(2018) LPELR-45373(CA)

Transcription

1 MUA'ZU & ORS v. BAWA CITATION: In the Court of Appeal In the Jos Judicial Division Holden at Jos ON WEDNESDAY, 23RD MAY, 2018 Suit No: CA/J/118/2017 UCHECHUKWU ONYEMENAM Before Their Lordships: HABEEB ADEWALE OLUMUYIWA ABIRU ELFRIEDA OLUWAYEMISI WILLIAMS- DAWODU Between 1. ALHAJI MOHAMMED BABANGIDA MUA'ZU (EMIR OF KANAM) 2. SALIHU ADAMU (WARD HEAD OF KUNSHA'AM) Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal 3. HASHIMU IDRIS (WARD OF BA'AM) 4. MAL. MOHAMMED SANI MOHAMMED (CLAN HEAD OF BAGAGDI) - Appellant(s) 5. ADAMU ABDULLAHI (CLAN HEAD OF MAJE) 6. AHMED ADAMU (VILLAGE HEAD OF GICONG) ALHAJI MOHAMMED BAWA And - Respondent(s) RATIO DECIDENDI

2 1. ACTION - ORIGINATING SUMMON(S): Circumstances when the adoption of originating summons will/will not be appropriate to commence an action "On the second issue for determination, Counsel to the Appellants contended that the issues raised by the Respondent on the originating summons were contentious in nature and that they involved substantial dispute on the facts and would require oral evidence to resolve and that as such the use of originating summons was improper. It was his further contention that the use of originating summons was also improper because the reliefs sought in the action was declaratory orders and that originating summons cannot be used for such declaratory reliefs. Counsel to the Respondent contended otherwise and stated that the essence of the entire action was for the lower Court to interpret and construct some named legal instruments and survey plan and that originating summons was the perfect mode for commencing such an action. Originating Summons is one of recognized modes of commencing an action in the High Court of Plateau State. Order 1 Rule 2 (2) of the High Court Plateau State (Civil Procedure) Rules states that proceedings may be begun by originating summons where the sole or principal question at issue is or is likely to be one of construction of a statute or some other type of document or where there is unlikely to be any substantial dispute on the facts. Let me say straightaway that the submission of Counsel to the Appellants that originating summons cannot be used to commence an action where a party seeks for declaratory reliefs is a complete fallacy. It is only matters for declaration of title to land that the Court have said cannot be commenced by originating summons which does not admit oral evidence - Orianwo Vs Orianwo (2001) 5 NWLR (Pt. 707) 516, Ajagungbade III Vs Adeyelu II (2001) 6 NWLR (Pt. 738) 126. The Courts maintain that land cases should be heard on the merits because of their sensitive nature - Okereke Vs Liquid Investment (Nig) Ltd (1998) 8 NWLR (Pt. 560) 26. In land matters, it is essential that a claimant leads evidence in proof of his claim so that the Court may assess its worth, even if the defendant fails to file a statement of defence - Ohaji/Egbema/Oguta Local Government Vs Etiti (2001) 2 NWLR (pt. 696) 63. From the provisions of Order 1 Rule 2 (2) of the High Court Plateau State (Civil Procedure) Rules, it is clear that where a suit is principally about the construction of written law, or an instrument or any deed, will, contract or document or some other question of law, or where there is no likelihood of the facts to be in dispute, the employment of originating summons will be the appropriate method of commencing the suit - Alfa Vs Attai (2017) LPELR 42579(SC). Reading through the originating summons in the instant case, the questions raised for determination call for the interpretation and construction of the Plateau State Legal Notice No. 1 of 1981, the Plateau State Government Views and decision on the report of the Administrative Committee to review the Definition of some Chieftaincy institutions in Plateau State and the survey plan of Kanam Local Government showing the Gazette Area and Villages. The use of originating summons for these purposes is clearly within the provisions of Order 1 Rule 2 (2) of the High Court Plateau State (Civil Procedure) Rules. The next question is whether there is a likelihood of substantial dispute on the facts on the originating summons? The originating summons was supported by an affidavit with exhibits. The Appellants did not file a counter affidavit. In Olujinmi Vs Ekiti State House of Assembly (2009) 11 NWLR (Pt. 1153) 464, this Court held that a substantial dispute of facts means real dispute or controversy of considerable importance as opposed to an imaginary dispute or controversy. In Pam Vs Mohammed (2008) 16 NWLR (Pt. 1112) 1, the Supreme Court stated that "it is not the law that once there is dispute on facts the matter must be commenced by writ of summons. No. This is not the law. The law is that the dispute on facts must be substantial and material affecting the live issues in the matter. Where the disputes are peripheral, not material to the live issues, an action can be sustained by originating summons. After all, there can hardly be a case without facts, facts make a case and it is the dispute in fact that gives rise to litigation." What these dovetail to is that the question of whether there is a substantial dispute on the facts to negate the use of the originating summons procedure is not dependent on the say so of the party contending the use of the procedure. It is to be determined by the trial Court upon a critical consideration of the reliefs sought on the originating summons and facts presented in the affidavit in support thereof to see if the proceedings are hostile and there are likely disputes of facts that are material to the live issues in the matter - Ossai Vs Wakwah (2006) 4 NWLR (Pt 969) 208, Conoil PIc Vs ITF Governing Council (2013) LPELR 22472(CA), Jimoh Vs Aleshinloye II (2014) 15 NWLR (pt. 1430) 277. The lower Court in the instant case examined the process and found that this matter did not require ordering of pleadings and was one that could be decided on affidavit evidence. I have read through the reliefs sought on the originating summons and the affidavit in support thereof and the exhibits attached thereto and I am in total agreement with the lower Court. The resolution of this matter will turn largely on the interpretation to be given to and the legal effect of the documents attached as exhibits to the affidavit. The use of the originating summons procedure was thus proper in the circumstances." (DISSENTING)Per ABIRU, J.C.A. (Pp , Paras. F-D) - read in context

