ELEMA v. AGHAMA & ORS
(2022)LCN/16467(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Monday, May 09, 2022
CA/B/427/2017
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
MOSHEDI ELEMA APPELANT(S)
And
1. CHRISTOPHER AGHAMA 2. BECKTS FUFEYIN 3. EVANG. FLORENCE OTANIYEN 4. IDAHOR (MRS.) 5. MR. IDAHOR LAWRENCE ETINOSA RESPONDENT(S)
RATIO:
NON SERVICE OF A FINAL WRITTEN ADDRESS IS A DENIAL OF FAIR HEARING
In particular reference to the claimant’s written address filed on 9/12/2015, it is submitted that service was at large. That the house number or address upon which the processes were served is not contained in the face of the affidavit of service. By way of emphasis, it was further submitted that the non-service of the claimant’s final written address on the appellant is fundamental as it is adenial of fair hearing. The Court is referred to the case of Idahosa v. Deg-Asia (Nig.) Co. Ltd (supra), and the case of State v. Yanga (2021) 5 NWLR (Pt. 1769) 375 at 396, para D. In further submission, it is contended that the affidavit of service at page 124W of the additional record of appeal which is at large cannot constitute notice or proper service. Such a service, counsel submits was held to be nebulous in the Deg-Asia’s case, Pointing out other defects in service, it was submitted that the appellant was shut out from being heard. Relies on the case of A. G. Rivers State v. Ude& 12 Ors (2006) 6 – 7 SC 131. JAMES GAMBO ABUNDAGA, J.C.A.
THE SETTLED LAW THAT AN AFFIDAVIT OF SERVICES PRIMA FACIE EVIDENCE OF SERVICE
It is submitted that it is settled law that an affidavit of service is prima facie evidence of service. That the affidavit of service deposed to by the bailiff on 29th October, 2008 at page 124E of the Supplementary record has not been controverted by the appellant since the only known and acceptable way of challenging service in law is by filing a counter-affidavit deposed to personally by the party concerned rebutting the presumption of service. That there is no such affidavit of rebuttal in this case. That what is obtainable in this case is counsel’s submission. The Court is urged to hold that there is no rebuttal of the presumption of service in this case. Counsel relies for this argument on the case of Mgbenwelu v. Olumba (2017) 5 NWLR (Pt. 1558) 169 at 201 – 202. Other cases cited are: Fatokun v. Somade (2003) 1 NWLR (Pt. 802) 431 at 447, Uko v. Ekpenyong (2006) 5 NWLR (Pt. 972) 70 at 98, Prince Ajibola v. Sogeke (2002) FWLR (Pt. 93) 1989 at 2000 (CA). JAMES GAMBO ABUNDAGA, J.C.A.
THE CONTENT OF AN AFFIDAVIT CAN ONLY CHALLENGED BY A COUNTER AFFIDAVIT
The position of the law is well settled that the content of an affidavit can only be challenged by a counter-affidavit. See MGBENWELU v. OLUMBA(2016) LPELR-42811 (SC); MOHAMMED & ANOR v. EKASA & ANOR (2022) LPELR-57133 (CA). Thus, an affidavit of service can only be challenged by a counter-affidavit. In fact, an affidavit of service is said to be prima facie evidence of service. In the instant case, the Appellant did not file any affidavit to challenge the bailiff’s affidavit of service. UCHECHUKWU ONYEMENAM, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Edo State High Court, sitting at Benin City, in Suit No. B/430/08 delivered by Hon. Justice A. Edodo-Eruaga on 27/4/2016. The appellant who was the 1st respondent in the suit at the trial Court is aggrieved with the judgment on the ground that he was denied fair hearing in that he was not served with the originating and other processes that would have enabled him to defend the case against him. He therefore filed a notice of appeal on 26/7/16. He subsequently sought and obtained leave of this Court to amend the notice of appeal. Pursuant to the grant of leave afore stated, the appellant filed his amended notice of appeal on 25/11/2021. It was deemed properly filed and served on 19/01/22. The amended notice of appeal contains four grounds of appeal. The grounds of appeal shorn of the particulars are as herein below reproduced:
“GROUNDS OF APPEAL
GROUND ONE
The judgment is against the weight of evidence.
