GOLDEN SWAN NIGERIA v. UNICONTROL HANDLING SERVICES NIGERIA LIMITED
(2018)LCN/12287(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of November, 2018
CA/L/415/2015
RATIO
COURT AND PROCEDURE: SERVICE OF PROCESS
“Service of process where required is fundamental as it is a condition precedent that vests the Court with jurisdiction to entertain the matter before it. Being constitutional in the sense that it affects fair hearing under Section 36(1) of the 1999 Constitution and jurisdictional it must be determined first, once challenged vide Ahmed v. Ahmed (2013) 15 NWLR (pt. 1377) 274 following the cases of Obimonure v. Erinosho (1966) 1 ALL NLR 250, Haruna v. Ladeinde (1987) 4 NWLR (pt. 67) 941, Okesuji v. Lawal (1991) 1 NWLR (pt. 170) 661. See also the cases (supra) cited by the appellant on the point. The affidavit of service deposed to by the process server (bailiff) in Exhibits SFC and SFC 1 is prima facie evidence of service, but it is not conclusive proof of service of process vide Ahmed v. Ahmed (supra).” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
GOLDEN SWAN NIGERIA Appellant(s)
AND
UNICONTROL HANDLING SERVICES (NIG.) LTD Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the decision of the High Court of Justice of Lagos State (the Court below) whereby it refused to set aside its judgment notwithstanding the facts and documents established failure of service of the writ of summons and other originating processes as well as the motion for judgment on the appellant coupled with fatal defects in the originating process which divested the Court below of the jurisdiction to entertain the action.
In a nutshell, the respondent filed an action by writ of summons and statement of claim together with other frontloaded documents claiming sundry sums of money for breach of contract.
According to the appellant it was not served the originating process and other processes in the action. Default judgment was entered against the appellant. It was at garnishee stage that the appellant became aware of the default judgment. The appellant applied for it to be set aside. The Court below dismissed the application. The appellant was not satisfied with the decision of the Court below dismissing the application.
The appellant filed a notice of appeal with three grounds of appeal against the said decision. The appellant filed a brief of argument on 21.09.16, in which it was contended that the bailiff?s affidavit of service was vehemently challenged by the affidavit of the appellant in support of the application to set aside the decision of the Court below which was not countered by the respondent in its counter affidavit on the assertion by the appellant that no hearing notice was issued and served on it before the case was heard and judgment in default entered by the Court below against it; that Exhibit C06, the notice of situation of the registered office of the appellant, showed its registered office is at No. 16 Karimu Kotun Street, Victoria Island Lagos, not Langbasa village as claimed by the respondent in the affidavit in support of the motion for judgment; that the affidavit of service, Exhibit SFCI, which the Court below relied on as service of hearing notice on the appellant and motion for judgment did not contain service of hearing notice, service of originating process and/other processes and that hearing notice being fundamental, the failure to serve the appellant before judgment was entered against it is fatal and that there being serious conflict in the affidavit evidence on the issue of service of the originating processes and hearing notice the Court below should have taken oral evidence to resolve the conflict and not having done so, the decision of the Court below should not stand citing in support the cases of Multichem Ind. Ltd. v. Musa (2013) 8 NWLR (pt. 1356) 404 at 419, Integrated Builders Ltd. v. Domzaq Ventures (Nig.) Ltd. (2005) 2 NWLR (pt. 909) 97 at 115 – 117, Mark v. Eke (2004) 5 NWLR (pt. 865) 54 at 78, 80 – 81, Agip (Nig.) Ltd. v. Agip Petrol Int.l (2010) 5 NWLR (pt. 1187) 388 – 389, Anyoha v. Chukwu (2008) 4 NWLR (pt. 1076) 31 at 45, N.B.N. v. Are Brothers (1977) 6 SC 97, Falobi v. Falobi (1976) 9 – 10 SC 1 at 15, Eboh v. Oki (1974) 2 SC 41, Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 688, Nigerian Arab Bank Ltd. v. Ogueri (1990) 6 NWLR (pt. 59) 751 at 760, Arjay Limited and Ors. v. Airline Management Support Ltd. (2000) LPELR 6787 read with Section 116 of the Evidence Act 2011 (the Evidence Act).
