EGBRI v. OWHOAGA (2022)

EGBRI v. OWHOAGA

(2022)LCN/16441(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, January 14, 2022

CA/AS/483/2016

Before Our Lordships:

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

Between

MR. OGHENEOVO EGBRI APPELANT(S)

And

MR. KESTER OWHOAGA RESPONDENT(S)

RATIO:

WHEN THE DECISION OF COURT WILL BE DEEMED SET ASIDE

The law is that the decision of a Court of competent jurisdiction subsists until set aside on appeal or by the Court that gave the decision where there is authority to do so. See Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187, 221-223 and Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 145,167. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW ON THE JUDGMENT OF COURT

The ruling of the trial Court not having been appealed stands and is binding on the appellant. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW ON MATTERS ON APPEAL

A decision in a particular case cannot be attacked and set aside in an appeal against a different matter. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW ON THE SERVICE OF COURT PROCCESS

Where service of a Court process is required, failure to serve the same goes to the root of the case. This is because it is service of process on the opposite party that confers the Court with jurisdiction to adjudicate on the matter. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW ON SERVICE OF COURT PROCCESS

Where a defendant is not served with the originating process, the Court cannot exercise jurisdiction on the matter and if it does so, the defendant is entitled ex debito justitiae to have the judgment of the Court set aside as a nullity. See Obimonure v. Erinosho (1966) 1 All NLR 250, Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535, Okeke v. Lawal (2018) 12 NWLR (Pt. 1634) 393 and Ezim v. Menakaya (2018) 9 NWLR (Pt. 1623) 113. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW ON AN AFFIDAVIT OF SERVICE DEPOSED TO BY COURT BAILIFF

The law is that an affidavit of service by a bailiff is prima facie evidence of service and if uncontradicted is sufficient to sustain the fact it asserts. See Martin Schroeder and Company v. Major and Company (Nig.) Ltd (1989) 2 NWLR (Pt. 101) 1. JOSEPH EYO EKANEM, J.C.A.

WHETHER AN AFFIDAVIT OF SERVICE DEPOSED TO BY A COURT BAILIFF CAN BE CHALLENGED

Such affidavit of service can only be challenged by an affidavit denying service which must also contain credible facts to rebut the deposition in the affidavit of service. See Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274 and Mgbenwelu v. Olumba (2017) 5 NWLR (Pt. 1558) 169. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW ON AN AFFIDAVIT OF SERVICE DEPOSED TO BY COURT BAILIFF

In Ahmed v. Ahmed supra. 349, Rhodes-Vivour, JSC, opined that an affidavit of service must contain details on the following, that is, when, who, what and where. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW ON AN AFFIDAVIT OF SERVICE DEPOSED TO BY COURT BAILIFF

What the law requires is an affidavit of service setting out the fact, place, mode and date of service and describing the process that was served. See Martin Schroder and Company v. Major and Company (Nig.) Ltd supra, Okoye v Centre Point Merchant Bank (2008) 15 NWLR (Pt. 1110) 335, 352-353 (also reported in (2008) 164 LRCN 1 and Estate of Late Chief Idisi v. Ecodril Nigeria Ltd(2016) 12 NWLR (Pt. 1527) 355, 375. The law therefore does not insist on a statement as to the time of service in the affidavit of service. JOSEPH EYO EKANEM, J.C.A.

WHEN A LEGAL SYSTEM WILL BE ABSURD

The danger of subjecting that ruling to the scrutiny of the lower Court and this Court is as follows; If at the lower Court or in this Court it was or it is found that the lower Court was wrong and the ruling was or is set aside, there would be two conflicting positions of the Courts of the land: one is the ruling of the trial Court refusing to set aside its judgments which remains binding because it has not been appealed against. The second one would be the judgment of the lower Court or this Court setting aside the ruling of the trial Court though there is no appeal against the same. There would therefore be a manifestly absurd situation in the legal system. JOSEPH EYO EKANEM, J.C.A.

