(2021) Legalpedia (CA) 15659
In the Court of Appeal
HOLDEN AT LAGOS
Sunday, January 31, 2021
Suite Number: CA/L/989/2014
|OBANDE FESTUS OGBUINYA
UGOCHUKWU ANTHONY OGAKWU
GABRIEL OMONIYI KOLAWOLE
|LAGOS NURTW (FIRST BRT) COOPERATIVE SOCIETY LIMITED
LAGBUS ASSET MANAGEMENT LIMITED
AREA(S) OF LAW
INTERPRETATION OF STATUTE
JUDGMENT AND ORDER
LAW OF CONTRACT
PRACTICE AND PROCEDURE
LAGBUS ASSET MANAGEMENT LIMITED
SUMMARY OF FACTS
Sometime in 2008, there was an unwritten bus lease contract between the Respondent, a registered agency of the Lagos State Government, and the Appellant, a registered Association/Cooperative Society, to operate bus under the BRT scheme midwifed by the Lagos State Government to provide modern mass transportation services to commuters on segregated lanes. In that contract, the Respondent leased the 120 Marcopolo Torino Buses (in two batches of 70 and 50) at a monthly rental of N300, 000.00 to the Appellant. The Appellant paid some rentals. Later on, there was a disagreement between the parties over the rentals to be paid and the quality of the last batches of 50 buses. Certain persons/bodies intervened in the dispute. The Respondent alleged that after the reconciliation of account, the Appellant owed it the sum of N194, 181,600million which it refused to pay. Sequel to that, the Respondent sought the High Court of Lagos State, via a writ of summons filed on 25th September, 2012, and tabled against the Appellant the payment of the said sum of N194, 181,600 million and interest thereon. Subsequently, the Respondent filed an application for summary judgment and same was granted. The Appellant filed an application before the lower court, to have the judgment, the writ of summons and other processes set aside. The Respondent filed a counter affidavit and in a considered ruling, the court dismissed the application. Dissatisfied with the decision, the Appellant has appealed to this court praying the court to allow the appeal.
Issues Of Determination
Whether in the circumstances of this case, the Lower Court ought to have set aside the Summary Judgment dated 27th May, 2013 granted in favour of the Respondent for lack of jurisdiction to entertain the Motion on Notice dated 18th March, 2013. Whether the originating processes and other processes in this matter were properly served on the Appellant such as to clothe the Lower Court with jurisdictions to entertain this matter particularly the Motion for Judgment dated 18th March, 2013.
“By way of necessary prefatory remarks, Nigeria operates an adversarial system of adjudication in which service of court process on a party to a proceeding is fundamental. It is service of process that infuses a court with the jurisdiction to entertain a matter. It enables a party to appear before a court without being ambushed. Service of process is sine qua non for hearing of any matter in a court of law in that it vests courts with jurisdiction. It is required in all proceedings save those initiated via ex parte applications. Where service of process is required and there is failure to do so, the order germinating from the proceeding is a nullity and the party affected is entitled ex debito justitiae to have it set aside, see SGBN Ltd. v. Adewunmi (2003) 10 NWLR (Pt. 829) 529;Mark v. Eke (2004) 16 WRN 57/ (2004) 5 NWLR (Pt. 865) 54; Tsokwa Motors (Nig.) Ltd. v. UBA Plc. (2008) 2 NWLR (Pt. 1071) 347;Otu v. ACB Int’l Bank Plc. (2008) 3 NWLR (Pt. 1073) 179; Okoye v. CPMB Ltd. (2008) 15 NWLR (Pt. 1110) 335; C.G.G. (Nig.) Ltd. V. Aminu (2015) 7 NWLR (Pt. 1459) 577; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59 (supra); Ihedioha v. Okorocha (2016) 1 NWLR (Pt. 1492) 147; Apeh v. P.D.P (2016) 7 NWLR (Pt. 1510) 153; Nwadiogbu v. A.I.R.B.DA. (2010) 19 NWLR (Pt. 1226) 364; Uzodinma v. Izunaso (No.2) (2011) 17 NWLR (Pt. 1275) 30; Estate of Late Chief H.I.S. Idisi v. Ecodil (Nig) Ltd. (2016) 12 NWLR (Pt. 1527) 355; B.B. Apugo & Sons Ltd. v. O.H.M.B (2016) 13 NWLR (Pt. 1529) 206; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577) 410; Regd. Trustees, P.C.N v. Etim (2017) 13 NWLR (Pt. 1581) 1; Zakirai v. Muhammed (2017) 17 NWLR (Pt. 1594) 181; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; Adegbola v. Osiyi (2018) 4 NWLR (Pt. 1608) 1; Ezim v. Menakaya (2018) 9 NWLR (Pt. 1623) 113; Fidelity Bank Plc v. The M.T. “Tabore” (2018) 12 NWLR (Pt. 1632) 135; Okeke v. Lawal (2018) 12 NWLR (Pt. 1634) 393; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548; Onwubuya v. Ikegbunam (2019) 16 NWLR (Pt. 1697) 94.
