hundred Thousand US Dollars) and upon the conclusion of the settlement facilitated and negotiated by the plaintiff.
2. Interest at the rate of 20% (twenty percent) of the sum of USD 4,370,000 (Four Million, Three Hundred and Seventy Thousand US Dollars) per annum on the above sum from the 20th of July, 2004 until judgment and thereafter 20% interest on the above sum until the final liquidation of the above sum.
3. The cost of this action."
The enrolled order of the Court below at page 17 of the printed record contains the hearing notice showing that "the cause was to be heard on the 6th day of March, 2006." Page 51 of the printed record contains the Certificate of Service endorsed by Mohammed Gaba, Senior Court Bailiff to the effect that service was effected on the 15th day of February, 2006 at 10:00am on Musa Ishaya. When the appellant did not appear his Lordship delivered judgment on the 6th day of March, 2006 in favour of Kurastic Nigeria Ltd. as per the writ of summons.
On the 20th day of February, 2007 Alhaji Abdulkardir Abacha brought a motion on notice supported by affidavit praying that the judgment should be set aside; that the Court should stay execution or further execution pending the determination of the application. The grounds for bringing the application were set out in the motion paper as follows:
"(1) The Defendant/Applicant was not served with the writ of summons and the originating processes in this action and no affidavit of the bailiff of the Court was filed to establish service before judgment was entered.
(2) The judgment was obtained by fraud.
Particulars of Fraud:
- The signature of the Applicant which appeared on the agreement dated 10th July, 2003 purportedly executed between the parties and upon which the judgment was based, is a forged signature and is not the signature of the Defendant/Applicant.
- The person who purportedly signed the agreement as a witness for the Defendant is unknown to the Defendant and the address given by the said witness, Shehu Musa Gaban, as Block 1 Flat 3, F.H.A. Maitama does not exist.
3. The agreement dated 10th July, 2003 purportedly executed between the parties upon which the plaintiff's action was based is an illegal agreement and cannot give rise to any cause of action.
The particulars of illegality are:-
(a) The agreement itself contravenes the provisions of Section 10 of the Corrupt Practices and Other Related Offences Act, 2000.
(b) The agreement is against public policy."
Because of the conflicting affidavits coupled with documentary exhibits his Lordship called for oral hearing to resolve the conflicts. Parties tendered oral and documentary exhibits. Thereafter his Lordship considered these before dismissing the application on 23rd day of September, 2010.
Alhaji Abdulkardir Abacha (whom I shall refer to as "the appellant") filed a Notice of Appeal against the ruling on 28th July, 2010. A brief of argument filed on 29th February, 2012 was with leave of this Court deemed amended on 2nd October, 2013. On 21st September, 2012 the appellant sought leave of Court to adduce further evidence on appeal. The application was granted on 9th May, 2013. The bundle of documents filed on 20th May, 2013 were on application deemed properly filed and served on the respondent on 2nd October, 2013.
The respondent filed brief on 29th February, 2012 which was, with leave of Court withdrawn and struck out on 15th January, 2014. The respondent relied on an Amended Respondent's brief filed on 3rd October, 2013. Furthermore, Kurastic Nigeria Ltd. whom I shall now call"the respondent/cross-appellant" was granted leave on 22nd February, 2012 to cross-appeal. The Notice of Cross-Appeal was filed on 27th February, 2012. The brief of argument of the Cross-appellant was filed on 29th February, 2012. Upon service the appellant/cross-respondent sought and was granted leave to file the Cross-respondent's brief with a deeming order on 2nd October, 2012 and a Reply brief on 4th June, 2012. When the appeal came up for hearing on 15th January, 2014 Maikyau, SAN representing the Cross-appellant sought and was granted leave to file reply brief on 13th January, 2014 with a deeming order. The application was granted and deemed duly filed and served on the Cross-respondent. When the appeal came up for hearing on 29th February, 2012 Maikyau, SAN abandoned the Cross-appellant's brief and it was accordingly struck out. The learned silk drew this Court's attention to the Notice of preliminary objection in the Amended Respondent's brief filed on 3rd October, 2013 at page 2 paragraph 3.0 to page 6 paragraph 4.10 challenging the competency of the Notice and grounds of appeal arguing that it should be struck out. Mr. Onoja, Esq. of Counsel also referred to the Reply brief filed on 4th June, 2010 to urge that the preliminary objection should be dismissed. Counsel adopted their respective briefs of argument.
The competency of this appeal has been challenged by way of preliminary objection on the grounds that the ruling of 23rd September, 2010 was an interlocutory decision, that all the grounds of appeal are of facts or mixed law and fact. In that case leave of the lower Court or this Court is required to render this appeal competent. The learned silk cited the following authorities in support of argument: Alou vs. Ngene (2007) 17 NWLR (Pt.1062) 163; Kida vs. Ogunmola (2006) 6 SC 147; Lori vs. Akukalia (1998) 12 NWLR (Pt.579) 592 at 610; Abidoye vs. Alawode (2001) 6 NWLR (Pt.709) 463 at 472; Ndayako vs. Mohammed (2005) 6 NWLR (Pt.920) 86 at 97.
Mr. Onoja, Esq. replied that the ruling of the lower Court being final, no leave of Court was required to appeal, citing Omonuwa vs. Oshodin (1985) 2 NWLR (Pt.10) 924; Kotun vs. Olasewere (2010) 1 NWLR (Pt.1175) 411 at 429 and Section 242 of the Constitution of the Federal Republic of Nigeria, 1999 as altered. Learned Counsel urged that the objection should be dismissed.
My humble view is that the word "interlocutory" simply means "(of an order, judgment, appeal, etc) interim or temporary; not constituting a final resolution of the whole controversy."
The ruling of 23rd September, 2012 was the final outcome of the lower Court's decision on points of law regarding the case as a whole. The lower Court after the ruling lacked the competence or jurisdiction to re-open the case after pronouncing on the merit of the application.
"A final judgment is one which decides the rights of parties. In other words it is a decision on the merits of the case where the matter is assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the Courts by the legal combatants."
Again in Clement C. Ebokam vs. Ekwenibe & Sons Trading Company Ltd. (1999) 7 SCNJ 77, Kalgo, JSC held at page 87 that:
"...Where the decisions of the Court under consideration clearly and wholly disposes of all the rights of the parties in the case, that decision is final. But where the decision only disposes of an issue or issues in the case, leaving the parties to go back to claim other rights in the Court, then that decision is interlocutory. And in order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order."
Thus, having dismissed the appellant's application to set aside the judgment of 6th March, 2006 as lacking in merit, the learned trial Judge had completely, like Pontus Pilate, washed his hands from the case except to entertain perhaps, applications for cost, or stay of execution, etc. The ruling must be treated as final. Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 as altered reads as follows:
"241(1) An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance."