The appellant argued, in the alternative, that the alleged service and affidavits of service presented by the respondent are fundamentally defective and constitute improper service on the appellant as a company in that by Exhibits SFC and SFC1 the alleged service of the processes on the appellant were done at Tawa Badru Close, Langbasa, Lagos, when Exhibit JA1 and paragraph 10 of the appellant?s affidavit showed the registered office of the appellant is situated at 16, Karimu Kotun Street, Victoria Island, Lagos and that the alleged service was effected on the front desk officer instead of on a principal officer or director, secretary, Trustee, senior/principal/responsible officer – of the appellant which made the alleged service bad and ineffective citing in support the cases of Mark v. Eke (supra), Kraus Thompson Org. Ltd. v. Unical (2004) 9 NWLR (pt. 879) 631 at 656, Integrated Builders v. Domzaq Vent. (Nig.) Ltd. (2005) 2 NWLR (pt. 909) 97 at 118, Midens System Ltd. v. Effiong (2011) 2 NWLR (pt. 1231) 354 at 368 read with Order 7 rule 9 of the High Court of Lagos State (Civil Procedure) Rules 2004.
The appellant also contended that another flaw in the alleged service was that the full name and stamp of the appellant’s company were not stated on the purported acknowledgement of service; only the inscription ‘CHIOMA was stated therein; therefore the only reasonable inference is that the writ was never served as no such service was reflected in the indorsement of the writ vide pages 1 – 2 of the record of appeal (the record) and Exhibit SFC in page 303 thereof which was left blank citing in support the case of Martin Schroder and Co. v. Major and Company (Nig.) Ltd. (1989) 2 NWLR (pt. 101) 1 at 13.
The appellant referred to Exhibit JA3, the list of its employees authored by the Lagos State Government Internal Revenue Service, to contend that, had the Court below evaluated Exhibit JA3 it would have held that ‘Mr., Miss, and Mrs. Chioma’ who allegedly took service was not in the employment of the appellant citing in support the case of Lafia Local Government v. Nassarawa State (2012) 17 NWLR (pt. 1328) 94 at 130 on evaluation of evidence.
It was also argued that affidavit of service is rebuttable evidence of service and that had the Court below properly evaluated the evidence it would have found that the appellant fulfilled all the requirements of setting aside the default judgment and should have granted the appellant’s application which had a viable statement of defence attached to it and that evidence not evaluated may be evaluated by an appellate Court citing in support the cases of Multichem Ind. Ltd. v. Musa (supra) at 419, Anyoha v. Chukwu (supra) at 45, Lufthansa German Airlines v. William Ballantine (2012) LPELR 7977, Salako v. Dosunmu (1997) 8 NWLR (pt. 517) 371, Umesie v. Onuaguluchi (1995) 9 NWLR (pt. 421) 515, Okolo v. Uzoka (1978) 4 SC 77, Olorunyolemi v. Akhagbe (2010) 8 NWLR (pt. 1195) 48 at 62, Ndukauba v. Kolomo (2005) 4 NWLR (pt. 915) 411 at 431, Newswatch Communication Ltd. v. Attah (2006) 12 NWLR (pt. 993) 145 at 181, Williams v. Hope Rising Voluntary Fund Society (1982) 1 – 2 SC 139.
The appellant referred to the date the decision of the Court below was delivered on 13.10.14 and the application to set aside the judgment was filed on 30.10.13 and argued on 15.04.14 vide pages 339 – 340 of the record to contend that there was time lag of 181 days from the date the application was argued and the date the decision on it was delivered which the appellant further contended breached Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (the 1999 Constitution) and affected the mind of the learned trial Judge to grasp the entire facts, evidence, and written addresses on core issues of place of service presented by the appellant which resulted in a miscarriage of justice under Section 294(5) of the 1999 Constitution, therefore the decision should be set aside on the said ground citing in support the cases of Umar v. Geidam (2015) LPELR ? 24459, Bankole and Ors. v. Dada (2002) LPELR 10209,Akpor and Ors. v. Iguoriguo and Ors. (1978) 2 SC 115, Ekeri v. Kimisede and Ors. (1976) 1 NMLR 194, Kakarah v. Imonikhe and Ors. (1974) 4 SC 151, Ariori v. Elemo (1983) 1 SCNLR 1, Ifezue v. Mbadugha (1984) 5 SC 79, Dibiamaka v. Osakwe (1989) 3 NWLR (pt. 107) 101 at 114, Emenimaya v. Okorji (1987) 3 NWLR (pt. 59) 6, Molegbemi and Ors. v. Ajayi and Ors. (2011) LPELR 4501.
It was based on the submissions (supra), that the appellant urged that the appeal should be allowed and the decision of the Court below delivered on 13.10.14 be set aside by granting the motion on notice dated 30.10.13 by setting aside the default judgment delivered on 26.06.12 and directing that the suit be heard and decided on the merits. The respondent did not file brief of argument. The appeal was therefore argued on the appellant’s brief alone.
