GENERAL METAL PRODUCTS LTD v. BENIEO TECHNICAL TOOLS (NIG) LTD (2020)

GENERAL METAL PRODUCTS LTD v. BENIEO TECHNICAL TOOLS (NIG) LTD

(2020)LCN/14592(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, September 17, 2020

CA/L/242/2010

RATIO

PLEADINGS: THE AFFIDAVIT OF SERVICE CONSTITUTE PRIMA FACIE PROOF OF SERVICES.

It is clear from the above state of affairs that there was affidavit of service of the originating process and the motion for summary judgment on the appellant as well as the hearing notice which had 26.02.2008 fixed on it. These were attached to the counter affidavit of the respondent against the motion to set aside the judgment as Exhibits D, E, and F contained in pages 111 — 113 of the record. The affidavit of service of the said process constituted prima facie proof of the facts stated therein that the appellant was served with the originating process as well as the motion for summary judgment and the hearing notice as the best evidence of proof of service is an affidavit of service deposed to by the process server vide Mgbenwelu v. Olumba (2017) 5 NWLR (pt. 1558) 19, Onwubuya v. Ikegbunam (2019) 16 NWLR (pt. 1697) 94 at 12.The Registered Trustees Of The Presbyterian Church Of Nigeria v. John Asuquo Etim (2017) 13 NWLR (pt. 1581) 1 at 29-30 The appellant did not challenge the affidavit of service of the originating process as well as the motion for summary judgment and the hearing notice by way of further affidavit. It was held in the case of Mgbenwelu v. Olumba (supra) at pages 201 — 202, Ahmed v. Ahmed and Ors. (2013) 15 NWLR (pt. 1377) 274, Uko v. Ekpenyong (2006) 5 NWLR (pt. 972) 70 that where there is a challenge to the service of an originating process or any process, the affidavit of service deposed to by the Court bailiff, though not conclusive, is prima facie evidence of such service and raises a presumption which could only be rebutted by credible evidence to the contrary, and that a person challenging affidavit of service must depose to an affidavit denying service which must contain credible facts to rebut the deposition in the affidavit of service, as a bare denial would not suffice in the circumstances.
The appellant did not file further affidavit to contradict the affidavits of service deposed to by the process server, therefore there was no conflict in the affidavit evidence vis-a-vis the affidavits of service to warrant the Court below to call for oral evidence to resolve; moreso, the requirement to call for oral evidence in such situation only arises where the affidavits are in substantial or violent conflict, which was not shown to be the case here.
It is trite that a party such as the appellant alleging wrong service of process on it must appear in Court and protest the service in formal fashion by way of a preliminary objection vide Ugo and Ors. v. Ummuna and Ors. (2018) 2 NWLR (pt. 1602) 102 at 127 where the Supreme Court held per the lead judgment prepared by His Lordship, Kekere-Ekun, J.S.C., that —
“…the appellant was served with hearing notice on 29/11/04 to be in Court on the 2nd December, 2004. Therefore, whether or not they were served with any other process, they had an obligation to be in Court on that day either personally or through their legal practitioner…. “
His Lordship, Eko, J.S.C., held in the judgment in page 133 of the law report that —
“The law is; it does not lie in the discretion of a party in litigation to disobey or disregard any order or process of Court that he considers illegal or a nullity. He must take steps to have it set aside. See Rossek v. A.C.B. Ltd. (1993) 8 NWLR (pt. 312) 382.”
The Supreme Court also held in the case of Umeakuana v. Umuakuana (2019) 14 NWLR (pt. 1691) 61 at 31 following Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 387 that the law allows a defendant irregularly or wrongfully summoned either to enter an appearance in protest; or to enter conditional appearance, and then file a motion in the Court seised of the matter to set aside the service of the process complained of.
The appellant, therefore, had no legal basis to disregard the hearing notice and the other process served on it on the footing by it that the originating process was served on its confidential secretary. The hearing notice which was served on the appellant indicated in the affidavit of service (supra) that the matter was to be heard on 26.02.2008. A hearing notice is no more than a document from the Court notifying the parties of the date on which the action would be heard. Once a party is served hearing notice, the party so served is deemed to have actual knowledge of the date the action would be heard, and if such party decides to stay away from Court, the party in question would have done so at his own peril vide Darma v. Eco Bank Nigeria Limited (2017) 9 NWLR (pt. 1571) 480.
The Supreme Court cases of Ogunpehin v. Nucleus Venture (2019) 16 NWLR (pt. 1699) 533, Adeniyi and Anor. v. Tina George Industries Limited and Ors. (2019) 16 NWLR (pt. 1699) 560 also emphasise it that litigants should exhibit diligent in monitoring their cases and would have themselves to blame if they neglect to do so.
It was further held by the Supreme Court in the case of Fapohunda v. Roynolds Construction Company Nigeria Ltd. (2019) 3 NWLR (Pt. 1658) 163 that the Court and a party to an action do not owe the other party to the action the responsibility to get it to Court once it is served with the hearing notice indicating the date the action would be heard. And that once a party is served hearing notice, as in this case, it is the party’s duty to keep abreast of the progress or fortunes of the case by way of follow-up of the progress or movement of the case. See also Aina v. Obabiolorunkosi (1986) 2 NWLR (pt. 22) 316 at 29-330.
Accordingly, having been served hearing notice that the matter was to come up for hearing on 26.02 2008, the appellant if he had honoured the hearing notice would have been abreast of the case and would have been expected to know when the motion for summary judgment filed on 06.05.2008 vide pages 84 – 88 and served on the appellant on 07.05.2008 was heard on 13.05.2008 vide pages 199 — 200 of the record, showing the period between the service of the motion for summary judgment on the appellant and the date the said motion was heard was more than the two clear days for the fixing and hearing of a motion on notice.
I do not see denial of fair hearing as the appellant was put on notice of the hearing date as far back as 26.02.2008, while the motion for summary judgment filed on 06.05.2008 was taken on 13.05.2008, a timescope of 6 days within which the appellant could be heard on the motion when the hearing notice itself was served for the case on 26.02.2005 and the motion was taken on 13.05 2008. One, therefore, has to be careful to ensure that a party in litigation does not make up the issue of non-service of Court process to obtain technical victory in a matter which is otherwise bad for the party vide Obe v. Gom (2006) ALL FWLR (pt. 303) 285 at 304 following Chime v. Chime (199) 6 NWLR (pt. 404) 734. Per OSEPH SHAGBAOR IKYEGH, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

