MRS. COMFORT AKINMOSIN v. MRS. AJOKE MAKINDE & ANOR.
(2012)LCN/5695(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of December, 2012
CA/B/12/2010
RATIO
PROCEDURE: HOW IS A CHALLENGE TO THE AFFIDAVIT OF SERVICE OF COURT PROCESS RESOLVED
Clearly, there were divergences in the depositions in the appellant’s affidavit in support on the application and in the bailiffs affidavit of service. It cannot be gainsaid that the question whether the service of a court process has been effected or not is a question of fact. In our view, oral evidence was the only appropriate means of ascertaining the true position with regard to the alleged service, Mohammed v. Mustapha (1993) 5 NWLR (pt 292) 222, 232.
The lower court was, definitely, in error to have assumed that the bailiff’s averments in the said affidavit of service were so sacrosanct that they should be accorded the deference due to the magisterial pronouncements of the oracle of Delphi. That should not have been so. In the face of the appellant’s strident refutation of the bailiff’s claims, the said affidavit of service should not have been treated as an irrefutable or conclusive proof of service,
Wappah v. Mourah (2006) 18 NWLR (pt 1010) 18, 45.
Where, as in this case, the affidavit of service is challenged, oral evidence is mandatory. The deponent, in such situations, becomes a vital witness. As such, when such a deponent (as the bailiff in this case) is not called, grave doubts arise as to whether or not service was, actually, effected, Anyoha and Ors. v. Chukwu (2007) LPELR-CA/PH/203/2001; (2008) 4 NWLR (pt) 1076. PER CHIMA CENTUS NWEZE, J.C.A.
JUDGMENT: HOW SHOULD THE COURT DECIDE LAND CASES
In effect, the default judgment of the lower court awarded the said property to the respondents herein even when, as contended by the appellant, she was not served with the originating processes. Here, we can do more than re-iterate the wise counsel of Nnaemeka Agu JSC. In Usikaro v. Itsekiri Land Trustess (1991) 2 NWLR (pt.171) 173, the distinguished jurist, now of the Blessed Memory, intoned, most percipiently:
I must note that the subject-matter of the suit is land. This Court has, in the case of Chief James Ntukidem & Ors. v. Chief Asuquo Oko & Ors. (1986) 5 NWLR (pt. 45) 909, emphasized the need to decide land cases on their merits. I need hardly reiterate it here. I appreciate the fact that it can be very irritating, in fact annoying, for a Judge to come to court ready to hear a case, particularly at a special fixture, and a party or its counsel just decides to frustrate the hearing. But the court must balance this feeling, justifiable as it may be, with the consideration that land litigations are still very sensitive issues in most parts of Nigeria. An uncanny decision in a land case can lead to a breakdown of law and order. PER CHIMA CENTUS NWEZE, J.C.A.
EVIDENCE: ON WHOM LIES THE BURDEN OF PROVING SERVICE OF PROCESS
The burden of proving service lies on the person (usually the plaintiff) asserting that there was service and this is done by inviting the parties to call oral evidence and the vital witnesses to call are:
(a) For the plaintiff, the deponent to the affidavit of service, and any other witness to state that service took place as deposed in the affidavit of service and
(b) For the defendant, the defendant and his witnesses to state that there was no service on the defendant.
Put in other words, since the appellant’s affidavit (also in the court’s file) challenged the fact of service, the bailiff’s affidavit of service was no longer a conclusive or irrefutable proof of service. As we held earlier, confronted with the appellant’s disclaimer of service by substituted means, as claimed by the bailiff, the lower court was bound to call oral evidence to resolve the conflict in the affidavits before it.
After all, the issue as to whether a court process was served or not is a question of fact. Being a question of fact, therefore, oral evidence of it ought to have been given, Kaduna L. A. v Makudawa (1971) 1 NMLR 100; Mohammed v. Mustapha (supra). In our view, the lower was in error to have stamped the said bailiffs affidavit with the imprimatur of cogency or irrefutability, Wappah v Mourah (2006) 18 NWLR (pt. 1010) 18, 45. PER CHIMA CENTUS NWEZE, J.C.A.
LEGAL PRACTITIONER: WHETHER COUNSEL HAS THE RESPONSIBILITY TO APPRISE CLIENT OF ORIGINATING PROCESS
It is not the responsibility of counsel, who had handled a matter for a client previously, to apprise her of originating processes in all other matters. PER CHIMA CENTUS NWEZE, J.C.A.
PROCEDURE: EFFECT OF FAILURE TO SERVE ORIGINATING AND OTHER PROCESSES
Indeed, as already shown above, failure to serve originating and other processes have far-reaching consequences, Skenconsult (Nig.) Ltd. and Anor. v. Ukey (supra); Agip Nig. Ltd. v. Agip Petrolli International and Ors. (supra); Tsokwa Motors Nig. Ltd. v. UBA Plc (supra); Odita v. Okwudinma (supra); Union Beverages Ltd. v. Adamata (supra); ACB Plc v. Losade Nig. Ltd. (supra).
What is more, even the presence of the appellant in court, without more, would not suffice. As Mukhtar JSC (as she then was) held in Olorunyolemi v. Akhagbe (2010) 8 NWLR (pt. 1195) 48, 80:
The fact that a party was in court on the day a matter is slated to come up is not necessarily a confirmation that the party was actually served… There must be actual proof of service on the necessary parties i.e. the evidence of receipt vide signature of the party personally or his counsel, or an affidavit of service sworn to by the person who effected the service.