“Hearing notice is a document, which is issued from the court registry, which gives legal notification to parties in a suit the dates on which it would be heard, see Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 157) 480. Service of hearing notice on a truant party ignites the jurisdiction of a court over a matter. Where it is necessary to serve hearing notice, but it is not effected on a party, the court will be robbed/drained of the vires to try or continue to hear an action and any orders flowing from it will be enmeshed in and vitiated by nullity, see John Andy Sons & Co. Ltd. V. Mfon (2007) 4 WRN 173; Mbadinuju v. Ezuka (1994) 10 SCNJ 109; Nasco Mgt. Service Ltd. v. A. N. Amaku Trans Ltd. (2003) 2 NWLR (Pt. 804) 290; Mpama v. FBN Plc. (2013) 5 WLR (Pt. 1346) 177; S & D Const. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487;Apeh v. PDP (supra); NACB Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Ugo v. Ummuna (2018) 2 NWLR (Pt. 1602) 102; Ezim v. Menakaya (supra); ENL Consortium Ltd. v. S.S. (Nig.) Ltd. (2018) 11 NWLR (Pt. 1630) 315; Achuzia v. Ogbomah (supra); NUT, Taraba State v. Habu (2018) 15 NWLR (Pt. 1642) 381.
“It is trite elementary law that the best evidence of proof of service of court process is by dint of affidavit of service sworn to by a bailiff/sheriff of court, or any server of it, specifying: the time, place, date and mode of service, see Val Petroleum Inc. v. Momah (2013) 14 NWLR (Pt. 1374) 284; Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274; Estate of Late Chief H.I.S. Idisi v. Ecodril (2016) 12 NWLR (Pt. 1527) 355; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577) 410; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Onwubuya v. Ikegbunam (2019) 16 NWLR (Pt. 1697) 94; C.M.& E.S. Ltd. v. Pazan Services (Nig.) Ltd. (2020) 1 NWLR (Pt. 1704) 70”.
“In the eyes of the law, to disproof the service, as housed and evidenced in those affidavits of service, the law commands an opponent, who disputes the service, to file affidavit to counter it, see Ahmed v. Ahmed (supra).
“For the sake of completeness, the provision of section 78 of the Companies and Allied Matters Act, Cap. C20, Laws of the Federation of Nigeria, 2004 (CAMA) donates to the Rules of Court the manner of service of court process on a company; see N.B.C. Plc v. Ubani (2014) 4 NWLR (Pt. 1398) 421. By virtue of the prescription of order 7 rule 9 of the High Court Rules, originating process or other processes may be served on company, corporation or body corporate by delivery to its Director, Secretary, Trustee, other senior, principal or responsible officer or by leaving it at its registered, principal or advertised office or place of business within the jurisdiction.
“The service was on its secretary. The hearing notices were served by dropping at the same address. By dropping a process is equivalent to leaving it at a designated address. The law sanctions the mode of dropping a process as a valid method of service, see Okoye v. C.P.M.B. Ltd. (2008) 15 NWLR (Pt. 1110) 335.
