AMOS MOTORS NIGERIA LIMITED & ANOR V. MR. IDOWU AGBOOLA
(2014)LCN/7192(CA)
In The Court of Appeal of Nigeria
On Monday, the 14th day of May, 2012
CA/IL/13/2010
RATIO
WHETHER THE SERVICE OF ORIGINATING PROCESS ON THE ADVERSE PARTY IS A CONDITION PRECEDENT FOR THE EXCERSISE OF A COURT’S JURISDICTION
It is indubitable as the law is settled on the authorities cited and other authorities too numerous tomention that service of originating processes on the adverse party is a threshold issue and conditionprecedent for the exercise of a Court’s jurisdiction. In the case of Okoye v. Centre Point Merchant BankLtd. (2008) ALL FWLR (Pt 441) 810 at 824-825 paras, G-A and 832 – 834 paras D-B; which was rightly citedby the learned counsel for the Appellants; Tobi, JSC; emphasized the fundamental nature of service oforiginating processes and the effect of non-compliance with the provisions of the Rules of Court in thatrespect, when he intoned:-
“Non service of writ of summons is not a mere defect in procedure. It is not also one of want of form butrather an incurable irregularity that is intrinsic to the jurisdiction of the Court. It is beyond doingtechnical justice. It goes to the doing of substantial justice, Substantial justice is not only for the party indefault of the rules of Court. It is also for the adverse party who is the victim of the non-compliance withthe rules. Rules of Court are meant to be obeyed.” Per IGNATIUS IGWE AGUBE, J.C.A.
EFFECT OF THE FAILURE TO DELIVER NOTICE TO DEFEND AS AT WHEN DUE
Although case law has now in the interest of justice ameliorated the harshness of the effect of failure todeliver Notice of Intention to defend as at when due by making allowance for such a defaultingDefendant to be granted extension of time particularly where he took the slightest step to so do albeitbelatedly; even by oral application, the normal practice, is for the Defendants to file a motion on noticepraying for extension time within which to deliver the notice of intention to defend which motion isusually supported by an affidavit explaining the reasons for the delay in filing the necessary processes.
The court would normally grant such application if satisfied that there is some element of seriousness onthe part of the defendant and that the affidavit discloses a prima facie, arguable or reasonable defenceto allow him defend the suit. In this particular case, no such application either orally or by way of motionon notice was made. See N.S.C.C. v. Celtic Commerce & Ind. Ltd. (2002) FWLR (Pt.126) 944 andObadiegwu v. Lion Bank Nigeria Plc. (2003) FWLR (Pt.165) 140. Per IGNATIUS IGWE AGUBE, J.C.A.
WHETHER THE SERVICE OF PROCESS IS FUNDAMENTAL TO THE COURT BEING VESTED WITH JURISDICTION
It is true that service of process is fundamental to the court being vested with jurisdiction to entertainany suit. See the case of Mark vs. Eke (2004) 5 NWLR (Pt.865), held 4, where the Supreme Court said:
“….it is the service of the process of court on the Defendant that confers on the court the competenceand jurisdiction to adjudicate on a matter, the service of process then becomes a condition precedent tothe hearing of the Suit…” See also, Okoye vs Central Point Merchant Bank Ltd (2008) All AFLR (Pt.441)810 at 824-825; ADC Ltd vs NDIC (Nig.) Universal Bank Ltd (2006) All FWLR (Pt.335), at 51.
But a party who plays prangs, to evade service or to avoid being served by the conventional way, cannotplead non-service of the process, if he is caught in the web, designed by the court to trap evasivedefendants’ that is by substituted means, which by law is satisfactory that is, by substituted means,which by law is satisfactory service of court process. Per ITA G. MBABA, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. AMOS MOTORS NIG. LTD.
2. ALHAJI MUSA OLAIYA Appellant(s)
AND
MR. IDOWU AGBOOLA Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): The Respondent (then Plaintiff) in the High Court of Justice Kwara State, in the Ilorin Judicial Division Holden at Ilorin, by way of Ex-parte Motion brought pursuant to Order 23 Rule 1 of the Kwara State High Court (Civil Procedure) Rules, 1989, in suit Number KWS/2/2005, applied for leave of the Honourable Court to enter the action under the Undefended List and to mark the writ of Summons and the Affidavit in support thereof as “UNDEFENDED-LIST” and for such further Order(s) as the Court might deem fit to make in the circumstances of the case. That Application was filed on the 10th day of January, 2005.
In the five-paragraph affidavit deposed to by Idowu Agboola, male, Christian, Company Worker, Nigerian of No. 31, Western Avenue, Surulere Lagos, who incidentally was the Plaintiff/Applicant he had sworn to the following facts:-
1. That he was conversant with the facts of the case by virtue of being the Plaintiff/Applicant.
2. That his solicitors Messrs Temidayo Eseyin & Co. informed him and he verily believed that he needed the leave of the Honourable Court to bring the action under the “Undefended List”.
3. That his claims were as stated in the Writ of Summons and the grounds upon which the reliefs were predicated were as stated in the affidavit in support of the Writ of Summons also annexed to the Motion Ex-parte.
4. That the Writ of Summons and the Supporting Affidavits were marked Exhibits “A1” and “A2”: respectively.
By the endorsement on the Writ of Summons which was also filed on the 10th day of January, 2005;
“The Plaintiff’s Claim is for:-
1. The sum of Five Hundred Thousand Naira (N500,000.00) being the money collected from the Plaintiff by Defendants for the supply of a Nissan Hiace Bus to the Plaintiff by the Defendants but which the Defendants refused to supply despite repeated demands.
2. 10% interest per annum from judgment until final liquidation.”
In the Affidavit in support of the Writ of Summons, the Plaintiff/Applicant averred to the following facts:-
“1. That I am the Plaintiff in this case.
2. That the first Defendant was introduced to us as being a Limited Liability Company carrying on the Sales and supplies of Motor Vehicles.
3. That the second Defendant is the alter ego and Managing Director of the first Defendant.
“4. That on the 16th of December, 2003, the Plaintiff approached the defendants for the sales and supplies of a Toyota Hiace Bus.
“5. That after negotiations, the Defendants agreed to sell and supply to the Plaintiff the said Toyota Hiace Bus at Five Hundred Thousand Naira, (500,000.00).
“6. That the second Defendant then told the Plaintiff and his friend that he would need to travel to either Benin Republic of Togo to bring the vehicle.
7. That the Defendants also promised to deliver to the Plaintiff the said Vehicle after two (2) weeks from 16/02/2004 whereupon the plaintiff made a deposit of Four Hundred and Forty Thousand Naira (N440,000.00) and the Plaintiff was issued the defendant receipt dated 16/12/03. The said Receipt is herewith attached and marked Exhibit “AA”.
“8. That the Defendants failed to supply to the Plaintiff the said Toyota Hiace Bus after the agreed two (2) weeks and till now.
“9. That after a lot of pressure and over eight months after, the 2nd Defendant demanded that the Plaintiff should pay the-balance of Sixty Thousand Naira (N60,000.00) to enable him supply the said Vehicle and the plaintiff obliged him. The 1st Defendant’s receipt for the sum of (N60,000,00) dated 18th July, 2004 is herewith attached and marked Exhibit “AB”.
“10. That even after the payment of the said sum of N60,000,00 as balance, the Defendants still refused to, failed and/or neglected to supply to the plaintiff the said Toyota Hiace Bus.
“11. That the Defendants made several promises to supply the vehicle and failed.
“12. That I have also demanded several times for the refund of my money being the sum of N500,000,00 after the Defendants failed to supply the vehicle to me but the Defendants have not been able to make the refund.
“13. That I know as a fact that the Defendants cannot supply the Toyota Hiace Bus to me as the transaction has taken several months.
“14. That the Defendants to the best of my knowledge and belief have no defence to this action.
“15. That I make this Oath bonafide believing the contents to be true in accordance with the Oath Act.”
It would be recalled that the learned trial Judge on the 17th February, 2005 granted the Order Exparte for leave to the Plaintiff/Applicant to enter the suit under the “Undefended List” and to mark the writ of summons as such accordingly. The case was then adjourned to the 4th day of March, 2005 for hearing.
By an Ex-parte Motion dated the 3rd day of March, 2005 and filed on the 11th day of April, 2005, the Plaintiff/Applicant (now Respondent in this Appeal), further sought leave of the trial court to serve the Defendant by substituted means by pasting the Writ of Summons, Affidavit in support thereof and the Ruling of the Court made on the 17th February, 2005, placing the suit under the “Undefended List” and all other processes in the suit on the last known place of business abode of the Defendants at No. 334 Opposite Ilorin City Hall, Geri Alimi, Lagos Road, Ilorin, Kwara State; and for such further Order(s) as the Court might deem fit to make in the circumstances of the case.
In support of the Application, the Plaintiff/Applicant (then) deposed to an Affidavit of ten paragraphs to which was annexed an Affidavit of service deposed to by Mallam Abdul-Rahman Ajadi (Chief Bailiff) of the High Court of Justice, Ilorin and dated the 28th day of February, 2005; to the effect that on the 22nd, 23rd, 24th and 25th February, 2005, at about 9.15a.m; service could not be effected on the Defendants because the Defendants were not seen for service. Therefore the processes (Court Order, Affidavit in support and Exhibits) were returned unserved.