GENERAL METAL PRODUCTS LTD APPELANT(S)

And

BENIEO TECHNICAL TOOLS NIG. LTD RESPONDENT(S)

OSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):The appeal is from a decision of the High Court of Lagos State (the Court below) whereby it refused to set aside a default judgment given in favour of the respondent against the appellant under the summary judgment procedure in the sum of N11, 477, 293.01 (Eleven Million, Four Hundred and Seventy Thousand, Two Hundred and Ninety-Three Naira, One Kobo) being the total sum of money owed the respondent by the appellant resulting from loan facilities obtained from the respondent by the appellant both in cash and material supplied by the respondent to the appellant and accrued interest thereon as at 31.08.2007; interest on the aforementioned sum at the rate of 10% per month from 01.09.2007 until the whole debt is totally liquidated.

In outline, the respondent’s case was that after the sum of the indebtedness in question fell due without repayment upon demand it commenced action under the summary judgment procedure for the recovery of same at the Court below; that even though the appellant was served with the relevant processes including the hearing notice to respond to the action, it neglected to do so; having so

neglected, the respondent filed and moved a motion for judgment in default upon which the Court below entered judgment which the appellant unsuccessfully sought to set aside at the Court below, occasioning the present appeal.

On the other hand, the appellant’s case, in nutshell, was that it was not served the hearing notice and was not aware of the date fixed for the hearing of the case until it accidentally discovered in Kaduna through the steps taken by the respondent to enforce the judgment which prompted it to file a motion to set aside the judgment at the Court below; and, that it was upon the refusal of the Court below to set aside the jugdment that it filed the present appeal challenging the refusal of the Court below to set aside the said judgment .

The respondent filed a notice of preliminary objection underOrder 10 Rule (1) of the Court of Appeal Rules, 2011 (Rules of the Court) on 28.02.14 praying for the striking out of issues for determination (supra) contending that issues 1, 2, 3 and 4 thereof are incompetent principally because the said issues did not emanate from the decision of the Court below and that as for issue 5 (supra) same should be struck out for being incompetent on the ground that it was argued from a combination of grounds 3 and 4 of the 2nd amended notice of appeal.

The respondent

argued the notice of preliminary objection in its brief of argument filed on 02.12.13, but deemed as properly filed on 20.01.14, to the effect that the issue as framed and argued from a combination of grounds of appeal as well as issue 5 are wholly incompetent and should be struck out; and, that as the argument on issues 1, 2, 3 and 4 of the issues for determination (supra) do not emanate from the decision of the Court to permit the appellant to argue them in the brief would afford the appellant the opportunity to introduce missing evidence citing in support the case of Amaechi v. Obinna (2009) ALL FWLR (Pt. 492) 1163; upon which the respondent urged that the preliminary objection should be upheld and issues 1, 2, 3, 4 and 5 of the issues for determination be struck out.

The appellant reacted to the preliminary objection in its reply titled “REPLY TO PRELIMINARY OBJECTION,” filed on 26.02.2014, to the effect that, although the heading of issues 5 (supra) included arguments on grounds 3 and 4 of the 2nd amended notice of appeal, same should be treated as a typographical error as the body of issues 5 (supra) indicated it is confined to ground 5 of the 2nd amended notice of appeal filed on 23.01.2013, and has not been shown to have

misled the respondent, therefore the preliminary objection to it should be disregarded; more so, counsel had filed an application dated 23.02.2014, to correct the typographical error; and, that issues 1, 2, 3 and 4 cover grounds 1, 2, 3 and 4 of the amended notice of appeal, respectively, which arose from the ruling of the Court below contained in page 207 of the record; consequently, the appellant urged that the preliminary objection should be dismissed.

