THE VALIDITY OF THE SERVICE OF A COURT PROCESS SERVED AT A BRANCH OFFICE

The written address below was filed  in support of a preliminary  objection filed on  behalf of MTN NIGERIA COMMUNICATION LIMITED (the 2nd Defendant). 

I raised three(3) issues of law for  the  determination of Her Lordship,Majekodunmi. J  to wit:

1.   Whether the 2^nd Defendant ought not to be served at its registered/head office in Lagos State.

2.   Whether any service effected on the 2^nd Defendant at their branch office in Ogun State instead of its head or registered office in Lagos State is not bad and ineffective service.

3.   Whether  Ogun State High  is  the proper  venue of adjudication of the Claimant’s suit. 

The Honourable Court on the 15th of October,2012 answered  issues one and two in the affirmative and answered issue three in the negative and consequently struck out the suit.

                                   IN THE HIGH COURT OF OGUN STATE

                                  IN THE ABEOKUTA JUDICIAL DIVISION

                                           HOLDEN AT ABEOKUTA

                                                                                          Suit No. AB/257/11

BETWEEN:

PROFESSOR SYLVIA UZOCHUKWU              ----      CLAIMANT/RESPONDENT

AND

1.   GUARANTY  TRUST  BANK  PLC                  ----     DEFENDANT/RESPONDENT

         

2.   MTN NIGERIA COMMUNICATION LIMITED    ----  DEFENDANT/OBJECTOR

WRITTEN ADDRESS OF THE 2ND  DEFENDANT/OBJECTOR

PART   A:    PRELIMINARIES

1.0           INTRODUCTION:

1.1           This is a written address in support of the notice of preliminary objection wherein the 2^nd  Defendant is objecting to the jurisdiction of the Honourable Court to hear and the determine the this suit against the 2^nd  Defendant on the following grounds to wit:

1.       The 2^nd Defendant was not serve with the Claimant’s originating processes at its registered/head office in Lagos State.

2.           The 2^nd Defendant’s registered/head office is outside the jurisdiction of the Honourable Court.

3.      Any service of originating processes on the 2^nd Defendant at its branch office in Ogun State is bad and ineffective service.

4.              The cause of action and/or the wrong complained of by the Claimant occurred outside the jurisdiction of the Honourable Court.

2.0           STATEMENT OF FACT

2.1           The facts that gave birth to the objection of the 2^nd  Defendant are not contentious facts but facts apparent on the face of the writ of summons and statement of claim as stated hereinafter.

2.2        The 2^nd Defendant is a Company registered under the Company and Allied Matters Act 1990 carrying on the business telecommunication and having its registered office address at Golden Plaza,   Awolowo Road, Falomo, Ikoyi, Lagos, outside the Ogun State High Court jurisdiction.

2.3        The Claimant instead of filing this suit in the Lagos State jurisdiction where the registered/head office of the 2^nd Defendant is filed it in Ogun State jurisdiction.

2.4        Similarly, the Claimant did not effect service on the 2^nd Defendant at its registered/head office in the Lagos State jurisdiction.

3.0           ISSUES FOR DETERMINATION

We respectfully submit that, the issues that call or arise for determination of the Honourable Court under this preliminary objection are issues of law to wit:

1.   Whether the 2^nd Defendant ought not to be served at its registered/head office in Lagos State.

2.   Whether any service effected on the 2^nd Defendant at their branch office in Ogun State instead of its head or registered office in Lagos State is not bad and ineffective service.

3.   Whether  Ogun State High  is  the proper  venue of adjudication of the Claimant’s suit

PART B – ARGUMENT

4.0           ISSUES 1 AND 2 ARGUED TOGETHER

4.1           We respectfully seek to argue issues one (1) and two (2) together in the manner appearing thereafter.

Whether the 2^nd Defendant ought not to be served at its registered/head office in Lagos State.

AND

Whether the service effected on the 2^nd Defendant at their branch office in Ogun State instead of its head or registered office in Lagos State is not bad and ineffective service.

4.2           The 2^nd Defendant is a Company registered under the Company and Allied Matters Act 1990  and  Section 78 of the said Act provides that:

 “A court process shall be served on a company in a manner provided by the Rules of Court and any document may be served on a company by leaving it at, or sending it by post to, the registered office or head office of the company”

4.3           We submit that under the Civil Procedure Rules which includes the Ogun State High Court (Civil Procedure) Rules 2008 particularly Order 7 Rule 9, the valid venue for purposes of service of the court’s originating process on a company registered under the Company and Allied Matters Act is the registered/head office of that company, which is where the central management of the company   resides. See Nigeria Bottling Company Plc. V. Ubani (2009) ALL FWLR (Pt.497) 80 at 90 -101,paras. C-B

4.4           This  principle of law was well expounded by the Supreme Court in Kraus Thompson Org. Ltd v. UniCal  (2004) 9 NWLR (Pt. 879) 631 at 655 - 656,paras. H- E, per  Musdapher,  JSC (as he then was)   graphically thus:

“There is no dispute that in addition to its main office, placeof business the respondent has a liaison office in Lagos.  Inmy view its residence or place of business can only bedetermined from the test applied to corporations or companies under the Civil Procedure Rules.  It has been judicially pronounced that the residence of a corporation isthe place of its central management and control.  This is normally the place where the Board of Directors functionsor the place of business of the Managing Director or thatof the parent company and not a branch office or liaison office.  See Unit Construction Company Ltd V. Bullock (1960) AC 351.  The issue as to where the control is, isone of fact.  See Union Corporation V .I.R.C. (1952) 1ALL ER 646 at 657. It does appear reasonable to say that what could determine the residence of a University suchas the respondent herein may be the place of its central management and control.  This is the place where the Vice Chancellor works or the main campus.  The appellant has alluded to the observation made by the court below, to theeffect that the service of the originating processes in the liaison office was valid, although not strictly an issue beforethis Court, I am of the view that the observation is erroneous. A corporate body in this context, either a companyregistered under the Companies And Allied Matters Act,1990 or a statutory Corporation such as the respondent in this case, can only be served under the relevant rules ofcourt, by giving the writ of Summons or document to any director, trustee, secretary, or other principal officer of thecorporate body to be served, or by leaving the same at its registered or Head office.  It is bad or ineffective to servethe documents at any branch office.

