(2018) LPELR-44008(CA)

Transcription

1 BLUEBAY GLOBAL CONCEPTS LTD & ANOR v. CITY VIEW ESTATES LTD CITATION: In the Court of Appeal In the Abuja Judicial Division Holden at Abuja ON TUESDAY, 6TH FEBRUARY, 2018 Suit No: CA/A/301/2016 EMMANUEL AKOMAYE AGIM TANI YUSUF HASSAN MOHAMMED MUSTAPHA Before Their Lordships: Between 1. BLUEBAY GLOBAL CONCEPTS LIMITED 2. AHMED ADEWUSI CITY VIEW ESTATES LIMITED And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s) 1. 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 settled that issuance and service of Court processes are basic and fundamental and conditions precedent to the exercise of the Court's jurisdiction. The purpose of the issuance and service of Court processes on a party is to bring the processes to the party's notice and give the party an opportunity to react to the processes, any defect would amount to a breach of the affected party's right to fair hearing and would render the proceedings a nullity. See B. B. Apugo & Sons Ltd vs O.H.M.B. (2016) 13 NWLR (part 1529) 206 at 219; Skenconsult (Nig.) Ltd vs Ukey (1981) 1 SC 6 and Adegoke Motors Ltd Vs Adesanya (1989) 3 NWLR (part 109) 250."Per HASSAN, J.C.A. (Pp , Paras. C-A) - read in context

2 2. PRACTICE AND PROCEDURE - SERVICE OF COURT PROCESS(ES): Proper mode of service of processes on a Company "With regard to the submissions of learned counsel for the appellant on failure of the respondent to comply with Order 11 Rules 5 and 8 of the High Court of Federal Capital Territory (Civil Procedure) Rules I have considered Order 11 Rules 5 and 8. Rule 5 of Order 11 provides: 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)... b)... c)... d)... e)... f) Courier Service or any other means convenient to the Court. Order 11 Rule 8 reads: "When a suit is against a corporate body authorized to sue and be sued in its name or in the name of an officer or trustee, the document may be served, subject to enactment establishing that corporation or company under which it is registered as the case may be, by giving the Writ or document to any director, secretary or other principal officer or by leaving it at the corporate office." Section 78 of Companies and Allied Matters Act Cap 59 LFN, 1990 provides: "A Court process shall be served on a Company in the manner provided by the Rules of Court. Any other document may be served on a Company by leaving it at, or sending it by post to, the registered office or head office of the Company." Section 78 of the Companies and Allied Matters Act prescribes that service of processes on a company complies with the rules of the particular Court prevailing in the jurisdiction, which in the instant case is Order 11 Rule 8 of the Federal Capital Territory High Court (Civil Procedure) Rules, The said Rule 8 provides that a Writ may be served, when the suit is against a corporate body authorized to sue or be sue in its name or in the name of an officer or trustee, subject to enactment enabling that corporation or company under which it is registered as the case may be, by giving the Writ or document to any director, secretary or other principal officer or by leaving it at the corporate office. The appellant's counsel has a misconception of the application of Order 11 Rule 8 on personal service. While the mode of service under the Act could be restrictive, Rule 8 Provided that personal service could be effected provided it is carried out within the jurisdiction of the Court and effected on the appropriate designated officers. The position in the instant case is that the service was to be effected outside the jurisdiction of the Federal Capital Territory. The provisions of Rule 8 are plain and unambiguous and do not stipulate as contended by the appellant that service of Court processes as in instant case must be personal. The provisions must be construed in their natural meaning. See N.B.C. Plc Vs Ubani (2014) 4 NWLR (part 1398) 421; University of Lagos & Ors Vs Olaniyan (1985) 1 NWLR (part 1) 156 and Mobil Oil Vs IAL 36 Inc. (2000) 6 NWLR (part 659) 146. In the instant case by an order of Court, the respondent caused the writ of summons, the statement of claim, witness statement on oath, Motion on Notice and other processes to be served at the registered office of the 1st appellant in Lagos by courier (DHL), which the appellant submitted that no reason was shown for failure for personal service before effecting a substituted service. At this stage it is necessary to refer to paragraphs 4(b) and 5 of the affidavit in support of the application for substituted service. Paragraph 4(b)- That the defendant's Company does not have any address within the Federal Capital Territory to serve the Writ of Summons, the statement of claim, witness statement on oath, Motion on Notice and other processes in this suit on them. Paragraph 5 - There is need to serve the writ of summons, the statement of claim, witness statement on oath, Motion on Notice and other processes in this suit outside the jurisdiction of the Federal Capital Territory by courier service particularly at No. 3 Ikenna Street, Ikate, Surelere Lagos State. The respondent's affidavit show the desirability for service by courier to be effected on the 1st appellant, contrary to the appellant's submission that no reason was shown in the affidavit. I am however in agreement with learned counsel for the respondent that the relevant law and Rules of Court applicable in this case are Section 78 of CAMA and Order 11 Rule 8 of FCT High Court (Civil Procedure) Rules, 2004 which have been duly complied with. The Additional Record of Appeal filed on 8/12/2017 and deemed properly filed on 11/12/2017 contained therein a copy of the service by courier (DHL), of the originating processes dated Monday 16/5/2016 by giving same to Tunji Idowu the General Manager of the 1st appellant's company at 11:53 am which he duly signed as reflected at pages 2-3 of the additional record. The affidavit of service by the bailiff is at page 4 of the additional record. It is settled law that an affidavit of service by a bailiff is prima facie evidence of service. See Mgbenwelu vs Olumba (2017) 5 NWLR (part 1558) 169 at 174. There is clearly a statutory and honest duty required of a bailiff effecting substituted service of Court process to serve it in accordance with the order of Court. There is a compliance of that statutory duty by the bailiff in the instant case. More so both Rule 8 and Section 78 CAMA provide for service by courier and by posting."per HASSAN, J.C.A. (Pp , Paras. A-B) - read in context

