MAIN JUDGMENT

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the decision of Honourable Justice Babs-Kuewunmi J. of the Federal High Court of Nigeria, Oshogbo Judicial division, delivered on 12th July 2012 wherein the learned judge struck out the Originating Summons taken out by the Appellant on the ground that same was not properly served on the Respondents. For the purpose of clarity, the portion of the Judgment of the court appealed against as contained on page 25 of the Record of Appeal is reproduced verbatim as follows:-

"This suit is properly commenced (sic) under the Originating Summons procedure. This leg of objection fails and I so hold.

On ground 4, I have taken a careful look at the record of service in this case. It shows that the originating processes in this suit i.e. the Originating Summons were served on one T.O. Abiola (Accountant) at Adediran Steel and Wire Industry, Ilesha on 17/2/2007 by the bailiff of this court.

He obviously received it on behalf of the two Defendants.

The Defendants in this case are Prince Michael Adewale and Julius Adegoke Adediran.

The position of the law is that originating processes are to be served personally on parties to a case and except in cases where the court orders substituted service, parties on record are to be served personally with originating processes. It is noteworthy to mention here that the Defendants were sued in personal capacities and service on them is fundamental to the trial of this case as it confers competence and jurisdiction on the court seized of the case.
See NTEKIM V Oron Local Govt. (2010) 16 NWLR (pt. 1219) 209 at 232; Adamu V Akukalia (supra) page 324.

Although Counsel to the Defendants entered an appearance and had taken part in this proceedings to date, it does not in my humble view constitute a waiver to the issue of proper service of the process "properly" as required by law. See F.B.N V T.S.A. Industries Ltd (2010) 15 NWLR (pt 1216) 247 at 309.

Where a Plaintiff is experiencing difficulties in serving originating processes on a Defendant, order 6 Rule 5 of the Federal High Court Civil Procedure Rules 2009 has made adequate provisions to take care of such but service on a non-party cannot be said to be good service in law.
 

In the circumstance, the preliminary objection of the Defendants is upheld on this ground. The service is liable to be set aside and it is hereby set aside.
 

The service of the originating summons in this case is declared improper and robs this court of its jurisdiction to adjudicate in the substantive claim i.e. the originating Summons. Plaintiff's case is hereby struck out".
 

This appeal is against the Ruling reproduced above.

Pricked, to the marrow, by the said final judgment striking out the originating suit in its entirety, upon the preliminary objection raised to the service of the said process, the Appellant has now appealed by a Notice of Appeal dated 16th day of July 2012. The said Notice is contained at pages 27 - 29 of the record, while the judgment is contained on page 19 to 26 of the Record of Appeal.
 

For the fuller appreciation of this appeal and in order to appreciate wherein the Justice of this appeal lies, I shall set out the facts of the case as relating to the proceedings in the trial court before the judgment appealed against was returned.
 

The Appellants instituted the action from which this appeal emanates at the lower court via an originating summons dated 12th December 2007, against the Respondents to enable the court determine the 3rd Appellant's powers as the receiver appointed over the assets of the 2nd Appellant by the 1st Appellant.
 

The court below granted an order of Injunction against the Respondents restraining them as Directors of the 2nd Appellant from interfering with the powers of the 3rd Appellant, and from dissipating the assets of the 2nd Appellant pending the determination of the suit.

The Respondents filed a Memorandum of Conditional Appearance as well as a Notice of preliminary objection challenging the competence of the aforesaid originating summons, its service and the jurisdiction of the court on account of improper service.

As is the practice, the Appellant filed the Appellants' Brief of Argument dated 26/11/2012 on the same said date, whilst the Respondents filed the Respondents Brief of Argument dated 30/4/13 on the same date.
The Appellants also filed the Appellants' Reply Brief of Argument on 26/2/14.
 

The Respondents' Briefs of argument was deemed filed on 25/2/2014 by leave of this court.

At the hearing of the appeal on the 26th May 2014, the Appellants' Learned Counsel, Sunday I. Onuegbu, Esq. holding the Brief of Olaseni Oyefeso Esq. (for he said so, although I see a Notice of change of Counsel dated and filed on 25/2/14) for he withdrew his earlier motion to hear the appeal on the basis of the Appellants' Brief alone, the Respondents having already filed their Brief of Argument by leave of court granted on 25/2/14. The said motion was struck out accordingly.
 

