MULTICHEM INDUSTRIES LIMITED v. COMRADE HARRISON MUSA & ORS.
(2013)LCN/5902(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of February, 2013
CA/L/452/08
RATIO
“The law is that evaluation of evidence and the ascription of probative value to same reside within the province of the trial court that sees, hears and assesses the witness. Thus where a trial court unquestionably evaluates and justifiably appraises the facts, it is not the business of the appellate court to substitute its own views for the view of the trial court. See Mafimisebi v. Ehuwa (2007) 2 NWLR Pt 1018 384 at 433 paras B-F; Edjekpo v. Osia (2007) 8 NWLR Pt 1037 635 at 673 paras C-F.” Per IYIZOBA, J.C.A.
“The law as rightly submitted by learned counsel for the Respondents is that an affidavit of service is prima facie evidence of service. See Okeke v Attorney General Anambra State, (1997) 9 NWLR Part 519 at Page 123 ratio 16, where this court held that “where service of a court process is in dispute, a bailiff can discharge the burden by swearing to an Affidavit of Service”. It is trite that the only way to challenge the averments in an affidavit is by filing a Counter-Affidavit. It is not correct however as submitted by the Respondent’s Counsel that the only acceptable way of challenging service of a process is by filing a Counter-Affidavit to controvert the affidavit of service. Learned counsel for the appellant is right that an Affidavit of Service can be challenged by a motion supported by an affidavit challenging the service. The case of Fatokun v Somade (2002) FWLR Pt 93, 1989 cited by Respondent’s Counsel is not apposite as an attempt was made in that case to dispute an affidavit of service orally without filing an affidavit. Filing a motion supported by an affidavit to dispute service which led to the bailiff filing counter-affidavits achieves the same objective as when a counter-affidavit is filed.” Per IYIZOBA, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
MULTICHEM INDUSTRIES LTD. Appellant(s)
AND
1. COMRADE HARRISON MUSA
2. COMRADE BAMIDELE EMMANUEL
3. COMRADE KAZEEM AJALA
4. COMRADE SAMUEL EHIDIAMEN
5. COMRADE ANDREW OKERE
6. COMRADE AGHIODE EMMANUEL
7. COMRADE MICHEAL SULE
8. COMRADE ALONGE FOLARIN
9. COMRADE GBORE PETER
10. COMRADE ADEOGUN THOMPSON
11. COMRADE TITILAYO AJATI (MRS)
12. COMRADE POLYCARP EHON
13. COMRADE SEGUN OLANIPEKUN
14. COMRADE DAVID FESTUS
15. COMRADE EMEKA IHEZUE
16. COMRADE YINKA OLAGUNJU
17. COMRADE IKHIMIEN JOHN
18. COMRADE BAKARE ANTHONY
19. COMRADE AZEEZ JIMOH
20. COMRADE MONDAY ASHIEN
21. COMRADE ADEBAYO IBRAHIM
22. COMRADE SAMUEL ENEJO
23. COMRADE CHRIS ANYANWU
24. COMRADE SUNDAY IRUBA
25. COMRADE SUNDAY IWU
26. COMRADE DONATUS ONUNWA
27. COMRADE ONYEKASHI AKOMA
28. COMRADE FUNKE OYEDELE (MRS)
29. COMRADE AMMANUEL ABAH
30. COMRADE KUNLE IGEH
31. COMRADE MONDAY UNWANA Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Oke-Lawal J. of the High Court of Lagos State in Suit No. ID/515/06 delivered on the 25th day of April 2008 dismissing the Defendant/Appellant’s application to set aside the service on it of the Originating Summons.
On 28/4/06, the Claimants/Respondents took out a writ against the Defendant/Appellant, their former employer, claiming general damages for breach of duty of care and/or compensation for injuries and losses occasioned by the hazardous chemicals they were compelled to handle in the course of employment without protective gadgets or safety measures. The Respondents claimed that the Writ of Summons, Statement of Claim and other front loaded processes were served on the Defendant/Appellant by a bailiff of the Lagos State High Court by name Sola Oladipo by delivering same to the receptionist of the Appellant Company on 10/5/06. He subsequently filed an affidavit of service on 15/5/06. On 16/6/06, the Respondents filed another process titled “additional List of Exhibits….” They further claimed that another bailiff, Jide Craig was assigned to serve this process and that he did serve same on the Defendant/Appellant through the same receptionist of the Appellant Company on 16/6/06. He subsequently also filed an affidavit of service dated 21/6/06. The Respondents claimed that the Defendant/Appellant accepted service of this later process by Jide Craig but denied the former service by Sola Oladipo. On 9/1/07, the Appellant filed an application by motion on notice to set aside the service of the originating process by Sola Oladipo. Following conflicts in the affidavit evidence, the trial court ordered a trial to determine the issue of service. At the end of the trial, the court delivered its ruling dismissing the Appellant’s application.