Hon. Justice L.H. Gummi, OFR, Chief Judge of the High Court of the Federal Capital Territory, Abuja was sitting at first instance when his Lordship delivered the ruling of 23rd September, 2010 hence the appellant does not require leave to appeal to this Court. The preliminary objection lacks merit and is dismissed.
I shall now consider the main appeal. The issues for determination are set out in the Appellant's Amended Brief filed on 20th May, 2013 but deemed properly filed on 2nd October, 2013 and adopted on 15th January, 2014 as follows:
"1. Whether the learned trial Chief Judge was right to distinguish the decision of the Supreme Court in the case of Kida vs. Ogunmola (2006) 6 SC 147 as not being applicable to the facts of the instant case. (Distilled from ground 2 of the Grounds of Appeal).
2. Whether the learned trial Chief Judge was right in the circumstances to hold from the available evidence, that the Appellant was properly served (Distilled from grounds 3, 4 and 5 of the Grounds of Appeal).
3. Whether the judgment ought to have been set aside on grounds that it was obtained by fraud and that the judgment enforced an illegal agreement (Distilled from grounds 1, 6 and 7 of the Grounds of Appeal).
4. Whether the Ruling delivered on 23rd September, 2010 is a nullity having regards to its delivery almost one year after conclusion of final addresses (Distilled from ground 8 of the Grounds of Appeal)."
The respondent distilled the following issues for determination in the Amended Brief:
"1. Whether having regards to the evidence on record before the Court and the decision of the Supreme Court in the case of Kida vs. Ogunmola (2006) 6 SC 147, the learned trial Chief Judge was right in holding that the Appellant was properly served with the originating process? (Grounds 2, 3, 4 and 5).
2. Whether the judgment ought to have been set aside on grounds that it was obtained by fraud and that the judgment enforced an illegal agreement? (Grounds 1, 6 and 7).
3. Whether the ruling delivered on the 23rd September, 2010 is a nullity having regards to its delivery almost one year after conclusion of final addresses? (Ground 8)."
The following issues are distilled in the Cross-appellant's brief filed on 29th February, 2012:
"1. Whether the trial Court was right to have held that the motion on Notice dated 20th February, 2007 purportedly prepared by a legal practitioner but signed by an unknown person, was a competent process? (Ground 1).
2. Whether in view of the provisions of Order 1 rule 2(b) of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004, the Motion on Notice dated 20th February, 2007 was a proper mode of seeking to set aside the judgment of the trial Court delivered on the 6th of March, 2006 on the ground of fraud? (Ground 2)."
Barrister Onoja, Esq. who settled the Cross-respondent's brief on 4th June, 2012 with a deeming order of 2nd October, 2012 distilled the following issue for determination:
"Whether the learned trial Judge was right to have dismissed the preliminary objection to the competence of the motion on Notice dated 20th February, 2007 in the circumstances."
I have read the ruling of the lower Court and considered the issues formulated by the learned Counsel to the appellant in main or substantive appeal as well as in the cross-appeal. I am of the humble view that the determination of issues 1 and 2 in the appellant's brief and issues 1 and 2 in the Cross-appeal, considered together will determine the fate of the substantive appeal and Cross-appeal. The determination of other issues in the appeal and cross-appeal will become academic.
APPELLANT'S ISSUES 1 AND 2:
The argument is that at the time of filing the ex-parte application seeking leave to prosecute the claims in the lower Court under the Undefended List Procedure, the claimant was aware that the appellant was not living at No.189, Off R.B. Dikko Road, Asokoro, Abuja but abroad. His Lordship ought not to have granted leave that the processes should be served by substituted means. Learned Counsel referred to paragraph 5(r) of the affidavit in support of the ex-parte application sworn to by Senator Kura Mohammed on 23rd December, 2005 read together with the findings of the learned Chief Judge at page 115 Vol.2 of the printed record, citing Kida vs. Ogunmola (2006) 6 SC 147.
Counsel further contended that a Certificate and affidavit of service are rebuttable prima facie evidence of service of the processes, citing Order 11 rule 28 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004; Kennedy vs. INEC (2009) 1 NWLR (Pt. 1123) 614 at 639; Orija vs. Akogun (2009) 10 NWLR (Pt. 1150) 437; Omoniyi vs. Alabi (2004) 6 NWLR (Pt. 870) 551. Learned Counsel traced the importance of service of the processes with reference to Abubakar vs. Yar'adua (2008) 4 NWLR (Pt. 1078) 468 at 512; Okoye vs. Centre Point Merchant Banks Ltd. (2008) 15 NWLR (Pt. 1110) 335 at 357 and Babale vs. Eze (2011) 11 NWLR (Pt. 1257) 48 at 123. Counsel argued that if the learned Chief Judge had properly evaluated the oral and documentary evidence, it could be seen that there was no evidence to show the address at which the processes were delivered.
Learned Counsel argued that issues 1, and 2 be determined in favour of the appellant.
ISSUE 3 AND 4:
It was further contended that the learned Chief Judge heard oral and documentary evidence and on 30th September, 2009 adjourned to 29th October, 2009 for ruling. But that was not to be. The ruling was delivered on 23rd October, 2010 contrary to the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered: First Bank vs. Adepetu & Co. (2009) 11 NWLR (Pt. 1151) 156and the unreported decision of this Court in Alh. Ndalile & Ors. vs. Etsu Nupe & Ors. (CA/A/178/2003) delivered on 16th day of June, 2010.
Besides, the learned Chief Judge had sufficient evidence to have found that the agreement (Exhibit "A") upon which the respondent founded his cause of action was a forgery. Moreover, the cause of action was illegal, constituting a contravention of Section 10 of the Corrupt Practices and Other Related Offences Act, 2000, and against public policy. That once fraud is established, it vitiates proceedings, citing Tor Tiv vs. Wombo (1996) 9 NWLR (Pt. 471) 161 at 173; Vulcan Gas Ltd. vs. G. F. Industries (2001) 7 NWLR (Pt.--) 719. The failure to resolve the issue led to a miscarriage of justice, argued learned Counsel, citing, Egharevba vs. Osage (2009) 18 NWLR (Pt. 1173) 299; F.M.H. vs. C.S.A. Ltd. (2009) 9 NWLR (Pt. 1145) 193 and Kolawole vs. Folusha (2009) 8 NWLR (Pt. 1143) 338.
Learned Counsel also drew the Court's attention to the oral and documentary evidence adduced at the trial and series of alterations or interlineations in the documentary exhibits. Counsel submitted that the appellant could not have appended his signature to Exhibit "A" while he was in London. Relying on Ekwunife vs. Wayne W/A Ltd. (1989) 5 NWLR (Pt. 722) -page not cited -learned Counsel urged this Court to hold that the agreement was vitiated by illegality.
On the whole, learned Counsel urged that the appeal should be allowed.
