PRINCE PST PATRICK NNAJI & ANOR v. BARR. LOUIS M. ALOZIE (2014)

PRINCE PST PATRICK NNAJI & ANOR v. BARR. LOUIS M. ALOZIE

(2014)LCN/7472(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 15th day of October, 2014

CA/OW/212A/2010

RATIO

PRACTICE AND PROCEDURE: SERVICE OF PROCESS; WHETHER PROPER SERVICE OF PROCESS VESTS JURISDICTION ON A COURT TO HEAR AND DETERMINE A MATTER

Of course, the Law, is trite that service of process is cardinal and foundational in the determination of the power of a Court to hear a case in the first place. Apart from the need for the Court to be seised with the jurisdiction or powers over the subject matter of litigation, and be properly constituted to hear the case, the parties must be duly served with the processes, to be properly informed of the subject matter of litigation and notified about the sitting of the Court, and given unhindered access to the Court, and equal opportunity to be he heard. In the recent case of Chevron Nigeria Ltd. Vs Chief Chimezie A Osigwe (2014) LPELR – 23534 (CA), this Court held on the place of service of process, as follows:
“In Law, proper service of process and notice of hearing of a cause is what vests jurisdiction on a Court to hear and determine a matter for and against the parties in contention. See the of UBA PLC Vs Effiong (2011) LPELR – 8934 (CA); Mark Vs Eke (2004) 5 NWLR (pt.865) 54; and Modahunsi Vs Kwara Inv. & Property Dev. Co. Ltd. (2011) LPELR – 9105 CA, where this Court held: “Proof of service of the process on the defendant is very fundamental to the issue of jurisdiction and competence of the Court to adjudicate”
Also in the case of S.P.D.C. Nig. Ltd. Vs Esowe (2007) LPELR – 8670 (CA); (2008)4 NWLR (pt.1076)72, this Court, per Gumel JCA, held: “Where service of a Court process is required to be made and the Court through its relevant officers (Bailiffs) failed to effect the service of the required process, that failure is a fundamental vice that could taint any proceeding subsequent to the failure to service of the process with illegality… Skenconsult Vs Ukey (Supra)… “The service of a hearing notice is more than just a procedural step in the adjudication of a matter. It is more serious than that. It is a substantive issue as it goes to the jurisdiction and competence of the Court to go ahead with the matter.” See also Isiak & Anor Vs Obobiyi (2012) LPELR 8540 (CA). per. ITA G. MBABA, J.C.A.

COURT; COURT BAILIFFS; WHETHER THE COURT SHOULD BELIEVE AND ACT ON AFFIDAVIT FILED BY THE BAILIFF

Ordinarily, the Law responses confidence in the Court Bailiffs, employed to serve court process (among other things), and the Court is enjoined to believe and act on affidavit filed by the Bailiff as conclusive evidence of service of the process in contention, except there is credible evidence from the contender, strong enough, to defeat such faith or belief in the bailiff. See Afribank Nig. Plc Vs Yelwa (2012)12 NWLR (pt. 1261)286; (2011) All FWLR (pt.585) 296; Mudahunsi Vs Kwara Inv. & Property Co. Ltd. (2011). LPELR – 9105 (CA); IBWA Vs Sasegbon (2007) 16 NWLR (pt. 1059) 195 at 203. per. ITA G. MBABA, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; THE PROVISION OF THE EVIDENCE ACT ON THE PRESUMPTION THAT ALL PROCESSES INCLUDING THE AFFIDAVITS OF SERVICE BY THE BAILIFFS IS VESTED WITH CREDIBILITY

I think the presumption of Law would apply to vest credibility on those processes, including the Affidavits of service by the Bailiffs. See Section 146 of the Evidence Act 2011, which says:
“(146) (1) The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized in that behalf, to be genuine, provided that such purports to be executed in the manner directed by law in that behalf.
(2) The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such document.”
The certified true copies of the processes (including the two Affidavits of service) were official documents of Court, duly signed by the Court officials (Bailiffs), as processes earlier served (or authenticating service) on the Appellants. They required ready acceptance and presumption of regularity by court, especially as the Appellants never contested the authenticity of these documents, but was only expressing surprise, that the Bailiffs, in fact, served the processes on the Appellants’ Counsel, as claimed. per. ITA G. MBABA, J.C.A.

