12/10/2021
ISSUES ON SERVICE OF COURT PROCESSES
USMAN & ORS. vs. INSPECTOR GENERAL OF POLICE & ORS.(2018)LPELR-45311(CA)
ISSUE: ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES)-Position of the law on the issuance and service of originating process(es)
(ISSUANCE/SERVICE OF ORIGINATING PROCESS(ES)-Effect of failure to seek and obtain leave of Court before service of originating process(es) by substituted means)
Issue in bracket mine.
PRINCIPLE:
"It is trite that service of originating process is a pre-condition to the exercise of jurisdiction by the Court. Where there is no service or there is a procedural fault in service, the subsequent proceedings are a nullity ab initio. This is based on the principle of law that a party should know or be aware that there is a suit against him so that he can prepare a defence. If after service he does not put up a defence, the law will presume and rightly too, that he has no defence. But where a defendant is not aware of a pending litigation because he was not served, the proceedings held outside him will be null and void. See EIMSKIP LTD. V. EXQUISITE INDUSTRIES NIG. LTD. (2003) 4 NWLR (Pt. 809) 898; SKENCONSULT NIG. LTD. V. UKEY (1981) 1 SC 6; CRAIG V. KANSEEN (1943) 1 QB 256; OKE V. AIYEDUN (1986) 2 NWLR (Pt. 23) 548.
This is a contention about whether the 1st - 5th Respondents were served with the originating processes, the Court below found that they were not served. It is the responsibility of a Court to verify service and if service was not effected then those not served cannot be bound by the outcome of the determination and that was what happened in this case. The principle is premised on the fact that jurisdiction is activated by proper service on the parties to respond. The Court made a specific order for the service of the amended originating processes on the 6th December, 2016 and hearing to a later date to enable the Appellants serve the Amended Originating Summons within 5 days. It was not served within 5 days but several days later and by substituted means without leave of Court and by counsel, the affidavit of service by substituted means was filed. The 1st - 5th Respondents did not appear but the application was taken and the names of the 1st to 5th Respondents were struck out of the application for failure to serve them with the originating processes in the judgment. The Court below found that the service effected by learned Counsel to the Applicants was defective and consequently struck out the names of the 1st - 5th Respondents for want of jurisdiction. And that is the basis of issue one. I cannot fathom the import of the Appellants arguments when in deed there was no personal service and the purported service was by substituted means without leave of Court and by counsel, the Court was right to decline jurisdiction and strike out the names of the said 1st - 5th Respondents. The manner of serving originating processes is primarily personal but the Court can grant leave for service to be effected by substituted means which should be specified in the order and service would be circumscribed by that mode of service. Since the Appellants as applicants failed to ensure service was duly effected, the Court acted rightly and the first issue is resolve against the Appellants.
It is trite that a Court could take judicial notice of processes in its file to decide an issue but in this case taking judicial notice would still not be of help to the Appellants who went on a frolic of their own to give themselves power to serve by substituted means and to do beyond the period limited by the Court. The Appellants did not even seek to regularize the defective mode of service and therefore the said affidavit of service is worthless, it did not reflect any pronouncement of the Court below.
The law is settled that originating processes must be served personally, this was not done and the consequence is that any purported service is a nullity. The Court could, upon an application order for service by substituted means and that would have the same effect as personal service. No such application was made and therefore, there was no order for the said processes to be served in the manner learned counsel to the Appellants served. The effect is that there was no service. Furthermore, the argument that learned counsel is an officer of the Court and so could effect service as a bailiff or sheriff appointed by the Court is a non starter, processes of Court are served by an officer designated to do so for obvious reasons. By law, they are protected from aggressive and violent parties and therefore could be assisted by law enforcement agents. A counsel does not have such protection. The saying that counsel is an officer of the Court is not with regards to effecting service. That is not to say that the Court could not have so ordered to be effected by counsel, the point is that if service of originating processes is not personally effected, then the Court must so direct." Per NIMPAR, JCA.(Pp.17-20,Paras.A-F).
KANGNAAN vs. KANGNAAN(2019)LPELR-46502
(CA)
ISSUE: SUBSTITUTED SERVICE-Whether the Court can order substituted service without an attempt at personal service
PRINCIPLE:
"The procedure before leave for substituted service could be obtained was spelt out in Fidelis Nwadialo (Civil Procedure in Nigeria) 2nd Ed. (2000) at page 258 thus-
"A plaintiff can only resort to substituted service by the order of Court for which he must, first of all apply. All the rules provide for this mode of service. By the provision, where it appears to the Court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the Court may order substituted service."