(italics supplied for emphasis), see, also, Habib Nigeria Bank Ltd. v. Wahab Opomulero and Ors. (2000) 15 NWLR (pt. 690) 315. PER CHIMA CENTUS NWEZE, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KERE-EKUN Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
MRS. COMFORT AKINMOSIN Appellant(s)
AND
MRS. AJOKE MAKINDE
MRS. LAKUNLE Respondent(s)
CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): By their application dated January 23, 2006, the plaintiffs (the respondents in this appeal) entreated the High Court of Ondo State, Okitipupa Division, with a supplication for an order for the issuance and service of the writ of summons on the defendant (now appellant) in an address outside its jurisdiction. That address was given as No. 66 Adeoye Street, Bariga, Lagos. On January 31, 2006, the said court (hereinafter referred to as the lower court), granted the order as prayed.
It would appear that attempts to effect service on the defendant proved abortive, hence, the plaintiffs (respondents herein) moved the lower court for leave to serve the defendant (appellant) by substituted means. On May 16, 2006, the lower court granted the said application. The plaintiffs/respondents’ account was that the bailiffs of the lower court and of the Lagos High Court, duly, posted the said processes at the entrance of the appellant’s house (supra). A proof of service of the process was prepared and filed in court.
On January 9, 2007, upon the application of the plaintiffs/respondents, the matter was set down for hearing. By order of court, the case was adjourned to January 22, 2007 for trial. It is clear from page 17 of the records that the court did not order the issuance of hearing notice for service on the defendant at the close of its proceedings for January 9, 2007.
On January 23, 2007, the matter was, further, adjourned to February 6, 2007 for hearing. Although the defendant was absent, it is clear from pages 17 and 18 of the records that no hearing notice was issued for service on her for the hearing of the case on the said February 6, 2007. The matter was heard on February 6, 2007. The defendant was absent. There was no report of service on her.
At the close of the plaintiff’s case, the court reserved its judgment. Again, no hearing notice was issued for service on the defendant. On May 2, 2007, when the judgment was delivered, the defendant was absent. She was not represented either, (page 19 of the record). It is clear, therefore, from pages 17; 18 and 19 of the records that no hearing notice was ever issued for service on the defendant. From those pages of the records, it is evident that none was ever served on her for the hearing of the case. From the same pages of the records, it is, equally, clear that she had no notice of the date of the delivery of the said judgment.
About two weeks after, the defendant/appellant beseeched the lower court with an application to set aside the said judgment. In the affidavit in support of the application, she denied the service of the court processes on her. Paragraphs 7 and 10 are germane. According to her, it was impossible for the said bailiffs to gain access into the said premises for the purpose of posting the said processes at the entrance thereof.
That being the residence of the Commissioner of Police, “with all security apparatus, the bailiff could not gain access to the main entrance…without the knowledge of the police men around”. In its ruling of May 27, 2009, the lower court dismissed the application; hence, it declined the invitation to set aside the said default judgment. Aggrieved by that ruling, the defendant/appellant appealed to this court. From her five Grounds of appeal, she distilled the following issues for the resolution of her appeal.
ISSUES FOR DETERMINATION
Whether the trial judge was right when it (sic) refused to set aside its own default judgment on the ground that there was no counter affidavit in rebuttal of Affidavit of service?
Whether filling of affidavit of service is a conclusive proof that the Appellant was served with the court processes in view of the salient facts deposed to by the Appellant in its rebuttal?
Whether the trial judge did evaluate the affidavits evidence before him and gave reasons for his decision before he arrived at his ruling?
Whether the failure of the trial judge to set aside its Default judgment denied the Appellant her fundamental right to fair hearing and possession of property and thereby occasioned a miscarriage of justice?
Whether the trial judge did offend the provision of the 1999 constitution of the Federal of Republic of Nigeria when it (sic) delivered its judgment outside the statutory period provided by the Constitution?
ARGUMENTS/SUBMISSIONS ON THE ISSUES
ISSUE 1
Whether the trial Judge was right when it (sic) refused to set aside its own default judgment on the ground that there was no counter affidavit in rebuttal of affidavit of service?
When this appeal came for hearing on October 10, 2012, learned counsel for the appellant, adopted and relied on the brief of argument filed on behalf of the appellant on February 15, 2010. In the said brief, it was explained that the lower court refused to set aside its default judgment on the ground that the bailiff’s affidavit of service had not been controverted since there was no counter affidavit in its rebuttal, citing Nigeria Navy v. Madaki (2006) 4 NWLR (pt. 969) 69, 80.
Counsel submitted that the lower court was in grave and serious error of law in its view that the said affidavit of service had not been rebutted because the appellant did not file a counter affidavit. It was pointed out that said lower court failed to look at the defendant/appellant’s affidavit evidence attached to the motion paper which entreated the court to set aside the default judgment. Certain averments therein denied the service of the court processes on the appellant.
He contended that if the lower court had made use of the opportunity afforded it to examine and evaluate the affidavit evidence before it and had taken cognizance of the salient facts contained therein, it would have arrived at a different conclusion. He insisted that the appellant had shown a good ground to warrant the default judgment being set aside.
In his view, once a good ground is shown, upon a proper application by the defendant, the court is bound to set aside its default judgment, Adeboye v. Olona Motors (Nig.) Ltd. (2002) 8 NWLR (pt. 759) 284; Malawi v Godazama (2000) 11 NWLR (pt. 678) 258. He cited authorities for the view that a court would favour an application to set aside a default judgment upon being apprized of the fact that it had acted on wrong principles, Salu v. Egeibon (1994) 6 NWLR (pt. 348) 23; University of Lagos v Aigoro (1985) 1 NWLR (pt. 1) 143; Anjah v. ANN Ltd. (1992) 6 NWLR (pt. 247). 319; Enekebe v. Enekebe (1964) 1 ALL NLR 102.