RESPONDENT: ISSUES 1 AND 2:
The learned SAN contended that the facts in Kida vs. Ogunmola (supra) were not the same as those under consideration. Authorities cited by Counsel should be tailored to the facts under consideration, citing CBN vs. Adedeji (2004) 13 NWLR (Pt. 890) 226 at 242; Adegoke Motors Ltd. vs. Adesanya (1989) 3 NWLR (Pt. 109) 250. The learned silk referred to paragraphs 3, 5(r) and 11(a)-(e) of the affidavit in support of the ex-parte application seeking leave to place the writ under the Undefended List Procedure and for substituted service of the processes together with the affidavit deposed to by Alhaji Bashir Garba Mohammed in support of the motion to set aside the ruling. Counsel's contention is that the learned Chief Judge rightly distinguished the facts in Kida vs. Ogunmola (supra) as the appellant had a valid place of abode in Nigeria where he could be served processes by substituted means. Besides, the appellant did not deny knowing Musa Ishaya on whom the processes had been served. Citing IBWA vs. Sasegbon (2007) 16 NWLR (Pt. 1059) 195 at 218 and 219, the learned SAN contended that a Certificate of service and affidavit by a bailiff are prima facie evidence of the processes being served on the appellant. The respondent was not under a duty to call rebuttal evidence, citing NEKA B.B.B. MIG Co. Ltd. vs. A.C.B. Ltd. (2004) 2 NWLR (Pt. 858) 521 at 550-551 and Alamieyeseigha vs. F.R.N. (2006) 16 NWLR (Pt. 1004) 1 at 104. The responsibility of proving there was no service of the processes, argued the learned silk, rests with the appellant: Egbagbe vs. Ishaku (2007) 1 JNSC (Pt. 29) 785 at 806; Blue Whales & Co. vs. Monguno (unreported: CA/A/227/2009 of Thursday, 13th May, 2010.
The learned SAN further referred to the fact that in the lower Court, PW1 made no reference to Exhibit "AA" the purported tenancy showing that the appellant was no longer resident at the given address. Besides, Alhaji Umaru Aliyu who made far reaching allegations of forgery against Senator Kura Mohammed suddenly disappeared and could not be cross-examined: Folbod Investment & Ors. vs. Alpha Merchant Bank Ltd. (1996) 10 NWLR (Pt. 478) 334 at 356. Learned silk urged that issues 1 and 2 should be resolved against the appellant.
ISSUES 3 AND 4:
The learned Silk referred to the oral and documentary exhibits, coupled with the findings of the learned Chief Judge to submit that fraud and illegality were not proved, citing Section 135(1) of the Evidence Act, 2011 and Pam vs. Mohammed (2008) 16 NWLR (Pt. 1112) 1 at 92 and Universal Trust Bank Ltd. vs. Fidelia Ozoemena (2007) 3 NWLR (Pt. 1022) 448 at 487 and Ushae vs. C.O.P. (2005) 11 NWLR (Pt. 937) 499 at 531. The learned silk's contention is that the appellant failed to show in what manner the contract between the parties was illegal, citing Section 10(a)(i) and (ii) of the Independent Corrupt Practices and Related Offences Act, 2000 and West Const. Co. Ltd. vs. Batalha (2006) 3 JNSC (Pt. 2) 504 at 523 and Onamade vs. ACB Ltd. (1997) 1 NWLR (Pt. 480) 123 at 137.
On whether the ruling was a nullity it was argued, citing Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and the case of Alhaji Muhammed Aliyu Shaba Ndalile & Ors. vs. Etsu Nupe & Ors. (supra) that the appellant had failed to establish any miscarriage of justice. Counsel urged that I should resolve issues 1 and 2 against the appellant.
On the whole, the learned SAN urged that the substantive appeal should be dismissed.
ISSUES 1 AND 2:
I shall commence the consideration of issues 1 and 2 by reference to the provisions of Order 21 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 which governs Undefended List Procedure. The provisions read as follows:
"1(1) Where an application in Form 1, as in the Appendix is made to issue a writ of summons in respect of a claim to recover a debt or liquidated money demand, supported by an affidavit stating the grounds on which the claim is based, and stating that in the deponent's belief there is no defence to it, the Judge in chambers shall enter the suit for hearing in what shall be called the "Undefended List."
3(1) Where a party served with the writ delivers to a Registrar, within 5 days to the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.
(4) Where a defendant neglects to deliver the notice of defence and an affidavit prescribed by Rule 3(1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit and Judgment given accordingly.
(5) A court may call for hearing or require oral evidence where it feels so compelled at any stage of the proceedings under Rule 4."
Order 21 rule 1(1) of the Rules (supra) postulates that the application for the issuance of a writ of summons in respect of a claim to recover a debt or liquidated money demand, has to be "in Form 1, as in the Appendix.
" A careful examination of Form 1 of the Rules (supra) will reveal that apart from the endorsement of the claims and the address for service of the claimant or his legal representative, paragraph "C" of the notes on the memorandum of appearance provides that: "(C) Address must be within the jurisdiction."
The motion ex-parte seeking leave to prosecute the claims under the Undefended List Procedure and to serve the processes by substituted means on the appellant gave his address as "No. 189 Off, R.B. Dikko Road, Asokoro, Abuja." However, in paragraph 5(r) of the affidavit in support of the ex-parte application it is deposed on oath as follows: "...the Respondent has been out of Nigeria for more than 1 year and even attempts made to contact him abroad has been evading the a (sic) Applicant." This is a material contradiction.
Order 21 of the Rules supra does not specifically mention that upon service of the processes the appellant should enter a memo of appearance. However, since it is provided under Order 21 rule 3(1) of the Rules (supra) that a party served with the writ of summons under the Undefended List Procedure is to deliver to the Registrar, within 5 days to the day fixed for hearing, a notice in writing that he intends to defend the suit, etc, that, in my humble view constitutes the entry of appearance under Order 12 of the Rules (supra), requirement for the relevant provisions reading as follows:
"1(1) A defendant shall within a time limited in the writ or other originating process enter an appearance in the manner prescribed.
(2) A defendant shall enter an appearance by delivering to a Registrar a memorandum of appearance in Form 11, or where leave was obtained before appearance, a notice in Form 12, respectively, as in the Appendix.
2(1) A defendant appearing in person shall state in the memorandum of appearance an address for service which shall be within the jurisdiction.
(2) Where a defendant appears by a legal practitioner, the legal practitioner shall state in the memorandum of appearance his place of business and an address for service which shall be within the jurisdiction and where any legal practitioner is only the agent of another legal practitioner, he shall also insert the name and place of business of the principal legal practitioner.
3(1) Where the memorandum does not contain an address for service, it shall not be accepted.
I use the word "appearance" as, "A coming into Court as a party or interested person, or as a lawyer on behalf of a party or interested persons; esp., a defendant's act of taking part in a law suit, whether by formally participating in it or by an answer, demurrer, or motion, or by taking post judgment steps in the law suit in either the trial Court or an appellate Court." See Blacks Law Dictionary, 9th edition, page 113.
