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WAECO LTD v. FORTUNE INTL OIL LTD & ORS (2020)

WAECO LTD v. FORTUNE INTL OIL LTD & ORS

(2020)LCN/15920(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, May 21, 2020

CA/A/605/2017

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

WATER AND AGRICULTURAL ENGINEERING COMPANY LIMITED (WAECO) APPELANT(S)

And

1. FORTUNE INTERNATIONAL OIL LIMITED (SUING BY ITS LAWFUL ATTORNEY BENOJEK PROPERTY LIMITED) 2. HONOURABLE MINISTER, FEDERAL CAPITAL TERRITORY, ABUJA 3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY RESPONDENT(S)

 

RATIO:

SERVICE OF PROCESS.

The law is well settled that service of a process on a party to a proceeding is fundamental. It is due service of process that confers jurisdiction on the Court seized of the matter. Where there is failure to serve a process as required, on the person entitled to be served, if not so served, is entitled, ex debito justiticae to have it set aside. See S.G.B.N. LTD. VS. ADEWUNMI (2003) 10 NWLR (PT.829) 526; MARK VS EKE (2004) 5 NWLR (PT.865) 54; TSOKWA MOTORS (NIG.) LTD. VS UBA PLC (2008) 2 NWLR (PT. 1071) 347. Per YARGATA BYENCHIT NIMPAR, J.C.A. 

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the Federal Capital Territory, High Court, delivered on the 9th March, 2017 by Hon. Justice Abubakar Talba (as he then was) in Suit No: FCT/HC/CV/1306/2015 wherein the Court below dismissed the application made by the Appellant. Dissatisfied with the decision, the Appellant filed an Amended Notice of Appeal on the 17/7/2018 setting out 6 grounds of Appeal.

​Facts relevant to this Appeal are amenable to brief summary. The Appellant was the 3rd Defendant in the suit initiated by the 1st Respondent at the Court below and the 1st Respondent made an application to serve the Appellant with initiating processes outside the FCT and in Kano State. The application was heard and granted; consequently, service was purportedly effected on the Appellant in Kano. However, the Appellant alleged that it only got to know of the pendency of the suit through the 2nd and 3rd Respondents. The Appellant alleged that it was not duly served with the processes as ordered by the Court below and that in spite of the non-service; the Trial Court proceeded with the hearing of the suit. The Appellant thereafter filed an application seeking the following order:
i. AN ORDER of this Honourable Court setting aside all proceedings conducted in this suit for lack of jurisdiction and denial of fair hearing.
ii. And for such further order or others as this Honourable Court may deem fit to make in the circumstances of this case.

The application was heard and after due consideration, the Court below dismissed the application. Dissatisfied with the dismissal, the Appellant filed its original Notice of Appeal before it was amended.

The Appellant’s Brief settled by JOSEPH E. CHUKWUEMEKA ESQ., is dated 14th December, 2018 filed on the same day. It distilled 3 issues for determination as follow:
i. Whether the decision of the Trial Court to assume jurisdiction on the case despite the non-service of the originating processes on the Appellant did not amount to a denial of the Appellant’s right to fair hearing and a travesty of justice against the Appellant? (Distilled from grounds 1 and 2 of the Appellants Notice and Grounds of Appeal).
ii. Whether the learned Trial Judge was right in law when he held that the Affidavit of Mrs. Queen Ndeka dated 6th February, 2017 and filed on the 7th February, 2017 in support of the Motion on Notice was worthless and incompetent. (Distilled from Ground 3 of the Appellants Notice and Ground of Appeal).
iii. Whether or not the Lower Court was right when it held that the Affidavit of service of the bailiff is a conclusive proof of service on the Appellant despite the Affidavit of Mrs. Queen Ndeka dated 6th February, 2017 in support of appellant’s motion on notice challenging the service? (Distilled from Ground 4 of the Appellant’s Notice and Grounds of Appeal).

The 1st Respondent’s Brief settled by J. S. OKUTEPA, SAN is dated the 17th day of May, 2018 filed on the 17/5/2018 and deemed on the 12/3/2020. Also filed a list of additional authorities on 7/12/2018. The brief donated 3 issues for determination as follows:
a. Whether the learned Trial Judge was right when he held that the Appellant was served with the Originating Processes and whether or not the Appellant was not given fair hearing. (Distilled from Grounds 1 and 2 of the Notice and Grounds of Appeal).
b. Whether the learned Trial Judge was right when he held that the Appellant did not have a competent affidavit in support of its application to set aside the proceedings of the Court. (Distilled from Grounds 3 of the Notice and Grounds of Appeal)…
c. Whether in the absence of a Counter Affidavit to the Affidavits of Service the said Affidavits of Service remain valid and the learned Trial Judge was right to have relied on them as proofs of service. (Distilled from Grounds 4 of the Notice and Grounds of Appeal).

The 2nd and 3rd Respondents even though duly served with relevant processes and hearing Notices, they did not file any brief and did not attend the hearing.

The 1st Respondent filed a Notice of Preliminary Objection on the 16/05/2018 in which it raised the following objection:
“TAKE NOTICE that the 1st Respondent herein shall at the hearing of this Appeal take objection to the competence of the Appeal of the Appellant and the jurisdiction of this Hon. Court to hear and determine the Appeal on the grounds set out hereunder.”
GROUNDS FOR THE OBJECTION:
a. That the grounds of Appeal of the Appellant arose from an interlocutory decision/ruling of the Court below refusing the application of the Appellant to set aside its proceedings.
b. That the Grounds of Appeal though cleverly couched as grounds of law are indeed grounds of mixed law and fact in that the entire Appeal complains against the exercise of the discretion of the Court below in an interlocutory decision.
c. That the Appellant requires leave of this Honourable Court to file the Appeal.
d. The Appellant filed the extant Appeal without leave of the Court below or this Honourable Court been first had and obtained.
e. The Appeal of the Appellant is an abuse of the process of this Hon. Court in that the Appellant filed this Appeal to satisfy and emasculate the process of and administration of justice.
f. That the Grounds of Appeal and the particulars of error are contradictory as both are independent of the other.
g. That the particulars of error rather than pointing out error in the ruling are argumentative in nature.
h. That the Grounds of Appeal are vague and empty and make no meaning.
i. That the Appeal of the Appellant is academic in that the vital finding and conclusion of the Trial Court against the Appellants to the effect that the proper mode to challenge an Affidavit of service is filing a Counter Affidavit in rebuttal and the Appellants did not challenge that finding and same is binding, and since the Appellants did not Appeal against the crucial findings of the Trial Court on this point no utilitarian value can be conferred on the Appellants by the success of this Appeal.
j. This Honourable Court cannot set aside the decision of the Court below which has not been appealed against.

Arguments in support of the Preliminary Objection are incorporated in the 1st Respondent’s Brief particularly at pages 2-9 of the Brief. The Appellant responded to the preliminary objection in its Reply to the 1st Respondent’s Brief particularly at pages 3-11.