By Order 12 Rule 5(4) of the Plateau State (Civil Procedure) Rules, the Court can either after or without any attempt at personal service,
where it appears to it that for any reason personal service cannot be conveniently effected, order substituted service of an Originating Process. I cannot shy away from the fact that the rules of the Plateau State High Court like most other Courts permit the Court to make order for substituted service even where no attempt for personal service had been made, where the Court has reason to believe that personal service will not be convenient or near impossible. However, in practice Courts do not readily grant an order for substituted service where an attempt for personal service has not been made to avoid abuse of the provision of the rules or discourage personal service as provided, which may actually result to the hearing of a matter without serving the other party. In the instant case, in the affidavit in support of the Motion Ex-parte, it was deposed that after the Appellant left her matrimonial house she relocated to Abuja from her parent's house to an unknown address. With that deposition, the Respondent was in the dark of the Appellant's address and so had no other means of getting the Appellant served but by substituted means. With the material fact before the learned trial Judge, I hold the trial Court acted in consonance with Order 12 Rule 5 of the Plateau State High Court Rules when it ordered for substituted service even though there was no prior attempt for personal service." Per ONYEMENAM, JCA.(Pp.11-13,Paras.E-C).
BETHANY CHRISTIAN ACADEMY & ANOR. vs. PLATEAU STATE BOARD OF INTERNAL REVENUE
(2018)LPELR-46109(CA)
ISSUE: SERVICE OF COURT PROCESS(ES)-Attitude of Court to objection to the mode of service of Court process
PRINCIPLE:
"Here, appellants' grouse in Prayer 2 of their said motion that was not resolved by the trial Court, which forms their grouse in their incompetent issue 2, is that:
1. Processes meant for 2nd appellant were improperly served through 1st appellant without any order of Court permitting appellant to serve 2nd appellant through 1st appellant, as it were, by substituted means, and
2. That the amended writ of summons and statement of claim of respondent was served on 1st appellant through their counsel without an order of Court so permitting them. With regard to the first ambit of this complaint, it appears to me that the appellants overlooked the two prayers of respondent in its application of 24/04/2014 before the lower Court for joinder of 2nd respondent to the suit. The 2nd prayer of 1st respondent in that application (it spans pages 148 to 158 of the records) and which appellants incidentally also vehemently opposed, was for:
An order to serve all processes in this suit on the said Registered Trustees of Great Commission Movement of Nigeria, on the first Defendant within jurisdiction.
Respondent's application was granted in its entirety without reservation by the lower Court in its ruling of 18th June, 2014 (see pages 216 -222 of the records of appeal) thus (See page 222 of the records):
Accordingly, I hold that the application succeeds, and the objection fails. The application is hereby granted as prayed. (Emphasis mine.)
It is therefore not true as appellants later complained before that Court and in this appeal that leave of Court was not obtained before respondent served their amended processes on 2nd appellant through 1st appellant. The word 'Leave' in the context of application before a Court simply means permission: Ajibola v. Sodeke (2001) 23 WRN 68 @ 89; Garuba v. Omokhodion (2011) 15 NWLR (PT. 1269) 145 (SC); BBN v. Olayiwola (2005) 3 NWLR (PT. 912) 434 @ 454 (SC).
Permission was sought and granted in advance by the Court to serve processes on 2nd appellant through 1st appellant owned and run by the former. The second ambit of appellants' argument in issue 2 that processes meant for 1st appellant were served on it through its Solicitors, P. A. Akubo, SAN & Co. (incidentally still its counsel even in this appeal) without order of Court for service of same by substituted means does not in my humble opinion fare any better. It has to be realized that the processes so served on P. A. Akubo, SAN were not new but merely amended processes meant for service on his client whom he had instructions to represent in the case, was representing and is still representing. What's more, the records before this Court even further reveal (at pages 186 - 209) that the Chambers of P. A. Akubo, SAN & Co., acting on the instructions of both appellants, paid for and filed on 08/10/2014 a copious application complete with a supporting affidavit for extension of time to file and to deem as properly filed appellants' Amended Joint Statement of Defence including witness sworn statement in response to the now 'objectionable' amended writ and statement of claim served on them by respondent following the joinder of 2nd appellant. In her affidavit supporting the said application, one Mrs. Noah Jwalshik, a legal practitioner in the law firm of Akubo & Co. whose name still appear prominently on appellants brief of argument filed in this Appeal swore that she is a legal practitioner in the Chambers of Akubo & Co., Solicitors to appellants; that she was conversant with the facts she was deposing to; that she had the authority and consent of both appellants to depose to her affidavit (paragraph 2); 'that the respondent served its amended writ of summons and statement of claim on the appellants (paragraph 3) and they had 30 days to respond with their joint statement of defence but failed to do so hence the application to file same out of time (paragraph 4); that appellants' Amended Joint Statement of Defence had been prepared, filed after appropriate filing fees had been paid and same marked as Exhibit 'A' (paragraph 9).
Appellants even went further to pray the lower Court to deem their said already filed Amended Joint Statement of Defence as properly filed.