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4 TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of the Federal Capital Territory, Abuja delivered on the 4th day of May, 2016 in Suit No. FCT/HC/CV/1556/2016, by Justice A. I. Kutigi. The Respondent as plaintiff at the Lower Court by a Writ of Summons and Statement of Claim dated 18th April, 2016 and filed on 22nd of April, 2016 claims jointly and severally against the defendants (appellants herein) as follows: 1. A declaration that the Defendants' mobilization of Bulldozers and people to portion of the plaintiff s land situate on Plot DN2 Cadastral Zone C08, Dakwo District, Abuja measuring about 100 hectares constitutes trespass. 2. A declaration that the Defendants' trespass on the plaintiff's land situate on plot DN2 Cadastral Zone CO8, Dakwo District, Abuja is illegal, unlawful, malicious, reckless, mala fide and unjust. 3. A declaration that the plaintiff is the rightful allottee of the entire land known as plot DN 2 Cadastral Zone C08, Dakwo District, Abuja measuring about hectares vide the development lease dated 31st October, 2002 and 1

5 duly registered at Federal Capital Territory Deed Registry at No. 90 page 90, Vol. 15 MJSC. 4. A declaration that the Development lease agreement duly executed between Ministry of Federal Capital Territory and the plaintiff City View Estate Limited (Formerly Modular limited on the 31st day of October, 2002 in respect of plot DN2, Cadastral Zone C08 Dakwo District Abuja measuring hectares still subsists. 5. A declaration that the purported allocation or reallocation of a portion of the said hectares earlier granted the plaintiff as either plot 10 or plot 10 X to the 1st Defendant being part of plot DN2, Cadastral Zone C08 Dakwo District Abuja despite the subsistence of the plaintiffs right and allocation and the said Development lease agreement is null and void. 6. A declaration that the plaintiff has superior title and is entitled to a peaceful and quiet enjoyment and possession of the entire land referred to as plot DN2 Cadastral Zone COB Dakwo District Abuja measuring hectares. 7. A declaration that the demolition of the plaintiff's houses, structures slabs and DPC at the phase 4 portion of City View Estate situate 2

6 on plot DN2 Cadastral Zone C08 Dakwo District, Abuja by the Defendants and their agents is illegal, unlawful, malicious, reckless, mala fide and unjust. 8. Specific damages in the sum of N40,095, (Forty million, ninety five thousand naira only) against the Defendants representing the cost and value of the 20 units of DPC and structures belonging to the plaintiff on the portion referred to as phase 4 of the estate illegally demolished by the Defendants. 9. General damages in the sum of N200,000,000.00k (Two hundred million naira only) against the Defendant for trespassing on the plaintiff's property/land and unlawfully demolishing about 20 units of the plaintiff's properties at various levels from DPC and substructures at window sills in the estate. 10. A perpetual injunction restraining the Defendants by themselves, their servants, agents and successors in title either directly or indirectly or in concert with any other person or agency from trespassing' from entering, defacing, demolishing or interfering with the land situate at plot DN2, Cadastral Zone CO8 Dakwo District, Abuja FCT or any part of it as granted to the plaintiff