It is the rule that Preliminary Objection be determined before taking any step in the Appeal. It is now settled by a plethora of authorities that a preliminary objection has one basic objective, to terminate the Appeal in limine and without a hearing. So, when it is issued by a Respondent, the Court is duty-bound to hear and determine same before hearing the Appeal. This is so because the Court would have saved the energy it would have dissipated over the hearing of an incompetent Appeal, if the Appeal is indeed incompetent. See the following cases: YARO V AREWA CONSTRUCTION LTD (2007) 17 NWLR (PT. 1063) 333; AGBAREH V MINRA (2008) 2 NWLR (PT. 1071) 378; ONYEMEH V EGBUCHLAM (1996) 5 NWLR (PT.448) 255; EFET V INEC (2011) 7 NWLR (PT. 1247) 423 at 438.
Elucidating further, my Lord KEKERE-EKUN, JSC in KLM ROYAL DUTCH AIRLINES V ALOMA (2017) LPLER-42588(SC) held thus:
“The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See ODUNUKWE VS OFOMATA (2010) 18 NWLR (PT.1225) 404 @ 423 C – F; NDIGWE VS NWUDE (1999) 11 NWLR (PT.626) 314: N.E.P.A. VS ANGO (2001) 15 NWLR (PT.734) 627; MUHAMMED V. MILITARY ADMINISTRATOR PLATEAU STATE (2001) 18 NWLR (PT.744) 183.”
The effect of a Preliminary Objection which succeeds makes it a must to consider it before taking any step in the Appeal. I shall now consider the Preliminary Objection on its merit.

SUBMISSIONS ON THE PRELIMINARY OBJECTION
The 1st Respondent in support of the Preliminary Objection submitted that grounds 1 together with particulars of error are contradictory. Furthermore, that the particulars are independent of the Ground of Appeal, citing F.H.A. V KALEJAIYE (NIG) LTD (2010) 19 NWLR (Pt. 1226) 147 at 165 in support. The 1st Respondent submitted that the correct address of the Appellant was not given to support its contention that service was not effected at the correct address. That particulars of error should not be independent or stand alone and relied on OLEKSANDR V LONESTAR DRILLING CO. LTD (2015) 9 NWLR (Pt. 1464) 337. Furthermore, the 1st Respondent argued that grounds 1 and 2 are vague because ground one says there are two addresses for service of the writ of summons on the Appellant but never stated the correct address and therefore the ground failed to identify the error, thus making the ground vague, in support, citing STAOIL (NIG) LTD V S.D.W.P. LTD (2015) 16 NWLR (Pt. 1485) 361.

Learned Counsel to the 1st Respondent submitted that the grounds are of mixed law and fact and leave is required to appeal, referred to NIC V ASEAN INS. CO. LTD (2007) 6 NWLR (Pt. 1031) 589 at 601; NWADIKE V IBEKWE (1987) 4 NWLR (Pt. 67) 718 and LEKWOT V JUDICIAL TRIBUNAL (1993) 2 NWLR (Pt. 276) and SECTION 241 OF THE 1999 CONSTITUTION. Learned Senior Counsel identified ground 3 and 4 as grounds of mixed law and facts because the Appellant is challenging the opinion of the Trial Judge on evidence in the affidavit and therefore leave is required, citing GARUBA V OMOKHODION (2011) 14 NWLR (Pt. 1269) 145. On the effect of failure to seek leave where necessary, he relied on ABALAKA V PRESIDENT, FRN (2012) 5 NWLR (Pt. 1292) 102 and IBRAHIM V UMAR (2012) 7 NWLR (Pt. 1300) 507 at 528 to submit that the Notice of Appeal is incompetent.

Arguing further, learned Senior Counsel contended that the Appeal is academic and of no utilitarian value and therefore this Court lacks jurisdiction to determine same, relied on UGBA V SUSWAN (2014) 14 NWLR (Pt. 1427) 264. He continued submissions that the findings that the Appellant was served with processes and hearing notice has not been appealed against and therefore subsisting. He urged the Court to sustain the objection and strike out the Appeal.

The Appellant in response set out the particulars to ground 1 and contended that except the error in item B, there is no contradiction and the 1st Respondent did not allege that he does not understand the complaint in Ground 1. Furthermore, the affidavit disclosed the registered office of the Appellant as No.39A Justice Dahiru Mustapha Street, Farm Centre, Kano State but service was not effected there, relied on DAILY TIMES (NIG) PLC V D. S. V LTD (2014) 5 NWLR (Pt. 1400) 327 and OKE V MIMIKO (NO.2) 2014 1 NWLR (Pt. 1388) 332 on the purpose of particulars of error.

On the contention that the ground and particulars set out are argumentative, the Appellant relied on DAKOLO V REWANE (2011) 16 NWLR (Pt. 1272) 22 for the difference between a Ground of Appeal and its particulars. On ground 2, the Appellant submitted that though some words are missing, it still does not make it vague or meaningless, citing DAILY TIMES (NIG LTD V D.S.V.LTD (2014) 5 NWLR (Pt. 1400) 327 and PETER V N.N.P.C (2010) 8 NWLR (Pt. 1195) 173. The Appellant further submitted that the 1st Respondent misconceived the grounds, he listed 3 principles governing the classification of Grounds of Appeal as highlighted in GARBA V OMOKHODION (2011) 15 NWLR (Pt. 1269) 145 and for the distinction between a ground of law and a ground of mixed law and facts.

On grounds 3 and 4, the Appellant submitted that a ground of law is also a Lower Court’s misunderstanding of the law applied to the facts, he cited AJUWA V S.P.D.C.N LTD (2011) 18 NWLR (Pt. 1279) 798 822 for the description of a ground of law. The Appellant submitted that ground 4 is clear on misapplied law because the issue challenging affidavit of service by the bailiff is an issue of law. He then urged the Court to dismiss the Preliminary Objection for being incompetent.

RESOLUTION OF PRELIMINARY OBJECTION
The 1st Respondent’s objection borders on alleged incompetence of all the 4 grounds of appeal set out in the Notice of Appeal. The objection is founded on different grounds. The first ground of objection states that ground 1 and 2 are vague and contradictory. Ground 1 and 2 shorn of their particulars states thus:
Ground One:
The learned Trial Judges erred in law and misdirected himself when he held that the Appellant has been served the originating processes in this suit and assumed jurisdiction in this matter despite lack of proof of service of the originating processes on the Appellant.
Ground 2
The learned Trial Judge erred in law when he refused to set aside the proceedings of this Honourable Court conducted in the absence of the Appellant and in breach of the right to fair hearing as enshrined in the 1999 Constitution as amended.