I am not unmindful of the fact that the same Chambers of Akubo & Co., later filed, on 22/10/2014 (See. P. 209 of the records) a 'Notice of Discontinuance' of that same 08/10/2014 application. The Court is nevertheless not precluded from looking at its file and any document therein even if such document was not tendered as Exhibit: Agbaisi v. Ebikorefe (1997) 4 NWLR (PT. 502) 630 @ 648 (SC); Agbahomovo v. Eduyegbe (1999) 3 NWLR (PT. 594) 170; Jikantoro v. Dantoro (2004) ALL FWLR (PT. 216) 390 @ 415 (SC). It was after appellants had filed that Withdrawal Notice, apparently in a bid to clear all likely impediments to the new angle the had set out to introduce into the proceeding that they quickly proceeded to file their motion for setting aside. Besides the incompetence of the ground on which the said issue of improper service of amended processes on counsel to 1st appellant is being challenged as I have shown, it appears to me that the said challenge was/is done in utmost bad faith. Like the lower Court, I also think that appellants are stretching the law and technicality too far. Why the law insists on service of processes
on parties and any person likely to be affected by orders of Court is simply to ensure that orders of Court are not made behind them. It is a position informed only by the need to ensure fair hearing. A defendant is therefore at liberty to accept and even respond to processes meant for him/her that were wrongly served on any other person. This was made clear by the apex Court in Harry Akande v. Gen. Elect. Co. & Ors. (1979) NSCC 51 @ 56, in its judgment delivered by Aniagolu, JSC, with their Lordships saying:
"The plaintiff took action against three defendants, the first of which is known as "General Electric Company". Service of the writ was effected on one John Maddox of the "General Electric USA (Nigeria) Limited" (not the first defendants). The first defendants entered conditional appearance and upon their failure to get the serviceof the writ set aside, filed their statement of defence in which they made some admissions relating to an alleged agreement said to be evidenced by a memorandum in writing. They must be deemed to have waived service - a course which, in law, they are entitled to. In Pike v. Naira & Col. Ltd. (1960) Ch. 553 at 560 - cited by Chief Williams - Cross, J., stated that:
'The service of the process of the Court is made necessary in the interests of the defendant so that orders may not be made behind his back. A defendant therefore, has always been able to waive the necessity of service and to enter an appearance to the writ as soon as he hears that it has been issued against him, although it has not been served on him..."
See also Action Congress v. Ordu (2010) ALL FWLR (PT. 527) when 769 @ 802 (Eko, JCA) and Idiata v. Ejeko (2005) 11 NWLR (PT. 936) 349 @ 365, Ngwuta, JCA, (as he then was).
Very recently I also had cause to address this issue in my leading judgment in Delodun Mohammed & Anor. v. Kamaldeen Salaudeen & Ors. (2017) ALL FWLR (PT. 932) 779 @ 823. There I commented as follows:
"The 1st, 5th and 6th respondents may not have gone so far as the defendants in Akande v. General Electric Co. (supra) and Action Congress v. Ordu to file a defence before applying to set aside the processes served on them; nevertheless, I think the overall effect of the law on them is the same: they clearly showed, at least, that the processes were brought to their notice and they even acted on them. In such circumstances, I think the lower Court over indulged them and allowed technicality to triumph over justice when it acceded to their prayer to set aside the processes on grounds of improper service...
"It is this kind of condemnable antics of litigants and their counsel my learned brother and friend Affen, J., of the High Court of the Federal Capital Territory, Abuja, had in mind in his unreported Ruling of 02/03/09 in Suit No FCT/HC/CV/1161/2008: Joseph Nathanial v. Fedex Red Star Express Nigeria Ltd., when he lamented that:
'There is a development or trend that reverberates in our trial Courts every now and then. It is the tendency or inclination of defendants or respondents to raise
objections as to the service on them of the Court processes on the ground that they were not served personally (in the case of natural persons); or that they were not served at the registered office or head office (in the case of companies). For the most part, the objectors do not allege non-service of the Court process on them.
In some cases, they even have the Court process with them right there in the Courtroom. Yet, instead of taking steps to defend the action against them, they relish taking objections to service. I have found this trend quite disturbing over the years. Needless delay is occasioned thereby and I am unable to assert or affirm that the
legal process has been the better for it! In my considered view, the rationale behind requiring service of Court process is to ensure that a party sued in an action receives notice of the case against him so as to enable him prepare his defence if any. Would a defendant or respondent who receives a process through a third party become any less aware of a pending suit against him because it was not delivered to him personally or the processes were served at a branch office and not atthe registered office or head office of the company? Would he or it be constrained thereby in any way in preparing for and/or putting forth his or its defence? I do not think so. The law should concern itself with whether the person sued actually received the Court processes in the pending action against him; and not whether the bailiff personally delivered the Court processes to him or that they were brought to a man's attention by his wife who was at home when the bailiff got there. It was this kind of pragmatism that Sulu-Gambari, JCA, (as he then was) alluded to in Panache Communications Ltd. v. Aikhomu (supra) when he stated at P. 431 Para. D, that 'the law does not require that a person to give it (i.e. a Court process) to them (i.e. parties to be served) must give it them by himself.'