7 Legal cost of this action incurred by the plaintiff in the sum of N1,000,000.00k (one million naira only) % interest per annum on the judgment sum from the date of judgment until the final judgment debt is liquidated by the Defendants The Defendants (as appellants herein) filed a memorandum of conditional appearance on 17th May, The Respondent (plaintiff/therein) by a Motion Exparte dated 18th day of April, 2016 and filed on 22nd April, 2016 prayed the Lower Court for the following orders: 1. Leave of this Honourable Court to issue and serve the 1st Defendant the Writ of Summons, the Statement of Claim, witness statement on Oath, Motion on Notice and other processes in this Suit at No. 3 Ikenne Street, Ikate, Surelere, Lagos outside the jurisdiction of the High Court of the Federal Capital Territory. 2. An order to serve the 1st Defendant by courier service (DHL) or any other Courier Service Company convenient to the Court. 3. An order to serve the 2nd Defendant by posting/pasting the processes at the address at plot 10 within plot DN2 (City View Estate) Cadastral Zone C08 Dakwo District, Abuja. 4. And for such 4

8 other order(s) as the Hon. Court may deem fit to make in the circumstances. The motion exparte is supported by eight paragraph affidavit deposed to by one David Chizoba Iwe Esq of No.21 Ajose Adeogun Street, Utako Abuja, a counsel in the chambers of Igwe & Igwe Attorneys, Solicitors to the plaintiff in this case, and also a written Address in support of the Motion Exparte. On the 4th day of May, 2016 the trial Court in its Ruling, ordered as follows: 1. That leave is hereby granted to the Applicant to issue and serve the 1st defendant with the Writ of Summons, Statement of Claim, witness statement on oath, motion on notice and other processes in this Suit at No. 3 Ikenne Street, Ikate, Surulere, Lagos outside the jurisdiction of this Honourable Court. 2. That the 1st defendant shall be served by courier service (DHL). 3. That the 2nd defendant shall be served by substituted means to wit: by pasting the processes at Plot 110 within Plot DN2 (City View Estate) Cadastral Zone C08 Dakwo District, Abuja. Dissatisfied with the Ruling of the trial Court, the appellants appealed to this Court. The Notice of Appeal dated 16th

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10 May, 2016 was filed on the 17th of May, The sole ground of appeal with its particulars read: GROUND ONE The trial Court erred in law when it granted an application for substituted service of Court processes on the 1st appellant by courier service (DHL). PARTICULARS OF ERROR a) The appellant is a body corporate. b) The manner of service of Court processes on a body corporate is as provided by the company and Allied Matters Act and Rules of Court. c) Order 11 Rule 8 of the High Court of the FCT (Civil Procedure) Rules stipulates modes of service of Court processes on a corporate body which rule does not contemplate service by substituted means. d) The 1st appellant being a body corporate cannot be served by substituted means. The appellant's brief dated and filed on 15/7/2016 was settled by Chidi Nwankwo, Esq. A sole issue was distilled for determination as follows: "Was the learned trial judge wrong when he gave an order that the 1st appellant a body corporate, be served originating processes by substituted means through DHL Courier Service?" (Ground 7) The Respondent's brief dated 6th December, 2017 was 6

11 filed on 7th December, 2017 and deemed properly filed on 11th December, The brief settled by Casmir C. Igwe also has a sole issue for determination which reads: "Whether or not the service of the originating processes on the 1st appellant's Company effected on its General Manager, Tunji Idowu at the Company s registered office through DHL Courier Service is not good and proper service". I shall be guided by the appellant's issue in resolving the appeal. ISSUE ONE "Was the learned trial judge wrong when he gave an order that the 1st Appellant, a body corporate, be served originating processes by substituted means through DHL Courier Service?" The appellant in contending that the order for substituted Service is fundamentally flawed as it is neither supported by the facts nor any known law, referred to Order 11 Rule 5 of the High Court of the FCT (Civil Procedure) Rules, 2004, where circumstances under which an order for substituted service of processes can be made. That Order 11 Rule 5 is to the effect that an applicant for an order of substituted service must show any reason why personal service cannot be conveniently 7