It was, further, submitted that failure to serve a party with the processes of the court goes to the root of the competence or jurisdiction of the court to deal with the matter. In order words, where the failure of a party to appear in court was due to the failure to serve him with court processes, any judgment given in that circumstance would be one given without jurisdiction and was liable to be set aside on appeal, P N Emerah & Sons (Nig.) Ltd. v. Dunu (1998) 9 NWLR (pt. 564) 86.
He, equally, submitted that, in an application such as the present one, the court should be liberal in exercising its discretion and ought to, generally, lean towards accommodating the defaulting party so that parties will be on equal footing in the presentation of their cases, Ohaji/Egbemo/Oguta Local Government v. Etiti (2001) FWLR (pt 45) 642,649.
He canvassed the view that in land matters, default judgments should be avoided. In such a matter, the plaintiff ought to lead evidence in proof of his claim so as to afford the court the opportunity of determining its merits even if the defendant fails to file a statement of defence, Usikaro v. Itsekiri Land Trustees (1991) 2 NWLR (pt. 171) L73; Ntukidem and Ors. v. Asuquo Oko and Ors. (1986) 5 NWLR (pt. 45) 979.
According to him, the lower court was wrong in its view that the affidavit of service has not been rebutted. He pointed out that averments in the affidavit in support of the motion to set aside the default judgment denied the service of court processes on the appellant. Detailed explanations were offered in the said affidavit: an affidavit which, in is his view, was tantamount to a counter affidavit in rebuttal of affidavit of service.
ISSUE 2
WHETHER FILING OF AFFIDAVIT OF SERVICE IS CONCLUSIVE PROOF THAT THE APPETLANT WAS SERVED WITH THE COURT PROCESSES IN VIEW OF THE SALIENT FACTS DEPOSED TO BY THE APPELTANT IN ITS REBUTTAL?
On this issue, learned counsel noted that the lower court placed heavy reliance on the said affidavit of service in deciding the case completely oblivious of the appellant’s supporting affidavit.
He submitted that the failure of the lower court to evaluate the averments in the said affidavit in support of the application had robbed it of the opportunity of a fair assessment of the case. The mere presence of the affidavit of service in the file was not a conclusive proof that the appellant was served with the court processes. This is more so in view of the credible evidence which the appellant adduced in her above affidavit which the court failed to consider.
ISSUE 3
WHETHER THE TRIAL JUDGE DID EVATUATE THE AFFIDAVIT EVIDENCE BEFORE HIM AND GAVE REASONS FOR HIS DECISION BEFORE HE ARRIVED AT HIS RULING?
Learned counsel opined that the lower court did not consider the affidavit evidence before it. In particular, it did not make any reference to the facts deposed to in the affidavit in support of the application and the respondents’ counter affidavit before giving its ruling.
In his estimation, the court was in grave and serious error when it failed to evaluate the averments in both affidavits before arriving at its decision. He reiterated the age-long proposition that evaluation of evidence and the ascription of probative value to such evidence are the preserve and primary functions of the trial court, Ndoma – Egba v. A.C.B. Plc (2005) All FWLR (pt. 283) 152; (2005) 14 NWLR (pt 944) 79; Oyadiyi v. Olaniyi (2005) 5 NWLR (pt. 919) 561.
In his contention, the consequence of a trial court’s refusal to exercise this function is that an appellate court would be justified in interfering with the court’s findings. In the instant case, the lower court neglected to perform this basis duty. This occasioned a miscarriage of justice.
ISSUE 4
WHETHER THE FAILURE OF THE TRIAL JUDGE TO SET ASIDE ITS (sic) DEFAULT JUDGMENT DENIED THE APPELLANT HER FUNDAMENTAL RIGHT TO FAIR HEARING AND POSSESSION OF PROPERTY AND THEREBY OCCASSIONED A MISCARRIAGE OF JUSTICE?
On this issue, it was contended that the lower court’s failure to set aside its default judgment affected the appellant’s rights to fair hearing and right to possess property. The view was taken that the appellant was not given fair hearing when the lower court dismissed her application to set aside the default judgment without factoring in her averments in her above affidavit. In essence, the submission here was that, contrary to section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, the appellant was denied the opportunity of fully advancing her defence that she was not served.
The result was that the lower court’s judgment dispossessed the appellant of her property without hearing her own side of the case, Ndukanba v. Kolomo (2005) All FWLR (pt 248) 1602; (2005) 4 NWLR (pt. 915) 411; Ntukidem v. Oko (1986) 5 NWLR (pt. 45) 909; Bamgboye v. University of Ilorin (1999) 10 NWLR (pt. 622) 290; Ansambe v. B.O.N. Ltd. (2004) All FWLR (pt. 221) 1427; (2005) 8 NWLR (pt 928) 650; Duke v. Government of Cross River State (2009)All FWLR (pt 488) 252.
ISSUE 5
WHETHER THE TRIAL JUDGE DID OFFEND THE PROVISION OF THE 1979 CONSTITUTION OF THE FEDERAT REPUBLIC OF NIGERIA WHEN IT (sic) DELIVERED ITS (sic) JUDGMENT OUTSIDE THE STATUTORY PERIOD PROVIDED BY THE CONSTITUTION?