By its 2nd amended notice of appeal filed on 23.01.13, the appellant set out the five (5) grounds of appeal challenging the decision of the Court below and formulated five (5) issues for determination in its 2nd amended brief of argument filed on 26.02.14 thus-
“1. WHETHER THE TRIAL COURT WAS RIGHT TO HOLD THE APPELLANT RESPONSIBLE TO PROVE LACK OF SERVICE INSTEAD OF HOLDING THE RESPONDENT RESPONSIBLE TO PROVE SERVICE.
2. WHETHER THE TRIAL COURT WAS RIGHT TO HOLD THAT THE EXISTENCE OF EVIDENCE OF EXECUTION OF JUDGMENT ON THE APPELLANT ON 10/10/2008 AT KADUNA IS A PROOF OF SERVICE OF THE MOTION FOR DEFAULT JUDGMENT DATED 5/5/2008 ON THE APPELLANT AT HIS OFFICE AT LAGOS.
3. WHETHER PROOF OF SERVICE OF THE ORIGINATING SUMMONS ON

22/10/2007 SUFFICED AS PROOF OF SERVICE OF THE MOTION FOR DEFAULT JUDGMENT DATED 5/5/2008.
4. WHETHER THE COURT WAS RIGHT TO ASSUME JURISDICTION OVER THE MOTION FOR DEFAULT JUDGMENT ON 13/5/2008 AND ENTER JUDGMENT THEREBY.
5. WHETHER THE COURT WAS RIGHT WHEN IT REFUSED THE APPLICATION TO SET ASIDE ON THE GROUNDS THAT THE APPELLANT HAD ADMITTED THE CLAIM OF THE RESPONDENT, DID NOT APPLY WITHIN A REASONABLE TIME TO SET ASIDE THE JUDGMENT AND DID NOT SHOW GOOD DEFENSE TO THE CLAIM AND A JUST CAUSE FOR THE DELAY.”

Ground 5 of the amended notice of appeal reads —
GROUND FIVE.
…The Defendant have likewise failed to show good defense to the claim rather the transaction culminating in the indebtedness of the Defendant and in respect of which judgment was entered is admitted in paragraph 3(a) and (b) of the supporting affidavit herein. Furthermore, the evidence of the execution or at least the issuance of the writ of fifa supports the conclusion that the application to set aside has not been made within reasonable time. See Davies v. Guildpine Ltd (2004) 5 NWLR Pt. (865) 131 CA. in the final analysis I am convinced that the

Defendant/Applicant’s case is manifestly unsupportable and an order for re-hearing of the suit will be inequitable as well as embarrassing for the Respondent…”
PARTICULARS
a) The motion for default judgment was brought under Order 20 Rule 12 of the High Court of Lagos State Civil Procedure Rules which does not require show of good defense in any application to set it aside.
b) The requirement of Order 10 Rule 11 is not applicable. It was the Honourable Court that imported the provisions of this rule into the application to default judgment made under a different rule.
c) The complain of the Appellant was that both the originating processes and the motion dated 5/5/2008 were not served or properly served on her at Lagos.
d) The Honourable High Court awarded the Respondent a relief she did not apply for.
e) In matters affecting lack of service and lack of jurisdiction. Time does not run.”

Issue 5 of the issues for determination (supra) read vis-a-vis ground 5 of the amended notice of appeal makes it clear without ambiguity that issue 5 of the issues for determination (supra) is tied to ground 5 of the amended

notice of appeal (supra). Substantial justice demands that the body of a document filed in Court should be looked at as a whole to ascertain the substance of what it contains, not the form; and in this case, the body of ground 5 of the amended notice of appeal (supra) and issue 5 of the issues for determination (supra) considered holistically are in tandem or convey same thing showing in substance that only ground 5 of the notice of appeal (supra) is married to issue 5 (supra). There is thus no merit in the leg of preliminary objection that issue 5 of the issues for determination (supra) combined arguments on grounds 3 and 4 of the amended notice of appeal.