The Appellant, dissatisfied with the said Ruling, filed the present appeal by notice of appeal containing five grounds. From the five grounds of appeal learned counsel for the Appellant distilled 3 Issues for determination as follows:-
(i) Whether or not from the evidence put forward at the trial there was service of the originating processes on the applicant.
(ii) Whether or not service of originating processes on a receptionist amount to proper service on a limited liability company.
(iii) Whether or not the lower court was correct to have ordered the Appellant to file its pleadings when it is yet to be served with the originating processes.
The Respondents on their part identified the following sole issue:-
(i) Whether or not the lower court was right in holding that there was proper service of the originating process on the Defendant/Appellant.
The sole issue formulated by the respondent’s counsel is more succinct and adequately captures the essence of this appeal. I shall therefore adopt the respondent’s sole issue in the determination of this appeal.
APPELLANT’S ARGUMENTS
The crux of the argument of the Appellant is that the findings of the lower court are at variance with the evidence before it and perverse in the sense that the conclusion that the receptionist was served with the originating processes was not borne out by the evidence. In support of this argument the appellant’s counsel submitted that the bailiff in his evidence could not identify or describe the Receptionist/Secretary he claimed to have served and that the processes were never signed for by the said Receptionist/Secretary or anyone whatsoever from the appellant Company. Appellant’s Counsel contended that contrary to the bailiff’s evidence, the receptionist/secretary of the appellant testified that she never saw the bailiff on the said days mentioned by the bailiff or any other day, and that she did not receive any process at any time from the bailiff. He further submitted that the appellant’s visitors’ register admitted in evidence as Exhibit G-G4 at the trial had no record of the bailiff visiting on any of the 5 days mentioned by the bailiff in the counter-affidavit and that the bailiff under cross-examination could not explain why his name did not appear in the visitors register though the names of other visitors appeared in the register on the days he claimed to have visited the appellant Company. Learned Counsel submitted that the finding of the lower court that Exhibits G-G4, the Visitors Register “is unreliable because another bailiff served the receptionist with the ‘Additional list of Exhibits’ and did not sign the register”, when in fact the evidence in this case was that the said “Additional list of Exhibits” was dropped at the gate as different from service on the Receptionist. Counsel contended that in fact, the Visitors’ Register is the single most important, crucial and pivotal evidence in the resolution of any conflicting evidence of PW 1, the Bailiff who claimed to have served the receptionist and DW2, the receptionist who claimed that she never saw the Bailiff. Counsel submitted that the court is duty bound to accept Exhibit G-G4 i.e. the Visitors’ Register as it stood unchallenged and uncontroverted. It is trite that unchallenged evidence must be accepted save where such evidence is patently perverse or is improbable to the fact and circumstances of the case.
The Appellant’s Counsel posited that in finding that “in observing the witnesses for the Defendant in court, there was indeed attempt by them to conceal facts during cross-examination and they deliberately avoided answering questions put by counsel”, the lower court failed to identify what questions were avoided or sought to be avoided by the defendant’s witnesses. Learned counsel argued that the Appellant was forthright in seeking for justice by informing the claimant through two letters to their counsel that it was yet to be served with the originating processes; and by its counsel showing preparedness to accept service in court which was however rebuffed by the Respondent’s Counsel. Learned Counsel urged this Court to resolve the question of whether the receptionist was served with the originating processes in favour of the appellant on the ground that it is not enough for the trial judge to say that she believed that the receptionist was served, without any evidence supporting such belief. Counsel relied on the cases of Okonkwo v CCB NIG. Plc. (1997) 6 NWLR Pt 507, 48 Ratios 52-53 and Kwajaffa & Ors v Bank of the North (2004) Vol 8 MJSC 106 at 126, paras D-F in support of this contention and in particular the observation in Okonkwo v CCB NIG. Plc. (Supra):
“Where the principal facts of a case look improbable when considered against the background of their surrounding circumstances, they cannot induce belief and it will be wrong for a trial court in such circumstances to say “I believe” or “I am satisfied”. There is neither magic nor satisfaction in the word and expression “I believe” or “I am satisfied and they should not therefore be used as a sanctuary. Belief and satisfaction should represent the courts reaction towards facts and possibilities based on those facts”.
