HENSHAW v. FIDELITY BANK
(2020)LCN/14660(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, October 30, 2020
CA/C/289/2016
RATIO
JUDGMENT: MEANING AND NATURE OF A JUDGMENT IN DEFAULT
The Black’s Law Dictionary defines a default judgment as that judgment rendered in consequence of the non-appearance of the defendant. It is a judgment entered upon the failure of party to appear or to plead at the appointed time. It is trite that a judgment obtained in default of appearance is not a judgment on the merit, but the expression of the coercive power of the Court where the judgment is obtained for failure to observe the rules of Court, or where the defendant willfully elect not to defend the case and thereby abstains from showing appearance in respect of the case. PER BARKA, J.C.A.
PROCESS: FUNDAMENTAL NATURE OF SERVICE OF COURT PROCESS
It is also trite that service of Court process is a precondition to the Courts exercise of adjudication, and where there is no service of Court processes, any subsequent proceedings are a nullity ab initio. Truly as held numerously by this Court and the apex Court, service of process is fundamental. It is the means for alerting a party of the case filed against him and subsequently of the hearing thereof. It is only where the parties are appropriately summoned before it, that a Court of law is endowed with the jurisdiction to hear the suit. See Estate of late Chief HIS Idisi vs. Ecodril (Nig) Ltd (2016) 12 NWLR (pt. 1527) SC, UBA vs. JM & Co (Nig) Ltd (2016) 5 NWLR (pt. 1504) 171, Aondoaka vs. Obot (2016) 6 NWLR (pt. 1508) 280. PER BARKA, J.C.A.
SERVICE OF PROCESS: BURDEN OF PROOF WHERE A BAILIFF SWEARING TO AN AFFIDAVIT OF SERVICE OF ORIGINATING PROCESS
The law is that once a bailiff swears to an affidavit of service of originating process, the burden to prove otherwise rests on the defendants who challenges fact of service— see Egbagbe v. Arch. Ishaku & Anor. (2006) ALL FWLR (pt.331) 277 @ 1297CA. Where counsel acted as pointer to the bailiff, the affidavit of service carries heavier weight and would be relied upon by the trial Court to hold that service has been affected and proved. – Prince Ajibola & Anor v. Sogeke & Anor (2002) FWLR (pt. 93) 1959 @ 1987CA. PER BARKA, J.C.A.
AFFIDAVIT OF SERVICE: ACCEPTED MODE OF CHALLENGING AN AFFIDAVIT OF SERVICE
The only accepted mode of challenging an affidavit of service is by filing a counter affidavit and not an application—see Engineer Fatokun v. Dr. Somade & Anor. (2002) FWLR (pt.93) 1989 @ 2000 CA. PER BARKA, J.C.A.
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
VERA ENE HENSHAW (TRADING AS HENNYPLAN ENTERPRISES) APPELANT(S)
And
FIDELITY BANK PLC RESPONDENT(S)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): According to the appellant, on the 13th of January, 2016, while doing her normal business at No. 140 Ndidem Usang Iso Road, Calabar under the name and style of Henny Plan Enterprises, was notified by one Ms. Usen of an ongoing execution taking place at the time on her property situated at Diamond Estate, Ekorinim phase II, Calabar, and that the premises was condoned off by officers and men of the Nigerian Police and the Bailiffs of the Court who were there on execution duties.
That when she moved to the premises of the Court to protest the attachment of her property, she was eventually served with a writ of attachment where upon she called one David Obande, a legal practitioner who on arriving to the Court premises applied for the processes of Court.
On going through the documents obtained, she was shocked to see affidavits purporting to be proof that she was served with some of the processes of Court before judgment, and while on a closer scrutiny, she observed that the services allegedly effected, were in fact effected at an unspecified place at Etta-Agbor Road, Calabar South, and that
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the signature thereon indicating receipt of the service in the dispatch book was not her own.
