RULING ON NOTICE OF PRELIMINARY OBJECTION. The applicant by a preliminary objection dated 5/4/13 moved the court to:

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1 IN THE HIGH COURT OF JUSTICE FEDERAL CAPITAL TERRITORY OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT LUGBE ABUJA ON, 17 TH OCTOBER, BEFORE HIS LORDSHIP:- HON. JUSTICE A. O. OTALUKA. SUIT NO.:- FCT/HC/CV/3314/12 MOTION NO.:- FCT/HC/M/6019/13 BETWEEN: PARLIAMENTARY HILL ESTATE & PROPERTY LIMITED:...PLAINTIFF/RESPONDENT AND DUBRICKS NIGERIA LIMITED:...DEFENDANT/APPLICANT C.M. Nwankwo holding brief for Oduwole for the defendant. Plaintiff not represented. RULING ON NOTICE OF PRELIMINARY OBJECTION. The applicant by a preliminary objection dated 5/4/13 moved the court to: a) Set aside the order of interlocutory injunction granted on 5/3/13. b) Decline jurisdiction to entertain or further entertain this suit. c) Strike out this suit in its entirety in time. He stated 20 grounds for this preliminary objection and 28 paragraphs affidavit. In his address, he raised two issues for determination. 1) Whether the suit was initiated by due process of law. 2) Whether the order of injunction is liable to be set aside or discharged for non service on the defendant. 1

2 In respect of issue one, learned counsel argued extensively that failure of the plaintiff to comply with the mandatory provisions of the law in respect of service has deprived the court of jurisdiction to entertain the suit. He argued that the plaintiff had basically two writs of summons issued on the 14/5/12 and 12/6/12 and the later was endorsed for service out of jurisdiction. Placing reliance on A. V. G.C.D.N. 2 S.P.A. (2011) 4 NWLR (pt 227, he urged the court to hold that the writ of summons was a nullity having not obtained leave of court to serve it. Learned counsel further relied on Or 97 of the Sherriff s and Civil Process Act and the cases of Bello v. National Bank of Nigeria Ltd (1992) 6 NWLR (pt 246) 206 and Owners of the MV Arabella v. N.A.I.C. (2008) 11 NWLR (pt 182. Learned counsel argued and urged the court to hold as having been established that the writ of summons filed on 14/5/12 is incompetent and subsequent applications granted thereafter are nullity Mcfoy v. UAC (1961) 3 WLR PC 1405 and NNB PLC v. Denclap (2005) 4 NWLR (pt 916) 549. Where a court s process is fundamentally defective ab initio, it is incompetent does not exist. In respect of the 2 nd issue, learned counsel relying on the above submissions, urged the court to hold that the jurisdiction of the court is robbed and therefore, the injunction granted was devoid of any jurisdiction. Tomtec Nig Ltd v. FHA (2009) 12 SC (pt 111) 123. Furthermore, he argued that the non appearance of the defendant at the hearing of the motion was as a result of nonservice. He urged the court to discountenance the certificate of service based on the counter-affidavit challenging the content and deposition of such affidavit of service UBA PLC v. Effiong (2011) 16 NWLR (pt 1272) 84. 2

3 The applicant further contested that the address of service was not a registered office, or branch office, or place of business of the defendant. Therefore, none service of process on a party makes the proceedings null and void. Learned counsel urged the court to up hold the preliminary objection. In response, the plaintiff raised a 31 paragraph counter-affidavit and a written address. He raised 5 issues for determination. 1) Whether the defendant can bring an application of this sought before this court when it has failed to file its Statement of Defence. 2) Whether the defendant who accepted service and acknowledged the same as its address in Abuja can now reprobate after approbating. 3) Whether the defendant can successfully bring this application when the order of this court that granted the plaintiff leave to serve the defendant within jurisdiction has not been set aside. 4) Whether this application is not an attempt to make the trial court sit as an appellate court over its own judgments. 5) Whether the plaintiff commenced this suit by due process of the law. On issue 1, the plaintiff/respondent argued that the defendant was demurring having not filed a defence. Or 22 r 1 & 2. On issue 2, that the defendant having accepted service cannot be heard to approbate and reprobate, the rule of equity would not allow that. A.G. Lagos State v. Purification Tech Nig Ltd (2003) 16 NWLR (pt 845). Learned counsel also referred the court to paragraph 7, 8, 9 & 10 of the plaintiff s counter-affidavit indicating how he got information as to the address of service on the defendant. He urged the court to hold that by the service on the said Adetola Olulenu as secretary to the company that it was good service 3