Thereafter the Appellants' Learned Counsel proceeded to adopt the Appellant's Brief of Argument and to withdraw the Appellants' Reply Brief which was accordingly struck out.

Learned Counsel then urged that this appeal be allowed and the Ruling of the trial court be set aside. He also urged that this court directs the lower court to relist the Originating Summons struck out and to hear it on its merit as the only issue before this court is whether the service was proper.

On his part, the Respondents' Learned Counsel adopted the Brief of Argument settled and filed for his clients and urged that the appeal be dismissed for want of merit and that the Ruling appealed against be affirmed. From the judgment i.e. Ruling of the trial court and the Grounds of appeal, the Appellants, in their Brief of Argument formulated a lone issue for the determination of this court, to wit;

ISSUE FOR DETERMINATION

Whether the court below rightly struck out the Appellants' Suit on the ground of improper service of the Originating processes on the Respondents. The Respondents on their part formulated the same Issue. Suffice it to say that the Respondents have by the reproduction of the Appellants' Sole Issue, adopted same. I shall therefore treat and determine the appeal on the basis of the common Issue of the parties as formulated by the Appellants and the Respondents.

ARGUMENTS ON THE SOLE ISSUE

Arguing this sole issue, the Learned Counsel for the Appellant submitted that the ground one of the objection having been resolved in favour of the Plaintiffs and against the Defendants/Respondents, while Ground 2 of the preliminary objection, having been withdrawn in open court by the Learned Counsel for the Defendants in the proceedings of the court below on 2nd May, 2012 (page 33 of the record) and as confirmed by the trial Judge in his Ruling at page 22 of the Record (last paragraph), and a resolution of Grounds 3 and 5 of the objection, all in favour of the Appellants as shown on page 24 - 25 of the record, that the only ground that was resolved against the Appellants was ground 4 which concerned the issue of improper service. That the success of this ground alone was the basis of the order of the trial court. That arguments had been taken on the validity of the Originating Summons, propriety of service of same on the Respondents (pages 33 38 of the record) and that the Originating Summons had been declared valid (see page 24 - 25 of the record). That proceeding to declare it invalid because it was improperly served on the Respondent and then striking it out amounted to approbating and reprobating and that there is a clear distinction between the validity of an Originating summons and validity of service of that Originating Summons.

It was submitted that where only the service was invalid it is the service thereof alone that should be set aside. Relying on the decisions of the Supreme Court in the following cases; Ezomo V Oyakhire (1985) 1 NSCC (pt. 1) 280 at page 282, par. 30 - 35; Nwabueze V. Obo Okoye (1988) 3 NSCC 53 at page 54; Sken Consult (Nig.) Ltd V. Ukey (1981) 1 NSCC 1; Adegoke Motors Ltd V. Adesanya & 7 ors (1989) 2 NSCC 327 at page 331 par. 5 - 30 and contended that the learned trial Judge ought only have set aside the service of the Originating Summons and nothing more as the validity of the writ and its service were distinct issues. We have been urged to therefore resolve the sole issue in favour of the Appellant and to allow the appeal and set aside the decision of the court delivered on 12th July, 2012 as being erroneous.

On his part, the Respondents' Learned Counsel argued per his Brief of Argument as adopted that the 1st Defendant/Respondent was not served personally while the 2nd Defendant/Respondent was not served at all.

This fact, he ascribes to the Ruling of the court. Before I proceed, I must state that there is no such finding or statement contained in the Ruling, earlier reproduced, as claimed in paragraph 3.25 of the Respondents' Brief at page 5 thereof. It is an act of professional misconduct to so ascribe to a court what it had not said. The mutilation of a court's Judgment or orders by quoting out of context or imputing what is not there is a clear case of misconduct; such an act is unethical and fraudulent. It must not be tolerated. It should not be practiced - for it may be at the pain of courting disciplinary action against a minister in the temple of Justice, who must not desecrate same.