It seems to me it is similar antic, if not even worse one, that is being employed by appellants and their counsel here, for I cannot understand what is really wrong with counsel accepting on behalf of his client amended version of a processes in a case he was already involved. That is even more so when it is realized here that the same counsel had on his client's instruction not only sworn to receipt and subsequent service of the same processes on his client but even responded, again on his client's instructions, by filing a defence to it before recanting. Appellants and counsel seem determined to employ all methods, fair and foul, including throwing the kitchen sink at the respondent and the Court if possible, to delay the hearing of the case which had even gone on at the lower Court with PW1 as far back as 2014 before they resorted to this line of action. In fact, I will be surprised if they have not already used the pendency of this appeal to stall the hearing at the lower Court. Which ever way, litigation, as this Court and the apex Court has consistently maintained, should not be employed that way. Litigation is a serious business of imperfect man's attempt at playing God, so to speak, by trying to find solutions to disputes between his fellow men even when, unlike God, he is not a witness to the facts of the case and cause of the dispute. Litigants, and especially counsel who are also honorable ministers in the temple of justice, should assist rather than constitute themselves into part of the problems. I say no more on that. I shall however add that, even if the service of the amended processes on 1st appellant through its own retained counsel was improper, it affects only such service, which this Court can even order to be properly served so that progress in the case can be made and the issues between parties determined on their merit; it is not an issue of nullification of process: See CGG (Nig.) Ltd. v. Aminu (2015) ALL FWLR (PT. 792) 1764 (SC.)." Per UGO, JCA.(Pp.29-40,Paras.C-B).
"...the need for substituted service arises because personal service cannot be affected on natural or juristic persons, the procedure for substituted service cannot be made to a Corporation, Company."
PLASTEX (NIG.) LTD. vs. MAINLAND OIL & GAS(2018)LPELR-43509(CA)
ISSUE: SERVICE OF COURT PROCESS(ES)-Whether substituted service of Court processes can be effected on a corporation or a limited liability company
PRINCIPLE:
"The critical question for resolution is whether the service of the originating processes on the corporation by substituted means and the pre-trial papers as well as the hearing notices also served on the appellant by substituted means, satisfied the requirement of the law exposed before now. I have in that context looked at the order for substituted service and paragraphs of the appellant's deposition. I have also looked at the proof of service filed by the bailiff of the lower Court. The aggregate of which is that the appellants were purported to have been served by substituted means, as was effected upon the appellants by pasting of the documents on the perimeter fence of the land in dispute. It is this mode of service that learned senior counsel wants this Court to accept as having confirmed with the service on corporations pursuant to Section 78 of the Companies and Allied Matters Act. This Court in the case of RFG LH and Anor. vs. Skye Bank Plc (2012) LPELR 7880 CA per: Ogunwumiju, JCA, on whether a corporation such as the appellant, can be served by substituted service under the High Court of Lagos (Civil Procedure) Rules 2004, held that: "In respect of service on the 1st defendant/appellant. I am aware of Section 78 of CAMA and Order 7 Rule 9 of the High Court of Lagos (Civil Procedure) Rules. Section 78 of CAMA provides... Also Order 7 Rule 9 of the rules of the lower Court provides... the Supreme Court in Mark vs. Eke (supra) per Musdapher, JSC made it clear that by the combined provisions of Section 78 of CAMA and Order 7 Rule 9 of the Lagos High Court (Civil Procedure) Rules, there cannot be substituted service on a Company. This is because the need for substituted service arises because personal service cannot be affected on natural or juristic persons, the procedure for substituted service cannot be made to a Corporation, Company. I agree in the circumstance that the order for substituted service on the 1st defendant must be set aside as erroneous. After all the registered office of a company is a matter of public record easily ascertained by the claimant who wish to effect service". See also Ben Thomas Hotel Ltd. vs. Sebi Furniture Ltd. (1989) 5 NWLR (Pt. 123) 523. The fate of the present substituted service on the appellant cannot be any different. This is more so, for whereas the appellants head office is located at Oshogbo, the Osun State Capital, the respondents pasted the processes on the land in dispute in Lagos Lagos State, which is not any of the advertised place of business of the appellants. My attention has been drawn to the case of NBC Plc. vs Ubani (supra), which I religiously studied. In its consideration of the issue whether the writ of summons issued and the service thereof on the appellant was proper and in accordance with the relevant law and Court rules, the Supreme Court identified two methods of service on a corporation. Firstly by leaving the same at the office of the corporation, in which case it has to be at the registered or head office of the company, and secondly by giving same to any director, secretary or principal officer not necessarily at the registered or head office, but in a place any of them is found within jurisdiction. The Apex Court continued to state that: "This latter method has all the features of personal service on a party he is found within jurisdiction." I must agree with the appellants that the case of NBC vs. Ubani (supra) though good law on the service of processes on any director, secretary or principal officer of the corporation anywhere any of them can be found within jurisdiction, failed to address the touchy area of whether the originating service on a corporation can be served by substituted means, and to that extent, the case of Mark vs. Eke (supra) which was not over ruled in the later case, still remains the law on the issue. As to whether the service by substituted means under the Lagos State High Court Rules is competent or not, the decision on same still remains the case of RFG & Anor. vs. Skye Bank Plc (supra). Assuming without conceding that the originating processes served on the appellants by substituted means can be said to be proper, can we say the same thing about the pre-trial forms and the hearing notice, said to have been pasted at the fence of the disputed land, and for which none of the directors or principal officers of the appellant owned up as having noticed or seen same? Can we now say that there is evidence of the receipt of the said pre-trial forms, and order of Court to which the hearing notice is said to have been indorsed thereon by the appellants? I do not think so, and to that extent, the purported service of the pre-trial processes by pasting on the wall of the disputed land on a corporation is not tenable. I therefore agree with the learned counsel to the appellant that the failure of the respondent to serve the originating processes as well as the pre-trial papers and hearing notices as required by law is a fundamental vice, and the lower Court in grave error in holding that the substituted service erroneously granted, satisfied the requirements of Order 7 Rule 9 of the Rules of the Court below. The requirement governing the service of originating processes upon a corporation is regulated by statute, and the cases of CBN vs. A.T and B.S Ltd. (2010) 9 NWLR (Pt. 1200) 567 and Ezomo vs. Oyakhire (1985) 1 NWLR (Pt. 2) 195, are with respects inapplicable."Per BARKA, JCA.(Pp.36-41,Paras.E-C).
