ZENON PETROLEUM & GAS LTD v. AGIDEE
(2021)LCN/15856(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, February 26, 2021
CA/L/542/2008
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Between
ZENON PETROLEUM & GAS LIMITED APPELANT(S)
And
ADEKUNLE AGIDEE (Trading Under The Name & Style Of Novel Properties) RESPONDENT(S)
RATIO:
NON-COMPLIANCE WITH THE PROVISION OF COURT RULES
The High Court of Lagos State (Civil Procedure) Rules, Form 1 in the Appendix to the 2004 Rules of the trial Court applicable to the instant case does not imply that the writ should be signed by the Claimant’s counsel. The expressed signatories to the Writ under the 2004, Rules of the High Court of Lagos State were the Registrar and the process server (Bailiff) of the trial Court.
Since the introduction of the Uniform Rules, non-compliance with the provisions of the rules relating to filing of originating processes such process should not be accepted for filing and if filed will render a proceeding null.
Order 3, Rule 2(2) of the High Court of Lagos State (Civil Procedure) Rules, 2004 applicable at the time this suit was filed provides that:
“Where a claimant fails to comply with Rules 2(1) above, his originating processes shall not be accepted for filing by the Registry.”
This Order 3 makes it mandatory that Originating processes must be front-loaded both in the claim and the defence. The Courts have consistently held that failure to comply with the provisions attracts nullification of the proceedings. See Abe v. Skye Bank (2015). PER FATIMA OMORO AKINBAMI, J.C.A.
THE EFFECT OF NON-SERVICE OF AN ORIGINATING PROCESS
It is common ground that service of process is fundamental, the absence of which renders all proceedings taken void ab initio. This no doubt remains the position of the law, established in a long line of cases including Mark v. Eke (2004) 1 SC (pt.11) 1, where Musdapher, JSC stated that: “when an order is made or judgment entered against a defendant who claimed not to have been served with the originating process such an order or judgment becomes a nullity if the defendant proves non-service of the originating process.” See, Okoye vs. Centre Point Merchant Bank Ltd(2008) 15 NWLR (Pt. 1110) 335, NBN Ltd vs. Guthrie Nig. Ltd (1993) 3 NWLR (Pt. 284) 643 and NEPA vs. Uruakpa (2010) LPELR-4409 (CA). PER FATIMA OMORO AKINBAMI, J.C.A.
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the decision/ruling of the High Court of Lagos State (the lower/trial Court) presided over by Hon. Justice O.A. Ipaye, J. and delivered on 30th of November, and 7th of March, 2007 respectively, in Motion filed on 26th February, 2007 challenging the service of the Originating process on the Appellant, and Motion filed on 11th April, 2006 seeking judgment against the Appellant in default of appearance and defence.
BRIEF BACKGROUND FACTS
The Respondent by a Writ of Summons and Statement of Claim, claimed the sum of N4.3 Million (Four Million, Three Hundred Thousand Naira) being and representing one-third of the agency fee payable by the Appellant, to the Respondent in respect of the purchase of No 12, Temple Road, Ikoyi, Lagos at the interest rate of 20% per annum from February, 2004 till judgment is deliveredand 10% thereafter.
On the 30th of November, 2006 the lower Court determined Appellant’s application, and held that Appellant was properly served with the Originating process in the suit.
On the 7th of March 2007, the lower Court, followingarguments from both parties through their respective counsel, in a considered ruling, gave judgment in default of pleadings in favour of the Respondent against the Appellant.
Dissatisfied with the judgment of the lower Court, the Appellant filed a Notice of Appeal with three (3) grounds of appeal contained in pages 101-103 of the record of appeal. The Notice of Appeal was amended by order of this Court on the 5/10/18.
The Appellant filed a Brief of Argument on 7/8/18, but deemed properly filed on 9/12/20. The Appellant identified three (3) issues for determination in the appeal tied to grounds 1, 2, 3 and 4 respectively.
The Appellant argued in the brief that any action commenced before the Court must be initiated by due process of law, and any condition precedent necessary for the exercise of the Court’s jurisdiction must be complied with, citing in support the cases of Oni v. Cadbury Nigeria Plc (2016) LPELR-26061 (SC) 26-27 paras D-A; Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Ohakim v. Agbaso & Ors (2010) 19 NWLR (Pt. 1226) 172 page 6 paras D-F, and Obiuweubi v Central Bank of Nigeria (2011) 7 NWLR 465 page 23 paras B-E; Orakul Resources. Ltd v NCC (2007) 16 NWLR (Pt. 1060) 270 at 302 para B-D.
The Appellant also argued on the first issue that jurisdiction is a threshold matter, in that it is very fundamental as it goes to the competence of the Court to hear and determine a suit. Where a Court does not have jurisdiction to hear a matter, the entire proceedings no matter how well conducted and decided would amount to a nullity. He cited the case of Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR 465 page 23 paras B-E.
It was noted by Appellant that this suit was initiated in accordance with the High Court of Lagos State (Civil Procedure) Rules, 2004. And Order 6, Rule 2 (2) & (3) of the High Court of Lagos State (Civil Procedure) Rules, 2004 provides that each copy of the originating process shall be signed by the Legal Practitioner or by a claimant where he sues in person, and shall be certified after verification by the Registrar as being a true copy of the original process filed. He argued that the combined effect ofSections 2 and 24 of the Legal Practitioners Act, Cap 207, Laws of the Federation of Nigeria, 1990 as re-enacted in 2004, makes it mandatory that aClaimant is represented by a Legal Practitioner in any suit, the originating process therein must be signed and endorsed with the name of a solicitor whose name is on the roll of legal practitioners duly certified to practice in Nigeria.
The Appellant referred to the Writ of Summons filed by the Respondent at pages 1-2 of the record, that it was not signed by either the Claimant or the Claimant’s counsel as statutorily required. Therefore, it is incapable of activating the jurisdiction of the Court, he cited in support the cases of SLB Consortium v. N. N. P.C (2011) 3-4 MJSC 145, 166-167 paras F-A; Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) page 19 at 43; Jameon Nigeria Limited & Ors v. Isa Engineering Nigeria Limited & Anor (2018) LPELR 44297 (CA); Julius Berger Nigeria Plc v. Jameshill Associate Limited (2018) LPELR-44299 (CA); Ewukoya & Anor v. Buari & Ors (2016) LPELR-40492(CA); Cyril Obiakor v. Mr. lnnocent Okafor (2017) LPELR-43309 (CA); Eze v. Okechukwu (2015) 10 NWLR (Pt. 1467) 6 NWLR 307; Williams v. Adold/Stamm International (Nig) Ltd (2017) 6 NWLR (Pt. 1560) 1.
He reiterated the point,that the mere fact that the name Bamidele Ibironke, Esq was stated on the Writ of Summons does not dispense with the requirement of the law that the Writ of Summons must be signed by the Claimant’s lawyer. The defect cannot also be cured by other processes filed by the Respondent. He cited in support of the assertion the case of Muyiwa Odejayi & Anor v. Henley Industries Ltd (2013) LPELR 20368.