3 2. PRACTICE AND PROCEDURE - SERVICE OF COURT PROCESS(ES): Importance/object of service of process(es); effect of failure to serve process(es) where required "The law is established that service of an originating process, such as Writ of summons, Petition, Originating Motion or Notice of Appeal is fundamental and a pre-condition to the exercise of jurisdiction by the Court. Where there is no service of such process on a party the Court seized with the case lacks the necessary competence to hear or determine the matter. In the circumstance, even where an appearance has been entered, the trial Court has no jurisdiction to entertain the claim and should decline to hear the plaintiff. Any proceedings embarked upon without required service of originating process will amount to nothing. Ordinarily, the form of service required is personal service unless otherwise directed by the Court. In other words, where personal service is required and service is effected otherwise without leave of Court for substituted service, any such service will be void and will not be countenanced by the Court. IHEDIOHA & ANOR VS. OKOROCHA & ORS (2015) LPELR (SC); NATIONAL BANK OF NIGERIA LTD VS. GUTHRIE NIGERIA LTD & ANOR (1993) 3 NWLR (PT. 284) 643; (1993) 4 SCNJ 1; (1993) 24 NSCC (PT. 1) 401; (1993) LPELR 1952 (SC). The Appellant's contention as per paragraphs 4 to 6 of the affidavit in support of motion on notice at pages 86 to 87 of the record is that the Originating Summons filed by the Respondent was not served on them personally. From the contentions of the learned counsel for their respective clients, the examination of the propriety of the service of the Originating summons on the Appellants will be viewed from two parts, the 1st Appellant on the one hand and the 2nd to 6th Appellants on the other hand. I will start with the later part. Upon examination of the affidavit of the Appellants in support of their Motion on Notice at the trial Court contained at pages of the record, I observe that the affidavit is bare in particulars as there is no deposition on the mode of service on them and how the service of the Originating Summons on the 2nd to 6th Appellants was not proper. It does appear that the 2nd to 6th Appellants expected the trial Court to speculate on the mode of service of the originating process on them, but unfortunately the Supreme Court has barred the Courts in this land from indulging in speculation. ARCHIBONG VS. STATE (2006) ALL FWLR (PT. 323) 1747 AT 1773; AGBI VS. OGBEH (2006) ALL FWLR (PT. 329) 941 AT 986.?Where as in this case the Appellants merely stated in paragraph 4 of their affidavit that they were not personally served with the Originating Summons without stating how or in what manner the originating process was served on them, the Appellants' claim that they were not served personally, in my view is a mere assertion devoid of facts. BAJOGA VS. THE GOVERNMENT OF THE FEDERAL REPUBLIC OF NIGERIA & 3 ORS (2007) ALL FWLR (PT. 394) 273 AT 310. This is more importantly, when the Bailiff of the trial Court deposed to an affidavit stating that he effected personal service of the originating process on the Appellants. See page 152 of the record. It is trite that the best evidence of service of process of Court is by Affidavit of service. In the instant case, in addition to the Affidavit of service of the Bailiff of the trial Court, the 2nd - 6th Appellants all signed the endorsement and return copy of the Originating Summons to acknowledge receipt of the originating process personally served on them. See pages 1-2 of the Supplementary Record. It is worthy of note that the said Appellants did not deny that the signatures on the endorsement and return Copy of the Originating Summons were not their respective signatures. In the case of OKOLI VS. MORECAB FINANCE (NIG.) LTD. (2007) ALL FWLR (PT. 369) 1164 AT 1193 PARAS F - G; the Supreme Court citing with approval the dictum of Scruttion LJ in BLAY VS. POLLARD (1930) 114B 628 at 633 held inter alia: "...It would be very dangerous to allow a man over the age of legal infancy to escape from the legal effect of a document he has, after reading it signed, in the absence of an express misrepresentation by the other party of that legal effect." Accordingly, having acknowledged service of the originating process on them by signing the endorsement and return copy of same, the 2nd - 6th Appellants are bound by it. Thus I hold that the 2nd - 6th Appellants were personally served with the Originating Summons. The learned trial Judge was therefore right in holding that the 2nd to 6th Appellants were properly served with the originating process in the suit. On the issue of service of the Originating Summons on the 1st Appellant, the Appellants grouse stems on the holding of the learned trial Judge at page 133 of the record where he said: "I find that 1st (sic) Defendant being the Emir of Kanam was sued in a representative capacity ion (sic) behalf of the entire Kanam Emirate hence service on him personally was not feasible and proper. I am satisfied that service on him through the Secretary of the Emirate Council was proper. There was no need seeking leave of the Court for substituted service of the summons on him personally. This accords with the respect on his exalted position. I am in agreement with the learned Plaintiff's counsel that service on him through the Secretary of the Emirate was proper and amounted to presumed that the Originating process would be given to him hence personal service is contemplated." The learned counsel for the Appellants no doubt is right in relying on the authorities of Order 12 Rule 2 of the Plateau State (Civil Procedure) Rules 1987; MADUKA VS. UBAH (2015) 11 NWLR (PT. 1470) 201 AT 219 to submit that an originating process like Originating Summons must be served on a party personally. The issue herein is whether the service on the 1st Appellant with the Originating Summons through one Alh. Mohd Abdullahi B. qualifies as personal service. Dr. Ardzard dismissed the cases of MADUKA VS. UBAH (2015) 11 NWLR (PT. 1470) 201; OKORE VS. C.P.M.B LTD. (2008) 15 NWLR (PT. 1110) 335; and all other judicial decisions the learned counsel to the Appellants relied on as inapposite to the case at hand being that the persons who contested the validity of service of originating processes on them in those cases, unlike the case instant, did not belong to a class of persons on whom it is highly undesirable for the Bailiff of Court to approach directly to effect service of Court processes on them due to the nature of their offices. For this proposition Dr. Ardzard, the learned counsel for the Respondent relied on the cases of ADAMU VS. AKUKALIA (2008) ALL FWLR (PT. 428) 352 AT PARAS F - F; R.S.G.N. VS. SPECIALIST KONSULT (2005) ALL FWLR (PT. 254) 875 AT 893 PARAS E - F; which were distinguished by Mr. N. T. Komak in the Appellants' reply brief. As I stated above, the position of the law is well established as the apex Court Per Peter- Odili, JSC succinctly stated, that: "To effect personal service of Court process on a party, the bailiff or any officer of Court entrusted with the task should satisfy himself that he has found the right man. It is not enough to leave a Court process with a person who works in the same office with the defendant, as was done in this case, even if the latter undertakes to convey it to the appellants.... With all the respect the Supreme Court never decided in EGOLUM VS. OBASANJO (1999) 7 NWLR (PT. 511) 255 OR 413 that defect