PRACTICE AND PROCEDURE: AFFIDAVIT OF SERVICE; THE PRESUMPTION OF THE LAW THAT WHERE AN AFFIDAVIT OF SERVICE HAS BEEN SWORN TO BY TH BAILIFF, PROPER SERVICE HAS BEEN EFFECTED

By Law, where an affidavit of service has been sworn to by bailiff, the presumption is that proper service has been effected See IBWA vs. Sasegbon (2007)16 NWLR (Pt.1059)195 at 203, See also Fatukun vs. Somade (2003)1 NWLR (Pt.802) 431 at 438, where it was held:
“where there is proof of service on a party by means of an affidavit of service sworn to by a bailiff or an officer of court, the only recommended and acceptable way of challenging or rebutting the presumption of such service by the party concerned is by filing a counter affidavit to controvert the affidavit of service. The failure by the Appellant to file such a counter affidavit is fatal to his case and his oral argument on the hearing date that he was not served with the motion and other processes in the suit cannot avail him.” per. ITA G. MBABA, J.C.A.

APPEAL: FINDINGS NOT APPEALED AGAINST; WHETHER THE FINDINGS OF A TRIAL COURT NOT APPEALED AGAINST IS DEEMED TO HAVE BEEN ADMITTED AND BINDING

In Law, where the findings of a trial Court on a relevant issue is not appealed against, the same is deemed to have been admitted, as it remains binding and conclusive. See Ojeabuo Vs FRN (2014) LPELR 22555; Amale Vs Sokoto L.G. (2012) 5 NWLR (pt. 1292) 181; Uwazuruike Vs Nwachukwu (2013)3 NWLR (pt.1342) 503; Kazuare & Ors Vs Kafinta & Ors (2014) LPELR – 22901 – CA; Asabe Vs Babale (2013) LPELR – 22360 CA. per. ITA G. MBABA, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT OF FAIR HEARING; WHETHER A PARTY GIVEN THE OPPORTUNITY TO PRESENT HIS CASE BUT CHOOSES NOT TO UTILIZE THE SAME CANNOT LATER BE HEARD TO COMPLAIN THAT HIS RIGHT TO FAIR HEARING HAS BEEN BREACHED

The Law is trite and represented in several authorities, that:
“Where a party is given ample opportunity to present his case within the confines of the law, but chooses not to utilize same, he cannot later be heard to complain that his right to fair hearing has thereby been breached.” Bill Const. Co. Ltd. Vs Imani & Sons Ltd. (2006) 19 NWLR (pt.1013) 1 at 6; Ikoli Ventures Ltd. Vs SPDCN Ltd. (2008) 12 NWLR (pt 1101) 422 at 426; Newswatch Comm. Ltd. Vs Atta (2006) 12 NWLR (pt.993) 144; Fulani Vs Rafawa & Ors (2013) LPELR-20384 CA; Chevron Nig. Ltd. Vs Chief Asigwe (2014) LPELR – 23534 (CA).
In the case of RCC Ltd. Vs Okpegboro (2000) 2 NWLR (pt.645) 567 at 368, it was held that:
“The requirement that equal treatment or equal consideration be given to all concerned, is not breached in a situation where a party was afforded the opportunity to be present at the trial to present his case or to defend himself but he deliberately refused to avail himself of such an opportunity through his own neglect or tardiness, since the Law does not aid the indolent. The rule only comes to play where a party is denied any opportunity to be heard. It is not applicable to a defendant who fails to appear to defend an action against him.” per. ITA G. MBABA, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA G. MBABA Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

1. PRINCE PST PATRICK NNAJI
2. ANTHONY NNAJI Appellant(s)

AND

BARR. LOUIS M. ALOZIE Respondent(s)

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Imo State High Court, in suit No. HOW/668/2007, delivered on 8/3/2010 by Hon. Justice N. B. Ukoha, wherein his lordship refused to set aside an earlier judgment in the suit, delivered on 11/7/2008 in default of pleadings. The Appellants were, on 1/5/2013, granted leave to replace the deceased (original) Appellant, Eze (Dr) Leo. O. Nnaji, who was the Defendant/Applicant at the Lower Court.

On 12/12/2007, the Respondent (as Plaintiff in the lower court) filed an ex-parte application for leave to issue a writ of summons and place same on the undefended list, for hearing and determination. The application was granted and the suit placed on the undefended list, accordingly.

But following a successful notice of intention to defend the suit, filed by the Defendant (Appellants herein) on 8/1/08, the suit was transferred to the general cause list by an order of court made on 19/2/2008 and the parties were allowed 30 days, each to file pleadings, starting with the plaintiff. Of course, the Defendant’s time was to begin to run upon service on him of the statement of claim by the plaintiff (Respondent herein).

On 11/7/2008, judgment was, however, entered for the plaintiff in the sum of N900, 000.00 (Nine Hundred Thousand Naira) in default of pleadings, following a motion for judgment, filed by the Plaintiff on 17/6/2008 and moved on the said 11/7/2008.