Having said that I proceed, Learned Counsel had also submitted that the trial court had struck out the suit on the ground of non service of the processes on the Defendants/Respondents. That the court was only competent to assume jurisdiction if the case was initiated by due process of law and in compliance with the condition precedent for the exercise of jurisdiction. The cases of Mudukolu V. Nkemdilim (1962) ALLNLR 581; Equity Bank of Nigeria Ltd V Hallico Nigeria Ltd (2006) ALLFWLR (pt. 337) 438 at 452 - 453; A.C.B Int'l Bank Plc V Out (2008) ALL FWLR (pt. 406) 1817 at 1842 par E - F; Okoye V Centre Point Merchant Ltd (2008) ALLFWLR (pt. 441) 810 at 832 - 834 were referred to in submitting that none-service rendered the proceeding incurably defective and that it was not a mere defect in procedure and not a mere form but rather that it was an incurable irregularity that is extrinsic to the court. That it was beyond technical Justice and went to the doing of substantial justice.

That there was no appeal against the findings that there was no service on 2nd Defendant nor personal service on the 1st Defendant.

Counsel insisted that where there is a finding that the court had no jurisdiction, the proper order was to strike out the suit. Lado V. CPC (2012) ALLFWLR (pt. 607) 5.98 at 63; (SC) Babinton - Ashaye V E.M.A. Gen. Ent. (Nig.) Ltd (2012) All FWLR (pt. 645) 256 at 292 par D -E (Court of Appeal).
Counsel augued that the decision was a final Judgment that had determined or disposed of the rights of the parties and referred to Ude V Agu (1961) 1 SCLR 98; Olatunde V O.A.U (1998) 5 NWLR (pt. 549) 178 ratio 7. It was also argued that the action was struck out based on the prayer of the Respondents seeking that it be struck out and that the court as an impartial arbiter cannot recast, rearrange or reconstruct the reliefs with a view to granting the applications at all costs.
 

That the court can neither grant more than was prayed for, nor grant what was not prayed for. The cases of Olatunji v. Owena Bank (Nig.) (Plc) FWLR (pt. 158) p. 1215 at 1225 par. E - H, A.C.B; Int'l Bank Plc V. Otu (supra) 1847 par. D - E; Ekpenyong V Nyong (1975) NSCC 28 at P. 32 - 33 par. 50 - 55; Ilona V Idakwo (2003) FWLR (pt. 171) 1715 pg. 1738 - 1739 par. H -A.

That the trial court having upheld the preliminary objection of the Respondents, it was no longer open to the court to do anything but grant the prayers of the Respondents before it by striking out the case. We are urged to resolve the lone issue in favour of the Respondents and to dismiss the appeal. Learned Counsel contended that we should not be moved by the cases cited by the Appellants as according to him the facts and circumstances of those cases are different from and not on all fours with the present case and should be discountenanced. That this court should distinguish the cases as referred from those in this case and dismiss this appeal for lacking in merit.

I have read the entirety of the record to Appeal. It is not prolix. It is not bulky. There is contained therein, a motion for stay of execution which was withdrawn and struck out. The Counter Affidavit thereto, by the Respondents, admits copiously liabilities in respect of indebtedness and indicates payments or liquidation by the Respondent of over 50% of the indebtedness - subject matter of the originating summons.

See the Counter Affidavit filed 02/05/13 deposed to by Akeem Abdulsalam dated 26/11/12. I am entitled to peep into the record of the court and the processes therein to arrive at the Justice of a matter.

See Texaco V Lukoko (1997) 6 NWLR (pt. 510) 651 at 663; Okafor V Okafor (2000) FWLR (pt. 1) 17 at 25; Tsokwa Motors V. U.B.N Plc. (2008).
 

In this respect, I shall reproduce the paragraphs indicating the acknowledged liability by the Respondent in the matter of the suit that culminated into this appeal. Paragraph 12 (xvi) states:

"That the payment of nearly N50 Million Naira was made between 2008 - 2012 when the factory, the subject matter of this suit was under lock and key by the receiver - the 3rd Appellant/Applicant.
(xvii) That the Respondents has (sic) demonstrated good faith by liquidating almost half of the loan even when the factory is under lock and key.
 