It was explained that the lower court delivered its ruling one year after the addresses of counsel. No reason was offered for the delivery of the said ruling on May 27, 2009: a ruling that was reserved on May 22, 2008. Counsel observed that, at the interval, the respondents had, already, taken over possession of the appellants’ property and were enjoying the rents accruing from it, This has occasioned a miscarriage of justice on the part of the appellant.
The court was urged to hold that the aforesaid delay was in breach of section 294 of the Constitution of the Federal republic of Nigeria, 1999. The appellant has suffered a miscarriage of justice as provided in section 294(5) of the said Constitution, Florence Taylor v. The Trustees of Trinity Methodist Church (1986) 4 SC 1; Ifezue v. Mbadugha (1984) 5 SC 79; Odi v. Osafile (1985) 1 NWLR (sic) 17. It was observed that the ruling, being a final decision before the trial court, amounted to a judgment.
RESPONDENTS’ ARGUMENTS
Whether or not the application of the appellant asking for the judgment given in default satisfied the conditions upon which a court could set aside its judgment in default?
Counsel for the respondents, also, adopted and relied on the brief filed on March 2, 2010. He noted that the only issue for determination was whether the lower court was right in declining the invitation to set aside the above default judgment and, consequently, discountenancing the appellant’s entreaty to be allowed to file her Statement of Defence.
He canvassed the view that the power to set aside a judgment given in default is discretionary. This discretion must be exercised judiciously guided by the principles in Williams and Ors. v. Hope-Rising and Voluntary Funds Society (1982) 1-2 SC 145: the reasons for the appellant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence; whether there had been undue delay in making the application to set aside the judgment so as to prejudice the parties in whose favour the judgment subsists.
The others include the questions 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; whether the applicant’s case is manifestly unsupportable. There is, also, the question whether the applicant’s conduct throughout the proceedings, that is, from the service of the writ upon him to the date of judgment, has been such as to make his application worthy of a sympathetic consideration.
He noted that this has been the practice of the Court for years, Mohammed v. Hussen (1999) 1 SC 1, 23; Idugboe and Sons Co Ltd. v. Macaulay (1976) 2 FNR 202, 206-207; Teno Engineering Ltd. v Adisa (2005) 3 SCM 202, 206-207; Idam Ugwu v. Aba and Ors. (1961) All NLR 438, 439.
He explained that the appellant’s complaint in this matter was non-service of the court process on her. In his view, if the complaint was true, it meant that she was not aware of the action against her, citing paragraph 7 of her supporting affidavit. He maintained that the respondents filed a counter-affidavit of 19 paragraphs. He explained that the appellant did not present any rebuttal evidence before the lower court, citing paragraph 16 of the counter-affidavit of the respondents. He referred to paragraph 5 of the affidavit in support of the appellant’s motion. There, the appellant averred that her lawyer had earlier handled a case for her in respect of the subject-matter of the appeal.
He drew attention to paragraph 16 of the counter affidavit. It was deposed therein that throughout the proceedings in this matter the very lawyer was always present in court but chose to wait until judgment was delivered. He noted that the averment remained un-challenged. Thus, the court would be entitled to act on it. He, further, observed that the same counsel is representing the appellant in this appeal. In his view, it is difficult to believe that Counsel did not apprise the appellant before judgment was delivered, Arabambi and Anor. v Advance Beverages Ind. Ltd. (2005) 12 SCM 75.
He canvassed the view that the best evidence of service of court process is the affidavit of service deposed to by the bailiff of the Court, Nigeria Navy v. Daraki (2006) 4 NWLR (pt 969) 69, 80; I.B.W.A. v. Sasegbon (2007) 16 NWLR (pt. 1059) 195, 218. The lower court observed that there was an affidavit of service deposed to by Olumide Ogunronbi, Senior bailiff of the High Court of Lagos State in its records. The said bailiff averred that on August 15, 2006, the court process in this matter was posted on the entrance of the defendant’s house at No. 66, Adeoye Street, Bariga, Lagos.
He submitted that where there is proof of service on a party by means on an affidavit of service sworn to by a bailiff or an officer of court, the only acceptable way of challenging or rebutting the presumption of service is by a counter-affidavit to controvert the affidavit of service. The appellant’s failure to file such a counter-affidavit was fatal to her case. Hence, her oral evidence on the hearing date that she was not served with the court processes in the suit could avail her, Fatokun v. Famade (2003) 1 NWLR (pt 802) 431, 447-450. He urged the court to uphold the decision of the lower court that there was proper service in this matter.
He took the view that a party demanding that a judgment or ruling in default be set aside must show that he has a good defence. He contended that, without the appellant showing a supportable defence, the court would not set aside the judgment. Thus, the affidavit evidence must disclose a good defence. The affidavit in support of the application of the appellant failed to show this, Williams and Ors. v. Hope Rising and Anor. (supra); Idam Ugwu v. Aba and Ors. (supra).
He noted that in practice, a copy of the Proposed Statement of Defence is, usually, attached to the motion to set-aside the default judgment. The appellant, in his view, failed to do so. The consequence was that the court could not determine whether the appellant had a defence on the merit or not. This rendered, in his submission, the appellant’s application worthless, citing F. Nwadialo, Civil Procedure in Nigeria (Second edition) 455.
He explained that the lower court took oral evidence. After due assessment and evaluation of the evidence of the respondents, judgment was given. In his view, therefore, it was a judgment on the merit, Usikaro v. Itsekiri Land Trustees (1991) 2 NWLR (pt. 171) 173. To set it aside, the appellant must show good defence. The exercise of a discretion to set aside a judgment of this kind and order a new trial was not based on mere fantasies, Fatokun v. Famade (supra) 448-449; Idugboe and Sons (supra) 126.