GROUND TWO
The learned trial Judge erred in law in not observing the dictates of fair hearing and affording the appellant the opportunity to be heard.
GROUND THREE
The learned trial Judge erred in law when she held that: “for the trespass on the claimant’s land I award him N4,000,000.00 (Four Million Naira) only as general damages”.
GROUND FOUR
The learned trial Judge erred in law when he assumed jurisdiction to entertain this matter when there was no proof of service/proper services of the writ of summons and other processes on the appellant.”
In brief, the facts leading to this appeal are as follows:
The 1st respondent at the lower Court filed a claim in which he claimed declaratory and injunctive orders and special and general damages against the appellant and 2nd – 4th respondents. Unable to serve the appellant with the originating and other processes, he sought and obtained leave of Court for substituted service by pasting on the wall of the appellant’s last place of abode. The processes were accordingly served but at the resumed hearing of the suit, the learned trial Judge on being satisfied that service was effected as ordered proceeded with the matter, and at the close of hearing, the parties present addressed the Court but not before the appellant was served once again. Thereafter, judgment was entered against the defendants (that is, the appellant and 2nd – 4th respondents).
The grouse of the appellant is that he was not served the processes at the place and the manner ordered by the trial Court.
The record of appeal was transmitted on 8/6/18, and deemed properly compiled and transmitted on 7/2/19. A supplementary record was also compiled and transmitted. This was followed by the filing of the appellant’s brief of argument, settled by Solomon Odiase on 25/11/2021, and deemed properly filed and served on 19/1/22. The 1st respondent filed his brief of argument, settled by P. O. Osemwenkha on 3/12/2021, and deemed properly filed and served on 19/1/22. The appellant filed a reply brief of argument on 02/02/2022. The briefs of argument were adopted at the hearing of the appeal on 01/03/2022.
Two issues were crafted for determination in the appellant’s brief of argument. The issues are:
“(1) Whether the appellant was afforded the opportunity of being heard at the trial of this action.
(2) Whether the lower Court had the jurisdiction to entertain this action in the absence of proper service.”
SUBMISSIONS ON THE ISSUES
ISSUE ONE
Whether the appellant was afforded the opportunity of being heard at the trial of this action.
It is argued by appellant’s counsel that the 1st respondent did not serve the appellant the originating processes in this case. That what the 1st respondent prayed for in his motion exparte was that the appellant be served by “pasting the same at the wall of his usual or last known place of abode called No. 11 UwadiaElema Street, off Gapiona Street, GRA, Benin City”.
The Court is referred to pages 124B, 124C, 124F and 124G of the additional record of appeal.
Rather than serve the processes at the address ordered, it is submitted that the bailiff proceeded to another address where he served the processes. That while the Court ordered services by pasting on the wall of No. 11, Uwadia Elema Street, Off Gapiona Street, GRA, Benin City, the bailiff swore to an affidavit that he effected service at the entrance at No. 11, Uwadia Street, Off Gapiona Street, GRA, Benin City. It is argued that no order was made that the processes be pasted on the entrance of the appellant’s last place of abode or usual place of abode, if it is conceded that the appellant live in that address (a concession that counsel did not make).
It is further argued that it has not been proved that where the processes were served as deposed to in the affidavit of the bailiff is where the appellant lived. Counsel therefore submitted that there was a fundamental breach of the order of the trial Court, and therefore all the steps taken thereafter amounted to a nullity. Counsel relies on the case of Idahosa v. Deg-Asia (Nig.) Co. Ltd. (2016) All FWLR (Pt.830) P. 1325 at 1339 para B.
Counsel further submitted that the failure to properly serve the processes as ordered by the Court is not a mere irregularity but a fundamental default which renders the entire proceedings a nullity. Reliance is placed on the case of Okoye & Anor v. Center Point Merchant Bank Ltd. (2008) 7 – 12 SC 1.
ISSUE TWO
Whether the lower Court had the jurisdiction to entertain this action in the absence of proper service.
The arguments proffered on this issue are substantially the same as those proffered on issue one. A repetition of the same arguments is unnecessary. However, I shall highlight additional submissions.