POSITION OF LAW ON AN AFFIDAVIT OF SERVICE DEPOSED TO BY COURT BAILIFF

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. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

POSITION OF LAW ON AN AFFIDAVIT OF SERVICE DEPOSED TO BY COURT BAILIFF
…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.”
See also MULTICHEM INDUSTRIES LTD v MUSA & ORS (2013) LPELR – 19960 (CA); CHELLARAMS PLC & ANOR v ADEYEMI & ORS (2018) LPELR 46016 (CA).
The law does not make the issue of time a requirement to be shown in an affidavit of service. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Customary Court of Appeal, Delta State, sitting in Warri (the lower Court) delivered on 17/10/2016 in Appeal No. DCCA/35A/2015. In the judgment, the lower Court affirmed the decision of the Ethiope East Area Customary Court 1, which sat at Isiokolo, Delta State (the trial Court). The trial Court had entered judgment against the appellant and in favour of the respondent granting him declaration of ownership of the land in dispute, perpetual injunction and damages for trespass.

Aggrieved by the decision of the lower Court, the appellant further appealed to this Court by the means of a notice of appeal filed on 24/11/2016 which incorporates three grounds of appeal.

The facts of the case leading to this appeal are that the respondent as plaintiff filed a claim against the appellant at the trial Court claiming a declaration that he is the owner of a parcel of land situate at Obadjere Street, Igun, perpetual injunction and monetary reliefs. The appellant was said to have been served with the Court process, with affidavit of service to that effect filed, and sworn to by a bailiff of that Court. The respondent was on that basis called upon by the Court to proceed with his case when the appellant did not attend the Court. The respondent testified through two witnesses. After several adjournments, without the appellant attending the Court to offer his defence, the trial Court adjourned for judgment, which was delivered on 11/2/2013.

The appellant thereafter filed a motion for the judgment to be set aside but the trial Court dismissed the application, holding that the appellant had been served the process of that Court. The appellant did not appeal against the order dismissing the application; rather he filed an appeal against the judgment. The lower Court heard the appeal and dismissed the same as I have already stated. The appellant therefore filed the instant appeal.

Parties filed and exchanged their briefs of argument pursuant to the rules of this Court and at the hearing of the appeal on 2/11/2021, counsel for the parties adopted their briefs of argument.

In the appellant’s brief of argument, the following issues have been identified for the determination of the appeal:

1. Whether the Ethiope East Area Customary Court 1, sitting in Isiokolo has jurisdiction to hear the case, owing to non-service of the claim on the Appellant herein. (Ground 1).
2. Whether the lower Court exercised its discretion judicially and judiciously when it refused to set aside the judgment of the lower Court, relying on technicalities unknown to the Customary Court Rules 2007 of Delta State. (Ground 2)
3. Whether the principles of natural justice: audi alterem partem and nemo judex in causa sua were not breached by the trial Court and the lower Court in determination of the instant case before it. (Ground 1 and 3).
4. Whether the Ethiope East Area Customary Court has jurisdiction over the matter, despite the non-compliance to ORDER 11 RULE 2(1) and ORDER 111 RULE 2.

Respondent’s counsel formulated the following issues for the determination of the appeal:
1) Whether the lower Court was right to have dismissed the appeal of the appellant and affirmed the judgment of the trial Court (Ground 1).
2) Whether there was any material before the lower Court to warrant it setting aside the judgment of the trial Court (Ground 2).

3) Whether the principles of natural justice were breached in this case (Ground 3).

I shall pause at this stage to state that the respondent filed a notice of preliminary objection to the hearing of the appeal. Argument on the said preliminary objection is at paragraphs 4.1-4.13 of the un-paginated respondent’s brief of argument. The appellant in response to the same filed a reply brief of argument. Argument in response to the preliminary objection is at pages 1-6 paragraphs 2. 1-3. 25 of the said reply brief.

Before the hearing of the appeal, respondent’s counsel sought for and was granted leave to argue his preliminary objection and he referred to and relied on his argument set out in the respondent’s brief of argument in urging the Court to uphold the objection and dismiss or strike out the appeal. Appellant’s counsel, on the other hand, referred to and relied on his reply to the preliminary objection in urging the Court to dismiss the objection.