From what can be found at page 16 of the Records, it would appear that the Plaintif/Applicant (now Respondent) applied for and obtained a writ of Attachment/Judgment Forms 4, 5, 6 and 27 dated the 3rd day of January, 2007 against the Defendants (now Appellants) in the sum of N587,150.00 (Five Hundred and Eighty Seven Thousand, One Hundred and Fifty Naira) only, as well as Judgment Form 41 (Notice of Attachment) dated 14th day of August, 2008 which was accordingly issued for the attachment of the Defendants’ moveable property in satisfaction of the Judgment debt of N587,150,00.
Pursuant to orders 10 Rules 5 and 17 Rule 11 of the Kwara State High Court (Civil Procedure) Rules 2005, the Defendants as Judgment-Debtor/Applicants, subsequently filed a motion praying for:-
“1. Extension of time within which the Judgment-Debtor/Applicant could apply to the Honourable Court to set aside its Judgment delivered on the 28th day of April, 2005 up till the date and time of moving the motion.
2. Setting aside the Judgment of the Court delivered on the 28th day of April, 2005.
“3. Staying further execution of the Judgment of the Honourable court delivered on the 28th of April, 2005 and
“4. Directing the 2nd Respondent who was the Sheriff of the High Court of Justice, Ilorin to release from attachment and handover same to the Judgment-Debtor/Applicant Mazda 626 Tokunbor car which was attached from the premises of the Judgment-Debtor/Applicant on the 4th of August, 2008 and which car was in the custody of the 2nd Respondent.
“5. And for such further Order(s) as the Honourable Court might deem fit to make in the circumstances.”
“The Grounds for the Application were given as follows:-
A. From the contents of the Writ of Attachment and Sale of Goods served on the Judgment-Debtor/Applicant, Judgment was delivered against the Judgment-Debtor/Applicant on 28/4/2005 to the tune of N587,150.00 (Five Hundred and Eighty Seven Thousand, One Hundred Fifty Naira) only.
B. The Judgment-Debtor/Applicant was not served with any Court processes in this case throughout the time the proceedings was going on in this case.
C. In view of the foregoing, it is in the overall interest of Justice to set aside the Judgment of the Honourable Court delivered on 28/4/2005 and release the Mazda 626 which was attached pursuant to the suit, to the Judgment-Debtor/Applicant.
In the thirteen paragraphed Affidavit in support of the Application the Managing Director and Chief Executive of Amsos Motors Alhaji Musa Sanusi Olaiya deposed to the following facts for himself and on behalf of 1st Defendant Judgment-Debtor/Applicant.
“4. That I know the fact that on 14/8/2003, at about 2:30 p.m I was in my shop at Lagos Road, Ilorin when all of a sudden I saw two policemen and a Bailiff from the Registry of this Honourable Court.
“5. That when the said two policemen and the Bailiff came, they showed me a list of attachment and sale of good Judgment forms 4, 5, 6 and 27 copies of same is attached and marked Exhibit ‘A’.
“6. That upon a careful look at the said form, I found that the Honourable Court gave judgment against the Judgment-Debtor/Applicant in this case on 28/4/2005 to the tune of N587,150.00 (Five Hundred and Eighty Seven Thousand, One Hundred and Fifty Naira) only.
“7. That I made efforts to convince the said policemen and the Court Bailiff that the Judgment-Debtor/Applicant was not served with the Court processes when the case was going on but they did not listen to me.
‘8. That consequent upon the foregoing, the two policemen and the Court bailiff attached a Mazda 626 car belonging to the Judgment-Debtor/Applicant herein and drove same away to the premises of this Honourable Court.
“9. The said Mazda 626 is presently in custody of the 2nd Respondent.
“10. That by virtue of my position as the Chief Executive of the Judgment- Debtor/Applicant I know as a fact that the Judgment-Creditor/ Respondent must have obtained the Judgment by fraudulent means because throughout the time proceedings was going on in this case the Judgment-Debtor/Applicant was not served with any Court processes in this case.
“11. That I know as a fact that the said Judgment constitutes a travesty of Justice against the Judgment-Debtor/Applicant and same is liable to be set aside.
“12. That given the above situations and circumstances, it is in the overall interest of Justice to grant this application and release the said Mazda 626 from attachment which vehicle is presently in the custody of the 2nd Respondent.
“13. That I depose to this supporting affidavit in good faith believing all the contents of the same to be true, correct and in accordance with the relevant existing Oath Laws.”
It has to be recalled that the learned Counsel to the Judgment-Debtors/Applicants’ also backed up the Application with a Written Address. The Judgment-Creditor on the other hand, filed a Counter-Affidavit of twenty-one paragraphs in opposition to the Motion on Notice and the salient/relevant facts from the commencement of proceedings up to the making of the order of substituted service as granted by the Court below, can be found in paragraphs 8 – 20 thereof which is sum reproduced hereunder inter alia:-
“8. That this Honourable Court thereafter granted the Motion and same was pasted on the last place of business/abode of the Defendant at No. 334, Opposite Ilorin City Hall, Geri Alimi, Lagos Road, Ilorin, Kwara State.
“9. That the proof of substituted service is in the records of this Court.
“10. That Judgment Debtor/Applicant was served with the Court processes since service by substituted means is deemed to be good and effective service.
“11. The Judgment-Debtor/Applicant was aware of the pending of the case or Judgment given therein.
“12. An affidavit of service was deposed to by the Bailiff after the Order of substituted service was complied with and thereupon the Honourable Court gave Judgment in favour of the Claimant on 28/4/05.
“13. After the Order of substituted service the second Defendant Judgment-Debtor/Applicant made contacts with the Judgment-Creditor/Claimant asking for time within which to supply the vehicle the claimant paid for.
“14. The Claimant exercised patience due to several pleas and messages of sympathy and call for mercy sent by the second Defendant to the claimant and later to the Claimant’s counsel through Barrister Femi Makinde who was the second Defendant’s Counsel for a long time.
“15. Later Barrister Femi Makinde also fell victim of the 2nd Defendant and the said Barrister had to initiate a direct complaint against the 2nd Defendant at the Upper Area Court I, Ilorin before he could recover the money he deposited for a vehicle with the 2nd Defendant but which the 2nd Defendant refused/failed to supply.
“16. It is very confusing when after the Judgment in the case was executed the Affidavit of service deposed to by the Bailiff of the Honourable Court was missing from the Records of the Court.
“17. He knows as a fact that the procedure adopted by the Defendant/Applicant’s Counsel to have the Judgment and its execution set aside is incompetent.
“18. It was also a fact that the Judgment Creditor did not obtain the said Judgment by fraudulent means as the Judgment-Debtor/Applicant was aware of the pending of the matter.
“19. The said Judgment did not constitute a travesty of justice against the Judgment-Debtor/Applicant and same is not liable to be set aside.
“20. It is in the interest of Justice to discountenance the Judgment-Debtor/Applicant’s Application in its entirety.”
The Counter-Affidavit was also supported by a written Address filed by Inyang-Ito I-B (Miss) Respondent’s Counsel for Temidayo Eseyin & Co, and a Motion for extension of time with which to file the Counter-Affidavit, the time limited by the Rules having elapse. In support of the Application, the learned counsel -for the Judgment creditor/Respondent further filed a ten paragraph Affidavit and a Written Address. See pages 1-35 of the Record of proceedings.
It is worthy to note that at page 39 of the Records where the Court proceedings were recorded to have commenced on the 17th of February, 2005, parties were absent and Mrs. J, M. Akwahear who appeared for the Plaintiff/Applicant in the Ex-parte Application to place the suit under the “Undefended List” moved same which was granted and ordered as prayed. The case was subsequently adjourned to 04/03/2005 for Hearing. The Court did not sit on the adjourned date and it was not until the 10th day of March, 2005 that hearing resumed. On that day parties were equally absent but Mrs. Akwahear appeared for the Plaintiff and intimated the Court that they had not been able to effect service on the Defendant. He further informed the Honourable Court that they needed to come by way of Motion for substituted service. The case was then adjourned to 17th of March, 2005 for Motion.
On the 17th of March, 2005 parities were again absent with Mr. Temidayo Eseyin appearing for the plaintiff. Learned Counsel again informed the Court that the case was fixed for hearing but unfortunately they were unable to serve the Defendant having tried all they could to serve the Defendant personally. Learned counsel then sought for an adjournment to the 12th day of April, 2005 for hearing which the Court again obliged him.
On the said 12th day of the April, 2005, parties were absent and Mrs. Akwahear appeared for the plaintiff and informed the Court again that the case was slated for hearing but they had not been able to serve the defendants with the processes. However, they had the Motion Ex-parte for substituted service dated 03/03/2005 and filed on the 11th of April, 2005. The Motion was then moved and same was granted and ordered as prayed. The case was further adjourned to the 28th day of April, 2005 for hearing. Come 28th of May, 2005 (see the Records) parties were still absent with Mrs. Akwahear appearing for the Plaintiff. The learned counsel then intimated the Court that the suit was brought under the ‘Undefended List’s Procedure/Cause List’ and there was no Notice of Intention to Defend and accordingly he asked for Judgment. The Court then made the following remarks and ruled subsequently inter alia thus:
“Court’s Judgment:- This is a case brought under the Undefended Cause List for a claim bf N500,000.00 paid to the defendant for the purchase of a vehicle that he did not supply.
The Plaintiff also claims 10% percent interest from the day of Judgment until the final liquidation of the Judgment sum. There is no notice of intention to defend. Consequently, Judgment is hereby given to the plaintiff as per his claim on the Writ'(See page 41 of the Records).
