➥ CASE SUMMARY OF:
Kalu Mark & Anor. V. Gabriel Eke (SC.35/1997, 2004) – SC
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Undefended list;
Service of originating process.
➥ CASE FACT/HISTORY
Gabriel Eke, the respondent herein was the plaintiff before the High Court of Abia State in the Aba Judicial Division holden at Aba, when he claimed against the appellants herein as the defendants jointly and severally as follows: “The plaintiff claims against the defendants jointly and severally the sum of N1,992,255.16k (One million nine hundred and ninety two thousand, two hundred and fifty five naira and sixteen kobo) being money had and received by the defendant for a consideration that has failed.”
Following Order 23 High Court (Civil Procedure Rules) 1998 of Imo State, applicable in Abia State, the plaintiff applied to have the writ placed under the undefended list. The plaintiff accompanied the application with an affidavit and the learned trial Judge placed the plaintiff’s claims under the undefended list.
The return date earlier ordered by the court was 7/12/1993. It was however on the 16/12/1993, that the plaintiff moved the trial court that since the defendants were not in court, to enter judgment in favour of the plaintiff. Hon. Justice G.D. Kalunta granted the prayer and entered judgment as follows: “The suit which was brought on the undefended list was served on the defendants by pasting at the last known address at No. 102 School Road, Aba. The suit was served on the defendants on the 23/11/1993. After service of the writ of summons, none of the defendant(s) sic filed an intention to defend the suit consequently counsel for the plaintiff has now applied for judgment. After a careful consideration of the affidavit filed in support of this claim, I am of the view that the defendants have no defence. I will therefore enter judgment for the plaintiff in the sum of N1,992,255.16 being money had and received by the defendants for a consideration that has wholly failed.”
The plaintiff subsequently applied for the execution of the judgment and on Friday, 7th January 1984, the execution was levied on the defendants’ properties in the presence of the plaintiff accompanied by the court bailiffs and several policemen. After the execution, the defendants filed an application in the court of trial seeking to set aside the judgment and the execution, claiming that they were never served with the writ of summons and that they only became aware of the suit when the writ of Fifa was served on them.
The learned trial Judge then proceeded to refuse the application. The defendants felt unhappy with the turn of events; they filed a notice of appeal against the ruling.
The Court of Appeal in its consideration of the issues placed before it in its judgment delivered on the 6/3/1997 dismissed in its entirety the defendants’ appeal. The lower court affirmed the trial court by holding (1) a judgment obtained under the undefended list procedure cannot be set aside except by way of an appeal. (2) permitting litigant to challenge affidavits of service by bailiffs or other officers of the Court would open up a floodgate of cases and (3) that the learned trial Judge had sufficient materials before him to resolve the conflict in the parties affidavits in relation to the question of service of the writ of summons without the need to call for oral evidence.
➥ ISSUE(S)
I. Whether under the laws of Nigeria the only option available to a party disputing a judgment entered against that party under the undefended list is an appeal against that judgment?
II. Whether under the circumstances of this case when there is a conflict on the facts as contained in two opposing affidavits, the learned trial Judge ought to have resorted to taking oral evidence in order to arrive at a decision whether the appellants were served with the originating process or not?
III. Whether the judgment of the High Court which was sought to be set aside was a competent judgment?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[JUDGEMENT ON UNDEFENDED LIST IS ON MERIT; JUDGEMENT ON MERIT CANNOT BE SET ASIDE BY THE SAME COURT THAT GAVE IT
‘I agree with the learned counsel for the respondent and the decision of the lower court may appear to be right as per the procedure for setting aside default judgment is adopted in setting aside judgment obtained under the undefended list procedure. A judgment obtained on the undefended list is a judgment on the merit and the procedure adopted in setting it aside in the case of Bank of the North Ltd. v. Intra Bank (supra) by relying on the provisions of the old English rules under Order 14 rule 11 of the said old rules in dealing with default judgment was wrong and the Judge would have no power to set aside its judgment under these rules dealing with default proceedings in a matter where the judgment was entered under the undefended list. So long as the judgment was obtained by merit, a trial court will not have the jurisdiction to set aside its judgment even if there was a mistake. In Leventis Motors v. Mbonu (1961) All NLR 539, the plaintiff’91s claim was for the sum of ‘a34204.55.6d defendant did not file a notice of intention to defend nor was he present nor represented at the hearing. Through error, the plaintiff’91s counsel asked judgment in the sum of ‘a32942.10 for which judgment was duly entered. It was held that the trial court could not interfere with the judgment in the absence of the agreement of both parties.’