The case at the Court below did not involve the gauging of the demeanour of witnesses which is oftentimes affected by lapse of time as a result of memory lapse. The fact that the Court below omitted some facts and materials in the evaluation of evidence on the cold printed record do not involve the credibility of witnesses and would not impede an appellate Court from looking at the unevaluated evidence under Section 15 of the Court of Appeal Act, 2004. There was therefore no miscarriage of justice from the regrettable failure of the Court below to deliver its decision within ninety (90) days from the date of conclusion of the case as to nullify the decision of the Court below vide Section 294(5) of the 1999 Constitution read with the cases of Okon v. State (2018) 12 NWLR (pt. 1634) 558, Atungwu and Anor. v. Ochekwu (2013) 14 NWLR (pt. 1375) 605 at 624.
The bailiff of the Court below swore to an affidavit of service. It was put in evidence as Exhibits SFC and SFC1 attached to the respondent’s counter affidavit. The appellant had in an affidavit of 51 paragraphs contained in pages 184 – 189 of the record vehemently denied service of the originating processes and other processes as well as the hearing notice on it.
Service of process where required is fundamental as it is a condition precedent that vests the Court with jurisdiction to entertain the matter before it. Being constitutional in the sense that it affects fair hearing under Section 36(1) of the 1999 Constitution and jurisdictional it must be determined first, once challenged vide Ahmed v. Ahmed (2013) 15 NWLR (pt. 1377) 274 following the cases of Obimonure v. Erinosho (1966) 1 ALL NLR 250, Haruna v. Ladeinde (1987) 4 NWLR (pt. 67) 941, Okesuji v. Lawal (1991) 1 NWLR (pt. 170) 661. See also the cases (supra) cited by the appellant on the point.
The affidavit of service deposed to by the process server (bailiff) in Exhibits SFC and SFC 1 is prima facie evidence of service, but it is not conclusive proof of service of process vide Ahmed v. Ahmed (supra).
The appellant’s affidavit challenging service of process on it denied service by deposing that it was not served at its registered office as is required of corporate bodies, that there was no service at all; that even if it was served the service was not in accordance with the rules of the Court below and thus constituted ineffective service; and, also, that if service was done there should have been an endorsement on the writ to that effect as required by the rules of the Court below.
There was therefore affidavit evidence that is irreconcilably in conflict on crucial facts on the service of the originating process and other processes including hearing notice on the appellant before the Court below heard and determined the action in the absence or behind the back of the appellant. Section 116 of the Evidence Act (a prospective legislation) provides in that wise thus-
“When there are before a Court, affidavits that are irreconcilably in conflict on crucial facts, the Court shall for the purpose of resolving the conflict arising from the affidavit evidence, ask the parties to proffer oral evidence as to such facts, and shall hear any such oral evidence of the deponents of the affidavits and such other witnesses as may be called by the parties.”
See also the litany of cases (supra) cited by the appellant on the issue.
The Court below did not ask the parties to proffer oral evidence to resolve the crucial facts on disputed service of originating process and other processes on the appellant before the case was heard and determined against the appellant. I think the Court below erred in not doing so. There is therefore merit in the appeal on this issue.
The other issues would involve ascribing weight or probative value to one version of the contest against the other when it is clear that the affidavits are irreconcilably in conflict on the crucial facts of disputed service of process which will entail picking and choosing from the conflicting affidavit evidence thus blowing hot and cold at the same time as the only safe procedure in such a case is for the parties to be required to call oral evidence to settle the irreconcilable conflict; consequently, I am slow to decipher from the irreconcilable conflicting affidavit evidence the version that is trustworthy.
In conclusion, I find merit in the appeal as earlier stated in the discussion and hereby allow it and set aside the decision of the Court below refusing to set aside its earlier judgment and remit the case to the Court below to ask for oral evidence from the parties under Section 116 of the Evidence Act for the purpose of determining the motion to set aside the judgment it had earlier given in the case. Parties to bear their costs.
MOHAMMED LAWAL GARBA, J.C.A.: I have read the draft of the lead judgment written by my learned brother Joseph Shagbaor Ikyegh, JCA in this appeal and agree that the appeal, for all the reasons succinctly set out therein, deserves to succeed for being meritorious.
The appeal is allowed by me too in terms of the lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before now the draft of the lead judgment delivered by my learned brother Joseph Shagbaor Ikyegh JCA and I agree with the judgment, I adopt it as mine with nothing to add.
Appearances:
Mr. A. Adesina, SAN with him, Mr. M. Obadan and S. Akpan, Esqr.For Appellant(s)
The Respondent was unrepresented but served hearing noticeFor Respondent(s)