Following the filing of the application to set aside the Judgment by the Judgment-Debtor, the Counter-Affidavit of the Respondent and the hearing of the written Addresses of the respective learned counsel in this regard which proceedings are not reflected in the Record of proceedings; the learned trial Judge Honourable Justice J. F. Gbadeyan Ruled on the 27th of October, 2008, that the application lacked merit and same was accordingly dismissed. Dissatisfied with the Ruling of the Honourable Court, the Appellant through his Counsel S. A. Bamidele Esq. of Adekunle Bamidele & Co., on the 11th of May, 2009, filed a Notice of Appeal dated 6th of May, 2009, with three Grounds. After the Record of Appeal was transmitted to this Court, the learned Counsel for the Appellants filed the Appellants’ Brief of Argument dated the 26th day of March, 2010 on the 29th of March, 2010. The Appellants duly served the Respondent but the Respondent refused and/or neglected to file his Brief of Argument.
By a Motion on Notice brought pursuant to Order 6 Rule 4 of the Court of Appeal Rules, 2009, the Appellant sought the leave/order of this Honourable Court setting down the Appeal for hearing on the Appellants’ Brief of Argument alone and for such further Order(s) as the Honourable Court might deem fit to make in the circumstance of the case. The Motion which is dated the 27th day of April, 2011 was filed on the 3rd day of May, 2011.
On the 31st day of January, 2012, this Honourable Court having satisfied itself that the Respondent was duly served with the necessary processes in this Appeal including the Appellants’ Brief granted the Appellants’ Application and made the order as prayed for the Appeal to be accordingly heard on the Appellants’ brief alone. The Appeal was subsequently so heard on the 15 day of February, 2012.
Now, from the Three Grounds of Appeal filed by the Appellants, two Issues were formulated for determination in the Appellants’ Brief couched as follows and reproduced hereunder:-
“I. Whether there was service or proper service of the Originating processes i.e the writ of Summons, affidavit in support of the summons and other processes on the Defendants/Appellants and if the answer is in the negative what is the effect of that failure on the entire proceedings (Grounds 1 & 2).
“II. Whether the Defendants/Appellants were denied fair hearing by the trial Judge in the course of that trial of the suit (Ground 3)”.
ARGUMENT ON ISSUE NUMBER ONE (1)
On this issue the learned counsel for the Appellants alluded to the view of the trial Court at pages 42 and 43 of the Records (the Ruling of the Honourable Court in respect of the Application to set aside); and submitted that from the observation of the learned trial Judge, it is clear that he closed his eyes to the fundamental nature of service or proper service of originating processes such as Writ of Summons, affidavit in support of the summons and other processes on the Defendant in the suit.
For this submission he relied on the decision in Dr. N.E. Okoye & Anor. V. Centre Point Merchant Bank Ltd. (2008) ALL FWLR (Pt.441) 810 at 824-825; adding that in a similar matter, where service of process is required, failure to serve such process is a fundamental vice and the person so affected by the Order but not served with the processes is entitled ex debito justitiae to have the Order set aside. The case of H.R.H Dr. Frank Adeleke v. Mr. Godfrey Chidieze Ogbondha (2007) ALL FWLR (Pt. 351) 1456 at 1482; was cited further in this respect to submit that there is nothing in the Records that shows that the Defendants/Appellants were aware of the pending suit. Furthermore, it was argued that although the Claimant/Respondent did apply for substituted service, by pasting which application was granted, no evidence from the record shows that the said order was actually carried out by the Bailiff pages 12-14 refer.
Learned Counsel for the Appellant argued further that the only affidavit of service of Mallam Abdul-Rahaman Ajadi, a Chief Bailiff of the High Court of Justice, Ilorin, as can be found at page 15 of the Records indicated that service could not be effected. From the averments in the affidavit of service, the learned counsel maintained, the most convincing proof of whether a party has been served or not is the contents of the affidavit sworn to by the Bailiff of the Court. James Egbujo & Ors v. Bartholomew Mbagwu (2008) ALL FWLR (Pt. 429) 569 at 588 per Saulawa, JCA; was further cited in submitting that from the quoted portion of the dictum of Saulawa JCA, the holding of the Court below in paragraph one of his Ruling of 27th October, 2008, that the Appellants were served as a last resort by substituted means, is a misdirection in law.
The learned Counsel also reflected on the Ruling of the learned trial Judge at paragraph six thereof that Defendants/Appellants never disclosed any defence not to talk of good defence to bring the application under Order 17 Rule 11 (page 43 refers) and contended that the learned trial Judge misapplied the law in that the reason or just cause for default envisaged by Order 17 Rule 11 could not have arisen because until 14/8/2008 when execution was levied, the Appellants were not aware of any judgment against them.
For the sake of emphasis Order 17 Rule 11 of the Kwara State High Court (Civil Procedure) Rules, 2005; was reproduced to submit that paragraphs 4-8 of the affidavit in support of the Motion to set aside which according to learned counsel for the Appellants disclosed the facts of non-service of the processes (pages 21-22 of the Records), disclosed that there was just cause for default of appearance in that the Appellants were not aware of any judgment entered against them.
Moreover, learned counsel further argued the Appellants moved fast in bringing the application to set aside on the 19th of August, 2008 a day after the date of execution of the Judgment/writ of fifa, which was the day they became aware of the Judgment. It was then contended on this issue on the authorities of UBN Plc v. Chimaeze (2007) ALL FWLR (Pt. 364) 303 at 325-326 and Lamboyo Ltd. V. New Nigeria Bank Plc. (2007) ALL FWLR (Pt 365) 585 at 595; that an Appellate Court like ours will surely interfere with or upturn the erroneous finding of the lower Court and substitute a different one for it as such a finding is material to the conclusion arrived at by the trial Court which has occasioned a miscarriage of Justice. We were therefore urged to resolve the issue in favour of the Appellants.
ARGUMENT ON ISSUE NUMBER TWO (2)
On this issue, the learned counsel for the Appellants relied on the arguments on Issue Number 1 (one), and posited that the learned trial Judge was wrong to have given judgment in favour of the Respondent and against the Defendants/Appellants without their being given the opportunity to be heard. Learned counsel noted that even as reflected in page 15 of the Records the Defendants/Appellants only became aware of the pending suit on 14/8/2008 when the Bailiff of the Court below and two policemen came to the Appellants’ business premises/office to levy execution of the Judgment of 28/4/2005, (Pages 21 refer). Citing the Supreme Court case of A.P.C. Ltd v. N.I.D.C. (Nig. Universal Bank) Ltd. (2000) ALL FWLR (Pt. 335) 1 at 51; per Onnoghen, JSC; which was followed by this Division of the Court of Appeal in Wing Commander A. Adamu v. Donatus F. Akukalia (2008) ALL FWLR (Pt 428) 352 at 410; it was submitted that the learned trial Judge acted without jurisdiction in giving judgment against the Appellants without hearing them on the 28th of April, 2005 and when in fact they were unaware of any pending suit against them.
The learned counsel for the Appellants took a further view that since there is nothing to show from the Records that the Appellants were aware of the pending suit we should hold that the Appellants’ right to fair hearing were breached and consequently on the authorities of Salu v. Egbeibon (1994) 6 SCNJ (Pt.11) 223 and Adamu v. Akukalia (supra) at 405, the proceedings were a nullity.
Finally on this issue, it was the contention of the learned counsel for the Appellants that the issue be resolved in favour of the Appellants in that the failure of the trial Court to ensure that the Defendants/Appellants were served with the originating processes to enable them enter a defence amounted to a breach of their fundamental right to fair hearing. We were finally urged to set aside all the monetary awards made in favour of the claimants/Respondent by the trial Court.
RESOLUTION OF ISSUES
ISSUE NUMBER ONE (1):- It would be recalled that this issue posed the question as to whether there was service or proper service of the originating processes i.e. the Writ of Summons, Affidavit in Support of the Summons and other processes on the Defendants/Appellants and if the answer is in the negative, what is the effect of that failure on the entire proceedings.
In an attempt to answer this question it is necessary to have recourse to the entire Record of proceedings/Appeal before this Honourable court. As has been highlighted earlier the suit was brought in the lower Court under the Undefended List procedure following the application by the Plaintiff/Respondent for that purpose. The learned trial Judge granted the application on the 17th day of February, 2005 and the Writ of summons was accordingly so marked. From what can be gathered in the Record of Appeal, it would appear that the Appellants could not be served and the Plaintiff/Respondent came by way of Exparte Motion dated the 3rd day of March, 2005 and filed on the 11th day of March, 2005, for leave for the Appellants to be served by substituted means the writ of summons, the supporting Affidavit, the order of Court made on the 17th of February, 2005 placing the suit under the Undefended List and all other processes in the suit by pasting same on the last known business abode of the Appellants at number 334 opposite Ilorin City Hall, Geri Alimi, Lagos Road.
It is pertinent to note that Exhibit “A” to the Motion for substituted service which is an Affidavit of service deposed to by Mallam Abdul-Rahaman Ajadji (Chief Bailiff) of the High Court of Justice of Kwara State which is contained in page 15 of the Record of Appeal avers as follows:-
“IN THE HIGH COURT OF JUSTICE OF KWARA STATE OF NIGERIA
AFFIDAVIT OF SERVICE
KWS/2/2005
“Mr. Idowu Agboola Plaintiff
And
Between Amos Motors (Nig) Ltd. & 1 Or. Defendant
“I, Mallam Abdul-Rahaman Ajadi (Chief Bailiff) of High Court of Justice, Ilorin on the 22nd Feb. 23rd Feb, 24th Feb, 28th day of February, 2005 at 9.15am O’clock.
“I served upon …………………….The service could not be effected.
“Writ of Summons Court order, Affidavit in support and Exhibit a true copy whereof is hereunto annexed issued out of “this court at… ..Ilorin. …., Upon …………………………..