Appellants filed a motion on 19/8/09, praying the trial court to set aside the said judgment, on the grounds that both the Respondent’s (Plaintiff’s) statement of claim and motion for judgment were not served on the Defendant or his Counsel. That was after making a formal enquiry by the Defendant’s Counsel, through a letter, dated 18/8/2008, requesting for the certified true copies of the statement of claim, the motion for judgment and the affidavit of service filed to that effect. The certified true copies obtained showed that Appellant (as Defendant) was served with the processes. Appellants claimed the said affidavit of service was astonishing, as “the affidavit of service (the first, that was sworn to on 29/4/08 claimed to have effected service on 24/4/08, beyond the time allowed by the court below) was less than transparent”, having stated that the defendant was served “by delivering the same personally to the Defendant through the solicitor”; that the two affidavits of service were unambiguous as to whom service was effected on.

Appellants had insisted that the processes were not served on them. After hearing the submissions of Counsel on both sides and the oral testimonies, entertained by the trial court to resolve conflicts in affidavits, the learned trial court held, as follows, dismissing the application to set aside judgment:
“Since there is manifest evidence that the Defendant/Applicant was served with the statement of claim of the claimant and a motion to enter judgment and he failed to act timeously rather waited until judgment is entered and execution about to be levied before he decided to wake up from slumber, I will be reluctant to set aside the judgment, where there is proof that the defendant/applicant was actually served. The application to set aside is equitable remedy and he who goes to equity must go with clean hands. I dare say that the hands of the defendant/applicant are not clean as he approached the court for equitable remedy. The application to set aside and other reliefs under it are hereby refused, since it has been shown that the defendant was served and he chose not to defend his case.”

That is the Ruling Appellants are appealing against, for which they filed Notice of Appeal on 12/3/2010, as per pages 144 to 147 of the Records of Appeal, disclosing five (5) grounds of Appeal. They filed Amended Notice of Appeal with the leave of this court, deemed duly filed on 10/6/14, and their Brief of arguments on 6/12/2013, which was also deemed duly filed on 10/6/14. They distilled two (2) Issues for determination, as follows:
1. Whether the lower court was right in refusing/dismissing the motion to set aside the judgment in default and other reliefs under it, having regard to the fair hearing provisions in the 1999 Constitution. (Grounds 2, 3, 4 and 5)
2. Whether the lower court was right, while relying on section 167 (d) of the evidence Act 2011 (then section 149 (d)) to hold that failure (as alleged) of the Appellant to explain how he got the processes in contention, means they were indeed served (Ground 1).”

The Respondent filed his Brief on 23/6/14, and distilled two (2) issues, too, for determination, as follows:
1. Whether the Appellant was served with the statement of claim and motion for judgment as buttressed by the Bailiff’s affidavit of service found and affirmed by the trial court. (Ground 3).
2. Whether having regard to the facts and circumstances of the case, the Applicant can rightly claim that his right to fair hearing was breached. (Grounds 1, 2, 4 and 5)

A brief facts of the case shows that the Plaintiff’s (Respondent’s) suit at the High Court, which had been transferred from the undefended list to the general cause list, was “for the sum of N900,000.00 (Nine Hundred Thousand Naira) being money had and received by the defendant from the plaintiff for a failed consideration, which amount the defendant has failed, neglected, or refunded (sic) to pay, despite of several demands. Interest on the judgment debt the rate of 10% from the date of judgment till final liquidation of same.”

Upon failure to file statement of defence, the Respondent filed a motion for judgment in default of pleading, having filed his statement of claim on 17/3/08, which was said to have been served on the Appellant on 24/4/08, through his Counsel. In the statement of claim, the Plaintiff (Respondent) sought the following reliefs:
1. “The sum of N900,000.00 (Nine Hundred Thousand Naira) being money paid to the defendant by the plaintiff for purchase of the land situate behind NEPA substation Trans Egbu Layout, Owerri, which consideration failed.
2. N40,000.00 (forty thousand Naira) being cost of surveying the land by the plaintiff which also turned out to be in vain.
3. N5,000,000.00 (Five Million Naira) being damages for fraudulent or negligent suppression by the defendant of the fact of the acquisition of the said land by the Government, at the time of the transaction.
4. N5 million being damages for failure or neglect by the defendant to register his interest in the said parcel of land, by reason of which the plaintiff was misled into buying same from late Matthew Nwachukwu in the first place.
5. Interest of 10% per annum from the date of payment of the money to the defendant by the plaintiff till judgment is given and thereafter 10% per annum from the date of judgment until the judgment sum is liquidated.”

The motion to enter judgment for the plaintiff was heard and granted in the absence of the defendant, who soon, thereafter, brought application to set aside the judgment, on the grounds that neither the statement of claim nor the motion for the default judgment was served on him. In the course of hearing the application, the trial court took oral evidence from the Bailiffs and others to determine, whether, in fact, the processes had been served on the Defendant (Appellant) before the judgment was entered for the plaintiff. The court resolved against the Defendant (Appellants).

