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Alhaji Abdulkardir Abacha v Kurastic Nigeria Limited [2014] – CA

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➥ CASE SUMMARY OF:
Alhaji Abdulkardir Abacha v Kurastic Nigeria Limited [2014] – CA

by B.C. “PipAr” Chima

➥ COURT:
Supreme Court – CA/A/406/2010

➥ JUDGEMENT DELIVERED ON:
Thursday, the 27th of March, 2014

➥ AREA(S) OF LAW
Service of writ;
Fraud;
Signing of court process.

➥ NOTABLE DICTA
⦿ WHAT IS INTERLOCUTORY AND WHAT IS A RULING?
My humble view is that the word “interlocutory” simply means “(of an order, judgment, appeal, etc) interim or temporary; not constituting a final resolution of the whole controversy.” A “ruling” is “the outcome of a Court’s decision either on some points of law or on the case as a whole.” See Blacks Law Dictionary, 9th edition, pages 889 and 1450. — J.T. Tur, JCA.

⦿ WHAT IS AN APPEARANCE BEFORE A COURT?
I use the word “appearance” as, “A coming into Court as a party or interested person, or as a lawyer on behalf of a party or interested persons; esp., a defendant’s act of taking part in a law suit, whether by formally participating in it or by an answer, demurrer, or motion, or by taking post judgment steps in the law suit in either the trial Court or an appellate Court.” See Blacks Law Dictionary, 9th edition, page 113. — J.T. Tur, JCA.

⦿ COURT EXERCISES JURISDICTION ONLY OVER THOSE WHO ARE WITHIN ITS TERRITORIAL JURISDICTION
Courts exercise jurisdiction over persons who are within its territorial jurisdiction: Nwabueze vs. Obi-Okoye (1988) 10-11 SCNJ 60 at 73; Onyema vs. Oputa (1987) 18 NSCC (Pt. 2) 900; Ndaeyo vs. Ogunnaya (1977) 1 SC 11. Since the respondent was fully aware that before the issuance of the writ the appellant’s abode or residence for the past one year was no longer at No.189, Off R.B. Dikko Road, Asokoro, Abuja within jurisdiction, substituted service of the processes should not have been ordered by the learned trial Judge. — J.T. Tur, JCA.

➥ LEAD JUDGEMENT DELIVERED BY:
Joseph Tine Tur, J.C.A.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Mr. Onoja, Esq.

⦿ FOR THE RESPONDENT
Maikyau, SAN.

➥ CASE HISTORY
On the 23rd day of December, 2005, Kurastic Nigeria Ltd. brought an ex-parte application before the High Court of the Federal Capital Territory, Abuja praying for leave to place a writ of summons under the Undefended List Procedure pursuant to Order 21 rule 1 and Order 11 rule 5(1)(d) of the High Court of the Capital Territory, Abuja (Civil Procedure) Rules, 2004 and the inherent jurisdiction of the Court. The second prayer was for leave to serve Alhaji Abdulkardir Abacha the originating processes and orders that may be subsequently issued by the Court by substituted means, namely, “By delivery of same to an adult inmate at the residence of the Defendant/Respondent at No. 189 Off, R. B. Dikko Road, Asokoro, Abuja, the venue where the transaction which gave rise to this suit was entered into.”

The enrolled order of the Court below at page 17 of the printed record contains the hearing notice showing that “the cause was to be heard on the 6th day of March, 2006.” Page 51 of the printed record contains the Certificate of Service endorsed by Mohammed Gaba, Senior Court Bailiff to the effect that service was effected on the 15th day of February, 2006 at 10:00am on Musa Ishaya. When the appellant did not appear his Lordship delivered judgment on the 6th day of March, 2006 in favour of Kurastic Nigeria Ltd. as per the writ of summons.

On the 20th day of February, 2007 Alhaji Abdulkardir Abacha brought a motion on notice (that the subject matter before the Court is illegal & that judgement was obtained by fraud) supported by affidavit praying that the judgment should be set aside.