in service of originating process is a mere matter of technicality. Instead, the Supreme Court decided in KIDA VS. OGUNMOLA (supra) that defect in service affects the jurisdiction of the Court... Anything other than that would translate to no service of an originating process as in this case and that being so, the competence of the process is impaired and the result is that the jurisdiction of the Court of trial cannot be activated. The position is not changed by the appearance in Court of the respondents as once there is no jurisdiction of Court, the appearance of the protesting party would not confer the jurisdiction as the long stated issue of putting something on nothing and expecting it to stand would apply. See: MACFOY VS. UAC LTD (1961) 3 ALL ER Indeed, this is not one of those instances where technical justice is not applied and so the case of EGOLUM VS. OBASANJO (1999) 7 NWLR (PT. 511) 233 OF 413 does not apply to aid the appellant. This is because what is at play here is fundamental, goes to the root of the jurisdiction of the Court and the situation cannot be ignored." (underlining mine for emphasis). EMEKA VS. OKOROAFOR & ORS (2017) LPELR (SC).?This means by the general principle of law, the Originating Summons meant for the 1st Appellant a Traditional ruler, but which was served on one Alh. Mohd Abudullahi B. his secretary at his palace by the bailiff of the trial Court did not amount to personal service. This is the stance of the Appellants. However, by the decision of the apex Court in R.S.G.N. VS. SPECIALIST KONSULT (2005) All FWLR (PT. 254) 875 AT 893 PARAS E - F; I will have to determine whether the 1st Appellant falls within the "special class" that could be served otherwise with Originating process, other than by personal service as contended by the Respondent. In R.S.G.N. VS. SPECIALIST KONSULT (supra); the Supreme Court in determining the issue whether the Court below was right to have held that the Appellants were properly served, it considered the contention of the Appellants therein that it was proper service where the Government and Attorney General of Rivers State were served through one Mrs. Marcus in the River State Liason office in Lagos. The Court held thus: "It is in any event now settled that where a service is effected in the liaison office, it is presumed that that service was properly effected. It must be noted that in several of the cases that had been brought to this Court, parties were apparently served through the liaison offices of their various states and they duly responded to such service without taking any exception to the fact that they were served through their State Liaison Offices. See ATTORNEY GENERAL OF ONDO STATE VS. ATTORNEY GENERAL OF THE FEDERATION & 35 ORS (2002) 9 NWLR (PT. 772) 222, (2002) 6 SC (PT. 1) 1; ALHAJI MOHAMMED DIKKO YUSUFU & ANOR VS. CHIEF OLUSEGUN AREMU OKIKIOLA OBASANJO & 56 ORS (2003) 16 NWLR (PT. 847) 554, (2003) 9-10 SC 53 AND ATTORNEY GENERAL OF THE FEDERATION VS. ATTORNEY GENERAL OF ABIA STATE & 35 ORS (NO.2) (2002) 6 NWLR (PT. 764) 542, (2002) 4 SC (PT. 1) 1. In the instant case, there is uncontradicted evidence that the appellants were served at No. 26 Bishop Oluwole Street, the Liaison Office of the Rivers State Government at the time. The only reasonable inference that can be raised is that the appellants were duly served at the said Liaison Office, No. 26 Bishop Oluwole Street, Victoria Island, with the Court processes as claimed by the respondent. I must therefore, resolve this issue against the appellants." The Appellants in their reply brief drew distinctions between the instant case and the cases of ADAMU VS. AKUKALIA (2008) ALL FWLR (PT. 428) 352 AT PARAS F - F; R.S.G.N. VS SPECIALIST KONSULT (SUPRA). I will concentrate on the Supreme court decision which was relied upon by this Court. It is correct as differentiated by the Appellants' counsel that the Originating process was served on the Rivers State Government and the Attorney General of Rivers State in their liaison office in Lagos through one Mrs. Marcus. These two are juristic persons. The Government of Rivers State referred to therein is an artificial person vested with legal personality but lacks the natural or physical capacity to function as a human being, those who work in it perform all functions for it. Accordingly, it can only act through a natural person. The originating process meant for the Government of Rivers State was served on a natural person Mrs. Marcus at the Rivers State liaison office Lagos. It is important to note that a liaison office is a creation for administrative convenience of a State Government. The word "liaison" means a working association to ensure that each side is well informed about what the other is doing. Let me quickly add that a liaison office of a state though not a place of business is like an embassy of the state. The liaison office of Rivers state in Lagos state is Government of Rivers State in Lagos. Accordingly, service of an originating process at a liaison office is service on the Government that has a working association with that liaison office. The case is not the same here. In the instant appeal, the 1st Appellant though a traditional ruler is a natural person who when sued stands for himself without the need for a natural person to hold forth for him. The rules of service of processes as they relate to artificial persons differ from those of natural persons. The case would be different where the party is a Governor of a State in which case the Governor as a corporate sole would need to be served personally with an originating process unless there is an order for substituted service. The case of R.S.G.N. VS. SPECIALIST KONSULT (SUPRA) stands out in its decision on service of originating process. In my understanding, it did not create a special class for the rules of service. The decision is peculiar to the facts of the case by reason of the parties involved. I do not agree with the learned counsel for the Respondent as implied in his submission that the purpose of the decision in R.S.G.N. VS. SPECIALIST KONSULT (SUPRA), is to allow special mode of service for a class of persons on whom it is highly undesirable for the Bailiff of Court to approach directly to effect service of Court processes on them due to the nature of their offices neither is it for the purpose of easing off the cumbersome nature of service of high profile persons in the society. When the issue challenging service is the difficulty and or impracticability of reaching a party for personal service, the law has provided for substituted service as a remedy. The more recent decisions of the apex Court put it beyond peradventure the strict adherence to the requirement of personal service of originating process when provided by the rules when it held: "Rules of Court are meant to be obeyed; they are not made for the fun of making rules. Where the rules provide for personal service, nothing short of that is acceptable, unless it becomes practically impossible to effect such service personally." BULLET INT'L (NIG) LTD. VS. HONOURABLE MINISTER, FCT, ABUJA (2011) LPELR (SC). In the referred case, the apex Court considered the learned counsel for the Appellant's submission that personal service by hand delivery is impossible when the party to be served is a corporate sole or Government Agency. According to the learned counsel, service on senior or specified officers of such corporate sole or agency constitutes proper personal service. Learned