Counsel referred the Court to the affidavit of service and the contents of which counsel submitted is not clear as to whether the processes were delivered personally, by substitution or by pasting. He refers the Court to the proof of service on which the Court acted at page 124E of the additional record of appeal. That the deficiency in the service of the processes and the learned trial Judge’s reliance on the affidavit to the fact that there was proper service shut out the appellant from the proceedings.
It was further contended by the appellant that service of originating process is a fundamental condition precedent to the Court’s jurisdiction because any judgment or order given without service robs the Court of jurisdiction and is therefore null and void. Cases relied on are – Idahosa v. Deg-Asia (Nig.) Co. Ltd (2016) All FWLR (Pt. 830) P. 1325 at 1346, and FBN Plc v. T.S.A. Industries Ltd. (2010) All FWLR (supra). Submitted further that the affidavit of service at page 124E of the additional record of appeal created doubt, suspicion and confusion, and that the lower Court ought notto have relied upon it to deprive the appellant a fair hearing or trial as guaranteed by the Constitution.
It is also additionally argued that the bailiff deposed to the fact that he did not know the house before that day but failed to point out who showed him the house where he delivered the processes at the entrance of the house. That doubt is therefore created, which doubt ought to have been resolved in favour of the appellant. Counsel refers to other affidavits of service of other processes at pages 124Q – 124W of the additional record of appeal and submitted that those affidavits created more doubts as to who, when and where they were served. That those affidavits did not indicate on its face that the processes were pasted as ordered by the Court.
In particular reference to the claimant’s written address filed on 9/12/2015, it is submitted that service was at large. That the house number or address upon which the processes were served is not contained in the face of the affidavit of service. By way of emphasis, it was further submitted that the non-service of the claimant’s final written address on the appellant is fundamental as it is adenial of fair hearing. The Court is referred to the case of Idahosa v. Deg-Asia (Nig.) Co. Ltd (supra), and the case of State v. Yanga (2021) 5 NWLR (Pt. 1769) 375 at 396, para D. In further submission, it is contended that the affidavit of service at page 124W of the additional record of appeal which is at large cannot constitute notice or proper service. Such a service, counsel submits was held to be nebulous in the Deg-Asia’s case, Pointing out other defects in service, it was submitted that the appellant was shut out from being heard. Relies on the case of A. G. Rivers State v. Ude & 12 Ors (2006) 6 – 7 SC 131.
The Court is therefore urged to allow the appeal and to set aside the judgment.
On the part of the 1st respondent, two issues were also submitted for determination. They are:
“(1) Whether there was valid service of the originating processes and other Court processes on the appellant in due compliance with the order of substituted service made by the trial Court. (Distilled from Grounds 1 and 2).
(2) Whether from the printed record the appellant was duly served with the processes of Court so as to confer jurisdiction on the lower Court to entertain the suit against the appellant. (Distilled from Ground 4).”
SUBMISSIONS ON THE ISSUES
ISSUE ONE
Whether there was valid service of the originating processes and other Court processes on the appellant in due compliance with the order of substituted service made by the trial Court.
It is submitted that in law an affidavit of service deposed to by the bailiff of the Court is prima facie proof of service and raises a rebuttable presumption of regularity that the party was duly served with all the processes as stated in the affidavit of service – Afribank (Nig.) Plc v. Yelwa (2011) 12 NWLR (Pt. 1261) 286 at 305 is relied on. It was pointed out that service by pasting at the entrance of the house known and called No. 11 Uwadia Street, Off Gapiona Street, GRA, Benin City is good and effective service in compliance with the order of the Court. The reasoning of counsel is that the “entrance” of the building is very well part of the wall of the house and there is no difference between both. That entrance is embedded in the wall of the premises.