He, further, maintained that the conduct of the appellant during the hearing of this action did not deserve sympathy. He cited paragraph 9 of the affidavit in support of the motion (page 26 of the record). There, the appellant averred that No. 66 Adeboye Street, Bariga, Lagos, is the residence of the commissioner of Police with all “security apparatus.” With the police men on guard, therefore, the court bailiff could not have gained access to the main entrance of that house without their knowledge.
He observed that no policeman deposed to any affidavit that it was part of his duty to prevent court officials from performing their lawful duties. He urged the court to hold that the appellant was aware of this action and decided to ignore it. Her lawyer, who had been in charge of the property, attended court throughout the proceedings. He maintained that a court has the discretionary power to set aside its judgment. As such, an appellate court will not disturb the decision of a lower court in the exercise of the court’s discretion unless it was wrongly exercised.
In the instant case, the lower court found as a fact that the court process was, duly, served on the appellant. More importantly, the appellant’s affidavit in support of her motion to set-aside the judgment did not disclose any defence much less a defence on the merit. He urged the court to disallow this appeal.
RESOLUTION OF THE ISSUES
The appellant’s brief distilled five issues for the determination of this appeal. In our humble view, issues one -four, sufficiently, capture her grouse against the ruling of the lower court. The four issues, and the fifth issue, can be, conveniently, taken together. The main agitation of the appellant is the complaint of non-service which runs through the four main issues. We shall, therefore, resolve all the above issues together. Her case is that she was not served with originating processes at the lower court: an omission which was not only a breach of her constitutional right to fair hearing, but which, ipso facto, occasioned a miscarriage of justice.
With regard to issue one, the appellant impugned the ruling of the lower court, particularly, its reasoning that she did not file a counter affidavit to challenge the averment of the bailiff who, allegedly effected the order for substituted service.
In the said ruling, the lower court reasoned thus:
…the said affidavit of service has not been rebutted because there is no counter affidavit in its rebuttal. The said affidavit of service is therefore presumed as proper service of the processes of this case on the Defendant and I so hold. I am in total agreement with learned counsel to the respondents’ submission that where in a proceeding the question arises whether or not the processes of the court have been served, it will be a strange thing to ignore the proof of service afforded by its own record in the proceeding and hold that such processes have not been served, see, Nigeria Navy v. Madaki (2006) 4 NWLR (pt 969) 69, 80. In view of the foregoing, the argument that the defendant was not served with the processes of this action is untenable and is therefore unacceptable to this Honourable Court and I so hold.
[Page 44 of the record]
From all indications, the lower court lost sight of the fact that the said counter affidavit (to be found on pages 32-34 of the records) was a reaction to the averments contained in the antecedent affidavit in support of the application, (pages 24-26 of the records). Indeed, the appellant deposed in paragraph 7 of the said affidavit that:
7. That I was never served any court processes and therefore could not have been aware of the pendency of this suit against me;
10. That I state categorically with all honesty that I did not set my eyes on any of the court processes that were alleged to have been pasted (sic) at the main entrance of No. 66 Adeboye Street, Bariga-Lagos.
In paragraph 11, she deposed further that:
11. That if the plaintiff (sic) wanted to be honest with the services of the processes in this case they would have asked for substituted service against my father and my counsel who prosecuted the recovery of the said No. 4 Hospital Road, Okitipupa against the plaintiffs’ family at the Rent Tribunal, Okitipupa.
These depositions prompted the reactions of the respondents in paragraphs 8 and 9 of the said counter affidavit. In effect, if the lower court had been more circumspect, it would have found that it was confronted with two, irreconcilably, conflicting accounts relating to the service of the said processes. Thus, confronted with the appellant’s disclaimer of service of the above processes, through substituted means, as alleged by the bailiff in the affidavit of service, it was under obligation to call oral evidence for the resolution of the conflict in the two divergent depositions before it.
Clearly, there were divergences in the depositions in the appellant’s affidavit in support on the application and in the bailiffs affidavit of service. It cannot be gainsaid that the question whether the service of a court process has been effected or not is a question of fact. In our view, oral evidence was the only appropriate means of ascertaining the true position with regard to the alleged service, Mohammed v. Mustapha (1993) 5 NWLR (pt 292) 222, 232.
The lower court was, definitely, in error to have assumed that the bailiff’s averments in the said affidavit of service were so sacrosanct that they should be accorded the deference due to the magisterial pronouncements of the oracle of Delphi. That should not have been so. In the face of the appellant’s strident refutation of the bailiff’s claims, the said affidavit of service should not have been treated as an irrefutable or conclusive proof of service,
Wappah v. Mourah (2006) 18 NWLR (pt 1010) 18, 45.
Where, as in this case, the affidavit of service is challenged, oral evidence is mandatory. The deponent, in such situations, becomes a vital witness. As such, when such a deponent (as the bailiff in this case) is not called, grave doubts arise as to whether or not service was, actually, effected, Anyoha and Ors. v. Chukwu (2007) LPELR-CA/PH/203/2001; (2008) 4 NWLR (pt) 1076.
We agree that, as a general proposition, it would be correct to assert that where there is proof of service, by means of an affidavit of service, sworn to by a bailiff or an officer of court, the party concerned ought to swear to a counter affidavit to controvert that affidavit of service, Fatokun v Somade (2003) 1 NWLR (pt 802) 431, 447; IBWA v. Sasegbon (2007) LPELR-CA/L/457 /2005.However, the situation here is, entirely, different.