Appellant argued that, the Writ of Summons filed by the Respondent is void, incurably defective and cannot be treated as a mere technicality, which can be waived or brushed aside. He cited in support of his assertion the cases of Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010); Oluwatuyi v. Owojuyigbe (2015) All FWLR (Pt. 789) 1083 at 1097-1099; Ewukoya & Anor v. Buari & Ors (2016) LPELR-40492 (CA). He reiterated that, where a condition precedent to the exercise of jurisdiction is not fulfilled, then the proceedings before the Court, no matter how well conducted must be regarded as a nullity. He cited the cases of Tubonemi v. Dikibo (2006) 5 NWLR (Pt. 974) at 565 paragraph F; Orakul Resources Ltd v. NCC(2007) 16 NWLR (Pt. 1060) 270 at 302 para B-D andPurechem lndustries Limited v. Spica Shipping & 2 Ors. (2012) 13 NWLR (Pt. 1287), page 327.
He concluded that since the Writ of Summons filed by the Respondent in this case is void, the lower Court’s ruling of 30th November, 2016 and judgment delivered on the 7th March, 2007 made in pursuance of a void Writ of Summons are themselves void. He cited in support the cases of Unipetrol (Nig) Plc v Agip Nig Plc (2002) 14 NWLR PT.787 page 312-333; E.B.N Ltd v Halilco (Nig) Ltd (2006) 7 NWLR (pt. 980) page 568. He urged this Court to set aside both the ruling of the 30th November, 2016 and the subsequent judgment of the 7th March, 2007 both being nullity.
Appellant on issue two, “whether in view of the Affidavit evidence before the lower Court, the trial Judge was right when he held that the Appellant was properly served with the originating processes in this matter” argued that the learned trial Judge was wrong when he held that the Appellant was properly served with the originating processes in this matter. He contended that where there is no service of the originating processes on the Appellant, the proceedings of the Court,especially the judgment would be rendered null and void citing in support of his assertion the cases of Auto Import Export v. Adebayo (2002) 18 NWLR (part 799) 554; Skenconsult (Nig) v. Ukey (1981)1 SC 6 at 26; Mohammed Marikida v. A.D Ogunmola 2006) 12 NWLR (Part 997) 377.
Appellant contended that, the affidavit of service deposed to by the bailiff of the Court below, on the 16th January, 2006, wherein he alleged that he served the Originating processes of this suit on the Appellant on the 30th day of December, 2005 by delivering the said processes personally to the Appellant’s secretary, who allegedly refused to sign the endorsement copy of the Writ of Summons.
He argued that, in the affidavit of service, the bailiff failed to disclose the name/identity of the person whom he purportedly served personally. Secondly, the bailiff’s affidavit of service did not indicate whether the person allegedly served was a female or a male as is expected in the format of the affidavit of service utilized by the said bailiff.
Appellant argued that it was never served with the originating processes. Its company secretary swore to an affidavit:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
1. That there is an affidavit of service deposed to by one Patrick Olajide Joseph a bailiff to the effect that on the 30th day of December, 2005 the 1st defendant applicant was served with the originating process in this suit through its secretary who refused to sign for the same.
2. The Writ of Summons dated 28th December, 2005 filed in this suit, and the other originating Court processes were never served on secretary of the 1st defendant/applicant neither were they served on any member of staff of the 1st defendant/applicant as alleged.
3. The secretary proceeded on leave after work on the 29th of December, 2005 in order to organize the family for the forth-coming New Year weekend, and l was not in the office on the 30th day of December, 2005 the day the alleged service was effected on the 1st defendant/applicant as claimed.
4. The company authorized their counsel Mrs Badewole to accept service of the originating Court processes of this suit on behalf of the 1st defendant/applicant to enable the 1st defendant/applicant respond timeously to the claims in this suit once service is effected. See pages 43-44 of the record of appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Appellant contended that the legal effect of the affidavit quoted above are:-
1. That since the Appellant’s company secretary was absent from office on the 30th of December, 2005, the bailiff of the lower Court could not have effected personal service of the Originating process of this suit on the Appellant through the Appellant’s company secretary on the 30th of December, 2005 as alleged in the Bailiff’s affidavit of service sworn to on 16th January, 2006 thereby rendering the said affidavit of service invalid.
2. That the Appellant is prepared to accept service of the originating processes through counsel to enable it know the facts of the claim against it, and to file its statement of defence to the suit.
Appellant further submitted that the lower Court’s bailiff in his first affidavit of service alleged that he served the Appellant through the Appellant’s company secretary personally, while the same bailiff in his second affidavit of 9th October, 2006 alleged that he served the Appellant by leaving the originating processes in the office of the Appellant. These two modes of service which can only be adopted in the alternative are distinct and parallel. The bailiff’s subsequent affidavit evidence to the effect that he served the Appellant by leaving the originating processes at its office after deposing in an earlier affidavit evidence that he served an unnamed secretary personally is contradictory.
Appellant is of the view that, in spite of these two contradictory affidavits of service by the Court’s bailiff, on the mode of service adopted by the said bailiff, the learned trial Judge without calling oral evidence to resolve the contradictions, ruled that the Appellant was properly served by leaving the originating processes at its office.
It is Appellant’s view that the Court below was convinced that the mode of service adopted by the bailiff in effecting service on the Appellant was by leaving the originating processes at the office of the Appellant, and not by delivering the said originating processes to a staff of the Appellant personally as stated in the bailiff’s affidavit of service sworn to on the 16th January, 2006. He submitted that the contradictions in the two affidavits of service sworn to by the lower Court’s bailiff, were sufficient to make the learned trial Judge disregard the contents of both affidavits and set them aside. He cited in support the cases of Panache Communications Limited v. Aikhomu (1994) 2 NWLR (Pt. 327) page 420-428 paras D-E; Re-Shyllon (1994) 6 NWLR (Pt. 353) at 735-754 paras H-A.
The contradictions were pointed out by the Appellant at the lower Court, see pages 53-54 of the record of appeal, but the learned trial Judge overlooked this crucial issue in her ruling of 30th November, 2006, which did not refer to the contradictions at all. He argued that learned trial Judge ought to have considered the legal effect of the absence of the Appellant’s company secretary in the office at the
material time of the service, and thereby set aside the service effected through the Appellant’s company secretary on a day she was absent from the office.
It was argued by Appellant, that the Respondent did not contradict or challenge the Appellant’s company secretary’s deposition to the effect that she was absent from office on the 30th day of December, 2005, the day the lower Court’s bailiff claimed he allegedly served the originating processes of this suit on the Appellant through the said secretary. He pointed out the fact that, rather than contradict this averment, the said bailiff made a U-turn and alleged that he effected service on the Appellant by leaving the originating processes, at the office of the Appellant. The deposition of the Appellant’s secretary in paragraph 10 of the secretary’s affidavit remains unchallenged and ought to have been relied upon by the lower Court.
Appellant argued that, as the company secretary swore on oath that she was absent from work on that day, the learned trial Judge having acknowledged that complaint, ought to have given legal effect to the logical implication of the same as negating the deposition of the bailiff of the lower Court contained in the bailiff’s affidavit of service sworn to on 16th January, 2006. He reiterated the fact that on a fundamental issue such as the issue of service or non-service of originating processes on the Appellant, the bailiff ought to have contradicted the averments of the Appellant’s secretary by deposing to facts and circumstances as to how he met the Appellant’s secretary, on the day of service 30th December, 2005 naming the person he served personally, naming the person who directed him or pointed the secretary out to him, describing the location of the office where he effected personal service on the Appellant’s secretary, indicating the inscription/description on the door of the office of the secretary whom he actually served, and stating the gender of the person whom he served personally. All these details were left for the trial Judge to speculate upon. Arguing further, Appellant contended that the depositions contained in the bailiff’s counter-affidavit sworn to on the 9th of October, 2006 do not effectively contradict the specific depositions in paragraphs 3, 4, 8, 9 and 10 of the Appellant’s affidavit sworn to on 14th September, 2006. He cited in support the cases of Ogunsola v. Usman (2002) 14 NWLR (Pt. 788) 636 AT 657 para D; Thani v. Saibu (1977) 2 SC at page 89; Emegokwue v. Okadigbo (1973) 4 SC at 113; Eyo v Inyang (2001) 8 NWLR (Pt. 715) at 304, 329-330 paras H-A.