21. That the Respondents have demonstrated good faith by paying more than half of their admitted indebtedness and more than 1/3rd  of the Appellants/Applicants claim even when the factory (res) was under lock and key of the receiver".

I shall come to the above averments later. The Federal high Court Civil procedure Rules, 2009 procedure Rules, 2009 provides at Order 6, Rule 2 thereof as follows:-

"save as otherwise prescribed by these Rules, an Originating process shall be served personally by delivering to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original process filed, without exhibiting the original thereof."
 

That is not all. Rule (5) thereof provides thus:-

"Where it appears to the 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
a.
b.
c.
d.
e."

It is, therefore, clear that the Rules of court relating to service is merely a rule of procedure and not a rule of substantive law conferring jurisdiction on a court of law. There is no doubt that where there is no service of a process on a party, the court cannot continue the adjudication in his absence as to do so will violate the pillar of fair hearing, to wit, audi alteram partem and the constitutional requirement of fair hearing under the constitution. As rightly submitted by the Learned Counsel for the Respondents, any hearing or proceedings without service of the court processes renders the proceedings null and void and liable to be set aside.

See Okoye V Centre Point Merchant Bank Ltd, supra.

In the instant appeal, however, there has been service of the Originating Summons, although not personally but on another person, who the court found to have been served, apparently for delivery to the 2 Defendants.
The court has discretion under the order 6, Rule 5 referred to supra, to suo motu or on an application to order service in either of the alternative means, ways listed thereat for substituted service, as no attempt at personal service had been made. From the above, it is clear that the court has discretion in the issue of service of court process, and its jurisdiction over the subject suit and trial thereof remain intact and was not affected thereby. This is more so that the court had found and held that the suit was properly commenced.
 

The cases of Madukolu V Nkemdilim (1962) ALL NLR 581; Equity Bank of Nig. Ltd V Hallico Nig. Ltd (2006) ALL FWLR (pt. 337) 438 at 452 - 453 referred to by the Respondents' Learned Counsel in arguing that the suit at the trial was by fact of none-personal service of the Originating Summons incompetent and the trial Judge without jurisdiction, are cited and applied out of context, as they are inapplicable to the facts and circumstances of this appeal.
I respectfully, do not agree that the suit is incompetent and the trial judge lacking in jurisdiction to hear it on the merit. What is the effect of the non-compliance with the provisions for personal service or service in particular mode? Was the Originating Summons valid? It was. The court so held and rightly. As the Appellants' Learned Counsel argued, it would amount to approbating and reprobating as did the trial court when having held that the action was competently taken out, to turn summersault to hold that the court had no jurisdiction because of the service of the process. Has the irregular service converted the action to an incompetent one? Or has the suit ceased to be one initiated by an Originating Summons as provide by the Rules and which was so done accordingly? It is therefore, my view that the argument of the Learned Counsel for the Respondents is not in consonance with fair hearing and justice.

As this court stated per Sotonye Denton-West, JCA, PJ in its judgment in CA/AK/18M/2013 M.T.N Nig. Communications Ltd V Mrs. Taibatu Babayoye delivered on 25th day of June 2014,

"Our courts have in various occasions emphasized on substantial compliance with the provisions of our laws rather than strict compliance. This, in our view, is to avoid justice threading on a thin line scale, thereby laying foundations for enthronement of technicalities in our laws. Law, we should know is a creation of mortals. Judges like every other person are mortals who are not without weaknesses, so do litigants and their solicitors out there".

The binding necessity which is an overriding one coming on the fusion of the principles of the common law and equity in 1875 by the Judicature Act is that law shall be administered concurrently with equity and in the case of conflict, the doctrines of equity shall prevail.

The Supreme Court in Omoju V FRN (2008) 7 NWLR (pt. 1085) 38 P. 14 paras. F - G held thus:

"Substantial Justice which is actual and concrete Justice is Justice personified. It is secreted in the elbows of cordial and fair jurisprudence with a human face and fair understanding. It is excellent to follow in our law. It pays to follow it as it brings invaluable dividends in any legal system anchored or predicated on the rule of law, the life blood of democracy".
 