The Court below held in part of its ruling contained in page 207 of the record that —
“It would suffice to say that there is evidence of due service on defendant of the originating process as well as the Motion on Notice for judgment in default dated 5th May 2008. This is as evinced by exhibits D, E and F respectively being; the acknowledgment of service of the originating process by one Mrs. Funmi Fatoke, the confidential Secretary of the defendant on the 22nd October 2007 at 10pm. Exhibit E

is the affidavit of service of the Hearing Notice on the Defendant on the 18th of February 2008 by the Sheriff of Court — Adebiyi Rotimi, while Exhibit F is the affidavit of service of Motion on Notice etc. of 5th May 2008 (Motion for judgment) on the Defendant on the 7th May 2008 by Makinwa Bola, also a Sheriff of Court.
Beyond, the denial of service by the defendant and on the basis that its offices was sealed at the time service was supposedly effected, the defendant have taken no step to challenge the weighty documentary evidence exhibited to the counter affidavit herein. I daresay, these are prima facie evidence in proof of service and a deposition in denial of service against the same and without more in this instance will not suffice. For example, evidence of the sealing order and an explanation of the presence of the recipients of the processes might provide the benefit of doubt on the issue of service.
There is also the evidence of the commencement of execution process by the claimant in Kaduna State and pursuant to which a Motion on Notice of 13th October 2008 (Exhibit G) was filed at the Kaduna High Court praying; “for an order to force

open the premises ……for the purpose of levying High Court praying; “for an order to force open the premises for the purpose of levying execution on their movable properties pursuant to the writ of fifa issued by this Honourable Court”
In the absence of any deposition or evidence to the contrary, this Court is compelled to, accept the affidavit and documentary evidence of the claimant in this regard. The reason given in denial of service is not acceptable and even if it were, it will not be enough on the face of the weighty evidence provided of the defendant’s awareness of the proceedings herein. I find 110 just cause for the default of the defendant to attend the proceeding at the relevant stage. The defendant have likewise failed to show a good defence to the claim rather the transaction culminating in the indebtedness of the defendant and in respect of which judgment was entered is admitted in paragraph 3 (a) and (b) of the supporting affidavit herein. Furthermore, the evidence of execution or at least the issuance of the writ of fifa supports the conclusion that the application to set side has not been made within a reasonable time.

See: Davies v. Guildpine Ltd. (2004) 5 NWLR (Pt. 865) 131 CA.”

While grounds 1, 2, 3 and 4 of the amended notice of appeal read –
1. The trial Judge erred in law when she stated thus “beyond the denial of service by the Defendant on the basis that it’s offices were sealed at the time service was purportedly effected, the Defendant has taken no step to challenge the weighty documentary evidence exhibited to the counter affidavit herein. I daresay, these are prima facie evidence in proof of service and a deposition in denial of service against the same and without more in this instance will not suffice.
2. The trial Judge misdirected herself when she stated thus “there is also evidence of the commencement of execution process by the Claimant in Kaduna State and pursuant to which a Motion on Notice of 13th October 2008 (Exhibit G) was filed at the Kaduna High Court praying for an order to force open the premises…. or the purpose of levying execution on their movable properties pursuant to the writ of fifa issued by this Honourable Court. In the absence of any deposition or evidence to the contrary, this Court is compelled to accept affidavit and documentary

evidence of the Claimant in this regard.
3. The trial Judge erred in law when she held as follows:
” ……I have in the earlier part of the ruling given a resume of the proceedings and the processes filed culminating in the judgment of 13th May, 2008. Obviously, the Defendant failed and or neglected to react to the processes served on it and consequent upon the affidavit evidence in support of the Claimant’s application of 5th May, 2008, the Court being satisfied of the Defendant awareness/service of the originating processes and in particular the Motion on Notice in default of appearance and defense, entered judgment in favour of the Claimant herein on 13th of May, 2008.
4. The trial Judge erred in law when she proceeded to enter default judgment based on the motion dated 5/5/2008 against the Appellant relying on the wrong affidavit of service of the motion dated 3/9/2007 but attached to the motion dated 5/5/2008 without proof of the proper service of the motion dated 5/5/2008 itself. ”

The portion of the ruling (supra) taken against the backdrop of grounds 1, 2, 3 and 4 of the amended notice of appeal (supra) and the respective

issues tied to them (supra) establish on the face thereof that the grounds of appeal in question arose from the decision of the Court below. There is, therefore, no merit in the preliminary objection which is hereby dismissed.

The appellant argued on issue 1 (supra) that by the series of correspondence between it and the respondent contained in pages 14, 18, 24 and 27 of the record its office address was given at Lagos, Abuja, Kaduna and Port Harcourt which were operational at all material times, therefore it was incorrect as contended by the respondent that the appellant had shut down and/or closed its office at Lagos at the material time relating to service of the process on the appellant.

The appellant then argue that although the originating process — Writ of summons and ancillary papers were signed as having been served on it on 22.10.2007 vide page 75 of the record and said to have been confirmed by the affidavit of service vide page 74 of the record, the Court below failed to ascertain proof of service of the motion for default judgment dated 05.05.2008, purportedly served on 22.10.2007, before it heard the motion in question when it was

made clear to the Court below that the appellant did not react to the motion for default judgment vide page 199 of the record; consequently, it was argued that the said scenario ought to have aroused suspicion on the Court below which should have been enough for it not to have heard the motion for default judgment.