The appellant (as defendant at the lower court) filed an application praying the court set aside its default judgment in a land matter on the ground, inter alia, that she was not served with the processes of court, She was, thus, challenging the affidavit of service sworn to by the bailiff. By that averment, she had raised grave doubts as to whether or not service was, actually, effected on her, Anyoha and Ors. v. Chukwu (supra).
The averments in the counter affidavit were thus reactions to the appellant’s rebuttal of service. In view of the appellant’s strident refutation of the bailiff’s claims, the said affidavit of service should not have been treated as an irrefutable or conclusive proof of service, Wappah v. Mourah (2006) 18 NWLR (pt. 1010) 18, 45. Oral evidence was mandatory and the deponent had become a vital witness to the resolution of the impasse. After all, it has been held that where there is a dispute as to service, the court should resolve it before proceeding to the hearing of the case, BDC Ltd. v. ADC (NIG) Ltd. (1972) All NLR 157, 162.
It must, always, be remembered, as settled on the authorities, that the object of the service of all originating processes is to notify the defendant of the pendency of a suit against him. The aim is that he would not be taken by surprise. If he is served, he would be, sufficiently, equipped to prepare his defence, if he wishes to do so.
As a result, failure to serve him with such a process, where service of a process is legally required, in accordance with the law, is a fundamental flaw. A person affected by any judgment, eventuating from an un-served process, is entitled, ex debito justitae, to have it set aside as a nullity, Obiomonure v. Erinosho (1966) 1 All NLR 250; Mbadinuju v. Ezuka (1994) 10 SCNJ 109; Sken Consult v. Ukey (1980) 1 SC 6; Adeigbe v. Kusimo (1965) NMLR 284.
Service of the originating process has been held to be a condition precedent to the exercise of jurisdiction by the Court out of whose registry the originating process was issued, National Bank v. Guthrie (Nig) Ltd. (1993) 3 NWLR (pt. 284) 643; (1993) 4 SCNJ 1; (1993) LPELR-SC.107/1987.
What is more, the cossus belli of the matter before the lower court was the house and appurtenances known as No 4 Hospital Road, Okitipupa. The respondents (as plaintiffs) prayed the lower court for:
A Declaration that the plaintiffs are the customary owners of the Five-room Bungalow with a sitting room situate, lying and being at 4 Hospital Road, Okitipupa and for same reason, the persons entitled to apply and obtain Statutory Right of Occupancy of the said building.
In effect, the default judgment of the lower court awarded the said property to the respondents herein even when, as contended by the appellant, she was not served with the originating processes. Here, we can do more than re-iterate the wise counsel of Nnaemeka Agu JSC. In Usikaro v. Itsekiri Land Trustess (1991) 2 NWLR (pt.171) 173, the distinguished jurist, now of the Blessed Memory, intoned, most percipiently:
I must note that the subject-matter of the suit is land. This Court has, in the case of Chief James Ntukidem & Ors. v. Chief Asuquo Oko & Ors. (1986) 5 NWLR (pt. 45) 909, emphasized the need to decide land cases on their merits. I need hardly reiterate it here. I appreciate the fact that it can be very irritating, in fact annoying, for a Judge to come to court ready to hear a case, particularly at a special fixture, and a party or its counsel just decides to frustrate the hearing. But the court must balance this feeling, justifiable as it may be, with the consideration that land litigations are still very sensitive issues in most parts of Nigeria. An uncanny decision in a land case can lead to a breakdown of law and order.
(Italics supplied for emphasis)
In all, we find considerable merit in the appellant’s complaint in this issue.
We, accordingly, resolve it in her favour.
With regard to the second issue, it was contended that the lower court’s failure to consider the appellant’s affidavit had robbed it of the opportunity of a fair assessment of the case. At page 44, the lower court agreed with the respondents’ submission that “where, in a proceeding, the question arises whether or not the processes of the court have been served it will be a strange thing to ignore the proof of service afforded by its own record in the proceeding and hold that such processes have not been served.”
True, indeed, there are authorities for the proposition that an affidavit of service in the court’s records is prima facie proof of service. As such, the court can even take judicial notice of it and its contents, AG Anambra and Ors. v. Okeke and Ors. (2002) LPELR-SC.102/1997; (2002) 12 NWLR (Pt. 782) 575; (2002) 5 SC (pt 11) 58, citing Osofile v. Odi (No. 1) (1990) 3 NWLR (pt. 137) 130.
However, by the appellant’s averments in her affidavit in support of the application to set aside the default judgment, she had put the authenticity of the bailiff’s affidavit of service in issue, see, per Ayoola JSC in AG Anambra and Ors. v. Okeke and Ors. (supra) at page 12 paragraphs A-C. Thus, the oral evidence of the bailiff was imperative, Mohammed v Mustapha (supra) 222, 225. As Rhodes-Vivour JCA (as he then was) held in Anyaho v. Chukwu (supra):
An affidavit of service becomes a rebuttable presumption of service if the defendant says he was not served. In such a situation, an affidavit or endorsement of service of the originating process is not conclusive proof of service. The burden of proving service lies on the person (usually the plaintiff) asserting that there was service and this is done by inviting the parties to call oral evidence and the vital witnesses to call are:
(a) For the plaintiff, the deponent to the affidavit of service, and any other witness to state that service took place as deposed in the affidavit of service and
(b) For the defendant, the defendant and his witnesses to state that there was no service on the defendant.
Put in other words, since the appellant’s affidavit (also in the court’s file) challenged the fact of service, the bailiff’s affidavit of service was no longer a conclusive or irrefutable proof of service. As we held earlier, confronted with the appellant’s disclaimer of service by substituted means, as claimed by the bailiff, the lower court was bound to call oral evidence to resolve the conflict in the affidavits before it.