12 effected. Paragraphs 4(a) (b) and (c) and 5 of the applicant's affidavit in support at page were referred to. That the appellant does not have any address within the Federal Capital Territory to serve the Writ of Summons Statement of claim and other processes is not tenable in law as the 1st appellant being a company can only be served at its registered office and not in the branch office. The Court was referred to Kraus Thomas Organization Ltd vs University of Calabar (2004) 9 NWLR (part 879) 631 and Order 11 Rule 8 of the High Court of the FCT (Civil Procedure) Rules, Also referred are the cases of MTN Ltd vs Bolingo Hotels Ltd (2004) 15 NWLR (part 889) 117; Mark Vs Eke (2004) 3 NWLR (Part 865) 54; First Bank of Nigeria Plc vs Onukwugha (2005) 16 NWLR (part 950) 120 at 150 and Section 78 of the Companies and Allied Matters Act It is finally submitted that by the above authorities and Section 78 of CAMA, the Lower Court's order for substituted service against the 1st appellant is not in accordance with the provisions of the law relating to the 1st appellant as a corporate body. We are urged to resolve the issue in favour of the 8

13 appellant against the respondent. In response, the respondent submitted that service of Court processes on a corporate body is governed by the Rules of Court and Section 78 of the Companies and Allied Matters Act, Laws of the Federation of Nigeria, Learned counsel for the respondent referred to Order 11 Rule 8 of the FCT High Court (Civil Procedure Rules) 2004 as the relevant and applicable rule of Court and submitted that a combined reading of Section 78 of the Companies and Allied Matters Act and Order 11 Rule 8, will conclude that service of originating process on a Company must be in accordance with the Rules in the following ways: 1. By giving the Writ or document to any director, secretary or principal officer. 2. By leaving it at the corporate office of the company. The respondent argued that the originating process in the instant case was served by giving the processes to Tunji Idowu, the General Manager of the 1st Appellant's Company at the registered office of the 1st Appellant at No. 3 Ikenne Street Ikate, Surulere, Lagos on May 16, 2016 at 11:43a.m in line with both the rules of Court and the Companies and Allied Matters 9

14 Act. The Court was referred to page 2 and 3 of the Additional Record of Appeal and the cases of Daewoo Nig. Limited Vs Uzoh (2008) All FWLR (part 399) 456 at and Kraus Thomas Organization Ltd Vs University of Calabar (supra) and Order 11 Rule 23 of FCT High Court (Civil Procedure) Rules That the order of Court granting leave to the respondent to effect service on the 1st appellant through DHL courier service in Lagos is in accordance with the rule of Court and Section 78 of CAMA, Submitting further, that the trial Court exercised its discretion judicially and judiciously in line with the rules of Court. Learned counsel for the respondent referred to the case of Mark vs Eke (supra), heavily relied upon by the appellant and submitted that the case is inapplicable and distinguishable from the facts of the instant case. It is finally submitted that the 1st appellant having been served with the originating processes on 16th May 2016 promptly filed a memorandum of conditional appearance before the trial Court. The Court was referred to Chief of Naval Staff vs Edeh (2015) All FWLR (part 796) 452 at 454 ratio 2 and we are urged to 10

15 dismiss the appeal. The complaint of the appellant is on the mode of service effected on the 1st appellant, a corporate body. The appellant contended that the order for substituted service on the appellant was not supported by facts or any known law. He referred to Order 11 Rules 5 and 8 of the High Court of FCT (Civil Procedure) Rules, 2004 which provides for reason to be shown why personal service cannot be conveniently effected which the respondent was said to have failed to show in its affidavit in support of the application. The law is settled that issuance and service of Court processes are basic and fundamental and conditions precedent to the exercise of the Court's jurisdiction. The purpose of the issuance and service of Court processes on a party is to bring the processes to the party's notice and give the party an opportunity to react to the processes, any defect would amount to a breach of the affected party's right to fair hearing and would render the proceedings a nullity. See B. B. Apugo & Sons Ltd vs O.H.M.B. (2016) 13 NWLR (part 1529) 206 at 219; Skenconsult (Nig.) Ltd vs Ukey (1981) 1 SC 6 and Adegoke Motors Ltd Vs Adesanya 11

16 (1939) 3 NWLR (part 109) 250. With regard to the submissions of learned counsel for the appellant on failure of the respondent to comply with Order 11 Rules 5 and 8 of the High Court of Federal Capital Territory (Civil Procedure) Rules I have considered Order 11 Rules 5 and 8. Rule 5 of Order 11 provides: 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). b). c). d). e) 12

17 . f) Courier Service or any other means convenient to the Court. Order 11 Rule 8 reads: "When a suit is against a corporate body authorized to sue and be sued in its name or in the name of an officer or trustee, the document may be served, subject to enactment establishing that corporation or company under which it is registered as the case may be, by giving the Writ or document to any director, secretary or other principal officer or by leaving it at the corporate office." Section 78 of Companies and Allied Matters Act Cap 59 LFN, 1990 provides: A Court process shall be served on a Company in the manner provided by the Rules of Court. Any other document may be served on a Company by leaving it at, or sending it by post to, the registered office or head office of the Company. Section 78 of the Companies and Allied Matters Act prescribes that service of processes on a company complies with the rules of the particular Court prevailing in the jurisdiction, which in the instant case is Order 11 13