Substantial Justice, where possible, must not be allowed to be defeated by irregularities or technicalities that could be cured by the exercise of a court's discretion. See Ekwere V. The State (1981) 9 SC 3.

It is in this respect that I recall the admission of indebtedness, efforts at repayment of the liability that was the subject of the Suit at the trial court.
This is also a good reason to exercise the discretion of waiving the requirement of personal service and condoning the actual substituted service which had already been effected and appearance already entered by the parties who were not misled that they were the Respondents sued. What purpose is to be achieved by undoing the service as if it had not taken place?
 

Has the purpose of issuing the Originating Summons not been achieved?
It has been achieved loudly and eloquently as even the court alluded to that fact. To conclude the discussion on this issue of service of process in a way other than the mode provided (which as I had indicated earlier in this Judgment may be waived and does not affect the jurisdiction of the court nor the competence of the suit), it is clear that the Originating Summons was served; except that it was not served on the Respondents personally as stipulated by the Rules of court in the 1st instance.

Although, it was not carried out strictu sensu, the pre-occupation of the trial Judge ought to have been on the need to determine the action on its merit, the parties having appeared.

What is more, the Originating process having been filed, the party i.e. Appellants had done all that they could, having paid the necessary filing fees. The trial judge acknowledged that it was served on an Accountant by the Bailiff of the trial court and apparently for the two Defendants.

In S.B.M. Service (Nig.) Ltd V Okon (2004) 9 NWLR (pt. 879) 529 this court had this to say:

"It is correct but elementary practice in our courts that when a document is brought to the court registry for filing and service and the fees accordingly paid as assessed by the registry, the party filing the document does not assume any other responsibility for filing and service of the document, except where necessary, he is called upon by the bailiff to act as a pointer to identify the party to be served with the document as a process of the court (omitted).

It is my view that the mistake or fault of a court official should not be visited on a party who has done what he is required to do to have his document filed in the court and served on his opponent".

In this appeal, the Originating summons has been paid for relating to the issuance and service thereof and there was no longer any obligation on the Appellants. The non-strict compliance with the primary mode of service (i.e. personal service) did not occasion any miscarriage of justice, in my contrite view. I am fortified, in my view, by the erudite words of Denton-West, JCA, PJ in MTN Nig. Communication Ltd V. Mrs. Taibatu Babayode (supra) where His Lordship, of this court, stated thus:

"It is my humble view that absence of strict compliance with the order of the lower court which the lower court shut its eyes, has not occasioned any miscarriage of Justice. Should the Appellant herein allege any miscarriage of justice, then it rests upon it to establish, otherwise this court is in tune with the position of the trial lower court. In view of the foregoing, this issue is hereby resolved against the Appellant".
 

I shall not conclude without again quoting, as did my Lord Denton-West, JCA, PJ, in the erudite Judgment I have referred to supra, as the circumstances/principles of law applicable and the views expressed therein are apt and applicable to the instant appeal.

The essence and raison d’etre of law in society has been restated in Buhari V Obasanjo (2003) 17 NWLR (pt. 850) 587 and adopted by this court thus:-
 

"The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering.

Where it relies on mere technicality or outmoded or incomprehensibility in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands".

I had also in CA/AK/18M/2012 MTN Nig. Communications Ltd V Mrs. Taibatu Babayode (supra) stated thus –

"The life span of the Writ of Summons ordered to be served out of jurisdiction had not expired and the said process was still valid and subsisting at the time of service and was properly endorsed; albeit served beyond the period ordered. The court of trial had the discretion and jurisdiction to jettison or condone the service outside the period ordered in the interest of Justice as he did.

The Respondent had no fault therein the service, nor was the Appellant prejudiced in any way. Justice, substantial justice is the basis for the judicial process. See the State V Gwonto (1983) 1 SCNLR 142; British American Insurance Co. Ltd V Edeman-Sillo (1993) 2 NWLR (pt. 277) 567".