counsel referred to the Minister as corporate sole and contended that service on the Chief legal officer in the Legal Services Department of the Federal Capital Development Authority is personal service on the Minister of FCT. The apex court however held that service on senior officers of the Minister of FCT does not satisfy the requirement for "personal service" envisaged in the relevant rules of the lower Court. The Supreme Court held that a Minister in the Government of Nigeria, in charge of the Federal Capital Territory must be served personally. The Court made reference to the cases of: a) ATTORNEY GENERAL OF EKITI STATE VS. DARAMOLA (2003) 10 NWLR (PT. 827) 104, where the Supreme Court observed that, the Attorney General, being a Defendant in the case where Ekiti State was accused of disobeying Court order ought to have been personally served with the committal processes. The Court added that the Attorney General was not properly served with the committal processes, since he was not personally served, and there was no application for substituted service for the Court to rely upon in dispensing with personal service. b) MILITARY GOVERNOR OF KWARA STATE VS. AFOLABI (1991) NWLR (PT. 196) 212 AT 227 PARAGRAPHS F-G; the Supreme Court held that the Military Governor who is a corporate sole, ought to have been served personally. I am not unmindful of the fact that the case of BULLET INT'L (NIG) LTD VS. HONOURABLE MINISTER, FCT, ABUJA was a committal proceedings but the principle is the same having regard to the fact that Order 41 Rule 2 (2) of the FCT High Court (Civil) Procedure) Rules 2004; like the Order 12 Rule 2 of the Plateau State (Civil Procedure) Rules 1987; provided for personal service. It is important to mention that the apex Court in BULLET INT'L (NIG) LTD VS. HONOURABLE MINISTER, FCT, ABUJA (supra),noted the difficulty to serve people in authority in this country and concluded that where there are difficulties in effecting such service, the Court can dispense with such service provided there is application for substituted service. From the decision in BULLET INT'L (NIG) LTD, and the other cases referred to therein, it is abundantly clear that artificial persons like The State Government, a Government Agency etc., who can only function via natural persons can be served through specified officers working in them to qualify as proper personal service, but this does not apply to corporate soles like; The Governor of a State, Minister of the Federal Republic, etc.; except where provided for in the rules. It is my view therefore that the case at hand is different from the case of R.S.G.N. VS. SPECIALIST KONSULT (SUPRA). The 1st Appellant herein does not fall into the same class of artificial persons who can only function through natural persons. Since Order 12 Rule 2 of the Plateau State (Civil Procedure) Rules 1987 provides for personal service, that rule must be obeyed for there to be said to be proper service on the 1st Appellant unless the Court orders otherwise. Furthermore, that the 1st Appellant was sued in a representative capacity does not place him in the category of a juristic person to entitle him not to be served personally. In a representative action, the named representative is dominus litis. He is to sue and be sued, he manages and maintains the action for and on behalf of those he represents until the action is determined. RE: APEH & ORS VS. PDP & ORS. (2017) LPELR (SC). In law a dominus litis in whose name an action can either be initiated or defended, is the person to be handed over the copy of any originating process by the bailiff of the Court to amount to personal service. In the instant case, where the 1st Appellant Alhaji Mohammed Babangida Mua'zu, Emir of Kanam was sued in a representative capacity, being the dominus litis should have been served personally with the Originating summons. The service on his secretary and or the secretary of the Emirates council in the circumstances of this case does not amount to personal service and as such offends Order 12 Rule 2 of the Plateau State (Civil Procedure) Rules 1987, I so hold. I therefore agree with the learned counsel for the Appellants that the learned trial Judge erred when he held inter alia: that there was service of the originating process on the 1st Appellant because as an Emir and who was sued in a representative capacity, service on him through the secretary of the Emirates council was proper personal service on him. From all I have said above, I resolve issue 1 in favour of the Appellants. Having thus resolved the issue, let me reiterate that where personal service is required as by Order 12 Rule 2 of the Plateau State (Civil Procedure) Rules 1987 and service was effected otherwise without leave of Court for substituted service, such service is void and should not be countenanced by the Court. Consequently, the Court seized with the case lacked the required jurisdiction to hear or determine the matter. Where as in this case they were many Defendants at the trial Court, and I found that the 2nd to 6th Appellants were properly served; failure to serve the 1st Appellant with the Originating Summons as I held above rendered the Process incompetent. With the process incompetent as a result of lack of required service of originating process, any proceedings embarked upon is in futility. IHEDIOHA & ANOR VS. OKOROCHA & ORS (2015) LPELR (SC); ADEGBOLA VS. OSIYI & ORS. (2017) LPELR (SC); C. G. G. (NIG.) LTD VS. AMINU (2015) 7 NWLR (PT. 1459) 577 AT , PARAS. H-B; NATIONAL BANK OF NIGERIA LTD VS. GUTHRIE NIGERIA LTD & ANOR (1993) 3 NWLR (PT. 284) 643; (1993) 4 SCNJ 1; (1993) 24 NSCC (PT.1) 401; (1993) LPELR 1952 (SC); NATIONAL BANK OF NIGERIA LTD VS. GUTHRIE NIGERIA LTD & ANOR (1993) 3 NWLR (PT. 284) 643; (1993) 4 SCNJ 1; (1993) 24 NSCC (PT.1) 401; (1993) LPELR 1952 (SC). It therefore means the Originating Summons before the trial Court was not initiated by due process of law, and upon fulfilment of proper service of the originating process as a condition precedent to the exercise of jurisdiction by the trial Court. MADUKOLU & ORS. VS. NKEMDILIM (1962) 2 NSCC P. 374; (1962) 2 SCNLR 341. With the position of the law that Service of originating process is not an issue of mere technicality but a vice that goes to the roots of adjudication. Improper service of Originating process on a defendant, as in this case the 1st Appellant, denies the Court of its competence to adjudicate in the matter, since the suit would not have been initiated in accordance with the due process of law. EMEKA V. OKOROAFOR & ORS (2017) LPELR (SC); SKENCONSULT (NIG.) LTD VS. UKEY (1981) 1 SC (REPRINT) 4 AND UCHENDU VS. OGBONI (1999) 5 NWLR (PT. 603) 337. Put differently, with the apex Court's consistency in maintaining that service of processes, particularly the originating process, is a precondition to the exercise of a Court's jurisdiction. Where there is no service at all or there is some procedural fault in service as in the instant case, the subsequent proceedings are a nullity ab initio. HARRY VS MENAKAYA (2017) LPELR (SC); EIMSKIP LTD. VS. EXQUISITE IND. (NIG) LTD. (2003) 4 NWLR (PT. 809) 88 citing with approval SKENCONSULT (NIG.) LTD. VS. UKEY (supra). In all therefore, this Appeal succeeds and is allowed. I hold that the trial Court had no vires to adjudicate on the Originating Summons, the entire proceedings was a nullity. Accordingly, I strike out Suit No. PLD/J118/2016."Per ONYEMENAM, J.C.A. (Pp. 9-29, Paras. E-C) - read in context