CHUKWU vs. INSPECTOR GENERAL OF POLICE(2018)LPELR-45249(CA)
ISSUE: CHARGE(S)-Importance of personal service of a charge on an accused person; whether same can be served by substituted means
PRINCIPLE:
"The law as it concerns the service of the originating process in criminal trials, that is the Charge or Information, is very clear and to the effect that the Accused Person must be properly served before a Court can properly assume jurisdiction over the case.
The Supreme Court in HARRY v. MENAKAYA (2017) LPELR-42363(SC) Per MUHAMMAD, JSC (Pp. 36-37, Paras. E- D) held thus:
"Whenever an order or judgment made or entered against a defendant who claims and substantiates the claim that he is not served with the originating process, this Court insists that the order or judgment, being a nullity, be set-aside. The service of the originating process is a condition precedent to the exercise of any jurisdiction on the defendant. A Court's proceedings where there is non service of the initiating process constitutes a manifest breach of Section 36 of the 1999 Constitution which makes it mandatory for the Court to hear the defendant before deciding any issue against him. The lower Court in proceeding against the appellant, who is not served with the initiating processes of the appeal, stands clear breach of the Constitution. The Court's judgment suffers a fundamental defect and deserves, as rightly urged by learned appellant's counsel, to be set-aside. See Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6; Mark v. Eke (2004) 5 NWLR (Pt 865) 54 and Estate of Late Chief Humphrey I. S. Idisi v. Ecodril Nigeria Ltd. & Ors. (2016) LPELR-40438 (SC)." See: GLENCORE ENERGY UK LTD. v. FRN (2018) LPELR-43860(CA); and APUGO v. FRN (2017) LPELR-41643(CA). In criminal proceedings the conclusive originating process is the charge which must be personally served on an accused person unless otherwise ordered by the Court.
See: Garuba v. State (2014) LPELR 22133 (CA).
Sections 123 and 124 of the Administration of Criminal Justice Act 2015 are clear on the mode of service under the Act. Service of a summons on an individual shall be personal service. See Section 123 (a) of the Act. The Act however in Section 124 provides for substituted service on the person named under Section 123 (a) of the Act under certain circumstances.
For ease of reference the provisions of Section 124 of the Act is reproduced thus:- "where service in the manner provided by Section 123 (a) of this Act cannot by the exercise of due diligence be effected, the serving officer may with leave of the Court, affix one of the duplicates of the summons to some conspicuous part of the premises or place in which the individual to be served ordinarily resides or works and on doing so the summon shall be deemed to have been duly served." It is thus clear from the provisions of Section 124 of the Act that were personal service with due diligence cannot be effected the law allows the serving officer with leave of Court to serve the originating process by means of substituted service. In the instant case it is not a subject for dispute that the lower Court upon application by the Respondent exparte granted an order for substituted service of the charge on the Appellant and other co-defendents by courier and pasting at the last known address of the Appellant.
A perusal of the Record of Appeal more particularly at pages 74 and 87 leaves me in no doubt that the service of the charge on the Appellant was effected in strict compliance with the order of the Court and in compliance with the requirements of the law. Nothing had been advanced by learned counsel for the Appellant to make me hold otherwise. The Affidavits filed by the Appellant do not in my view, discredit the Affidavit of service deposed to by the Respondent on the issue of service.
I am therefore in concord with the learned trial Judge that the Appellant was properly served the charge." Per TUKUR, JCA.(Pp.9-12,Paras.E-F).
GLENCORE ENERGY UK LTD. vs. FEDERAL REPUBLIC OF NIGERIA(2018)LPELR-43860(CA)
ISSUE: CHARGE(S)-Effect of a trial conducted in the absence of evidence of proper and valid service of charge
PRINCIPLE:
"Since the trial of the Appellant was by way of information, Section 379(3) of the ACJA, would provide the foundation for the consideration of the two issues. It provides that: -
"The information and all accompanying processes shall be served on the defendant or his legal representative, if any.