Appellant submitted that from the provisions of Order 7, Rule 9 of the High Court of Lagos State (Civil Procedure) Rules, 2004personal service effected on a director, secretary, trustee or other senior principal or responsible officer of the Organizations, or by leaving it at the registered principal or advertised office or place of business of the organization within the jurisdiction is proper service.
Appropriate representative of the company/Appellant was served. To enable the Court and the Appellant ascertain that the appropriate official (Secretary, Managing Director, Trustee etc) as stipulated in Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules, 2004 was the person actually served. He cited in support the case of Kisari Investment Limited v. La Terminal Company Limited (2001) 16 NWLR (Pt. 739) 406 paras F-G; Wimpey Limited v. Balogun (1986) 3 NWLR (Pt. 28) 324; Cross River Basin & Rural Development Authority v. Sule (2001) 6 NWLR (Pt. 708) 194.
Appellant contended that where a Court is faced with affidavits of the parties which are irreconcilably in conflict, in order to resolve the conflict properly, the Judge hearing the case should first hear oral evidence from the deponents, before coming to a conclusion.
And a situation where as in this case, the learned trial Judge without calling oral evidence to resolve the conflict in the affidavits of the parties, went ahead to base her conclusion on one of the conflicting affidavits, amounts to a denial of fair hearing. He cited in support the cases of Atanda v. Olanrewaju (1988) 4 NWLR (Pt. 89) 394 at 407-408 paras H-A; Oloko v. Ube (2001) 13 NWLR (Pt. 729) 61 at 182 paras E-H; FBN Plc v. May Med Clinics (2001) 9 NWLR (Pt. 717) 28 at 38 paras D-F; Momah v. Vab Petroleum INEC. (2000) 4 NWLR (Pt. 654) 534 at 556-557 paras G-A; Chairman NPC V. Chairman Ikere L. G (2001) 13 NWLR (PT731) at 540; Mark v Eke (2004) 5 NWLR (Pt. 865) at 54 paras C-D.
He urged this Court to resolve this issue in favour of the Appellant.
The Appellant argued on the third issue that, the trial Judge was wrong when he entered judgment in default of defence against the Appellant despite the overwhelming facts placed before him. That issue of jurisdiction is very fundamental to every adjudication. This is because where there is any defect in the jurisdiction of the Court, the entire proceedings of the Court no matter however well conducted, are thereby rendered a complete nullity.
Counsel pointed out the fact that the Appellant in its Counter-Affidavit and Further & Better Counter-Affidavit sworn to on 26th February, 2007 and 5th March, 2007 respectively deposed to the fact that the Appellant had filed an appeal contesting the jurisdiction of the lower Court on the issue of non-service of the originating processes on the Appellant. The Appellant in its counter-affidavit also deposed to the fact that if the Appellant filed a statement of defence to the suit, such a step will render the Appellant’s subsisting appeal otiose. The Appellant exhibited its proposed statement of defence before the lower Court to show that the Appellant has a good defence to the suit. See pages 76-87 of the record of appeal.
He argued that the learned trial Judge ought to have taken into consideration the depositions in the Appellant’s counter-affidavits, and the fact that the Appellant is contesting the jurisdiction of the lower Court at the Court of Appeal on the issue of service of the originating processes on the Appellant. That if the lower Court had given consideration tothese facts, it would have declined to enter judgment against the Appellant in default of defence. The lower Court would not have shut out the Appellant, or deny the Appellant an opportunity of having the case against it decided on the merit. Counsel submitted that the lower Court has an abiding duty to ensure that the suit is heard on the merit, and that the appeal which was pending is not rendered an academic exercise. He cited in support the cases of Mohammed v. Husseini 14 NWLR (Pt. 584) 108 at 146 para F; Lamurde v. Adamawa State J.S.C (1999) 12 NWLR (Pt. 629) 86 at 101 paras C-D; Ademakinwa v. Faremi (1968) Unreported S.C 37/1968; Ejiwunmi v Costain (W/A) Plc (1998) 12 NWLR (pt 576) 149 at 167 paras C-D; Wakwah v. Ossai (2002) NWLR (Pt. 752)548 at 562 paras F-G. Relying on these cases Appellant submitted that there were cogent facts deposed to in the Appellant’s counter-affidavit which the trial Judge ought to have considered and relied upon in coming to the conclusion of allowing this suit to be determined on the merit rather than entering final judgment against the Appellant in default of defence.
In their further submissions, Appellant contended that the res is the jurisdiction of the Court below over the Appellant who alleged non-service of originating processes of the lower Court on it.
It was admitted, Appellant did not file an application for stay of proceedings before the lower Court. That even at that, the lower Court ought not to have proceeded to enter final judgment against the Appellant in default of defence.
It was suggested by counsel that, the lower Court could have adjourned the matter in order not to defeat the cause of justice. That the Supreme Court has urged the lower Courts not to disregard the existence of a Notice of Appeal filed before it citing in support the cases of Ikabala & Ors v. Ojosipe (1972) 4 S.C 86 at 92; Odunsi v U.N.M.I.C Ltd (1998) 2 NWLR (Pt. 536) 95; Bango v. Chado (1998) 9 NWLR (Pt. 564) at 139 E-H.
Appellant reiterated the fact that, the Court below had a duty to preserve the res. It is incumbent on the Court below to stay all further proceedings or adjourn the proceedings to await the outcome of the appeal. He cited in support the case of Shekoni v. Ojoko 14 WACA 504.
He concluded by urging this Court to resolve this issue in favour of the Appellant.
The Respondent filed his brief on 22/11/2019 but was deemed properly filed on 9/12/2020. The respondent argued in the brief that the two decisions of the lower Court are right and ought to be left to stand. He pointed out the fact that the preamble to Order 3 of the High Court of Lagos State Civil Procedure Rules, 2004 is headed “Form and Commencement of Action” which presupposes that the said Order 3 is the relevant provision governing commencement of action under the said Rules of Court. Order 3 Rule 3 provides as follows:
“Except in the cases in which any different forms are provided in these Rules, the Writ of Summons shall be in Form 1, with such modifications or variations as circumstances may require.”
Respondent, referring to the above Rule 3, of Order 3, contended that what the Rule required was the endorsement of the name and address of the legal practitioner representing the Claimant and nothing more on the Writ. The only signature required on the Writ was that of the Registrar of the trial Court, contrary to the argument of the Appellant, that the Writ was not competent. The said Form 1, simply required the endorsement of the name and address of the legal practitioner representing the Claimant and nothing more on the Writ. The implication, therefore, is that the Rules never intended the presence of the signature of the Respondent’s Counsel to be there at all, or even if was intended, counsel’s signature was not mandatory. It was noted by counsel that the 2004, Rules of the trial Court had limited the signatures on the Writ to those of the Registrar and the Bailiff. Any other signature would have been a surplusage, and an innovation by either the claimant or the claimant’s counsel. He cited in support of his assertion, the case of Olafisoye v. F. R. N (2004) 4 NWLR (Pt. 864) 580 at 643 paras C-E.