The preliminary objection is founded on the following grounds:
I. That there is proliferation of issues in appellant’s brief of argument.
II. That issue 4 in appellant’s brief of argument is not tied to or derivable from any ground of appeal.
III. That the grounds of appeal and their particulars do not attack the judgment of the lower Court; rather they attack the ruling of the trial Court.
IV. That the entire appeal is incompetent.

Appellant’s counsel noted that there are three grounds of appeal but four issues. He noted that issues 1 and 3 are distilled from ground 1, which he said is not permissible. He urged the Court to strike out issues 1 and 3. It was his contention that issue 4 does not arise from any ground of appeal and that the grounds of appeal attack the judgment of the trial Court and not the judgment of the lower Court.

Respondent’s counsel contended that issues 1 and 3 are differently distilled, and distinct from each other. He added that issue 1 is on lack of jurisdiction while issue 3 is on the competence of the President of the Area Customary Court to preside over the matter on account of his being related to the counsel for the respondent. In respect of his issue 4, he argued that it is related to grounds 1 and 3 of the grounds of appeal. It was his position that the notice of preliminary objection is incompetent as, according to him, it attacks only some grounds of appeal and not the whole appeal. He finally submitted that the appeal is competent as it is against a final decision of the lower Court.

I shall commence my consideration of the preliminary objection by first considering the point raised by appellant’s counsel to the effect that the preliminary objection is incompetent as it attacks only some grounds of appeal and not the whole appeal. The purpose of a preliminary objection is to terminate an appeal in limine for being incompetent or fundamentally defective. Thus where there are grounds other than the grounds of appeal that are under attack to sustain the appeal, the procedure of preliminary objection should not be used as doing so will be a misconception. See Okafor v Bende Division Union, Jos Branch (2017) 5 NWLR (Pt. 1559) 385, 408. The process to engage in such a situation is a motion on notice. See Dauda v State (2018) 10 NWLR (Pt. 1626) 169,180 and Federal Republic of Nigeria v Atuche (2019) 18 NWLR (Pt. 1674) 338, 342. In this instance, grounds 3 and 4 of the preliminary objection attack the whole appeal and so the procedure of preliminary objection was rightly engaged by the respondent.

I have already stated that there are three grounds of appeal in the notice of appeal but the appellant raised four issues for the determination of the appeal. This is certainly a red flag that there is proliferation of issues in the appeal. In Okponipere v State (2013) 10 NWLR (Pt. 1362) 209, 220, Ariwoola, JSC, stated that:
“Ordinarily once the number of issues formulated from the grounds of appeal are more in number than the grounds, it portends a danger that some of the issues are certainly outside the grounds of appeal and therefore will not be related to each other.”
Issues for determination must be formulated from the grounds of appeal. Ordinarily, an issue should be formulated from a ground of appeal or a combination of grounds of appeal having the same theme or issue running through them. Two issues cannot be framed from one ground of appeal otherwise there is the sin of proliferation of issues. In this appeal, issues 1 and 3 have a common denominator, namely: ground 1, with the addition of ground 3 in issue

3. Appellant’s counsel did not apply to delete ground 1 from his statement as to the grounds from which the issue is derived. It is therefore conclusive that there is proliferation of issues in respect of issues 1 and 3. Respondent’s counsel invited us to strike out the two issues. I am afraid that his invitation does not reflect the law. In State v. Muhammad (2021) 3 NWLR (Pt. 1763) 241, 252, Aka’ahs, JSC, opined as follows:
“There is no law either substantive and procedural that states that once there is a proliferation of issues in an appeal all the issues must be struck out. The Court is free to adopt any issue framed which arises from any ground of appeal or formulate its own issue relevant to the appeal.”
The normal or general penalty for proliferation of issues is to strike out the proliferated issue only and not both issues. See Okereke v Fashawe (2006) 133 LRCN 163, 179, Ebirika V State (2014) 4 NWLR (Pt. 1398) 558, 570, Society Bic Sa v. Charzin Industry Ltd (2014) 4 NWLR (Pt. 1398) 497,531 and Adeyemi v. State (2014) 4 NWLR (Pt. 1423) 32, 152. Consequently, I hereby strike out issue 3 of the appellant.

Issue 4 of the appellant is not tied to any ground of appeal. It is desirable but not mandatory for appellant to identify the ground/s from which an issue is distilled. Nevertheless, failure to do so is not fatal so long as the issue is traceable to a ground of appeal.