Without any waste of time, the first ground of Appeal is a challenge of the Lower Court’s jurisdiction. Jurisdiction is very important and cannot be over looked under the guise of conforming to rules and standards. Its importance is reason why it could be raised orally; see APC V NDUUL & ORS (2017) LPELR- 42415(SC) which held as follows:
“What is in issue in this preliminary objection is that of jurisdiction which can be raised at any stage of the proceedings even on appeal up to the Supreme Court and in that regard it is not mandatory that leave of Court be obtained before the issue of jurisdiction can be raised. This Appeal has to do with the issue of breach of fair hearing which when at play would render the proceedings no matter how well conducted come to naught. The reason being that the right to fair hearing is a fundamental constitutional right deeply entrenched and an infraction of which vitiates such proceedings rendering same null and void. I shall refer to the stance of this Court in this matter in the case of: Elugbe v Omokhafe (2004) 18 NWLR (Pt.905) 319 at 334. In the case of State v Onagoruwa (1992) 2 SCNJ (Pt.1) 1 at 308 Belgore, JSC (as he then was) stated: “The red light to Court to be cautious is the jurisdiction and it must be settled by proper hearing of parties before further proceedings in a matter can be embarked upon. Similarly there are occasions after a matter has been before the Court for long before the issue of jurisdiction arises some in the middle of the entire proceedings or towards its tail end in that case the jurisdiction must first be settled before proceedings further …It is therefore never too late to raise the issue of jurisdiction and in the case of this nature it is never premature to raise it…. The preliminary objections as to jurisdiction ought to have been taken first and decided upon.” See also Olufeagba v Abdur-Raheem (2009) 40 NSCQR 634 at 724 per Mukhtar JSC (as he then was). On whether a party can waive the issue of a lack of jurisdiction, this Court in Mobil Producing Nig. Unlimited v. Monokpo (2003) 18 NWLR (Pt.852) 346 at 436 – 435. Tobi JSC said; “The law is elementary that a party cannot or has not the competence to waive lack of jurisdiction of the Court. Where a Court lacks jurisdiction, the entire proceedings however well conducted are a nullity and a party cannot in law resuscitate or revive a nullity by waiver, Jurisdiction is basic to the entire adjudication. It affects the power of the Court to adjudicate on the matter. Where a Court lacks jurisdiction, no amount of indolent conduct on the part of any of the parties, particularly the defendant, can ripen into the defence of waiver. It is my view that the jurisdiction of a Court, where there is none, cannot be enlarged either by estoppel or waiver. Jurisdiction, being the forerunner of the judicial process, cannot, by acquiescence, collusion, compromise, or as in this case, waiver, confer jurisdiction on a Court that lacks it. Parties do not have the legal right to denote jurisdiction on a Court that lacks it.” Considering the paramount nature of jurisdiction or competence of an Appeal and as a follow up the vires of Court thereby, the issue of jurisdiction is taken as such that leave is not needed to raise it. Also because of its fundamental position it can be brought up at any level of the proceedings even for the first time on appeal whether at the Court of Appeal or Supreme Court. It would therefore be self-defeating, if there must be leave of Court before it can be raised or that where the leave has not be obtained previously to raise it, the proceedings are vitiated. That cannot be part of our adjudicatory system. See FRN v. Ifegwu (2003) 15 NWLR (Pt.842) 113 at 212. I shall make further references to some dicta of this Court for emphasis. Bello, CJN in Utih v Onoyivwe (1991) 1 SCNJ 25 at 49 aptly captured its fundamental nature in adjudication. He viewed it in an organic form thus; “Moreover, jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction; the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.” OKORO V EGBUOH (2006) 15 NWLR (PT.1001) 1 AT 23 – 24 PER TOBI JSC stated thus: ”Although jurisdiction is a word of large purport and significance in the judicial process, it is not a subject of speculation or gossip. It is a matter of strict and hard law donated by Constitution and Statutes. It is a threshold issue, the blood that gives life to the survival of the action and occupying such an important place in the judicial process…” Per PETER-ODILI, J.S.C.
The contention that ground 1 and its particulars are contradictory cannot stand because it is a challenge to jurisdiction and rules cannot interfere with the right to challenge jurisdiction because there is no standard or circumscribed format for raising a challenge to jurisdiction.

The challenge to grounds 2 is alleging that it makes no meaning, vague, imprecise and difficult to understand because its particulars alleged there were two addresses for the appellant without stating the correct one. A vague ground of Appeal is that which is imprecise, not cogent, and not concise. It is inaccurate, verbose, large, rigmarole, vague, which is capable of making the Appeal Court or the Respondent to the Appeal not to understand what it exactly connotes. The complaint here is one of form and not substance. Reading through ground 2 and its particulars, it is clear that the ground raises a complaint that its right to fair hearing was breached, here too, fair hearing is a fundamental right guaranteed by the 1999 Constitution (as amended). It is also fundamental and important that as long as the complaint is discernible from the ground, it will be allowed. The rule on formulation of Grounds of Appeal is designed to ensure fairness and to determine substance rather than form, substantial justice is the objective. Just like the importance of jurisdiction, the next class in terms of importance is fundamental rights particularly right to fair hearing. The objection against grounds 1 and 2 is misconceived.