The appellant did not appear in the lower Court to deliver a defence nor to furnish the Registrar with a contrary address for service apart from that provided by the respondent. The question is: in view of the fact that one year before the issuance of the writ of summons under the Undefended List Procedure, the appellant was outside the jurisdiction of the lower Court, should the respondent have been granted leave by the lower Court to take out the writ and serve the processes at No. 189, Off R. B. Dikko Road, Asokoro, Abuja?. I think the answer lies in the provisions of Order 11 rule 5 of the Rules (supra) which read as follows:
"5(1) Where it appears to a Court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the Court may order that service be effected either by:-
(a) Delivery of the document to some adult inmate at the usual or last known place of abode or business of the person to be served.
(c) Advertisement in the Federal Gazette, or in some newspaper circulating within the jurisdiction; or
(d) Notice put up at the principal Court house of, or a place of public resort in the Judicial Division where the respective proceeding is instituted, or at the usual or last known place of abode or of business, of the person to be served; or
(e) E-mail or any other scientific device now known or later developed; and
(f) Courier service or any other means convenient to the Court.
(2) An application to a Court for an Order of substituted service or other service, shall be supported by an affidavit, setting the grounds on which the application is made."
It can be seen that out of the many modes prescribed for service of processes by substituted means, the respondent/cross-appellant resorted to Order 11 rule 5(1)(a) of the Rules (supra). The Court also granted the order prayed for, namely, that "...the processes shall be delivered to some adult inmate at the usual or last known place of abode or business of the person to be served." The word "abode" means "Someone's home" or "...the place where somebody lives": Longman Dictionary of Contemporary English, page 3; Oxford Advanced Learner's Dictionary, 7th edition, page 3. In legal parlance, an "abode" is "A home; a fixed place or residence." Blacks Law Dictionary (supra), page 6.
If the respondent/cross-appellant knew that the "usual or last known place of abode or business" of the appellant for the past one year before the writ of summons was issued was that he was abroad, surely, I am of the candid opinion that paragraph 3 of Senator Kura Mohammed's affidavit that the defendant resides at Plot 189, Off R. B. Dikko Road Asokoro in Abuja within the jurisdiction of this Honourable Court at the time of filing the application for issuance of the writ of summons is not supported by credible evidence. An "adult inmate" upon whom the processes are to be delivered where the Court grants leave that substituted service be effected, should be an adult person living in such a place. He or she is one who lives with others in a dwelling.
It has to be shown that Musa Ishaya on whom the processes were delivered was an adult inmate at Plot 189 Off R.B. Dikko Road, Asokoro, Abuja and that he would be in a position to deliver the processes upon receipt to the appellant. This information or requirement is absent in Form 3. The Certificate of Service, Form 3 merely stated that the appellant was served the processes, "...at his residence," on "Musa Ishaya." Order 11 rules 28 and 31 of the 2004 Rules provides as follows:
"28. Where the service of a document has been effected by a bailiff or other officer of Court, an affidavit of service sworn to, by that bailiff or other officer shall on production, without proof of signature, be prima facie evidence of service.
31. Every Court shall keep a book for recording service or process, in such form as the Chief Judge may direct, in which shall be entered by the officer serving the process, or by the registrar, the names of the plaintiff or complainant and the defendant, the particular court issuing the process, the method, whether personal or otherwise, of the service, and the manner in which the person serving ascertained that he served the process on the right person, and where any process has not been duly served, then the cause of failure shall be stated, and every entry in the book or an office copy of any entry shall be prima facie evidence of the several matters stated in it."
The respondent did not place before the lower Court an affidavit of service sworn to by the bailiff that effected service nor a certificate of service showing, "...the manner in which the person serving ascertained that he served the process on the right person" for "...every entry in the book or an office copy of any entry" to "be prima facie evidence of the several matters stated in it." Without strict compliance with the provisions of Order 11 rules 5(1)-(2), 28 and 31 of the Rules (supra), it cannot be categorically asserted that a certificate of service coupled with an affidavit sworn to by a bailiff or the person that effected service constituted prima facie evidence that the processes were served on the right person.
In Mohammed Mari Kida vs. A.D. Ogunmola (2006) All FWLR (Pt. 327) 402 (2006) 6 SCNJ 165 the suit was instituted at the High Court of Justice, Maiduguri, Bornu State. At time of instituting the suit the claimant gave the appellant's residential address within jurisdiction as No. 4 Ahmadu Bello Close, Damboa Road, GRA, Maiduguri, Borno State. But at that time the appellant had relocated with his family to Ibadan, Oyo State. The claimant applied for leave to serve the writ of summons on the appellant out of jurisdiction and the Court granted leave for that purpose. But the bailiffs effected service by pasting the processes at No. 4A Ahmadu Bello Close, Damboa Road, GRA Maidudguri, Bornu State within jurisdiction. The Supreme Court held at page 411 to page 414 per Musdapher, JSC (as he then was) as follows:
"Now, the appellant applied to issue and serve the writ on the respondent outside the jurisdiction of the Court and yet the appellant was served by substituted means, by pasting the originating processes on the last known abode of the appellant within jurisdiction, when it was manifestly clear that the respondent was no longer resident there or within the jurisdiction of the Court. For a defendant to be legally bound to respond to the order for him to appear in Court to answer a claim of the plaintiff, he must be resident within jurisdiction, see National Bank (Nig.) Ltd. vs. John Akinkunmi Shoyoye and Anor. (1977) 5 SC 181.
Substituted service can only be employed when for any reason, a defendant cannot be served personally with the processes within the jurisdiction of the Court for example when the defendant cannot be traced or when it is known that the defendant is evading service. Also, where at the time of the issuance of the writ, personal service could not in law be effected on a defendant, who is outside the jurisdiction of the Court, substituted service should not be ordered, see Fry vs. Moore (1889) 23 QBD 395. If the defendant is outside the jurisdiction of the Court at the time of the issue of the writ and consequently could not have been personally served in law, not being amenable to that writ, an order for substituted service cannot be made, see Wilding vs. Bean (1981) 2 QB 100.
In the instant case, the respondent was known to be out of jurisdiction, and it is not in dispute that the respondent had moved out of Maiduguri to Ibadan, where he had relocated with his family long before the issue of the writ of summons. It is trite law, that after its issue, a writ of summons or any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires to, that which is claimed against him.
Where service of a process is legally required, the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitae to have the order set aside as a nullity. See Obimonure vs. Erinosho (1966) 1 All NLR 250; Mbadinuju vs. Ezuka (1994) 10 SCNJ 109; Skenconsult (Nig.) Ltd. vs. Ukey (1981) 1 SC 6; Adeigbe vs. Kusimo (1965) NMLR 284.