Because of the conflicting affidavits coupled with documentary exhibits his Lordship called for oral hearing to resolve the conflicts. Parties tendered oral and documentary exhibits. Thereafter his Lordship considered these before dismissing the application on 23rd day of September, 2010.

Hence this appeal by the Defendant/Appellant.

➥ ISSUE(S) & RESOLUTION
[PRELIMINARY: DISMISSED]

I. The competency of this appeal has been challenged by way of preliminary objection on the grounds that the ruling of 23rd September, 2010 was an interlocutory decision, that all the grounds of appeal are of facts or mixed law and fact. In that case leave of the lower Court or this Court is required to render this appeal competent.

Available:  Julius Berger Nigeria Plc & Anor v. Mrs. Philomena Ugo (2020)

RULING: THE ABOVE PRELIMINARY OBJECTION OF THE RESPONDENT WAS DISMISSED.
A. Thus, having dismissed the appellant’s application to set aside the judgment of 6th March, 2006 as lacking in merit, the learned trial Judge had completely, like Pontus Pilate, washed his hands from the case except to entertain perhaps, applications for cost, or stay of execution, etc. The ruling must be treated as final. Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 as altered reads as follows: “241(1) An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:- (a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.” Hon. Justice L.H. Gummi, OFR, Chief Judge of the High Court of the Federal Capital Territory, Abuja was sitting at first instance when his Lordship delivered the ruling of 23rd September, 2010 hence the appellant does not require leave to appeal to this Court. The preliminary objection lacks merit and is dismissed.

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[ON MERIT: APPEAL ALLOWED]

***APPEAL: THE APPEAL SUCCEEDED ON THE FIRST ISSUE ALONE BECAUSE IT GOES TO JURISDICTION OF THE COURT.

I. Whether the learned trial Chief Judge was right in the circumstances to hold from the available evidence, that the Appellant was properly served?

RULING: IN APPELLANT’S FAVOUR.
A. If the respondent/cross-appellant knew that the “usual or last known place of abode or business” of the appellant for the past one year before the writ of summons was issued was that he was abroad, surely, I am of the candid opinion that paragraph 3 of Senator Kura Mohammed’s affidavit that the defendant resides at Plot 189, Off R. B. Dikko Road Asokoro in Abuja within the jurisdiction of this Honourable Court at the time of filing the application for issuance of the writ of summons is not supported by credible evidence. An “adult inmate” upon whom the processes are to be delivered where the Court grants leave that substituted service be effected, should be an adult person living in such a place. He or she is one who lives with others in a dwelling. It has to be shown that Musa Ishaya on whom the processes were delivered was an adult inmate at Plot 189 Off R.B. Dikko Road, Asokoro, Abuja and that he would be in a position to deliver the processes upon receipt to the appellant. This information or requirement is absent in Form 3. The Certificate of Service, Form 3 merely stated that the appellant was served the processes, “…at his residence,” on “Musa Ishaya.”

B. The respondent did not place before the lower Court an affidavit of service sworn to by the bailiff that effected service nor a certificate of service showing, “…the manner in which the person serving ascertained that he served the process on the right person” for “…every entry in the book or an office copy of any entry” to “be prima facie evidence of the several matters stated in it.” Without strict compliance with the provisions of Order 11 rules 5(1)-(2), 28 and 31 of the Rules (supra), it cannot be categorically asserted that a certificate of service coupled with an affidavit sworn to by a bailiff or the person that effected service constituted prima facie evidence that the processes were served on the right person.

C. The proceedings in the lower Court were commenced with an invalid writ of summons hence the delivery of the processes to Musa Ishaya was a nullity. The trial Court lacked the jurisdiction to hear the substantive suit and to enter judgment against the appellant. When a writ and service are nullities, the Court lacks the jurisdiction to make any competent pronouncements. This is because jurisdiction must be vested in a Court before the rights of a party can be determined. See Kalu vs. Odili (1992) 6 SCNJ (Pt. 1) 76 at 90.
.
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II. Whether the Ruling delivered on 23rd September, 2010 is a nullity having regards to its delivery almost one year after conclusion of final addresses?