Next is the objection on ground 3 and 4 which alleges that they are grounds of law and mixed law arising from an interlocutory ruling and leave of Court is a precondition. It is a constitutional requirement that in an interlocutory Appeal on grounds of mixed law and facts leave is required, see Section 241 of the 1999 Constitution provides for Appeals as of right. It is indubitable that interlocutory Appeals on grounds of mixed law and fact must be preceded by leave of Court. This is an interlocutory Appeal and the Court has to resolve the nature of the Grounds of Appeal herein to see if they can be sustained.
The expression “grounds of mixed law and facts” is not a term of art. It is not a magic wand that can convert a Ground of Appeal from one class to another one. The fact that a Respondent in his objection classifies a ground as one of mixed law and fact does not automatically make the ground so, because the Court has to determine where the ground falls. A guide on how to distinguish the different Grounds of Appeal was given by the Supreme Court in FBN PLC V T.S.A. INDUSTRIES LTD (2010) LPELR- 1283(SC) as follows: “The important yardstick for the classification of a Ground of Appeal is not in the form of the question it raises but for instance – (a) where the ground of Appeal shows that the Trial Court or Appellate Court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law. (b) Where the ground suggests an invitation to the Court where an Appeal is lodged to investigate the existence or otherwise of certain facts made by the trial Court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best a ground of mixed law and fact. (c) Where the questions which the Court is bound to answer in accordance with a rule of law arises out of statutory provisions and interpretation of documents, it is a ground of law, (d) Where the question is one that will require questioning the evaluation of the facts by the Trial Court before application of the law, it is a ground of mixed law and fact. (e) Where the Ground of Appeal questions the exercise of the discretion by a Trial Court, it is undoubtedly not a ground of law but at best a ground of mixed law and facts because the manner in which a Court ought to exercise its discretion in a particular case is a question of fact depending on facts and circumstances of each case. (f) Whether or not discretion is exercised judicially and judiciously or arbitrarily in any particular case is a question of mixed law and fact. (g) A Ground of Appeal complaining of failure of the Court to discharge its duty considering and pronouncing on the issues raised before it is a question of law. (h) A Ground of Appeal which is a complaint of the misapplication of correctly stated principles of law to the facts of a case is a ground of law alone. NWADIKE & ORS. V. IBEKWE & ORS. (1987) NSCC VOL.18 PT.11 PG.1220 ABIDOYE V. ALAWODE (2001) 6 NWLR PT. 709 PG. 463. EZEOBI V. ABANG (2000) 9 NWLR PT.672 PG.516. AGBAMU V. OFILI (2004) 5 NWLR PT.863 PG.540. METAL CONSTRUCTION (WA) LTD. V. MIGLIORE (1990) 13 NWLR PT.635 PG.472. COMEX LTD. V. NIGERIA ARAB BANK LTD. (1997) 3 NWLR PT. 496 PG. 643. COKER V. U.B.A. PLC (1997) 2 NWLR PT. 490 PG.641.”
Against the guideline provided above, grounds 3 and 4 shorn of their particulars, individually states thus:
GROUND 3:
The learned Trial Judge erred in law when he held that the Affidavit of Queen Ndeka Mrs dated the 6th day of February, 2017 and filed on the 7th February, 2017 in support of the motion on notice was worthless and incompetent.
There are 6 particulars accompanying the ground and a careful examination of the particulars clearly shows that the complaint is the application of law to facts. That means the ground falls into the category of a ground of law because the Appellant is complaining about the wrong application of law which led the Court below into error.
GROUND 4
The learned Trial Judge erred in law when he held that the Affidavit of service of the Bailiff of the Lower Court is a conclusive proof of service on the Appellant despite the affidavit of Queen Ndeka Mrs. dated the 6th day of February, 2017 and filed on the 7th February, 2017 in support of the motion which challenges the service.
Ground 4 is supported by 4 particulars, the details of particulars to ground 4 also highlights and allege the error of the Trial Court in applying the law on the issue of Bailiff’s Affidavit of service and an Affidavit challenging such bailiff’s affidavit, it is also a ground of law. It calls the attention of the Court to the failure of the Court below to apply the law on how a bailiff’s Affidavit of service can be challenged, misapplication of law. That is a ground of law. Being grounds of law, the Appellant had no need to seek leave to Appeal because the grounds are grounds of law which do not require leave of Court. Leave is required only when the Grounds of Appeal are not grounds of law.

The whole purpose of a Ground of Appeal is to give sufficient notice and information to the Respondent on the precise nature of the Appellant’s complaint against the judgment appealed against. All the rules relating to formulation or drafting of Grounds of Appeal are primarily designed to ensure good notice and fairness to the other side. No Court should rely on mere technicalities to shut out an intending Appellant on the ground of inelegant drafting of Grounds of Appeal. See ADEROUNMU V. OLOWU (2000) 4 NWLR (PT. 652) 253; HAMBE V. HUEZE (2001) 4 NWLR (PT. 703) 372.

Flowing from above, the Preliminary Objection is incompetent and is hereby dismissed.

MAIN APPEAL
Having dismissed the Preliminary Objection, attention shall be turned to the main Appeal. I have perused the Notice of Appeal, the record of Appeal and the briefs of counsel for the Appellant and the 1st Respondent, I am inclined to adopt the issues formulated by the Appellant the initiator of the Appeal, in doing so all areas of complaint would be considered. The issues shall be resolved seamlessly.

APPELLANT SUBMISSIONS
The Appellant submitted that when a writ is issued the next important step is proper service on defendants named therein. He reiterated the fundamental nature of service which has a jurisdictional dimension and that they deposed to facts to show that the Appellant was not served with the Originating Processes even though Counsel to the 1st Respondent informed the Court below that the Appellant was served (page 218 of the record). He observed that there was no affidavit or certificate of service on the Appellant at the registered address at No.39A Justice Mustafa Street, Farm Centre, Kano in the Record. He went on to submit that the affidavit of service sworn to by one Yau Mohammed (Bailiff) states that it was personal service and the question is on whom? This is because the Appellant is a company and service should be at the registered office and not personal service. He referred to Section 78 of Companies and Allied Matters Act, 2004 and Order 11 Rule 8 of the Rules of the Court below. Referred to LEADERSHIP NEWSPAPER GROUP LTD V MANTU (2017) 2 NWLR (Pt. 1548) 15 which held that in such a situation, an endorsement by the person personally served should be produced in a disputed case. If the process was left, the person it was left with should also be named but the 1st Respondent failed to establish who was served. Furthermore, the Appellant referred the Court to the affidavit in support of motion to challenge service where they contested service and the affidavit at pages 178-183 talks about service of hearing Notices and not originating processes and the challenge was that originating processes were not duly served. He relied on SKENCONSULT (NIG) LTD V UKEY (1981) 1 SC and ODUA INVESTMENT CO. LTD V TALABI (1997) 10 NWLR (Pt. 523) 1. The effect of failure to serve Originating Processes robs the Court of jurisdiction as held in FBN V OBANDE (1998) 2 NWLR (Pt. 538) 410; BABALE V EZE (2011) 11 NWLR (Pt. 1257) 48 and MARK V EKE (2004) 1 SCNJ 245. The Appellant submitted that such failure also makes any subsequent proceedings null and void as decided in JULIUS BERGER (NIG) LTD V FEMI (1993) 5 NWLR (Pt. 295) 612; B. O. I. LTD V ADEWALE-ADEDIRAN (2015) 17 NWLR (Pt. 1487) 114; NWABUEZE V OKOYE (1988) 4 NWLR(Pt.91) 664. The Appellant urged the Court to hold that the Trial Judge erred in finding that there was service of Originating Processes.

The Appellant further submit that its right of fair hearing was breached, relied on AGBITI V NIGERIAN NAVY (2011) 12 NWLR (Pt. 1236) 175 to urge that the proceedings conducted by the trial Court be set aside.

The Appellant reiterated the legal requirement of service on a corporate body to submit that failure to adhere to the legal requirements nullifies all the proceedings conducted by the Trial Court.

On issue 2 the Appellant submitted that the ruling of the trial Court declaring the Affidavit of Mrs. Queen Ndeka incompetent on the basis of failure to affix her seal is wrong. The Appellant referred to Rules 10(1), (2) & (3) of the Rules of Professional Conduct for Legal Practitioners 2007 to contend that a deponent (witness) to an affidavit is not contemplated by the provisions and therefore not applicable to a deponent and in any case such documents are merely rendered voidable and not incompetent, he cited SENATOR BELLO SARKIN YAKI V SENATOR BAGUDU (2015) 18 NWLR (Pt. 1491) 288 and NYESOM V PETERSIDE (2016) 7 NWLR (Pt. 1512) 452 to contend that failure to affix seal and stamp does not render a document null and void. The Appellant further submitted that the affidavit satisfied legal requirements for a competent affidavit.