Counsel submitted relying on Salako v Alao (1994) 8 NWLR Pt 360, 47 at 51, Ratio 3, that where a trial court has failed or improperly evaluated the evidence before it, the appellate court will interfere to evaluate the evidence. Learned Counsel further submitted that in line with Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules 2004 and Section 78 of the Companies and Allied matters Act, 1990, service of Originating Process on a receptionist of a limited liability company is not proper service. In support of this contention, Counsel referred this Court to the case of Integrated Builders Ltd. v Damzaq Ventures Ltd (2005) 2 NWLR, Pt 909, 97 at 115 paras C-H where counsel claimed the court held that service on a Secretary is not service on a responsible officer and the case of MTN Ltd v Bolingo Hotel Ltd (2004) 12 NWLR Pt 889, 117 126 at paras E-F, where proper officers were defined as Directors, Management staff, Legal Advisers and Company Secretaries. In conclusion learned counsel urged us to set aside the ruling of the lower court and the purported service on the Appellant of the writ of summons and other processes.
RESPONDENTS’ ARGUMENTS
Learned counsel for the respondents in his brief submitted that the position of the appellant’s counsel is not supported by law or the weight of evidence before the trial court. Counsel contended that though the appellant purported to deny service of the originating process, he did not file a counter-affidavit to challenge or rebut the affidavit of service (Exhibit A) filed by Bailiff Sola Oladipo. He argued that the law is that an affidavit of service is prima facie evidence of service. He cited the case of Integrated Builders v Domzag Ventures (Nig) Ltd. (2005) 2 NWLR (Pt 909), 97 at 115. He further submitted that the only recommended and acceptable way of challenging the presumption of such service by the party concerned is by filing a Counter-Affidavit to controvert the affidavit of service. He cited Fatokun v Somade (2002) FWLR, Pt 93, 1989, Ratio 4. Counsel pointed out the court’s position in this case that the failure of the appellant’s counsel to file a counter-affidavit is fatal to his case and that the appellant counsel’s oral argument that he was not served with the motion and other processes cannot avail him.
Counsel then posited whether in the absence of filing a counter-affidavit, the appellant’s counsel provided any other credible evidence to rebut the presumption of service of the originating process. In answer to this question respondent’s counsel submitted that learned counsel to the appellant having made heavy weather of the failure of PW1 to sign Exhibit G-G4 has failed to explain why the service of Exhibit E-E5 (Additional List of Exhibits) by bailiff Jide Craig was admitted in the appellant’s affidavit in support of the motion to set aside service though the said Jide Craig never signed Exhibit G-G4. Counsel observed that the later position canvassed by appellant’s counsel in the appellant’s brief that Exhibit E-E5 was picked at the gate of appellant company is an after-thought which was never pleaded and therefore goes to no issue. Counsel submitted further that DW1 stated under cross-examination that the appellant’s counsel told him that the document picked up at the gate was a court summon and that a court Summon is the Writ of Summons which forms part of the front loaded processes. Counsel further noted the finding of the trial Judge that “… Learned Counsel cannot receive List of Additional Exhibits and inform the witness that it is a summons”. Counsel referred to the comment of D. Okezie JCA (as he then was) on the role of the trial court in the evaluation of evidence in the case of Onuigbo v Nwekenson (1993) 3 NWLR( Pt 283) 533 @ 546 para C. Counsel called the attention of this court to the testimonies of both DW 1 and DW2 on pages 387 and 388 of the Record of Appeal that the appellant company receives an average of 30 visitors a day, whereas the highest number of visitors that signed Exhibit G-G4 on each of the days under reference was 5. Respondent’s Counsel opined that Learned Counsel for the appellant has failed to explain these inconsistencies in the evidence of the appellant’s witnesses and that this failure is fatal to the appellant’s application. Counsel concluded that Exhibit G-G4 is a contrived set of documents tendered to confuse the issues.