Available:  Skye Bank Plc v. Haruna & Ors (CA/K/264/2011, 17th December, 2014)

RULING: IN RESPONDENT’S FAVOUR.
A. The appellant has not shown how he suffered a miscarriage of justice though the delivery of the ruling was in contravention of Section 294(1) of the Constitution (supra). The miscarriage of justice which the appellant established was not in the delivery of the ruling outside the ninety days period prescribed by the Constitution but is in issuing a Writ and serving the processes by way of substituted service within jurisdiction when at the time of issuance and service of the processes the appellant was outside the jurisdiction of the Court.
.
.
III. Whether the judgment ought to have been set aside on grounds that it was obtained by fraud and that the judgment enforced an illegal agreement?

RULING: IN RESPONDENT’S FAVOUR.
A. Furthermore, the appellant has not been able to establish that the contract was illegal. In Osborn’s Concise Law Dictionary, 9th edition, edited by Sheila Bone, page 198, the learned author defines the word “illegal” as “An act which the law forbids. It can be contrasted with acts which the law will disregard, such as a void (q.v.) contract.” The author then describes an “illegal contract” as “A contract that is prohibited by statute (e.g. under the Gaming Act, 1845) or at Common Law as being contrary to public policy (such as agreements in restraint of marriage). It is void (q.v.) and neither party can recover money paid under it.”

B. I cannot see how the provisions of the above statute [Section 10(a)(i) and (ii) of the Independent Corrupt Practices and Other Related Offences Act, 2000] can by any stretch of judicial interpretation be construed to apply to Exhibit “A” which is the foundation of the relationship between the appellant and the respondent to be an “illegal contract”. The Independent Corrupt Practices and Other Related Offences Act No. 5 of 2000 define in Section 2a “Public Officer” to mean, “a person employed or engaged in any capacity in the public service of the Federation…”etc. In paragraph 5 of the affidavit in support of the exparte application sworn to on 23rd December, 2005 the deponent described himself as a “Public Affairs Consultant”. See also paragraph 5 of the affidavit in support of the substantive motion on notice sworn to by the deponent on the same 23rd December, 2005. There is nothing from all the processes filed in the Court below by the appellant to the contrary. I therefore hold that the provisions of Section 10(a)(i) and (ii) of the Independent Corrupt Practices and Other Related Offences Act No. 5 of 2000 has no application to the facts of this appeal.

C. My humble opinion is that the appellant has not established the illegality of the contract. See Alao vs. ACB (1998) 2 SCNJ 17; Sodipo vs. Lemminkainem OY (No. 2) (1986) 1 NWLR (Pt. 15) 220 and Chief Onyuike III vs. Okeke (1976) 1 All NLR (Pt. 1) 181.

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***CROSS-APPEAL: ALLOWED.

I. Whether the trial Court was right to have held that the motion on Notice dated 20th February, 2007 purportedly prepared by a legal practitioner but signed by an unknown person, was a competent process?

RULING: IN CROSS-APPELLANT’S FAVOUR.
A. Whoever signed the motion filed on 20th February, 2007 to set aside the judgment of 6th March, 2006 did not state his name or status but merely appended a signature. It is not possible to decipher whether he is a legal practitioner, clerk in Chambers or a quack. Besides, the motion was signed “F:” (meaning “For” Aliyu Umar, Esq. A document or contract signed “For and on behalf” etc, connotes agency. However, in certain situations, this is rebuttable, where for example, the person signs in his own name without making it clear the existence of a principal. See Brandt & Co. vs. Morris & Co. (1916-17) All E.R. Rep. 925. In this case since there is no indication as to who signed the motion of 20th February, 2007 for Aliyu Umar, Esq., the motion was incompetent. I refer to the authorities cited by the learned silk in argument.
.
.
II. Whether in view of the provisions of Order 1 rule 2(b) of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004, the Motion on Notice dated 20th February, 2007 was a proper mode of seeking to set aside the judgment of the trial Court delivered on the 6th of March, 2006 on the ground of fraud?