4 (Adetola Olulenu in his affidavit dated 15/4/13 rebutted having received any service). Learned counsel placed reliance on the case of Chibuzor v. Tukur (2007) All FWLR (pt 354) 394, held...the personal appearance in court of a party served with a process of court is evidence of service, good enough to meet the requirement of the rules. Further, reliance was placed on the case of Panicle Communication Ltd v. Alkhomu (1994) 2 NWLR (pt 327) 420. On the 3 rd issue, learned counsel argued and submitted that the order of the court is still valid and subsisting even where the court lacked the jurisdiction until set aside N.I.W.A. v. S.P.D.C. (Nig) ltd (2007) All FWLR (pt 361) On the 4 th issue, learned counsel submitted that the court having held the writ of summons and all other process as remaining valid, the court cannot sit as an appellate court over its rulings. And the court should so hold. Ali v. Ayinde (2010) All FWLR (pt 540) On the 5 th issue, learned counsel submitted that the writ of summons was properly issued on 12/6/13, stamped by the registrar. And the defendant/respondent was duly served with hearing notices. And he urged the court to hold that the jurisdiction of the court was rightly ignited and therefore, the application should be dismissed. On reply on points of law by the defendant/applicant, the applicant persuaded the court to hold that the plaintiff has failed to show that it followed due process. Thus the writ of summons is incompetent and subsequent orders are incompetent. 4

5 COURT: Having patiently heard the protracted and voluminous arguments of both counsel, this court will consider all issues raised as it writes its ruling. Issue of existence of two writs of summons. There is only one writ of summons with suit No. CV/3314/12 which was issued and re-issued on 12/6/12 for service outside jurisdiction by the registrar of the court. Therefore, there is no two writ of summons in existence. Prior to the court s order of 12/6/12, the only act committed by the plaintiff was the filing of the writ of summons on 14/5/12. And what was issued was reissued on the 12/6/12 in respect of the same suit/matter, CV/3314/12. In other words, there is always been one writ of summons. There was no need to re-file. Reference is to Or 4 r 1(1). The suit actually commenced on 12/6/12 in effect, when the registrar issued the writ pursuant to the court s order. And it is in this regard that this court reiterates that the suit still remains valid. It is to be well noted that filing is different from issuance. Filling is the payment and the issuance is the endorsement by the registrar. You do not give leave to file. What is required pursuant to Or 4 r 6 is leave to issue a writ of summon outside jurisdiction. Though it is noted that the registrar issued writ of summon on 14/5/12 such issuance in the court s view does not invalidate the filing. It would only mean that the issuance by the registrar on 14/5/12 was incompetent because it was effected without an order of the court. Such an incompetence is with prejudice to the filing which this court has noted in its ruling that the writ of summons remains valid. The issuance of the writ of summons on 12/6/12 was made pursuant to the order of this court. That alone fulfils the requirements under Or 4 r 6. It is conceded that the writ of summons ought to have been endorsed for service outside jurisdiction. However, this requirement seems to have been over taken by the application for leave to serve at Abuja address which was duly granted by 5

6 this court. It is needful to restate that Or 11 r 8 which allows for service within jurisdiction has been accorded judicial interpretation. See Palmbeach Ins. V. Bruhns (1997) 9 NWLR 85. In the light of this decision, can it be said that leave ought to be obtained for service of the writ of summons within jurisdiction even though the writ of summon reflects the service outside jurisdiction? I think not. And I say No. Where the rules provided for service at the corporate office of a company or at a place where it is conducting its business within jurisdiction, and service is effected at that corporate office. The application for leave to issue same outside jurisdiction is needless as in the instant case. Again, the bailiff s purported service was proper by leaving the process on the address he was instructed to serve the process. But then, this court cannot shut its eyes to the conflicting affidavit evidence before it. In the affidavit in support of this preliminary objection, Timiedu Emuren, the General Manager of the defendant averred in paragraph 7, 8, 20, 21 and 23 (v) to the effect that, No 6 Yele St. behind Zenith Bank PLC Wuse Abuja is not the office of the defendant. It is further averred by Adetola Olulenu who is not a member of the defendant s company, nor was he instructed/briefed to provide legal representation or accept service on behalf of defendant that 6 Yele St is not the address of the defendant. On the contrary Nnamdi Iwuagwu, Esq, in his 31 paragraph counter-affidavit dated 5/513 averred in paragraph 7 that he was informed by the plaintiff who discovered that he Adetola Olulenu Esq, is the company secretary/solicitor and that the company s Address is 6 Yele St. Wuse. See paragraphs 7 and 8, where it was averred that the said Adetola directed his personal assistant to receive process. Flowing from the conflicting affidavit evidence the purporting service or the validity of service at 6 Yele St is questionable. The spill over effect of the conflicting evidence is whether service was effected at a place where the defendant is carrying out his business or his branch office? 6