Section 382(4) and (5) of the Act provides as follows:-
"(4) where the defendant is not in custody, the notice of trial and the information shall be served on him personally.
(5) where it is impossible or impracticable to effect personal service of the notice of trial and information on the defendant they may be served on him, with leave of Court, through his legal practitioner, if any, or on his surety
or sureties, or on any adult in his household or in such other manner as the Court shall deem fit and the service shall be deemed to be dully served on the defendant."
The community effect of the above provisions is that a defendant alleged to have committed an offence or a crime on an information filed before a High Court for trial, shall be personally served with the information
containing all the essential and relevant details of the offence/crime and accompanied by material processes, or with the leave Court, on his legal representative or legal practitioner, if any. The essence of the personal
service or as the case may be, through his legal representative with leave of Court, is to give notice of the defendant of the nature of the offence/crime he is alleged to have committed and which he is to be put on trial before
a Court of law so as to enable him know the nature of the allegation and to adequately prepare to defend same at the trial. This is the purport of the Constitutional provisions in Section 36(6)(a) and (b) which provides that: -
"Every person who is charged with a criminal offence shall be entitled to-
(a) To be informed promptly in the language that he understands and in detail, of the nature of the offence;
(b) To be given adequate time and facilities for the preparation of his defence."
These provisions are to give effect to the presumption of innocence on the part of any person charged with a criminal offence until proved otherwise, provided for under Subsection 5 of Section 36 of the Constitution. Being
provisions which guarantee and safeguard the right of any person charged with a criminal offence to fair hearing in the proceedings of a Court trying him for the alleged crime as provided for in Subsection (a) of Section 36,
compliance therewith, is mandatory and any breach of the provisions would lead to a denial of the right to fair hearing which would automatically render the proceedings null and void, ab initio. Ogunsanya v. State (2010) 14
NWLR (1213) 349; Yahaya v. State (supra); Sowemimo v. State (2012) 2 NWLR (1284) 372; Chidolue v. E.F.C.C. (2012) 5 NWLR (1292) 160.
There is no dispute in this appeal that the Appellant was not present at the arraignment for the trial and throughout the proceedings of the trial, conviction and sentence. The point of dispute is whether the Appellant was
duly served with the information containing the charge against it before or at the time of the arraignment to enable it know the nature of the offences it was alleged to have committed and for which it was to be tried before
the trial Court and to prepare for its defence as provided for under Section 36(6)(a) and (b) of the Constitution.
As a firm or corporation, the Appellant was to have been served with the information/charge or summons to appear before the trial Court as a defendant to answer to the allegations of the commission of the offences
contained thereon, as provided by Section 123(b) of the ACJA which says: -
"The person effecting service of a summons shall effect it by delivering it on: -
(b)A firm or corporation;
(i) To one of the partners;
(ii) To a director
(iii) To the secretary;
(iv) To the chief agent within the jurisdiction;
(v) By leaving at the principle place of business in Nigeria of the firm or corporation; or
(vi) To anyone having at the time of service, control of the business of the firm."
The argument by the Respondent is that the Appellant was served with the charge through the 4th Defendant; the captain of 1st Defendant, who was said to be in control of the business of the Appellant at the material time.
Reliance for the position was placed on the acknowledgement of the receipt of the charge by the 4th Defendant on behalf of the Appellant said to have been deposed in the affidavit of service.
Appellant, through counsel has contended that service of the charge on the 4th Defendant was not proper service on it since there was no evidence that the Defendant was it's chief agent or agent at all, within jurisdiction
required under Section 123(b)(iii) above: -
What was the evidence before the trial Court to show and satisfy the requirement of proper service of the information/charge on the Appellant as stipulated under the above provisions of Section 123(b) of the ACJA?
Starting with the proceedings of the arraignment of the Defendants before the trial Court on the 10th June, 2015, the Record of Appeal which appear from pages 99 - 104 -105, the Appellant who was the 3rd Accused, was
recorded at page 100, to be absent for the arraignment and to the plea to all the counts on the charge, there is no record that it was represented by counsel or any other legal representative. From the 18th June, 2015 when
the prosecution opened its case with PW1 up to the time the proceedings in the trial ended with the judgment delivered on the 18th March, 2016, convicting and sentencing all the Defendants for the offences charged, the
Record of Appeal shows that the Appellant was recorded to be absent from and was not represented by either counsel or any other legal representative at the entire proceedings of the trial.
In its judgment, in reaction to the application by the learned SAN who represented the 1st and 4-7th Defendants at the trial, that since the 2nd and 3rd Defendants; foreign companies resident abroad, were not served with the
charge nor physically represented at the time of the arraignment, should be struck off the charge, the trial Court, inter alia, said that: -
The Court observe that the defence argued strenuously to the effect that this charge be struck out against the 2nd and 3rd Defendants because they were neither served with the charge nor represented physically at the
time of arraignment before the Court for the purpose of taking their pleas.
The Court read all the process filed, and the arguments of learned Counsel. The Exhibits tendered and admitted both documentary and real Exhibits. This court shall take the liberty to address the issue of the service
and representation of the 2nd and 3rd Defendants.