In response to the submission of the appellant’s counsel that service of an originating process on a receptionist is not proper service pursuant to Section 78 of the Companies and Allied Matters Act 1990 and Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules 2004, Counsel submitted that the use of the word ‘may in Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules 2004 postulates permissiveness and not obligation. On this point, Counsel cited the cases of Plateau Invest. & Property Dev. Co. Ltd v Ebhota (2001) FWLR, Pt 64, 374, Ratio 16 at 381-382; Ndili v Akinsumade (2000) FWLR Pt 5, 750, Ratio 30, at 764. Counsel submitted further that the correct interpretation of the said provision therefore is that Originating Process may be served on an organization by delivery to a director, secretary or other senior principal or responsible officer of the organization where practicable, otherwise, the process could be served on any other staff of the company found by the process server on the premises, most especially one detailed to receive correspondences on behalf of the company, like the DW2 in the instant case. Learned counsel urged us to dismiss the appeal and uphold the ruling of the court below.
APPELLANT’S REPLY
In his reply on law, learned counsel for the appellant submitted that it is not only by counter-affidavit that an affidavit of service can be challenged. Counsel argued that the appellant’s application dated 8th January 2006 is in fact a frontal challenge to the affidavit of service which was supported by several affidavits to which the bailiff responded by his own counter-affidavit. Counsel contended that what the law does not permit is to seek to dislodge an affidavit of service by an oral argument. Counsel submitted that Fatokun v Somade (2002) FWLR Pt 93, 1989 referred to by respondent’s counsel was inapplicable as it concerned attempt to rebut affidavit evidence of service with oral evidence. Counsel further cited the case of Kraus Thompson Organisation Ltd v University of Calabar (2004) 9 NWLR Pt 879, 631 at 656 para D-F in support of his argument that a corporation can only be served with documents to a director, trustee, secretary, or other principal officer of the corporate body.
RESOLUTION
I have carefully considered the arguments advanced by learned counsel. Without proper service of originating processes in a suit the court lacks the jurisdiction to entertain the suit. In Sken Consult v Ukey (1981) 1 S.C 6 at 26, Nnamani, JSC of blessed memory observed:
“The service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the court can have competence and jurisdiction. This very well accords with the principles of natural justice”.
The law as rightly submitted by learned counsel for the Respondents is that an affidavit of service is prima facie evidence of service. See Okeke v Attorney General Anambra State, (1997) 9 NWLR Part 519 at Page 123 ratio 16, where this court held that “where service of a court process is in dispute, a bailiff can discharge the burden by swearing to an Affidavit of Service”. It is trite that the only way to challenge the averments in an affidavit is by filing a Counter-Affidavit. It is not correct however as submitted by the Respondent’s Counsel that the only acceptable way of challenging service of a process is by filing a Counter-Affidavit to controvert the affidavit of service. Learned counsel for the appellant is right that an Affidavit of Service can be challenged by a motion supported by an affidavit challenging the service. The case of Fatokun v Somade (2002) FWLR Pt 93, 1989 cited by Respondent’s Counsel is not apposite as an attempt was made in that case to dispute an affidavit of service orally without filing an affidavit. Filing a motion supported by an affidavit to dispute service which led to the bailiff filing counter-affidavits achieves the same objective as when a counter-affidavit is filed.
The question however is whether the appellant adduced sufficient credible evidence to rebut the presumption of service of the originating process. After listening to the oral evidence of the parties to resolve the conflicts in the affidavit evidence and evaluating same, the learned trial judge was of the view that the appellant failed to adduce sufficient credible evidence to rebut the presumption. The law is that evaluation of evidence and the ascription of probative value to same reside within the province of the trial court that sees, hears and assesses the witness. Thus where a trial court unquestionably evaluates and justifiably appraises the facts, it is not the business of the appellate court to substitute its own views for the view of the trial court. See Mafimisebi v. Ehuwa (2007) 2 NWLR Pt 1018 384 at 433 paras B-F; Edjekpo v. Osia (2007) 8 NWLR Pt 1037 635 at 673 paras C-F. Where however a trial court fails in its primary duty of evaluation of evidence and making of primary findings of facts, an appellate court will interfere. Iriri v. Erhurhobora (1991) 2 NWLR (Pt. 173) 252. An Appellate Court will also interfere with the evaluation of evidence where the trial court erroneously does so or where the conclusion reached is not supported by the evidence on record. See Ayanru v Madillas Ltd (2007) Vol 7 MJSC 166 R 4. But an appellate court cannot reverse the findings of fact of a trial court on the evidence of witnesses unless such findings are perverse. See Okochi v Animkwoi (2003) 18 NWLR Pt 851 1; Osun State v Danlami Nig Ltd (2003) 7 NWLR Pt 818 72; Oduneye v The State (2000) FWLR, Pt 13, 2289, Ratio 7.