It is submitted that it is settled law that an affidavit of serviceis prima facie evidence of service. That the affidavit of service deposed to by the bailiff on 29th October, 2008 at page 124E of the Supplementary record has not been controverted by the appellant since the only known and acceptable way of challenging service in law is by filing a counter-affidavit deposed to personally by the party concerned rebutting the presumption of service. That there is no such affidavit of rebuttal in this case. That what is obtainable in this case is counsel’s submission. The Court is urged to hold that there is no rebuttal of the presumption of service in this case. Counsel relies for this argument on the case of Mgbenwelu v. Olumba (2017) 5 NWLR (Pt. 1558) 169 at 201 – 202. Other cases cited are: Fatokun v. Somade (2003) 1 NWLR (Pt. 802) 431 at 447, Uko v. Ekpenyong (2006) 5 NWLR (Pt. 972) 70 at 98, Prince Ajibola v. Sogeke (2002) FWLR (Pt. 93) 1989 at 2000 (CA).
Counsel therefore submitted that the distinction drawn between pasting on the “entrance” and on the “wall” is an attempt to make a distinction without a difference. Also submitted is that the argument that service on the appellant at No. 11 Uwadiae Street, offGapiona Street, GRA, Benin City, is not the same thing as service at No. 11 Uwadia Elema Street, Off Gapiona Street, GRA, Benin City, is tendentious and misleading since there is no affidavit evidence that the former is different from the latter. That the argument as to the differences goes to no issue when in law the address of counsel cannot take the place of evidence on record. Relied on is the case of NEW (NIG) BANK PLC v. OWIE (2011) 5 NWLR (Pt. 1240), Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111.
Convinced that the submission of appellant’s counsel is rooted in technicality, the Court is referred to the case of Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 255.
In regards to the appellant’s counsel’s contention that the appellant was not afforded the opportunity of being heard, it was submitted that fair hearing is an issue of substance. That the appellant deliberately evaded service and cannot be hard to complain of non-service and fair hearing. Counsel relied on the case of Adebayo v. A. G. Ogun State (2008) 20 WRN 1 at 18 – 19.
ISSUE TWO
Whether from the printed record the appellant was duly served with the processes of Court so as to confer jurisdiction on the lower Court to entertain the suit against the appellant.
It is submitted that the affidavit of service provides the best proof of service. The case of Onwubuya v. Ikegbunam (2019) 16 NWLR (Pt.1687) 94 at 111 is cited to the Court in support of counsel’s submission. Submitted that page 124E of the Supplementary record shows that the appellant was served at the entrance of No. 11, Uwadia Street, off Gapiona Street, GRA, Benin City, with the following processes; writ of summons, statement of claim, motion on notice with affidavit and civil Forms 48/49 enrolment order. The service of these processes, counsel submits puts a lie to the submission of the appellant.
Counsel proceeded to further submit that the settled position of the law is that a defendant who intends to challenge the affidavit of service deposed to by the bailiff has to kick-start the process by personally denying the service and detailing specific facts in an affidavit, then it will be for the Court to determine whether or not the party was served. The case of Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274 at 349 – 350 was cited to the Court. Further referred to is the case of Mgbenwelu v. Olumba (2017) 5 NWLR (supra) 169 at 201 – 202, and the case of Schroeder v. Major (1989) 2 NWLR (Pt. 101) at 111.
The Court is urged to resolve the issues in favour of the respondent and to dismiss the appeal.
REPLY BRIEF
Appellant’s counsel replies to the 1st respondent’s counsel’s submission that the affidavit of service raises a rebuttable presumption that there was service. Counsel submits that the rebuttable presumption which the affidavit of service raises is not only on where the processes were pasted but whether No. 11 Uwadia Street, GRA, Benin City is one and the same as No. 11 Uwadia Elema Street, off Gapiona Street, GRA, Benin City. That the affidavit of service is silent on the issue.
On the submission of the 1st respondent that the position of the law is that to challenge an affidavit of service, what is needed to be done was to file an affidavit denying service with particulars, appellant’s counsel submitted that the case relied on – Mgbenwelu’s case (supra) is not on all fours with the instant case in that in Mgbenwelu’s case, the issue of service arose during trial of the case and not after judgment had been delivered by the Court as in the instant case.
He also distinguished the case of Idahosa v. Deg-Asia (supra) from the instant case in that there was a valid appeal against jurisdiction based on non-service.
The Court is therefore urged to discountenance the submission of 1st respondent’s counsel.