Arguing the Appeal, on 22/9/14, learned counsel for the Appellants, G.O.C. Ihebom Esq, on issue 1, submitted that the purported affidavit of service in the court’s file, as disclosed in the judgment in default, did not have any basis of truth; that there were manifest contradictions between the affidavit of service filed by the bailiffs who purportedly effected service of the contentious processes and their oral testimonies, as to who they actually served; that the Respondent; in his counter affidavit had insisted that it was Counsel to the original appellant that was served; that he even confronted the Appellant’s Counsel as to why he did not file statement of defence (See paragraphs 7a and 7b of the counter affidavit filed on 17/9/2008, page 95 of the Records of Appeal). But while testifying in court, the Respondent failed to confront the Appellant’s Counsel with the above claims, but rather claimed to have served the Counsel’s secretary!

Counsel submitted that the affidavits of service filed by the two bailiffs, contrary to their oral testimonies in court, did not mention any ‘secretary’ to the appellant’s solicitor’s chambers and the mode of service; that the affidavit of service filed on 29/4/08 by the Chief Bailiff had claimed to have effected service of the statement of claim, “by delivering the same personally to the Defendant c/o Barr. Ihebom,” while the other affidavit of service, filed on 24/6/2006, indicated that the motion for judgment was served “by delivering the same personally to the Defendant through the solicitor”; that there was no mention of ‘clerk’ or ‘secretary’. Counsel said the oral evidence contradicted the Respondent’s counter-affidavit, earlier mentioned, which insisted that services were effected on the Defendant, personally, through the counsel!

He drew our attention to the fact the law places the onus of proof on the party making positive assertion, that is, on the Respondent, that the processes were served, as stated. He relied on the case of ALK v Idowu (2006) ALL FWLR (pt. 293) at 361. He submitted that the inconsistencies identified in the evidence of the Respondent and bailiffs as to service of the said processes, rendered them unreliable, creating doubt as to whether the Appellant was, in fact, served; that the judgment entered on the basis of such unreliable process has to be set aside, relying on the case of Wimpey Nig ltd and Anor vs Alhaji Delani Balogun (1986) 3 NWLR (pt. 280) 324 at 334; Okoye & Anor vs. Center-point Merchant Bank Ltd (2008) 13 SCLR (pt. 13) 81 at 87 – 98.

Counsel submitted that the Bailiff who serves a process has to be exact in the affidavit of service as to who the service was effected on, and that the demands of fair trial requires no less, relying on Uguru vs State (2002) FWLR (pt. 103) 330 at 343. Counsel added that affidavit of service could be anything, but sacrosanct, as it is at best, a prima facie evidence of service and not conclusive proof; that the court has a duty to critically examine the affidavit of service, particularly when challenged, as in this case. He relied on the case of Alhaji Umaru Launi vs. Ezeadua (1983) 6 SC 370 and Okoye and Anor vs. Center-point Merchant Bank ltd (2008) 13 SCLR (pt 13) 81.

On issue 2, Counsel for the Appellant submitted that it was curious that the trial court held that they (Appellants and counsel) were not able to explain how they came about the statement of claim (used in the application to set aside); that that showed that the Appellant’s Counsel had been duly served; whereas there was sufficient evidence to the effect that they had applied for issuance of certified true copies of the statement of claim, the motion for judgment and the affidavits of service (on being confronted with the judgment order) and the processes were duly issued to them, before they filed their application to set aside the default judgment. Counsel argued that Appellants’ formal application dated 18/8/08 for the processes filed by the Respondent, explains how the said processes filed, were obtained and belied the holding of the court below in construing the said provision of section 167 (d) of the Evidence Act against the Appellants, which was clearly inapplicable as there was no basis for that.

Counsel urged us to peruse the Records of Appeal and make use of the documents found relevant towards meeting the ends of justice, and relied on W. A. Provincial Insurance ltd vs. NTC ltd and Anor (1987) 2 NWLR (pt. 56) 299; Abraham vs. Olorunfemi (1991) NWLR (pt. 165) 53 at 61; Nwanosike vs Udosen (1993) 4 NWLR (pt. 290) 684.

Counsel urged us to allow the Appeal.

The Respondent, who appeared in person and settled his brief, submitted that the Appellants’ contention that the processes were not served on them, was not only misconceived, but also had no basis. He noted that the original processes in this case were served, personally, on the original Appellant at his home town, Oboama Enyioguogu in Aboh Mbaise LGA, Imo State, but upon filing a Notice of Intention to defend the suit, through a Counsel, the address for service of other processes on him shifted to his Counsel’s office in Owerri, where the Bailiffs effected service of the statement of claim and the motion for judgment on the Appellant. He relied on the said affidavit of service in the Court’s file, which he said were never challenged at the lower Court.