Faced with these grim facts, appellant brought an application to set aside the judgment of the lower Court on the grounds of lack of service and breach of fair hearing which was refused by the lower Court. She denied owing the respondent any sum of money, contending that respondent used the lower Court in order to perpetuate fraud on the appellant. It is against that judgment of the lower Court that led to the filing of a Notice of Appeal on the 4th of March, 2016 predicated on four grounds of appeal. Appellant also filed another Notice of Appeal on the 17/5/2016. The two Notices of Appeal were consolidated by order of this Court.
The respondents on the other hand in their own narration, stated that the appellant collected an overdraft facility from the respondent on the 7/10/2008 amounting to Eight Million Naira only, which was to be paid on the 17th of April, 2009. The appellant having failed to settle its indebtedness despite oral demands and written letters, warranted the respondents to institute a law suit at the High Court of Cross River State sitting
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in Calabar for the recovery of the debt owed. The respondents continued to state that appellant failed to enter any memorandum of appearance or to file any statement of defense, counter affidavit or to put up an appearance at all despite being served personally with the originating processes. Respondent also stated that when the period for the filing of the statement of defense elapsed, the respondent as claimant applied for motion on notice for judgment to be entered in default of appearance which was duly served on the appellant, and thereafter judgment entered in favour of the claimant in accordance with the Sheriffs and Civil Process Law of Cross River State before execution was levied on the property used as collateral for the loan facility. Appellant’s motion seeking to set aside the judgment and execution after the execution was levied was dismissed by the lower Court.
The record of appeal having been duly transmitted on the 21st of September, 2016, appellant proceeded to file the appellant’s brief of argument on the 17th of January, 2017 deemed filed on the 6th of February, 2019. Appellant also filed a reply brief on the 21/1/2019 deemed on the
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17/9/2020. In adopting the two process filed by him, learned counsel states that the issue for resolution revolves around whether appellant was properly served the processes of the lower Court leading to the default judgment. Having adopted the two briefs, counsel urged the Court to allow the appeal and to set aside the default judgment and execution.
In opposing the appeal, respondent filed a respondents’ brief on the 26/11/2018. Learned counsel for the respondent adopted the brief filed and urged the Court to dismiss the appeal.
In the brief settled by David Obande Esq. on behalf of the appellant, two issues were couched for the resolution of the appeal as follows:
a) Whether the learned trial Judge erred in law in entering judgment against the appellant on the 7th of December, 2015 without services of originating processes, hearing notices, and the motion for judgment and without a hearing.
b) Whether the learned trial Judge entered judgment for the respondent based on the rights of the parties under the loan contract.
Also in the respondents’ brief settled by Dr. Emmanuel Egbe Idaka, two issues were
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formulated for the Courts resolution as follows:
1. Whether the defendant/appellant herein who was served with all originating processes, motion on Notice for judgment in default of appearance, with un-rebutted proof of personal service by the bailiff can complain of lack of fair hearing, to rob the lower Court of jurisdiction.
2. Whether the Court below entered judgment based on the terms and conditions of the contract between the parties.
I see no difference in the two issues crafted by the parties except for the slant in each parties formulation of the issues. This being so, this appeal shall be determined upon the following issues, slightly reformulated by me as follows:
1. Whether the Learned trial judge erred in law or not in entering judgment for the respondent on the 7th of December, 2015 with or without services of originating processes, hearing notices and the motion for judgment with or without a hearing notice.
2. Whether the Learned trial Judge entered judgment for the respondent based on the rights of the parties or enshrined in the conditions of the contract entered between them.
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ISSUE ONE
Whether the learned trial Judge erred in law or not in entering judgment for the respondent on the 7th December, 2015 with or without services of originating processes, hearing notice and the motion for judgment with or without a hearing notice.