In this instance, issue 4 is not traceable to any ground of appeal and does not arise from the decision of the lower Court. For an issue for determination to be competent, it must be formulated from a ground of appeal which in turn must be an attack on the ratio of the decision of the lower Court. SeeUkwuyok v. Ogbulu (2019) 15 NWLR (Pt. 1695) 308, 322 and Sanmi v. State (2019) 13 NWLR (Pt. 1695) 308, 322.

Issue 4 is couched as a jurisdictional issue and the law is that an issue of jurisdiction can be raised at any stage of the proceedings including the Supreme Court by any of the parties without leave or by the Court so long as the parties are afforded the opportunity of addressing the Court on it. See Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583, 600, LADO v. CPC (2011) 18 NWLR (Pt. 1279) 689, 716-717 and BELGORE v. FRN (2021) 3 NWLR (Pt. 1764) 503, 523.

However, a closer look at the issue reveals that it revolves around an alleged breach of the rules of procedure of the trial Court in commencing the case. It cannot be raised for the first time in this Court without leave of Court.
In Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489, 537, Chukwuma-Eneh, JSC, opined as follows:
“The instant challenge of the procedure of commencing this suit by originating summons, therefore, is a fresh issue as it has not been taken in the Courts below. No leave been sought and granted to raise it here.”

Since no leave was applied for and granted to raise and argue issue 4, it is incompetent and I accordingly strike it out.

It was the contention of the respondent’s counsel that the grounds of appeal and their particulars attack the judgment of the trial Court and not the decision of the lower Court, and that this rendered the grounds of appeal incompetent. An appeal to this Court cannot be against the decision of the Customary Court as this Court has no jurisdiction to take appeals from that Court. This Court in the context of this matter can only take appeals from the Court below, that is, the Customary Court of Appeal. See Sections 240 and 245 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The grounds of appeal shorn of their particulars read:
“GROUND ONE
The Customary Court of Appeal erred in law when it upheld the decision of the trial Court…”
GROUND TWO
The Customary Court of Appeal misdirected itself on the facts where it refused to set aside the decision of the lower Court, which dispossessed the Appellant of his landed property he had bought and had lived in for years acting on what the Court considers a defective affidavit of the appellant in support of the motion.”
“GROUND THREE
The Customary Court of Appeal misdirected itself as to the facts when it refused to uphold the…that the principle of natural justice: “Audi Alterem Partem” was undermined at the Area Customary Court.”

The grounds above apparently attack the decision of the lower Court but most of the particulars of the grounds of appeal are statements of what transpired at the trial Court. Nevertheless, this does not detract from the fact that the appeal and the grounds thereof attack the decision of the lower Court. By the particulars, the appellant only traced the alleged errors to the original source, to wit: the trial Court which he contended should have been corrected by the lower Court. In Otu v. ACB International Bank Plc (2008) 3 NWLR (Pt. 1073) 179, 196 it was held that an appellant has the right to complain at the Supreme Court of error in the High Court where the Court of Appeal, in its view, did not correct the error but rather justified it in its judgment. In such circumstance, it is not wrong to trace the error from its origin. So the fact that the appellant made reference, in the particulars of the grounds, to the position of the trial Court does not warrant the conclusion that the appeal is against the decision of the trial Court. This ground of the objection is baseless and I therefore discountenance the same.

On the whole, the preliminary objection succeeds only in part and is allowed only in part. Issues 3 and 4 are hereby struck out for being incompetent.
I now return to the appeal. I shall be guided by issues 1 and 2 of the appellant in the determination of the appeal.

ISSUE 1
Whether the Ethiope East Area Customary Court 1 sitting in Isiokolo had jurisdiction to hear the case, owing to non-service of the claim on the appellant.