“Complaint of . …………………………………..
“by delivering the same personally to,…….,The service could not be effected
“Because the defendant was not seen for service,
“Therefore the papers are returned unserved.
“Before the day I served the summons I did not know…………
“Personally, but after he was pointed out to me by …………..
“I asked him if he were…………………………….
“And he said that he was………………………………………….
“Sworn to at High Court Ilorin
“This …………………28th day of Feb., 2005
Before me:
“Signed. Signed
“Bailiff Commissioner for Oaths”
Also, as can be gleaned from the Records, it is not clear whether the Appellants were subsequently served by pasting as ordered by the Court below as there was no affidavit of service to that effect. However, even though the case was adjourned to the 4th day of March, 2005 following the order placing the suit under the undefended List as made on the 17th of February, 2005, hearing could not commence on that date and the case was again adjourned to the 10th day of March, 2005 when the Respondent intimated the Court that they had tried all they could to serve the Appellants to no avail and he sought for an adjournment to the 12th of April, 2005.
Yet on that 12th of April, 2005 the Respondent reported to Court that they had not been able to serve the Appellants hence the argument of the motion Ex-parte for substituted service which was granted and the case was adjourned to the 28th of April, 2005 for Hearing. On the said 28th of April, 2005 the following were recorded as what transpired at the proceedings of that day 28/95/2005.
“Parties absent
“Mrs. J.M. Akwahear for the plaintiff.
“Mrs. Akwahear: It is a case under the undefended cause list. There is no notice of intention to defend.
“We ask for Judgment.
‘”Court’s Judgment: This is a case brought under the undefended cause list for a claim for N500,000.00 paid to the defendant for the purchase of a vehicle that he did not supply. The plaintiff also claims 10% interest from the day of judgment until final liquidation of the Judgment sum.
“There is no notice of intention to defend, Consequently, judgment is hereby given to the plaintiff as per his claim on the writ.
“Signed
“Hon, Justice J. F. Gbadeyan
“Judge
“28/04/2005.”
From the foregoing proceedings and having combed the entire Records, there is no indication as to whether the Respondent or the Bailiff of the High Court of Kwara State actually effected the substituted service by pasting the writ of summons; the Affidavit in support, the Order of Court placing the suit on the undefended list or other processes in the suit at the last known abode of the Appellants Business which was No. 334 Opposite Ilorin City Hall; Geri Alimi, Lagos Road, Ilorin or any other place as ordered by the learned trial Judge. Apart from the absence of an affidavit of service, neither Mrs. Akwahear, the learned counsel for plaintiff nor the Bailiff of the Court did inform the Court that the Appellants had actually been served and the learned trial Judge did not bother too to find out whether the Appellant had actually been duly served.
Curiously again, whereas judgment under the undefended cause list was entered in favour of the Plaintiff on the 28th of April, 2005, it was not until the 31st of January, 2007 that a Writ of Attachment and Sale of Goods Forms 4, 5, 6 and 27 was obtained and Judgment Form 41 (Notice of Attachment) executed and the Mazda 626 Tokunbo car fifaed/distrained from the Appellants’ shop on the 14th of August, 2008. Upon the application of the Judgment-Debtors/Appellants, supported by an affidavit paragraphs 7, 10, 11 and 12 thereof aver that the 2nd Defendant/Applicant/Judgment-Debtor made spirited effort to convince the Bailiff and two policemen who came to distrain the car that they were not served with the Court processes while the case was on going, to no avail.
Again t by virtue of his position as the Chief Executive of the 1st Defendant/Judgment Debtor/Appellant, the 2nd Appellant who deposed to the amount disclosed and alleged that the Judgment Creditor/Respondent obtained the judgment fraudulently, as they were not served with any processes throughout the going on of the proceedings. He has also deposed to the fact that the judgment constituted a travesty of justice and same should be set aside. Finally, given the surrounding circumstances, the Appellants contended that it was in best interest that their application for the release of the Mazda 626 be granted.
In opposition to the application to set aside the judgment of the lower Court, staying further execution and ordering the release of the car to the Judgment- Debtors/Appellants, the Respondent/Judgment Creditor deposed in paragraph 9 of his counter affidavit that the proof of substituted service was in the Records of the Court below. In paragraphs 10 and 11 he stated that he knew as a fact that the Appellants were served with the processes since service by substituted means is good service and that the Appellants were aware of the pendency of the suit of the judgment given therein. The Respondent also deposed to the fact that it was after the affidavit of substituted service was deposed to by the Bailiff of the Court that the learned trial Judge gave Judgment in favour of the Plaintiff/Respondent. See para. 12 of the Respondent’s Counter-Affidavit.
Explaining away the cause of the delay in executing the judgment from 2005 till 2007/2008, the Respondent averred in paragraphs 13 to 15 of the Counter-Affidavit, that after the order of substituted service, the 2nd Defendant/Judgment-Debtor/Appellant made contacts with the Respondent asking for time within which to supply the vehicle. Out of sympathetic consideration the Respondent exercised patience following the call for mercy by the Appellant and later by the Appellants’ counsel Barrister Femi Makinde who acted for the Appellants for a very long time.
Unfortunately and incidentally the said Barrister Makinde also fell victim of the 2nd Defendant/Judgment-Debtor/Appellant and it was not unit the said Barrister Makinde had initiated proceedings in the Upper Area Court I, Ilorin, that he was able to recover the money he deposited with the Appellants for the supply of a vehicle but which the 2nd Defendant/Appellant refused/failed to supply. In paragraph 16, the Respondent lamented that it was rather confusing that after the Judgment in the case was executed the Affidavit of substituted service disappeared from the Court records.
He contended that the procedure adopted by the Appellants for the setting aside of the Judgment and the execution was incompetent as the judgment was not obtained by fraud, the Appellants being aware of the pendency of the matter. The Respondent also denied that the judgment was a travesty of Justice against the Appellant and as such the Application should be discountenanced.
Now, the learned counsel for the Appellants has chastised the Ruling of the lower Court particularly at pages 42 and 43 of the Record of proceedings where the learned trial Judge held thus:-
“This is an application to set aside the Judgment of 28/04/2005 in an undefended action to recover N500,000.00 paid by the Judgment Creditor/Respondent to the Judgment-Debtor/Applicant since December, 2003 for the supply of a vehicle that never was. The applicant was served the Court processes, as a last result (resort ?), by substituted means. Judgment was consequently entered in favour of the claimant for the sum of N500,000,00 with 10% interest per annum until the final liquidation of the judgment sum.
It was not until the execution of a writ of fifa on 14/8/08 that the applicants filed this application on 19/8/08. Curiously the applicant used such words as “a travesty of Justice” to describe some aspects of the proceedings.
Although the applicant’s action portrays a barefaced blatant criminality the applicant’s learned Counsel Mr. Wale Obadofin did not help matters either. Although he brought this application under Order 10 Rule 5 and Order 17 Rule 11 of the High Court (Civil Procedure) Rules 2005 he neither stated just cause for the default nor disclosed defence let alone a good defence to bring the application under Order 17 Rule 11. In the circumstance, this application is clearly an abuse of the Court process and it will, no doubt, amount to a travesty of justice to grant it”
Learned counsel for the Appellants has posited that from the reasoning of the learned trial Judge as above reproduced; he shut his eyes to the fundamental nature of service or proper service of originating process such as the Writ of Summons, Affidavit in Support of the summons and other processes on the Defendants.
It is indubitable as the law is settled on the authorities cited and other authorities too numerous to mention that service of originating processes on the adverse party is a threshold issue and condition precedent for the exercise of a Court’s jurisdiction. In the case of Okoye v. Centre Point Merchant Bank Ltd. (2008) ALL FWLR (Pt 441) 810 at 824-825 paras, G-A and 832 – 834 paras D-B; which was rightly cited by the learned counsel for the Appellants; Tobi, JSC; emphasized the fundamental nature of service of originating processes and the effect of non-compliance with the provisions of the Rules of Court in that respect, when he intoned:-
“Non service of writ of summons is not a mere defect in procedure. It is not also one of want of form but rather an incurable irregularity that is intrinsic to the jurisdiction of the Court. It is beyond doing technical justice. It goes to the doing of substantial justice, Substantial justice is not only for the party in default of the rules of Court. It is also for the adverse party who is the victim of the non-compliance with the rules. Rules of Court are meant to be obeyed.”
The Emeritus judicial icon went on to distinguish between rules the non obedience which is curable and those not curable and posited that the rules of the category which calls for consideration herein affect the props and foundation of the case as the irregularity affects the jurisdiction of the Court.
Thus, from what can be surmised as rightly submitted by the learned counsel for the Appellants, the service of the originating processes like the Writ of Summons, the affidavit in support, the Order of Court placing the suit under the Undefended List; is fundamentally a condition precedent for the conferment of the lower Court with the requisite vires or jurisdiction to determine the case. Particularly in this case that suit was brought under the Undefended List procedure in which case, where the Appellants were served and they deliberately refused to file a Notice Of Intention To Defend disclosing a defence on the merit, judgment would be entered against them as the learned trial Judge had done, on the presumption that they had no defence in law and fact as deposed to in the affidavit in support of the Writ of Summons.
Where as in this case, the Appellants complain that they were neither served nor apprised of the proceedings in the lower Court, the proceedings of the lower Court ought to be declared a nullity for violating one of the twin pillars of the rule of fair hearing which is audi alteram partem. See Odutola v. Kayode (1994) 2 NWLR (Pt. 324). Obimonure v. Erinosho (1966) 1 ALL NLR 250; Scott Emuakpor w Ukavbe (1975) 12 S.C 41; Odita v. Okwudinma (1969) 1 ALL NLR 228 and the celebrated case of Sken Consult (Nig) Ltd v. Sekonday Ukey (1981) 1 SC. 6; all cited in the Okoye v. CPMB Ltd case (supra).