4 3. PRACTICE AND PROCEDURE - SERVICE OF COURT PROCESS(ES): Whether a traditional ruler sued in representative capacity can be served Court processes through his secretary "There are six Appellants in this appeal. I agree with the finding made in the lead judgment on the propriety and appropriateness of the service of the originating processes on the second to the sixth Appellants. It is the finding that the service of the originating processes on the first Appellant was improper that I differ on. The first Appellant is the Emir of Kanam and he was sued in this case in a representative capacity for and on behalf of the Kanam Emirate Council of Kanam Local Government. The records of appeal show that the originating processes in this matter were served on the first Appellant through the Secretary of the Emirate Council, one Alhaji Mohammed Abdullahi B., in the palace of the first Appellant. The question is whether this service amounted to proper service. Counsel to the Appellants argued strenuously and copiously that the service was improper in that what the Rules of Court specify is personal service and he referred to several case law authorities. Counsel to the Respondent differed and submitted that since the first Appellant was sued in a representative capacity, as an institution, service on him through the institution amounted to personal service and he also referred to case law authorities. It is settled law that the office of the Emir of Kanam is a corporation sole with perpetual succession. In Fawehinmi Vs Nigerian Bar Association (No. 2) (1989) All NLR 274, the Supreme Court adopted the definition of a corporation sole as a body politic having perpetual succession, constituted in a single person, who, in right of some office or function, has capacity to take, purchase, hold, and demise lands, tenements, and hereditaments, and also to take and hold personal property, to him and his successors in such office for ever, the succession being perpetual, but not always uninterruptedly continuous; that is, there may be, and often are, periods in the duration of a corporation sole, occurring irregularly in which there is a vacancy, or no one in existence in whom the corporation resides and is visibly represented. The office of the Emir of Kanam comes within this definition. By commencing the action in the lower Court in a representative capacity against the Emir of Kanam for and on behalf of the Kanam Emirate Council of Kanam Local Government, it is my view that it is not the present holder of the office that was sued personally, which would have been the case if he was sued in his personal capacity, but the office as a corporation sole. The name of the first Appellant was only mentioned on the originating processes as an officer of the corporation sole. Therefore, the applicable provisions of the Rules of Court to service of the originating process on the first Appellant cannot be those governing service on individuals as direct parties, but those governing service on a corporation sole. This is Order 12 Rule 8 of the High Court of Plateau State (Civil Procedure) Rules and which reads: "When the suit is against a corporation or a company authorized to sue and be sued in its name or the name of an officer or trustee, the writ or other document may be served, subject to the enactment establishing such corporation or company or under which it is registered, as the case may be, by giving the same to any director, secretary or other principal officer, or by leaving it at the office of the corporation." (underlining for emphasis) This provision has been severally interpreted by the Courts to mean that service of Court processes can be effected on a corporation in either of two ways: (i) by serving same on a director, secretary or other principal officer of the corporation; or (ii) by leaving it at the office of the company. The two modes of service are disjunctive and not conjunctive and the use of either of them is good and sufficient -Haruna Vs Ladeinde (1987) 4 NWLR (Pt 67) 941, First Bank of Nigeria Ltd Vs Njoku (1995) 3 NWLR (Pt 384) 457, Texaco (Nig) Plc Vs Lukoko (1997) 6 NWLR (Pt. 510) 651, Cash Affairs Finance Ltd Vs Inland Bank of Nigeria Plc (2000) 5 NWLR (Pt. 658) 568, Daniels Vs Insight Engineering Co Ltd (2001) 10 NWLR (Pt. 775) 231, Afonja Community Bank (Nig) Ltd Vs Akpan (2002) 16 NWLR (Pt 792) 154, Integrated Builders Vs Domzaq Ventures (Nig) Ltd (2005) 2 NWLR (Pt. 909) 97 and Ethiopian Airlines Vs Onu (2005) 11 NWLR(Pt. 936) 214 to mention a few. Service of the originating process in the instant case was effected on the Secretary of the Kanam Emirate Council in the palace of the Emir of Kanarn. It is without doubt that the Secretary of the Kanam Emirate Council is a principal officer of the corporation sole and that the palace of the Emir of Kanam is the office of the corporation sole. The service, in my view, satisfied both modes of serving originating processes on a corporation sole. I am not unaware of the cases of Bullet International (Nig) Ltd Vs Honorable Minister of the FCT, Abuja (2011) LPELR 42097(CA), Attorney General of Ekiti State Vs Daramola (2003) 10 NWLR(Pt 827) 104 and Military Governor of Kwara State Vs Afolabi (1991) NWLR (pt. 196) 212, referred to in the lead judgment, where it was held that present holders of offices in the nature of corporation sole must be served personally for the action to be competent. It is my view, with respect, that these cases are inapplicable in the present circumstances. The three cases were contempt proceedings and they were aimed at holding the present holders of those offices directly and personally liable in contempt. Now, contempt of Court is an offence purely sui generis and its punishment involves, in most cases, an exceptional interference with the liberty of the citizen by a method or process which would in no other case be permissible or tolerated - Boyo Vs The State (1970) All NLR 316, Deduwa Vs The State (1975) 1 All NLR 1. They are quasi criminal in nature and this is why the Courts insist that the person sought to be directly held liable for contempt must be served personally to give them the opportunity to defend themselves - Agu Vs Anyalogu (2002) 14 NWLR (Pt 787) 294, Attorney General of Ekiti State Vs Daramola (2003) 10 NWLR (Pt 827) 104, Federal Capital Development Authority Vs Koripamo-Agary (2010) 14 NWLR (Pt 1213) 377. This is not the position in the present case. The principal orders in the present suit are directed against the office of the Emir of Kanam and none of them seeks for the committal of the first Appellant, in his personal capacity, to prison. It is a settled principle in our legal jurisprudence that legal principles established in decided authorities are not to be applied across board and in all matters without regard for the facts and issues framed for adjudication in a particular case. This point was succinctly made by the Supreme Court in Marine Management Association Inc & Anor Vs National Maritime Consultancy Ltd (2012) 3 NWLR (Pt 1333) 506 at 538A when the Court stated that: "Isolated and general principles of law cannot be relied on solely to determine an issue in a case without looking at the circumstances, facts and merits of each case." The point was reiterated by the Supreme Court in Emeka Vs Okadigbo (2012) 18 NWLR (pt. 1331) 55 where Rhodes- Vivour, JSC stated at page 96 thus: "Facts have no views. A judgment should always be read in the light of the facts on which the case was decided. The rules of stare decisis do not allow Courts to apply the ratio of a case across the board and with little regard to the facts of the case before them." This is because decisions of Courts draw their inspiration and strength from the facts which framed the issues for decision and once such decisions are made they control future judgment in like or similar cases, hence the facts of two cases must either be the same or at least similar before a decision in the earlier case can be used in a later case - Fawehinmi Vs Nigerian Bar Association (No. 2) (1989) 2 NWLR (pt 105) 558, Ndu Vs Onuaguluchi (1999) 11 NWLR (Pt 625) 152, Anaedobe Vs Ofodile (2001) 5 NWLR (Pt 706) 365, Abubakar Vs Nasumu (No 2) (2012) 17 NWLR (Pt 1330) 523. It is my view that the finding of the lower Court that service of the originating processes in this case on the first Appellant through the Secretary of the Kanam Emirate Council is proper was well founded, in the circumstances of this case." (DISSENTING)Per ABIRU, J.C.A. (Pp , Paras. E-E) - read in context