4.5           Consequently, we submit that the failure to serve the originating process of this suit  on the 2^nd Defendant at the 2^nd Defendant’s  registered/head  office in Lagos State, where its central management and/or its principal officers  resides  is a failure which goes to the root of the jurisdiction of the Honourable Court and deprives the Honourable Court  the  jurisdiction  to  entertain, hear  and determine the  suit  against  the  2^nd Defendant.

4.6           Similarly, we submit that any purported service on the 2^nd Defendant at its branch office in Ogun State is a bad service and an ineffective service not statutorily or judicially recognised. Therefore, such a service is an invalid service in the light of the statutory and judicial authorities referred to above.

4.7           In this vein, the Supreme Court in the celebrated case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341, laid down the conditions precedent required before any Court can assume jurisdiction over any matter and these conditions include the fact that the case comes before the Court, initiated by due process of law and upon the fulfilment of any condition precedent to the exercise of jurisdiction.

4.8           Thus,  the Supreme Court  in Sken Consult (Nigeria) Ltd. & Anor v. Ukey (1981) 1 SC 6 - also reported in  LC VOLUME 1 (2004)  656  - relying on  the authority of  Madukolu’s  case supra held that the service of court process on the defendant is a condition precedent required before any court of law can assume jurisdiction to hear and determine any matter before it , at page 26-27, Nnamani JSC, instructively puts thus:

“A court can only be competent if among other things all the conditions precedent for its having jurisdiction are fulfilled. In Madukolu & Ors V. Nkemdilim (1962) 1 All NLR 587 at 594; Bairamian F. J. (as he then was) stated the principles which have been accepted in successive cases in this court.“A court is competent”, he said, “when:-

(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

(2)      The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well concluded and decided; the defect is extrinsic to the adjudication.” (Underlining mine)

The service of process on the defendant so as to enable him appear to defend the relief being sought against him and the appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.” [UNDERLINING SUPPLIED]

4.9           The Supreme Court in the said Sken Consult (Nigeria) Ltd. & Anor v. Ukey (supra) went further to hold that if a party is not served or properly served, any proceeding embarked on by the Court thereafter is void, citing the trite dictum of Lord Denning MR in MacFoy v. UAC Ltd. (1962) AC 152, that:

“You cannot put something on nothing and expect it to stay there. It will collapse.”

4.10           Similarly, in the more recent case of Teno Engineering Limited v. Adisa (2005) 21 NSCQLR 563, Niki Tobi, JSC, at pages 567-568 echoed   that:

“Failure to serve process where service of process is required is a failure which goes to the root of the jurisdiction of the court. Any proceedings in such cases are a nullity.”

4.11           We therefore urge the Honourable Court to hold that it lacks the jurisdiction to hear and determine the Claimant’s suit against the 2^nd Defendant.

5.0           ISSUE THREE

Whether Ogun State High is the proper venue of adjudication of the Claimant’s suit.

5.1           Order 2 Rule 4 of the Ogun State High Court (Civil Procedure) Rules 2008 provides that :

“All suits shall be commenced and determined in the Judicial Division in which the defendant resides or carries on business or in which the cause of action arose”

5.2           We submit therefore that, the Claimant erred in law when it choose to file this suit in the Ogun State judicial jurisdiction simply because the 2^nd Defendant has a branch office there. Irrespective of the fact that:

1.           The cause of action arose outside the jurisdiction of the Honourable Court.

2.           The Defendants register/head offices are outside the jurisdiction of the Honourable Court.

3.           The wrong complained of by the Claimant occurred outside the jurisdiction of the Honourable Court.

5.3           We submit further that, the proper venue of adjudication of the Claimant’s suit is not the Ogun State judicial jurisdiction but the Lagos State judicial jurisdiction, where the head office of the 2^nd Defendant is. We humbly rely on the decision  of the  Court of Appeal in George v. Savannah  Bank of Nigeria Plc (2010) ALL FWLR (Pt. 508) 312 at 325- 326 ,paras. G-A per Aboki,JCA thus:

“The venue of adjudication in respect of individual is the residence of the parties and in the case of companies, the place where the headquarters or principal office of the company or body corporate is situated. In the instant case, the plaintiff wrongly instituted his action at a judicial division where the defendant has a branch and not at the corporate headquarters of the bank, therefore, the court properly struck out the suitfor want of jurisdiction. See Olayiwola v. Nwadike (1961) NMLR 15”

[Underlining supplied]

5.4           Consequently, we submit that Ogun State High is not the proper venue of adjudication of the Claimant’s suitagainst the 2^nd Defendant and so we humbly urge the Honourable Court to hold.      

6.0           CONCLUSION

6.1           Based on our foregoing submissions on issues one (1), two (2) and three (3), we respectfully urge the Honourable Court hold that it lacks the jurisdiction to hear and determine the Claimant’s suit against the  2^nd Defendant.