18 Rule 8 of the Federal Capital Territory High Court (Civil Procedure) Rules, The said Rule 8 provides that a Writ may be served, when the suit is against a corporate body authorized to sue or be sue in its name or in the name of an officer or trustee, subject to enactment enabling that corporation or company under which it is registered as the case may be, by giving the Writ or document to any director, secretary or other principal officer or by leaving it at the corporate office. The appellant's counsel has a misconception of the application of Order 11 Rule 8 on personal service. While the mode of service under the Act could be restrictive, Rule 8 Provided that personal service could be effected provided it is carried out within the jurisdiction of the Court and effected on the appropriate designated officers. The position in the instant case is that the service was to be effected outside the jurisdiction of the Federal Capital Territory. The provisions of Rule 8 are plain and unambiguous and do not stipulate as contended by the appellant that service of Court processes as in instant case must be personal. The provisions must be 14

19 construed in their natural meaning. See N.B.C. Plc Vs Ubani (2014) 4 NWLR (part 1398) 421; University of Lagos & Ors Vs Olaniyan (1985) 1 NWLR (part 1) 156 and Mobil Oil Vs IAL 36 Inc. (2000) 6 NWLR (part 659) 146. In the instant case by an order of Court, the respondent caused the writ of summons, the statement of claim, witness statement on oath, Motion on Notice and other processes to be served at the registered office of the 1st appellant in Lagos by courier (DHL), which the appellant submitted that no reason was shown for failure for personal service before effecting a substituted service. At this stage it is necessary to refer to paragraphs 4(b) and 5 of the affidavit in support of the application for substituted service. Paragraph 4(b)- That the defendant s Company does not have any address within the Federal Capital Territory to serve the Writ of Summons, the statement of claim, witness statement on oath, Motion on Notice and other processes in this suit on them. Paragraph 5 - There is need to serve the writ of summons, the statement of claim, witness statement on oath, Motion on Notice and other processes in this suit outside 15

20 the jurisdiction of the Federal Capital Territory by courier service particularly at No. 3 Ikenna Street, Ikate, Surelere Lagos State. The respondent's affidavit show the desirability for service by courier to be effected on the 1st appellant, contrary to the appellant's submission that no reason was shown in the affidavit. I am however in agreement with learned counsel for the respondent that the relevant law and Rules of Court applicable in this case are Section 78 of CAMA and Order 11 Rule 8 of FCT High Court (Civil Procedure) Rules, 2004 which have been duly complied with. The Additional Record of Appeal filed on 8/12/2017 and deemed properly filed on 11/12/2017 contained therein a copy of the service by courier (DHL), of the originating processes dated Monday 16/5/2016 by giving same to Tunji Idowu the General Manager of the 1st appellant's company at 11:53 am which he duly signed as reflected at pages 2-3 of the additional record. The affidavit of service by the bailiff is at page 4 of the additional record. It is settled law that an affidavit of service by a bailiff is prima facie evidence of service. See Mgbenwelu vs Olumba (2017) 16

21 5 NWLR (part 1558) 169 at 174. There is clearly a statutory and honest duty required of a bailiff effecting substituted service of Court process to serve it in accordance with the order of Court. There is a compliance of that statutory duty by the bailiff in the instant case. More so both Rule 8 and Section 78 CAMA provide for service by courier and by posting. The sole issue is resolved in favour of the respondent against the appellants. The appeal lacks merit and it is dismissed. The Ruling of the trial Court is affirmed. N100,000.00k costs for respondent against the appellants. EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, TANI YUSUF HASSAN, JCA. I agree with the reasoning, conclusions and orders therein. MOHAMMED MUSTAPHA, J.C.A.: I read a draft copy of the judgment just delivered by my learned brother, Tani Yusuf Hassan, JCA. I agree with the reasoning and conclusion therein, resolving the sole issue against the appellants. I also dismiss the appeal for lack of substance; and abide by the consequential 17

22 orders made in the lead judgment. 18

23 Appearances: Chidi Nwankwo with him, K. Orji, S. Okoye, L. Nwokolo, R. Uba and C. C. Igwe For Appellant(s) Mrs. N. Casmir with her, Ismaida Yazid For Respondent(s)