CORAM

PARTIES

THE TRUSTEES OF THE NIGERIAN INSTITUTION OF ESTATE SURVEYORS APPELLANTS

CHIEF EBUBECHUKWU ETUDO (Carrying on business in the name and style Etudo & Company) RESPONDENTS

AREA(S) OF LAW

CIVIL PROCEDURE, ADMINISTRATIVE LAW, LEGAL CAPACITY, SERVICE OF PROCESS, DEFAULT JUDGMENT, DECLARATORY RELIEFS, JUDICIAL REVIEW, CORPORATE PERSONALITY, LEGAL ENTITIES

SUMMARY OF FACTS

The Respondent, Chief Ebubechukwu Etudo (carrying on business in the name and style of Etudo & Company), instituted an action against the Appellant at the High Court of Lagos State on January 24, 2005, seeking declarations that the Appellant acted outside its jurisdiction in making arbitral monetary awards pursuant to petitions for alleged misconduct brought against the Respondent. The Respondent also sought orders setting aside the decisions of the Appellant contained in a letter dated November 22, 2004, and a perpetual injunction restraining the Appellant from implementing the said decisions.

The originating processes, along with an application for interlocutory injunction, were served on the Appellant on January 25, 2005, according to an affidavit of service sworn to by a bailiff of the court. When the Appellant failed to enter an appearance within the prescribed time, the Respondent filed a motion for final judgment dated March 9, 2005, which was also served on the Appellant on the same day.

When the case came up on March 14, 2005, the trial court adjourned the application to April 12, 2005, and ordered a hearing notice to be served on the Appellant, which was done. On April 12, 2005, the Appellant was absent and unrepresented, resulting in the trial Judge entering a default judgment against it based on the motion for judgment.

On June 20, 2005, the Appellant filed an application seeking to set aside the default judgment, which the Respondent opposed through a Counter-Affidavit. The trial court heard the application and delivered its ruling on April 7, 2006, dismissing it. The Appellant subsequently obtained leave from the Court of Appeal and filed an appeal against the ruling on May 9, 2008.

HELD

The Court of Appeal held that:

1. The first issue, regarding whether the trial court was right to enter default judgment in a suit seeking declaratory reliefs, could not be considered because it was a new issue raised for the first time on appeal without the Appellant obtaining leave to do so.

2. The Appellant was duly served with all the relevant court processes. Based on documentary evidence, particularly letters exchanged between the parties, it was evident that the Appellant was aware of the suit but failed to utilize the opportunity to defend itself.

3. The action was properly commenced by writ of summons as there was nothing in Order 40 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules which prohibited commencement of such actions by writ of summons. The suit was not one for prohibition, certiorari, or mandamus, which would require a different mode of commencement.

4. However, the body described as “The Trustees of the Nigerian Institution of Estate Surveyors and Valuers” was not a legal entity capable of being sued. Under the Estates Surveyors and Valuers (Registration, Etc) Act, the legally recognized entities are the Estates Surveyors and Valuers Registration Board, the Estates Surveyors and Valuers Disciplinary Tribunal, and the Estates Surveyors and Valuers Investigation Panel.

5. The Respondent’s action was incompetent as it was not commenced against a person with legal capacity to sue and be sued.

The Court of Appeal allowed the appeal and struck out the Respondent’s action for incompetence.

ISSUES

1. Whether the Honorable trial Court was right to have entered default judgment in this suit?

2. Whether the Honorable trial Court was right in holding that the relevant court processes were validly served on the Defendant/Appellant?

3. Whether the Honorable trial Court adequately considered the issues raised by the Defendant/Appellant regarding the competence of the suit and jurisdiction of the court?

RATIONES DECIDENDI

RAISING NEW ISSUES ON APPEAL – REQUIREMENT FOR LEAVE OF COURT

Where a new issue is to be raised and argued for the first time on appeal, the party introducing it has the duty to first apply and obtain leave to do so from the Court. In the instant case, the appellant did not seek leave of court to raise this issue and consequently it will be discountenanced. – Per CHINWE EUGENIA IYIZOBA, JCA

SERVICE ON CORPORATE BODIES – DISTINCTION BETWEEN SERVICE AND LEGAL CAPACITY

The issue of service of process on the Appellant as named on the writ of summons must be distinguished from legal capacity of the Appellant. Learned counsel to the Appellant ought not to have mixed up the matters as he did in his argument. The name of the Appellant as endorsed on the writ suggests that it is a body corporate and in treating the issue of service, I will regard it as such.– Per CHINWE EUGENIA IYIZOBA, JCA

PERSONAL SERVICE ON CORPORATE BODIES – IMPOSSIBILITY OF PERSONAL SERVICE

The Appellant as named on the process of court in this case is not a natural person. The law is that a corporate body cannot be served personally because personal service can only be effected on natural persons. – Per CHINWE EUGENIA IYIZOBA, JCA