Service of the originating process has been held to be a condition precedent to the exercise of jurisdiction by the Court out of whose registry the originating process was issued. See N.B.N. Ltd. vs. Guthrie (Nig.) Ltd. (1993) 4 SCNJ 1 at 17.
The validity of the issue of the writ and the service of the Court on the respondent was raised before the trial Judge and the learned trial Judge in his ruling on this issue...
Thus, the trial Court disregarded the complaint of the respondent on the validity of the issue and service on him of the processes. The Court of Appeal rightly in my view, held that the trial Judge acted erroneously to have discountenanced the argument of the Counsel for the respondent on this issue. In my view, the validity of the originating processes in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.
However, of more fundamental nature, the respondent who was outside jurisdiction, claimed to be unaware of the suit as he was not served with the originating process outside the jurisdiction of the Borno State High Court as properly ordered by the Court. He was allegedly served by substituted means. As shown above, that was no service.
As mentioned before in this judgment, service of process on a party to a proceeding is crucial and fundamental. See Auto Import Export vs. Adebayo (2002) 18 NWLR (Pt.799) 554, (2003) FWLR (Pt.140) 1686; S.G.B. Ltd. vs. Adewunmi (2003) FWLR (Pt.158) 1181, (2003) 10 NWLR (Pt.829) 526; Mbadinuju vs. Ezuka (1994) 8 NWLR (Pt.364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of jurisdiction was not fulfilled. That being so, the trial Court, in the instant case has no jurisdiction to hear the appellant's application and enter judgment against the respondent in default of filing statement of defence. The proceedings as far as it affected the respondent on the 24/12/1996 was a nullity. See also Scott-Emuakpor vs. Ukavbe (1975) 12 SC 41. See UBN Plc vs. Okonkwo (2004) 5 NWLR (Pt. 867) 445.
Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of Counsel since where there is no service, there is no valid trial. It was manifest and common ground that the respondent was known to be out of jurisdiction..."
Courts exercise jurisdiction over persons who are within its territorial jurisdiction: Nwabueze vs. Obi-Okoye (1988) 10-11 SCNJ 60 at 73; Onyema vs. Oputa (1987) 18 NSCC (Pt. 2) 900; Ndaeyo vs. Ogunnaya (1977) 1 SC 11. Since the respondent was fully aware that before the issuance of the writ the appellant's abode or residence for the past one year was no longer at No.189, Off R.B. Dikko Road, Asokoro, Abuja within jurisdiction, substituted service of the processes should not have been ordered by the learned trial Judge. In United Nigeria Press Ltd. & Anor. vs. Timothy Olu Adebanjo (1969) 1 All NLR (Vol.1) 431, Fatayi-Williams, JSC (as he then was) explained the purport of service of process as follows:
"In this application made exparte, the appellant who is the respondent in this appeal is applying for an order that all the papers pertaining to an earlier application for the release to him of the judgment debt already paid into Court by the first appellant and all other processes issued in the matter be served on both appellants by pasting them on the door of their business premises at No. 13, City Way, Yaba.
The applicant swore to an affidavit in support of the application the relevant particulars of which are as follows: Although the last known address of the appellants is No. 13 City Way, Yaba, neither of them was found at the said address when the applicant tried on several occasions to serve them with the motion papers pertaining to his earlier application for the release of the said judgment debt. As No. 13, City Way, Yaba, is, according to the "Companies Registry" in Lagos, the last registered address of the first appellant's office, the motion papers for the release of the money, if pasted on the door of this last registered address, might get to the knowledge or hearing of the appellants. The affidavit, significantly enough, was silent about the last known address of Mr. Smart Ebbi, the second appellant.
In our opinion, the object of all types of service of processes, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of, and able to resist, if he may, that which is sought against him. Therefore, since the primary consideration in an application for substituted service is as to how the matter can be best brought to the attention of the other party concerned, the Court must be satisfied that the mode of service proposed would probably, after all practicable means of effecting personal service have proved abortive, give him notice of the process concerned.
In the present application all that is disclosed in the affidavit in support is that the appellants could not be found at their registered address and that if the motion papers are pasted on the door of this address notice of them might get to the knowledge of the appellants."
The proceedings in the lower Court were commenced with an invalid writ of summons hence the delivery of the processes to Musa Ishaya was a nullity. The trial Court lacked the jurisdiction to hear the substantive suit and to enter judgment against the appellant. When a writ and service are nullities, the Court lacks the jurisdiction to make any competent pronouncements. This is because jurisdiction must be vested in a Court before the rights of a party can be determined. See Kalu vs. Odili (1992) 6 SCNJ (Pt. 1) 76 at 90. I resolve issues 1 and 2 in the favour of the appellant. I resolve issues 1 and 2 in favour of the appellant by declaring the Writ of Summons and the service of the processes as null and void.
ISSUES 3 AND 4:
"294(1) Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of subsection (1) of this section, the person presiding at the sitting of the Court shall send a report of the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit."
The appellant has not shown how he suffered a miscarriage of justice though the delivery of the ruling was in contravention of Section 294(1) of the Constitution (supra). The miscarriage of justice which the appellant established was not in the delivery of the ruling outside the ninety days period prescribed by the Constitution but is in issuing a Writ and serving the processes by way of substituted service within jurisdiction when at the time of issuance and service of the processes the appellant was outside the jurisdiction of the Court.
Furthermore, the appellant has not been able to establish that the contract was illegal. In Osborn's Concise Law Dictionary, 9th edition, edited by Sheila Bone, page 198, the learned author defines the word "illegal" as "An act which the law forbids. It can be contrasted with acts which the law will disregard, such as a void (q.v.) contract." The author then describes an "illegal contract" as "A contract that is prohibited by statute (e.g. under the Gaming Act, 1845) or at Common Law as being contrary to public policy (such as agreements in restraint of marriage). It is void (q.v.) and neither party can recover money paid under it."
Section 10(a)(i) and (ii) of the Independent Corrupt Practices and Other Related Offences Act, 2000 as amended reads as follows:
"10 Any person who:-
(a) asks for, receives or obtains property or benefits of any kind for himself or any other person; or agrees or attempts to receive or obtain any property or benefit of any kind for himself or any person; on account of:-
(i) anything already done or omitted to be done, or any favour or disfavour already shown to any person, by a public officer in the discharge of his official duties or in relation to any matter connected with the functions, affairs or business of a Government department, public body or other organization or institution in which the public officer is serving as such; or
(ii) anything to be afterwards done or omitted, or any favour, disfavour to be afterwards shown to any person, by a public officer in the discharge of his official duties or in relation to any such matter as aforesaid, is guilty of an offence of official corruption and shall on conviction be liable to imprisonment for seven (7) years."