This issue flows from the appellants grounds 1 – 3 of the notice of appeal. Learned counsel submits that the lower Court erred in law when it entered judgment against the appellant, the judgment being flawed by the non service of the originating processes, non issuance and service of hearing notices on the appellant. Learned counsel submits that all the processes for service were put at an unnamed address of service at Eta Agbor Road Calabar as against the address for service. He submits that it is trite law that a Court must satisfy itself as to service before proceeding to embark on adjudication as it affects the parties right to fair hearing, and where the Court discountenances the presence of the defendant, a violation of the party’s right to fair hearing is occasioned. He drew the Court’s attention to the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, on the right to
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fair hearing in the determination of a party’s right, contending that certain basic attributes and criteria of fair hearing are relevant. He maintained that appellant was denied the opportunity of a fair hearing, maintaining that the service of process is basic and fundamental as it is the foundation of the action. He insists that the appellant was not served with any notice as required by the rules, and submits that the judgment based on a motion which was not served is vitiated as lack of service goes to the root of the action.
Further submitting, learned counsel argued that the lack of service in the case goes to the competence of the case to adjudicate, as any defect in competence of the Court is fatal and the proceedings a nullity. He goes further to argue that the plaintiff did not properly invoke the jurisdiction of the Court, which can be raised at any stage of the proceedings. On the non sealing of process, it was argued that the motion for judgment was not so sealed as required to vest the Court with jurisdiction. He urged the Court based on the above to set aside the judgment entered and thereby resolve the issue in favour of the
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appellant.
With respect to issue two dealing with whether the learned trial judge entered judgment for the respondent based on the rights of the parties under the loan contract, counsel argued that parties are bound by the terms of their contract, and states that the letter for the loan located at page 33 – 34 of the record speaks for itself. He submits that nobody can read into the contract what is not in the contract, nor can the Court re-write the contract for the parties. Submits therefore that all the other reliefs sought were clearly outside the contemplation of the parties. He urged the Court to resolve the issue in favor of the appellant.
Responding to the issues submitted upon, the learned counsel for the respondent submitted that the originating processes were duly served on the appellant personally by the bailiff, but appellant chose not to respond. Though conceding that absence of effective service is a fundamental omission, it being a condition precedent to the exercise of jurisdiction, and that absence of service denotes lack of fair hearing, and thereby result in the miscarriage of justice, contended that where service is
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personally and properly served on the appellant with incontestable proof duly deposed to, it cannot be argued that the rule of fair hearing was not observed, further contending that absence of service denotes lack of fair hearing, learned counsel insists that the appellant was accorded fair hearing as she was personally served with all the Court processes, maintaining that the right to fair hearing in the circumstance was not breached.
On whether the non-sealing robbed the Court of jurisdiction to entertain the case before it, counsel pointed out that failure to affix the stamp cannot invalidate the process filed in Court, more so as the process allegedly filed in breach of the rules of professional conduct for legal practitioners 2007 was saved and cured and its signing and filing regularized.
On whether the trial Court entered judgment based on conditions and terms of the contract between the parties, learned counsel submitted that the trial Court entered judgment in default of appearance based on the terms of the agreement provided for in the overdraft facility. He alluded to the terms of the contract and submits that a careful calculation of the
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various interests, taxes etc, the amount will exceed the sums of Eight million naira. He submitted that where parties reduce their agreement into writing, it is presumed that they intend the writing to form a full and final intention binding them, and thereby bound by the terms therein. He then argued that the order made by the trial Court for the sale of the property registered as No 59 page 59 is to recoup the debt owed the claimant. He finally urged the Court to dismiss the appeal for lack of merit.