After all, the issue as to whether a court process was served or not is a question of fact. Being a question of fact, therefore, oral evidence of it ought to have been given, Kaduna L. A. v Makudawa (1971) 1 NMLR 100; Mohammed v. Mustapha (supra). In our view, the lower was in error to have stamped the said bailiffs affidavit with the imprimatur of cogency or irrefutability, Wappah v Mourah (2006) 18 NWLR (pt. 1010) 18, 45.
As we noted earlier, it is clear from pages 17; 18 and 19 of the records that no hearing notice was ever issued for service on the defendant. From those pages of the records, it is evident that none was ever served on her for the hearing of the case. From the same pages of the records, it is, equally, clear that she had no notice of the date of the delivery of the said judgment. For the benefit of the lower court, and other lower courts, we re-iterate the position that the issue of service of the processes in a matter, including hearing notices on a day to day basis for a party that was not in court, without its fault, is an essential aspect our procedural law.
It is indeed a jurisdictional issue. It is a condition precedent to the competence of a court’s assumption of jurisdiction and adjudication over the legal rights of the litigants in the matter. As such, non-service of such processes is the type of defect which vitiates the entire proceedings of a court and renders same a nullity, Skenconsult (Nig.) Ltd. and Anor. v. Ukey (1981) 1 SC 6; Agip Nig. Ltd. v. Agip Petrolli International and Ors. (2010) 181 LRCN 119, 156; Tsokwo Motors Nig. Ltd. v. UBA Plc 33 NSCQR 33, 51; Odita v. Okwudinmo (1969) 1 All NLR 228; Union Beverages Ltd. v. Adamata (1990) 7 NWLR (Pt 162) 348; ACB Plc v. Losade Nig. Ltd. (1995) 7 NWLR (pt. 405) 26, 44.
From the above position, we entirely endorse the contention of the appellant with respect to the third issue that the lower court erred when it wished away the affidavit in support of the application to set aside the default judgment. The appellant’s submission is well-taken that the lower court was bound to evaluate the depositions in the affidavits before it.
True indeed, this is one prerogative which the lower court enjoys and its exercise is seldom disturbed except when the wrong principles were employed or when extraneous materials were taken into account, Oyadiyi v. Olaniyi (2005) 5 NWLR (pt. 919) 561; Ndomo-Egba v. ACB Plc (2005) All FWLR (pt. 283) 152; (2005) 14 NWLR (pt. 944) 79. It is, precisely, because the lower court failed in the exercise of this prerogative that we take it as our binding duty to intervene by setting the default judgment aside to avoid the perpetuation of the miscarriage of justice. We, therefore, resolve this issue in favour of the appellant.
From our finding that the lower court was in error to have glossed over the affidavit in support of the appellant’s application, we entertain no doubt that this was in breach of the appellant’s right to fair hearing as ordained in section 36 (1) of the Constitution of the Federal Republic of Nigeria, Adigun v. A.G. Oyo State (1987) 1 NWLR (pt. 53) 678; Akinfe v. State (1988) 3 NWLR (Pt. 85) 729, 753; Duke v. Government of Cross River State (2009) All FWLR (pt. 488) 252; Ntukidem v. Oko (supra). We, also, resolve this issue in favour of the appellant.
With regard to issue five, we note that the appellant did not show in what respect the delivery of the ruling almost one year after the final addresses had occasioned a miscarriage of justice on her, section 294 (5) of the Constitution.
It was her counsel, who, in his written brief (paragraph 7. 02, page 7) canvassed the point. However, it is a known fact that final addresses, no matter how brilliant or alluring, cannot form or be valued as evidence nor can they supplant the status of evidence in the proceedings, Olufosoye v. Fakorede (1993) 1 NWLR (pt 272), 747, 746; Nwadairo v. SPDC (1990) 5 NWLR (pt. 150) 322, 339; Odebeko v. Fowler (1993) 1 NWLR (pt. 308) 637; Ishola v. Ajiboye (1998) 1 NWLR (pt. 532) 71, 93; Aro v. Aro (2000) 14 WRN 51, 65.
In the absence of any deposition by the appellant as to how the long delay in delivering the said ruling occasioned a miscarriage of justice on her, that alone would be sufficient ground to upturn the ruling. Section 294 (5) of the Constitution provides that:
The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining suffered a miscarriage of justice by reason thereof.
Now the respondent, citing and relying on Hope Rising (supra) contended that the power to set aside a default judgment is discretionary. We entirely agree. However, we draw attention to Ntukidem and Ors. v. Asuquo Oko and Ors. (1986) 5 NWLR (pt. 45) 979; (1985) LPELR-SC.141/1985, where Kazeem, JSC, delivering the Leading Judgment, held that it was well settled that if judicial discretion had been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower court, the general rule is that an appeal Court will not ordinarily interfere.
His Lordship noted that there are exceptions to this rule. As the distinguished jurist acknowledged, it is in this area that one cannot lay down a hard and fast rule as to the exercise of judicial discretions. The moment one does that “the discretion of the Judge is fettered,” citing Jones v. Curling 13 QBD 262. The guiding principle in this respect is that the discretion, being judicial, must at all times be exercised not only judicially but also judiciously on sufficient materials, Saffieddine v. C.P. (1965) 1 All NLR 54, 56; Ugboma v. Olise (1971) 1 All NLR 8.