Appellant’s counsel had submitted that the findings of the lower court are at variance with the evidence before it and perverse in the sense that the conclusion that the receptionist was served with the originating processes was not borne out by the evidence. The appellant’s primary contention is that the bailiff did not sign the register exhibit G-G4 which shows that he did not visit the company on the days in question as all other visitors signed the register. He could not therefore have left the processes with the receptionist.
At page 400 of the Record of Appeal, the trial judge observed as follows:
“The evidence of PW1 is that the document sent to the lawyer was a summons. The issue of Exhibit G-which is that every visitor to the defendant company must sign it is unreliable because clearly another bailiff served the receptionist with the additional list of exhibits and did not sign the register”.
The trial judge further observed that:
“The evidence of the witness that an average of 30 visitors come to the defendant company and all sign the register is not supported by Exhibit G itself.”
Can it be said that the above findings of the trial judge were made without really evaluating the evidence of the witnesses? This is far from the case. The learned trial judge properly evaluated the evidence. For example the appellant in its counter-affidavit admitted service of the additional list of exhibits. It did not aver that the list was left at the gate. But when the issue arose that the bailiff who served the additional list of exhibits did not also sign the visitors register Exhibit G-G4, the appellant now claimed that the list was left at the gate. The appellant’s witness gave evidence that an average of 30 visitors come to the defendant’s company each day and that they all sign the register. But in Exhibit G-G4, not more than five visitors signed the register on the relevant dates. That is clear evidence that not all visitors sign the register. It is inconceivable to conclude that because the bailiff did not sign the visitor’s book, he could not have come to the office of the appellant to effect service on the receptionist. The appellant anchored its entire case on the failure of the bailiff to sign the visitor’s register. The appellant lost sight of the fact that the registers having at all material times been in their custody, the evidence can not be given the kind of weight they are advocating. After all learned counsel for the respondents did submit that exhibits G-G4 are a contrived set of documents tendered to confuse the issues.
Learned counsel for the appellant had further submitted that it is not enough for the trial judge to say that he believed that the receptionist was served, without any evidence supporting such conclusion. Learned trial judge at page 400 of the Record of Appeal, commented as follows:
“I must state that in observing the witnesses for the defendant in court, there was in deed attempts by them to conceal facts during cross-examination and they deliberately avoided answering questions put by counsel.
I believe the testimony of the Claimant’s witnesses in preference to the defendants. I find that the defendant witnesses were not truthful before the court”.
The above observation of the trial judge is obviously the result of the appraisal of the evidence of the witnesses. His Lordship saw the witnesses, listened to them, watched their demeanour and assessed their credibility. Such functions are the exclusive preserve of a trial court. I agree with learned counsel for the respondents that such questions of credibility are best resolved by the trial judge who is in a vantage position to and had the opportunity to observe the demeanor of the witnesses as they testified. Where a trial court clearly evaluated the evidence of the parties and justifiably appraised the facts, it is not the business of this court to substitute its own views of the facts for those of the trial court. See Fasikun II v. Oluronke II (1999) 2 NWLR (Pt. 589) 1. This court has not had the privilege of watching and hearing the witnesses testify and is therefore not in a position to determine the credibility of the witnesses. See the case of Nnadozie v Mbagwa (2008) MJSC Vol 3, 93, Ratio 5.
There is clearly sufficient evidence on record from which the trial court made its findings of facts. For example the trial court at page 398 of the Record of Appeal observed:
“having had the opportunity to watch the demeanor of the witnesses as they testified before the court, I find the evidence of Chief Edwin Ikebunna………. lacking in credence. His evidence that he did not open the stapled document purportedly handed to him by the security but knew it was from the court because it was transparent leaves room for doubt”.
From the evidence led at the hearing as shown in the Record of Appeal and the submissions of counsel, I am satisfied that the trial judge properly evaluated and appraised the evidence before the court. The appellant has not shown that the conclusion reached is not supported by the evidence on record. It is only where a trial court fails in its duty of evaluation of evidence and finding of facts that an appellate court will interfere with such evaluation and findings of facts. See Anyanru v Mandillas (2007) MJSC Vol 7, 163, Ratio 4.
The learned trial Judge fulfilled his duty by first evaluating and then putting the totality of the evidence on an imaginary judicial scale in order to see which party’s evidence has more weight or preponderates. See Osuji v Ekeocha (2009) 16 NWLR Pt 1166, 81 at 91, Ratio 14.
This court declines the invitation of the appellant to interfere with the findings and conclusions of the trial judge.