Respondent argued that if the High Court of Lagos State (Civil Procedure) Rules of 2004, specifically provided for a Writ of Summons to be signed by the Registrar and the Bailiff responsible for service of the Writ on a defendant, the absence of the requirement of the signature of a claimant’s counsel on the Writ, cannot be an omission, but a deliberate intendment of the Rules of Court. Claimant’s counsel not signing the Writ of Summons, therefore, cannot, in the circumstance, be classified as an irregularity, let alone a fundamental vice capable of ousting the trial Court’s jurisdiction as being contended by the Appellant in this case. He cited in support the case of Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387.
Counsel reiterated the fact that the case of the Respondent, herein is even better, in that the Form 1, in the Appendix of the 2004, Rules, shows clearly that what was required to be endorsed on the Writ was first, the signature of the Registrar issuing directives to the Defendant, and secondly, the signature of the process server, who, inevitably, was the Court’s bailiff. He cited in support the case of Famfa Oil Ltd v. A.G Fed (2003) 18 NWLR (Pt. 852) 453 paras G-H wherein the Registrar, instead of the Judge of the Federal High Court, signed the originating Summons. The Supreme Court overturned the decision of the Court of Appeal, which declared the Summons a nullity for that reason and reinstated the trial Court’s decision which declared the anomalous signing by the Registrar an irregularity which never occasioned any miscarriage of justice to the Respondents. In the case of S.P.D.C.N v Gbeneyi (2019) 13 NWLR (Pt. 1689) 272,294 para D, the objection was that the Writ of Summons in the suit, although signed by the Judge, was not signed by the legal practitioner for the plaintiff. In dismissing that objection, this Court held that “The failure of the plaintiff’s legal practitioner to sign the Writ of Summons at the lower Court is of no effect. It does not vitiate the proceedings.”
Premised on the above cases Saude v. Abdullahi and the anomalous and incompetent signing by the Registrar in Famfa Oil Ltd v A.G. Fed (supra), Respondent contended that these were not enough to oust the jurisdiction of the trial Courts in both cases, he argued that the absence of the signature of the Claimant’s counsel on the Writ in the case at hand, should not matter either. As already stated above, Form 1 in the Appendix to the 2004, Rules of the trial Court, applicable to the instant case, does not imply that the Writ should be signed by the Claimant’s counsel, just as counsel’s signature was not required on the Writ under the 2000,Rules of the Federal High Court pursuant to which S.P.D.C.N v. Gbeneyi (supra) arose. The expressed signatories to the Writ under the defunct 2004, Rules of the High Court of Lagos State were the Registrar and the process server (bailiff) of the trial Court. The absence of a requirement for signature of counsel in Form 1, is therefore deliberate, and a non-necessity, as the Rules only require the signature of the Registrar and that of the process server, respectively. He urged this Court to so hold.
In his further submissions, on Order 3, Rule 2(2) of the High Court of Lagos State (Civil Procedure) Rules, 2004, which provides that “Where a Claimant fails to comply with Rules 2 (1) above, his originating processes shall not be accepted for filing by the Registry”. Respondent contended that the Writ of Summons necessarily needs to be accompanied by the aforementioned processes in order to validly commence an action under the 2004, Rules of the trial Court. Failure to comply meant that the Writ could not even be accepted for filing, and where it is accepted, the proceedings based on such lone Writ would be a nullity. He cited in support the cases of Abe v. Skye Bank (2015) 4 NWLR (Pt. 1450) 512 at 536 paras B-D; Gambari v. Mahmud (2010) 3 NWLR (Pt. 1181) 278 at 296 para A.
Respondent reiterated the fact, that since the Writ of Summons was just the first of the several documents (processes) constituting the Originating Processes under the 2004, Rules of the trial Court, he submitted that the signing of the Writ by the Registrar of the trial Court, and the signing by the Respondent’s counsel of all other documents (processes) accompanying the Writ, represented a full and/or sufficient compliance with the said Rules of Court. He argued that the Appellant’s attempt to isolate the Writ which in any event was signed as required by the Rules from the rest of the documents which constituted the originating processes under the 2004, Rules, is only to breath life into an otherwise futile appeal. He urged this Court to so hold.
On the second issue, “whether upon the affidavit evidence furnished by parties, the lower Court’s decision to the effect that the 1st Defendant was properly served with the originating process can be faulted”. Respondent referred to the Black’s Law Dictionary (Eighth Edition, at page 1399) definition of service of process as “The formal delivery of a Writ of Summons, or other legal process”. He cited the case of N.N.P.C v. Orukwo (2015) 10 NWLR (Pt. 1468) 527 at 546 paras A-B. He stated the case of the Respondent that the originating processes in this case were served on the Appellant by the Sheriff of the lower Court as required by law. The affidavit of Service dated 16th January, 2006 filed by the Court’s Sheriff is a verifiable proof to that effect. The Appellant denied service and filed a motion to set aside service. The lower Court disagreed with the Appellant and held that the service effected on it was proper service as same was done in compliance with the provisions of Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules, 2004.
Respondent pointed out that in the counter-affidavit opposing the Appellant’s motion, the sheriff/bailiff who effected service on the Appellant made it clear that he served the Appellant’s Company Secretary who accepted service but refused to sign an acknowledgment for it, and that he left the processes at theoffice of the Appellant as required by the Rules of the lower Court. He reiterated the fact that the above mode of service adopted by the Sheriff/Bailiff of the lower Court is in tandem with the provisions of Order 7 Rule 9 of High Court of Lagos State (Civil Procedure) Rules, 2004 which states that originating process may be served on a corporate entity like the Appellant by delivery to a 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 Organisation within the jurisdiction. In this case, the Sheriff/ Bailiff clearly served the processes on the Appellant’s Secretary who refused to sign an acknowledgement to that effect. Respondent contended that service was completed the moment the Sheriff/Bailiff left the processes with the Appellant’s Secretary at the office of the Appellant regardless of the refusal of the Secretary to sign an acknowledgement. In other words, the failure of the Secretary to acknowledge service necessitated leaving the processes at the premises of the Appellant. The service on Appellant occurred in two folds, first, service on the Secretary who refused to sign an acknowledgment, secondly, leaving the processes in the office of the Appellant in the presence of the Appellant’s Secretary.
In support of this service, counsel cited the cases of Skye Bank (Nig) Plc v. Okpara (2015) 17 NWLR (Pt. 1489) 613 at 639-640 paras B-E; N.B.C Plc v. Ubani (2014) 4 NWLR (Pt. 1398) 421 at 450-451 para E, D-A.