The Appellant also referred to their letter to the Registrar of the Court below informing the trial Court that the seal had been paid for but yet to be issued by the Nigerian Bar Association; they attached receipts evidencing payment.

On issue three, the Appellant argued that affidavit of service is prima facie evidence that service was effected but not conclusive proof of service, and relied on N.I.P.S.S V KRAUS THOMPSON ORG. LTD (2001) FWLR (Pt. 45) 702 and UKO V EKPENYONG (2006) ALL FWLR (Pt. 324) 1927. He submitted that the affidavit of service was challenged by the affidavit and filed specifically to challenge the alleged service and not the affidavit in support of the motion contesting service of originating processes. More so, the Bailiff’s affidavit lacked material particulars, citing RECTOR KANO STATE POLYTECHNIC V DAN AGUNDI (2002) FWLR (Pt. 127) 1058. He contended that affidavits of service relied on by the Trial Court were for hearing notices and none for originating processes and where affidavits are in conflict, the proper way to proceed is to call for oral evidence, citing I. H. LTD V SONEB ENT. LTD (2010) 4 NWLR (Pt. 1185) 561 and G.M.O.N & S. CO. LTD V AKPUTA (2010) 9 NWLR (Pt. 1200) 443.
He urged the Court to allow the Appeal.

In response, the 1st Respondent in support of its 3 issues submitted that the Trial Judge was right in arriving at the decision because there was proof of service at pages 159- 165 and 169-183 of the Record. The 1st Respondent argued that that page 159 clearly shows Originating Processes were served on the Appellant by dropping it at the said registered office. The Respondent submitted that the Appellant did not challenge the Affidavit of service and instead filed a Motion to set aside the proceedings. He argued that an unchallenged Affidavit remains valid, relied on DAGAZAU V BOKIR INT. CO. LTD (2011) 14 NWLR (Pt.1267) 261. He submitted that the procedure to challenge Affidavit of Service is by filing a Counter Affidavit, citing AHMED V AHMED (2013) 15 NWLR (Pt. 1377) 274 to submit that evidence of service was not rebutted. The 1st Respondent submitted that Appellant gave 2 addresses for service on the writ of summons and the allegation that service was not effected at the registered office was not provided is baseless and unnecessary. Learned Counsel contended that there was service at No.39A Dahiru Mustafa Avenue, Farm Centre Kano State, referred to page 229 of the Record in the manner of Section 78 CAMA and Order 11, Rule 8 of the Rules of the Court below. The 1st Respondent argued that the rules allow leaving the processes at the registered office which was done by the Bailiff particularly where the principal officers were unavailable, the processes can be left at the office, relied on NBC V UBANI (2014) 4 NWLR (Pt. 1398) 421 to contend that the originating processes were duly served.

On the issue of fair hearing, the 1st Respondent submitted that Appellant was given an opportunity to defend the suit, referred to L.G.A. V AJE PRINTING (NIG) LTD (2009) 4 NWLR (Pt. 1131) 304 and IMASUN V UNIVERSITY OF BENIN (2010) 3 NWLR (Pt. 1182) 591 to submit that fair hearing is not an abstract term but one that has to be made out. He submitted that the Court will not wait for a party as held in U.B.A. PLC V J.M. & CO.LTD (2016) 5 NWLR (Pt. 1504) 171 and fair hearing was not breached.

On issue 2, the 1st Respondent submitted that the Appellant did not have a competent affidavit before the Trial Court for lack of seal as required by Rules 10(2) and (3) of the Rules of Professional Conduct, 2007. The 1st Respondent agreed that a process filed by a legal practitioner without seal is voidable and noted that there was no application by the Appellant to regularize the voidable process and when the law stipulates the method be employed, that is the only method allowed, relied on NWANKWO V YAR’ADUA (2010) 12 NWLR (1209) 518.

The 1st Respondent agreed with the findings of the Trial Court on lack of seal because the Appellant could have used a different deponent for the Affidavit in support of Motion seeking to set aside proceedings. In the alternative, the 1st Respondent submitted that even if the Affidavit could be looked at, that is still not proof that the Appellant was not served with originating processes.

On issue three the 1st Respondent submitted that absence of Counter Affidavit to the Affidavit of Service means the Affidavit of Service was not challenged. He agreed that an Affidavit of Service is rebuttable but it was not rebutted and therefore it raised a presumption that processes were served, relied on AFRIBANK (NIG) PLC V YELWA (2011) 12 NWLR (1261) 286 to submit that the Trial Court was right to accept the Affidavit of Service. He further cited I.B.W.A. V SASEGBON (2007) 16 FWLR (Pt. 388) 1099 on the method to challenge an Affidavit of Service. Furthermore, it is the document which is part of the Record of Court that the Trial Court relied upon to arrive at the decision appealed against, relied on AMIKA V IRONBAR (2012) ALL FWLR (Pt. 640) 1376 to say the Trial Court couldn’t have ignored it. He finally urged the Court to dismiss the Appeal.

In reply, the Appellant submitted that the Appellant’s Counter Affidavit to the Affidavit of MOHAMMED OBANSA is at PAGES 198-200 of the Record of Appeal so the Appellant filed a Counter Affidavit as required by law and it is contrary or rebuttable evidence as required by EMEKA V OKOROAFOR (2017) 11 NWLR (Pt. 1577) 410. And that the presumption of regularity is also rebuttable, relied on KENNEDY V INEC (2009) 1 NWLR (Pt. 1123) 614 which held that a bailiff’s affidavit is prima facie proof and not final proof of service. Appellant argued that they presented evidence to displace the evidence of the bailiff.

Continuing with the reply, the Appellant submitted that the contention that the Appellant being a corporate body can only supply information through its secretary or directors is wrong and not supported by law or authority because Section 78 and the Rules of Court did not mention any such thing. Appellant submitted that the information by an officer of the company satisfies the requirement of law. It finally urged the Court to allow the Appeal.

RESOLUTION:
The Appeal revolves around a narrow compass of whether the Appellant was duly served with originating processes in the main suit and other supplementary issues related to the basic question. The service of originating processes is fundamental in any adjudication. The law is well settled that service of a process on a party to a proceeding is fundamental. It is due service of process that confers jurisdiction on the Court seised of the matter. Where there is failure to serve a process as required, on the person entitled to be served, if not so served, is entitled, ex debito justiticae to have it set aside. See S.G.B.N. LTD. VS. ADEWUNMI (2003) 10 NWLR (PT.829) 526; MARK VS EKE (2004) 5 NWLR (PT.865) 54; TSOKWA MOTORS (NIG.) LTD. VS UBA PLC (2008) 2 NWLR (PT. 1071) 347. Failure to effect service of an initiating process on a party where service is required renders the proceedings null and void and of no effect. Service of an originating process, such as the Writ of Summons, Originating Summons, Notice of Appeal, etc., is fundamental and goes to the root and the competence of the Court to adjudicate. Where an originating process has not been served on the adverse party, the non-service vitiates the entire proceedings and any orders made therein. The premise for this proposition is that a party to a proceeding should know or be aware that there is a case against him in order to afford him adequate opportunity to defend himself if he desires to do so, see ODUTOLA VS KAYODE (1994) 4 SCNJ 1; LEEDO PRESIDENTIAL HOTEL LTD. VS B.O.N LTD. (1998) 10 NWLR (PT. 570) 353 @ 381 B; OKOYE VS C.P.M.B LTD. (2008) 15 NWLR (PT. 1110) 335; SKENCONSULT NIG. LTD & ANOR VS UKEY (1981) 1 SC 6 @ 26.
It is also in keeping with the principle of fair hearing enshrined in Section 36(1) of Constitution, as amended.