5 UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The Appellants filed this appeal on their dissatisfaction with the decision of the High Court of Plateau State, coram, P. J. Damulak, J. delivered on 22nd June, 2016 in Suit No. PLD/J118/2016. The Respondent as Plaintiff approached the trial Court by way of an Originating Summons seeking interpretation of: (i) Plateau State Legal Notice No. 1 of 1981; (ii) The Plateau State Government views and decision on the Report of the Administrative Committee to review the Definition of some Chieftaincy Institutions in Plateau State; and (iii) A Survey Plan of Kanam LGA showing the Gazetted Areas and Villages Comprising Jahr Chiefdom with a view to determining whether or not the following Village Areas and Wards (i) Gilong Village (ii) Ba'au Ward (iii) Kunsha'am ward (iv) Maje Ward (v) Bagagdi Clan of Kantana Village and (vi) Yam Village all fall within Jahr Chiefdom of Kanam LGA. 1

6 The Appellants did not file a Counter Affidavit to the Originating Summons but rather, they filed a Motion on Notice seeking an order of the trial Court setting aside service of the Originating processes on them and also an order striking out the suit claiming that the suit was commenced wrongly. See pages of the Record. In opposition to the aforesaid Motion on Notice filed by the Appellants, the Respondent filed a Counter Affidavit. See pages of the Record. In response to the Respondent's Counter Affidavit, the Appellants filed a Reply to same. See pages of the Record. After taking arguments on the Appellants Motion on Notice aforesaid the learned trial Judge in a considered ruling dismissed the Application. See pages of the Record. It is against the dismissal of their Motion on Notice that the Appellants filed this Appeal. From the record, certain facts are indisputable and material. These are: (a) That the 1st Appellant was sued at the trial Court in a representative capacity, in his capacity as The Emir of Kanam for Himself and on behalf of The Kanam Emirate of Kanam LG.A. See the Originating Summons on page 2 of the record. 2