In the same case, the object of service of processes was also enunciated as being to give notice to the other party on whom service is to be effected, so that he might be aware of and able to resist, if he may, the action brought against him. In other words, it is to obviate the element of surprise and to give the adverse party (in this case, the Defendants/Judgment-Debtors/Appellants) the opportunity of knowing the case they were to meet and if possible as in this case proffer a defence on the merits. See United Nigeria Press Ltd v. Adebanjo (Nig). 6 NSCC 395.
I must note that because of the absence of any affidavit for substituted service, this court really is as confused as the Respondent was in the lower Court. We are really in a quandary whether the Appellants were actually served with the originating processes by substituted means and whether the Bailiff of the lower Court actually deposed to an affidavit of service which has now developed wings by its conspicuous absence from the Records.
However, where as in this case the Respondent claimed that the Appellants were served but the Appellants vehemently deny same, the Supreme Court has graciously given us a clue as to how we may determine the truth or otherwise of the assertion of each of the parties. In this connection, we shall invite Tabai JSC; who read the lead Judgment in the Okoye v. Centre Point Merchant Bank Ltd case (Supra) at page 825 paras, F-H; to speak on this issue which also cropped up in that case as it has herein thus:-
“This issue of service was the main and fundamental issue at the Court of Appeal. It is settled that an affidavit of service deposed to by the person effecting the service setting out the fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matters stated in the endorsement or affidavit. Also see Schroder & Co v. Major & Co. (Nig) Ltd (1989) (Pt 101) 1 at 11.
Where however the service evidenced in the affidavit of service is disputed by the defendant, as in this case, the Court of Appeal has a duty to satisfy itself that there had in fact been service on the defendant. Alhaji Umaru Launi v. Ezeadua (1983) 6 SC 370; Madam Alice Okesuji v. Fatai Alabi Lawal (1991) NWLR (Pt.170) 661 at 673.”
In the Okoye v. Centre Point Merchant Bank Ltd. case, an affidavit of service was deposed to and filed by the Bailiff yet the apex Court endorsing the position of the Court of Appeal, held that there was no proper service on the Defendant. This was after the Court of Appeal had scrutinized the conflicting affidavits of the parties and discovered that the affidavit of the Appellant was fraught with inconsistencies apart from the dispatch book belying the averments in the affidavit of service.
Our situation herein is even more shrouded in the mist of uncertainty more so as there is/was no indication that the Bailiff who deposed to the affidavit entered the processes served in the Dispatch Register nor did he swear to a Further Affidavit that the affidavit of substituted service earlier deposed to, had been removed from the case file or Court’s Records. Be that as it may, and in line with the dictum of Tabai, JSC; who after highlighting the verifying affidavit of Mr. Wilson Abia, the Onitsha Branch Manager of the Defendant/Respondent who made very crucial assertions in his Denial of the purported service held again at page 527 paragraph F-G; of the said Report thus:-
There was no reaction from the Chief Bailiff to the above assertions. They remain essentially unchallenged. In view of the foregoing averments which remain practically unchallenged and the internal cracks in the affidavit evidence of service, the finding of the Court below about there being no proper service of the processes on the Defendant/Respondent cannot be faulted. The result is that I resolve the issue of service in favour of the Defendant/Respondent”.
In our instant case, although the Bailiff did not depose to a Further Affidavit in support of the fact that he deposed to affidavit of substituted service which is now missing, I am of the candid view that, where the Respondent deposed to very salient and damaging facts concerning the service of the processes and the appeal for mercy by the Appellants and their counsel which led to the delay in the execution of the judgment for three years; furthermore, where the Respondent alleged that the Appellants even extended their fraudulent nay criminal tendencies as found by the Court to Barrister Femi Makinde who had appeared for them for a long time culminating in the said learned counsel resorting to filing an action in the Upper Area Court, Ilorin Division; before the Appellants could refund the money equally deposited for a vehicle which the Appellants also failed to supply, one would have thought that the Appellant would file a Further Affidavit in rebuttal of such damaging assertions, but they chose to keep silent. See paragraphs 8, 9, 10, 11, 12, 13, 14 – 16 of the Respondent’s counter-affidavit against setting aside the judgment.
Their silence in this regard was not golden but a tacit admission of all the assertions in those paragraphs of the Respondent’s affidavit that they were actually served and that they pleaded for mercy which led to the exercise of patience and mercy by the Respondent for almost three years before the execution of the judgment. Also there was admission that the Appellant had the knack for fraudulently collecting monies from gullible customers without supplying them with the cars for which the sums of money were deposited with them (Appellants). Furthermore, the proof of service must have been sworn to and filed but for whatever reason, it must have been done away with for the purpose of defeating the Respondent’s claim after execution of judgment had been levied.
I agree however with the submission of the learned counsel for the Appellants that where service of processes is not effected on a party who is supposed to be served before a Court makes an order against such a person, such an order is afflicted with a fundamental vice and a party to such an order is entitled ex debito justitiae, to have the order set aside. The Supreme Court authority of Eke v. Ogbonda (2007) ALL FWLR (Pt. 351) 1456 at 1452; is on the point no doubt but as I had held earlier even though there is nothing on record by way of Affidavit of service; the inability of the Appellant to refute the allegations contained in paragraphs 8-16 of the Appellants’ affidavit in support of the motion to set aside the Judgment, stay execution and return the Mazda 626 to the Appellants, are weighty enough to warrant our conclusion that the refusal, failure and/or neglect to refute or rebut those assertions, left them unchallenged and therefore admitted.
I have already alluded to the fact of the deposition of Alhaji, Abdul-Rahaman Ajadi (the Chief Bailiff), that service was not effected because the Appellants were not seen-and that the papers were returned. However, this was before the motion for substituted service which we have now presumed that the order there for was executed and that the Appellants thereafter became aware of the pending proceedings and pleaded for time to enable them supply the vehicle which they did not do for three years, until the judgment was executed.
The dicta of Tabai, JSC, as earlier quoted buttress the Appellants’ submission that the most convincing proof of service is the contents of the affidavit of service sworn to by the Bailiff of Court. Indeed the authorities of James Egbujo & Ors v. Bartholomew Mbagwu (2008) ALL FWLR (Pt. 429) 569 at 588 per Saulawa, J.C.A. is very instructive.
However, the learned trial judge did not misdirect himself as erroneously contended by learned Counsel for Appellants when he held that the Appellants were served by substituted means as a last resort. Since he had the advantage of hearing and watching the parties and was supposed to be in control of the proceedings before him.
As for paragraph 6 (six) of the Ruling of the Honourable Court where he held that the Appellants did not disclose any defence on the merits or any defence at all; the learned Counsel for the Appellants has lost sight of the fact that this is a case fought under the Undefended List procedure. For the avoidance of doubt the provisions of Order 23 Rules 1-4 of the Kwara State (Civil Procedure) Rules 2005, which guide the said procedure and in particular Rules 3 (1) and (2) and Rule (a) thereof are very clear that:-
“23(1). Where a Claimant has filed a Writ of Summons endorsed with a claim to recover a debt or liquidated money demand only and the writ is supported by an affidavit setting forth the grounds upon which the cause of action is based and stating that in the deponent’s belief there is no defence to the action, the Judge if satisfied that there are good grounds for believing that there is no defence thereto, shall enter the suit for hearing “in what shall be called the Undefended List and cause the Writ of Summons to be marked accordingly and enter thereon a date for hearing.”
By Rule 2 thereof, the Registrar shall deliver to the parties as many copies of the affidavit as there are parties against whom relief is sought and the Registrar shall annex one copy to each of the Writ of Summons for service.
Under Rule 3(1) thereof :-“If the party served with the Writ of Summons and affidavit delivers to the Registrar, not less than 5 days before the date fixed for hearing, a Notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit the court may give him leave to defend upon such terms as the court may think just”.
Rule 3(2) stipulates on the other hand that “where leave to defend is given under this rule the action shall be removed from the Undefended List and placed on the ordinary cause List and the Court may order pleadings or proceed to hearing without further pleading”.
Above all and I think the provision of the Rules which apart from Rule 3(1) is most appropriate and germane in the circumstances of this case where the Appellants failed, refused and/or neglected to deliver a notice of intention to defend, is Rule 4 thereof which is to the effect that:
“4 Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the Court the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the claimant to summon witnesses before the Court to prove his case formally.”
See per Onnoghen, JSC; in Ekulo Farms Ltd v. U.B.A. Plc. (2006) ALL FWLR (Pt. 319 at 920-921; on the purport of the provisions of Order 23 of the High Court (Civil Procedure) Rules and also I.C.H. Ltd v C.S. & R Ltd (2008) ALL FWLR (Pt. 400) 680 C.A; A.C.B Plc v. Emedo (2003) FWLR (Pt. 177) 862 C.A; Dalko v. U.B.N. Plc. (2003) FWLR (Pt 180) 1500 C.A. and Imoniyame Holdings Ltd v. Soneb (2002) FWLR (Pt. 90) 1445 C.A.