THE APPELLANT COMPLAINS OF NON-SERVICE OF THE ORIGINATING PROCESSES, AND THAT IS A GROUND FOR SETTING ASIDE THE UNDEFENDED LIST JUDGEMENT
[‘In view of the above, both the court below and the trial court were in error to have held that the trial court had no power to set aside the judgment because the judgment in this matter was a judgment obtained under the undefended list. Where as in this case the aggrieved defendant complains of non-service of the process, he is raising a fundamental issue which goes to the jurisdiction and the competence of the court to enter the judgment. In such a case, where the defendant proves non-service on him, the whole proceedings become a nullity and the trial court has the jurisdiction to set it aside. It needs to be emphasized, that it is now settled law that the failure to serve process, where the service of process is required such as in this case, is a failure which goes to the roots of the case; see Craig v. Kanssen (1943) KB 256 at 262. It is the service of the process of the court on the defendant that confers on the court the competence and the jurisdiction to adjudicate on the matter. It is clear that due service of the process of the court is a condition precedent to the healing of the suit. Therefore if there is a failure to serve the process, where the service of the process is required the person affected by the order, but not served with process, is as mentioned above entitled ex debito justitiae to have the order set aside as a nullity. See Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.364) 5. I accordingly, resolve issue number one against the respondent. Under the circumstances both the trial court and the Court of Appeal were in error to have held that they could not set aside the judgment in this case merely because, the judgment was obtained under the undefended list procedure, what the authorities state is that judgment on the undefended list is a judgment on the merits and cannot be set aside as merely a default judgment entered in the absence of a party or in the default of a defendant to take a procedural step.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[THE 2ND DEFENDANT BEING A COMPANY WAS NOT PROPERLY SERVED WITH THE ORIGINATING PROCESSES
‘Now, the affidavit of service sworn to by the bailiff shows that there are two defendants, one an individual, (the 2nd appellant); the first appellant and two, a limited liability company; the bailiff stated that he effected the service by substituted means. He claims, “I pasted upon the defendant’s doors …” In my view, this is not good enough. The affidavit of service must be a proper affidavit of service proving due service of the writ. The second appellant as the 2nd defendant is a limited liability company. The mode of service on a limited liability company under the relevant rules of court is different from service of process on a natural person such as the 1st appellant. The Companies and Allied Matters Act by section 78 makes a provision as how to serve documents generally or any company registered under it. By this, a court process is served on a company in the manner provided by the rules of court. A service on a company, as this provided, must be at the registered office of the company and it is therefore, bad and ineffective if it is done at a branch office of the company; see Watkins v. Scottish Imperial Insurance Co. (1889) 23 QBD 285. The procedure is by giving the writ to any director, trustee, secretary or other principal officer at the registered office of the company or by leaving the same at its office. That is why, I am of the view that the affidavit of service by substituted means sworn to by the bailiff is not enough to prove that 2nd appellant was duly served with the originating summons. I cannot see the need or the necessity of making a substituted service on a corporation such as the 2nd appellant. See Ben Thomas Hotels Ltd. v. Sebi Furnitures Ltd. (1989) 5 NWLR (Pt.123) 523. The need for substituted service arises because personal service cannot be effected and since personal service can only be effected on natural or juristic persons, the procedure for substituted service cannot be made to a corporation like the 2nd appellant herein Sloman v. Government of New Zealand (1875) 1CPD 563; Hillyard v. Smyth (1889) 36 WR 7. So, no matter how you look at it, the 2nd defendant, the 2nd appellant herein, could not be said to have been properly served. The affidavit sworn by the bailiff could not be sufficient proof of service of the process on the 2nd appellant. So in the situation such as this, there is even no need for the trial Judge to call for oral evidence to resolve the contradictory positions taken by the parties, the respondent had offered no credible evidence to show that the 2nd appellant was served with the originating process. Therefore, based on the available credible evidence the 2nd appellant had shown that it had not been served with the originating process.’