7 (b) That the 2nd - 6th Appellants were served with the Originating processes personally and they acknowledged service by endorsing the endorsement and return copy of the Originating Summons. (C) That the 1st Appellant was served with the originating process through his Palace i.e. the Emir of Kanam Palace at Kanam LGC which is also the Head Quarters of the Kanam Emirate Council and same was received by his Secretary i.e. the Secretary of Kanam Emirate one Alh. Mohammed Abdullahi B. See page 2 of the Supplementary Record. Appeal was heard on 27th February, 2018, wherein N. T. Komak Esq., appearing with Nantok Dashuwar Esq., for the Appellants referred to the Appellants Brief of argument filed on 11th April, 2017, and Reply Brief filed on 19th July, 2017, which were deemed properly filed and served on 5th June, 2017 and 28th November, 2017 respectively. He adopted and relied on both processes in urging the Court to allow the appeal. On his own A. N. Musa Esq., who appeared for the Respondent, adopted and relied on the Respondent s brief filed on 4th July, 2017 but 3

8 deemed properly filed and served on 28th November, 2017 in urging the Court to dismiss the Appeal. Judgment was thereafter reserved. Mr. V.M.G. Pwul in the Appellants brief settled by him formulated 2 issues for determination, to wit: 1. Whether the learned trial judge was not wrong when, having found that the 1st appellant was served through one Alhaji Mohammed Abdullahi B, he held that all the appellants were properly served with the Originating Process. 2. Having regard to the contentious nature of the suit of the respondents and the controversial facts in issue, whether the learned trial judge was not wrong when he held that the respondent's case was properly commenced by way of Originating Summons. Dr. H.S. Ardzard, Respondent s counsel also distilled 2 issues for determination. The issues are: 1. Whether the learned trial judge was right in holding that all the Appellants were properly served with the Originating Process in the Suit. 2. Whether the learned trial Judge was right in holding that the Respondent's case was properly commenced by way of Originating Summons. 4

9 The two sets of issues formulated by the counsel for the parties are the same in different words. The Respondent s issues are more elegantly framed, so I shall adopt the issues as distilled by the Respondent s counsel in determining the appeal. SUBMISSIONS ON ISSUE 1 Whether the learned trial judge was right in holding that all the Appellants were properly served with the Originating Process in the Suit. Mr. Pwul learned counsel for Appellants referred to page 133 of the record where the learned trial Judge in its decision held that the 1st Appellant was served through one Alhaji Mohammed Abdullahi B., and then proceeded to hold that that amounted to proper service of the Originating Summons on the 1st Appellant. He submitted that the position of the trial Court in the referred page of the record is totally unsupported by the trite position of the law as regard service of originating processes. He relied on: ORDER 12 RULE 2 OF THE PLATEAU STATE (CIVIL PROCEDURE) RULES 1987; MADUKA VS. UBAH (2015) 11 NWLR (PT. 1470) 201 AT

10 The learned counsel contended that the Plateau State High Court (Civil Procedure) Rules 1987, provides in clear and certain terms that an Originating process must be served personally by delivering the copy on the person to be served, save otherwise, leave of the Court had been sought and granted for substituted service. He invited the Court to note that, from the facts as borne out by the record of the trial Court, the originating summons was not personally served on the 1st Appellant, it was served on one Alh. Mohammed Abdullahi B., without the leave of the trial Court first sought and granted for substituted service. He submitted that the failure to comply with the provisions of Order 12 Rules 2 &5 of the Plateau State (Civil Procedure) Rule 1987 invalidates the service of the originating process on the Appellants and affects the jurisdiction of the trial Court to entertain the suit. He referred to: C. G. G. (NIG.) LTD. VS. AMINU (2015) 7 NWLR (PT. 1459) 577 AT , PARAS. H-B; where the Supreme Court pronounced on the effect of failure to serve Court processes where service of the same is required. He also cited: MADUKOLU & ORS. VS. NKEMDILIM (1962) 2 NSCC 6