The two issues formulated by the parties are substantially the same in content and effect. The difference is only on choice of how they were crafted. The issues to my mind, with due respect were unnecessarily split into two because, once the Court comes to the conclusion that there was no service, the next question is to consider what the legal consequences shall be.
In other words, the issue of service and jurisdiction are inextricably interwoven, therefore I frame for determination of this appeal the following sole issue:
“Whether the non-service of the originating process and other processes did not rob the trial Court the jurisdiction to hear and deliver judgment in this case.”
It is not in dispute between the two parties that the trial Court granted an order that the 1st respondent be served by substituted means.
Page 124B of the supplementary record of appeal contains the prayers sought for by the 1st respondent in his motion paper. Therein he prayed for the following relief:
“An order of Court for substituted service of the writ of summons, and all other Court processes in this suit on the 1st defendant by pasting the same at the wall of his usual or last place of abode called No. 11, Uwadia Elema Street, Off Gapiona Street, GRA, Benin City.”
At page 149g of the supplementary record, the learned trial Judge in granting the motion for substituted service, ordered as follows:-
“Ordered as prayed. The plaintiff/applicant is granted leave to serve the writ of summons and other Court processes in this case on the 1st defendant by substituted service, to wit, pasting same on the wall of his usual or last known place of abode called No. 11, Uwadia Elema Street, Off Gapiona Street, GRA, Benin City and it shall be regarded as good service.”
It is common ground between the parties that the appellant who was the 1st defendant at the lower Court did not file an affidavit to challenge the affidavit of service filed by the bailiff of the Court that he effected service of the Court processes at the address and in the manner ordered by the Court. However, he made the issue grounds two and four of his amended notice of appeal. The two grounds of appeal deal with non-service, lack of proper service of the originating and other processes in this case on the appellant which must be contrasted with the situation at hand in which the bailiff of the Court deposed to series of affidavits of service at every stage of the case, of the respective processes on the appellant. Service of Court process is a matter of fact, which fact can only be disproved by facts to the contrary. In this case, the settled position of the law is that where there is a challenge to service of an originating process the affidavit of service deposed to by the Court bailiff is prima facie evidence of such service. It is not conclusive proof however, it raises a presumption that is rebuttable by credible evidence to the contrary:- Mgbenwelu v. Olumba (2016) LPELR-42811 (SC) pp. 37 – 39 paras E- D. See also Top services Ltd. v. Artee Industries Ltd. (2014) LPELR-23268 (CA) Pp. 21 – 23 para F. In the case of Top Services Ltd v. Artee Industries Ltd(supra), it was inter alia held:
“Ordinarily, there is a presumption in favour of official acts which are deemed to have been properly done. The way of challenge or rebutting the presumption of such service by the party concerned is by filing of a counter affidavit to controvert the affidavit of service. The failure of the appellant to file such a counter affidavit is fatal to his case and his oral argument on the hearing date that he was not served with the motion and other processes in the suit cannot avail him…”
Learned counsel to the appellant in his reply brief submitted that Mgbenwelu’s case is not applicable to this case in that in Mgbenwelu’s case, the issue of service was raised during trial of the case and not after judgment had been delivered as in this appeal.
This argument of counsel does not attract me. Facts are sacred. What the appellant ought to have done first and foremost in discovering that the judgment was delivered against him based on the affidavit of service sworn to by the bailiff was to approach the Court with an application for an order setting aside the judgment, supported with an affidavit in which he would challenge the affidavit of service sworn to by the bailiff. If the Court was convinced, it could set aside the judgment but if he was overruled and the application dismissed, the appeal to this Court would dwell on the facts contained in his supporting affidavit, after all there is a window under the law for setting aside a judgment of a Court’s own judgment when it was proved before the Court that there was either non-service or improper service of the originating process or other important process on a party affected by the judgment.
The point which is sacrosanct is that where the complaint borders on falsity or otherwise of an affidavit of service, the issue can only be confronted head on by an affidavit challenging the affidavit of service and must condescend on facts that will convince the Court that indeed the party was either not served or there are cloudy circumstances surrounding the issue of service. The oral submission of counsel however powerful cannot do it.