The main issue here is the contention that the Appellant, a corporate entity was not served as required, a contention stoutly denied by the 1st Respondent. The Appellant’s registered office was given as No: 39A Justice Dahiru Mustapha Street Farm Centre Kano, Kano State. Service on a company duly incorporated under the companies and Allied Matters Act, 2004, Section 78 provides for service of Court processes on a company and it says:
“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 or sending it by post to the registered office of the company.”
The section referred to the rules of Court and High Court of the Federal Capital Territory, Abuja Civil Procedure Rules also has a provision in Order 11 Rule 8 and it says:
“When a suit against a corporate body authorized to sue and be sued in its name or in the name of an officer or trustee, the document may be served, subject to the enactment establishing that corporation or company or under which it is registered, as the case may be, giving the writ or document to any director, secretary or any principal officer, or by leaving it at the corporate office.”
The manner a company should be served has been settled in a number of cases, see MARK V EKE (supra) which held thus:
“The mode of service on a limited liability company under the relevant rules of Court is different from service of process on a natural person such as the 1st appellant. The Companies and Allied Matters Act by Section 78 makes a provision as how to serve documents generally on any company registered under it. By this, a Court process is served on a company in the manner provided by the rules of Court. A service on a company, as this provided, must be at the registered office of the company and it is therefore bad and ineffective if it is done at a branch office of the company. See Watkins v. Scottish Imperial Insurance Co. (1889) 23 QBD 285. The procedure is by giving the writ to any director, trustee, secretary or other principal officer at the registered office of the company or by leaving the same at its office…”
Obviously, personal service is out of the question when service on a company is in issue. It is settled that because a company is an artificial person, there cannot be personal service and the service on a company must be as provided by the Law and rules of Court. Any defect in serving a company as provided will vitiate any proceedings taken upon such defective service, see ESTATE OF LATE CHIEF HUMPHREY I.S. IDISI V ECODIFIL NIGERIAN LIMITED & ORS (2016) LPELR 40438 (SC).
There is an obvious defect in the certificate of service that said service of writ and order of Court was personal. Let’s assume that it was the method stated in the subsequent mode, leaving it at the premises of the registered office of the Appellant. Leaving it at the office has also been interpreted to mean leaving it with a person identifiable and it must be so stated in the affidavit of service, see GITTO CONSTRUCTION GENERALI V EMMANUEL SIMON UDOITUEN (2019)(LPELR – 48147 (CA), which held;
“The service in issue here is meant to be effected on the Appellant, a company whose address for service is in Abuja and to be effected on the General Manager of the Appellant. The contention of the Appellant is that service was effected contrary to the provisions of the Company and Allied Matters Act and the rules of Court because service was effected by courier which they admit is allowed by the rules of Court but for a different class of parties not the Appellant. The service in this case was effected on one Everest who is unknown, not shown to be a staff, director or company secretary and not even the General Manager named on the process as the person to be served. …… It is not disputed that MARK VS. EKE (supra) settled the vexed issue of whether service on a company can be by substituted means, it held thus: “The need for substituted service arises because personal service cannot be effected and since personal service can only be effected on natural persons, the procedure for substituted service cannot be made on a corporation… It is inherent in the nature of companies that humans act for the company and the various officers listed by the rules of the Court below are deemed to have sufficient authority to receive service on behalf of the company, these are director, secretary, trustee or other senior, principal or responsible officer or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction, see Order 7 Rule 9 (1) of the Rules of the Court below. The Company and Allied Matters Act require that processes be served on a company by leaving it at, or sending it by post to the registered office of the company. In fact, in a situation where service is not being effected on any of the officers of the company named in the rules, CAMA defers to the rules of Court and the rules here allows leaving the processes at the place of business of the company in addition to serving the named officers and leaving it at the place of business means serving persons other than those named but on some other at the place of business in which case, the party serving does not need to name any body but it must be duly acknowledged by the person receiving with required endorsement done, see COTTON & AGRIC PROCESSORS LTD. VS. DG ITF (LPELR-40878(CA) which explained service on a company thus: “Now, the Appellant did not contest or deny that the address where the bailiff stated that service was carried out was its registered office or principal place of business. In Ranco Trading Company Ltd v. Union Bank of Nigeria Ltd (1998) 4 NWLR (Pt 547) 566 and in Nigerian Agricultural & Cooperative Bank Ltd v. Ono Foods Development Company (Nig) Ltd (2006) 9 NWLR (Pt 985) 323, the Court of Appeal stated that service of process by leaving it at the office of the company is done when the process is handed in at that office and its receipt is duly acknowledged by anyone ostensibly authorized to receive documents in that office. Similar stance was taken by the COURT OF APPEAL IN INTERNATIONAL BANK FOR WEST AFRICA VS. SASEGBON (2007) 16 NWLR (Pt 1059) 195. In MULTICHEM INDUSTRIES LTD. VS. MUSA (2013) 8 NWLR (Pt 1356) 404, it was stated that receipt of such processes by a person described as a receptionist was proper service. An affidavit of service should contain the following: i. Name of bailiff; ii. Date of service; iii. Name of person upon whom the process was served; iv. Mode of service; v. Description of process/document served; vi. Place of service. See OKEKE VS. A.G. ANAMBRA STATE (1997) 9 NWLR (PT. 519) 123 at 149. Improper service divests the Court of jurisdiction. See MATAHOR & ANOR. VS. IBARAKUNYE (2017) LPELR-43346 (CA). It held: “Having regard to the facts of this case, as fully set out and demonstrated in the leading judgment, the effect of the improper service complained of is the same as that of non-service. It should be borne in mind always that the effect of non-service, where service is required, is that the Court is deprived or divested of its competence and jurisdiction to entertain the cause or matter. See MOHAMMED MARI-KIDA VS. A.D. OGUNMOLA (2006) 13 NWLR (Pt.997) 377 at 396, per KATSINA-ALU, JSC (as he then was) and United Bank for Africa Plc vs. MAGAMA (NIG.) LTD. & ANOR. (2013) 16 NWLR (Pt.1379) 36 at 55, PER IYIZOBA, JCA.”…It will save time and resources of parties who have to ensure processes are duly served. See ANI & ORS. VS. EFFIOK (2011) LPELR-4831(CA) which held: “The law and practice are settled for all times, that it is the bounden duty of a Court to confirm and/or verify that there is proper proof of service of the relevant Court process on the other party who may be affected by the outcome of a proceeding before the Court. Thus, where a party was neither present in Court nor represented by a counsel, the Court should not rely simply on the viva voce statement by its registrar, that there was service of the requisite Court process. Rather, the Court itself, should examine the proof of service which must be placed before it, in order to determine and satisfactorily too that the process was actually served and the particular person who was served, with what and when the said service was effected. Importantly, the conduct of all these steps should be borne out by the trial Court’s record of proceedings. See F. B. N. PLC VS. T. S. A. INDUSTRIES LTD. (2010) 15 NWLR (pt. 1216) 247…
The contention of the 1st Respondent is that there was affidavits of service on the Appellant at its registered office and referred to page 159-165 of the record of appeal. I have looked at page 159 and therein is a certificate of service of a Writ of Summons and Court order, it reflects service on 1st and 2nd Defendants, however, there is also the registered office of the Appellant written there against the 2nd Defendant, the certificate was made by Gambo A. Mohammed. There is an affidavit of service at page 160 deposed to by Ya’u Mohammed, Bailiff and it says service of the Writ of Summons was effected on the Appellant at 39A Justice Dahiru Mustapha Farm Centre, Kano on the 19th June, 2015 and it said the processes were served. There are other certificates and affidavits of service of subsequent processes such as hearing notices at the same address by dropping same at the Registered Office. The 1st Respondent’s counsel merely informed the trial Judge that the Appellant was served and that the matter could proceed to trial and the Court proceeded with hearing without verification. Can the Appellant be served personally as would a human being when it is a company duly registered under CAMA? Obviously not, from that alone, the service was defective and not done according to law.