The appellant also argued that it had denied service of the originating process as well as the motion for default judgment in paragraphs (b) (c) and (d) of the affidavit in support of the motion contained in page 97 of the record, whilst the respondent joined issue with it in paragraphs 6 and 12 of the counter affidavits contained in pages 100-101 of the record, showing there was a conflict in the affidavit evidence, therefore it was submitted that the bailiff that purportedly effected service of the process on the appellant should have been summoned by the Court below to orally answer to the allegation of non-proof of service of the said process as there was doubt on service of the process vide the affidavit of service contained in page 91 of the record; more so, the series of correspondence between the appellant and the respondent before the

action was filed were dated pre April 2007, not post April 2017, which supported the appellant’s case that its Lagos Office was closed or shut in April, 2007, thus throwing some doubt on the service of the process on the appellant.

Consequently, the appellant argued that the burden of proof of service of the process was on the respondent, not on the appellant, as wrongly held by the Court below and did not require the appellant to call further evidence to challenge the counter affidavit on service of the process when the burden of proof of service of the process was on the respondent.

The appellant argued on issue 2 (supra) that its motion to set aside the default judgment had nothing to do with the execution of the judgment in Kaduna State, therefore the Court below should not have referred to events in Kaduna State in the determination of the said application; that as there was non service of the motion which had no hearing date on it on the appellant, the Court below lacked the jurisdiction to have entertained the motion; and that the motion was to have been served separately and should not have been merged with the originating process for service on

the appellant, therefore the Court below should not have assumed jurisdiction over the motion citing in support the case of Ntekim v. Oron Local Government (2010) 16 NWLR (pt. 1219) 209 at 232.

The appellant argued that by the sequence of events, the judgment sought to be set aside preceded the attempt to enforce it in Kaduna showing the Court below was wrong to hold that the appellant was aware of the pending action in which judgment was entered and had been sought to be set aside on account of the events that occurred in Kaduna.

The appellant argued on issue 3 (supra) that the respondent “fraudulently deceived” the Court below by the motion dated 05.05.2008 and the affidavit of service attached to the motion and by its response to the “weak inquiry” made by the Court below and the application for an adjournment to regularise the process for summary judgment to cure the contradiction in the amount claimed on the writ and stated in the affidavit vide the proceedings contained in pages 199 — 200 of the record; yet without the regularisation the respondent still moved the motion for summary judgment which the Court below by looking at its previous

record should have struck out as there was no motion to regularise the contradiction citing in support thereof Section 74(m) of the Evidence Act.

Consequently, it was argued that the pending defective motion which was for mention was still on the cause list at the time the respondent filed the motion on 06.05.2008, which was not mature for hearing as the pending motion filed on 03.09.2007, therefore it was the further contention of the appellant that the motion for summary judgment filed on 06.05.2008, had not matured at the time it was heard by the Court below vide Order 39 rule 1 of the rules of the Court below; and that the only hearing notice purportedly served in the case was that served on 18.02.2008, for business on 26.02.2008 vide page 78 of the record and Exhibit A when there were five (5) adjournments in the case vide pages 199 — 200 of the record showing the Court below was wrong to hold in page 207 of the record that five (5) hearing notices were issued and served on the appellant; and that based on the above the Court below should have invoked Order 20 Rule 12 of the rules of the Court below to set aside the said judgment.

The appellant

argued on issue 4 (supra) that having disputed the stamp on the service of the originating process that the stamp does not belong to the appellant and; also, having denied that a Mrs. Funmi Fatoki that signed receipt of the originating process was its staff, more so service should have been done on either a director, secretary, trustee, or other senior or principal officer of the appellant not a confidential secretary, service of the process should not have been held to have been properly done and/or established by the respondent upon which the Court below should have granted the application to set aside the judgment vide Order 7 Rule 9 and Order 39 Rule 1(3) of the rules of the Court below.

The appellant argued on issue 5 (supra) that having brought the application under Order 20 Rule 12 of the rules of the Court below, it was not required to show good cause or bring the application within a reasonable time but only to show lack of service of the process and/or hearing notice to establish fraud and want of jurisdiction and a prima facie defence to the action which the appellant had established, therefore the Court below should not have held that the motion was not brought within a reasonable time when such consideration is only for a

motion brought under Order 10 Rule 11 of the Court below and when time does not run in jurisdictional matter.

It was further argued that the appellant acted timeously by filling the application on 14.10.2008, when it became aware of the judgment on 10.10.2008; upon which the appellant urged that the appeal should be allowed and the judgment of the Court below be set aside for lack of service of the process that led to entry of the judgment on the appellant, devoid of sentiment, as the issue of indebtedness did not arise in the case at that present point in time vide Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 427 at 489.