Counsel to the appellant appears to be blowing hot and cold at the same time. In one breadth he suggests that he was not served. In another he suggests that service was not done in the manner ordered by the Court.
I shall consider the different planks on which he wants the Court to hold that he was not served.
The first is that, whereas it was ordered that service be effected by pasting at the wall of his usual or last known place of abode called No. 11, Uwadia Elema Street, Off Gapiona Street, GRA, Benin City, the bailiff proceeded to another address and served the process. According to him the bailiff deposed to his affidavit of service that he pasted the processes at the “entrance” of No. 11, Uwadia Street, Off Gapiona Street, GRA, Benin City, whereas he was ordered to be served by pasting on the wall. That service as effected at the entrance, counsel submits, amounts to a contravention of the order of Court.
The 1st respondent’s counsel’s response is that the argument is at best a sophist and a desperate but feeble attempt to make a distinction without a difference as a wall constitutes part of an entrance of the building. I find this submission captivating, and an appropriate response to appellant’s submission which I must add is hollow. Would he prefer the processes to be pasted, say at a wall behind that premises? Can anyone go into a house through any passage other than the entrance? To my mind, it will be sheer stupidity for a bailiff who is ordered to effect service by pasting at the wall of a premise not to direct the pasting to the entrance of the premises.
I have taken another critical look at page 124E of the supplementary record which contains the affidavit of service in contention. Does the appellant’s counsel really believe that he can get away with this argument? I would rather want to believe that he is playing a gamble in the hope that this Court might be unwise to fall for this kind of fanciful and technical argument. I am not in the least impressed.
Next is appellant’s counsel’s argument that Uwadiae Street, Off Gapiona Street, GRA, Benin City, where the processes were served by pasting on the entrance of the house as contained in the affidavit of service has not been proven to be one and the same as No. 11, Uwadia Elema Street, GRA, Benin City, the house at which the lower Court ordered the writ of summons and other processes be pasted.
1st respondent’s counsel’s reply to the appellant’s submission is that it is tendentious and misleading since there is no affidavit of service that they are not the same.
Appellant’s counsel’s argument propelled me to take a further look at the affidavit of service at page 124E of the supplementary record of appeal.
First thing I observed is that either by inadvertence or design, the bailiff omitted to add No. 11 to the street name. In my keen observation, the only difference, which I hold to be infinitesimal, is the omission of the name “Elema” in the bailiff’s affidavit.
The bailiff is an official of the High Court (the trial Court) which made the order of substituted service that the bailiff was ordered with the enrolled order to effect service. He went and did it and swore to an affidavit which is what is contained at page 124E of the supplementary record of appeal. This brings to relevance the provision of Section 168(1) of the Evidence Act 2011, which is that:
“When any judicial or official act is shown in a manner substantially regular, it is presumed that formal requisite for its validity were complied with”. I refer to the case of Nigeria Air Force v. James (2002) LPELR-3191 (SC) for support on the applicability of Section 168 (1) of the Evidence Act, 2011 to this issue. In Nigeria Air Force v. James (supra) it was held:
“A presumption of regularity applies, as in the case in hand, where there is no evidence to the contrary and things are presumed to have been rightly and properly done. This is expressed in the common law maxim in the latin phrase – omnia praesumuntur rite esse acta. This type of presumption is very commonly resorted to and applied especially with respect to official acts.” See Ogbuanyinya v. Okudo (No.2) (1990) 4 NWLR (Pt. 146) 551 at 570 paragraphs D – E.” Per ONU, JSC(Pp. 15-16, paras. F-B)
See also Ogunye & Ors v. The State (1999) LPELR (SC) p. 22 paras D – F, John v. Unilorin (2012) LPELR – 9309 (CA) P. 34 paras A – C.
The appellant did not file a counter affidavit or affidavit as the case may be, to show that No. 11 Uwadia Street, Off Gapiona Street, GRAF Benin City, is different from No. 11 Uwadia Elema Street, Off Gapiona Street, GRA, Benin City. Therefore, the Court is entitled to invoke the presumption in Section 168 (1) of the Evidence Act that service was effected in this case at the address ordered by the Court.