“It stems from the foregoing, confirmation of service of the processes on the appellant, that it decided, out of its own volition, to waive the chances availed it to defend the respondent’s action. It was accorded equal treatment, opportunity and consideration with its opponent, the first respondent, in the hearing of the application. It must be underscored, that the duty of the court is to provide the enabling and hospitable environment and grant feuding parties equal chance to present their cases. It is outside the duty of a court to compel a party, served with a process, to attend court. It is, to my mind, decipherable from the decision that the lower court, in an unbiased manner, created a congenial atmosphere for the appellant to ventilate its grievances by proffering defences to the action and the application. It, however, toyed with the opportunity to its peril. In effect, the appellants’ inviolate right to fair hearing was not, in the least, fractured by the lower court. It is, therefore, not available for it to harvest/harness from the sanctuary/vineyard of the beneficent provision of section 36(1) of the Constitution, as amended. In Adebayo v. A –G., Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 221 and 222 the apex court, per Tobi, JSC, admonished: …The fair hearing provision in the constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in case and force the court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. This magisterial pronouncement, in the ex cathedra authority, with due respect, deflates and exposes the poverty of the learned appellants’ counsel’s salivating argument on the point.
“By way of necessary prelude, proceeding under the summary judgment procedure, as exemplified in the above provision, is resorted to where the claims are for only liquidated money demand: a sum that is arithmetically ascertainable without further investigation, see Maja v. Samouris (2002) 7 NWLR (Pt. 765) 78; Wema Sec. & Fin. PLC v. N.A.I.C (2015) 16 NWLR (Pt. 1484) 93; A.T.S. & Sons. v. B.E.C. (Nig) Ltd. (2018) 17 NWLR (Pt. 1647) 1. By its very nature, in summary judgment procedure, which houses undefended list procedure, judgments are given to plaintiffs without taking the defence of defendants, see Macaulay v NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt.144) 283. The purpose of such procedure is to enable a plaintiff to obtain summary judgment without trial where he has a patently clear and reasonable case. It is, however, not designed to shut out a defendant who can show a defence, see Okambah v. Sule (1990) 7 NWLR (Pt.160)/(1990) 11 SCNJ 1; Adebisi Macgregor Ass. Ltd vs. N.M.B Ltd. (1996) 2 NWLR (Pt.431) 378/ (1996) 2 SCNJ; Imoniyame Holdings Ltd vs. Soneb Ent. Ltd (2010) 4 NWLR (Pt. 1185) 561; FMG v. Sani (1990) 4 NWLR (Pt. 1477688); Nwamkwo v. E.D.C.S.U.A (2007) 5 NWLR (Pt.1027) 377.
“In such a proceeding, like the undefended list, a defendant is allowed to file a notice of intention to defend together with an affidavit disclosing a defence on the merit. A defendant’s affidavit must condescend upon particulars and deal specifically and frontally with a plaintiff’s claims and affidavit. It must state clearly what the defence is and whether it is against the whole or part of the claim without necessarily proving same. The primary duty of a trial court, where an action is instituted, is to look at the affidavit with a view to deciphering if a defendant has shown a prima facie defence on the merit or triable issue. Where a defendant has, it transfers the matter to the ordinary/general cause list for hearing on pleadings. If a defendant does not, it shall give judgment to a plaintiff, see Nishizawa Ltd vs. Jethwanj (1984) NSCC Vol. 15 877/(1984) 12 SC 234; Adebisi Macgregor vs. N.M.B Ltd. (supra); Macaulay v. NAL Merchant Bank Ltd. (supra) (2010) 14 NWLR (Pt. 1213) 169; NMCB (Nig Ltd v. Obi (2010) 14 NWLR (pt. 1213) 169; Imoniyame Holdings Ltd v. Soneb Ent. Ltd. (supra) (2007) FNWLR (Pt. 1027) 377; Nwankwo E.D.C.S. (2007) 5 NWLR (Pt. 1027) 377; UBA Plc vs. Jargaba (2007) 11 NWLR (Pt. 1045) 247; UBN PLC. V. Awmar Properties Ltd. (2018) 10 NWLR (pt. 1626) 64; NPA v. Aminu Ibrahim & Co. (2018) 12 NWLR (Pt. 1632) 62; Intercontinental Bank Ltd. v. Brifina Ltd. (2012) 13 NWLR (Pt. 1316) 1; Wema Sec. & Fin. PLC v. N.A.I.C (supra); Amede v. UBA Plc (2018) 6 NWLR (pt. 1614) 29”.