The crux of the instant appeal lies on the narrow lane as to whether appellant was indeed served with the processes initiating the case generating the instant appeal before the lower Court, including all other processes particularly the notice of motion that judgment be entered in default of appearance. Appellant complains that the default judgment entered against her was entered in error as she was unaware of the process that led to the judgment being entered against her due to non- service of the process. The Black’s Law Dictionary defines a default judgment as that judgment rendered in consequence of the non-appearance of the defendant. It is a
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judgment entered upon the failure of party to appear or to plead at the appointed time. It is trite that a judgment obtained in default of appearance is not a judgment on the merit, but the expression of the coercive power of the Court where the judgment is obtained for failure to observe the rules of Court, or where the defendant willfully elect not to defend the case and thereby abstains from showing appearance in respect of the case. It is also trite that service of Court process is a precondition to the Courts exercise of adjudication, and where there is no service of Court processes, any subsequent proceedings are a nullity ab initio. Truly as held numerously by this Court and the apex Court, service of process is fundamental. It is the means for alerting a party of the case filed against him and subsequently of the hearing thereof. It is only where the parties are appropriately summoned before it, that a Court of law is endowed with the jurisdiction to hear the suit. See Estate of late Chief HIS Idisi vs. Ecodril (Nig) Ltd (2016) 12 NWLR (pt. 1527) SC, UBA vs. JM & Co (Nig) Ltd (2016) 5 NWLR (pt. 1504) 171, Aondoaka vs. Obot (2016) 6 NWLR (pt. 1508) 280.
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The complaint of the appellant herein is that the originating processes in respect of the case filed against her were not brought to her attention, by way of service, and therefore a fundamental vice, since it is the service of the originating process that denotes the fulfillment of a condition precedent for the exercise of the Court’s jurisdiction. The respondent on the other hand faults the assertion by the appellants and referred to the evidence of one Etowa O. Etowa a bailiff of Court who tendered a dispatch book to which the appellant signed as having collected the processes of Court, contending that appellant was indeed duly served the processes of Court.
The lower Court on whether the appellant was served the originating processes as well as all other processes leading to the judgment entered against the appellant, held that:
“The respondent called evidence of the Bailiff of Court who alleged served the said processes on the defendant. He testified that he served the originating processes of this case on the defendant at Etta Agbor Road resident of the defendant but that the defendant rather, wrote her address on the
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endorsement copy as No.140 Ndidem Usang Iso Road, Calabar so he used the address in his affidavit as the same had been written by the defendant on his dispatch notebook. The law is that once a bailiff swears to an affidavit of service of originating process, the burden to prove otherwise rests on the defendants who challenges fact of service— see Egbagbe v. Arch. Ishaku & Anor. (2006) ALL FWLR (pt.331) 277 @ 1297CA. Where counsel acted as pointer to the bailiff, the affidavit of service carries heavier weight and would be relied upon by the trial Court to hold that service has been affected and proved. – Prince Ajibola & Anor v. Sogeke & Anor (2002) FWLR (pt. 93) 1959 @ 1987CA.
The only accepted mode of challenging an affidavit of service is by filing a counter affidavit and not an application—see Engineer Fatokun v. Dr. Somade & Anor. (2002) FWLR (pt.93) 1989 @ 2000 CA. In the instant case, there is no counter affidavit filed or disposed to by the defendant to counter that of the bailiff filed here soon after of service of the said processes.
Paradoxically, the application never called evidence of everybody to disprove the
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evidence of the respondent that service was indeed effected on the defendant. She chose rather, to rely on the case put forward by the respondent. I find it very queer as the respondent has through his lone witness, shown that the defendant was indeed, served the originating processes in this case as well as the motion for judgment.
I believe that the defendant was served the processes issued in this case, as the bailiff of Court testified on the point, affirmatively, and never buckled under cross examination by applicant’s counsel even as his affidavit of services shows. There was no evidence of the applicant who has alleged that she was never served, which shows that service was never made. That she says she was nowhere near Calabar at that time, is of no moment as there was no evidence adduced to prove that fact. It remained a mere allegation and no more. There is no evidence of where she was, with whom, at what time, et al, which would have given strength to her case on the point.
I do not find evidence cogent, compelling and reliable of the applicant which debunks the case of the respondent as the Bailiff testified before this Court
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unchallenged and un-contradicted, that he served the defendant at her residence at Etta Agbor Road, Calabar, but that the defendant chose to write her address as No.140 Ndidem Usang Iso Road, Calabar, so he followed suit by using the same address in his affidavit of service. The duty was on the sturdy shoulders of the applicant to prove non-service but which she did not do and as such entitled to the reliefs prayed of this Court”.