The Respondent submitted that it was trite law, that where an affidavit of service has been sworn to by a bailiff who effected the service, there is presumption that proper service has been effected; that the only way to rebut or challenge same is by filling a counter affidavit. He relied on IBWA Vs SASEGBON (2007) 16 NWLR (pt. 1059 at 203; FATOKUN VS SOMADE (2003) 1 NWLR (pt. 802) 431 at 438.

Respondent said that the Appellant did not file any counter affidavit, challenging the affidavit of service deposed to by the Bailiffs, and that such was fatal to the Appellants, as such, there being no challenge to the affidavits of service by the Bailiffs, Appellants were deemed to have admitted the facts contained in the said affidavits of service.

However, the Respondent said, the trial Court, out of its wisdom and magnanimity called for oral evidence to resolve the issue of service, and PW1 and PW2 (Bailiffs) testified, as to their services of the statement of claim and the motion for judgment, respectively; that PW1 (Mr. Mba) tendered the Despatch book, and PW2 (Mr Ajoku) showed that he served the motion for judgment on the Defendant/Appellant through his Counsel G.O.C. Ihebom; that at the end of the trial, the trial Court confirmed that the Appellants were served.

Respondent also referred us to paragraph 7(b) of his Counter affidavit, which stated that he saw G.O.C Ihebom Esq. Counsel for Appellants in Court sometime in June 2008 , in Owerri and asked him why (he) Appellants’ Counsel, did not serve the Appellants’ statement of defence on him (Respondent) and the Appellants’ Counsel said he had finished drafting the same and was waiting for his client before he could file it! Counsel submitted that averment was never countered by the Appellants’ Counsel.

He submitted that the Appellants were, in fact, served with the processes and that the trial Court was right to affirm the affidavits of service by the Bailiffs and so dismissed the Application to set aside the judgment.
Respondent further submitted that, as appellate Court, we cannot interfere with the exercise of discretion by the trial Court, where such discretion was exercised in accordance with the Law; that it does not matter that appellate court would have exercised its discretion differently, if it was faced, with the same situation. He relied on the case of U.I.G.C Vs Inwang (2010)4 NWLR (pt. 1185)52 at 537; Banna Vs Telepower (Nig.) Ltd. (2006)5 NWLR (pt. 1001)198 at 207.

The Respondent, said that a proof that Appellants had been served with the statement of Claim as stated by him, could be seen in the prayer by the Appellants (in the motion to set aside the default judgment) for extension of time to file Appellants’ statement of defence. He argued that that was an evidence of admission that the process had been served and that Appellants were out of time to file their response!

He urged us to hold that the Appellants and their Counsel had admitted his deposition in paragraph 7(b) of the Counter-affidavit, and so there was no need to confront Appellants’ Counsel with cross-examination on the point, when he testified as DW3. He relied on Ikoku Ventures Ltd. Vs SPDCN Ltd. (2008) 12 NWLR (pt. 1101) 422 at 425.

Respondent further called our attention to the conduct of DW2 (Secretary to Appellants’ Counsel Law firm) in her evidence to resolve conflicts in the affidavits, when she denied signing her deposition (which she had earlier adopted at the trial), all in an effort to deny, her signature in the Exhibit A (despatch book) tendered by the Bailiff! He submitted that it is common knowledge that service of process on Clerk/Secretary of Counsel, in Counsel Chambers, is deemed as due service on the principal (Counsel).

On issue 2 Respondent submitted that the crux of Appellants’ case before the lower Count was the alleged none service of the statement of Claim and Motion for judgment, as opposed to the affidavits of service by the Bailiffs; that was resolved against the Appellants when the trial Court called oral, evidence on the issue; he submitted that having established that the Appellants had been served with the processes, there cannot be any valid complaint of denial of fair hearing, again or breach of section 36(1) of the 1999 Constitution; that a party who has been given opportunity to state his case and he failed, cannot complain of denial of fair hearing.

He said that the fuse made by the Appellants on the alleged none service of the processes was founded on hear-say, as the processes were, in fact, served on them through their Counsel, who simply told them the wrong thing; that even when the Appellants’ Counsel subsequently came up with the said processes, he did not explain how he got them from the Court registry, or call the officer who gave him the processes to give evidence on the issue. Thus, he said, the Appellants’ Counsel was not telling the truth when he claimed to have obtained the processes from the Court Registry. He relied on Bill Construction Co. Ltd Vs Imani & Sons Ltd. (2006) 19 NWLR (pt. 1013) 1 at 6; Ikoli Ventures Ltd. Vs SPDCN Ltd. (2008)12 NWLR (pt. 1101) 422 at 426; RCC Ltd. Vs Okpegboro (2000)2 NWLR (pt.645) 367 at 368; Newswatch Comm. Ltd. Vs Atta (2006)12 NWLR (pt.993) 144 at 151, on the issue of fair hearing and urged us to dismiss the appeal.