I cannot see how the provisions of the above statute can by any stretch of judicial interpretation be construed to apply to Exhibit "A" which is the foundation of the relationship between the appellant and the respondent to be an "illegal contract". The Independent Corrupt Practices and Other Related Offences Act No. 5 of 2000 define in Section 2 a "Public Officer" to mean, "a person employed or engaged in any capacity in the public service of the Federation..."etc. In paragraph 5 of the affidavit in support of the exparte application sworn to on 23rd December, 2005 the deponent described himself as a "Public Affairs Consultant". See also paragraph 5 of the affidavit in support of the substantive motion on notice sworn to by the deponent on the same 23rd December, 2005. There is nothing from all the processes filed in the Court below by the appellant to the contrary. I therefore hold that the provisions of Section 10(a)(i) and (ii) of the Independent Corrupt Practices and Other Related Offences Act No. 5 of 2000 has no application to the facts of this appeal.
In Langston vs. Hughes (1813) 1 M&S 593 or 12 Digest 270 at 2214, Ellenborough, C.J., held that: "What is done in contravention of the provisions of an Act of Parliament cannot be made the subject-matter of an action" cited in Bostel Bros. Ltd. vs. Hurlock (1948) 2 All E.R. 312 at 313.
My humble opinion is that the appellant has not established the illegality of the contract. See Alao vs. ACB (1998) 2 SCNJ 17; Sodipo vs. Lemminkainem OY (No. 2) (1986) 1 NWLR (Pt. 15) 220 and Chief Onyuike III vs. Okeke (1976) 1 All NLR (Pt. 1) 181 in addition to the authorities cited by the learned Counsel to the respondent.
Accordingly, I determine issues 3 and 4 against the appellant. However this determination of issues 3 and 4 against the appellant is a pyrrhic victory as this does not affect my findings in issues 1 and 2. Accordingly, the appeal is allowed. The judgment of 6th March, 2006 and the ruling of 23rd September, 2010 are hereby set aside. Both are struck out with no order as to costs.
Objection was taken by the learned Counsel to the Cross-appellant against the hearing of the motion to set aside the judgment on the basis that the motion was neither signed by the appellant/cross-respondent or his learned Counsel within the contemplation of Section 2(1) of the Legal Practitioners Act, 2004. Secondly, that the Cross-respondent should not have invoked the provisions of Order 1 rule 1 and 2 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 to apply to set aside the judgment on the grounds of fraud by motion. The argument is that a judgment can only be set aside on grounds of fraud by a Writ of Summons.
Having heard argument the learned trial Judge dismissed the two objections on 23rd September, 2010, hence the cross-appeal filed on 21st February, 2012.
The learned Senior Advocate of Nigeria referred in the Cross-appellant's brief at pages 52-73 of the printed record Vol.1 which contains the motion to set aside the judgment. The learned silk referred in particular to page 54 of the printed record to the following entries:
F: Aliyu Umar, Esq.,
3rd Floor, City Plaza,
Plot 596 Ahmadu Bello Way,
Garki II, Abuja."
The learned silk cited Peak Merchant Bank Ltd. vs. NDIC (2011) 12 NWLR (Pt. 1261) 253; Onward Enterprises Ltd. vs. Olam International Ltd. (2010) All FWLR (Pt. 531) 1503 at 1512 and Sarai vs. Haruna (2008) 23 WRN 130 in support of his argument. Counsel further argued that an incompetent process remains without legal value: Manson vs. Halliburton (2007) 2 NWLR (Pt.1018) 211. The Court was urged to resolve issue one in favour of the Cross-appellant.
On issue two the learned silk contended, citing N.S. Eng. Co. Ltd. vs. Ezenduka (2002) 1 NWLR (Pt.748) 469 at 490 and 491 that to set aside a judgment obtained by fraud requires a party to file a fresh action, not a motion, or an appeal.
On the whole, learned Counsel urged that both issues should be resolved in favour of the Cross-appellant. The cross-appeal should be allowed.
Learned Counsel representing the Cross-respondent submitted that the authorities cited by the learned silk dealt with whether Notices of Appeal had been properly signed in accordance with the relevant provisions of the Court of Appeal Rules. In the instant case, there is no requirement of law that a motion on Notice must be signed either by Counsel or the applicant. Learned Counsel cited Order 7 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 which deals with applications made to the Court, the relevant conditions being whether it is supported with an affidavit setting forth the grounds on which the party moving intends to rely, etc. In any case, it was further contended that the mistake of Counsel should not be visited on his client, citing Akinpelu vs. Adegbore (2008) 10 NWLR (Pt. 1096) 531 at 557.
Learned Counsel's further argument is that the fundamental issue before the lower Court involved the validity of the Writ and service of the processes on the Cross-respondent which involved the Court's jurisdiction to entertain the suit, citing Petrojessica Enterprises Ltd. vs. Leventis Tech. Ltd. (1992) 5 NWLR (Pt. 244) 675 recently followed in Ogembe vs. Usman (2011) 17 NWLR (Pt. 1277) 638 and UTC Nig. Ltd. vs. Pamotei (1989) 2 NWLR (Pt. 103) 244. Counsel urged that issue one be resolved against the Cross-appellant.
The response on issue two is that a Court of Justice has the inherent jurisdiction to set aside a judgment obtained by fraud whether by motion or by filing a fresh action; that the procedure is elective, citing Tor Tiv vs. Wombo (1996) 9 NWLR (Pt. 471) 161 at 173. Moreover, the particular form of commencing an action is irrelevant so long as the interest of justice is served: Wilson vs. Okeke (2011) 3 NWLR (Pt.1235) 456. Learned Counsel urged that issue two should be resolved against the Cross-appellant, and the Cross-appeal should be dismissed.
ISSUES ONE AND TWO:
I shall take the two issues together. Whoever signed the motion filed on 20th February, 2007 to set aside the judgment of 6th March, 2006 did not state his name or status but merely appended a signature. It is not possible to decipher whether he is a legal practitioner, clerk in Chambers or a quack. Besides, the motion was signed "F:" (meaning "For" Aliyu Umar, Esq.
A document or contract signed "For and on behalf" etc, connotes agency. However, in certain situations, this is rebuttable, where for example, the person signs in his own name without making it clear the existence of a principal. See Brandt & Co. vs. Morris & Co. (1916-17) All E.R. Rep. 925. In this case since there is no indication as to who signed the motion of 20th February, 2007 for Aliyu Umar, Esq., the motion was incompetent. I refer to the authorities cited by the learned silk in argument. See also Okafor vs. Nweke (2007) 3 SCNJ 185 at 191. I hold that there was no valid motion to set aside the default judgment of 6th March 2006. I resolve issue one in the cross-appeal in favour of the cross-appellant.
"...Fraud is an extrinsic, collateral act, which vitiates the most solemn proceedings of Courts of Justice. LORD COKE says, it avoids all judicial acts, ecclesiastical or temporal."
Again in Fabunmi vs. Agbe (1985) 1 NWLR (Pt. 2) 299, Obaseki, JSC held at page 319 paragraph "C" that:
Where fraud is alleged in civil or criminal proceedings, it is analogous to imputation of a crime which has to be proved beyond reasonable doubt. See Section 135(1)(2) and (3) of the Evidence Act, 2011.