In the case at hand, the Defendants/Appellants did not furnish any Notice of Intention to Defend accompanied by an affidavit disclosing a defence on the merit which is the first and fundamental duty imposed on them to be fulfilled within the time limited by the Rules. The general position of the law as has been held in a plethora of cases is that where the Defendants as in this case failed to comply with the Rules of the court as above stipulated, they shall be precluded from participating in the proceedings even if they were present on the return date and the court would, based on some decided authorities, enter judgment against the Defendants/Judgment-Debtors/Appellants, as the lower Court had done, See N.I.P.O.S.T. v. Zaadeco Ltd (2006) All FWLR (Pt. 335) 110 C.A Dangote Gen. iles Product Ltd v. Hascon Associates Nig. Ltd. (2005) ALL FWLR (Pt. 255) 1163 C.A and Amana Community Bank Nig Ltd v. Olu (2003) (Pt.158) 1308 at 1319.
Although case law has now in the interest of justice ameliorated the harshness of the effect of failure to deliver Notice of Intention to defend as at when due by making allowance for such a defaulting Defendant to be granted extension of time particularly where he took the slightest step to so do albeit belatedly; even by oral application, the normal practice, is for the Defendants to file a motion on notice praying for extension time within which to deliver the notice of intention to defend which motion is usually supported by an affidavit explaining the reasons for the delay in filing the necessary processes.
The court would normally grant such application if satisfied that there is some element of seriousness on the part of the defendant and that the affidavit discloses a prima facie, arguable or reasonable defence to allow him defend the suit. In this particular case, no such application either orally or by way of motion on notice was made. See N.S.C.C. v. Celtic Commerce & Ind. Ltd. (2002) FWLR (Pt.126) 944 and Obadiegwu v. Lion Bank Nigeria Plc. (2003) FWLR (Pt.165) 140.
Where however the Defendants/Judgment-Debtors/Applicants did not furnish any Notice of Intention to Defend coupled with an affidavit disclosing a defence on the merit as in this case, to the extent that execution was levied before coming with the application to set aside the Judgment, further execution of the Judgment and return of the distrained Mazda 626; the Defendants/Judgment-Debtors/Appellants even under Orders 10 Rule 5 and 17 Rule 11 of the Kwara State (Civil procedure) Rules; still owed the Court the bounding duty to convince the learned trial Judge that his affidavit in support disclosed good and substantial grounds to warrant the setting aside of the Judgment or in the alternative that the affidavit raised a defence on the merit.
For instance, in Atatugba & Co. v. Gura Nigeria Ltd. (2005) ALL FWLR (Pt. 256) 1219 SC; where the Supreme Court relied on the cases of Nishizawa Ltd v. Jethwani (1984) 12 SC 324 and Federal Military Government v. Sani (1990) 4 NWLR (Pt. 147) 688 at 713, it was held that:
1. The affidavit in support of the Notice of intention to defend must disclose prima facie defence.
2. The affidavit must not contain a mere general statement that the Defendant has a good defence to the claim, but such general claim must be supported by particulars which if proved, would constitute a defence.
3. It would be sufficient if the affidavit discloses a triable issue or difficult point of law; or disputed facts which ought to be tried; or a real dispute as to the amount due; which requires the taking into account to reach a decision or any circumstances showing reasonable grounds of a bonafide defence; and
4. To determine whether the affidavit discloses a defence on the merit, the case put forward by each of the parties to the case must be discreetly scrutinized. See per Edozie JSC at page 1231 of the Report.
Speaking in the same vein Tobi JSC at page 1238 of the same case maintained thus:-
“Under the undefended List procedure the defendants affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiff’s claim and affidavit and state clearly and concisely what the defence is and what facts and documents are relied on to support it. The affidavit in support of the Notice of intention to defend must of necessity disclose facts which will at least throw some doubt on the case of the Plaintiff. A mere general denial of the Plaintiff’s claim and affidavit is devoid of any evidential value and as such would not have disclosed any defence which wilt at least throw some doubt on the plaintiffs claim…..To satisfy a Judge in an action on the undefended list, the defendant must depose to what on the face of the affidavit discloses a reasonable defence.”
I am of the considered view that the Appellants ought to and/or would have taken advantage of the provisions of Orders 10 Rule 5 and 17 Rule 11 of the Kwara State High (Civil Procedure) Rules 2005, to remedy the default in furnishing the Court below with an affidavit which would at least throw or cast some doubt on the case of the Respondent. Their defence need not be ‘cast iron’ or beyond reasonable doubt, but should have disclosed for instance how much he owed or had refunded to the Respondent or in this case why he did not supply the bus as at when due to the Respondent, having by the Receipts annexed to the Respondent’s affidavit in support of the Writ of Summons, collected a whopping sum of N500,000.00 from the Respondent since 2003 for the supply of the bus.
Turning strictly to the provisions of the Kwara State High Court (Civil Procedure) Rules 2005, upon which the Appellants’ application to set aside the Judgment of the lower Court was predicated; Order 10 Rule 5 thereof provides thus:-
“5. The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these provisions, or by any judgment, order or direction to do any act in any proceedings:
Provided that any party who defaults in performing an act within the time authorized by the Court or under these Rules, shall pay the Court an additional fee of N100 for each of such default at the time of filing his application for extension of time.”
Order 17 Rule 11 on the other hand, which provides for Default of Appearance; states thus:
“Where Judgment is entered pursuant to any of the preceding rules of this Order, the Court may set aside or vary such Judgment on just terms upon an application by the Defendant. The application shall be made within six days, show a good defence to the claim and a just cause for the default.”
By the provisions of these Rules the Court below was imbued with the unfettered discretion to extend time within which the Appellants may deliver their Notice of Intention to Defend accompanied by an affidavit disclosing a defence on the merit where the five days stipulated in order 23 Rule 3(1) of the Kwara State High Court (Civil Procedure) Rules 2005, had elapsed.
Also by the provisions of Order 17 Rule 11, where Judgment was entered against the Appellants in default of appearance on the 28th day April, 2005; the Court also had unfettered discretion to set aside or vary the Judgment upon the application of the Appellants provided the application was made within six days of the delivery of that Judgment and upon the Appellants showing a good defence and a just cause why they defaulted to appear before Judgment was entered against them.
From the foregoing provisions, it is clear that the Appellants had/have a herculean task to convince the Court to exercise its discretion in their favour. In the first place, the Appellants ought to have satisfied the Court below with good and substantial reasons why they did not furnish it with a Notice of Intention to Defend within the five days stipulated by the Rules before the hearing and entering of Judgment. Again as regards Order 17 Rule 11, just as Order 23 Rule 3(1) of the Rule stipulates that the accompanying affidavit to the Notice of intention to Defend must disclose a defence on the merit, so should the Appellants have shown a good defence to the action which Judgment was/is sought to be set aside as well as the justification or justifiable reason(s) for the default of appearance.
Incidentally, the Supreme Court in the case of Mohammed Ndejiko Mohammed & 4 Ors. v. Mohammed Husseini & Alhaji Saudu Kawa (Emir of Lafiagi) (1998) 12 SCNJ 136 at 153 – 154 and 159 & 150 (which emanated from this jurisdiction); had cause to pronounce on the nature of default Judgment, the parameters for consideration of an application to set aside a default Judgment and the power of a Court to set aside a default Judgment. It is also pertinent to note that in that case, Order 27 Rule 10 and 37 Rule 9 of the then High Court of Kwara State (Civil Procedure) Rules which empowered the Court to set aside a default Judgment as in our instant case, fell due for interpretation.
His Lordship Wali, JSC; who delivered the lead Judgment of the apex Court at page 159 paragraph 35 of the Report on the power of the Court below to set aside its Judgment delivered in default of appearance, posited thus: “The question of setting aside a default Judgment is a discretionary power inherent in the Court that delivered it, in the present case the Court has the additional statutory power conferred on it by the Rules which I have already alluded to.”
Of course, it has to be added that like all discretionary powers, the Court had in the exercise thereof to act both judicially and judiciously, taking into consideration the peculiar facts of the case and in this case the reasons advanced in the affidavit in support of the’ motion to set aside, stay execution and for the return of the distrained car. Thus, in this wise, the emeritus Law Lord at page 153-154 paras. 35-40 of the said Mohammed v. Hussein (supra); restated the position of the law on the parameters for determination and grant of applications of this nature inter alia:-
“The principle is that unless and until a Court has pronounced a Judgment on the merit or by consent it retains the power to set aside its own default Judgment. The power to do so is discretionary which has to be exercised judiciously, guided by the following principles pronounced by this Court in Williams & Ors. v. Hope-Rising & Voluntary Funds Society (1982) 1 – 2 SC 145:
“1. The reasons for the applicant’s failure to appear at the hearing or trial of the case in which Judgment was given in his absence;
2. Whether there has been undue delay in making the application to set aside the Judgment so as to prejudice the party in whose favour the Judgment subsists:
3. Whether the party in whose favour the Judgment subsists would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such a course inequitable;
4. Whether the applicant’s case is manifestly unsupportable; and
5. Whether the Applicant’s conduct throughout the proceedings, that is, from service of the writ upon him to the date of Judgment, has been such as to make his application worthy of sympathetic consideration.
See also Idam Ugwu & Ors. v. Nwaji Aha & Ors. (1961) ALL NLR 438; Adebayo Doherty v. Ade Doherty (1964) NNLR 144 at 145; Khawan v. Elias (1960) 5 FSC 224 and Evans v. Barlain (1937) 2 ALL E R 646 at 650.”
See also the recent case of S & D Construction Co. Ltd. v. Ayoku (2011) ALL FWLR (Pt 604) 1 at 14; per Fabiyi, JSC; and the dictum of Idigbe, JSC (of blessed memory) who in Williams v. Rising Voluntary Funds Society (Supra) was of view that all of the above parameters ought to be resolved in favour of the Applicant’s application before the Judgment should be set aside. See further Sanusi v Ayoola (1992) 9 NWLR (Pt. 265) 275 and N.N.S.C Ltd v. Establishment Sima of Vaduz (1990) 21 NSCC (Pt 3) 526 at 539.