RESOLUTION OF ISSUES
The main contention in this appeal is on the issue of service of the statement of claim on the Appellants as well as service of the Motion on Notice for judgment filed by the Respondent, on the grounds that the Appellants failed, refused on neglected to file their statement of defence as ordered by Court; whether the trial judge was right to hold that the processes had been served on the Appellants, thus dismissing the Motion to set aside the default judgment. I shall therefore take the two issues together, as I think a successful resolution of the 1st issue, by the Respondent, takes care of the 2nd issue. I shall therefore consider this appeal on the two issues by the Respondent, as the same, in my opinion, are more apt and elegant.

Of course, the Law, is trite that service of process is cardinal and foundational in the determination of the power of a Court to hear a case in the first place. Apart from the need for the Court to be seised with the jurisdiction or powers over the subject matter of litigation, and be properly constituted to hear the case, the parties must be duly served with the processes, to be properly informed of the subject matter of litigation and notified about the sitting of the Court, and given unhindered access to the Court, and equal opportunity to be he heard. In the recent case of Chevron Nigeria Ltd. Vs Chief Chimezie A Osigwe (2014) LPELR – 23534 (CA), this Court held on the place of service of process, as follows:
“In Law, proper service of process and notice of hearing of a cause is what vests jurisdiction on a Court to hear and determine a matter for and against the parties in contention. See the of UBA PLC Vs Effiong (2011) LPELR – 8934 (CA); Mark Vs Eke (2004) 5 NWLR (pt.865) 54; and Modahunsi Vs Kwara Inv. & Property Dev. Co. Ltd. (2011) LPELR – 9105 CA, where this Court held:
“Proof of service of the process on the defendant is very fundamental to the issue of jurisdiction and competence of the Court to adjudicate”
Also in the case of S.P.D.C. Nig. Ltd. Vs Esowe (2007) LPELR – 8670 (CA); (2008)4 NWLR (pt.1076)72, this Court, per Gumel JCA, held:
“Where service of a Court process is required to be made and the Court through its relevant officers (Bailiffs) failed to effect the service of the required process, that failure is a fundamental vice that could taint any proceeding subsequent to the failure to service of the process with illegality… Skenconsult Vs Ukey (Supra)… “The service of a hearing notice is more than just a procedural step in the adjudication of a matter. It is more serious than that. It is a substantive issue as it goes to the jurisdiction and competence of the Court to go ahead with the matter.” See also Isiak & Anor Vs Obobiyi (2012) LPELR 8540 (CA).

Was there any evidence to support the position of the trial Court that Appellants were, in fact, served with the statement of Claim and the Motion on Notice for judgment, before the trial Court entered judgment in default of pleading, for the Respondent?

Appellants had denied, vehemently, that they were served with the statement of claim and the Motion on Notice for judgment, contesting the affidavit of service by the two Bailiffs who claimed to have served the two processes. Appellants, who had taken part in the Suit and had caused the case to by transferred from the Undefended List to the General Causes List, were represented in Court, as at 19/2/2008, by their Counsel, G.O.C Ihebom, Esq, when pleadings were ordered be the trial Court, giving each side 30 days to file pleadings.

By Law, from the date the said Counsel for the Appellants (Defendant at the Lower Court) filed a process, indicating his representation for the Appellants and disclosing his address for service on the process, the Counsel’s Law office (address) became the appropriate service point of all processes of Court on the Appellants in the case. That has become the standard practice, except where the Counsel’s address (office) is located outside the jurisdiction of the Court, in which case, Counsel still has a duty to furnish the Court with an address, where he or his client can be served, within the jurisdiction of the Court. See Order 4 Rules 6 and 7 of the Imo State High Court Civil Procedure Rules, 2008.

The affidavits of service filed by the Bailiffs indicated that the statement of Claim and Motion for judgment were served on the Appellants, through their Counsel, G.O.C. Ihebom Esq, as per Pages 74 and 75 of the Records. The affidavit of service of the statement of Claim is on page 75 of the Records, and states that the statement of Claim was delivered to the Defendant, personally, through his solicitor at No. 31 Madumere Street, Owerri, on 24/4/2008, and the Affidavit of Service of the Motion for Judgment, on page 74, also stated the same, but served on 24/6/2008. Ordinarily, that should have been taken as sufficient evidence of facts of service, especially, as Learned Counsel for the Appellants said he obtained certified true copies of the said affidavits of service (together with the certified true copies of the statement of Claim and the Motion on Notice) from the Registry of the Court, on application, before filing his motion to set aside the default, judgment. That means, those processes (including the affidavits of service) were in the Court’s File before 11/7/2008, when the default judgment was made, and before 18/8/2008, when Appellants’ Counsel applied for certified true copies of the processes! (See page 48 of the Records, showing Appellants Counsel’s application for certified true copies of the processes).