The respondent contended in its brief that the judgment was obtained under Order 10 Rule 3, not under Order 20 Rule 1, of the rules of the Court below, so the conditions for granting an application for the setting aside of the judgment would be in accordance with the requirements set out in the cases ofWilliams and Ors. v Hope Rising Voluntary Funds Society (1982) 1 -2 SC 34 at 40, SEEPC (Nig.) Ltd. V. PBN Ltd. (1992) 7 NWLR (pt. 252) 231 at 239 – 240, Remawa v. NACB Consultancy & Finance Co. Ltd. (2007) ALL FWLR (pt. 349) 1111

which the appellant failed to establish as paragraphs 6 — 14 and Exhibits B, C, D, E and F showed that by 20th July, 2007, the appellant’s office in Lagos had not been shut down or closed and that the appellant was duly served with hearing notice.

The respondent contended that the appellant did not attach the sealing order by the Board of Internal Revenue (BIR) to its application to establish that its premises in Lagos were sealed by the BIR, nor did the appellant furnish any other evidence to that effect, showing the appellant had not placed the necessary materials before the Court below to warrant the success of the application which, according to the submission of the respondent, was rightly dismissed upon proper exercise of discretion by the Court below vide Remawa v. NACB Consultancy & Finance C. Ltd. (supra); upon which the respondent urged that the appeal should be dismissed with substantial costs for lacking in merit.

The appellant filed its reply brief on 26.02.14, in which it was re-emphasised that Order 20 of the Rules of the Court below governed the application brought by the appellant at the Court below per the judgment and the

motion on notice dated 05.05.2008 vide pages 92 — 93 of the record which was purportedly served on the appellant on 07.05.2008 per affidavit of service contained in page 113 of the record and was moved on 13.05.2008, and granted on the same day without the Court below inquiring whether the motion on notice was ripe for hearing, therefore it was contended that the appellant was denied fair hearing citing in support the case of F.B.N. Plc. v. T.S.A. Ind. Ltd. (2010) 15 NWLR (pt. 1216) 309 and Order 39 Rule 1(3) and 5 of the Rules of the Court below.

The appellant also argued in the reply brief that having heard the motion for default judgment which it granted without observing if proper service was made or not, the proper thing the Court below should have done was to set aside of the judgment as the refusal to set it aside amounted to wrongful exercise of discretion by the Court below and for being a nullity and a denial of the right to fair hearing citing in support thereof the cases of F.B.N. Plc. v. T.S.A. Ind. Ltd (supra) at 302 and U.B.N. Plc. v. Astra Building (W.A.) Ltd. (2010) 5 WLR (pt. 1186) 29 and 34; upon which the appellant urged that the

appeal should be allowed.

Pages 96 — 98 of the record contain the motion on notice and the affidavit in support of the prayers for the setting aside of the judgment. Page 96 thereof stated that the motion was brought under Order 10 Rule 11 and Order 20 Rule 12 of the High Court of Lagos State (Civil Procedure) Rules, 2004 and the inherent powers of the Court below. The written address in support of the application contained in page 99 of the record also stated that the motion was made pursuant to Order 10 Rule 11 and Order 20 Rule 12 of the Rules of the Court below. Likewise, the ruling of the Court refusing to set aside the default summary judgment contained in pages 204 — 207 of the record.

The double-barrel procedure of combining Order 10 Rule 11 and Order 20 Rule 12 of the Rules of the Court below therefore obliged the appellant to satisfy the requirement of Order 10 Rule 11 and Order 20 Rule 12 of the Rules of the Court below.

Pages 74 — 77 of the record indicate that the appellant was served the originating process on 22.10.07 through its confidential secretary. Page 74 thereof, in particular, contains the affidavit

of service of the process server or sheriff, one Olajumoke Balogun, to that effect. Pages 78 and 79 of the record contain the hearing notice and the affidavit of service of the hearing notice of the action fixed for hearing on 26.02.2008. The affidavit of service contained in page 79 of the record indicated that the appellant refused to sign but collected the hearing notice. The process server or sheriff that effected the service of the hearing notice gave his name as Adebiyi Rotimi. Pages 80 — 81 of the record also indicated that the originating process was served on the appellant by the same process server.

While pages 91 — 94 of the record contain the affidavit of service of the motion for summary judgment stating that the appellant was served with Exhibits, motion on notice affidavit in support and written address on 07.05.2008, by the process server or sheriff, one Makinwa Bob, at plot 9, Block A Apapa/Oshodi Expressway.

fixed on it. These were attached to the counter affidavit of the respondent against the motion to set aside the judgment as Exhibits D, E, and F contained in pages 111 — 113 of the record.

The affidavit of service of the said process constituted prima facie proof of the facts stated therein that the appellant was served with the originating process as well as the motion for summary judgment and the hearing notice as the best evidence of proof of service is an affidavit of service deposed to by the process server vide Mgbenwelu v. Olumba (2017) 5 NWLR (pt. 1558) 19, Onwubuya v. Ikegbunam (2019) 16 NWLR (pt. 1697) 94 at 12.The Registered Trustees Of The Presbyterian Church Of Nigeria v. John Asuquo Etim (2017) 13 NWLR (pt. 1581) 1 at 29-30 .