Going by the parameters set out in the above cited cases and in view of the depositions in paragraphs 4 – 8 of the Appellants/Applicants’ affidavit in Support of the motion to set aside the Judgment of the trial Court, can the learned counsel for the Appellants seriously contend as he has done at page 9 paragraph 5.13 to page 10 paras. 5.14 – 5.16 of the Appellants’ Brief that there could not have been any other just cause for the default to appear other than non-awareness of the Suit and the Judgment delivered against the Appellants as purported by learned counsel?
I have already held the view that ordinarily, since there is no affidavit of substituted service on record, one would have been justified in holding that Appellants were not served. However, by the unchallenged averments in paragraphs 8-16 of the Respondent’s counter-affidavit, it is clear that the averments in paragraphs 4 – 8 of the 2nd Defendant/Judgment-Debtor/Appellant’s affidavit are spurious and capricious in that it has been disclosed that the Appellants were aware of the case and after substituted service pleaded with the Respondent to be sympathetic and given time to enable them supply the bus but for three years the Appellants continued in their filibustering vacillating tactics until the Respondent executed the Judgment in 2008.
The Appellants have therefore not shown any cause not to talk of a good cause why their application should be given any sympathetic consideration by the lower court or even this Court. Thus, there is no justifiable reason why the Appellants defaulted appearance or failed to file their Notice of Intention to Defend before the default Judgment was entered by the Court below.
On the second parameter, the learned counsel for the Appellants has submitted that the Appellants moved fast by bringing the application to set aside on 19/8/2009 which was the day the Defendants/Appellants became aware of the Judgment. Here again paragraphs 8, 9, 10, 11, 12 – 16 debunk the claim by the 2nd Appellant that it was only on the 19th August, 2008 that he was aware of the case which in the first place, is in conflict with the deposition in paragraph 4 of his affidavit to the effect that he knew as a fact that on 14/8/2008 at about 2.30pm he was in his shop at Lagos Road, Ilorin when all of a sudden he saw two Policemen and Bailiff from the Registry of the Honourable court come to distrain his Mazda 626 car.
Apart from the above conflicting deposition and submission, judgment in default was entered on the 28th of April, 2005, but it was not until the 19th of August, 2008 about three years later that he brought the application to set aside contrary to the mandatory provision of Order 17 Rule 11 that the application should be brought within six days of delivery of such judgment. Therefore, there was undue delay in bringing the application so as to prejudice the Respondent who had parted with his money since 2003 and was even sympathetic and merciful of the Appellant to the extent that the Respondent waited until 2008 before executing the Judgment. To oblige the Appellants the setting aside of the Judgment would be tantamount to a travesty of justice against the Respondent.
Closely connected with the undue and inordinate delay in bringing the application is the fact that the Respondent would have and still will be embarrassed if the Appellants’ application were to be granted. In fact an order of rehearing of the case would be most unconscionable and inequitable in that the Appellants who have not proffered any justifiable and fortifiable reason(s) for their absence in court in spite of being served and for not bringing the application to set aside as at when due, would be given an unfair advantage to continue to dilly-dally and play for time to the detriment of the Respondent who has parted with his hard earned money for about nine years now.
On the fourth criterion, from the totality of the averments of the Appellants in their affidavit in support of the motion to set aside, nothing has been said to cast any doubt on the case of the Respondent who has annexed the Receipts issued to him by the Appellants for the sum of N500,000.00. The Appellants have not denied that they received the said amount with a view to supplying the Respondent the Hiace Bus. They have also not tendered anything to show that the amount quoted by the Respondent as having been received by them is either smaller or that they had supplied the vehicle or refunded the said sum to the Respondent. From all indications therefore, it is crystal clear that the Appellants have no defence and not to talk of any good defence or good cause to warrant the grant of their application by the lower Court.
Thus, still on the fourth parameter for grant of the application, from my careful perusal and appraisal of the totality of the facts deposed to in the affidavit in support of their motion, it is manifestly clear that their case is unsupportable.
The learned trial Judge was therefore right to have held at page 43 of the Records that:
“Although he brought this application under Order 10 Rule 5 and Order 17 Rule 11 of the High Court (Civil Procedure) Rules, 2005, he neither stated a just cause for the default nor disclosed any defence let alone a good defence to bring the application properly under Order 17 Rule 11”; and his said finding was unassailable.
On the last parameter, having analyzed all the circumstances particularly the depositions in paragraphs 8 – 16 of the Respondent’s Counter-affidavit which have not been challenged but have been deemed admitted, the Appellants’ conduct throughout the proceedings that is, right from the service of the Writ upon them to the date of Judgment; has not been such as to make his application and indeed this appeal worthy of any sympathetic consideration. The finding of the learned trial Judge was therefore neither erroneous nor perverse and no miscarriage of justice was ever occasioned the Appellants. I rather hold the view that the finding was borne out of the totality of the affidavit evidence elicited by the parties and the surrounding circumstances of the case.
This Court can therefore not disturb the said finding as the cases of UBN PLC. V. Chimaeze (2007) ALL FWLR (Pt. 364 303 at 325 – 326 and Lamboyo Ltd. v. NNB PLC (2007) ALL FWLR (Pt. 365) 585 at 595; may have been decided rightly on their peculiar circumstances but have been certainly cited out of con herein. Accordingly, this issue is resolved against the Appellants.
ISSUE NUMBER 2 (TWO): Whether the Defendants/Appellants were denied fair hearing by the learned trial Judge in the course of the trial of the suit?
The learned counsel for the Appellant has relied on the argument on issue Number One to contend that even as reflected in page 15 of the record which is the affidavit of service, they were only aware of the proceedings on the 14th of August, 2008 when execution was levied in his business premises and that the Court acted without jurisdiction when it gave Judgment against the Appellants on the 28th of April, 2005 when in fact they were not aware of the pending proceedings.
He has cited A.P.C. Ltd. v. NDIC (Nig.) Universal Bank Ltd. (2006) ALL FWLR (Pt. 335) 1 at 51 per Onnoghen, JSC who rightly held that:
“A Court has no jurisdiction to give Judgment against a person who has not been served with a Writ of Summons. A person who has not been served with a Writ of Summons in a case in which Judgment was later given against him could not be said to have had a fair hearing.”
There is no doubt that the above dictum of the erudite Law Lord is the correct position of the law which we of this Division in Wing Commander A. Adamu v. Donatus F. Akukalia (2009) ALL FWLR (Pt. 428) 352 at 410, adopted in holding as we did that:-
“The right to be heard is one of the fundamental rights provided and enshrined in our Constitution. The right is as old as mankind. In other words, the rule of natural justice has been with us from creation. Even God Himself did not pass sentence upon Adam before he was called to enter his defence.”
The above decisions in the cases cited notwithstanding, this is a peculiar case where even though the affidavit of substituted service cannot be seen; this Court can presume from the surrounding circumstances of this case and having regard to the unchallenged averments in paragraphs 8-16 of the Respondent’s Counter-affidavit, that the Appellants were given the opportunity to defend themselves but they failed woefully to take advantage of this opportunity.
In the recent case of S & D Construction Company Ltd. v. Chief Bayo Ayoku & Anor (2011) ALL FWLR (Pt. 604) 1 at 22 paras. C – G; per Adekeye JSC; reemphasized the Constitutionality of the right to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. His Lordship also stressed on the essence of this right to the attainment of justice and enumerated the basic attributes of fair hearing which include:
1. The hearing of both sides on all material issues in contention, before reaching a decision which may be prejudicial to any of the parties in the case.
2. That the Court shall give equal treatment, opportunity and consideration to all concerned in the case.
3. That the proceedings be conducted in the full glare of the public and all concerned be informed of and should be accorded access to such venue of hearing; and
4. That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly be seen to have been done.
His Lordship added that the burden is on the party alleging breach of fair hearing (as in this case) to prove the breach and he must do so in the light of the facts of the case. See Maiko v. Itodo (2007) 7 NWLR (Pt.1034) 443; Usani v. Duke (2004) 7 NWLR (Pt.871) 116; (2005) ALL FWLR (Pt.244) 960; Fagbule v. Rodrigues (2002) 7 NWLR (Pt.762) 188; Adeniran v. NEPA (2002) 14 NWLR (Pt.786) 30; Bamigboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 and Awoniyi v. Registered Trustees the Rosicrucian Order (AMORC) (2000) FWLR (Pt.25) 1592.
In the instant case, although by their affidavit they had tried to show that there was no Affidavit of substituted service before Judgment was entered in default against them, the Respondent has successfully challenged that assertion and gone further to prove the contrary that the Appellants were indeed aware of the pending proceedings and asked for time to enable them supply the vehicle for which the sum of N500,000.00 was collected from the Respondent. The Respondent with a sympathetic and merciful spirit waited for three years before the Judgment could be executed. Thus, as was succinctly posited by Fabiyi, JSC, in his lead Judgment in the same case S & D Construction Co. Ltd. v. Ayoku (supra) at page 16 paragraph E; while relying on the cases of Omo v Judicial Service Commission Delta State (2000) FWLR (Pt 20) 676; (2000) 12 NWLR (Pt.682) 444 and Okoye v. Nigeria Construction Furniture Co. Ltd. (1999) 6 NWLR (Pt.1999) 501 at 541; “A party who had the opportunity of being heard but failed to utilize same, as herein, cannot complain of breach of fair hearing.” See also Akinduro v. Alaya (2007) ALL FWLR (Pt. 281) 1653 and Umaru v. Tunga (2010) ALL FWLR (Pt.607) 726 at 740; Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt.53) 678; Bill Construction Co. Ltd. v. Imani & Sons. Ltd. (2006) 19 NWLR (Pt.1013) 1 and Union Bank of Nigeria Plc. V. Aspra Builders (W.A.) Ltd. (2010) ALL FWLR (Pt.518) 865.