The question now is whether service of an originating process on a receptionist is proper service. Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure Rules) 2004 provides:
“Subject to any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or other processes requiring personal service may be served on the organization by delivery to a director, secretary, trustee or other senior, principal or responsible officer of the organization, or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction”.
Section 78 of the Companies and Allied Matters Act provides that a court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at or sending it by post to the registered office or head office of the company.
Learned Counsel for the Appellant had argued strenuously, citing many authorities that service on a receptionist is not proper service. Order 7 Rule 9 set out above states that a court process may be served on a responsible officer of a company in addition to other officers stated therein. A staff that would be addressed as a responsible officer would differ from company to company. In his oral testimony on page 387 of the Record of Appeal, DW1 testified that it is within the scope of employment of DW2 as a Receptionist to receive documents on behalf of the appellant Company. This fact was confirmed by DW2 in her own testimony. I am of the view that a person who had been entrusted with the responsibility of receiving documents on behalf of an organization as part of her duties must therefore be regarded as a responsible officer of the organisation. I agree with the finding of the trial judge that service of the originating process was done in compliance with the rules of court and the Companies and Allied Matters Act 1990 because the defendant’s witnesses had given evidence that the receptionist receives documents on behalf of the Appellant and would therefore on that basis fall under the head of “responsible officer”.
The cases cited by the Appellant’s Counsel, Integrated Builders Ltd. V. Damzaq Ventures Ltd (2005) 2 NWLR (Pt. 909) 97 @ 115 C – H and MTN LTD V. Bolingo Hotel Ltd (2004) 12 NWLR (Pt. 889) 117 @ 126 E – F are not apposite. In both cases the relevant rules of court provided for service on director, secretary or other principal officer. There was no provision for other ‘responsible officer’ of the organization as in the rules of court in the instant case. In Integrated Builders v. Damzaq, service was effected on one Mrs Abiodun Bakare. In the appellant’s affidavit it was deposed that she is the personal secretary of the 2nd defendant and was neither a secretary to the appellant or a principal officer of the appellant. The respondent in its counter-affidavit deposed that she is a senior officer of the appellant as opposed to principal officer referred to in Order 12 rule 8 of High Court of Oyo State (Civil Procedure) Rules 1988. The Court of Appeal held that the language of Order 12 r.8 of the 1988 Rules is clear and does not admit of any aid in interpretation; that the concept of principal officer in the said rule does not subsume senior secretary or personal secretary. The court did not hold as submitted by learned counsel for the Appellant that service on a secretary is not service on a responsible officer as the word “responsible officer” is not mentioned in the High Court Rules of Oyo State. Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure Rules) 2004 allows for service on a responsible officer of the organization. That is what distinguishes the instant case from the authorities cited by learned counsel for the Appellant.
I am of the firm view that the appellant failed to show that the findings of facts by the lower court were perverse or that same could not be supported by the weight of evidence led at the trial. I have no reason to interfere with his Lordship’s ruling. This appeal lacks merit. It is hereby dismissed. The ruling of Oke-Lawal J. of the Lagos State High Court delivered on 25/4/08 dismissing the Appellant’s application to set aside the service of the originating summons is affirming with costs assessed at N20,000.00 in favour of the Respondents.
RITA NOSAKHARE PEMU, J.C.A.: I have the advantage of reading in draft, the judgment just delivered by my brother CHINWE EUGENIA IYIZOBA J.C.A. and I agree with her opinion and conclusion that this Court declines the invitation of the Appellant to interfere with the findings and conclusions of the trial judge.
This is particularly true in a situation where the learned trial judge had sufficiently evaluated evidence both oral documentary, placed before him.
The Appellant, as rightly observed in the lead judgment, has not shown that the conclusion reached by the lower court is not supported by evidence on record, or perverse.
I abide by the consequential order made that this appeal lacks merit and same is dismissed by me. I award costs of N20,000.00 in favour of the Respondents.
FATIMA OMOR AKINBAMI, J.C.A.: I have had the privilege of reading before now in its draft form the judgment just delivered by my learned brother IYIZOBA JCA.
Being satisfied that the facts germane to this appeal have been duly set down and the issues raised thereon carefully considered, I shall also dismiss the appeal for the reasons so given. In the result, I adopt the judgment of my learned brother IYIZOBA JCA as my own.
I abide by the order as to the costs as made by my learned brother.
Appearances
A. O. Fayemiwo Esq with O. A. OgunseyeFor Appellant
AND
Amos Ogbonnaya Esq with Kingsley Okeke EsqFor Respondent