The appellant did not challenge the affidavit of service of the originating process as well as the motion for summary judgment and the hearing notice by way of further affidavit. It was held in the case of Mgbenwelu v. Olumba (supra) at pages 201 — 202, Ahmed v. Ahmed and Ors. (2013) 15 NWLR (pt. 1377) 274, Uko v. Ekpenyong (2006) 5 NWLR (pt. 972) 70 that where there is a challenge to the service of an

originating process or any process, the affidavit of service deposed to by the Court bailiff, though not conclusive, is prima facie evidence of such service and raises a presumption which could only be rebutted by credible evidence to the contrary, and that a person challenging affidavit of service must depose to an affidavit denying service which must contain credible facts to rebut the deposition in the affidavit of service, as a bare denial would not suffice in the circumstances.
The appellant did not file further affidavit to contradict the affidavits of service deposed to by the process server, therefore there was no conflict in the affidavit evidence vis-a-vis the affidavits of service to warrant the Court below to call for oral evidence to resolve; moreso, the requirement to call for oral evidence in such situation only arises where the affidavits are in substantial or violent conflict, which was not shown to be the case here.

The Court below was, accordingly, right to hold in part of its ruling contained in page 207 of the record that the bare denial of service on the appellant of the said process by the appellant did not rebut the prima facie

evidence of service of the process in question evidenced by the affidavits of service in the file of the Court below which it rightly referred to as well as Exhibits D, E and F to that effect. Proof of service of the relevant process on the appellant was therefore established which entitled the Court below to hear and determine the motion for summary judgment.

The appellant complained that the originating process was wrongly served on its confidential secretary. It is trite that a party such as the appellant alleging wrong service of process on it must appear in Court and protest the service in formal fashion by way of a preliminary objection vide Ugo and Ors. v. Ummuna and Ors. (2018) 2 NWLR (pt. 1602) 102 at 127 where the Supreme Court held per the lead judgment prepared by His Lordship, Kekere-Ekun, J.S.C., that —
“…the appellant was served with hearing notice on 29/11/04 to be in Court on the 2nd December, 2004. Therefore, whether or not they were served with any other process, they had an obligation to be in Court on that day either personally or through their legal practitioner…. ”
His Lordship, Eko, J.S.C., held in the

judgment in page 133 of the law report that —
“The law is; it does not lie in the discretion of a party in litigation to disobey or disregard any order or process of Court that he considers illegal or a nullity. He must take steps to have it set aside. See Rossek v. A.C.B. Ltd. (1993) 8 NWLR (pt. 312) 382.”
The Supreme Court also held in the case of Umeakuana v. Umuakuana (2019) 14 NWLR (pt. 1691) 61 at 31 following Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 387 that the law allows a defendant irregularly or wrongfully summoned either to enter an appearance in protest; or to enter conditional appearance, and then file a motion in the Court seised of the matter to set aside the service of the process complained of.
The appellant, therefore, had no legal basis to disregard the hearing notice and the other process served on it on the footing by it that the originating process was served on its confidential secretary.

The hearing notice which was served on the appellant indicated in the affidavit of service (supra) that the matter was to be heard on 26.02.2008. A hearing notice is no more than a document from the Court notifying the

parties of the date on which the action would be heard. Once a party is served hearing notice, the party so served is deemed to have actual knowledge of the date the action would be heard, and if such party decides to stay away from Court, the party in question would have done so at his own peril vide Darma v. Eco Bank Nigeria Limited (2017) 9 NWLR (pt. 1571) 480.
The Supreme Court cases of Ogunpehin v. Nucleus Venture (2019) 16 NWLR (pt. 1699) 533, Adeniyi and Anor. v. Tina George Industries Limited and Ors. (2019) 16 NWLR (pt. 1699) 560 also emphasise it that litigants should exhibit diligent in monitoring their cases and would have themselves to blame if they neglect to do so.
It was further held by the Supreme Court in the case of Fapohunda v. Roynolds Construction Company Nigeria Ltd. (2019) 3 NWLR (Pt. 1658) 163 that the Court and a party to an action do not owe the other party to the action the responsibility to get it to Court once it is served with the hearing notice indicating the date the action would be heard. And that once a party is served hearing notice, as in this case, it is the party’s duty to keep abreast of the progress or