Appellant’s counsel submitted that service of Court process is the foundation of any litigation in a Court of law. He added that failure to serve a Court process robs the Court of jurisdiction to hear and determine the matter. He placed reliance on Teno Engineering Ltd v. Adisa (2005) LPELR-3142 (SC) for his position. He contended that the appellant was not served with the originating Court process and thus was not aware of the proceedings leading to the judgment, thus denying him of his landed property. He stated that the trial Court relied on the affidavit of service of a Court bailiff in proceeding to trial. He referred to Ahmed v. Ahmed (2013) LPELR-21143 (SC) and argued that the said affidavit falls short of the requirements of the law. This he said is because (i) the affidavit does not disclose the exact time the process was served and (ii) though a claim was issued from the trial Court, the document purportedly served is a summons. He referred to the Delta State Customary Court Rules for the distinction between the two processes.

In response, counsel for the respondent referred to the notice of appeal at the lower Court and noted that it contains four grounds of appeal. It was his position that only one of the grounds of the appeal, namely the ground on fair hearing, was argued at the lower Court. He submitted that since the appellant did not appeal against the dismissal of the motion to set aside the judgment of the trial Court, the ruling stands and every argument of the appellant against the ruling cannot stand and the appellant in this appeal is restricted to the issue of fair hearing. He posited that the appellant has failed to show why the concurrent finding of the two Courts below that he was given fair hearing should be disturbed.

The notice of appeal to the lower Court is at page 171 of the record of appeal. Four grounds of appeal are set out therein, viz:
I. That the processes and hearing notices were not served.
II. Lack of fair hearing.
III. The appellant is not the party sued.
IV. The land in dispute is different.

Pages 177-185 of the record contains appellant’s brief of argument at the lower Court. In it, two issues were distilled for the determination of the appeal before that Court, namely: fair hearing and refusal to set aside the default judgment. The appellant therefore abandoned only grounds iii and iv of the grounds of appeal contrary to the submission of appellant’s counsel. Nevertheless, what is important is that the motion notice of the appellant to set aside the judgment of the trial Court was dismissed by the trial Court on 13/3/2014. See pages 36-85 of the record. At page 79 of the record, the trial Court held that:
“Ipso facto we hold that the summons in this suit was validly served on the Defendant…”
This finding was re-echoed at page 80 of the record thus:
“We have in the consideration of the first issue reached the conclusion that he was validly served by the bailiff.”

I have already stated in this judgment that there is no appeal against the ruling of the trial Court dismissing the application to set aside the judgment. The law is that the decision of a Court of competent jurisdiction subsists until set aside on appeal or by the Court that gave the decision where there is authority to do so. See Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187, 221-223 and Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 145,167. The ruling of the trial Court not having been appealed stands and is binding on the appellant. That includes the finding that the appellant was validly served with the summons. A decision in a particular case cannot be attacked and set aside in an appeal against a different matter. The attack launched in the appeal against the judgment of the trial Court at the lower Court was misconceived and any pronouncement by the Court on it was made without jurisdiction. Raising the issue again in the appeal before this Court is wrong. The lower Court had no jurisdiction to entertain the issue and so this Court has no jurisdiction to consider it. Issue 1 under consideration is predicated on the service of the originating process at the trial Court and so it is misconceived.

However, in case I am wrong, I shall proceed to consider the merit of the issue. Order 111 Rule 2 of the Customary Courts Rules of Delta State, 2007 provides for service of processes and other documents issued by that Court upon the person to whom reference is made therein by such officers as are authorized by law in that behalf. The necessity of service of process of Court on a party lies in the fact that he cannot become aware of the pendency of a matter against him unless he is served the process of Court. Where service of a Court process is required, failure to serve the same goes to the root of the case. This is because it is service of process on the opposite party that confers the Court with jurisdiction to adjudicate on the matter. Where a defendant is not served with the originating process, the Court cannot exercise jurisdiction on the matter and if it does so, the defendant is entitled ex debito justitiae to have the judgment of the Court set aside as a nullity. See Obimonure v. Erinosho (1966) 1 All NLR 250, Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535, Okeke v. Lawal (2018) 12 NWLR (Pt. 1634) 393 and Ezim v. Menakaya (2018) 9 NWLR (Pt. 1623) 113.