With the greatest respect to the learned counsel to the Appellants, the fair hearing principle should not only be applicable to the case of the Appellants but like the double edged sword that can cut both ways; the Respondent who had parted with his hard-earned and whopping sum of N500,000.00 (Five Hundred Thousand Naira) to the Appellants for the supply of a bus which for nine years now they have failed to so do without any just cause; should also be entitled to the benefit of fair hearing.
As we had said earlier, the discretion to set aside the default judgment of the Lower Court is/was equitable in nature and one of the noblest of the maxims of Equity is that he who comes to her must come with clean hands. The hands of the Appellants are smeared with the filth and stench of fraud if not criminality. Equity shall therefore not come to the aid of such Appellants with tainted hands.
Whereas in this case, the Appellants have not proffered any defence and indeed have none either on the facts and the law, they cannot hide under the cloak of that principle of fair hearing which has been prescribed per Alfa Belgore JSC (as he then was) in Magit v. Univeristy of Agric Markurdi (2006) 133 LRCN 46 at 51; as “not being a cut and dry principle which parties can in the abstract, always apply to their comfort and conveniences. It is a principle which is based on facts of the case before the Court. Only the facts of the case can influence and determine the application or inapplicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”
Needless to reiterate that from the facts of this case as was elicited before the lower Court and as can be gleaned from the Records herein, the principle of fair hearing sought to be invoked by the Appellant is helpless and dead and accordingly cannot be of any assistance to their frivolous and make believe appeal.
This Issue is also resolved in favour of the Respondent as I hold that there was no breach of the Appellants’ right to fair hearing. I refuse to heed the invitation to interfere with the Judgment of the lower Court but would rather affirm same and hereby dismiss the Appellants’ appeal for being unmeritorious.
I also abide and affirm the monetary awards made by the learned trial Judge in favour of the Claimant/ Respondent. I award N30,000.00 costs in favour of the Respondent against the Appellant.
TIJJANI ABDULLAHI, J.C.A.: I have read in draft the lead judgment of my learned brother Agube, J.C.A. just delivered.
His Lordship has considered and righty resolved all the live issues that call for determination in this appeal. The views expressed by learned Law Lord therein are in harmony with mine and I agree that for all the reasons given in the lead judgment, the appeal is completely devoid of any merit. I too dismiss it and abide by the order as to costs contained therein.
ITA G. MBABA, J.C.A.: I have had the privilege of reading the draft of this judgment, just delivered by my learned brother I.I. AGUBE, JCA. My lord has painstakingly and succinctly scrutinized all the issues involved in this appeal, admirably, even when the respondent, surprisingly, failed to file his brief. I agree completely with his reasoning and contusions
It is obvious that the appellants, who were crying foul and alleging that the lower court’s refusal to set aside the judgment, complained of, was a travesty of justice, were, in fact, themselves, neck deep in the vices they complained about. How did they compile the record of appeal to exclude the “proof of service” of the processes on them, which service was effected by substituted means?
The respondent had sought adjournments, repeatedly, to ensure that the Appellants were served, and he did not move the court for judgment, until he obtained an order to serve the appellants by pasting the processes at the appellants’ place of business/abode, after personal service became impossible.
Though the learned trial judge failed to make reference to the fact of that service in his judgment, while awarding the undefended claim to the Respondent, I have no doubt that the court was satisfied that Appellants had been served, as lack of service was what made the court to keep adjourning the case on the previous dates.
That fact of service was clearly brought up by the Respondent in his counter affidavit of 15th October, 2008, when he fought against the attempt by the Appellants to nullify the processes for levying execution of the judgment, and to set aside the judgment.
In paragraphs 5, 6, 7, 8, 9, 10 and 12 of the counter affidavit, the Respondent stated as follows:
‘5) That the bailiff of this Honourable Court thereafter sought to serve the defendants by direct service on several occasions, including 24th, 25th and 26th February, 2005, all to no avail.
6) That the said bailiff of this Honourable Court deposed to an affidavit of non-service to the defendant personally.
7) That thereafter the judgment/creditor/respondent prayed for an order of this Honourable court to serve the judgment/debtor/applicant by substitute means by way of ex-parte motion, dated 3rd March, 2005.
8) That this Honourable Court thereafter granted the motion and same was pasted on the last place of business /abode of the defendant at no 334, Opposite Ilorin City, Hall, Geri Alimi, Lagos Road, Ilorin, Kwara State.
9) That the proof of substituted service is in the records of this court.
10) That I also know as a fact that the judgment/debtor/applicant were served with the court processes, since service by substituted means is deemed as good and affective service.
12) That an affidavit of service was deposed to by the bailiff of this honourable court after the order of substituted service was complied with and there upon this honourable court gave judgment in favour of the claimant on 28/4/05″.
The Respondent, thereafter recounted in paragraphs 13, 14, and 15, the moves by the Appellants, pleading with him (respondent), to exercise patience and offering to still supply the vehicle, and that accounted for his not taking steps to execute the judgment until 2007. But surprisingly, after the judgment was executed, the Respondent, deposed as follows:
’16) That it is very confusing when after the judgment in this case was executed, the affidavit of service deposed to by the bailiff of this honourable court was missing from the court’s record.”
Of course, these weighty averments were not denied or rebutted by the appellants in a further affidavit. And the learned judge, Hon. Justice F.A.Gbadeyan, who also heard the respondent’s case on 28/4/2005 and made the award (who also was in a position to know of the facts of service of the original processes on the Appellants’) agreed with the latter depositions of the Respondents when he held.
The appellant (that is 1st appellant who took out the process to set aside the judgment) was served the court processes, as a last resort, by substituted means. Judgment was consequently entered in favour of the claimant. It was not until the execution of a writ of fifa on 14-8-08 that the applicants filed this application on 19-8-08. Curiously, the applicant used such words as “a travesty of Justice”, to describe some aspects of the proceedings. Although the applicant’s action portrays a barefaced blatant criminality, the applicant’s learned counsel Mr. Wale Obadofin did not help matters either he neither stated a just cause for the default nor disclosed any defence, let alone a good defence to bring the application properly under order 17 rule 11..”
That appears to unveil the suppressed anger or disgust of the trial judge over the pretences of the Appellant, which he observed portrayed “bare faced criminality.”
Of course, the judge was in a position to say so, having watched the ignoble antics of the applicant in the entire process. Such ignoble tendencies of the Appellants can still be seen in the compilation of the records of this appeal, which, surprisingly, brought forward the records relating to the execution of the judgment and the application by Appellants to set same aside, from pages 15 to 39 of the Records of Appeal (immediately after the motion ex-parte by the respondent to serve the defendants by substituted means), before reproducing the proceedings that even led to the judgment (on pages 40 and 41)! It almost gave impression that there was no judgment on which the execution was premised!
Also, there is no record to show how and when the motion to set aside the judgment and the execution was argued, before the ruling was delivered on 27/10/08. While such mixed-up, and omission of vital records took place, the proof of service had disappeared from the file, after the filing of the execution processes! This points to something ominous about the Appellant’s application and this Appeal.
Often times, some misguided persons, including lawyers in that group, think litigation/court process is a game of craft and intrigues, where the vile employs his guile to deceive the court, and gain advantage over his opponent, or where law is used to oppress and suppress the truth. That, of course, is far from the intention of the law, as the court is founded and built on the concept of right and justice, flowing, I think, from the Mind of the Divine. That is why practitioners, on this temple, must purge themselves of vile, and stay close to that divine mind, to help them decipher truth from falsehood, and have courage to apply the truth, revealed from evidence, to do justice in each situation, without fear or favour, affection of all will.
All the oaths/affirmations we make and all the sound lessons we receives in ethics, in the course of our training as lawyers, and even the daily swearing to oath/affirmation in court, as prelude to giving evidence, or depositions in affidavits, all point to this objective, to be true and honest in the discharge of our judicial and legal functions, and uphold truth and justice
It is true that service of process is fundamental to the court being vested with jurisdiction to entertain any suit. See the case of Mark vs. Eke (2004) 5 NWLR (Pt.865), held 4, where the Supreme Court said:
“….it is the service of the process of court on the Defendant that confers on the court the competence and jurisdiction to adjudicate on a matter, the service of process then becomes a condition precedent to the hearing of the Suit…” See also, Okoye vs Central Point Merchant Bank Ltd (2008) All AFLR (Pt.441) 810 at 824-825; ADC Ltd vs NDIC (Nig.) Universal Bank Ltd (2006) All FWLR (Pt.335), at 51.
But a party who plays prangs, to evade service or to avoid being served by the conventional way, cannot plead non-service of the process, if he is caught in the web, designed by the court to trap evasive defendants’ that is by substituted means, which by law is satisfactory that is, by substituted means, which by law is satisfactory service of court process.
For this reason, and the more elaborate reasons, articulated in the lead judgment by my learned brother, I. I. Agube, JCA, I, too, dismiss the appeal, for lacking in merit.
I abide by the consequential orders in the lead judgment.
Appearances
Joseph Oboite Esq.For Appellant
AND
Respondent did not appear and was unrepresented throughout the hearing of the Appeal.For Respondent