fortunes of the case by way of follow-up of the progress or movement of the case. See also Aina v. Obabiolorunkosi (1986) 2 NWLR (pt. 22) 316 at 29-330.
Accordingly, having been served hearing notice that the matter was to come up for hearing on 26.02 2008, the appellant if he had honoured the hearing notice would have been abreast of the case and would have been expected to know when the motion for summary judgment filed on 06.05.2008 vide pages 84 – 88 and served on the appellant on 07.05.2008 was heard on 13.05.2008 vide pages 199 — 200 of the record, showing the period between the service of the motion for summary judgment on the appellant and the date the said motion was heard was more than the two clear days for the fixing and hearing of a motion on notice.
I do not see denial of fair hearing as the appellant was put on notice of the hearing date as far back as 26.02.2008, while the motion for summary judgment filed on 06.05.2008 was taken on 13.05.2008, a timescope of 6 days within which the appellant could be heard on the motion when the hearing notice itself was served for the

case on 26.02.2005 and the motion was taken on 13.05 2008. One, therefore, has to be careful to ensure that a party in litigation does not make up the issue of non-service of Court process to obtain technical victory in a matter which is otherwise bad for the party vide Obe v. Gom (2006) ALL FWLR (pt. 303) 285 at 304 following Chime v. Chime (199) 6 NWLR (pt. 404) 734.

The appellant complained that there was an irregularity or contradiction in the amount claimed in the summary judgment action which the respondent had sought for and obtained an adjournment to rectify but failed to do so, therefore summary judgment should not have been given in the action. The present appeaI is not questioning the substantive action but it questions the procedure for the entry of the summary judgment in default. The said complaint does not therefore fall within the compass of the present appeal. It can only be agitated in an appeal on the substantive action. I would disregard it in consequence.

The appellant stated that it has a prima-facie defence to the action, so the default judgment should be set aside. The affidavit in support of the motion to set aside the

judgment deposed in paragraph 3(f) thereof contained in page 97 of the record that the appellant was seriously contesting the amount of indebtedness claimed by the respondent and was ready to defend the action without more. The counter affidavit of the respondent attached the reconciliation of accounts, Exhibit A, where the appellant signed acknowledgment of the indebtedness vide pages 104 — 106 of the record.

The appellant did not file a further affidavit debunking Exhibit A attached to the counter affidavit of the respondent (supra). With the admission/concession made by the appellant in Exhibit A, it is hard to appreciate the stance that the appellant has a viable defence to the action to entitle it to the discretionary remedy of setting aside the judgment vide the cases of Ifeanyichukwu Trading Investment Ventures Ltd. and Anor. v. Onyesom Community Bank Ltd. (2015) 17 NWLR (pt. 1487) 1, Kenfrank (Nig.) Ltd. V. UBN Plc. (2002) 8 NWLR (pt. 789) 46, U.P.N. v. Poatson Graphics Arts Trade Ltd. (1982) C.A. 273. The Court below was, accordingly, right to hold that the appellant failed to show an arguable defence to the action.

I agree with the

Court below that the appellant’s conduct was dilatory from the date it was served the process in the case to the date judgment was entered in the case such its application did not deserve and/or was worthy of a sympathetic consideration vide Williams v. Hope Rising Voluntary Funds Association 1 – 2 SC 34 at 40 and Mornoh v. Gulf Assurance Corporation (1975) N.N.L.R. 94 at 96.

In conclusion, I find no substance in the appeal and hereby dismiss it and affirm the decision of the Court below (Opesanwo, J.) with N500,000 costs in favour of the respondent against the appellant.

OBANDE FESTUS OGBUINYA, J.C.A.: I enjoyed the singular privilege to peruse, in draft, the attractive leading judgment delivered by my learned brother, Joseph Shagbaor Ikyegh, JCA. I concur, in toto, with the articulate reasoning and conclusion in it.

Indisputably, service of Court process or hearing notice, where required, is a sine qua non in any adjudication in that it infuses into a Court the jurisdiction to entertain a matter. There were/are indefeasible documentary evidence, affidavits of service, sworn to by the bailiffs of the lower Court, signifying service of the necessary Court processes on the appellant. Curiously, the appellant, in its infinite wisdom,

starved the Court of a rebuttable evidence which demonstrate that it was not served. The law grants the Courts, both trial and appellate, the unbridled licence to rely/act on unrebutted affidavit of service furnished by a bailiff. In effect, the appellant cannot reap from beneficent vineyard of want of fair hearing on the footing of lack of service. The lower Court’s decision is unassailable.

Given this reason, coupled with the detailed and anatomized reasons displayed in the exquisite leading judgment, I, too, dismiss the appeal in the terms decreed in it.

BALKISU BELLO ALIYU, J.C.A.: I read in draft the lead judgment of my learned brother JOSEPH SHAGBAOR IKYEGH, JCA. I agree with him that the preliminary Objection lacks merit and I also dismiss it.

With regards to the main appeal, I agree with the reasoning and conclusion reached therein that the appeal lacks merit and I adopt same as mine in also dismissing the appeal.

I abide by the order of cost made therein. Appeal is dismissed by me.

Appearances:

Mr. P. Mbata (holding the brief of Mr. A. Iroagalachi) For Appellant(s)

Mr. Z. L. Dashe (holding the brief of Mr. M.A. Odeh) For Respondent(s)