THE AFFIDAVITS WERE CONFLICTING AND THUS THE TRIAL COURT OUGHT TO HAVE CALLED FOR ORAL EVIDENCE
‘In any event, as shown, the bailiff swore that he pasted the writ on the door of the premises of the appellants, against that is the affidavit sworn to by the 1st appellant, that no such thing was done and that he only became aware of the existence of the suit when the respondent went to attach certain goods in the execution of the purported judgment. The trial court was clearly faced with two conflicting affidavits on the issue of service, on the other hand, the appellants claimed not to have been served and the respondent by the bailiff’s affidavit assert that there was service, in such a situation in my view, the trial court should have called for oral evidence to enable him determine the truth. See National Bank v. Are Brothers (1977) 6 SC 97; Pharmacists Board v. Adebesin (1975) 5 SC 43; Mbadugha v. Nwosu (1993) 9 NWLR (Pt.315) 110. It is now elementary law that in the face of direct conflict on crucial and material facts, the learned trial Judge must call for oral evidence from the defendant or such other witnesses as the parties may call. Both the learned trial Judge and the lower court were in error to have glossed over the issue and adjudged the issue as an after thought. The lower court was also in error to have held that there were sufficient facts upon which the court could come to the conclusion that the appellant were served, when the lower court failed to mention the other pieces of evidence. Such a finding is perverse since it is not supported by any evidence on the printed record. I am of the view that there was no material available to enable the lower court resolve the differences as contained in the two affidavits, recourse must be had to calling oral evidence to arrive at the truth whether the appellants were served with the originating process or not, I accordingly resolve the 2nd and 5th issues in favour of the appellants.’]
.
.
↪️ ISSUE 3: IN APPELLANT’S FAVOUR.
[THIS ISSUE DOES NOT RELATE TO ANY GROUND OF APPEAL AND THE LOWER COURT OUGHT NOT TO HAVE CONSIDERED IT
‘It appears to me straight away that this is a no issue as it did not arise for determination in the trial court. In the trial court, the appellant merely applied to the court to set aside the judgment obtained against the appellants on the ground that the originating process was not served on the defendants, the applicants to the motion, the subject matter of the ruling. There was no appeal against the judgment and in his ruling the learned trial Judge did not consider the issue of whether the claim was properly placed on the undefended list or not. It was never raised by any of the parties and the learned trial Judge did not consider or rule on the competency of the matter he had placed on the undefended list. Indeed, he could not have considered it, since he could not sit on appeal on a matter he had decided. I have also examined the amended notice of appeal filed by the appellants and I cannot find any ground of appeal that has relevance to the issue now under discussion. The lower court dealt with this issue, i.e. the competency of the suit under undefended list when the amount claimed was not liquidated or ascertained etc. as shown above, this was a fresh issue before the lower court and it dealt with it as issue No.3, when clearly as indicated above, there was no ground of appeal to sustain it. I am of the view that the lower court was wrong to have considered the competency of the suit when, there was no appeal against the judgment. It was wrong for the lower court to deal with the matter when there was no ground of appeal to support the issue. It was also wrong for the Court of Appeal to consider the issue since no leave was sought and obtained to deal with it as a fresh issue. I accordingly decline to consider the third issue as it is not relevant and it did not properly arise for determination in the court below. It is the law that neither a party nor a court is permitted to argue or deal with an issue not related to any ground of appeal. See Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514; Nwosu v. Udeaja (1990) 1 NWLR (Pt.l25) 188.’]
.
.
.