It was further submitted by Respondent that where service is denied, the authentic proof of service is usually an affidavit of service deposed to by the Bailiff who effected service. He cited the case of Victor v. F.U.T.A (2015) 4 NWLR (Pt. 1448) 1 at 35 paras A-B. He noted that the Appellant’s Secretary who deposed to the affidavit in support of the Appellant’s application to set aside service dated 14th September, 2006 merely stated that she was on a casual leave and was not in the office on the day service was effected on her. And that a bare assertion that she was not served with the said processes is not enough to nullify the sworn affidavit and counter-affidavit of the Sheriff/Bailiff of the lower Court on the issue of service of processes onthe Appellant. In that the law requires that any person denying service of Court process at any given time, must furnish adequate particulars of his or her whereabouts on the day, or at the time the disputed service was effected. Failure to do that is fatal to every such denial of service. He cited in support of his assertion the case of Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274 at 349-350 paras G-C.
Premised on the above case, Respondent contended that the Appellant’s company secretary merely denied service on her by stating that she was on casual leave as at the time service was supposed to have been effected on her. She however failed to state her exact whereabouts (with proofs) on the 30th of December, 2005, when service was effected. He noted that no Leave Letter was presented in evidence by the Appellant, and no particulars of Secretary’s whereabouts or itinerary on the said date was made available to the lower Court. Counsel contended that the Appellant’s Company Secretary could have provided the required particulars of her whereabouts on the said 30th December, 2005, by filing a counter-affidavit to the Bailiff’s Affidavit of service, as it is elementary that Affidavit of service is prima facie evidence of service on the Appellant. He cited in support of his contention the case of J & J Techno (Nig) Ltd v. Y.H.Q.S Ltd (2015) 8 NWLR (Pt. 1460) 1 at 24 paras G-I.
Arguing further, Respondent contended that they did the needful by ensuring that the Bailiff filed an affidavit of service, which is dated 16th, January, 2006, and is a prima facie evidence of service on the Appellant. It was noted by Respondent, that the Appellant did not challenge the said Affidavit of Service, but waited until the 14th day of September, 2006 to file an Application praying the Court to set aside service of the processes on the 2nd Defendant (For having been served with a “stale” writ), while in the case of the 1st Defendant, it was contended that the service never happened. He wondered how the lower Court could have set aside service which, according to the Appellant, never happened. In that the Appellant is not saying that it was irregularly served, but that it was never served with the originating processes of the suit. Whereas, an irregular service can be set aside, non-service, on the other hand, cannot be set aside as there is really nothing to set aside. It was further submitted by Respondent, that the Appellant’s denial of service is negated by the relief sought on the face of its Motion dated 14th September, 2006, which seeks to set aside service of processes, as opposed to a prayer that the lower Court should decline jurisdiction over the 1st Defendant, for failure to serve the originating processes on it. That it is therefore clear that the Appellant was served, but its contention was that the service was improper, and not that it was not served at all. Counsel contended that no argument was canvassed by the Appellant on the inappropriateness of the service on it, and no ground of appeal was raised towards same. The validity of the service is not challenged and this Court was urged to so hold. In his further submissions, he contended that it is trite that where a party is challenging service, the party should file a counter-affidavit to the affidavit of service deposed to by the Bailiff. He cited in support the cases of Maduka v. Ubah 2015, 11 NWLR (Pt. 1470) 201 at 221 paras F-H; Fatokun v. Somade (2003)1 NWLR(Pt. 802)431 at 447 paras G-H.
Respondent reiterated the fact, in this instant case the Appellant failed to file a counter-affidavit in response to the Affidavit of service deposed to by the Court Bailiff, but rather opted to bring a fresh application to challenge service. But that the Appellant however, failed to explain in the supporting affidavit to the application, the where about of the Appellant’s company Secretary on the 30th of December, 2005, being the date she was said to have been served with the originating processes. All that was stated in the said affidavit was that the Secretary, was on a causal leave. What the Appellant meant by “casual leave” was never explained. In fact, the said company secretary who was actually the despondent to the Affidavit in support of Application challenging service failed to satisfactorily explain her whereabouts on the 30th day of December, 2005, when the service was effected. It was noted by counsel, that the deposition in the counter-affidavit to the Motion to set aside service was never challenged by the Appellant, who could have filed a further affidavit, but chose not to. The effect of this is that the deposition of the Sheriff/Bailiff in the said counter-affidavit was not denied, and is therefore deemed admitted. Therefore the lower Court was right to have come to the conclusion that the Appellant was duly served with the originating processes of the suit.
In arguing issue three, “whether there was before the lower Court any conflict between the affidavit of the Appellant and the counter-affidavit of the Respondent with respect to the issue of service of the originating process on the Appellant; and if yes, whether oral evidence is the only means by which such conflict could be resolved? Respondent argued that there was no conflict between the affidavit supporting the Appellant’s Motion to set aside service, and the counter-affidavit deposed to by the bailiff of the lower Court affirming service of the originating processes of the suit on the Appellant. This position is predicated on the fact that the affidavit of the Appellant (dated 14th September, 2006,) is devoid of the necessary particulars required to successfully challenge service, whilst the Respondent’s counter-affidavit (dated 9th October, 2006)contains the requisite details regarding what was served on the Appellant, how and on whom same was served. The depositions in the counter-affidavit were not controverted via any further or reply affidavit. The implication of the failure to reply to the counter-affidavit is that the contents thereof had been admitted by the Appellant. He cited in support the cases of Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 124) 174 paras F-G; Lawal v. F. R.N (2013) 3 NWLR (Pt. 1342) 541 at paras B-E.
Respondent argued that there is no basis for the claim that there was a conflict between affidavits, which the lower Court failed to call oral evidence to resolve. In that there could not have been a conflict between the credible and the doubtful; the adequate and inadequate. Whereas the counter-affidavit filed by the bailiff of the lower Court on behalf of the Respondent was credible and legally unimpeachable, same could not be said regarding the affidavit of the Appellant filed in support of the Motion to set aside service. In the case of the former, there was no question as to whether the address of the place where service was effected by the bailiff was theAppellant’s address or not. There was no question whether the Appellant’s office opened for business on the fateful day or hour. On the other hand, the Appellant’s Secretary failed to give adequate account of her own whereabouts on the 30th December, 2005 as to substantiate her claim that she was not at work on the day, and so could not have received any processes on behalf of the Appellant. If the Appellant’s Secretary was not at work on the said date, the question as to where exactly she was could only have been answered by the said Secretary herself. But she failed to answer that question as required by law. He cited in support the case of Ahmed v Ahmed (2013) 15 NWLR (Pt. 1377) 274 at 349-350 paras G-C.
Respondent further contended that, a Court confronted with conflicting affidavits may resolve such conflict by documentary evidence before the Court, and to that extent, need not call oral evidence in the circumstance. He cited in support the cases of Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 394 at 417 paras C-G; Ezegbu v. F.A.T.B (1992) 1 NWLR (Pt. 220) 699 at 720 paras A-B.
He reiterated the fact that the failure of the Appellant to state the exact whereabouts of its company secretary on the 30th of December, 2005, prevented any conflict from arising between the Appellant’s affidavit denying service, and the Respondent’s counter-affidavit affirming service. Similarly, the failure of the Appellant to deny the depositions in the Respondent’s counter-affidavit. The relative strength of the affidavit, and the counter-affidavit was also a factor which must have obviated the need to call for oral evidence to resolve any conflict in the circumstance. Respondent contended that the lower Court was right to have resolved whatever conflict there might have been between the affidavit evidence furnished by the parties without any resort to oral evidence. That, besides the endorsement copy of the writ of summons at page 37 of the record of appeal, which the Appellant’s Secretary refused to sign, there was also a piece of documentary evidence which could not have escaped the attention of the lower Court in the circumstance. He cited the case of Bawa v. Phenias (2007) 4 NWLR (Pt. 1024) 251 at 267-268 paras G-A.
