Whether substituted service can be effected on companies
UBA, PLC v. Skyrun International air-condition manufacturer FZE & ORS
CITATION: (2022) LPELR-56507(CA)
In the Court of Appeal
In the Calabar Judicial Division
Holden at Calabar
ON FRIDAY JANUARY 15, 2022
Suit No: CA/C/04/2015
Before Their Lordships:
JAMES SHEHU ABIRIYI
Justice, Court of Appeal
MUHAMMED LAWAL SHUAIBU
Justice, Court of Appeal
ADEMOLA SAMUEL BOLA
Justice, Court of Appeal
UNITED BANK FOR AFRICA – Appellant(s)
1. SKYRUN INTERNATIONAL AIR-CONDITIONER MANUFACTURER, FZE
2.ETISCO BEREAU DE CHANGE– Respondent(s)
3. MR. ETIM OKIMA
LEADING JUDGMENT DELIVERED BY JAMES SHEHU ABIRIYI, J.C.A.
The 1st respondent alleged that it entered into a contract with the appellant to transfer money, which was however not transferred, as the latter claimed that it would violate Central Bank Regulations. The 1st respondent then paid the cheque to other respondents.
The claim of the 1st respondent that it was on the directive of the appellant that the money was not transferred, was denied by the appellant.
The 1st respondent then instituted a suit against the appellant, the 2nd and 3rd respondents all as defendants at the trial High Court under the Undefended List Procedure. The defendants were served on May 27, 2014, and they informed the trial Court that they intended to defend the matter. However, on June 5, 2014, the Court granted the claims of the 1st respondent, in the absence of defence from the defendants.
Hence, the appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Court of Appeal determined the appeal on the sole issue thus:
“Whether the Court below rightly assumed jurisdiction to hear and determine this case.”
Learned counsel for the appellant submitted that ORDER 10 OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2008 OF CROSS RIVER STATE is applicable only in respect of “Recovery of a debt or liquidated money demand.”
He then referred to the case of NIGERIAN POSTAL SERVICES V. IRBOK NIG. LTD. (2006) 8 NWLR (PT. 982) 323 and contended that the sum claimed is not a liquidated demand.
That thus, the trial Court was wrong to have entertained the instant case under the Undefended List.
Counsel submitted that by ORDER 10 RULE 6 OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2008 of Cross River State, the appellant was allowed 28 days from the date the order transferring the matter to the undefended list. But that the trial Court denied them 28 days and rushed them into delivering judgment.
Learned counsel for the 1st respondent argued that the reliefs sought by the 1st respondent were for recovery of debt and liquidated money demand. That the principal sums were money which belonged to the 1st respondent which constituted debts which the appellant, 2nd and 3rd respondents are to settle while the interest rates derive from the prevailing monetary policy of the Central Bank of Nigeria applicable to the principal sums and constituted money demand.
The learned counsel for the 2nd and 3rd respondents argued that the 1st respondent obtained an order of substituted service on the 2nd respondent at No. 139 Ndidem Usang Iso Road, Calabar but served by pasting at House No.5 Charles Taylor Estate, Barracks Road, Calabar which was contrary to the Order of Court for the service of the originating processes.
That the 3rd respondent was served the originating process at 139 Ndidem Usang Iso Road, Calabar when that is not his address. He argued that it means the 3rd respondent was not served with the originating process in this case.
Counsel for the 2nd and 3rd respondents submitted that service of process is a condition precedent for the Court assuming jurisdiction and where the defendant is not served with the writ of summons, the subsequent trial of the case is a nullity.
Furthermore, he contended that the 2nd respondent is a registered company which by ORDER 12 RULE 9 OF THE CROSS-RIVER STATE (CIVIL PROCEDURE) RULES, 2008 cannot be served an originating process by substituted means; that is by pasting. That the only valid means of service on a registered company under the Rule is by delivery of the process to a Director, Secretary or other Senior Officer of the organization or by leaving it with a responsible person at the registered office or place of business of the organization.
Counsel then asserted that in the circumstance, the 2nd respondent was not properly served.
Counsel submitted that the 2nd and 3rd respondents should be given the opportunity to defend the action by being served with the originating process in the case.
RESOLUTION OF ISSUES
In the determination of the sole issue, the Court stated when a suit placed under the Undefended List shall be heard by quoting the provision of ORDER 10 RULE 6 OF THE CROSS-RIVER STATE (CIVIL PROCEDURE) RULES which provides thus: “All suits placed under the Undefended List shall be heard and determined within 28 days of their being so placed subject to service of the processes on the defendant.”
The Court explained that by virtue of the facts that service was effected on the appellant, 2nd and 3rd respondents on May 27, 2014, and that judgment was entered on June 5, 2014, the appellant, the 2nd and 3rd respondents were still within time to file a defence going by ORDER 10 RULE 6. That the trial Court erred when it shut out the appellant, the 2nd and 3rd respondents in spite of the fact that they were still within time to defend.
The Court stated the trite position of the law that service of the originating process such as the writ of summons on the defendant is a condition precedent to exercise of jurisdiction of the Court to hear and determine the suit. That any judgment or order given against a defendant without service is a judgment given without jurisdiction and is therefore null and void. See ABUJA GLAZING TECHNOLOGY LTD V. STANLEY UCHENNA NWAJESUS & ORS (2021) LPELR–54904.
The Court stated that the 2nd respondent is a registered company and by ORDER 12 RULE 9 OF THE CROSS-RIVER STATE (CIVIL PROCEDURE) RULES, 2008, a company cannot be served an originating process by substituted means that is by pasting.
Thus, the Court posited that there was no service of the originating processes on the 2nd and 3rd respondents because the 2nd respondent was served by substituted means at House 5, Charles Taylor Estate contrary to the Order of the Court that service be effected at No. 139 Ndidem Usang Iso Road, Calabar and that the 3rd respondent was also served by substituted means by pasting at No. 139A Ndidem Usang Iso Road, Calabar contrary to the order of the Court that service is effected at No. 5, Charles Taylor Quarters, Barracks Road, Calabar.
In conclusion, the Court held that the originating processes having not been served on the 2nd and 3rd respondents, the judgment of the trial High Court delivered on June 5, 2014, was delivered without jurisdiction and therefore null and void.
The appeal was allowed and the judgment of the trial High Court was set aside. The Court of Appeal remitted the suit to the Hon. Chief Judge of Cross River State to be re-assigned to another Judge.
N. B. Ulaeto, Esq. – For Appellant(s)
E. S. Irem, Esq. – for 1st respondent – For Respondent(s)
C. B. Agogo, Esq. – for 2nd and 3rd respondents
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