The appellant also contended that on its face, the affidavit is not clear as to whether the processes were delivered personally or by substitution or by pasting. This is an argument that speaks volume of the desperation to hoodwink this Court into doing his bidding even in the absence of substance. On the face of the affidavit of service at page 124E, is “I Mr… (chief bailiff) attached to High Court 2 make oath and state that on 29th day of Oct. 2008, at the hour of 3.30pm O’clock, I served upon 1st defendant/respondent Mr. Moshedi Elema by pasting.”
Counsel has no eyes to see this. What he could only see clearly, to my surprise down the affidavit is where it is written “issued out of this Court at the instance of the plaintiff/applicant by delivery the same personally/by substitution in the entrance/pasting…” The submission of counsel is contrary to common sense when it is clear from the record that service could not be personally effected which informed why the claimant (1st respondent) resorted to application for substitution that was granted, and which service the bailiff went to effect. Evidently, the presumption under Section 168 (1) of the Evidence Act, 2011 applies here.
The appellant’s complaint against the affidavit of service is also that the deponent deposed that he did not know the house before that day but failed to point out who showed him the house before he delivered the processes at the entrance of the house. That this also constituted another doubt which ought to have been resolved in favour of the appellant. Counsel was not specific as to which of the affidavits the bailiff so deposed, so I take it that the complaint is in respect of all the affidavits. I will therefore pick one of them to consider the merit of this complaint. I accordingly pick the affidavit at page 124E. The affidavit states that the enrolment order the bailiff went to serve was at the instance of the plaintiff/applicant. The presumption in Section 168 (1) of the Evidence Act, 2011 applies to save any doubt that may be entertained. But should there really be any doubt? Is it not the practice of the Court that for originating process which must be served personally on the defendant, it is the person at whose instance the action was filed that serves as pointer? Being a judicial or official act, the fact that the affidavit contains a statement that the enrolment order was obtained at the instance of the plaintiff is sufficient to invoke the provision of Section 168 (1) of the Evidence Act, 2011, to clear any doubt as to who pointed to the bailiff the house at which he effected service of the processes. This argument cannot save the appellant.
The appellant made heavy weather on the affidavit at page 124W in respect of service of the claimant’s written address that was filed on 9/12/15. He submits that the service was at an address at large because the street number, No. 11 is not indicated. Indeed there is such an omission. But shorn of technicality, should this be an issue when the service of the claimant’s written address was almost the last in the series of processes that were served by this same bailiff in this matter? This is nothing but finding shelter under unnecessary employment of technicality, the type I believe that attracted the condemnation of the apex Court in the case of Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 255, in the following words:
“Let me explain. By its current mood, it is safe to assert that this Court has, firmly and irreversibly, spurned the old practice where the temple of justice was converted to a forensic abattoir where legal practitioners, employing such tools of their trade “like the whirligig of technicalities,” daily butchered substantive issues in Courts in their ‘fencing game” in which parties engage(d) themselves in an exercise of outsmarting each other,’ Afolabi v. Adekunle (1983) 2 SCNLR 141, 150. Those days are gone: for good!”
Let it be known to the appellant that this Court will not allow technicality to stand in the way of doing substantial justice. If the appellant strongly believes that the bailiff lied under oath in order to block him from access to justice by deliberately refusing to serve these processes on him, he should have employed a procedure at the trial Court by which he could put across hard facts to controvert or contradict the averments in the bailiff’s affidavits of service which would have enabled the Court to weigh the facts deposed to in their affidavits on the imaginary scale of justice, and if need be, call oral evidence.
Counsel cannot expect the Court to decide the fate of facts deposed toin an affidavit by his oral submissions, however scintillating they may be. This Court must resist that temptation as dangled by the appellant’s counsel.
The appellant extended his complaints to processes that were issued on 23/5/2014, 4/6/14, and processes either issued or filed on 9/9/15, 13/10/15 and 15/10/15.
The affidavits of service in respect of these processes are contained on pages 124Q – 124V of the supplementary record. It was submitted that these processes were all alleged to have been pasted. That it is not indicated on the face of the affidavits the place the processes were pasted in compliance with the order of the Court to enable the lower Court to come to the conclusion that the appellant was actually aware of the suit to enable it assume jurisdiction or to continue to assume jurisdiction to entertain the case. The lower Court believed that the processes were served in compliance with its order and arrived at its conclusion based on the deposition in these affidavits.