7 This court is inclined to believe the evidence of Timiedi Emuren in view of the fact that she is described as the General Manager (not controverted) of the defendant company. Hence she is likely to have personal knowledge of the running of the defendant s business. Besides paragraph 7 of the counteraffidavit of Mr Iwuagwu amounts to hearsay in view of the fact that the deponent is relying on the information given to him by the plaintiff about Adetola, Esq. Such evidence is unreliable. His evidence as regards the company s address and the secretary is unreliable and therefore, it is discountenanced by this court. Besides the deponent Nnamdi Iwuagwu is an instructed solicitor of the plaintiff, ordinarily the court says time without number that counsel should not depose to affidavit in respect of facts which are exclusively within the knowledge of their clients. It is no longer unsettled that when there are two conflicting affidavit that the court is required to believe one and state its reasons. The reasons for accepting the testimony of the (GM) Timedi Emuren has been noted in this ruling. To resolve this conflict, I hold that the defendant does not operate its business at 6 Yele St; hence it cannot seek refuge under Or 11 r 8, therefore, service was not properly effected. However I would not fail to comment on the untoward attitude of the applicant s counsel, but these are lessons for another day. Consequently, the proceedings in this suit is a nullity as it is not predicated on a valid service of the writ of summons. Issue one is answered in the negative. I hold that this process was though initiated by due process but there was no valid service on the defendant. So this court lacks jurisdiction. Madukolo v. Nkudili case, Mcfoy v. UAC (supra), Skenconsult Nig Ltd v. Ukey (1981)1 S.C. 208, Owners of the Mv Arabella v. N.A.I.C. (supra), N.N.B. PLC v. Denclag (2005) NWLR

8 By the affidavits of the applicant, it is obvious that service was effected on a wrong address and on the wrong person. Therefore, service could not have been acknowledged by the defendant. Adetola Olulenu did not admit being the secretary of the company. Considering the issue of whether this court is sitting as an appellate court over its own decision its my view that the application before the court was brought on protest with respect to a fundamental issue of improper service and as lord Dening held in Mcfoy v. UAC, supra you cannot build something on nothing and expect it to stand. In this case, the process was valid but there was no service. Having said these, the court will not ignore to comment on issue of demurrer raised by the plaintiff counsel. It is a standing principle that applicant/defendant must plead and in the course of pleading the applicant/defendant must contend that accepting all facts pleaded to be true the plaintiff has no locus. But as already shown in plethora of cases, the issue of jurisdiction is not a matter for demurer proceedings. It is much more fundamental and it involves what will enable the plaintiff to seek hearing in court and his grievance resolved. Where the defendant discovers that the claim of the plaintiff does not give the court any jurisdiction, the defendant can raise a preliminary objection without filing a defence because jurisdiction must be established before hearing a suit. The order of the court on 17/10/12 was for plaintiff to effect proper service on the defendant, where there was no such service or improper service, the defendant/applicant has a right to still demur questioning the jurisdiction of the court. And that is what happened in the instant case. See the case of NDIC v. CBN (2002) 7 NWLR (pt 766) 272, where Supreme Court distinguished between Demurer and objection to jurisdiction. Having resolved all issues raised by both parties, the court holds that it lacks jurisdiction to further entertain this suit. It 8

9 follows that all proceedings inclusive of the order of injunction dated on the 5/3/13 is also a nullity. The order of injunction ought to be set aside and it is hereby set aside and the suit CV/3314/12 is hereby struck out. HON. JUSTICE A. O. OTALUKA 17/10/

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