I think the oral evidence that was ordered by the trial court, in its wisdom, to resolve the conflicts in the affidavits of the parties was unnecessary, though well intended, in the interest of affirmative justice.

In the first place, I think the Appellant, who swore to an affidavit in support of the application to set aside the default judgment on the grounds that they were not served with the processes of court, was misled by his Counsel, as he was basing his deposition on, purely, hearsay evidence. The affidavits of service had indicated that the processes were served on him though his Counsel. Appellant had admitted in the supporting affidavit that he was not in the State, as he was taking treatment in Abuja and that he did not live in the office of his lawyer, G O C Ihebom Esq. See paragraphs 7, 9, 13 of the affidavit of 16/7/10 page 52 -56 of the Records) The affidavits of service had shown that Appellant was served, personally, through his Counsel at the Counsel’s Chambers, but his Counsel must have told him that he (Counsel) was not served (probably because of the mixed up in the Bailiffs’ expression that “he served the Defendant “Personally” through his Counsel!”

Thus, all that the Appellant deposed to in denial of service was founded on the information his Counsel disclosed to him, which he said he reasonably believed. Why did the Counsel, whose office was directly named or an officer in his chambers, where the service was effected, not depose to the affidavit to deny the service, (knowing the implication of such denial!) Meanwhile, the Respondent (a Counsel) had personally deposed, in his Counter-affidavit, to say that he met Appellant’s Counsel in High Court 4, Owerri, sometime in June 2008 and enquired why he did not file the statement of defence in the case, and Appellant’s Counsel replied that he had prepared it and was waiting for his client to file the same! See paragraph 7b of the Counter affidavit on page 95 of the Records.

Appellant’s Counsel never denied that averment, too. He rather caused the Appellant to depose to hearsay evidence, and he (Counsel for the Appellants) asserted as a ground for the application that “no such Statement of Claim was served on the Applicant nor his said counsel even after the expiration of 30 days graciously given to the Respondent” See page 50 of the Records.

That was not an effective denial of the averments in the Affidavits of service by the Bailiffs and the Counter affidavit by the Respondent. The best Appellant did in his further affidavit of 15/7/2010, was to compound the hearsay, when he deposed:
“(4) That I have read through the paragraphs of the Plaintiff/Respondent’s said Counter-Affidavit and paragraphs 7, 7(a), 7(b), 7(c), 8, 9, 10, 10(a), 10(c) and 11 therein are not only half truths but blatant falsehood designed to beguile and mislead the Honourable Court and are hereby vigorously denied.
(5) That in further reaction to the said paragraphs of the Respondent’s Counter-Affidavit as disclosed in paragraph 4 above, my Counsel G.O.C. Ihebom Esq., told me which I verily belief (sic) that he was neither served with the Respondent’s Statement of Claim nor motion for judgment filed in this Suit, that gave birth to the default judgment of 11/7/08 personally or through his secretary.”

I have already held that Appellant did not file any Credible counter affidavit to challenge the Affidavits of Service, filed by the Bailiffs of the Court, as the affidavit in support of the motion to set aside the default judgment cannot be taken as Counter-affidavit to the Affidavits of service, especially as the said supporting affidavit was deposed to by the wrong person, and the same was also in support of an application for extension of time to file the Appellant’s Statement of defence!

It is rather curious, that Appellants who deposed to say that the processes were never served on him was also asking for extension of time to file the Statement of defence, implying that the Statement of Claim had been duly served on the Appellant, through their Counsel, as stated by the Bailiff on 24/4/08, and they acknowledged they were out of time to file their defence in response!

The act of subjecting the Bailiffs to oral evidence to resolve the dispute, even when the Appellants or their Counsel never filed an effective counter-affidavit to challenge the Bailiffs Affidavits of Service, was, unfortunate, as it appeared to have summoned the Bailiffs to prove or defend their integrity, on the basis of the hear-say depositions of the Appellants, goaded by their counsel, who never denied the service of the processes on the Appellant, through his office, as deposed to by the Bailiffs.

Even when the findings of the Learned trial Court, after the oral evidence, still confirmed that the processes had been duly served on the Appellants, through their Counsel, G.O.C. Ihebom Esq., Appellants still want us to rule that the findings of the trial Court was wrong, because, according to them (in paragraph 4.10 of the Appellants’ Briefs):
” … The affidavits of service filed by the two bailiffs of the Court below, contrary to their oral testimony specially ordered for the resolution of conflict in affidavit evidence filed by the parties, did not mention any “Secretary” to the original Appellant (now Appellants) solicitor’s chambers; nor the name of the pointer, if any (since they claimed in the said affidavit to be visiting the said chambers for the first time); and mode of service. Rather the one filed on 29/4/08 by a Chief Bailiff of the Court below, claimed to have effected service of the statement of Claim by “delivering the same personally to the Defendant c/o Barr Iheom”, while the other filed on 24/6/08, indicated that the motion for judgment was served ” by delivering the same, personally to the Defendant through the solicitor. There was no mention of any ‘Clerk’ or ‘Secretary!”