✓ DECISION:
‘But having resolved issues 1, 2 and 5 in favour of the appellants, the appellants’ appeal deserves to succeed and I accordingly, allow it. The orders of the lower court are set aside. The judgment of the High Court entered on the 16/1/1994 is hereby set aside and the suit filed by the respondent be heard de novo before another Judge. The orders for costs made against the appellants are set-aside in the two lower courts. The appellants, are entitled to costs in the trial court, the Court of Appeal and this court assessed at N3,000.00, N4,500.00 and N10,000.00 respectively.’
➥ FURTHER DICTA:
⦿ UNLESS THE COURT HAS PRONOUNCED A JUDGEMENT ON MERIT, IT CAN SET IT ASIDE
Now, there is no doubt that the judgment in this case the appellants wanted to set aside was a judgment obtained against the appellants on the undefended list. A judgment entered on the undefended list is a judgment entered on its merits and is not judgment entered on default. There is indeed inherent power for a court of record to set aside its judgment entered into in a default of taking any procedural step such as in default of appearance, generally called default judgment as Lord Atkin put it in Evans v. Bartlam (1937) AC 480: “The principle obviously is that unless the Court has pronounced a judgment upon the merits, or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any rules of procedure.” — Musdapher JSC.
⦿ WHERE THERE IS FUNDAMENTAL DEFECT THE COURT CAN SET ASIDE HIS JUDGEMENT
But, however, if the judgment is a nullity the court which made it can set it aside on a motion suo motu or on an application by any party affected by it. See Lawani Aladegbemi v. John Fasanmade (1988) 3 NWLR (Pt. 81) 129; Victor Rossek & Ors. v. A.C.B. Ltd. & Ors. (1993) 8 NWLR (Pt. 312)382; Okoli Ojiako & Ors. v. Onwoma Ogueze & Ors. (1962) 1 All NLR 58. The law is settled that any court of record including the Supreme Court, see Olabanji v. Odofin (1996) 2 SCNJ 242 at 247; (1996) 3 NWLR (Pt. 435) 126, has the inherent jurisdiction to set aside its own judgment given in any proceeding in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of the court. See Skenconsult (Nig.) Ltd. v. Ukey (supra); A.C.S. Pic. v. Losada (Nig.) Ltd. (1995) 7 NWLR (Pt. 405) 206; (1995) 7 SCNJ 158 at 168. Such a judgment is a nullity. A person affected by it is therefore entitled ex debito Justitiae to have it set aside. The court can set it aside suo motu and the person affected may apply by motion and not necessarily by way of appeal. See Adeigbe v. Kusimo (1965) NMLR 284; Ezeokafor v. Ezeko (1999) 6 SCNJ 209 at 225; (1999) 9 NWLR (Pt. 619) 513. This is common sense that if a court makes an order which it has no jurisdiction or competence to make, it has the jurisdiction to rescind the order so as to restore the status quo. See Akinbobola v. Plisson Fisko (Nig.) Ltd. (1991) 1 NWLR (Pt. 167) 270. A judgment or order which is a nullity owing to failure to comply with an essential provision, such as, service of process, can be set aside by the court which gave it or made the order. See Anatogu v. Iweka II (1995) 9 SCNJ 1 at 33 – 34 or (1995) 8 NWLR (Pt. 415) at 547. At 586, Ogundare, J.S.C. said: “The general rule is that the court has no power under any application in the action to alter or vary a judgment or order drawn up, except so far is necessary to correct errors in expressing the intention of the Court or under the slip rule” … There are however, exceptions to this rule some of which are: (1) A judgment or order which is a nullity owing to failure to comply with an essential provision such as service of process can be set aside by the court which gave the judgment or made the orders xxx”. — Musdapher JSC.
⦿ EFFECTING SERVICE ON A COMPANY
The Companies and Allied Matters Act by section 78 makes a provision as how to serve documents generally or any company registered under it. By this, a court process is served on a company in the manner provided by the rules of court. A service on a company, as this provided, must be at the registered office of the company and it is therefore, bad and ineffective if it is done at a branch office of the company; see Watkins v. Scottish Imperial Insurance Co. (1889) 23 QBD 285. The procedure is by giving the writ to any director, trustee, secretary or other principal officer at the registered office of the company or by leaving the same at its office. — Musdapher JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Musdapher J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