Available:  Gilbert Ezeigwe V. Awawa Awudu (2001)

RULING: IN CROSS-APPELLANT’S FAVOUR.
A. See Flower vs. LLoyd (1878) 10 Ch. D. 327, Jonesco. vs. Beard (1930) All E.R Rep. 483. Thus the controversy has been settled that the established practice for applying to set aside a judgment obtained by fraud under English jurisprudence is not by affidavit evidence, but by a fresh action. That to invoke a motion supported by affidavit or invoke the powers of the Court of Appeal is a departure from the established practice. The Supreme Court of Nigeria has also held the same views in a plethora of authorities: Olufunmise vs. Falana (1990) 4 SCNJ 142 at 157; WAA Ltd vs. Ajanaku (1971) 1 NWLR 194; Folami vs. Cole (1990) 4 SCNJ 18; Nwobodo vs. Onoh (1984) SCNLR 1, Talabi vs. Adeseye (1972) 8-9 SC 20 at 40. See also the authority cited by the learned silk appearing for the cross-appellant. All Courts subordinate the Supreme Court are, by the doctrine of stare decisis and judicial precedent, bound to follow the decisions of the Supreme Court. Furthermore, as the process for commencing proceedings prescribed under Order 2(1)(b) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 to set aside the judgment based on an allegation of fraud was not followed by the cross-respondent, it is hereby declared null and void. In other words, the motion on notice praying to set aside the judgment delivered on 6th day of March, 2006 was incompetent. See Quo Vadis Hotels Ltd. vs. Commissioner of Lands, Mid-Western State of Nigeria vs. Chief Francis Edo-Osagie (1973) 1 All NLR (Pt. 1) 715. Where the procedure adopted to ventilate grievances is wrong, the processes ought to be struck out: Odiase & Anor. vs. Agho & Ors. (1972) 1 All NLR (Pt. 1) 170 at 177.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Section 10(a)(i) and (ii) of the Independent Corrupt Practices and Other Related Offences Act, 2000.

➥ REFERENCED (CASE)
⦿ WHAT IS A FINAL JUDGEMENT?
In Obasi Brothers Merchant Co. Ltd. vs. Merchant Bank of Africa Securities Ltd. (2005) 2 SCNJ 272, Pat-Acholonu, JSC held at page 278 that: “A final judgment is one which decides the rights of parties. In other words it is a decision on the merits of the case where the matter is assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the Courts by the legal combatants.”

⦿ FINAL VS INTERLOCUTORY DECISIONS: DISTINCTION
In Clement C. Ebokam vs. Ekwenibe & Sons Trading Company Ltd. (1999) 7 SCNJ 77, Kalgo, JSC held at page 87 that: “…Where the decisions of the Court under consideration clearly and wholly disposes of all the rights of the parties in the case, that decision is final. But where the decision only disposes of an issue or issues in the case, leaving the parties to go back to claim other rights in the Court, then that decision is interlocutory. And in order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order.”

⦿ AN ILLEGALITY CANNOT BE MADE THE SUBJECT MATTER OF AN ACTION
In Langston vs. Hughes (1813) 1 M&S 593 or 12 Digest 270 at 2214, Ellenborough, C.J., held that: “What is done in contravention of the provisions of an Act of Parliament cannot be made the subject-matter of an action” cited in Bostel Bros. Ltd. vs. Hurlock (1948) 2 All E.R. 312 at 313.

⦿ FRAUD VITIATES; FRAUD MUST BE PLEADED AND PROVED STRICTLY
In the Duchess of Kingston’s Case (1775-1802) All E. R. Rep. 623 at 629 De Grey C. J., held that: “…Fraud is an extrinsic, collateral act, which vitiates the most solemn proceedings of Courts of Justice. LORD COKE says, it avoids all judicial acts, ecclesiastical or temporal.” Again in Fabunmi vs. Agbe (1985) 1 NWLR (Pt. 2) 299, Obaseki, JSC held at page 319 paragraph “C” that: “…Fraud is a serious crime and in civil matters, the particulars must be pleaded and proved strictly.”

➥ REFERENCED (OTHERS)

End

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