PROOF OF SERVICE – DOCUMENTARY EVIDENCE ESTABLISHING SERVICE

What I can make out of this letter is that the learned counsel to the Appellant at this stage was not contesting service of the originating processes on the Appellant. Rather, he stated that the copy of the processes filed by the Respondent which had been served on it, Counsel was thus requesting for better copies from the learned counsel to the Respondent. Unknown to him, judgment had been entered against the Appellant at this stage. The story now changed after the Appellant realised that default judgment had been given against it. – Per CHINWE EUGENIA IYIZOBA, JCA

PROCEDURE FOR SERVICE ON CORPORATE BODIES – LEAVING PROCESS AT OFFICE OR SERVICE ON OFFICER

Based on this provision, I do not agree with learned counsel for the Appellant that service on the said persons were not good and proper service since under the provision, service can be effected by merely leaving the process at the registered, principal or advertised office or place of business of the organisation within jurisdiction. – Per CHINWE EUGENIA IYIZOBA, JCA

SUBSTITUTED SERVICE ON CORPORATE BODIES – PROHIBITION AGAINST SUBSTITUTED SERVICE

It is also the law that substituted service cannot be made on a body corporate.” – Per CHINWE EUGENIA IYIZOBA, JCA

MODE OF COMMENCING JUDICIAL REVIEW – COMMENCEMENT OF ACTIONS SEEKING JUDICIAL REVIEW

I have considered the reliefs sought by the Respondent in this action and I cannot see anything in Order 40 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules which prohibits commencement of actions of this nature by writ of summons. This is not an action for prohibition, certiorari or mandamus. It is also not one seeking to restrain anyone from acting in a particular office for incapacity. I am of the view that this action can be commenced by writ of summons as the Respondent did. – Per CHINWE EUGENIA IYIZOBA, JCA

FORM OF COMMENCEMENT OF ACTION – EFFECT ON VALIDITY OF ACTION

In the case of Nagogo v. CPC (2013) 2 NWLR (pt.1339) 448 at 472 the Supreme Court held that the manner or form of commencement of an action is not by itself enough to vitiate an action if the ends of justice would be compromised on account of such technical application of the rules. – Per CHINWE EUGENIA IYIZOBA, JCA

ENFORCEMENT OF FUNDAMENTAL RIGHTS – MULTIPLICITY OF MECHANISMS

In Ogugu v. State (1994) 9 NWLR (pt.366) 1 at 26 the Supreme Court held that the provisions of section 42 of the 1979 Constitution of the Federal Republic of Nigeria for enforcement of fundamental rights is only permissible and does not constitute a monopoly for the enforcement of those rights. Mohammed Bello, CJN emphasised that the section does not exclude the application of the other means of enforcement of fundamental rights under the common law or statutes or rules of courts. – Per CHINWE EUGENIA IYIZOBA, JCA

LEGAL CAPACITY TO SUE AND BE SUED – NON-LEGAL ENTITIES

I hold the view that it is either of these bodies and their members that can be sued for the wrong alleged in the claims of the Respondent in this action. It is doubtful if the body described by the Respondent ‘The Trustees of the Nigerian Institution of Estates Surveyors and Valuers’ exists. – Per CHINWE EUGENIA IYIZOBA, JCA

OFFICIAL RECOGNITION VS. CORPORATE STATUS – EFFECT OF OFFICIAL RECOGNITION

The Appellant has further contended that the Defendant as sued is neither a creation of statute nor an incorporated trustee and as such it cannot be sued eo nomine, that is, it cannot be sued by its own name. It is further argued based on the case of Fawehinmi v. NBA (No. 2)(1989) All NLR 274 that official recognition of the Appellant does not confer it with corporate status.– Per CHINWE EUGENIA IYIZOBA, JCA

COMPETENCE OF ACTION AGAINST NON-LEGAL ENTITY – EFFECT ON ACTION

In the circumstance, I have no option than to uphold the contention of the Appellant that the Appellant as sued is not a legal entity in existence capable of suing and/or being sued. The effect of this finding is that the action of the Respondent not having been commenced against a person with legal capacity to sue and be sued is incompetent.– Per CHINWE EUGENIA IYIZOBA, JCA

DECLARATORY RELIEFS BY DEFAULT JUDGMENT – LIMITATIONS

He submitted that under the facts of this case where declaratory reliefs were sought, default judgment ought not to have been entered, citing Ezeokonkwo v. Okeke (2002) 5 SC (pt.1) 44 at 61. He argued that the matter ought to have proceeded to trial. Counsel cited the case of Olisa v. Asojo (2002) 1 NWLR (pt.747) 13 at 31-32 in support contending that courts do not make declaration of rights either based on admission or in default of evidence…– Per CHINWE EUGENIA IYIZOBA, JCA (quoting Appellant’s submission)

CASES CITED

STATUTES REFERRED TO

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