Appellant’s contention is that he was not served with the originating process in this matter. But there is an affidavit of service deposed to by a bailiff of the trial Court, Wilson Ohwarhua at page 7 of the record of appeal, showing that he was served with summon of Court on 19/12/2011. The law is that an affidavit of service by a bailiff is prima facie evidence of service and if uncontradicted is sufficient to sustain the fact it asserts. See Martin Schroeder and Company v. Major and Company (Nig.) Ltd (1989) 2 NWLR (Pt. 101) 1. This position of the law is codified in Order 111 Rule 5(2) of the Customary Court Rules of Delta State which provides that in all cases where service of any process or other document has been effected by a bailiff or such other person as is appointed by the Court an affidavit of service shall be sufficient proof of service unless the contrary is proved. Such affidavit of service can only be challenged by an affidavit denying service which must also contain credible facts to rebut the deposition in the affidavit of service. See Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274 and Mgbenwelu v. Olumba (2017) 5 NWLR (Pt. 1558) 169.

In this instant matter, the contention of the appellant is that the affidavit of service by the bailiff of Court is below the standard required of such an affidavit by the law as:
I. It did not disclose the exact time of service as it shows only that service was effected at “11 O’ clock” without stating whether it was A.M or P.M.
II. Though a claim was issued from the Court, the deponent purportedly served a summons.

In Ahmed v. Ahmed supra. 349, Rhodes-Vivour, JSC, opined that an affidavit of service must contain details on the following, that is, when, who, what and where. The affidavit of service of the bailiff puts the time of service at “11 O’clock” and does not state whether it was P.M or A.M. It is my view that failure of the deponent to state the period of the day is a minor omission that does not affect the efficacy of the affidavit of service and this is so as the exact date of the service was deposed to by the deponent. What the law requires is an affidavit of service setting out the fact, place, mode and date of service and describing the process that was served. See Martin Schroder and Company v. Major and Company (Nig.) Ltd supra, Okoye v Centre Point Merchant Bank (2008) 15 NWLR (Pt. 1110) 335, 352-353 (also reported in (2008) 164 LRCN 1 and Estate of Late Chief Idisi v. Ecodril Nigeria Ltd(2016) 12 NWLR (Pt. 1527) 355, 375. The law therefore does not insist on a statement as to the time of service in the affidavit of service.

The contention that what was issued was a claim but what was deposed to have been served is a summon is curious. Order 11 Rule 2 (1) of the Customary Court Rules provides that:
“Every civil cause or matter shall be commenced by a summons.”

Order 11 Rule 3 (1), (2) and (3) states:
“(1) Application for summons may be made by a written complaint or orally in person.
(2) If application for summons is made in person the clerk shall record all the particulars of the claim or charge which are necessary for the completion of the proper summons.
(3) When making an application for a summons in any matter the applicant shall write the value of the subject-matter to enable such value to be stated in the particulars of claim in the summons.”

A claim by Order 1 means any debt, demand or damage or relief claimed or any claim for the recovery of any chattel or thing sought to be recovered in a Court.

It is therefore clear to me that it is a claim of a plaintiff that is entered in a summons and it is the summons that is then issued and served on the defendant pursuant to Order 111 of the said rules. The definition of summons in Order 1 Rule 2 of the rules quoted by appellant’s counsel is in respect of summons to produce a document or thing to the Court. It does not refer to a summons by which a cause or matter is originated in the Customary Court.

The affidavit of service of the bailiff to the effect that he served a “summon issued out of this Court” is therefore not out of place. There was therefore a valid affidavit of service on the basis of which the trial Court proceeded to the hearing of the matter in the absence of the appellant and on the basis of which the lower Court found against the appellant.
I therefore resolve issue 1 against the appellant.

ISSUE 2
Whether the lower Court exercised its jurisdiction judicially and judiciously when it refused to set aside the judgment of the lower Court, relying on technicalities unknown to the Customary Court Rules 2007 of Delta State.
Appellant’s counsel noted that the trial Court refused the application for the setting aside of its judgment on the ground that there was no valid affidavit in support of the motion. It was his contention that by the ruling, the trial Court sought to arrogate to itself powers which the law setting it up and its rules of Court have not provided. He submitted that there is no requirement that a motion in the trial Court be supported by an affidavit. He referred to Section 28 of the Customary Court Law and Order VIII Rule 3 of the Customary Court Rules of Delta State. He added that Section 265 (1) (c) of the Evidence Act exempts the trial Court from the application of the Evidence Act. He argued that the lower Court misconceived the procedure of the trial Court when it affirmed its ruling. He urged the Court to hold that the motion to set aside the judgment of the trial Court was wrongly refused by the trial Court and the lower Court.