I think the above amounts to a misguided and infantile argument, coming from the very Counsel whose office was said to have been served with the processes in contention and who never deposed to any affidavit (either by himself or by his secretary or clerk) to deny the affirmative facts of service of the processes on the Appellants, through the solicitor, especially as the said Counsel was said to have admitted before his colleague, of being served with the Statement of claim, which he also claimed to have prepared a defence to but was waiting for the instruction of his client (Appellant) to file! (See paragraph 7(b) of the Respondent’s counter affidavit on page 95 of the Records of Appeal which was not denied).

It is trite practice that, where service of process is effected, through the chambers of Counsel of a party to a suit, where the Counsel had entered appearance for the party in court, then that service is deemed to be made personally on the party (litigant), and it does not matter, that the process were not served on the Counsel, directly, but on his clerk or secretary to the chambers. Of course, it is not always easy for the service to be effected on the Counsel directly, as Counsel would always instruct his aids (Clerk or Secretary) to receive such documents!

In his oral evidence to establish service of the Statement of Claim on Appellants on 24/4/08, the Chief Bailiff, Titus Mba, had tendered the dispatch book, signed by the staff (clerk) of Appellant’s Counsel, as Exhibit A. While admitting the said document (which was opposed by the Appellant’s Counsel), the trial Court said:
“… I have seen the Despatch book modelled in accordance with the requirement of service. No name of a receiver and designation are provided for in the dispatch book and so the witness could not have manufactured that to suit the purpose of the defence counsel. It is trite that service through a Counsel is proper service and if any staff in a chamber to a counsel is served with the proceeds of the Court, it is proper service. I am therefore of the humble view that the document sought to be tendered is relevant because it goes to show proof of service of the Statement of Claim…” See page 178 -179 of the Records of Appeal).

That clear findings of the trial Court appeared unassailable, as the Appellants never appealed against it. The Exhibit A, therefore, confirmed the affidavit of service of the statement of claim, filed on 24/4/08, that the process was, in fact, served on Appellant Counsel’s Clerk and she signed the Despatch book to collect it.

In the face of the oral evidence by the Bailiffs, on the service of the processes of Court on the Appellants, backed up by the Affidavits of service and the Despatch book (Exhibit A). I cannot see how the Appellants can defeat the same and escape the consequences of their in-action, to justify the setting aside of the default judgment of 11/7/08. Appellants cannot,
Therefore, complain of not being given fair hearing. The Law is trite and represented in several authorities, that:
“Where a party is given ample opportunity to present his case within the confines of the law, but chooses not to utilize same, he cannot later be heard to complain that his right to fair hearing has thereby been breached.” Bill Const. Co. Ltd. Vs Imani & Sons Ltd. (2006) 19 NWLR (pt.1013) 1 at 6; Ikoli Ventures Ltd. Vs SPDCN Ltd. (2008) 12 NWLR (pt 1101) 422 at 426; Newswatch Comm. Ltd. Vs Atta (2006) 12 NWLR (pt.993) 144; Fulani Vs Rafawa & Ors (2013) LPELR-20384 CA; Chevron Nig. Ltd. Vs Chief Asigwe (2014) LPELR – 23534 (CA).
In the case of RCC Ltd. Vs Okpegboro (2000) 2 NWLR (pt.645) 567 at 368, it was held that:
“The requirement that equal treatment or equal consideration be given to all concerned, is not breached in a situation where a party was afforded the opportunity to be present at the trial to present his case or to defend himself but he deliberately refused to avail himself of such an opportunity through his own neglect or tardiness, since the Law does not aid the indolent. The rule only comes to play where a party is denied any opportunity to be heard. It is not applicable to a defendant who fails to appear to defend an action against him.”

I therefore resolve the issues against the Appellants, holding that there is no merit in the appeal. It is accordingly, dismissed.

The parties shall bear their respective costs.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the advantage of a preview in draft of the lead judgment of my learned brother I.G. MBABA, JCA. I agree with his reasoning and conclusion that the appeal lacks merit. I adopt the consequential orders as made by my noble Lord.

FREDERICK O. OHO, J.C.A.: I have the opportunity of reading in draft the judgment just delivered by my learned Brother, Ita G. Mbaba, JCA and I entirely agree that the Appeal be dismissed with the parties bearing their respective costs.

Appearances

G.O.C. Ihebom EsqFor Appellant

AND

L. M. Alozie Esq appeared in person, with him A.C. Onyeukwu (Mrs).For Respondent