This thought applies to the instant appeal perfectly and as a fitting garment. The Respondents' Counsel's submissions that the Ruling of the trial court was a Judgment and not a mere Ruling is of no consequence or relevance, nor is his simplistic arguments (with profound respect) that the court granted the relief as sought, as it after all, had no right to alter the relief, tenable. All other arguments raised, though valid in some instances did not address the Justice of this appeal in the slightest.

Accordingly, I agree with the Appellants, submissions and resolve the lone issue argued, in favour of the Appellants and against the Respondents.
 

In consequence, this appeal is allowed as it is meritorious. The Judgment of the trial court delivered on 12/7/12, striking out the case of the Appellant i.e. Suit No. FHC/OS/CS/38/2007 is set aside and in the stead of the said order "striking out", I hereby substitute an order that the said suit be restored to the cause list of the Federal High Court Osogbo and to be heard on its merit by another Judge of the court at Osogbo or as may be determined by the Chief Judge of the Federal High Court.

Appeal allowed. Parties are to bear their respective costs.

SOTONYE DENTON WEST, J.C.A.:

The facts and the law in this appeal hive been so exhaustively dealt with in the judgment of my learned brother Mohammed Ambi-Usi Danjuma, JCA and with which I am in entire agreement that I need no further expatiation thereof. This is without prejudice to making my own few comments especially on the issue of service.
 

There is no doubt whatsoever that the Appellant did not comply with the mode of service as prescribed by the provision of Order 6, Rule 2 of the Federal High Court Civil Procedure Rules, 2009 which provides thus:
 

"Save as otherwise prescribed by these Rules, an originating process should be served personally by delivering to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original process filed, without exhibiting the original thereof."

Meanwhile the record 'of proceedings shows that the originating summons were served by the court's bailiff on one T. O. Abiola, an accountant at Adeniran Steel and Wire Industry, Ilesha on 17/2/2007 who received the processes on behalf of the two Respondents, contrary to the aforementioned provision that states "shall be served personally...."

It is interesting to note that the end goal of this proviso is to ensure that the parties are adequately notified and prepared for the impending action, so as not to deny them their right of fair hearing as enshrined in the constitution.
Curiously enough, the trial Judge on page 25 of the Record of Appeal averred to the fact that the Respondents at the lower court did enter appearance and took part in the proceedings to the very end. To my mind, if this does not constitute a waiver then what else is?

Qui Tacet Consentire Videtur - He who is silent seems to consent.

In the case of Odua Inv. Co, Ltd. V. Talabi (1991) NWLR (pt. 170) 761 @ pp.779 - 981, Tobi, JCA (as he then was) declared thus:

"Where a writ of summons is served outside jurisdiction without leave of the Judge or court and a defendant enters an unconditional appearance on the strength of the irregular service, this would constitute a waiver." (Emphasis mine)

In any case, the trial Judge even if excused for not deciding this act to amount to a waiver ought not to have ordered for a striking out as this would only make matters worse by creating substantial injustice to the Appellants.
It is on this premise that I also allow this appeal. This appeal is meritorious and likewise succeeds.

The judgment of the trial court delivered on 12/7/2012, in Suit No. FHC/OS/CS/38/2007 is hereby set aside. I also order that the suit be restored to the cause list and to be heard on the merit by another Judge of the court at Osogbo.
 

I give no order as to costs.

JAMES SHEHU ABIRIYI, J.C.A.:

I read before now in draft of the judgment of my learned brother M. A. Danjuma JCA and agree entirely with it.

A writ of summons may be valid while its service, leading to this appeal may suffer from some defect. Where the writ of summons has been regularly issued without compliance with the Sheriffs and Civil Process Act what is void and to be set aside is the service and not the writ itself. See Owners of the Mr "Arebella" V. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (pt 1079) 182.
The Lower Court was in error when it held that the improper service robbed it of jurisdiction to adjudicate on the substantive matter and proceeding to strike out the case.

However, its order setting aside the service was proper.

I too allow the appeal and set aside the order of the Lower Court striking out the suit.
 

The suit is hereby restored to the cause list of the Federal High Court Osogbo and to be heard on the merit by another Judge of the Court at Osogbo or as it may be determined by the Chief Judge of the Federal High Court.