Respondent’s counsel argued that the appellant is basically quarreling with the ruling of the trial Court delivered on 13/3/2014 refusing to set aside its judgment. He noted that there was no appeal against that ruling. He submitted that the appellant cannot question the ruling via the instant appeal.

It is pertinent for me to re-state some of the facts of the case leading to this appeal as they relate to the issue under consideration. The trial Court delivered its judgment on 11/2/2013 having satisfied itself that the appellant had been served the originating process and failed to attend the Court to defend the case. Appellant applied to set aside the judgment. The application was dismissed on 13/3/2014 by the trial Court. No appeal was filed against the ruling by the appellant. The appellant thereafter filed an appeal against the judgment of the trial Court. In his brief of argument filed in the lower Court at pages 126-132 of the record of appeal, appellant’s counsel acknowledged that the appeal was against the judgment of the trial Court. The lower Court in its judgment at pages 219-235 of the record dismissed the appeal. The present appeal is against the judgment of the lower Court.

Since the ruling of the trial Court refusing to set aside its judgment was not the subject of an appeal before the trial Court, neither the parties nor the Court had any business subjecting the ruling to scrutiny. I will not be drawn in to considering that ruling in this appeal. The danger of subjecting that ruling to the scrutiny of the lower Court and this Court is as follows; If at the lower Court or in this Court it was or it is found that the lower Court was wrong and the ruling was or is set aside, there would be two conflicting positions of the Courts of the land: one is the ruling of the trial Court refusing to set aside its judgments which remains binding because it has not been appealed against. The second one would be the judgment of the lower Court or this Court setting aside the ruling of the trial Court though there is no appeal against the same. There would therefore be a manifestly absurd situation in the legal system.
It is for the above reasons that I will and do hereby discountenance appellant’s issue 2.

On the whole, I do not find merit in this appeal. It therefore fails and I accordingly dismiss the same. I affirm the judgment of the lower Court.

I assess the costs of this appeal at N200,000.00 in favour of the respondent against the appellant.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity of reading in draft, the leading judgment just delivered by my learned brother, JOSEPH EYO EKANEM, JCA. He has extensively considered and exhaustively pronounced on the relevant issue(s) germane to the resolution of this appeal. I will only add a few words for emphasis;
The Appellant contended that the affidavit of service by the bailiff of Court; Wilson Ohwarhua is below the standard by law because it did not disclose the exact time of service; it showed only that service was effected at “11 O’ clock” without stating whether it was morning (AM) or evening (PM).

The requirement of the law is that an affidavit of service set out the fact, place, mode, date of service and describe the process that was served. See REV. PROF. PAUL EMEKA v REV. DR. CHIDI OKOROAFOR & ORS (2017) LPELR – 41738 (SC) the Supreme Court per KEKERE – EKUN, JSC it was held that;
“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.
…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.”
See also MULTICHEM INDUSTRIES LTD v MUSA & ORS (2013) LPELR – 19960 (CA); CHELLARAMS PLC & ANOR v ADEYEMI & ORS (2018) LPELR 46016 (CA).
The law does not make the issue of time a requirement to be shown in an affidavit of service. The Appellant made heavy weather of it.
In the light of the above and the elucidate reasoning enumerated in the lead judgment, I too agree that the appeal is void of merit and is accordingly dismissed.
I abide by all consequential orders.

MUSLIM SULE HASSAN, J.C.A.: I have had the benefit of reading in draft the leading judgment just delivered by my learned brother JOSEPH EYO EKANEM, JCA and I am in agreement with his reasoning and conclusions in resolving the issues in this appeal.
I abide by the consequential orders made in the lead Judgment and equally dismiss this Appeal.

Appearances:

OGHENETEGA IPHEGHE, ESQ For Appellant(s)

P. O. UTOBIJOHWO, ESQ (with him, J. N. NKENCHOR, ESQ) For Respondent(s)