Respondent further pointed out the contradiction inherent in the Appellant’s Motion to set aside service dated 14th September, 2006. The Appellant via the said motion sought to set aside service of the originating processes in the suit. In the supporting affidavit to the said Motion, the Appellant’s company secretary claimed that the service of the processes never occurred. Respondent posed the question if the service never occurred, how then can same be set aside? He surmised that the entire circumstances of the case (including the fatal contradiction between prayer 2 of the Motion, and the deposition in the supporting affidavit thereof) must have weighed heavily on the mind of the lower Court to the effect that the issue of service raised by the Appellant was resolved without a declaration of conflict between the affidavit and counter-affidavit of the parties. He further submitted that even if such conflict had been declared, the lower Court could have resolved same based on the substance of the affidavit before the Court.
In concluding, respondent contended that there was no conflict between the affidavit of the Appellant and the counter-affidavit of the Respondent, and that even if therewas any such conflict, the lower Court could, and did resolve same by weighing all the material facts before coming to the decision embodied in the ruling of the lower Court dated 30th November, 2006.
The fourth issue is whether the lower Court was right to have delivered judgment in favour of the Respondent in view of the uncontroverted affidavit evidence furnished by the Respondent.
The position of the law on affidavit evidence was stated by Respondent i.e that once affidavit evidence is uncontroverted it remains good evidence which the Court is entitled to act upon. He cited in support of his assertion the case of C.B.N v. S. C. S. B. V (No. 2) (2015) 11 NWLR (Pt. 1469) 1 at 16 paras B-C.
Counsel argued that the lower Court rightly held that the Appellant had no defence to the suit, as there was nothing before the Court to show otherwise. That the Appellant failed to file a statement of defence to the Respondent’s Statement of Claim, therefore Respondent’s claim was deemed as admitted in line with the settled principles of law, that uncontroverted facts are deemed admitted, and the Court must accept them as true. He cited in support the cases of Yar’adua v. Yandoma (supra) 174 paras F-G; GE Int’l Operations Ltd v Q-Oil & Gas Services (2016) 1 NWLR (Pt. 1520) 304 at 330-331 paras F-D.
Respondent contended that the legal implication of Appellant’s refusal to file a defence to the suit is that the Respondent’s claim was admitted, having not been denied. Therefore, the lower Court was in order to have acted accordingly by giving judgment in favour of the Respondent. He cited in support the cases of Honika Sawmill (Nig) Ltd v. Hoff (1994) 2 NWLR (Pt. 326) 252 at 270 paras F-G; Bayam v. Agana (2010) 9 NWLR (Pt. 1199) 215 at 233 paras A-C.
The point was reiterated by counsel, that Appellant did not controvert or challenge the Writ of Summons and Statement of Claim by a statement of defence. The Respondent’s application for default judgment was therefore in order. He cited the cases of Obiegue v. A.G. Federation (2014) 5 NWLR (Pt. 1399) 171 at 207 paras G-H; C.B.N V S.C.S.B.V (No. 2) (supra) 16 paras B-C; GE Int’l Operations Ltd v Q-Oil & Gas Services (supra).
Counsel contended that Order 20, Rule 1, of the 2004 , Rules of the lower Court applicable to the instant case and Order 20(1) of the High Court of Rivers State considered in GE Operation’s case are impari materia and that the principles relied upon in that case are applicable to this case. When the Appellant herein (then a defendant) failed or refused to file a defence to the suit, the Respondent merely exercised his right under the Rules of the lower Court, which the learned trial Judge rightly upheld by giving judgment to the Respondent upon his statement of claim.
Arguing further, Respondent contended that Appellant having elected not to file a defence to the suit or take all the necessary steps to pursue an appeal against the ruling which validated the service of the originating processes of the suit which was effected on it, the Appellant cannot in good faith complain about the consequences of the strategy it adopted.
On the findings of the lower Court, counsel surmised that it points to the fact that the Appellant never wanted to defend the suit, but was all out to frustrate same. In that the Appellant first denied service, and filed application to set aside a service which it claimed did not exist. The lower Court dismissed that application, Appellant refused to file a defence to the suit. He cited the case of Nabore Properties Ltd v. Peace Cover (Nig) Ltd (2015) 2 NWLR (Pt. 1444) 440 at 466 paras B-D.
Respondent contended that the Appellant failed/refused to file any application for stay of proceedings, before the lower Court. He noted that a Notice of Appeal does not operate as a stay of proceedings, therefore the lower Court was in order to have continued with the proceedings and delivering the ruling about which the Appellant is now complaining. On the authority of Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254 at 277 paras H-A and 278 para H, Respondent submitted that only a pending application for stay of proceedings either before the lower Court or before this Court could have prevented the lower Court from proceeding with the hearing of the Motion for judgment in default of defence, which was heard and determined by the lower Court on the 7th March, 2007. The Appellant had already been brought within the jurisdiction of the lower Court when it delivered its ruling in favour of the Respondent in this case on 30th, November, 2006, when service of the originating processes on the Appellant was confirmed.
In concluding, Respondent surmised that Appellant did not controvert nor challenge facts and evidence furnished by the Respondent. Therefore, it has only itself to blame for choosing not to contest the claims of the Respondent at the lower Court. He urged this Court to dismiss the instant appeal with substantial costs and affirm the decisions of the lower Court dated 30th of November, 2006 and 7th March, 2007 respectively.
I am aware that the Appellant filed a reply brief, and therefore would draw from it when and where necessary.
The High Court of Lagos State (Civil Procedure) Rules, Form 1 in the Appendix to the 2004 Rules of the trial Court applicable to the instant case does not imply that the writ should be signed by the Claimant’s counsel. The expressed signatories to the Writ under the 2004, Rules of the High Court of Lagos State were the Registrar and the process server (Bailiff) of the trial Court.
Since the introduction of the Uniform Rules, non-compliance with the provisions of the rules relating to filing of originating processes such process should not be accepted for filing and if filed will render a proceeding null.
Order 3, Rule 2(2) of the High Court of Lagos State (Civil Procedure) Rules, 2004 applicable at the time this suit was filed provides that:
“Where a claimant fails to comply with Rules 2(1) above, his originating processes shall not be accepted for filing by the Registry.”
This Order 3 makes it mandatory that Originating processes must be front-loaded both in the claim and the defence. The Courts have consistently held that failure to comply with the provisions attracts nullification of the proceedings. See Abe v. Skye Bank (2015) 4 NWLR (Pt. 1450) 512 at 536 paras B-D; Gambari v. Mahmud (2010) 3 NWLR (Pt. 1181) 278 at 296 para A.
The Writ of summons was the first of the several documents (processes) constituting the Originating Process under the 2004 Rules of the lower Court, the signing of the writ by the Registrar of the lower Court, and the signing by the Respondent’s counsel of all other documents (processes) accompanying the writ represented a full and sufficient compliance with the said Rules of Court. The Appellant’s attempt to single out the writ from the other documents which constituted the originating processes under the 2004 Rules, is not tenable. In that the jurisdiction of the lower Court is not ousted by virtue of the fact, that the claimant’s counsel did not sign the writ of summons in this instant case. In the light of the above , l resolve Issue 1, against the Appellant.