11 P. 374; (1962) 2 SCNLR 341, where the Supreme Court per Bairamain, F. J. made observation on jurisdiction and competence of a Court. He reproduced his Lordship holding on when a Court is said to be competent. Mr. Pwul submitted that in the instant appeal, the suit before the trial Court was not initiated by due process of law, and upon fulfilment of proper service of the originating process as a condition precedent to the exercise of jurisdiction by the trial Court, and as such ought to be set aside. He therefore urged the Court to resolve the issue in favour of the Appellants and allow the appeal. In response and for the Respondent, Dr. Ardzard submitted that coupled with the fact that the 1st Appellant is a traditional ruler of 1st class status, he was sued in his representative capacity, and as such service of the originating summons on him through the secretary of his palace and in his palace at Kanam LGC tantamount to personal service. The learned counsel contended that the 1st Appellant belongs to a class of persons on whom service of Court process on their office or on them through their office is taken as personal service. 7

12 He relied on: ADAMU VS. AKUKALIA (2008) ALL FWLR (PT. 428) 352 AT PARAS F F; R.S.G.N. VS. SPECIALIST KONSULT (2005) ALL FWLR (PT. 254) 875 AT 893 PARAS E F. On non-service of 2nd to 6th Appellants, the learned counsel for the Respondent referred to paragraph 3 (c) of the Respondent s counter-affidavit to the motion on notice of the Appellants challenging the validity of service of the originating process on them contained on page 147 of the Record. He noted that the Appellants did not file a Counter Affidavit to deny these vital facts. He urged the Court to hold that the Appellants have admitted these facts. He cited: LAWSON - JACK VS. S.P.D.C. (NIG) LTD. (2002) FWLR (PT. 120) 1697 AT 1710 PARAS A; OYEKAN II VS. ROSSEK (2010) ALL FWLR (PT. 504) 1473 AT Furthermore, Dr. Ardzard for the Respondent submitted that the decisions in MADUKA VS. UBAH (2015) 11 NWLR (PT. 1470) 201; OKORE VS. C.P.M.B LTD. (2008) 15 NWLR (PT. 1110) 335; and all other judicial decisions the learned counsel to the Appellants relied on in contention of the requirement of personal service of originating processes are inapposite to the case instant in that the 8

13 persons who contested the validity of service of originating processes on them in those cases, unlike the case instant, did not belong to a class of persons on whom it is highly undesirable for the Bailiff of Court to approach directly to effect service of Court processes on them due to the nature of their offices. He added that although the 2nd - 6th Appellants also challenged the validity of service of the originating processes of the trial Court on them in Ground 1 of their Notice of Appeal, they however failed to show to the trial Court the mode of service on them and how such mode of service was not proper. The learned counsel therefore urged the Court to resolve the issue in favour of the Respondent. RESOLUTION OF ISSUE 1 The law is established that service of an originating process, such as Writ of summons, Petition, Originating Motion or Notice of Appeal is fundamental and a precondition to the exercise of jurisdiction by the Court. Where there is no service of such process on a party the Court seized with the case lacks the necessary competence to hear or determine the matter. In the circumstance, even where an appearance has been 9

14 entered, the trial Court has no jurisdiction to entertain the claim and should decline to hear the plaintiff. Any proceedings embarked upon without required service of originating process will amount to nothing. Ordinarily, the form of service required is personal service unless otherwise directed by the Court. In other words, where personal service is required and service is effected otherwise without leave of Court for substituted service, any such service will be void and will not be countenanced by the Court. IHEDIOHA & ANOR VS. OKOROCHA & ORS (2015) LPELR (SC); NATIONAL BANK OF NIGERIA LTD VS. GUTHRIE NIGERIA LTD & ANOR (1993) 3 NWLR (PT. 284) 643; (1993) 4 SCNJ 1; (1993) 24 NSCC (PT. 1) 401; (1993) LPELR 1952 (SC). The Appellant s contention as per paragraphs 4 to 6 of the affidavit in support of motion on notice at pages 86 to 87 of the record is that the Originating Summons filed by the Respondent was not served on them personally. From the contentions of the learned counsel for their respective clients, the examination of the propriety of the service of the Originating summons on the Appellants will be viewed 10

15 from two parts, the 1st Appellant on the one hand and the 2nd to 6th Appellants on the other hand. I will start with the later part. Upon examination of the affidavit of the Appellants in support of their Motion on Notice at the trial Court contained at pages of the record, I observe that the affidavit is bare in particulars as there is no deposition on the mode of service on them and how the service of the Originating Summons on the 2nd to 6th Appellants was not proper. It does appear that the 2nd to 6th Appellants expected the trial Court to speculate on the mode of service of the originating process on them, but unfortunately the Supreme Court has barred the Courts in this land from indulging in speculation. ARCHIBONG VS. STATE (2006) ALL FWLR (PT. 323) 1747 AT 1773; AGBI VS. OGBEH (2006) ALL FWLR (PT. 329) 941 AT 986. Where as in this case the Appellants merely stated in paragraph 4 of their affidavit that they were not personally served with the Originating Summons without stating how or in what manner the originating process was served on them, the Appellants claim that they were not served personally, in my view is a mere assertion 11