As stated elsewhere in this judgment there is the affidavit of service on the 2nd and 3rd Defendants; on the Captain of the vessel, the 4th Accused who duly signed and collected without any objection and indeed an affidavit
of service was filed in Court by Ajakaye Tina of the Economic and Financial Crimes Commission.
In any case the point must be made very clear from the onset that learned Counsel for the Defendants throughout the proceedings before this Court never appeared for the 2nd and 3rd Defendants.
Therefore this Court is of the firm view that learned Counsel who did not appear for a party cannot in the final address seek to nullify the proceedings in a trial he has participated without representing that party on account
of non-service."
The trial Court then, after setting out Sections 351, 352 and 553 of the ACJA, stated and held that: -
"This Court shall not waste any time on the issue. The Court is also of the firm view that the prosecution made the point when it submitted that the service on the charge on the 2nd and 3rd Defendants on the Captain of the
Vessel who at the time of service of the charge was the agent of the 2nd and 3rd Defendants and had the control of their business in relation to the charge, is a proper service. By dint of Section 123 of the Administration of
Criminal Justice Act, 2015, on the 8th day of June, 2015 the 4th Defendant received and also acknowledged the receipt of the charge on the 2nd and 3rd Defendants.
Also, the 2nd Defendant was ably represented during trial. As a matter of fact, the DW1 Sam Collard admitted both during examination in chief and during the cross examination that NYA was contracted to prepare Exhibit
D4, D5 and D6. He also admitted that he came to Court at the instance of the 2nd Defendants. In view of the glaring evidence before this Court, the Court agrees and holds that the 2nd and 3rd Defendants are aware of the
proceedings."
Relying on Section 478 of the ACJA, the trial Court held that it was empowered to enter a plea of not guilty in the absence of the Appellant and 2nd Defendant.
From the above reasoning by the trial court, it
relied solely on the acknowledgement of service by 4th Defendant on behalf of the Appellant, hook line and sinker, without a consideration of whether, in the context of the provisions of Section 123(b)(iv) and (vi) of the ACJA,
the 4th Defendant was in fact, a chief agent of the Appellant within jurisdiction or that he controls any business the Appellant might have in Nigeria for him to be validly served with the charge for the Appellant. In the first
place, there was no suggestion, let alone any evidence howsoever, before the trial Court to establish or even show reasonably that the Appellant had at the material time, any ongoing business in Nigeria which the 4th
Defendant was in control of. The trial Court had facts and evidence before it which showed beyond any shadow of reasonable doubt, that the 4th Defendant was arrested on board the 1st Defendant; a foreign ship which
sailed to Nigeria, detained and arraigned before it for the offences he, the Appellant and other Defendants were charged for and so could not, in the absence of cogent and credible evidence, be held to be in control of the
Appellant's business in Nigeria for the purpose of proper service of the charge against it.
The mere fact that the 4th Defendant accepted service of the charge from an officer of the EFCC after his arrest does not, on the basis of the ipse dexit of the said officer, amount to proper service of the charge on the
Appellant in the absence of any evidence that apart from being the captain of the 1st Defendant, he was also a legal representative or agent of the Appellant for the purpose of the trial. In fact, a duplicate copy of the charge
served on the 4th Defendant for the Appellant with an endorsement that he acknowledged service as agent, representative or as the person in charge of the Appellant's business in Nigeria at the material time, was not
attached to the Affidavit of Service by the officer, as proof of the substituted service of the charge as required under Section 130 of the ACJA. The section provides that: -
An affidavit or declaration made before a Court by the serving officer or by a witness to the service or return slip of a registered courier service company that a summons has been served and a duplicate of the summons
endorsed, by the person to whom it was delivered or tendered or with whom it was left is admissible in evidence and the statements made in it is deemed to be correct unless and until the contrary is proved."
Then Section 477(2) of the Act defines "representative" in relation to a corporation as follows: -
"In this Part "representative" in relation to a corporation means a person duly appointed by the corporation to represent it for the purpose of doing any act or thing which the representative of a corporation is by this part
authorized to do, but a person so appointed shall not by virtue only of being so appointed, be qualified to act on behalf of the corporation before any Court for any other purpose."
Subsection (3) of the section provides for how the appointment of a representative of a corporation for the purpose of the Act, may be proved. It says that: -
"A representative for the purpose of this part could not be appointed under the seal of the corporation, and a statement in writing purporting to be signed by a managing director of the corporation, or by any person (by
whatever name called) having, or being one of the persons having, the management of the affairs of the corporation, to the effect that the person named in the statement has been appointed as the representative of the
corporation for the purposes of this part, shall be admissible without further proof as prima facie evidence that the person has been so appointed."
In order to show and prove a proper and valid service of the information and charge on the Appellant through a representative, there must not only be evidence of the due appointment of the person by the Appellant, in
writing purported to be signed by its Managing Director or by any person, having or being one of persons having the management of the affairs of the Appellant as required in the above provisions, but that the said
representative was in fact served and he acknowledged the service on the duplicate copy to be returned to the Court by the officer who effected the service, as proof of such service in compliance with the provisions of
Section 130 of the Act.