In Flower vs. LLoyd (1878) 10 Ch. D. 327, fresh action was instituted to set aside a former judgment between the same parties on the grounds that it had been obtained by fraud. Bacon, V.C., who tried the case, found the allegation proved, and made a decree in favour of the plaintiff. But the Court of Appeal found no evidence of fraud, allowed the appeal, and dismissed the action, per Baggallay, L.J., who delivered the judgment of the Court. James, L.J., however made the following observation at page 333-334 of the judgment:
"I have to add some observations which have been seen by the Lord Justice Thesiger and in which he concurs. We have thought it right and due to the Defendants to go through the allegations made against them; and their Counsel, in fact, scarcely asked for any judgment except one based on their acquittal of the fraud charged against them. But we must not forget that there is a very grave general question of far more importance than the question between the parties to these suits. Assuming all the alleged falsehood and fraud to have been substantiated, is such a suit as the present sustainable? That question would require very grave consideration indeed before it is answered in the affirmative. Where is litigation to end if a judgment obtained in an action fought out adversely between two litigants sui juris and at arm's length could be set aside by a fresh action on the ground that perjury had been committed in the first action, or that false answers had been given to interrogatories, or a misleading production of documents, or of a machine, or of a process had been given? There are hundreds of actions tried every year in which the evidence is irreconcilably conflicting, and must be on one side or other willfully and corruptly perjured. In this case, if the plaintiffs had sustained on this appeal the judgment in their favour, the present Defendants, in their turn, might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and subordination of perjury; and so the parties might go on alternatively ad infinitum. There is no distinction in principle between the old Common Law action and the old Chancery suit, and the Court ought to pause long before it establishes a precedent which would or might make in numberless cases judgments supposed to be final only the commencement of a new series of actions. Perjuries, falsehoods, frauds, when detected must be punished and punished severely; but, in their desire to prevent parties litigant from obtaining any benefit from such foul means, the Court must not forget the evils which may arise from opening such new sources of litigation, amongst such evils not the least being that it would be certain to multiply indefinitely the mass of those very perjuries, falsehoods, and frauds."
Baggallay, L.J., however reserved his opinion on whether a fresh action can be brought to set aside a judgment on the grounds of fraud. His Lordship held at page 334 as follows:
"With reference to the observations which have just been made by the Lord Justice, I only which to state that, whilst I am fully sensible of the evils and inconveniences which must arise from re-opening what are apparently final judgments between litigant parties, I desire to reserve for myself an opportunity of fully considering the question how, having regard to general principles and authority, it will be proper to deal with cases, if and when any such shall arise, in which it shall be clearly proved that a judgment has been obtained by the fraud of one of the parties, which judgment, but for such fraud, would have been in favour of the other party. I should much regret to feel myself compelled to hold that the Court had no power to deprive the successful but fraudulent party of the advantages to be derived from what he had so obtained by fraud."
Thus the fore-most decision of the English Court of Appeal did not totally deprecate the mode of commencing a fresh action to set aside a judgment obtained by fraud. But James L.J., questioned whether such an action was maintainable while Baggallay, L.J., left the matter to be argued in the future. However, this controversy was finally settled by the House of Lords in Jonesco. vs. Beard (1930) All E.R Rep. 483.In that case the action to set aside a judgment on grounds of fraud was commenced and tried by Maugham, J., but dismissed. In the Court of Appeal the plaintiff relied on affidavit evidence to establish fraud. The appeal was allowed and a new trial ordered. The defendant appealed to the House of Lords, Lord Buckmaster delivered the opinion of the House holding at page 484 paragraph "C" to page 485 paragraph "A" as follows:
"The appellant in this appeal was the defendant in an action brought against him by the respondent claiming (a) a share in eight named racehorses either as a joint owner with the plaintiff to the extent of one'97quarter or as a partner: (b) a sum of 240, the price of two horses known as Why Worry and Zette, alleged to have been sold and delivered by him to the appellant in October, 1927. The questions at issue were purely questions of fact and the learned Judge who tried the action having expressed his disbelief in the respondent'91s story, dismissed the action with costs. Judgment to that effect, dated July 12, 1928, was duly drawn up, passed and entered. On August 23, 1928, the respondent served a notice of appeal asking (a) for a new trial, but without specifying any grounds, or, alternatively, (b) that judgment be entered for him in the action. The Court of Appeal have ordered a new trial and from their judgment this appeal has been brought.
On the hearing before the Court of Appeal affidavit evidence was filed in support of the appeal and answered. It is on these affidavits that the new trial was ordered. In part they consisted of statements as to evidence not forthcoming at the trial and in part of allegations of fraud. The former did not form the foundation of the judgment of the Court of Appeal, and, indeed, they could not have done so for there was no sufficient explanation of why the evidence had not been available at the trial and why no application for adjournment had been made. These statements do not merit examination and may be disregarded. It is the charge of fraud that is the sole reason supporting the judgment now under appeal. Viewed simply as a matter of procedure the course taken was unusual and irregular. It has long been the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires. In Flower vs. Lloyd (1) the Court of Appeal, consisting of Jessel, M.R., James and Baggallay, L.JJ., held there was not jurisdiction in the Court of Appeal to entertain a similar application, saying that you cannot go to your adversary and say: "You have obtained the judgment by fraud and I will have a re-hearing, until that fraud is established." Flower vs. Lloyd (1) (10 Ch.D. at page 333), Cole vs. Langford (2), and Baker vs. Wadsucorth (3) show that the right procedure for that purpose is by action. That, however, there is jurisdiction in special cases to set aside a judgment for fraud on a motion for a new trial may be accepted. Hip Foong Hong vs. Neotia & Co. (4) is one such case, but in the latter it should be remembered that this case had come up to the Privy Council on this procedure and the Board would naturally be unwilling to defeat a case at its last stage on such a ground. If, however, for any rare and special reasons, departure from the established practice is permitted, the necessity for stating the particulars of the fraud and the burden of proof is no whit abated, and all the strict rules of evidence apply. The affidavits used must, therefore, be examined as on final trial, every particle of hearsay evidence and reference to documents, not produced, must be excluded, and it must be kept constantly in mind that the rules which permit on interlocutory proceedings hearsay evidence, where the exact source of the information is afforded, have no more application than they would possess were the deponent a witness in the box speaking at the trial. I cannot help thinking that it is because these considerations were not properly placed before and impressed upon the Court of Appeal that they have pronounced a judgment which, in spite of the skill of Counsel for the respondent, I can find no ground to support."
Thus the controversy has been settled that the established practice for applying to set aside a judgment obtained by fraud under English jurisprudence is not by affidavit evidence, but by a fresh action. That to invoke a motion supported by affidavit or invoke the powers of the Court of Appeal is a departure from the established practice.