From the foregoing therefore it is evident that the lower Court was convinced that appellant was duly served with the processes of Court as evidenced by the bailiff of Court. It is trite law that an affidavit of service deposed to by a Court bailiff is prima facie evidence of proof of service carrying the stamp of a rebuttable presumption of service, and in the absence of a counter affidavit challenging it, the Court accepts it as true. See Effanga vs. Rogers (2002) LPELR – 12299 (CA) per Ekpe JCA.
As can be seen the lower Court in strict fidelity with the directives of the Supreme Court in First Bank of Nigeria PLC vs. TSA Industries Ltd (2010) LPELR – 1283 (SC) per I. T. Muhammed JSC, which held that the
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Court has a duty to meticulously verify and scrutinize the claim to service of process on the party considered the fact that appellant accepted the evidence of the bailiff without a counter. The trial Court went further to scrutinize the contention of the appellant with regards to where the service was effected. I see no reason to fault the lower Court and hold that appellant was duly served all the processes as required by law. Consequently the jurisdiction of the lower Court was rightly invoked, and the judgment of the Court valid.
Learned counsel for the appellant also complained about the non-sealing of the motion for judgment. The non-sealing of a process is not a jurisdictional matter being purely procedural. It is not null and void as contended. The respondents counsel is right having asserted that a document not properly signed and filed in terms of Rule 10 (1) of the Rules of Professional conduct is voidable as stated by the apex Court in the case of Bello Sarkin Yaki vs. Atiku Abubakar Bagudu (2015) 249 LRCN 1 @ 36. In any case, the respondent counsel having duly paid for the seal and stamp as stated in the respondent’s application filed on the
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27th of January, 2016, supported by the accompanying affidavit, upon which the leave of Court was granted, the process filed cannot be said to be invalid and I so hold. I resolve this issue against the appellant.
On the issue whether the trial Court entered judgment based on the conditions and terms of the contract between the parties, the lower Court considered the claimants claim in paragraph 13 of the statement of claim, which remained undefended, the terms of contract entered between the parties, see pages 33 – 34 of the record in arriving at the sums awarded. Parties are all agreed that parties are bound by the agreement entered in writing between them and the agreement being that contained in the grant of the overdraft facility binds the parties thereto, and as rightly argued, the Court cannot make or rewrite any agreement different from the one entered between them. I accept the argument that the judgment of the Court was premised on the said agreement, and as such nothing extraneous was captured in the judgment. In tandem with the loan agreement entered is the property used as collateral and thereby ordered by the Court to be sold to offset
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the debt. That too is in fidelity with the loan agreement. I do not see any merit in the appellant’s argument on the issue, and thereby resolve the same against the appellant.
Having resolved all the issues against the appellant, the conclusion of the matter is that the appeal is lacking in merit and thereby dismissed by me. Appellant shall pay costs of N50,000.00 only to the respondent.
Appeal dismissed.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother Hamma Akawu Barka, JCA. I agree with the reasoning and conclusion reached in the lead judgment. I also dismiss the appeal.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the benefit of reading before now a copy of the judgment just delivered by my learned brother Hamma A. Barka, JCA. I agree with the said reasoning and conclusion that this appeal is devoid of any merit.
Judgment in default of appearance is entered where the person against whom the order is sought has been duly served with the writ of summons and statement of claim but failed to respond or file a defence. Thus, no Court can enter default judgment against any
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one without proof of service of the originating processes. In the present case, the lower Court was right to have entered judgment in default of appearance based on the uncontroverted affidavit of service deposed to by the Court’s bailiff. I too have no hesitation in dismissing the unmeritorious appeal. I abide by all the consequential orders inclusive of an order as to costs.
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Appearances:
David Obande Esq. For Appellant(s)
Dr. Emmanuel Idaka Esq. For Respondent(s)