I am in agreement with the learned counsel for the Appellant, because he is right, that the Record of Appeal does not show any evidence of the due appointment of the 4th Defendant by the Appellant as its representative for
the purposes of the allegations made against it in the information and charge filed before the trial Court. In the absence of such due appointment and evidence of proper service of the information and charge on the Appellant in any manner provided for under the Act, the finding that the Appellant was properly served through the 4th Defendant, cannot be supported by the law since it has no basis in the facts and evidence before the trial Court.
It was therefore erroneous for the Court to have relied on Section 478 of the Act to enter a plea of not guilty for a Defendant who was not served with the information/charge and the notice of the arraignment and trial.
The provisions of the section would only be applicable when there was satisfactory evidence before a trial Court that the corporation in question was either served as provided under Section 123(b) or on a representative
prescribed under Section 477(2) and (3) of the Act.
In any case, as demonstrated earlier, Sections 379(3) and 382(4) and (5) of the ACJA, require that the information and notice of trial shall be served personally on a Defendant or with the leave of Court, through his legal
practitioner, surety or, as the case may be, in such other manner as the Court may deem fit. The law has therefore specifically provided for how proper service of an information and notice of trial on a Defendant is to effected
or carried out.
In Ude v. Nwara (1993) 2 NWLR (278) 638 @ 661, it was held by the apex Court per Nnaemeka Agu, JSC, that the law is trite that when the provisions of a statute prescribed the procedure or method of carrying out a duty,
that procedure or method and no other, would be valid in law, in the discharge of the duty. See also CCB v. A.G. Anambra State (1992) 18 NWLR (261) 528; Nitel v. Ocholi (2001) 10 NWLR (720) 188; Obu v. NNPC (2003) 9 WRN, 76.
There is no suggestion in this appeal that the Appellant was in fact served with the information and notice of the trial of the offences for which it was charged before the trial Court, in accordance and compliance with the
specific procedure provided for in the aforenamed sections of the ACJA for proper and valid service of the said processes on Defendant. The Record of the Appeal does not bear out any evidence of compliance with the
provisions of the law on the proper service of the information and notice of trial on the Appellant and so there was no legal, factual and evidential basis for the conclusion by the trial Court that there was proper and valid
service of the information, charge and notice of the trial for the offences with which it was accused before it.
In effect, there was no evidence that the Appellant in fact or law, knew of the allegations of the commission of the offences made against it or of the arraignment and trial before the trial Court for the said allegations. The
record of the trial Court showing that the Appellant was absent and not represented by either a legal practitioner or representative from the date of arraignment up to the date of judgment, I agree with the learned counsel
for the Appellant, clearly shows and there is no doubt whatsoever, that the Appellant was not properly and validly or at all, served with the information, containing the charge and the notice of the trial for the offence, it was
alleged to have committed, to enable it know the nature of the offences and have notice of the arraignment and trial before the arraignment.
I should state and point out that the Appellant's case is different from that of the 2nd Defendant; Monjasa, DMCC; who was the Appellant in Appeal No: CA/L/909/CK16 in the sense that the lower Court had found that it was
represented at the trial by DW1, Sam Collard, who gave evidence that he was at trial at the instance of the 2nd Defendant. It was because the 2nd Defendants was aware of the proceedings of the trial that it sent DW1 to
testify. Where parties to a case are aware of proceedings otherwise than by way of direct service of processes and are present or duly represented, at the hearing and did not protest non-service, the need or requirement for
proof of service of the processes of Court becomes non-sequitur for the purpose of the proceedings. Janason Trinagles v. CM & P. Ltd.(2002) 15 NWLR (789) 176; Onadeko v. UBN (2005) ALL FWLR (250) 57.
In addition, there was evidence that the 2nd Defendant had connection with the charge of the 1st Defendant and its captain; the 4th Defendant who received service of the information and charge on its behalf and that was
why the DW1 appeared and testified at the
trial in defence of the charge.
The absence of the Appellant from the arraignment, throughout the proceedings of the trial and when the trial ended with the delivery of judgment, shows that the Appellant's right guaranteed under the provision of Section
36(6) of the Constitution and the mandatory provision of Section 271(2) of the Constitution was denied and breached from the beginning of proceedings against it. In law, there was no valid arraignment of the Appellant
before the trial Court for prosecution in respect of the offences it was alleged to have committed. A valid arraignment in law, would consist of the following: -
(a) That the accused person who is to be tried should be physically present before the trial Court, unfettered.
(b) The charge preferred against the accused shall be read and explained to him in the language he understands to the satisfaction of the trial Court,
(c) That the accused person be called upon to plead to the charge, instantly and
(d) That the plea of the accused person be recorded by the trial Court.
These requirements must be met or fulfilled together or that all of them must be satisfied at
the time of the arraignment for it to be valid in law. See Section 356(1) of the Administration of Criminal Justice Act, Ayodele v. State (2011) 6 NWLR (1243