Furthermore, when the Rules of the Court below say that a company can be served by leaving the processes at the registered office, the protocol established earlier in this judgment must be observed, such is naming who it was left with and his designation. To just say it was dropped at the registered office cannot satisfy the requirement of law, the relevant particulars must be stated. So the processes dropped with no named person were not served. The Trial Court at pages 229-230 in its ruling accepted the defective mode of service without looking carefully at the manner the service was carried out. The Affidavits referred to were in respect of hearing notices when the process that bestows jurisdiction, the originating process was not properly served. Any defective service of originating processes divests the Court of Jurisdiction, see OKPE V FAN MILK PLC & ANOR (2016) LPELR-42562(SC) where the apex Court held:
“An originating process is the foundation stone of any proceedings in any Court. It thus, affects the jurisdiction of that Court. No Court of law can assume jurisdiction through a defective originating process. If it does, the proceeding however well conducted will amount to a nullity. As a nullity, nothing more can competently be considered in this appeal. All other issues formulated by the respective parties’ collapse and are accordingly struck out.”
See also FBN PLC V OBANDE (1998) 2 NWLR (Pt. 538) 410 at 418; BABALE V EZE (2011) 11 NWLR (Pt. 1257) 48; B.O.I. LTD V ADEWALE- ADEDIRAN (2015) 17 NWLR (Pt. 1487) 114; OTU V ACB (2008) 1 SCNJ 189 and MARK V EKE (supra).
The Trial Court therefore had no jurisdiction to proceed to hearing without ensuring that the Appellant was duly served and that breached the Appellant’s right to fair hearing. The right to fair hearing is a constitutional issue and all parties before the Court must be given fair hearing. The foundation is that a party sued must be served with initiating processes to enable him know what is against him, it is a condition precedent and one of the ingredients of jurisdiction and bestowing the Court with competence.

The issue of the competence of the Affidavit of Mrs. Queen Ndeka dated 6th February, 2017 was also on the front burner. The Court below discarded the affidavit on two grounds, one of the reasons was that the informant to the deponent is not a principal officer of the Appellant and therefore cannot inform the deponent. The requirement of Section 115(1), (3), (4) of the Evidence Act provides thus:
(1) Every affidavit used in the Court shall contain only a statement of facts, and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.
The law did not say that an informant in matter relating to a company must be a principal officer of such a company. The conditions for particulars required by the law are clearly stated and the affidavit in issue satisfied the law. The law does not require the deponent to go beyond the informant for other second degree informants. It has been stated times without number that counsel should be wary of deposing to affidavits concerning facts which are from primary knowledge of their clients because they may run into problems. However, the fact remains that the method of how the deponents’ informant got his information is not a legal requirement. The trial Judge was wrong to go into that second degree level of particulars of the informant and the law does not say that only principal officers can be informants. What the law requires was stated in JOSIEN HOLDING LTD & ORS V LORNAMEAD & ANOR (1995) LPELR-1634(SC) as follows:
“Now, an affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge, information or belief. It must contain only those facts of which the maker or deponent has personal knowledge or which are based on information which he believes to be true (see Section 85 of the Evidence Act). In the latter case he must also state the grounds of his belief (Section 87 of the Act) and state the name and full particulars of his informant (see Section 88 of the Act). No legal arguments, conclusions or other extraneous matters must be included (see Section 86 of the Act).”
An affidavit will be discountenanced when it offends the provisions of the Evidence Act and not otherwise. The Trial Judge erred in this regard.