Issue 2
On issue 2, Appellant argued that the trial Judge was wrong, when he held that the Appellant was properly served with the originating processes in this matter.
I have carefully studied the submissions of the two senior counsel on this issue, and my understanding of the complaint founding the instant appeal, is the contention by the Appellant that the issue of service of Originating process on a company such as the Appellant herein is critical to the jurisdiction of the Court. It was the further contention of counsel that the lower Court lacked the jurisdiction to have proceeded with the case, the Appellant not having been served according to the dictates of the law, and sundry other reasons. I intend to examine therefore, whether the Appellant was duly served as required by the law, and further whether the lower Court’s refusal to set aside its judgment ismaintainable.
It is common ground that service of process is fundamental, the absence of which renders all proceedings taken void ab initio. This no doubt remains the position of the law, established in a long line of cases including Mark v. Eke (2004) 1 SC (pt.11) 1, where Musdapher, JSC stated that: “when an order is made or judgment entered against a defendant who claimed not to have been served with the originating process such an order or judgment becomes a nullity if the defendant proves non-service of the originating process.” See, Okoye vs. Centre Point Merchant Bank Ltd(2008) 15 NWLR (Pt. 1110) 335, NBN Ltd vs. Guthrie Nig. Ltd (1993) 3 NWLR (Pt. 284) 643 and NEPA vs. Uruakpa (2010) LPELR-4409 (CA).
Of equal importance is the fact the procedure for service of Court processes on corporations, is governed by Section 78 of the Companies and Allied Matters Act, which requires that the writ be served by giving same to any director, trustee, secretary or other principal officer at the registered office of the company or by leaving same at its registered office. Further emphasis was placed on this fact when the Supreme Court per Mustapher, JSC in thecase of Mark vs. Eke (Supra) at p. 1478, stated that:-
“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. The Companies and Allied Matters Act by Section 78 makes a provision as to how to serve documents generally on any company registered under it. By this, a Court process served on a company must be at the registered office of the company, and it is therefore bad and ineffective if it is done at a branch of the company. 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.”
The argument of the Learned Senior Counsel for the Appellant is that since the originating processes were not served on the Appellant in accordance with the law, the purported service is incurably bad and any judgment arising there from on the defective service vitiated the judgment.
It is the case of the Respondent that the originating processes in this case was served on the Respondent by the Sheriff of the lower Court as required by law. The affidavit of service dated 16thJanuary 2006, filed by the Court’s Sheriff on page 36 of the record of appeal is proof to that effect. Appellant denied service, and filed a motion to set aside service. The lower Court held that the service effected on it was a proper service as same was done in compliance with the provisions of Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules, 2004.
Appellant denied service, stated that contrary to the affidavit of service filed by the bailiff, its company Secretary was not served with the originating processes in the suit, as the said secretary had proceeded on casual leave as at the date on which service was effected. The sheriff/bailiff in the counter-affidavit opposing Appellant’s motion, made it clear that he served the Appellant’s Company Secretary who accepted service, but refused to sign an acknowledgment for it, and that he left the processes at the office of the Appellant as required by the rules of the lower Court.
The relevant paragraphs of the counter-affidavit dated 9th October, 2006 contained at page 55 of the record of appeal are reproduced herein as follows:-
3. That on the 30th day of December,2005, l went to the office of the 1st Defendant to serve it with the writ, and other processes.
4. That on getting to the said office, l was directed to the Secretary of the Defendant.
5. That l personally served the original process on the secretary of the company who refused to sign for it.
6. That l left the writ and the other processes at the office of the 1st Defendant.
The affidavit of service of the Respondent filed by the bailiff of the lower Court on 16th January, 2006 was attacked by Appellant who argued that 1. The bailiff of the lower Court failed to disclose the name/identity of the person whom he purportedly served personally. 2. Secondly, the bailiff’s affidavit of service did not indicate whether the person served was a female or a male as is expected in the format of the affidavit of service utilized by the said bailiff.
Judicial authorities abound to the effect that leaving process at a company’s registered office is proper service. In the case of Skye Bank (Nig) Plc v. Okpara (2015) 17 NWLR (Pt. 1489) 613 at 639-640 paras B-E this Court relied on Mark v Eke (2004) 5 NWLR (Pt. 865)54 para F-A as follows:
“The mode of service on a limited liability company is different from service of process on natural person. The Companies and Allied Matters Act by Section 78 makes provisions on 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 corporate body in this context, either a company registered under the Companies and Allied Matters Act, 1990 or a statutory corporation such as the respondent in this case, can only be served under the relevant rules of Court by giving the writ of summons or document to a director, trustee, secretary, or other principal officer of the corporate body to be served, or by leaving the same at its registered or head office. It is bad and ineffective to serve at any branch office.”
Likewise in the case of N.B.C. Plc v Ubani (2014) 4 NWLR (Pt. 1398) 421 at 450-451 para E, D-A where it was held inter-alia that:
“Section 78, of the Companies and Allied Matters Act, prescribes that service of processes on a company complies with the rules of the particular Court prevailing in the jurisdiction, which in the instant case was the HighCourt of Cross River State (Civil Procedure) Rules 1987, particularly Order 12 Rule 8 thereof. Then said Rule 8 provides that a Writ may be served, when the suit is against a corporation or a company authorized to sue or be sued in its name or in the name of an officer or trustee, subject to the enactment establishing that corporation or company or under which it is registered as the case may be, by giving the writ or document to any Director, Secretary, or other Principal Officer, or by leaving it at the office of the corporation or company.”
In the case of Victor v. F.U.T.A (2015) 4 NWLR (Pt. 1448)1 at 35 paras A-B it was held that:-
“When service of Court process is denied, the authentic and acceptable prima facie proof of service of process is usually by way of affidavit of service duly sworn to by the Bailiff or any other officer authorized to effect such service”.
The law requires that any person denying service of Court process at any given time must furnish adequate particulars of his or her whereabouts on the day or at the time the disputed service was effected. Failure to do that is fatal to every such denial of service. In thecase of Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) at 349-350 paras G-C the Supreme Court held:-
“If the deponent to an affidavit of service alleges that he served process on the defendant at his residence, and states therein the time and place, as in this case, and the defendant denies it in an affidavit or counter-affidavit, a bare denial would have no weight whatsoever. The Defendant is expected to file an affidavit denying service and giving a truthful rebuttal to the depositions in the affidavit of service. For example, he must depose that:-
A. His residence is not where it is alleged he was served;
B. The bailiff never served him any process;
C. At the time it is alleged that he was served; he was not at home, or not in the country (with proof of his whereabouts).”
Respondent’s counsel rightly pointed out that the Appellant’s company secretary merely denied service on her by stating that she was on casual leave as at the time service was supposed to have been effected on her. That she failed to state her exact whereabouts (with proofs) on the 30th of December, 2005, when service was effected. He noted that no LeaveLetter was presented in evidence by the Appellant, and no particulars of Secretary’s whereabouts or itinerary on the said date was made available to the lower Court. The Appellant’s Company Secretary could have provided the required particulars of her whereabouts on the said 30th December, 2005, by filing a counter-affidavit to the Bailiff’s Affidavit of service as it is elementary that affidavit of service is prima facie evidence of service on the Appellant. See the cases of J& J Techno (Nig) Ltd v. Y.H.Q.S. Ltd (2015) 8 NWLR (Pt. 1460) 1 at 24 paras G-I; Halid Pharm Ltd v. Solomon (2015) 5 NWLR (Pt. 1453)565 at 587 paras C-D.