“Jurisdiction, a mantra in adjudication, connotes the authority/power of a court to determine a dispute submitted to it by contending parties in any proceeding, see Ajamole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1;Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodagbe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210;Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1. The case-law categorises/classifies jurisdiction into two facets, videlicet: procedural jurisdiction and substantive jurisdiction. In Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 219, Edozie, JSC, incisively and graphically, declared: It is noteworthy that a distinction must always be drawn between two types of jurisdiction viz – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst the litigant can waive the former, no litigant can confer jurisdiction in the court where the constitution or a statute or any provision of the common law says that the court shall have no jurisdiction. A litigant may submit to procedural jurisdiction of the court e.g. where a writ has been served outside jurisdiction without leave. See, also, A. – G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142; Oko v. State (2017) 17 NWLR (Pt. 1593) 24; Zakirai v. Muhammad (2017) 17 NWLR (Pt. 1594) 181; Kurma v. Sauwa (2019) 3 NWLR (Pt. 1659) 247; BPE v. Dangote Cement Plc. (2020) 5 NWLR (Pt. 1717) 291”.
“Flowing from this magisterial pronouncement, in the ex cathedra authority, it is my view that a party’s (claimant’s) failure to file an application for summary judgment along with the originating process, writ of summons, resides within the perimeter of procedural jurisdiction which is submissive to acquiescence/waiver by an adversary or, at best, a curable irregularity. In other words, such a failure has no romance with substantive jurisdiction, usually donated to the court by substantive statutes, the Constitution and other legislations, that is rebellious to waiver/acquiescence by an opponent. The High Court Rules, which warehouse the provision of order II rule 1, that is allegedly infracted fall within the commodious domain of subsidiary enactments, see section 37 of the Interpretation Act, Cap I 23, Laws of the Federation of Nigeria, 2004; Unilag v. Aigoro (1984) 15 NSCC 745; Agip (Nig.) Ltd. v. Agip Petroli Int’l (2010) 5 NWLR (Pt. 1187) 34; Oyegun v. Nzeribe (2010) 7 NWLR (Pt. 1194) 577; G.M.O.N. & Sons Co. Ltd. v. Akputa (2010) 9 NWLR (Pt. 1200) 143. They do not bestow jurisdiction on a court of law. Source of jurisdiction of courts is statutory. It is the Constitution and legislations that do, see Dada v. Ogunremi (1962) 2 SCNLR 417; State v. Onagoruwa (1992) 2 SCNJ (Pt. 1) 1; Afribank (Nig.) Plc. v. Akwara (2006) 5 NWLR (Pt. 974) 619; Onuorah v. KRPC Ltd. (2005) 6 NWLR (Pt. 921) 393; Mailantarki v. Tongo (2018) 6 NWLR (Pt. 1614) 69; Mainstreet Bank Capital Ltd. v. Nig RE (2018) 14 NWLR (Pt. 1640) 423; Nduul v. Wayo (supra); Okorocha v. UBA Plc (2018) 17 NWLR (Pt. 1649) 441; APC v. Umar (2019) 8 NWLR (Pt. 1675) 564”.
“Interestingly, the provision is comprehension-friendly. To this end, the law commands the court to employ the literal rule on its interpretation, id est, to accord it its ordinary grammatical meaning without any embellishments, see Berliet v. Kachalla (1995) 12 SCNJ 147, Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt.1224) 154; Kraus Thomason Org. Ltd. v. NIPSS (2003) NWLR (Pt.901); Uwazuriki v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035)1; Branco v. Wemabod Estate Ltd. (2011) 6 NWLR (Pt. 1243) 378; Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275”.