In effect, an appeal Court may interfere with the exercise of judicial discretion in certain circumstances. They include circumstances where it is shown that there has been a wrongful exercise of the discretion. The common example is where the tribunal acted under a misconception of law. The other example is where it acted under a misapprehension of facts. Here, it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that were relevant.
An appellate court would, also, intervene where a lower court exercised or failed to exercise its discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere, Enekebe v. Enekebe (1964) 1 All NLR 102, 106; Saffiedine v. C. P. (supra); Demuren v. Asuni (1967) 1 All NLR 94, 101; Mobil Oil v. Federal Board of Inland Revenue (1977) 3 SC 97, 141; Sonekan v. Smith (1967) 1 All NLR 329; Solanke v. Ajibola (1968) 1 All NLR 46, 52.
From all we said above, it cannot be gainsaid that the lower court exercised its discretion on the wrong principles. Its ruling, refusing the appellant’s application, grossly, underrated the potency of her disclaimer of the originating processes on her.
Counsel for the respondents, equally, (at page 3 of the brief) drew attention to the fact that the appellant stated that her lawyer had earlier handled a case for her in respect of the subject matter of the appeal. The reference here was to paragraph 5 of the affidavit in support of the appellant’s application. There, she deposed that “That I immediately informed my lawyer, Barrister Olafioye Ogunnowo, who had previously handled a case for me in respect of the said No 4 Hospital Road, Okitipupa, at the Rent Tribunal,” (italics supplied).
Counsel, further, drew attention to paragraph 16 of the counter affidavit. There, the respondents averred that throughout the proceedings, the very lawyer was always present in court “but chose to wait until judgment was delivered,” (page 4 of the brief). He contended that that “it is the same counsel that is still handling this appeal for the appellant. Against this backdrop, it is difficult to believe that counsel did not apprise the appellant before judgment was delivered,” (page 4 of the brief).
With due respect, this submission is not only tendentious it is actually misleading. It is not the responsibility of counsel, who had handled a matter for a client previously, to apprise her of originating processes in all other matters. Indeed, as already shown above, failure to serve originating and other processes have far-reaching consequences, Skenconsult (Nig.) Ltd. and Anor. v. Ukey (supra); Agip Nig. Ltd. v. Agip Petrolli International and Ors. (supra); Tsokwa Motors Nig. Ltd. v. UBA Plc (supra); Odita v. Okwudinma (supra); Union Beverages Ltd. v. Adamata (supra); ACB Plc v. Losade Nig. Ltd. (supra).
What is more, even the presence of the appellant in court, without more, would not suffice. As Mukhtar JSC (as she then was) held in Olorunyolemi v. Akhagbe (2010) 8 NWLR (pt. 1195) 48, 80:
The fact that a party was in court on the day a matter is slated to come up is not necessarily a confirmation that the party was actually served… There must be actual proof of service on the necessary parties i.e. the evidence of receipt vide signature of the party personally or his counsel, or an affidavit of service sworn to by the person who effected the service.
(italics supplied for emphasis), see, also, Habib Nigeria Bank Ltd. v. Wahab Opomulero and Ors. (2000) 15 NWLR (pt. 690) 315.
From all we have said above, we find considerable merit in this appeal. We are, therefore, under a binding duty to allow it. Appeal is, hereby, allowed. We set aside the above default judgment and the said ruling. We enter an order directing that the matter be remitted to the Chief Judge of Ondo State for reassignment to another Judge of the High Court who shall hear the matter de novo. N30, 000 costs in favour of the appellant.
KUDIRAT MOTONMORI OLATOKUNBO KERE-EKUN, J.C.A.: I have had the advantage d reading in draft the judgment of my learned brother, NWEZE, JCA just delivered. I agree entirely with the well-articulated reasoning and conclusion therein.
An affidavit of service sworn to by the bailiff of the court (or any other person effecting service of a court process) is prima facie proof of service of the relevant process. However the presumption is rebuttable. Where the party entitled to be served with such process avers that he was not served the court must go a step further and take oral evidence to resolve the issue, unless it is possible to resolve the conflict on the basis of the documentary evidence before the court, for example, where the affected party exhibits a copy of his international passport showing that he was out of the country at the material time and could therefore not possibly have been served.
The burden of proving service lies on the person making the assertion. See: Anyoha v. Chukwu (2008) 4 NWLR (1076) 31 @ 45 E – H; Ekuma v. Silver Eagle Shipping Agencies (PH) Ltd. (1987) 4 NWLR (65) 472.
In the instant case the court ought to have called for oral evidence to resolve the conflict in the affidavit evidence before it. Failure to call for such evidence means that the appellant had successfully rebutted the presumption of service on her. As rightly stated by my learned brother in the lead judgment, the position of the law is that where personal service of a process is required by law and such service is lacking, it is a fundamental defect that goes to the root of the court’s jurisdiction to entertain the suit, thereby rendering the proceedings and any order made therein a nullity. The affected party is entitled to have the proceedings and/or order set aside or debito juticiae. See: Kida v. Ogunmola (2006) 13 NWLR (997) 377: Obimonure v. Erinosho (1966) 1 ALL NLR 250: Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6.
It is for the above reasons and the fuller reasons eloquently advanced in the lead judgment that I also allow the appeal. I abide by the consequential orders contained in the lead judgment including the order for costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read in advance the lead judgment just delivered by my learned brother, C. C. NWEZE JCA. I agree with his reasoning and conclusions. I too find merit in the appeal. I allow it. The ruling and the default judgment is set aside. I abide by the consequential orders in the lead judgment including the order as to costs.
Appearances
O. OgunnowoFor Appellant
AND
O. O. J ShemudaraFor Respondent