The Supreme Court of Nigeria has also held the same views in a plethora of authorities: Olufunmise vs. Falana (1990) 4 SCNJ 142 at 157; WAA Ltd vs. Ajanaku (1971) 1 NWLR 194; Folami vs. Cole (1990) 4 SCNJ 18; Nwobodo vs. Onoh (1984) SCNLR 1, Talabi vs. Adeseye (1972) 8-9 SC 20 at 40. See also the authority cited by the learned silk appearing for the cross-appellant. All Courts subordinate the Supreme Court are, by the doctrine of stare decisis and judicial precedent, bound to follow the decisions of the Supreme Court. Furthermore, as the process for commencing proceedings prescribed under Order 2(1)(b) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 to set aside the judgment based on an allegation of fraud was not followed by the cross-respondent, it is hereby declared null and void. In other words, the motion on notice praying to set aside the judgment delivered on 6th day of March, 2006 was incompetent. See Quo Vadis Hotels Ltd. vs. Commissioner of Lands, Mid-Western State of Nigeria vs. Chief Francis Edo-Osagie (1973) 1 All NLR (Pt. 1) 715.
Where the procedure adopted to ventilate grievances is wrong, the processes ought to be struck out: Odiase & Anor. vs. Agho & Ors. (1972) 1 All NLR (Pt. 1) 170 at 177.
Accordingly, the cross-appeal is allowed. The motion to set aside the judgment delivered on 6th March, 2006 is struck out. I make no order as to costs.
AMIRU SANUSI, J.C.A.:
The judgment prepared by Tur, JCA just delivered was made available to me before now. I agree entirely with his reasoning and conclusion that the appeal is meritorious and I too accordingly allow it.
I abide by the consequential orders made including one on costs.
ABUBAKAR DATTI YAHAYA, J.C.A.:
I have had the benefit of reading in draft, the judgment of my learned brother TUR JCA, just delivered. I agree with the reasons and conclusions reached therein.
Issue of service of originating process is a fundamental jurisdictional issue. Every court therefore has a duty, to ensure that processes are served properly, before it can proceed to adjudicate on a matter. When service of process is in issue, the court should demand for the proof of service and examine same, to ascertain whether there has been proper service or not. The affidavit of service is usually the document the bailiff produces, to prove service. But even at that, an affidavit of service is not a conclusive proof of service of the process it professed to have served. It is only a prima facie evidence, a rebuttable presumption, that the process had been served. Order 11 Rule 28 of the High Court of the Federal Capital Territory (Civil procedure) Rules 2004 is clear on this. It states
"Where the service of a document has been effected by a bailiff or other officer of Court, an affidavit of service sworn to by that bailiff or other officer shall on production without proof of signature, be prima facie evidence of service."
On the strength of this, the learned trial Chief Judge was wrong when he held that
"...It is my finding that the certificate of service filed to evidence service is sufficient evidence of the court were served by the bailiff of the Court on the applicant by delivery of same to Musa Ishaya."
If the learned trial Chief Judge had examined the certificate of service of the originating processes, he would have seen that the service was effected on one "Musa Ishaya". There is nothing in the certificate of service to show that 'Musa Ishaya' was an adult inmate of plot 189, Off R. B Dikko Road Asokoro, Abuja, as required by the Order for substituted service. There is therefore clearly, no compliance with the Order for substituted service and so there was no service of the processes on the appellant. That alone, ought to have dictated setting aside the purported service and the default judgment entered.
On the Writ of Summons, it is clear from the available evidence at the lower court, and the findings of the trial Chief Judge, that the appellant as the defendant, was resident in London, outside the jurisdiction of the Court, as at the time the Writ of Summons was issued. The case of MOHAMMED KIDA vs. A. D OGUNMOLA (2006) ALL FWLR (Pt. 327) 402, which is similar to the instant appeal and in which principles of law enunciated are very much applicable to this instant appeal, held, per Musdapher JSC (as he then was), at page 411 that
"...For a defendant to be legally bound to respond to the order for him to appeal in Court to answer a claim of the plaintiff, he must be resident within jurisdiction. See NATIONAL BANK (NIG) LTD VS. JOHN AKINWUMI SHOYOYE & ANR. (1977) 5 S.C 181...where at the time of the issuance of the Writ, personal service could not in law be effected on a defendant, who is outside the jurisdiction of the Court, substituted service should not be ordered, see Fry Vs. Moore (1889) 23 Q.B.D 395. If the defendant is outside the jurisdiction of the Court at the time of the issue of the Writ and consequently could not have been personally served in law, not being amenable to that Writ, an order for substituted service cannot be made. See Wilding Vs. Bean (1981) 2 QB 100..... In my view, the validity of the originating process in a proceeding before a Court is fundamental, as the competence of the proceedings is a condition sine qua non to the legitimacy of any suit. Therefore the failure to commence proceedings with a valid Writ of Summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time...."
Since the appellant was resident in London, outside the jurisdiction of the court at the time the Writ of Summons was issued, he could not be served personally with it. Once he could not be personally served, then the Writ of Summons could not be issued. Its issue was therefore invalid. The purported service of same was therefore invalid. There was nothing valid to be served. Even if the Writ of Summons had been validly issued, its purported substituted service was invalid. As a result, the trial court had no jurisdiction to adjudicate on it, let alone to deliver the judgment on it. The appeal therefore has merit and it is allowed, I set aside the purported service by substituted means, of the Writ of Summons on the appellant. I set aside the judgment entered on the Undefended List on the 6th of March 2006, as the trial court had no jurisdiction to do so, the Writ of Summons not having been validly served on the appellant to enable him defend same. Furthermore, the issue of the Writ of Summons itself was invalid and so it is set aside.
The Cross-Appeal has been allowed. This is because the Motion to set aside the judgment, was not signed by a known legal practitioner. This may well be.
It is not the function of the court to embark on an academic exercise. Here, the Cross-Appeal had become spent since the main appeal has succeeded and the Writ of summons, together with its purported service, have been declared null and void and therefore of no effect. They have been set aside. So the consideration of the Cross-Appeal was therefore not even necessary. But since it has been considered and allowed, it still does not add any value to the fortunes of the Cross-Appeal. It should be noted that the cross-appeal was not a preliminary Objection to the hearing of the appeal, based on the fact that the Motion to set aside the default judgment was invalid. The Main appeal has been heard and determined. The Cross-Appeal which came later in time, has no "practical utilitarian value" to the Cross-Appellant. It is a mere academic exercise. See NKWOCHA VS. ANAMBRA STATE (1984) 1 SCNLR 634 and PLATEAU STATE VS. A.G FEDERATION (2006) 3 NWLR (Pt. 967) referred to in SHETTIMA VS. GONI (2011) 18 NWLR (Pt. 1279) 414. The Cross-Appeal is but a phyrric victory.
I abide by the orders as to costs.