The Bailiff, filed an affidavit of service which was dated 16th January, 2006, on behalf of the Respondent. By the said affidavit the Respondent had prima facie evidence of service on the Appellant, who did not challenge the said Affidavit of Service, but waited until the 14th day of September 2006, from January, 2006, to file an Application praying the Court to set aside service of the processes on the 2nd Defendant (for having been served with a stale writ), while in the case of the 1st Defendant, it wascontended that the service never happened. The Respondent rightly asked how the lower Court could set aside a service which according to the Appellant never happened? Irregular service can be set aside, non-service cannot be set aside as there is nothing to set aside.
It was rightly submitted by Respondent that the Appellant’s denial of service is negated by the relief sought on the face of its Motion dated 14th September, 2006 which seeks to set aside service of processes, as opposed to a prayer that the lower Court should decline jurisdiction over the 1st Defendant, for failure to serve the originating processes on it. It is clear that the Appellant was served, but its contention was that the service was improper, and not that it was not served at all. There is no ground of appeal raised on inappropriate service on Appellant. Therefore the validity of the service was not challenged. In the case of Maduka v Ubah 2015 11 NWLR (PT1470) 201 at 221 pars F-H this Court held that:-
“Where there is proof of service on a party by means of an affidavit of service by a plaintiff or an officer of the trial Court, the only recommended and acceptable way ofchallenging or rebutting the presumption of such service by the party concerned is by filing of 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 oral argument on the hearing date that he was not served with the motion and other processes in the suit cannot avail him”.
The Appellant failed to file a counter-affidavit in response to the Affidavit of service deposed to by the Court Bailiff, but rather opted to bring a fresh application to challenge service. He did not explain in the supporting affidavit to the application, the whereabouts of the Appellant’s Company Secretary on the 30th December, 2005, being the date she was said to have been served with the originating processes. Rather, all that was stated in the said affidavit was that the secretary was on a casual leave. The Appellant did not elucidate on the casual leave. The Company Secretary was the deponent to the Affidavit in support of the Application challenging service, she failed to satisfactorily explain her whereabouts on the 30th, day of December, 2006, when the service was effected.Likewise, the deposition in the Respondent’s counter-affidavit to the Motion to set aside service was never challenged by the Appellant, who could have filed a further affidavit, but chose not to do so. The deposition of the Sheriff/Bailiff in the said. Counter-affidavit was not denied, and is therefore deemed admitted. The lower Court was right to have concluded that the appellant was duly served with the originating processes of the suit. Consequently, I resolve issue 2 against the Appellant.
Issue 3
I have read the record of appeal, l find that there is nowhere where the Appellant filed a Statement of Defence.
It is settled by litany of judicial authorities of the Supreme Court and other Courts in the cases of Honika Sawmill (Nig) Ltd v. Hoff (1994) 2 NWLR (Pt. 326) 252 at 270 paras F-G; GE Int’l Operations Ltd v. Q-Oil & Gas Services (2016) 1 NWLR (Pt. 1520) 304 at 330-331 paras F-D; Bayam v. Agana (2010) 9 NWLR (Pt. 1199) 215 paras A-C; Yar’adua v. Yandoma 2015 4 NWLR pt 1448 at 140 ratio 17 that:-
“…averments in the affidavit of a party, which are neither challenged nor controverted by his adversary, are deemed admittedand the Court must act on those undisputed averments as being true.”
I have carefully perused the record of appeal, the Respondent premised on the authorities cited above has rightly submitted that upon the facts of this case, the lower Court was right to have delivered judgment based on the Respondent’s writ of summons and Statement of Claim, those having not been controverted or challenged by a Statement of defence. Therefore, Respondent’s application for default judgment in the suit was in order and the lower Court was on solid ground to have granted same. It is trite that where allegations are made (in a suit) against a party who has the opportunity of repudiating same but chose to ignore such allegation, the Court will act on what is before it. See Obiegue v. A.G. Federation (2014) 5 NWLR (Pt. 1399) 171 at 207 paras G-H the Court held that “where evidence is given and allegations are made against someone who has the opportunity of repudiating same but chooses to ignore them, then the Court or whichever body that is seised of the proceedings would act on what is in its possession as established.”
In C.B.N v. S.C.S.B.V (No.2)2015 11 NWLR (Pt. 1469) 16 paras B-C it was held that:-
“Evidence affidavit is a form of evidence which is entitled to be given weight where there is no conflict …Once the affidavit evidence is neither challenged nor controverted, it remains good evidence which a Court ought to rely upon”. Further reliance was placed on Eco lnt’l Bank Plc v. N.U.L.G.E. Jalingo L.G.C (2015) 10 NWLR (Pt. 1466) 49 at 80 paras F-H; N.B.A v. Ojigho (2015) 15 NWLR (Pt. 1481) 186 at 201 paras E-H; Danladi v. T.S.H.A (2015) 2 NWLR (Pt. 1442) 103 at 119-120 paras H-A; C.B.N v. Okojie (2015) 14 NWLR (Pt. 1479) 231 at 258 paras C-E; Febson Fitness Centre v. Cappa H. Ltd (2015) 6 NWLR (Pt. 1455) 263 at 280 para F.
By virtue of Order 20 Rule 1, of the High Court of Lagos State (Civil Procedure) Rules, 2004 the judgment of the lower Court given in favour of the Respondent herein cannot be faulted at all, having arisen from a claim of liquidated money demand against which the Appellant had elected not to contest by refusal to file a defence within the time allowed under the Rules of Court.
The Appellant herein, failed or refused to file a defence to the suit, theclaimant merely exercised his right under the Rules of the lower Court, which the learned trial Judge rightly upheld by giving judgment to the Respondent upon his statement of claim as the Court considered him entitled to.
Having elected not to file a defence to the suit or take all the necessary steps to pursue an appeal against the ruling which validated the service of the originating processes of the suit, which was effected on it, the Appellant cannot in good faith complain about the consequences of the strategy it adopted in the matter.
In the case of Nabore Properties Ltd V. Peace Cover (Nig) Ltd (2015) 2 NWLR (PT 1444) 440 at 446 paras B-D it was held that:-
“…the Courts have over the years stated that a party who fails to take steps to be heard cannot complain of denial of fair hearing.”
The Appellant herein, failed/refused to file any application for stay of proceedings before the lower Court notwithstanding the elementary principle of law that a Notice of Appeal simpliciter does not operate as a stay of proceedings. See the case of Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254 at 277 paras H-A.
The lower Court wasindisputably right to have delivered judgment in favour of the Respondent, in view of the uncontroverted, unchallenged facts and evidence furnished by the Respondent.
This appeal from the foregoing analysis of facts and deductions reached is unmeritorious and consequently is hereby dismissed. The ruling/decision of the High Court of Lagos State in Suit No. LD/2347/2005, per Hon. Justice O.A Ipaye, J., delivered on 30th of November, 2006 and 7th of March, 2007 are hereby affirmed.
I assess costs at N100,000.00 in favour of the Respondent.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Fatima Omoro Akinbami, J.C.A.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree.
Appearances:
Hycent Ubah, Esq.For Appellant(s)
Bamidele Ibironke, Esq.For Respondent(s)