The second angle on which the affidavit was discarded was the fact that the deponent who is a legal practitioner did not affix her seal to the affidavit. The said deponent wrote the Court and attached evidence of payment for the seal which was not yet produced by NBA. The Court discountenanced all that and went on to discountenance the affidavit. See OSENI V OYETORO & ORS (2018) LPELR-44326(CA) which held thus:
“it is now settled, beyond any per adventure, that a Court process that is void of the requisite seal and stamp of the Nigerian Bar Association is not null and void, but is tainted with an irregularity curable by an application for an extension of time and deeming order to regularise it, see Yaki v. Bagudu (supra); Nyesom v. Peterside (2016) 7 NWLR (pt. 1512). It stems from these ex cathedra authorities, that even if the process were to be devoid of the seal and stamp of the Nigerian Bar Association, it is divorced from being null and void, as pontificated by the appellants, but remediable/repairable on the supplication of Respondents.” Per OGBUINYA, J.C.A
It is the duty of the Nigerian Bar Association upon payment by the legal practitioner, to produce the seal for the legal practitioner. However, where a legal practitioner has done what is required of him within time and the failure to produce the seal within such time for the use of a legal practitioner is purely on the Bar Association, would such a practitioner be denied the right to practice for the fault of the Bar Association. I think that will be most unjust particularly where such a practitioner has put forward evidence of payment and the attention of the Court is drawn to it, see also the case of TODAY CARS LTD V LASACO ASSURANCE PLC & ANOR (2016) LPELR- 41260 (CA) wherein my learned brother OGAKWU, JCA said as follows:
“By the provisions of Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007, the Nigerian Bar Association Stamp and Seal is to be affixed on every document to be signed and filed by a legal practitioner; where this is not done, such a document shall be deemed not to have been properly signed or filed: YAKI VS BAGUDU (supra). Doubtless, there is no Nigerian Bar Association Stamp and Seal on the Appellant’s Brief. The Appellant has however submitted that its counsel has done all on its part to obtain the Seal and that the failure by the Nigerian Bar Association to issue the Seal should not be visited on the Appellant. The Appellant’s Brief was filed on 27th April, 2016. Attached to the Appellant’s Brief is an Access Bank deposit slip showing that the Appellant’s counsel, Peter Ikechukwu Ozobialu, Esq., paid for the Nigerian Bar Association Stamp in February 2016, a clear two months before the Appellant’s Brief was filed. Now, in these circumstances will it be in consonance with the dictates of justice for the Appellant’s brief to be said to infringe the provisions of Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007, given the fact that the Appellant’s counsel has done all that is required of him in order to comply with the stipulation of the Rule. I think not. It is my considered view that having paid for the stamp and seal, all that remained was the domestic affair of the Nigerian Bar Association Secretariat and where like in this situation the Nigerian Bar Association Secretariat is tardy, such tardiness cannot be visited on the Appellant as all required to be done on the part of the Appellant’s counsel has been done. See OGBUNYIYA vs. OKUDO (NO.2) (1990) 4 NWLR (PT 146) 551 at 560B, 561H – 562A and 571E and ALAWODE vs. SEMOH (1959) 4 FSC 27 at 29. “It is pertinent to add that the rationale behind the requirement for affixing stamp and seal to legal documents seems to be to checkmate quacks in the legal profession, but more importantly, to ensure that legal practitioners fulfill their financial obligations in that regard to the Nigerian Bar Association. The Access Bank deposit slip attached to the Appellant’s brief shows that the Appellant’s counsel has discharged his financial obligations to the Nigerian Bar Association. To hearken to the 1st Respondent’s argument and hold in the diacritical circumstances of this matter that the Appellant’s brief was not properly filed will be turning justice on its head, and in fact inculcate injustice.”
​The deponent to the affidavit having done all that is legally required of her and also brought such evidence to the attention of the Court, it was wrong of the Trial Judge to strike out the Affidavit on this ground.

Furthermore, on this issue of an incompetent Affidavit, should it defeat a challenge to the jurisdiction of the Court? Jurisdiction is very important to any adjudication and it has no specific form of raising it, it can be raised orally, even at the Supreme Court and when done, it must be determined because no valid proceedings can stand when the Court lacks jurisdiction, see BRAITHWAITE V SKYE BANK PLC (2012) LPLER-15532(SC) which held:
“The preliminary objection has to do with the competence of the appeal and the Court’s jurisdiction to entertain same. Both are very basic and fundamental. Objection may be raised at any time by the parties in any manner deemed fit or by the Court suo motu. It may be raised before any Court; even for the first time in the Apex Court.”
It follows also that a defective process should not defeat an objection to jurisdiction, it is important that a Court is certain that it has jurisdiction before proceeding to determine any suit and for obvious reasons. The striking out of the affidavit and the finding that the application must fail because the application was worthless and incompetent was in error.

The Trial Court held erroneously that the bailiff’s affidavit of service was conclusive proof of service was erroneous because the Trial Judge failed to verify from the said affidavits that the mode of service was not as allowed by law and if it had taken time to do that, it couldn’t have arrived at that conclusion. A bailiff’s affidavit is rebuttable evidence that the party named therein was served. Of course, the trial Court will be right to believe its officer who has sworn to the facts of service on oath but such could be proved wrong upon a challenge by the party allegedly served. Such affidavit is not conclusive proof but rebuttable evidence; see NIPPS V KRAUS THOMPSON ORGANISATION LIMITED (2001) FLWR (Pt. 45) 702 and UKO V EKPENYONG (2006) ALL FWLR (Pt. 324) 1927 where it was held:
“An affidavit of service is prima facie evidence of service which can be rebutted and changed. It is not conclusive proof of service once its contents are challenged, the Court must reach a decision based on available contending affidavit or by calling oral evidence.”
If the Trial Court tried to verify the affidavits of service, the error could have been avoided. The Court below merely assumed that the affidavits named at pages 229-230 were proper but they are worthless having not been effected according to law and in this case not conclusive proof that the Appellant was service according to law, see KENNEDY V INEC (SUPRA). It is also clear on the record that the Appellant filed an affidavit to challenge the bailiff’s affidavit of service, see Pages 198-200 of the record, the contention of the 1st Respondent is therefore not correct. I agree with the Appellant that a good affidavit of service should contain necessary particulars as stated earlier and as set out in the case of EMEKA V OKOROAFOR (2017) LPLER- 417389SC) thus:
“Section 168 (1) of the Evidence Act, 2011 provides for the presumption of regularity of official acts. It provides thus; “(1) where any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.” The law is trite that an affidavit of service deposed to by the bailiff of a Court stating the Fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matter stated in the affidavit, See: Schroeder Vs Major (1989) 2 NWLR (Pt.101) 3 @ 11 E – H; Okoye Vs Centre Point Merchant Bank Ltd. (2008) 15 NWLR (Pt.1110) 335: Idisi Vs Ecodril (Nig) Ltd. (2016) LPELR- 40438 (SC). The law is equally settled that the presumption of regularity in this regard is rebuttable. A defendant who intends to challenge the affidavit of service deposed to by the bailiff must file an affidavit denying service and detailing specific facts, which show that he could not have been served on the date, or at the time, or at the place or in the manner deposed to. It would then be for the Court to determine whether or not the party complaining was indeed served accordingly.”
The Appellant herein disputed service as required by law, it filed an affidavit with facts to challenge the fact of being served by the bailiff.

Flowing from the resolution above, the Appeal is meritorious and is hereby allowed. The ruling of the Trial Court delivered on the 17th March, 2017 is hereby set aside. The purported service of the Writ of Summons on the Appellant on the 19th June, 2015 is hereby set aside. The proceedings conducted after the ruling of the 17th March, 2017 is also set aside. The Appellant must be served according to law.
Appeal allowed, I make no order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment just delivered by my learned brother, Yargata Byenchit Nimpar, JCA.

I am in agreement with the reasoning and conclusion that the appeal be allowed. I too, do allow the appeal and I abide by the consequential orders made in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Yargata Byenchit Nimpar, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

JOSEPH E. CHUKUEMEKA ESQ. For Appellant(s)

J. S. OKUTEPA, SAN, with him, EDE UKO NNEAMAKA ONYENA ESQ., HELEN J. APEH ESQ. and ONYINYE F. JEDIDAH ESQ. for 1st Respondent For Respondent(s)