It was therefore incumbent upon the appellant to controvert those averments through a process before the trial Court to show that the processes wereindeed not served in compliance with the enrolled order of the Court. But the appellant failed to do that. Even in this Court, there is no such evidence upon which this Court can find otherwise. Therefore, I adopt my resolution in respect of affidavit of service earlier considered to the affidavits of service now complained of.
Now in summary, I shall refer to paragraph 2.04 of the appellant’s brief of argument wherein he stated under the subtitle “statement of facts”:
“The appellant becoming aware of the judgment applied to the lower Court to stay the execution of the judgment as he claimed he was not aware of the pendency of the action moreso as he has never lived at No. 11, UwadiaElema Street, Off Gapiona Street, GRA, Benin City, the place upon which the originating processes in this case were served.”
The questions that beg for answers are: If he does not live at that address, how did he become aware of the judgment? Where does he infact live? Shouldn’t he have applied to the lower Court through an application supported by affidavit to state all the facts that will convince the Court that he does not live at the address where theprocesses were served and to satisfy the Court as to how he became aware of the judgment with a view to having the judgment set aside?
Counsel should be very well aware that non-service of process is one of the solid grounds upon which a Court can set aside its own judgment. It is one of the recognized exceptions to the trite law that a Judge becomes functus officio after judgment. Why did the appellant not explore that window instead of coming to this Court through the medium of an appeal with no facts to contradict or controvert the affidavits of service sworn to and filed by the bailiff, to ask this Court to set aside the judgment of the trial Court on the ground that service of the originating and other processes were not effected on him?
To conclude, I hereby resolve the sole issue against the appellant. This appeal is therefore devoid of merit, and is hereby dismissed.
I make no order as to costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading before now the draft of the lead judgment just delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA.
I adopt the reasoning and conclusion reached in dismissing theappeal. While I also dismiss the appeal, I shall chip in few words in support of the lead judgment.
As regards issue one, the question for determination is whether the Appellant was afforded the opportunity of being heard at the trial Court. Fair hearing is not an expression of mere rhetoric or empty verbalism but a fundamental right constitutionally guaranteed, a breach of which the proceeding will be nullified. See OKEKE v. UWAECHINA (2022) LPELR-57291 (SC), AKINLADE v. STATE (2022) LPELR-57003 (SC) AND MUYIDEEN v. NBA & ANOR (2021) LPELR-55885 (SC). It is not enough for a party to just allege breach of fair hearing. A party contending breach of fair hearing must do more to prove that the same was indeed breached.
The Appellant herein alleges that his right to fair hearing was breached by the failure of the Respondent to serve him with the originating process. It is worthy to state that an affidavit of service was deposed to by a Court bailiff who effected the service of the originating summons.
The position of the law is well settled that the content of an affidavit can only be challenged by a counter-affidavit. See MGBENWELU v. OLUMBA(2016) LPELR-42811 (SC); MOHAMMED & ANOR v. EKASA & ANOR (2022) LPELR-57133 (CA). Thus, an affidavit of service can only be challenged by a counter-affidavit. In fact, an affidavit of service is said to be prima facie evidence of service. In the instant case, the Appellant did not file any affidavit to challenge the bailiff’s affidavit of service.
For these reasons, and the more detailed reasons in the lead judgment, I also dismiss this appeal and uphold the judgment of the High Court of Edo State delivered on 27th April, 2016 by A. Edodo-Eruaga, J. in Suit No. B/430/08.
ADEMOLA SAMUEL BOLA, J.C.A.: My brother, JAMES GAMBO ABUNDAGA, JCA. afforded me the privilege of reading in draft the judgment just delivered by him. I adopt his reasoning and conclusion as embodied in the judgment. I have nothing to add.
I also hold that this appeal lacks merit and it is accordingly dismissed.
I abide by the order made as to costs.
Appearances:
Solomon Odiase For Appellant(s)
P. O. Osemwenkha, with him, E. Otutu For Respondent(s)