“It is an accepted principle of interpretation of statutes that the use of the word “may”, a modal verb, generally denotes directory or permissive action. However, the hallowed principle of law is inflexible. Its elasticity is located in the interchange/exchange of its connotation with the word “shall” that usually signifies mandatoriness or compulsiveness. Put differently, the word “may” mutates its connotations in law. At times it maintains its ordinary meaning of being directory. At other times, it sheds/disowns it and acquires obligatory action depending on circumstances, see Ifezue v. Mbadugha (1984) 1 SCNLR 427; Okonkwo v. U.B.A. Plc (2011) 16 NWLR (Pt. 1274) 614; Cont. Res. (Nig.) Ltd. v. U.B.A. Plc (2011) 16 NWLR (Pt. 1274) 592; Ugwanyi v. FRN (2012) 8 NWLR (Pt. 1302) 384; Nigerian Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; Aba v. Monday (2015) 14 NWLR (Pt. 1480) 569; Nyesom v. Peterside (2016) 1 NWLR (Pt. 1492) 71; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Wada v. Bello (2016) 17 NWLR (Pt. 1542) 374; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; Mohammed v. State (2018) 5 NWLR (Pt. 1613) 540; Sule v. State (2018) 10 NWLR (Pt. 1628) 545; Malami v. Ohikhuare (2019) 7 NWLR (Pt. 1670) 132; Amah v. FRN (2019) 6 NWLR (Pt. 1667) 160; Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36”.
“Interestingly, the litmus test to be employed by the court to gauge which provision is mandatory or directory was, graphically, captured by Ogundare, JSC, in Odua Investment Co. Ltd. v. Talabi (1997) 7 SCNJ 600, at 652-853, in these illuminating words: The difficulty has always been to determine what is mandatory or obligatory….A statutory provision may be mandatory in one part and directory in another part. Example of this is section 258 (1) of our 1979 Constitution….It is the law here in Nigeria as well in England that if an object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person then the provisions of the statute are directory not mandatory.
“I have, in due loyalty to the desire of the law, married the provision of order II rule 1 of the High Court Rules with the amphibious purports of the word “may” deployed therein. The raison d’etre for the juxtaposition is not far-fetched. It is to ascertain if it (may) wears/bears the import of directory or mandatory significance. To begin with, going by the phraseology and tenor of the order II rule 1 of the High Court Rules, the right to file an application for summary judgment with the writ of summons is domestic/personal to it and submissive to waiver by it, see F & F Farms (Nig) Ltd. V. NNPC (2009) 12 NWLR (Pt. 1155) 387; Nnonye V. Anyichie (2005) 2 NWLR (Pt. 910) 633. In the Latin days of the law, waiver of personal right was encapsulated in the maxim: Quilibet potest renunciare juri pro se introducto- an individual may renounce a law made for his special benefit”.
“For the sake of ex abundanti cautela, I will invite the provision of order 5 rule 1(2) of the High Court Rules. For its importance, I will extract it, where it is ingrained in the Rules, verbatim ac litteratim, thus: (2)Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularise such steps. The provision, which harbours no ambiguity, enjoins the court, in the interest of justice, to waive a party’s blunders/non-compliance with the requirements of the High Court Rules as to time, place, manner or form and consign the same to the province of irregularity. Thus, the provision constitutes an inbuilt safeguard aimed to douse the caustic effects of non-compliance with some provisions of the Rules. It is axiomatic, that the provision bestows on this court the discretionary power to treat wide range of failures to conform to the Rules as an irregularity, see Dingyadi v. INEC (no. 1) (2010) 18 NWLR (Pt. 1224) 1; Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) 134; Michael v. BON (2015) 12 NWLR (Pt.1473) 370; Gov., Zamfara State v. Gyalange (2013) 8 (NWLR) (Pt. 1357) 462). Famfa Oil Ltd. v. A. – G., Fed. (2003) 18 NWLR (Pt. 852) 453; N.B.C. Plc. v. Ubani (2014) 4 NWLR (Pt. 1398) 421; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Lafferi (Nig.) Ltd. v. NAL Merchant Bank Plc(2015) 14 NWLR (Pt. 1478) 68; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 52; Poroye v. Makafi (2018) 1 NWLR (Pt. 1599) 91; KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (Pt. 1601) 473.
STATUS(ES) REFERRED TO
Companies and Allied Matters Act, Cap. C20, Laws of the Federation of Nigeria, 2004 (CAMA)|Interpretation Act, Cap I 23, Laws of the Federation of Nigeria, 2004|
G. A. Bello, Esq. for the appellant|Said Sanusi, Esq. for the respondent.|